ir^ ««. * -. Cornell University Library 
 KF9619.A77 1853 
 
 A complete practical treatise on crimina 
 
 3 1924 020 194 100 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924020194100 
 
WATERMAN'S ARCHBOLD 
 
 f rattier $ Uairhig aito €inktt« 
 
 CRIMINAL CASES. 
 
A COMPLETE 
 PRACTICAL TREATISE 
 
 ON 
 
 CRIMINAL PROCEDURE, 
 
 PLEADING AND EVIDENCE, 
 
 IN INDICTABLE CASES. 
 
 TVITH 
 
 MINUTE DIRECTIONS AND FORMS, 
 
 FOB EVERT CRIMINAL CASE THAT CAN ARISE EITHER AT COMMON LAW, UNDER THE 
 ENULISH STATUTES, OR UNDER THE STATUTES OF THE DIFFERENT STATES, 
 
 COMPRISING .SHE^, 
 
 • i 
 " NEW SYSTEM OP CRIMINAL PROCEDURE, PLEADING AND EVIDENCE," BY Mb. AROHBOLD ; 
 AND ALSO THE TWELFTH AND LAST LONDON EDITION OP " ARCHBOLD'S PLEADING AND 
 EVIDENCE IN CRIMINAL CASES," BY MESSRS. JERVIS AND WELSBY. 
 
 TO WHICH ARE ADDED, 
 
 COMPREHENSIVE NOTES, 
 
 ON EACH PARTICULAR OFFENCE, THE ACCUSATION AND COMPLAINT, PROCESS, ARREST AND 
 EXAMINATION, COMMITMENT, BAIL, INDICTMENT, TRIAL, CONVICTION, JUDGMENT, APPEAL, 
 NEW TRIAL, AND EXECUTION. 
 
 ALSO, 
 
 2ln JJntroirtutorg <&bsq.£, 
 ON CEIMES AND PUNISHMENTS. 
 
 By THOMAS W. WATEEMAN, 
 
 COUNSELLOR AT LAW. 
 
 No rank or elevation in life, no uprightness of heart, no prudence or circumspection of conduct, should 
 tempt a man to conclude that he may not, at some time or other, be deeply interested in these researches. 
 The infirmities of the best among us, the vices and ungovernable passions of others, the instability of all 
 human affairs, and the numberless unforeseen events, which the compass of a day may bring forth, will 
 teach us that to know with precision what the laws of our country have forbidden and the deplorable 
 consequences to which a wilful disobedience may expose us, is a matter of universal concern. 
 
 Sir Michael Poster. 
 
 SIXTH EDITION.— IN THREE VOLUMES. 
 
 VOL. I. 
 
 NEW YORK: 
 
 BANKS, GOULD & CO., 144 NASSAU STREET. 
 
 ALBANY : 
 GOULD, BANKS & CO. 4TB BROADWAY. 
 
 1853. 
 
Entered according to Act of Congress, in the year one thousand eight hundred and fifty-three, 
 
 By BANKS, GOULD & CO. 
 
 In the Clerk's Office of the District Court of the Southern District of New York. 
 
 PRINTED B7 ELLIS BARNES * CO., LAW PRINTERS, 
 
 144 Nassau Street, N. Y. 
 
TO 
 
 CHARLES O'CONOR, ESQ. 
 
 WHOSE PROFOUND AND ACCURATE KNOWLEDGE OP THE LAW, 
 
 BRILLIANT FORENSIC ABILITIES, 
 
 AND UNBENDING INTEGBITT, 
 
 PLACE HIH AMONG THE MOST HONORABLE AND DISTINGUISHED OP OUR PROFESSION, 
 
 Cjjhi €xn\m 
 
 PRACTICE, PLEADING AND EVIDENCE IN CRIMINAL CASES 
 
 is 
 RESPECTFULLY INSCRIBED 
 
 BY THE EDITOR. 
 
PREFACE 
 
 AMERICAN EDITION. 
 
 Criminal jurisprudence, though less metaphysical than commercial 
 law, presents an extensive, diversified and interesting field of inquiry. 
 Every lawyer should be thoroughly acquainted, theoretically at least, 
 if not practically, with the machinery of public prosecutions, the 
 structure of indictments, the rules of criminal pleading and evidence, 
 and the legal principles which are involved in all state trials. 
 
 Public attention throughout the christian world, has, of late years, 
 been greatly aroused upon the subject of crime. The inquiry has been 
 stimulated partly by the fearful prevalence of public offences, and 
 partly by the philanthropic spirit of a highly civilized age. The causes 
 of the increase of crime, the means of its suppression, and the reform- 
 ation of offenders, have been thoroughly investigated and discussed. 
 One of the consequences of this awakened public interest has been a 
 great diminution in the number of capital punishments, compared with 
 those of former times. Dr. Johnson, in the middle of the last century, 
 alludes in one of his Bamblers to stated days, " when the prisons of the 
 metropolis were emptied into the grave." And the fact is notorious, 
 that there were formerly more criminals yearly executed in London 
 alone — though it did not contain then, one half of its present population 
 ■ — than are now doomed to suffer throughout England. Pickpockets, 
 shoplifters, and sheepstealers, along with more atrocious criminals, 
 were indiscriminately carted off, by dozens and scores from Newgate 
 to Tyburn ; and the horrid procession was attended by thousands of 
 the multitude, who from long habit, viewed, either with apathy or 
 with mere feelings of curiosity, the legal massacre. But very few years 
 
•Viii PREFACE TO THE AMERICAN EDITION. 
 
 have elapsed since spectacles scarcely less revolting were common in 
 the United States — when, upon occasion of every public execution, 
 thousands of sober citizens left their quiet pursuits, and flocked, from 
 many miles around, to witness and enjoy the last mortal agony of a 
 poor fellow creature, doomed to suffer the extreme penalty of the law. 
 These things are happily changed, capital punishment is now visited 
 only upon the highest .offences. The accused is no longer incarcerated 
 for months in a noisome dungeon, deprived of the most ordinary com- 
 forts of life. He is entitled to a speedy trial, wherein every aid which 
 eminent counsel can render him, is vouchsafed. And the final doom 
 of the convicted, in place of the barbarous orgies which formerly dis- 
 graced it, has thrown around it the solemn and sacred guard of privacy, 
 and the unostentatious ministrations of religion — those last consolations 
 proffered by the attendant clergyman, breathing pardon and peace to 
 the repentant sinner. 
 
 In the United States, the accused has no reason to complain of the 
 rules of practice in criminal cases ; for they are so narrow and -artificial, 
 as to afford many avenues of escape to the guilty. " Juries look aston- 
 ished at finding a prisoner acquitted, whom they consider to be clearly 
 guilty, merely on account of some technical subtelty which, to their un- 
 learned judgments, must, no doubt, have appeared an absurdity. Pro- 
 secutors are discouraged from seeking to punish offenders, imagining 
 that after expending their time and money in the endeavor, they will 
 have the mortification of seeing the party acquitted from some cause 
 entirely irrespective of the merits. And the offender himself, the 
 hardened offender, acquitted on account of some ' flaw in the indict- 
 ment,' as it is technically termed, exults in his success, laughs at his 
 judges, his jury, his prosecutor, and quits the court more determined 
 than ever to continue his trade of iniquity." Nothing contributes more 
 to restrain crime than the prospect of certain and speedy punishment. 
 And on the other hand, where the chances of escape are numerous, and 
 the penalty of the law contingent and problematical, good order is 
 boldly defied. Hence it is, that the inherent defects in the routine of 
 our public prosecutions, while they operate as great and serious ob- 
 structions to the course of justice, also foster and give impunity to 
 crime. 
 
PREFACE TO THE AMERICAN EDITION. ix 
 
 In England, these matters are beginning to be better understood. 
 The criminal practice of that country, has, of late, undergone extensive 
 and beneficial modifications. The pleadings, once so full of verbiage 
 and useless repetition, have been pruned of their technicalities, and made 
 concise and brief. Amendments are liberally allowed ; the whole mass 
 of little points and legal subtelties in indictable cases, has been swept 
 away ; and hereafter criminal trials will be upon the merits, and the 
 merits alone. 
 
 In these respects, the English criminal practice is greatly in advance 
 of our own. We seem thus far, to have rested satisfied with the obso- 
 lete and artificial system which our forefathers have transmitted to us, 
 preferring to repose in its deficiencies, rather than incur the perils of 
 innovation. The tendency of popular legislation is radical, rather 
 than conservative, we admit ; and hence the importance of extreme 
 caution in the framing of laws which are to affect the administration of 
 justice. Frequent changes, also beget uncertainty, and a spirit of vacil- 
 lation. But so impressed have we been with these dangers, that we 
 have hitherto gone to the other extreme ; and, in law reform especially 
 (with the recent partial exception of the state of New York) we have 
 uniformly been content to follow rather than take the lead. 
 
 The immense tide of emigration from Europe, which for several 
 years past has set towards our shores, has flooded our large cities with 
 the needy of both sexes, and crime has increased among us in a fearful 
 ratio. The existing state of things imperatively demands that we 
 should not only have laws fully adequate to the protection of life and 
 property, but that those laws should be so effectually administered, as 
 to bring upon the guilty, certain and speedy punishment. To this end, 
 there must be a healthy public opinion. No maudling sentimentality 
 must pervert it into the drivelling apologist of crime. Our legislatures 
 must be made to comprehend the wants of our ever changing, and in 
 many respects, peculiar society. It is to be hoped that then our cum- 
 brous criminal practice will be simplified, and stripped of the legal 
 quibbles, the false issues and the sham defences which have so long 
 obscured and deformed it. 
 
 The most recent change in England seems to have been the most 
 sweeping and salutary. It originated with Lord Campbell, who framed 
 
 ■R 
 
X PREFACE TO THE AMERICAN EDITION. 
 
 the bill, and brought it before the British Parliament in 1850. It be- 
 came a law in 1851, and is known as Lord Campbell's Act, 14 & 15 Vict, 
 ch. 100. The general scope and purpose of this act is to do away with 
 the quibbles by which the administration of criminal law was impeded. 
 Mr. Archbold characterizes it, as "one of the greatest and best reforms, 
 in the English criminal law which has ever been made," and he further 
 says that " it is not only calculated to afford great and extraordinary 
 facilities in the administration of criminal justice, but must, in its con- 
 sequences have a serious and most beneficial effect upon the state of 
 crime in the country." After a very thorough examination of it, I am 
 inclined to think that it deserves this high encomium, and that it is 
 worthy the careful study of the American Bar, and the early attention 
 of American legislators. 
 
 Lord Campbell's act does not so alter the former English practice, as 
 to impair, in the least, the utility of Mr. Archbold's work in this country. 
 The changes, as will be presently shown, all relate to minor points ; 
 while the leading features of the English system remain as before. 
 
 For the better understanding the late reform in England, it will be 
 my endeavor briefly to point out the changes that have been effected 
 in that .country, and to accompany what I have to say with explana- 
 tions and references to the existing American practice. 
 
 The English reform consists: 1st, in simplifying the indictment; 2d, 
 in giving to the court extensive powers of amendment ; and 3d, (as a 
 consequence of the other two,) in narrowing the issue and the evidence. 
 
 In order to appreciate the improvement recently made in England 
 in the frame of the indictment, the defect of the -same instrument in 
 the United States, must be constantly borne in mind. That it is ver- 
 bose, prolix and full of mistification, every criminal pleader among us 
 very well knows. The only general requisite of it is, that it shall 
 identify the offence. In effecting this, little or no regard is paid to 
 truth of detail, or brevity of statement. Great particularity being re- 
 quired, the occurrence is stated in many contradictory ways in each of 
 several counts, resulting in much repetition, and what is more, in down 
 right falsehood. As the indictment is the basis of the prosecution, it 
 
PREFACE TO THE AMERICAN EDITION. x i 
 
 should be plain, direct and unequivocal. It should be so, no less in 
 justice to the accused, than for the public good. The innocent require 
 no subterfuges, neither does the State promote any of her interests by 
 such a sacrifice of her dignity. It should state with clearness and cer- 
 tainty the facts and circumstances according to the truth. But instead 
 of this, it is an artificial and complex instrument which in its practical 
 operation is often made the means of defeating justice upon a mere 
 quibble, or of artfully and adroitly concealing from the defendant the 
 nature of the charge against him. 
 
 For the purpose of illustration we will take the crime of murder : 
 
 The time and place, as well of the wound as of the death must be 
 specifically alleged. The indictment must set forth particularly the 
 manner of the death and the means by which it was effected. When 
 therefore the manner of death is doubtful, it is laid differently indiffer- 
 'ent counts, in order to meet the evidence and come as near the truth as 
 possible. It is usual to specify in which hand the instrument which 
 occasions the death is held, or whether it is held in both hands. The 
 value of the instrument is generally stated, or whether it is of no value. 
 Where the death is occasioned by a wound or bruise, or by external 
 violence, the stroke must be expressly laid. The particular part of the 
 body in which the deceased was struck or wounded, and the length and 
 depth of the wound must be alleged. If the wound be said to be on 
 the arm, hand or side, without saying either right or left; or if it be 
 only said to be about the breast, instead of on the breast ; this is bad 
 for uncertainty. So where any of the wounds are laid with uncer- 
 tainty the laying of others with sufficient certainty will not help the 
 indictment, if there be a general conclusion that the party died " of the 
 wounds above-mentioned." It is necessary that the death by the means 
 stated, should be positively alleged. This cannot be taken by impli- 
 cation. Therefore, where the killing is alleged to be by any stroke, 
 the indictment must proceed to aver that the prisoner thereby gave to 
 the deceased a mortal wound whereof he died. 
 
 The following form of an indictment for murder will give some idea 
 of this instrument in the United States:— 
 
 City and County of New York, ss. : 
 
 The jurors of the people of the State of New York, in and for the 
 
XL1 
 
 PREFACE TO THE AMERICAN EDITION. 
 
 body of the city and county of New York, upon their oath present, 
 that John Smith, late of the first ward of the city of New York, laborer, 
 not having the fear of God before his eyes, but being moved and se- 
 duced by the instigation of the devil, on the first day of May in the 
 year of our Lord one thousand eight hundred and fifty-three with force 
 and arms, at the ward, city and county aforesaid, in and upon one 
 Henry Brown in the peace of God, and of the said people, then and 
 there being, feloniously, wilfully and of his malice aforethought, did 
 make an assault ; and that the said John Smith then and there holding 
 in his right hand a certain knife of the value of half a dollar, did then 
 and there, feloniously, wilfully and of his malice aforethought strike 
 and thrust the said knife in and upon the left side of the neck of him 
 the said Henry Brown, giving to the said Henry Brown then and there, 
 with the knife aforesaid, in and upon the said left side of the neck of 
 him the said Henry Brown one mortal wound, one inch long and six 
 inches deep, of which said mortal wound the said Henry Brown, from 
 the first day of May in the year aforesaid until the fifteenth day of the 
 same month of August, in the year aforesaid, at the ward, city and 
 county aforesaid, did languish and languishing did live ; on which 
 said fifteeenth day of May, in the year aforesaid, the said Henry 
 Brown, at the ward, city and county aforesaid, died. 
 
 And so the jurors aforesaid, do say that the said John Smith him 
 the said Henry Brown, in manner and form aforesaid, feloniously, 
 wilfully and of his malice aforethought, did kill and murder, against 
 the peace of the people of the State of New York and their dignity. 
 
 The foregoing, is but one count. If there is a possibility of any 
 other mode of killing or means of death, appearing upon the trial a 
 number of counts must be inserted adapted to every possible difference 
 in the proof, so as to obviate the danger of a variance between the 
 evidence and the indictment. 
 
 So much for the verbiage and repetition of an indictment under our 
 present system. In England, the prolixity of this instrument is 
 happily abrogated. 
 
 The Statute 14 & 15 Vict. c. 100, provides that in an indictment for 
 murder or manslaughter "it shall not be necessary to set forth the 
 
PREFACE TO THE AMERICAN EDITION. xiii 
 
 manner in which, or the means by which the death of the deceased was 
 caused ; but it shall be sufficient in every indictment for murder to 
 charge that the defendant did feloniously, wilfully and of malice afore- 
 thought, kill and murder the deceased ; and it shall be sufficient in 
 every indictment for manslaughter to charge that the defendant did 
 feloniously kill and slay the deceased." 
 
 The form of the indictment given ante, under the English Statute 14 
 & 15 Vict, would be as follows : — 
 
 City and County of New York, ss : 
 
 The jurors of the ^people of the state of New York, in and for the body 
 of the city and county of New York, upon their oaths present, that 
 John Smith on the first day of May one thousand eight hundred and 
 fifty three, at the city of New York, feloniously, wilfully and of his 
 malice aforethought did kill and murder one Henry Brown, against the 
 peace of the people of the state of New York, and their dignity. 
 
 The common law rule which prevails in the United States, requiring 
 that where written instruments enter into the gist of the offence, as in 
 forgery, passing counterfeit money, selling lottery tickets, sending threat- 
 ening letters, &c. they shall be set out in words and figures, has been 
 a fruitful source of variance. In an early case in Massachusetts, (Com. 
 v. Houghton, 8 Mass. Rep. 107,) in which this doctrine was sustained — 
 a case which has constantly been cited and acted upon as authority 
 since — the court, from the manifest failure of justice to which its deci- 
 sion would lead, was provoked to remark that " it would be difficult, if 
 not impossible, to discover any good or satisfactory reason in support of 
 many of the niceties which are established in criminal proceedings, and 
 which may not be relaxed." 
 
 The objection to the great particularity required at common law, is, 
 that while it serves no useful purpose, it requires exactness of proof 
 upon matters of mere phraseology. It is said that a particular descrip- 
 tion of the instrument is necessary to enable the party charged, more 
 effectually to prepare for his defence, and J,o enable the court to see 
 whether the instrument violates the law. But a description of the in- 
 strument by the name or designation by which it is usually known, 
 
x fr PREFACE TO THE AMERICAN EDITION. 
 
 answers every practical purpose. If by preparation of the defence is 
 meant the taking advantage of the misspelling of a word, or the omis- 
 sion of a figure, then a technical recital of the instrument is indeed all 
 important to the defendant ; for the ignorance or carelessness of the 
 officer who draws the indictment will in that case often be of service 
 to him. If, however, the defendant proposes to meet the issue of inno- 
 cent or guilty fairly, such quibbles will neither inform nor aid him. 
 There is still less reason for minuteness of statement, on the ground 
 of giving information to the court. The name and nature of the instru- 
 ment, will enable the court to see at a glance whether it comes within 
 any of the prohibitions of the law ; and as the instrument itself must 
 always be produced, and its identity with that mentioned in the indict- 
 ment be fulh' established, everything material is known. 
 
 Some idea of the practical working of the common law system may 
 be derived from an enumeration of a few of the more recent cases 
 decided in the United States. 
 
 In Stephens v. The /State, Wright's Ohio Rep. 70, the indictment 
 charged the defendant with having two hundred counterfeit notes in 
 his possession, not filled up, with intention to fill them up, in imitation 
 of genuine notes of the Bank of the United States. The defendant was 
 convicted in the court of common pleas and sent to prison. But the 
 supreme court reversed the judgment, and ordered the prisoner to be 
 discharged from the penitentiary, because it appeared that the notes were 
 not set out in tfie indictment. 
 
 In Com. v.lYn'ght, 1 Cushing, 46, the defendant had been convicted 
 in the court of common picas upon an indictment for a libel. The 
 indictment professed to set out the libel according to its purport and 
 effect ; but really set it out verbatim, placing it within marks of quo- 
 tation ; and it was admitted that the words of publication were recited 
 correctly. The supreme court arrested the judgment because the 
 indictment did not employ the technical words "of the tenor following," 
 or some kindred expressions, importing an exact copy. The court, 
 feeling no doubt chagrined that justice should be so trifled with, 
 through arbitrary rules of pleading, remarked: "The strictness re- 
 quired in criminal pleading has been occasionally the subject of criti- 
 
PREFACE TO THE AMERICAN EDITION. XV 
 
 cism and complaint. "With this, the court has nothing to do. They 
 are bound to administer the law as they find it. If this strictness has a 
 tendency to impede, or to thwart the course of justice in criminal proceedings 
 it is the province of the legislature, and not of the court, to amend the law." 
 
 In Com. v. Tarbox, 1 Cushing's Eep. 66, the same objections were 
 made to the form of the indictment, as in the case of Com. v. Wright. 
 The defendant had been convicted for publishing an obscene libel. 
 The prosecuting attorney in place of inserting a copy of the libel, 
 attached the original printed libel' to the indictment. The supreme 
 court held that this was not a sufficient indication that the paper was 
 set out in words importing an exact transcript, and arrested the 
 judgment. 
 
 In England, all these difficulties are removed by stat. 14 & 15 Vict. 
 c. 100, which provides that in all cases " wherever it shall be necessary 
 to make any averment in any indictment as to any instrument whether 
 the same consists wholly, or in part, of writing, print, or figures, it 
 shall be sufficient to describe such instrument by any name or designation 
 by which the same may be usually known or by the purport thereof without 
 setting out any copy or fac simile of the whole or any part thereof." 
 
 Under the former English practice, it was necessary to allege the 
 time on which each material fact stated in the indictment took place 
 with great precision ; and such exactness did the law require in this 
 respect, that any uncertainty or incongruity, in the description of time 
 vitiated the indictment. As, if the indictment stated a fact to have 
 occurred on a day subsequent to the filing of the bill, or an impossible 
 day, or a day that never happened, it was bad. So if it laid the offence 
 to have been committed on divers days, between such a day and such a 
 day, it would be bad. 
 
 The technicality of the old system, was, in no sense, beneficial. It 
 helped to retard and embarrass the prosecution, and to evade the trial 
 on the merits. It was a part of the web of intricacies which had 
 hitherto enveloped this important branch of the law. 
 
 The 14 & 15 Vict., ch. 100, sec. 24, enacts, that no indictment for any 
 
xv | PREFACE TO THE AMERICAN EDITION. 
 
 offence, shall be holden insufficient " for omitting to state the time at 
 which the offence was committed, in any case where time is not of the 
 essence of the offence — nor for stating the time imperfectly — nor for 
 stating the offence to have been committed on a day subsequent to the 
 finding of the indictment — or on an impossible day — or on a day that 
 never happened." * 
 
 In the United States, the utmost precision in stating time, in the in- 
 dictment, is still required. Some idea of the existing practice, may be 
 derived from the following decisions taken at random from the reports 
 of the different states : 
 
 Every material fact to constitute the crime, must be laid in the 
 indictment with time. State v. Bacon, 7 Verm. Eep. 219 ; State v. Beck- 
 with, 1 Stewart, 318 ; U. S. v. Bowman, 2 Wash. C. C. Eep. 328. If the 
 date be laid in blank, so that it does not appear if the offence was 
 barred by limitation or not, the judgment will be arrested. State v. 
 Beclcwiih, 1 Stewart, 318 ; State v. Roach, 2 Haywood, 552 ; Tom v. 
 State, 3 Missouri, 45. 
 
 In Indiana, an indictment not containing the year, but referring to 
 the caption which did contain the year, in this manner, " in the year of 
 our Lord aforesaid," was held to be bad, as the caption was no part of 
 the indictment. State v. Hopkins, 7 Blackf. 494. To aver that the de- 
 fendant " on divers days" committed the offence, is bad, State v. Brown, 
 2 Murphy, 224 ; State v. Walker, lb. 229 ; State v. Hendricks, Cameron 
 & Norwood Eep. 369. And it has ever been held, that the omission of 
 the phrase, " the year of the Lord" is fatal. Whitesides v. The People, 
 1 Breese's Eep. 41. 
 
 If the fact be stated as to the time with uncertainty or repugnancy, 
 the indictment will be bad. Jane v. State, 8 Missouri Eep. 45. If two 
 times have been previously mentioned, in the indictment and afterwards 
 a part only is laid " then and there," the indictment is defective, because 
 it is uncertain to which it refers. Storrs v. Slate, 3 Missouri Eep. 45. 
 An indictment alleging the offence to have been committed on a future 
 
 *The like defects were cured after verdict by St. 1 Geo. 4, c. 64, s. 21. 
 
PREFACE TO THE AMERICAN EDITION. xvii 
 
 or impossible day, is defective. Markleyv. State, 10 Missouri, 291. An 
 allegation that the offence therein charged was committed on a certain 
 specified " clay of September now passed," is not stated with sufficient 
 certainty. Com. v. Griffin, 3 Cush. Eep. 523. An indictment charging 
 the offence to have been committed in Nov. 1801, and in the twenty- 
 fifth year of American Independence, was held defective, and the 
 judgment arrested, because the offence was charged to have been com- 
 mitted in two different years. State v. Hendricks, N. C. Conf. Eep. 349. 
 In Serpentine v. State, 1 How. Miss. Rep.' 260, where the crime was 
 alleged to have been committed in the year of our Lord 1030, and it 
 did not appear whether the mistake occurred in the indictment, or was 
 made by the transcribing clerk, the court held that the allegation was 
 bad as "presupposing the life of the accused to have endured for upwards of 
 eight hundred years /" 
 
 It is needless to multiply cases. More, than thirty years ago, Judge 
 Gibson of Pennsylvania, (in Jacobs v. Com. 5 Serg. & Eawle Rep. 315,) 
 remarked, that, " although certainty of time be material in a legal point 
 of view, it cannot be pretended that it is of much practical consequence 
 to the prisoner, either in giving notice of the specific charge alleged 
 against him, or in aiding him to defend himself against it : for the 
 prosecutor may give evidence of an offence committed on any other 
 day previous to the finding of the indictment ; and on the plea of autre 
 fois acquit, the defendant is usually under the necessity of proving the 
 identity of the offence charged in each indictment by evidence dehors 
 the record. I am therefore disposed to get over an objection of this sort, 
 whenever I can J" 
 
 The concluding words of the indictment are certain stereotyped ex- 
 pressions, the omission of which is fatal. 
 
 It was formerly usual to introduce mere moral inferences as, " to 
 the great displeasure of Almighty God," "to the evil example of all 
 others," &c. 
 
 The words " with force and arms" were at one time used in all in- 
 dictments for offences with force, and indeed for all felonies ; for a fel- 
 ony was deemed to include a trespass. The practice still exist in many 
 
XY iii preface to the American edition. 
 
 of the United States of introducing in indictments for forcible' injuries 
 the technical words "vi ei amis." They are clearly superfluous. 
 
 The constitutions of nearly all the states contain a provision that 
 indictments shall conclude against the peace and dignity of the state ; 
 and many questions have been started, and gravely discussed in the 
 courts, as to whether certain forms of statement are sufficient. Mr. 
 Barbour, (Cr. Law pp. 335, 336,) says : — " The words ' against the peace 
 of the people,' seem to be essential in all cases, excepting in indictments 
 for nonfeasance, and even in these, they are uniformly used ' against 
 the peace,' without saying ' of the people,' would be insufficient." In 
 Yirginia, the omission of the conclusion "against the peace," &c. is 
 fatal. Com. v. Carnby, 4 Grattan, 546. The proper conclusion of an 
 indictment in Pennsylvania, is " against the peace and dignity of the 
 commonwealth of Pennsylvania." Corn. v. Rogers, 5. Serg. & Eawle 
 Rep. 463. In New Hampshire, an indictment concluding ''against the 
 peace and dignity of our said state" is sufficient. Slate v. Kean, 10 
 New Hamp. Rep. 347. In South Carolina, an indictment stating an 
 offence against the state, and concluding with the words " against the 
 peace and dignity of the same," is good within the terms of the consti- 
 tution of 1790. State v. Washington, 1 Bay, 120. Where an indict- 
 ment commenced " South Carolina," and not the " State of South Car- 
 olina" and concluded " against the peace and dignity of the said state," 
 and not " against the peace and dignity of the same," the termination 
 was held good. State v. Anthony, 1 M'Cord, 285. And an indict- 
 ment was held good though it concluded " against the peace and 
 dignity of this state," instead of concluding "against the peace and 
 dignity of the same state." State v. Yancey, 1 Const. Rep. 237. An 
 indictment in Kentucky commencing with the name of the com- 
 monwealth of Kentucky, and professing to proceed by the authority 
 of the commonwealth of Kentucky, and concluding " against the peace 
 and dignity of the commonwealth," without adding "of Kentucky," is 
 good. Com. v. Young, 7 B. Mon. Rep. 1. In Mississippi, an indictment 
 commencing with the words "the state of Mississippi," and concluding 
 " against the peace and dignity of the same," is sufficient. State v. 
 Johnson, 1 Walker, 392. 
 
 The books are full of cases like the foregoing, in which purely tech- 
 nical averments, in the concluding words of the indictment, are elabo- 
 
PREFACE TO THE AMERICAN EDITION. xix 
 
 rately discussed. It is painful to think that the time of our courts 
 must be thus consumed, and prosecutions be embarrassed in the web 
 of technical and unmeaning forms, no way essential to the ends of 
 justice or the security of the accused, in a fair and impartial trial upon 
 the merits. 
 
 In England the stat. 14 & 15 Vict. c. 100, provides, that "no indict- 
 ment shall be held insufficient, for want of a proper or formal 
 conclusion." 
 
 At, common law, as the indictment is the rinding of a jury upon 
 oath, it cannot be amended without the concurrence of the grand 
 inquest by whom it is presented. In the United States, there seems, 
 as yet, an entire absence of statutory provision on this subject; so that 
 the common law rule still governs here. 
 
 I have already alluded to the particularity required in setting out 
 written instruments. Variance between the setting out of written 
 instruments, and the proof at the trial, where so much exactness is 
 required, is of very common occurrence. A few cases will illustrate 
 the rigor of the rule, and its evil consequences. 
 
 A draft signed Jos. Johnson, is not admissible under a count stating 
 it to be signed Joseph Johnson, president. U. S. v. Keen, 1 McLean, 
 Eep. 429. 
 
 Where an indictment alleged that a forged certificate was signed by 
 Bowling Starke, but the instrument was signed B. Starke, and the 
 signer's true name was Boiling Starke, the variance was held fatal. 
 Com. v. Hearns, 1 Virg. Cas. 109. 
 
 The defendant was indicted for counterfeiting a bill of a bank incor- 
 porated by the name of " The President and Directors of the Bank of 
 South Carolina." The bill produced was " The Bank of South Caro- 
 lina." A new trial was granted on the ground that the evidence did 
 not support the indictment. State y. Waters, 2 Const. Bep. 669. 
 
 In an indictment for forgery, the instrument alleged to be forged, 
 was set forth as an acquittance or discharge for the sum of forty-eight 
 
XX PREFACE TO THE AMERICAN EDITION. 
 
 dollars. The paper forged was, on its face, an order for the sum of 
 forty-eight dollars ; but on its back was an order for the further sum of 
 one dollar. It was held that there was a variance between the alle- 
 gation and the proof. State v. Handy, 20 Maine Rep. 81. 
 
 An indictment which charges a larceny or embezzlement of the 
 printed sheets of a certain publication, is not supported by evidence 
 that those sheets were delivered to the defendant by the owner to be 
 bound, and that the defendant after he had folded, stitched, bound and 
 trimmed them, embezzled and fraudulently converted them to his own 
 use. In such case, the indictment should charge a larceny or em- 
 bezzlement of books. Com. v. Merrifield, 4 Mete. 468. 
 
 If the court, in either of the foregoing cases, had possessed the power 
 of amending the record, how simple and easy would it have been for 
 it to rectify the error in the indictment, if error it could be called, and 
 thus preserve the trial, instead of abruptly terminating it. The ob- 
 jections raised were not to the merits. And although the proceedings 
 were quashed, and the defendant discharged from custody, it cannot 
 be pretended that any of his substantial rights would have been in- 
 fringed, had justice not been thus baffled. 
 
 Similar abuses are guarded against in England, by statutes which 
 provide that " the court may cause the record on which any trial may 
 be pending before any such court, in any indictment or information 
 for any misdemeanor, (or for any offence whatever,) when any vari- 
 ance shall appear between any matter in writing or in print produced 
 in evidence and the recital or setting forth thereof upon the record 
 whereon the trial is pending, to be forthwith amended in such particu- 
 lar, by some officer of the court, on payment of such costs (if any) to 
 the other party as such court shall think reasonable ; and thereupon 
 the trial shall proceed, as if no such variance had appeared." 9 Geo. 
 4, c. 15 ; 11 & 12 Vict. c. 45, s. 4 ; 12 & 13 Yict. c. 45, s. 10. 
 
 By stat. 14 & 15 Yict. c. 100, s. 1, whenever on the trial of any in- 
 dictment for any felony or misdemeanor, there shall appear to be any 
 Variance between the statement in such indictment and the evidence 
 offered in proof thereof, — in the name of any county, riding, division, 
 
PREFACE TO THE AMERICAN EDITION. xxi 
 
 city, borough, town corporate, parish, township, or place mentioned or 
 described in any such indictment, the court may amend the indict- 
 ment. 
 
 The cases where local description is necessary, as above mentioned, 
 are such as indictments for burglary, arson, house-breaking, stealing in 
 a dwelling house, and the like, where the indictment must state the 
 town, and county by way of local description ; or indictment for not 
 repairing highways which must state the highway to be within the 
 town, &c ; and in these cases, the matter of local description must be 
 proved as laid. As to a variance between the statement and proof, in 
 this respect, the indictment in England may now be amended by St. 
 14 & 15 Vict. c. 100, s. 1. In the United States, the old rule still pre- 
 vails in all its rigor, that where a place is stated as matter of local de- 
 scription, the slightest variance between the description of it in the in- 
 dictment and the evidence will be fatal. Thus, in New York, where 
 in an indictment for arson, the tenement was averred to be in the sixth 
 ward, whereas, it was in the fifth, the indictment was held bad. Peo- 
 ple v. Slater, 5 Hill's Eep. 401. And the same particularity is required 
 in cases of stealing in a dwelling house, of burglary, and of forcible 
 entry and detainer and the like, where the situation of the premises is 
 specially laid, in which csise the description must be strictly proved. 
 
 The St. 14 & 15 c. 100, s, 1, provides, that when on the trial of any in- 
 dictment there appears to be any variance "in the name or description 
 of any person or persons or body politic or corporate therein stated or 
 alleged to be the owner or owners of any property, real or personal, 
 which shall form the subject of any offence charged therein, — or in the 
 name or description of any person or persons, body politic or corporate, 
 therein stated or alleged to be injured or damaged or intended to be 
 injured or damaged by the commission of such offence^ — or in the chris- 
 tian name or surname, or both christian name and surname, or other 
 description whatsoever, of any person or persons whomsoever therein 
 named or described, — or in the name or description of any matter or 
 thing whatsoever therein named or described, — or in the ownership of 
 any property named or described therein, — it shall and may be lawful 
 for the court, before which the trial shall be had, if it shall consider 
 such variance not material to the merits of the case, and that the de- 
 
xx ii PREFACE TO THE AMERICAN EDITION. 
 
 fendant cannot be prejudiced thereby in his defence on such merits, to 
 order such indictment to be amended, according to the proof, by some 
 officer of the court or other person, both in that part of the indictment 
 where such variance occurs, and in every other part of the indictment 
 which it may become necessary to amend, on such terms as to post- 
 poning the trial to be had before the same or another jury, as such 
 court shall think reasonable ; and after any such amendment, the trial 
 shall proceed, whenever the same shall, be proceeded with, in the same 
 manner in all respects, and with the same consequences, both with re- 
 spect to the liability of witnesses to be indicted for perjury and other- 
 wise, as if no such variance had occurred." 
 
 The utility of the foregoing statute may be gathered from a brief 
 allusion to the particularity required in setting out the names of parties, 
 and the consequent danger of variance. 
 
 The indictment must be certain as to the name of the person in- 
 dicted. It seems formerly to have been supposed that an error in the 
 surname was not pleadable in abatement. But it ia. now the settled 
 law, that a mistake in the latter, is equally fatal with one in the for- 
 mer. In Massachusetts it was held a misnomer when T. H. P. was in- 
 dicted by the name of T. P. Com. v. Perkins, 1 Pick. Eep. 388. In 
 New York, it was said that if a man be known by the addition of 
 "junior," to his name, an indictment against him without that addition 
 is not conclusive that he was the person indicted. 2 Caines, 165. 
 
 A variance or an omission in the name of the person aggrieved, is much 
 more serious than a mistake in the name or addition of the defendant : 
 the latter can only be taken advantage of by plea in abatement; 
 while the former will be ground for arresting the judgment, when the 
 error appears on the record, or for acquittal, when a variance arises on 
 the trial. Where it appears that the party injured is misnamed, or that 
 the owner of the goods, or house, &c, is not the person named as such 
 in the indictment, the variance is fatal. Thus, if a burglary be alleged 
 to have been committed in the dwelling-house of A. B., and the fact is 
 that it is the dwelling-house of 0. D., the defendant must be acquitted 
 for the variance. So, if a larceny be alleged to have been committed 
 in the house of A. B., and it turn out in evidence, to be the dwelling- 
 house of 0. D., the defendant must be acquitted of the stealing in the 
 
PREFACE TO THE AMERICAN EDITION. xxiii 
 
 dwelling-house. So in all other cases, a material variance between the 
 indictment and evidence in the name of the party injured will be fatal, 
 and the defendant must be acquitted. This is the existing practice in 
 the United States, and it only needs comparison with the recent English 
 statutes of amendment, to show the superior advantages of the latter. 
 
 Again, in the United States, if the indictment describe the defendant 
 as a person to the jurors unknown, and if it afterwards turn out that 
 at the time of finding the bill, his name was known, this will be a fatal 
 variance, and the defendant will be acquitted. See 3 Camp. 264; 2 
 Leach, 925 ; Barb. Cr. Law, pp. 288, 397. In England, by the 14 & 
 15 Vict. c. 100, s. 1, the court may order the indictment to be amended 
 according to the fact. 
 
 In Massachusetts, in Com. v. Simpson, 9 Mete. Eep. 138, it was held 
 that evidence of embezzlement would not support an indictment for 
 larceny, although the Rev. St. of Mass. ch. 126, declares that a party 
 who embezzles money or goods, shall be deemed, by so doing, to have 
 committed the crime of larceny. At the trial in the municipal court 
 the defendant contended that there was a variance between the indict- 
 ment and proof; that larceny was charged, and the proof tended 
 to establish embezzlement which was a distinct crime. The court ruled 
 that the statute had so made embezzlement larceny,' that it was com- 
 petent and sufficient to prove embezzlement under an indictment for 
 larceny, which did not set forth the fiduciary relation of the defendant 
 to the property. But Judge Dewey, in pronouncing the opinion of 
 the supreme court, held that " the two offences of larceny and embez- 
 zlement, were so far distinct in their character that, notwithstanding 
 the statute, under an indictment charging merely larceny, evidence of 
 embezzlement was not sufficient to authorize a conviction." 
 
 The English Statute 14 & 15 Vict. c. 100, enacts that variances be- 
 tween the indictment and proof where the proof is of a kindred though 
 different offence to that charged, shall not be regarded, but the defend- 
 ant shall be convicted of the offence proved. Therefore, upon an in- 
 dictment for larceny, if upon the evidence, it appear to be embezzle- 
 ment, the jury may acquit of the larceny, and find the party guilty of 
 the embezzlement. Or, upon an indictment for embezzlement, if the 
 
xxiv PREFACE TO THE AMERICAN EDITION. 
 
 offence, upon the evidence, appear to be larceny, the jury may acquit 
 the prisoner of the embezzlement and find him guilty of simple larceny 
 — or of larceny as clerk or servant. And so of obtaining money or 
 goods by false pretences, the defendant may be convicted either of the 
 false pretences, or of larceny. 
 
 At common law the conviction of some one who has committed the 
 crime, must precede that of one guilty only as accessory ; and if the ac- 
 cessory plead to the indictment and suffer trial without demanding the 
 previous trial and conviction of the principal, it is not a waiver of this 
 right. No assent can be implied from his submission to the course 
 directed by the prosecuting attorney, or the court. 
 
 In North Carolina, it has been held that the accessory is not liable 
 to be tried while the principal is amenable to the laws of the state and 
 is still unconvicted. State v. Graff, 1 Murphey's Rep. 270 ; see Sfate v. 
 Goode, 1 Hawks, 463. 
 
 In Massachusetts, in an early case, {Com. v. Andrews, 3 Mass. Rep. 
 126,) it was held that an indictment against one for feloniously receiv- 
 ing stolen goods could not be maintained, unless there was evidence 
 that the principal had been convicted. And judgment was arrested 
 accordingly, notwithstanding the accessory had been convicted, it not 
 appearing that the principal had ever been tried. In the same state, 
 Judge Phillips was indicted in the Supreme Judicial Court in the county 
 of Middlesex, as an accessory to a burglary, in which one Thomas Daniels 
 was alleged to have been the principal felon. The death of Daniels (who 
 had committed suicide in the prison after his commitment for trial) was 
 alleged in the indictment ; and the question was whether the prisoner 
 Phillips could lawfully be put upon his trial. The court were unani- 
 mously of opinion, that, by the common law an accessory cannot be 
 put on his trial, but by his own consent,. until the conviction of the 
 principal. " Our only doubt," says the Chief Justice, "arose from the 
 peculiar circumstances in this case, that the person charged as princi- 
 pal is dead. If he were alive and on trial, it is possible he might 
 establish his innocence, strong as the evidence has appeared in support 
 
PREFACE TO THE AMERICAN EDITION. XXV 
 
 of his guilt. In such case the prisoner could not be found guilty."— 
 16 M. E. 425.* 
 
 In the state of New York, the common law doctrine still prevails. 
 Mr. Barbour in his excellent treatise for the guidance of criminal ma- 
 gistrates, states it as law, (p. 291, 2d ed.) that if the principal die before 
 conviction, the accessory never can be convicted. And again (p. 292) he 
 says: " if it appear, beyond all doubt, that the principal is dead, without 
 having been convicted, the accessory should perhaps (?) be discharged." 
 
 The extent to which the New York statute goes, is to permit the 
 accessory to be indicted, tried, convicted, and punished, notwithstand- 
 ing the principal felon may have been pardoned, or otherwise dis- 
 charged, after conviction, (2 E. S. 4th ed. pt. 4, ch. 2, sec. 49.)f And 
 further, in an indictment against a person for receiving or buying sto- 
 len goods, it is not necessary to aver, nor on the trial to prove, that the 
 principal who stole the goods has been convicted. (lb. tit. 3, art. 
 5, sees. 71, 72.) 
 
 The reasoning of the common law, on this subject, may be stated in 
 brief as follows : — 
 
 As the fact, as well as the degree, of guilt which is incurred by coun- 
 selling or commanding the commission of the crime, depends upon the 
 actual perpetration of that crime, the guilt of the principal must be 
 established before the accessory can be assailed. This can only be done 
 in a prosecution against the principal ; for the law supposes a man more 
 capable of defending his own conduct than any other person, and will 
 not tolerate that the guilt of A. shall be established in a prosecution 
 against B. Consequently, if the guilt of B. depends upon the guilt of 
 A., A. must be convicted before B. can be tried. 
 
 *But by a statute of Massachusetts passed Feb. 19, 1831, accessories before, and accesso- 
 ries after the fact, in cases of felony, may be indicted and convicted, though the principal 
 felon may not have previously been convicted, is not amenable to justice. 
 
 f Where reference is made in this work, to the New York Revised Statutes, the 4th 
 edition of the Statutes "Banks, Gould & Co. 1852 " is meant. It will be found a most 
 accurate and convenient compilation, omitting all the repealed acts, and giving, with great 
 faithfulness, the New Tork law in force down to, and including the year 1852. 
 
 D 
 
xxvi PREFACE TO THE AMERICAN EDITION. 
 
 It is evident that the above doctrine, though plausible, is specious 
 and sophistical. It is based upon the supposition that " the accessory 
 follows the nature of his principal." In other words, that the former is 
 subordinate to the latter. In treason and misdemeanors, all are prin- 
 cipals, why not in felonies in general ? The law of New York makes 
 the punishment of principals in the first and second degree and acces- 
 sories before the- fact in any felony, the same ; thus placing them all 
 practically upon the same footing. Yet it keeps up the common law 
 distinctions, and the common law inconsistency. If the law in inflict- 
 ing the same punishment upon both, does not recognize any difference 
 in their guilt, why is- not one as much a principal as the other ? The 
 man who is prompted by another to commit. crime, is often the dupe and 
 victim of evil counsel- — the mere tool of him- who- plots, instigates, and 
 in realty executes. There is not therefore necessarily, or even gener- 
 ally, the subordination on the part of the accessory which the common 
 law contemplates. 
 
 But does the fact, or the degree of guilt, which is incurred by coun- 
 selling or commanding the commission of crime, depend upon the ac- 
 tual commission of that crime ? The law makes a distinction, but cer- 
 tainly the moral turpitude is equally great, whether the advice be fol- 
 lowed, or not. If B. uses all his influence to incite A. to murder 0. is 
 B. the less culpable because the virtue or the timidity of A. prevents 
 him from committing the crime ? There is murder in B.'s heart, and 
 he endeavors to infuse the poison of it into- the breast of A. That the 
 ill consequences to society are not so great as those B.. has plotted is 
 due, not to B. but to the .resistance which A. interposes to B.'s wicked 
 counsels. It may be said that unless the crime is actually committed, 
 there is nothing for the law to take cognizance of. But this is not so. 
 A mere solicitation to commit a felony is an indictable offence, whether 
 it be committed or not.. Thus to solicit a servant to steal his master's 
 goods, though it be not charged in the indictment that the servant stole 
 the goods, nor that any other act was done, except the soliciting and 
 inciting. 2. East E. 5. In Connecticut the mere solicitation of another 
 to commit adultery has been held to be a high crime cognizable by 
 the superior court. 7 Conn. Eep. 267. In New York, on the trial of 
 an indictment for an attempt to commit arson, it was shown that the 
 prisoner solicited one K. to set fire to a barn, and gave him materials 
 
PREFACE TO THE AMERICAN EDITION. Xxvii 
 
 for that purpose ; he was convicted, although it appeared he did not 
 mean to be present at the commission of the offence, and K. never in- 
 tended to commit it. 4 Hill, 133. In Yermont the soliciting a witness, 
 not to attend a public prosecution, whether successful, or not, has been 
 held to be an indictable offence. 8 Term. Eep. 57. In England, an 
 attempt to suborn a person to commit perjury, upon a reference to the 
 judges, was unanimously holden by them to be indictable. And it is 
 laid down generally, that if a party offers a bribe to a judge, meaning 
 to corrupt him in the cause depending before him, although the judge 
 does not take it, yet this is an offence punishable by law in the party 
 that offers it. 3 Inst. 147. Whatever, therefore, may be the relative 
 culpability of the accused, the accessory has committed a substantive 
 wrong, and there is no good reason why his trial and eonvietion should 
 depend upon that of the principal. If B. is guilty, the well being of 
 society demands that he should be punished, — with A. if A. is charged 
 with the offence and is amenable to justice, or without him if A. can- 
 not be found, or if B. is alone the transgressor. 
 
 That the common law doctrine is highly dangerous in practice, the 
 history of criminal trials in England and the United States, too well 
 attests. The chief mischief consists in the delay of justice, and the 
 chanees with are thus afforded the accessory of avoiding the trial alto- 
 gether. The principal may die or escape ; or the testimony may be 
 lost by the death or absence of the witnesses. And what is also much 
 to be deplored, society loses the moral effect of criminals being brought 
 to speedy justice. 
 
 It may then well be asked, why should not these distinctions be done 
 away with ? And why should not the systems of criminal law contain 
 a general provision for prosecuting and punishing all who aid, abet, 
 procure, or participate in the commission of an offence, in the same 
 manner, as those who actually perpetrate it, and without reference to 
 the trial or conviction of the latter, or to their being found or not ? 
 This has been recently done in England. The stat. 11 & 12 Vict. c. 
 46, s. 1, after reciting that it was expedient that an accessory before 
 the fact to felony should be liable to be indicted, tried, convicted and 
 punished, in all respects like the principal, as was then the case in 
 treason and in all misdemeanors, — it is enacted, that "if any person 
 
Xxviii PREFACE TO THE AMERICAN EDITION. 
 
 shall become an accessory before the fact to any felony, whether the 
 same be a felony at common law or by virtue of any statute or statutes 
 made or to be made, such person may be indicted, tried, convicted, and 
 punished in all respects as if he were a principal felon." 
 
 In all cases of felony, therefore, the accessory in England is punish- 
 able in the same manner precisely as the principal felon ; and he may 
 now be indicted either as a principal, that is, he may be charged in the 
 indictment with having actually committed the offence as principal in 
 the first degree, or he may be indicted as accessory as for a substantive 
 felony, or he may be indicted as accessory with the principal, at the 
 option of the prosecutor. 
 
 The English statute further enacts that "if any person shall become 
 an accessory after the fact to any felony, whether the same be a felony 
 at common law or by statute, he may be indicted and convicted either 
 as an accessory after the fact to the principal felony together with the 
 principal felon, or after the conviction of the principal felon, — or may 
 be indicted and convicted of a substantive felony, whether the principal 
 felon shall or shall not have been previously convicted, or shall or shall 
 not be amenable to justice, and may thereupon be punished in like 
 manner as any accessory after the fact to the same felony, if convicted 
 as an accessory, may be punished ; and the offence of such person, 
 howsoever indicted, may be inquired of, tried, determined, and pun- 
 ished, by any court which shall have jurisdiction to try the principal 
 felon, in the same manner as if the act by reason of which such person 
 shall have become an accessory had been committed at the same place 
 as the principal felony." 
 
 The following work is a comprehensive summary of the law and 
 practice in criminal cases. In furnishing the profession with a com- 
 plete criminal practice, it has left -nothing more in this department to be 
 desired. Books of evidence, and of pleading, already abounded. The 
 learning of the common law, and of the reports, had been exhausted 
 in treating of the various crimes. We were posssessed of the admirable 
 work of Mr. Chitty which is rich in useful practical details. But still, 
 
PREFACE TO THE AMERICAN EDITION. xxix 
 
 an author was needed who at the same time that he was profound, 
 should also be elementary— who besides recondite learning, would give 
 information upon all those numerous minor points of criminal proceed- 
 ing, which though simple, and presumed to be a part of the knowledge 
 of every tyro of the profession, cannot be known intuitively, and should 
 therefore be contained in some book easily accessible to the student. 
 The recent issue of Mr. Archbold has supplied this very want : and I 
 repeat that it has left nothing more in this branch of the law to be 
 desired. 
 
 Mr. Archbold's first work on criminal law,' was published in 1813 — 
 just forty years ago. His writings have therefore been before the public 
 for nearly half a century — ample proof in itself were other evidence 
 wanting, of the high favor with which they have been reoeived. They 
 have been preserved, and have risen in public regard, while a thousand 
 and one ephemeral productions have been swept into oblivion. In- 
 deed, after beiug exposed to the ordeal of professional criticism for a 
 period of two score years, they are at this day more highly esteemed 
 than they ever were before. 
 
 This edition of Archbold is much more comprehensive than any of 
 its predecessors. The former editions were confined to pleading and 
 evidence. The present, in addition to what was contained in any of 
 the others, treats very fully of the different crimes, and of every branch 
 of criminal practice. The first part treats successively of the accusa- 
 tion and complaint, process, arrest, examination, commitment, bail, 
 indictment, trial, conviction, judgment, appeal, and execution. The 
 second part is devoted to the discussion of the several crimes, the in- 
 dictment for each offence, and the requisite evidence. This is the na- 
 tural order. Every step in the progress of a public prosecution, is 
 thus traced, from the commencement to its conclusion. And so faith- 
 fully has the author performed his task that the most minute circum- 
 stance has not been omitted. 
 
 Next to their accuracy, the great merit of Mr. Archbold's writings 
 consists in the simplicity of their arrangement, and their genera] adapta- 
 tion to the practical purposes for which they are chiefly designed. His 
 
XXX. PREFACE TO THE AMERICAN EDITION. 
 
 points are stated with great clearness, and they are well supported by 
 authorities. His illustrations are pertinent and happy. His style is 
 concise and lucid, and his language pointed and forcible. He is brief 
 without being obscure, and learned without being prolix. The incor- 
 poration of forms into the text as they are from time to time required, 
 by the subject under discussion, renders his explanations much more 
 intelligible to the student than they could be were the forms placed by 
 themselves in an appendix, and it is a source of great convenience to 
 the practitioner. 
 
 The present work made its appearance in England much sooner than 
 would have been the case, except for recent changes in the criminal 
 practice of that country.; and I should also add, that for the early pub- 
 lication of this American edition, the profession is indebted to the 
 zealous circumspection of the enterprising American publishers. The 
 re-print of English works, in every department of knowledge, has be- 
 come with us, a species of necessity. The demand in our market for 
 the books of England, is scarcely less than for her fabrics. And cer- 
 tainly, a knowledge of her discoveries in the sciences, and in the arts 
 of life, is quite as valuable, as anything she can contribute to our ma- 
 terial comfort. Oar commercial relations with her, have become so in- 
 timate and extensive, as to render everything connected with her ad- 
 ministration of justice of great practical importance to us. And when 
 to this is added the consideration, that not only the leading and funda- 
 mental principles of our law, have been taken from English sources,, 
 but that very many of our statutes are literal transcripts of English 
 enactments, the utility of works like the present, which keep the profes- 
 sion informed of the progress and condition of English jurisprudence, 
 becomes strikingly manifest. 
 
 This American edition comprises the original work first prepared 
 by Mr. Archbold in 1813 and brought down to the present time by 
 Messrs. Jervis and Welsby ; and also the "New System of Criminal 
 Proceduee, Pleading and Evidence in Indictable Cases," recently 
 edited by the venerable and distinguished author himself. Although 
 both works treat of the same subjects in substantially the same manner, 
 yet they naturally vary somewhat. Each, in its turn, has been care- 
 fully examined ; and where either could throw additional light upon 
 
PREFACE TO THE AMERICAN EDITION. xxxi 
 
 the subject matter, it has been freely used. The late work of the au- 
 thor has however been the basis of the present Treatise, and preference 
 has been given to it throughout ; as well because it seemed due to him 
 as author, and to his eminent talents and learning as a jurist, as because 
 after a most critical examination of the respective merits of both works, 
 the recent issue of Mr. Archbold was thought to be superior to the 
 other. 
 
 In the classification and arrangement of the subjects, it seemed desir- 
 able to divide the work into a number of additional chapters, in order 
 to furnish a more correct and complete analysis, and also to facilitate 
 reference. At the head of each chapter is also given a synopsis of its 
 contents, so that every chapter has its own index. 
 
 Great pains have been taken with the notes. I have endeavored to 
 make them a most full and thorough exposition of the author, and an 
 accurate and faithful reflex of the criminal law of the United States. 
 The decisions of the courts of thirty-one states, each with a separate 
 and distinct judicial organization, present very ample opportunity 
 for useful comment and illustration ; and I have striven not to omit a 
 single reported case which seemed at all material. The law and prac- 
 tice of the most remote and opposite sections of our common country, 
 have thus been brought together— at once embodying much curious 
 information and greatly enhancing the practical value of the work. 
 The notes, when long, have been divided into divisions and subdivisions, 
 and they have also been supplied with a very full index. A number 
 of offences not treated by the author, have been discussed in the notes ;* 
 and it is believed that the text and notes now cover the entire field of 
 criminal law. 
 
 Thomas W. "Waterman. 
 
 New YorJc, No. 77 Nassau Street,. June S0th t 1853. 
 
 * Among the heads independently treated in the notes, may be enumerated the following: 
 Violation of the Neutrality Laws ; Forcible Entry and Detainer ; Official Miscon- 
 duct and Extortion; Fraudulent Insolvency; Illegal Voting; Gambling; Lotteries; 
 Bribery; Embracery; Bastardy; Barratry; Champerty; Maintenance; Usury; 
 Compounding Felony; Adultery; Fornication; Seduction; Incest; Masquerade; 
 Hawkers and Pedlars; Vagrants; Td?pling Houses; Sabbath Breaking; Extra- 
 dition ; Negroes ; Breach of Prison ; Escape. 
 
 The subject of New Trials in Criminal Cases which is only spoken of, in general terms in 
 the text, will be found discussed in the notes with great fulness of detail. 
 
PREFACE 
 
 TO THE ENGLISH EDITION, 
 
 To Lord Campbell the country are indebted for one of the greatest 
 and best reforms in our Criminal Law, which has ever been made ; and 
 which is not only calculated to afford great and extraordinary facilities 
 in the administration of criminal justice, but must, in its consequences, 
 have a serious and most beneficial effect upon the state of crime in the 
 country. Whoever is conversant with our old reports and our ancient 
 text books on the Pleas of the Crown, must often have felt that both 
 the Bench and the Bar were exercising all their ingenuity in devising 
 little points and subtle distinctions, to enable the accused party to es- 
 cape conviction. And it was so. But it was done from the purest, the 
 most praiseworthy of motives : by the Bar, from a sense of duty to 
 their clients ; by the bench, from a feeling of humanity towards , the 
 accused. At a time when our criminal code was the most sanguinary 
 of any in Europe, when every felony was punished with death, no 
 wonder that the judges, in favorem vitce, listened favorably to objec- 
 tions and nice distinctions, which, if now introduced for the first time, 
 would not be entertained for a moment. And even when our criminal 
 code by degrees was ameliorated, softened down, the practice, for- 
 tified by the authority of former decisions, decisions often by the whole 
 of the judges or a great majority of them, continued and even increased, 
 until a mass of little points was accumulated, which operated as a 
 great and serious obstruction to the course of justice. However pure 
 and praiseworthy the motives from which this state of our criminal 
 code originated, it was attended with most mischievous consequences. 
 Juries looked astonished at finding a prisoner acquitted whom they 
 considered to be clearly guilty, merely on account of some technical sub- 
 tlety, which to their unlearned judgments must, no doubt, have ap- 
 peared an absurdity. Prosecutors were discouraged from seeking to 
 punish offenders, imagining that after expending their time and money 
 in the endeavor, they would have the mortification of seeing the party 
 acquitted from some cause entirely irrespective of the merits And the 
 offender himself, the hardened offender, acquitted on account of some 
 " flaw in the indictment," as it was technically termed, exulted in his 
 success, laughed at his judges, his jury, his prosecutor, and quitted the 
 
 E 
 
XXXiv PREFACE TO THE ENGLISH EDITION. 
 
 dock more determined than ever to continue his trade of crime ; specu- 
 lating on this state of the law for impunity, he grew more audacious 
 in his exploits, until at last, after a course of crime for years, he was 
 perhaps convicted, and punished. 
 
 This was not a healthy or sound state of our criminal law ; and the 
 only wonder is, that the state of crime in the country was not very 
 much worse than it is. The judges of themselves could effect nothing 
 to remedy the evil ; they could not emancipate themselves from the 
 authorities by which they were fettered, and which originated and per- 
 petuated the mass of little subtleties by which the administration of 
 the criminal law was impeded. Nothing but an act of parliament could 
 effect it. And this Lord Campbell framed, and introduced, and 
 caused to be passed, — a task well worthy of the first Judge of the first 
 Criminal Court in the country. By the statute 14 & 15 Vict. c. 100, 
 the whole mass of little points and legal subtleties in indictable cases 
 has been swept away, and hereafter criminal trials will be upon the 
 merits, and the merits alone. Nor can or ought the accused to com- 
 plain of this : if guilty, he has no right to be acquitted ; if innocent, his 
 best defence will be upon the merits. And in both cases, he will ex- 
 perience the same mild, patient, unimpassioned mode of trial, the same 
 indulgence, the same facilities of bringing his case before the jury in 
 the best, the most advantageous manner, that has hitherto prevailed. 
 And if there be a fair and reasonable doubt upon the merits, he will 
 still find the jury inclined, and directed by the judge, to give him the 
 benefit of the doubt. 
 
 "We are now, therefore, entering upon a new era in the administra- 
 tion of our Criminal Law; and Lord Campbell's Act, together with 
 other statutes recently passed, create a new system of procedure, plead- 
 ing, and, I may add, evidence, very different from that hitherto in 
 practice. I have undertaken to develope this new system in the fol- 
 lowing work ; and in doing so, I have encountered the usual difficulty, 
 in engrafting the new matter on the old, so as to form of the whole one 
 uniform, consistent system. Whether I have succeeded or not, it 
 would not become me to assert; but I can with great sincerity say, that 
 I have used every endeavor within my limited ability to do so. Nor 
 is this so recent an undertaking as some persons may imagine. Lord 
 Campbell first brought in his Bill in 1850 ; and I then foreseeing the 
 immense consequences of the measure, and the new system of adminis- 
 tering our Criminal Law which it would introduce, determined on de- 
 veloping it, and reducing the whole to a practical form. I then ar- 
 ranged the plan of my intended work, collected and arranged my ma- 
 terials, and actually wrote a portion of it, when Lord Campbell's Bill, 
 
PREFACE TO THE ENGLISH EDITION. XXXV 
 
 owing to his Lordship being on circuit at the time, was relinquished 
 by Ministers in the Commons. In 1851, his Lordship again brought 
 it forward ; it passed the House of Lords, and by the aid of a good 
 select committee, with the Eight Honorable the President of the Poor 
 Law Commission as Chairman, it passed the House of Commons, and 
 after some slight difficulty in the Lords relating to some amendments 
 of the Commons, the Bill was passsed. I then renewed my labors, the 
 result of which I now offer to the Profession for their approval, trust- 
 ing that it will be received with the same favor and indulgence which 
 they have shown to my former works. 
 
 This work will be found to comprise the whole of the Criminal 
 Law in indictable cases, from the apprehension of the offender, to his 
 conviction and sentence. The apprehension of the prisoner, without 
 warrant, is given from the common law authorities ; his apprehension 
 by warrant, the examination of the witnesses against him, and his com- 
 mitment or bail, is given from the first of Jervis's Acts, stat. 11 & 12 
 Vict. c. 42. The indictment has assumed a new and more concise 
 form : no addition is given to the defendant, because it is, and has long 
 been useless, and the indictment is now good without it ; time is stated, 
 not that it is now required, but in order to conform to the prejudices 
 of Grand Juries, who might possibly otherwise throw out the Bill ; 
 place or special venue in the body of the indictment is omitted, in all 
 cases where it is not of the essence of the offence and the statement 
 of the offence, instead of being in that inverted style hitherto used, 
 and seemingly borrowed from literal translations of our old Latin En- 
 tries, is according to the usual and ordinary English collocation of the 
 words, — which has often the effect of rendering averments unnecessary, 
 which the inverted style required. Upon this new principle, I have 
 given a whole body of forms, comprising indictments in nearly all the 
 cases which occur in practice ; and as the new system in many cases 
 created an alteration in the evidence, I have thought it right and con- 
 venient, after each indictment, to state the evidence necessary to sup- 
 port it. I have little else to add, except that I have endeavored to be 
 correct ; I have endeavored to use language so plain and precise, that 
 it cannot be misunderstood or misinterpreted ; I have endeavored to 
 arrange the matter of the work in a manner to' render it easily intelli- 
 gible ; and I have labored to give an index, from which any matter 
 contained in the work may be found with great facility. I do not say 
 that I have succeeded in all this ; but if I have, I trust the reader will 
 agree with me in thinking that the work will be useful, which is the 
 only commendation I expect or wish for it. 
 
 J. F. A. 
 
 9, King's Bench Walk, Temple, 1852. 
 
INTRODUCTION. 
 
 BY THE AMERICAN EDITOR. 
 
 OF CRIMES AND PUNISHMENTS. 
 
 1. The General Nature of Crimes. 
 
 2. The Power, End, and Measure of Human Punishment. 
 
 1. The General Nature of Grimes. 
 
 § 1. The idea conveyed by the word crime, is often vague and inde- 
 finite. This word is derived from the Greek word x§'/* a which signi- 
 fies judgment and condemnation. It may, therefore, be defined a 
 transgression of law for which the offender may be brought to judg- 
 ment. There was a distinction among the Eomans between the words 
 crimen and delictum. By the first, they understood public and capital 
 offences ; by the latter, private and expiable injuries. They likewise 
 made a very marked distinction between peccatum and delictum. By 
 the former, they expressed acts of commission against prohibitory laws; 
 by the latter, acts of omission against mandatory laws. The Bomans 
 however, often used these and other words of the like import, indis- 
 criminately ; and we find crimen, peccatum, delictum, noxa, culpa, &c. 
 synonymously applied. The Greeks, in this respect, were much more 
 precise ; for they most frequently used the word 6/*6gni/ia to signify 
 peccatum, while the other words %yx).rii*a, tima, &c. are applied indis- 
 criminately. 
 
 § 2. Crimes may be considered either as they regard ourselves, or as 
 they concern others. There are duties relative to ourselves, as well as 
 others ; and every breach of duty is a crime. Man, having by nature, 
 the liberty of using his faculties conformably to right reason, it follows 
 that every abuse of his faculties in committing, or omitting any act, 
 against the dictates of right reason, is, in some degree, a crime. Con- 
 sequently, inebriety, where it is wilful, and not accidental, and all acts 
 of intemperance, though their consequences may terminate only in our- 
 
XXXV1U INTRODUCTION. 
 
 selves, may be ranked among the lesser species of crimes, as being con- 
 trary to the law of nature. Such offences Aristotle calls mixed crimes ; 
 as being partly voluntary, and partly involuntary. But though these 
 crimes immediately affect ourselves, yet, consequentially and remotely, 
 they may concern others ; not only as the bad example may influence 
 others to similar transgressions, but as inebriety, lust, and other acts of 
 intemperance, dispose and provoke us to do things to the prejudice of 
 others. Hence, the municipal laws of most countries, have provided 
 penalties against acts of intemperance ; not so much as they immedi- 
 ately concern the individual, as that they consequentially endanger the 
 order and safety of society, the preservation of which ought to be the 
 object of all human laws. It would indeed be well, if human laws 
 were more attentive to prevent and restrain all acts of excess and in- 
 temperance, and all those slighter offences contra bonos mores, which 
 certainly lead to the commission of enormous and capital crimes, 
 Slight penalties, properly enforced for the breach of these lesser duties, 
 might obviate the necessity of severe and sanguinary punishments. 
 Punishments which remove a member out of the community weaken 
 the whole body ; whereas, wise regulations, and moderate penalties, 
 a priori strengthen society, by obliging every individual to the practice 
 of moral duties. The sources of crimes are pride, envy, ambition, lust, 
 avarice, hatred, revenge, and every other selfish affection indulged to 
 excess. Though it is impossible wholly to eradicate these sources of 
 offence, we may yet weaken their influence, and obviate their effects. 
 The seeds of pride, envy, ambition, &c. though inherent in our nature, 
 may be checked in their growth. The force of education, will contri- 
 bute greatly to restrain their progress. And what education is to in- 
 dividuals, good laws are to the whole community. (See Dagge's Cr. 
 Law, vol. 1.) 
 
 § 3. Puffendorf reckons those crimes the most henious which directly 
 tend to the dishonor of the Supreme Being. In the next class, he 
 ranks those which are offensive to human society in general ; then such 
 as disturb the public peace. After these, he places crimes which re- 
 gard individuals ; and these he subdivides into crimes affecting either 
 life or member. In the next rank, he classes crimes tending to disturb 
 or defile private families, of which matrimony is the support. In the 
 next degree he considers crimes which prejudice or destroy those things 
 which are subservient to the necessaries or conveniencies of life ; and 
 lastly those which injure the fame or reputation of the citizen. Mon- 
 tesquieu who agrees substantially with Puffendorf, reckons four degrees 
 of crime. Those of the first class, he says, shock religion ; those of the 
 second, morals ; of the third, peace ; and of the fourth, the security of 
 society. These several degrees of offence correspond in a great mea- 
 
INTRODUCTION. XXXIX 
 
 sure, with the arrangement in the Decalogue, in which the crimes re- 
 specting religion and morals, are placed before those which concern 
 property or the political welfare of society. 
 
 § 4. Offences are of two kinds : — private offences, and public offen- 
 ces ; the former being an infringement or privation of the civil rights 
 which belong to individuals ; while the latter are a breach and viola- 
 tion of the public rights and duties due to the whole community in its 
 social aggregate capacity. (4. Blk. Com. 5.) By offences of a private 
 nature, we mean those offences which affect individuals, in their persons 
 — in their habitations — in their property generally — in their reputation 
 — in their profession or trade — in their civil, religious, or political rights. 
 By offences of a public nature, we mean those offences which affect 
 those institutions or authorities, having a relation to the public: — as 
 the sovereignty of the state — the Executive power — the Legislative 
 power — judges and jurors in their official capacity — officers of justice — 
 public justice — public peace — public trade — public health — public de- 
 cency — and public morals. 
 
 § 5. Private offences are denominated civil injuries ; public offences, 
 crimes. This distinction is purely artificial, and referable only to civil 
 institutions. For crime in all cases, includes a civil injury ; every 
 public offence being also a private wrong. So, every violation of a 
 moral law or natural obligation, is a crime as well as an injury. Con- 
 sequently, when the word crime is used with reference to moral law, it 
 implies every deviation from moral rectitude. Hence we say it is a 
 crime to refuse the payment of a just debt ; it is a crime, wilfully to do 
 an injury to another's person or property. When, however, it has refer ■ 
 ence to positive law, it comprehends those acts only which subject the 
 offender to punishment ; while those acts for which the legislature has 
 provided compensation in damages, are denominated injuries merely. 
 (See 4 Blk. Com.) 
 
 § 6. A crime, in its more limited sense, is an act committed or omit- 
 ted in violation of a public law, either forbidding or commanding it. 
 This general definition comprehends both crimes and misdemeanors, 
 which properly speaking are mere synonymous terms ; though in com- 
 mon usage, the word " crime" is made to denote such offences as are of 
 a deeper and more atrocious dye ; while smaller faults and omissions 
 of less consequence are comprised under the gentler name of " misde- 
 meanors" only. (4 Blk. Com. 5.) But the act done or omitted in order 
 to be criminal, must be wilful. The consent of the will is that which 
 renders human actions either commendable or culpable ; and where 
 there is no will to commit an offence, there can be no transgression. 
 
xl INTRODUCTION. 
 
 2. The Power, Mid, and Measure of Human Punishment. 
 
 § 7. It is clear that the right of punishing crimes against the law of 
 nature, is, in a state of mere nature, vested in every individual. For it 
 must be vested in somebody ; otherwise, the laws of nature would be 
 vain and fruitless if none were empowered to put them in execution : 
 and if that power is vested in any one, it must also be vested in all 
 mankind ; since all, are by nature, equal. Of this, the first murderer 
 Cain was so sensible, that we find him expressing his apprehensions 
 that whoever should find him, would slay him. (Gen. iv 14.) 
 
 § 8. In a state of society, this right is transferred from individuals, 
 to the sovereign power ; whereby men are prevented from being judges 
 in their cause, which is one of the evils that civil government was in- 
 tended to remedy. Whatever power therefore individuals had of 
 punishing offences against the law of nature, that is now vested in the 
 magistrate alone, who bears the sword of justice by the consent of the 
 whole community. And to this precedent natural power of indivi- 
 duals, must be referred that right which some have argued to belong to 
 every state (though in fact never exercised by any,) of punishing not 
 only their own subjects, but also foreign ambassadors, even with death 
 itself, in case they have offended, not indeed against the municipal laws 
 of the country, but against the divine law of nature, and become liable 
 thereby to forfeit their lives for their guilt. (4 Blk. Com. 8.) 
 
 § 9. As to offences merely against the laws of society, which are 
 only mala prohibita and not mala in se, the temporal magistrate is also 
 empowered to inflict coercive penalties for such trangression ; and this, 
 by the consent of individuals, who, in forming societies did either 
 tacitly, or expressly invest the sovereign power with the right of 
 making laws, and of enforcing obedience to them when made, by ex- 
 ercising, upon their non-observance severities adequate to the evil. 
 The lawfulness therefore, of punishing such criminals, is founded upon 
 this principle, that the law by which they suffer, was made by their 
 own consent ; it is a part of the original contract into which they en- 
 tered, when first they engaged in society ; it was calculated for, and 
 has long contributed to, their own security. (4 Blk. Com. 8.) 
 
 § 10. This right therefore being thus conferred by universal consent, 
 gives to the state exactly the same power, and no more, over all its 
 members, as each individual member has naturally over himself or 
 others. Hence, some have doubted how far a human legislature ought 
 to inflict capital punishments for positive offences — offences against the 
 municipal laws only, and not against the law of nature ; since no in- 
 
INTRODUCTION. xli 
 
 dividual has, naturally, a power of inflicting death upon himself, or 
 others, for actions in themselves indifferent. "With regard to offences 
 mala in se, capital punishments are, in some instances, inflicted by the 
 immediate command of God himself, to all mankind ; as in the case of 
 murder, by the precept delivered to Noah, their common ancestor and 
 representative, ' ' whoso sheddeth man's blood, by man shall his blood 
 be shed." (Gen. ix, 6.) In other instances, they are inflicted after the 
 example of the Creator in his positive code of laws for the regulation of 
 the Jewish republic : as in the case of the crime against nature. (4 
 ■Blk. Com. 9.) 
 
 § 11. Experience shows that in countries remarkable for the lenity 
 of their laws, the spirit of the inhabitants is as much affected by slight 
 penalties, as in other countries, by severer punishments. If an incon- 
 venience, or abuse, arises in the state, a violent punishment endeavors 
 suddenly to redress it ; and instead of putting the old laws in execution 
 it establishes some cruel punishment which instantly puts a stop to the 
 evil. But the spring of government hereby loses its elasticity ; the 
 imagination becomes accustomed to the severe as well as to the milder 
 punishment ; and as the fear of the latter diminishes, they are soon 
 obliged, in every case, to have recourse to the former. Eobberies on 
 the highway had grown common in some countries. In order to 
 remedy this evil, they invented the, punishment of breaking upon the 
 wheel, the terror of which put a stop, for a while, to this mischievous 
 practice; but soon after, robberies on the highway, became as common 
 as ever. Mankind must not be governed with too much severity. We 
 ought to make a prudent use of the means which nature has given us 
 to conduct them. If we inquire into the cause of all human corrup- 
 tions, we shall find that they proceed from the impunity of criminals, 
 and not from the moderation of punishments. Let us follow nature 
 which has given shame to man ; and let the heaviest part of the pun- 
 ishment be the infamy attending it. If there be some countries where 
 shame is not a consequence of punishment, this must be owing to 
 tyranny which has inflicted the same penalties on villians and honest 
 men. And if there are others where men are deterred only by cruel 
 punishments, we may be sure that this must, in a great measure, arise 
 from the violence of the government which has employed such penal- 
 ties for slight transgressions. It often happens that a legislator desir- 
 ous of remedying an abuse, thinks of nothing else. His eyes are open 
 only to this object, and shut to its inconveniences. When the abuse is 
 redressed you see only the severity of the legislator ; yet there remains 
 an evil in the state that has sprung from this severity. The minds of 
 the people are corrupted and habituated to despotism. (Montesq. Sp. 
 ofL. book 6, ch. 12.) 
 
 F 
 
Xlii INTRODUCTION. 
 
 § 12. Every punishment, says Montesquieu, -which does not arise 
 from absolute necessity, is tyrannical. This proposition may be made 
 more general, thus : Every act of authority, of one man over another, 
 for which there is not an absolute necessity, is tyrannical. It is upon 
 this then, that the State's right to punish crimes is founded ; that is, 
 upon the necessity of defending the liberty of all entrusted to its care 
 from the usurpation of individuals ; and punishments are just, in pro- 
 portion as the liberty preserved by the State, is sacred and valuable. 
 (Beccaria on Cr. ch. 5.) 
 
 § 13. Human punishment is not by way of atonement or expiation 
 for the crime committed ; for that must be left to the just determination 
 of the Supreme Being ; but as a precaution against future offences of the 
 same kind. This is effected in three ways : either by the amendment 
 of the offender himself, for which purpose, all corporal punishments, 
 fines, and temporary exile or imprisonment are inflicted ; or by deter- 
 ring others, by the dread of his example from offending in the like way, 
 " ut poena" as Cicero fully expresses it, " ad paucos, metus ad omnes, per- 
 veniat" which gives rise to all ignominious punishments, and to such ex- 
 ecutions of justice, as are open and public ; or lastly, by depriving the 
 party injuring, of the power to do future mischief, which is effected by 
 either putting him to death, or condemning him to perpetual confine- 
 ment or exile. The one end, of preventing future crimes, is endeav- 
 ored to be answered by each of these three species of punishment. The 
 public gains equal security, whether the offender himself be amended, 
 by wholesome correction, or whether he be disabled from doing any 
 farther harm ; and if the penalty fails "of both these effects, as it may 
 do, still, the terror of his example remains as a warning to other 
 citizens. The method, however, of inflicting punishment, ought always 
 to be proportioned to the particular purpose it is meant to serve, and 
 by no means to exceed it. Therefore, the pains of death, and perpe- 
 tual disability by exile or imprisonment, ought never to be inflicted 
 except when the offender appears incorrigible ; which may be collected, 
 either from a repetition of offences, or from the perpetration of some 
 one crime of deep malignity, displaying a disposition without hope or 
 probability of amendment. It would be cruelty to the public to defer 
 the punishment of such a criminal, until he had an opportunity of re- 
 peating perhaps the worst villanies. (4 Blk. Com. 11, 12.) It is evi- 
 dent that the intent of punishments is not to torment a sensible being, 
 nor to undo a crime already committed. It is no other than to prevent 
 the criminal from doing further injury to society, and to prevent others 
 from committing the like offence. Such punishments therefore, and 
 such a mode of inflicting them, ought to be chosen, as will make the 
 
INTRODUCTION. xliii 
 
 strongest" and most lasting impression on the minds of others, with the 
 least torment to the body of the criminal. (Becoaria on Or. oh. 12.) 
 
 § 14. The quantity of punishment can never be absolutely deter- 
 mined, by any standing invariable rule ; but it must be left to the ar- 
 bitration of the legislature to inflict such penalties as are warranted 
 by the laws of nature and society, and such as appear to be the best 
 calculated to answer the end of precaution against future offences. 
 Hence, it will be evident, that what some have so highly extolled for 
 its equity, the lex talionis, or law of retaliation, can never be, in all 
 cases', an adequate, or permanent rule of punishment. In some cases, 
 indeed, it seems to be dictated by natural reason ; as in the case of con- 
 spiracy to do an injury ; or false accusation of the innocent : to which 
 we may add that law of the Jews and Egyptians mentioned by Jose- 
 phus and Didorus Siculus, that whoever, without sufficient cause, was 
 found with any mortal poison in his custody, should himself be obliged 
 to take it. But, in general, the difference of persons, place, time, pro- 
 vocation, or other circumstances, may enhance or mitigate the offence, 
 and in such cases, retaliation can never be a proper measure of justice. 
 (4Blk. Com. 12.) 
 
 § 15. It is not only the common • interest of mankind, that crimes 
 should not be committed, but that crimes of every kind, should be less 
 frequent in proportion to the evil they produce to society. Therefore, 
 the means made use of by the legislature to prevent crimes, should be 
 more powerful in proportion as the crimes are destructive of the pub- 
 lic safety and happiness, and as the inducements to commit them are 
 stronger. Hence, there ought to be a fixed proportion between crimes 
 and punishments. Pleasure and pain are the only springs of action in 
 beings endowed with sensibility. Even among the motives which in- 
 cite men to acts of religion, the invisible legislator has ordained re- 
 wards and punishments. Prom a partial distribution of these, will 
 arise that contradiction so little observed, because so common. I mean 
 that of punishing by the laws, the crimes which the laws have occa- 
 sioned. If an equal punishment be ordained for two crimes that in- 
 jure society in different degrees, there is nothing to deter men from 
 committing the greater, as often as it is attended with greater advan- 
 tage. (Beccaria on Or. ch. 6.) It is an essential point, that there 
 should be a certain proportion in punishments, because it is important 
 that a great crime should be avoided rather than a smaller, and that 
 which is more pernicious to society, rather than that which is less. 
 (Montesq. b. 6, c. 16.) 
 
 § 16. But though, from what has been said, it appears, that there 
 
x liv INTRODUCTION. 
 
 cannot be any regular or determinate method of rating the quantity of 
 punishment for crime, by any one uniform rule but it must be re- 
 ferred to the will and discretion of the legislative power ; yet there are 
 some general principles, drawn from the nature and the circumstances 
 of the crime, that may be of some assistance in allotting it an adequate 
 punishment. And first, with regard to the object of it : for the greater 
 and more exalted the object of an injury is, the more care should be 
 taken to prevent that injury ; and of course, under this aggravation, 
 the punishment should be more severe. Therefore treason in conspir- 
 ing against the state, is punished with equal severity, as actually killing 
 any private citizen. And yet, generally, a design to transgress is not 
 so flagrant an enormity, as the actual completion of that design. For 
 evil, the nearer we approach it, is the more disagreeable and shocking. 
 So that it requires more obstinacy in wickedness to perpetrate an un- 
 lawful action, than barely to entertain the thought of it. And it is an 
 encouragement to repentance and remorse, even Until the last stage of 
 any crime, that it is never too late to retract ; and that if a man stops, 
 even here, it is better for him than if he proceeds. Hence an attempt 
 to rob, to ravish, or to kill, is far less penal than the actual robbery, 
 rape, or murder. Again, the violence of passion or temptation may 
 sometimes alleviate a crime. Theft in case of hunger, is far more 
 worthy of compassion, than when committed through avarice, or to 
 supply one in luxurious excesses. To kill a man upon sudden or 
 violent resentment, is less penal, than upon cool, deliberate malice. 
 The age, education, and character of the offender, the repetition (or 
 otherwise) of the offence, the time, the place, the company wherein it 
 was committed ; all these, and a thousand other incidents, may aggra- 
 vate or extenuate the crime. Farther, as punishments are chiefly in- 
 tended for the prevention of future crimes, it is but reasonable that 
 among crimes of different natures, those should be* most severely pun- 
 ished which are the most destructive of the public safety and happiness. 
 And among crimes of an equal malignity, those which a man has the 
 most frequent and easy opportunities of committing, which cannot be 
 so easily guarded against as others, and which therefore the offender 
 has the strongest inducement to commit — according to what Cicero 
 observes, " ea sunt animadvertenda peccata maxime qua diffieillime jprce- 
 caventur." 
 
 § 17. Lastly, as a conclusion to the whole, we may observe, that 
 punishments of unreasonable severity, especially when indiscriminately 
 applied, have less effect in preventing crimes, and amending the man- 
 ners of a people, than such as are more merciful in general, yet pro- 
 perly intermixed with due distinctions of severity. It is the sentiment 
 of an ingenious writer who seems to have well studied the springs of 
 
INTRODUCTION. xlv 
 
 human action, that crimes are more effectually prevented by the cer- 
 tainty than by the severity of punishment. (Beccaria, c. 7.) Excess in 
 severity of laws, hinders their execution. "When the punishment sur- 
 passes all measure, the public will frequently prefer impunity to it. 
 We may further observe, that sanguinary laws are a bad symptom of 
 the distemper of any government, or at least, of its weak state. The 
 laws of the Eoman kings, and the twelve tables of the Decemviri, were 
 full of cruel punishments. The Porcian law, which exempted all citi- 
 zens from sentence of death, silently abrogated them all. In this 
 period, the republic nourished. Under the emperors, severe punish- 
 ments were revived ; and then the empire fell. 
 
TABLE OF CONTENTS. 
 
 Part I. Proceedings for Indictable Offences, 2. 
 
 n. Indictment and Evidence in particular Cases, 206. 
 
 PAET I. 
 PROCEEDINGS FOR INDICTABLE OFFENCES. 
 
 CHAPTER I. 
 
 Persons capable of committing Indictable Offences, and the degree in which they may 
 
 be~ guilty. 
 
 section i. 
 
 What persons are punishable or excusable for crime, 3 ; infants, 3 ; idiots and luna- 
 tics, 4 ; wife, 6 ; ambassadors and their servants, 8 ; aliens, 8 ; corporations, 8 ; 
 persons offending from chance, mistake, &c, 9 ; persons offending through com- 
 pulsion, 10; persons who are the innocent agents of others, 10. 
 
 SECTION H. 
 
 Degrees of guilt, 11. — Principals, 11. — Accessories before the fact, 14; who, and in 
 what cases, 14; when and how tried and punished, 15. — Accessories after the 
 fact, 17 ; who and in what cases, 17 ; when and how tried, 18 ; punishment, 19. — 
 Persons who solicit or incite others to commit offences, which are not afterwards 
 committed, 19. — Persons who attempt to commit crimes, but do not complete 
 them, 20. 
 
 CHAPTER II. 
 Apprehension of Offenders. 
 
 SECTION I. 
 
 Arrest of offender without warrant, 21. — In the act of committing the offence, 21 • 
 in case of riots, 23. — After offence committed, 25. — In prevention of offences, 27. 
 —By constable, 27 ; by magistrates, 27 ; on hue and cry, 28.— When and where, 
 28 ; how, 28. 
 
Xlviii TABLE OF CONTENTS. 
 
 SECTION II. 
 
 Apprehension under a warrant, 30 ; warrant, in 'what cases and how, 30 ; or sum- 
 mons and warrant, 31 ; warrant how and where executed, 33 ; warrant for offences 
 at sea or abroad, 35. 
 
 SECTION III. 
 
 The examination and commitment, 35. 
 
 1. In cases where the arrest is in the same county, &c, where the offence was com- 
 mitted, 35 ; taking the depositions, 35 ; remand, 36 ; summons of witness, 39 ; 
 defence, 42 ; discharge and commitment, 44 ; where committed, for trial at the 
 sessions, 45 ; where committed, for trial at the assizes, 45 ; committal from county 
 of a town for the assizes", 46 ; the like, from towns, &c, not being counties, 47 ; 
 binding by recognizance, transmission of depositions, 47 ; copy of depositions for 
 the defendant, 51. 
 
 2. Examination and commitment, where the arrest is in a different county from that 
 in which the offence was committed, 51 ; warrant, if evidence prove the charge, 
 51 ; warrant, if evidence do not prove the charge, 52 ; costs of constable, 53 ; how, 
 where the arrest is under a backed warrant, 54. 
 
 3. Bail, 55 ; in treason, 55 ; in felony and certain misdemeanors, 55 ; how, after com- 
 mitment, 57; in other misdemeanors, 58; warrant of deliverance, 58. 
 
 SECTION IV. 
 
 Conviction of juvenile offenders for larceny, 59 ; in what cases, 59 ; summons or 
 warrant, 60 ; hearing, 60 ; conviction and commitment, 60 ; dismissal of the 
 charge, 62. 
 
 CHAPTER III. 
 Indictment and Pleadings. 
 
 Indictment, 63. 
 
 1. Venue, 63 ; what, 6.3 ; general rule, 63. — Offences in the county of a city or town 
 corporate, 64; offences on a journey or voyage, &c, 64; offences on the bounda- 
 ries of counties, 65 ; offences begun in one county and completed in another, 65 ; 
 offences partly in England, partly out, 65 ; offences abroad, 66 ; offences at sea, 66 ; 
 murder and manslaughter, 68 ; libel, 68 ; larceny, 69 ; embezzlement, 69 ; false 
 pretences, 70 ; stealing from wreck, &c, 71 ; receivers, 71 ; forgery, 71 ; treason or 
 conspiracy, 72 ; unlawful oaths, 72 ; foreign service, 72 ; inciting to mutiny, 72 ; 
 smuggling, 72 ; post-office, 73 ; counterfeit coin, 73 ; escape and rescue from 
 prison, 73 ; returning from transportation, 73 ; sending a challenge to fight, 74 ; 
 threatening letter, 74 ; bigamy, 74 ; for an offence of omission, 74 ; accessories 
 before the fact, 74 ; accessories after the fact, 75 ; central criminal court, 75. — 
 Defective venue cured, 75. 
 
 2. Commencement of indictment, 75 ; caption, 76. 
 
 3. Body of the indictment, 78 ; defendant, how named, 78 ; prosecutor or party 
 injured, how named, 79 ; time, 83 ; place, 85 ; statement of the offence, 85 ; intent, 
 87 ; statement must be positive, 87 ; statement must be certain, 87 ; statement 
 must not be repugnant, 91 ; technical words, 91. 
 
TABLE OF CONTENTS. xlix 
 
 4. Conclusion of the indictment, 92 ; against the peace, 92 ; against the form of the 
 statute, 92 ; want of a proper conclusion, 93. 
 
 5. Joinder of offences, 93 ; several counts for the same offence, 93 ; second count for 
 a different offence, 95. 
 
 6. Joinder of defendants, 96. 
 
 7. Indictment how preferred and found, 97. 
 
 8. Indictment, in what cases amendable, 99 ; for Variance as to written instruments, 
 100 ; for variance in other respects, 100. 
 
 9. Indictments, when and how quashed, 102. 
 
 section n. 
 
 Appearance and plea. 
 
 1. Process upon indictment to outlawry, 102; process, 102; outlawry, 103; bench 
 
 warrant, 103 ; warrant of justice out of sessions, 104. 
 .2. Arraignment and plea, 108; arraignment, 108; standing mute, &c, 109; plea, 
 
 109 ; traverse, 110. 
 
 3. Special plea, 110; plea in abatement, 110; auterfois acquit, 111 ; auterfois convict 
 or attaint, 114; pardon, 114; pleas to indictment for not repairing highways, 114. 
 
 4. Demurrer, 114 ; demurrer to indictment, 115 ; demurrer to plea, 116.' 
 
 CHAPTER IV. 
 Evidence. 
 
 SECTION I. 
 
 i 
 "What must be proved and the manner of proving it, 117. 
 
 1. What must be proved, and by whom, 117; by the prosecutor, 117; all the 
 facts, &c, stated, 118; time, place, 119; intent, &c, 119 ; malice, 120; guilty 
 knowledge, 121 ; by the defendant, 123; variance, 123. 
 
 2. The manner of proving the matter in issue, 125. 
 
 By confessions, 125 ; confession to prosecutor, constable, &c, 125 ; without induce- 
 ment, 126 ; before a magistrate, 131 ; by presumptions, 134; by proofs, 136 ; best 
 evidence, 136; secondary evidence, 137; notice to produce, 138; by dying decla- 
 rations, 140. 
 
 SECTION II. 
 
 Written evidence, 141 ; acts of parliament, 141 ; other records, 141 ; matters qvftd of 
 record, 143 ; other public documents, 145 ; depositiori of witnesses deceased, or 
 unable to travel, 147 ; deeds and other private written instruments, 148. 
 
 section in. 
 Parol evidence, 149. 
 
 1. Who may be witnesses, 149 ; Quakers, &c, 149 ; Jews, Turks, &c, 150 ; infants, 
 150 ; deaf and dumb persons, 150 ; lunatics, 1'50 ; judge or juror, 151 ; prosecutor, 
 151 ; persons interested in the event, 151 ; inhabitants, 152 ; husband and wife, 
 152 ; attorney, 153 ; one of two defendants, 153 ; L accomplice, 154 ; persons con- 
 victed, 155. 
 
 2. Numbers of witnesses required, 155. , 
 
 3. Witnesses, how compelled to attend, 156. 
 
 4. Witnesses' expenses, 156. 
 
 G 
 
1 TABLE OF CONTENTS. 
 
 CHAPTER Y. 
 The Trial, &c. 
 
 SECTION I. 
 
 The jurors, 157; qualification, 15V; exemptions, 157 ; jury de medietate lingum, 159; 
 jurors in boroughs, 160 ; grand jury called, sworn, and charged, 161 ; petty jury 
 called and sworn, 161 ; challenge of jurors, 163; petty jury charged, 165. 
 
 SECTION H. 
 
 The trial, 166; case stated and evidence for the prosecution, 167; case stated and 
 evidence for the defence, 169 ; witnesses in reply, 169 ; reply, &c, 170 ; adjourn- 
 ment of the trial, 170 ; summing up, 170. 
 
 section in. 
 
 Verdict, 171 ; retiring of the jury, 171 ; in what cases the jury may be discharged, 
 171 ; delivery of the verdict, 173 ; for a less offence than is charged, 173 ; for 
 another offence than that charged, 174 ; for the offence charged, though another 
 proved, 174 ; on several counts, 175 ; agairfst some of several, 176. 
 
 section IV. 
 Judgment, 177. 
 
 1. Motion for a new trial, 177. 
 
 2. Motion in arrest of judgment, 178. 
 
 3. Judgment, 180; sentence of death, 180; sentence of transportation, 182; of impri- 
 sonment, 182; hard labor, 183; whipping, 184; punishment for felony, 185; 
 punishment for a misdemeanor at common law, 185 ; sentence, where the party is 
 in custody for another offence, 185. — Judgment amended, 186. 
 
 4. Costs, 186 ; in prosecutions for felony, 186 ; in prosecutions for misdemeanors, 
 187; costs of attending before the examining magistrate, 189 ; in prosecutions for 
 offences at sea, 188 ; in other cases, 189 ; rewards, &c, for apprehending certain 
 offenders, 189; what expenses, &c, allowed, 190; costs taxed, and order for the 
 same, 191. 
 
 6. Restitution of stolen goods, 192. 
 6. The record, 193. 
 
 Appeal to the criminal appeal court, 194; the court and its judges, 194; appeal, in 
 what cases, 194; case, 195; hearing and judgment, 196; subsequent proceed- 
 ings, 196. 
 
 SECTION VI. 
 
 Writ of error, 198; in what cases, 198; attorney-general's flat, 199; the written 
 return, 199; bail, 200; assignment of errors, 200; joinder in error, 201; argu- 
 ment, &c, 201 ; judgment, &c, 201. 
 
 SECTION VII. 
 
 Execution, 202; death, 202; transportation, 204; imprisonment, 204; in other 
 cases, 204. 
 
TABLE OF CONTENTS. 
 
 PART II. 
 INDICTMENTS AND EVIDENCE IN PARTICULAR CASES. 
 
 CHAPTER I. 
 Offences against the persons of individuals. 
 
 1. Murder, 206. Indictment, 206 ; evidence, 208 ; the killing, 208 ; the malice pre- 
 pense, 213. 
 
 Homicide by accident, 216. The act must be lawful, 216 ; without intent to do 
 
 bodily harm, 217 ; done in a proper manner and with due caution, 218. 
 Homicide in furtherance of justice, 221. In executing criminals, 221 ; upon an 
 
 arrest, &c, 222. 
 Homicide in defence of self, family, or property, 223. Se defendendo, 223 ; se 
 
 et sua defendendo, 225. 
 Manslaughter, 226. On provocation, 226 ; in case of sudden combat, 229. 
 Murder, 236. In killing officers of justice, 236 ; in killing gamekeepers, 245 ; 
 
 in impressing seamen, 248. \ 
 
 Principals and accessories, 249. Principals, 249 ; accessories before the fact, 
 
 253 ; accessories after the fact, 254. 
 
 2. Manslaughter, 254. Indictment, 254 ; evidence, 255. 
 
 3. Administering poison, 255. Indictment, 255 ; evidence, 256. 
 
 4. Attempting to administer poison, 258. Indictment, 258 ; evidence, 259. 
 
 5. Stabbing, cutting, or wounding with intent to murder, 259. Indictment, 259 ; 
 evidence, 260. 
 
 6. Stabbing, cutting, or wounding, with intent to maim, &c, 262. Indictment, 262 ; 
 evidence, 263. 
 
 7. Misdemeanor in stabbing, cutting, or wounding, 267. Indictment, 267; evi- 
 dence, 268. 
 
 8. Inflicting grievous bodily harm, 268. Indictment, 268 ; evidence, 268. 
 
 9. Doing bodily injury, dangerous to life, 269. Indictment, 269 ; evidence, 269. 
 
 10. Shooting at a person with intent to murder, 270. Indictment, 270; evidence, 
 271, 
 
 11. Attempting to shoot at a person with intent to murder, 272. Indictment, 272 ; 
 evidence, 273. 
 
 12. Shooting or attempting to shoot with intent to do grievous bodily harm 274. 
 Indictment, 274; evidence, 275. 
 
 13. Attempting to drown, 276. Indictment, 276; evidence, 276. 
 
 14. Attempting to suffocate, 277. Indictment, 277 ; evidence, 277. 
 
 15. Attempting to strangle, 277. Indictment, 277; evidence, 278. 
 
 16. Causing gunpowder to explode, with intent, to do grievous bodily harm 278. 
 . Indictment, 278 ; evidence, 278. 
 
 17. Sending any explosive substance to a person, with intent to do grievous bodily 
 ' " harm, 279. Indictment, 279 ; evidence, 280. 
 
 18. Throwing any corrosive fluid at or on a person, with intent to do grievous bodily 
 harm, 280. Indictment, 280; evidence, 281. 
 
 19. Assault and battery, 282. Indictment, 282 ; evidence, 282. 
 
Hi TABLE OF CONTENTS. ' 
 
 20. Assault, and doing bodily harm, 284 Indictment, 284; evidence, 285. 
 
 21. Assault with intent to commit a felony, 285. Indictment, 285 ; evidence, 285. 
 
 22. Assaulting a justice of the peace, &c, on account of his preserving wreck, 286. 
 Indictment, 286 ; evidence, 286. 
 
 23. Assaulting peace officers or revenue officers, 287. Indictment, 287 ;' evidence, 
 288. 
 
 24. Assaulting gamekeepers, 288. Indictment, 288 ; evidence, 289. 
 
 25. Assault to prevent apprehension, 290. Indictment, 290 ; evidence, 290. 
 
 26. Assaulting apprentices or servants, 290. Indictment, 290 ; evidence, 291. 
 
 27. Not providing apprentices or servants with necessary food, &c, 291. Indict- 
 ment, 291 ; evidence, 292. 
 
 28. False imprisonment, 293. Indictment, 293 ; evidence, 293. ,. 
 
 29. Setting spring-guns, &c, 294. Indictment, 294; evidence, 294. 
 
 30.. Administering drugs, &c, to procure abortion, 295. Indictment, 295; evidence, 
 1 295. • 
 
 ►'J 
 
 31. Using instruments to procure abortion, 296. Indictment, 296; evidence, 297. 
 
 32. Concealment of birth, 297. Indictment, 297 ; evidence, 298. 
 33.. Child stealing, 299. Indictment, 299 ; evidence, 300. 
 
 34. Abduction of a girl against her will, from the motive of lucre, 301. Indictment, 
 301 ; evidence, 301. 
 
 35. Abduction of a girl under sixteen years of age, 302. Indictment, 302 ; evi- 
 dence, 302. 
 
 36. Procuring the defilement of a girl under age, 303. Indictment, 303 ; evidence, 
 304. 
 
 37. Rape, 304. Indictment, 304; evidence, 304. 
 
 38. Attempt to commit a rape, 308. Indictment, 308 ; evidence, 308. 
 
 39. Sodomy, 309. Indictment, 309 ; evidence, 309. 
 
 40. Attempt to commit sodomy, 310. Indictment, 310 ; evidence, 310. 
 
 41. Bestiality, 311. Indictment, 311 ; evidence, 311. 
 
 42. Carnally knowing a girl under ten years of age, 811. Indictment, 311 ; evi- 
 dence, 312. 
 
 43. Carnally knowing a girl between the ages of ten and twelve, 312. Indictment, 
 312 ; evidence, 313. 
 
 44. Indecent assault, 313. Indictment, 313 ; evidence, 314. 
 
 CHAPTER II. 
 Offences against the reputation of individuals, 316. 
 
 1. Libel, 816. Indictment, 316 ; pleas of not guilty and a justification, 317; repli- 
 cation, 317; evidence under the general issue for the .prosecution, 818; evidence 
 under .the general issue for the defendant, 320; evidence in respect of the special 
 plea, 321 ; verdict, judgment, and costs, 321. 
 
 2. Threatening to publish a libel, &c, with intent to extort, 323. Indictment, 323; 
 evidence, 328. 
 
 3. Letter threatening to accuse of crime with intent to extort, 323. Indictment, 
 323 ; evidence, 324. 
 
 4. Accusing or threatening to accuse, with intent to extort, 325. Indictment, 325 ; 
 evidence, 326. 
 
 5. Accusing or threatening to accuse, and thereby extorting, 327. Indictment, 327 ; 
 evidence, 327. 
 
TABLE OP CONTENTS. liii 
 
 CHAPTER III. 
 Offences against the habitation of individuals, 328. 
 
 1. Burglary, 328. Indictment, 328 ; evidence, 330. 
 
 The breaking, 330 ; the entry, 332 ; the dwelling-house, 333, or out-house, 335 ; 
 whose dwelling-house, 336 ; where situate, 339 ; the intent, 340 ; the felony com- 
 mitted, 340. 
 
 2. Burglary and personal violence, 341. Indictment, 341 ; evidence, 343. 
 
 3. Burglary by breaking out of a house, 342. . . Indictment, 342 ; evidence, 343. 
 
 4. Breaking and entering a building within the curtilage, 344 ; indictment, 344 ; evi- 
 dence, 344. 
 
 5. House breaking, 347. Indictment, 347 ; evidence 347. » 
 
 6. Breaking and entering a shop, warehouse, or counting-house, and stealing, 348. 
 Indictment, 348 ; evidence, 349. 
 
 7. Breaking and entering a church or chapel, and stealing, 350. Indictment, 350 ; 
 evidence, 351. 
 
 8. Being armed. &c, with intent to break and enter a dwelling-house, &c, 353. 
 Indictment, 353 ; evidence, 353. 
 
 CHAPTER IT. • 
 
 Offences against the property of individuals, by stealing, embezzling, cheating, or 
 
 receiving. 
 
 1. Simple larceny at common law, 354. Indictment, 354; several counts, 360; 
 verdict, 361; evidence, 369 : (Larceny, what, 362; the taking, 362; the car- 
 , rying away, 362 ; the personal goods of another, 362 ; of any value, 363 ; against 
 the will or without the consent of the owner, 364 ; without any bona fide claim 
 of right, 365 ; with a felonious intent, 366. By whom larceny may be com- 
 mitted, 367.) 
 
 1. Presumptive or circumstantial evidence, 369. 
 
 2. Direct evidence of the larceny, 371. The taking, 371 ; actual, 371 ; constructive, 
 
 371—379 ; the carrying away, 379 ; the felonious intent, 381 ; bailees, 382— 
 386 ; servants, 386 ; goods found, 387 ; the identity of the goods and ownership 
 390. 
 
 2. Larceny of valuable securities, 391. 
 
 Stealing securitiesfor the payment of money, 391. Indictment, 391- evidence 
 392. ' 
 
 Stealing writings relating to real estate, 394. Indictment, 394; evidence 394. 
 
 Stealing, destroying, or concealing a will, 396. Indictment, 396 ; evidence 396. 
 
 Stealing,, obliterating, or destroying a record, &c, 397. Indictment, 397'; evi- 
 dence, 397. 
 
 3. Stealing cattle or other animals, 398. 
 
 Stealing horses, cattle, or sheep, 398. Indictment, 398 ; evidence, 399. 
 Killing cattle or sheep, with intent to steal the carcass, 401. Indictment 401 • 
 
 evidence, 401. 
 Hunting or stealing deer in inclosed places, 402. Indictment, 402 ; evidence 402 
 Hunting or stealing deer in uninclosed places, 403. Indictment, 403 • evidence' 
 
 404. ' ' 
 
liv TABLE OP CONTENTS. 
 
 Taking or killing conies or hares by night in warrens, &c„ 404. Indictment, 
 
 404 ; evidence, 405. 
 Night poaching, 405. Indictment, 405 ; evidence, 406. 
 Taking fish in water belonging to a dwelling-house, 410. Indictment, 410 ; 
 
 evidence, 410. 
 Stealing oysters or oyster brood, 411. Indictment, 411 ; evidence, 411. 
 
 4. Stealing things fixed to the freehold, 411. 
 
 Stealing lead, iron, &c, fixed to buildings, &c, 411. Indictment, 411 ; evi- 
 dence, 412. 
 Stealing trees, shrubs, or underwood, 413. Indictment, 413 ; evidence, 414. 
 Stealing from mines, 415. Indictment, 415 ; evidence, 416. 
 
 5. Stealing from the per'son, 417. 
 
 Robbery, 417. Indictment, 417; evidence, 418. 
 
 Robbery and wounding, &c, 424. Indictment, 424 ; evidence, 425. 
 
 Assault with intent to rob, 425. Indictment, 425 ; evidence, 426. 
 
 Demanding money with menaces or by force, with intent to steal, 427. In- 
 dictment, 427 ; evidence, 427. 
 
 Letter demanding money with menaces, 428. Indictment, 428 ; evidence, 429. 
 
 Stealing from the person, 431. Indictment, 431 ; evidence, 431. 
 
 Using chloroform, &c, for the purpose of committing a felony, 432. Indict- 
 ment, 432 ; evidence, 432. 
 
 6. Stealing in a dwelling-house or building, 433. 
 
 Stealing in a dwelling-house to the value of 51., 433. Indictment, 433 ; evidence, 
 433. 
 
 Stealing in a dwelling-house, and by menaces putting some person therein in 
 bodily fear, 435. Indictment, 435 ; evidence, 436. , 
 
 Stealing from a building, &c, goods in the process of manufacture, 436 ; In- 
 dictment, 436 ; evidence, 437. 
 
 7. Stealing from ships, wharfs, &c. 437. 
 
 Stealing from a vessel on a navigable river, 437. Indictment, 437 ; evidence, 
 
 438. 
 Stealing from a dock, wharf, or quay, 439. Indictment, 439 ; evidence, 439. 
 Stealing from a ship in distress or wrecked, 440. Indictment, 440. evidence 
 
 441. 
 
 8. Stealing by tenants and lodgers, 441. Indictment, 441 ; evidence, 442. 
 
 9. Stealing by clerks or servants, 442. Indictment, 442 ; evidence, 443. 
 
 10. Embezzlement, 446. 
 
 Embezzlement by a clerk or.servant, 446. Indictment, 446 ; evidence; 449. 
 
 Embezzlement by bankers or agents, 459. Indictment, 459 ; evidence, 460. 
 
 Factor pledging the goods of his principal, 460. Indictment, 460 ; evidence, 
 461. 
 
 Embezzlement by officers in the Queen's service, 462. Indictment, 462 ; evi- 
 dence, 462. 
 
 11. Cheating or defrauding, 463. 
 
 Obtaining money by false pretences, 463 ; Indictment, 463 ; evidence, 465. 
 Attempt to obtain goods, &c, by false pretences, 472. Cheat at common law, 
 473. 
 
 12. Receiving goods stolen, &c, 473. 
 
 Receiving stolen goods, 478. Indictment against principal and receiver, 473 ; 
 indictment against a receiver as for a substantive felony, 474 ; indictment for 
 stealing and receiving, 475 ; evidence, 477 ; verdict, 480. 
 
TABLE OP CONTENTS. lv 
 
 Receiving goods obtained by false pretences, 481. Indictment, 481 ; evidence, 
 481. 
 13. Piracy, 481. 
 
 Piracy at common law, 481. Indictment, 481 ; evidence, 483. 
 Piracy and wounding, &c, 484. 
 Piracy by statute, 484. 
 
 CHAPTER V. 
 Offences against the property of individuals, oy. malicious injuries, 485. 
 
 1. Malicious injuries to houses, &c, 485. 
 
 Setting fire to a house, out-house, &c, 485. Indictment, 485 ; evidence, 486. 
 
 Setting fire to a house, any person being therein, 489. Indictment; 489 ; evi- 
 dence, 490. 
 
 Setting fire to farm buildings, &c, 491. Indictment, 491 ; evidence, 491. 
 
 Setting fire to hay, straw, &c, in a farm building, with intent to set fire to the 
 building, 492 ; indictment 492 ; evidence, 492. 
 
 Setting fire to a church or chapel, 493. Indictment, 493 ; evidence, 493. 
 
 Riotously beginning to demolish a church, house, &c, 494. Indictment, 494 ; 
 
 . evidence, 494. 
 
 Destroying a dwelling-house by gunpowder, &c. 496. Indictment, 496 ; evi- 
 dence, 497. 
 
 2. Malicious injuries to manufactures, machinery, &c, 
 
 Destroying silk, wollen, linen or cotton goods in the loom &c.,498. Indict- 
 ment, 498 ; evidence, 498. 
 
 Breaking or destroying warps of silk, cotton, &c, or certain machinery, 499. 
 Indictment, 499 ; evidence, 499. 
 
 Entering a building by force, with intent to commit either of the two last men- 
 tioned offences, 500. Indictment, 500; evidence, 501. 
 
 Destroying machines in other manufactures, threshing machines, &c, 501. In- 
 dictment, 501 ; evidence, 501. 
 
 3. Malicious injuries to farm produce, trees, &c. 
 
 Setting fire to crops of corn, plantations, &c. 502. Indictment, 502 ; evidence 
 
 503. 
 Setting fire to stacks of corn, peat, wood, Ac. 503, Indictment, 503 ; evidence, 
 
 504. 
 Destroying hop-binds, 505. Indietment, 505 ; evidence 505. 
 Destroying or damaging trees, shrubs, &c. 506. Indictment, 506 ; evidence 
 
 506. ' 
 
 4. Malicious injuries to mines, 507. 
 
 Setting fire to a coal mine, 507. Indictment, 508 ; evidence, 508. 
 
 Drowning a mine, 508. Indictment, 508 ; evidence, 509. 
 
 Filling up or obstructing airways or shafts, &c., of mines, 509. Indictment, 
 509 ; evidence, 510. 
 
 Damaging the steam engines, staiths, waggon-ways, &c, of mines, 510. Indict- 
 ment, 510 ; evidence, 511. 
 6. Malicious. injuries to rivers, canals, ponds, bridges, turnpike gates &c. 512. 
 
 Breaking down sea or river banks, and overflowing lands, 512. Indictment j 
 512 ; evidence, 512. 
 
Ivi TABLE OF CONTENTS. 
 
 Destroying looks, sluices, Ac:, on navigable rivers, canals, &c. 513. Indictment, 
 
 513 ; evidence, 513. 
 Removing piles, &c. fixed in the ground, for securing river or sea banks, 513. 
 
 Indictment, 513 ; evidence, 514. 
 Drawing up flood gates or doing other damage to navigable rivers or canals, 
 
 514. Indictment, 514; evidence, 515. 
 Breaking down the dam of a fish-pond, 515. Indictment, 515 ; evidence, 516. 
 Putting lime, &c., into a fish-pond, Ac, 516. Indictment, 516 ; evidence, 516. 
 Breaking down or destroying the dam of a mill-pond, 517. Indictment, 517 ; 
 
 evidenoe, 517, 
 Destroying or damaging a bridge, 517. Indictment, 517; evidence, 518. 
 Destroying turnpike-gates, weighing . machines, &c, 518. Indictment, 518 ; 
 
 evidence, 518. 
 
 6. Malicious injuries with respect to railways, 519. 
 
 Placing wood, &c, on rails, with intent, &c, 519. Indictment, 519 ; evidence, 520. 
 Throwing a stone, &c, against or upon a railway carriage, 4c, with intent, &c, 
 
 520. Indictment, 520 ; evidence, ,520. 
 Setting fire to stations or warehouses, &c, 521. Indictment, 521 ; evidence, 521. 
 
 7. Malicious injuries to works of art, 521. 
 
 Destroying or damaging anything kept for the purpose of art or science in a 
 
 museum, 521. Indictment, 521 ; evidence, 522. 
 Destroying or damaging any picture, statue, or monument in a church or in 
 
 public, 522. Indictment, 522 ; evidence, 523. 
 
 8. Malicious injuries to animals, 523. 
 
 Killing or wounding cattle or sheep, 523. Indictment, 523 ; evidence, 523. 
 
 9. Malicious injuries to ships, 525. 
 
 • Setting fire to or casting away ships, whereby life is endangered, &c, 525. In- 
 dictment, 525 ; evidence, 526. 
 
 Setting fire to or destroying a ship, 526. Indictment, 526 ; evidence, 527. 
 
 Setting fire to or casting away a ship, to prejudice the owner or underwriters, 
 527. Indictment, 527 ; evidence, 528. 
 
 Damaging a ship otherwise than by fire, 529. Indictment, 529 ; evidence, 529. 
 
 Exhibiting false lights, to bring a ship into danger, 530. Indictment, 530 ; evi- 
 dence, 530. 
 
 Doing anything tending to the loss of a ship in distress, 530. Indictment, 530 ; 
 evidence, 531. 
 
 Destroying a ship in distress or wrecked, or goods belonging to it, 531. Indict- 
 ment, 531 ; evidence, 532. 
 
 Impeding a person saving himself from wreck, 532. Indictment, 532 ; evidence, 
 532. 
 
 10. Letter, threatening to burn or destroy property, or to kill or murder, 533. In- 
 
 dictment, 533 ; evidence, 533. 
 
 CHAPTER VI. ' 
 
 Forgery, 534. 
 
 Indictment, 534 ; punishment, 535 ; evidence, 536. 
 
 1. The forging, 537. 
 
 2. The uttering, 547. ' 
 
 3. The instrument forged, 552. 
 
TABLE OF CONTENTS. lvii 
 
 CHAPTER VH. 
 Offences against the Queen and her Government. 
 
 1. Treason, under stat. 25 Ed. 3, st. 5, c. 2, p. 564. Indictment, 564; arraignment 
 
 and plea, 565 ; jury and witnesses, 566 ; evidence, 566 ; trial, 566 ; principals, 
 Ac, 566 ; other treasons, 567. 
 
 2. Felony against Her Majesty, 567. Indictment, 567; limitation of prosecution, 
 
 569; evidence, 569. 
 
 3. Attempt to fire at, or do other injury to Her Majesty, 569. Indictment, 569 ; 
 
 evidence, 570. 
 
 CHAPTER Til . 
 Offences of a Pliblic Nature. 
 
 Offences relating to the Coin, 571. 
 
 1. Counterfeiting the coin, 571. Indictment, 571 ; evidence, 571. 
 
 2. Uttering counterfeit coin, 572. Indictment, 572 ; evidence, 572. 
 
 3. Uttering and having other base coin in his possession, 573. Indictment, 573 ; 
 
 evidence, 574. 
 
 4. Uttering twice within ten days, 575. Indictment, 575 ; evidence, 575. 
 
 5. Uttering after a former conviction, 575. Indictment, 575 ; evidence, 576. 
 
 6. Having base coin, with intent to utter it, 577. Indictment, 577 ; evidence, 577. 
 
 SECTION II. 
 
 Offences relating to the post-office, 578. 
 
 1. Persons employed by the post-office, stealing or embezzling letters, 578. Indict- 
 
 ment, 578 ; evidence, 579. 
 
 2. Stealing a post-letter or post-letter bag from a post-office, 581. Indictment, 581 ; 
 
 evidence, 582. < 
 
 3. Stealing money, Ac., out of a post-letter, 582. Indictment, 582 ; evidence, 683. 
 
 SECTION III. 
 
 Smuggling, 683. 
 
 1. Armed assemblies, to assist in smuggling, 583. Indictment, 583 ; evidence, 584. 
 
 2. Being found with uncustomed goods, armed, and in company with another, 585. 
 
 Indictment, 685; evidence, 585. 
 
 3. Shooting at or wounding officers of the customs, &c, 586. Indictment, 586 ; evi- , 
 
 dence, 586. 
 
 4. Assaulting or obstructing officers of the customs, &c, in the exercise of their 
 
 duty, 587. Indictment, 587 ; evidence, 687* 
 
 SECTION IV. 
 
 Riot, 589. 
 
 Indictment, 589 ; evidence, 589. 
 
 H 
 
l v iii TABJ.E OS CONTENTS. 
 
 SECTION V. 
 
 Perjury, 591. 
 
 In what cases prosecution ordered, 591. Indictment, 592; form of it, 600; 
 
 evidence, 602. 
 Subornation of perjury, 606. 
 
 SECTION VI. 
 
 Nuisance, 607. 
 
 Indictment for carrying on an offensive trade near a highway, 607 ; evidence, 
 607. 
 
 SECTION VII. 
 
 Bigamy, 610. 
 
 CHAPTER IX. 
 
 Conspiracy, 615. 
 
 Indictment, 615; evidence, 618; witnesses, 622; verdict, Ac, 622. 
 
 CHAPTER X. 
 
 Subsequent felony, 623. 
 
 Indictment, 623 ; arraignment, 624 ; evidence, 626. 
 
 Larceny after two summary convictions, 626. Indictment, 627 ; evidence, 628. 
 
 CHAPTER XI. 
 
 Attempts to commit Offences. 
 
 Attempt to commit felony or misdemeanor, 628. 
 
 Attempt to set fire to buildings, ships, mines, stacks, &c, 629. 
 
 Assault with intent to rob, 629. 
 
 Assault with intent to commit other felony, 630. 
 
TABLE OF CASES. 
 
 * PAGE 
 
 Abbot, 2 Car. & K. 630, 468 
 
 Abbot and Vandercomb, 2 Eaat, P. C. 
 
 614, 329 
 
 Abrahat, 2 East, P. 0. 569, 443 
 
 Ackroyd et al.,' 1 Car. & K.-158, 143, 626 
 Adam,s et al., Car. & M. 299 115, 495 
 
 Adams, 3 Gar. & P. 600, 310 
 
 Adams, 1 Russ. 728, . ' 260 
 
 Adams, Phineas, R &Ry. 225, 375 
 
 Adams v. Kelly, Ry. & M. N. P. C. 157, 318 
 Adamson, 1 Car. & K. 192, 469 
 
 Addis, 6 Car. & P. 388, 22, 30, 154, 247 
 
 Adey's case, I Leach, 206, 253 
 
 Adey, 19 Law J. 149 m, 449, 453 
 
 Aickle's case, 2 East, P. C. 968, 541 
 
 Aiokles, 1 Leach, 330, 137, 139, 378 
 
 Airey, 2 East, 30, 468 
 
 Albone et al., 5 Car. & P. 525.' Ry. & M. 
 
 380, . 247 
 
 Alison, 9 Car. & P. 418, 252 
 
 Allen, 1 Car. & K. 495, 311 
 
 Allen and Wortley, 2 Car. & K. 283, 352 
 
 Allen, 2 Car. & K. 869, 310 
 
 Allen, 7 Car. & P. 156, 9, 219 
 
 Allen, 9 Car. & P. 31, , 305 
 
 Allen, R.&Ry. 513, 404 
 
 Allison alias Wilkinson, R. & Ry. 109, 613 
 Alton, Mary, York Spr. Ass. 1841, MS., 299 
 Araier. 6 Car. & P. 344, 348 
 
 Amos, 20 Law J. 103 m, 488, 492 
 
 Anderson, Russ. 531, 
 Andrews, 2 Mo. & R. 37, 
 Anon. 2 Car. & P. 459, 
 Anon. 6 Car. & P. 408, 
 Anon. 1 East, P. C. 261, 
 Anon. 2 Moody, 40, 
 Anon. R. & Ry. 107, 
 Anon. 1 Russ. 621 ; 8 T. R. 454, 
 Anon. 2 East, P. C. 556, 
 Anon. Tent. 33, 
 Anon. Id. 171, 
 Appleby et al., 3 Stark. 33, 
 Archer,. Eliz. et al., Ry. & M. 143, 
 Aris, 6 Car. & P. 348, 
 Arnold, 16 How. St. Tr 764, 
 Arrowsmith v. Le Mesurier, 2 New Rep, 
 
 211, 
 Arscott, 6 Car. & P. 408, 
 Ashton, 1 B. & Ad. 750, 
 Asterley, 7 Car. & P. 191, 
 Astley v. Young, 2- Burr. 817, 
 
 230 
 406 
 370 
 79, 360 
 218 
 264 
 20 
 242 
 381 
 199 
 199 
 125 
 
 504 
 4 
 
 33 
 
 561 
 500 
 469 
 321 
 
 PAGE 
 
 Astley, J. & E. 2 East, P. C. 729, 420 
 
 Aston, 2 Car. & K. 413, 456 
 
 Athea, Ry. & M. 329, 339 
 
 Atkinson, Car. & M. 325, 560 
 
 Atkinson, Car. & M. 525, 451 
 
 Atkinson, 2 East, P. C. 673, 375 
 
 Atkinson, 1 Leach, 305 n, 445 
 
 Atkinson and Brighton, R. & Ry. 25, 549 
 
 Atkinson, R. & Ry. 104, 260 
 
 Atwell et al., 2 East, P. C. 767, 479 
 
 Audley's, Lord, case, 1 St. Tr. 388. 153 
 
 Austin, 1 Car. & K. 621, 410 
 
 Avery, 8 Car. & P. 596, 563 
 
 Ayes, R. & Ry. 166, 232 
 
 Aylett v. R. 3 Bro. P. C. 529, 78 
 Ayrey v. Fearnsides et al., 4 Mees. & W. 
 
 168, 176 
 
 Azyre, 1 Str. 633, 153 
 
 Azzopardi, 1 Car. & K. 203, 208 
 
 B 
 
 Backler, 5 Car. &P 118, 538 
 
 Badcock et al., R. & Ry. 249, 548 
 
 Badder et al., R. & Ry. 314, 175 
 
 Bailey, R. & Ry. 1, " 121, 214 
 
 Bailey, John, Ry. & M. 23, 339 
 
 Baker,. 1, Car. & K. 254, 273 
 
 Baker's case, 1 East, P. C. 323, 244 
 
 Baker, Ry. & M. 231, 558 
 
 Baker, 13 Shaw's J. P. 429, 352 
 
 Baldney v. Ritchie, 1 Stark. 338, 138 
 
 Baldwin, R. & Ry. 241, 477 
 
 Ball, Car. & M. 249, 20, 473 
 
 Ball, JR. & Ry. 132, 122, 552 
 
 Ball, Ry. & M. 30, 488 
 Ball, Ry. & M.. 330, 22, 30, 245, 246 
 
 Ball, James, Id. 333, 30, 246 
 
 Balme, Cowp. 648, ] 
 
 Banks, R. k Ry. 441, 382, 383 
 
 Barham, Ry. & M. 151, 410 
 
 Barker, 3 Car. & P. 389, 307 
 
 Barman, 1 Car. & K. 295, n 
 
 Barnard, 7 Car. & P. 784, 465 , 
 
 Barnes, 20 Law J. 34 m, 47 1 
 
 Barratt, 2 Car. & K. 343, 220 
 
 Bartholomew, 1 Car. & K. 366, 699 
 
 Bartlett, 2 Mo. & R. 362, 653 
 
 Barton, Ry. & M. 141, 561 
 
 Bass, % Car. & K. 882, 167 
 
lx. 
 
 TABLE OP CASES. 
 
 PAGE 
 
 Bass's case, 2 East, P. C. 566, 1 Leach, 
 
 285, 38?, 443 
 
 Bate v. Kinsey, 1 Cr. M. & R. 38, 153 
 
 Batt et al., 6 Car.. ft P. 329, 496 
 
 Bayley, et al., R. k R. 341, 332 
 Baynes v. Brewster. 11 Law J. 5 m; ' 26 
 
 Bazely, 2 Leach, 835, » 363 
 
 Beacall, 1 Car. k P. 454, 448 453 
 
 Beacall, 1 Car. k P. 457, ' 451 
 
 Beacall, Ry. k M. 15, 448 
 
 Beaman, Car. & M. 595, 445 
 
 Beany, R. k Ry. 416, 401 
 
 Beckwith v. Philby, 6B. & C. 635, 25, 26, 238 
 
 Beechey, R. & Ry. 390, 454 
 
 Beetou, 2 Car. ft K. 960, 476 
 
 Belstead, R. k Ry. 411, 358 
 
 Beneseeh, Peake, Ad. Ca. 93, 597 
 Benfleld and Saunders, 2 Burr. 985, 96, 319 
 
 Bennet et al., R. k Ry. 289. • 331, 340 
 
 Bennett, 20 Law J. 217, 598 
 
 Bennett, 14 Shaw's J. P. 514, 326 
 
 Bernard et al., 1 Car. k P. 88, 154 
 
 Berriman, 5 Car. & P. 601, 360 
 
 Berriman, 5 Car. k P. 601, 79 
 
 Berriman v. Wise, 4 T. R. 366, 136 
 
 Berry's case, 2 Jon. 167, 199 
 
 Bickerstaff, 2 Car. k K. 761, 579 
 
 Biers et al., 1 Ad. & El. 327, 616, 619 
 
 Bignold, 4 D. & R. 70, 170 
 
 Billinghurst, 3 M. & S. 250, 611 
 
 Bingley et al., 5 Car. ft P. 602, , 423 
 
 Bird, 9 Car. k P. 44, 330 
 
 Bird and Nash, 2 Car. & K. 817, 298 
 
 Birket, 4 Car. & P. 216, 400 
 Birket, R. & Ry. 86, 545, 546, 548, 550, 553 
 
 Birmingham, 8 B. & C. 29, 610 
 Birmingham and Gloucester Railway 
 
 Company, 3 Q. B. 223, 9 
 
 Birt et al., 5 Car. k P. 154, 590 
 
 Bishop. Car. ft M. 302, 594 
 
 Bisweli, 11 Shaw's J. P. 582, 303 
 
 Bitton, 6 Car. k P. 92, 109 
 
 Blackham, 2 East, P. C. 117, 419 
 
 Blackmore, 1 Esp. 95, 151 
 
 Biea, 8 Car. ft P. 735, 624 
 Bleasdale, 2 Car. & K. 765, 11, 96, 416, 417 
 
 Blick, 4 Car. & P. 277, 477 
 
 Bloomfleld, Car. k M. 537, 467 
 
 Boardman, 2 Mo. ft R. 147, 661 
 
 Boden, 1 Car. & K. 395, 427 
 
 Bolland's case, 2 East, P. 0. 958 ; 1 Leach, 
 
 83, 539 
 
 Bond, 19 Law J. 138 m, 44,134 
 
 Bonner, 6 Car. & P. 386, 141 
 
 Bontien, R. ft Ry. 260, 544 
 
 Boober, 14 Shaw's J. P. 355, 7 
 
 Bootyman, 5 Car. ft P. 300, - 448 
 
 Borrett, 6 Car. & P. 124, 579 
 
 Borth wick's case, 1 Doug. 207, 248 
 
 Boswell et al., Oar. ft M. 584, 127 
 
 Botham v. Swingler, 1 Esp. 164, 155 
 
 Boucher, 4 Oar. ft P. 563, 430 
 
 Boult, 2 Car. k K. 604, 564 
 
 Boulton, 2 Car. ft K. 917, 471 
 
 Boulton, 5 Car. k P. 637, 81, 359 
 
 Bourdon, 2 Car. k K. 366, 142 
 
 Bourne et al., 7 Ad. ft El. 58, 202 
 
 Bourne, 5 Car. ft P. 120, 230, 238 
 
 PAGE 
 Bowden, 1 Car. ft K. 147, 434 
 
 Bowen, 1 Car. k K. 501, 115 
 
 Bowen, 2 Ca_r. ft K. 227, 611 
 
 Bowen, Car. ft M. 149, 12, 265, 267 
 
 Bowen, 19 Law J., 65 m, 464, 472 
 
 Bowman, 6 Car. ft P. 337, 114 
 
 Bowyer et al., 4 Oar. ft P. 559, 526, 529 
 
 B05, R. ft Ry. 300, ,556 
 
 Boyal, 2 Burr. 831, 1 
 
 Bbyce, 4 Burr. 2073, 11 
 
 Boyce, Ry. k M. 29, 264, 267 
 
 Boyd, 19 Law J., 141, 132 
 
 Bradfoot's case, Post. 154, 248 
 
 Brady e» al., R. k Ry. 249, 548 
 
 Brain, 6 Car. ft P. 349, 21-1 
 
 Bramley, Phoeby, R. k Ry. 478, 7, 368 
 
 Brampton, 10 Bast, 282, ' 613 
 
 Brannan, 6 Car. & P. 326, . ■ - 539 
 
 Brawn and Webb, 1 Car. ft K. 144, ■ 615 
 Brazier, R. k Ry. 337, 384 
 
 Brian et al., 1 Ad. k El. 436 n, 89 
 
 Brice, 2 B. ft Aid. 606, 168, 177 
 
 Brice, R. ft Ry. 450, 330, 332, 340, 343 
 
 Bridgman et al., Car, k M. 271, 166 
 
 Briggs, Ry. & M. 3,18, 261 
 
 Brighton et al., R. & Ry. 25, 649 
 
 Brlmilow, 9 Car. ft P. 366, 305 
 
 Brisac and Scott, 4 East, 164, 171, 72, 
 
 618,619 
 Bromwlck's case, 1 Lev. 180, 234 
 
 Brooks et al., Car.,& M. 544j 329, 350 
 
 Brooks et al., 2 Car. & K. 402, 410 
 
 Broom v. Reg. 12 Shaw's J. P. 628, 76 
 
 Brown, Car. &M. 314, 27 
 
 Brown, 1 East, P. 0. 245, 1 Leach, 151, 229 
 Brown's case, 2 East, P. C. 487, 497, 
 
 330, 334 
 Brown, 2 East, P. C. 731, 420 
 
 Brown and Parkes, 2 East, P. C. 963, 550 
 Brown, Mo. &M. 315, 602 
 
 Brunswick, Ry. & M. 27, 358 
 
 Bubb, 14 Shaw's J. P. 562, 209 
 
 Bucheretal. v. Jarrat, 3 B. &P. 143, 139 
 
 Bull's case, 2 East, P. C. 572 cit., 446 
 
 Bull, 2 Leach, 841, cit., 363 
 
 Burbon, 5 M. ft S. 392, 177 
 
 Burdett, 4 B. ft Aid. 95, 69 
 
 Burdett,Id. 314, 316 
 
 Burrowes, R. k Ry. 274. 335 
 
 Burton v. Payne, 2 Car. k P. 520, 138 
 
 Burton, Ry, k M. 237', 450 
 
 Burton upon Trent, 3 M. k S. 537, 611 
 
 Bush, R. &Ry. 372, 477 
 
 Butler, 1 Car. &K. 221, 125 
 
 Butler, 6 Car. k P. 368, 20 
 
 Butler, 2 Car. &K. 340, 445 
 
 Butler et al., Ry. k M. 380, 5 Car. k P. 
 
 505, , 247, 
 
 Butterworth et al., R. k Ry. 520, 97, 347 
 
 Buttery and McNamarra, R. k Ry. 342, 563 
 Bylbrd and Robinson, R. ft Ry. 521, 348 
 
 C 
 
 Cabbage, R. ft Ry. 292, 367, 399 
 
 Cadman, Ry. k M. 114, 267, 259 
 
 Caih, Car. & M. 39, 359 
 
TABLE OF CASES. 
 
 lix 
 
 PAGE 
 
 Cain, Id. 309, 369 
 
 Callahan, 8 Car. & P. 154, 449 
 
 Callanan, 6B.& C. 102, 5,99 
 
 Camfield et al., Ry. & M. 42, 337 
 
 Campbell, 1 Car. & E. 82, 81 
 
 Campbell, 2 East, P. C. 644, 2 Leach, 642, 435 
 
 Campbell, John, Ry. & M. 179, 373 
 
 Camplin, 1 Car. & K. 746, 3.06 
 
 Canniff, 9 Car. &, P. 359, 236 
 
 Cannon and Coddington, R. & Ry. 146, 420 
 
 Cant v. Parsons, 6 Car. & P. 604, 293 
 
 Capewell and Pegg, 5 Car. & P. 549, 410 
 
 Carlisle, 3 B. & A. 167, 321 
 
 Carney, Ry.&M. 351, 558 
 
 Carr, 8 Car. & P. 163, 220 
 
 Carr, R. & Ry. 198, 450 
 
 Carr, R. &Ry. 377, 273 
 
 Carrel's ease, 2 East, P. C. 506, 339 
 
 Carrol, Ry.&M. 89, 435 
 
 Carter, 1 Car. & K. 1 7 3, 349 
 
 Carter, 2 Car &K. 741, 559 
 
 Cartwright, R. & Ry. 106, 470 
 
 Case, 19 Law J. 17*4 m, 315 
 
 Castle's ease, 1 Hale, 558, 345 
 
 Castteton, 6 T. R. 236, 137 
 
 Chadwick, 6 Car. & P. 181, 470 
 Chad-wick v. Trower et al, 8 Law J. 
 
 286 ex., 176 
 
 Chalk and Hears, 20 Law J. 59 m, 304 
 
 Chalking et al., R. & Ry. 334, 346 
 
 Chalkley, R. & Ry. 258, 523 
 
 Challis's case, 1 Hawk. c. 45, s. 8, 413' 
 
 Chalmers, Ry. & M. 35% 92 
 
 Channels, Ry. & M. 374, 158 
 
 Chapman, 1 Oar.A K. 119, 457 
 
 Chapman, 2 Car. & K. 846, 593 
 Chappel et al., 5 East, P. C. 669, 2 Leach, 
 
 698, 378 
 
 Chappie, R. & Ry. 77. 625 
 Charlewood's case, 2 East, P. C. 689; 1 
 
 Leach, 456, 382 
 Chasham et al., Ry ; 4, M. 380 ; 5 Car. & 
 
 P. 525, 247 
 
 Chater, 13 Shaw's J. P. 766, 306 
 
 Cheafor, 15 Id. 801, 363 
 
 Cheeseman, 7 Car. & P. 454, 209, 218 
 
 Cherry, 2 East, P. C. 556, 381 
 
 Child v. Affleck, 9 B. & 0. 403, 320 
 Chipehase, 2 East, P. C. 567 ; 2 Leach, 
 
 805, 387, 443 
 
 Christian, Car. & M. 388, 142, 593 
 
 Christian et al., 12 Law J. 26 m, 496 
 
 Clarke/1 Car. & K. 421, 329 
 
 Clarke, R. & Ry., 181, 393 
 
 Clarke, 2- Stark. N. P. C. 241, 307 
 
 Clay's case, 2 East, P. C. 580, 579 
 
 Clay, R. & Ry. 387, 401 
 
 Clayton et al., 1 Car. S, K 128, 15, 96 
 
 Cleeves, 4 Car. & P. 221, 129 
 
 Clements, 20 Law J. 193 m, 148 
 
 Clifford, 2 Car. & K. 202 1 1 
 
 Clifford, 6 Car. & P. 175 126 
 Cluderoy, 2 Car. & K. 907; 19 Law J. 
 
 119 m 258 
 
 Coates, 6 Car. & P. 394 27 1 
 
 Coates et al. v. Birch, 2 Q. B. 252 153 
 
 Cockayne v. HodgkinsOn, 5 Car. & P. 543 320 
 
 Coddington, R. & Ry. 146 420 
 
 PAGE 
 
 Codrington, 1 Can & P. 661 470 
 
 Cohen, 1 Stark. 511, 516 Iff, 594 
 
 Cole, 1 Esp. 217 151 
 
 Cole, 1 Ph. Ev. 170 125 
 Coleman's'case, 2 East, P. C. 672 ; 1 Leach, 
 
 339 ' 377, 467 
 
 Coley, 1 Moody & M. 329 167 
 
 Collett et al., R. k Ry. 498 336 
 
 Collins and Hazy, 2 Car. & P. 458 118 
 
 Combes, 1 East, P. C. 367 . 67 
 
 Compton et al, 3 Car. & P. 418 341 
 
 Connell, 1 Car. & K. 190 571 
 
 Conner, 7 Car. & P. 438 218 
 
 Coogan's case, 2 East, P. C. 943 563 
 
 Cook, 8 Car. &, P. 582 548 ' 
 
 Cooke, 5 B. & C. 538 623 
 
 Cook's case, Cro. Car. S3J '225, 244 
 
 Cook, 1 Leach, 105 400 
 
 Cooper, 5 Car. & P 534 15, 129 
 
 Cooper, 3 Car. & K. 686 562 
 
 Copeland, Car. & M. 516 466 
 
 Cornwall, R. & Ry. 336 298 
 
 Cornwall's case, 2 Str. 881 331 
 
 Coslett, 1 Leach, 236 380 
 
 Coulson et al., 19 Law J. 182 m 464 
 
 Coupey r. Henley, 2 Esp. 540 26 
 
 Cowell and Green, 2 East, P. C- 617 474, 478 
 
 Cowles v. Dunbar, Moody & M. 31 26 
 
 Cox, 1 Car. & K. 494 88, 355 
 
 Cox et al., 4 Car. & P. 37 590 
 
 Cox, 5 Car. & P. 297 305 
 
 Cox, 1 Leach, 71 696 
 
 Cox, R. & Ry. 362 265 
 
 Coxhead, 1 Car. & K. 623 299 
 
 Cozens, 6 Car. & P. 351 311 
 
 Craddock, 20 Law J. 21 m 180 
 
 Craddock, 15 Shaw's J. P. 20 476 
 
 Crawford, 2 Car. & K. 129 281 
 
 Creed, 1 Car. & K. 63 455 
 
 Creevey, 1 M. &S. 273 321 
 
 Crick. 5 Car. & P. 508 406 
 
 Crighton R. & Ry. 62 448 
 
 Crisham, Car. & M. 187 13, 304 
 
 Crispin, 12 Shaw's J. P. 324 91 
 
 Crockett, 4 Car. & P. 544 141 
 
 Cromptou, Car. &, M. 597 291 
 Crompton v. Bearcroft, Bui. N. P. 113 612 
 
 Cross, 3 Camp. 227 608 
 
 Crossley, 2 Mo. &R. 17 470 
 
 Crowhurst, 1 Car. & K. 370 168, 369 
 
 Crowther, 5 Car. & P. 316 559 
 Cruse et ux., 2 Moody, 53 ; 8 Car. St P. 
 
 541 269, 270 
 
 Crutchley, 5 Car. & P. 133 502 
 
 Cuddy, 1 Car. & K. 210 235 
 
 Cuffy, 12 Shaw's J. P. 648, 807 569 
 Curran, 3 Car. & P. 397 22, 30, 238, 244 
 
 Curtis, Post. 135 241 
 
 Curvan, Ry, & M. 132 30, 266 
 
 Cutts, 14 Shaw's J. P. 655 598 
 
 D 
 
 Dadson, 20 Law J. 59 nj 223 
 
 Dale, 7 Car. & P. 352 471 
 
 Dalrymple v. Dalrymple, 2 Haggard, 54 612 
 
 Dark; 2 Car. & K. 632 468 
 
lxii 
 
 TABLE QF OASES. 
 
 PASE 
 Davenport, Newcastle Spr. Ass. 1826 312 
 Davey, et al., 5 Esp. 21? 608 
 
 Davies's ease, 2 East, P. 0. 109 419 
 
 Davies v. Waters, 1 DowL N. C. 651 ; 11 
 
 Law J. 214 ex. 
 Davis, 7 Oar. & P. 785 
 Davis, 2 East, P. C. 499 
 Davis, 20 Law J. 207 ra 
 Davis, R. & Ry. 322 
 Davis, R. & Ry. 499 
 Davis, Sayer, 133 
 Davis v. Russell, 5 Ring. 354 
 Dawber et a)., 3 Stark 34 
 Dawson, 20 Law J. 102 m 
 Dawson et al., 5 St. Tr. 14 
 Day, 9Car.,& P. 722 
 Deacon, Ry. & M..N. P. O. 27 
 Deakin and Smith, 2 East, P. C. 653 
 De Berenger et al., 3 M. & S. 67 
 Deehy, Ry. & M. 393 ; 4 Car. & P. 579 
 Deely, R. & Ry. 303 ; 4 Car. & P. 579 
 Dent, 1 Car. & K. 249 
 Depardo, R. & Ry. 134 
 Derridgton, 2 Car. & P. 418 
 Dibby, 2 Car. & K. 818 
 Dickens, R. & Ry. 363 
 Dickinson, R. & Ry. 420 
 Dicks, MS. 1 Russ. 16 cit. 
 Dingley et al.,' 1 Car. & K. 637 
 Disting, 2 East, P. C. 767 
 Ditcher v. Kendrick, 1 Car. & P. 161 
 Dixon etux., 10 Mad. 335 
 Dixon's case, 1 East, P. C. 313 
 Dobb's case, 2 East, P. C. 513 
 Dodson, 20 Law J. 57 m 
 Doe v. Harris, 5 Car. &'P. 592 
 Doe v. Owen, 8 Car. & P. 110 
 Doe v. Ross, 7 Mees. &W. 102 
 Doe d. Avery v. Roe, 6 Dowl. 518 
 Dolby, 1 Car. & K. 238 
 Donolly's case, 2 East, P. C. 7.18 
 Dosset, 2 Car. & K. 306 120, 258, 505 
 
 Douglas, 1 Camp. 212 468 
 
 Douglas, Car- & M. 193 108 
 
 Douglas and Hall, 7 Car. & P. 644 298, 299 
 Douglas v. The Queen, 17 Law J. 177 m 179 
 Dowlin, 5 T. R. 311 598 
 
 Dowling, 12 Shaw's J. P. 678 154 
 
 Downing et al., 1 Den. C. 0. 52 97, 175, 176 
 Dowsell et al., 6 Car. & P. 398 
 Drake, 14 Shaw's J. P. 483 
 Draper, 1 Car. & K. 176 
 Driscoll, 1 Car. & M. 214 
 Duffin et al., R. & Ry. 365 
 Dunkely et al, Ry. & M. 90 
 Dunn, 1 Car. & K. 730 
 Dunn, 4 Car. & P. 543 
 Dunn and Smith, Ry. & M. 146 
 Dunn's case, 2 East, P. G. 962 
 Dunstan, Ry. AM. N. P. 0. 109 
 Dursley et al., 6 Car. & P. 399 
 Dyer and Disting, 2 East, P. C. 767 
 
 153 
 
 30, 240, 246, 247 
 334 
 
 80 
 331 
 332 
 1 
 
 26 
 154 
 559 
 484 
 315 
 173 
 358 
 617 
 610 
 
 79 
 468 
 
 06 
 
 128 
 
 169, 37Q 
 
 548 
 
 366 
 
 7 
 
 127, 128 
 
 479 
 
 138 
 
 7 
 
 248, 249 
 
 340 
 
 29 
 153 
 138 
 138 
 153 
 163 
 420 
 
 407 
 80 
 257 
 284 
 267 
 326,427,428 
 
 102, 593 
 126 
 
 361, 480 
 542 
 597 
 
 371, 479 
 479 
 
 Dyke, 8 Car. & P. 261 154 
 
 Dyson Post, R. & Ry. 101 535, 545 
 
 Dyson, R. & Ry. 523 252 
 
 E 
 
 Eastall, 2 Russ. 92 358 
 
 East Farleigh, 6 D. & R, 147 137 
 
 Eccles, 1 Leach, 274 . 616 
 Edmeads et al., 3 Car. & P. 390 , 246, 252 
 
 Edmunds, 4 B.& Aid-. 471 164 
 
 Edwards, 3 Car. & P. 390 30 
 
 Edwards et al., 5 Car. & P. 518 327 
 
 Edwards,, 6. Car. & P. 621 428 
 
 Edwards, 8 Car. & P. 611 209 
 Edwards, R. & Ry. 234, 3 Camp. 207, ; 172 
 
 Edwards, R. & Ry. 283, 611 
 
 Egerton, R. & Ry. 375, 420 
 
 Eggington, 2 Bos. & P. 508, 364 
 
 Elliott, 4 Car. & P. 592, 616,622 
 
 Ellis, 6 B. & C. 145, 122 
 
 Ellis, 2 Car. & K. 470, 220 
 
 Ellis, By. & M., N. P. C. 432, 127 
 
 Ellison and Vines, Ry. & M. 336, 487, 491 
 
 Else, Job & Sarah, R. &, Ry. 142, 574 
 
 Empson's case, 1 Leach, 247, 271 
 
 England et al., 1 Car. & K. 533, 487, 491 
 
 Enoch, 4 Car. & P! 539, 129 
 
 Enoch, 5 Id. 539, 211 
 
 Esop, 7 Car. & P. 456, 8 
 Esser's case, 2 -East, P. C. 1125 ; 2 Russ. 
 
 . 723, - '74 
 
 Evans et al, Car, & M. 298, 351 
 
 Evans, Car. & M. 632, 444 
 
 Evans, 1 Russ. 488, 2 L0 
 
 Evans, 5 Car. & P. 553, 466 
 
 Ewington, 1 Car. & M»319, 593 
 
 Eaderman et al., Law J. 147 m, 195 
 
 Fairman v. Ives, 5 B. St, A. 642, 320 
 
 Farley et al., 2 Car. & K. 313, 563 
 
 Farler, 8 Oar. & P, 106, 154 
 Parr's case, Eel. 43, S. Raym. 276, 336, 366 
 
 Parrel, 1 Leach, 266 n, ' 381, 422 
 
 Earrington, R. & Ry. 207, , 489 
 
 Tearnley, 1 T. R. 316, 115 
 
 Pellowes, 1 Car. & K. 115, 593 
 
 Pen wick, 2 Car. & K. 915, 115 
 Ferrer's (Lord) case, 19 How. St. Tr (1 947, 
 
 948, 4 
 
 Eewster et al., R. & Ry. 413, 377 
 
 Fidleret al , 4 Car. &.P. 449, , 502 
 
 Fieldhouse, Oowp. 325, . ' 99 
 
 Fielding, 2 Car. & K. 621, 22 
 Finaeane et al., 5 Oar. & P. 551, 289, 406 
 
 Fisherman's case, 2 East, 661, 367 
 
 Fitzgerald et al., 1 Oar. & K. 201, 167 
 
 Flaherty, 2 Car. & R. 782, , , 613 
 
 Flanagat), R. & Ry. 187, - 334, 434 
 
 Fleet, 1 B. & A. 179, 321 
 
 Fletcher, 2 Car. & K. 215, 490 
 
 Fletcher, 4 Car. & P. 545 385 
 
 Fletcher, R. & Ry. 58 186 
 
 Forbes, 7 Car. &, P. 224 537 
 Ford, R. & Ry. 329 26, 30, 243 
 
 Ford and Rust, Ry. & M. 183 332 
 
 Poster, R. k Ry. 512 360 
 
 Foster, R. & Ry. 459 593 
 
 Poster, Gill et al., R. & Ry. 413 377 
 
tableqf cases. 
 
 lxiii 
 
 219, 
 
 Fowls and Elliot, 4 Oar. & P. 692, 616 
 Fowler and Sexton, 4 B. k Aid. 273 
 Fox v. Gaunt, 3 B. & Ad. 798 
 Foxley,. 1 Salk. 266 
 Frampton, 2 Car. k K. 47 
 Francis, E. k Ry. 209 
 Francis et al., 2 Str. 1015 
 • Franks, 2 Leach, 736 
 Fraser, By. & M. 419 
 Fray| 1 East, P. C. 236 
 Frederick, and Tracey, 2 Str. 1095 
 Freeman, 5 Car. & P. 534 
 Freeman, 1 Russ. 518 
 Freeth, R. k Ry. 127- 
 French, R. & Ry. 491 
 Froud, R. & Ry. 389 
 Fry, K. k Ry. 482 
 Fuller, 1 Boa k P. 180 
 Fuller's case, 2 East, P. C. 497 
 Fuller, R. k Ry. 498 
 Fumival, R. & Ry. 445 
 
 PAGE 
 
 622 
 
 178 
 
 25, 27 
 
 200 
 
 393 
 
 543 
 
 418 
 
 573 
 
 266 
 
 228 
 
 ' 622 
 
 451 
 
 210 
 
 466, 556 
 
 336 
 
 561 
 
 89 
 
 96 
 
 335 
 
 420 
 
 329 
 
 359 
 626 
 410 
 19 Law J. 
 
 88, 356 
 
 93 
 
 305 
 
 606 
 
 244 
 
 327 
 199 
 345 
 468 
 126 
 405 
 
 G 
 
 Gaby, R. k Ry. 178 
 Gadbury, 8 Car. & P. 676 
 Gainer, 7 Car. k P. 231 
 Gallears, 2 Car. & K. 981 
 
 13 m. 
 Galloway, Ry. & M. 234 
 Gammon, 5 Car. & P. 321 
 Gardiner, 2 Moody, 95 
 Gardener, Ry. k M. 390 
 Gardner, 1 Car. k K. 628 
 Gardner, 2 Car. k K. 628 
 Gardner, 1 Car. & P. 479 
 Gargrave's case, Ro. Rep. 175 
 Garland, 1 Hawk. c. 38, s, 23 
 Garlick, 2 Car. &. K. 632,. 
 Garner, 2 Car. k K. 920, 18 Law J.lm 
 Garratt, et al., 6 Car. k P. 369 
 Garside, 2 Ad. k El. 266 182, 200, 203 
 
 Gascoigne's case, 2 East, P. C. 709 ; 1 
 
 Leach, 313 419 
 
 Gazard, 8 Car. & P. 595 605 
 
 Geach, 9 Car. k P. 499 164 
 
 George et al., Car. k M. Ill 153 
 
 George, Cowp. 13 2 
 
 George v. Thompson, 4 Dowl. 656 140 
 
 Gerrish, 2 Mo. & R. 219 574 
 
 Gibbons, 1 Car. & P. 97 129 
 
 Gibbons, Fost. 107 332 
 
 Gibbona and Kew, R. & Ry. 442 333, 338 
 Gibbon v. Pepper, 2 Salk. 638, 1 Ld. 
 
 Ray m. 38 . 10, 283 
 
 Gibson et al., 2 East, P. C. 508; 1 Leach, 
 
 357 339, 346 
 
 Gibson, 8 East, 112 115 
 
 Giddins et al., Car. & M. 634 66, 417 
 
 Gilbert et al., 1 Car. k K. 84 345 
 
 Gilbert, Ry. & M. 185 373 
 
 Giles, Ry. & M. 166 549 
 
 Gilham, Ry. k M. 186 128 
 
 Gill and Henry, 2 B. & Aid. 204 616 
 
 Gill, Joseph, Sum. Ass. York, 1829 326 
 
 Gill et al., R. k Ry. 413 377 
 
 GUlon, Ry. & M. 85 267 
 
 PAGE 
 
 Gilson, R. & Ry. 138 489 
 
 Gird wood's case, 1 Leach, 142, 169; 2 
 
 East, P. C. 1120 74,430 
 
 Glass, 2 Car. k K. 395 581 
 
 Glover, R. k Ry. 269 405, 410 
 
 Gnosil, 1 Car. & P. 304 418, 419 
 
 Goggerly and Whitford, R. k Ry. 343 12 
 Goldshed and Sidney, 1 Car. & K. 657 622 
 
 Goldthrope, Car. & M 335 
 Gooch, 8 Car. k P. 293 
 Good, Mary, 1 Car. & K. 185 
 Goodall, R. & Ry. 461 
 Goodbody, 8 Car. & P. 665 
 Goodohild, 2 Car. & K. 293 
 Goode, Car. & M 582 
 Goodfellow et al., 1 Car. & K.' 724 
 Goodfe'llow et al., Car. & M. 
 
 299 
 
 413 
 
 7, 8, 18 
 
 465 
 
 384 
 
 296 
 
 444, 451 
 
 409 
 
 569, 
 
 593, 599, 603 
 
 Gordon, Car. & M. 410 602 
 
 Gordon, 1 East, P. C. 352; 1 Leach, 515 
 
 14, 29 
 
 Gordon's case, 1 East, P. C. 315 241 
 
 Graham, 1 Leach, 82 194 
 
 Grant v. Astle, 2 Doug. 730 176 
 
 Gray's case, 1 Str. 481 331 
 
 Great North of England Railway Co., 11 
 
 Shaw's J. P. 21 9 
 
 Greatrix, 2 East, P. C. 675 ; 1 Leacb, 
 
 108 ' 374 
 
 Green, 7 Car. & P. 156 9,219 
 
 Green and Cowell, 2 East; P. C. 617 474, 478 
 
 Greenacre, 8 Car. & P. 35 
 Gregory,!' Car. & K. 228 
 Gregory, 10 Shaw's J. P. 262 
 
 580 1 Grey's case, Zel. 64 
 
 170 Grey et al., 2 East, P. C. 708 
 
 Grice, 7 Car. & P. 803 
 Griffin, R. & Ry. 150 
 Griffith, 1 Car. & P. 298 
 Griffiths, 8 Car. k P. 248 
 Grimwade, 1 Car. & K. 592 
 Groombridge, 7 Car. k P. 582 
 Grout, 6 Car. & P. 629 
 Grove, 7 Car. & P. 635 
 Guerchy, 1 W. Bl. 545 
 Gutteridges et al., Car. & P. 471 
 
 19, 254 
 
 180 
 
 79 
 
 218 
 
 ■418 
 
 408 
 
 130 
 
 261 
 
 264 
 
 325, 429 
 
 305 
 
 9, 219 
 
 457 
 
 8 
 
 148 
 
 Hailey, Ry. & M. 94 604 
 
 Haines, 2 Car. k K. 368, 220 
 
 Haines, 6 Car. k P. 176 370, 391, 399 
 
 Haines et al., R. & Ry. 451 330 
 
 Hall, 2 Car. & K. 947 . 375 
 
 Hall, 7 Car. k P. 644 298, 299 
 
 Hall, R. k Ry. 335 330 
 
 Hall, R. & Ry. 463 456, 458 
 
 Hall, Ry. k M. 474 451 
 
 Hallard's case, 2 East, P. C. 498 335 
 
 Halloway, 1 Car. k P. 127 69, 355, 357 
 
 Halloway's case, Cro. Car. 131, W. Jon. 
 
 198 227 
 
 Hamilton, 8 Car. & P. 49 432, 435 
 
 Hammon, R. & Ry. 221 445 
 
 Hammond and "Webb, 2 Esp. 719 620 
 
 Hampton, Ry. & M. 255 441 
 
 Handcock v. Baker, 2 Bos. & P. 260 29 
 
Lxiv 
 
 TABLE OP CASES. 
 
 PAGtE 
 Handley, Cr. & M. 541 365 
 
 Handley, ~W. k J., 5 Car. k P. 565 406 
 
 "Hanking, 2 Car. k K. 823 138, 153 
 
 Hannon, 9 Car. k P. 11, 14 555 
 
 Hans and Seott, 3 Burr. 1262 591 
 
 Hanail, 13 Shaw's J. P. 556 19 
 
 Hanson, 2 Car. k K. 912 1ST, 259 
 
 Hanway v. Boultbee, 1 Moody & R. 15 22 
 Harding et al., R. k Ry. 125 385 
 
 Hard wick, 11 East, 578 125 
 
 Hardy, 24 How St. Fr. 414, 572 170 
 
 Hargest v. Fothergill, 5. Car. & P. 303 140 
 Hargraves, 5 Car. & P. 170 249 
 
 Harley, 4 Car. k P. 369 256, 581, 582 
 
 Harley, Hannah, 1 Car. 4 K. 89 . 583 
 
 Harmau's case, 2 East, P. C. 736 ; Ro. 
 
 Rep. 154 ,- 1 Hale, 534 418 
 
 Harris, Car. k M. 661 496 
 
 Harris, 5 Car. k P. 159 273 
 
 Harris, 7 Car. & P. 446 261 
 
 Harris, 1 East, P. C. xviii. 272' 
 
 Harris, 2 Id. 496 334, 335 
 
 Harris and Lloyd, 1 Car. &K. 179 560 
 
 Harrison v. Hodgson, 10 B. k C. 445 283 
 Harrod, 2 Car. & K. 294 114 
 
 Hart, Minter, 6 Car. & P. 106 394, 423 
 
 Hart, Minter, 7 Car. & P. 652 ; Ry. k M. 
 
 486 537 
 
 Hartley, R. k Ry. 139 450 
 
 Harvey, 2 East, P. C. 669 ; 2 Leach, 523 374 
 Harvey, R. k Ry. 227 561 
 
 Haslam's case, 2 East, P. C. 782 477 
 
 Hassal et al., 2 Car. & P. 434 8 
 
 Hastings, 7 Car. & P. 152 154 
 
 Haughton, 5 Car. k P. 555, 559 487, 491, 524 
 Hawkes, 2 Moody, 60 553 
 
 Hawkins, 3 Car. k P. 392 251, 424 
 
 Hawkins's case, 2 East, P. C. 485 331 
 
 Hawkins, 2 Bast, P. C. 501 338 
 
 Hawkswood's case, 2 East, P. C. 955 553 
 Hawkswood. 2 T. R. 606 149 
 
 Haworth, 4 Car. k P. 254 139, 140, 555 
 Haynes, 4 M. k S. 214 91 
 
 Hayward, 2 Oar. k K. 234 563 
 
 Hayward, 6 Car. k P. 157 234 
 
 Hayward, R. 4 Ry. 78 260 
 
 Haywood, R. k Ry. 16 624 
 
 Hazy and Collins, 2 Car. k P. 458, 118 
 
 Headge, R. k Ry. 160, 452 
 
 Hearn, Car. k M. 109, 127, 132 
 
 Heath, 2 Mood. 38, 393 
 
 Helsham, 4 Car. k P. 394, 66 
 
 Hearing's case, 2 East, P. C. 115, 430 
 
 Hems, 7 Car. k P. 312, 30 
 
 Henderson et al., Car.* M. 328, 112, 464, 472 
 Henry, 2 B. & Aid. 204, 616 
 
 Hepper f Ry. k M. N. P. C. 210, 600 
 
 Hewett, Car. & M., 534, 126 
 
 Hewins, 9 Car. & P. 786, 599 
 
 Hey, 2 Car. & K. 983, 383 
 
 Hickman, 5 Car, & P. 151, 210 
 
 Hickman, 2 EaBt, P. C. 593, 1 Leach, 318, 412 
 Higgins, 2 East, 5, 19, 20 
 
 Higginson, 1 Car. & K. 129, 4 
 
 Higley, 4 Car. & P. 366, „ 299 
 
 Hilditch et al., 5 Car. k P. 299, 170 
 
 Hill, 2 Car. k P. 978. 478 
 
 Hill, 8 Car. * P. 274, 560 
 
 PAGE 
 
 Hill, 20, Law, J. 222 m, 151 
 
 Hill, R. k Ry. 190,i , 470 
 
 Hiim al., R. k Ry. 249, 548 
 
 Hind, R. & Ry. 253, 611 
 
 HmdmarSh, 2 Leach, 569, 208 
 
 Hinks et al„ 2 Car.,* X 462, 153, 155, 477 
 Hoatson, 2 Car. & K. 777, 545, 547 
 
 Hobbs. v. Brai'nscomb, .3 Camp. 420 , 26 
 
 Hobson, 1 East, P. C. xxiv, R. & Ry. 56, 70, 
 
 456. y ' 
 
 Hodges, 8 Car. & P. 195 5 
 
 Hodge's case, 1 Leach, 240 , 413 
 
 Hodges, Moody k M. '341 414, 41&, 507 
 
 Hodgson, R. k Ry. 211 ' '-■ 307 
 
 Hodgson, 3 Car. k P. 422 448, 455 
 
 Hoggins, R. & Ry. 145 453 
 
 Holden et al., R. k Ry. 154 550 
 
 Hollaway, 2 Car. k R. 942 376 
 
 Hollingberry, 4 B, & C. 329 620 
 
 Hollis, 2 Stark. 536 173, 473 
 
 Holmes, 1 Car. & K. 248 127 
 
 Holt, 7 Car. k P. 518 270, 273 
 
 Hood, Ry. & M. 281 30, 242 
 
 Hope, Ry. k M. 414 562 
 
 Hopkins,' Car. k M. 254 ,303 
 
 Hopkins, 8 Car. k P. 591 • 208 
 
 Hornby et al., 1 Car. & K. 305 12 
 
 Home, 2 Cowp. 672 600 
 
 Horwell; 6 Car. k" P. 148, Ry. & M. 405 535 
 Hough, R. & Ry. 120 122, -551 
 
 Houseman v. Roberts, 5 Car. & P. 394 140 
 Houseman, 8 Car. & P. 180 561 
 
 How, 2 Str. 699 89 
 
 How v. Hall, 14 East, 276 n . 137, 139, 555 . 
 Howarth, Ry. k M. 208 240, 266 
 
 Howes, 6 Car. & P. 404 130 
 
 H6we, 7 Car. k P. 268, 324,. 429 
 
 HoweU v. Jackson, 6 Car. & P. 723 284 
 
 Howell, 7 Car. k P. 325 384 
 
 Hoye v. Bush, 1 Man. k Gr.. 775 242 
 
 Hubson et al., 1 Bast, P. C. 258 217 
 
 Hudson. R. & Ry.. 72 549 
 
 Huggett's case, Kel. 59 248 
 
 Hoggins- et al, 2 Str. 882 209 
 
 Hughes, 1 Car. & K. 235 163, 210 
 
 Hughes, Mary, 1 Car. k K. 519 593 
 
 Hughes, Car. k M. 593; 2 East, P. C. 654 
 
 358 
 Hughes, 2 Car. &.P. 420 524 
 
 Hughes, 4 Car. k P. 373 590 
 
 Hughes, et al., 6 Car. k P. 129 27.2 
 
 Hughes, 9 Car. 752 305 
 
 Hughes, Ry. k M. 370 450 
 
 Hulton, 1 Ry. k M.. 78 109 
 
 Humphreys,. Car. & M. 601 99 
 
 Hungerlbrd's case, 2 East, P. C. 513 341 
 Hunt, 3 -B. A A. 566 589,620 
 
 Hunt, Ry. k M. 93 237, 266, 267 
 
 Hunter, 3 Car. & P. 591 138, 554 
 
 Hunter, 4 Car. k P. 128 138, 554 
 
 Hunter, Ry. k Ry. 511 555 
 
 Hyams, 7 Car. k. P. 441 330 
 
 Illidge, 2 Car. k K. 871 
 Inder, 2 Car. \K. 635 
 
 557 
 561 
 
TABLE OF CASES. 
 
 lxv 
 
 Isaacs v. Brand, 2 Stark. 161 
 
 PAGE 
 26 
 
 Jackson, 1 Car. & K. 384 456 
 
 Jackson, Ry. & M. 119 377 
 
 Jacobs, R. & Ry. 331 310 
 
 Jacobs, Ry. & M. 140 612 
 
 Jagga'r, 1 Car. & K 158 626 
 
 James 1 Car. & K. 303 487 
 
 James, 1 Car. & K. 530 273, 283 
 
 James et ah, 1 Car. & P. 322 156 
 
 James, 8 Car. & P. 131 510 
 
 James, 8 Id 292 557 
 
 Jarvis, 2 Mo. & R. 40 271 
 
 Jeans, 1 Car. & K 539 524 
 
 Jefferies and Smith, Ry. & Mo. N. P. 0. 
 
 295 69, 361 
 
 Jekyll v. Sir John Moore, 2 New Rep. 
 
 341 ; 1 Russ. 224 321 
 
 Jellyman, 8 Car. & P. 634 310 
 
 Jenkins et al, 1 Car. & K 536 98 
 
 Jenkins et al., R. & Ry. 244 336 
 
 Jenkins, R. & Ry. 492 131 
 
 Jenson, Ry. & M. 434 451 
 
 Jervis, 6 Car. & P. 156 474 
 
 Jervis and Walker, Ry. & M. 7 337 
 
 Jobling, R. & Ry. 525 337 
 
 John's case, 1 East, P. C. 357 140 
 
 Johnson, 2 Car. &K. 354 167 
 
 Johnson's case, 2 East, P. C. 488 331 
 
 Johnson et al., Ry. & M. 173 188 
 
 Johnson and Jones, Car. & M. 218 338 
 
 Johnson v. Lee, 6 Taunt. 246 244 
 
 Jones 2 B. & Ad. 611 119 
 
 Jones, 4 B. & Ad. 345 617 
 
 Jones, 2 Camp. 131 136, 154 
 
 Jones, 1 Car. & K. 181 509 
 
 Jones et al., 2 Car. & K. 165 68, 208, 482 
 Jones, Eliz. 2 Car. & K. 236 582 
 
 Jones, 2 Car. & K. 398 325, 429 
 
 Jones, 2 Car. & K. 524 143 
 
 Jones, Car. &M. 218 
 Jones, Car. & M. 611 
 Jones, Thomas, Car. & M. 614 
 Jones, 4 Car. & P. 217 
 Jones, 7 Car. & P. 833 
 Jones, Lloyd, 8 Car. & P. 288 
 Jones and Longman, 2 East, P. C. 499 
 Jones's case, 2 East, P. C. 504; 1 Leach, 
 
 607 
 Jones et al., 2 East, P. C. 669 ; 2 Leach, 
 
 698 
 Jones's ease, 2 East, P. C. 883 
 Jones's case, 2 Id. 941 
 Jones, 19 Law J. 162 m 
 Jones, 2 Russ. 84 
 Jones, R. & Ry. 151 
 Jones et al., R. & Ry. 305 
 Jordan, 7 Car. & P. 432 
 Jordan, 9 Car. & P. 118 
 Jordan, 9 Car. & P. 366 
 
 Kelly, R. &Ry. 421 
 Kerr, 8 Car. & P. 116 
 Kessal, 1 Car. k P. 437 
 Kew, R. & Ry. 442 
 Key, 21 Law J. 35 m 
 King, 5 Car. & P. 123 
 
 332 
 445 
 614 
 433 
 456 
 457 
 334 
 
 339 
 
 378 
 
 553 
 
 558 
 
 70, 469 
 
 363 
 
 131 
 
 378 
 
 12, 330, 338 
 
 305 
 
 3 
 
 K 
 
 Kealey, 20 Law J. 57 m 
 Kelley, 2 Car. & K. 815 
 
 470 
 233 
 
 PAGE 
 12 
 , 389 
 224, 230 
 333, 338 
 626 
 539 
 King, 1 Dow. & Low. 13 Law J. 43 m 404 
 King, R. & Ry. 332, 12, 18 
 
 Kingston, 4 Car. & P. 387 126 
 
 Kinloch, Alex, and Charle'S, Eost. 16, 1 
 
 "Wils. 157 173 
 
 Kinnear, 2 B. & Aid. 462 170 
 
 Kinnear, 2 Mo. & R. 117 556 
 
 Kinnersley, 1 W. Bl. 294 319 
 
 Kitchen, R. & Ry. 95 276 
 
 Knewland and "Wood, 2 East, P. C. 732 421 
 Knight et ux., 1 Car. & P. 1 16 8 
 
 Knight etal., 2 East, P. C. 510 340, 365 
 Knill, 5 B. & A. 929 n. 606 
 
 Kroehl et al., 2 Stark. 343 622 
 
 Lacon v. Higgins, 3 Stark. 178 612, 614 
 Lafone et al., 5 Esp. 155 622 
 
 Lamb's case, 2 East, P. 0. 664 389 
 
 Lane v. Goodwin, 12 Law J. 157 qb. 611 
 Langbridge, 2 Car. & K. 975 148 
 
 Langden, R. & Ry. 228 232, 253 
 
 Langford et al., Car. & M. 602 496 
 
 Lapier, 2 East,, P. C. 657 ; 1 Leach, 360 
 
 380, 419, 422 
 Large et al., Car. & M. 260 n. . 577 
 
 Laugher, 2 Car. & K. 225 129 
 
 Lavender's case, 2 East, P. C. 566 387, 443 
 Lawes et al., 1 Car. & K. 62 348 
 
 Lawrence v. Hedger, 3 Taunt. 14 26 
 
 Lawrence and Weaver, 4 Car. & P. 231 343 
 Layer, 16 How. St. Tr. 94, 99, 129 109 
 
 Leach, 3 Stark. N. P. C. 70 451 
 
 Leeds v. Cook, 4 Esp. 256 138 
 
 Leefe, 2 Camp. 134 " 604 
 
 Ledwith v. Catchpole, Cald. 291 26 
 
 Leicestershire, JJ. of, 1 M. & S. 442 186 
 
 Leigh, 2 East, P. C. 694 382 
 
 Leonard, 2 Car. & K. 514 472 
 
 Levy, 4 Car. & P. 241 383 
 
 Lewin v. Edwards, 1 Dowl. N. C. 639 176 
 Lewis, 1 Car. &K. 419 284 
 
 Lewis, 2 Car. & P. 628 330 
 
 Lewis, 6 Car. & P. 161 126, 256 
 
 273, 274 
 305 
 346 
 5 
 560 
 128 
 429 
 608 
 244 
 407 
 622 
 614 
 199 
 29, 222 
 334 
 379 
 
 Lewis, 9 Car. & P. 523 
 
 Lines, 1 Car. & K. 393 
 
 Lithgo, R. & Ry. 357 
 
 Little, R. & Ry. 430 
 
 Lloyd and Harris, 1 Car. & K. 179 
 
 Lloyd, 6 Car. &P. 393 
 
 Lloyd's case, 2 East, P. C. 1122 
 
 Lloyd, 4 Esp. 200 • 
 
 Lloyd v. Sandilands, 2 Moore, 207 
 
 Locke,t; .7 Car. & P. 300 
 
 Locky.er et al., 6 Esp. 107 
 
 Lolley, R. & Ry. 237 
 
 Long's case, Cro. Eliz. 489 
 
 Longden, R.& Ry. 228 
 
 Longman et al., 2 East, P. C. 499 
 
 Longstreeth, R. & M. 137 
 
Lxvi 
 
 TABLE OF CASES. 
 
 PAOE 
 92 
 400 
 271 
 234 
 479 
 335 
 
 Lookup, 3 Burr. 1901 
 
 Loom etat., By. & M. 1G9 
 
 Lovell, 2 Mo. & E. 39 
 
 Lynch, 5 Car, & P. 324 
 
 Lyons, Car. & M. 217 
 
 Lyons and Miller, 2 East, P. C. 497 
 
 M 
 
 Macartby, Car. & M. 625 . 166 
 
 M'Clarens, 13 Shaw's J. P. 343 6 
 
 McConnell et al., 1 Car. & K. 371 561 
 
 MeCully, 2 Moody, 34 400 
 
 Macdaniel, 1 East, P. C. 333 211 
 
 MacDaniel et al., Post. 121, 253, 365 
 
 M'Dermott, E. & Ey. 356, 260 
 
 MeDougal v. Claridge, 1 Camp. 267, 320 
 McGregor, E. & Ey. 23, 448 
 
 McGrowtber's case, Post. 13, 9 St. Tr. 566, 10 
 Mcintosh's case, 2 East, P. O. 942, 560 
 
 McLaughlin, 8 Oar. ft P. 635, 261 
 
 McNamarra, E. & Ey. 342, 563 
 
 MeNamee, E. & M. 368, 383 
 
 McNaughten's case, 1 Car. & K. 130 n, 4 
 McPhane et al., Oar. & M, 212, 97, 262 
 
 McEue, 8 Car. & P. 641, 305 
 
 McWilliams, 8 Oar. ft P. 286, 305 
 
 Mackerel, 4 Car. & P. 448, 502 
 
 Maddox, E. & Ey. 92, 385, 438, 439, 440 
 Madge, 9 Car. & P. 29, ' 69 
 
 Mann, 4 M & S. 337, 177 
 
 Manning, Maria, 2 Car. & K. 887, 19 Law 
 
 J. 1 m, 159 
 
 Mansfield, Car. & M. 140, 89, 125, 356, 480 
 March et al., 1 Car. & K. 496, 286 
 
 March, Eliza, Ey. & M. 182 
 Marcus, 2 Car. & K. 356 547 
 
 Margetts et al., 2 Leach, 930 337 
 
 Marney's case, 1 Hawk. c. 45, s. 13 413 
 Marriott, 8 Car. ft P. 425 214 
 
 Marriott, 8 Car. & P. 600 210 
 
 Marsden, 4 M. & S. 164 316 
 
 Marsden, E. & Ey. 470 368 
 
 Marsh, 19 Law J. 12 m. 472 
 
 Marshall et al., Car. & M. 147 148 
 
 Marshall, E. & Ey. 75 542 
 
 Martin et ex., Ad. ft EL, 481 179 
 
 Martin, 2 Car. & K. 950 195, 476 
 
 Martin, 3 Car. & P. 211 209 
 
 Martin v. Shoppee, 3 Car. & P. 373 283 
 
 Martin, 5 Car. & P. 128 210 
 
 Martin et al., 6 Car. & P. 396 13 
 
 Martin, 9 Car. & P. 213 313, 315 
 
 Martin, 1 Leach, 171 363 
 
 Martin et al., E. & E. 108 333 
 
 Martin, Ey. & M 483 661 
 
 Mason's case, Post. 132; 1 Hawk. c. 31, 
 
 S. 26 213, 235 
 
 Mason, E. &, Ey. 419 419 
 
 Mason, 2 T. E. 531 464 
 
 Masters, 2 Car. & K. 930 195, 454 
 
 Mastin, 6 Oar. & P. 396 9, 219, 220, 251 
 
 Matthews v. Biddulph, 11 Law J. 13 m. 25 
 Matthews et al., 14 Shaw's J. P. 399 6 
 
 Matts, 7 Car. & P. 458 66 
 
 Mawbey et al., 6 T. E. 619 618 
 
 Mawbey, 6 T. E. 638 177. 
 
 Mawgridge's case, Fost. 295, KeL 128 230 
 
 PAGE 
 
 Mayhew, 6 Car. & P. 315 60 5 
 
 Maynard's case, 2 East, P. C. 601 338 
 
 May ward, E. & Ey. 240 298 
 
 Meadham, 2 Car. & K. 633 22 
 
 Meadows, 1 Car ft K. 399 302 
 
 Mears and Chalk, 20 Law J. 59 m 304 
 
 Medley et al., 6 Car. & P. 292 608 
 
 Meek, 9 Car. & P. 513 598 
 
 Mellish, E. & Ey. 80 449, 454 
 
 Mellor, 2 Dowl. 173 406 
 
 Menee, Car. 4 M. 234 581 
 
 Merceron, 2 Stark. 366 128 
 
 Mercier, 1 Leach, 183 109 
 
 Merriman v. Hundred of Chippenham, 2 
 
 East, P. C. 709 422 
 
 Merry, v. Green et al., 10 Law J. 154 m., 
 
 7 Mees. & "W. 623 390 
 
 Messingham, M. & J., Ey. & M. 257 481 
 
 Metcalfe, Ey. & M. 433 393 
 
 Michael, Catherine, 9 Car. ft P. 356 211 
 
 Middlesex, JJ. of, 5 B. & Ad. 1113 113 
 
 Millar, 7 Car. & P. 665 69, 413 
 
 Millard, E. &Ey.' 245 552 
 
 Miller, 2 East P. 0. 497 335 
 
 Miller's case, 3 Wils. 427, 2 W. Bl. 881 596 
 Mills, 6 Car. & P. 146 126 
 
 Mills v. Oddy, 6 Car. & P. 730 138 
 
 Milne, 2 B. ft Ad. 606 n 168 
 
 Milner,, 2 Car. & K. 310 64, 74 
 
 Milner, 14 Shaw's J. P. 449 579 
 
 Milton, Mo., k M. 107 284 
 
 Minter Hart, 6 Car. ft P. 106 394, 423 
 
 Mitchell, 2 Q. B. 636 179 
 
 Moffatt's case, 2 East, P. C. 954 556 
 
 Mole, 1 Car. ft K. 417 390 
 
 Monkhouse, 14 Shaw's J. P. 115 6 
 
 Mooney and Clayton, 1 Car. & K. 128 96 
 Moore, 3 B. ft Ad. 184 608 
 
 Moore, 2 Car. ft P. 235 122 
 
 Moore, 2 East, P. C. 679 377 
 
 Moores et al., 7 Car. & P. 270 154 
 
 Morfit et al., E. ft Ey. 307 365 
 
 Moriarty v. Brooks, 6 Car. & P. 684 284 
 
 Morris, 9 Car. & P. 89 396 
 
 Morris, 1 Leach, 103 9 1 
 
 Morris, Sarah and John, E. & Ey. 270' 6, 550 
 Morris T. Miller, 4 Burr. 2057, 1 "W. Bl. 
 
 632 613 
 
 Morton's case, 2 East, P. C. 965 553 
 
 Morton, 4 M. & S. 48 137 
 
 Mountford, Ey. & M. 441, 7 Car. & P 
 
 232 280 
 
 Mucklow, Ey. & M. 160 367, 382 
 
 Mullens, 12 Shaw's J. P. 776 154 
 
 Munoz, 2 Str. 1127 89, 464 
 
 Murphy, 6 Car. & P. 103 12, 236, 249 
 
 Murray and Harris, 2 East, P. C. 496 334 
 Murray, Ey. & M. 276 452 
 
 N. 
 
 Nailer, Fost. 278 224 
 
 Nash and Bird, 2 Car. &, K. SlT 298 
 
 Nashet al., E. ft Ey. 386 409 
 
 Neal, 1 Car. & K. 591, 1 Den. 36- 313 
 
 Neal et al., 7 Car. & P. 168 154 
 
 Nettleton, Ey. & M. 259 455 
 
TABLE OF OASES. 
 
 lxvii 
 
 PAGE 
 
 608 
 
 '608 
 
 590, 604 
 
 172 
 
 336 
 
 309, 314 
 
 166 
 
 623 
 
 C. 669, 2 
 
 378 
 377 
 26 
 352 
 447 
 154 
 418 
 455 
 511 
 464 
 79, 339 360 
 334 
 
 364, 
 
 Nsville, Bartholomew, Peake, 125 
 Seville, Samuel, Peak, 126 
 Newton, 1 Car. & K. 469 
 Fewton, 13 Shaw's J. P. 666 
 > ibbs, R. & Ry. 517 
 1 iohol, R. & Ry. 130 
 Nicholas, 2 Car. & K. 246 
 Nicholls, 2 Str. 1227 
 Nicholson et al., 2 East, P. 
 
 Leacb, 698 
 Nicholson et al., R. & Ry. 413 
 Nicholson v. Hardwick, 5 Car. & P. 495 
 Nixon and Scroop, 7 Car. & P. 442 
 Noake, 2 Car. & K. 620 
 Noakes, 5 Car. & P. 326 
 Norden's case, Post. 129 
 Norman, 1 Car. & K. 501 
 Norris, 9 Car. & P. 241 
 Norton, 8 Car. & P. 196 
 Norton, R & Ry. 510 
 Nutbrown's case, Post, 76 
 
 O 
 
 Oates, Ry. & M. 175 
 O'Brien et al., 2 Car. & K. 115 
 O'Brien et al., IDen. C. C. 9 
 O'Connell's case, Ho. Lords, 1844 
 O'Connor etal., 13 Law J. 33 m. 5 Q. 
 
 B. 16 
 Oddy, 20 Law J. 198 m 
 Offord, 5 Car,& P. 168 
 O'Flanagan et al., R. & Rv. 368 
 Oliver, 4 Taunt. 474, 2 Leach, 1072 
 Oneby's case, 2 Str. 766, 2 Ld. Raym. 
 
 1485 
 Osborne, Car. & M. 622 
 Osborne, 8 Car. & P. 113 
 Oswestry, 12 Shaw's J. P. 73 
 Overton, Car. & M. 655 
 Owen's case. 2 East, P. C. 645 
 Owen, Ry. & M. 96 
 Owen etal., Ry. & U. 118 
 Owens, Ry. & M. 205 
 Oxford, 9 Car. & P. 525 
 Oxfordshire, Inhabitants of, 12 East, 
 411 
 
 PAGE 
 Parks, 2 East, P. C. 671, 2 Leach, 703 375 
 Parratt, 4 Car. & P. 570 126 
 
 Parrot, 6 Car. & P. 402 487, 491 
 
 188 
 
 14 
 
 176 
 
 176 
 
 179 
 
 480 
 
 4 
 
 409 
 
 376 
 
 234 
 306 
 148 
 191 
 597 
 
 Partridge, 7 Car. & P. 551 
 
 Partridge v. Coat<S,-%. & M. 156 
 
 Passey, 7 Car. & P. 282 
 
 Patch, 2 East, P. C. 678, 1 Leach, 238 
 
 Pateman, R. & Ry. 455 
 
 Patience, 7 Car. & P. 775 
 
 Patram's case, 2 East, P. C. 782 
 
 Payne et al., 4 Car. & P. 558 
 
 Payne, Ry. & M. 378 
 
 Peace, 3 B.& Aid. 579 
 
 Peacock, R. & Ry. 178 
 
 Pear's case, 2 East, P. 
 
 253 
 Pearson, 4 Car. & P. 572 
 Pearson, 8 Car. & P. 439 
 Peat, 2 East, P. C. 557 
 Pedly, 1 Ad. & El. 822 
 Pedley, 1 Leach, 325 
 Pegg et al., 5 Car & P. 549 
 Peltier, Stark, on Libel, 218 
 Pemberton, 1 W. Bl. 230 
 Perkes, 1 Car. & P. 300 
 Perrot, 2 M. & S. 379 
 Perry, 1 Car. &.K. 725 
 Petert, 1 Car. & K. 245 
 Phelps et al., Car. & M. 180 
 
 Phelps, 1 Russ. 534 
 
 Philip, Rv. & M. 263 
 
 Philips, 8Car.& P. 736 
 
 Phillips, 3 Camp. 74 
 
 Phillips et al., 2 East, P. C, 
 
 Phillips etal., 2 Str., 921 
 
 Philpotts, 1 Car.&K. 112 
 
 Phipoe, 2 East, P. 0. 599, 2 Leach, 774, 
 
 423, 428 
 
 370 
 
 138 
 
 407 
 
 377 
 
 653 
 
 241 
 
 477 
 
 260 
 
 30, 240, 246 
 
 79 
 
 544 
 
 685, 1 Leach, 
 
 382 
 
 579 
 
 593 
 
 423 
 
 608, 609 
 
 596 
 
 410 
 
 319 
 
 118 
 
 330, 332 
 
 464 
 
 364, 393, 394, 471 
 
 390 
 
 13, 22, 27, 
 
 30, 115 
 
 238 
 
 526, 528 
 
 305 
 
 296 
 
 662, 366, 399 
 
 602 
 
 464, 472 
 
 Picket's case, 2 East, P. C. 501 
 Pickford, 4 Car. & P. 227 
 435 Piddlehinton, 3 B. & A. 460 
 12 'Pike. 3 Car. & P. 598 
 
 653 
 
 325, 
 
 Packard et al., Car. & M. 236 
 
 Packer's case, 2 E ist, P. C. 
 
 Paddle, R. k Ry. 481 
 
 Paice, 1 Car. & K. 73 
 
 Palache's case, 1 llo. Rep. 175 
 
 Palmer, Moody & M. 70 
 
 Palmer and Hudson, R. & Ry. 72 
 
 Paradice, 2 East, P. C. 565 
 
 Parker, Car. <fc M. 639 
 
 Parker. 7 Car. & P. 825 
 
 Parker, 9 Car. & P. 45 
 
 Parker, 11 Law J. 102 m. 
 
 Parker, v. MeWilliam, 6 Bing. 683 
 
 Parkes, and Brown, 2 East, P. C. 963 
 
 Parkin, Ry. & M. 45 
 
 Parkins, Ry. & M. N. P. C. 166 
 
 408 Pinney, 3 B. & Ad. 947 
 524 Pippet v. Hearn, 5 B. & A. 634 
 4 Pitman, 2 Car. & P. 423, 379, 280 
 Pitts, Car. & M. 284 
 177 Piummer, 1 Car. & K. 600 
 Plummer's case, Kel. 109 
 Pollman et al., 2 Camp. 231 
 Pollock, MS. 1814 
 
 Pomeroy v. Baddeley, Ry. & M. N. P. C. 
 209, 215, 239 430 
 
 358 Pope, 6 Car. & P. 346 
 326, 429 Porter, 9 B. & O. 593 
 
 490 Post, Dyson, R. & Ry. 101 535, 
 
 483 1 Potter, 20 Law J. 170 m 
 409, Poulton, 5 Car. & P. 329 
 549 Powell, 2 B ■& Ad. 75 
 387, 443; Powell, Car. & M. 500 
 600, 605 Powell, 1 Str. 8 
 
 407 Powlcs, 4 Car. & P. 571 
 486 Praed, 4 Burr. 2256 
 ' 616 Pratley, 5 Car. & P. 553 
 167 Pratt, Ry. & M. 250 
 550 ! Preston et ah, R. & Ry. 368 
 
 69 
 1691 
 
 338 
 430 
 137 
 141 
 24 
 593 
 398 
 210 
 214 
 251 
 619 
 150 
 
 167 
 389 
 237 
 545 
 350 
 211 
 
 93 
 170 
 
 88 
 258 
 177 
 385 
 373 
 409 
 
lxviii 
 
 TABLE OF CASES. 
 
 Preston-upon-the-Hill, Burr. S. 0. IT, 2 
 
 Str. 1040 in 
 
 Price et al., 5 Car. & P. 510 495 
 
 Price, 7 Car. & P. 178 , 22, 247 
 
 Price, 8 Car. & P. 19 . "• 6 
 
 Price, 8 Car. & P. 882 237 
 Prince, Moody & M. 21, 2 Oar. & P. 517 460 
 
 Privett et al., 2 Car. &. K. 114 365 
 
 Prosser's case, 2 East, P. C. 502 338 
 
 Prowes, Ry. & M. 349 69 
 
 Puckering, Ry. & M. 242 356 
 
 Puddifoot, Ry. & M. 247 400 
 
 Pugh v. Griffith, 7 Ad. & El. 836 330 
 
 Pulbrook, 9 Car. & P. 37 558 
 
 Purchase, Car. & M. 617 447 
 
 Pywell, 1 Stark. N. P. C. 402 470, 618 
 
 Queen's case, 2 Brod. &. B. 302 620 
 
 PAGH 
 80 
 
 347 
 266 
 330 
 575 
 
 R 
 
 503 
 
 Raake, 8 Car. & P. 626 560 
 
 Radbourrte's case, 1 East, P. C. 356 141 
 
 Radcliffe, 1 W. Bl. 3. 170 
 
 Radford, 1 Car, & K. 707 548, 562 
 
 Radley, 2 Car. & K. 974 358 
 
 Randall, R. & Ry. 195 552 
 
 Ratcliffe, 1 W. Bl. 3 108, 163 
 
 Rathboue, Car. & M. 220 580 
 
 Ravenscroft, R. & Ry. 161 553, 560 
 
 Rawlins et al., 7 Car. & P. 150, 2 East, 
 
 P. O. 500 
 Rawlins, 8 Car. & P. 439 
 Read et al., 2 Car. & K. 957 
 Reader, Ry. & M. 239 
 Reading, 7 How. St. Tr. 264, 
 Reed et ux. Car. & M. 306 
 Reed, John, 8 Oar. & P. 623 
 Rees, 6 Car. & P. 606 
 Reed v. Norman, 8 Car. & P. 65 
 Reeves, 9 Car. & P. 25 
 Regan, 14 Shaw's J. P. 467 
 Remnant, R. & Ry. 136 
 Rew's case, Kel. 26 
 Reynell, 6 East, 315 
 Rice's case, Cro. Jac. 404 
 Richards 1 Car. & K. 532 
 Richards, 5 Car. & P. 318 
 Richards, MS. Tr. 1828 
 Richards, R. & Ry. 193 
 Ridley, R. & Ry. 515 
 Risborough, 11 Shaw's J. P. 280 
 Robb v. Starkey, 2 Car. & K. 143 
 Robe, 2 Str. 999 
 Roberts, 2 Car. & K. 607 
 Roberts, Car. & M. 652 
 Roberts alias Chambers, 2 East, P. C. 
 
 487 330 
 
 Roberts et al., 1 Camp. 399 620 
 
 Roberts, 7 Car. &, P. 485 358 
 
 Robins, 1 Car. & K. 456 303 
 
 Robinson's case, 2 East, P. C. 565, 387, 443 
 
 Robinson, Holt, 595 
 
 Robinson, R. & Ry. 521 
 
 Robinson, 2 Stark. Ev. 693 n. 
 
 Robinson, et al., Ry. & M. 327 
 
 Robinson, Ry. & M. 413 
 
 Robinson and Taylor, 2 East, P. 1010, 
 
 1 Leach, 44 ' 617 
 
 Roderick, 7 Car. & P. 795 20 
 Rodgers and Large, Car. & M. 260 n 577 
 
 Redway, 9 Car. & P. 784 393 
 Rogers, 2 Camp. 654 • 118 
 
 Rogers, 8 Car. & P. 629 541 
 
 Rogers, 9 Id. 41 560 
 
 Roger's case, 2 East, P. C. 506 338 
 
 Roger's case, Post. 311 239 
 
 Rosenberg, 1 Car. & E. 233 368 
 
 Rosinski, Ry. & M. 19 315 
 Ross Carney, Ry. & M. 351 ' 558 
 
 Row, R. & Ry. 153 128 
 Rowland et al., Ry. & M. N. P. C. 401 153 
 
 Rowly's case, 12 Co. 87 228 
 
 Ruddick, 8 Car. & P. 237 358 
 
 Rushworth, R. & Ry. 317 561 
 
 Russell, Car. & M. 541 486 
 
 Russell, Ry. & M. 37 330 
 Russen v. Lucas, 1 Car. & P. 153 28, 33 
 
 Rustv. Ford, Ry. & M. 183 332 
 
 Ruston, 1 Leach, 408 150 
 
 Ryan, 2 Mo.. & R. 213 256 
 
 337 
 593 
 315 
 504 
 163 
 390 
 563 
 579 
 614 
 212 
 489 
 358 
 210 
 177 
 198 
 375 
 130 
 188 
 553, 560 
 406 
 128 
 138 
 89 
 005 
 558 
 
 Robinson's case, 2 
 Leach, 8t9 ' 
 
 East, P. C. 1110, 2 
 
 430 
 
 S 
 
 Sainsbury, 4 T. R. 451 1 
 
 Saint Asaph, Dean of, 3 T. R. 428 n 322 
 
 St. Faith's, Newton, 3 D. & Ry. 348 611 
 
 St. George, 9 Gar. & P. 483 ' 274 
 
 St. John Long, 4 Car. & P. 398, 423 9, 220 
 
 Salamans, 1 T. R. 149 194 
 
 Salisbury, 5 Car. & P. 155 579 
 
 Salisbury et al, Plowd. 97. 253 
 
 Salmon, R. & Ry. 26 504 
 
 Salter et al., 5 Esp. 125 621 
 
 Samuel v. Payne et al., Doug. 359 26 
 
 Sandys et al.,' Oar. & M. 345 126 
 
 Sansome, 19 Law J. 143 m 
 
 Saunders, 7 Car. & P. 277 
 
 Saunders, 8 Car. & P. 265 
 
 Saunders, Id. 79 
 
 Savage et al., 1 Car. & K. 75 
 
 Savage, Ann, 6 Car. & P. 143 
 
 Savage, Ry. & M. 51 
 
 Sawyer, 2 Car. & K. 101 
 
 Sawyer's case, 1 Russ. 485 
 
 Scalbert, 2 Leach, 620 
 
 Scarborough, 12 Shaw's J. P. 265 
 
 Scott and Hans, 3 Burr. 1262 
 
 Scott, 1 Leach, 401 
 
 Scott etal., 4 East, 170 72. 
 
 Scott, R.&Ry. 415 
 
 Scott et al. v. Jones, 4 Taunt. 868 
 
 Scroop et al., 7 Car. & P. 442 
 
 Scully, 1 Car. & P. 3 19 
 
 Searing, R. & Ry. 350 
 
 Sefton, R. & Ry. 202 
 
 Self's case, 1 East, P. C. 226 
 
 Sellis, 7 Car. & P. 850 
 
 43, 44, 132, 133 
 209 
 
 305 
 349 
 166 
 372 
 164 
 
 66 
 211 
 172 
 207 
 591 
 114 
 619 
 
 92 
 139 
 352 
 226 
 363 
 338 
 209 
 211 
 
 618, 
 
TABLE OE CASES. 
 
 lxix 
 
 PAGE 
 
 Semple's (Major) case, 2 East, P. 0. 691 ; 
 
 2 Leach, 470 . 383 
 
 Senior, Ry. & M. 346 242 
 
 Serva et al. 2 Car. & K. 53 67, 208 
 
 Serva. 1 Den. C. 0. 104 483 
 
 Seward et al, 1 Ad. & El. 706 617 
 
 Sexton etal, 4 B.& Aid. 273 178 
 
 Shadbolt, 5 Car. & P. 504 261 
 Sharplessand Greatrix, 2 East, P. C. 675 ; 
 
 1 Leach,-'10S 374 
 
 Shaw, 6 Car. So P. 372 232 
 
 Shawe, 5 M. & S. 403 66 
 
 Sheard, 7 Car. & P. 846 261 
 Slieppard, 2 East, P. C. 967 ; 1 Leach, 
 
 265 638, 550 
 
 Shrimpton, 21 Law J. 37 m 626 
 
 Shuttleworth, 21 Law J. 36 m 624, 625 
 
 Sidney and Goldshed, 1 Car. & K. 657 622 
 
 Silk, alias Davis, 2 East, P. C. 499 334 
 
 Sills et al, 1 Car. & K. 494 152 
 
 Silverton, 1 Wils. 298 177 
 
 Simmons, 1 Wils. 329 177 
 
 Siramsv. Kitchen, 5 Esp. 46 140 
 
 Simons, 2 East, P. C. 712 422 
 
 Simons, 2 East, P. C. 731 420 
 
 Simonsto, Car. & M. 164 613 
 
 Simpson et al, Car. & M. 669 496 
 
 Simpson, 14 Shaw's J. P. 449 579 
 Sinclair v. Stephenson, 2 Bing. 514; 1 
 
 Car. & P. 582 138 
 
 Skerrett, P. & E. 2 Car. & P. 427 574 
 
 Skiller, 9 Shaw's J. P. 314 154 
 
 Smith et al., 8 B. & C. 341 142, 618 
 
 Smith, Francis, 1 Car. & K. 423 444 
 
 Smith, 1 Car. & E. 700 559 
 
 Smith, 2 Car. &K. 208 168, 370 
 
 Smith, 2 Car. & E. 882 196, 430 
 
 Smith, 2 Car. & P. 633 552 
 
 Smith, 4 Car. & P. 411 552 
 
 Smith, 4 Car. & P. 569 ' 526 
 
 Smith, Mary, 6 Car. & P. 151 80 
 Smith, George and Ann, 7 Car. &P. 147 359 
 
 Smith, 8 Car. & P. 173 261 
 
 Smith, 2 East, P. C. 497 334 
 
 Smith, Mo. & R. 256 335 
 Smith, Elizabeth, R. & Ry. 267 449, 452, 456 
 
 Smith, R. & Ry. 339 148 
 
 Smith et al.. R. & Ry.'368 409 
 
 Smith, R. & Ry. 417 330, 333 
 
 Smith, R. & Ry. 516 453 
 
 Smith, 1 Russ. 459 29 
 
 Smith, Ry. & M. 146 361, 480 
 
 Smith, Ry. & M. 178 330 
 Smith and Jefferies, Ry. & Mo. N. P. C. 
 
 295 69, 361 
 
 Smith, Ry.& M. 473 : J .82 
 
 Smythies. 19 Law J. 31 m 72, 74, 546 
 
 Snow, 1 Leach, 151 218, 231 
 
 Soares et al., R. & Ry. 25 549 
 
 Southern, R & Ry. 444 409 
 
 Spear's case, 2 East, P. C. 568 443 
 
 Spence, 1 Car. & K. 699 400 
 
 Spencer's case. 2 East, P. C. 712 422 
 
 Spencer and Warren, 6 Car. & P. 355 n 351 
 
 Spencer etal., 1 Car. & K. 159 624 
 
 Spencer, 3 Car. & P. 420 466 
 
 Spencer, R. & Ry. 299 4&0 
 
 Spicer, 1 Car. & K. 699 88, 356 
 
 Ppiller, 5 Car. & P. 333 ' 
 Springs, 1 M. & Rob. 357 
 .' quire et ux. 1 Russ. 16, 426 
 Squire, R. & Ry. 349 
 k-'tack, R. & Ry, 185 
 Stallion, Ry. & M. 398 
 Standley et al., R. & Ry.305 
 Stanley's (Sir Chas.) case, Kel. 87 
 
 iriton, 7 Car. & P. 431 
 Stanton, 1 Car. & K. 415 
 Stater etal., R. & Ry. 314 
 Stedman's case, Fost. 292 
 Steel, Car. & M. 337 81, 
 
 Steele, 1 Leach, 451 
 Steer, 2 Car. & K. 988 
 Stephens v. Myers, 4 Car. & P. 349 
 Stevens, Ry. & M. 409 
 Stewart & Dickens, R. & Ry. 363 
 Stimpson, 2 Car. & P. 415 
 Stock et al, R. & Ry. 185 
 Stock, Ry. & M. 87 
 Stockley, 1 East, P. C. 310 
 Stokes, 6 Car. & P. 151 
 Stone, 2 Car. & K. 364; 1 Den. 181 
 Stone, 6 T. R. 530 
 Story, R. & Ry. 81 
 Stourbridge, 8 B & C. 96 
 Stratum et al., 1 Camp. 549 n 
 Streek, 2 Car. & P. 413 
 Stringer etal., 1 Car. & K. 188 
 Stroner, 1 Car. & K. 650 
 Stroud, Sarah, 1 Car. & K.' 187 
 Stroud, 6 Car. & P. 535 
 Sollens, Ry. & M. 129 
 Sullivan et al. 8 Ad. & El. 831 
 Sussex Peerage case, 11 CI. & Fin 
 
 134 
 Sutton, 5 B. & Ad. 52 
 Sutton et al., 8 B. & C. 417 157, 
 Sutton, 8 Car. & P. 281 
 Swallow et al., 1 Russ. 792 
 Swatkins, 4 Car & P. 548 
 Swindall et al., 2 Car. &K. 230 
 Swindp.ll et al., 2 Car. & K. 230 
 Swinnerton et al., Car. & M. 593 
 
 PAM 
 
 9, 220 
 
 330 
 
 1, 209 
 
 449 
 
 337- 
 
 486 
 
 12,378 
 
 253 
 
 192 
 
 308 
 
 175 
 
 227 
 
 359, 616 
 109 
 386 
 283 
 261 
 548 
 170 
 334 
 383 
 242 
 172 
 563 
 170 
 466 
 137 
 618 
 172 
 427 
 307 
 207 
 400 
 445 
 157 
 85, 
 
 614 
 
 177 
 
 158, 164 
 
 401, 402 
 
 331 
 
 503 
 
 9 
 
 219 
 
 125 
 
 81, 
 
 Tacey, R. & Ry. 452 
 Taft alias Tuft, 2 East. P. C 
 Taggart, 1 Car. & P. 201 
 Tandy's case, 2 Leach, 833 
 Titpliu v. Atty, 3 Bing. 164 
 Taplin'scase, 2 East, P. C. 7 
 Tnttersall, 1 Russ. 22 
 Taylor, 3 B. & C. 502 
 Taylor, 5 Burr. 2793 
 Taylor. 1 Car. & K. 213 
 Taylor, Car. & M. 112 
 Taylor, 9 Car. & P. 670 
 Taylor, 2 East, P. C. 960 ; 1 
 Taylor, 2 East, P.O. 1010; 
 Taylor, R. & Ry G3 
 Taylor, R. & liy. 373 
 Taylor, li. & Ry. 480 
 Teague, R. & Ry. 33 
 Thomas, 2 Car. & K. 806 
 
 959 
 
 12 
 
 500, 502 
 
 542 
 
 176 
 
 575 
 
 138 
 
 419, 422 
 
 12 
 
 113, 116, 117 
 
 229 
 
 559 
 
 368 
 
 219 
 
 542 
 
 617 
 
 70, 456 
 
 507 
 
 434 
 
 535, 544, 554 
 
 699 
 
 Leach, 255 
 1 Leach, 44 
 
lxx 
 
 TABLE OP CASES. 
 
 Thomaa, 4 Oar. & P. 23V 
 Thomas, 6 Car. k P. 353 
 Thomas, 7 Id. 817 
 Thomas, 7 Id. 851 
 * Thomas, 9 Id. 741 
 Thomas's case, 2 East, P. C. 781 
 Thomas's case, 2 Id. 934 
 Thompson, 2 Leach, 9.10 
 
 PAGE 
 495 
 126 
 232 
 558 
 377 
 474 
 562 
 561 
 Thompson, Win., Ry. k M. 80, 78 30, 
 
 243, 267, 380, 431 
 Thompson, 14 Shaw's J. P. 309 8 
 
 Thorley, Ry. k M. 343 454 
 
 Thorn, Car. k M. 206 558 
 
 Thornton, Ry. & M. 27 127 
 
 Thring, Ry. k M. 171, 5 Car. k P. 507 142 
 Thristle, 19 Law J. 66 m., 2 Car. & K. 
 
 842 383 
 
 Thurborn, 2 Car. & K. 831 388, 390 
 
 Tibshelf, 1B.4 Ad. 190 611 
 
 Tickler's case, 1 East, P. C. 230 221 
 
 Timmins, 7 Car. k P. 499 9, 219 
 
 Tinkler's case, 1 East, P. C. 354 140, 209 
 Tippan, Car. k M. 545 359 
 
 Tivy, 1 Car. k K. 704 525 
 
 Todd v. Hawkins,. 8 Car. k P. 88 320 
 
 Tolfrey, Ry. & M. 243 8, 368 
 
 Tollett v. Taylor. Car. & M. 112 8, 368 
 
 Tomlinson, 7 Car. k P. 183 22, 248 
 
 Topham, 4 T. R. 126 319 
 
 Towle et al., R. k Ry. 314 175 
 
 Townsend, 2 Car v & X. 168 449 
 
 Townsend, Car. k M. 178 463 
 
 Tracy, Frederick, 2 Str. 1095 622 
 
 Trapshaw's case, 2 East, P. C. 506 339 
 
 Treble, R. k Ry. 164 535, 545 
 
 Tremearne, 5 B. & C. 254 164 
 
 Trilloe, Car. & M. 650 212 
 
 Tristv. Johnson 1 Mo. & R 259 140 
 
 Tubby, 5 Car. k P 530 126 
 
 Tucker, Ry. k M. 134 325 
 
 Tubkwell and Perkins, Car. & M. 215, 
 
 • 12, 14 
 Tuft, 2 East, P. C. 959 545 
 
 Turner, 2 Car. & K. 732 603, 604 
 
 Turner, 6 Car. k P. 407 434 
 
 Turner, 8 Car. k P. 755 299 
 
 Turner, 2 East, P. C. 492 334, 336 
 
 Turner, 13 East, 228 618 
 
 Turner, Ry. k M. 47 576 
 
 Turner and Reader, Ry. k M. 239, 503, 504 
 Turner, Rv. & M. 347 477 
 
 Turpin, 2 Car. & K. 820. 545 
 
 Tyler, 1 Car.&P. 129 129 
 
 Tyler, 8 Car. & P. 616 250 
 
 IT 
 
 TJezzell et al., 20 Law J. 192 m. .'406, 408 
 
 Van Butchell, 3 Car. k P. 629 9, 220 
 
 Vandercomb and Abbot, 2 East, P. C. 
 
 514 329 
 
 Vandercombe, 2 Leach, 708 112 
 
 Van Muyen, R. k Ry. 118 365 
 
 PAGE 
 
 Vann, 21 Law J. 39 m. 609 
 
 Vaughan, 8 Car. & P. 276 563 
 
 Vaux's case, 4 Co. 45 a. 112 
 
 Verelst, 3 Camp. 432 136, 595 
 
 Villeneuve's case, cit. 3 T. R. 104, 105, 469 
 Vines et al., Ry. k M. 336 487, 491 
 
 Vivian, 1 Car. k K. 719 560 
 
 Voke, R. & Ry. 531 120, 258 
 
 Vyse, Ry. & M. 218 393 
 
 W 
 
 Wade et al., 1 Car. & K. 739 479 
 
 Wagstaff, R. & Ry. 398 324, 429 
 Waite, 2 East, P. C. 570, 1 Leach 28 
 
 109, 363 
 
 Wakeling, R. & Ry. 504 472 
 
 Walker, 2 Camp. 264 477 
 
 Walker, 1 Car. k P. 320 9, 219 
 
 Walker, 3 Camp. 264 15, 80 
 
 Walker, Ry. & K 7 337 
 
 Walker, Ry. k M. 155 397 
 Walkley, I. and G. 4 Car. k P. 132, 474, 478 
 
 Walkley and Clifford, 6 Car k P. 175, 126 
 
 Wallace, 1 Car. k M. 200, 68, 528 
 
 Wallis, 12 Shaw's J. P. 236 380 
 
 Wallis, Margaret, Ry. & M. 344 488 
 
 Walls et al., 2 Car. k K. 214 174, 424 
 
 Walsh, Ry. & M. 14 362, 380 
 
 Walsh, Benj. R. & R. 216 393 
 
 Walters, Car. & M. 164 209, 215 
 
 Walters, Car. k M. 588 658 
 
 Walter, 3 Esp. 21 318 
 
 Walters et al., Ry. & M. 13 346 
 
 Walters et al., 12 St. Tr. 113 236 
 
 Waltham, 13 Shaw's J. P. 183 261 
 
 Wandsworth, 1 B. k Aid. 63 177 
 
 Ward, l'Burr. 333 608 
 
 Ward, 2 Car. k K. 759 168 
 
 Ward, 6 Car. &.P. 366 142, 603 
 
 Ward's case, 1 East, P. C. 270 236 
 
 Ward, Gow. 168 450 
 
 Wardle, Car. k M. 647 163, 164 
 Warner et al., Ry. k M. 380, 5 Car. & P. 
 
 525 30, 247, 252 
 
 Warren, 12 Shaw's J. P. 571 127 
 
 Warren and Spencer, 6 Car k P. 335 n 352 
 
 Watkins, Car. k M. 264 329 
 
 Waters, 2 Car. & K. 864 207,209 
 
 Watson, 2 East, P. C. 680 377 
 
 Watson, 2 Stark. 140 125 
 
 Watts, 19 Law J. 192 m 45 1 
 
 Watts, R. k Ry 436 540 
 
 Wavell, Ry. k M. 224 471 
 
 Weale, 5 Car. k P. 135 404 
 
 Weaver et al., 4 Car. k P. 231 343 
 
 Webb, 1 Car. &K. 144 615 
 
 Webb, 2 Car. & K. 933 195 
 
 Webb, 4 Car. k P. 564 126 
 
 Webb, 6 Car.&P. 595 154 
 
 Webb, 2 Esp. 719 620 
 
 Webb, 1 Moody k R 405 9, 210, 221 
 
 Webb, R. k Ry. 405 640 
 
 Webb, Ry. k M. 431 417 
 
 Webster et al., R. k Ry. 305 378 
 Welbourn's case, 1 East, P. C. 358 140, 141 
 
 Welch, 2 Car. k K. 296 449 
 
TABLE OF CASES. 
 
 Ixxi 
 
 "Welch, 20 Law J. 101m. 
 Welland, R. & Ry, 494 
 "Welsh, By. & M. 115 
 "Went, R. & Ry, 359 
 West, 2 Car. & K. 496 
 
 PAGE 
 573 
 399 
 65, 112 
 82, 359 
 562 
 "Wes^ 2 Car. & K. 784 209, 211, 221, 296 
 Weston's case, 1 Leach, 247 272 
 
 Westwood, R. & Ry. 495 333, 336, 345 
 
 Whalley, 2 Car. & K. 376 162 
 
 Wheeldon, 8 Car. & P. 747 '343 
 
 "Wheeler, 3 Car. & P. 585 351 
 
 "Whiley, 1 Car. & K. 150 72, 74 
 
 "Whiley, R. & Ry. 90 543 
 
 Whitby Lower, 1K.4S. 636 125 
 
 "White, 1 Burr. 333 608 
 
 White, 2 Camp. 98 169 
 
 White, 2 Car. & K. 404 ; 1 Den. 208 537 
 White, 4 Car. & P. 46 459 
 
 White, 8 Car. &, P. 742 455 
 
 "White, 9 Car. & P. 282 558 
 
 White, R. & Ry. 99 13, 251 
 
 Whitehead, 9 Car. & P. 429 359 
 
 Whitethorne et al., 3 Car. & P. 394 30, 
 
 246, 252 
 Whitney, Ry. & M. 3 525 
 
 Whittaker et a)., 2 Car. & K. 636 401 
 
 Whittingham, 9 Car. & P. 234 511 
 
 Wiekham, 10 Ad. & El. 34 471 
 
 Wicks, R. & Ry. 149 553 
 
 Wigg's case, 4 Co. 46 b. 112 
 
 Wigga, 1 Leach, 378 n. 218 
 
 Wiley, 20 Law J. 4 m. 478 
 
 Wilford v. Nibbs, R. & Ry. 517 336 
 
 Wikes, 7 Car. & P. 272 154 
 
 Wikes v. R., 4 Bro. P. C. 367 183 
 
 Wilkinson, 1 Hale, 508; 2 East, P. C. 556 
 
 381, 431 
 Wilkinson, R. & Ry. 109 613 
 
 Wilkinson and Marsden, R. & Ry. 470 368 
 Wilkins, 2 East, P. C. 673 374 
 
 Williams, 5 B. & A. 595 319 
 
 Williams et al., 1 Car. & K. 589 259 
 
 Williams, 2 Car. & K. 51 559 
 
 Williams, 9 B. & C. 549 151 
 
 Williams, C. and W., Car. & M. 259 578 
 
 Williams, 2 Camp. 506 74 
 
 Williams, 7 Car. & P. 320 150 
 
 Williams, 7 Car. & P. 338 456 
 
 Williams, 7 Id. 354 471 
 
 Williams, 6 Car. & P. 390 376 
 
 Williams, 1 Leach, 529 282 
 
 Williams, Ry. & M. 1<W 399, 402 
 
 Williams, David, 20 Law J. 106 m 557 
 
 Williamson, 5 Car. & P. 635 9 
 
 Williamson, 3 Id. 635 220 
 
 Willis, 1 Car. & K. 122 81, 207 
 
 Willis, R. & Ry. 470 369 
 
 Willis, Ry. & M. 375 7 
 
 Willoughby et al., 1 East, P. C. 288 250 
 
 Wilshaw, Car. &, M. 145 
 Wilson, 2 Car. & K. 227 
 Wilson, 8 Car. & P. Ill 
 Wilson et al., 14 Law J. 3 m 
 Wilson, R. & Ry, 115 
 Winter, R. & Ry. 295 
 Winterbottom, 2 Car. & K. 37 
 Winteringham, 1 Str. 2 
 Winkworth et al., 4 Car. & P. 392 
 Witchell, 2 East, P. C. 830 
 
 PAGE 
 
 148 132 
 
 538 559 
 
 377 
 
 102 
 
 338 
 
 487 
 
 553 
 
 89 
 
 420 
 
 472 
 
 Withers, Ry. & M. 294, 4 Car. & P. 446 260 
 Withers, 3 T. R. 428 322 
 
 Witt, Ry. & M. 248 338 
 
 Wood and Elnewland, 2 East, P. C. 732 421 
 Woodhead, 2 Car. & K. 520 168 
 
 Woodhead, 1 Mo. & R. 549 499 
 
 Woodward's case, 2 East, P. C. 653 358 
 
 Woodward v. Lander, 6 Car. & P. 548 320 
 Woodward, Ry. & M. 323 503, 504 
 
 Woolley, 19 Law J. 165 m 469 
 
 Woolmer and Palmer, Ry. & M. 334 30, 243 
 Worker, Ry. & M. 165 407 
 
 Worrall, 7 Car. & P. 516 412 
 
 Wortley and Allen, 2 Car. & K. 283 352 
 
 Wortley, 15 Shaw's J. P. 785 449 
 
 Wright v. Court, 4 B & C. 596 34, 35 
 
 Wright, 7 Car. & P. 159 438 
 
 Wright, 9 Car. & P. 754 211 
 
 Wroxton, 4 B. & Ad. 640 611 
 
 Wylde, 6 Oar. & P. 380 604 
 
 Wylie et al., 2 New Rep. 92 551 
 
 Wynn, 2 Car. & K. 859 580 
 
 Wynn, 2 East, 226 102 
 
 Wynne's case, 2 East, P. 0. 664; 1 
 , Leach, 460 389 
 
 Tates, Car. & M. 132 593, 598, 606 
 
 Tates, Ry. & M. 170 149, 393, 394, 471 
 
 Tend and Haines, 6 Car. & P. 176 370, 
 
 390, 399 
 
 Tendall, 4 T. R. 358 103 
 
 Teovley, 8 Law J. 9 m 142, 603 
 
 York's case, Fost, 70 4 
 
 Torke, 2 Car. & K. 841 390 
 
 Yorkshire, JJ. of W. R. 1 T. R. 469 198 
 Young, 2 Car. & K. 466 581 
 
 Young's case, 4 Co. 40 b 250 
 
 Young v. Rex, 3 T. R. 98 95, 464, 465 
 
 Young et al., 3 T. R. 98 96, 465 
 
 Young, 8 Car. & P. 644 249 
 
 Z 
 
 Zulueta, Pedro de, 1 Car & K. 215 108 
 
TABLE OF STATUTES. 
 
 3 Ed. 1, c. 9, p. 28. 
 
 25 Ed. 3, st. 5, c. 2, pp. 482, 564, 567. 
 25 Ed. 3, st. 5, c. 14, p. 103. 
 
 34 Ed. 3, c. 1, p. 24. 
 13 H. 4, c. 7, p. 24. 
 
 .2 H. 5, c. 8, s. 2, p. 25. 
 
 6 H. 6, c. 1, p. 103. 
 
 8 H. 6, c. 9, s. 3, p. 151. 
 24 H. 8, c. 5, p. 225. 
 28 H. 8, c. 15, pp. 67, 68.— s. 3, p. 482. • 
 
 35 H. 8, c. 2, p. 72. 
 
 1 Mary, sess. 2, c. 6, p. 567. 
 
 1 & 2 Ph. & M. c. 13, p. 148. 
 
 2 & 3 Ph. & M. c. 10, p. 148. 
 5 Eliz. c. 9, p. 602. 
 
 21 Jac. 1, c. 15, p. 151. 
 
 22 C. 2, c. 11, p. 485. 
 
 3 W. & M. c. 9, s. 4, p. 473. 
 3 & 4 W. & M. c. 9, p. 18. 
 
 7 & 8 W. 3, c. 3, ss. 2, 3, p. 155.— s. 1, p. 169.— ss. 2, 5, pp. 565, 566. 
 
 11 & 12 W. 3, c. 7, p. 483.— s. 8, p. 484.— s. 9, p. 485. 
 1 Ann. st. 1, c. 18, s. 13, p. 152. 
 
 5 Ann. c. 31, s. 5, p. 18, 473. 
 
 7 Ann. c. 21, s. 11, p. 99, 565, 566. 
 
 12 Ann. st. 2, c. 18, s. 1, p. 287. 
 
 1 G. 1, st. 2, c. 5, ss. 1, 3, p. 25.— s. 3, p. 29.^-ss. 1, 5, p. 591. 
 
 6 G. 1, c. 23, s. 11, p. 282. 
 
 8 G. 1, c. 24, s. 1, p. 485. 
 
 9 G. 1, c. 22, p. 271.— s. 1, p. 506. 
 
 2 G. 2, c. 25, s. 2, p. 602. 
 
 18 G. 2, c. 30, s. 1, pp. 483, 484. 
 
 23 G. 2, c. 11, s. 1, p. 594. 
 
 24 G. 2, c. 45, p. 438. 
 
 30 G. 2. c. 24, s. 1, p. 464. 
 
 7 & 8 G. 3, c. 28, s. 3, p. 163. 
 27 G. 3, c. 29, s. 1. p. 152. 
 
 30 G. 3, c. 48, p. 181. 
 
 32 G. 3, c. 60, «s. 1,4, p. 822. 
 
 36 G. 3, c. 7, p> 567. 
 
 37 G. 3, c. 70, ss. 1, 2, p, 72. 
 
 38 G. 3, c. 52, ss. 2, 12, p. 64.— s. 3, p. 192. 
 
 K 
 
lxxiv . TABLE OP STATUTES. 
 
 39 G. 3, c. 37, p. 67. 
 
 39 G. 3, c. 85, p. 363. 
 
 39 & 40 G. 3, c. 94, ss. 1, 2, p. 5.— s. 2, p. 109. 
 
 41 G. 3, c. 90, s. 9, p. 141. 
 
 42 G. 3, c. 85, p. 66. 
 
 43 G. 3, c. 58, p. 257. 
 
 48 G. 3, o. 88, s. 1, p. 556. 
 
 51 G. 3, c. 100, s. 1, p. 180.— s. 2, p. 192.— s. 1, pp. 202, ,204. 
 
 52 G. 3, c. 104, s. 8, p. 72. 
 
 54 G. 3, c. 146, ss. 1, 2, p. 181. 
 64 G. 3, c. 170, s. 9, p. 152. 
 57 G. 3, c. 6, p. 567. 
 
 59 G. 3, c. 69, s. 4, p. 72. 
 
 60 G. 3 & 1 G. 4, c. 14, s. 1, p. 47.— s. 3, p. 191. 
 1 G. 4, c. 4, s. 8, p. 99. 
 
 1 G. 4, o. 57, s. 3, p. 183.— ss. 2, 3, p. 185. 
 1 & 2 G. 4, c. 41, p. 189. 
 1 & 2 G. 4, u. 75, p. 531. 
 
 1 8, A \i. *, u. 10, p. 031. 
 
 3 G. 4, c. 114, pp. 183, 588, 602, 629. 
 
 4 G. 4, c. 48, s. 1, p. 182. 
 
 4 G. 4, c. 76, ss. 14, 16, p. 610.— ss. 10, 16, 26, p. 611. 
 
 4 G. 4, c. 91, s. 1, p. 613. 
 
 5 G. 4, u. 84, s. 22, p. 74.— s. 24, p. 142.— s. 2, p. 182.— ss. 4, 10, 18, 19, p. 204. 
 
 6 G. 4, c. 50, s. 13, p. 85.— s. 1, p. 157.— ss. 2, 3, 48, 49, p. 158.— ss. 4, 6, 8, 9, 10, 
 12, 13, 14, 47, p. 159.— ss. 20, 22, 25, 40, 42, p. 160.— s. 38, p. 161.— s. 23, p. 
 162.— s. 29, p. 163.— s. 27, p. 164.— s. 21, p. 566. 
 
 7 G. 4, c. 64, s. 9, p. 15.— ss. 12, 13, p. 65.— s. 9, p. 74.— s. 20, p. 75.— s. 19, p. 
 78.— s. 14, p. 81.— ss. 15, 16, p. 82.— ss. 16, 18, p. 83.— s. 21, p. 84.— s. 20, p. 
 92.— s. 19, p. 111.— s. 20, p. 115.— s. 21, p. 164.— s. 20, p. 179.— ss. 22, 23, pp. 
 187, 188.— s. 28, p. 189.— ss. 26, 30, p. 190.— ss. 24, 25, p. 191.^-ss. 29, 30, p. 
 192.— s. 32, p. 282.— ss. 14, 16, p. 359.— ss. 16, 18, p. 360.— s. 13, p. 438. 
 
 7 & 8 G. 4, c. 10, s. 7, p. 327. 
 
 7 & 8 G. 4, c. 18, ss. 1, 4, p. 294. 
 
 7 & 8 G. 4, c. 22, s. 46, p. 443. 
 
 7 & 8 G. 4, c. 27, s. 1, p. 184. 
 
 7 & 8 G. 4, c. 28, s. 12, p. 68.— s. 2, p. 109.— s. 1, p. 110.— ss. 4, 13, p. 114.— s. 11, 
 pp. 143, 165.— s. 9, p. 183.— ss. 8, 11, p. 184.— ss. 8, 9, 11, p. 185.— s. 10, p. 186. 
 — s. 2, pp. 482, 565.— s. 3, p. 566.— s. 11, pp. 624, 626. 
 
 7 & 8 G. 4, c. 29, s. 61, pp. 13, 19.— s. 63, p. 21.— s. 76, p. 69.— ss. 18, 56, p. 71. 
 — ss. 48, 53, p. 95.— s. 53> pp. Ill, 124.— s., 5, p. 149.— s. 53, p. 174.— s. 4, p. 
 183.— s. 57, p. 192.— s. 63, p. 238.— s. 9, p. 324, n.— s. 7, p. 327.— s. 13, p. 335. 
 — s. 12, p. 341.— s. 11, p. 342.— ss. 4, 6, 14, p. 344.— s. 14, p. 345.— ss. 12, 13, 
 p. 347.— s. 15, p. 348.— s. 10, p. 351.— s. 3, p. 355.— s. 2, p. 357.— s. 47, p. 363. 
 — s. 2, p. 364.— s. 53, p. 379— s. 47, p. 387.— s. 5, p. 391.— ss. 21, 23, 24, p. 
 395.— ss. 22, 24, p. 396.— s. 21, p. 397.— s. 25, pp: 398, 401.— s. 26, p. 402.-H3. 
 29, p. 403.— ss. 4, 30, p. 404.— ss. 4, 34, p. 410.— s. 36, p. 411.— s. 44, p. 412.— 
 ss. 38, 39, p. 414.— ss. 38, 42, p. 415.— s. 37, p. 416.— s. 7, p. 420.— s. 6, pp. 423, 
 428.-8. 8, p. 429.— s. 13, p. 434.— s. 17, pp. 488, 489, 440.— s. 45, p. 441.— ss. 
 3, 4, p. 442.— s. 48, pp. 446, 447.— ss. 46, 47, p. 448.— s. 48, p. 458.— SS. 4, 49, 
 50, 52, p. 460.— s. 51, p. 461.— s. 5, p. 462— ss. 4, 58, p. 464.— s. 63, pp. 467, 
 471, 472.— s. 54, pp. 473, 474, 475.— ss. 55, 57, p. 481.— s. 14, p. 486.— s. 38, p. 
 507.— ss. 8, 4, p. 627. 
 
TABLE OF STATUTES. Ixxv 
 
 7 & 8 G. 4, c. 30, s. 26, pp. 18, 19.— s. 28, p. 21.— s. 25, pp. 87, 121.— s. 27, p. 
 
 183.— s. 2, p. 351.— s. 8, p. 494— s. 3, pp. 498, 499, 500.— s. 4, p. 501.— s. 17, p. 
 
 503— s. 18, p. 505.— s. 19, pp. 506, 507— s. 6, pp. 508, 509, 510.— ss. 6, 7, p. 
 
 511.— s. 12, pp. 512, 513, 514, 515.— s. 15, pp. 516, 517.— s. 13, p. 518.— ss. 14, 
 
 27, p. 519.— s. 16, p. 523.— s. 25, p. 525.— s. 9, p. 526— s. 10, p. 529. 
 9 tt. 4, c. 15, p. 100. 
 9 G. 4, c. 21, s. 31, p. 19. 
 9 G. 4, c. 31, s. 25, pp. 20, 30.— ss, 7, 8, p. 66— ss. 8, 32, p. 67.— s. 8, p. 68.— s. 
 
 22, p. 74— s. 14, p. 174— ss. 3, 4, p. 181.— ss. 15, 16, p. 181.— s. 1, p. 184— s. 
 
 6, p. 204— s. 3, p. 206.— s. 7, p. 208.— s. 10, pp. 216, 223.— ss. 3, 31, p. 254.— s. 
 
 9, p. 255.— s. 11, p. 256— s. 12, pp. 263, 267.— s. 14, p. 280.— s. 25, p. 285.— s. 
 
 24, pp. 286, 287.— s. 25, pp. 288, 290,— s. 14, p. 297— s. 21, p. 300.— ss. 19, 20, 
 p. 301.— s. 20, p. 302— s. 25, p. 304.— s. 18, p. 305.— s. 25, p. 308.— ss. 15, 18, 
 
 25, p. 309.— s. 25, p. 310.— ss. 15, 18, 25, p. 311— ss. 17, 18, p. 312.— s. 18, p. 
 313.— s. 22, pp. 610, 613, 614— s. 25, p. 630. 
 
 9 G. 4, c. 32, pp. 149, 150.— s. 2, pp. 151, 537. 
 
 9 G. 4, c. 64, s. 44, p. 73. 
 
 9 G. 4, c. 69, ss. 1, 2, p. 22.— ss. 1, 2, 9, 12, p. 245.— ss. 2, 9, p. 289.— ss. 6, 9, p. 
 
 406.— s. 12, p. 407.— s. 13, p. 409.— s. 4, p. 410.— s. 9, p. 584. 
 9 G. 4, c. 92, s. 8, p. 359. 
 
 10 G. 4, c. 56, s. 21, p. 359. 
 
 11 G. 4, & 1 W. 4, c. 39, s. 7, pp. 182, 204. 
 
 1 W. 4, c. 66, s. 25, pp. 13, 19— s. 27, p. 67.— ss. 3, 10, 25, 26, 30, p. 536.— s. 24, 
 p. 546.— ss. 3, 12, 18, p. 555.— ss. 3, 10, p. 556.— ss. 5, 6, 8, 9, 10, 19, 30, p. 
 557.— s. 3, p. 558.— s. 10, p. 561.— ss. 2, 3, 11, 20, p. 563. 
 
 2 W. 4, c. 4, ss. 1, 4, p. 462.— s. 2, p. 463. 
 
 2 W. 4, c. 34, s. 18, pp. 13, 19.— s. 20, p. 67.— s. 15, p. 73.— s. 19, p. 183.— s. 3, p. 
 571.— ss. 7, 17, 21, p. 572.— s. 21, p. 573— s. 7, pp. 574, 575.— ss. 7, 9, p. 576— 
 ss. 8, 19, 21, p. 577. 
 
 2 & 3 W. 4, c. 75, pp. 181, 204. 
 
 3 & 4 W. 4, c. 49, pp. 150, 595. 
 3 & 4 W. 4, c. 53, s. 77, p. 67. 
 
 3 & 4 W. 4, c. 82, pp. 150, 595. 
 
 4 & 5 W. 4, c, 26, s. 1, p. 181. 
 
 4 & 5 "W. 4, c. 27, ss. 1, 2, 3, p. 45. 
 
 4 & 5 W. 4, c. 36, s. 22, p. 68.— ss. 2, 3, 22, p. 75.-^-8. 22, p. 188. 
 
 5 & 6 W. 4, c. 38, s. 3, p. 45.— s. 3, p. 46.— s. 4, pp. 182, 202, 204. 
 
 5 A 6 W. 4, c. 54, s. 2, p. 614. 
 
 6 & 6 "W. 4, c. 62, s. 21, p. 602. 
 
 * 5 & 6 W. 4, c. 69, s. 7, pp. 82, 360. 
 
 5 & 6 W. 4, c. 76, s. 109, p. 64.— s. 121, p. 157.— ss. 22, 121, p. 168.— s. 121, pp 
 161, 162. 
 
 6 W. 4, c. 4, p. 351. 
 
 6 & 7 W. 4, c. 30, s. 2, p. 181. 
 
 6 & 7 W. 4, a 76, ss. 6, 8, p. 819. 
 
 6 & 7 W. 4, c. 85, ss. 1, 11, 16, 17, 18, 24, 26, ,86, p. 611.— ss. 2, 4, 20, 21, p. 
 
 612. 
 6 & 7 W. 4, c. Ill, pp. 624, 626. 
 6 & 7 W. 4, c. 114, s. 1, p. 169. 
 1 V. c. 36, s. 35, p. 19.— s. 36, p. 20.— s. 37, p. 73.— ss. 26, 40, 42, p. 578.— s. 85, 
 
 p. 579— ss. 28, 35, 41, p. 582.— ss. 27, 35, 41, 42, p. 583. 
 
Ixxyi TABLE OF STATUTES. 
 
 1 V. c. 84, s. 2, pp. 536, 655, 556.— s. 1, p. 557— S. 2, p. 558.-^ss. 1, 2, p. 563. 
 1, p. 567 1 . 
 
 J., p. UUI. 
 
 1 V. c. 85, p. 20— s. 4, p. 30.— s. 10, p. 67.— s. 11, p. 174— ss. 2, 7, 8, p. 256.— ss. 
 
 3, 7, 8, p. 258.— ss. 2, 3, 7, p. 259— s. 7, p, 260— s. 4, pp. 263, 264, 267— ss. 2, 
 
 7, 8, p. 269.— s. 2, p. 270— ss. 3, 7, 8, pp. 271, 273.— ss. 4, 7, 8, p. 275.— ss. 3, 
 
 7, 8, pp. 276, 277, 278.— s. 5, pp. 280, 281.— ss. 6, 7, 8, pp. 295, 297— s. 11, p. 
 
 630. 
 1 V. c. 86, s. 4, pp. 23, 328.— ss. 2, 3, 6, 7, p. 329.— s. 4, pp. 332, 333.— ss. 2, 6, p. 
 
 p. 341— s. 4, p. 343.— ss. 5, 7, p. 436. 
 1 V. c. 87, s. 6, p. 20— ss. 1, 4, p. 327.— ss. 5, 9, p. 418.— s. 4, p. 420— ss. 2, 3, 
 
 10, p. 324.— ss. 3, 6, 10, p. 425.— ss. 3, 10, p. 426^— ss. 7, 10, p. 427— ss. 5, 10, 
 
 p. 431.— ss. 8, 10, p. 440.— ss. 6, 10, p. 441. 
 1 V. c. 88, s. 1, p. 482.— ss. 2, 5, p. 484. 
 1 V. c. 89, ss. 3, 11, 12, p. 485.— s. 3, p. 488.— ss. 2, 11, 12, p. 490.— ss. 3, 11, 12, 
 
 p. 493— ss. 10, 11, 12, p. 504— ss. 9, 12, p. 508.— s. 4, p. 526.— s. 6, pp. 527, 
 
 528.— s. 5, pp. 530, 531.— ss. 7, 8, p. 532. 
 1 V. c. 90, s. 2, p. 344.— s. 1, p. 347.— s. 2, p. 349— ss. 1, 3, pp. 398, 401, 433.— 
 
 ss. 2, 3, pp. 437, 438, 439, 505.— s. 2, pp. 623, 525. 
 1 V. c. 91, ss. 1, 2, p. 591. 
 1 & 2 V. c. 77, p. 695. 
 1 & 2 V. c. 105, p. 595. 
 1 & 2 V. c. 110, s. 105, p. 145. 
 2&3 V. c. 58, s. 10, p. 417. 
 8 & 4 V. c. 9, p. 320. 
 3 & 4 V. c. 54, ss. 1, 2, 3, p. 5. 
 3 & 4 V. c. 72, s. 1, p. 611. 
 
 3 & 4 V. c. 110, p. 359. 
 
 4 & 5 V. a 56, s. 3, pp. 181, 304, 312. ' 
 6 & 6 V. c 39, s. 6, pp. 461, 462. 
 
 5 & 6 V. c. 51, s. 1, pp. 155, 565, 566.— ss. 2, 3, p. 570. 
 5 & 6 V. c. 57, s. 16, pp. 82, 360. 
 
 5 & 6 V. c. 66, s. 9, p. 556. 
 
 6 & 6 V. c. 113, p. 612. 
 6 & 7 V. c. 10, p. 494. 
 
 6 & 7 V. c. 39, p. 612. 
 
 6 & 7 V. c 85, s. 1, pp. 151, 152, 158, 155, 477, -537, 606. 
 
 6 & 7 V. c 96, ss. 4, 5, p. 316.— s. 6, p. 317-— s. 7, p. 318.— ss. 4, 5, 6, 8, p. 322.— 
 s. 3, p. 323. 
 
 7 & 8 V. c 2, ss. 1, 2, p. 68.— s. 1, pp. 188, 208. 
 7 & 8 V. c. 29, s. 2, p. 22. 
 
 7 & 8 V. c. 56, p. 611. 
 
 7 & 8 V. c. 62, s. 1, pp. 487, 488.— ss. 1, 3, p. 491.— s. 2, p. 492. 
 
 7 & 8 V. c. 66, s. 16, p. 159. 
 
 7 & 8 V. c. 101, s. 71, p. 145. 
 
 8 & 9 V. c 25, s. 13, p. 27— s. 17, p. 67— s. 11, p. 183.— s. 9, p. 184.— ss. 4, 11, p. 
 278— ss. 4, 9, 10, 11, 15, p. 279.— ss. 4, 10, 11, 15, p. 280— ss. 4, 5, 9, 10, 11, 
 15, p. 281.-S. 7, p. 486.-S. 1, p. 496,-ss. 6, 6, 9, 10, 11, 16, p. 497.-SS. 7, 11, 
 pp. 508, 527, 528.— ss. 7, 9, 11, p. 629. 
 
 8 & 9 V. c. 29, ss. 7, 11, p. 504. 
 
 8 & 9 "V. o. 44, s. 3, p. 22.— s. 1, pp. 522, 523. 
 
 8 & 9 V. c. 68, ss. 1, 2, 8, p. 200.— s. 5, p. 201. 
 
 6 & 9 V. o. 87, s. 95, p. 67.— 186, p. 72.— s. 96, p. 73.— s. 132, p. 135.— s. 66, p. 
 
TABLE OF STATUTES. Ixrvii 
 
 288— ss. 63, 126, 134, p. 584.— ss. 65, 126, 134, p. 885.— ss. 64, 126, 132, 184, 
 p. 586.— ss. 66, 126, 181, 134, p. 587. 
 
 8 & 9 V. c. 113, s. 3, p. 141.— ss. 2, 3, p. 144.— s. 3, p. 145.— s. 1, p. 146.— s. 4, 
 p. 563. 
 
 9 & 10 V. c. 24, s. 1, p. 182. 
 
 9 & 10 V. c. 95, s. Ill, p. 144. 
 
 9 & 10 V. a. 99, s. 38, p. 71. 
 10 & 11 V. a 58, p. 612. 
 
 10 & 11 V. c. 66, s. 1, p. 324.— s. 2, p. 326.— s. 1, p, 533. 
 10 & 11 V. c 67, p. 204. 
 
 10 &, 11 V. c. 82, s. 1, p. 59.— ss. 2, 4, 5, 7, 8, 9, p. 60.— ss. 12, 15, 16, 17, p. 61.— 
 ss. 1, p. 62.— s. 1, p. 185. 
 
 11 V. c 12, s. 10, p. 189.— s. 1, p. 567.— s. 5, p. 568.— ss. 3, 4, 6, 7, 8, 10, p. 569. 
 11 & 12 V. c. 42, ss. 1, 4, 8, 9, 10, p. 31.— ss. 1, 8, 9, p. 32.— ss. 11, 14, p. 34.— ss. 
 
 2, 17, p. 35.— s, 21, p. 37, 38.— s. 16, p. 39, 42.— s. 18, p. 43.— ss. 9, 10, 18, p. 
 
 44.— s. 25, p. 45.— s. 20, p. 47.— s. 22, p. 52, 54.— ss. 11, 23, 28, p. 55.— s. 23, 
 
 p. 57.— ss. 23, 24, p. 58.— s. 2, p. 66.— s. 3, p. 104, 107.— s. 18, p. 131, 132, 
 
 133.— s. 17, p. 141, 147. 
 11 & 12 V. c. 46, s. 1, p. 16.— s. 2, p. 18, 19, 75.— s. 3, p. 93.— s. 4, p. 100.— ss. 31, 
 
 32, p. 131.— s. 3, p. 175.— s. 1, p. 344.— s. 3, p. 361.— s. 1, p. 417.— s. 3, p. 475, 
 
 480. 
 11 & 12 V. c. 68, ss. 1, 9, p. 613. 
 
 11 & 12 V. c. 78, ss. 1, 3, p. 194.— s. 2, p. 195.— ss. 2, 3, 4, p. 196.— s. 6, p. 198.— s. 
 5, p. 201. 
 
 12 V. c. 11, ss. 1, 3, p. 855.— s. 2, p. 441, 442.— s. 3, p. 626. 
 12 & 13 V. c 45, s. 10, p. 100. 
 
 12 & 13 V. c. 68, p. 613. 
 
 12 & 13 V. e. 76, ss. 2, 3, p. 189.— ss. 1, 2, 3, p. 303. 
 
 12 & 13 V. c. 106, s. 236, p. 144— s. 237, p. 145. 
 
 13 & 14 V. c. 37, s. 1, p. 59.— s. 2, p. 60.— s. 1, p. 184 
 
 13 * 14 V. c. 100, ss. 5, 18, p. 464. 
 
 14 V. c. 11, ss. 1, 2, 6, p. 291, 292. 
 
 14 & 15 V. c. 19, ss. 1, 4, 7, 8, 10, 11, 13, p. 23.— s. 9, p. 108, 165.— s. 14, p. 189.— 
 ss. 4, 5, p. 262, 267.— ss. 4, 14, p. 268.— s. 4, p. 269.— s. 12, p. 299.— ss. 1, 2, 13, 
 p. 353.— s. 2, p. 354.— s. 3, p. 432.— ss. 6, 14, p. 519— ss. 7, 14, p.*520.— ss. 8, 
 14, p. 521.— s. 1, p. 625.— ss. 2, 9, p. 626. 
 
 14 & 15 V. c. 23, p. 476. 
 
 14 & 15 V. c. 55, s. 18, p. 34.— ss. 19, 20, 21, p. 46.— ss. 19, 24, p. 64.— s. 23, p. 
 108.— s. 2, p. 187.— ss. 1, 6, p. 188.— s. 8, p. 189.— s. 4, p. 190.— s. 6, p. 191.— s. 
 23, p. 192, 202, 204.— s. 3, p. 282. 
 
 14 & 15 V. c. 99, s. 13, p. 113, 143.— s. 7, p. 144.— s. 12, p. 145.— s. 10, p. 146.— s. 
 14, p. 147.— ss. 1, 2, 3, p. 152.— s. 3, p. 153.— s. 1, p. 155.— s. 2, p. 593.— s. 16, 
 p. 594, 604. 
 
 14 & 15 V. c. 1,00, s. 1, p. 15.— s. 15, p. 17.— s 23, p. 64.— s. 24, p. 75, 78, 80.— s. 1, 
 p. 83.— s. 24, p. 84— ss. 1, 17, 23, p. 85.— ss. 1, 24, p. 86.— s. 8, p. 87.— s. 4, p! 
 89.— ss. 5, 6, 7, 18, 24, p. 90.— s. 24, p. 92, 93.— ss. 9, 11, 13, p. 94.— ss. 12, 16, 
 17, p. 95.— s. 15, p. 97— s. 1, p. 100.— ss. 2, 3, p. 101.— ss. 26, 27, p. 110.— ss! 
 9, 11, 14, 24, p. 111.— s. 28, p. 112.— s. 25, p. 115.— ss. 9, 11, p. 119.— s. 8, p. 
 120.— s. 17, p. 123.— ss. 9, 11, 13, p. 124.— s. 12, p. 173.— ss. 9, 11, 13, 14, 17, 
 p. 174.— s. 12, p. 175.— s. 25, p. 178.— s. 24, p. 179.— s. 29, p. 184.— s. 4, p. 206,'* 
 213, 255.— s. 12, p. 268, 269.— s. 29, p. 285.— s. 12, p. 286.— s. 9, p. 296, 304.-1 
 s. 12, p. 308.— s. 9, p. 309.— s. 12, p. 310.— s. 9, p. 311, 312.— ss. 9, 12, 29, p. 
 
lxxviil TABLE OF STATUTES. 
 
 313.— s. 29, p. 314.— s. 18, p. 323, 327.— s. 1, p. 339, 340,^-s. 9, p. 348.— s.' 1. 
 p. 350, 352.— ss. 5, 18, 24, p. 357.— ss. 1, 16, 17, p. 360.— ss. 13, 17, p. 361.— s. 
 13, p. 363.— s. 24, p. 364.— s. 17, p. 371.— s. 9, p. 381.— ss. 1, 5, p. 391.— s. 18, 
 p. 392, 394.— s. 5, p. 395, 397.— s. 1, p. 408.— s. 18, p. 417— s. 11, p. 424— s. 
 .13, p. 446.— s. 18, p. 447.— s.'13, p. 452.— ss. 13, 18, p. 458.— s. 7, p. 459.— s. 8, 
 p. 464.— s. 12, p. 466— ss. 9, 18, p. 471.— s. 8, p. 472.— s. 29, p. 473.^s. .15, p. 
 474.— s. 14, p. 475, 479, 480.— s. 9, p. 486.— s. 1, p. 490— s. 9, p. 505.— s. 1, p, 
 506.— s. 9, p. 508.— ss. 5, 8, p. 534.— ss. 8, 23, p. 546.— ss. 1, 5, 6, p. 555.— s. 5, 
 p. 556— ss. 5, 7, p. 563.— s. 24, p. 576— s. 18, p. 578.— s. 19, p. 591.— s. 20, 
 p. 592, 594, 595— s. 22, p. 602.— ss. 20, 21, p. 606.— s. 1, p. 610, 613— s. 29, 
 p. 618.— s. 9, p. 628.— s. 11, p. 629.— s. 10, p. 630. 
 
THE NEW SYSTEM 
 
 PROCEDURE AND PLEADING IN CRIMINAL CASES 
 
 FOB 
 
 INDICTABLE OFFENCES. 
 
 Indictable offences comprise every species of treason, all felonies 
 at common law or by statute, all misdemeanors of a public nature at 
 common law, and all misdemeanors created by statute for which the 
 remedy by indictment is appointed expressly or by necessary implica- 
 tion. [1] 
 
 [1] At common law there were two kinds of treason : high treason, under which were col- 
 lected the compassing of the king's death, the comforting of the king's enemies, the counter- 
 feiting of the privy seal, the forging of the king's coin, and the slaying of the king's justices; 
 secondly, petit treason, comprising similar offences arising in private life, such as the slaying 
 by a wife of her husband, and by, an ecclesiastic of his ordinary. 
 
 In the United States, petit treason, as a distinct class of offences, is no longer recognized ; 
 and high treason, under the constitutions both of the federal union and the several states, is 
 limited to the levying war against the supreme authority, or adhering to its enemies, giving 
 aid and comfort. 
 
 The term felony appears to have been long used to signify the degree or class of crime 
 committed, rather than the penal consequences of the forfeiture occasioned by the crime, ac- 
 cording to its original signification. Capital punishment does by no means enter into the 
 true definition of felony : but the idea of felony is so generally connected with that of capital 
 punishment, that it is hard to separate them ; and to this usage the interpretations of the law 
 have long conformed. With regard to felonies enacted by statute, it seems clear that not , 
 only those crimes which are made felonies by express words, but also all those which are 
 decreed to have or undergo judgment of life or member, by any statute, become felonies 
 thereby, whether the word "felony" be mentioned or omitted. And where a statute de- 
 clares that an offender shall, under the particular circumstances, be deemed to have feloni- 
 ously committed the act, it makes the offence a felony, and imposes all the common and or- 
 dinary consequences attending a felony. 1 Russel on Crim. Law, 43. 
 
 In this country, by the statutes of most of the states, felony is construed to mean an of- 
 fence for which the offender, on conviction, is liablo to be punished with death, or imprison- 
 ment in the state prison or penitentiary. In Virginia, it comprehends all offences below 
 treason, which occasioned a forfeiture of property at common law, all offences so denomina- 
 ted by statute, and all to which statutes have annexed capital punishment or imprisonment 
 in the penitentiary, excepting those which, though subjected to the latter punishment, are 
 or may be declared misdemeanors by statute. 
 
 1 
 
1 PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 
 
 If a statute prohibit a matter of public grievance to the liberties and 
 security of the subject, or command a matter of public convenience, 
 such as the repairing of the common streets of a town, or the like, — an 
 offender against such a statute is punishable, not only by any party ag- 
 grieved, but by indictment for his contempt of the statute, unless that 
 mode of proceeding appear manifestly to be excluded by the statute.(a) 
 But if a statute extend only to private persons, — or if it extend to all 
 persons in general, but chiefly concern disputes of a private nature, 
 such as distresses by lords on their tenants, or the like,— there an in- 
 dictment will not lie.(i) If a statute enjoin an act to be done, without 
 assigning any punishment for the not doing of it, there an indictment 
 will lie for disobeying the injunctions of the statute ;(c) and this mode 
 of proceeding by indictment will not be taken away by a subsequent 
 statute, assigning a particular punishment for the disobedience, {d) un- 
 less by express negative words, or by necessary implication. So, if the 
 statute forbid the doing of a thing, without assigning any punishment 
 for it, the doing of it wilfully is an indictable offence, and punishable 
 as a common law misdemeanor.(e) Even if a statute, creating a new 
 offence, which was not prohibited by the common law, assign a partic- 
 ular punishment and mode of proceeding for it, but not in the same 
 [*2] clause which created the offence, an indictment will lie,- as *for a 
 common law misdemeanor ; per Dennison, J. ;(g) -and a fortiori is it 
 
 (a) 2 Hawk. c. 25, a. 4. 831 ; B. v. Bakne, Cowp. 648. 
 
 (J) Id. (e) B. y. Sainsbwy, 4 T. R. 451. 
 
 (c) B. v. Davis, Sayer, 133. (g) 1 Burr. 545. 
 
 (d) Doug. 441, 446 ; B. v. Boyal, 2 Burr. 
 
 Misdemeanors inelude all offences lower than felonies, which may be the subjects of in- 
 dictment. They are divided into such as are mala in se, or penal at common law, and such 
 as are mala prohibita or penal by statute. "Whatever, under the first class, mischievously 
 affects the person or property of another, or openly outrages decency, or disturbs public or- 
 der, or is injurious to public morals, or is a breach of official duty, when done corruptly, is 
 the subject of indictment. Black. Com. 65, w. ; 1 Hawk. P. C. c. 5, s. 1; 1 East P. C. c. 1, 
 s. 1 ; 1 Russel on Crimes, 46. 
 
 Misdemeanors which become penal by statute, are of two kinds : — first, those which con- 
 sist in the commission or omission of an act enjoined or forbidden by statute, though by such 
 statute such omission or commission is not made the subject of indictment ; and secondly, 
 those which consist of omission or commission of any act which, by itself, is made specially 
 indictable. 
 
 In England, when a misdemeanor at common law is created a felony by statute, the mis- 
 demeanor is merged, and cannot be prosecuted as such. Bex v. Cross, 1 Ld. Raym. 711 ; 
 3 Salk. 193. And this doctrine is also held in Pennsylvania. Com. v. Gable, 1 Serg. & 
 Rawle, 423, per Tilghman, C. J. But in New York, Massachusetts and Ohio, it is said, that 
 as the reason for the English rule does not there apply, the rule itself does not hold; and it 
 is accordingly held that if the evidence, in an indictment in such case, does not make good 
 the felony, the word feloniously may be rejected, and judgment had for the constituent mis- 
 demeanor. People v. Jaclcson, 3 Hill, 92 ; People v. White, 22 "Wend. Rep. 176 ; Com. v. 
 Squire, 1 Mete. 258 ; People y. Hess, 5 Ohio, 1. 
 
PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 2 
 
 so, where the punishment is assigned or the mode of proceeding is directed 
 by a subsequent statute.(a) But if the mode of proceeding or punishment 
 be directed by the same section or clause creating the offence, that pun- 
 ishment alone must be inflicted, or that mode of proceeding adopted, 
 which the statute directs ;(b) yet even in such a case, if the statute di- 
 rect that the prosecutor shall proceed in a certain way, " or otherwise," 
 an indictment will lie.(c) [1] Or, if an offence at common law have a 
 further or additional punishment assigned to it by statute, the prosecu- 
 tor may still indict as for the common law offence ; and his concluding 
 his indictment contra formam staluti, will not prevent him from main- 
 taining it as an indictment at common law.(cQ[2] So, if the law cast a 
 public duty upon a person, and he refuse or neglect to perform it, — as 
 if a man be appointed to a public office, and be refuse to undertake or 
 perform the duties of it, he may be indicted and punished as for a com- 
 mon law misdemeanor.(e) So, if he refuse to obey the order of a ma- 
 gistrate or court of quarter sessions, he may be indicted. [3] 
 
 (o) Doug. 441, 446. (d) 2 Hawk. c. 25, s. 4. 
 
 (6) 2 Hawk, a 25, a. 4. (e) See R. v. George, Cowp. 13. 
 
 (e) Id. 
 
 [1] The New York Revised Statutes contain *■ provision that when the performance of 
 an act is prohibited by any statute, and no penalty for the violation of such statute is im- 
 posed, either in the same section containing the prohibition, or in any other section or stat- 
 ute, the doing such act shall be deemed »■ misdemeanor. 2 N. Y. Rev. Stat. 696, sec. 39. 
 Hence, it follows, that if in the same section, or in any other section or statute, a penalty is 
 imposed for the violation of such statute, an action at law for such penalty is the exclusive 
 remedy for such violation, and no indictment will He. 
 
 [2] State v. Moore, 9 Yerg. 353 ; Turnpike Road v. People, 15 Wend. Rep. 267. But in 
 Pennsylvania, the law is different. It is there provided, that "In all cases where a remedy 
 is provided, or a duty enjoined, or anything directed to be done by any act or acts ef assem- 
 bly of this commonwealth, the directions of the said acts shall be strictly pursued, and no 
 penalty shall be inflicted, or anything done agreeably to the provisions of the common law, 
 in such cases, further than shall be necessary for carrying sueh act or aots into effect." Aot 
 of 21st March, 1806, sec. xiii. ; 4 Smith's Laws, p. 332. It has been held by the courts, in 
 conformity with this act, that wherever a mode of procedure is attached to a specific -offence 
 by any act of assembly, the common law remedy is abrogated, and the indictment and sen- 
 tence must pursue the act. 3 Serg. & Rawle, 273; 1 RaWle, 290; 3 Pen. Rep. 180; 3 
 Watts, 330 ; 5 Rawle, 64 ; Wharton, 357. It was even held, that where an act of assem- 
 bly gave a penalty to the party injured by the extorsive and corrupt conduct of a magis- 
 trate, which penalty was to be recovered in a civil suit, the offence ceased to be indictable 
 at common law. Com. v. Evans, 13 Serg. & Rawle, 326. But it seems that the act in ques- 
 tion only applies when a specific method of procedure is directed by act of assembly; for 
 when a new penalty is attached to a common law offence, then the indictment may still be 
 at common law, though in case of conviction, no other than the statutory punishment can 
 be inflicted. Thus, where an act of assembly provided a new punishment for murder, it 
 was held, that though by so doing, the act of 21st March, 1806, prevented any other than 
 the statutory punishment from being imposed, yet the indictment would still lie at common 
 law, and that it was not necessary for it to conclude contrary to the act. Com. v. White, 6 
 Binney, 179 ; See Whart. Crim. Law, p. 7 and 8. 
 
 [3] It has been held indictable to destroy a horse, (Resp. v. Teisclier, 1 Dallas, 335 ; State 
 
2 — 1 PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 
 
 Having thus stated, shortly and generally, what offences are indict- 
 able, I shall now proceed to state the mode of proceeding against per- 
 
 v. Council, 1 Tenn. 305,) or a cow, (Com. v. Leach, 1 Mass. 69 ; Peopk v. Smith, 5 Cow. 218,) or 
 any beast whatever, which may tie property of another; (Loomis v. Edgerton, 19 Wend. 420 ; 
 State v. Wheeler, 3 Term. 344;) to be guilty of wanton cruelty to animals in general, (State 
 v. Briggs, 1 Aik. 226 ;) to cast the carcass of an animal in a well in daily use, (State v. Bitck- 
 •man, 8 New Hamp. 203 ;) to poison chickens ; tear up fraudulently a promissory note, or 
 maliciously break windows, (Resp. v. Teischer, 1 Dallas, 335 ;) to mischievously set fire to a 
 number of barrels of tar, belonging to another, (State v. Simpson, 2 Hawkes, 460 ;) to girdle, 
 or otherwise maliciously injure trees kept either for use or ornament, (Com. v. Eckert, 2 
 Browne, 251 ; Loomis v. Edgerton, 19 Wend. 420 ; per contra, Brown's case, 3 Greenl. 177 ;) 
 to discharge a gun, with the intention of annoying and injuring a sick person in the imme- 
 diate vicinity, (Com. v. Wing, 9 Pick. 1;) and to break into a room with violence for the 
 same purpose, (Com. v. Taylor, 5 Binney, 277 ;) though it is not an indictable offence to re- 
 move a stone from the bouudary-line between the premises of A. & B., with intent to injure 
 B. State v. Burroughs, 2 Halst. Rep. 220. It has been held indictable to drive a carriage 
 through a crowded street, in such a way as to endanger the lives of the passers by, (United 
 States v. Eairt, 1 Peters' C. C. Rep. 390 ;) to disturb a congregation when at religious wor- 
 ship ; to go about armed with dangerous and unusual weapons, to the terror of citizens, 
 (State v. Huntley, 3 Ired. N. C. R. 418 ; though see per contra, State v. Simpson, 5 Terger's 
 Tenn. Rep. 356, Peck, J., dissenting ;) to raise a liberty pole, in the year 1794, as a notorious 
 and riotous expression of ill-will to the government, (Penn. v. Morrisson, Addison's Pa. Rep. 
 274;) to tear down, forcibly and contemptuously, an advertisement set up by the commis- 
 sioners, of a sale of land for county taxes, (Penn. v. Gillespie, Addison's Pa. Rep. 267 ;) to 
 agree to fight, though no fight takes place, (State v. Mitchins, 2 Harrington's Del. Rep. 527 ;) 
 to challege another to fight with dangerous weapons, (State v. Taylor, 3 Brevard's S. C. Rep. 
 243 ;) to break into a house in the day-time, and disturb its inhabitants, ( Com. v. Taylor, 5 
 Binney, 281;) to violently disturb a town-meeting, though the parties engaged were not 
 sufficient in number to amount to riot, (Com. v. Eoxey, 16 Mass. 385 ;) to kidnap another, 
 (State v. BolUns, 8 N: Hamp. Rep. 550;) to cast a dead body into a river without the rites 
 of Christian sepulture, (Kanavcm's case, 1 Greenl. 226 ;) to be guilty of eaves-dropping, (State 
 v. Williams, 2 Tenn. 108 ;) to sell unwholesome provisions, (State v. Smith, 3 Hawkes, 378 ; 
 1 Ired. 40 ;) to disinter a dead body, ( Com. v. Cooky, 10 Pick, 37 ;) to give more than a sin- 
 gle vote at an election, (Com. v. Salsbee, 9 Mass. 417 ;) to be guilty of individual offensive 
 drunkenness, (Smith v. State, 1 Hum. Tenn. Rep. 396;) to indulge publicly in profane 
 swearing, (State v. Kirhy, L Murphy, 254 ; State v. Ellow, 1 Dev. 267 ;) to publicly and blas- 
 phemously revile the Christian religion, which is part of the common law of the land, (Peo- 
 ple v. Boggles, 8 Johns. 290 ; Com. v. Knedcmd, 20 Pick, 206 ; Thacher, C. C. 346 ; Com. v. 
 Updegraph, 11 Serg. & Rawle, 394; State v. Chandler, 2 Harring. 553 ;) to commit any act 
 which, from its nature, must prejudicially affect the morals and health of the community, 
 (Com. v. Sharpless, 2 Serg. & itawle, 91 ; Resp. v. Teischer, 1 Dallas, 335 ; People v. Smith, 
 7 Cow. 258 ;) to lie in wait near a jail, by agreement with a prisoner, and to carry him away, 
 (People v. Washburn, 10 Johns. Rep. 160 ;) to send threatening letters, (U. S. v. Ravara, 2 
 Dallas, 299;) to challenge another to fight with fists, (Com. v. Whitehead, 2 Boston Law 
 Rep. 148 ;) to challenge another to fight under any circumstances, though not in such a way 
 as to constitute the statutory offence, (State v. Farrier, 1 Hawkes, 487 ; State v. Taylor, 3 
 Brevard, 243 ;) to even intimate to another a desire to fight with deadly weapons, ( Com. v. 
 Tibbs, 1 Dana, 524 ;) fornication has been held indictable, (State v. Cox, N. C. Term Rep. 
 165 ;) and adultery, (Com. v. Call, 21 Pick. 509 ; State v. Wallace, 9 N. Hamp. 518 ; though 
 see Aderson v. Com., 6 Rand. 627, and State v. Brownson, 2 Bailey, 149;) and it has been 
 held a misdemeanor, to solicit another to commit adultery, (State v. Avery, 7 Conn. 267;) 
 and to notoriously haunt houses of ill-fame. Brooks v. State, 2 Terg. 482. 
 
PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 2 — 2 
 
 sons charged with or suspected of having committed them, as regulated 
 by the recent statutes. And I propose to do so under the following 
 heads : — 
 
 Part I. Proceedings fob Indictable Offences. 
 
 II. Indictment and Evidence in particular Cases. 
 
 PART I. 
 
 PROCEEDINGS FOE INDICTABLE OFFENCES. 
 
 I propose to treat, of this part of the work, under the following 
 heads: — 
 
 Chapter 1. Persons capable of committing Indictable Offen- 
 ces, and the Degree in which thet mat be 
 Guilty. 
 
 2. Apprehension of the Offenders. 
 
 3. The Indictment and Pleadings. 
 
 4. Evidence. 
 
 5. The Trial, &c. 
 
C*3] *OHAPTEE I. 
 
 PERSON'S CAPABLE OF COMMITTING INDICTABLE OFFENCES, AND THE DE- 
 GREE IN "WHICH THEY MAT BE GUILTY. 
 
 Section I. What persons are punishable or excusable for 
 ceime, p. 3. 
 
 (a) Infants, p. 3. 
 
 (b) Idiots and Lunatics, p. 4. 
 (e) Wife, p. 6. 
 
 (d) Ambassadors and their Servants, p. 8. 
 
 (e) Aliens, p. 8. 
 
 (/) Corporations, p. 8. 
 
 iff) Persons offending from chance, mistake, &c, p. 9. 
 (h) Persons offending through compulsion, p. 10. 
 (i) Persons who are the innocent agents of others, p. 10. 
 Section II. Degrees of guilt, p, 11. 
 
 (a) Principals, p. 11. 
 
 (b) Accessories before the fact, p. 14. 
 
 (c) Accessories after the fact, p. 17. 
 
 (d) Persons who solicit and incite others to commit offences 
 
 which are not afterwards committed, p. 19. 
 
 (e) Persons who attempt to commit crimes, but do not com- 
 
 plete them, p. 20. 
 
 SECTION I. 
 
 WHAT PERSONS ABE PUNISHABLE OR EXCUSABLE FOB CRIME. 
 
 (a) Infants. 
 
 An infant, according to the legal acceptation of the term, is a person 
 under twenty-one years of age.[l] At and above the age of fourteen, 
 
 [1] The full age of man or woman, by the law, is twenty-one years, under which a per- 
 son is termed an infant. 1 Blk. Com. 463 ; 1 Russ. on Or. 2. It is completed on the day 
 preceding the anniversary of the person's birth. Infants under the age of discretion, (that is, 
 when too young to distinguish between right and wrong,) ought not to be punished by any 
 criminal prosecution whatever. 4 Blk. Com. 23. 'With regard to all crimes and offences, 
 it is considered in law, that the capacity of doing ill or contracting guilt, is not so much 
 measured by years or days, as by the strength of the delinquent's understanding and judg- 
 ment. 
 
INFANTS. 3 
 
 an infant may be convicted of any offence, except those which consist 
 of a non-feasance merely, such as the not apprehending persons com- 
 mitting felonies, or the like.(a)[l] 
 
 Under seven years of age, he cannot be convicted of felony ; (6) [2] 
 and under fourteen he cannot be convicted of rape,(e) or of carnally 
 knowing a girl under the age of ten, or between the age of ten and 
 twelve, although he may have arrived at the age of puberty, and be 
 capable of committing the offence ;(d) but he may be convicted as for 
 an indecent assault. Between the ages of seven and fourteen, however, 
 although presumed by law not to be doli capax, yet that presumption 
 may be rebutted by evidence of circumstances, showing clearly that the 
 infant was, at the time of committing the offence, capable of discern- 
 ing between good and evil ; and in such a case, he is as amenable for 
 offences (excepting rape and offences of that description, and also of- 
 fences of omission as above mentioned) as if he were of full age. [3] 
 
 (o) 1 Hale, 21, 22, 25 ; 3 Bao. Abr. 581, (c) 1 Hale, 630. 
 
 591. {d) B. v. Jordan, 9 Car. & P. 366. 
 
 (6) 1 Hale, 21, 28. 
 
 [1] As intimated in the text, an infant in some misdemeanors is privileged by reason of 
 his non-age, even though he be over fourteen ; for instance, if the offence charged be a mere 
 non-feasance, as not repairing a bridge or a highway, and other similar offences. In these 
 cases, not having the command of his fortune till twenty-one, he wants the capacity to do 
 those things which the law requires, and his laches shall not be imputed to him. 4 Blk. 
 Com. 22. But where there is a notorious breach of the peace, a riot, a battery, or the like, 
 for these an infant is equally liable to suffer as a person of the full age of twenty-one. 
 
 [2] An infant under the age of seven years, cannot commit a crime, for within that age 
 the law regards him as doli mcapax, (incompetent to discern evil,) and as not being endow- 
 ed with any sort of discretion. No evidence is admissible to contradict this legal presump- 
 tion ; and all persons under seven years of age, are absolutely exempted from criminal pro- 
 secutions, without regard to their mental capacity. 4 Blk. Com. 23 ; 1 Russ. on Or. 2. 
 
 [3] Infants above seven years of age, and under fourteen, are said to be within the age 
 of possible discretion ; during which time they may or may not be guilty of crime, according 
 to their natural capacity or incapacity. The presumption, where the offender is under the 
 age of fourteen, is, that he has not a sufficient sense of right and wrong to be capable of 
 committing crime. But this presumption, like most others, may be overcome by counter 
 evidence, and by circumstances. For the capacity of doing ill, or contracting guilt, is not 
 so much measured by years and days, as by the strength of the delinquent's understanding. 
 One lad, eleven years old, may have as much cunning as another of fourteen; and in these 
 cases the maxim is, that malice supplies age. 4 Black. Com. 23 j 4 Car. & P. 236. And see 
 1 Wheel. Crim. Eec. 230, 23], and note. The intellectual capacity of the child may be pro- 
 ved by the testimony of witnesses. Per Southard, J., 1 South. Rep. 231. Thus, it is said 
 that an infant of seven (1 Ashm. Rep. 248,) or eight years of age may be indicted for mur- 
 der, and shall be hanged for it. Dalt. Just. eh. 141 ; Arch. Cr. PI. 11 ; 1 Russ. on Cr. 3. 
 And an infant between the ages of eight and nine years has been executed for arson — it ap- 
 pearing that he was actuated by malice and revenge, and had perpetrated the offence with 
 craft and cunning. 1 Hale's P. C. 25 ; Arch. Cr. PI. 11 ; 1 Russ. on Or. 3 ; 4 Black. Com. 
 24. So a girl of thirteen was burnt for killing her mistress. 1 Hale's P. 0. 26. Wii^h re- 
 gard to the maxim that malice svpplies age, it seems agreed among all the writers on criminal 
 law, that before an infant under fourteen is presumed capable of committing a crime, the 
 
3—1 PERSONS PUNISHABLE OR EXCUSABLE EOR CRIME. 
 
 Thus, a girl of thirteen was executed for killing her mistress.(a) A 
 boy of ten, and another of nine, who had killed their companion, have 
 been sentenced to death, and he often years actually hanged", because, 
 upon their trials, it appeared that the one hid himself, and the other 
 hid the body he had killed, which hiding manifested a consciousness 
 of guilt, and a discretion to discern between good and evil.(J) 
 
 And there was an instance in the seventeenth century, where a boy 
 of eight years old was tried at Abingdon, for firing two barns, and it 
 appearing that he had malice, revenge and cunning, he was found guilty 
 and hanged, (c) 
 
 And in 1748, a boy of ten years old, indicted for the murder of a 
 girl of five, was found guilty and sentenced to be hanged : the girl was 
 found buried in a dung-heap, cut and mangled in a most barbarous 
 and horrid manner ; and as the boy and girl were companions and slept 
 together, he was charged with the offence, but he denied it ; after- 
 [*4] wards, *however, he confessed it, and, according to his confes- 
 sion, it appeared that he had carried the girl from the bed to the 
 dung-heap, and there killed her, cutting and mangling her in the man- 
 ner above mentioned, then dug a pit for the body in the heap, and having 
 placed the dung and straw which was bloody under the body, he cov- 
 ered it up with what was cleanj and having done so, he got water and 
 washed himself as clean as he could. As the judge who tried him did 
 not wish to leave him actually for execution, before he had consulted 
 the other judges on the subject, he reprieved him; and a report of the 
 facts being afterwards laid before all the judges, they were unanimously 
 of opinion that there were so many circumstances stated in the report, 
 which were undoubted tokens of what Lord Hale (d) called a " mischie- 
 vous discretion ;" that the prisoner was certainly a proper object for 
 capital punishment, and ought to suffer, " for it would be of very dan- 
 gerous consequence to have it thought that children may commit such 
 atrocious crimes with impunity ; there are many crimes of the most 
 heinous nature, such as the murder of young children, poisoning pa- 
 rents or masters, burning houses, or the like, which children are very 
 capable of committing, and which they in some circumstances may be 
 under strong temptations to commit ; and, therefore, although taking 
 away the life of a boy ten years old may savour of cruelty, yet, as the 
 example of this boy's punishment may be the means of deterring other 
 children from the like offences, and as the sparing this boy merely on 
 
 (o) 1 Hale, 26. (c) Evelyn on 1 Hale, 25 ; 4 Bl. Com. 24. 
 
 (J) 1 Hale, 26, 2t ; 4B1. Com. 23. (d) 1 Hale, 630. 
 
 evidence of mischievous discretion should be strong and dear, beyond all doubt and contra- 
 diction. 1 Russ. on Or. 3 ; 1 Black. Com. 24; Arch. Cr. PI. 11 ; 4 Car. & P. 236 ; 1 Wheel. 
 Crim. Rec. 230, 231, and note ; 1 Ash. 248. 
 
INFANTS. 4 
 
 account of his age, will probably have a quite contrary tendency, in 
 justice to the public, the law ought to take its course."(«) [1] 
 
 (a) York's case, Fost. 70. 
 
 [1] By the civil law, the period of entire majority was twenty-five. As to matters of 
 crimes and criminal punishment, especially that of death, the civil law distinguishes the age 
 of minors into three periods — Infantia, from the birth until seven years of age ; Pueritia, 
 from seven to fourteen years of age ; and Pubertas, from fourteen years and upwards. In- 
 deed, pubertas plena is eighteen years. Dig. lib. 1, tit. 7, de Adoptionibus, c. 40, sec. 1, 
 Inst. eod. tit. see. 4. The period of pueritia is again sub-divided into two equal parts. 
 From seven years to ten and a half is cetas infantix proximo,. From ten years and a half 
 until- fourteen is cetas pubertate proxma. Fourteen years is the age of pubertas in relation 
 to crimes and punishments. With respect to the first age, infantia or infancy, which lasts 
 to the period of seven years within that age and the next period of cetas infanUae proximo,, 
 that is, to ten years and a half, there could be no guilt of a capital offence, and therefore the 
 infant could not be punished, infants of that age being considered doli incapaces. Dig. lib. 
 4V, tit. 12, de Sepulchro violate, lib. 3, sec. 1. The next period of pueritia was from ten 
 years and a half until fourteen, being the age pubertati proxima. Within this period the in- 
 fant was prima facie considered doli capax, and so might be punished for a capital offence, 
 but with a power in the judge to mitigate the rigor of the sentence on account of the youth 
 of the offender. Dig. lib. 4, tit. 4, de Minoribus, c. 37, sec. 1, in Delictis. Fourteen years 
 was full age as to responsibility in relation to crimes and punishment. Dig lib. 29, tit. 5, 
 de Senatus-Consulto Silaniano, sec. 32. 
 
 The English common- law fixes the majority-for both sexes, at twenty-one; and that age 
 is completed on the beginning of the day preceding the anniversary of the person's birth. 
 The age of twenty-one is the period of absolute majority throughout the United States, 
 ' though female infants, in some of them, are deemed of age at eighteen. 2 Kent, 233. The 
 Revised Statutes of Ohio declare that all female persons of the age of eighteen years and up- 
 wards, "shall be, to all intents and purposes, held and considered to be of full age, any law 
 or custom to the contrary notwithstanding. E. S. ch. 59. In Vermont, that section of the 
 bill of rights in the constitution of the state, which declares involuntary servitude illegal, 
 and not allowable after males arrive at the age of twenty-one, and females at the age of 
 eighteen years, has always been considered as fixing the age of majority of females at eigh- 
 teen years. 9 Verm. Pep. 179. 
 
 Infants under the age of discretion are not punishable for criminal 'offences. What the 
 age of discretion is, in various nations, is a matter of some variety. 
 
 By the ancient Saxon law, the age of twelve years was established for the age of possible 
 discretion, when first the understanding might open ; and from thence till the offender was 
 fourteen he might or might not be guilty of a crime, according to his natural capacity or in- 
 capacity. This was the dubious stage of discretion : but under twelve, it was held that he 
 could not be guilty in will, neither after fourteen could he be supposed innocent of any capi- 
 tal crime which he in lact committed. lb. 23. 
 
 By the law, as it now stands, the capacity of doing ill, or contracting guilt, is not so much 
 measured by years and days as by the strength of the delinquent's understanding. Until, 
 however, an infant arrives at the age of seven years, he cannot be guilty of a crime. From 
 seven to fourteen, he is within the age of possible discretion, and may or may not be capable, 
 according to circumstances ; the presumption of want of discretion diminishing with the ad- 
 vance of the offender's years, and depending also somewhat upon the particular facts and 
 circumstances of his case. The evidence of malice, which is to supply age, should be strong 
 and clear ; and then, if it appear that the offender could discern between good and evil, he 
 may be found guilty. 1 Hale, 19, 20, 25, 27 ; 1 Hawk. c. 1, sec. 1 ; Arch. Cr. Law, 13 ; 4 
 Black. 23; 1 Wheeler's Cr. Gas. 231. 
 With regard to felonies, the rule is definite and uniform. All the authorities conour that 
 
 2 
 
4—1 PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 
 
 See as to the summary conviction of juvenile offenders, post,- ch. 2,. 
 sec. 4. 
 
 under the age of seven years, an infant cannot be punished, for any felony committed by 
 him; for the law presumes that in such case, a felonious discretion cannot.exist, and against 
 this presumption, no averment shall be admitted. 1 Hale's P. C. 27, 28 j 4 Bl. Com. 23. 
 But on attaining the age of fourteen, the criminal acts of infants are subject to the same 
 construction and punishment as are those of persons of full age, being then presumed to be 
 capable of distinguishing between right and wrong. In the interval between the ages of 
 seven and fourteen years, they are deemed incapable of contracting^guilt. If, however, it 
 clearly appear that they could discriminate between good and evil, they may be convicted 
 and punished. The maxim in such cases is, "malice supplies age ;" but the evidence of mal- 
 ice which is to supply age, must be clear beyond all contradiction. 
 
 In England, an infant of the age of nine years, having killed an infant of the like age, 
 confessed the felony : and, upon examination, it was found that he had hid the blood and 
 the body. The justices held that he ought to be hanged, but they respited the execution 
 that he might have a pardon. Another infant, of the age of ten years, who had killed his 
 companion and hid himself, was, however, actually hanged, upon the ground that it ap- 
 peared by his hiding, that he could discern between good and evil ; and maUtia swpplA ceta- 
 tem. Spigwnal's case, 1 Hale, 26; Fitz. Rep. Gorone, 118. And a girl of thirteen waa 
 burnt for killing her mistress. Alice de Waldborough's case, 1 Hale, 26. "Whenever a per- 
 son under the age of fourteen is charged with committing a felony, the proper course is to 
 leave the case to" the jury to say whether, at the time of committing the offence, such per- 
 son had guilty knowledge that he was doing wrong. Rex v. Owen, 4 C. & P. 236, Little- 
 dale, J. 
 
 In the case of" rape, the law presumes that an infant under the age of fourteen years, is 
 unable to commit the crime ; and therefore he cannot be guilty of it ; {Sex v. Groombridge, 
 1 C. & P. 582, Gaselee, J., after consulting Lord Abinger, C. B., as to whether the words 
 " every person" in the 9 Geo. 4, ch. 31, sec. 16, altered the former law. So an infant cannot 
 be guilty of an assault with intent to commit a' rape. Rex v. Eldershaw, 3 C. & P. 396, 
 Vaughan, J.) but this is upon the ground of impoteney rather than the want of discretion ; 
 for he may be a principal in the second degree, as aiding and assisting in this offence as 
 well as in other felonies, if it appear by sufficient circumstances that he had a mischievous 
 discretion. And the legal presumption that an infant under the age of fourteen years, is in- 
 capable of committing the crime of rape, may be rebutted by proof that he has arrived at 
 the age of puberty. Williams v. The State,, 14 Ohio Rep. 222. - 
 
 The following is an important case as to the capability of an infant of ten -years old being 
 guilty of the crime of murder ; and as to the expediency of visiting such an offender with 
 capital punishment. 
 
 At Bury summer assizes, 1148, "William York, a boy of ten years of age was convicted, 
 before Lord Chief Justice Willes, for the murder of a girl about five years of age, and received 
 sentence of death ; but the Chief Justice, out of regard to the tender years of the prisoner, 
 respited execution till he should have an opportunity of taking the opinion of the rest of the 
 judges, whether it was proper to execute him or not,. upon the special circumstances of the 
 case, which he reported to the judges at Serjeant's Ion. 
 
 The boy and girl were parish children, put under the care of a parishioner, at whose 
 house they were lodged and maintained. On the day the murder happened, the man of 
 the house and his wife went out to their work early in the morning, and left the. children in 
 bed together. "When they returned from work, the girl was missing; and the boy, being 
 asked what had become of her, answered that he had helped her up and put on her clothes, 
 and she had gone lie knew not whither. Upon this, strict search was made in the ditches 
 and pools of water near the house, from an apprehension that the child might have fallen 
 into the water. During this search, the man, under whose care the children were, observed 
 that a heap of dung near the house had been newly, turned up ; and, upon removing the 
 upper part of the heap, he found the body of the child about a foot's depth under the sur- 
 
IDIOTS AND LUNATIOS. 4 — 2 
 
 (b) Idiots and- Lunatics. 
 
 Idiots are persons who have been permanently of non-sane memory 
 from their birth ; lunatics, persons who labor at times under temporary 
 
 face, cut and mangled in a most barbarous and horrid manner. Upon this discovery, the 
 boy, -who was the only person capable of committing the fact, that was left at home with 
 the child, was charged with the fact, which he stiffly denied.. When the coroner's jury 
 met, the boy was again charged, but persisted still to deny the fact. At length, being 
 closely interrogated, he fell to crying, and said he would tell the whole truth. He then 
 said that the child had been used to, foul herself in bed ; that she did so that morning, 
 (which was not true, for the bed was searched, and found to be clean,) that thereupon he 
 took her out of the bed and carried her to the dung heap, and with a large knife, which he 
 found about the house, cut her in the manner the body appeared to be mangled, and buried 
 her in the dung-heap ; placing the dung and straw that was bloody under the body, and 
 covering it up with what was clean ; and having so done, he got water and washed himself 
 as clean as,he could. The boy was the next morning carried before a neighboring justice 
 of the peace, before whom he repeated his confession, with all the circumstances he had re- 
 lated to the coroner and his jury. The justice of the peace very prudently deferred proceed- 
 ing to a commitment, until the boy should have an opportunity of recollecting himself. 
 Accordingly he warned him of the danger he was in if he should be thought guilty of the 
 tact he stood charged with, and admonished him not to wrong himself: and then ordered 
 him into a room where none of the crowd that attended should have access to him When 
 the boy had been some hours in this room, where victuals and drink were provided f8r him, 
 he was brought a second time before the justice, and then he repeated his former confes- 
 sion : — upon which he was committed to jail. 
 
 On the trial, evidence was given of the declarations before mentioned to have been made 
 before the coroner and his jury, and before the justice of the peace ; and of many declara- 
 tions to the same purpose which' the boy made to other people after he came to jail, and 
 even down to the- day of his trial ; for he constantly told the same story in substance, com- 
 monly adding that the devil put him upon committing, the fact. Upon this evidence, with 
 some other circumstances tending to corroborate the confessions, he was convicted. 
 
 Upon this report of the chief justice, the judges, having taken time to consider of it, 
 unanimously agreed, 1. That the declarations stated in the report were evidence proper to 
 be leftto the jury. 2. That, supposing the boy to have been guilty of this fact, there were 
 so many circumstances stated in the report which were undoubtedly tokens of what Lord 
 Hale calls mischievous discretion, that he was certainly a proper subject for capital punish- 
 ment, and ought to suffer ; for it would be of very dangerous consequence to have it thought 
 that children may commit such atrocious crimes with impunity. That there are many 
 crimes of the most henious nature, such as (in the- present case) the murder of young 
 children, poisoning parents, or masters, burning houses, &c, which children are very capable 
 of committing ; and which they may iu some circumstances be under strong temptations to 
 commit ; and therefore, though the taking away the life of a boy of ten years old might 
 savor of cruelty, yet, as the example of that boy's punishment might be a means of deterring 
 other children from the like offences, and as the sparing the boy, merely on account of his 
 age, would probably have a quite contrary tendency, in justice to the public, the law ought 
 to take its course ; unless there remained any doubt touching his guilt. In this general 
 principle all the judges concurred : but two or three of them, out of great tenderness and 
 caution, advised the chief justice to send another reprieve for the prisoner; suggesting that 
 it might possibly appear, on further inquiry, that the boy had taken this matter upon him- 
 self at the instigation of .some person or other, who hoped by this artifice to screen the real 
 offender from justice. 
 
 Accordingly the chief justice granted one or two more reprieves ; and desired the justice 
 - of the peace who took the boy's examination, and also some otHer persons, in whose pru- 
 
4—3 PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 
 
 insanity, with lucid intervals ; and there are others who, born sane, 
 have become permanently insane from disease or other cause : and 
 
 denoe he could confide, to make the strictest inquiry they could into the affair, and report 
 to him. At length he, receiving no farther light, determined to send no more reprieves, 
 and to leave the prisoner to the justice of the law at the expiration of the last ; "but, before 
 the expiration of that reprieve, execution was respited till further order, by warrant from 
 one of the secretaries of state: and at the summer assizes, 1151, the prisoner had the benefit 
 of His Majesty's pardon, upon" condition of his entering immediately into the sea service. 
 Post. 70, etseq. 
 
 In New Jersey, a boy of twelve years of age, was convicted on his own confession, and 
 was sentenced and executed. 5 Halst. Rep. 163. . The court in this.case remarked: "At 
 the age of this defendant, sufficient capacity is generally possessed in our state, of society, 
 by children of ordinary understanding, and having the usual advantages of moral and re- 
 ligious instruction. Vou will call to mind the evidence on this subject ; and if you are 
 satisfied that he was able, in a good degree to distinguish between right and wrong ; to 
 know the nature of the crime with which he is charged ; and that it was deserving of severe 
 punishment, his infancy will furnish no obstacle, on the score of incapacity, to his con- 
 viction.'' 
 
 Such are the well established principles in regard to infants charged with the commission 
 of felonies. , In respect to the liability of infants under the age of twenty-one, to criminal 
 punishment for misdemeanors, the rule seems not to be so well settled. In the State v. 
 €forin, 9 Humphrey's Reports, 175, the defendant had been convicted of assault and battery, 
 in the .circuit court, by the verdict of a jury ; but the court refused to render judgment upon 
 the verdict, and discharged the defendant on the ground that she was only twelve years of 
 age, heing of opinion that a minor under the age of fourteen was not subject to criminal 
 punishment for misdemeanors, although possessed of sufficient capacity to distinguish be- 
 tween good and evil. 
 
 The Supreme Court say: "There is some confusion and apparent conflict in the books, 
 in "respect to the liability of an infant to criminal punishment, for misdemeanors, under the 
 age of twenty-one'. And so -far as our examination -has extended, no very definite or uni- 
 form rule seems to have been established. Blackstone (4, 22,) does not assert — nor do any 
 of the authorities to which we have had access — that an infant under the age of fourteen, if 
 possessed of sufficient capacity to discern good from evil, may not be punished in cases of 
 'misdemeanors involving violence and breaches of the peace; and we apprehend the author 
 did not intend to be so understood. The position laid down, as far as it goes, is unquestion- 
 ably correct, that infants above the age of fourteen are equally as liable as persons of full 
 age to conviction and punishment in such cases. But this authority does not establish the 
 conclusion attempted to be deduced from it, that under the age of fourteen an infant, re- 
 gardless of his capacity to commit crime, shall he exempt from punishment. It would seem 
 grossly absurd to hold, that an infant under the age of fourteen, if possessed of sufficient 
 capacity, may be convicted and punished, even with death ; but that in cases of breach of 
 the peace, or violent injuries to the person of another, he shall be permitted to escape, 
 though possessed of like capacity. Such distinction is inconsistent with reason ; it is also 
 in opposition to an admitted axiom of the law, that the higher the grade of the offence,, the 
 stronger should be the proof, not merely of the corpus delicti, but also of the capacity of the 
 offender ; and it is no less opposed to one of the chief ends of criminal jurisprudence, the 
 preservation of the public peace, and security of the persons of the citizens. In Dane's 
 Abr. vol. 6, p. 638, it is laid down, in accordance with what we understand to be the law, 
 that, ' for a breach of the peace, a riot, battery, &c, a minor above fourteen years may be 
 punished ; under seven years of age an infant cannot be guilty ; but between seven and 
 fourteen years of age the capacity only is regarded; hence one eight years of age may be 
 guilty and punished.' We are of opinion that the conviction was proper, and that the circuit 
 court erred in refusing to pronounce judgment, and in discharging the defendant." 
 
IDIOTS AND LUNATICS. 4—4 
 
 where, in any of these oases, the degree of insanity is such that the 
 party knows not whether he is doing right or wrong, he is not punish- 
 able for any offence he may commit whilst in' that state.(a)[l] 
 
 (a) R. v. Sigginson, 1 Car. & K. 129; 16 How. St. Tr. 764; Lord Ferrer's case, 19 
 
 M'Naughtm's case, where the opinions of the How. St. Tr. 947, 948; R. v. Offord, 6 Car. 
 
 judges were taken in the House of Lords; 1 & P. 168 R. v. Oxford, 9 Car. &, P. 525. 
 Car. & K. 130, n; R.v. Arnold, per Tracy, J., 
 
 In Sikes v. Johnson, (16 Mass. Rep. 389,) the question was, whether a feme covert or a 
 minor, might be charged as trespassers for having procured another to commit an assault 
 and battery. And it was holden they might, for all persons aiding and abetting, or counsel- 
 ling and procuring a trespass to be done, are principals, whether present or not. So are 
 those who afterwards assent to a trespass done for their benefit ; and there is no exception 
 in the law, in favor of femes covert or minors. "The cases cited to the contrary relate to 
 civil acts done by the command of persons not having capacity to make contracts ; and be- 
 cause such commands are in the nature of a c ntract, they are void. But trespasses are an- 
 alogous to crimes which femes covert^and minors may be answerable for, although hot pre- 
 sent at the commission of them.'' See Com. Dig. tit. Trespass ; 4 Black. 29. 
 
 [1] Every person at the age of discretion is, unless the contrary be proved, presumed by 
 Jaw to be sane, and to be accountable for his actions. But if there be an incapacity, or 
 defect of the understanding, as there <can be no consent of the will, so the act cannot be 
 culpable. This species of non- volition is' either natural, accidental or affected : it is either 
 perpetual or temporary ; and may be reduced to three general heads ; 1. A nativitate, vel 
 dementia natwralis; 2. dementia accidentalis vel adventitia ; 3. Dementia affectata. 
 
 1. Of the first, or dementia natwalis, is idocy or natural fatuity. An idiot is one who is 
 of non-sane memory from his birth, by a perpetual infirmity, without lucid intervals ; Co. 
 Litt 247 ; andthose are said to be idiots who cannot number twenty, tell the days of the 
 week, who do not know their fathers or mothers, or the like ; but these instances are men- 
 tioned as tests of sanity only, and are not always conclusive : and although idiocy or natu- 
 ral fatuity is in general sufficiently apparent, the question whether idiot or not, is a ques- 
 tion of fact, triable by the jury, Bac. Abr. Idiat, (A) ; Bro. Abr. Idiot, 4, and ought to 
 be clearly made out, in order to exempt the party from punishment. Rex v. Arnold^ 1 Russ. 
 9. One deaf and dumb from his birth, who has no means of learning to discriminate be- 
 tween right and wrong, or of understanding the penal enactments of the law, as applica- 
 ble to particular offences, is by presumption of law an idiot ; but if it can be shown that 
 he has the use of understanding, which many of that condition discover by signs, then he 
 may be tried, and suffer judgment and execution, although great caution should be observ- 
 ed in such proceedings. 1 Hale, 34 ; see R. v. Jones, 1 Leach, 102 ; R. v. Steel, Id. 451 ; 
 Dy. 25 ; Moor, 4, pi. 12 ; P. N. B. 233 ; R. v. Esther Dyson, cor. Parke, J., York Spr. Ass'. 
 1831 ; Mathew's Dig. 310. 
 
 An idiot is not, of course, capable of committing a crime; but to make a lack of natural 
 sense a valid excuse, we are not to suppose that the party must, in all cases come within 
 the strict definition given above. One may possess such a glimmering of reason " as to 
 show that he is riot, strictly speaking, an idiot, and still not have sufficient discretion and 
 judgment to enable him to distinguish between good and evil." The question, then to be 
 determined, with regard to such persons is, whether they possess enough reason to make them 
 capable of malicious discretion. 
 
 A man who is born deaf, dumb and blind, is considered, by law, as being in the condi- 
 tion of an idiot, and incapable of any understanding, as wanting all those senses which fur- 
 nish the human mind with ideas. 1 Black. Com. 304. This, however, is only a presump- 
 tion of law, and if it can be shown that a person in suoh a condition has the use of sufficient 
 understanding to render him capable of discriminating between right and wrong and of 
 
4r—5 PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 
 
 Even if a man of sound memory commit a capital offence, and before 
 arraignment he becomes insane, lie ought not to be arraigned for it, be- 
 cause he is not able to plead to it with that advice and caution 
 [*5] that he ought ; if, after he is *tried and found* guilty, he become 
 insane before judgment, judgment shall not be pronounced ; and 
 if, after judgment, he become insane, judgment shall be stayed.(a) [1] 
 
 (a) 1 Hale, 34 ; 4 Bl. Com. 24. 
 
 comprehending the penal enactments of the^w, he may be punished. 1 Hale, 34 ; Com- 
 monwealth v. Mitt, 14. Mass. Rep. 20T. 
 
 In Rex v. Dyson, (1 C. & B. 305 ; S. C. 1 Lewin's C. C. 64,) before Mr. Justice J. Parke, 
 in 1831, the prisoner was indicted for murder, and on being arraigned, stood mute. A jury 
 was then impannelled to try whether she did so by malice, or by the visitation of God, and 
 they found she did so by the visitation of God. The judge thereupon examined on oath, a 
 witness who was acquainted with the prisoner, and who swore that she could be made to 
 understand some thing by signs, and could give her answers by signs. The witness was 
 then sworn to interpret and make known to the prisoner, the indictment and charge against 
 her, and to the court her plea an answer thereto. The witness explained to her by signs, 
 what she was charged with, and she made signs which imported a denial of the charge, 
 whereupon the judge directed a plea of not guilty to be recorded. The witness, by direc- 
 tion of the court, then stated to her that she was to be tried by a jury, and that she might 
 object to such as she pleased 1 ; but he testified that it was impossible to make her compre- 
 hend a matter of that nature, although she might understand subjects, of daily occurrence, 
 which she had been in the habit of seeing. A jury was thereupon " impannelled and sworn 
 to try whether she was sane or not," and proof was given of "her incapacity at that time 
 to understand the mode of her trial, or to conduct her defence." The judge told the jury 
 that if they were satisfied that the prisoner had not then, from the defect of her faculties, in- 
 telligence enough to understand the nature of the proceedings against her, they ought to 
 find her not sane. The jury so found, and the prisoner was detained in close custody. A 
 similar case occurred in 1836, which was disposed of in the same way. Alderson, B., said 
 to the jury, "the question is, whether the prisoner has sufficient understanding to compre- 
 hend the nature of this trial, so as to make a, proper defence to the charge. Rex v. Pritch- 
 ard, 1 C. & P. 303. Both these prisoners had been at all times deaf and dumb. "In pre- 
 sumption of law, such persons are always idiots or madmen, although it may be shown that 
 they have the use of understanding, and are capable of committing crimes for which, in that 
 event; they should be punished." Case of Freeman, 4 Denio Rep. 9 ; 1 Russ. on Crimes, 6 ; 
 and Shelf on Lunacy, 3, cited.. 
 
 The New York Revised Statutes speak of persons of unsound mind, in contradistinction to 
 idiots, lunatics, and habitual drunkards. 1 R. S. 52. The term is also used in Pennsylva- 
 nia. Ashm. Rep. 82. In strict language,, the expression seems to mean nothing else than 
 imbecility amounting to an inability to manage one's affairs — a state which is precisely a 
 minor degree of idiocy, and need not be distinguished from it, except as a mere variety. 
 
 [1] New York. — "No act done by a person in a state of insanity can be punished as an 
 offence; and no insane person can be tried, sentenced to any punishment, or punished for 
 any crime or offence, while he continues in that state." 2 Rev. Stat. 582 — 3. 
 
 Massachusetts. — " In case of insanity, the grand jury, shall certify that fact to the court," 
 and thereupon the court is required to take order in the premises. Rev. Stat. Mass. ch. 136, 
 sec. 15. 
 
 Pennsylvania. — By the act of Assembly of the 13th June, 1836, entitled "An Apt rela- 
 ting to lunatics and habitual drunkards," the mode of proceeding in the courts against per- 
 sons charged with any crime or misdemeanor, and appearing to be insane, on their arraign- 
 ment, trial, or when "brought before the court, to be discharged for want of prosecution," 
 
IDIOTS AND LUNATICS. 5 
 
 By stat. 39 & 40 G. 3, c. 94, s. 1, where it shall be given in evidence, 
 upon the trial of any person for treason, murder, or felony, or any 
 misdemeanor, (a) that such person was insane at the time of the com- 
 mission of such offence, and such person shall be acquitted, the jury 
 shall be required to find specially whether such person was insane at 
 the time of committing such offence, and to declare whether they 
 acquitted him on account of such insanity ; and if they do so find, the 
 court shall order such person to be kept in strict custody, in such place 
 and in such manner as to them shall seem fit, until His Majesty's 
 pleasure shall be known. But the grand jury have no right to ignore 
 a bill, because it is proved to them that the party was insane at the 
 time he committed the offence ; they must find the bill as if the offender 
 had been sane, and leave the court and petty jurors to deal with the 
 case, in the manner here provided, (b) 
 
 And by sec. 2, where a person indicted for any offence shall be in- 
 sane, and upon indictment shall be found by a jury impanelled for that 
 purpose to be insane, so that he cannot be tried, — or where upon the 
 trial he shall be found to be insane, — the court may record such find- 
 ing, and order the party to be kept in strict custody until His Majesty's 
 pleasure shall be known. This section applies to all cases, as well 
 misdemeanors as felonies.(e) 
 
 Also, if any person charged with any offence, shall be brought be- 
 fore any court to be discharged for want of prosecution, and such per- 
 son shall appear to be insane, the court may order a jury to be im- 
 panelled to try the sanity of such person ; and if the jury find him to 
 •be insane, the court may order him to be kept in strict custody, in such 
 place and in such manner as to them shall seem fit, until His Majesty's 
 pleasure shall be known, (d) 
 
 Provision is made by stat. 3 & 4 Vict. c. 54, ss. 1, 2, for sending such 
 lunatics to a lunatic asylum, and for their maintenance there, at the ex- 
 pense of the parish which is the last place of their legal settlement, if 
 
 (a) 3 & 4 Vict. ch. 54, sec. 3. • (c) E. v. Little, R. & Ry. 430. 
 
 (6) R. v. Hodges, 8 Car. & P. 195. (d) 39 & 40 G. 3, ch. 94, sec. 2. 
 
 is directed ; and it is provided that, if the person shall be so found to be insane, the court 
 " shall have power to order such person to be kept in strict custody, in such place, and in 
 such manner as the said court shaE see fit, at the expense of the county," Ac. ; the estate 
 and effects of such person to be liable to the county for the re-imbursement of expenses 
 &,c. ; and upon the kindred or friends of such person, or the overseers of the poor, &c, giving 
 security that such person shall be restrained from the commission of any offence, he may be 
 delivered to them. 
 
 By this act, the course to be pursued, "if any person arrested or imprisoned in any civil 
 action, shall appear to be of unsound mind," is prescribed. And the act contains general 
 provisions for obtaining a commission to inquire into the lunacy or habitual drunkenness of 
 any person, for the holding of the inquisiton, the appointment, authority and duties of the 
 committee, &c. Pamph. laws, 1836, p. 589. 
 
5 — 1 PERSONS PUNISHABLE OR EXCUSABLE EOR CRIME. 
 
 they have no property applicable to the purpose ; or if they have no 
 settlement, the expense of their maintenance shall be paid by the trea- 
 surer of the county, borough, &c, where they are imprisoned.(a) 
 
 It may be necessary to mention that drunkenness is no excuse for 
 crime, but rather an aggravation of "it, (b) unless indeed it can be 
 proved, to the satisfaction of the jury, that the defendant was at 
 [6] the time in such a state of mind, as *not to be aware of the conse- 
 quences of his actions.(c)[l] 
 
 (a) See Arch. Poup. Lun. 94, &c. (c)_ B. v. Morikhouse, 14 Shaws' J. P. il5. 
 
 (b) Co. Lit. 247. 
 
 [1] The vice of drunkenness, which produces a perfect though temporaray frenzy of insan- 
 ity, usually denominated dementia affectata, or acquired madness, will not excuse the com- 
 mission of any crime ; and an offender under the influence of intoxication can derive no 
 privilege from a madness voluntarily contracted, but is answerable to law equally-as if he 
 had been in the full possession of his faculties at the time; (1 Hale, 32 ; Co. Litt. "247 ; 1 
 Hawk. u. 1, s. 6 ';) although it has been said, that, upon an indictment for murder, the in- 
 toxication of the defendant may be taken into consideration, as a circumstance to show that 
 the act was not premeditated. B. v. Grindley, 1 Russ. 8 ; B. v. Thomas, 7 C. & P, 817 : if. 
 v. MeaMn, Id. 297 ; but see B. v. Carroll, Id. 145. But,, if the primary cause of the frenzy 
 be involuntary, or it have become habitual and confirmed, this species of insanity will excuse 
 the offender equally as the former descriptions of. this malady. Thus, for instance, if a man, 
 through the unskilfulness of his physician, or the contrivance of his enemies, take that which 
 produces a temporary frenzy, he will not, whilst under the influence of the frenzy, be account- 
 able for his actions. So, neither will he be liable to be punished for any crime perpetrated 
 under the influence of insanity which is habitual and fixed, though caused by frequent in- 
 toxication, and originally contracted by his own act. THale, 32. 
 
 It seems that where a person is insane, at the time he commits murder, he is not punish- 
 able as a murderer, although such insanity be remotely occasioned by undue indulgence in 
 spirituous .liquor. But it is otherwise, if he be at the time intoxicated, and his insanity be 
 directly caused by the immediate influence of such liquors. 5 Mason's U. S. Rep. 28 ; 
 Martin & Yerger, 133, 147. 
 
 There is an insanity caused not by the immediate use of intoxicating drink, but by sud- 
 denly abstaining from stimulants to which the system had long been accustomed. This is 
 usually called delvriwm tremens, and sometimes mini a po6u. The law looks not to, the re- 
 mote cause, but holds that the species of insanity, like others which have been named, fur- 
 nishes the accused with a defence in cases where its existence, at the. time of the act, is fully 
 established. 
 
 But there is » species of madness produced by the immediate influence of intoxicating 
 liquor. It is a rule of the common law that madness occasioned by voluntary intoxication is 
 no excuse for crimes committed during its existence, and while under its influence. And 
 accordingly in England, in Massachusetts, in New York, and under the acts of Congress, 
 where the definition of murder stands as at common law, without any division into degrees, 
 as in this state, convictions of murder are held to be proper without regard to this ground of 
 defence. 
 
 This rule may seem harsh, when brought to bear upon an individual whose previous ex- 
 perience has furnished him with no actual knowledge of the destructive tendencies of such 
 stimulus. But there can be no hardship in its application to one whose frequent indulgence 
 has rendered him familiar not only with its effects upon his own brain, but with its danger- 
 ous influence in respect to the lives of others." Opinion of Lewis, Pres. Judge, in Comm v. 
 Haggerty, in Oyer and Term, of Lancaster county, Pa. (1847.) Lewis Cr. Law, p. 405. See 
 M'Kinney's Am. Mag. 62. 
 
WIFE. 6 
 
 (c) Wife. 
 
 If the husband be present at the time his wife commits a felony (ex- 
 cept murder and robbery,) the law presumes that the wife acts under 
 
 Where the deprivation of the understanding and memory is total, fixed, and permanent, it 
 excuses all acts; so, likewise, a man laboring under adventitious insanity is, during the 
 frenzy entitled to the same indulgence, in the same degree with one •whose disorder is fixed 
 and permanent. Beverly's case, 4 Co. 125 ; Co. Litt. 24"? ; 1 Hale. 31. But the difficulty in 
 these cases is, to distinguish between a total aberration of intellect and a partial or temporary 
 delusion merely, notwithstanding which the patient may be capable of discerning right from 
 wrong ; in which case he will be guilty in the eye of the law, and amenable to punishment. 
 Partial insanity, says Lord Hale, is the condition of many, especially of melancholy persons> 
 who generally discover their defects in excessive fear and grief, and yet are not wholly desti- 
 tute of the use of reason ; and this partial insanity seems not to excuse them in the com- 
 mission of any crime. 1 Hale, 30. Doubtless, he adds, most persons that are felons of them- 
 selves, and others, are under a degree of partial insanity when they commit these offences ; 
 it is very difficult to define the invisible line that divides perfect from partial insanity ; but it 
 must rest upon circumstances duly to be weighed and considered both by the judge and the 
 jury, least on the one side, there be akind of inhumanity towards the defects of human nature, 
 or, on the other side, too great an indulgence given to great crimes. He concludes by sug- 
 gesting, as the best measure, that such a person as, labouring under melancholy distempers, 
 hath yet as great understanding as ordinarily a child of fourteen years hath, is such a person 
 as can be guilty of treason and felony. 1 Hale, 30, 412. Upon this subject many cases have 
 been decided, from which it is difficult to extract any precise or definite rule. See R. v. Ld. 
 Ferrers, 19 St. Tr. 333 ; R. v. Arnold, 16 St. Tr. 714 ; R. v. Parker, Coll. 477 ; R. v. Bowler, 
 Id. 673 ; R. v. BeUinghcm, Id. 636, Add. ; R. v. Hadfleld, Id. 580 ; Reg. v. Oxford, 9 C. k P. 525- 
 It seems clear, however, that to excuse a man from punishment upon the ground of insanity, 
 it must be proved, distinctly that he was not capable of distinguishing right from wrong at 
 the time he did the act, and did know it to be an offence against the laws of God and nature. 
 See R. v. Offord, 5 C. & P. 168. If there be a partial degree of reason, a competent use is 
 sufficient to have restrained those passions which produced the crime ; if there be thought 
 and design, a faculty to distinguish the nature of actions, to discern the difference between 
 moral good and evil — then he will be responsible for his actions. 1 Russ. 13 ; Reg. v. 
 JtTMughten, 10 CI. & Fin. 200 ; 1 C. & E. 130, n. ; Reg. v. Eigginson, 1 C. &K. 129. "Whethe, 
 the prisoner were sane or insane at the time the act was committed, is a question of fact 
 triable by the jury, and dependent upon the previous and contemporaneous acts of the party. 
 Upon a question of insanity, a witness of medical skill may be asked whether such and such 
 appearances proved by other witnesses are, in his judgment symptoms of insanity ; but it has 
 always been considered as very doubtful whether he can be asked, whether from the testi- 
 mony given, the act with which the prisoner is charged is, in his opinion, an act of insanity ; 
 for that is the point to be decided by the jury. R. v. Right, E. & R. 456 ; see also R. v. Searle, 
 1 M. & Rob. 75. 
 
 The above cited cases of Reg. v. M'NamgMen gave rise to a discussion on this subject in the 
 house Of lords, and the following questions were propounded to the judges, in relation to the 
 law respecting alleged crimes committed by persons afflicted with insane delusion:— 
 
 " 1st. What is the law respecting alleged crimes committed by persons afflicted with in- 
 sane delusion in respect of one or more particular subjects or persons ; as, for instance, where 
 at the time of the commission of the alleged crime, the accuBed knew he was acting contrary 
 to law, but did the act cgmplained of with a view, under the influence of insane delusion, of 
 redressing or revenging some supposed grievance or injury, or of producing some public 
 benefit ? 
 
 "2nd. What are. the proper questions to be submitted to the jury, when a person, alleged 
 to be afflicted with insane delusion respecting one or more particular subjects or persons, is 
 
 3 
 
g. 1 PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 
 
 the coercion of her husband, excuses her, and -punishes the husband 
 only.(a) But if she commits it in his absence, eyen although it be 
 
 (a) 1 Hawk. o. 1, s. 2. 
 
 charged with the commission of a crime, (murder* for example,) and insanity is set up as a 
 defence 1 
 
 " 3rd. In what terms ought the question' to be left to the jury as to the prisoner's state of 
 mind at the time when the act was committed ? 
 
 "4th. If a person, under an insane delusion as to the existing facts, commits an offence 
 in consequence thereof, is he thereby excused ? 
 
 " 5th. Can a medical man, conversant with the disease of insanity, who never saw the 
 prisoner previously to the trial, but who was present during the whole trial, and the exami- 
 nation of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the 
 time of the commission of the alleged crime, or his opinion whether the prisoner was consci- 
 ous, at the time of doing the act, that he was acting contrary to law, or whether he was 
 labouring under and what delusion at the iime 1" 
 
 To these questions the judges (with the exception of Maule, J., who gave on his own ac- 
 count a more qualified answer) answered as follows : — 
 
 To the first question : — " Assuming that your Lordships' inquiries are confined to those 
 persons who labour under such partial delusions only, and are not in other respects insane, 
 we are of opinion, that, notwithstanding the party did the act complained of with a view, 
 under the influence of insane delusion, of redressing or revenging some supposed grievance 
 or injury, or of producing some public benefit, he is nevertheless punishable, according to the 
 nature of the crime committed, if he knew, at the time of committing such crime, that he was 
 acting contrary to law, by which expression we understand your Lordships to mean the law 
 of the land." 
 
 To the 2nd and 3rd questions : — " That the jury ought to be told in all cases that every 
 man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for 
 his crimes, until the contrary be proved to their satisfaction ; and that, to establish a defence 
 on the ground of insanity, it must be clearly proved that, at the time of the committing of the 
 act, the party accused was labouring under such a defect of reason, from disease of the mind, 
 as not to know the nature and quality of the act he was doing, or, if he did know it, that he 
 did not know he was doing what was wrong. The mode of putting the latter part of the 
 question to the jury on these occasions has generally been, whether the accused, at the time 
 of doing the act, know the difference between right and wrong, which mode, though rarely, 
 if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put 
 generally, and in the abstract, as when put to the party's knowledge of right and wrong in 
 respect to the very act with which he is charged. If the question were to be put as to the 
 knowledge of the accused, solely and exclusively with reference to the law of the land, it 
 might tend to confound the jury, by inducing them to believe that an actual knowledge of the 
 law of the land was essential in order to lead to a conviction, whereas the law is administered 
 upon the principle that every one must be taken conclusively to know it, without proof that 
 he does know it. If the accused was conscious that the act was one which he ought not to 
 do, and if that act was at the same time contrary to the law of the land, he is punishable . 
 and the usual course, therefore, bas been to leave the question to the jury, whether the party 
 accused had a sufficient degree of reason to know that he was doing an act that was wrong; 
 and this course, we think, is correct, accompanied with such observations and explanations 
 as the circumstance of each particular case may require." 
 
 To the fourth question : — " The answer to this question must of course depend on the 
 nature of the delusion ; but making the same assumption as we did before, that he labours 
 under such partial delusion only, and is not in other respects insane, we think he must be 
 considered in the same situation as to responsibility as if the facts with respect to which 
 the delusion exists were real. For example, if, under the influence of his delusion, he sup- 
 poses another man to be in the act of attempting to take away his life, and he kills that man 
 
WIFE. 6—2 
 
 proved that he incited her to it, she is as amenable to punishment as 
 if she were a feme sole.(a)[l] So, if a wife commit treason, murder, or 
 
 (a) 1 Hale, 45 ; Staundf. 26. 
 
 as he supposes, in self-defence, he would be exempt from punishment. If his delusion was 
 that the deceased had inflicted a serious injury to his character and fortune, and he killed 
 him in revenge for such supposed injury, he would be liable to punishment." 
 
 And to the last question: — "We think the medical man, under the circumstances suppos- 
 ed, cannot in strictness be asked his opinion in the terms above stated, because each of those 
 questions involves the determination of the truth of the facts deposed to, which it is for the 
 jury to decide ; and the questions are not mere questions upon a matter of science, in which 
 case such evidence is admissible. But where the facts are admitted or not disputed, and 
 the question becomes substantially one of science only, it may be convenient to allow the 
 question to be put in that general form, though the same cannot be insisted on as a matter 
 of right." 
 
 [1] The same sound principle which excuses those who have no mental will in the per- 
 petration of an offence, protects from the punishment of the law those who commit crime 
 in subjection to the power of others, and not as the result of an uncontrolled free action 
 proceeding from themselves. 4 Bl. Com. 21 ; 1 Hale 43. Thus if A., by force, take the 
 hand of B., in which is a weapon ; and therewith kill 0., A. is guilty of murder, but B. is 
 excused ; but if merely a moral force be used, as threats, duress of imprisonment, or even 
 an assault to the peril of his life, in order to compel him to kill C, it is no legal excuse. 
 
 1 Hale, 434 ; 1 East, P. C. 225. This protection also exists in the public and private relations 
 of society : public, as between subject and prince, obedience to existing laws being a suffi- 
 cient extenuation of civil guilt before a muncipal tribunal ; .and private, proceeding from 
 the matrimonial subjection of the wife to the husband, from which the law presumes a coer- 
 cion, which, in many cases, excuses the wife from the consequence of criminal misconduct. 
 The private relations which exist between parent and child, and master and servant, will 
 not, however, excuse or extenuate the commission of any crime, of whatever denomina- 
 tion ; for the command is void in law, and can protect neither the commander nor the in- 
 strument. 1 Hale, 44, 516. 
 
 In general if a felony be committed by a feme covert in the presence of her husband, the 
 law presumes that she acted under his immediate coercion, and excuses her from punish- 
 ment; (1 Hale, 45, 516 ; 1 Hawk. c. 1, s. 9 ;) thus a woman who went from shop to shop 
 uttering base coin, her husband accompanying her each time to the door, but not going in, 
 was holden by Bayley, J., to be under her husband's coercion; (MS. Durham Spring Ass. 
 1829 ; Mathew's Dig. 262 ; but if in the absence of her husband, she commit an offence, 
 even by his order or procurement, her coverture will be no excus.e; 2 Leach, C. C. 1102 ; 
 
 2 East, P. C. 559;, E. v. Morris. R. & E. 2V : 1 Hawk, c, 1, a. 11;) even though he appear 
 at the very moment after the commission of the offence ; and no subsequent act of his, 
 though it may render him an accessary to the felony of his wife, can be referred to what 
 was done by his wife in his absence. R. v. Hughes, 1 Russ. 21. This presumption, how- 
 ever, may be rebutted by evidence ; and if it appear that the wife was principally instrumen- 
 tal in the commission of the crime, acting voluntarily, and not by constraint of her hus- 
 band, although he was present and concurred, she will be guilty and liable to punishment, 
 1 Hale, 516. Thus a married woman, >who swore falsely that she was next of kin to a per- 
 son dying intestate, and so procured administration to the effects, was held responsible for 
 the offence, though her husband was with her when she took the oath. R v. Dicks, 1 Russ. 
 19. So, where a husband delivered a threatening letter ignorantly, as the agent of the 
 wife, she alone was held to be punishable. R. v. Hammond, 1 Leach, 44*7. Where stolen 
 goods are received by a married woman in the absence of her husband, and are concealed in 
 his house without his knowledge, she alone may be indicted and punished for the offence ; 
 but if the husband's ignorance of the transaction be not satisfactorily proved, the law will, 
 in most cases, impute the receiving to him. 
 
6 — 3 PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 
 
 robbery, even in the company of her husband, the law, on account of 
 the odiousness and dangerous consequences of these crimes, will not 
 excuse her.(d) So, if a wife commit an offence under felony, even in 
 company with her husband, she is liable to punishment as if she were 
 not married.(6)[l] Where the prisoners, husband and wife, were indict- 
 ed, the wife with forging and uttering an order and certificate for prize „ 
 money, and the husband as accessory before the fact, it was clear, upon 
 the evidence, that the husband planned the matter, and urged and in- 
 sisted on the wife presenting the forged order, &c, and applying for 
 the prize-money, but he was not present when she did so ; and it was 
 therefore objected that as it appeared plainly that the wife acted under 
 the compulsion of her husband, she could not be found guilty ; and if 
 she as principal were acquitted, he as accessory must necessarily be ac- 
 quitted also ; both, howeVer, being convicted, the judges held that with 
 respect to the wife's guilt as principal, the presumption of coercion by 
 the husband did not arise, as he was not present at the time, and they 
 were therefore clearly of opinion that the wife was guilty of the uttering, 
 and the husband guilty as accessory before the fact.(c)[2] Where hus- 
 
 (o) 1 Hawk, a 1, s. 9 ; 1 Hale,- 41. semb. cont. 
 
 (6) 1 Hawk. c. 1, s. 13 ; Dalt. c. 139, p. (c) S. v. Sarah and John Morris, R. & Ry. 
 314; but see R. v. Price, 8 Car. & P. 19, 210. 
 
 [1] In regard to offences below the degree of felony, it is said to be the prevailing, opin- 
 ion in England, that the wife may be punished jointly with her husband for all misdemean- 
 ors committed by her, though in the presence and by the coercion of her husband. Arch. 
 Cr. PL 16, 11 ; See 4 Black. Com. 29, note ; Matt. Dig. 263 ; But Blackstone has not 
 stated the exception so broadly. He seems to restrict it to those inferior offences which re- 
 late to the domestic economy and management of the house, as keeping a brothel, &c. The 
 reason given by him why the wife is responsible in such cases is, that these are offences in 
 which the wife has a principal share ; and are also such offences as the law presumes to be 
 generally conducted by the intrigues of the female sex. 4 Black. Com. 29 ; See also 1 
 Hawk. P. C. ch. 1, § 12 ; 10 Mod. 63 ; 1 Salk. 384 ; 1 Russ. on Cr. 16, 11. 
 
 We find no American case recognizing any distinction like the one noticed, between felo- 
 nies and misdemeanors, as such merely. On the contrary, it has been expressly decided in 
 Massachusetts, that where a wife committed an assault and battery by the command and in 
 the presence of the husband, she was not responsible. 10 Mass. Rep. 152. In this case 
 the court observe, that " the exceptions to the general rule exempting the wife as to crimes 
 committed by her through the coercion of the husband, consists of crimes forbidden by the 
 law of nature, which are Mala in se, and some where the wife may be presumed the prin- 
 cipal agent." Indeed, it may be well doubted whether in this country at least, misde- 
 meanors stand upon any different principle, in respect to the wife's responsibility, from 
 felonies. 
 
 For the offence of keeping a bawdy house, she is doubtless responsible with her husband. 
 1 Russ. on Cr. 16 ; 4 Black. Com. 29 ; 1 Hawk. P. C. ch. 1, § 12. So it has been held with 
 regard to the offence of keeping a gambling house. 10 Mod. 335. But the responsibility 
 rests, not upon any principle applicable to misdemeanors generally, but upon her presumed 
 voluntary participation in these particular offences. Barb. Cr. Law. 216. 
 
 [2] The prisoner, Martha Hughes, was indicted for forging and uttering Bank of England 
 notes. The witness stated that he went to the shop of the prisoner's husband, when she 
 took him into an inner room and sold him the notes. That while he was putting them in 
 
WIFE. 6—4 
 
 band and wife were indicted for receiving stolen goods, and both were 
 convicted, the judges held that, as the charge against the husband and 
 wife was joint, and it had not been left to the jury to say whether she 
 had received the goods in the absence of her husband, the conviction 
 of the wife could not be supported, even although it appeared that she 
 had been more active in the matter than he.(a) So, where a woman 
 was indicted for the murder of her husband's apprentice, by not fur- 
 nishing him with proper nourishment, Lawrence, J., held, that as the 
 wife was in that respect the servant of her husband, and as it was not 
 her duty to provide the boy with proper nourishment, she could not be 
 guilty of any breach of duty in neglecting to do so ; if, indeed, 
 the husband had given her food for the boy, *and she had wil- [*7] 
 fully withheld it, it would be otherwise. (5) 
 
 A woman, however, may be convicted of perjury, even although her 
 husband were present at the time of her taking the oath, &c.(c) So, 
 she and her husband, or she alone, may be indicted for keeping a dis- 
 orderly house,(c£)[l] or gaming house,(e) or for forcible entry,(<7) [2] riot, 
 conspiracy, &c. But a wife cannot be charged with having conspired 
 with her husband alone, for conspiracy must be between two persons 
 at the least, and husband and wife are but one person in law. (A) Nor 
 is she deemed accessory after the fact, in receiving her husband, al- 
 though she may know at the time of his having committed a felony ; 
 for she is under his power, and is obliged to receive him.(a) So, if the 
 husband and wife jointly receive a third person, knowing him to be 
 
 (a) R. v. Eliz. Archer et at, By. & M. 143 ; (d) 1 Hawk. u. 1, s. 12. 
 
 see R. v. MClarens, 13 Shaw's J. P. 343 ; R. (e) R. v. Dixon omdwife, 10 Mad. 335. 
 
 v. Mathews et al, 14 Shaw's J. P. 399. (g) Dalt. 126. 
 
 (6) R. v. Squire and Wife, 1 Buss. 16. (h) 1 Hawk. c. 12, s. 8. 
 
 (c) R. v. Dicks, MS., Bayley, J., cited 1 (s) 1 Hale, 47, and see R. v. Mary Good, 1 
 
 Russ. 16. Car. & K. 185. 
 
 his pocket, the husband put his head in and said, " Get on with you." On returning to the 
 shop, he saw the husband, who, as well as the wife, desired him to be careful. . It was ob- 
 jected that the offence was committed under coercion, but the court held otherwise, and said 
 that the law, out of tenderness to the wife, if a felony be committed in the presence of the 
 husband, raises a presumption, and prima facie only, as is clearly laid down by Lord Hale, 
 that it was done, under his coercion; but it is absolutely necessary that the husband should 
 be actually present, and taking part in the transaction. Here, it is entirely the act of the 
 wife. It is indeed in consequence of a previous communication with her husband that the 
 witness applies to the wife, but she is ready to deal, and has on her person, the articles which 
 she delivers to the witness. There was a putting off before the husband eame, and it is 
 sufficient if before that" time she did that which was necessary to complete the crime. The 
 coercion must be at the time of the act done; but when the crime has been completed in his 
 absence, no subsequent act of his, (though it might possibly make him an accessory to the 
 felony, of his wife,) can be referred to what was done in his absence. Buss, & By. C. C. 210. 
 Eoscoe's Or. Bv. 185. 1 Buss, on Or. 18. 
 
 [1] Com. v. Lewis, 1 Mete. Eep. 151. 
 
 [2] State v. Harvey, 3 New Hampshire Bep. 65. 
 
6—3 PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 
 
 robbery, even in the company of her husband, the law, on account of 
 the odiousness and dangerous consequences of these crimes, will not 
 excuse her.(d) So, if a wife commit an offence under felony, even in 
 company with her husband, she is liable to punishment as if she were 
 not married.(5)[l] Where the prisoners, husband and wife, were indict- 
 ed, the wife with forging and uttering an order and certificate for prize 
 money, and the husband as accessory before the fact, it was clear, upon 
 the evidence, that the husband planned the matter, and urged and in- 
 sisted on the wife presenting the forged order, &c, and applying for 
 the prize-money, but he was not present when she did so ; and it was 
 therefore objected that as it appeared plainly that the wife acted under 
 the compulsion of her husband, she could not be found guilty ; and if 
 she as principal were acquitted, he as accessory must necessarily be ac- 
 quitted also ; both, however, being convicted, the judges held that with 
 respect to the wife's guilt as principal, the presumption of coercion by 
 the husband did not arise, as he was not present at the time, and they 
 were therefore clearly of opinion that the wife was guilty of the uttering, 
 and the husband guilty as accessory before the fact.(c)[2] Where hus- 
 
 (a) 1 Hawk. c. 1, s. 9 ; 1 Hale, 47. semb. cont. 
 
 (b) 1 Hawk. c. 1, a. 13 ; Dalt. c. 139, p. (c) B. v. Sarah and John Morris, R. & Ry. 
 314; but aee E. v. Price, 8 Car. & P. 19, 210. 
 
 [1] In regard to offences below the degree of felony, it is said to be the prevailing opin- 
 ion in England, that the wife may be punished jointly with her husband for all misdemean- 
 ors committed by her, though in the presence and by the coercion of her husband. Arch. 
 Cr. PL 16, IT ; See 4 Black. Com. 29, note ; Matt. Dig. 263 ; But Blackstone has not 
 stated the exception so broadly. He seems to restrict it to those inferior offences which re- 
 late to the domestic economy and management of the house, as keeping a brothel, &c. The 
 reason given by him why the wife is responsible in such cases is, that these are offences ia 
 which the wife has a principal share ; and are also such offences as the law presumes to be 
 generally conducted by the intrigues of the female sex. 4 Black. Com. 29 ; See also 1 
 Hawk. P. C. eh. 1, § 12 ; 10 Mod. 63 ■ 1 Salk. 384 ; 1 Russ. on Cr. 16, 17. 
 
 We find no American case recognizing any distinction like the one noticed, between felo- 
 nies and misdemeanors, as such merely. On the contrary, it has been expressly decided in 
 Massachusetts, that where a wife committed an assault and battery by the command and in 
 the presence of the husband, she was not responsible. 10 Mass. Rep. 152. In this case 
 the court observe, that " the exceptions to the general rule exempting the wife as to crimes 
 committed by her through the coercion of the husband, consists of crimes forbidden by the 
 law of nature, which are Mala in se, and some where the wife may be presumed the prin- 
 cipal agent." Indeed, it may be well doubted whether in this country at least, misde- 
 meanors stand upon any different principle, in respect to the wife's responsibility, from 
 felonies. 
 
 Por the offence of keeping a bawdy house, she is doubtless responsible with her husband. 
 1 Russ. on Cr. 16 ; 4 Black. Com. 29; 1 Hawk. P. C. ch. 1, § 12. So it has been held with 
 regard to the offence of keeping a gambling house. 10 Mod. 336. But the responsibility 
 rests, not upon any principle applicable to misdemeanors generally, but upon her presumed 
 voluntary participation in these particular offences. Barb. Cr. Law. 276. 
 
 [2] The prisoner, Martha Hughes, was indicted for forging and uttering Bank of England 
 notes. The witness stated that he went to the shop of the prisoner's husband, when she 
 took him into an inner room and sold him the notes. That while he was putting them in 
 
WIPE. g_4 
 
 band and wife were indicted for receiving stolen goods, and both were 
 convicted, the judges held that, as the charge against the husband and 
 wife was joint, and it had not been left to the jury to say whether she 
 had received the goods in the absence of her husband, the conviction 
 of the wife could not be supported, even although it appeared that she 
 had been more active in the matter than he.(a) So, where a woman 
 was indicted for the murder of her husband's apprentice, by not fur- 
 nishing him with proper nourishment, Lawrence, J., held, that as the 
 wife was in that respect the servant of her husband, and as it was not 
 her duty to provide the boy with proper nourishment, she could not be 
 guilty of any breach of duty in neglecting to do so ; if, indeed, 
 the husband had given her food for the boy, *and she had wil- [*7] 
 fully withheld it, it would be otherwise.(S) 
 
 A woman, however, may be convicted of perjury, even although her 
 husband were present at the time of her taking the oath, &c.(c) So, 
 she and her husband, or she alone, may be indicted for keeping a dis- 
 orderly house, (<2)[1] or gaming house, (e) or for forcible entry, (g) [2] riot, 
 conspiracy, &c. But a wife cannot be charged with having conspired 
 with her husband alone, for conspiracy must be between two persons 
 at the least, and husband and wife are but one person in law. (A) Nor 
 is she deemed accessory after the fact, in receiving her husband, al- 
 though she may know at the time of his having committed a felony ; 
 for she is under his power, and is obliged to receive him.(*') So, if the 
 husband and wife jointly receive a third person, knowing him to be 
 
 (a) if. v. Elm. Archer et at, Ry. & M. 143 ; (d) 1 Hawk. c. 1, s. 12. 
 see B. v. MGlarens, 13 Shaw's J. P. 343 ; if. (e) B. v. Dixon midwife, 10 Mad. 335. 
 v. Mathews et al, 14 Shaw's J. P. 399. {g) Dalt. 126. 
 
 (5) B. v. Squire and Wife, 1 Russ. 16. (h) 1 Hawk. c. 12, s. 8. 
 
 (c) if. v. Dicks, MS., Bayley, J., cited 1 (i) 1 Hale, 4*7, and see if. v. Mary Good, 1 
 
 Russ. 16. Car. & E. 185. 
 
 his pocket, the husband put his head in and said, " Get on with you." On returning to the 
 shop, he saw the husband, who, as well as the wife, desired him to be careful. It was ob- 
 jected that the offence was committed under coercion, but the court held otherwise, and said 
 that the law, out of tenderness to the wife, if a felony be committed in the presence of the 
 husband, raises a presumption, and prima facie only, as is clearly laid down by Lord Hale, 
 that it was done, under his coercion ; but it is absolutely necessary that the husband should 
 be actually present, and taking part in the transaction. Here, it is entirely the act of the 
 wife. It is indeed in consequence of a previous communication with her husband that the 
 witness applies to the wife, but she is ready to deal, and has on her person, the articles which 
 she delivers to the witness. There was a putting off before the husband came, and it is 
 sufficient if before that time she did that which was necessary to complete the crime. The 
 coercion must he at the time of the act done ; but when the crime has been completed in his 
 absence, no subsequent act of his, (though it might possibly make him an accessory to the 
 felony, of his wife,) can be referred to what was done in his absence. Russ. & Ry. C. 0. 2 I ?0. 
 Roscoe's Cr. Ev. 185. 1 Russ. on Cr. 18. 
 
 [1] Com. v. Lewis, 1 Mete. Rep. 151. 
 
 [2] State v. Harvey, 3 New Hampshire Rep. 65. 
 
7 PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 
 
 guilty of felony, the husband alone is guilty, the wife not ; but if the 
 wife alone receive him, in the absence of her husband, she may be con- 
 victed, (a) 
 
 That a wife, who has committed a felony, has done so under the co- 
 ercion of her husband, is, however, a presumption which, like all other 
 presumptions, may be rebutted by evidence to the contrary ; and, there- 
 fore, if it appear clearly upon evidence, that the wife was not drawn 
 into it by the husband, but that she was the principal actor in, and in- 
 citer to, it, she seems to be guilty as well as her husband. (6) [1] 
 
 Also, a woman can never be said to be guilty of larceny of the goods 
 of her husband, or of goods which are the property of her husband and 
 others, unless she steal them from some third person, with the intent to 
 make such person chargeable for them ; for, as the husband and wife 
 are one person in law, the wife's possession is deemed the possession of 
 the husband.(c) Where money, belonging to a friendly society, was 
 deposited in a box, and placed in the custody of one of the members, 
 and his wife broke open the box and stole the money, the judges held 
 that an indictment against her as for larceny, could not be sustain- 
 ed.^) If, however, the box at that time were in custody of any other 
 person but the husband, she might be convicted, although the husband 
 were a part owner of the money in it ; because the taking would have 
 the effect of charging the bailee.(e) Where the wife of the prosecutor, 
 And a man with whom she afterwards cohabited, jointly took money 
 [and goods belonging to the husband, the judges held that an indictment 
 as for larceny would lie against the man, although not against 
 [*8] the wife ; and that, notwithstanding the wife's consent,* the pro- 
 perty must be considered as having been taken invito domino.(g) 
 And where, upon an indictment against a woman for setting fire to the 
 house of her husband, it appeared that she had lived separate from 
 him for two years, and had gone by her maiden name ; and it also ap- 
 peared clearly from the evidence, that she had set fire to the house out 
 of malice to her husband, she having declared that she wished to burn 
 him in the house : the judges held that she ought not to be convicted.(/i) 
 
 If the woman be indicted as a wife, — that being an admisson upon 
 record that she is so, will be suflicient.(i) Otherwise, if she set up her 
 
 (a) 1 Hale, 621. ley, R. & Ry. 418. 
 
 {b) 1 Hale, 516 ; R. v. Boober, 14 Shaw's (</) R v. Tolfree, Ry. & M. 243 ; R. v. 
 
 J. P. 355. Thompson, 14 Shaw's J. P. 309 ; R. v. ToUelt 
 
 (c) 1 Hale, 514; 1 Hawk. o. 33, s. 10. & Taylor, Car. & M. 112. 
 
 (d) R v. Willis, Ry. & M. 375. (h) R. v. EtimMarch, Ry. & M. 182. 
 
 (e) 1 Hale, 513 ; and see R. v. Phoibe Brain- (i) R v. Knight and wife, 1 Car. & P. 116. 
 
 [1] Where, in a case of arson, it appeared that the husband, though present, was crippled 
 and bed-ridden in the room, it was held that the presumption of coercion was repelled. Reg. 
 v. Pollard, cited in Reg. v. Cruse, 2 M. 0. C. Rep. 53. 
 
AMBASSADORS AND THEIR SERVANTS. 8 
 
 coverture as a defence, she must prove it. And proof merely of co- 
 habitation with the man, and passing by his name, does not seem to be 
 sufficient proof of this; (a) although, on the other hand, actual evidence 
 of the marriage would not, perhaps, be required. (6) 
 
 (d) Ambassadors and their servants. 
 
 For offences which are mala prohibita merely, and not mala in se, 
 ambassadors and their suites are not punishable in this country. But 
 for direct attempts against the life of the queen, they are punishable ; 
 and if they are not punishable in the same manner for conspiracies 
 against the queen, this arises rather from political reasons, than from 
 any rules of law.(c)[l] Also for murder, rage, or any other offence of 
 great enormity against nature and the fundamental laws of society, 'they 
 are punishable by the laws of this country as any other alien.(d) And 
 Lord Hale cites, as an instance, the execution of Don Pantaleon Sa, the 
 Portuguese ambassador's brother, and some of the ambassador's ser- 
 vants, for a murder committed by them in London. See, however, the 
 case of R. v. Gfuerchy,(e) where the attorney-general entered a nolle 
 prosequi to an indictment found against the French ambassador, for hir- 
 ing a person to assassinate the Chevalier D'Enon.[2] 
 
 (a) R. v. Hassal et al, 2 Car. & P. 434. (d) Id. 
 
 (6) See R. v. Mary Good, 1 Car. & K. 185. (e) 1 W. Bl. 545. 
 
 (c) 1 Hale, 96—99 ; Post. 187, 188. 
 
 [1] As to the immunities of n public minister, and the inviolability of his person and 
 rights, and those of his household, see Respublica v. Detonghcarnps, 1 Dall. Ill, 117. Ex 
 parte Cabrera, Whart. Penn. Dig. 288. A foreign Consul is not privileged from arrest and 
 prosecution, for a misdemeanor, by virtue of his consular appointment. United States v. Ra- 
 vara, 2 Dall. 99, u. And a prior assault by a foreign minister, deprives him of his privi- 
 leges, and will excuse a battery committed on his person. United States v. Little, Whart. 
 Penn. Dig. 288; see 3 Story on Constit. 518-525. It seems a consul general is not protec- 
 ted by the law of nations from a prosecution and indictment for rape. Commonwetth v. Kos- 
 leff, 5 Serg. & Rawle, 545. But the state courts have no jurisdiction in such case ; the ex- 
 clusive jurisdiction is vested in the court of the United States, id. See farther, State v. La 
 Foret, 2 Nott & M'Cord, 217. 
 
 [2] Ambassadors form an exception to the general case of foreigners resident in the coun- 
 try, and they are exempted absolutely from all allegiance, and from all responsibility to the 
 laws of the country to which they are deputed. As they are the representatives of their 
 sovereigns, and requisite for negociatious and foreign intercourse, their persons, by the con- 
 sent of all nations, have been deemed inviolable ; and the instances are rare, in which pop- 
 ular passions, or perfidious policy, have violated this immunity. If, however, ambassadors 
 should be so regardless of their duty, and of the object of their privilege, as to insult, or open- 
 ly attack the laws or government of the nation to which they are sent, their functions may 
 be suspended by a refusal to treat with them, or application can be made to their own sov- 
 ereign for their recall, or they may be dismissed or required to depart within a reasonable 
 time. The writers on public law go still farther, and allow force to be applied to confine 
 or send away an ambassador, when the safety of a state, which is superior to all other con- 
 
8 1 PERSONS PUNISHABLE OE EXCUSABLE FOR CRIME. 
 
 (e) Aliens. 
 
 Aliens are punishable in this country, for offences committed here, 
 in precisely the same way as natural born subjects ; and if indicted, it 
 
 siderations, absolutely requires it, arising either from the violence of his conduct, or the in- 
 fluence and danger of his machinations. This is all that can be done ; for ambassadors 
 cannot in any case, be made amenable to the civil or criminal jurisdiction of the country. 
 By fiction of law, an ambassador is considered as if he were out of the territory of the for- 
 eign power ; and it is an implied agreement among nations, that the ambassador, while 
 he resides in a foreign State, shall be considered a member of his own country ; and the 
 goverment he represents has exclusive cognizance of his conduct, and control of his per- 
 son. An ambassador is also deemed to be under the law of nations in his passage through 
 the territories of a third and friendly power, while upon his publiG mission, in going to and 
 returning from the government to which he is deputed. To arrest him under such circum- 
 stances would be a breach of his privilege as a public minister. The attendants of an am- 
 bassador, attached to his person, and the effects in his use, and the house in which he re- 
 sides, are under his protection and privilege, and equally exempt from the foreign jurisdic- 
 tion, though there are strong instances in which their inviolability has been denied and in- 
 vaded. Passports, though nanfed in our law, are unknown in practice. The protection is 
 implied by natural and municipal law ; and it is the duty of courts of justice, when cases 
 arise before them, to enforce the law of nations, on this subject, as part of the law of the 
 land. 
 
 The distinction between ambassadors, ministers plenipotentiary, envoys extraordinary, 
 and resident ministers, relates to diplomatic precedence and etiquette, and not to their essen- 
 tial powers and privileges. 
 
 A charge d'affairs is a diplomatic representative or minister of the fourth grade ; and a 
 resident minister seems not to be equal to a minister plenipotentiary. Nor is a minister 
 plenipotentiary of equal rank and dignity with an ambassador, who represents the person of 
 his sovereign. The great powers of the Congress of Vienna in 1815, by an arrangement, di- 
 vided diplomatic agents into four classes : 1. Ambassadors, legates or nuncios; 2. Envoys, 
 ministers and other agents, accredited to the sovereigns ; 3. Ministers resident, accredited 
 to sovereigns ; 4. Charges des affaires, accredited to the department of foreign relations. 
 The United States are usually represented at the courts of the great powers of the first class 
 by ministers plenipotentiary ; and at those of an inferior class by charges des affaires ; and 
 they have never sent a person of the rank of an ambassador, in a diplomatic sense. 
 
 Consuls are cpmmercial agents, appointed to reside in the seaports of foreign countries, 
 with commissions to watch "over the commercial rights and privileges of the nation deputing 
 them. The establishment of consuls is one of the most useful modern commercial institu- 
 tions. Consuls have been multiplied and extended to every part of the wold, where navi- 
 gation and commerce can successfully penetrate ; and their duties and privileges are now 
 generally defined and limited in treaties of commerce, or by the statute regulations of the 
 countries which they represent. In some 'places they have been invested with judicial pow- 
 ers in disputes between their own merchants in foreign ports. But no government can in- 
 vest its consuls with judicial powers over its own subjects, in a foreign country, without the 
 consent of the government of the foreign country, founded on treaty ; and there is no in- 
 stance in Europe, of the admission of criminal jurisdiction in foreign consuls. 
 
 The laws of the United States, on the subject of consuls and vice-consuls, specially autho- 
 rize them to receive the protests of masters of vessels, and others, relating to American com- 
 merce ; and they declare that consular certificates, under seal, shall receive full faith and 
 credit in the courts of the United States. It is, likewise, made their duty, where the laws 
 of the country permit, to administer on the personal estate of American seamen dying with- 
 in their consulates, and having no legal representatives ; and to take charge of and secure 
 the effects of stranded American vessels, in the absence of the master, owner or consignee; 
 
ALIENS. 8 — 2 
 
 is no excuse whatever that the act charged against them is no offence 
 by the laws of their native country .(a)[2] 
 
 (a) R. v. Esop, 1: Car. & P. 456. 
 
 and they are bound to provide for destitute seamen within their consulates, and to send them, 
 at the public expense, to the United States ; and it is made the duty of masters of American 
 vessels, on then- arrival at a foreign port, to deposit their registers, spa letters, and passports, 
 with the consul, vice-consul, or commercial agent, if any, at the port; though this injunction 
 only applies where the vessel shall have come to an entry, or have transacted business at 
 the port. These particular powers and duties are similar to those prescribed to British con- 
 suls, and to consuls under the consular convention between the United States and France 
 in 1788 ; and they are in accordance with the usages of nations, and are not to be construed 
 to be in exclusion of others resulting from the nature of the consular appointment. The 
 doctrine of our courts is, that a foreign consul, duly recognized by our government may as- 
 sert and defend, as a competent party, the rights Of property of individuals of his nation, in 
 the courts of the United States, and may institute suits for that purpose, without any speci- 
 fic authority from the party for whose benefit he acts. But the court, in that case, said, that 
 they would not go so far as to recognize a right in a consul to receive actual restitution of 
 the property, or its proceeds, without showing some specific power, for the purpose, from 
 the party in interest/ 
 
 Consuls are to be admitted in the usual form ; and if any consul be guilty of illegal or im- 
 proper conduct, he is liable to have his exequatur, or written recognition of his character, re- 
 voked, and to be punished according to the laws of the country in which he is consul ; or ha 
 may be sent back to his country, at the discretion of the government which he has offended. 
 Though the function of a consul would- seem to require that he should not be s subject of 
 state in which he resides, yet the practice of the maritime powers is quite lax on this point, 
 and it is usual and thought most convenient to appoint subjects of the foreign country to be 
 consuls at its ports. 
 
 A consul is not such a public minister as to be entitled to the privileges appertaining to 
 that character : nor is he under the special protection of the law of nations. He is entitled to 
 privileges to a certain extent, such -as for safe conduct ; but he is not entitled to the jus gen- 
 tium. Vattel thinks that his functions require that he should be independent of the ordinary 
 jurisdiction of the country, and that he ought not to be molested, unless he violates the law 
 of nations by some enormous crime; and that if he be guilty of any crime, he ought to be 
 sent home to be punished. But no such immunities have been conferred on consuls by the 
 modern practice of nations ; and it may be considered as settled law, that consuls do not en- 
 joy the protection of the law of nations, any more than any other person who enters the 
 country under a safe conduct. In civil and criminal cases, they are equally subject to the 
 laws of the country in which they reside. The same doctrine declared by public jurists, has 
 been frequently laid down in the English and American courts of justice. 
 
 By the Constitution of the United States, the Supreme Court of the United States has ori- 
 ginal jurisdiction in all cases affecting consuls, as well as ambassadors and other public min- 
 isters ; and the federal jurisdiction is understood to be exclusive of the state courts. 1 Kent's 
 Com. 35 — 45, and notes. 
 
 [2] Citizens are all persons born within the jurisdiction of the United States, or duly na- 
 turalized. Aliens are persons born out of the jurisdiction of the United States, and not na- 
 turalized. 
 
 Under the naturalization act of Congress, the children of aliens, though born out of the ju- 
 risdiction of the United States, if dwelling within the Union at the time of the naturalization 
 of their parents, become citizens by such naturalization. And the provisions of the act of 
 Congress on the subject is prospective, so as to embrace the children of aliens naturalized 
 after the passage of the act,' as well as the children of those who were naturalized before. 
 8 Paige's Ch. Rep. 433. 
 
 4 
 
8 — 3 PERSONS PUNISHABLE OR EXCUSABLE POR CRIME. „ 
 
 (/) Corporations. 
 
 It was formerly imagined that an indictment would not lie against a 
 corporation aggregate ; and it was then the custom to join in 
 [*9] the indictment with the corporation, *or indict alone, such of the 
 leading members of the body as principally caused the act or 
 omission complained of. It was afterwards holden that an indictment 
 would lie against them by their corporate name for a breach of duty.(a) 
 And it is now fully settled that an indictment will lie against a corpo- 
 ration aggregate, as well for a misfeasance as a non-feasance — for a 
 wrongful act as well as for a wrongful omission.(&)[l] 
 
 (g) Persons offending from chance, mistake, &c. 
 
 "Where a man, in the execution of one act, by misfortune or chance, 
 and not designedly, does another act, for which, if he had wilfully com- 
 mitted it, he would be liable to be punished : — in that case, if the act 
 he was doing were lawful, or merely malum prohibitum, he shall not 
 be punishable for the act arising from misfortune or chance ; but if 
 malum in se, it is otherwise.(c) 
 
 Even the killing of another by misfortune, or in any other way not 
 felonious, is not now punishable, nor is any forfeiture incurred. But 
 this exemption from punishment must be understood of cases where 
 the innocent act is done with reasonable skill and care : — if the unin- 
 tended offence arise from ignorance, 'where skill was required, or from 
 negligence, where care and caution were required, the party will in 
 most cases be liable to punishment for the act done, which was not in- 
 
 (a) E. v. The Birmingham and Gloucester way Go. 11 Shaw's J. P. 21. 
 Sailway Go. 3 Q. B. 223. (c) 1 Hale, 39 ; Post. 259. 
 
 (&) JR. v. The Great North of Englang Rail- 
 
 The children of citizens, though they were born abroad, are considered, in law, as citizens 
 of the United States, if their parents have at some time resided here. "Walk. Introd. to Am. 
 Law, p. 131. 
 
 [1] In Maine, it has been held that where an offence is committed by virtue of corporate 
 authority the individuals concerned in its commission, in their personal capacity, and not as 
 a corporation, must be indicted. State v. Great Worlcs, 20 Maine Rep. 41, and in Virginia 
 it has been determined that a corporation cannot be impleaded oriminaUter \rj its artificial name 
 at common law. Com. v. SviiftBim Gap Turnpike Co., 2 Virg. Cas. 362. 
 
 In New York an indictment lies against a corporation quasi a corporation, for neglecting 
 to do what the common good requires ; as where the corporation of a city have power to di- 
 rect the excavating, deepening or cleansing of a basin connected with a river, and neglect; 
 to take the proper measures in that respect, whereby the air becomes infected by noisome 
 and unwholesome stenches and a nuisance is created. 11 Wend. 539. 
 
 In Pennsylvania it was determined that where an act of assembly directed " the president, 
 managers, and company," of a turnpike road to remove a gate on the road, that an indict- 
 ment would not lie against the president and managers individualhj for not removing the 
 gate. 12 Serg. & Rawle Rep. 389. 
 
PERSONS OFFENDING FROM CHANCE, MISTAKE, &o. 9 
 
 tended. If a man take upon himself an office or duty, requiring skill 
 or care, — if by his ignorance, carelessness, or negligence he cause the 
 death of another, he -will be guilty of manslaughter : as if a person, by 
 careless or furious driving, unintentionally run over another and kill 
 him, it will be manslaughter ;(a) or if a person in command of a steam- 
 boat, by negligence or carelessness,, unintentionally run down a boat, 
 &c, and the person in it is thereby drowned, he is guilty of man- 
 slaughter.^) In like manner, if a person, whether a medical man or 
 . not, profess to deal with the life or health of another, he is bound to 
 use competent skill and sufficient attention ; and if he cause the death 
 of the other through a gross want of either, he will be guilty of man- 
 slaughter.^) Or, if a man, without malice to any individual, wilfully 
 do an act, which he knows must or will probably cause the death of 
 some person whom he knows not," and a man be thereby killed, 
 he will be guilty of murder. If a *man, in building or repair- [*10] 
 ing a house, throw a stone from it into the street or way, and it 
 hit a person passing, and kill him, — if he did this in a street where 
 many persons were passing, and without properly warning the persons 
 below, he is guilty of murder ; if in a retired place where no persons 
 were likely to pass, he would not be liable to punishment.(<f ) If a 
 man, being on a horse which he knows to be used to kick, wilfully 
 ride him amongst a crowd of persons, and the horse kick a man and 
 kill him, the rider is guilty of murder, although he had no malice 
 against any particular person, nor any other intention than that of 
 diverting himself by frightening the persons around him.(e) But if a 
 horse run away with his rider, so that he has no control over him, and 
 the horse kill or injure a man, the rider is dispunishable.(^)[l] 
 
 (a) R. v. Walker, 1 Car. & P. 320 ; R. v. Vim Butchell, 3 Id. 629 ; R. v. Williamson, 
 6 Car. & P. 396; R. v. Grout, Id. Id. 635; R. v. St. John Long, 4 Id, 398, 
 
 629 ; R. v. Timmins, 1 Id. 499 ; R. v. Swind- 423 ; R. v. Webb, 1 Moody & R. 405. 
 oM etal., 2 Car. & K. 230. (d) 3 Inst. 10 ; Fost. 263. 
 
 (&) R. v. Green, 1 Car. &, P. 156 ; and see (e) 1 Hawk. u. 31, s. 68. 
 R. v. Allen, Id. 153. (g) See Gibbon v. Pepper, 2 Salk. 638; 1 
 
 (c)R. v. Spiller, 5 Car. & P. 333; R. v. Ld. Raym. 38. 
 
 [1] Parents, masters, and other persons having authority in domestic affairs, may give 
 reasonable correction to those under their care ; and if death ensue from such correction, it 
 will be no more than accidental death. But if the correctign exceed the bounds of due mod- 
 eration, either in the measure of it, or in the instrument made use of for that purpose, it will 
 be either murder or manslaughter, according to the circumstances. If done with a cudgel, 
 or other thing not likely to kill, though improper for the purpose of correction, it will be 
 manslaughter ; if with a dangerous weapon likely to kill or maim, it will be murder ; due re- 
 gard being had in both instances, to the age and strengh of the party. Grey, a blacksmith, 
 struck his servant with a bar of iron by way of correction- for improper behavior, by which 
 he was killed, — held, murder. A woman kicked and stamped on the belly of her child, and 
 ruled the same. 
 
 Accidents frequently occur. among persons following their lawful occupations, especially 
 
10 PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 
 
 A person, from ignorance or mistake, not of law but of fact, may 
 commit an offence, and still be dispunishable for it : as if a man, think- 
 
 such from whence danger may probably arise; If they saw the danger, and yet persisted, 
 without sufficient warning, it will be murder. If the act were such as was likely to breed 
 danger, and they neglected the ordinary caution, it will be manslaughter at least, on account 
 of such negligence; making due allowance for the nature of the occupation, and the proba- 
 bility of the danger, which, if very remote, and in the particular instance not reasonably to 
 be expected, may reduce the act to misadventure. The criterion in such cases is, to exam- 
 ine whether common social duty would, under the circumstances, have suggested a more 
 circumspect conduct. 1 East's C.L. 260, 261, 262. 
 
 If, when engaged in unlawful and dangerous sport, a man ..kill another by accident, it is 
 manslaughter; if the sport were lawful, and not dangerous, it would be homicide by misad- 
 venture only. Under the former class, however, cannot be reckoned prize fighting, public 
 box matches, and cases of such character, which are exhibited for the sake of lucre, and are 
 calculated to draw together » number of idle, disorderly people. For, in such cases, the 
 intention of the parties is not innocent in itself, each being careless of what hurt may be 
 given, provided the promised reward or applause be obtained. Such meetings have also a 
 strong tendency in their nature to a breach of the peace. Addis. 219 ; 1 East's C. L. 268, 
 219. 
 
 If one, assuming to be a physician, however ignorant of the medical art, administer to his 
 patient remedies which resulted in his death, he is not guilty of manslaughter unless, he has 
 so much knowledge or probable information of the fatal tendency of his prescriptions as to 
 raise a presumption of obstinate, wilful rashness., 
 
 Where, however, sueh person has opportunity to know of the injurious effects of his reme- 
 dies, and then administers them, it would be competent for the jury to find him guilty of 
 manslaughter, even though he might not have intended any bodily, harm to his patient. 6 
 Mass. Rep. 134 ; Whart, C. L. 254. 
 
 He who wilfully neglects to prevent a mischief, which he may and ought to provide 
 against, is answerable for the consequence : as where where a man, having an ox which he 
 knows to be mischievous, by being- used to gore, does not put him in some place of security, 
 but lets him range where persons are likely to pass, and he afterwards kills a man : accord- 
 ing to some opinions, the owner may be indicted for manslaughter. And it is agreed by all, 
 that such a person is at least guilty of a, very great misdemeanor. East's C. L. 264. 
 
 With respect to cases where death happens from some unexpected occurrence in human 
 affairs, any criminality turns on the question, whether due caution have been used or not. 
 And in general, it may be observed, that the degree of caution requisite to bring the ease 
 within the limits of misadventure, must be proportioned to the probability of danger attend- 
 ing the act immediately conducive to the death. Inferences of guilt are not to be drawn 
 from remote causes, all malice apart. 
 
 Where a man leaves a loaded gun in his house, and it is afterwards discharged by an- 
 other, who knew not it was loaded, whereby death ensues, the first is in no respect answer- 
 able to the law, for the consequences. 
 
 One lays poison to kill rats, and another takes it and dies : this is misadventure. If it was 
 laid in such a manner and place as to be easily mistaken for proper food, it might, in some 
 cases, amount to manslaughter. 
 
 A gentleman came to to wn in a chaise, and before he got out of it fired his pistols in the 
 street, which, by accident, killed a woman. This was ruled manslaughter. 
 
 In none of these instances, where the act of the party is immediately conducive to the 
 death, does the law require the utmost caution that can be used; it is sufficient that a rea- 
 sonable precaution, that is usual and ordinary in like cases, should be taken ; and such as 
 has been found by long experience in the course of human affairs, to answer the end ; for 
 such conduct shows that the party was regardful of social duty, and free from any manner 
 of guilt. 1 East's C. L. 265, 266. 
 
PERSONS OFFENDING THROUGH COMPULSION. 10 — 1 
 
 ' ing to kill a housebreaker in his house, kill one of his own family, he 
 is not punishable for it.(a) 
 
 But if the act he intended doing were unlawful, he may in general 
 be punishable for the act he committed through ignorance or mistake, 
 in the same way as if he wilfully did it : as, for instance, if a man in- 
 tending to kill A. kill B., he will be equally guilty as if he had 
 killed A. [2] 
 
 (h) Persons offending through compulsion. 
 
 If a man be forced to commit an offence, by such threats or menaces 
 of personal violence by others, as induces a well-grounded apprehension 
 of death or other bodily harm in case he should refuse to do it, this 
 will in general excuse him.(&) Even if a man be thus compelled to 
 join rebels or foreign enemies, in a time of rebellion or war, he will be 
 excused for remaining with them so long as the compulsion lasted. (c) 
 But no threat to burn his house or destroy his property, or the like, 
 will be sufficient for this purpose.(c£)[3] 
 
 (a) Cro. Car. 538 ; 4 Bl. Com. 27. (d) McGrowther's case, Fost. 13; 9 St. 
 
 (6) See 3 Inst, 10 ; 1 Hale, 56 ; Fost. 21*7. Trial, 566. 
 (c) Fost. 216, 217. 
 
 [2] Ignorance of the tow' will not excuse any person of capacity enough to he responsible for 
 his criminal acts ; for all are presumed to know the law. 4 Black. Com. 27 ; 1 Russ on Cr. 
 20 ; Arch. Cr. PI. 17. And it is no defence for a foreigner charged with a crime committed 
 in this country, that he did not know he was doing wrong ; the act not being an offe ce in 
 his own country. 1 Russ. on Cr. 24 ; Bex v. Esop, 7 Car. & P. 456. But ignorance or mis- 
 take of facts is in some cases allowed as an excuse for the misadvertent commission of crime ; 
 as if a man intending to kill a thief in his own house kill one of his own family : in this case 
 he is guilty of no offence. 1 Hale's P. C. 42 ; 4 Black. Com. 27 ; 1 Russ. on Cr. 20. So in 
 larceny, the criminal intent may, in many cases, be rebutted by showing that the goods 
 were taken through mistake — the person accused supposing they were his. Roscoe's Cr. Bv. 
 471 ; 1 Hale's P. C. 507. And the same principle applies to a variety of cases ranging under 
 the heads of accident or misfortune. It should be observed, however, that the rule alluded 
 to proceeds upon the supposition that the original intention of the accused was lawful. For 
 if an unforeseen consequence ensue from an act which was in itself unlawful, and in its origi- 
 nal nature wrong and mischievous, the actor is criminally responsible for whatever conse- 
 quence may ensue. 4 Bl. Com. 27 ; Arch. Cr. PI. 18. 
 
 The rule also supposes an opportunity to know the law. Therefore, where a person was 
 indicted for an offence under a statute, upon the high seas, shortly after the statute was 
 passed and before notice of it could have reached the place where the offence was committed, 
 the judges held that as he could not have been tried for the offence before that act, and as he 
 could not have heard of it, he ought to be pardoned. 1 Russ. & Ry. C. C. 1. 
 
 In this state, however, to prevent the ignorance of a recent statute from injuring a party, 
 it is provided that no act of the legislature shall take effect until twenty days after it is pass- 
 ed, unless there be a special provision to the contrary. 1 R. S. 157, sec. 12. 
 
 [3] The fear which compels a man to do an unwarrantable action, ought to be just and 
 well grounded. 1 Blk. Com. 30. 
 
10 2 PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 
 
 (i) Persons who are the innocent agents of others. 
 
 If a man procure an offence to be committed by an innocent agent, 
 the man alone is guilty, the agent not. If an idiot or madman be in- 
 cited to commit murder, and he do it, the inciter is guilty of the mur- 
 der, the idiot or madman not. And the inciter in such a case is 
 deemed principal in the first degree, though not present when the 
 offence was committed: he cannot be deemed accessory, for that neces- 
 sarily presupposes a principal, and the idiot or madman, so -far from 
 being principal, is merely the instrument of death in the hands of the 
 inciter ; he must therefore be principal, and in the first degree, 
 [*11] *for there is no other person whom he can aid or abet.(a) 
 
 Where a man was indicted as principal in stealing coal from 
 a mine, and it appeared that was lessee of one mine, and from thence 
 caused his workmen to take the coal of other persons under the adjoin- 
 ing land, — he was convicted, the judge, (Brie, J.) saying that although 
 the prisoner did not, by his own hand, pick or remove the coal, yet if 
 a man do, by means of an innocent agent, an act which amounts to a 
 felony, the employer, and not the agent, is the person accountable for 
 the act.(&) 
 
 So, where a post-office order was payable to Wm. Smart, and the 
 prisoner, knowing the fact, forged Smart's name to a letter authorizing 
 one Bartlett to sign Smart's name to the usual receipt on the money 
 order, which Bartlett (not knowing the fraud) accordingly did, and re- 
 ceived the amount of the post office order, and gave it to the prisoner 
 for Smart : the prisoner being indicted for forgery of the receipt, Piatt, 
 B., after confering with the Lord Chief Baron, held that Bartlett must 
 be deemed an innocent agent, and the case must therefore be con- 
 sidered the same as if the prisoner himself signed the receipt.(c) 
 
 So, where A. employed B., a die-sinker, to make dies which would 
 impress the resemblance of the two sides of a shilling, and B. imme- 
 di tely communicated the matter to the officers of the Mint, who 
 directed him to execute A.'s order, and he did so : A. being indicted 
 for the offence as principal and convicted, the judges held that he was 
 rightly convicted.(eZ)[l] 
 
 (a) 1 Hale, 61T ; 2 Hawk. o. 29, s. 11. (c) R. v. Clifford, 2 Car. & K. 202. 
 
 (b) R. v. Bleasdale, 2 Car. & K. 165. (d) R v. Barman, 1 Car & K. 295. 
 
 [1] It is a principle of law, both in civil and criminal cases, that a person is liable for what 
 is done under his presumed authority. And in the application of the principle, an exception 
 to the general rule in respect to the presumption of innocence is admitted in some cases of 
 agency. Thus, in an indictment against a contract baker for selling unwholesome bread, 
 where it appeared that the defendant allowed his foreman to use alum, though not in such 
 quantities as to render the bread unwholesome, it was held by the court that he might be 
 legally convicted, on proof that the servant had introduced alum into the bread to a delete- 
 
PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 11 
 
 rious extent. 6 Car. & Payne, N. P. 292. So, the directors of a gas company were held 
 criminally answerable, on an indictment for a nuisance, for an act done by their superintend- 
 ent an engineer, under a general authority to manage the works, though they were person- 
 ally ignorant of the particular plan adopted, and though such plan was a departure from the 
 original and understood method, which the directors had no means to suppose was discon- 
 tinued. Cam. Rep. 12; 3 M. & S. Rep. 11; 2 Camp. & Jerv. Rep. 493; 2 Tyr. Rep. 523. 
 In like manner, where a libel ia sold in a bookseller's shop, by his servant, in the ordinary 
 course of his employment, this is evidence of a guilty publication by the master ; though, in 
 general, an authority to commit a breach of the law is not to be presumed. The exception 
 is founded on public policy, lest irresponsible persons should be put forward, and the princi- 
 pal and real offender should escape. But such exception is not conclusive against the mas- 
 ter, who may still prove, under the plea of not guilty, that the publication was in fact made 
 " without his authority, consent or knowledge, " and that there was " no want of care or cau- 
 tion on his part." The same law is applied to newspapers. 10 Johns. Rep. 443 ; 2 Taylor on 
 Ev. p. 95, sec. 93. 
 
 INSANITY, HOW JAR A DEFENCE IN CRIMINAL PROSECUTIONS. 
 
 Before dismissing the subjects of this section, it may be well to treat the question of in- 
 sanity at more length, than has been done in the text. 
 
 In prosecutions for erimes, the defence of insanity is so frequently interposed, as to ren- 
 der the subject one of prominent importance in criminal jurisprudence. A due regard for 
 the ends of justice, and the peace and welfare in society, no less than mercy to the accused, 
 requires that it should be throughly and carefully weighed. 
 
 " Whether a man is sane or not, whether partially or totally deranged, and if only in part 
 deranged, where accountability to the laws shall begin, and where end, are questions of 
 great and embarrassing subtlety. The laws of the sane mind are but little understood ; 
 much less are the laws L if indeed such phraseology is predicable of it, of the unsound mind 
 understood. We can judge of the one, by external developments and by our own con- 
 sciousness ; of the other, only by external indicia. There are few men so balanced in 
 intellect as not at some times, and upon some subjects, to approximate towards derange- 
 ment. All men, almost, have some train of thought in which the mind delights to run, at 
 a comparative abandonment of the ordinary routine of thought. Intellectual enthusiasm, 
 not unfrequently, approaches the line of insanity. The numerous cases of mania, or delu- 
 sion, which leave the mind sound in general, but as to certain things, shattered or wholly 
 obliterated, have increased the difficulty of any specific general rule as to the responsibility 
 of those who are generally classed as insane. A crazy, or partially deranged person, is a 
 mystery ; such «■ person is so. by the visitation of God. The subject of insanity, is not 
 responsible — humanity, reason, the law so adjudges. To punish an insane man, would be 
 to rebuke Providence. Hence, in all definitions of murder, of which I have knowledge, the 
 requirement is found, that the slayer must be of sound mind. Our own statutory definition, 
 requires him to be " a person of sound memory and discretion." Accountability for crime 
 pre supposes a criminal intent, and that requires a power of reasoning upon the character 
 and consequences of the act; a will subject to control. For this reason it is, that a homi- 
 cide, committed under the influence of incontrollable passion, is not murder. The reason 
 is dethroned, the will is not subject to control, and in tenderness to human infirmity, he is 
 considered as not having a malicious, murderous intent. The difficulty is to determine who 
 is "a person of sound memory and discretion," who is incapable of a criminal intent, who 
 is incapable of reasoning upon the character and consequences of the act, and who is 
 without control over his will. That is the work, that the labor. Men are, upon proof of 
 the criminal act, presumed to be responsible, and therefore the burden of proving irre- 
 sponsibility devolves upon the defendant. 
 
 "One does not fail to perceive, also, in looking into this subject, that the rules now recog- 
 nized as governing pleas of insanity, are different from what they were in the time of Lord 
 
11 — 1 PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 
 
 Coke, and indeed, long subsequent to his day. The improvements in the science of medical 
 jurisprudence, a more enlarged benevolence, and a clearer sense of christian obligation, 
 have relaxed the cruel severity of the earlier doctrines. The plea of insanity is now, as it 
 ought to be, as much favored as any other plea resting upon the ground of reason and 
 justice. Courts are now not afraid to trust the juries with the investigation of questions of 
 insanity ; nor are all cases now, as they once were, subjected to the application of one rule, 
 unjust because of its sweeping generality. There was a time when the insane were looked 
 upon as victims of Divine vengeance, and therefore to be cast out of the protection of human 
 laws, and beyond the pale of human sympathies. Not so now. The insane hospitals of 
 our land, founded by provision of public law and by private charity, prove that the insane 
 are the peculiar care of the State, as well as of private benevolence. 
 
 "As late as 1723, it was held in England, that for a man to be insane, he must have no more 
 reason than a brute, an infant, or wild beast. 
 
 " It seems then to have been believed that for derangement to protect its subject from crimi- 
 nal responsibility, it must be total in its character ; either manifesting itself in wild, ungovern- 
 able, and incongruous actions, or in stupid and passive imbecility. It seems not to have 
 been then understood that men might ordinarily act sensibly, and yet be insane ; and reason 
 acutely or learnedly upon most subjects, whilst they were upon some one or more totally 
 deranged. This inhuman rule cut off from the benefits of this plea, all the partially insane, 
 and admitted to its privileges only the raving maniac or the drivelling idiot." See opinion 
 of the court in the case of Roberts v. The State of Georgia, 3 Kelly's Rep. 310. 
 
 Insanity may be divided into dementi accidentalis, or adventitious insanity ; and dementia 
 affectata or voluntary insanity. 
 
 Those who labor under the first mentioned kind are such as have had understanding, but 
 have lost the use of their reason, by disease, grief, or other accident. 1 Blk. 304. "When 
 the affliction is permanent, constant, and total, it is called madness. When it is temporary, 
 the subject only being afflicted at times, enjoying lucid intervals when his reason returns, it is 
 called Iwnacy ; the name of hmacy being taken from the influence which the moon was sup- 
 posed to have in all disorders of the brain, a notion which has been exploded by the soun- 
 der philosophy of modern times. 
 
 Voluntary insanity, is that which is produced by intoxication, which puts men in a tempo- 
 rary phrenzy. 
 
 Where the insanity is total, fixed, and permanent, it excuses all acts ; so likewise, during 
 the frenzy, in the case of a man laboring under adventitious insanity. " But the difficulty in 
 these cases, is to distinguish between a total aberration of intellect and a partial or temporary 
 delusion merely, notwithstanding which, the patient may be capable of discerning right from 
 wrong ; in which case he will be guilty in the eye of the law, and amenablo to punishment. 
 Partial insanity, says Lord Hale, is the condition of many, especially of melancholy persons, 
 who generally discover their defects, in excessive fear and grief, and yet are not wholly 
 destitute of reason ; and this partial insanity seems not to excuse them in the commission of 
 any crime. 1 Hale, 30. Doubtless, he adds, most persons that are felons of themselves, and 
 others, are under a degree of partial insanity when they commit these offences ; it is very 
 difficult to define the invisible line that divides perfect from partial insanity ; but it must 
 rest upon circumstances duly to be weighed and considered, both by the judge, and the jury, 
 least on the one side there be a kind of inhumanity towards the defects of human nature, or 
 on the other side, too great indulgence given to great crimes. It seems clear, that to excuse 
 a man from punishment upon the ground of insanity, it must be proved distinctly that he 
 was not capable of distinguishing right from wrong at the time he did the act, and did not 
 know it to be an offence against the laws of God and nature. If there be a partial degree 
 of reason, a competent use is sufficient to havo restrained those passions which produced the 
 crime ; if there be thought and dosign, a faculty to distinguish the nature of actions to dis- 
 cern tho diH'crence between moral good and ovil, ho will be responsible for his actions. 
 Whether the prisoner were sano or insane, at the time the act was committed, is a question 
 of fact triablo by the jury and dependent upon the previous and contemporaneous acts of the 
 party." Seo Arch. Cr. PI. and cases cited. 
 
■PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 11 — 2 
 
 The application of the rules and principles laid down in these cases to each particular case 
 as it may arise, will necessarily in many instances, be attended with difficulty; more especi- 
 ally with regard to the true interpretation of the expressions which state that the prisoner, 
 in order to be a proper subject of exemption from punishment on the ground of insanity 
 should appear to have been unable " to distinguish right from wrong," or to discern " that he 
 was doing a wrong act," or should appear to have been " totally deprived of his imderstanding 
 and memory." 1 Russ. 13. 
 
 In the case of Lord Ferrers, who was tried before the house of lords for murder, it was 
 proved that his lordship was oecasionlly insane, and incapable from his insanity of knowing 
 what he did, or judging of the consequences of his actions. But the murder was deliberate ; 
 and it appeared that when he committed the crime he had capacity sufficient to form a design 
 and know its consequences. It was urged, on the part of the prosecution, that complete 
 pessossion of reason was unnecessary to warrant the judgment of the law, and that it was 
 sufficient if the party had such possession of reason as enabled him to comprehend the na- 
 true of his actions, and discriminate between moral good and evil. And he was found guil- 
 ty and executed. Lord F&rer's case, 19 St. Tri. (by Howell,) 947. 
 
 In Arnold's case, who was tried at Kingston, before Mr. J. Tracey, for maliciouly shooting 
 at Lord Onslow, it appeared clearly that the prisoner was to a certain extent, deranged, and 
 that he had greatly misconceived the conduct of Lord Onslow; but it also appeared that he 
 had formed a regular design, and prepared the proper means for carrying it into effect. Mr. 
 Justice Tracey left the case to the jury, observing that where a person has committed a great 
 offence, th.9 exemption of insanity must be very clearly made out before it is allowed; 
 that it is not every kind of idle and frantic humour of a man, or something unaccountable 
 in his actions which will show him to be such a madman as is to be exempted from punish- 
 ment; but that where a man is totally deprived of his understanding and memory, and 
 does not know what he is doing, any more than an infant, a brute, or a wild beast, he will 
 properly be exempted from justice or the punishment of the law. Arnold's case, MS. ; Col- 
 lison on Lunacy, 475; 8 St. Tri. 318 ; 16 St. Tri. (by Howell,) 764, 765. The jury found 
 the prisoner guilty ; but at Lord Onslow's request he was reprieved ; and was confined in 
 prison thirty years till he died. 
 
 In Parker's case, who was indicted for aiding the king's enimies, by entering into the 
 French service in time of war between France and this country, the defence of the prisoner 
 was rested upon the ground of insanity ; and a witness on his behalf stated, that his gen- 
 eral character from a child was that of a person of very weak intellects ; so weak that it exci- 
 ted surprise in -the neighborhood when he was accepted for a soldier. But the evidence for 
 the prosecution had shown the act to have been done with considerable deliberation and pos- 
 session of reason and that the prisoner, who was a marine, having heen captured by the 
 French and carried into the Isle of France, after a confinement of about six weeks, entered 
 voluntarily into the French service, and stated to a captive comrade that it was much more 
 agreeable to be at liberty and have plenty of money than remain confined in a dungeon. 
 The attorney general replied to the defence of insanity, that before it could have any weight 
 in rebutting a charge so clearly made out, the jury must be properly satisfied that at the 
 time when the crime was committed the prisoner did not really know right from wrong. 
 And the jury, after hearing the evidence summed up, without hesitation pronounced the 
 prisoner guilty. (Parker's case, tried by a special commission, in Horsemonger-lane, 11th of 
 February, 1812, for high treason, Collis. 477.) 
 
 Thomas Bowler was tried at the Old Bailey, on the 2nd July, 1812, for shooting at and 
 wounding William Burrowes. The defence set up for the prisoner was, insanity occasioned 
 by epilepsy; and it was deposed, by the prisoner's housekeeper, that ho was seized with an 
 epileptic fit on the 9th July, 1811, and was brought home apparently lifeless, since which 
 time she had perceived a great alteration in his conduct and demeanor ; that he would fre- 
 quently rise at nine o'clock in the morning, eat his meat almost raw, and lie on the grass ex- 
 posed to the rain ; and that his spirits were so dejected that it was necessary to watch him 
 least he should destroy himself. Mr. Warburton, the keeper of a lunatic asylum, deposed 
 that it was characteristic of insanity occasioned by epilepsy for the patient to imbibe violent 
 
 5 
 
11 — 3 PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 
 
 antipathies against particular individuals, even his dearest friends, and to have a desire of ta- 
 king vengeance upon them from causes wholly imaginary, which no persuasion could remove, 
 and that yet the patient might be rational and collected upon every other subject. He had 
 no doubt of the insanity of the prisoner, and said he could not be deceived by assumed ap- 
 pearances. A commission of lunacy was also produced, dated the lUh of June, 1812, and 
 an inquisition taken upon it, whereby the prisoner was found insane, and to have been so 
 from the 30th of March last. The report of this case, in Collison on Lunacy, 673, does not 
 state the day on which the prisoner shot at "W. Burrowes. 
 
 Mr. Justice Lo Blanc, after summing up the evidence, concluded by observing to the jury, 
 that it was for them to determine whether the prisoner, when he committed the offence with 
 which he stood charged, was incapable of distinguishing right from wrong, or under the in- 
 fluence of any illusion in respect of the prosecutor which rendered his mind at the moment 
 insensible of the nature of the act he was about to commit ; since in that case he would not 
 be legally responsible for his conduct. 
 
 On the other hand, provided they should be of opinion that when he committed the of- 
 fence he was capable of distinguishing right from wrong, and not under the influence of any 
 illusion as disabled him from discerning that he was doing a wrong act, he would be amena- 
 ble to the justice of his country, and guilty in the eye of the law. The jury, after considera- 
 ble deliberation, pronounced the prisoner guilty. Bowler's case, Old Bailey, 2d July, 1812, 
 Collis. 6T3, in the note. 
 
 In Bellingham's Case, who was tried for the murder of Mr. Perceval, a part of the prison- 
 er's defence, not urged by himself but by his counsel, was insanity; and upon this part of 
 the case, Mansfield, Chief Justice, is reported to have stated to the jury, that in order to 
 support such a defence, it ought to be proved by the most distinct and unquestionable evi- 
 dence that the prisoner was incapable of judging between right and wrong; that in fact it 
 must be proved beyond all doubt, that at the time he committed the atrocious act with 
 which he stood charged, he did not consider that murder was a crime against the laws of 
 God and nature ; and that there was no other proof of insanity which would excuse murder, 
 or any other crime. That in the species of madness called lunacy, where persons are sub- 
 ject to temporary paroxysms, in which they are guilty of acts of extravagance, such persons 
 committing crimes when they are not affected by the rnalady would be, to all intents and 
 purposes, amenable to justice ; and that so long as they could distinguish good from evil 
 they would be answerable for their conduct. And that in the species of insanity in which 
 the patient fancies the existence of injury, and seeks an opportunity of gratifying revenge 
 by some hostile act, if such a person be capable in other respects of distinguishing right 
 from wrong, there would be no excuse for any act of atrocity which he might commit under 
 this description of derangement. BeWngham's Case, Old Bailey, 15th May, 1812, Collis. 
 Addend. 636. " I will not refer to Bellingham's Case, as there are some doubts as to the 
 mode in which that case was conducted." Per Sir J. Campbell, Atty. &en. in Meg. v. Ox- 
 ford, 9 C. & P. 533. 
 
 In the trial of Oxford, for shooting at the Queen, Lord Denman, C. J. told the jury, 
 " Persons prima facie must be taken to be of sound mind till the contrary is shown. But a 
 person may commit a criminal act, and not be responsible. If some controlling disease was, 
 in truth, the acting power within him which he could not resist, then he will not be re- 
 sponsible. It is not more important than difficult to lay down the rule by which you are to 
 be governed." " On the part of the defence, it is contended that the prisoner was non com- 
 pos mentis, that is (as it has been said) unable to distinguish right from wrong, or, in other 
 words, that from the effect of a diseased mind he did not know at the time that tho act he 
 did was wrong." " Something has been said about the power to contract and to make a 
 will. But I think that those things do not supply any test. The question is, whether tho 
 prisoner was laboring under that species of insanity which satisfies you that he wa s quite 
 unaware of tho naturo, character, and consequences of the act he was committing, or, in 
 other words, whether ho was under the influonce of a diseased mind, and was really uncon- 
 scious at the timo he was committing the act, that it was a crime?" Beg. v. Oxford, 9 0, 
 & P. 525. 
 
PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 11—4 
 
 James Hadsfield was tried in the court of king's bench, in the year 1800, on an indictment 
 for high treason, in shooting at the king, in Drury-lane theatre ; and the defence made for 
 the prisoner was insanity. It was proved that he had been a private soldier in a dragoon 
 regiment, and in the year 11 93 received many severe wounds in battle, near Lisle, which 
 had caused partial derangement of mind, that he had been dismissed from the army on ac- 
 count of insanity. Since his return to this country he had been annually out of his mind 
 from the beginning of spring to the end of the dog-days, and had been under confinement as 
 a, lunatic. When affected by his disorder, he imagined himself to hold intercourse with 
 God ; sometimes called himself God, or Jesus Christ, and used other expressions of the 
 most irreligious and blasphemous kind ; aud also committed acts of the greatest extrava- 
 gance ; but at other times he appeared to bo rational, and discovered no symptom of mental 
 incapacity or disorder. On the 11th of May preceding his commission of the act in question 
 his mind was very much disordered, and he used many blasphemous expressions. At one 
 or two o'clock on the following morning, he suddenly jumped out of bed, and alluding to 
 his child, a boy of eight months old, of whom he was usually remarkably fond, said he was 
 about to dash his brains out against the bed-post, and that God had ordered him to do so ; 
 and upon his wife screaming, and his friends coming in, he ran into a cupboard and de- 
 clared he would lie there, it should be his bed, and God had said so ; and when doing this, 
 having overset some water, he said he had lost a great deal of blood. On the same and the 
 following day he used many incoherent and blasphemous expressions. On the morning of 
 the 1 5th of May he seemed worse, said that he had seen God in the night, that the coach 
 was waiting, and that he had been to dine with the king. He spoke very highly of the 
 king, the royal family, and particularly of the Duke of York. He then went to his master's 
 workshop, whence he returned to dinner at two, but said that he stood in no need of meat, 
 and could live without it. He asked for tea between three and four o'clock, and talked of 
 being made a member of the society of Odd Fellows ; and, after repeating his irreligious ex- 
 pressions, went out and repaired to the theatre. On the part of the crown it was proved 
 that he had sat in his place in the theatre nearly three quarters of an hour before the king 
 entered ; that at the moment when the audience rose, on his majesty's entering his box, he 
 got up above the rest, and presenting ■-■ pistol loaded with slugs, fired it at the king's per- 
 son, and then let it drop ; and when he fired, his situation appeared favorable for taking 
 aim, for he was standing upon the second seat from the orchestra in the pit ; and he took a 
 deliberate aim, by looking down the barrel, as a man usually does when taking aim. On 
 his apprehension, amongst other expressions, he said that " he knew perfectly well his 
 life was forfeited ; that he was tired of life, and regretted nothing but the fate of a woman 
 who was his wife, and would be his wife a few days longer, he supposed." These words he 
 spoke calmly, and without any apparent derangement ; and with equal calmness repeated 
 that he was tired of life, and said that "his plan was to get rid of it by other means; he did 
 not intend anything against the life of the king ; he knew the attempt only would answer 
 his purpose." 
 
 The counsel for the prisoner, (the late Lord Erskine, then at the bar,) in his very able 
 address to the jury, put the case as one of a species of insanity in the nature of a morbid 
 delusion of the intellect, and admitted that it was necessary for them to be satisfied that the 
 act in question was the immediate unqualified offspring of the disease. And Lord Kenyon 
 held that as the prisoner was deranged immediately before the offence was oommitted, it 
 was improbable that he had recovered his senses in the interim j and although were they 
 to run into nicety, proof might be demanded of his insanity at the precise moment when the 
 aet was committed ; yet, there being no reason for believing him to have been at that 
 period a rational and accountable being, he ought to be acquitted. Iladfield's Case, Collis. 
 480. The verdict of the jury was, "Not Guilty; it appearing to us that he was under the 
 influence of insanity when the act was coniraitted." 
 
 Nesbitt, J., in delivering the opinion of the court in Roberts v. The State of Georgia, 3 
 Kelly's Rep. 310, thus speaks of the efforts of Mr. Erskine in this case: "The great speech 
 of Mr. Erskine in defence of Hadsfield, has shed new light upon the law of insanity. So 
 conclusive was that celebrated argument, that it is now looked upon by the profession as 
 
11—5 PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 
 
 authority. In the records of forensic eloquence, ancient and modern, nothing is to be found 
 surpassing Erskine's defence of Hadsfield, for condensation, perspicuity and strength of 
 reasoning, as well as for beauty of illustration and purity of style. In that case, he assumed 
 the position that a man might have reason sufficient to distinguish between the right and 
 wrong of the act about to be committed, and yet be irresponsible ; that the mind might be 
 cognizant of the distinction between right and wrong as regards the act, and yet, by reason 
 of some delusion, overmastering the will, there might be no criminal intent. To apply this 
 proposition, it was admitted by Mr. Erskine, that the act itself must be connected with the 
 peculiar delusion under which the prisoner labors. This doctrine can be best understood by 
 illustration, and it is illustrated by Hadsfleld's case. He had been a soldier in the British 
 armies, and had received several severe wounds, one of which, on the head, it was thought, 
 had injured the brain, and caused the derangement under which he suffered. He imagined 
 that he had constant intercourse with the Almighty, that the world was coming to a con- 
 clusion, and like our blessed Saviour, he was to sacrifice himself for its salvation. Unwilling 
 to commit suicide, it was argued by Mr. Erskine, he sought to do an act which would forfeit 
 his life to the law, and thus bring about the sacrifice, which, in his morbid imagination, he 
 held necessary to the salvation of the world. Under the influence of this delusion, he shot 
 at the king, in the theatre. Now, in this case, it was not pretended that Hadsfield was a 
 raving madman, or an imbecile idiot ; nor was it contended that he was incapable of know- 
 ing that shooting a pistol at the king, would, or might kill him, or that if he should kill the 
 king, that he would deserve death for the act ; (for that really was what he desired,) or that 
 he was incapable of distinguishing between the right and the wrong of the act ; but it was 
 contended, that the delusion under which he labored had so shattered his intellect, as to 
 control his will, and impel him resistlessly to the commission of the act, and therefore there 
 was no criminal motive, no wicked or mischievous intent, and if these were wanting, he 
 was irresponsible. To use the language of Mr. Erskine, " Reason is not driven from her 
 seat, but distraction sits down upon it, along with her, holds her trembling upon it, and 
 frightens her from her propriety." Hadsfield was acquitted ; and since that day, the excep- 
 tion which his case established has been recognized." See Erskine's Speech in Appendix 
 to Cooper's Medical Jurisprudence; 29 Howell State Tr. 1281. 
 
 In Clark v. The State of Ohio, 12 Ohio Rep. 483, the court say : " The question may be 
 safely stated to you thus : Was the accused a free agent in forming the purpose to kill Cyrus 
 Sells ? Was he, at the time the act was committed, capable of judging whether that act 
 was right or wrong 1 In trying this question of insanity, it should be borne in mind that the 
 law presumes every person of the age of fourteen years to be of sufficient capacity to form 
 the criminal purpose ; to deliberate and premeditate upon the acts, which malice, anger 
 hatred, revenge, or other evil disposition might impel him to perpetrate, to defect this legal 
 presumption which meets the defence of insanity at the threshold, the mental alienation 
 relied upon by the accused, must be affirmatively established, by positive or circumstantial 
 proof. Tou must be satisfied, from the evidence, that the perverted condition of the faculties 
 of the mind, indicated in the main question already stated as excusing from crime, did exist 
 at the time Sells was killed. It is not sufficient if the proof barely shows that such a state of 
 mind was possible ; nor is it sufficient if it merely shows it to have been probable. The 
 proof must be such as to overrule the legal presumption of sanity ; it must satisfy you that 
 he was not sane. It would be unsafe, to let loose upon society great offenders upon mere 
 theory, hypothesis, or conjecture. A rule that would produce such a result, would endanger 
 community by creating a means of escape from criminal justice which the artful and ex- 
 perienced would not fail to embrace. The defence of insanity is not uncommon. It is by 
 no means a new thing in a court of justice. It is a defence often attempted to be made, 
 more especially in cases where aggravated crimes have been committed, under circumstances 
 which afford full proof of the overt acts, and render hopeless all other means of evading 
 punishment. While then, the plea of insanity is to be regarded as a not less full and com- 
 plete, than it is a humane defence when satisfactorily established, and while you should 
 guard against inflicting the penalty of crime upon the unfortunate maniac, you should be 
 equally careful that you do not suffer an ingenious counterfeit of the malady to furnish pro- 
 
PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 11—6 
 
 tection to guilt. Supposing that you should find the proof of insanity prior to, and subse- 
 quent to the homicide sufficient, counsel have requested us to instruct you that the defend- 
 ant must go acquit, even if you should findthat the act was committed during alucid interval. 
 "We do not so understand the law. An act done during a lucid interval, is an act for which 
 the law will hold the individual accountable. By a lucid interval we mean that state of 
 mental sanity which is indicated in the main question that I have already stated to you. 
 Proof of prior insanity throws-upon the state the burden of proving the crime perpetrated 
 during a lucid interval. It defects the legal presumption of sanity, and creates a legal pre- 
 sumption of continued lunacy, which, like the former, must be overthrown by proof." 
 
 To amount to a complete bar of punishment, either at the time of committing the offence 
 or of the trial, the insanity must have been of such a kind, as entirely to deprive the prisoner 
 of the use of reason, as applied to the act in question, and the knowledge that he was doing 
 wrong in committing it. If, though somewhat deranged, he is able to distinguish right from 
 wrong, m his own case and to know that he was doing wrong in the act which he committed, 
 he is liable to the full punishment of his criminal acts lb. 13 ; Alisons Or. Law, cited. 
 
 In a leading case in England, Sex. v. Offord, 5 C. & P. 168, where it appeared that the 
 defendant labored under a notion that the inhabitants of Hadleigh, and particularly the de- 
 ceased, were continually issuing warrants against him, with intent to deprive him of his life 
 and liberty, Lord Lyndhurst, C. B., told the jury that " they must be satisfied before they 
 could acquit the prisoner on the ground of insanity, that he did not know when he commit- 
 ted the act what the effect of it, if fatal, would be with reference to the crime of murder. 
 The question was, did he know that he was committing an offence against the laws of God 
 and nature ?" 
 
 Mr. Shelford (Shelf, on Lunacy, 458,) thus states the rule : — " If a person liable to partial in- 
 sanity which only relates to particular subjects or notions, upon which he talks and acts like a 
 madman, still has as much reason as makes him to distinguish between right and wrong, he 
 will be liable to that punishment which the law attaches to his crime." 
 
 In the case of Rogers, (Abner Rogers' Tr. p. 275,) the Supreme Court of Massachusetts 
 say : " A person, in order to be punishable by law, or in order that his punishment by law 
 may operate as an example to deter others from committing criminal acts under like circum- 
 stances, must have sufficient memory, intelligence, reason, and will, to enable him to distin- 
 guish between right and wrong, in regard to the particular act about to be done ; to know 
 and understand that it will be wrong, and that he will deserve punishment by committing 
 it." This rule does not require total insanity. . If the prisoner is perfectly sane as to all other 
 things, and wants, as to the act about to be committed, reason enough to distinguish between 
 the right and wrong of that act — if he does not know and understand that that act is wrong, 
 and that he will deserve punishment for committing it, he is irresponsible. So, also, on the 
 other hand, according to this rule, the person may be deranged as to other things, yet, if he 
 has sufficient reason to distinguish as to the right and wrong of the particular act about to be 
 committed — if he knows and understands that for committing that act he will be liable to 
 be punished — he is a responsible agent, and ought to be convicted. 
 
 In a late case (Commonwealth v. Mosler,) before the Supreme Court of Pennsylvania, the de- 
 fence of insanity was set up in a indictment for murder, and discussed at great length. Chief 
 Justice Gibson, in delivering the charge to the jury, said : 
 
 " Insanity is mental or moral — the latter being sometimes called homicidal mania, and pro- 
 perly so. It is my purpose to deliver to you the law on this ground of defence, and not to 
 press upon your consideration, at least to an unusual degree, the circumstances of the pre- 
 sent case on which the law acts. A man may be mad on all subjects, and then, though he 
 may have glimmerings of reason, he is not a responsible agent. This is general insanity, but 
 if it be not so great in its extent or degree as to blind him to the nature and consequences 
 of his moral duty, it is no defence to an accusation of crime. It must be so great as entirely 
 to destroy his perception of right and wrong; and it is not until that perception is thus de- 
 stroyed that he ceases to be responsible. It must amount to delusion or hullucination, con- 
 trolling his will and making the commission of the act, in his apprehension, a duty of over- 
 
11 7 PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 
 
 ruling necessity. The most apt illustration of the latter is the perverted sense of religious 
 obligation, which has caused men sometimes to sacrifice their wives and children. 
 
 " Partial insanity is confined to a particular subject — the man being sane on every other. 
 In that species of madness, it is plain that he is a responsible agent, if he were not instigated 
 by his madness to perpetrate the act. He continues to be a legitimate subject of punishment, 
 although he may have been laboring under a moral obliquity of perception, as much so as if 
 he were merely laboring under an obliquity of vision. A man whose mind squints, unless 
 impelled to crime by this very mental obliquity, is as much amenable to punishment as one 
 whose eye squints. On this point, there has been a mistake as melancholy as it is popular. 
 It has been announced by learned doctors, that, if a man has the least taint of insanity en- 
 tering iuto his mental structure, it discharges him of all responsibility to the laws. To this 
 monstrous error may be traced both the fecundity in homicides which has dishonored this 
 country, and the immunity which has attended them. The law is that, whether the insanity 
 be general or partial, the degree of it must be so great as .to haye controlled the will of its 
 subject, and to have taken from him the freedom of moral action. 
 
 " But there is a moral or homicidal insanity, consisting of an irresistible inclination to kill, 
 or to commit some other particular offence. There may be an unseen ligament pressing on 
 the mind, drawing it to consequences which it sees,. but cannot avoid, and placing it under a 
 coercion which, while its results are clearly perceived, is incapable of resistance. The doc- 
 trine which acknowledges this mania is dangerous in its relations, and can be recognized only 
 in the clearest cases. It ought to be shown to have been habitual, or, at least, to have evin- 
 ced itself in more than a single instance. It is seldom directed against a particular individ- 
 ual ; but that it may be so, is proved by the case of the young woman who was deluded by 
 an irresistible impulse to destroy her child, though aware of the heinous nature of the act. 
 The frequency of this constitutional malady is fortunately small, and it is better to confine it 
 withinthe strictest limits. If juries were to allow it as a general motive, operating in cases 
 of this character, its recognition would destroy social order as well as personal safety. To 
 establish it as a justification in any particular case, it is necessary either to show, by clear 
 proofs, its contemporaneous existence, evinced by present circumstances, or the existence of 
 an habitual tendency developed in previous eases, becoming in itself a second nature." 
 
 The jury convicted the prisoner, and the court was unanimous in refusing a new trial. 
 Com. v. Mosler, 6 Penn. L. J. 93 ; 4 Barr. Rep. 264. 
 
 In a recent case in Massachusetts, (Com. v. Rogers, 1 Mete. 500,) the court says: " In or- 
 der to constitute a crime, a person must have intelligence and capacity enough to have a 
 criminal intent and purpose ; and if his reason and mental powers are either so deficient that 
 he has no will, no conscience or controlling mental power ; or if, through the overwhelming 
 violence of mental disease, his. intellectual power is, for the time, obliterated, he is not a re- 
 sponsible moral agent, and is not punishable for criminal acts. 
 
 " But these are extremes easily distinguished, and not to be mistaken. The difficulty lies 
 between these extremes, in the cases of partial insanity, where the mind may be clouded 
 and weakened, but not incapable of remembering, reasoning, and judging, or so perverted 
 by insane delusion, as to act under false impressions and influences. In these cases, the rule 
 of law, as we understand it, is this : A man is not ,to be excused from responsibility, if he 
 has capacity and reason sufficient to enable him to distinguish between right and wrong, as 
 to the particular act he is then doing ; a knowledge and consciousness, that the act lie is doing is 
 wrong and criminal, and will subject him to punishment. In order to be responsible, he 
 must have sufficient power of memory to recollect the relation in which he stand* to others, 
 and in which others stand to him; that the act he is doing is contrary to the plain dictates 
 of just and right, injuries to others, and a violation of the dictates of duty. 
 
 " On the contrary, although he may be laboring under partial insanity, if he still under- 
 stands the nature and character of his act, and its consequences ; if he has a knowledge that 
 it is wrong and criminal, and a mental power sufficient to apply that knowledge to his own 
 case, and to know that, if he does the act, he will do wrong and receive punishment ; such 
 partial insanity is not sufficient to exempt him from responsibility for criminal acts. 
 
 "If then, it is proved that the mind of the accused was in a diseased and unsound state, 
 
PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 11—8 
 
 the question will be, whether the disease existed to so high a degree, that for the time be- 
 ing, it overwhelmed the reason, conscience and judgment, and whether the prisoner, in com- 
 mitting the homicide, acted from an irresistible and uncontrollable impulse. 
 
 " The character of the mental disease relied upon, to excuse the accused in this case, is 
 partial insanity, consisting of melancholy, accompanied by delusion. The conduct may be 
 in many respects regular, the mind acute, and the conduct apparently governed by rules of 
 propriety, and at the same time there may be insane delusion by which the mind is pervert- 
 ed. The most common of these cases, is that of monomania, when the mind broods over 
 one idea, and cannot be reasoned out of it. 
 
 " The questions, then, in the present case, will be these : 1. "Was there such a delusion 
 and hallucination? 2. Did the accused act under a false, but sincere belief that the warden 
 had a design to shut him up, and under that pretext destroy his life ; and did he take this 
 means to, prevent it ? 3. Are the facts of such a character, taken in connexion with the 
 opinions of the professional witnesses, as to to induce the jury to believe that the accused 
 had been laboring for several days under monomania, attended with delusion; and did this 
 indicate such a diseased state of the mind, that the act of killing the warden was to be con- 
 sidered as an outbreak or paroxysm of disease, which, the time being, overwhelmed and su- 
 perseded reason and judgment, so that the accused was not an accountable agent ?" 
 
 The law relative to the accountability of insane persons, is fully reviewed in the case of 
 Freeman, (4 Denio, 9,). where the court say: "The statute declaring that no insane person 
 can be tried, sentenced to any punishment, or punished for any crime or offence, while he 
 continues in that state, although new as a legislative enactment in New York, was not in- 
 troductory of a new rule, for it is in strict conformity with the common law on the subject. 
 ' If a man,' says Blackstone, ' in his sound memory, commits a capital offence, and before ar- 
 raignment for it he becomes mad, he ought not to be arraigned for it ; because he is not able 
 to plead to it, with that advice and caution that he ought. And if, after he has pleaded, the 
 prisoner becomes mad, he shall not be tried : for how can he make his defence ? If after he 
 be tried and found guilty, he loses his senses before judgment, judgment shall not be pronoun- 
 ced; and if, after judgment, he becomes of non-sane memory, execution shall be stayed, for 
 peradventure, says the humanity of the English law, had the prisoner been of sound memory, 
 he might have alleged something in stay of judgment or execution. Indeed,' it is added, 
 ' in the bloody reign of Henry the eighth, a statute was made, which enacted that if a per- 
 son, being compos mentis, should commit high treason, and after fall into madness, he. might 
 be tried in his absence, and should suffer death, as if he were of perfect memory. But this 
 savage and inhuman law was repealed by the statute of 1 and 2 Ph. and M. l-. 10. For, as 
 is observed by Sir Edward Coke, the execution of an offender is, for example, ut poena ad 
 paueos metus ad omnes perveneat; but so it is not, when a madman is executed, but should be 
 a miserable spectacle, both against law, and of extreme inhumanity and cruelty, and can be 
 no example to others.' 4 Blk. Com. 24. The true reason why an insane person should not 
 be tried is, that he is disabled by an act of God, to make a just defence, if he have one. As 
 is said in 4 Harg. State Trials, 205, 'there may be circumstances lying in his private know- 
 ledge, which would prove his innocency, of which he can have no advantage, because not 
 known to the persons who shall take upon them his defence.' The most distinguished wri- 
 ters on criminal jurisprudence, concur in these humane views, and all agree that no person, 
 in a state of insanity, should ever be put upon his trial for an alleged crime, or be made to 
 suffer the judgment of the law. A madman cannot make a rational defence, and as to pun- 
 ishment, fwriosus solo furore punttwr. 1 Hale P. C. 34, 35 ; 4 Blk. Com. 395, 396 ; 1 Ch. Cas. 
 Lond. ed. 1841, p. 761 ; 1 Buss, on Cr. ed. 1845, p. 14 ; Shelf, on Lunacy, 467, 468 ; Stock, on 
 Non Com. 35, 36. 
 
 " By the 39 & 40 Geo. 3, ch. 94, sec. 2, it is enacted 'that if any person indicted for any 
 offence, shall be insane, and shall upon arraignment, be found so to be, by a jury lawfully 
 impannelled for that purpose, so that such person cannot be tried upon such indictment, it 
 shall be lawful for the court before when any such person shall brought to be arraigned, to 
 direct such finding to be recorded, and thereupon to order such person to be kept in strict 
 custody till His Majesty's pleasure shall be known.' 1 Russ. 15. The question upon this 
 statute, is the same as upon ours, that is, is the alleged offender insane. Russell says, p. 15 : 
 
11 — 9 PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 
 
 1 If a prisoner have not, at the time of the trial, from the defect of his faculties, sufficient in- 
 telligence to understand the nature of the proceedings against him, the jury ought to find 
 that he is not sane, and upon such finding, he may be ordered to be kept in custody under 
 this act.' 
 
 " In the case of the The Queenv. Goods, 1 A. & E. 536, which occurred in 1837, the priso- 
 ner was brought into the court of Queen's bench, and arraigned on au indictment for a mis- 
 demeanor. As he showed clear symptoms of insanity a jury was immediately impannelled to 
 try whether he was then insane or not ; and upon evidence given, as well as upon his ap- 
 pearance in court, the jury found that he was insane. The prisoner was thereupon detained 
 in custody under the statute. 
 
 " In Leys case, 1 Lewin's C. C. 239, on the trial of a similiar question, Hullock, B. said to 
 the jury. ' If there be a doubt as to the prisoner's sanity, and the surgeon says that it is 
 doubtful, you cannot say that he is in a fit state to be put upon his trial.' 
 
 "The course at common law, was much the same. In Frith's case, 22 How. State Tr. SOI , 
 318, which preceded the act of 39 and 40 Geo. 3, to which reference has been made, the pri- 
 soner was arraigned for high treason, and a jury sworn to enquire whether he was of sound 
 mind and understanding, or not, Lord Kenyon, chief justice of the court of king's bench pre- 
 sided at the trial, assisted by one of the judges of the court of common pleas, and one of the 
 barons of the court of exchequer. It was observed by the court to the jury, that the inquiry 
 was not whether the prisoner was insane when the alleged crime was committed, nor was 
 it necessary to enquire at all, what effect his present state of mind might have when that 
 question came to be discussed ; but the humanity of the law of England had prescribed that 
 no man should be called upon to make his defence, at a time when his mind was in such a 
 situation that he appeared incapable of doing so : that however guilty he might be, the trial 
 must be postponed to *• time when, by collecting together his intellects, and having them 
 entire, he shall be able so to model his defence, if he had one, as to ward off the punishment 
 of the law ; and it was for the jury to determine whether the prisoner was then in that state 
 of mind. Shelf, on Lunacy 468. 
 
 " With these lights before us, the construction of the statute which forbids the trial of any 
 insane person, cannot be attended with much difficulty. A state of general insanity, the 
 mental powers being wholly perverted or obliterated, would, necessarily preclude a trial ; for 
 a being in that deplorable condition, can make no defence whatever. Not so, however, 
 where the disease is partial, and confined to some subject other than the imputed crime, and 
 the contemplated trial. A person in this condition may be fully competent to understand 
 his situation in respect to the alleged offence, and to conduct his defence with discretion and 
 reason. Of this, the jury must judge ; and they should be instructed that if such is found to 
 be his conditibn, it will be their duty to pronounce him sane. In the case at bar, the court 
 professed to furnish a single criterion of sanity, that is, a capacity to distinguish between 
 right and wrong, this, as a test of insanity, is by no means invariably correct ; for while a 
 person has a very just perception of the moral qualities of most actions, he may at the same 
 time, as to some one in particular, be absolutely insane, and consequently, as to this, be in- 
 capable of judging accurately between right and wrong. If the delusion 'extends to the al- 
 leged crime, or the contemplated trial, the party manifestly, is not in a fit condition to make 
 his defence, however sound his mind may, in other respects, be. Still, the insanity of such 
 a person being only partial, a jury, under a charge like that given in this case, might find 
 the prisoner sane ; for in most respects, he would be capable of distinguishing between right 
 and wrong. Had the instruction been, that the prisoner was to be deemed sane, if he had 
 a knowledge of right and wrong m respect of the crime with which he stood charged, there 
 would have been but little fear that the jury could be misled ; for a person who justly appre- 
 hends the nature of a charge made against him, can hardly be supposed incapable of defend- 
 ing himself in regard to it, in a rational way. At the same time, it would be well to impress 
 distinctly on the minds of jurors, that they are to guage the mental capacity of the prisoner, 
 in order to determine whether he is so far sane as to be competent in mind to make his de- 
 fence, if he has one ; for unless his faculties are equal to that task, he is not in a fit condition 
 to be put on hia trial. For the purpose of such a question, the law regards a person thus 
 
PERSONS PUNISHABLE OR EXCUSABLE EOR CRIME. H — 10 
 
 disabled by disease, as non compos mentis, and he should be pronounced unhesitatingly, to be 
 insane within the true intent and meaning of this statute. 
 
 " Where insanity is interposed as a defence to an indictment for an alleged crime, the 
 inquiry is always brought down to the single question of a capacity to distinguish between 
 right and wrong, at the time when the act was done. This is the rule laid down by all the 
 English judges but one, in the late case of McNaughten while pending in the house of lords, 
 cited ante. In Reg. v. Oxford, 9 0. & P. 525, Lord Denman, C. J., charged the jury in this 
 manner: 'The question is, whether the prisoner was laboring under that species of insanity 
 which satisfies you, that he was quite unaware of the nature, character, and consequences 
 of the act he was committing, or in other words, whether he was under the influence of a 
 diseased mind, and was really unconscious, at the time he was committing the act, that it 
 was a crime.' The insanity must be- such as to deprive the party charged with crime of the 
 use of reason in regard to the act done. He may be deranged on other subjects, but if 
 capable of distinguishing between right and wrong in the particular act done by him, he is 
 justly liable to be punished as a criminal. 
 
 " Such is the undoubted rule of the common law on this subject. Partial insanity is not, 
 by that law, necessarily an excuse for crime, and can only be so, where it deprives the 
 party of his reason, in regard to the act charged to be criminal. Nor, in my judgment, was 
 the statute on this subject, intended to abrogate or qualify the common law rule. The 
 words of the statute are, "No act done by a person in a state of insanity can be punished 
 as an offence." 2 R. S. 697, § 2. The clause is very comprehensive in its terms, and at first 
 blush, might seem to exempt from punishment any act done by' a person who is insane 
 upon any subject whatever. This would indeed be a mighty change in the law, as it would 
 afford absolute impunity to any person in an insane state, although his disease might be 
 confined to a single and isolated subject. If this is the meaning of the statute, jurors are 
 no longer to inquire whether the party was insane ' in respect to the very act with which 
 he is charged, 1 but whether he was insane in regard to any act or subject whatever; and 
 if they find such to have been his condition, render a verdict of not guilty. But the statute 
 is not so understood by me. I interpret it as I should have done if the words had been 'no 
 act done by a person in a state of insanity, in respect to such act, can be punished as an 
 offence.' The act, in my judgment, must be an insane' act, and not merely the act of an 
 insane person. This was plainly the rule of law before the statute was passed, and although 
 that took place more than sixteen years since, I am not aware that it has,- at any time, been 
 held, or intimatod by any judicial tribunal, that the statute had abrogated, or in any respect 
 modified this principle of the common law. 
 
 "The jury found, not as the issue required them to do, that the prisoner was or. was not, 
 insane, but that he was ' sufficiently sane in mind and memory to distinguish between right 
 and wrong.' This verdict was defective : it did not directly find any thing, aBd certainly 
 not the point in issue, but evaded it, by an argumentative finding. As the utmost, the jury 
 only made an approach towards the point to be decided, but failed to reach it. They should 
 have been required to pass directly on the question of insanity, and should not have been 
 allowed to evade it, by an argumentative verdicf of any sort. Such a finding as this,- would 
 be objectionable in a civil proceeding, (In the matter of Morgan, 1 Paige Rep. 296,) and in a 
 criminal case should not be allowed." 
 
 INSANITY FROM DRUNKENNESS. 
 
 Vohmtary insanity produced by intoxication is considered rather as an aggravation than 
 as an excuse for an offence ; for it is said that one who is drunk has no excuse thereby, 
 but whatsoever ill he thereby commits, his drunkenness only aggravates it. 1 Just. 247. But 
 where the primary cause of the phrenzy was involuntary, or where it has become habitual 
 and confirmed it is then an excuse for crime. Thus, if a man through the ignorance of a 
 physician, or by the contrivance of others, take some drug which produces temporary 
 insanity, he will be excused for criminal acts committed while under its effects. Nor will 
 one be liable for any crime perpetrated under the influence of insanity which is habitual 
 
 6 
 
11 — 11 PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. 
 
 and fixed, though caused by frequent intoxication, or though it be otherwise originally 
 contracted by his own act. Arch. Cr. Law 12. 
 
 In United States v. Alexander Drew, 5 Mason's U. S. Rep., the opinion of the court was 
 as follows : — 
 
 Story, J. " We are of opinion, that the indictment Upon these admitted facts cannot be 
 maintained. The prisoner was unquestionably insane at the time of committing the offence. 
 And the question made at the bar is, whether insanity whose remote cause is habitual 
 drunkenness is or is not an excuse in a court of law for a homicide committed by the party 
 while so insane, but not at the time intoxicated, or under the influence of liquor. "We are 
 clearly of opinion that insanity is a competent excuse in such a case. In general, insanity 
 is an excuse for the commission of every crime, because the party has not the possession of 
 that reason which includes responsibility. An exception is, when the crime is committed 
 by a party while in a fit of intoxication, the law not permitting a man to avail himself of 
 the excuse of his own gross vice and misconduct to shelter himself from the legal conse- 
 quences of such crime. But the crime must take place, and be the immediate result of the 
 fit of intoxication, and while it lasts ; and not, as in this case, » remote consequence, super- 
 induced bythe antecedent exhaustion of the party, arising from gross and habitual drunk- 
 enness. However criminal in a moral point of view, such an indulgence is, and however 
 justly a party may be responsible for his acts arising from it, to Almighty God, human 
 tribunals are generally restricted from punishing them, since they are not the acts of a 
 reasonable being. Had the crime been committed while Drew was in a fit of intoxication, 
 he would have been liable to be convicted of murder. As he was not then intoxicated, but 
 merely insane from an abstinence from liquor, he cannot be pronounced guilty of the offence. 
 The law looks to the immediate, and not to the remote cause ; to the actual state of the party, 
 and not to the causes which remotely produced it. Many species of insanity arise remotely 
 from what, in a moral view, is a criminal neglect or fault of the party, as from religious melan- 
 choly, undue exposure, extravagant pride, ambition, &c. Tet such insanity has always 
 been deemed a sufficient excuse for any crime done under its influence." 
 
 In Oornwell v. State of Tennessee, Martin & Terger, (Tenn.) Rep. 147, the court charged 
 the jury, "that if at the time the homicide was committed the prisoner had not sufficient 
 understanding to distinguish right from wrong, and was in a state of insanity, it would be 
 excusable — but that must be proved ; but if his insanity or bad conduct arose from drunken- 
 ness, it was no excuse. There may be cases where insanity is produced by long con- 
 tinued habits of intoxication ; but it must be a permanent insanity. Insanity which is the 
 immediate effect of intoxication, is no excuse ; the party being fully responsible for all his 
 acts." The counsel for the prisoner requested the court to charge the jury, if they believed 
 all the circumstances of the case, that the prisoner, at the time of slaying, labored under a 
 temporary suspension of reason, although intoxication might have been the exciting 
 cause — it is a circumstance of excuse or mitigation, and more especially, if intoxication 
 were not intended at the time of drinking, but the same was accidental, or a consequence 
 not intended or apprehended. But the court refused to charge as above. The jury found 
 the prisoner guilty of murder. On appeal in the nature of a writ of error, judgment 
 affirmed. See also, Bennett v. Tennessee, Mar. & Yerger, 133. 
 
 But in Massachusetts, in the case of Commonwealth v. French, Thacher's Cr. Cas. 163, it 
 was held that a temporary mental derangement produced by drinking intoxicating liquor, 
 under which a boy of thirteen years of age committed a theft, authorized a jury to acquit 
 him. 
 
 The following may be enumerated among numerous similar cases tried in the State of 
 New York: — 
 
 N. M. Thomas was tried May 13, 1840, for the murder of Hallet Greenman, at Florida, 
 Montgomery Co. N. Y., Nov. 24, 1839. The homicide was committed during a fit of intoxi- 
 cation, and the prisoner was found guilty. The judges of the supreme court and the 
 attorney-general certified to the legality of the conviction and the sufficiency of the evi- 
 dence. The sentence was commuted to imprisonment for life. 
 
 John Smock was tried in December, 1839, for the murder of his wife in the city of New 
 
PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. H — 12 
 
 York, Tuesday, June 26, 1839. They were both very intemperate, and in a fit of drunken- 
 ness the wound was inflicted, of which she died, a few days after. The physician of the 
 city prison testified that he was laboring under deliriwm tremens at the time. He was 
 found guilty, with a recommendation to mercy; in accordance with which the sentence was 
 commuted to imprisonment for life. 
 
 Robert Miller was tried in October, 1839, for the murder of Barney Leddy, at Utica, 
 April, 1839. On the trial it was proved that the killing grew out of a drunken quarrel and 
 fight, (without- previous animosity,) brought on by a jug of liquor which the deceased 
 brought to Miller's house. The accused was convicted and hung. 
 
 Jabez Fuller was tried in March, 1840, for the murder of his wife at Somerstown, "West- 
 chester Co. May 26, 1839. They were both very intemperate, and in a fit of intoxication, 
 prompted by jealousy, he injured her so severely by stamping upon her, that she died four 
 days afterward from the effect of her bruises. It appeared from the testimony, that he was 
 of intemperate habits, and quick tempered ; but when sober, of a civil and quiet demeanor. 
 He was convicted and hung, May 22, 1840. 
 
 John Johnson was tried in November, 1840, for the murder of his wife at Buffalo, 
 August 19, 1840. It was proved on the trial that he was much intoxicated on the day of 
 the murder, though several witnesses gave him a good character, as a quiet and peaceable 
 man, industrious and trusty. He was convicted and hung on the 19th of June, 1841. 
 
 It has been held that where the material question is, whether an act was premeditated, or 
 done only with sudden heat and impulse, the fact of the party being intoxicated is a circum- 
 stance proper to be taken into consideration. In Pigmain v. The State of Ohio, 14 Ohio Rep, 
 555, the court says : " Drunkenness is no excuse for crime ; yet in that class of crimes and 
 offences which depend upon guilty knowledge ; or the coolness and deliberation with which 
 they shall have been perpetrated, to constitute their commission, or fix the degree of guilt, 
 it should be submitted to the consideration of the jury. If this act is of that nature that the 
 law requires it should be done with guilty knowledge, or the degree of guilt depends upon 
 the calm and deliberate state of the mind, at the time of the commission of the act, it is pro- 
 per to show any state or condition of the person that is adverse to the proper exercise of the 
 mind, and the undisturbed possession of the faculties. The older writers regarded drunken- 
 ness, as an aggravation of the offence, and excluded it for any purpose. It is a high crime 
 against one's self and offensive to society and good morals ; yet every man knows that acts 
 may be committed in a fit of intoxication, which would be abhorred in sober moments. And 
 it seems strange that any one should ever have imagined that a person who committed an 
 act from the effect of drink, which he would not have done if sober, is worse than the man 
 who commits it from sober and deliberate intent. The law regards an act done in sudden 
 heat, in a moment of phrenzy, when passion has dethroned reason as less criminal than the 
 same act when performed in the cool and undisturbed possession of all the faoulties. There 
 is nothing the law so much abhors as the cool, deliberate and settled purpose to do mischief. 
 That is the quality of a demon ; whilst that which is done on great excitement, as when the 
 mind is broken up by poison or intoxication ; although to be punished, may, to some extent, 
 be softened and set down to the infirmities of human nature. Hence, not regarding it as an 
 aggravation, drunkenness, as anything else, showing the state of mind or degree of know- 
 ledge, should go to the jury. Upon this principle, in modern cases, it has been permitted to 
 be shown that the accussed was drunk when he perpetrated the orime of killing, to rebut 
 the idea that it was done in a cool and deliberate state of the mind necessary to constitute 
 murder in the first degree. The principle is undoubtedly right. So on a charge of passing 
 counterfeit money ; if the person was so drunk that he actually did'not know that he had 
 passed a bill that was counterfeit, he is not guilty. It often times requires much skill to de- 
 tect a counterfeit. The crime of passing counterfeit money oonsists of knowingly passing it, 
 to rebut that knowledge, or to enable the jury to judge rightly of the matter, it is competent 
 for the person charged to show that he was drunk at the time he passed the bill. It is a 
 circumstance, among others, entitled to its just weight." 
 
 It has been held in Pennsylvania that drunkenness does not incapaoitate a man from form- 
 ing a premeditated design of murder, but as drunkenness olouds the understanding and ex- 
 
11—13 PERSONS PUNISHABLE OB EXCUSABLE EOR CRIME. 
 
 ertes passion, it may be evidence of passion only, and of want of malice and design. Perm. 
 V. JSTFall, Adds. 25*7. It may also be considered in cases where what the law deems suffi- 
 cient provocation has been given, because the question is, in such cases, whether the fatal 
 act is to be attributed to the passion of anger excited by the previous provocation; and that 
 passion is more easily excitable in a person when in a state of intoxication than- when he is 
 sober. R. v. Thomas, 7 C. 3s P. 817; B. v Pearson, 2 Lewin, 144. But if there is really a 
 previous determination to resent a slight affront in a barbarous manner, the state of drunk- 
 enness in which the prisoner was, ought not to be regarded. lb. So upon an indictment 
 for stabbing, the jury may take into their consideration, among other circumstances, the fact 
 of the prisoner being drunk at the time, in order to determine whether he acted under a 
 oona fide apprehension that his person or property was about to be attacked. MarslmWs 
 case, 1 Lewin, 76; Parke, J. Goodier's case, Ibid. So where the question is whether words 
 have been uttered with a deliberate purpose, or are merely low and idle expressions, the 
 drunkenness of the party uttering them, is proper to be considered. Bex v. Tlwmas, lb. 
 
 In Reg. v. Cruse, 8 C. & P. 546, Patteson, J. said, "although drunkenness is no excuse, in 
 any crime whatever, it is often of very great importance, in cases where it is a question of 
 intention. A person may be so drunk, as to be utterly unable to form any intention, and 
 yet, he may be guilty of very great violence." So with regard to intention, in a case of 
 maliciously stabbing, drunkenness might perhaps, be adverted to, according to the nature of 
 the instrument used. If a man used a stick, a jury would not infer a malicious intent so 
 strongly against him if drunk, when he made an intemperate vise of it, as .they would if he 
 had used a different kind of weapon ; but where a dangerous instrument was used, which, 
 if used, must produce grievous bodily harm, drunkenness could have no effect on the consi- 
 deration of the malicious intent of the party. Rex- v.Meakin, 7 C. & P. 297. See 1 Russell 
 on Or. 8. 
 
 In the case of The State v. Bullock, (13 Alabama Rep. 413,) the court, among other re- 
 marks, says: — "It is insisted by the prisoner's counsel that, although drunkenness does not 
 excuse or justify the offence, yet it may be evidence of passion only, and want of malice. It 
 is certainly true there must be malice, either express or implied, to constitute the offence 
 charged in the indictment, and any circumstances calculated to disprove its existence, was' 
 proper to be considered by the jury. Malice may be imferred from the deadly character of 
 the weapon used in the commission of the act. Would the legal presumption deducible from 
 the use of such weapon, be rebutted by the fact that the party was intoxicated ? Suppose 
 the prisoner in a state of intoxication, with a large knife, such as was calculated to produce 
 death, had, without provocation, assaulted and slain his victim, would it, at common law, 
 have been a sufficient plea to an indictment for murder, that he was drunk ? If so, then 
 drunkenness would excuse the crime of murder. But we have seen that it is no- excuse for 
 crime. If, then, in the present case, had the prisoner killed Robertson with the deadly 
 weapon with which he stabbed him, the crime would not have been reduced from murder 
 to manslaughter, by reason of his intoxication, it.follows that the court did not err in refus- 
 ing the charge asked for, and in charging the jury that the drunkenness of the prisoner 
 (which we must presume, in the absence of proof to the contrary, was voluntary, should not 
 be considered by them. The authorities referred to by the counsel for the prisoner, we ap- 
 prehend, do not conflict with the views here expressed. In tho case of Perms, v. M'Fatt, 
 (Adds. Rep. 257,) the law, as applicable to murder in the first degree, as defined by a stat- 
 ute of that state, is laid down as contended for, by the counsel for the prisoner. So, also, in 
 the case of Swan v. The State, (4 Humph. Tenn. Rep. 136,) the point is similarly ruled. In 
 these cases it became important to ascertain whether the homicide was of that ' kind of wil- 
 ful, deliberate, malicious, and premeditated hilling' which, by the provisions of the statute, con- 
 stituted the crime of murder in the first degree, as contradistinguished from murder in the 
 second degree. The question involved was the mental status at the time of the commission 
 of the act, and with reference to it. Was it one of fixed purpose, by deliberation and pre- 
 meditation, to take the life of the deceased? The mental state required by the statute to 
 constitute the crime, was one of deliberation and premeditation. Hence, drunkenness, which 
 excluded such condition of the mind as was necessary to constitute the statutory offence, 
 
PERSONS PUNISHABLE OB EXCUSABLE FOR CRIME. 11—14 
 
 ■was allowed to ba considered by the jury not as an excuse for the crime, but to show it had 
 not been committed. Indeed, the court, in the last case referred to, assert that drunkenness 
 is no excuse or justification for any crime. 'Whether the offence committed was the result 
 of a preconceived determination to kill and murder, or was induced by the voluntary intoxi- 
 cation of the prisoner, he is nevertheless guilty." See Boston Law Reporter, vol. 10. 
 
 Thus much for the plea of insanity at common law, whether the insanity is accidental or 
 voluntary. In most of the states of this country, provision is also made by statute, for inter- 
 posing this defence. Some allusion has already been made to the statute of New York. 
 That statute is as follows : 
 
 "No act done by a person in a state of i sanity, can be punished as an offence, and no 
 insane person be tried, sentenced to any punishment, or punished for any crime or offence 
 ■while he continues in that state." 2 N. T. R. S. 682, part 4, tit. 7, sec. 2. 
 
 In Maryland, "where any person shall be indicted for a crime or misdemeanor, and such 
 person sets up, or alleges insanity or lunacy in his defence, it stall be the duty of the jury 
 impanneled to try such person by their verdict, to find whether such person was, at the time 
 of the commission of such offence, or still is, insane, lunatic, or otherwise; and if such jury 
 find, by their verdict, that such person was, at the time of committing the offence, and then 
 is, insane or lunatic, that then it shall be the duty of the court before whom such trial was 
 had, to cause such person to be sent to the almshouse of the county to which such person 
 belonged, at the time of the commission of such act, or to a hospital, or to some other place 
 better suited, in the judgment of said court, to the condition of such prisoner, there to be 
 confined until such person shall have recovered his reason, and be discharged by due course 
 of law: provided, that nothing in this section contained, shall he construed to allow any one 
 to avail himself of the plea or allegation of drunkenness, at the time of the commission of 
 the offence of which he is indicted." Dorsey's Laws, p. 881, ch. 197, sec. 1. 
 
 " And where any person shall be arrested for improper or disorderly conduct, or is 
 charged with any crime, offenee or misdemeanor, and who appears to the court, or is alleged 
 to be lunatie or insane, and against whom there is no indictment, it shall be the duty of the 
 several county courts of this state, or of Baltimore city court, as the case may be, if in 
 session at the time of such arrest or charge, to cause a jury of twelve good and lawful men 
 to be impannelled forthwith, and to charge such jury to inquire whether said person was, at 
 the time of the commission of the act complained of, insane or lunatic, and still is so; and 
 if such jury shall find that such person was, at the time of the commission of such act, 
 insane or lunatic, and stilHs so, that then it shall be the duty of the court to cause such 
 person to be sent to the almshouse of the county to which such person belongs, or to a hos- 
 pital, or to some other place better suited in the judgment of the said court to the condition 
 of such prisoner, there to be confined at the expense of the county, or Baltimore city, as 
 the case may be, until he shall have recovered and been discharged by due course of law." 
 Ibid. sec. 2. 
 
 " And if during the recess of such courts, any person appearing to be, or alleged to be 
 insane or lunatic shall be arrested and charged for any crime or misdemeanor before any 
 judge of any of the said county courts, or before any judge of Baltimore city court, it thall 
 be the duty of such judge, and he is hereby empowered to issue an order to the sheriff of 
 the county where said offence hath been committed, requiring him forthwith to summon a 
 jury of twelve good and lawful men, and to charge such jury to inquire whether such per- 
 son was lunatic or insane at the time such offence was committed, and then is so; and if 
 such jury shall find that the person so charged, was insane or lunatie at the time of the 
 commission of the said offence, and still is so, then it shall be the duty of such judge to send 
 (or commit) such person to the almshouse or other place, as is hereinbefore mentioned, and 
 to do all other that the court of which he is a judge could, or might lawfully do, under this 
 act, was such court in sessioh: Provided nevertheless, that if such insane or lunatic person 
 be possessed of real and personal property, the annual profit or rent of which shall be 
 adequate to his reasonable support in any established hospital or asylum for the reception 
 of insane or lunatic persons, it shall be the duty of the court to appoint a trustee of the 
 
11 15 PERSONS PUNISHABLE OB EXCUSABLE FOR CRIME, 
 
 estate of said lunatic or insane person, and to require of the said trustee a bond to the state 
 of Maryland in such penalty, and with audi security, as the keeper shall approve, with, 
 condition that he will cause the said lunatic or insane person to be confined and supported 
 in some hospital or asylum for the reception of insane or lunatic persons until such person 
 shall have recovered his reason ; and that such trustee will faithfully administer and fully 
 account for all such estate, income and effects of the said lunatic as shall come to his pos- 
 session, or be under his care or direction." 
 
 In Massachusetts, ""When any person held in prison on a charge of having committed an 
 indictable offence, shall not be indicted by the grand jury, by reason of insanity, the grand 
 jury shall certify that fact to the court ; and thereupon, if the discharge, or going at large' of 
 such insane person shall be deemed manifestly dangerous to the peace and safety of the 
 community, the court may order him to be committed to the state lunatic hospital, other- 
 wise, he shall be discharged." R. S. 758, u. 136, sec. 15. 
 
 " When any person indicted for an offence, shall, on trial, be acquitted by the jury, by 
 reason of insanity, the jury in giving their verdict of not guilty, shall state that it was given 
 for such cause ; and thereupon, if the discharge or going at large of such insane person 
 shall be considered manifestly dangerous to the peace and safety of the community the court 
 may order him to be committed to the state lunatic hospital; otherwise, he shall be dis- 
 charged." Ibid. 162, v. 13T, sec. 12. 
 
 "If it shall appear, to the satisfaction of the governor and council, that any convict who 
 is under sentence of death, has become insane, the warrant for his execution may be 
 delayed, or, if such warrant has been issued, the execution thereof, . may be respited from 
 time to time, so long as the governor and council shall think proper ; and if any female con- 
 vict, who is under sentence of death, shall be quick with child, the governor and council 
 shall forbear to issue a warrant for her execution, or if such warrant has been issued, the 
 execution thereof shall be respited until it shall appear to the satisfaction of the governor 
 and council that such female convict is no longer quick with child." Ibid. 161, a. 1 39, sec. 12. 
 
 In New York, "No act done by a person in a state of insanity can be punished as an 
 offence ; and no insane person can be tried, sentenced to any punishment, or punished for 
 any crime or offence while he continues in that state." - 2 N. T. R. S. 582, part 4, tit. 1, 
 sec. 2. 
 
 In Pennsylvania, "In every case in which it, shall be given in evidence upon the trial of 
 any person charged with any crime or misdemeanor, that such person was insane at the 
 time of the commission of such offence, and such person shall be acquitted, the jury shall 
 be required to find specially whether such person was insane at the time of the commission 
 of such offence, and to declare whether such person was acquitted by them, on the ground 
 of such insanity, and if they shall so find and declare, the court, before whom the trial was 
 had shall have power to order such person to be kept in strict custody, in suohplaoe, and in 
 such manner, as to the said court shall seem fit, at the expense of the county in which the 
 the trial was had, so long as such person shall continue to be of unsound mind." Act of June 
 13, 1836, sec. 58. 
 
 "The same proceedings may be had, if any person indicted for an offence, shall,- upon 
 arraignment, be. found to be a lunatic, by a jury lawfully impanneled for the purpose, or if 
 upon the trial of any person so indicted, such person shall appear to the jury charged with 
 such indictment, to be a lunatic, in which case, the court shall direct such finding to be 
 recorded, and may proceed as aforesaid." lb. sec. 59. 
 
 "In every case in which- any person charged with any offence shall be brought before the 
 court to be discharged for want of prosecution, and shall, by the oath and. affirmation, of one 
 or more credible persons, appear to be insane, the court shall order the prosecuting attorney 
 to send before the grand jury a written allegation of such insanity, in the nature of a bill of 
 indictment, and thereupon, the said grand jury shall make inquiry into the case, as in cases 
 of crime, and make presentment of their finding to said court, and if said grand jury shall 
 affirm said written allegation, they shall endorse the same thereon, and thereupon the oourt 
 shall order a jury to be impanneled to try the insanity of such person, but before a trial 
 thereof be ordered, the court shall direct notice thereof to be given to the next of kin of such. 
 
PERSONS PUNISHABLE OR EXCUSABLE FOR CRIME. H — 16 
 
 person, by publication, or otherwise, as the case may require ; and if the jury shaE find 
 such person to be insane, the like proceedings may be had as aforesaid." lb. sec. 60. 
 
 "Provided that if the kindred or friends of any person who may have been acquitted as 
 aforesaid on the ground of insanity, or in default of such, the guardians, overseers, or super- 
 visors of any county, township, or place, shall give security, in such amount as shall be 
 satisfactory to the court, with condition that such lunatic shall be restrained from the com- 
 mission of any offence, by seclusion or otherwise ; in such ease it shall be lawful for the 
 court to make an order for the enlargement of such lunatic, and his delivery to his kindred 
 or friends, or as the case may be, to such guardians, overseers, or supervisors." lb. sec. 61. 
 
 " The estate, and effects of every such lunatic shall, in all cases, be liable to the county 
 aforesaid, for the re-imbursement of all costs and expenses paid by such county, in pursuance 
 of such order, but if any person acquitted on the ground of insanity, shall have no estate 
 or effects, the county, township, or place, to which such lunatic may be chargeable, under 
 the laws of this commonwealth, relating to the support and employment of the poor, shall, 
 after notice of his detention, as aforesaid, be liable for all costs and expenses, as aforesaid 
 in like manner as if he had become a charge upon any township not liable for his support, 
 under the laws aforesaid." lb. sec. 62. 
 
 In Vermont, " When any person held in prison on a charge of having committed any 
 offence, shall not be indicted by the grand jury, by reason of insanity, the grand jury shall 
 certify that fact to Jhe court, and thereupon, if the discharge or going at large, of such 
 insane person, shall be deemed manifestly dangerous to the peace and safety of the com- 
 munity, the court may order such person to be confined in the county jail, or some suitable, 
 place, at his own expense, if he have estate sufficient for that purpose, and if not, at the 
 charge of the person or town legally chargeable with his support, and if no person or town 
 be so chargeable, at the expense of the state." R. S. ch. 23, sec 15. 
 
 " When any person prosecuted by indictment or information for any offence, shall, on 
 trial, be acquitted by the jury, by reason of insanity, the jury in giving their verdict of not 
 guilty shall state that it was so given for such cause, and thereupon, if the discharge or 
 going at large of such insane person shall be considered manifestly dangerous to the peace 
 and safety of the community, the court may order him committed, as provided in the pre- 
 ceding section." lb. sec. 16. 
 
 In Georgia, " Drunkenness shall not be an excuse for any crime or misdemeanor, unless 
 suoh drunkenness was occasioned by the fraud, artifice, or contrivance, of other person or 
 persons, for the purpose of having a crime perpetrated, and then, the person or persons, so 
 causing said drunkenness for such malignant purpose, shall be considered a principal, and 
 suffer the same punishment as would have been inflicted on the person or persons commit- 
 ting the offence, if he she, or they, had been possessed of sound reason and discretion." 
 Hotchkiss Stat. Law of Georgia, p. 102. 
 
 No rules can be so specific as to embrace the infinite variety of forms in which insanity 
 or derangement, may show itself. Each case must therefore depend very much upon the 
 circumstances, facts, and developments which attend it. Thus Lord Hale says : It is very 
 difficult to define the invisible line that divides perfect and partial insanity. But it must rest 
 upon circumstances duly to be weighed and considered by the judge and jury; lest on the 
 one side there be a kind of inhumanity towards the defect of human nature, or on the other, 
 too great indulgence be given to great crimes. So Taylor, (Med. Jurisp. 649 :) " There are 
 no certain legal or medical rules whereby homicidal mania may be detected. Each case 
 must be determined by the circumstancos which attend it." See 5 Car. & Payne 168 ; 9 Id. 
 525. So also C. J. Denman before the House of Lords in 1843, says : " It is difficult to lay 
 down any abstract rule on the subject, applicable to all cases. Each case must be decided, 
 , in a great measure, upon the facts and circumstances peculiar to it, under the discretion of 
 the court." 
 
11—17 DEGREES OP GUILT. 
 
 SECTION II. 
 
 DEGREES OP GUILT. 
 
 A PARTY is guilty either as a principal or accessory : as principal, 
 he is either principal in the first degree or in the second ; as accessory, 
 he is either accessory before the fact, or accessory after it. 
 
 (a) Principals. 
 
 The distinction between principals and accessories, only obtains 
 in felonies; in treason and misdemeanors all are principals. [1] 
 
 Principals are either in the first degree or in the second. He who 
 actually commits the offence, is said to be principal in the first degree ; 
 he who is present, aiding and abetting him in doing it, is said to be 
 principal in the second degree.(a) 
 
 Persons who are present at the commission of an offence, are said to 
 be aiding and abetting the party actually committing it, if they 
 [*12J be confederated or *engaged with him in a common design, of 
 which the offence is part,(6) or if by their presence they encour- 
 age him in the commission of it.(c) And persons are said to be so 
 present, who, being engaged in the same design with the person who 
 actually commits the offence, although not actually present at the com- 
 mission of it, are yet at such convenient distance as to be able to come 
 to the immediate assistance of their associate, if required, or to watch 
 to prevent surprise, or the like.(c?) And where a person was waiting 
 outside of a house, to receive goods which his confederate was stealing 
 within, he was holden to be a principal in the theft.(e)[2] 
 
 So persons present, aiding and abetting in part of the offence, may, 
 
 (a) See R. v. Boyce, 4 Burr. 2073. (c) R. v. Murphy, 6 Car. & P. 103. 
 
 (6) R. v. Tattersall, 1 Russ. 22 ; R. v. (d) See Post.. 350-355 ; R. v. Goggerly & 
 
 Stcmdley, R. & Ry. 305 ; R v. Bowen, Car. & Whitford, R. 4. Ry. 343. 
 
 M. 149 ; and see R v. Hornby et oil., 1 Car. («) R. v. Owen, Ry. ft. M. 96. 
 & K. 305. 
 
 [1] 3 Inst. 21, 438; 1 Hale, 233, 613; Dalt. J. u. 161; Post. 341; 12 Co. 812; Co. Lit. 
 57 ; Hawk. b. 2, o. 29, a. 1 ; 4 Bla. Com. Cro. 0. C. 49 ; Whitdker v. English, 1 Bay, 15 ; 
 Chamit v. Parlcer, 1 Rep. Con. Ct. 333 ; State v. Goode, 1 Hawk. 463 ; Cwlin v. State, 4 
 Terger, 143 ; Com. v. McAtee, 8 Dana, 28 ; Com. v. Major, 6 Dana, 293 ; Com. v. Bums, 4 
 J. J. Marshall, 182 ; Com. v. Gillespie, 7 Serg. & Rawle, 469 ; U. S. v. Morrow, 4 Wash. C. 
 C. 733; Com. v. Macomher, 3 Mars. 254; U. S. v. Mills, 1 Peters, 38; State v. Westfield, 1 
 Bailey, 132; States. Barden, 1 Devereux, 518. 
 
 [2] Although a man be present whilst a felony is committed if he take no part in it, and 
 do not act in concert with those who commit it, he will not be a principal in the second 
 degree, merely because he did not endeavor to prevent the felony or apprehend the felon. 
 1 Hale, 439; Post. 350. 
 
 A mere participation in the act, without a felonious participation in the design, will not 
 
PEINCIPALS. 12 
 
 if the offence be completed by their confederate, be indicted as princi- 
 pals : and therefore where two persons, with their umbrella, screened 
 a third whilst he was breaking into a dwelling house in the day time, 
 and then went away, and were not seen near the place whilst the third 
 party was committing a larceny within the house, Gaselee, J., and Gur- 
 ney, B., held that they were principals as to the whole offence, namely, 
 the breaking and entering the dwelling house, and stealing there- 
 in.(a)[2] 
 
 (a) R. v. Jordan et al, 1 Car. & P. 432. 
 
 be sufficient. 1 East, P. 0. 258 ; R. v. Plummer, Kel. 109. Thus, if a master assault 
 another with malice prepense, and the servant, ignorant of his master's felonious design, take 
 part with him, and kill the other, it is manslaughter in the servant, and murder in the master. 
 1 Hale, 446. So, on an indictment under the statute 1 Tict. c. 85, s. 2, charging A. with 
 the capital offence of inflicting a bodily injury dangerous to life, with intent to commit mur- 
 der, and B. with aiding and abetting him, it was held to be essential, to make out the charge 
 as against B., that he should have been aware of A.'s intention to commit murder. Reg. v. 
 Cruse, 8 C. & P. 541. 
 
 In the case of murder by duelling, in strictness both of the seconds are principals in the 
 second degree ; yet Lord Hale considers, that, as far as relates to the second of the party kill- 
 ed, the rule of law in this respect, has been too far strained; and he seems to doubt whether 
 such second shall be deemed a principal in the second degree. 1 Hale, 422, 452. However 
 in a late case it was holden by Patteson, J., that all persons present at a prize fight, having 
 gone thither with the purpose of seeing the prize-fighters strike each other, were principals in 
 the breach of the peace; (R. v. Perkins, 4C. & P. S37 ; see R. v.- Murphy, 6 C. &P. 103 ;) and, 
 upon the same principle the seconds in a duel, being participators in an unlawful act, would 
 both be guilty of murder, if death were to ensue; and so the law was laid down in Reg. v. 
 Young, 8 0. & P. 645, and in Reg. v. Cuddy, 1 C. & K. 210. If the principal were insane at 
 the commission of the act, no person can be-convicted as an aider and abettor of his act. 
 Reg. v. Tyler, 8 0. & P. 616. Arch. Or. Law, 12. But where an insane person collected to- 
 gether a number of persons, who armed themselves with a common purpose of resisting the 
 lawful authorities, and in their presence he shot a peace officer who came to apprehend him 
 under a warrant, it wai held that they were guilty of murder as principals in the first degree ; 
 and that no apprehension of personal danger to themselves from him furnished any excuse to 
 him for assisting in his illegal acts. Id. 
 
 If one encourage another to commit suicide, and is present aiding him while he does so, 
 such person is guilty of murder as a principal ; and if two encourage each other to murder 
 themselves, and one does so, the other being present, but the latter fail in an attempt upon 
 himself, he is principal in the murder of the first : but i£"it be uncertain whether the deceased 
 really killed himself, or whether he came to his death by accident before the moment when 
 he meant to destroy himself, it will not be murder in either. Rex v. Dyson, Euss. & E. C. C. 
 523 ; Rex v. Russell, Moody, 0. 0. 356 ; Rex v. Allison, 9 C. & P. 418. The same point, was 
 determined in an early case in Massachusetts. Com. v. Somen, 13 Mass. 359. It was there 
 said by Parker, 0. J., in charging the jury, " The important fact to be inquired into is, 
 whether the prisoner was instrumental in the death of Jewett, (the deceased.) by advice or 
 otherwise. The government is not bound to prove that Jewett would not have hung him- 
 self had Bo wen's counsel have reached his ear. The very act of advising to the commission 
 of a crime is, in itself, unlawful. The presumption of law is, that advice has the influence 
 and effect intended by the adviser, unless it is shown to have been- otherwise : as that the 
 counsel was received with scoff, or was manifestly rejected and ridiculed at the time it was 
 given." Wharton's Or. Law. p. 29. 
 
 [1] Com. v. Knapp, 9 Pick. Eep. 496 ; State v. Harden, 2 Dev. & Batt. 407 ; State v. 
 Town, "Wright's Ohio Eep. Y 5 ; State v. Coleman, 5 Porter, 32. 
 
 7 
 
12 — 1 DEGREES OF GUILT. 
 
 But if a man be at such a distance from the place where the offence is 
 committed, that he could not assist in it if required, he cannot be deem- 
 ed a principal: and therefore it was holden, that going towards the 
 place where a larceny was to be committed, for the purpose of assisting 
 in carrying off the property, and assisting accordingly, did not make 
 the party a principal in the larceny, where it appeared that he was at 
 such a distance at the time of the felonious taking,' that he could not 
 have assisted in it.(a) So, where persons, having stolen goods from a 
 warehouse, carried them along the street for about thirty yards, and 
 then fetched the prisoner, who was apprised of the" robbery, but not at 
 all acting in it, and he assisted in carrying away the property : it was 
 holden that he was not a principal, but an accessory merely.(J) So, 
 where a servant let another into his master's house, for the purpose of 
 stealing in it,' and where he remained all night ; the servant left the 
 house the next morning and did not return until the evening, and du- 
 ring his absence the other committed a larceny in the house : the ser- 
 vant being indicted as accessory before the fact, it was contended by 
 his counsel that he should have been indicted as principal ; but Coleridge, 
 J., held that there was no ground for the objection, as no part of the 
 larceny was committed whilst the servant was in the house or 
 [*13] could be aiding in it.(c) So, *where several persons were out 
 for the purpose of committing a felony, but, upon an alarm, ran 
 different ways, and one of them, to avoid being, taken, wounded a man 
 who was pursuing him ; it was holden that the others could not be 
 deemed principals in this offence.(d) So, where two persons were rid- 
 ing their horses violently along the . road, seemingly racing, and the 
 first of them passed a man on horseback without injuring him, but 
 the last rode against him, threw him, and he was killed : Patteson, J. 
 held that the first of the two could not be deemed a principal in the 
 homicide, (e) 
 
 The law, however, recognizes no difference between the offence of 
 the principal in the first degree, and of the principal in the second ; 
 both are equally guilty. 
 
 And so immaterial is the distinction considered in practice, that if a 
 man be indicted as principal in the first degree, proof that he was pre- 
 sent aiding and abetting another in committing , the offence, although 
 his was not the hand which actually did it, will support the indict- 
 ment ;{g) and on the other hand, if he be indicted as principal in the 
 second degree, proof that he was not only present, but committed the 
 
 (a) R, v. Kelly, R. & Ry. 421. (d) E. v. White, R. & Ry. 99. 
 
 (b) R. v. King, R. &. Ry. 332. (e) R. v. MwrUn etal, 6 Car. & P. 396. 
 
 (c) R. v. Tuchwell & Perkins, Car. & M. (g) 2 Hawk. o. 34, S. 64. 
 215. 
 
PRINCIPALS. 13 
 
 offence with his own hand, will support the indictment. [1] Therefore 
 if A. be indicted for being present aiding and abetting B. in com- 
 mitting a felony, A. may be convicted, although B. is acquitted.(a) 
 
 So when an offence is punishable by a statute which makes no 
 mention of principals in the second degree, such principals are within 
 the meaning of the statute as much as the parties who actually commit 
 the offence ; and therefore in the case of rape, a person may be con- 
 victed on an indictment charging him with being present aiding and 
 abetting another who actually committed it.(J) 
 
 So, for the same reason, principals in the second degree are always 
 punishable in the same manner as principals in the first degree : this is 
 sometimes expressly mentioned in the statutes relating to the offences, 
 as in Peel's Acts for Larceny, &c.,(c) and for malicious injuries,(c?) in 
 the statute relating to forgery,(e) and in the statute relating to counter- 
 feiting the com,(g) and others ; but such express enactment appears to 
 
 (a) See R. v. Phelps et al., Car. & M. 180. (<2) 1 k 8 G. 4, o. 30, s. 26. 
 
 (6) R. v. Crisham, Car. & M. 187. (e) 1 W. 4. o. 66, s. 25. 
 
 (c) 7 & 8 Geo. 4, e. 29, s. 61. (?) 2 W. 4, c. 34, s. 18. 
 
 [1] The distinction between principals in the first and second degree, it has been said 
 is a distinction without a difference; and, therefore it need not be made in indictments. 
 State v. Fley and RocheUe, 2 Brevard, 338. Such is only the case, however, where the 
 punishment is the same for the two divisions. 2 Hawk. c. 25, s. 64 ; MaclcaUey's case, 9 Co. 
 61 b. ; Post. 345. But where, by particular statute the punishment is different, then prin- 
 cipals in the second degree must be indicted specially, as aiders and abettors. 1 East, 
 P. C. 348, 350: R. v. Home, 1 Leach, 473. In an indictment for murder, if several be charg- 
 ed as principals, one as principal perpetrator, and the others as aiding and abetting, it is not 
 material which of them be charged as principals in the first, degree as having given the 
 mortal blow ; for the mortal injury given by any one of those present, is, in contemplation 
 of law, the injury of each and every of them. State v. Mair, 1 Coxe's E. 453 ; Poster 
 551 ; State v. Fley and RocheUe, 2 Brevard, 338 ; R. v. Bfothwick, Doug. 207 ; 1 East, P., 
 C. 350. There are cases, however, where the provisions of a statute require the distinc- 
 tion to be observed ; thus an indictment which charges that the prisoner caused and pro- 
 cured a certain instrument to be forged, and willingly assisted in the forgery, &c, is to be 
 understood as charging that he caused it to be done in his presence, and that he aided, be- 
 ing present ; in other words, as charging him as principal in the second degree, and not as 
 accessory. See Rasnick's case, 2 Virg. Ca. 356 ; Huffman v. Com,, 6 Randolph, 685. Whar- 
 ton's Am. Cr. Law. p. 33. 
 
 If the actual perpetrator of a murder should escape by flight, or die, those present abet- 
 ting the commission of the crime, may be indicted as principals ; and though the indictment 
 should state the mortal injury was committed by him who is absent, or dead, yet if it be sub- 
 stantially alleged that those who were indicted were present at the perpetration of the crime, 
 and did kill and murder the deceased by the mortal injury so done by the actual perpetra- 
 tor, it shall be sufficient. State v. Fley and RocheUe, 2 Rice's S. C. Digests, 104 ; 2 Brevard, 
 338. By the ancient law, principals in the second degree could not be tried until the prin- 
 cipal had been convicted and outlawed. Foster, 347. Such however, is no longer the case, 
 and the party charged as principal in the second degree may be convicted, though the par- 
 ty charged as principal in the first degree is acquitted. R. v. Taylor, 1 Leach, 360 ; Rea- 
 son v. Offley, 2 Shaw, 570; 3 Mod. 121; R. v. WalUs, Salk. 334; R. v. Towle, R. & R. 314; 
 3 Price, 145 ; 2 Marsh. 465 ; Archbold's C. P. 6 ; Wharton's. Am. Cr. Law. p. 33. 
 
13 1 DEGREES OF OTJILT. 
 
 have been unnecessary from what has been above observed as to the 
 identity of the offence of the principal in the second degree with that 
 of principal in the first degree. [2] 
 
 But although a principal in the second degree may be convicted and 
 punished upon an indictment charging him as having committed the 
 offence, yet, as a grand jury, ignorant of this rule of law, may by mis- 
 take imagine in such a case that the evidence does not support the 
 indictment, and ignore the bill, it may be thought convenient in some 
 cases to indict the aider and abettor in felony, as such. 
 
 [*14] *The following may be the form of an 
 
 Indictment against a Principal in the second Degree. 
 
 Berks, \ The jurors for our lady the Queen upon their oath present, 
 
 to wit. ) that A. B., on the ■ ■ day of , in the year of our 
 
 Lord, 1851, \&c, stating the offence of the principal in the first degree: and 
 then, before the conclusion adding-] And the jurors aforesaid on their 
 oath aforesaid do further present, that C. D., on the day and year afore- 
 said, feloniously was present, aiding, abetting, and assisting the said A. 
 B., the felony aforesaid to do and commit. Against [the form of the 
 statute in such case made and 'provided,] and against the peace of our 
 lady the Queen, her crown and dignity. 
 
 [2] The distinction between principals in the first and second degree is, in this state, practi- 
 cally of little or no importance ; and much of the learning applicable to it has become com- 
 paratively useless, except so far as it may aid us in discriminating between principals and 
 accessories. For though it was once held that aiders and abettors were accessories at the 
 fact, and so could not be tried until the principal had been convicted, this notion has long 
 been exploded. And in England, as well as in this country, it is settled by an unbroken 
 current of authority, that those who are present aiding and abetting in a felony are not ac- 
 cessories, but principals in the second degree, and may be arraigned and tried before the 
 principal in the first degree has been dealt with. Indeed, they may be convicted though 
 the principal in the first degree has been acquitted. Arch. Cr. PI. 6. 1 Russ. on Cr. 21. 
 2 Hawk. P. 0. 312 ; Fost. 347 ; 1 Bay's Rep. 488 ; 1 Overton, 230. 
 
 Moreover, in respect to all mere misdeameanors, principals in the second degree might al- 
 ways be treated in the proceedings as principals in the first degree. The same rule also ap- 
 plies, in this state, to the whole range of felonies. For by the revised statutes, principals in 
 the second degree in the commission of a felony are visited with the same punishment as 
 principals in the first. 2 R. S. 698, § 6. And as a consequence of this provision, it follows 
 that principals in the second degree may be prosecuted as principals in the first. This is the 
 doctrine of the common law in regard to all cases where the punishment of principals in the 
 first and second degrees is the same ; (Arch. Cr. PI. 6 ; 2 Hawk. P. C. ch. 25, § 64 ; see 
 9 Coke's Rep. 67, b.) though aiders and abettors, or principals in the second degree, may be 
 proceeded against specially, as such, if the prosecutor chooses. Arch. Or. PI. 6. 
 
 Indictment.'] In all felonies in which the punishment of principals in the first and second 
 degrees is the same, the indictmant may charge all who are present and abet the act, as 
 principals in the first degree; (2 Hawk. P. C. ch. 23, § 76; 3 T. R. 105,) provided the 
 offence admits of participation. Fost. 342. But where the punishment is different, then 
 principals in the second degree must be indioted specially, as aiders and abettors. Matt. 
 Dig. Cr. L. 6. 
 
ACCESSORIES BEFORE THE FACT. 14 
 
 "Where a man was indicted for murder, the indictment stating the 
 wound to have been given on the 27th May, and the death to have 
 been on the 29th, and two others were indicted as principals in the 
 second degree, the indictment stating that they on the day and year 
 first aforesaid were present aiding, &c. : it was objected that this was 
 repugnant and bad, as the offence was not completed until the death, 
 on the 29th ; but the judges held it to be correct.(a) 
 
 (b) Accessories before the Fact. 
 
 Who and in what cases.'] An accessory before the fact to a felony, is 
 one who counsels, incites, moves, procures, hires or commands another 
 to commit it, but is not himself present aiding or abetting in the com- 
 mission of it.(6)[l] 
 
 And if the felony afterwards committed, be the same in substance 
 with that counselled or commanded, the party who counselled or com- 
 manded it will be deemed an accessory to it, although there be some 
 variance in time, place, manner, or other circumstance between the 
 advice or command and the execution of it : as where a person advises 
 a man to kill another in the day, and he kills him in the night, — or to 
 kill him in the fields, and he kills him in the town, — or to poison him, 
 and he stabs or shoots him, — in these cases he is as much an accessory, 
 as if his advice or command had been strictly pursued. (c) 
 
 But if the execution vary in substance from the advice or com- 
 mand, — as if a man advise another to kill A., and he kills B., — or to 
 burn the house of A., and he burns the house of B., — or to steal an 
 ox, and he steals a horse, — or to steal a particular horse, and he steals 
 
 (a) R. v. O'Brian et al, 2 Gar. & K. 115. v. TuclvweUet al., Car. & M. 215. 
 
 (6) 2 Hawk. c. 29, a. 16 ; R. v. Gordon, 1 (c) 2 Hawk. c. 29, s. 20. 
 
 Leach, 515; 1 East, P. C. 352 ; and see R 
 
 [1] An accessory before the fact is, according to Sir Matthew Hale, one who being absent 
 at the time of the commission of the offence doth yet procure, counsel, or command another 
 to commit it. Absence is indispensably necessary to constitute one an accessory ; for if he 
 be actually or constructively present when the felony is committed, he is an aider and 
 abettor, and not an accessory before the fact. 1 Hale's P. C. 615 ; 1 Leach, 515 ; 1 East's 
 P. C. 352 ; 4 Black. Com. 36, 7 ; Arch. Or. PI. 7. 
 
 In all felonies there may be accessories, except in crimes which the law deems sudden 
 and unpremeditated, as manslaughter, which therefore can have no accessories before the fact. 
 1 Hale, 615. And therefore, if A. be prosecuted for murder, and B. as accessory before the 
 fact, if A. is found guilty of manslaughter merely, B. must be acquitted. Id. 347, 450, 616 . 
 Arch. Cr. PI. 8. ' 
 
 An accessory cannot be guilty of a higher crime than his principal. 3 Inst. 139. 
 
 A new felony created by statute has all the incidents it would have at common law 
 Therefore, the procurers or abettors are principals or accessories upon the same circumstances 
 which would make them so at common law ; though the act be silent as to abettors or ac- 
 cessories. 1 Leach, 76. 
 
14 1 DEGREES OP GUILT. 
 
 another, — or to commit a felony of one kind, and he commits another 
 of quite a different nature, — in these and the like cases, the 
 [*15] party who advised or *commanded, &c, cannot be deemed an 
 accessory before the fact to the felony actually committed. (a) [1]' 
 There cannot however be an accessory before the fact to manslaugh- 
 ter; for that offence, in its nature, cannot be premeditated. (b) The 
 doctrine as to accessories, also, is confined entirely to felonies ; for in 
 treason and misdemeanors, those who, by counsel or incitement, &c, 
 would be accessories before the fact in felony, are deemed principals, 
 and prosecuted and punished accordingly. [2] Thus where a woman 
 
 (a) 2 Hawk. c. 29, s. 21. (6) 1 Hale, 616. 
 
 [1] Though it has been said, (1 Hale, 617 ; Plowd. 415 ; Hawk. b. 2, e. 29, s. 18 ; Com. 
 Dig. Justices, tit. 1,) that if A command B. to poison C, and B. in mistake poison D., that 
 A. is not answerable, this seems a position hardly reconcilable to the reason of the case, nor 
 borne out by the authority cited to support it ; for the true criteria to determine whether the 
 instigator of a felony is guilty, as accessory, to a felony somewhat different, are, that if the 
 principal committed the crime in consequence of the flagitious advice— and if the event, in 
 the ordinary course of things, was the natural consequence of the acts suggested, A. is un- 
 questionably guilty, but if the agent, from the mere wickedness of his own mind, intention- 
 ally commits a different offence, A. will not be implicated in the guilt of the principal. Fost. . 
 312 ; Com. Dig. Justices, tit. 1 ; 1 East Bep. 106. If the crime solicited to be committed be 
 not perpetrated, then the adviser can only be indicted for a misdemeanor. 2 East Bep. 5 ; 
 and see Buss. & Ey/C. C. 106, 107, notes. 
 
 At all events, it is clear that the accessory is liable for all that ensues upon the execution 
 of his unlawful command or advice ; as if A. command B. to beat C, and he beat him so that 
 he dies, A. is accessory to the murder. 4 Black. Com. 31 ; 1 Hale, 611 ; Arch. Cr. PI. 1. 
 Or if A command B. to burn the house of G, and in doing so, the house of D. is also burnt, 
 A. is accessory to the burning of D.'s house. Plowd. 415; Arch. Cr. P. 1. So if the offence 
 commanded be committed, though by different means from those prescribed by the command ; 
 for instance, if A. hire B. to poison C, and instead of poisoning he shoots him, A. is never- 
 theless liable as accessory. Post. 369 ; Arch. Cr. PI. 1. 
 
 [2] State v. Borden, 1 Dev. 518 ; State v. WestfieU, 1 Bailey, 132 ; Ourlin v. State, 4 Terg. 
 143 ; Commonwealth v. Burns, 4 J. J. Marsh. 182 ; V. S. v. Mills, 1 Peters, 138. See also, 
 Commonwealth v. Macomber, 3 Mass. 254; Commonwealth v. Gillespie, 7 Serg. & Rawle, 463 ; 
 U. S. v. Morrow, 4 Wash. 0. C. 733 ; Whitaker v. English, 1 Bay, 1 5 ; Ohanet v. Parker, 1 Russ. 
 Const. Ct. 333. 
 
 Whatever constitutes one an accessory in a capital offence, renders him liable as principal 
 in a misdemeanor. State v. Westfield, 1 Bailey, 132. In misdemeanors, there are no acces- 
 sories, all concerned are principals. Commonwealth v. MAntee, 8 Dana, 28 ; Caldwell v. Com- 
 monwealth, 7 Dana, 229. 
 
 One who incites others to commit an assault and battery is guilty, and may be punished 
 as a principal, if the offence be actually committed, although ho did not otherwise participate 
 In it. 1 Brevard, 385. 
 
 It has been held in this country, that a person who advises, persuades and procures an- 
 other to commit suicide, might be indicted as accessory before the fact, to the self-murder v 
 15 Mass. Bep. 38 ; Whart. Pree. 36. It has been ruled, however, in England, and it seems 
 to be the late doctrine, that at common law there can be no accessories to suicide, because 
 the principal cannot bo tried. But a party who is present aiding in the commission of a sui-' 
 cide, is a principal in the offence, and may be indicted for the murder of the deceased. 8 0. 
 & P. 418 ; Whart. Pree. 66. 
 
ACCESSORIES BEFORE TEE FACT. 15 
 
 advised and encouraged a man to set fire to a malthouse, and he at- 
 tempted to do so, but she was not present at the time, it was holden 
 that both of them might be jointly indicted as principals for the at- 
 tempt, (a) 
 
 It is not necessary, in order to constitute the offence of accessory, 
 that there should be any direct communication between him and the 
 principal ; the procurement may be through the intervention of an 
 agent.(6) And if managed through an agent, it is not necessary that 
 the principal should be named by the accessory ; if the latter desire the 
 agent to procure some person to commit the offence, without naming 
 him, and the agent accordingly procure a person, wholly unknown to 
 the accessory, to commit it, it will be sufficient to constitute the offence 
 of accessory before the fact.(c) 
 
 If the principal felon be unknown, the indictment of the the acces- 
 sory may state it accordingly ; and if it afterwards turn out that he is 
 known, although this formerly would be a fatal variance,^ yet now it 
 seems the court may order the indictment to be amended according to 
 the fact.(e)[3] 
 
 When, and how tried and punished^] Formerly accessories, before 
 the fact could only be tried with the principal or after the principal 
 was convicted ; and they were punishable in various ways by several 
 statutes.^) [4] But now, by stat. 7 G. 4, c. 64. s. 9, if any person shall 
 
 (a) R. v. Clayton et al, 1 Car. & K. 128. (d) R v. Walker] 3 Camp. 264. 
 
 (6) R. v. Cooper, 5 Car. & P. 534. (e) See 14 & 15 Vict. c. 100, s. 1. 
 
 (c) Id. (g) See 2 Hawk. c. 29. 
 
 [3] With regard to the degree of incitement put in requisition by the accessory, in procur- 
 ing the offence to be committed, no rule is laid down in the cases. That it was sufficient to 
 effect the evil purpose, is proved by the result. On principle, it seems that any degree of 
 incitement, with the actual intent to procure the consummation of the illegal object, is suffi- 
 cient to constitute the guilt of the accessory. Hence it is unnecessary to show that the 
 crime was effected in consequence of such incitement; and it would be no defence to show 
 that the offence would have been committed without any incitement. Roscoe's Or. Ev. 168 ; 
 2 Stark. Ev. 8. 
 
 In New York, on the trial of an indictment under the statute, for an attempt to commit 
 arson, it was shown that the prisoner solicited one K. to set fire to a barn, and gave him 
 materials for the purpose : it was held sufficient to warrant a conviction, though the prisoner 
 did not mean to be present at the commission of the offence, and K. never intended to com- 
 mit it. People v. Bush, 1 Hill's N. T. Rep. 133. 
 
 [4] It wonld seem that in New York the common law rule still prevails. See Barb. Cr. Law 
 page 291, 2d ed.; 3 Mass. Rep. 126 ; 16 Mass. Rep. 423. The New York revise dstatutes 
 however provide that in an indictment against a person for receiving or buying stolen goods, 
 it shall not be necessary to aver, nor on the trial to prove that the principal who stole the 
 goods has been convicted. 2 New York, Rev. Stat. 480, sec. 12. 
 
 In Massachusetts where there has been two principals, one of whom has been convicted, 
 the other of whom is dead, the accessory must answer notwithstanding the non-conviction 
 of the second. Com. v. Knapp, 10 Pick. Rep. ill. 
 
15—1 DEGREES OE GUILT. 
 
 counsel, procure, or command any other person to commit any felony, 
 whether the same be a felony at common law or by statute, the person 
 so counselling, procuring, or commanding shall be deemed guilty of felo- 
 ny, and may be indicted and convicted, either as an accessory before 
 the fact to the principal felony, together with the principal felon or af- 
 ter his conviction, or may be indicted and convicted of a substantive 
 felony, whether the principal felon shall or shall not have been previ- 
 ously convicted, or shall or shall not be amenable to justice, and may 
 be punished in the same manner as any accessory before the fact to 
 the same felony, if convicted as an accessory may be punished ; and 
 the offence of the person so counselling, procuring, or commanding, 
 
 howsoever indicted, may be inquired of, tried, determined, and 
 [*16] punished, by any *court which shall have jurisdiction to try the 
 
 principal felon, in the same manner as if such offence had been 
 committed at the same place as the principal felony, although such of- 
 fence may have been committed on the high seas or at any place on 
 land, whether within his majesty's dominions or without ; and that in 
 case the principal felony shall have been committed within the body 
 of any county, and the offence of counselling, procuring, or command- 
 ing shall have been committed within the body of any other county, 
 the last-mentioned offence may be inquired of, tried, determined, and 
 punished in either of such counties. [1] 
 
 See Commonwealth v. Andrews, 3 Mass. R. 126 ; State v. Graff, 1 Murphey R. 270 ; 
 Commonwealth v. Phillips, 16 Mass. R. 427. See the law of the several states on this head 
 in 1 Russell, 21, n. (A;) 2 Rev. Stat, of ISTew York, 127. See Stoops v. Commonwealth, 1 
 Serg. & Rawle, 491 ; Hartnj v. State, 3 Black. 386; Commonwealth v. Frye, 1 Virg. Cas. 18 ; 
 Butler v. State, 3 M'Cord, 384; State v. Goode, 1 Hawkes, 463; Commonwealth v. William- 
 son, 2 Virg. Cas. 211; Commonvjealth v. Sheriff, 16 Serg. & Rawle. 304; State v. Crank, 2 
 Bailey, 66 ; State v Sims, 2 Bailey, 29. 
 
 In Massachusetts, accessories in cases of felony either before or after the fact, may now be 
 indicted, convicted and punished, whether the principal felon shall or shall not have been 
 convicted or shall or shall not be amenable to justice. Rev. Stat. ch. 133, § 2, 5. So in 
 Maine. See acts of the session of the legislature of Maine, Jan. 1831, ch. 504. 
 
 In North Carolina, the accessory is not liable to be tried while the principal is amenable 
 to the laws of the state, and is still unconvicted. State v. Graff, 1 Murphey's R. 270 ; see 
 State v. Goode, 1 Hawks, 463 ; Harty v. State, 3 Blackford's la. R. 386. 
 
 In Virginia, where the principal and accessory were charged in the same indictment for 
 murder, and the principal was first tried, and convicted of murder in the second degree, and 
 before judgment was pronounced against him, the accessory was tried, and the jury found a 
 verdict against him, subject to the opinion of the court, whether the accessory could be tried 
 before the principal had judgment, he being in custody, convicted as principal, it was decided 
 that, under the statute, conviction alone, without attainder, is sufficient. Com, v. William- 
 son, 2 Virg. Cas. 211. 
 
 [1] In Massachusetts the accessory may be tried for a substantive felony, whether the 
 principal be convicted or not; and the same provision exists in several of the states. So far 
 as receiving stolen goods, knowing them to be stolen, is concerned, the modification is almost 
 universal. In general, however, in other respects, the common law remains unchanged. 
 
 It seems that in Massachusetts the statute, like that of 7 Geo. 4, c. 64, s. 9, of which it is 
 a transcript, only applies where the accessory might at common law have been indicted with 
 
ACCESSORIES BEFORE THE FACT. 16 
 
 In order to amend the law still further, by atat. 11 & 12 Vict. c. 46, 
 s. 1, after reciting that it was expedient that an accessory before the 
 fact to felony should be liable to be indicted, tried convicted, and pun- 
 ished, in all respects like the principal, as was then the case in treason 
 and in all misdemeanors, — it was enacted, that " if any person shall 
 become an accessory before the fact to any felony, whether the same 
 be a felony at common law or by virtue of any statute or statutes made 
 or to be made, such person may be indicted, tried, convicted, and pun- 
 ished in all respects as if he were a principal felon." [1] 
 
 In all cases of felony, therefore the accessory is punishable in the 
 same manner precisely as the principal felon ; and he may now be in- 
 dicted either as a principal, that is, he may be charged in the indict- 
 ment with having actually committed the offence as principal in the 
 first degree, or he may be indicted as accessory as for a substantive 
 felony, or he may be indicted as accessory with the principal, at the 
 option of the prosecutor. The following may be a form of an 
 
 Indictment of. an Accessory before the Fact, with, the Principal. 
 
 Yorkshire, } The jurors for our lady the Queen upon their oath 
 
 to wit. [ present, that A. B., on the day of-. , in the 
 
 year of our Lord , \&c, stating the offence against the principal; and 
 
 then, before the conclusion, stating the offence of the accessory thus /] And 
 the jurors aforesaid upon their oath aforesaid do further present that 
 C. D., before the committing of the said felony by the said A. B. as 
 aforesaid, to wit, on the day and year aforesaid,-feloniously did counsel, 
 procure, and command the said A. B. the said felony in manner and 
 form aforsaid to. commit: [against the form of the statute in such case 
 made and provided,] and against the peace of our lady the Queen, her 
 crown and dignity. [2] 
 
 or without the conviction of the principal, and therefore where a defendant was indicted as 
 accessary before the fact to the murder of S. IS., she having, by his procurement, killed her- 
 self, it was holden that the statute did not apply. Whart. Crim. Law. p. 35. 
 
 [1] The Criminal Code of Illinois declares that an accessory before the fact shall be 
 deemed and considered as principal, and punished accordingly. Boater v. The People, 3 
 Gilman,"368. 
 
 [2] In South Carolina, it has been held, that at common law it is not necessary in an in- 
 dictment against an accessory before the fact, in a felony, to set out the conviction or exe- 
 cution of the principal. State v. Sims, 2 Bail. Rep. 29. 
 
 Mr. Wharton very properly remarks (Cr. Law, p. 36.) that the indictment should show the 
 offence to have been committed with as much particularity as is necessary in an indictment 
 against the principal and he cites the case of Com. v. Dudley, 6 Leigh's Virg. Rep. 614, in 
 which the indictment was as follows : — " Amherst county, superior court of law and chan- 
 cery, to wit: The grand jurors empanneled and sworn at September term 1834, upon their 
 oath present, that J. W. Dudley late of the county of Amherst, laborer, with force and arms, 
 in the county aforesaid, and within the jurisdiction of the said Superior Court, on the 1st 
 day of September, 1834, did, wilfully and knowingly, aid, abet and counsel^ a certain "W. M. 
 Davis, in unlawfully, maliciously, and wilfully, fighting a duel with pistols, with a certain 
 
16 1 DEGREES OF GUILT. 
 
 It is not necessary in this indictment to conclude " against the 
 [*17] form of the statute" unless the offenee of the principal *require 
 it. But in an indictment against an accessory alone, as for a 
 substantive felony, the conclusion ought to be so.[l] In other re- 
 spects the indictment against the accessory as for a substantive felony, 
 is the same in form as the above. 
 
 W. M. Lambert, then and there being. The probable consequence of such weapons might 
 be the death of the said Davis- or the said Lambert, and the jurors upon their oaths say, that 
 the said Dudley did, as aforesaid, aid, abet, and counsel the said Davis in fighting the said 
 duel which took place at the time, place and manner aforesaid, against the form of the sta- 
 tute in such case made and' provided, and against the peace and dignity of this common- 
 wealth." "Upshur, J. on demurrer said: " In an indictment for aiding and assisting in fight- 
 ing a duel, it is indispensable to charge that a duel was fought. Perhaps it was the inten- 
 tion of the attorney to do so in this instance, and the language of the indictment may 
 possibly be susceptible.of a different construction ; and therefore is wanting in that directness 
 and precision of averment which are necessary in an indictment. This defect, being, in our 
 opinion fatal, we have not thought it necessary to turn our attention to other objections." 
 
 [1] An indictment for an offence created by statute, concludes, " Against the form of the 
 statute in such ease made and provided, and against the peace of the people," &c. 
 
 Where a statute either creates the offence altogether, or makes an offence at common law 
 an offenee of a higher nature, (as where it makes a misdemeanor a felony,) "an indictment for 
 the offence must conclude "against the form of the statute." 13 Wend. 159; 2 Hale, 192; 
 2 Hawk. ch. 25, sec. 116 ; 1 Salk. 310 ; 1 Mass. Eep. 9 ; 11 id. 279 ; 2 id. 116 ; 10 Pick. 31 ; 
 Hardin, 95. , Or, at least, it must refer clearly and explicitly to the. statute as the foundation 
 of the prosecution.' 1 Mass..Rep. 9; 2 id. 116;- 11 id. 219. 
 
 But where a statute does not create an offence, but alters the punishment for an offence 
 at common law, it is not necessary that the indictment should conclude, conira formv/m sta- 
 tuM. Williams v. The Queen, (in error,) 10 Jur. 155; '8. C. 14 Law J. N. S. 164. If the 
 statute be merely declaratory of an offence at common law, without adding to or altering 
 the punishment, &c, an indictment for the offence may conclude either "against the form of 
 the statute," or as at common law. 2 Hale, 189; 13 "Wend. 159; 1 Black. 163. 
 
 But where a statute merely takes away a certain privilege or benefit from a person com- 
 mitting a common law offence under the particular circumstances, to which benefit or privi- 
 lege the defendant, but for the statute, would have been entitled at common law, an indict- 
 ment for the offenee, though it must charge it to have been committed under the circum- 
 stances mentioned in the statute,, should not conclude " against the form of the statute." Id. 
 190. 
 
 An indictment against A., for shooting at B., and against others as aiding, &c, was held 
 sufficient in a late case, without concluding "against the form of the statute," as to each of- 
 fence, but only at the conclusion of the count. 6 Car. & Payne, 341. 
 
 "Where one statute is relative to another, as where one creates the offence and the other 
 the penalty, and indictment for the offence must conclude "against the form of the statute." 
 2 Hale, 113 ; Cro. Jao. 142. But where the offence is prohibited by several independent 
 statutes, the indictment may either conclude "against the form of the statutes," or "stat- 
 ute," in the singular. 2 Hawk. eh. 25, sec 111; 6 Oowen, 512; 2 Sum. Rep. 19.. And 
 although two statutes are set forth in an indictment, it is not necessary to allege the offence 
 to have been committed " against the form of the statutes," where it is wholly created by one 
 of the statutes, and the second merely makes some alterations in the first, without affecting 
 the offence Kane v. The People, 8 "Wend. 203. 
 
 If the statute creating the offence be temporary, and he continued or made perpetual by 
 another statute, an indictment for the offence may, conclude against the form of the " stak 
 ute." If one statute imposes a pecuniary penalty for an offence, and a subsequent statute 
 
ACCESSORIES AFTER THE FACT. 17. 
 
 The indictment against the accessory as a principal, is of course in the 
 same form as an ordinary indictment against the person who actually 
 committed the principal felony. There is an inconvenience, however, 
 •in indicting in the latter form alone, as the grand jury, perhaps, not 
 knowing the law upon the subject, may ignore the bill. In order to 
 avoid this, it may be advisable to add a count as accessory, in the above 
 form. 
 
 And lastly, by stat. 14 & 15 Vict. c. 100, s. 15, reciting that it often 
 happens that the principal in a felony is not in custody or amenable to 
 justice, although several accessories to such felony, or receivers at 
 different times of stolen property the subject of such felony, may be in 
 custody and amenable to justice : — for the prevention of several trials, 
 it*is enacted that any number of such accessories or receivers may be 
 charged with substantive felonies in the same indictment, notwithstand- 
 ing the principal felon shall not be included in the same indictment, or 
 shall not be in custody or amenable to justice. 
 
 It is not stated whether by the word accessories here is meant acces- 
 sories before the fact, or after the fact, or both ; probably as the word 
 is coupled with "receivers," it will be understood to mean accessories 
 after the fact. It does not appear also whether it was intended that the 
 section should extend to accessories in all felonies, or in larceny only- 
 probably the latter. It is also not stated whether there may be several 
 counts against each accessory or receiver ; probably it will be holden 
 that there may. 
 
 (c) Accessories after the Fact. 
 
 Who, and in what cases.] After a felony has been comitted, if any 
 person receive, harbor, or assist the principal felon, knowing him to 
 have committed the felony * he is deemed an accessory after the fact ; 
 in law, any assistance whatever given to him, in order to hinder his 
 
 makes the offence a felony, an indictment for the felony should conclude "against the form 
 of the statute." Russ. & Ry. 0. C. 425 ; 8 Greenl.113. But an indictment for a common law 
 felony, committed abroad and made triable here by statute, need not conclude "against the 
 form of the statute." Russ. & Ry. C. 0. 294 
 
 If an indictment conclude '" against the form of the statute," when it should conclude as 
 at common law, the mistake is not material, and the words contra form. stat. may be rejected 
 as surplusage. 5 T. R. 162 ; Sayer, 225 ; 1 Vent. 103 ; 2 Dana, ill ; 3 Har. & John. 154. 
 
 In an indictment on a statute, besides the conclusion " against the form of the statute," 
 the words "against the peace of the people," are absolutely essential; (2 Hale, 188,) for the 
 former conclusion will not supply the omission of the latter. Russ. & Ry. C. 0. 176. 
 
 Formerly, omitting to conclude "against the form of the statute," when it was essential, 
 was error, and might be taken advantage of by demurrer, motion in arrest of judgment, or 
 writ of error. Matt. Dig. Cr. L. 219. Defects of this kind, however, are now cured by the 
 statute, notwithstanding the offence may have been created, or the punishment declared, by 
 a statute. 2 R. S. 728, sec. 52, sub. 3. 
 
Yl i DEGREES OF GUILT. 
 
 being apprehended or tried, or to prevent his suffering the punishment 
 to which he is liable, — rescuing him, allowing him to escape, opposing 
 his apprehension, or the like, — the party knowing at the time that he 
 had committed a felony, makes such party guilty as accessory after the 
 fact to the felony. (a) [2] 
 
 Upon the trial of a man as principal in the second decree to a larceny, 
 it appeared that a person, having stolen goods from a warehouse, car- 
 ried them along the street for about thirty yards, and then fetched the 
 prisoner, who was apprised of the robbery, but not at all acting in it, and 
 
 he assisted in carrying away the property : it was holden that 
 [*18] he was not a principal, but an accessory *after the fact.(J) But 
 
 receiving stolen goods, knowing them to have been stolen, did 
 not amount to the offence of accessory after the fact to the principal 
 
 (a) 2 Hawk. c. 29, ss. 26, 21. (o) R. v. King, R. & Ry. 332. 
 
 [2] But merely suffering the principal to escape will not make the party an accessory after 
 the fact; for it amounts at most but to a mere omission. 9 H. 4, 1; 1 Hale, 619. So, if a 
 person supply a felon with victuals or other necessaries for his sustenance, (1 Hale, 620 ;) or 
 relieve and maintain him if he is bailed out of prison; (Id. ;) or if a physician or surgeon profes- 
 sionally attend a felon sick or wounded, although he knew him to be a felon, (1 Hale, 332;) 
 or if a person speak or write in order to obtain a felon's pardon or deliverance, (26 Ass. 47_;) 
 or advise his friends to write to the witnesses not to appear against him at his trial, and they 
 write accordingly, (3 Inst. 139; 1 Hale, 620;) or even if he himself agree, for money, not to 
 give evidence against the felon, (Moor, 8 ;) or know of the felony, and do not discover it, (1 
 Hale, 371, 618;) none of these acts would be sufficient tomake the party an accessory after 
 the fact. He must be proved to have done some act to assist the felon personally. See 
 Reg. v. Chappie, 9 C. & P. 355. But if he employ another person to do so, he will be equally 
 guilty as if he harbored or relieved him himself. R. v. Jarvis, 2 M. & Rob. 40. 
 
 To constitute this offence, it is necessary that the accessory have notice,- direct or implied, 
 at the time he assists or comforts the felon, that he had committed a felony. 2 Hawk. c. 29, 
 s. 32. It is also necessary that the felony be complete at the time the assistance is given; 
 for, if one wound another mortally, and, after the wound given, but before death ensues, a 
 person assist or receive the delinquent, this does not make him accessory to the homicide; 
 for until death ensues, no felony is committed. 2 Hawk. c. 29, s. 35 ; 4 Bl. Com. 38. 
 
 The New York Revised Statutes contain the following provision on this subject : — 
 
 " Every person who shall be convicted of having concealed any offender, after the commis- 
 sion of any felony, or of having given such offender any other aid, knowing that he has com- 
 mitted a felony; with intent and in order that he may avoid, or escape from arrest or trial, 
 conviction or punishment, and no others, shall be deemed an accessory after the fact, and 
 upon conviction, shall be punished by imprisonment in » state prison, not exceeding five 
 years, or in a county jail not exceeding one year, or by fine not exceeding $500, or by both 
 such fine and imprisonment." 
 
 The above provision, of course, supersedes the common law in all cases where the latter 
 conflicts with, or varies from the former. Such instances, however, will, it is apprehended, 
 be found somewhat rare. 
 
 There may be an accessory to a person who was accessory before the act : as if A. advise 
 and procure B. to murder 0. By this A. is accessory before the fact ; and though but acces- 
 sory, yet if D. receives and conceals him from justice, D. thereby becomes an accessory to a 
 person who was accessory. But there cannot be an accessory to a person who was accessory 
 after the fact. 3 P. Wins. 41 5. 
 
ACCESSORIES AFTER THE PACT. 18 
 
 felon, until made so by stat. 3 & 4 "W". & M. c. 9, and 5 Anne, c. 31, s. 
 5.(a) And a wife cannot be convicted as accessory after the fact, for 
 any receipt of or assistance to her husband.(&) But the exemption does 
 not extend further : a husband may be indicted- as accessory after the 
 fact to his wife, a brother to a brother, a master to a servant, a servant 
 to a master.(c) And the doctrine extends to every felony, and to man- 
 slaughter as well as to others.(d) But it must be considered as having 
 reference to felony only ; the same receipt which in felony will make 
 a man accessory after the fact, will in treason make the party a princi- 
 pal traitor,(e) but in misdemeanors is not punishable.^) 
 
 When and how tried.~\ Formerly an accessory after the fact could 
 only be tried with the principal, or after the principal was convicted ; 
 and if tried after the conviction of the principal, he could only be tried 
 in the county where the offence of accessory was committed. [2] 
 
 But by stat. 11 & 12 Vict. c. 46, s. 2, reciting this, and that it was 
 sometimes productive of a failure of justice, it is enacted that if any 
 person shall become an accessory after the fact to any felony, whether 
 the same be a felony at common law or by statute, he may be indicted 
 and convicted either as an accessory after the fact to the principal felony 
 together with the principal felon, or after the conviction of the princi- 
 pal- felon, — or may be indicted and convicted of a substantive felony, 
 whether the principal felon shall or shall not have been previously con- 
 fa) 2 Hawkrc. 29, 3. 3. (d) B. v. Greenacre, 8 Car. & P. 35. 
 (6) Id. s. 34 ; see B. v. Mary Good,- 1 Car. (e) 1 Hale, 238. 
 & K. 185. (g) 1 Hale, 613. 
 (c)- 2 Hawk. 0.29, a. 34. 
 
 [1] At common law these distinctions as to principals and accessories had an important 
 hearing in regard to the indicting and trial of an- offender. As formerly no man could be 
 tried as accessory till after the principal was convicted, or at least he'must have been tried 
 at the same time with him : and questions arose as to the place of trial, where the principal 
 offence was committed in a different county from that where the accessory act was done. 
 But the law on this 'subject has been much modified, or particular provisions have been 
 enacted, by statute in the several states, and by the laws of the United States in cases 
 under their jurisdiction. 
 
 And indeed, it may well be asked, why should not these distinctions be done away with 1 
 And why s'hould not the systems of criminal law contain a general provision for prosecuting 
 and punishing all who aid, abet, procure, or participate in the commission of an offence, in 
 the same manner, as those who actually perpetfato it, and without reference to the trial or 
 conviction of the latter, or to their being found or not? 
 
 A magistrate, on the examination of a prisoner-or accused person before trial, who ap- 
 pears to be guilty as accessory or concerned in the commission of a crime, ought to proceed 
 against him as in other cases, setting out the offence substantially and distinctly, and taking 
 the necessary measures for compelling liis appearance to answer at the proper court; being 
 careful that a due investigation of such a case is not prevented by too nice doubts as to the 
 degree of guilt ; as that, with other particulars, should be left for the subsequent trial in 
 qourt. 
 
Ig I DEGREES OF GUILT. 
 
 victed, or shall or shall not be amenable to justice, and may thereupon 
 be punished in like manner as any accessory after the fact to the same 
 felony, if convicted as an accessory, may be punished ; and the offence 
 of such person, howsoever indicted, may be inquired of, tried, deter- 
 mined, and punished, by any court which shall have jurisdiction to try 
 the principal felon, in the same manner as if the act by reason of which 
 such person shall have become an accessory had been committed at the 
 same place as the principal felony. 
 
 The' following may be the form of an 
 
 Indictment against an Accessory after the Fact, zoith the Principal, or for a 
 
 substantive Felony. 
 
 Hants, \ The jurors for our lady the Queen upon their oath pre- 
 
 to wit. J sent, that A. B., on the day of , in the year of our 
 
 Lord , \&c, stating the offence against the principal ; and im- 
 
 [*19] mediately before the conclusion * add :] And the jurors aforesaid 
 upon their oath aforesaid do further present, that C. D., after 
 the said A. B. had done and committed the said felony, to wit, on the 
 day and year aforesaid, well knowing that the said A. B. had done 
 and committed the same, him the said A. B. did feloniously receive, 
 harbor, and maintain : against the form of the statute in such case 
 made and provided, and against the peace of our lady the Queen, her 
 crown and dignity. 
 
 This form answers, as well where the accessory is tried alone for a 
 substantitive felony, according to stat. 11 & 12 Vict. c. 46, s. 2, above- 
 mentioned, as where he is tried with the principal, (a) In either case, 
 the prosecutor must first prove the offence of the principal, as if he 
 alone were on his trial ; and then he must prove the receipt or assist- 
 ance of the accessory, and that he knew at the time that the principal 
 had committed the felony. On the other hand, the accessory may not 
 only controvert his own guilt, but that of his principal also ; and if 
 he succeed in either, he must be acquitted. [1] 
 
 (a) R. v. Hcmsitt, 13 Shaw's J. P. 556. 
 
 [1] Where the principal and accessory are joined in an indictment, and tried separately, 
 the record of the principal's conviction is, prima facie, evidence of his guilt, upon the trial 
 of the accessory; and as the hurden of proof is on the accessory, he must show clearly that 
 the principal ought not to have been convicted. Com. v. Knapp, 10 Pick. 484; State y. 
 Ohittem, 2 Devereux, 49. But the accessory, in such case, is not restricted to proof of facts 
 that were not shown on the former trial, and which are incompatible with the guilt of the 
 principal. Com. v. Knapp, 10 Pick. 484. The record of the conviction of a slave before a 
 court of magistrates and freeholders as principal in a felony, (i. e. murder,) may be given in 
 evidence on the trial of an indictment against a free white man as accessory before the fact. 
 State v. Sims, 2 Bail. S. C. Rep. 29 ; State v. Crank, Ibid 66. In New York, a copy of the 
 
INCITING TO THE COMMISSION OF OFFENCES. 19 
 
 As to the joinder of several accessories, see stat. 14 & 15 Vict. c. 100, 
 s. 15, ante, p. 17. 
 
 Punishment.'] There is no uniform punishment for the offence of 
 accessory after the fact. The offence in all cases is felony ; but it is 
 punishable in various "ways, by the several statutes which assign the 
 punishment to the principal felony. In felonies within stat. 7 & 8 Gr. 
 4, c. 29 (the Larceny Act,) accessories after the fact are punishable 
 with imprisonment with or without hard labor, for any term not exceed- 
 ing two years, by sect. 61 ; and the same, in felonies within stat. 7 & 8 
 Gt. 4, c. 30 (Malicious Injuries,) by sect. 26 ; in felonies within stat. 9 
 Gr. 4, c. 21 (Offences against the person,) by sect. 31 ; in felonies with- 
 in stat. 1 W. 4, c. 66 (Forgery,) by sect. 25 ; in felonies within stat. 2 W. 
 4, c. 32 (Coin,) by sect. 18; and in felonies within stat. 1 Vict. c. 36 
 (Post Office,) by sect. 35. 
 
 (b) Persons who solicit and incite others to commit Offences, which are not 
 afterwards committed. 
 
 We have seen that the offence of accessory before the fact is, where 
 a person incites another to commit a felony, which the other afterwards 
 commits. [2] The offence of the accessory in this case is a felony. 
 
 But if the party thus incited do not afterwards commit felony, or if 
 a man solicit or incite another to commit an indictable misdemeanor 
 which the other does not afterwards commit, the offence of the inciter 
 is but a common law misdemeanor, punishable as sueh with imprison- 
 ment or fine, or both. (a) [3] 
 
 (a) B. v. Higgms, 2 East, 5. 
 
 original minutes of the court, in which the original was convicted, if entered according to 
 the direction of the statute, is proper evidence against an accessory before the fact ; it ap- 
 pearing that no record of judgment of such conviction has been signed and filed ; and it is 
 reasonable to suppose, that the original minutes are equally sufficient. People v. Gray, 25 
 "Wendell, 465. But the rough minutes or original entries, not inspected or approved by the 
 court, according to the statutes, are not evidence. Ibid.; Whart. Or. Law, p. 38. 
 
 [2] One who incites others to commit an assault and battery, is guilty, and may be. pun- 
 ished as a principal, if the offence be actually committed, although he did not otherwise 
 participate in it. 1 Brevard Rep. 39 1 ?. 
 
 [3] Thus, it is an indictable offence to advise A., against whom a sheriff has » precept, 
 and whom he is about to arrest, to draw a line on the ground, and forbid the officer to pass 
 it, asserting at the time, that if the sheriff passed the ground and A. killed him, the law 
 was on A's side. State v. GadiweU, 2 Tyler, 212. 
 
 In an indictment under the New York statute for soliciting the commission of an offence, 
 the particular manner in which the solicitation was made, need not be set out. People v. 
 Bush, 4 Hill, 133. 
 
20 DEGREES OE GUILT. 
 
 [*20] *The following may be the form of an 
 
 Indictment for soliciting a Person to commit an indictable Offence. 
 
 Bedfordshire, \ The jurors for our lady the Queen, upon their oath 
 
 to wit: j present, that A. B., on the day of , in the year 
 
 of our Lord , unlawfully did solicit and incite one C. D. to [here 
 
 state the offence :] against the peace of our lady the Queen, her crown 
 and dignity. 
 
 Also, by stat. 1 Vict. c. 36, which defines and punishes several felo- 
 nies and misdemeanors in respect of the post office, such as stealing or 
 embezzling letters, stealing from letters, opening or delaying letters, 
 &c, it is enacted by sect. 36, that every person who shall solicit or 
 endeavor to procure any other person to commit a felony or misde- 
 demeanor punishable by the post office act, shall be deemed guilty of 
 a misdemeanor, and be adjudged to be imprisoned for a term not ex- 
 ceeding two years. [1] 
 
 (e) Persons who attempt to commit Crimes, but do not complete them. 
 
 All attempts to commit a ' felony, not specially provided for and 
 made punishable by some particular statute, are punishable as misde- 
 meanors at common law, whether committed with force or otherwise.(a) 
 And in like manner, every attempt to commit a misdemeanor, either 
 at common law, or created by statute, is itself a misdemeanor at com- 
 mon law.(6) 
 
 The punishment at common law is by fine or imprisonment, or both. 
 But the punishment by statute, for some cases of this description, is 
 more severe ; [2] an assault with intent to commit a felony, generally, 
 
 (a) See R. v. Biggins, 2 East, 5. son, J. ; R v. Roderick, 1 Car. & P. 195 ; R. 
 
 (i) B. v. , R. & Ry, 107, per Le Blanc, v. Ball, Car. & M. 249. 
 
 J. ; R. v. Butler, 6 Oar. & P. 368, per Patta- 
 
 [1] See post, 578, et seq. 
 
 [2] Massachusetts^ — Every person who shall attempt to commit an offence prohibited 
 by law, and in such attempt shall do any act towards the commission of such offence, but 
 shall fail in the perpetration, or shall be intercepted or prevented in the execution of the 
 same, where no express provision is made by law for the punishment of such attempts, shall 
 be punished as follows : - 
 
 First, if the offence, attempted to be committed, is such as is punishable with death, the 
 person convicted of such attempt, shall be punished by imprisonment in the state prison, 
 not more than ten years : 
 
 Secondly, if the offence, so attempted to be committed, is punishable by imprisonment in 
 the state prison for life, or for five years or more, the person, convicted of such attempt, 
 shall be punished by imprisonment in the state prison, not more than three years, or in the 
 county jail, not more than one year : 
 
 Thirdly, if the offence, so attempted to be committed, is punishable by imprisonment in 
 the state prison for a term less than Ave years, or by imprisonment in the county jail, or by 
 
PERSONS "WHO ATTEMPT TO COMMIT CRIMES. 20 1 
 
 is punishable with, imprisonment, with or without hard labor, for not 
 more than two years ;(a) an assault with intent to rob, is made a felony, 
 and punishable with imprisonment with or without hard labor, for not 
 more than three years ;{b) attempts to murder, by poison, by stabbing, 
 cutting or wounding, by shooting or attempting to shoot, or by attempts 
 to drown, suffocate, or strangle,' — are all made felonies, and punishable 
 with great severity.(c) These several offences we shall notice fully in 
 a subsequent part of the work, when we come to give the forms of in- 
 dictments, and the evidence necessary to support them. 
 
 (a) 9 G. 4, c. 31, s. 25. (c) 1 Vict. c. 85. 
 
 (6) 1 Viet. u. 87, s. 6. 
 
 fine, the offender, convicted of such attempt, shall be punished by imprisonment in the 
 county jail, not more than one year, or by fine not exceeding three hundred dollars; hut in 
 no case shall the punishment, by imprisonment, exceed one half of the greatest punishment 
 which might have been inflicted, if the offence so attempted had been committed. Rev. 
 Stat. ch. 133, sect. 12. 
 
 New York. — Every person who shall attempt to commit an offence prohibited by law, 
 and in such attempt shall do any act towards the commission of such offence, but shall 
 fail in the perpetration thereof, or shall be prevented or intercepted in executing, the same ; 
 upon conviction thereof, shall, in cases where no provision is made by law for the punish- 
 ishment of such attempt, be punished as follows : 
 
 1. If the offence attempted to be committed, he such as is punishable by the death of tho 
 offender, the person convicted of such attempt, shall be punished by imprisonment in a state 
 prison not exceeding ten years : 
 
 2. If the offence so attempted, be punishable by imprisonment in a state prison for four 
 years or more, or by imprisonment in a county jail, the person convicted of such attempt, 
 shall be punished by imprisonment in a state prison, or in a county jail, as the case may be, 
 for a term not exceeding one half the longest term of imprisonment prescribed upon the 
 conviction for the offence so attempted : 
 
 3. If the offence so attempted, be punishable by imprisonment in a state prison for any 
 term less than four years, the person convicted of such attempt, shall be sentenced to im- 
 prisonment in a county jail for not more than one year : 
 
 4. If the offence so attempted, be punishable by a fine, the offender convicted of such 
 attempt, shall be liable to a fine not exceeding one half of the largest amount which may 
 be imposed, upon a conviction for the offence so attempted : 
 
 5. If the offence so attempted, be punishable by imprisonment and by a fine, the offender 
 convicted of such attempt, may be punished by both imprisonment and fine, not exceeding 
 one half of the longest time of imprisonment and one half of the greatest fine which may 
 be imposed, upon conviction for the offence so committed. 2 N. T. Rev. Stat. 698, sec. 3. 
 
 In an indictment under the abovo section of the statute, for attempting to commit an 
 offence, the particular manner in which the attempt was made need not be set out. Tlie 
 People v. Bush, 4 Hill, 133. It seems that merely soliciting one to commit a felony without 
 any other act being done, is sufficient to warrant a conviction, under the statute. Ibid. 
 
 No person can be convicted of an attempt to commit an offence when it shall appear that 
 the crime intended or the offence attempted was actually perpetrated. 2 R. S. 702, § 26. 
 Nor when it shall appear that he has been previously acquitted on a trial for the principal 
 offence. Ibid. § 28. But a person may be convicted of an attempt to commit an offence 
 upon an indictment for the commission of the crime itself. Ibid. § 27. 
 
[*21] CHAPTBE II. 
 
 APPREHENSION OF THE OFFENDER. 
 
 I propose to arrange the matter of this chapter under the following 
 heads : 
 
 Section I. Arrest without warrant, p. 21. 
 
 (a) In the Act of committing the Offence, p. 21. 
 
 (b) In case of Riots, p. 23. 
 
 (c) After offence committed, p. 25. 
 
 (d) In prevention of offences, p. 27. 
 
 (e) By Constable, p. 27. 
 (/) By Magistrates, p. 27. 
 (g) On hue and cry, p. 28. 
 (h) When and where, p. 28. 
 (i) How, p. 28. 
 
 Section II. Apprehension of the offender under a warrant, 
 p. 30. 
 
 (a) Warrant, in what cases and how, p. 30. 
 (6) Summons and Warrant, p. 30. 
 
 (c) Warrant, how and where executed, p. 33. 
 
 (d) Warrant for offences at sea or abroad, p. 35. 
 Section III. The examination and commitment or bail, p. 35. 
 
 1. In cases where the arrest is in the same county, &c, 
 where the offence was committed, p. 35. 
 
 (a) Taking the depositions, p. 35. 
 
 (b) Remand, p. 36. 
 
 (c) Summons of witness, p. 39. 
 
 (d) Defence, p. 42. 
 
 (e) Discharge and commitment, p. 44. 
 
 (/) Where committed for trial at the sessions, p. 45. 
 
 (g) Where committed for trial at the assizes, p. 45. 
 
 (h) Committal from county of a town for the assizes, 
 p. 46. 
 
 (t) The like from towns, &c, not being counties, p. 47. 
 
 (/) Binding by recognizance ; transmission of depo- 
 sitions, &c, p. 47. 
 
 (7c) Copy of depositions for defendant, 51. 
 
 2. Examination and committment where the arrest is in a 
 different county from that in which the offence was com- 
 mitted, p. 51. 
 
 (a) Warrant, if evidence prove the charge, p. 51. 
 
ACT OF COMMITTING THE OFFENCE. 21 — 1 
 
 (J) Warrant, if evidence do not prove the charge, p. 52. 
 
 (c) Costs of constable, p. 53. 
 
 (d) How, where the arrest is under a baclced warrant, 
 
 p. 54. 
 3. Bail, p. 55. 
 
 (a) In treason, p. 55. 
 
 (b) In felony and certain misdemeanors, p. 55. 
 
 (c) Sow, after commitment, p. 57. 
 (c£) ira oiAer misdemeanors, p. 58. 
 
 (e) Warrant of deliverance, p. 58. 
 
 Section IV. Conviction of juvenile offenders for larceny, 
 p. 59. 
 
 (a) In what cases, p. 59. 
 
 (b) By wlwm, p. 59. 
 
 (c) Summons or warrant, 60. 
 (c£) Hearing, p. 60. 
 
 (e) Conviction and commitment, p. 60. 
 (/) Dismissal of the charge, p. 62. 
 
 SECTION I. 
 
 ARREST OF OFFENDER WITHOUT WARRANT. 
 
 (a) In the Act of committing the Offence.[l] 
 
 Every person, — private individuals as well as constables, — present 
 when a felony is committed or a dangerous wound given, not only may 
 apprehend the offender, but they are bound to do so.(a) 
 
 If a private person be present at an affray, he may stay the affrayers 
 until the heat is over, and then deliver them over to the constable, and 
 he may stop others coming to join either party ;(&) and a constable 
 of course may act in like manner, and may keep any of the affrayers- 
 in safe custody until he can bring them before a justice of the peace. 
 So, it has been holden that any person may arrest another, whom he 
 sees cheating with false dice.(c) But after the affray is ended, the par- 
 ties cannot be arrested without warrant.^) [2] 
 
 (a) 2 Hawk. e. 12, s. 1. 1 East, P.O. 3tt, (c) 2 Hawk. c. 12, s. 20. 
 
 s. 1. (d) 2 Hawk. o. 13, s. 8. Id. o. 12, s. 20. 
 
 (b) 2 Hawk. u. 13, s. 8. 2 Inst. 52. 
 
 [1] See Burns' Justice, tit. Arrest; Waterman's Cr. Law, tit. Arrest 
 [2] An arrest in criminal cases, is the apprehending or detaining of the person, in order 
 to be forthcoming to answer an alleged or suspected <:rime. Burn. Just. tit. Arrest. To 
 this arrest, all persons are in general liable when accused of capital or violent injuries. 4 
 Blk. Com. 289. The exemptions which exist in civil cases, here cease to operate. Thus a 
 married woman, when she has committed an offence for which she is subject to punishment 
 
21—2 ARREST OP OFFENDER ■WITHOUT WARRANT. 
 
 In all cases of offences against stat. 7 & 8 Geo. 4, c. 29, (Peel's Act, 
 Larceny, &c.) it is enacted, that any person found committing any 
 
 is liable to be apprehended. Neither in such case are senators and representatives in Con- 
 gress exempted from arrest. Const, of U. S. art. 1. sec. 6, § 1; 2 Story on Const. 325, et 
 seq. Nor in general, are the members of legislative bodies of the several states, exempted 
 from arrest in these oases. See Const, and Laws of several States. 
 
 When the party suspected is at large, he may in general, before an indictment has been 
 found, be apprehended, either without warrant, by a private individual, or by a constable or 
 other officer ex officio; or, under a warrant granted by a justice of the peace, or a judge or 
 the secretary of state; and if the supposed offender be in custody in a^civil suit, he may 
 be charged criminally under such warrant, though he cannot be taken, by its authority, out 
 of the custody of the court, and sent to the county jail. 2 Stra. 828 ; 1 Wms. J. Arrest ; 
 
 2 Barn. 114; 1 Barn. 129. 
 
 There seems to be considerable difficulty in precisely ascertaining in what cases a party 
 suspected may be apprehended before » bill is found against him. It having been enacted 
 by Magna Charta, that no one should be taken or imprisoned but by the lawful judgment of 
 his peers, or by the law of the land (9 Hen, 3 r c. 29); it was, for some time insisted that no 
 one could be deprived of his liberty for any offence, until after the finding of a bill against 
 him by a grand jury, which afforded probable evidence that he was guilty. 4 Inst, 17 6, 7, 8. 
 Comb. 359. All the deviations from this rule have been considered as encroachments on 
 the common law. 1 Show. 54; Hawk. b. 2, c. 13, s. 11, 16 and 18 ; 3 Burr. 1715 ; Burns' 
 Just. Warrant, III; Dick's Just. Peace, Justices of, 3. An exception was very early 
 allowed to prevail, when a thief was taken in a mainow, that is, apprehended with the 
 stolen goods actually in his possession. 1 Show. 24. And it is now fully established that 
 in every case of treason, felony, or actual breach of the peace, the party may be arrested on 
 suspicion, before any indictment ia preferred against him. 2 Hale, 12, 78, 108 ; Comb. 359 ; 
 
 3 Burr, 1775; Hawk. b. 2, c. 12, and c. 13, s. 11 and 18; 4 Bla. Cora. 290; Just. War- 
 rant, III. 
 
 Private individuals are enjoined by law to arrest an offender when present at the time a 
 felony is committed, or dangerous wound given, on pain of fine and imprisonment, if he 
 escape through their negligence. As to arrests by private persons, see in genera], Hawk, b. 
 2, c. 12, s. 1, c. 13, s. 7 and 8 ; 4 Bla. Com. 292 ; 1 Hale, 587 ; Com. Dig. Imprisonment, H. 4 
 Bac. Abr. Trespass, D. 3 ; Burns' Justice, Arrest, III ; 1 East, P. C. 298, &c. And every 
 private person is bound to arrest an officer, demanding his help in the taking of a felon, or 
 the suppressing an affray, and apprehending the affrayers, and, if he refuse to assist, 
 before the determination of the affray, he is punishable with fine and imprisonment. Id. 
 Ibid. Bac. Abr. Trespass, D. 3. A private individual may arrest a lunatic who seems dis- 
 posed to do mischief. Bac. Abr. Trespass," D. 3. ' If the officer has authority to make the 
 arrest, a by-stander, when called upon for aid, is guilty of a misdemeanor, if he does not 
 obey. But if the officer does not act under a lawful authority, the by-stander is a tres- 
 passer, if he assists him. Elder v. Morrison, 10 Wendell, 128. See Commonwealth v. Field, 
 13 Mass. 321 ; 1 Russell, 522, 525. And there are other cases in which, though the law 
 may not enjoin an arrest, yet it permits it. Thus upon probable, suspicion, a private person 
 may, if a felony has actually been committed by some one, arrest, or direct a peace officer 
 to arrest, the party whom he supposes to be guilty; Cald. 291; Douglas, 359; 1 Halo, 
 588, 9, Hawk, b. 2. o. 12; Com. Dig. Imprisonment, H. 4. Bac. Abr. Trespass, D. 3. 
 A folon may be arrested by any person without warrant, whether there be time to obtain 
 one or not; (Holly v. Mix, 3 Wendell, 350 ;) and if it can be proved that a felony has been 
 committed by some person and there were a reasonable and probable ground for suspicion, 
 he will not be liable to an action though it shall afterwards be proved that the party im- 
 prisoned was innocent. Id. Ibid; 4 Taunt. 24; 5 Price, 525, ace. ; but see Selw. 3d edit. 830, 
 notes; Bemb. cont. But if no felony has been committed by any one, such arrest is illegal. 
 Holly v. Mix, 3 Wendell, 350. 
 
ACT OF COMMITTING THE OFFENCE. 21 — 3. 
 
 offence punishable, either upon- indictment or upon summary convic- 
 tion, by virtue of that act, (except only the offence of angling in the 
 
 Pennsylvania. — An arrest may be made for. felony without warrant notwithstand- 
 ing section. 7, article 9 of the constitution of Pennsylvania ; and a, private person may 
 make it at his peril ; hut, quaere, if he can arrest for misdemeanor or for receiving 
 stolen goods. Wakely v. Eart, 6 Binney, 316. New York. — A private person cannot of 
 his own authority arrest a person who has been engaged in an affray or breach of the 
 peace. 11 John. 486. But during an affray, any person may without a warrant from a 
 magistrate to restrain any of the offenders, in order to preserve the peace. Piatt, J. Ibid. 
 See Wallace's case, 4 Roger's Rec. 111. See Solly v. Mix, 3 Wendell, 350 ; Commonwealth 
 v. Beacon, 8 Serg. & R. 49. In South Carolina, it has been decided, that the city guard of 
 Charleston, have authority, without warrant, to arrest persons committing affrays or breaches 
 of the peace. 2 Nott & M'Cord, 4*75. But there is a distinction as to the authority to 
 apprehend, when the felony was committed in the view of a private person, and when 
 committed in his. absence, and the arrest is afterwards attempted inconsequence of the 
 s uspicion of the guilt. 
 
 New Yoke. — All persons whatsoever who are present when a felony is commit- 
 ted, or a dangerous wound given, are bound to apprehend the offenders. 1 John. 486. 
 See Solley v. Mix, 3 Wendell's N. Y. Rep. 350. In the first case, any one may justify 
 the breaking open doors upon following the felon, and if be kill him, provided he could not 
 otherwise take him, the act is justifiable, and if he be killed in endeavoring to make such 
 arrest, it is murder in the parties resisting. 2 Hale, HI. But a private person cannot justify 
 breaking open doors to apprehend another upon probable suspicion of felony, and if he do, 
 and either party be killed in the attempt, it is manslaughter, but no more; (2 Hale, 82, 3 ; 
 Com. Dig. Imprison. H. 4; 4 Bla. Com. 293 ; 1 East, P. C. 299, 300;) it is not murder, be- 
 cause there is no malicious design to kill : but it amounts to manslaughter, because it would 
 be of most pernicious consequence if, under pretence of suspecting felony, a man unarmed 
 by any legal power might break open a house or kill another; and also because such arrest 
 upon suspicion is barely permitted by the law, and not enjoined as in the case of actual 
 presence, when a felony is committed. So, regularly, no private person can, of his own 
 authority, apprehend another for a bare breach of the peace after it is over ; for, as an officer 
 cannot justify such an arrest without a warrant from a, magistrate, a fortiori it cannot be 
 allowable in a private person. Hawk. b. 2, c. 12, s. 21 ; 1 East, P. C. 300 ; Bac. Abr. 
 Trespass, D. 3. "With respect to interference, and arrests in order to prevent the commission 
 of a crime, any person may lawfully lay hold of a lunatic about to commit any mischief, 
 which, if committed by a sane person, would constitute a, criminal offence ; or any other 
 person whom he shall see on the point of committing a treason or felony, or doing any act 
 which will manifestly endanger the life or person of another, and may detain him until it 
 may be reasonably presumed that he has changed his purpose : but where he interferes to 
 prevent others from fighting, he should first notify his intention to prevent the breach-of the 
 peace. Hawk. b. 2, c. 12, s. 19 ; 1 Hale, 589 ; 2 Rol. Ab. 559, E, pi. 3, u. 8 ; Sewl. 3d ed. 
 830; Com. Dig. Pleader, 3 M. 22; Bac. Abr. Trespass, D. 3; 1 East, P. C. 304. Thus any 
 one may justify breaking and entering a party's house and imprisoning him, to prevent him 
 from from murdering his wife, who cries out for assistance. 2 B. &. P. 260 ; Selw. 3d edit. 
 830 ; Bac. Abr. Trespass, D. 3. And the riding in a body to quell a riot is lawful, and no 
 information will be granted for small irregularities in the pursuit of such a design. 1 Bla. 
 Rep. 41 ; 2 B. & P. 264, n. a ; 1 East, P. C. 304. In one ancient case, the court seems to 
 have thought, that if the cause of suspicion should appear reasonable, the justification would 
 be good, though no felony were committed by any one. Samuel and Payne, Dougl. 359, 
 note 1. But the current of authorities seems to establish, that a private person, in justifying 
 the imprisonment, without warrant, of an innocent man, must state in his pleadings and 
 prove in evidence, that a felony was committed by some one, as well as that, under all the 
 circumstances, there was reasonable ground for suspecting the plaintiff, or he will be liable 
 
21 £ ARREST OF OFFENDER WITHOUT "WARRANT. 
 
 day time,) may be immediately apprehended without a warrant, by 
 any peace officer, — or by any owner of the property on or with respect 
 to which the offence shall be committed, — or by his servant, — or by 
 any person authorized by him, — and forthwith taken before some 
 neighboring justice of the peace, to be dealt with according to law.(a) 
 
 So, in all offences against stat. 7 & 8 Gr. 4, c. 30, (Peel's Act, Mali- 
 cious Injuries,) persons found offending may be apprehended in like 
 manner.(5) In these cases, and in cases within ch. 29 above mentioned, 
 the offender must be taken, either in the act of committing the 
 [*22] offence, or on fresh *pursuit;(c) but not on his return after 
 committing the offence, (d) 
 
 So, by the statute against night poachers, 9 Gr. 4, c. 69, s. 2, it is 
 enacted, that if any person shall be found on any -land, committing 
 any such offence as hereinbefore mentioned, it shall be lawful for the 
 owner or occupier of such land, — or for any person having a right or 
 reputed right of free-warren or free-chase thereon, — or for the lord of 
 the manor or reputed manor wherein such land may be situate, — and 
 also for any gamekeeper or servant of any of the persons herein men- 
 tioned, or any persons assisting such gamekeeper or servant,' — to seize 
 
 (a) 7 & 8 a. 4. o. 29, s. 63. B. v. Gwran, 3 Car. & P. 397. 
 
 (6) Id. s. 28. (d) B. v. Phelps et at. Car. & M. 180. 
 
 (c) Samway v. Boulfbee, 1 Mood. & R. 15. 
 
 to pay damages. 2 Inst. 52; Hawk. b. 2, u. 12, s. 8 to 19 ; 4 Taunt. 34; Com. Dig. Im- 
 prisonment, H. 4, Cald. 291 ; Dougl. 359 ; 6 T. R. 315 ; 3 Campb. 420 ; 4 Esp. Rep. 81 ; 1 
 Campb. 187 ; The case of Adams and Moore, Selw. N. P. 4th edit. 865, is not law 
 to the extent reported. It is safer, therefore, to obtain a warrant when time will allow ; 
 because, where the arrest is under a warrant, no action of trespass, but only an action on 
 the case lies, and the latter cannot be sustained unless the plaintiff can show, that the 
 charge was without probable cause, as well as malicious, and if the magistrate should erro- 
 neously issue his warrant, the party accusing will not be liable ; (3 Esp. Rep. 166 ; 3 T. R. 
 185 ; Boote v. Cooper, 1 T. R. 535 ; 3 Esp. Rep. 135 ;) but an arrest, when a warrant ought 
 previously to have been issued, will not be rendered legal by a subsequent issuing of that 
 authority. Bac. Abr. Trespass, D. 3. In the case, however, of a man apprehending a 
 party on hue and cry, or detaining a person offering goods for sale or pawn, where there is 
 reasonable suspicion of their having been stolen, there is an express enactment that he shall 
 be indemnified, though it afterwards appear that no felony was committed. 1 Geo. 2, c. 24, 
 s. 8. And it has been said, that a private person may legally, in the night-time, arrest a 
 suspicious night-walker, though he subsequently prove his innocence of any criminality. 1 
 East C. P. 303 ; 3 Taunt. 14. 
 
 A private person, who has apprehended another for treason or felony may deliver the 
 prisoner into the hands of a constable, or he may carry him to any jail in the county : but 
 the safer course seems to be, to cause him, as soon as convenience will permit, to be brought 
 before some justice of the peace, by whom the prisoner may be examined and bailed or 
 committed to prison. 1 Hale, 589; 2 Id. 77, 81; Hawk. b. 2, u. 13, s. 7, and b. 2, c. 16, 
 s. 3. Where a private person has apprehended another assisting in an affray, he may law- 
 fully detain him till the heat is over, and then deliver him to the constable. Hawk. b. 2, c. 
 13, s. 8. If a man be found attempting to commit a felony in the night, any one may ap- 
 prehend him, and detain him, until he be carried before a magistrate. 1 Ry. & M. C. C. 93. 
 See Waterman's Criminal Law, tit. Arrest. 
 
ACT OF COMMITTING} THE OFFENCE. 22 
 
 and apprehend such offender upon such land, or, in case of pursuit be- 
 ing made, in any other place to which he may have escaped therefrom, 
 and to deliver him as soon as may be into the custody of the peace 
 officer, in order to his being conveyed before two justices of the peace.(a) 
 The offender, however, to come within this clause of the act, must have 
 by nightj (that is, from the expiration of the first hour after sunset, 
 until the beginning of the last hour before sunrise,) unlawfully taken 
 or destroyed game or rabbits, in any land, whether open or inclosed, or 
 have by night unlawfully entered into or been in any land, whether 
 open or inclosed, with any gun, net, engine, or other instrument for 
 the purpose of destroying game.(6) So, if any person by night shall 
 take or destroy game or rabbits on a public road or foot path, or the 
 sides thereof, or at the openings, outlets, or gates from land into such 
 road or path, the owner or occupier of any land adjoining either side 
 of that part of such road or path where the offender shall be, and the 
 gamekeeper or servant of such owner or occupier, and any person 
 assisting such gamekeeper or servant, and for all the persons authorized 
 by stat. 9 Gr. 4, «. 69, s. 2, to apprehend any person offending against 
 the provisions of that act, may seize and apprehend any offender against 
 the provisions of this act.(c) But if the poachers are not found upon 
 the land or road committing the offence, but are met by the gamekeeper 
 on the road, on their return after committing it, he has no right to ap- 
 prehend them under these statutes.(cZ) It may be necessary to men- 
 tion, that a person appointed as a watcher, is within the meaning of 
 these clauses.(e) But the gamekeeper of a person who is not himself 
 the owner or occupier of the land, but has merely the permission of the 
 owner to shoot over it and to preserve the game there, cannot appre- 
 hend poachers under the above statutes, (g) 
 
 So, by the statute for the protection of works of art, and 
 scientific and literary collections, (A) *it is enacted that any person [*23] 
 found committing any offence against that act, may be immedi- 
 ately apprehended, without a warrant by any other person, and forth- 
 with taken before some neighboring justice of the peace, to be dealt 
 with according to law. 
 
 Also, by the recent statute for the prevention of offences,(i) it is en- 
 acted by sect. 10, that it shall be lawful for any person whatsoever to 
 apprehend any person who shall be found committing any offence 
 against the provisions of that Act, and to convey him or deliver him 
 to some constable or other peace officer, in order to his being convey- 
 
 (a) See B- v. Ball, E. & M. 330. (e) B. v. Price,*! Car. &P. 1T8. Rr. Field- 
 lb) See 9 G. 4, o. 69, s. 1. B. v. Tomlin- mg, 2 Car. & K. 621. 
 son, 1 Car. & P. 183. (g) B. v. Addis, 6 Car. & P. 388. 
 
 (c) 1 & 8 Vict. o. 29, s. 2. (h) 8 & 9 Vict. c. 44, s. 3. 
 
 (d) B. v. Meadhcm, 2 Car, & K. 633. («) 14 & 15 Vict. o. 19. 
 
23 ARREST OF OFFENDER WITHOUT "WARRANT. 
 
 ed as soon as conveniently may be before a justice of the peace, to 
 be dealt with, according to law. And the offences within the act are 
 — being found at night armed with any dangerous weapon or instru- 
 ment, with intent to break and enter a dwelling house or building, to 
 commit a felony therein, — or being found by night, having in his pos- 
 session any picklock key, crow, Jack, bit, or other implement of house- 
 breaking, — or being found by night, with his face blackened or other- 
 wise disguised, with intent, to commit a felony,- — or being found by 
 night in any dwelling house or building, with intent to commit a felo- 
 ny therein; (a) — using chloroform, laudanum, or other stupifying drug, 
 &c, with intent to enable or assist the offender or others to commit a 
 "felony ;(&) — inflicting grevious bodily harm with or without a weapon or 
 instrument, or cutting, stabbing or wounding any person ;(c) — malicious 
 injuries to railways, with intent to obstruct, upset, or injure any engine; 
 carriage, or truck, or to endanger the safety of any person traveling or 
 being on the railway ; — or maliciously casting or letting fall any wood, 
 stone, &c, upon a railway carriage, engine, &c, with intent to endan.* 
 ger any person in such carriage, or on such engine, &o> ;{d) maliciously 
 setting fire to a railway station or building, or goods therein. (e) 
 
 And lastly, by the last-mentioned act,(#) reciting that doubts had 
 been entertained as to the authority to apprehend persons found com- 
 mitting indictable offences in the night, it is enacted, that it shall be 
 lawful for any person whatsoever, to apprehend any person who shall 
 be found committing any indictable offence by night, and to convey 
 him or to deliver him to some constable or peace officer, in order to his 
 being conveyed, as soon as conveniently may be, before a justice of 
 the peace, to be dealt with according to law.[l] Night here means the 
 
 (a) 14 & 15 Yiot. 0. 19, s, 1. (d) Id. s. 1. 
 
 (6) Id. s. 3. (e) Id. s. 8. 
 
 (c) Id. a. 4. (g) Id. a. 11. 
 
 [1] The authority to arrest and imprison is greater in cases of felony than in matters of 
 mere misdemeanor ; and least of all in civil suits. 
 
 If a felony be committed, and the felon fly from justice, or a dangerous wound he given, 
 it is the duty of every man to use his best endeavors to prevent an escape ; and in such 
 cases, if fresh suit be made, and a fortiori, if hue and cry be levied, all who join in aid of 
 those, who began the suit, will be under the same protection of the law ; and the same 
 rule holds, if a felon, after arrest, break away as he is being carried to jail, and his pursuers 
 cannot retake him without killing him. 1 Hale, 489, 490 ; 1 Hawk. P. C. c. 28, s. 11 ; 
 Fost. 309; 1 East, P. C. c. 5, s. 67, p. 298. Thus, where upon a robbery committed by several, 
 the party robbed raised hue and cry, and the country pursued the robbers, and one of the 
 pursuers was killed by one of the robbers, it was held that this was murder, because the 
 country, upon hue and cry levied, are authorized by law to pursue and apprehend the mal- 
 efactors ; and that, although there were no warrant of a justice of the peace, to raise hue 
 and cry, nor any constable in the pursuit, yet the hue and cry was a good warrant in law 
 for the pursuers to apprehend the felons; and that, therefore, the killing of any of the pur- 
 suers was murder. Jackson's case, 1 Hale; 464. 
 
ACT OF' COMMITTING- THE OFFENCE. 23 — 1. 
 
 same as in burglary ;(a) namely, it commences at nine o'clock in the 
 evening, and ends at six in the mornirjg.(&) 
 
 (a) 14 & 15 Vict. c. 19, s. 13. (b) 1 Vict. c. 86, & 4. 
 
 But where private persons use their endeavors to bring felons to justice, some cautions 
 ought to be observed. In the first place, it should be ascertained that a felony has actually 
 been committed, or that an actual attempt to commit a felony is being made by the party 
 arrested ; for if that be not the case, no suspicion, however well grounded, will bring the 
 person so interposing within the protection which the law extends to persons acting with 
 proper authority. 2 Inst. 52; 112; Fost. 318; Samuel v. Payne, Dougl. 359. And in Coxe 
 v. Wirrall, Cro. Jac. 193, it was holden, that, without a fact, suspicion is no cause of arrest ;" 
 and 8 Ed. 4, 3 ; 5 Hen. T, 5 ; T Hen. 4, 35, are cited. If it is clear that a felony has been 
 committed, the next consideration will be, whether it was committed by the person intended 
 to be pursued or arrested ; for supposing a felony to have been actually committed, but not 
 by the person arrested or pursued upon: suspicion, this suspicion, though probably well 
 founded, wttl not bring the person endeavoring to arrest or imprison within the protection 
 of the law, so far as to excuse him from the guilt of manslaughter, if he should kill, or on 
 the other hand, to make the killing of him amount to murder. It seems that, in either case, 
 it would only be manslaughter; the one not having used due diligence to be- apprised of the 
 truth of the fact, the other not having submitted and rendered himself to justice. 1 Hale, 
 490 ; Fost. 318. See State v. Rutherford, 1 Hawk's N. C. Eep. 45T. 
 
 Upon an indictment for wounding it appeared that the prisoner had asked leave to take a 
 basket of ashes from the prosecutor's ash-pit, which he was permitted to do ; as he was 
 carrying away the ashes the prosecutor's apprentice saw the spout of a new tea-kettle, 
 which had stood on a shelf near the ash-pit, among the ashes, and having given the alarm, 
 the prosecutor seized the prisoner to detain' him while a. constable was sent for; the prisoner 
 resisted, and in the struggle both fell, and the prisoner cut the prosecutor with a knife : a 
 rattle of copper had been heajd while the prisoner was at the ash-pit : it was objected that 
 the, prosecutor had no right to detain the prisoner. Alderson, B., "That will depend on 
 whether the jury are satisfied that the prisoner had in fact stolen the tea-kettle. If he had 
 stolen the tea-kettle, the prosecutor had a right to detain him, and this wounding will be 
 felony." Beg. v. Price, S. C. & P. 282, Alderson, B. 
 
 In a late case, where Headley, being called up in the night by one of his servants, found 
 that his stable had been attempted, and the door cut in such a manner that the bolt was 
 exposed, and found the prisoner and another person concealed in the yard ; and a steel 
 instrument was also found, by which the door of the stable appeared to have been cut, and 
 some house-brgaking instruments were also found near the spot where the prisoner and his 
 companion were concealed, and under these circumstances they had been apprehended and 
 detained by Headley and his servant, and during such detention, and in the course of the 
 same night, the prisoner had cut Hoadley's servant with a knife, a point was made that such 
 cutting was not within the 43 Geo. 3, c. 58, on the ground that the prisoner was not law- 
 fully in custody, there being no warrant, and an attempt to commit a felony being only a 
 misdemeanor. But the judges held that the prisoner being detected in the night attempting 
 to commit a felony, might be lawfully detained without a warrant, until he could- be carried 
 before a magistrate. Rex v. Hunt, East. T. 1825 ; Ry. & Mood, Cr. C. 93. See Rex v. How- 
 ort/v-R. & M. C. C. R. 20T. In Exparte Krans, 1 B. &. 0. 261, Abbott, C. J., said, "it is 
 lawful for any person to take into custody a man charged with felony, and keep him until 
 he can be taken before a magistrate " 
 
 These distinctions between officers and private persons proceed upon the principle of dis- 
 couraging persons from proceeding to extremities upon their own private suspicion or 
 authority. And upon this principle, it appears to have been considered, that a private per- 
 Bon is not bound to arrest any one standing indicted for felony, against whom no warrant 
 can be produced at the time ; and therefore, the law does not hold out the same indemnity 
 
 10 
 
23 2 ARREST OF OFFENDER WITHOUT "WARRANT. 
 
 (b) In case of riots,. 
 
 A private person may lawfully endeavour to prevent those whom 
 he sees engaged in a riot or rout, from executing their purpose, 
 [*24] and he may stop those whom he shall *see coming to join 
 them,(«) and may arrest those he sees engaged in it. And for 
 this purpose, he may lawfully arm himself, and may make use of his 
 arms, in suppressing' the riot ; but it is not prudent or advisable for pri- 
 vate persons thus to use arms, of their own authority, in ordinary cases, 
 as under pretence of keeping the peace, they may be guilty of or cause 
 enormous breaches of it; it is only in, case of riots, which savour of re- 
 bellion, that such violent methods seem proper. 
 
 And what may thus be done by a private person, may also be done 
 by the military, even although they be not at the time acting under 
 the orders of a justice of peace. But they must be cautious not to use 
 their arms in such a case, where there is no actual necessity, except in- 
 deed in their own defence in case they should be attacked. 
 
 Constables and other peace officers also, not only may do, but it is one 
 of the duties of their office to do, all that in them lies, for the suppres- 
 sing of the riot, [and the arrest of the rioters ;] and they may command 
 all other persons to assist them in doing so.(6)[l] 
 
 (a) 1 Hawk, c. 65, s. 11. (V) 1 Hawk. c. 65, s. 11. 
 
 to such person, as it does to constables and other officers, who are ex officio, not merely per- 
 mitted, but enjoined by law, to arrest the parties, as well on probable suspicion of felony, as 
 incase of felony actually committed ;. and who may therefore well arrest upon the finding 
 of the fact by the grand inquest on oath, which is suspicion grounded on high authority. 2 
 Hale, 84, 85, 87, 91, 93, sed vide, 1 Hale, 489, 490. Hawkins, in alluding to the power of 
 arrest by officers in this case, gives as a reason that there ij a charge against the party on 
 record. 1 Hawk. P. C. c. 28, s. 12. But upon this, it is remarked, that it does not readily 
 occur why officers only can take notice of the charge on record. 1 East, P. 0. c. 5, s. 68, 
 p. 300. In this case, however, it might perhaps be well contended, that a person arresting 
 another with the knowledge of the indictment having been found, cannot properly be con- 
 sidered as acting upon his own private suspicion or authority ; and ought, therefore, to have 
 the same protection as the officers of justice. And it seems agreed, that the indictment 
 found is a good cause of arrest by private persons, if it may be made without the death of 
 the felon: (Dalt. c. 110, s. 5 ; 1 East, P. C. u. 5, s. 68, p. 301 ;) but it is said, that, if he be 
 killed, their justification must depend upon the fact of the party's guilt, which it will be 
 incumbent on them to make out : otherwise, they will be guilty of manslaughter. 2 Hale, 
 54, 92 ; and see 1 East, P. C. c. 5, s. 68, p. 301, where it is said, that if the fact of the guilt 
 of the party be necessary for their complete justification, it is conceived, that the bill of 
 indictment found by the grand jury would, for that purpose, be prima facie evidence of the 
 fact. Certainly not. See Rex v. Turner, R. & M. 0. C. R. 347. 
 
 [1] The office of constable is either ministerial, in obeying warrants and precepts of jus- 
 tices, coroners and sheriffs, and the charge of private individuals, or is original, as a conser- 
 vator of the peace at common law, or by virtue of particular statutes. See 2 Hale, 88 to 97. 
 
 By the original and inherent power which he possesses, he may, for treason, felony, breach 
 of the peace, and some misdemeanors less than felony, committed in his view, apprehend 
 the supposed offender, virtute officii, without any warrant. 1 Hale, 587 ; 1 East, P. 0. 303 ; 
 
IN CASE OF RIOTS. 24 
 
 So, justices of the peace, by stat. 34 Ed. 3, c. 1, have power to re- 
 strain rioters, and to pursue, arrest, take, and chastise theni, according 
 
 Selw. N. P. 3d ed. 830, n. y. ; Churchill v. Matthews and others, Dick. J. Arrest, II. See U. 
 S. v. Hart, 1 Peters' C. C. E. 390; Mayo v. Wilson, 1 ]ST. Hamp. E. 53. A constable may, 
 ex officio, and without warrant, arrest a breaker of the peace, and bring him before the jus- 
 tice. Taylor v. Strong, 3 Wend. 384. This should be done within a reasonable time after 
 the affray. lb.; see the case of Walcely v. Hart, 6 Binn. (Penn.) Eep. 316. In general, 
 when an affray taks place in his presence, he may either keep the parties in custody till it is 
 over, or he may carry them immediately before a magistrate.- Selw. N\ P. 3d ed. 830. He 
 has, at least, an equal power to apprehend with any individual, and the chief difference be- 
 tween his power and duty and that of a private person, seems to . be, that the former has 
 greater authority to demand the assistance of others, and is liable to a severer fine for any 
 neglect of duty, and that he ought to bring the party suspected before a justice of the peace, 
 in order to be examined. Hawk. b. 2, u. 13, s. 7. Another difference seems to be, that a 
 private individual cannot, of his own accord, arrest a person, except upon his own suspicion, 
 and not upon report, or the suspicion of another, (Hawk. b. 2, e. 12, s. 15 ; Cald. 293 ; 1 
 Bast P. C. 300, ],) whereas, a constable, or other peace officer, may, if a felony has been 
 committed by some one, lawfully apprehend a supposed offender upon the information of 
 others, without any positive charge, or his own knowledge of the circumstances on which 
 the suspicion is founded. Cald. 291; "1 East P. 0. 301 ; Selw. N. P. 2d ed. 830 ; 4 Esp. 80 ; 
 6 T. R. 315. And a constable may justify an imprisonment, without warrant, on a reason- 
 able charge of felony made to him, although he afterwards discharges the prisoner withaut 
 taking him before a magistrate, and although it turn out that no felony was committed by 
 any one. Holt C. N. P. 478 ; Cald. 291. In general, however, a constable cannot, any 
 more than a private person, "of b.is own accord, and without an- express charge or warrant, 
 justify the arrest of a supposed offender, upon suspicion of his guilt, unless he can show that 
 a felony was committed by some person as well as the reasonableness of the suspicion that 
 the party imprisoned is guilty. 4 Esp. Eep. 80 ; Holt C. N. P. 478 ; Hawk. b. 2, u. 12, si. 
 16 ; 2 Hale, 92, 87, n. f. ; Cald. 281. There are, however, authorities in favor, of an excep- 
 tion to this rule in the case of night-walkers, and persons reasonably suspected in the night, 
 of felony. 3 Taunt. 14; 1 East P. C. 303 ; Hawk. b. 2, c. 12, s. 20 ; 2 Hale, 89 ; 5 Edw. 3, c. 
 14; 2 Inst. 52 ; ,Bae. Ab. tit. Constable, Gr. 
 
 Constables are bound, upon a direct charge of a felony, and reasonable grounds of suspi- 
 cion laid before them, to apprehend the party accused, (2 Hale, 91, 92; 1 East P. C. 301; 
 Holt C. N. P. 478;) and if upon a charge Of burglary, or other felony, he be required to appre- 
 hend the offender, or to make hue and cry, and neglect so to do, he may be indicted. Cro. 
 Eliz. 654;;2 Hale, 90, 91. And a peace officer, upon a reasonable charge of felony, may 
 justify an arrest without a warrant, although no felony has been committed, (Doug. 360 ; 4 
 Esp. Eep. 80 ; Cald. 291 ; 3 Campb. 420 ; 2 Esp. Eep. 540 ; Selw. N. P. 3d ed. 830 ; 1 East 
 P. C. 301,) because, as observed by Lord Hale, (2 Hale, 91, 92,) the constable cannot judge 
 whether the party be guilty or not, till he come to his trial, which cannot be till after his ar- 
 rest ; and, as observed by Lord Mansfield, in Samuel v. Payne, if a man charges another, with, 
 a felony, and requires an officer to take him into custody, and carry him before a magistrate, 
 it would be most mischievous that'the officer should be bound to try, and, at his peril, exer- 
 cise his judgment on the truth of the charge ; he that makes the charge should alone be an- 
 swerable ; the officer does his duty in conveying the accused before a magistrate, who is au- 
 thorized to examine, and commit, or discharge. Dougl. 360. Killing an officer will be mur- 
 der, though he has no warrant, and was not present when the felony was committed, but 
 takes the party upon a charge only ; and though that charge does not, in terms, specify all 
 the particulars necessary to constitute the felony. Russ. & Ey. 0. C. 329. And, it should 
 seem, that even upon a charge of a breach the peace not committed in the view of the 
 constable, if he arrest the : party, and no breach of the peace was committed, the person 
 who preferred the charge alone is liable, (3 Campb. 420; 2 Hale, 90; 6 T. E. 315, but 
 quasre, see 1 East P. C. 305,) though it has been held, that a constable cannot arrest for 
 
24 1 ARREST OF OFFENDER "WITHOUT "WARRANT. 
 
 to their trespass and offence, and to cause to be imprisoned and duly 
 punished according to the law and custom of the realm. 
 
 If any justice of peace, therefore, find persons riotously assembled, 
 he may not only arrest the offenders himself, and bind them over to 
 keep the peace, and be of good behaviour, or imprison them until they ' 
 
 an affray or breach of the peace, not committed in hia view. Cro. Eliz. 375 ; 2 Esp. Rep. 
 540 ; Hawk. b. 2, c. 13, a. 8 ; Bac. Ab. Constable, 0. ; 1 East P. 0. 395. See on this head, 
 lRuss. 213, 274, 506; Roscoe'S Dig. Or. Ev. 614. Suspicion that a party has on a former 
 occasion committed a misdemeanor, is no justification for giving him in charge to a consta- 
 ble, without a justice's warrant, and there is no distinction in this respect, between one kind 
 of misdemeanor and another, as breach of the peace and fraud. Fox v. Gaunt, 3 Barn. & 
 Adol. 798. And it seems that a coastable is not justified in apprehending and imprisoning a 
 person on suspicion of having received stolen goods, on the mere assertion of one of the 
 principal felons. 2 Stark. 167. It seems preferable, in all cases not requiring immediate in- 
 terference, for a constable to act under a warrant, because, if he does not, he will not be en- 
 titled to the benefit of the provision in the statute 24 Geo. 2, c. 44, which protects him, on 
 granting a copy for every thing done in obedience to a warrant. 3 Esp. Rep. 226. 
 
 A constable may break open doors to take a felon, if he be in the house, and entry denied 
 after demand, and notice given that he is a constable, (see Roscoe's Dig. Cr. Ev. 629, 630. 
 In reference to the notice requisite in such cases, see 1 Russ. 517, 518; Roscoe's Dig. Cr. 
 Ev. 525, 526; State v. Caldwell, 2 Tyler's (Verm.) Rep. 214,) and if, in such attempt, the 
 constable, or any in his assistance be killed, after competent notice of his office, it is murder ; 
 and if the felon resist and cannot be taken, whether it be after or before the arrest, the kill- 
 ing of the felon, who cannot otherwise be taken, is no felony, because the law enjoins a con- 
 stable to take a felon, and if he-omits his duty he is indictable, and subject to-fine and im- 
 prisonment. 2 Hale, 90, 91, &c. So, where a felony has been oommitted by some one, and 
 there be reasonable . ground to suspect that a person be the offender, a constable has a 
 similar power of breaking open doors to apprehend him. Id. 92. Doors also may be bro- 
 ken by a constable where a felony is not yet committed, but likely to be so, in order to pre- 
 vent it. Id. 94, 95 ; 2 B. & P. 260. Attempting, illegally, to arrest a man, is sufficient to 
 reduce killing the person making the attempt, to manslaughter, though the arrest was not 
 actually made, and though the prisoner had armed himself with a deadly weapon to resist 
 such attempt, if the prisoner was in such a situation that he could not have escaped from 
 the arrest; and it is not necessary that he should have given warning to the person at- 
 tempting to arrest him, before he struck the blow. Ry. & M. C. C. 80. 
 
 A constable having arrested the offender, may, in case of an affray, put him in the stocks, 
 or otherwise confine him, till the heat of bis passion or intemperance is over, or till he can 
 bring him before a justice of the peace, and, in case of any offence for which the party sus- 
 pected may be apprehended, a constable may convey him to the sheriff or jailer of the county 
 or franchise : but the safest and best course is said to be, in all cases, to carry the offender 
 before a justice of the peace, as soon as circumstances will permit. 2 Hale, 95 ; 6 Selw. N. 
 P. 3d ed. 830, n. y. But where the parish clerk refused to read in church, a notice pre- 
 sented to him for that purpose, and the person presenting it read it himself, at a time when 
 no part of the church service was going on ; it was held, that though a constable might be 
 justified in removing him from the church, and detaining him until the service was over, yet 
 he could not legally detain him afterwards to take him before a magistrate. - 2 B. & C. 699. 
 And a constable arresting a man on suspicion of felony, njust take him before a justice to 
 be examined, as soon as he reasonably can: and, it seems, a constable cannot justify hand- 
 cuffing a prisoner, unless it be necessary to prevent his escape. 4 B. & C. 596. See Right 
 v. Court, 6 Dowl. & Ry. 623 ; Taylor v. Strong, 3 Wend. 384. Under the revised laws of 
 New York, a constable may detain a prisoner twelve hours to find a magistrate to hear 
 the cauBe. Before this provision in the revised laws, he might detain him a reasonable time 
 if he acted bona fide for that purpose. Arnold v. Steeves, 10 Wend. 514. 
 
IN CASE OF RIOTS. 24 — 2 
 
 find bail, but be may also autborize otbers to arrest tbem, by a mere 
 verbal command -without warrant ; and the persons so commanded may 
 pursue and arrest the offenders, as well in bis absence as in bis pres- 
 ence.^) And if justices fall in their duty in this respect, it is a high 
 misdemeanor, and punishable upon indictment or information with fine 
 or imprisonment, or both.(J)[2] 
 
 And by stat. 13 H. 4, c. 7, if any riot, assembly, or rout of people, 
 against the law, be made in the realm, [whether in the presence of jus- 
 tices of the peace or in their absence,](c) the justices of the peace, three 
 or two of them at the least, and the sheriff or under-sheriff of the coun- 
 ty where such riot shall be made, shall come with the power of the 
 county, if need be, to arrest them, and shall arrest them ; and the same 
 justices and sheriff or under-sheriff shall have power to record what 
 they shall find so done in their presence against the law, and by that 
 record such trespassers and offenders shall be convicted, in the manner 
 and form contained in the statute of forcible entries.('i)[3J 
 
 As to the power of the county, or posse comitatus, above *men- [*25] 
 tioned, it is enacted by stat. 2 H. 5, c. 8 ; s. 2, that the king's 
 liege people (not being clergymen, women, persons, decrepit, or infants 
 
 (a) 1 Hawk. e. 65, a. 16. (c) 1 Hawk, c. 65, a. 22. 
 
 (i) See R. Y. Pinney, 3 B. & Ad. 94,1. (d) See 1 Arch. J. P. 461 
 
 [2] Justices of the peace have a double power in relation to the arrest of wrongdoers, the 
 first branch of which authority may be personally exercised on the commission of a felony 
 or breach of the peace in their presence, the second, by issuing a warrant on the evidence 
 and complaint of another. And if a justice of the peace see a felony or breach of the peace 
 committed, he may either himself arrest the parties offending, or verbally command any per- 
 son to take them into custody. And it seems, that in order to prevent the riotous conse- 
 quences of a tumultuous assembly, he may command his servants or others to arrest the 
 affirayers, though, in general, if an offence be committed in his absence) he must grant his 
 warrant in writing to apprehend the offender. 2 Hale, 86, 8? ; 2 Wils. 151, 158 ; Cro. Jac. 
 81 ; Hawk. b. 2, c. 13, s. 13 : Bac. Ab. Justices of Peace, B. 5, and Trespass, D. 13 ; Dick, 
 just. tit. Arrest, II. It is laid down (Dalt. Just, c, 111 ; Dick. Just. 114,) that any justice 
 or the sheriff may take of the county any number that he shall think meet, to pursue, arrest, 
 and imprison traitors and felons, or such as break, or go about to break, or disturb the king's 
 peace, and that every man being required, ought to assist and aid them on pain of fine and 
 imprisonment. 
 
 The law requires active conduct from a magistrate in suppressing riots, and if he finds per- 
 sons riotously assembled, he may not only arrest the offenders, but require others to do so, 
 by a bare verbal command. 1 Veates Rep. 418. 
 
 [3] Where the magistrate is not present when a crime has been convicted, he ought not, 
 upon mere discretion, to send the party accused to prison, but upon due consideration of 
 evidence adduced before him. It was well observed by Oh. J. Pratt (2 Wils. 158, and see 
 Comb. 359,) that in case a magistrate has notice, or a particular knowledge, that a person 
 has been guilty of an offence, yet it is not a sufficient ground for him to commit the criminal, 
 but in that ease he is rather a witness than a magistrate, and ought to make oath of the fact, 
 before some other magistrate, who should thereupon act the official part, by granting a war- 
 rant to apprehend the offender, it being more fit that the accuser should appear as a witness 
 than act as a magistrate. 
 
25 ARREST OF OFFENDER WITHOUT "WARRANT. 
 
 under the age of fifteen,) being sufficient to travel, shall be assistants 
 to such justices, upon reasonable warning, to ride with them in aid to 
 resist such riots, routs, and assemblies, on pain of imprisonment, and 
 to make fine and ransom to the king. And it has been holden, that 
 those who thus attend the justices, in order to suppress a riot, may 
 take with them such weapons as shall be necessary to enable them ef- 
 fectually to do it; and that they may justify beating, .wounding, or 
 even killing; such rioters as shall 'resist, or refuse to surrender them- 
 selves.(a)[l] 
 
 (a) lHawk. o. 65, s. 21. 
 
 [1] Justices >of the peace whose existence asj& part of the judiciary, is provided in most of 
 the constitutions of the United States derive their powers as " conservators of the peace " 
 from the common law, more or less extended or restrained in the different states by statutory 
 enactment. In New York, it is said that their duty and authority are derived in some degree 
 from the common law; but they depend principally flpon the several- statutes which have 
 created objects of their jurisdiction, defined their powers or imposed duties upon them. See 
 Waterman's Treatise, Ch. 1. In Massachusetts Mr., Justice Se wall says: "The office of jus- 
 tice of the peace was introduced by our forefathers at their, migration ; and in all particulars 
 then applicable or which have since become applicable to this jurisdiction may be considered 
 as possessing here the general character and functions allowed to it in England by force of 
 the statutes which had there created and regulated this ancient and important office. The 
 statutes since enacted, have enumerated the powers and duties of justices of the peace, both 
 in civil and criminal matters ; so that now there is little if any occasion to recur to the English 
 statutes for the powers of this office, and perhaps the enumeration itself precludes such re- 
 currence. The office therefore, exists here principally if not entirely according to our sta- 
 tutes." Com. v. Foster,' 1 Mass. Rep. 489. In Pennsylvania the power of ?. justice of the 
 peace in criminal matters as at common law is almost untouched by statute. In Arkansas 
 the constitution of the state provides that " Justices of the peace shall in no case have juris- 
 diction to try and determine any criminal case or penal offence against statute, hut may sit 
 as examining courts ; and commit, discharge or recognize, to the court having jurisdiction 
 for further trial, offenders against the peace. For the foregoing purposes they shall have 
 power to issue all necessary process. They shall also have power to bind to keep the peace 
 or for good behaviour." And by statute, power is given them, " to cause to be kept all laws 
 made for the preservation of the public peace." &c. 
 
 When a magistrate acts in his office with a partial, malicious or corrupt motive he is guilty, 
 of a misdemeanor and may he proceeded against by indictment or criminal information. 
 R. v. Cozens, 2 Doug. 426. But he will never be punished criminally for n. mere error in 
 judgment nor in any case unless he appears to haVe acted from an oppressive, dishonest or 
 corrupt motive, under which fear and favor are included. In re Fentimm, 4 Nev. & M. 128 ; 
 
 1 Ad. & El. 127. Justices are also liable civilly, when they act ministerially; but the party 
 shall not have both remedies, and bofore the court will grant an information they will require 
 the relinquishment of the civil action, if such has been begun.; and even where an indict- 
 ment has actually been found, the attorney general will grant a nolle prosequi, if it appear that 
 the prosecutor is determined to carry on a civil action at the same time. R. v. Fielding, 2 
 Burr. 719. When a justice of the peace in or out of sessions has jurisdiction and acts judici- 
 ally he is.not liable to an action, however erroneous the conclusion at which he arrives or 
 corrupt his motives in coming to it ; in such case the only remedy is by information. 2 
 Hawk. oh. 13; Ackerly v. Parkinson, 3 M. & S. 425; Bassett v. Goodscatt, 3 Wils. 121; 
 ■ Griffiths v. Harris, 2 M. & W. 335 ; Willcins v. Hemsworth, 3 N. & P. 55 ; GarneUv. Verrand, 6 
 B.&C, 611; State v., Campbell, 2 Tyler, 177; Ambler v. Churcli, 1 Root, 211; Reid v. Mood, 
 
 2 Nott & McOord, 168 ; Bolcomb v. Cornish, 8 Oonn. 375 ; State v. Porter, Const. Reps. 694 ; 
 
IN CASE OF RIOTS. 25—1 
 
 As to rioters remaining together after the riot act, or rather procla- 
 mation to disperse, has been read, and which is made a felony by statute 
 1 Gl. 1, st. 2, c. 5, s. 1, it is enacted by sec. 3 of that statute, that if such 
 persons, so unlawfully, riotously, and tumultuously assembled, or twelve 
 or more of them, after proclamation made in manner aforesaid, shall 
 continue together and not disperse themselves within one hour, then it 
 shall and may be lawfubto and for every justice of the peace, sheriff, 
 or under-sheriff of the county where such assembly shall be,- — and also 
 to and for every high and petty constable and other peace officer within 
 such county, — and to and for also every mayor, justice of the peace, 
 sheriff, bailiff, and other head officer, high or petty constable and other 
 peace officer of any city or town corporate, where such assembly shall 
 be, — and to and for such other person and persons as shall be com- 
 manded to be assisting unto any such justice of the peace, sheriff, &c, 
 (who are hereby authorized and empowered to command all His Ma- 
 jesty's subjects of age and ability, to be assisting to them therein,) to 
 seize and apprehend, and they are hereby required to seize and appre- 
 hend, such persons so unlawfully, riotously, and tumultuously con- 
 tinuing together after proclamation made as aforesaid, and forthwith to 
 carry the persons so apprehended before one or more of His Majesty's 
 justices of the peace of the county or place where such person shall be 
 
 Lining v. Bentham, 2 Bay, 1 ; Gregory v. Brown, 4 Bibb, 28 ; Walker v. Floyd, ib. 23? . When 
 a criminal information is applied for' against magistrates, the question for the court is not 
 whether their acts be found upon investigation to be strictly right or not, but whether they 
 were influenced by corrupt, oppressive or partial motives ; or acted in error and from mis- 
 take only. In the latter case the court will not grant the rule." R. v. Badger, 12 Law J. N. 
 S. M. C. 68 ; 7 Jur. 216, Q. B. See R. v. Arrowsmith, 2 Dowl. N. S. 704 ; Ex parte BeauclercJe, 
 7 Jur. 3*73 ; Ex parte Lee, ib. 441 ; Ex parte Marlborough, 1 New Sess. Cas. 195 ; 13 Law J. 
 N. S. 105'; R. v. Harris, ib. 162. But he is liable to an action for exercising authority where 
 he has none. Eh/ v. Thompson, 3 A. K. Marsh, 70. An information was granted against a 
 justice for not actively assisting in suppressing a riot ; the law requires from a. Justice an 
 active conduct in suppressing riots ; and if he finds persons riotously assembled, he may not 
 only arrest offenders, but authorize others to arrest them by a bare verbal command without 
 other warrant. Respub. v. Montgomery, 1 Teates, 419. 
 
 The jurisdiction of a justice of the peace is limited; and when that is exceeded responsi- 
 bility attaches, and every thing done is void ; and this, whether such want of jurisdiction ap- 
 ply to the subject matter or the person. Wise v. Withers, 3 Cranch, 331 ; Hall v. Rogers, 2 
 Blackf. 429. If a justice issues a warrant contrary to the provisions of the constitution, or 
 in a matter over which he has no jurisdiction, and the party is arrested, the justice is an- 
 swerable in an action of trespass. Johnson v. Tompkins, Baldwin's Rep. 588. 
 
 A conviction and judgment for felony against a justice of the peace, is a forfeiture of his 
 office; nor does a pardon restore his capacity. Fregate's case, 2 Leigh, 724. 
 
 "Whenever a new power is conferred on' a justice, he must proceed in the mode prescribed 
 by the statute. Bigelow v. Stearns, 19 Johns. 36; State v. Barrow, 3 Murphy, 121. Any 
 general authority by justices to constables, to fill up or alter process, would be void and 
 highly improper. Pierce v. Hubbard, 18 Johns. 405. Acts done by a justice in a judicial 
 capacity, who was not duly qualified, are not absolutely void." Margate Go. v. Hannan, 3 B. & 
 A. 266. Injudicial acts by justices, all things shall be intended regular till the contrary appear : 
 ■aUter of ministerial acts, for there all must appear to he right. R. v. Venalles, 8 Mod. 378. 
 
25 ,2 ARREST OF OFFENDER WITHOUT "WARRANT. 
 
 so apprehended, in order to their being proceeded against for such their 
 offences according to law.(a)[2] 
 
 (c) After offence committed. 
 
 Upon a strong case of suspicion, a private person may justify the 
 apprehension of another for felony, if in fact a felony was committed. (J) 
 But a suspicion that a man has committed a misdemeanor on a former 
 occasion, will not justify a private person in giving him in charge t o 
 
 a constable ; and there is no distinction in this respect between 
 [*26] one kind of misdemeanor and another.(c) And even *in cases 
 
 of felony, it is often imprudent in a private person to arrest for 
 an offence, formerly committed, at least unless he was present at the 
 time the party committed it, and there is danger of his otherwise escap- 
 ing. It is better for a private person to disclose his suspicion to the 
 constable, and let him take upon himself the responsibility of arresting 
 the suspected party, or to a justice of the peace, who may grant a war- 
 rant to a constable to apprehend him.[l] 
 
 (a) 1 G. 1, St. 2, e. 5, s. 3. (c) Fox v. Gaunt, 3 B k Ad. 798 ; and see 
 
 (6) See JBeckwith v. PMlby, 6 B. &, C. 635. Matthews v. BidcUph, 11 Law J. 13m. 
 
 [2] An unlawful assembly may be dispersed by a magistrate, whenever he finds a state 
 of things existing calling for an interference, in order to the preservation of the public peace. 
 He need not postpone his action until the unlawful assembly ripens into an actual riot. " It 
 is better to anticipate more dangerous results by energetic intervention at the inception of 
 a breach of the peace, than by delay to permit the tumult to acquire such strength as to de - 
 mand for its suppression those urgent measures which should be reserved for great extreme- 
 ties. The justice may not only arrest the offenders and bind them to their good behavior, 
 or imprison them if they do not offer adequate bail ; but he may authorize others to arrest 
 them by a bare verbal command, without any other warrant ; and all .citizens present whom 
 he may invoke to bis aid, are bound promptly to respond to his requisition, and support him 
 in maintaining the peace. A justice of the peace either present or called on such an occa- 
 sion, who neglects or refuses to do his utmost for the suppression of such unlawful assem- 
 blies, subjects himself to indictment and conviction for a criminal misdemeanor." Wharton's 
 Cr. L. p. 728, citing State v. IAttlejohn, 1 Bay, 316. 
 
 But where an unlawful assembly becomes an aetual'riot, more decisive measures should 
 be adopted. Citizens may, of their own authority, lawfully endeavor to suppress the riot, 
 and for that purpose may even arm themselves. See Waterman's Orim. Law, tit. Riot. 
 
 [1] Pennsylvania. — " The provisions of the state constitution, (Art. 9, see. 8,) so far as it 
 concerns warrants, only guards against their abuse, &c. But it is no where said there shall 
 be no arrest without warrant. To have said so would have endangered the safety of society. 
 The folon who is seen to commit murder, or rtbbery, must be^arrested upon the spot, or 
 suffered to escape. So, though not seen, yet if known to have committed felony, and pur- 
 sued, he may be arrested, with or without warrant, by any person. And even where there 
 is only probable cause of suspicion, any person may without warrant at his peril make an 
 arrest ; for nothing short of proving the felony will justify the arrest. These are principles 
 of common law essential to the welfare of society, and not intended to be altered or impair- 
 ed by the constitution.'' Opinion of C. J. Tilghman. 6 Binn. Rep. 318. 
 
 A private person, in order to justify an arrest, without process, must show not only a rea- 
 sonable cause for suspicion, but in addition to such cause that a felony was actually commit- 
 
A.FTER OFFENCE COMMITTED. 26 
 
 And if a reasonable charge of felony against a person be made to a 
 constable, the constable will be justified in arresting him without war- 
 rant, although it afterwards turn out that the person was perfectly in- 
 nocent, or that no felony in fact had been committed.(a) But it has 
 been holden that a constable is not justified in apprehending a person 
 as a receiver of stolen goods, on the mere assertion of the principal 
 felon.(6) Nor is a constable justified in taking a person into custody 
 for a mere assault, without a warrant, unless he himself was present at 
 the time the assault was committed, (c) or there be a reasonable ground 
 for apprehending a continuance or renewal of it ;(d) and the same as to 
 all breaches of peace out of his view.(e)[2] 
 
 " Or if a constable have a reasonable suspicion that a man has com- 
 mitted felony, he may apprehend him.(g) So may a private individual, 
 
 {a) Samuel v. Payne et <z7., Doug. 359 ; (d) Baynes v. Brewster, 11 Law J. 5m. 
 EobbSY. Branscoml, 3 Camp. 420 ; Davis y. (e) 2 Hawk. o. 13, s. 8 ; Id. o. 12, s. 20. 
 Bussett, 5 Bing. 354; Gowks v. Dunbar, (g) Ledwith v. Catchpole, Cald. 291 ; Law- 
 Moody & M. 3? ; R. v. Ford, R. & Ry. 329. rence y. Hedger, 3 Taunt. 14; Nicolscm v. 
 
 (b) Isaacs y. Brand, 2 Stork, 161. ffardwich, 5 Car. A. P. 495; Beckwith y. 
 
 (c) Cowpey y. Senley, 2 Esp. 540. PhUby, 6 B. & 0. 635. 
 
 ted ; and in this respect he does not stand on as favorable ground as a constable, who may 
 justify an arrest, for a reasonable cause of suspicion alone. 8 Watts & S. 308. 
 
 Probable cause is the same as reasonable grounds for belief of guilt. 1 Barr's State Rep. 
 234. 
 
 [2] As a public peace officer, a constable is authorized, and it his duty to make arrests, also, 
 without a warrant of a magistrate, in many cases. 
 
 In general it is the duty of a constable to arrest, without a warrant, persons committing a 
 felony, or guilty of a riot, affray, or "breach of the peace, in his presence, and to take them be- 
 fore a proper magistrate. 
 
 A constable, may, without a warrant, apprehend a person for violent and disorderly acts, 
 and threats, in his presence, which are cause for demanding of the party sureties to keep the 
 peace, or be of good behaviour. 
 
 A constable may arrest one in the act of exhibiting publicly an obscene picture, of expos- 
 ing his naked body, or of committing the like offences against public decency and morality. 
 
 When any breach of the criminal law is committed in the presence of a constable, he must 
 arrest the offender and take him before a justice of the peace. Swan's Jus. p. 414. 
 
 A constable may arrest without warrant a person accused of petit larceney, or any crime 
 punishable by imprisonment in the penitentiary, whether there is time to obtain a warrant 
 or not. In Ohio. Swan's Justice, p. 415. 
 
 The mere fact of arresting, without a warrant, when there is a direct charge made to the 
 officer by a citizen, or reasonable suspicion before his eyes, does not oblige him to continue 
 the detention of the person till he brought before a magistrate. The charge may be retract- 
 ed, or his Suspicions may vanish in the way ; and as these, in such cases, are the only grounds 
 for the arrest, so the absence of them is a sufficient reason for the release of the accused. 
 His duty is merely that- of a zealous and faithful servant of the law. 3 Eng. Cpmrn. L. Rep. 
 163 : Swan's Justice, p. 415. 
 
 A constable may without warrant arrest a person on suspicion of larceney, and justify it, 
 in an action against him, by proving that there was probable ground for believing him to be 
 guilty. 6 Binn. 318. 
 
 It would seem, that a constable may make an arrest without warrant for such a rnisdea- 
 meanor as receiving stolen goods, knowing them to have been stolen. 6 Binn. Rep. 318. 
 
 11 
 
2g l ARREST OP OFFENDER WITHOUT "WARRANT. 
 
 as above mentioned. The difference between the authority of the con- 
 stable and the private person in this respect is, that the latter is justi- 
 fied only in case it turn out that a felony was in fact committed, but 
 the constable may justify the arrest and detention, whether in fact a 
 felony was committed or not.(a) And the ordinary grounds of jus- 
 tifiable suspicion are thus enumerated by Hawkins : — First, the com- 
 mon fame of the country ; second, living a vagrant, idle, disorderly 
 life, without any visible means to support it ; third, being in company 
 with known offenders at the time the offence was committed, or at 
 other times ; fourth, being found under circumstances inducing a 
 strong presumption of guilt, as for instance, having stolen goods in his 
 possession,, and not being able to give an account of his having come 
 honestly by them, or the like ; fifth, behaving in such a way as to - 
 betray a consciousness of guilt, as by making no answer when charged 
 with the offence, or absconding or the like.(S) 
 
 [*27] {<%) *In prevention of offences. 
 
 If a private person see another on the point of committing treason or 
 felony r or doing an act which would manifestly endanger the life of 
 another, he may lay hold on him and detain him until it may be pre- 
 sumed that he has changed his purpose.(c) So may a constable. [1] 
 And by stat. 8 & 9 Vict. c. 25, relating to the destroying or damaging 
 of houses with gunpower or other explosive substances, or burning, 
 disabling, or disfiguring persons with the like, it is enacted by sect. 
 13, that it shall be lawful for any constable or peace officer, to take 
 into custody, without warrant, any person whom be shall find lying 
 or loitering in any highway, yard, or other place, during the night, 
 and whom he shall have good cause to suspect of having committed 
 or being about to commit any felony under this act, and to detain such 
 
 (a) Bechwith v. Philby, sv/pra, per lord 8 & 9 Vict. o. 25, s. 13, infra. 
 Tenterden, 0. J. (c) 2 Hawk. o. 12, s. 19. 
 
 (6) 2 Hawk. u. 12, s. 9-14 ; and see stat. 
 
 [1] A constable may arrest and detain a person, whom he sees on the point of doing an act 
 of violence, through mischief or malice, dangerous to the life or person of another, or mani- 
 festly tending to disturb the peace. So he may take up a lunatic, or madman, doing injury 
 to others, or a drunken person, behaving in a disorderly manner, to the disturbances of the 
 public peace. 
 
 Iu all cases in which, as stated under the last head, arrests may be made by private per- 
 sons, for offences and breaches of the peace, committed in their view or presonce, it may be 
 done by constables or other peace officers. , 
 
 There is a class of misdemeanors, for which, when committed in the presence of constables, 
 they are specially required by statute to make arrests : as blasphemy, profaneness, drunk- 
 enness, gambling, horse-racing. Sabbath-breaking, and the like. 
 
BT CONSTABLE. 27 
 
 person until he can be brought before a justice of the peace to be dealt 
 with according to law. 
 
 (e) By constable. 
 
 I have nearly exhausted this subject in the foregoing observations. 
 It is clear that a constable may do all that a private person can 
 legally do, without warrant, in apprehending offenders, or persons 
 about to commit crimes ; the principal difference being, that the pri- 
 vate person must deliver the party apprehended into the custody of 
 a oonstable, unless otherwise directed by statute, and the constable 
 must convey, as well those whom he apprehends, as those who are de- 
 livered to him by private persons, before a justice of the peace, there 
 to be dealt with as shall hereafter be explained, and in the meantime - 
 he must provide for their safe custody, by lodging them in a station- 
 house in cities or towns, or in a lockup-house in the country or other- 
 wise.^) 
 
 Constables may interfere to prevent an affray, in their presence, in 
 the same manner as a private person, and it is more particularly their 
 duty to do so.(6) But after the affray is over, they cannot, any more 
 than a private person, apprehend the affrayers without warrant. (c) 
 And the same as to all breaches of the peace,(rf) or any other misde- 
 meanors,^) committed out of their view.[2] 
 
 There is one peculiarity in the constable's interference, namely, that 
 he may demand the assistance of any person present, to enable him to 
 
 (a) 2 Hawk. o. 13, s. T. (d) 2 Hawk. o. 13, a. 8. 
 
 (6) Id. s. 8. (e) See Fox v. Gaimt, 3 B. & Ad. 798. 
 
 (e) Id. 
 
 [2] A police officer of the city of Boston, with all the powers of a constable, except that of 
 serving civil process, who arrests an intoxicated person, while guilty of disorderly conduct, 
 and releases him on his promise to go directly home, may lawfully retake him on his going 
 into a bar-room before he is out of the officer's sight. 9 Met. Sep. 259. 
 
 Watchmen have authority at common law to arrest and detain in custody for examination 
 before a competent magistrate, persons walking in the streets at night, whom there is rea- 
 - sonable ground to suspect of felony, though there is no proof of a felony having been actually 
 committed. While on duty, they have the same power as constables to apprehend persons 
 suspected of felony. A watchman having apprehended a party, may discharge himself from 
 liability for an escape, by delivering him to a constable, or he may himself take him before 
 a magistrate 1 Chitty's Orim. Law, p. 24. 
 
 Watchman are not only authorized to arrest for offences and acts in violation of the or- 
 dinances or by-laws of the city or borough ; but as peace officers, they have while on duty 
 the same power as constables to apprehend persons for felonies, breach of the peace, and 
 other offences against the general laws of the state. Their powers and duties are regulated 
 by the ordinances of the city or borough, or the statutes of the state. McKinney's American 
 Magistrate, 214 
 
27 — 1 AEREST OP OFFENDER 'WITHOUT -WARRANT. 
 
 execute his duty ;(a) and if such, person refuse his assistance, he may- 
 be indicted and punished as for a misdemeanor at common law.(6) 
 
 (/) By magistrates. 
 
 I have already' stated the duties of a magistrate in the case of 
 [*28] a riot. In other respects, he may do ^everything which a con- 
 stable or private person may do, in respect of apprehending 
 offenders without warrant.(c) So, he may lawfully, by word of mouth, 
 authorize any one to arrest a person, who is guilty of a felony or an 
 actual breach of the peace in his presence ;(d) and such command is a 
 good warrant without writing.(e)[l] 
 
 (g) On hue and cry. 
 
 Upon hue and cry raised or levied, a private person may arrest the 
 alleged offender,^) although no other circumstance of suspicion attach 
 to him. (h) 
 
 Hue and cry was the ancient mode of pursuing an offender from town 
 
 (g) 2 Hawk. o. 13, s. 7 ; and see R. v. (d) 2 Hawk. c. 13, s. 14; 2 Hale, 86. 
 
 Phelps et at, Car. & M. ISO. (a) 2 Hale, 86. 
 
 (&) See R. v. Brown, Car. & M. 314. (g) 2 Hawk. u. 12, s. 4. 
 
 (c) 2 Hawk. e. 13, s. 13. (h) 2 Inst. 52. 
 
 [I] An unlawful assembly may be dispersed by a magistrate whenever be finds a state of 
 tilings existing, calling for an interference in order to the preservation of the public peace, 
 He is not required to postpone his action until the unlawful assembly ripens into an actual riot. 
 For it is better to anticipate more dangerous results, by energetic intervention at the incep- 
 tion of a threatened breach of the peace, than by delay to permit the tumult to acquire such 
 strength as to demand for its suppresion those urgent measures which should be reserved 
 for great extremities. The magistrate has not only the power to arrest the offenders, and 
 bind them to their good behaviour, or imprison them if they do not offer adequate bail, but 
 he may authorize others to arrest them by a bare verbal command, without any other war- 
 rant ; and all citizens present whom he may invoke to his aid are bound promply to respond 
 to his requisition, and.support him in maintaining the peace. 1 Hawk. P. C. c. 63, s. 16 ; 
 Lamb. 113 ; Dalt. Co. ; 4 Penn. Law J. 31. A justice of the peace either present or called 
 on such an occasion, who neglects or refuses to do his utmost for the suppression of such 
 unlawful assemblies, subjects himself to indictment and conviction for a criminal misdemea- 
 nor. State v. Littlejohn, 1 Bay, 316. Where, however, as was laid down in the Lord George 
 Gordon riots by Lord Loughborough, and as has been held in this country, in cases of late 
 occurrence, (Annual Register, 1780, 217 ; 3 Penn. Law Jour. 345; 4 Ibid. 31,) an unlawful 
 assembly assumes a more dangerous form, and becomes an actual riot, particularly when life 
 or property is threatened by the insurgents, measures more decisive should be adopted. 
 Citizens may, of their own authority, lawfully endeavor to suppress the riot, and for that 
 purpose may even arm themselves ; and whatever is honestly done by them in the execu- 
 tion of that object will be supported and justified by the common law. It is the duty of 
 every citizen to make such endeavor, and when the rioters are engaged in treasonable prac- 
 tices, the law protects other persons in repelling them by force. Re&publica v. Montgomery, 
 1 Yea. 419; Wharton's Or. Law, 628, 529. 
 
ON HUB AND CRT. 28 
 
 to town, until he was taken.(a) It might be raised by any person pre- 
 sent when a felony was committed, or dangerous wound given, by 
 going to the constable of the next town, informing him of it, describing 
 the offender, and stating which way he had gone.(&) It was the duty 
 of the constable then immediately to raise his own town, and search 
 for the offender, and, upon not finding him, to send the like notice to 
 the constables of all the neighboring towns, who ought in like manner 
 to search for the offender, and also to give notice to their neighboring 
 constables, and they to the next, until the offender was taken. (c) 
 Sometimes there was a justices warrant for levying the hue and cry ; 
 but the constable might levy it without warrant. If a constable fail to 
 levy a hue and cry when he ought, or if others do not pursue it when 
 required, they are punishable upon indictment with fine or imprison- 
 ment, or both.(<2)[2] 
 
 (a) 2 Hawk. c. 12, si 5. (c) 2 Hawk. o. 12, s. 6. 
 
 (J) Id. ss. 4, 5. (d) 3 Inst. 11? ; 3 Ed. 1. c. 9. 
 
 [2] Hue and cry is. the old and common law mode of pursuing, "with horn and voice," 
 persons suspected of felony, of having inflicted a wound from whiehdeath is likely to ensue. 
 3 Inst. 116; 2 Hale, 98; 4 Bla. Com. 293, 294. This practice seems to have arisen in the 
 earliest times, (Bracton, lib. 3, ch. 1,) and was distinctly recognized in the institution of hun- 
 dreds by Alfred. It is laid down by Lord Coke, (3 Inst. 116,) that where a felony has been 
 committed, or dangerous wound given, the party grieved may resort to the constable, ac- 
 quaint h im with the circumstance, describe the offender* point out which way he is gone, 
 and demand hue and cry to be made. Upon this, it becomes the duty of the officer to raise 
 hue and cry within his district; and if the offender be not there taken, he must give imme- 
 diate notice to the next constable, and he to the next, till the delinquent be secured. This 
 power has been further confirmed by several statutes. The 3 Ed. I. u. 9, compels all per- 
 sons to arm and assist the constable on pain of severe penalties. By the 13 Ed. I., st. 2, ch. 
 1, fresh suit must be made immediately after the felon, from town to town, and from county 
 to county, which is said to be the life of this practice. 3 Inst. 117. And the statute 27 El. 
 c. 13, s. 10, enacts, that the hue and cry must be by horse as well as foot, or it will be in- 
 valid. In order to enforce this practice, which was found highly beneficial in the infancy of 
 the police, the 13 Ed. I., c. 3, makes the hundred liable to answer for the damage sustained 
 by the robbery, unless the felon is secured ; and by a more recent enactment, (8 Geo. II. c. 
 16,) the officer refusing to make hue and cry is liable to a forfeiture of 6i 
 
 At the present day, hue and cry may he raised either by the precept of a justice of the 
 peace, by a peace officer, or by any private man who is aware that a felony has been com- 
 mitted. 4 Bla. Com. 294; 2 Hale, 100; Hawk. b. 2, c. 12, s. 6. It may be raised by the 
 warrant of a justice, from his general power to apprehend. Upon constables, headboroughs, 
 and other peace officers, it is especially incumbent, because, as we have seen, they are fin- 
 able if' they neglect it, and their presence gives more weight and authority to the proceed- 
 ing. 1 Hale, 100. However, it is clear that the hue and cry may be made by private indi- 
 viduals, in the absence of the constable, and it has therefore been sometimes termed in the 
 old books, cry de pais. 2 Hale, 100; 2 Inst. 117. Nor can any inconvenience result from 
 this liberty ; for, any one making hue and cry, or causing it to be made, without due cause, 
 is liable to be punished as a wanton disturber of the peace. Hawk. b. 2, c. 1 2, s. 5 ; 2 Hale, 
 100 ; 2 Inst. 173. 
 
 The party who discovers that a felony has been committed, whether the party grieved, or 
 a third person, should either apply for the warrant of a justice, or immediately give.informa- 
 
28 1 ARREST OF OFFENDER 'WITHOUT WARRANT. 
 
 (h) When and wfvere. 
 
 An arrest -without warrant may be made at any time, even on a 
 Sunday. And it may be made anywhere. [3] 
 
 tion to the constable of the Till. The former method is always prudent when circumstances 
 will permit, but, as we haTe seen, it is by no means necessary, and if the offender be likely 
 to escape is improper from the delay it occasions. 2 Hale, 99. He should then make "a 
 full statement of all the facts within his knowledge relatiTe to the offence and the offender; 
 state his name, if known, and if otherwise, describe his person, horse, or other circumstan- 
 ces which may lead to detection. 2 Hale, 100. Should the crime, howeTer, be committed 
 in any manner, or at any time which preTents him from obtaining any of these clues to dis- 
 eoTery, he' may require the officers to search for all suspicious persons, vagrant in their dis- 
 tricts, in order that they may be examined. 2 Hale, 101, 103. He may then claim the as- 
 sistance of all the inhabitants of the vill, and all neighboring Tills, who are to pursue by 
 horse and foot, till the felon is secured, or they are liable to be punished for their neglect. 
 2 Hale, 101 ; 3 Inst. 116. And by this means, a constable who has obtained a warrant 
 against a felon, may procure him to be apprehended in a different county from that in which 
 it was granted ; by following him with hue and cry, and so, without backing the warrant, 
 cause him at once to be arrested. 2 Hale, 115. 
 
 Hue and cry being thus levied, we are now to inquire what may be done on the pursuit. 
 It is clear, that when once it is commenced, those who join will be protected, eTen though 
 it should ultimately appear that no felony has been committed ; and the reasons for this are 
 evident, because the constable cannot examine on oath as to the truth of the statement, and 
 the nature of the proceeding requires the utmost promptitude, because officers are punishable 
 if they neglect to observe it ; and because he who without cause set it on foot, is punishable 
 by fine and imprisonment, for the disturbance he has occasioned. 2 Hale, 102 ; 2 Inst. 113 ; 
 Hawk. b. 2, o. 12. And thus it is, that arrest upon hue and cry differs from arrest upon mere 
 suspicion ; in the latter ease, it is necessary to aver in justification that a crime was commit- 
 ted, and that fact may be put in issue ; whereas, in the latter ease, no such allegation is ne- 
 cessary, nor is it ever stated in pleading. 2 Hale, 101. In short, this proceeding arms all 
 persons with the same authority as a warrant gives to the party to whom it is directed ; 
 they are not answerable for the propriety of the cry itself, but only for the regularity of their 
 own conduct when acting under it. 
 
 If, therefore, hue and cry be made against a suspected person, he may be arrested and 
 taken te the common jail, though he ultimately establish his innocence, and though, in fact, 
 the erime is altogether fictitious. 2 Hale, 102. And so, where, upon a description of the 
 offender, whose name is unknown, the wrong person is apprehended by mistake, the party 
 arresting is clearly justified. 2 Hale, 103. If any of the pursuers be killed by the party fly- 
 ing, this will be murder, and if, on the other hand, the latter be killed, when he cannot oth- 
 erwise be taken, the pursuers will be protected. JacJcson's case, cited 1 East, P. C. 292 ; 2 
 Hale, 100; Fost. 211, 212. 
 
 The pursuers under hue and cry, if the party suspected is actually in a house, have an 
 unquestionable right to break open the outer door to secure him, on previous demand of ad- 
 mittance. 2 Hale, 103. They must, however, ascertain that fact, as if he be not found, 
 they will be trespassers. Id. ; 3 B. & P. 233 ; 1 Marsh. 565. But they may search all sus- 
 pected places which they can enter without forcing an outer door, whether they succeed or 
 fail. 2 Hale, 103. 
 
 Although suspicious persons neither named nor described, may be taken, it will lie on the 
 parties arresting to show that they had reasonable ground to suspect them, either from their 
 being vagrants, not rendering a good account of themselves, or other similar oircumstances, 
 for otherwise this proceeding would be more dangerous than even general warrants. 2 
 Hale, 104. 
 
 [3] An arrest may be made at any time in the day or night. Smythe, 20 1 ? ; 1 Nun. & 
 
how 28—2 
 
 (i) How. 
 
 An arrest is usually made by laying hands on the party and detain- 
 ing him. But if the officer or other person say to him " I arrest you," 
 and the party acquiesce and go with him, this will be a good arrest ;(a) 
 although it would be otherwise, if instead of submitting he had escaped.(S) 
 If the arrest be by a constable, it is sufficient for him to state merely 
 that he arrests the party in the Queen's name ;(c) but a private person, 
 it should seem, if required, must state to the party arrested the cause 
 of the arrest. [4] 
 
 If the party to be arrested be in a house, and the doors be fastened, 
 then, according to Hawkins, the doors may be broken open to arrest 
 him (after first demanding admittance and being refused,) in the follow- 
 ing cases : — First, upon a capias on an indictment ; second, where, 
 one, known to have committed treason or felony, or to have given 
 another a dangerous *wound, is pursued by a constable or pri- [*29] 
 vate person, with or without warrant ; third, where an affray is 
 made in a house, in the view or hearing of a constable, or where affrayers 
 
 (a) See Eussen v. Lucas, 1 Oar. & P. 153. (c) 1 Hale, 589. 
 
 (6) Id. 
 
 "Walsh, 102. It may be made in the night, as well as in the day time, in order to prevent 
 the escape of the party. 9 Co. 66; 1 Chit. Or. L. 49.; 1 East's P. C. 324; 3 Taunt. 14; 5 
 Bing. 354. But in this case, it is said a more especial notification of the officer's authority 
 is necessary. 1 Hale, 461. So an arrest may be made on Swnday ; for though in civil mat- 
 ters this is prohibited, yet the statute expressly excepts the cases of breach of the peace, or 
 apprehended breach of the peace, and the apprehension of persons charged with crimes and 
 misdemeanors. 1 B. S. 6T5, s. 69 ; 1 Nun. & Welsh, 100 ; Stat. 1 Will. III. ch. It, s. 1 ; 16 
 Mee. & Wels. It 2. Under a similar statute in England, it seems to have been considered 
 that a contempt of court is a breach of the peace, within the exception of the statute. Wil- 
 les, 460 ; 1 Atk. 58; 1 T. B. 265. And it has been decided that »■ person may be appre- 
 hended on Sunday on an attachment for a rescue, (Id. 459 ;) or under an escape warrant, 
 where the original arrest was in a civil case. 2 Ld. Baym. 1028. So, if the party has 
 wrongfully escaped, he may be re-taken on Sunday without a warrant. lb. ; 5 T. B.. 25. And 
 •an arrest on a criminal charge may be made in any place. Bao. Abr. Tres. (D. 3.) For no 
 place affords protection to the person who has violated the criminal law. 1 Nun. & Walsh, 
 99 ; Smythe, 20t. 
 
 [4] To constitute an arrest, the party must be actually touched by the officer, or confined 
 in a room, or submit himself, by words or actions, to be in custody. The mere giving charge 
 or causing him voluntarily to appear before a magistrate, without the person's being taken 
 into actual custody, will not amount to an arrest ; for bare words in this respect will not bo 
 of any avail. 1 Chit. Cr. L. 48 ; Davis' Just. 64 ; 1 East's P. C. 330. But no manual touch- 
 ing of the body, or actual force, is necessary, in order to constitute an arrest. It is sufficient 
 if the party is within the power of the officer, and submits to the arrest. 1 Wend. 215; 
 Roscoe's Cr. Ev. 356; 1 Carr. & Payne, 153 : By. & Moo.- 26 ; 3 Carr. & Payne, 464 ; Moo. 
 & Mai. 244 ; 6 Barn. & Cr. 528 ; 6 Moore, 111. Tet is said to be better, in all cases, to 
 touch the prisoner's person, in order to complete the arrest : taking care at the same time, 
 to use no greater force or constraint than is necessary for his safe custody : the degree of 
 which will depend upon the particular circumstances of the. case, as the character of the 
 party the nature of the offence charged, the state of the country, &c. 1 Nun. & Walsh, 203. 
 
29 ARREST OF OFFENDER "WITHOUT "WARRANT. 
 
 fly to a house and are immediately pursued by a constable ; fourth where 
 a person lawfully arrested, escapes and flies to a house : in these several 
 cases the door of the house may be broken open, to arrest the party or sup- 
 press the affray, if upon demand made for the purpose the parties within 
 refuse to open it.(a) And the same, upon a warrant on a charge or 
 suspicion of felony. (b) 
 
 So, where a private person, without warrant, broke open the door of 
 a house, and imprisoned the occupier, to prevent him from murdering 
 his wife, he was holden to be justified. (c) 
 
 And it is immaterial whether it be the party's own house, or the house 
 of a stranger, except that in the latter case the officer is justified only 
 in case the party he seeks be actually in the house at the time.(d)[l] 
 
 (a) 2 Hawk, c, 14, ss. 1-9. (c) Handcock v. Balcer^ 2 Bos. k P. 260. 
 
 \b) 2 Hale. 111. (d) 2 Hale, 11?. 
 
 [1] In general, a man's own house is regarded as his castle, which is only to be violated when 
 absolute necessity compels the disregard of smaller rights, in order to secure public benefit ; 
 and therefore, in all cases where the law is silent, and express principles do not apply, this 
 extreme violence is illegal. 3 Bla. Com. 288; 14 East, 79, 116, 17, 18, 154, 5; 5 Co. 91 ; 
 Cowp. 1. There seems some doubt as to the distinction which may exist between the power 
 of constables and private individuals in this respect ; for it is said, that the former being en- 
 joined by law, on a reasonable charge, to apprehend the party suspected, may be justified 
 in breaking open doors to apprehend him on mere suspicion of felony, and will be executed, 
 though it appear that the suspicion was groundless ; but a private individual acts at his own 
 jperil, and would, if the party were innocent, be liable to an action of trespass for breaking 
 open doors without a warrant. 2 Hale, 82, 92; 2 B. & P. 260; Dick. J. Arrest, III. But 
 when it is certain that a treason or felony has been committed, or a dangerous wound given, 
 and the offender being pursued, take refuge in his own house, either a constable, or private 
 individual, without distinction, may without any warrant break open his doors- after proper 
 demand of admittance. 1 Hale, 588, 589 ; Hawk. b. 2, c. 14, s. 7 ; r 4 Bla, C. 292 ; 2 Hale, 
 82, 3, 88, 96 ; 14 East, 157, 8 ; Barl. J. Arrests. And when an affray is made in a house, 
 in the view of hearing of a constable, he may break open the outer door in order to suppress 
 it. 2 Hale, 95; Hawk. b. 1, c. 63 ; Hawk. b. 2, c. 14; Dick. J. Arrest, III. So, in some 
 extreme cases, it has been holden lawful even for a private individual to break and enter the 
 house of another in order to prevent him from murdering another who cries out for assist- 
 ance. 2 B. & P. 260. Authors, however, differ on the point whether the same power be 
 invested in the officer or private person when felony is only suspected, and has not been com- 
 mitted within the view, of the party arresting. It is, indeed, certain that a constable may 
 break open doors, upon the positive information of another who was actually a witness to 
 the felony, (1 Hale, 589 ; 2 Hale, 92 ; Dick. J. Arrest, lit.) and one material distinction be- 
 tween the power of officers and private individuals, is, that the latter can, act only on their 
 own knowledge, while the former may proceed on the information of others. Cald 291 ; 
 Dougl. 359. We may, therefore, take it as settled, that a private person may break doors 
 after a proper demand and notice, where he is certain a felony has been- committed, and that 
 a constable may do the same upon the information of the party in whom the knowledge or 
 reasonable suspicion exists. 
 
 But it is clear, that, in the case of criminal process for a misdemeanor, it is necessary to 
 demand admittance before the breaking open an outer door, even if it be not necessary in 
 case of felony. 2 Bar. & A. 592 ; 14 East, 163. 
 
 As to how far doors may be broken open, upon suspicion offebny, Lord Coke (4 Inst. 117; 
 
how. 29—1 
 
 If the officer or other person, in endeavoring to make a legal arrest, 
 be resisted, and in opposing force to force he happen to kill the party, 
 the homicide is justifiable ;(a) and the officer or other person need not 
 retreat, as in the ordinary case of se defendendo ;(b) but if the arrest 
 ■would have been illegal, the killing -would amount to manslaugh- 
 ter.^) 
 
 So when a party may lawfully be arrested for felony, and he, know- 
 ing the cause, flies, so that he cannot be taken otherwise than by kil- 
 ling him, the constable pursuing him will be justified in killing him ; 
 or a private person will in like manner be justified, if he can prove 
 that the deceased was actually guilty of a felony ;(d) but where the ar- 
 rest is for a misdemeanor only, even a constable will not be justified in 
 killing in pursuit ; and if in such a case he kill with a deadly weapon, 
 it will be murder ; if otherwise, manslaughter ;(e) or if he fire at and 
 wound him, he may be indicted for it as for a felony under stat. 1 Vict. 
 o. 85.fo) _ 
 
 In apprehending or dispersing rioters after proclamation made, as 
 mentioned,(A) it is enacted by stat. 1 Gr. 1, st. 2, c. 5, s. 8, that if the 
 persons so unlawfully, riotously, and tumultuously assembled, or any 
 of them, shall happen to be killed or hurt, by reason tof their resisting 
 
 (a) 1 Hale, 494, 481; Fost. 318, 274. (e) 2 Hale, 217 ; Fost. 2U ; and see R. v. 
 
 (6) 2 Hale, 218. Longden, E.: & By. 228 ; R. v. Smith, 1 Russ. 
 
 (c) See Fost. 318. 459. 
 
 (d) 2 Hale, 118, 119 ; 1 East, P. 0. 298, (g) R. y. Dodson, 20 Law J. 57m. 
 299. (h) Ante. p. 25. 
 
 14 East, 155.) seems to imply that this may be done by the party originally suspecting, but 
 by no other unless by the constable in his presence. And therefore he contends that no jus- 
 tice can issue a warrant before indictment, unless the suspicion arise from himself an idea 
 which constant usage has refuted. And Lord Hale positively lays it down, that doors may 
 be broken open, without warrant, on suspicion of felony. 1 Hale, 583. This doctrine is as 
 positively denied by Foster, though his general leaning is against the protection of offenders 
 by the sanctity of private dwellings. According to him a bare suspicion will never authorize 
 an arrest, even though a felony has actually been committed. Fost. 321. And this opinion 
 is the stronger as it proceeds from one who just before had delared, that " no regard ought 
 to be paid to the houses of malefactors which where the dens of thieves and murderers." 
 This opinion is followed by Hawkins, and adopted by Mr. East: the latter author, how- 
 ever, qualifies it by observing that at least the party arresting must prove not only that 
 his suspicion was reasonable, but that the person arrested was actually guilty. 1 East P. 
 0. 322 ; Hawk. b. 2, c. 14, s. 7 • Dalt. X c. 78. 
 
 Upon the whole, therefore, it seems to be the better opinion that a private individual, in 
 order to justify breaking open doors without a warrant, must in general prove the actual guilt 
 of the party arrested, and that it will not suffice to show that a felony has actually been com- 
 mitted by another person, or that reasonable ground of suspicion existed ; but that an offi- 
 cer, acting bona fide on the positive charge of another, will be excused, and the party making 
 the accusation will alone be liable. Dougl. 358 ; Dick. Just. Arrest, III. But the breaking, 
 an outer door is, in general, so violent, obnoxious and dangerous a proceeding, that it should 
 be adopted only in extreme cases, where an immediate arrest is requisite. 
 
 12 
 
29 2- ARREST OP OFFENDER WITHOUT WARRANT. 
 
 the persons endeavoring to disperse or apprehend them, the latter shall 
 be discharged and indemnified. [2] 
 
 [2] This protection of the officer extends to civil as well as criminal cases. 1 Hale, 494 ; 
 2 id. 118. And the same as to persons acting in his aid. Post. 318. So if a private per- 
 son attempts to arrest one who commits a felony in his presence, or interferes to suppress an 
 affray, and being resisted, necessary kills the person resisting, this is also justifiable homi- 
 cide. 1 Hale, 481, 484 ; Post. 274. Still there must be an apparent necessity for the kill- 
 ing ; for if the officer or private person were to kill after the resistance had ceased, or if there 
 were no reasonable necessity for the violence used on his part, the killing would be man- 
 slaughter at least. Arch. Cr. PI. 333. Also, in order to justify an officer or private person, 
 in these cases, it is necessary that he should, at the time, be in the act of legally executing 
 a duty imposed upon him by law, and under such circumstances that if the officer or private 
 person were killed it would have been murder ; for if the circumstances of the case were 
 such that it would have been manslaughter only to kill the officer or private person, it would 
 be manslaughter at least in the officer or private person to kill the party resisting. Idem, 
 334 ; Post. 318 ; 1 Hale, 490. Therefore, if the warrant is illegal and void upon the face of 
 it, or issued with a blank in it, and the blank afterwards filled up, or issued with an insuffi- 
 cient description of the defendant, as for instance, if it were to take the son of J. S., or at- 
 tempted to be executed against C. instead of B., the officer or private person would not be 
 justifiable in killing the person resisting. Arch. Cr. PI. 330. 
 
 By the legality of the process, is to be understood only that the process, whether by writ 
 or warrant, must not be defective in the frame of it, and must issue in the ordinary course 
 of justice from a court or magistrate having jurisdiction of the case. Poster, 311 ; Roscoe's 
 Cr. Ev. 620. Therefore, though there may have been error or irregularity in the proceeding 
 previous to the issuing of the process, it will still be a protection to the officer if in executing it 
 a person is necessarily killed while resisting it ; for the officer, at his peril, is bound to pay 
 obedience to it. Id. ib ; 1 Hale, 457. So, though the warrant of a justice of the peace be 
 not in strictness lawful, as if it do not express the cause with sufficient particularity ; yet if 
 the matter be within his jurisdiction, the officer will be justified in killing those who oppose 
 him in executing it. 1 Hale, 459, 460 ; 1 East, 310. It is said, however, that this must be 
 understood of a warrant which has all the essential requisites of one. Id. ib. 
 
 It may be observed, also, that in all kinds of process, both civil and criminal, the falsity 
 of the charge contained in such process will not justify a person in resisting the execution of 
 it ; for every man is bound to submit himself to the regular course of justice ; and, therefore, 
 in the case of an escape warrant, the person executing it was held to be under the special 
 protection of the law, though the warrant had been obtained by gross imposition on the ma- 
 gistrate, and by false information as to the matters suggested in it. 1 East, 310 ; Fost. 135, 
 312. Barbour's Cr. Law, 35, 36. 
 
 In cases of felony actually committed, if the offender will not suffer himself to be arrested 
 but stands upon his own defence, or flies, so that he cannot possibly be apprehended alive 
 by those who pursue him, whether public officers or private persons, with or without a war - 
 rant, he may lawfully killed by them. Hawk. P. C. b. 1, ch. 28, § 11 ; Post. 271. In case 
 an innocent person is indicted for a felony and will not suffer himself to be arrested by the 
 officer who has a warrant for that purpose, ha may be lawfully killed by the officer if he 
 cannot otherwise be taken. Id. ib. § 12. Although, strictly speaking, before a man isxon- 
 victed of a felony, he cannot be called a felon ; yet the word " felon " was undoubtedly used 
 in the statute to designate persons charged with having committed felonies. And in cases 
 where a peace officer attempts, without a warrant, to apprehend a person on suspicion of 
 felony, and the suspected person is killed, the question will be whether the officer had reason- 
 able grounds for supposing him guilty of the charge. If it appear that he had, he should 
 be acquitted, although it turns out that the person he was attempting to arrest was, in fact, 
 innocent of the charge. Although mere . suspicion of felony will not justify a peace officer 
 in breaking an outer door to apprehend the offender, unless the officer is armed with a war- 
 
how. 29—3 
 
 On the other hand, if the constable or any person acting in his aid 
 be killed in endeavoring to execute a magistrate's warrant, — if the war- 
 rant be legal and the slayer had notice, either expressly or from cir- 
 cumstances, of the deceased being a constable, and of the intent 
 of the arrest, (a) *the law in that case implies malice, and the [*30] 
 slayer will be guilty of murder.(S) And the same, as to killing 
 any other person to whom the warrant is directed. But if the warrant 
 be bad on the face of it, as being too general, (c) or the like, the killing 
 in such a case will be manslaughter only. So, if a constable or other 
 person, without warrant, apprehend, or attempt to apprehend an offen- 
 der, in a case where by law he may do so, and be killed in so doing, 
 it will be murder ;(d) but if it happen in a case where he has no author- 
 ity by law to apprehend the party, the killing will be manslaughter 
 only.(e) So, if a gamekeeper or his assistant be killed, in attempting 
 to apprehend a poacher, if the arrest would - have been lawful, the of- 
 fence is murder ;(<?) but if the arrest would have been unlawful, the of- 
 fence would be manslaughter only.(A) 
 
 Even an assault to prevent apprehension, is punishable with impris- 
 onment, with or without hard labor, for not more that two years.(i) 
 Or if, to resist or prevent lawful apprehension, a man shoot at, or attempt 
 to shoot at the party attempting to apprehend him, or shall stab, cut 
 or wound him, it will be a felony, and he will be liable to be transport- 
 ed for life, or for not less than fifteen years, or to be imprisoned, with 
 or without hard labor for not more than three years.(&)[l] 
 
 (a) E. v. Gordon, 1 East, P. C. 350, 352 ; R. v. Phelps et al, Car. & M. 180. 
 
 R. v. Payne, Ry. & M. 378. (g) R. v. Warner et <rf., Ry. & M. 380 ; R. 
 
 (6) 1 Hale, 457 ; 1 Bast, P. C. 298. v. Edwards et al, 3 Oar. & P. 390; R. v. 
 
 (c) R. v. Hood, Ry. & M. 281. Whithorne et al, Id. 394; R. v. Pall, Ry. & 
 
 (d) 1 East, P. 0. 303 ; R. v. Ford, R. & Ry. M. 330; R. v. James Pall, Id. 333. 
 329 ; R. v. Wbolmer & Palmer, Ry. &, M. (h) R. v. Addis, 6 Car. & P. 388. 
 
 334; R. v. Hems, 7 Car. & P. 312. (i) 9 G. 4, o. 31, s. 35 ; and see 14 & 15 
 
 (e) R. v. Wm. Thompson, Ry. AM. 80; R. Vict. u. 19, s. 12. 
 
 T. Gwrvan, Ry. & M. 132.; R. v. Curran, 3 (k) 1 Vict. u. 85, e. 4. 
 
 Car. & P. 397 ; R. v. Davis, 7 Car. & P. 785 ; 
 
 rant : -yet, according to Lord Hale, the officer would be justified in killing the party, if* he 
 fly, and cannot otherwise be apprehended. 1 Hawk. P. C. ch. 28, § 12 ; Post. 320 ; 1 Hale, 
 481 ; 2 id. 72, 79, 218. But it is said that this must be understood only of arrests by officers, 
 and does not extend to arrests -by private persons of their own authority. 2 Hale, 84 ■ 1 
 Russ. on Cr. 547. It seems that a constable or other peace officer is bound to arrest a per- 
 son indicted for felony, without a warrant, and that, therefore, if it be not possible otherwise 
 to arrest him, he will be justified in killing him, although he have no warrant. See 1 East's 
 P. C. 300. 
 
 "Where a private person lends his assistance to an officer, whether commauded do to or 
 not, he is under the same protection as the officer himself. Post. 309. Barbour's Cr. Law 
 38. 
 
 [1] Such are the modes by which arrests maybe made without waiting for any legal' 
 authority from a public magistrate to sanction the proceedings. This summary oourse is 
 
30 APPREHENSION OF THE OFFENDER UNDER A "WARRANT. 
 
 SECTION II. 
 
 APPREHENSION OP THE OFFENDER UNDER A WARRANT. 
 
 (a) Warrant, in what cases and how. 
 
 Where a charge or complaint is made before a justice of the peace, 
 that a person who has committed, or is suspected to have committed 
 any treason, felony, or indictable misdemeanor, or any other indictable 
 offence whatsoever, either within the justice's jurisdiction or elsewhere, 
 is residing or being, or is suspected to reside or be within the limits of 
 such jurisdiction, — the justice may at once issue his warrant to appre- 
 hend such person, and to cause him to be brought before him or some 
 
 other justice for the same county, riding, division, liberty, city, 
 [*31] borough, or *place, to answer to the charge.(a) This warrant 
 
 may be issued on a Sunday, as well as any other day.(Z>) It 
 must be under the hand and seal of the justice issuing it ; and it may 
 be directed — either to a constable or other person by name, — or gener- 
 ally to the constable of the parish or other district within which it is 
 to be executed, without naming him,— or to such constable and all 
 other constables or peace officers, in the county or other district with- 
 in which the juctice issuing the warrant has jurisdiction, — or generally 
 to all constables or peace officers within such county or district.(c)[l] 
 
 (a) 11 & 12 Viet. c. 42, a. 1. (e) 11 k 12 Vict. 0. 42, s. 10. 
 
 (*) Id. s. 4. 
 
 necessary when there is an imminent clanger of an escape, or when, from other circum- 
 stances, the utmost promptitude is requisite. When however, the case will admit, it is more 
 prudent to obtain the authority of a magistrate, to give greater security to the parties by 
 whom the arrest is to be effected. The mode, nature, and effect, of this course of proceed- 
 ing, will next demand the reader's attention. 
 
 [1] The party who knows or suspects that an indictable offence has been committed, usually 
 goes before a justice of the peace, accompanied by any other witnesses whom he may be 
 able to procure, and gives the magistrate his information and that of his companions, stating 
 the grounds of suspicion on which his application is grounded. They are sworn, if Chris- 
 tians, on the four Evangelists; if Jews, on the Old Testament, as follows: " Vou shall true 
 answer make to such questions, as shall be demanded of you, So help you God." The 
 magistrate then interrogates the accuser, and sometimes his witnesses, and takes down the 
 substance of their replies in the following form, " The information of, &c. of, &c. who saith 
 that, &c." stating the facts sworn to. This paper is then read to the parties, who have 
 given evidence, and, if they adhere to the statement, they confirm it by their signature. 
 Upon this the justice usually issues his warrant or summons, according to the magnitude of 
 the charge, or the apparent weight of the evidence by which it is supported. 
 
 The information of the complainant alone, may be sufficient, in the exercise of the magis- 
 trate's judgment, to authorize him to proceed in the case, by issuing process therein. If in 
 reference to the creditability of the complainant, and to all the matters stated by him, there 
 
WAERANT, IN WHAT CASES AND HOW. 31 
 
 The following is the form of the 
 
 Information or Complaint for an Indictabk Offence. 
 
 ) The information and complaint of C. D., of , \yeo- 
 
 to wit: ) man,] taken this day of , in the year of our Lord, 
 
 185 — t before the undersigned, [one] of her majesty's justices of the 
 
 are, according to the under-standing of the magistrate, reasonable grounds for supposing the 
 accused to be guilty, the complaint may be entertained as the foundation, without other 
 evidence, of further action in the case, in the order hereinafter mentioned. Under such 
 circumstances, it is not requisite, in this stage of the proceedings, that any other witness for 
 the prosecution should be examined. Indeed it would seem proper, in such a state of 
 things, that they should not then be heard ; but rather that their testimony should be taken, 
 ■if necessary, afterwards, in the presence of the accused, when he has appeared, or been 
 brought before the magistrate, to answer the charge. The magistrate is to exercise his dis- 
 cretion, as to the necessity of his hearing other testimony, besides the information, on the 
 part of the prosecution, and at what time it is to be given. M'Kinney's Am. Mag. 1? 2, 173. 
 
 As to the amount of evidence which the examination should present, in order to authorize 
 the magistrate to grant his warrant, no very definite rule has been or can be laid down. 
 The rule that where there is a doubt, as to the defendant's guilt, he is entitled to the benefit 
 of it, does not apply to these preliminary examinations. It is sufficient if the testimony 
 shows a probable case of guilt on the part of the prisoner. At common law, it seems a 
 magistrate might issue his warrant upon a general oath of suspicion merely. This was on 
 the ground that the complainant was a competent judge of the matters upon which his sus- 
 picion rested. 4 Black. Com. 290. But our statute is framed so as to exclude,- in a great 
 measure, the abuses to which such a practice might lead ; and undoubtedly was designed to 
 throw the duty of judging, in this respect, entirely upon the magistrate. He should not 
 regard mere allegations of suspicion, but the grounds of the suspicion — the facts and circum- 
 stances must be laid before him ; and these should be sufficient to make it appear that a 
 crime has been actually committed, and that there is probable cause for charging the indi- 
 vidual complained of therewith. See 1 Chit. Cr. L. 33 ; 1 Hale's P. C. 682 ; 2 id. 210; 4 Black. 
 Com. 290 ; 2 Hawk, P. C. c. 13, § 18 ; Dick. Just. "Warrant, 1. And it is the duty of the 
 magistrate well to consider what is sworn to, and not to grant any warrant groundlessly or 
 maliciously, without such reasonable cause as might lead a discreet and impartial man to 
 suspect the party to be guilty. 1 Chit. Cr. L. 34; 2 Hawk. P. C. c. 13, § 18. 
 
 But when such cause is shown, he ought to be prompt and fearless in the discharge of 
 bis duty. We have known warrants refused in many instances where they ought to have 
 issued, because of some vague apprehension on the part of the magistrate that he might 
 render himself liable to a prosecution, in the event of its being ascertained that the accused 
 was innocent. It is indeed true that should he issue his warrant when there was no com- 
 plaint or information on oath whatever, and no cause of arrest, he would be punishable for 
 it. 2 T. E. 225; 1 Chit. Cr. L. 34; 2 Wils. 158; 2 Hawk. P. C. c. 13, § 18; f!omb. 359. 
 The reason is, that under such circumstances, he has no jurisdiction whatever. Where, 
 however, the magistrate has observed the preliminaries required to obtain jurisdiction, and 
 consequently where he has a right to adjudicate upon the question as to the propriety of 
 issuing the warrant, no mere error of opinion or judgment will render him liable. • He is 
 bound to decide in such case, and unless he acta corruptly, it would be against both policy 
 and justice, if the law should allow him to be punished because he did not decide rightly. 
 See 2 Stark: Ev. 427, 8 ; 2 Mod. 218, 220, 1 ; 1 Brod. & Bing. 131 ; 5 John. R. 287 ; 9 id. 
 394; 3 Caines' R. 170; 17 John. R. 145; 7 Wend. 200. Where the magistrate acts in bad 
 faith, and grants a warrant against an innocent man, upon an oath offsets and circumstances 
 affording no rational ground of suspicion whatever, he will doubtless subject himself to an 
 action. 1 Chit. Cr. L. 34; 2 Hawk. P. C. c. 13, § 18. Barb. Cr. Law, 522, 523. 
 
31 1 APPREHENSION OP OPPENDER UNDER A WARRANT. 
 
 peace, in and for the said [county] of' , who saith that [&c, staling 
 
 the offence.] 
 
 Sworn before [me] the day and year first before mentioned, at . 
 
 J.S. 
 
 This information is required to be on oath, where it is intended to 
 issue a warrant in the first instance, (a) [2] 
 
 (a) 11 & 12 Vict. o. 42, s. 8. 
 
 [2] The New York Revised Statutes do not require that there should be either a written com- 
 plaint or a written examination of the complainant and his witnesses prior to the issuing of 
 the warrant. And in South Carolina, a magistrate may commit for an offence without infor- 
 mation either on oath or in writing, if satisfied that there is reasonable ground for suspicion. 
 Statev. KeUett, 2 Bailey Rep. 289. 
 
 It is laid down, however, by several writers, that it is the duty of the magistrate, inde- 
 pendent of any statutory provision, to take all charges, of whatsoever kind or complexion 
 they may be, in writing. 1 Chit. Cr. L. 34; Lofft, 240; 2 Har. Dig. 1378; 1 Nun. & 
 Walsh, 167. This practice is recommended by a variety of considerations; among which 
 are the following : It will ensure greater system and accuracy in the subsequent proceed- 
 ings — enabling the justice, in ease the complainant or any of the witnesses are prosecuted 
 for their doings in the matter, to show distinctly what they testify to — and further, if the 
 justice himself is prosecuted, it will facilitate his defence, by enabling him to exhibit, at 
 once, an information on oath authorizing the warrant, and giving him juricdiction. See 2 
 Stark. Ev. 429, note a. ; 2 Strange, 110; 8 East's R. 113 ; 2 T. R. 225. 
 
 Where the object is to obtain a warrant against a person accused of the commission of » 
 crime, a complaint, separate and distinct from the examination, seems to be unnecessary. 
 They may be combined in the same instrument. 
 
 Where the complaint is required by statute to be in writing, that form must be observed ; 
 and this is usually directed where power is given to apprehend the offender in the first 
 instance. But, as before observed, unless it is so directed, expressly, it is not necessary the 
 complaint should be in writing. Stone's Prac. Pet. Sess. 28 ; Paley, 15, 16. But if a com- 
 plaint in writing is resorted to, being the substratum of the magistrate's jurisdiction, and in 
 the nature of an indictment, it should contain a complete statement of the offenoe ; for the 
 evidence given upon the trial can only support the original charge, but can by no means 
 extend or supply what is wanting in the complaint. Paley on Conv. 65 ; 2 Salk. 680 ; 
 Doug. 232. The complaint must also contain a direct and positive charge against the de- 
 fendant, and not merely facts amounting to a presumption of guilt ; however sufficient such 
 facts may be as prima facie evidence against him. 10 Mod. 155; Paley, 96. In a complaint 
 for feloniously taking property, the value of the property and the place where the offence arose 
 should be stated; otherwise the conviction will be erroneous. 2 Hill, 281. 
 
 The duty of the magistrate.'] In general, the first duty of the magistrate, on a com- 
 plainant offering himself, is to examine him, and his witness, if any, on oath ; and determine 
 whether there is probable cause for proceeding in the matter. 2 R. S. 706, § 2. And the 
 same course is to be pursued in proceedings under the act respecting fugitives from justice. 
 See Laws of 1839, p. 323. 
 
 It is hardly necessary to observe that the magistrate, in this preliminary stage of the 
 proceedings, should sedulously endeavor to inform himself of the true nature of the case. 
 If he entertains suspicions of the integrity of the persons sworn, his diligence should be 
 proportionably increased. Instances will arise where the application for criminal process is 
 made from motives of a reprehensible character ; in order, perhaps, to gratify revengeful 
 feelings, or to procure the conviction of some person of an infamous crime, who is likely to 
 bo a witness against tho complainant, and thus to disqualify him from giving testimony. 
 
■WARRANT, IN WHAT CASES AND HO"W. 31—2 
 
 The following is the form of the 
 
 Warrant to apprehend the Offender. 
 
 To the constable of , and to other peace officers in the said 
 
 [county] of - 
 
 "Whereas, A. B., [laborer] hath this day been charged upon oath be- 
 fore the undersigned, [one] of her majesty's justices of the peace in 
 
 and for the said county of , for that he, on , at , did [&c, 
 
 stating shortly the offence :] These are therefore to command you, in her 
 majesty's name, forthwith to apprehend the said A. B., and to bring 
 him before [rne,] or some other of her majesty's justices of the peace 
 
 The examination, in these and kindred eases, should be of the most searching character ; 
 lest the public be subjected to the expense of a groundless prosecution, and the process of 
 the law be prostituted to the purposes of fraud and oppression. 
 
 The oath should be administered to the prosecutor and his witnesses, by the magistrate, 
 previous to the commencement of the examination. 4 Dow. & Ryl. 734:. This is required 
 in order that the witness shall be under the solemn obligation of an oath while he is giving 
 his evidence. Otherwise he may inadvertently, or perhaps wilfully, state some particulars 
 erroneously in the first instance, which, when afterwards put to the test of an oath, a sense 
 of shame may prevent him from retracting. The parties should also be sworn or affirmed 
 to tell the whole truth ; as it is obvious that a witness may answer every question correctly, 
 which may have been put to him, and very properly swear to the truth of the statement so 
 taken down, as far as it goes, and yet such evidence may not contain the whole truth, and 
 the most important part of the transaction may thus remain unknown. 1 Nun & Walsh,' 
 168. 
 
 The magistrate will frequently Save much time and labor, by examining the complainant 
 and his witnesses before attempting to reduce any portion of the testimony to writing ; for 
 in this way, perhaps, he may be led to see at once that some portion of the testimony'is 
 irrelevant, or that there is no ground whatever for the complaint. 
 
 In respect to the mode of taking down the testimony, the magistrate should pursue, as 
 near as may be, the language of the witnesses. 8 Dow & Ryl. 8. The practice of taking 
 depositions, however, in the precise words of a statute creating or defining the offence, has 
 been strongly reprobated, because such can hardly ever resemble the language of the per- 
 sons examined. 6 Bing. 85. But informations of this character will, notwithstanding, pro- 
 tect the magistrate, where enough appears to give him jurisdiction, provided it be not shown 
 that he acted corruptly. Ibid. ; 2 Stark, Ev. 426, n. 1. And it is, in all cases, sufficient to 
 .reduce the substance of the testimony to writing. 
 
 When the complaint has thus been committed to writing, it should be read over by, or to, 
 the complainant, or witness, carefully and deliberately, so that he may perfectly comprehend 
 it, and have an opportunity of correcting whatever he conceives to be erroneous. And if 
 the complainant be illiterate, the magistrate should be especially careful to read and explain 
 it, or to have it read, so as to satisfy himself that it is perfectly understood by the com- 
 plainant. If this be not done the witness cannot afterwards -be convicted of perjury. 1 
 Nun & Walsh, 182. If the witness adheres to the statement in the complaint, he should 
 then be desired to sign it. If he be unable to read, or to write his name, there should be 
 subjoined, at the foot of the complaint, after it has been read over to him, " having been 
 
 first truly read by mo to the above named ." The complaint should then be signed- by 
 
 the justice on the left side, at the foot thereof. Id. 183. 
 
 If it be necessary to use the intervention of an interpreter, ho should also be sworn to 
 interpret well and faithfully,, and the jurat to the complaint modified accordingly. Id. 184, 
 Barb. Cr. Law, p. 619, 520, 521. 
 
31 3 APPREHENSION OP OFFENDER UNDER A "WARRANT. 
 
 in and for the said [county,] to answer unto the said charge, and to be 
 further dealt with according to law. 
 
 Given under my hand and seal, this day of , in the year 
 
 of our Lord , at , in the [county] aforesaid. 
 
 J. S. [l. s.] 
 
 (6) Or summons and warrant. 
 
 The justice, however, instead of issuing a warrant in the first instance, 
 may, if he think fit, issue a summons ; and if that be disobeyed, 
 
 [*32] he may then issue his warrant.(a) In the, case of a *summons, 
 it is not necessary that the information should be upon oath ; 
 
 it need not even be in writing.(5)[l] 
 
 The following is the form of a 
 
 Summons to a Person charged with an Indictable Offence. 
 
 To A. B., of , [laborer.] 
 
 Whereas you have this day been charged before the undersigned, 
 [one] of Her Majesty's justices of the peace" in and for the said [county] 
 
 of — — , for that you, on , at , [<£c, stating shortly the offence :] 
 
 These are therefore to command you, in Her Majesty's name, to be and 
 appear before me on , at o'clock in the forenoon, at , or 
 
 , (a) 11 & 12 Vict c. 42, as. 1, 9. (6) 11 & 12 Vict. c. 42, s. 8. 
 
 [2] When the offence is between party and party, and not of an aggravated nature, and 
 the supposed offender is not likely to abscond, a summons is recommended, as the prefer- 
 able process to procure his attendance, and this seems necessary, where there is no oath of 
 the offence having been committed. 2 T. R. 225; Comb. 359; 2 Barn. 34, 77, 101. But 
 where there is an accusation on oath, of an offence of a higher nature, as treason or felony, 
 it is proper to issue a warrant, in the first instance, if there appear any reasonable ground 
 for the charge. But although there be a positive charge on oath, yet if the justice sees that 
 no credit is to be given to it, he may decline issuing a warrant Dick. J. 458, 459 ; Hawk, 
 b. 2, e. 3, s. 18. Por petty assaults, though justices are authorized to issue a warrant on 
 complaint, on oath of the accuser, yet a summons is more advisable, as in many cases it is 
 found that the accusation, is frivolous, or without sufficient foundation. Dick. J. 458, 559. 
 It is always safest to issue a summons. See 2 Bing. 63. A summons should be signed by 
 the magistrate who issues it, (2 East, 361,) and may either be directed to the party himself, 
 or to a constable requiring him to summon or give notice to the party, whose attendance is 
 required. And it is usual in the summons, not only to fix the day, but a particular hour, 
 for the appearance of the suspected individual ; but the accused is bound to wait until the 
 magistrate can attend to the complaint. In genera], a summons may be granted without 
 the oath of the complaining party; but in some cases, by particular enactment, an oath is 
 absolutely requisite. If the complaint is on oath, it should be so stated, (Burn, J. Sum- 
 mons and Warrant, I.; Bac. Abr. Just, of Peace, c. 5; 2 Barnard. 34, 77, 101; Toone, 41, 
 246, 400, 449 ; 2 T. R. 225 ; sed quaere, for this is not necessary in case of warrant,) and 
 a copy of the summons should be served opon, or left at the residence of the accused, (Ibid. ;) 
 but, in a criminal prosecution against the wife, there is no occasion to summon the husband. 
 Burr. 1681. . 
 
OR SUMMONS AND WARRANT. ol 
 
 before such, other justice or justices of the peace for the same {county] 
 as may then be there, to answer to the said charge, and to be further 
 dealt with according to law. Herein fail not. 
 
 Given under my hand and seal, this day of , in the year 
 
 of our Lord • at , in the [county] aforesaid. 
 
 J. S. [L.S.J 
 
 This summons, it will be perceived, is directed to the party himself, 
 who is charged by the information. It must be served by a constable 
 or other peace officer, either by delivering it to the party personally, 
 or, if he cannot conveniently be met with, by leaving it with some per- 
 son for him at his last or most usual place of abode.(a) 
 
 If the party fail to attend at the time and place mentioned in the 
 summons, then, upon oath made of the serviee of the summons, the 
 justice may issue his warrant ;(b) or if he see any necessity for it, as if 
 he be informed that the party is likely to abscond, or the like, he may 
 issue his warrant before the day of attendance mentioned in the sum- 
 mons.^) 
 
 The following is the form of the 
 
 Warrant where the Summons is disobeyed. 
 
 To the constable of , and to all other peace officers in the 
 
 said [county] of . 
 
 Whereas on the last past, A. B. of , [laborer,] was charged 
 
 before the undersigned, [one] of Her Majesty's justices of the peace in 
 
 and for the said [county] of , for that [&c, as in the summons i] 
 
 And whereas [ /] then issued [my] summons to the said A. B., 
 commanding him, *in Her Majesty's name, to be and appear [*33] 
 
 before [me] on , at o'clock in the forenoon, at • , 
 
 or before such other justice or justices of the peace for the same 
 [county] as might then be there, to answer to the said charge, and to 
 be further dealt with according to law : and whereas the said A. B. 
 hath neglected to be or appear at the time and place appointed in and 
 by the said summons, although it hath now been proved to me upon 
 oath that the summons was duly served upon the said A. B. : These 
 are therefore to command you, in Her Majesty's name, forthwith to 
 apprehend the said A. B., and to bring him before me, or some other 
 of Her Majesty's justices of the peace in and for the said [county,] to 
 answer to the said charge, and to be further dealt with according to 
 law. 
 
 (a) 11 & 12 Vict. o. 42, s. 9. (c) 11 & 12 Vict. c. 42, s. 1. 
 
 (J) Id. 
 
 13 
 
33 APPREHENSION OF OFFENDER UNDER A WARRANT. 
 
 Given under my hand and seal, this day of , in the year 
 
 of our Lord , at , in the county aforesaid. 
 
 J. S. [L.S.][1] 
 
 [1] The warrant may be under seal, or not. At common law, it has been said a seal was 
 necessary. 4 Black. Com. 290; 2 Hawk. P. C. c. 13, a. 21; 1 Hale's P. C. 577. But such 
 does not seem to be the case. Willes' R. 411 ; Bull. N. P. 0. 83 ; 1 Chit. Cr. L. 38. In this 
 state, by the express provision of the statute, the warrant may be either with or without 
 seal. 2 R. S. 706, s. 3. 
 
 It should not be general, to apprehend all persons suspected, but should direct the officer 
 to apprehend some particular individual; otherwise it will be void. 4 Black. Com. 291; 1 
 Hale's P. C. 580 ; 1 Chit. Cr. L. 41, 42. 
 
 A general warrant to apprehend all persons suspected or guilty of a particular crime, with- 
 out naming or describing any particular person, is illegal and void for uncertainty : for it is 
 not fit that it should be left to the officer to judge of the ground of suspicion. The magis- 
 trate is to judge of this : and it is his duty to give certain and precise directions to the per- 
 son who is to execute the warrant. 1 Nun & Walsh, 190 ; 3 Burr. 1766. 
 
 The name of the person to be apprehended, should be accurately stated, if known ; and must 
 not be left in blank, to be filled up afterwards. 1 Chit. Cr. L. 39; 2 Hale's P. C. 114; Fost. 
 312. If the name inserted be not the right one, or be fictitious, merely, the arrest cannot 
 be justified, even though the person arrested be the one intended ; unless, indeed, he is 
 known as well by the name in the warrant as by his true name. 8 East, 328 ; 6 Cow. 456 ; 
 1 id. 332 ; 3 Wend. 350 ; 4 id. 555 ; 9 id. 320 ; 2 Taunt. R. 400. But if the name of the 
 party be unknown, the warrant may be issued against him by the best description the na- 
 ture of the case will allow : as — "the body of a man whose name is unknown, but whose 
 person is well known, and who is employed as the driver of cattle, wears a white hat, and 
 lias lost his right eye." 1 Chit. Cr. L. 39, 40 ; 1 Hale's P. C. 577. Tet, a warrant to appre- 
 hend " Hood, [omitting his christian name] of B. in the parish of F., by whatsoever 
 
 name he may be called or known, the son of Samuel Hood, to answer," &c. was held defec- 
 tive, as omitting the christian name, and assigning no reason for the* omission, nor giving any 
 distinguishing particulars of the individual, Rex, v. Rood, 1 1. 1 M. 281. 
 
 The warrant must recite the accusation made by the complaint.. This is required by stat- 
 ute. 2 R. S. 706, s. 3. At common law, it was deemed rather discretionary than necessary 
 to set out the accusation in the warrant, but the practice of doing so has been universally 
 recommended. See 1 Chjt. Cr. L. 41 ; 2 Hale's P. C. Ill ; 1 id. 580 ; Cro. Jao. 81 ; 2 Wa- 
 les, 158. It is stated in the marginal note to Atdhinson v. Spencer, (9 Wend. 62,) by way 
 semVU, " that in no case is it indispensable that a warrant issued by a magistrate upon a crim- 
 inal complaint, should state upon its face, the offence charged." The decision there, how- 
 ever, was made under the act of 1813, for suppressing immorality, and the section in virtue 
 of which the warrant spoken of was issued, is entirely silent respecting its form. See 2 R. 
 L. 1813, 196, s. 9. The court were consequently only called upon to declare and apply the 
 common law, which is undoubtedly as stated. But the language of the revised statutes is, 
 " the justice shall issue his warrant, &c, reciting the accusation." In all warrants, therefore, 
 issued for the apprehension of persons under that provision, it is undoubtedly the only safe 
 course ; and in the absence of authority, we venture the opinion that it is indispensable to 
 the validity of the warrant, that it should contain u, recital of the accusation, or something 
 equivalent to it. Not that the evidence given on the examination need be stated at length ; 
 but enough should appear on the face of it to inform the accused of the specific offence with 
 which he stands charged, and the place where it was committed, so that he may know what 
 preparations to make in order to meet it. See 1 Chit. Cr. L. 42 ; 2 Wils. 158. 
 
 That this is the true construction of the statute appears, moreover, we think, by a subse- 
 quent provision, which roquires, in respect to trials before courts of special sessions, that 
 after the court are organized, "the charge made against the defendant, as stated in the war- 
 
WARRANT, HOW AND WHERE EXECUTED. 33—1 
 
 (c) Warrant, how and where executed. 
 
 The arrest, as we have already seen, is usually made by actually 
 laying hands on the party, and detaining him. But if the officer or 
 
 rant of arrest or commitment, shall be distinctly read to such defendant, who shall be requir- 
 quired to plead thereto." If no charge is stated in the warrant, it would seem that the court, 
 in that case, could not require the defendant to plead, and consequently would not be able 
 to proceed. 
 
 In case the warrant is executed out of the county in which the magistrate resides, and 
 where the offender may be bailed by a magistrate other than the one who issued it, if the 
 offence be not punishable with death or imprisonment in the state prison, most clearly the 
 warrant must show the nature of the offence, and the county or place where it was commit- 
 ted. For, in determining whether the offense is "bailable, such magistrate is, by the express 
 terms of the statute, to be guided by the offence as " charged in the warrant." 2 R. S. 106, 
 s. T. And how, except by what shall appear on the face of the warrant, is he to ascertain, 
 under the next section, (Id. s. 8,) " the county where the offence shall be alleged to have 
 been committed," so as to recognize the accused accordingly? 
 
 But a warrant need not contain the facts on which the charge made is predicated. It is 
 sufficient, in this respect, if the nature of the offence be clearly specified. 1 Hill, 377. 
 
 "Where a person was convicted before a court of special sessions, on a complaint for felo- 
 niously taking property, and neither the complaint nor warrant of arrest stated the value of 
 the property, nor the place where the offence arose, it was held that the conviction was er- 
 roneous. 2 id. 281. 
 
 The warrant must be properly directed. It may be directed to the sheriff exclusively, or 
 to the constables of the county or of a particular town. So it may be directed to the sheriff, 
 and at the same time to any constable. 1 East's P. C. 320 ; 1 Chit. Cr. L. 49. A warrant 
 not directed to any particular person in office, is bad. Addis. 376. It has been decided, 
 however, in .Pennsylvania, that a warrant directed by a justice of the peace to " con- 
 stable," is well directed if "it is directed by the proper constable of the district. 6 Binn. 123. 
 
 It is usual, and perhaps in strictness, the most regular, for a justice of the peace to direct 
 his warrant to a constable instead of the sheriff; for constables are, by the common law, re- 
 garded as the proper and known officers of a justice. 1 'alk. 381. And Mr. Chitty has 
 laid it down that in England, if an act of parliament direct that a justice shall issue a war- 
 rant, and do not state to whom it shall be directed, it must be directed to the constable, and 
 not to the sheriff, unless such power be given by the act. 1 Chit. Cr. L. 38 ; 2 Ld. Raym 
 1192; 1 Salk. 381, S. C. 
 
 The warrant may, moreover, be directed to some indifferent person, by nann, who is no 
 officer; for a- justice may authorize any one to be his officer whom he pleases to make such 
 but no private person can be compelled to execute it, and hence it is better, in general, to di 
 rect it to an officer. 2 Hawk. P. C. ch. 13, s. 21 ; 1 Chit. Cr. L. 38 ; 1 Hale's P. C. 581 ; 2 id 
 110, 111; 1 Salk. 347; 3 Wend 350. 
 
 But in no case is the warrant to be directed to the party interested to execute it ; and if 
 the justice should so direct it, he would act contrary to his oath of office. 1 Nun & Walsh, 
 188. 
 
 In England, much nicety was formerly required in the direction of warrants. Until the 
 time of Geo. 4th, constables there could not act for the whole county, but were regarded as 
 mere parish officers, and were confined, in the execution of process, to the particular pre- 
 cincts for which they were respectively appointed. Hence, though a warrant might be di- 
 rected to the constables of a county, yet no constable could execute it out of his own parish. 
 And if a warrant was directed to a constable of a given parish, by.his name of office, he 
 could not execute in out of his parish. But if it were directed to him by his personal name, 
 then he took an authority co-extensive in point of territory with that of him who conferred 
 it. 1 Barn. & Cress. 288 ; 2 Dow. & Eyl..444; 1 Salk. 116; 1 Chit. Cr. L. 38; 1 Burns' J. 
 
33 — 2 APPREHENSION OP OFFENDER UNDER A -WARRANT. 
 
 other person say to him " I arrest you," and the party acquisce and go 
 ■with him, this will be a good arrest ;(a) although it would be other- 
 wise, if ; instead of submitting, he had escaped ;(b) a,nd merely showing 
 him the warrant,- and his then voluntarily accompanying the officer to 
 a magistrate, would not be in law an arrestee) If the party arrested 
 demand to see the warrant, the constable, if he be a known officer, and 
 acting within his precinct, is not in strictness bound to show it to him ; 
 but otherwise, where the arrest is by a constable out of his precinct, or 
 by a private person ;(d) and where the arrest is without warrant, it is 
 sufficient for a constable to state merely that he arrests the party in the 
 queen's name ;(e) but a private person, if required, must, it should seem, 
 state to the party the cause of the arrest. As to breaking open doors, 
 
 (a) See Bussen, v. Lucas, 1 Car. & P. 153. Rep. 211. 
 
 (&) M. (d) 2 Hawk. u. 13, B . 28. 
 
 (c) Arrowsmith v. Le Meswrier, 2 New (e) 1 Hale, 589. 
 
 105 ; 2 Ld. Raym. 1296. But in this state it is otherwise; and if a warrant be directed to 
 any constable of the county, it may be executed by a constable of any town in any part of 
 the county. So if it be directed to the constables of a particular town, they are compellable 
 to serve it in any other part of the county. For constables, under our law, can hardly be 
 said to be town officers, except as regards their tenure of office. They have the same right 
 to execute process in every part of the county as in the town in which they were chosen 
 and where they reside. In this respect, their territorial jurisdiction is cb-extensive with that 
 of ths sheriff. 6 Cowen, 641, 648 ; 9 Wend. 319, 323. ' 
 
 The warrant of a magistrate is not returnable at any particular time; and it continues in 
 force until it is fully executed and obeyed. Peake's Rep. 234. It does not state any pre- 
 cise time when the party is to be brought before the magistrate for examination. This is 
 never done in any warrant whatever. Nor is it possible to do it without manifest injury to 
 the party ; for if a distant or any period should be limited, he must remain in custody during 
 all the time between the issuing of the warrant and the day limited for its return ; whereas, 
 he is entitled to be discharged the first day, if he is innocent. Davis' Just. 27. The law has 
 fixed a time, for by statute, the warrant must be made returnable forthwith. 2 R. S. 106, s. 3. 
 The officer is therefore bound to carry the party accused before the magistrate immediately ; 
 and if he delay so to do, it is contrary to. the duties of his office. 1 Chit. Cr. L. 40 ; 8 T. R. 
 110; Fost. 143; 4 Black. Com. 291, n. 
 
 The warrant must command the officer to whom it is directed, to bring the accused before 
 the magistrate who issued it, to be dealt with according to law. 2 R. S. 106, s 3. If the 
 warrant be to obtain sureties of the peace, the command must be to bring the party before 
 the magistrate who issued it, omitting the words, to be dealt with according to law. Id. 1 04, 
 s. 3. At common law, the warrant might be general, to bring the party before any justice 
 of the peace of the county, or special, to bring him before the justice who granted it. If it 
 were general, the election of the magistrate before whom the accused, should be taken, lay 
 with the arresting officer exclusively. 1 Chit. Or. L. 39 ; 2 Hawk. P. 0. c. 13, o. 26 ; 1 Hale's 
 P. C. 082 ; 2 id. 112 ; 4 Black. Com. 291. 
 
 The warrant must not be left in blank, to be afterwards rilled up by the officer or party. 
 And if the name of the party or of the officer be inserted without authority, after the issuing 
 of the warrant, the arrest will be illegal; and the person executing it will not be protected 
 in proceeding under it. 1 Nun & Walsh, 195 ; 2 Hale, 114. But it may be filled by the 
 justice himself, after he has signed it, before he delivers it over to the officer. 8 T. R. 455 ; 
 1 East's P. C. 324, n. (a). Barb. Cr. Law, 524—527. 
 
"WARRANT, HOW AND WHERE EXECUTED. 33—3 
 
 for the purpose of making an arrest, (a) and as to the death of, or inju- 
 ry to either party, — the party arresting or arrested, — in the endeavor 
 to make or avoid the arrest.(&)[2] 
 
 (a) See ante, p. 28. (b) See ante, p. 29. 
 
 [2] As to the arrest of persons who have committed crimes in a foreign country : The 
 common law consider crimes as altogether local and cognizable and punishable exclusively 
 in the country where they are committed. Story's Conf. of Laws, 516, et seq. ; Commonwealth 
 v. Green, IT Mass. 515, 545, 546, etseq; Wolff -v. Oxholm, 6 Maule and Sel. 99; Scovilkv. 
 Oanfleld, 14 Johns. 338, 340 ; State v. Knight, Taylor, 65 ; Rutherf. Inst. B. 2, ch. 9, s. 12 ; 
 Marten's Law of Nations, B. 3, c. 3, s. 22, 23, 24, 25. And Lord Coke expressly main- 
 tains, that the sovereign is not bound to surrender up fugitive criminals from other countries, 
 who have sought a refuge in his dominions. 3 Co. Inst. 180. See also Commonwealth v. 
 Deacon, 10 Serg. & Rawle, 125 ; 3 Story on Const. 675, 676 ; Bex v. Ball, 1 Amer. Jurist, 
 297. Case of Jose Ferreira Dos Santos, 2 Brock. 493. The constitution of the United States 
 provides that " A person charged in any state with treason, felony, or other crime, who shall 
 flee from justice, and be found, in another state, shall, on demand of tho executive authority 
 of the state from which he fled, be delivered up, to be removed to the state having jurisdic- 
 tion of the crime." Const, of U. S. Art. 4, sec. 2, s. 2; 3 Story on Const. 675 — 677. See 
 State v. Howell, Charlton, 120. 
 
 It appears that jurists have expressed doubts, and the decisions of courts, both in this 
 country and in foreign countries, have been different, whether, upon principles of interna- 
 tional law, and independent of treaty or statute, any court of justice is authorized to surren- 
 der a fugitive from justice. Kent's Com. 36 ; 3 Story's Com. on the Const. 675, 676 ; Story's 
 Com. on the Conflict of Laws, 520 — 522. 
 
 The United .States have no jurisdiction in such cases, except under a treaty provision. 
 The duty of surrendering, on due demand from the foreign government, and on due prelimi- 
 nary proof of the crime charged, is part of the common law of the land, founded on the law 
 of nations, as part of that law : and the state executive is to cause that law to be executed, 
 and he is to be assisted by judicial process, if necessary. The statute of New York is deci- 
 sive evidence of the sense of that, state, and it was in every respect an expedient, just and 
 wise provision, in no way repugnant to the constitution or law of the United States, for it 
 was no "agreement or compact with a foreign power." The whole subject is a proper mat- 
 ter of state concern, under the guidance of municipal law, (stipulations in national treaties 
 always excepted,) and if there be no express statutory provision, the exercise of the power 
 must rest upon sound legal discretion, as to the nature of the crime and the sufficiency of 
 the proof. The law of nations is not sufficiently precise to dispense with the exercise of 
 that discretion. 1 Kent's Com. 37. 
 
 The subject has been a matter of agreement between the government of the United States 
 and several nations, and provision has been made for the mutual surrender of fugitive crimi- 
 nals. The following article is contained in the treaty between our government and Great 
 Britain, made at Washington, the 9th of August, 1842 : 
 
 "Art. 10. It is agreed that the United States and her British majesty shall, upon mutual requi- 
 sition by them, or their ministers, officers or authorities, respectively made, deliver up to justice 
 all persons who, being charged wish the crime of murder, or piracy, or arson, or robbery, or 
 forgery, or the utterance of forged papers, committed within the jurisdiction of either, shall 
 seek an asylum, or be found within the territories of the other; provided, that this shall only 
 be done on such evidence of criminality as, according to the law of the place where the fu- 
 gitive or person so charged shall be found, would justify his apprehension and commitment 
 for trial, if the crime or offence had been there committed ; and the respective judges and 
 other magistrates of 'tho two governments shall have power, jurisdiction and authority, upon 
 complaint made under oatb, to issue a warrant for the apprehension of the fugitive or person 
 charged, that he may be brought before such judge or other magistrate,, respectively, to the 
 
3 3 — 4 APPREHENSION OF OFFENDER UNDER A WARRANT. 
 
 If the person against whom the warrant has issued,, be not found 
 within the jurisdiction of the justice who issued it, or if he shall escape, 
 
 end that the evidence of crime may be heard and considered; and if; on such hearing, the 
 evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining 
 judge or magistrate to certify the same to the proper executive authority, that a warrant 
 may issue for the surrender of the fugitive. The expenses of such application and delivery 
 shall be borne and defrayed by the party who makes the requisition, and receives the fugi- 
 tive." 
 
 In the circuit court of the United States for the Massachusetts district, in was held by Jus- 
 tice Woodbury, that state magistrates might, but were not compellable by the United States, 
 to entertain jurisdiction of an application under the treaty of extradition with Great Britain, 
 to surrender fugitives from that nation. The British Prisoners, 1 Woodbury & Min. C. C. 
 R. 66. 
 
 The convention for the surrender of criminals, between the United States of America and 
 his majesty king of the French, concluded at Washington, the 9th of November, 1843, con- 
 tains these articles : 
 
 " Art. 1. It is agreed that the high contracting parties shall, on requisitions made in their 
 name, through the medium of their respective diplomatic agents, deliver up to justice per- 
 sons who, being accused of crimes enumerated in the next following article, committed within 
 the jurisdiction of the requiring party, shall seek an asylum or shall be found within the ter- 
 ritories of the other : Provided, that this shall be done only when the fact of the commission 
 of the crime shall be so established as that the laws of the country, in which the fugitive or 
 the person so accused shall be found, would justify his or her apprehension or commitment 
 for trial, if the crime had been there committted. 
 
 "Art. 2. Persons shall be so delivered up who shall bs charged, according to the provi- 
 sions of this convention, with any of the following crimes, to wit: murder, (comprehending 
 the crimes designated in the French penal code by the terms assassination, paricide, infanti- 
 cide, and poisoning,) or with "an attempt to commit murder, or with rape, or with forgery, 
 or with arson, or with embezzlement by public officers, when the same is punishable with 
 infamous punishment. 
 
 " Art. 3. On the part of the French government, the surrender shall be made only by au- 
 thority of the keeper of the seals, or minister of justice; and on the part of the government 
 of the United States, the surrender shall be made only by authority of the executive thereof. 
 
 "Art. 4. The expenses of any detention and delivery, effected in virtue of the preceding 
 provisions, shall be borne and defrayed by the government in whose name the requisition 
 shall have been made. 
 
 "Art. 5. The provisions of the present convention shall not be applied in any manner to 
 the crimes enumerated in the second article, committed anterior to the date thereof, nor to 
 any crime or offence of a purely political character. 
 
 "Art. 6. This convention shall continue in force until it shall be abrogated by the con- 
 tracting parties, or one of them ; but it shall not be abrogated except by mutual consent, Un- 
 less the party desiring to abrogate it shall give six months' previous notice of his intention 
 to do so. 
 
 " Additional Article. The crime of robbery, denning the same to be the felonious and for- 
 cible taking from the person of another, of goods or money to any value, by violence, or 
 putting him in fear ; and the crime of burglary, denning the same to be breaking and enter- 
 ing by night into a mansion-house of another, with intent to commit felony; and the corres- 
 ponding crimes included under the French law in the words vol. qualifie crime, not being 
 embraced in the second article of the convention of extradition, concluded between the Uni- 
 ted States of America and France, on the 9th of November, 1843 ; it is agreed by the pre- 
 sent article, between the high contracting parties, that persons charged with those crimes 
 shall be respectively delivered up, in conformity with the first article of the said convention ; 
 and the present articlo, when ratified by the parties, shall constitute a part of the said con- 
 vention, and shall have the samo force as if originally inserted in the same." 
 
WARRANT, HOW AND WHERE EXECUTED. 33—5 
 
 go into, reside, or be, or be supposed or suspected to be in any place 
 in England or "Wales, the constable, on taking the warrant to any jus- 
 tice of the peace there, and making oath as to the handwriting of the 
 justice to the warrant, the justice to whom he shall present it, will back 
 the warrant, that is, he will indorse on it an authority for the 
 constable *and all other peace officers to execute the warrant [*34] 
 within his jurisdiction. (a) [1] 
 
 (a) 11 & 12 Tict. c. 42, s. 11. 
 
 The statutes of New York give facility to the surrender of fugitives, by authorizing the 
 Governor, in his discretion, on requisition from a foreign government, to surrender up fugi- 
 tives charged with murder, forgery, larceny, or other crimes, which by the laws of the State 
 of New York are punishable with death or imprisonment in the state pri-on ; provided the 
 evidence of criminality is sufficient, by our laws, to detain the party for trial on a like charge. 
 Such a legislative provision was requisite, for the judicial power can do no more than cause 
 the fugitives to be arrested and detained, until sufficient means and opportunity have been 
 afforded, for the discharge of this duty, to the proper organ of communication with the 
 power that makes the demand. 1 Kent's Comm. 36 — 3?. 
 
 It is the law and usage of nations to deliver up offenders, charged with felony or other 
 high crimes, and who have fled from the country in which the crime was committed. In 
 New York. 4 Johns. Oh. Rep. 108. 
 
 And for that purpose the civil magistrate may commit him for a reasonable time. There- 
 fore where a person charged with having committed a felony in Canada, fled thence to New 
 York, the Chancellor held that, if sufficient evidence of the commission of the crime ap- 
 peared, he might be detained. Ibid. 
 
 A fugitive from a foreign country cannot be arrested in Pennsylvania by a magistrate on 
 a charge, by a private person, of having committed murder in such foreign country, in order 
 to afford an opportunity to the Executive of the United States to deliver him up to the 
 government of that country. Qusere, whether the Executive of the United States, or of 
 Pennsylvania, has a right to apply to a magistrate to arrest a fugitive criminal for such a 
 purpose. 10 Sergt. <fc R. 125. 
 
 In the spring of the year 1839, George Holmes, being charged with murder committed in 
 Lower Canada, fled into the State of Vermont, and the Governor-General of Canada de- 
 manded his surrender. Application was made by authority, in Vermont, to the President 
 of the United States, who declined to act, through an alleged want of power, and the case 
 came back to the Governor of Vermont ; and he decided that it was his duty to surrender 
 the fugitive. The case was afterwards, and before any actual surrender, carried up before 
 Supreme Court of that State, upon habeas corpus, and elaborately argued, and the decision 
 of the Governor affirmed. The case was taken up to the Supreme Court of the United 
 States, and the Court ordered that they had not jurisdiction of the case. 1 Kent's Comm. 
 36, in note. 
 
 But a majority of that Court having expressed the opinion that the power to surrender 
 to a foreign State did not reside in any of the States of the Union ; that it belonged to the 
 federal government, to be exercised by treaty, or otherwise, as may be deemed most for the 
 public interest in the regulation of our foreign intercourse ; the Supreme Court of Vermont 
 afterwards directed the discharge of Holmes. 14 Peters, 5*74; 1 Wheat. 0. 0. 434; Lewis' 
 Crim. Law, 260. 
 
 []] In most of the states, the practice of backing warrants is regulated by statute. 
 In Ohio, a common state warrant, authorizes the officer to whom it is directed, to pursue 
 the accused into any county within the state. 
 
 In Pennsylvania, the act of Assembly provides that an alderman or justice of the peace 
 of the city or county where the person may be, against whom a warrant may be issued, 
 
34 APPREHENSION OF OFFENDER UNDER A "WARRANT. 
 
 The following may be the form of the 
 
 Indorsement in Bacldng a Warrant. 
 
 ) Whereas proof upon oath hath this day been made before me, 
 
 to wit. ) one of her majesty's justices of the peace for the said county 
 
 of , that the name of J. S., to the within warrant subscribed, is of 
 
 the handwriting of the justice of the peace within mentioned : I do 
 therefore hereby authorize W. T., who bringeth to me this warrant, and 
 all other persons to whom this warrant was originally directed, or by 
 
 shall, upon proof being made upon oath or affirmation of the handwriting of the alderman 
 or justice granting the warrant, endorse his name thereon ; upon which the accused may 
 be apprehended and taken before the alderman or justice so endorsing, or to any other alder- 
 man or justice of the city or county where the warrant was endorsed, and, if the offence be 
 bailable, he is to bail the party, for his appearance at the next proper court to be held for 
 the city or county where the efifence was committed, and to deliver the recognizance and 
 other proceedings to the clerk of the said court ; and if the offence be not bailable, or bail 
 be not offered, then the constable is to take the accused before some alderman or justice of 
 the peace of the city or county, where the offence was committed, there to be dealt with 
 according to law. And the act provides that no action or prosecution shall be brought 
 against the alderman or justice of the peace who endorsed the warrant ; but that the justice 
 who originally granted it shall- be liable at law. See the act of Assembly, of April 16, 182T, 
 in M'Kinney's Digest, title Justice of the Peace. Pamph. Laws of Penn., for the year 1827. 
 
 In New York, warrants issued by either of the officers who are authorized by statute, (2 
 R. S. 106, § 1 ; Id. "704, § 1), to issue warrants of arrest, may be executed in any part of 
 the state ; except such as are issued by an assistant justice in New Tork, or by an alder- 
 man or justice of the peace. Warrants issued by any such assistant justice, alderman, or 
 justice cannot be executed out of the county within which they are officers, unless indorsed 
 in the following manner : 
 
 If the person against whom any warrant granted by any such alderman or justice shall 
 be issued, shall escape, or be in any other county out of the jurisdiction of such alderman 
 or justice, it shall be the duty of any justice of the peace or other officer above named, 
 within the county where such offender shall be, or shall be suspected to be, upon proof of 
 the handwriting of the magistrate issuing the warrant, to indorse his name on the same ; 
 and thereupon the person bringing the warrant, or any other officer to whom it may have 
 been directed, may arrest the offender in the county where the warrant was indorsed. Ibid. 
 §§ 4, 5. 
 
 The statute requires that the magistrate, in backing a warrant, shall merely indorse his 
 name on the same. Within the strict letter' of the statute, therefore, it does not seem neces- 
 sary that the justice should write any thing upon the warrant except his name — not even 
 his addition of justice of the peace. Upon principle, however, and in analogy to the form- 
 alities required in issuing original process, an indorsement of this nature, which is to give 
 the process new vitality, ought to show upon its face that it was made by a person having 
 authority to make it ; in order to justify the officer in executing it. And for the same rea- 
 son, as well as for the sake of convenience, and to avoid mistakes, it would doubtless be 
 advisable for the justice to write a short indorsement upon the warrant, reciting that proof 
 had been made to him on oath, that the name of the justice subscribed to the warrant is 
 the handwriting of the person issuing the same ; and authorizing the proper officers to exe- 
 cute such warrant within his county. 
 
 No magistrate is liable to any indictment, or action, for having indorsed any warrant 
 pursuant to the above provisions of the statute, although it should afterwards appear that 
 such warrant was illegally or improperly issued. 2 R. S. 101, § 6. 
 
WARRANT, HOW AND -WHERE EXECUTED. 34 — 1 
 
 whom it may lawfully be executed, and also all other constables and 
 
 other peace officers of the said [county] of -■ , to execute the same 
 
 "within the said last-mentioned county ; [and the justice, if he think fit, 
 
 may add] and to bring the said A. B., if apprehended within the 
 
 said county, before me, or some other justice or justices of the peace 
 of the same county, to be dealt with according to law. 
 
 Given under my hand, this day of , 185 — . 
 
 J. L. 
 
 In like manner, English warrants may be backed in Ireland,(a) or 
 Scotland, or the Isle of Man, (6) or in the Islands of Guernsey, Jer- 
 sey, Alderney, or Sark.(c) 
 
 In the case of search warrant, the warrant, after directing the consta- 
 ble to search for the goods in the dwelling-house, &c, of A. B., orders 
 him that if same or any part thereof be found upon such search, to 
 bring the goods so found, as also the body of the said A. B., before 
 the justice issuing the warrant, or some other justice or justices of the 
 peace for the county, to be disposed of and dealt with according to 
 law.(e) Accordingly, if the constable find the goods, he arrests the 
 party as directed. [2] 
 
 (a) 11 & 12 Tict. o. 42, s. 12. (d) 11 & 12 Vict. c. 42, s. 13 : and 14 & 
 
 (b) Id. s. 14. 15 Vict. e. 55, s. 18. 
 
 (c) Id. s. 13. (e) See 2 Arch. J. P. 445, 446. 
 
 [2] For form of search warrant, see Barb. Cr. Law, page 651. The following observa- 
 tions, though somewhat extended, seem to be authorized by the importance of the subject : 
 
 Formerly, according to Lord Coke, (4 Inst. IT 6,) such warrants were contrary to law, and 
 Lord Camden (11 State Tr. 321; Hawk. b. 2, c. 13, s. IT, n. 6) said, that they had crept 
 into the law, by imperceptible practice ; but Lord Hale clearly establishes their legality, on 
 the ground that without them, felons would frequently escape detection, (2 Hale, 113 ; 2 
 WUs. 149, 291 ; 11 Harg. State Tr. 321 ; 1 D. & R. 97 ; Burn, J. and Williams, J. Search War- 
 rant ; Dick. J. Warrant, I.) and by the statute 22 Geo. 3, c. 58, s. 2, (see also 30 Geo. 2, u. 
 24, h. 9.) it is made lawful for any one justice, of the peace, upon complaint made before him, 
 upon oath, that there is reason to suspect that stolen goods are knowingly concealed in any 
 dwelling house, or other place, by warrant under his hand and seal, to cause every such 
 place to be searched in the day-time ; and the person knowingly concealing the stolen goods, 
 or in whose custody the same shall be found, being privy thereto, shall be deemed guilty of 
 a misdemeanor, and shall be brought before any justice of the peace for the district, and 
 made amenable to answer the same by like warrant of any such justice. 
 
 But a search warrant for libels and other papers of a suspected party is illegal, (2 Wils. 
 752 ; 11 St. Tr. 313, 321); for, as observed by Lord Camden (11 State Tr. 321), the differ- 
 ence between seizing stolen goods and private papers of the party accused is apparent. In 
 the one, I am permitted to seize my own goods which are placed in the hands of a public 
 officer, till the felon's conviction shall entitle me to restitution. In the other, the party's 
 own property would be seized before, and without conviction, and he have no power to 
 reclaim the goods, even after his innocence is cleared by acquittal. 
 
 The search warrant is not to be granted without oath, made before the justice, that the 
 party complaining has probablo cause to suspect his property has been stolen, or is con- 
 cealed in such a place, and showing his reasons for such suspicion. 2 Hale. 113, 150; 2 
 
 14 
 
APPREHENSION OF OFFENDER, UNDER A WARRANT. 
 
 When the party is arrested, the constable should take him before a 
 justice of the peace, as soon as it is possible for him to do so, (a) and in 
 
 (a) See Wright & Court, 4 B. & 0. 596. 
 
 WUs. 283, 291, 2 ; 11 State Tr. 321. The oath need not positively and directly aver that 
 the property haa.been stolen. 1 D. & R. 91.-^ The wairrtmt should direct the search to be 
 made in the day-time (2 Hale, 113, 150; 22 G-. 3, c. 58, s. 1,) though it is^said that where 
 there is more than probable suspicion, the process may be executed in the night. Shaw, J. 
 Barl, J. Burn, J. Williams, J. Search Warrant. It ought to be directed to a constable or 
 other public officer, and not to a private person, though it is fit that the party complaining 
 should be present, and assisting, because he will be able to identify the property he has lost. 
 2 Hale, 150; 11 State Tr. 321. It should also command, that the goods found, together 
 with the party in whose custody they are taken, be brought before some justice* of the 
 peace, to the end that, upon further examination of the fact, the goods and the prisoner 
 may be disposed of as the law directs. 2 Hale, 150, 151. 
 
 But it is not necessary for an officer in order to justify the execution of a search warrant 
 from a magistrate having jurisdiction over the subject, to show that it was founded on a com- 
 plaint under oath, provided the warrant itself contains an allegation of the fact. Sandford 
 v. Nichols, 13 Mass. 236. 
 
 New Yoke. — A search warrant issued by a justice of the peace, reciting information on 
 oath, that goods described therein had been stolen by A. and B. and were concealed in the 
 house of C. and commanding the officer to enter the house in the day-time and search for the 
 articles stolen, and to bring them with C. or the person in whose custody the goods should 
 be found, before the justice, is a legal and valid warrant ; and the officer in executing it, if 
 the door be shut, may, after demand and refusal to open it, break open the outer or other 
 door of the house. Bell v. Clapp, 10 Johns. 263. See 2 N. T. Rev. Stat. lie. As to the 
 sufficiency and requisites of search warrants, see further in Grwmon v. Raymond, 1 Conn. 40. 
 Scmford v. Nichols, 13 Mass. 286. If a search warrant, and the complaint on which it is 
 issued on the same paper, and the things to be searched for be properly designated and 
 described in the complaint, and the warrant direct the officer to search for the things " men- 
 tioned in the above complaint," the process is legal and sufficient, without any farther desig- 
 nation or description of the things in the warrant itself. Commonwealth v. Dana, 2 Metcalf, 
 329. 
 
 The house or place where lottery tickets, &c. are believed to be concealed, is sufficiently 
 designated and described in a, search warrant, according to the provisions of Mass. Rev. 
 Stat. ch. 142, § 3, by denominating it the office of D., " and truly stating the number 
 thereof and the street, in which it is situate, although A. occupies the office with D." Com- 
 monwealth v. Dana, 2 Metcalf, 329. If the house be described as the house of a company, 
 such description will not authorize the searching of the house of an individual member of 
 the company. Sanford v. Nichols, 13 Mass. 286. And if goods be described in general 
 terms, as goods, wares, and merchandize, without any specification of their character, quality, 
 number or weight or any other circumstance tending to distinguish them, it is not such a 
 particular description as the constitution requires. Sanfwdv. NicJwh, 13 Mass. 286. 
 
 The revised statutes of New Tork, authorize a magistrate to grant a search warrant only 
 in the case of property capable of being "stolen or embezzled. 2 N. Y. Rev. .Stat. 146. 
 
 In Pennsylvania, the issuing of a warrant to search for stolen goods is recognized, and 
 the manner of disposing of goods found thereon, and supposed to be stolen, regulated, by the 
 Act of Assembly of the 23d of Sept. 1191. 3 Smith's Laws of Penn. p. 120 ; M'Kinney's 
 Digest, title " Robbery and Larcency. 1 ' 
 
 The act provides that where there is probable cause, supported by oath or affirmation, to 
 suspect that other goods, besides those described in the warrant, which may be discovered 
 on the search thereupon, are stolen, the magistrate may direct the said goods to be seized, 
 and secure the same in his own custody, unless the person in whose possession they were 
 
WARRANT, HOW AND WHERE EXECUTED. 34—3 
 
 the mean time he should keep or lodge him in safe custody.(a)[3] And 
 the same, where the arrest is by a private person under a warrant., 
 
 (a) 2 Hale, 120. 
 
 found shall give security to produce the same at ,the time of his trial ; that the magistrate 
 shall cause the same to be publicly advertised, and shall return an inventory of them into 
 the proper court ; and directs in what manner they shall be finally disposed of. The Act is 
 given at length, under the title " Robbery and Larceny," head " Pennsylvania," in Part II., 
 of M'Kinney's Am. Mag. 
 
 In Pennsylvania, by the above act of assembly, where a magistrate issues a search war- 
 rant, to apprehend a person charged with robbery, burglary or larcency, and to seize stolen 
 goods, the goods described may be searched for, and seized, " in the custody or possession 
 of such person, or in the custody or possession of any other person or persons for his use." 
 
 Independently of any act of assembly, it seems, that a search warrant will not authorize 
 the .officer to search for or seize the goods described, in the possession of another person than 
 the accused, unless such possession be for his use, or by a person who conceals them, or who 
 
 [3] When the officer has made his arrest, he is, as soon as is possible, to bring the party 
 to the jail or to the justice, according to the import of the warrant ; and if he be guilty of 
 unnecessary delay, it is a breach of duty. Fortes. 143 ; 2 Hale, 119. But if the time be 
 unseasonable, as in or near the night, whereby he cannot attend the justice, or if there 
 be danger of a rescue, or the party be ill, and unable at present to be brought, he may, as 
 the case shall require, secure him in the stocks, or in case the quality of the prisoner, or his 
 indisposition so require, detain him in a house till the next day, or until it may be reasonable 
 to bring him. 2 Hale, 119, 120, 95, 96. It is said that where an arrest has been made 
 without warrant, the constable may, in some cases, take the party's word for his appearance 
 before a magistrate. 1 Esp. Rep. 295 ; 2 New Rep. 211. And this is usually done where 
 the charge is for an assault of a trifling nature, and the defendant is of good repute, and 
 there is no probability of his absconding. But if a constable, having arrested a party under 
 a warrant, suffer him to go at large, upon his promise to come again and find sureties, it has 
 been doubted whether he can afterwards be arrested upon the same process, though it should 
 * seem, that as the public are interested in the offender's being brought to justice, there is no 
 well founded objection to such second arrest. Hawk. b. 2, c. 13, s. 9, c. 19, s. 12 ; Bac. Ab. 
 Constable, D. ; Dick. J. Arrest, III. and see Peake's Rep. 234 ; Gow's Rep. 0. P. 99 ; 2 B. 
 & C. 699 ; 4 B. & C. 596. And it is certain, that if the escape be made without the concur- 
 rence of the officer, the defendant may be retaken as often as he flies, upon fresh suit, al- 
 though he were out of view, or had reached another county or district. Dalt. J. c. 169 ; 
 Dick. J. Arrest, III. It is also clear, that if, after a departure by the permission of the con- 
 stable, the party return into his custody, he may lawfully detain him, in pursuance of his 
 original warrant. Hawk. b. 2, c. 13 ; Dick. Just. Arrest, IH. A jailer will be protected in 
 receiving a party into custody, although it appear that he was wrongfully taken under the 
 warrant, because it is the duty of a jailer to receive persons brought by a proper officer 
 without inquiring into the legality of the arrest : and if the officer has taken the wrong 
 party, he alone can -be sued. Sir T. Jones, 214; Cowp. 219; 1 T. R. 62, 63: 3 Campb. 
 420 ■ Dougl. 359, 360; Accord; 3 Campb. 35, cont. If the warrant be to bring the party 
 before the justice who issued it, then the officer is bound to bring him before the same justice, 
 but if the warrant be to bring him before any justice, then the power of election is vested in 
 the officer, and. not in the prisoner, and the former may proceed to any magistrate who has 
 jurisdiction within the county. 5 Co. 59, b ; 1 Hale, 582; 2 Hale, 112. And it is even said, 
 that where a warrant directs a person to be brought before a particular magistrate, he may 
 be taken before another, especially if nearer. Fortes. 143. When the prisoner is brought 
 before the justice, he is still considered to be ill the custody of the officer, until he has been 
 either discharged, bailed, or committed to prison. 2 Hale, 120. 
 
34 & APPREHENSION OP OFFENDER UNDER A "WARRANT. 
 
 But if the arrest be by a private person without warrant, he may de- 
 liver the party to a constable, or he may take him before a justice of 
 the peace.(a) 
 
 (a) 1 Hale, 589. 
 
 received them, knowing them to be stolen. And a warrant cannot be issued to search for, 
 and seize, goods charged to be stolen, in the possession of a person who obtained them in- 
 nocently, without any knowledge of their being stolen. A sale, however, of stolen goods 
 does not change the property in them, and they may be recovered of the purchaser by the 
 owner in a civil suit. 
 
 Where a magistrate, before committing a person for forgery, took from his person a sum 
 of money in good notes, which was not asserted to be the property of any one but the pri- 
 soner, the court on motion made an order on the magistrate to restore the money to the 
 prisoner. 4 Wash. C. 0. Rep. 710 ; Whart. Dig. title Crim. Law. 
 
 The constitution of the United States, (4th art. of the Amend.) provides, that the right of 
 the people to be secure in their persons, houses, papers, and effects, against unreasonable 
 searches and seizures, shall not be violated, and no warrant shall issue but upon probable 
 cause, supported by oath or affirmation, and particularly describing the place to be searched, 
 and the person or thing to be seized. See 3 Story on the Constit. 748, 750 ; SaiUy v. Smith, 
 11 Johns, 500; Ex parte Burford, 3 Cranch, 44). 
 
 By the laws of the United States every custom house officer, who shall have cause to sus- 
 pect the concealment of any goods subject to duties in any particular dwelling-house, build- 
 ing, or other place, shall upon application to a justice of the peace, be entitled to a warrant 
 to enter such house or place in the day time only, to search for such goods, and if such shall 
 be found, to seize and secure the Bame for trial, laws of the U. S.1799, § 68. See 7 Dane 
 Ab. 244, 245. 
 
 Massachusetts. — See Constit. Pt. 1, art. 14; Rev. Stat, pages 774, 775. 
 
 Under a warrant in the usual form, or a complaint for larceny, the officer is authorized 
 to break and enter the shop of the accused person and seize the chattel alleged to have been 
 stolen. Ban7cs v. Farwell, 21 Pick. 156. 
 
 If a precept should direct an officer to break and enter a dwelling-house, without stating 
 any sufficient cause, he could not justify such act under such a precept. Sandford v. Nichols, 
 13 Mass. 286. Still, although, the warrant, in suoh a case, by reason of its irregularity, be 
 insufficient to justify him, he will nevertheless be permitted to show in mitigation of damages, 
 that no goods were taken, except those, which were proper objects of the search, and that 
 no violence or injury was done but what was necessary to obtain possession of the goods. 
 Sandford v. Nichols, 13 Mass. 286. 
 
 Trespass will not lie against a 'party, who has procured a search warrant to search for 
 stolen goods, if the warrant be duly issued and regularly executed. JBeaiy v. Perkins, 6 
 Wendell, 382. But it seems, that case will lie if the party procuring the warrant has no 
 ground for his proceedings and is actuated by malicious motives. Beaty v. Perkins, 6 Wen- 
 dell, 382. See Plvmmer v. Dennett, 6 Greenl. 421 ; Jjuddington v. Peck, 2 Conn. 700 ; Bell 
 v. Cla/pp, 10 John. 263 ; Eayden v. Shed, 11 Mass. 500; Owens v. Starr, 2 Litt. 234; Tanner 
 v. Wallcer, 3 Gill & John. 377 ; M'Bugh v. Pundt, 1 Bailey, 441 ; Watson v. Watson, 9 Conn. 
 141; Morris v. Scott, 21 Wendell, 281. 
 
 As general warrants, to arrest all persons suspected or guilty of a particular crime, with- 
 out naming or describing the particular person to be arrested, are illegal, so also general 
 warrants to search all suspected places for stolen goods, are illegal; and even the officer act- 
 ing under color of their authority will not be justified in executing them. 1 Nun & Walsh, 
 255. Such warrants are held to be illegal, at common law, (and much more so, under the 
 statute,) because it would be extremely dangerous to leave it to the discretion of a common 
 officer to arrest what persons, or search what houses, he might think fit. The warrant must 
 therefore specify the place to be searched, as well as the person to be anprehended, unless it 
 
- 'WARRANT, HOW AND- WHERE EXECUTED. 34-^5 
 
 And the party, arrested should not be treated with any Unnecessary 
 harshness, beyond what is actually necessary for his safe custody ; and 
 
 be founded upon some statute which authorizes a different form. 1 Nun & Walsh, 255 ; 
 
 2 Hale 150 ; 2 Hawk. eh. 13, §§ 10, 17. 
 
 In excuting a search warrant the officer must be careful strictly to pursue its directions. 
 As the warrant should distinctly specify the goods to be seized, the officer ought not to take , 
 any goods but those specified. Where therefore a warrant was granted expressly to seize 
 stolen sugar, and the officer seized tea, he was held to have exceeded his authority, and to 
 be liable to the party aggrieved, for a trespass. 2 Bos. & Pul. 158 ; 3 Bsp. Rep. 96. 
 So also, where the constable, having a warrant to search for specific articles. alleged to 
 have been stolen, found and took away those and certain others supposed to be also 
 stolen, but not mentioned in the warrant, and not likely to be of use in substantiating 
 the charge of stealing the goods that were specified, it was held -that the constable was 
 a trespasser. Grozier v. Cundy, 9 Dow. & Ry. 224; 6 Barn. & Cress. 332. In this ease, 
 however, Abbot, Ch. J. said, " If those articles had been likely to furnish evidence of" 
 the idenity of the articles stolen, and mentioned in the warrant, there might have been rea- 
 sonable ground for seizing them, although not specified in the warrant." And he added that 
 he expressed himself thus, to prevent the supposition that a constable seizing articles not 
 mentioned in the warrant, is necessarily a trespasser. 6 Barn. & Cress. 333. So also the 
 houses or places to be searched must be specified with sufficient certainty ; and a warrant 
 directing a search in a particular house will not justify a search in another. 1 Nun & Walsh, 
 258 ; 2 Hale, 150 ; 2 Hawk. ch. 13, §§ 10, IT. 
 
 If admission be refused, after the usual demand, and notification of hia business, by the 
 officer or person executing the warrant, the outer door of the house may be broken open ; 
 and so may boxes, after the keys have been demanded and refused. Ibid. 2 Hale, 151; 
 
 3 Bos. & Pul. 258. And though the goods sought be not found there, the officer will not be 
 responsible if he has acted duly in obedience to the warrant. 3 Esp. Rep. 135 ; 2 Bos. & 
 Pul._ 160 ; 1 T. R. 535 ; 1 Chit. Cr. L. 57, 66. 
 
 ^It is to be observed that in this, as in all other cases in which doors may be broken open, there 
 should be a previous notification of the business, accompanied by a demand to enter, on the 
 one hand, and a refusal, on the other, before the officer' proceeds to that extremity. 1 Nun 
 & Walsh, 205 ; Post 320 ; 2 Hale, 193 ; 1 Russ. Cr. L. 519. But no precise form of words 
 is required to be used in giving notice. It is sufficient if the party be informed, by the offi- 
 cer, of his business and authority, and apprised that he comes not as a trespasser, but claim- 
 ing to act under a proper authority. Post. 137. 
 
 The constable is to keep the search warrant in his possession ; and where officers with a 
 search warrant, at the desire of the party whose premises were searched, handed it to him for 
 perusal, and he refused to return it, it was held that they had » right to take it from him, 
 and even to coerce his person to obtain possession of it, provided they did not use unnecessary 
 violence. 3 Car. &P. 31. 
 
 If, on bringing the goods, and the person in whose custody they were found, before the 
 justice, it appears that the goods were not stolen, they are to be restored to the possessor. 1 
 Nun & Walsh, 260. If it appears that they were stolen, they are to be delivered by the justice 
 to the owner, on his paying the expenses. 2 R. S. 74, a. 32. 
 
 The party who had the custody of the goods is to be 'discharged if they were not stolen. 
 If they were stolen, not by him, but by another person, who sold or delivered them to him, 
 and it appears that he was ignorant of the mode in which they were procured, he may be 
 discharged, but bound over to give evidence as a witness against the person suspected of 
 having stolen them. If it appears that he knew them to be stolen, then he should be either 
 committed as for a felony, if the original offence of stealing or taking such goods appears to 
 have been a felony, (2 Hale, 151, 152 ;) or bailed, and bound over to answer the charge if 
 the case should so require ; and so if the original offence were a misdemeanor ; or proceeded 
 against summarily, if the original offence be punishable upon summary conviction. 1 Nun. 
 & Walsh, 261. 
 
34 — 6 APPREHENSION OP OFFENDER UNDER A "WARRANT. 
 
 therefore it has been holden, that a constable has no right to handcuff 
 a person whom he has apprehended on a suspicion of felony, 
 
 [*35] unless he have attempted to escape, or it *be necessary to pre- 
 vent him from escaping.(a)[l] 
 
 (d) Warrant for offences at sea or abroad. 
 
 In all cases of "indictable crimes or offences of any kind or nature 
 whatsoever, committed on the high, seas, or in any creek, haven, or 
 other place in which the Admiralty of England have or claim to have 
 jurisdiction, — and in all cases of crimes or offences committed on land 
 beyond the seas, for which an indictment may legally be preferred in 
 any place within England or WalesJ" any one or more of Her Majes- 
 ty's justices of the peace for the county, &c, in which the offender shall 
 reside or be, or shall be supposed or suspected to reside or be, may is- 
 sue a warrant to apprehend him.(5) The warrant is the same as the 
 form,(c) except that in describing an offence upon the high seas, the 
 warrant states it to have been committed " on the- high seas, out of the 
 body of any county of this realm, and within the jurisdiction of the Admir- 
 alty of England;" and in describing an offence committed abroad, for 
 which the offenders may be indicted in this country, the warrant states 
 it to have been committed "on land out of the United Kingdom, to wit, 
 
 at , in the Kingdom of ," or " at — . — , in the East Indies,' 1 '' or 
 
 " in the island of , in the West Indies," as the case may be.(cZ) The 
 
 warrant is executed as in ordinary cases. 
 
 (a) Wright v. Court, supra. (c) Ante, p. 31. 
 
 (6) 11 & 12 Vict. o. 42, s. 2. (d) Id. sohed. E. 
 
 [1] The prisoner, or person accused, should not be subjected to unnecessary persona! re- 
 straint. He is to be in the charge of officer or officers, who made the arrest ; but while his 
 escape is prevented, and his custody secured, he is to be free to speak and act in all matters 
 relative to his answer and defence. Torture, or force of any kind, applied to the person of 
 a defendant, for the purpose of extorting or inducing a confession, is abhorrent to the law. 
 
 The magistrate may order that the defendant's person or clothes, or trunk, be searched for 
 the goods alleged to be stolen ; or for coin, bank notes, papers, and the like, charged to have 
 been forged or counterfeited by him ; and such goods or articles thus found, may be taken 
 from him and kept by the magistrate to be used in evidence on the trial in court; and sub- 
 sequently disposed of as the court may direct. Similar search may be made for weapons or 
 instruments by which a murder, manslaughter, or aggravated assault and battery was com- 
 mitted ; or for implements or utensils by which a burglary, robbery, forgery, or other offence 
 was perpetrated. It seems that search may thus be made for any articles or things con- 
 nected with the commission of the offence charged, and furnishing evidence of it. 
 
 If a constable has taken possession of the property found on the person of the prisoner, 
 the court, ou application, will order to be restored to him that portion of it which is not 
 required as means of proof at the trial, or which does not fairly appear to be the produce 
 of the crime with which he stands charged. 2 Taylor'on Ev. p. 812 ; M'Kinney's Am. Mag. 
 p. 245. 
 
TAKING THE DEPOSITIONS. 35 
 
 SECTION" III. 
 
 THE EXAMINATION AND COMMITTMENT, &C.[2] 
 
 1. In cases where the arrest is in the same county, &c, where the offence 
 
 was committed. 
 
 (a) Taking the depositions. 
 
 By stat. 11 & 12 Vict. c. 42, s. 17, in all cases where any person 
 shall appear or be brought before any justice of the peace, charged 
 with any indictable offence, whether committed in England or Wales, 
 or upon the high seas, or on land beyond the sea, or whether such per- 
 son appear voluntarily upon summons, or have been apprehended with 
 or without warrant, or be in custody for the same or any other offence, 
 ■ — such justice, before he shall commit such accused person for trial, or 
 before he shall admit him to bail, shall, in the presence of such accused 
 person (who shall be at liberty to put questions to any witness produced 
 against him,) take the statement on oath or affirmation of those who 
 shall know the facts and circumstances of the case, and shall put the 
 same into writing; and such depositions shall be read over to 
 and signed by the witness, and shall be signed also by *the jus- [*36] 
 tice ; and before each witness is examined, the justice shall ad- 
 minister to him the usual oath or affirmation. [1] 
 
 [2] There are statutes in most of the states, for , the examination and commitment ' of. 
 prisoners by magistrates. See N. T. Rev. Stat, part IV., c. 2, title 2, s. 14, 15, 16, 26 ; Laws 
 of New Jersey, Elmer's ed., p. 450 ; Statutes of Ohio, 35 V. stat. 87, s. 1 ; Laws of Michigan 
 Territory, p. 215 ; Laws of Tennessee, Carr. & Nich. Dig. p. 426 ; North Carolina Eev. Stat. c. 
 35, s. 1 ; Laws of Mississippi, Alden & Van Hosen's Dig., c. 70, s. 5, p. 532 ; Laws of Alabama, 
 Toulman's Dig., tit. 17, c. 3, s. 2, p. 219 ; Laws of Delaware, Eev. Code of 1829, p. 63 ; Laws 
 of South Carolina, Brevard's ed., vol. 1, p. 460 ; Laws of Missouri, Revision.of 1835, p. 476 ; 
 Massachusetts Rev. Stat. c. 85, s. 25. 
 
 [1] When the person accused and the witnesses to be examined are duly brought before the 
 magistrate, and everything is in readiness for proceeding, the magistrate is to examine the 
 complainant and the witnesses produced in support of the prosecution, on oath, • in the 
 presence of the prisoner, in regard to the offence charged, and in regard to any other mat- 
 ters connected with such charge, which such magistrate may deem pertinent. 1 Nun & 
 Walsh, 305 ; 3 Hill, 339. 
 
 There is no law requiring these examinations to be public. The witnesses must be exam- 
 ined in the presence of the prisoner, and he has a right to have the assistance of counsel ; 
 but whenever the magistrate thinks it expedient he may doubtless exclude spectators from 
 the room. For in conducting these examinations he acts ministerially, and not judicially. 
 Id. 76, 77, 302. It may sometimes b& necessary, in order to prevent the imprudent disclosure 
 of evidence, or for other reasons, to conduct the proceedings in private ; as in the instance ot 
 offences committed by numbers in conjunction,, when it is expedient to examine each sep- 
 arately, "it may be equally expedient that no one of the confederates shall be informed of 
 
36 THE EXAMINATION AND COMMITMENT, &o. 
 
 The following may be the form of the 
 
 Depositions. 
 
 ■ ( The examination of C. D. of [farmer] and E. 1\ 
 
 to wit. J of [laborer,] taken on [oath] this day of , in 
 
 what has been disclosed during the examination of any other, which object might be frus- 
 trated if a stranger had a right to be present, who might convey to the rest information of 
 what passed. 1 Dow. & Ey. 118, 187 ; 1 Barn. &Cress. 37 ; 2 D. & E. 86. 
 
 If the original complaint and evidence taken before the warrant was issued, contain a 
 complete case, it is the practice, in England, for the magistrate after re-swearing the accuser 
 and witnesses, to read over their former depositions, in their presence and that of the pris- 
 oner, and then to state to the latter that he is at liberty to ask the prosecutor and witnesses 
 any questions respecting the charge against him ; and if he declines so doing, the exami- 
 nations are not again gone over, but a fresh jurat is made to them ; and this even before a 
 fresh magistrate. The papers are then to be signed by the parties deposing and by the 
 justice by whom they are taken. 1 Chit. Cr. Law, 80 ; 1 Leach, 458 ; 2 id. 854. 
 
 A fresh jurat is necessary, though nothing additional be elicited from the witnesses, by 
 the prisoner's questions, or though the prisoner declines to examine them, in order that the 
 additional averments of the identity of the prisoner, and that the complaint has been sworn 
 to in his presence and hearing, shall be prefixed or subjoined. 1 Nun & Walsh, 305. 
 
 The complainant and his witnesses are to be sworn or re-sworn, and their evidence given 
 in the presence of the accused, in order that he may have the advantage of cross-examining 
 them, and of testing their credit or contradicting their testimony. Id. 306 ; 2 Leach, 561 ; 
 2 Euss. Cr. L. 660. And if any part of the deposition has been taken in the absence of the 
 prisoner, it will not be sufficient merely to read over such part in the presence of the pris- 
 oner and the witness ; but it is also necessary that the witness shall be re-sworn to the 
 truth of that statement, in the prisoner's presence, and an opportunity given to the latter of 
 cross-examining him upon oath ; otherwise such deposition will not afterwards be admissible 
 in evidence. Ibid. ; Phil. Ev. 569; 2 Euss. Cr. L. 660 ; 3 Hill, 289. 
 
 Before the statements of the prosecutor and his witnesses are reduced to writing, it is 
 advisable for the magistrate to hear their narrative in the common way of relating events ; 
 by which means he will be put in possession of all the circumstances of the case, and will 
 often be enabled to discover, by the manner of the parties, whether they are speaking truth 
 or combining in the assertion of falsehood. Dick. J. Examination. Swearing witnesses 
 after examination taken, is improper and censurable. 4Dowl. &Eyl. 734; 3 Hill, 289. The 
 informant and his witnesses are to be sworn, in one of the methods pointed out by the 
 statute. 2 E. S. 407, 408. An oath in some form or other- is absolutely necessary, or the 
 examinations of the informant and his witnesses can not, under any circumstances, be 
 received in evidence. 1 Chit. Cr. L. 78. And if a magistrate were to commit, without an 
 oath made before him, he would be liable, to an action if the prisoner were acquitted. 1 
 Hale's P. C. 586 ; Dalt. J. c. 164, § 8 ; 1 Leach, 202, 309. 
 
 The next duty of the magistrate is to reduce the examination of each of the deponents, 
 into writing, in a plain and intelligible manner, and as nearly as possible in the language in 
 which the first narration was delivered. 1 Leach, 202, 309 ; Dick. J. Examination, III ; 3 
 Hill, 289. All the facts and circumstances should be inserted which are necessary to prove 
 the felony ; and the corpus delicti should appear on the face of the depositions ; for if this 
 be properly done, though the commitment should be informal, the prisoner will not be dis- 
 charged on the ground of the defect in the mittimus. 1 Chit. Cr. L. 79 ; 3 East's E. 157. 
 
 It is absolutely necessary that the testimony of the accuser and his witnesses should be 
 taken in writing, or it will be of no effect. Id. ib. ; 1 Leach, 202, 309 ; Eoscoe's Cr. Ev. 52 ; 
 1 Moo. C. C. 338 ; 8 "Wend. 598. 
 
 All this must be done in the presence of the party accused, in order that he may have the 
 
REMAND. 36—1 
 
 the year of our Lord , at , in the [county] aforesaid, before 
 
 the undersigned, [one] of Her Majesty's justices of the peace for the 
 said [county,] in the presence and hearing of A. B., who is charged this 
 day before [me,] for that he the said A. B. on , at [&c. describ- 
 ing the offence as in a warrant of commitment] 
 
 This deponent C. D., on his [oath,] saith as follows : [&c. stating the 
 deposition of the ivitness as nearly as possible in the words he uses. When 
 his deposition is complete hi him sign it.] 
 
 And this deponent B. F., upon his oath, saith as follows, [&c] 
 The above depositions of 0. D. and E. P. were taken and [sworn] 
 
 before me at , on the day and year first above mentioned. 
 
 J. S. 
 
 (b) Remand. 
 
 If, from the absence of witnesses, or from any other reasonable cause, 
 it shall become necessary or advisable to defer the examination or fur- 
 ther examination of the witnesses for any time, the justice before whom 
 the accused shall appear or be brought, may by his warrant, from time 
 to time remand the party accused for such time as by such justice in his 
 discretion shall be deemed reasonable,, not exceeding eight clear days, 
 to the common jail or house of correction, or other prison, lock-up 
 house or place of security in the county, riding, division, liberty, city, 
 borough, or place for which such justice shall then be acting; or if the 
 remand be for a time not exceeding three clear days, it shall be lawful 
 for the j ustice verbally to order the constable or other person in whose 
 custody such party accused may then be, or any other constable or per- 
 son to be named by the said justice in that behalf, to continue to keep 
 such party accused in his custody, and to bring him before the same or 
 such other justice or justices as shall be there acting at the time ap- 
 
 advantage of cross-examining the witnesses, and contradicting their testimony, or the ex- 
 aminations cannot be received in evidence as if taken in pursuance of the statute. 1 Leach, 
 202, 309, 500, 503 ; 5 Mod. 263, 164. 
 
 The statute does not confine the magistrate, in the examination, to questions respecting 
 the offence charged; but he may examine the complainant and his witnesses "in regard to 
 any other matters connected with such charge, which such magistrate may deem pertinent." 
 It is desirable, on many accounts, that the examination of the prosecutor and* his witnesses 
 should he of the most searching character ; and as the language of the statute is broad 
 enough to give the magistrate ample authority, he ought to continue his inquiries as long as 
 anything of importance can be elicited from the witnesses respecting the guilt of the pris- 
 oner, or which may tend to implicate accomplices, or others not yet arrested. This is also 
 important, in order that the witnesses may be tied down to their first narration, and not be 
 left open to those impressions either of pity or revenge, which may affect them between the 
 examination and trial of the accused. 1 Chit. Cr. L 19. 
 
 The magistrate is not to take and certify merely the testimony adduced in support of the 
 charge, but he ought also to return the evidence which tends in favor of the prisoner. Dalt. 
 J. c. 165. See Waterman's Criminal Law, tit. Examination and Commitment. 
 
 15 
 
36 — 2 THE EXAMINATION AND COMMITMENT, Ac. 
 
 pointed for continuing such examination : it is provided, however, that 
 the justice may order the accused to be brought before him at any time 
 before the expiration of the time for which such accused party 
 [*37] shall be so remanded, and the jailer or officer in whose Custo- 
 dy he shall then be, shall duly obey such order.(a)[l] 
 
 (o)ll*12 Vict. c. 42, a. 21. 
 
 [1] It seems to have been formerly supposed that the law intends three days to be sufficient 
 for the examination, and that a magistrate could not justify the detainer of a party sixteen 
 or twenty days for that purpose. See Cro. Eliz. 829 ; 1 Hale, 585, 586 ; 2 id. 120 ; Hawk. 
 b. 2. ch. 16, § 12. But the true and proper course of duty, in these cases, appears to be 
 that pointed out by Mr. Chitty, viz. that the time for the full investigation of the case and 
 final decision of the magistrate, should depend upon the circumstances of each case, and 
 that, as a general rule, he ought not to be restricted to any particular time. For either the 
 prisoner or the accuser may be unable to bring forward his evidence immediately ; and the 
 compelling of the magistrate to discharge or commit within a particular time, might be pre- 
 judicial to the purposes of justice. 1 Chit. Cr. L. 13 ; 5 Man. & Ryl. 58, per Bailey, J. "Not- 
 withstanding the ancient opinions to the contrary, it is said to be the present practice in 
 some of the best regulated police offices in England, to detain prisoners much more than 
 twenty days between the time of their being first brought before a justice and their com- 
 mitment for trial, and to bring them up for examination on several different days during the 
 interval. Id. ib. ; Dick. J. Examination, III. ; 3 Dow's R. 160, 183, 186. 
 
 But it has been decided recently that a warrant of commitment for re-examination for an 
 unreasonable time, as for fourteen days, is wholly void, and that trespass lies against the 
 committing magistrate though he acted without any indirect or improper motive. 5 Man. 
 & Kyi. 53; 10 Barn. & Cr. 28, S. C. The question what is a reasonable time, is a mixed 
 question of law and fact, depending upon the circumstances of the case ; and the judgment 
 of the committing magistrate is not conclusive of that question. Id. 59, per Bayley, J. It 
 will be for the jury, if an action is brought against the magistrate, to say what were the 
 facts, and the judge will direct them, upon those facts, whether the time was reasonable or 
 not, as matter of law. What is reasonable, does not rest upon the discretion of the magis- 
 trate. There may be cases where three days might not be a reasonable time, and yet there 
 might be cases in which three months might be reasonable. It must depend on the proba- 
 bility of obtaining further evidence. If a material witness had gone on a voyage, the com- 
 mitment might be for a longer time than if all the witnesses were on the spot. 4 Car. & 
 Payne, 134, and note a; 5 Man. & Ryl. 60, per Parke, J. The reason of the magistrate's 
 liability in case he commit the party for too long a period is, that as it is his duty to commit 
 only for a reasonable time, if he commits for an unreasonable time, he thereby does an act 
 which he is not authorized by law to do, and the commitment is, therefore, wholly void. 10 
 Barn. & Cress. 38. Fifteen days is an unreasonable time, unless there be circumstances to 
 account for it. And these circumstances it will be incumbent on the magistrate to show. 
 The fact that a letter addressed to the prisoner, (but which was intercepted and was never 
 in his hands,) mentioned the prisoner as a party in the v felony, and stated that the writer of 
 it would write again in a fortnight, was held not sufficient to warrant such a commitment. 
 4 Car. & Payne, 134. 
 
 As to the manner in which the prisoner is to be detained and kept for examination, it 
 was formerly held that a magistrate ought not to detain such a prisoner in his own house, 
 but should send him to the common jail of the county ; and the reason given for this is, that 
 otherwise, when the justices come to deliver the jail, he is not in the jail, and cannot be 
 delivered, and, therefore, may be detained longer than is reasonable. Cro. Eliz. 830. This 
 reason seems to be unsatisfactory; for it is to be presumed that the magistrate will 
 complete the examination as soon as tlio circumstances of the case, and his duty,;will per- 
 
REMAND. 37 
 
 The following may be the form of the 
 
 Warrant remanding a Prisoner. 
 
 To the constable of and to the [keeper of the house of correction] 
 
 at , in the said [county] of . 
 
 Whereas A. B. was this day charged before the undersigned, [one] 
 of Her Majesty's justices of the peace in and for the said [county] of 
 
 , for that [&c, as in the warrant to apprehend ;] and it appears to 
 
 me to be necessary to remand the said A. B. : These are therefore to 
 command you the said constable, in Her Majesty's name, forthwith to 
 
 convey the said A. B. to the [house of correction] at , in the said 
 
 [county,] and there deliver him to the keeper thereof, together with this 
 precept ; and I hereby command you the said keeper to receive the 
 said A. B. into your custody in the said house of correction, and there 
 
 safely keep him until the - — - day of instant, when I hereby 
 
 command you to have him at , at o'clock in the forenoon of 
 
 the same day, before me or before such other justice or justices of the 
 peace for the said [county] as may then be there, to answer further to 
 the said charge, and to be further dealt with according to law, unless 
 you shall be otherwise ordered in the meantime. 
 
 Given under my hand and seal, this day of ■, in the year 
 
 of our Lord , at , in the [county] aforesaid. 
 
 J. S. [L. s.] 
 
 mit. If this be done before the justices come to deliver the jail, and the justice orders the 
 prisoner to be committed for trial, he will, in that case, as a matter of course, commit him 
 to the county jail, where the justices who come to deliver it, will find him. If the exami- 
 nation cannot be completed before the justices come for that purpose, the magistrate should 
 not be compelled to proceed in the examination, on that account, because his duty and the 
 circumstances of the prisoner require it. And no other inconvenience can result from allow- 
 ing the magistrate a reasonable time to complete his examination than that the prisoner will 
 be held to appear and answer, at a subsequent term of the court, in case the magistrate 
 finally decides not to discharge him. And there may be cases in which a magistrate would be 
 extremely unwilling to commit a prisoner to the county jail during the interval of his exam- 
 ination, when he might be kept in safe custody, either in his own house or elsewhere. See 
 Davis' Just. 57. It is probably for these reasons that Lord Hale has laid down a different 
 rule, viz. that because it may be unreasonable to take these examinations presently, or pos- 
 sibly it may take longer time, the prisoner may be continued in the custody of the officer, 
 or may be detained in the justice's house, or committed to some near safe place of custody, 
 till the examination can be taken. 2 Hale's P. C. 120. 
 
 When the examination takes place near the place where the jail is situated, it is conve- 
 nient as well as proper, to commit the prisoner to jail by a written warrant. But when the 
 jail is at an inconvenient distance from the place of examination, the prisoner may be or- 
 dered into and kept in the custody of the officer, in- any other safe and convenient plaoe. 
 Davis' Just. 58. 
 
 When a prisoner has been remanded for further examination, the proceedings, on his be- 
 ing again brought up, should be commenced by reading over all the depositions and exami- 
 nations before taken, and the additional evidence be then gone into, with the same formali- 
 ties. 1 Nun & "Walsh, 325 ; Stone's Pet. Sess. 208.. 
 
37 1 THE EXAMINATION AND COMMITMENT, &c. 
 
 Or, instead of detaining the accused party in custody during the pe- 
 riod for which he -will be so remanded, any one justice of the peace be- 
 fore whom such accused party shall so appear or be brought as afore- 
 said may discharge him, upon his entering into a recognizance, with or 
 without a surety or sureties, at the discretion of such justice, condi- 
 tioned for his appearance at the time and place appointed for the con- 
 tinuance of such examination ; and if such accused party shall not 
 afterwards appear at the time and place mentioned in such recognizance, 
 then the said justice, or any other justice of the peace who may then 
 and there be present, upon certifying on the back of the recognizance 
 the non-appearance of such accused party, may transmit such recogni- 
 zance to the clerk of the peace of the county, riding, division, liberty, city, 
 borough, or place within which such recognizance shall have been taken, 
 
 to be proceeded upon in like manner as other recognizances, 
 [*38] and such certificate shall be deemed sufficient prima facie *evi- 
 
 dence of such non-appearance of the said accused party ,(a)[l] 
 
 The following may be the form of the 
 
 Recognizance. 
 
 Be it remembered, that on the day of , in the year of our 
 
 Lord , A. B. of , [laborer,'] L. M., of , [grocer,] and N. 0., 
 
 of , [butcher,] personally came before me, [one] of Her Majesty's 
 
 justices of the peace for the said [county,] and severally acknowledged 
 themselves to owe to our lady the Queen the several sums following : 
 
 that is to say, the said A. B., the sum of , and the said L. M., and 
 
 1ST. 0., the sum of each, of good and lawful money of Great Brit- 
 ain, to be made and levied of their several goods and chattels, lands 
 and tenements respectively, to the use of our said lady the Queen, her 
 heirs and successors, if he the said A. B. fail in the condition indorsed. 
 
 Taken and acknowledged, the day and year first above mentioned, 
 at , before me, J. S. 
 
 (a) 11 & 12 Viet. o. 42, s. 21. 
 
 [1] A recognizance is a debt of record, entered into before some court, judge, or magis- 
 trate having competent authority to take the same. The manner of taking a recognizance 
 is, that the magistrate repeats to the recognizors the obligation into which they are to enter, 
 and the condition of it at large, and asks them if they are content. He makes a short mem- 
 orandum, which it is not necessary that they should sign ; although it has been the custom 
 in some places for the recognizors to sign their names. From this short minute the magis- 
 trate may afterwards draw up the recognizance in full form, and certify it to the court. 
 This is the most regular and proper way of proceeding. But the general, and almost uni- 
 versal practice, is to certify either the original or a copy of the short memorandum. Such 
 short minute, if it contain the sum in which the recognizors were bound, and the nature of 
 the condition, if it appear that they were bound to the Commonwealth, is sufficient to sup- 
 port an action on the recognizance. 2 Binn. 341. 
 
SUMMONS OF WITNESS. 38 
 
 Condition. 
 
 The condition of the within- written recognizance is such, That where- 
 as the within-bounden A. B., was this day, [or on last past] 
 
 charged before me, for that [dec, as in the warrant:"]. And whereas the 
 examination of the witnesses for the prosecution in this behalf is ad- 
 journed until the day of instant; if therefore the said A. B. 
 
 shall appear before me on the said day of instant, at o'clock 
 
 in the forenoon, or before such other justice or justices of the peace for 
 the said [county] as may then be there, to answer [further] to the said 
 charge, and to be further dealt with according to law, then the said re- 
 cognizance to be void or else to stand in fall force and virtue. 
 
 Notice of such Recognizance to be given to the Accused and his Sureties. 
 Take notice, that you, A. B., of , are bound in the sum of - 
 
 and your sureties L. M. and N. 0., in the sum of ■= each, that you, 
 
 A. B., appear before me J. S., one of Her Majesty's justices of the peace 
 
 for the [county] of , on the day of instant, at 
 
 o'clock in the forenoon, at , or before such other justice or 
 
 *justices of the peace for the same [county] as may then be there, [*39] 
 to answer further to the charge made against you by 0. D., and 
 to be further dealt with according to law ; and unless you A. B., person- 
 ally appear accordingly, the recognizances entered into by yourself and 
 
 sureties will be forthwith levied on you and them. Dated this 
 
 day of ,185—. J. S. 
 
 Certificate of Non-appearance to be endorsed on the Recognizance. 
 
 I hereby certify, that the said A. B. hath not appeared at the time 
 and place in the above condition mentioned, but therein hath made 
 default; by reason whereof the within- written recognizance is for- 
 feited. 
 
 J.S. 
 
 (c) Summons of Witness. 
 
 By stat. 11 & 12 Vict. c. 42, s. 16, if it shall be made to appear to 
 any justice of the peace, by the oath or affirmation of any credible per- 
 son, that any person within the jurisdiction of such justice is likely to 
 give material evidence for the prosecution, and will not voluntarily ap- 
 pear for the purpose of being examined as a witness at the time and 
 place appointed for the examination of the witnesses against the accused, 
 — such justice may and is hereby required to issue his summons to such 
 person, under his hand and seal, requiring him to be and appear at a 
 time and place mentioned in such summons before the said justice, or be- 
 fore such other justice or justices of the peace for the same county, &c, 
 
39 THE EXAMINATION AND COMMITMENT, &c. 
 
 as shall then be there, to testify what he shall know concerning the charge 
 made against such accused party ; and if any person so summoned 
 shall neglect or refuse to appear at the time and place appointed by the 
 said summons, and no just excuse shall be offered for such neglect or 
 refusal, then (after proof upon oath or affirmation of such summons 
 having been served upon such person, either personally or by leaving 
 the same for him with some person at his last or most usual place of 
 abode,) it shall be lawful for the justice or justices before whom such 
 person should have appeared to issue a warrant under his or their hands 
 and seals to bring and have such person at a time and place to be there- 
 in mentioned before the justice who issued the said summons, or before 
 such other justice or justices of the peace for the same county, &c, as 
 shall then be there, to testify as aforesaid, and which said war- 
 [*40J rant may, if necessary, *be backed as herein-before is mention- 
 ed, in order to its being executed out of the jurisdiction of the 
 justice who shall have issued the same ; or, if such, justice shall be sat- 
 isfied by evidence upon oath or affirmation, that it is probable that 
 such person will not attend to give evidence without being compelled 
 so to do, then, instead of issuing such summons, it shall be lawful for 
 him to issue his warrrant in the first instance, and which, if necessary, 
 may be backed as aforesaid. [1] 
 
 [1] The magistrate having authority to examine into the nature and circumstances of a crim- 
 inal charge against an offender, has also a power, as incident to his authority, to bring be- 
 fore him all persons who appear, from the oath of the complainant, or from the magistrate's 
 own knowledge, to be material witnesses for the prosecution ; and for this purpose may 
 issue his summons directed to a proper officer, requiring him to cause such witnesses to come 
 before him, and give evidence. See Davis' Just. 59; 1 Chit. Cr. L. 76. And upon the 
 reasonable request of the defendant, the magistrate has a similar power to bring before him 
 any witnesses whose testimony may be material on his behalf. Id. ib. ; 1. R. S. 94, § 14 ; 
 1 Chit. Cr. Law, 76 ; Rose. Cr. Ev. 87 ; 12 Wend. 344. 
 
 In some states the process for witnesses, the mode of its service, and the proceedings to 
 compel their attendance, are directed by statute. 
 
 In the absence of special statutory provisions, the magistrate must adapt his measures for 
 this purpose to the courde of the common law, and in analogy to the practice of the supe- 
 rior courts of justice. 
 
 At common law, formerly, the witness was summoned by the precept of the magistrate, 
 directed to him ; or, on proper grounds, was compelled to attend by the magistrate's war- 
 rant, to be served and executed by a constable. By the general practice, now, the process 
 for witnesses is subpeena and attachment. 
 
 If a witness, upon the service of a subpoena, refuse or neglect to attend in pursuance of 
 it, the magistrate may issue a warrant or an attachment against him. A warrant or an at- 
 tachment ought only to be issued on proof by oath of the due service of the subpoena. 
 
 It has been said that, at common law, in order to warrant an attachment, the service of 
 the subpoena must be personal. In criminal cases, the magistrate ought to be satisfied that 
 the witness had notice, or was informed of the subpoena. 
 
 In some states, it is provided by statute, that the justice may fine a person, for not ap- 
 pearing before him in pursuance of a subpoena, unless he was prevented by sickness, or 
 other sufficient cause. 
 
SUMMONS OF WITNESS. 40 
 
 The following is the form of the 
 
 Summons: 
 
 To E. P., of , [laborer.] 
 
 "Whereas information hath been laid before the undersigned, [one] of 
 
 her majesty's justices of the peace in and for the said [county] of , 
 
 that A. B. [&c, as in the summons or warrant against the 'accused,] and 
 it hath been made to appear to me upon [oath] that you are likely to 
 give material evidence for the [prosecution ;] These are therfore to re- 
 quire you to be and to appear before me, on • next, at o'clock 
 
 in the forenoon, at , or before such other justice or justices of the 
 
 peace for the same county as may then be there, to testify what you 
 
 In genera], in such oases, the witness may be made to pay the costs on the attachment 
 against him. 
 
 In criminal cases a witness cannot decline to be sworn, though he has not been supaenaed 
 at all. 2 Taylor's Evid. p. 802 ; 4 Carr. & P. Rep. p. 218. 
 
 "Where a witness refuses to be sworn, and to testify in answer to lawful questions, the 
 magistrate "may commit him to jail. He is to be committed, " until he consent to testify or 
 answer." 
 
 Pennsylvania. — In Philadelphia an alderman committed a person for refusing to testify, 
 on a charge before him for for selling lottery tickets contrary to the act of Assembly, until 
 the witness should answer : and on a habeas corpus, a judge of the court of common pleas 
 decided that the commitment was proper, and remanded the prisoner. 
 
 It seems, that in Ohio, by statute, a justice of the peace can only proceed by imposing a 
 fine on the witness, and enforcing it in the usual way. Swan's Justice, 481, 95. McKin- 
 ney's Am. Mag. 237, 238. 
 
 It is observed in a late English work: "If, indeed, the investigation relate to a charge of 
 felony or misdemeanor, it.seems pretty clear that the justices may exercise this power, of 
 summoning the persons whose testimony appears to be material, and in the event of their 
 disobedience to issue a warrant for their apprehension ; for although it is not expressly 
 Tecognized, either by the act of parliament, (7 Geo. IV. ch. 64,) or by the justices' commission, 
 is appears .to follow as a necessary consequence from the authority given to committing mag- 
 istrates to bind over all persons, who know any thing material touching such offences, to 
 appear at the trial. 12 Al. & El. Rep. 55 ; 4 Perry & Dav. Rep. 59. Still the warrant must 
 be confined to the simple purpose of directing the constable to bring the refractory witness 
 before the justice, in order to give his testimony; and, therefore, where it commanded that 
 the witness should be brought up to find sufficient bail to appear and give evidence at the 
 next assizes, it was held that the justice had exceeded his powers, and that the warrant 
 was bad. 12 AL & El. Rep. 55 ; 4 Perry & Dav. Rep. 32. 
 
 " In all other cases, where the inqiury does not relate to a charge of felony or misdemeanor, 
 though the ordinary course is to summon the witnesses, yet serious doubts have been enter- 
 tained, whether, on their neglecting or refusing to attend in pursuance thereof, -the justices 
 have, at common law, and where no express power is given by statute, any power to issue 
 a warrant for their apprehension." 2 Taylor on Evid. p. 850. 
 
 Though justices may be empowered, at common law, or by the general language of par- 
 ticular statutes, to compel the appearance of witnesses by summons and warrant or attach- 
 ment, they can only exercise this power within the limits of their own jurisdiction ; except 
 where power is expressly given to them, by statute, to issue process beyond their jurisdic- 
 tion. 
 
40 — 1 THE EXAMINATION AND COMMITMENT, Ac. 
 
 shall know concerning the said charge so made against the said A. B. 
 as aforesaid. Herein fail not. 
 
 Given under my hand and seal, this day of • , in the year 
 
 of our Lord , at , in the [county] aforesaid. 
 
 J. S. [l. s.][2] 
 
 Warrant where a Witness has not obeyed a Summons. 
 
 To the constable of , and to all other peace officers in the said 
 
 [county] of . 
 
 "Whereas information having been laid before the undersigned, [one] 
 of her majesty's justices of the peace in and for the said [county] of 
 
 , that A. B. [<&c, as in the summons ;] and it having been made to 
 
 appear to [me] upon oath that E. F. of , [laborer] was likely to 
 
 give material evidence for the prosecution, I did duly issue my sum- 
 mons to the said E. F., requiring him to be and appear before me, on 
 
 , at- , or before such other justice or justices of the peace for 
 
 the same county as might then be there, to testify what he should know 
 respecting the said charge so made against the said A. B. as aforesaid : 
 and whereas proof hath this day been made before me upon oath of 
 such summons having been duly served upon the said E. F. : and 
 
 whereas the said E. F. hath neglected to appear at the time 
 [*41] *and place appointed by the said summons, and no just excuse 
 
 has been offered for such neglect : these are therefore to com- 
 mand you to bring and have the said E. F., before me on , at 
 
 o'clock in the forenoon, at , or before such other justice or justi- 
 ces of the peace for the same [county] as may then be there, to testify 
 what he shall know concerning the said charge so made against the 
 said A. B., as aforesaid. 
 
 Given under my hand and seal, this > day of— — , in the year 
 
 of our Lord — ■ — , at , in the [county] aforesaid. [1] 
 
 J. S. [L. S.J 
 
 Warrant for a Witness in the first instance. 
 
 To the constable of , and to all other peace officers in the said 
 
 [county] of 
 
 Whereas information hath been laid before the undersigned, [one] of 
 
 Her Majesty's justices of the peace in and for the said [county] of -, 
 
 that [&c, as in the summons ;] and it having been made to appear to 
 
 [me] upon oath that E. F., of , [laborer] is likely to give material 
 
 evidence for the prosecution, and that it is probable that the said E. F. 
 will not attend to give evidence without beiDg compelled so to do; 
 
 [2] See Barb. Or. Law, p. 104, 105; 
 
 [1] Instead of summoning a witness to appear and testify, the justice may, if it is pre- 
 ferred, issue a subpoena to procure hiB attendance. 
 
SUMMONS OS" "WITNESS. 41 
 
 these are therefore to command you to bring and have the said E. F., 
 before me on , at o'clock in the forenoon, at ■ or be- 
 fore such other justice or justices of the peace for the same [county] as 
 may then be there, to testify what he shall know concerning the said 
 charge so made against the said A. B. as aforesaid. 
 
 Given under my hand and seal, this day of , in the year 
 
 of our Lord , at , in the [county] aforesaid. 
 
 J. S. [L. s.] 
 
 If on the appearance of such person so summoned before the said 
 last-mentioned justice or justices, either in obedience to the said sum- 
 mons, or upon being brought before him or them by virtue of the said 
 warrant, such person shall refuse to be examined upon oath or affirma- 
 tion concerning the premises, or shall refuse to take such oath or affir- 
 mation, or, having taken such oath or affirmation, shall refuse to an- 
 swer such questions concerning the premises as shall then be put to 
 him, without offering "any just excuse for such refusal, any justice of 
 the peace then present, and having there jurisdiction, may by warrant 
 under his hand and seal commit the person so refusing to the common 
 jail or house of correction for the county, riding, division, liberty, city, 
 borough, or place where such person so refusing shall then be, there to 
 remain and be imprisoned for any time not exceeding seven 
 days, unless he *shall in the meantime consent to be examined [*42] 
 and to answer concerning the premises.(a)[l] 
 
 The following may be the form of the 
 
 Warrant of Commitment of a Witness for refusing to he sworn or to give 
 
 Evidence. 
 
 To the constable of , and to the keeper of the [fiouse of correction] 
 
 at , in the said [county] of ■. 
 
 "Whereas A. B., was lately charged before the undersigned, [one] of 
 
 Her Majesty's justices of the peace in and for the said [county] of , 
 
 for that [&c, as in the summons ;] and it having been made to appear 
 to [me] upon oath that B. P., of , was likely to give material evi- 
 
 (o) 11 & 12 Viot. c. 42, s. 16. 
 
 [1] In the state of New York among the acts enumerated in the revised statutes as 
 amounting to criminal contempts, is " the contumacious and unlawful refusal of any person 
 to be sworn as a witness ; and when so sworn, the like refusal to answer any legal or proper _ 
 interrogatory. 2 N. V. Rev. Stat. 278, sec. 10. In such case, the justice may, by warrant 
 commit the refractory witness to the jail of the county. The warrant must specify the cause 
 for which it is issued, and if it be for refusing to answer any question, such question must be 
 specified therein ; and the witness is to be closely confined pursuant to the warrant until he 
 submits to be sworn, or to answer, as the oase may be. 2 N. V. Rev. Stat. 274, sees. 279, 
 230. 
 
 16 
 
42 THE EXAMINATION AND COMMITMENT, &c. 
 
 dence for the prosecution, I duly issued my summons to the said E. F., 
 
 requiring him to be and appear before me, on , at , or before 
 
 such other justice or justices of the peace as should then be there, to 
 testify what he should know concerning the said charge so made against 
 the said A. B., as aforesaid ; and the said E. F. now appearing before 
 me [or being brought before me by virtue of a warrant in that behalf, 
 to testify as aforesaid,] and being required to make oath or affirmation 
 as a witness in that behalf, hath now refused so to do [or being duly 
 sworn as a witness doth now refuse to answer certain questions con- 
 cerning the premises which are here put to him,] without offering any 
 just excuse for such his refusal : these are therefore to command you 
 the said constable to take the said E. F, and him safely convey to the 
 
 [house of correction] at , in the county aforesaid, and there deliver 
 
 him to the said keeper thereof, together with this precept ; and I do 
 hereby command you the said keeper of the said [house of correction] to 
 receive the said E. F. into your custody in the said [house of correction,] 
 and him there safely keep for the space of days for his said con- 
 tempt, unless he shall in the meantime consent to be examined and to 
 answer concerning the premises ; and for your so doing this shall be 
 your sufficient warrant. 
 
 Given under my hand and seal, this day of , in the year 
 
 of our Lord , at ■ , in the [county] aforesaid. 
 
 J. S. [L. s.] 
 
 (d) Defence 
 
 After the examinations of the witnesses on the part of the prosecu- 
 tion have been completedj the justice of the peace, or one of the justices, 
 by or before whom such examination shall have been so completed, 
 shall read or cause to be read to the accused the depositions taken against 
 him, and shall say to him these words, or words to the like effect : "Hav- 
 ing heard the evidence, do you wish to say anything in answer 
 [*43] to the charge ? You are not obliged to say anything *unless 
 you desire to do so, but whatever you say will be taken down 
 in writing, and may be given in evidence against you upon your trial ;" 
 and whatever the prisoner shall then say in answer thereto, shall be ta- 
 ken down in writing, and read over to him, and shall be signed by the 
 said justice or justices, and kept with the depositions of the witnesses, 
 and shall be transmitted with them as hereinafter mentioned ; and after- 
 wards upon the trial of the said accused person, the same may, if neces- 
 sary, be given in evidence against him, without further proof thereof, un- 
 less it shall be proved that the justice or justices purporting to sign the 
 same, did not in in fact sign the same.(a) 
 
 "Whatever the prisoner says after being thus cautioned, if it be taken 
 
 (a) 11 & 12 Vict. C. 42, s. 18. 
 
DEFENCE. 43 
 
 down and transmitted with the deposition, may be read against the 
 prisoner at the trial, without further proof.(a)[l] 
 
 The following is the form of taking down 
 
 The Prisoner's Statement. 
 A. B. stands charged before the undersigned, [one'] of her ma- 
 
 jesty's justices of the peace in and for the [county] aforesaid, this 
 
 day of , in the year of our Lord , for that he the said A. B. 
 
 on , at , [&c, as in the caption of the depositions ;] and the said 
 
 charge being read to the said A. B., and the witnesses for the prosecu- 
 tion, C. D. and B. P., being severally examined in his presence, the 
 said A. B. is now addressed by me as follows : " Having heard the ev- 
 idence, do you wish to say anything in answer to the charge ? you are 
 not obliged to say anything unless you desire to do so ; but whatever 
 you say will be -taken down in writing, and may be given in evidence 
 against you upon your trial ;" whereupon the said A. B. saith as fol- 
 lows : 
 
 [Here state whatever the prisoner may say, and in his very words, as 
 nearly as possible. Get him to sign it if he will.] A. B. 
 
 Taken before me at , the day and year first above mentioned. 
 
 (a) R. v. Sansome, 19 Law X 143 m. 
 
 [1] It seems that the first authority given by the English law for the examination of the 
 felon, were the statutes of Philip and Mary. For at the common law the maxim that no 
 one is bound to accuse himself, prevailed, in its full strictness. And indeed the examination 
 has been rather considered a privilege in favor of the party accused who may perhaps, clear 
 himself from suspicion. 
 
 On the examination, there are three modes of conduct for the defendant to adopt : to dis- 
 close his defence ; to remain silent ; or to confess his guilt. If he has been falsely accused, 
 he may prefer adopting the first course, to being" confined in prison until the sitting of the 
 court, or even to calling on his friends to bail him. But if it is doubtful whether his defence 
 would make such an impression as to secure his immediate discharge, it may be prudent to 
 reserve it to the time of trial, and decline answering any questions. Or lastly, if his guilt 
 is manifest, and there is small chance of acquittal, he had better make a frank confession. 
 
 Before commencing the examination of the prisoner, the magistrate should inform him of 
 the charge made against him, and allow him a reasonable time to send for, and advise with 
 counsel. If the magistrate refuses this, when requested;-the deposition will not be evidence 
 against the prisoner. 3 Hill's Rep. 289. If desired by the prisoner, his counsel may be pre- 
 sent during the examination of the complainant and the witnesses on the part of the prosecu- 
 tion, and during the examination of the accused himself. 2 N. T. Rev. Stat. ^08, sec. 14; 3 
 Hill, 289. 
 
 The prisoner's examination after having been reduced to writing, and read to him by the 
 magistrate, should next be tendered to him for his signature ; though the statute does not 
 oblige him to sign it ; nor is it essentially necessary ; but as a matter of convenience it would 
 be well to have him sign it if he is willing to do so. 2 Leaeh, 625. At all events, it must 
 be signed and certiGed by the magistrate. If, upon his. examination being read to him, he 
 acknowledges it to be true, but refuses to sign it, it is admissible against him at common 
 law ; but if he refuse to sign it, and make no such acknowledgment, it cannot be received 
 in evidence. 1 Stark. W. P. Ca. 483; 1 Phil. Ev.. 116. 
 
43 1 THE EXAMINATION AND COMMITMENT, &c. 
 
 Also, for the purpose of preventing the defendant being misled by 
 any promises or threats which may have been previously holden out 
 to him by the prosecutor, constable, or others, to induce him to make 
 any confession, — it is provided by the same section, that the said jus- 
 tice or justices, before such accused person shall make any statement, 
 shall state to him, and give him clearly to understand, that he has no- 
 thing to hope from any promise of favor, and nothing to fear from 
 any threat, which may have been holden out to him to induce him to 
 make any admission or confession of his guilt, but that what- 
 [*44] ever he shall *then say may be given in evidence against him 
 upon his trial, notwithstanding such promise or threat : provi- 
 ded nevertheless, that nothing herein enacted or contained shall prevent 
 the prosecutor in any case from giving in evidence any admission or 
 confession or other statement of the person accused or charged, made 
 at any time, which by law would be admissible as evidence against 
 such person.(6)[l] 
 
 (a) 11 & 12 Vict. c. 42, s. 18. 
 
 [1] In practice, when the party is brought before the magistrate, he is generally cautioned 
 that he is not bound to accuse himself; and that any admission may be produced againsthim 
 at his trial. Rex v. Green, 5 Carr. & P. 312. At all events no improper influence, either by 
 threat, promise, or misrepresentation, ought to be employed ; for, however slight the induce- 
 ment may have been, a confession so obtained cannot be received in evidence, on account 
 of the uncertainty and doubt whether it was not made rather from a motive of fear or inte- 
 rest than from a sense of guilt. 1 Leach, 263, 291, 386; 2 Hale, 284; 4 Bla. Com. 351 ; 
 Phil. Ev. 50, 51, 52 ; Hawk. b. 2, c. 46, s. 36 ; State v. Guild-, 5 Halstead, 163 ; 2 Stark. Ev. 
 (5th Am. ed.) 27, and n. (g) ; Commonwealth v. Knapp, 10 Pick. 489 ; Rex v. Thornton, 1 Ry. 
 & Moo. C. C. 27 ; Rex v. Swatkins, 4 Carr. k Payne, 550 ; Rex v. Dunn, 4 Carr. & Payne, 543 ; 
 Rex v. Davis, 6 Carr. k Payne, 177 ; Rex v. Cooper, 5 Carr. & Payne, 535 ; Rex v. Gilham, Carr. 
 C. L. 61 ; 1 Ry. & Moody, 186 ; Rex v. Ellis, 1 Ry. & Mood. 432 ; State v. Roberts, 1 Deve- 
 reaux, 259. 
 
 A confession so obtained is not rejected from a regard to public faith, but, because, when 
 forced from the mind by the flattery of hope, or by the torture of fear, it comes in so ques- 
 tionable a shape that no credit should be given to it by a jury. 2 Leach, 263, 264; Dick. 
 Sess. 211, 212. The justice should also be upon his guard against confessions uttered by 
 collusion. A remarkable instance of this kind deserves to be mentioned, as singularly illus- 
 trative of this caution. Two brothers committed a robbery in a dark night, to a large amount, 
 and fled. A younger brother, who was at home, and innocent, in order to favor their escape, 
 contrived to draw suspicion on himself, and when examined, dropped hints amounting to a 
 constructive admission of his guilt, which he refused to subscribe. On this he was commit- 
 ted to prison, and the pursuit of his brothers was discontinued. On the trial he proved an 
 alibi on the clearest evidence, and obtained an easy acquittal. In the mean time, the actual 
 felonB had safely arrived in America with their plunder. Dicks' J. Examination, III. If, 
 however, by means of a confession so unduly obtained, other facts are brought to light, 
 they may be proved, though the confession itself is inadmissible. Hawk. b. 2, u. 46, a. 38 ; 
 2 Leach, 264, and id. 265, n. a; 2 East, P. C. 658; Phil. Ev. 51; Dick. Sess. 212. See 2 
 Stark. Ev. (5th Am. ed.) 28 ; Roscoe's Dig. Cr. Ev. 36, 37 ; Commonwealth v. Knapp, 9 Pick. 
 496; Stater. Crank, 2 Bailey, 67; Jackson's case, 1 Rogers' Reo. 28; Stage's case, 5 ib. 177; 
 2 Russ. 650. The magistrate is to put all proper questions to the prisoner, taking down his 
 
DEFENCE. 44 
 
 The only effect of this however is to enable the prosecutor to give 
 in evidence upon the trial any confession of the prisoner made after it, 
 
 statement in writing as he proceeds, (Roscoe's Dig. Cr.' Bv. 45 ; 2 Stark. Ev. (5 Am. ed.) 28 ; 
 2 Russell, 656 ; Bellinger v. People, 8 "Wend. 599,) and, after closing his examination, should 
 read over the whole, and ask him if it be true, and if it contain any admission, should then 
 require him to sign it, and should sign it himself. Dalt. J. o. 164; 2 Russ. 657 ; 1 Phil. Ev. 
 107 ; Penna v. Stoops, Addis. 383 ; People v. Johnson, 1 Wheeler's C. C. 193. And an ex- 
 amination thus taken may be given in evidence against the prisoner on his trial, (1 Hale, 
 686,) though not against any other persons whom he may have incidentally accused. Hawk, 
 b. 2, u. 46, B . 31 to 34. Morrison v. State, 5 Ohio, 439. 
 
 The examination of the prisoner ought not to be upon oath, (1 Hale, 585 ; 2 Hale, 52, 
 120, 284; Bae. Ab. Evidence, L.; Burn, J. Examination; Dick. J. Examination, III.; Son 
 v. People, 12 Wend. 346. Where the prisoner, being mistaken for a witness, was sworn, 
 but the mistake being discovered, the deposition which had been commenced, was destroy- 
 ed, and the prisoner, subsequently, after a caution from the magistrate, made a statement, 
 Garrow, B. received that statement. Webb's case, 4 Carr. & Payne, 564 ; see also, Harwarth's 
 case, 4 Carr. & Payne, 254; 2 Stark. Ev. (5th Am. ed.) 29, n. (g),. and when thus taken, it 
 has been rejected. Bui. N. P. 242 ; Hawk. b. 2, c. 46, s. 37 ; Dick. J. Examination, HI.; 
 1 Stark. R. 242. "Where a magistrate returns with the depositions that a prisoner was 
 sworn and made statements, those statements cannot be received in evidence against him, 
 although a witness state that in fact he was not sworn. Begma v. PiJeesley, 9 Car. & Payne, 
 124 ; see Begina v. Owen, 9 Car., & Payne, 83. 
 
 On first view, it might appear unreasonable to refuse in evidence a confession, made under 
 this sanction, requiring stricter adherence to truth, and which would otherwise have been 
 evidently admissible, (2 Leach, 555; 4 Esp. Rep. 172;) but it must be remembered, that 
 every admission of the prisoner must, in order to render it available, be purely voluntary ; 
 and that the dread of perjury, with the apprehension of additional penalties in case he 'devi- 
 ates from the truth, may create an influence over his mind, which the law is particularly 
 scrupulous in avoiding. Vermont. — The confession of a person on trial for a crime, must 
 be submitted to a jury ; if extorted by personal suffering, it ought not to weigh in the least ; 
 if produced by fear or flattery, the jury must determine whether it is true or not ; but, if un- 
 supported by corroborating circumstances, it cannot operate to convict. 2 Tyler, 377. 
 
 The prisoner ought, therefore, never to be required to swear : and he ought' not to be 
 questioned or examined by the magistrate like a common witness. Holt, C. N. P. 597 ; but 
 see 2 Stark. Ev. (5th Am. ed.) 29, n. (g); Jones' case, 2 Russ. 658; Ellis' case, Ry. & Mood. 
 K. P. C. 432 ; Thornton's case, 1 Moody, C. C. 27 ; People v. Smith, 1 Wheeler's C. C. 54; 2 
 Russ. 649. The statutes are imperative on the magistrate, to take the examination in wri- 
 ting. 1 Leach, 310. What the party accused says in other places, may undoubtedly be re- 
 ceived upon viva voce testimony, ( Garty's case, M'Nally on Ev. 45 ; see also, 16 How. St. Tr. 
 35 :) but as the law requires that his examination shall be reduced into writing, and returned 
 to the court ; the "particulars of such examination cannot be given in evidence viva voce, 
 (MKe/nnon's case, 5 Rogers' Rec. 4. But it was said by Best, C. J. that his opinion was, that 
 upon clear and satisfactory evidence, it was admissible to prove something said by the 
 prisoner beyond what was taken down by the committing magistrate. Bowland v. Ashby, 
 Ry. & Mood. 232; see also, Harris' case, 1 Moody's C. C. 343; Moore's case, Matthews' Dig. 
 Cr. Law, 157. But where it ought to have been taken down in writing, and was not, Lit- 
 tledale, J. ruled, that it was inadmissible. Mahny's case, id. Where a written examination 
 was inadmissible on account of the mode of taking it, Tindal, C. J. permitted parol evidence 
 to be given of what the prisoner had said at the time of his examination. Seed's case, Moody 
 & Mai. 403,) unless it be clearly proved that in fact such examination never was reduced 
 into writing ; for it would be permitting the negligence of the magistrate to operate to the 
 prejudice of the prisoner; as a witness, by selecting only a part of what had been said, 
 might, by using different words, give a different color to the original statements. 2 Leach, 
 310, note a. It should seem, however, that if it be proved that the examination was not 
 
44 — 1 THE EXAMINATION AND COMMITMENT, &o. 
 
 notwithstanding any promise or threat previously made ; the omission 
 of it does not in the slightest degree prevent the prosecutor from giv- 
 ing in evidence a confession made before the justice in the prisoner's 
 statement above mentioned, after the usual cautions, (a) or a confession 
 made at any other time, which was not induced by any promise or 
 threat. This subject shall be now more fully treated of hereafter, un- 
 der the head of evidence. 
 
 It is necessary to mention, that no objection shall be taken or allow- 
 ed to any summons or warrant against a party accused, for any defect 
 therein in substance or in form, or for any variance between it and the 
 evidence adduced on the part of the prosecution before the justice or 
 justices who shall take the examinations of the witnesses in that behalf, 
 as herein-before mentioned ; but if any such variance shall appear to 
 
 (a) R. v. Sansome, supra; B. v. Bond, 19 Law J. 138 m. 
 
 taken in writing, parol evidence of the prisoner's declaration is admissible, (State v. Irwin, 1 
 Hayw. 112 ; Collins 1 case, 4 Rogers' Rec. 139 ; Suet's case, 2 Leach, 821 ;) for otherwise this 
 absurd consequence would follow, that whatever a prisoner says, when not before a magis- 
 trate, would be admissible, though depending on memory; but the moment a prisoner was 
 introduced into the presence of a justice, nothing that he might disclose would be admissible, ' 
 though taken under circumstances of the greatest caution and solemnity. 2 Leach, 310, note 
 a. ; id. 639, 552. Therefore, minutes taken by a solicitor for the prosecution, on the exami- 
 nation of a prisoner, at the direction of such magistrate, may be read in evidence on the trial, 
 as a memorandum to refresh the witness' memory, though not signed either by the prisoner 
 or the magistrate. 2 Leach, 673 ; id. 552 ; 16 How. St. Tr. 214 ; Dick, , J. Examination, III. ; 
 Roscoe's Dig. Cr. Ev. 47, 48; 2 Russ. 658. And the signature of the prisoner, though it is 
 advisable to obtain it, is not essentially requisite. 2 Leach, 552 ; id. 637; 2 Russ. 657. It 
 is competent, however, for the prisoner to retract before the magistrate his admission of 
 guilt, as to prevent his examination from being read in evidence against him, under the stat- 
 ute 2 & 3 P. & M. c. 10, (2 Leach, 553, note a;) but still the previous admission may be 
 given in evidence, independently of the statute, as a confession of the offence. 2 Leach, 
 552. If, after the examination of a prisoner before a magistrate, upon a charge of felony, 
 has been taken down by the magistrate's clerk, and it is read over to him, and he is told 
 that he may sign it or not as he ohoses, he declines to sign it, the examination cannot be 
 read in evidence (2 Stark. 483) unless he says it is true. 2 Stark. 483 ; Lamp's case, Leach 
 C. L. 625 ; see JDewhurst's case, Lewin 0. 0. 47 ; Rex v. Pressby, 6 Carr. & Payne, 183 ; Rex 
 v. Tarrant, id. 182. If the examination is taken down in writing by a constable only, and 
 is not therefore under the statute, yet if the prisoner signs it, the paper itself may be read in 
 evidence. Swatkiris case, 4 Carr. & Payne, 550. But private persons have no authority to 
 take the examination under the statute. Commonwealth v. Boyer, 2 Wheeler G C. 150. 
 
 If there be more than one person accused, it is of evident importance that all of them 
 should be examined apart ; in order that an opportunity may be afforded of detecting any 
 variations in their story. In order, also, to prevent any communication between them pre- 
 vious to the trial, it will be prudent to give special directions to the keepers to confine them 
 in different parts of the prison. Dick. J. Examination, IIL If the. party accused decline 
 making any defence, the magistrate may proceed to commit him. During the whole of the 
 proceedings, it will be prudent for the justice to have his clerk, or other intelligent person 
 present, in order that no difficulty may arise in proving the identity of the deposition, in case 
 of a refusal to subscribe it by a witness, Dick. J. Examination, III. ; Roscoe's Dig. Cr. Ev. 
 49; People v. Robinson, 1 Wheeler C. C. 240; Richard's case, 1 Moody A- Rob. 396, n. ; Hope's 
 case, 1 Moody & Rob. 39C, u. 
 
DISCHARGE AND COMMITMENT. 44 2 
 
 such justice or justices to be such, that the party charged has been 
 thereby deceived or misled, it shall be lawful for such justice or justices 
 at the request of the party so charged, to adjourn the hearing of the 
 case to some future day, and in the meantime to remand the party so 
 charged, or to admit him to bail, in manner already mentioned.(a) 
 
 (e) Discharge and commitment. 
 
 When all the evidence offered upon the part of the prosecution against 
 the accused party shall have been heard, if the justice shall be of opin- 
 ion that it is not sufficient to put the accused upon his trial for any in- 
 dictable offence, he shall forthwith order him, if in custody, to be dis- 
 charged as to the information then under inquiry ; but if in the opin- 
 ion of the justice such evidence is sufficient to put the accused party 
 upon his trial for an indictable offence, or if the evidence given raise 
 a strong or probable presumption of the guilt of such accused party, 
 then such justice shall, by his warrant, commit him to the common 
 jail or house of correction for the county, riding, division, liberty, city 
 borough, or place to which by law he may now be committed, or, in 
 the case of an indictable offence committed on the high seas, or on 
 land beyond the sea, to the common jail of the county, riding, division, 
 liberty, city, borough, or place within which such justice or jus- ' 
 tices shall have jurisdiction, *to be there safely kept until he * [*45] 
 shall be thence delivered by due course of law, — or admit him 
 to bail, as herein-after mentioned.(6)[2] 
 
 (a) Ante, p. 36, 31 ; 11 & 12 Viet. u. 42, (Z>) 11 & 12 Vict. 0. 42, s. 25. 
 
 ss. 9, 10. 
 
 [1] The following observations are taken from M'Kinney's American Magistrate, pages 
 249, 250, 251 : " This examination, or primary hearing, before the magistrate, is designed to 
 be an investigation into the truth of the matter, in the particular case, for the purpose of 
 enabling him to determine whether the person accused should be held to answer the charge 
 on final trial in the proper court of justice. 
 
 " The true inquiry is, whether the whole evidence has established the guilt of the accused 
 person, or furnished reasonable and probable cause for believing that he is guilty of the 
 alleged crime or offence ; in which case he is to be committed to prison, or, in some instances, 
 may be admitted to bail, in order that he might be forthcoming to answer the charge, in due 
 course of law. 
 
 " On this question the magistrate is required to act judicially,-, in the exercise of his under- 
 standing and judgment, with a proper consideration of all the evidence adduced, in such 
 examination, and of the law relative to the case. 
 
 ,: To the extent of this inquiry, the magistrate is judge of the law and the- facts.. On the 
 supposition that certain facts have been proved, as alleged against the defendant,, he may 
 decide that they do not constitute any offense at law. And in forming his judgment he 
 may thus determine the construction and meaning of a statute, in respect to its application 
 to the particular case before him. , A prudent magistrate, however, will take care that an 
 .uncertain doubt on his mind as to a point of law should not operate to the absolute dis- 
 
45 THE EXAMINATION AND COMMITMENT, &o. 
 
 The following is the form of the 
 
 Warrant of Commitment 
 
 To the constable of ■ and to the keeper of the [house of correction] 
 
 at ■ ■, in the said [county] of . 
 
 Whereas A. B., was this day charged before me, J. S., [one] of Her 
 
 charge of the accused, so as perhaps to cause the escape of a criminal ; but he will rather - 
 so order his proceeding in the case that the matter may be adjudicated upon by a higher 
 tribunal, in the ordinary forms of law. 
 
 " Where a magistrate is convinced that the facts as proved do not furnish probable cause 
 for believing the defendant to be guilty, he ought to discharge him. But on a question of 
 facts entirely, if he should have a reasonable doubt, he ought to commit the defendant, or 
 admit him to bail ; as it is in the province of a jury to decide upon matters of fact. 
 
 " If the justice be not entirely satisfied that the defendant is guilty, yet if the circumstances 
 proved against the defendant are positively suspicious, and such as render his guilt probable* 
 and the crime be an indictable offence, the justice should require him to enter into recogni- 
 zance, or commit him to prison. Swan's Justice, p. 482. 
 
 " The magistrate or justice has the same jurisdiction over the law, as. the facts, in all crim- 
 inal cases before him. His first duty is to see that the offence charged is an offence, con- 
 trary to the statute or common law ; and secondly, that the facts present ' a case made out 
 by proof furnishing good reason to believe that the crime alleged has been committed by the 
 party charged.' Decisions of Recorder Vaux, in Philadelphia, p. 94. 
 
 " On a primary examination, evidence is sufficient as to its bearing and weight, which 
 would' not be on a trial in chief; and proof that absolutely convinces of the guilt of the 
 accused is not necessary. 
 
 " Probable cause for commitment must be shown ; and probable cause is made out by 
 furnishing good reasons for believing that the alleged crime has been committed by the 
 accused. 1 Burr's Trial, 11, 15; 4 Dall. 112. 
 
 "The principles laid down under this head are to govern the magistrate, in 1 the case of a 
 person brought before him for examination and further proceeding, on a warrant for a crim- 
 inal offence issued by another justice of the peace or magistrate, where the warrant author- 
 izes this to de done. 
 
 " If upon the examination of the whole matter, it manifestly appears that either no such 
 crime was committed by any person, or that the suspicion entertained of the prisoner was 
 wholly groundless, it is lawful for the magistrate totally to discharge him, without even 
 requiring bail. But if there be an express charge of felony, on oath, against the prisoner, 
 though his guilt appear doubtful, the justice cannot wholly discharge him, but must bail or 
 commit him. And it is said, that if a person be killed by another, though it be pet inforttir 
 niwm, or even se defendendo, yet the justice ought not to discharge him, for he must undergo 
 his trial ; and therefore, must be admitted to bail, or sent to prison. And in modern prac- 
 tice, though exculpatory evidence is received at the instance of the prisoner and certified 
 with the other depositions, unless it appears in the clearest manner, that the charge is ma- 
 licious as well as groundless, it is not usual for the magistrate to discharge him, even when 
 he believes him to be altogether innocent. 1 Chitty's Crhn, Law, 89. 
 
 " To warrant a commitment, the proof is not required which would be necessary to con- 
 vict a person on the trial in chief; but the committing magistrate will require that probable 
 cause be shown. Probable cause is a case made out by proof, furnishing good reason to 
 believe, that the crime alleged has been committed by the person charged. When such 
 cause is shown, it can be done away only by its appearing that no such crime has been 
 committed, or that the suspicion entertained of the prisoner is wholly groundless. U. S. v. 
 Bwr, Sergeant's Const. Law, 242. 
 
 " There is no doubt, that even in cases of homicide, if it appear certainly and beyond 
 
WHERE COMMITTED FOR TRIAL AT THE SESSIONS. 45 — 1 
 
 Majesty's justices of the peace in and for the said [county] of , on 
 
 the oath of C. D., of- -, [firmer,] and others, for that- [&c, stating 
 
 shortly the offence :] These are therefore to command you, the said con- 
 stable of , to take the said A. B., and him safely to convey to the 
 
 [house of correction] at aforesaid, and there to deliver him to the 
 
 keeper thereof, together with this precept : and I do hereby command 
 you, the said keeper of the said [house of correction,] to receive the said 
 A. B. into your custody in the said [house of correction,] and there safe- 
 ly keep him until he shall be thence delivered by due course of law. 
 
 Given under my hand and seal, this day of ■ — ■ — -,in the year of 
 
 our Lord , at — — , in the [county] aforesaid. 
 
 J. S. [L. s.] 
 
 (/) Where commited, for trial at the sessions. 
 
 By stat. 5 & 6 W. 4, c. 38, s. 3, it shall be lawful for any justice of 
 the peace to commit for safe custody to any house of correction situate 
 near to the place where the sessions are to be holden, at which the pris- 
 oner, is intended to be tried. Formerly they could be committed only 
 to the county jail. [1] 
 
 doubt that a person was killed by another accidentally, or in self-defence, or justifiably, the 
 justice ought to discharge him, if brpught before him." 
 
 The defendant must be discharged if the justice is entirely satisfied of his innocence. 1 
 Swan's Just. p. 482. 
 
 A justice has power, on examination of a charge of suspicion of folony, or having stolen 
 goods, to discharge the accused person, if he was satisfied that there was no ground for 
 suspicion. 2 Johns. Rep. 203. 
 
 If the defendant be charged with suspicion only of felony, yet if there be no felony at all 
 proved to be committed, or if the fact charged be in truth no felony in point of law, the 
 justice may discharge him. 2 N. H. 121. 
 
 Whenever a person is brought before a justice of the peace, upon an accusation of trea- 
 son or felony, if it manifestly appear that no such crime was committed, or that the cause 
 for which alone the party was suspected was totally groundless, it is lawful to discharge 
 him without bail, 2 Hawk. eh. 16, s. 1. 
 
 Such a discharge by a justice of the peace, will not bar another prosecution for the same 
 offence. Wright's Rep. 450. Ohio. 
 
 When a magistrate is satisfied, upon the examination, and on a consideration of all the 
 evidence on both sides, that the accused is guilty of the offence charged, or that there is 
 probable charge of suspicion against him, it is his duty to commit him, that he may answer 
 the charge at the proper court ; unless in a bailable case, sufficient bail be given. The same 
 principles apply to the case of a person arrested on a warrant of a justice being brought 
 before another justice. The latter may, on a hearing and examination, in the exercise of 
 his judgment as to the probable guilt of the prisoner, commit him to jail for trial. In short, 
 if the offence be not bailable, or the party cannot find bail, he is to be committed to the 
 county jail by the mittimus of the justice, or warrant under his hand and seal containing the 
 cause of commitment; there to abide until delivered by due course of law. 4 Bit Com. 300. 
 
 [2] A commitment by a magistrate for trial at court is, in general, to the county jaiL 
 
 The New York revised statutes merely require that the defendant should be committed 
 to prison. By this is doubtless intended, as regards every county excepting New York, the 
 common jail or one of the common jails of the county in which the offence was committed ; 
 
 17 
 
45 — 2 THE EXAMINATION AND COMMITMENT, &o. 
 
 Also, justices of boroughs or franchises, not having power to hear 
 and determine felonies, instead of being obliged, as formerly to commit 
 all felons for trial at the assizes, may now commit them for trial at the 
 quarter sessions for the county, &c, in which such borough or franchise 
 is situate.(a) And justices of boroughs and franchises, having power to 
 try felonies, may commit the person charged with felony for trial at the 
 quarter sessions of the county, &c, where the offence is within the juris- 
 diction of the sessions of the county, &c, but not within that of the ses- 
 sions for the borough or franchise.(i) But where a felony or midemea- 
 nor is committed within a town or franchise having a recorder, and a 
 prison fit for the confinement of prisoners, the magistrates of such town 
 or franchise shall commit the offender to the prison of such town, in all 
 cases where, if the offence had been committed in the county it would 
 be tried at the quarter sessions of the county.(c) 
 
 (g) Where committed/or trial at the assizes. 
 
 [*46] Prisoners intended *to be tried at the assizes, may be commit- 
 ted to the common jail of the county ; and formerly they could 
 be committed to no other place.(d!) 
 
 But by stat. 5 & 6 W. 4, c. 38, s. 3, justices may commit. for safe cus- 
 tody to any house of correction situate near to the place where the as- 
 sizes are to be holden at which the prisoner is intended to be tried. 
 
 And by stat. 14 & 15 Vict. c. 55, s. 20, justices of the peace, at their 
 general or quarter sessions for any county, riding, or division, may, by 
 
 (a) 4 & 5 "W. 4, c. 21, s. 1. (c) 4 & 5 "W. 4, c. 21, s. 3. 
 
 (6) Id s. 2. (d) 5 H. 4, e. 10. 
 
 as there is no other prison (excepting the state prisons,) in which criminals can be imprison- 
 ed. Even where the prisoner is arrested out of the county in which the offence was com- 
 mitted, upon an indorsed warrant, we have seen that in case he does not give bail, he is 
 to be carried before a magistrate of the county where the warrant was originally issued, in 
 order that the' subsequent proceedings against him may he had in such county. See 1 Chit. 
 Cr. L. 107, 108. In some of the counties of this state, however, (such as are called half- 
 shire counties,) there is more than one jail ; and in the city of New York there are several 
 prisons which are used for the confinement of criminals. When the commitment takes 
 place in a county where there is but one common jail, the commitment should be to the com- 
 mon -jail of the county generally ; but where there is more than one jail or prison in the 
 county, the mittimus ought to direct to which of them the prisoner shall be committed ; for 
 if the direction be that he shall be committed to either of the jails in the county, the officer 
 who is to convey him to prison and execute the warrant, would be authorized to commit him 
 to the most distant as well as the nearest prison to the place where he was examined. There 
 is no necessity or propriety in given the officer this power ; for in general it is proper that 
 the commitment should be to the nearest prison, not only with the object of saving expense, 
 but to prevent the -opportunity of escape or rescue. Whenever, through the insufficiency 
 of the nearest jail, or from any other cause, it is expedient to order the commitment to be 
 made to one more distant, the magistrate, and not the officer who is to execute the warrant 
 of commitment, ought to be the judge of this expediency. Many escapes have been effect- 
 ed during the conveyance of prisoners from the place of examination to distant jails, by old 
 offenders, in the custody of inexperienced officers. Davis' Just. 112. 
 
COMMITTAL FROM COUNTY OP A TOWN FOR THE ASSIZES. 46 
 
 order made for that purpose, declare that any jail or house of correc- 
 tion for such county, &c, is a fit prison for persons committed for trial 
 at the assizes, for such county, &c, which order shall be transmitted to 
 one of Her Majesty's principal secretaries of state ; and after the secre- 
 tary of state shall approve of such order, any justice of the peace or 
 coroner, acting for such county, &c, may commit for safe custody for 
 trial at the next assizes, to such jail or house of correction, any person 
 charged with any offence triable at the assizes for such county, &c, and 
 the commitment shall specify that such person is committed under the 
 authority of this Act ; and the recognizances to appear to prosecute 
 and give evidence, shall in all such cases be conditioned for appearance, 
 prosecution, and giving evidence at the court of oyer and terminer and 
 jail delivery for the county. 
 
 (h) Committal from county of a town for the assizes. 
 
 By stat. 14 & 15 Vict. c. 55, s. 19, whenever any justice or justices 
 of the peace, or coroner, acting for any county of a city or county of a 
 town corporate (within which Her Majesty has not been pleased for five 
 years next before the passing of this act to direct a commission of oyer 
 and terminer and jail delivery to be executed, and until Her Majesty 
 shall be pleased to direct a commission of oyer and terminer and jail 
 delivery to be executed within the same,) shall commit for safe custody 
 to the jail or house of correction of such county of a city or town any 
 person charged with any offence committed within the limits of such 
 county of a city or town not triable at the court of quarter sessions of 
 the said county of a city or county of a town, — the commitment shall 
 specify that such person is committed pursuant to this act ; and the re- 
 cognizances to appear to prosecute and give evidence, taken by such 
 justice, justices, or coroner, shall in all such cases be conditioned for 
 appearance, prosecution, and given evidence at the court of oyer and 
 terminer and jail delivery for the next adjoining county. The com- 
 mitment in such cases will be the same as in ordinary cases, except that 
 after the words "by due course of law," you add, "the said A. B., be- 
 ing hereby committed in pursuance of statute 14 & 15 Vict. c. 55." 
 
 And by the same statute, s. 21, the parties so committed *shall [*47] 
 afterwards in due time, without writ of habeas corpus or other 
 writ for that purpose, be removed by the jailer or keeper of such jail 
 or house of correction, with their commitments and detainers, to the 
 common jail of such county, in order that they may be tried at the 
 assizes to be holden for such county, and such removal shall not be 
 deemed or taken to be an escape. 
 
 (i) The U7ce, from towns, dtc, not being counties. 
 By stat. 60 G-. 3, & 1 G. 4, c. 14 s. 1, the justices of the peace in and 
 
47 THE EXAMINATION AND COMMITMENT, Ac. 
 
 for any town, liberty, soke, or place not being a county, but having an 
 exclusive jurisdiction for the trial of felonies and misdemeanors com- 
 mitted within the same, shall have full powers at their discretion, to 
 commit any person, duly charged before them with a capital felony, to 
 the jail of the county, within which such town &c, shall be situate, 
 there to be tried at the next session of oyer and terminer and jail de- 
 livery there to be holden, in the same manner as if the same had been 
 committed within any other part of the county.[l] 
 
 [1] Although the form of the commitment or mittimus, does not perhaps require as much pre- 
 cision as an indictment or complaint, yet it is said by Mr. Chitty to be very important that 
 it should be framed with accuracy, or the party may, though prosecuted for a felony, be dis- 
 charged out of custody ; or if he escape, the officer may not be punishable. 1 Chit. Cr. L. 
 109 ; 2 Hawk. oh. 16, § 16. It has been held by our supreme court, however, that though 
 the warrant of commitment be defective, the supreme court will not discharge the prisoner 
 finally for that reason ; but if a crime be made out upon the depositions, the course is to 
 discharge the prisoner pro forma, but remand him to prison upon a special rule of court. 
 5 Cowen, 39 ; and see 3 East, 157. - 
 
 The following are the formal requisites of a final commitment : 
 
 1st. It must be in writing, and under the hand and seal of the magistrate, and show the time 
 and place of making it. 2 Hale, 122 ; 1 Chit. Cr. L. 109 ; 2 Hawk. P. C. ch. 16, § 13. A ma- 
 gistrate, however, may, by parol, order a party to be detained a reasonable time until he can 
 draw out a formal commitment. 7 East's R. 537 ; 1 Chitt. Cr. L. 109; 2 Hale, 121. And it 
 is said that though advisable, it is not absolutely necessary to state that the commitment 
 was made by the justice in that character ; for though his authority does not appear at the 
 beginning of the mittimus, it may be supplied by averment. 2 Hale, 122 ; Kenyon's Eep. 
 122. In order, however, to show the jurisdiction of the magistrate to take cognizance of 
 and commit for an offence perpetrated out of his county, when the party has been appre- 
 hended there, as in the case of a person arrested in one county for an offence committed in 
 another, it is said to be usual to state the fact in the commitment. 1 Chit. Cr. L. 109. 
 
 2d. The mittimus may be either in the name of the people or that of the justice awarding it; 
 but the latter Us' the most usual. Id. ib ; Bait. J. ch. 125 ; 2 Hawk. ch. 16, § 14 ; Dick, J. Com- 
 mit. IV ; But see Davis' J. 107 ; 1 Nun & "Walsh, 403. 
 
 In case the justice to whom the complaint was made, associates another justice with him, 
 as we have seen he may do, the mittimus should be signed by both. See 1 Nun & Walsh, 
 404. 
 
 3d.' The mittimus should be directed to the sheriff or any constable, and to the jailer and heeper 
 of Oie prison, and be generally to carry the party to prison. 2 Hawk. ch. 16, § 13 ; 2 Strange, 
 934 ; 1 Ld. Raym. 424. When thus directed it commands the former to convey the prisoner 
 into the custody of the latter, and the latter to receive and keep him. Burns, J. Commit. 
 
 4th. The prisoner should be described by his name, if known; and if not known, then it may 
 be sufficient to describe the person by his age, statute, complexion, color of hair and the 
 like, and to add that he refuses to tell his name. Ibid. 1 Hale, 577. 
 
 5th. The mittimus ought to state that the party has been charged apon oath. For although in 
 England, it is said that a commitment for treason, or the suspicion of it, without setting forth 
 any particular accusation or ground of it, is valid, yet in this state a magistrate has no juris- 
 diction to examine or commit offenders unless there is a complaint on oath ; and the com- 
 mitment ought to show, upon its face, that the magistrate had jurisdiction. There may be 
 an exception to this rule, in cases of commitment made super visum, or upon view of the 
 offence, by the committing magistrate, in whioh cases an oath is not requisite. 1 Leach, 167 ; 
 1 Chit. Cr. L. 110, But in all cases of crimes committed upon the view or in the presence 
 of a magistrate, whatever may be his authority to punish them, it is more fit and proper 
 that he should act the part of a witness rather than of a magistrate ; and that he should 
 
BINDING BY RECOGNIZANCE, &c. 47—1 
 
 (k) Binding by recognizance; transmission of depositions, &c. 
 
 _ If the accused be committed or bailed, then, by stat. 11 & 12 Vict. c. 
 42, s. 20, the justice or justices before whom any -witness shall be ex- 
 enter his complaint and procure a process from another justice. 2 "Wils. 158. It is not ne- 
 cessary to state, in the commitment, any part of the evidence adduced before the magistrate, 
 or to show the grounds on which he has thought fit to commit the defendant 2 Wils. 158 ; 
 1 Chit. Cr. L. 110. 
 
 6th. It is necessary to set forth the particular species of crime alleged against the party, with 
 convenient certainty. 2 Hawk. ch. 16, § 16 ; 1 Hale, 584 ; 2 id. 122 ; 11 St. Tr. 304, 318, 319 ; 
 3 Cranch, 448 ; 3 Peters, 208 ; 14 Bast's Rep. TO. If it be for felony, it must state the species 
 of felony, as "for felony of the death of J. S.""or " for burglary in breaking the house of J. 
 S." &c. And the reason is that it may appear to the judges, upon the return of a habeas 
 corpus, whether it be felony or not. 2 Wils. 158, 9. It has been decided in Massachusetts, 
 that a mittimus or. warrant of commitment from a justice of the peace ought, to recite the 
 complaint upon which it is founded. 4 Mass. Rep. 497. And doubtless this is the safer 
 course; and such, in point of fact, is the practice in this state; "though it is going farther 
 than the English authorities require. There are many reasons for requiring that the cause 
 of commitment should be distinctly stated. For if no cause be shown and the prisoner 
 escape, it is said that the officer is not punishable. 1 Chit. Cr. L. Ill ; 2 Inst. 52. It is also 
 said that a mittimus, to answer such things as shall be objected against 1 him, is utterly void 
 and against law. Burns, J. Commit. Ill; 2 Inst. 591 ; 1 Hale, 580. If the mittimus does 
 not recite the cause of the commitment, that is, if it do not recite the complaint upon which 
 it is founded, it seems it will not be an offence to assist or enable the prisonar to escape from 
 prison. 1 Leach, 97, 363; 1 Chit. Cr. L. 111. Another reason given why a warrant of 
 commitment should set forth the crime for which the party is committed, is that if he be 
 brought before the court upon a habeas corpus, and it does not appear by the return that he 
 is committed for, and charged with a criminal offence, the court will either discharge or bail 
 him. And this rule, is said to apply not only where no cause at all is expressed in the mitti- 
 mus, but also when it is so loosely set forth that the court cannot judge whether it were a rea- 
 sonable ground of imprisonment. 2 Hawk.. P. C. ch. 16, § 16 ; 1 Chit. Cr. L. Ill; 2 Inst. 52 ; 
 Dalt. J. ch. 166. And therefore if the commitment be for felony, it must not be " for felony ' ' 
 generally ; but it must contain the special nature of the felony ; (2 Wils. 158, 9 ; 2 Hale, 
 122,) though His said by Hawkins, that there are precedents in good authors, of commit- 
 ments for felony in general, without stating the speciSe accusation. 2 Hawk. ch. 16, § 16. 
 In the case of John Willces, (2 Wils. 153, 159,) which was a commitment for publishing "a 
 most infamous and seditious libel, entitled the North Briton, No. 45, tending to inflame the 
 minds and alienate the affections of the people from his majesty, and to excite them to 
 traitorous insinuations against the government," it was held sufficient, though it was urged 
 that the libel ought to have been set forth, in order that the court, on a habeas corpus, might 
 be able to determine the amount of bail. Cases are mentioned in Hawkins of this kind, 
 where one was committed for manifold contumacy to the high commissioned court ; or for re- 
 fusing to answer before them to certain articles; for insolvent behavior, and words spoken 
 at the council board, all of which are very properly said to be not good without stating and 
 showing the specific nature of the offences. 2 Hawk. ch. 16, § 16. And enough should be 
 stated in the commitment to show that the magistrate had jurisdiction. 
 
 When the facts of the case will warrant a commitment for felony, (and for the same reason, 
 any other crime,) the mittimus should not be on suspicion of felony ; for it was said by Lord 
 Mansfield, that on such a commitment, a party has a right to be bailed under the habeas 
 corpus act; and that a person who should facilitate the escape of a party so committed, 
 would not be indictable. 1 Leach, 98, note (a.) Id. 97, 363. The correctness of this opinion 
 is not readily perceived ; for there is no question that a magistrate, both at common law and 
 by the revised statutes of this state, may arrest and examine a supposed offender upon sua- 
 
47 2 T S E EXAMINATION AND COMMITMENT, Ac. 
 
 amined as aforesaid, may bind by recognizance the prosecutor and every 
 such witness to appear at -the next court of oyer and terminer or jail 
 
 picion ; and if so, it is his duty to commit or bail him ; except in cases where a court of spe- 
 cial sessions is authorizod to try him. If then, the arrest, examination, and consequent 
 commitment be legal, the party is no more entitled to be discharged or bailed upon a habeas 
 corpus, because he was committed upon suspicion, than if he had been committed upon an 
 absolute charge; and it should seem that the duty of the court, upon a habeas corpus, would 
 be the same in one case as the other; that is, they would exercise their power of bailing, 
 remanding, or discharging the party, as the result of 'the inquiry upon the habeas corpus 
 would justify, whether he were committed upon suspicion or upon a positive accusation. 
 Davis' J. 111. 
 
 It is not necessary to allege, in the mittimus, that the offence was " feloniously " commit- 
 ted; and it is sufficient, if it may be collected on the face of it, that the charge was for a 
 felony. 1 Chit. Or. L. 113. 
 
 In the case of convictions, it has been decided that though the conviction may be correct, 
 yet if the commitment be for a different offence, or do not disclose any offence at all, the 
 magistrate is liable to an action for the imprisonment, &c. under it. 3 Barn. & Gress. 409 ; 
 
 1 Ry. & Moo. C. C. 129, S. C. 
 
 "When the offence is created by statute the terms of the statute should be pursued in de- 
 scribing it ; for by using other words than those which the legislature has used, it may hap- 
 pen that the offence will not be sufficiently denned. Thus a prisonerwho had been com- 
 mitted, for that " with force and arms he made an assault on the prosecutor with intent 
 feloniously to steal, take, and carry away, from the person," Ac. was admitted to bail by the 
 king's bench, because the description did not charge him with an offence within the statute 
 7 Geo. 2, Gh. 21, under which he was committed, and which relates to felonious attempts to 
 rob. Rex v. Remnant, 5 T. R. 169 ; 2 Leach, 583. It seems, ho wever, "that the addition of 
 the word " violently " to steal, &c. would have been a sufficient description of the offence, 
 within the statute. 2 Leach, 702 ; 1 Russ. Cr. L. 619. "Where the offence described by the 
 statute was setting fire to a cock, mow, or stack of corn, and the charge in the commitment 
 was for setting fire to a parcel of wheat, it was held that this did not sufficiently specify the 
 felony described by the statute, and the prisoner was accordingly admitted to bail. 2 Term 
 Rep. 256; 1 Leach, 484. So where a warrant of commitment under" a statute relating to 
 persons riotously destroying houses, &c. stated that the defendant began to pull down "in 
 part" a dwelling-house, the words "in part" not being in the statute, it was held an impro- 
 per description, and the offender was bailed. 7 Dowl. 538. 
 
 The commitment in such cases should also conclude " against -the form of the statute in 
 that case made and provided." 1 Nun & "Walsh, 408. 
 
 7th. The commitment should point out the place of imprisonment, and not merely direct that 
 the party should be taken to prison. 2 Strange, 934 ; 1 Ld. Raym. 424. "We have already 
 stated what is the proper prison to which he ought to be conveyed. 
 
 8th. Time and mode of imprisonment. "With respect to the time and mode of imprisonment, 
 it is observed that the commitment should have an apt conclusion. The statute has not 
 prescribed any particular form for this precept. At common law, the words used in the 
 conclusion are, to detain the prisoner " until he shall be discharged by due course of law." 
 
 2 Hale, 123 ; 2 Hawk. ch. 16, § 18. These words are said to be proper only when the party 
 is committed for an offence not bailable ; but when he is committed for want of sureties for 
 a bailable offence, it is said to be usual to direct the jailer to "keep the prisoner in his said 
 custody, for want of sureties, or until he shall. be discharged by due course of law." The 
 mittimus may command the jailer to keep the party "in safe custody;" for although every 
 jailer be bound by law to keep his prisoner in such custody, there can be no objection to re- 
 minding him of his duty in the mittimus. 2 Hawk. P. C. ch. 16, § 15 ; 1 Stra. 3. If the 
 conclusion be irregular, it will not vitiate the mUMni/us; and, therefore, if a commitment " till 
 further order," be made by a justioe, yet a breach of prison under such a warrant would be 
 
BINDING BY RECOGNIZANCE, Ac. 4-7—3 
 
 delivery, or superior court of a county palatine, or court of general or 
 quarter sessions of the peace,- at which the accused is to be tried, then and 
 
 an offence. And if the party were removed by habeas corpus, yet if the cause and manner 
 of his commitment be such as to require his detention in custody, or his rinding sureties, he 
 shall be bailed or committed accordingly, and' not discharged ; because the informal conclu- 
 sion will be rejected. Such a warrant would be a good justification in an action of false 
 imprisonment against the jailer, though the right conclusion be omitted, or the wrong con- 
 clusion inserted. It is a lawful warrant, notwithstanding the omission or incongruity of the 
 conclusion, so as to make the voluntary permission of an escape or the breach of prison, a 
 punishable offence. 1 Hale, 584. 
 
 No precise mode of introducing the statement of the offence appears to be material. 
 Either of the following forms will answer: " charged with feloniously assaulting," &c. or 
 "with having on," &c. or "charged with a misdeameanor, viz : with having," &c. or "for 
 that he the said A. B., on," &c. and then recite the complaint. Davis' J. 1 14. The latter is 
 decidedly the preferable form of introducing the statement of the crime for which the party 
 is to be committed. Id. ib. If the offence be against a statute, the description should close 
 with the words " contrary to the form of the statute in such case made and provided. " This, 
 indeed, will be only continuing the description of the offence in the complaint, if the com- 
 plaint be properly drawn ; for the description in all offences against penal statutes must con- 
 clude,- " contrary to the form of the statute (or statutes) in such case made and provided." 
 Id. ib. 
 
 The mittimus should state at the beginning, the style and jurisdiction of the justice, and 
 is directed to the constables of a town named therein, or to the sheriff or his deputy, and to 
 the keeper of the particular jail to which the justice intends the prisoner shall be committed ; 
 and commands the sheriff and constables to convey the prisoner into the custody of the jailer, 
 and the jailer to receive and keep him in the said jail until he shall be thence delivered by 
 due course of law. Davis' J. 114, 115. 
 
 It is the duty of the jailer to receive the party ; and if he refuse, or unlawfully demand any 
 thing for receiving him, it is an indictable offence. Dalt. J. u. 170 ; 1 Chit. Cr. L. 117 ; 1 T. 
 R. 60. If the jailer will not receive him, it is said the person who arrested him may, in such 
 case, keep the prisoner in his own house. 1 T. R. 60. The officer to whose custody he was 
 committed on the mittimus may, in such case, keep the prisoner until the jailer can be in- 
 duced or compelled to receive him. Davis' J. 115. 
 
 The constable is not to retain the warrant or commitment. It is to he handed over, with 
 the prisoner, to the jailer, as it is the jailer's authority for keeping him. But it is recom- 
 mended that the constable should get a receipt for the prisoner, from the jailer, and preserve 
 it; and that he should take and preserve a copy of the warrant. 1 Nun & Walsh, 419; 2 
 Hawk. c. 16, s. 9. 
 
 If the magistrate, acting within the scope of his authority and jurisdiction, but taking an 
 erroneous view of the effect of the evidence, should come to a wrong conclusion, and commit 
 the defendant, and he should be afterwards discharged by the higher court, on a habeas cor- 
 pus, yet the magistrate would not, on that account, be liable to an action of damages. 14 
 East, 82 ; 1 Chit. Cr. L. 95. But though the warrant of commitment be defective, the court 
 will not discharge the prisoner finally, on that account. 5 Cowen, 50, 58. 
 
 The jailer is protected from liability, though he should receive, by mistake of the consta- 
 ble, a person whom it was not intended to confine. 1 Chit. Cr. L. 60, 117 ; Cowp. 479. 
 
 When a person thus committed by a magistrate is advised that his commitment is illegal, 
 or that he is entitled to be discharged or bailed by a superior jurisdiction, he has a remedy 
 by writ of habeas corpus, or certiorari, and the proceedings thereon. 3 Black. Com. 131 ; 1 
 Chit. Cr. L. 118. Indeed, whenever a person is restrained of his liberty by being confined 
 in a common jail, or by a private person, whether it be for a civil or criminal cause, and it 
 is apprehended that the imprisonment is illegal, he may in general, by habeas corpus or cer- 
 tiorari, have his body and the proceedings under which he is detained, removed to some su- 
 
47 i THE EXAMINATION AND COMMITMENT, &c. 
 
 there to prosecute, or to prosecute and give evidence, or to give evidence, 
 as the case may be, against the party accused, which said recognizance 
 shall particularly specify the professions, art, mytery, or trade of every 
 such persons entering into or acknowledging the same, together with 
 his christian and surname, and the parish, township, or place of his 
 residence, and if his residence be in a city, town, or borough, the recog- 
 nizance shall also particularly specify the name of the street, and the 
 number (if any) of the house in which he resides, and whether he is 
 owner or tenant thereof, or a lodger therein, — and the said recogni- 
 zance, being duly acknowledged by the person so entering into the 
 same, shall be subscribed by the justice or justices before whom the 
 same shall be acknowledged, and a notice thereof, signed by the said 
 justice or justices, shall at the same time be given to the person bound 
 thereby ; — and the several recognizances so taken, together with, the 
 written information (if any,) the depositions, the statement of the accused, 
 and the recognizances of bail, (if any) in every such case, shall be de- 
 livered by the said justice or justices, or he or they shall cause the same 
 
 perior jurisdiction having authority to examine into the legality of the commitment; and on 
 the return, he will be either discharged or remanded. 1 Chit. Cr. L. 118; 2 R. S3- 563. 
 
 It has been said that where the offence is not set forth with sufficient certainty in the 
 warrant, the party will be entitled to be discharged, if brought up by habeas corpus. And 
 it seems that this holds, not only where no cause at all is expressed in the commitment, but 
 also where it is so loosely set forth that the court cannot judge whether it forms a reason- 
 able ground for the imprisonment or not. 1 Nun & Walsh, 408- ; 2 Hawk. ch. 16, § 16; 
 2 Inst. 52. But when an application is made by a prisoner to be bailed or discharged, it is 
 the practice of the court to look into the complaint and depositions, and not to discharge if 
 these show a sufficient ground for detaining the prisoner, even though the commitment be 
 informal. Id. 181, 408 ; 1 Leach, 210 ; Cald. 295 ; 3 East, 157 ; 1 Barn. & Cress. 258. So, 
 though the word " felony" or " feloniously" be not expressed in the warrant, yet if enough 
 appears from the facts set forth upon the face of the commitment, to show that the offence 
 charged is a felony, the court will deal with the prisoner as on a charge of felony. 2 T. R. 
 255; 1 Leach, 484; 2 Chit. Rep. 138. But although it is not essential to its validity, 
 where the commitment is for felony, that the words " felony" or " feloniously'' shall be in- 
 serted in it, if it appears from the facts stated therein to be in law a felony, yet it is conve- 
 nient, if the offence be a felony, so to state it, in order that the officer to whose charge the 
 prisoner is committed to be conveyed to prison, may be made acquainted with the limits 
 and extent of his powers. 1 Nun & Walsh, 409. 
 
 If a party has been improperly committed, the court will not make it » part of the rule 
 for granting a habeas corpus that he shall not bring an action against the magistrate. 3 Car. 
 & Payne, 225. See Barb. Cr. Law, page 568. et seq„ 
 
 In reference to the nature and purpose of this writ, see the remarks of Marshall, C. J. 
 Ex parte Tobias Watlcins, 3 Peters, 201, 202; 3 Story on Const. 206—209; 2 Kent Com. 
 2d ed. 26 — 32; United States Banle v. Jenkins, 18 John. 305; case of Teates, 4 ib. 364; 
 Sorry v. Mercien, 3 Hill, 399 ; People v. Cossets, 5 Hill, 635 ; Commonwealth v. Harrison, 11 
 Mass. 63; Commonwealth v. Briebett, 8 Pick. 138; Randall v. Bridge, 2 Mass. 553. 
 
 Convicts, or those in execution by legal process, civil or criminal, are not entitled to the bene- 
 fit of habeus corpus. Riley's case, 2 Pick. 172; Commonwealth v. Whitney, 10 Pick. 434. But 
 see Ex parte Kellogg, 6 Vermont, 509, as to habeas corpus in oases of fugitives from justice. 
 Ex parte Clarke, 9 Wendell, 212. 
 
BINDING BY RECOGNIZANCE, las. 47 — 5 
 
 to be delivered, to the proper officer of the court in which the 
 trial is to be had, before or *at the opening of the said court on [*48] 
 the first day of the sitting thereof, or at such other time as the 
 judge, recorder, or justice who is to preside in such court at the said 
 trial shall order and appoint: — Provided always, that if any such wit- 
 ness shall refuse to enter into or acknowledge such recognizances as 
 aforesaid, it shall be lawful for such justice or justices of the peace, by 
 his or their warrant, commit him to the common jail or house of cor- 
 rection, for the county, riding, division, liberty, city, borough, or place 
 in which the accused party is to be tried, there to be imprisoned and 
 safely kept until after the trial of such accused party, unless in the 
 meantime such witness shall duly enter into such recognizance as afore- 
 said before some one justice of the peace for the county, riding, divi- 
 sion, liberty, city, borough, or place in which such jail or house of cor- 
 rection shall be situate : — provided nevertheless, that if afterwards, from 
 want of sufficient evidence in that behalf or other cause, the justice or 
 justices before whom such accused party shall have been brought shall 
 not commit him or hold him to bail for the offence with which he is 
 charged, it shall be lawful for such justice or justices, or any other jus- 
 tice or justices of the same- county, riding, division, liberty, city, 
 borough, or place, by his or their order in that behalf, to order and 
 direct the keeper of such common jail or house of correction where 
 such witness shall be so in custody to discharge him from the same, 
 and such keeper shall thereupon forthwith discharge him accord- 
 ingly- [1] 
 
 [1] In this country, the recognizance of the prosecutor and witnesses is for his appear- 
 ance at the proper court to prosecute and give evidence on the part of the state. 
 
 In a late case, where a married woman refused to find surety in recognizance for her ap- 
 pearance at the sessions, to give evidence against a felon, and the magistrate committed 
 her, the court of king's bench held that the commitment was legal. 1 Chitty's Crim. Law, 
 p. 91. 
 
 Where the witness cannot find sureties, the magistrate ought to take his own recogni- 
 zance, and it would be illegal to commit the witness. 2 Stark. Evid. 82. 
 
 Where the witness was a married woman, and therefore incapable of entering into a re. 
 cognizance, it was held that the magistrate was justified in committing her on her refusal to 
 give evidence, or to find sureties for her appearance to give evidence. 3 M. & S. 1 ; Roscoe 
 on Crim. Evid. 8T. 
 
 The better opinion is, that a justice is not authorized to commit any witness for refusing 
 to find sureties to be bound with him, provided he be willing to enter into his own recog- 
 nizance. Taylor's Evid. p. 198 ; 2 Ch. Burn's Just. p. 122 ; 12 Ad. & Ell. Rep. p. 59. 
 
 In the state of New York, if it appears from the examination, that an offence has been 
 committed, and that there is probable cause to believe the prisoner to be guilty thereof, it 
 is the duty of the magistrate to bind by recognizance the prosecutor and all the material 
 witnesses against the prisoner to appear and testify at the next court having cognizance of 
 the offence, and in which the prisoner may be indicted. Whenever the magistrate shall be 
 satisfied, by due proof, that there is good reason to believe that any such witness will not 
 fulfil the condition of such recognizance, unless security be required, he may order such 
 witness to enter into a recognizance, with such sureties as he shall deem meet, for his ap 
 
 " 18 
 
48 THE EXAMINATION AND COMMITMENT, &c. 
 The following are the forms required by the above section : 
 Recognizance to Prosecute or give ^Evidence. 
 ■ : Be it remembered, that on the day of , in the year 
 
 of our Lord , C. D. of , in the township of. , in the said 
 
 county, [farmer,] [or C. D. of No. 2, street, in the parish of , 
 
 in the borough of , [surgeon,] of which said house he is tenant,] 
 
 personally came before me, one of Her Majesty's justices of the peace 
 for the said county, and acknowledged himself to owe to our sovereign 
 
 lady the Queen, the sum of £ , of good and lawful money of Great 
 
 Britain, to be made and levied of his goods and chattels, lands and 
 tenements, to the use of our said lady the Queen, her heirs and succes- 
 sors, if he the said C. D. shall fail in the condition indorsed. 
 
 Taken and acknowledged, the da^ and year first above mentioned, 
 at , before me. J. S. 
 
 Condition to Prosecute. 
 
 The condition of the within-written recognizance is such, that 
 whereas one A. B. was this day charged before me, J. S., 
 [*49] *justice of the peace within mentioned, for that [&c, as in the 
 caption of the depositions,] if therefore the said 0. D. shall appear 
 at the next court of oyer and terminer or general jail delivery [or at 
 the next court of general quarter sessions of the peace] to be holden in and 
 for the [county] of — — ■*, and there prefer or cause to be preferred a 
 bill of indictment for the offence aforesaid against the said A. B., and 
 there also duly prosecute such indictment, then the said recognizance 
 to be void, or else to stand in full force and virtue. 
 
 pearance at such court. 2 R. S. 109, §§ 21, 22. Infants and married women being mate- 
 rial witnesses, may in like manner be required to procure sureties for their appearance at 
 such court. Id. § 23. 
 
 If any witness so required to enter into a recognizance, either with or without sureties, 
 shall refuse to comply with such order, it is the duty of the magistrate to commit him to 
 prison until he shall comply with such order, or be otherwise discharged according to law. 
 2 R. S. 709, § 24. 
 
 A recognizance is an obligation of record entered into before a magistrate duly author- 
 ized for that purpose, with condition to appear at some court named therein. Dick. J. Re- 
 cognizance; 3 Binn. R. 431. Recognizances taken before magistrates under the above 
 provisions of the statute, must be in writing, and subscribed by the parties to be bound 
 thereby. 2 R. S. 146, § 24. 
 
 A recognizance, containing the condition required by the statute, that the obligor will 
 appear and testify at the next court having cognizanoe of the offence, &c will not be vitiated 
 by the addition of the words " as well to the grand as the petit jury, and not depart the 
 said court without leave." 5 Barb. 611. A recognizance for the appearance of witnesses 
 to testify on the trial of an indictment must contain an acknowledgment of indebtedness 
 to the people, and mention the offienoe charged ; or no action can be maintained upon it. 6 
 Hill, 606. 
 
BINDING BY KECOGNIZANOE, &c. 49 
 
 Condition to prosecute and give evidence. 
 
 Same as the last form to the asterisk,* and then thus; — " and there 
 prefer or cause to be preferred a bill of indictment against the said A. 
 B., for the offence aforesaid, and duly prosecute such indictment, and 
 give evidence thereon as well to the jurors who shall then inquire of 
 the said offence, as also to them who shall pass upon the trial of the 
 said A. B., then the said recognizance to be void, or else to stand in 
 full force and virtue." 
 
 Condition to give Evidence. 
 
 Same as to the last form but one to the asterisk,* and then thus: — 
 and there give such evidence as he knoweth upon a bill of indictment 
 to be then and there "preferred against the said A. B. for the offence 
 aforesaid,, as well to the jurors who shall there inquire of the said of- 
 fence, as also to the jurors who shall pass upon the trial of the said A. 
 B., if the said bill shall be found a.true bill, then the said recognizance 
 to be void, or else to stand in full force and virtue." 
 
 Notice of the said Recognizance to he given to the Prosecutor and his 
 
 Witnesses. 
 
 ) Take notice, that you C. D., of , are bound in the sum 
 
 to wit: ) of- — — ■, to appear at the next court of [general quarter ses- 
 sions of the peace'] in and for the county of , to be holden at , 
 
 in the said county, and then and there [prosecute and] give evidence 
 against A. B. ; and unless you then appear there, and [prosecute and] 
 give evidence accordingly, the recognizance entered into by you will 
 
 be forthwith levied on you. Dated this day of , 185 — . 
 
 J.S.£1] 
 
 * Commitment of Witness for refusing to enter into the Recogni- [*50] 
 
 zance. 
 
 To the constable of and to the keeper of the [house of correc- 
 tion] at , in the sai&,[county] of . 
 
 Whereas A. B. was lately charged before the undersigned, [one] of 
 her majesty's justices of the peace in and for the said [county] of , 
 
 [1] All recognizances for the appearance of the prosecutor and witnesses, and of the de- 
 fendant at the proper court, must be certified and returned, by the magistrate taking them, 
 to the court at its then present or next term or session. 
 
 The recognizances are" generally delivered by the magistrate to the clerk of the court.; 
 or, it may be, to the attorney general of the state, or his assistant or deputy, or the prosecu- 
 cuting attorney of the county. 
 
 If the magistrate refuses or neglects to return to the proper court any such recognizance, 
 he may be compelled, by rule of court, forthwith to return the same, And in case of dis- 
 obedience to such rule, he may be proceeded against by attachment, as for a contempt of 
 court. See N. T. E. S. vol. 2, p. 709. s. 26 and 27 ; ib. p. 534, s. 1, sub. 7. 
 
50 THE EXAMINATION AND COMMITMENT, Ac. 
 
 for that [dec, as in the summons to the witness,] and it having been made 
 to appear to [me] upon oath, that E. F., of — — , was likely to give ma- 
 terial evidence for the prosecutiop, [/] duly issued [my summons to the 
 
 said & F., requiring him to he and appear] before [me] on , at-- — , 
 
 or before such other justice or justices of the peace as should then be 
 there to testify what he should know concerning the said charge so 
 made against the said A. B., as aforesaid ; and the said E. F. now ap- 
 pearing before [me,] [or being brought before [me] by virtue of a warrant in 
 that behalf to testify as aforesaid,] hath been now examined by [me] touch- 
 ing the premises, but being by [me] required to enter into a recogni- 
 zance conditioned to give evidence against the said A. B., hath now 
 refused so to do : these are therefore to command you the said consta- 
 ble to take the said E. E., and him safely to convey to the [house of 
 
 correction] at , in the [county] aforesaid, and there deliver him to the 
 
 said keeper thereof, together with this precept ; and I do hereby com- 
 mand you the said keeper of the said [house of correction] to receive the 
 said E. F. into your custody in the said [house of correction,] there to im- 
 prison and safely keep him until after the trial of the said A. B. for the 
 offence aforesaid, unless in the meantime such E. F. shall duly enter 
 
 into such recognizance as aforesaid, in the sum of pounds, before 
 
 some one j ustice of the peace for the said [county,] conditioned in the 
 usual form to appear at the next court of [oyer and terminer or general 
 jail delivery, or general quarter sessions of the peace,] to be holden in and 
 
 for the [county] of , and there to give evidence before the grand 
 
 jury upon any bill of indictment which may then and there be prefer- 
 red against the said A. B. for the offence aforesaid, and also to give evi- 
 dence upon the trial of the said A. B., for the said offence, if a true 
 bill should be found against him for the same. 
 
 Given under my hand and seal, this -■ day of , in the year 
 
 of our Lord — : — , at , in the [county] aforesaid. 
 
 Subsequent Order to discharge the Witness. 
 
 To the keeper of the [house of correction] at , in the [county] 
 
 of . , 
 
 Whereas, by, [my] order dated the day of — ' — , [instant,] 
 
 [*51] *reciting that A. B. was lately before then charged before [me] 
 for a certain offence therein mentioned, and that E. F. having 
 appeared before [me,] and being examined as a witness for the prose- 
 cution in that behalf, refused to enter into a recognizance to give evi- 
 dence against the said A. B., and [I] therefore thereby committed the 
 said E. F. to your custody, and required you safely to keep him until 
 after the trial of the said A. B. for the offence aforesaid, unless in the 
 meantime he should enter into such recognizance as aforesaid ; and 
 whereas, for want of sufficient evidence against the said A. B. the said 
 
0OPT OF DEPOSITIONS FOR DEFENDANT. 51 
 
 A. B. has not been committed or holden to bail for the said offence, 
 but on the contrary thereof has been since discharged, and it is there- 
 fore not necessary that the said E. F." should be detained longer in 
 your custody : these are therfore to order and direct you the said keep- 
 er to discharge the said E. F. out of your custody as to the said com- 
 mitment, and suffer him to go at large. 
 
 Given under [my] hand and seal, this day of , in the year 
 
 of our Lord , at , in the county aforesaid. 
 
 J. S. [L.S.] 
 
 (7c) Copy of depositions for defendant. 
 
 At any time after all the examinations have been completed, and 
 before the first day of the assizes or sessions or other first sitting of the 
 court at which a person committed to prison or admitted to bail is to 
 be tried, such person may require and shall be entitled to have, of and 
 from the officer or person having the custody of the same, copies of the 
 depositions on which he shall have been committed or bailed, on pay- 
 ment of a reasonable sum for the same, not exceeding at the rate of 
 three-halfpence for each folio of ninety words. [1] 
 
 2. Examination and Commitment where the Arrest is in a different County 
 ' from that in which the Offence was committed. 
 
 (a) Warrant, if evidence prove the charge. 
 
 Whenever a person shall appear or shall be brought before a justice 
 of the peace, charged with, an offence alleged to have been committed 
 by him in any county, or place within England or Wales wherein such 
 justice shall not have jurisdiction, it shall be lawful for such justice, 
 and he is hereby required, to examine such witnesses, and receive such 
 evidence in proof of such charge as shall be produced before him ; and 
 if in his opinion such testimony and evidence shall be sufficient proof of 
 the charge made against such accused party, such justice shrill 
 thereupon commit him to the common jail or house of *correc- [*52] 
 tion for the county, riding, division, liberty, city, borough, or 
 place where the offence is alleged to have been committed, or shall 
 admit him to bail, as herein-after mentioned, and shall bind over the 
 prosecutor (if he have appeared before him or them) and the witnesses 
 by recognizance accordingly, as is herein-before mentioned. (a)[2] 
 
 (a) 11 &12 Viet. c. 42, s. 22. 
 
 [I] According to Mr. Chitty, the party accused has not, in cases of treason and felony, a 
 right to demand a copy of the depositions. 1 Ohitty's Cr. Law, p. 81. He may, however, 
 compel their production, by serving the magistrate with a subpoena to produce them. 
 
 [2] Criminal prosecutions are local in their nature, and at common law must be tried in 
 
52 THE EXAMINATION AND COMMITMENT, &0. 
 
 (b) Warrant, ifevidenee do not prove the charge. 
 
 But if such testimony and evidence shall not in the opinion of such 
 justice be sufficient to put the accused party upon his trial for the 
 offence with which he is so charged, then such justice shall bind over 
 such witnesses as he shall have examined, by recognizance, to give 
 evidence, as hereinbefore is mentioned, and such justice shall, by war- 
 rant under his hand and seal, order such accused party to be taken be- 
 fore some justice of the peace in and for the county, riding, division, 
 liberty, city, borough, or place where, and near unto the place where, 
 the offence is alleged to have been committed, and shall at the same 
 time deliver the information and complaint, and also the depositions 
 and recognizances so taken by him to the constable who shall have the 
 
 the county where they are committed. Generally, the prosecution for an offence can only 
 be before a court or magistrate whose jurisdiction extends over the place where it was com- 
 mitted, as it is only before such a court that it can be tried and punished. Even at common 
 law, however, justices of the peace might cause to be apprehended in thair proper counties, 
 and on examination to be committed tp jail there, persons guilty of offences done in another 
 county, to which they might be afterwards removed by habeas corpus for trial. But a par- 
 ticular mode of proceeding, in such cases, has been provided by statute, in the several states ; 
 either by authorizing warrants issued in one county to be backed by magistrates in another 
 county, and to be executed there, and directing what course shall be pursued thereon ; or 
 by allowing the process to be executed anywhere in the state. 
 
 So far as the nature of the offence is concerned, the jurisdiction of a justice, for the pur- 
 pose of receiving complaints and issuing warrants to apprehend offenders, is without limit. 
 2 R. S. 590, s. 1, et seq. And this is the doctrine of the common law. 4 Black. Com. 290 ; 
 1 Chit. Cr. L. 34, 35. And if the offender is brought before the justice, he has a right, both 
 at common law (see 4 Black. Com. 290 ; 1 Chit. Cr. L. 75,) and by statute, (2 R. S. 590, 591, 
 592,) to examine, and in a proper case, to commit him. He may issue process -for the arrest 
 of offenders, where the crime was committed in his county, although the criminal may have 
 escaped into another county. 2 R. S. 706, s. 1 to 5. In The People v. Cassels, (5 Hill, 169,) 
 Branson, J. says, " and possibly he may issue process when the offender ,is in his county, 
 although the crime was committed elsewhere ; we are, however, inclined to a different opin- 
 ion. But it is not now necessary to settle that question." The opinion thus intimated by the 
 learned judge seems contrary to the doctrine generally laid down by English writers. . For 
 although it be generally true that a justice has no jurisdiction over offences committed out 
 of his county, yet there are cases where the presence of an offender within his county gives 
 him authority, at common law, to proceed against sueh offender; and there are also numer- 
 ous cases in which, by the special provisions of particular statutes, the justice has jurisdic- 
 tion respecting the offences therein specified, though committed out of his county. 1 Nun 
 & Walsh, 49. Thus, it has been long settled that if a man commit a felony in one county, 
 and go into another county, a justice of the latter county may, upon information given, issue 
 a warrant to apprehend him, and take his examination, and the information against him ; 
 and may commit him to the jail of such latter county, and bind over the witnesses to give 
 evidence at the trial, and in short may proceed as if the offence had been committed within 
 his jurisdiction. 1 Nun & Walsh, 50; 1 Hale, 580; 3 Burn, 553. Upon the same princi- 
 ple, it has been decided that a justice may proceed with respect to a man coming into his 
 county, after having committed a felony on the high seas; and may commit such person for 
 trial at the next oyer and terminer to be held for the jurisdiction of the admiralty, &c. Sex 
 v. MuOmm, Park. 241; 2 Hawk. P. 0. c. 8, s. 33, note; 3 Burn, 553; Chit. Cr. L. 94; Com. 
 Dig. Justices of Peace, B. 1. 
 
COSTS OF CONSTABLE. 52—1 
 
 execution of such last-mentioned warrant, to be by him delivered to 
 the justice or justices before whom he shall take the accused in obe- 
 dience to the said warrant ; and which said depositions and recogni- 
 zances shall be deemed to be taken in the case, and shall be treated to 
 all intents and purposes as if they had been taken by or before the 
 said last-mentioned justice, and shall, together with such depositions 
 and recognizances as such last-mentioned justice shall take in the mat- 
 ter of such charge against the. said accused party, be transmitted to the 
 clerk of the court where the said accused party is to be tried, in the 
 manner and at the time herein-before mentioned, if such accused party 
 shall be committed for trial upon the said charge, or shall be admitted 
 to bail, (a) 
 
 The following is the form of the 
 
 Warrant to convey the Accused hefore the Justice of the County, &c, in 
 which the Offence was committed. 
 
 To W. T., constable of , and to all other peace officers in the 
 
 said [county] of . 
 
 Whereas A. B., of , [laborer,] hath this day been charged before 
 
 the undersigned, [one] of Her Majesty's justices of the peace in and for 
 
 the said county of , for that [&c, as in the warrant to apprehend .-] 
 
 and whereas [/] have taken the deposition of CD., a witness exam- 
 ined by [me] in this behalf; but in as much as [1] am informed that 
 the principal witnesses to prove the said offence, against the 
 *said A. B v reside in the [county] of C, where the said offence [*53] 
 is alleged to have been committed : these are therefore to com- 
 mand you the said constable, in Her Majesty's name, forthwith to take 
 and convey the said A. B. to the said [county] of C, and there carry 
 him before some justice or justices of the peace in and for that [county^] 
 and near unto the [parish of D. : ] where the offence is alleged to have 
 been committed, to answer, further to the said charge before him or 
 them, and to be further dealt with according to law : and [/] hereby 
 further command you the said constable to deliver to the said justice 
 or justices the information in this behalf, and also the said deposition 
 of C. D., now given into your possession for that purpose, together 
 with this precept. 
 
 Given under my hand and seal, this day of , in the year of 
 
 our Lord , at , in the [county] aforesaid. 
 
 J J. S. [L. S.] 
 
 (c) Costs of Constable. 
 In case such accused party shall be taken before the justice last 
 (a) 11 &12 Yict. 0.42, s. 22. 
 
53 THE EXAMINATION AND COMMITMENT, &c. 
 
 aforesaid by virtue of thesaid last-mentioned warrant, the constable or 
 otber person to whom tbe said warrant shall have been directed, and 
 who shall have conveyed such accused party before such last-mentioned 
 justice, shall be entitled to be paid his costs and expenses of conveying 
 the said accused party before the said justice ; and upon the said con- 
 stable or other person producing the said accused party before such 
 justice, and delivering him into the custody of such person as the said 
 justice shall direct or name in that behalf, and upon the said constable 
 delivering to the said justice the warrant, information (if any,) deposi- 
 tions, and recognizances aforesaid, and proving by oath the handwriting 
 of the justice who shall have subscribed the same, such justice to whom 
 the said accused party is so produced shall thereupon forthwith ascer- 
 tain the sum which ought to be paid to such constable or other person 
 for conveying such accused party and taking him before such justice, 
 as also his reasonable costs and expenses of returning, and thereupon 
 such justice or justices shall make an order upon the treasurer of the 
 county, riding, division, or liberty, city, borough, or place, or if such 
 city, borough, or place shall be contributory to the county rate of any 
 county, riding, division, or liberty, then upon the treasurer of such 
 county, riding, division, or liberty respectively to which it is contribu- 
 tory, for payment to such constable or other person of the sum so 
 ascertained to be payable to him in that behalf, and the said treasurer, 
 upon such order being produced to him, shall pay the amount to the 
 said constable, or other person producing the same, or to any person 
 who shall present the same to him for payment' : provided always, that if 
 
 such last-mentioned justice shall not think the evidence against 
 [*54] such accused party sufficient to put him upon his trial, *and 
 
 shall discharge him without holding him to bail, every such 
 recognizance so taken by the said first-mentioned justice or justices as 
 aforesaid shall be null and void.(a) 
 
 The following is the form of the 
 
 Order for Payment of the Constable's Expenses. 
 
 To R. W. esquire, treasurer of the county of ■ 
 
 Whereas "W. T., constable of , in the county of , hath by 
 
 virtue of and in obedience to a certain warrant of J. S. esquire, [one] 
 of- Her Majesty's justices of the peace in and for the said county of 
 
 , taken and conveyed one A. B., charged before the said J. S., 
 
 with having [<£&, stating shortly the offence,'] from , in the said 
 
 county of , to , in the said county of , a distance of 
 
 miles, and produced the said A. B. before me S. P., one of Her Ma- 
 tes) 11 & 12 Yiot. o. 42, s. 22. 
 
HOW, WHERE THE ARREST IS UNDErW BACKED "WARRANT. 54 
 
 jesty's justices of the peace in and for the said county of , and de- 
 livered him into- the custody of by [my] direction, to answer to 
 
 the said charge, and further to be dealt with according to law : and 
 whereas the said W. T. hath also delivered to [me] the said warrant, 
 together with the information in that behalf, and also the, deposition of 
 C. D. in the said warrant mentioned, and hath proved to [me] upon 
 path the hand writing of the said J. S. subscribed to the same: and 
 whereas [/] have ascertained that the sum which ought to be paid to 
 the said W. T. for conveying the said A. B. from the said county of 
 
 ■, to the said county of , and taking him before [me,] is the sum 
 
 of , and that the reasonable expenses of the said "W". T. in return- 
 ing will amount to the farther sum of , making together the sum 
 
 of ■ : these are therefore to order you as such treasurer of the said 
 
 county of ■ , to pay unto the said W. T. the said sum of , ac- 
 cording to the form of the statute in such case made and provided, for 
 which payment this order shall be your sufficient voucher and authority. 
 Given under my hand, this day of , 185 — . S. P. 
 
 (d) How, where the arrest is under a bached warrant. 
 
 Where the accused is arrested upon a backed warrant, the constable, 
 if he be not then prepared with any evidence against him, will take 
 him before the justice who first issued the warrant, to be dealt with„as 
 above or herein-before is mentioned. But if at the time of the arrest, 
 the prosecutor, or any of the witnesses upon the part of the prosecu- 
 tion, shall then be in the county or place, where such person 
 shall have been apprehended, the *constable or other person [*55] 
 who shall have so apprehended such person may, if so directed 
 by the justice backing such warrant, take and convey him before the 
 justice who shall have so backed the said warrant, or before some other 
 justice or justices of the same county or place ; and the said justice 
 or justices may thereupon take the examinations of such prosecutor or 
 witnesses, and proceed in every respect in manner above directed with 
 'respect to persons charged before a justice or justices of the peace with 
 an offence alleged to have been committed in another county or place 
 than that in which such persons have been apprehended.(a) 
 
 3. Bail.[l] 
 
 (a) In treason. 
 No justice or justices of the peace shall admit any person to bail for 
 
 (a) 11 & 12 Vict. o. 42, s. 11. 
 
 [1] The magistrate having heard the examinations, and ascertained that the party accused 
 is not entitled to be completely discharged, is next to determine whether he will bail or com- 
 mit him. 
 
 19 
 
55 I'HE EXAMINATION AND COMMITMENT, 4c. 
 
 treason, nor shall such person be admitted to bail, except by order of 
 one of Her Majesty's secretaries of state, or by Her Majesty's court of 
 Queen's Bench at Westminster, or a judge thereof in vacation,(a)[2] 
 
 (a) 11 & 12 Vict. o. 42, s. 28. 
 
 Bail is a delivery of a person to his sureties, upon their giving, together with himself, suf- 
 ficient security for his appearance at court to answer the charge against him ; he being sup- 
 posed to continue in their friendly custody, instead of going to prison. In most of the in- 
 ferior offences, bail will answer the Same intention as commitment, and therefore it ought to 
 bo taken. But in offences of a capital nature, no bail can be security equivalent to the ac- 
 tual custody of the person. There is nothing that a man may not be induced to forfeit, to 
 save his life; and it is no satisfaction or indemnity to the public, to seize the effects of those 
 who have bailed a murderer, if the murderer himself be suffered to escape with impunity. 4 
 Black. Com. eh. 22. 
 
 [2] Authority is given by acts of congress, to take bail for any such crime or offence, ex- 
 cept where tho punishment is death, to any judge of the United States, and to any chancel- 
 lor, judge of the supreme or superior court, or first judge of any court of common pleas, 
 mayor of a city, in any state, and any justice of the peace or other magistrate of any state, 
 where the offender may be found ; the recognizance taken by any of the persons authorized 
 to be returned to the courts of the United States having cognizance of the offence; and" on 
 refusal to enter into such recognizance, the magistrate" may imprison the person so refusing. 
 Act of Congress, of Sept. 24, 1789, s. 33, and Act of Congress, of March 2, 1793, a. 4. 
 
 "When the punishment of an offence by the laws of the United States is death, bail can 
 only be taken by the federal courts, or one of the judges thereof. 
 
 A person committed by a judge of a court of the United States, for an offence not pun- 
 ishable with death, may, if there be no judge of the United States in tho district, be admitted 
 to bail by a state judge. 
 
 In all cases of crimes and offences not capital, but subject to infamous punishment by the 
 laws of the United States, a state magistrate, on the arrest of the offender, may take bail. 
 
 Where a judge of the United States has committed, no judge of a state has authority to 
 interpose, in order to discharge on bail, except there is no judge of the United States in the 
 district. 3 Binn. 515. 
 
 When the commitment is by a state judge, tho law does not prohibit the bailing by a state 
 judge; such power is included in the general authority to imprison or admit to bail; there 
 is a reason for such authority, as commitments may sometimes be made either for want of 
 bail, which is afterwards offered, or there may be a hasty commitment by an inferior magis- 
 trate requiring re-consideration. In such cases, it would be a grievance to have no relief 
 but by a district judge of the United States. 5 Binn. 515. M'Kin. Am. Mag. 255—256. 
 
 In the state of New York, justices of the peace are authorized to let offenders to bail in 
 all cases of felony, where the imprisonment in the state prison cannot exceed five years. 2 
 N, T. Rev. Stat, 710, sec. 29. The court of oyer and terminer held in any county, also has 
 power to let to bail any person committed, before indictment found, upon any criminal charge 
 whatever. And the court of sessions has a similar power as to any offences triable in such 
 court. Barb, Cr, L, p. 577. 
 
 In Pennsylvania, by act of assembly, "all prisoners shall be bailable, by one or more 
 sufficient sureties, to be taken by one or more of the judges or justices that have cognizance 
 of the fact, unless for such offences as are or shall be made felonies of death, by the laws of 
 the province." Act of 1 705 ; 1 Smith's Laws, p. 56 ; M'Kin. Dig. 713. Murder of the first 
 degree is the only offence punishable with death. 
 
 Where a capital felony is charged, and the proof is evident, or the presumption great, no 
 power exists any where to admit to bail. 2 Ashm. Rep. 233. 
 
 The practice has always been to take bail under the act of 1705, which has remained in 
 force, as well in misdemeanors as in felonies, except in capital cases. 6 Watts & S. 314. 
 
IN FELONY AND CERTAIN MISDEMEANORS. 55—1 
 
 (&) In felony and certain .misdemeanors. 
 
 Where any person snail appear or be brought before a justice of the 
 peace, charged with a felony, or with an assault with intent to commit 
 a felony, or with an attempt to commit a felony, or with obtaining or 
 attempting to obtain property by false pretences, or with a misdemeanor 
 in receiving property stolen or obtained by false pretences, or with 
 perjury or subornation of "perjury, or with concealing the birth of a 
 child by secret burying or otherwise, or with wilful or indecent expo- 
 sure of the person, or with riot, or with assault in pursuance of a con- 
 spiracy to raise wages, or assault upon a peace officer in the execution 
 of his duty, or upon any person aeting in his aid, or with neglect or 
 
 A safe rule, where a malicious homicide has been charged, is to refuse bail in all cases 
 where a judge would sustain a capital conviction, if pronounced by a jury upon such evi- 
 dence as has been -exhibited to him on the hearing of the application to admit to bail ; and 
 in instances where the evidence for the commonwealth is of less efficacy, to admit to bail 
 Hence, where a judge is satisfied that the offence, at most, is only murder in the second de- 
 gree, the prisoner is entitled to be liberated on bail. 1 Ashm. 227. 
 
 It is good cause for admitting to bail a prisoner confined to a close jail upon an indict- 
 ment for murder, that he is laboring under a, present, painful, severe and dangerous disease, 
 caused by his imprisonment, and likely to be so aggravated by a continuance of it as proba- 
 bly to terminate fatally. 11 Leigh, 665. 
 
 In Pennsylvania, justices of the peace may take bail for the appearance of persons ac- 
 cused, generally, in cases of all crimes and misdemeanors, to answer at the proper court, ex- 
 cept in cases of treason, homicide, robbery, burglary, buggery, horse-stealing, arson and 
 rape ; in which latter cases on'e of the judges of the supreme court, or the president of the 
 court of common pleas, is alone authorized to take bail. 1 Smith's Laws of Penn. 131 ; 2 
 id. 531; 4 id. 334; 2 Penn. Black. 403; M'Kinney's Dig. 724. 445, 716. 
 
 New York. — A prisoner arrestee!, under a warrant issued pursuant to statute, (R. S. 707,) 
 for an offence punishable by state prison, cannot be admitted to bail in the county where 
 the arrest was made, but must be taken back to the county where the warrant was issued. 
 6 Hill, 340. 
 
 Ohio — The magistrate, whether judge or justice of the peace, when he holds the exami- 
 nation, is authorized to take bail of the accused, and the recognizances of the witnesses. 
 "Walker's Introd. p. 624. 
 
 In general, in the several states, the magistrates before whom the examination is had, 
 may take bail, in all cases,, except those punishable capitally. 
 
 In Virginia, a justice may bail a prisoner charged with felony, if only a slight suspicion 
 of guilt attaches to him. 5 Rand. 711. 
 
 In Connecticut, a. sheriff may take bail of a prisoner, committed by a justice, for not find- 
 ing sureties, and release him from confinement. 2 Day, 1. 
 
 A justice of the peace has no authority to take the recognizance of a prisoner, while in the 
 custody of the officer under a mittimus issued by another justice for want of sureties for his 
 appearance at court, and before his commitment to prison. 8 Greenl. Maine Rep. 390. 
 
 A justice cannot admit to bail a prisoner committed by another justice; and a recogni- 
 zance in such case is void. 13 Pick. 86. 
 
 Indiana. — If a person charged with a felony voluntarily appear before an associate judge, 
 and enter into recognizance with sureties for his appearance, 4c, the recognizanco is valid, 
 though the affidavit on which it was founded was taken before a justiee of the peaeo. 1 
 Blackf. Rep. 200. 
 
 Mississippi. — A sheriff has no power to admit to bail in criminal cases. 1 Miss. 546. 
 M'Kinney's Am. Mag. p. 255. 
 
55 — 2 THE EXAMINATION AND COMMITMENT, 4a. 
 
 breach of duty as a peace officer, or with any misdemeanor for the 
 prosecution of which the costs may be allowed out of the county rate, 
 such justice of the peace may, in his discretion, admit such person to 
 bail, upon his procuring and producing such surety or sureties as in the 
 opinion of such justice will be sufficient to ensure the appearance of 
 such accused person at the time and place when and where he is to be 
 tried for such offence ; and thereupon such justice shall take the recog- 
 nizance of the said accused person and his surety or sureties, condition- 
 ed for the appearance of such accused person at the time and place 
 of trial, and that he will then surrender and take his trial, and not 
 depart the court without leave.(a)[3] 
 
 (a) 11 & 12 Tict. c. 42, =. 23. 
 
 [3] The duty of magistrates in relation to the taking of bail, ia extremely important ; requir- 
 ing the exercise of great judgment and firmness. The two extremes of demanding exces- 
 sive and of accepting insufficient bail, should be equally avoided; and in many cases. the 
 justice may be exposed to the censure of the public or of individuals, if he transcends or 
 falls short of his duty in either of these respects. Davis' J. 83. But wherever he has 
 authority under the statute, to take bail from the person accused, he is bound to do so, in case it 
 is offered ; and he has no discretion on the subject,' except as to the amount of the bail and 
 the responsibility of the sureties. It has been determined that a prisoner arrested in another 
 county, upon an indorsed warrant, for an offence punishable by imprisonment in the state 
 prison, cannot be let to bail in the county where the arrest is made, but must be taken back 
 to the county in which the warrant was issued. 6 Hill, 344. 
 
 To refuse or delay to bail any person who is entitled to bail, is an offence at common 
 law against the liberty of the subject, and for which the magistrate is also liable in damages 
 to the party injured. It was also made punishable by ancient English statutes. ' 1 Nun & 
 "Walsh, 398 ; 2 Hawk. oh. 15, § 13 ; 3 Bos. & Pul. 551 « Davis' J. 83 ; See 3 Edw. 1, St. 2, 
 ch. 15, and 31 Car. II. And lest the intention of the law should be frustrated by magis- 
 trates, it is expressly declared by statute, 1 William and Mary, that excessive bail ought not 
 to be required. And there is a similar provision in our statute, which declares that "exces- 
 sive bail ought not to be required, nor excessive fines imposed, nor cruel nor unusual punish- 
 ments inflicted." 1 R. S. 94, § 11. What bail should be called excessive, must be left to 
 the magistrate to determine, on considering the circumstances of the ease. And on the 
 other hand, if the magistrate takes insufficient bail, he is liable to be fined if the criminal 
 does not appear ; but if he does appear, according to the condition of the recognizance, those 
 who admitted him to bail are safe ; inasmuch as the end of the law is answered whenever 
 the appearance of the prisoner is in fact procured. 2 Hawk. ch. 15, § 6 ; Davis 1 J. 83. 
 
 It is also an offence at common law, for a magistrate to grant bail where it ought to be 
 denied; and it is punishable as a negligent escape. 2 Hawk. ch. 15, § 6 ; 1 Nun & Walsh, 
 39 9. It has been decided that it is no excuse for justices of the peace admitting a person 
 to bail who was committed for an offence not bailable by law, that they did not know he was 
 committed for such offence; for that they ought to inform themselves, at their peril, of the 
 cause for which the party was committed, that they might thereby be satisfied that he was 
 bailable bylaw. The magistrate is not bound to demand bail, or that the person to be bail- 
 ed shall find sureties ; nor is he bound to forbear committing the party, till he shall refuse 
 to find sureties; but may justify a commitment, unless the party himself shall tender his 
 sureties. 2 Strange, 1216; 2 Hawk. ch. 15, §§ 12, 14; 2 Hale, 123. 
 
 The recognizance should be for such an amount, as will be likely to secure a compliance 
 with its conditions. The justice ought, therefore, in determining its amount, to take into 
 consideration the nature of the offence, and the character and property of the defendant. A 
 
IN FELONY AND CERTAIN MISDEMEANORS. 55 — 3 
 
 The following is the form of the 
 
 * Recognizance of Bail. [*56] 
 
 Be it remembered, that on the day of , in the year 
 
 of our Lord , A. B. of , laborer, L. M., of , grocer, and 
 
 N. 0. of , butcher, personally came before [us] the undersigned, 
 
 two of Her Majesty's justices of the peace for the said [county,] and 
 severally acknowleged themselves to owe to our lady the Queen the 
 several sums following ; that , is to say, the said A. B. the sum of 
 , and the said L. M. and N. 0. the sum of each, of good. and 
 
 wealthy individual, charged with a penitentiary offence, would forfeit hi3 recognizance, if the 
 amount were not such as would be oppressively large, when required of a poor and obscure 
 individual. If, by the commission of a crime, the accused has obtained property, and re- 
 tains it, the justice should require a recognizance at least for a larger amount than the value 
 of such property. The offender should not be permitted to make the crime itself an instru- 
 ment for his escape. The amount should not be oppressive, but never so small as to hold 
 out an inducement to the accused to forfeit his recognizances. Swan' s Justice, p. 483. 
 
 In Pennsylvania, the amount of the bail is fixed by the magistrate, before whom it is 
 taken, in his discretion. It is to be determined from a regard to the nature of the alleged 
 offence, its punishment, the standing and property of the person charged, and the circum- 
 stance of the case. The usual custom in similar cases ought to be considered. The amount 
 of the defendant's recognizance is, in general, not less than a hundred dollars, even in com- 
 mon assault and battery, or any misdemeanor. 
 
 In cases of aggravated assault and battery, or with intent to kill, or commit a crime or 
 offence, the amount of bail should be larger. 
 
 In a case of a conspiracy to cheat, the defendants were required to enter into, recogni- 
 zances, with two sureties, each in the turn of $10,000. So, also, in a case of a charge for a 
 .conspiracy to procure abortion. And so likewise, on a charge of a conspiracy to commit a 
 rape. 
 
 In a case of forgery the defendant was held in recognizance with one surety, in the sum 
 of $1000. 
 
 For an alleged larceny of $20 bail was required in $500. 
 
 On a charge for uttering and passing a false writing, and obtaining thereby property of 
 great value under false pretences, the accused was held to bail in $2000. 
 
 Defendants charged with a conspiracy to cheat and defraud two persons out of $500 each, 
 were held each in $600 to answer for the offence. 
 
 A person was required to find surety in $300 to answer a charge for uttering and passing 
 a false check for $20 35, with intent to defraud. 
 
 To answer a complaint for obtaining $50 by false pretences, a defendant was ordered to 
 find bail in $300. 
 
 In the case of a charge of publishing a libel on an individual, in a public newspaper, the 
 two defendants were obliged to enter into recognizance in the sum of $1000 to appear at 
 court for trial. 
 
 One accused of obtaining $218 -by fal-e pretences, was held to bail in $100. 
 
 The sureties ought to b6j at least, two men of ability, but whose sufficiency is left to the 
 discretion of the magistrate, and, therefore, he may examine them, upon oath, as to the value 
 of their property. And every one of the bail ought to be. of ability to answer the sum in 
 which he is bound." 1 Ohitty's Crira. Law, p. 99. 
 
 In criminal cases, no justification being requisite, bail is absolute in the first instance. 
 The magistrate maj r , however, examine them on oath as to the sufficiency of their estate. 
 And, it is said, that if he be deceived, he may require fresh sureties. McKinney's Am. Mag. 
 256, 257. 
 
56 THE EXAMINATION AND COMMITMENT, &o. 
 
 lawful money of Great Britain, to be made and levied of their several 
 goods and chattels, lands and tenements respectively, to the use of our 
 said lady the Queen, her heirs and successors, if he the said A. B. fail 
 in the condition indorsed. 
 
 Taken and acknowledged, the day and year first above mentioned, 
 at , before us. 
 
 J. S. 
 J.N". 
 
 Condition. 
 The condition of the within-written recognizance is such, that where- 
 as the said A. B. was this day charged before [us, J the justices within 
 mentioned, for that [dtc, as in the warrant;'] if therefore the said A. B. 
 will appear at the next court of oyer and terminer and general jail de- 
 livery [or court of general quarter sessions of the peace,] to be holden in 
 and for the county of -, and there surrender himself into the custo- 
 dy of the keeper of the [common jail] there, and plead to such indict- 
 ment as may be found against him by the grand jury, for or in respect 
 of the charge aforesaid, and take his trial upon the same, and not de- 
 part the said court without leave, then the said recognizance to be void, 
 or else to stand in full force and virtue. 
 
 Notice of the said Recognizance to be given to the Accused and his Bail. 
 Take notice that you A. B. of , are bound in the sum of - 
 
 and your [sureties L. M. and N. 0.] in the sum of each, that you 
 
 A. B. appear, [&c, as in the condition of the recognizance,] and not depart 
 the said court without leave ; and unless you the said A. B. personally 
 appear and plead and take your trial accordingly, the recognizance en- 
 tered into by you and your sureties shall be forthwith levied on you 
 and them. 
 
 Dated this day of , 185 — . 
 
 J. S.[l] 
 
 [1] A recognizance is an acknowledgment of the party entering into it, and, of course, must 
 be voluntary on his part. If he refuse, however, to enter into it, he, or those concerned, 
 must abide the consequences that will ensue, in the course of the law, in the case. 
 
 Wheresoever any statute giveth justices of the peace power to take bonds of any man, 
 or to bind over any man to appear at the assizes or sessions, or to take sureties for any mat- 
 ter or cause, they may take «■ recognizance. But they can take no recognizance, but only 
 in such matters as concern their offices ; but if they do, it seemeth to be void. Dalt. C. 
 168. 
 
 Every recognizance, taken by justices of the peace, must be made to the Commonwealth, 
 or State. It ought to contain the name, place of abode, and profession, trade or calling, 
 both of the principal and surety or sureties. It should be so descriptive, in these respects, 
 that in case of its forfeiture, it may be sued with effect, and the parties made answerable in 
 law. For an offence under the laws of Congress the recognizance should bo to tho United 
 States. 
 
HOW, AFTER COMMITMENT. 57 
 
 (c) *Hoiv, after Commitment. [*57] 
 
 In all cases where a person charged with any indictable offence shall 
 be committed to prison to take his trial for the same, it shall be lawful, 
 
 A justice of the peace can only require sureties to the next court. 1 Mass. Rep 488; 8 
 Mass. Rep. 78. 
 
 If the court in which the case is to be tried, is sitting at the time when the recognizance 
 is taken, it ought to be for the appearance of the party at the present term or session of the 
 eourt. 
 
 See Commonwealth v. Canada, 13 Pick. 89, 90; Commonwealth v. Otis, 16 Mass. 198; 
 State v. Berry, 8 G-reenl. 179; Rev. Stat, of Mass. eh. 135, § 22. It is held in Common- 
 wealth v. Canada, supra, that a justice of the peace has no authority to admit to bail a pri- 
 soner, committed by another justice of the peace, for bailable offence, for not finding suffi- 
 cient sureties to recognize for him ; and a recognizance taken in such case is void. But see 
 Rev. Stat. otMass. ch. 35, § 22. 
 
 A justice of the peace is liable for knowingly taking insufficient bonds of prosecution. 
 Smith v. Trawl, 1 Root, 165. 
 
 It is provided in the Constitution of the United States that excessive bail shall not be re- 
 quired, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Constit. U. 
 S. 8th art. of the amendments. See 3 Story on the Constit. 750, 751; Rawle on the Con- 
 stit. ch. 10, pp. 130, 131. 
 
 It seems that an action does not lie in New Hampshire against a justice for demanding 
 excessive bail on a, criminal charge. Evans v. Foster, 1 N. Hamp. 374. See 2 Stark. Ev. 
 (5 lb Am. ed.) 428, n. 1 ; Eardisonv. Jordan, Cam. & Nor. 454 ; Gregory v. Brown, 4 Bibb, 
 28 ; - State v. Johnson-, 2 Bay, 385 ; Lining v. Benfham, 2 Bay, 1 ; Boyer v. Potts, 14 Serge. & 
 Rawle, 158; State v. Campbell, 2 Tyler, 177. 
 
 See Petersdorff on Bail, 509, et seg. (Law Lib. No. 29, p. 509 et seq.) State v. Corson, 1 
 Fairfield, 473; WCartyv. State, I Blackf. 338; State, v. Welman, 3 Ohio, 14. 
 
 A recognizance taken by a justice of the peace and entered on his docket in these words ; 
 "Jacob Kerns v. John Steward. Recognizance — bail, 25. Simon Elliot appears and ac- 
 knowledges himself bail in the above case ;" is informal and void. Kerns v: Schoonmaker, 4 
 Ohio, 331. See State Treasurers. Woodward, 7. Vermont, 528 ; Samev. Eolfe, 15 ib. 9. The 
 justices of the Police Court for the city of Boston, after certifying and sending up to the muni- 
 cipal Court a record of a recognizance entered into before them, certified and returned, at the 
 suggestion of the attorney for the Commonwealth, a mere extended record of the facts and cir- 
 cumstances as they appeared on their minutes, and upon scire facias on such extended re- 
 cognizance, it was held that this proceeding of the police court was not irregular and the 
 scire facias was sustained. Commonwealth v. WNeiU, 19 Pick. 127. 
 
 The date of the recognizance may be on the day on which the defendant is recognized to 
 appear, as the court will presume it was executed in the morning, before- the session com- 
 menced. State v. Bradley, 1 Blackford (Ind.) 84., But it was held in Massachusetts, under 
 the Revised Stat. ch. 86, § 11 and ch. 138, § 113, those exceptions in, a criminal case, filed 
 in the municipal court or court of common pleas, must be entered in the supremo judicial 
 court next to be held for the same county, and if the party, who filed such exceptions re- 
 cognizes to enter and prosecute them in the supreme judicial court then in session, the re- 
 cognizance is void. Commonwealth v. Barley, 7 Metcalf, 467. 
 
 A recognizance to answer a criminal charge need not show that the complaint had been 
 made under oath. It stands on its own terms ; independent of any previous proceedings. 
 JWCarty v. State, 1 Blackford (Ind.) 339. 
 
 But it should state in substance all the proceedings, which show the authority of the court 
 or magistrate to take it. State v. Smith, 2 Orecnl. 62; See Commonwealth v. Daggett, 16 
 Mass. 447; Commonwealth v. Downing, 9 Mass 520; Ex parte Beaufort, 3 Oraneh, 448; 
 State?. Corson, 1 Fairfield, 473 ; Rev. Stat, of Mass. ch. 135, § 30. It is essential to a re-- 
 
57 — 1 THE EXAMINATION AND COMMITMENT, Ac. 
 
 at any time afterwards, and before the first day of the sitting or ses- 
 sion at which he is to be tried, or before the day to which such sitting 
 or session may be adjourned, for the justice or justices of the peace 
 
 cognizance, that it recite the cause of its caption. Commonwealth v. Downey, 9 Mass. 320; 
 Same v. Daggett, 16 Mass. 447 ; Bridge v. Ford, 4 Mass. 641 ; Bridge v. Ford, 7 Mass. 209! 
 The recognizance should set out the kind of office for which the party is to answer. Good, 
 winy. Governor, 1 Stew. & Port. 465; Simpson v. Commonwealth, 1 Dana, 523; Common- 
 wealthy. West, 1 Dana, 165. A recognizance not exactly according to statute maybe good 
 at common law. Phelps v. Parks, 4 Termt. 488. 
 
 A recognizance to appear at a court of general sessions to answer to an indictment to be 
 preferred, to do and receive, 4c. and not depart &c. is valid, if the offence be substantially, 
 although not technically, set forth. People v, Blankman, 17 "Wendell, 252. A recognizance 
 must show on its face the court to which the defendant is bound to appear. State v. Bye, 
 9 Terger, 386. 
 
 All recognizances in criminal case should be taken to and in the name of the Common- 
 wealth. Commonwealth v. Porter, 1 Marsh. (Ken.) 44 ; Commonwealth v. Canada, 13 Pick- 
 87; Kerns v. Schoonmaker, 4 Ohio, 331. A recognizance to keep the peace taken in the 
 name of the governor of Kentucky is void. Adams v. Ashby, 2 Bibb, 96. 
 
 "Where a recognizance is entered into by the sureties alone, without the principal, condi- 
 tioned for the defendant's appearance in court to answer a criminal charge, the recognizance 
 is valid. Minor y. State, 1 Blackford, (Ind.) 236. See People v. Slayton, 1 Breese, 257. 
 
 Chittenden v. Cutler, 2 Chip. 25 ; Young y. Shaw, 1 ib. 224. But see People v. Slayton, 1 
 Breese, 257. A recognizance taken for a purpose not authorized by law is void. Harring- 
 ton v. Brown, 7 Pick. 332. So where the court has no authority to act. Commonwealth v- 
 Loveridge, 11 Mass. 337 ; Vase v. Deane, 7 Mass. 280 ; Dow v. Prescott, 12 Mass. 419 ; Com- 
 monwealth v. Otis, 16 Mass. 198. 
 
 It is not necessary, that a recognizance to answer a charge of felony, should be signed by 
 the principal and bail. Commonwealth v. Mason, 3 Marsh. (Ken.) 456. See Commonwealth 
 v. Emery, 3 Binn. 431; Madison v. Commonwealth, 2 A. K. Marsh, 131. A seal is not 
 essential to the validity of a recognizance, State v. Boot, 2 Rep. Const. Ct. 123. Kearns v 
 State, 3 Blackf. 336 .- It is provided by statute in New York, that all recognizances in order to 
 be valid, must be signed by the party intended to be bound by them. See People v. Huggins 
 10 Wendell, 471, 472. 
 
 Petersdorff on Bail, 514—516. (Law Lib. No. 29, pp. 514—516.) ' 
 Bail in criminal cases are invested with the same unrestricted authority, that is conferred 
 upon them in criminal cases, id. See Commonwealth v. Brickett, 8 Pick. 138. 
 
 But in South Carolina, the surrender of a party under bail to the deputy sheriff, does n ot 
 discbarge the sureties from their liability on their recognizance. State v. La Gerf, 1 Bailey, 
 410. See Stegarsy. State, 2 Blackf. 104. 
 
 Where a justice of the peace had neglected to return a recognizance, taken by him, until 
 the second day of the term, at which it was returnable, the court ordered that he pay a fine 
 for his neglect. Ex parte Neal, 14 Mass. 205. The recognizance must be filed and made a 
 record of court to sustain a suit, and it must be so averred in the declaration. People v. 
 Van Epps, 4 Wendell, 487. See Palister v. Little, 6 Greenl. 350. Dodge v. KeUocl^ 1 Fair- 
 field, 266. The justice should also make the proper entry of the prisoner's failure, to appear, 
 when called. Potter v. Kingsbury, 4 Day, 98. See Rev. Stat, of Mass. oh. 135, § 27, and it 
 should be averred in the declaration that the default of appearance was entered of record. 
 People v. Van Epps, supra. See People y. Haddock, 12 Wendell, 476. 
 
 See Commonwealth v. M'Neitt, 19 Pick. 127. A justice taking a recognizance for appear- 
 ance must return it to the court where the conusor is to appear; and. if the court has not 
 jurisdiction to award execution on a scire facias, it ought to certify the recognizance to some 
 court, where such execution can be awarded. Johnson y. Bandall, 7 Mass. 340. A recog- 
 nizance should be returned by the justice, who takes it, at the first day of the term of the 
 
HOW, AFTER COMMITMENT. 57 — 2 
 
 who shall have signed the -warrant for his commitment, in his or their 
 discretion, to admit such accused person to bail in manner aforesaid; 
 or if such committing justice or justices shall be of opinion that for any 
 of the offences hereinbefore mentioned the said accused person ought 
 to be admitted to bail, he or they shall in such cases, and in all other 
 cases of misdemeanors, certify on the back of the warrant of commit- 
 ment his or their consent to such accused party being bailed, stating 
 also the amount of bail which ought to be required, it shall be lawful 
 for any justice of the peace, attending or being at the jail or prison 
 where such accused party shall be in custody, on production of such 
 certificate, to admit such accused person to bail in manner aforesaid ;— 
 or if it shall, be inconvenient for the surety or sureties in such a case to 
 attend at such jail or prison to join with such accused person in the 
 
 -court to which it is returnable ; and if without good cause he neglect to return it, he is liable 
 to a fine. Ex parte Need, 14 Mass. 205. 
 
 The neglect of one, who had been bound over to appear at the municipal court to appear 
 personally at that court, was held to be a forfeiture of such recognizance. Commonwealth v. 
 WNeill 19 Pick. 127! 
 
 The person bound by a recognizance to appear and answer, is not at liberty to depart 
 after once making his appearance in court, but he must remain until duly discharged, 
 People v. Stager, 10 Wendell, 433. The condition that the party shall not depart until heis 
 discharged by the court, is unnecessary as it respects the charge on which the recognizance 
 is entered into, but it is intended to detain the party, should other charges be made against 
 him. Id. 434. See Keef haven v. Commonwealth, 2 Pennsylv. 240 ; State v Stout, 6 Halst. 
 24; People v. Clary, 17 Wendell, 374; Starr v. Commonwealth, 7 Dana, 243. 
 
 Where the recognizance is for the principal's appearance on the first day of the term, his 
 failure to attend on that day is a forfeiture : if, however, no indictment be found against 
 him, and he appear during the 1 term,the recognizors may be discharged by the favor of the 
 court. Aliter, where the principal does not appear.- Adair v. State, 1 Blackford (Ind.) 201. 
 See State v. Saunders, 2 Halsted, 177'; State v. Cooper, 2 Blackf. 227. A recognizance to 
 appear at a term of the court, without designating a day, cannot be forfeited by a failure to 
 appear on any particular day. Griffin v. Commonwealth, Litt. Sel. Ca. 31. A recognizance 
 to appear at the first day of the next court, binds the party to appear at the first court 
 actually held ; a failure to hold the court at. the regular time will not exonerate him. Com- 
 monwealth v. Cayton, 2 Dana, 135. A party was recognized in March, to appear "at the 
 April Criminal term." There was no such term; the next criminal term was in May. In 
 June, at the criminal law term, he was called, and failed to appear. There was no forfeiture 
 of bis recognizance. Thurston v. Commonwealth, 3 Dana, 224; see State Treasurer v. 
 Seaver, 7 Vermont, 480; Same v. Bolfe, 15 ib. 9. 
 
 If the condition of a bond or recognizance become impossible by the act of God, or the 
 obligpe, or the conusee, the performance is excused. People, v. Manning, 8 Cowen, 295 ; see 
 Commonwealth v. Craig, 6 Randolph, 731. 
 
 Eecognizances estreated into the Exchequer may be discharged or compounded, by the 
 court according .to the equity and circumstances of the case. In re Pellard; 13 Price, 299 ; 
 S. 0. nom. ; Ex parte Pellow, M'CIel. 111. In Massachusetts the court has the same power 
 by statute. Rev. Statute, Ch. 135, sec. 29. 
 
 A recognizance of bail in a criminal case is not designed as a satisfaction of the offence, 
 when it is forfeited and paid, but as a means of compelling the party to submit to the trial 
 and punishment, which the law ordains for his offence. Ex parte Milbwrn, 9 Peters, 710. A 
 judgment rendered on a recognizance for failing to appear is no bar to another prosecution 
 for the same offence. Commonwealth v. Thompson, 3 Litt. 284. 
 
 20 
 
57 — -3 THE EXAMINATION AND COMMITMENT, &c. 
 
 recognizance of bail, then such committing justice or justices may 
 make a duplicate of such certificate as aforesaid, and upon the same 
 being produced to any justice of the peace for the same county, riding, 
 division, liberty, city, borough, or place, it shall be lawful for such 
 last-mentioned justice to take the recognizance of the surety or sureties 
 in conformity with such certificate, and upon such recognizance being 
 transmitted to the keeper of such jail or prison, and produced, together 
 with the certificate on the warrant of .commitment as aforesaid to any 
 justice of the peace attending or being at such jail or prison, it shall be 
 lawful for such last-mentioned justice thereupon to take the recogni- 
 zance of such accused party, and to order him to be discharged out of 
 custody as to that commitment, as hereinafter mentioned.(a)[l] 
 
 And in all cases where such accused person in custody shall be ad- 
 mitted to bail by a justice of the peace other than the committing jus- 
 tice or justices as aforesaid, such justice of the peace so admitting him 
 to bail shall forthwith transmit the recognizance or recognizances of 
 bail to the committing justice or justices, or one of them, to be by him 
 or them transmitted, with the examinations, to the proper officer.(J) 
 
 (a) 11 & 12 Viet. e. 42, s. 23. (6) 11 & 12' Vict. o. 42, s. 23. 
 
 [1] If the party is not ready with bail, at the time he is apprehended and examined, and 
 the offence is bailable, he may at any time be released from imprisonment on finding 
 sureties. 1 Burr. 460 ; 2 Hawk. ch. 16, § 1, u. 1 ; 1 Nun & Walsh, 383. And after the 
 recognizance had been entered into, the justice before whom it is taken will send notice of 
 the fact to the jailer and an order to liberate him. 1 Chit. Or. L. 101 ; 1 Nun & Walsh, 383. 
 And it is said that justices of the peace may send a prisoner, for a short time, to some pri- 
 vate prison, to afford him an opportunity, when necessary, of procuring bail before he is 
 committed for trial ; but this practice has been disapproved of as inconvenient and not agree- 
 able to law. For in strictness the magistrate has no authority thus to detain a party in 
 custody out of the common jail ; and in so doing he acts on his own responsibility, and 
 should therefore be very cautious. 1 Burn, 321 ; 1 Chit. Cr. Li 345; Cro. Cir. Comp. 15. 
 The practice, however, of permitting the prisoner to remain a short time before his final 
 commitment, in the custody of an officer, to afford him this opportunity, is very reasonable 
 and liable to no serious objection. A faithful officer will be careful, in auoh case, not to 
 suffer an escape ; and the party thereby may avoid the inconvenience of a commitment, in 
 some cases, where his bail, when procured, would be ample security for his appearance to 
 take his trial. Davis' J. 99. 
 
 Notice of bail is, in ordinary cases, not usually required by magistrates when the prosecu- 
 tor is in attendance and has an opportunity of objecting ; but it may be required if the 
 magistrate thinks the case proper for it ; and when the bail tendered has been rejected for 
 insufficiency, and the party thereupon committed, the magistrate, in England, frequently 
 does (and in strong oases it is very proper) order that a reasonable notice of bail, usually 
 twenty-four or forty-eight hours according to circumstances, shall be given to the prosecutor 
 or his attorney, in order that he may in the meantime inquire into the sufficiency of the 
 bail tendered, and, if they are not satisfactory, have an opportunity of opposing them. 1 
 Nun & Walsh, 386 ; 1 Burn, 321. Notice should also be required when the securities have 
 been previously rejected by another magistrate. Id. 381, 386. 
 
IN OTHER MISDEMEANORS. 57—4 
 
 The following is the form of the 
 
 Certificate of Consent above mentioned. 
 
 I hereby certify, that I consent to the within -named A. B, 
 
 *being bailed by recognizance, himself in , and [two] [*58] 
 
 sureties in — ; — each. 
 
 J. S. 
 The like, on a separate Paper. 
 
 Whereas A.. B. was on the , committed by me to the [house of 
 
 correction] at , charged with [Sc., natirdncf the -offence shortly:] 
 
 I hereby certify, that I consent to the said A. B. being bailed by 
 
 recognizance, himself in , and [two] sureties in each. Dated 
 
 the day of , 185 — . 
 
 J. S. 
 
 (d) In other misdemeanors. 
 
 Where any person shall be charged before any justice of the peace 
 with any indictable misdemeanor other than those hereinbefore men- 
 tioned, such justice, after taking the examinations in writing as afore- 
 said, instead of committing him to prison for such offence, shall admit 
 him to bail in manner aforesaid ; — or if he have been committed to 
 prison, and shall apply to any one of the visiting justices of such prison, 
 or to any other justice of the peace for the same county, riding, divi- 
 sion, liberty, city, borough, or place, before the first day of the sitting 
 or session at which he is to be tried, or before the day to which such 
 sitting or session may be adjourned, to be admitted to bail, such justice 
 shall accordingly admit him to bail in manner aforesaid. (a)[l] 
 
 (a) 11 & 12 Vict. c. 42, 3. 23. 
 
 [1] A party who is thus bailedj" is still, in supposition of law, in custody of his sureties, 
 who are considered as his keepers, and may, therefore re-seize to bring him in if they fear 
 his escape, and take him before the justice or court to be committed, and thus, the bail may 
 be discharged from their recognizance. But the defendant is at liberty to find new sure- 
 ties. 1 Chit. Cr. L. 104; 2 Hale, 124; 2 Hawk, ch. 15, §3; Com. Dig. "Bail" 2; 6 Mod. 
 ■ 231. Bail in criminal cases are invested with the same unrestricted authority over the per- 
 son of the defendant that is conferred upon them in civil cases. Petersdorf on Bail, 514. 
 Bail are said to have the principal always upon the string, and may pull it in when they 
 please, to render him in their own discharge. 6 Mod. 231. They have the custody of the 
 principal, and may take him at any time and in any place. 1 Highmore on Bail, 199. The 
 taking is not considered as the service of process, but as a continuation of the custody which 
 had been, at the request of the prinsipal, committed to the bail. The principal may, there- 
 fore, be taken on Sunday. The dwelling house is no longer the castle of the principal, in 
 which, he may place himself to keep off the bail. If the door should not be opened on de- 
 mand, at midnight, the bail may break it down, and take the principal from his bed, if that 
 measure should be necessary to enable the bail to take him., 8 Pick. 140. And in surren- 
 
58 THE EXAMINATION AND COMMITMENT, &o. 
 
 (e) Warrant of Deliverance. 
 
 In all cases where a justice or justices of the peace shall admit to 
 bail any person who shall then be in any prison charged with the 
 offence for which he shall be so admitted to bail, such justice or justices 
 shall send to or cause to be lodged with the keeper of such prison a 
 warrant of deliverance under his or their hand and seal or hands and 
 seals, requiring the said keeper to discharge the person so admitted to 
 bail, if he be detained for no other offence ; and upon such warrant of 
 deliverance being delivered to or lodged with such keeper, he shall 
 forthwith obey the same.(a)[2] 
 
 (a) 11 & 12 Viet. c. 42,-fl. 24 
 
 dering the principal, they may command the co-operation of the sheriff and any of hie 
 officer?. Petersdorf on Bail, 5 1 5. And besides this power of bail to take and render the 
 party accused of a crime, bail in a civil action may have a habeas corpus, in some cases, to 
 render the defendant in custody on a criminial charge, in order to be relieved from further 
 liability on their recognizance. Id. ib. ; 15 East, 78 ; 9 id. 154 ; 3 id. 232. 
 
 Bail may depute another person to take and surrender their principal ; and the bail, or 
 the person deputed by him for that purpose, may take the principal at any time and in any 
 place, even in another state. 1 John. 145 ; 1 John. Cas. 413. So an executor or adminis- 
 trator may surrender the principal of his testator or intestate. 1 Bos. & Pul. 62 ; 1 Mass. 
 E,. 169. 
 
 The acquittal or condemnation of the principal does not affect the situation of the bail ; 
 for their responsibility in either case terminates, if the prisoner duly appears to answer the 
 charge brought against him. 1 Wils. 315. And it appears that the right of the bail to be 
 discharged, is not affected by the conduct of the principal on his trial. If he, therefore, 
 stand mute, they are not liable on the recognizance, although a contrary inference might be 
 drawn from the terms of that instrument. Petersdorf on Bail; 515. If the principal do not 
 appear, and the recognizance be forfeited and the penalty paid by the bail, yet the princi- 
 pal continues" amenable to the law, whenever he can be taken; for the penalty in the re- ' 
 cognizance is only intended to compel a due observance of its condition, and has no 
 connection with the liability of the principal. Id. 516. 
 
 It has been remarked, (Highmore on Bail, 204,) that if the bail have been compelled to 
 pay the penalty, in consequence of the recognizance becoming forfeited, they cannot sustain 
 an action against him for money paid to his use ; but this opinion would appear to be un- 
 founded, as it is now fully settled that where a person is bail for another, he is entitled to 
 recover all the expenses he has incurred incidental to that situation. 6 Esp. Ill ; Peters- 
 dorf, 423. And if one of the bail is compelled to pay the whole of the debt created -by the 
 forfeiture of the recognizance, he may support an action for money paid, against his co- 
 surety, and thereby compel him to contribute his proportion toward the liquidation of the 
 demand. Petersdorf on Bail, 423, 424. In such action by one of the bail against his co- 
 surety, to obtain contribution, he must prove the judgment as well as the execution. Id. 
 424 ; 1 C. Marsh. Bep. 6. 
 
 The recognizances for the appearance of the defendant, must be certified by the magis- 
 trate to the next court having cognizance of the offence charged against the prisoner, in the 
 same manner as the examinations and the recognizances to prosecute and give evidence are 
 to be certified and returned. 
 
 It appears to boa general rule that the defendant and his bail cannot be-called upon their 
 recognizance except on the day on which the former is bound to appear. If he is called on 
 any other day, notice must be given of the intention. 1 Chit. Cr. L. 106. 
 
 [2] Ohio. — By special provision, when any person has been committed, for a bailable 
 
IN "WHAT CASES. 58—1 
 
 The following is the form of the 
 
 Warrant of Deliverance on Bail being given for a Prisoner already 
 
 committed. 
 
 To the keeper of the [house of correction] at , in the said 
 
 [county] of . 
 
 Whereas A. B., late of , [laborer] hath before {us, two] of Her 
 
 Majesty's justices of the peace in and for the said county, entered into 
 his own recognizance, and found sufficient sureties for his appearance 
 at the next court of oyer and terminer and general jail delivery 
 [or court of general ^quarter sessions of the peace] to be holden in [*59] 
 and for the county of — ■ — ■, to answer our sovereign lady the 
 Queen, for that [&c, as in the commitment,] for which he was taken and 
 committed to your said [house of correction : Jthese are therefore to com- 
 mand you, in Her said Majesty's name, that if the said A. B. do re- 
 main in your custody in the said [house of correction]' tor the said cause, 
 and for no other, you shall forthwith suffer him to go at large. 
 
 Given under our hands and seals, this ■ day of , in the year 
 
 of our Lord , at , in the [county] aforesaid; 
 
 J. S. [L. s.] 
 J. N. [l. s.] 
 
 SECTION IV. 
 
 CONVICTION OF JUVENILE OFFENDERS FOE LARCENY. • 
 
 (a) In what cases. 
 
 Every person who shall be charged with having committed, or hav- 
 ing attempted to commit, or with having been an aider, abettor, coun- 
 cellor, or procurer in the commission of any offence which now is or 
 hereafter shall or may be by law deemed or declared to be simple lar- 
 ceny, or punishable as simple larceny, — and whose age at the period 
 of the commission or attempted commission of such offence shall not 
 in the opinion of the justices before whom he or she shall be brought 
 
 offence, either by a judge, sheriff, or justice, any single judge may admit such person to bail, 
 and may direct the prisoner, by special warrant, to be brought before him for that pur- 
 pose. 
 
 In that state, there is also an examining court specially provided for the relief of prisoners 
 confined on criminal accusations. It c nsists of the three associate judges of the county, 
 who, at the request of any such prisoner, may be convened at any time, on three days 
 notice, and after examining into the facts of the case, may either discharge, re-commit, or 
 hold the prisoner to bail, as they think proper. Walker's Introd. 624. 
 
59 CONVICTION OF JUVENILE OFFENDERS FOR LARCENY. 
 
 or appear, exceed the age of sixteen years, (a) .shall, upon conviction 
 thereof upon his own confession or upon proof, before any two or 
 more justices of the peace for any county, riding, division, borough, 
 liberty, or place, in petty sessions assembled, at the usual place and in 
 open court, be committed to tbe common jail or house of correction 
 within the jurisdiction of such justices, there to be imprisoned, with or 
 without hard labor, for any term not exceeding three calender months, 
 — or, in the discretion of such justices, shall forfeit and pay such sum 
 not exceeding three pounds, as the said justices shall adjudge, or if a 
 male [not exceeding fourteen years of age,](6) shall be once privately 
 whipped, either instead of or in addition to such imprisonment; or im- 
 prisonment and hard labor.(c)[l] 
 
 (b) By whom. 
 
 Any two or more justices of the peace for any county, riding, divi- 
 sion, borough, or place, in petty sessions assembled, and in open court, 
 — or any one magistrate of the police courts of the metropolis, — or any 
 stipendiary magistrate sitting in open court, and having by law the 
 
 (a) 13 & 14 Vict. o. 36, s. 1. (c) 10 & 11 Vict. o. 82, s. 1. 
 
 (6) 13 & 14 Vict. c. 37, s. 1. 
 
 [1] The jurisdiction of a justice of the peace in criminal matters generally extends to 
 three principal classes of cases: I. Those cases, in which the proceedings before them are 
 merely primary and preliminary, that on the appearance or arrest of an accused person, he 
 may. if due proof be made, be held to answer the charge before a proper court of justice. 
 II. Cases of summary conviction, in which they have power to hear, try, and determine 
 charges for particular statutory offences, and to punish by fine and imprisonment. III. 
 Cases of surety of the peace, or for good behaviour, in which they may require a suspected 
 party to enter into the proper recognizances. 
 
 There are some cases, in which proceedings are by statute authorized and directed to be 
 had, for the punishment of offences by fine or imprisonment, and for the recovery of fines 
 and forfeitures, before justices of the peace and similar magistrates, on their judgment and 
 sentence ; in which they have power to hear, try, and determine, and may acquit, or con- 
 vict and punish. In some instances their judgments or sentences, under this jurisdiction, 
 are final ; in others, there may be an appeal on the facts to a proper court of justice. 
 
 Generally, the proceedings before justices of the peace, in criminal cases, are only pri- 
 mary, being merely preliminary, in order to the trial of the accused in a competent court; 
 but in this class of cases they are final, for trial aud judgment, acquittal or conviction and 
 sentence ; an appeal being allowed, in some instances from such a conviction, to a higher 
 tribunal. 
 
 In this country proceedings of this kind have been provided for, by statute, in numerous 
 cases, for offences against the public, and for violations of penal laws more immediately in- 
 jurious to individuals, forming a particular and very important class of jurisdiction delegated to 
 justices of the peace, and similar magistrates. 
 
 Or this description of cases are gambling, horse-racing, profane cursing and swearing, 
 drunkenness, Sabbath-breaking by worldly employment on that day, obstructing public 
 roads or canals, vagrancy, and the like ; and in some states, common assault and battery, 
 challenging to fight and affrays. 
 
SUMMONS OR WARRANT. 59 — 1 
 
 power to do acts usually required to be done by two or more justices 
 
 of the peace, — have hereby authority to hear and determine 
 
 the case *according to the provisions of this act ;(«) seemingly, [*60] 
 
 whether the offence be committed within their jurisdiction or 
 
 not.[l] 
 
 (c) Summons or warrant. 
 
 Where any person, whose age is alleged not to exceed [sixteen^] years 
 shall be charged with any such offence on the oath of a credible wit- 
 ness, before any justice of the peace such justice may issue his sum- 
 mons or warrant to summon or apprehend him to appear before two 
 justices, &c, at a time and place to be named therein. (V) The sum- 
 mons may readily be framed from the form ;(c) and the warrant from 
 
 (a) 10 & 11 Viet. o. 82, s. 2. (c) Ante, p. 32. 
 
 (6) Id. s. 4. 
 
 [1] A justice acts either singly, 1 or in connection with other justices. Where an autho- 
 rity, of a judicial nature, is given by statute to two justices, it cannot be exercised by one ; 
 and in such cases the two justices must be together when the'authority is exercised. 3 T.- 
 R. 38 ; 2 W. Bl. Rep. 1017 ; Bac. Abr. tit. Just. P. (E.) 5 ; 3 Burn. 561. But where the 
 act to be done is merely ministerial, they may act separately. 1 Str. 393 : 2 East, 244 ; 8 
 East, 321, note; 5 Bing. 319. Some statutes empower one justice alone to act; others re- 
 quire two, three, or four justices. Where an authority is conferred upon two it may be 
 executed by a greater number. 2 Salk. ill; 5 Car. So Payne, 135 ; Dalt. ch. 6, § 8. But 
 an authority given to two cannot be executed by one alone. Dalt. ch. 6, § 8 ; 4 Coke, 46; 
 3 Burn, 561. And where, by statute, a special authority is given to justices of the peace it 
 must be pursued exactly, or their acts will be void. 2 Salk. 475 ; 5 Burr. 2686 ; Arch, 
 Mag. Pocket Book, 147. , But it is to be observed that the statutes which require their 
 authority to be exercised by two or more justices relate generally to judicial acts. 1 Nun 
 & Walsh, 62, note ; 1 Black. Com. 35^4, note. 
 
 Most of the statutes give authority generally, without distinction, to all justices, which 
 implies an equal power in all, within the limits of their respective jurisdictions. But some 
 statutes point out those of a particular description ; and the powers given by such statutes 
 are, of course, confined to justices possessing the necessary qualification. Id. 64. 
 
 It has been laid down that where, by statute, a thing is appointed to be done by or be- 
 fore one person certain, by such express designation of one, all others are excluded. Dalt. 
 ch. 6; 3 Burn, 562. Thus it was held under a statute giving authority to a justice residing 
 in a county, that none but a justice resident there had jurisdiction. Sharp v. Aspinatt, 1 
 Barn. & Cr. 47. So where a statute requires the act to be done by the next justice, it has 
 been holden that it must be the next, and that the authority of all others is thereby ex- 
 cluded; but where the statute says justices in or near the place, any justice of the county 
 may take cognizance of the matter, notwithstanding such description, these latter words 
 being held to be merely directory. 3 Bac. Abr. 798 ; 1 Saund. 263, a. note ; Bex v. Jen- 
 nings, 3 Keb. 383. And it has been held that in constructing the acts which mention 
 justices in or near the place where the offence was committed, any justice of the county may 
 take cognizance of the matter. 1 Saund. 263 ; 3 Keb. 283 ; Bac. Abr. tit. Just, of Peace, 
 B. 5 ; 2 Str. 1154 ; 14 East's Rep. 267, 274. 
 
 Where a statute directed any two justices of the county to make an inquiry, and if cer- 
 tain evidence was obtained, empowered " such justices" to make an order, it was held that 
 both acts must be done by the same two magistrates. 12 Ad. & Ellis, 78. 
 
60 CONVICTION OF JUVENILE OFFENDERS FOR LARCENY. 
 
 the form.(a) Of course this is not necessary, where the party has al- 
 ready been apprehended without warrant, and is in custody ; but in 
 that case he must be brought before two or more justices in petty ses- 
 sions, or before a police or stipendiary magistrate, as above mention- 
 ed. [2] 
 
 (d) Searing. 
 
 Any justice may issue a summons requiring the attendance of any 
 
 (a) Ante, p. 31. 
 
 [2] The power of a justice of the peace to convict an offender in a summary way, without 
 a trial by jury, is in restraint of the common law, and nothing will be presumed in favor of 
 this branch of his office ; but the intendment will be against it. Where, therefore, this es- 
 pecial power is given to him by statute, it must appear that he has strictly pursued it; oth- 
 wise his proceedings will be void. 
 
 There must, in the first place, be an information or charge against a person ; then he must 
 be summoned, or have notice of such charge, and have an opportunity to make his defence ; 
 and the evidence against him must be such as the common law approves, unless the statute 
 specially directs otherwise; then, if the person be found guilty, there must be a conviction, 
 judgment, and execution, according to the course of the common law, directed and influ- 
 enced by the special authority given by statute ; and finally, there must be a record of the 
 .whole proceedings, wherein the justice must set forth the particular manner and circum- 
 stances, so that if an appeal should be taken, it may appear that he has conformed to the 
 law, and not exceeded the bounds prescribed to his jurisdiction. 
 
 When the offence is between party and parly, and not of an aggravated nature, and the 
 supposed offender is not likely to abscond, a summons is recommended, as the preferable 
 process to procure his attendance ; and this seems necessary where there is no oath of the 
 offence having been committed. But where there is an accusation on oath of an offence of 
 a higher nature, as treason or felony, it is proper to. issue a warrant, in the first instance, if 
 there appear any reasonable ground for the charge. But although there be a positive charge 
 on oath, yet if the justice see that no credit is to be given to it, he may decline issuing a 
 warrant. For petty assaults, though a justice is authorized to issue a warrant,. on com- 
 plaint on oath of the accuser, yet a summons is. more advisable, as in many cases it is found 
 that the accusation is frivolous or without any foundation. A summons should be signed 
 by the magistrate who issues it, and may be directed to the party himself, or to a constable 
 requiring him to summon or give notice to the party, where attendance is required. And 
 it is usual not only in the summons to fix a day, but a particular hour, for the appearance 
 of the suspected individual; but the accused is bound to wait until the magistrate can at-, 
 tend to the complaint. In general a summons may be granted without the oath of the 
 complaining party ; but in some cases,. by particular enactment, an oath is absolutely requi- 
 site. If the complaint is on oath, it should be so stated, and a copy of the summons should 
 be served upon, or left at the residence of the accused. In a criminal prosecution against 
 the wife there is no occasion to summon the husband. 1 Chitty on Crim. Law. p. 32. 
 
 When a magistrate takes jurisdiction of an offence committed in his view, he may issue a 
 summons or warrant, according to the nature of the case, without any complaint or infor- 
 mation. 
 
 The summons is for the purpose of requiring the accused to appear before the magistrate 
 in order to answer the charge, and that he and his witnesses maybe examined, and, if 
 necessary, the witnesses on the part of the prosecution, in his presence. The magistrate is 
 to be regulated, in fixing the precise time of the return of the summons, and the examina- 
 tion, by the distance, and by the particular circumstances of each case. If the accused do 
 not appear on the summons, and it was duly served, and where the information was on 
 oath, the magistrate may issue a warrant. 
 
CONVICTION AND COMMITMENT. 60 — 1. 
 
 person, as a -witness upon the hearing, and it may be served either by- 
 delivery of a copy to the witness, or by leaving it with some person 
 for him at his usual place of abode ;(a) or if he refuse or neglect to at- 
 tend, the justice may issue his warrant. This summons and warrant 
 may readily be framed from the forms.(5) 
 
 As soon as the party and witnesses are before the justices, and before 
 the party is asked whether he or she has any cause to show why he or 
 she should not be convicted, one of the justices shall say to him — : 
 " We shall have to hear what you have to say in answer to the charge against 
 you ; but if you wish the charge to be tried by a jury, you must object now 
 to our deciding upon it at once" — or words to the like effect.(c) If he 
 object, the summary proceeding ceases, and the prosecutor must proceed 
 in the ordinary way, by indictment ; but if he say- he has no objection 
 then the justices take his plea, proceed to hear the witnesses, and con- 
 vict him, or dismiss the charge. 
 
 The justices may, remand the party for further examination ; or they 
 may allow him to go at large, upon his procuring a surety or sureties 
 to be bound by recognizance for his appearance at his further exami- 
 nation.^) 
 
 (e) Conviction and commitment. 
 
 The conviction may be drawn in the following form, or in any other 
 form to the same effect ; and which conviction shall be good and effec- 
 tual to all intents and purposes.(a)[l] 
 
 (o) 10 & 11 Vict. c. 82, ss. 1, 8. (d) 10 & ] 1 Vict u. 82, B . 5. 
 
 (i) Ante, pp. 40, 41. (e) Id. s. 9. 
 
 (c) 13 & 14 Vict. c. 37, a. 2. 
 
 [3] A conviction (in the sense in which it is here used,) is a record of the summary pro- 
 ceedings upon any penal statute, before one or more justices of the peace, or other persons 
 duly authorized; in a case where the offender has been convicted and sentenced. 
 
 The following observations on the form of a record of conviction, are principally intended 
 for those eases in which no directions are given by the statute authorizing this mode of pro- 
 ceeding in the particular instance. 
 
 When the conviction proceeds on the information of some person, and not on the justice's 
 own knowledge, that information should be set forth, stating the day when it was taken, 
 that it may appear to have been given within the, time limited by law ; the place where it 
 was taken, that it may appear that the justice was acting within the limits of his jurisdiction ; 
 the name of the justice or justices to whom it was given ; and if directed to be taken on oath, 
 it should be stated to be so taken. 
 
 The facts by which the information is supported, must have arisen before the information 
 was given ; for if they appear to be subsequent to the information, the conviction will be 
 quashed. The time of committing the offence must likewise be stated, for the same reason 
 as the time of giving the information, that from the day of the offence, and" the day of com- 
 mencing the prosecution, it may appear that it was commenced in due time, and also that 
 the party may be enabled to defend himself against a second charge. But the offence need 
 
 21 
 
60—2 CONVICTION OF JUVENILE OFFENDERS FOR LARCENY. 
 
 The following is the form given in the schedule to the statute : 
 
 [*61] * Conviction. 
 
 ) Be it remembered, that on the day of • , in the year 
 
 to wit: j of our Lord one thousand eight hundred and , at 
 
 not be proved to have been committed precisely on the day alleged; it has been held, that 
 it was sufficient to state that it was between such and such a time. 
 
 The information must state the place where the offence was committed, that it may ap- 
 pear to have arisen within the jurisdiction of the justice] and it must be proved to have been 
 committed in the place laid in the information; for where the jurisdiction of the magistrates 
 who try the offence is local, the offence must be proved to have been committed within their 
 jurisdiction. 
 
 The particular manner in which the offence was committed, must be set forth and de- 
 scribed in the manner directed by the act creating it an offence, that it may appear to come 
 within its provisions. 
 
 "Whenever the statute inflicts a penalty for an offence created by it, upon conviction be- 
 fore one or more justices of the peace, but there is an exception in the enacting clause, of 
 persons under particular circumstances, it is necessary to state in the information, that the 
 defendant is not within any of the exceptions. And it seems immaterial whether the excep- 
 tion be in the same section, or a preceding section, or in a preceding act, referred to by the 
 enacting clause. 
 
 But where the exemption is contained under a proviso, it is matter of defence, and there- 
 fore it is not necessary to state in the conviction that the defendant is not within such pro- 
 viso. 
 
 It is a fundamental rule, that the party should be summoned, before he is convicted. But 
 the defendant's appearance will, in this case, as in other cases of process, cure not only all 
 defects and informalities in the summons, but also the want of a summons^ 
 
 If the party, on being summoned, do not appear, proof having been made on oath of the 
 service of the summons, the justice may proceed to convict him, for he will not be allowed, 
 by his own default, to escape the penalty of the law. 
 
 The information should be read to the defendant, and he should be put to plead thereto: 
 that is, either to confess or deny it, before the justice proceeds to hear evidence in its sup- 
 port. 
 
 The defendant's confession of the charge before the justice, is the strongest evideilce of 
 the offence. For though a statute should direct a conviction to be "Upon the oath of one 
 or two credible witnesses,'' without adding, "Or, by confession of the offender," yet convic- 
 tion upon his confession before the justice, has been held sufficient ; and what is still stronger, 
 it has been held, that a confession made to others, and not to the justice, if proved by such 
 persons to his satisfaction, in the presence of the defendant, will be sufficient evidence to con- 
 vict. "Where the defendant confesses the charge, it seems to be sufficient only to state in 
 the conviction, the information, the defendant's appearance, the confession, and adjudication. 
 
 But a confession will extend no further than to the facts charged in the information; 
 therefore, if the offender be not brought by the information within the act upon which the 
 conviction is founded, the defendant's confession will not make the conviction good. 
 
 The informer, where he receives part of the penalty, cannot be a witness. For which rea- 
 son, it is requisite to name the witness in the conviction, that it may appear that it is not the 
 same person with the informer. 
 
 It is essential that the evidence be given in the presence of the defendant, that he may 
 have an opportunity of cross-examining the witness; and it must appear on the face of the 
 conviction, that the evidence was so given. But if it appear on the conviction, that the evi- 
 dence was given on the same day that the defendant appeared and pleaded, the court will 
 presume that it was given in his presenoe. 
 
CONVICTION AND COMMITMENT. 61 
 
 in the county of , [or riding, division, liberty, city., &C, as the case 
 
 may be,] A. 0. is convicted before us J. P. and Q. E., two of Her Ma- 
 jesty's justices of the peace for the said county, [&c.,] for that he the 
 said A. 0., did [specify the offence, and the time and place when and where 
 the same was committed, as the case may be, but without setting forth the evir 
 dence:] and we the said J. P. and Q. E., adjudge the said A. 0. for his 
 
 said offence to be imprisoned in the , [and there kept to hard labor] 
 
 for the space of , [or we adjudge the said A. 0.,for his said offence, 
 
 to forfeit and pay [here state the penalty actually imposed,'] and in 
 
 default of immediate payment of the said sum, to be imprisoned in the 
 
 [and there kept to hard labor] for the space of — ■ — , unless the said 
 
 sum shall be sooner paid.] 
 
 Given under our hands and seals, the day and year first above men- 
 tioned. 
 
 The justices may order restitution of the property stolen ; or if the 
 property be not forthcoming, they may order the offender to pay the 
 value of it to the prosecutor, at once or by instalments.(a) 
 
 (a) 10 & 11 Vict, a 82, s. 12. 
 
 The evidence should be set forth particularly in the conviction, that the court may judge 
 whether the justice lias convicted on proper evidence. 
 
 The conviction should state not merely the result of the evidence, hut the whole evidence 
 itself. It is not sufficient that the witness swear generally that the defendant was guilty of 
 the premises ; particular facts must be proved and stated. 
 
 The magistrate is the sole judge of the weight of the evidence ; and it is entirely and con- 
 clusively for his consideration, and he is placed in the situation of a jury, and the court be- 
 fore whom the conyiction is brought on appeal, will not substitute themselves in the place 
 of the justices acting as jurymen; they cannot judge of the credit due to witnesses whom 
 they did not hear examined, and can only look to the form of the conviction, and see that 
 the party, if convicted, has been convicted by legal evidence. 
 
 There must be a judgment in the conviction, stating not only that the defendant was 
 guilty, but likewise adjudging the fine or forfeiture to which the party is subjected. 
 
 The justice ought to give the defendant a copy of the conviction, if he demand it. 
 
 The form of conviction given by statute, must be strictly adhered to. Where a convic- 
 tion was drawn up in another form, &nd a warrant granted on it, it was held illegal, and that 
 an action of trespass lay against the justice, and those acting under it 
 
 The judgment should be stated in the present tense; but the previous parts of the record 
 of conviction may be in the past time, although it has been held that the whole of the record 
 should be in the present tense, which is, perhaps, the safest rule to pursue. 
 
 If the convicting magistrate give a proper date to the time of conviction upon the face of 
 it and afterwards add an impossible date when he sets his hand to the conviction, (being be- 
 fore the offence committed,) the latter may be rejected as surplusage. It is enough that the 
 conviction sets forth that the witness was examined on oath, without stating that the magis- 
 trate had authority to administer the oath. "Where a penalty is to be sued for, before jus- 
 tices of the peace, within a certain time after the offence committed, upon conviction for such 
 offence, it ought to appear on the face of the evidence stated in such conviction, that the 
 prosecution was in time ; and if the witness be only stated to haye mentioned the month in 
 which the offence was committed, omitting the year, and there be.no word of reference to 
 connect it witlr the true date, the omission cannot be supplied, either by reference to the 
 offence charged in the information, or by presumption arising from the justice having con- 
 victed the defendant. "Waterman's Treatise, p. 301-304- 
 
61 — 1 CONVICTION OP JUVENILE OFFENDERS FOR LARCENY". 
 
 Also, the justices are empowered to order that the prosecutor be al- 
 lowed his expenses.(a) 
 
 The following forms of warrants of commitment, are not given by 
 the schedule to the act : — 
 
 Warrant of Commitment on a Conviction where the punisment is by Im- 
 prisonment, &c. 
 
 To the constable of , and to the keeper of the [house of correction] 
 
 at , in the said [county] of . 
 
 "Whereas A. 0. was this day duly convicted before the undersigned, 
 [two] of Her Majesty's justices of the peace in and for the said [county] 
 of , for that [stating the offence as in the conviction,] and it was there- 
 by adjudged that the said A. O. for his said offence should be impris- 
 oned in the [house of correction] at , in the said county [and there 
 
 kept to hard labor] for the space of : these are therefore to com- 
 mand you, the said constable of , to take the said A. O., and him 
 
 safely convey to the [house of correction] at aforesaid, and there to 
 
 deliver him to the keeper thereof, together with this precept ; and I 
 
 do hereby command you the said keeper of the said [house of correction] 
 
 to receive the said A. 0. into your custody in the said [house 
 
 [*62] *qf correction,] there to imprison him [and keep him to hard labor] 
 
 for the space of ; and for your so doing this shall be your 
 
 sufficient warrant. 
 
 Given under my hand and seal, this day of , in the year 
 
 of our Lord , at , in the [county] aforesaid. 
 
 J. S. [L. s.] 
 
 Warrant of Commitment upon a Conviction for a Penalty. 
 
 To the constable of , and to the keeper of the [house of correction] 
 
 at , in the said [county] of . 
 
 Whereas A. 0. was on this day duly convicted before the under- 
 signed [two] of Her Majesty's justices of the peace in and for the said 
 [county,] for that [stating the offence as in the conviction /] and it was there- 
 by adjudged that the said A. 0. for his said offence should forfeit and 
 pay the sum of , [&c, as in the conviction,] and in default of imme- 
 diate payment of the said sum, to be imprisoned in the [house of correc- 
 tion] at in the said [county] [and there kept to hard labor] for the 
 
 space of , unless the said sum should be sooner paid : and where- 
 as the said A. 0. hath not paid the said sum or any part thereof, but 
 therein hath made default : these are therefore to command you the said 
 
 (a) 10 & 11 Vict. o. 82, ss. 16, 16, IT. 
 
DISMISSAL OF THE, CHARGE. 62 
 
 constable of , to take the said A. 0., and him safely to convey to 
 
 the [house of correction} at aforesaid, and there to deliver him to the 
 
 keeper thereof, together with this precept ; and I do hereby command 
 yon the said keeper of the said [house of correction] to receive the said 
 A. O., into your custody in the said [house of correction,] there to im- 
 prison him [and keep him to hard labor] for the space of , unless the 
 
 said sum shall be sooner paid : and for your so doing this shall be your 
 sufficient warrant. 
 
 Given under our hands and seals, this day of , in the year 
 
 of our Lord , at , in the [county] aforesaid. 
 
 J. v P. [L. S.] 
 
 Q. V R [l. s.] 
 
 This fine, if paid, is to be paid to the clerk of the convicting justices, 
 and by him to the county rate, or rate in the nature of a county rate 
 for the county, city, &c. in which the offence was committed.(a) 
 
 (c) Dismissal oj the charge. 
 
 If the justices, upon the hearing of any such case, shall deem the 
 offence not to be proved, or that it is not expedient to inflict any pun- 
 ishment, they shall dismiss the party charged, on finding surety or sure- 
 ties for his future good behavior, or without such sureties, and there 
 make out and deliver to the party a certificate of his dismissal ;(b) 
 which certificate shall release the party from all further or other pro- 
 ceedings for the same cause.(c) 
 
 (a) 10 <Ss 11 Vict. o. 82, s. 6. (b) Id. s. 1. (c) Id. s. 3. 
 
[•68] CHAPTER III. 
 
 INDICTMENT AND PLEADINGS. 
 
 Section I. Indictment, p. 63. 
 1. Venue, p. 63. 
 
 (a) What, p. 63. 
 
 (b) General rule, p. 63. 
 
 (c) Offences in a county of a city or town corporate, p. 
 
 64. 
 
 (d) Offences on a journey or voyage, &c, p. 64. 
 
 (e) Offences on the boundaries of counties, p. 65. 
 
 (/) Offences begun in one county and completed in an- 
 other, p. 65. 
 (g) Offences in England, partly out, p. 65. 
 Qi) Offences abroad, p. 66. 
 {%) Offences at sea, p. 66. 
 (J) Murder and manslaughter, p. 68. 
 (k) Libel, p. 68. 
 (I) Larceny, p. 69. 
 (m) Embezzlement, p. 69. 
 (n) False pretences, p. 70. 
 (o) Stealing from wreck, p. 71. 
 (p) Receivers, p. 71. 
 (q) Forgery, p. 71. 
 (r) Treason or conspiracy, p. 72. 
 (s) Unlawful oaths, p. 72. 
 (<) Foreign service, p. 72. 
 (w) Inciting to mutiny, p. 72. 
 (v) Smuggling, p. 72. 
 (m>) Posit 0#ice, p. 73. 
 (x) Counterfeit coin, p. 73. 
 (y) Escape and rescue from prison, p. 73. 
 (a) Returning from transportation, p. 73. 
 (<ra) Sending a challenge to fight, p. 74. 
 (bb) Threatening letter, p. 74. 
 (cc) Bigamy, p. 74. 
 (c?rf) For an offence of omission, p. 74. 
 (ee) Accessories before the fact, p. 74. 
 Qf ) Accessories after tJiefact, p. 75. 
 (g'P 1 ) Central criminal court, p. 75. 
 (A/i) Defective venue cured, p. 75. 
 
INDICTMENT AND PLEADINGS. 63 — 1 
 
 2. Commencement of the Indictment, p. 76. 
 
 3. Body of the Indictment, p. 78. 
 
 (a) Defendant, how named, p. 78. 
 
 (b) Prosecutor or party injured, how named, p. 79. 
 (e) Place, p. 85. 
 
 id) Statement of the offence, p. 85. 
 
 (e) Intent, p. 87. 
 
 (/) Statement must be positive, p. 87. 
 
 (g) Statement 'must be certain, p. 87. 
 
 (h) Statement must not be repugnant, p. 91. 
 
 (i) Technical words, p. 91. 
 
 4. Conclusion of the Indictment, p. 92. 
 
 (a) Against the peace, p. 92. 
 
 (b) Against the form of the statute, p. 92. 
 
 (c) Want of a proper conclusion, p. 93. 
 
 5. Joinder of offences, p. 93. 
 
 (a) Several counts for the same offence, p. 93. 
 (6) Second count for a different offence, p. 95. 
 
 6. Joinder of defendants p. 96. 
 
 7. Indictment, how preferred and found, p. 97. 
 
 (a) /?z wAa< cases defendant to have a copy, p. 99. 
 
 8. Indictment, in what cases amendable, p. 99. 
 
 (a) For variance as to written instruments, p. 100. 
 
 (b) For variance in other respects, p. 100. 
 
 9. Indictment, when and how quashed, p. 102. 
 Section II. Appearance and Plea, p. 102. 
 
 1. Process upon Indictment to outlawry, p. 102. 
 
 (a) Process, p. 102. 
 
 (b) Outlawry, p. 103. 
 
 (c) Bench warrant, p. 103. 
 
 (d) Warrant of justice out of sessions, p. 104. 
 
 2. Arraignment and plea, p. 107. 
 
 (a) Arraignment, p. 107. 
 (6) Standing mute, p. 109. 
 
 (c) Pfea, p. 109. 
 
 (d) Traverse, p. 110. 
 
 3. Special pleas, p. 110. 
 
 (a) Pleas in abatement, p. 110. 
 
 (b) Auterfois acquit, p. 111. 
 
 (c) Auterfois convict or attaint, p. 114. 
 , (d) Pardon, 114. 
 
 (e) Pleas to indictments for not repairing highways, 114. 
 
 4. Demurrer, p. 114. 
 
 (a) Demurrer to indictment, p. 115. 
 
63 % . INDICTMENT. 
 
 SECTION I. 
 
 INDICTMENT. 
 
 An indictment is an accusation at the suit of the crown, found to he 
 true by the oaths of a grand jury.(a)[l] It consists of the venue, the 
 commencement, the statement of the offence, and the conclusion ; and 
 in this order I shall treat of it. 
 
 (a) 2 Hawk. o. 25, s. 1. 
 
 [1] An indictment may be defined to be a written accusation of one or more persons of a 
 crime presented upon oath by a jury of twelve or more men, termed a grand jury. In the 
 language of Lord Hale, it is a plain, brief, and certain narrative of an offence committed by 
 any person, and of those necessary circumstances that concur to ascertain the fact and its 
 nature. 2 Hale, 169. In general, the rules and principles of pleading, with respect to the 
 structure of a declaration, are applicable to an indictment, (2 Stra. 904,) and therefore, where 
 the criminal law, as to the form of an indictment in a particular case, is silent, resort may be 
 had to decisions on the requisites of pleading in civil actions. ^Strictly speaking, an indict- 
 ment is not so called until it has been found " a true bill" of the grand jury. Before that it 
 is termed a bill only. 
 
 "No person shall be held to answer for a capital, or otherwise infamous crime, unless on 
 a presentment or indictment of a grand jury, except in cases arising in the land or naval 
 forces, or in the militia, when in actual service, in time of war, or public danger; nor shall 
 any person be subject, for the same offence, to be twice put in jeopardy oflife or limb ; nor 
 shall be compelled, in any criminal cage, to be a witness against himself; nor be deprived 
 oflife, liberty, or property, without due process of law; nor shall private property be taken 
 for public use, without just compensation." Const. U. S. Art. 5. See "Waterman's Criminal 
 Law, tit. Indictment. 
 
 A presentment properly speaking, is an accusation made by a grand jury of an offence 
 upon their own observation and knowledge, or upon evidence^before them, and without any 
 bill of indictment laid before them at the suit of the government. After the presentment 
 has been delivered into court by the grand inquest, an indictment is framed upon it by the 
 officer of the court ; for it is regarded merely as instructions for an indictment, to which the 
 party accused must answer. 4 Blk. Com. 301. 
 
 "There is another mode of prosecution, which exists by the common law in regard to 
 misdemeanors ; though these are ordinarily presented upon indictments found by a grand 
 jury. This mode is by information, usually at the suit of the government or its officers. An 
 information generally differs in nothing from an indictment, in its form and substance, ex- 
 cept that it is filed at the mere discretion of the proper law officer of the government, ex 
 officio, without the intervention of a grand jury. This process is rarely recurred to in 
 America ; and it has never yet been formally put in operation by any positive authority of 
 congress, under the national government, in mere cases of misdemeanor, though common 
 enough in civil prosecutions for penalties and forfeitures. 3 Story on the Const 659. In 
 Pennsylvania there is a constitutional provision against proceeding by information in any 
 case where an indictment lies; (Const, art. 9, § 10 ;) and the same restriction exists in seve- 
 ral of the other states. State v. Mitchell, 1 Bay, 267 ; Glea/rly v. Desselin, 1 McCord, 35. In 
 New York, (Const, art. 7, § 7,) and in Virginia, (Davis's 0. Law, 422,) the limitation is con- 
 fined to cases of infamous crime. In New Hampshire, it obtains in all cases, where the 
 punishment is death or confinement at hard labor. Rev. Stat. N. Hamp. 457. In Vermont, 
 a distinction of the same character is made. Rev. Stat. Ver. chap. cii. In the latter state, 
 
WHAT. 63—3 
 
 1. Venue.[2] 
 (a) What. 
 
 The venue is the county, &c, stated in the margin of the indictment, 
 and is descriptive of the extent of the jurisdiction of the court before 
 which the offender is to be tried : — in indictments to be tried at the as- 
 sizes, the venue is the county or county of a city, &c, to which the 
 judges' commission relates ; in indictments to be tried at the sessions, 
 the county, riding, division, city, or borough to which the commission 
 of the peace extends. In indictments for offences triable at the central 
 criminal court, the venue is merely " Central Criminal Court, to wit," 
 being descriptive of a certain district, namely, the county of Middle- 
 sex, the city of London, and parts of the counties of Essex, Kent, and 
 Surrey, within which the court has jurisdiction. 
 
 (b) General rule. 
 
 The general rule as to venue, is that a person who has committed 
 an indictable offence, if tried at the assizes, must be indicted and tried 
 in the county in which the offence was commited ; if tried at the ses- 
 sions, in the county, riding, division, city, or borough within 
 which the *offence was committed, and for which a court of quar- [*64] 
 ter sessions is holden.[l] But to this there are many exceptions, 
 mostly created by statute, which I shall now proceed to notice. 
 
 in fact, it has been decided by the Supreme Court, that the provision in the federal constitu- 
 tion, (Constitution U. S., art. 5,) applies only to cases in the United States courts. 
 State v. Keyes, 8 Vermont, 5*7. In Massachusetts, it has been laid down as a general rule, 
 that all public misdemeanors which may be prosecuted by indictment, may be prosecuted 
 by information on behalf of the commonwealth, unless the prosecution be restrained by the 
 statute to indiqtment." Com. v. Waterboroiigh, 5 Mass. 251, 259. Wharton's Cr. Law, 
 pp. 60, 61. 
 
 [2] Venue is derived from the Latin visnetum, neighborhood. The original and proper 
 form of the word seems to have been visne, being that in which it occurs in the oldest re- 
 ports. Venue seems properly to denote a coming, (from verier, to come,) and is so used in 
 the Statute of Westminster. 1 Bnrrill's Law Diet. tit. Venue. 
 
 [1] At common law, the venue should always be laid in the county where the offence is 
 committed, although the charge is in its nature transitory, as seditious words or battery, 
 (Hawk. b. 2, c. 25, a. 35 ;) and it does not lie on the prisoner to disprove the commission of 
 the offence in the county in which it is laid, but it is an essential ingredient in the evidence 
 on the part of the prosecutor, to prove that it was committed within it. 2 New Rep. 92 ; 
 2 Leach, 634 ; 2 East P. C. 605. And in the earlier periods of our history, it was even 
 necessary that the offence should be tried by a jury of the visne or neighborhood who were 
 then regarded as more likely to be qualified to investigate and discover the truth, than per- 
 sons living at a distance from the scene of the transaction ; it being a maxim of the com- 
 mon law, quod ibi semper debet fieri triatio ubi jivratores meliorem possunt habere noHtium. 
 Co. Lit. 125, a & b. u. 1 ; 6 Co. 14 b. ; 2 T. R. 240 ; 2 Hale, 163. It seems, that until very 
 recently, the right to challenge for want of hundredors, existed, (id. ibid. ;) and although the 
 practice had fallen into disuse, the right was not actually abrogated until the act of 6 (Jeo, 
 
 22 
 
6-L INDICTMENT. 
 
 (c) Offences in a county of a city or town corporate. 
 
 By stat. 38 G. 3, c. 52, s. 2, the indictment for an offence committed 
 or charged to be committed within the county of any city or town cor- 
 porate, may be referred to the jury of the county next adjoining to 
 the county of such city or town corporate, sworn and charged to en- 
 quire for the King, for the body of such adjoining county, at any ses- 
 sions of oyer and terminer or general jail delivery. The statute(a) 
 however, requires the prosecutor in such a case to enter into recogni- 
 zance in 401, before the court where such bill shall be preferred, con- 
 ditioned to pay the extra costs of the prosecution, if the court at the 
 trial shall be of opinion that he- ought to pay the same. The words 
 " town corporate," in the above act, mean, a town corporate which is a 
 county of itself, such as Kingston-upon-Hull, &c.(Z>) But the statute(c) 
 
 (a) Sec. 12. («•) Sec. 11. 
 
 (b) R. v. Milner, 2 Car. & K. 310. 
 
 4, u. 50, by which it was taken away. The venue was always regarded as a matter of sub- 
 stance, and therefore, at common law, when the offence was commenced in one county and 
 consummated in another, the venue could be laid in neither, and the offender went alto- 
 gether unpunished, 1 Hale, 651, 652 ; Hawk. b. 2, c. 25, § 36 ; Bac. Ab. indictment, F. ; 
 and see the preamble of the 2d & 3d Edw. 3, c. 24. Thus, under the statute of 8 Hen. 6, 
 c. 12, against stealing records, it was holden, that if the offence were committed partly in 
 one county, and partly in another, the offender could be punished in neither, , except for the 
 misprision of felony. 1 Hale, 652, 653 ; Hawk. b. 2, c. 25, § 36, 40. Thus also under the 
 3 Hen. 7, c. 2, against the forcible abduction and marriage of an heiress, it appears to have 
 been considered, that if the forcible abduction were confined to one county, and the mar- 
 riage took place in another, no trial could be had in either ; though if the forcible abduction 
 had been continued into the county where the marriage took place, the offence would be 
 there completed, and there the offender might be tried. Cro. Car. 488 ; Hob. 183; Hawk. 
 b. 2, c. 25, § 40. And thus also, if a mortal blow was given in one county, and, the party 
 died in consequence of the blow in another, it was doubted whether the murder could be 
 punished in either, for it was supposed that a jury of the first could not take notice of the 
 death in the second, and a jury of the second could not enquire of the wounding in the first. 
 1 East, P. C. 361 ; Bac. Abr. Indictment, E. ; Hawk. b. 2, c. 25, § 36. See recital in 2d & 
 3d Edw. 6, c. 24, b. 2. So also before the stat. 28 Hen. 8, c. 15, the offences therein men- 
 tioned, if committed on the high seas, could not be tried on shore, (2 New Hep. 91 ; Dougl. 
 791 ; 1 Taunt. 26 ;) and a felonious taking in Scotland or Ireland could not be tried here, 
 though the party brought the goods with him into this part of the United Kingdom. 2 
 East, P. C. 772 ; 13 Geo. 3, c. 31, § 4, 5; 44 Geo. 3, c. 92, § 7, 8. And the same objection 
 arose in case of accessories in one county, to a felony committed in another. 1 Hale, 62, 
 63 ; Staundf. b. 1, c. 46 ; and see preamble 2 & 3 Edw. 6, c. 24. 
 
 At common law, however, if a party steal goods in the county of A. and carry them into 
 the county of B. he may be indicted or appealed of larceny in the latter county. But this 
 does not contradict the general rule, but is founded upon another principle, viz. that the 
 possession of goods stolen by the thief is a larceny in every county into which he carries the 
 goods, because the legal possession still remaining in the true owner, every moment's con- 
 tinuance of the trespass and felony amounts, in legal consideration, to a new caption and 
 asportation. 2 East, 771-2. So although matter of inducement constituting no part of the 
 offence happen abroad, but the crime itself be committed in any county in England, the 
 offender may be indicted here ; as where a man marries one wife in France, and afterwards 
 another in England, during the life-time of the former. KeL 15. 
 
OFFENCES IN A COUNTY OP A CITY OR TOWN CORPORATE. 64 — 1 
 
 specially excepts London, Westminister, and the borough of South- 
 wark : and the cities of Bristol, Chester, and Exeter are excepted from 
 it by stat. 5 & 6 W. 4, c. 76, s. 109. Bat now by stat. 14 & 15 Vict: c. 
 55, s. 19, all offences committed in any " county of a city or county of 
 a town corporate, within which Her Majesty has not been pleased for 
 five years next before the passing of this act, to direct a commission of 
 oyer and terminer and general jail delivery to be executed," and which 
 are not triable at the quarter sessions, may be tried in the next adjoin- 
 ing county. And by sect. 24, the next adjoining county shall be the 
 same as is named in sched. 0. to stat. 5 & 6 ~W. 4, c. 76 ; by which the 
 county of Northumberland is the next adjoining county to Berwick- 
 upon-Tweed, and to Newcastle-upon-Tyne, and Yorkshire the next ad- 
 joining county to Kingston-upon-Hull. By the same schedule, Glou- 
 cestershire is declared to be the next adjoining county to Bristol, Che- 
 shire to Chester, and Devonshire to Exeter ; but at those cities the 
 assizes are holden.[2] 
 
 [2] Receivers of stolen property may be indicted in any county where they received, or 
 had such property, notwithstanding the theft was committed in another county. 
 
 Where an offence is committed on the boundary of two counties, or within five hundred 
 yards of the boundary, an indictment may be found in either of such counties. 
 
 New York. — A. stole a gun in New Jersey, and was apprehended with it in New York, 
 held that he should be delivered- up to the government of New Jersey as a fugitive from 
 justice, and could not be tried in. New York. 2 Johns 479; same point, The People v. 
 Gardner, 2 Johns. 477. 
 
 Pennsylvania. — A. person who steals goods in another state, and. brings them into this 
 state cannot be indicted here for felony. He is to be treated as a fugitive from justice. Sim- 
 mons v. The Commonwealth, 5 Binney, 617. So in North Carolina, State v. Brown, 1 Hayw. 
 100; see also M'CuUough's case, 2 Rogers' Rec. 45. 
 
 Massachusetts. — One was indicted for larceny in one county, and the evidence at the 
 trial was, that the goods were stolen in another county, and brought into the county where 
 the indictment was found, by two persons other than the prisoner, who came afterwards, 
 and joined them in the possession and disposal of them. His conviction upon this evidence 
 was held good. 10 Mass. 154; Commonwealth v, Cousins, 2 Leigh, 708. 
 
 It has been decided, that if a person steal, goods in one of the United States, and convey 
 them into another, where they are received by another person, such receiver is liable to an 
 indictment in the latter state. Commonwealth v. Andrews, 2 Mass. 14. And in Connecticut, 
 it has been the uniform practice to sustain criminal prosecutions against persons stealing in 
 other states, and fleeing into that state with the property stolen. Rex v. Peas, 1 Root, 69. 
 See also, State v. Ellis, 3 Conn. 185 ; People v. Burke, 11 Wendell, 129 ; United States v. 
 Davis, 5 Mason, 356 ; Commonwealth v. Cullen, 1 Mass. 115 ; see, respecting the form of the 
 indictment in cases of receiving stolen goods, Petts v. State, 3 Blackf. 28 ; Eolford v. State, 
 2 Blackf. 103 ; Redman v. State, 1 Blackf. 429. 
 
 Pennsylvania. — An indictment against, accessories in felony, may be in the county 
 where the offence of accessory was committed, though the principal felony was committed 
 in another county. 1 Smith Laws Penn. 119. 
 
 But if the nature of the property be changed, an indictment for stealing the article in its 
 original state cannot be preferred in the county into which, when so changed, the property 
 is carried. R. v. Mwards, R. & R. 497 ; R. v. Halloway, 1 C. & P. 127. Nor where seve- 
 ral commit a joint felony in the county of A., and there divide the goods, and afterwards 
 separately carry each his respective share into the county of 1 B., can they be indicted for a 
 
64 — 2 INDICTMENT. 
 
 By stat. 14 & 15 Vict. c. 100, s. 23, in suck a case the county of the 
 city or town shall be deemed the venue, and may either be stated in 
 the margin of the indictment, with or without the name of the county 
 in which the offender is to be tried, or be stated in the body of the in- 
 dictment by way of [special] venue. The usual form of the marginal 
 venue is thus : — " County of York (being the next adjoinvng_ county to the 
 county of the town of Kingston-upon-Hull,) to wit:" or as the case may 
 be. [3] 
 
 (d) Offences on a journey or voyage, &c. 
 
 Where any felony or misdemeanor shall be committed on any per- 
 son, — or in respect of any property, — in or upon any coach, 
 [*65] wagon, cart, *or other carriage whatsoever, employed in any 
 journey, — or shall be committed on any person, or on or in re- 
 spect of any property, on board any vessel whatever employed on any 
 voyage or journey upon any navigable river, canal, or inland naviga- 
 tion : — such felony or misdemeanor may be dealt with, enquired of, 
 tried, determined, and punished in any county, through any part where- 
 of such coach, wagon, cart, carriage, or vessel shall have passed, in the 
 course of the journey or voyage during which such felony or misde- 
 meanor shall have been committed, in the same manner as if it had 
 been actually committed, in such county.(a)[l] 
 
 ~ (a) 7 G. 4, c. 64, s. 13. 
 
 joint felony in the latter county. R. v. Barnet, 2 Russ. 114. But if two persons steal a 
 thing in one county, though one of them alone carry the property into another county, yet, 
 if both afterwards co-operate to secure the thing in the latter county, both may be indicted 
 in the latter county ; for the subsequent concurrence may be connected with the previous 
 taking. R. v. Gownty, 2 Russ. 175 ; R v. M'Donagh, Gar. Supp. 23. The taking into the 
 second county, however, must be animo fwandi ; the mere possession there is not suffi- 
 cient. A constable took the defendant with two stolen horses in Surrey, and afterwards, at 
 his request, rode with him on the horses into Kent, where he escaped ; the defendant was 
 afterwards indicted in Kent, and the judges were unanimously of opinion that there was no 
 evidence of stealing in Kent. R. v. Simmonds, 1 Mood. C. C. 408. 
 
 [3] The venue is stated in the margin next after the caption, thus : — " Saratoga County, 
 ss." — " City and County of New York, ss." See The United States v. Grush, 5 Mason, 290, 
 302. "Where an indictment commences, "State of Tennessee, Hardin County, and the 
 offence is laid to have been committed "in the county aforesaid," the venue is well laid. 
 Barnes v. State, 5 Terger, 186. In North Carolina, it is held, that an indictment is suffi- 
 cient without a venue, if it lays the commission of the offence withiu the jurisdiction of the 
 court. State v. Glasgow, Cam. & Nor. 38, and an indictment ought to show expressly, that 
 the county in which the offence was committed was within the jurisdiction of the Court. 
 State v. Adams, Martin (N. Car.) 33. The place where the offence was committed, must be 
 charged on the body of the commitment; it is not sufficient to charge it in the margin only. 
 Missowi v. OooJc, 1 Miss. 64'T. See Stephens's case, 2 Leigh, 159 ; State v. Godfrey, 3 
 Fairf. 361. 
 
 [1] When an offence shall have been committed within this state, on board of any vessel, 
 an indictment may be found in any county through which or any part of which such vessel 
 
OFFENCES ON THE BOUNDARIES OF COUNTIES. 65 
 
 And in all cases where the side, centre, or other part of any highway, 
 or the side, bank, centre, or other part of any such canal, river, or navi- 
 gation, shall constitute the boundary of any two counties, such felony 
 or misdemeanor may be dealt with, enquired of, tried, determined and 
 punished in either of the said counties, through, adjoining to, or by the 
 boundary of any part whereof such coach, wagon, cart, carriage or 
 vessel shall have passed, in the course of the journey or voyage during 
 which such felony or misdemeanor shall have been committed, in the 
 same manner as if it had been actually committed in such county.(a) 
 
 (e) Offences on the boundaries of counties. 
 
 Where any felony or misdemeanor shall be committed on the boun- 
 dary or boundaries of two or more counties, — or within the distance of 
 500 yards of any such boundary or boundaries, — every such felony or 
 misdemeanor may be dealt with, enquired of, tried, determined, and 
 punished, in any of the said counties, in the same manner as if it had 
 been actually committed therein.(6)[2] 
 
 This has been holden not to extend to trials in limited jurisdictions, 
 but to be confined to trials in counties only ; and where a man was 
 tried for larceny at the sessions of the borough of Southwark, it ap- 
 pearing that the offence was in fact committed in the city of London, 
 about twenty yards within the boundary between it and the borough ; 
 and being afterwards indicted for the same larceny in London, he plead- 
 ed auterfois acquit: the judges held the plea to be bad, as the sessions 
 had no jurisdiction to try the offence, this section of the statute extend- 
 ing only to trials in counties, and not to trials in limited jurisdiction. (c) 
 
 {/) Offences begun in one county and completed in another. 
 
 Where any felony or misdemeanor shall be begun in one county and 
 completed in another, it may be dealt with, enquired of, heard, deter- 
 mined, and punished in either county, as if it were wholly committed 
 therein.(<2)[3] 
 
 (a) 7 G. 4, 0. 64, s. 13. (d) 7 G. 4, o. 4. s. 12 ; see R. v. Welsh, 
 
 (6) 7 G. 4, u. 64, s. 12. supra r 
 
 (c) R. v. Welsh, By. & M. 175. 
 
 shall be navigated in the course of the same voyage or trip, or in the county where such 
 voyage or trip shall terminate. Where the mortal wound, &c. is given in one county, and 
 death takes place in another, the indictment may be found in the county where the death hap- 
 pened. 
 
 [2] There is a similar statute in New York. 2 E. S. 4th ed. p. 910, sec. 45. In Massa- 
 chusetts and Maine, any offence committed on the boundary of two counties, or within one 
 hundred rods of the dividing-line, may be alleged in the indictment to have been committe,d, 
 and may be prosecuted and punished in either county. R. S. of Mass. ch. 133, sec. 7 ; R. S. 
 of Maine, ch. 166, sec. 4. Also, in Wisconsin. R. S. of Wis. ch. 141, sec. 7. 
 
 [3] See 2 R. S. 4th ed. p. 911, sees. 47 and 50; R. S. of Wis. ch. 141, sees. 8, 9; R. S. of 
 Mass. ch. 133, sec. 8 ; R. S. of Maine, ch. 166, sees. 5 and 6. 
 
65 — 1 INDICTMENT. 
 
 (g) Offences partly in JSngland, partly out. r\ 
 
 Where any person, previously stricken, poisoned, or other- 
 [*66] wise hurt *upon the sea, or at any place out of 'England, shall 
 die of such stroke, poisoning, or hurt in England, — or being fe- 
 loniously stricken, poisoned, or otherwise hurt at any place in England, 
 shall die of such stroke, poisoning, or hurt upon the sea, or at any place 
 out of England, — every offence committed in respect of any such case, 
 whether the same amount to the offence of murder or manslaughter, 
 or of being accessory before the fact to murder, or after the fact to 
 murder or manslaughter, — may be dealt with, enquired of, tried, deter- 
 mined, And punished, in the county or place in England in which such 
 death, stroke, poisoning, or hurt shall happen, in the same manner as 
 if the offence had been wholly committed in that county or place.(a)[l] 
 
 (h) Offences abroad. 
 
 By stat. 9 Gr. 4, c. 31, s. 7, if any of His Majesty's subjects shall- be 
 charged in England with any murder or manslaughter, or with being 
 accessory before the fact to any murder, or after the fact to any mur- 
 der or manslaughter, the same being respectively committed on land 
 out of the United Kingdom, whether within the King's dominions or 
 without, — a commission of oyer and terminer under the great seal shall 
 be directed to such persons, and into such county or place, as shall be 
 appointed by the Lord Chancellor, for the speedy trial of such offender ; 
 peers however are in such cases to be tried by their peers. The venue 
 in the margin of the indictment, in such a case, should be the county 
 in which the special commissioners are directed by their commission to 
 sit. Where the indictment stated the offence to have been committed 
 at Boulogne, in the kingdom of Prance, to wit, at London, &c. ; and 
 the grand jury objected to it, as stating the death to have happened at 
 two places, — Bayley, J. ordered the words " at London," &c, to be 
 struck out.(6) The admission of the prisoner that he is a British subject, 
 is good evidence that he is so.(c) 
 
 (a) 9 G. 4, u. 31, s. 8. R. v. Depardo, R. & By. 134 ; R. v. Sawyer, 
 
 (6) R. v. Eelsham, 4 Car. & P. 394 2 Car. & K. 101 ; and see Stat. 11 k 12 Vict, 
 
 (c) Id. ; see R. v. Matts, 7 Car. & P. 458 ; c. 42, s. 2 ; and ante, p. 35. 
 
 [1] In Massachusetts, by Statute 1795, oh. 45, (R. S. ch. 123, sees. 8, 9,1 when any per- 
 son is feloniously struck, poisoned, or injured in one county, and dies of the same stroke, &c. ' 
 in another county — and when any person is struck, Ac. on the high seas, without the limits 
 of the state, and dies of the same stroke in the state, the offender may be indicted and tried 
 in the county where the death happened. This statute is not repugnant to the declaration in 
 the constitution of the state, that in criminal prosecutions, the verification of the facts in the 
 vicinity where they happen, is one of the greatest securities of the life, Ac. of the citizen. 
 Commonwealth v. Parker, 2 Pick. 560. 
 
OFFENCES AT^SEA. 68 
 
 Also, for misdemeanors committed abroad, by persons holding pub- 
 lic offices or employments under the British government, the offenders 
 may in like manner be tried, &c, in this country.(a) 
 
 (b) Offences at sea. 
 
 The venue in indictments for offences committed at sea, within the 
 jurisdiction of the Admiralty, varies according to the court in which 
 the offender is prosecuted : — if proceeded against before a special com- 
 mission, which was the only mode of prosecution formerly, the venue 
 in the margin is merely " Admiralty of England ;" if at the central 
 criminal court, "Central Criminal Court, to wit;" if at the 
 *assizes, the county in which the assizes are holden. Besides [*67] 
 thus noticing the venue, it may be convenient in this place to 
 make a short statement as to the extent of the Admiralty jurisdiction, 
 and the offences of which the admiral is said to have cognizance. [1] 
 
 (a) 42 G. 3, c. 85 ; see R. v. Shawe, 5 M. & S. 403. 
 
 [1] The United States have no unwritten criminal code to which resort can be had as a 
 source of jurisdiction. U. S. v. Hudson & Goodwin, 7 Cranch, 32; U. S. v. Coolridge,,! 
 "Wheat. Eep. 415 ; XT. S. v. Beavans, 3 Wheat. 336; U. S. v. Wiltberger, 5 Wheat. T6. 
 
 The act of Congress gives to the district courts, exclusive of tne state courts, and concur- 
 rently with the circuit courts, cognizance of all crimes and offences cognizable under the au- 
 thority of the United States, and committed within their districts, or upon the high seas, 
 where only a moderate corporal punishment, or fine or imprisonment, is to be inflicted. This 
 is the ground of the criminal jurisdiction of the district courts ; and it is given to them as dis- 
 trict courts ; and as it includes the minor crimes and offences committed on the high seas, 
 and cognizable in the courts of admiralty under the English law, the district courts may be 
 considered as exercising the criminal jurisdiction of a court of admiralty in those cases. The 
 Constitution of the United Stales declares, that the judicial power of the Union shall extend 
 to all cases of admiralty and maritime jurisdiction ; and it has" been supposed that the federal 
 courts might, without any statute, and under this general delegation of admiralty powers, 
 have exercised criminal jurisdiction over maritime crimes and offences. But the courts of 
 the United States have been reluctant to assume the exercise of any criminal jurisdiction in 
 admiralty cases, which was not specially conferred by an act of congress. 1 Kent's Com. 
 7th ed. p. 390-391. 
 
 The errant in the Constitution, of judicial power, to the government of the United 
 States, in all cases of admiralty and maritime jurisdiction, is without limitation, and, of 
 course, embraces criminal as well as civil cases. It is under this grant alone, that the fed- 
 eral government have the right to punish a large class of offences whose punishment is pro- 
 vided for, in the acts of Congress in relation to crimes and offences on the high seas. In 
 these acts, the various offences are not classed or described as admiralty cases, but they are 
 indiscriminately arranged with other descriptions of crimes subject to the federal jurisdiction. 
 They will be found in the crimes acts of 1790, of 1804, of 1820, of 1825, and of 1835, in va- 
 rious sections, providing for the punishment of crimes and offences committed " on the high 
 seas, or in any arm of the sea, or in any river, harbor, creek, basin or bay, or in any other 
 waters within the admiralty and maritime jurisdiction of the United States." The power of 
 the federal government to punish these offences, is derived from the admiralty and maritime 
 grant in the Constitution ; and of all of them which are not capital, the district court has ju- 
 risdiction. If committed within any distriot, the trial must be in that district; and if upon 
 
67 INDICTMENT. 
 
 The admiral has exclusive jurisdiction of all offences committed on 
 the high seas, arid within the harbours, creeks, and havens of foreign 
 countries. But within the harbours, creeks, and havens of this coun- 
 try, the courts of common law, and not the admiral,, have jurisdiction : 
 as for instance, if an imaginary line were drawn across the mouth of 
 such creek, &c, from one point of land to the other, — of all offences 
 committed within the line, the common law would have jurisdiction; 
 but all offences committed without the line, would be within the juris- 
 diction of the admiral. As to the sea shore : — below low water mark, 
 the admiral has exclusive jurisdiction; above high water mark, the 
 courts of common law have exclusive jurisdiction ; and between high 
 and low water mark, the courts of common law and the admiral have 
 alternate jurisdiction,— the courts of common law have jurisdiction of 
 all offences committed on the strand when the tide is out, — the admiral 
 jurisdiction of all offences committed on the water, when the tide is in. 
 Formerly, if a man on land fired a pistol or gun at a man who was 
 upon the sea, and killed him, the offence was deemed to be within the 
 
 the high seas, out of the district, then in the district where the offender is apprehended, or 
 into which he may be first brought. Those who contend for the narrow jurisdiction of the 
 admiralty, have not alwas considered what would be its effect upon the criminal jurisdiction 
 of the general government. 
 
 Under the general provisions that, in admiralty and maritime cases, the mode of proceed- 
 ing should be according to the usages of courts of admiralty, the trial of maritime offences 
 must have been according to the usage of admiralty courts, had not the Constitution and 
 amendments otherwise provided : 
 
 "The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial 
 shall be held in the state where the said crimes shall have been committed, but when not 
 committed within any state, the trial shall be at such place or places as the congress may, 
 by law, have directed." 
 
 " No person shall be held to answer for a capital, or otherwise infamous crime, unless on 
 presentment or indictment of a grand jury, except in cases arising in tine land or naval forces, 
 or in the militia when in actual service, in time of war or public danger." 
 
 " In all criminal prosecutions, the accused shall enjoy the right to a speedy and public 
 trial by an impartial jury of the state and district where the crime shall have been commit- 
 ted, which district shall have been previously ascertained by law, and to be informed of the 
 nature and cause of the accusation, to be confronted with the witnesses against him, to have 
 compulsory process for obtaining witnesses in his favor, and to have the assistance of coun- 
 sel for his defence." 
 
 The practical operation of these provisions, has been to make the practice of the admiralty, 
 in criminal cases, the same as the practice of the courts of common law, in like cases. The 
 cases are none the less cases of admiralty and maritime jurisdiction, although, like criminal 
 cases in the English admiralty, they are tried before a jury, and, from the beginning, con- 
 ducted after the manner of trials at common law, in criminal cases. The proper effect of 
 those provisions is not, however, to adopt, in such cases, the practice of the state courts, but 
 the practice must be according to the usage of admiralty courts, subject to the limitations of 
 the Constitution, the amendments, and the acts of congress. 
 
 The powers ususally exercised by justices of the peace, and other magistrates in the states, 
 of issuing warrants for crimes, making preliminary examinations, and committing, are usu- 
 ally exercised by the United States commissioners, by virtue of the act of August 23, 1842. 
 Benedict's Am. Admiralty, p. 314-316. 
 
OFFENCES AT SEA. 67—1 
 
 Admiralty jurisdiction ; for the offence was holden to be committed 
 where the death happened, and not at the place from whence the cause 
 of death proceeded.(a) But now, in such a case we have seen,(5) he 
 may be tried in the same manner as if the whole of the offence was 
 committed on land.(c) Also, all offences committed on the high seas 
 against any Act relating to the customs, shall, for the purposes of pros- 
 ecution, be deemed to have been committed on the place on land in the 
 United Kingdom into which the offender shall be taken, brought, or 
 carried, or in which he shall be found. (d)[2] 
 
 Besides the offence of piracy, and some, other offences which can only 
 be committed at sea, the admiral has jurisdiction of all treasons, felo- 
 nies, conspiracies ;(e) murder ;{g) attempts to murder or maim or do 
 
 (a) E. v. Combes, 1 East,. P. C. 36?. c, 87, s. 95. 
 
 (b) Ante, p. 65, 66. - (e) 28 H. 8, o. 15. 
 
 (c) 9 G. 4, u. 31, s. 8. (g) Id. ; 1 East, P. C. Set ; see R. v. Serva 
 
 (d) 3 & 4 W. 4, e. 53, a. 11 ; 8 & 9 Vict, et al, 2 Car. & K. 53. 
 
 [2] "-There has existed/' says Kent, " a very contested question, and of ancient stand- 
 ing,, touching the proper division or boundary line between the jurisdiction of the courts of 
 common law and the'courts of admiralty. The admiralty jurisdiction in England originally 
 extended to all crimes and offences committed upon the sea, and in all ports, rivers and 
 arms of the sea, as far as the tide ebbed and flowed. Lord Coke's doctrine was, that the 
 • sea did not include any navigable waters within the body of a county ; and Sir Matthew 
 Hale supposed, that prior to the statute of 35th Edw. III., the common law and the admi- 
 ralty exercised jurisdiction concurrently in the narrow seas, and in ports and havens within 
 the ebb and flow of the tide. Under the statutes of 13 B. II. c. 5, and 15 R. II. v. 3, ex- 
 cluding the admiralty jurisdiction in cases arising upon land or water within the body of a 
 county, except in cases of murder and mayhem, there have been long and vexatious conten- 
 tions between the admiralty and the common law courts. On the sea shore the common 
 law jurisdiction is bounded by low water mark where the main sea begins; and between 
 high and low water mark, where the sea ebbs and flows, the common law and the admi- 
 ralty have a divided or alternate jurisdiction. 
 
 " With respect to the admiralty jurisdiction over arms of the sea, and bays and navigable 
 rivers, where the tide ebbs and flows, there has been great difference of opinion, and great 
 litigation in the progress of the English jurisprudence. On the part of the admiralty it has 
 been insisted, that the admiralty continued to possess jurisdiction in all ports, havens and 
 navigable rivers, where the sea ebbs and flows below the first bridges. This seemed also to 
 be the opinion often of the judges of Westminster, on a reference to them in 1113. On the 
 part of the common law courts it has been contended, that the bodies of counties compre- 
 hend all navigable rivers, creeks, ports, harbors and arms of the sea, which are so narrow as 
 to permit a person to discern and attest upon oath, anything done on the other shore, and 
 as to enable an inquisition of the facts to be taken. In the case of Bruce, in 1812, all the 
 judges agreed, that the common law and the admiralty had a concurrent jurisdiction in 
 bays, havens, creeks, &c, where ships of war floated. The high seas mean the waters of 
 the ocean without the boundary of any county, and they are within the exclusive jurisdic- 
 tion of-the admiralty up to high water mark when the tide is full. The open ocean which 
 washes the sea-coast is used in contradistinction to arms of the sea enclosed within the 
 fauces terrce, or narrow headlands and promontories ; and under this head is included rivers, 
 harbors, creeks, basins, bays, Sec, where the tide ebbs and flows. They are within the ad- 
 miralty and maritime jurisdiction of the United States ; but if they are within the body of 
 a county of any particular state, the state jurisdiction attaches." Com. pp. 365, 366. 
 
 23 
 
67 — 2 INDICTMENT." 
 
 grievous bodily harm, -within stat. 1 Vict. o. 85, by sect. 10 ; all other 
 offences against the person, within stat. 9 G. 4, c. 31, by sect. 32 ; doing 
 injury by explosive substances, within stat. 8 & 9 Vict. c. 25, by sect. 
 17 : offences punishable by the statute against forgery,(a) all offences 
 relating to the coin within stat. 2 W. 4, c. 34, by sect. 20 ; and gen- 
 erally, all other offences committed on the high seas, out of the 
 body of any county. (b) And all offences committed at sea 
 [*68] *are now punishable in the same manner as if committed on 
 land.(c)[l] 
 By stat. 28 H. 8, c. 15, all treasons, felonies, robberies, murders, and 
 conspiracies committed on the seas, or in any haven where the admiral 
 has jurisdiction, were triable, according to the course of the common 
 law, in such places as were appointed by commission. But that mode 
 of proceeding being found productive of delay, jurisdiction was given 
 to the central criminal court of all offences " committed or alleged to 
 have been committed on the high seas, and other places within the ju- 
 risdiction of the Admiralty of England."(c?) And now, by Stat. 7 & 8 
 Vict. c. 2, s. 1, authority is given to Her Majesty's judges of assize and 
 commissioners of oyer and terminer, to inquire of, hear, and determine 
 all offences alleged to have been committed on the high seas and other 
 places within the jurisdiction of the Admiralty of England ; and, by 
 sect. 2, in all indictments preferred before them, the venue laid in the 
 margin shall be the same as if the offence were committed in the coun- 
 ty where the trial is to be had, but the material facts shall be averred 
 to have taken place " on the high seas." It is not necessary to allege 
 that it was committed within the jurisdiction of the Admiralty.(e) And 
 the accessory before or after the fact, may be tried by the same court 
 which has jurisdiction to try the principal felon.(^)[2] 
 
 (a) 1 W. 4, u. 66, by s. 27. WdUace, 1 Car. & M. 200. 
 
 (6) 39 G 3. o. 37. (e) R. v. Jones. et at, 2 Car. & K. 165; 1 
 
 (c) 7 & 8 G. 4, c. 28, a. 12. Den. C. C. 101. 
 
 (d) 4 & 5 W. 4, o. 36, s. 22 ; and see B. v.. (g) Ante, pp. 15, 18. 
 
 [1] Se'e Kev. Stat, of Mass. oh. 133, § 9 ; Rev. Stat, of Maine, ch. 166, § 6. 
 
 [2] The Constitution of the United States, Art. III. Sec. 2, provides, that the judicial 
 power of the United States shall extend to all cases of admiralty and maritime jurisdiction. 
 
 The Judiciary Act of Sept. 24, 1789, provides : 
 
 Sec. 9. The District Courts shall have, exclusively of the courts of the several states, cog- 
 nizance of all crimes and offences that shall be cognizable under the authority of the United 
 States, committed within their respective districts, or upon the high seas ; where no other 
 punishment than whipping, not exceeding thirty stripes, a fine not exceeding one hundred 
 dollars, or a term of imprisonment not exceeding six months, is to be inflicted. 
 
 Sec. 11. The Circuit Courts shall have exclusive cognizance of all crimes and offences 
 cognizable under the authority of the United States, except where this act otherwise pro- 
 vides, or the laws of the United States shall otherwise direct ; and concurrent jurisdiction 
 with the District Courts of the crimes and offences cognizable therein. 
 
MUEDER AND MANSLAUGHTER, &c. 68 
 
 (J) Murder and manslaughter. 
 
 Where the death, and cause of death both happen in the same coun- 
 ty, &c, the venue of course must be laid there. "Where the cause of 
 death happens in one county and the death in another, the venue may 
 be laid in either.(a) And where, the cause of death happens in Eng- 
 land, and the death on the high seas or at any place out of England, 
 — or if the cause of death happen on the high seas or at any place out 
 of England, and the death in England, — the party, whether charged 
 with murder or manslaughter, or as accessory before the fact to mur- 
 der, or after the fact to murder or manslaughter, may be tried in the 
 county or place in England where the cause of death or death happened, 
 in the same manner as if the offence had been wholly committed in that 
 county or place.(&)[3] 
 
 (k) I/ibel 
 
 In an indictment for publishing a libel, the venue must be laid in 
 the county, &c, where it was published. But if the publication were 
 by sending it from the defendant to the prosecutor, unsealed, &c, the 
 venue may be laid either in the county from which it was sent, 
 or in that in which it *was received. And the same, if it were [*69] 
 sent sealed, and the indictment was for writing or printing and 
 publishing it. (c) [1 ] 
 
 (a) See stat. 7 G. 4, c. 64, 8. 12 ; ante, p. (6) 9 G. 4, c. 31, a. 8 ; ante, .pp. 65, 6'6. 
 
 65. (c) See B. v. Burd-ett, 4 B. & Aid. 95. 
 
 [3] In the state of New York, where the mortal w/)und is given in one county, and the 
 death happens in another, the indictment may "be found in the latter county ; and the same 
 proceedings are to be had therein, in all respects, as if the wound was given in the county 
 where the death took place. 2 N. Y. Rev. Stat. 127, see. 47 ; see Rev. Stat, of Ohio, .eh. 
 35, see. 37 ; Rev. Stat, of Wis. ch. 141, -sees. 8 and 9-; Rev. Stat, of Mass. ch. 133, sec. 8 ; 
 Rev. Stat, of Maine, ch. 166, sees. 7 and 8. 
 
 If a person be stabbed in Virginia, and die of his wounds in another state, he cannot be 
 tried for the murder in any county in Virginia ; but he may be tried for the stabbing in the 
 county where the Mow was inflicted. Com. v. Linton, 2 Va. Cas. 205. 
 
 [1] In an indictment for a libel, if the defendant has once authorized the, publication, he is 
 guilty of a publication in whatever county the libel is afterwards in consequence published, 
 and he" may be indicted accordingly. Bull. N. P. 6 ; 7 East, 65. And if a party writes and 
 composes a libel in one county, with an intent to publish, and afterwards publishes it in 
 another, he may be indicted in either. 4 B. & A. 95 ; and see 3 B. & A. 717. A mere 
 acknowledgment by the defendant in the county in which the venue is laid, of the fact of 
 publication, which, in truth, was in another county, is not sufficient to warrant ihe trial in 
 the first county. 7 East, 68. Nor is the post mark on a libellous letter, of a particular place 
 within the county where the venue is laid, sufficient evidence of the publication there by the 
 defendant ; but if it be sent to the prosecutor at a place without the county and yet actually 
 received 'by him within it, that will be sufficient to support the indictment. 1 Campb, 
 215, 216. 
 
69 INDICTMENT. 
 
 (Z) Larceny. 
 
 The venue in larceny, as in other cases, may be laid in the ccranty 
 in which the goods were stolen. [2] But at common law, if a man steal 
 goods in one county, and carry them into another, he may be indicted 
 and tried in either ;(a) for he is deemed guilty, as well of a taking as 
 of a carrying away, in both. The larceny, however, must be one at 
 common law, and not a larceny created by statute.(6) 
 
 And now, by stat. 7 & 8 G. 4, c. 29, s. 76, if any person, having sto- 
 len or otherwise feloniously taken any chattel, money, or valuable se- 
 curity, or other property whatsoever, in any one part of the United 
 Kingdom, shall afterwards have the same property in his possession in 
 any other part of the United Kingdom, he may be dealt with, tried, 
 and punished for larceny or theft in that part of the United Kingdom 
 where he shall have such property, in the same manner as if he had 
 actually stolen or taken it in that part. 
 
 Jersey, however, is not a part of the United Kingdom, for this pur- 
 pose ; and therefore where it appeared that the prisoner stole the'goods 
 in Jersey, and they were found in his possession at Weymouth in Dor- 
 setshire, the judges held that he could not be indicted for it in Dorset- 
 shire, within the meaning of this act.(c) So, where a man stole a brass 
 furnace in Radnorshire, broke it to pieces there, and then brought the 
 pieces of brass into the county of Hereford : Hullock, B., held that he 
 
 (a) 2 Hawk. c. 25, s. 38. (c) JR. v. Prowes, Ry. & M. 349 ; and see if. 
 
 (b) R v. Millar, 7 Car. & P. 665. v. Madge, 9 Car. & P. 29. 
 
 [2] It is a general rule that larceny must be tried in the same county or jurisdiction in 
 ■which it was committed. 2 Russ. on Cr. 173. Where an indictment for larceny alleged 
 the offence to have been committed in a yessel in the first ward of the city of New York, 
 and it appeared on the trial that it was lying in the river, at a wharf of the third ward, it 
 was held this was not a material variance The People v. Honeyman, 3 Denio, 121. As the 
 property in the goods stolen always remains in the true owner, unaltered by the wrongful 
 taking, every carrying away is a new trespass. Hence, it follows that the venue may be 
 laid in any county into which they are conveyed, (3 Chit. Cr. L. 943, note (a); 2 Russ. on 
 Cr. 173, 175 ; Roscoe's Cr. Ev. 521, 523 ;) as the offence of taking and converting is there 
 in itself complete, (1 Hale, 547 ; 1 Hawk. ch. 33, sec. 52 ;) and this, though the goods were 
 not carried into the county in which the vonue is laid, until long after the original taking. 
 Ry. & Moo. C. C. 45. But this, it is said, will not be the case when it is such a taking of 
 which the common law will not take cognizance ; as if goods are taken on the high seas, 
 until the offence is made indictable here by some particular statute. 1 Hawk. ch. 33 ; but 
 see 2 Rogers' Rec. 45, contra. A foreigner committing larceny abroad, coming into this 
 slate and bringing the stolen property with him, may be indicted and punished in the Fame 
 manner as if such larceny had been committed in this state. And the indictment may 
 charge such larceny to have been committed in any town or city into or through which the 
 stolen property was brought. 2 R. 8. 698, sec. 4; 11 Wend. 129; 3 Chit. Cr. L. 944, 
 note (c.) 
 
EMBEZZLEMENT. 69 — 1 
 
 could not be indicted in Hereford for stealing the furnace there, it never 
 having in fact been in Hereford.(a) 
 
 But no distance of time, between the stealing in one county and hav- 
 ing the property in another, will prevent the party from being indicted 
 in the latter county ; and therefore where the property was stolen by 
 the prisoner in Yorkshire in November, 1823, and brought by him into 
 Durham in March, 1824, the judges held that he might be indicted for 
 the larceny in Durham.(6) But where the prisoners stole two horses 
 at different times and at different places in Somersetshire, and brought 
 both at the same time into Wilts, and had them there in their posses- 
 sion : Littledale, J., held that this did not warrant the including both 
 larcenies in one indictment ; and he therefore put the prosecutor to his 
 election as to which offence he would prosecute.(c) 
 
 (m) Embezzlement: 
 
 The venue must be laid in the county, &c, in which the embezzle- 
 ment took place, if that be known. 
 
 *But in the absence of express evidence upon that subject, [*70] 
 the venue may be laid, either in the county where the defendant 
 received the money, &c, or and perhaps more properly in the county in 
 which he ought to have accounted for it to his master, and did not. 
 
 Where the master resided in Staffordshire, and the prisoner by his 
 orders received. money for him in the county of Salop, and being after- 
 wards asked by his master in Staffordshire whether he had received it 
 said he had not ; and there was no evidence in which of the two coun- 
 ties the embezzlement actually took place : being indicted for this of- 
 fence in the county of Salop, ten of the judges held it to be cor- 
 rect.^) 
 
 On the other hand, where a master, residing in Middlesex, sent his 
 servant to a customer in Surrey with goods, for which he was to be 
 paid, and he received payment from the customer accordingly ; and 
 being asked by his master, on his return, if he had received payment, 
 answered that he had not : being indicted for the offence in Middlesex 
 and it being objected that he should have been indicted in Surrey where 
 he received the money, the judges held that he was properly indicted 
 in Middlesex ; that the denial of the receipt of the money, when the 
 prisoner was called upon by his master to account for it, was the first 
 act from which the jury could with certainty say that the prisoner in- 
 tended to embezzle it ; and that even if it were proved that he had 
 
 (a) R. v. Ealbway, 1 Car. & P. 127. P. C. 295. 
 
 (6) R. v. Parkin, Ey. & M. 45. (d) R. v. Bdbson, 1 East, P. 0. xxiv., B, & 
 
 (c) R. v. Smith and Jefferies, Ey. & Mo. N. Ey. 56. 
 
70 INDICTMENT. 
 
 spent the money in Surrey, that would not necessarily have confined 
 the trial of the offence to that county.(a)[l] 
 
 (a) R. v. Taylor, It. & By. 63. 
 
 [1] Two oases occurred upon the repealed statute, 39 Geo. 3, in which questions were 
 raised as to the county in which the offence within that statute might be considered as hav- 
 ing been so completed as to authorize a trial in such county. 
 
 In the first of these cases, the prisoner was indicted in the county of Salop. The residence 
 of the master was at Litchfield, in Staffordshire, where the prisoner served him in his trade. 
 On a Saturday morning, both of them were at Shrewsbury ; and the master having autho- 
 rized a person named Beaumont, to collect some debts for him at that place, returned home 
 the same morning, leaviDg the prisoner at Shrewsbury to receive the money from Beaumont, 
 and bring it to him at Litchfield the same night. The prisoner received the money from 
 Beaumont about noon, and also a letter for his master, which had been left at Beaumont's, 
 but which did not relate to the money transaction. He left Shrewsbury soon after, but did 
 not go to his master at Litchfield till the following evening. He then delivered the letter ; 
 and being asked about the money, he said he had not received any. A few days after, the 
 master, in consequence of information he had received by letter, charged the prisoner with 
 having received the money, and another servant who had been at Shewsbury on Saturday, 
 being present, told the prisoner that he had seen him receive money, but the prisoner per- 
 sisted in denying that he had received any. Some time afterwards, the master, having re- 
 ceived further intelligence, bid the prisoner go to Shrewsbury to clear himself. Oh the Sat- 
 urday following, the prisoner went to Beaumont, at his house in Shrewsbury, and desired 
 him to make a search on the left hand side of the room in which they had been ; but no 
 search was made, Beaumont telling him it was of no use to search, as he had received the 
 money from him. The jury having found the prisoner guilty, the case was submitted to the 
 consideration of the twelve judges, upon two questions; first, whether, under this statute, an 
 indictment might not be found and tried in the county where the money or goods were received, 
 although there were no evidence of any other fact locally arising within the same county ? and, 
 secondly, whether, if further local proof were necessary, the subsequent conduct of the pris- 
 oner at Shrewsbury were not-sufficient to obviate the objection, as being an act in further- 
 ance of the purpose of secreting or embezzling? A majority of the judges were of opinion, 
 that the conviction was right. Lawrence, X, thought that embezzling being the offence, 
 there was no evidence of any offence in Shropshire, and that the prisoner was improperly 
 indicted in that county. But the other judges were of opinion that the indictment might be 
 in Shropshire where the prisoner received the money, as well as in Staffordshire where he 
 embezzled it by not accounting for it to his master ; that the statute having made the receiv- 
 ing property and embezzling it amount to a larceny, made the offence a felony where the 
 property was first taken, and that the offender might therefore be indicted in that or in any 
 other county into which he carried the property. 
 
 In the other case, which occurred shortly afterwards, the indictment charged the prisoner 
 •with embezzling the sum of ten shillings, the property of his master, James Barker. The 
 evidence was, that the prosecutor, Barker, who was a fish-monger in Drury-lane, in the county 
 of Middlesex, sent his servant, the prisoner, with some herrings to a street in Blackfriars- 
 road, in the county of Surrey, to a Mrs. Stevens; telling him that he was to receive the sum 
 often shillings for them. He went with the herrings about six o'clock in the evening, and 
 delivered them to Mrs. Stevens, who paid him the ten shillings ; after which he returned to 
 his master, who asked him if he had brought thn money, to which he replied that he had 
 not, for that Mrs. Stevens had not paid him. His master then paid him his weekly wages 
 (it being on a Saturday,) and he went away, bbing to return on Monday morning, as usual: 
 but did not return, nor did he ever account for the money. Upon this evidence, it was con- 
 tended, on tho part of the prisoner, that ho was only liable be indicted in the county of Sur- 
 
FALSE PRETENCES. 70—1 
 
 (n) Falss pretencss. 
 
 The obtaining of the money by the false pretence, is in this case the 
 offence, and the venue must therefore be laid in the county, &c. where 
 the money was obtained. A difficulty sometimes arises in this respect, 
 where the false pretence is made by letter. "Where the prisoner gave 
 the letter containing the false pretence, to an accomplice in Middlesex, 
 desiring him to put it into the post-office at Gravesend ; it was dated 
 as from Gravesend, and directed to the prosecutor at Bath, requesting 
 him to send him a post-office order by post, directed to James Power, 
 Gravesend ;' the letter arrived at Bath, but the prosecutor being then in 
 Middlesex, it was forwarded to him there, and he accordingly sent the 
 post-office order from Middlesex to Gravesend : the prisoner being in- 
 dicted in Middlesex, for obtaining this post-office order by false pretences, 
 it was objected that the offence ought to be tried in Kent, where the or- 
 der and the money for it was received ; but the judges held that by 
 desiring the order to be sent by post, the prisoner constituted the post- 
 master his agent for receiving it, and the postmaster having received 
 it in Middlesex, the prisoner was properly indicted there. (a)[2] 
 
 (b) R. Y.Jones, 19 Law J. 162 m. 
 
 rey, where the money was received: and the jury have found him guilty, this point was re- 
 served for the consideration of the judges. The opinion of the judges, was afterwards de- 
 livered by Lord Alvanley, C. J., who first referred to the foregoing case of Sobson, and then 
 proceeded: "In the present case, no doubt can be entertained. The prisoner, being sent 
 over Blackfriars-bridge into the county of Surrey, there received ten shillings for his master. 
 The receipt of that money was perfectly legal, and there was no evidence that he ever came 
 to the determination of appropriating the money to his own use until after he had returned 
 into the county of Middlesex. It was not proved that the money ever was embezzled until 
 the prisoner was in the county of Middlesex. In cases of this sort, the nature of the thing 
 embezzled ought not to be laid out of the question. The receipt of money is not like the re- 
 ceipt of an individual thing, where the receipt may be attended with circumstances which 
 plainly indicate an intention to steal, by showing an intention in the receiver, to appropriate 
 the thing to his own use. Thus, if a servant receive a horse for his master, and sell it before 
 he gets out of the county where he first received it, it might be said that he is guilty of the 
 whole offence in that county. But with respect to money, it is not necessary that the ser- 
 vant should deliver over to his master the identical pieces of money which he receives, if he 
 should have lawful occasion to pay them away. In such a case as this, therefore, even if 
 there had been evidence of the prisoner having spent the money on the other side of Black- 
 friar's-bridge, it would not necessarily confine the trial of the offence to the county of Sur- 
 rey. But here there is no evidence of any act to bring the prisoner within the statute until 
 he is called upon by his master to account. When called upon by his master, to account 
 for the money, the prisoner denied that he had ever received it. This was the first act from 
 which the jury could with certainty say that the prisoner intended to embezzle the money. 
 In this case, there was no evidence of the prisoner having done any act to embezzle in the 
 county of Surrey, nor could the offence be complete, nor the prisoner be guilty within the 
 statute until he refused to account to his master. We are, therefore, of opinion that the 
 prisoner was properly indicted in the county of Middlesex." 
 
 [2] Where a party residing in Ohio, and who had never been in the state of New York, 
 fraudulently made receipts acknowledging the delivery to him, as a forwarder, of a quantity 
 
71 INDICTMENT. 
 
 [*71] *(o) Stealing from wreck, &c. 
 
 For stealing from a ship in distress, wrecked, stranded, or cast 
 on shore, the offender may be indicted and tried, either in the coun- 
 ty, &c, in which the offence was committed, or in any county next 
 adjoining, (a) 
 
 So, any person committing an offence against stat. 9 & 10 Vict. c. 
 99, intituled " An Act for consolidating and amending the laws relat- 
 ing to wreck and salvage," by which persons cutting away or defacing 
 buoys or buoy ropes— or purchasing anchors, cables, or goods weighed 
 up, swept for, &c.,— arc punishable,— may be laid to be committed and 
 may be tried in any city, county, or place where any such article, mat- 
 ter, or thing in relation to which such offence shall be committed, shall 
 have been found in the possession of the person committing the offence 
 or where the offender may at any time happen to be.(&) 
 
 {p) Receivers. 
 
 A person charged with receiving goods feloniously stolen, or ob- 
 tiained by false pretences, knowing the same to have been so stolen or 
 obtained, may be indicted and tried, either in any county or place 
 where he shall have or shall have had the property in his posession, or 
 in any county or place where the principal offender may be tried,' in 
 the same manner as he may be indicted and tried in the county or place 
 where he received the property.(c) 
 
 (q) Forgery. 
 
 By stat. 11 Gr. 4 & 1 W. 4, c. 66 (the Forgery Act,) s. 24, if any per- 
 son shall commit any offence against that Act, or shall commit any of- 
 fence of forging or altering any matter whatsoever, or of offering, ut- 
 tering, disposing of, or putting off any matter whatsoever, knowing 
 the same to be forged or altered, whether the same shall be indicta- 
 ble at common law or by virtue of any statute made or to be made : 
 the offence of every such offender may be dealt with, tried, and pun- 
 ished, and laid and charged to have been committed, in any county or 
 place in which he shall be apprehended or be in custody, as if his of- 
 fence had been actually committed in that county or place ; and every 
 
 (a) T & 8 G. 4, o. 29, a. 18. (c) 1 & 8 Vict. c. 29, s. 56. 
 
 (6) 9 & 10 Vict. c. 99, s. 38. 
 
 of produce, for the use of a firm in New York, and subject to their order, when, in fact, he 
 had not received such produce, and he employed innocent agents to present such receipts 
 to the firm in New York, and obtain money thereon, which they did; it was held that the 
 offence must be considered as committed in New York, where the money was obtained ; 
 that the employer was guilty as a principal, and that he was liable to be indicted and tried 
 in Now York, for the offence. People v. Adams, 3 Denio, 190. 
 
TREASON OR CONSPIRACY. 71—1 
 
 accessory before or after the fact, if the same be a felony, and every 
 person aiding, abetting, or counselling the commission of such offence, 
 if the same be a misdemeanor, may be dealt with, indicted, tried, and 
 punished, and his offence laid and charged to have been committed in 
 any county or place in -which the principal may be tried. 
 
 Where the jury found that the prisoner was guilty of the forgery 
 with which he was charged, but that there was no evidence of his hav- 
 ing committed it within the j urisdiction of the court: the judge held 
 that the defendant being before the court at his trial, was there " in 
 custody" within the meaning of the above section, and that it 
 was therefore unnecessary to allege or *prove when or where he [*72] 
 was taken into custody.(e)[l] 
 
 (r) Treason or conspiracy. 
 
 The venue in treason committed in England, may be laid in any 
 county in which a good overt act can be proved. Treason out of the 
 realm, may be tried either before the court of Queen's Bench, by a jury 
 of the county where the court sits, — or by commission, in any county 
 therein named, by a jury of such county.(J)[2] 
 
 So the venue in conspiracy may be laid in any county where a good 
 overt act can be proved.(c)[3] 
 
 (a) E. v. Smythies, 19 Law J. 31, m. ; and 53. 
 see R. v. Wldley, 1 Car. & K. 150. ( c ) b. v. Brisacmd Scott, 4 East, 171. 
 
 (jb) 35 H. 8, e. 2 ; see 2 Hawk, c. 25, ss. 48, 
 
 [1] The venue in indictments for forgery, must be laid in in the county where the offence 
 is committed; as the indictment can only be preferred and trial had in that county. Thus, 
 .where a note with forged indorsements is sent by the defendant per mail, from one county 
 to an individual in another county, for the purpose of obtaining credit upon it, the proper 
 place of trial is the county to which the note was sent; the offence not being consummated until 
 the note is received by the person to whom the note was transmitted. 21 Wend. 509. The 
 fact of forging a note within a particular county, cannot be inferred from its having been ut- - 
 tered there. 5 Pick. 2?9. 
 
 [2] A distinction has been taken, that where a levying war is laid as an overt act of com- 
 passing the king's death, though laid within the county, it may be proved elsewhere ; but 
 that where the levying war is laid as the substantive treason, it is local and must be laid in 
 the proper county: — for a levying war in Surrey may be good evidence of a compassing the 
 king's death in Middlesex, and so tend to establish the treason there ; but a levying war in 
 Surrey does not prove a levying war in Middlesex, though it may be adduced to show the 
 nature of the act laid as treason in the proper county. Kel. 14, 15. And after the proof of 
 one overt act of treason, by levying war in the propor county, proof of levying war in another 
 county is admissible. Kel. 14, 15 ; Fost. 9; 8 St. Tr. 218 ; See the observations in 1 East, 
 P. C. 126 ; Stark. 20, note p ; Elelynge, 15. So in the case of conspiracies, the venue may 
 be laid in the county where any overt act by any one of the conspirators can be proved, and 
 evidence may be there given of transactions in other counties. 4 East, 171 ; 6 East, 590. 
 ace. ; 1 Salic. 174, cont. 
 
 [3] In conspiracy the venue should be laid in the county where the conspiracy took place ; 
 or in the county where any one of the conspirators did an act to further their common object ; 
 
 24 
 
72 INDICTMENT. 
 
 (s) Unlawful oaths. 
 
 In an indictment for administering an, oath to commit treason or 
 murder, the venue may be laid, and the offender tried before a court 
 of oyer and terminer, in any county in England, as if the offence were 
 committed there.(a) 
 
 (t) Foreign service. 
 
 The offence of engaging in foreign military or naval service, without 
 licence from the crown, or going abroad for that purpose, or engaging 
 others in such service, — if committed in England, may be tried before 
 the court of Queen's Bench, and the venue laid at "Westminster ; or at 
 the assizes or sessions for the county where the offence was committed 
 and the venue laid there ;(b) or if committed out of the United King- 
 dom, the offender may be prosecuted in the court of Queen's Bench, 
 Westminster, and the venue laid at Westminster, in -the county of 
 Middlesex.(c)[4] 
 
 (a) 52 G. 3, c. 104, s. 8. (c) 59 G. 3, c. 69, s. 9. 
 
 (6) 59 G. 3, c. 69, a. 4. 
 
 and the trial must be in such county. People v. Mather, 4 Wend. Rep. 229 ; 6 Salk. 1T4. 
 The want of venue in an indictment for a conspiracy to the averment of the false pretences 
 is fatal. People v. Ward, 1 Johns. 66. If it does- not appear from the records that the venue 
 was proved, the judgment must be reversed. Yates v. Steele, 10 Verger, 549. 
 
 [4] "It is the doctrine of the English law," says Mr. Kent, (2 Com. p. 42, et seq,) "that 
 natural born subjects owe an allegiance, which is intrinsic and perpetual, and which cannot 
 be divested by any act of their own. In the case of Macdonald, who was tried for high 
 treason, in 1146, before Lord Ch. J. Lee, and who, though born in England, had been edu- 
 cated in France, and spent his riper years there ; his counsel spoke against the doctrine of 
 natural allegiance as slavish and repugnant to the principles of their revolution. The court, 
 however said, that it had never been doubted, that a subject born, taking a commission 
 from a foreign prince, and committing high treason, was liable to be punished as a subject 
 for that treason. They held, that it was not in the power of any private subject to shake 
 off his allegiance and transfer it to a foreign prince ; nor was it in the power of any foreign 
 prince, by naturalizing or employing »■ subject of Great Britain, to dissolve the bond of 
 allegiance between that subject and the crown. Entering into foreign service, without the 
 consent of the sovereign, or refusing to leave such service, when required by proclamation, 
 is held to be a misdemeanor at common law. 
 
 "It has been a question, frequently and gravely argued, both by theoretical writers, and 
 in forensic discussions, whether the English doctrine of perpetual allegiance applies in its full 
 extent to this country. The writers on public law have spoken rather loosely, but generally 
 in favor of the right of a subject to emigrate and abandon his native country, unless there be 
 some positive restraint by law, or ho is at the time in possession of a public trust, or unless 
 his country be in distress, or in war, and stands in need of his assistance. Cicero regarded 
 it as one of the firmest foundations of Roman liberty, that the Roman citizen had the privi- 
 lege to stay or renounce his residence in the state at pleasure. The principle which has been 
 declared in some of our state constitutions, that the citizens have a natural and inherent 
 right to emigrate, goes far towards a renunciation of the doctrine of the English common law, 
 as being repugnant to the natutal liberty of mankind, provided we are to consider emigration 
 
INCITING TO MUTINY. 72—1 
 
 («) Inciting to mutiny. 
 
 The offence of endeavoring to seduce any person serving in Her Ma- 
 jesty's forces by sea or land, from their duty and allegiance, or inciting 
 them to mutiny, which is made felony by stat. 37 G. 3, c. 70, s. 1, may, 
 whether committed on the high seas or in England, be prosecuted and 
 tried before- any court of oyer and terminer or jail delivery for any 
 county in England, as if the offence had been committed there.(a) 
 
 (w) Smuggling. 
 
 In an indictment for smuggling, or for any offence against stat. 8 & 
 9 Vict. c. 87, or any other Act relating to the customs, if the offence 
 have been committed in England, the venue may be laid and the of- 
 fender tried in any county, in such manner and form as if the offence 
 was committed in that county. (h) And where, any offence shall be 
 committed on the high seas against that Act or any other Act 
 *relating to the customs, such offence shall, for the purpose of [*73] 
 prosecution, be deemed and taken to have been committed at' 
 the place on land in the United Kingdom, into which the offender 
 shall be taken, brought or carried, or in which such person shall be 
 found, (c) 
 
 (w) Post office. 
 
 The offence of every offender against the post-office Acts, may be 
 dealt with, indicted, tried, and punished, and laid and charged to have 
 been committed, either in the county or place where the offence shall 
 be committed, or in any county or place in which the offender shall 
 be apprehended or be in custody ; and where an offence shall be com- 
 
 (a) 3"? G. 3, c. 10, a. 2. (c) 8 & 9 Vict. u. 81, s. 95. 
 
 (5) 8 & 9 Vict. c. 81, a. 136. 
 
 and expatriation, as words, intended in those cases, to be of synonymous import. But the 
 allegiance of our citizens is due, not only to the local government under which they reside, 
 but primarily to the government of the United States ; and the doctrine of final and absolute 
 expatriation requires to be defined with precision, and to be subjected to certain established 
 limitations, before it can be admitted into our jurisprudence, as a safe and practicable princi- 
 ple, or laid down broadly as a wise and salutary rule of national policy. The question has 
 been frequently discussed in the courts of the United States, but it remains to be definitely 
 settled by judicial decisions." 
 
 Mr. Kent, after a historical review of the principal discussions in the United States courts 
 on this subject, concludes that a citizen cannot renounce his allegiance to the United States 
 without the permission of government, to be declared by law ; and that as there is no exist- 
 ing legislative regulation on the case, the rule of the English common law remains unaltered. 
 See 2 Kent. Com. page 49. 
 
73 INDICTMENT. 
 
 mitted in or upon or in respect of a mail, or upon a person engaged in 
 the conveyance or delivery of a post letter bag, or post letter, or in re- 
 spect of a post letter bag or post letter, or a chattel or money or valua. 
 ble security sent by the post, such' offence may be dealt with and in- 
 quired of, and tried and punished, and laid and charged to have been 
 committed as well in any county or place in which the offender shall be 
 apprehended or be in custody, as also in any county or place through 
 any part whereof the mail or the person, or the post letter bag or post 
 letter, or the chattel, money or valuable security sent by post, in re- 
 spect of which the offence shall be committed, shall have been passed 
 in due course of conveyance or delivery by the post, in the same man- 
 ner as if it had been actually committed in such county or place.(a)[l] 
 
 (a) Counterfeit coin. 
 
 In all offences against stat. 2 "W. 4, c. 34, relating ' to the coin, the 
 venue in ordinary cases is laid in the county, &c, in which the offence 
 was committed. But where two or more persons, acting in concert in 
 different counties or jurisdictions, shall commit any offence against that 
 Act, all or any of the said offenders may be dealt with, indicted, tried 
 and punished, and their offence laid and charged to have been com- 
 mitted, in any one of the said counties or jurisdictions, as if the offence 
 had been actually and wholly committed within such one county or ju- 
 risdiction : provided that crimes and offences against that Act, commit- 
 ted in Scotland, shall be tried in Scotland as hitherto.(c)[2] 
 
 (y) Escape and rescue from prison. 
 
 Any person escaping from a jail or house of correction, or breaking 
 prison or being rescued therefrom, may be tried either in the jurisdic- 
 tion where the offence was committed, or in that where he shall be ap- 
 prehended and retaken.(c) 
 
 (a) 1 Yict. u. 36, s. 31. (c) 9 G. 4, o. 64, s. 44 
 
 (6) 2 "W. 4, c. 34, s. 15. 
 
 [1] By act of congress, establishing the post-office department, authority is given, to the 
 federal officers to prosecute in the state courts for offences against the department. Acts 
 have also been passed by congress giving jurisdiction to the courts of certain states over 
 offences against the revenue, and vesting authority in the collectors to sue for certain offences 
 in the state courts generally. 
 
 [2] Forging or altering the coin of the United States is punished by acts of congress, and 
 properly subject to the jurisdiction of the federal courts. The legislatures of the several 
 states, in some instances, have passed laws punishing the offence, and the state courts, as 
 authorized by act of congress, have jurisdiction thereof under the laws of the particular 
 state. 
 
RETURNING FROM TRANSPORTATION, &o. 73 — 1 
 
 (z) Returning from transportation. 
 
 In prosecutions for returning from transportation before the expira- 
 tion of the sentence, the offender may be tried either in the 
 county or place * where he shall be apprehended, or in that [*74] 
 from whence he was ordered to be transported.(a) 
 
 (aa) Sending a challenge to fight. 
 
 "Where a challenge to fight is sent by letter in one county, and re- 
 ceived in another, even if sent by. post, the venue in an indictment for 
 the offence, may be laid in the county from which the letter was sent, (J) 
 or in the county in which it was received. 
 
 (bb) Threatening letter. 
 
 In an indictment for sending a threatening letter, the venue may be 
 laid in the county where the letter was received, (c) or in the county 
 from which it was sent. 
 
 (cc) Bigamy. 
 
 In prosecutions for bigamy, the venue may be laid, and the offence 
 may be dealt with, inquired of, tried, determined and punished, in the 
 county where the offender shall be apprehended or be in custody, as if 
 the offence had been actually committed in that county \{d) or it may 
 be laid in the county where the second marriage took place.(e)[l] 
 
 (dd) For an offence of omission. 
 
 "Where the offence consists of omitting to do an act which the law 
 enjoins or commands to be done, the venue should be laid in that coun- 
 ty in which the act ought to have been done. And therefore in an in- 
 dictment against a bankrupt for not surrendering, the venue must be 
 laid in the county in which the Bankruptcy Court is situate, at which 
 he ought to have surrendered.^) 
 
 In an indictment for not repairing a highway or bridge, the venue 
 
 (a) 5 tt 4, o. 84, s. 22. (d) 9 G. 4, o. 31, s. 22 ; see R. v. Whiley, 1 
 
 (6) R. v. WiUicms, 2 Camp. 506. Car. & K. 160 ; and see R. v. Bmythies, 19 
 
 (c) Girdwoodls case, 1 Leach, 142, 2 East, Law J. 31m. ; ante, pp. 11, 72. 
 
 P. C. 1120 ; Esser's case, 2 East, P. C. 1125 ; (e) 2 Hawk. o. 25, s. 39. 
 
 2 Russ. 723. (g) R. v. Miner, 2 Car. & K. 310. 
 
 [1] In New York and Virginia, the venue in bigamy may be laid either in the county 
 where the offence was committed or in the county where the defendant is apprehended. 
 2 N. V. Rev. Stat. 687, sec. 8; Rev. Code of Virginia, ch. 106, sec. 19. 
 
74 INDICTMENT. 
 
 must be laid in the county, &c, in which the part of the highway or 
 bridge which is out of repair is situate. 
 
 (ee) Accessories before the fact. 
 
 By stat. 7 G. 4, c. 64, s. 9, the offence of accessory before the fact 
 howsoever indicted may be inquired of, tried, determined, and punish- 
 ed, by any court which shall have jurisdiction to try the principal felon 
 in the same manner as if such offence had been committed at the same 
 place as the principal felony, although such offence may have been 
 committed on the high seas or at any place on land ; whether within 
 His Majesty's dominions, or without; and in case the principal felony 
 shall have been committed within the body of any county, and the of- 
 fence of accessory within the body of any other county, the accessory 
 may be tried and punished in either county.(a)[2] 
 
 [*75] *(JT) Accessories after the fact. 
 
 By stat. 11 & 12 Vict. c. 46, s. 2, the offence of accessory after 
 the fact, howsoever indicted, may be inquired of, tried, determined, 
 and punished, by any court which- shall have jurisdiction to try the 
 principal felon, in the same manner as if the act by reason of which 
 such person shall have become an accessory, had been committed at 
 the same place as the principal felony.(5) 
 
 (ffg) Central criminal court. , 
 
 The central criminal court has jurisdiction of all indictable offences 
 committed within the city of London, the county of Middlesex, and 
 within certain limits in the counties of Essex, Kent, and Surrey.(c) 
 
 la) See ante p. 15. of St. Paul Deptford which is in the county 
 (I) See ante,' p. 18. of Kent, the liberty of Kidbrook, and the 
 (c) 4 & 5 W. 4. c. 36, s. 2. These limits are hamlet of Mottingham. 
 thus described by sec. 2. : In the county of Surrey :— the borough of 
 City of LondoD. Southwark, the parishes of Battersea, Ber- 
 County of Middlesex. mondsey, Chamberwell, Christchurch, Chap- 
 In the county of Essex:— the parishes of ham, Lambeth, St. Mary Newington, Bother- 
 Barking, East Ham, West Ham, Little Ilford, bitbe, Streatham, Barnes, Putney, that part 
 Low Layton, Walthamstow, Wanstead, St. of St. Paul Deptford which is within the 
 Mary, Woodford, and Chingford. county of Surrey, Tooting, Graveney. Wands- 
 In the county of Kent:— Charlton, Lee, worth, Merton, Mortlake, Kew, Richmond, 
 Lewisham, Greenwich, Woolwich, Eltham, Wimbledon, the Clink liberty, and the dis- 
 Plumstead, St. Nicholas Deptford, that part trict of Lambeth Palace. 
 
 ["21 The New York revised statutes provide that an indictment against an accessory to 
 any felony, may be found in the county where the offence of such accessory shall have been 
 committed, notwithstanding the principal offence was committed in another county; and 
 that the like proceedings shall be had thereon, in all respects, as if the principal offence had 
 been committed in the same county. 2 N. Y. Rev. Stat. 727, sec. 48. 
 
DEFECTIVE VENUE CURED. 75 
 
 The court has jurisdiction to try all offences committed or alleged to 
 be committed on the high seas, and other places within the jurisdiction 
 of the Admiralty of England.(a) 
 
 The venue in the margin of the indictments in this court, is in 
 all cases " Central Criminal Court, to wit;" and the facts in the body 
 of the indictment are stated to have taken place " within the jurisdic- 
 tion of the said court. "(b) 
 
 (hh) Defective venue cured. 
 
 By stat. 7 G. 4, c. 64, s. 20, it was enacted that judgment, whether 
 after verdict, outlawry, confession, default, or otherwise, should not be 
 stayed or reversed, for want of a proper or perfect venue, where the 
 court shall appear by the indictment or information to have had juris- 
 diction over the offence. But now, by stat. 14 & 15 Yict. c. 100, s. 24, 
 no indictment for any offence shall be holden insufficient, "for want of 
 a proper or perfect venue." Still, however, if it appear in evidence 
 that the prisoner is on his trial in a wrong jurisdiction, and that the 
 court has not cognizance of the offence, he must be acquitted. (c)[l] 
 
 (a) 4 & 5 W. 4, c. 36, s. 22. o. 24. 
 
 (6) Id. s. 3 ; see also, stat. 9 & 10 Vict. (c) See 2 Hawk. o. 25, s. 35. 
 
 [1] It seems proper here to remark, that the venue may be changed,- on motion of the 
 public prosecutor, if it appears that a fair and impartial trial cannot be had in the county 
 where the indictment was found. And this, although there has been no actual experiment 
 made, by way of trying the cause, or even empannelling a jury in the county where the 
 venue is laid. The People v. Webb, 1 Hill, 119. There is no fixed rule defining what shall 
 not be- received as proof of the fact that a fair and impartial trial cannot be had. lb. ; see 
 The People v. Bodine, 7 Hill, 147. 
 
 In Illinois, a prisoner is entitled to a change of venue whenever, by petition verified by 
 affidavit, he brings himself within the requisitions of the statute ; and -it is not within the 
 discretion of the court to allow it or not. Clark v. The People, 1 Scam. Rep. 117 ; see also, 
 McGoon v. Little, 2 Gilman, 42. A change of venue may bo awarded, in a criminal case, by 
 consent, without requiring a petition or affidavit to he filed for that purpose. People v. Scates, 
 3 Scam. 351 ; see Davidson v. Wheeler, 1 Morris, 238. Where an indictment was found, 
 in one county of Illinois, against several jointly, and the venue was changed to another 
 county, on motion of one of the accused, without consent of the others, when he was tried, 
 and afterwards the indictment was returned to the county where it was found, and the 
 others held to answer, it was held that the proceedings were regular. Hunter v. The People, 
 1 Scam. 453. 
 
 In Indiana, a refusal to change the venne in a criminal case, cannot be assigned for error. 
 Findley v. The State, 5 Blackf. 576; S. P. Spence v. The State, 8 Blackf. 201. An order of 
 court changing the venue of an indictment, is conclusive of its own regularity, unless the 
 contrary appear of record. McCauley v. United States, 1 Morris, 486. 
 
 The necessity of changing the venue, in any case, in order to secure an impartial trial, is 
 not to depend upon the suggestion, or even the belief, of the defendant, but upon facts shown 
 to the court, or admitted, sufficient to satisfy the court that the change is necessary to procure 
 an impartial trial. The State v. Burris, 4 Harring. 582. 
 
 The place of trial cannot be changed in a criminal case, for the convenience of wit- 
 nesses or parties, though it may be where a fair and impartial trial cannot be had in the 
 proper county. People v. Harris, 4 Denio, 150. (See Waterman's Or. Law. tit. Venue) 
 
76 INDICTMENT. 
 
 [*76] *2. Commencement of the Indictment. 
 
 The following is the form of the 
 
 Commencement of an Indictment. 
 
 Yorkshire, ) The jurors for our Lady the Queen upon their oath 
 to wit. f present, that [&c, stating the matter of the indictment] 
 A second or subsequent count begins thus : " And the jurors aforesaid 
 upon their oath aforesaid do further present, that" &c. 
 
 "Where the indictment commenced " The jurors of our Lady the 
 Queen," it was holden that it was not bad on that account, as the cap- 
 tion would cure it.(a) 
 
 At the assizes, the venue in the margin is the county, or the county 
 of the city or the county of the town corporate, in and for which the 
 assizes are holden. At the quarter sessions, the venue is regulated by 
 the commission of the peace under which the court derive their juris- 
 diction : for instance, at the sessions for the East Eiding of the county 
 of York, the venue is " Bast Eiding of the county of York," and so of 
 the other ridings, and of the divisions of Lincolnshire, each having a 
 separate commission of the peace ; and at the sessions for Hull, the 
 venue is " Borough of Kingston -upon-Hull," and so of other boroughs, 
 having separate commissions of the peace, and separate courts of quar- 
 ter sessions. 
 
 The caption of an indictment is the heading of the record, when the 
 record is made up, and is the same to every indictment found at the 
 same assizes or sessions. It shows, and it must show correctly and 
 with certainity, the court before which the indictment was found, the 
 grand jurors by whom it was found, and the time and place when and 
 where found.(&) It must appear from it that the indictment was found 
 before a court that had jurisdiction of the offence ;(c) it must appear 
 from it, that the jurors who found it were of the county, &c, for which 
 the court was holden, that they were at least twelve in number, and 
 that they found the indictment upon their oaths ;(d) it must show the 
 day and year on which the court was holden, and must state the indict- 
 ment to be then found, in the present tense ;(e) and it must state the 
 place where the indictment is found, and show that it is within the 
 county, &c, in which the court has jurisdiction. (<7)[1] 
 
 (o) Broom v. Regina, 12 Shaw's J. P. 628. (d) 2 Hawk. o. 25, s. 126. 
 (6) 2 Hawk. o. 25, s. 118. (e) Id. o. 127. 
 
 (c) Id. s. 119-123. (fit) Id. s. 128. 
 
 [1] The caption is no part of the indiotment ; its office is to state the style of the court, 
 the time and place of its meeting, the time and place where the indictment was found, and 
 the jurors by whom it was found ; and these particulars it must set forth with reasonable 
 certainty. It is said, also, that it must show that the venire facias was returned, and from 
 
DEFECTIVE VENUE CURED. 76 1 
 
 The following is the form of a 
 
 Caption of an Indictment at the Assizes. 
 
 Warwickshire, \ Be it remembered that at the general sessions of 
 to wit: j the Lady the Queen of oyer and terminer, hplden 
 
 whence the jury came, or it will be fatal on demurrer. M'Clwe v. State, 1 Yerger's Tenn. 
 Eep. 260, per "White, J. ; State v. Sumter, Peck's Tenn. Eep. 16«; State v. Fields, ib. 140 ; 
 State v. Williams, 2 M'Cord, 301, 
 
 A caption to an indictment is necessary only where the court acts under a special commis- 
 sion. State v. Wasden, 2 Taylor, 163. It is no part of the indictment. People v. Jewett, 3 
 "Wend. 319 ; State v. Brickett, 1 N. Car. 354. See if dure v. State, 1 Yerger, 260; State v. 
 Hunter, Peck, 116; State v. Smith, 2 Harr. 533; State v. Jones, 4 Halst. 457_; State v. Wil- 
 liams, 2 M'Cord, 301 ; Vandyke?. Brew, 1 Bailey, 65. 
 
 The preface to a bill of indictment is no part of the presentment of the grand jury, and 
 may be amended at any time so as to conform to the other records of the term. - If wholly 
 omitted, the presentment may nevertheless be sufficient. The minute made by the clerk 
 upon the bill at the time of the presentment, and the general records of the term, will sup- 
 ply any defect in such preface. State v. Gilbert, 13 Verm. 647. 
 
 Where an indictment commenced "the grand jurors within and the body of the county," 
 &c, it was held, on motion in arrest, that the omission of the word "for" after the word 
 " and" did not violate the indictment. State v. Brady, 14 Verm. 353. 
 
 A formal statement and the indictment that it was found by the authority of the State, is 
 not necessary, if it appear from the record that the prosecution was in the name of the State. 
 Greeson v. State, 5 How. (Miss.) 33. 
 
 The name of the county in which the indictment was presented, must either be stated in 
 the margin or appear in the body of the caption. 2 Hale, 165, 166. It is usual to state it 
 not only in the margin, but in the body of the caption, and therefore it is safer to adhere to 
 this form, although the better opinion is, that if it be referred to, as the county- aforesaid, no 
 objection on that account can be supported. lSaund.308; 3 P. Wms. 439. The caption 
 must also set forth the court where the indictment was found, so that it may appear to have 
 jurisdiction. 2 Hale, 166. 
 
 But though the name of the county be left blank in the margin of an indictment for mis- 
 demeanor, it is enough if the county be stated in the body of the indictment. Seft v. Com- 
 monwealth, 8 Leigh, 721. See State v. Lane, 4 Ired. 113. 
 
 State v. Sutton, 1 Murphey, 281. The caption of an indictment must set forth, that, it was 
 found as a special court, if the fact were so ; but where a caption was defective in this re- 
 spect, the court gave leave to amend after conviction. State v. Williams, 2 M'Cord, 301. 
 See Dean v. State, Martin & Yerg. 127 ; Burgess v. Commonwealth, 2 Yirg. Ca. 483; Taylor 
 v. Commonwealth, 2 ib. 94; Commonwealth v. James, 1 Pick. 375. 
 
 The caption of an indictment must set forth with sufficient certainty, the court in which, 
 the jurors by whom, and the time and place at which, the indictment was found. State v. 
 WiUiams, 2 M'Cord, 301, and cases cited above. 
 
 Next to the statement of the court, follows the name of the place and county where it was 
 holden, and which must always be inserted, (Dyer, 69, A.; Cro. Jac. 276; 2 Hale, 166; 
 Hawk. b. 2, c. 25, s. 128; Bac. Ab. Indictment, I;) and, though it may be enough, after 
 naming a place, to refer to "the county aforesaid," yet, unless there be such express refer- 
 ence to the county in the margin, or it be repeated in the body of the caption, it will be in- 
 sufficient. 2 Hale P. C, 180; 3 P. Williams, 439; 1 Saund. 308, note; 1 Cro. Eliz. 
 137, 606, 738. This is necessary, in order to show that the place is within the limits of the 
 jurisdiction ; and, therefore, whether the caption wholly omit the place, or do not state it 
 with sufficient certainty, the proceedings will be alike invalid, though amendable, (Cro. Jac. 
 276; 2 Hale, 166; Hawk. b. 2, c. 25, s. 128; Bac. Abr. Indictment, I.;) as if it state it to be 
 taken only at the town, without adding " the county aforesaid," the omission will yitiate. Cro. 
 
 25 
 
76—2 INDICTMENT. 
 
 at Warwick in and for the said county of Warwick, on Friday 
 
 [*77] the day of , in the year *of the reign of the 
 
 Lady Victoria now Queen of the United Kingdom of Great 
 
 Eliz. 137, 606, 738, 751; 2 Hale, 166; Hawk. b. 2, o. 25, a. 128; Bao. Ab. Indictment, I., 
 ■Williams, J., Indictment, IV. But, though the name of the county be left blank in the mar- 
 gin of an indictment for misdemeanor, it is enough if the county be stated in the body of the 
 indictment. Seeft v. Com.? 8 Leigh, 721. The omission of North Carolina, in an indictment 
 found in a court of that state, where the name of the county is inserted in the margin or 
 body of the indictment, is not a cause for arresting the judgment. State v. Lane, 4 Iredell, 
 113. An indictment in the same state containing, in its caption, a statement of the term in 
 these words: "Fall Term, 1822," and, in the body of the indictment, enarging the time of 
 the offence in these words: "on the first day of August, in the present year," was held 
 good; and it was said that there was no necessity for stating any time in the caption of an 
 indictment found in the County or Supreme Courts. State v. Haddock, 2, Hawk. 461. Whar- 
 ton's Cr. Law, p. 65. 
 
 The caption, by implication, at least, must show that the grand jury were of the county 
 where the indictment was taken. Tipton v. State, Peck's Tenn. Rep. 38 ; per Haywood & 
 Beck, J. J. ; contra, White, J. In Woodsides v. State, 2 How. Miss. Rep. 655, where the 
 caption of the indictment was : " The state of Mississippi, Wilkinson Gomty, ss. The circuit 
 cowrt of Wilkinson County, October term, 1835, thereof, in the year of ovir Lord, 1835. The 
 grand, purors of the state of Mississippi empanneled and sworn in and for the county of Wilkinson, 
 and state of Mississippi, upon, &c;" it was held that the record presented" a sufficient allega- 
 tion that the grand jurors were of the state of Mississippi and of the county of Wilkinson. 
 
 The indictment must be shown to have been taken on oath. 2 Hale, 167. See Jerry v. 
 State, 1 Blackford, 396; Curtis v. People, 1 Breese, 198; Hoffman v. Commonwealth, 6 Rand. 
 685; People y. Guernsey, 3 John. C. 265; Woodsides v. State, 2 How. (Miss.) 655; State v. 
 Fields, Peck, 140; State v. Hunter, Peck, 166. The names of the grand jury ought to 
 appear somewhere in the record. Mahan v. State, 10 Ohio, 232. 
 
 Whore an indictment purports to be on the affirmation of some of the grand jury, it must 
 appear that they alleged themselves conscientiously scrupulous of taking an oath. State v. 
 Fox, 4 Halst. 244; State v. Harris, 2 Halst. 361. If one of the grand jurors be a Quaker, 
 the indictment should conclude, " The jurors for our lady the Queen, upon their oath and 
 affirmation, present," &c. 9 Car. & Payne, 78. 
 
 The words "good and lawful men " include every qualification in this behalf required by 
 law in Indiana. Jerry v. State, 1 Blackford, 396. The'se words in the caption will be 
 understood to mean freeholders. State v. Gktssgow, Cam. & Nor. 38 ; see State v. Price, 6 
 Halst. 203 ; ColMer v. State, 2 Stewart, 288 ; Bonds v. State, Martin & Terger, 143 ; Corn- 
 well v. State, ib. 147. It is unnecessary to set out the words " good and lawful men " in an 
 indictment for murder, in South Carolina. State v. Taney, Const. Rep. 237. 
 
 In New York, it has been held that an indictment taken at the sessions must, in the cap- 
 tion, state that the grand jury were, then and there, sworn and charged; the omission of 
 the words " then and there " will be fatal on motion in arrest of judgment, (People v. Guern- 
 sey, 3 John. Rep. 265 ;) but the contrary was held in Mississippi, where it was said that if 
 it appear from the record that the grand jurors were sworn, it will be presumed that they 
 were then and there sworn. Woodsides v. The State, 2 How. Miss. Rep. 655. 
 
 When an indictment purports to be on the affirmation of some of the grand jurors, it is 
 said, in New Jersey, that it must appear that they were persons entitled by law to take affir- 
 mations in lieu of oaths, or it will be fatally defective ; (State v. Harris, 2 Halstead, 361,) 
 but such is not the usual practice, the indictment going no further, in most states, than to 
 aver the fact of its being made on the oaths and affirmations of the grand jurors. If the 
 caption omit to state the grand jury were sworn, it will be, presumed they were sworn ; at 
 least the recital in the indictment that "the grand jury were elected, empanneled, sworn, 
 and charged," will be sufficient. McClurev. State, 1 Terger, 2G0,per Catron, J. 
 
DEFECTIVE VENUE CURED. 77 
 
 Britain and Ireland, before Sir , knight, one of the justices of our 
 
 said Lady the Queen assigned to hold pleas before the Queen herself, 
 
 Sir , knight, one of the justices of our said Lady the Queen of 
 
 her court of Common Bench, and others their fellows, justices of the 
 said Lady the Queen, assigned by letters patent of our said Lady the 
 Queen under her great seal of the United Kingdom, made to them the 
 aforesaid justices and others, and any two or more of them (whereof 
 
 one of them the said Sir ■ — , and Sir j , the said Lady the Queen 
 
 would have to be one,) to enquire (by the oath of good and lawful 
 men of the county aforesaid, by whom the truth of the matter might 
 be better known, and by other ways, methods, and means whereby they 
 could or might the better know, as well within liberties as without) 
 more fully the truth of all treasons, misprisons of treasons, insurrec- 
 tions, rebellions, counterfeitings, clippings, washings, false coinings, and 
 other falsities of the monies of the United Kingdom, and of other 
 kingdoms and dominions whatsoever ; and of all murders, felonies, 
 manslaughters, killings, burglaries, rapes of women, unlawful meet- 
 ings and conventicles, unlawful uttering of words, unlawful assemblies, 
 misprisons, confederacies, false allegations, trespasses, riots, routs, re- 
 tentions, escapes, contempts, falsities, negligences, concealments, main- 
 tenancies, opressions, champerties, deceits, and all other misdeeds, of- 
 fences, and injuries whatsoever, and also the accessories of the same, 
 within the county aforesaid, as well within the liberties as without, by 
 whomsoever or howsoever done, had, perpetrated and committed and 
 by whom, to whom, when, how, and in what manner^ and of all other 
 articles and circumstances in the said letters patent of the said Lady 
 the Queen specified, the premises and every or any of them howsoever 
 concerning ; and for this time to hear and determine the said treasons 
 and other the premises according to the law and custom of the realm 
 of England ; and also keepers of the peace, and justices of the said 
 Lady the Queen assigned to hear and determine divers_ felonies, tres- 
 passes, and other misdemeanors committed within the county aforesaid, 
 • — -by the oath of A. B. [&c, naming the grand jurors] esquires, good 
 and lawful men of the county aforesaid, then and there empanneled, 
 sworn, and charged to inquire, for the said Lady the Queen, and for the 
 body of the said county, it is presented that [&c, setting out the indict- 
 ment to the end.](a) 
 
 Caption of Indictment at the Sessions. 
 
 Hast Biding of the [ At the general quarter sessions of the 
 county of York, to wit : ) peace, holden at the town of *Beverly, [*78J 
 
 in and for the said riding, on Tuesday the day of , in 
 
 the year of the reign of our sovereign Lady Yictoria, by the grace 
 
 {a) i Bl. Cora. Ap. i. 
 
78 INDICTMENT. 
 
 of God of the United Kingdom of Great Britian and Ireland, Queen, 
 defender of trie faith, before A. B. and C. D., esquires, and others their 
 associates, justices of our said Lady the Queen, assigned^ to keep the 
 peace in the said riding, and also to hear and determine divers felonies 
 trespasses, and other misdemeanors in the said riding committed,— by 
 the oath of twelve good and lawful men of the riding aforesaid, sworn 
 and charged to inquire for our said Lady the Queen, and for the body 
 of the riding aforesaid, it is presented that [&c, setting out the indictment 
 to the end.] 
 
 Although in the first of the above forms the names of the grand ju- 
 rors are set out, according to the precedent from which it is taken, yet 
 it has been holden, on error to the House of Lords,, that this is not 
 necessary.(a) I have accordingly omitted the names in the second of 
 the, above forms. [1] 
 
 (a) Aylett v. Bex, in error, 3 Bro. Pari. Ca: 529. 
 
 [1] When there is an/ material defect in the caption, the court may in their discretion 
 either quash it, or leave the defendant to demur, as in case of the indictment itself. Hawk. 
 b. 2, c. 25, s. 146 ; Bac. Ab. Indictment, K. To induce the court to quash an indictment 
 for a defect in the caption the defect must be of a clear and decisive character. State v. 
 Hickman, 3 Halsted, 299. So that the observations we have already made on that subject, 
 will also be applicable here, and therefore it would be useless to repeat them. Any objec- 
 tion to the jurisdiction of the inferior court, apparent from the caption as well as to the sub- 
 ject matter of the indictment itself, may be taken advantage of upon demurrer. 1 T. R. 316 ; 
 2 Leach, 425. 
 
 But though the caption, like the indictment itself, may, if defective, be either quashed by 
 the court or demurred to on the part of the defendant, it differs materially from it in its 
 capacity of amendments, for the return to the court is merely a ministerial act, and ministerial 
 acts may be amended at any time according to the common law. 1 Saund. 249, 250 a. ; 3 
 Mod. 16T ; Comb. 10, 13. It has, indeed, been frequently holden, that a mistake of the 
 clerk in making up the record can be amended only in the term in which the return is made, 
 and not at any subsequent period; (Sir W. Jones, 420 ; 1 Roll. Ab. 196 ; Style, 85 ; 8 Co. 
 156, 157 ; Bro. Ab. Amendment, 32 ; 2 Sess. Cas. 9 ; 1 Sid. 155, 115 ; 2 Hale, 168 ; 2 Id. 
 Raym. 968, 1039; 6 Mod. 213, 278; 1 Vent. 344; Hawk. b. 2, u. 25, s. 97; Bac. Abr. In- 
 dictment, G-. 11 ;) but the contrary has also been often determined, (3 Mod. 167 ; Comb. 73, 
 Cro. Jac. 592, 276, 7 ; 1 Stra. 138 ; 2 Ld. Raym. 1518 ; 4 Burr. 2527 ; 1 Sid. 244; 2 Bulstr. 
 35 ; 2 Stra. 843 ; 4 Bla. Com. 407 ; 2 Roll. Rep. 59,) and is so settled after considerable 
 investigation, upon the ground that ministerial acts are at any time amendable, and that the 
 alteration in the caption is not to alter the return, but to make the copy correspond with the 
 original. 1 Saund. 249, n. 1 ; 4 East. 175 ; 3 Mod. 167. And agreeably to this resolution, 
 the return to the writ of certiorari has been amended by rule of court, by inserting the time 
 when the quarter sessions were holden, and the names of the justices who were present, and 
 the names of the jurors by whom the indictment was presented, though the latter is no w un- 
 necessary ; and the entry-roll and record of Nisi Prius have been altered to make them 
 agree with the amended caption after the term in which the certiorari was returned, and 
 even after a general verdict of guilty. 4 East, 175, 6; 3 Mod. 167. But it has been said, 
 that the caption of an inquisition cannot be amended at any time after it is filed, any more 
 than the body, because it is drawn at the time with the indictment itself, and forms a part 
 
DEFENDANT HOW NAKED. 78 — 1 
 
 3. Body of the Indictment. 
 
 (a) Defendant how named. 
 
 The person charged by the indictment must be discribed by his chris- 
 tian or first name, and his surname. [2] 
 
 of the accusation, while in other cases it is merely made up from the schedule by the clerk 
 of the court, as its ministerial officer. Hawk. b. 2, c. 25, s. 97 ; but see Stark. 261. 
 
 Pennsylvania. — Defects in the caption of an indictment, as not naming the judges, the 
 jurors, the place, &c. which might be fatal if the indictment were so removed into a superior 
 court, may be supplied in the court Where it was taken, by reference to other records there. 
 Addison's Rep. 174 — 80. See State v. Williams, 3 McGord, 301. 
 
 It has been held in Pennsylvania that defects in the caption of the indictment, as not 
 naming the judges, the jurors, and the county, which would be fatal if the indictment were 
 removed into a superior court, may be supplied in the court in which it is taken by reference 
 to other records there. Pennsylvania v. Bell, Add. 173. And in New Jersey, it is said that 
 it may be amended in the Supreme Court, on proper evidence of the facts ; or the certiorari 
 may be returned to the court below and the amendment made there. State v. Jones, 4 Hal- 
 stead, 457. And such is the practice in South Carolina. State. v. Williams, 2 M'Cord 341 ; 
 Vandyke v. Dare, 1 Bailey 16. 
 
 [2] A name which he has usually gone by and acknowledged, is sufficient; and if there be 
 a doubt which of two names is the real one, the second may be added after an alias dictus, 
 thus : " Richard Wilson, otherwise called Richard Sayer." If his name be unknown, and he 
 refuse to disclose it, be may be indicted as ''a person whose name is to the jurors unknown, 
 but who was personally brought before them by the keeper of the prison." Mat. Dig. 270. 
 But an indictment against him as a person to the jurors unknown, is insufficient, without 
 something to ascertain whom the grand jury meant. Russ & Ry. C. C. 489. If, however, 
 it appears in evidence that he is known, it seems he must be acquitted. 1 Holt, 595 ; 3 
 Campb. 264. And where, in an indictment for receiving stolen goods, the principal was so 
 described, and it appeared that he was known, the receiver was acquitted for the variance. 
 Id. ib. But if the principal be really unknown, he may be so described in an indictment 
 against the receiver. 2 East's P. C. 781. 
 
 Where T. H. P. was indicted by the name of T. P., junior, it was held a misnomer. 1 
 Pick. 388 ; 3 id. 2d ed. 262, 263, n. 1. But in another case, (3 Peter's 7,) Thompson, J. 
 said : " It may well be questioned whether the middle letter of a name forms any part of the 
 christian name of a party.'' And in a case in the supreme court of this state, it was expressly 
 decided that the law recognizes but one christian name. 5 John. 84 ; See also Co. Litt. 3 
 (a) 1 lid. Raym. 562. Junior, or younger, also forms no part of the name. 1 Pick. 388 ; 
 10 Mass. Rep. 205 ; 7 John. 549. A defendant cannot be described with an alias dictus of 
 the christian name. 1 Chit. Cr. L. 203, and note (m.) 
 
 It seems, that if the sound of the name is not affected by the mis-spelling, the error will 
 not be material. Id. ib. ; 10 East, 84; 16 id. 110; Russ. & Ry. C. C. 412. And if two 
 names are in original derivation the same, and taken promiscuously in common use, though 
 they differ in sound, yet there is no variance. 2 Roll. Abr. 135 ; Bac. Abr. Misnomer. 
 
 If the defendant plead misnomer of his surname, the prosecutor may reply, that the defend- 
 ant is known as well by one name as the other. 2 Hale, 238. Where a man is in the habit 
 of using initials for his christian name, and is so indicted, and the fact whether he was so 
 known is put in issue, and he is convicted, the court will not interfere on that ground ; for 
 if a man by his own conduct renders it doubtful what his real name is, he is answerable for 
 the consequences. 4 M'Cord, 487 ; see also 2 Cromp. & Jer. 215. 
 
 Whatever mistakes may be made in the name of the defendant, however, he cannot after- 
 wards take advantage of the error, if he appears and pleads not guilty. 1 Chit. Cr. L. 202 • 
 1 Bay, 377. Misnomer, is only matter of abatement, and is not a good cause for arresting 
 the judgment. 16 Mass. Rep. 146, 147. 
 
78 — 2 INDICTMENT. 
 
 Formerly also, his addition of place or late residence, and his addi- 
 tion of degree or mystery, must have been given ; as—" late of the 
 
 parish of , in the county of , laborer," or the like ; and if it 
 
 were omitted, or a wrong addition given to him, he might plead the 
 matter in abatement. But now by stat. 14 & 15 Vict. c. 100, s. 24, no 
 indictment for any offence shall be holden insufficient " for want of, or 
 imperfection in, the addition of any defendant;" and such addition may 
 therefore be safely omitted altogether. [3] 
 
 The name of the defendant committing the offence must be repeated to every distinct 
 allegation ; but it will suffice to mention it once as the nominative case in one continuing 
 sentence. 4 Harg. St. Tr. 74T. 
 
 Where a name appears to be a foreign one, a variance of a letter which according to the 
 pronunciation of the language, does not vary the sound, is not a misnomer, as Petris for 
 Petrie. Petrie v. Woodward, 3 Caine's Rep. 219 , State v Upton, 1 Devereux, 513. Where 
 Surnames with a prefix to them, are ordinarily written with an abbreviation, the names thus 
 written in an indictment are sufficient. State v. Keene, 10 N. Hamp. Hep. 341. 
 
 Where a father and son have the same name, and are both indicted the English rule is to 
 distinguish them by naming one as the elder, the other as the youuger. In Massachusetts 
 and Maine, however, it has been said that junior is no part of the name. Com. v. Perkins, 
 1 Pick. 388 ; State v. Grant, 22 Maine, 111 ; See Cort v. Stackweather, 8 Connecticut, 280. 
 But in New Hampshire, it was held that when L. W. and L. W., Junior, being father and 
 son, live in the same town, and the indictment averred certain acts to be done by L. W., 
 evidence was not admissible to show they were done by L. W., junior, it being presumed 
 that L. W. in the indictment, meant L. W„ senior. State v. VUurn, 9 New Hamp. Rep. 519. 
 In New York, in » similar case, it was said that if a man be known by the addition of 
 "junior" to his name, an indictment against him, without that addition, is not conclusive that 
 he was the person indicted. 2 Caine's Rep. 3 65. 
 
 [3] In England, at common law, as well as by statute 1 Henry, 5, ch. 5, it was formerly 
 necessary to state iu indictments, not only the name of the defendant, but his addition of 
 estate, degree, or mystery. The statute of 1 Henry, 5, ch. 5, is said to be in force in most 
 of the United States. In New York, it is customary to state the defendant's addition, 
 although there is no statute making it necessary. 
 
 The addition required is of his degree, as yeoman, gentleman, esquire; of his mystery, as 
 husbandman, sailor, spinster, &c. And it should be the addition to which the party was 
 entitled at the time of the indictment. "Late Esq." &c. would be bad. Leach, 420. 
 Therefore, if the addition be only general, as a servant, farmer, citizen, &c., these are no 
 good additions. Crown Cir. Comp. 42. 
 
 The additions commonly in use are, for a man, laborer ; for a woman, if single, spinster ; 
 if married, A. B., the wife of 0. D., laborer ; if a widow, widow. Ibid. 
 
 The addition ought to be to the substantive name, and not to the alias dictus. Ibid. ; 1 
 Chit. Cr. L. 209. 
 
 Laborer and yeoman, though both good additions for a man, are bad when applied to a 
 female ; but she may be described as the wife of A. B., yeoman, because that term applies 
 with certainty to the husband ; but not as the wife of A. B., spinster, because they may 
 refer either to the wife or the husband. 1 Chit. Or. L. 206. 
 
 With respect to the addition of mystery, the following are sufficient: husbandman, mer- 
 chant, tailor, broker, hostler, smith, miller, manufacturer, carpenter, cook, brewer, baker, 
 butcher, parish clerk, schoolmaster, scrivener, mercer, fishmonger, dyer, and all other lawful 
 trades and professions. Ibid. But all epithets which charge the defendant with improper 
 or unlawful practices are insufficient ; as maintainer, extortioner, abettor, vagabond, common 
 informer, thief; and all terms of a similar description. So also the addition of an office is 
 bad, unless the defendant is prosecuted for something done in his official capacity. Ibid. 
 
DEPENDANT HOW NAMED. 78—3 
 
 And whether the names, or the addition (if any) given to the defen- 
 dant in the indictment, be a correct description of him or not, is now 
 immaterial ; for by stat. 7 G. 4, c. 64, s. 19, no indictment or infor- 
 mation shall be abated by any dilatory plea of misnomer or of want of 
 addition or of wrong addition of the party offering snch plea ; but the 
 court, if satisfied of the truth of the plea by affidavit or otherwise, 
 shall forthwith cause the indictment or information to be amended, and 
 shall call upon the party to plead thereto, and shall proceed as if no 
 such dilatory plea had been pleaded. It may be necessary here to ob- 
 serve, that a name of dignity, as Baron, Baronet, Garter King at 
 Arms,(a) or the like, is not an addition, but as much a part of the name 
 of the defendant as his christian or surname. But if it be omitted, or 
 erroneously stated, this is the. subject of amendment, within the mean- 
 ing of the section last mentioned. [4] 
 
 (6) 2 Hawk. c. 25, s. 69. 
 
 It is said that where the defendant is engaged in several occupations, he may be described 
 by either of them. But if a gentleman by birth engage in trade, he should be described as 
 a gentleman, and not by his art or mystery. lb. 208 ; 2 Inst. 688. 
 
 The additions in common use in the United States, are yeoman, laboror, and gentleman ; 
 and there are few cases in which the defendant, on being indicted as such, has pleaded in 
 abatement. In Virginia, however, where' the common law distinctions have been carried 
 out with a nicety which approaches to the English practice, it has been held that the differ- 
 ence between the addition of laborer and yeoman is sufficient to abate the indictment. 
 Com. v. Sims, 2 Virg. Cas. 314. 
 
 Any addition- calculated to cast contempt or ridicule on the defendant is bad, and it has 
 been held, in Maine, tnat the addition, "lottery vendor" when the defendant was, in fact, a 
 lottery broker, is bad on abatement. State v. Bishop, 15 Maine Eep. 122. "Where, in an 
 indictment against a woman, she is described as A. B.,- "wife of 0. D.," these latter words 
 are mere addition, or descriptio personal, and need not be proved on trial. 
 
 As to the addition of the residence of the defendant, it seems that a county as well as a 
 place must, in general, be laid in the indictment. If the defendant occasionally live in two 
 places, the addition of either will suffice. If there are two places in the same county, the 
 names of which are partly similar, as Great Dale and Little Dale, the defendant cannot be 
 indicted as of Dale only. So, if the same place be sometimes called North Dale and some- 
 times East Dale, but never Dale simply, he may plead that there is no such town, 
 because a part of the name is not equal to the whole. 1 Chit. Cr. L. 209. But it seems 
 that if there are two places of precisely the same name, in the same county, and never other- 
 wise denominated, it will suffice to allege the defendant to be of the town generally, without 
 adding any distinction. Ibid. 209, 210. 
 
 The defendant must be described as of the town, or hamlet, or place, and county, of which 
 he was, or is, or in which he is or was conversant. In Massachusetts, Rhode Island, Penn- 
 sylvania, Louisiana, and, in fact, in most of the states, the forms in common use give the 
 
 addition of place, as "late of the said county," or " of the county of ." In the city 
 
 New York, the practice is to charge ''late of the ward, in the city of New York." 
 
 Wharton's Cr. Law, p. 69, 70. 
 
 [4] The Revised Statutes of Massachusetts provide that no indictment shall be quashed or 
 deemed invalid, nor shall the judgment or proceedings thereon be arrested or affected by 
 reason of the omission, or mis-statement of the title, occupation, estate or degree of the de- 
 fendant, or of the name of the city, town, county, or place of his residence. Rev. Stat, of 
 Mass. ch. 131, sec. 14. And there is a similar statute in New York. 2 N. Y. Rev. Stat. 
 728, sec. 52. 
 
79 INDICTMENT. 
 
 [*79] *When however it is necessary to discribe the defendant in 
 any particular way to bring him within the purview of any stat- 
 ute on which the indictment is framed, such statute extending only to 
 such persons as are named in it,— the indictment must so describe the 
 party, as to bring him within the words and meaning of the statute, 
 and the evidence must support the description.(a) 
 
 In indictments against a parish or township for the non-repair of a 
 highway,(J) or the inhabitants of a county for not repairing a bridge, 
 the indictment may be against the inhabitants of the parish, township, 
 or county generally, without naming any individual. 
 
 An indictment against a corporation, must charge them by their cor- 
 porate names ;(c) and if there be any mistake in doing so, it may be reme- 
 died by amendment as above-mentioned. [1] 
 
 (&) Prosecutor or party injured, how named. 
 
 The prosecutor or party injured, or any other person named in the 
 indictment, if known, must be described with certainty ;(d) if an indi- 
 vidual, he must be described by his christian and surname ; if a cor- 
 poration, by their name of incorporation. But it is not necessary to 
 give any addition of degree or mystery ;(e) nor is it safe to do so ; for 
 where in bigmay, the second wife was described as Elizabeth Chant, 
 widow, and it appeared in evidence that she was at the time, in fact 
 and by reputation, a single woman, the judges held the misdescription 
 to be fatal, although it was not necessary to have stated more than the 
 name of the party.(gr) But if the party be described by the name by 
 which he is usually known, it will be sufficient; and therefore where 
 the prosecutor is named in the indictment " John Hancox," his real 
 name being John Walter Hancox, but he was usually called and 
 known by the name of John Hancox, Parke, J. held it to be suffi- 
 cient.^) So, where the real name was Eichard Jeremiah Pratt, but 
 
 (a) 2 Hawk. 0. 25, s. 112. &Ald. 5t9. 
 
 (6) Id. o. 68. (g) R. v. Deeley, R. & Ry. 303 ; 4 Oar. & P. 
 
 (c) See ante, pp. 8, 9. 5T9. 
 
 (d) 2 Hawk. o. 25, s. 11. (ft) R v. Berriman, 5 Car. & P. 601. 
 
 (e) 2 Hale, 182; and see E. v. Peace, 3 B. 
 
 [1] In Pennsylvania, it was determined, that where an act of assembly directed " the 
 president, managers, and company" or a certain turnpike-road to remove a gate on the road, 
 that an indictment would not lie against the president and managers, individually, for not 
 removing the gate. Com. v. Demuth, 12 Serg. & Rawle, 389. In Maine, however, it is 
 said, that where an offence is committed by virtue of corporate authority, the individuals 
 concerned in its commission, in their personal capacity, and not as a corporation, must bo in- 
 dicted, (Stale v. Great Works, 20 Maine Rep. 41 ;) and, in Virginia, it has been determined 
 still more broadly, that a corporation cannot be impleaded criminaliter by its artificial name 
 at common law. Com. v. Swift Ban Gap Turnpike Co. 2 Yirg. Ca. 362. Whart. Or. Law. 
 
PROSECUTOR OR PARTY INJURED, HOW NAMED. 79 — \ 
 
 he was named in the indictment Bichard Pratt, the name by which he 
 was generally known, it was holden sufncient.(a) So, where the prose- 
 cutrix was named in the indictment by a name which she had assumed, 
 but by which alone she was known in the neighborhood, the judges 
 held it sufficient. (7>) So, where the prosecutor was named Charles 
 Frederick Augustus William, duke of Brunswick, that being the name 
 by which he was generally known, though his proper family name 
 was D'Este : the court held that as the law in this case only required 
 certainty to a common intent, the description was sufficient. (c) So, if 
 a bastard acquire a name by reputation, he may be described 
 by it in the indictment. And *when a child was baptized by the [*80] 
 name of Louis,-, and his mother's maiden name was Drake, the 
 only name by which she was known, and the nurse to whom he was sent 
 spoke of him to several persons as Louis Drake, — this was holden to 
 be evidence to go to the jury, to say whether he was not a bastard, and 
 whether he had not acquired this name of Drake by reputation.(c£) So, 
 if the name in the indictment be spelt differently from the real and 
 usual mode of spelling it, but be idem sonans with it, (and whether it 
 be idem sonans seems to be a question to be left to the jury,) it will be 
 sufficient ; otherwise not.(e) But the indictment shall not be holden in- 
 sufficient, because any person therein mentioned is designated by a 
 name of office, or other descriptive appellation, instead of his proper 
 name.(#)[l] 
 
 (a) Anon. 6 Car. & P. 408. (d) R. v. Drake, 14 Shaw's J. P. 483. 
 
 (6) R. v. Norton, R. & Ry. 510. (e) R. v. Davis, 20 Law J. 207, m. 
 
 \c)R. v. Gregory, 10 Shaw's J. P. 262. (?) 14 & 15 Vict. u. 100, & 24. 
 
 [1] The statute of additions extends to the defendant alone, and does not at all affect the 
 description either of the prosecutor, or any other individuals whom it may be. necessary to 
 name, (2 Leach, 861; 2 Hale, 182; Burn, J. Indictment; Bae. Abr. Indictment, Gr. 2. Ogil- 
 vie's case, 2 Carr. & Eayne, 230 ; Roscoe's Dig. Cr. Ev. 81 ; 2 Russell, 707, 108, n. (o),) and, 
 therefore, no addition is in any case necessary, unless more than two persons are referred 
 to, whose names are similar, (ibid. ;) and even this does not seem absolutely necessary, for 
 where, upon an indictraant for assaulting Elizabeth Edwards, it appeared that there were 
 mother and daughter of that name, and that the assault was upon the daughter, it was held 
 sufficient. 3 B. & A. 579. Jackson v. Prevost, 2 Caines, 165. Indeed, with respect to this 
 matter, certainty to a common intent is all that the law requires, and if the description be 
 sufficiently explicit to inform the prisoner who are his accusers, the indictment may be sup- 
 ported. 1 Leach, 248 ; 2 Leach, 861 ; Hawk. b. 2, u. 25, s. 72. But it is, in general, neces- 
 sary to set forth the names of third persons with sufficient certainty; and, therefore, it seems 
 to be generally agreed at this day, that an indictment for suffering divers bakers to bake, &c. 
 against the assize, when that offence was indictable, or for distraining divers persons with- 
 out just cause, or for taking divers sums of money of divers persons without just cause, or 
 for taking divers sums of money of divers persons for toll, cannot be supported. Hawk. b. 
 2, u. 25, s. 71; Bac. Abr. Indictment, G. 2; Bro. Indictment, 21; 2 Rol. Abr. 80; but in an 
 indictment for lodging poor persons in an unhealthy place, it was held not necessary to state 
 the names of such persons. Cald. 432. See Commonwealth v. Maxwell, 2 Pick, 139. An 
 indictment for retailing spirituous liquors to divers persons, without license, is bad. State v. 
 Stockey, 2 Blackf. 289. 
 
 26 
 
80 INDICTMENT. 
 
 If, however, the name of the party be unknown, he should be de- 
 scribed as " a person to the jurors aforesaid unknown ;"(a) but if after- 
 wards at the trial it appear that the party is known, the defendant 
 must be acquitted. Where the prisoner was indicted for plundering a 
 vessel which had been wrecked, and the property was laid, in the first 
 count, to belong to persons therein-named, ancl in the second count to 
 belong to persons unknown ; at the trial, the witnesses did not know 
 the christian names of the owners, so that the first count could not be 
 proved; and the counsel for the prosecution then proposed to rely upon 
 the second count : but Eichards, C. B., held that the defendant must 
 be acquitted ; his lordship said, " The owners it appears are known, 
 but the evidence is defective on this point ; how can ' I say that the 
 owners are unknown ? I remember a case at Chester, where the pro- 
 perty was laid as belonging to a person unknown, but upon the trial it 
 was clear that the owner was known, and might easily have been 
 ascertained by the prosecutor ; and Lord Kenyon accordingly directed 
 an acquittal. "(b) So, where an indictment against an accessory before 
 the fact to a larceny, stated the larceny to have been committed by a 
 person unknown, and the grand jury found the bill on the evidence of 
 a person who acknowledged that he had committed the larceny: Le 
 Blanc, J. ordered the defendant to be acquitted.(c) Where a man 
 named Daniel Campbell was indicted for the manslaughter of a woman, 
 who, in the first count was called Catherine Macgennis, in the second, 
 Catherine Campbell, and in the third, a person to the jurors unknown ; 
 and it appeared in evidence that her christian name was not known, 
 that there was no proof of her surname being Macgennis, and the only 
 proof of her name being Campbell, was, that the prisoner at one time 
 
 stated her to be his wife, though he afterwards denied it: 
 [*81] Erskine, J. left it to the *jury to say whether she was the wife 
 
 of the prisoner, for if so, she was entitled to the name of Camp- 
 bell, though not to that of Catherine, but if she was not his wife, and 
 the jury believed that her name could not with due diligence have 
 been ascertained, then she was a person unknown within the meaning 
 of the third count: the jury acquitted the prisoner.(cZ) In another 
 case, where s woman named Stroud was indicted for the murder of her 
 illegitimate child, which in the first count was called " Harriet Stroud," 
 and in the second as " a female of tender age, whose name is to the 
 jurors aforesaid unknown ;" the evidence was, that the child was bap- 
 tized by the name of Harriet, and not Harriet Stroud ; the prisoner 
 was found guilty ; but the case being reserved for the opinion of the 
 judges, they held that she ought not to have been convicted on either 
 
 (a) 2 Hawk. o. 26, s. U ; and see R. v. (c) R. v. Walker, 3 Camp. 264. 
 Mary Smith, 6 Car. & P. 151. (d) R- v. CarnpleU, 1 Car. & K. 82. 
 
 (Z>) R. v. Robinson, Holt, 595. 
 
PROSECUTOR OR PARTY INJURED, HOW NAMED. 81 
 
 count : not on the first count, because the child's name was not proved 
 to be Harriet Stroud ; and not on the second, because the child had a 
 name, " Harriet," by which it might have been described in the indict- 
 ment.(a) But where a woman was indicted for murdering her illegiti- 
 mate child immediately after its birth, and it was neither described by 
 any name, nor as a child whose name to the jurors was unknown : the 
 woman being acquitted of the murder, but convicted of concealing the 
 birth, this seeming defect in the indictment was made the subject of a 
 motion in arrest of judgment ; but Coleridge, J., held the indictment 
 to be correct ; the child being illegitimate, could have no name but by 
 reputation, and it could not have acquired that at the time of its death ; 
 and to state in the indictment that its name was to the jurors unknown, 
 was assuming that it had a name.(5) And this decision was after- 
 wards confirmed by the judges.(c)[l] 
 
 (a) R. v. Sarah Stroud, 1 Car. & K. 181. (o) R. v. Willis, 1 Car. & K. 782. 
 
 (b) R. v. Willis, 1 Car. & K. 722. 
 
 [1] There are, indeed,- some cases in which the names of third persons cannot be ascer- 
 tained, in which it is sufficient to state "a certain person or persons to the jurors aforesaid 
 unknown." Hawk. b. 2, c. 25, s. 11; 2 East P. C. 651, 781; Cro. C. C. 36; Plowd. 85, b. ; 
 Dyer, 97, 286; 2 Hale, 181. Roscoe's Dig. Cr. Ev. 81; Rex v. Smith, 6 Carr. & Payne, 151. 
 Thus, an indictment for harboring thieves unknown, is sufficient, from the necessity of the 
 case, and the fair presumption which exists that their names cannot be ascertained. Ibid. ; 
 Sta. 497, 186. So, upon the same ground, if the dead body of a person murdered be found, 
 and is impossible to discover who he was, an indictment for having killed some one unknown 
 would be valid. 2 Hale, 181 ; Dyer, 99, a. 285 ; Plowd. 85, 129 ; Hawk. b. 2, c. 23, s. 18 ; 
 Hawk. b. 2, c. 25, s. 71; Bac. Abr. Indictment, G. 2; Burn, J. Indictment; Cro. C. C. 36. 
 And if stolen goods be found upon a highwayman, and it isjnot known to whom they belong, 
 he may be indicted for stealing the goods and chattels of some one or certain persons unknown. 
 Ibid. ; Keilw. 25 ; 2 East P. C. 651, 781. And in treason or in trespass, it is enough to say, 
 that he hath procured some one unknown, because all are principals. Com. Dig. Indictment, 
 G. 1. And the receiver of stolen goods may be indicted, without naming the principal felon. 
 
 2 East P. C. 781 ; Campb. 264, 265. See Eolford v. State, 2 Blackf. 103 ; Com. v. Andrews, 
 
 3 Mass. 126. Thus, also, in the indictment of the regicides for having procured the death 
 of Charles the First, the fact was agreed to be well laid as done by some one unknown, 
 whose face was concealed by a vizor. Kel. 10 ; Hawk. b. 2, c. 25. s. 71 ; Com. Dig,_ Indict- 
 ment, G-. 1. And thus, if a man steal the goods of an abbey during a vacaney, he may be 
 prosecuted for stealing the goods of the church, though the church can have no property. 
 Hawk. b. 2, c. 25, s. 71. 
 
 But these cases are exceptions to the general rule, and are supported by the particular 
 circumstances which render a strict observance of the common maxim incompatible with the 
 purposes of justices. For wherever the name of the party injured is known, it is absolutely 
 necessary to insert it. 3 Campb. 264, 265 ; 2 Russ. 1313 ; Hawk. b. 2, c. 25, s- 71 ; Burn. 
 J. Indictment; Cro. C. C. 36; Sum. 95; Plowd. 85; Keil. 25; Dyer, 99; Dalt. J. c. 131; 9 
 H. 6, 46. Thus, in an indictment for larceny, though the goods may be laid to be the pro- 
 perty of persons wnknown, if that is actually the case (State v. Haddock, 2 Hayw. 162,) yet if 
 the owner be really known, the allegation will be improper, and the prisoner must be dis- 
 charged from that indictment, and tried upon a new one rectifying the mistake. 2 East P. 
 C. 651, 781; 3 Campb. 265, note; 1 Hale, 512; Hawk. b. 2, c. 25, s. 71; 2 Leach, 578; Ken- 
 yon, 598. Where an indictment laid a watch stolen to be the property of A., and the proof 
 
81 — 1 INDICTMENT. 
 
 By stat. 7 G. 4, c. 64, s. 14, in any indictment or information where- 
 in it snail be requisite to state the ownership of any property whatso- 
 
 was that B. wag the general owner, but that he had exchanged watches, with A. for a few 
 weeks, and the watch was stolen while in the possession of A., it was held that A. had a 
 special property in the watch sufficient to sustain the indictment. Yates v. State, 10 Yerger, 
 549. And an indictment will be bad against an accessory, stating the principal to be un- 
 known contrary to truth, and the judge will direct an acquittal. 3 Campb. 264, 265 ; 2 East 
 P. C. T81; 2 Russ. 1313. And where the parties' names may be ascertained on inquiry, it 
 seems they must be named ; and where property was stated' in one count to belong to cer- 
 tain persons, naming them specifically, but in another count to belong to persons unknown, 
 and the prosecutor by defect of evidence could not prove the Christian names of the persons 
 as described in the first count, it was considered he could not recur to the other count, (Holt, 
 C. N. P. 595 ;) but the finding of a grand jury of a bill for receiving goods, imputing the 
 same to have been stolen by J. S., does not of itself negative, in another indictment for the 
 same offence, an averment that the goods were stolen by persons unknown. Russ. & Ry. 
 C. C. 372. In an indictment for larceny, the owner of the property stolen must, if known, 
 be accurately stated, and a variance would be fatal. 1 Mass. Rep. 476. Com. v. Morse, 14 
 Mass. 217, 218; Corn. v. Maniey, 12 Pick. 173, 174. And it was anciently decided, that, 
 where a man is indicted for murdering another, the name of the party killed ought to be dis- 
 closed by the inquest ; but this could only mean where the name was capable of discovery. 
 Hawk. b. 2, c. 25, s. 71 ; Staundf. 181, b. 2, c. 18. And, upon the same principle, in indict- 
 ments for burglary, and stealing in a dwelling-house to the value of forty shillings, stealing 
 ing from the lodgings, and for arson, the name of the owner of the house must i>e truly in- 
 serted, (Leach, 89, 21, 78, 9, 237, 252, 336, 338, 545, 774: 2 East P. C. 531, 780; 2 Hale, 
 244, 245. And an indictment for pulling down a dwelling-house as well as for burglary, 
 must set forth correctly, whose house it is; and, therefore, where the indictment charged 
 that it was the dwelling-house of A., and it appeared that A. was a, feme covert, a new trial 
 was granted. State v. Martin, 2 Murphey, 533 ;) but if he be known by one name as well as 
 by another, the indictment may describe him of either. 2 Hale, 244, 245 ; Hawk. b. 2, u. 
 35, s. 3. So, in an indictment on the black aot, for maliciously shooting at the pTosecutor, 
 if the offence be laid in the house of a third person, an error in his name will be a fatal va- 
 riance. 1 Leach, 351 ; 1 East P. C. 415 ; 2 Hale, 244, 245 ; but see Stark. 178, notes (f) and 
 
 It has also been laid down, that an indictment against a thief, that he found a dead body 
 and stole from it certain property, is good, without calling them the goods and chattels of 
 any one. 2 Hale, 181 ; Bac. Abr. Indictment, G. 2. See Wonson v. Sayward, 13 Pick. 402. 
 And if a grave be opened in the night, and the shroud be stolen, the indictment cannot lay 
 the goods as the property of the deceased, but must state them to belong to his executors, 
 or those who buried the deceased. 12 Co. 113 ; 3 Inst. 110 ; 2 Hale, 181 ; Cro. C. C. 36 ; 
 Bac Abr. Indictment, G. 2; 2 East P C. 652. Judgment will be arrested, where the pro- 
 perty stolen is laid as belonging to a person who is deceased. State v. Davis, 2 Car. Law 
 Repos 291 And if goods be stolen from the custody of one who has them as executor, the 
 offender may either be indicted for stealing the goods of the testator in the custody of the 
 executor, or the goods of the executor without naming him in that capacity. 2 Hale, 181 ; 
 Bac. Abr. Indictment, G. 2. A corporation must prosecute in their corporate name, and the 
 names of the individuals composing it will not suffice. 1 Leach, 253 ; 2 East P. C. 1059; 
 and see 1 Ry. & Moo. C. C. 15. But, on the other hand, where property is vested in trus- 
 tees under an act of parliament, if they are not incorporated, they must be described by their 
 proper names as individuals, and their character as trustees subjoined as a description of the 
 capacity in which the legislature authorized them to act. 1 Leach, 514. Roscoe s Dig. Cr. 
 
 E As to the mode in which the parties injured, or any third persons should be mentioned, 
 we have already seen, that if a person is described with such certainty, that it is impossible 
 to mistake him for any other, such a description will in general suffice ; and a person may 
 
PROSECUTOR OR PARTY INJURED, HOW NAMED. 81 — 2 
 
 ever, whether real or personal, which shall belong to or be in the pos- 
 session of more than one person, whether such persons be partners in 
 trade, joint tenants, parceners, or tenants in common, it shall be suffi- 
 cient to name one of such persons, and to state such property to belong 
 to the person so named, and another or others, as the case may be ; and 
 whenever, in any indictment or information for any felony or misde- 
 meanor, it shall be necessary to mention, for any purpose whatsoever, 
 any partners, joint tenants, parceners, or tenants in common, it shall be 
 sufficient to describe them in the manner aforesaid ; and this provision 
 shall be construed to extend to all joint stock companies and trus- 
 tees, (a) 
 
 (a) See R. v. Boulton, 5 Car. & P. 537 ; E. v. Steel, Car. & M. 337. 
 
 be described by the name by which he is usually known. Hawk. b. 2, c. 25, s. 72 ; 2 Leach, 
 248 ; Russ & Ry. C. C. 510. Thus it has been adjudged, that an indictment for an assault 
 on John, parish priest of D. is sufficiently certain, and if the defendant after verdict if not 
 guilty, be indicted again, with the addition of the prosecutor's surname, he may plead his 
 former'acquittal; (Dyer, 285 a; Keilw. 25 ; Hawk b. 2, c 25, s. 72 ; Bac. Abr. Indictment, 
 G. 2,) and an indictment for larceny, laying the goods stolen to be the property of Victory 
 Baroness Tuckheim, by which appellation she had always acted and was known, was held 
 good, though her real name was Selima Vietorie. 2 Leaeh, 861. So an indictment for 
 forgery of a draft addressed to Messrs. Drummond and Company, Charing Cross, by the name 
 of Mr. Drummond, Charing Cross, without stating the names of Mr. Drummond's partners, 
 was held sufficient. 1 Leach,. 248 ; 2 East, P. C. 990. But a mere statement of the Chris- 
 tian name, without any addition to ascertain the precise individual is bad, because uncertain. 
 Hawk. b. 2, c. 25, s. 71 ; Bac. Abr. Indictment, G. 2 ; but see Starkie, 184; 6 St. Tr. 805; 
 Moor, 466.. The son of a duke or ear], who during the life of his father is called marquis or 
 lord, must not be described as really possessing those titles, but must be called by the family 
 name ; and the words " commonly called Marquis, Ac." may be added by way of addition. 
 2 Salk. 451 ; 2 Leach, 547. So it was holden before the Union, that a peer of Ireland should 
 be thus described : "James Hamilton, Esquire, Earl of Clanbrassil, in the Kingdom of Ire- 
 land," because no dignity in another country can give a higher title here than that of esquire ; 
 (2 Leach. 547,) and that in such an indictment the words " commonly called," &c. were un- 
 technical, but may be rejected as surplusage. Id. ibid. An indictment stating goods to be 
 the property of the overseers of the poor for the time being, is a sufficient description that the 
 property was in the overseers at the time of the offence. Russ. & Ry. C. C. 359 ; 3 J. B. 
 Moore, 22 ; 3 Burn. J. 24th ed. 254. An indictment for robbery committed on a woman in 
 her maiden name is good, though she marry before the finding of the indictment by the grand 
 jury. 1 Leach, 536. A bastard should be described of the name he has gained by reputa- 
 tion, describing him of his mother's name, he not having gained that name by reputation, 
 would be bad. Russ. & Ry. C. C. 358. If a party be known by one name as well as an- 
 other, he may be described of either. 2 Hale, 244, 5 ; Hawk. b. 2 c. 35, s. 3 ; Rus & Ry. C. 
 C. 510. And it seems if the sound of the name is not affected by the mis-spelling, such mis- 
 spelling will be immaterial ; and where a party was indicted for an offence upon one Whyne- 
 ard. whose real name was Winyard, but pronounced Winnyard, the indictment was held 
 good ; v Russ. & Ry. C. C. 412 ;) so, "Benedetto" for " Beneditto" is no variance ; (2 Taunt. 401,) 
 nor is " Segrave" for " Seagrave" 2 Stra. 889. But an indictment charging the prisoner 
 with having personated "M'Cann" instead of " M' Cam" is bad, (3 Stark Evid. 1578,) and 
 "Tarbart" for " Tabart," (5 Taunt 541,) " Shakpear" for " Shakespear," (10 East, 83,) and 
 "Shutliff" for "Shirtliff" (4 T. R. 611 ; for other instances, see 3 Stark. Evid. 1678,) are 
 variances. 
 
81 — 3 INDICTMENT. 
 
 And with respect to the property of counties, ridings, and 
 [*82] divisions, it is enacted, that in any indictment or information *for 
 any felony or misdemeanor committed in, upon, or with respect 
 to any bridge, court, jail, house of correction, infirmary, asylum, or 
 other building, erected or maintained in whole or in part at the expense 
 of any county, riding, or division, — or on or with respect to any goods 
 or chattels whatsoever, provided for at the expense of any county, 
 riding, or division, to be used for making, altering, or repairing any 
 bridge, or any highway at the ends thereof, or any court or other such 
 building as aforesaid, or to be used in or with any such court or other 
 building, — it shall be sufficient to state any such property, real or per- 
 sonal, to belong to the inhabitants of such county, riding, or division, 
 and it shall not be necessary to specify the names of any such inhabi- 
 tants.^) 
 
 And with respect to the property of parishes, townships, and hamlets, 
 it is enaeted, that in any indictment or information for any felony or 
 misdemeanor committed in, upon, or with respect to any workhouse or 
 poor house, or on or with respect to any goods or chattels whatsoever, 
 provided for the use of the poor of any parish or parishes, township or 
 townships, hamlet or hamlets, place or places, — or to be used in any 
 workhouse or poor house, in or belonging to the same, — or by the mas- 
 ter or mistress of such workhouse or poor house, — or by any workmen 
 or servants employed therein, — it shall be sufficient to state any such 
 property to belong to the overseers of the poor for the time being of 
 such parish or parishes, township or townships, hamlet or hamlets, place 
 or places, and it shall not be necessary to specify the names of all or 
 any of such overseers.(J) And where goods were laid to be the pro- 
 perty of " the overseers of the poor for the time being" of the parish 
 of K>., the judges held it to be sufficient, the words " for the time being 
 sufficiently importing that the goods were the property of those who 
 were overseers at the time of the theft.(c) 
 
 The guardians of the poor of a union or parish, are by stat. 5 & 6 
 "W. 4, c. 69, made a corporation, and are called " the guardians of the 
 
 poor of the union, (or of the parish of ,) in the county of ;" 
 
 and as such they may accept, take, and hold, for the benefit of such 
 union or parish, any buildings, lands, or hereditaments, goods, effects, 
 or other property, and by that name may prefer indictments ; and in 
 every such indictment relating to any such property, it shall be suffi- 
 cient to lay or state the property to be that of the guardians of the 
 union, or of the parish of "(d) 
 
 And in any indictment or information for any felony or misde- 
 
 (o) 7 G, 4, o. 64, 8. 15. (d) 5 & 6 W. 4, o. 69, s. 1 ; 5 & 6 Vict. e. 51, 
 
 (i) 1 a. 4, c. 64, s. 10. s. 16. 
 
 (c) R. v. Went, R. & Ry. 359. 
 
PROSECUTOR OR PARTT INJURED, HOW NAMED. 82 
 
 meanor committed on or with respect to any materials, tools or imple- 
 ments for making, altering or repairing any highway within any 
 parish, township, hamlet, or place, otherwise than *by trustees [*83] 
 or commissioners of any turnpike road, it shall be sufficient to 
 aver that any such things are the property of the surveyor or survey- 
 ors of the highways for the time being of such parish, township, 
 hamlet, or place, and it shall not be necessary to specify the name or 
 names of any such surveyor or surveyors.(a) 
 
 And with respect to property under turnpike trusts, it is enacted, 
 that in any indictment or information for any felony or misdemeanor 
 committed on or with respect to any house, building, gate, machine, 
 lamp, board, stone, post, fence, or other thing, erected or provided in 
 pursuance" of any Act of parliament for making any turnpike road, 
 or any of the conveniences or appurtenances thereunto respectively be- 
 longing, — or any materials, tools, or instruments provided for making, 
 altering, or repairing any such road, — it shall be sufficient to state any 
 such property to belong to the trustees or commissioners of such road, 
 and it shall not be necessary to specify the names of any such trustees 
 or commissioners.^) 
 
 And lastly, with respect to property under the commissioners of sew- 
 ers, it is enacted that in indictment or information for any felony or 
 misdemeanor committed on or with respect to any sewer or other mat- 
 ter within or under the view, cognizance or management of any com- 
 missioners of sewers, it shall be sufficient to state any such property to 
 belong to the commissioners of sewers within or under whose view, 
 cognizance, or management any such things shall be, and it shall not 
 be necessary to specify the names of any such commissioners.(c) 
 
 If in any of these cases, there should appear upon the trial to be a 
 variance between the indictment and evidence, in the name or descrip- 
 tion of any person or body politic or corporate therein alleged to be 
 the owner or owners of any property, real or personal, which shall form 
 the subject of any offence charged therein, — or in the name or descrip- 
 tion of any person, or body politic or corporate, therein alleged to be 
 injured or damaged or intended to be injured or damaged by the com- 
 mission of such offence, — or in the christian name or surname, or both 
 christian name and surname, or other description whatsoever, of any 
 person or persons whomsoever therein named or described, — the court 
 may order the indictment to be amended, if it consider the variance 
 not material to the merits of the case, and that the defendant cannot 
 be thereby prejudiced in his defence on the merits.(d)[l] 
 
 (a) 1 G. 4, c. 64, s. 16. (c) 1 G. 4, o. 64, s. 18. 
 
 (5) Id. s. IT (d) 14 & 15 Vict. o. 100, s. 1. 
 
 [1] A variance in the name will not be fatal, if the name be immaterial to constituting 
 the offence, and may be rejected as surplusage. 1 Ry. & Moo. C. C. 1 ; 2 East P. C. 693. 
 
83 INDICTMENT. 
 
 Time. 
 
 Formerly, the indictment must have stated, either expressly or by 
 •way of reference, the day, month, and year on which each material 
 
 fact stated in it, took place ; otherwise the indictment would be 
 [*84] bad.(a) In felonies, *this was universally required ;(&) as for 
 
 instance, in an indictment for murder, time must have been sta- 
 ted, not only to the assault, but also to the stroke, and to the death.(c) 
 But in misdemeanor, it was said not to be necessary to lay a time to 
 every fact, as the time first laid was deemed to be connected with all 
 the facts subsequently stated.(rf) 
 
 And if the time so stated were repugnant, uncertain, or impossible, 
 as if the indictment stated a fact to have occurred on a day subsequent 
 to the filing of the bill, or an impossible day, or a day that never hap- 
 pened, it was bad.(e) So, if it laid the offence to be committed in di- 
 vers days between such a day and such a day, it would be bad.(gr) 
 Where however the offence consisted of an omission, it 'was not neces- 
 sary to allege any time to it.(&)[l] 
 
 (a) 2 Hawk. u. 25. s. 77. (e) 2 Hawk. o. 25, s. 11. 
 
 (6) Id. ; 2 Hale, 177, 178. (g) Id. s. 82. 
 
 (c) Id. (ft) 2 Hawk. c. 25, s. 79. 
 
 (d) 2 Hale, 178. 
 
 Eoscoe's Dig. Cr. Ev. 82. If the name of a person be mistaken in an indictment, and the 
 allegation, in which the misnomer occurs be immaterial, so that it may be rejected as sur- 
 plusage, it will not vitiate the indictment. Com. v. Sunt, 4 Pick. 252 ; U. S. v. Howard, 3 
 Sumner, 12. But where there is a repugnancy or absurdity in the description of the party 
 injured, the error will be fatal, as where one is indicted for stealing the goods and chattels 
 of the said I. S., where I. S. had not been previously mention, (Hawk. b. 2, c. 25, s. 72,) al- 
 though those words have in some cases been rejected as surplusage. 1 Leach, 109. And it 
 should beobserved, that a material error in the names of the persons aggrieved, or in whom 
 property stolen ought to be laid, is much more important than a mistake in the name or ad- 
 dition of the defendant ; for the latter can only be objected to by a plea in abatement, which 
 can only delay the trial, while the former will be sufficient ground for arresting the judg- 
 ment, when the objection appears on the face of the indictment; or, if it be an error in fact, 
 will be a ground of acquittal on the trial at last, as far as respects that part of the charge, 
 (1 East P. C. 514; 2 Leach, 774; 1 Leach, 252, 286, 351, 370; 1 East P. C. 415,) though 
 the mistake only affects the higher offence, the indictment may still be valid as to the inferior 
 crime, as if a party be indicted for burglariously breaking and entering the dwelling-house 
 of Jno. Snoxalt, and stealing therein goods, the property of Ann Lock; if the name of the 
 owner of the house be mistaken, the defendant cannot be found guilty of the capital part of 
 the indictment, viz. the burglary, yet he may be convicted of the simple larceny, (Leach, 252, 
 333, n. (a). See 1 Blackf. Rep. 37 ;) so in an indictment for stealing to the amount of forty 
 shillings, in the dwelling-house of A. B., under the 12 Ann. c. 7, the defendant may be ac- 
 quitted of the capital part of the charge, when not strictly proved, and found guilty of the 
 simple larceny. Leach, 339, n. (a). 
 
 [1] Vermont.— Every sufficient indictment, must set forth the day, month, and year, and 
 in cases of burglary, the hour, when the offence was committed; and though another day 
 may bo shown in evidence on trial, yet it must be a day within the term prescribed by the 
 statute of limitations, and the day set forth in the indictment, must also be some day within 
 
TIME. 84 
 
 But now by stat. 14 & 15 Vict. c. 100, s. 24, no indictment for any 
 offence shall be holden insufficient, " for omitting to state the time at 
 
 the statute time, or the indictment will be sufficient. State v. 9 S., 1 Tyler, 295. See 
 State v. Roach, 2 Hayw. 552; Shelton v. State, 1 Stew. & Port. 208. Every material fact to 
 constitute the crime, must be laid in the indictment, with time and place. State v. Bacon, 7 
 Vermont, 219; State v. Beckwith, 1 Stewart, 318. 
 
 Illinois. — "W-here an indictment does not aver the year to be " the year of our Lord," and 
 contain the words " in the name and by the authority of the People of Illinois," it is bad. 
 The form required by the statute must be used. Whitesides v. People, 1 Breese, 4. See 
 State v. Anthony, 1 M'Cord, 235; Alien v. Com., 2 Bibb, 210. 
 
 An indictment is not vitiated by stating an offence to have been committed on the first 
 March instead of the first day of March. Simmons v. Com., 1 Rawle, 142. An indictment 
 for theft, alleged to have been committed " on the second day of March, Anno Domoni one 
 thousand eight," was held insufficient, and judgment was arrested on motion. State v. 9 S., 
 1 Tyler, 295. 
 
 An indictment oharging that the defendant was a common Sabbath-breaker and profaner 
 of the Lord's day, commonly called Sunday, and that he, on divers days, being Lord's days, 
 did keep a certain open shop, and then and there exposed to sale divers goods, &c. to ne- 
 groes and others, to the great damage of the good citizens, ,&c. was held insufficient, and 
 judgment was arrested. State v. Brown, 2 Murphey, 224. See State v. Walker, 2 Mur- 
 phey, 229. 
 
 But an indictment founded on the slave trade act of 20th April, 1818, ch. 86, sees. 2 and 
 3, for causing a vessel to sail from a port of -the United States to be employed in the slave 
 trade, it is sufficient if the indictment allege that the offence was committed after the pass-* 
 ing of the act, at some time between certain specified days, though no day in certain on which 
 it was committed, is specified. United States v. Smith, 2 Mason, 143. See Buttman's case, 
 8 Greenl. 113. 
 
 Where an indictment charged the offence to have been committed on a day which was 
 subsequent to the trial, judgment was arrested. Pennsylvania v. M'Kee, Addis. 36; Jacobs 
 v. Com., 5 Serg & R. 316 ; State v. Munger, 15 Vermont, 291. 
 
 Where an indictment alleges the day so long before that the crime appears to have been 
 bound by the statute of limitations, this is not ground for arresting judgment. People v. 
 Santwort, 9 Cowen, 655. But see State v. Beckwith, 1 Stewart, 318 ; Shelton v. State, 1 Stew. 
 & Port. 208 ; State v. Poach, 2 Hayw. 552. 
 
 Where the crime was alleged to have been committed in the year 1030, the allegation was 
 held bad. Serpentine v. State, 1 Howard, (Miss.) 260. 
 
 An indictment charging an offence on "■ particular day, and also on divers other days, is 
 good, a day certain being alleged; the residue will be surplusage. People v. Adams, It 
 Wend. 475 ; State v. May, 4 Dev. 328. 
 
 United States. — If an indictment charge the perjury to be committed at the circuit court, 
 held on the 19th day of May, and the record show the court to have been held on the 20th 
 day of May, the variance is fatal. 1 Gal. 387. See United States v. Bowman, 2 Wash. C. 0. 
 328. 
 
 See Jacobsv. Com., 5 Serg.&Rawle, 315; Stater. Johnson, 1 Walker, 392. 
 
 If two times or places have been previously mentioned, and afterwards a part only is laid 
 " then and there," the indictment is defective, because it is uncertain to which it refers. Jane 
 v. State, 3 Missouri, 61. 
 
 Under the act of North Carolina, 1811, ch. 6, an indictment for murder may contain enough 
 to induce the court to proceed to judgment, if the time and place of making the assault be 
 set forth, although they be not repeated as to the final blow. Slate v. Cherry, 2 Murphey, 7. 
 
 In this country, it may be laid down as a general rule, that the time of committing an 
 offence (except where the time enters into the nature of the offence,) may be laid on any 
 day previous to the finding of the bill, during the period within which it may be prosecuted, 
 Shelton v. State, 1 Stew. & Port. 208. 
 
 27 
 
84—1 
 
 INDICTMENT. 
 
 which the offence was committed, in any case where time is not of the 
 essence of the offence— nor for stating the time imperfectly,— nor for 
 stating the offence to have been committed on a day subsequent to 
 the finding of the indictment,— or on an impossible day,— or on a day 
 that never happened." The like defects were cured after verdict, by a 
 previous statute.(a)[2] 
 
 But although the statement of time may now be dispensed with, in 
 all cases where it is not of the essence of the offence, yet as it will be 
 more satisfactory perhaps to the grand jury that some time should be 
 stated, it will be advisable still to retain it, particularly in cases where 
 the prosecution is limited to a certain time after the commission of the 
 offence, as in treason, and in the case of murder, where, the death must 
 appear to have taken place within a year and day after the cause of it, (6) 
 and the like. The manner of stating it is, by stating that the defen- 
 dant, " on the day of , in the year of our Lord ," or " in 
 
 the year of the reign of our Sovereign Lady Yictoria, by the 
 
 grace of God, of the United Kingdom of Great Britain and Ireland, 
 Queen, defender of the faith," did so and so, stating the act done ; and 
 the facts subsequently mentioned may be stated- to have been done, 
 " then," referring to the time before specifically stated.(c) The year of 
 the reign, or the year of our Lord, is stated indifferently : in the prose- 
 cutions of regicides, in the reign of 'Charles the 2nd, every step in 
 which was guided by the advice of the first lawyers in the kingdom, 
 the year of our Lord, not the year of the reign, was stated in the in- 
 dictments ;(d) and as mistakes often occur in using the year of the reign, 
 it may be convenient in all cases to state the year of our Lord. 
 
 But whether the day and year stated be the the true date of 
 [*85] the fact, is immaterial, unless it be of the essence of the of- 
 
 (o) 1 G. 4, c. 64, s. 21. (c) 2 Hawk. o. 25, s. 78. 
 
 (6) 4 BL Com. 306. (<*) 2 Hawk. o. 25, s. 80. 
 
 Though the allegation of time is important, it is in no ease necessary to prove the precise 
 day, or even year, laid in the indictment, except where the time enters into the nature of 
 the offence. 1 Chitty's Cr. L. 223 ; 9 Cowen, 655 ; 2 Mason, 49. 
 
 [2] It will not be necessary to prove the time precisely as laid, unless that particular time 
 is material. This is the constant course of proceeding in criminal prosecutions, from the 
 highest offence to the lowest. In high treason, evidence may be given of an overt act be- 
 fore or after the day specified in the indictment; the particular day is not material in point 
 of proof, and is merely matter of form. Objections of this kind, on behalf of the prisoner, 
 have been repeatedly overruled. See Phillipps on Ev. vol. 1, p. 514. 
 
 The authorities are uniform in support of the above doctrine. 2 Hawks. P. C. b. 2, ch. 
 46 ; 2 Inst. 218 ; 3 lb. 230 ; 1 Hale's P. C. 361 ; 2 lb. 119 ; MacNally's Ev. 496-1, et seq. ; 
 The State v. Eanney, 1 Hawks. Eep. 460 ; Com. v. Harrington, 3 Pick. 26 ; 4 Starkie's Ev. 
 1568 ; Starkie's Crim. PI. 58. But where the date of a particular fact is nececsary to ascer- 
 tain with precision the offence charged, it must be proved as alleged. So where a day is 
 averred by way of describing a written instrumont. See post, p. 119. 
 
PLACE. 85 
 
 fence ; in other cases a variance between the time stated and that 
 proved, will not be matter of objection.(a) And by stat. 14 & 15 
 Vict, c, 100, s. 17, if upon the trial of an indictment for larceny, it shall 
 appear that the property alleged to have been stolen at one time, was 
 taken at different times, the prosecutor shall be at liberty to give in evi- 
 dence three takings, within the period of six months between the first 
 and the last of them.[l] 
 
 (c) Place. 
 
 It was necessary formerly to state a place by way of special venue, 
 where every material fact was stated to have occurred ;(b) and not only 
 the county must have been stated, but some parish or place within it. 
 But as by the Jury Act,(c) the jury, in criminal cases as well as civil, 
 are returned as the body of the county generally, and not de vicineto 
 
 (a) 2 Hawk. o. 25, s. 81. (c) 6 G. 4, o. 50, s. 13. 
 
 (6) 2 Hawk, c 25, s. 83. 
 
 [1] In setting forth the time when the facts occurred, as well as place, number, quantity, 
 &c. it is very usual, in criminal as well as civil proceedings, to introduce the statement under 
 what is termed a videlicet or scilicet, as, " that afterwards, to wit, on, &c. at, dec.'" the defend- 
 ant did, &c. or a fact occurred, which it is thought proper to mention. Lord Hobart, speak- 
 ing of a videlicet, says, (Hob. 172 ; 5 East, 252 ; see also, 2 Wils. 335,) " that its use is ta 
 particularize that which was before general, or to explain that which was before doubtful or 
 obscure ; that it must not be contrary to the premises, and neither increase nor diminish, 
 but that it may work a restriotion where the former words were not express and special, 
 but so indifferent that they might receive such a restriction, without apparent injury." Ee- 
 specting the use of this mode of statement, it has been said, that where the time when a 
 fact happened is immaterial, and it might as well have happened at another day there, if 
 alleged under a scilicet, it is absolutely nugatory, and therefore, not traversable ; and if it 
 be repugnant to the premises, it will not vitiate, but the scilicet itself will be rejected as 
 superfluous and void, but that where the precise time, &c. is material, and enters into the 
 substance of the description of the offence, there the time, &c. though laidunder a scilicet, 
 is conclusive and traversable, and it will be intended to be the true time, and no other,-and 
 if impossible or repugnant to the premises, it will vitiate. 1 Bla. Eep. 495 ; 2 Saund. 291, 
 note 1 ; 1 Saund. 169 ; 1 Stra. 233 ; 2 Wils. 332 ; 6 T. R. 462 ; 3 Burr. 1730 ; 4 T. E. 590; 
 4 Bsp. Eep. 152 ; 5 T. E. 71 ; 3 T. E. 68 ; 2 B. & P. 118 ; 2 Campb. 231; -5 East, 244." 
 Either the allegation must exactly correspond with the fact, or it may vary ; .if the former, 
 it will be well laid with a scilicet, which may be rejected ; and if the latter, though the 
 scilicet were omitted, evidence of a different day, quantity, or place, may be admitted. 
 Thus, in indictments for extortion, or taking a greater sum for brokerage than is allowed by 
 act of parliament, though the sum be stated without a videlicet, it is not necessary to prove 
 it with precision. 6 T. E. 265 ; 1 Chitty on Pleading, 4th ed. 276, note (g); 1 Esp. Eep. 
 285. And, on the other hand, where the true sum must be set forth, it will not relieve the 
 prosecutor from strict proof, though he allege a different sum under a scilicet. 6 T. E. 462 ; 
 4 T. E. 590 ; 1 Chitty on Pleading, 4th ed. 276, n. (g.) There are, however, authorities 
 which afford an inference that the adoption of a scilicet will, in the description of a contract, 
 excuse the party from strict proof, when, if it were omitted, it would be otherwise, 3 T, E, 
 67 : 3 M. & S. 173. 
 
85—1 INDICTMENT. 
 
 as formerly, it became no longer necessary to state the parish or place, 
 but the county merely.(a)[2] 
 
 And now, by stat. 14 & 15 Vict. c. 100, s. 23, it shall not be neces- 
 sary to state any venue in the body of any indictment, but the county, 
 city, or other jurisdiction named in the margin thereof, shall be taken 
 to be the venue for all the facts stated in the body of such indictment: 
 provided, that in cases where local description is or hereafter shall be 
 required, such local description shall be given in the body of the in- 
 dictment : and provided also, that where an indictment for an offence 
 committed in the county of any city or town corporate shall be pre- 
 ferred at the assizes of the adjoining county, such county of the city or 
 town shall be deemed the venue, and may either be stated in the mar- 
 gin of the indictment, with or without the name of the county in 
 which the offender is to be tried, or be stated in the body of the indict- 
 ment by way of venue. 
 
 (a) 1 Arch. Peel's Acts, 181, n. 
 
 [2] The general practice in the United States, is to lay the offence to be committed in the 
 county where it took place, and in many cases such a description has been held sufficient. 
 The rule, however, admits of much variation. In Massachusetts, it has been laid down, 
 that not only the town must be averred, but also the county where an offence is committed, 
 if, from the terms of the location of the town, or district, by the act of incorporation, the 
 court cannot conclude that the whole town, district, or unincorporated place, lies in one 
 county. Com. v. Springfield, 7 Mass. 9. It seems that an indictment for a capital offence, 
 in all cases, should lay both the county and town. Ibid. 13. The venue must correspond 
 with the jurisdiction of the court. People v. Barrett, 1 Johns. Rep. 66 ; State v. G. S. 1 
 Tyler, 295 ; State v. Jones, 4 Halst. 357. Where an offence is committed within the county 
 of A., and, after the commission of the offence, the county is divided, and the part of the 
 new county in which the offence was committed, is erected a new county called B., the lat- 
 ter county has jurisdiction over the offence. State v. Jones, 4 Halst. 357. 
 
 The offence must be charged in the body of the bill, to have been committed withiu the 
 district over which the court has jurisdiction ; it is not sufficient that the caption names the 
 district. Therefore, where the offence in a district court in North Carolina, was laid to have 
 been committed in Beaufort county, without adding in the district of Newborn, judgment 
 was arrested. State v. Adams, Murphy, 30. In the city of New York, the practice is to 
 charge the ward as part of the venue — thus, " in the first ward of the city of New York ;" 
 in New Orleans, to name the parish. If, however, the offence is shown to be within the 
 jurisdiction of the court, the particular place need not be proved. 2 Hale, 179, 244, 245 ; 
 4Bla. Com. 306; Hawk. b. 2, c. 25, sec. 84, c, 46, sec. 181, 182; 1 East, P. C. 125; 
 Holt, 534 
 
 But when the offence is in its nature local, and the place is stated by way of local des- 
 cription, and not as venue merely, the slightest variance between the description in the 
 indictment and the evidence will be fatal. Thus, where an indictment for arson states the 
 tenement to have been situated in the sixth ward, and the evidence shows it to have been 
 in the fifth, this will be a fatal variance. People v. Slater, 5 Hill, 401. Yet, where an 
 indictment for larceny on board ship charged the offence to have been committed in the first 
 ward of the city of New York, and it appeared to have been in the third ward, the variance 
 was held not to be material. People v. Honeyman, 3 Denio, 121. It would be different if 
 the offence took place iu a dwelling house, because that is strictly local; but a ship is not. 
 Ibid. 
 
STATEMENT OF THE OFFENCE. 85 2 
 
 The cases where local description is necessary, as above mentioned, 
 are such, as indictments for burglary, house-breaking, stealing in a dwel- 
 ling-house, and the like, where the indictment must state the parish 
 and county by way of local description ; or indictments for not repair- 
 ing highways, which must state the highway to be within the parish, 
 &c. ; and in these cases the matter of local description must be proved 
 as laid. As to a variance, however, between the statement and proof, 
 in this respect the indictmeat may now be amended, by stat. 14 & 15 
 Vict. c. 100, s.l. 
 
 (d) Statement of the offence. 
 
 Every offence must of course consist of certain facts and circumstan- 
 ces : in the case of an offence at common law, the facts, &c, are defined 
 by the rule of the common law upon the subject ; in offences against 
 statutes, by the statute creating the offence. 
 
 And the general rule of *pleading, with respect to this part of [*86] 
 the indictment, is, that all the material facts and circumstances 
 comprised in the definition of the offence, whether by a rule of the com- 
 mon law or by statute, must be stated ; if any one material fact or cir- 
 cumstance be omitted, the indictment will be bad.[l] 
 
 [1] It 13 a general rule in indictments, that the special manner of the whole fact ought to 
 set forth with such certainty, and so specifically that it may judicially appear to the court, 
 that the indebtors have gone upon sufficient premises, in order that the court may know 
 what judgment is to be pronounced upon conviction, that the defendant may clearly under- 
 stand the charge he is called upon to answer, and that posterity may know what law is to 
 be derived from the record. 2 Hale, 183, 184 ; Hawk. b. 2, c. 25,' sec. 57; Cro. Eliz. 14T, 
 201; Bac. Ab. Indictment, G. 1; Com. Dig. Indictment, G. 3; 5 T. R. 634; 5 East, 258. 
 Lambert v. The People, 9 Cowen, 518. General charges of violating public decency are in- 
 sufficient to authorize any judgment against the defendant. The specific acts and circum- 
 stances of decency must be set out. State v. Branson, 2 Bailey, 149; see Commonwealth v. 
 Maxwell, 2 Pick. 139; State v. Scribner, 2 Gill & Johns. 246; Randolph v. Commonwealth, 6 
 Serg. & Bawle, 398 ; Commonwealth v. Gillespie, 1 id. 469 ; Updegraff-v. Commonwealth, 6 id. 5 ; 
 State v. Dent, 3 Gill & Johns. 8. Where, in an indictment for a riot, the charge was, that 
 the defendants made a great noise and disturbance of the peace, it was held to be too vague 
 and uncertain, and the indictment therefore defective. Whitesides v. People, Breese, 4. 
 
 But it is not necessary to charge in an indictment anything more than is necessary to 
 make out the offence. State v. Ballard, 2 Murphey, 186. 
 
 In cases of extortion or false pretences, where the money is paid by an a"gent, it is suffi- 
 cient to allege that the money was paid by the principal. Commonwealth v. Bagley, 1 Pick. 
 219 ; Dame v. Call, 21 Pick. 515. 
 
 Where an act is charged to have been committed with a certain intent, as an assault with 
 intent to rob or to murder, it is not necessary to state the instrument or means used to effec- 
 tuate the intent. Commonwealth v. Rogers, 5 Serg. & R. 463 ; State v. Dart, 3 Gill & John. 
 8 ; see also People v. Bush, 4 Hill (N. Y.) 133. On the other hand, as observed by Mr. Jus- 
 tice Buller, it is the duty of a good pleader not to clog the record with unnecessary matter, 
 and thereby throw a greater burthen of proof on his client than the law requires ; and it is 
 still more his duty not to state things which on the face of the indictment are repugnant, 
 inconsistent, or absurd, (2 Leach, 660,) and the statement of unnecessary matter is censur- 
 
Ob INDICTMENT. 
 
 If, for instance, in larceny, the indictment were merely to state that 
 the defendant feloniously took the goods in question, without stating 
 
 able and dangerous. The indictment must charge the crime with certainty and precision 
 and must contain a complete description of such facts and circumstances as will constitute 
 the crime, a statement of a legal result is bad. As an instance of this rule, it has been 
 holden, that an indictment for escaping from prison without showing the original cause <sf 
 imprisonment, is not maintainable. Stra. 1226; Hawk. b. 2, ch. 25, sec. 57; Bac. Abr. 
 Indictment, G. I. So, an indictment for traitorously coining alchemy like to the current coin 
 of the realm, is bad, unless it show the particular kind of money the metal was intended to 
 resemble. Hawk. b. 2, c. 25, a. 57 ; Bac. Abr. Indictment. So, in the case of perjury, it is 
 necessary to set out the oath as an oath taken in a judicial proceeding and before a proper 
 person, in order to see whether it was an oath which the court had jurisdiction to administer. 
 Cro. Eliz. 131 ; Cowp. 683. State v. Ammons, 2 Murphey, 123 ; State v. Street, 1 Murphey, 
 156. And in the prosecution of a constable for not serving, it is necessary to set out the 
 mode of his election, because if he was not legally elected to the office he cannot be guilty 
 of the crime in refusing to execute Its duties ; and in an indictment for the disobedience of 
 a justice's order, it must appear that the order disobeyed was a legal one, and such previous 
 acts as were the foundation of the magistrate's authority must be recited, or at least referred 
 to. Cald. 183, when defect in this reapect cured, id. 536. And where the circumstances 
 are constituent parts of the offence, they must be set out, but where the crime exists without 
 them, they may be alleged in aggravation, but are not absolutely requisite. Cowp. 683 ; 5 
 Mod. 96. And it is a general rule that where the act is not, in itself, necessarily unlawful, 
 but becomes so by its peculiar circumstances and relations, all the matters must be set forth 
 in which its illegality consists. Hawk. b. 2, c. 25, sec. 57 ; Bac. Abr. Indictment, G. I. ; 
 Cowp. 683. Thus, in an indictment for a nuisance in the erecting an inn, some circumstances 
 must be shown which render it a nuisance, (Ibid. ; Palm. 368, 374 ; 2 Roll. Hep., 345 ;) but 
 where the act is manifestly an offence, as for keeping a house of ill-fame, this precaution is 
 needless. Hawk. b. 2, c. 25, sec. 57 ; Cowp. 683. 
 
 It is also a general rule, that all indictments ought to charge a man with a particular spe- 
 cified offence, and not with being an offender in general, for no one can know what defence 
 to make to a charge which is thus uncertain; it cannot be pleaded in bar or abatement of 
 a subsequent prosecution, nor can it appear that the facts given in evidence against a defendant 
 on such a general accusation are the aame of which the indictora have accused him, nor will 
 it judicially appear to the court what punishment is proper upon conviction. 2 Hale, 182 ; 
 Hawk. b. 2, c. 25, sec. 59 ; Com. Dig. Indictment, G. 3 ; Bac. Abr. Indictment, G. 1 ; Cro. 
 C. C. 37 ; 6 T. R. 754; 3 T. R. 100; 1 Carth. 226; 2 Bailey, 149. It is, therefore, insuffi- 
 cient to charge the defendant with having spoken false and scandalous words of the mayor 
 of a certain city. 1 Roll. Rep. 79 ; 2 Roll. Abr. 79 ; 2 Stra. 699 ; Hawk. b. 2, c. 25, sec. 
 59 ; Com. Dig. Indictment, G. 8 ; Bac. Abr. Indictment, G. 1. So, it is bad to accuse him 
 with being a common defamer, vexer, or oppressor, of many men, (2 Roll. Abr. 79; 1 Mod. 
 71; 2 Stra. 848; 2 Stra. 1246-7; 2 Hale, 182; Hawk. b. 2, c. 25, sec. 59; Com. Dig. In- 
 dictment, G. 3 ; Bac. Abr. Indictment, G. 1,) or with being a common disturber of the peace, 
 and having stirred up divers quarrels, (Ibid.) or with being a common forestaller, (Moore, 
 302 ; Hawk. b. 2, c. 25, sec. 59 ; Bac. Abr. Indictment, G. 1,) a common thief, (Ibid. ; 2 
 Roll. Abr. 59; 2 Hale, 182 ; Cro. C. C. 37,) or with being a common evil doer, (Hawk. b. 2, 
 c. 25, sec. 59 ; Bac. Abr. Indictment, G. 1,) a common champerton, (2 Hale, 182 ; Hawk. b. 
 2, c. 25, sec. 59 ; Bac. Abr. Indictment, G. 1,) or with being a common conspirator, or any 
 other such indistinct accusation, (Ibid. ;) and an indictment for a libel must set forth the libel 
 itself. 3 M. & S. 116; 8 Taunt, 169; 1 M. & S. 287. Upon the same principle, in an in- 
 dictment for obtaining money by false pretences, it will not suffice merely to state that the 
 defendant falsely pretended certain allegations, but it must also be stated by express aver- 
 ment what parts of the representation were false, for otherwise the defendant will not know 
 to what circumstances the charge of falsehood is intended to apply. 2 M. & S. 379. And 
 in cases of indictments for forgery and threatening letters, the law requires an exact copy of 
 
STATEMENT OF THE OFFENCE. 86 — 1 
 
 also that lie carried them away, the indictment would be bad; as the 
 carrying them away is a material part of the definition of larceny. So, 
 
 the instrument to be inserted in the indictment, in order that the court may see that it is the 
 subject of forgery, or threat, within the meaning of the statutes. 2 Leach, 661. In an in- 
 dictment for forging a promissory note, if the note be lost or destroyed, it is sufficient to set 
 forth the substance thereof, alleging the loss or destruction of the instrument. People v. 
 Badgley, 16 "Wend. 53; Pendleton v. Commonwealth, 4 Leigh, 694; State v. Pa/rJeer, 1 Chip. 
 298 ; State v. Potts, 4 Halst. 293 ; United States v. Britton, 2 Mason, 468 ; People v. Kingsley, 
 3 Cowen, 522 ; State v. Squires, 1 Tyler, 147. The indictment will be sustained, although 
 it does not allege that the note purported to be signed by the person whose name was 
 forged, if it set forth the purport of the note, giving the name of the maker as part of the 
 description, it is sufficient. Ibid. 
 
 An indictment for uttering a forged promissory note need not set forth the date of the note 
 nor when it is payable. Commonwealth v. Boss, 2 Mass. 373. Nor an indorsement, if there 
 is one, as it is no part ofthe note. Commonwealth v. Ward, 2 Mass. 397. 
 
 Every offence consists of certain acts done or omitted under certain circumstances; and in 
 an indictment for the offence, it is not sufficient to charge the defendant generally with 
 having committed it, as, that he murdered J. S., or stole the goods of J., or committed 
 burglary in the house of J. S., or the like ; but all the facts and circumstances constituting 
 the offence must be specifically set forth. So, the offence must appear upon the face of the 
 indictment to be a distinct substantive offence : you cannot charge a man with being a 
 common thief, a common champertor, conspirator, common malefactor, or common robber ; 
 but if he have committed a larceny, robbery, &c., the indictment must set forth every fact 
 and circumstance which is a necessary ingredient in the offence. Thus, an indictment for 
 extortion, charging that the defendant took extorsive!/ for every horse so much, and for 
 every twenty sheep so much, was holden bad, because it charged the defendant, with extor- 
 tion generally, and not upon any particular occasion. E. v. Boberts, 4 Mod. 103. So, that 
 the defendant was a calumniator, and a common and turbulent breaker of the peace, &c. was 
 holden bad, for the same reason. B. v. Taylor, 2 Str. 849, 1246; 2 Hale, 182. And the 
 same where a constable was indicted for behaving badly and negligently in the execution of 
 his office, without specifying any particular instance of negligence, &c. B. v. Witherington, 
 1 Str. 2. The only exceptions to this rule are, — 1. That a man may be indicted for being a 
 ''common barretor," without detailing the particulars of the barretry. 2. That a woman 
 may be indicted for being "a common scold," without detailing the particulars of her con- 
 duct. 3. That a person may be indicted for keeping a common gambling house, or bawdy- 
 house, without stating those circumstances, which it may be neeessory to give in evidence 
 to show that it is a house of that description. See 2 Hawk. c. 26, ss. 57, 59. 4. That in 
 an indictment for soliciting or inciting to the commission of a crime, (B. v. Higgins, 2 East, 
 5,) or for aiding and assisting in the commission of it, it is not necessary to state the particu- 
 lars of the incitement or solicitation, or of the aid or assistance. But see Beg. v. Bowell, 3 Q. 
 B. 180 ; 2 Gr, & D. 518. In all other cases, every fact or circumstance which is a necessary 
 ingredient in the offence must be set forth in the indictment. 
 
 In Pennsylvania, a count in an indictment charging that the defendant sold a lottery 
 ticket and tickets in a lottery not authorized by the laws of the commonwealth, is bad, not 
 being sufficiently certain. Com. v. Gilkspie, 7 Serg. & Eawle, 469. So an indictment charg- 
 ing a man with being a common cheat, is bad, and is not helped by an averment that by 
 divers false pretences and false tickets, he deceived and defrauded divers good citizens ofthe 
 said state. 1 Chipman, 129. An indictment for an assault with an intent to steal from the 
 pocket, without stealing the goods or money intended to be stolen, is good. Com. v. Sogers, 
 5 Serg. & Rawle, 463. In an indictment for an assault, with intent to murder, it is not 
 necessary to state the instrument, or means made use of by the assailant, to effectuate the 
 murderous intent. State v. John, alias Jack Dent, 3 Gill k, John. 8. The means of effecting 
 the criminal intent or the circumstances evincive ofthe design with which the act was done, 
 are considered to be matters of evidence to the jury to demonstrate the intent, and not 
 
INDICTMENT. 
 
 an indictment for murder, omitting the words ex malitia prcecogilata, 
 would be bad, even although, it charge the defendant with having 
 feloniously murdered the deceased, which implies malice.(a) And the 
 like in indictments upon statutes : if any one fact or circumstance, 
 which is a material ingredient in the offence, as defined by the statute,' 
 be omitted, the indictment will be bad.(6)[2] 
 
 (a) 2 Hawk. o. 25, s. 110. (&) 2 Hawk r c. 25, s. 110-112. 
 
 necessary to be incorporated in an indictment. State v. Bent, 3 Har. & John. 8. In New 
 York, in an indictment under the statute, (2 R. S. 698, sect. 3,) for attempting to commit an 
 offence, the particular manner in which the attempt was made is immaterial, and need not be 
 alleged. People v. Bush, 4 Hill's N. T. R. 133. 
 
 There are some instances when, by intendment of law, what might otherwise be a variance, 
 is made good. Thus, when in an indictment for extortion, or obtaining goods on false pre- 
 tences where the money is paid by an agent, the indictment is right in alleging it to have 
 been paid by the principal. Com. v. Bagley, 7 Pick. 219; Com. v. CaU, 21 Pick. 515. 
 Commonwealth v. Bay, 13 Pick. Rep. 362 ; James v. Commonwealth, 12 Serg. & Rawle, 
 220; Com. v. Davis, 11 Pick. 434; State v. Chitty, 1 Bailey, S. Car. Rep. 379; 6 Russel, 
 185, 186 ; State v. O'Bannon, 1 Bailey, 144. 
 
 [2] Whether the statute be public, or private, the indictment must state all the circumstan- 
 ces which constitutes the definition of the offence in the act, so as to bring the defendant 
 precisely within it : and must with certainty and precision charge him with having commit- 
 ted or omitted the acts constituting the offence, under the circumstances and with the intent 
 mentioned in the statute. 1 Hale, 517, 526, 535. The defect will not be aided by verdict ; 
 (2 Bast's Rep. 333,) nor by a conclusion contra formam statuti. 2 Hale,'l7 ; Post. 423, 424 ; 
 See 8 T. R. 536. Nor will the fullest description and legal definition of the offence be suffi- 
 cient without keeping close to the expressions of the statute; (Post. 424,) which should be 
 pursued in the precise and technical language used in the statute. Id. ib ; 2 Hawk. oh. 25, 
 sec. 110. Thus, for rape, no expressions of force' and carnal knowledge will excuse the 
 omission of the word "ravished." 2 Hawk. ch. 23, § 77. So if a statute make it criminal 
 to do an act "unlawfully and maliciously," it must be stated to have been done "unlaw- 
 fully." " Feloniously, voluntarily and maliciously " is not enough. Ry. &, Moo. C. C. 239, 
 247. But where a word not in the statute is substituted in the indictment for one that is, 
 and the word thus substituted is equivalent to the word used in the statute, or is of more 
 extensive signification than it, and includes it, the indictment will be sufficient. As, if the 
 word "knowingly " be in the statute, and the word " advisedly" substituted for it in the in- 
 dictment; (1 Bos. & P. 181,) or the word "wilfully" in the statute, and "maliciously" in 
 the indictment, (the words "advisedly" and "maliciously " not being also therein) the in- 
 dictment would be sufficient. Yet it is better to pursue strictly the words of the statute; 
 as the court, in favorem vitce, are sometimes inclined to listen to and countenance very nice 
 distinctions upon the subject. Where the subject of the indictment cannot be brought with- 
 in the meaning of the statute without the aid of extrinsic evidence, it is necessary, besides 
 charging the offence in the words of the statute, to aver such facts and circumstances as may 
 be necessary to bring the matter within the meaning of it. Matt. Dig. 200, 275 ; 2 leach, 
 664; 2 East's P. C. 928. 
 
 And if there be any exception contained in the same clause of the act which creates the 
 offence, the indictment must show, negatively, that the defendant, or the subject of the in- 
 dictment, does not come within the exception. Id. 275; 1 T. R. 141 ; 15 East, 456; 1 id. 
 643 ; Leach, 580 ; Russ. & Ry. C. C. 174, 321. But if an exception or proviso be in a sub- 
 sequent clause or statute ; (1 T. R. 320,) or although in the same section, yet if it be not in- 
 corporated with the enacting clause by any words of reference, (1 Barn. & Aid. 94,) it is in 
 
STATEMENT OE THE OFFENCE. 86 — 3 
 
 But in an indictment on a statute, it is not necessary to aver that the 
 defendant is not within the benefit of a proviso in it, even in cases 
 where the statute in its purview expressly notices the proviso, as by 
 saying that none shall do the thing prohibited, otherwise than in such 
 special cases as are mentioned in this Act,(a) or the like. JSTor shall 
 any indictment be deemed insufficient, for want of the averment of any 
 matter unnecessary to be proved,(6) or for want of the statement of the 
 value or price of any matter or thing, or the amount of damage, in- 
 jury, or spoil, in any case where the value or price, or the amount of 
 damage, injury, or spoil, is not of the essence of the offence.(c) 
 
 And the statement should be such as can be proved by the evidence 
 in the case. But by stat. 14 & 15 Vict. c. 100, s. 1, whenever on the 
 trial of any indictment for any felony or misdemeanor, there shall ap- 
 pear to be any variance between the statement in such indictment and 
 the evidence offered in proof thereof, — in the name of any county, 
 riding, division, city, borough, town corporate, parish, township, or 
 place mentioned or described in any such indictment, — or in the name 
 or description of any person or persons, or body politic or corporate, 
 therein stated or alleged to be the owner or owners of any property, 
 real or personal, which shall form the subject of any offence charged- 
 therein, — or in the name or description of any person or persons, body 
 politic or corporate, therein stated or alleged to be injured or damaged 
 by the commission of such offence, — or in the christian name or sur- 
 
 (a) 2 Hawk. c. 25, s. 113. (c) 14 & 15 Vict. c. 100, s. 24. 
 
 (b) 14 & 15 Vict. c. 100, s. 24. 
 
 that case matter of defence for the other party, and need not be negatived in the pleading. 
 Matt. Dig. 275 ; Arch. Cr. PL 48 ; 3 Chit. Burn, 456. 
 
 It is generally, but not always, sufficient, in an indictment for a misdemeanor created by 
 statute, to describe the offence in the words of the statute. The People v Taylor, 3 Denio. 
 91. In an indictment for setting on foot a lottery, contrary to the statute, it is essential to 
 specify the purpose for which the lottery was made ; that being a part of the statute descrip- 
 tion of the offence. But a general statement of the purpose for which the lottery was made 
 is not enough. Some further description must be given, where it is practicable to do so. 
 Ibid. 
 
 There is no necessity to recite any public statute on which the indictment is founded ; for 
 the judges, ex officio, take notice of all public statutes. Dyer, 155, a. ; 2 Hawk. ch. 25, § 100 ; 
 
 1 Saund. 153, n. (3.) But if it be recited with a material variance and the indictment con- 
 clude "contrary to the form of the said statute," it will be fatal; though if it conclude gene- 
 rally, as, "contrary to the form of the statute in such case made and provided," without re- 
 ferring to the recited statute, the recital may be rejected as surplusage. 2 Hawk. ch. 25, § 
 101 ; 6 T. R. 176. But the parts ol a private act on which an indictment is framed, must be 
 set out specially, as other facts, and a variance properly shown to the court will be fatal. 
 
 2 Hawk ch. 25, § 103. Neither the day on which a private statute was enacted, nor the 
 title or preamble, need in any case be stated. But if set forth it must be done with correct- 
 ness, or. if the indictment conclude contrary to the statute aforesaid, the varianee will be 
 fatal. 1 Chit. Cr. L. 277 ; Holt, 662 ; 2 Hawk. ch. 25, § 106. 
 
 28 
 
86 4 INDICTMENT. 
 
 name, or both christian name and surname, or other description what- 
 soever, of any person or persons whomsoever therein named or de- 
 scribed, — or in the name or description of any matter or thing whatso- 
 ever therein named or described, — or in the ownership of any property 
 
 named or described therein, — it shall and may be lawful for the 
 [*87] court *before which the trial shall be had, if it shall consider 
 
 such variance not material on the merits of the case, and that 
 the defendant cannot be prejudiced thereby in his defence on such 
 merits, to order such indictment to be amended, according to the proof, 
 by some officer of the court or other person, both in that part of the in- 
 dictment where such variance occurs, and in every other part of the in- 
 dictment which it may become necessary to amend, on such terms as 
 to postpone the trial, to be had before the same or another jury, as such 
 court shall think reasonable ; and after any such amendment, the trial 
 shall proceed, whenever the same shall be proceeded with, in the same 
 manner in all respects, and with the same consequences, both with re- 
 spect to the liability of witnesses to be indicted for perjury, and other- 
 wise, as if no such variance had occurred. 
 
 (e) Intent. 
 
 The intent with which an act is done, is often made a material ingre- 
 dient in the offence, as defined either by the common law or by statute ; 
 and when it is so, care must be taken to state in the indictment that 
 the offence was committed with that intent, otherwise the indictment 
 will be bad. [1] 
 
 [1] The intention of the party at the time he committed the offence is often a necessary in- 
 gredient in it ; and in such cases it is as necessary to state the intention in the indictmnt, as 
 any other of the facts and circumstances which constitute the offence. See E. v. PMlWps, 6 
 East, 454. In some cases, the law has adopted certain technical expressions to indicate the 
 intention with which an offence is committed ; and in such cases the intention must be ex- 
 pressed by the technical word prescribed, and no other. Thus, treason must be laid to have 
 been done " traitorously ;" all felonies to have been done "feloniously :" burglary is laid to 
 have been done "feloniously and burglariously," and with intent to commit a particular 
 felony; murder, "feloniously, and of his malice aforethought;" 2 Hale, 184, 181 ; forgery, 
 "feloniously ;" if made felony by statute, and with intent to defraud, &c. 
 
 Where an evil intent accompanying an act is necessary to constitute such act a crime, the 
 intent must be alleged in the indictment and proved. See The People v. Petit, 3 J. R. 611. 
 See also Fergus v. State, 6 Terger, 334; Coffee v. State, 3 Terger, 283 ; 2 Stark. Bv. (5th 
 Amer. ed.) 416 — 419. Thus where a libel has not been published, but merely sent to the 
 prosecutor, it is necessary to state in the indictment that it was sent to him with an inten- 
 tion to provoke him to a breach of the peace ; so where a letter containing a libel is sent to 
 the wife, the indictment ought to allege it was sent with intent to disturb the domestic har- 
 mony of the parties ; (2 Stark. Rep. 245. See 1 Conn. R. 266,) and in an indictment on the 
 43 Geo. 3, c. 58, where the intent laid in several counts, was to murder, to disable, or do 
 some grievous bodily harm, and the intent found by the jury was, to prevent being appre- 
 hended, it was held bad, and that the intention should be stated according to the fact : (Russ 
 and Ry. C. 0. 365 ; Roscoe's Dig. Cr, Ev. 653, 651,) so in burglary, if the entry be alleged 
 
STATEMENT MUST BE .POSITIVE. 87 
 
 But in forgery (which is defined to he the forging or uttering of cer- 
 tain instruments, " with intent to defraud any person whatsoever,") and 
 in false pretences (which is defined to be the obtaining from another 
 by a false pretence, any chattel, money, or valuable security, " with in- 
 tent to cheat or defraud any person of the same,") it is sufficient to al- 
 lege the act to have been done " with intent to defraud," without alle- 
 ging the intent to defraud any particular persons.(a) And in all cases 
 within stat. 7 & 8 Gr. 4, c. 30,(6) as to the malicious injuries, it is imma- 
 terial whether the offence shall be committed from malice conceived 
 against the owners of the property in respect of which it shall be com- 
 mitted, or otherwise, (c) 
 
 (/) Statement must be positive. 
 
 The charge must be laid positively, and not inferentially or by way 
 of recital merely .(d) Therefore a material fact laid in an indictment 
 
 (a) 14 & 15 Vict, a 100, s. 8. (c) 7 & 8 G. 4, o. 30, s. 25. 
 
 (6) Peel's Act. (d) 2 Hawk. c. 25, s. 60. 
 
 to have been made with intent to commit a specific felony, the indictment will not he sup- 
 ported by evidence of an entry with intent to commit another Mnd of felony. 1 Hale, 561; 
 
 2 East, P. C. 51 ; 2 Leach, 774, 702 ; Roscoe's Dig. Cr. Bv. 281, 282. It is usual, therefore, 
 in these cases, to lay the same Tact with different intents, as one count for a burglarious 
 entry, with intent to steal the goods of P. D. and another count for the same entry with in- 
 tent to kill and murder him. 2 East P. C. 515. If an indictment omit to state that defend- 
 ant committed the burglary with intent to steal, &c., the defendant may be convicted of the 
 burglary, if the larceny be proved, but not so if the larceny be not. Buss, k By. C. C. 445. 
 It is not necessary in an indictment for burglary to charge the prisoner with having broken 
 and entered the prosecutor's house with an intent to commit a felony. Commonwealth v. 
 Brown, 3 Bawle, 207. And if the intention is necessary to constitute the offence, it must 
 be alleged in every material part where it so constitutes it, (see Curtis v. People, Breese, 199; 
 S. C. 1 Scammon, 285,) and where an indictment for presenting a forged order to "W. L. 
 treasurer, &c. pretending it was genuine, and obtaining from W. L. under it U. 10s. 6d. after 
 charging that the prisoner, with intent to cheat, &c. the treasurer presented the order, 
 that he knowingly, &c. pretended it was a genuine order, proceeded " and so- the jurors, &c. 
 say, that the prisoner, on the day and year, &c. at, &c. did obtain the said sum of 4?. 10s. 6d." 
 but the intent to cheat and defraud W. L. was not stated in that part of the indictment, nor 
 was the obtaining charged to havebeen effected knowingly and designedly, the indictment was 
 held bad. 1 Stark. Rep. 396 ; Russ. & By. C. C. 317, S. C. "Where the act is in itself unlawful, 
 an evil intent will be presumed, and need not be averred, and if averred, is a mere formal 
 allegation which need not be proved by extrinsic evidence. 6 East, 474 ; 1 B. & P. 186, 7 ; 
 and Russ. & Ry. C. C. 207. Thus in an indictment for seditious words, it need not be shown 
 that they were uttered with intent to alienate his majesty's subjects, for it is manifest they 
 have the tendency. 2 Ld. Raym. 879. And it is not necessary to prove the whole inten- 
 tion as stated in the indictment, if it be divisible, it will suffice to prove that necessary to 
 constitute the offence ; and on an indictment charging an assault, with intent to abuse and 
 carnally know, the defendant may be convicted of an assault with an intent to abuse simply, 
 
 3 Stark. 62. So where a libel is stated to have been published with intent to defame cer- 
 tain magistrates, and also to bring the administration of justice into contempt, it is sufficient 
 to prove a publication with either of those intentions. 3 Stark. 35. 
 
87 — 1 INDICTMENT. 
 
 after a " whereas," would render the indictment bad.(a) So, the want 
 of a direct allegation of anything material in the description of the sub- 
 stance, nature, or manner of the offence, cannot be supplied by any in- 
 tendment or implication whatsoever ; and, therefore, in an indictment 
 for murder, the omission of the words " ex malitia prcecogitata," is not 
 supplied by the words, "febnice murdravit," although the latter words 
 imply them.(6)[2] And the like, in other cases. But "existem" is a 
 good introduction of an averment, when it has reference to the time of 
 committing the offence.(e) 
 
 (g) Statement must be certain. 
 
 It has already been mentioned (d) that the indictment must 
 [*88] state all the facts and *circumstances comprised in the definition 
 of the offence, by the rule of the common law or statute on 
 which the indictment is founded. And these must be stated with clear- 
 ness and certainty, otherwise the indictment will be bad. 
 
 The principal rule as to the certainty required in an indictment, may, 
 I think, be correctly laid down thus : that where the definition of an 
 offence, whether by a rule of the common law or by statute, includes 
 generic terms, (as it necessarily must,) it is not sufficient that the in- 
 dictment should charge the offence in the same generic terms as in the 
 definition, but it must state the species, — it must descend to particu- 
 lars. [1] Wherefore, an indictment for stealing "bona et catalla" of J. 
 
 (a) 2 Hawk. c. 25, s. 60. (c) 2 Hawk. o. 25, s. 61. 
 
 (S) Id. (d) Ante, p. 86. 
 
 [2] In New York, where an attorney of tbe court of common pleas was charged with ex- 
 tortion, and the indictment averred that on he obtained a judgment in favor of one 
 
 J. R v. A. C, and that he did extort and receive from the said A. C. $11 over and above 
 the fees usually paid for such services, and due in the suit aforesaid, &c, it was held that the 
 indictment was not sufficiently precise, it not specifying how much he received on his own 
 account, and how much on that of the officers and members of the court. People v. Rust, 1 
 Caines' R. 133. 
 
 The description of the offence must be technically exact, thus, an indictment, charging the 
 defendant with forging a receipt against a book account, is too indefinite. The term is not 
 known to the law; and in common parlance, may mean money, goods, labour, or whatever 
 may be brought into account. Had the charge been forging an acquittance for goods, the 
 evidence of forging the paper, described in the indictment, would, it was said by the court, 
 have been proper for the jury. The paper described was, ''Sept. 3,1816. Received of 
 James Dalton, his book account, in full, John Logan." State v. Dalton, 1 Murphy 379. So 
 in an indictment for fornication and bastardy, it is held, that the sex of the child must be 
 stated. Com. v.Pintard, 1 Browne, 59; Simmons v. Com. 1 Rawle, 142. 
 
 [1] The objects for which particularity in setting out the offence is required, are stated by 
 Mr. Starkie, (1 Starkie's C. P. 73,) as follows : 
 
 1st. In order to identify the charge, lest the grand jury should send a bill for one offence, 
 and the defendant be put upon his trial in chief for' another, without any authority. Staunf. 
 181. 
 
STATEMENT MUST BE CERTAIN. 88 
 
 S., without further describing them, by stating that goods or chattels 
 were intended, would be bad.(a)' So, where a person was indicted for 
 stealing "three eggs of the value of twopence," Tindal, C. J., held 
 the indictment to be bad, for not stating what sort of eggs they were ; 
 for all that appeared in the indictment, they might be adder's eggs or 
 other eggs, which could not be the subject of larceny. (b) But' where 
 
 (a) 2 Hawk. o. 25, s. 4 ; R. v. Powell, 1 Str. 8. (6) R. v. Cox, 1 Car. & K. 494. 
 
 2d. That the defendant's conviction or acquittal may enure to his subsequent protection, 
 should he be again questioned on the same grounds : the offence therefore should be defined 
 by such circumstances, as will, in such case, enable him to plead a previous conviction or 
 acquittal of the same offence. lb. 
 
 3d. To warrant the court in granting or refusing any particular right or indulgence, which 
 the defendant cla'ms as incident to the nature of the case. lb. 
 
 4th. To enable the defendant to prepare for his defence in particular cases, and to plead 
 in all, or if he prefer it to submit to the court, by demurrer, whether the facts alleged (sup- 
 posing them to be true) so support the conclusion in law, as to render it necessary for him 
 to make any answer to the charge. 
 
 5th. To enable the court, looking at the record^ after conviction, to decide whether the 
 facts charged are sufficient to support a conviction of the particular crime and to warrant 
 their judgment; and also, in some instances, to guide them in the infliction of a proportion- 
 ate measure of punishment upon the offender. 
 
 Matters of inducement or aggravation, as a general rule, do not require so much certainty 
 as the statement of the gist of the offence. So where the offence cannot be stated with 
 complete certainity, it is sufficient to state it with such certainty as it is capable of. As in 
 the case of a conspiracy to defraud a person of goods, it is not necessary to describe the 
 goods as in an indictment for stealing them ; stating them as " divers goods " has been 
 
 boklen sufficient. Wharton's Cr. Law, p. 81, citing R. v. , 1 Chit. Rep. 698; Rex v. 
 
 Eccles, 1 Leach, 274 ; King v. Gill, 2 Barn. & Aid. 204 ; Com. v. Judd, 2 Mass. 329 ; Com. v. 
 Collins, 3 Serg. & Rawle, 220 ; Com. v. Mifflin, 5 Watt. & Serg. 461. 
 
 Where a statute on which, an indictment is founded, enumerates the offences, or the in- 
 tent necessary to constitute such offences disjunctively, the indictment must charge them 
 conjunctively; as where the statute against unlawful shooting in Virginia, &c, affixes a 
 penalty when the act is clone with intent to maim, disfigure, disable, or kill, (in the disjunc- 
 tive,) the indictment should charge the intent conjunctively. Angelv. Com. 2 Virg. C. 231 ; 
 Jones v. State, 1 McMullen, 236 ; State v. Price, 6 Halstead, 203. So in England, under statu- 
 tes desenbing the offences disjunctively, it was held fatal to say that the defendant forged, 
 or caused to be forged, an instrument, (1 Burr. 399 ; 1 Salk. 342, 371 ; 8 Mod. 33 ; 5 Mod. 
 137,) or that he carried and conveyed, or caused to be carried and conveyed, two persons 
 having the small pox, so as to burthen a certain parish. 1 Sess. Cases, 307. 
 
 If the indictment charge the defendant with one or other of two offences, in the disjunc- 
 tive, as that he murdered, or caused to be murdered, forged, or caused to be forged. (2 Hawk, 
 c. 25, s. 58; R. v. Stacker, 1 Salk. 342, 371,) levavit vel levari causavit, (R. v. Stoughton, 2 
 Str. 900,) conveyed, or caused to be conveyed. &c, (R. v. Flint, Hardw. 370, see R. v. Morley, 
 1 Y. & J. 22,) it is bad for uncertainty ; and the same, if it charge him in two different cha- 
 racters, in the disjunctive, as quod A. existens servus sive deputatas, took, &c. Smith v. Mall, 2 
 Ro. Rep. 263. So, an indictment which may apply to either of two definite offences, and 
 does not specify which, is bad. R. v. Marshall, 1 Mood. C. C. 158. But in Vermont it was 
 held not to be a fatal objection, that the indictment charged the defendant with the larceny 
 of a horse, described as being either of a " brown or bay colour.'' State v. Gilbert, 13 Ver- 
 mont R. 647. And in Pennsylvania, an indictment laying a nuisance to be ia the "high- 
 way or road," &c, was held good. Res. v. Caldwell, 1 Dallas, 150. 
 
§8 — 1 INDICTMENT. 
 
 a man was indicted for stealing " one ham of the value of 10s., of the 
 goods and chatties of Thomas Keighway," and it was objected that the 
 description was not sufficient, as it might be the ham of some wild ani- 
 mal, which would not be the subject of larceny : the judges however 
 held it .to be sufficient, for even if it were the ham of a wild animal, 
 it might be of value, and the subject of larceny, the rule as to ani- 
 mals fercece naturae applying only to the live animal.(a) So, where a 
 man was indicted for stealing " one sheep," and it appeared that the 
 animal was between nine and twelve months old, and some of the wit- 
 nesses called it a sheep, some a lamb, but the jury said that in com- 
 mon parlance it was called a lamb ; the prisoner being convicted, the 
 judges held the conviction to be right, as the word " sheep" being gene- 
 ral, was applicable to one of that age, whatever it might in common 
 parlance be called.(6) So, where the prisoner was indicted for receiv- 
 ing "twenty-eight pounds of tin," and it appeared that what he had 
 received were two lumps of tin, called in the trade ingots ; and it was 
 then objected that they ought to have been so called in the indictment : 
 but Coleridge, J., held that they were properly described as so many 
 pounds weight of tin ; if the ingots were some article which in ordinary 
 parlance was called by a particular name of its own, it would be im- 
 proper to call it by the name of the material of which it was composed ; 
 in speaking of a piece of cloth, you could not call it so many pounds of 
 wool, in speaking of sovereigns you could not call them so many 
 ounces of gold ; but here this is the material itself, and is properly 
 
 described as so many pounds weight of tin ; so in larceny of 
 [*89] *a bar of iron, it would be properly described as so many 
 
 pounds weight of iron.(c) But where a man was indicted for 
 stealing "ten pounds in money numbered," the judges held the con- 
 viction to be wrong, because the indictment did not specify the species 
 of coin stolen.(dI)[l] So, it has been holden bad, to charge a man with 
 
 (a) R. v. Gattears, 2 Car. & K. 981 ; 19 (c) R. v. Mansfield, Car. & M. 140. 
 Law J. 13, m. (d) R. v. Fry, R. & Ey. 482 ; but see now 
 
 (6) R. v. Spicer, 1 Car. & K. 690. stat. 14 & 15 Vict. c. 100, s. 18, post, p. 91. 
 
 [1] It is frequently necessary, in the description of an offence, to state the quantity, number, 
 kind and value of the personal property which is essential to the constitution of the offence, 
 or necessary to the right understanding of the indictment. 2 Hale, 128, 3 ; Bac. Abr. In- 
 dictment, G. 3 ; Hawk. b. 2, c. 25, s. ^4; Burn. J. Indictment, IX. In this statement, cer- 
 tainty, to a common intent, as it is technically termed, is generally sufficient, which seems 
 to mean such certainty as will enable the jury to decide in case of theft, whether the chattel 
 proved to have been stolen, is the very same with that upon which the indictment is found- 
 ed, and show judicially to the court that it could have been the subject-matter of the offence 
 charged, and thus secure the defendant from any subsequent proceedings, for the same cause 
 after a conviction or acquittal. And in general, at least as great a degree of certainty is re- 
 quired in an indictment respecting goods, as in trespass, for what will be defective in the 
 latter, will be still more material in the former. 2 Hale, 183. Where the number or quan- 
 
STATEMENT MUST BE CERTAIN. 89 
 
 " speaking divers false and scandalous words " of the mayor of a town 
 without setting out the words.(a) So, where an indictment, at the 
 
 (a) 2 Hawk. c. 25, a. 59. 
 
 tity of any property should be stated, it should be done with certainty ; thus an indictment 
 for regrating, &c. stating that defendant regrated " a great quantity " of goods, &c. will be 
 bad. 1 East, 583; 1 Ld. Raym. 475. So an indictment for stealing twenty sheep and ewes 
 is bad, because the number of each sort is not stated. 2 Hale, P. C. 182. So it is bad to 
 say felonice fwratus est oves or columlas, without expressing their number, (Id. 183 ; see Ste- 
 ward v. Commonwealth, 4 Serg. & Rawle, 194; Commonwealth v. Maxwell, 2 Pick. 143,) but, 
 an indictment for murder with stones need not state the number of them. 13 Price, 112. 
 An indictment stating that defendant stole "six handkerchiefs" is supported in evidence, 
 though the handkerchiefs were in one piece, the pattern designating each handkerchief, and 
 thus being described in the trade, as so many handkerchiefs. 1 Ry. & Moo. C. C. 25. 
 
 The acceptation of the name of property governs the descriptions. Reed's case, 2 Rogers' 
 Rec. 168 ; Commonwealth v. Wentz, 1 Ashmead, 269 ; Commonwealth v. James, 1 Pick. 375. 
 
 It is sufficiently certain in an indictment to describe the property stolen as one hide of the 
 value, &c. State v. Dowell, 3 Gill & Johns 310. 
 
 So a charge of stealing a " parcel of oats " is sufficiently certain. State Y.Brown, 1 Deve- 
 reux, 137. See State v. Logan, Missouri, 377 ; State v. Toole, 2 Harr. Del. 541 ; State v. 
 Savaorn, 3 Brevard, 5. 
 
 It is not necessary to prove the whole of the property stated, if by the rejection of the 
 part not proved the offence would be complete ; and on an indictment for embezzeling one 
 pound notes, and other moneys, &o. describing them, though the evidence be that other 
 property than that described was embezzled ; yet if it be proved that one pound notes were 
 embezzled, it will suffice. RusS. & Ry. C. C. 303, and see 3 M. & S. 548. So in an indict- 
 ment for usury it is not necessary to prove the exact sum laid in the indictment ; (6 T. R. 
 265,) nor is it necessary in an indictment for extortion to prove the precise sum alleged to 
 have been extorted ; (I Ld. Raym. 149 ; 6 T. R. 267,) but if the whole property stated be 
 necessary to constitute the offence, the whole must be proved as stated. Semb. Russ. 
 & Ry. C. C. 274. The description of the property itself should be with certainty ; thus an in- 
 dictment that the defendant took and carried away such a person's goods and chattels, with- 
 out showing what in certain, as one horse, one cow, &e. is not good. 2 Hale, 182. 
 
 See Statev. Dowell, 3 Gill & John. 310 ; Missouri v. Logan, 1 Miss. 532. 
 
 An indictment, that " the defendant stole, took and carried away, sundry promissory notes 
 for the payment of money, to the value of $80, the chattels of A," is too vague. Stevjart 
 v. Commonwealth, 4 Serg. & R. 194. See State v. Lowell, 3 Gill & John, 310 ; Commonwealth 
 v. Roger, 1 Binn. 201. 
 
 And in an indictment on the 9 Geo. 1, c. 22, it was held necessary that it should state the 
 species of the cattle wounded or injured, and stating that the prisoner wounded certain cattle 
 was insufficient. Russ. & Ry. C. C. 258. So an indictment against a bankrupt for conceal- 
 ing his effects, stating part of the effects concealed to be " 100 other articles of household 
 furniture," and " a certain debt due from one A. B. to the said prisoner to the value of 20Z. 
 and upwards " was held bad. Ibid. 274. In an indictment for larceny of bank notes, it 
 seems sufficient to describe them as "bank notes " without adding for the payment of 
 money. 3 M. & S. 547, 8. 
 
 See Commonwealth v. Boyer, 1 Binn. 201 ; Commonwealth v. M 1 Lowell, 1 Browne, 360 ; 
 Salisbury v. State 6 Conn. 101 ; State v. Cassell, 2 Har. & Gill, 406 ; Commonwealth v. 
 Richards, 1 Mass. 337 : M'MiUan v. State, 5 Ohio, 269; State v. Wilson, 2 Const. Ct. Rep. 
 
 495. 
 
 Eamewood v. State, 1 How. (Miss.) 262 ; Sill v. State, 9 Terger, 357 ; M'Millan v. State, 
 5 Ohio 269 ■ People v. Wiley, 3 Hill, 194 ; People v. Eolbrook, 13 John. 90 ; Commonwealth 
 v. Messenger, 1 Binn. 274; SpanglerY. Commonwealth, 3 Binn. 533 ; Stewart v. Same, 4 Serg. 
 
89 — 1 INDICTMENT. 
 
 instance of a justice of the peace, charged a defendant that "perdiversa 
 scandalosa, minacia et contemptuosu verba abusus firit, et ipsum in execu- 
 tione officii sui prcedicti vi et armis illicite retardavit," and it was demurred 
 to as being too general ; on the part of the prosecutor, it was admitted 
 that the indictment was bad as to the words, but it was argued that it 
 was sufficiently certain as to the obstruction : the court however held 
 
 & Rawle, 194; McLaughlin v. Same, 4 Rawle, 464; State v. Root, 3 Hawks, 618 ; State v. 
 Allen, R. M. Cliarlt. 518; Wilson v. State, 1 Porter, 118.' 
 
 A charge, that the defendant set up and kept a faro bank, at which money was bet, lost 
 and won, is not sustained by proof, that bank notes were bet, lost and won. Pryorv. Com- 
 monwealth, 2 Dana, 298. See Stone's case, 3 Roger's Ree. 3. 
 
 An indictment for horse-stealing should give the animal stolen one of the descriptions men- 
 tioned in the statute, and stating it was a colt, without saying it was a horse or a mare 
 would not suffice. Russ. & Ry. C. 0. 416. 
 
 In larceny for stealing a gray horse, the property was proved to "be a gray gelding, and the 
 variance was held fatal. Hooker v. State, 4 Ohio, 350. See Ware v. Juda, 2 Carr. & Payne,, 
 351, where it was decided, that the allegation ofthe loan of ahorse is supported bythe proof, 
 that it was a mare. 
 
 In Baldwin v. People, 1 Scammon, 304, it was held that proof of stealing a mare or geld- 
 ing will sustain an indictment for stealing a horse. See Halkeenv. Commonwealth, 2 Virginia 
 Cas. 4 ; Turley v. State, 3 Humph 323 ; Eegina v. Connell, 1 Carr. & Kirwan, 190; State v. 
 Dannaverit, 3 Brevard, 9. An indictment for stealing a pig cannot be supported under an 
 act against stealing hogs. State v. ATLean, 2 Brevard, 443. 
 
 An indictment for stealing a dead animal should state that it was dead, (Russ. & Ry. C. C. 
 "797 ; 1 Carr. N. P. Rep. 128.) See Gibson v. Jenny, 15 Mass. (Rand's ed.) 206, n. (a,) and 
 cases there collected; 2 Russell, 171, 172. The description of the property, at least as to 
 part of it, must be borne out in evidence, and a variance would be fatal, stating that the 
 prisoner embezzled " one pound eleven shillings, without showing in evidence it was a one 
 pound note and eleven shillings, or any part of it in silver, would be bad. Russ & Ry. C. C. 
 335 ; and see id. 403. In an indictment on the black act 9 Geo. 1, c. 22. (repealed by 4 
 Geo. 4, c. 54,) stating that the defendant maimed certain cattle, to wit, a mare, it was held 
 necessary to prove that the cattle maimed was a mare; (Russ. & Ry. C. C. 258,) and in lar- 
 ceny for stealing a live animal, evidence cannot be given of stealing a dead one. Russ. & 
 Ry. C. C. 497 ; 1 Carr: N. P. Rep. 128. But in the case of murder, if the act of the prisoner, 
 and the means of the death proved, agree in substance with those alleged, a mere variance 
 in the description ofthe instrument used will be immaterial. Upon an indictment for hav- 
 ing in possession a die made of iron and steal, proof of a die made of either material is suffi- 
 cient. Russ. & Ry. C. 0. 282 . Where the property is of a nature to warrant that descrip- 
 tion, it should be termed " the goods or chattels " ofthe owner, and without these, or equi- 
 valent words, the indictment will be defective. Cro. Eliz. 490. See Commonwealth v. Morse, 
 14 Mass. 217; Commonwealth v . Manley, 13 Pick. 173, 174. On the same principle, it 
 should be averred to be, " of the money's " "ofthe ca'tile," &c. when those terms apply, at 
 all events, if these words be unnecessary, they might be rejected as surplusage, and it is 
 best to insert them. 1 Leach, 468. [13 Pick. 361.] We, have already considered how the 
 prosecutor's and other third person's names are to be staled, and it will be unnecessary here 
 to repeat it. Where the value is essential to constitute the offence, it must be stated ; thus 
 in the case of theft, the value must be shown, that it may appear whether the offence is 
 grand or petit larceny. 2 Hale 185 ; 1 Hale P. C. 531 ; Russ. & Ry. 0. C. 407. 
 
 So also, that it may appear, that the property stolen was of some value. Roscoe's Dig. 
 Cr. Ev. 512; Payne v. People. 6 Johns. 103; State v. Bryant, 2 Car. Law Repos. 269; State 
 v. Tillery, 1 Nott & M'Cord, 9; State v. Thomas, 2 M'Cord, 527 ; 2 Stark. Ev. (5th Amer. 
 ed.)444, a. Slate v. Wilson, 1 Porter, 110; State v. Allen, R. M. Cbarlt. 518; People v. 
 Wiley, 3 Hill, 194. 
 
STATEMENT MUST BE CERTAIN. 89 — 2 
 
 that it was bad as to that also ; for it was not sufficient to say generally 
 retardavit, but the act should have been specially set out.(a) So, where 
 a^efendant was convicted on an indictment, charging him with having 
 obtained a certain promissory note by false tokens, the court upon mo- 
 tion arrested the judgment, because the false tokens were not specified 
 in the indictment.(J) So, an indictment against a constable, charging 
 that male et negligenter se gessit in the execution of his office, was quashed 
 by the court of King's Bench upon motion, as being too general.(e) 
 So, an indictment charging a man with being a common defamer, vexer, 
 and oppressor ; or a common disturber of the peace ; or a common de-. 
 ceiver of the Queen's people, — gr the like, — would be bad.(rf) 
 
 The following exceptions to this rule as to the certainty required in 
 indictments, have recently been made by stat. 14 & 15 Vict. c. 100. 
 
 1. In an indictment for murder or manslaughter, it shall not be ne- 
 cessary to set forth the manner in Avhich, or the means by which, the 
 death of the deceased was caused ; but it shall be sufficient in every in- 
 dictment for murder, to charge that the defendant did wilfully, feloni- 
 ously, and of his malice aforethought kill and murder the deceased ; 
 and it shall be sufficient in every indictment for manslaughter, to charge 
 that the defendant did feloniously kill and slay the deceased.(e)[2] 
 
 2. In an indictment for forging, uttering, stealing, embezzling, de- 
 stroying, or concealing, or for obtaining by false pretences any instru- 
 ment, it shall be sufficient to describe such instrument by any 
 
 (a) R v. Sow, 2 Str. 699. (d) 2 Hawk. c. 25, s. 59 ; 2 Hale, 182 ; sea 
 
 (*) R. v. Munoz, 5 Str. 1127. if. v. Brian et al., 1 Ad. & El. 436, m, 
 
 (c) R. v. Winteringham, 1 Str. 2 ; see also, (e) If & 15 Viet. c. 100, s. 4. 
 R. v. Robe, 2 Str. 999. 
 
 [2] At common law in an indictment for homicide, the means by which the death was 
 effected must be stated. A mere statement that the defendant killed, &c. will not suffice ; 
 (2 Hawk. ch. 23, s. 84,) unless the whole tenor of the charge furnish an intelligible descrip- 
 tion of the, manner of committing the offence. 13 Price, 112. The kind of death must not 
 bo essentially different from that alleged. Thus, on a charge of murder by stabbing, if it 
 prove to be by drowning or poisoning, the prisoner must be acquitted. 2 Hale, 185. But 
 an indictment for murder by one description of poison, will be supported by proof of murder 
 by another description of poison. 3 Camp. 75 ; 1 East's P. C. 341. When the cause of 
 death is knocking a person down with the fist, upon any substance, the- charge should be 
 accordingly ; and not that the prisoner with a stone that he held in his hand gave and struck, 
 &c. Ry. & Moo. C. C. 113. 
 
 If the act of the prisoner and the means of death be proved in substance as alleged, the 
 violence and death being of the same kind as alleged, a mere variance in the name or kind 
 of instrument used will not be material ; (Bulst. 87,) if the instrument was capable of pro- 
 ducing the same kind of death. 9 Co. 67, a. ; Gilb. Bv. 231. So, under an indictment for 
 murder, containing » count charging the crime to have been committed by striking and 
 cutting the deceased with a hatchet, and another count charging it to have been committed 
 by striking and cutting him with an instrument to the jurors &o. unknown, it is competent 
 for the public prosecutor to prove that the killing was by the disohargo of a pistol. The 
 JPeopU v. Colt, 3 Hill 432. 
 
 29 
 
89 — 3 INDICTMENT. 
 
 [*90] name or designation by which the same may *be usually known 
 or by the purport thereof, without setting out any copy or fac- 
 simile thereof, or otherwise describing the same or the- value there- 
 of.(a)[l] 
 
 3. In an indictment for engraving or making the whole or any part 
 of any instrument, matter, or thing whatsoever, — or for using or having 
 the unlawful possession of any plate or other material upon which the 
 whole or any part of any instrument, matter, or thing whatsoever shall 
 have been engraved or made, — or for having the unlawful possession of 
 any paper upon which the whole or any part of any instrument, mat- 
 ter, or thing whatsoever shall have been made or printed, — it shall be 
 sufficient to describe such instrument, matter or thing by any name or 
 designation by which the same may be usually known, without setting 
 out any copy or fac-simile of the whole or any part of such instrument 
 matter, or thing.(6)[2] 
 
 (a) 14 & 15 Vict. o. 100, s. 5. (6) 14 & 15 Vict. o. 100, s. 6. 
 
 [1] There is no judicial decision that, in an indictment for forgery, the purport arid the 
 tenor should both be stated. Purport means the. substance of an'instrument as it appears 
 on the face of it to every eye that reads it; tenor means an exact copy of it. 2 Leach, 661. 
 The words "in manner and form following, that is to say," do not profess to give more than 
 the substance, and are proper in an indictment for perjury ; (1 Leach, 192 ; Dougl. 193, 4,) 
 but the word "aforesaid," binds the party to an exact recital. Id. ibid. Dougl. 91. In for- 
 gery the indictment may run, that the prisoner forged a paper writing, stating what it was, 
 (Russ. & Ry. C. 0. 50,) to the tenor and effect following, &c. 2 Leach, 660, 1. An exact 
 copy (2 Leach, 624; 2 East, P. C. 928, 971,) of the instrument, in words and figures, (1 
 leach. 78, 145 ; 2 East, P. C. 916,) must then be set forth to enable the court to see that it 
 is one of those instruments the false making of which the law considers as forgery ; (2 Leach, 
 624, 651, 661 ; 2 East, P. 0. 915,) and if the instrument be in a foreign language, it must be 
 translated ; (7 J. B. Moore, 1 ; 3 Brod. & Bing. 201 ; Russ. & Ry. C. C. 473, S. C.,) and the 
 same rule applies to indictments for threatening letters. 2 East, P. C. 916 ; 1 Marsh. 522 ; 
 6 East, 418. But in setting forth even the tenor of an instrument a mere variance of a letter 
 will not vitiate, provided the meaning be not altered by changing the word mis-spelt into 
 another of a different meaning ; thus, in an indictment for forging a bill of exchange the 
 tenor was " value received," the bill as produced in evidence, was " for value received," and 
 the judges upon the reserved question were of opinion that the variance was not materiah 
 because it did not change one word into another, so as to alter the meaning. 1 Leach, 145 ; 
 5 Pick. 291. And in an indictment for perjury, it was assigned for perjury that the defend- 
 ant swore he " understood and believed," instead of " understood," ancf the mistake was held 
 to be immaterial, (1 Leach, 133 ; Doug. 193, 195,) and where in setting forth a libel the 
 word "not" was inserted for "nor," the variance was held immaterial ; (2 Salk. 660 ; 3 Salk. 
 224 ; 2 Marsh. 98,) but " William" for " Wm." is a fatal variance. 3 Stark, on Evid. App 
 to p. 859. 'When the purport may be adopted instead of tenor, it is not necessary to state 
 the matter with such verbal accuracy, as the former term merely signifies substance, while the 
 latter imports an exact copy. 2 East, P. 0. 983. But if the paper forged does not on the 
 face of it appear to be that which the indictment states it purparts to.be, the proceedings 
 will be invalid. Dougl 300. 
 
 [2] See Commonwealth v. Stow, 1 Mass. 54; Commonwealths. Bailey, 1 Mass. 62 ; Common- 
 wealth v. Stevens, 1 Mass. 203 ; Commonwealth v. GiUespie, 1 Serg. & Rawle, 469 ; State v. 
 Stevens, Wright, Ohio, 13 ; State v. Farrand, 3 Ealstead, 333 ; State v. Gustin, 2 South. 749 ; 
 
STATEMENT MUST BE CERTAIN. 90 
 
 4. In all other cases, wherever it shall be necessary to make any 
 averment in any indictment as to any instrument, whether' the same 
 consist wholly or in part of writing, print, or figures, it shall be suffi- 
 cient to describe such instrument by any name or designation by which 
 the same may be usually known, or by the purport thereof, without 
 setting out any copy or fac-simile of the whole or any part there- 
 of.(a)[3] 
 
 (a) 14 & 15 Vict. o. 100, s. 7. 
 
 State v. Street, Taylor, 158 ; People v. Franklin, 3 John. Cas. 299; Commonwealth v. Searle, 
 2 Binney, 232; State v. Garro, 5 N. Hamp. 367; State v. Morlier, 1 Dey. 263; State v. 
 Garter, Cowp. N. 0. 210; State v. Wimberly, 3 M'Cord, 190; Commonwealth v. Kearns, 1 
 Virg. Ca. 109. 
 
 An indictment should not only set out the tenor of the writing but it should profess to do 
 so. State v. Fritty, 2.Hawkes, 487.-* 
 
 As to the necessity for setting out words, where words are the gist of the offence, see 
 Updegraff v. Commonwealth, 11 Serg. & R. 394; Commonwealth v. Kneeland, 20 Pick. 206; 
 State v. Bradley, 1 Hayw. 403 ; State v. Coffee, 1 N. Carolina, 272. And where an instru- 
 ment is described by name in an indictment, the instrument set out in the indictment must 
 correspond therewith. State v. Fairrand, 3 Halstead, 333. 
 
 It is a general rule, that in an indictment, for forgery, the instrument forged should be 
 particularly described ; unless there be a sufficient reason to the contrary, which must be 
 alleged. People v. Kingsley, 2 Cowen, 522. See Commonwealth v. Houghton, '8 Mass. 107 ; 
 State v. Potts, 4 Halstead, 26 ; Pendleton v. Commonwealth, 4 Leigh, 694 ; State v. Parker, 
 1 Chipman, 298 ; United States v. Britton, 2 Mason, 468 ; People y, Kingsley, 2 Cowen,-522 ; 
 State v. Justin, 2 Southard, 744 ; Bex v. Hunter, 3 Carr. & Payne, 591 ; 2 Russell, 359, u. 1. 
 317, n. 
 
 The indictment need not set forth the date of a forged note, nor wnen it is payable. 
 Commonwealth v. Boss, 2 Mass. 373; — nor the endorsement; Commonwealth v. Ward, 2 
 Mass. 397 ; Hess v. State, 5 Ohio, 8. 
 
 Commonwealth v. Sweeney, 10 Serg. & Rawle, 173 ; State v. Walsh, 2 M'Cord, 248. In an 
 indictment for publishing an obscene book or picture it is not necessary that the libel should 
 be set out out at large. Commonwealth v. Holmes, 15 Mass. 336 ; See Commonwealth v. 
 Sharpless, 2 Serg. & Rawle, 91, 
 
 People v. Kingsley, 2 Cowen, 322 ; People v. Wright, 9 Wendell, 193 ; United States v„ 
 Britton, 2 Mason, 464 ; State v. Gustin, 2 South. 749. 
 
 If descriptive words be used though unnecessarily, they must be proved ; U. States v. 
 Keene, 1 M'Lean, 441. A draft signed " Jos. Johnson," was not admitted in evidence under 
 a count stating it to have been signed by " Joseph Johnson, President." U. States v. Keene, 
 
 1 M'Lean, 441. 
 
 Where an indictment alleged that a forged certificate purported to be signed by Bowling 
 Starke,- and the signature was by B. Starke, and the true name was Boiling Starke, the 
 variance was held to be fatal. Commonwealth v. Kearns, 1 Virginia Cases, 109. See also, 
 
 2 Stark. Ev. (5 Amer. ed.) 336, n. 1; State v. Waters, 2 Const. Ct. R. 169. But see Brown, 
 v. Commonwealth, 8 Mass. 63, 64. 
 
 In an indictment for perjury it is not necessary to se-i forth more than the substanoe of the 
 oath. People v. Warner, 5 Wendell. 271, and that part in which the perjury is alleged to 
 have been committed. Campbell v. People, 8 Wendell, 636. State v. Hayward, 1 Nott. & 
 M'C. 546 ; Weathers v. State, 2 Blackf. 278 ; People v. Phelps, 5 Wendell, 9 ; State v. 
 ATKennan, Harper, 302. 
 
 ("31 When a written instrument forms a part of the gist of the offence charged, it must be 
 set out verbatim, unless where a statute declares that it shall not be necessary. When neces- 
 
90 — 1 INDICTMENT. 
 
 5. In every indictment in which it shall be necessary to make any 
 averment as to any money, or any note of the bank of England or any 
 other bank, it shall be sufficient to describe such money or bank note 
 simply as money, without specifying any particular coin or bank note ; 
 and such allegation, so far as regards the description of the property, 
 shall be sustained by proof of any amount of coin, or of any bank note 
 although the particular species of coin of which such amount was com- 
 posed, or the particular nature of the bank note shall not be proved, — 
 and, in cases of embezzlement, — and obtaining money or bank notes by 
 false pretences, — by proof that the offender embezzled or obtained any 
 piece of coin or any bank note, or any portion of the value thereof, 
 although such piece of coin or bank note may have been delivered to 
 him in order that some part of the value -thereof should be returned 
 to the party delivering the same, or to any person, and such part shall 
 have been returned accordingly.(a) 
 
 In the time laid to each material fact, also, uncertainty was formerly 
 as fatal as in the statement of the facts themselves ; and therefore an 
 indictment, charging the owner of a ferry with extorting several sums 
 of money from several persons, between such a day and such a day, 
 was holden void.(6) But this defect, as far as respects the time laid, 
 
 (a) 14 & 15 Vict. c. 100, s. 18. (5) 4 Hawk. o. 25, s. 82. 
 
 sary it i3 usually introduced by the words " according to the tenor following," or " of the 
 tenor following," or " in. the words and figures following," or " the false &c, words and matter 
 following," or other words which imply that a correct recital is intended. On the other 
 hand, when the substance only is intended to be set out, it should be introduced by such 
 words as "in substance as follows," "to the effect following," or the like. Matt. Dig. 275. 
 The word "tenor" implies that a correct copy is set out ; and a variance in such a ease would 
 be fatal; (2 East's P. C. 976,) even although more than the substance need not in that par- 
 ticular case have been set out. And the same as to "the words and figures following," &c. 
 The words " to the tenor and effect following" have been holden sufficient ; as the word effect, 
 in such a case, may be rejected as surplusage. The word " effect," however, by itself, im- 
 plies that the substance only is set out; (2 Salk. 417,) and the same, of course, of the words 
 ■"in substance as follows." 3 Barn. & Aid. 503. It seems also to have been holden that the 
 words "in manner and form following" require the substance only to be set out. Leach, 
 227 ; 1 Doug. 193. "Purport" means the substance of an instrument as it appears on the 
 face of it to every eye that reads it. "Tenor" means an exact copy of it. Matt. Dig. 276. 
 An instrument in a foreign language must be set out first in the original ; otherwise the 
 defendant may demur, move in arrest of judgment, or bring a writ of error; (6 T. R. 162,) 
 and secondly in a translation, which must be proved at the trial to be correct. 7 Moore, 1 ; 
 Russ. & Ry. C. C. 473. 
 
 In stating records as part of the offence, and not merely as inducement, the record must 
 be referred to, or the omission is bad, on demurrer. Ry. & Moo. 0. 0. 47. 
 
 When a written instrument, or parts of it, are professed to be set out verbatim, the slight- 
 est varianee between the indictment and the evidence in this respect would be fatal. A 
 mere literal variance, however, (where the omission or addition of a letter does not alter or 
 change a word so as to make it another word, (2 Salk. 661 ; 2 Camp. 229,) will not be 
 material; as "receved" for "received;" (Leach, 145 ; 2 East's P. C. 977,) "undertood" for 
 "understood ;" (Cowp. 229,) "Messes" for "Messrs." or the like. Matt. Dig. 276. 
 
STATEMENT MUST NOT BE REPUGNANT. 
 
 90—2 
 
 would now, it should seem, be cured by stat. 14 & 15 Vict. c. 100, s. 
 24(a) 
 
 *Besides uncertainty, arising from too great generality of [*91] 
 statement, an indictment may be uncertain in other respects and 
 therefore bad. As, for instance, where an indictment charged a miller, 
 in the same count,, with having received two several parcels of barley, 
 of four bushels each to be ground at his mill, and that he delivered three 
 bushels of oat and barley meal other and different from the produce of 
 the said four bushels : the indictment was holden bad for uncertaintj r , 
 as not showing as to which of the parcels of barley the offence was 
 committed.(6) 
 
 A charge also in the alternative, charging a defendant with having 
 done so or so, — as that he murdered or caused to be murdered, — is bad 
 for uncertainty.(c)[l] 
 
 (h) Statement must not be repugnant 
 
 One material part of an indictment, must not be repugnant to an- 
 other, otherwise the indictment will be bad.(o') Therefore ; if an indict- 
 ment charge a man with forging an instrument by which A. was bound 
 to B., it is bad, for A. could not be bound by the instrument if it were 
 forged.(e) So, if an indictment for forcible entry charge that A. dis- 
 seised B., and it appear on the face of the indictment that B. was not 
 seised in fee : it is bad.(<7)[2] So, an indictment for selling iron by 
 false weights and measures, has been holden bad for repugnancy, for it 
 was absurd to say that it could be sold both by weight and measure 
 at the same time.(A) But where an indictment charged Francis Mor- 
 ris as a receiver, " he the said Thomas Morris, well knowing," &c, it 
 was holden that the words, "the said Thomas Morris,'' might be re- 
 jected as surplusage, and so the indictment be good.(i) So where an 
 indictment charged the defendant that he on one Henry Bennett did 
 
 (a) Ante, p. 85. 
 
 (6) B. v. ITaynes, 4 M. & S. 214. 
 
 (c) 2 Hawk. c. 25. s. 58. 
 
 (d) 2 Hawk. u . 25, s. 62. 
 
 (e) 2 Hawk. o. 25, s. 62. 
 
 (?) «• 
 
 (h) Td.; 2 Ro. Abr. 18. 
 
 (i) R v. Morris, 1 teach, 103. 
 
 [1] So to say that the defendant forged or caused to be forged an instrument ; that he erected 
 or caused to be erected a nuisance ; that he carried and conveyed or caused to be carried 
 and conveyed two persons having the small pox, so as to burthen the town, are not suffi- 
 ciently positive. But in an information for stealing a horse, it is no ground for arrasting 
 judgment that the horse is described as of a " brown or bay color," for they are the same. 
 State v. Gilbert, 13 Vermont Eep. 647. 
 
 [21 The same error has been held to exist where an indictment charged an offence to 
 have been committed in November, 1801, and in the 25th year of American Independence, 
 and where the crime was laid to have been committed A D. 1830. Serpentine v. State, 1 
 How. Miss. Rep. 260. 
 
91 INDICTMENT. 
 
 make an assault, "and him the said William Bennett did beat," &c., 
 this was holden good in arrest of judgment, for the same reason.(a)[3] 
 
 (i) Technical words. 
 
 In some cases certain technical words are required, such as. "treason- 
 ably and against his allegiance," in indictments for treason,(6) — " mur- 
 der," and " of his malice aforethought," in an indictment for murder,(c) 
 — " ravish," in an indictment for rape,(d)— " burglariously," in an in- 
 dictment for burglary,— " feloniously," in an indictment for felony, (e) 
 and the like : in these cases, no other words, nor any periphrasis what- 
 ever, would be deemed equivalent to them, and an indictment omitting 
 them would be bad. So, an indictment upon statutes, where the defi- 
 nition of the offence contained in them, includes such adverbs as " un- 
 lawfully," "wilfully," "maliciously," &c, the offence must be 
 [*92] charged *to have been committed " unlawfully," " wilfully," or 
 " maliciously," accordingly, otherwise the indictment will be 
 bad. The word " unlawfully" is not essentially necessary in indict- 
 ments at common l&w,(g) although very generally used. The words, 
 " with force and arms," were formerly always used in all indictments 
 for offences with force, and indeed for all felonies, for a felony was 
 deemed to include a trespass ; and the words " as appears by the record" 
 
 (a) R. v. Crispin, 12 Shaw's J. P. 323. (d) 2 Hawk. o. 25, s. 56. 
 
 (i) 2 Hawk. c. 25, s. 55 ; 4 Bl. Com. 307. (e) Id. s. 55 ; 2 Hale, 184. 
 
 (c) Id. s. 60 ; 4 Bl. Com. 307. (g) Id. a. 96. 
 
 [3] A variance in the name will not be fatal, if the name be immaterial to constituting 
 the offence, and may be rejected as surplusage. 1 Ry. & Moo. C. C. 1 ; 2 East, P. C. 593 ; 
 Roscoe's Dig. Cr. Ev. 82. But where there is a repugnancy or absurdity in the description 
 of the party injured, the error will be fatal, as where one is indicted for stealing the goods 
 and chattels of the said I. S., where I. S. had not been previously mentioned, (Hawk. b. 2, 
 ch. 25, sec. 72,) although those words have in some cases been rejected as surplusage. 
 1 Leach, 109. And it should be observed, that a material error in the names of the persons 
 aggrieved, or in whom property stolen ought to be laid, is much more important than a 
 mistake in the name or addition of the defendant ; for the latter can only be objected by a 
 plea in abatement, which can only delay the trial, while the former will be sufficient ground 
 for arresting the judgment, when the objection appears on the face of the indictment; or, if 
 it be an error in fact, will be a ground of acquittal on the trial at least, as far as respects 
 that part of the charge, (1 East P. C. 514; 2 Leach, 774; 1 Leach, 252, 286, 351, 390; 1 
 East P. C. 415,) though the mistake only affects the higher offence, the indictment may still 
 be valid as to the inferior crime, as if a party be indicted for burglariously breaking arid 
 entering the dwelling house of Jno. Snoxalt, and stealing therein goods, the property of Ann 
 Lock ; if the name of the owner of the house be mistaken, the defendant cannot be found 
 guilty of the capital part of the indictment, viz. the burglary, yet he maybe convicted of the 
 simple larceny, (Leach, 252, 339, n. (a); see 1 Blackford B. 37;) so in an indictment for 
 stealing to the amount of forty shillings in the dwelling house of A. B., under the 12 Ann. 
 ch. 7, the defendant may be acquitted of the capital part of the charge, when not strictly 
 proved, and found guilty of the simple larceny. Leach, 339, n. (a.) 
 
TECHNICAL WORDS. 92 
 
 were always used, where a matter of record was pleaded : but now, by 
 stat. 14 & 15 Vict. c. 100, s. 24, no indictment for any offence stall be 
 held insufficient for the omission of the words, " as appears by the 
 record," or of the words, "with force and arms."[l] 
 
 fl] The words "with force and arms,'" anciently "vi et armis," where, by the common law, 
 necessary in indictments for offences which amount to an actual disturbance of the peace 
 or consist, in any way, of acts of violence, (Cro. Jac. 472, 473 ; 2 Hale, 187 ; Hawk. b. 2, 
 ch. 25, sec. 90 ; Bac. Abr. Indictment, G. 6 ; Cro. C. C. 42 ;) but it seems to be the better 
 opinion, that they were never necessary where the offence consisted of a cheat, or non- 
 feasance, or a mere consequential injury. 7 T. R. 4, 5 ; 1 Keb. 652 ; Poph. 206 ; Hawk. b. 
 2, ch. 25, sec. 90; Bac. Abr. Indictment, G-. 1. Formerly, they were followed by the words 
 "videlicet baculis culteUis arcubus et sagittis.'' Hawk. b. 2, ch. 25, sec. 90. But the statute 
 27 Hen. 8, ch. 8, (this statute is in force in Pennsylvania. Roberts' Dig. 324. In New 
 Hampshire, State v. Kean, 10 N. Hamp. 347. In Vermont, State v. Munger, 15 Vermont, 
 290. In Tennesee, Tipton v. State, 2 Yerger, 542. And in Louisiana, Territory v. Mr.Far- 
 lane, 1 Martin, 224,) reciting, that several indictments had been deemed void for want of 
 these words, when in fact no such weapons had been employed, enacted, " that the words, vi et 
 armis videlicet cum baculis arcubus et culteUis sagittis, " shall not of necessity be pat in any indict- 
 ment or inquisition. Upon the construction of this statute, there seems to have been enter- 
 tained very great doubts, whether, the whole of the terms were intended to be abolished in 
 all indictments, or whether the words following the videlicet, were alone excluded. Many 
 indictments for trespasses and other wrongs accompanied with actual violence, have been 
 deemed insufficient for want of the words " with force and arms," (2 Lev. 221 ; 1 Sid. 140 ; 
 1 Bulst. 205; 1 Keb. 101 ; 2 Keb. 154;) and, on the other hand, the court has frequently 
 refused to quash the proceedings where they have been omitted,.(l Lev. 126 ; 2 Bulst. 208 ; 
 3 P. Wms. 464, 498 ;) and the last seems to be the better opinion, for otherwise the terms 
 of the statute appear to be destitute of meaning. It seems to be generally agreed, that 
 where there are any other words implying force, as in an indictment for a rescue, the word 
 "rescued," the omission of vi et drmis, is sufficiently supplied. Cro. Jac. 345; 2 Bulst. v 
 208; 3 P. Wms. 464; Hawk. b. 2, ch. 25, sec. 90, n. 16; Bac. Abr. Indictment, G. 1. 
 But it is at all times, safe and proper to insert them, whenever the offence is attended with 
 an actual or constructive force, or affects the interests of the public. Cro. Car. 3, 7, 8 ; 
 Hawk. b. 2, c. 25, sec. 90 ; Bac. Abr. Indictment, G. 1 ; Burn. J. Indictment, IX As to 
 words "force and arms," see 4 Burr. 2557-8, et alii. 
 
 The term "unlawfully,'' which is frequently used in the description of the offence, is un- 
 necessary, wherever the crime existed at common law, and is manifestly illegal. Hawk. 
 b. 2, cb. 25, sec. 96; Bac. Abr. Indictment, G. 1; Cro. C. C. 38. See Jerry v. State, 1 
 Blackf. 396; State v. Bray, 1 Missouri, 180; Curtis v. People, Breese, 197-. So, it has been 
 adjudged, that it need not be used in an indictment for a riot, because the illegality is suffi- 
 ciently apparent, without being expressly averred. 2 Rol. Abr. 82 ; Hawk. b. 2, ch. 25, 
 sec. 96 ; Bac. Abr. Indictment, G. 1 ; Cro. C. C. 43. But if a statute, in describing an 
 offence which it creates, uses the word, the indictment founded on the act will be bad, if it be 
 omitted, (Hawk. b. 2, ch. 25, sec. 96 ; Bac. Abr. Indictment, G. 1 ; Cro. C. C. 43 ; sed quaere, 
 see 2 Marsh. 362 ;] and it is, in general, best to insert it, especially as it precludes all legal 
 cause of excuse for the crime. See 4 M. & S. 274. 
 
 The word "knowingly,'" or "well knowing," will supply the place of a positive averment, 
 that the defendant knew the facts subsequently stated. 2 Stra. 904 ; Com. Dig. Indictment, 
 G. 6 ; see Russ. & Ry. C. C. 317 ; 1 Stark. C. N. P. 390. It is absolutely necessary to consti- 
 tute guilt, as in indictments for uttering forged tokens, or other attempts to defraud, or for 
 receiving stolen goods, and offences of a similar description. An indictment at common law 
 for aiding a prisoner's escape, should state that the party knew of his offence. Rex v. Young. 
 1 Russel, 391 ; see United States v. Kean, 5 Mason, 453. 
 
 An indictment for stealing bank bills in Ohio, must aver that the defendant knew the bills 
 
92 — 1 INDICTMENT. 
 
 4. Conclusion of the Indictment. 
 
 (a) Against the peace. 
 
 All indictments, whether for offences at common law or by statute, 
 conclude " against the peace of our Lady the Queen, her crown and 
 
 to be bank bills, or the indictment is defective. Gatewood v. State, 4 Ohio, 386 ; see State 
 v. Wilson, 2 Const. Ct. 135; Anderson v. State, 7 Ohio, 250; Birney v. State, 8 Ohio, 230; 
 Rich v. State 8 Ohio, 111; State v. Gardner, 2 Missouri, 23. 
 
 But if notice or knowledge be unnecessarily stated, the allegation, may be rejected as 
 surplusage.. 2 East, 452. 
 
 There are certain terms which are usually inserted in the part of the indictment we are 
 now examining, which mark out the color of the offence with precision, and which are abso- 
 lutely necessary to determine the judgment. 3 Inst. 15; Carth. 319: 2 Hale, 172, 184; 4 
 Bla. Com. 307 ; Hawk. b. 2, oh. 25, sec. 55 ; 1 East P. C. 115 ; Bac. Abr. Indictment, G. 1 ; 
 Com.. Dig. Indictment, G. 6 : Cro. C. C. 37. In an indictment against A. S as one of the 
 wardens of the city of Portland, for receiving at a general election, the vote of a person, 
 whose name was not borne on the' list of voters, it was held to be necessary to allege that 
 the act so done and committed was ''unreasonable, corrupt, or wilfully oppressive." State v. 
 Small, 1 Fairfield, 109. 
 
 Thus, every indictment for treason must contain the word "traitorously," (Cro. 37 ;) every 
 indictment for burglary, " burglariously,'" (4 Co. 39, 40; 5 Co. 121 ; Cro. Eliz. 920; 2 Hale, 
 172, 184 ; Bac. Abr. Indictment, G. 1 ; Com. Dig Indictment, G. 6; Cro. C. C. 37; Burn, 
 J. Indictment, IX. ;) and "feloniously " must- be introduced in every indictment for felony. 
 2 Hale, 171, 184; Cro. Eliz. 193; 5 Co. 121 ; Hawk. b. 2, c. 26, sec. 55; Com. Dig. G. 6i 
 Bac. Abr. Indictment, G. 1 ; Cro. C. C. 37 ; Burn, J. Indictment, IX. ; Williams, J. Indict- 
 ment, IT. ; Russ. & Ry. C. C. 62. See Stuart v. Commonwealth, 12 Serg. & R. 177 ; Cartis 
 v. People, Breese, 199. 
 
 And these words are so essential, that if the word feloniously be omitted in an indictment 
 for stealing a horse, it will be only a trespass, (2 Hale, 184; Bac. Abr. Indictment, G. 1 ; 
 Cro. C. C. 37,) or a misdemeanor of which the defendant may be convicted under such in- 
 dictment. Cald. 400, 1. 
 
 The crime of murder, which is next in point of degree, has, as well as treason, terms 
 peculiarly appropriate to its own description. 
 
 Pennsylvania. — In an indictment for murder, it is not necessary so to describe the 
 offence, as to show whether it be murder of the first or second degree; nor is it necessary 
 that the indictment should conclude against the form of the act of assembly. 6 Binney, 
 179; 1 Russell, 466-471. 
 
 Like other felonies, the word "feloniously" must be inserted. Cro. Eliz. 193. In an in- 
 dictment for assault and battery, with intent to kill, it is indispensably necessary that the of- 
 fence should be alleged to be unlaviful and felonious. Curtis v. People, 1 Breese, (111.) 199 ; 
 Curtis v. People, 1 i-cammon, 120. 
 
 As a conclusion from the facts averred, it must be stated, that so the defendant feloniously 
 of his malice aforethought did kill and murder tho deceased ; for without the terms "malice 
 aforethought," and the artificial phrase murder, the indictment will be taken to charge man- 
 slaughter only. Post. 424; Telv. 205; 2 Hale, 184; Cro. Jac. 283; 1 Bulst. 144; Dyer, 
 69, a, 261 ; Cro. Eliz. 920 ; Kel. 124; 1 Hale, 450, 466 ; 2 Hale, 187 ; Hawk. b. 2, eh. 25, 
 sec. 55; Com. Dig. Indictment, G. 6; Bac. Abr. Indictment, G. 1; 4 Bla. Com. 307; 1 
 East. P. C. 345 ; Cro. C. C. 37 ; Burn, J. Indictment, IX ; Williams, J. Indictment, IT. Where 
 the death arises from any wounding, beating, or bruising, it' is said that the word " struck " 
 is essential. 1 Bulst. 184; 5 Co. 122; 3 Mod. 202; Cro. Jac. 655; Palm. 282; 2 Hale, 
 184, 186, 187 ; Hawk. b. 2, ch. 23, sec. 82. 
 
 In Pennsylvania, in an indictment charging the defendant with a certain stone, which ho 
 
AGAINST THE PEACE. 92—2 
 
 dignity."(a) The words "against the peace of our Lady the Queen," 
 are in all cases deemed necessary ; the words " her crown and dignity " 
 not.(6) 
 
 (a) 2 Hawk. c. 25, s. 92. (J) 2 Hawk. o. 25, s. 94. 
 
 held in his right hand, in and upon the right side of the head of the deceased, feloniously, 
 &e. did cast and throw, and that the defendant with the stone aforesaid, the deceased in and 
 upon the right side of the head, feloniously, &c. did strike, sufficiently charges that the de- 
 fendant threw the stone and struck the deceased. White v. Commonwealth, 6 Bin. 179. 
 
 And the wound or bruise must be alleged to have been mortal; nor is the latter word 
 supplied by the allegation, which is at all times necessary that the deceased died in conse- 
 quence of the violence inflicted upon him. 1 Leacb, 96 ; Kel. 125 ; 2 Hale, 186 ; Hawk. b. 
 2, ch. 23, sec. 82 ; Cro. C. 0. 38 ; 3 M'Cord, 190. 
 
 In Pennsylvania, the omission of technical epithets in an indictment for murder is, fatal. 
 2 Dall. 228. 
 
 The allegation that the person murdered was, at the time, in the king's peace, is sufficient 
 to show that he was a British subject. Russ. & By. C. C. 294. 
 
 So also in indictment for rapes, the words "feloniously ravished" and "carnall/y knew" are 
 necessary : nor is the want of the former supplied by the insertion of the latter. 1 Hale, 
 628; 2 Hale, 184; Co. Lit. 124, n. p. ; 2 Inst. 180; 1 East, P. C. 44? ; Com. Dig. Indict- 
 ment, G. 1 ; Bac. Abr. Indictment, G. 1 ; Hawk. b. 2, c 25, sec. 56 ; Cro. C. C. 37. But 
 in an indictment for an assault and battery with an intent to commit a rape, the omission of 
 the word feloniously does not vitiate. Stouty. Commonwealth, 11 Serg. & Rawle, 177. 
 
 And though some have inclined to think that the words " carnally knew " are not abso- 
 lutely necessary, it would certainly be very unsafe to omit them. 1 East P. C. 448. But it 
 is not necessary to allege that the offence was committed forcibly and against the will of the 
 woman. It is sufficient, if it charge that the defendant feloniously did ravish and carnally did 
 know her. Barman v. Commonwealth, 13 Serg. & Rawle, 69 ; but see State v. Jim, 1 De- 
 "vereux, 142. 
 
 And in an indictment for an unnatural crime, the word of the statutes taking away clergy, 
 must be followed. Fost. 424; Co. Ent. 351, b. ; 3 Inst. 59; Hawk. b. 1, ch. 4, sec. 2 ; 5 
 Eliz. ch. 17 ; 3 & 4 W. & M. ch. 9, sec. 2. 
 
 In Maryland, it is held necessary in such case to prove the carnaliter cognovit in the in- 
 dictment. Davis v. State, 3 Harr. & Johns. 154. 
 
 So also in all indictments of mayhem, the words "feloniously did maim," must, of neces- 
 sity, be inserted. 3 Inst. 118; Hawk. b. 2, ch. 23, sec. 17, 18, 77 ; Hawk. b. 2, ch. 25, sec. 
 55 ; 7 Mass. Rep. 247. 
 
 In Massachusetts, an indictment for administering a potion, with intent to procure an 
 abortion, must contain an allegation that an abortion ensued, and that the woman was quick 
 with child. 9 Mass. 387. 
 
 The essential words in an indictment for burglary, are "fehniouskj and burglariously broke 
 and entered the dwelling house in the night time," about a named hour. 4 Co. 39, b. ; 1 Hale, 
 549, 550; 2 Hale, 184; Hawk. b. 2, ch. 25, sec. 55; Com. Dig. Indictment, G. 6; Bac. 
 Abr. Indictment, G. 1 ; Cro. C. C. 37. And besides these requisites, the felony committed 
 or intended, must be set forth in technical language, (1 Hale, 550 ; 3 Rawle, 207 ;) so in an 
 indictment for simple larceny, the words "feloniously took and carried away the goods," or 
 " took and led away the cattle," are necessary, (1 Hale, 504; 2 Hale, 184; Bac. Abr. In- 
 dictment, G. 1 ; Cro. C. C. 37 ;) and in case of robbery from the person, the words "felo- 
 niously and against the will," must be introduced ; and it is usual to aver & putting in fear, 
 though this does not seem to be requisite. 3 Inst. 68 ; Post. 128 ; 1 Hale, 535 ; 2 East P. 
 C. 283. And the word " violently " was formerly regarded as essential, but has been holden 
 not to be necessary. 2 East P. C. 784; 3 Russ. 89-91. And feloniously, and piratically, 
 are both necessary in an indictment for piracy. Hawk. b. 1, ch. 37, sec. 15 ; 3 Inst. 112. 
 
 30 
 
92 — 3 INDICTMENT. 
 
 If the offence be committed in the reign of one King, and the of- 
 fender be indicted in the reign of his successor, the indictment should 
 conclude, against the peace of the late King;(a) or if commenced in the 
 reign of one King, and continued into the reign of another, it seems 
 that a conclusion, against the peace of both Kings, would be good.(6) 
 By stat. 14 & 15 Vict. c. 100, s. 24, however, no indictment shall be 
 held insufficient, for the omissions of the words "against the peace." 
 And the like omission was before cured by verdict, or judgment by 
 confessions, &c, by stat. 7 G. 4, c. 64, s. 20 ; which Act was holden to 
 apply to the case of an indictment, in the reign of William the fourth, 
 for an offence committed in the reign of George the fourth, concluding 
 against the peace of our lord the King, &c, instead of our late lord the 
 King.(c)[2] 
 
 (a) R. v. Lookup, 3 Burr. 1901. (c) R. v. Chalmers, Ry. & M. 352 ; and 
 
 (6) 2 Hawk. o. 25, s. 93. see R. V. Scott, R. & Ry. 415. 
 
 There are also some misdemeanors which require to be described with particular language. 
 If an indictment under the statute of Ohio, against having counterfeit bank notes in possession 
 and making Bale of them,_ allege such acts to be felonious, (the statute using-the term misde- 
 meanor,) it is not error, and the term "felonious" may be rejected as surplusage. Jless v. 
 State, 5 Ohio, 12; see Commonwealth v. Squire, 1 Metcalf, 258. 
 
 Thus, common barreiors and scolds must be indicted as such. 6 Mod. 11, 178, 213, 239 ; 
 Com. Dig. Indictment, G. 6. The word "riot" must be inserted in all indictments for riot- 
 ing, and maintained in all indictments for maintenance, (1 Wils. 325,) and "with strong hand'' 
 in an indictment for a forcible entry. 8 T. R. 357 ; 2 Russ. 289. 
 
 The words " wickedly, maliciously, of his own wicked and corrupt mind, being a person of evil 
 disposition, &c." are in general mere matter of aggravation, and not material. 6 East, 472. 
 But where an act must bo done with a particular intent, in order to render it criminal, an 
 evil intention must be averred upon the record, (6 East, 473; 2 East P.O. 1031: Andr. 162;) 
 and we have already seen what would be a variance in the statement of the intent, and 
 when it is advisable to insert counts to meet the case in this respect. 
 
 [2] In the United States Courts, a conclusion " contrary to the true intent and meaning 
 of the act of Congress, in such case made and provided," has been held sufficient. U. S. v. 
 La Coste, 2 Mason, 129 ; U. S. v. Smith, 2 Mason, 143. The Constitution of Vermont 
 provides that all indictments shall conclude with these words, " against the peace and dig- 
 nity of the state." Const, part 2, sec. 32. In New Hampshire, the constitution requires all 
 indictments to terminate " against the peace and dignity of the state; and it has been held, 
 that it is sufficiently complied with by an indictment concluding, "agaiust the peace and 
 dignity of our said State." State v. Kean, 10 New Hamp. Rep. 347. The Constitution of 
 Pennsylvania provides that all prosecutions shall bo carried on in the name and by the 
 authority of the Commonwealth of Pennsylvania, and conclude against the peace and dig- 
 nity of the same. Const, art. 5, sec. 11 ; see Com. v. Rogers, 5 Serg. & Rawle, 463. 
 
 In South Carolina, an indictment stating an offence against the state, and concluding with 
 the words, against the peace and dignity of the same, is not faulty, but good within the 
 terms of the constitution of 1790. State v. Washington, 1 Bay, 120. Where an indictment 
 commenced " South Carolina," and not the " State of South Carolina," and concluded against 
 the peace and dignity of the said state and not against the peace and dignity of tho same, 
 the court held the termination good. State v. Anthony, 1 M'Cord, 285. By the constitution 
 of Arkansas, indictmonts must conclude, ''against the peace and dignity of the State of 
 Arkansas-," but the interpolation upon this form of the words, "people of the," will not 
 vitiate. •' The form adopted by tho constitution," it was said, " is merely declaratory, and in 
 
AGAINST THE FORM OF THE STATUTE. 92 
 
 In misdemeanors to the person or property of an individual, it is 
 very usual to conclude " To the great damage of the said J. S. to the evil 
 example of all others in the like case offending, and against the peace " 
 &c. ; but the above words in italics are unnecessary. [3] 
 
 {b) Against the form of the statute. 
 
 Indictments for offences against a statute or statutes, conclude " against 
 the form of the statute [or statutes] in such case made and provided," and 
 against the peace of our Lady the Queen, her crown and dignity. 
 This is material to be observed ; for where the contra *formam [*93] 
 statuti is omitted, if the offence be one punishable by statute 
 only, no judgment can be given, although otherwise if the offence be 
 also punishable at common law.(a) As the conclusion contra formam 
 statuti to an indictment for an offence at common law, therefore, does not 
 affect the validity of the indictment, I understand that the judges about 
 fifteen years since, intimated to the clerks of indictments on the differ- 
 ent circuits, that it would be advisable to conclude their indictments, 
 generally, as for offences against a statute. Formerly nice distinctions 
 were taken, as to cases where the conclusion should be contra formam 
 statuti, and where statutorum ; but this is now immaterial ; for by stat. 
 14 & 15 Vict. c. 100, s. 24, no indictment shall be deemed insufficient, 
 for the insertion of the words " against the form of the statute" in- 
 stead of " against the form of the statutes," or vice versa.[l~] 
 
 (a) 2 Hawk. c. 25, s. 116. 
 
 affirmance of an old principle, not the creation of a new one." Anderson v. State, 5 Pike, 
 445. In South Carolina, an indictment was held good, though it concluded against " the 
 peace and dignity of this state," instead of concluding "against the peace and dignity of the 
 same state." State v. Yancey, 1 Tr. Con. Rep. 237. In Mississippi, an indictment com- 
 mencing with the words "the State of Mississippi," and concluding, "against the peace and 
 dignity of the same," is sufficient. State v. Johnson, 1 Walker, 392. Whart. Cr. Law. 
 
 [3] Indictmei.ts for nuisances usually conclude " to the great damage and common nuisance 
 of all the people of said state as well as against the peace, Ac. But this conclusion "to the 
 common nuisance" does not seem to be essential. Matt. Dig. Cr. Law, 278. The words 
 "against the peace of the people," seem to he essential in all cases, excepting in indictments 
 for non-feasance and even in these, they are uniformly used. 
 
 [1] In a common law indictment the words contra-forman statuti may be rejected as sur- 
 plusage. State v. Buelcman, 8 New. Hamp. Rep. 203 ; Knowks v. State, 3 Day, 103 ; Com. 
 v. Gregory, 2 Dana, 417; State v. Cruixer, 3 Harrison, 108; Southworth v. State, 9 Conn. 
 560; Com. v. Hoxey, 16 Mass. 385 ; Pennsyl. v. Bell, Add. 171 ; Resp. v. Newell, 3 Teates, 
 407 ; Haslip v. State, 4 Haywood, 273. Where an offence both by statute and common law 
 is badly laid under the statute, the judgment may be given at common law. State v. Phelps, 
 1 1 Term. Rep. 117; Com. v. Lanigam, 2 Bost. Law. Rep. 49. 
 
 Though there is but one statute prohibiting an offence, it is not fatal for the indictment to 
 conclude contrary to the "statutes." Tereonley v. State, 3 Harrison, 311; butseeSfatev. Cassal, 
 2 Har. & Gill, 407. 
 
 One count concluding "contra formam," Ac., does not cure another without the proper 
 conclusion. State v. Souk, 20 Maine R. 19. Where the offence is governed or limited by 
 
93 INDICTMENT. 
 
 (b) Want of a proper conclusion. 
 
 By stat. 14 & 15 Vict. c. 100, s. 24, no indictment shall be held in- 
 sufficient "for want of a proper or formal conclusion." 
 
 two statutes, there have been various distinctions taken respecting the conclusions against 
 the form of the statutes in the plural, or statute in the singular only. The rule given by 
 the older writers is, that where an offence is prohibited by several independent statutes, it 
 was necessary to conclude in the plural ; but now the better opinion seems to be, that a 
 conclusion in the singular will suffice. 1 Hale, 173 ; Sid. 348 ; Owen, 135 ; 2 Leach, 827 ; 
 
 1 Dyer, 347, a. 4 Co. 48; Hawk. b. 2 c. 25, s. 117 ; Kane v. People, 9 "Wend. 203; Bufman's 
 case, 8 G-reenleaf, 113 ; State v. Jones, 4 Halstead, 357. The general practice now is, to 
 conclude in the singular in all cases, though in Maryland it was held that when an offence 
 is committed by one act of assembly, and the punishment prescribed or affixed by another, 
 the conclusion should be against the acts of assembly. State v. Calias, alias Balcer, 2 Har. 
 & Gill, 407 ; see also Stats v. Pool, 2 Devereux, 202. "Wharton's Cr. Law, 105. 
 
 "Where a statute only inflicts a punishment on that which was an offence before, judgment 
 may be given for the punishment prescribed therein, though the judgment does not conclude 
 contra formam statuti, &c. Com. v. Searle, 3 Binney, 332 ; Bussel v. Gem. 7 Serg. &Rawle, 
 177; White v. Com. 6 Binney, 179; 2 Hale, 190; 1 Saund. 135, a. n. 6 ; 2 Roll. Abr. 82; 
 
 2 Hale, 190 ; 1 Saunfd. 135, a. u. 3. If a statute create an offence, or alter an offence at 
 common law, as by turning a misdemeanor into a felony, the indictment must conclude 
 against the form of the statute; and if an offence bo made so, not by one statute only, but 
 by two or more taken together, the strict conclusion formerly was against the form of the 
 statutes. State v. Jim, 3 Murphy, 3. The reason of the rule, it is said, is that the indict- 
 ment should refer clearly and explicitly to the statute as the foundation of the suit. Browne's 
 case, 3 Greenleaf, 177; Com. v. Springfield, 7 Mass. 9; State v. Soule, 20 Maine, R. 19; 
 Chapman v. Com. 5 "Wharton, 427; 1 Hale, 172, 189, 192; Dougl. 441; 1 Salk. 370; 13 
 East, 258 ; 5 Mod. 307 ; 2 Ld. Raym. 1104; 1 Saund. 135, a. n. 3, 4 ; Hawk. b. 2, u. 25, s. 
 116, c. 23, s. 99 ; Bac. Ab. Indictment, H. i ; Burn J. Indictment, ix ; Cro. C. C. 39 ; 1 
 Chitty on Pleading, 358; 2 Hale, 189; Hawk. b. 2, u . 25, =. 116; 1 Salk. 370; Com. v. 
 Stockbridge, 11 Mass. 279; Com. v. Northampton, 2 Mass. 116; Com. v. Cooky, 10 Pick. 
 37 ; Com. v. Searle, 3 Binney, 332. In such case, "against the peace and dignity of the 
 commonwealth" merely, is bad. Com. v. Northampton, 2 Mass. 116; Com. v. Springfield, 7 
 Mass. 9. But in Massachusetts, a conclusion "against the peace and the statute," is good, 
 (Com. v. Caldwell, 14 Mass. 330 ;) though in the same state it was held insufficient to charge 
 the offence as committed against the law in such case made and provided. Com. v. Stoclc- 
 bridge, 11 Mass. 279. The proper office of the conclusion, contra formam statuti, is to show 
 the court the action is founded on the statute, and is not an action at common law. Crain 
 v. State, 2 Terger, 390. "Wharton's Cr. Law, 105. 
 
 Massachusetts. — It is not sufficient in an indictment for an offence created by statute, 
 to allege the same to have been committed against the law in such case made and provided. 
 11 Mass. 279. See Commonwealth v. Springfield, 1 Mass. 9. In South Carolina, it has 
 been decided, that where an indictment concluded "contrary to the act of assembly of the 
 State of South Carolina," whereas the act under which the indictment was prosecuted, was 
 an act of the Province of South Carolina, that the indictment was nevertheless good. State 
 v. lurnage, 2 Nott & N'Cord, 158. But where an indiotment (since the revolution) concluded 
 against "a British act of Parliament made of force in this State; " the indictment was held 
 to be bad; although there be an act of assembly against the offence committed, which is an 
 exact transcript of the English statute. State v. Holtey, 2 Bay, 262. In Maryland, it has 
 been determined that where an offence is punishable either at common law, or under an act 
 of assembly, and the common law judgment is entered, but is stated to be according to the 
 act of assembly, that the unmeaning expressions following the judgment of the court may 
 be rejected as surplusage. Davis v. State, 3 Har. & J. 154. 
 
SEVERAL COUNTS FOR THE SAME OFFENCE. 93—1 
 
 5. Joinder of Offences. 
 
 (a) Several counts for the same offence. 
 
 There is no objection to stating the same offence, in different ways, 
 in as many different counts of the indictment as you may think neces- 
 sary, even although the judgment on the several counts be differentia) 
 provided all the counts be for felonies, or all for misdemeanors. [2] 
 
 (a) R. v. Galloway, Ry. & M. 234; see R. v. Powell, 2 B. & Ad. 75. 
 
 United States. — If an indictment founded on a statute conclude "contrary to the true in- 
 tent and meaning of the act of Congress in such ease made and provided." it is good and 
 equivalent to a conclusion "against the form of the statute in such case made and provided." 
 United States v. Smith, 2 Mason, 143. 
 
 Maine. — It is held, that if an indictment for an offence against the statutes of Massachu- 
 setts, committed before the separation of Maine, does not charge the offence to have been 
 committed against the peace of Massachusetts, and the laws of the Commonwealth, the omis- 
 sion will be fatal. Damon's case, 6 Greenl. 148. 
 
 Massachusetts. — If an indictment, for a breach of a by-law, conclude against the by-law, 
 without also concluding against the statute, it will be bad. Commonwealth v. Gay, 5 Pick. 
 44. A complaint purporting to be made pursuant to stat. of Mass. 1185, ch. 66, § 2, for the 
 maintenance of a bastard child, but not concluding ■ contra formam statuti, was held suffi- 
 cient. Commonwealth v. Moore, 3 Pick. 197. So in an action on the ease upon a statute, 
 brought by a party aggrieved to recover damages merely, it is not necessary to allege in the 
 declaration that the injurious act or neglect of the defendant was contra formam statuti. Reed 
 v. Northfield, 13 Pick. 94. 
 
 And now in Massachusetts, no indictment shall be quashed or be deemed invalid, nor shall 
 the judgment thereon be arrested or affected by the omission of the words " contrary to the 
 form of the statute." Rev. Stat. ch. 137, § 14. Before this statute the indictment for of- 
 fences created by statute must conclude contra formam statuti absolutely, or at least refer 
 clearly and explicitly to the statute as the foundation of the suit. Commonwealth v. Spring- 
 field, 7 Mass. 9; Same v. Stockbridge, 11 Mass. 279; Same v. Northampton, 2 Mass. 116; 
 Samev. Cooley, 10 Pick. 37. Thus a conclusion "against the peace and dignity of the 
 Commonwealth," was held bad. Commonwealth ■?. Northampton, 2 Mass. 116; Same v. 
 Springfield, 7 Mass. 9. So of a conclusion "against the law in such case provided." Com- 
 monwealth v. Stockbridge, 11 Mass. 279. But a conclusion "against the peace and the stat- 
 ute," was held good. Commonwealth v. Caldwell, 14 Mass. 330. 
 
 New Jersey. — An indictment for assault and battery will not be quashed because it does 
 not conclude " contrary to the form of the statute in such case made and provided." State 
 v. Berry, 4 Halst. 374. 
 
 Kentucky. — No indictment upon a statute can be supported unless the offence is stated to 
 have been committed against the statute. MCulloughv. Commonwealth, Hardin, 95. See 
 State v. Humphrey, 1 Overton's (Tenn.) 307. 
 
 Indiana. — Where an indictment for murder concluded l; contrary to law " instead of "con- 
 trary to the statute," it was held sufficient. Hudson v. State, 1 Blackford, 318; Fuller v. 
 State, lb. 65. 
 
 [2] The introduction of several counts, which merely describe the same transaction in 
 different ways, cannot, in genera], be made the subject of objection. Nor will the defect of 
 some of the counts affect the validity of the remainder, for judgment may be given ao-ainst 
 the defendant upon those which are valid. United States v. La Coste, 2 Mason, 139 ; Curtis 
 v. People, 1 Breese, 200 ; U. S. v. Pirates, 5 Wheat. 184 ; Brown v. Com. 8 Mass. 63 ; Bud- 
 eon v. State, 1 Blackf. 318 ; State v. Boyes, 1 M'Mullan, 190; Harman v. Com. 12 Serg. & 
 
93 — 2 INDICTMENT. 
 
 And the judges have, upon more than one occasion, censured the 
 practice of sending two bills before the grand jury, at the same time, 
 against the same person, as for two different offences, founded on the 
 same evidence of facts, even in cases where the two offences could not 
 be joined in the same indictment, such as an indictment for stealing, 
 and another for receiving the same goods. In this particular case, how- 
 ever, the indictor is now relieved of all difficulty ; for by stat. 11 & 12 
 Vict. c. 46, s. 3, after reciting that according to the practice of courts 
 of criminal jurisdiction, it was not then permitted in an indictment for 
 stealing property to add a count for receiving the same property know- 
 ing it to have been stolen, or in an indictment for receiving stolen pro- 
 perty to add a count for stealing the same property, and that justice 
 was thereby often defeated, — it was enacted that in every indictment 
 for feloniously stealing property, it shall be lawful to add a count for 
 feloniously receiving the same property, knowing it to have been stolen ; 
 and in an indictment for feloniously receiving property knowing it to 
 have been stolen, it shall be lawful to add a count for feloniously steal- 
 ing the same property ; and where any such indictment shall 
 [*94] be preferred and found against any person, the prosecutor shall 
 not be put to his election, but it shall be lawful for the jury 
 who shall try the same to find a verdict of guilty, either of stealing 
 the property, or of receiving it knowing it to have been stolen ; and if 
 such indictment shall be found against two or more persons, it shall be 
 lawful for the jury who shall try the same, to find all or any of the 
 said persons guilty, either of stealing the property or of receiving it 
 knowing it to have been stolen, or to find one or more of the said per- 
 
 Rawle, 69 ; State v. Crank, 2 Bailey, 66 ; State v. Pool, 2 Const. Ct. 691 ; Jennings v. Com. 
 17 Pick. 80; Townsend v. People, 3 Scammon. 328; Twh v. State, 1 Ohio, 340; Kane v. 
 People, 3 Wendell, 363. 
 
 The rule in England in regard to the joinder of offences is, that a felony cannot be joined 
 with a misdemeanor, in the same indictment. The reason which is assigned for this, that 
 the defendant would thereby lose the benefit of having a copy of the indictment, a special 
 jury, and of making his full defence by counsel, has no application at all in this country ; on 
 the contrary, the defendant would gain by being indicted for felony, as he would have the 
 right of challenge, in addition to the other privileges, which are equally secured to all de- 
 fendants, in criminal prosecutions. Prom analogy to the rule of pleading in civil actions, I 
 suppose that whenever the same plea may be pleaded, and the same judgment given, the 
 offences may be joined. No doubt two felonies may be joined, so far as regards the objec- 
 tion in point of law, as matter of form. And so of several misdemeanors. (3 T. R. 98.) 
 And by the English practice, larceny and receiving stolen goods may be joined. 1 Or. Ca. 
 234. But here the receiving is charged as a felony. A case is cited by Mr Rice, in his 
 digest, tit. Indictment, 52, State v. Smith, MSS, where it is said there is a repugnancy in 
 charging a felony in one count, and a misdemeanor in another, which would be fatal. But, 
 if fatal at all, I should suppose it would be so on demurrer, or in arrest of judgment; and 
 yet the judgment there was not arrested, although the defendant was convicted only of the 
 receiving. MeMullan's Rep. 190. 
 
SEVERAL COUNTS FOR THE SAME OFFENCE. ■ 91 
 
 sons guilty of stealing the property, and the other or others of them 
 guilty of receiving it knowing it to have been stolen. [1] 
 
 So, where it was doubtful whether the accused party was an accesso- 
 ry before the fact, or the principal felon, you could not send two bills 
 before the grand jury, one for each offence/ being contrary to the in- 
 junction of the judges as above mentioned ; but as the accessory may 
 now be indicted in the same manner as a principal,(a) he may now be 
 convicted as a principal or accessory on the same count. [2] 
 
 So, there are several cases where a greater offence includes a less, 
 and upon an indictment for the greater offence, the prisoner may be 
 found guilty of the less, — as for instance, upon an indictment for mur- 
 der, the prisoner may be found guilty of manslaughter, — upon an in- 
 dictment for burglary and larceny, the prisoner may be acquitted of 
 the burglary, and found guilty of the larceny, — upon an indictment 
 for breaking and entering a church, house, shop, or warehouse, and 
 stealing therein, the prisoner may be acquitted of the breaking and en- 
 tering, and convicted of the larceny, — in an indictment for stealing 
 from a dwelling house to the value of five pounds, or some person in 
 the house being put in fear, the prisoner may be convicted of the sim- 
 ple larceny, — and the like in these cases, it is not necessary to have a 
 separate bill, or even a separate count, for the less offence. [3] 
 
 (a) See ante, p. 15, 17. 
 
 [1] The right of election in this country is confined to cases where the indictment con- 
 tains charges which are actually distinct, and grow out of different transactions. Com v. 
 Mason, 2 Ashmead, 31 ; State v. Bogan, Charlton Rep. 474. In Georgia, the court will not 
 compel the prosecutor to elect upon an indictment charging the prisoner with larceny, and 
 , receiving stolen goods, &c, where it appears by the indictment that the charges relate to the 
 same transaction, modified to meet the proof. State v. Bogan, Charlton. And the law has 
 been similarly stated in New York. Bane v. The Peoph, 8 Wendell, 203. 
 
 [2] The prosecutor will not be compelled to elect where a count charging" a person with 
 being accessory before the fact is joined with one charging him with being accessory after. 
 Bex v. Blackson, 8 C. &P. 43. And the defendant may be indicted as a principal in the first 
 degree in one count, and as principal in the second degree in another count. On the same 
 principle, where there are counts in an indictment for forging a bill, acceptance, and indorse- 
 ment, the prosecutor is not driven to elect on which he will proceed. Add. Cas. 228. 
 
 [4] It is a general rule which runs through the whole criminal law, that it is sufficient to 
 prove so much of the indictment as shows that the defendant has committed a substantive 
 crime therein specified. 2 Campb. 584, 646; 1 Burr. 399. 
 
 See Roscoe's Dig. Cr. Ev. 74; I Stark. Ev. (5th Amer. ed.) 418; Budsonv. State, 1 Blackf. 
 318; Durham v. State, id. 33; Morris v. State, id. 37; Stewart v. State, 5 Ohio, 242; State 
 y. Coy, 2 Aiken's (Vermont) 181. 
 
 In Massachusetts it is enacted, that whenever any person indicted for a felony shall on the 
 trial be acquitted by verdict of part of the offence charged in the indictment and convicted 
 of the residue thereof, such verdict may be received and recorded by the court; and there- 
 upon the person indicted shall be adjudged guilty of the offence, if any, which shall appear 
 to the court to be substantially charged by the residue of such indictment, and shall be sen- 
 tenced and punished accordingly. Rev. Stat. ch. 137, § 11. Under this section of the sta- 
 tute of Massachusetts, it has been decided, that the prisoner under an indictment for a rape 
 
94 1 INDICTMENT. 
 
 Where a prisoner is indicted for a felony, it is not necessary to pre- 
 fer a separate bill against him for an attempt to commit it, — or where 
 
 committed upon his own daughter, may be acquitted of the rape and convicted of incest. 
 Commonwealth v. Goodhue, 2 Metcalf, 103. 
 
 A defendant indicted for assault and battery with intent to murder, may be convicted of 
 a simple assault and battery. Greater offences include the lesser of a kindred character. 
 State v. Stedman, 7 Porter, 495. See Stewart v. State, 5 Ohio, 242 ; State v. Gaffney, Rice, 
 431 ; Commonwealth v. Drum, 19 Pick. 479 ; Same. v. Hope, 22 Pick. 1, 7 ; Same v. Griffin, 
 21 Pick. 523; People v. Jackson, 3 Hill, 92. 
 
 And in the case of 'redundant allegations it is sufficient to prove part of what is alleged 
 according to its legal effect, provided that which is alleged, but not proved, be neither essen- 
 tial to the charge, nor describe or limit that which is essential. See observations of Abbott, 
 0. J., 2 B. & A. 363. 
 
 Thus, if an indictment for burglary be laid, also, with a felony to the amount of forty 
 shillings, the prisoner may be acquitted of the former, and convicted of the latter. 1 Leach, 
 88. 2 Leach, 711, 2 Hale, 302. [1 Hayw. 12.] And Under an indictment for burglari- 
 ously breaking in and stealing, the charge may be modified by showing a stealing alone, 
 and the burglarious entry be abandoned. 2 Leach, 711. 2 East P. 0. 515, 16. Ohit. Cr. L. 
 638. [1 Blackford, 37.] So under an indictment for a highway robbery, the offender may be 
 found guilty only of larceny. 1 Hale, 534, 5. 2 East P. C. 736, 784. So also if the pris- 
 oner be indicted for stealing in a dwelling-house arid putting in fear, he may be convicted of 
 simple larceny. 2 Leach, 671. Or if he be indicted for horse-stealing, he may be convicted 
 of simple larceny. Russ & Ry. C. C. 416. And, on an indictment for petit treason, he may 
 be found guilty of murder or of manslaughter only, for both these offences are included in 
 the charge. Fost. '329. 3 Hale, 184. 2 Hale, 302. Hawk. b. 2, u. 47, s. 6. As is also 
 the offence of manslaughter in a charge of murder. 1 Hale, 449. 2 Hale, 302. And see 
 the 43 G. 3, c. 113, s. 6, containing an enactment to this effect. 
 
 See State v. Parish, 2 Hayw. 73. But on a charge of murder the prisoner cannot be 
 convicted of involuntary manslaughter. Commonwealth v. Gable, 7 Serg. & Rawle, 423. 
 
 So also on an indictment for privately stealing from the person the defendant may be 
 found guilty of stealing generally. 1 Leach, 473. 2 Hale, 203. Hawk. b. 2. c. 47, s. 6. 
 On an indictment upon the statute 1 James 1, c. 8, for stabbing " contrary to the form of the 
 statute," may be acquitted as to the offence against the statute, and found guiity of man- 
 slaughter at common law. 2 Hale, 302. Hawk. b. 2, c. 47, s. 6. And, upon an indict- 
 ment for stealing above the value of a shilling, may be convicted of stealing to a less amount. 
 Id. ibid. Under an indictment charging an assault with intent to abuse and carnally know, 
 the defendant may be convicted of an assault with intent to abuse simply. 3 Stark. C. N. 
 P. 62. 
 
 So where one is indicted for a rape he may be found guilty of an assault with an intent 
 to commit a rape, Commonwealth v. Cooper, 15 Mass. 187. State v. Shepard, 1 Conn. 54. 
 But see Commonwealth v. Eoby, 12 Pick. 507, where the correctness of the above doctrine 
 is doubted. 
 
 So where a libel is alleged to have been published with intent to defame certain magis- 
 trates, and also to bring the administration of justice into contempt, it is sufficient to prove 
 a publication of either of these intentions. 3 Stark. C. N. P. 35. And if an indictment for 
 treason charge several overt acts, it is sufficient to prove one. Post. 1 94. 
 
 Upon an indictment for obtaining money under false pretences, it is not necessary to prove 
 the" whole of the pretence charged, proof of part of the pretence, and that the money was 
 obtained by such part, will suffice; (Russ. & Ry. C. C. 190; See People v. Eaynes, 11 "Wen- 
 dell, 557 ; Roscoe's Dig. Cr. Ev. 368 ;) and, in case of perjury, it will suffice, to prove one of 
 the assignments to authorize a conviction. 2 Ld. Rayra. 887. An indictment on the 7 Geo. 
 3, c. 59, s. 1, stating the prisoner to have been employed in two branches of the post-office, 
 proof of his having been employed in either will bo sufficient; and if the letter embezzled 
 
SEVERAL COUNTS FOE THE SAME OFFENCE. 94 — 2 
 
 lie is indicted for a misdemeanor, it is not necessary to add another 
 count for an attempt to commit it, — because upon an indictment for the 
 felony or misdemeanor, if upon the trial it appear that the defendant 
 merely attempted to commit the offence, but did not complete it, the 
 jury may acquit him of the offence charged, and find him guilty of the 
 attempt.(a) So, upon an indictment for robbery, the prisoner may now 
 be found guilty of an assault with intent to rob.(6) So, upon an indict- 
 ment for embezzlement, if the offence upon the evidence appear to be 
 a larceny, the jury may acquit the prisoner of the embezzlement, and 
 find him guilty of simple larceny, or of larceny as clerk or servant.(c) 
 Or upon an indictment for larceny, if upon the evidence it appear to 
 be embezzlement, the jury may acquit of the larceny, and find the par- 
 ta) 14 & 15 Vict. 0. 100, s. 9. (c) 14 & 15 Vict. c. 100, =. 13. 
 (&) Id. s. 11. 
 
 ia described as having contained several notes, proof of its having contained any one of them 
 will suffice. Russ. & Ry. C. C. 189. When the prisoner was described in two counts as a 
 person employed in sorting and charging letters, he was found guilty, though it was proved 
 he was a sorter only. 2 Bla. Rep. 189; 3 M. & S. 371. We have already (Chit. Cr. L. 
 238) seen how far it is unnecessary to prove the entire number, description, or value of pro- 
 perty, according to the statement of it in the indictment. If an indictment charge that the 
 defendant did, and caused to be done, a particular act, it is enough to prove either. 2 
 Campb. 584; 1 Burr. 399. See 12 Wendell, 430. Thus, under an indictment for forgery, 
 stating that the defendant forged, and caused to be forged, it suffices to prove either. 1 Burr. 
 399 ; Dick. J. Distress, 411. So a defendant may be found guilty upon a count in an informa- 
 tion, which charges him with having composed, printed, and published a libel, if he be proved 
 to have published without having composed it. 2 Campb. 584, 646. 
 
 A person indicted for breaking and entering a warehouse with intent to steal, and also 
 with stealing, may be convicted of the larceny simply. State v. Cocker, 3 Harrington, 554 ; 
 State v. Grisham, 1 Haywood, 12. In State v. Cornell, 4 Iredell Rep. 231, on an indictment 
 for fornication and adultery, the jury having found that the defendants were guilty of forni- 
 cation but not of adultery, it was held the state was entitled to judgment. In an indictment 
 for assault with intent to kill, the defendant may be convicted of assault and battery, or 
 assault alone. Stewart v. State of Ohio, 5 Ohio Rep. 242. 
 
 An indictment under the South Carolina Act of 1821, includes the inferior offence of 
 "killing in sudden heat and passion," to the same extent and for the same reasons that mur- 
 der at common law includes manslaughter; and therefore, on such an indictment, the priso- 
 ner may be convicted of the inferior offence described in the second clause of the same act. 
 State v Gaffney, Rice, 431. In Massachusetts, it was hold that at common law, one charged 
 with a felony could not be convicted of part of the charge, unless the part amounted to a 
 felony. Com. v. Newell, 7 Mass. 245; Com. v. Edby, 12 Pick. 496; overruling Com. v. 
 Cooper, 15 Mass. 187. But, by Rev. Stat. c. 137, sec. 11, on such an indictment, if the jury 
 acquit a part of the charge, the defendant may be sentenced for any offence substantially 
 charged by the residue of such indictment. Com. v. Drum, 19 Pick. 479. Thus, on an in- 
 dictment for rape, one may be convicted of assault and battery, (Ibid.,) or, on the same 
 charge, of incest, (Com. v. Goodhue, 2 Metcalf, 193;) or on an indictment for manslaughter, 
 of assault and battery. Com. v. Drum, 19 Pick. 479 . see also, Com. v. Hope, 22 Pick. 1, 7 ; 
 Com. v. Griffin, 21 Pick. 523. And in New York it has been determined that under an in- 
 dictment for procuring an abortion of a quick child, which, by the revised statutes is a 
 felony, the prisoner may be convicted, though it turn out the child was not quick, and tho 
 offence, therefore, a mere misdemeanor. People v. JacJcson, 3 Hill's N. Y. R. 92. 
 
 31 
 
94-— S INDICTMENT. 
 
 ty guilty of the ernbezzlement.(a) So, if upon an indictment 
 [*95] for obtaining money or *goods by false pretences, tbe offence 
 upon the evidence turn out to be larceny, the defendant not- 
 withstanding may be convicted of the false pretences.(5) So, upon an 
 indictment for any misdemeanor, if the facts given in evidence amount 
 to a felony, the defendant shall not on that account be acquitted of the 
 misdemeanor, unless the court think fit to discharge the jury, and or- 
 der the defendant to be indicted for the felony.(c) 
 
 In these several cases it is unnecessary and useless to prefer a second 
 bill, or to add a second count (where that can be done,) for the offence 
 of which the defendant may be thus convicted; indeed, if a second bill 
 be preferred, and the defendant be acquitted on the first, he may plead 
 autrefois acquit to the second. 
 
 (h) Second count for a different offence. 
 
 If different felonies or misdemeanors be stated in several counts of 
 an indictment, no objection can be made to the indictment on that 
 account in point of law. In cases of felony, indeed, the judge in his 
 discretion, may require the counsel for the prosecution to select one of 
 the felonies, and confine himself to that. This is what is technically 
 termed putting the prosecutor to his election. [1] But this practice has 
 
 (a) 14 & 15 Vict. u. 100, a. 13. (c) 14 & 15 Yict. o. 100, s. 12. 
 
 (6) 7& 8 G. 4, u. 29, a. 53. 
 
 [1] In cases of felony, no more than one distinct offence or criminal transaction at one 
 time should regularly be charged upon the prisoner in one indictment, lest it should con- 
 found the prisoner in his defence. But this is only matter of prudence and discretion which 
 it rests with the judges to exercise. 2 Hale, 173; 2 Leach, 1103; People v. Rynders, 12 
 "Wendell, 425 ; Kane v. People, 8 Wendell, 203 ; Burk v. State, 2 Harr. & Johns. 426 ; Com. 
 v. Symonds, 2 Mass. 163 ; Stowers v. State, 3 Miss. 9 ; Baker v. State, 4 Pike, 56. 
 
 In the case of misdemeanors, the joinder of several offences will not, in general, vitiate in 
 any stage of the prosecution. 3 T. R. 105, 6; 2 Campb. 132; 5 Burr. 984; 8 East, 41; Burn, 
 J. Indictment, IV; Cro. C. C. 41 ; [8 Wendell. 211.] For, in offences inferior to felony, the 
 practice of quashing the indictment or calling upon the prosecutor to elect on which charge 
 he will proceed, does not exist. 2 Camp 132. But on the contrary, it is the constant prac- 
 tice to receive evidence of several libels and assaults upon the same indictment. Id. ibid. 
 It was indeed formerly held that assaults on more than one individual could not be joiued 
 in the same proceeding, (2 Stra. 870; 2 Ld. Eaym. 1575 ; 2 Sess. Cass. 24; but this is now 
 exploded; 2 Burr. 984; Com. Dig. Indictment, E; Burn, J. Indictment, IV;) for though two 
 persons cannot join in a civil action, the reason is, that the damages are several, which can- 
 not apply to criminal proceedings where no compensation is given to the prosecutor, and 
 public security is the object to be obtained. 
 
 For the same reason an indictment for a libel on a body of trustees will be good, though 
 it profess to be for a libel on three of them only. 1 Sess. Cas. 262. And it has been held, 
 that it is no objection on demurrer that several defendants are charged in different counts 
 of the same indictment with several offences of the same nature, (see Redman v. State, 1 
 Blackford, 431 ; Commonwealth v. Gillespie, 7 Serg. & R. 469; Arch. Cr. PI. (4 Don. ed.) 55, 
 56. As to charging tho defendant with two or more offences in any one comt of the indict- 
 
SECOND COUNT FOR A DIFFERENT OFFENCE. 95 
 
 never been extended to misdemeanors.(a) "We have seen, however,(6) 
 that where a count for larceny, and a count for receiving the same 
 
 (a) Per Lord Ellenborough, C. J. in Young (b) Ante, p. 94. 
 v, Sex, in error, 3 T. R. 98. 
 
 ment, see Arch. Cr. PI. (4 Lon. ed.) 49 ; Commonwealth v. Symonds, 2 Mass. 163.) though 
 it may be a ground for applying to the court in its discretion to quash the indictment. 8 
 East, 41 ; 7 Serg. & R. 469. But care must be taken that the offences be not charged in 
 such a manner as to confound the evidence, and that no counts be joined upon which the 
 judgments must necessarily be different, (as in New York, where the forging of a mortgage 
 and of a receipt endorsed thereon are both charged in the same count, and the defendant be 
 convicted, the judgment will be arrested. People v. Wright, 9 Wendell, 193 ; see State v. 
 Montague, 2 M'Cord, 281. An indictment, which charges in the same count an offence made 
 capital by one section of a statute, and another offence declared by the same law to be a 
 misdemeanor, is bad. United States v. Sharp, 1 Peters' C. C. 118; see State v. Coleman 5 
 Porter, 32,) as a charge of felony with another of mere misdemeanor, (but in Maryland, an 
 indictment containing two counts, one charging felony and the other a misdemeanor, was 
 held to be good. Buck v. State, 2 Harr. & Johns. 426,) for it may operate like a misjoinder 
 in civil actions, and if so, the indictment will be bad on demurrer, or on motion in arrest of 
 judgment. 3 T. R. 103, 435 ; but see 1 East P. C. 408-9-10. But the rule that where 
 there is a different judgment counts cannot be joined, is not always the criterion whether 
 the offence may not be laid in different ways; at all events it does not apply to all cases; 
 for instance, in the offence of embezzling naval stores, the having in possession new stores, 
 or stores not more than one third worn, is subject to transportation for fourteen years, (sea 
 39 & 40 Geo. 3, c. 89. s. 1 ;) but if they be not new or more than one third worn, the pun- 
 , ishment is different. (Id. s. 2 ;) yet counts for both these offences may be included in the 
 same indictment. 3 M. & S. 550. So in conspiracy, the judgment upon conviction is, that 
 the party is infamous, and yet nothing is more familiar than to add to counts for a conspi- 
 racy other counts which do not include a charge of conspiracy, (Id. ;) and according to Lord 
 Hale, a person who commits petit treason, may be indicted for murder ; yet there are differ- 
 ent judgments upon each, as well as different challenges. 1 Hale P. C. 378; Fost. 325. 
 328; but the circumstances there stated do not sufficiently show whether it was the same 
 person. But when the prosecutor wishes to prevent the removal of an indictment from the 
 sessions, for obtaining goods by false pretences under 30 Geo. 2, c. 24, he should not insert 
 counts for conspiracy, as that would take the case out of that statute. The King v. Godfrey 
 and others, 1825. It is no objection to an indictment that the punishment for one of the 
 offences is positive, and for the other discretionary, (4 East, 174 ; I East P. C. 408, 9, 10 ; 
 2 M. & S. 533 ;) aod after a general verdict the objection of misjoinder may be avoided by 
 entering up judgment upon a particular count. 4 East, 179 ; 1 East P. C. 408, 9, 10. And, 
 therefore, where a defendant was indicted on 9 Anne, c. 14, for an assault, on account of 
 money won at gaming, the punishment of which is prescribed by the statute, and for an as- 
 sault at common law, after a general verdict, a motion in arrest of judgment was abandoned 
 by the counsel for a prisoner. 4 East, 179. And if two distinct offences are charged, and 
 one of them is not indictable or laid without sufficient precision, judgment will be given for 
 the crown if the other be sufficient upon general demurrer; for we have already seen, that 
 part of an indictment may be good, though the other part be defective. 2 Sess. Cas. 32.. 
 See Commonwealth v. Gable, 1 Serg. & R. 423 ; U. States v. Sharp, I Peters' C. C. 131 ; 
 State v. Nelson, 8 N. Hamp. 163 ; Miller v.- State, 5 How. (Miss.) 250 ; People v. Wright, 9 
 Wendell, 193; State v. Cowell, 4 Ged. 231. 
 
 Breaking and entering without intent to steal, and actually stealing, may both be stated 
 in the same indictment, Commonwealth v. Tuck, 20 Pick. 356; State v. Brady, 14 Vermont, 
 353 ; State v. Crocker, 3 Harr. Del. 554; State v. Grisham, 1 Hayw. 12; Jossk/n v. Com- 
 monwealth, 6 Metcalfj 236. 
 
95 — 1 INDICTMENT. 
 
 goods, are joined in the same indictment, the prosecutor shall not be 
 put to his election. So a prosecutor may insert three counts in the 
 same indictment for separate acts of larceny, committed by the same 
 person against the prosecutor within six months from the first to the 
 last of such acts ;(a) and he shall not, in that case, be put to his election. 
 Or, if there be but one count, for a stealing at one time, the prosecutor 
 ma\- give in evidence three larcenies, committed by the prisoner at dif- 
 ferent times within six months from the first to to the last of them, and 
 he shall not be put to his election.(J) So, in an indictment for embez- 
 zlement by a clerk or servant, the prosecutor may insert three counts 
 for separate acts of embezzlement, committed within six months from 
 the first to the last of such acts ;(c) and he shall not in that ease be put 
 to his election. [2] 
 
 (a) 14 & 15 Vict. u. 100, s. 16. (c) 1 & 8 a. 4, c'29, s. 48. 
 
 (6) Id. s. It. 
 
 When charged in two counts and the defendant is convicted generally, he may he sen- 
 tenced for both offences. Josslyn v. Commonwealth^^ Metcalf, 236. But if the breaking 
 and entering and the actually stealing, are charged in one count, only one offence is charged, 
 and the defendant on conviction, can be sentenced to one penalty only. lb. 
 
 [2] In Maryland, in Alabama, and in South Carolina, it has been held, in some cases, 
 after extended argument, that in all cases felonies and misdemeanors, when relating to the 
 same subject matter, may be properly joined. In Maryland the joinder of rape, 'with assault 
 with intent to commit rape, was sanctioned by the court. Buck v. State, 2 Harr. & John. 
 426; State v. Coleman, 5 Porter, 52; State v. Montague, 2 M'Cord, 287 ; Stater. Gaffney, 
 Rice, 431. 
 
 In the case of State v. Boyer & StuJee, 1 M'Mullan, Rep. 190, decided in South Carolina, 
 the court said: " The rule in England is that a felony cannot be joined with a misdemea- 
 nor, in the same indictment. The reason which is assigned for this, that the defendant would 
 thereby lose the benefit of having a copy of the indictment, a special jury, and of making 
 his full defence by counsel, has no application at all in this country ; on the contrary, the de- 
 fendant would gain by being indicted for felony, as he would have the right of challenge, in 
 addition to the other privileges, which are equally secured to all defendants, in criminal pro- 
 secutions. From analogy to the rule of pleading in civil actions, I suppose that whenever 
 the same plea may be pleaded, and the same judgment given, the offences may be joined. 
 No doubt two felonies may be joined, so far as regards the objection in point of law, as 
 matter of form. And so of several misdemeanors. 3 T. R. 98. And by the English prac- 
 tice, larceny, and receiving stolen goods may be joined. 1 Cr. Ca. 234. But here the re- 
 ceiving is charged as a felony. A case is cited by Mr. Rice in his Digest, tit. Indictment, 
 82. State v. Smith, Mss., where it is said there is a repugnancy in charging a felony in one 
 count, and a misdemeanor in another, which would be fatal. But, if fatal at all, I should 
 suppose it would be so on demurrer, or in arrest of judgment ; and yet the judgment there 
 was not arrested, although the defendant was convicted only of the receiving. Since the 
 Act of 1829, subjecting the receiver to the punishment of whipping, and that of 1834, im- 
 posing the same punishment for grand larceny, the Act of 1833 having abolished branding, 
 I can perceive no greater incongruity or repugnancy in joining larceny and receiving stolen 
 goods, in the indictment, than there is in joining any other distinct offences, where the same 
 judgment must be accorded. It is true, the offences are technically of different natures. 
 One is a felony, and the other a misdemeanor. A second conviction of the former would be 
 capital ; but as the formality of praying the benefit of the clergy, on the first conviction, is 
 
SECOND COUNT FOR A DIFFERENT OFFENCE. 95—2 
 
 But two offences cannot br charged in the same count; the count in 
 such a, case would be bad for duplicity. Where, however, in one count 
 of an indictment on stat. 37 Gr. 3, c. 70, the defendant was charged 
 with endeavoring to incite a soldier " to commit an act of mutiny, and 
 to commit traitorous and mutinous practices," — it was objected in arrest 
 of judgment that the count was bad, as charging two offences ; but the. 
 judges seemed to think it good, for there might be only one en- 
 deavour to incite to the two offences ; the point however was [*96] 
 not decided, as there were other counts which were unobjec- 
 tionable.^) So, where the lessee of a coal pit was charged in one 
 count with stealing coal, the property of thirty different persons, who 
 had mines in the vicinity of his, into which he caused his men to work 
 and take the coal, — the prisoner's counsel moved that the counsel for 
 the prosecution should select some particular act, done on a particular 
 day, and confine his statement and evidence to that; but the judge 
 (Erie, J.) refused to interfere ; the case was then gone into, and proved, 
 and the prisoner's counsel again objected to the count, as charging a 
 stealing of the coal of several persons, in different places, and at differ- 
 ent times : but the judge held that the different workings might be 
 relied on to show the felonious intent, although they extended into 
 twenty different counties, and the coal belonged to twenty different 
 persons, and extended over twenty years, if the mining operations were 
 continuous for that time.(S) So, there is no objection to charging a de- 
 fendant in one count with assaulting two persons, when the whole forms 
 one transaction. (c) So, an indictment for robbery, which charged four 
 prisoners with assaulting A. B. and C. D., and stealing two shillings 
 
 (a) R. v. Fuller, 1 Bos. & P. 180. (c) See R. v. Benfield and Saunders, 2 Burr, 
 
 (6) R. v. Bkasdale, 2 Car. & K. 765. 984, per Lord Mansfield, C. J. 
 
 wholly dispensed with, and the punishment of whipping is peremptorily substituted, the 
 offences are so far assimilated, that the technical objection which prevails in England, to 
 their being joined, does not exist here." 
 
 In Pennsylvania, in the case of Barman v. Com., 12 Serg. & Rawle, Rep. 64, a count for 
 an assault and battery, with intent to commit a rape. It was held that such a joinder could ' 
 not be objected, after conviction, but that judgment would be entered upon the count that 
 was good; and Tilghman, Ch. J., in an elaborate opinion, stated that the constant practice 
 had been in Pennsylvania to join counts under similar circumstances, and that though per- 
 haps in such a case the court might compel the commonwealth to elect before verdict after 
 conviction the indictment could not be shaken. 
 
 Mr. Wharton (Cr. Law, p. 108,) remarks that the Pennsylvania practice undoubtedly is to 
 join counts for felonies and for misdemeanors, when relating to the same subject matter. 
 Thus the ordinary form for larceny in most of the counties, contains a count for receiving 
 stolen goods, though the latter offence is but a misdemeanor in Pennsylvania. In fact, the 
 law has in that state been pushed to even greater lengths, it being held that it is not a valid 
 objection in arrest of judgment, that several persons are charged in the same indictment in 
 different counts, sometimes singly, and sometimes jointly, for different offences, though the 
 court will at its discretion quash such indictments. 
 
96 INDICTMENT. 
 
 from A. B. and one shilling from C. D., the whole being one transac- 
 tion, — was holden good by Tindal, C. J.(a)[l] 
 
 (a) R. v. Giddins et al, Car. & M. 634. 
 
 [1] Laying several overt acts in a count for high treason is not duplicity, (Kelyng, 8,) be- 
 cause the charge consists of the compassing, Ac, and the Overt acts are merely evidences of 
 it : and the same as to conspiracy. A count in an indictment charging one endeavor or 
 conspiracy to procure the commission of two offences, is not bad for duplicity, because the 
 endeavor is the offence charged. R. v. Fuller, 1 B. & r. 181. A man may be indicted for 
 the battery of two or more persons in the same count, (R. v Benefield, 2 Burr. 984; see 2 
 Str. 890 ; 2 Ld. Raym. 15Y2, contra,) or for a libel upon two or more persons, where the 
 publication is one single act, (R. v. Jenner, 1 Mod. 400; 2 Bur. 983,) without rendering the 
 count bad for dup'.icity. 
 
 In all cases of larceny, and like offences, several articles may be joined in a count, the 
 proof of either of which will sustain the indictment. It has even been ruled, that the same 
 count may join the larceny of several distinct articles, belonging to different owners, where 
 the time and the place of the taking of each are the same. Com. v. Williams, Thacher, C. 
 C. 722. An indictment may, in a single count, charge the prisoner with stealing three 
 negroes, and the offence is complete if he stole either of the negroes, and the conviction will 
 be sustaiued. State v. Johnson, 3 Hill's S. C. R. 1. 
 
 "Where in an indictment for forgery, two distinct offences, requiring different punishments, 
 are joined in the same count, as where the forging of a mortgage, and of a receipt endorsed 
 thereon, are both charged in the same count, and the defendant is convicted, the judgment 
 will be arrested. People v. Wright, 9 "Wendell Rep. 193. 
 
 In the case of U. S. v. Sharp, 1 Peters' C. C. Rep. 131, where the indictment charged in 
 the same count a capital offence and a misdemeanor, it was quashed. In New Hampshire, 
 where horse stealing and ordinary larceny, to which different penalties are affixed, are joined 
 in one count, it is good cause for arresting judgment. State v. Nekon, 8 New Hamp. Rep. 
 163. Under the Mississippi statute against retailing spirituous liquors, making it unlawful 
 to sell in less quantities than one gallon, and also declaring it unlawful for the person sell- 
 ing to suffer the same to be drunk in or about his house ; a count in an indictment charging 
 that the defendant sold in less quantities than one gallon, and suffered the same to be 
 drunk in his house, was held bad lor duplicity. Miller v. State. 5 How. Rep. 250. 
 
 A count stating that the defendant broke and entered into a shop with intent to commit 
 a larceny, and did then and there commit a larceny, is not bad for duplicity. Com. v Tuck, 
 20 Pick. Rep. 356. So where an indictment alleged that the defendant broke and entered 
 into the dwelling-house of one person with intent to steal his goods, and having so entered, 
 stole the goods of another person, &o. State v. Brady, 14 Vermont Rep. 353. 
 
 An indictment which charges a prisoner with the offences of falsely making, forging, and 
 counterfeiting, of causing and procuring to be falsely made, forged and counterfeited, and of 
 willingly acting and assisting in the said false making, forging and counterfeiting, is a good 
 indictment, though all of these charges are contained in a single count ; and as the words, 
 of the statute have been pursued, there being a general verdict of guilty, judgment ought 
 not to be arrested on the ground that the offences are distinct. Rasnic v. Com. 2 Virg. C. 
 356 ; State v. HouseaU, 2 Rice's Dig. 346. 
 
 Setting up a gaming table, it has been said, may be an entire offence ; keeping a gaming 
 table, and inducing others to bet upon it may also constitute a distinct offence : for either, 
 unconnected with the other, an indictment will lie. Yet when botii are perpetunted by the 
 same person at the same time, they constitute but one offence, for which one count is suffi- 
 cient, and for which but one penalty can be inflicted Binclcle v. Com., 4 Dana, 518. In 
 this country, it has been hold that it is no objection to nn indictment, especially after verdict 
 that charges which might have been the subject of distinct counts, or of distinct indictments, 
 
JOINDER OP DEFENDANTS. 96 — 1 
 
 ' 6. Joinder of defendants. 
 
 If several be engaged in the commission of the same offence, they 
 may be joined in the same indictment, or each may be separately in- 
 dicted.(a)[2] 
 
 (a) 2 Hawk. o. 25, s. 89. 
 
 are included iu one count. State v. Johnson, 3 Hill's So. Car. K. 1 ; Com. v. Tack, 20 Pick. 
 356. 
 
 Duplicity, in criminal cases, may be objected to by special demurrer, perliaps by general 
 demurrer, or the court in general, upon application, will quash the indictment ; but it is 
 extremely doubtful if it can be made the subject of a motion in arrest of judgment or of a 
 writ of error; and it is cured by a verdict of guilty as to one of the offences, and not guilty 
 as to the other. Wharton's Cr. Law, p. 98. 
 
 [2] Where the act is such as several may join in, all the offenders may be included in the 
 same indictment. See generally, 2 Hale. 173 ; 2 Burr. 984 ; 1 Sess. Cas. 426 ; Hawk. b. 2, 
 c. 25, s. 89 ; Com. Dig. Indictment F. Bac. Abr. Indictment, G. 5 ; Cro. C. C. 41, 2 ; Burn, 
 J. Indictment, IV. 
 
 Where two or more persons are jointly indicted for a capital offence, as for murder, they 
 are not as a matter of right, entitled to separate trials, but it is a matter of discretion to be 
 decided by the court, under all the circumstances of the case. United Suites v. Merchant, 4 
 Mason, 158 ; Commonwealth v. Gillespie, 7 Serg. & Eawle, 469 ; Redman v, State, 1 Blackford, 
 431. Parties to the crime of adultery may be indicted jointly. Commonwealth v. Elwett, 2 
 Metealf, 190. 
 
 As to indictments for riot and conspiracy, which require more than one person to commit 
 the offence, see State v. Allison, 3 Yerger, 428 ; People v. Howell, 4 John. 296 ; Twrpin v. 
 State, 4 Blackf. 72 ; Commonwealth v. Hansen, 2 Ashmead, 31 ; Pennsylvania v. Hvtrtim, 
 Addis. 334. 
 
 Thus, though torts are in their nature several, and each one must answer for his own 
 individual crime ; yet where several keep a common gaming or other disorderly house, or 
 are guilty of deer stealing, maintenance, extortion, trespass, or other offences which admit 
 agency of several, they may be either jointly or severally indicted. 2 Hale, 173, 4; 10 
 Mod. 335, 336 ; 1 Tent. 302 ; 1 Salk. 382 ; 2 Ld. Kaym. 1248 ; Hawk. b. 2, c. 25, s. 89 ; 
 Com. Dig. Indictments, P. Bac. Abr. Indictment, G. 5 Burn, J. Indictment, IV. 8 East, 
 47. But where the criminality arose in consequence of some personal disqualification to do 
 an act in itself lawful, as for exercising a trade under the stat. of Elizabeth, not having 
 served an apprenticeship, each individual might have been prosecuted alone. 2 Roll. Abr. 
 81 ; 1 Stra. 623 ; 5 Mod. 181:2 Sess. Cas. 221 ; 4 Burr. 2046; 10 Mod. 335, 6. 1 Vent. 
 302; 1 Salk. 382; 2 Hale, 184; Hawk. b. 2, u. 25, s. 89; Com. Dig. Indictment, P. Bac. 
 Abr. Indictment, G. 5 ; Burn, J. Indictment, IV. ; Chitty's Apprentice Law, 137. So also, 
 several cannot be joined in an indictment for perjury, because the assignment must be of the 
 very words spoken, and the words uttered by one cannot possibly be applied to those which 
 proceed Irora another ; besides, one of the defendants may be desirous of obtaining a certio- 
 rari, while the others are anxious for an immediate trial. 3 T. R. 103, 4 ; 2 Stra. 921 ; 1 
 Sess. Cas. 424; 2 Burr. 983, 984; 2 Barnard, 24; Hawk. b. 2, c. 25. s. 89 in notes ; Bac. 
 Abr. Indictment, G. 5 ; Com. Dig. Indictment, P. Upon the same principle, no indictment 
 can be supported against several for being common scolds or barretors, (2 Stra. 921,) nor 
 absenting themselves from church, (Temp. P. C. 267,) nor can several parishes be indicted 
 together for suffering a highway to be out of repair. Rep. temp. Hardw. 105 ; Styles, 157. 
 So neithor can several individuals be jointly indicted for omitting to repair the pavement 
 before their respective houses. 2 Roll. Abr. 81 ; Hawk. b. 2, c. 25, s. 89. But several may 
 bo indicted for the same libel, if they all join in publishing it. 2 Burr. 985 ; Burn, J. In- 
 dictment, IV. And the same persons being concerned as principals in the same offence, may 
 
96 2 INDICTMENT.. 
 
 All principals in the first and second degree may be thus joined in 
 the same iudictment.(a) And where goods were obtained by false pre- 
 tences, the pretence being by words spoken by one of the parties in the 
 presence of the others, but all of them were acting in concert, it was 
 holden that they might be jointly indicted.(6) So in all misdemeanors, 
 where those who in felonies would be accessories before the fact are 
 
 (a) See ante, p. 14. (6) E. v. Youug, et al, 3 T. R. 98. 
 
 all be joined in the same indictment, though the degrees of guilt .may differ. Thus, in ease 
 of felony, where several are present aiding and abetting, they maybe joined with the princi- 
 pal in the first degree, and charged in the indictment either as actual perpetrators, or as 
 aiders and abettors. 3 T. R. 305 ; 1 leach, 64, 350, 505 ; Hawk. b. 2, c. 25, s, 64; Chit. 
 Cr. L. 260. And in all cases of high treason, petit larceny, mayhem, and offences inferior 
 to felony, the act of one being in law the act of the rest, they may all be charged as having 
 jointly committed the offence; (7 Bast. 65; 1 Hale, 615, 521, 2 ; 4 Bla. Com. 36. except in 
 the case of becoming «■ traitor, by harboring anothor traitor, in which case the indictment 
 must be specially framed. Fost; 345. Where the principal in the second degree is charged 
 as an aider or abettor, it is not necessary to set forth in the indictment the means or manner 
 by which he became thus guilty, but merely to describe him generally as being present; 
 aiding and abetting at the felony and murder (as the case may be) committed, in manner and 
 form aforesaid. 2 Ld. Raym. 846; 1 Hale, 521, 2 Hawk. b. 2, c. 25, s. 64; Id. b. 2 c. 29, 
 s. 17 ; 4 Co. 42 ; 3 Price, 145 ; 2 Marsh. 406 ; Russ. & Ry. 0. C. 314, S. C. But merely 
 to charge him with being present, will not suffice, because he may possibly be innocent. 
 Hawk. b. 2, e. 25, a. 64; Post. 351 ; 4 Co. Rep. 42. In indictments for homicide, it is safer 
 to aver the abetment generally; but if it be laid specially, it should refer to the stroke, and 
 not to the death. 4 Co. 42. And it seems proper to aVer the abetting with malice prepense, 
 and then to draw the conclusion that all present murdered the deceased. 9 Co. 62. But 
 care must be taken, if the stroke and death were on different days, to lay the murder on the 
 latter, though the abetting was on the former, for till then, no felony was completed. 4 
 Co. 42. 
 
 If money or goods be obtained upon false pretences, all who are present aiding may be 
 included in one indictment under the statute. 1 Leach, 505; and so in the case of per- 
 sonating seamen, against the 57 Geo. 3. c. 127, s, 4; Russ. & Ry. C. C. 353. And if the 
 crime arise out of the same act, though the parties stand in different relations, they may be 
 joined in the same indictment ; thus, if a wife join with a stranger in the murder of her hus- 
 band, they may be prosecuted together, though the wife is guilty of petit treason, and the 
 stranger of murder only. Fost. 106, 329 ; Com. Dig. Indictment, F.; Burn, J. Indictment, 
 IV. And in that case the indictment may conclude that they '-fehnioush/, traitorously, and 
 of their malice aforethought, did kill and murder," which will be good for both of them, apply- 
 ing to each their appropriate terms. Id. ibid. So, several present at the death of a man 
 may be charged with different degrees of homicide in the same indictment; thus if A., with 
 malice, abet B., who gives the blow without malice, it is murder in the former, and but man- 
 slaughter in the latter ; and thus it may be stated in the proceedings. And in an indictment 
 for burglary and larceny against two, one may be found guilty of the burglary and larceny, 
 and the other of larceny only. Russ & Ry. C. 0. 520. And it seems that on the trial, if 
 two be indicted for murder, the jury may find it murder as to one and manslaughter as to 
 the other : but if this distinction appear to the grand inquest upon the evidence to support 
 the bill, a new bill for the inferior offence should be presented against the less guilty indi- 
 vidual. 3 Bulst. 206 ; 2 Hale, 162 ; 2 Roll. Rep. 408 ; 1 Sid. 230 ; Hawk. b. 2, c. 29, B . 7. 
 And on an indictment against two, charging them with a joint offence, either may be found 
 guilty, but they cannot be found guilty of the separate parts of the charge subjecting the 
 prisoners to distinct punishments. Russ. & Ry. C. C. 344. 
 
JOINDER OF DEFENDANTS. 96-r-3 
 
 principals, and are so indicted, the party, who commits the offence, and 
 he who incited him to commit it, may be indicted together as principals, 
 in the same manner as if they were both present and acting in the com- 
 mission of it. Therefore, where A. advised and encouraged B. to set 
 fire to a malt house, and B. attempted to do so, but did not succeed, it 
 was holden by Williams, J., that both might be indicted jointly for the 
 attempt.(a) So in felony, we have seen(b) that the accessory 
 before *the fact may be indicted with the principal ; so may the [*97] 
 accessory after the fact;(c) or they may be tried separately. [1] 
 
 (a) R. v. Clayton & Mooney, 1 Car. & K. (b) Ante, p. 15. 
 
 128. (c) Ante, p. 18. 
 
 [1] Where the parties are thus joined in the same proceeding, the proper course is first to 
 state the guilt of the principal as if he alone had been concerned, and then in case of acces- 
 sories before the fact, to aver " that C. D., late of, &c. (the procurer) before the committing of 
 the said felony and murder (or burglary, as the case is) in form aforesaid, to wit, on, &c. with 
 force and arms, &c. did maliciously and feloniously incite, move, procure, aid, and abet (or 
 'counsel, hire, and command') the said A. B. (the principal felon,) to do and commit the said 
 felony, in manner aforesaid against the peace, &c. See 1 Leach, 515; Williams, J. Accesso- 
 ries, V. 2 Chit. Cr. L. 5." And where a man is indicted aa an accessary after the fact together 
 with his principal, the original felony is to be stated in the same way, and the conclusion 
 must aver that the accessory did receive, harbor and maintain, &c. the principal felon, well 
 knowing that he had committed the felony. Id. Ibid. See 2 Chit. Cr. Law, 5. As to proof 
 of guilty knowledge in this case, see Roscoe's Dig. Cr. Ev. 720, et seq. The averment of 
 knowledge is indispensably requisite; because without it, the -guilt does not manifestly ap- 
 pear. 1 Hale, 622; Com. Dig. Justices, T. 2. Hawk. b. 2, c. 29, s. 33; Burn, J. Indictment , 
 III; Hawk. b. 2, u. 25, s. 67 ; 2 Lev. 208. But it is in no case necessary to use the word 
 "accessory " in the indictment, (3 P. Wms. 477.) or to set forth the means by which the ac- 
 cessory before the fact incited the principal to commit the felony, or the accessory after, re- 
 ceived, concealed, or comforted him; for it is perfectly immaterial in what way the purpose 
 of the one was effected, or the harboring of the other secured; and as the means arc fre- 
 quently of a complicated nature, it would lead to great inconvenience and perplexity if they 
 were always to be described upon the record. Co. Ent. 56, 57; Rast, Ent, 48, 51, 2; 9 Co. 
 114; Hawk. b. 2, c. 29, s. 17. The felony of which the principal was guilty must be set 
 forth according to the facts; it has been questioned whether In an indictment against A., &c. 
 for a burglary, and B. for being accessory thereto, that if A. is acquitted of the burglary, B. 
 can be ibund guilty as accessory to the larceny. Euss. & By. C. C. 310 ; 2 Marsh. 571. S. C. 
 
 In an indictment against the accessory atone, after the conviction of the principal, it is not 
 necessary to aver that the latter committed the felony, or on the trial to enter into a detail 
 of the evidence adduced against him ; but it is sufficient to recite with certainty the record 
 of the conviction, (It is held not necessary in South Carolina to set out in an indictment 
 against an accessory before the fact in a felony, the conviction or execution of the principal. 
 State v. Sims, 2 Bailey, 29. See State v. Crank, 2 Bailey, 66; 1 Russell, 39,) because the 
 court will presume everything on the former occasion to have been rightly and proporly trans- 
 acted. 7 T R. 465 ; Fost. 365 ; Com. Dig. Justices, T. 3. See 2 Chit. Cr. Law, 5. Ros- 
 coe's Dig. Cr. Ev. 173; 2 Stark. Ev. (5th Amer. ed.) 7; 1 Russell, 39; Commonwealth v. 
 Knapp, 10 Pick. 477. But this presumption must give way to positive evidence of the in- 
 nocence of the principal, which it is fully competent to the supposed accessory to produce. 
 Fost. 121. 365; 3 Campb. 265; Com, Dig. Justices, T. 3; 4 Bla. Com. 324. And, therefore, 
 if it appear on the trial, that the principal was erroneously convicted, the defendant indicted 
 as accessary is entitled to an acquittal. Id. ibid, 
 
 32 
 
97 INDICTMENT. 
 
 And by stat. 14 & 15 Vict. c. 100, s. 15, after reciting that it often 
 happens that the principal in a felony is not in custody or amenable to 
 justice, although several accessories to such felony, or receivers at dif- 
 ferent times of stolen property the subject of such felony, may be in 
 custody and amenable to justice, — for the prevention of several trials, 
 it is enacted that any number of such accessories or receivers may be 
 charged with substantitive felonies in the same indictment, notwith- 
 standing the principal felon shall not be included in the same indict- 
 ment, or shall not be in custody or amenable to justice.(a) 
 
 But this is the only case in which several persons can be joined in 
 the same indictment for several offences committed by them, indepen- 
 dently of each other ; in all other cases it has been holden that, to convict 
 all, a joint offence by all, either as principals in the first, or in the first 
 and second degree, or as principals and accessories, must be proved.(6) 
 
 But although a joint offence is laid, and can be proved, the indict- 
 ment is considered in law as a several indictment against each. And if 
 only one of two defendants so indicted as principals, be in custody, at 
 the time of the assizes or sessions when the indictment ought to be tried 
 he may be tried alone upon it, and whether he be convicted or acquit- 
 ted, the other, when apprehended, may afterwards be tried upon it, and 
 convicted. And so much is such an indictment considered a separate 
 indictment against each, that where three were indicted for burglary 
 and stealing in a dwelling house, and one pleaded guilty, and the two 
 others were convicted of a larceny in the dwelling house only, the 
 judges held that judgments should be entered against the three accord- 
 ingly-^] 
 
 (a)Seeanfe, p. It. 212. 
 
 (6) See R. v. M'Phane et al, Car. & M. (c) if. v. Butterworth et al., E. & Ey. 520. 
 
 [2] Several offenders may also, for different offences of the same kind, be in some cases 
 included in the same indictment, the word "severally" being inserted, which makes it several 
 as to each of them, though the court will, in its discretion, quash the indictment if any ma- 
 terial inconvenience appear to rise from the mode in which it is preferred. 3 T. E. 106 ; 8 
 East, 46 ; Burn, J. Indictment, IV. Thus it has been holden that four persons may be 
 joined for erecting four inns, which prove to be common nuisances, if the word "severally" 
 be inserted, though the want of that word will vitiate. 2 Rol. Eep. 345 ; 2 Hale, 174; 8 
 East, 47 ; Com. Dig. Indictment, P. Bac. Abr. Indictment, G. 5 ; Burn, J. Indictment, IV. 
 Commonmealth v. Mo Cord, 2 Dana, 242. 
 
 And the same rule applies to the keeping of disorderly houses, the same term being in- 
 serted. Id. ibid.; 2 Hale, 174; Burn, J. Indictment, IV. But it seems that to warrant 
 such joinder, the offences must be of the same nature, and such as will admit of the same 
 plea and sentence, or it may operate like a misjoinder in civil proceedings, and be bad upon 
 demurrer, or after a general verdict, in arrest of judgment. 3 T. E. 103, 6; 1 East, 46: 2 
 Campb. 132. In all these cases, however, the charge is several against each individual, and 
 the jury may acquit some, while others are found guilty. Kel. 9 ; Burn, J. Indictment, IV. 
 But there are some exceptions to this rule, as in cases of conspiracy and riot, where one 
 cannot be indicted for an offence committed by himself alone, and the acquittal of so many 
 as shall render it impossible for the rest to have committed the offonoe must, of course, ex- 
 
INDICTMENT, HOW PREFERRED AND FOUND. 97—1 
 
 Where two persons were indicted for murder, A. in the first count 
 being indicted as principal in the first degree, and B. present aiding and 
 abetting, and in the second count B. was indicted as principal in the 
 first degree, and A. with being present aiding and abetting ; and the 
 jury found them guilty, but said they were not satisfied as to which of 
 them actually committed the murder : the judges (Maule, J., dis.) held 
 that the jury were not bound to find the defendants guilty on one of 
 the counts only, but might find them guilty on both.(a) 
 
 7. Indictment, how preferred and found. 
 
 Bills of indictment in ordinary cases are prepared in the in- 
 dictment office at the assizes or sessions, by the proper ~*ofncer [*98] 
 there ; they must be on parchment, and at quarter sessions are 
 usually filled up on blank printed forms. But where the indictment 
 is required to be special, or in any manner different from the common 
 forms, or where any doubt or difficulty occurs as to the manner in 
 which the indictment should be framed, it will be prudent to have it 
 drawn, or at least settled by a barrister : and at the assizes, and at 
 most quarter sessions, the fee paid in this respect is allowed to the pros- 
 ecutor in costs. When drawn by a barrister, it must afterwards be en- 
 grossed on parchment, which is sometimes done by the prosecutor's at- 
 torney, but usually in the indictment office. [1] 
 
 (a) R. v. Downing et al., 1 Den. C. C. 52. 
 
 tend to him. 1 Stra. 193; 12 Mod. 262; 2 Salk. 593; Com. Dig. Information, D. 1 ; 13 
 East, 412. See Penna v. Burton. Addis. 334; State v. 0' Donald, I MoCord, 532; Stater. 
 AUison, 3 Yerger, 428 ; 1 Russell, 267 ; People v. Howell, 4 John. 296; Twrpin v. State, 4 
 Blackf. T2; Commonwealth v. Hansen, 2 Ash. 31. 
 
 And if several be concerned in executing a treasonable or seditious design, it is best to in- 
 clude them in one proceeding, that the evidence for the crown may not be disjointed. Kel. 9. 
 On the other hand, an indictment may be defective for including too many; as for indicting 
 a womau for the murder of her illegitimate child, and another person being present aiding 
 and abetting ; if the only evidence of guilt be the concealment, both the prisoners might be 
 acquitted. 1 East P. C. 229. As each individual is, in all cases, responsible only for his 
 own criminal actions or omissions, the result whether the defendant be indicted alone or with 
 others will be similar, and no inconvenience can arise to the defendants from being jointly 
 indicted: for if, on the trial, the evidence affects them differently, the judge, in his discretion, 
 will select such parts of it as are applicable to each, and leave their cases separately to the 
 jury, in order that each individual may have an impartial trial, unprejudiced by the case of 
 his associates. 3 T. R. 106 ; 8 East, 46. If two be improperly found guilty separately on 
 a joint indictment, the objection may be cured by producing or entering a nolleprosequi as to 
 the one of them who stands second on the verdict. Russ. & Ry. C. C. 344. 
 
 [1] In most cases, the district attorney, on being furnished with the particulars of the of- 
 fence by the prosecutor, will draw the indictment. But in cases where more than ordinary 
 care may be requisite in framing the indictment, it may be drawn by any other counsel. 
 Arch. Cr. PI. 63. The names of the witnesses intended to be examined before the grand 
 jury should be indorsed on the indictment. Id. ib; Russ. & Ry. C. 0. 401. 
 
98 INDICTMENT. 
 
 The names of the witnesses intended to be examined before the 
 grand jury, are then indorsed upon the bill, and the words " sworn in 
 court" added after them. [2] 
 
 The witnesses whose names are thus indorsed upon the bill, come 
 into court ; and the bill being given to the crier or other officer ap- 
 pointed for the purpose, he swears the witnesses, and the bill is then 
 sent before the grand jury. The witnesses must be sworn in open 
 court, and during the time the court is sitting. [3] 
 
 The indictment is next taken by the district attorney to the grand jury, and preferred 
 before them. But two indictments for the same offence, one for a felony under a statute, 
 and another for a misdemeanor at common law, ought not to be -preferred or found at the 
 same time. 1 Leach, 538. 
 
 It is said to be essential to the validity of an indictment, that it should be submitted to 
 the grand jury by the prosecuting officer of the state. Rite v. State, 9 Yerger, 198 ; Fort v. 
 State, 3 Haywood, 98. And it has also been said that his signature is necessary before such 
 submission, though the point has been doubted. Whart. Cr. Law, p. 122. 
 
 [2] The examining magistrate has power, at common law, to bind over the witnesses as 
 well as the defendant, to appear at the next court, and in default of bail, 'to commit them. 
 2 Hale, P. C. 52, 282. Where there has-been a previous examination and binding over, it 
 is customary, immediately at the opening of the court, to call their names; and in case of 
 non-appearance, to secure their attendance by process. The presence of witnesses not under 
 recognizance to attend, is obtained by the ordinary means of a subpoena. 2 N. T. Rev. 
 Stat. 729, s. G3, 64. 
 
 It is the practice for the prosecuting attorney to mark on the back of each bill the names 
 of the witnesses belonging to it; though it has been held that the omission is not fatal. 4 
 M. & S. 208. In Mississippi, it is not neeessary that the grand jury should return witli the 
 indictment the names of the witnesses examined or the evidence. King v. State, 5 How. 
 Miss. Rep. 730. In Massachusetts, where the prisoner's counsel requested that a list of the 
 witnesses before the grand jury should be given, the court granted the application without 
 doubt, remarking that such a request had never been refused. Com. v. Knapp, 9 Pick. 
 Rep. 498. 
 
 If a witness neglect to obey a subpoena, on an affidavit that he was material to the pro- 
 secutor's case, and was duly served with the subpoena, the court will grant an attachment 
 against him. 8 Term Rep. 545 ; 6 ib. 295. If he neglect to appear after a recognizance en- 
 tered into by him, the recognizance will be forfeited, and he will be subject to the conse- 
 quences of such forfeiture. So if he be bound over to appear, and neglect to do so. he may 
 be committed for a contempt. So if he appears, but refuses to be sworn, he may be commit- 
 ted for a contenipt. But though, in general, all must obey a subpoena, it has been held that 
 it is not incumbent on an attorney to deliver up papers confidentially entrusted to him by 
 his client, on a subpoena duces tecum ; though he ought to attend, and when called, object . 
 to their production. 3 Burr, 1687; 9 East, 485, 486. 
 
 [3] In Connecticut, witnesses before a grand jury, are sworn by a magistrate in the grand 
 jury room, and not in court. State v. Fassett, 16 Conn. Rep. 457. In the United States 
 Circuit Court for the Eastern District of Pennsylvania, it was formerly the practice to sum- 
 mon a justice of the peace as one of the grand jury, and to permit him to swear the witnesses 
 in the jury room, (7 Smith's Laws, 686;) but now, the witnesses are sworn in court by the 
 clerk. In Massachusetts, New York, and Pennsylvania, express authority is given by stat- 
 ute to the foreman, to swear witnesses whose names are given to him for the prosecution. 
 Stat, of Mass. of 1807, ch. 140; N. Y. Rev. Stat., part 2, tit. 4, ch. 2, sec. 29; Perm, act of 
 April 5, 1826. 
 
 Unless the witnesses are regularly sworn, the bill founded on their unsupported evidence 
 will be quashed. In U. S, v. Coolidge, (2 Gallison, 364,) a bill was quashed by the court, 
 
INDICTMENT, HOW PREFERRED AND FOUND. 98 — 1 
 
 The witnesses are then called in before the grand jury and examined 
 by them. [4] 
 
 which remarked that if such irregularities were allowed to creep into the practice of grand 
 juries, the great object of their institution would be destroyed. And in North Carolina, in 
 State v. Camm-, (1 Hawk's Rep. 352,) it was held, that where a bill was found on the infor- 
 mation of one of their own body, it was necessary that the prosecuting juror should be regu- 
 larly sworn. 
 
 [4] The grand jury, in general, hear evidence only in support of the charge, and not in 
 exculpation of the defendant; and it has been said that they ought never to hear any other 
 than that which is produced for the crown. 2 Hale, 157 ; 4 Bla. Com. 303 ; Hawk. b. 2, c. 
 25,, 145, in notes. As to the duty of a grand juror, see Gisb. Duties of Man, vol. ii. 419, 
 420. But it may be doubted whether, as they are sworn to present the truth which neces- 
 sarily requires investigation, in case they may not be able to elicit truth from the witnesses 
 for the prosecution, and aro actually convinced of that circumstance, they may not require 
 other testimony to assist them in forming their decision. Dick. Sess. 116, and see Jac. Die. 
 Indictment; Gisb. Duties of Man, vol. ii. 419, 420. The true intention seems to be, that 
 prima facie the grand jury have no concern with any testimony but that which is regularly 
 offered to them with the bill of indictment, on the back of which the names of the witnesses 
 are inserted ; their duty being merely to inquire whether there be sufficient ground for put- 
 ting the accused party on his trial, before another jury of a different description. But if they 
 are unable to satisfy themselves of the truth sufficiently to warrant their determination, they 
 may properly seek other information relative to mere facts, but further than this they cannot 
 proceed. Dick. J. Indictment. IT. ; Dick. Sess. 117; Burn. J. Indictment, V. Formerly, 
 indeed, it was laid down that the grand jury ought to find the bill if probable evidence can 
 be adduced to support it, because it is only an accusation, and the prisoner will afterwards 
 defend himself before a more public tribunal. 2 Hale, 157. But groat authorities have 
 taken a more merciful view of the subject, and considering the ignominy, the dangers of per- 
 jury, the anxiety of delay, and the misery of a prison, have argued that the grand inquest 
 ought, as far as the evidence before them goes, to be convinced of the guilt of the defendant. 
 Per Sir John Hawles, 4 St. Tr. 183 ; 3 St. Tr. 416 ; 5 St. Tr. 3 ; 4 Bla. Com. 303 ; 2 Woodes. 
 559; 2 Hale, 61. What was, therefore, anciently said respecting petit treason, (3 Inst. 
 25; and see Gisb. Duties of man, vol. ii. 419, 420.) may be applied to all Other offences, 
 that since it is preferred in the absence of the prisoner, it ought to be supported by sub- 
 stantial testimonies. 
 
 Judge Wilson, in examining the position that a. prima facie case is all that is necessary 
 for a grand juror's purpose, remarks : "It is a doctrine which may be applied to countenance 
 and promote the vilest and most oppressive purposes. It may be used in pernicious rotation, 
 as a snare in which the innocent may be entrapped, as a screen under cover of" which the 
 guilty may escape." Wilson's Works, ii. 365. Mr. Smith, editor of the Laws of Pennsyl- 
 vania, (Smith's Laws, vol. 7, p. 687 ;) Mr. Daniel Davis, for many years solicitor-general of 
 Massachusetts, (Davis' Precedents, 25;) and professor J. Davis, of Virginia, (Davis' Cr. Law, 
 426.) coincide in opinion with Judge Wilson. On the other hand, in Eesp. v. ScJtaeffer, (1 
 Dallas' Rep. 237,) M'Kean, C. J., in charging a grand jury in Pennsylvania, remarked: "The 
 bills or presentments found by. a grand jury amount to nothing more than an official accusa- 
 tion, in order to put the party accused upon his trial : till the bill is returned, there is, there- 
 fore, no charge from which he can be required to exculpate himself; and we know that many 
 persons, against whom bills were returned, have been afterwards acquitted by a verdict of 
 their country. Here, then, is the just line of discrimination. It is the duty of the grand 
 jury to inquire into the nature and probable grounds of the charge ; but it is the exclusive 
 province of the petty jury, to hear and determine, with the assistance, and under the direc- 
 tion of the court, upon points of law, whether the defendant is or is not guilty, on the whole 
 evidence, for and against him. You will, therefore, readily perceive, that if you examine 
 the witnesses on botli sides, you do not confine your consideration to the probable grounds 
 
98 — 2 INDICTMENT. 
 
 Sometimes a difficulty occurs before the grand jury, where the wit- 
 ness is not able to identify the prisoner by name, as the person who 
 
 of charge, but engage completely in the trial* the cause ; and your return must consequently 
 be tantamount to a verdict of acquittal or condemnation. But this would involve us in an- 
 other difficulty; for, by the law, it is declared that no man shall be twice put in jeopardy for 
 the same offence; and yet it is certain that the inquiry, now proposed by the grand jury 
 would necessarily introduce the oppression.of a double trial. Nor is it merely upon maxims 
 or law, but, I think, likewise upon principles of humanity, that this innovation should be op- 
 posed. Considering the biU as an accusation grounded entirely on the testimony in support 
 of the prosecution, the petit jury receive no bias from the sanction which the endorsement 
 of the grand jury has conferred upon it. But, on the other hand, would it not, in some degree 
 prejudice the most upright mind against the defendant, that on a full hearing of his defence 
 another tribunal had pronounced it insufficient? which would then be the natural inference 
 from every true bill. Upon the whole, the court is of opinion that it would be improper and 
 illegal to examine the witnesses on behalf of the defendant, while the charge against him 
 lies before the grand jury." 
 
 We are strongly of the opinion that a grand jury should use their discretion with great 
 caution, and only indict upon the most ample and satisfactory testimony. It is unnecessary 
 to comment upon the evil consequences that would flow from a different cause. Judge 
 Blackstone, in speaking on the subject of finding of an indictment by a grand jury, says it 
 is only in the nature of an accusation which is only to be tried and determined and the 
 grand jury are only to inquire k upon their oaths, whether there be sufficient cause to call 
 upon the party to answer it. But the same learned judge, in a subsequent sentence appears 
 to qualify the preceding one, by saying that a grand jury however ought to_be th6rougly 
 persuaded of the truth of an indictment so far as their evidence goes ; and not to rest satis- 
 fied merely with remote probabilities: a, doctrine that might be applied to very oppres- 
 sive purposes. 4 Black. Com. 303; 4 State Trials, 183." 
 
 Thejearned editor of Hale's History observes upon this subject, that Sir John Hawles, in 
 his remarks on the case of the Earl of Shaftesbury, (4 St. Tr. p. 183,) unanswerably shows 
 that the grand jury ought to have the same persuasion of the truth of the indictment, as a > 
 petty jury or a coroner's inquest ; for they are sworn to present the truth, and nothing but 
 the truth. 
 
 And Lord Coke in -speaking on the same subject, says: that seeing indictments are the 
 foundation of all, and are commonly found in the absence of the party accused, it is neces- 
 sary there should be substantial proof. 3 Inst. 23. 
 
 Let the grand jury test the truth of the testimony as follows : 
 
 1. By a cross examination, in which if the prosecutor contradict himself on any material 
 point, then by a rule of evidence this contradiction in his testimony, if it should not be suffi- 
 cient to do away the force of it altogether, at least ought to create such doubts in the minds 
 of the grand jury as to authorize them to dismiss the complaint. 
 
 2. By the examination of other witnesses who were present at the time of the commission 
 of the alleged offence, and who might confirm or totally invalidate the testimony of the 
 prosecutor. 
 
 3. By the examination of witnesses in order to ascertain the character of the prosecutor 
 and of the defendant. Of the former, for varacity and truth, and of the latter for integrity 
 and a peaceable demeanor. 
 
 Let us suppose the character of the presecutor, somewhat doubtful as to truth and vera- 
 city. 
 
 Let us also suppose the charge brought against the defendant to be either of an ignomini- 
 ous or violent nature, and that it should turn out in evidence before the grand jury, that he 
 was a man of integrity and of a peaceable demeanor ; ought not a grand jury to require 
 more than ordinary testimony to indict such a man ; ought not his character for integrity 
 and peaceable demeanor to have great effect in the minds of a grand jury in shielding him 
 from such a prosecution, and wili his acquittal by a jury always be a sufficient consolation 
 
INDICTMENT, HOW PREFERRED AND FOUND. 98 — 3 
 
 committed the offence. In a case of this kind, where five men were 
 indicted for a rape and robbery, and the prosecutrix, although she 
 could identify the prisoners upon seeing them did not know their names, 
 — the grand jury feeling a difficulty from want of evidence of identity 
 came into court and stated the matter to the judge: the judge (Tindal, 
 C. J.,) told them, that they might call some other witness on the back 
 of the bill, who was present when the prisoners were before the mag- 
 istrates, and upon the prosecutrix describing the prisoners, that witness 
 would probably be able to state their names ; but if the prisoners, could 
 not be identified in that mode, they should be brought before the grand 
 jury.(a) 
 
 If a majority of the grand jury (amounting to twelve at the least) 
 ,be of opinion that the evidence adduced before them, makes out a suf- 
 ficient case against the prisoner, to warrant his being put upon his trial 
 
 (a) B. v. Jenkins et al, 1 Car. & K. 536. • 
 
 to an honest man who has undergone the paiu and mortifleatiou of a trial in a court of 
 justice. 
 
 With respect to the kind of evidence which a grand jury may receive, it should be observ- 
 ed, that they are bound to take the best legal proof of which the case admits, and it must 
 be given on oath (Hawk. b. 2, c. 25, s, 138. If witnesses go before the grand jury without 
 being sworn, and the bill is found, and the prisoner is tried and convicted, it is proper to re^ 
 commend him for a free pardon, (Russ. & Ry. C. C. 401 ;) and, therefore, the jury cannot, on 
 suspicion that a witness Jias been tampered with by the prisoner, receive in evidence his 
 written examination in lieu of his parol testimony, and the court will resist an application 
 for the depositions. 1 Leach, 514; Hawk. b. 2, c. 25, s. 138, 139. And, upon the same 
 ground, on an indictment for perjury in an affidavit made in chancery, they should have the 
 original document, and a mere office copy will not suffice ; (1 Sch. & Lef. 232 ; 3 Camp. 401. 
 As to what sufficient proof of the defendant's having been duly sworn, see 2 Burr. 1189 ; 
 3 Campb. 608,) so evidence of what third persons said will not be good, in order to support 
 a bill before the grand inquest. 6 T. R. 294 ; Hawk. b. 2, c. 25, s 139. But an accomplice 
 may give evidence before them to support a bill of indictment against the partaker of his 
 guilt ; and a bill so found will be sufficient, even though he had not been previously admit- 
 ted as king's evidence, but had been taken from prison to give evidence by means of an 
 order altogether surreptitious and illegal. 1 Leach, 155. But the grand jury ought not to 
 find an indictment upon the testimony of incompetent witnesses as of those who have been 
 convicted of conspiracy, or other infamous crime ; and, therefore, if in case a bill be present- 
 ed to them, with such witnesses alone indorsed, on application to the court they will be di- 
 rected to reject it. Hawk. b. 2, c, 25, s. 145, in note?. It may, however, be proper to ob- 
 serve, that the prosecutor, however injured by the crime alleged to have been committed, is, 
 in genera], a competent witness, except in a case of forgery, because the finding of the jury 
 cannot be given in evidence in his favor upon the trial of a civil action, and the proceedings 
 are regarded as for the public benefit, and not the gratification of private feelings, or the re- 
 covery of private property. Hawk. b. 2, c. 25, s. 145, in notes; 4 East, 582. And even in 
 the excepted case of forgery, the party whom the fictitious instrument is intended to defraud, 
 may be rendered competent by a release. 1 Leach, 150, 157 ; 2 East, P. C. 1003. If the 
 jury have any doubt with respect to the propriety of admitting any part of the evidence 
 offered to them, they may pray the advice of the court which is sitting. Hawk. b. 2. c. 25, 
 s. 145, in notes; Dalt. J. c. 185, s. 9 ; 3 Harg. St. Trials, ill ; 4 Bla. Com. 303, n. 1 ; 2 Hale, 
 159, 160. 
 
98 — i INDICTMENT. 
 
 before the petty jury, the foreman indorses on the bill " a true bill," and 
 signs his name to it, " J. N., foreman." But if a majority of the grand 
 jury be of a different opinion, then the words "not a true bill" are in- 
 dorsed. [5] And here it may be necessary to remark, that it is not the 
 
 [5] After the grand jury have heard the evidence, they are to decide whether the bill 
 shall be found or rejected. In the finding, twelve of the jurymen, at least, must concur, but 
 it the rest of the jury dissent, the finding will still be valid. 2 Hale, 161 ; 4 Bla. Com. 306. 
 Bac. Abr. Juries, A. The jury cannot find one part of the same charge to be true, and 
 another false, but they must either maintain or reject the whole ; and therefore, if they in- 
 dorse a bill of indictment for murder, " billa vera m defendendo," or billa vera for manslaughter 
 and not for murder, the whole will be invalid, and may be quashed on motion. 2 Bol. Rep. 
 52; 3 Bulst. 206; 1 Eol. Rep. 407, 8; 1 Sid. 230; Cowp. 325; 2 Hale, 158; Hawk. b. 2, 
 c. 25, s. 2; Com. Dig. Indictment, A.; Bac. Ab. Indictment, D. Cro. C. C. 32; Burn, J. In- 
 dictment, TIL ; but in 3 Burn, J. 24th edit. 44, a case is cited where it is said the jury may 
 find a true bill for manslaughter only on an indictment for murder. It has indeed been said, 
 that if a grand jury find a bill for manslaughter on an indictment for murder, the words " of 
 malice aforethought," and " did murder," may be struck out, and the indictment amended by 
 reducing it to a mere accusation of the inferior offence in the presence of the jury. 2 Hale 
 162.; Bac. Abr. Indictment, D. This, however, seems questionable, and it is agreed, that it 
 is the safer course to prefer a fresh indictment lor manslaughter; and so where the bill is 
 originally for burglary, to prefer an indictment for theft, which is, in substance, included. 2 
 Hale, 162; Bac. Abr. Indictment, D. This rule, however, does not extend to the finding of 
 different counts; for, as each count contains a distinct charge; the jury may return a true bill 
 upon one of them only, and the finding will be as valid as if no other had ever been inserted. 
 1 Cowp. 325; Hawk. b. 2, c. 25, ». 2; Com. Dig. Indictment, A. in notes; Bac. Abr. In- 
 dictment, D.; Cro. C. C. 32; Burn, J. Indictment, VII. and Jurors VI. - And an indictment 
 against several may be found against one or more, and rejected as to the rest. Jt is said in- 
 deed, that in case ot an indictment for murder being presented, though it appears to the jury 
 that the facts amount only to manslaughter or justifiable liomicide, yet if the fact of the kill- 
 ing by the defendant be established, they ought to find the bill for murder, in order to ensure 
 the future security of the defendant; for, if they throw out the bill, he may, at any distance 
 of time, be again indicted, which can never take place after an open acquittal. 2 Hale, 158; 
 Bac. Ab. Indictment, D. It is a rule, that the finding of the jury must be absolute and con- 
 ditional; and therefore a finding "si domus non fuit in possessione domince regince time billa 
 vera," is of no avail, and cannot be made the foundation of any further proceedings. Yelv. 
 15 ; Hawk. b. 2, c. 35, s. 2; Com. Dig. Indictment, A.; Bac. Abr. Indictment, D. So, if in 
 case of libel, they find " billa vera" as to the words " sed uirum maliciose ignoramus" for 
 nothing can be done upon such a presentment. 2 Leon. 287 ; Hawk. b. 2, u. 25, s. 2 ; Com. 
 Dig. Indictment, A., Bac. Abr. Indictment, D. 
 
 During the whole of their proceedings, the grand jury are protected in the discharge of 
 their duty, and no action or prosecution can be supported against them in consequence of 
 their finding, however, it may be dictated by malice, or destitute of probable foundation. 
 Hawk. b. 1, c. 72, s. 5; 2 Hale, 162; 1 T. R. 513, 14, 535; 1 Lord Eaym. 469. 
 
 "When the grand jury are in session, they aro completely under the control of the court, 
 and the court may, at any time, re-commit an imperfect finding to them, or may poll them, 
 or take any other method on the suggestion of a defendant, of determining whether twelve 
 assented to the bill. State v. Squire, 2 New Hamp. Rep. 558 ; Lewis' case, 4 Greenl. 
 Rep. 448. 
 
 The mode in which the grand jury formerly returned the result of their inquiries to the 
 court, was, by indorsing on the back of the bill, if thrown out, "ignoramus,'' or "we know 
 nothing of it," intimating, that though the accusation might possibly be true, no facts had 
 appeared-in evidence to warrant that conclusion; and if found "billa vera," or, if there were 
 several returned at the samo time, quod separates presented sunt bilks verm." Com. Dig. In- 
 
INDICTMENT, HOW PREFERRED AND FOUND. 98—4 
 
 duty, or within the province of a grand jury, to go so minutely into 
 the case, as to satisfy themselves of the guilt or innocence of the pris- 
 oner, — or in other words, to try the case ; their duty is confined sim- 
 ply to ascertaining whether there is sufficient evidence against 
 him, to warrant his being put upon his trial ; *it is for the pet- [*99] 
 ty jury afterwards to declare upon his guilt or innocence. The 
 grand jury, having found one or more bills, come into court, and hand 
 them to the clerk of arraigns at the assizes, or the clerk of the peace 
 at sessions, who thereupon addresses them thus: " Gentlemen of the 
 grand jury, you are content that the court shall amend all matters of form, 
 altering no matter of substance : — Against A. B., for \_felony or a misde- 
 meanor] you find a true bill; — against C. D.,for" &c. The indictments 
 are then filed by the officer, in the order in which he has thus received 
 and called them over ; but in what order they are to be afterwards 
 tried, will depend upon the directions of the judge or the practice of 
 the court. [1] 
 
 dictment, A. And.it was holden, that if the indorsement was " quce est billa vera," instead 
 of " quod est," the finding was defective. 8 Mod. 296; Com. Dig. Indictment, A. But, at 
 the present day, the indorsement is in English absolutely ; if found, " a true bill, - ' and if 
 rejected, " not a true bill," or, which is the better way, "hot found;" in which case the 
 party is discharged without further answer. 4 Bla. Com. 305. The indorsement "a true 
 bill," made upon the bill, becomes part of the indictment, and renders it a complete accusa- 
 tion against the prisoner. Telv. 99 ; Com. Dig. Indictment, A. 
 
 An indictment, without such endorsement signed by the foreman, is a nullity. Nomaque 
 v. People, 1 Breese R. 119 ; Webster's case, 5 Greenl. 432 ; see State v. Creighton, 1 Nott & 
 M'Cord, 256. . The words " a true bill " must be indorsed on every bill so found; but there 
 is no law (in Kentucky) requiring that they shall be signed by the foreman of the grand 
 jury either with or without a designation of his character as foreman. The omission of the 
 foreman to add " foreman '' to his name in signing the indorsement upon a true bill, (which 
 he had signed at the foot with that addition) is no ground for a quashal. Commonwealth v. 
 Walters, 6 Dana, 290. 
 
 It has been held that if after the indictment is found, it is altered by the prosecuting 
 attorney and submitted, thus changed to the grand jury who again return " true bill " thereon, 
 such informality will not destroy the indictment. State v. Allen, Charlton's Geo. Rep. 518. 
 It is better, however, in such case, for a new and more regular bill to be framed and sent 
 to the grand jury for their finding. 
 
 [1] When the jury have made these endorsements on the bills, they bring them publicly 
 into court, and the clerk of the court calls all the jurymen by name, who severally answer 
 to signify that they are present ; and then the clerk of the peace, or assize, asks the jury 
 whether they have agreed upon any bills, and bids them present them to the court, (4 Bla. 
 Com. 366; Cro. C. C. 1 ; see form, Cro. C. C. 1 ;) and then the foreman of the jury hands 
 the indictments to the clerk, who asks them if they agree the court shall amend matter of 
 form, altering no matter of substance to which they signify their assent. , Cro. C. C. 1 ; Dick. 
 Sess. 158; see form, Cro. C. C. 1 ; Dick. Sess. 158, last vol. London edit. This form is 
 necessary, in order to enable the court to alter any clerical mistake, because they have no 
 authority to change the form of the accusation, without the consent of the accusers. R. T. 
 H. 203 ; 2 Stra. 1026 ; 1 Ch. C. L. 324. The finding should then be recorded by the clerk, 
 and an omission in that respect cannot be supplied by the endorsement of the foreman, nor 
 by the recital in the record, that the defendant stands indicted, nor by his arraignment, nor 
 by his plea of not guilty. It cannot be intended that he was indicted; it must be shown 
 
 33 
 
99 INDICTMENT. 
 
 Where the bill is against two or more defendants, the grand jury 
 may find a " a true bill " as to one or more, and "not a true bill " as to 
 the others. So, where the bill contains two counts, the grand jury may 
 find "a true bill" as to one count, and "not a true bill" as to the other, 
 (a) They cannot however find a true bill as to part of a count, and 
 ignore the rest of it.(6) It is laid down indeed in the old text books, 
 that where a bill for murder is preferred to a grand jury at the assizes, 
 they may find it a true bill for manslaughter. But this is not done in 
 modern practice ; if a grand jury now intimate to the court their wish 
 to find a true bill for manslaughter only, the judge will order the bill 
 to be altered, so as to make it a bill for manslaughter, and will direct it 
 to be again laid before the grand jury. If the jury ignore a bill, no 
 other bill against the same party for the same offence, can be preferred 
 during the same assizes or sessions.(e) 
 
 (a) In what cases defendant to have a copy. 
 
 In. all cases of prosecutions for misdemeanors, instituted by the at- 
 torney or solicitor general, the court shall; if required, order a copy of 
 the information or indictment, free of expense, to be given to the party, 
 
 (a) B. v. FieWhouse, Cowp. 325. (c) B. v. Humphreys, Car. & M. 601. 
 
 (6) 2 Hawk. c. 25, s. 2. 
 
 by the record of the finding. The recording of the finding of the grand jury, it is said, is aa 
 essential as the recording of the verdict of the petit jury. Com. v. Gawood, 2 Virg. Cases, 
 527. At common law, a member of the grand jury was incompetent to testify as to what 
 had been the evidence of witnesses examined before them. But now, it seems a witness 
 may be indicted for perjury on account of false testimony before a grand jury, and grand 
 jurors are competent witnesses to prove the facts. State v. Fassit, 16 Conn. Eep. 45V ; 
 Thomas v. Com. 2 Eobinson, 795; Crocker v. State, Meig's Rep. 127. In New York, mem- 
 bers of the grand jury may be required by any court, to testify whether the testimony of a 
 ■witness examined before such jury, is consistent with or different from, the evidence given 
 by such witness before such court ; and they may also be required to disclose the testimony 
 given before them by any person, upon a complaint against such person for perjury, or upon 
 his trial for such offence ; but in no case can a member of a grand jury be obliged or allowed 
 to testify or declare, in what manner he or any other member of the jury voted on any 
 question before them, or what opinions were expressed by any juror in relation to any such 
 question. N. T. Rev. Stat. pt. 4, ch. 2, tit. 4, art. 2, sec. 31. But in New Jersey, it has 
 been held that a grand juror is not admissible to prove that a witness who had been ex- 
 amined, swore differently in the grand jury room. Imlay v. Harris, 2 Halst. 347. 
 
 In Massachusetts, it is provided by statute, " that no grand juror or officer of a court 
 shall disclose the fact that an indictment for a felony, has been found against any person, 
 not in custody or under recognizance, until such person is arrested ; and that no grand 
 juror shall be allowed to state, or to testify in any court, in what manner he, or any other 
 member of the jury voted on any question before them, or what opinion was expressed by 
 any juror in relation to such question." Rev. Stat, of Mass. ch. 136, sees. 13, 14. 
 
 Generally speaking, an affidavit of a grand juror will not be received to impeach or affect 
 the finding of his fellows. But where a grand juror was guilty of gross intoxication while 
 in discharge of his duty as such, the court, on a presentment of such fact, by the rest of the 
 grand jury, ordered a bill to be preferred against him. Pern. v. Keffer, Addison Rep. 290. 
 
INDICTMENT, IN WHAT OASES AMENDABLE. 99 — 1 
 
 after appearance.(a) And in prosecutions for high treason, a copy of 
 his indictment shall be delivered to him ten days before his trial.(6) 
 But in no other case is the defendant entitled to it. The court, indeed, 
 at the time of his arraignment, will order the indictment to be read over 
 slowly to him ; but no more. If however a prisoner be defended, this. 
 will be of little importance, as his counsel will have free access to the 
 indictment. As to the defendant's right to have a copy of the deposi- 
 tions taken before the committing magistrate ;(c) [2] 
 
 8. Indictment, in what cases amendable. 
 
 An indictment could not be amended at common law^ nor 
 was it within any of the old statutes of amendments.(d ) *But £*100] 
 now, by some modern and recent statutes an indictment may 
 be amended, for the defects I am now about to enumerate. [1 J 
 
 (a) 1 G. 4, v. 4, s. 8. (c) See ante, p. 51. 
 
 (i) 7 Ann. u. 21, s. 11. (d) 2 Hawk. e. 25. ss. 97, 98. 
 
 [2] At common law the defendant was not, in cases of treason or felony, entitled to a 
 copy of the indictment. 1 Lev. 68 ; 2 Hale, 236 ; 4 T. E. 692 ; 2 Hawk. eh. 29, § 13. Al- 
 though a defendant acquitted of felony could not bring an action against the prosecutor of 
 the indictment without obtaining a copy of the record of the indictment and. acquittal, yet 
 he could not have a copy without leave of the judge; and the judge would not grant it if 
 there was a probable cause for the indictment. Matt. Dig. 282. Thus trying the whole 
 question of the guilt or innocence of the party indicted, upon a motion for a copy of the in- 
 dictment ! 
 
 The revised statutes have done away with this unreasonable and harsh rule. Every per- 
 son indicted for any offence, who shall have been arrested upon process issued upon such 
 indictment, or who shall have duly entered into recognizance to appear and answer to such 
 indictment, shall, on demand, and on paying the fees allowed by law therefor, be entitled to 
 a copy of the indictment and of all indorsements thereon. 2 E. S. 128, § 53. 
 
 [1] At common law as the indictment is the finding of a jury upon oath, it eannot be 
 amended without the concurrence of the grand inquest by whom it is presented. And it 
 is the common practice for the grand jury to consent, at the time they are sworn, that the 
 court shall amend matters of form, altering no matter of substanee. Mere informalities may 
 therefore be amended by the court, before the commencement of the trial; though it was 
 formerly the practice to award processs to the grand jury to come into court and amend 
 them. 
 
 But though the caption like the indictment itself, may, if defective, be either quashed by 
 the court or demurred to on the part of the defendant, it differs materially from it in its 
 capacity of amendment, for the return to the court is merely a ministerial act, and ministe- 
 rial acts may be amended at any time according to the common law. 1 Saund. 249, 250, a • 
 3 Mod. 167 ; Comb. 70, 73. It has, indeed, been frequently holden, that a mistake of the 
 clerk in making up the record can be amended only in the term in which the return is made, 
 and not at any subsequent period ; (Sir W. Jones, 420 ; 1 Eoll. Ab. 196 ; Style, 85 ; 8 Co. 
 156, 157; Bro. Ab. Amendment, 32; 2 Sess. Cas. 9; 1 Sid. 155, 175; 2 Hale, 168; 2 Ld. 
 Eaym. 968, 1039; 6 Mod. 273, 278; 1 Vent. 344; Hawk. b. 2, c. 25, s. 97; Bac. Abr. 
 Indictment, G-. 11,) but the contrary has also been often determined, (3 Mod. 167 ; Comb. 
 73, Cro. Jac. 592, 276, 7 ; 1 Stra. 138 ; 2 Ld. Eaym 1518 ; 4 Burr. 2527 ; 1 Sid. 244 ; 2 
 Bulstr. 35 ; 2 Stra. 843 ; 4 Bla. Com. 407 ; 2 Eoll, Eep. 59,) and is so settled after consider- 
 able investigation, upon the ground that ministerial acts are at any time amendable, and that 
 
100 INDICTMENT. 
 
 (a) For variance as to written instruments. 
 
 By stat. 9 G. 4, c. 15, any court of oyer and terminer and general 
 jail delivery, if such court shall see fit so to do, may cause the record 
 on which any trial may be pending before any such court, in any indict- 
 ment or information for any misdemeanor, [or for any offence whatever, J 
 (a) when any variance shall appear between any matter in writting or 
 in print produced in evidenc and the recital or setting forth thereof 
 upon the record whereon the trial is pending, to be forthwith amended 
 in such particular, by some officer of the court, on payment of such 
 costs (if any) to the other party as such court shall think reasonable ; 
 and thereupon the trial shall proceed, as if no such variance had ap- 
 peared. These two statutes expressly confined this power of amend- 
 ment to courts of oyer and terminer and general jail delivery. They 
 did not therefore extend to courts of quarter sessions ; for although 
 
 / 
 
 (a) 11 & 12 Vict, a' 46, s. 4. 
 
 the alteration in the caption is- not to alter the return, but to make the copy correspond with 
 the original. 1 Saund. 249, n. 1 ; 4 East, 1*75 ; 3 Mod. 167. And agreeably to this reso- 
 lution the return to the writ of certiorari has been amended by rule of court, by inserting 
 the time when the quarter sessions were holder), and the names of the justices who were 
 present, and the names of the jurors by whom the indictment was presented, though the 
 latter is now unnecessary ; and the entry-roll and record of Nisi Prius have been altered to 
 mate them agree with the amended caption after the term in which the certiorari was 
 returned, and even after, a general verdict of guilty. 4 East, 175, 6 ; 3 Mod. 167. ' But it 
 has been said, that the caption of an inquisition cannot be amended at any time after it is 
 filed, any more than the body, because it is drawn at the time with the indictment itself and 
 forms a part of the accusation, while in other cases it is merely made up from the schedule 
 by the clerk of the court, as its ministerial officer. Hawk. b. 2, u. 25, s. 97 ; but see Stark. 
 261. 
 
 Criminal informations which are not found upon the oath of a jury, may be amended by 
 the court, and even by a single judge at chambers, at any time before trial. 4 Burr. 2527, 
 "^568, 2569. And a mere clerical error in the caption, and not the body of the information, 
 may be rectified even after verdict. 3 Mod. 167. The reason assigned for this difference is 
 that informations are originally framed by the prosecuting officer, while indictments are the 
 accusations of a number of men sworn to inquire and decide according to evidence. 
 
 This reason seems decidedly to establish the position, that no indictment is amendable by 
 the court without leave of those by whom it is found ; but it has been said, that whenever 
 amendments are made by the common law, there is no distinction between criminal and 
 civil cases ; (1 Saund. 250, d. note 1,) and a distinction has been suggested between felonies 
 ^nd misdemeanors, and that an amendment is allowable in the latter, though not in the 
 former. Stark. 252, 3, 4, 5. But it is manifest that every description of indictment is alike 
 the rinding of a grand jury, and the reason being similar, the conclusion cannot vary. It 
 must indeed be granted, that instances are to be found where the court have taken upon 
 themselves to amend ; (11 Hen. 6 f. 2, and f. 14 ; 2 Bulst. 35 ; 6 Mod. 285. See also cases, 
 1 Saund. 250, d. u. note 1,) but these cases prove nothing in favor of the distinction, as they 
 are for capital felonies ; and, therefore, if they show anything, they prove that criminal 
 proceedings may, in any case be amended, which can never be contended at the present day, 
 Upon principle, therefore, as well as the current of authorities, it seems, that no indictment 
 can be amended without the consent of the jury, who act as accusers. 
 
FOR VARIANCE IN OTHER RESPECTS. 100 — 1 
 
 justices of the peace by their commission Lave a power to Lear and de- 
 termine, tLe court of quarter sessions is not in law a court of oyer and 
 terminer. But this was remedied, and tLe above statutes extended to 
 the court of quarter sessions, by stat. 12 & 13 Vict. c. 45, s. 10. 
 
 (b) For variance in oilier respects. 
 
 By stat. 14 & 15 Vict. c. 100, s. 1, whenever on the trial of any in- 
 dictment for any felony or misdemeanor, tLere shall appear to be any 
 variance between the statement in such indictment and the evidence 
 offered in proof thereof, — in the name of any county, riding, division, 
 city, borough, town corporate, parish, township, or place mentioned or 
 described in any such indictment, — or in the name or description of any 
 person or persons, or body politic or corporate, therein stated or alleged 
 to be the owner or owners of any property, real or personal, which 
 shall form the subject of any offence charged therein, — or in the name 
 or description of any person or persons, body politic or corporate, 
 therein stated or alleged to be injured or damaged or intended to be in- 
 jured or damaged by the commission of such offence, — or in the chris- 
 tian name or surname, or both christian name and surname, or other 
 description whatsoever, of any person or persons whomsoever therein 
 named or described, — or in tLe name or description of any matter or 
 thing wLatsoever tLerein named or described, — or in the ownership of 
 any property named or described therein, — it shall and may be lawful 
 for the court, before which the trial shall be had, if it shall consider such 
 variance not material to the merits of the ease, and tLat the de- 
 fendant cannot be prejudiced thereby in his defence on *such [*101] 
 merits, to order sucL indictment to be amended, according to 
 tLe proof, by some officer of tLe court or otLer person, botb in tLat 
 part of tLe indictment where such variance occurs, and in every other 
 part of the indictment wLicL it may become necessary to amend, on 
 sucL terms as to postponing tLe trial to be Lad before the same or an- 
 other jury, as such court shall think reasonable; and after any such 
 amendment, the trial shall proceed, whenever the same shall be pro- 
 ceeded with, in the same manner in all respects, and with the same con- 
 sequences, both with respect to the liability of witnesses to be indicted 
 for perjury and otherwise, as if no such variance had occurred; and in 
 case such trial shall be had at nisi prius, the order for the amendment 
 shall be endorsed on the postea, and returned together with the record 
 and thereupon such papers, rolls, or other records of the court from 
 which sucL record issued as it may be necessary to amend sLall be 
 amended accordingly by tLe proper officer; and in all otLer cases, the 
 order for the amendment shall either be endorsed on the indictment, or 
 shall be engrossed on parchment, and filed together with the indictment 
 among the records of the court : provided that in all such cases where 
 
101 INDICTMENT. 
 
 the trial shall be so postponed as aforesaid, it shall be lawful for such 
 court to respite the recognizances of the prosecutor and witnesses, and 
 of the defendant, and' his surety or sureties, if any, accordingly, in 
 which case the prosecutor and witnesses shall be bound to attend to pros- 
 ecute and give evidence respectively, and the defendant shall be bound 
 to attend to be tried, at the time and place to which such trial shall be 
 postponed, without entering into any fresh recognizances for that pur- 
 pose, in such and the same manner as if they were originally bound by 
 their recognizances to appear and prosecute or give evidence at the time 
 and place to which such trial shall have been so postponed: provided 
 also, that where any such trial shall be to be had before another jury, 
 the crown and the defendant shall respectively be entitled to the same 
 challenges as they were respectively entitled to before the first jury was 
 sworn. [1] 
 
 [1] In New York it is provided by statute, that no indictment shall be deemed invalid, 
 nor shall the trial, judgment, or proceedings therein be affected : 1st. By reason of having, 
 omitted the addition of the defendant's title, occupation estate or degree ; or by reason of 
 the mis-statement of such matter, or of the town or county of his residence, when the defend- 
 ant shall not be misled or prejudiced by such mis-statement; or, 2d. By the omission of the 
 words " with force and arms," or words of similar import; or 3d. By reason of omitting to 
 charge any offence to have been committed contrary to a statute or several statutes, notwith- 
 standing such offence may have been created or the punishment thereof may have been de- 
 clared, by any statute; or 4th. By reason of any other defect or imperfection in matter of 
 form, which shall not tend to the prejudice of the defendant. 2 N. T. Rev. Sta. p. 128, sec. 
 52. 
 
 There are statutes similar to the foregoing, in Massachusetts, Michigan, and Wisconsin. 
 Rev. Stat, of Mass. ch. 137, sec. 14; Eev. Stat, of Mich. ch. 164, sec. 34; Rev. Stat, of 
 Wis., ch. 148, sec. 15. In Virginia the statute (R6V. Code of Virginia of 1849, p. 770,) pro- 
 vides: "No indictment or other accusation shall be quashed or deemed invalid for omitting 
 to set forth, that it is upon the oaths of the jurors, or upon their oaths and affirmation ; or 
 for the insertion of the words " upon their oath," instead of " upon their oaths," or for not in 
 terms alleging, that the offence was committed "within the jurisdiction of the court," when 
 the averments show that the case is one of which the court has jurisdiction ; or for the 
 omission or mis-statement of the title, occupation, estate or degree of the accused, or of the 
 name or place of his residence ; or for omitting the words " with force and arms" or the 
 statement of any particular kind of force and arms ; or for omitting to state, or stating im- 
 perfectly the time at which the offence was committed, when time is not the essence of the 
 offence; or for failing to allege the value of an instrument which caused death, or to allege 
 that it was of no value ; or for omitting to charge the offence to be " against the form of the 
 statute," or statutes; or for the omission or insertion of any other words of mere form or sur- 
 plusage. Nor shall it be abated for any misnomor of the accused: but the court may, in 
 case of a misnomer appearing before or in the course of a trial, forthwith cause the indict- 
 ment or accusation to be amended according to the fact. 
 
 " Judgment in any criminal case, after a verdict, shall not be arrested or reversed, upon 
 any exception to the indictment or other accusation, if the offence be charged therein with 
 sufficient certainty for judgment to be given thereon, according to the very right of the 
 case." 
 
 In Mississippi the statute (Hutchinson's Miss. Code, 1005,) provides that: " No person 
 accused of any criminal offence, shall be set at liberty before his trial, on account of any 
 irregularity or informality in the warrant of commitment; nor after conviction, on account 
 
INDICTMENTS, WHEN AND HOW QUASHED. 101 — 1 
 
 And by sect.- 2, every verdict and judgment which shall- be- given 
 after the making of any amendment under the provisions of this Act, 
 shall be of tBe same force and effect in all respects as if the indictment 
 had originally been in the same form in which it was after such amend- 
 ment was made. 
 
 By sect. 3, if it shall become necessary at' any time for any purpose 
 whatsoever to draw up a formal record in any case where any amend- 
 ment shall have been made under the provisions of this Act, such re- 
 cord shall be drawn up in the form in which the indictment was after 
 such amendment was made, without taking any notice of the fact of 
 such amendment having been made. 
 
 *9. Indictments, when and how quashed. [*102] 
 
 In all cases where an indictment is so defective, that any judgment 
 to be given upon it against the defendant would be erroneous, the court 
 in its discretion may quash it. (a) This may be done an the application 
 either of the defendant or of the the prosecutor. [1] But the court will 
 
 (a) 2 Hawk. c. 25, s. 146. 
 
 of any legal error or imperfection in the indictment or information, but the same proceedings 
 "shall be had again, as "though such person had never been arraigned ; nor shall the words 
 "force and arms," or the words "contrary to the form of the statute," be deemed necessary 
 in any indictment or information, for treason, felony, or any other criminal offence ; nor shall 
 the party indicted have any advantage by writ of error, or plea, or otherwise, for the want 
 of these or the like words, but such indictment or information shall be judged as effectual, 
 to all intents and purposes, as if the same words were therein contained." 
 
 [1] When the indictment or the caption (to induce the court to quash an indictment for a 
 defect in the caption, the defect must be of a clear and decisive character. State v. Hickman, 
 3 Halsted, 299 ; Eespublica v. Clever, 4 Teates, 69. An indictment founded on the evidence 
 of an interested person will be quashed. State v. Fellows, 2 Hay w. 340 ; see also, State v. 
 Oam, 1 Hawks. 352. So where the grand jury received the testimony of a person not un- 
 der oath. United States v. Coolidge, 2 Gall. 364) is defective, the court have a disoretionary 
 power to quash it immediately, or to oblige the defendant to plead or demur, which rests 
 entirely with the court 2 Burr. 1127 ; 1 Sid. 54, 247 ; 1 Salk. 372 ; 2 Keb. 128 ; Cro. Car. 
 584 ; Palm. 389 ; 1 Wils. 325 ; 2 East, 226 ; 2 Sess. Cas. ; 1 Hawk. b. 2, c. 25, § 146 ; 
 Com. Dig. Indictment, H. ; Bac. Abr. Indictment, K. But though this is matter for their 
 discretion, they are guided by certain rules, in its exercise, which we shall proceed to ex- 
 amine. 4 Burr. 2539. The application may be made to the court either by the prosecutor 
 or the defendant ; or, any one as amicus curiae, may suggest the error to the court, in order 
 that they may exercise their discretion. Comb. 13. 
 
 When the application is made by the prosecutor, the court will not quash the indictment 
 as a"matter of course, unless it appear to be clearly insufficient, (Dougl. 240 ; Com. Dig. In- 
 dictment H ;) nor even then after the delendant has pleaded, unless another good indict- 
 ment has been found against him, (2 East Rep. 226 ; 1 Leach, 11 ; 6 Mod. 262 ;) nor where 
 he has been put to extra expense, unless the costs are first paid him. 3 Burr. 1469 • 2 
 Stra. 946 ; Com. Dig. Indictment H. ; Bac. Abr. Indictment K ; MSS. Mich. Term, 53 Geo. 
 3 ; Stark. 282, note h. But where the indictment is insufficient, and the defendant is not ' 
 put to inconvenience, the court will quash it upon the mntinn nf the prosecutor without the 
 
102 INDICTMENT. 
 
 seldom interfere, upon the application of a defendant, where the indict- 
 ment is for forgery, perjury, sedition, or for a nuisance to a highway ;(a)- 
 
 (a) 2 Hawk. o. 25, s. 146. 
 
 consent of the defendant, though it is for a crime, in which they never show the same in? 
 dulgence upon the application of a prisoner. 2 Sess. Cass. 19; 2 East, 226-7. And if an 
 indictment removed by certiorari is at issue, and the prosecutor procures another indictment 
 to be found, alleging the first to be defective, the court will by consent of all parties, order 
 the first to be quashed, and the second to be substituted in. its place, and to stand in the 
 same condition. 3 Burr. 1468 ; 1 Bla. Rep. 460 ; Com. Dig. Indictment, H ; Bac. Abr. In- 
 dictment, K. And in a late case, on an indictment for perjury against the defendant, who 
 had been prosecutrix of an indictment for a conspiracy where there was another indictment 
 for perjury against one of the witnesses, in the prosecution for the conspiracy, the court re- 
 fused to quash the indictment against the defendant, unless the prosecutor was named, and 
 the second indictment should stand in the same situation as the first wpuld have done. 3 
 B. & A. 373. But otherwise in case of removal by certiorari, the court will not quash the 
 indictment after the forfeiture of the recognizance, by neglecting to carry down the record 
 for trial. 1 Salk. 3S0 ; Com. Dig. Indictment, H. 
 
 When an information is filed by the attorney-general ex-officio, the court will quash it 
 upon motion, if they see cause; but if it be exhibited by a private individual, they will not 
 thus dispose of it, because the defendant is entitled to costs; 1 Sid. 152; Com. Dig. Infor- 
 mation, D ; 4 Tin. Abr. Information, E ; Dougl. 240, 241 ; Hawk. b. 2, c. 25, § 149. 
 
 When the motion is made on the part of the defendant, the rales by which the court are 
 guided are more strict, and their objections are more numerous ; because, if the indictment 
 be quashed, the recognizances will become ineffectual, "(2 Sess. Cas. 1 ;) and the courts usu- 
 ally refuse to quash oh the application of the defendant when the indictment is for a serious 
 offence, unless upon the clearest and plainest ground, but will drive the party to a de- 
 murrer, or motion in arrest of judgment, or writ of error. Cald. 432, 554 ; Nolan, P. L. 
 261. 
 
 See Lambert v. People, 7 Cowen, 166; People v. Eckfut, ib. 535; State v. Biclcey, 4 Halst. 
 293 ; State v. Matthews, 3 Pike, 84; State v. Baldwin, 1 Dev. & Bat. 198. 
 
 It is, therefore, a general rule, that no indictments which change the higher offences, as 
 treason or felony,' (1 Salk. 372 ; Com. Dig. Indictment, H. ; but see 4 Harg. St. Tr. 697, 698 ;) 
 or those crimes which immediately affect the public at large, as perjury, forgery, extortion, 
 conspiracies, (an indictment for a conspiracy may be quashed. State v. Hickey, 4 Halst. 293,) 
 subornation, keeping disorderly houses, or offences affecting the highways, not executing 
 legal process, will be thus summarily set aside. 1 Salk. 372 ; 5 Mod. 13 ; 2 Sess Cas. 1, 2, 
 4, 8 ; 1 Sess. Cas. 337, 338, 339 ; 2 Stra. 1210 ; Com. Dig. Indictment, H. ; Bac. Abr. Indict- 
 ment, K.; Hawk. b. 2, c. 25, s. 146; Burn. J. Perjury, III.; Williams, J. Perjury, II.; 5 
 Mod. 13, as to extortion. 
 
 So, the court refused to quash an indictment against a number of persons for breaking and 
 entering a lead mine, though it was defective, because there were large numbers of persons 
 met together, and the judges was trying others in the same county for similar offences. 1 
 Wils. 325 ; Com. Dig. Indictment, H. ; Bac. Abr. Indictment, K. Upon the same ground, 
 the court will refuse to quash an indictment for a nuisance, without a certificate that it is 
 removed, (2 Ld. Raym. 1164; Andr. 139, 220; 4 Burr. 2116; 1 Salk. 372; 1 Vent. 370; 
 Cro. Car. 584; 1 Barnard, K. B. 45; Com. Dig. Indictment, H.; Bac. Abr. Indictment, K.;) 
 and the court have refused to quash an indictment against a parish for not repairing a high- 
 way, on an affidavit that the way was in repair, but the defendants were directed to plead 
 guilty, and pay a nominal fine, (2 Chit. Rep. 216;) and the court will refuse to quash an in- 
 dictment against overseers for not paying money over to their successors, for that is a grow- 
 ing evil, and affecting the interests of the community. 2 Stra. 1268 ; Com. Dig. Indictment, 
 H. ; Bac. Abr. Indictment, K. 
 
 Neither will the court, as it has been held in general, quash indictments for forcible or 
 
INDICTMENTS, WHEN AND HOW QUASHED. 102—1 
 
 nor upon the application of a prosecutor, until after a good bill for the 
 same offence, against the same party, shall have been preferred and 
 found.(a) 
 
 (a) See R. v. Dunn, 1 Car. & K. 130 ; B. v. Wynn, 2 East, 226. 
 
 fraudulent injuries, as for a forcible entry, (6 Mod. 96 ; Com. Dig. Indictment, H. ;) for a dis- 
 turbance in church, (Cro. Car. 584 ; 1 Sid. 54 ; Com. Dig. Indictment, H.,) or against a bank- 
 rupt for his embezzling his effects, (1 Leach, 10 ; 3 J. B. Moore, 656,) or for enticing away 
 a servant, (1 Salk. 372; Com. Dig. Indictment, H.,) for though some of these are private in 
 their name, they are public in their consequences. 6 Mod. 42 ; 3 Burr. 1841 ; Com. Dig. 
 Indictment, H. 
 
 And in an indictment for using false weights and measures, the court will not thus inter- 
 fere, even where it appears the scale for goods is the lightest, and though it is not stated 
 where the supposed offence was committed. 3 Burr. 1841 ; Com. Dig. Indictment, H. ; Bac. . 
 Abr. Indictment, K. And as informations are rarely allowed, except for offences endanger- 
 ing the public welfare, it is said that the court will never quash them at the instance of the 
 defendant. 1 Vin. Abr. Information, E. 
 
 And it is no ground to quash an indictment, that there be another pending against de- 
 fendant for the same offence, unless, indeed, there be some vexation, which the court will 
 judge of and determine; and in a case where there was a joint indictment-against two for 
 perjury, which, on the trial, the court inclined to think bad, and the trial was postponed, 
 pending which a separate indictment against one of the parties was preferred, the court "re- 
 fused to quash, the latter indictment, no vexation appearing. Per Abbott, J. Nov. 1816, 
 Adolphus moved to quash the indictment. 
 
 There are some cases, however, in which the court will thus interfere on the behalf of the 
 defendant upon a proper application, made upon affidavit of the objection, and pointing it 
 out so that it may becured in another indictment. Thus, where the court, in which the in- 
 dictment was found, have no jurisdiction, it will be quashed; as if an indictment for perjury 
 at common law,~bo presented at the quarter sessions which they have no power to determine, 
 1 Burr. 389 ; 2 Stra. 1088 ; Hawk. b. 2, c. 25, s. 146, n. 25 ; Com. Dig. Indictment, H. 
 
 Pennsylvania. — In the case of the Commonwealth v. Koshff, consul-general of Eussia, for 
 rape, the indictment, which had been found in the court of oyer-and terminer, held by the 
 judges of the supreme court of the state of Pennsylvania, was quashed on the ground that 
 under the constitution and laws of the United States, the state courts have no jurisdiction 
 "in cases affecting ministers and consuls," but that the same is in the tribunals erected under 
 the national constitution and laws. 
 
 In this case the motion to quash the indictment was urged upon two grounds. 
 
 1. That consuls of foreign powers, are not amenable to the criminal jurisdiction of the 
 country in which they are resident, but are under the protection of the power by whom they 
 are appointed; and must, if an offence be committed by them, be sent home for punishment. 
 
 2. That the jurisdiction over consuls, is exclusively in the courts of the United States. 
 Mr. Chief Justice Tilghman, in deciding on the motion, denied the exemption claimed in 
 
 favor of consuls, from punishment for crimes; this privilege being by the laws of nations 
 given only to public ministers; the motion prevailed on the second ground. 
 
 Mr. Peters, who was in this case of counsel for the defendant, owes it as a duty to 
 state, that in his knowledge the charge was malicious and unfounded. 
 
 And it seems the court will quash an indictment for perjury for want of an addition to 
 defendant's name, if the objection be properly taken by affidavit. 3D. SB 621. 
 
 An indictment for an assault and battery was quashed, because it did not set forth the 
 estate, degree or mystery of the traverser. State v. Hughes, 2 Har. & M'Hen. 479. The 
 proper mode in which an indictment may be quashed in such cases is by plea in abatement. 
 Commonwealth v. Cherry, 2 Virginia Cas. 20; Same v. Lewis, 1 Metcalf, 151; Swift y. 
 BowJcer, 1 Mass. 76; State v. Bishop, 15 Maine, 122. For cases in which indictments have 
 
 34 
 
102 2 INDICTMENT. 
 
 An indictment may be thus quashed, as well by a court of quarte r 
 sessions, (a) as by courts of oyer and terminer and jail delivery, or by 
 ths court of Queen's Bench. 
 
 (a) if. v. Wilson et al., 14 Law J.. 3 m. 
 
 been quashed, see State v. Roach, 3 Hayw. 352, where no day was laid, oh which the offence 
 was committed. State v. of P., ,1 Tyler, 283, where offence appeared to be barred by limi- 
 tation. State v. Leyton, 3 Hawks, 284, where offence was laid on day to come. In the State 
 of New York, such addition is not essential in any case. 2 N. T. Eev. Stat. 728. 
 
 And if from the facts stated, it appear, that no indictable offence has been committed, the 
 indictment will be thus set aside in the first instance. 'Dougl. 253. 
 
 Where a presentment by a grand jury is general, without specifying any particular offence, 
 or the names of the witnesses on whose information it is founded, the court will quash it, on 
 motion in behalf of the defendant. State v. Mitchell, 1 Bay, 269. 
 
 So an indictment for exercising a trade, contrary to the custom of the city will be quashed, 
 as it manifestly cannot be supported. And an indictment when not for any of the public 
 offences we have already mentioned, may also be quashed for the omission of a material 
 averment ; as where an indictment for not receiving a parish apprentice did not aver the 
 binding to be within the 43 Eliz. c. 2, (2 Stra. 1268 ; Com. Dig. Indictment, H.; Bac. Abr. 
 Indictment, K.,) or before the repeal of the statute, the proceeding for maintaining a cottage 
 without four acres of land, neglected to state that it was inhabited: (Andr. 230; Com. Dig. 
 Indictment, H.,) or where the defendant was charged with speaking words of a magistrate, 
 not in themselves actionable, and they were not stated to be said of him in the execution of 
 his office. Andr. 230 ; Com. Dig. Indictment, H. ; Bac. Abr. Indictment, K. And .the 
 same rule applies to evident misjoinder, and gross deficiency in the formal requisites. Thus 
 where six persons were jointly and severally charged with exercising a trade without having 
 served an apprenticeship, the indictment was quashed as altogether vicious. 1 Stra. 623 ; 
 Com. Dig. Indictment, H. So where the indictment alleged it was presented, without adding 
 " by the oath of twelve men ;" (Andr. 230,) where in a caption, it was said, " that the several 
 indictments to this schedule annexed are true bills," whereas they are only Mils till they are 
 found ; (1 Salk. 376 ;) and where the chargei is expressed merely by way of recital, (1 Sess. 
 Cas. 3,) the proceedings may be thus disposed of. 
 
 But the court will not quash an indictment on a statute, merely because it does not con- 
 clude "against the form," &o. but leave the defendant to demur. 2 Stra. 702; Bac. Abr. 
 Indictment, K. See State. v. Berry, 4 Halstead, 374. And the defect, in general, must be 
 very gross and apparent to induce the court to dismiss the indictment in this summary 
 way, instead of leaving the party to the more usual remedies of demurring or moving in 
 arrest of judgment; (1 Bla. Rep. 275 ; Dougl. 240, 241 ; Hawk. b. 2, c. 25, s. 146, in notis; 
 Cro. Car. 147 ; Post. 104,) where, however, a defect is shown which induces the court thus 
 to interfere, they must quash the whole indictment, for they cannot strike out some counts, 
 and leave others to be determined on the trial. 2 Stra. 1026 ; Rep. temp. Hardw. 203 ; 
 Com. Dig. Indictment, H. Bac. Abr. Indictment K. If the defendant did not duly appear, or 
 has forfeited his recognizance, his application to quash the indictment will be ineffectual ; 
 (1 Barnard, K. B. 44 ; 1 Salk. 380,) and although the court may, in their discretion quash 
 the indictment at any time before the jury are charged to try the prisoner, they commonly, 
 in order to avoid collusion, refuse to do so after he has pleaded, (1 Leach, 11, 420 ; 2 East, 
 226,) at least unless another good indictment has been found. 2 East, 226. 
 
 It is too late to sustain a motion to quash an indictment after the accused has been 
 arraigned and pleaded not guilty. State v. Burlinghame, 15 Maine, (3 Shepley,) 104. See 
 People v. Monroe, O. T. 20 Wendell, 108. 
 
 If, therefore, the prosecutor desire to quash, he must apply in an early stage of the pro- 
 ceeding. And by a particular provision of the legislature, (7 W. 3, c. 3,) in all cases of 
 teason, except for counterfeiting the coin, seal, sign, or signet, no indictment shall be quashed 
 
APPEARANCE AND PLEA. 102—3 
 
 SECTION II. 
 APPEARANCE AND PLEA. 
 
 When the indictment has been found, if the defendant be not then 
 in custody, or if out on bail and he have not surrendered, in pursuance 
 of his recognizance, to take his trial, the first proceeding is to sue out 
 process, &c, upon the indictment, in order to have him apprehended ; 
 when in custody, he is brought to the bar of the court and arraigned, 
 and he pleads or demurs ; the prosecutor then replies, if the plea be 
 
 for any formal defects, unless before evidence given which has been construed to mean 
 before the defendant plead, (4 St. Tr. 673 ; And see 1 East P. 0. 110 ; Hawk. b. 2, c. 25, s. 
 148,) nor can any such exception be taken in arrest of judgment.. What therefore, in other 
 cases is a rule which the discretion of the courts have adopted for their own guidance, and 
 from which, of course, they may vary, is, in case of the higher treasons, made the subject of 
 a positive enactment. The motion however to quash an indictment may be made on the 
 last-day of the term. 1 Burr. 651 ; Bac. Abr. Indictment, K.; Com. Dig. Indictment, H. 
 
 After the indictment against the defendant has been quashed, a new and more regular one 
 may be preferred against him. He can gain, therefore, very little advantage, except delay, 
 by such an application ; and therefore usually reserves his objection until after the verdict, 
 when, if the indictment be found to be sufficient, the court are bound ex debito justifies, to 
 arrest the judgment. 2 Burr. 1127. 
 
 It is error to quash an indictment for matter which is not apparent in the body of it or in 
 the caption ; extrinsic matter being proper for defence only on trial by jury. Anindictment 
 will not be quashed upon the ground, that the endorsement on its back, stating that the 
 witnesses were sworn and sent to the grand jury, is not signed by the clerk. Bennett v. 
 State, 2 Terger, 472. An unnecessary averment which renders an indictment ungrammati- 
 cal, does not vitiate it, although it should be carefully avoided. State v. Eaney, 2 Dev. & 
 Bat. 390. Quashing an indictment as to one of several defendants, quashes it as to all 
 Lambert v. People, 7 Cowen, 666 ; People v. Eckford, 7 Cowen, 535. 
 
 In Massachusetts, it is provided by statute that no indictment shall be quashed, or other- 
 wise affected, by reason of the omission or misstatement of the title, occupation, estate, or 
 degree of the defendant, or of the name of the city, town, county, or place of residence; nor 
 by reason of the omission of the words "force and arms," or the words " against the statute," 
 &c. Rev. Stat, of Mass. eh. 138, sec. 14. There is a similar statute in New York. 
 
 If two indictments for the same offence be found in the same court, the course is to quash 
 one before the party is put to plead on the other. If in different courts, the defendant may 
 abate the latter, by plea that another court has cognizance of the case by a prior bill. State 
 v. Tisdale, 2 Dev. & Bat. 159. It is said, however, that the finding of a bill does not confine 
 the state to that single bill ; another may be preferred, and the party put to trial on it 
 although the first remains undetermined. Ibid. 
 
 The New York revised statutes (p. 726, sec. 42, vol. 2,) provide that where two indict- 
 ments are pending against a defendant for the same offence, the one first found shall be 
 deemed to be superseded by the second, and shall be quashed. But the mere finding of a 
 second indictment is not^er se a supersedeas to the first. A motion to quash must be made. 
 20 Wend. Rep. 108. Neither has a district attorney any Tight to enter a nolle prosequi upon 
 any indictment without leave of the court. 2 N. Y Rev. Stat. 728, sec. 54. If he wishes 
 to try the defendant on a second indictment, for the same offence embraced in the previous 
 one, he must move to quash the first before he can do so. Barb. Cr. Law. p. 349. 
 
 On a prosecution for an offence which must be commenced within a given time after its 
 commission, if the first indictment be quashed, and the second one, in order to prevent the 
 bar of the statute of limitations, set out the proceedings under the first, they must be stated 
 
102 — 4 APPEARANCE AND PLEA. 
 
 special, or joins in demurrer, after -which the case is ripe for trial or ar- 
 gument. I shall treat of these different proceedings under -the follow-' 
 ing heads. [2] 
 
 1. Process upon Indictment to outlawry, p. 102. 
 
 2. Arraignment and plea, p. 107. 
 
 3. Special pleas, p. 110. 
 
 4. Demurrer, p. 114. 
 
 1. Process upon Indictment to outlawry. 
 (a) Process. 
 
 The regular process upon an indictment, in cases of treason, felony, 
 or mayhem, is by capias, alias and pluries. (a) 
 
 In cases of misdemeanor, the first process is the writ of venire' facias ; 
 
 and if to that the sheriff return that the party has been sumoned, then 
 
 the prosecutor may have a distringas, alias and pluries, and so proceed 
 
 by distress infinite ; or if the sheriff return nihil to the venire, 
 
 [*103] *the prosecutor may have a capias, alias and pluries. (b) 
 
 But in practice these writs are never sued out, except for 
 the purpose of proceeding to outlawry ; but upon the indictment being 
 found, the prosecutor, at the assizes or sessions, where the defendant is 
 not in custody, procures a bench warrant, or the warrant of a justice 
 of the peace, as shall presently be mentioned ; or where the indictment 
 has been found in the court of Queen's Bench, or removed into 1 that 
 court by certiorari, the prosecutor may procure a judge's warrant. (c)[l] 
 
 (a) 2 Hawk. o. 21, s. 15. writs, Arch. Pr. Cr. Off. 43, 44. 
 
 (6) Id. s. 9, 10 ; see the forms of these (c) See Arch. Pr. Cr. Off. 46, 4Y. 
 
 With the precision and certainty required in original criminal proceedings. State v. English, 
 2 Missouri Rep. 141. 
 
 [2] We have hitherto supposed the party accused to have found bail or to he in custody 
 before the finding of the indictment ; in which case he is, as soon as convenience admits, 
 arraigned and put upon his trial. But if he be not taken or do not appear, process must 
 issue, for the purpose of bringing him into court, in order to defend himself against the 
 charge ; for though a bill may be preferred and found against a person in his absence, yet 
 this being a mere ex parte proceeding, to which, if present, he could make no opposition, 
 yet in general no indictment can be tried unless he personally appear — a principle founded 
 upon a principle of equity in all cases, that no man shall be condemned, without being 
 brought to answer by due process of law. 
 
 [1] Process generally imports the writs which issue out of any court to bring the party to 
 answer, or for doing execution. Comyn's Dig. tit. Process. It is so denominated because it ' 
 proceeds or issues forth in order to bring the defendant into court to answer the charge pre- 
 ferred against him. The form of process in a particular case, may be prescribed by statute. 
 In some of the states there are statutory provisions regulating the mode of process gene- 
 rally. The term is applicable to summonses, warrants, capiases, precepts, attachments, com- 
 mitments, mittimuses, executions, supoenas and other writs, made out and issued by magis- 
 trates in criminal casea. Such a writ is regarded in law, as the process of the state, for the 
 
OUTLAWRY. 103 
 
 (5) Outlawry. 
 
 Outlawry upon an indictment before judgment, lies in all cases of 
 treason and felony, and in all cases of indictable misdemeanors in which 
 a capias lies.(a) For this purpose, in misdemeanors there must be three 
 writs of capias, — capias, alias and pluries,— before the exigent ;(b) one 
 is sufficient on an indictment for treason, murder, or manslaughter ;(c) 
 but it is doubtful whether two writs of capias be not necessary in other 
 felonies ;(d ) and they are so, where the party is indicted at quarter ses- 
 sions.^) Besides this, in treason and felony, if the defendant reside 
 in a different county from that in which he is indicted a writ of ca- 
 pias cum proclamatione must issue to the sheriff of the county in which 
 he resides.^) If non est inventus be returned to these writs of capias, 
 then the writ of exigent and the writ of proclamations may issue ; and 
 afterwards a writ of allocatur exigent, if necessary.(A) And if he do 
 not surrender, before the last of the proclamations, judgment of out- 
 lawry is signed ;({) and a writ of capias utlagatum may issue to appre- 
 hend the outlaw, or a special capias utlagatum to apprehend him and to 
 seize all his property. (&)[2] 
 
 (a) See 2 Hawk. e. 27, a. 109. (g) 6 H. 6, e. 1 ; and see Arch. Pr. Cr. Off. 
 
 (6) Id. s. 111. 48,49. 
 
 (c) Id. s. 112. (h) Arch. Pr. Cr. Off. 48, 50 ; and see the 
 
 (d) Id. forms of these several writs, Id. 50, 51. 
 
 (e) 25 Ed. 3, st. 5, o. 14; R v. Tendall, 4 (j) Id. 51, 52. 
 
 T. R. 358. (7c) Id. 52 ; and see the forms, Id. 
 
 purposes of justice ; and it is provided in the constitutions of the states respectively, that all 
 process shall be in the name and style of the particular state. 
 
 Wherever the state grants an authority of oyer and terminer the power to issue process is 
 incidentally given ; for as- there can be no inquiry respecting offences without the presence 
 of the party, wherever the power is entrusted of determining the farmer, there must also be 
 authority to compel the latter. For the same reason, justices of the peace, whenever they 
 are authorized to inquire, hear and determine, may thus compel the defendant to appeal ; 
 and the same observations apply of course to all magistrates. 
 
 From the very nature and object of process, it follows that there can be no necessity for it 
 when the defendant is present in court, but only when he is absent. If therefore an indict- 
 ment be found against a party already in custody, he may be brought up and charged with 
 the indictment. But if the defendant, not being in actual custody, voluntarily appears in 
 court, it is discretionajy, and not obligatory in the court to detain him ; but it may leave him 
 to be taken by the ordinary legal process. 4 Burr. 2531. 
 
 [2] The process of outlawry, with few exceptions, is unknown in the United States. In 
 the state of New York, the process of outlawry in civil actions is abolished ; and also in 
 criminal cases, except for treason. 2 N. T. Rev. Stat. 553, 745 ; see 2 N. Y. Rev. Stat. 
 743, 744. In Pennsylvania, there is no outlawry in civil cases. Dillman v. Shultz, 5 Serf. 
 & Rawle, 35 ; see 1 Smith's Laws of Penn. 116, 117 ; and 3 Smith's L. of Penn. 37 38 39 
 40. This process has never been employed in North Carolina. Sherrod v. Davis, 1 Hayw 
 284. And it is unknown to the laws of Kentucky. Snecd v. Wiester, 2 Marsh. Rep. 278. 
 
103 — 1 APPEARANCE AND PLEA. 
 
 (c) Bench warrant. 
 
 Upon an indictment being found at the assizes or quarter sessions, if 
 the defendant be not in custody, or if out on bail, and it be doubtful 
 whether he will surrender to take his trial, the court upon application, 
 will grant a bench warrant ;(a) upon which he may be apprehended as 
 upon any other warrant, as mentioned ;{b) and it may be backed, when 
 necessary as stated, (c) [3] 
 
 In the central criminal court, the prosecutor applying for a bench 
 warrant, must, before it issues, enter into a recognizance, such as the 
 court shall direct, to proseeute the law with effect against the defen- 
 dant.^ ) 
 
 [*104] *The following may be the form of a 
 
 Bench Warrant 
 
 County of ) To all constables, headboroughs, and other officers and rnin- 
 , ) isters of the peace of our Lady the Queen within the coun- 
 ty °f 1 an< ^ t° every of them, whom it may concern. 
 
 These are to will and require, and in her majesty's, name strictly to 
 charge and command, that you or some one of you, upon sight hereof, 
 take and bring A. B. before [us, and others Her Majesty's justices assigned 
 to keep the peace in the county aforesaid, and also to hear and determine di- 
 vers felonies, trespasses and other misdemeanors committed in the same coun- 
 ty,'] at this present sessions [of the peace] holden at , in and for the 
 
 said county, (if the court shall be here sitting,) to answer to an indict- 
 ment found against him for [state shortly the offence ;] and if the court 
 shall not be sitting at the time of such taking, then that you or some 
 of you forthwith afterward bring the same party before some one or 
 more of Her Majesty's justices of the peace for the same county, to 
 find sufficient sureties personally to appear at this present sessions, to 
 rnswer the same indictment, and all such other matters as on Her Ma- 
 jesty's behalf shall be here objected against him ; And if he cannot be 
 taken during this present session, then that you bring him before some 
 one or more of Her Majesty's justices of the peace for the same county, 
 
 (a) 1 Hale, 599. (e) Ante, pp. 33, 34. 
 
 (6) Ante, p. 33. (d) Reg. Gen. Jan. 18-12 ; Car. & M. 254. 
 
 [3] The New York revised statutes provide that after an indictment has been found by the 
 grand jury, and presented to the court, a warrant for the arrest of the defendant may be 
 issued by the court, or by the district attorney, or by any justice of the Supreme Court or 
 county judge of the county in which the indictment was found, either during the sitting of 
 the court or in vacation. 2 N. Y. Rev. Sta. 128, see. 55. This warrant is to be delivered 
 to the sheriff and constables of any county in the state. If served in any county other than 
 that in which the indictment was found, the same proceedings are to be had as on an indor- 
 sed warrant issued before the indictment. 
 
"WARRANT OF JUSTICE OUT OF SESSIONS. 104 
 
 as speedily after as may be, to find such sureties, personally to appear 
 at 'ihe next session [of the peace] to be holden for the said county, to an- 
 swer as aforesaid, and further to be dealt with according to law. 
 
 Hereof you are not to fail at your peril. 
 
 [Given under our hands in open session] this day of ■, in the 
 
 year of our Lord •. 
 
 (d) Warrant of justice out of sessions. 
 
 By stat. 11 & 12 Vict. c. 42, s. 3, where any indictment shall be 
 found by the grand j ury in any court of oyer and .terminer or general 
 jail delivery, or in any court of general or quarter sessions of the peace, 
 against any person who shall then be at large, and whether such per- 
 son shall have been bound by any recognizance to appear to answer 
 to the same or not, the person who shall act as clerk of the indictments 
 at such court of oyer and terminer or jail delivery, or as clerk of the 
 peace at such sessions, at which the said indictment shall be found, shall 
 at any time afterwards, after the end of the sessions of oyer and termi- 
 ner or jail delivery or sessions of the peace at which such indictment 
 shall have been found, upon application of the prosecutor, or 
 of *any person on his behalf, and on payment of a fee of one [*105] 
 shilling, if such person shall not have already appeared and 
 pleaded to such indictment, grant unto such prosecutor or person a cer- 
 tificate of such indictment having been found ; — and upon production 
 of such certificate to any justice or justices of the peace for any coun- 
 ty, riding, division, liberty, city, borough, or place in which the offence 
 shall in such indictment be alleged to have been committed, or in 
 which the person indicted in and by such indictment shall reside or be, 
 or be supposed or suspected to reside or be, it shall be lawful for such 
 justice or justices, and he and they are hereby required, to issue his or 
 their warrant to apprehend such person so indicted, and to cause him 
 to be brought before such justice or justices, or any other justice or jus- 
 tices for the same county, riding, division, liberty, city, borough, or 
 place, to be dealt with according to law ; and aftewards, if such person 
 be thereupon apprehended and brought before any such justice or jus- 
 tices, such justice or justices, upon its being proved upon oath or affir- 
 mation before him or them that the person so apprehended is the same 
 person who is charged and named in such indictment, shall, without 
 further inquiry or examination, commit him for trial, or admit him to 
 bail, in manner before mentioned. 
 
 The following is the form of the 
 
 Certificate of Indictment being found. 
 I hereby certify, that at [a court of oyer and terminer and general jail 
 
105 APPEARANCE AND PLEA. 
 
 delivery, or a court of general quarter sessions of the peace,"] holden in and 
 
 for the [county] of , at , in the, said [county], on , a bill of 
 
 indictment was found by the grand jury against A. B., therein described 
 
 as A. B. [late of , labourer,] for that he [& c, stating shortly the offence,] 
 
 and that the said A. B. hath not appeared or pleaded to the said indict- 
 ment. 
 
 Dated this day of , 185 — . 
 
 J. D. 
 
 Clerk of the indictments on the circuit, 
 
 or 
 Clerk of the peace of and for the said [county.] 
 
 The reader will perceive that this certificate can only be obtained 
 after the assizes or sessions; for during the assizes or sessions the pros- 
 ecutor may obtain a bench warrant. But it, is not only in cases where 
 the prosecutor has omitted to apply for a bench warrant during the 
 assizes or sessions, but also where he has applied, and got it, that this 
 
 mode of obtaining a justice's warrant to apprehend a party in- 
 [*106] dieted may be useful ; *for it may often happen that whilst the 
 
 bench warrant is in possession of a constable in another county, 
 or in a distant part of the same county, there may be an opportunity 
 of apprehending the defendant in another part of the county or in an- 
 other county.[l] 
 
 []] In general, where a constable has actually made an arrest on the warrant of a justice 
 of the peace for a criminal offence, he ought not to deliver up the party arrested to another 
 officer, as a sheriff, or marshal, on a warrant for a different offence from another maistrate, 
 though of superior jurisdiction, as a judge of a state court, or a judge of a court of the United 
 States. It is the duty of the constable to take the party arrested by him before the justice 
 of the peace, who issued the warrant, or some other magistrate, in obedience to the requisi- 
 tions of the warrant, or according to the course of the law. At the same time proper facili- 
 ties should be afforded to the other officer, in the manner above mentioned, in order that the 
 party might be ultimately arrested or detained in prison on the other warrant against him. 
 When the party is brought before the justice, he is to proceed in the case, according to law, 
 notwithstanding the existence of another warrant. If the party be bailed, or committed to 
 prison by the justice of the peace, it will be thereafter decided, on habeas corpus, or other- 
 wise, by a judge or competent court, for what offence the party shall be first tried, or 
 whether he shall be removed to another county, or state, on the other charge. M'Kinney's 
 Am. Mag. 229. 
 
 Where an officer, with or without a warrant, has lawfully arrested a party for a crime or 
 offence, and has him in custody, he cannot be taken out of his custody by another officer, 
 for the purpose of being apprehended by the latter on another criminal charge. Both offi- 
 cers may act jointly in making the arrests on the several charges, and in the custody of the 
 prisoner; or the latter officer may accompany the former, with the party in view, to see that 
 the party does not escape, or is not set at liberty, until he be brought before the magistrate, 
 when each case will be disposed of in its order, and according to its nature or circumstances. 
 Or in such cases, one of the officers may, when it can be legally done, depute the others to 
 execute his warrant, or to make the arrest designed. In such instances, if ono magistrate 
 has not jurisdiction of, or cannot proceed to the examination in both cases ; the prisoner is 
 to be taken before the magistrate acting in the case in which the first arrest was made, and 
 
WARRANT OF JUSTICE OUT OF SESSIONS. 106 
 
 The following is the form of the 
 
 Warrant to apprehend the Person indicted. 
 
 To the constable of , and to all other peace officers in the said 
 
 [county] of 
 
 Whereas it hath been duly certified by J. D., clerk of the indictments 
 
 on the circuit [or clerk of the peace of and for the [county] of ,] 
 
 that, [&c, stating the certificate:] These are therefore to command you, 
 in Her Majesty's name, forthwith to apprehend the said A. B., and to 
 bring him before [me,] or some other justice or justices of the peace in 
 and for the said [county,] to be dealt with according to law. 
 
 Given under my hand and seal, this day of , in the year of 
 
 our Lord , at , in the county aforesaid. 
 
 J. S. [L. s.] 
 
 The following is the form of the 
 
 Warrant of Commitment of the Person indicted. 
 
 To the constable of , and to the keeper of the [common jail, 
 
 or house of correction,] at — : — , in the said [county] of , 
 
 Whereas by [my] Warrant under my hand and seal, dated the —. — 
 
 day of , after reciting that it had been certified by J. T>. [&c, as in 
 
 the certificate,] [I] commanded the constable of , and all other peace 
 
 officers of the said county in Her Majesty's name, forthwith to appre- 
 hend the said A. B., and briDg before [me,] the undersigned, [one] of 
 Her Majesty's justices of the peace in and for the said [county,] or be- 
 fore some other justice or justices of the peace in and for the said 
 [county,] to be dealt with according to law : And whereas the said A. 
 B. hath been apprehended under and by virtue of the said warrant, and 
 being now brought before [me,] it is hereupon duly proved to [me] 
 upon oath that the said A. B. is the same person who is named and 
 charged in and by the said indictment: These are therefore to command 
 you the said constable, in Her Majesty's name, forthwith to take and 
 
 safely convey the said A. B. to the said [house of correction] at , in 
 
 the said [county,] and there to deliver him to the keeper, thereof, 
 together *with this precept; and I hereby command you the [*107] 
 
 if the party be discharged or bailed, he ia to be delivered over or detained by the officer in 
 the other case, on his warrant or authority ; or if the party be committed to prison, he will 
 be detained there on the other charge, as is stated below under this head. 
 
 Constables, and the like officers, having warrants against parties already arrested by ano- 
 ther officer, and in his custody, ought to give due notice thereof to the officer. And it is 
 the duty of peace officers to assist, or render the proper facilities to each other in all such 
 cases, in executing the process or authority of the law, and enforcing the administration of 
 justice. An officer by whose negligence, connivance, or omission, in this respect, an offender 
 should effect his escape, would be considered highly criminal and severely punished, 
 M'Kinney's Am. Mag. 228, 229. 
 
 35 
 
107 < APPEARANCE AND PLEA. 
 
 said keeper to receive the said A. B. into your custody in the said 
 house of correction, and him there safely to keep until he shall be 
 thence delivered by course of law. 
 
 Given under my hand and seal, this . day of , in the year of 
 
 our Lord , at- , in the [county] aforesaid. 
 
 J. S. [l. s.J 
 
 Or if the party indicted be confined in prison for any other offence 
 than that charged in the indictment, at the time of such application, 
 the justice, upon the like proof of identity, shall issue his warrant di- 
 rected to the keeper of the prison, to detain him, until he shall be re- 
 moved by habeas, for the purpose of being tried.(a)[l] 
 
 The following is the form of a 
 
 Warrant to detain a Person indicted who is already in Custody for 
 another Offence. 
 
 To the keeper of the [common jail or house of correction] at , 
 
 in the said [county] of , 
 
 Whereas it hath been duly certified by J. L\, clerk of the indictments 
 
 on the circuit [or clerk of the peace of and for the county of -,] 
 
 that [&c, stating the certificate:] And whereas [1 am] informed that the 
 said A. B. is in your custody in the said [common jail] at afore- 
 said, charged with some offence or other matter; and it being now duly 
 proved upon oath before [me,] that the said A. B. so indicted as afore- 
 said, and the said A. B. in your custody as aforesaid, are one and the 
 same person : These are therefore to command you, in Her Majesty's 
 name, to detain the said A, B. in your custody in the [common jail] 
 
 (a) 11 & 12 Viet. c. 42, a. 3. 
 
 [1] 'When the party is already in prison, in a civil action, he may then be charged crimi- 
 nally by merely leaving with the jailer the warrant of the justice or other warrant ; but such 
 justice cannot take a prisoner out of the custody of the court, and send him to the county 
 jail ; for the prisoner in such case can only be removed by the authority of a habeas corpus 
 issuing out of the oourt. When a party in custody in a civil action is then proceeded against 
 criminally, the practice is for the magistrate before whom the complaint is laid, to take the 
 information of the accuser and witnesses, and to issue his warrant, which is lodged with the 
 keeper of the place of confinement where the defendant is kept in prison. This officer on 
 the termination of the civil imprisonment, sends for a constable, who takes the party before 
 a justice of the peace, by whom the accuser, witnesses and prisoner, are examined, and the 
 latter is discharged, bailed or committed as on an original accusation. 
 
 When the party is already in jail on a criminal charge, and finally committed for trial, it is 
 not usual to bring him from his first oustody before a magistrate on a subsequent charge ; but 
 the examination of witnesses is taken as in ordinary cases, and a warrant of detainer is sent 
 to the jailer, in whoso custody he remains. By this means it will appeal' on the calendar 
 that he is charged with two offences, and if acquitted on that for which he was first com- 
 mitted, his discharge will be prevented, and if the offence was committed in another county, 
 lie may be sont thither to take his trial. 1 Chitty's Crim. Law, p. 66. 
 
ARRAIGNMENT. 107—1" 
 
 aforesaid, until by Her Majesty's writ of habeas corpus be shall, be re- 
 moved therefrom for the purpose of being tried upon such indictment, 
 or until he shall otherwise be removed or discharged out of your custody 
 by due course of law. 
 
 Given under my hand and seal, this day of — — , in the year of 
 
 our Lord , at , in the [county] aforesaid. 
 
 J. S. [L. S.J 
 
 2. Arraignment and Plea. 
 
 (a) Arraignment 
 
 When a person, against whom the grand jury have found .a true bill, 
 is in custody, the clerk of arraigns at the assizes, or clerk of the peace 
 at sessions, orders the jailer to bring him to the bar. When he ap- 
 pears, the clerk addresses him thus : "A. B., hold up your 
 hand: You *stand indicted by the name of A. B., [late of, &c] [*108] 
 
 for that you, on the • [&c, as in the indictment, to the end, 
 
 except that it is addressed to the prisoner in the second person, and that the 
 second and subsequent counts are stated shortly/] How say you, A. B., are 
 you guilty of this [felony] whereof you stand indicted, or not guilty ? "[1} 
 
 [1] The term arraignment signifies the calling the defendant to the bar of the court, to 
 answer the accusation contained in the indictment. 2 Hale, 216 ; 4 BIk. Com. 322. It con- 
 sists of three parts. 1st, calling the prisoner to the bar by his name, and commanding him 
 to hold up his hand ; 2dly reading the indictment to him in English that he may understand 
 the charge; and 3dly, demanding of him whether he is guilty or not guilty. 2 Hale, 219. 
 
 The first of these ceremonies is intended the more completely to identify the prisoner as 
 the person named in the indictment, because by holding up his hand when his name is 
 called, he acknowledges himself to be properly described under that appellation. 2 Hale, 
 219; Dalt. c. 185; Hawk. b. 2, c. 28, s. 2; 4 Bla. Com. 323; Burn, J. Arraignment; "Wil- 
 liams, J. Arraignment. ; Dick. Sess. 158. But this ceremony is not absolutely necessary, for 
 if the prisoner obstinately refuse to hold up his hand, the same purpose is answered by any 
 admission that ho is the person intended. Sir T. Raym. 408; 1 Bla. Rep. 3; 2 Hale, 219; 
 Hawk. b. 2, c. 28, s. 2; 4 Bla. Com. 323; Burn, J. Arraignment: "Williams, J. Arraignment^ 
 Dick. Sess. 159. 
 
 The intention of reading the indictment to the prisoner, is, that he may fully understand 
 the charge to be produced against him. 2 Hale, 219 ; Dalt. c. 185; 4 Bla. Com. 323; "Wil- 
 liams, J. Arraignment; Dick. Sess. 160. This is to be done in English by a very ancient 
 statute, long before the proceedings in general were in our own language, and when all the 
 written parts of the accusation were scrupulously framed in Latin. 37 Ed. 3, c. 15; Hawk, 
 b. 2, c. 28, s. 3 ; 4 Bla. Com. 323. And it seems that the indictment is to be read, although 
 the defendant has had a copy delivered to him. 1 Burr. 643. 
 
 The New York Revised Statutes provide that upon any defendants being arraigned upon 
 an indictment, it is not necessary to ask him how he will be tried ; and, instead of being re- 
 quired to say whether he pleads guilty or not guilty, he shall be required to say whether he 
 demands a trial upon such indictment. He may answer that he does require such trial ; and 
 for the purpose of all further proceedings, such an answer shall be deemed equivalent to a 
 plea of not guilty. If he refuses to plead or answer, and in all cases where he does not con- 
 fess the indictment to be .true., a plea of not guilty shall, be entered by. the court; and the 
 
108 APPEARANCE AND PLEA. 
 
 Upon an indictment for a subsequent offence after a previous convic- 
 tion, the prisoner is to be arraigned upon the whole indictment, includ- 
 ing the former conviction; and if he plead not guilty, then the jury 
 in the first instance are charged with the subsequent offence, and only 
 that part of the indictment read to them which relates to it; and if they 
 find him guilty, then (without their being again sworn) that part of the 
 indictment relating to the previous conviction is read to them, and they 
 are charged with it; and if they find that he was previously convicted, 
 then a verdict of guilty on the whole indictment is entered. This has 
 been determined to be the proper course, by the whole, body of the 
 judges, upon full consideration.(a) In cases of murder or manslaughter 
 where, besides the indictment, there is also a coroner's inquisition, it is 
 usual to arraign the prisoner on the inquisition immediately after ar- 
 raigning him on the indictment, and to try him on both at the same 
 time.(6) 
 
 The holding up of the hand is a mere ceremony, and not of any im- 
 portance. It is principally done where there are two or more arraigned 
 upon the same indictment, for the purpose of ascertaining which of 
 them is A. B., which C. D., &c.(c) 
 
 But the court will not dispense with the prisoner's standing at the 
 bar, whatever his station in life may be, particularly in case of felony.(rf) 
 In this latter case, however, (which was the case of Captain Douglas, 
 who surrendered to take his trial for being second to Lord Cardigan, in 
 a duel with Captain Tuckett), "Williams, J., allowed several of the pris- 
 oner's friends to stand beside him in the dock. In a subsequent case, 
 
 (a) Per Lord Campbell, C. J., in R v. (c) 2 Hawk", c. 28, s. 2 ; B. v. Batclife, 1 
 
 Shuttleworth, 21 Law J. 36, m. ; see post, p. "W. BI. 3. 
 624. (d) R. Y.Douglas, Car. k M. 193. 
 
 (&) 1 East, P. C. 371. 
 
 same proceedings in all respects shall be had, as if he had pleaded not guilty to such indict- 
 ment. 2 N. V. Rev. Stats., p. 728, sec. 63. 
 
 At common law. the accessory could never be arraigned before the actual attainder of the 
 principal; and, therefore, where the attainder of the former was prevented by his death, 
 standing obstinately mute, challenging peremptorily above the number allowed by law, being 
 pardoned, or admitted to the benefit of clergy, the latter altogether escaped from justice. 2 
 Inst. 183, 4; Cro. Eliz. 541; 2 Hale, 222; Eost. 362, 3; Hawk. b. 2, c. 29, s. 41; 4 Bla, 
 Com. 323. And it was necessary that the attainder of the principal should be upon the 
 very same charge, in which the accessory was included. 2 Inst. 184; Plowd. 98, 9; Hawk. 
 b. 2, c. 29, s. 39. But it was no objection to the arraignment of the accessory, that the at- 
 tainder of the principal was erroneous, as none can take advantage of that circumstance but 
 the individual against whom it was pronounced; (9 Co. Rep. 119; 2 Inst. 184; Hawk. b. 
 2, c. 29, s. 40 ;) though, if both are attainted, the renewal of the attainder of the latter re- 
 verses also that of the former. 1 Rol. Abr. 777 ; 9 Co. Rep. 119; Hawk. b. 2, c. 29, s. 40. 
 And it was considered, that if the principal were once attained, whether, after conviction by 
 verdict or outlawry, his subsequent death or pardon would not in the least prevent the ar- 
 raignment of tho accessory. Cro. Eliz. 541; 2 Dyer, 120; Hawk. b. 2, c. 29, s. 42. 
 
STANDING MUTE, &o. 108—1 
 
 where a foreigner, who was a merchant in London, was indicted for fit- 
 ting out a ship to be employed in the slave trade, his counsel applied 
 that the prisoner might sit by him instead of going into the dock,— not 
 on account of his station -in life, but because he was a foreigner, and 
 many of the documents in the case were in a foreign language, which 
 would render it necessary for his counsel from time to time to commu- 
 nicate with him personally for the purposes of his defence, — the court 
 (Maule & Wightman, JJ.,) however, held that the application was one 
 which could not be granted. (a)[2] 
 
 Formerly, when there was more danger of rescue and es- 
 capes *than there is at present, it was no uncommon thing for [*109] 
 prisoners to be brought to the bar of the court in irons. And 
 the ■ were obliged to stand at the bar in irons during the arraignment, 
 and until they had pleaded, the judges saying that that they had no 
 authority to order them to be struck off until the trial.(5) At the trial, 
 however, the irons were always struck off.(c)[l] 
 
 (b) Standing mute, ~&c. 
 
 If any person being. arraigned upon, or charged with any indictment 
 or information for treason, felony, piracy, or misdemeanor, shall stand 
 mute of malice, or will not answer directly to the indictment or infor- 
 mation : in every such case it shall be lawful for the court, if it shall 
 so think fit, to order the proper officer to enter a plea of " not guilty" on 
 behalf of such person ; and the plea so entered shall have the same 
 force and effect, as if such person actually pleaded' the same(c?) And 
 to ascertain whether a person who stands mute, is mute of malice or by 
 the visitation of God, the judge will immediately charge the jury to 
 try this collateral issue ; and the jailer, or such other person as can give 
 evidence upon the subject, shall be sworn and examined^) [2] 
 
 (a) R. v. Pedro de Zulueta, 1 Car. k K. (c) Id. 
 
 215. (d) 7 & 8 G. 4, c. 28, s. 2. 
 
 (6) R. v. Layer, 16 How. St. Trials, 94, 99, ( e ) See R. v. Merrier, 1 Leach, 183 ; R. v. 
 
 129; R. v. Waite, 2 East P. C. 570; 1 Steele, 1 Leach, 451. 
 Leach, 28, 36. 
 
 [2] In Pennsylvania, by the act of Assembly, passed 28th March, 1808, (Purd. Ab. new ed. 
 274,) it is enacted, ''that no person arraigned on any indictment, who shall be bound by re- 
 cognizance to abide the judgment of the court, shall be put within the prisoner's bar to plead 
 to the same, or be confined therein during his or her trial, but shall have an opportunity of 
 a full and free communication with his or her counsel." 
 
 [1] In Pennsylvania, it is provided by statute, that no person who may hereafter be 
 arraigned on an indictment, and who shall be bound by recognizance to abide the judgment 
 of the court, shall be put within the prisoner's bar to plead to the same, or be confined 
 therein during his or her trial, but shall have an opportunity of a full and free communica- 
 tion with his or her counsel. Dunlop's Laws of Penn. p. 257. 
 
 [2] When the prisoner, upon his arraignment, totally refuses to answer, insists upon mere 
 
109 APPEARANCE AND PL.EA. 
 
 Where a prisoner, upon his arraignment stated that he was deaf, and 
 upon the indictment being read over to him he appeared not to under- 
 frivolous pretences, or refuses to put himself upon the country, after pleading not guilty, he 
 is said to stand mute. 2 Dyer, 241, b.; Keilw. 70; 2 Inst. 178; 2 Hale, 316, 317; 4 Bla. 
 Com. 324; Hawk. b. 2, c. 38, s. 1; Bum, J. Mute; Williams, J. Mute. 
 
 But if he demurs, or challenges peremptorily more than the number of jurors allowed by 
 law, he will not be regarded as having stood mute by reason of his obstinacy, in the one 
 case, or his subsequent silence in the other. Hawk. b. 2, c. 30, s.' 2, 3 ; 3 Inst. 327 ; Wil- 
 liams, J. Mute. If he is wholly silent, an inquest must be impannelled, to inquire whether 
 he is obstinately mute, or dumb, ex visitatione Dei, which may be by the oath of any twelve 
 persons who may happen to be present. 1 By. & Moo. C. N. P. 78 ; 1 Leach, 452 ; 2 Hale, 
 217; 2 Inst. 177, 178: East. Ent. 385;, Hawk. b. 2, c. 30, s. 5; Williams, J. Mute; see 
 form of swearing the jury, 4 Bla. Com. 328, 329; 1 Leach, 183, 451, 452, 453; Cro. C. C. 
 484; Williams, J. Mute; see form of oath, Cro. C. C. 542, 7th ed._ 
 
 But after an issue has been joined, if the prisoner stand mute, while the jury are in court, 
 the investigation may be taken before them, if circumstances render it requisite. Hawk. b. 
 2, u. 30, s. 5. If they return that he i3 dumb, ex visitatione Dei, (see form of finding, 1 
 Leach, 184, 452, 453,) the court will use every means to convey to him information of the 
 nature of the arraignment; and if he be incapable, in any way, of expressing his desires, the 
 clerk of arraigns will enter for him a plea of not guilty, and the trial will proceed as if he had 
 pleaded. 1 Leach, 452. In this case, it is the duty of the court to examine all the proceed- 
 ings with a critical eye, to take every fair advantage on behalf of the prisoner, and to render 
 him every possible service consistent with the rules of the law. 1 Leach, 452 ; 2 Inst. 177, 
 178; Hawk. b. 2, c. 30, s. 7 ; 4 Bla. Com. 324; Williams, J. Mute. 
 
 In the case of the U. S. v. Hare et al, (Circuit Court Maryland District, May Sessions, 
 1818,) the court decided that if a prisoner charged with a felony against the laws of the Uni- 
 ted States, stands mute, the trial will proceed by jury as if the prisoner had pleaded not 
 guilty. 
 
 Where one indicted for larceny stood mute upon his arraignment, a jury was impanneled, 
 who returned a verdict that he stood mute fraudulently, wilfully and obstinately ; whereupon 
 he was sentenced, as upon conviction. Com. v. Moore, 8 Mass. 402; Eoseoe's Dig. Cr. Ev. 
 174; Turner's case, 5 Ohio, 542. 
 
 If the prisoner answer, but merely foreign to the purpose, and refuse regularly to plead, 
 so as to warrant his trial, it is evident there can be no occasion for any inquest; for his ob- 
 stinacy and ability to speak are sufficiently apparent. And where a man is found to have 
 cut out his own tongue to prevent his answering, he will be regarded as obstinately silent. 
 2 Inst. 178; 4 Bla. Com. 325. 
 
 In England, the punishment of peine forte et dure was, until recently, denounced, as tbe 
 consequence of an obstinate silence. The greatest caution and deliberation were indeed to 
 be exercised before it was resorted to; and the prisoner was not only to have "trina admo- 
 nitio," but a respite of a few hours, and the sentence was to be distinctly read to him, that 
 he might be fully aware of the penalty he was incurring. 2 Hale, 320, 321 ; 4 Bla. Com. 
 325. 
 
 And if the felony were one for which the benefit of clergy might be allowed him on his 
 prayer, the court would allow it though it were not prayed, and that after as well as before 
 judgment. 2 Hale, 321. And it, is even said, that the court ought to examine witnesses, 
 to show a probability of his guilt, before they proceed to this extremity, (2 Inst. 177; 2 Hale, 
 321 ; Hawk. b. 2, c. 30, s. 14;) though this does not appear to be of absolute necessity, and 
 no entry of the investigation need appear on the record. Hawk. b. 2, c. 30, a. 14. If, on 
 such an inquiry, the evidence against him appeared very slight, it seems that he could only 
 be fined and imprisoned for a contempt of the process of justice. Hawk. b. 2, c. 30, s. 15. 
 
 The sentence of penance which was pronounced against those who thus added contumacy to 
 guilt, was indeed exceedingly dreadful. They were to be remanded to prison, and there placed 
 in some low and dark room, laid on the back with scarcely any covering, and iron weights 
 
STANDING MUTE, &c. 109 — 1 
 
 stand it : Gifford, C. J., immediately directed a jury to be impanelled, 
 to try whether he stood mute of malice, or by the visitation of God.(a) 
 
 Where a prisoner,. Avho had already been tried and convicted, but 
 whose trial was deemed a nullity on the ground of some informality 
 in the swearing of the witnesses who gave evidence before the grand 
 jury, was again arraigned upon an indictment for the" same offence, and. 
 refused to plead, alleging that he had already been tried : Lfttledale J., 
 and Vaughan, B., ordered a plea of not guilty to be entered for him, 
 under the above statute.(5) 
 
 But if the jury, upon being so impanelled, find that the prisoner is 
 insane, the court shall record such verdict, and order . the party to be 
 kept in strict custody, in such place and in such manner as to them 
 shall seem fit, until Her Majesty's pleasure shall be known.(e)[3] 
 
 (a) JR. v. Button, 1 Ry. & M. f 8. (c) 39 & 40 G. 3, c. 94, s. 2 ; see ante, p. 
 
 (6) E. v. Bitton, 6 Car. & P. 92. 4, 5. 
 
 more heavy than they could bear placed upon them. In this situation, tliey were to receive 
 no sustenance the first day but three morsels of the worst bread, and on the second day, 
 three draughts of standing water which should be nearest to the prison door, and thus re- 
 main till they died; or, as the ancient judgments ran,. till they answered. 2 Inst. If 8; 
 Keilw. fO; East. Ent. 385; 2 Hale, 319; Hawk. b. 2, c. 30, s. 16; 4Bla. Com. 32f ; Burn; J. 
 Mute. There are slight variations in some of the precedents, but they agree in all the im- 
 portant particulars of this infliction, which was intended that the criminal should- die by 
 famine, cold, and pressure. 2 Inst. If 8. It seems to be matter of dispute, in what manner 
 and at what period it was first introduced, and whether it existed at common, law, or was 
 created by legislative provision. 2 Inst. If 8, If 9 ; 2 Hale, 321, 322 ; 4 Bla, Com. 32f, 328. 
 The statute of Westminster the first (3 Bdw. 1, o. 12,) directs notorious felons, who will not 
 put themselves upon the inquest, "shall have strong and hard confinement, as they which 
 refuse to stand to the common law of the land;" but these words seem very imperfectly to 
 express the sentence which is set forth with so horrible a minuteness. Lord Coke and Hale 
 therefore contend, with great force, that the punishment must have existed. before that act 
 was passed, and that it merely directed the persons who were to hecome the objects of its 
 severity. 2 Inst. If 8, If 9; 2 Hale, 321, 322. But Blaekstone, on the contrary, regards it 
 as altogether of statutable origin, and thinks that it was gradually introduced between the 
 reign of Edward 3, and Henry 4, when the last instance occurs of its infliction. 4Bla. Com. 
 32f, 328. How a cruelty so elaborate could have been introduced, without any express 
 statute to sanction it, seems exceedingly obscure, and will perhaps warrant us in differing 
 from the learned commentator, and assigning it to the earlier and darker periods of our his- 
 tory. The only cause which delayed its abolition until a recent date seems to be, that by 
 the refusal to plead, the criminal escaped conviction, and consequently his blood was not 
 corrupted, nor his lands forfeited by the attainder. 2 Hale, 319; Bro. Abr. Forfeiture, 64. 
 This penalty was therefore preserved, in order to compel the defendant to plead, that the 
 lord might not lose his forfeiture: and instances have occurred, in which the desire of pre- 
 serving the estate to the family has overcome the fear of torture, and induced him to remain 
 obdurate. At length, however, by the 12 Geo. 3, c. 20. this punishment was entirely abro- 
 gated, and the inconveniences arising from the refusal to answer avoided. 
 
 In the United States Circuit Court, Maryland District, May Sess., it was held, in the case 
 of XT. 8. v. Bare and others, that the peine forte et dwe, is unknown to the laws of the United 
 States. 
 
 [2] No insane person can be tried, sentenced to any punishment, or punished for any 
 crime or offence, while he continues in that state. 2.R. S. 69f, sec. 2. When there is rea- 
 
109—2 APPEARANCE AND PLEA. 
 
 (c) Plea. 
 
 Upon being asked whether he was guilty or not guilty, the defend- 
 ant may plead ore tenus "not guilty," of which the clerk of arraigns or 
 clerk of the peace makes a minute on the indictment, and puts it into 
 form, if it afterwards becomes necessary to make up the record. For- 
 merly the clerk of the peace asked the defendant also, how 
 [*110] will you be tried ? and *he answered, "by God and my coun- 
 try." But now, by stat. 7 & 8 G. 4, c. 28, s. 1, if any person, 
 not having the privilege of peerage, being arraigned for treason, felony, 
 or piracy, shall plead thereto a plea of "not guilty," he shall by such 
 plea, without any further form, 'be deemed to have put himself upon 
 the country for trial ; and the court shall, in the usual manner, order a 
 jury for the trial of such person accordingly. [1] 
 
 If, instead of pleading " not guilty," the defendant say that he is 
 "guilty," this is a confession of the offence, which subjects him precisely 
 to the same punishment, as if he were tried and found guilty by ver- 
 dict. But as defendants often imagine that, by pleading guilty, they 
 
 son to believe that the accused is a lunatic or idiot, the most discreet and proper method of 
 determining the question, in an important case, is for the court to empannel a jury to decide 
 whether he be non compos mentis or not ; and if they find for the accused, the trial will be 
 suspended. But other modes may be adopted, in the discretion of the court. 3 Robinson's 
 Prac. 115 ; 2 Va. Cas. 266 ; 1 Mass. Rep. 102 ; Per Beardsley, J. 4 Denio, 9. On this pre- 
 liminary trial, the jurors are sworn in this manner : " Tou shall diligently inquire, and a 
 true verdict return, on behalf of the people of the state of New York, whether A. B., the 
 prisoner at the bar, who now stands indicted for murder, be of sane memory or not, accord- 
 ing to your evidence and knowledge." 13 Mass. Rep. 299. Where a jury empannelled to 
 try whether a person indicted for murder was then insane, were instructed by the court that 
 they were to decide " whether the prisoner knew right from wrong; and if he did, then he 
 was to be considered sane," it was held that the charge was erroneous. And the jury hav- 
 ing found that the prisoner was " sufficiently sane in mind and memory to distinguish be- 
 tween right and wrong," it was held that the verdict was defective. Freeman v. The People, 
 4 Denio, 9. The test of insanity, when it is set up to prevent a trial, is whether the prisoner 
 is mentally competent to make a rational defence ; and, when alleged as a defence to an 
 indictment, it is whether at the time of committing the act, he was laboring under such 
 mental disease as not to know the nature and quality of the act he was doing, or that it 
 was wrong. Ibid. On such preliminary trial, the defendant is not entitled to peremptory 
 challenges ; but challenges for cause may be made. Ibid. In a case recently tried in Eng- 
 land, the prisoner having been indicted for a misdemeanor in uttering seditious words, and 
 upon his arraignment refusing to plead, and showing symptoms of insanity, and an inquest 
 being forthwith taken under a statute passed for that purpose, (39 and 40 Geo. 3, ch. 94, 
 sec. 2,) to try whether he was insane or not ; it was held, first, that the jury might form 
 their own judgment of the present state of the prisoner's mind from his demeanor while the 
 inquest was being taken ; and might thereupon find him to be insane, without any evidence 
 being given as to his present state ; secondly, that upon the prisoner showing strong symp- 
 toms of insanity in court during the taking of the inquest, it became unnecessary to ask him 
 whether he would cross-examine the witness, or would offer any remark on the evidence. 
 Queen v. Goode, 1 Add. & Ellis, 636. 
 
 [1] The revised statutes of Massachusetts provide that it shall not be necessary to ask the 
 defendant how he will be tried. Rev. Stat, of Mass. oh. 136, sec. 28. 
 
TRAVERSE. 110 
 
 are likely to receive some favor from the court in the sentence that 
 will be passed upon them,the judge very frequently undeceives them 
 in that respect, and apprizes them that their pleading guilty will make 
 no alteration whatever in their punishment. If, however, they still 
 persist in their plea of guilty, it is then recorded by the clerk of arraigns 
 or clerk of the peace ; and in the record, when made up, the judgment 
 immediately follows the plea. [2] 
 
 (d) Traverse. 
 
 Formerly, in all cases of misdemeanors, the defendant was not bound 
 to submit to be tried at the same assizes or sessions at which the bill 
 was found, but had a right to traverse it, that is to say, to put off his 
 trial, until the next following assizes or sessions for the same county. 
 This was afterwards somewhat modified by stat. 1 Gr. 4, c. 4. 
 
 But now, by stat. 14 & 15 Vict. c. 100, s. 26, that statute is repealed ; 
 and by sect. 27, no person, prosecuted, shall be entitled to traverse or 
 postpone the trial of any indictment found against him at any session 
 of the peace, session of oyer and terminer, or session of jail delivery: 
 provided always, that if the court, upon the application of the person 
 so indicted or otherwise, shall be of opinion that he ought to be allowed 
 a further time, either to prepare for his defence or otherwise, such court 
 may adjourn the trial of such person to the next subsequent session, 
 upon such terms as to bail or otherwise as to such court shall seem 
 meet, and may respite the recognizances of the prosecutor and witnes- 
 ses accordingly, in which case the prosecutor and witnesses shall be 
 bound to attend to prosecute and give evidence at such subsequent ses- 
 sion without entering into any fresh recognizance for that purpose. [3] 
 
 [2] This is the highest kind of conviction of which the case admits. 2 Hale, 225. It may 
 be received after the plea of not guilty is recorded, whenever the defendant wishes to with- 
 draw his plea of not guilty and confess the accusation. 2 Hawk. P. C. ch. 31, sec. 1 ; 3 Hill 
 Rep. 395. But the courts are very reluctant to receive and record such confessions, espe- 
 cially where the punishment is capital, and will frequently, out of tenderness of the life of 
 the prisoner, advise him to retract it and plead not guilty. 2 Hale, 225. And where he 
 freely, in court, discloses the facts of his case, and demands the opinion of the judges whe- 
 ther they amount to felony, upon which they reply in the affirmative, they will refuse to 
 record the disclosure, and admit him to the full advantage of a trial upon the evidence of the 
 witnesses. Ibid. Sometimes, in case of mere personal and trifling injuries, the prosecutor 
 and defendant agree in private ; the latter comes into court and pleads guilty to the indict- 
 ment ; and upon proving a general release given by the former, submits to a small fine for 
 the breach of the peace which his conduct has occasioned. In the higher description of 
 offences, when the defendant pleads guilty, the clerk writes on the indictment the word 
 "confesses." Upon this the confession is recorded, and the prisoner is set aside until the 
 time of passing the sentence. 
 
 [3] It is said that the technical term traverse from transverto, to turn over, is applied to an 
 issue taken from an indictment for a misdemeanor, and means nothing more than turning 
 over, or putting off the trial to a following session ; and that thus it is that the court asks 
 the party whether he is ready to try then, or will traverse to the next session, though some 
 
 36 
 
110 — 1 APPEARANCE AND PLEA. 
 
 3. Special Pleas. 
 
 (a) Pleas in abatement. 
 
 A defendant is not allowed in criminal cases, as in civil actions, to 
 plead in abatement that another indictment is pending against him 
 
 have referred its meaning originally to the denying, or taking issue upon an indictment 
 without reference to the delay of trial, and which seems more correct. 4 Blk. Com. 351. 
 
 In Massachusetts, the statute provides that every person held in prison upon an indict- 
 ment, shall, if he require it, be tried at the next term of the court, after the expiration of 
 six months from the time when he was imprisoned, or shall be bailed upon his own recog- 
 nizance, unless it shall appear to the satisfaction of the court that the witnesses on behalf of 
 the government, have been enticed or kept away, or are detained and prevented from 
 attending the court, by sickness or some inevitable accident. Rev. Stat, of Mass. ch. 136, 
 sec. 30. 
 
 See Com. v. Prophet, 1 Browne, 135 ; RespuMca v. Arnold, 3 Teates, 268 ; State v. Froner, 
 2 Bay, 96. 
 
 There are several cases in which, upon a proper application, the court will put off the trial. 
 And it has been laid down that no crime is so great, and no proceedings so instantaneous, 
 but that the trial may be put off, for sufficient reasons shown. 1 Chit. Cr. L. 491. And 
 in general the trial may be postponed on the ground of the publication of a libel tending to 
 influence the minds of the jurors in forming their decision. 4 T. R 285 ; 1 Burr. 510 ; 3 
 Brod. & Bing. 272. So the illness of the defendant's attorney has been allowed as a 
 sufficient reason. Say. Rep. 63 ; Bac. Abr. Trial, (H.) 
 
 But the most usual ground for the delay is the absence of a material witness^ which, if 
 properly verified, will be sufficient, on an indictment for treason, felony or misdemeanor, at 
 the instance of a defendant. Bac. Abr. Trial, (H.) If, however, the witness was not absent 
 at the time notice of trial was given, it seems the court will not grant the application on 
 account of any subsequent absence. Ibid. ; Barnes, 442. And where the witnesses are in 
 a foreign country and not likely soon to come hither, the court have refused to allow it, 
 (3 Burr. 1514; 8 East, 37 ; 1 Mass. Rep. 6 ;) though as the witnesses may be examined on 
 interrogatories sent out abroad, it should seem that when the evidence is very material, the 
 trial may be delayed till such examination has been obtained. 1 Chit. Cr. L. 492. But 
 when the defendant has been guilty of laches or delay, the court will refuse to put off the 
 trial, or at least will impose terms upon him, as that he shall consent to examine upon 
 interrogatories a material witness for the people. Ibid.; 1 Black. Rep. 514; 2 M. & 
 S. 602. 
 
 To obtain an order for putting off the trial, an affidavit must be made, stating the names 
 and places of abode of the absent witnesses, and that they are material to the prosecution or 
 defence. 8 East, 35 ; Post. 2. This affidavit should state at what time the witnesses return 
 may be expected; but this may be in some case dispensed with. 1 Black. Rep. 514; 1 
 Barnard, 39. It is also necessary the affidavit should be positive that the absent wit- 
 ness is material, and not merely that the deponent believes him to be so. Ibid. ; Bac. 
 Abr. Trial, (H.) 
 
 "When there is no cause for suspicion of mere desire to delay, it will be sufficient generally 
 to swear that the absent party is a material witness, without whose evidence the party can- 
 not safely proceed to trial ; that he has endeavored, without effect, to serve him with a 
 subpcena, and that there is a reasonable ground to expect his future attendance. 1 Chit. 
 Cr. L. 493. 
 
 This affidavit must, in general, be made by the party applying, (Ibid. ; Barnes, 437 ; 9 
 Pick. 515 ;) though in some cases his attorney, or a third person, has been allowed to do it 
 in his stead, as if he be abroad or unable to appear. Peake's N. P. 97 ; Barnes, 448. 
 
 Notice of an application to put off the trial is not usually given, in this state. 
 
PLEAS IN ABATEMENT. Ill 
 
 for the same offence ;(a) *and if he go on to show that he [*111] 
 was acquitted or convicted on the former indictment, the plea ^ 
 is then a plea in bar, not in abatement. But the only pleas in abate- 
 ment in criminal cases are, that the indictment gives the defendant no 
 christian or first name or a wrong one, no surname or a wrong one, no 
 addition of degree or mystery or a wrong one. But this is now of no 
 use ; for by stat. 7 G. 4, c. 64, s. 19, no indictment or information shall 
 be abated by reason of any dilatory plea of misnomer, or of want of 
 addition or wrong addition of the party offering the plea, but in such 
 a case the court shall forthwith cause the indictment or information to 
 be amended according to the truth, and shall call upon the party to 
 plead thereto, and shall proceed as if no dilatory plea had been pleaded. 
 And by stat. 14 & 15 Vict. c. 100, s. 24, no indictment shall be holden 
 insufficient, for want of, or imperfection in, the addition of any defend- 
 ant.(5)[l] 
 
 (a) 2 Hawk. c. 34, s..l. (£) See ante, p. 78. 
 
 When the motion is granted, it is seldom for more than the next term or session of the 
 court. But upon the particular circumstance of the case, the court will sometimes put off 
 the trial to a more distant time. 1 Chit. Cr. L. 494. 
 
 The above observations apply to the putting off a trial by express order of the court, on 
 the application of either party. The trial of a cause may also be put off or postponed by the 
 mere laches or neglect of the prosecutor to bring it on. In cases of this kind, the revised 
 statutes give a remedy to the prisoner, by providing for his discharge, if he shall not be 
 brought to trial before the end of the next term of the court after the indictment is found ; 
 unless good cause shall be shown for detaining him. 2 R. S. 737, sees. 28, 29, 30. 
 
 [lj As we have no corresponding statute, the plea in abatement in criminal cases is still 
 in use here. 
 
 Any misnomer, in general, is matter for abatement : (State v. Lorey, 2 Brevard, 395,) thus, 
 ' where the indictment charged the defendant as George Lyons, it was held, he could well 
 abate it by showing his true name was George Lymes. iA/rnes v. State, 5 Porter, 236. 
 Want of addition is generally ground for abatement. State v. Suglies, 2 liar. & M'Hen. 479 ; 
 1 Ch. C. L. 204 ; see per contra, State v. Newman, 2 Car. Law. Rep. 74. And a wrong 
 addition can be taken advantage of in the same manner. Thus, in ah indictment on the 
 statute of Maine, prohibiting the sale of lottery tickets giving the accused the name of lottery 
 vendor, when his proper addition was broker, furnishes good cause for abating the indict- 
 ment. State v. Bishop, 15 Maine Rep. 122. 
 
 When a plea in abatement is found in favor of the defendant, the judgment in case of mis- 
 demeanor, is, that he be not compelled to answer the indictment, but depart the court with- 
 out day. 2 Hale, 238 ; 10 East, 88, where see form. But, on an accusation for a capital 
 crime, after the indictment has been abated for misnomer, the court will not dismiss the 
 prisoner, but cause him to be indicted de novo, by the name disclosed in his plea, to which 
 we have seen he can, make no second objection. Cro. Car. 371 ; 2 Hale, 176, 238 ; Hawk, 
 b. 2, c. 34, s. 2. Williams, J. Misnomer and Addition, IT. And if the grand jury be not 
 discharged, another bill may be immediately preferred, whatever may be the description of 
 the offence. 2 Hale, 176, 238; Cro. C. C. 21; Hawk. b. 2, c. 34, s. 2; Dick. Sess. 167. 
 If it be pleaded by one of several defendants, and allowed, it will only quash the indictment 
 as to him, without affecting it as to those who are correctly indicted. Rep. temp. Hardw. 
 303 ; 2 Hale, 177 ; Bac. Abr. Indictment. G. 2 ; Williams, J. Misnomer and addition, IL 
 
1H_1 APPEARANCE AND PLEA. 
 
 (£) Auterfois acquit. 
 
 That the defendant was formerly indicted and acquitted, is a good 
 plea in bar to a subsequent indictment for the same offence ;(a) for the 
 law will not suffer a man to be twice put in jeopardy for the same of- 
 fence.(Z>)[2] 
 
 (a) 2 Hale, 241, 242 ; 2 Hawk. c. 35, s. 1. (5) Id. 
 
 [2] This principle is sanctioned and enforced in different forms of words in most of the 
 constitutions of the several states, and in the constitution of the United States. See Const, of 
 the United States, 5th Article of the amendments. Commonwealth v. Boby, 12 Pick. 502 ; People 
 v. Goodwin, 18 Johns. 201 ; State v. WKee, 1 Bailey, 651 ; State v. Norvell, 2 Terger, 24 ; 
 Rev. Stat, of Mass. p. 115 ; State v. Beriham, 1 Conn. 418, 419. The maxim, that a man 
 ought not to be brought twice into danger for one and the same offence, Mr. Justice Story- 
 remarks, "is embodied in the very elements of the common law, and has been uniformly 
 construed to present an insurmountable barrier to a second prosecution, where there has 
 once been a verdict of acquittal or conviction regularly had upon a sufficient indictment." 
 TJ. States v. Gibert, 2 Sumner, 42. 
 
 For the decisions in reference to putting one on trial a second time after a jury has been 
 discharged, being unable to agree, or for other cause, see Commonwealth v. Cook, 6 Serg. & 
 R. 511 ; Commonwealth v. Clue, 3 Rawle, 498 ; State v. Ganniques, 1 Hayw. 241 ; Spier's 
 case, 1 Devereaux, 491 ; State v. Ephraim, 2 Dev. & Bat. 162 ; Mahaler v. State, 10 Terger, 
 532 ; State v. Ned, 1 Porter, 188. 
 
 In the above cases it was held that a person put on trial before a jury, who were dis- 
 charged because they were unable to agree or for any cause but one of necessity, could not 
 be put on trial again before another jury. The contrary, however, has been held in many 
 other cases. See V. States v. Perch, 9 Wheat. 579 ; Commonwealth v. Bowden, 9 Mass. 194; 
 Commonwealth v. Purchase, 2 Pick. 521 ; Moore v. State, 1 Walker, 134 ; U. States v. Shoe- 
 maker, 2 M'Lean, 114. 
 
 The first view has been taken by the courts of Pennsylvania, North Carolina, Tennessee, 
 and to a certain extent, of Alabama. State v. Ned, 1 Porter, 188. 
 
 In Alabama, in a late case, after a careful review of the subject, the following points were 
 made : 1st. That courts have not, in capital cases, a discretionary authority to discharge a 
 jury after evidence given. 2d. That a jury "is, ipso facto, discharged by the termination of the 
 authority of the court to which it is attached. 3d. That a court does possess the power to 
 discharge, in any case of pressing necessity, and should exercise it whenever such a case is 
 made to appear. 4th. That sudden illness of a prisoner, or a juror, so that the trial cannot 
 proceed, are ascertained cases of necessity, and that many others exist, which can only be 
 defined when particular cases arise. 5th. That a court does not possess the power, in a 
 capital case, to discharge a jury because it cannot, or will not agree. 
 
 That, on the contrary, no man is in jeopardy until verdict rendered has been held by the 
 Supreme Court of the United States, by Washington, J., Story, J., and M'Lean, J., sitting in 
 tkeir several circuits, and by the courts of Massachusetts, New York, and Mississippi. 
 
 New York. — Autrefois acquit is not a good plea, if the former indictment was so far defec- 
 tive, that no good judgment could have been given upon it. The People v. Barrett, 1 
 Johns. 65. 
 
 Nor will a prisoner be deemed to have been put on his trial, where he challengsd all the 
 jurors except eight, who were sworn ; and upon opening the box to draw out talesmen, it 
 was found, from some neglect, to contain no names of talesmen, in consequence of which 
 the prisoner was remanded : And it was held that such prisoner might be afterwards tried. 
 State v. Bwket, 2 Con. Ct. 155. And where judgment is arrested, after conviction, on an 
 indictment for a felony, this is not a bar to a second indictment for the same offence ; although 
 the second indictment be in every respect similar to the first. People v. Gasborous, 13 Johns. 
 
AUTERFOIS ACQUIT. 111—2 
 
 So, if a man be acquitted on an indictment for murder, he cannot 
 afterwards be indicted for manslaughter of the same person, for he 
 
 351. So, a former conviction procured by the fraud of the defendant, is no bar to a subse- 
 quent prosecution. State v. Little, Adams, 257 ; State v. Browne, 16 Conn. 54. A convic- 
 tion of a breach of the peace before a magistrate on the confession or information of the 
 offender himself, is no bar to an indictment by the grand jury for the same offence. Com- 
 monwealth v. Alderman, 4 Mass. 477. But, if after a prisoner has pleaded to an indictment, 
 and. after the jury has been sworn, and evidence offered, the public prosecutor, without the 
 consent of the prisoner, withdraw a juror, merely because he is unprepared with his evidence 
 the prisoner cannot afterwards be tried on the same indictment; and if he be tried and con- 
 victed, judgment will be arrested, People v. Barrett, 2 Caines, 304. 
 
 "Where an assault and battery has been made upon two, and both were wounded by the 
 same stroke, and the offender has been legally convicted before a court of competent juris- 
 diction for the breach of the peace in the assault and battery upon the one, an indictment 
 cannot afterwards be maintained against him for the assault and battery upon the other. 
 State v. Damon, 2 Tyler, 387. See State v. Benham, 7 Conn. 414; Commonwealth v. 
 Andrews, 2 Mass. 409. See Burgess v. Sugg, 2 Stew. & Port. 341 ; Gommonwoalth v. Chi- 
 chester, 1 Yirg. Cas. 312. 
 
 If a prisoner be acquitted of burning the barn of Josiah Thompson, on the ground of a mis- 
 direction of the owner, he cannot plead this acquittal in bar of an indictment for burning the 
 barn of Josias Thompson, the real. owner. Commonwealth v. Mortimer, 2 Virg. Cas. 325. 
 See also Commonwealth v. Wade, 1 7 Pick. 400. 
 
 An acquittal upon an invalid and insufficient indictment is no bar to another indictment 
 for the same offence. State v. Ray, 1 Bice, 1 ; as, if the offence is alleged to have been 
 committed in another district than the one in which the bill was found. So if an impossible 
 date is assigned to the commission of the offence, as a day posterior to the finding of the 
 indictment, (Id.) Commonwealth v. Cunningham, 13 Mass. 245 ; Hite v. State, 9 Yerger 
 357 , Commonwealth v. Gwrtis, Thateb. C. C. 202 ; Gerard v. People, 3 Scarnmon, 363 ; 
 State v. Risler, 1 Rich. 219; Commonwealth v. Cook, 6 Serg. & R. 577; Same v. Cine 3 
 Rawle, 498 ; Same v. Purchase, 2 Pick. 521 ; State v. Woodruff, 2 Day, 504. 
 
 In Massachusetts, it is provided by statute that no man shall be held to answer on a second 
 indictment for any offence, of which he has been acquitted by the jury, upon the facts and 
 merits, on a former trial ; and the former acquittal, unless produced by a variance between 
 the indictment and proof, or by a technical exception, may be pleaded in bar. In Vermont, 
 the same provision forms part of the revised statates. Rev. Stats, of Mass. ch. 123, sees. 4 
 and 5 ; Rev. Stats, of Verm. ch. 93. 
 
 If a man be committed for a crime, and no bill be preferred against him, or if it be thrown 
 out by the grand jury so that he is discharged by proclamation, he is still liable to be indicted. 
 2 Hale, 243. So the entry of a nolle prosequi, by the competent authority, does not put an 
 end to the case, and is no bar to a subsequent indictment for the same offence. U. S. v. Shoe- 
 maker, 2 M'Lean, Rep. 114 ; Com v. Wheeler, 2 Mass. 172 ; Com. v. Lindsay, 2 Virg. Cas. 345 • 
 State v. Haskett, 3 Hill, S. C. R. 95. " ' , ' 
 
 " If in civil cases the law abhors a multiplicity of suits, it is yet more watchful in criminal 
 cases that the erown shall not oppress the subject, or the government the citizen by unrea- 
 sonable prosecutions." Per Drake, J. in State v. Cooper, 1 Green's Rep. 375. I n state v 
 Inglis, 2 Hayw. Rep. 4, A. had been indicted and convicted of an assault and battery upon 
 B. and afterwards, he was prosecuted along -with others for a riot, and for beating and im- 
 prisouing B. ; both offences grew out of the same transaction, and the former suit being re- 
 lied on by A., it was held a bar. " The state," say the court. " cannot divide an offence 
 consisting of several trespasses into as many indictments as there are acts of trespass that 
 would separately support an indictment, and afterwards indict for the offence compounded 
 of them all ; as for instance, just indiet for the assault, then for a battery, then for imprison- 
 ment, therefor a riot, then for mayhem, &c. ; but upon an indictment for any of these often- 
 
HI 3 APPEARANCE AND PLEA. 
 
 might have been convicted of manslaughter on the former indictment.(a) 
 So, if a man be indicted for burglary and larceny, and acquitted, he 
 
 (a) 2 Hale, 246. 
 
 ces, the court will inquire into the concomitant facts and receive information thereof, by way 
 of aggravating the fine or punishment, and will proportion the same to the nature of the 
 offence as enhanced by all these circumstances, and no indictment will afterwards lie for any 
 of these separate facts done at the same time." Id. p. 5. So as to a former conviction under 
 like circumstances. Commonwealth v. Kinney, 2 Virg. Oas. 139. The reporter (id. p. 140,) 
 adds, by way of note, as follows : "In this case the court was of opinion, that as the infe- 
 rior offence of an assault and battery was included in the higher offence of a riot, and con- 
 stituted a part of it, and the commonwealth had already elected to indict, and had actually 
 convicted the defendant of that inferior offence, it was barred from prosecuting the defend- 
 ant for the higher offence ; for if this proceeding were allowed, then the defendant having 
 been already fined and imprisoned Tor the battery, might be again placed in peril of another 
 fine and imprisonment for a riot of which the battery of which he had before been convicted 
 was a part and perhaps the chief part. 
 
 "An acquittal of manslaughter will bar a future prosecution for murder. ] Chitty, 455, 
 6 ; 2 Hale, 246. And an acquittal of murder is a bar to an indictment for petty treason ; 
 Poster, 329. And I presume by parity of reasoning, a conviction of manslaughter will bar a 
 prosecution for murder, and a conviction of murder a prosecution for petit treason ; for the 
 plea of autrefois convict, depends on the same principle with the plea of autrefois acquit. 1 
 Chitty, 461. 
 
 "In cases of this kind, where two grades of offence are the result of the same act, it would 
 seem that the attorney for the commonwealth should either begin with the higher, and, on 
 failure, prosecute for the lower; or unite both offences in the same indictment under separate 
 counts. Thus the three defendants might have been indicted for a riot and beating a man. 
 If convicted, their punishment covers the whole ground, and they or either of them cannot 
 be indicted for the battery alone. If acquitted, however, they could not plead autrefois 
 acquit to a second indictment charging them with the battery, because, although they might 
 not be guilty of a riot, yet they or some of them, might be guilty of the inferior offence. See 
 2 Leach, 116, Vandercomb's case, and 2 East's C. L. 519. But the better way is to charge 
 the battery in the same indictment with the riot, under separate counts ; there is no doubt 
 that several misdemeanors may be joined in the same indictment. 1 Chitty, 254 ; 2 Chitty, 
 489, note -.*' (id.) 
 
 The above distinction of the learned reporter between a conviction and acquittal, must de- 
 pend on the question whether the indictment for the higher offence necessarily involve the 
 lower. If it do, then no matter whether the result were a conviction or acquittal ; the whole 
 ground was covered and shall not be gone over again in whole or in part. To warrant 
 the trial for the battery, after acquittal of the riot, we must first learn that there cannot be 
 a conviction of the former under a simple indictment for the latter ; for then, in respect to 
 the verdict of acquittal, we cannot see that the whole ground was covered, though it would 
 be by a verdict of conviction. 
 
 The severance of the subject matter in any form, and prosecuting for part, followed by a 
 trial on the merits, equally bars the whole. A criminal has in his possession forged bank 
 bills on different banks, with intent to pass them. He is indicted and tried for the intent in 
 respect to one of the bills ; the whole being an entire offence, this will bar other indictments 
 in respect to any other of the bills, though on a bank different from the first. State of Con- 
 necticut v. Benham, 7 Conn. Rep. 414. The decision is ably maintained in argument, and 
 illustrated by several authorities from the English books, by "Williams, J. who delivered the 
 opinion of the court, (id. 417, 18;) thus: "It has been decided that a person indicted for 
 stealing nine one pound notes, may be convicted upon proof of stealing only one. Rex v. 
 John., 3 Mau. & Selw. 539, 548; Hex v. Clark, 1 Brod. & Bing. 473. There, the substance 
 
AUTERFOIS ACQUIT. 111—4 
 
 cannot afterwards be indicted for the, larceny. After being indicted 
 and acquitted on an indictment for felony, he cannot afterwards be in- 
 
 of the offence is stealing notes. Here, the substance of the offence is having in possession 
 counterfeit bills or notes. The number may add to the evidence of guilt, but not to the 
 number of the offences. In an action for the penalty for insuring tickets in a lottery, where 
 ten tickets were insured at one and the same time, Lord Kenyon held that but one penalty 
 could be recovered. Holland, q. t. v. Duffin, Peake's Cas. 58," &c. A plea of a former ac- 
 quittal of the defendant, for an assault and battery, by a justice of the peace, was held a 
 sufficient bar to an indictment alleging the same offence with the additional aggravating cir- 
 cumstance of the complainant's life having been thereby endangered. Commonwealth v. Cun- 
 ningham, 13 Mass. Rep. 245. Where there was an assault and battery upon A. & B. by the 
 same stroke, and the offender was legally convicted of the offence upon one, held that this 
 barred a prosecution for the offence upon the other.. State v. Damon, 2 Tyl. Rep. 390. The 
 prisoner had been indicted and tried for the murder of Mary Anne Condon, and convicted of 
 manslaughter. He had before been tried for the murder of Mary Cormack, and convicted of 
 manslaughter, and received the benefit of clergy. The deaths of both proceeded from the 
 same act ; but Mary Anne Condon was not dead at the time of the first trial. Tet held, 
 that the first allowance of clergy protected the prisoner against the second trial. Rex v. 
 Jennings, Russ. & Ry. 388. In Sex v. Smith, (3 Carr. & Payne, 412,) two indictments for the 
 same offence having been found, one charging it capitally and the other as a misdemeanor, 
 the prosecution was put to elect which it would go upon ; and an acquittal was directed as 
 to the other. " Under the numerous British statutes, imposing severe penalties, and even 
 taking away the benefit of clergy from larcenies perpetrated under certain specified cir- 
 cumstances, it is the practice to indict the crime, with all its aggravations under the statute ; 
 and if the aggravating circumstances are not proved, to convict of the simple larceny only. 
 
 1 have met with no instance of an attempt on the part of the crown, after indicting for a 
 simple larceny, and establishing that, to proceed by another indictment to establish the 
 higher offence." Per Drake, J, in State v. Cooper, 1 Greenl. Rep. 375. A man was con- 
 victed of arson, in burning S.'s dwelling house. In doing so, he caused the death of H who 
 was burned in the house ; for which murder he was indicted ; but being arraigned, he plead- 
 ed autre fois acquit, or rather the whole matter specially, which was allowed as a good plea 
 in bar of the indictment for the higher crime. , Drake, J. said, the proper course would have 
 been to have indicted him for the murder, laying the means to have been by the arson, in 
 which case he might have been acquitted of the former and convicted of the latter, and so 
 the whole offence have been expressly covered. But he should not be deprived of his plea, 
 because the state chose to indiet and convict him for the inferior offence, the evidence as to 
 both being identical. He likens the case to burglary and stealing, and a conviction of the 
 latter, which he says shall bar an indictment for the former. State v. Cooper, 1 Green's 
 Rep. 361, 312, 314. 
 
 In New York there are some statute provisions allowing conviction of an inferior degree 
 of the offence indicted ; but forbidding the conviction of an assault with intent to commit 
 the crime, or of an attempt, when it shall appear that the crime was actually perpetrated. 
 
 2 R. S. 102, §§ 26, 27. The 28th section (p. 102,) declares the convictio nor acquittal on a 
 charge of one degree of crime, a bar to prosecutions for any other degree, and for any attempt 
 to commit the same or any other degree. 
 
 There are certain decisions which it is difficult to reconcile with the above doctrine. Such 
 seems to be the case of Bailey v. Taylor, (2 Bail. Rep. 49,) where it was held that if one 
 act comprise the requisite ingredients of two offences, the defendant may be prosecuted suc- 
 cessively for each. And see the State v. Yancey, 1 N. Car. Law Reps. 519. So also with 
 respect to the case of the Commonwealth v. Boby, 12 Pick. 496, where it was held that 
 conviction for an assault with intent to murder, could in no case be pleaded in bar to an in- 
 dictment for the murder itself. 
 
 Other cases come in as exceptions to the rule. Thus, if A. steal the goods of B. and on 
 the next day steal the goods of C. ; and D. becomes the receiver of all, at the same time and 
 
HI 5 APPEAKANCE AND PLEA. 
 
 dieted for an attempt to commit it, for he might have been convicted 
 for the attempt on the previous indictment for the felony.(a) For the 
 same reason, a man indicted and acquitted on an indictment for rob- 
 bery, cannot afterwards be indicted for an assault with intent to com- 
 mit it ;(&) a man indicted and acquitted for a misdemeanor, which upon 
 the trial, appears to be a felony, cannot afterwards be indicted for the 
 felony ;(c) so, a person indicted and acquitted for embezzlement, can- 
 not afterwards be indicted as for a larceny ; or if tried and acquitted 
 for a larceny, cannot afterwards be indicted as for embezzlement, upon 
 evidence of the same facts ;(d) or if a man be indicted and acquitted of 
 having, with others received stolen goods, he cannot afterwards be in- 
 dicted for separately receiving them.(e) If a man be indicted and ac- 
 quitted of obtaining gooHs by false pretences, he cannot afterwards be 
 indicted upon the same facts as for a larceny ;(g) but if he be indicted 
 and acquitted of a larceny, he may afterwards be indicted upon the 
 
 (a) See 14 & 15 Viot o. 100, s. 9. (d) 14 & 15 Vict. o. 100, s. 13. 
 
 (6) Id. s. 11. (e) Id. B. 14. 
 
 (c) Id. b. 12. (s) See U8(J. 4, c. 29, s. 53. 
 
 by one act ; a conviction for receiving the goods stolen from A. is no bar to another indict- 
 ment for receiving the goods stolen from 0. For the guilt of the accessory, has relation to 
 the crime of the principal, and as the latter has committed two offences, so has the former. 
 Commonwealth v. Andretvs, 2 Mass. Rep. 409. 
 
 An acquittal on an indictment for forging and utterring an order, is no bar to a subsequent 
 indictment for a misdemeanor in obtaining goods on the same order, by using it as a false 
 token. Commonwealth V. Quann, 2 Virg. Cas. 89. In Virginia, a plea of autrefois acquit or 
 convict by an examining court, must show the crime charged there to have been the same 
 offence as that charged in the indictment to which the former trial is interposed as a bar. 
 Commonwealth v. Somerville, 1 Virg. Oas. 164. Where a single act combines the requisite 
 ingredients of two distinct offences, it has been held, in South Carolina, that the defendant 
 may be separately indicted and punished for each ; e. g. unlawfully trading with a slave, 
 and by the same act knowingly receiving stolen goods from him ; for the necessity of prov- 
 ing the stealing and scienter, in the last case, shows the point to be different from that in 
 the former, which is sustained by showing a mere dealing with the slave. State v. Taylor, 
 2 Bail. 49. See Conant v. Raymond, infra. Proof of receiving stolen goods, knowing them 
 to be stolen, will not support an indictment for larceny of the same goods. The latter is the 
 principal offence : the former the mere accessory ; and an acquittal or conviction of the one, 
 will not bar a prosecution for the other. Ross v. The State, 1 Blackf. 390, 1. That the 
 counterfeit bill for the passing of which the prisoner is now indicted, waa given in evidence 
 against him on a former trial for passing another bill, will not render such former suit a bar. 
 United States v. Randenbush, 8 Pet. 288. In Kentucky, a trial of bastardy, on a warrant 
 charging the birth to have been one day, will not bar a second trial, on a warrant stating a 
 different day ; for the day is material. Burnett v. Commonwealth, 4 Monroe, 106, 1, 8. 
 See also, Rex v. Smith, 3 Barn. & Cress. 502. An indictment was against three persons 
 jointly, for obstructing a highway. The evidence was that each separately obstructed it on 
 his own farm. The variance was held fatal, because a trial on this joint indictment would 
 not bar separate indictments for each offence. The indictment should have charged he 
 offences to have been several, and then the defendants might have been severally convicted 
 or acquitted. The Commonwealth v. M' Chord, 2 Dana, 242. 
 
AUTERFOIS ACQUIT. Ill — 6 
 
 same facts for obtaining the goods or money under false pre- 
 tences.^) *If on a former indictment against an accessory be- [*112] 
 fore the fact, which specially charged him with inciting, &c, 
 he was acquitted, he may afterwards be indicted as principal ;(&) but if 
 he were indicted as principal on the former occasion, it would be oth- 
 erwise. [1] 
 
 {a) R. v. Henderson etal, Car. & M. 328. (6) 2 Hawk. u. 35, s. 12. 
 
 [1] An acquittal upon an indictment for manslaughter, is, it seems, a bar to an indictment 
 for murder, for if the defendant were innocent of the modified offence he could. not be guilty 
 of the same fact with the addition of malice. Post. 329; 4 Coke Rep. 45, G; 2 Hale. 246; 
 12 Pickering, 504. But in Pennsylvania, it is said that an acquittal for murder, is no bar to 
 an indictment for an involuntary manslaughter, which is there a misdemeanor. Com. v. Ga- 
 ble, TSerg. & Rawle, 423. A conviction for an assault with intent to kill would be no bar 
 to an indictment for murder. Com. v. Roby, 12 Pick. 496. So an acquittal for larceny would 
 not-prevent a prosecution for burglary with intent to steal. It has been said, in Connecticut, 
 that a conviction for an assault and battery with an intent to commit a rape was a bar to a, 
 subsequent indictment for rape. The subject arose on the question whether pToof of a rape 
 would sustain an indictment for an assault with intent to commit a rape, and the court held 
 that it would and that the doctrine of merger did not apply. Whart. Cr. Law, p. 142. 
 
 In Massachusetts, where; to an indictment for receiving stolen goods which were the pro- 
 perty of A., the defendant pleads in bar, a former indictment, conviction and judgment for 
 receiving stolen goods, the property of B., and then alleges that the two parcels were re- 
 ceived by him of the same person, at the same time, and in the same package, and that the 
 act of receiving them was one and the same, the plea was held insufficient. Gom.v. Thomas 
 Andrews, 2 Mass. Rep. 409. But in cases of felony, where one of the offences is a necessary 
 ingredient of the other, and where the state has selected and prosecuted it to conviction, it 
 is said there can be no farther prosecution on the other. State v. Cooper, 1 Green. Rep. 
 361; State v. Shepard, 1 Conn. Rep. 54. 
 
 It Was held in Alabama, in the case of State v. Standifer et at, 5 Porter Rep. 523, that to 
 an indicement for assault on J. L. with intent to murder, it cannot be pleaded in bar that 
 the defendant had previously been acquitted on an indictment for the murder of L. L , the 
 transactions being averred to have been identical. But in Virginia, (Com. v. Kinney, 2 Virg. 
 Cas. 159,) where the defendant with two others was indicted for riotously and routously as- 
 sembling to disturb the peace, and being so assembled, did riotously and routously beat, 
 wound and ill-treat one K. M., and pleaded that he had been heretofore indicted for an as- 
 sault and battery on the said H. "W., being the same offence with which he is now charged, 
 and in Vermont it has been laid down that where a man by the same blow wounds A. and 
 B., and he is convicted for the assault and battery on A., he cannot afterwards be tried for 
 the assault and battery on B. State v. Damon, 2 Tyler, 390. But this decision seems to be 
 opposed to the weight of authority. In Virginia, in the caso of Vauglian v. Com., 2 Virg. 
 Cas. 273, it was held that if a person be indicted for shooting S. W., and acquitted thereof, 
 and then indicted (or shooting J. W., the plea of auterfois acquit will not be supported, al- 
 though the same act of shooting is charged in each indictment; for the jury who tried tho 
 first indictment might have acquitted the prisoner on several grounds which would not affect 
 the second trial, as that the shot did not wound and strike S. W., or that he did not shoot 
 S. W. with intent to maim, disfigure, disable or kill the said S. W., &c. 
 
 A person may be indicted for an assault committed in view of the court, though previously 
 fined for the contempt. The plea of auterfois convict will not avail him, because the same 
 act constitutes two offences ; one violates the law which protects courts of justice, and stamps 
 an efficient character on their proceedings: the other is levelled against the general law 
 which maintains the public order and tranquillity. State v. Taney, 1 Car. Law Rep. 519. 
 
 87 
 
112 APPEARANCE AND PLEA. 
 
 The former indictment, however, must appear to have been a good 
 and valid indictment for the offence, and which might be supported by 
 the same evidence as would support the present one.(a)[2] 
 
 (a) 2 Hawk. c. 35, s. 8 ; B. v. Vandercombe, a. ; Wigg's case, 4 Co. 46 b. 
 2 Leach, 708; and see Vaux's case, 3 Co. 45 
 
 con- 
 
 And where General Houston had been punished by the House of Representatives for a ^ 
 tempt and breach of privilege, it was held that the action of the House was no bar to an 
 indictment for an assault and battery growing out of the same transaction. Opinions of 
 Atty., Genl. 2, 958. * 
 
 [2] A legal acquittal in any court, of competent jurisdiction, if the indictment be good, 
 will be sufficient to preclude any subsequent proceedings before every other conrt. Com 
 v. -Cunningham, 13 Mass. Rep. 245'; Com. v. Goddard, 13 Mass. 457; Wortham v. Com 5 
 Rand. 669; Bailey's cases, 1 Virg. Cas. 258; 1 Virg. Cas. 188, 248. The court, however, 
 must have been competent and the proceedings regular. Thus a conviction of a breach of 
 the peace before a magistrate, on the confession or information of the offender himself, is no 
 bar to an indictment by the grand jury for the same offence. Com. v. Alderman, 4 Mass 
 Rep. 477. 
 
 The true test to ascertain whether a plea of auterfois be a good bar, is whether the evi- 
 dence necessary to support the second indictment would have been sufficient to procure a, 
 legal conviction upon the first. People v. Barrett, 1 Johnson, 66; Com. v. Cunningham, 13 
 Mass. 245 ; Site v. State, 9 Yerger, 357 ; Com. v Ealstat, 2 Boston Law R. 177 ; Archbold's 
 C, P. by Jervis, 82 ; Com. v. Cwtis, Thacher's C. C. 202 ; Com. v. Goodenough, Thacher's 
 C. C. 132; Gerard v. People, 3 Scammon, 363; Stater. Bay, Rice, 1; State y. Bisler, 1 
 Richardson, 219. 
 
 The rule undoubtedly is, that if the prisoner eould have been legally convicted on the first 
 indictment, upon any evidence that might have been adduced, his acquittal on that indict- 
 ment may be successfully pleaded to a second indictment; and it is immaterial whether the 
 proper evidence were adduced at the trial of the first fndictment or'not. B. v. Sheen, 2 0. 
 & P. 634; B. v. Clarke, 1 Brod. & B. 473 ; B. v. Embden, 9 East, 437. 
 
 If the charge be in truth the same, though the indictments differ in immaterial circum- 
 stances, the defendant may plead his previous acquittal, with proper averments, for it would 
 be absurd to suppose that by varying the day, place, or any other allegation, the precise ac- 
 curacy of which is not material, the prosecutor could change the right of the defendant, and 
 subject him to a second trial. Site v. State, 9 Yerger, 357 ; Keeler, 58; 1 Leach, 448 ; B. 
 v. Embden, 9 East, 437. But if the crimes charged in the two cases are so distinct that evi- 
 dence of the one will not support the other, it is inconsistent with reason and law, to say 
 that they are so far the same that an acquittal of the one will be a bar to the prosecution 
 of the other. Hite v. State, 9 Yerger, 357. 
 
 In the case of Com. v. Jackson, 2 Virg. Cas. 501, where a person charged with an assault 
 and battery was recognized to appear at the then next Superior Court, to answer an indict- 
 ment to be then and there preferred against him for the said offence, but in the meantime, 
 fraudulently procured himself to be indicted for the same offence in the county court, and 
 there confessed his guilt, and a small amercement was thereupon assessed against him, such 
 fraudulent prosecution and conviction was held to present no bar to the indictment preferred 
 against him in tho Superior Court. 
 
 If after a prisoner has pleaded to an indictment, and after the jury has been sworn and 
 evidence offered, the public prosecutor, without the consent of the prisoner, withdraw a juror 
 merely because he is unprepared with his evidence, the prisoner cannot afterwards be tried 
 on the same indictment, and if he be tried and convicted, judgment will be arrested. People 
 v. Barret and Ward, 2 Caines' Rep. 304. 
 
 Where the defendant, at a previous term, had pleaded to another indictment for the same 
 offence, it was held that the fact of the former indictment being still pending, was no bar to 
 
AUTERFOIS' ACQUIT. 112—1 
 
 And the acquittal must appear to have been before a court which 
 had j urisdiction of the offence. Therefore, where a man was tried at 
 
 a trial on the second. Com. v. Dunham, per Thacher, J., 1 Boston Law Reporter, 145 
 Thacher's C. C. 513. And an acquittal of nuisance, nine years back, is not a conclusive bar; 
 to an indictment for a nuisance at the present time, though the offences on the record are 
 identically the same, each day's continuation of the nuisance being a repetition of the of- 
 fence. People v. Townsend,$ Hill's Rep. 419. 
 
 Where judgment has been arrested for any defect in the indictment, a new one may be 
 preferred, correcting the error, and the former cannot be pleaded in bar, as whore there has 
 been a final judgment of acquittal or conviction. People v. Casborus, 13 Johns. Rep. 351; 
 Com. v. Durham, 1 Boston Law Rep. 145. 
 
 A defendant who has been acquitted upon one of several counts in an indictment, is en- 
 tirely discharged therefrom, nor can he a second time be put upon his trial upon that count 
 Campbell v. State, 9 Terger, 333. Even an erroneous acquittal is conclusive until the judg- 
 ment is reversed, so that if a judge direct a jury to acquit the prisoner on any ground, how- 
 ever fallacious, he is entitled to the benefit of the verdict. State v. NbrveU, 2 Terger, 24. 
 
 In the case of Com. v. Mortimer, (2 Virg. Cas. 325,) where the prisoner was on his trial 
 for burning the barn of Josiah Thompson, the prosecutor was asked his name, who replied 
 Josias Thompson, on which the prisoner was acquitted, without leaving their box; on being 
 indicted for burning the barn of Josias T , he cannot plead auteifois acquit. 
 
 A trial and acquittal, on an indictment for stealing a negro man, is no bar to a subsequent 
 prosecution for stealing a negro man slave. State v. McGraw, 1 Walker, 208. An acquit- 
 tal on an indictment, charging the defendant with setting fire to the premises of A. & B. is 
 no bar to an indictment charging him with setting fire to the premises of A. & C. Com. v. 
 Wade, 17 Pick. 395. 
 
 Where the defendant had been indicted for stealing the cow of J. G-., and acquitted, and 
 was again indicted for stealing the same cow, at the same time and place, , and of the same 
 owner, but by the name of J. G-. A, which was the proper name, it was held that the ac- 
 quittal was no bar to the second indictment. State v. Bisher, 1 Richardson, 2 14 
 
 In Bite v. State, (9 Terger, 357,) the first indictment charged the prisoner with having 
 stolen, taken, and carried away one bank note, of the Planter's Bank of Tennessee, payable 
 on demand at the Merchant's and Trader's Bank of New Orleans. Upon this he was ac- 
 quitted. The second indictment charged him with having stolen, taken and carried away 
 one bank note of the Planter's Bank of TeDnesse, payable on demand at the Mechanic's and 
 Trader's Bank of New Orleans. The former acquittal was pleaded in bar, but it was held 
 to be no bar to the prosecution of the second indictment. A prisoner having been acquitted 
 of the forgery of an order, and also of falsely uttering, as true, a forged order, cannot plead 
 that acquittal to a subsequent indictment, charging him with having falsely and fraudulently 
 obtained sundry goods by means of a f.ilse privy token and counterfeit letter, which privy 
 token was the same order, of the forgery and uttering of which he had been acquitted. Com. 
 v. Quaun, 2 Tirg. Cas. 89. 
 
 In order, however, to entitle the defendant to this plea, it is necessary that the crime 
 charged be precisely the same, and that the former indictment, as well as the acquittal, was 
 sufficient. 2 Leach, 717; 1 East P. C. 522; 9 East, 437. As to the first of these requi- 
 sites, the identity of the offence, if the crimes charged in the former and present prosecution 
 are so distinct, that evidence of the one will not support the other, it is inconsistent with 
 reason, as it is repugnant to the rules of law to say, that the offences are so far the same, 
 that an acquittal of the one will be a bar to the prosecution for the other. 2 Leach, 717 ; 
 12 Pick. 505. But, on the other hand, it is clear, that it if the charge be in truth the same, 
 though the indictments differ in immaterial circumstances, the defendant may plead his pre- 
 vious acquittal, with proper averments; for it would be absurd to suppose, that by varying 
 the day, parish, or any other allegation, the precise accuracy of which is not material, the 
 prosecutor could change the rights of the defendant, and subject him to a second trial 
 
1 - 12— '2 APPEARANCE AND PIE A. 
 
 the sessions in Southward, and it appearing that the offence was com- 
 mitted a few yards within the city of London, the defendant was ac 
 
 f °oV 8 ' p 1 ^ aCb ' r 48 ; 9 EaSt ' iZ1 ' 2 Ha,e ' 224 > 225 ' 226 > U1 i 2 Inst - 318 i Hawk. b. 
 tL n'r r ' ,7\ Indictment . XI - i [1 2 Kok. 604 ; 13 Mass. R. 215.] Thus, as to the 
 ""l'? 1 * mdicted for a murder > a3 committed on a certain day, and acquitted, 
 and afterwards be charged with killing the same person, on a different day, he may plead 
 tie tormer acquittal in bar, notwithstanding this difference, for the day is not material; and 
 tins is a fact winch could not be twice committed. 2 Hale, 119, 244 ; Hawk. b. 2, c. 35, s. 
 J. And the same rule applies to accusations of other felonies ; for, though it is possible for 
 several acts of the same kind to be committed at different times by the same person, it lies 
 m-averment, and the party indicted may show that the same charge is intended. 2 Hale 
 li9, 244; Burn, J. Indictment, 21. 
 
 Where a defendant pleaded an acquittal on an indictment for murdering a child, by 
 administering a certain deadly poison, to wit, oil of vitriol, and by forcing the child to take, 
 drink, and swallow down, a large quantity of the said oil of vitriol, knowing it to be a deadly 
 poison, whereby the child became sick and distempered in his body, and by that sickness 
 languished and died, it was held a good bar to an 'indictment (first count) for murdering the ' 
 same child, by administering a large quantity of oil of vitriol, and forcing the child to take into 
 his mouth and throat a large quantity of the said oil of vitriol, knowing that the.said oil of 
 vitriol would occasion the death of the child, whereby he became disordered in his mouth and 
 throat, and by the disorder, choking, suffocating, and strangling occasioned thereby, languished 
 and died ; (2d count) for murdering the child, by administering a certain acid, called oil of 
 vitriol, and forcing the child to take a large quantity of the said acid into his -mouth and 
 throat, by means whereof he became disordered in his mouth and throat, and incapable of 
 swallowing his food, and died of the inflammation, injury, and disorder occasioned thereby. 
 1 Brod. & Bing. 473. If a party be indicted for the murder or assault of a certain-person 
 unknown, and afterwards eharged in an indictment for the same offence, he may rely upon 
 the previous acquittal. Dyer, 285, a; Keilw. 25; Hawk. b. 2, eb. 35, sec. 3. So, if the 
 person killed be differently, though sufficiently described in the two distinct indictments, the 
 defendant may show that the same individual is intended. 2 Hale, 244. But then it is 
 necessary to aver, that the party slain was known by both names, so as to maintain the 
 sufficiency of the first proceedings, for if they were merely nugatory, they will form no 
 ground of defence to any subsequent prosecution. 2 Hale, 244, 245 ; Hawk. b. 2, c. 35, 
 sec. 3. And hence, we may observe, that the great general rule upon this part of the subject 
 is, that the previous indictment must have been one upon which the defendant could legally 
 have been convicted, upon which his life or liberty was not merely in imaginary, but in 
 actual danger, and consequently, in which there was no material error. 4 Co. Rep. 39, 40 ; 
 1 Leach, 448; 2 Hale, 248; Hawk. b. 2, ch. 35, see. 8; 2 Russell, 40, 41. So that all 
 variations not inconsistent with the validity of both proceedings, such as differences in the 
 day, the ville, or the quantity, may be shown to be merely technical. But if the variances 
 are in those things which are material, auterfois acquit must not be pleaded; for either the 
 first indictment was ineffectual, and therefore, the acquittal is of no avail, or the second will 
 prove not applicable to the evidence, and therefore, the objection is needless. Thus, if a 
 person be indicted for a crime laid to be done at a certain parish in a particular county, and 
 found not guilty, and afterwards accused of the same fact at another place within the same 
 county, he may plead his former acquittal, for the ville is altogether immaterial, and either 
 indictment might be supported, (2 Hale, 245 ;) but if the difference be in the county, he can- 
 not do this, because odo indictment must be bad, since the offence will be proved to be be- 
 yond the jurisdiction of the grand jury. 2 Hale, 245 ; Com. Dig. Indictment, L. And 
 where the reason tails, the rule fails with it; for an indictment removed from the proper 
 countj', though tried in another, is thus pleadable, because the same offence may still be 
 intended. 2 Hale, 245. Upon the same principle, where the defendant was acquitted 
 merely on some error of the indictment, or variances in the recitals, he may be indicted 
 
ATJTERFOIS ACQUIT. 112—3 
 
 quitted ; being afterwards indicted in London for the same offence, he 
 pleaded auterfois acquit: but the judges held the plea to be bad, as the 
 sessions had no jurisdiction to try the offence.(a) 
 
 (a) It. v. Welsh, By. & M. 115. 
 
 again upon the same charge, for the first proceedings were merely nugatory. 2 Leach, 708 ; 
 2 East P. 0. 519. Thus, if an indictment for larceny lay the property in the goods in the 
 wrong person, the party may be acquitted, and afterwards tried on another, stating it to be 
 the property of the legal owner. 1 Leach, 464. But where, in the first indictment, the 
 prosecutor mis-stated a mere superfluous averment, he cannot afterwards rectify that error 
 in a second, to place the life and' liberty of the defendant again in jeopardy. 9 East, 437. 
 And, in such cases, the point iu discussion always is, whether, in fact, the defendant could 
 have taken a fatal exception to the former indictment; for, if he could, no acquittal will 
 avail him, but if he could not, it is always competent for him to show the offences to be 
 really the same, though they are variously stated in the proceeding^. 
 
 It is not, in all cases, necessary that the two charges should be precisely the same in point 
 of degree, for it is sufficient if an acquittal of the one will show that the defendant could not 
 have been guilty of the other. Thus, a general acquittal of murder is a discharge upon an 
 indictment of manslaughter upon the same person, because the latter charge was included 
 in the former, and, if it had so appeared on the trial, the defendant might have been con- 
 victed of the inferior offence ; and, on the other hand, an acquittal of manslaughter will pre- 
 clude a future prosecution for murder, for if he were innocent of the modified crime, he 
 could not be guilty of the same fact, with the addition of malice and design. 4 Co. Rep. 45, 
 46; 2 Hale, 246; Fost. 329; 12 Pick. 504. So, an acquittal of petit treason will bar an 
 indictment for the murder of the same person, and an acquittal of murder an indictment for 
 petit treason. Fost. 325, 328, 329 ; Hawk. b. 2, ch. 35, sec 5. But if the former charge 
 were such an one as the defendant could not have been convicted of the latter upon it. the 
 acquittal cannot be pleaded. Thus, if the first charge were for a felony or stealing, and the 
 second for a mere misdemeanor, the previous acquittal will be no bar, for a felony or larceny 
 cannot be modified on the trial into a trespass or misdemeanor. Hawk. b. 2, c. 35, sec. 5; 
 Bro. App. 121; 1 Leach, 12; 12 East, 415. And it often happens, that after an acquittal 
 of the felony, the defendant is indicted and tried for the misdemeanor upon the same evi- 
 dence, and it would be no objection, though the judge might still think that there was evi- 
 dence of the felony to have gone to the jury. 12 East, 415. Thus, also, if the defendant 
 be indicted for a burglarious entry and a stealing, and acquitted, he may still be tried for a 
 burglarious entry with intent to steal; for although the burglary be the same, it is evident 
 the prisoner could not have been found guilty on the first, upon proof of a mere intention, 
 and therefore may well be indicted lor that offence in the second. 2 Leach, 716 ; Hawk. b. 
 2, ch. 35, see. 5; 2 Leach, 816; 12 Pick. 503. It is, indeed, generally laid down, that an 
 acquittal of burglary will not prejudice an indictment for larceny, or \ ice versa, (2 Hale, 245, 
 246 ; Hawk. b. 2, ch. 35, sec. 5 ;) but this must be understood of those cases, in which, like 
 that we have just stated, the former charge did not necessarily include the latter. On the 
 same ground, -if a robbery be committed in one county, and the goods be carried into 
 another, so as to make it larceny there, an acquittal of the larceny in the last county will not 
 prejudice an indictment for robbery in the first, because the verdict of not guilty can proceed 
 an the ground only, that the goods were not brought within the jurisdiction of the grand 
 jury, and will not affect the original taking, into which they had no authority to inquire. 
 2 Hale, 245, ace; but see Hawk. b. 2, ch. 35, sec. 4, cont. And thus also, it is clear, that 
 if a man be indicted as accessory after the fact, and acquitted, he may afterwards be tried as 
 a principal, for proof of one will not at all support the other. 1 Hale, 625, 62G ; 2 Hale, 
 625, 626; 2 Hale, 244; Eel. 25, 26; Hawk. b. ch. 35, sec. 11 ; Staundf. 105. But it was 
 formerly holden, that the offences of principal and accessory before the fact, were in sub- 
 stance the same ; and therefore, that after an acquittal as to the former, no one could be 
 
112 — 4 APPEARANCE AND PLEA. 
 
 As to the form of the plea: by stat.li & 15 Yict. e. 100, s. 28, it is 
 enacted that " in any plea of auterfois convict or auterfois acquit, it shall 
 be sufficient for any defendant to state that he has been lawfully con- 
 victed or acquitted (as the case may be) of the offence charged in the 
 indictment." 
 
 The following therefore may be the form of a 
 Plea of Auterfois Acquit 
 
 And the said A. B., in his own proper person, cometh into court here, 
 and having heard the said indictment read, saith that our Lady the 
 Queen ought not further to prosecute the said indictment against him ; 
 because he saith that heretofore, to wit, at a sessions of oyer and term- 
 iner and general jail delivery [or at the general quarter sessions of the 
 
 peace] holden at , in and for the county of , he the said A. B. 
 
 was lawfully acquitted of the said offence charged in the said indict- 
 ment : And this he the said A. B. is ready to verify ; wherefore he 
 prays judgment, and that by the court here he may be dismissed and 
 discharged from the said premises in the present indictment specified. 
 
 Replication thereto. 
 
 And hereupon E. F.. [the cleric of arraigns or clerk of the peace'] who 
 prosecutes for our Lady the Queen in this behalf, saith that by reason 
 of any thing in the said plea of the said A. B. above pleaded in bar 
 
 alleged, our said Lady the ,Queen ought not to be precluded 
 [*113] from further prosecuting the said *indietment against the said 
 
 A. B. ; because he saith that the said A. B. was not lawfully 
 
 indicted as to the latter, though it was admitted that an acquittal as procurer would not 
 hinder him from being indicted as a principal. 1 Hale, 625 ; 2 Hale, 244 ; Hawk. b. 2, ch. 35, 
 s. 1 1. Bat as it seems now to be the better opinion, that the charges, however nearly allied 
 in moral guilt, are specifically different in their legal aspect, and that evidence of procuring 
 will not Suffice to show an actual Commission, it follows that a previous verdict in his favor, 
 when charged with being principal, cannot be pleaded on a subsequent prosecution, for in- 
 citing others to the felony. Post. 361, 362; 2 St. Tr. 198; Hawk. b. 2, ch. 35, sec. 11; 
 2 Hale, 244. And if two offences are supposed to have been committed at the same time, 
 as if a horse and a saddle are stolen together, an acquittal of one will be no bar to an in- 
 dictment for the other, lor the crimes are essentially different. 2 Hale, 246. So, if a road 
 be out of repair, the parties bound to amend it may be indicted, though they have, at a for- 
 mer period, been acquitted on a similar proceeding. 6 East, 316. 
 
 As to the sufficiency of the discharge, which may be thus pleaded, it must be a legal 
 acquittal by judgment upon trial, by a verdict of a petit jury. 2 Hale, 243, 246 ; Hawk. b. 
 2, ch. 35, sec. 6; Burn, J. Indictment, XL And, therefore, if a man be committed for a 
 crime, an;! no bill be preferred against him, or, if it be thrown out by the grand jury, so 
 that lie is discharged by proclamation, lie is still liable to be indicted. So, if the facts be 
 found specially by the coroner's inquest or grand jury, and he be thereupon discharged, he 
 cannot plead it in bar to any subsequent prosecution ; but if the special verdict be found by 
 the petit jury, and judgment be given by the court "that he go thereof without day," this 
 will amount to a sufficient acquittal. 2 Hale, 246 ; Burn, J. Indictment, XI. 
 
AUTERFOIS ACQUIT. , 113 
 
 acquitted of the said offence charged in- the said indictment, .in manner 
 and form as the said A. B. hath in his said plea above alleged; and 
 this he the said E. F. prays may be inquired of by the cpuntry, &c. 
 And the said A. B. doth the like. Therefore let a jury come, &c. 
 
 The usual replication formerly, when the record of the former ac- 
 quittal was set out in the plea, was nul tiel record. But as in this mod- 
 ern form of plea the record is not set out, and there is of course no 
 prout patet per recordum, and as there is no such thing as a trial by the 
 record in criminal cases, but the trial in all cases must be by the coun- 
 try, — it seems to me that a mere general traverse of the plea is the 
 proper replication in this case.[l] 
 
 In proof of the plea, the record of the former acquittal must be made 
 up ; and if the former trial were at the quarter sessions, the court of 
 Queen's Bench, will, if necessary, grant a madamus requiring the jus- 
 tices to make up the record. (a) And formerly the record or an exam- 
 ined copy it must have been given in evidence by the defendant. But 
 now, by stat. 14 & 15 Vict. c. 99, s. 13, (after reciting that it is expedi- 
 ent, as far as possible, to reduce the expense attendant upon the proof 
 of criminal proceedings,) it is enacted, that whenever in any proceed- 
 ing, whatever it may be, it shall be necessary to prove the trial and 
 conviction or acquittal of any person charged with any indictable of- 
 fence, it shall not be necessary to produce the record of the conviction 
 or acquittal of such person, or a copy thereof; but it shall be sufficient 
 that it be certified or purport to be certified under the hand of the clerk 
 
 (a) R. v. JJ. of Middlesex; 5 B. & Ad. 1113. 
 
 [1] The pica of auterfois acquit is of a mixed nature, and consists partly of matter of record, 
 and partly of matter of fact. The matter of record is the former indictment and acquital; 
 the matter of fact is the averment of the identity of the offence and of the person as having 
 been formerly indicted. To support the first matter, it is necessary to show that the defend- 
 ant was lound not guilty on an indictment free from error in a court having jurisdiction. 4 
 Bit. Com. 335. On a plea of auterfois acquit, a .jury are sworn instantly to try the cause. 
 2 Leach, 541. The proof of the issue lies upon the defendant. Arch. 90. To prove it, he 
 has first merely to prove the record, and secondly to prove the averment of identity con- 
 tained in his plea. 2 Russ. 721, n. Where the second indictment is preferred at the same 
 term, the original indictment and minutes of the verdict, are receivable, in evidence in sup- 
 port of the plea of auterfois acquit without a record being drawn up. Hex v. Parry 7 C. & 
 P. 836. But where the previous acquittal was at a previous term in the same jurisdiction 
 or in a different jurisdiction, it can only be proved by the record. E. v. Bowman, 7 C. & P. 
 101, 337. 
 
 Wherever the offences charged in the two indictments are capable of being legally identi- 
 fied as the same offence by averments, it is a question of fact for a jury to determine whether 
 the averments be supported, and the offences be the same. In such cases the replication 
 ought to conclude to the country. Bat when the plea of auterfois acquit upon its face shows 
 that the offences are legally distinct and incapable of identification by averments, as they 
 must be in all material points, the replication of nul tiel record may conclude with a verifica- 
 tion. In the latter case, the court, without the intervention of a jury, may decide the issue. 
 Mite v. State, 9 Yerger, 357. 
 
113 — 1 APPEARANCE AND PLEA. 
 
 of the court or other officer, having the custody\)f the records of the 
 court where such conviction or acquittal took place, or by the deputy 
 of such clerk or other officer, that the paper produced is a copy of the 
 record of the indictment, trial, conviction, and judgment or acquittal, 
 as the case may be, omitting the formal parts thereof. 
 
 If there be a variance between the former record and the present in- 
 dictment, in the description of the offence, it may be made good by 
 evidence, showing in substance that the proofs necessary to support the 
 present indictment, would have been sufficient to convict- him upon the 
 former one.[2] 
 
 If the verdict be in favor of the defendant, the judgment is that he 
 be dismissed and discharged from the said premises -in the present in- 
 dictment specified, and that he go thereof without day. But if the 
 verdict be against the defendant, then in felonies the judgment is of 
 respondeat ouster ; but in misdemeanors the judgment is final. (a)[3] 
 
 (a) E. v. Taylor, 3 B. k 0. 502. 
 
 [2] Where the only issue is the identity of the offences, a technical difference between the 
 description of the property in the first indictment and the second will be disregarded. The 
 People v. M'Gowan, 17 Wendell, 386. 
 
 In England, in the case of R. v. Perry, 7 Car. &, P. 836 ; where four persons were tried 
 for rape, upon an indictment containing counts charging each as principal and the others as 
 aiders and abettors, they were acquitted ; and it being proposed, on the following day, to 
 try three of them for another rape upon the same person, the second .indictment being 
 exactly the same as the first with the omission of the fourth prisoner, they pleaded auterfois 
 acquit to the second indictment, averring the identity of the offences, and to this plea there 
 was a replication that the offences were different. The prisoners' counsel put in the com- 
 mitment and the former indictment, and ako the minutes of the former acquittal written on 
 the indictment. On this evidence the jury found that the offences were the same ; and it 
 being referred for the opinion of the judges whether there was any evidence to justify and 
 support the verdict, and if not, whether such verdict was final, and operated as a bar to any 
 further proceedings by the crown upon the second indictment, the court held, that the verdict 
 of the jury was final, and the prisoners were discharged. 
 
 To an indictment for larceny in a dwelling-house, the defendant pleaded a former convic- 
 tion of pilfering, on a complaint before a police court, averring that the articles and the 
 stealing mentioned in the indictment were the same mentioned in said complaint, and that 
 the police court had jurisdiction of the offence. The replication averred that the stealing 
 charged in the said complaint was a larceny in the dwelling-house, which was a high and 
 aggravated crime, and that the police court had not jurisdiction thereof. The rejoinder 
 traversed the several averments in the replication. It was held, on special demurrer, that 
 the rejoinder was good, being neither a departure, nor double, and that though the plea was 
 defective in form, for not directly traversing the charge of larceny in a dwelling-house, yet 
 that the delect was cured by the pleading over. The proper plea would have been former 
 conviction of the larceny, and not guilty of the residue of the charge. Com. v. Curtis, 11 
 Pick. Kep. 134; Whart. Cr. Law, 146. 
 
 Where the former conviction was effected by fraud, the plea of auterfois convict, in such 
 case, beiug replied to specially, the replication which sets forth such fraudulent prosecution 
 and conviction being well drawn, is a sufficient answer to the defendant's plea, and should 
 be adjudged good on demurrer. Com. v. Jackson, 2 Virg. Cas. 501 ; State v. Brown, 16 Conn. 
 Rep. 54. 
 
 [3] The judgment against the defendant, in felonies, is respondeat ouster; or rather, as the 
 
AUTERFOIS CONVICT OR ATTAINT. 114 
 
 *(c) Auterfois convict or attaint. [*114] 
 
 If tlie defendant were formerly attaint or convicted of the same of- 
 fence, lie may plead it in bar to the present indictment.(o) The obser- 
 vations already made respecting the plea of anterfois' acquit, are equally 
 applicable to this plea. The form of the plea is also the same, merely 
 substituting the word "convicted" for "acquitted." ..Formerly auterfois 
 attaint of another felony, was a bar to any subsequent indictment for 
 felony whilst the former attainder continued in force. But now, by 
 stat. 7 & 8 Gr. 4, c. 28, s. 4, " no plea setting forth any attainder, shall 
 be pleaded in bar of any indictment, unless the attainder be for the 
 same offence as that charged in the indictment." [1] 
 
 (a) 2 Hale, 253 ; 2 Hawk. c. 36 ; and see Car. & P. 337. 
 R v. Scott, 1 Leach, 401 ; B. v. Bowman, 6 
 
 defendant generally pleads over to the felony at the same time with the issue in the plea of 
 auterfois acquit, the jury are charged again to inquire of the second issue, and the trial pro- 
 ceeds as if no plea in bar had been pleaded. R. v. Vandercomb, 2 Leach, 108 ; R. v. Cogan, 
 
 1 Leach, 448 ; Rex v. Shean, 2 C. & P. 635. In England, in cases of misdemeanor, the 
 judgment is final, R. v. Goddard, 2 Ld. Raymond, 922; 2 Hale, 256. In this country, 
 however, the judgment in each case appears to be respondeat ouster. Com. v. Goddard, 13 
 Mass. 455 ; Barge v. Com., 3 Penn. 262 ; Com. v. Foster, 8 .Watts & Serg. 77. When the 
 plea is allowed, the judgmeut is that the defendant go without day. 2 Hale, 391 ; 1 Deacon, 
 90; Archbold, by Jervis, 86. Whart. Or. Law, 146. 
 
 [1] The plea of auterfois convict depends like that we have juat considered, on the principle 
 that no man shall be more than once in peril for the same offence. In order to plead this 
 plea with effect, the crime must be the same for which the defendant was before convicted, 
 and the conviction must have been lawful on a sufficient indictment, (9 East, 441 ;) for a 
 conviction of one felony, is no bar to a trial of another. 
 
 This plea must always be pleaded after conviction, and it cannot be taken advantage of 
 as a plea in abatement, that there is another indictment for the same cause depending. 
 
 2 Ld. Rayra. 920; Dougl. 240; Cro. Car. 147 ; 1 Conn. R. 418. Its form, requisites, and 
 consequences, are very nearly the same as in ■■<- plea of former acquittal. Thus, like that 
 plea, it will be of no avail when the first indictment was invalid, and when, on that account, 
 no judgment eould be given, because the life of the defendant was never before in jeopardy. 
 4 Co. Rep. 45 ; Hawk. b. 2, c. 36, s. 15 ; 12 Pick. 504, 505. So also, like that plea, it must 
 set forth the former record, and plead over to the felony. 2 Hale, 255 ; 2 Hale, 392 ; Burn, 
 J. Indictment, XI. See form. Cro. C. C. 388. As in that the identity must be shown by 
 averments, both of the offence and the person, so the same forms are here requisite. 2 Hale, 
 255 ; Burn, J. Indictment, XI. The replication is also in the same way, taking issue upon 
 the material averments; (2 Hale, 255, 391, 2. See form of replication and judgment, 2 
 Hale, 392.) and the judgment, if in favor of the prisoner, is, " that he go thereof without 
 day." 
 
 A defendant cannot be convicted and punished for two distinct felonies growing out of the 
 same identical act, and when one is a necessary ingredient of the other, and the state has 
 selected and prosecuted one to conviction. State v. Cooper, 1 Green. 361 ; State v. Shepard, 
 1 Conn. 54. 
 
 See, as to misdemeanors, State v. Damon, 2 Tyler, 387. 
 
 Crimes are indivisible, and a former conviction or acquittal on a trial for a part of the same 
 offence, is a good bar for the residue. State v. BenMm, 1 Conn. 414. 
 
 But a conviction upon an indictment for an assault with intent to murder cannot be plead- 
 ed in a bar to an indictment for murder. CommonwealthY. Roby, 12 Pick. 496. See Com- 
 monwealths. Wade, 17 Pick. 400; Same v. Curtis, 11 Pick. 134. 
 
 38 
 
114—1 APPEARANCE AND PLEA. 
 
 (d) Pardon. 
 
 If a pardon have been granted to the defendant for the offence of 
 which he is indicted, he may plead it in bar of the indictment. Form- 
 erly the pardon must have been under the great seal. But now, by 
 stat. 7 & 8 Gr. 4, c. 28, s. 13, where the King, by warrant under his sign 
 manual countersigned by one of his principal secretaries of state, shall 
 grant to any felon a free or conditional pardon, the discharge of such 
 offender out of custody in the case of a free pardon, and the perform- 
 ance of the condition in the case of a conditional pardon, shall have 
 the effect of a pardon under the great seal, as to the felony for which 
 such pardon shall be granted ; but no pardon shall affect or mitigate 
 the punishment of the offender for any felony committed by him after 
 the granting of such pardon. The pardon however is only a bar to an 
 indictment for the offence specified in it, and not for any other, com- 
 mitted before or after.(a)[2] 
 
 (a) R. v. Harrod, 2 Car. & K. 294. 
 
 In Tennesse, a conviction, judgment and execution for a felony not capital, is a bar to all 
 other felonies not capital committed before such conviction, &c. Crenshaw v. State, Martin 
 & Yerger, 122. See Hawkins v. State, 1 Porter, 4?5 ; State v. WOarty, 1 Bay. 334. 
 
 Where a, party indicted for an affray, pleads that he has been convicted for the same 
 offence upon an indictment for an assault and battery, parol proof is admissible to show, 
 what the records cannot show with sufficient precision, that the two offences were or were 
 not identical. Duncan v. Commonwealth, 6 Dana, 295. 
 
 Where auterfois v. convict is pleaded, the only proper replication traverses the identity of 
 the offence. Id. 
 
 A judgment rendered by J. P. under the act of Kentucky, 1802, upon a warrant for a 
 Breach oft the peace, committed by an assault and battery, is a bar to an indictment for the 
 same assault and battery. Commonwealth v. Miller, 5 Dana, 320. 
 
 The legislature may declare that when a man has been punished by one mode of proceed- 
 ing, he shall not be again punished for the same offence ; and though the mode referred to 
 may be under an act not consistent with the constitution, the protection will nevertheless 
 be effectual. Id. 
 
 The New York statute against duelling and sending challenges to right, contains a pro- 
 vision that persons indicted here for those offences may plead a former conviction or acquittal 
 for the same, in another state or country; and that if such plea be admitted or established, 
 it shall be a bar to any further or other proceedings against him for the same offence. 2 N. 
 Y. Kev. Stat. 68?, sec. 1. 
 
 The forms of pleading, replication and judgment, are so similar in case of the plea of auter- 
 fois attaint, to those which belong to the pleas of a former conviction and acquittal that it 
 will not be necessary here to discuss them. 2 Hale, 255, 392. It will therefore be only 
 proper here to observe that besides these pleas of a former trial of the individual himself 
 when his guilt, depends upon the proof of that of another, he may plead and give in evidence 
 that party's acquittal. Thus, if a jailer suffers a prisoner to escape and he is afterwards re- 
 taken tried and acquitted, he may plead the acquittal of the party committed to his charge, 
 because, if that party be innocent, he cannot be guilty. 3 Hale, 254. And the party 
 escaping might give the first discharge in evidence to bar an indictment for the subsequent 
 folony. 2 Hale, 254. 
 
 [2] By the Constitution of the United States, the President has power to grant reprieves 
 and pardons for offences against the United States, except in cases of impeachment. Const 
 
PLEAS TO INDICTMENTS FOR NOT REPAIRING, Ac. 114 — 2 
 
 (e) Pleas to indictments for not repairing highways, &c. 
 
 Pleas to indictments for not repairing highways or bridges, showing 
 that the inhabitants of some other district, or that some persons ratione 
 
 U. S., art. 3, sea 2. In general a similar power is vested in the governors of the States by 
 their respective constitutions. In some of the States it is confined to cases after conviction. 
 
 In U. S. v. Wilson, 7 Peter's Rep. 150, the Supreme Court of the United States said: 
 "The power of pardon in criminal cases has been exercised from time immemorial, by the 
 executive of that nation whose language is our language, and to whose judicial institutions 
 ours bear a close resemblance. "We adopt their principles respecting the operation and -effect 
 of a pardon, and look into their books for the rules prescribing the manner in which it is to 
 be used by the person who. would avail himself of it. A pardon is an act of grace, proceed- 
 ing from the power entrusted with the execution of the laws, which exempts the individual 
 on whom it is bestowed from the punishment the law inflicts for a crime he has committed. 
 
 '• It is a constituent part of the judicial syctem, that the judge sees only with judicial 
 eyes, and knows nothing respecting any particular case of which he is not informed judicially. 
 A private deed, not communicated to him, whatever may be its character, whether a pardon 
 or release, is totally unknown and cannot be acted upon. The looseness which would be in- 
 troduced into judicial proceedings would prove fatal to the great principles of justice, if the 
 judge might notice and act upon facts not brought regularly into the cause. Such a pro- 
 ceeding, in ordinary cases, would subvert tbe best established principles, and would overturn 
 those rules which have been settled by the wisdom of ages. There is nothing in pardon 
 ■which ought to distinguish it from other facts ; no legal principle known to the court will 
 sustain such a distinction. A pardon is a deed to the validity of which delivery is essential 
 and delivery is not complete without acceptance. It may then be rejected by the person to 
 whom it is tendered ; and if it be rejected, we have discovered no power in a court to force 
 it on him. It may be supposed that no being condemned to death would reject a pardon ; 
 but the rule must be the same in capital cases and in misdemeanors. A pardon may be condi- 
 tional, and the condition may be more objectionable than the punishment inflicted by the 
 judgment. 
 
 The governor may annex to a pardon any condition, whether precedent or subsequent, not 
 forbidden by law, and it lies upon the grantee to perform the condition. If he does not, in 
 case of a condition precedent, the pardon does not take effect ; in case of a condition subse- 
 quent, the pardon becomes null ; and if the condition is not performed, the original sentence 
 remains in full vigor, and may be carried into effect. 8 "Watts & Sergt. Rep. 197 ; 2 Bailey 
 S. C. Rep. 516. 
 
 When the prisoner has either personally obtained a pardon for himself, or is included in a 
 general act of grace, he must plead that privilege specially, as otherwise the court will not 
 be bound to allow it, and indeed has no discretionary power to notice it. Cro. Car. 32, 449. 
 But there seems to be an exception to this rule where a general act pardons all persons, 
 without any kind of proviso of the particular offence for which the defendant is indicted ; for 
 then the court are required to attend to it ex officio, as they are to every other public sta- 
 tute. V. S. v. Wilson, 1 Peters, 150; 1 Baldwin, 91. A pardon may always be pleaded 
 when the offender is evidently included within its intention ; as where all felonies and lower 
 offences committed before a certain day, are remitted. A murderer is pardoned who has 
 given the fatal stroke before the time specified, though the death which completes the crime, 
 does not happen till a subsequent period. 1 Hall, 426; Plowd. 401 ; see Com. v. Roby, 12 
 Pick. 508, 509. But if murders be expressly excepted, or the act extends only to misde- 
 meanors, he will not be entitled to.the benefit of the act, because, though at the time it was 
 passed, his crime was only a misdemeanor, it subsequently became a higher crime than 
 those included in the pardon. Fost. 64 ; Bac. Abr. tit. Pardon. 
 
 In pleading a general act of pardon, if th'e act contain exceptions of particular persons, by 
 name, or of a general description of individuals, it is in general necessary for the defendant 
 
H4 3 APPEARANCE AND PLEA. 
 
 tenures are bound to repair it, — are the only other special pleas, which 
 occur in practice in criminal cases. As we shall have to notice this 
 subject particularly, however, in the second part of the work, when we 
 come to consider indictments in particular cases and the evidence ne- 
 cessary to support them, we shall defer treating of these pleadings un- 
 til we treat of the subject altogether. 
 
 4. Demurrer. 
 
 A demurrer is a pleading, by which the legality of the last preced- 
 ing pleading is denied and put in issue, and the issue is then 
 [*115] *determined by the court. A demurrer is pleaded either to 
 the indictment, or to a special plea.[l] 
 
 (a) Demurrer to indictment. 
 
 Formerly a .demurrer to an indictment was unusual, because the de- 
 fendant might have the same advantage of objecting, by motion in ar- 
 rest of judgment, or writ of error. 
 
 Afterwards certain defects in indictments were cured by verdict by 
 stat. 7 G. 4, c. 64, s. 20, which therefore could only be taken advan- 
 tage by demurrer, (a) 
 
 (a) R. v. Fefiwick, 2 Car. & K. 915. 
 
 to show specially that he is not one of the parties named in the statute, as without its bene- 
 fit in the first case, or included in the prescribed description in the second. Cro. Eliz. 125. 
 But where the pardon is in its body, general as to all, and some are afterwards excepted in 
 a distinct proviso,, it seems that such averments are not absolutely requisite, and that if the 
 defendant be thus excepted, it must be shown by the prosecution in reply. 1 Lev. 26 ; Bac. 
 Abr. tit. Pardon. And where a particular offence only is excepted, he will be compelled to 
 negative its commission ; for the court will judicially take notice of the color of the charge 
 against him, and compare it with that excepted in the pardon. Cro. Car. 449. So, where a 
 single individual is excluded from the operation of the executive clemency, it has been held 
 not necessary to aver that the defendant is not the person referred to ; for that is a circum- 
 stance of which the judges are bound to take cognizance. Cro. Eliz. 125. 
 
 If there be any variance between the denomination of the party in the indictment and in 
 the pardon, or in his addition, he may show, by proper averments of identity, that the same 
 person is intended. 1 Dyer, 34, a.; Keilw. 58; Hawk. b. ch. 37, sec. 66; Bac. Abr. Par- 
 don, G. 2. And, therefore, if a man be indicted as " yeoman," and pardoned as " gentleman," 
 or the addition of place is different, he may show his identity by averment. Keilw. 58 ; 1 
 Rol. Rep. 368 ; Hawk. b. 2, ch. 37, sec. 66 ; Bac. Abr. Pardon, G-. 2. So also, if in an in- 
 dictment for homicide, the time of the death is stated differently, the variance may be thus 
 explained, and rendered harmless. Bro. Abr. Charter de Pardonne, 15 ; Hawk. b. 2, ch. 
 37, sec. 66 ; Bac. Abr. Pardon, G. 2. And if these explanatory averments be omitted, the 
 court will, in their discretion, defer the proceedings, in order to give time for the defendant 
 to perfect his plea, or to obtain a more effectual pardon. 3 Inst. 240 ; 1 Sid. 41 ; Sir Thos. 
 Raym. 13 ; Hawk. b. 2, ch. 37, sec. 66; Abr. Pardon, G. 2. 
 
 [1] The term "demurrer" is derived from demorare or demeurer, and signifies that the 
 party will go no further, because the indictment or proceedings is defective in substance or 
 informal in statement. 4 Elk. Com. 333. See "Waterman's Criminal Law, tit Demurrer. 
 
DEMURRER TO INDICTMENT. 115 
 
 And now, by stat. 14 & 15 Vict. c. 100, s. 25, every objection to any 
 indictment, for any formal defect apparent on the face thereof, shall 
 be taken by demurrer or motion to quash such indictment, before the 
 jury shall be sworn, and not afterwards ; and every court before which 
 any such objection shall be taken for any formal defect may, if it be 
 thought necessary, cause the indictment to be forthwith amended in 
 such particular by some officer of the court or other person, and there- 
 upon the trial shall proceed as if no such defect- had appeared. This 
 however has only reference to formal defects ; defects in substance may 
 still be taken advantage of, where not cured or amended, by motion in 
 arrest of judgment or writ of error, *as before. 
 
 A demurrer in criminal cases, has the effect of opening the whole 
 record to the court ; and therefore upon arguing it, the defendant may 
 take objections, as well to the jurisdiction of the court where the in- 
 dictment was found, as to the subject matter of the indictment itself.(a) 
 
 In misdemeanors, the judgment upon demurrer is final, and not 
 merely that the defendant shall answer over.(Z>) But in capital cases 
 the defendant is not concluded by the judgment on demurrer, but if 
 the judgment be against him, he may still plead not guilty ; and where 
 a defendant in such a case demurs, it is usual for him at the same time 
 to plead over to the felony. (c) But in felonies not capital, it seems to 
 be doubtful whether the judgment is final or merely a judgment of res- 
 pondeas ouster. In R. v. Boicen,(d) which was the case of a felony not 
 capital, upon the defendant's counsel being about to demur, Tindal, C. 
 J., cautioned him saying that he might be bound by his demurrer and 
 not allowed to plead over ; he did not actually deliver an opinion upon 
 the point, but expressed great doubt upon it, and the prisoner's counsel 
 thereupon declined to demur, and the prisoner pleaded not guilty. 
 And Hawkins merely says, generally, that in criminal cases not capi- 
 tal, if the defendant demur to the indictment, the court will not give 
 judgment against him to answer over, but final judgment.(e)[2] 
 
 (o) R. v. Fearnley, 1 T. R. 316. v. Adams et al, Id. 299. 
 (6) Per Lawrence, J., in B. v. Gibson, 8 (a!) 1 Car &K. 501. 
 East, 112. (e) 2 Hawk.c. 31, s. 7. 
 
 (c) R. v. Phelps et al, Car. & M. 180 ; R. 
 
 [2] Mr. Chitty (1 Chitty's Cr. Law, pages 441, 442,) states the English practice as fol- 
 lows : "It seems to have been formerly doubted, whether, if the defendant demur generally 
 in case of felony, and the indictment be held to be valid, final judgment shall not be imme- 
 diately given, and execution awarded against him. 2 Hale, 315, 357; 2 Inst. 178 ace. • 
 Hawk. b. 2, ch. 31, sec. 5 ; 2 Hale, 225, 257 ; 4 Bla. Com. 334, cont. ; and see Stark. 315 • 
 2 Leach, 603. But this doubt existed only in the case of a general demurrer concluding in 
 bar ; for it is clear, that if the demurrer prayed judgment of the indictment, and that it 
 might be quashed, the prisoner could never be concluded from pleading over to the felony 
 either at the same time, or after the determination of the legal exceptions. 1 Salic. 59 • Cro. 
 Eliz. 196; Dyer, 38, 39; Hawk. b. 2, eh. 31, sec. 6. And, at the present day, it seems that 
 
116 APPEARANCE AND PLEA. 
 
 The following is the form of a 
 [*116] * Demurrer to an Indictment. 
 
 And the said A. B., in his own proper person, cometh into court 
 here, and having heard the said indictment read, saith, that the said in- 
 dictment, and the matters therein contained, in manner and form as the 
 same are above stated and set forth, are not sufficient in law, and that 
 he is not bound by the law of the land to answer the same ; and this 
 he is ready to verify : Wherefore, for want of a sufficient indictment 
 in this behalf, the said A. B. prays judgment, and that by this court 
 here he may be dismissed and discharged from the said premises in the 
 said indictment specified. 
 
 Joinder thereto. 
 
 And hereupon E. F., [the clerk of arraigns or clerk of the peace~\ who 
 prosecutes for our Lady the Queen in this behalf, saith, that the said 
 indictment and the matters therein contained, are sufficient in law to 
 compel the said A. B. to answer the same ; and he, the said B. F. is 
 ready to verify and prove the same, as the court here shall direct and 
 award : Wherefore, inasmuch as the said A. B; hath not answered to 
 the said indictment, nor hitherto in any manner denied the same, the 
 
 the defendant shall have judgment of respondeas ouster, in every case of felony where hia 
 •demurrer is adjudged against him ; for we have already seen, that where he unwarily dis- 
 closes to the court the facts of his case, and demands their advice whether they amount to 
 felony, they will not record or notice the confession, (2 Hale, 225, 257 ; 4 Bla. Com. 334;) 
 and a demurrer seems to rest upon the same analogy. Post. 21 ; 4 Bla. Com. 334; 8 East, 
 112; 2 Leach, 603; 2 Hale, 225, 257 ; 1 M. & S. 184; Burn, J. Demurrer; Williams, J. 
 Demurrer; but see Stark. 315. 
 
 " So, if the attorney-general demurrer to the defendant's plea, and it be adjudged against 
 him, he shall not be concluded from a trial, but be ordered to plead over to the felony. 
 2 Hale, 257 ; Burn, J. Indictment, XI. But in mere misdemeanors, if the defendant demur 
 to the indictment, whether in abatement or otherwise, and fail on the argument, he shall not 
 have judgment to answer over, but the decision will operate as a conviction. 8 East, 112 ; 
 Hawk. b. 2, ch. 31, sec. 7 ; Williams, J. Demurrer ; Burn, J. Demurrer, ace. ; 4 T. B,. 459, 
 semb. contra. The reason of this distinction seems to be, that there can be no demurrer in 
 abatement in cases not capital, except to a plea in abatement of the same description; and, 
 therefore, every objection to the indictment itself is in bar of the accusation. 1 Salk. 218, 
 220 ; Hawk. b. 2, ch. 31, sec. 7. In case, however, of judgment against the defendant on a 
 demurrer to a plea in abatement, or to a replication to such plea, the judgment is respondeas 
 ouster." Trem. P. C. 189, 190; 6 East, 602. 
 
 In this country, the general practice has been, in such cases, where there is, on the face 
 of the pleading, no admission of criminality on part of the defendant, to give judgment qaod 
 respondeat ouster, and the English distinction does not seem to be recognized. Com. v. God- 
 dard, 13 Mass. Rep. 456; Foster v. Com. 8 Watts & Serg. 77: Com. v. Barge, 3 Pa. 
 Hep. 262. 
 
 But in Tennessee, it has been held, that when a demurrer to an indictment for a misde- 
 meanor has been overruled, the defendant will not be permitted to plead to the indictment, 
 as a matter of right ; he must lay a sufficient ground before the permission will be granted. 
 Bennett v. State, 2 Yerg. 472. 
 
DEMURRER. 116 — 1 
 
 said E. F. for our said Lady the Queen, prays judgment, and that the 
 said A. B. be convicted of the premises charged upon him in and by 
 the said indictment. 
 
 Demurrer to plea. 
 
 If the defendant plead specially, the clerk of arraigns or clerk of the 
 peace may, in like manner, demur to the plea. And if judgment be 
 given for the crown, it is final in cases of misdemeanor, (a) a judgment 
 of respondeas ouster in capital felonies, and doubtful in felonies not capi- 
 tal, in the same manner as in the case of a demurrer to an indictment, 
 which I have just now noticed. 
 
 The following is the form of a 
 
 Demurrer to a plea in bar. 
 
 And E. F., [the clerk of arraigns or clerk of the peace] who prosecutes 
 for our Lady the Queen in this behalf, as to the said plea of the said 
 A. B., by him above pleaded and set forth, saith, that the said plea and 
 the matters therein contained, in manner and form as the same are 
 above pleaded and set forth, are not sufficient in law to bar or preclude 
 our said Lady the Queen from prosecuting the said indictment against 
 him the said A. B., and that he the said E. F., for our said Lady the 
 Queen is not bound by the law of the land to answer the same ; 
 and this he the said E. F., who *prosecutes as aforesaid, is ready [*117] 
 to verify : Wherefore for want of a sufficient plea in this be- 
 half, the said E. F., for our said Lady the Queen prays judgment, and 
 that the said A. B., may be convicted of the premises above charged 
 upon him in and by the said indictment. 
 
 Where in the case of a misdemeanor, the prayer of judgment was, 
 that the defendant should answer over, instead of that he might be 
 convicted, the court notwithstanding gave a final judgment.(S) 
 
 Joinder thereto. 
 
 And the said A. B. saith, that his said plea by him above pleaded, 
 and the matters therein contained, in manner and form as the same are 
 above pleaded and set forth, are sufficient in law to bar and preclude 
 our said Lady the Queen from prosecuting the said indictment against 
 him ; and the said A. B. is ready to verify and prove the same, as the 
 court here shall direct and award : Wherefore, inasmuch as the said E. 
 F., for our said Lady the Queen, hath not answered the said plea, nor 
 hitherto in any manner denied the same, he, the said A. B. prays judg- 
 ment, and that by this court here he may be dismissed and discharged 
 from the said premises in the said indictment specified. 
 
 (a) R. v. Taylor, 3 B. & C. 502. (6) R v. Taylor, 3 B. & 0. 502. 
 
CHAPTEK IV. 
 
 EVIDENCE. [1] 
 
 Having treated of the pleadings, up to the joining of issue, I shall 
 in this chapter treat of the evidence by which that issue is to be proved ; 
 and I propose doing so under the following heads : — (a) 
 
 Section I. What must be proved, and the manner of proving 
 it, p. 117. 
 
 1. What must be proved, and by whom, p. 117. 
 
 (a) By the prosecutor, p. 117. 
 
 (b) By the defendant, p. 123. 
 
 (c) Variance, p. 123. 
 
 2. The manner of proving the matter in issue, p. 125. 
 
 (a) By confessions, p. 125. 
 
 (b) Without inducement, p. 126. 
 
 (c) Before a magistrate, p. 181. 
 id) By presumptions, p. 134. 
 (e) Best evidence, p. 136. 
 
 (/) Secondary evidence, p. 137. 
 (g) Notice to produce, p. 138. 
 (h) By dying declarations, p. 140. 
 Section II. Written Evidence, p. 141. 
 
 (a) Acts of Parliament, p. 141. 
 
 (a) I have adopted here the same arrange- Civil Actions," first published in 1816, — an 
 
 ment I used in treating of evidence in one of arrangement I have followed ever since, 
 
 the earliest of my legal works, "A Digest of when I have had -occasion to treat of evi- 
 
 the Law relative to Pleading and Evidence m dence in oases civil or criminal. 
 
 [1] The doctrine of evidence upon criminal prosecutions, is, in most respects, the same as 
 that in civil actions. 4 Esp. Rep. 136, 139, 144; 2 East P. C. 993; 4 Bla. Com. 356; 1 
 Leach, 300, 392, a. a. ; 2 T. R. 201, n. a. ; 3 Camp. 401 ; 2 Stark. R. 155. The rules of 
 credibility are evidently, in common reason, the same in both cases ; aDd the chief distinc- 
 tion arises from that caution which always prevails when life is in question, and the anxiety 
 of judges to look on every circumstance with the most favorable eye for the defendant. 4 
 Esp. Rep. 136, 139, 144; 2 East P. C. 993. In one respect, indeed, the superior interest 
 which the public have in the punishment of offenders produces a more striking difference ; 
 for the party aggrieved is allowed to give evidence against the prisoner, though he is fre- 
 quently permitted, by restoration of stolen goods, by rewards, by reimbursement of costs, or 
 other means, to derive a benefit from his conviction. 2 East P. C. 993 ; 1 Leach, 131, 2, 3. 
 No injustice need, however, arise from this exception which has been found essentially 
 necessary for the purposes of public justice ; because the credibility of the witness is still 
 left to the jury, and they are able to estimate the probable influence Of interest, or of revenge, 
 on the testimony which he delivers. See "Waterman's Cr. Law, tit. Evidence. 
 
"WHAT MUST BE PROVED. 117—2 
 
 (b) Other records, p. 141. 
 
 (c) Matters quasi of record, p. 143. 
 
 (d) Other public documents, p. 145. 
 
 (e) Depositions of witnesses deceased or unable to travel, 
 
 p. 147. 
 (/) Deeds and other private written instruments, p. 148. 
 Section III. Paeol Evidence. 
 
 1. Who may be witnesses, p. 149. 
 
 (a) Quakers, &c, p. 149. 
 
 (b) Jews, Tur7cs, dec, p. 150. 
 
 (c) Infants, p. 150. 
 
 (d) Deaf and dumb persons, p. 150. 
 
 (e) Lunatics, p. 150. 
 
 (/) Judge or Juror, p. 151. 
 (g) Prosecutor, p. 151. 
 (h) Persons interested in the event, p. 151. 
 (i) Inhabitants, p, 152. 
 (j) Husband and wife, p. 152. 
 (k) Attorney, p. 153. 
 (I) One of two defendants, p. 153. 
 (m) Accomplice, p. 154. 
 (n) Persons convicted, p. 155. 
 (o) Examination on the voire dire, p. 155. 
 %. Number of witnesses required, p. 155. 
 
 3. Witnesses, how compelled to attend, p. 156. 
 
 4. Witnesses' expenses, p. 156. 
 
 SECTION I. 
 
 WHAT MUST BE PROVED, AND THE MANNER OF PROVING IT. 
 
 1. What must be proved, and by whom. 
 
 (a) By the prosecutor. 
 
 Where the defendant pleads not guilty, the prosecutor in 
 all cases begins to give evidence, and must *prove the defend- [*118] 
 ant to be guilty of the offence charged against him, before the 
 latter can be called upon for his defence. Even where an offence con- 
 sists wholly or partly of an omission or negative, the prosecutor must 
 prove the negative. [1] And therefore where, upon an indictment for 
 
 [1] Every one is presumed to be innocent until the contrary is proved ; and if there is 
 reasonable doubt of his guilt he is to have the benefit of such doubt. The rule in civil and 
 
 39 
 
118 ' EVIDENCE. 
 
 coursing deer in inclosed ground, without the consent of the owner, 
 the question was, whether the onus lay upon the prisoner to prove that 
 
 criminal cases is somewhat different. In the former the jury after weighing the testimony- 
 strike a fair balance and decide accordingly. But in criminal cases, in order to convict, the 
 testimony must be such as to satisfy the jury beyond a rational doubt that the prisoner is 
 guilty. Such doubt however, should be well grounded ; not mere possibility or speculation. 
 Everything relating to human affairs, and depending upon moral evidence, is open to some 
 possible or imaginary doubt. But no one is to be required to explain or contradict until 
 enough has been proved to warrant a reasonable and just conclusion against him, in the 
 absence of explanation or contradiction. 
 
 In general, therefore, as the law presumes that every person acts legally, and performs all 
 the matters which he is by law required to perform, the party who charges another with the 
 omission to do an act enjoined by law, must prove such omission, although it involves the 
 proof of a negative. Thus in an information against Lord Halifax for refusing to deliver up 
 the rolls of the auditor of the Exohequer, it was held that the plaintiff was bound to prove 
 the negative, viz. that Lord Halifax did not deliver them, for a person shall be presumed 
 duly to have executed his office till the contrary appear. B. N. P. 298. So in an action 
 for the recovery of penalties under the hawkers' and pedlers' act, (29 Geo. 3, c. 26, s. 4; 
 repealed and re-enacted by 50 Geo. 3, s. 7,) against a person charged with having sold goods 
 by auction in a place in which he was not a householder, some proof of this negative, viz. 
 of the defendant not being a householder in the places would be necessary on the part of the 
 plaintiff. Phill. Ev. 828, 8th ed ; 1st vol. p. 494, 9th ed. So in ejectment for not insuring 
 according to covenant, it lies upon the plaintiff to prove that no insurance has been effected. 
 Doe v. Whitehead,, 3 N. & P. 557 ; 8 A & E. 571. 
 
 Where a person in whom stolen property is found gives a reasonable account of how he 
 came by it, the prosecutor ought to show on the trial that the account is untrue. Aliter, if 
 that account be unreasonable or improbable on the face of it. Where a piece of wood, which 
 had been stolen, had been found by a constable in the possession of the prisoner five days 
 after it was lost, who said that he had bought it of N., who lived about two miles off, Mr. 
 Baron Alderson held that it was incumbent on the prosecutor to negative this statement. 
 N. was not called by either party. The prisoner was acquitted. Growhursts case, 1 Carr. & K. 
 370. 
 
 But where a fact is peculiarly within the knowledge of one of the parties, so that he can 
 have no difficulty in showing it, the presumption of innocence or of acting according to law, 
 will not render it incumbent upon the other side to prove the negative ; but the party who 
 must know the fact is put to the proof of it. Thus, in the case of a conviction under the 5 
 Ann. & 14, s. 2, (repealed,) against a carrier having game in his possession, it was held 
 sufficient that the qualifications required in the 22 & 23 Car. 2, c. 25, (repealed,) were nega- 
 tived in the information and adjudication, without negativing them in evidence. Twner's 
 case, 5 M. & S. 205. So, where on a conviction for selling, ale without a license, the only 
 evidence given was that the party sold ale, and no proof was offered of his selling it without 
 a license, the party being convicted, it was held that the conviction was right, for that the 
 informer was not bound to sustain in evidence the negative averment. It was said by 
 Abbott, C. J., that the party was called on to answer for an offence against the excise laws, 
 sustains not the slightest inconvenience from the general rule, for he can immediately pro- 
 duce his license ; whereas, if the case is taken the other way, the informer is put to a con- 
 siderable inconvenience. Harrison's case, Paley on Convictions, 45, 2nd ed. So also, Smith's 
 case, 3 Burr. 1476. The same rule has been frequently acted upon in civil cases. Thus, on 
 an action against a person for practising as an apothecary, without having obtained a. certi- 
 ficate according to the 55 Geo. 3, c. 194, the proof of the certificate lies upon the defendant, 
 and the plaintiff need not give any evidence of his practising without it. Apoth. Gomp. v. 
 Benthy, R. & M. N. P. C. 159. 
 
 If the charge consist in a criminal neglect of duty, as the law presumes the affirmative, 
 
WHAT MUST BE PROYED. 118 — 1 
 
 he had the consent of the owner: Lawrence, J., held, that it did not, 
 but that it was incumbent on the owner to prove the negative ; and the 
 owner not being in attendance, the prisoner was acquitted. (a) So, 
 where, upon an indictment for lopping and topping trees in the night 
 time, without the consent of the owner, it was proved that the prison- 
 ers had committed the offence in the j ight time, and when detected, 
 had run away ; that the owner, after the offence was committed, had 
 given orders for the apprehension of the prisoners, but died before the 
 trial; and the land-steward proved that he himself never gave consent, 
 and he believed his master never did: Bayley, J., told the jury that 
 they must be satisfied that the prisoners did not obtain the consent of 
 the owner, but left it to them to say whether the facts proved did not 
 furnish reasonable evidence of want of consent; and the jury found 
 the prisoners guilty. (ZA 
 
 But where an offence is created by statute, and an exception is made, 
 either by another statute, or by another and substantive clause of the 
 same statute, it is not necessary for the prosecutor, either in the indict- 
 ment or by evidence, to show that the defendant does not come within 
 the exception ; but it is for the defendant to prove the affirmatives, and 
 which he may do under the plea of not guilty. (c) 
 
 (<r) R. v. Rogers, 2 Camp. 654. (c) See R. v. Pemberton, I W. BL 230. See 
 
 (6) R. v. Hazy and Collins, 2 Oar. & P. 458. ante., p. 86. 
 
 the burthen of proof of the contrary is thrown on the other side. But in other cases, as 
 where thenegative does not admit of direct proof, or the facts lie more immediately within 
 the knowledge of the defendant, he is put to his proof of the affirmative. Story J. in K 
 States v. Biyward, 2 Gall. 284. 
 
 On an indictment for selling liquor without a license, it lies on the defendant to prove his 
 license. Gening v. The State, 1 M'Cord, 573. 
 
 United States v. Hayward, 2 Gallis, 485, 498. In all cases where a party stands charged 
 with an offence, his innocence is presumed, and the onus is upon the prosecutor, unless a 
 different rule has been expressly provided by statute. United States v. Gooding, 12 Wheat. 
 460, 471. Commonwealth v. Stow, 1 Mass. Rep. 54, S P. In the case last cited, the defend- 
 ant was indicted for having given a false and fraudulent certificate of membership, under the 
 Massachusetts law of June 12th, 1800; and on the trial it became a question whether it was 
 for the defendant to prove the certificate true ; the court thought not, and so held, though it 
 was contended that this was in effect, requiring from the prosecutor proof of a negative. 
 Upon an indictment under the statute law of the same slate, relating to hawkers and pedlers, 
 which has a proviso, that nothing therein contained " shall prohibit any person carrying and 
 selhnsr, &c. goods &e., of the produce or manufacture of the United States," &e. ; it was held 
 incumbent on the prosecutor to pr„ve that the articles were of fureign manufacture. Com- 
 monwealth v. Samuel, 2 Pick. 103. Where the charge, however, does not consist in a criminal 
 omission, or -breach of duty, the rule is otherwise. Yet. in a case in which the plaintiff 
 claimed a slave as forfeited by the defendant, upon the ground that the defendant, a widow, 
 to whom the slave had been assigned as dower, removed such slave from Virginia, without 
 the consent of the reversioner, contrary to the law of that state it was held incumbent on 
 the plaintiff to show that the reversioner did not consent. Hicks ei ux. v. Martin, 9 Mart. 
 Lou. Rep. 47. 
 
118 — 2 EVIDENCE. 
 
 As to the facts, &c, to be proved :"' it" is a general rule, 'that all the 
 facts and circumstances stated in. the indictment, which cannot be re- 
 jected as surplusage, must be proved ; as to what facts must be stated, 
 I have already treated of that subject. (a) [2] 
 
 But where a felony is made additionally penal by statute, if commit- 
 ted at a particular time or place, or under particular circumstances, 
 then, if the time or place or circumstances be not proved, the offender 
 
 (a) Ante, p. 86. 
 
 [2] It is now settled that the prosecution must prove every statement which enters into 
 the substance of the charge ; but it will not be compelled to maintain any averments ; which, 
 without being repugnant, are merely formal or superfluous. ' 2 Leach, 594. The distinction 
 between material and immaterial averments is perfectly well settled in criminal, as well as 
 in civil cases ; and if the averments be material, that is, if it be connected with the charge, 
 it must be proved ; but if it be wholly superfluous, it may be thrown out of the question. 
 See. People v. Townsend, 3 Hill, 419; Com. v. Hope, 22 Pick. 1; State v. Noble, 15 Maine, 
 476; Com. v. Tuck, 20 Pick. 356, 364; V. S. v. Victory, 1 Harr. & Johns. 427; Com. v. 
 Pray, 13 Pick. 359; U. S. v. Howard, 3 Sumner, 12 ; State v. Cassedy, 1 Richardson, 91 ; 
 State v. Morrison, 2 Iredell, 9 ; Com. v. Arnold, 4 Pick. 251 ; Com. v. Bolkom, 3 Pick. 281 ; 
 Com. v. Hunt, 4 Pick. 252 ; Com. v. Gable, 7 Serg. & Rawle, 423 ; Com. v. Bell, Addison, 
 111, 113 ; Com. v. Atwood, 11 Mass. Rep. 93. 
 
 But, it is a general rule which runs through the whole criminal law, that it is sufficient to 
 prove so much of the indictment as proves the defendant to have been guilty of a substan- 
 tive crime therein stated, though not to the full extent charged against him. 2 Campb. 583. 
 And therefore, if an indictment charges that the defendant did, and caused to be done, a 
 particular act, it is enough to prove either; (2 Campb. 584,) and the defendant may be found 
 guilty upon a count in an information, with charges him with having composed, printed, and 
 published a libel, if he is proved to have published, without any evidence that he was impli- 
 cated in the composition. 2 Campb. 583. And if negative averments be introduced, to show 
 that the case is not within any of the exceptions recognized by a legislative provision which 
 it would be his duty to produce," as matters of defence, if he could avail himself of their 
 benefit, there will be no necessity to support those allegations in evidence. 2 East, P. C. 
 782. But when the law presumes the affirmative of any fact, the negative of such fact must 
 be proved by the party averring it in pleading ; and, when any act is required to be done 
 by one, the omission of which would make him guilty of a criminal neglect of duty, the law 
 presumes the affirmative, and throws the burthen of proving the negative on the party who 
 insists on it. 3 East, 192 ; 3 Campb. 10, 12. 
 
 There are also some cases, in which it is not necessary that the proof should precisely 
 correspond with the allegations in the indictment. Thus, an indictment for murder, by 
 poisoning with one kind of poison, may be supported by proof of another kind of poison ; 
 and an indictment for killing with a sword, will be supported by proof of killing with a staff 
 or gun ; though an indictment for killing with poison, will not be supported by proof of kill- 
 ing by stabbing. 2 Hale, 291. So, if A. B. and C. be indicted for the murder of D., and it 
 is laid in the indictment that A. gave the stroke, and that B. and C. were present, aiding and 
 abetting, though upon the evidence it appears that B. alone gave the stroke, and that A. 
 and C. were present, this will maintain the indictment, for they are all principals. 2 Hale, 
 292. It is also a general rule, that whatever is merely superfluous, need not be proved, al- 
 though it be stated on the face of the proceedings. 2 Leach, 594. 
 
 It is necessary to adduce evidence to idontify the defendant. The question of identity is 
 for the consideration of the jury. In order to identify a person in court with one whom the 
 witness has described, the attention of the witness may be directed to the person in court, 
 and he may be asked whether that is the person of whom he had spoken. 
 
"WHAT MUST BE PROVED. 118 — 3 
 
 may still be convicted of the simple felony : as, for instance, if upon 
 an indictment for stealing from a dwelling house to the value of five 
 pounds, if the prosecutor prove the larceny, but fail in proving the 
 value, or that the stealing was from the dwelling house, the defendant 
 may be found guilty of the simple larceny. If upon an indictment for 
 breaking and entering a house, &c, and stealing therein, you prove the 
 larceny, but fail to prove the breaking and entering, the prisoner may 
 still be convicted of stealing in the dwelling house, or of the simple 
 larceny. [3] ' So, in all cases of offences which, either at common 
 
 [3] In au indictment for larceny, the evidence must correspond strictly with the indictment 
 as to the species of goods stolen; as, for instance, an indictment for stealing a pair of shoes 
 cannot be supported by evidence of a larceny of pair of boots. Where an indictment (on 
 the repealed stat. 16 G. 2, c. 34, and 14 G-. 2, o. 6, which made it felony without benefit of 
 clergy to steal any cow, ox, heifer, &c.) charged the defendant with stealing a cow, and in 
 evidence it was proved to be a heifer, this was holden to be a fatal variance ; for the statute 
 having mentioned both cow and heifer, proved that the words were not considered by the 
 legislature as synonymous. R. v. Cooke, 2 East, P. C. 617; 1 Leach, 123. See also R. v. 
 Douglas, I Camp. 212. In like mariner it was decided, that, as the statute specified lambs 
 and sheep, an indictment for stealing lambs was not proved by evidence of stealing sheep ; 
 (R. v. Loom, 1 Mood. C. C. 160 ;) and, for tlie same reason, it has been holden, upon the 
 Stat. 7 & 8 G. 4, c. 29, s. 25, that an indictment for stealing a sheep is not supported by 
 proof of stealing a ewe. R. v. Puddifoot, 1 Mood. C. C. 247 ; R. v. Birket, 4 0. & P. 216 ; 
 but see Reg. v. AT Culley, 2 Mood. C. 0. 34, contra. "Where an indictment upon the repealed 
 Stat. 43 Gr. 3, u. 58, charged the defendant with cutting J. S., and the evidence proved a 
 stabbing, the variance was holden fatal, for the statute used the alternative, stab or cut. 
 R. v. M'Dermot, R. & R. 356. Upon an indictment for perjury, the oath was alleged to have 
 been taken at the assizes before justices assigned to take the assizes, and it was holden a 
 fatal variance that the oath was administered when the judge was sitting under the commis- 
 sion of oyer and terminer and jail delivery. R. v. Lincoln, R. & R. 421. See R. v. Alford, 
 14 East, 218, and R. v. Godke, 7 0. & P. 559. And where an indictment for being at large 
 after an order for transportation stated that his Majesty had extended his, mercy to the pri- 
 soner, upon conditions of transportation for life beyond the seas, and the condition upon 
 which he received the royal mercy was n6"t general, but specific, that he should be transport- 
 ed to New South- Wales, or some of the islands adjacent, it was holden a fatal variance. R. 
 v. Fitzpairich, R. & R 512. So, an indictment for killing by striking will not be supported 
 by proof that the defendant knocked the deceased down, and that, by falling to the ground, 
 he received the injury which caused his death. R. v. Kelly, 1 Mood. 0. C. 113; R. v. Thomp- 
 son, Id. 139. 
 
 The names of the persons against whom the offence was committed, and of any party 
 whose existence is legally essential to the charge, must be strictly proved as laid. Thus, in 
 an indictment for larceny, the property in the goods must be strictly proved as laid ; that is, 
 the person whose goods they are alleged to be must be proved to be either the actual owner 
 or the bailee of them. Even where an indictment for burglary charged the defendant with 
 breaking and entering the house of J. D. with intent to steal the goods of J. W., and it ap- 
 peared in evidence that no goods of any person of the names of J. W. were in the house, 
 but that the name of J. W. had been inserted in the indictment by mistake, tho judges held 
 that the variance was fatal, and the defendant was accordingly acquitted. R. v. Jenks, 2 
 East, P. C. 514. So, if it appear in evidence, that the alleged owner of the goods is a feme 
 covert, the defendant must be acquitted ; (1 Hale 513 ;) for they are in law the goods of her 
 husband. So, if a burglary be alleged to have been committed in the house of J. G, and it 
 turn out in evidence to be the dwelling-house of J. S., the defendant must be acquitted for 
 
119 EVIDENCE. 
 
 [*119] law or by *statute include others of a less degree of en- 
 ormity, if you fail to prove the greater offence, but prove the 
 less, the defendant may be convicted of the latter : as, for instance, 
 upon an indictment for murder, if you fail to prove the malice pre- 
 pense, express or implied, the defendant may be found guilty of man- 
 slaughter ; if upon an indictment for burglary and larceny, you prove 
 the larceny, but fail in proving the breaking or entering, or that it was 
 in the night time, &c, the defendant may be found guilty of stealing in 
 the dwelling-house, or of the simple larceny ; if upon an indictment 
 for a felony or misdemeanor, you fail in proving the offence completed, 
 but prove an attempt to commit it, the defendant may be found guilty 
 of the attempt ;(a) if upon an indictment for robbery, you fail in prov- 
 ing the offence, but prove an assault with intent to commit it, the de- 
 fendant may be convicted of the assault with intent to rob.(5) And on 
 the other hand, if the indictment contain a statement of any facts or 
 circumstances not included in the definition of the offence, and which 
 need not to have been, stated, they may be rejected as surplusage, and 
 need not be proved ; and this, as well in an indictment on a statute, as 
 in an indictment for an offence at common law.(c)[l] 
 
 (a) 14 and 15 Vict. c. 100, B . 9. "(c) S. v. Jones, 2 B. & Ad. 611. 
 
 (b) Id. a. II. 
 
 the variance. R. v. White, 1 Leach 252. So, if a larceny be alleged to have been commit- 
 ted in the house of J". &., and it turn out in evidence to be the dwelling-house of J. S., the 
 defendant must be acquitted of the stealing in the dwelling-house, and can be found guilty 
 of the simple larceny merely. So, in all other cases, a material variance between the indict- 
 ment and evidence, in the name of the party injured, will be fatal, and the defendant must 
 be acquitted. But the party injured may be described either by his real name, or 
 by that by which he is usually known. Rex v. Norton, R. & R. 150; Rex v. J. Wil- 
 liams, 7 C. & P. 298. And if the name proved bejdem sonans witli that in the indictment, 
 and different in spelling only, the variance will be immaterial. Thus, " Segrave " for " Sea- 
 grave," Williams v. Ogle, 2 Str. 889; "Benedetto" for " Binidetto." Abitbol v. Benedetto, 2 
 Taunt. 401 ; and " Whyneard " for " Winyard," pronounced " Winnyard," R. v. Foster, R. & 
 R. 412, is no variance; but it has been decided that " M'Oann" and " M'Carn," R. v. Tunnett, 
 R. k R. 351; "Shakespeare" and "Shakepear," R. v. Shakespear, 10 East, 83 ; "Tabart" 
 and "Tarhart," Bingham v. Dickie, 5 Taunt. 814; and "Shutliff" and "Shirtliff," 1 Chit. 
 216, are not the same in sound. If the prosecutor be described with an addition, though un- 
 necessary, it must be proved. R. v. Dteky, I Mood. C. C. 303. So, if lie be described as a 
 person to the jurors unknown, and it appear in evidence that his name is known, the defend- 
 ant will be acquitted. See R v. Walker, 3 Campb. 264; R. v. Robinson, 1 Holt, 595. And 
 where, in an indictment for receiving stolen goods, the principal felon was described as a 
 person to the jurors unknown, but it appeared in evidence that lie was known, the receiver 
 wao acquitted for the variance. R. v. Wallcer, 3 Campb. 264. But a bill found by the same 
 grand jury, imputing the principal felony to J. S., does not, sufficiently for this purpose, 
 prove that J. S. committed the felony. R. v. Bush, R. & R. 372. 
 
 Sums of money stated in an indictment need not be proved as laid, (see R. v. Gilliam, 6 T. R. 
 265,) unless they form part of the description of a written instrument, or the exact sum be 
 of the essence of the offence. 
 
 [I] On an indictment for murder there cannot be a conviction of an assault with intent to 
 
WHAT MUST BE PROVED. 119 — 1 
 
 The time need not be proved as laid, unless where it is of the es- 
 sence of the offence.(a)[2] 
 
 (a) Ante, p. 85. 
 
 murder, nor vice versa. Com. v. Rdby, 10 Pick. 496. Nor of petit larceny on an indictment 
 for horse stealing. State v. Spurgin, 1 M'Cord, 252. Nor upon an indictment for stealing 
 can there be a conviction for receiving, &c. Buss v. The State, 1 Blackf. 191. See State v. 
 Taylor, 2 Bailey, 49 ; State v. Shepard, 7 Conn. 54. But in Stewart v. State, 5 Ohio Rep. 
 242, it was held that on an indictment. for an assault with intent to murder, there may be a 
 conviction of an assault simply ; the court remarking that " there is no foundation in this 
 country, for the distinction made in England, on this point, between felonies and misdemea- 
 nors — for here, an indictment for the higher offence rather adds to, than subtracts from his 
 privileges." In the case of Com. v. Zh-um, (19 Pick. Rep. 4 I 79,) it was held that on an indict- 
 ment for rape, the prisoner may be convicted of incest or assault and battery. The eourt 
 directed the jury, that if there was no sufficient endeavor to convict the defendant, either of 
 the rape charged, or of an assault with an intent to commit a rape, still, under the provisions 
 of the revised statutes, (eh. 137, sec. 11,) he might be convicted of an assault and battery.. 
 This provision is, that whenever any person indicted for a felony, shall be acquitted by 
 verdict, of part of the offence charged, and convicted of the residue, such verdict may be 
 recorded, and the prisoner shall be adjudged guilty of the offence, if any, which shall be sub- 
 stantially charged by the residue of such indictment and shall be sentenced and punished 
 accordingly. The court were of opinion that the indictment for rape necessarily charged 
 substantially and formally an assault and battery upon the person of the female alleged to 
 have been ravished, and that this case was within the statute. And the prisoner was con- 
 victed and sentenced accordingly. 
 
 In New York, in the case of.Lohman v. People, (1 Cdmstock Rep. 379,) it was held that 
 when an indictment alleges facts which constitute a misdemeanor, it will be good for that 
 offence ; although it state other facts which go to constitute a felony, provided all the facts 
 alleged, fall short of the charge of felony in consequence of some other facts essential to that 
 charge, e. g. the intent of the party accused not being averred. Thus, by statute of 1845, 
 ch. 260, sec. 2, it is a misdemeanor to administer drugs &c. to a pregnant female with intent to 
 produce miscarriage ; and by statute of 1846, ch. 22, sec. 1, it is manslaughter to use the 
 same means with intent to destroy the child in case the death of such child be thereby pro- 
 duced. The indictment charged all the facts necessary to constitute the crime of manslaugh- 
 ter except the intent with which the acts were done, and in conclusion it characterised the 
 crime as manslaughter; but the only intent charged was an intent to produce a miscarriage. 
 It was held that the indictment was fatally defective for the felony, but good for the misde- 
 meanor, and that the accused was properly convicted of the latter offence. And it seems 
 that a conviction for a misdemeanor under such an indictment would be a bar to a subsequent 
 indictment for the felony. 
 
 [2] The day and year on which facts are stated in the indictment or other pleading to have 
 occurred, are not in general material; and the facts may be proved to have occurred upon 
 any other day previous to the preferring of the indictment. B. v. Charnock, Holt, 301 • 1 
 Salk. 288; 9 St. Tr. 587-605, 542-552; Post. 7, 8; 9 East, 157; 1 Phil. Ev. 203; B. v. 
 Levy, 2 Stark. N. P. 458. To this rule, however, there are these exceptions: namely, first 
 that in all cases where bills of exchange, promissory notes, or other written instruments, not 
 under seal, are pleaded, the date, if stated, must correspond with the date of the instrument 
 when produced in evidence at the trial. Coxon v. Lyon, 2 Camp. 307, n. ; see Freeman v. 
 Jacob, 4 Camp. 249. Secondly, as deeds may be pleaded either according to the date which 
 they bear, or to the day on which they were delivered, if a deed produced in evidence bear 
 date on a day different from that stated, in the pleading, the party producing it must prove 
 that it was in fact delivered on the day alleged in the pleading. Thirdly, if any time stated 
 in a pleading is to be proved by matter of record, it must be correctly Btated. See Grey v. 
 
H2 2 " EVIDENCE. 
 
 Place is immaterial, unless 'where it is matter of local description, 
 such as the parish, &c, where the house or building is described to be 
 in an indictment for burglary, or for breaking and entering a house, 
 shop, warehouse, or a building within the curtilage, &c, in which cases 
 the local description must be proved as laid. (a) Upon an indictment 
 for treason or conspiracy, if you prove one good overt act in the county 
 where the venue is laid, you may prove the others to have taken place 
 in any other part of England.(J) And upon an indictment against an 
 accessory before or after the fact, he may be indicted in any place and 
 before any court where his principal may be tried, no matter where the 
 offence of accessory was committed.(c)[3] 
 
 (o) Ante, p. 86. (c) Ante, p. 15, 18. 
 
 (J) 2 Hawk. o. 46, s. 184-189. 
 
 Bennett, 1 T. R. 656; Pope v. Foster, 4 T. R. 590 ; Woodford v. Ashley, 11 East, 508 ; Ras- 
 iall v. Stratton, 1 H. B. L. 49; 2 Saund. 291, b. In these several respects, any — the 
 slightest— variance between the time so stated, and that appearing from the instrument or 
 record when produced,- will, in felonies, be fatal ; but, in misdemeanors, -the variance may, in 
 certain cases, be amended at trial. 9 &. 4, ch. 15. Fourthly, when the precise date of any 
 fact is necessary to ascertain and determine, with precision, the offence charged, or the mat- 
 ter alleged in excuse or justification, any — the slightest — variance between the pleading 
 and evidence in that respect, will be fatal. And lastly, where time is of the essence of the 
 offence, as in burglary or the like, the offence must be proved to have been committed in the 
 night time ; although the day on which the offence is charged to have been committed, is 
 immaterial, and it may be proved to have been committed on any other day previous to the 
 preferring of the indictment. In murder, also, the death must be proved to have taken place 
 within a year and a day from the time at which the stroke is proved to have been given. 
 2 Hawk. ch. 23, sec. 90. 
 
 [3] It is not, in general, necessary to prove that the facts stated in the indictment or sub- 
 sequent pleading, occurred in the parish or place therein alleged ; it is sufficient to prove 
 that they occurred within the county, or other extent of the court's jurisdiction. 2 Hawk, 
 ch. 25, sec. 84. But they must he proved to have been committed within the county, or 
 other extent of the court's jurisdiction, otherwise the defendant must be acquitted. And 
 where a forged bill of exchange was found upon J. S., who resided in Wiltshire, and had 
 resided there about a year under a false name, but which bill bore date more than two years 
 previously to its being found upon him, and at a time when he lived in Somersetshire ; on 
 an indictment against him for a forgery of the bill in Wiltshire, this was holden not to be 
 sufficient evidence of the offence having been committed in that county. R. v. Crocker, 
 2 New Rep. 8? ; see R. &R. 99, n. But although the offence must be proved to have been 
 committed in the county where the prisoner is tried, after such proof, the acts of the prisoner 
 in any other county, tending to establish the charge against him, are properly admissible in 
 evidence. 1 Ph. Ev. 206. If there be no such place as that stated in the indictment, it is 
 immaterial. R. v. Woodward, 1 Mood. C. C. 323. The statute 9 H. 5, et. 1, ch. 1, sec. 3, 
 (see 1 H. 5, ch. 18 ; and 18 H. 6, ch. 12,) which declared the indictment to be void in such a 
 case, is now repealed; and a further ground for the objection is removed by the jury in 
 criminal cases being now returned de corpore comltatus. 6 G. 4, ch. 50, sec. 20. An indict- 
 ment alleged a highway robbery to havo been committed in the parish of St. Thomas Pens- 
 ford, but the witness called in the parish of Pensford, upon which it was objected that there 
 was no proof that there was in the county any such parish as that laid in the indictment. 
 Littledale, J., before whom the indictment was tried, said that the objection was not valid, 
 and that he had once reserved a case for the opinion of the judges upon the very point, and 
 
WHAT MUST BE PROVED. 119—3 
 
 Where the intent with which an act is done forms a material ingredi- 
 ent in an offence, we have seen(a) that it must be laid in the indict- 
 
 (o) Ante, p. 88. 
 
 a great majority of the judges held that it was not incumbent upon the prosecutor to prove 
 affirmatively the existence within the county of the parish laid in the indictment, and ex-' 
 pressed a doubt how they should hold, even where it was proved negatively for the prisoner 
 that no such parish existed. B. v. Dowlmg, Ey. & M. N. P. 433. 
 
 To the above rule, as to the parish and place being immaterial, there are, however, these 
 exceptions : namely, first, that if the statute upon which the indictment is framed, give the 
 penalty to the poor of the parish in which the offence was committed, the offence musk be 
 proved to have been committed in the parish stated in the indictment ; secondly, upon an 
 indictment against a parish for not repairing a road, the part of the road out of repair must 
 be proved to be within the parish : and the same in all other cases in which the place where 
 the fact occurred is a necessary ingredient in the offence ; thirdly, if a place mentioned in 
 pleading be stated as part of the description of a written instrument, or is to be proved by 
 matter of record, any — the slightest — variance between the place as stated, and that appear- 
 ing from the written instrument or record when produced, will, in felonies, be fatal, (see 
 PittY. Green, 1 East, 188; PooIy. Gowrt, 4 Taunt. TOO; Goodtith v. Walter, id. 161; Mor- 
 gan v. Edwards, 6 Taunt. 394 ; Goodtitle v. Lamniman, 2 Camp. 274 ;) but, in misdemeanors, 
 the variance may be amended at the trial. 9 G-. 4, ch. 15. And lastly, where the place is 
 stated as matter of local description, and not as venue merely, the slightest variance between 
 the description of it in the indictment, and the evidence will be fatal ; even though the in- 
 jury be partly local and partly transitory j for, the whole being one entire fact, the local 
 description becomes descriptive of the transitory injury. R. v. Cranage, 1 Salk. 385 ; 2 
 Stark. E v. 1511. Thus, for instance, on an indictment for stealing in the dwelling house, 
 &c. for burglary, for forcible entry, or the like, if there be the slightest variance between the 
 indictment and evidence in the name of the parish or place where the house is situate, or in 
 any other description given of it, the defendant must be acquitted. The rule is the same, in 
 this respect, in criminal cases as in civil actions ; and, where in an action for non-residence, 
 the parish was styled in the declaration St. Ethelburg, and the real name appeared in 
 evidence to be St. Ethelburga, it was holden a fatal variance. Wilson v. Gilbert, 2 B. & 
 P. 281. 
 
 So, in an action for a nuisance in erecting a weir, if it be described in the declaration to be 
 at H., and be proved to be at a lower part of the same water, called T., the variance is fatal. 
 Shaw v. Wrighy, 2 East, 500. With reference to the description of the parish, there are 
 several apparently conflicting authorities, which can only be reconciled upon the principle 
 that it is sufficient to describe the parish either by its strict legal or popular name, provided 
 the description be such as cannot mislead. That where, in ejectment, the premises were 
 alleged to be in Earnham, and proved to be in Earnham Boyal, it was holden not to be a 
 fatal variance, unless it were shown that there were two Earnhams. Doe v. Salter, 13 East, 
 9. Where the premises were laid to be in Westbury, and it was proved that there were 
 two parishes of that name in the county, Westbury-upon-Trim and Westbury-upon-Severn, 
 the objection of variance was overruled, because in common parlance the addition was not 
 used, and the description could not mislead. Doe v. Harris, 5 M. & Sel. 326. 
 
 So, where premises were described as situate in the parish of Lambeth, the real name of 
 the parish being St. Mary, Lambeth, though usually called Lambeth, the variance was 
 holden to be immaterial. Kirkland v. Povmset, 1 Taunt. 570 ; E. v. Glossip, 4 B. & Aid. 
 619. In Taylor v. Williams, (11 B. Moore, 448; 3 Bingh. 449,) the parish was described 
 as the parish of St. James, in the County of Middlesex, and it appeared, from acts of Par- 
 liament, that there were two parishes of St. James, the one St. James, Clerkenwell, and the 
 other, that laid in the declaration, sometimes called St. James, and sometimes St. James 
 in the liberties of Westminster ; upon which ground the description was holden sufficient. 
 
 40 
 
119 — i EVIDENCE. 
 
 ment ; arid it must be proved as laid. There is some difficulty natur- 
 ally in proving this ; for no man can tell what passes in the mind of 
 another ; he can only judge of it from the other's admission or overt 
 acts. Where there is an admission of the intent, and the party proving 
 it is believed, it is of course conclusive evidence of it. But where there 
 is no admission, the prosecutor is then allowed to give in evidence any 
 acts of the defendant, indicating his intention, or from which it can be 
 
 presumed. 
 [*120] Another mode of judging of *the intent, is by presuming 
 
 that the party intended that which he effected, or that which 
 is the natural consequence of the act with which he is charged : if the 
 natural consequence of his act would be the death of another, a jury 
 may fairly infer from the act that it was done with intent to kill such 
 other person ; if the natural consequence of the act would be to defraud 
 another, a jury may fairly infer from it an intent to defraud. In forg- 
 ery formerly, the act was laid to be done with intent to defraud the 
 party who was actually defrauded, or who would have been defrauded 
 by it if the forgery had succeeded. In obtaining or attempting to ob- 
 tain money or goods by false pretences, the act was laid to have been 
 done with intent to defraud the party actually defrauded or attempted 
 to be defrauded by it. But now, we have seen(a) that it is sufficient, 
 in indictments for forgery, and for obtaining goods or money by false 
 pretences, to allege the act to be done "with intent to defraud," with- 
 out stating it to be to defraud any particular persons ;(b) and no doubt 
 the jury would be satisfied, from the nature of the act itself, that' it 
 was done for the purpose of defrauding some personal] 
 
 (a) Ante, p. 88. (6) 14 & 15 Vict. c. 100, a. 8. 
 
 And where, in ejectment, the premises were alleged to be in the parish of St. Luke, in the 
 county of Middlesex, and the^e appeared to be two parishes of St. Luke, the one St. Luke, 
 Chelsea, and the other, that in which the premises were, sometimes called St. Luke, Old 
 Street, but more commonly St. Luke, Middlesex ; the description was holden sufficient, as 
 it could not mislead. Doe v. Garter, 2 Y. & J. 492. 
 
 A prisoner was indicted at the central criminal court for burglary in a house stated in the 
 indictment to be situate at the parish of Woolwich. The prosecutor stated that the correct 
 name of the parish was St. Mary, "Woolwich ; but it being called in the central criminal 
 court act, 4 & 6 W. 4, ch. 36, sec. 2, the parish of "Woolwich, the indictment was therefore 
 held sufficient. Beg. v. St. John, 9 0. & P. 40. But where, in an action of trespass, for 
 breaking a house in the parish of Clerkenwell, there appeared to be two parishes in Clerk- 
 enwell, St. James and St. John, and the house was situate in the former, Gibbs, C. J., non- 
 suited the plaintiff. Taylor v. Hooman, 1 B. Moore, 161 ; 1 Holt, 523. And where the 
 premises were laid in the parish of St. George the Martyr, Bloomsbury, and were proved to 
 be in that of St. George Bloomsbury, there being two parishes of St. George in Bloomsbury, 
 the one called St. George the Martyr, and the other St. George Bloomsbury, the plaintiff 
 was non-suited. Harris v. Cooke, 2 B. Moore, 587 ; 8 Taunt. 539. 
 
 [1} On an indictment for murder, former attempts of the defendant to assassinate the 
 
"WHAT MUST BE PROVED. 120 
 
 It may also often be material to prove that the act charged in the in- 
 dictment, was done wilfully, and did not occur merely by accident ; and 
 in such a case, other acts of the defendant may be given in evidence, 
 from which the jury may fairly infer that it was done wilfully. Where 
 a man was indicted for setting fire to a stack of straw, and it appeared 
 
 deceased are admissible in evidence ; so are former menaces of the defendant or expressions 
 of vindictive feeling towards the deceased, or in fact, the existence of any motive likely to 
 instigate him to the commission of the offence in question. Arch. C. P. 73. 
 
 On the trial of an indictment for assault and battery, in order to show some motive of 
 resentment on the part of the defendant, it was held competent for the state to pro pe that 
 the prosecutor had said in the defendant's hearing, a short time before, " that no honest man 
 would avail himself of the bankrupt law," and then to prove further, that that defendant's 
 father had previously been talking about taking the benefit of that act. State, v. Griffis, 8 
 Iredell, 504. 
 
 On a eharge of sending a threatening letter, prior and subsequent letters from the prisoner 
 to the party "threatened may be given in evidence, as explanatory of the meaning and intent 
 of the particular letter upon which the indictment is framed, (R. v. Robinson, 2 Leach, 749,) 
 if the intent cannot be inferred from the letter itself. 2 Leach, 479 ; 4 C. & B. 562. 
 
 Upon a trial of an indictment for passing counterfeit bank notes, proof that prisoner had, 
 about the same time, passed another note of the same kind which was thought to be a coun- 
 terfeit, and which he took back, though this note is not produced on the trial, is admissible 
 evidence to prove the scienter. Martin v. Com. 11 Leigh, 745 ; Spencer v. Com. 11 Leigh, 
 751 ; Eendrick v. Com. 5 Leigh, 708 ; U. S. v. Craig, 4 Wash. C. 0. E, 729 ; State v. Antonio, 
 2 Tr. Car. R. 776; U. S. v. Doeble, 1 Baldwin, 519 It may also be proved by the fact of 
 similar forged orders found in the possession of the defendant, or of an accomplice in passing 
 them. Com. v. Percival, Thacher's C. C. 293 ; State v. Turfly, 2 Hawks, 248 ; U. S. v. 
 Sarrnan, 1 Baldwin's C. 0. R. 292. But in another case, where the second uttering had 
 been made the subject of a distinct indictment, evidence of such uttering was, in the dis- 
 cretion of the judge refused. Rex v. Smith, 2 0. & P. 633 ; Talfourd's Dick. Sess. 359 ; but 
 see Rex v. Kirkwood, Lewin's C. C. 103. The law appears to be, (Rex v. Taverner, Carr, C. 
 L. 195, and Rex v. Smith, 4 C. & P. 411,) that in order to enable the prosecutor to give in 
 evidence other utterings subsequent to that charged in the indictment, they must in some 
 way be connected with the principal case, or the notes or bills must be of the same manu- 
 facture and precisely similar. Indeed, even with regard to previous utterings of forged notes, 
 it seems doubtful whether they can be given in evidence to show a guilty knowledge, when 
 not of the same description and denomination with the note in question. Such evidence, 
 however, has sometimes been received. See Rex v. Millard, Buss, and Ry. 245 ; and Rex 
 v. Kirhwood, Lewin's C. C. 103. Upon an indictment for procuring base coin, with intent to 
 utter it, evidence of the defendant having a large quantity of such coin is admissible to prove 
 the intent. Rex v. Fuller, R. and R. 308. See Wharton's Or. Law, p. 69. 
 
 In R. v. Hunt et al., (3 B. & Aid. 566,) upon an indictment for conspiring and unlawfully 
 meeting for the purpose of exciting disaffection and discontent among his Majesty's subjects 
 at Manchester, it was holden that the previous conduct of a portion of the assembly, in 
 training, &c, and in assaulting persons whom they called spies, was competent evidence as 
 to the general character and intention of the meeting, although the effect of it as to each 
 particular defendant was a distinct matter for the consideration of the jury. It was held 
 competent to show also, as against Hunt, (who, though a stranger, except by political con- 
 nexion, had been invited to preside as chairman at the meeting.) that at a similar meeting 
 in another place, holden for an object professedly similar, certain resolutions had been pro- 
 posed by that person ; it being in its nature a declaration of his sentiments and views on 
 the particular subject of such meetings, and of the topics there discussed. So in an indict- 
 ment for adultery, it is said, previous improper familiarities may be shown to Bhow the quo 
 animo. 
 
120 — 1 EVIDENCE. 
 
 that it had been set on fire by the prisoner's having fired a gun very 
 near to it; the prosecutor having proved this, then proposed to prove 
 that the stack had also been set fire to the day before, and that the 
 prisoner was seen at the same time very near it with his gun: this was 
 objected to, as being evidence of another felony ; but Maule, J., held 
 it to be admissible ; he said that although it may be proof of another 
 felony, that circumstance does not render it inadmissible, if the evi- 
 dence be otherwise receivable : if a person were charged with having 
 wilfully poisoned another, and it were a question whether he knew a 
 certain white powder to be poison, evidence would be admissible to 
 show that he knew what the powder was, because he had administered 
 it to another person some short time before, who had died.(a) So, where 
 upon an indictment for maliciously shooting at the prosecutor, it be- 
 came a question whether it happened by accident or was done wilfully ; 
 and the prosecutor, to show that it was done wilfully, was allowed to 
 give in evidence that the prisoner had intentionally shot at him some 
 time before; and the judges held that the evidence was rightly re- 
 ceived.^) [2] 
 
 Malice is often a material ingredient in an offence, and expressed 
 particularly in the definition of it. When this is the case, the 
 [*121] indictment must state the act to have been maliciously *done, 
 and the malice as well as the act must be proved. [1] 
 
 (a) R. v. JDossett, 2 Car. & K. 306. (6) R. v. Voice, R. & Ry. 531. 
 
 [2] On an indictment for murder, former attempts of the defendant to assassinate the de- 
 ceased are admissible in evidence ; so are former menaces of the defendant, or expressions 
 of vindictive feeling towards the deceased, or, in fact, the existence of any motive likely to 
 instigate him to the commission of the offence in question. Archb. C. P. T3. 
 
 On a trial of indictment for larceny of a watch, evidence of another larceny of a cloak, 
 committed by prisoner, the two acts being wholly distinct and unconnected, are not admissi- 
 ble for any purpose. Walker v. Com., 1 Leigh, hli. But, on a trial for murder, evidence 
 that the prisoner, on the same day the deceased was killed, and shortly before the killing, 
 shot a third person, was held admissible, under the circumstances of the case, notwithstand- 
 ing the evidence tended to prove a distinct felony committed by- the prisoner ; such shooting, 
 and the killing of the deceased, appearing to be connected as parts of one entire transaction. 
 Eeath v. Com., 1 Robin. 135. And, where the scienter or quo ammo is requisite to, and con- 
 stitutes a necessary and essential part of the crime with which the person is charged ; and 
 proof of such guilty knowledge, or malicious intention, is indispensable to establish his guilt 
 in regard to the transaction in question, testimony of such acts, conduct or declarations of 
 the accused as tend to establish such knowledge or intent, is competent; notwithstanding 
 they may constitute in law a distinct crime. JDunn v. State, 2 Pike, 229. Thus, on an in- 
 dictment against persons for a conspiracy to carry on the business of common cheats, evi- 
 dence was admitted of the defendants having made false representations to other tradesmen 
 besides those named in the indictment. R. v. Roberts, 1 Camp. 400. 
 
 [1] Malitia, in its proper or legal sense, is different from that sense which it bears in common 
 speech. In common acceptation it signifies a desire of revenge, or a settled anger against a 
 particular person : but this is not the legal sense ; and Lord Holt, C. J., says upon this sub- 
 ject, " Some have been led into mistakes by not well considering what the passion of malice 
 
WHAT MUST BE PROVED. 121 
 
 Malice is proved in the same manner as intent, — from the admissions 
 or the overt acts of the offender. It may generally be inferred from 
 the nature of the act itself: if a man do an act, which cannot be of 
 any benefit to himself, or to those with or for whom he is acting, and 
 which must necessarily be of injury to another person, — as if he wil- 
 fully set fire to the house of another, or to his manufactory, or to his 
 ships, or to his stacks or crops of corn, — or if he destroy or damage 
 his trees, plants, fences, &c, not meaning to steal them, — or if he kill 
 or wound his cattle, &c, not meaning to steal them, — in these and the 
 like cases the jury will be warranted in inferring that the act was done 
 from malice to the owner or party injured. 
 
 is ; they have construed it to be a rancour of mind lodged in the person killing, for some 
 considerable time before the commission of the fact ; which is a, mistake, arising from the 
 not well distinguishing between hatred and malice. Envy, hatred and malice, are three dis- 
 tinct passions of the mind." Kel. 121. Amongst the Romans, and in the civil law, malitia 
 appears to have imported a mixture of fraud, and of that which is opposite to simplicity and 
 honesty. Cicero speaks of it (De Nat. Deor. Lib. 3, s. 30,) as "vermta et fallax nocendi ratio;" 
 and in another work, (De Offic. Lib. 3, s. 18,) he says, "nihi quidem etiam verm hmreditates 
 non honestoe videntur si smt maUMosis (i. e. according to Pearce, a malo animo profectis) Mm- 
 ditiis officiorum; non veritate sed simulatione qucesitce." And see Dig. Lib. 2, Tit. 13, Lex. 8, 
 where, in speaking of a banker or cashier giving his accounts, it is said, " Ubi exigitw argenta- 
 rius rationes edere, tunc punitur cum dolo malo non exhibet * * * Dolo malo aittem non edit, et 
 qui malitiose edidit, et qui in totum non ediV Amongst us malice is a term of law importing 
 directly wickedness, -and excluding a just cause or excuse. Thus Lord Coke, in his comment 
 on the words per moMtiam, says, " If one be appealed of murder, and it is found by verdict 
 that he killed the party se defendendo, this shall not be said to be per moMtiam, because he 
 had a just cause." 2 Inst. 384 And where the statute speak of a prisoner on his arraign- 
 ment standing mute of malice, the word clearly cannot be understood in its common accepta- 
 tion of anger or desire of revenge against another. 'Thus where the 25 Hen. 8, o. 3, says, 
 that persons arraigned of petit treason, &c, standing " mute of malice or froward mind," or 
 challenging, &c, shall be excluded from clergy, the word malice, explained by the accom- 
 panying words, seems to signify a wickedness or frowardness of mind in refusing to submit 
 to the course of justice ; in opposition to cases where some just cause may be assigned for 
 the silence, as that it proceeds from madness, or some other disability or distemper. And in 
 the statute 21 Edw. 1, De malefactoribus in parcis, trespassers are mentioned who shall not 
 yield themselves to the foresters, to., but " immo malitiam suam prosequendo et coniinuando," 
 shall fly or stand upon their defence. And where the question of malice has arisen in cases 
 of homicide, the matter for consideration has been (as will be seen in the course of the pre- 
 sent and subsequent chapters,) whether the act were done with or without just cause or ex- 
 cuse ; so that it has been suggested (Chappie, J., MS. Sum.,) that what is usually called 
 malice implied by the law would perhaps be expressed more intelligibly and familarly to the 
 understanding if it were called malice in a legal sense. Malice, " in ifs legal sense denotes 
 a wrongful act done intentionally without just cause or excuse." Per Littledale J. WPher- 
 son v. Daniels, 10 B. & C. 212. " We must settle what ia meant by the term malice. The 
 legal import of this term differs from its acceptation in common conversation. It is not as 
 in ordinary speech, only an expression of hatred and ill will to an individual, but means any 
 wicked or mischievious intention of the mind. Thus in the crime of murder, which is al- 
 ways stated in the indictment to be committed with malice aforethought, it is neither neces- 
 sary in support of such indictment to show that the prisoner had any enmity to the deceased 
 nor would proof of absence of ill will furnish the accused with any defence when it is 
 proved that the act of killing was intentional, and done without any justifiable cause." Per 
 Beat, J. Bex v. Harvey, 2 B. & 0. 268. 
 
121 — 1 EVIDENCE. 
 
 Such are the whole class of offences comprised in the stat. 7&8G. 
 4, c. 30, (Peel's Act,,) relating to malicious injuries ; but as that act com- 
 prised the offences of killing or wounding cattle, &c, and from some 
 previously decided cases it appeared that such offences were sometimes 
 committed out of malice to the animal, it was thought necessary to 
 provide that in all offences within that statute, it is immaterial whether 
 the offence shall be committed from malice conceived against the owner 
 of the property in respect of which it shall be committed or other- 
 wise.^.)^] 
 
 Malice may also be implied, where no malice against any particular 
 person in fact existed. Even in murder, which is the highest offence 
 of this class, in which malice forms a most material ingredient, and 
 where the malice must be preconceived, malice may in this way be im- 
 plied, although none actually existed as against any particular persom 
 As if a man, being on a horse which he knows to be used to kick, ride 
 him amongst a crowd of persons, and the horse kick a man and kill 
 him, the rider is guilty of murder, although he had no malice against 
 any particular person, nor any other intention than that of diverting 
 himself by frightening the persons around him.(6) So, where a person 
 fires a loaded pistol among an assembly of persons, or in the public 
 streets where many persons are passing, and thereby kills a man or the 
 like he is guilty of murder.(c) So, in all other cases, where a man wil- 
 fully does an act, which he knows must or probably will cause the 
 death of another, whom he knows not, and a man is thereby killed, he 
 is guilty of murder, in the same manner as if he had preconceived 
 malice against the individual killed. [3] 
 
 {a) 1 & 8 G. 4, e. 30, s. 25. (c) See R v. Bailey, R. & Ry. 1. 
 
 (6) 1 Hawk. u. 31, s. 68. 
 
 [2] On an indictment for malicious mischief under the Tennessee act of 1803, oh. 9, it is 
 not necessary to prove express malice. State v. Ooncil, 1 Tenn. Rep. 305. Malice, either 
 express or implied, against the owner and not agaiDSt the thing injured, is required. State 
 v. Wilcox, 3 Yerger, 278. 
 
 An indictment for malicious mischief, may conclude at common law ; and in such indict- 
 ment, it is not necessary to charge malice against the owner of the property injured. State 
 y. Scott, 2 Dev. & Bat. 35. 
 
 An indictment for malicious trespass alleged that the defendant did " maliciously and mis- 
 chieviously injure, and cause to be injured, a certain house, the property of one A. situate, 
 &c," "of the value of $50 to the damage of the said A. $5, contrary to the form of the sta- 
 tute, &c. Held that the offence was insufficiently described, and that the indictment should 
 have shown the specific injury done to the house. State v. Aydelott, 7 Blackf. 157. 
 
 In Massachusetts, it is said that, in order to a conviction of the offence of malicious mis- 
 chief, the jury must be satisfied that the injury was done either out of a spirit of wanton 
 cruelty, or of wicked revenge. Com. v. Walden, 3 Cush. Rep. 558. 
 
 [3] When a man commits an unlawful act, unaccompauied by any circumstances justify- 
 ing its commission, it is a presumption of law that he has acted advisedly, and with an in- 
 tent to produce the consequences which have ensued. Where a man was convicted of set- 
 
WHAT MUST BE PROVED. 121 — 2 
 
 Also, if a guilty knowledge from a material ingredient in the offence 
 charged, it can 'only be proved from the admissions or the overt acts 
 of the offender ; and in the absence of admissions, the prosecutor may 
 give in evidence any facts from which the jury may infer it. For in- 
 stance, upon an indictment for knowingly uttering a forged 
 bill of exchange, evidence *that the prisoner gave a false ac- [*122] 
 count of the parties to it, and when he was apprehended, had 
 other forged bills of exchange, all drawn upon the same parties, upon 
 his person, this was holden to be properly received in proof of his guilty 
 knowledge that the bill he was charged with uttering, was a for- 
 gery.^) So, upon an indictment for forging and uttering a bank of 
 England note, which appeared to have been- done with a camel hair 
 pencil, the prosecutors, for the purpose of proving guilty knowledge, 
 tendered in evidence another note, forged in the same manner, with the 
 same materials, uttered by the prisoner about three months before, and 
 two 10Z. notes, and thirteen 11. notes of the same fabrication, from the 
 files of the bank, (but when received by them did not appear,) all of 
 which had the prisoner's handwriting on the back : the judge received 
 
 (a) R. v. Bough, R. & Ry. 120. 
 
 ting fire, to a mill, with intent to injure the occupiers thereof, a doubt occurred whether under 
 the words 43 Geo. 3, oh. 58, an intent to injure or defraud some person was not necessary to 
 be proved ; or at least some fact from which such intention could be inferred, beyond the 
 mere act of setting the mill on fire ; but the judges were of opinion that a person who does 
 an act wilfully, necessarily intends that which must be the consequence, of the act, viz., 
 injury to the owner of the mill burned., Farrington's case, Russ. & Ry. 20t. See also 
 Philps' case, 1 Moody C. C. 263. "In every charge of murder," says Foster, "the fact of 
 killing being first proved, all the circumstances of accident, necessity or infirmity, are to be 
 satisfactorily proved by the prisoner, unless they arise out of the evidence produced against 
 him, for the law presumes the fact to be founded in malice, until the contrary appears." 
 Foster, 255 ; 1 Hale P. C. 455 ; 1 Bast P. C. 340. Presumption of a malicious intent may 
 arise from the weapon used in the perpetration of the deed. Woodsides v. The State, 2 
 Howard, 656. When on the trial of an indictment for murder, the killing is proved to have 
 been committed by the defendant, and nothing further is shown, the presumption -of law is 
 that it was malicious and an act of murder, and proof of matter of excuse or extenuation 
 lies on the defendant. Com. v. York, 9 Metcalf i Rep. 93. The rule of law is, that a, man 
 shall be taken to intend that which he does; or which is the immediate or necessary conse- 
 quence of his act. A mortal wound given with a deadly weapon in the previous possession 
 of the slayer, without any, or upon very slight provocation, is prima facie, wilful, deliberate 
 and premeditated killing; and throws upon the prisoner the necessity of proving extenuating 
 circumstances. EilVs case, 2 Grattan, 594. 
 
 A man shooting at a tame fowl, with intention to steal it, kills a person ; that in England 
 is murder punished with death ; but in Pennsylvania, it would be murder in the second de- 
 gree. An officer of justice, or a private man, is killed in endeavoring to part two persons 
 whom he sees fighting; a person throws a large stone, or piece of timber, from a house into 
 a. street where he knows many persons ar9 passing and kills another; a man riding in a road 
 a dangerous horse apt to strike happens to kill a person ; all these cases are murder in Eng- 
 land ; but in Pennsylvania, they would be murder in the second degree. Corn. v. Dougherty, 
 1 Browne, Appendix 18 ; see also, Pennsylvania v. iPFaU, Addis. Rep. 25T. 
 
122 EVIDENCE. 
 
 the evidence, subject to the opinion of the judges as to its admissibility ; 
 and the judges afterwards held that it was admissible for the purpose, 
 subject however to observations as to the weight of the evidence, which 
 would be more or less considerable, according to the number of the 
 other notes, the distance of time at which they were put off, the situa- 
 tion in life of the prisoner, so as to make it more or less probable that 
 so many nctes should pass through his hands in the regular way of 
 business.(a)[l] 
 
 Also, where several offences of the same nature form parts of one 
 entire transaction, it is in the discretion of the judge to confine the 
 prosecutor to the proof of one, or to allow him to give evidence of the 
 others also : as for instance, where a shopman being suspected of steal- 
 ing from his employer's till, marked money was put into the till, and 
 being watched, he was observed going to the till, immediately after 
 which some of the money was missed ; at this part of the evidence at 
 the trial, it was objected for the prisoner that the prosecutor should ibe 
 confined to this instance, but the judge overruled the objection ; it was 
 theft proved that shortly after, he was observed to go again to the till, 
 that he took his hand out of it, clenched, and put it into his waistcoat 
 pocket, and that the till being immediately examined, it was found that 
 more of the money was gone from it ; the prisoner was then apprehend- 
 ed and searched, and six shillings of the marked money found upon 
 him : upon motion to stay the judgment, on the ground that evidence 
 of another offence had been received, the court held that it was in the 
 discretion of the judge to allow it; the two felonies were so connected, 
 as to form parts of one entire transaction, and the one was evidence to 
 show the character of the other.(a)[2] 
 
 (a) E. v. Ball, R. & Ry. 132. (6) B. v. ElUs, 6 B. & C. 145. 
 
 [1] Evidence of a prisoner's endeavors to engage a person to procure for him counterfeit 
 money; of his declared intention to become acquainted with a counterfeiter, and to remove 
 to a place near his residence, is admissible on a prosecution for passing a counterfeit note to 
 prove the scienter. Com. v. Finn, 6 Rand. 701. The State v. Houston, 1 Bailey, 300 ; Mar- 
 tin v. Com. 5 Leigh, 707. But the notes must be produced, or proved to be destroyed, or in 
 the prisoner's possession, and not produced on notice. People v. LagriUe, 1 Wheeler's Cr. 
 Cas. 415 ; Helm's case, 1 Rogers' Rec. 46 ; Case of Smith et al., 4 Id. 166 ; Dougherty's case, 
 3 Id. 148. But proof of the scienter is not admissible, before the principal charge is estab- 
 lished, Jones' case, 6 Id. 86. On an indictment for passing a counterfeit silver dollar, 
 knowingly, evidence that defendant had counterfeited other dollars, was held not admissible. 
 State v. Odel, 2 Const. Rep. 758. But on an indictment for counterfeiting money, evidence 
 of possession of instruments of coining is admissible. State v. Antonio, lb. 776. 
 
 [2] Where the offence is a cumulative one, consisting, in itself, in the commission of a 
 number of acts, evidence of those various acts so far from being inadmissible, is essential to 
 the proof of the charge. In an indictment for obtaining goods by false pretences, it is allow- 
 able to prove that the same pretences were used to another. ColMn's case, 4 Roger's Rec. 
 143. On an indictment against the defendants for a conspiracy to cause themselves to be 
 believed persons of large property for the purpose of defrauding tradesmen ; after proof of a 
 
WHAT MUST BE PROVED. 122 — 1 
 
 So, in other cases, there can be no objection that the evidence of one 
 offence, proves the defendant to be guilty of another offence 
 also.(a) And now by stat 14 & 15 Vict. *c. 100, s. 17, in the [*123] 
 case of larceny, although the indictment state only one act of 
 stealing, and at one time, yet if it appear that the property was in fact 
 stolen at different times, the prosecutor shall not, by reason thereof, be 
 required to elect on which taking he will proceed, unless it shall ap- 
 pear that there were more than three takings, or that more than the 
 
 (a) R. v. Moore, 2 Car. & P. 235. 
 
 representation to one tradesman, evidence was offered of a representation to another trades- 
 man at a different time, and admitted by Lord Ellenborough, who said that cumulative 
 instances were necessary to prove the offence, and that the same sort of evidence was 
 allowed on an indictment for barretry. Robert's case, 1 Camp. 399. To prove fraud against 
 the defendant, a transaction between him and a third person of a similar nature to the one 
 in question, may be given in evidence. Snell et al. v. Moses et al. 1 Johns. 99. See also 
 Rankin v. BlaclcweU, 2 John. Cas. 193. In an action for a conspiracy to defraud, A. by falsely 
 representing B. to be a man of credit, evidence that such representations were made to others, 
 in consequence of which such other persons made the same representations to A. ts admis- 
 sible. Gardner v. Preston, 2 Day's Cases; 205. 
 
 In Connecticut it has been held, that on the trial of a man charged with the murder of his 
 wife, the state could show, for the purpose, it was said, of rebutting the presumption of inno- 
 cence arising from the marital relations between the defendant and the deceased, that he had 
 lived in adultery with another woman. Evidence of previous malice undoubtedly would - 
 have been admissible to show the quo animo, or perhaps to lend to circumstantial evidence 
 a motive, but it is hard to see how such evidence as that of adultery could have been admitted 
 to rebut the presumption of innocence. In England it has been held, that on the trial of a 
 person charged with an unnatural crime, it was not evidence to prove that the defendant had 
 admitted that he had a tendency to such practices ; and it would be strange if a man's hav- 
 ing been guilty of other offences, or having a tendency to commit them, should be received 
 as evidence to rebut the presumption of his innocence of a particular charge. If such a 
 reason be allowed to operate there is scarcely any evidence derogatory to a defendant's 
 character which could be excluded. Wharton's Cr. Law, citing State v. Watkins, 9 Conn, 
 Rep. 47 ; 1 Phil. Ev. 499 ; 1 Russ. on Cr. 700. 
 
 Although the evidence offered may be proof of another felony, that circumstance does not 
 render it inadmissible, if the evidence be otherwise receivable, either as part of the res gestce, 
 or in order to show intent. In many cases it is an important question whether a thing was 
 done accidentally or wilfully. Thus, as is said by Maule, J., in a recent case, if a person 
 were charged with having wilfully poisoned another, and it were a question whether he 
 knew a certain white powder to be poison, evidence would be admissible to show that he 
 knew what the powder was, because he had administered it to another person who had died, 
 although that might be proof of a distinct felony. Regina v. Dassett, Maule, J., 2 Car. & Kir. 
 306. And so, it is competent for the prosecutor of an indictment for selling liquor without 
 a license, to prove that the defendant kept a bar with bottles in it. The People v. Hubert, 4 
 Denio, 133. But, where a defendant was on trial for breaking and entering the City Hall 
 at Charleston, and a mass of burglarious tools and implements found in his possession at the 
 time of his arrest, were exhibited to the jury ; some of which were adapted to the commis- 
 sion of the offence with which he was charged, it was held, that it was not competent for 
 the government to prove, that the ward of a key found among such tools and implements 
 was made and fitted by the defendant, for the purpose of opening the door of the building of 
 the Lancaster Bank. Com. v. Wilson, 2 Cushing, 590. Wharton's Cr. Law, p. 240 
 
 41 
 
12S EVIDENCE. 
 
 space of six calender months elapsed between the first and the last of 
 such takings ; and in either of such last-mentioned cases, the prosecu- 
 tor shall be required to elect to proceed for such number of takings, 
 not exceeding three, as appear to have taken place within the period 
 of six calendar months from the first to the last of such takings.(a)[l] 
 
 (b) By the defendant. 
 
 If the defendant plead specially, as where he pleads auterfois acquit, 
 &c, — or, upon an indictment against a parish for non-repair of a high- 
 way, where the defendants plead that others, and not the parish, are 
 bound to repair, — the rule as to the right to begin, is the same as in 
 civil actions, namely, that the party who adds the similter, begins. 
 When the plea is put in issue therefore, the defendant must prove it, 
 
 (a) 14 & 15 Vict c. 100, a. 17. 
 
 [1] In all cases of larceny, and like offences, several articles may be joined in a count, the 
 proof of either of which will sustain the indictment. It has even been ruled, that the same 
 count may join the larceny of several distinct articles, belonging to different owners, where 
 the time and the place of the taking of each are the same. An indictment may, in a single 
 count, charge the prisoner with stealing three negroes, and the offence is complete if he stole 
 either of the negroes, and the conviction will be sustained. Com. v. Williams, Thacher C. 
 C. 722 ; State v. Johnson, 3 Hill's S. C. Rep. 1. 
 
 In if. v. Reid et al., (1 Eng. Eep. 599,) per Jervis, C. J., it was said that an order, to con- 
 vict a prisoner of a felony, not a felony primarily charged in the indictment, it is necessary 
 that the minor felony should be substantially included in the indictment. Thus an indict- 
 ment for burglary includes an indictment for housebreaking, and generally also for larceny, 
 and the prisoner on this may be found guilty of one or other of these felonies. But, in an 
 indictment for burglary, and for breaking and entering a house and stealing, the prisoner 
 cannot be found guilty of breaking and entering a house with intent to steal. In Pennsyl- 
 vania, on an indictment for adultery, the defendant may be convicted of fornication. Com. 
 v. Roberts, 1 Yeates, 6 ; and of the same offence on an indictment for seduction. Denkey v. 
 Com., Sup. Ct. Pa., Jan. 1852. 
 
 If a man be charged with an offence as principal in the first degree, evidence of his being 
 principal in the second degree will support the indictment, and e converso; as, for instance, 
 if A. and B. be indicted for murder, and the indictment charge that A. gave the mortal 
 stroke, and that B. was present, aiding and abetting, evidence that B. gave the mortal stroke, 
 and that A. was present, aiding and abetting, will support the indictment. Post. 351.; R. 
 v. Mackally, 9 Co. 67 6; Plowd. 98; Reg. v. Crisham, C. & Mar. 187. Also, in conspiracies, 
 and even in high treason, when it consists of a conspiracy, and in all other offences which 
 involve a conspiracy, not only the acts of the defendant himself, but also all the acts of bis 
 accomplices, done in furtherance of the common object, no matter where committed, maybe 
 given in evidence against him. if. v. Hardy, 1 East P. C. 98, 99; R. v. Toolce, Id. 98. As 
 a foundation for such evidence, however, the existence of the conspiracy must be first proved ; 
 2ndly, evidence must be given to connect the defendant with the conspirators; and 3rdly, it 
 must be proved that the person whose acts are about to be given in evidence was connected 
 with the defendant in the same conspiracy. The prosecutor may, however, either prove 
 the conspiracy, which renders the acts of the conspirators admissible in evidence, or he may 
 prove the acts of the different parties, and so prove the conspiracy, if. v. Lovat, 9 St. Tr. 
 670, &c. See also if. v. Stone, 6 T. R. 528; if. v. Standby, R. & R. 305; if. v. Gogerly, 
 Id. 343; if. v. Bmgley, Id. 446; Reg. v. Frost, 9 0. &, P. 149; ife?. v. SheUard, Id. 277. 
 
"WHAT MUST BE PROVED. 123—1 
 
 in the same manner that a prosecutor must prove an indictment. Where 
 the plea is auterfois acquit or convict, the defendant must get the former 
 record made up, and produce a certified copy of it in evidence, as di- 
 rected.^) He must also, if necessary, prove his identity with the 
 party before acquitted or convicted, and the identity, in substance, of 
 the offence in both cases.[2] 
 
 Under the general issue, not guilty, the defendant may make what 
 defence he can, showing that he is not guilty. And if indicted as ac- 
 cessory before or after the fact to a person named, he may contest the 
 case of the prosecutor against that party, and show that he is not guilty ; 
 or if indicted as accessory to a person unknown, he may show that no 
 felony in fact was committed. [3] 
 
 Under the general issue also, he may set up an alibi as a defence, and 
 call witnesses to prove it ; he may call witnesses to prove any other 
 defence he may set up ; or he may call witnesses to character, — in lar- 
 ceny, as to his honesty, — in murder, &c, as to his humanity, — in 
 treason, as to his loyalty, — in riot, as to his peaceable disposition, — and 
 
 (a) Ante, p. 113. 
 
 [2] As to the right of the defendant, he may begin upon a plea in justification of a libel, 
 there being no general issue, although the plaintiff holds one affirmative there ; viz. in mak- 
 ing out his damages. Cooper v. Wakley, 3 Carr. & Payne, 410; 1 Mood. & Malk. 248, S. 0. 
 So, on a plea of a right of way to an action of trespass quare clausum fregit, though the 
 plea began with denying the force and arms, &c. Hodges v. Bolder, -3 Campb. 366; Jackson 
 v. Sesketh, 2 Stark. Rep. 518, S. P. So under a justification of an assault to suppress a 
 mutiny. Bedell v. Russell, Ry. & Mood. 293. So of 3 justification for taking goods under 
 proceedings upon a commission of bankruptcy. Cotton v. James, 3 Carr. & Payne, 505 ; 1 
 Mood. & Malk. 273, S C. So on a justification in trespass, though the declaration allege 
 special damage. Fishy. Travers, 3 Carr. & Payne, 578. Per Lord Tenterden, C. J., in 
 Fowler v. Coster, 1 Mood. & Malk., 242, 3. 
 
 [3] Upon all capital accusations, the plea of not guilty puts in issue the whole of the 
 charge, not merely whether the defendant actually did the facts stated on the record, but 
 the criminal intention with which it is alleged he was actuated, and the legal quality of the 
 guilt to be deduced from the whole. 4 Bla. Com. 338 ; 1 Erskine's Speeches, 278. In this 
 respect there is a very important distinction between civil and criminal proceedings ; in the 
 former, if the facts are admitted, and the defence is, that they were rendered legal by circum- 
 stances, a special justification must be pleaded ; but, in the latter, no justification can be 
 admitted, to limit the defendant's means of defence ; nor is it at all necessary, for if it appear 
 that the facts, though true, were legal, the defendant will, of course, be acquitted. 2 Hale, 
 258 ; 4 Bla. Com. 338, 9 ; 1 Erkine's Speeches, 278. Thus on an indictment for murder, a, 
 man cannot plead that he killed the deceased in the fury of passion, and therefore it is only 
 manslaughter; nor that he slew bim in self defence, and so is altogether guiltless; but he 
 must plead generally "not guilty," and give the special matter in evidence. 2 Hale, 258, 
 304; Bro. Abr. Appeal, 122; 4 Bla. Com. 338; 6 Mod. 172; Trem. P. C. 270; Bac. Abr. 
 Assault and Battery, C. So also in indictments for felony and treason, if the facts stated 
 amount to neither of them, the prisoners will be discharged under the general issue; for the 
 terms "feloniously," and "traitorously," by which those crimes are designated, are the gist 
 of the charge ; and unless they are shown to be properly applied, the indictment cannot be 
 supported. 4 Bla. Com. 338, 9. 
 
123 2 EVIDENCE. 
 
 the like. Witnesses to character are always useful : in doubtful cases 
 they may affect or influence the verdict ; or if the defendant be found 
 guilty, they may have the effect of mitigating the punishment. [4] 
 
 [4] In all criminal prosecutions the prisoner is always permitted to call witnesses to speak 
 of his general character, who are usually examined in his behalf, as to how loDg they have 
 known him, and what his general character for honesty, humanity, or peaceable conduct, 
 (according to the nature of the offence charged) has been during that time. The inquiry 
 ought manifestly to bear some analogy and reference to the nature of the charge against the 
 prisoner. On a . charge of stealing it would be irrelevant and absurd to inquire into his 
 loyalty or humanity ; on a charge of high treason, it would be equally absurd to inquire 
 into his honesty and punctuality in private dealings. The inquiry must also be made with re- 
 ference to the general character of the prisoner ; for it is general character alone which can 
 afford any test of general conduct, or raise a presumption that the person who had maintain- 
 ed a fair reputation down to a certain period, would not then begin to act an unworthy 
 part : and, therefore, proof of particular transactions, in which the prisoner may have been 
 concerned, are not admissible. 
 
 Formerly evidence of the prisoner's good character was admitted in capital cases only, in 
 favorem vitas. Bex v. Harris, 2 St. Tr. 1038. The evidence is now admitted in all prosecu- 
 tions which subject a man to corporal punishment ; but not in actions or informations for 
 penalties, though founded on the fraudulent conduct of the parties. Peake's Ev. 1. The 
 true line of distinction, C. B. Eyre observed, is this : in a direct prosecution for a crime such 
 evidence is admissible ; but where the prosecution is not directly for the crime, but for the 
 penalty, it is not. Attorney- General v. Bowman, cited 2 Bos. & Pul. 582 ; 1 Phil. Ev. 469. 
 See 2 Overton, 94 ; Wallace v. Clark. 
 
 It has been usual to treat the good character of the party accused as evidence to be taken 
 into consideration only in doubtful cases. Juries have generally been told that where the 
 facts proved are such as to satisfy their minds of the guilt of the party, character however 
 excellent is no subject for their consideration; but that when they entertain any doubt as 
 to the guilt of the party, they may properly turn their attention to the good character which 
 he has received. It is, however, submitted with deference that the good character of the 
 party accused, satisfactorily established by competent witnesses, is an ingredient which 
 ought always to be submitted to the consideration of the jury, together with the other facts 
 and circumstances of the case. The nature of the charge, and the evidence by which it is 
 supported, will often render such ingredient of little or no avail ; but the more correct course 
 seems to be, not, in any case, to withdraw it from consideration, but to leave the jury to 
 form their conclusion, upon the whole of the evidence, whether an individual whose charac- 
 ter was previously unblemished, has or has not committed the particular crime for which he 
 is called upon to answer. 
 
 The prosecutor cannot enter into the defendant's character, unless the defendant enable 
 him to do so, by calling witnesses in support of it : and even then the prosecutor cannot ex- 
 amine to particular facts, the general character of the defendant not being put into issue, but 
 coming in collaterally. 
 
 In Bex v. Stannard, 1 0. & P. 673, Patteson, J., said: "I cannot in principle make any 
 distinction between evidence of facts and evidence of character ; the latter is equally laid 
 before the jury as the former, as being relevant to the question of guilty or not guilty ; the 
 object of laying it before the jury is to induce them to believe, from the improbability that a 
 person of good character should have conducted himself as alleged, that there is some mis- 
 take or misrepresentation in the evidence on the part of the prosecution, and it is strictly 
 evidence in the case." And per Williams, J., " It is evidence to be submitted to the jury to 
 induce them to say whether they think it likely that a person with sueh a character would 
 have committed the offence." 
 
 Bull. N. P. 296, citing Martyn v. Bind, Cowp. 437. The ordinary course, however, is to 
 
WHAT' MUST BE PROVED. 123—3 
 
 (c) Variance. 
 
 I have already noticed this subject fully, in treating of the cases in 
 which the court, at the trial, will amend the indictment.(a) I shall 
 therefore notice it in this place very shortly. 
 
 If there be a variance between the indictment, and the evidence 
 brought forward to sustain it, the court on application will 
 amend *the indictment in the following instances : — where the [*124] 
 variance is in the setting out of any matter in writing or in 
 print, — or in the name of any county, city, town, parish, &c, — or in 
 the name of the owner of any property which is the subject of the in- 
 dictment, — or in the name of any person injured, or intended so to be, N 
 by the offence charged, — or in the name of any person mentioned in 
 the indictment, — or in the " name or description of any matter or thing 
 whatsoever therein named or described," — or in the ownership of pro- 
 perty therein named or described.(6)[l] "** 
 
 (a) See ante, p. 99. (6) See ante, pp. 113, 114. 
 
 ask the witness whether he has not heard that the prisoner has been tried for a particular 
 offence. 
 
 In bastardy cases the general character of the prosecutrix for chastity may be inquired 
 into. Short v. The State. 
 
 If on the trial of an indictment, the defendant introduces evidence of his good character 
 prior to the alleged commission of the crime charged, it is competent to the government to 
 prove that subsequently to that time his character has been bad. Commonwealth v. Sachet, 
 22 Pick. 394. Good character is available only in doubtful cases. Bennett v. The State, 8 
 Humphreys, 118. 
 
 In criminal charges, the prisoner's character cannot be put in issue by the state unless he 
 open the door by giving testimony to it. But it is not a conclusion of law, that from his 
 silence the jury are to believe he is a man of bad character. State v. O'Neil, 1 Iredell, R. 
 0. 251. 
 
 Where no evidence of general character has been given, the subject of character is not 
 one for the consideration of the jury. Therefore, when on the trial of an " indictment for 
 murder, the evidence was circumstantial, and the judge instructed the jury that fair character 
 was important to the prisoner, and that they were to inquire why it was that she had given 
 no evidence of her general character." Meld, that such instruction suggested the inference 
 that her character was bad, and was erroneous. The People v. Bodine, 1 Denio, 281. 
 
 On a trial for murder, evidence of the character of the deceased as a violent man is not 
 admissible for the defendant. State v. Mawley, 4 Harrington, 562. 
 
 [1] At common law, an indictment can only be amended With the consent of the grand 
 jury, before they are discharged ; and there seems to be an absence of statutory provision 
 on the subject in this country. The question, therefore, of variance, is one of paramount 
 importance. 
 
 The name of any party whose existence is esssential to the charge, must be proved in 
 conformity to that laid in the indictment, for a misnomer of him is usually fatal. 1 Stark. 
 Ev. 470. On an indictment for stealing in a dwelling house to the value of £5, the name 
 of the owner of the house must be proved as laid. So, on an indictment for robbing a 
 dwelling house in the day-time, some persons being therein, the name of some person who 
 was in the house at the time must be correctly stated. Rex v. Kelly, Carr. Suppl. 42. The 
 1 Geo. 4, ch. 64, extends only to remedy the misnomer of the defendants, when pleaded in 
 
124 EVIDENCE. 
 
 But there are some cases of variance, where an amendment is not 
 necessary. Upon an indictment , for embezzlement, if the evidence 
 
 abatement. And if such person be described as a certain person to the jurors unknown, 
 and it appear in evidence that his name clearly was known, the prisoner cannot be con- 
 victed. 1 East, P. 0. 651 ; Rex v. Robinson, Holt, N. P. 0. 695 ; Rex v. Walker, 3 Camp. 
 264 ; Rex v. Deakin and Smith, 2 Leach, 863. But if the charge against an accessory is 
 that the principal felony was committed by persons unknown, it is no objection that the same 
 grand jury have found a true bill imputing the principal felony to I. S. Rex v. Bush, Russ. 
 & Ry. 37 2. Where a person is described by name simply, without addition, proof that there 
 are two persons of that name is no variance, for the allegation is still true. Upon an in- 
 dictment for an assault upon Elizabeth Edwards, it appeared that there were two of that 
 name, mother and daughter, and that in fact the assault had been made on the daughter ; 
 but the conviction was held to be good. Rex v. Peace, 3 B. 4 A. 519. The court said: 
 " The question here is, not whether the party has been rightly described, but who the party 
 is who is described in the indictment as having been assaulted." But generally if the father 
 and son bo both named A. B., by A. B , simply the father shall be intended. Wilson v. 
 Stubs, Hob. 330; Lepiotv. Browne, 1 Salk. 1 ; Sweeting v. Fowler, \ Stark, if. P. C. 106; 
 1 Stark. Ev. 4? 2. 
 
 So, where an indictment laid the property of a horse in Joshua Jennings, it was held to 
 be supported by proof of property in Joshua Jennings the younger. Hodgson's case, 1 
 Lewin, 236, Parke, J. ; S. P. Bland's case, ibid., Bolland, B. So, where an indictment for 
 perjury alleged a suit to have been between Peacock and R. Miles, and the proceedings 
 stated the suit to have been between Peacock and R. Miles the elder, it was held no vari- 
 ance. Rex v. Bailey, 1 C. & P. 264, Williams, J., who cited a MS. case, where it was alleged 
 that there was an indictment against A. B. and C. D., at a former time, and on the record 
 beiDg produced, it appeared that it was an indictment against A. B. and C. D. the younger, 
 and Lawrence, J., held it a. fatal variance ; ' on which it was observed, that that must have 
 been on the ground that if a person was named simply, it meant the elder. 
 
 The prosecutor may be described by the name he has assumed, though it is not his right 
 name; thus, where the goods stolen were laid to be the property of Mary Johnson, and the 
 prosecutrix stated that her original name was Mary Davies, but that she had been called 
 and known by the name of Mary Johnson, and not Mary Davies, for the last five years, and 
 had not taken the name of Johnson for any purpose of concealment or of fraud ; the judges, on 
 a case reserved, were of opinion that the time the prosecutrix had been known by the name 
 of Johnson, warranted her being called so in the indictment. Rex v. Norton, Russ. & Ry. 
 510. And so a person is well described by the name by which he is generally known. 
 Thus, where a count for offering a bribe to an officer of the customs, stated his name as 
 Thomas Dabbs, and he proved that his true name was Thomas Tyrrell Dabbs, but that he 
 generally went by the name of Thomas Dabbs, and signed his name Thomas Dabbs, without 
 Tyrrell ; it was held that this was no variance. Attorney-general v. Hawkes, 1 Tyrw. 3, and 
 per Alexander, C. B. : "By the aid of an averment of the identity of Thomas Dabbs and 
 Thomas Tyrrel Dabbs, the defendant might plead an acquittal on this information, by way 
 of auterfois acquit to information for offering a bribe to Thomas Tyrrel Dabbs on this occa- 
 sion. 
 
 So, where an indictment for robbery laid the property in John Hanoox, and it appeared 
 that his name was John Walter Hancox, but that he was generally known by the name of 
 John Hancox; Parke, J., held that this was sufficient. Rex v. Berriman, 5 0. & P. 661 ; 
 
 see Rex v. Sheen, 2 C. & P. 634 ; and see Rex v. , 6 C. & P. 408, where an indictment 
 
 for stealing a whip, the property of Richard Pratt, was held to be sustained by evidence that 
 the prosecutor was generally known by that name, although his proper name was Richard 
 Jeremiah Pratt. And see Williams v. Bryant, 5 M. & W. 477, where the defendant exe- 
 cuted a bond in the name of William Bryant, being known at that time by that name, his 
 
WHAT MUST BE PROVED. 124 — 1 
 
 prove a larceny, the jury may acquit the prisoner of the embezzlement, 
 and find him guilty of simple ' larceny, or of larceny as clerk or ser- 
 
 real name being William Francis Bryant, and the court held that the proof was sufficient 
 upon the plea oinon est factum. 
 
 So, where in an indictment a boy was called Edward Dobson, and he stated that his right 
 name was Dobson, but that most persons who- knew him called him Peach, and that his 
 mother had married two husbands, the first named Peach and the second Dobson, and that 
 he was told by his mother that he was the son of the latter, and that she always used to 
 call him Dobson ; it was held that the evidence that the boy's mother had always called 
 him Dobson, must be taken to be conclusive as to his name, and that, therefore, he was 
 jightly described in the indictment. Rex v. Williams, ! 0. 4 P. 298 ; Williams, J., after 
 consulting Alderson, B. 
 
 But where, on the indictment of Prances Clark, for the murder of" George Lakeman Clark, a 
 base-born infant male child," it appeared in evidence that the deceased child was a bastard 
 son of the prisoner, and that she murdered it, as charged in the indictment, but that the 
 child was christened George Lakeman, being the name of its reputed father, and that it 
 was called George Lakeman, and not by any other name known to the witnesses, and that 
 the prisoner called it George Lakeman ; the judges held that as the child had not obtained 
 his mother's name by reputation, he was improperly called Clark in the indictment, and as 
 there was nothing but the name to identify him in the indictment, the conviction could not 
 be supported. Rex- v. Ckt/rk, Buss. & Ey. C. C. R. 358. 
 
 And so, where an illegitimate child, three weeks old, had been baptised by the name of 
 " Eliza," but no surname was mentioned at the time of baptism, and neither the register, 
 nor any copy of it, was produced at the trial, and an indictment for murder described her as 
 " Eliza Waters," Waters being the name of her mother; it was held, upon a case reserved, 
 that the child had not acquired the name of Waters by reputation, and that the conviction 
 was wrong. Rex v. Waters, R. & M. C. C. R. 457; S. C. 7 C. & P. 250. 
 
 Where, however, an indictment charged the murder of Emma Evans, and it appeared that 
 the deceased was an illegitimate child born in a workhouse, and baptized on the 9th of Sep- 
 temper bythename'of Emma, and drowned on the 11th of the same month, when about six 
 weeks old, and that up to the time of the baptism she was not called by any name, but that 
 from the 9th to the 11th of September she was called Emma Evans, Evans being the 
 mother's name ; it was held that there was sufficient evidence of reputation for the con- 
 sideration of the jury, and that this case was distinguishable from the last, because there 
 was no evidence there that the child was ever called Waters at all. Reg. v. Evans, 8 C. & 
 P. 765; Erskine, J., after consulting Patteson, J. 
 
 And where, on an indictment for the murder of " a certain female child whose name to 
 the jurors was unknown," it appeared that the child had not been baptised, but the prisoner 
 had said she should like it to be called " Mary Ann," and had called it "her Mary Ann " at 
 one time, and "Little Mary" at another; the father was a. baptist, and the child was a 
 bastard, and twelve days old ; and, upon a case reserved, it was held that the child had not 
 gained a name by reputation-, and therefore the indictment was right. Rex v. Smith, R. & 
 M. C. C. R. 402; S. C. 6 0. & P. 151. 
 
 Where an indictment for larceny laid the goods stolen to be the property of Victora Baro- 
 ness Turkheim, and the prosecutrix proved that Baroness Turkheim was her title only, and 
 no part of her proper name, but that she was not only reputed to possess that title, but did 
 actually possess it in right of an estate inherited from her father, and that she had constantly 
 and uniformly acted in and been known by that appellation, but that her name, without 
 her title, was Selina Victoria ; the judges held the description sufficient. SulVs case, 2 
 Leach, 861. An indictment for robbery on an unmarried woman in her maiden name is 
 good, although she marry before the indictment is found. Rex v. Turner, 1 Leach, 536. 
 Where an indictment charged the prisoner with the manslaughter of Mark Robinson, and a 
 witness stated that the deceased stayed three days and nights at his inn, and that he asked 
 
124 2 EVIDENCE. 
 
 vant;(a) or upon an indictment for larceny, if the evidence prove an em- 
 bezzlement, the jury may acquit the defendant of the larceny, and find 
 him guilty of the embezzlement ;(b) upon an indictment for obtaining 
 goods or money under false pretences, if the evidence prove a larceny, 
 the defendant notwithstanding may be convicted of false pretences ;(c) 
 
 (a) See 14 & 15 Vict. c. 100, s. 13. 
 
 (6) Id. s. 11. 
 
 (c) See 7 & 8 G. 4, o. 29, a. 53. 
 
 the deceased Ms name, and that letters came directed in that name, which letters were 
 delivered to the deceased, and received by him ; Patteson, J., held that the witness might 
 be asked what name the deceased told him, as it was evidence to show the name by which 
 he usually went. Sex v. Timmins, 7 0. & P. 499. 
 
 But if the name proved be idem sonans with that in the indictment, and different in spel- 
 ling only, the variance will be immaterial. Thus, Segrave for Seagrave is no variance, 
 ( Williams v. Ogle, 2 Stra. 889,) nor is Benedetto for Beniditto. Abithol v. Beniditto, 2 
 Taunt. 401. So, on an indictment for committing an offence on one John Whyneard, it 
 appeared that his name was spelt "Winyard, but it was pronounced Winnyard ; and the 
 judges, on a case reserved, held that the prisoner had been rightly convicted. Bex v. Fos- 
 ter, Russ. & Ry. 412. But an indictment charging the prisoner with having personated 
 " Peter M'Cann is not supported by evidence that he personated " Peter M'Carn." Sex v. 
 Tannet, Russ. & Ry. 351. So, it has been decided that "Shakespeare" cannot be con- 
 sidered as idem sonans with " Shakepear." Sex v. Shakespeare, 10 East, 83. So Tarbart 
 for Tabart is a fatal variance in a bail piece. Bingham v. Dickie, 5 Taunt. 14. 
 
 "Where the indictment alleged that the defendant committed adultery with one L. "W. and 
 it appeared that there were two individuals of that name in the town, father and son, and 
 that the latter used the addition of junior to his name it was presumed that the father was 
 the particeps criminis, and evidence to show adultery with the son L. W. junior, was not 
 admitted. State v. Vittum, 9 New Hamp. Rep. 519. On an indictment charging the steal- 
 ing of the horse of Stephen Harris, the evidence proved that the man whose horse had been 
 stolen was named Harrison. The witness stated that his name of baptism was Harrison, 
 though his neighbors sometimes called him Harris; it was held that the owner's name was 
 sufficiently described. State v. France, 1 Tenn. Rep. 434. Where the indictment charged 
 the forgery of an order on " the cashier of the corporation of the President and directors of 
 the Bank of the United States," and the order was drawn on "the cashier of the Bank of 
 the United States," it was held that this was not a fatal variance. U. S. v. Kinman, 1 Bald. 
 Rep. 292. 
 
 Keen for Keene, Deadema for Diadema, Autron for Autrum or Autrium, form no variance. 
 Com. v. Bttey, Thach. C. 0. 67 ; State v. Patterson, 2 Iredell, 346 ; Stale v. Scurry, 3 Rich- 
 ard, 18. Burrall and Burrill, Prison and Brisson, Donnel and Donald, Ratharine and Catharine, 
 are not the same in sound. Com. v. Gillespie, 1 Serg. & Rawle, Rep. 469 ; Add. Rep. 141 ; 
 Donnel v. U. S., 1 Morris, 141 ; Swails v. State, 7 Blackf. 724. 
 
 Many fatal variances have arisen in cases where it is necessary to state a record, deed, or 
 other writing in the indictment, between such statement and the record deed, or writing, 
 when produced in evidence. Where the matter of a written instrument is introduced in 
 pleading by the words "according to the tenor following, "or "of the tenor following," or "in 
 the words and figures following," or "the words and matters following," or in fact any words 
 which imply that a correct recital is intended, any — the slightest — variance between the in- 
 strument set out, and that produced in evidence is fatal. 
 
 A mere literal variance however, whore the omission or addition of a letter does not alter 
 or change a word so as to make it another word, will not be material. See Barb, Or. Law, 
 2d ed. p. 334. 
 
WHAT MUST BE PROVED. 124—3 
 
 upon an indictment for a misdemeanor, if the evidence prove a felony, 
 the defendant shall not on that account be acquitted, unless the court 
 think proper to discharge him from that indictment, and order him to 
 be prosecuted for the felony .;(a) upon an indictment against a principal 
 in the first degree, if the evidence prove him to have been principal in 
 the second degree, — or upon an indictment against him as principal in 
 the second degree, if the evidence prove him to have been principal in 
 the first degree, — he shall be convicted.(S) 
 
 There are also some cases, where the evidence prove only part of the 
 charge laid, and the defendant shall be convicted of that part, and ac- 
 quitted of the residue. Where a man is indicted for murder, he may 
 be found guilty of manslaughter ; — upon an indictment for burglary 
 and larceny, he may be acquitted of the burglary, and found guilty of 
 the larceny ; — upon an indictment for breaking and entering a church, 
 house, shop, or warehouse, and stealing therein, he may be acquitted of 
 the breaking and entering, and convicted of the larceny ; — upon an 
 indictment for stealing from a dwelling-house to the value of five 
 pounds, or some persons therein being put in fear, - the defendant may 
 be convicted of the simple larceny ; — upon an indictment for robbery, 
 the jury may acquit him of the robbery, and convict him .of an as- 
 sault with intent to commit it ;(c) so in all cases of indictments for fel- 
 ony or misdemeanor, if the evidence prove only an attempt to commit 
 it, the defendant may be found guilty df the attempt. (d) [2] 
 
 (a) 14 & 15 Viot. c. 100, s. 12. (c) 14 & 15 Vict. 100, 3, 11. 
 
 (c) Ante, p. 13. (d) Id. s. 9. 
 
 [1] As a general rule, where an accusation includes an offence of an inferior degree, the 
 jury may discharge the defendant of the high crime, and convict him of the less atrocious ; 
 and in such case, it is sufficient if they find a verdict of guilty of the inferior offence, and 
 take no notice of the higher. Of this, the books give numerous instances. Thus on an 
 indictment for rape one may be convicted of assault and battery ; or on the same charge 
 incest; or on an indictment for manslaughter, of assault and battery. Com.v. Drum, 19 
 Pick. 419; Com. v. Goodhue, 2 Metcalf, Rep. 193; Com. v. Rope, 22 Pick. 17; Com. v. 
 Griffin, 2 Pick. 523. In New York it has been determined that under an indictment for 
 procuring an abortion of a quick child, which by the revised statutes is a felony, the prisoner 
 may be convicted though it turn out that the child was not quick, and the offence therefore 
 a mere misdemeanor. People v. Jackson, 3 "Hill, N. T. Rep. 92. On an indictment for assault 
 with intent to kill the defendant may be convicted of assault and battery or assault alone. 
 Stewart v. State of Ohio, 5 Ohio Rep. 242. An indictment under the South Carolina act of 
 1821 for the murder of a slave, includes within it the inferior offence of "killing in sudden 
 heat and passion," to the same extent and for the same reason that murder at common law 
 includes manslaughter ; and therefore, on such an indictment, the prisoner may be convicted 
 of the inferior offence described in the second clause of the same act. State v. Gaffney, 
 Rice, Rep. 431. In Massachusetts in Com. v. Boby, (12 Pick. Rep. 496,) it was held that 
 at common law one charged with a felony could not be convicted of part of the charge unless 
 the part amounted to a felony. But by Rev. Sts. of Mass. ch. 137, sec. 11, on such an 
 indictment, if the jury acquit of part of the charge the defendant may be sentenced for any 
 offence substantially charged by the residue of such indictment. Com. v. Drum, 19 Pick. 
 Rep. 479. 
 
 42 
 
125 EVIDENCE. 
 
 [*125] *2. The Manner of proving the Matter in issue. 
 
 (a) By Confessions. 
 
 Confession to a prosecutor, constable, &c"\ A confession by the defend- 
 ant, if obtained fairly, and without holding out any inducement to him 
 to make it, is nearly the strongest evidence that can be given of the 
 facts stated in such confession, against the party making it; and is 
 abundantly sufficient of itself, without any confirmation, to warrant a 
 verdict against him.(a)[l] 
 
 (a) 2 Hawk. o. 46, ss. 33, 39. 
 
 [1] A free and voluntary confession of guilt made by a prisoner, whether in the course of 
 conversation with private individuals, or under examination before a magistrate, is admissible 
 in evidence as the highest and most satisfactory proof, because it is fairly presumed that no 
 man would make such a confession against himself, if the facts confessed were not true. 
 And the highest authorities have now established, that a confession, if duly made, and sat- 
 isfactorily proved, is sufficient alone to warrant a conviction, without any corroborating evi- 
 dence aliunde. A distinction may be properly made in the weight to be attached to confes- 
 sions. It a confession be reduced into wrrting,. either by the prisoner, or by some one else, 
 and read over to him, and if it be clearly shown that the confession was the spontaneous 
 and voluntary act of the prisoner, such a confession would be entitled to great consideration. 
 But if a confession were proved by a witness, and rested upon his capability of understanding 
 what was said by the prisoner, his competency to remember the very words used, and his 
 fidelity and accuracy in relating them to the jury, it ought to be received with very great 
 caution. For, besides the danger of mistake, from the misapprehension of witnesses, the 
 misuse of words, the failure of the party to express his own meaning, and the infirmity of 
 memory, it should be recollected that the mind of the prisoner himself is oppressed by the 
 calamity of his situation, and that he is often influenced by motives of hope or fear, to make 
 an untrue confession. The zeal, too, which so generally prevails to detect offenders, espe- 
 cially in cases of aggravated guilt, and the strong disposition in the persons engaged in pur- 
 suit of evidence to rely on slight grounds of suspicion, which are exaggerated into sufficient 
 proof, together with the character of persons necessarily called aB witnesses in cases of secret 
 and atrocious crime, all tend to impair the value of this kind of evidence, and sometimes 
 lead to its rejection where, in civil actions, it would have been received. The weighty ob- 
 servation of Mr. J. Foster, is also to be kept in mind, that "this evidence is not in the ordi- 
 nary course of things, to be disproved by that sort of negative evidence by which the proof 
 of plain facts may be and often is confronted." Fost. 243. 
 
 It was held in one case before the general sessions in the city of New Tork, (Radchff, 
 mayor, presiding,) that even a full confession of guilt before the magistrate was insufficient 
 to warrant a conviction, there being no other proof of the corpus delicti, i. e., that a felony 
 had been committed ; which it was said must be shown before the examination could be 
 read. Hope's case, 1 C. H. Eec. 150. But in another and subsequent case in the same court, 
 Dec. 1822, before Riker, recorder, (1 "Wheel. Cr. Cas. 107, 8,) the doctrine in the text is re- 
 cognized ; though it is said to be very desirable that some evidence other than the mere 
 confession should be adduced. And in Hall's case, (Macnally, 40,) it was held that a con- 
 viction may follow on oral evidence of such confession, the magistrate having omitted to 
 commit it to writing ; and that a conviction may follow though it be wholly uncorroborated. 
 
 Confessions by infants are competent as well as those of adults. Sex v. Thornton, Ry. & 
 Mod. Cr. Cas. 27. "Ho who is a rational and moral agent, and can merit the infliction of 
 legal sanctions, must bo able to detail his motives and acts. If, therefore, the prisoner be 
 of an ago to bo punished, he was of an age to confess his guilt." Per Southard, J., in Aaron's 
 
CONFESSION. 125—1 
 
 But it is only evidence against the party making it, and not against 
 others,(a) except perhaps in treason and conspiracy, in cases where the 
 
 (a) 2 Hawk. c. 46, s. 34. 
 
 case, 1 South. 246 ; cited 5 Halst. 189 ; 4 Bl. Com. 24; York's case, Fost. 10. And in one 
 case the confessions of a boy under 11, (State v. Aaron, 1 South. 231,) and in another under 
 13 years of age, (State v. Guild, 5 Halst. 163,) were received and acted upon in charges of 
 murder. The latter verdict was sustained' by the confessions being connected with and 
 fortified by circnmstanoes ; (id. ;) but in the former a new trial was granted for want of such 
 ingredient 1 South. 231, 238, 243. As an infant under H is not capable of crime, (per 
 Kirkpatrick, C. J., in State v. Aaron, 1 South. 238,) it follows that his confessions are not 
 receivable. And in all these cases of extra-judicial confession by infants under the age of 
 discretion, it seems desirable, if not essential, that corroborating circumstances should appear. 
 The question of their necessity was much considered in the two cases last cited, as well as 
 their nature, their mode of application, and the cautions' under which they are to be received 
 They are said to be such as serve to strengthen the confession, to render it more probable ; 
 such, in short, as may tend to impress a jury with a belief of its truth. They are distinguished 
 from facts which, independent of the confession, will warrant a conviction ; for then the 
 verdict would stand not upon the confession, but upon those independent circumstances. 
 " To corroborate is to strengthen, to confirm by additional security, to add strength. The 
 testimony of a witness is said to be corroborated when it is shown to correspond with the 
 representation of some other witness, or to comport with some facts otherwise known and 
 established. In this view of the subjeet, the evidence in this cause af&Tds circumstances 
 corroborating in a singular and remarkable manner the confessions which were proved. I 
 shall briefly state them. The prisoner said he went to the house of the deceased, for the 
 purpose of borrowing a gun. It was proved a gun had been kept there, and that the priso- 
 ner knew it. He said she (the deceased) refused him the gun, and accused him of having 
 done mischief to her pig and pigeons. It was proved that sho'had entertained a belief that 
 such mischief had been done by him. He confessed he had struck her with a yoke. The 
 witness who first saw her after the disaster, testified that he found a yoke and blood on it 
 lying near her. The prisoner confessed that as he was going out, after she had refused his 
 request, he saw the yoke oy the door, picked it up, and went back. Johnathan Van Kirk, 
 who resided in the house, testified that when he went out about noon to work, the yoke was 
 by the side of the door. The prisoner stated that she was on the hearth. M'Coy, the first 
 who saw her, found her lying in the corner of the fire place. He stated that she was starch- 
 ing a cap. A cap, says M'Coy, lay on the hearth by the side of her. To Phillip Knowles 
 he related the story, and confessed he struck her a first, second, third and fourth time. M'Coy 
 testified there were four wounds, one on .the top of her head, one on the right temple, one 
 on the right eye, and one on the under-jaw. The minute detail of incidents and the steady 
 uniformity of his relations to a number of persons, are not among the least striking of the 
 circumstances which mark these confessions. One supposed discrepancy only has been 
 pointed out. To one of the witnesses he said, the deceased was sitting by the fire, blowing 
 the fire. To another that she was starching a cap and stooping down on the hearth. No 
 difficulty however, seems to exist in reconciling these representations by supposing that he 
 spoke of different points of time." Per Ewing, C. J. in State v. Guild, 5 Halst, 187. Again, 
 Aaron, a colored boy under twelve years of age, a slave, confessed that he had drowned a 
 child by throwing him into the well. He was seen at play with the child near the well 
 shortly before the child was missed, no other person being with them ; in searching for the 
 child, the prisoner was found up in a cherry tree ; he pretended the child had gone up the 
 road, looked round and called for him ; went to bed at night without his supper ; admitted 
 next morning he saw the child fall into the well; gave no reason why he neglected to tell 
 of it, but quietly: continued his work. "When the child was found and taken out of the well 
 he came up, and seeing the corps lying on the earth, said, " So you have found Stephen." 
 
125 — 2 EVIDENCE. 
 
 confession or declaration of one of the conspirators may amount to an 
 overt act;(a) and except upon indictments against the inhabitants 
 
 (a) See R v. Watson, 2 Stark. 140, 141. 
 
 These were relied on by Mr. Justice Southard, as corroborating circumstances. The State v. 
 Aaron, 1 South. 232, 747. But a' new trial was granted in this case. Kirkpatrick G. J. at 
 p. 240, says, the circumstances were not brought out by the confession. The confession 
 itself was pregnant with no circumstances to give it authority, or in any way to corroborate 
 it. In this, Rozell, J., concurred. 
 
 A confession, at least in a capital case, from the nature of the thing, is a very doubtful 
 species of evidence, and to be received with great caution. It is hardly to be supposed, it is 
 said, that a man perfectly possessed of himself, would make a confession to take away his 
 own life. Tt must generally proceed from a promise or hope of favor, or from a dread of 
 punishment, and in such situations the mind is agitated ; the man may be easily tempted to 
 go further than the truth. Besides, the witness, respecting the confession, may have mis- 
 taken his meaning. State v. Long, 1 Hayw. 455. A remarkable instance of this kind is 
 mentioned by Mr. Dickenson, as singularity illustrative of the propriety of this caution. Two 
 brothers committed a robbery in a dark night to a large amount, and fled. A younger 
 brother, who was innocent, in order to favor their escape, contrived to draw suspicion on 
 himself, and when examined, tacitly admitted his guilt. He was afterwards committed to 
 prison, arid all pursuit of his brothers was discontinued. On the trial he proved an alibi on 
 the clearest and most satisfactory evidence, and was consequently acquitted. In the mean 
 time, the actual felons had safely arrived in America with their plunder. 1 Dick. Just. 460. 
 
 In another case, a Frenchman named Hubert was convicted and executed on a most cir- 
 cumstantial confession of his guilt in having occasioned the great fire in London, '' although," 
 adds the historian, " neither the judges nor any one present believed him guilty, but that he 
 was a poor, distracted wretch, weary of life, and who chose to part with it in that way." 
 Continuation of Lord Clarendon's life, written bybimself, p. 352. 
 
 Matthews relates an instance of a countryman who was convicted, on his own confession, 
 of the murder of a widow, who, two years afterwards, returned to her home, and had never 
 received any injury whatever. Matth. de Prob. o. 1, n. 4. See also the false confession of a 
 man named John Sharpe, for the murder of Miss Catharine Elmes, Ann. Reg. 1833, p. 74. 
 
 An equally singular case in this country is that of two brothers named Booms, who, on 
 being charged with the murder of another, were convicted and sentenced to death, chiefly on 
 their admissions, but were fortunately relieved from execution by the re-appearance of then- 
 alleged victim. N. Am. Review, vol. 10, p. 418 ; 5 Law Reporter, 195 ; 1 Greenleaf on Ev. 
 sec. 214. Subject to the restrictions which are thus suggested, remarks Mr. Greenleaf, 1 
 Ev. sec. 215, however, deliberate confessions, when made advisedly and with a due sense of 
 their meaning, are among the most effectual proofs in the law. Dig. Lib. 42, tit. 2 Confess. ; 
 Van Leenwen's Comm. B. 5, ch. 21, sec. 1 ; Poth. on Obi. (by Evans,) App. Numb, xvi.sec. 
 13 ; 1 Gilb. Evid. by Lofft, 216 ; 4 Hawk. P. C. 425, b. 2, ch. 46, sec. 35 ; Mortimer v. Mor- 
 timer, 2 Hagg. Con. R. 315 ; Harris v. Harris, 2 Hagg. Eccle. 409. Their value depends 
 on the supposition, that they are deliberate and voluntary, and on the presumption that a 
 rational being will not make admissions prejudicial to his interest and safety, unless when 
 urged by the promptings of truth and conscience. Such confessions, so made by a prisoner, 
 to any person at any moment of time, and at any place, subsequent to the perpetration of 
 the crime, and previous to his examination before the magistrate, are at common law receiv- 
 ed as evidence, as among the proofs of guilt. Lambe's case, 2 Leaoh. Or. Cas. 625, 629, per 
 Grose, J.; Warielcshall's case, 1 Leach, Cr. Cas. 298; M'Nally's Evidence, 42,. 47. Confes- 
 sions, too, like admissions, may be inferred from the conduct of the prisoner, and from his 
 silent acquiescence in the statements of others, respecting him, and made in his presence, 
 provided they were not made under circumstances which prevented him from replying to 
 them. See also Rex v. Bartlet, 7 C. & P. 832 ; Sex v. Smithe, 6 C. & P. 332 ; Rex v. Applehy, 
 
CONFESSION. 125—3 
 
 of a parish or township, &c, where the admission of one is deemed evi- 
 dence, though perhaps slight, against the parish or township gener- 
 ally. (a) [2] Even where one of three prisoners, on examination before a 
 
 (d) See R v. Whifby Lower, 1 M. & S. 636 ; B. v. Eardwick, 11 Bast, 5T8. 
 
 3 Star. E. 33 ; Joy on Confessions, &c, 11, 80. The degree of credit due to them is to be 
 estimated by the jury, under the circumstances of the case. 
 
 To the same effect is a case in Illinois, in 1841, where three brothers named Trailor, were 
 arrested on the charge of murdering a man named Hsher, who, when last seen, had been in 
 their company. Strong circumstantial evidence was produced Showing the traces of a death 
 struggle in the spot where the homicide was alleged to have been committed ; and the case 
 was fortified by expresions alleged to have been subsequently used by one of the brothers 
 as to his having become legatee of the deceased's property. The examinations had scarcely 
 finished, before one of the three defendants made a confession, detailing circumstantially the 
 whole transaction, showing the previous combination, and ending with a direct statement, 
 under oath, of the homicide. To the amazement of the whole country, however, the deceas- 
 ed made his appearance in just time enough to intercept a conviction ; and the only way of 
 accounting for the confession whieh had been produced, was that the party who made it, in 
 the desperation of impending conviction, took this method of cutting short suspense. See 4 
 West. Law Journal, 25. 
 
 Mr. Abercrombie relates an instance where a q'msi confession was made by an innocent 
 person, whieh shows also that it may be not impracticable for an artful man to so operate 
 upon the nervous sensibility of another less intelligent, as to lead the latter to declarations 
 or conduct which would produce a strong presumption of guilt. 
 
 During a late investigation in the north of Scotland, respecting an atrocious murder com- 
 mitted on a pedlar, a man came forward voluntarily and declared that he had had a dream, 
 in which there was represented to him a house, and a voice directed him to a spot near the 
 -house, in which there was buried the pack, or box for small articles of merchandise, of the 
 murdered person. On search being made, the pack was found, not precisely on the spot 
 whieh he had mentioned but very near it. The first impression on the minds of the public 
 authorities was that he was either the murderer or an accomplice in the crime. But the 
 individual accused was soon after clearly convicted ; and before his execution he fully con- 
 fessed his crime, and in the strongest manner exculpated the dreamer from any participation 
 in, or knowledge of the murder. The only fact that could be discovered calculated to throw 
 any light upon the occurrence was, that immediately after the murder the dreamer and the 
 murderer had been together in a state of almost constant intoxication, for several days ; and 
 it is supposed that the latter might have allowed statements to escape from him which had 
 been recalled to the other in his dream, though he had no remembrance of them in his 
 sober hours. Abercrombie on the Intel. Powers, 12 ed. 222. Wharton's Cr. Law, 252, 523, 
 254. 
 
 In the United States there is a growing unwillingness to rest convictions on confessions 
 alone. It has been held in several of the states that the confessions of a party not made in 
 open court, or on examination before a magistrate, but to an individual, uncorroborated by 
 circumstances and without proof aliunde that a crime has been committed will not justify a 
 conviction. People v. Eennessy, 15 Wendell 14? ; People v. Badgely, 1 Wendell 53 ; State v. 
 Fields, Peck. Rep. 140; State v. Gardiner, Wright's Rep. 392. 
 
 [2] In cases of conspiracy, riot or other crime perpetrated by several persons, when once 
 the conspiracy or combination is established, the act or declaration of one conspirator, or ac- 
 complice, in the prosecution of the enterprise, is considered the act of all, and is evidence 
 against all. U. S. v. Ear-man, 1 Baldwin, 292; Martin v. Com., 11 Leigh, 745; U. S. v. 
 Goodwin, 12 Wheaton, 469;. State v. Soper, 13 Maine, 293. 
 
 When, however, the common enterprise is at an end, whether by accomplishment or aban- 
 donment, it is not material, no one is permitted by any subsequent act or declaration of his 
 
125—4 EVIDENCE. 
 
 magistrate, stated that he and another of the prisoners committed the 
 felony, and the other who was present did not deny it : Holroyd, J., 
 held that this confession could not be given in evidence against the 
 other prisoner, and he said that it had so been decided.(a)[3] And 
 where on the trial of two, a confession of one of them, affecting also 
 the other, is to be given in evidence, the judge, if the confession be in 
 writing, usually orders the officer, whose duty it is to read it, to read it 
 in such a way as not to disclose the name of the other defendant ; or if 
 the confession be not in writing, many of the judges give a similar cau- 
 tion to the witness who proves it. This, however, is entirely discre- 
 tionary. 
 
 A confession to be given in evidence, must be of the offence charged 
 in the indictment, or of some matter relating to it : you cannot give in 
 evidence any confession or declaration of the prisoner of his having 
 committed similar crimes upon other occasions, or of his general dispo- 
 sition to commit them.(&) But where there were two indictments 
 against a prisoner, one for receiving tin, and the other for stealing iron, 
 — on the trial for re.eiving the tin, it was holden that the whole of a 
 statement made by him might be given in evidence, although only part 
 of it related to the tin, the rest relating to the iron.(c) And on the 
 
 (a) R v. Appleby, et al. 3 Stark. 33 ; S. P. 1 Car. & K. 221. 
 R. v. Swinnerton et al Car. & M. 593. (c) R. v. Mansfield, Car. & M. 140. 
 
 (6) R. v. Cote, 1 Ph. Ev. 170 ; R. v. Batter, 
 
 own to affect the others. His confession, therefore, subsequently made, even though by the 
 plea of guilty, is not admissible in evidence, as such, against any but himself. Under no 
 circumstances can the most solemn admission made by him on trial be evidence against his 
 accomplices. Thus, on an indictment against A., for concealing a horse-thief, knowing him 
 to be such, it is not competent- for the prosecutor to give evidence of what the alleged horse- 
 thief subsequently confessed in the presence of A., to establish the fact that a horse was 
 stolen. Rex v. Tv/rner, 1 Mood. Cr. Cas. 347 ; Rex v. Appleby, 3 Stark. 33 ; and see Melen 
 v. Andrews, 1 M. & W. 336, per Parke, J. ; State v. Roll, 1 Hawks, 442 ; see State v. Hanney, 
 2 Dev. & Bat. 390 ; Kirby v. State, 1 Terger, 259 ; Morrison v. State, 5 Ohio Rep. 439 ; Lowe 
 v. Boteler, 4 Har. & MoHen. 349. 
 
 [3] The declarations of a third person, made in the presence of a defendant, and assented 
 to by him, are admissible evidence against him, and stand on an equal footing with admis- 
 sions by himself. Com. v. Call, 21 Pick. Rep. 515 ; though see Norman v. State, 1 Sm. & 
 Marsh. 562. But where the declarations were made in the presence of a party who was 
 partially intoxicated, and not contradicted by him, it is a question for the jury to ascertain 
 whether the party was too much intoxicated to understand the statement when made. 
 State v. Perkins, 3 Hawkes, 37 1. The assent of the party is presumed if nothing be said 
 by him inconsistent with that presumption. lb. But it is a question for the jury whether 
 the defendant's apparent assent in such case, arose from inattention or ignorance. State v. 
 Perkins, 3 Hawkes Rep. 377. The silence of a prisoner when accused of larceny, or when 
 the stolen property is identified is not to be construed into an admission of the larceny, or 
 the ownership of the property. Com. v. Kenney, 12 Met. 235. 
 
 Where a man at full liberty to speak, and, not in the course of a judicial inquiry, is 
 charged with a crime and remains silent, that is, makes no denial of the accusation by word 
 or gesturo, his silence is ix, circumstance which may bo left to the jury. State v. Swink, 2 
 Dev. & Batt. 9; State v. Stone, Rice Rep. 187. 
 
CONFESSION. 125 — 4 
 
 other hand, the prisoner may insist on the whole of his confession 
 being stated/ for the part omitted may qualify or control the meaning of 
 the part stated.(a)[4] 
 
 (a) 2 Hawk, c 46, s. 42. 
 
 [4] That the confessions of a criminal shall bo taken together, in the ordinary sense of that 
 phrase, is extremely well settled. Per M'Kean, C. J. at the close of his charge, in Respub- 
 licav. MCarty, a case of treason, 2 Dall. 86. This has been expressly extended to the 
 examination before the magistrate. Hick's case, 1 C. H. Eec. 66. People v. Weeks, N. T. 
 Gen. Ses. Oct, 1818, Jud. Repos. 138. People v. Johnson, TS. Y. Oyer k Term., Edwards, C, 
 Judge presiding, 2 Wheel. Cr. Cas. 311. Though it was said in another case, that the dis^ 
 trict attorney might read such part of the written examination as he pleased, and the prisO' 
 ner could not demand to have the whole read. People v. Jordme, N. T. Gen. Ses. Oct. 1818. 
 Jud. Repos. 107, 8. Quere. The contrary was declared to be well settled in People v. 
 Johnson, supra. 
 
 But per Ch. J. M'Kean, at the close of his charge in Sespublica v. M 1 Carty, supra, "Though 
 the whole confession must be considered together, yet the jury may, unquestionably, on this 
 as on every other point of evidence, believe onepart and disregard the other." To what 
 extent this may be done, will appear by the following cases. The prisoner was indicted for 
 secreting counterfeit money. He had confessed that it was true he had counterfeit money, 
 but he had received it from a good man on New River, but would not name the person, and 
 that he had destroyed nine of the dollars. Afterwards, while drunk, he said he was a coun- 
 terfeiter, or was accused of passing counterfeit money :■ while the witnesses did not agree ; 
 but they agreed that he said he had counterfeit money, and would pass as much as he pleased 
 Afterwards he said he had it from.one Hart of New River ; afterwards that he 'had it from 
 a good man, had never attempted to pass it, and would never pass any. He showed thirteen 
 dollars, and threw it into a mud hole. The court charged that confessions made at the same 
 time were all to be taken together, and the jury was to draw such inferences from them as 
 the truth of the case warranted, that they were not bound to credit the whole. On error 
 upon a bill of exceptions, it was held that the charge was too unqualified, that no part of 
 the confession could be rejected; unless it was proved to be untrue ; that the jury could not 
 arbitrarily reject that part which went in discharge of the prisoner, and go upon that part 
 only which criminated him. Tipton v. The State, Peck's Rep. 308. And see infra, Sex v. 
 Jones, and Rex v. Biggins. On trial of an indictment for larceny, the theft was proved, and 
 on examination, the prisoner stated that he had the property in his possession, but denied 
 that he had stolen it. The two sitting aldermen (the mayor dissenting) held this prima facie 
 sufficient, and that the prisoner should be put to account for the possession. The mayor told 
 the jury that in his opinion, the whole case resting in the prisoner's confession, that must be 
 taken together, and did not make out a case. Verdict not guilty. People v. Weeks, N. T. 
 Gen. Sess., Oct. term, 1818, Jud. Repos'y. 138. 
 
 If a prisoner charged with murder, say in his confession, which is read in evidence against 
 him, that he was present at the murder, but took no part in the commission of it, this is evi- 
 dence for him as well as against him ; but the judge will not direct an acquittal, as the jury 
 may believe one part of the confession and disbelieve another. However, if it is meant to be 
 charged that the prisoner did more than is stated in the confession, there ought to be some 
 evidence to show that. Rex v. Cfewas, 4 Oar. & Payne, 221. 
 
 On the trial of a larceny of a ram, proved to have been stolen and traced to the prisoner's 
 house, the carcass being found concealed in his bed, where he was himself; it came out also, 
 in the evidence for the prosecution, that he there said his brother had bought the carcass. 
 Parke J. told the jury they were not bound to take the exculpatory part of the confession 
 as true merely because it was given in evidence ; but should say looking at the whole case, 
 whether they thought the prisoner's statement eonsistent with the other evidence. Sex v. 
 'oe, 4 Carr. & Payne, 39T. 
 
125 5 EVIDENCE. 
 
 Also, a confession to be given in evidence, must not have 
 [*126] been *upon any examination upon oath: if upon taking the 
 examination of a prisoner before a magistrate, the prisoner be 
 examined upon oath, his examination cannot afterwards be read against 
 him at the trial.(a)[l] But where a prisoner was thus sworn by mis- 
 take, it being supposed that he was a witness, and, upon the mistake 
 being discovered, the magistrate ordered the deposition to be destroyed, 
 cautioned the party, and then took his examination; Garrow, B., held 
 this latter examination to be receivable in evidence.(6) Where a state- 
 ment made by a prisoner upon oath, at a time "when he was not under 
 any suspicion, was tendered in evidence, Vaughan, B., held it to be ad- 
 missible.^) But in another case, upon a trial for administering poison, 
 where it appeared that the prisoner and several other persons were ex- 
 amined upon oath before a magistrate upon the subject, no specific 
 charge being at that time made against any person, but in the result the 
 prisoner was committed for the offence: Grurney, B., refused to receive 
 in evidence what the prisoner stated upon that occasion; the above case 
 of B. v. Tubby, was cited, and he admitted he was disposed to agree 
 with that decision, and mentioned a case of H. v. Walker, for forgery 
 of a will, tried at the Old Bailey, where the prisoner's affidavit in the 
 Ecclesiastical Court, was read in evidence against him ; but he distin- 
 guished R. v. Tubby, from the present case, the examination in this case 
 
 (a) 2 Hawk. o. 46, s. 31 ; and see B. Sam- (I) R. v. Well, 4 Car. & P. 564. 
 ays et al. Car. & M. 345. (c) R v. Tully, 5 Car. St, P. 530. 
 
 How far a declaration made by a prisoner shall be received in his own favor, on the ground 
 that the prosecution have used it against him, may be gathered from the following cases, in 
 connection with which see Tipton v. The State, supra. On trial of an indictment for child- 
 murder, the prosecution proved by some witnesses that the prisoner confessed she cut the 
 child's throat, and others said she declared it was still-born. Her counsel insisted on an 
 acquittal being directed, and cited a case before Garrow, B. in which, on trial for larceny, in 
 addition to the prisoner's possession of the goods stolen, his statement before the magistrate 
 was put in, that he had bought the goods ; upon which an acquittal was directed. Bosan- 
 quet, Serjt. said he should hold the same thing in such a case. If a prosecutor uses the 
 prisoner's declarations he must take the whole together ; and if there, be no other evidence 
 incompatible with it, the declaration so adduced must be taken as true. But if, after the 
 whole of .the statement of the prisoner is given in evidence, the prosecutor is in a situation 
 to contradict any part of it, .he is at liberty to do so ; and then, the statement of the prisoner, 
 and the whole of the other evidence, must be left to the jury, precisely as in any other ease 
 where one part of the evidence is contradictory to another. And he took that course with 
 this case. Rex v. Jones, 2 Carr. & Payne, 629. A case precisely like the one decided by 
 Garrow, B. came before Parke, J. The prisoner was proved to have possessed and sold the 
 article stolen shortly after the felony committed ; and the prosecutor proved his examination, 
 wherein he said the article had been honestly bought and paid for. Parke, J. said the 
 declaration thus became evidence for the prisoner ; but he put it to the jury whether they 
 would believe it ; and they found him guilty. Rex v. Biggins, 3 Carr. & Payne, 603. 
 
 [1] 2 N. Y. Rev. St. 108, sec. 14. 
 
CONFESSION. 125—6 
 
 being taken at the time the prisoner was committecL(a) Another dis- 
 tinction, perhaps, might with propriety be taken, namely, between a 
 case where the oath is merely voluntary, as the affidavit in Walker's 
 case above mentioned, and where the party is in strictness bound upon 
 his oath tospeak the whole truth, as in an. examination before a mag- 
 istrate, or the like. [2] 
 
 (&) Without inducement. 
 
 If any inducement, by promise of favor or by threat, be held out to 
 the prisoner, — as by telling him that he had better tell all he knew, (b) 
 or that he had better tell where he had got the property, (c) " I will for- 
 give you if you tell the truth,"(c£) "you had better split, and not suffer 
 for all of them, "(e) " it is of no use for you to deny it, for there are the 
 man and the boy who will swear they saw you do. it," (g) "it would 
 have been better if you had told at first,"(/i) "that unfortunate watch 
 has been found, and if you do not tell me who your partner was, I will 
 commit you to prison as soon as we get to Newcastle, "(i) — or 
 the like: any confession the prisoner may have'been *thereby [*127] 
 induced to make, cannot be given in evidence against him. (&) 
 And where a female servant was indicted for attempting to set fire to 
 
 (a) B. v. Lewis, 6 Car. & P. 161. , (e) B. v. Thomas, 6 Car. & P. 353. 
 
 (6) B v. Kingston, 4 Car. & P. 38*7, and see (g) B. y.-MiUs, 6 Car. & P. 146. 
 B. v. Garner, 18 Law J. 1 m., 2 Car. & K. Qi) B. v. WaVcley & Clifford, 6 Car. & P. 
 
 920. 175. 
 
 (c) B. v. Dwm, 4 Car. & P. 543. (i) R. v. Parrait, 4 Car. k P. 570. 
 
 (d) B. y. Hewett, Car. & M. 534. (h) 2 Hawk. o. 46, s. 36. 
 
 [2] With respect to the examination of the prisoner himself, it has been observed that the 
 statutes of Philip and Mary were the first warrant given for the examination of a felony by 
 the English law. 4 Bla. Com. 596; Bao. Abr. Evidence, L. Kel. 19; 2 Leach, 558. For, 
 at common law, the -maxim, nemo tenebatur prodere se ipswm, prevailed in its full strictness, 
 and the guilt of an offender was not to be wrung out of himself, but rather to be discovered 
 by other means and other men; and though the statutes just noticed authorize an examina- 
 tion, they are not compulsory on the prisoner to accuse himself. Dick. J. Examination, III. 
 At common law, his voluntary confession was always available in evidence' against him, 
 (Bac. Ab. Evidence, L. ; 1 Leach, 559 ;) and this, even in the case of treason, if made before 
 a magistrate or person having competent authority to take it, and proved by two witnesses. 
 Post. 240, 244; 4 Bla. Com. 357. But there is no mode of extorting such confession or 
 other statement from the prisoner. And, indeed, the examination has been considered 
 rather as a privilege in favor of the party accused, afforded by law for the benefit of an inno- 
 cent man, who perhaps may, oh examination, clear himself from suspicion, and then he will 
 immediately regain his freedom than as any additional peril ; and it is said, that in case of 
 felony, the justice of peace is bound to take his examination. Fortes. 142. If the magis- 
 trate examine the prisoner rather as a witness than a charged offender, the evidence given 
 by him, although no threat or inducement was held out to him, cannot be read against him. 
 Holt. G. N. P. 597. If the examination, previous to committal, purports to have been taken 
 on oath, evidence upofl the trial of the prisoner for felony, is not admissible to show that in 
 fact the examination was not on oath. 1 Stark. 242. 
 
 43 
 
127 EVIDENCE. 
 
 her master's house, and it appeared that the bed furniture and bedding 
 of two rooms had been set on fire, and that a silver spoon and a few 
 other things had afterwards been found in the sucker of the pump ; 
 and the master statedTat the trial, that he said to the prisoner that if 
 she did not tell the truth about the things that were found in the pump, 
 (but saying nothing about the fire,) he would send for the constable : 
 Coltman, J., refused to hear what the prisoner said in answer.(as) So, 
 a reward offered by government for the the discovery of the persons 
 who committed a murder, with a promise of pardon to any but the 
 person who struck the blow, — if it can be proved that it came to the 
 knowledge of the prisoner before he made any statement, will prevent 
 that statement from afterwards being given in evidence against him.(6) 
 But nothing short of a threat, or of a promise of favor with respect 
 to the offence charged against the prisoner, will have this effect. Where 
 a prisoner, on being charged with robbing her mistress, voluntarily, 
 said " I shall confess, for I think it will be best for me," to which her 
 mistress said " I do not know that," but neither sanctioned her hope 
 or checked it : it was holden that a confession made by the prisoner 
 after that, was admissible in evidence.(c) Where a magistrate, before 
 taking a prisoner's statement, said to him " be sure you say nothing 
 but the truth, or it will be taken against you, and may be given in evi- 
 dence against you at your trial," it was holden that a'statement made 
 by the prisoner after that, was admissible in evidence against him.(c?) 
 Where a confession was obtained from a boy of fourteen years of age, 
 by questions put to him by the constable who apprehended him, and 
 at a time when the boy had not had food for nearly a day, a majority 
 of the judges held that the confession was receivable in evidence.(e) 
 So, where a confession was obtained by means of questions from the 
 magistrate, it was holden that it might be read in evidence against the 
 prisoner at his trial ;(g) yet such a mode -of obtaining a confession is 
 not very commendable, and ought to be avoided. Where a man, com- 
 mitted for murder, was visited by the chaplain of the jail, who, in a 
 long and very earnest discourse with him upon the necessity of repen- 
 tance, and of confessing his sins, wrought so much upon the man's mind, 
 that in a subsequent interview with the jailer, the prisoner said that he 
 would tell him all about it ; the jailer told him not to say anything 
 which he wished the magistrates not to know, as it would be his duty 
 
 immediately to tell them of it ; the prisoner said that he wished 
 [*128] *it, and then gave the details of the murder : the judges were 
 
 unanimously of opinion, that this confession was receivable in 
 
 (a) R. v. Hewn, Car. & M. 109. (<Z) R. v. Holmes, 1 Oar. & K. 248. 
 
 (Z>) See R. v. Boswell et al., Car. & M. 584. (e) B. v. Thornton, Ry. & M. 27, 
 
 See R. v. Dmgley et al., infra. \g) R. v. Ellis, By. Si M. N. P. 0. 432. 
 (c)R.v. Warren, 12 Shaw's J. P. 511. 
 
CONFESSION. 128 
 
 evidence.(a) So,_ where a man, committed with others for murder, told 
 the chaplain of the prison that he wished to see a magistrate, and asked 
 if any proclamation had been made, and any offer of pardon ; and the 
 chaplain answered that there had, but the prisoner must understand 
 that he could not hold out to him any inducement to make any state- 
 ment, as it must be his own free and voluntary act; and when the 
 prisoner afterwards saw a magistrate, he told him that no inducement 
 had been holden out to him to confess anything, but that what he was 
 about to say was his own free and voluntary act, and he then made a 
 statement : it was holden by Pollock, C. B., that this was receivable in 
 evidence against the party, upon his subsequent trial with the others 
 for the murder.(6) So, where a boy of ten years of age, after being 
 enjoined by a clergyman to " speak the truth in theface of God," made 
 a disclosure of his guilt to a policeman, it was holden to be admissible 
 in evidence against him upon his trial.(c) Where a constable told a 
 prisoner " if you will tell where the property is, you shall see your 
 wife," Patteson J., held that this was not such an inducement as to ex- 
 clude evidence of what the prisoner said.(c£) So, a statement made by 
 a person as a witness before a committee of the house of commons, and 
 under compulsory process, was received in evidence by Abbot, C. - J,, 
 upon an indictment afterwards preferred against the witness for perju- 
 ry. (e) So, where a prisoner in jail, on a charge of felony, asked the 
 turnkey of the jail to put a letter in the post for him, directed to his 
 father, and the turnkey, instead of putting it into the post, sent it to 
 the prosecutor: Garrow, B., held that the letter was admissible in evi- 
 dence against the prisoner, notwithstanding the manner in which it 
 had been obtained.(^)[l] 
 
 (a) R. v. Gilhcm, Ey. & M. 186. (d) R. v. Lloyd, 6 Oar. & P. 3Q3. 
 
 (6) R. v. Dim/ley et al, 1 Car. & K. 637. (e) R. v. Merceron, 2 Stark. 366. 
 
 (c) R. v. Rtiborough, 11 Shaw's J. P. 280. (g) R. v. Derrington, 2 Car. k P. 418. 
 
 [1] The captain of a vessel said to one of his sailors, suspected of having stolen a watch, 
 " That unfortunate watch has been found, and if you do not tell me wlio your partner was, 
 I will commit you to prison as soon as we get to Newcastle ; you are a damned villain, and 
 the gallows is painted in your face;" on which the sailor confessed. Held not admissible 
 against him. Rex v. Parratt, 4 Carr. & Payne, 570. So, where a man said to an accused 
 boy, if you will confess, you will probably get clear. State v. Guild, 5 Halst. 163, 167-8. 
 So, where^ in the presence of the prosecutor, one stranger told the prisoner if he would 
 confess, being in custody, his confession could not be used against him ; and another stranger 
 told him, that being young, if he would confess, it would be more to his credit. State v. 
 Roberts, 1 Dev. 259. So, where the surgeon said to a girl, who was charged with adminis- 
 tering poison with intent to murder, " Tou are under suspicion of this, and you had better 
 tell all you know." Rex v. Kingston, 4 Carr. & Payne, 387. So where the prosecutor said 
 to the prisoner, on his apprehension, "he only wanted the money, and if the prisoner gave 
 him that, he might go to the devil;" in consequence of which the prisoner said on delivering 
 part that it "was all he had left;" a majority of the judges held such evidence not receivable. 
 Rex y: Jones, C. C. M. & R. 152. S. C. cited, 1 Burn. J. 565. So where on a stolen bank bill 
 being found on the prisoner, the prosecutor observed, " Unless you give a more satisfactory 
 
128 — 1 EVIDENCE. 
 
 But where a threat or promise is thus used, it must appear to have 
 been used by some person concerned in apprehending, examining, or 
 
 account, you sh,all be taken before a magistrate;'' and the prisoner then confessed having 
 stolen the bill; the court were of opinion that this amounted to a threat to prosecute; and 
 therefore the confession was inadmissible. They said he understood that his confession 
 would save him from being taken before a magistrate. Rex v. Thompson, 1 Leaph, 291. 
 While the prisoner was in custody on a charge of burgulary, he said to the officer having 
 him in charge, "If you will give me a glass of gin, I will tell you all about it." The officer gave 
 him two glasses of gin, and he made a confession of his guilt. . But this was held inadmissible. 
 Nor would the court allow a subsequent confession before the magistrate to be read, the 
 manner of the first confession not appearing to him, and he, of course, having taken no pains 
 to remove its influence. Bex v. Sexton, Cor. Best, J. Chetw. Supp. to Burn. J. 103, 6 Petersd. 
 83, S. C. 
 
 But mere advice to tell the truth, after a promise so to do, will not exclude the confession. 
 Thus, where, after the prisoner had offered to confess and tell the truth of a murder, the 
 witness advised her so to do ; and then going out of the house to confess to the witness, a 
 rude voice followed, (in what terms, the case does not state.) The confession was held 
 admissible. But the court said " the evidence of such confessions is liable to a thousand 
 abuses. They are made by persons generally under arrest, in great agitation and distress, 
 when each ray of hope is eagerly caught at, and frequently under the- delusion, though not 
 expressed, that the merit of a disclosure will be productive of personal safety. To disclose 
 the confession is odious as a breach of confidence, which it is at all times. The confession 
 is made in want of advisers, under circumstances of desertion by the world, in chains and 
 degradation, with spirits sunk, fear predominant, hope fluttering around, purpose and views 
 momentarily changing, =.. thousand plans alternating, a, soul tortured with anguish, and 
 difficulties gathering into a multitude. How easy is it for the hearer to take one word for 
 another, or to take a word in a sense not intended by the speaker. And for want of an 
 exact representation of the tone of voice, emphasis, countenance, eye, manner and action of 
 the one who made the confession, how almost impossible is it to make third* persons under- 
 stand the exact state of his mind and meaning. For these reasons such evidence is received 
 with great distrust, , and under apprehensions for the wrong it may do. Its admissibility js 
 made to depend on its being free of the suspicion that it was obtained by any threats of 
 severity, or promises of favor, and of every influence even the minutest." State v. Fields & 
 Webber, Peck's Rep. 140. 
 
 Nor will the confession which follows be excluded even where undue influence is exerted, 
 if it be left in doubt whether it had no kind of effect on the mind of the prisoner. Francis 
 Itnapp having been indicted as principal, with Joseph J. Znapp and G. C. as accessories, 
 and being on trial for the murder of J. W., the prisoner's confessions were offered in evidence. 
 The facts upon which their admissibility arose, were stated by the Rev. H. Coleman, thus : 
 "I went to the prisoners' cell with his brother, N. P. Knapp. N. P. said, 'well Frank, 
 Joseph has determined to make a confession, and we want your consent.' The prisoner said, 
 in effect, he thought it hard, or not fair that Joseph should have the advantage of making 
 the confession, since the thing was done for his benefit; 'I told Joseph, when he proposed 
 it, that it was a silly business, and would only get us into difficulty.' N. P., as I supposed 
 to reconcile Frank to Joseph's confessing, told him that if Joseph was convicted, tbere would 
 be no chance for him ; but if he (Frank) was convicted, he might have some chance for pro- 
 curing a pardon. N. P. then appealed to me, and asked me if I did not think so. I told him 
 I did not know. I was unwilling to hold out any improper encouragement." It was now 
 objected that any further confessions would be inadmissible, on the ground that a hope of 
 pardon was held out; and Wilde and Morton, Js., (dissentiente, Putnam, J.,) were at first of 
 this opinion ; but all the judges at this stage supposed that the counsel for the prosecution 
 intended to prove the prisoner's assent. The counsel then disavowed any such object, and 
 stated that the ulterior testimony would be, that he refused his assent to Joseph's confessing. 
 The court then said, that such being the case, it was obvious that the suggestions made, had 
 
CONFESSION. ' 128—2 
 
 prosecuting the prisoner, or by- the person to whom the confession is 
 made, to have the effect of preventing such confession from being given 
 
 in fact exerted no influence over the prisoner's mind ; and being free from influence, his con- 
 fessions were, of course, equally admissible as if the attempt tad never been made. The 
 witness, Mr. Coleman, then answered that no assent was given or refused, which the court 
 said, left the matter in doubt whether the subsequent confessions were caused by the induce- 
 ment held Out. That it lay with the prisoner to bring his confession within the exception. 
 Commonwealth v. Knapp, 9 Pick. 496, 500 to 510. 
 
 A confession obtained by a promise from one concerned in the prosecution, that the prisoner 
 shall be a state's evidence, is inadmissible. Thorn's case, 4 C. H. Rec. 81, 85, 6. So a con- 
 fession made under a notion derived from a magistrate of being admitted a witness for the 
 crown. Per Lord Mansfield in Bex v. Eudd, 1 LeacH, 115. So of any disclosures made to 
 the authority examining, or to the state's attorney, under such circumstances that the 
 prisoner considered himself a witness/ (The State v. Thompson, Kirby, 345.) or when he ap- 
 plied to the state's attorney to be admitted as a witness ; and this on the ground of policy. 
 The State v. Phelps, id. 282. So semb. of the testimony given by an accomplice received to 
 testify on motion ; on account of the implied promise of pardon. Per Duer, Circ. Judge, 
 People v. Whipple, 9 Cowen's Eep. 707. But in Commonwealth v. Knapp, (10 Pick. 477, 489 
 to 495,) where an accomplice was promised by the attorney general, that if he would testify, 
 he should not be prosecuted, and he promised to testify and made a full disclosure, but after- 
 wards refused to testify, his confession was received as evidence against him. So would be 
 the confessions of a prisoner, while he is persuading any one to use their influence to have 
 him examined against his associates. The State v. Thompson, Kirby, 345. 
 
 To work an exclusion, the influence must have arisen from the assurance of some temporal 
 advantage. Urging and obtaining confessions upon religious considerations will not have 
 that effect. That question was mooted in the following case. The prisoner was suspected 
 of setting fire to an out house. Her mistress pressed her to confess, and told her, among 
 other things, if she would repent and acknowledge her guilt, God would pardon her ; but 
 she concealed from her that she would not forgive her herself. She confessed. The next 
 day another person, in her mistress' sight, though out of her hearing, told her her mistress 
 said she bad confessed, and drew from her a second acknowledgment. Lord Bldon, C. J. (C. 
 P.) allowed the confession in evidence, and the prisoner was convicted. The jury on having 
 ■the confessions offered to them, said they thought the first had been made under a hope of 
 favor here, and the second under the influence of having made the first. On a case reserved 
 the judges held these points were not for the jury; but if Lord Bldon agreed with the jury, 
 which he did, the confessions were not receivable. But many of them thought the expressions 
 not calculated to raise a hope of favor here ; and if not, the confessions were evidence. Bex 
 v. Nate, cited Chetw. Supp. to Burn. J. 101, 6 Petersd. 82. 
 
 This question of religious influence was afterwards directly decided. The prisoner being 
 in custody on a charge of murder, requested the attendance of a chaplain, who had several 
 interviews with him ; and repeatedly urged the importance of his confessing himself to God ; 
 but he was not sure but that be might, at some times have spoken of confession generally, 
 without saying to God. He also urged on the prisoner the importance of making temporal 
 reparation for the injuries he had committed, and satisfying the violated laws of the country. 
 These things were all urged upon religious considerations, and on assurances that such con- 
 fessions, &c. would be of religious benefit, and tend to the prisoner's acceptance with God. 
 The prisoner appeared to be strongly impressed. And he sent for the jailer, and after being 
 admonished by him, that what he said would be used as evidence against him, he confessed 
 the murder. He also confessed to the mayor, after the same admonition from him ; and being 
 warned to say nothing but what was rightf Held, by the 12 judges, except Hullock, B. 
 absent, that the confession was admissible. They assigned no reasons, but the ground 
 evidently was as stated in the marginal note, that "a confession made in consequence of 
 persuasion by a clergyman, not with any view of temporal benefit, is admissible." The 
 counsel for the Crown insisted that if the persuasion would render the confession inadmissible, 
 
1 28-— 8 EVIDENCE. 
 
 in evidence. Thus, where upon a man being apprehended for lar- 
 ceny, several of his neighbors admonished him to tell the truth and 
 consider his family, and he therefore made a confession to the consta- 
 ble : the judges held this confession to be receivable in evidence, be- 
 cause the inducement to confess was not holden out or sanctioned by 
 any person who had any concern in the business.(a) Upon the trial 
 of a girl for the murder of a bastard child, it appeared that a woman 
 who was present when the surgeon was attending her, meh- 
 [*129] tioned that *she had advised her to confess, and the girl then 
 made a confession to the surgeon ; Parke, J. and Hullock, B., 
 held that the confession was receivable in evidence, because the induce- 
 . ment to confess was holden out by a person who had no authority 
 whatever to do so ; if it had been by the constable, prosecutor or the 
 like, it would have been otkerwise.(5) 
 
 But where a married woman was apprehended for felony, and her 
 husband being present told her that if she knew anything about it, to 
 tell the truth : this was holden not to be receivable in evidence, as the 
 inducement, being holden out in the presence of the constable, was the 
 same as if it had been holden out by him.(c) So, where a girl, being 
 apprehended for the murder of her child, was left by the constable in 
 the custody of a woman, who told her she had better tell the truth, 
 otherwise it would lie upon her, and the man would go free ; upon 
 which she made a confession to the woman : Parke and Taunton, J. J, 
 held this confession not receivable, as it was made in consequence of an 
 inducement held out to the prisoner by a person who had her in cus- 
 tody.^) And where the committing magistrate told the prisoner, that 
 if he would make a disclosure, he would do all he could for him, and 
 the prisoner afterwards made a disclosure to the turnkey of the jail : 
 Parke, J., held that it was not receivable in evidence after the promise 
 holden out by the magistrate, more especially as the turnkey had not 
 given any previous caution to the prison'er.(e)[l] 
 
 {a) R. v. Row, E. & Ry. 153. (o) R. y. Laugher, 2 Car. & K. 225. 
 
 (6) R. v. Giblons, 1 Car. & P. 91. And see (d) R. v. Enoch, 4 Car. & P. 539. 
 R. t. Tyler, Id. 129. (e) R. v. Cooper, 5 Car. & P. 535. 
 
 yet the impression was countervailed by the warning from the mayor. The same thing was 
 contended for at the trial, where Littledale, J. presided ; and he refused to put it on that 
 ground, saying any thing the mayor said could not do away the effect which the chaplain had 
 produced on the mind of the prisoner. Rex v. Gilham, Ry. & Mood. Or. Cas. 186 to 206. 
 
 By undue means of obtaining a confession, the law generally alludes to illegal influence. 
 The abstract objection that the confession was made while the prisoner was in jail, or other- 
 wise, confined in a legal way, though for the very crime confessed, has never been recognized 
 as an objection, but expressly denied. Rex v. Derrington, 2 Can - . &, Payne, 418. People v. 
 M'Oottister, before Riker, recorder, 1 Wheel. Cr. Cas. 392. And it was denied, though the 
 prisoner was a boy only 14 years of age, who had been confined without food nearly a whole 
 day. Rex. v. Thornton, By. & Mood. Cr. Cas. 2V. 
 
 [1] The distinction whether the person who seeks to influence the confession held any autho- 
 
CONFESSION. 129 
 
 If, however, after an inducement by threat or promise has been 
 holden out to a prisoner to confess, and, before any confession actually 
 made, the prisoner be undeceived as to the promise or threat, and as- 
 sured that he has nothing to, hope from the one or fear from the other, 
 any confession he makes afterwads will be receivable in evidence. 
 Where a man, committed for murder, was told by a magistrate, that, 
 provided he was not the person who struck the fatal blow, he would 
 use all his endeavors and influence to prevent any ill consequences to 
 him, if he would disclose all he knew of the murder ; and the magis- 
 
 rity, or connection with tne prosecution, has not always been strictly attended to. It has been 
 recently noticed with more particularity than usual in England, and the following cases give 
 the result. The confession of a prisoner to one person is evidence, though induced by another, 
 if that other had no authority.- Thus, where a prisoner had made certain confessions to her 
 attending surgeon ; some time after, a woman present said to her she had better tell all ; on 
 objection, Park, J. and Hullock, B., said that as the surgeon held out inducement, and the 
 woman had no sort of authority, holding no office of constable or any other, nor being prose- 
 cutrix, it must be presumed the confession was free and voluntary. The case would be 
 different, if the inducement had come from any one holding any office or authority. No 
 confession followed the advice of the woman immediately ; but some time after, to another 
 person, the prisoner, without any inducement held out, confesses. The two judges had not 
 the least doubt that the confession was admissible. Sex v. Gibbons, 1 Carr. & Payne, 97. 
 To this case the learned reporter adds, in a note, Sex v. Mardw,ich, before Wood, B , at Not- 
 tingham, 1811, cited also in the text, where the prisoner's confession before a magistrate, 
 made after the constable's wife had told him he had better confess, was held admissible ; 
 which, he adds, could only have been on the ground that the constable's wife was a person 
 having no authority or influence. "I believe," he adds, "no case has decided that a con- 
 fession to a person in no authority, after threat or promise by that person, is admissible in 
 evidence. Sex v. Dunn, infra, aco. And in the subsequent case of Sex v. Tyler & Mnch, 
 (1 Carr. & Payne, 129,) the prisoner Finch being locked up alone in a room, was told by a 
 man that the other prisoner had told all, and he had better do the same to save his neck ; 
 and on this, Finch confessed to the constable. On objection, Hullock B. held, that as the 
 promise (if any) was by a person wholly without authority, the subsequent confession to the 
 constable, who had held out no inducement, must be considered as voluntary, and was there- 
 fore evidence. See MiUigan and Welchman's case, stated post, wherein it was held that a con- 
 fession to a third person, made after the person who arrested the prisoner had obtained a 
 confession by undue influence, might be received, if the person who arrested was absent. 
 Quere. On trial for stealing a hymn book, one Fieldhouse testified that on the prisoner's 
 offering to sell the book to him, he told the prisoner he had better tell where he got it. 
 Bosanquet, J. stopped the witness, and said, "You must not tell what he said." Scott, for 
 the prosecution, said the witness was not a person in any authority. Bosanquet, J. said any 
 person offering an inducement would exclude a confession to that person. If made to ano- 
 ther, it often became a nice question. Sex v. Dimn, 4 Carr. & Payne, 543. 
 
 The prisoner being in custody of constable A., constable B. came in, and A. left, when the 
 prisoner immediately confessed to B. Held that to prevent collusion between constables in 
 such a case, A. should be called to negative all inducements before the confession should be 
 received, as B. did not caution the prisoner not to confess. But it appearing, on further 
 examination, that the prisoner was not then detained as an accused party, but merely as an 
 unwilling witness, the testimony was received without putting the prosecution to call the 
 other constable. Sex v. Swatkms, 4 Carr. & Payne, 548. 
 
 Whether one or more of the jury of inquest before the coroner, taking the accused boy 
 aside and telling him he had better confess the whole truth, shall he considered undue 
 influence? Quere. State v. Aaron, 1 South. 231, 240. 
 
129 — 1 EVIDENCE. 
 
 trate wrote upon the subject to the secretary of state ; but upon learn- 
 ing from him that mercy could not be- extended to the prisoner, he in- 
 formed the prisoner of it ; afterwards the prisoner made a confession 
 before the coroner, but he was previously told by him that any confes- 
 sion or admission he should make would be given in evidence against 
 him at the trial, and that no hope or promise of pardon could be held 
 out to him : Littledale, J., held clearly, that this confession was receiv- 
 able in evidence.(a) So, upon the trial of a girl for administering poi- 
 son, it appeared that she was threatened by her mistress, that, if she did 
 
 not tell all about it that night, a constable should,be sent for 
 [*130] the *next morning, to take her before the magistrates ; and she 
 
 made a statement accordingly, which the judge refused to re- 
 ceive in evidence ; but it appeared, also, that the constable was actually 
 sent for the next morning, and took her into custody, and that whilst 
 on the way to the magistrates, in his custody, she made another confes- 
 sion to him: Bosanquet, J., held this latter confession to be admissible 
 in evidence, for, at the time the prisoner made it, the inducement was 
 at an end.(6) So, where the constables had induced a prisoner to con- 
 fess, by telling him that his companions had " split," and he might as 
 well do so ; but afterwards, upon this appearing before the magistrate 
 who took the examination, he informed the prisoner that his confessing 
 would do him no good, but that he would be committed to prison to 
 take his trial : Denman, C. J., held, that a confession by the prisoner to 
 the magistrate, after this caution, was receivable in evidence. (c)[l] 
 
 ■ (a) R. v. Cleeves, 4 Car. & P. 221. (o) R. v. Howes, 6 Car. & P. 404. See Stat. 
 
 (b) R. v. Richards, 5 Car. & P. 318. li & 12 Viet. o. 42, s. lSipost, pp. 132, 133. 
 
 [1] It is said by Mr.. Justice Buller, that there must he very strong evidence of an explicit 
 warning by a magistrate not to rely on any expected favor, and that it ought most clearly 
 to appear, that the prisoner thoroughly understood such warning, before his subsequent con- 
 fession can be given in evidence. 2 East, P. C. 658. In the following case the warning 
 was not considered sufficient. A confession having been improperly obtained, by giving the 
 prisoner two glasses of gin, the officer to whom it had been made, read it over to the priso- 
 ner before a magistrate ( who told the prisoner that the offence imputed to him affected his 
 life, and that a confession might do him harm. The prisoner said, that what had been read 
 to him was the truth, and signed the papers. Best, J., considered the second confession, as 
 well as the first, inadmissible ; and said, that had the magistrate known that the officer had 
 given the prisoner gin, he would, no doubt, have told the prisoner, that what he had already 
 said could not be given in evidence against him j and that it was for him to consider whether 
 he would make a second confession. If the prisoner had been told this, what he afterwards 
 said would have been evidence against him ; but for want of this information he might think 
 that he could not make his case worse than he had already made it, and under this impression 
 might sign the confession before the magistrate. Sexton's case, Burn. tit. Confessions. So 
 where the committing magistrate told the prisoner, that if he would make a confession, he 
 would do all he could for him, and no confession was then made, but after his committal, the 
 prisoner made a statement to the turnkey, who held out no inducement, and gave no caution ; 
 Parke J., said he thought the evidence ought not to be received after what the committing 
 
CONFESSION. 130 
 
 But even in cases where the confession of a prisoner is not receiva- 
 ble in evidence, on account of it having been obtained by means of 
 
 magistrate had said to the prisoner, more especially as the turnkey had not given any caution. 
 Cooper's case, 5 C. & P. 525. 
 
 A constable having a search warrant found in the prisoner's house the two hams charged 
 in the indictment, and thereupon, in the presence of one of the prosecutors, said to the priso- 
 ner, " You had better tell all about it." The prisoner then made a confession, which, it was 
 admitted, could not be given in evidence. In the afternoon of the same day another of the 
 prosecutors went to the prisoner's house and entered into conversation with her about the 
 hams, when she repeated the confession she had made to the constable in the morning, but 
 no promise or menace was on this occasion held out to her. Taunton X, said that the second 
 confession was not receivable, it being impossible to say, that it was not induced by the 
 promise which the constable made to the prisoner in the morning. MeyneWs case, 2 Lewin, 
 C. C. 122. 
 
 The prisoner, who was indicted for murder, worked in a colliery, and some suspicion having 
 fallen upon him, the overlooker charged him with the murder. The prisoner denied having 
 been near the place. Presently, the overlooker called his attention to certain statements 
 made by his wife and sister, which were inconsistent with his own, and added, that there 
 was no doubt he would be found guilty ; it would be better for him if he would confess. A 
 constable then came in, and said to the overlooker in a tone loud enough for the prisoner to 
 hear, "Robert, do not make him any promises." The prisoner then made a confession. 
 Patteson, J., " That will not do. The constable ought to have done something to remove 
 the impression from the prisoner's mind." The overlooker, in about ten minutes after the 
 above confession, delivered the prisoner to another constable, who stated that when he 
 received the prisoner the overlooker told him (but not in the prisoner's hearing) that the 
 prisoner bad confessed. That he took the prisoner to his house and there said, " I believe 
 Sherington has murdered a man in a brutal manner." That the wife and brother of the pris- 
 oner were there, and they said to the prisoner, " "What made thee go near the cabin ?" 
 That the prisoner in answer made a statement similar in effect to the one he had made before. 
 That he used neither promise nor threat to induce the prisoner to say anything, but did not 
 caution him. That it was not more than five minutes after he received the prisoner into his 
 charge that the prisoner made the statement. That he was not aware that the overlooker 
 had held out any inducement, and that the overlooker was not present when the statement 
 was made. Patteson, J., rejected the second confession, saying, " There ought to be strong 
 evidence to show that the impression, under which the confession was made, was afterwards 
 removed, before the second confession can be received. , I am of opinion in this case, that 
 the prisoner must be considered to have made the second confession under the same influ- 
 ence as he made the first ; the interval of time being too short to allow of the supposition 
 that it was the result of reflection and voluntary determination." Sherington's case, 2 lewin 
 C. 0. 123. A female servant being suspected of stealing money, her mistress on a Monday 
 told her that she would forgive her if she told the truth. On the Tuesday she was taken 
 before a magistrate, and no one appearing against her, was discharged. On the "Wednesday 
 the superintendent of police went with her mistress to the bridewell and told her, in the 
 presence of her mistress, that she "was not bound to say anything unless she liked • and 
 that if she had anything to say her mistress would hear her," but (not knowing that her 
 mistress had promised to forgive her) he did not tell her, that if she made a statement, it 
 might be given in evidence against her. The prisoner then made a statement. Patteson, J. 
 held, that this statement was not receivable in evidence, as the promise of the mistress must 
 be considered as still operating on the prisoner's mind at the time of the statement, but that 
 if the mistress had not been then present, it might have been otherwise. Seweti's case, 1 
 Carr. & M. 534. 
 
 "As the human mind under the pressure of calamity is easily seduced, and liable in the 
 alarm of danger to acknowledge indiscriminately a falsehood or a truth, as different agitations 
 
 44- 
 
130 — 1 EVIDENCE. 
 
 some threat or promise, any discovery made in consequence of it may 
 be proved ;(a) and in such a case, the counsel for the prosecution is 
 
 (a) 2 Hawk. o. 46, s. 38. 
 
 may prevail, a confession whether made upon an official examination or in discourse with 
 private persons, which is obtained from the defendant either by the flattery of hope or by 
 the impressions of fear, however, slightly thee motions may be implanted, is not admissible 
 evidence ; for the law will not suffer a prisoner to be made the deluded instrument of his 
 own conviction," 2 Curw. Hawk. 595, cited from Leach's Hawk, and approved in State v. 
 Aaron, 1 South. 239. And see State v. Fields, stated ante, p. 128—1. 
 
 ■The prisoner was threatened by the prosecutor, that unless he confessed the larceny charged 
 on him, he would be sent to the state prison ; whereupon he eonfessed 7 and repeated the 
 same confession the next day in the police office, in the prosecutor's presence, when the 
 magistrate wrote it down. The case went to the jury without objection; but Radcliff, 
 mayor, charged, that although prima facie a confession made in the police should be pre- 
 sumed to have been taken freely and .voluntarily, yet should the jury believe from the cir- 
 cumstances, that at the time the confession was reduced to writing the mind of the prisoner 
 was under the influence of fear previously excited, it would be their duty to reject such 
 written confession equally with the other. Verdict not guilty. William's case, 1 C. H. 
 Record. 149'. A boy, 12 years and 5 months old, accused of murder, was encouraged to 
 confess by a promise of impunity, "if you will confess, you will probably get clear," by one 
 among several who were interrogating him. His examination was taken the next day 
 before the magistrate, who cautioned him solemnly and repeatedly to tell nothing but the 
 truth, but knew nothing of the previous practices with the boy. He confessed ; but the 
 examination was rejected, on the presumption that the boy's mind was not clear of the pre- 
 vious influence. State v. Guild, 5 Halst. 163, 16?, 8, 118, 9. The justice, after the high 
 constable had arrested the prisoner, told his wife in his presence in the afternoon, that if 
 what she had told him was true, it would be better for the prisoner to confess ; and the 
 next morning, before the committing magistrate, he did confess, though then cautioned by 
 him not to expect any favor ; but the court refused to receive the confession against the 
 prisoner. They said they would presume the influence lasted till the examination. People 
 v. Bdbertson, before Rfker, recorder, N. T. Gen. Sess. Nov. Term. 1822 ; 1 Wheel. Or. Cas. 
 66. A confession made before the police clerk, after a threat to the prisoner by one of the 
 marshals while bringing her to the office, that if she did not tell all she knew, she would be 
 put into the dark room and hanged, was rejected. People v. Rankin, New York 0. and T. 
 before Van Ness, J. 2 "Wheel. Cr. Cas. 468, 9. 
 
 With respect to a police confession, made after a promise by the prosecutix to the prisoner, 
 and before the prisoner's apprehension, the effect of which did not appear to have been , 
 counteracted, the N. V. general sessions say, "the confession before the police officers, we 
 have ever received as good evidence ; although before the prisoner was apprehended, a 
 promise of favor may have been made by persons not attached to that department." Per 
 Curiam, including Radcliff, mayor, in Oharity Jackson's case, 1 C. H. Rec. 28. 
 
 The prisoner was committed for arson, and was visited in the jail by various persons, 
 among whom were the inspectors of the prison ; and various means were used to persuade 
 and terrify him into a confession, A short time after his commitment he made a full and 
 apparently voluntary confession to the mayor; nothing, however, having been done to re- 
 move the influence of previous promises or threats. His confessions were received ; but the 
 jury acquitted him. They were told that they might decide on the credit to be given to the 
 confessions; and that merely cherishing the hope of mercy would not, though the confes- 
 sions were made under such influence, render them inadmissible. Though the prisoner, in 
 this case was acquitted of the arson, he was afterwards indicted, and convicted on the same 
 facts of a misdemeanor. The Commonwealth v. DUhn, 4 DaJl. 116. 
 
 The prisoner, charged with conspiring to obtain money from a bank, was arrested on civil 
 
CONFESSION. ISO— 2 
 
 merely allowed to ask the witness, whether, in consequence of some- 
 thing he heard from the prisoner, he found anything, and where, &c, 
 and the witness in answer can only give evidence of the fact of the dis- 
 covery. In one case, indeed, the judges are reported to have gone 
 further. The case was thus : the prisoner was indicted for stealing a 
 guinea and two bank notes for 51 each ; the prosecutor in his evidence 
 was about to state a confession of the prisoner, but admitting that he 
 had previously told the prisoner that it would be better for him to con- 
 fess, Chambre, J., who tried the case, would not allow the confession to 
 be given in evidence ; but he allowed the prosecutor to prove " that the 
 prisoner brought him a guinea and a 51 bank note, which he gave up 
 to the prosecutor as the guinea and one of the notes had been stolen 
 from him : " and a majority of the judges (Lord Ellenborough, Mans- 
 field, Macdonald, Heath, Grose, Chambre, and Wood,) held that the 
 
 process at the suit of the bank, and remained with the arresting officer several days, at the 
 house of the president of the bank, who promised him favors if he would confess. He did 
 so after a considerable lapse of time from the promise made, and immediately afterwards said 
 the confession was free and voluntary ; yet the court presumed the confession, and every 
 thing which followed, were influenced by the promise ; and said it made no difference whether 
 the confession was made to one having a concern in the administration of justice' or not. 
 Thorn's case, before Colden, mayor, 4 0. H. Rec. 81. 
 
 The prisoner being arrested for a burglary, was told by a stranger, in presence of the pros- 
 ecutor,, that, being in custody, his confession could not be used as evidence against him 
 and another stranger told him that being young, if he would confess, it would be more to 
 his credit. He accordingly confessed ; and two or three days after, there being no immedi 
 ate influence exercised, he made a fuller confession. Both held inadmissible, though corrob 
 orated by circumstances ; as the latter might have been made under the first influence, 
 This shall be presumed to continue till palpably done away. State v. Roberts, 1 Dev. 259. 
 
 But, as intimated by the last case, the presumption of a continuing influence may be re- 
 pelled ; and then a subsequent confession becomes admissible. ( Rex. v. Sexton, 6 Peters. 
 83.) Thus where the prisoner, being arrested by D., was induced to confess by a promise 
 from D., the court would not receivea subsequent confession made to D., or any one m -D.'s 
 presence ; but said that a confession to a third person, D> being absent, would be receivable. 
 Milligan & Welchman's case, before Biker, recorder, N. Y. Gen'l Sessions, 6 C. H. Rec. 69, 
 11, 8. 
 
 Again, an infant under 14 had been wrought upon by assurrances of favor ; " If you will 
 confess, you will probably get clear," to confess a murder, in consequence of which his then 
 confession and the examination before the magistrate were refused as evidence. But, after 
 lying in jail 5 months, and being told by a stranger, and by a magistrate whom he knew, 
 that he must not expect to escape, but must expect death, he made a full and circumstan- 
 tial confession, repeating it to various persons. Held admissible in evidence against him. 
 And the court deny what is said in Stark. Ev. pt. 4, p. 49 : " Where a confession has once 
 been induced by such means, all subsequent admissions of the-same or the like facts must be 
 rejected, for they may have resulted from the same influence," to be law. The court adopt 
 this rule : " Although an original confession may have been obtained by improper means, 
 subsequent confessions of the same, or of like facts may be admitted, if the court believe 
 - from the length of time intervening, from proper warning of the consequences of confession, 
 or from other circumstances, that the delusive hopes or fears under the influence of which 
 the original confession was obtained, were entirely dispelled. State v. Guild, 5 Halst. 163, 
 119 to 181. 
 
130—3 EVIDENCE. 
 
 evidence was properly receivable. (a) On the very same day, the judges 
 appear to have decided another' case, which was thus : — the prisoner 
 was indicted for stealing money, to the amount of li. 8s. ; when he was 
 apprehended, the prosecutor went to him, and asked him what he had 
 done with his money which he had taken out of his pack, saying at 
 the same time "that he only wanted his money, and if the prisoner 
 gave him that, he might go to the "devil if he pleased; the prisoner 
 therefore took lis. 6 1-2& out of his pocket, and said it was all that 
 was left of it : a majority of the judges (Macdonald, Chambre, 
 [*131] Lawrence, LeBlanc, *and Heath,) held, that this was not receiv- 
 able in evidence ; "Wood, Grose, and Mansfield were of a dif- 
 ferent opinion, Lord Ellenborough, dubitante.{b) There is also another, 
 case upon the same subject, decided at a later period; the former cases 
 were decided in 1809, the following case in 1822 : the prisoner was in- 
 dicted for stealing several gowns and other articles; he was induced, by 
 promises of the prosecutor, to confess his guilt, and after that confession 
 he took the officer to a particular house, as the house where he had dis- 
 posed of the property, and pointed out the person there to whom he 
 had delivered it ; that person denied having received it, and the pro- 
 perty was never found : the confession was not admitted in evidence, 
 but the taking of the officer to the house above mentioned was, and the 
 prisoner was convicted ; Bayley, J., who tried the prisoner, entertain- 
 ing a doubt whether the latter evidence was properly receivable, sub- 
 mitted the matter to the judges, who held that it was not, and that the 
 conviction therefore was wrong: that the confession was excluded, be- 
 cause being made under the influence of a promise, it could not be re- 
 lied on ; and the act of the prisoner, under the same influence, not be- 
 ing confirmed by the finding of the property, was open to the same 
 objection; the influence which produced a groundless confession, might 
 also produce a groundless conduct.(c)- The above case of B v. Jones, 
 however, shows that the finding of the property makes no difference. 
 There is no doubt that if the goods in Jenkins's case had been found 
 at the house, the officer might prove that he found them there in con- 
 sequence of something he learned from the prisoner; but whether that 
 would also let in evidence of the prisoner's act in accompanying the 
 officer to the house, is another question. [1] 
 
 (a) R. v. Griffin, R. & Ry. 150 (e) R. v. Jenkins, R. & Ry. 492. 
 
 (b) R v. Jones, R. & Ry. 151. 
 
 [1] Though somo have thought otherwise, the latter oaaes are uniform to the point that a 
 circumstance tending to show guilt may be proved, although it was brought to light by a 
 declaration inadmissible, per se, as having been obtained by improper influence. Holt s N. 
 P Rep. 498, note. Charity Jaclcson's case, 1 C. H. Rec. 28 ; Tucker's case, 5 id. 164; 2 
 Curw. Hawk. 596, cited and approved in State v. Aaron, 1 South. 235. Conceded by Emmet, 
 arg. in Milligan and Welchman's case, 6 0. H. Rec. 69, 78. 
 
CONFESSION. 131 
 
 (c) Before a magistrate. 
 
 A confession made by a party charged with felony [or misdemeanor] 
 on his examination before a magistrate, or before a secretary of state 
 upon a charge of treason, has always been allowed to be given in evi- 
 dence against the defendant upon his trial.(a) And by a recent stat- 
 ute, (6) we have seen,(c) that where a prisoner is brought before a jus- 
 tice of the peace, charged with an indictable offence, — after the exami- 
 nation of the witnesses on the part of the prosecution has been com- 
 pleted, the justice, or one of the justices, by or before whom such 
 examination shall have been so completed, shall read or cause to be 
 read to the accused the depositions taken against him, and shall say 
 to him these words, or words to the like effect : " Having heard the 
 
 (a) 2 Hawk. o. 46, ss. 31, 32. (c) Ante, p. 42. 
 
 (6) U & 12 Vict c. 42, s. 18. 
 
 Though, the fact or circumstance discovered in consequence of a disclosure obtained by 
 improper influence, be admissible as an independent fact, disconnected with the disclosure, 
 yet there are very respectable authorities which deny that the disclosure itself may be shown, 
 in connection with it, or be in any way coupled with it or explained by it. 2 Curw. Hawk. 
 595, cited and approved in State v. Aaron, 1 South. 235 ; Charity Jackson's case, 1 0. H. 
 Rec. 28 ; Milligan and Welchman's case, 6 C. H. Rec. 69, 11, 8, semb; State v. Eoberts, 1 
 Dev. 259. Tet there is a strong current. of authority running with the text that both the 
 disclosure and the fact or circumstance connected with it, and going to its corroboration, 
 shall also be received in evidence, and they go to the jury with their joint force. This was so 
 held where a boy, being threatened, admitted that he stole the prosecutor's bearskin and 
 concealed it in the oven, where it was found. Stage's case 5 C. H. Rec. Ill, 8 before Colden, 
 mayor. And similar ground was taken by the same learned judge, charging the jury in 
 Tucker's case, 5 id. 164, 166. 
 
 On trial for murder, it appeared that two men met the prisoner and he produced some 
 money of the deceased. They then charged him with the crime and beat him because he 
 denied it. They tied him and ordered him to produce the deceased's money. He then led 
 them to a swamp and showed the residue ; acknowledged the murder and the manner of 
 it : viz. striking on the left side with a club, as the deceased rode along the road ; said he 
 dragged the body out of the road, and left the club lying.by it ; covered the body with brush 
 where the old road formerly ran, about 10 or 12 yards from the present road. Some time 
 afterwards, about 4 miles distant, he pointed out a log, not far from the road, as containing 
 the deceased's saddle-bags. All these circumstances were proved to be true, and the de- 
 ceased's clothes were found with the bags. It was objected that the prisoner's confession, 
 being extorted, could not be received; that the circumstances showed his knowledge, but 
 bis confession alone showed his commission of the crime. But the court said a confession, 
 though extorted, which relates a number of circumstances (established by other proof) with 
 which the prisoner could not well be acquainted but as a perpetrator of the crime, is admis- 
 sible, and may go to the jury. State v. Moore, 1 Hayw. 482. Iu The State v. Jenkins, 2 
 Tyl. 311,) it was said a confession is evidence though extorted, but the jury are to determine 
 its weight : and if extorted or obtained by promises, it should be disregarded, unless sup- 
 ported by corroborating facts. Where a fact has been ascertained, e. g. the finding of a 
 weapon, in consequence of a prisoner's confession improperly obtained, as by encouragement 
 to hope for a pardon, yet such fact may be shown ; and also that it was ascertained in con- 
 sequence of such confession, though without such ascertainment, the confsssion would have 
 been inadmissible. Commonwealth v. Knapp, 9 Pick. Rep. 496, 511. 
 
131—1 EVIDENCE. 
 
 evidence, do you wish to say anything in answer to the charge ? You 
 are not obliged to say anything unless you desire to do so, 
 [*132] but whatever you say will be taken down in *writmg, and 
 may be given in evidence against you on your trial;" and 
 whatever the prisoner shall then say in answer thereto, shall be taken 
 down in writing, and read over to him, and shall be signed by the .said 
 justice or justices, and kept with the depositions of the witnesses, and 
 shall be transmitted with them to the proper officer of the court where the 
 defendent is to be tried ; and afterwards, upon his trial, the same may, 
 if necessary, be given in evidence' against him, without further proof 
 thereof, unless it shall be proved that the justice. or justices purporting 
 to sign the same, did not in fact sign the same.(a) Such is the humane 
 provision of the English law, to prevent a prisoner from committing 
 himself, by any unadvised admission, which otherwise, in his confusion 
 and agitation arising from the proceedings against him, he might make 
 without calculating on its consequence. It is in the true spirit of fair- 
 ness towards the prisoner, which distinguishes the administration of 
 criminal justice in this country, from its administration in any other 
 country in Europe.[l] 
 
 (a) 11 & 12 Vict. o. 42, s. IS. 
 
 [1] The following is the statute of New York on this subject. By pt. 4, eh. 2, tit. 2, § 
 12, persons arrested under a warrant issued for any oifenee, are to be brought before a ma- 
 gistrate ; a proper return on the warrant is to be endorsed and signed, and the warrant 
 delivered to the magistrate. By § 13, the magistrate is then to examine the complainant and 
 witnesses on oath in the prisoner's presence. 
 
 By § 14. " The magistrate shall then proceed to examine the prisoner in relation to the 
 offence charged. Such examination shall not be on oalh ; and before it is commenced, the 
 prisoner shall be informed of the charge made against him and shall be allowed a reasonable 
 time to send for and advise with counsel. If desired by the person arrested, his counsel niay 
 be present during the examination of the complainant and the witnesses on the part of the 
 prosecution, and during the examination of the prisoner."" 
 
 By § 15, "At the commencement of the examination, the prisoner shall be informed by 
 the magistrate that he is at liberty to refuse to answer any question that may be pat to 
 
 him." 
 
 § 16 " The answer of the prisoner to the several interrogatories shall be reduced to wri- 
 ting by the magistrate, or under his direction. They shall be read to the prisoner, who may 
 correct or add to them ; and when made conformable to what he declares is the truth, shall 
 bo certified and signed by the magistrate." 
 
 Under the Stat, of Phil, and Mary, it does not appear to be necessary that the magistrate 
 caution the prisoner or warn him of the effects of his examination as evidence, (Macnally, 
 38,) or that he is not bound to confess, or that his confession should be voluntary, or that it 
 may be used in evidence against him. People v. Maxiuell, before Riker, recorder, N. V. Gen. 
 Sens., 1 Wheel. Or. Gas. 163. But even under the English statute of Phil. & Mar. or 1 Geo , 
 his statement ought not to be taken till the evidence against him is gone through; and he 
 should then be asked if he has any thing to say in answer to the charge, this was strongly 
 suggested as the proper course by Garrow, B. who, however, received a confession made 
 before the evidence had been gone through; but expressed strong doubts of its legality. 
 Bex v. Fagg, 4 Oarr. & Payne, 530. 
 
CONCESSION. 132 
 
 The prisoner's statement, when required by the prosecutor for the 
 purpose of being given in evidence before the grand jury or at the 
 trial, is merely produced from amongt he depositions, and proves itself.(a) 
 And as the usual form of such statement recites the charge against the 
 prisoner, and that after examination of the witnesses against him the 
 magistrates addressed to him the caution above mentioned, setting it 
 out in the very words of the statute,— rthe written statement itself, pur- 
 porting to be signed by the magistrate, and accompanying the deposi- 
 tions, proves all that recital, as well as what the prisoner said upon the 
 occasion. But if the usual form have not been adopted, then the cau- 
 tion, the prisoner's statement, and the magistrate's signature, must be 
 proved as at common law,(&) namely, by the magistrate or his clerk, 
 or by some person who was present at the examination. (c) 
 
 But although the prisoner be thus cautioned before he makes his 
 statement, yet if his statement amount to a confession, and he were in- 
 
 (a) R. v. Sansome, 19 L. J. 143 m. (c) R. v. Seam, Par. & M. 109. R. v. Wit- 
 
 ty) Per Alderson, B., in R. v. Boyd, 19Law shaw, Id. 145. 
 J. 141. 
 
 On one occasion the confession was drawn out by questions put by the magistrate, the 
 prisoner first having been refused professional assistance, though he had requested to be 
 allowed the aid of an attorney f and though the confession was held technically receivable, 
 Littledale, J. adverted to counsel having been refused, and thought the case ought not, for 
 that reason, to pe further pressed ; and the prisoner was acquitted. Rex v. Ellis, Ry. & 
 Mood. K P. Rep. 432. 
 
 It has often been ruled by the criminal courts of New- York, that a questioning of the 
 prisoner by the justice forms no objection to his examination being read. People v. Smith, 
 
 1 Wheel. Cr. Cas. 54, N. T. Gen. Sess. before Riker, recorder, Oct. term, 1822. And this 
 was allowed though the whole examination stood by way of question and answer ; and one 
 question was improper, viz. whether the prisoner had not before been guilty of petit larceny. 
 People v. Smith, before Riker, recorder, N. T. Gen. Sess. Oct. term, 1822, 1 Wheel. Cr. Cas. 
 54. The same general doctrine was held before Holroyd, J. at Carlisle spring assizes, 1824. 
 
 2 Stark. Ev. 52, note. 
 
 See the statute of New York as to this, ante. 
 
 It is not necessary that the examination should be signed by the prisoner, in order to 
 make it evidence. People v. Johnson, before Riker, recorder, 1 Wheel. Cr. Cas. 193. And 
 Lambe's case has always been considered a leading one in this country. Id. Pennsylvania 
 v. Stoops, Addis. 381, 383, S. P. 
 
 Where the confession'is made to the district attorney, and by him reduced to writing, he 
 may, notwithstanding, give-parol evidence of it. The writing being a mere memorandum 
 need not be produced. Fulton v. Freeman et al, Coxe's Rep. 113. See Rex. v. Hollingshead, 
 4 Carr. & Payne, 242. 
 
 Where a confession has been signed by a prisoner, it is read by the officer of the court • 
 but where the examination is taken down by some person, and not signed by the prisoner, 
 the person who took it down is called as a witness; and he states what the prisoner said, 
 refreshing his memory from the paper. This was done by a magistrate in the case of Rex. 
 v. Jones, Carr. Supp. 13, and by a magistrate's clerk, who had taken down what the prisoner 
 said before the committing magistrate, in the case of Rex. v. Watkins, tried before Mr. Jus- 
 tice Bosanquet, at the Oxford spring assizes, 1831. See note (a) to the case of Rex. y. Swat- 
 Jems, 4 Carr. & Payne, 548. 
 
132 — 1 EVIDENCE. 
 
 duced to make it by any previous promise of favor or threat, as already 
 mentioned,(a) it cannot be read in evidence against him, — unless, in- 
 deed, before he make the statement, he have been undeceived as to the 
 threat or promise, and told that he has nothing to fear from the one or 
 hope from the other.(6) To meet this difficulty, the same section of 
 the statute which directs the above caution to be given, contains also 
 this proviso, " that the said justice or justices, before such accused per- 
 son shall make any such statement, shall state to him and give 
 [*133] *him clearly to understand, that he has nothing to hope from 
 any promise of favor, and nothing to fear from any threat, 
 which may have been holden out to him, to induce him to make any ad- 
 mission or confession of his guilt, but that whatever he shall then say may 
 be given in evidence against him upon his trial, notwithstanding such 
 promise or threat : provided nevertheless, that nothing herein enacted 
 and contained, shall prevent the prosecutor in any case from giving. in 
 evidence any admission or confession, or other statement of the person 
 accused or charged, made at any time, which by law would be admis- 
 sible as evidence against such person."(c) 
 
 It was at one time attempted to be argued that no confession made 
 after the first caution above mentioned, could be given in evidence 
 againt a prisoner, unless the second proviso were also complied with, 
 and the defendant told that he had nothing to" hope from any promise 
 of favor, and nothing to fear from any threat which might have been 
 holden out to him to induce him to confess ; but the judges in the crim- 
 inal appeal court, in the case of B. v. Sansome,(d) unanimously decided 
 that this was necessary only in cases where such a threat or promise had 
 actually been holden out, in order to undeceive the prisoner in respect 
 of it, as mentioned, (e) and make his confession evidence against him 
 notwithstanding; but that in all other cases, it is sufficient to give the 
 first caution, after which any confession, not induced by threat or 
 promise, may be given in evidence against the prisoner. 
 
 The case of B. v. Sansome was thus:— The prisoner was tried upon 
 an indictment for murder ; when he was before the committing magis- 
 trate, the ordinary caution, that first mentioned,^) was read to him, 
 after which he made a statement, amounting to a confession, which was 
 signed by him, and by the committing magistrate, and transmitted with 
 the depositions ; at the trial, however, it was objected that the state- 
 ment could be given in evidence againt the prisoner, as the caution as 
 to the threat or promise had not also been given to him by the magis- 
 trate- but the judges, on reference to them, held that this was pot 
 necessary: the latter was not a condition precedent to the admissibility 
 
 (■M* p. 126. W 19LawXH3n>. 
 
 (c) 11 & 12 Vict, c. 42, S. 18. to An *. P- 13L 
 
PRESUMPTION. . 133 
 
 of a confession of the prisoner before the committing magistrate, and was 
 necessary only where there' had been a previous threat or promise; if 
 given, it has the effect of rendering the confession admissible in evi- 
 dence, notwithstanding such previous threat or promise ; and if not 
 given, the case remained as at common law, and the confession was ad- 
 missible in evidence, unless the party were influenced by some previous 
 threat or promise to make it. (a) So, where after the first of these cau- 
 tions, the prisoner made a statement, which was taken down, 
 but was not signed by him or by the magistrate ; *he was then [*134] 
 remanded, and upon being brought up again, some questions 
 were put to the witness by the prisoner's attorney, who then objected 
 that as an addition had been made to the evidence, the prisoner's former 
 statement could not be evidence against him ; afterwards at the trial, 
 the same objection being made, the statement was admitted in evidence 
 against the prisoner, and the point reserved for the opinion of the crim- 
 inal appeal court: and that court afterwards held that the evidence was 
 properly received.(J) 
 
 (d) By Presumptions. 
 
 A presumption is, where some facts being proved, another follows as 
 a natural or very probable conclusion from them, so as readily to gain 
 assent, from the mere probability of its having occurred, without 
 further proof. (c) The fact thus assented to, is said to be presumed; 
 that is, taken for granted, until the contrary be proved by the opposite 
 party_: stabitur jprcesumtioni donee probetur in contrarium.(d) And it is 
 adopted the more readily, in proportion to the difficulty of proving the 
 fact by positive evidence, and to the obvious facility of disproving it, 
 or of proving facts inconsistent with it, if it really never occurred. It 
 is therefore, we have seen,(e) adopted in proof of intent, of the wilful 
 doing of an act, of malice, and of guilty knowledge, for these can be 
 proved only by the admission of the party, or from his overt acts from 
 which the jury may infer or presume them. It is adopted also in proof 
 of the commission of the offence itself, in the absence of evidence of 
 any person who actually saw it committed, as shall be noticed pre- 
 sently. [1] 
 
 (a) R. v. Samsome, 19 Law J. 143 m. (d) Co. Lit. 313. 
 
 (o) B. v. Bond, 19 Law J. 138 m. (e) Ante, pp. 119-122. 
 
 (c) Arch. PI. & Bv. Civ. Act. 362, 363. 
 
 [1] The ground of all presumptions is the necessary or usual connection between facts 
 and circumstances ; the knowledge of which connection results from experience and reflec- 
 tion! A presumption is, therefore, " an inference as to the existence of a fact not actually 
 known, arising from its necessary or usual connection with others which are known. It is 
 upon this principle that all our knowledge of those relations and existences, which are not 
 perceptible to the human senses, must depend." The force of presumptions is almost intui- 
 
 45 
 
134 EVIDENCE. 
 
 Presumptions are of three kinds : violent presumptions, where the facts 
 and circumstances proved, necessarily attend the fact presumed; (a), pro- 
 fa) Gilb. Ev. 157. 
 
 tively perceived by mankind ; and that principle of the mind which prepares it to expect 
 the future association of circumstances, because it has been accustomed to find them asso- 
 ciated, cannot be accounted for, except by setting it down as imposed upon us by the law 
 of nature. It is the same principle which leads us to reason upon cause and effect in all the 
 regions of inductive philosophy ; of which the doctrines of presumptive evidence rank as 
 an important branch. The triors are to be satisfied that one circumstance has always, or at 
 least usually been found in consecutive connection with another, the like conduct with the 
 like motive the fact to be presumed with the fact established by direct proof. See 1 Starke 
 Ev. 23 to 29, 31 to 39, and 4 id. 493, 4. 1 Dom., B. 3, tit. 6. § 4, art. 3. 
 
 The law presumes that a man intended the result which naturally followed the means vol- 
 untarily used by him. On this principle, a libel injurious in its tendency was declared ac- 
 tionable per se. (Eairev. Wilson, 9 Barnw. & Cress. 643. Bex v. Shipley, 4 Doug, 177, per 
 Willes, J. S. P.) And several persons having caused a plate to be struck calculated for the 
 alteration of bank bills from a lower to a higher denomination, were held to intend the usual 
 consequence, and were convicted of a conspiracy to defraud, though not a bill was altered. 
 Malone's case, before Eadcliff, mayor, N. T. Gen. Sess. Jan. 1817, 2 C, H. Rec 22 ; and see 
 The People v. Bradford, 1 "Wheel. Cr. Cas. 219, 221. 
 
 The seeking of opportunities and means to commit a criminal act ; the flight of the ac- 
 cused; concealing or showing anxiety to conceal evidence of guilt; are circumstances for 
 the prosecution. The fabrication of false or contradictory accounts is a familiar instance ; 
 as of the prisoner's residence or occupation, or acquaintances. (Coe's case, before Eadcliff, 
 mayor, N. Y. Gen. Sess. 1816, 1 C. H. Rec. 141, 3.) So making arrangements to escape, (id.) 
 Using or signing a feigned name. (id. So conoealing instruments of violence or counter- 
 feit money. (See 1 Stark. Ev. 29 to 33, and 2 Ev. Poth. 337, No. 16, § 14.) Fraudulently 
 passing, or possessing with intent to pass counterfeit bills, is a crime where guilty knowl- 
 edge and intent must generally be derived from circumstances. Among these are entries of 
 the purchase of counterfeit bills in cabalistic language used among counterfeiters ; coincid- 
 ence between false bills found in the prisoner's pocket-book and those found in the recesses 
 of his house or residence ; that the prisoner had failed to show a good character ; the pos- 
 session of large quantities of spurious notes; [The People v. Gardner, Sept. 1822, N. T. 
 Gen. Sess. before Riker, recorder, 1 Wheel. Cr. Cas. 23, 25 ; ) paying away the bill without 
 calling for change due on the purchase; (Rhode's case, before Radcliff, mayor, N. T. Gen. 
 Sess. Jan. 1816, 1 Cit. H. Rec. 1, 2 ;) passing a comparatively large bill for a small quantity 
 of liquor not drank, and immediately leaving the store ; a short time after returning with a 
 similar bill, attempting the same practice ; and on being charged, fleeing into the woods, 
 and not accounting for the possession of the bills. (Helm's case, before Riker, Rec. N T. 
 Gen. Sess. March, 1816, 1 C. H. Rec. 46, 7.) So an attempt to conceal or destroy a count- 
 erfeit bill, the prisoner refusing to give an account of himself or to tell his name, a large 
 amount of counterfeits being found in his portmanteau; (Galbrant's case, before Radcliff, 
 mayor, N. T. Gen. Sess. July, 1816, 1 C. H. Rec. 109, 10 ;) denying that he passed the 
 forged' check, and refusing to disclose from whom he obtained it ; held sufficient to convict, 
 no satisfactory account being given. (Vosburgh's case, before Radcliff, mayor, Aug. 1816, 
 N V. Gen. Sess. 1 0. H. Rec. 130.) So two persons being engaged in passing the bill, and 
 contradicting each other and giving unsatisfactory accounts on their separate examination. 
 (Reynold's case, before Radcliff, mayor, N. Y. Gen. Sess. March, 1817, 2 0. H. Rec. 47.) 
 Concealment or attempt to conceal false money, (railed a strong circumstance in Stewart s 
 case, bef. Radcliff, mayor, N. Y. Gen. Sess. June, 1817, 2 C. H. Rec. 87.) In this case one 
 bill was found in the cuff of the prisoner's coat, and, on search at his boarding room, another 
 was found in his pantaloons pocket. So, pretending that the bill was received from S. in the 
 
PRESUMPTION. 134— 1 
 
 bable presumptions, where the facts and circumstances proved, usually 
 attend the fact presumed; (a) and light or rash presumptions, which, 
 however, have no weight or validity at all.(6) 
 
 Under this head is classed that very usual mode of proving offences, 
 adopted from necessity, called circumstantial evidence. Direct and pos- 
 itive evidence of the. commission of offences, cannot in all cases be pro- 
 cured ; people do not always commit offences publicly, in the open day, 
 but oftener commit them in secret, or at night; and if circumstantial 
 evidence were excluded by our law, all secret offences might be com- 
 mitted with impunity. Circumstantial or presumptive evi- 
 dence, therefore, *is allowed in all cases, where direct and pos- [*i35] 
 itive evidence of the defendant's having committed the offence 
 
 (a) 3 Bl. Com. 312. see Arch. PI. & Ev. Civ. Act 363, and the 
 
 (6) Id. G-ilb. Ev. 16t. Co. Lit. 6 b. And cases and other authorities there collected. 
 
 market, without farther account, averring that the note was good, catching up the change 
 in a hurried and confused manner without counting it; offering a sum of money to the offi- 
 cer to release him; and, on this being declined, attempting to escape by knocking the officer 
 down, and giving a confused and unsatisfactory aecount of the transaction. The People v. 
 Quackeriboss, before Biker, recorder, N. V. Gen. Sess. Pee. 1822, 1 Wheel. Cr. Cas. 91, 93. 
 On a charge of receiving stolen goods with knowledge ; finding them secreted in the pris- 
 oner's store, in a place convenient for concealment ; considerable stolen property being found 
 up stairs ; the prisoner, on being questioned, giving no satisfactory account of them ; a great 
 quantity of stolen goods being found in his house ; with bad character of the accused ; were 
 allowed as proof of keowledge. (People v. Teal, bef. Riker, recorder, N. V. GeD. Sess.. 
 March, 1823, 1 Wheeler's Cr. Cas. 199, 201.) So buying the goods at a reduced price, they 
 being of a large amount, receiving them of a stranger ; throwing them into a trunk in a 
 confused and crowded manner ; the trunk being found in a room up stairs, in the prisoner's 
 house, though he kept a store. People v. Cochrane, before Riker, recorder, N. T. Gen. Sess. 
 Nov. 1822, 1 Wheel. Cr. Cas. 81, 84. 
 
 The falsity of pretences on which goods are obtained may also be inferred from circum- 
 stances. Lazarus' case, bef. Radcliff, mayor, N. V. Gen. Sess. June, 1816, 1 0. H. Rec. 88. 
 On the other hand, in cases of counterfeit bills, circumstances considered favorable to the 
 prisoner are, his receiving the counterfeit bills as good in the regular course of business ; 
 (People v. Bryan, before Riker, recorder, N. Y. Gen. Sess. Sept. 1822, 1 Wheel. Cr. Cas. 21, 
 2 ;) passing the note to an acquaintance, and giving a true statement of the prisoner's busi- 
 ness. So having been in the state prison before, he might have offered money to procure 
 his escape, though innocent, he knowing the impression to be against him. So no other 
 spurious bill being found upon him ; and since he was discharged from the state prison, so 
 conducting as to be thought trust-worthy by his employers. The People v. Qmckeriboss, 
 supra. 
 
 In charges for knowingly receiving stolen goods, the following circumstances have been 
 recognized as favorable to the prisoner: going out to sell the goods in the day time, stating 
 that he had other goods of the like kind ; and offering to be present at an auction sale of 
 them ; leaving the original marks on most of the goods ; and after being arrested, aiding in 
 the arrest of the thief, who refuses to answer on examination. (People y. Cochrane, supra.) 
 So part of the goods being found in the prisoner's store, open to the view of those who 
 called in ; the original letters on a stolen dressing box being allowed to remain, by which 
 the owner could identify it ; with good character as to honesty. People v. Teal, supra. 
 
135 EVIDENCE. 
 
 cannot be procured ; and it is often as satisfactory as direct and positive 
 evidence. 
 
 It is also adopted as confirmatory evidence, even whei;e there is di- 
 rect and positive evidence of the offence committed, in order to induce 
 the jury to yield a more ready credence to the direct and positive evi- 
 dence. In larceny, for instance, after proving that the goods-were taken 
 or stolen, proof that they were found in the possession of the prisoner 
 shortly afterwards, and that he did not give any satisfactory account of 
 the manner in which he came by them, is deemed good presumptive 
 evidence of the prisoner having stolen them;(a) and if to this be added 
 evidence that the goods, when found, were concealed or disguise'd, or 
 that the prisoner, when charged with the offence, absconded, it will 
 very much strengthen the presumption. On the other hand, if the 
 goods be not found for a considerable time after they were stolen, the 
 presumption is proportionally weakened. 
 
 And in larceny, even where there is direct and positive evidence of 
 the prisoner's guilt, if at the same time there be any doubt whatever of 
 the jury believing the witnesses, it is usual in practice to add evidence 
 of all circumstances the case furnishes, from which the jury may infer 
 the guilt of the prisoner, arid that the witnesses are speaking the truth ; 
 as for instance, that the prisoner, was seen in the neighborhood of the 
 place from whence the goods were stolen, shortly before they were 
 missed, or about the time when it is probable they were stolen ; that 
 shortly afterwards they were found in his possession, or that he pawned 
 or sold them ; that he gave a false name in doing so ; that he sold them 
 very much under their value ; that he gave a false or unsatisfactory ac- 
 count of the manner in which he came by them ; — or the like. 
 
 Upon an indictment against any person exercising an office, profes- 
 sion, or employment, for a criminal act done by him as such officer, &c, 
 proof that he acted as such officer, &c, will raise the presumption that 
 he was duly appointed, and his appointment therefore need not be 
 proved.(5) And as to offences against officers : — By stat. 8 & 9 Vict. c. 
 87, (for the prevention of smuggling) it is enacted by sect. 132, that if 
 upon any trial a question shall arise whether any person is an officer of 
 the army, navy, or marines, being duly employed for the prevention of 
 smuggling, and on full pay, — or an officer of customs or excise, — evi- 
 dence of his having acted as such, shall be deemed sufficient, and such 
 person shall not be required to produce his commission or deputation, 
 unless sufficient proof should be given to the contrary. 
 
 So in the case of peace officers, justices of the peace, constables, &c., 
 
 it is sufficient to prove that they acted in those characters, 
 
 [*136] without *producing their appointment ; and that even in the 
 
 (a) See Post, tit. "Larceny." Buller, J., 1 Stark. 405. Peake, 236. 
 
 (6) See 6 T. R. 535 n; i T. B. 366, per 
 
BEST ETIDENCE. 136 
 
 case of murder.(a) And the same in other cases, where it becomes 
 a question whether a person acting as a public officer, was so at 
 the time. Therefore, upon an indictment against an officer under gov- 
 ernment, for malversation in his office, a letter of instructions, signed 
 by three of the lords of the treasury, was allowed to be read in evi- 
 dence, without producing the commission by which they were ap- 
 pointed;^) for.it is a general presumption of law, that a person acting 
 in a public capacity, is duly authorized to do so.(c) For the same 
 reason, upon an indictment for perjury, in an oath taken before a sur- 
 rogate in the Ecclesiastical Court, the fact of the person who adminis- 
 tered the oath, having acted as a surrogate, was holden sufficient evi- 
 dence of his being so, without producing his appointment.(c£)[l] 
 
 As to the presumptive proof of intent, the wilful doing of an act, 
 malice, and guilty knowledge ;(e) 
 
 (e) Best evidence. 
 
 Whatever is not confessed, and cannot be presumed, must be proved 
 by direct and positive evidence. This evidence is of two kinds, — writ- 
 ' ten evidence, and the parol testimony of witnesses, — both of which 
 shall be treated of in the next two sections. 
 
 I shall in this place merely notice the general rule, which is applica- 
 ble to criminal cases as well as to civil, namely, that the best evidence 
 the nature of the case will admit of, must be produced, if it be possible 
 to be had ; but if not possible, then the next best evidence that can be 
 had, shall be allowed.(g') For if it be found that there is any better 
 evidence existing than that which is produced, the very non-production 
 of it creates a presumption that it would have detected some falsehood, 
 which at present is concealed.(A) Within the meaning of this rule, 
 written evidence is better than parol evidence ; and, therefore, if a deed 
 
 (a) Per Buller, J., Berrimm v. Wise, 4 T. (d) R. v. Verelst, 3 Camp. 432. 
 R. 366. (e) See Ante, pp. 119-122. 
 
 (6) B. v. Jones, 2 Camp. 131. (g) Arch. PL & Ev. Civ. Act. 372. 
 
 (c) Per Ld. Ellenborough, C. J., 3 Camp. (A) 3 Bl. Com. 368 ; Gilb. Ev. 16; 1 Show. 
 
 433, 432. 397; Carth. 220; 3 East, 192. 
 
 [1] It has been held in Connecticut that a clergyman, in the administration of marriage, 
 is a public officer ; and his acta, as such, in the celebration of marriage, are admitted as pri- 
 ma facie proof of his qualification, without higher evidence. Goshen v. Stonmgton, 4 Conn. 
 Rep. 209. 
 
 Proof that an individual had executed and returned a writ directed to him as coroner, has 
 been held sufficient evidence" of his being commissioned as such, without proof of his com- 
 mission. . Young v. Com., S Binn, Rep. 88. 
 
 The collector and trustees of a school district may be proved such by their acts and repu- 
 tation. AT Coy v. Curtice, 9 Wend. 17. And persons acting publicly as officers of a corpo- 
 ration, are presumed rightfully in office. See United States v. Daribridge, 12 Wheat. 70 ; 
 also All Saints Chwch v. Lovett, 1 Hall's Rep. JST. Y. S. C. 191. 
 
136—1 EVIDENCE. 
 
 or other private written instrument is to be proved, nothing else but 
 the deed or instrument itself shall be admitted in evidence, unless it be 
 proved to have been destroyed or lost, or be in the hands of the oppo- 
 site party; (a) but in the case of records and other public instruments 
 which cannot or ought not to be removed, they are proved by exam- 
 ined copies or certificates, as we shall see hereafter. Upon an indict- 
 ment for the forgery of a written instrument, the forged instrument 
 must be produced, unless it have been destroyed by the de- 
 [*137] fendant, or unless *it be in his possession, and he refuse to pro- 
 duce it after notice.(i) But upon an indictment for stealing 
 a written instrument, or destroying a will, or the like, no notice to pro- 
 duce it is necessary, but secondary evidence of the instrument is admis- 
 sible without it.(c)[l] 
 
 (a) Arch. PI. & Ev. Civ. Act. 312. (c) R v. Aickles, 1 Leach, 330. 
 
 (6) See Post, p. 138. 
 
 [ 1] And the reason of the rule limits the extent of its application ; consequently it does 
 not operate where the law itself obviates the presumption of fraud, which would otherwise 
 arise. Hence, in general, to prove that a person is a public officer, it is sufficient to show 
 that he acted as such ; for, then, in the absence of evidence to the contrary, it is to be pre- 
 sumed that he was duly and legally appointed. 3 Starkie's Ev. 392, 3. So, where a docu- 
 ment is of a public nature, a copy is sometimes admitted ; for the production of the original 
 is dispensed with, on account of the inconvenience resulting from the frequent removal of 
 such papers, and therefore the absence of the original affords no presumption of fraud. 3 
 Starkie's Ev. 393. And in a variety of cases where the opposite party has admitted the 
 facts sought to be established, or by his conduct precluded himself from denying them, pri- 
 mary evidence is dispensed with. Indeed, the whole doctrine as to secondary evidence of 
 written instruments, when applied to the common instance of the best evidence being proved 
 to be unattainable, rests upon much the same principle ; all presumption of fraud is there of 
 course repelled, and the rule, after first disarming the parties of the means of imposition, 
 suffers itself to be relaxed as circumstances in justice shall require, by the admission of the 
 next best evidence. Per Haywood, J., Ingram v. Hall, 1 Hayw. Eep. 193, 206 ; see also 9 
 Petersd. Abr. 157, note; per Thompson, J., MilmorY. Tillotson, 7 Peters, 99, 101; U. S. y. 
 Beyburn, 6 id. 352. 
 
 The secondary evidence, however, must in all cases be in itself competent ; for the rule is 
 never so far relaxed as to allow evidence to be given intrinsically illegal, as hearsay, for in- 
 stance, merely because a party happens to be so unfortunately situated, that it is the best of 
 which his ease is susceptible. 2 Ev. Poth. 147 ; 3 Chitty's BL 368, note ; PenUand v. Somers, 
 2-Serg. & Rawle, 23; and see Johnson v. Chase, 1 Tyl. Rep. 449; Bonnet'? lessee v. Daven- 
 baugh, 3 Binn. 175. 
 
 And on the other hand, the rule is not to be extended to such a rigorous extreme, as to 
 debar a party from justice, because he originally neglected to furnish himself with the high- 
 est possible assurance of the disputed facts. For then two witnesses would be better than 
 one; one hundred better than two, and so on progressively; a writing would be better than 
 a parol contract, a deed better than either, and a record better than all. Per Haywood, J., 
 Ingram v. Hall, 1 Hayw. Rep. 193, 206 ; see also 2 Ev. Poth. 148. 
 
 Nor does the rule operate in any case to exclude evidence, merely because it is not all, nor 
 the most satisfactory which might be adduced, when the evidence offered and that which is 
 withheld is all of the samo same general quality or grade, (3 Starkie's Ev. 391 ; Leibman v. 
 Pooly, 1 Starkie's Rep. 167; Macnally's Ev. 342; 9 Petersd. Abr. 155, note; 1 Chit. Cr. L. 
 
BEST EYIDENCE. 137 
 
 As to parol evidence, there is no distinction between one kind and 
 another; all kinds are of equal degree in the eye of the law ; you can- 
 
 56'! ;) but in such case, it in general goes no farther than to forbid, that evidence which is- 
 in its nature merely circumstantial, shall be received, when direct and conclusive evidence 
 may be had. Com. v. James, 1 Piok. 375 ; 1 Big. Dig. 322, sec. 11. This is forcibly illus- 
 trated by Governor v. Roberts, (2 Hawk's Eep. 26.) There, the secretary of stale was called 
 as a witness, to produce certain papers belonging to the office of the comptroller ; it appeared 
 that the comptroller was absent on a visit, and before his departure, be had deposited the 
 keys of the office with the secretary, requesting him to attend to any applications at the 
 office during the absence of the former ; the comptroller had not been summoned to attend 
 court, and the secretary testified that he attended as the agent, or on behalf of the comp- 
 troller, with the papers. Under these circumstances, it was held, that though the testimony of 
 the comptroller would be more satisfactory than that of the secretary, yet both being oral, and 
 both therefore of the same grade, either was competent to be submitted to the jury. "If," 
 as is well observed by Henderson, J., who delivered the opinion of the court in the above 
 case, " the rule was, that the most full and satisfactory evidence should be produced, it 
 would foEow that where -it appeared ■ there were others present, they should be also pro- 
 duced; or where a person, from his situation, had a better view of the transaction, one who 
 had a less favorable positition should not be received ; or where it appeared that another 
 could give a more detailed account of the affair, one who could not give so full a one should 
 be excluded, although there may be no doubt as to his knowledge of the facts to which he 
 deposes." 
 
 It should be observed here, however, that wherever written evidence exists of the facts 
 sought to be proved by parol, whether the existence of such evidence appear on the direct 
 or cross-examination of the witness introduced, makes no difference. Its disclosure, at any 
 period of the trial, brings its importance into view as the best evidence. Hence, though a 
 party may conduct his examination so as to prove the contents of a writing and keep its ex- 
 istence out of sight, if it turn out that it is the highest evidence, and should have been pro- 
 duced by him ; whenever its existencejippears, the inferior evidence given, will be excluded 
 altogether. Boone v. Dyke's legatees, 3 Monroe, 529, 531 ; Bex v. The Inhabitants ofPadstow, 
 4 Barn. & Adol. 208, S. P. So, though the writing be not the foundation of the action, but 
 comes in question collaterally, the highest evidence of its execution must be produced. Bo- 
 berts v. Tennett, 3 Monroe, 247, 250. And the original in such cases, as in others, must be 
 shown or its non-production legally excused. Cope v. Arberry, 2 J. J. Marsh. 296. 
 
 The following decisions may, perhaps, be most appropriately introduced by way of con- 
 cluding this note. Upon an information for passing a counterfeit sixteen penny piece, it was 
 held, that before any evidence of its want of genuineness could be received,- the piece itself 
 must be produced. State v. Osborn, 1 Boot's Eep. 152. So in ordinary cases of a writing 
 charged to be a forgery. State v. Blodget, id. 534. But where the information was for coun- 
 terfeiting only, and the prosecutor had never been able to get hold of the money, he was 
 allowed to prove the defendant's confession respecting his having made counterfeit pieces of 
 the denomination specified in the information, without producing them. State v. Phelps, 2 
 Root's Eep. 87. 
 
 In a case before Lord Kenyon, at nisi prius, a witness was asked whether the plaintiff's 
 bushel measure had not been tried and found to correspond with the public Belford bushel. 
 But his lordship was of opinion that the question could not be asked, inasmuch as "the best 
 evidence the case would admit of was a production of both measures in court, and a com- 
 parison of them before the jury." Chenie v. Watson, Peake's Addi. Cas. 123. 
 
 In Massachusetts, where, upon an indictment for having in possession a counterfeit bank 
 note, it appeared that the note was passed to one P., who suffered it to remain out of hi3 
 hands for a long time, during which it was lodged with a magistrate, who might havo been 
 produced as a witness; held, that the testimony of P. and his wife, who swore positively to 
 the note from certain accidental marks upon it, was improperly received, unless they had 
 
137 1 EVIDENCE. 
 
 not object to a fact being proved by one witness, because another could 
 have proved it much better ; it may be matter of observation to the 
 jury ; but if the witness be competent, it is not matter of legal objec- 
 tion to him. 
 
 (/) Secondary evidence. 
 
 If the written instrument be destroyed or lost, then upon proof of 
 its destruction, or on proof of search for it in every place where it was 
 likely to be found, without effect, the party will be allowed to give sec- 
 ondary evidence of it ; that is to say, he will be allowed to give in evi- 
 dence a counterpart or examined copy of it ; or to give even parol evi- 
 dence of its contents.(a)[2] 
 
 (a) Arch. PI. & Ev. Civ. Act. 378 ; 1 Arch. ST. P. 21. 
 
 made a private artificial mark upon it ; and also, that the testimony of the magistrate was 
 indispensable,, upon the general principle requiring the best evidence. Com. v. Kinnison, i. 
 Mass. Rep. 646. Upon an indictment, however, against a miller for stealing-, where it ap- 
 peared that P. sent barilla to the defendant's mill, and after it was ground, a mixture of 
 three-fourths barilla and one-fourth of plaster of paris, was returned by the same truckman 
 who took the barilla to the mill, it was held that the government need not.produce the truck- 
 man to prove that it was not. adulterated in the transportation, although there was merely 
 circumstantial evidence of its having been done by the miller. Com. v. Ja-tnes, 1 Pick. 375. 
 [2] In general, where the best evidence is unattainable, a party may resort to secondary 
 evidence. If a paper be on file in a public office under such circumstances that the party can 
 neither obtain it, or compel its production, and it is not made the duty of any person to give 
 out certified copies to be used as evidence, parol testimony will be received. SemMe, Denton 
 v. Hill 4 Hayw. Rep. 73. See Butter v. The State, 5 Gill & John. Rep. 511, 519. But, if 
 the paper is one that might be withdrawn from the files, on application for that purpose, 
 such application should appear to have been made. Even if the application is refused, it will 
 not always be a matter of course to admitgecondary proof Where the liability of the 
 defendants, in an action on a note, had been tried on the merits, in a former action on the 
 same note, brought against them in the name of the plaintiff 's agent, and the note had been 
 put upon the clerk's files, the court refused to allow the note to be taken from the files, or 
 to admit secondary evidence of its contents. They said, that it was always matter of dis- 
 cretion with the court to allow a paper to be withdrawn from the files ; that the liability of 
 the defendant's had been thoroughly tried in the former suit, upon the merits, and under cir- 
 cumstances favorable for the plaintiff; and, that it would be improper to grant him an 
 opportunity to try the question over again. They also held it to be no answer to say, that 
 the defendants could, avail themselves of the judgment in that suit as a defence to the present 
 action. Bogerson v. Need, 16 Pick. Rep. 370. In a suit in chancery, where it appeared that 
 an instrument, by which the defendant transferred to the complainants the benefit of a 
 certain judgment, had been filed in a suit at law between the parties, and the defendant pro- 
 duced a transcript of the record in such a suit containing a copy of the instrument, which 
 the plaintiff was willing should be read if the transcript was introduced along with it; held, 
 that the defendant refusing to accept these terms, the copy could not be received. The 
 appellate court, in their opinion in this case, after adverting to the general rule excluding 
 copies till the originals shall have been accounted for, observe : " The manner of accounting 
 for tiro absence of the original in the present instance, was, by showing that it had been filed 
 in the suit at law, and this was attempted to be manifested by the record produced. But 
 why have they thus disposed of the original ? It must have been there lodged for some pur- 
 
SECONDARY EVIDENCE. 137—2 
 
 Where in order to account for the non-production of an indenture 
 of apprenticeship, a witness stated that hearing it was in the possession 
 
 pose; and its custody have been retained through the operation of law. If it had been the 
 subject of litigation, and its claim settled between the parties irr a suit for that purpose, it 
 ought not to have been again introduced as a set-off against, the demand of the complainant, 
 or as imposing another defence to its claim. To understand, therefore, fully the cause of its 
 absence, and the effect which had thereby been produced the court, (a quo,) we think, properly 
 required that the record should be read, or the copy not admitted, ffandley's ex'r v. Fitzhugh, 
 1 Marsh. Ken. Rep. 24. So, the court may refuse to receive inferior proof upon principles 
 of public policy. Accordingly, in Pennsylvania, where an action was brought for a libel upon 
 the plaintiff, an officer, consisting of certain charges preferred against him to the governor ; 
 though the governor had declined delivering the libellous paper to the plaintiff, and the Court 
 had refused a subpoena duces tecum, (which can only issue there on special application) yet, 
 parol evidence of the contents was held inadmissible.. Gray v. Pentland, 2 Sergeant & 
 Rawle, 23. See,Yoter v. Son-no, 6 Watts' Rep. 166. 
 
 The question has occasionally arisen, whether proof that a paper is out of the state will, 
 of itself, be sufficient to lay the foundation for introducing secondary evidence of its contents, 
 without further evidence showing an effort to obtain it. In Connecticut, it has been held 
 that it will not. Townsend v. Atwater, 5 Day's Rep. 298, 306. So also, in Louisiana. Lewis 
 r. Beatty, 8 Mart. Lou. Rep. N. S., 287, 288,, 289. Otherwise, however, in Kentucky; and 
 the court liken it to the case of a subscribing witness, absent from the state. Boone v.' Dyke's 
 legatees, 3 Monroe 532. See also Eaton v. Campbell, 7 Pick. 10. A written contract de- 
 posited by the parties with a witness in a neighboring state, was allowed to be proved by a 
 deposition on commission, it being out of the jurisdiction of the court. Bailey v. Johnson, 9 
 Cowen's Rep. 115. See further, what is said by Saffold, J., in May's adm'rs v. May, 1 Por- 
 ter's Rep. 131. 
 
 Where the defendant had placed a deed in the hands of M., his agent, who had gone to 
 another state, and carried it with him, and some unsuccessful attempts, the nature of which 
 was not explained, had been made to obtain it ; held that no commission having been sent 
 to examine M. about the deed, or to ascertain what had become of it, and there being some 
 grounds for suspecting a designed suppression of it, parol evidence was inadmissible. Bunch's 
 adm'r v. Burst adm'r, 3 Dess. Eq. Rep. 290, 291. An instrument having been executed at 
 Caraccas, and it appearing that, according to the law of that place, the original was deposited 
 with a notary and kept by him, the parties only being allowed to have certified copies ; 
 held, that this was sufficient to account for the non-produdtion of the original. Mauri v. 
 Heffernan, 13 Johns. Rep. 58. 
 
 If the paper is in the hands of a third person under such circumstances that the law will 
 not compel him to produce it, this is aground for allowing secondary evidence. For various 
 causes showing" this, as also when a paper is privileged so as to be unattainable through a 
 subpoena duces tecum, see Phillipps on Ev. Cow. & Hill's notes, part 2, page 357. See also, 
 United States v. Reyburn, 6 Peters' Rep. 352, 6, 7. 
 
 That proof of the loss or destruction of an instrument is sufficient to lay the foundation for 
 introducing secondary evidence of its contents, is, as a general rule, well established. Some- 
 times the loss or destruction is proved directly, e. g. by the person who destroyed it, swear- 
 ing to the fact; and sometimes the fact is made out by circumstantial evidence, as by 
 showing that it was deposited in a particular chest, office or house, which was subsequently 
 destroyed by fire, or the ravages of war; (Jaclcson, ex clem. Livingston v. Neely, 10 Johns. 
 Rep. 374; Franklin v. Creyon, Harp. Eq. Rep. 243 ; Jeffrey's ex'rs v Parsons'2 Verm. Rep. 
 456; Jaclcson, ex dem. Taylor v. Gulhim, 2 Blackf. 228; Peay v. Picket, 3 M'Cord's Rep. 
 322 ; Lorton v. Gore,. 1 Dow & Clark, 190; RocMl v. Holmes, 2 Bay's Rep. 487 ; Fullis v. 
 Griffeth, 1 Wright's Rep. 305 ;) that it was put into the mail, directed to a particular person, 
 and never reached its place of destination ; (Bank of the United States v.'Sill, 5 Conn. Rep. 
 106 ; Champion v. Terry, 3 Brod. & Bing. 295 ;) or put into the letter bag of a vessel, which 
 
 46 
 
137 — 3 EVIDENCE. 
 
 of the pauper (who was then very ill, and shortly afterwards died,) he 
 called upon him to make inquiries about it, and he told him that when 
 
 was chased by a privateer, and the letter bag thrown overboard; {Anderson v. Bobson, 2 
 Bay's_Rep. 495 ;) or that it has been diligently sought for, and cannot be found ; (Pro- 
 prietors ofBraintre v. Batiks, 6 Verm. Kep. 399; Benner v. Bankof Columbia, 9 Wheat Rep. 
 681; HaM v. SaU, 6 Gill & Johns. 386; Tawnton Bank v. Rkhards, 5 Pick. Eep. 436; 
 Benjamin v. Garee, 1 "Wright's Eep. 449, 450 ; JIT Mullen v. Brown, 1 Harp. Rep. 16.) The 
 like principles apply in criminal cases. See Bex v. Chadwich, 6 Carr & Payne, 181 ; Com- 
 monwealth v. Snell, 3 Mass. Rep. 82 ; United States v. Doebler, 1 Bald. Rep. 519. 
 
 It is not by any means a matter of course, to let a party in to give secondary evidence, 
 even where he produces direct proof of the fact of destruction. If the destruction was ac- 
 cidental, and occurred without his agency or assent ; or even if it was voluntary, and his own 
 act, but yet done under a mistake, so as to rebut all idea of contemplated fraud, inferior evi- 
 dence will usually be allowed. Thus, should a party destroy a paper under the erroneous 
 impression that it could be of no further use, he may afterward, notwithstanding, prove its 
 contents by secondary evidence. Biggs v. Tayloe, 9 Wheat. 483. Or should he destroy a 
 note on its being paid in bank bills, he supposing at the time they were genuine,- when in 
 truth they were counterfeit, the same result would follow. Id. 481. So should he destroy 
 one paper, supposing it to be another. Id. See Dumas v. Powell, 3 Dev. 103 ; also Williams 
 v. Crary, 5 Cowen's Rep. 368, 37Q. But a party who under no pretence of mistake or 
 accident, voluntarily destroys primary evidence, to prevent its being used against him, or to 
 create an excuse for its non-production, to injure the opposite party, or for other fraudulent 
 purposes, thereby excludes himself from the benefit of superior evidence. Biggs v. Tayloe, 
 9 Wheat. 483, 487. Benner v. Bank of Columbia, id. 596, Bank of U. S. v. SiU, 5 Con. 
 Rep. 106, 111. Accordingly, where a plaintiff sued to recover certain moneys received by 
 the defendant through a forged endorsement of the plaintiff 's name on a note payable to his 
 order, and on the trial it appeared that the plaintiff having shown the note and endorsement 
 to a person, a witness in the cause, afterwards entirely erased and blotted out the endorse- 
 ment; held, that it not having been done accidently, or under any mistake, he could not 
 prove the same a forgery by witnesses who could only judge of its genuineness from having 
 it seen before the obliteration. He had by his act deprived the other party of the benefit of 
 witnesses acquainted with his hand writing, and to admit the testimony offered, would be 
 as repugnant to principle as to deny a party the right of cross-examining his adversary's 
 witnesses. Broadwell v. Stiles, 3 Halst. Rep. 59. A fraudulent alteration of a note by the 
 promisee will prevent him from recovering either on the note itself or the original con- 
 sideration. Martendale v. Follet, 1 N. Hamp. Rep. 95. See also, S. P. Gliute v. Small, 17 
 Wend. Rep. 238, 242. Otherwise, as to an alteration or destruction, originating in an honest 
 mistake of fact. Id. And see Atkinson v. Eawdon, 2 Adol. & Ellis, 628., Where a note 
 sued upon was shown to have been voluntarily burnt up by the plaintiff a short time before 
 it fell due, the court held he was bound to explain the act so. as to make it appear honest 
 and justifiable, or he could not recover. For it would be a violation of all the principles upon 
 which secondary evidence is tolerated, to allow a party the benefit of it, who has wilfully 
 destroyed the higher and better testimony. Blade v. Noland, 12 Wend. 113, 4, 5. Even a 
 pretended negligent destruction or loss of an instrument, if the negligence is such as to 
 awaken a suspicion of design, will be followed by the like result. Semble, id. See Living- 
 ston v. Sogers, 2 Johns. Cas. 488. In Farrar v. Farrar, (4 N. Hamp. Rep. 191,) it was held, 
 that where a grantee cancelled a deed, with intent to revest the title, though it would not 
 have this effect directly, yet the destruction being voluntary, he could not give it in evidence ; 
 and so indirectly, it should work the consequence intended. See Tomson v. Ward, 1 New 
 Hamp Rep. 9 ; Commonwealth v. BitMey, 10 Mass. Rep. 403. And it has been held that a 
 fraudulent alteration, made by the grantee, will operate the like result Chesby v. Frost 1 
 New Hamp. Rep. 145; but see Barrett v. Tlwrndilce, 1 Greenl. Rep. 13; Batehv. Hatch, 9 
 Mass. Rep. 311. 
 
SECONDARY" EVIDENCE. 137 — 4 
 
 the indenture expired, it was given up to him, and he burnt it; it was 
 proved also that inquiry was made of the executrix of the master, who 
 
 It has been held, as matter of practice, that a party may prove the existence of the instru- 
 ment, first, or its loss, as suits him. Thus, when he intends to show that it was consumed 
 in a particular office destroyed by fire, he may begin by proving the destruction of the office. 
 Denn v. Pond, 1 Coxe's Rep. 379. In Kimball v. Morrett, 4 Greenl. 368 370, it was laid 
 down that the party must first show the existence or due execution of the instrument, 
 second its loss, and then, and not till then, he may enquire specifically as to the contents. 
 Such has been said in another case, to be the natural order. Per Burnet, J., in Allen's 
 Lessee v. Parish, 3 Hamm. Rep. 107, 8. M' Gredy v. Schuylkill, Nav. Co., 3 Whart. Rep. 424. 
 But these facts are so intimately blended together, and have such a mutual relation to, and 
 dependence upon each other, that it is difficult and many times impossible to separate the 
 proof one part from the other. Id. And see per Sherman, J., id. p. 121, 2. M'Laurin v. 
 Talbot, 2 Hill's Rep. 526, per Harper, J. 
 
 It is quite clear, however, that unless proof is adduced of the loss or destruction, satis- 
 factory to the court, the evidence as to the execution and contents cannot be submitted to 
 the jury. Jackson, ex dem. Livingston, v. Frier, 16 Johns. Rep. 193, 196. Bees v. Lawless, 
 4 Litt. Rep. 218, 219, 220. Be Haven v. Henderson, \ Dall. Rep. 424. Dorsey v. Dorsey's 
 Eeirs, 3 Harr. & John. 219. Showders v. Harper, 1 Harring. Rep. 444. 
 
 The proof of loss or destruction must generally be by witnesses testifying under oath. 
 Accordingly, where a justice of the peace acted upon his own personal knowledge of the 
 fact of the loss of a note, left with him at the time of joining issue in the cause, held erroneous, 
 and good ground for reversing his judgment upon certiorari Cary v. Campbell, 10 John. 
 Rep. 363. 
 
 The loss may be proved by the declarations of the adverse party ; (Bristol v. Wait, 6 Carr. 
 
 6 Payne, 591; Taunton and South Boston Bank v. Whiting, 10 Mass. Rep. 332 ; North v. 
 Drayton, Harp. Eq. Rep. 34;) or of those under whom he claims title; (Gorbin v. Jackson, 
 ex dem. Garnsey, 14 Wend. Rep. 619 ;) and this, as to the latter, even though they might be 
 called as witnesses. Id. Stanley v. Addison, 8 Lou. Rep. (Curry,) 207. In respect to the 
 admission of one joint tenant or tenant in common, to prove loss, &c, as against the other, 
 see Phillipps on Bv., Cow. & Hill's Notes, part 1, p. 397, et seq. 
 
 In general, the declaration of a person who might be brought to testify on the subject is 
 mere hearsay and inadmissible. The Governor v. BarUey, 4 Hawks' Rep. 20. Bex v. Denio, 
 
 7 Barnw. & Cressw. 620 ; S. C, 1 Mann. & Ryl. 294. Taunton Bank v. Bichardson, 5 Pick. 
 441. Mitchell v. Mitchell, 3 Stew. &, Porter, 81, 84. Nor can you rely upon the naked 
 declarations of a deceased person as to his having had the paper and destroyed it, without 
 showing search. Bex v. Bawden, 2 Adol. & Ellis, 156. Rumors of the destruction of an 
 instrument stand, of course, upon the same ground. Angel v. Felten, 8 Jobn. Rep. 149. 
 
 Parties and persons interested are recognized as competent witnesses in respect to the 
 facts and circumstances necessary to lay a foundation for secondary evidence. This excep- 
 tion to the general rule rests upon the ground that the point is preliminary and incidental, 
 addressed solely to the court, and not affecting the issue to be tried by the jury. See per 
 Marshall, C. J., in FayloeY. Biggs, 1 Pet. Rep. 591, 596, 7; Jackson, ex dem. Livingston v. 
 Frier, 16 Johns. Rep. 193, 195, 6 ; 8 Amer. Jurist, 28, 9. The doctrine has been held as to 
 proof of search, loss, Ac, in Kentucky ; (Grimes v. Talbot, 1 Marsh. Ky. Rep. 205, 6 ;) in the 
 Supreme Court of the United States; (Tayhe v. Biggs, 1 Pet. Rep. 591 ; see also Biggs v. 
 Tayloe, 9 Wheat. 485, 6;) Pennsylvania; (see De Haven v. Henderson, 1 Dall. Sop. 454;) 
 South Carolina, (Smith v. Wilson, 1 Dev. & Batt. 40, 41 ;) and Massachusetts ■■ (see Poignard 
 v. Smith, 8 Pick. 278; Donelsonv. Taylor, id. 390; (but parties and persons having an in- 
 terest cannot be allowed to speak in respect to the contents of the instrument. Adams v. 
 Leland, 7 Pick. 62 ; Donelson v. Taylor, 8 id. 390. See Seekrightv. Bogan, 1 Hayw. Rep. 
 178, note. The doctrine as to the competency of parties, &e., on questions preliminary to 
 the introduction of secondary evidence has befen held in Virginia, North Carolina, and New 
 Hampshire. So, semble, in Maine. 8 Amer. Jurist, 29, note 1. In New York, also. See 
 
137—5 EVIDENCE. 
 
 said she knew nothing about it ; but it did not appear that any search 
 had been made for it among the papers of the master or of the pauper: 
 the court held this to be sufficient ; it was not, perhaps, sufficient as 
 
 Blade v. Noland, 12 Wend. 1*73 ; Jackson, ex dem. Brown v. Beits, 6 Cow. Rep. 200. And 
 in the latter state, where one party is sworn to prove the loss, the opposite party may be 
 examined to disprove it and account for the instrument. 2 E. S. 406, § 74. In Delaware, 
 parties are competent to prove loss, and the other party may produce witnesses to impeach 
 the credit of his adversary thus sworn, before secondary evidence is given to the jury. This 
 is upon the principle that the court must be satisfied as to the fact of loss by credible testi- 
 mony. Shrowders v. Harper, 1 Harringt. Eep. 444. 
 
 In some cases it has been held, that the party m»( testify in order to rebut the suspicion 
 that he is endeavoring to substitute inferior for primary evidence in order to defraud ; as, 
 where he is presumed, from the circumstances, to be in possession of the instrument. Tayloe 
 v. Biggs, 1 Pet. Rep. 591; Blanton v. Miller, 1 Hayw.4; Poignard v. Smith, 8 Pick. 278 ; 
 Be Havener. Henderson, 1 Dall. 424; Park v. Cochran, 1 Hayw. 410; Givensy. Manns, G 
 Munf. Rep. 201; Smith v. Martin, 2 Tenn. Rep. (Overt.) 208. 
 
 But in Connecticut, the loss of a specialty upon which the suit is founded cannot be 
 proved by a party,; for in that case the fact of loss is a material and traversable one, to be 
 determined by the jury. Coleman v. Wolcott. 4 Day's Rep. 388. So semble, in actionB 
 upon lost simple contracts, as notes, &c, Swift v. Stevens, 8 Conn. Rep. 431. Such is the 
 doctrine in South Carolina ; (Sims v. Sims, 2 Rep. Const. Ct. So. Car. 215 ; Davis v. Beribow, 
 2 Bail. Rep. 427;) and in Vermont; (Wright v. Jacobs, 1 Aik. Rep. 394; Penfieldv. Cook, 
 id. 96.) As to the rule in New Hampshire and North Carolina, see MNeil v. M'Clintock, 5 
 N. Hamp. Rep. 355, 358 ; Cotton v. Beasley, 1 N. Car. Law. Repos. 239. The doctrine has 
 been held otherwise in New York, Massachusetts, Pennsylvania, and Louisiana ; and there, 
 in actions upon lost notes, parties, &c, are competent witnesses to prove the fact of the loss. 
 Chamberlain v. Gorliam, 20 Johns. Rep. 144; Blade v. Noland, 12 Wend. 173; Meeker v. 
 Jackson, 3 Teates' Rep. 442; Bonelson v. Taylor, 8 Pick. 890; Page v. Page, 15 id. 399; 
 Miller v. Webb, 8 Lou. Rep. (Curry,) 510. So in Delaware, in an action on a lost deed. 
 Shrowders v. Harper, 1 Harringt. Rep. 444. But they cannot be allowed to testify to the 
 jury. Bonelson v. Taylor, supra. See Jones v. Fales, 5 Mass. Rep. 101, and Forbes v. Wale, 
 1 W. Black. 532. 
 
 In respect to the form of the oath to be administered where a party or person interested 
 is sworn to prove loss, &c , see Phillipps on Bv., Cow. & Hill's Notes, part 2, p. 695, et seq. 
 
 In several cases the party's affidavit has been recognized as competent on the question of 
 loss. See Givens v. Manns, 6 Munf! 201 ; Taunton Bank v. Richardson, 5 Pick. 436 ; Poign- 
 ard v. Smith, 8 id. 278; Tayloe v. Biggs, 1 Peters' Rep. 591 ; Smithy. Wilson, 1 Dev. &Batt. 
 40, 41 ; Bonelson v. Taylor, 8 Pick. Rep. 390 ; Patterson v. Winn, 5 Peters' Rep. 240 ; Riggs v. 
 Tayloe, 9 Wheat. 486; Smitli v. Martin, 2 Tenn. Rep. Overt. 208 ; Page v. Page, 15 Pick. 
 Rep. 374, 5. But a person competent to testify generally in the cause,-must testify in the 
 ordinary way, that the advantage of a cross-examination may be preserved. Poignard v. 
 Smith, 8 Pick. 272, 278. See, however, Smith v. Martin, 2 Tenn. Rep. (Overt.) 208. 
 
 Where a paper has been deposited in a public office, an official certificate of the officer is 
 sometimes made evidence of the los3 by statute. See Jackson, ex dem. Swartwouty. Cole, 
 4 Cowen'a Rep. 589. But unless there be a statute, authorizing the certificate, it cannot be 
 made evidence. See Hammond v. Norris, 2 Harr. & John. 130. A surrogate's certificate 
 as to ineffectual search for a will deposited in his office, is not admissible independent of a 
 statute rendering it so. Jackson, ex dem. Schuyler v. Russell, 4 Wend. 547. And even 
 where this certificate is made evidence, the party is not obliged to resort to it, but may still 
 . prove search to have been made in any other regular mode. Id. Or, he may show that 
 the opposite party obtained it surreptitiously, and thus supersede the necessity of getting 
 the certificate of the officer, which might otherwise be requisite. Davis v. Spooner, 3 Pick. 
 Rep. 287, 8. 
 
SECONDARY EVIDENCE. 137—6 
 
 proof of the actual destruction of the indenture by the pauper, but it 
 was sufficient to discharge the party of laches in not making further 
 inquiry.(a) And in a case in a note in East's Beports,(/3) Lord Ellen- 
 borough, 0. J., said, " I remember an indictment tried before the late 
 Mr. Justice Buller, against a man, I think, of the name of Spragg, for 
 forging a note, which he afterwards got possession of and swallowed ; 
 and parol evidence was permitted to be given of the contents of the 
 note, though no notice to produce it had been given ; but then, indeed 
 it might be said that such a notice would be nugatory, as the thing 
 itself was destroyed." 
 
 Where the document is lost, the proof of the search for it must be 
 by persons who actually at one time had the custody of the original, 
 or by the persons legally entitled to the custody of it,(c) and must be 
 such as to satisfy the court that sufficient diligence has been used in 
 the search. (d) 
 
 *So, if the deed or other instrument be in the hands of the [*138] 
 opposite party, and he refuse, on notice, to produce it at the 
 trial, you may give secondary evidence of its contents. (e) 
 
 So, if a witness served with a subpegma duces tecum to produce a 
 deed or other writing, appear at the trial, but refuse to produce the 
 document required of him, for a reason which the judge may deem 
 sufficient, — as if it be a deed, and he claim title under it,(^) or if he be 
 an attorney, and claim a lien upon it, (A) or object that it is the title deed 
 of his client, (i) — the judge upon application will allow the party to 
 give secondary evidence of its contents. And where a witness, who 
 had been subpoenaed to produce a letter, stated in his examination at 
 the trial, that after action brought he gave it to the opposite party, who 
 said that he wished to give it to his attorney ; upon this the attorney 
 was called upon to produce the letter, and not doing so, Ld. Kenyon 
 allowed the other party to give parol evidence of its contents.^) [1] 
 
 (a) R. v. Morion, 4 M. & S. 48. (?) Doe v. Owen, 8 Car. & P. 110. 
 
 (6) Bow v. Hall, 14 East, 276 n. (h) Doe v. Boss, 7 Mees. & W. 102. R. v. 
 
 (e) See R. v. CasUeton, 6 T. R. 236. R. v. Banking 2 Car. k K. 823. 
 
 Piddlehinton, 3 B. & A. -460. R. v. Stotir- (j) Mills v. Oddy, 6 Car. & P. 730. Ditcher 
 
 bridge, 8 B. & C. 96. v. Kendrick, 1 Car. & P. 161. 
 
 (<Z) See R. v. East Farleigh, 6 D. & R. 147. (7c) Leeds v. Cook, 4 Esp. 256. 
 
 (e) See infra. 
 
 [1] The writings required mast, ia some way or other, be shown in the party's possession 
 or power, before it can be said that he is in fault for not producing them, and consequently 
 before secondary evidence of their contents is received, or any inference made against him 
 from their non-production. See per Sutherland, J., in Life & Fire Ins. Co. v. The Mechanic's 
 Fire Ins. Co., 7 Wend. 34. Per Taylor, C. J., in Nicholson v. Billiard, 1 N. Car. Law Repos. 
 254. .Per Johnson, J., in Reid v. Cokock, 1 Nott & M'Cord, 592, 604. M'Killip v. M'R- 
 henny, 4 Watts' Rep. 318, 319. 
 
 Some cases as to the mode of proving the fact of possession, will be found in Phil- 
 
138 EVIDENCE. 
 
 (<?) Notice to produce. 
 
 If you wish to prove a document, which is in the hands bf the op- 
 posite party, or of his agent or deputy,(as) or of his banker, (b) you may 
 
 (a) BaMney v. Ritchie, 1 Stark, 338. Sin- (b) Partridge v. Coates, Ry. & M. 156. Bur- 
 ctair v. Stephenson, 2 Bing. 514, 1 Car. & P. ton v. Payne, 2 Car. & P. 520. 
 582. Taplin v. Atty, 3 Bing. 164. 
 
 lips on Evidence, Cowen & Hill's Notes, part 2, p. 411. It cannot be made out as against 
 one defendant by the declaration of his co-defendants, unless a joint liability in all be first 
 shown. Birbeck v. Tucker, 2. Hall's Rep. N. T. S. C, 121. 
 
 But possession is frequently presumed from the nature of the paper, as well as other cir- 
 cumstances, indicative of its place of custody. The inquiry, in the first instance, may gen- 
 erally be determined by ascertaining to whom the possession rightfully belongs ; for in the 
 absence of proof to the contrary, the law will presume that the person entitled holds the cus- 
 tody. Thus an appointment of an officer as overseer was presumed to be in his possession. 
 Rex v. Leicester, 1 Barn. & Aid. 173. On the general question as to the person to whose 
 possession title deeds belong, see Lord Buckhurst's case, 1 Coke's Rep. 1. 
 
 In some of the states, where a prima facie* case of possession is made out against a party 
 notified to produce a paper, he may be sworn to prove the contrary. Such is the.law in 
 Pennsylvania. Wood v., Connell, 2 Whart. Eep. 532. But a party sworn to this purpose, 
 cannot be allowed to testify generally as to the very gist of the cause. Id. In the circuit 
 court of the U. States, held, that though the party might purge himself by swearing that he 
 had not the paper in his possession, or had diligently searched but could not find it, yet he 
 could not be obliged to answer whether he had not received such, a paper. Vassee v. Miff- 
 lin, 4 Wash. C. C. Bep. 519. Nor is he obliged to testify at all, but he generally does so in 
 order to avoid the inferences which might otherwise be made against him. Wood v. Con- 
 nell, 2 Whart. Rep. 562, 3. As to this doctrine in New York, see Hammond v. Hopping, 13 
 Wend,. 505. But the attorney of the party may be compelled to testify. See Rhoades' les- 
 see v. Selin, 4 Wash. C. C. Rep. 115, 718. 
 
 The operation of a notice to produce cannot be defeated, by the party subsequently trans- 
 ferring the custody of the paper to another person ; for such conduct, if sanctioned, might 
 compel the opposite party to call a most unwilling witness. Per Best, C. J., in Best v. Os- 
 borne, 1 Carr. & Payno, 632. Knight v. Martin, 1 Gow. 26. Even where the party, in good 
 faith, lets the paper go out of his hands after notice, he ought to apprise the other party of 
 it, so that he may know where to find it. Jackson ex dem. Burr v. Shearman, 6 John. Rep. 
 18, 21. Where notice had been given to the party, and upon a second trial, was served 
 upon the attorney, who informed the party serving it, that the instrument had been assigned, 
 without his privity to some one he did not know ; held that the notice was insufficient with- 
 out further inquiry from the party. Leeds v. Cook, 4 Esp. Rep. 256. See Fwry v. Smith, 1 
 Hud. & Brooke, 735, 138, 9. 
 
 The party who has a written instrument in his possession and has been required to pro- 
 duce it, may always prevent his adversary from resorting to secondary evidence, by produc- 
 ing it, when wanted, on the trial. Sean v. Garnahan, 7 Mart. Lou. Rep. N. S. 258. But, 
 after he has availed himself of the chance that his adversary would be unable to produce 
 secondary evidence, and finds that his artifice has failed him, he cannot, by brining forward 
 the instrument, exclude the use of such secondary evidence as may have been given, unless 
 he proves the instrument himself. Semble, Jackson v. Allen, 3 Stark. Rep. 74. 
 
 And a party refusing, on notice, to produce a paper in his possession or under his control, 
 and thus obliging his adversary to resort to parol or secondary evidence of its contents, can- 
 not be allowed to contradict the secondary evidence thus given, without producing the paper 
 itself. Bogart v. Brown, 5 Pick. 1 8. Indeed, it has been held, that a party refusing to pro- 
 duce a paper in his possession, called for under a notice to produce, cannot be allowed after- 
 wards to retract and put in the paper. 
 
NOTICE TO PRODUCE. 138 — 1 
 
 give him or his attorney notice to produce it ; and if when called upon 
 at the trial, he refuse to produce it, then upon proof of the notice, and 
 that the document is in the possession of the party or his agent, &c.,(a) 
 you may give secondary evidence of its contents. [2] 
 
 "Where,, upon a bill of indictment for the forgery of a deed being 
 preferred, the grand jury stated to the judge that they were informed 
 that the deed alleged to be forged was in the possession of the defend- 
 ant, and asked whether they could return a true bill, if the deed were 
 not produced before them ; the judge (Parke, J.) told them, that if the 
 deed, from being in the possession of the prisoner, or from any other 
 sufficient cause, could not be produced before them, they might receive 
 secondary evidence of its contents.(J) The case was tried at the follow- 
 ing assizes, and upon that occasion due' notice was given to the priso- 
 ner to produce the deed ; it was proved that his attorney had given it 
 in evidence in an ejectment, as part of the prisoner's title, and had after- 
 wards received it back ; and Vaughan, B., held, that on the prisoner's 
 counsel refusing to produce the deed, this was sufficient to let 
 in secondary evidence of its contents.(c) *Where, upon an in- [*13 9] 
 dictment for forging a deed, it was proposed to give secondary 
 evidence of it, upon the ground that it was in possession of the prisoner, 
 and that he had notice to produce it ; but it appearing that the notice 
 was given since the commencement of the assizes, Parke, J., held that 
 the notice was not sufficient, as it ought to have been given a reasona- 
 ble time before the assizes ; it was then proved that the prisoner, on an 
 examination on oath upon another occasion as a witness before a mag- 
 istrate, stated, that he had had the deed in question, but that thinking 
 it of no value he burnt it ; the admission of this examination in evi- 
 
 (a) See Robb v. StarJcey, 2 Car. & K. 143. (c) R. v. Hunter, 4 Car. & P. 128. 
 
 (6) R. v. Hunter, 3 Car. & P. 591. 
 
 [2] The rule on this subject, generally, is the same in criminal as in civil cases. See Rex v. 
 Watson, 2 T. P. 201, per Buller J. ; M'Nally's Ev. 236, 7, 8, 9 ; Roscoe's Cr. Ev. 9, et seq ; 
 The People v. Holbrook, 13 Johns. Rep. 90 ; United States v. Britton, 2 Mason, 464, et seq ; 
 State v. Kinbrough, 2 Dev. Rep. 4.31, 436; State v. Gustin, 2 South. Rep. 744, 746; State v. 
 Potts, 4 Halst. 26, 28, 9, et seq. 
 
 The general rule, that where one party wishes to avail himself of a written instrument, 
 in possession of his adversary, he must give notice to produce it as recognized in tho follow- 
 ing cases, as well as in many others cited in our succeeding notes under this head. War 
 ing v Warren, 1 John. Rep. 340. Rogers v. Van Hoesen, 12 id. 221. Nicholson v. Hittara 
 1 N. Car. Law Repos. 253. Bobbm v. Watkins, Col. Cas. 33. Pickering v. Meyers, 2 Bail 
 Rep. 113. Blood v. Harrington, 8 Pick, 552. Smith v. Morrow, 1 Monroe's Rep. 234. 
 Thayer v. Middlesex Mutual Fire Ins. Co., 10 Pick. 326. M Glean v. Hertog, 6 Serg. & Rawle, 
 154. Alexunder v. Coulter, 2 id. 494, 476. Kennedy v. Fowlce, 5 Harr. & John. 63. Camp- 
 bell v. Wallace, 3 Yates' Rep. 271. Jaclcson, ex dem. Livingston v. Frier, 16 John Rep. 193 
 Boyce v. Foster, 1 Bail. Rep. 540. Frame v. Frawc, 1 Penning Rep. 166, 7. State v. Kim- 
 brough, 2 Dev. Rep. 431. Thornton v. Moody, 2 Fairf. Rep. 255, 6. M'Kellip v. Mllhenny, 
 4 Watts' Rep. 317. 
 
139 EVIDENCE. 
 
 dence was objected to, as being on oath, but as the prisoner at the time 
 was not charged with this offence, Parke, J., admitted it, and held that 
 the prosecutor was entitled to give secondary evidence of the deed : 
 the secondary evidence offered was a copy of the deed ; but as the per- 
 son who made this copy said that he had never examined it with the 
 original, Parke, J., said, that under these circumstances there could 
 hardly be a satisfactory conviction ; and the prisoner was accordingly 
 acquitted.(a)[l] 
 
 There are some cases, however, in which a notice to produce is not 
 necessary : first, a notice to produce a notice is not necessary in any 
 case ;(b) secondly, in larceny of a written instrument, secondary evi- 
 dence of it may be given at the trial, without giving the prisoner a no- 
 tice to produce the original ;(c) in the same manner as in civil cases, in 
 trover for a written instrument, the nature of the instrument may be 
 proved, without giving notice to produce the original.(d) 
 
 The following may be the form of a 
 
 .Notice to Produce. 
 
 Yorkshire Summer assizes, [or Midsummer sessions for the East Ri- 
 ding of the county of York,'] 1852. 
 
 The Queen against A. B. 
 Take notice, that you are hereby required to produce to the court 
 
 (a) R. v. Baworth, 4 Car. & P. 254. (d) Bucher et al. v. Jarratt, 3 B. & P. 143. 
 
 (6) See Arch. PJ. & Ev. Civ. Act. 383. Bow et al. v. Ball, 14 East, 274. Per Gibbs, 
 
 (c) R. v. Aickles, 1 Leach, 330. J., in Scott et al. v. Jones, 4 Taunt. 868. 
 
 [1] In England, a notice to produce may be either parol or written ; and if both a parol 
 and written notice has been given, proof of either is sufficient Smith v. Young, 1 Camp. 
 440. Rose. Ev. 4. Rose. Cr. Ev. 10. 2 Russ. on Cr. 629, Thil. ed. 1836. But see 3 Chit- 
 ty's Gen. Prac. 835; 
 
 In New York, however, a notice to produce is required, by the rules of tire supreme court, 
 to be in writing. 
 
 In most of the United States, persons interested, and even parties to the record, are com- 
 petent witnesses to prove the service of notice to produce. Jordan v. Cooper, 3 Ser, & 
 Rawle, 575. Smith v. Wilson, 1 Dev. & Batt. 40. The plaintiff was held a competent wit- 
 ness to prove the service of notice of the cause of action, required, by statute, to be given 
 to a justice of the peace, thirty days before process issued. Kidd v. Riddle, 2 Yeates Rep. 
 442. 
 
 Where a notice or demand, not required to be in writing, is served upon a party by read- 
 ing it from a paper, it may be proved by the person who read it without producing the 
 writing or excusing its absence. Blake v. Ray, 1 Dev. & Batt. 334. 
 
 On the general question as to what notices should be in writing, it has been held, that 
 where a statute requires reasonable notice, and prescribes no form, it need not be in writing. 
 Rex v. Surry, 5 Barn. & Aid. 539. A statute directing notice to be left at a particular place, 
 contemplates written notice. Semble, Gilbert v. The Columbia Turnpike Co. 3 John. Cas. 
 107, 109. " A notice in legal proceedings means a written notice." Said id. p. 109. See 
 the dissenting opinion of Bronson J., 15 "Wend. 428, 9, 430.. 
 
NOTICE TO PRODUCE. 139—1 
 
 and jury, upon the trial of this indictment [as certain, &c, describing the 
 instrument; or if it be an alleged forgery, say, a certain paper writing, pur- 
 porting to be, &c.,~] and all other letters, books, .papers, and -writings what- 
 soever, relating to the matters in question in this prosecution. 
 
 Yours, &c, 
 G\ H., the [prosecutor's attorney.] 
 To [A. B. the above-named defendant.'][2] 
 
 *This notice should be served such a reasonable time before [*140] 
 the trial, as will allow of the party's searching for the instru- 
 ment, for the purpose of producing it ;(a) and in country cases, for the 
 assizes, it ought to be served before the commission day,(&) unless it 
 appear that the party actually has it in the assize town at the time. 
 Afterwards at the trial, the party giving the notice may call for the in- 
 strument or not, at his option. [1] 
 
 (as) Simms v. Kitchen, 5 Esp. 46. Souse- (b) R. v. Haworlh, 4 Car. & P. 254. Trist 
 
 man v. Roberts, 5 Car. & P. 394. Hargest v. v. Johnson, 1 Mo. & R. 259. George v. Thomp- 
 Fothergill, Id. 303. son, 4 Dowl. 656. 
 
 [2] As to the form of the notice, it should be sufficiently specific in its terms fairly to ap- 
 prise the party of the paper which he is required to bring forward. On this subject the rule 
 applicable to notices generally, would seem to apply. See Graham's N. V. Prac. 529. A 
 notice not describing the paper sought,- but in broad terms requiring the party to produce all 
 papers, relating to the bill or debt in question, has been held too vague. France v. Lucy, 
 Ry. & Mood. 341. Jones v. Edwards, 1 McClel. & Tounge, 139. See 3 Chitty's GeD. Prac. 
 835, 6. Conceding, however, that a notice in general terms, to produce all papers in the 
 party's possession or under his control, relating to the matter in suit, would be held of no 
 force or effect, yet, although the notice does not give a minute description of the paper 
 sought, if it apprise the party that this paper is the one wanted, the object of the notice is 
 answered, and it will be held sufficient. See per Sutherland, J., delivering the opinion of 
 the court in Walden v. Davison, 11 Wend. 65, 6*7. Accordingly, notice to the attorney to 
 produce a certain letter, written by the plaintiff to the defendant, concerning an execution 
 produced on a former trial of the same cause, "" and all other papers in your custody or 
 power, relating to the matter in controversy .in this cause," was adjudgedsufficiently explicit 
 to notify the attorney that the execution was one of the papers required ; especially where 
 it was shown that, on such former trial, the letter and execution were produced by the at- 
 torney himself, and he-did not attempt to excuse himself from its production on the second 
 trial, except on the ground of its not being in his possession. Walden v. Davison, supra. 
 
 [1] The notice must be reasonable in point of time ; and whether it is so, or not, is a 
 question exclusively for the court, upon which they are to exercise a sound legal discretion 
 in reference to the circumstances of each particular case. Per Savage C. J", in Utica Ins. Go. v. 
 Caldwell, 3 Wend. 296; per WoodwOrth, J., in Gorham v. Gale, 1 Cowen's Rep. 639. See 
 also M'Pherson v. Rathbcme, 1 Wend. 216; Hammond v Hopping, 13 Wend. 505, 508, 9, per 
 Sutherland, J. 
 
 In Drabble v. Donner, (Ry. & Mood. N. P. Rep. 4*7,) a notice to produce letters written by 
 the plaintiff to the defendant, who was a foreigner, was held sufficient when served four 
 days before the trial, though the defendant had come into the country only seven months 
 before, not designing to change his residence, and though the letters were written eighteen 
 years back, and were addressed to the defendant at his foreign domicil. The court did not 
 pretend that the notice was sufficient to enable the party to obtain the papers from his resi- 
 
 47 
 
140 EVIDENCE. 
 
 {h) By Dying Declarations. 
 
 In trials for murder or manslaughter, the dying declaration of the 
 deceased, as to the prisoner's guilt, the infliction of the injury, &c. made 
 at a time when he was perfectly aware of his danger, and entertained 
 no hope of his recovery,, is receivable in evidence in proof of the indict- 
 ment, — the consciousness of the near approach of death being deemed 
 equivalent to the sanction of an oath. Therefore, as a foundation for 
 such evidence,, expressions or actions of the deceased, indicating the 
 sense he entertained of his danger,(a) or circumstances from which the 
 same may be collected(&) must first be proved, in order that the court 
 may judge whether the deceased, at the time he made the declaration, 
 was in that awful state of certainty, as to his approaching dissolution, 
 which the law treats as equivalent to the solemn sanction of an oath. 
 And it is for the court to judge of this, not the jury ; for it is the court 
 that has to decide whether the evidence is receivable.(c)[2] 
 
 (a) Tinkler's.case, 1 East, P. C. 354. 358. 
 
 (6) 1 East, P. C. 354. John's case, Id. 351, (c) John's case, supra. 
 
 denoe, but went upon considerations of the inconvenience and delay which would be occa- 
 sioned, unless inferior evidence were received under such circumstances. S. C. 1 Carr. & 
 Payne, 188. The English eases, however, generally require that notices to produce should 
 be served in such season as will afford the other side a reasonable opportunity of obtaining 
 the paper. See Atkinson v. Carter, 2 Chitty's Rep. 403. Brown v. Waters, 1 Mood. & Malk. 
 235. Sims v. Kitchen, 5 Esp. Rep. 46. Houseman v. Roberts. 5 Carr. &, Payne. 394. A 
 cause was tried on Wednesday morning at the assizes ; on the previous Monday evening the 
 defendant's attorney, being at the assizes town, and nineteen miles from his office, was served 
 with notice to produce a paper, which would probably be at his office ; held, that the service 
 was too late. Harget v. Fathergitt, 5 Carr. & Payne, 303. Notice was given to the attorney, 
 at Billerioay, in Essex county, to produce certain deeds, who went to London and obtained 
 them ; afterwards, and on Monday preceding the day of trial, which was appointed for Wed- 
 nesday, a, fresh notice was given to the attorney to produce another deed; the attorney 
 stated to. the person who served the notice that he had not the deed, but that if the adverse 
 party would pay the expense of sending a messenger for them to London, it should be had : 
 this offer not being complied with, the court held the notice insufficient, and that secondary 
 evidence could not be given. Otherwise, however, it seems, if the party had offered to pay 
 the expense of sending. Doe, ex dem. Curtis v. Spitty, 3 Barn. & Adol. 182. A prisoner 
 tried at the assizes on Wednesday for setting fire to his house with intent to defraud an in- 
 surance company, was, on the Monday preceding, served at the prison with notice to pro- 
 duce the policy of insurance given him by the company ; the prisoner's home was ten miles 
 from the prison ; and held, that the prisoner, could not be presumed to have the policy in his 
 possession at the prison, and as the trial might have come on at an earlier period, the notice 
 was not suffioient to let in secondary proof. Sex v. ElMcombe, 5 Carr. & Payne, 522. And 
 it has been laid down generally, that a notice to produce, served upon a prisoner, after the 
 commencement of the assizes at which he is to be tried for felony, is too late. Sex v. Eow- 
 arth, 4 Carr. & Payne. 254. It should be given a reasonable time before the assizes. Id. 
 When the party does not live at the assize town, it should be served before the commission 
 day. 1 Mood, k Rob. 259. Rose. Cr. Ev. 11. 
 
 [2] The deceased was robbed, and stabbed in several places, one of which was his bowels. . 
 He became so weak that he was brought into the city on a litter, where a surgeon dressed 
 
BY DYING DECLAEATIONS. 140—1 
 
 "Where an apothecary, upon being called In to a woman., and seeing 
 she was in a dying state, pressed her to say what she had done, for she 
 
 his wounds, and he died in a few days after. The surgeon deposed that one of the wounds 
 received by the deceased was such as generally proved mortal. The expressed opinion of 
 the deceased, as to his expectation of death, was not in evidence, nor the opinion ©f his sur-, 
 geon, as given to him ; yet, from the palpable danger of the case, the court inferred, his ap- 
 prehensions of death, and received his dying declarations, giving an account of the robbery. 
 State v. Monaquas, Oharlt. Rep. 16. But in another -case, although the wound was quite 
 dangerous, and plainly so, a large portion of the entrails being out, which were badly cut 
 and wounded, the surgeon believing from the first that the deceased could not live, the 
 court hesitated to receive the declarations of the deceased, till a witness had deposed to his 
 expression of an opinion that he should not live. King v. Corn,., 2 Yirg. Cas. 18, 80, 81. 
 And in another case, where the deceased was wounded, and died the next day, nothing ap- 
 pearing as to his opinion of his own danger before the declarations were made, they were 
 held inadmissible. The court said, " Declarations of a dying man have sometimes been re- 
 ceived ; but then they must be the declarations of a dying man, of one so near his end that 
 no hope of life remains; for then the solemnity of the occasion is a good security for his 
 speaking the truth, as much so as if he were under the obligation of an oath. But if, at the 
 time of making the declaration, he has reasonable prospects and hope of life, such' declara- 
 tions ought not to be received ; for there is room to apprehend he may be actuated by mo- 
 tive of revenge and an irritated mind, to declare .what possibly may not be true." The State 
 v. Moody, 2 Hayw. 31. In another case, the deposition of the deceased was taken imme- 
 diately after he had received a dangerous wound ; but he did not plainly mention, even to 
 his most intimate friends, that he thought there was no chance for his recovery, till three 
 days after. The court deeming it doubtful, on the testimony, whether, within the three 
 days, he felt morally certain that he must die, refused to hear any of his declarations except 
 those made after that time. The Peoples. Anderson, K Y. 0. & T., Edwards, C. J., presid- 
 ing, A. D. 1824 ; 2 Wheel. Cr. Cas. 390, 398. It is put by Evans, that the despair of the 
 deceased may be inferred from his declarations contemporary or previous to the statement 
 proposed as evidence to the jury, or from his situation being such as necessarily to induce 
 that impression. 2 Ev. Poth. 293, 294; and see Trant's case, Macnally's Ev. 385. 
 
 Before the judge decides, he hears all the deceased said respecting the danger in which 
 he considered himself; and he should be satisfied that the declaration was made under an 
 impression of almost immediate dissolution. It is not enough that the deceased thinks he 
 shall ultimately never recover. Thus, the deceased being operated upon by a quack sur- 
 geon with a recum bougie, (May 10th,) by which he received an injury, took to his bed, and 
 died in about a week, (May 11th.) On the evening of the 10th, he had declared to L., a 
 regular surgeon, that he had had such an injury in the bowels that he should never recover. 
 The surgeon endeavored to encourage him, really thinking him not in danger of dying; but 
 he persisted in saying he felt satisfied he should never recover. Hullock, B., rejected the 
 proposed declaration as evidence against the quack, who was indicted and on his trial for 
 manslaughter. Bex v. Van Butchell, 3 Oarr. & Payne, 629 ; and see Rex v. Callaghan, Mac- 
 nally's Ev. 385. 
 
 On the trial of an indictment for the murder of Jane White, by administering corrosive 
 sublimate, her surgeon testified thus: "I told the deceased she would not recover, and sho 
 was perfectly aware of her danger. I told her I understood she had taken something. She 
 said she had, and that damned man had poisoned her. I asked her what man, and she said 
 Crockett. She said she hoped I would do what I could for her, for the sake of her family. 
 I told her there was no chance of her recovery.'' Bosanquet, J. : " This shows a degree of 
 hope in her mind. To render a declaration of this kind admissible, she must have had the 
 impression on her mind of an almost immediate dissolution." Sex v. Crockett, 4 Carr. & 
 Payne, 544. 
 
 The surgeon was clear that the deceased was mortally wounded, on first seeing him ; am! 
 the deceased told the Surgeon he thought so, and expressed a consciousness that he should 
 
140 — 2 ' EVIDENCE. 
 
 could not live twenty-four hours unless proper relief was afforded to 
 her, and she then told him what she had taken and who gave it to her ; 
 
 not recover to several witnesses, and was constantly at prayer in the intervals of being ea- 
 sier from pain. His declarations, after this proof given, were received against the.prisoner, 
 though, to the witness who heard them, the deceased made use of expressions indicating an 
 expectation of surviving; as that if his brother (the prisoner) would go off, where he would 
 never more be heard of, he, the deceased, would forgive him ; and the witness thought the 
 deceased then expected to live. The declarations received against the prisoner were made 
 a few hours after the surgeon had dressed the wound and given the deceased his opinion 
 that he would die, and after the deceased had expressed the same opinion to another wit- 
 ness. Gibson v. Com., 2 Virg. Cas. Ill, 116, 111. 
 
 Immediately, and on the evening after being wounded, which was eleven days before his 
 death, the deceased declared to his nurse that he was robbed and killed, and could not 
 get the better of it, and persevered in these and the like declarations to her till his death, 
 though a surgeon was called to him the evening after the wound, who gave him hopes of 
 life till just before his death : but he told him there was danger. He did not express a con- 
 sciousness that he must die, to the surgeon. Held, that his declarations as to the facts at- 
 tending the homicide, made eleven days before his death, after the declarations to the nurse, 
 and his declarations as to the homicide made subsequently, were admissible in evidence, 
 though they were made before the surgeon told him his state was hopeless. Bex v. Mosely, 
 By. & Mood. Cr. Cas. 97. 
 
 On the trial of an indictment against Poll, a domestic of S. Skinner, for poisoning him, it 
 was ip evidenee that he died on Thursday ; and his declarations from the, Sunday previous, 
 up to his death, were offered in evidence for the state. During that interval, he was evi- 
 dently sick from the effect of poison, and stated his belief that he should die, though he was . 
 occasionally better. He said he was poisoned ; and, as he believed, by Poll, who gave him 
 something in his food and drink. His declarations were held admissible, being made at 
 times when he despaired of a recovery. State v. Poll and Lavina, 1 Hawks, 442, 518, 519. 
 But the court do not mean to be understood as sanctioning the declaration of belief as to the 
 person poisoning, as proper evidence. 
 
 In one case, the deceased, though she had not expressly intimated a word of apprehen- 
 sion to her aunt, who attended her, or any other person, yet detailed shocking circumstances 
 concerning a rape which had been committed upon her, and soon after died of the injury, 
 it appearing that she had, previous to this detail, confessed, been absolved, and received 
 extreme unction from a priest, this was considered sufficient evidence that she had given 
 herself up to die soon; and the declarations were received. Bex v. Mintoh, Macnally's Ev. 
 386. 
 
 These declarations, made antecedent to the stroke which caused the death, are of course 
 not admissible. Maryland v. Bidgley, 2 Harr. & M'Hen. 120. 
 
 Various other questions of competency may doubtless arise, after the court shall have 
 determined favorably upon the witness' condition. If the statement come from the deceased 
 as mere matter of opinion or belief, (State v. Poll, supra, 2 Ev. Potlu 293 ; 4 Stark. Ev. 461,) 
 it would be inadmissible. So, if the deceased be disqualified by conviction of an infamous 
 crime, his declarations cannot.be heard. Indeed, he is to be treated, not only in respect to 
 competency, but (as we shall see) credibility, the same as a witness proposed to be sworn 
 upon the stand. But it has been held not an unqualified ground for excluding the declara- 
 tions, that they are answers to leading questions. Where the deceased lay, the greater part 
 of the interval between tho wound and his death, unable to speak at all, and when able, 
 only to utter a word or two, he was asked, Did P. V. (the prisoner) strike you first ? to 
 which he answered yes, sir; Did P. V. stab you? to which he answered yes, sir; these de- 
 clarations were held admissible. Vass v. Com-, 3 Leigh, 786. Ho was immediately asked 
 a fourth question, which he was unable to answer; but it not appearing that the other an- 
 swers wero intended to be qualified by him, in which purpose he was interrupted, they were 
 received, though it would have been otherwise, had this appeared. Id. 
 
BY DTING DECLARATIONS. 140—3 
 
 but at that moment she was a good deal relieved from pain, -which the 
 apothecary attributed to mortification, and in fact she died in an hour 
 afterwards ; the judges thought that it did not sufficiently appear that 
 she was conscious that she was in a dying state when she made this 
 declaration ; on. the contrary, she seemed to think that if she told what 
 she had taken, she might have relief and recover ; they therefore held 
 that the declaration ought not to be received.(a) In a similar case, 
 where a surgeon told the deceased that she would not recover, and she 
 was aware of her danger, but said she hoped he would do what he 
 could for her for the sake of her family ; from the expression 
 of hope, *Bosanquet, J. held, that a declaration made by her [*141] 
 at the time, could not be received in evidence ; that to make 
 such a declaration evidence, it must appear' that the deceased had the 
 impression on her mind of almost immediate dissolution.(5) But if the 
 declaration be made under such an impression, the fact of the party 
 afterwards living for some days, will not affect the admissibility of the 
 evidence ;(c) and on the other hand, if the deceased had not at the time 
 that impression, his declaration is not evidence, although he may have 
 died in an hour after making it.(cf) Where the deceased was a child 
 of ojnly four years old, Parke, J. held her dying declarations not to be 
 evidence, because from her tender age it was impossible she could en- 
 tertain that idea of a future state, which is necessary to make such a 
 declaration admissible.(e)[l] 
 
 (a) Welboum's case, 1 East, P. C. 358. (d) Welbmrn's case, swpra. 
 
 (b) R. v. Crockett, 4 Car. & P. 544. ' (e) R. v. Pike, 3 Car. & P. 598. 
 
 (c) R. v. Bonner, 6 Car. & P. 386. 
 
 [1] The general principle on which, this species of evidence is admitted is that they are de- 
 clarations made in extremity, when the party is at the point of death and every hope of this 
 world is gone ; when every motive to falsehood is silenced, and the mind is induced, by the, 
 most powerful considerations to speak the truth. A situation so solemn and so awful is 
 considered by the law as creating an obligation equal to that which is imposed by a positive 
 path, administered in a court of justice. Per Eyre, C. B. 1 Leach, 202, in Woodcock's case. 
 
 The subject of dying declarations, and the cases in which they are admissible in evidence, 
 have been already mentioned. As it is necessary that the party making them should not 
 only be in actual danger, but aware of it, and without expectation of recovery, justices visit- 
 ing persons who have been wounded or beaten so as to endanger their lives, should see that 
 they are made fully aware of their dangerous state, and should impress upon them the solemn 
 and awful nature of their situation, and the religious obligation resting upon them to speak 
 the truth without anger or passion of any kind. Smythe, 236. And not only for the pur- 
 pose of ascertaining the party's sense of his danger, but also the degree of his observation 
 and recollection, the evidence as to which may afterwards materially affect his declaration, 
 the most minute attention will be necessary. The very sense of danger, while it induces an 
 obligation to speak the truth, may agitate and weaken the understanding, and the confusion 
 and surprise connected with the object of the declaration, and the decay of nature necessarily 
 resulting from a mortal injury, tend to impair the distinctness of the memory and perception, 
 and may lead to a statement which, however sincere, may be fatally erroneous. Pothier, 
 by Evans, 293 ; Phil. Ev. 305. 
 
141 EVIDENCE. 
 
 These dying declarations must not be confounded with the deposi- 
 tions taken by a justice of the peace, in writing, upon path, in the pre- 
 
 A dying declaration is properly taken without oath, even when made before a magistrate ; 
 nor, in fact has the magistrate, thus acting, extra-judicially, any authority to administer such 
 an oath. 1 Leach, 503 ; 4 Black. Com. 137 ; 1 Nun. & Walsh. 365. The declaration, how- 
 ever is not inadmissible because it was made under the additional, although useless, obliga- 
 tion of an oath thus extra-judicially administered. 2 Stark. Ev. 45S, 459 ; Phil. Ev. 302 ; 1 
 Leach, 500. 
 
 In taking a dying declaration, the presence of the accused is unnecessary, and the neces- 
 sity of cross-examination is dispensed with, from the supposed absence of any motive for 
 falsehood, in the party making the declaration. 1 Phil. Ev. 235; 2 Stark. Ev. 461 ; 1 id. 
 101. It is no objection jn point of law, to a declaration, that it was made in answer to ques- 
 tions; though solicitations naturally weaken the effect of the evidence. 7 Car. & P. 238 ; 
 1 Leach, 503 ; 1 Str. 499. 
 
 The declarant should not be bound over to prosecute ; for although that may be said to 
 be the act of the magistrate rather than of the party, still his submitting to be bound creates 
 a presumption inconsistent with an expectation' of immediate dissolution, on the part of the 
 declarant. 1 Nun. & Walsh. 365 ; Sex v. Crawley, 1 Craw. & Dix. C. C. 243. 
 
 It has been already stated that dying declarations need not necessarily be reduced to 
 writing. But as such declarations, when depending on fallible memory, and verbally reported, 
 are liable, as other statements, to be misunderstood or misreported, it is said to be usual, and 
 should never be omitted when circumstances and the situation of the party will permit, to 
 reduce the declaration to writing, for greater precision, and this should be done at" the time 
 it is made, and in the very words, or as nearly as possible in the words of the declarant ; 
 and it should be read over to him in order to ascertain that it is correct. 
 
 The same principles of law are applicable to the contradictory statements of persons in 
 extremis, as to those of a witness under examination on oath. M'Pherson v. State, 9 Terger, 
 279. Where the court below charged the jury, " that if they found that the deceased in her 
 dying declarations made contradictory statements, that they were not to be governed by the 
 rules of evidence in relation to contradictory statements made hy a witness," it was held that 
 this charge was erroneous. Ibid. 
 
 It seems that evidence is admissible, on part of the defence, to impeach the character of 
 the deceased for truth ; he standing on the same footing as a witness called into court and 
 there examined ; and, in one case, where the dying declarations of the de ceased were 
 admitted to show- that the defendant, with intent to produce on her an abortion, had ad- 
 ministered to her oil of tansy, which was the cause of her death, the defendant was allowed 
 to show that she was considered a woman of loose character and light reputation. People 
 v. Knapp, per Edmonds, X, MSS. ; see Carter v. People, 2 Hill's N. T. R. 317. It has been 
 held, however, that it is not competent for the prisoner to prove that before the affray the 
 deceased had expressed a violent hatred to him, and a disposition to do him injury, or that 
 he was very hostile to him. State v. Varney, 8 Boston Law Reporter, 562. 
 
 Where dying declarations, made under the belief of impending death, are inconsistent with 
 each other, it is the duty of the jury to weigh them, and to determine which or whether 
 either is to be believed; and if the charge of the court takes this duty from them, or if the 
 court undertakes to determine these questions, it is error. Moore v. State, 12 Ala. 764. 
 
 To the principle that, in order to render these declarations in arlicuh mortis admissible, 
 they should come from a witness who would be competent if on the stand, may also be cited 
 the case of Hex v. Pike, (3 Carr. & Payne 598.) In this case the declarations were made by 
 a child only four years old to her mother, and held inadmissible because so young a person 
 could not have had that idea of a future state which would render her competent. On the 
 other hand, upon the principle that the wife may testify in respect to violence by her hus- 
 band committed against her person, if homicide be imputed as the result of such violence, 
 her dying declarations are receivable. Pennsylvania v. Stoops, Addis. 381. Woodcock's 
 case, Leach, 3rd ed. 503, S. P. 
 
BY DYING DECLARATIONS. 141—1 
 
 sence of the accused, from a person really in a dying state, and who 
 dies shortly after ; for in that case, the deposition is receivable in evi- 
 
 After the testimony shall have been received as competent, its credibility is jet fully open 
 to the observations of the counsel and the court, and the consideration of the jury. An 
 Irishman and his wife were seen riding in a wagon, he striking- her with a stick. On stop- 
 ping after a few miles, the wife was taken ill, and died within a few hours, having declared 
 that her husband had, by flogging her, caused her death. She expressed a confidence that 
 she must shortly die, and an anxiety that her husband should be pursued and punished. 
 The declarations of the deceased were received against the husband on the trial, for the mur- 
 der of his wife, and the jury convicted him. On his case being presented to the governor, 
 (Throop,) and on his excellency conferring with his judicial council, the prisoner's sentence 
 was, on a question of law, commuted for punishment in the state prison, as for manslaughter 
 in the first degree. But the council also expressed themselves dissatisfied with the declara- 
 tions, as probably indicative of a quarrel, hard feeling, and perhaps malice on the part of the 
 deceased, and would, most likely, have recommended an absolute pardon, had it not been 
 for other strong evidence in the cause, which was nearly able to sustain the conviction of 
 itself. The People v. Mason, Saratoga oyer and terminer, Nov. 1831, Cowen, 0. Judge, pre- 
 siding. 
 
 In making up their minds on the credibility of these declarations, the jury have been 
 allowed to travel over the same ground which the court had occupied in seeing whether it 
 was competent Tranfs case, Macnally's Ev. 385. Sir W. D. Evans, (2 Ev. Poth. 294, 
 supposes that in John's case, (1 East's P. C, c. 2, § 24,) the judges meant to deny this right, 
 when they declare that it ought not to be left to the jury to say whether the deceased thought 
 she was dying or not. Perhaps that was said, though the expression, is certainly quite 
 general, with a view to the question of competency merely. It was very strong to say that 
 the jury might not finally conclude and the deceased labored under no apprehension of death, 
 when they came to measure her credibility ; and we should think, with the learned com- 
 mentator, (2 Ev. Poth. 295,) that it is without the support of analogy. Though the court 
 should receive a witness as competent in his religious principles, yet he might, it is presumed, 
 be so far impeached as to destroy all credibility, and warrant the jury finally in saying that 
 he was destitute of religious principle. So should the expectation of death appear, on the 
 whole to have been affected for the purpose of revenging » quarrel in the pursuit of the 
 offender, might not the jury make great deductions from credibility, though competency had 
 before been prima facie made out ? Other considerations are also due to this question of 
 the declarant's credibility. " Strongly as his situation is calculated to induce the sense of 
 obligation, it must also be recollected that it has often a tendency to obliterate the distinct- 
 ness of his memory and perceptions ; and, therefore,- whenever the accounts received from 
 him are introduced, the degree of hiB observation and recollection is a circumstance which it 
 is of the highest importance to ascertain. Sometimes the declaration is of a matter of judg- 
 ment, of inference and conclusion, which, however sincere, may be fatally erroneous ; the 
 circumstances of confusion and surprise, connected with the object of the declaration, are to 
 be considered with the most minute and scrupulous attention ; the accordance and consis- 
 tency of the fact related, with the other facts established by evidence : is to be examined 
 with peculiar circumspection, and the awful consequences of mistake must add their weight 
 to all the other motives for declining to allow an implicit credit to the narrative, on the sole 
 consideration of its being free from the suspicion of wilful misrepresentations." 2 Ev. Poth. 
 293. 
 
 Mr Starkie, after quoting these remarks of Sir Wm. D. Evans, with approbation, adds, 
 " that this seems to be the only instance in Which- evidence is admissible against a prisoner 
 who has not had the power to cross-examine, an anomaly, which in itself calls for great 
 caution and circumspection in the use and application of such evidence. Finally, it has never 
 been received except in cases of murder, where if the dying person were certain as to tho 
 author of the violence; yet in the case of a quarrel and conflict, he might bo under a strong 
 temptation to give a partial account of the transaction, although all motives of personal hos- 
 
141 — 2 EVIDENCE., 
 
 dence under stat. 11 & 12 Vict. c. 42, s. 17, as the deposition of a de- 
 ceased witness, and it is wholly immaterial whether the witness, at the 
 time he made it, was aware of his danger, or entertained any apprehen- 
 sion of death. (a) 
 
 SECTION" II. 
 
 WRITTEN EVIDENCE. 
 
 (a) Acts of Parliament. 
 
 Public acts of parliament are never proved, as all judges are bound 
 judicially to take notice of them ; and therefore, when we see a copy 
 of a public act of parliament, printed by the Queen's printer, used upon 
 a trial, we must consider it, not as evidence, but used merely to aid the 
 judge's recollection. And the same of all local acts, containing a clause 
 either making them public acts, or directing the judges to* notice them 
 judicially.[2] 
 
 (a) See Badbourne's case, 1 East, P. C. 356. 
 
 tility had ceased. In other cases, it is far from improbable that he would attribute the fact 
 to some person whom he suspected to be his enemy, when, if his grounds for supposing so 
 could have been investigated, they might have turned out to be very unsatisfactory." 
 
 [2] By the revised statutes of New- York, the state printer is required to publish forthwith, 
 in the state paper, every certified copy of a law which shall be delivered to him by the 
 secretary of state for that purpose. 1 R. S. 183, § 6. The state printer is to furnish a proof 
 of every law , so published, to the secretary of state, to be by him revised and corrected. Id. 
 § "7. And every law, so published, may be read in evidence from the paper in which it shall 
 be contained, in all courts of justice in the state, and in all proceedings before any officer, 
 body, or board, in which it shall be thought necessary to refer thereto, until three months 
 after the close of the session in which it became a law. , Id. § 8. All laws passed by the 
 legislature, may be read in evidence from the volumes printed by the state printer. Id. 184, 
 § 12. By an act of Dec. 10th, 1828, it is made the duty of the revisors, or any two of them, 
 to certify the revised statutes to have been examined and compared by them with the original 
 acts, and with the acts amending such originals ; and to deposit a copy so certified, in the 
 office of the secretary of state, which shall be conclusive evidence of such statutes. 2 E. S. 
 118, § 13. The certificate is required to be printed in each copy of the revised statutes, 
 under the direction of the revisors ; and every copy so printed by the printers employed for 
 that purpose, in which such certificate shall be inserted, is allowed to be read in evidence. 
 Id. § 14. By an act passed April 19th, 1830, (L. N. T. session 53, p. 285, § 1,) it is provided, 
 that any person or persons in the state, may print and publish the whole, or any part of the 
 revised statutes, but to entitle a copy of a law so published to be read in evidence, there must 
 be contained in the same book or pamphlet, a certificate of the revisors, that such a copy is 
 a correct transcript of the text of the revised statutes, as published, except such typographical 
 errors in the original as may be corrected in such copy, and except such parts as shall have 
 been altered by acts of the legislature ; and that with respect to such parts, it conforms to 
 the acts by which such alterations shall have been made. A copy of any of the statutes of 
 
ACTS OF PARLIAMENT. 141—3 
 
 Private acts, or local and personal acts, not containing any such clause 
 may be proved, either by an examined copy of the inrolment, — or by 
 
 New- York, certified by the secretary of state, and authenticated by bis seal of office, would 
 doubtless be good evidence of the existence of such statute. See 1 R. S. 1S6, §§ 1, 4. 
 
 By the Constitution of the United States it is provided that, "full faith and credit shall be 
 given, in each state, to the public acts, records and judicial proceedings of every other state." 
 And congress may, by general laws, prescribe the manner in which such acts, records and 
 proeeedinga shall be proved, and the efieot thereof," By the acts of oangress o.f \190 and 
 1804, this provision is carried into operation. 
 
 Legislative acts are to be authenticated by the great seal of the state, and the cestificate 
 of the secretary, Judioial records are to be authenticated by the attestation of the clerk, the 
 seal of the court, and the certificate of the presiding judge that the attestation is in due form. 
 All other office records are to be authenticated by the attestation of the keeper thereof, with 
 his official seal, if he have any, and the certificate of the presiding judge of the proper court, 
 or the Governor or secretary of state, that the attestation is in due form of law ; which cer- 
 tificate, if given by a judge must be accompanied by the certificate of the clerk, under the 
 seal of the court, that the judge is duly qualified and commissioned ; otherwise it must be 
 under the great seal of the state. 
 
 By the acts above referred to, congress has declared that they shall have, in every state 
 and territory in the Union, the same faith, oredit, form and effect, as they have by law or 
 usage, in the state or territory from which they are taken. By this provision, however, it 
 is not to be understood that the laws of one state are binding in another, unless made so by 
 the latter. 
 
 The acts of congress are published, by authority, as directed by law in certain newspapers, 
 printed in different places, throughout the Union ; and in pamphlets, issued yearly, contain- 
 ing the laws passed at each preoeding session. They are to be found in various compilations 
 and digests published by individuals ; and which are admitted as evidence in courts of jus- 
 tice ; as Gordon's Digest, Ingersoll's Digest, Story's Digest. 
 
 In the several states provision is made by law for publishing the laws of the states 
 respectively, in annual pamphlets, containing the laws enacted in the particular year ; in 
 particular newspapers ; and, in some of the states in compilations of all the laws of a state, 
 made as prescribed by act of the legislature, 
 
 A printed pamphlet containing legislative acts not authenticated by the seal of the state, 
 is not evidence in another seate, uader the act of congress. 1 Peters' Rep. 352, 
 
 "When the great seal of a state is affixed to an exemplification of an act of the legislature, 
 the attestation of a public officer is not required, under the act of congress. 4 Dall. 413, 
 416. 
 
 A copy of an Act of Assembly of another state, contained with other acts in a pamphlet, 
 printed by the printers of the commonwealth, was held to be good evidence. X Dall, 462 ; 
 6 Binn. 321. 
 
 Copies of the laws of Pennsylvania, printed under the authority of the legislature, are 
 evidence in this state, whether the laws be public or private. 6 Binn. 321, 
 
 The written or statute laws of foreign countries must be proved by the laws themselves, 
 if they can be procured ; if not inferior evidence of them may be received. Unwritten laws 
 or usages may be proved by parol evidence, and when proved, it is for the court to construe 
 them, afld to decide upon their effect. 1 Peters' Rep.,225, 229 ; 15 Serg, & R. 87. 
 
 And it lies upon the party objecting to parol proof, to show that the law was written. 
 15 Serg. & R. 87. 
 
 In Pennsylvania, a copy of the laws published annually by the authority of the legislature 
 is evidence of the statutes contained in it, whether they be publio or private. 2 "Watts & 
 Serg. 156. : v\ 
 
 Printed books professing to be the statute laws of a sister state are admissible as prima 
 facie evidence of the laws of that state. . 2 Pa. State Rep. 85. 
 
 The rule, in New York and Pennsylvania, with respect to foreign laws, is that their exis- 
 
 48 
 
141 — 4 EVIDENCE. 
 
 a printed copy, purporting to be printed by the Queen's printer, or the 
 printers of either house of parliament, without further proof.(a) So 
 the statutes of Ireland, previous to the union, may be proved in the 
 courts in this country, by the copies printed and published by the 
 Queen's printer.(6)[3] 
 
 (a) 8 & 9 Vict. c. 113, s. 3. 
 (ft) 41 G. 3, TJ. K. u. 90, s. 9. 
 
 tenoe is to be proved as other facts ; no presumption is to be made in regard to them. In 
 Massachusetts it was decided that an offence at common law was presumed to be against 
 the law of New York. 1 Pick. 415. 
 
 The public seal of a state, affixed to the exemplification of a law, proves itself; it is a 
 matter of notoriety, and will be taken notice of as a part of the law of nations acknowledged 
 by all. 1 Shep. 299. 
 
 A judicial record can only be proved by itself or a legally certified copy. 4 Pike's Rep. 
 129. 
 
 The legal mode of authenticating a state law is by the state seal. 3 Harring Rep. 1 1. 
 
 The seal of another state affixed to a copy of an act of its legislature, for the purpose of 
 authenticating the same, pursuant to the act of congress prescribing the mode of authenti- 
 cating the public acts of the several states, proves itself, and imports absolute verity, and it 
 is presumed, until the contrary appears, to have been affixed, by the proper officer. Per 
 Bronaon, C. J., 1 Denio's Eep. 31&; New York. 
 
 Printed statute books of another state, purporting to be published by the authority of 
 that state, are prima facie evidence of the statutes they contain; in Indiana, 5 Blackf. 3T5 ; 
 in Mississippi, 1 How. Miss. Bep. 220 ; in Missouri, 8 Miss. Bep. 421 ; in Alabama, 9 Port. 
 9 ; in Kentucky, 1 Monr. 5"?6. 
 
 The printed Statute laws of other states are not evidence, in Delaware, without other au- 
 thentications. 2 Harring. 34. So also in North Carolina. 2 Hawks, 441. 
 
 A digest of the laws of another state, published by a private person is not admissible as 
 evidence of the law. In Delaware. 3 Harring. 11. 
 
 The written laws of a sister state cannot be proved by parol. 5 Blackf. 3?5. 
 
 A volume of statutes, purporting to be the statutes of a sister state, cannot be proved to 
 be such by the testimony of an attorney or counsellor of that state. They must be proved 
 as directed by act of congress, or at least by a sworn copy. 3 Harring Rep. 184. Delaware. 
 
 Where a defence is based upon the provisions of a statute of another state, in order to 
 make the defence available, the statute must be produced and proved. 6 Smedes & Marsh. 
 44. In Mississippi. 
 
 The printed copies of the acts of congress, transmitted to the executives of the several 
 states to be distributed among the people, are proper evidence of the statutes therein con- 
 tained without other authentication. 5 Leigh. 4*11. 
 
 [3] In Viner's Abr. vol. 12, p. 81, it is stated, that "a private act, printed among the 
 public acts, hath been allowed in evidence.'' The general rule, however, in England, is the 
 other way, and the usual proof is by means of a copy, proved upon oath to have been ex- 
 amined with the parliament roll. A private act may also be proved by an exemplification 
 under the great seal. 1 Starkie's Ev. 116, 111, 6th Amer. ed., BuU. N. P. 225. Roscoe's 
 
 Ev. 53. 
 
 In Pennsylvania, a printed volume purporting to have been printed by Francis Bailey, 
 under the direction of T. M. Thompson, secretary of the commonwealth, pursuant to a reso- 
 lution of the legislature, has been held good evidence of a private act. Biddis v. James, 6 
 Binn. Bep. 321. Indeed, the distinction in this respect, between private and public acts, has 
 there been entirely abolished. Id. 326, 1. See also Kean v. Bice, 12 Serg. & Eawle, 203 ; 
 Tlwnvpson v. Musser, 1 Dall, Rep. 462. Y 
 
OTHER RECORDS. 142 
 
 (b) Other records. 
 
 Records of any of the Queen's courts at *Westminster, may [*142] 
 be proved by an examined copy, that is to say, by a copy that 
 is sworn to be a true copy by a person who examined it with the origi- 
 nal. And where an office copy was thus sworn to be examined with 
 the original, but it appeared to have a number of contractions and ab- 
 breviations in it, " pnl este," for personal estate, and the like, — it was 
 holden that it could not be given in evidence as a copy.(a) So, the 
 record of an indictment at the assizes or sessions, may be proved by 
 an examined copy ; or the record itself, if in the court, may be pro- 
 duced. And for this purpose the record must be made up ; for the 
 indictment itself cannot be given in evidence ;(&) nor can you prove 
 the sentence that has been passed upon a party indicted, in any other 
 manner than by the record or an -examined copy of it.(c) So, to prove 
 an order of a court of quarter sessions, the record must be made up ; 
 and it is then proved by an examined copy, or by the production of the 
 record itself. "Where the sessions book was produced in such a case, 
 but the clerk of the peace said he would have made up the record on 
 parchment if it had been bespoken, Parke, J., refused to receive the 
 book as evidence.^) But on the other hand, where the entry of the 
 order in the sessions book had a regular caption, and was in the present 
 tense, and in every other respect as a record, and it was proved that 
 no other record ever was made up, the court held that the book was 
 legal- evidence of the order.(e) So, a conviction before a magistrate is 
 proved by an examined copy ;(<?) or the conviction may be produced. 
 
 (a) R. v. Christian,. Car. & M. 388. (d) R v. Ward, 6 Car. & P. 366. 
 
 (6) R v. Smith et al, 8 B. & C. 341. R. v. (e) R v. Teovley, 8 Law J. 9 m. 
 Thring, Ry. & M. 171, 5 C. & P. 507.J (g) See 5 Car. & P. 38. 1 Arch. P. A. 546. 
 
 (c) R. v. Bourdon, 2 Car. & K. 366J 2 Id. TO. 
 
 So, it seems, in the supreme court of the United States; and there, also, a printed volume, 
 purporting to have been printed by authority, in Virginia, has been deemed evidence of a 
 private act. Young v. The Bank of Alexandria, 4 Cranch, 387, 8. See also United States v. 
 Johns, 4 Dallas' Rep. 412 ; 1 Wash. C. C. Rep. 363, SI C. 
 
 Whether such is the doctrine in Vermont, quere: (see Pearl v. AUen, 1 Tyl. Rep. 311, 
 313. 
 
 In Kentucky, the courts will judicially take notice of private as well as public acts, with- 
 out their being formally proved in any way. Hdtbert v. Skyles, 1 Marsh. Ken. Rep. 368, 9. 
 Farmers and Mechanics Bunk v. Jarvis, 1 Monroe, 4, 5. 
 
 In Massachusetts, the printed book of the printers to the general court, has been held not 
 admissible as evidence of a private act. An exemplification seems there to be necessary. 
 The Proprietors of the Kennebesk Purchase v. Cail, 1 Mass. Rep. 483. 
 
 In New York, also, the general rule was formerly admitted to be, that the printed statute 
 book could not be used as evidence of private acts. But the rule was held not to apply, 
 where the party against whom the evidence was adduced, was the individual for whose 
 benefit the act was passed. Duncan v. Duloys, 3 John. Cas. 125. But now, by statute, all 
 laws passed by the legislature may be read m evidence from the volumes printed by the state 
 printer. 1 R. S. 184, § 12. 
 
142 1 EVIDENCE. 
 
 And if it recite the information, such examined copy or original will 
 be evidence of that also.(a)[l] 
 
 (h) 5 Car. & P. 38. 
 
 [1] Whether an instrument produced is in truth a record or not, has been held to be 
 always open to inquiry. Thus, in Briery. Woodbury, (1 Pick. Rep/ 362,) parol evidence 
 was admitted to show that an execution which was returned and filed, had been fraudulently 
 altered, by inserting a direction to a constable. "It cannot be doubted,'' says Parker, J., 
 delivering the opinion of the court, " that any thing produced as a record may be shown to 
 be forged or altered; if it were not so, great mischiefs might arise. A record is conclusive 
 evidence, but what is or is not a record is matter of evidence, and may be proved like other 
 facts." Id. And if words have been struck out of a record so as to render it erroneous, 
 witnesses may be examined to show such words were improperly struck out ; but not to 
 falsify the record by showing that an alteration, whereby the record was made correct, was 
 improperly made. 2 Bv. Poth. 154. Dickson v. Fisher, 1 Bl. Rep. 664 4 Burr. 2267, S. 
 a Adams v. Bete, 1 "Watt's Rep. 425, S. P. 
 
 A minute book in which an entry is made of the proceedings of the quarter sessions, and 
 from which the roll, containing the record, is subsequently made up, is not a record, nor in 
 the nature of a record, so as to be admissible evidence to prove the facts there stated. Bex 
 v. Bellamy, Ryan & Mood. N. P. C. 171. Roscoe's Ev. 54. Roscoe's Crim. Ev. 154. See 
 Cooke v. Maxwell, 2 Starkie's KT. P. Rep. 183. Where, in order to prove an allegation that 
 an indictment for felony had been preferred, the indictment itself, (which was in another 
 court,) indorsed, "a true bill," was produced by the clerk of the peace, together~with the 
 minute book of the proceedings at the sessions at which the indictment was found; the 
 king's bench held, that it was inadmissible, though no record had been made up ; and that to 
 maintain the allegation, the record should be regularly drawn up, and an examined copy 
 produced. Such, said Lord Tenterden, has always been the practice. And per Bailey, J., 
 the record itself, or an examined copy, is the only legitimate evidence. Rex v. Smith,- 8 
 Barnw. & Cress. 341. Roscoe's Ev.- 64. Roscoe's Crim, Ev. 154. So, an allegation that 
 the grand jury at the sessions found a true bill, is not proved by the bill itself, with an in- 
 dorsement upon it, but a record regularly drawn up must be produced, or an examined copy 
 of it. Porter v. Cooper, 6 Carr. & Payne, 354. Roscoe's Crim. Ev. 154. On an indictment 
 for perjury, in order to- prove the allegation that an appeal came on to be heard at the ses- 
 sions, the sessions-book was produced by the deputy elerk of the sessions : on objection 
 being made, the deputy clerk was asked, whether, on being applied.to, he would have drawn 
 up the record of the appeal on parchment, as if he were making a return to a certiorari, to 
 which he answered in the affirmative: it was then stated by the clerk of the assize, thatat 
 the assizes, the judgment roll is not the record ; but that from it, and- from the indictment, 
 a record can be made up. And per Park, J.: "I am of opinion the , objection is fatal. 
 There is certainly a great difference between the case of an indictment and that of an ap- 
 peal ; yet still an appeal is a matter before a court of record, and we ought to consider the 
 importance of having the proper evidence : for if it was not heard before a court of compe- 
 tent jurisdiction, perjury cannot be omitted on the hearing of it. The defendant must be 
 acquitted. Sex v. Ward, 6 Carr. & Payne, 366. So in Rex v. Thring, (5 Carr. & Payne, 
 507,) the prisoner was indicted for perjury committed at the quarter sessions, and to prove 
 that the proceedings alleged were had before the sessions,, the minute book was produced 
 by the officer of the sessions. Gurney, B., inquired if the record was made up on parch- 
 ment, and was answered in the negative by the counsel for the prosecution, who added, that 
 ft was not considered necessary. Gurney, B. : " The minute book of the court of quarter, 
 sessions is not evidence The record should be made up on parchment, and then an exam- 
 ined copy of it would be evidence. 1 ' 
 
 A plea of outer fois convict must be proved by the record regularly made up ; and the in- 
 dictment with the finding of the jury, indorsed upon it by tlie proper officer, is not suffi- 
 
OTHER RECORDS. 142 — 2 
 
 To the above rule, that indictments and convictions must be proved 
 by the record or an examined copy, however, there are the following 
 exceptions : 
 
 1. As proof of indictments against a person sentenced to transporta- 
 tion, for being at large before the expiration of his sentence, or against 
 a person for rescuing or attempting to rescue him, it is enacted by stat. 
 5 G-. 4, c, 84, s. 24, that the clerk of the court or other officer having 
 the custody of the records of the court where such sentence or order of 
 transportation shall Lave been passed or made, shall, at the request of 
 any person on His Majesty's behalf, make and give a certificate in wri- 
 ting, signed by him, containing the effect and substance only (omitting 
 the formal part) of every indictment and conviction of such offender, 
 and of the sentence or order for his or her transportation, (not taking 
 
 oient. Rex v. Bowman, 6 Carr. & Payne, 101. See the case of The State v. Benham, 1 
 Ccmn. Rep. 414. In Tooke's case, (25 How. St. Tr. 446.) the minutes of the court were re- 
 ceived to prove the acquittal of Hardy. This case is distinguished by Lord Tenterden from 
 the foregoing, on the" ground that the matter proved, by the minutes occurred before ihe 
 same court, sitting under the same commission. Bex v. Smith, 8 Barnw. & Cress. 341. 
 When the proceedings of inferior courts are sought to be proved, inasmuch as their proceed- 
 ings are not usually made up in form, the minutes will be admitted, if they are perfect and 
 omit nothing material. See Sex v. Smith, 8 Barn. & Cress. 341, 2. In Hyer's case, (6 
 City Hall Rec 39,) it was held, that to prove a record of conviction or acquittal, it was 
 necessary Fhat it should be under the seal of the court, signed by the . magistrate, before 
 whom the cause was tried: and that it should be produced by the cleric from the files of the 
 court. The. record sought to be introduced in this ease, was a record of the same court, 
 where the trial in which it was offered took place, and was rejected because it lacked the 
 above requisites. 
 
 By statute in New- York, a copy of the minute of any conviction, with the sentence of 
 the court thereon; entered by the clerk of any court, duly certified by the clerk in whose 
 custody such minutes shall be, under his official seal, together with a copy of the indictment 
 ou which such conviction shall have been had, certified in the same manner, shall be evi- 
 dence in all courts and places of such conviction, in all cases in which it shall appear by the 
 certificate of the clerk, or otherwise, that no record of the judgment on such conviction has 
 been signed and filed. 2 R. S. 739, § 10. It is also provided, that within ten days after 
 the adjournment of , any court at which any conviction for offences shall have been had, the 
 clerk thereof shall make out and certify a transcript of the entries in his minutes of all such 
 convictions and sentences thereon, and shall transmit the same to the secretary Of state. 2 
 R. S. '38, § 1. The secretary of state is to file such transcripts, and when required by the 
 attorney general or district attorney of any county, he shall furnish an exemplification of 
 such transcripts or a part thereof, which shall be sufficient evidence on the trial of any per- 
 son for a second or subsequent offence, of the conviction stated in such transcript. Id. § 8. 
 But neither the transcript nor the exemplification thereof, shall in any other case be evidence 
 of such conviction. Id, § 9. 
 
 Under a former statute, similar in its provisions to the Mi and 8th sections above cited, 
 (1 R. L. 462, K & R.) where an objection was made to the competency of a witness on the 
 ground of his having been convicted of an infamous offence, and it was shown that the 
 records of the" court where the conviction was had were lost or destroyed, a copy of the 
 transcript required to be sent to the exchequer by the above statute, was held to be the 
 next best evidence to show such conviction, and that parol evidence could not be resorted 
 to till it was shown that such transcript had not been filed. Hilts v. Colvin, 14 John. Rep. 
 182. 
 
142 3 EVIDENCE. 
 
 for the same more than Qs. 8d.,) which certificate shall be suffi- 
 [*143] cient evidence of the conviction *and sentence or order for 
 
 the transportation of such offender ; and every such certificate, 
 if made by the clerk or officer of any court in Great Britain, shall be 
 received in evidence, upon proof of the signature and official character 
 of the person signing the same ; and every such certificate, if made by 
 the clerk or officer of any court out of Great Britain, shall be received 
 in evidence, if verified by the seal of the court, or by the signature of 
 the judge or one of the jndges of the court, without further proof.(a) 
 
 2. As proof of a former conviction, upon an indictment for a subse- 
 quent felony, it is enacted by stat. 7 & 8 G. 4, c. 28, s. 11, that a certi- 
 ficate containing the substance and effect only (omitting the formal part) 
 of the indictment and conviction for the previous felony, purporting to 
 be signed by the clerk of the court or other officer having the custody 
 of the records of the court where the offender was first convicted, or 
 by the deputy of such clerk or officer (for which certificate a fee of 6s. 
 8d. and no more shall be demanded or taken,) shall upon proof of the 
 identity of the person of the offender, be sufficient evidence of the first 
 conviction, without proof of the signature or official character of the 
 person appearing to have signed the same. Where the certificate un- 
 der the statute stated that the prisoner had been indicted and convicted, ' 
 but did not state the judgment, Greswell, J., heldit to be insufficient.^) 
 
 3. As proof of a previous acquittal or conviction, it is enacted by 
 stat. 14 & 15 Vict. c. 99, s. 13, that whenever, in any proceeding what- 
 ever, it may be necessary to prove the trial and conviction or acquittal 
 of any person charged with any indictable offence, it shall not be ne- 
 cessary to produce the record of the conviction or acquittal of such per- 
 son, or a copy thereof, but it shall be sufficient that- it be certified or 
 purport to be certified under the hand of the clerk of the court or 
 other officer having the custody of the records of the court where such 
 conviction or acquittal took place, or by the deputy of such clerk or 
 other officer, that the paper produced is a copy of the record of the in- 
 dictment, trial, conviction, "and judgment, or acquittal, as the case may 
 be, omitting the formal parts thereof. It seems therefore that the rec- 
 ord for this purpose must be made up, although the formal parts need 
 not be included in the certificate. [1] 
 
 (a) See B. v. Jones, 2 Car. k K. 524. 
 (6) B. v. Aclcroyd et al, 1 Car. & K. 15S. 
 
 []] It is also provided by statute, that whenever any conviction shall be, had before, any 
 court of special sessions, held in any other county than New York, the magistrates shall 
 make a certificate of such conviction, briefly stating the offence charged, and the conviction 
 and judgment thereon, and if any fine has been collected, the amount thereof, and to whom 
 paid. This certificate is to be filed in the office of the county clerk within twenty days after 
 the conviction; and when so made and filed, such certificate, or a certified copy thereof, is 
 made evidence in all courts and places, of the facts stated therein. 2 R. S. Ill, s. 38, 39, 40. 
 
MATTERS QUASI OF RECORD. 143 
 
 (c) Matters quasi of record. 
 
 Bill, answer, depositions, and decree in a court of equity, are proved 
 by examined copies.(a) So, libel, answer, depositions and sentence in 
 the ecclesiastical courts, are proved by examined copies.(&) And the 
 same as to proceedings in the Admiralty court, (c) [2] 
 
 (a) Gilb. Ev. 49, 50, 56. (c) Com. Dig. Evidence, C. 1. 
 
 (6) Gilb. Ev. 66, 67. 
 
 It has been decided that a certificate of conviction in the form directed by the above sec- 
 tion of the statute, and which was filed in the clerk's office within the prescribed time, is 
 competent evidence of the facts therein stated ; although it does not contain evidence that 
 the court had obtained jurisdiction over the person of the prisoner. The People v. Powers, 7 
 Barb. 46,2. Such a certificate being made evidence, by statute, of the facts contained in it, 
 cannot be contradicted by parol evidence showing that there was in fact no trial and convic- 
 tion. Tet, it seems that a party may so far contradict a record of conviction by a court of 
 inferior jurisdiction, as to prove that the court had no jurisdiction of the offence, or of the 
 person of the prisoner. Ibid. 
 - [2] An examined or sworn copy, is, in general, to be proved such by one who has com- 
 pared it with the original. Kerns v. Swope,'2 Watts' Rep. 75. Hence the rule, that a mere 
 copy of a copy is not evidence. Whitacre v. M'Mhaney, 4 Munf Rep. 310 ; Ryves v. Brad- 
 dell, 1 Irish T. R. 184; United States v. Sherman, 1 Pet. C. C. Rep. 98 ; Norwood v. Green, 
 5 Mart. Eou. Rep. K S. 175. Where, however, a witness testified that a certain record of 
 a power of attorney was a copy of the original made by him, and that the copy produced 
 was a true copy of the record, having been compared with it by himself; held, that this was 
 riot the case of a copy simply, but the case of a second copy, verified as a true copy of the 
 original ; and therefore, it was admissible -as secondary evidence. Winn v. Patterson, 9 
 Peters' Rep. 663. The court said, that in point of evidence, this was precisely the same as 
 if the witness had made two copies at the same time of the original, and had then compared 
 one of them with the original, and the other with the first copy, which he found correct. 
 The mode by which he arrived at the result, that the second copy was a true one of the 
 original, might be more circuitous than that by which he ascertained the first to be correct ; 
 but that only furnished matter of observation as to the strength of the proof, and not as to 
 its dignity or degree. Id. See Robertson v. Lynch, 18 Johns. Rep. 451. Also, Kerns v. Swope, 
 2 Watts' Rep. 75 r 80. Winn v, Patterson, supra, would seem a warrant for. saying that no 
 discrimination is to be made between copies, as to the point of competency, on the ground 
 that one is more likely to be correct than another, provided the authentication of both 
 reaches back to the original. So far it goes to sustain the general proposition that there are 
 no degrees of secondary evidence. But Brewster v. Countryman, 12 Wend. 446, in some of 
 its dicta, at least, seems slightly the other way. There, a sworn copy of an agreement was 
 produced against the defendant, who had himself destroyed the original. The case states 
 that the plaintiff proved he had requested H. to make a copy of the agreement, and the 
 paper in question purported to be a copy in H.'s hand-writing ; a witness swore also, that 
 he had seen the original, and that the alleged copy was substantially the same. The court 
 held the copy inadmissible, on the ground that the best evidence was not produced. They 
 say the authenticating testimony was pretty strong, but that H.'s testimony, whose absence 
 was not accounted for, would be stronger; that the evidence produced showed there was 
 better evidence in the power of the party not produced, the very case in which secondary 
 evidence should not be received as sufficient. Id. 488, 9. The decision itself, in this case, 
 would seem in principle, to range along with those which forbid a resort to a circumstantial 
 or suspicious evidence, where that which is direct and positive is plainly within the party's 
 reach. See Den v. M'AUister, 2 Halst. R, 55; Bank of Utica v. MiUard, 5 Cow. Rep. 153, 
 158. 
 
143 — 1 EVIDENCE. 
 
 As to evidence of proceedings in the county courts : by stat. 
 [*144] 9 *& 10 Viot. c. 95, s. Ill, the entries in the clerk's book, or 
 a copy thereof bearing the seal of the court, and purporting to 
 be signed and certified as a true copy by the clerk of the court, shall at 
 all times be admitted in all courts and places whatsoever, as evidence 
 of such entries and of the proceedings referred to by, the same, and of 
 the regularity of such proceedings, without further proof. 
 
 The proceedings of other inferior courts, such as the court baron, &c, 
 are usually proved, by producing the books in whioh they are entered, 
 and proving them by the clerk of the court ; or it seems, they may be 
 proved by examined copies, (a) [1] 
 
 (a) See Gilb. Ev. 14, 20. Com. Dig. Evidence, C. 1. 
 
 [1] Proceedings in courts of law not being records, may be proved by office- copies duly 
 certified by the clerk in whose custody they are deposited under the seal of the court. But 
 a seal is not necessary where the paper is to be used' in the same court, or before any officer 
 thereof; nor where a certified copy of a rule or order of the Supreme Court is to be used in 
 the Circuit Court. 2 R. S. 500, s. TO, Tl. 
 
 A judge's order may be proved by the production of the order itself. 4 Campb. IT. 
 
 Affidavits made in other states, must be authenticated as follows: — 1. They must be cer- 
 tified by some judge of a court having a seal, to have been subscribed and taken before him, 
 specifying the time and place, when and "where taken. 2. The genuineness of the signature 
 of such judge, the existence of the court, and the fact that such judge is a member thereof, 
 must be certified by the clerk of the court under the seal thereof 2 E. S. 4&2, sec. 26. 
 
 Proceedings under the insolvent laws may be proved either by the original documents or 
 the reoords thereof, or transcripts of such records duly authenticated.' 2 B. S. 94, s. 19, 20. 
 
 Proceedings in surrogates' courts, such as the probate of wills, letters testamentary, and 
 letters of administration, may be proved by the records thereof, or by transcripts from the 
 records, certified by the surrogate under his seal of office. 2 R. S. 145, sec. 7.2; 4 Wend, 
 436. 
 
 In an action before a justice, his own docket of a judgment, or other proceeding had be- 
 fore him, will be good evidence. 2 R. S. 364, sec. 251. 
 
 A transcript from the docket of a justice, of a judgment had before him ; of the proceed- 
 ings in the oause previous to the judgment; of the execution issued thereon, if any; and of 
 the return of such execution, if any, subscribed by the justice ; with a certificate (annexed 
 thereto or endorsed thereon,) of the clerk of the county where the justice resides, under the 
 seal of the court of the county, specifying that the person subscribing such transcript, was, 
 at the date of the judgment therein mentioned, a justice of the peace of such county, will be 
 good evidence to prove the faots stated in such transcript. 2 R. S. 364, o. 252, 253. 
 
 In preparing the transcript, the justice has only to copy from his, docket, and subscribe 
 the same. To this copy may be attaohed or endorsed, the official certificate of the clerk, 
 thus: 
 
 State of New York, Chenango County, Clerk's Office, ss. : I certify that David Long, who. 
 subscribed the within (or annexed) transcript, was at the date of the judgment therein men- 
 tioned, a justice of the peace of the said county. In testimony whereof, I have hereunto, 
 subscribed my name and affixed the seal of said county, the 15th day of June, 1849. 
 
 [l. S.] James Day, Clerk. 
 
 It has been decided that a transcript from a justice's dooket, of a judgment had before 
 him, may be made and certified by the justice after the expiration of his office; and that 
 such a transcript is evidence as well for the justice as for the plaintiff in the judgment in an 
 
MATTERS QUASI OF RECORD. 144 
 
 As to judgments, &c, in foreign courts : — By stat. 14 & 15 Vict. c. 
 99, s. 7, all judgments, decrees, orders, and other judicial proceedings 
 of any court of justice in any foreign state or in any British colony, 
 and all affidavits, pleadings, and other legal documents filed or deposi- 
 ted in any such court, may be proved in any court of justice, or before 
 any person having by law or by consent of parties authority to hear, 
 receive, and examine evidence, — either by examined copies, or by 
 copies purporting either to be sealed with the seal of the foreign or 
 colonial court to which the original document belongs, or, in the event 
 of such court having no seal, to be signed by the judge, or if there be 
 
 action for selling property by virtue of an execution on such judgment. The certificate of 
 the. clerk, in such a case, must be made by the clerk of the county where the justice resided 
 at the time of the rendition of the judgment. 8 "Wend. 393. 
 
 It may sometimes happen that the justice's docket will not show specifically what de- 
 mands of the parties were submitted to the court or jury ; and in such case, parol evidence 
 is admissible to show the facts. The proceedings in a cause before a justice, may be proved 
 by the oath of the justice; but he must produce the written evidence of his proceedings, as 
 far as in his power. 10 "Wend. 525. As a general rule, justices should not be compelled to 
 attend to prove their dockets. One object of the legislature, in prescribing other modes of 
 proof, was to relieve them from attending as witnesses for such purpose. 11 "Wend. 636. 
 
 If a justice be dead or absent, his proceedings in a cause may be proved (after proving 
 such death or absence,) by producing the original minutes entered in his docket, and proving 
 his handwriting ; or they may be proved by copies of such minutes sworn to by a compe- 
 tent witness, as having been composed by him with the original entries, with proof that the 
 original entries are in the handwriting of the justice. 2 R. S. 364, sec. 254. 
 
 The justice may state in his docket, the matters which were actually tried before him, 
 and what was submitted to or withdrawn from the consideration of the court or jury, where 
 he shall deem either to be material. The transcript then shows these facts. 
 
 So items of evidence may also become a material subject of entry, and be shown in tho 
 same manner. 13 J. R. 184. 
 
 Transcripts from the dockets of justices of the peace in other states, are governed by the 
 same rules of proof as other transcripts. Laws of 1836, p. 658. 
 
 The proceedings of public notaries, relative to the protest of bills of exchange and pro- 
 missory notes, and the notice of such protest, may be proved by the certificate of the notaiy 
 under his hand and seal, stating the presentment of the bill or note for acceptance or pay- 
 ment, the protest, and the time and mode of giving notice thereof to the parties. 2 R. S. 
 382, sec. 53. 
 
 The acts of the corporation of a city may be proved by simply producing the original min- 
 utes. 6 Wend. 651 ; 5 Wheat. 420. 
 
 Certified copies by town clerks, and other officers having the custody of papers belonging 
 to municipal corporations, are made by the revised statutes, a very common medium of proof. 
 
 Sheriffs' sales of real estate may be proved by the original certificates of sale, duly acknow- 
 ledged, in the manner required by law to entitle deeds to be recorded, or copies of the same, 
 certified by the clerk, in whose office the originals are filed. 2 R. S. 46"7, sec. 46. 
 
 To prove papers which are iri the official custody of the clerks of courts, county clerks, 
 and the proper officers of municipal corporations, copies of the papers must be certified by 
 the officers, under his seal of office, if he has one. The following is the form of the officer's 
 certificate : 
 
 Chenango County, Town of Oxford, ss. : I hereby certify, that I have compared the above 
 with the original, on file in my office, and the same is a correct transcript therefrom, and of 
 the whole of said original. 
 
 William Stow, Clerk of said Town.— [ Waterman's Treatise, p. 148-151. 
 49 
 
144 1 EVIDENCE. 
 
 more than one judge, by any one of the judges, of the said court, and 
 such judge shall attach to his signature a statement in writing on the 
 said copy that the court whereof he is a judge has no seal; which 
 copies shall be admitted in evidence, without any proof of the seal or 
 signature, or of the judicial character of the person appearing have 
 made such signature and statement. [2] 
 
 [2] By Ike constitution of the United States, it is declared, that " full faith arid credit shall 
 be given in each state to the public acts, record. , and judicial proceedings of every other 
 state." And congress is authorized by general laws to prescribe the manner in which such 
 acts, records, and proceedings, shall be proved, and the effect, thereof. Constitution of the 
 U. S. art. 4. In pursuance of this authority, congress, by act of May 26th, 1790, eh. 11, 
 (2 L. U. States, 102,) after providing for the mode of proof, has declared, that " the said re- 
 cords and judicial proceedings, authenticated as aforesaid, shall have such faith and credit 
 given to them in every court within the United States, as they have by law or usage in the 
 courts of the state from whence the said records are of shall be taken." By the second sec- 
 tion of a supplementary statute, passed March 27tb, 1804, the provisions of the act of 1790 
 are extended to the records and judicial proceedings of the respective territories of the United 
 States, and the countries subject to the jurisdiction of the United States. 3 L. U. States, 
 621. 
 
 With respect to the interpretation of the above mentioned clause of the constitution, there 
 has been some diversity of opinion, particularly as to the words in the latter branch of the 
 section, " and the effect thereof." Some judges have thought that. the word " thereof;" had 
 reference to the proof or authentication, so as to read " and to prescribe the effect of such 
 proof, or authentication." Others have thought that it referred to the antecedent words, 
 " acts, records, and proceedings " so as to read, " and to prescribe the effect of such acts, re- 
 cords, and proceedings." See Bissell v. Briggs, 9 Mass. Bep. 462,-467 ; Winchester v. Evans, 
 Cooke's Bep. 420 ; Hitchcock v. Acihen, 1 Cain. Bep. 460 ; Greeny. Sarmiento, 1 Peters' C. 
 C. Bep. 74; Field v. Gibbs, ib. 155; Commonwealth v. Green, .17 Mass. Eep. 515, 543, 544. 
 " Those who were of opinion that the preceding section of the clause made judgment in one 
 state conclusive in all others, naturally adopted the former opinion ; for otherwise the power 
 to declare the effect would be either wholly senseless, or congress would possess the power 
 to repoal, or vary the full faith and credit given by that section. Those who were of opinion 
 that such judgments were not conclusive, but only prima facie evidence, as naturally em- 
 braced the other opinion ; and supposed, that until congress should by law declare what the 
 effect of such judgment should be, they remained only prima facie evidence." 3 Story's 
 Comm. on the Const. 181, 182. 
 
 Tbo former seems the interpretation generally adopted. But it is not practically, of much 
 importance which construction prevails; since each admits of the competency of congress to 
 declare the effect of judgments when duly authenticated ; which has been done as we have 
 before noticed. It may be stated, as a principle now uniformily received and sanctioned 
 throughout the United States, that the judgment of one of the state courts, is of the same 
 dignity in every other state, as in the one where it was pronounced; and hence, if, in the 
 courts of the state where the judgment was pronounced, it is conclusive in its operation as 
 evidence, or otherwise, it must be equally so, and to the same extent, in all the courts 
 throughout the union. MiUs v. Duryee, 7 Cranch 481 ; Clark's ex\rs v. Carrington, 7 id. 308. 
 Sampton v. W Connell, 3 Wheat. Bep. 234 ; Mayhem v. Thatcher, 6 id. 129 ; Hoxie v. Wright, 
 2 Vermont Bep. 263; Buford v. Buford, 4 Munf. Bep. 241 ; Bordeny. Fitch, 15 Johns. Bep. 
 121 ; Andrews v. Montgomery, 19 id. 162 ; Field v. Gibbs, 1 Peters' C. C. Eep. 155 ; Common- 
 wealthy. Green, 14 Mass. Eep. 515 ; Gibbons v. Livingston, 1 Halst. Eep. 236, 275 ; Newell'y. 
 Newton, 10 Pick. Bep. 470, 472 ; Hall v. Williams, 6 Pick. Eep. 232 ; Spencer v. Broclcway, 
 1 Hamm. Eep. 209; Benton v. Burgot, 10 Sorg. & Eawlo, 240 ; Mitchell v. Osgood, 4 Greenl. 
 124; Wheeler v. Raymond, 8 Cowen's Eep. 311; Shumway v. Stilwell, 6 Wend. Bep. 447 ; 
 Starbuck v. Murray, 5 id. 148 ; Holbrook v. Murray, 6 id. 161 ; Rogers v. Coleman, Hard. Eep. 
 
MATTERS QUASI OE RECORD. 144—2 
 
 As to the documents signed by the judges in this country : — by stat. 
 8 & 9 Vict. c. 113, s. 2, all courts, judges, justices, masters in chancery, 
 
 413 ; Smttv. Coleman, 5 Litt. Rep. 349 ; Evans v. Tatem, 9 Serg. & Rawle, 259, 260 ; Kean 
 v. Rice, 12 Serg. & Rawle, 203 ; Gilman v. Houseley, 5 Martin's Lou. Rep. K. S. 661 ; Hackee 
 v. Cairnes, 2 id. 599 ; Clarke's adm'r v. Day, 2 Leigh's Rep- 172 ; Hayman's ex'r v. Miller, 1 
 Bailey's Rep. 242 ; Holt v. Alhway, 2 Blackf. Rep. 108 • Galick v. Loder, 1 Green's Rep. 68 ; 
 Earthman's adm'r v. Jones, 2 Terg. Rep. 484. See also Jacobs v. Hull, 12 Mass. Rep. 25 ; 
 Wade v. Wade, Cam. & Norw. 486 ; Beits v. Death, Addison's Rep. 265 ; Armstrong v. Car- 
 son's ex'rs, 1 Dall. Rep. 302 ; Ben's Guardian, 2 Bay, 485 ; Curtis v. Gibbs, 1 Penn. Rep. 
 399; Kibbev. Kibbe, Kirby's Rep. 124; Smith v. Rhoades, 1 Day's Rep. 168; Wernwag v. 
 Pawling, 5 Gill & Johns. Rep. 500 ; Bradshaw v. Heath, 13 Wend. 401 ; McRae T. Mattoon, 
 13 Pick. Rep. 53: Tiptonv. Maryfleld's ex'rs, 10 Lou. Rep. (Curry,) 189; Hintonv. Townes, 
 1 Hill's Rep. 439 ; Adams v. Rowe, 2 Fairf. Rep. 89 ; 1 Baldw. Rep. 617 ; Goodrich v. Jen- 
 kins, 1 Wright's (Ohio) Rep. 348 ; Hunt v. Lyle, 8 Terg. 142; 6 id. 412; Hall t, Williams, 1 
 Fairf. Rep. 278. 
 
 All the cases above cited will be found to agree that the judgment of a neighboring state 
 may be wholly impeached by showing that the court rendering it had not jurisdiction ; and 
 it makes no difference whether the judgment comes in question directly or incidentally. See 
 Elliott v. Piersoll,,! Peters' Rep. 328, 340; Thompsons. Tolmie,2 id. 157 ; Holmes v. Boughton, 
 10 Wend. Rep. 75 ; Bradshaw v. Heath, 13 id. 407 ; Walker v. MaxweU, 1 Mass. Rep. 103 ; 
 Fisher v. Harnden, 1 Paine's Rep. 55 ; see also the next succeeding note, and cases there 
 cited. 
 
 And if the judgment is inconclusive, in the state where it was rendered, or if it is inquir- 
 able into there during a particular period, and on certain conditions, it will be open to inves- 
 tigation to the same extent every where else.- This is an obvious deduction from the fore- 
 going, position with regard to the effect of such judgments generally. It is, moreover, 
 directly sanctioned by several well considered cases. See Green v. Sarmienta, 1 Peters' C. 
 C. Rep. 74; Baugh v. Baugh, 4 Bibb, 556; Curtis v. Gibbs, 1 Pennington's Rep. 399, 403, 
 404 ; Rogers v. Coleman, 1 Hardin's Rep. 420 ; Armstrong's ex'rs v. Carson, 2 Dall. Rep. 392 : 
 1 Story's Comm. on the Const. 183; Wernwag v. Pawling, 5 Har. & Johns. Rep. 500 ; Spencer 
 v. Sloo, 8 Lou. Rep. (Curry,) 290. 
 
 In Sew York, the revised statutes provide, that the records and judicial proceedings of 
 any court in a foreign country, shall be admitted in evidence in.the courts of this state, upon 
 being authenticated as follows: 
 
 1. By the attestation of the clerk of such court, with the seal of such court annexed, or 
 of the officer in whose custody such records are legally kept, with the seal of his office an- 
 nexed : 
 
 2. By a certificate of the chief justice or presiding magistrate of such court, that the per- 
 son attesting such record, is the clerk of the court, or that he is, the officer in whose custody 
 such record is required by law to be kept ; and in either case, that the signature of such 
 person is genuine : and, 
 
 3. By a certificate of the secretary of state, or other officer of the government under whose 
 authority such court is held, having the custody of the great or principal seal of such govern- 
 ment, purporting that such court is duly constituted, specifying generally the nature of its 
 jurisdiction, and verifying the signature of the clerk or other officer, having the custody of 
 such record and also verifying the signature of the chief justice or presiding magistrate. 2 
 R. S. 396, § 26. 
 
 Copies of such records and proceedings in the courts of a foreign country, may also be ad- 
 mitted in evidence upon due proof, 
 
 1. That the copy offered has been compared by the witness with the original, and is am 
 exact transcript of the whole of such original : 
 
 2. That such original was in the custody of the clerk or other officer, legally having charge 
 of the same : and, 
 
144 3 EVIDENCE. 
 
 masters of courts, commissioners judicially acting, and other judicial offi- 
 cers, shall henceforth take judicial notice, of the signature of any of 
 
 3. That such copy is duly attested by a seal, which shall be proved to be the seal of the 
 court in which such record or proceeding shall be. Id. § 27. 
 
 It is declared, however, that these provisions shall not prevent the proof of any record or 
 judicial proceeding of the courts of any foreign country according to the rules of the com- 
 mon law in any other manner than that pointed out above; nor shall they be construed as 
 declaring the effect of any record or judicial proceeding, authenticated as prescribed in the 
 Statute. Id. § 28. 
 
 The different modes of authenticating foreign judgments, independent of any legislative' 
 provision on this subject, have been laid down by Marshall, 0. J., as follows : 1. By an ex- 
 emplification under the great seal. 2. By a copy, proved to be a true copy. 3. By the cer- 
 tificate of an officer authorized by law, which certificate must itself be properly authenticated. 
 These he pronounces the usual, if not the only modes of authenticating foreign judgments. 
 Church v. Eubbart, 2 Cranch, 187, 238. See also Mahurin v. Bickforn, 6, Kf. Hamp. Rep. 
 567, 670. Vandervoort v. The Columbian Ins. Co. 2 Cain Rep. 155, et seq. 
 
 If these modes of authentication be all beyond the reach of the party, other testimony, 
 inferior in its character, will, it seems, be received. Church v. Eubbart, supra, per Marshall, 
 C. J. See Eadfield v. Jameson, 2 Munf. Rep. 53. Young v. Gregory, 3 Call, 446. Also per 
 Washington, J., in Wood v. Pleasants, 3 "Wash. C. C. Rep. 201, 203, 
 
 The public national seal of a kingdom, or sovereign state, is also noticed judicially by the 
 courts of other countries, and is the highest evidence and most solemn sanction of authenti- 
 city, in relation to judicial proceedings, known in the intercourse of nations. Per Gould, X, 
 Griswold v. Pitcairn, 2 Conn. Rep. 90. Per Swift, Oh. J., id. 89. Anonymous, 9 Mod*. 66. 
 United Slates v. Johns, 4 Dall. 416. , Church v. Hubbart, 2 Cranch, 187. Story's Conn, of 
 Laws, 530. Lincoln v. Battelle, 6 "Wend. 475,' 484. Dunlap v. Waldo, 6 N. Hamp. Rep. 453. 
 Ex parte Povall, 3 Leigh 816. State v. Carr, 5 N. Hamp. Rep. 369, 370. Accordingly, in 
 Connecticut, a record of the supreme court of Copenhagen was allowed as evidence where 
 there was no certificate that it was a copy ; but only the signature of Colbiornsen, below the 
 great seal of Denmark, without any addition showing his official character. And Swift, C. 
 J., delivering the opinion, said, " this court does not know the form of making up, attesting 
 or certifying their record. If it appear to be a judicial proceeding under the great seal, it is 
 to be presumed that all the formalities required by their law have been complied with. This 
 appears to be the record of a judgment rendered in a court of the kingdom of Denmark, 
 under the great seal of the king. This seal proves itself, and the court is bound to take 
 judicial notice of it." Griswold v. Pitcairn, 2 Conn. Rep. 85, 89, 90. The annexation of the 
 great seal will be presumed to have been done by a person having custody thereof, and com- 
 petent authority to do the act. See United States v. Amedy, 11 Wheat. Rep. 406, 7 ; United 
 States v. Johns, 4 DaU. 415, 416 ; also, 1 Bald. Rep. 613, 614. 
 
 But when a civil war rages in a foreign nation, and one part separates itself from the old 
 established government and forms itself into a distinct government, the courts of the re- 
 spective United States must view such newly constituted government as it is viewed by the 
 legislative and executive departments of our general government; and before it is recognized 
 by them as an independent government, its seal cannot be allowed to prove itself; but it may 
 be proved by such testimony as the nature of the case admits. United States v. Palmer et 
 al. 3 Wheat. Rep. 610. The Estrella, 4 Wheat. Rep. 298. See S. P., United States v. Etch- 
 ings, 2 Wheel. Crim. Cas. 543. 1 Bald. Rep. 616. 
 
 Proceedings in St. Domingo, during the short period in which the possession of the island 
 had passed from Franco to England, were, under the particular circumstances of the case, 
 held sufficiently authenticated by the private seal of the governor. Eadfield v. Jameson, 2 
 Munf. R. 53. What is sufficient to authenticate, in the courts of this country, the sentence 
 or act of a foreign tribunal or government, after a destruction of such government by revo- 
 lution or conquest, see id. 
 
 The proceedings of a foreign court may he proved by a sworn copy. Lincoln v. Battelle, 
 
MATTERS QUASI OP RECORD. 144 — 4 
 
 the equity or common law judges of. the superior courts at Westmins- 
 ter, provided such signature be attached or appended to any decree, 
 order, certificate, or other judicial or official document. 
 
 All copies of the journals of either house of parliament, purporting 
 to be printed by the printers, of the crown, or by the printers to either 
 house of parliament, shall be admitted as evidence thereof, by all courts, 
 judges, justices, and others, without any proof being given that such 
 copies were so printed.(o)[3] 
 
 (a) 8 & 9 Vict. o. 113, s. 3. 
 
 6 "Wend. 415. Hitt v. Packard, 5 id. 387, per Allen, senator. Id. p. 391, per Beardsley, 
 senator. See also id. p. 385, per Walworth, Ch. ; 1 Stark. Ev. 191, 6th Am. ed. ; per Lord 
 Ellenborough in Collins v. Matthew, 5 East, 475 ; Baldwin v. Eule, 17 John. Rep. 272, 3. 
 But not by an office copy. See Appleton v. Lord Brayorooke, 6 Maule & Sel. 34 ; 2 Starkie's 
 Rep. 6. 7,'s. 0. 
 
 How far a copy of foreign judicial proceedings may be said to be authenticated by the acts 
 and conduct df the party against whom it is sought to be used, has been sometimes made a 
 question. In an action on a policy of insurance, a paper purporting to be a copy of a decree 
 of the English court of appeals in prize causes condemning the property insured as prize, 
 was offered by the plaintiffs as evidence generally for the jury. The document was not under 
 seal, hut was one of the papers exhibited by the agent of the plaintiffs to the defendant's 
 broker, as one of the preliminary proofs of loss. At the time it was so exhibited an endorse- 
 ment was made "upon it, stating the day of its exhibition, and that it was the decree of con- 
 demnation. Held, that it was not evidence of any thing contained in it ; but that it might 
 be used to show the fact of its exhibition to the underwriter, when such fact should become 
 material. Thwston v. Murray, 3 Binn. Rep. 326. In Belafieldv. Band, (3 John. Rep. 310,) 
 the plaintiff offered in evidence a translation of the proceedings of a tribunal atHavre; he 
 showed that the same translation had been put into the hands of F., a broker, by L., in cer- 
 tain suits brought by L. against him on policies of insurance on the same vessel, for the same 
 voyage, in order to enable E. to adjust the loss in those cases. The suits by L. were for 
 himself and the present defendant, who was master and owner of one third ; and the present 
 suit was for moneys which the plaintiff had been compelled to pay in the former, and which, 
 as was contended, the present defendant was himself responsible for. The court held that 
 the putting of the document into F.'s hands by L., as above mentioned, did not preclude the 
 present defendant from objecting to its authenticity. " It does not appear from the testi- 
 mony," say the court, "that such a privity exists between L. and the defendant, as to con- 
 clude him from making the objection, L. was not his authorized agent; besides, if that were 
 the case, I cannot discern why a delivery of a paper in one cause should be deemed to con- 
 clude a person from objecting to its authenticity in another action." Id. 314, 315. Further 
 as to when the conduct of the party or his agent, in respect to papers, shall be said to* con- 
 clude him from objecting to their authenticity, see Senat v. Porter, 7 T. R. 158 ; Gorton v. 
 Dyson, 3 Moore, 558. 
 
 [3] The printed journals of congress have been allowed to be read, in Pennsylvania, with- 
 out other proof of their authenticity. Commonwealth v. Be Longchomps, Oyer and Term. 
 Phil. 1784, MS. Whart. Dig. 280, pi. 112, 2d ed. 
 
 The votes of assembly in that state, have been admitted to prove the time of the notifi- 
 cation of the repeal of an act of assembly'by the king and council; but not answering the 
 purpose fully, the minutes of the council were sent for, and read without opposition. Al- 
 bertson's lessee v. Robeson, 1 DalL Rep. 9. 
 
 In New- York, the senate, journals, proved by the clerk to have been printed by the 
 printer to the senate, and laid upon the tables of members, have been received as prima 
 facie evidence. Boot v. King, 7 Cowen's Rep. 613, 636. 
 
144 — § EVIDENCE. 
 
 As to proceedings in the court of bankruptcy : — by stat. 12 & 13 
 Vict. c. 106, s. 236, any flat, petition for adjudication of bankruptcy, 
 petition for arrangement between a debtor and bis creditors, assignment, 
 
 appointment of assignees, certificate, deposition, or other pro- 
 [*145] ceeding or order in bankruptcy, or *under any such petition 
 
 for arrangement, appearing to be sealed with the seal of the 
 court,— or any writing purporting to be a copy of any such document 
 and purporting to be so sealed,— shall at all times and on behalf of all 
 persons, and whether for the purposes of this Act or otherwise, be ad- 
 mitted in all courts whatever as evidence of such documents respect- 
 ively, and of such proceedings and orders having respectively taken 
 place or been made, and be deemed respectively records of the court, 
 without any other proof thereof. And by sect. 237, all courts, judges, 
 justices, and persons judicially acting, and other officers, shall take ju- 
 dicial notice of the signature of any commissioner or register of the 
 court, and of the seal of the court, subscribed or attached to any ju- 
 dicial or official proceeding or document to be made or signed under 
 the provisions of this Act. 
 
 Proceedings in the insolvent court, (petition, schedule, order of ad- 
 judication, &c.) may be proved by an office copy, purporting to be 
 signed by the officer in whose custody the proceedings are, and to be 
 sealed with the seal of the court, without other proof.(a) 
 
 (<f) Other Public Documents. 
 
 Inquisitions may be proved by examined copies, or the originals may 
 be produced.(i) 
 
 The Gazette, printed and published by the Queen's printer, is evi- 
 dence of all acts of state, (c) 
 
 Royal proclamations purporting to be printed by the printers to the 
 crown, or by the printers to either house of parliament, shall, be admit- 
 ted as evidence, thereof by all the courts, judges, justices, and others, 
 without any proof being given that such copies were so printed.(d) 
 
 So, the articles of war may be proved by the copy printed and pub- 
 lished by the Queen's printer.(e) 
 
 As to the rules of the poor law commissioners : — by stat. 7 & 8 Vict. 
 c. 101, s. 71, a copy of any rule, order, or regulation made by the said 
 commissioners, printed by the Queen's printer, shall, after the lapse of 
 
 (a) 1 & 2 Vict. o. 110, s. 105. (d) 8 & 9 Vict. c. 113, s. 3. 
 
 (6) See Arch. PI. & Ev. Civ. Act. 408, 409. (e) 5 T. R. 442, 446. See 4 B. & C. 304. 
 
 (c) 5 T. E. 436. 
 
 And a printed copy of public documents, proved to have been transmitted to congress by 
 the president of the United States, and printed by the printer to congress, has been holden 
 admissible without other authentication., BatkKffs v. The United States Ins. Co. 1 John. 
 Rep. 38, 50. 
 
PUBLIC DOCUMENTS. 145 
 
 fourteen days from the date thereof, be received in evidence, and judi- 
 cially taken notice of, and shall, until the contrary be shown, be deem- 
 ed sufficient proof, that such order was duly made, and is in force. 
 
 Registers of baptisms, marriages and burials, may be proved by the 
 register itself, or by an examined copy. of it.(a)[l] 
 
 (a) Gilb. Ev. 12. 
 
 [1] A bishop's register is, in England, evidence of facts stated in it. Arnold v. TheBishop 
 of Bath, 5 Bing. 316. S. C, 2 Moore & Payne, 559. But a register of burials kept by the 
 Wesleyan Chapel, has been there repudiated as incompetent. Whittuck v. Waters, 4 Carr. & 
 Payne. 315. See as to registers of dissenting chapels, Phillips on Ev. Cow. & Hill's notes, part 
 1, p. 234. A register of the births of dissenter's children, kept at a public library, is not 
 evidence. Ex parte Taylor, 1 Jac. & Walk. 463. 
 
 A sworn copy from the register book.of the burials in Christ Church, (Philadelphia,) has 
 been received in evidence to show the fact of the death of a person and the time. Lewis v. 
 Marshall, 5 Peters' Rep- 410, 415, 6. 
 
 In Louisiana, the register of baptisms and births,_ is. evidence, and, it seems, when shown 
 to exist, precludes parol testimony. Duplessis v. Kennedy, 6 Lou. Rep. (Curry) 231, 242. 
 Fletcher v. Cavalier, 4.Mill. Lou. Rep. 261. An alteration in such baptismal register, by 
 erasing the word "natural," and writing over it the word "legitimate," has no effect in pre- 
 venting the registry from being used to establish the period of birth, though the alteration 
 •be not accounted, for. Otherwise,, however, if the document were offered to establish the 
 legitimacy of the person named. Fletcher v. Cavalier, supra. A register of burials is also 
 evidence there ; and where a register of baptisms proved that a child was christened by the 
 name of "Francisco Antonio'," and a register of burials attested the interment of a person 
 named " Francisco," and no question was raised in the inferior court on the point of vari- 
 ance ; held, that on appeal, the appellate court must consider the one whose death was at- 
 tempted to be proved, to be the person whoso death, according to the pleadings, itwas im- 
 portant to establish. Celis v. Oriol, 6 Lou. Rep. (Curry,) 403. 
 
 In Pennsylvania, a copy of the register of marriages, baptisms, and burials, kept in a 
 parish in the island of Barbadoes, certified to be a true copy by the rector of the parish, and 
 proved by the oath of a witness, taken before the deputy secretary of the island and notary- 
 public, (his hand-writing and office being proved,) has been received as good evidence of 
 pedigree. Kingston v. Lesley, 10 Serg. & Rawle, 383. And a copy of a register of births 
 and deaths of the people called Quakers, kept in England, proved to be a true one before 
 the lord mayor of London, has also been allowed as evidence in Pennsylvania, to prove the 
 death of a person. Eyam v. Edwards, 1 Dall. Rep. 2. By a statute in that state, the reg- 
 ister kept by any religious society of births, marriages and deaths, is declared good evidence. 
 The act is silent as to the mode of proof; and therefore the common law mode, which is by 
 a sworn copy, or the production of the original, must be resorted to. A certified copy under 
 the seal of the corporation or religious society, is not admissible. Stoever v. Whitman's lessee, 
 6 Binn. 416. 
 
 In Maine, a book was produced by a town clerk, which had been received by him from 
 his predecessor in office as an official record ; it purported to contain a record of births and 
 marriages in such town, but contained no title or attestation of its character, nor any certifi- 
 cate showing by whom the entries in it were made ; and held, that it was proper prima 
 facie evidence to prove the age of person named in it. The Inhabitants of Summer v. The 
 Inhabitants of Sebec, 3 Greenl. 223. See Martin v. Ghmby, 2 Harr. & John. 248. A copy 
 from the records of the town is there admissible. Wedgwood's case, 8 Greenl. 15. 
 
 In New-York, sworn copies of such registers, when the original is of a public nature, 
 have been held admissible. See Jackson, ex dem. Bogert v. King, 5 Cowen's Repj 231. See 
 also JacJcson, ex dem. Miner v. Boneham, 15 John. Rep. 226. See, as to records of mar- 
 riages, in New-York, Phillips on Ev. Cow. and Hill's notes, part 2, p. 231, et seq. 
 
145 1 EVIDENCE. 
 
 As to ship's registers : — by stat. 14 & 15 Vict. c. 99, s. 12, every re- 
 gister of a vessel kept under any of the Acts relating to the registry of 
 British vessels, may be proved in any court of justice, or before any 
 person having by law or by consent of parties authority to 
 [*146] hear, receive, and examine evidence, — *either by the produc- 
 tion of the original, — or by an examined copy thereof, — or by 
 a copy thereof purporting to be certified under the hand of the person 
 having the charge of the original, and which person is hereby required 
 to furnish such certified copy to any person applying at a reasonable 
 time for the same, upon payment of the sum of one shilling ; and every 
 such register or copy,— and also every certificate of registry, granted under 
 any of the acts relating to the registry of British vessels, and purport- 
 ing to be signed as required by law, — shall be received in evidence in 
 any court of justice, &c, as, prima facie proof of all the matters contain- 
 ed or recited in such register, and of all the matters contained or recit- 
 ed in or endorsed on such certificate of registry, respectively. [1] 
 
 In North Carolina, a registry of births, marriages, and burials, kept pursuant to. the stat- 
 ute, is legal evidence of marriages, births, &c, especially on questions of pedigree. And the 
 court lay it down as a general rule, that a book kept by public authority is necessarily evi- 
 dence of the facts recorded in it. Jacock's lessee v. Gilliam, 3 Murph. Eep. 41, 52. 
 
 [1] A succinct statement of the law of congress, relative to the registry of vessels, will be 
 seen by reference to 3 Kent's Com. 141, et seq., together with an able commentary upon it. 
 
 The register is not a document required by the law of nations, as expressive of a ship's 
 character, (Oheminant v. Pearson, 4 Taunt. Rep. 367 ;) but is of local or municipal regukv 
 tion, and the object of it has been said to be, to show the character of the vessel, and entitle 
 her to the advantages secured by law to the vessels of our own country. Sharp v. The Uni- 
 ted Ins. Co., 14 John. Rep. 204, per Spencer, J. 
 
 Transfers of ships, it seems, in England, are declared void unless < certain formalities pre- 
 scribed by the registry acts are pursued. But there is no corresponding provision in the act 
 of congress. Colson v. Bonzey, 6 Greenl. 414, 111 ; see also Bixley v. The FranMn Ms. Co., 
 8 Pick. 86, 88, 89 ; Birbech v. Fucker, 2 Hall's Rep. N. V. S. C. 121 ; Ring v. Franklin, id. 1 ; 
 Wendovor v. Sogeboom, 1 John. Rep. 308. 
 
 The effect and competency of the register of a vessel as evidence, has been_considered in 
 several cases in the courts of this country. Our laws recognize the possibility of the regis- 
 ter's existing in one name while the ownership is in another. The_ ownership and character 
 of a vessel are matters m pais. The register is not an exclusive test of either. Hence, on 
 an indictment for piracy, the character of the vessel plundered may be shown without any 
 effort to produce her certificate of registry. United States v. Furlong, 5 "Wheat. 184, 199. 
 In an action to recover back a premium of insurance on the ground that the plaintiff had no 
 interest in the vessel at the time of insurance, the register which was in the name of the 
 other persons, was held not oven prima facie evidence to prove that the plaintiff- was not 
 owner. Sharp y. Tlie United Ins. Co., 14 John. Rep. 201. So where a person purchased a 
 vessel, and took immediate possession, but it was agreed that no bill of sale was to be exe- 
 cuted till the purchase-money was all paid, held that the vendor was not liable for repairs 
 made to the vessel by direction of the master on the credit of the purchaser ; and this, though 
 the register still stood in the name of the vendor. That circumstance the court say did not in 
 any manner determine the ownership. Leonard v. Huntington, 15 John. Rep. 298. And 
 so, in Massachusetts, where the register was relied on by underwriters in an action on a 
 policy of insurance for the purposo of showing that two of the insured had no legal or insur- 
 able interest in the vessel. Bixley v. The FramkMn Ins. Co., 8 Piok. Rep. 86. In Connecti- 
 
PUBLIC DOCUMENTS. 146 
 
 As to proceedings of corporations or public companies : — by stat. 8 
 & 9 Vict. c. 113, s. 1, after reciting that it is provided by many statutes 
 
 out, however, though the register of a vessel is not conclusive of ownership, yet, where a 
 a person by such a register made on his own oath appears to be the unconditional owner, 
 held, by four judges against three, that it must be considered as a declaration to the world 
 that he is owner; and he becomes liable, of course, for necessary disbursements in repairs 
 and supplies, procured by the master during the voyage. Starr v. Knox, 2 Conn. Eep. 215. 
 The register cannot be rendered evidence of ownership in favor of the person who procured 
 it to be made, though it may be against him. Ligon v. Orleans Navigation Go., 1 Mart. Lou. 
 Eep. N. S. 682. 
 
 In an action against owners of a vessel for a violation of a contract made by the plaintiffs 
 for the transportation and delivery of goods with the master, a copy of the register, which 
 purported to have been made on the oath of all the defendants that they were the owners, 
 was held good evidence of their being such ; and this on proof merely that the copy was a 
 copy of the record in the custom-house, though the witness could not say whether the record 
 was the original or a copy. Hacker v. Young, 6 N. Hamp. Eep. 95. It is prima facie evi- 
 dence in these and similar cases, but is not conclusive. Golson v. Bonzey, 6 Greenl. Eep. 
 4*74; Cox v. fieid, 1 Carr. & Payne, 602 ; Hussey v. Allen, 6 Mass. Eep. 163. The register 
 is used as evidence in showing a fulfilment of warranty as to the character of the property 
 in actions upon policies of insurance. Oatlett v. The Pacific Ins. Go., 1 Wend. 561. And in 
 such cases it has been said, that proof that there was a register, is prima facie evidence of 
 its being on board dufiDg the voyage. Id. 578 ; See Ludlow v. The Union Ins. Co., 3 Serg. 
 & Eawle, 133. 
 
 The register may be proved by a sworn copy. Goolidge v. The N. Y. Firem. Ins. Co., 14 
 John. Eep. 308, 315 ; U. S. v. Johns, 4 Dall Eep. 415 ; Backer v. Young, 6 ST. Hamp. Eep. 
 95. A copy certified by the collector in whose office it is recorded, is not evidence. He is 
 not authorized to certify, nor entrusted to give out copies. Goolidge v. The N. Y. Firem. Ins. 
 Go., 14 Johns. Rep. 308; see U. S. v. Johns, 4 Dall. 415; Woods v. Courier, 1 id. 141. A 
 copy produced from the treasury department of the United States, (where the original is re- 
 quired to be filed after a vessel is condemned,) certified by the register of the department, 
 whose official character was attested by the secretaryof the treasury, under the seal of the 
 department, has been held competent evidence in the case of a condemned vessel. Catlett 
 v. The Pacific Ins. Co., 1 "Wend. 561. 
 
 . The commission of a vessel or person, granted by a foreign government, may be proved 
 by the commission itself under the seal of such government. See The JEstrella, 4 Wheat, 
 298. The seal in general proves itself; but otherwise as to the seal of a new government, 
 unacknowledged by the United States. Id. The fact that the person or vessel was in the 
 employ of such unacknowledged government may be shown without proving the seal. Id. ; 
 U. S. v. Palmer, 3 id. 634, 635. Where the commission has been lost, its previous exist- 
 ence on board may be shown by parol evidence. The UstreUa, 4 Wheat. 298. See Bundle 
 v. Beaumont, 4 Bing. 531 ; S. C, 1 Moore & Payne, 396. 
 
 The log-book of certain vessels is, in the United States, made evidence by act of congress, 
 of the desertion by a seaman. See Ing. Abr. 612, sec. 2. It is, however, never conclusive, 
 but only prima facie evidence, and may be rebutted. Jones v. The Brig Phoenix, 1 Peters' 
 Adm. Dec. 201.;, Malone v. The Mary, id. 140; Thompson v. The Ship Philadelphia, id. 21Q; 
 Douglass v. Eyre, 1 Gilpin's Eep. 14?, 152, 153, 154; Orne v. Townsend, 4 Mason's, Rep. 
 541. The log-book, in general, ought not to be admitted to establish any facts save such 
 as are contemplated by the act of congress. Jones v. Tlie Brig Phoinix, supra. It is in no 
 sense, per se, evidence, except in certain cases provided for by statute. It does not import 
 legal verity ; and in every other case is mere hearsay not under oath. It may be used against 
 persons, however, to whom it should be brought home as having a concern in writing or di- 
 recting what should be contained therein, to contradict their statements or their defence. 
 But it cannot be received as evidence for such persons, or others, except by force of a stat- 
 ute rendering it so. Per Story, J., in V. S. v. Gilbert, 2 Sumn. Eep. 11, IS, 
 
 50 
 
146 — 1 EVIDENCE. 
 
 that various certificates, official and public documents, documents and 
 proceedings of corporations and of joint stock and other companies, and 
 certified copies of documents, bye laws, entries in registers, and other 
 books, shall be receivable in evidence of certain particulars in courts 
 of justice, provided they be respectively authenticated in the manner 
 prescribed by such statutes ; and that the beneficial effect of these pro- 
 visions has been found by experience to be greatly diminished by the 
 difficulty of proving that the said documents are genuine ; and that it 
 is expedient to facilitate the admission in evidence of such and the like 
 documents : — it is enacted that whenever by any Act now in force or 
 hereafter to be in force, any certificate, official or public document, or 
 document or proceeding of any corporation or joint stock or other com- 
 pany, or any certified copy of any document, bye-law, entry in any re- 
 gister, or other book, or of any other proceeding, shall be receivable in 
 evidence of any particular in any court of justice, or before any legal 
 tribunal, or either house of parliament, or any committee of either 
 house, or in any judicial proceeding, the same shall respectively be ad- 
 mitted in evidence, provided they respectively purport to be sealed or 
 impressed with a stamp, or sealed and signed, or signed alone, as re- 
 quired, or impressed with a stamp and signed, as directed by the re- 
 spective Acts made or to be hereafter made, without any proof of the 
 seal or stamp, where a seal or stamp is necessary, or of the signature, 
 
 On an indictment of several seamen for a revolt, and confining the master, they defended 
 on the ground (among others) that the master was insane. To rebut this, the prosecutor 
 offered the log-book, kept by the master during the period of his alleged derangement, in 
 which, as he said, he made entries every night; held, that it was inadmissible. XJ. S. v. 
 Sharp, 1 Peters' C. 0. Rep. 118, 119. 
 
 An entry in the log-book is indispensable evidence of the fact of desertion, when a forfeit- 
 ure of wages is insisted on ; it is necessary, in order to show that no consent was given, and 
 no release was intended by receiving the delinquent again on board, as well as to ascertain 
 the fact of desertion generally with greater accuracy. Malone v. The Mary, 1 Peters' Adm. 
 Decis. 140 ; Phoebe v. Dignum, 1 Wash. C. C. Rep. 48 ; Douglass v. Eyre, 1 Gilpin's Rep. 
 141. Whether the entry in the log-book, in order to be evidence, must have been mado 
 (according to the letter of the act of congress) on the very day on which the alleged desertion 
 took place, does not appear to be as yet authoritatively settled. In Phoebe v. Dignum, supra, 
 the court seem strongly to favor the notion that it must. But Hopkinson, J., in Douglass v. 
 Eyre, supra, contends that it need not, under all circumstances ; for in some cases it would 
 be impossible. At any rate, the entry purporting to have been made on the day, is prima 
 facie evidence that it was so made, and it lies on the opposite party to show the contrary. 
 Id. 152, 153. 
 
 Where the log-book is offered, it must be identified ; and where the party offering it called 
 a sailor belonging to the vessel, who deposed to the hand-writing of the mate in several 
 parts of it, and that during the voyage he saw him marking the words "Log-book," &c. on 
 the cover ; held, notwithstanding this testimony, that as the book may not have been kept 
 on the voyage, but might afterwards have been made up by the mate to suit the purposes 
 of the cause, it was not sufficiently identified. And this, though the opposite party had 
 given notice to produce the log-book. U. S. v. MitcheU, 2 Wash. C. 0. Rep. 478, 479. See 
 further as to a log-book as evidence, Bixby v. The Franklin, Ins. Co., 8 Pick. Rep. 89 ; Small- 
 wood, v. Mitchell, 2 Hayw. Rep. 145, 146. 
 
PUBLIC DOCUMENTS. 146—2 
 
 or of the official character of the person appearing to have signed the 
 same, and without any further proof thereof, in every case in which the 
 original record could have been received in evidence. [2] 
 
 And by stat. 14 & 15 Vict. c. 99, s. 10, every document, which by 
 any law now in force or hereafter to be in force, is or shall be admissi- 
 ble in evidence of any particular in any court of justice in Ireland, 
 without proof of the seal or stamp or signature authenticating 
 the same, or of the judicial or official *character of the person [*147] 
 appearing to have signed the same, — shall be admitted in evi- 
 dence to the same extent, and for the same purposes, in any court of 
 justice in England or Wales, or before any person having in England 
 or "Wales by law or by consent of parties, authority to hear, receive, 
 and examine evidence, — without proof of the seal or stamp or signa- 
 ture authenticating the same, or of the judicial or official character of 
 the person appearing to have signed the same. 
 
 And lastly, the entries in corporation books, and in the books of 
 
 [2] The seals of private courts or of private persons are not evidence of themselves; there 
 must be proof of their credibility. It cannot be presumed that they are universally known, 
 and consequently they must be attested by the oath of some one acquainted with them. The 
 seals themselves, and the proof of their genuineness, must go together to the jury. Denn v. 
 Freelandt, infra. Church v. Hubbard, 2 Cranch, 239. 
 
 See S. P. with respect to the seal of a banking corporation, (Leazure v. HiUegas, 1 Serg. & 
 Rawle, 313 ;) a public incorporated hospital, (Jackson v. Pratt, 10 John. Rep. 381, 38T ;) an 
 incorporated church, (Denn v. Freelandt, 2 Halst. Eep. 352 ;) so in Pennsylvania as to the 
 seal of the corporation of Belfast, Ireland, (Fosters. Shaw, t Serg. & Rawle, 156 ;) of the city 
 of London, (Chew v. Keck, 4 Rawle's Rep. 163 ;) and indeed of all foreign corporations. See 
 Foster v. Shaw, and Chew y. Keck, supra. 
 
 The seal of a corporation may be impressed directly on the paper; wax or wafer is not 
 necessary. Beardsley v. Knight, 4 Verm. Rep. 419. 
 
 We have seen that these seals do not prove themselves, but are to be identified by some 
 person who saw them affixed, or who knows them from their impression. See Ang. & 
 Ames on Cor. 115, 116. 
 
 It is not necessary that a corporation deed should say, "sealed with our common seal," 
 or the like. Ang. & Ames on Corp. 115. But it must purport to be a deed of the corpora- 
 tion. And, where a corporation authorized its president to execute a deed of lands belong- 
 ing to the corporation, and he executed one, naming the corporation as grantors, but attested 
 it thus: "In witness whereof, I, 0. Spencer, president, have hereunto set my hand and seal," 
 &c, signing his own name as president, opposite the seal, which exhibited no impression ; 
 held, that it was to be considered as the individual deed of the president, and not that of the 
 corporation. Hatch's lessee v. Ban; 1 Haram. Rep. 390, 394. 
 
 In general, proof of the seal in any way as the seal of the corporation, the instrument be- 
 ing in possession of the party, will prove the delivery. Ang. & Ames on Corp. 116. And 
 its being affixed to the deed, is presumptive evidence that it was done by proper authority. 
 DarneU v. Dickens, 4 Yerg. 1, 9. See also The President, Managers & Company of the Berks 
 & Dauphin Tump. Co. v. Myers, 6 Ser. & Rawle, 15. The latter case establishes that the 
 affixing to the seal, when done by less than a legal quorum of the board for the transaction 
 of business, binds the corporation, provided the act was authorized or directed by a legal 
 quorum ; and whether such authority existed is a question for the jury, under all the cir- 
 cumstances. The seal appearing, is prima facie evidence of its having been regularly affixed, 
 but not. conclusive. See id. 16. St Mary's Church, 1 id 630, per Tilghman, C. J. 
 
147 EVIDENCE. 
 
 public offices and companies, such as the books of the Custom House 
 Bank, East India Company, South Sea Company, and the like^ relat- 
 ing to matters public and general, may be proved by examined co- 
 pies.^) And this is now fully confirmed by stat. 14 and 15 Vict. c. 
 99, s. 14, by which it is enacted that whenever any book or other doc- 
 ument is of such a public nature, as to be admissible in evidence on its 
 mere production from the proper custody, and no statute exists which 
 renders its contents provable by means of a copy,— any copy thereof 
 or extract therefrom, shall be admissible in evidence in any court of 
 justice, or before any person now or hereafter having by law or by 
 consent of parties authority to hear, receive and examine evidence, — 
 provided it be proved to be an examined copy or extract, — or provid- 
 ed it purport to be signed and certified as a true copy or extract by the 
 officer to whose custody the original is intrusted, and which officer is 
 hereby required to furnish such certified copy or extract to any person 
 applying at a reasonable time for the same, upon payment of a reason- 
 ble sum for the same, not exceeding fourpence for every folio of ninety 
 words. [1] 
 
 (a) 1 Str. 93, 307. 2 Id. 954, 1005. Hardw. Peake, 43. 4 Taunt. V8T. 
 128. 2 lid. Raym. 851. 2 Doug. 593, n. 3. 
 
 [1] The general rule is, that corporation books are evidence in disputes between mem- 
 bers, but not against strangers. Commonwealth v. Woeiper, 3 Serg. & Rawle, 29; Fleming 
 v. Wallace, 2 Yates' Rep. 154. Highland Turnpike Co. v. fflKean, 10 John. Rep. 154. And 
 when evidence, if there is nothing on their face to raise a suspicion that the corporate pro- 
 ceedings have been irregular, they will be treated and referred to as evidence of the legality 
 of the proceedings. In a contest among the members of a church as to the validity of a 
 bye-law, which required two-thirds of the members to pass it, where it was stated in the 
 minutes of the corporation that on due invitation the corporators met, held that this amounted 
 to evidence of two-thirds being present. Commonwealth v. Woeiper, 3 Serg. & Rawle, 29. 
 See Grays v.. Turnp. Co. 4 Rand. 578. Wood v. The Jefferson Co. Bank, 9 Cow. 194, 205. 
 
 The books of a corporation are not evidence to prove a usage, by entries of acts of sub- 
 mission by particular persons to the exercise of rights insisted on, without proof aliunde of 
 the situation of those persons, and their relative position in reference to the corporation. 
 •"Moies v. Morgan, 1 Price's P. 0. 77, oited 2 Harr. Dig. 1081. See S. 0. 1 Tyr. 451, 1 Crom. 
 f ',Jerl"587. Where the plaintiff claimed land under a lease from a corporation, and the de- 
 .fend^set up that the corporation had re-entered for rent and then demised to him ; held, 
 {hatthebooks of the trustees of the corporation could not be used to prove such re-entry. 
 Jackson, ex dem. Donnally v. Walsh, 3 John. Rep. 226. 
 
 But in an action by a turnpike company to recover the amount of stock subscribed by a 
 person, the books of the company are admissible evidence to show that they have pursued 
 the course pointed out by their charter. Grays v. Turnpike Company, 4 Rand. Rep. 578. 
 The Highland Bank v. WKean, 10 John, Rep. 154. 
 
 The books of a banking corporation have been held evidence in a suit on a note brought 
 t>y the bank against the endorser, a stranger, to prove the election of its officers ; and this 
 was adjudged sufficient, prima facie, to show that the bank had complied with the previous 
 requisitions of their charter, and that it had a legal existence. Wood v. The Jefferson Co. 
 Bank, 9 Cow. Rep. 194, 205. Seo The State v. Buchanan, 1 Wright's Rep. 233. 
 
 The books of a corporation, a bank for instance, have been allowed as evidence for them, 
 in suits against strangers, in aid of the testimony of a witness who had made an entry 
 
DEPOSITION OF DECEASED "WITNESSES. 147 — 1 
 
 (e) Depositions of witnesses deceased or unable to travel. 
 
 By stat. 11 & 12 Vict. c. 42, s. 17, after directing justices to take the 
 statement on oath or affirmation of the witnesses, against a person 
 
 therein, the truth of which -was in question. Farmers & Mechanics Bank v. Boraef, 1 Rawle, 
 152. This seems, however, to have been upon the principle which allows memorandums, 
 made of a transaction at the time, to go' to the jury, under certain circumstances, along with 
 the testimony of the person who made it. The court slightly advert also, in support of their 
 decision,' to the doctrine allowing previous consistent declarations of a witness to be given 
 in evidence in corroboration of his oath: In this respect the entries in the books of a cor- 
 poration would obviously stand upon the same footing as a similar entry in a tradesman's 
 book. And there are many cases where the entries in the books of banks', have been both 
 admitted, and rejected, upon grounds which are as well applicable to books of individuals. 
 
 And it may be well to observe here, that these books of incorporated banks, &c, stand 
 upon a different footing, generally, in this country, from the books of the bank of England. 
 The former are not public books, in the sense in which that term is understood by the courts , 
 except as among the members of the corporation. In other cases, the rules of admissibility 
 in regard to them, as well as the mode of authenticating entries in them, are not essentially 
 variant from those which relate to books of a mere private nature. See Ridgway v. Farmers 
 Bank of Bucks County, 12 Serg. & Rawle, 256. 263; The Philadelphia Bank v. Officer, 12 
 Serg. & Rawle, 49 ; Courtney v. The Commonwealth, 5 Rand. 66 ; Angell & Ames on Corp. 
 406, 1, 8, 9. 
 
 The corporation of a city, and municipal corporations generally, differ from a private cor- 
 poration, in respect to the matters we are considering. An agent of the corporation of the 
 city of New- York, for instance, sued for aet3 done by order of the corporation, in removing 
 obstructions in a street, may, in his individual capacity, avail himself of the minutes and 
 books of the corporation in his defence. "It" (the corporation of the city) "more nearly 
 resembles," say the court, adverting to the distinction noticed, "the legislature of an inde- 
 pendant state, acting under a, constitution prescribing its powers. The acts of this corpora- 
 tion concern the rights of the inhabitants of the* city ; it exercises a delegated power, not 
 for its own emolument, but for the interests of its constituents; and while it keeps within 
 the limits of its authority, the constituents are bound by the acts of the corporation. "When 
 the citizen wishes to show those acts, he must resort to the authentic record of them, which 
 is the original minutes of the corporation." This, it seems, is the best evidence. Denning 
 v. Eoome, 6 Wend. 651. 
 
 The official tax books of the corporation of the city of Washington, made up by the reg- 
 ister, from the original returns of the assessors laid before the board of appeals, are evidence 
 to show the tax assessed upon an individual ; the assessor's original returns need not be pro- 
 duced. Ronkendorf v. Taylor's Lessee, 4 Peters' Rep. 349. "The book was made out by an 
 officer in pursuance of a duty expressly enjoined by law. This not only makes the tax book 
 evidence, but the best evidence which can bo given of the facts it contains." Id. In Ken- 
 tucky, the minutes of the trustees of Louisville, and other towns in the commonwealth, aro 
 competent evidence on trials as to town property. But there is no provision authorizing 
 their verification by the clerk's certificate. It would seem to follow then, say the court, 
 that they ought to be verified by oath, and proved to be true copies from the real book of 
 the trustees kept by the proper officer and recognized by the board as such. Dudley v. 
 Grayson, 6 Monroe, 259. But on writ of error, unless the objection to the admissibility in 
 the .court below was distinctly on the ground that the paper was not sufficiently authenti- 
 cated, the court will not notice it, but will only regard the objection as one of relevancy or 
 competence. Id. 
 
 - The Virginia legislature, by statute, vested certain trustees with 1 00 acres of iand to be 
 appropriated partly as a present to settlers and partly for the benefit of the proprietors ; held, 
 that the books and other records of the trustees, (called in the case a corporation,) being 
 
147 — 2 EVIDENCE. 
 
 charged before them with an indictable offence, as mentioned ante, p. 
 35, — it is enacted, that if afterwards upon the trial of the person ac- 
 
 first shown to be in the hand-writing of the proper officers of the board, were admissible in 
 evidence. The court said the trustees were established for public purposes ; and their books 
 were the best evidence of their acts and proceedings. Owvngs v. Speed, 5 Wheat. 420. 
 And in Massachusetts, a proprietary book of ancient date has been held admissible, without 
 proving the entries by the clerk of the proprietors who made them. The Proprietors of 
 Monumoi v. Rogers, 1 Mass. Rep. 159. See Pitts v. Temple, 2 id. 538. The sales book of 
 the proprietors of Cincinnati, has been admitted as to early sales. William's lessee v. Bur- 
 net. 1 Wright's Eep. 53. An ancient book of records of the town of Boston, entitled the 
 book of possessions, which, although not regularly authenticated, had been preserved among 
 the records of the town, was held competent and sufficient evidence to establish ancient 
 titles under allotments from the town. Bust v. The Boston MiU Corporation, 6 Pick. 158. A 
 book of the proprietors of common lands, was allowed in evidence in tracing title, on a wit- 
 ness stating that it had been formerly in the possession of his grand-father, whose executor 
 had it thirty years, and then delivered it to the witness ; the presumption from lapse of time 
 being, say the court, that the witness had the lawful custody of it, and there being no evi- 
 dence of the present existence of the proprietary with a clerk to keep the books and records ; 
 and there being no place appointed by law for the deposit of such books when a proprietary 
 becomes extinct. Tolman v. Emerson, 4 Pick. 160, 163. 
 
 The town record books in New Hampshire, may be used by selectmen in justifying their 
 doings as such, to show their appointment by a meeting of the inhabitants ; and also to 
 show a tax voted at such meeting. Bishop v. Gone, 3 N. H. B. 513. See MFadden v. 
 Kingsbury, 11 Wend. 6G9. The record of the appointment, and proof that the selectmen 
 had acted under it, was held in this case proper evidence to be submitted to the jury, as in 
 favor of the selectmen, from which to infer that the meeting, at which the selectmen were 
 appointed, was a legal one in all respects. Bishop v. Gone, supra. It seems that a record 
 like the above, when erroneous, may be amended by the clerk so as to conform to the truth, 
 by motion to the court on behalf of the selectmen. Id. See Wells v. Baltelle, 11 Mass. Rep. 
 477; Taylor v. Henry, 2 Pick. 397. 
 
 The chest of an incorporated company, kept by their clerk for the time being, is the proper- 
 custody for old documents relative to the admission of freemen and other acts of the ' com- 
 pany ; but the private house of a former deceased clerk, is not the proper custody for a con- 
 vention dated in the reign of Ed. 4, between the then Prince of Wales and the corporation. 
 Shrewsbury v. Hart, 1 Carr. & Payne, 114. 
 
 Several cases relating to the mode of authenticating these books were introduced ante. 
 The book of a corporation must in general be identified ; and it must be shown that the 
 book was kept and the entries were made by the proper officer, or some other person in his 
 necessary absence. Highland Turnpike Company v. WEean, 10 John. Rep. 154. Gainesy. 
 The Tombeclcbee Bank, 1 Alab. Rep. 50. It is not enough that the book is in the hand writ- 
 ing of a person stated therein to be secretary, and that the witness producing it received it 
 from such person. Highland Turnpike Co. v. W Kean, supra. Nor is it sufficient merely 
 that the book is proved by a former secretary or clerk to have been handed down to him as 
 the corporation book. Martin v. Gunby, 2 Harr. & John. 248. 
 
 As to the admissibility of bank-books, see ante. In England, mere sworn copies of the 
 books of the bank of England are evidence. It is otherwise as a general rule in respect to 
 the books of banks in the United States. In assumpsit against a bank on a bill drawn by 
 its president, his authority to draw was denied. To prove one item in his case, the plaintiff 
 offered examined copies from tlio discount book of the bank of Pennsylvania, a third per- 
 son. Held, inadmissible ; as the original should be produced. The court denied that this 
 came within the rule, tliat whore an original is of a public nature and admissible in evi- 
 dence an examined copy is evidence, per se. To make it admissible, if so at all, there must 
 be proof that the original was made by an officer of the bank ; the officer himself to prove 
 this if to be found, and if not, his handwriting to be proved. The court admitted the con- 
 
DEPOSITION OF DECEASED WITNESSES. 147 — 3 
 
 cused, it shall be proved, by the oath or affirmation of any credible wit- 
 ness, " that any person whose deposition shall have been so taken as 
 
 trary rule as to the bank of England; but said that their books are truly of a public nature. 
 But to give that name to the books of the bank of Pennsylvania, and on the same principle 
 to those of incorporated insurance companies, &c, with which the country has been inun- 
 dated, might produce serious consequences. "We know," say the court, "that these books 
 are often badly kept ; and it would be dangerous to admit copies in evidence when the orig- 
 inals may be easily had ; nor should the originals be admitted without proof by whom the 
 entries were made." Bidgway v. Farmers Bank of Bucks County, 12 Surg. & Eawle, 256, 
 263. 
 
 In Philadelphia (Bank v. Officer, 12 Serg. & Eawle, 49,) it was held, that the entries in a 
 book of an incorporated bank, were not admissible, as between third persons, to show a de- 
 posit of money, unless it be first proved that the clerk who made the entries was dead, or 
 beyond the reach of process ; and this, though it was admitted that the entries in question 
 were made by J. M., who was clerk at the time. The rule has subsequently been laid down 
 thus: "I take it to be a general and established principle, that neither copies of the books 
 of an incorporate bank, nor the books themselves, are admissible against any other than the 
 bank, or without proof being first made by whom the entries in the book were made ; and 
 that the proper witnesses to make such proof are the clerks by whom the entries were made, 
 if to be found within the jurisdiction of the court, but if dead or out of the jurisdiction of the 
 court, proof may be made of their hand-writing." Gochenauer v. Good, 3 Pennsyl. Eep. 274, 
 280, by the court, Kennedy, J., delivering the opinion. It seems, however, that where a 
 bank is located at a great distance from the place of trial, or where the books are required 
 to be in different places at the same time, an examined copy from the books, with proof that 
 the original entries were made by an officer of the bank, (proved by himself to be found, and 
 if not, with proof of his hand writing,) would be competent evidence. Id. 280, 1. 
 
 Mere certified copies would not be admissible unless rendered so by statute. HaUowell & 
 Augusta Bank v. HamUn, 14 Mass. Eep. 178. 
 
 In Massachusetts it has been said, that clerks of religious and other corporations, and other 
 recording officers, may certify copies of their records ; and in doing so, act under the obliga- 
 tion of an oath of office, and their certificates are evidence. Oakes v. Hill, 14 Pick. Eep. 
 442. See Sawyer v. Baldwin, 11 Pick. Eep. 494; Stebbins v. Jennings, lO.id. 188. The 
 general rule, however, is otherwise, and, unless through the intervention of a statute, mere 
 certified copies of corporation records and minutes are inadmissible. See Dudley v. Gray- 
 son, 6 Monroe, 259. Also The Hallowell & Augusta Bank v. Hamlin, 14 Mass. Eep. 178, 
 supra. And note ; the proceedings of churches and ecclesiastical bodies, generally, may be 
 proved by parol, though minutes be kept of them by their clerks. Charleston v. Allen, 6 
 Verm. Eep. 633, 639. Bow v. Hinesman, 2 Aik. Eep. 18. See Riddle v. Stevens, 2 Serg. & 
 Eawle, 537, where the minutes of a presbytery were held evidence to prove certain facts ; e. 
 g. the suspension of a minister, on due complaint made ; but not to show the facts upon which 
 it was founded. 
 
 The record of a certificate of incorporation of a religious society, is not evidence of the fact 
 of incorporation. The certificate itself must be produced. Jackson, ex dem. Walton, v. Leg- 
 gett, 7 Wend. 377. 
 
 Where it was referred to the court to determine whether a book produced was the record 
 of a church : it appearing that during the whole time it was kept, the ministers of the parish 
 and pastor of the church kept it wholly or principally, he being the proper officer to keep 
 such a record ; and being kept in form of a record, and containing a regular statement of the 
 admission of members, the choice of officers, and the transaction of the regular business of 
 the church ; held that such book was to be considered the record book of the church. Saw- 
 yer v. Baldwin, 11 Pick. Eep. 492. 
 
 As to the effect of lapse of time in dispensing with proof of the hand writing of the entries 
 in corporation books, see Davies v. Morgan, 1 Price's P. 0. 77, cited 2 Harr. Dig. 1081. S. 
 C. 1 Tyri 457; 1 Crom. & Jer. 587. See also ante, where some cases were introduced bear 
 
147 4 EVIDENCE. 
 
 aforesaid, is dead, or so ill as not to be able to travel, — and if also it be 
 proved that such, deposition was taken in the presence of the person so 
 accused, and that he or his counsel or attorney had a fall opportunity 
 of cross-examining the witness, — then, if such deposition purport to be 
 signed by the justice, by or before whom the same purports to have 
 been taken, it shall be lawful to read such deposition as evidence in 
 such prosecution, without farther proof thereof, unless it shall be prov- 
 ed that such deposition was not in fact signed by the justice 
 [*148] purporting to sign *the same." And it may be read before 
 the grand jury, for the purpose of finding the bill, as well as 
 before the petty jury at the trial.(a)[l] 
 
 (a) B. v. Clements, 20 law J. 193 m. 
 
 ing on this subject. In an actian for tolls claimed by the lessee of a corporation, an ancient 
 schedule, produced from among the muniments of the corporation, copies of which had been 
 delivered to the lessee and acted upon by him, were held admissible evidence for the lessee. 
 Breet v. Beaks, 1 Mood. & Malk. 419. 
 
 [1] The statutes of New York make ample provision for securing testimony which could 
 only be received viva voce at the common law. It may be reduced to writing out of court, 
 on examination, at various stages of the litigation. 
 
 1. In perpetuam rei memoriam, and de bene esse. In any suit commenced, or yet to be 
 brought in a court of record, the testimony may be perpetuated by either party according to 
 the statute. 2 E. S. 398 to 400, pt. 3, ch. 7, tit. 3, art. 5. Tillinghast's Forms, 639, 640. 
 
 For this purpese draw up an affidavit or affidavits. See forms, Tillingh. 254, 255, and 
 Att's N. T. Pr. 209 ; Oain. Pr. 441, 2. In this, as in other statute forms,, follow as nearly as 
 may be the words of the statute. It need not show the probable -inability of the witness. 
 Jackson, ex dem. Ten Eyck v. .Perkins, 2 Wend. 308. The technical expressions of, "as this 
 deponent is advised by counsel and verily believes," may be omitted in respect to the wit- 
 ness' materiality; (Cain. Pr. 442 ;) though clearly they would not vitiate. Present the proof 
 to a justice of the Supreme Court,, or a commissioner authorized to perform his duties at cham- 
 bers, (which includes circuit judges, (2 R. S. 201,) supreme court commissioners, (id. 279, 
 280,) recorders, judges of the county court of the degree of .counsel in the Supreme Court 
 and judges of the superior court of law in the city of New York; (id. 281 :) or to the first 
 judge of the county court, or to a master in chancery. The affidavit may be taken before 
 either of these officers, or any judge of any court of record, or commissioner of deeds,, (id. 
 284.) What are courts of record, vid. id. 276, viz. : court of errors, chancery, supreme and 
 circuit courts, courts of oyer and terminer, common pleas, general sessions and mayor's 
 courts. Though the opposite party be infants, the testimony may be taken in this form, if 
 the suit be actually pending. Remark of the Revisers. So in case of a suit yet to he 
 brought, where the party applying is an infant. Id. The officer then appoints the place 
 and time of examination. The former must bo within the county where the witness resides.; 
 and the latter not less than 14 days from the date of the order. The order should, mention 
 the time. If not, 14 days will be taken as intended. 2 Wend. 308. See form, Tillingh. 273, § 
 12 ; Att's N. Y. Pr. 299 ; Cain. Pr. 443. Serve the order on tbo opposite party, or the antici- 
 pated party, at least 10 days before the time of hearing, (exclude the day of service and in- 
 clude the day of hearing, Rule 62, Supreme Court, Oct. term. 1829,) by showing, the original 
 order and delivering a copy, (Cain. Pr. 20, 21, 22, 444,) of which an affidavit should be pror 
 duced to the officer on tho day of hearing. See form, Cain. Pr. 21. Vary it for the party, 
 instead of the attorney, as there. The officer will also, on application, at. the time of the 
 order or after, issue a summons for the witness, returnable on the day of examination. See 
 form, Tillingh. 274. For the manner of service, vid. 2 R. S. 401. If he do not appear at 
 
DEPOSITION OF DECEASED WITNESSES, 148 
 
 The statutes relating to the examination of witnesses against a priso- 
 ner before a justice of the peace, previously in force,(a) contained no 
 
 (a) 1 &~2 Ph. & M. c. 13 ; 2 & 3 Ph. & M. u. 10, and 7 Geo. 4, o. 64. 
 
 the time, draw up an affidavit of service, (see form. Tillingh. 255, and Cain. Pr. 447 ;) and 
 the officer will grant a warrant to bring him (see form. Tillingh. 641, and Cain. Pr. 450,) on 
 the same day, or at some future time to which the officer may adjourn. If the witness ap- 
 pear on the summons, .you may proceed ex parte, after waiting half an hour, (the usual time 
 of attending on a judge's order, (Cain Pr. 20,) upon producing the affidavit of duly serving 
 the order. Then, or whenever the witness and opposite party appear, you proceed to the 
 examination, prosecuting it on that day and other days to which the officer may adjourn till 
 it be closed, as directed by the statue. Appearance and cross-examination waives notice. 
 Jackson, ex dem. Ten Eyckv. Perkins, 2 "Wend. 308. The deposition is to be captioned, (vid. 
 form, Tillingh. 641, Cain. Pr. 444, 446, Att's Comp. 210,) and the testimony reduced to writ- 
 ing with great care, (Cain. Pr. 444,) when it is to be read, subscribed and certified, (vid. 
 Tillingh. 641, Cain. Pr. 445, Att's Comp. 210,) as directed by the statute, and filed as there- 
 in directed, with the original order, affidavits and proof of service. In prosecuting the de- 
 position, after the caption, begin on a new line thus : " The above named A. B., aged 
 
 years, being duly sworn, deposeth and saith,'' &c. Cain. Pr. 445. The following may be 
 the form of the oath : " You will," (if on the Evangelist,) or, if the witness desires it, " You 
 do swear, in the presence of the ever living God, that you will," or, if scrupulous of taking 
 an oath, "You do solemnly, sincerely and truly declare and affirm, that you will," (vid. 2 
 R. S. 497,) " true answers make to such questions as I shall put or permit to be put to you 
 touching the matter now officially before me." If there be a cause actually pending, add, 
 "and depending between John Doe, plaintiff, and Richard Roe, defendant." Mr. Caines 
 says, as to the old statute, that the examination must be conducted as in other cases of 
 viva voce examination in court. Cain. Pr. 445. The examination on the part of the pro- 
 ducer being finished, the cross-examination, if any be intended, commences, prefacing it as 
 follows: "The aforesaid A. B. being cross-examined, says," &c. "When the whole deposition 
 is thus taken, it should be read over to the witness, who may then explain any part of his 
 testimony, which he conceives to be improperly stated, or he may correct any part on a 
 better recolleet'ion of the facts. Cain. Pr. 445. If the witness refuse to testify or answer 
 any proper question, he may be committed. For the general form of a commitment, (vid. 
 Cain. Pr. 451.) If the witness be wrongfully committed, relief must be sought by a habeas 
 corpus. Id. 454, 2 R. S. 563. On the trial, the inability to obtain the viva voce testimony 
 of the witness must be shown from one of the causes mentioned in the 39th section of the 
 statute, or it cannot be received; and by the next section, the competency and admissibility 
 of the witness or his testimony are to be tested by the same rules as if he were examined in 
 open court. The inability to attend must be proved ; and the party cannot rely upon the 
 presumption of this, arising merely from the advanced age of the witness. Jackson ex dem. 
 Montressor v. Rice, 3 "Wend. Rep. 180. But proof by one that a witness is 74 years of age, 
 and by another that from his knowledge of her situation and infirmities, he believed she 
 could not endure the fatigues of the journey, without seriously hazarding her health, is suffi- 
 cient. Jackson ex dem. Ten Eyck v. Perkins, 2 "Wend. 308. Pending the proceedings before 
 one officer, he may by the 41st section transfer the examination to another officer residing 
 in the same county with the witness. This may be by order, endorsed on the original thus: 
 " Ordered that the within mentioned examination be had before E. C, circuit judge, resid- 
 ing in the county of Saratoga. The latter then takes the place of the first officer with the 
 same powers, all the papers of course being transferred to him. 
 
 By § 39, an examination in perpetuam rei memoriam may be used in the case of witnesses 
 disabled to attend and give evidence by reason of death, insanity, old age, sickness, or settled 
 infirmity. In such case, the deposition, or a certified copy, is evidence between the parties 
 or those claiming under him. 
 
 51 
 
148 — 1 EVIDENCE. 
 
 such enactment as the above ; and yet it was determined in many Cases, 
 and well recognized as a rule of the common law, that in all cases of 
 
 2. De oene esse. Another mode of securing oral testimony is by the 2 R. S. 391, pt. 3, oh. 
 7, tit. 3, art. 1. Tillingh. Forms, 642. This mode is given where the witness in a suit al- 
 ready commenced by actually serving process, ia.about to depart from this state, or so sick and 
 ' nfim as to afford reasonable ground for apprehension that he will not be able to attend the 
 trial. It will be perceived that the latter cause is completely covered by the proceeding in 
 perpetuam, &c., but not the probable departure. The proceedings and their effects are so 
 similiar in all respects to that under the statute to perpetuate, &c, that they need not be 
 particularly considered here. Instructions upon one statute will guide as to the other. The 
 difference will readily be suggested by the statutes themselves. This is a proceeding which 
 constituted a part of the common law of New York. Mumfordv. Church, 1 John. Cas. 147 ; 
 Scmdford v. Burrell, Anth. N. P. Rep. 184 ; Jackson ex clem. Green v. Kent, 7 Cowen's Rep. 
 59, 63 ; Waity. Wliitney, id. 69 ; Packard v. Hill, id. 489. The forms of proceedings to take 
 testimony previous to the statute are given in 7 Cowen's Rep. 60 to 63 ; and in Cain. Pr. 
 433 to 438. And the revisers, in their note reporting the statute, declare that the details are 
 taken from the above cases, and from the act to perpetuate testimony in certain case. 1 R. 
 L. 455, by Woodw. & Van Ness. The act seems to be declaratory of the common law, so 
 far as power or jurisdiction may be in question; and there can be little doubt that it does 
 not mean to take away the old right of the courts to interfere wherever the party shall ap- 
 pear to be in danger of losing the evidence ; as if the suit be commenced without process, or 
 the witness be a prisoner of war, Ac., &c. But in the cases mentioned by the statute, the 
 proceedings must be in strict conformity with its provisions ; otherwise the evidence will be 
 inadmissible; and so where it shall appear that the notice to attend was insufficient, or that 
 the examination was not in all respects fair. 2 R. S. 393, § 8. The following suggestions 
 are applicable to all examinations of this character; "The witness must he interrogated as 
 on a trial. His deposition on interrogatories before administered, or on a detail of facts be- 
 fore related and reduced to writing, cannot be taken to the judge, then sworn to, and the 
 witness interrogated to the facts of such deposition. But, to every fact to he deposed to, 
 the witness must be interrogated, and his answer to each taken down in writing as it is 
 made ; for it would be dangerous in the extreme to admit of a deposition antecedently pre- 
 pared, in the phraseology of the person who put it to paper. This point was ruled by Mr. 
 Justice Livingston, in a case where the defendant's attorney attended with an affidavit 
 ready drawn up, in which every fact making for the defendant was fully sworn to. But on 
 a viva voce examination, the witness totally destroyed his testimony in writing; and the suit 
 
 was almost immediately settled." Murray v. The Ins. Co., Cain. Pr. 437. The same 
 
 doctrine is sanctioned under the statute of the U. S. Richardson v. Golden, 3 "Wash. C. C. 
 Rep. 109. And vid. V. S. v. Smith, 4 Day's Rep. 121, S. P. and Bellv. Morrison, 1 Peters' 
 S. C. Rep. 351, 355. If the witness be a transient person, then that he said at his examina- 
 tion he was going to leave the state, and had not since been seen by the witness who proves 
 the declaration, is sufficient to let in the deposition. Guyon v. Lewis, 7 Wend. 26. It was 
 formerly doubted how the preliminary steps to the examination should be shown upon the 
 trial. Jaclcson, ex dem. Green v. Kent, 7 Cowen's Rep. 59. But the papers on file are now 
 sufficient, unless impeached. 2 R. S. 392, 3, § 7, 8. 
 
 3. The above examination can be had in those cases only, where the witnesses to be ex- 
 amined within the state. Another ancient and usual proceeding, is to examine witnesses 
 residing or being without the state under the statute, (2 R. S. 393 to 396, pt. 3, ch. 7, tit. 3, 
 art. 2 • Tillingh. Forms, 632 ;) upon commission or dedimus potestatem. All the requisite forms 
 under this head will be found collected or referred to in Tillingh. Forms, 632 to 638. The 
 forms of proceedings upon the former statute on the samo subject may be seen in Atts. Comp. 
 206 to 208, and Cain. Pr. 400 to 420. The words of the present statute are, "any witness 
 not residing within this state," (§ 11 ;) of the old statute, (1 R. L. Woodw. & Van Nes. 519, 
 § 11,) " If any witness shall not reside in this state." Upon the latter statute, which is sub- 
 stantially liko the former, it was held, (Pooler v. Maples, 1 Wend. Rep. 65,) that it extended 
 
DEPOSITION OP DECEASED WITNESSES. 148—2 
 
 examinations of witnesses in cases of felony under those statutes, in 
 the presence of the accused, and where he had the opportunity to cross- 
 examine them, the deposition of a witness might be read against the 
 accused upon his trial, if the witness were then dead,(a) or bedridden, 
 and not likely to be ever able to attend at the assizes,(6) or unable to 
 travel, (c) or had become insane,(<f ) or was kept out of the way by or 
 on behalf of the prisoner.(e) And it is probable that although the 
 cases of death and inability to travel from illness alone, are expressly 
 stated in the statute, as those in which the deposition of a witness may 
 be read against a prisoner on his trial, it may be holden that such de- 
 positions may also be read in evidence, if the witness be bedridden, 
 though ptherwise not in ill health, or if he have become insane, or if 
 he be kept out of the way by the prisoner or by some person on his 
 behalf, at the time of the trial. 
 
 Where an objection was made to the admission of a deposition in evi- 
 dence at the trial, because the caption of it stated no offence in law, it 
 merely stating that the prisoner was charged with obtaining money and 
 other valuable security for money from Mary Eowe, not stating by 
 
 (a) 2 Hawk. o. 46, s. 15. R. v. Smith, R. (d) R. <r. Marshall et al, Car. & M. 14*7. 
 
 & Ry. 339. R. v. Osborne, 8 Car. & P. 113. (e) 2 Hawk. o. 46, s. 15. R. v. 
 
 (6) R. v. Wilshaw, Car. & M. 145. et al., Car. & P. 47 1, per Parke, B. 
 (c) 2 Hawk. c. 46, s. 15. 
 
 to a witness whose domicil is in this state, but who is temporarily out of the state engaged 
 in work, e.g. as a oontracter in constructing a canal in Pennsylvania. Most of the cases on 
 the old statute will he found collected in 1 Dunl. Pr. 543 to 550, 2 John. Dig. Practice, xxiv. 
 and Cowen's Digested Index, tit. Commission to Examine Witnesses and Practice in Crimi- 
 nal Cases, No. 45. Vid. farther, 1 Wend. Rep. 18, 27, 65, 283; 2 id. 64, 242, -627, 646; 6 
 id. 475, 6, 480, 1 ; 7 id. 513, 514, 520 ; 9 id. 444; 2 Hall's Rep. 502. Formerly, the motion 
 for this commission could be made in court only; and this is still so, except as to the Su- 
 preme Court. In that court, not only is the proceeding expedited by the monthly terms, 
 but the motion may, in effect, be granted at any time in vacation by a justice of the Supreme 
 Court or a circuit judge. On ten days notice, he makes an order for the commission. 2 R. 
 S. 393, § 12. Most of the books cited apply of course to the old statutes ; indeed all except 
 the new statutes, the remarks of the revisers, and Mr. Tillinghast's new book of forms, with 
 a few recent cases in Wendell and Hall. But the older authorities and precedents will he 
 found powerful auxiliaries in practicing under the new statutes. The difference between 
 the old and new statute concerning the taking of testimony by commission, as pointed out 
 by the revisers in their notes, is as follows : " sec. 10, one commissioner sufficient ; sec. 12, 
 commission may be ordered in the Supreme Court by a single justice or circuit judge ; see. 
 18, enlarges the number of eases in which a commission may be received from another be- 
 sides the agent ; sec. 21, agreement (and manner of carrying it into effect,) of the attorneys 
 as to the mode of returning the commission ; sec. 23, reserving the right to object to .the 
 competency of the witness on the trial ; the competency or relevancy of the interrogatory, 
 (vid. 2 Wend. 64, S. P.,) or any answer given ; sec. 24, allowing a commission on interlocu- 
 tory judgment, and allowing the evidence taken thereon to be used in assessing damages." 
 By the 2 R. S. 731, pt. 4, ch. 2, tit. 4, art. 2, § 73, 74, 75, the provisions of the above sta- 
 tutes relative to taking testimony de bene esse and upon commission are applied to issue upon 
 indictments. The right of examination is however confined to defendants. 
 
148 — 3 EVIDENCE. 
 
 false pretences, &c. : the judges held that there was nothing in the ob- 
 jection ; it was not necessary that there should be a heading or caption to 
 the deposition, to render it admissible in evidence, it was sufficient that 
 it appeared to relate to the charge on which the prisoner was tried.(a) 
 
 (/) Deeds and other private written instruments. 
 
 Deeds, and all other instruments of a private nature, must be proved 
 by the attesting witness, if there be any ; or if there be no attesting 
 witness, then by proof of the party's handwriting.(5) But where a 
 deed or other writing is thirty years old, it proves itself, (c) So, if the 
 attesting witness be dead, or have become insane or blind, or be abroad 
 
 out of the reach of the process of the court, or if, after a bona 
 [*149] fide serious, *and diligent inquiry he cannot be found : in those 
 
 cases the instrument may be proved, by proving the witness's 
 handwriting.(cf)[l] 
 
 (a) R. v. Langbridge, 2 Car. & K. 915. (c) Bui. BT. P. 255. Gilb. Ey. 94. 
 
 (6) ailb. Ev. 99. 7 T. R. 266. Peake, 198. (d) Arch. PI. & Ev. Civ. Act. 421-423. 
 
 [1] If the subscribing witness fails to prove the due execution of the instrument, the party- 
 may establish the fact by other evidence. Whitaker v. Salisbury, 15 Pick. 534, 543, 4. 
 Sigfried v. Levan, 6 Serg. & Rawle, 308. Taylor v. Meekly, 4 Teates' Kep. 19. Pattersons. 
 Tucker, 4 Halst. Rep. 322. Miller's estate, 3 Rawle, 318. Boxer v. Rabefh, 1 Gow's Rep. 
 175. Boyer v. Norris, 1 Harringt. Rep. 22, 23. Even should the witness deny his attesta- 
 tion, or give evidence tending to disprove the execution, (which he is competent to do though 
 he confess his signature,) the party may contradict him. Whitaker v. Salisbury, 15 Pick. 544. 
 Sigfried v. Levan, 6 Serg. & Rawle, 308. Taylor v. Meekly, 4 Teates' Rep. 79. Eali v. 
 Phelps, 2 John. Rep. 452. Handy v. The State, 7 Harr. & John. 42, 48, 9. Eolloway v. Law- 
 rence, 1 Hawks' Rep. 49, 50. Booker v. Bowks, 2 Blackf. Rep. 90. Vernon v. Eammet, 1 
 Hill's Rep. 269. The witness' hand-writing may be proved, notwithstanding his doubt or 
 denial of it; and this has been called the most usual and direct proof; but, in such case, it 
 ought to be very clear and satisfactory. Pearson v. Wightman, 1 Rep. Const. Ct. So. Car. 
 336. And where the hand-writing is distinctly proved, the instrument is to be read to the 
 jury, and if they find the fact of execution, the court will not disturb the verdict. Id. Pat- 
 terson v. Tucker, 4 Halst. Rep. 322. 
 
 The party calling the witness, however, will not be allowed to impeach his character for 
 truth. Whitaker Y. Salisbury, 15 Pick. 544. Brown v. Bellows, 4 id. 194. Though it has 
 been held that he may prove previous contradictory statements of the witness. Brown v. 
 Bellows, 4 Pick. Rep. 179, 187, 8, 194. Cowden v. Reynolds, 12 Serg. & Rawle, 281. Sigfried 
 v. Levan, 6 id. 308, 314. See Crowell v. Kirk, 3 Dev. 357, per Ruffin, J. It is difficult, 
 however,' to reconcile the latter cases with the general rule which forbids that a party shall 
 be allowed to impeach his own witness. See on this subject, Whitaker v. Brown, 15 Pick. 
 
 544, 5. 
 
 Sometimes a subscribing witness when called on can recollect nothing of the execution, 
 not even the act of signing by the party, independant of the fact of finding his (the witness') 
 name attached to the attestation. It seems to be well settled that, in such cases, if the wit- 
 ness in addition to identifying his signature, can say that he never attested a wntmg, with- 
 out seeing it executed, this will amount to very cogent evidence of the execution. It 
 furnishes a presumption ranging in principle, along with those which arise from artificial 
 habits, of which there are many. The attestation of the witness, in these and similar 
 instances, has been likened to a memorandum, used to refresh his recollection; and, vn ascer- 
 
DEEDS AND OTHER PRIVATE "WRITTEN INSTRUMENTS. 149 
 
 The handwriting may be proved by any person who has seen the 
 party write, or who knows his handwriting from having corresponded 
 with him, particularly if he have acted upon the letters he received 
 
 taining how far the witness must go in order to allow the point of execution to he submitted 
 to the jury, the reader may be materially aided by several of the cases stated in Cowen & 
 Hill's Notes to Phillipps on Evidence, on the examination of witnesses, where the general 
 subject of memoranda is considered, and several dicta bearing directly upon the present 
 inquiry, introduced. See particularly The State v. Rawles, and Collins v. Lemastus, cited in 
 Cowen & Hill's Notes to Phillipps on Ev., part 2, p. 393 et seq. ; also Pearson v. Wighiman, 1 
 Rep. Const. Ct. So. Car. 336; Dan v. Brown, 4 Cowen's Rep. 486, 489. If the witness 
 recognizes his signature, and says, that he lias no recollection of the fact of its being exe- 
 cuted in his presence, but that seeing his signature to it he has no doubt he saw it executed ; 
 this has always been received as sufficient proof of execution. Per Bay ley, J., in Maugham 
 v. Hubbard. 1 Mann. & Ryl. 1. See also Russellv. Coffin, 8 Pick. Rep. 143 ; per Ewing, C. 
 J., in Den v. Downam, 1 Green's Rep. 142; Merrill v. The Ithica & Owego Rail Road Co. 
 16 Wend. 598 ; Curie v. Donald, 1 "Wash. Rep. 58 ; Denn, ex dem. Gaston, v. Mason, 1 Coxe's 
 Rep. 10, and note at p. 11; Patterson v. Tucker, 4 Halsl. 322, 332, 3; per Sutherland, J., 
 delivering the opinion, in Jackson, exdem. Bowman, v. Ghristman, 4 Wend. 211, 282 ; Wheel- 
 er v. Batch, 3 Fairf. 389 ; Brown v. Anderson, 1 Monroe, 198. Accordingly, in Hall v. Luther, 
 13 Wend. 491, a subscribing witness to a bond, given by an under sheriff with sureties, to 
 the sheriff, swore that he remembered the sheriff was, on the day of its date, taking bonds 
 of his deputies, that he recollected seeing some of the obligors at the time, but could not 
 say he saw A. and B., two of them ; he however, recognized his own hand-writing, and 
 presumed he saw all the obligors sign or heard them acknowledge it, or he would not have 
 witnessed it ; held, prima facie sufficient to entitle the instrument to be read in evidence. 
 See Miller's estate, 3 Rawle, 312, 317, 318. Where one of two subscribing witnesses to a 
 deed did not recollect witnessing it, but identified his own hand writing, and said he had no 
 doubt he saw it executed, "as he was not in the habit of signing his name to what he did 
 not see executed;" it appearing also, that the other witness was out of the state, and proof 
 being given of his hand writing: Held, sufficient to allow the instrument to go to the jury, 
 unless there was reason to suspect or believe the deed to be a forgery. Russell v. Coffin, 8 
 Pick. Rep. 143. A subscribing witness to a warrant of attorney swore, that from certain 
 memoranda he found, he was at a given place on a particular day, being the day the warrant 
 bore date; that his name subscribed . thereto was his own hand- writing ; that the seal ap- 
 peared to have been taken from an engraving then and still in his possession ; and that from 
 these circumstances, he was convinced he was present and witnessed the execution of the 
 instrument: This was adjudged enough to authorize a jury to pronounce the instrument 
 duly executed although the witness had not sworn to the person's hand writing who was 
 alleged to have executed it, nor that the same was executed by such person. It is possible, 
 say the court, that the witness may have quibbled, and that he saw the instrument executed 
 by some other person than the party; but, this approaches so near to perjury, that it is not 
 to be presumed in respect to a man of unimpeached character. If his character had been 
 proved bad, the jury might have. disregarded the evidence. Pigott v. Salloway, 1 Binn. Rep. 
 436. In Collins v. Lemasters, 2 Bail. Rep. 141, a witness to a deed recognized his own 
 signature, and was induced- to believe from that circumstance, that it was executed in his 
 presence ; he remembered the parties to it being together at the time of the supposed exe- 
 cution, but had no recollection of having seen them sign, seal, deliver, or of hearing them 
 acknowledge the deed: And held, that this was enough to authorize the deed to go to the 
 jury. The other subscribing witness was then called by the opposite party, who swore that 
 one of the parties had not signed at the time of the attestation, nor had the witness any 
 recollection of such party being present at the attestation. Upon this testimony the case 
 was submitted to the jury, and they having found in favor of the deed, the court refused to 
 disturb the verdict. 
 
149 1 EVIDENCE. 
 
 from him.(a) But it cannot be proved by comparing it with other writ- 
 ing of the party.(&)[2] 
 
 (a) Arch. PI. & Ev. Civ. Act. 423, 424. (5) Id. 424. 
 
 [2] In cases proper for resorting to the handwriting of the, subscribing witness, the pre- 
 sumption in general is, that what has been attested did take place ; and hence, proof of his 
 handwriting will ordinarily make out the execution sufficiently to allow the instrument to 
 be read in evidence. Sigfried v. Levari, 6 Serg. & Rawle, 311 ; Miler's estate, 3 Eawle, 317, 
 318; Pelletrau v. Jackson, 11 Wend. 110; McPherson v. Eathbone, id. 96; Lush v. Druse, 4 
 id. 313 ; Ingram'v. Hall, 1 Hayw. Rep. 207 ; Somerville v. SuUivant, 1 Call's Rep. 560, 561 ; 
 Jackson, ex dem. Varick v. Waldron, 13 Wend. 178; Carroll v. Norwood, 1 Hanv& John. 
 174, 175 ; Ross v. Gould, 5 Greenl. Kep. 204 ; Whittemore v. Brooks, 2 id. 63, note ; Mott v. 
 Doughty, 1 John. Cas. 230 ; Sluby v. Champlin, 4 id. 461 ; Jones v. Brinkley, 1 Hayw. Rep. 
 20 ; Jones v. Blount, id. 238 ; Lautermilch v. Kneagy, 3 Serg. & Rawle, 202 ; Hamilton v. 
 Marsden, 6 Binn Rep. 45 ; Smith v. Chamberlain, 2 N. Hamp. Rep. 440 ; Parker's ex'rs v. 
 Fassit, 1 Harr. & John. 337 ; Jackson, ex dem. Bond v. Root, 18 John. Rep. 60, 66; Murdock 
 v. Hunter's rep's, 1 Brock. Rep. 135 ; Gilliam's adm'r v. Perkinson's adm'r, 4 Rand. 325 ; 
 Farnsworth v. Briggs, 6 N. Hamp. Rep. 561 ; Clark's lessee v. Courtney, 5 Peters's Rep. 319 ; 
 Den v. Van Houten, 5 Halst. Rep. 273 ; Patterson v. Fucker, 4 id. 322 ; Winn v. Patterson, 9 
 Peters' Rep. 674, 675, 676. How far the rule will need to be qualified, as it respects deeds, 
 where the instrument does not purport in the body of it, or in the attestation clause, to have 
 been sealed, and the only evidence of an intent to seal is an ink scroll opposite the party's 
 name, may be gathered from several cases, post, in these notes. 
 
 Before being allowed to prove the instrument by evidence of the witness' handwriting, 
 the non-production of all the witnesses, if there be more than one, must be duly accounted 
 for. Jackson, ex dem. Edson v. Gager, 5 Cowen's Rep. 383 ; Davison's lessee v. Bloomer, 1 Pall. 
 Rep. 123 ; Jackson, ex dem. Woodruff v. Cody, 9 Cowen's Rep. 140 ; Jackson, ex dem. Bond v. 
 Root, 18 John. Rep. 60; Hautz v. Rough, 2 Serg. & Rawle, 349; Whittemore v. Brooks, 1 
 Greenl. 57, 59 ; Shepherd v. Goss, 1 Tenn. Rep. 487 ; 1 Stark. Ev. 328, 6th Am. ed. ; Jack- 
 son, ex dem. Bowman v. Christman, 4 Wend. 277 ; Stump v. Hughes, 5 Hayw. Rep. 93 ; Jones 
 v. Gooprider, 1 Blackf. Rep. 47, 49, note (1) ; Booker v. Bowles, 2 id. 90. 
 
 Where all the witnesses to a deed or other instrument are dead, or absent, &c, there be- 
 ing several, proof of the handwriting of one of them will, prima facie, suffice to allow the in- 
 strument to be read. Jackson, ex dem. Woodruff v. Cody, 9 Cowen's- Rep. 140 ; Fitzbugh v. 
 Groghan, 2 J. J. Marsh. Rep. 434 ; Jaclcson, ex dem. Livingston v. Bouton, 11 John. Rep. 64 ; 
 Dudley v. Sumner, 5 Mass. Rep. 444 ; Jaclcson, ex dem. Bond v. Root, 18 John. Rep. 60 ; Mc- 
 Ferran v. Powers, 2 Serg. & Rawle, 44 ; Jackson, ex dem. Boyd v. Lewis, 13 John. Rep. 504 ; 
 1 Stark. Ev. 328, 6th Am. ed.; Jones v. Gooprider, 1 Blackf. 49, note (1); Kelly v. Dunlap, 3 
 Pennsylv. Rep. 136 ; see Mottv. Doughty, 1 John. Cas. 230 ; Hamilton^. McGuire, 2 Serg. & 
 Rawle, 478 ; Kingwoodv. Bethlehem, 1 Green's Rep. 226, 227 ; CouUton v. Walton, 9 Peters' 
 Rep. 62 ; Jackson, ex dem. Lansing v. Chamberlain, 8 Wend. 620. Otherwise, however, in 
 South Carolina, {Sims v. De Graffenreid, 4 McCord, 253, and see the cases infra, cited from, 
 the reports of that state;) in Kentucky, (sembk, Robards v. Wolfe, 1 Dana, 155, stated infra ;) 
 and Louisiana. See infra. 
 
 The authentication of an instrument in this way, whether by proof of the handwriting of 
 one or all of the attesting witnesses, though sufficient generally to allow it to go to the jury, 
 is by no means conclusive upon them, (Somerville v. SuUivant, 1 Call's Rep. 560;) for if there 
 are suspicious circumstances, casting doubt upon the transaction, they may not be satisfied 
 by the testimony; and hence it is strongly recommended that proof of the handwriting of 
 the party be superadded. See per Tilghman, C. J., in Clark v. Sanderson, 3 Binn. Rep. 192, 
 195, 196; also per Walworth, Chancellor, and Tracy, Senator, in Jackson, ex dem. Varick v. 
 Waldron, 13 Wend. 183, 184, 197, 198; Bellv. Bowgell, 1 Ashm. Rep. 7 ; Hamilton v. Mars- 
 den, Binn. 45; Lautermilch v. Kneagy, 2 Serg. & Rawle, 202; Hamilton v. McGuire, 2 id. 
 
DEEDS AND OTHER PRIVATE "WRITTEN INSTRUMENTS. 149 — 2 
 
 In larceny of bills of exchange or other valuable securities requiring 
 a stamp, or upon an indictment for obtaining them by false pretences, 
 
 487 ; Murdoch v. Hunter's rep's, 1 Brock. Rep. 135, 140, etseq. ; Spring v. The South Carolina 
 Ins. Co., 8 Wheat. 268 ; Farnsworth v." Briggs, 6 N. Hamp. Rep. 561 ; Vngks v. Graves, 2 
 Blackf. Rep. 191. In Maryland, it is said to be "usual" to add proof of the handwriting of 
 the party to that of the subscribing witnesses. Handy v. The State, 7 Harr. & John. 49. 
 Though, this seems not indispensable. Carroll r. Norwood, 1 id. 174. "Where the witness' 
 handwriting cannot be very satisfactorily proved, or where he is a marksman merely, it is 
 then, doubtless, necessary to prove the handwriting of the party, or other circumstances 
 equivalent. See Nelius v. BrickeWs adm'r, 1 Hay w. Rep. 1 9 ; Eagles v. Brunington, 4 Teates' 
 Rep. 346 ; Gilliam's adm'r v. PerMnson's adm'r, 4 Rand. 325 ; Gregory v. Baugh, id. 636, per 
 Green, J. 
 
 "Where there is fair ground for a dispute as to the identity of the party executing, proof 
 beyond that of the handwriting of the subscribing witnesses may become necessary. In a 
 recent case in Kentucky, an action was brought on an injunction-bond, to which the defend- 
 ant pleaded rum est factum; the bond was attested by the clerk, aDd it became a question, 
 whether the attestation of the clerk did not prove the bond : the court held it did not. But 
 even were it otherwise, they said, and the attestation was to be considered so far official as 
 to prove the signature to be genuine, that does not identify the defendant, and prove him 
 the person who executed. For, there may be two men of the same name. The defendant 
 ought not to be required to prove he was not the person who executed, &c. Robards v. 
 Wolfe, 1 Dana's Rep. 155. Quere, however. Most of the American cases, supra, when 
 they have either required or recommended proof beyond the handwriting of the witnesses, 
 have done so upon the ground that it would furnish additional assurance of execution ; and 
 not with a view to the identity of the party. Indeed, so far as merely identifying the party 
 was concerned, courts have usually assumed that identity of name was sufficient, in the first 
 instance, as presumptive evidence of identity of person. And so are the majority of the En- 
 glish cases, notwithstanding the opinion of Bayley, J., in Nelson v. Whittall, (1 Barn. & Aid. 
 21.) Mobards v. Wolfe, supra, is the only American case, it is believed, where this has been 
 denied. Nor does the reasoning in the case seem to us at all satisfactory. It is true, there 
 may be two persons of the same name ; and that the presumption arising from the identity 
 of name may be erroneous and illusory. And the same objection could be urged against 
 presumptive or circumstantial evidence in various other cases, where it is undeniably admis- 
 sible, and prima facie sufficient. "Where the fact is. shown that there is another person of 
 the same name with the party who is alleged to have executed the instrument, further evi- 
 dence might then be required. But until this appears, it is difficult to see why the presump- 
 tion adverted to should not stand ; at least so far as to allow the point to be passed upon by 
 the jury. See Atchinson v. McCullock, 5 "Watts' Rep. 13 ; Jaclcson, ex dem. Shultz v. Goes, 13 
 John. Rep. 518 ; Jackson, ex dem. Woodruff v. Cody, 9 Cowen's Rep. 140, 149, 150 ; Jackson, 
 ex dem. Bogertv. King, 5 id. 237. 
 
 In South Carolina, proof of the handwriting of the party must be added to that of the sub- 
 scribing witnesses, and, in general, proof of the handwriting of all the witnesses is requisite. 
 Hopkinsv. De Graffenreid, 2 Bay's Rep. 187 ; Oliphantv. Taggart, 1 id. 255 ; Pluriketv. Bow- 
 man, 2,McCord's Rep. 138 ; Duncan v. Beard, 2 Nott & McOord, 400 ; Young v. Stockdale, id. 
 531 ; Elwee v. Sutton, 2 Bail. Rep. 128 ; Corneal v. Bickley, 1 McOord, 166 ; Sims v. DeGraf- 
 fenreid, 4 McCord's Rep. 253 ; Townsend v. Covington, 3 id. 219; Edgar ads. Brown, 4 id. 91. 
 But where the maker of a promissory note was a marksman, held, that proof of the handwri- 
 ting of the subscribing witness was enough. Burnly ads. WMtaker, 2 Nott & McCord, 374. 
 
 In Louisiana, also, proof of the handwriting of the attesting witness is not sufficient ; the 
 maker's signature must be authenticated in some way, and this is not done, it is said, by 
 proving the handwriting of the witness or witnesses. Dismukes v. Musgrove, 7 Mart. Lou. 
 Rep. 58, N. S. ; Barfield v. Hewlett, 4 Mill. Lou. Rep. 118 ; Crouse v. Buffield, 12 Mart. Lou. 
 Rep. 539 ; Lynch v. Postlethwaite, 7 id. 69. But an exception is allowed where the party is a 
 marksman. Tagiasco v. Molinari's heirs, 9 Lou. Rep. (Curry) 112. 
 
149 3 EVIDENCE. 
 
 if it appear in evidence that the bill was not duly stamped, the ,defen- - 
 dant will be acquitted ; for in that case it is not a valuable security 
 within stat. 7 & 8 Gr. 4, c. 29, s. 5. Therefore where a man was indict- 
 ed for obtaining an order for the payment of 21 by false pretences, and 
 the order appeared to be an unstamped cheque upon a banker, which 
 from the manner in which it was drawn, required a stamp, the judges 
 held that it was not a valuable security within' the meaning of the 
 Act.(a) Perhaps a distinction in this respect might be made between 
 those instruments, which the commissioners of land revenue may order 
 to be stamped on the payment of a penalty, and those which they 
 have no authority to stamp after execution. But this point has not as 
 yet been decided. . In forgery, however, it is immaterial whether the 
 forged instrument be stamped or not, although the instrument, if gen- 
 uine, would require a stamp.(6) 
 
 SECTION III. 
 
 PAROL EVIDENCE. 
 
 In all cases where a fact need not be proved by a record or certifi- 
 cate, or by deed or other written evidence,(c) it may be proved by the 
 parol testimony of witnesses. I shall now consider the doctrine of pa- 
 rol testimony, shortly, under the following heads : 
 
 1. Who may be witnesses, p. 149. 
 
 2. Number of witnesses required, p. 155. 
 
 3. Witnesses, how compelled to attend, p. 156. 
 
 4. Witnessed expenses, p. 156. 
 
 1. Who may be witnesses. 
 
 (a) Quakers, &c. 
 
 Quakers may now be witnesses in criminal cases, and may make an 
 affirmation instead of an oath ;{d) and indeed they may now make 
 
 (a) R. v. Yates, Ry. & M. 170. (c) See Ante, p. 136. 
 
 (b) R. v. Eawlcswood, 2 T. B. 606. (d) 9 G. 4, o. 32. 
 
 It seems that, in all oases, where the handwriting of the subscribing witness is resorted to, 
 for the purpose of establishing an instrument, the opposite party may controvert the pre- 
 sumption arising therefrom, by showing statements made by them inconsistent with their 
 attestation. 
 
"WHO MAT BE "WITNESSES. 150 
 
 an affirmation instead *of an oath in all cases.(a) So may [*150] 
 Moravians.(i) So may that class of dissenters called Separat- 
 ists.^) [1] 
 
 The form of the affirmation of a Quaker or Moravian, is thus " I, A. 
 B. being one of the people called Quakers," [or " one of the persuasion 
 of the people called Quakers" or " one of the United Brethren called Mo- 
 ravians" as the case may be,] " do solemnly, sincerely and truly declare 
 and affirm, that," &c. 
 
 The affirmation of the Separatists is thus : " I, A. B. do, in the pre- 
 sence of Almighty God, solemnly; sincerely and truly affirm and de- 
 clare that I am a member of the religious sect called Separatists, and 
 that the taking of any oath is contrary to my religious belief, as well 
 as essentially opposed to the tenets of that sect ; and I do also, in the 
 same solemn manner, affirm and declare that," &c. 
 
 (b) Jews, Turks, &c. 
 
 Jews may be witnesses, and are sworn upon the Old Testament, or 
 rather upon the five books of Moses. 
 
 Turks and Mahomedans of all descriptions, may be witnesses, and 
 sworn upon the Koran. 
 
 So, Moors, Gentoos, Chinese, and in fact every person who believes 
 in a God, and in. a future state of rewards and punishments, and in the 
 moral obligation of the oath he is about to take, may be witnesses, (d) 
 
 (a) 3 & 4 W. 4, o. 49. (d) Bui. N. P. 292. Arch. PI. & Ev, Civ. 
 
 (6) 9 G. 4, u. 32. 3 & 4 W. 4, c. 49. Act, 440. 
 
 (c) 3 & 4 W. 4, c. 82. 
 
 [1] A witness who declines swearing on the New Testament, though he profess Chris- 
 tianity, may be allowed to swear on the Old Testament, if he considers that mode binding 
 on his conscience. Edmonds v. Bowe, Ry. & Mood. N. P. Rep. 11. In New York the 
 legislature have made the following provisions in regard to the ceremony, or form of adminis- 
 tering an oath ; 1. The usual mode of administering an oath shall be by the person who 
 swears, laying his hand upon and kissing the Gospels. 2 Rev. Stat. 407, § 82. 2. Every 
 person who shall desire it, may be permitted to swear in the following form : " You do swear 
 in the presence of. the ever living God;" and while so swearing, such person may, or may 
 not hold up his hand, at his discretion, id. § 83. 3. Every person who shall declare that 
 he has conscientious scruples against taking any oath, or swearing in any form, shall be 
 permitted to make his solemn declaration or affirmation, in the following form : " You do 
 solemnly, sincerely, and truly, declare and affirm." Id. § 84. 4. Whenever the court is 
 satisfied that the witness has any peculiar mode of swearing, connected with, or in addition 
 to, the laying of his hand upon the gospels, and kissing the same, which is more solemn and 
 obligatory in the opinion of the witness, the court may adopt such mode of swearing him. 
 Id. § 85. 5. Every person believing in any other than the christian religion, shall be sworn 
 according to the peculiar ceremonies of his religion, if there be any such ceremonies, instead 
 of the modes above prescribed. Id. 408, §86. ,The court may interrogate, the .witness aa 
 to the form. Id § 89. See Tail v. Nichersimj: 6 Mass. Rep. 262, and Utiited States v; 
 Coolidge, 2 Gall. Rep. 364. '•.:... 
 
 52 
 
^50 1 EVIDENCE. 
 
 each to be sworn in such form as he deems obligatory upon his con- 
 science. [2] 
 
 But a person who has no religious belief, which lie deems binding 
 on his conscience to speak the trutb, cannot be a witness.(a)[3] 
 
 (a) Bui. N. P. 292. 
 
 [2] All witnesses, indeed, must be sworn after a form, the obligation of which they 
 acknowledge; as a Jew on the Pentateuch or Old Testament, with his head covered; 
 (Gomez Serra v. Munoz, Stra. 821; see id. 1113, and Soberly v. Langston, supra,) a Mahome- 
 dan on the Koran : (R. v. Morgan, 1 Leach, 54,) a Gentoo, by touching with his hand the 
 foot of a Brahmin or priest of his religion ; a Brahmin by touching the hand of another such 
 priest; (Omicmdv. -Barter, Wil. 549,) a Chinese, by breaking a china saucer; [Eeg.Y.ErOreham, 
 1 C. & Mar. 248,) a Scotch covenanter, or member of the kirk, by holding up the hand with- 
 out kissing the book ; B. v. Mildrone, Leach, 412 ; E. v. Wallcer, 2 Sid. 6, cited Cowp. 390 ; 
 Mee v. Eeid, Peake, C. N. P. 23 ; 1 Leach, 498, Dr. Owen's case,) but if a witness himself 
 declares that he acknowledges the sanction of the oath in the usual form, there seems no 
 just ground for troubling him with further questions. It is certain, that in whatever form 
 he consents to be sworn, e. g. if though Christian he declines to be sworn on the New, but 
 consents to be sworn on the Old Testament; {Edmonds v. Howe, Ey. & M. C. N. P. 11,) he 
 may be afterwards asked whether he hold such oath binding on his conscience ; but not 
 whether he considers any other form of oath more binding, for he will be liable, if he gives 
 false testimony, to the penalties of perjury. 2 Br. &, B. 284; 3 Br. & B. 232. Wharton's 
 Cr. Law, 305. 
 
 It is for the jury to determine what weight is to be given to the testimony of one whose 
 immoral and degraded life shows a want of religious sentiment or a disregard to personal 
 character or reputation. Bowman v. Smith, 1 Strobhart, 246. 
 
 [3] The test of a witness' competency, at common law, on the ground of hia religious princi- 
 ples is, whether he believes in the existence of a God who will punish him if .he swears 
 falsely. 2 Cowen, 431. Within this rule are comprehended those who believe future pun- 
 ishment not to be eternal. Cowen & Hill's notes, 62. All persons who believe in the 
 existence of a God, and in future punishments by him, either in this world or in the next 
 are competent witnesses. 2 Cowen, 432, note a; Id. 572; 15 Mass. E 184. But tt is not 
 necessary that a witness should be a Christian or even believe in the Old Testament, m order 
 to render him competent. Thus Christians of all sects and denominations, Turks, Moors, 
 and other Mussulmen, Gentoos and the like, may be witnesses. Archer- PI. & Ev. 144. 
 But a man wholly without religion and having nobelief in the moral obligation of an oath, 
 shall not be received to give evidence in any case whatever. 1 Atk. 44. 
 
 The new constitution of this state, adopted in 1846, declares however, that no person shall 
 be rendered incompetent to be a witness on account of his opinions on matters of religious 
 belief. Const, art. I, sec. 3. An objection of that sort will therefore, in future, only affect 
 the credibility of the witness. 
 
 By the revised statutes every person believing in any other than the Christian religion 
 shall be sworn according to the peculiar ceremonies of his religion, if there be any such, 
 instead of the mode prescribed in ordinary cases. 2 E. S. 408, sec. 86. And the cour may 
 inquire of a witness what are the peculiar ceremonies observed by him m swearing. Id. ib. 
 
 sec. 89- . „ x, . 
 
 A witness cannot be compelled to declare his belief in the existence of a Supreme Being, 
 or that he will punish false swearing ; but this may be proved by other witnesses Id. ib. 
 sec 88 ; 18 John. 98 ; 2 Cowen, 431 ; 4 Day, 51. A person apparently of weak under- 
 standing, however, may be examined as to the extent of his religious knowledge 2 E. S. 
 408 sec 89. After the incompetency of the witness from defect of religious belief is satis- 
 factorily established, by proof of his declarations out of court, he will not be permitted to 
 deny or explain such declarations or his opinions, or to state his recantation of them when 
 
WHO MAT BE WITNESSES. 150—2 
 
 (c) Infants. 
 
 Infants of the age of fourteen may be witnesses ; and under that age, 
 if they appear to have competent discretion, (a) Where they are very 
 
 (a) 2 Hale, 273. 
 
 called to be sworn. But he may be restored to his competency on giving satisfactory proof 
 of a change of opinion before the trial, so as to repel any presumption arising from his pre- 
 vious declarations of infidelity. 18 John, R. 98 ; 4 Day, 51. 
 
 In Massachusetts, it has beea said that, mere disbelief in a future existence goes only to 
 the credibility. Hunscom v. Hunscom, 15 Mass. Rep. 184. In Maine, a belief in the existence 
 of the Supreme Being is rendered sufficient, without any reference to rewards and punish- 
 ments. Stat. 1833, ch. 58 ; Smith v. Coffin, 6 Shepl. 157. In Virginia a belief in God, and 
 his providence, has been held sufficient. Jones v. Harris, 1 Strobhart Rep. 160. In Dela- 
 ware, a person who disbelieves in a God, and a future state of existence, cannot be a wit- 
 ness. His belief may be proved by evidence of his declarations ; and his own assertions of 
 a change, made at the time he is offered as a witness, will not restore him to competency. 
 2 Harrington, 543. In Pennsylvania, in Cubbison v. McOreary, 2 Watts & Serg. Rep. 262, 
 it was held that the true test of the competency of a witness is his belief in the existence of 
 a Supreme Being, who will punish false swearing. And the rule embraces those who believe 
 future punishment not to be eternal. In Ohio, in U. S. v. Kennedy, 3 Mclean, 175, it was 
 held that a witness's belief that punishments for false swearing are inflicted in this life only, 
 might go to his credibility. In Connecticut, it was formerly held that those who believe in 
 a God, and in rewards and punishments in this world, are not competent witnesses. Atwood 
 v. Welton, 7 Conn. Rep. 66. But the Connecticut legislature has -since enacted that such 
 persons shall be received as witnesses. 
 
 In proving the religious views of a witness, the weight of opinion is that the witness 
 himself cannot be questioned or examined. Jackson v. Gridley, 18 Johns. Rep. 98 ; Wake- 
 field y. Boss, 5 Mason, 19 ; Gwrtis v. Strong, 4 Day, 51 ; Smith v. Coffin, 6 Shepl. 157. And 
 if the witness has changed his opinions, such change must be proved by third persons. In 
 Vermont, however, a contrary rule prevails. Scott v. Hooper, 14 Verm. Rep. 535. 
 
 A witness cannot be compelled to declare his belief, (2 Revised Statutes of N. T. 408, 
 § 88,) but this may be proved by other witnesses. Id. Jackson ex dem. TutUe v. Gridley, 
 18 Johns. Rep. 98 ; Butts v. Swartwood, 2 Cowen's Rep. 431 ; Curtis v. Strong, 4 Day, 51 ; 
 Beardsly v. Foot, 2 Root's Rep. 399 ; Bow v. Parsons, 1 id. 480 ; State v. Cooper, 2 Tenn. 
 Rep. 96. Slight or unguarded expressions will not, however, be sufficient to exclude a wit- 
 ness. State v. Cooper, 2 Tenn. Rep. 96. After the incompetency of the witness from defect 
 of religious belief, is satisfactorily established by proof of his declarations out of court, he will 
 not be permitted to deny or explain such declarations or his opinions, or to state his recan- 
 tation of them, when called to be sworn. But he may be restored to his competency, on 
 giving satisfactory proof of a change of opinion before the trial, so as to repel any presump- 
 tion arising from his previous declarations of infidelity. Jackson ex dem. Tuttle v. Gridley, 18 
 John. Rep. 98 ; Curtis v. Strong, 4 Day, 51. In Wakefield v. Ross, the defendant made out 
 a case of defective religious belief against two witnesses, when the plaintiff's counsel sug- 
 gested that they might be personally examined ; but Story, J. said the defendant's counsel 
 were not bound to rely on the testimony of these persons for proof of incompetency. Wake- 
 field v. Ross, 5 Mason, 19, note. The above doctrines are, in substance, adopted by the 
 revised statutes of New York. 2 R. S. 408, § 88. But a person apparently of weak under- 
 standing, may be examined as to the extent of his religious knowledge. Id. § 89. See 
 Swift's Ev. 49, 50, and Christian's note to 3 Bl. Com. 369. 
 
 We have noticed, ante, the character of religious belief essential to a witness, and the 
 mode of proof. The courts in New Hampshire cited and adopted the principle of the New 
 York cases, cited in Norton v. Ladd, (4 New Hamp. Rep. 444.) It was in proof by third 
 
150 — 3 EYIDENCE. 
 
 young, it is usual for the judge to question them as to their belief in 
 God, their belief as to the punishment hereafter for swearing falsely, 
 and the like, before he allows them to be sworn.(a)[4] 
 
 (a) See R. v. Williams, 7 Car. & P. 320. 
 
 persona, that the witness had several times, and shortly before the trial, deliberately disa- 
 vowed his belief in the existence of a God. He was rejected as incompetent. It was doubted 
 in Ohio, whether a defect in religious belief should go to the competency or merely the 
 credibility of the witness. The objection was raised, and it was shown by third "persons, 
 that the witness's creed, so far as collectable from his conversations, was as follows : he said 
 he did not believe in the existence of a God ; but added that he saw God in trees, bushes, 
 herbage, and every thing he saw ; that a man would be punished for falsehood by his con- 
 science, and in this life only ; that a man is bound to speak true at all times, and an oath 
 imposes no additional obligation. The court held, that it was unnecessary to inquire whe- 
 ther, in Ohio, the same rule should prevail as in England; for, if it should, the witness was 
 competent. Wright, J. said, the court thought his declaration equivalent to an avowal of 
 belief in the existence of a God. " He sees him in all created nature." Easterday v. Kilborn, 
 1 "Wright, 345, 6. A person who does not believe in future rewards and punishments, but 
 that our evil deeds will all be punished in this world, and that we shall exist immortal in a 
 future state, exempted from punishment for deeds done in the body; is a competent witness. 
 Farnandis v. Henderson, in chancery 'before Ch. Desaussure', Aug. 1827; South Car. Law. 
 Journal, 202. 
 
 It seems that an infidel who believes in a God, and that he will reward and punish him 
 in this world, but does not believe in a future state, may be examined upon oath. PhiL Ev. 
 12, note 6 to 8th ed^ citing "By Wille's,.C. J., Omichund v. Barker, Willes, 550." For the 
 general doctrine, see Phebe v. Prince, Walker's Rep. 131. 
 
 The religious faith of a witness is not a subject for argument, or proof, for the purpose of 
 showing that he is entitled to more or less credit on account of his religious faith. 16 Pick. 
 Rep. 153. 
 
 [4] There is no particular age at which a witness must have arrived to render him competent 
 to testify; if he appear, on examination by the court, to have a sufficient sense of the wick- 
 edness of false sweariDg, he may be sworn, although of never so tender an age, and the jury 
 are to judge of his credit. Commonwealth v. Hutchinson, 10 Mass. Rep. 225. The King v. 
 Rose Kelly, Macnally, 154. Swift's Ev. 46. In order to test the capacity of infants to 
 give evidence, and their understanding of the nature and obligation of an oath, the court 
 may examine them as to their religious knowledge or belief. Jackson, ex dem. Tuttle, v. 
 Gridley, 18 John. Rep. 98. 2 Rev. Stat/ of N. Y. 408, § 89. If the witness be fourteen 
 years of age, he is not interrogated respecting-his capacity, but is presumed to have suffi- 
 cient knowledge and discretion to be sworn, unless some circumstances creating suspicion 
 be shown. Ben v. Van Gleve, 2 South. Rep. 589. State v. Doherty, 2 Tenn. Rep. 80. But 
 if he is under that age, it is a subject of discretion in the court to admit him or not. Van 
 Pelt v. Van Pelt, 2 Penning. Rep. 657. The testimony of an infant seven years'old, corrob- 
 orated by circumstances, has been held sufficient to justify a conviction for a capital offence. 
 State v. Le Blanc, 1 Const. Rep. 354. But a child only four years old cannot have that idea 
 of a future state which would make it a competent witness. Rex v. Pike, 3 Carr. & Payne, 
 598. The credit of a witness, which is greatly impaired by his age, is to be judged of by 
 the jury from his manner -of testifying, and other circumstances. Commonwealth v. Hutchin- 
 son, 10 Mass. Rep. 225. State v. Doherty,, 2 Tonn. Rep. 80. 
 
 In one case, where a child nine years old, though very intelligent, did not understand the 
 nature of an oath nor the moral penalty of false swearing, the court instructed her on the 
 spot, and then allowed her to be sworn. Jenner's case, before Radcliff, mayor, 2 C. H. Roc. 
 147, 8, 9. 
 
 A child eight years old being called, it appeared that, to within sixteen weeks of the trial, 
 
"WHO MAT BE WITNESSES. 150—4 
 
 # 
 (d) Deaf and dumb persons. 
 
 Deaf and dumb persons may be witnesses, (a) if any person can be 
 found who can interpret their signs to the court and jury upon oath, (6) 
 or if they can write and read writing, so that the qustions and answers 
 may be conveyed in writing. [5] 
 
 (a) 2 Hawk. c. 46, s. 163. 1 Leach, 408. 
 
 (b) R. v. Pollock, MS. 1814. R. v. Ruston, 
 
 she had never heard of a God,, or a future state of rewards and punishments; that she 
 never prayed nor knew the nature of an oath ; but since, a clergyman had twice visited and 
 instructed her in the nature of an oath. Patteson, J., rejected her, saying he must be sat- 
 isfied that she felt the binding obligation of an oath from the general course of her religious 
 education ; that the effect of an oath upon the conscience of the child should arise from re- 
 ligious feelings of a permanent nature, and not merely from instructions confined to the na- 
 ture of an oath recently communicated for the purpose of the trial. Rex v. Williams, 1 Carr. 
 & Payne, 320. 
 
 Where, on an indictment for rape, the injured person is of sufficient age, though weak un- 
 derstanding, hut is unable to talk, and can communicate and receive ideas only by signs, she 
 may yet be sworn as a witness and examined, through the medium of a perso.n who can 
 understand her, who is to be sworn to interpret between her and the court and jury. The 
 People v. irGee, l'Denio, 19. 
 
 The testimony of an infant of seven years, corroborated by circumstances, held sufficient 
 to justify a conviction of a capital offence. The credibility of such witness is left properly 
 to the jury. State v. Le Blanc, 3 Brevard, 339. 
 
 A child of any age capable of distinguishing between good and evil, may be examined 
 on oath; and the credit due to his statements, is to be submitted to the consideration of the 
 jury, who should regard the age, the understanding, and the sense of accountability for 
 moral conduct in coming to their conclusion. State v. Whittier, 21 Maine, 341. 
 
 Before a child is examined the judge must be satisfied that the child feels the binding 
 obligation of an oath from the general course of its religious education. The effect of the 
 oath upon the conscience of the child should arise from religious feelings of a permanent na- 
 ture, and not merely from instructions, confined to the nature of an oath, recently commu- 
 nicated to it for the purposes of a trial. 
 
 There is no difference in respect of the competency of children between capital cases and 
 misdemeanors. Where the child has appeared not sufficiently to understand the nature and 
 obligation of an oath, judges have often thought it necessary for the purposes of justice to 
 put off the trial of a prisoner, directing that the child, in the meantime should be properly 
 instructed. 
 
 £5] Thus where a man deaf and dumb from birth, was produced as a witness on a trial ' 
 for larceny, he was allowed to be examined through the medium of his sister, who was 
 sworn to interpret to the witness, "the questions and demands made by the court to the 
 witness, and the answers made to them." The sister stated, that for a series of years she 
 and her brother had been enabled to understand one another by means of certain arbitrary 
 signs and motions, which time and necessity had invented between them. She was certain 
 that her brother had a perfect knowledge of the tenets of Christianity, and that she could 
 communicate to him notions of the moral and religious nature of an oath, and of the tem- 
 poral dangers of perjury. Rustsn's case, 1 Leach, 408. So in Scotland, upon a trial for rape, 
 the woman, who was deaf and dumb, but had been instructed by' teachers, by means of 
 signs, with regard to the nature of an oath, of a trial, and of the obligation of speaking the 
 truth, was admittedto be examined. Martin's case, 1823, Allison's Prac. Crim. Law of ScotL 
 486. 
 
150 5 EVIDENCE. 
 
 (e) Lunatics. 
 
 Lunatics may be witnesses in their lucid intervals ;(a) idiots or in- 
 sane persons cannot.(6) And when a lunatic is tendered as a 
 [*151] witness, *it is for the judge to examine and ascertain whe- 
 ther he is of competent understanding to give evidence, and 
 is aware of the nature and obligation of an oath ; if satisfied that he is, 
 the judge should allow him to be sworn and examined. (c)[l] 
 
 (/) Judge or Juror. 
 
 A judge may be a witness. And it is said that he may be so, even 
 although he is the judge to try the cause 1 ;(d) but this at present 
 never occurs in practice. A juror, however, may be a witness, either 
 for or against the prisoner, and must be sworn as such ;(e) but it is right 
 that he should inform the court of his having evidence to give in the 
 
 (a) Com. Dig. Testm. A. 1. (<2) 2 Hawk. c. 46, s. 83. 
 
 (6) Co. Lit., 6 b. (e) Id. 
 
 (c) R. v. Bill, 20 Law J. 222 m. 
 
 [1] Persons not possessing the use of their understanding, as idiots, madmen, and lunatics, 
 if they are either continually in that condition, or subject to such a frequent recurrence of 
 it, as to render it unsafe to trust to their testimony, are incompetent witnesses. Livingston v. 
 Kiersted, 10 Johns. 362. 
 
 An idiot is a person who has been non compos mentis from his birth, and who has never 
 any lucid intervals, Co. Litt. 247 ; Baa Ab v Idiot (A. 1,) and cannot be received as a wit- 
 ness. Com. Dig. Testm. (A. 1.) 
 
 A lunatic is a person who enjoys intervals of sound mind, and may be admitted as a wit- 
 ness, in lucidis intervaUis. Com. Dig. Testm. (A. 1.) He must of course have been in pos- 
 session of his intellect at the time of the event, to which he testifies, as well as at the time 
 of his examination ; and it has been justly observed, that it ought to appear that no serious 
 fit of insanity has intervened, so as to cloud his recollection, and cause him to mistake tho 
 illusions of imagination for the events he has witnessed. Allison's Prac. C. La. of Scotl. 
 436. With regard to those persons who are afflicted with monomania, or an aberration of 
 mind on one particular subject (not touching the matter. in question,) -and whose judgment 
 in other respects is correct, the safest rule appears to be to exclude their testimony, it being 
 impossible to calculate with accuracy the extent and influence of such a state of mind. 
 
 Livingston v. Kiersted, 10 John. Rep. 362. And if such persons are offered as witnesses, 
 evidence is admissible to show their incompetency. Id. Persons totally deprived of mem- 
 ory or understanding, or who arc suffering under a temporary privation of them when pro- 
 duced to be sworn, ought not to be admitted. Thus a person in a state of intoxication 
 ought not to be permitted to testify; and the court before which the witness is produced, 
 may decide from its own view, whether the witness is in such a sitaation that he ought to 
 be received to testify. Hartford v. Palmer, 16 John. Rep. 143. 
 
 A witness is not incompetent merely because he has been judicially declared an habitual 
 drunkard, and his estate committed to trustees. Gebluwd v. Shindle, 1 5 Serg. & Rawle, 
 235. It is enough if lie be competent at the time of examination. Id. 238. Though, if he 
 be, at the time, insane, an idiot, or a lunatic, ho is not competent. Mis, J. in Phebe v. 
 Prince, Walk. Rep. 131. 
 
"WHO MAY BE WITNESSES. 151 
 
 case, before lie is sworn as a juror, and indeed to decline acting as a 
 juror in the case, if the court will permit him. [2] 
 
 (g) Prosecutor. 
 
 The prosecutor in criminal cases may be, and generally is, a witness, 
 either for the prosecution or for the defendant ; even in cases of for- 
 gery, the person whose name is forged may now be a witness to sustain 
 the prosecution.(a) 
 
 There were some cases formerly, in which the prosecutor was not 
 allowed to be a witness, on account of the interest he had in the result 
 of the prosecution ; — in a prosecution for forcible entry on stat. 8 H. 
 6, c. 9, s. 3, or 21 Jac. 1, c. 15, he was not allowed to be a witness for 
 he was entitled to restitution if the defendant should be convicted ;(b) 
 or in cases where the punishment was by fine only, and the prosecutor 
 was to have the whole or a part of it, he could not be a witness ;(c) — 
 but now, interest in the event_ of the prosecution, no longer renders a 
 witness incompetent, by stat. 6 & 7 Vict. c. 85, s. 1, which I am now 
 about to notice more fully. [3] 
 
 (a) 9 G. 4, o. 32, s. 2. (c) See if. v. Blackmore, 1 Esp. 95. R. v. 
 
 (5) R. v. Williams, 9 B. & 0. 549. Cole, Id. 21?. 
 
 [2] A juror may give evidence of any fact material to be communicated in the cause of a 
 trial. In a criminal prosecution, the jury may use that general knowledge which any man 
 may bring to the subject matter of the indictment, without being sworn. Bat if any one of 
 the jurors has a particular knowledge on the subject ; as for instance, as to the value of a 
 watch in a case where it is essential to prove what it is worth ; he ought to be sworn and 
 examined as a witness. Rosser's case, 7 0. & P. 648. M'Kain v. Love, 2 Hill S. C. Rep.' 
 506. 
 
 A juror is incompetent to prove the misconduct of his fellow jurors, in order to impeach 
 the verdict. State v. Freeman, 5 Conn. Rep. 348. So, a grand juror, to prove that a witness, 
 who has been- examined before the petit jury, swore differently before the grand jury. Imlay 
 v. Sogers, 2 Halsted. 347. But a juror may be admitted to prove improper attempts, by a 
 party, to influence the minds of the jury. Denn,-ex dem. Chews, v. Driver, Coxe, 166 ; and 
 in New York, by statute, a grand juror is bound to testify as to any consistency or incon- 
 sistency- between what a witness swore before a grand and petit jury ; and to disclose testi- 
 mony given before the grand jury, on a complaint against, or trial of a witness for perjury ; 
 but is. expressly restrained as to the manner in which he or any of his fellows voted, or what 
 were their expressed opinions. 2 R. S. part 4, ch. 2, tit. 4, s. 31, p. 724. 
 
 [3] The old English doctrine has been adopted by some of the American courts ; State v. 
 Brunson, 1 Root, 307. Same v. Blodget, id. 535. Swift's Ed. 70 ; but see Day's note (1,) 2 
 N. R. 96. State v. A. W., 1 Tyl. 260. The State r. Hamilton, 2 Hayw. 288 ; doubted by 
 others, (Coe's case, 1 C. H. Reo. 141 ;) but a majority have gone the other way. Fubber v. 
 HUMard, 2 N. H. Rep. 481. Pennsylvania v. Farrel, Addis, 246. Commonwealth v. Snett, 
 
 3 Mass. Rep. 82. Same v. Waite, 5 id. 261. State v. Foster, 3 M'Cord, 442. Respublicar. 
 Keatmg, 1 Dall. 110. Same v. Ross, 2 id. 239. Same v. Wright, 1 Yeates, 401. Same r. 
 Ross, 2 id. 1. An apparent- first endorser was received to prove his name a forgery. Ter- 
 
 . ritory v. Barron, 1 Mart. Lou. Rep. 208. So the alleged drawer of a check, (People v. Howell, 
 
 4 John. Rep. 296,) and the maker of a note. People v. Bean, 6 Cowen's Rep. 27. And see 
 
J.51 1 EVIDENCE. 
 
 (h) Persons interested in the event. 
 
 By stat. 6 & 7 Vict. c. 85, s. 1, no person, offered as a witness, snail 
 be excluded, by reason of incapacity from interest, from giving evidence 
 either in person or by deposition according to the practice of the court 
 on the trial of any issue joined, or of any matter or question or on 
 any inquiry arising in any suit, action or proceeding, civil or criminal, 
 in any court, or before any judge, jury, sheriff, coroner, magistrate, offi- 
 cer, or person having by law or by the consent of the parties, authority 
 to hear receive and examine evidence ; but that every person so offered 
 may and shall be admitted to give evidence on oath, or solemn affirma- 
 tion in those cases wherein affirmation is by law receivable, notwith- 
 standing that such persons may or shall have interest in the matter in 
 
 V. States v. Johns, 4 Dall. 412. But the instrument must be produced to the party, before 
 he shall be allowed to swear as to its genuineness, ( Commonwealth v. Hutchinson, 1 Mass. 
 Rep. 1, Same v. Sneli, 3 id. 82,) unless it has been secreted to protect the offender. Com- 
 monwealth v. SneU, supra. 
 
 That persons entitled to a reward on conviction, are competent witnesses for the prose- 
 cution, (see M'Nally's Ev. 61, 63, and the cases there cited. United States v. Wilson, 1 Bald- 
 win's Rep. 90, S. P.) An attorney who, by arrangement with the trustees of a corporation, 
 ■was to have 10 per cent, on all fines collected in their behalf, was held incompetent as a 
 witness for the commonwealth, in a prosecution for a fine belonging to the corporation. 
 Commonwealth v. Moore, 5 J. J. Marsh. 655, 6. 
 
 The party injured is a competent witness for the state, in a criminal prosecution. The 
 cases are generally uniform to this effect, on the ground which prevails in civil causes, that 
 the record cannot be used as evidence either for or. against the witness. State v. Basset, 1 
 Tayl. 55. Commonwealth v. Oliver, 3 Bibb, 474. But they are conflicting as to his com- 
 petency in those cases where he may, by special provision, derive actual benefit from a con- 
 viction. 
 
 The rule that he is competent, was applied to a suit qui tarn for usury. Banner v. Gregg, 
 1 Harringt. 513 ;) and to a prosecution for playing with false dice. The King v. Chapman, 
 stated by M'Kean, C. J., in Eespublica v. Keating. 1 Dall. 111. The general rule was held 
 not to be altered even by a statute making the prosecutor liable for costs. Commonwealth 
 v. Shriver, Whart. Dig. 331, pi. 134, 2d ed. Quere. Vid. Commonwealth v. Gore, 3 Dana> 415. 
 "Where a statute made him liable only in the event of the prosecution appearing to.be frivolous 
 or malicious, he was received as but contingently liable. The State v. Blennerhassett, "Walker's 
 Rep. 1, and 15, 16. The prosecutor in forcible entry under the statute, is not competent for 
 the state, for he is entitled to restitution. State v. Fellows, 2 Hayw. 340. The rule, that 
 the injured party is competent, &c, was applied to the person who owned, and from whom 
 . a bank bill was stolen, though a conviction would entitle him to a restitution of the property. 
 State v. Cassados, 1 Nott & M'Cord, 91, 99. But this was denied of the party swindled, 
 against the alleged swindler ; for a statute gave the fornier double value, on conviction. State 
 v. Vaughan, 1 Bay, 282, 3. So of an informer, who is entitled to a share of the penalty. City 
 Council v. Haywood, 2 Nott & M'Cord, 308. Van Enour v. The State, id. 309, note (a). But 
 see State v. Bennett, 1 Root. 249. 
 
 On trial of an indictment for perjury committed by A. on trial of an action against B. and 
 others, B. is not rendered incompetent as a witness for the prosecution, merely on the ground 
 that he has not paid the debt and costs, and has filed a bill in equity. But semUe, that if B. 
 expect A. will be a witness against him in a similar action, coming on for trial soon after the 
 indictment, that is such an immediate interest in B. as will disqualify him from being a wit- 
 ness. Bex v. Hulme, 1 Car. & Payne, 8. 
 
WHO MAT BE WITNESSES. 151 — 2 
 
 question, or in the event of the trial of any issue, matter, question, or 
 inquiry, or of the suit, action, or proceeding, in which he is 
 offered as a witness. This *Act contained some exceptions, [*152] 
 namely, — parties to the suit, action, or, proceeding, named in 
 the record, — lessor of plaintiff in ejectment, — tenant of the premises 
 sought to be recovered in ejectment, — the landlord or other person in 
 whose right a defendant in repelvin makes cognizance, — persons in 
 whose immediate and individual behalf any action is brought or defend- 
 ed, either wholly or in part, — and the husband or wife of any such 
 person; — all which exceptions, however, have recently been repealed 
 by stat. 14 & 15 Vict. c. 99, s. l.[l] 
 
 " By stat. 14 & 15 Vict. c. 99, s. 2, also, parties to suits, actions, or 
 other proceedings in courts of justice, are made competent witnesses, 
 and compellable to give evidence for or against each other. But, by 
 sect. 3, nothing herein contained shall render any person, who in any 
 criminal proceeding is charged with the commission of any indictable 
 offence, or any offence punishable on summary conviction, competent 
 or compellable to give evidence for or against himself or herself, — -or 
 shall render any person compellable to answer any question tending to 
 criminate himself or herself, — or shall in any criminal proceeding ren- 
 der any husband competent or compellable to give evidence for or 
 against his wife, or any wife competent or compellable to give evidence 
 for or against her husband. (a) [2] 
 
 (i) Inhabitants. 
 
 The rated inhabitants of parishes were in many instances holden to 
 be incompetent as witnesses for their parish, in any proceedings by or 
 against it, on the ground of interest. But by stat. 54 Gr. 3, c. 170, s. 9, 
 they were rendered competent in all matters relating to rates, orders 
 of removal, settlements, and bastards ; and by stat. 1 Ann, stat. 1, c. 
 18, s. 13, the inhabitants of a county, riding, or division, were rendered 
 competent, in prosecutions for the non-repair of bridges, and the roads 
 at the ends 'of them ; and by stat. 27 Gr. 3, c. 29, s. 1, the inhabitants 
 of a parish, township, or place were rendered competent witnesses to 
 prove any offence to have been committed within their parish, &c, 
 where the penalty was applicable to the poor of such parish, or other- 
 wise in aid or exoneration of such parish, &c. But the stat. 6 & 7 Vict, 
 c. 85, already mentioned,(J) has the effect of rendering inhabitants com- 
 petent witnesses in all cases for their parish, &c, although by stat. 14 
 
 (a) Vide infra. (6) Supra. 
 
 [1] See N. T. Code of 1851, sees. 398, 399. 
 [2] See N. Y. Code of 1851, sec. 390. 
 
 53 
 
152 EVIDENCE. 
 
 & 15 Vict. c. 99, s. 3,(a) or at least by the equity of that statute, not 
 competent or compellable to give evidence against it, where the inhabi- 
 tants generally are indicted. [3] 
 
 (j) Husband and wife. 
 
 A wife cannot be examined as a witness for or against her husband, 
 or a husband as a witness for or against his wife,(S) except in 
 
 [*153] *the case of a personal injury committed by one upon the 
 other, in which case (from necessity) the one may be a witness 
 
 against the other.(c)[l] 
 
 (a) Supra. R. v. Sills et at, 1 Car. & K. 494. 
 
 (5) Gilb. Ev. 133, 134. Eao. Abr. Evi- (c) R. v. Azyre, 1 Str. 633. 2 Hawk. c. 46, 
 dence, A. 1. 2 Hawk. o. 46, s. TO, 11. See s. 11. Lord Audley's case, 1 St. Tr. 388. 
 
 [3] In New York, it is held that the interest arising from being a rateable inhabitant, is 
 too remote to prevent his being a witness for the town, as in actions on bastardy bonds. 
 Falls v. Belknap, 1 John. Rep. 486 ; or for penalties in qui tarn actions. Gorwein v. Harms, 11 
 John. Rep. 16; Bloodgood v. Overseers of Jamaica, 12 John. Rep. 285. The City Council v. 
 King, 4 M'Cord 481. It seems that we stand, by common law,, very nearly on the footing 
 of England, upon the statute 54 Geo. 3 c. 110, sec. 9, cited in the text. 
 
 [1] It is now settled that a kept mistress, who has passed as the party's wife, is competent 
 for him ; though it may be otherwise if he habitually allow her to pass as his wife. Several 
 of the judges recognized the opinion of Lord Konyon, 0. J. cited in the text, as sound law ; 
 though Best, C. J. thought the wife should be so dejwe, in order to be -excluded. Bathews 
 v. Galindo, 4 Bing. 610 ; 3 Oarr. & Payne, 238, S. 0. at N. P. 1 Moor. & Payne, 565, S. 0. 
 And see Randall's case, 5 0. H. Rec. 141, before Colden, mayor, and Jay, recorder. In a 
 case where the woman was sued, a witness who lived with her as her husband was received 
 as competent in ber behalf. Meunier v. Couet, 2 Mart. Lou. Rep. 56. 
 
 Where the husband is a party, the wife cannot be a witness either for or against-him. 
 Fitch v. Hill, 11 Mass. Rep. 286 ; Commonwealth v. Schrimer, Quarter Sessions, Philad.1820, 
 MS. ; City Bank v. Bangs, 3 Paige, 36. 
 
 She shall not be examined against her husband, on his trial for murder, even by consent 
 of the parties. Randall's case, before Van Ness, J., 5 Oit. H. Recorder, 141, 153, 154. Nor 
 can she be examined for the plaintiff, though the defendant married her after the plaintiff had 
 subpoenaed her in the cause. Pedky v. Welksly, 3 Carr. & Payne, 558. 
 
 In one case the court refused to hear the husband as a witness, against one indicted for 
 larceny jointly with his wife, though she was not taken', and the district attorney entered a 
 nolle prosequi as to her ; for perhaps her husband might "disclose enough to, require that a 
 bench warrant should issue against her. The People v. Coliern, 1 Wheel. Or. Oas. 419. 
 
 See Fitch v. Bill, 11 Mass. Rep. 280. Oh the traverse of an indictment for subornation 
 of perjury, where two witnesses on the part of the prosecution swore that the testimony 
 given by them on a former trial was false, their wives' testimony .was held not admissible to 
 impeach that of their husbands, either directly or oollaterally. New York Gen. Sessions, 
 before Radcliff, mayor. Francis and Jones' cases, 1 Cit. H. Reo. 121. Quere, Indeed, it 
 would seem now to be the settled doctrine, both on authority and principle, that husband 
 and wife may be received to contradict or criminate each other in a collateral matter, i. e. 
 in all cases except where one is called to contradict or criminate the other as a party to 
 some cause. 
 
 On similar principles, upon the trial of an indictment for fornication and bastardy with a 
 married woman, she was held competent to prove the criminal' connection. Commonwealth 
 
WHO MAT BE WITNESSES. 153 
 
 And this exception is not effected by the general expression in the 
 3d section of stat. 14 & 15 Yict. c. 99, above mentioned, namely, that 
 nothing in that section shall render a husband competent or compella- 
 ble to give evidence against his wife, or a wife against her husband, — 
 as that section merely has relation to the other provisions of the same 
 Act. 
 
 But in no other eases of relationship are the parties incompetent to 
 give evidence for or against each other : a father may be a witness for 
 or against his son, a soil for or against his father, a brother for or 
 against his brother, (a) 
 
 (7c) Attorney. 
 
 An attorney cannot disclose any confidential communication made 
 to him, as attorney, by his client, (Z>) whether made with reference to 
 any suit then depending or in contemplation, or not.(c) And this is 
 the privilege, not of the attorney, but of the client, and the court will 
 not permit him to make the disclosure.(c£) The same rule applies to 
 
 (a) 2 Hale, 276. 84-86. 
 
 (6) Gilo. Ev. 13G. Arch. PI. & Ev. Civ. (c) Doe v. Harris, 5 Car. & P. 592. 
 Act. 474. 1 Arch. Pr. 75. Hawk. o. 46, ss. \d) 4 T. R. 753. 
 
 v. Wentz, 1 Ashm. Rep. 269, and the cases cited infra from Browne and Binney. But not 
 to prove the non-access of her hushand. Commonwealth v. Miller, cited 1 Browne, App. lii. ; 
 Commonwealth v. Sticker, 1 Browne, App. xlvii. ; Commonwealth v. Connelly, 1 Browne, 
 284; Commonwealth v. Shepherd, 6 Sin. 283. The King v. M'Lean, cited 6 Bin. 290. But 
 if the court permit her to be asked a question from the answer to which non-access may be 
 inferred, as "how long it was since she last saw her husband," and afterwards direct the 
 jury that they are not to consider anything which fell from her as evidence of non-access, 
 and there is strong evidence of non-access from other witnesses, the verdict will not be dis- 
 turbed. Commonwealth v. Shepherd, 6 Binn. 283. 
 
 During the trial of five defendants, on an indictment for an assault and battery, the coun- 
 sel for the defendants moved that the wife of one of them might be examined as a witness 
 for the other four ; but the court ruled unanimously that she could not be examined. To 
 have had the benefit of her testimony, they should have moved to be tried separately from 
 the husband, which the court would have granted, had this heen assigned as a, reason for 
 the motion. Commonwealth v. Easland et al, 1 Mass. R. 15. But quere of this; for where 
 they served, it was holden that one was not competent for the other. The People v. Bill, 10 
 John. Rep. 95. It follows that the wife would not be competent. Eor where Colbern and 
 Elizabeth, the latter being the wife of Weir, were jointly indicted, and Colbern alone was 
 taken and put upon his trial, the husband was held incompetent for the people, because the 
 wife was so within the case of The People v. Bill. The People v. Colbern, 1 Wheel. Cr. Cas. 
 479. On this decision being made, the district attorney entered a nolle prosequi in her favor, 
 and offered her husband again ; but the court still rejected him as incompetent, because his 
 testimony might still affect his wife, the nolle prosequi not being final. He might disclose 
 enough to require that the court should issue a bench warrant against her. To warrant the 
 testimony of the husband, she must first have been tried and acquitted by tho jury. Id. 481. 
 But see State v. Anthony, (1 M'Cord, 285,) that the wife may be a witness for one indicted 
 jointly with her husband for murder, but tried separately from him. 
 
153 1 EVIDENCE. 
 
 barristers ; but not to medical men, or other persons.(a) An attorney 
 also cannot be compelled to produce the deeds or documents of his 
 client ;(b) but he may be subpoenaed to produce them, and if he refuse 
 to do so, secondary evidence may be given of their contents.(c) If, 
 however, he be the attesting witness to a deed of his client, his privilege 
 does not exempt him from proving its execution. (c£)[2] 
 
 (o) Per Buller, J., 4 T. R. 160. 2 Hawk. J. 214, ex. R. v. Hankins, 2 Car. & K. 823. 
 c. 46, s. 92. (c) Coates et al. y. Birch, 2 Q. B. ,252. 
 
 (b) See Bate v. Kinsey, 1 Or. M. & R. 38. (d) Doe d. Avery v. Roe, 6 Dowl. 518. 2 
 
 Daviesr. Waters, 1 Dowl. N. C. 651, 11 law Hawk. c. 46, sa. 87, 89. 
 
 [2] The head or confidential clerk in a mercantile establishment is not privileged from 
 being examined as a witness in respect to the affairs of his principal. Corps v. Robinson, 2 
 "Wash. C. C. Rep. 388. ' ITor an attorney's clerk in respect to the private and personal affairs 
 of the latter, though his articles bind him to keep his master's secrets. Webb v. Smith, 1 
 Car. & Payne, 331. So a confidential agent or factor must give evidence of matters confi- 
 dentially communicated to him: (Holmes v. Comeggs 1 Dallas, 439;) and a banker of one of 
 the parties is bound to disclose what such party's balance was on a given day. Lloyd v. 
 Heshfield, 2 Carr. & Payne, 325. 
 
 The privilege does not extend to the clerk or student of the attorney or counsel, and he is 
 bound to testify to facts of which he acquired a knowledge while in the office of the attorney, 
 though such as the attorney himself could not disclose. Andrews v. Solomon, 1 Pet. C. C. 
 Rep. 356. But in Power v. Kent, (1 Cowen's Rep. 172,) it was decided that the clerk repre- 
 sents the attorney, during his absence, as to all the ordinary proceedings of the office, and 
 has power to bind the attorney by waiving the usual formalities of practice, as entering a 
 rule to amend. It would seem to follow that the clerk should be under the same restrictions 
 in regard to the business of the attorney as the attorney himself; and in Jackson, ex dem. 
 Saverly v. French, (3 Wend. 337,) the opinion was intimated by the caurt that the rule was 
 applicable to the clerk as well as to the attorney. In a late English case, it Was ruled at nisi 
 prius, by Best, J. that the privilege of not disclosing confidential communications extends to 
 the clerk of the attorney employed in a cause, on the ground that attornies are under the 
 necessity of employing clerks, before whom such communications must be made. Taylor v. 
 Forster, 2 Carr. & Payne, 195 ; and see Foote v. Hayne, infra. And in a still later case, it 
 •was held that the clerk of an attorney, who had been employed by a mortgagee to make an 
 abstract of the mortgage deeds, was not a competent witness to prove the contents of the 
 deeds, (the mortgagee having refused to produce them.) Mr. Justice Bayley saying that the 
 clerk stood precisely in the same situation as his master. The King v. The Inh. of Upper 
 Boddington, 8 Dowl. & Ry. 726. Otherwise if the deeds form no part of the client's title. 
 Doe, dem. Oourtail v. Thomas, 9 Barn. & Cress. 288. 
 
 The privilege does not extend to other professional men. Dixonv. Parmelee, 2 Term. Rep. 
 185. A physician is bound to testify to facts which were communicated in confidence to 
 him in his professional capacity. ' Sherman v. Sherman, 1 Root. 486. So confessions made 
 to a protestant divine will be received in evidence. Smith's case, 2 N. Y. C. H. Rec. 77. 
 Oilman's case, Carr. Suppl. 61, also cited in Broad v. Pitt, 3 Carr. & Payne, 518, S. P. So 
 penitential confessions, made in confidence to members of the same church of which the pri- 
 soner is a member, are not privileged. Commonwealth y. Drake, 15 Mass. Rep. 161. But it 
 was held by Clinton, mayor, in the N. T. court of general sessions, that confessions made to 
 a Roman Catholic clergyman in confidence, and whose duty it is to receive auricular con- 
 fessions according to the canons of that church, will not be received in evidence. Smith's 
 case, cited supra, and note to that case, 2 K T. 0. H. Rec. 80. Butler v. Moore, Macnally, 
 253, contra. 
 Whether where a clerk or servant is bound by articles to keep his master's secrets and is 
 
WHO MAT BE WITNESSES. 153—2 
 
 (T) One of two defendants. 
 
 If one of two defendants plead guilty, and the other be tried, the de- 
 fendant who pleaded guilty, before sentence is passed upon him, may 
 be a witness for his companion,(a) or against him.(J) And now, by 
 stat. 6 & 7 Vict. c. $5, s. 1, he may be a witness, although judgment 
 have been pronounced upon him.(c) Also, upon an indictment against 
 two or more, the prosecutor may apply to have one of the defendants 
 acquitted, in order to make him a witness for the prosecution ; and 
 the other defendants cannot object to it ;(d) or, if on the trial 
 there be *no evidence against him, he may be acquitted, and [*154] 
 give evidence for the others. (e)[l] 
 
 (a) R. v. George et al, Car. & M. 111. (d) R v. Rowland et al, Ry. & M., N. P. C. 
 
 (6) R. v. Minks et al, 2 Car. & K. 462. 1 401. 
 Den. C. C. 84. (e) 2 Hawk. o. 46, s. 98. 
 
 (c) Vide infra. 
 
 called on to disclose a communication prejudicial to his master, or a matter expressly confi- 
 ded to him as a secret, he will be holden to testify? Quere. The inclination of Littledale, 
 J. seemed to be that he would not, in Webb v. Smith, 1 Carr. & Payne, 337. In Foot v. 
 Mayne, id. 545. Scarlett complained that his clerk was compelled to attend on a supbcena 
 duces tecum to produce, his retainer book, in order to fix the time of his retainer ; and Abbott, 
 C. J. seems to have expressed himself very decidedly that the counsel's clerk should not be 
 received to prove such a communication between the counsel and his client. And vid. 
 Eicke v. Nolces, 1 Mood. & Malic. 303. 
 
 And now, by statute in New York, no. minister of the gospel, or priest of any denomina- 
 tion, is allowed to disclose any communication made to Kim, in his professional character, in 
 the course of discipline enjoined by the rules or practice of his denomination. 2 R. S. 406, 
 § 72. And no practitioner of physic or surgery, duly iicensed shall be allowed to disclose- 
 any information which he may have acquired in attending any patient in a professional cha- 
 racter, if the information was necessary to enable him to prescribe for his patient as a phy- 
 sician, or do any act as a surgeon. Id. § 73. 
 
 A physician consulted by the defendant in an action on the case for seduction, as to the 
 means of producing an abortion is not privileged" from testifying, by the New York statute 
 forbidding a disclosure of information received by a physician to enable him to prescribe for 
 a patient. Mewitt v. Prime, 21 "Wend. R. 79. 
 
 Communications made to a confidential friend in confidence are not privileged ; and such 
 friend is bound to disclose them when called upon as a witness, although made under an in- 
 junction and promise of secrecy. Mills v. Griswold, 1 Root. 383 ; Calkins v. Lee, 2 Root. 
 363. This was'once made a grave question. Bulstrod v. Letchmere, 2 Freem. 5. So a per- 
 in no way connected with the attorney, who is present at a communication made to the at- 
 torney by the client, is bound to testify to such communication. Jackson, ex dem. Haverly 
 v. French, 3 Wend. Rep. 337 ; Gainsford v. Grammar, 2 Campb. 10, S. P. 
 
 But the same reasons which apply to an attorney apply equally to an interpreter between 
 the client and attorney, of whom he is merely the organ. Andrews v. Solomon-, 1 Pet. 0. C. 
 Rep. 356; Parker v. Carter, 4 Munf. 273 ; Jackson ex dem. Haverly v. French, 2 Wend. Rep. 
 337. 
 
 In New Hampshire, the privilege is not confined to communications with professional 
 men, but extends to any person employed to manage a cause as counsel. Bean v. Quimby, 
 6 N. H. Rep. 94. The court put this on the construction of a local statute, authorizing a 
 man to manage his cause by agent, whether he be licensed or not. Id. 97. 
 
 [1] Where several persons are jointly indicted, one is not a competent witness for another, 
 
154 EVIDENCE, 
 
 (m) Accomplice. 
 
 An accomplice may give evidence against those jointly guilty with 
 him.(a) But although in point of law they may be found guilty on 
 
 (a) 2 Hawk. c. 46, ss. 94, 95. Vide supra. 
 
 without being first acquitted, or convicted; and it makes no difference whether the defend- 
 ants plead jointly or separately. The People v. Bill, 10 John. Hep. 95; Campbell v. Com., 2 
 Yirg. Cas. 314; et vide The State v. Alexander, 2 Rep. Const. Ct. So. Ca. 171. Thus, where 
 two being jointly indicted for an assault and battery, pleaded, and were tried separately ; 
 and after the testimony for the people against one had closed, he offered to prove his defence 
 by the other, it was held, that the witness offered was incompetent before the trial and ac- 
 quittal, or conviction. People v. Bill, 10 John. Eep. 95. So where two were jointly indicted 
 for larceny, and being separately arraigned, pleaded and were tried separately, it was held 
 that a party in the same indictment cannot bo a witness for his co-defendant, until he has 
 been first acquitted, or, in some cases, convicted, whether the defendants be jointly or sepa- 
 rately tried. Campbell v. Com., 2 Virg. Cas. 314. 
 
 If any evidence is given against one of two jointly tried, the court will not strike his name 
 out of the indictment for the purpose of making him a witness for the other; and where 
 there is no evidence against one of several defendants, it seems that the motion to strike out 
 his name can only be legally granted by consent of the attorney for the state, and by con- 
 sidering it equivalent to a motion on his part for leave to enter a nolle prosequi as to such 
 defendant. State v. Alexander, 2 Eep. Const. Ct. So. Ca. 111. Accordingly, on trial of an 
 indictment for larceny, the attorney-general not consenting, though no evidence appeared 
 against one of the prisoners, the court refused to swear him as a witness for the others. 
 State v. Carr, Coxe, 1. But of this, quere; for the attorney-general may thus wrongfully 
 withhold evidence from the defendants; and in another case, persons joined in a complaint, 
 against whom there was no evidence, were, on motion in behalf of the other defendants, ad- 
 mitted for them. State v. Shaw, 1 Root, 134. But if circumstances are proved from which 
 it is possible for the jury to presume guilt, a co-defendant in an indictment cannot be a wit- 
 ness for tho defence. Pennsylvania v. Leaeh, Addis. 352. For the general doctrine, see also 
 Bex v. Long, 6 Carr. & Payne, 179. 
 
 "Where one is indicted jointly with his accomplices, it is in the discretion of the state's at- 
 torney to try the prisoners separately, and use the accomplice or not, on trial, as a witness ; 
 but the prisoners have no such right of election for such a purpose, because the accomplice 
 jointly indicted is not competent for them though they sever. State v. Calvin, R. M. Charl. 
 151 169. And it wassaid generally, that the state may use the accomplice as a witness, 
 but the prisoners not. Id. 169. Quere of this, independent of their being joined as parties. 
 He is competent for either party, if not indicted. And quere, whether the accomplice, so 
 long as he remains on the record as a joint indictee, can be received as a witness for either 
 party, though his associate be tried separately. Bex v. Bowland, Ry. & Mood. N. P. Rep. 401, 
 and note. 
 
 It seems to have been assumed, in one case, that though an accomplice and his associates 
 be jointly indicted, yet, irthe latter be separately tried, the accomplice may be a witness for 
 the state, though not for the prisoners; and it was held, that the state's attorney, but not 
 the prisoners, may elect to try separately with a view to use the accomplice as a witness. 
 State v. Calvin, R. M. Charlt. 151. But before the state's attorney can in such case use the 
 accomplice as a witness, ought not the attorney to move, and have him acquitted, or at least 
 enter a nolle prosequi against him ? See Bex v. Bowland, Ry. & Mood. N. P. Rep. 401, and the 
 
 note. 
 
 Does not the case come within the general rule, that so long as the witness' name stand 
 on the record, he being thus designated as a joint party and subject to be tried as such, he, 
 is incompetent? In respect to tho prisoners right to have one jointly indicted with him 
 
WHO MAT BE WITNESSES. 154 — 1 
 
 his testimony alone,(a) yet in practice it is not usual to convict, on the 
 testimony of an accomplice, or of the wife of an accomplice, (6) unless 
 his or her story be confirmed in some material part, by the testimony 
 of other credible witnesses.(c) And this confirmatory testimony must 
 not merely relate to the manner in which the offence was committed, 
 for that proves only that the accomplice was present at the commission 
 of it ;(d) but it must be as to some facts or circumstances, which tend to 
 connect the accused with the offence, or to connect the accused and 
 the accomplice together.(e) And where A. was indicted as principal, 
 and B. as receiver, and A. pleaded guilty, and an accomplice was call- 
 ed to give evidence against B., it was holden that evidence confirming 
 some part of the accomplice's story as to A., was no confirmation of 
 his evidence as it affected B.(gr) But where two are on their trial as 
 principals, and an accomplice is admitted to give evidence against 
 them, and his evidence is confirmed as to one of them, but not as to 
 the other, this will warrant the jury in finding both defendants 
 guilty.(A) If, however, two or more accomplices be examined, the evi- 
 dence of one is not deemed confirmed by that of the other, but the evi- 
 dence of both requires to be confirmed by other testimony.^') How- 
 ever, since the passing of stat. 6 & 7 Vict. c. 85, which shall be pre- 
 
 (a) 2 Hawk. o. 46, s. 96. R. v. Jones, 2 Well, 6 Id. 595. R. v. Farler, 8 Id. 106. R. 
 
 Camp. 131, 132. R. v. Bastings, 7 Car. & v. Dyke, 8 Id. 261. 
 
 P. 152. (e) R. v. Addis, 6 Car. & P. 388. 
 
 (6) R. v. Neal et al, 7 Car. & P. 168. (g) R. v. Moores et al, 7 Car. & P. 270. 
 
 (c) See R. v. Bernard et al, 1 Car. & P. 88. (A) R. v. Dawler et al, 3 Stark. 34. 
 2 Hawk. e. 46, a. 96. (i) R. v. Noalces, 5 Car. & P. 326. 
 
 (d) R. v. Wilkes, 7 Car. k P. 272. R. v. 
 
 sworn as a witness in his behalf; he must in all cases, whether he he tried jointly or sepa- 
 rately from the witness, who has not even been arraigned, wait for a conviction or acquit- 
 tal of the witness. The People v. Williams, 19 Wend. 317 ; Statev. Blennerhassetts, Walker's 
 Rep. 7, 16, 17. If there be no, evidence against him, the court may direct an acquittal, or 
 order the defendant to be discharged. 2 R. S. 616, § 19, 2d ed. ; State v. Blennerhassetts, 
 Walker's Rep. 7, 16, 17. But until that be so, the rule of exclusion applies, even where 
 the trials are ordered for different counties. State v. Mills, 2 Dev. 420 ; Garter's case, cited 
 id. 422. And it makes no difference that the defendants havo pleaded separately. State v. 
 Mooney, 1 Terg. 431. 
 
 It is put in the text that, unless acquitted, he should not only be convicted, but fined, be- 
 fore he is competent. The Amerieen cases usually put the case of a conviction merely as 
 restoring competency, without its being followed by the sentence of the court. But Ruffin, 
 J., in State v. Mills, (2 Dev. 422,) says the practice in North Carolina has accorded with the 
 English strictness. 
 
 In Amos and Phillipps' ed. of Phil. Ev. p. 70, note (3), the case of Rex v. Lafone, (5 Esp. 
 160.) is examined, and several arguments urged in favor of receiving one joint indictee aa a 
 witness for another, after he has suffered judgment by default. The learned editors urge, 
 what it seems difficult to deny or explain away, that there exists no objection beyond what 
 goes to his credit, any more than in the case of an accomplice. The same reasoning would 
 seem to apply where the witness pleads guilty, especially in all those courts which do not 
 exclude witnesses solely on the ground of their being parties. 
 
154 2 EVIDENCE. 
 
 sently mentioned, where the unconfirmed testimony of an accomplice is 
 the only evidence against a prisoner, the judge will not withdraw the 
 case on that account from the consideration of the jury ; he will leave 
 it to them, however, with a recommendation not to act upon it.(«) It 
 may sometimes also be a question whether the witness was in fact an 
 accomplice, of the defendant, so as to require confirmation; it has been 
 holden, for instance, that a person employed by government, to mix 
 with conspirators, and detect their designs, is not an accomplice, and 
 does not require to have his testimony confirmed.(&)[2] 
 
 (a) R. v. Skilkr, 9 Shaw's J. P. 314. see R. v. Bowling, Id. 6T8. 
 
 (5) R. v. Mullens, 12 Shaw's J. P. TT-6, and 
 
 [2] The doctrine of the text in regard to the admissibility of accomplices, has been re- 
 cognized in several, and, it is presumed, in most of the "United States, in its fullest extent. 
 Tfie People v. Whipple, 9 Cowen's Rep. TOT. Byrd v. The Commonwealth, 2 Vir. Cas. 490. 
 Bean v. Bean, 12 Mass. Rep. 20. Churchill v. Sutter, 4 Mass. Rep. 156. M'Niff's case, 1 C. 
 H. Rec. 8. The State v. Wier. 1 Dev. 363. United States v. Benry, 4 Wash. G. C. Rep. 428. 
 The evidence of accomplices has been at all times admitted, although from a principle of 
 public policy, or from judicial necessity, or from both. They are no doubt requisite as wit- 
 nesses in particular cases, but it has been well observed, that in a regular system of admin- 
 istrative justice, they are liable to great objections. " The law," says one of the most use- 
 ful modern writers on criminal jurisprudence, " confesses its weakness, by calling in the aid 
 of those by whom it has been broken. It offers a premium to treachery,, and destroys the 
 last virtue which clings to the degraded transgressor. On the other hand, it tends to pre- 
 vent any extensive agreement among atrocious criminals, makes them perpetually suspicions 
 of each other, and prevents the hopelessness of mercy from rendering them desperate." 
 People v. Whipple, 9 Cowen's Rep. TOT. As in a criminal case a particeps criminis is ad- 
 mitted as a witness, so in a civil case, a particeps fravMs may be, either to prove or disprove 
 the fraud. Churchill v. Suter, 4 Mass. Rep. 156. Bean v. Bean, 12 id. 20. Major v. Deer, 
 4 X J. Marsh. 586, T. Glenn v. Von Kapff, 2 Gill & John. 132. 
 
 But it has been held in Vermont, that on the trial of an indictment for adultery, a parti- 
 ceps criminis is not a competent witness, on the ground that no person shall be allowed to 
 testify t his own guilt or turpitude, to convict another. State v. Annice, N. Chip. Rep. 9. 
 Offenders against the act to prevent duelling are cpmpetent (in New York) to testify against 
 any other person offending in the same transaction ; indeed are compellable to testify' the 
 same as any other witnesses. 2 R. S. 686, § 3. The thief is competent to prove an indict- 
 ment for buying stolen goods of him. M'Niff's case, 1 C. H. Rec. 8. Bill's case, id. 5T, 59. 
 In the latter case it is asserted that conviction may follow, though the testimony of the ac- 
 complice stand uncorroborated. Per Radcliff, mayor, in his charge, id. 50. An accomplice, 
 separately indicted, is competent as a witness for or against another indicted for the same 
 offence. To constitute an accomplice, the person charged as such must have an intention 
 of committing the crime. Mere apparent concurrence is not enough. United States v. 
 Benry, 4 Wash. C. C. Rep. 428. 
 
 Accomplices are admitted to give evidence under an implied promise of pardon, on condi- 
 tion of their making a full and fair confession of the whole truth; that is, of all the offences 
 about which they might be questioned, and of all their associates in guilt. This implied 
 promise arises from the consideration, that the witness, who is not bound to criminate him 
 self, does so to discover greater offenders ; and upon performance of the condition to the 
 satisfaction of the court, he acquires an equitable title to a pardon. People v. Whipple, 9 
 Cowen's Rep. TOT. 
 
 An accomplice admitted to testify of one crime, may, though he behave well, be prose- 
 cuted for another crime, the implied promise of pardon not extending to that; and if it ap- 
 
WHO MAT BE "WITNESSES. 155 
 
 *(n) Persons convicted. [*155] 
 
 By stat. 6 & 7 Vict. c. 85, s. 1, no person offered as a witness shall 
 be excluded, by reason of incapacity from crime, from giving evidence 
 either in person or by deposition, according to the practice of the court 
 on the trial of any issue joined, or of any matter or question or on any 
 inquiry arising in any suit, action, or proceeding, civil or criminal, in 
 any court, or before any judge, jury, sheriff, coroner, magistrate, officer, 
 or person having by law, or by the consent of parties, authority to hear, 
 receive, and examine evidence ; but that every person so offered, may 
 and shall be admitted to give evidence on oath, or solemn affirmation 
 in those cases where an affirmation is receivable, notwithstanding that 
 such person may have been previously convicted of any crime or of- 
 fence. This Act contained a proviso, that it should not extend to ren- 
 der competent any party to any suit, action, or proceeding individually 
 named in the record ; but that proviso is repealed by stat. li & 15 Vict. 
 c. 99, s. 1 ; so that now a party convicted, may be a witness against 
 those with whom he is jointly indicted, (a) as well as in other cases ; his 
 conviction merely affects his credit. [1] 
 
 (a) See R v. Sinks, ante, p. 153. 
 
 pear that he is charged with any other felony than that in relation to' which the prosecutor 
 moves for his admission as a witness, this fact of itself will be sufficient ground for rejecting 
 him. People v. Whipple, 9 Cowen's Eep. 721, note (a,) also resolved in several cases, 2 Carr. 
 & Payne, 411. 
 
 [l].It is the nature of the crime, and not the punishment, which determines whether a 
 convict is an admissible witness. A conviction of treason, felony, or any of the crimen falsi, 
 renders the witness incompetent. People v. Whipple, 9 Cowen, 707. Clark's Lessee, v. Hall, 
 2 Har. k M'Hen. 278. People v. Merrick, 13 John. 82. Cushman v. Loker, 2 Mass. 108. 
 All persons convicted, and adjudged guilty of perjury, or subornation of perjury, are, by 
 statute in New- York, absolutely disqualified from giving testimony, in any matter or cause 
 whatever, until the judgment be reversed. 2 Rev. Stat. 681, § 1, 4. And no person, sen- 
 tenced upon a conviction for felony, shall be competent to testify in any cause, matter or 
 proceeding, civil or criminal ; unless he be pardoned by the governor, or the legislature, ex- 
 cept in special cases which are provided by law, but no sentence on a conviction for any of- 
 fence, other than felony, shall disqualify a witness. Id. 701, § 23. A felony by the same 
 statute, is defined to be an offence for which the offender shall be liable to be punished by 
 death, or by imprisonment in the state prison. Id. 702, § 30. Offenders against the act to 
 prevent duelling, are declared to be competent to testify against any other person offending 
 in the same transaction, and are compellable to testify in the same manner as other persons. 
 Id. 686, § 3. Convicts imprisoned in the state prison are competent to testify against any 
 other convict, for any offence committed whilst the accused and witness are both confined 
 in prison. Id. 774, § 8. It is no objection to the competency of a witness, that he has 
 been convicted of an assault and battery, with intent to commit murder, and has been sen- 
 tenced to fine and imprisonment. United States v. Broclcins, 3 Wash. 0. C. Eep. 99. Other- 
 wise in New-Tork j for there it is a felony. 2 R. S. 666, § 39, in connection with id. 702, § 
 30, cited supra. A person convicted of forgery, or other infamous crime, in one state, wa3 
 held incompetent in another, within the provisions of the constitution of the United States, 
 and the act of congress declaring the effect of the records of one state in every other. State 
 
 54 
 
155 — 1 EVIDENCE. 
 
 (o) Examination on the voire dire. 
 
 In order to ascertain whether a witness is competent or not, the coun- 
 sel for the opposite party is entitled to examine him upon the subject, 
 before he is examined in chief. This is termed an examination on the 
 voire dire (veritaiem dicere.) 
 
 But if the incompetency appear at any period during the trial, the 
 judge will give the party the benefit of it, by striking out the evidence 
 of the witness. 
 
 It is a general rule, that where the incompetency of a witness is im- 
 peached upon the voire dire, it may be restored upon his cross-examina- 
 tion by the party calling him, without producing or proving any 
 written document for that purpose ; but if the competency be impeached 
 by other evidence, that evidence must be met and answered by docu- 
 mentary or other evidence, as in other cases, (a) 
 
 (a) Per Lord Kenyon, C. J., Bothom v. 1 Arch. N. P. 33, 34 
 Swingler, 1 Esp. 164, and see Id. 162. See 
 
 v. Candler, 3 Hawks, 393. State v. Bidgety, 2 Har. & M'Hen. 120. Clarice's Lessee v. Hall, 
 id. 318. Cole's Lessee v. Cole, 1 Har. & John. 318. But it should appear that the foreign 
 offence would disqualify at common law, or by some statute of the country. Clarice's Lessee 
 v. Hall, 2 Har. & M'Hen. 378. The above cases from the Maryland Reports, Har. k M'Hen. 
 and Har. & John., hold the same as to any foreign conviction. A different doctrine prevails 
 in Massachusetts, even as to a neighboring state. Commonwealth v. Qreen, 17 Mass. Rep. 
 514. At common law, a conviction of petit larceny disqualified ; but whether this was so 
 under the peculiar enactments of Ohio in 1832, quere. Jumes v. Bostwick, 1 Wright. 142, 3. 
 The conviction for an infamous crime, cannot be proved by the witness, on his voire dire ; 
 he not being bound to answer, nor would his answer be the best evidence of which the case 
 is susceptible. People v. Herrick, 13 John. Eep. 82. Nor is parol testimony of "the convic- 
 tion admissible in any case, but the party objecting must have a copy of the record of con- 
 viction, ready to produce in court. Id. Hilts v. Colvin, 14 John. Rep. 182. And it is not 
 only necessary to show the conviction, but also the judgment, in order to disqualify the 
 witness. People v. Whipple, 9 Oowen's Rep. VOL Castallano v. Peillon, 2 Mart. Lou. Rep. 
 N. S. 466. Cushman v. Ldker, 2 Mass. Rep. 108. Skinner v. Perot, 1 Ashm. Rep. 57. But 
 where a witness admitted on his cross-examination that he had been convicted of a felony, 
 the court charged the jury that if he had not been corroborated, they should reject his evi- 
 dence entirely. Orr's case, before Colden, Mayor, 5 0. H. Rec. 181. It was also held, in 
 Maryland, to be incumbent on the party objecting, to show that the witness did not serve 
 tho full term for which he was sentenced, such full service .being adjudged to restore his 
 competency. Cole's Lessee v. Cote, 1 Har. & John. 572. State v.-Ridgely, 2 Har. & M'Hen. 
 120. It should be noted that these decisions have reference to the English statutes cited in 
 the text. The court, in The State v. Ridgely, cited supra, and in Clarke's Leasee v. Hall, (2 
 Har. & M'Hen. 378,) also determined, that parol evidence was admissible to prove the con- 
 viction and sentence, as well as all other circumstances necessary to render the witness in- 
 competent. But a witness, though convicted and attainted, is not incompetent to make an 
 affidavit to resist a motion. Davis v. Carter, 2 Salk. 461, or to found a motion, Skimer v. 
 Perot, 1 Ashm. Rep. 57. So, it seems, his oath is admissible on a charge of assault and bat- 
 tery, and for surety of the peace, &c, or to hold to bail: or he would he utterly out of the 
 protection of the law. Skinner v. Perot, 1 Ashm. Rep. 57. 
 
NUMBER OF "WITNESSES REQUIRED. 155—2 
 
 2. Number of witnesses required. 
 
 la treason and misprison of treason, the offence must be proved by 
 two witaessess, either both to the same overt act, or one witness, to one 
 overt act and another to another overt act of the same treason ;(a) ex- 
 cept where an attempt to injure the person of the Queen is laid as an 
 overt act, in which case one witness is sufficient, for by stat. 5 & 6 Vict. 
 c. 51, s. 1, the trial in such a case must be in the same manner as in 
 murder. [2] 
 
 In perjury, there must be two witnesses to the same assign- 
 ment.^) But the taking of the oath, and the facts deposed [*156] 
 to, may be proved by one witness.(c)[l] 
 
 In all other cases, there is no certain number of witnesses requir- 
 ed.^] 
 
 (a) 7 & 8 W. 3, o. 3, ss. 2, 3. (c) 2 Hawk. c. 46, 3. 10. 
 
 (6) 2 Hawk. o. 46,_s. 10. (d) 2 Hawk. c. 46, s. 3. Id. c. 25, 8. 129. 
 
 [2] "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." Const. U. S. art 3, § 3. The statute 
 is to the same effect. 2 Laws U. S. 92. " No person shall be convicted upon any indict- 
 ment for treason, but by the testimony of two lawful witnesses to the same overt act, or one 
 ■witness to one overt act, and another witness to a different overt act, of the same treason. 
 But if two or more distinct treasons, of divers kinds, be alleged in any indictment, one wit- 
 ness to prove one treason, and another witness to prove a different; treason, shall not be 
 deemed two witnesses to the same treason, within the provisions of this section." § 15, 2 
 R. S. N. T. 735, § 16. "In trials for treason, no evidence shall be given of an overt act 
 that is not expressly laid in the indictment ; and no conviction shall be had upon any indict- 
 ment for the said offence, unless one or more overt acts be expressly alleged therein." 
 
 [1] 1 Nott & McOord Rep. 649 ; 1 City Hall. Rec. 21. 
 
 [2] Where there is no difficulty in saying that a witness is unimpeached, the facts sworn 
 to by him being uncontradicted, either directly or indirectly, by any other witness, and there 
 is no intrinsic improbability in his relation, » jury cannot disregard his testimony on the 
 ground, arbitrarily assumed, that they are satisfied, from his manner, he is biased in favor of 
 the party calling him. Newton v. Pope, 1 Cowen's Rep. 109. Were this otherwise, all cer- 
 tainty in the result, from oral testimony, must be~ given up. One credible witness is suffi- 
 cient even to convict of-a crime ; and a useless repetition of witnesses is discountenanced by 
 the law. The judge might, by the civil law, in his discretion, stop the multiplication p,f wit- 
 nesses to the same matter. Wood's Civ. Law. 317, cites D. 22, 5. 1. 2, ;' 2 Dom. B. 3, tit. 6. 
 sec. 3, art. 14. And this is not an unusual exercise of discretion in our own courts. See 
 Beekman v. Bemus, 1 Cowen's Rep. 29. The judge is constantly in the habit of directing a 
 verdict of the 'jury, which is taken and entered by the clerk as a matter of course ; unless 
 the jury object. Saville v. Lord Farnam, 2 Mann. & Ryl. 216 ; and see Nichols v. Goldsmith, 
 7 Wend. 160. And whore a cause iB thus stopped, and the party in consequence forbears 
 to go on with his evidence, and the jury find against the judge's direction, a new trial will 
 be granted, even though the direction was contrary to the weight of evidence. Dunham v. 
 Baxter, 4 Mass. Rep. 79. Though this was once held otherwise, where the counsel stopped 
 on the mere intimation of the judge. Beelcman v. Bemus, supra. Quere. Again; Per Gase- 
 lee, J. :• " I was requested to nonsuit the plaintiff. I could not do so upon the plaintiff's 
 case, though in similar causes I have occasionally done so after hearing the defendant's case • 
 but when there is any doubt as to the facts, they must be found by the jury/' DwU v. 
 
156 EVIDENCE. 
 
 3. Witnesses how compelled to attend. 
 
 We have seen, (a) that the witnesses for the prosecution, who attend 
 before the magistate at the time the prisoner is committed, are bound 
 over by recognizance to prosecute, or to prosecute and give evidence, 
 or to give evidence, as the case may be ; and for non-attendance, their 
 recognizance may be estreated. [3] 
 
 All other witnesses, on the one side and the other, may be compelled, 
 if necessary, to attend, by subpoena issued from the crown. office, or is- 
 sued by the clerk of assize or clerk of the peace: if it issue from the 
 crown office, the court of Queen's Bench may punish the party by at- 
 tachment, for non-attendance. If the witness be in custody on civil 
 process, he can only be brought up by writ of habeas corpus. See as to 
 the mode of suing out this latter writ, (a) [4] 
 
 (a) Ante, p. 47. (6) Arch. Pr. Cr. Off. 348. 
 
 BusseU, 5 Brag, 354. And per Marcy, J.: where the -evidence in favor of the plaintiff is so 
 slight, and that which supports the defence is so strong, that had the jury found for the 
 plaintiff the court would have felt itself called on to set aside their verdict, it will not send 
 the cause back to the jury, because the judge ordered a nonsuit Demyer v. Souzor, 6 Wend. 
 436, 438 ; Ward v. Van Bvzer, 2 Hall's Rep. N. V. S. C. 162, S. P. 
 
 On the other hand, if the fact depend entirely on the testimony of an uncorroborated wit- 
 ness, whose credibility is plainly impeached, the jury are equally bound to disregard his tes- 
 timony. Where the plaintiff's sole uncorroborated witness (or, in this case, it seems even 
 if he be slightly corroborated) has plainly been guilty of perjury (apparent now on his cross- 
 examination) upon the present or a former trial of the same matter, his testimony must be 
 wholly rejected. Dunlap v. Patterson, 5 Cowen's Rep. 243, 246. So, if bisjestimony be 
 corruptly false in any particular, the whole must be rejected. State v. Jim, 1 Dev. 508. 
 
 [3] See 2 Rev. Stat, of N. T., 709, §21, 22, 23, 24. 
 
 By these sections witnesses are to be bound by the examining magistrate, in recognizance, 
 to the next court having cognizance of the offence. He may require security, on proof that 
 the witness will probably disregard his recognizance. Infants and married women are of 
 course to give security if required ; . and all the witnesses may be compelled to give the 
 recognizance ordered, by imprisonment till they comply. This statute omits to give a similar 
 power of requiring security, to any of the courts ; nor have they any such power at the com- 
 mon law, nor by implication from any other statute. Bickley v. Commonwealth, 2 J. J. Marsh. 
 572-4. The magistrate must certify these recognizances to the court at which the witnesses 
 are to appear. 2 R. S. 709, § 26. He may be ruled to make return ; and on default, 
 punished as for a contempt, id. § 27. These recognizances must be written and subscribed 
 by the cognizors. 2 R. S. 746, § 24. Though when recognizances are taken in open court, 
 by a court of record, it is enough that they are entered in the minutes, and the substance 
 read to the witness. Id. 
 
 [4] The form of this writ, for the circuit in New York, is thus; " The people of the state 
 of New York, to the sheriff ofthe county of Saratoga, greeting: We command you, that you 
 have the body of E. P. detained in your prison under your custody, as it is said, under safe 
 and secure conduct, before, &c. (as in the subpoena,) on the thirtieth day of November 
 next, by ten ofthe clock in the forenoon ofthe same day, then and there to testify the truth, 
 according to his knowledge in a certain cause now depending in our supreme court of 
 judicature, before our justices thereof, and then and there to be tried between John Doe 
 plaintiff, and Richard Roo, defendant, of a plea of trespass on the case, on the part of the 
 
•WITNESSES' EXPENSES. 156—1 
 
 4. Witnesses' expenses. 
 
 In a criminal case, a witness cannot refuse to give his testimony, 
 until his expenses have been paid to him, even although subpoenaed 
 
 plaintiff. And immediately after the said E. F. shall then and there have given his testi- 
 mony, before (as in the subpoena) that you return him the said E. E. to our said prison under 
 safe and secure conduct. And have you then there this writ. Witness, John Savage, 
 Esquire," (as in the subpoena.) 
 
 The writ may go from any court of record in any suit or proceeding, to bring up any pris- 
 oner detained in any jail or prison in this state, to testify, unless under sentence for felony. 
 2 R. S. 559, § 1. So on the allowance of the chanceller, a justice of the supreme court or 
 commissioner. Id. § 3. The U. States courts have also a statute power to issue this writ. 
 2 U. S. Rev. Laws, 62, § 14. Ex- parte Ballman & Swartwout, 4 Cranch, 96. Conkling's 
 Pr. 263. Whether this authority be not confined to the courts in session ? Qumre. Cpnk- 
 ling's Pr. 264. 
 
 In New York, the affidavit must state the title and nature of the suit or proceeding ; and 
 that the testimony of the witness is material and necessary on the trial, as he is advised by 
 counsel and verily believes, except the application for the writ be made by the attorney 
 general or district attorney. They need not swear to advice, &o. 2 R. S. 559, § 2. 
 
 The affidavit may be in this form : 
 
 " Supreme Court. ) , , 
 
 John Doe v. Richard Roe. \ Sarato S a c ™ ni ?> ss - 
 John Doe, the above named plaintiff, maketh oath andsaith that E. P. now a prisoner for 
 (any cause except sentence for a felony, 2 R. S. 559,) " in custody of the 
 
 sheriff of the county of Saratoga, is, and will be a material and necessary witness for this 
 deponent, on the trial of this cause, (which is an action of assumpsit,) as he is advised by 
 .counsel and verily believes: and this deponent further saith, that be is advised by counsel 
 and verily believes, that he cannot safely proceed to the trial thereof without the testimony 
 of the said E. F. : and that the said E. P. is ready and willing to attend as a witness, at the 
 trial of the said cause, as this deponent is informed and believes. 
 
 Sworn, &a - John Doe." 
 
 This affidavit would seem to be sufficient, even at eommon law, in the cases specified by 
 the statute, without the clause stating' a willingness to attend. Where the party is an actual 
 prisoner, there is no reason why he should not be compelled to attend. 2 Stark. Ev. 113, 
 note (e.) But the clause, seems necessary where the witness is not a prisoner; as if he be a 
 seaman on board a man of war ; or a soldier in the army ; in which cases he should be served 
 with a subpoena. Id. 113 in the text. See further as to the necessity and nature of an 
 affidavit, Cow. & Hill's Notes to Phil. Ev., part 2, p. 656. 
 
 No notice is necessary to the opposite party. Conkling's Pr. 264. And the affidavit for 
 the United States courts is the same in substance as that of the state where it sits. Id. 
 
 In such a case, and in any other " where it is certain or probable that the personal at- 
 tendance of the witness cannot be procured at the trial," he may be examined in New York 
 on an order to take his testimony, de bene esse ; the law and forms of which proceeding may 
 be seen at length in Jackson ex dem. Green v. Kent, (1 Cowen's Rep. 59. A similar remedy 
 is now given by statute, (2 R. S. 391,) incase of sickness or intended absence only ; but that 
 statute does not negative the common law power to grant the order in all other cases resting 
 on the like principle. See Mumford v. Church, 1 John. Cas. 147, and Wait v. Whitney, 1 
 Cowen's Rep. 69. In these cases such an examination was allowed of one witness who came 
 from another state, and another who came from Canada, on request, to be examined. In 
 Paclcard v. Hill, (1 Cowen's Rep. 489,) the court say : " One important object of these ex- 
 aminations is to enable the party to secure evidence at any time in the progress of the cause, 
 to be used on the trial, if the witness shall happen then to be without the jurisdiction of the 
 court, or unable to obey its process." 
 
156 — 2 EVIDENCE. 
 
 on the part of the defendant ;(a) and the indictment having been re- 
 moved by certiorari, and the trial being of course in the nisi prius court 
 at the assizes, makes no difrerence.(J) But at the assizes or sessions, if 
 the court upon application grant the prosecutor his • expenses, this in- 
 cludes the expenses, of the witnesses who have attended, either upon 
 recognizance or subpoena, and the amount is immediately handed over 
 to them. [5] 
 
 (a) R v. James et al., 1 Car. & P. 322. (5) R T . James et al, 1 Car. & P. 322. 
 
 The revisers admit, in their report, that the provisions of the statute are taken from the 
 oases cited ; and from another previous statute. 
 
 The case of inability to attend, from imprisonment, is expressly provided for by the 30th 
 section of the judiciary act of the U. S. of Sept. 24th, 1198. 2 U. S. Eev. Laws, 67 to 69. 
 
 [5] In New York, when a witness attends the oyer and terminer or genera] sessions, in 
 behalf of the people, on subpoena, recognizance, or on request of the public prosecutor, from 
 another state or territory, of the TJ. States or from any foreign country ; or, if such witness 
 be poor, on either fact appearing, the court may, by order in its minutes, direct the county 
 treasurer to pay him such sum of money as shall seem reasonable for his expenses; to be 
 paid to the witness, or his order, on producing a certified copy, (which shall be furnished to, 
 the witness gratuitously by the clerk,) to the county treasurer. 2 R. S. 753, § 13, 14, 15. 
 
 Order. 
 " Saratoga County, Oyer and Terminer, ) 
 Dec. 1, 1830. \ 
 
 " It appearing to this court that E. F. has attended this court, as a witness in behalf of 
 the people of the state of New York, upon the request of the public prosecutor, (or upon 
 subpoena, or by virtue of a recognizance for that purpose ;) and that said E. F. has come from 
 the state of Vermont, (or from Lower Canada, &c, or is poor,) ordered, that the county 
 
 treasurer of the county of Saratoga pay him dollars, for his expenses. 
 
 Certified, (A copy.) " Th. Palmer, Clerk." 
 
 Vid. 2 R. S. 752, § 13. The People v. Sowelh, Col. Cas. 45. This statute as to poor wit- 
 nesses, comes down from the revisal of Kent and Radcliff, in 1301, (1 vol. 263, § 15;) where 
 the word poor is also used. In ex parte Manning, (1 Caines' Rep. 59,) the supreme court 
 said the discretion to allow was limited to persons who are objects of public charity. 
 
 The fees to witnesses in the United States courts are $1,25 per day, for attendance, and 
 five cents per mile going and returning. Act of Feb. 28th, 1793, § 6, 3 U-. S. Rev. L. 135. 
 And fees are allowed to witnesses for the prosecution in criminal cases. Ex parte Johnson, 
 1 Wash. C. C. Rep. 47. In this case a witness for the defendant, being marked on the in- 
 dictment and sent to the grand jury, was held entitled to his fees from the U. S. In Penn- 
 sylvania, it seems fees are allowed on the part of the state in criminal causes. Commonwealth 
 v. Commissioners of Phil, 6 Bin 307. 
 
 In New York, the compensation is twenty-five or fifty cents per day, for attendance, ac- 
 cordingly as the witness is summoned to attend in his own, or from a foreign county; and 
 the same fees for travel at thirty miles for a day. [Now fifty cents a day in his own 
 county.] If he reside out of this state, the estimate cannot go beyond the state line, fibto- 
 land v. Lenox, 4 John. Rep. 311. The cabinet officers, or any canal commissioner, clerk or 
 surrogate, attending with official papers, have $1,25 per day; and every surveyor attending- 
 to testify concerning his survey, $1 per day. 2 R. S. 642, 3, § 33. In Massachusetts, indictees 
 for capital offences are entitled to state process to bring their witnesses at the state expense. 
 Commonwealth v. Williams, 13 Mass. Rep. 561. But in all criminal cases in New York, they 
 are bound to attond gratuitously for the people in any prosecution, and against them upon, 
 any indictment. 2 R. S. 729, 730, § 65. Before this statute, it was held that witnesses for 
 a person accused of felony were bound to attend gratuitously ; but otherwise in case of a 
 
WITNESSES' EXPENSES. 156 — 3 
 
 misdemeanor. Ex parte Chamberlain, 4 Cow. Rep. 49. In Pennsylvania, a person accused 
 may have process for his witnesses before indictment ; and he is entitled to it in the United 
 States courts. United States v. Moore, "Wall. Eep. 23. 8 art. amd. Const. IT. States. A wit- 
 ness is entitled to pay in a civil cause, if subpoenaed, though not examined ; so if examined, 
 though not subpoensed. Be Benville v. Be Benville, 1 Bin. 46. A fortiori, where he has 
 acknowledged the service of a subpoena, (Brown v. Moore, 3 J. J. Marsh. 306 ;) and an action 
 lies to recover his fees of the party who subpoenas him ; (Fuller v. Mattice, 14 John. Rep. 
 357;) not however, against the attorney. Sergeant v. Pettibone, 1 Aik. 355. But in New 
 York he can recover only his statute fees. Fuller v. Mattice, 14 John. Rep. 357. Nor can 
 " a witness subpoenaed by the defendant recover his fees of the plaintiff, though the defendant 
 succeed. Bagky v. Clement, 2 M'Cord, 244. In North Carolina, it seems witnesses are en- 
 titled to fees for attendance in behalf of the state ; to be computed from their place of residence 
 in another state, if recognized before they removed there. State v. Stewart, 1 N, Car. Law 
 Repos. 524. 
 
CHAP TEE V. 
 
 THE TRIAL, &o. 
 
 The matters I have to discuss in this chapter, I propose to arrange 
 under the following heads : 
 
 Section I. The Jurors, p. 157. 
 
 (a) Qualification, p. 157. 
 (6) Exemptions, p. 157. 
 
 (c) Jury de Medietate Linguce, p. 159. 
 
 (d) Sow returned, summoned, &c. in counties, p. 159. 
 
 (e) Jurors in boroughs, p. 160. 
 
 (/) Grand jury, called, sworn and charged, p. 161. 
 (g) Petty jury, called and sworn, p. 161. 
 (h) Challenges of jurors, p. 163. 
 {i) Petty jury charged, p. 165. 
 Section II. The Trial, p. 166. 
 
 (a) Case stated and evidence for the prosecution, p. 1 67. 
 
 (b) Case stated and evidence for the defence, p. 169. 
 
 (c) Witnesses in reply, p. 169. 
 
 (d) Reply, &c. p. 170. 
 
 (e) Adjournment of the trial,, p. 170. 
 (/) Summing itp, p. 171. 
 
 Section III. The Verdict, p. 171. 
 
 (a) In what cases the jury maybe discharged, p. 171. 
 (6) Delivery of the verdict, p. 173. 
 
 (c) For a less offence than is charged, p. 173'. 
 
 (d) For another offence than that charged, p. 174. 
 
 (e) For the offence charged, thou.gh another proved, 174. 
 (/) On several counts, p. 175. 
 
 (g) Against some of several, p. 176. 
 (h) Special verdict, p. 176. 
 Section IV. The Judgment, &c. p. 177. 
 
 1. Motion for anew trial, p. 177. 
 
 2. Motion in arrest of judgment, p. 178. 
 
 3. Judgment, p. 180. 
 
 (a) Sentence of death, p. 180. 
 
 (b) Sentence of transportation, p. 182. 
 
 (c) Sentence of imprisonment, p. 182. 
 
 (d) Hard labor, p. 183. 
 
 (e) Whipping, p. 184. 
 
THE TRIAL, &o. 156—5 
 
 (/) Punishment for felony, p. 185. 
 
 (g) Punishment far a misdemeanor at common law, p. 
 
 185. 
 (h) Sentence where the party is in custody for another 
 
 offence, p. 185. 
 (i) Judgment amended, p. 186. 
 
 4. Costs, p. 186. 
 
 (a) In prosecutions for felonies, p. 186. 
 
 (b) In prosecutions for misdemeanors, p. 187. 
 
 (c) Costs of attending before the examining magistrate, 
 
 p. 188. 
 
 (d) In prosecutions for offences at sea, p. 188. 
 
 (e) In other cases, p. 189. 
 
 (/) Rewards, &c. for apprehending certain offenders, 
 
 p. 189. 
 (g) What expenses, he. allowed, p. 190. 
 (h) Costs taxed, and order for the same, p. 191. 
 
 5. Restitution of stolen goods, p. 192. 
 
 6. The record, p. 193. 
 
 Section V. Appeal to the Criminal Appeal Court, p. 194. 
 
 (a) The court and its judges, p. 194. 
 
 (b) Appeal in what cases, p. 194. 
 
 (c) Case, p. 195. 
 
 (d) Searing and judgment, p. 196. 
 
 (e) Subsequent proceedings, p. 196. 
 Section VI. Writ op Error, p. 198. 
 
 (a) In what cases, p. 198. 
 
 (b) Attorney general 's fiat, p. 199. 
 
 (c) The writ and return, p. 199. 
 
 (d) Bail, p. 200. 
 
 (e) Assignment of errors, p. 200. 
 (/) Joinder in error, p. 201. 
 (g) Argument, &c. p. 201. 
 
 (h) Judgment, &c. p. 201. 
 Section VII. Execution, p. 202. 
 (a) Death, p. 202. 
 (J) Transportation, p. 204. 
 (c) Imprisonment, p. 204. 
 (c£) in o$er cases, p. 204. 
 
 55 
 
157 JURORS. 
 
 [*157] *SECTION I. 
 
 THE JURORS. [1] 
 
 (a) Qualification. 
 
 Every man, between the ages of twenty-one and sixty, residing in any 
 county in England, who shall have in his own name or in trustfor him 
 within the same county, 101 by the year above reprises in lands or 
 tenements, whether of freehold, copyhold, or customary tenure, or of 
 ancient demesne, or in rents issuing out of any such lands or tenements, 
 or in such lands, tenements, and rents taken together in fee simple, fee 
 tail, or for the life of himself or some other person ;— or who shall 
 have within the same county 20Z. above reprises in lands or tenements, 
 held by lease for an absolute term of twenty-one years or more, or for 
 any term of years determinable on any life or lives ; — or who, being a 
 householder, shall be rated or assessed to the poor rate, in Middlesex, 
 on a value not less than BOl, or in any other county on a value not less 
 than 20Z. ; — or who shall occupy a house containing not less than fifteen 
 windows: — shall be qualified and liable to serve on juries for the trial 
 of all issues joined in any of the Queen's courts of record at Westmin- 
 ster, and in the superior courts, both civil and criminal, of the three 
 counties palatine, and in all courts of assize, nisi prius, oyer and termi- 
 ner and jail delivery, such issues being respectively triable in the coun- 
 ty in which every man so qualified respectively shall reside, and shall 
 also be qualified and liable to serve on grand juries in courts of sessions 
 of the peace, and on petty juries for the trial of all issues joined in such 
 courts of sessions of the peace, and triable in the county, riding or 
 division, in which every man so qualified respectively shall reside.(a) 
 In Wales, the qualification is three-fifths of the qualifications above- 
 mentioned.^)^] 
 
 (a) 6 G. 4, u. 60, s. 1. (6) 6 G. 4, c. 50, s. 1. 
 
 [1] United States. — Jurors in all oases to serve in the courts of the United States, shall 
 be designated by lot or otherwise in each state, respectively according to the mode of form- 
 ing juries therein now practised, so far as the laws of the same shall render such designation 
 practicable, by the courts or marshals of the United States, and the jurors shall have the 
 same qualifications as they are required to have by the laws of the slate of which they are 
 citizens, to serve in the highest courts of Inw of such state, and shall be returned as there 
 shall be occasion for them, from such parts of the district, from time to time as the court shall 
 direct, so as shall be most favorable to an impartial trial, and so as not to incur any unneces- 
 sary expense, or unduly to burthen the citizens of any part of the district with such services. 
 2 Laws U. S. new ed. 6t. See 2 U. States, Stat, at Large (Ed. 1845) 82. 
 
 [2] In New York the qualifications of jurors, as fixed by the revised statutes are as fol- 
 low: They must be males between the ages of twenty-one and sixty, who are assessed for 
 
QUALIFICATION. 157 — 1 
 
 In all corporations within the Municipal Corporation Act, to which a 
 separate quarter sessions is or shall be granted, every burgess is quali- 
 
 personal property belonging to them in their own right, to the amount of $250, or who have 
 a freehold estate in real property in the county, belonging to them in their own right, or in 
 the right of their wives, to the value of $150.. And they must be in the possession of their 
 natural faculties, and not infirm or deorepid; and free from all legal exceptions, of fair cha- 
 racter, of approved integrity, of sound judgment and well informed. 2 R. S. 411, § 13. In cer- 
 tain counties mentioned in the statute, an interest in a contract for the purchase of land, 
 under which improvements have been made to the value of $150, is a sufficient property 
 qualification. Id. ib. § 14. 
 
 By the Connecticut statute of 1837, regarding the qualifications of jurors, a freehold quali- 
 cation is dispensed with in talesmen, as well as other jurors. Ladd. v. Prentice, 14 Conn. Rep. 
 109. In Virginia in the trial for a capital felony, it is not necessary that it should be ex- 
 pressly stated in the record that the petty jurors were freeholders. Stephen's case, 4 Leigh, 
 619. One called to serve as a juror in a criminal case, being examined on his voire dire, first 
 said that he was not a freeholder, but before the panel was completed, returned into court, 
 and said he was mistaken, and that he was a freeholder. Held that he was a good and law- 
 ful juror. HendricWs case, 5 Leigh 701. In Mississippi a juror must be either a freeholder 
 or a householder. Byrd. v. The State, 1 How. Miss. Rep. 163. But no length of citizenship 
 is required as a qualification of jurors. Ib. In Arkansas, a resident in the county, and a 
 citizen of the state, is competent to serve as a juror although his residence has not been of 
 sufficient length to confer upon him political privileges. Anderson v. The State, 5 Pike, 444. 
 In Tennessee, a citizen of one county who owns freehold lands in another county, or who is 
 the owner of an occupant right to lands situated in another county, is a good and lawful 
 juror of the county in which he resides. State v. Bryant, 10 Yerger, 527. It is not error 
 that a record does not show that jurors were electors and freeholders, in Ohio, if they are 
 not, it is ground of challenge. Shoemakers. The State, 12 Ohio Rep. 43, 
 
 In Pennsylvania, persons convicted of arson are incompetent to act as jurors. Dunlop's 
 LawofPenn., 1198, 1199. 
 
 In Virginia, no person is qualified to serve upon a petit jury in any proceeding, civil or 
 criminal, unless he is twenty-one years of age, and owns, property, real or personal, of the 
 value of one hundred dollars. Code of Virginia, (1849,) Tit 49, chap. 163. But no excep- 
 tion can be allowed against any juror after he is sworn upon the jury, on account of his 
 estate or age, or other legal disability. Ib. sec, 4. 
 
 In New Jersey, the qualifications of a juror are, that he be a citizen of the state, and resi- 
 dent within the county, above the age of twenty-one, and under the age of sixty-five years, 
 and have a freehold in lands in the county for which he is returned. Rev. Sts. of N. J., Tit. 
 34, ch. 13. sec. 7. 
 
 In Iowa, all qualified electors of good moral character, sound judgment, and in full pos- 
 session of the senses of seeing and hearing are competent jurors in ther reepective counties. 
 Code of Iowa, 1851, eh. 96, sec. 1630. 
 
 In Mississippi, no person under the age of twenty-ono, or of the age of sixty years, nor 
 any person who is not a citizen of the United States (except where a jury de medietate linguae, 
 may be directed.) Nor any person who has been convicted of felony, perjury, forgery, or 
 other offence punishable with stripes, pillory or burning in the hand, can serve on a jury for 
 the trial of any cause civil or criminal. Hutchinson's Mississippi Code, p. 879. 
 
 In Massachusetts a person convicted of any scandalous crime, or guilty of "any gross 
 immorality," is disqualified from serving as a juror. Rev. Sts. of Mass. ch. 95, sec. 7. So 
 also in Maine. Rev, Sts. of Maine, ch. 135, sec. 6. 
 
 In Georgia, no person is capable to serve on a jury for the trial of treason, felony, breach 
 of the peace, or any other cause of a criminal nature, unless he is qualified to vote at elec^ 
 tions for members of the legislature. Hotchkiss' Stat. Law of Georgia, 578. 
 
 In Maryland, to act as juror, the person must have attained the age of twenty-five years. 
 Dorsey's Laws of Maryland, vol. 1, p. 350. 
 
157 — 2 JURORS. 
 
 fied and liable to serve on grand juries in such borough, and also upon 
 juries for the trial of all issues joined in any court of quarter sessions 
 of the peace triable within the borough, of which person shall be a 
 burgess.(a) 
 
 If persons serve on a jury, who are not qualified, it is only matter of 
 challenge, and must be objected to, if at all, by way of challenge.^) 
 
 (b) Exemptions. 
 
 Peers are exempt from serving on juries ; so are the judges of the 
 courts of record at Westminster ; clergymen in holy orders ; priests of 
 the Eoman Catholic faith, who have taken and subscribed the 
 [*158] oaths and declarations required *by law ; persons who teach 
 or preach in a congregation of protestant dissenters, whose 
 place of meeting is registered, and who follow no secular occupation, 
 except that of schoolmaster, producing a certificate of some justice of 
 the peace of their having taken the oaths and subscribed the declara- 
 tion required by law ; Serjeants and barristers-at-law actually practic- 
 ing ; members of the society of doctors of law, and advocates of the 
 civil law actually practicing; attornies, solicitors, and proctors actu- 
 ally practicing, and having duly taken out their annual certificates ; offi- 
 cers of the courts of law and equity, and the ecclesiastical and admiralty 
 courts; coroners, jailers and keepers of houses of correction; members 
 and licenciates of the royal college of physicians, actually practicing; 
 surgeons, being members of the royal college of surgeons, in London, 
 Dublin, or Edinburgh, and actually practicing; apothecaries, certificated 
 by the Apothecaries' Company, and actually practicing; officers of the 
 navy or army on full pay ; pilots licensed by the Trinity House, at 
 Deptford Hall, or Newcastle-upon-Tyne, and masters in the buoy or 
 light service of these corporations, and pilots licensed by the lord 
 warden of the cinque ports, or by statute or charter in any other port ; 
 household servants of Her Majesty; officers of customs or excise, sher- 
 iff's officers, high constables and parish clerks.(c) The inhabitants of 
 the city and liberty of Westminster also, are exempt from serving on 
 juries at the sessions of the peace- for the county of Middlesex.^) 
 
 Aliens are not qualified to be jurors, except upon juries de medietate 
 lingua ;(e) but this is mere matter of challenge.^) Also persons at- 
 tainted of treason or felony, or convicted of any crime which is infam- 
 ous, unless they have obtained a free pardon, or persons under outlawry 
 or excommunication, shall not be qualified to serve on juries.^) 
 
 (a) 5 & 6 W\ 4, o. 76, a. 121. 4, c 16, s. 121. 
 
 lb) Semb. See R. v. Sutton et al, 8 B. &, (d) 6 G. 4, o. 60, s. 49. 
 C 417 R. v. Sullivan et al, 8 Ad. &, El. (e) 6 G 4, o. 60, s. 3. 
 
 831. 
 
 (<7) j!?. v. Sutton, et al, 8 B. & 0. 417. 
 
 (c) 6 G. 4, c. 50, s. 2. And see 5 & 6 W. (h) 6 G. 4, o. 60, s. 3. 
 
EXEMPTIONS. 158 
 
 No justice of the peace shall be summoned or impanelled as a juror, 
 to serve at the sessions of the peace for the jurisdiction of which he 
 is a justice. (a) 
 
 Besides the exemptions above-mentioned, every member of the coun- 
 cil of any borough, every justice assigned to keep the peace therein, 
 and the treasurer and town-clerk thereof, shall be exempt and disquali- 
 fied from serving on any jury within the borough, and shall be exempt 
 from serving on any other jury within the county in which such 
 borough is situate ; and all burgesses of a borough, for which a sepa- 
 rate court of quarter sessions shall be holden, shall be exempt from serv- 
 ing on juries for the trial of issues at the sessions of the county.(5)[l] 
 
 (a) 6 G. 4, o. 50, s. 48. (6) 5 & 6 W. 4, c. 16, s. 22. 
 
 [2] In New York, courts of special sessions, as well as other courts are authorized to dis- 
 charge any person from serving on a jury in the following cases : 
 
 1. When it satisfactorily appears that such person is not, at the time, the owner, in his 
 own right, or in the right of his wife, of a freehold estate in real property, situated within 
 the county, of the value of $150, and is not the owner of personal -property to the value of 
 $250; and in the particular counties above alluded to, that such person is not possessed of 
 the property qualification required by the statute : 
 
 2. When it appears that such person is under twenty-one years of age, or over sixty years 
 of age ; or that he is not in the possession of any of his rational faculties. 
 
 3. When there is any legal exception against such person. 
 
 4. When such person is a non-commissioned officer, musician, or private of any uniformed 
 company or troop and is duly equipped and uniformed according to law, and claims such 
 exemption. 
 
 5. When such person is a member of any company of firemen duly organized according 
 to law. 
 
 6. When such person is in the actual employment of any glass, cotton, linen, woollen, or 
 iron manufacturing company, by the year, month or season. 
 
 1. When such person is a superintendent, engineer, or collector or any canal authorized 
 by the laws of this state, any portion of which is actually constructed and navigated. 
 
 8. When such person is a minister of the gospel, or teacher in any college or academy, or 
 when such person is or shall be specially exempted by law from serving on juries. 2 R. S. 
 415, § 33. Under this head is to be included the following classes of persons who are not 
 embraced in the above enumeration of persons exempt, viz. : The clerks of canal collectors, 
 not exceeding two, lock-tenders, inspectors of boats, and weigh-masters ; the superintendent 
 and inspector of the Onondaga Salt Springs, and each of their deputies, and all persons em- 
 ployed in attendance upon any works for the manufacturing of coarse salt ; and the keepers 
 of poor-houses, alms-houses, &c. 1 id. 250, § 181 ; id. 278, § 153 ; id. 631, § 12. 
 
 Courts are authorized to excuse persons returned as jurors from serving whenever it appears, 
 1st. That the person returned is a practicing physician and Has patients requiring his attend- 
 ance : 2d. That he is a surrogate, or justice of the peace, or executes any other civil office, 
 the duties of which are, at the time, inconsistent with his attendance as a juror : 3d. That 
 he is a teacher in any school, actually employed and serving as such : or 4th. When, for any 
 other reason, the interests of the public or of the individual juror will be materially injured 
 by such attendance ; or his own health, or that of any member of his family, requires his 
 absence from the court. 2 id. 416, § 35. 
 
 Aliens are incapable of serving on juries. 1 id. 121, § 20. 
 
 In Massachusetts, the following persons are exempt by law from serving as jurors : The 
 governor, lieutenant governor, members of the council, secretary and treasurer of the com- 
 
158—1 JURORS. 
 
 Formerly Quakers and Moravians could not serve on juries, 
 [*159] for they could not be sworn ;(a) *but as they may now make 
 
 (a) See R v. diannens,. Ry. & M. 3T4. 
 
 monwealth, all judges and justices of any court, except justices of the peace, all county and 
 special commb-sion^rs, clerks of courts, registers of probate, and registers of deeds, sheriffs 
 and their deputies, coroners, constables and criers of the courts, marshals of the United 
 States and their deputies, and all other officers of the United States, counsellors and attor- 
 neys at law, settled ministers of the gospel, officers of colleges, and preceptors and teachers 
 of incorporated academies, practicing physicians, and surgeons regularly licensed, cashiers of 
 incorporated banks, and constant ferrymen, and all persons who are more than sixty-five 
 years old. Rev. Sts. of Mass. ch. 95. All members of the fire department, in the city of 
 Boston are exempt from serving as jurors ; and all engine men and members of the fire 
 departments, in other towns, may be exempted, by their respective towns, by vote at any 
 legal town meeting. lb. sec. 3. No member of the legislature can, during the session of 
 the general court, be required to perform the duty of a juror. Supplt. to Rev. Sts. of Mass. 
 ch. 21. All members of the active volunteer militia are entitled to exemption from duty as 
 jurymen, in all cases, by pleading and proving the fact by their own oath, in conrt, or by 
 leaving a certificate of the fact, duly certified by the commanding officer of the company, or 
 any general or field officer of line or staff, with the authorities of the town or city in which, 
 they reside, who may be entrusted with the drawing of jurymen. lb. ch. 218, sec. 8. 
 
 In Pennsylvania, jurors are selected from the taxable citizens of the county. Dunlop's 
 Laws of Penn. p. 621, 622. 
 
 In Ohio, jurors must have the qualifications of electors. Rev. Stat, of Ohio, eh. 64, sec. 3. 
 
 In Michigan, the following persons are exempt from serving as jurors; the governor, lieu- 
 tenant governor, secretary, treasurer, and auditor general of the state, the justices of the Su- 
 preme Court, all judges of courts of record, acting commissioner of internal improvement, 
 commissioner of the land office, superintendent of public instruction, clerks of courts, regis- 
 ters in chancery, registers of deeds, sheriffs and their deputies,' coroners, constables, all offi- 
 cers of the United States, attorneys and counsellors at law, and solicitors and counsellors in 
 chancery, officers of the university, officers of colleges, settled ministers of the gospel, pre- 
 ceptors and teachers of incorporated academies, all superintendents, engineers and collectors 
 of any canal or railroad authorized by the laws of the state, any portion of which is actually 
 constructed and used, constant ferrymen, all members of any company of firemen organized 
 according to law, all persons more than sixty years of age. Rev. Stat, of Mich. tit. 22, ch. 
 103, sec. 25. 
 
 In Michigan, the court to which any person is returned as a juror, is required to excuse 
 such juror from serving at such court, whenever it appears; 1. That he is exempt from 
 serving on juries by the provisions of the preceding section ; or, 2. That he is a practising 
 physican or surgeon, and has patients requiring his attention ; or, 3. That he is a justice of 
 the peace, or executes any other civil office, the duties of which are at the time inconsistent 
 with his attendance as a juror ; or,. 4. That he is a teacher of any school, actually employed 
 and serving as such ; or, 5. When for any other reason, the interests of the public, or of the 
 individual juror, will be materially injured by such attendance, or his own health, or that of 
 any member of his family, requires his absence from such court. lb. sec. 26. 
 
 In Maine, the following persons are exempt from serving as jurors : the governor, coun- 
 sellors, judges and clerks of the common law courts, secretary and treasurer of the state, all 
 officers of the United States, judges and registers of the probate, registers of deeds, settled 
 ministers of the gospel, officers of any colleges, preceptors of incorporated academies, physi- 
 cians and surgeons regularly authorized, cashiers of incorporated banks, sheriffs and their 
 deputies, coroners, counsellors and attorneys at law, county commissioners, constables,, and 
 constant ferrymen. Rev. Stat, of Maine, ch. 135, sec. 3. 
 In Virginia, the persons exempt from serving on a jury are : the governor of the state, 
 
JURY DE MEDIETATE LINGUA. 159 
 
 an affirmation instead of an datb,{a) they may be jurors in both 
 civil and criminal cases. So' "may members of the sect called Sep- 
 aratists.^) 
 
 (c) ; Jury de medietate linguce. 
 
 On the prayer of every alien, indicted or impeached of any felony 
 or misdemeanor, the sheriff or other proper minister shall, by com- 
 mand of the court, return for one half of the jury, a competent num- 
 ber of aliens, if so many be in the town or place where the trial is had, 
 and if not, then so many aliens as shall be found in the same town, or 
 pi ice, if any ; and no such alien jurors shall be challenged for want of 
 freehold or other qualification, although they may for any other cause.(c) 
 Where an alien woman, married to a British subject,- was, with her hus- 
 band, indicted for murder, it was holden by the judges of the -appeal 
 
 (a) See ante, p. 149, raation, ante, p. 150. 
 
 [b) Ante, p. 150. See the form of the affir- (c) 6 G. 4, e. 50, s. 41. 
 
 -. m 
 
 practising attorneys, officers of the fire department of a town, officers of any court, persona 
 exempt from militia duty, except school commissioners, trustees of free schools, officers of 
 the militia, and officers and members of volunteer companies. Code of Va. 1849, tit. 49, oh. 
 163, sec. 2. 
 
 In Wisconsin, the statute excuses the following persons from serving as jurors: the gov- 
 ernor, lieutenant governor, secretary and treasurer of the state, all judges of courts of record, 
 acting commissioners of the board of public works, register and treasurer of the state land 
 office, superintendent of public instruction, clerks of courts, registers of deeds, sheriffs and 
 their deputies, coroners, constables, all officers of the United States, attorneys and counsel- 
 lors at law, and solicitors and counsellors in chancery, officers of the university, officers of 
 colleges, ministers of the gospel, preceptors and teachers of incorporated academies, one 
 teacher in each common school, practising physicians and surgeons, one miller to each grist 
 mill, one ferryman to each licensed ferry, all superintendents, engineers and collectors of any 
 canal or railroad authorized by the laws of the state, any portion of which is actually con- 
 structed and used, all members of companies of firemen organized according to law, all per- 
 sons more than sixty years of age, and all persons not of sound mind or discretion, persons 
 subject to any bodily infirmity amounting to any disability ; and all persons are disqualified 
 from serving as jurors, who have been convicted of any infamous crime. Eev. Stat, of Wis. 
 ch. 97, sec. 2. 
 
 In Mississippi, all officers in the executive department of the government, all judicial offi- 
 cers and officers of the several courts of the state, all justices of the peace, all teachers, and 
 all keepers of public ferries, actually engaged in their respective employments, are exempt 
 from serving on juries; but uo other freeholder or householder is excused from serving as a 
 juror in his proper county, except for special cause, shown to the satisfaction of the court at 
 that time. Hutchinson's Miss. Code, 889. 
 
 In Maryland, all magistrates, delegates, coroners, school-masters, overseers of highways 
 and constables, are exempt from serving as jurors. Dorsey's Laws of Maryland, vol. 1, ch. 
 37, sec. 4. 
 
 In Iowa, the following persons are exempt from liability to act as jurors : All persons 
 holding office under the laws of the United States or of the state; all practising attorneys, 
 physicians, and clergymen ; all acting professors or teachers of any college, school, or other 
 institution of learning; and all persons disabled by bodily infirmity or over sixty-five years 
 of age. Code of Iowa, 1 85 1, ch. 96, sec. 1631. 
 
159 — 1 JURORS. 
 
 court, that she was not entitled to have a jury de medietate linguae ; for 
 by stat. 7 & 8 Vict. c. 66, s. 16, any woman married to a natural-born 
 subject or person naturalized, shall be deemed and taken to be herself 
 naturalized, and have all the rights and privileges of a natural-born 
 subject.(a)[l] < 
 
 (d) Sow returned, summoned, &c, in counties. 
 
 In the first week in July in every year, the clerk of the peace in 
 every county shall issue his warrant to the high constables, command- 
 ing them to issue their precepts to the churchwardens and overseers of 
 the poor of the several parishes within their respective constablewicks, 
 requiring them to return a list of all men residing within their parishes, 
 &c, qualified and liable to serve on juries.(fr) The high constables 
 make out their precepts accordingly ;(c) and the churchwardens and 
 overseers make out their lists ;(d) and fix a copy on the church door on 
 the three first Sundays in September ;(e) and at a special petty sessions, 
 to be holden in the last week in September, these lists shall be pro- 
 duced, and the justices may then strike out the names of any persons 
 not qualified, or not able to serve by reason of any infirmity, or insert 
 those omitted ; and the lists so revised shall then be delivered to the 
 high constable, who shall deliver them to the court of quarter sessions at 
 the next session.^) The lists are then copied into " The jurors' book" 
 by the clerk of the peace, and the book delivered by him to the sheriff, 
 to be used from the 1st of January, for one year.(A) 
 
 Before each assizes or sessions, a precept issues to the sheriff, requir- 
 
 (a) R. v. Maria Manning, 19 Law. J., 1 m. (d) 6 G. 4, o. 50, s. 8. 
 
 2 Car. & K. 887. (e) Id. s. 9. 
 
 (6) 6 G. 4, c. 50, s. 4. (?) Id. s. 10. 
 
 (c) Id. s. 6. (h) Id. s. 12. 
 
 [1] la New York, in case a prisoner, on his arraignment, suggests that he is an alien, and 
 claims the privilege of a trial by jury de medietate linguce, the court of oyer and terminer may 
 order such jury to be summoned instanter. People v. McLean, 2 Johns. Rep. 381. The right 
 to such a jury, is, however, now abolished in New York. 2 N. Y. Rev. Stat. 134. 
 
 In Pennsylvania, the statute provides that no alien shall, in any civil or criminal case 
 whatever, be entitled to a jury dt medietate linguce. Dunlop's Laws of Penn. p. 630. So, also, 
 in Michigan. Rev. Stat, of Mich. ch. 103, sec. 43. 
 
 An alien is not entitled to a jury de medietate, in North Carolina. Taylor, C. J., contra, 
 State v. Antonio, 4 Hawk's Rep. 200. 
 
 In Virginia, the statute (1 Rev. Code, ch. 15, sec. 13,) that "juries de medietate linguce may 
 be directed by the courts respectively," is not imperative that they shall direct such a jury 
 in cases even of »• criminal nature in which aliens are parties, but confers a discretionary 
 power on the courts to direct such jury, if to them it appear proper. Richard's case, 11 
 Leigh, 690; Brown's case, 11 Leigh, 711. 
 
 There is'no such jury in Massachusetts. 7 Dane's Abr. 331, ch. 221, art. 6, sec. 2 ; 12 Am. 
 Juri9t, 333. 
 
 It is held in Illinois, that an alien is not qualified to serve as a juror in any case. Grey- 
 kowski v. People, 1 Scam. 480 ; Stone y. People, 2 ib. 337. 
 
HOW KETtTRNED, SUMMONED, &c. 159—2 
 
 ing him to return a competent number of jurors ;(a) and the sheriff 
 shall thereupon return the names of men contained in the jurors' book, 
 and no others.(S) For the assizes, the judges appointed may 
 order the sheriff to *return any number not exceeding 144, to [*160] 
 serve indiscriminately on the civil and criminal sides, and to di- 
 vide them into two sets, one to serve at the beginning of the assizes, 
 and the other for the remaining time.(c) And the jurors shall be sum- 
 moned ten days at least before the day they are required to attend. (eT) 
 In cases of treason or misprison of treason, a list of the jurors returned, 
 mentioning their names, professions, and places of abode, shall be de- 
 livered to the prisoner at the same time with the copy of the indict- 
 ment.^) 
 
 By sect. 20, the court of King's Bench, and all courts of oj^er and 
 terminer and jail delivery, the superior criminal courts of the three 
 counties palatine, and courts of sessions of the peace, shall respectively 
 have and exercise the same power and authority as they have hereto- 
 fore had and exercised, in issuing any writ or precept, or in making 
 any award or order, orally or otherwise, for the return of a jury for 
 the trial of any issue before any such courts respectively, and for the 
 amending or enlarging the panel of jurors returned for the trial of any 
 such issue ; and the return to every such writ, precept, award, or order, 
 shall be made in the manner heretofore used and accustomed in such 
 courts respectively, save and except that the jurors shall be returned 
 from the body of the county, and not from any particular hundred, &c, 
 and that they be qualified according to this Act. This seems to recog- 
 nize the right of a court of quarter sessions, amongst others, to order 
 the sheriff to return a jury immediately, as well in misdemeanors as 
 felonies, which seems formerly to have been doubted. (g) 
 
 The sheriff shall register in the jurors' book the names of such petty 
 jurors as shall have served at the assizes, and give them certificates of 
 their service ;(h) and the clerk of the peace shall send him a list of those 
 who have served at sessions, which he shall likewise register ;(i) and no 
 man, having such certificate, shall afterwards be summoned to serve at 
 the assizes, for one year in Wales, or the counties of Hereford, Cam- 
 bridge, Huntingdon, or Eutland, — for four years in Yorkshire, — and 
 for two years in any other county; — or to serve at the sessions, within 
 one year in Wales, or the counties of Hereford, Cambridge, Hunting- 
 don, or Eutland, — or within two years in any other county. (&)[1] 
 
 (a) 6 S. 4, c. 50, s. 13. fer) See 2 Hawk. e. 4, ss. 1, 4. 2 Hale, 
 
 (&) Id. a. 14. 261, 262. 
 
 (c) Id. s. 22. (h) 6 G. 4, c. 50, s. 40. 
 
 \d) Id. s. 25. (*) Id. s. 41. 
 
 (e) Id. s. 21. W Id. s. 42. 
 
 Til In the State of New-York, before the revised statutes went into , effect, the party 
 
 56 
 
160 JURORS. 
 
 bringing the cause to trial was obliged to issue a venire to the sheriff of the county where 
 the cause was to be tried, requiring him to summon a jury for that purpose. This is now, 
 however, dispensed with in all cases, except where a foreign jury is ordered. 2 N. T. Rev. 
 Sts. 410. sec. 9. The manner of summoning juries as prescribed by the Revised Statutes, 
 is as follows : — 
 
 Fourteen days before the holding of any circuit court, or sittings, or of any special court 
 of oyer and terminer, when no circuit is appointed to be held at the same time, or of any 
 court of common pleas, or mayor's court, the clerk of the county in which such court is to 
 be held, shall draw the names of thirty-six persons, to serve as jurors to such court, and 
 any number in addition thereto that shall have been ordered according to law. 2 Rev. Sts. 
 413, sec. 24. At least six days notice of such drawing shall be given by such clerk, by 
 publishing the same in a newspaper of the county if there be any, and if not, by affixing 
 such notice on the outer door of the house where the court for which such jury is to be 
 drawn, is about to be held ; a copy of such notice shall also be served on the sheriff of the 
 county, and upon the first or some other judge of the county courts, at least three days pre- 
 vious to the time appointed therein for drawing. Id. sec. 25. At the time so appointed, it 
 shall be the duty of the sheriff of the county in person, or by his under sheriff, and of the 
 first, or other county judge on whom such notice shall have been served, to attend at the 
 clerk's office of the county to witness the drawing of such jury. Id. sec. 26. If the sheriff, 
 or county judge so notified, do.not appear, the clerk shall adjourn the drawing of such jury 
 to the next day, and shall, by written notice, require the delinquent sheriff or judge, or some 
 other county judge, or any two justices of the peace to attend such drawing on the ad- 
 journed day. Id. sec. 27. If, at the adjourned day, the sheriff or under sheriff, and a 
 county judge, or justice of the peace, appear, or if any two county judges or justices of the 
 peace appear, but not otherwise, the clerk shall proceed, in the presence of the officers so 
 appearing, to draw the jury. 2 Rev. Sts. 414, sec. 28. The clerk shall conduct such draw- 
 ing as follows: — 
 
 1. He shall shake the box containing the names of jurors returned to him, so as to mix 
 the slips of paper on which such names were written as much as possible. 2. He shall then 
 publicly draw out of the said box as many of the said slips of paper containing such names 
 as there shall be jurors required by law, or specially ordered for such court. 3. A minute 
 of the drawing shall be kept by one of the attending officers in which shall be entered the 
 name contained on every slip of paper so drawn, before any other slip shall be drawn. 4. 
 If, after drawing the whole number required, the name of any person shall appear to have 
 been drawn who is dead, or become insane, or who has permanently removed from the 
 county to the knowledge of the clerk, or any other attending officer, an entry of such fact 
 shall be made in the minute of the drawing ; and the slip of paper containing such name, 
 shall be destroyed. 5. Another name shall then be drawn in place of that contained on 
 the slip of paper so destroyed, which shall be in like manner entered in the minutes of the 
 drawing. 6. The same proceedings shall be had as often as may be necessary, until the 
 whole number of jurors required, shall have been drawn. 1. The minute of the drawing 
 shall then be signed by the clerk, and the attending officers, and shall be filed in the clerk's 
 office. 8. A list of the names of the persons so drawn, with their additions and places of 
 residence, and specifying for what court they were drawn, shall he made and certified by 
 the clerk 'and the attending officers, and shall be delivered to the sheriff of the county. Id. 
 sec. 29. The sheriff shall summon the persons named in such list, to attend such court, at 
 least six days previous to the sitting thereof, by giving personal notice to each person, or by 
 leaving a written notice at his place of residence, with some person of proper age. He 
 shall return the said list to the court at the opening thereof, specifying those who were sum- 
 moned, and the manner in which each person was notified. Id. sec. 30. 
 
 The New- York Revised Statutes provide that the jury for the trial of an indictment, shall 
 be drawn in the same manner as they are drawn in civil cases, except that the defendant in 
 an indictment is entitled to have at least twenty-four names in the box, from which the jury 
 is selected. 2 Rev. Sts. 733. sec. 3, 4, 5. Id. 420, 421. The jurors returned for a circuit 
 court are to be the jurors for the oyer and terminer, when both courts are held at the same 
 
HOW RETURNED, SUMMONED, Ac. 160—1 
 
 time ; and the jurors, returned for any county court are to be the jurors for the court of 
 sessions appointed to be held at the same time. Id. lb. sec. 2. The same proceedings re- 
 specting the empannelliDg of juries and keeping them together, which are prescribed by law 
 in civil cases, are also applicable to trials on indictments. 2 Rev. Sts. 635, sec. 14. 
 
 In the State of New- York the manner of summoning a jury in the court of sessions, 
 where one is asked for, is as follows : The officer to whom a venire for a jury is delivered 
 is to execute the same fairly and impartially, and must not summon any person whom he 
 suspects to be biased or prejudiced for or against the defendant. He must summon the 
 jurors personally, and make a list of the persons summoned, which he must certify and 
 annex to the venire, and return it, with the venire, to the court. 
 
 The names of the persons returned by the efficer are to be respectively written on several 
 and distinct pieces of paper, as nearly of one size as may be ; and the officer by whom the 
 venire was served, must, in the presence of the court, roll up and fold them as nearly as may 
 be in the same manner, and put them together in » box or other convenient thing. The 
 court is then to draw out six of such papers, one after another, and if any of the persons 
 whose names are thus drawn, do not appear, or shall be challenged and set aside, then such 
 further number must be drawn as will be sufficient to make up the number of six, after all 
 legal causes of challenge have been allowed. 
 
 If a sufficient number of competent jurors are not drawn, the court may supply the defi- 
 ciency by directing the constable to summon any one of the bystanders, or others, who are 
 competent and against whom no cause of challenge appears, to act as jurors in the cause. 
 2 R. S. 712, §§ 10 to 13. 
 
 The following provisions in relation to juries in the city of New- York, were enacted by 
 the legislature in 1847 ; (Vide Sess. Laws, 1847, ch. 495.) 
 
 It is not necessary as a qualification, for any juror in the city of New- York, that he be 
 actually assessed in the said city, but all persons residing in said city who are qualified to 
 serve as jurors, and not exempted by any of the laws of this state, must be selected as such, 
 whether they have been assessed or not. 
 
 It is enacted that the said jurors shall be selected by a person to be appointed by the su- 
 pervisors of said city, the Judges of the Superior Court and the Judges of the Court of 
 Common Pleas of said city and county, who must be known as the commissioner of jurors, 
 and be authorized to appoint one or more assistants. 
 
 The commissioner of jurors is required to execute a bond to the mayor, aldermen and 
 commonalty of the city, in the penalty of five thousand dollars, with two sureties, to be ap- 
 proved by the mayor, conditioned for the faithful discharge of his duties. 
 
 The commissioner must proceed to the selection of jurors immediately after the first day of 
 May in each year, and the names must be entered in a book alphabetically, designating the 
 ward, occupation and residence of each. After the first day of June in each year, as soon 
 as the list is completed, the commissioner must publish a notice of at least ten days, in the 
 newspapers in which the notices of the corporation of the city of New- York are printed, 
 that the petit jury list is ready for examination and correction at his office, and he is to re- 
 ceive evidence of exemptions in the same manner as authorized in courts of record. The 
 names of all persons found to be exempt from serving as jurors, must be struck from the 
 list, and the ground of exemption recorded. "When the list is completed, a certified copy 
 must be delivered to the county clerk, who is required to prepare the ballots and deposit 
 them in the box, in the manner now required by law. The commissioner may, in like man- 
 ner at any time return the names of any persons omitted on the list, if no sufficient cause 
 be shown to excuse such persons, and their names must be deposited in the box as jurors 
 for the residue of the year that the other jurors are to serve. 
 
 It is enacted that the jurors hereafter to be summoned for the several courts authorized 
 to try issues of fact in New- York, shall, on requisition being made by such courts respect- 
 ively, directed tb the county clerk, be drawn from the petit jury box in his office, a minute 
 of which drawing must be certified and filed with said clerk, as now required, who must 
 deliver a copy thereof to the officer authorized to summon suOh jurors in the manner now 
 
1QQ 2 JURORS. 
 
 required by law. But no fine can be imposed by such courts on any juror failing to attend, 
 unless he shall have been duly summoned. 
 
 The clerks of the respective courts are required within ten days after the jurors are dis- 
 charged, to deliver to the clerk of the city and county of New- York, a certified list of all 
 the jurors who were returned to such court, and must specify therein : 
 
 1. Those who appeared and served ; 
 
 2. Those who were discharged on account of their being exempt from serving on juries, 
 or on account of their being unqualified ; 
 
 3. Those who, for any other reason, were excused from serving, and those who made de- 
 fault in appearing and serving. Laws 1811. 2 R. S. 512, sec. 31. 
 
 The county clerk is required to return to the box from which they were taken, the names 
 of those jurors Who appear from such certified list , to have been excused from serving, or to 
 have made default in their appearance ; he must destroy the ballots containing the names 
 of those who were discharged on account of their being exempt, or on account of their be- 
 ing unqualified ; and he must deposit the ballots containing the names of those who ap- 
 peared and served, in a separate box, distinct from that from which they were taken. , 
 
 The clerks of the several courts in New- York, to which jurors are summoned, must, 
 within ten days after the expiration of each term, or, after the discharge of the jurors thus 
 summoned, make a return to the commissioner of all jurors fined in their respective courts, 
 setting forth the date when fined, the amount of each fine, and the residence of each juror, 
 
 The commissioner is required to notify each of the jurors, by written or printed notice, of 
 the fine imposed upon him, and requiring the payment thereof, or to appear before him on a 
 day to be named in the notice, to show cause, if any he have, for remitting the same. 
 
 FORM OF NOTICE. 
 
 To Mr. John Doe: — 
 
 This is to inform you that the Court has imposed upon you the fine of for refusal 
 
 to serve therein as a juror on the 7th day of May last, pursuant to the command of said 
 court ; and that you are required to pay the said fine, or to appear before me on the 10th 
 day of June instant, at 11 o'clock in the forenoon, to show cause, if any you may have, for 
 remitting the same. 
 
 Dated June 5th, 1849. David Boyd, 
 
 Commissioner of Jurors. 
 
 The commissioner, upon receiving a legal excuse, must enter an order remitting the whole 
 fine, or a part of it. 
 
 ORDER OF COMMISSIONER. 
 
 In the matter of John Doe, ) 
 a defaulting juror. j 
 
 "Whereas, on the 5th day of June instant, I caused a notice to be served upon John Doe, 
 informing him that, &c, [here recite the notice.'] And whereas, the said John Doe, on this 
 day, at the hour aforesaid, came before me, and rendered the following legal excuse for his 
 said default, to wit: [here state the excuse:"] It is therefore ordered ahd adjudged that the said 
 
 fine [or " that the sum of , being one-third part of said fine "] be, and the same is, 
 
 hereby remitted. 
 
 Dated June 10th, 1849. v David Boyd, 
 
 Commissioner of Jurors. 
 
 At the expiration of ten days from the day appointed for the hearing of the excuses of 
 such jurors, the commissioner must issue a warrant, directed to the sheriff of the city and 
 county of New-York, commanding him to collect of the several persorts named in a sched- 
 ule to be annexed to such warrant the several sums affixed to their names respectively in 
 such schedule, and pay over the same to the treasurer of the county. 
 
 The schedule must contain the names of the jurors fined, their respective places of resi- 
 dence, and the amount of fines imposed on each. 
 
HOW RETURNED, SUMMONED, &o. 160—3 
 
 FORM OF WARBANT. 
 
 City and County of New- York, ss. 
 
 To the Sheriff of said City and County, Greeting : — 
 
 "Whereas, the persons named in the schedule hereunto annexed were severally fined by 
 
 the Court, on the 7th day of May, 1849, as defaulting jurors, and I caused «■ written 
 
 notice of such fine, requiring the payment thereof, or an appearance before me on the 10th 
 day of June instant, to show cause, if any they might have, why the same ought to be re- 
 mitted, to be served upon each of said defaulting jurors according to law. And whereas, 
 none of the said jurors either paid the said fine or appeared before me to show cause pursu- 
 ant to the notice aforesaid [or whereas, the said jurors, each for himself, appeared before me, 
 pursuant to the notice aforesaid ; but each and every of them failed to render any legal ex- 
 cuse for their said default] Now, therefore, you are hereby commanded, in the name of the 
 people of the state of New- York, to collect of the several persons named in the schedule 
 hereunto annexed the several sums affixed to their names respectively in such schedule, by 
 levy and sale of the goods and chattels of such persons, and pay over the same to the trea- 
 surer of your county. And make return within thirty days from the receipt hereof, accord- 
 ing to law. 
 
 Given under my hand this 21st day of June, 1849. 
 
 David Boyd, 
 
 Commissioners of Jurors. 
 
 The return of the warrant may be enforced in the Supreme Court in the same manner as 
 the return of civil process ; and it may be renewed, in like manner, in cases where fines 
 have not been paid or collected. 
 
 Each person applied to by the commissioner or his assistants for information as to the lia- 
 bility of persons to perform jury duty in the city, must communicate correct information ; 
 and in case of a refusal to give such information as they may possess on the subject, or give 
 false information, they will forfeit the sum of fifty dollars, to be prosecuted by the commis- 
 sioner in the name of'the mayor, aldermen, and commonalty of the city, the money to be 
 paid into the treasury of the city. 
 
 The grand or petit jurors summoned to attend any court in the city, by written or printed 
 notice left at their respective places of residence, and not appearing before such court per- 
 suant to the summons, must be ordered by the court to show cause before the commissioner, 
 on the first Monday succeeding the expiration of the term of the court. The jurors must 
 be summoned to appear before the commissioner, and the same proceedings must be had 
 thereon by the commissioner as were hitherto had by the courts in relation to defaulting 
 jurors. 
 
 After the deposit of the ballots, the several courts in the city may order as many jurors 
 to be summoned for their respective courts, as in their judgment may be necessary. 
 
 In Massachusetts, the selectmen of each town, every three years, prepare a list of the 
 inhabitants of the town qualified to serve as jurors, including not less than one for every one 
 hundred inhabitants of the town, and not more than one for every sixty inhabitants, com- 
 puting by the then last census. Rev. Stat of Mass. ch. 95, sec. 4. The list when so prepared, 
 is laid before the town, and the town may alter it, by adding to, or striking from it any 
 names. lb. sec. 5. The selectmen then cause the names on the list to be written each on 
 a separate paper or ballot, and roll up or fold the ballots, so as to resemble each other as 
 much as possible and so that the names written on them are not visible on the outside. The 
 ballots are then placed in a box kept by the town clerk for that purpose. lb. see. 6. Jurors 
 are selected by drawing ballots from the box. Sec. 8. When any jurors are to be drawn, the 
 town clerk and selectmen attend at the clerk's office, or at some other public place appoint- 
 ed for the purpose; and if the town clerk is absent the selectmen may proceed without him. 
 The meeting for drawing jurors must be held not less than seven days, nor more than twenty 
 one days, before the day when the jurors arc required. The ballots in the jury box are 
 shaken and mixed together, and one of the selectmen openly draws from it as many ballots, 
 as are equal to the number of jurors required. Sec. 9. No person is liable to serve as a 
 juror in any court, oftener than once in three years. Sec. 1 2. The clerks of the several 
 
160 — 4 JURORS. 
 
 courts, in due season before every term, or at such other times, at the respective courts order 
 issue writs of venire facias for jurors. Sec 13. The venires are delivered to the sheriff.of 
 each county, and by him transmitted to a constable in each of the towns to whichthey are 
 respectively issued, and they are served by the constable forthwith on the selectmen and 
 town clerk. Sec. 1 5. The constable is required four days at least before the time when the 
 jurors are to attend, to summon each person who is drawn by reading to him the venire 
 with the endorsement thereon ofhis having been drawn, or by leaving at his place of abode 
 a written notification ofhis having been drawn, and also of the time and place of the sitting 
 of the court, at which he is to attend, and to make return of the venire, with his doings 
 thereon to the clerk before the opening of the court from which it was issued. lb. sec. 11. 
 For the method of selecting jurors in Pennsylvania, see Dunlop's Laws of Penn., p. 621, 
 et seq. 
 
 In Pennsylvania, the clerks of the several courts of oyer and terminer, quarter sessions, 
 and mayors courts are required, upon the order or precept of the rourt, or of two of the 
 judges thereof in vacation, to issue, according to the direction of such order, to the sheriff 
 and commissioners of the proper county, a writ or writs, commanding the sheriff and com- 
 missioners to empannel, and the sheriff to summon, a grand jury or petit jury, Or both. 
 Dunlop's Laws of Penn. p. 624. 
 
 The writ of venire for a petit jury, in Pennsylvania in any of the criminal courts must be 
 in the following form : — 
 
 County ss. 
 
 The Common wealth-of Pennsylvania, to the sheriff and commissioners of said county, greet- 
 ing :— 
 We command you, and every of you, that in your proper persons you draw from the 
 wheel (or the proper wheel, if there be several) containing the names of the persons selected, 
 
 according to law to be jurors in the courts of the said county (or in the court of the 
 
 city of as the case may be) the names of persons to be jurors in our court, 
 
 to be holden at in and for said county (or city) the day of — - at 
 
 o'clock, in the noon of that day : — And further, That you the said sheriff, do sum« 
 
 mon the persons whose names shall be so drawn, and every of them, to come before our 
 said court, at the same time and place, to make up the juries requisite for the trial of all 
 issues which may be then there depending for trial in our said court, and that you the said 
 sheriff, have then there this writ, and the names and surnames of the persons so summoned, 
 with the additions respectively, in a panel hereto annexed, and otherwise make return at 
 the day and place aforesaid, how you shall have executed this writ. Witness, J. B. &c, at 
 &c. See Dunlop's Laws of Penn. p. 625. 
 
 In Pennsylvania, the number of persons summoned andreturned as aforesaid to serve 
 as petit jurors, in any court of oyer and terminer cannot be less than forty-eight nor more 
 than eighty, and in any other court of criminal jurisdiction, not less than twenty-four nor 
 more than sixty. Dunlop's Laws of Penn. p. 626. 
 
 In Virginia, in a caso of felony in which a writ of venire facias is necessary, the writ 
 must command the officer charged with its execution to summon twenty-four persons, free- 
 holders of his county or corporation, residing remote from the place where the offence is 
 charged to have been committed and qualified in other respects to serve as jurors, to attend 
 the court in which the accused is to be tried, on the first day of the next term of the court, 
 or at such other time as the court may direct. If a person, summoned under such writ, fail 
 to attend as required without sufficient excuse he is subject to a fine of eight dollars. Code 
 of Ta. 1849, tit. 55, ch. 208, sec. 4. If a person accused of felony be not tried at the term 
 of a superior court to which he is remanded for trial, the clerk of the court is required, at 
 least twenty days before any subsequent term that the case remains pending to issue a venire 
 facias for his trial, returnable the first day of such term, or such other day as the court may 
 direct. lb. sec. 5. Any superior court in which a person accused of felony is to be tried, 
 may, at anytime, cause a venire facias to issue for his trial. lb. sec. 6. In a criminal case 
 in a superior court, if qualified jurors not exempt from serving, cannot be conveniently found 
 in the county or corporation in which the trial is to be, the court may cause so many as may 
 
JURORS IN BOROUGHS. 160 — 5 
 
 (e) Jurors in boroughs. 
 
 In boroughs within the Municipal Corporation Act, 5 & 6 "W. 4, c. 
 76, to which separate quarter sessions Save been or shall be given, 
 seven days at the least before the holding of every quarter sessions, the 
 clerk of the peace shall cause to be summoned a sufficient number of 
 persons, being qualified and liable as before mentioned(a) to serve as 
 grand jurors at every such sessions, and shall also cause to be 
 summoned not less than thirty-six nor *more than sixty per- [*161] 
 sons so qualified and liable to serve as jurors at every such ses- 
 sions. (J) The clerk of the peace shall make out a list of the grand 
 jurors, and a panel of the petty jurors, containing their names, places 
 of abode, and descriptions.(c)[l] 
 
 (a) Ante, p. 15T. (c) 5 & 6 W. 4, o. 16, s. 121. 
 
 (6) 5 & 6 W. i, c. 16, s. 121. 
 
 be necessary of such jurors to be summoned from any other county or corporation by the she- 
 riff or sergeant thereof, or by its own officer. lb. sec. 10. 
 
 For further information on this subject, see the statutes of the several states. 
 
 The New York Revised Statutes contain the following provisions: 
 
 Sec. 1. All issues of fact joined upon any indictment, shall be tried by a jury, in the county 
 where such indictment was found, unless for special causes the Supreme Court shall order' 
 an indictment removed into that court to be tried in some other county. 2 R. S. T33, sec. 1. 
 
 Sec. 2. Such trials shall be had by jurors drawn, summoned and returned in the manner 
 prescribed by law; and where any court of oyer and terminer shall be held at the same time 
 with any circuit court, the jurors returned for such circuit court shall be the jurors for such 
 oyer and terminer ; and the jurors returned for any court of common pleas, shall be the ju- 
 rors for the court of general sessions to be held at the same time. Id. sec. 2. 
 
 Sec. 3. When twenty-four jurors duly drawn and summoned, do not appear, or when, by 
 reason of there being one or more juries impannelled, or in consequence of jurors being set 
 aside, or for any other reason, and there shall not remain twenty-four ballots containing the 
 names of jurors then attending, the court shall order the sheriff to summon from the by- 
 standers or from the county at large, so many persons qualified to serve as jurors, as shall 
 be necessary to make at least twenty-four jurors, from whom a jury for the trial of the in- 
 dictment may be selected. Id. sec. 3. 
 
 Sec. 4. The names of the persons so summoned by the sheriff, shall be rolled or folded 
 each in the same manner as near as may be, and shall be deposited with the ballots un- 
 drawn, if any there be, or in a sufficient box by themselves, if there be no undrawn ballots, 
 from which a jury shall be drawn. 2 R. S. 134, sec. 4. 
 
 Sec. 5. In all other cases, the jury for the trial of any indictment, shall be drawn in the 
 same manner as prescribed by law, for the trial of issues of fact in civil cases. Id. sec. 5. 
 
 Sec. 6. Every person summoned by order of the court, as a juror, shall be liable to the 
 same penalties for disobedience or neglect as in civil cases, which shall be collected and ap- 
 plied in the same manner. Id. sec. 6. 
 
 Sec. 1. No alien shall be entitled to a jury of part aliens, for the trial of any indictment 
 whatever. Id. sec. 1. 
 
 [1] In New York, the statute provides that the supervisors of the several counties of this 
 state, except the city and county of New York, at their annual meetings in each year, shall 
 prepare a list of the names of three hundred persons, to serve as grand jurors at the courts 
 of oyer and terminer, and courts of general sessions, to be held in their respective counties 
 during the then ensuiDg year, and until new lists shall be raturned. 2 R. S. '720, sec. 1. 
 
X61 JURORS. 
 
 In preparing such lists, the said board of supervisors shall select such persons only as they 
 know, or have good reason to believe, are possessed of the -qualifications by law required of 
 persons to serve as jurors for the trial of issues of fact, and are of approved integrity, fair 
 character, sound judgment, and well-ijiformed. Id. sec. 3. 
 
 Persons exempt by law from serving as jurors for the trial of issues of fact, shall not be 
 placed on any list of grand jurors, required by the preceding provisions. Id. sec. 4. 
 
 The lists so made out by the said board of supervisors, shall contain the christian and sur- 
 names at length, of the persons named therein, their respective places of residence, and their 
 several occupations; it shall be certified by the clerk of the board of supervisors, and filed in 
 the office of the clerk of the county, within ten days after the first day of the meeting at 
 which the same is herein directed to be made. 2 R. S. 1 2 1, sec. 5. 
 
 On receiving such list, the county clerk shall write the names of the persons contained 
 therein, with their additions and places of residence, on separate pieces of paper, each in the 
 same manner as near as may be, so that the name written thereon shall not be visible ; and 
 shall deposit such pieces of paper in a sufficient box, from which they shall be drawn, as 
 hereinafter provided. Id. sec. 6. 
 
 If the county judges of any other county of this state, other than New York, pr any three 
 of them, shall at any time be of opinion that a greater number of persons than that herein 
 required, should be returned to serve as grand jurors in their county, they may, by an order 
 under their hands, direct such number to oe increased, but such increase shall not exceed 
 one-half the number herein required to be selected for such county. Id. sec 8. 
 
 Upon any order which is authorized by the last section being served upon the board of 
 supervisors, they shall, at their next annual meeting, increase the number of persons returned 
 by them to serve as grand jurors, pursuant to such order. Id. sec. 9. 
 
 At the time of drawing the names of jurors for the trial of issues of fact, in any court of 
 oyer and terminer, and at the time of drawing such jurors for any term of the court of com- 
 mon pleas of the county, at which a court of general sessions may by law be held, the county 
 clerk, in the presence and with the assistance of the sheriff or under sheriff, and of a county 
 judge or justice of the peace, or two county judges or justices of the peace, who shall have 
 attended for the purpose- of drawing the petit jury for such court, shall proceed and draw 
 the names of twenty-four persons, from the box in which the pieces of paper shall have been 
 deposited for that purpose, to serve as grand jurors at such court of oyer and terminer and 
 general sessions, as the case may be. Id. sec. 10. 
 
 Such drawing shall be conducted in all respects, in the manner prescribed by law, for 
 drawing petit jurors ; a minute of such drawing shall be kept, signed and filed in like man- 
 ner ■ and a list of the persons so drawn, with their additions and places of residence, and 
 specifying for what court they shall have been drawn, shall be made and certified by the 
 clerk and the attending officers, and shall be delivered to the sheriff of the county. 2 R. S. 
 
 "722, sec. 11. 
 
 The sheriff shall summon the persons named in such list, or attend such court as grand 
 jurors, at least six days previous to the sitting of such court, by giving personal notice to 
 each person, or by leaving a written notice at his place of residence, with some person of 
 proper age. He shall return such list to the court at the opening thereof, specifying those 
 who were summoned, and the manner in which each person was notified. Id. sec. 12. 
 
 The court to which any list of grand jurors so drawn, shall be returned by the sheriff, shall 
 impose a fine not exceeding twenty-five dollars, for each day that any person duly summoned 
 as a grand juror shall, without reasonable cause, neglect to attend. But if it appear that any 
 such person was notified, by leaving a written notice at his place of residence, the court 
 shall suspend such fine until the defaulting grand juror shall be notified as provided by law. 
 
 Id. sec. 13. 
 
 The court may discharge any person from serving as a grand juror, in the same cases in 
 which petit jurors may, by law, be discharged. Id. sec. 14. _ 
 
 When any person drawn as a grand juror shall not attend the court for which he was 
 drawn, or shall be excused for the term only, his name shall be returned into the box of 
 undrawn ballots for that year. Id. sec. 16. 
 
JURORS HOW RETURNED, SUMMONED, &c. 161 — 1 
 
 Where any person drawn as a grand juror shall have attended and performed his duty as 
 such at any court, the ballot containing his name shall be destroyed, and lie shall not be 
 again required to serve as a juror during the year for which his name was returned. Id. 
 sec. 16. 
 
 When any person drawn as a grand juror, shall be discharged by the court, or excused 
 from attending on account of any disqualification, or for any other cause not being of a tem- 
 porary nature, the ballot containing his name shall be destroyed. Ibid s. 17. 
 
 Sec. 16. When the same person shall be drawn as a grand juror and as a petit juror, to 
 attend the same court, his name shall be omitted from the list of petit jurors, and another 
 name shall be drawn from the box containing the names of persons returned as to serve as 
 petit jurors; and after the completion of the drawing of the petit jurors, the name of such 
 person drawn for the grand jury, shall be returned into the box containing the undrawn 
 names of petit jurors. Ibid s. 18. 
 
 If any new list of persons to serve as grand jurors, shall not be returned to the county 
 clerk, before he shall have completed the drawing of the grand jurors for any court, he shall 
 proceed to draw grand jurors in the manner herein provided, from- the box containing the 
 names of those already provided for that purpose, notwithstanding they may have been re- 
 turned for a year then expired, or which will expire before the term orsitting of the court for 
 which they shall be drawn; and such persons shall be summoned and shall serve in the 
 same manner, and be subject to the same penalties for neglect, as if such year had not ex- 
 pired. 2 Rev. Sts. 113, s. 19. 
 
 When it shall appear, upon the representation of a county clerk, that there are less than 
 fifty names remaining in the box containing the names, of persons returned to serve as grand" 
 jurors, any three judges of the county courts, may select from the citizens of the county 
 qualified to serve as grand jurors, and who shall not have served during the preceding twelve 
 months, the names of fifty persons to serve as grand jurors. Ibid sec. 20. 
 
 Such names shall be certified to the county clerk, who shall file such certificate in his office, 
 and shall cause such names to be written on distinct pieces of paper, and deposited in the 
 box containing any undrawn names of persons returned to serve as grand jurors, or if there 
 be none, then in a proper box; and from such box, in either case, the clerk shall draw a 
 grand jury to serve for any court of oyer and terminer or general sessions, to be. held im- 
 mediately after such drawing. Ibid. s. 21. 
 
 Such drawing shall be made at the time, and in the same manner, in all respects, as herein 
 provided in respect to persons returned by the supervisors, and the persons drawn shall be 
 summoned in like manner, and subject to the same penalties for neglect. Ibid s. 22. 
 
 If, at any court of oyer and terminer, or court of general sessions, there shall not appear 
 at least sixteen persons duly qualified to serve as grand jurors, who shall have been sum- 
 moned for that purpose, or if the number of grand jurors attending shall be reduced below 
 sixteen, by any of them being discharged, or otherwise, such court may, by an order to be 
 entered in its minutes, direct the sheriff of the county to summon the number of persons 
 necessary to complete the grand jury for such court. Ibid. s. 23, 
 
 The sheriff shall summon such persons accordingly, who shall be bound forthwith to attend 
 and serve, unless excused by the court, in the same manner and subject to the same penalties 
 for neglect as persons drawn by the county clerk, and summoned by the sheriff, as herein 
 provided. Ibid, s. 24. 
 
 It shall not be necessary for the judges of the county courts, or the justices of the peace of 
 any county, to issue any precept to the sheriff to summon any grand jury to any court of 
 general sessions, but the list of persons certified to be drawn for that purpose by the county 
 clerk, and the officers attending such drawing, shall authorize and make it the duty-of the 
 sheriff to summon and return such persons as grand jurors. 1 R. S. 724, sec. 25. 
 
 There shall not be more than twenty-three, or less than sixteen persons sworn on any 
 grand jury; and from the persons summoned to serve as grand jurors and appearing, the 
 court shall appoint a foreman, and they shall also appoint a foreman in every case where any 
 person already appointed shall be discharged or excused before the grand jury are dismissed. 
 Id, sec. 26. 
 
 57 
 
161—2 JURORS. 
 
 Members of the grand jury may be required by any court to testify whether the testimony 
 of a witness examined before such jury, is consistent with or different from, the evidence given 
 by such witness before such court; and they may also be required to disclose the testimony 
 given before them by any person, upon a complaint against such person for perjury, or upon 
 his trial for such offence; but in no case can a member of a grand jury be obliged or allowed 
 to testify or declare, in what manner he or any other member of the jury voted on a ques-- 
 tion before them, or what opinions were expressed by any juror, in relation to any such 
 question. Ibid s. 31. 
 
 Whenever required by the grand jury, it shall be the duty of the district attorney of the 
 county, to attend them for the purpose of examining witnesses in their presence, or of giving 
 them advice upon any legal matter; and to issue subpoenas and other process to bring up 
 witnesses. 2 R. S. 725, s 32. 
 
 The district attorney of the county shall be allowed at all times to appear before the grand 
 jury, on his request, for the purpose of giving information relative to any matter cognizable 
 by them ; and may be permitted to interrogate witnesses before them, when they shall deem 
 it necessary; but no district attorney, constable or any other person, except the grand jurors, 
 shall be permitted to be present during the expression of their opinions or thegiving of their 
 votes, upon any matter before them. Id. s. 33. 
 
 If any offence shall be committed during the sitting of any court of oyer and terminer or 
 court of general sessions, after the grand jury attending such court shall have been discharged, ' 
 such court may, in its discreting, by an order to be entered in its minutes, direct the sheriff 
 to summon another grand jury. Id. a. 34. 
 
 The sheriff shall, accordingly, forthwith summon such grand jury from the inhabitants of 
 the county, qualified to serve as petit jurors, who shall be returned and sworn, and shall 
 proceed in the same manner, in all respects, as provided by law in respect to other grand 
 juries. Id. sec. 35. 
 
 In Massachusetts all grand jurors shall be drawn, summoned, and returned in the same 
 manner as jurors for trials ; and whenever grand jurors shall be drawn at the same time with 
 jurors for trials, the persons, whose names are first drawn, to the number of grand jurors 
 required, shall be returned as grand jurors, and those afterwards drawn shall be the jurors 
 for trials. 
 
 In case of a deficiency of grand jurors in any court, writs of venire facias may be issued 
 to the constables of such towns as the court may direct, or, in the county of Suffolk, to the 
 constables of the city of Boston, to return forthwith such further number of grand jurors, as 
 may be required. 
 
 In Pennsylvania, the clerks of the several courts of oyer and terminer, quarter sessions, 
 and mayor's courts of this commonwealth shall, upon the order or precept of the said court, 
 or of two of the judges thereof, in vacation issue, according to the direction of suoh order, to 
 the sheriff and commissioners of the proper county, a writ or writs, commanding the said 
 sheriff and commissioners to empanel, and the said sheriff to summon a grand jury or petit 
 jury, or both, to inquire of or try all causes and matters which may be depending in the said 
 court, and given to them in charge at the term thereof, to be holden next after the date of 
 the said precept. 
 
 The writ of venire for a grand jury in any of the said courts, shall be made according to 
 the following form, to wit : 
 
 County, ss. 
 
 The Commonwealth of Pennsylvania, to the sheriff and commissioners of the said county, 
 greeting : < 
 
 "We command you and every of you, that in your proper person you draw from the wheel, 
 (or from the proper wheel, if there be several) containing the names of the persons selected 
 
 for jurors according to law, the names of twenty four persons to be grand jurors in our 
 
 court (describing the court,) to be holden at in and for the said county, on the 
 
 day of at o'clock in the noon of that day : And further, that you, 
 
 the said sheriff, do summon the persons whose names shall be so drawn, and erery of them, 
 to come before our said court at the said time and place, to inquire of and perform all those 
 
JURORS HOW RETURNED, SUMMONED, &0. 161—3 
 
 things, which on our part shall be enjoined upon them ; and that you, the said sheriff, have 
 then and there this writ, and the names and surnames of the persons so summoned, with 
 their additions respectively, in a panel hereto annexed, and otherwise make return at tho 
 day and place aforesaid, how you shall have executed this writ. "Witness (J. B.) at, &c. 
 
 It shall be lawful for the judges of the court of quarter sessions to award one writ in the 
 form aforesaid for the summoning and returning a grand jury in the said court, and in a court 
 of oyer and terminer to be holden by them at the same time, and if distinct writs of venire 
 shall in such case be awarded, it shall be the duty of the said judges to order the sheriff and 
 commissioners of the respective county to annex and return one and the same panel to each 
 of the said writs. 
 
 In Georgia the statute is as follows: It shall be the duty of the justices of the inferior 
 courts of each county, together with the sheriff and clerk, or a majority of them, to convene 
 at the court-house of their respective counties, on the first Monday in June next, and bien- 
 nially on the first Monday in June thereafter, whose duty it shall be to select from the books 
 of the receiver of tax returns, for their respective counties, fit and proper persons to serve as 
 grand jurors ; and shall make a list of persons as selected, and transmit it under their bands 
 to the next superior court of their respective counties ; and it shall be the duty of the judge 
 then presiding, to cause the clerk of the said superior court to make out tickets, with the 
 names of the persons so selected, which tickets shall be put in a box to be provided by the 
 clerk at the public expense, which said box shall have two apartments, marked number one 
 and two ; and the clerks of said courts shall, immediately after receiving such lists, fairly 
 enter the same in a book for that purpose, to be provided at his own expense, distinguishing 
 in separate columns the persons liable to serve as grand jurors, and those for the trial of 
 civil and criminal causes, as pointed out by law ; which said box shall be locked and sealed 
 up by the judge, and placed in the care of the clerk, and the key in the care of the sheriff, 
 and no grand jury shall be drawn and empannelled but in the presence of the judge in open 
 court, nor shall any clerk of the court, or other person having the custody of the jury box, 
 presume, on any pretence whatever, to open the said jury box, transpose or alter the names, 
 except it be by the direction of the judge in open court, attending for the purpose of drawing 
 jurors, under the penalty of being dealt with in the manner pointed out by law for malprac- 
 tice in office. 
 
 The said judge in open court shall unlock and break the seal, and cause to be drawn out 
 of the apartment of the said box, marked number one, not less than twenty-three, nor more 
 than thirty-six names, to serve as grand jurors, which names so drawn out, shall, after an 
 account is taken of them, at each time of drawing, be carefully deposited in the other apart- 
 ment of such box, marked number two ; and when all the names shall be drawn out of the 
 apartment number one as aforesaid, they shall then commence drawing from the apartment 
 number two, and return them into number one, and so on alternately; but no name so 
 deposited shall, on any pretence whatever, be destroyed, except it is within the knowledge 
 of the judge that the said juror is either dead, removed out of the county, or otherwise dis- 
 qualified by law, or the sheriff certify the same. Sec. 11 of R. S. 
 
 In Vermont the revised statutes, (chapters 15 and 35,) provide: At the annual meeting 
 in each town, such of the board of civil authority as may be present, shall agree upon such 
 number of grand and petit jurors as they shall judge will be the proportion of such town, to 
 attend the county court for the year ensuing, which number shall be nominated by said 
 board, and chosen by the inhabitants present at such meeting. 
 
 The town clerk shall write, on separate pieces of paper, the name of each person, so chosen 
 and put them into appropriate boxes, to be kept in his office, to be drawn by the sheriff, as 
 provided bylaw. Sec. 72 of R. S. 
 
 Previous to the stated term of each county court to be held next after the last day of 
 April in each year, the clerk of such court shall seasonably issue and deliver to the sheriff 
 of the county, or his deputy, a venire, commanding such officer to summon eighteen judicious 
 men, [being freeholders,] (see § 14 of chap. 15) within such county, from the several towns 
 in such county, as the judges of such court shall direct, to appear before such court at nine 
 
161 — 4. JURORS. 
 
 (/) Grand jury called, sworn, and charged. 
 
 The clerk of arraigns at the assizes, or the clerk of the peace at the 
 sessions, calls over the names of the grand jurors. This is the first 
 business done at the sitting of the court. As each juror answers, he 
 goes into the jury box. The number must be at least twelve,(a) and 
 must not exceed twenty-three.(i)[2] They are sworn in this form ; 
 
 (a) See 2 Hale, 16L (&) 2 Burr. 10.88. 
 
 o'clock, forenoon, on the first day of the term, to serve as grand jurors in such court. Sec. 
 1 ofR. S. 
 
 The grand jury in said county, instead of being summoned to appear at the county court 
 next after the last day of April, as now by law provided, shall be summoned to appear at 
 the court to be holrlen next after the last day of August in each year. No. 2 of 1849. 
 
 The judges of the county court, in each county, shall from time to time direct the clerk of 
 such court, from what towns the grand and petit jurors shall be summoned, and the number 
 from each town. Sec. 3, of R. S. 
 
 Any county court, or either of the judges thereof, may make a special order requiring a 
 grand jury to be summoned to attend any term of the said court, and it shall be the duty of 
 the clerk of such court, on receiving such order, to issue.a venire accordingly. Sec. 4, of R. S. 
 
 The sheriff or his deputy, on receiving a venire for a grand or petit jury, shall repair to 
 the office of the town clerk in each town mentioned in the venire and in the presence of 
 such town clerk or one of the selectmen of such town, draw out of the box, containing the 
 names of the persons nominated by the authority of such town to serve as grand or petit 
 jurors, as the case may be, the number of names he is required to summon from such town. 
 Sec. 5, ofR. S. 
 
 And such officer shall summon the persons so drawn, not less than seven nor more than , 
 fifteen days before the term of such court, by reading the venire in their hearing and notify- 
 ing them respectively of their being drawn to serve as jurors, agreeably to the precept of 
 such venire, or by leaving a copy of the venire with such notice endorsed thereon as is 
 directed in the service of writs of summons. Sec. 6, of R. S. 
 
 The officer serving a venire shall return the same, with the names of the persons summoned 
 endorsed thereon, to the clerk who issued the same, before the first day of the term of such 
 court. Sec. 8, of R. S. 
 
 If all the persons summoned to attend any county court, to serve as grand jurors, shall not 
 appear at the time stated in the venire, the court may order the sheriff or other officer to 
 summon, immediately, a sufficient number of judicious men, [being freeholders] (see § 14, of 
 chap. 15,) of such county, to fill up the panel. Sec. 13, of R. S. 
 
 In Virginia, the statute (Code of Va. 1 849, ch. 208, sees. 4 and 5,) provides that : For every 
 grand jury there shall be summoned twenty-four citizens of this state, who are freeholders of 
 the county or corporation in which tho court is to be held, and in other respects qualified 
 jurors, and not constables, ordinary keepers, surveyors of roads, nor owners nor occupiers of 
 water grist mills ; and when they are grand jurors for a county court, not inhabitants of a 
 town having a corporation court. 
 
 Any sixteen or more of sdeh persons shall be a competent grand jury. If a sufficient 
 number do not attend, tho said officer shall forthwith summon so many others as may be 
 necessary. 
 
 [2] The number of grand jurors required by statute in the several states, is very different. 
 
 In New York the revised statutes provide that not more than twenty-three, nor less than 
 sixteen, shall bo sworn on tho grand jury. No indictment can be found without the concur- 
 rence of at least twelve grand jurors. But if twelve agree, it is sufficient, though the rest 
 dissent. 2 N. Y. Rev. Stat. 124, 723, sees. 26, 36. The number of grand jurors required 
 by statute in Wisconsin is tho same as in New York. Rev. Stat, of Wis. ch. 07, sec. 12. 
 
GRAND JURY CALLED, SWORN AND CHARGED. 161 — 5 
 
 and first the foreman, thus : — " You, as foreman of this inquest, shall 
 diligently inquire and true presentment make of all such matters and 
 things as shall be given you in charge. The Queen's counsel, your fel- 
 lows' and your own, you shall keep secret. You shall present no man 
 for envy, hatred, or malice ; neither shall you leave any man unpre- 
 sented for fear, favor, or affection, or hope of reward ; but you shall 
 present all things truly, as they come to your knowledge, according to 
 the best of your understanding : So help you God." The remaining 
 jurors are then sworn thus : ' " The same oath which your foreman has 
 taken upon his part, you and every of you shall well and truly observe 
 and keep on your parts: So help yon God." [3] 
 
 In Massachusetts twenty-three grand jurors, are to be returned to the court of common 
 pleas for every county, except the county of Suffolk seven days at least, and not more than 
 thirty days before the commencement of the first term of the court in each year, to serve at 
 each term of the court throughout the year, except that -in the counties where the terms of 
 the court are established for the transaction of criminal business, the grand jurors are re- 
 quired to attend only at such terms. Rev. Stat, of Mass. ch. 136, sec. 1. By the common 
 law a grand jury may consist of thirteen or of any greater number not exceeding twenty- 
 three. .The statute of Massachusetts makes no provision relative to the number, necessary 
 to form a qnoTum, but leaves that to the rule of the common law. It cannot therefore con- 
 sist ofless than thirteen. Com. v. Wood, 2 Cushing Rep. 149. 
 
 In Pennsylvania, the number of grand jurors must be twenty-four. Dunlop's Laws of 
 Penn. page 625, sec. 109. In Ohio, the number is fifteen, and the concurrence of twelve, is 
 necessary to find the bill true. Rev. Stat, of Ohio, ch. 64, sec. 12. In Maryland twenty- 
 three. Dorsey's Laws of Maryland, p. 350, sec. 8. In Michigan, not less than sixteen, and 
 no indictment can be found without the concurrence of at least twelve. Rev. Stat, of Mich, 
 tit. 31, ch. 164, sec. 5; lb. sec. 17. In Virginia, sixteen persons are a competent grand 
 jury. Code of Va. of 1849, ch 207, sees. 4 and 5. In Mississippi not less than thirteen nor 
 more than eighteen. Hutchinson's Mississippi Code, p. 887. In Georgia not less than eigh- 
 teen nor more than twenty three ; but twelve may find a bill or make a presentment. 
 Hotchkiss' Stat. Law of Geo. p 579. In Iowa, fifteen, and they are to serve one entire year 
 after their selection. Code of Iowa, tit. 18, eh. 96. In Vermont, no bill of indictment can 
 be presented by a grand jury unless twelve of the jurors agree in the same. Rev. Stat, of 
 Verm. ch. 35, sec. 17. In Arkansas, a grand jury must consist of sixteen legally qualified 
 men ; and an indictment found by less number, will be illegal, and the statute providing 
 that an indictment may be found by a concurrence of not less than twelve of the grand 
 jury, does not dispense with the necessity of there being sixteen grand jurors on the panel 
 The State v. Hawkins, 5 Engl. Rep. 71. 
 
 In the state of Now York tiie Revised Statutes provide that, -if from any cause whatever 
 the number of the grand jurors shall subsequently be reduced below sixteen it shall be the 
 duty of the clerk to make the following entry in his mmutes, a copy of which is served upon 
 the sheriff of the city and county of New York, and returnable either instanter or at any 
 subsequent time named by the court. 2 N. Y. Rev. Sts. 723, sec. 23. 
 At a court of oyer and terminer or general sessions of the peace, [as the case may be,] holden 
 
 in and for the city and county of New-York, at the city Hall of the said city, on the 
 
 • day of in the year of our Lord one thousand eight hundred and thirty 
 
 Present. — The honorable , of the city of New- York, and , Aldermen of the 
 
 said city, justices of sessions. 
 
 The number of grand jurors, attending this court being reduced below sixteen, by . 
 
 It is ordered, that the sheriff of the city and county of New- York be, and he is hereby di- 
 rected to summon persons, the number necessary to complete the grand jury for this 
 
 court. Extract from the Minutes. 
 
 [3] The form of oath given in the text, is used substantially in the several states. See Rev. 
 
161 — 6 JURORS. 
 
 The usual proclamation against vice and profaneness is then made. 
 Then the proclamation is made for silence, whilst the charge is deliv- 
 ered to the grand jury. 
 
 The judge at she assizes, or the chairman at the quarter sessions, 
 then charges the grand jury. After which the grand jury retire to their 
 room, to consider such bills of indictment as may be brought before 
 them ; and from time to time return them into court, as has been already 
 mentioned.(a)[4] 
 
 (a) Ante, pp. 98, 99. 
 
 Sts. of Mass. Ch. 136, sec. 5; Rev. Sts. of Maine oh. 112, sec. 2; Rev. Sts. of Ohio eh. 64, 
 sees. 11 and 12. Rev. Sts. of Mich. ch. 164, sees. 2 and 3 ; Hotehkiss' Stat. Laws of Geo. 
 582 ; Hutchinson's Mississippi Code 818; Rev. Sts. of Wisconsin, ch. 97, sec. 16 ; Code of 
 Iowa, 1851, ch. 166, sees. 2892, 2893. 
 
 In Virginia, the form of oath prescribed by statute, (Rev. Code of Va. 1849, ch. 206, sec. 
 6,) is as follows: " You shall diligently inquire and true presentment make of all such matters 
 as may lie given you in charge or come to your knowledge touching the present service. Ton shall 
 present no person through ill will, nor leave any unpresented through fear or favor, hut in all 
 your presentments you shall present the truth, the whole truth, and nothing hut the truth. So help 
 you God." The other grand jurors shall afterwards be sworn as follows : " The same oath 
 that your foreman has taken on his part, you and each of you shall observe and keep on your part. 
 So help you God." 
 
 The form of the oath administered to grand jurors is of ancient origin and should be sub- 
 stantially observed. Brown v. The State, 5 Engl, Rep. 607. 
 
 After the grand jurors are all duly sworn and affirmed, the crier makes the following , pro- 
 clamation : 
 
 Hear ye, &c. : All persons are enjoined and strictly commanded to keep silence, on pain 
 of imprisonment, while the court charge the grand jury. 
 
 In charging the grand jury, the court are directed by law to call their attention to offences, 
 against the election laws, (I R. S. 155 ;) to violations of the laws against lotteries, (1 R S. pt. 
 l°c 20;) not to disclose the fact of an indictment being found against any individual for a 
 felony, until the defendant in such indictment shall have been arrested thereon, (2 R. S. 812 ;) 
 and to violations of law by public officers, in demanding, charging or receiving fees to which 
 they are not entitled by law. Laws of 1 845, u. 455. 
 
 In Ohio, the act against betting at elections is to be specially given in charge of the 
 grand jury, at each term of the court of common pleas, by the presiding judge, (R. S. c. 35, s. 
 1 24 ■) also the act to preserve the purity of elections, (Law passed March 20,- 1841 ;) also, as 
 to unauthorized bank paper, &c, (R. a of Ohio, 137, 141 ;) as to taverns, *c., (ib. 900 ;) as to 
 ferries, (ib. 415 ;) as to gaming and gambling, (ib. 429 ;) as to duties of supervisors of roads, 
 &c (ib. 813:) as to auctions and auctioneers. Ib. 104. 
 
 In Michigan, the grand jury are to be charged in relation to the violation of the election 
 laws, (R. S. 101 ;) and to bo specially charged in relation to trespasses on public lands. Ib. 
 246, 217. 
 
 In Virginia, the grand jury are to be charged, in a county or corporation court, by ttie 
 prosecution attorney. Code of Va. of 1849, l-. 206, s. 7. 
 
 [4] Justice Blackstone, in speaking of a grand jury, says, that they are usually gentlemen 
 of the first figure in the county. Mr. Livingston, in speaking of the same subject, in his 
 Criminal Code, says that they consist of a body of men taken at stated periods from the mass 
 of citizens, to perform a most important function in the administration or justice. It is their 
 duty to protect the innocent from accusation, and to discover and bring the guilty to trial 
 They have no political, nor any other civil powers, and they must confine their deliberations 
 
GRAND JURY CALLED, SWORN AND CHARGED. 161 — 7 
 
 The prisoners against whom bills are found, are then arraigned, and 
 plead, as mentioned ;(a) and their cases are then ready for trial. 
 
 (a) Ante, p. 108. 
 
 to the question whether there has been an infraction of the law, and who has been the offen- 
 der. And in New York, it is provided by statute, that in preparing lists of grand jurors, 
 the board of supervisors shall select such persons only as they know, or have good reason 
 to believe, are possessed of the qualifications by law required to serve as jurors for the trial 
 of issues of fact, and are of approved integrity, sound judgment and well informed. 2 R. S. 
 720, s. 3. 
 
 In New York, Vermont, and Mississippi, the foreman of the grand jury is appointed by 
 the court. 2 N. Y. Rev. Stat. p. 810, s. 26 ;• Hutchinson's Miss. Code, 878; R. S. of Term. 
 c. 35, s. 16. In Maine, Massachusetts, and Michigan, the jury, after the retire, elect one of 
 their number to be foreman. R. S. of Maine, c. 172, sec. 4; R. S. of Mass. c. 136, s. 7 ; R. S. 
 of Mich. c. 164, s. 5. 
 
 In New York and New Jersey, the foreman of the grand jury is authorized to administer 
 the oath to the witnesses who appear before the grand jury. 2 N. Y. Rev. Stat. p. 724, s. 29 ; 
 R. S. of N. J. tit. 34, c. 13, s. 3. In Pennsylvania, " the foreman of a grand jury, or any mem- 
 ber thereof, is authorized and empowered to administer the requisite oaths or affirmations to 
 any witness or witnesses whose names may be marked by the attorney general on the bills 
 of indictment. Dunlop's Laws of Pennsylvania, p. 453. In Maine, Massachusetts and Michi- 
 gan, the foreman, attorney-general or prosecuting attorney, has power to swear the witnesses 
 before the grand jury. R. S. of Maine, c. 172, s. 6 ; R. S. of Mass. c. 136, s. 9 ; R. S. of Mich. 
 c. 164, s. 9. 
 
 Every grand jury may appoint one of their number to be a clerk thereof, to preserve mi- 
 nutes of their proceedings, and of the evidence given before them, which minutes shall be 
 delivered to the district attorney of the county when so directed by the grand jury. 2 N. 
 Y. Rev. Stat. 724, s. 30; R. S. Maine, c. 172, s. 8; R. S. of Mass. c. 136, s. 10; R.S.ofMich. 
 c. 164, s. 10. 
 
 In New York, the statute provides that no grand juror, constable, district attorney, clerk, 
 or judge of any court, shall disclose the fact of an indictment having been found against any 
 person, for a felony, not in actual confinement, until the defendant in such indictment, shall 
 have been arrested thereon ; every person violating this provision, shall be deemed guilty of a 
 misdemeanor. 2 R. S. p. 726, s. 30. And there is substantially the same provision in the 
 revised statutes of Maine, Massachusetts and Michigan. R. S. of Maine, c. 172, o. 10; R. S. 
 of Mass. c. 136, a. 12; R. S. of Term. o. 164, s. 12. 
 
 In New York, the statute provides that deliberations of a grand jury shall be private. The 
 district attorney of the county shall be allowed at all times to appear before the grand jury, 
 on his request, for the purpose of giving information relative to any matter cognizable by 
 them; and may be permitted to interrogate witnesses before them, when they shall deem it 
 necessary ; but no district attorney, constable, or any other person except the grand jurors 
 shall be permitted to be present during the expression of their opinions, or the giving of 
 their votes, upon any matter before them. 2 R. S. 725, s. 33. 
 
 And in like manner, such persons as may be sent for or appear as witnesses, may come 
 to make complaint or give information in relation to the breach of any law. Every one an- 
 nouncing himself as complainant or informant against such breach of the law, must be ad- 
 mitted and heard at any suoh time as the grand jury will permit. 
 
 Subpoenas for witnesses in support of any prosecution, may be issued and signed by the 
 district attorney, without the seal of the court. And the attendance of such witnesses may 
 be compelled in the same manner as in civil causes. 2 N. Y. Rev. Stat, 729, a. 63, 64. 
 
 The witnesses being called in, are examined (on oath) by the grand jury, or with their 
 consent by the district attorney. 3 Chit. Burn, 354; Mat. Dig. 281. The grand jury should 
 require the same evidence, written and parol, as may be neoessary to support the indictment 
 at the trial. They are not, however, usually very strict as to the documentary evidence • 
 
161—8 JURORS. 
 
 they often admit copies where the originals alone are evidence ; and sometimes even evi- 
 dence by parol of a matter which should be proved by written evidence. But as they may, 
 and in general should, iusist on the same strictness.of proof as must be observed at the trial, 
 it is prudent in all cases to be provided, at the time the bill is preferred, with the same evi- 
 dence with which it is intended afterwards to support the indictment. Arch. Cr. PI. 63. 
 
 It seems that the defendant has no right to have a counsel or attorney, or any person 
 skilled in the law, present before the grand jury as an advocate on his behalf; it being only 
 a preliminary investigation, and not conclusive on him. 1 Barn. & Cress. 37, 51 ; 10 id. 237. 
 
 In New York, the statute provides that members of the grand jury may be required, by 
 any court, to testify whether the testimony of a witness examined before such jury, is con- 
 sistent with or different from the evidence given by such witness before such court ; and 
 they may also be required to disclose the testimony given before them by any person upon 
 a complaint against such person for perjury, or upon his trial for such offence ; but in no 
 case can a member of a grand jury be obliged or allowed to testify or declare, in what man- 
 ner he or any other member of the grand jury voted on any question before them, or what 
 opinions were expressed by any jurors, in relation to any question. 2 N. T. Rev. Stat. 724, 
 sec. 31. 
 
 Whenever required by the grand jury, it shall be the duty of the district attorney of the 
 county to attend them for the purpose of examining witnesses in their presence, or of giv- 
 ing them advice upon any legal matter, and to issue subpoenas and other process to bring 
 up witnesses. 2 R. S. 725, s. 32. 
 
 The grand jury are to proceed in the following order : 
 
 The calendars are to be read and taken up for consideration. 
 
 The causes of those who are in custody, beginning with the highest in degree. The in- 
 dictments sent in by the public prosecutor shall then be read, together with the examina- 
 tions and other documents returned by the magistrates. . The witnesses shall then be exam- 
 ined, and if any member requires the advice of the public prosecutor, he may be called, heard, 
 and after he has retired the foreman shall again read the indictments, and put the following 
 questions to the jury : 
 
 1. "Whether the offence stated in the indictment has been committed. 
 
 2. "Whether it was committed by the person accused in the indictment. 
 
 Each of these questions shall be debated and decided separately, and on each the jury 
 may, with the assent of twelve members, make any amendments or alterations in the indict- 
 ment, either in the description and circumstances of the offence, according to their view of 
 the testimony and law, or in the name or description of the offender,, if another person than 
 the accused in the indictment appears to have committed the offence. 
 
 If both the questions above stated are decided in the affirmative by twelve jurors, the 
 indictment shall then be signed by the foreman, adding to his name the quality in which he 
 signs. "When thus signed, the indictment is said to be found. 
 
 In cases where the public prosecutor has not sent an indictment, the grand jury, after 
 hearing the testimony, shall in like manner decide, 1. "Whether an offence has been commit- 
 ted, and what that offence is ; and. 2. "Who is the offender. And if it result from the de- 
 cision of these questions, that twelve jurors are of opinion that any designated person has 
 been guilty of an offence, the clerk shall certify that there is matter for accusation against 
 the person (naming him) for such an offence (specifying it,) and shall deliver such certificate 
 with a minute of the evidence to the public prosecutor, who shall immediately send an in- 
 dictment to the grand jury, conformable to the fact and the law, which indictment, beforo it 
 can have any force, must be found in the manner above directed. 
 
 If the grand jury decide that they have not sufficient evidence, either that the offence was 
 committed, or that it was committed by the person accused (whether this decision be made 
 on an indictment or under the last preceding clause, where no indictment has been present- 
 ed,) it is the practice to indorse " ignoramus." 
 
 The grand jury have a right to ask the instruction and opinion of the court, on any point 
 of law on which they may be dissatisfied with the opinion of the public prosecutor. In order 
 to obtain such instruction, the grand jury shall come into court, and if the matter on which 
 
PETTY JURY CALLED AND SWORN. 161 — 9 
 
 (g) Petty jury called and sworn. 
 
 The petty jurors are called, and the first twelve who answer to their 
 names usually go into the jury box. [5] On the first day of the assizes 
 
 they desire to obtain information requires secrecy, the foreman shall so state to the judge, 
 and thereupon the judge shall give his opinion and instructions thereon. After hearing 
 which, the said grand jury shall retire to their chamber to deliberate. 
 
 The grand jury are confined in their examinations, to the witnesses on the side of the 
 state, but still the result of their examinations ought to enure as well for the benefit of the 
 defendant as of the state, because the state is not less interested in the protection of the in- 
 nocent than in bringing the guilty to trial. 
 
 The object of a grand jury being to reach the truth as to the innocence or guilt of the party 
 accused, they have a right to examine any and every person who may be able to throw light 
 upon the subject, saving and excepting the defendant himself. 
 
 The foreman of the grand jury should endorse each indictment "a true bill," and sign his 
 name as foreman; but it is not necessary that the name should be copied into the indict- 
 ment. Gardner v. People, 3 Scam. 83. An indorsement by the foreman over his signature, 
 on the back of the bill, of the words '■ true bill," is sufficient without the prefix of the arti- 
 cle " a". The State v. Davidson, 12 Term. Rep. 300. 
 
 Held, in New Hampshire, that indictments found by a grand jury, must be signed by the 
 foreman, and be thus returned into court in the presence of the jury. The State v. Squire, 10 
 N. Hamp. Rep. 558. 
 
 In Virginia, where a trial had been commenced, and. it was then discovered that the in- 
 dictment was not signed by the foreman of the grand jury, it was held that no further pro- 
 ceedings could be had on it, although the counsel "were willing t6 proceed. Com. v. Sargent, 
 Thacker's Crim. Cas. 116. 
 
 Held, in Kentucky, that it is not material whereabouts in the indictment the signature of 
 the foreman of the jury is placed. Overshiner v. Corn., 2 B. Mon. Rep. 244. 
 
 When the grand jury come into court with bills of indictment, it becomes the duty of the 
 clerk to call over their names requesting them to answer. The foreman then delivers to the 
 court the bills. The court after examining them, directs the grand jury to proceed with 
 public business — or if they have finished-the business before them, they are discharged by 
 the court. 
 
 OF PROCESS UPON AN INDICTMENT. 
 
 In the state of New York, a process is issued under the provisions of the statute which 
 directs that, " a warrant for the arrest of any defendant indicted, may be issued by the court 
 to which such indictment shall be presented, or by any justice of the supreme court, any cir- 
 cuit judge, or judge of the county courts of the county in which such indictment shall be 
 found, either in vacation or during the sitting of any such court; but such warrant shall not 
 be issued by any other officer. 2 Rev. Sts. 728, sec. 65. 
 
 After the grand jury have found the indictment, it becomes the duty of the clerk to arraign 
 the prisoner ; directing those who are indicted for felonies to hold up their right hands. If 
 the indictment is for a capital offence he reads the indictment at length : in other cases, he 
 briefly states the substance thereof, and then asks the prisoner if he demands a trial upon 
 this indictment ; if he answers " yes " — the clerk records a plea of not guilty. 2 Rev. Sts. 
 730, sec. 70; Rev. Sts. of Mass. ch. 136, sees. 128, 129; Rev. Sts. of Mich. ch. 164, sec 134; 
 Rev. Sts. of Maine, ch. 172, sec; 18 ; Hotchkiss' Stat. Law of Georgia, p. 790 ; Code of Va. 
 of 1849, ch. 208; Code of Iowa, of 1851, ch. 170, sec. 2931. 
 
 [5] The judges having taken their seats, order the court to be opened. The crier then pro- 
 claims with a loud voice, " silence ! while I proclaim the orders of the court ; " which is done 
 in the following manner : 
 
 Hear ye — Hear ye — Hear ye. — All persons having business at this edurt of general sessions 
 
 58 
 
161—10 JURORS. 
 
 or sessions, the whole list of jurors is usually called over, as soon as the 
 grand jury are charged and have retired. And by stat. 6 Gr. 4, c. 50, 
 
 of the peace, held in and for the city and county of New York, draw near and give your 
 attendance and you shall be heard. 
 
 The court is now opened. 
 
 The same proclamation is made every day during the session of the court. 
 
 After the opening of the court the crier makes the following proclamations : 
 
 Hear ye, &c. All justices of the peace, mayors, recorders, sheriffs, coroners and other 
 officers, who have taken any inquisition or recognizance whereby you have let any person 
 to bail, put the record thereof forth with into court, that the justices of the people now here 
 may proceed thereon. 
 
 Hear ye, Ac. The sheriff of the city and county of New. York, is hereby directed forth- 
 with to return the panels of grand and petit jurors to serve at this court, that the justices 
 present may proceed thereon. 
 
 Hear ye, &c. The sheriff of the city and county of New York is hereby directed forth- 
 with to return the precept for summoning the grand jury to him directed and delivered, and 
 returnable here this day, that the justices present may proceed thereon. 
 
 Hear ye, &c. You good men and true, here returned as grand jurors in and for the body 
 of the city and county of New York, answer to your names every one at the first call and 
 save your fines. 
 
 It is usual for the officers referred to in the preceding proclamations to make their returns 
 some time anterior to the commencement of the term. 
 
 After the crier has made the aforegoing proclamations according to law, the clerk gives 
 notice, that those gentlemen having excuses to offer, will come up before the court, as their 
 names are called. 
 
 Those having excuses to offer are sworn by the clerk according to the following forms : 
 
 You do solemnly swear, that you will true answers make to such questions as shall be put 
 to you by the court touching your excuse for not serving as a grand juror, so help you God. 
 
 [or] 
 
 You do swear in the presence of the ever living God, &c, (omitting the words, "so help 
 you God.") 
 
 [or] 
 
 You do solemnly, sincerely, and truly declare and affirm, &c, (omitting the words, " so 
 help you God.") 
 
 CHALLENGE TO GRAND JURY. 
 
 There exists the same right of challenging for favor to the grand jury as the petit jury. A 
 person held to answer to any criminal charge, may object to the competency of any one sum- 
 moned to serve as a grand juror before be is sworn ; on the ground that he is the prosecutor 
 or complainant upon any charge against such person, or that he is a witness on the part of 
 such prosecution, and has been subpoenaed or been bound in a recognizance as such ; and if 
 such objection be established, the person so summoned shall be set aside. 2 N. Y. R. S. 
 724, b. 27. 
 
 No challenge to the array of grand jurors, or to any person summoned to serve as a grand 
 juror, shall be allowed in any other cases than such as are specified in the last section. Ibid, 
 s. 28. 
 
 A challenge to the array will not be allowed on the ground that in the selection of grand 
 jurors, all persons belonging to a particular fraternity or association (in this case free-masonry) 
 were excluded, if those who are returned are unexceptionable, and possess the qualifications 
 required by statute. 3 Wend. R 314. 
 
 It is a good cause of exception to a grand juror, that he has formed and expressed an 
 opinion as to the guilt of a party whose case probably will be presented to the consideration 
 of the grand jnry j so also a grand juror's having evinced feelings of hostility towards such 
 
PETTY JURY CALLED AND SWORN. 161 — 11 
 
 s. 38, if any man summoned to attend upon a jury, shall not attend in 
 pursuance of such summons, — or being thrice called shall not answer 
 to his name, — or if he be present but do not appear, — or if after ap- 
 pearing he wilfully withdraw himself from the presence of the court : 
 the court shall set such fine upon him as it shall think meet 
 unless some reasonable excuse *for the default shall be made [*162] 
 by oath or affidavit. The stat. 5 & 6 "W". 4, c. 76, s. 121, as to, 
 jurors at the quarter sessions in boroughs, contains a similar enactment 
 with this. addition, that if the fine be not paid, the court shall make an 
 order that the same may be levied by distress and sale of the party's 
 goods. [1] 
 
 If there have been a view, those jurors who have had the view, are 
 first called. It must be observed, however, that a view can be had in 
 a criminal case, only where the indictment is pending in the court of 
 Queen's Bench,(a) or with the consent of the opposite party. (b) But in 
 one case, in the Crown Court- at the Assizes, where the defendant wished 
 the jury to view the place where the offence (rape) was said to have 
 been committed, which was in the immediate vicinity of the court, the 
 judge allowed the jury to have a view, although the counsel for the 
 prosecution did not consent.(c) In all cases where a view is necessary, 
 if the opposite party consent, a rule for it or a judge's order in vacation 
 
 (a) 6 G. 4, o. 50, a. 23. (c) See S. v. Whalley, 2 Car. & K. 376. 
 
 (6) See R. v.' WhaUey, 2 Car. & K. 316. 
 
 party, is good cause of exception. But these exceptions must be taken before the indictment 
 is found, and will not afterwards be heard. 2 Rev. Sts. 124, sec. 21. 
 
 In Michigan, a person held to answer to any criminal charge, may object to the competency 
 of any one summoned to serve as a grand juror, on the ground that he is the prosecutor or 
 complainant upon any charge against such person ; and if such objection be established the 
 person so summoned, must be set aside. Rev. Sts. of Mich. ch. 164, sec. 1. No challenge 
 to the grand jury, is allowed in any other case. lb. sec. 8. 
 
 See Rev. Sts. of New Jersey, tit. 34, ch. 13, sec. 2; Hutchinson's Mississippi Code, page 
 888. 
 
 CALLING THE PETIT JUEY. 
 
 The clerk if requested by the counsel for the prisoner, calls the whole panel of the jurors. 
 
 After which the crier makes the following proclamation: 
 
 Hear ye, &c. You good men and true, here returned to inquire between the people of the 
 state of New York and A. B., the prisoner at the bar, answer to your names, every one at 
 the first call, and save your fines. 
 
 The clerk then, generally draws the ballots, — as he draws them, calling their names. 
 
 [1] In Massachusetts, the court is authorized by statute to impose a fine upon a juror for 
 neglecting to attend, not exceeding forty dollars. Rev. Sts. of Mass. ch. 95, sec. 19. In Maine 
 and Michigan the fine must not exceed twenty dollars. Rev. Sts. of Maine, ch. 135, sec. 
 26 ; Rev. Sts. of Mich. ch. 103, sec. 24. In Pennsylvania, the fine cannot exceed thirty 
 dollars. Dunlop's Laws of Penn. p. 628. In Maryland, jurors neglecting to appear when 
 summoned, without sufficient excuse, may be fined £35 by the general court and £20 by 
 the county courts. Laws of Maryland, passed April 1182, ch. 40. See Dorsey's Laws of 
 Maryland, vol. 1, page 119. 
 
162 JUBOBS. , 
 
 may be had almost as of course : but without consent, the only mode 
 of obtaining it, is by removing the indictment into the court of Queen's 
 Bench by certiorari, and then applying for and obtaining the -rule. 
 
 Upon a full jury appearing, the prisoners who have been arraigned 
 being at the bar, the clerk of the arraigns at the assizes, or the clerk of 
 the peace at sessions, in cases of treason or felony, addresses the prisoner 
 thus : " Prisoners : these good men who shall now be called, are the 
 jurors who are to pass between our sovereign Lady the Queen and you 
 upon your [respective] trials ; if therefore you [or either of you, or any 
 of you] would challenge them or any of them, you must challenge them 
 as they come to the book, to be sworn, and before they are sworn, and 
 you shall be heard." 
 
 In treason and felony the names of the jurors are then separately 
 called over by the clerk of arraigns or clerk of the peace, and the crier 
 of the court administers the oath to each of them, thus : " You shall 
 well and truly try, and true deliverance make, between our sovereign 
 Lady the Queen and the prisoners at the bar, whom you shall have in 
 charge, and a true verdict give according to the evidence : So help you 
 God." [2] As to the affirmation of Quakers, Moravians, and Separa: 
 tists,(a) 
 
 As each juror is named, and before he is sworn, or rather before the 
 oath or affirmation is tendered to him, the prisoner may challenge him 
 as mentioned infra. 
 
 But in misdemeanors, the jury are at once sworn, usually four jurors 
 at a time, without giving the defendants their challenges as above-men- 
 tioned. The oath is thus : " You shall well and truly try the issue 
 joined between our sovereign Lady the Queen and the defendants, and 
 a true verdict give according to the evidence : So help you God." 
 
 [*163] *(/i) Challenges of jurors. 
 
 The jurors must be challenged, if at all, before they are sworn,(6) or 
 the oath or affirmation tendered to them. And where, after the jury 
 were all sworn, the case opened, and one witness examined, the fore- 
 man intimated to the court that there was a relation of the defendant 
 
 (a) See ante, p. 150. (&) 2 Hawk. o. 43, s. 1. 
 
 [2] The following oath or affirmation must be administered by the court, to each juror : 
 " You do swear in the presence of Almighty God [or, " you do solemnly affirm," as the case 
 may be,] that you will well and truly try this traverse between the people of -the state of 
 
 and defendant, and a true verdict give, acoording to evidence, unless discharged 
 
 by the court." 
 
 After the jury have been thus sworn, they are to sit together, and hear the proofs and 
 allegations in the case, which must be delivered in public, and in the presence of the de- 
 fendant. 
 
CHALLENGE OF JURORS. 163 
 
 on the jury, Erskine, J. (after conferring with Tindal, C. J.) held, that 
 he had no power to discharge the jury, and that the case must there- 
 fore proceed.(a)[l] 
 
 The Queen or the party may challenge the whole array, for fa- 
 
 vor.(£)[2] 
 In B. v. Dolby, (c) the defendant being indicted in Middlesex, before 
 
 (a) R. v. Wardle, Car. & M. 641. (c) 1 Car. & K. 238. 
 
 (6) llnst. 156. 
 
 [1] The term challenge, is used in law for an exception to jurors who are returned to pass 
 on a trial. The practice of challenging jurors is mentioned by Blackstone as answering to 
 the recusatio judicis in the civil and common laws. Mr. Spence (Spence's Chan. 10 b.) speaks 
 of the "Roman right of challenge," as introduced into England, or confirmed at the con- 
 quest. 
 
 The challenge of a juror must be before the oath is commenced ; and the oath is commenced 
 by the juror taking the book, having been directed by the officer of the court, to do so ; but 
 if the juror takes the book without authority neither party desiring to challenge, will be 
 prejudiced thereby. Begina v. Frost, 9 Oar. & Payne 137. See W dure v. State, 1 Yerger, 
 206; Commonwealth v. Knapp, 10 Pick, 471 ; Brattonv. Bryan, 1 Marsh. 212; King v. State, 
 5 How. (Miss.) Rep. 130; State v. Flower, 1 "Walker, 318; Com. v. Jones, 1 Leigh, 598; 
 Beauchamp v. The State, 6 Blackf. 299 ; Hooker v. The State, 4 Ohio, 348 ; Mvmhj v. State, 7 
 Blackf. 593 ; Morris v. State, 1 Blackf. 601. It is provided by statute, in Virginia, that no 
 exception shall be allowed against any juror after he is sworn upon the jury, on account of 
 his'estate, or age, or other legal disability. Rev. Code of Va. of 1849, tit. 49 ch. 163, sec. 
 4. In Massachusetts, it is said that a challenge is not too late after a juror has been merely 
 sworn, and not impanneled. Com. v. Twombly, 10 Pick. Rep. 480 ; see WiUiamsv. The State, 
 3 Kelly's Geo. Rep. 453. 
 
 In the case of The Feople v. Damon, 13 "Wend. Rep. 355, the court, Savage, C. J., held, that 
 if it was made to appear, even after a jv/ror was sworn, that he was totally incompetent, by 
 reason of having prejudged the case, that it was not too late to set him aside and call another ; 
 and see Tooel's case, 11 Leigh. 114. The rule, however, as stated by Hawkins, and other 
 standard writers on criminal law, is, that no juror can be challenged by either side, without 
 consent, after he has been sworn, unless it be for some causo which happened since he was 
 sworn. 1 Coke Just. book 3, ch. 9 ; 2 Hawk. PI. Cr. 568 ; 1 Chitty's Cr. Law, p. 545. This 
 last author maintains that the proper time for challenging, is between the appearance and the 
 swearing of the jurors. And this seems to be the true doctrine. 
 
 In Booker v. The State of Ohio. 4 Hammond, 350, it was held that the right of peremptory 
 challenge ought to be held open, for the latest possible period, to wit, wp to the actual swear- 
 ing ofthejwy. And in Beauchamp v. The State, 6 Blackf. Rep. 301, the supreme court laid 
 down the rule that either party -may challenge at any time between the appearance, and 
 swearing of the jury. See also Jones v. Venzandt, 2 M'Lean Rep. 611. But in Massachusetts, 
 in the case of Com. v. Sogers, 1 Met. Rep. 500, it was held that the right of a party who is 
 put on trial for a capital offence, to a peremptory challenge, must be exercised, if at all, before 
 the jurors are interrogated by the court concerning their bias and opinions. But see State 
 v. Potter, 18 Conn. Rep. 166. 
 
 In Alabama, the court may permit a party to challenge a juror for cause, at any time before 
 the case is submitted to the jury, although they may have been selected and sworn. Haynes 
 v. Cmtchfield, 1 Ala. Rep. 189. And in South Carolina, under the statute of 1841, either 
 party may claim the right of challenge at any time before the jury is charged, either party 
 challenging first. Klemback v. The State, 2 Speer's Rep. 418. 
 
 See "Waterman's Criminal Law, Tit. Challenges of Jurors. 
 
 [2] Challenge are of two kinds, — to the array, or to the polls ; and each of these are again 
 snbdivided into principal challenges, and challenges to the favor. By challenge to the array, 
 
163 — 1 JURORS. 
 
 the court of King's Bench, for a seditious libel, challenged the array, he- 
 cause he said that he was prosecuted by an association called the Consti- 
 
 is meant, challenge to the whole jury as it stands arrayed in the panel. By challenge to 
 the polls, is understood the challenging the several jurors individually. 
 
 In New York, the statutes provides that every person indicted for any offence shall be 
 entitled to the same challenges as are allowed in civil cases, either to the array of jurors or 
 to individual jurors. Rev. Stat, of New York, 4th Ed. vol. 2, p. 911, sec. 12. 
 
 The attorney general, or district attorney prosecuting for the people of this state, shall he 
 entitled to the same challenges in behalf of this state, either to the array or to individual 
 jurors, as are allowed to parties in civil cases; and the same proceeding shall be had there- 
 on, as in civil actions. lb. sec. 13. 
 
 In Maine, Massachusetts, Pennsylvania, and Wisconsin, there are substantially the same 
 statutory provisions as in New York, permitting like challenges to jurors in criminal and 
 civil cases. Rev. Stat, of Maine, ch. 112, sec. 31; Rev. Stat, of Mass. eh. 13T, sec. 3. Dun- 
 lop's Laws of Penn. p. 630 ; Rev. Stat, of Wis. ch. 148, sec. 3 and 4. 
 
 A challenge to the array, is an objection to all the jurors returned by the sheriff, collec- 
 tively: (Co. Lit. 156, 158 ;) not for any defect in them, but for some partiality or default in the 
 sheriff, or his under officer, who arrayed the panel. 3 Bl. Com. 359 ; 2 Tidd, 119 ; 9 John. 
 261. This is the English definition, where the panel is arrayed by the sheriff. Since our 
 statute, authorizing the clerk to array the jury, a challenge to the array also lies, for partiality 
 or default in the clerk ; who, for many purposes, is substituted for the sheriff, in selecting 
 and arraying the jury. 9 John. 261. This is either a principal challenge, or challenge to 
 the favor. 
 
 The causes of principal challenge to the array are such as the following, viz : that the offi- 
 cer who makes the array is of kindred or affinity to either party, within the ninth degree, 
 (1 South. Rep. 364) — that one or more of the jury are returned at the nomination of either 
 party — that an action of battery, or other action implying malice, is pending at the suit of 
 either party, against the officer, or at the suit of the officer, against either party — that an 
 action of debt is pending, at the suit of the party, against the officer, but not, if by the offi- 
 cer, against the party — that the officer holds land depending upon the same title with that 
 in litigation, between the parties — that the officer is under the distress of either party — that 
 the officer is counsel, attorney, (Cowp. 112,) officer, servant, or gossip, of either party, or is 
 an arbitrator, in the same matter, and has treated thereof; (Co. Litt. 156,)— that the clerk, 
 instead of drawing 36, drew 12 names, put them in a list, and selected 36 from them. 9 
 John. 260. 
 
 The causes of challenge, to the array for favor, are, such as imply, at least, a probability 
 of bias or partiality in the officer, but do not amount to a principal challenge. Thus, that 
 the plaintiff or defendant in the tenant of the officer . or that the son of the officer has mar- 
 ried the daughter of the plaintiff or defendant, or the like. Co. Litt. 156. See Quinebaug 
 Bank v. Tarbox, 20 Com. Rep. 510. 
 
 In Mississippi, a challenge to the array cannot be made, since the act of 1836, for informa- 
 lity of the venire facias. Thomas v. The State, 5 How. Miss. Rep. 20. 
 
 To the Polls. A challenge to the polls is' an exception to one or more of the jurors who 
 have appeared individually; and this is either a principal challenge, or a challenge to the 
 favor. The causes of a principal challenge to the polls may be classed under the following 
 
 heads. 
 
 1. Challenge, propter honoris respectum, (Co. Litt. 156; 2 Hawk. c. 43, s. 11; 3 Bl. Com. 
 361,) is inapplicable, as depending on a title of nobility. Con. IT. S. art. 1, s. 9, pi. 1. 
 
 2. Propter defectum, that the juror is not qualified to serve upon a jury. Thus, that he 
 has not sufficient freehold, or other property, (1 R, L. 621, s. 9 ; Co. Litt. 45,) excepting, of 
 course, where the jury are de medietate Ungual, (1 R. L. 321,s. 9,) that he is within the age 
 of 21, '(Co. Litt. 151 ; 1 R. L. 321,) or above the age of 60. (1 R. L. 321,) or that he is an 
 idiot or lunatic. Gilb. C. B. 95. So if a woman be empanneUed, she may be challenged 
 propter defectum sexus, (3 Bl. Com. 362,) unless empanneUed on the writ de ventre inspicieftdo. 
 
CHALLENGE OE JURORS. 163 — 2 
 
 tutional Association, and that one of the sheriffs who returned the jury- 
 was one of the association ; the counsel for the prosecution thereupon 
 
 See Cro. Eliz. 566. That the juror is an alien, (6 John. 332, 4 Dall. 353,) or that he is a 
 slave, or not a resident of the county. Co. Litt. 156, b. Boote, 157. 
 
 But a matter whiqh merely exempts a man from serving on a jury, and does not incapaci- 
 tate him, can never be a cause of challenge. An instance of these exempts is in 1 R. L. 335, 
 s. 28. And it is said in Hawk. o. 43, s. 26, that if a person thus exempted, be summoned, 
 and appear, he cannot excuse himself from serving on a jury, if there be not a sufficient 
 number of jurors -without him. He instances old age, &c, under the statute of Westm. 2, 
 ch. 38. 
 
 If a juror be erroneously named in the distringas, panel &c. and sworn by such wrong 
 name, if the error be in the christian name it amounts only to a matter of challenge, and 
 cannot be objected after verdict. Willes, 488 ; 12 East, 230, a. ; 2 Burn. J. 856. If the 
 surname, (particularly where the person serving is not the same that was intended to be 
 summoned) the court have, in such a case, set the verdict aside. Willes, 484 ; Barnes, 453 ; 
 6 Taunt. 460 ; Barnes, 455. But see 12 East, 229, where the court held it was discretionary 
 with them to grant a new trial in such a case, or not ; and that they would not do so, un- 
 less the mistake, as to the juror, had been productive of some injustice. 
 
 3. Challenge propter affectum, by reason of some supposed bias or partiality. Thus, that 
 the juror is of kin to either party, within the ninth degree, (Einch. L. 401 ; 3 Bl. Com. 363,) 
 or, according to Ld. Coke, however remote the kindred, (Co. Litt. 157) — that there is an 
 affinity or alliance, by marriage, between the juror and one of the parties, if such affinity 
 continue, or there be issue of the marriage alive ; for otherwise it would be but a challenge 
 to the favor, (Co. Litt. 15"7,) that the juror is god-father to the party's child, or the party 
 god-father to the juror's child — that the juror has land which depends upon the same title as 
 the land in question ; or, in a cause where the parson of the parish is a party, and the right 
 to the church comes in debate, that the juror is a parishioner is a good cause of challenge ; 
 and so in all other cases where the juror has an interest in the action, direct or collateral, 
 (see Burr. 1847 ; 2 John. 194; St. sess. 43, ch. 37, s. 3; 5 Mass. Rep. 90; 2 South. Rep. 
 686,) that the juror has before given a verdict in the same cause, or upon the same title or" 
 matter, though between other parties — that he was chosen arbitrator in the same cause, by 
 one of the parties, and has entered upon an examination of it; but otherwise if he were 
 chosen indifferently by both parties — that he is counsellor, servant, or of fee of either party, 
 (Co. Litt. 157,) that he is tenant of either party, (Gilb. C. B. 95,) that he is of the same 
 society or corporation with either party, (3 Bl. Com. 363,) but that he is his fellow servant is. 
 but a challenge to the favor, (Co. Litt. 157,) that he has taken information of the case before 
 he is sworn, (2 Hale, 306,) that he has declared his opinion of the case beforehand, (2 Hawk, 
 ch. 43, s. 28 ; 1 John. Rep. 316,) but not where he merely expresses a conditional opinion, 
 thus : " If the reports of the neighbors be correct, the defendant is wrong, and the plaintiff 
 is right;" (8 John. 445 ; 1 C. H. Recorder, 24, S. P. ; 6 C. H. Recorder, 71, S. P.,) that since 
 he has been returned, he has eaten or drunk at the expense of one of the parties; (Co. Litt. 
 157,) but that one of the parties has been lately entertained at the juror's house, is only 
 matter of challenge to the favor, (3 Salk. 81,) that one of the parties has labored the juror, 
 and given him money or other thing for giving his verdict; but if the party only labor the 
 jury to appear, and act conscientiously, it is no matter of challenge whatever— that an action, 
 implying malice or displeasure, is pending between the juror and one of the parties ; but if 
 not implying malice or displeasure, it is but matter of challenge to the favor. Co. Litt. 157. 
 
 4. Challenge propter delictum; when for some act of the juror, he has ceased to be, in con- 
 sideration of law, prolms et lagaUs homo. Thus, that.be has been convicted of treason, felony, 
 perjury, conspiracy, forgery, &c. — that he has received judgment of the pillory or other in- 
 famous corporal punishment, for any infamous crime — that he is outlawed upon criminal pro- 
 cess; (Co. Litt. 158,) but it is doubted whether outlawry in a personal action disqualifies a 
 man from being a juror. See Cro. Car. W. Jon. 198 ; Ley. 81. 
 
 The challenge to the polls for favor, is of the same nature with the principal challenge 
 
163—3 jurors. 
 
 took issue ; the chief justice then appointed two triers to try the issue, 
 who were accordingly sworn ; the counsel for the defendant first ad- 
 
 propter affectum, but of an inferior degree. The general rule of law is, that the juror shall be 
 indifferent; and if it appear probable that he is not so, this maybe made the subject of chal- 
 lenge, either principal or to the favor, according to the degree of probability of his being 
 biased. The cause of principal challenge to the polls, we have seen, is such matter as carries 
 with it, prima facie, evident marks of suspicion, either of malice or favor. But when, -from 
 circumstances, it appears probable that a jury may be biased in favor of, or against either 
 party, and yet such circumstances do not amount to matter for a principal challenge, it may 
 then be made a challenge to the favor. The effect of these two species of challenge is the 
 same ; the only difference between them is in the mode of trying them. 1 Archbold, 183 ; 
 Co. Litt. 158, a. ; 3 Caines' Rep. 138. If a juror declare on oath to the triers, that the testi- 
 mony being equal, he should find a verdict for the plaintiff, he should be rejected. 1 Cranch, 
 291. And in an action by a bank, the juror stating that he was the indorser of a note to 
 the bank, was found by the triers not different; and this was holden well. 19 John. 115. 
 That he was a stockholder in the bank, would of course, be a good objection. 6 C. H. Re- 
 corder, 69. If the triers are in doubt whether the juror is indifferent, they should find him 
 not indifferent. 4 C. H. Recorder, 81. 
 
 When and how made. No challenge either to the array or to the polls, can be made, be- 
 fore a full jury have appeared. 2 Hawk. o. 43, s. 1. • It is immaterial, which party challenges 
 first ; but the party who first begins to challenge, must finish all his challenges before the 
 other begins ; otherwise, he is precluded from making any further challenges. Also, the 
 challenges of the party who challenged first, shall be first tried. Tr. per Pais, 144. 
 
 The challenge to the array must be in writing. It may be in this form : " And now at 
 this day, to wit, on come as well the aforesaid J. S. as the aforesaid J. N. by their re- 
 spective attornies ; and the jurors of the jury impannelled, being summoned, also come ; 
 and hereupon the said J. N. challength the array of the said panel; because he saith that 
 [here set forth the matter of challenge, with certainty and precision,] and this he is ready to ve- 
 rify. "Wherefore he prayeth judgment, and that the said panel may be quashed." See the 
 form of a challenge to the array that the jury were returned at the instance of, the party, (2 
 Burn. J. 868,) that the sheriff is of kin to one of the parties, (id.,) that the sheriff is an alder- 
 man, and interested in the event of the trial, (Or. Cir. Comp. 105,) that the sheriff is a citi- 
 zen and freeman, and has paid a sum of money towards defraying the expenses of the suit. 
 And see a counterplea to this last challenge, and a demurrer to the counterplea. Id. See 
 also, Tr. per Pais, 159, 184; 10 Wentw. 414; 2 Rich. Praet. C. B. 180; Litt. Bnt. 472. 
 Mr. Wooddeson, the late Tinerian professor, has furnished the form of a challenge to the 
 array, a demurrer, and judgment thereupon, and a principal challenge to the polls ore tenus, 
 and a judgment thereupon, with some other useful particulars in relation to these challenges, 
 which are mentioned in Eeslcefh v. Braddock, Burr. 184"?. See 3 Wood. Lee. 347, n. i. 
 
 Mr. "Wooddeson's note is thus : "As Sir James Burrow has not given the record at length, 
 I have set down the form of these challenges, (which is not of every day's experience) 
 
 from my MS. precedents. "And hereupon the said S. B. prayeth judgment of the panel 
 
 aforesaid, because he says that the said panel was arrayed and made by J. 0. and J. D. sheriffs 
 of the said city of Chester; and that the said J. C. and J. D. were, at the time of the making 
 of the panel aforesaid, and continually from thenceforth hitherto have been and still are citi- 
 zens and freemen of the said city of Chester ; and this the said S. B. is ready to verify. 
 Wherefore he prays judgment and that the panel aforesaid may be quashed. And the said 
 P. E. and H. H. say, that the matter in the aforesaid challenge to the array of the said panel 
 contained, is not sufficient, in law, to quash the array of the said panel ; and this they are 
 ready to verify. Wherefore they pray judgment, and that the array of the said panel may 
 be allowed by the court here. And the said S. saith for that he hath above alleged a suffi- 
 cient challenge to quash the array of the panel aforesaid, which he is ready to verify, which 
 said challenge the said P. and H. do not, nor doth either of them deny, nor to the same in 
 any wise answer,' but do, and each of them doth altogether refuse to admit that averment, 
 
PETIT JURY CALLED AND SWORN. 163 — & 
 
 dressed these triers, and called a witness, who proved that the sheriff 
 named was one of the subscribers to the association ; the counsel for 
 
 he the said_ S. prays judgment, and that the array of that pannel may be quashed. And 
 hereupon it -is judicially taken notice of by the said court here, and is known to the same 
 court, that by the custom and constitution thereof, and of the city aforesaid, no person or 
 persons can or ought to array the panel of any jury -within the jurisdiction of the said court, 
 or in any civil suit within the same city, other than the sheriffs of the same city, for the time 
 being, or one of them, or (by reason of any default in the said sheriffs) the coroners of the 
 said city, for the time being, or one of them ; and that, by the custom of the said city, from 
 time immemorial, no person or persons can or ought to be sheriffs, or coroners, of or within 
 the said city, but citizens and freemen of the same city. And now all and singular the 
 matters aforesaid, whereof the said parties have above put themselves upon the judgment of 
 the said court here, having been seen, and fully understood, by the same court, it appeareth 
 to the same court here, that the matter contained in the aforesaid challenge to the array of 
 the said panel, is not sufficient in law to quash the said array of the panel aforesaid. — There- 
 fore it is considered, by the said court here, that the said challenge of the aforesaid S. to the 
 said array of the said pannel be disallowed ; and that the said panel of the aforesaid jury, so 
 arrayed as aforesaid, be allowed and taken. And hereupon the said S. B. ore terms in open 
 court challengeth the polls, because he says, that the jurors, above named, are citizens and 
 freemen, and each of them is a citizen and freemen of the said city of Chester. Which said 
 challenge by the court here is disallowed. And here upon the said jurors," &c. 
 
 N. B. This challenge ore -teams was omitted in the first engrossment of this record ; and 
 ■which the defendant alleged diminution ; and this challenge ore tenus was then inserted, &c, 
 by rule." 
 
 The challenge to the polls is made ore tenus ; and it is not in general required that the party 
 challenging shall immediately declare his cause of challenge, unless there be not a sufficient 
 number of jurors remaining on the panel, or that the other side challenge touts paravail Tr, 
 per Pais, 143. 4 C. H. Recorder, 81. But if the juror were formerly sworn in the same 
 cause, and be now challenged, (in which case the cause of challenge must have arisen since 
 the juror was before sworn,) or, if after a ohallenge to the array is tried and overruled, the 
 party challenge the polls, he must declare his cause of challenge presently. Co. Litt. 158, 
 If a juror be challenged, and the challenge tried and overruled, he may still be challenged 
 by the opposite party. Co. Litt. 158. 
 
 Sow tried. As to challenges to the array, it lies entirely in the discretion of the Court, 
 how they shall be tried. Sometimes they are tried by two of the coroners ; sometimes by 
 two of the jury. 2 Hale, 275. But see 1 South. Rep. 364. Perhaps any two individuals 
 may be named by the court. 9 John. 261. If the challenge, however, be a principal chal- 
 lenge, it may be tried by the court itself, without the aid or intervention of triers. I Arch- 
 bold, 184. 1 South. Rep. 364. If the facts are admitted, but are deemed insufficient, the 
 court adjudges on them, and either quashes the array, or overrules the ohallenge. 
 
 If the array be quashed as to the sheriff, a new venire shall be awarded to the coroner; 
 if quashed as to the coroner, then the venire is awarded to persons appointed by the court 
 for that particular purpose, called Elisors, (1 Cowen, 32,) to whose array no challenge is al- 
 lowed. Co. Litt. 158. If the array be not quashed, the party may then make his challenges 
 to the polls, (1 Archbold, 184,) as was done in Heslceih v. Braddoch, (Burr. 1841,) and in 
 Wooddeson's precedent .given in this note. 
 
 A principal challenge to the polls, is tried by the court without the aid or intervention of 
 
 If the challenge to the polls be to the favor, it is thus tried : If two jurors have been al- 
 ready called, and take the box without challenge, they shall try the challenge ; if not, the 
 court appoint two indifferent persons to try it, and who are thence named triers. If the 
 triers try one juror, and he is found indifferent, he and the two triers shall try the next. 
 Co. Litt. 158. 1 South. Rep. '712. 1 C. H. Recorder, 185. 4 id. 81. The following oath 
 
 59 
 
163 5 jurors. 
 
 the prosecution then addressed the triers, and called a witness to prove 
 that the sheriff had ceased to be a subscriber to or member of the asso- 
 ciation before the return of the jury process, but failed in proving it for 
 want of the letter by which the sheriff had withdrawn himself from it ; 
 the triers were then addressed by the counsel for the defendant in re- 
 ply ; the chief justice summed up ; the triers thereupon found in favor 
 of the challenge ; and the cause was adjourned. This will be found to 
 be a good precedent to follow, in similar cases, where issue is taken on 
 the challenge. 
 
 In another case, (a) the counsel for the prosecution demurred to the 
 challenge, as being too general, in merely stating that the sheriff had 
 not chosen the panel indifferently and impartially, and that the panel 
 was not an indifferent panel, without showing in what respect the she- 
 riff had acted partially, &c. ; the counsel for the defendant joined in de- 
 murrer ; the two judges Grurney, B. and Cresswell, J., after argument, 
 allowed the demurrer, and the trial proceeded. [3] 
 
 (a) R. v. Hughes, 1 Car. & K. 235-. 
 
 is previously administered to those who try the challenge: " You shall well and truly try 
 whether J. S. (the juror challenged) stands indifferent between the parties to this issue ; so 
 help you God." See the form in a criminal case, 1 C. H. Recorder, 185. 1 Salk. 152. More 
 than two triers or two jurors, cannot be sworn to try a challenge, except in the single case 
 before mentioned. 1 South. Rep. T2. 
 
 The juror himself may be examined as to the matter of challenge, provided it do not tend 
 to his dishonor or discredit. Co. Litt. 158. 1 Salt. 153. 19 John. 115. 
 
 The causes of favor are infinite, and with regard to all cases of challenges to the favor, in 
 the emphatic language of Lord Coke, " The rule of law is, that the juror must stand indif- 
 ferent, as he stands unsworn." 
 
 One called as a juror on a trial for murder, offered an excuse, that though not a quaker 
 he had determined never to consent to a verdict of guilty, which involved the life of an in- 
 dividual. He was challenged to the favor, by the District Attorney, tried, and found not in- 
 different. 1 C. H. Recorder, 185, 6. 
 
 [3] A challenge to the array will not be allowed, on the ground that all persons of a particu- 
 lar fraternity have been excluded from the jury, if those who are returned possess the requi- 
 site qualifications. People v. Jewett, 3 Wend. 314. 
 
 In Pennsylvania, under the acts of Assembly relating to the summoning of jurors, it was 
 held no cause of challenge to the array, that the sheriff was not present the whole time 
 during which the selection of jurors was made ; or, that the sheriff and commissioners took 
 up between two and three weeks in making the selection and putting the names of the 
 jurors into the wheels, or that it did not appear that the sheriff and commissioners wrote the 
 names of the jurors selected by them, and put the same into the wheels, this duty having 
 been performed by a clerk in their presence and by their order ; or, that the pieces of paper 
 on which the names were written, were not safely kept between the time of writing and 
 putting them into the wheel, the same having been put into a box where they were kept until 
 the selection was completed, when they were put into the wheels ; or that the names which 
 were remaining in the wheels at the end of the year were taken out before the names selec- 
 ted for the new year were put in. Com. v. Lippard, 6 Serg. & R. 395. 
 
 The person challenging the array must be strictly prepared to prove the cause, (R. v. 
 Savage, R. & M. C. C. 51,) and if he omit to challenge, he cannot take advantage of the 
 alleged defect aaorwards. R. v. Sutton, 8 B. & 0. 417 ; 2 M. & R. 406. 
 
CHALLENGES OP JURORS. 163—6 
 
 The prisoner may peremptorily challenge twenty jurors in murder 
 or other felony ;(a) thirty-five in treason ; but. there is no peremptory 
 challenge in misdemeanors, (b) or upon the trial of collateral issues.(c) 
 Every peremptory challenge above the limited number, is void, and 
 the trial may proceed as if no such challenge had been made.(c£)[4] 
 
 (a) 6 G. 4, 0. 50, a. 29. (c) Post. 42. R. v. Batcliffe, 1 "W. Bl. 3. 
 
 (6) R. v. Reading, 7 How. St. Tr. 264. (d) 7 & 8 G. 3, o. 28, s. 3. 
 
 [4] Peeemptoey Challenge. 
 The following are the legislative enactments of some of the states relative to peremptory 
 challenges : 
 
 NEW YOBS. 
 
 , Every person arraigned and put on his trial for any offence punishable with death, or with 
 imprisonment in a state prison ten years or any longer time, shall be entitled peremptorily 
 to challenge twenty of the persons drawn as jurors for such trial and no more. 
 
 Every person arraigned and put on trial for any offence not punishable with death, or 
 with imprisonment in a state prison ten years, or for a longer time, shall be entitled peremp- 
 torily to challenge five of the persons drawn as jurors for such trial and no more ; except 
 that in cases tried in any court of special sessions, said right of peremptory challenge, shall 
 extend to only two of the said persons so drawn. 184?, ch. 134, sec. 1. 
 
 Nothing in this-act contained shall be deemed toprevent any challenges heretofore allowed, 
 either to the array of jurors, or to individual jurors. 2 R. S. 917, sees. 9, 10, 11. 
 
 MASSACHUSETTS AND MAINE. 
 
 Any person, who is put on trial for an offence punishable with death, shall be allowed to 
 challenge, peremptorily, twenty of the persons returned as jurors, and no more. Rev. Sts. 
 of Mass. ch. 131, sec. 5. There is substantially the same statute in Maine. Rev. Sts. of 
 Maine, ch. If 2, sec. 17. 
 
 PENNSYLVANIA. 
 
 No person shall be deemed incompetent to serve as a juror, in any suit or prosecution upon 
 any official bond or forfeited recognizance, or upon any penal act of assembly, by reason of 
 his being subject to any tax which would be diminished by the recovery which may be had 
 in such case. 
 
 Every person who shall be arraigned for murder or any other felony, whereof the courts 
 of oyer and terminer and general gaol delivery have exclusive jurisdiction, shall be admitted 
 to challenge, peremptorily, twenty of the panel, but n o more. 
 
 In cases of felony, the commonwealth shall not challenge any juror without cause, nor 
 shall the commonwealth, in any criminal proceeding, have a right to challenge, peremptorily, 
 a greater number of jurore than the defendant or defendants in such case. 
 
 All challenges in criminal proceedings shall be conducted as follows, to wit : 
 
 The commonwealth shall challenge one person and then the defendant shall challenge one 
 person, and so alternately, until all the challenges shall be made, but if the commonwealth 
 shall refuse to make any challenge, the defendants shall nevertheless have their right to 
 challenge the full number allowed to them by law. Dunlop's Laws of Penn. p. 630. 
 
 MICHIGAN. 
 
 Any person who is put on trial for an offence punishable with death, or for murder in the 
 first degree, shall be allowed to challenge, peremptorily thirty of the persons returned as 
 jurors and no more. Rev. Sts. of Mich. ch. 165, sec. 5. 
 
 MISSISSIPPI. 
 
 Prom and after the passage of this act, it shall any may be lawful for any circuit or criminal 
 court in this state, or any judge thereof, in vacation, to change the venue in criminal cases 
 
•jog i7 JURORS. 
 
 The Queen has no peremptory challenge ; she can only challenge for 
 cause ;(a) but she is not bound to show the cause, until the whole panel 
 
 (a) 6 G. 4, o. 50, s. 29. 
 
 to any adjoining county, on a sufficient showing being made by the prisoner on oath, sup- 
 ported by the testimony" of one or more credible witnesses, that he cannot have a fair and 
 impartial trial in the county where the offence is charged to have been committed. 
 
 Hereafter whenever any person shall have been arraigned, charged with any felony, the 
 punishment of which is death, it shall be the duty of the court to award forthwith a special 
 venire, which shall be issued by the clerk, commanding the sheriff to summon from the 
 county any number which may be directed by the judge of said court, not exceeding one 
 hundred jurors, requiring them to attend on a particular day to be mentioned in said venire : 
 and in case the special venire is exhausted, without having empannelled a jury, the court 
 shall then proceed to make up said jury from the regular panel and tales jurors, who may 
 have been summoned for that day, and if, after having exhausted said regular panel and 
 tales jurors, there shall still not be obtained a full and competent jury for the trial of said 
 prisoner, the court may direct the sheriff to summon forthwith, from among the bystanders, 
 as many tales jurors as may be sufficient. 
 
 From and after the passage of this act, upon the trial of any white person or persons 
 indicted for any capital offence, the accused shall not be entitled to challenge peremptorily, 
 above the number of twelve persons presented as jurors, to pass upon his ease ; and the state 
 in the same case, shall be permitted a peremptory challenge of six persons, and in all crimi- 
 nal cases, where the offence is not capitally punished, the state shall be entitled to two 
 peremptory challenges : Provided always, That all peremptory challenges by the state, shall 
 be made before the state presents the juror to the prisoner, and not afterwards. Hutchinson's 
 Mississippi Code, p. 1007, 1008. 
 
 VIRGINIA. 
 
 ~So challenge of a juror shall be allowed the commonwealth, except for cause, and all chal- 
 lenges shall be tried by the court in which they are made. Eev. Code of Va. 1849, tit. 55, 
 c. 208, s. 8. 
 
 WISCONSIN. 
 
 On the trial of criminal cases when the punishment is capital, the prosecuting officer shall 
 be entitled to challenge peremptorily, six of the persons returned as jurors, and no more; 
 and on the trial of criminal cases where the punishment is not capital, the prosecuting officer 
 and the defendant shall each be entitled to challenge peremptorily four of said jurors, and no 
 more. E. S. of Wis. c. 91, a. 37. 
 
 NEW JERSEY* 
 
 And be it enacted, That every person who shall be indicted for treason, murder or other 
 crime punishable with death, or for misprison of treason, manslaughter, sodomy, rape, arson, 
 burglary, robbery, forgery, perjury or subornation of perjury, and shall voluntarily and duly 
 plead the plea of not guilty to such indictment, shall be admitted peremptorily to challenge 
 twenty of the jury, and no more; and if any person, indicted as aforesaid, after having vol- 
 untarily and duly pleaded as aforesaid, shall peremptorily challenge a greater number of the 
 jury than twenty, the court shall disallow all such challenges, over and above the said num- 
 ber of twenty; and the jury shall be charged, and the trial shall proceed in like manner, in 
 all respects, and the like judgment shall be given as would or ought to be had and given if 
 the person so indicted as aforesaid, and having ploaded as aforesaid, had not peremptorily 
 challenged a greater number of the jury than in and by this act he or she is admitted to 
 challenge 
 
 And be it enacted, That neither the attorney-general, nor any other person prosecuting 
 for and in behalf of this state, shall be admitted in any case to challenge any juror, without 
 
CHALLENGES OF JURORS. 1(J4 
 
 be gone through, *and it appear that there will not be a full [*164] 
 jury without the person challenged.(a) 
 
 (a) 2 Hawk. o. 43, 3. 3. See B. v. Geach, 9 Car. & P. 499. 
 
 ,. , . 
 
 assigning a cause certain, to be tried and approved by the court : and further, the privilege 
 of such peremptory challenges shall not be allowed to offenders in any cases, but such as are 
 specified in the section immediately preceding. Rev. Stat, of N. J. p. 294, s. 6, 1. 
 
 The defendant, on his trial, if indicted for a capital crime or an offence punishable with 
 imprisonment in the penitentiary for life, may challenge peremptorily twelve jurors, and no 
 more; if indicted for any other felony, he may challenge only six in the same manner; and 
 if for an offence less than felony, _on four. In each case, the prosecuting attorney has the 
 right to challenge peremptorily one-half as many as the defendant is entitled to. Code of 
 Iowa, p. 412, s. 2981. 
 
 TENNESSEE. 
 
 The act of 1794, u. 4, a. 11, allows peremptory eallenges to the number of thirty-five ju- 
 rors, in eases capital. The act of 1803, u. 1, a. 5, provides, that in civil cases, either plaintiff 
 or defendant may challenge two jurors, without cause shown; and by the same section it is 
 provided, that in eases of petit larceny, both the state and party charged may, in like man- 
 ner, challenge four jurors. By the act of 1803, c. 17, on a charge for counterfeiting, &c. 
 which offence is not by it declared to be a felony, a challenge of five jurors is allowed the 
 prisoner. By the act of 1811, against forging or stealing deeds, the prisoner is allowed a 
 challenge of twenty jurors. On an indictment for usury, by the act of 1819, c. 22, s. 4, » 
 challenge of four jurors is allowed. By the act of 1811, against the crime of counterfeiting, 
 or passing counterfeit bank paper, the punishment of which is whipping, fine,. &c, the pris- 
 oner may challenge twenty jurors. In the act of 1813, c. 65, on the subject of offences 
 against the paper credit, the most penal law in our code, inflicting the punishment of death 
 for at least five of the offences, whipping with a cowskin, fine, imprisonment, &e. for others, 
 challenges are not so much as mentioned. The act of 1807, c. 12, describes the offences of 
 horse stealing, larceny of goods, forgery, perjury, malicious conspiracy, arson, harboring 
 felons, receiving stolen goods, breaking jails, and maiming, disfiguring, or stabbing. For 
 three of these offences, to wit, horse stealing, perjury, and arson, the punishment on a se- 
 cond conviction, is death; yet the act is silent on the subject of challenges. In 1803, c. 9 
 against malicious mischief, the act is silent as to challeges. In the act of 1801, against va- 
 grancy, unlawfully wearing arms, keeping gaming tables, &c. no right of challenge is provi- 
 ded for. 
 
 NORTH CAROLINA. 
 
 In North Carolina, a prisoner may challenge thirty-five jurors, and no more, without show- 
 ing cause. The State v. Gayner, Cameron & Norwood's Rep. 305. 
 
 SOUTH CAROLINA. 
 
 In South Carolina, the state has no right to challenge peremptorily, but may challenge for 
 cause ; and the cause need not be shown until the prisoner has gone through with his chal- 
 lenges. The State v. Staimaker, 2 Brevard, 1. 
 
 MISSOURI AND INDIANA. 
 
 In Missouri, in criminal cases, the state may challenge peremptorily three jurors. Mallison 
 v. The State, '6 Mis. Rep. 399. So, also, in Indiana. Wiley v. The State, 4 Blackf. 458 • 
 Beauchamp v. The. State, 6 Blackf. 300. And in Indiana, they may be made at any time be- 
 tween the appearance and swearing of the jury. lb. 
 
 LOUISIANA. 
 
 In all criminal prosecutions in this state, the right of peremptory challenge to the number 
 
164: 1 JURORS. 
 
 The prisoner, besides bis peremptory challenges, may also challenge 
 as many of the jury as be pleases for cause, showing the cause present- 
 
 of twelve of the jury, shall be allowed to every person put upon his trial for any crime where 
 the punishment may be imprisonment at hard labor for a term of twelve months or more, as 
 well as in cases punishable by death. Robinson's Penal Law of La. art. 521. 
 
 OHIO. 
 
 The defendant, in a capital case in Ohio, is entitled to twenty-three peremptory challenges. 
 Martin v. State, 16 Ohio Rep. 364. 
 
 The statute of Ohio, "relating to juries," (29 Ohio Laws, 98,) which gives to the posecu- 
 ting attorney, on the trial of an indictment, a right to two peremptory challenges, gives only 
 two in the same indictment, however many defendants may be joined in the indictment. 
 Mohan v. The State, 10 Ohio Rep. 233. 
 
 The several defendants in a cause, constitute but one party, and are entitled to no more 
 peremptory challenges than a single defendant. Bibb v. Eeid, 3 Ala. Rep. 88. 
 
 In Freeman v. The People, 4 Denio Rep. 9, on a preliminary trial as to the sanity of the 
 accused, the counsel for the prisoner claimed the right to challenge juries peremptorily. This 
 the court refused to allow. Peremptory challenges are allowed in favorem vitae, and at com- 
 mon law are restricted to the main issue in which the life of the party is in jeopardy, and 
 cannot be made on the trial of any collateral issue whatever. 2 Hale's P. C. 261, ch. 35; 
 Bac. Abr. Tit, Juries; Poster's Cr. Law, 42; 4 Blac. Com. 353, 396; Co. Lit. 156, b; The 
 King v. Radcliffe, 1 ?m, Bl. Rep. 3, 6. To the like effect, is the New-York Statute which 
 provides that " every person arraigned and put on his trial for any offence punishable with 
 death, or with imprisonment in a state prison, ten years, or any longer time," may "pe- 
 remptorily challenge twenty of the persons dTawn as jurors for such trial." 2 N. T. Rev. 
 Sts. 734, sec. 9. Challenges for cause, are allowable on the trial of preliminary as well as 
 first issues. This was conceded in the case of Freeman v. The People, and several of this 
 description were interposed on behalf of the prisoner. 
 
 Where a statute gives the right of peremptory challenges to a prisoner put on trial "for 
 an offence punishable with death, or imprisonment in a state prison ten years or any longer 
 time," a person indicted for burglary in the second degree, which is punishable " by impris- 
 onment in a state prison for a term not more than ten years, nor less than five years," is. en- 
 titled to peremptory challenges. Dull v. People, 4 Denio, 91. 
 
 If, in the trial of a criminal case in Tennesse, a juror becomes sick and is discharged, upon 
 the summoning of a jrror to fill his place, the defendant is entitled to as many challenges of 
 persons not before summoned in that cause, as if no juror had been selected. Granger v. 
 State, 5 Terg. 160. 
 
 The prevailing opinion is that the prisoner's right to a peremptory challenge is waived 
 when the juror is passed over to the court or the prosecution; Com. v. Sogers, 7 Met. 500; 
 U. S. v. Hanaway, U. S. Circuit Ct., Phil. 1852 ; though this has been doubted by a court of 
 great respectability. Wyatt v. State, 8 Blackf. 501 ; Eenrich v. Com. 5 Leigh, 708. 
 
 Peremptory challenges are not allowable on the trial of any collateral issue, (Post. 42; 
 Burn's Justice, Jurors, viii,) nor, at common law, in a trial for a misdemeanor. Reading's 
 case, 7 Howell's State Trials, 265 ; Oate's case, 10 Howell's State Trials, 1079 ; 4 B). Com. 
 353, note by Mr. Christian. 
 
 A prisoner who, in case of felony has challenged twenty jurors peremptorily, cannot with- 
 draw one of those challenges to challenge another juror, instead of one that he had previ- 
 ously challenged. R v. Parry, 7 C. & P. 836. 
 
 The right of peremptory challenge is a right, not to select, but to reject. U. S. v. Mar- 
 chant, 4 Mason, 160 ; 12 Wheaton, 480; State v. Smith, 2 Iredell, 402; see, however, Peo- 
 ple v. Bodine, 1 Denio, 281. 
 
 Peremptory challenges are allowable to a prisoner on trial, to be made or omitted accord- 
 ing to his judgment, or his pleasure, will or caprice. No reason is ever given or required for 
 the manner in which the right is exercised by the party. Blackstone says, they are allowed 
 
CHALLENGES OE JURORS. 164 2 
 
 ly,(a) and being prepared to prove it. (J) Thus, he may challenge a 
 juror, because he is a peer ;(c) or because he is one of the grand jurors 
 who found the indictment ;(d) or because he has not the qualification 
 required by the Jury Act ;(e) or because he is an alien ;(g) or because 
 he is under age.;(/i) or because he is outlawed ;(i) or because he is of 
 kindred or affinity to the prosecutor ;(k) or because he has made some 
 declaration, showing a prejudice against the prisoner ;{l) or the like.[l] 
 
 (a) 1 Inst. 158. 2 Hawk. c. 43, s. 10. (g) 1 Inst. 156. 2 Hawk. c. 43, s. 10. 
 
 (b) R v. Savage, By. & M. 51. (h) 1 Inst. 167. 2 Hawk. c. 43, s. 10. 
 
 (c) 1 Inst. 156. 2 Hawk. o. 43, s. 11. (») 2 Hawk. c. 43, s. 21. 
 
 (d) Lamb. 554. (fc) Semb. 1 Inst. 457. See R. v. Wardle, 
 (e)6G. 4,0. 50, s. 27. 2 Hawk. c. 43, ante, p. 163. 
 
 s. 12. (!) 2 Hawk. o. 43, a. 28. 
 
 "on. two reasons: 1. As every one must be sensible what sudden impressions and unac- 
 countable prejudices we are apt to conceive upon the bare looks and gestures of another ; 
 and how necessary it is, that a prisoner, (when put to defend his life,) should have a good 
 opinion of his jury, the want of which might totally disconcert him: the law wills not that 
 he should be tried by any one man against whom he has conceived a prejudice, even "with- 
 out being able to assign a reason for such his dislike ; 2. Because upon challenges for cause 
 shown, if the reasons assigned prove insufficient to set aside the juror, perhaps the bare 
 questioning his indifference may sometimes provoke the resentment ; to prevent all ill con- 
 sequences from which, the prisoner is still at liberty, if he pleases, peremptorily to set him 
 aside." 4 Bl. Com. 353. See also 1 Chit. Cr. Law, 534; 1 Inst. 156, b. 
 
 OPINIONS OF JURORS FORMING GROUND OF CHALLENGE. 
 
 [1] It seems that in England, expressions used by a juryman previous to the trial, are not 
 a cause of challenge, unless they can be referred to something of personal ill will towards 
 the party challenging. R. v. Edmonds, 4 B. & Aid. 492. It has, however, been considered 
 in England, to be good cause for challenge, on the part of the prisoner, that the juror had 
 declared his opinion beforehand, that the party is guilty and will be hanged. 2 Hawk. C. 43, 
 sec. 28. 
 
 In the United States, the weight of authority seems to be that the holding by a juror of any 
 opinions which may disqualify him from rendering a verdict in accordance with the laws of 
 the land, is a disqualification. 
 
 In reference to opinions formed and expressed by jurors, affording ground for challenge, 
 see People v. Mather, 4 Wendell, 229 ; Ex parte Vermilyea, 6 Cowen, 555 ; People v, Jewett, 
 3 Wendell, 314; Pringlev. Suse, 1 Cowen, 435; People v. Vermilyea, 7 Cowen, 108; Rice 
 v. State, 1 Terger, 432; State v. Scott, 1 Ruffin, 24; Brown v. Commonwealth, 2 Leigh 769; 
 Commonwealth v. Knapp, 9 Pick. 496. Marshall, C. J. 1 Burr's Trial, A6; United States v. 
 Wilson, 1 Baldwin, 18; Commonwealth v. Buswell, 16 Pick. 153; People'v. Bodine, 1 Denio, 
 281 ; Armstead v. Commonwealth, 11 Leigh, 657 ; Heath v. Same, 1 Robinson, 735 ; State v. 
 Buswell, 2 Harr. 529;. Brown v. Commonwealth, 11 Leigh, 769; Osanderv. Same, 3 ib. 780 ; 
 Hendridc v. Sarnie, 5 ib. 708 ; State v. Benton, 2 Dev. & Bat. 196 ; State v. Johnson, 1 Walker, 
 392 ; State v. Hooker, ib. 318 ; King v. State, 5 How. (Miss.) 730 ; Howerton v. State, Meigs, 
 262 ; M' Gregg v. State, 4 Black, 106 ; Smith v. Homes, 3 Scammon, 78; Gardner v. People, 
 ib. 88; Settus v. People, ib. 414. 
 
 In the above cases will be found the expression of the views of the courts in various states 
 in reference to the exclusion of a juror on account of his having formed or expressed an 
 opinion upon the case. 
 
 If the opinion expressed be merely conditional, thus, "if the reports of the neighbors be 
 correct, the defendant is wrong, and the plaintiff right," it is said to be no ground for chal- 
 
154 3 jurors. 
 
 If a person serve on the jury who has been regularly summoned, 
 but against who-rn there is a cause of challenge, for which the prisoner 
 
 lenge. See 1 Cowen, 438, in note ; and cases there cited ; Durrell v. Mosher, 8 Johns. 445 ; 
 People v. Mather, 4 Wendell, 243. In a capital case; it is not a ground for peremptory chal- 
 lenge to a juror, that he has formed, upon common report, and expressed an opinion of the 
 guilt of the prisoner, if the juror believed that such opinion would have no influence upon 
 him in the formation of his verdict, should the evidence on the trial be different from the re- 
 port of the facts. State v. Williams, 3 Stewart, 454. See Queensbwry v. State, 3 Stewart & 
 Porter, 308. But see M'Gowan v. State, 9 Terger, 184, where it is held, that if a juror has 
 heard the circumstances of the case, and believing the circumstances he has heard to bo true, 
 has formed, or formed and expressed an opinion, that is, has made up his mind as to the guilt 
 or innocence of the prisoner, he ought to be rejected. See also Ned v. State, 7 Porter, 187. 
 
 The forming and expressing an opinion by a juror upon the guilt or innocence of a party 
 on trial for a felony, is a principal cause of challenge ; the mere forming an opinion is enough, 
 People v. Pathbun, 21 Wendell, 509. 
 
 See People v. Bodine, 1 Denio, 281; Lohtnan v. People, 1 Comstock, 379 ; State v. Spencer, 
 I Zabriskie, N". J. Rep. 196; Nelius v. State, 13 Smedes & Marsh. Rep. 500 ; Sam v. State, 
 13 Smedes & Marsh. 189; Monroe v. State of Geo., 5 Geo. Rep. 85 ; State v. Potter, 18 Conn. 
 Rep. 166 ; State v. Webster, 13 N. H. Rep. 491; Pierce v. State, 13 N. H. Rep. 536. 
 
 In Massachusetts, New York, Pennsylvania, Indiana, Ohio, Georgia, and Mississippi, it is 
 a principal cause of challenge that a juror, on being called in a capital case declares that he 
 has conscientious scruples on the subject of capital punishment. Rev. Sts. of Mass. ch. 137, 
 sec. 6. People v. Damon, 13 Wend. Rep. 351; but see 2 Wheeler's Cr. Cas. 48; Com. v. 
 Lesher, 17 Serg. & Rawle, 155 ; Jones v. State, 2 Blackf. 475 ; State v. Town, Wright's Ohio 
 Bep. 75 ; Martin v. State, 16 Ohio Rep. 364; Williams v. State, 3 Kelly's Rep. 453 ; Lewis 
 v. State, 9 Smedes & Marshall's Rep. 115. 
 
 HOW CHALLENGES ARE TO BE TRIED. 
 
 When a challenge has been made to the array, it lies in the discretion of the court to di- 
 rect the mode in which it shall be tried. 2 Hale, 275. Burn, J. Jurors, IV. 3. Williams, 
 J. Juries V. Dick. Sess. 189. Sometimes it is referred to the attornies, sometimes by the 
 two coroners, and sometimes by two of the jury. 2 Hale, 275. Burn, J. Jurors, IV. 3. 
 Williams, J. Juries, V. Dick. Sess. 189, 190. But it is said, that when the challenge is on 
 the ground of affinity in the sheriff, it is best to leave it to two of the jurymen returned ; but 
 if for favor and partiality, then by two indifferent persons, taken from the bystanders. 2 
 Rol. Rep. 363. 2 Hale, 275. 4 Bla. Com. 353, n. 8. Burn, J. Jurors, IV. 3. Williams, J. 
 Juries, V. Dick. Sess. 190. 
 
 When the array is thus challenged for favor, the opposite party may either plead to it, or 
 demur to its sufficiency in law. See form of demurrer and joinder, 10 Wentw. 474, 475. If 
 the former course be taken, then the triers are sworn, and charged to inquire " whether it 
 be an impartial array or a favorable one.;" if they affirm it, the clerk enters under it " affima- 
 tur •" but if they fit d if to be partial, the words, " calumnia vera " are written on the record. 
 
 Tr. per P ais > lc3 ' 4 Bla ' Cora - 353 ' n ' 8- Ba0, Abr ' Jur ' eS ' E ' 12 ' WiUiam3 ' X JurieS ' T " 
 Dick. Sess. 190. If a demurrer be resolved on, either to the array or the polls, it is said that 
 there is no occasion for those circumstances which must attend a demurrer to a plea, such as 
 the counsel's signature ; but it is good, as soon as agreed on at the bar, and the prothono- 
 taries ought ofright to enter it on the record. 3 Leon. 222. Bac. Abr. Juries, E. 12. The 
 court may either decide the demurrer immediately, or adjourn its consideration to a future 
 period. Style, 464. Tr. per Pais, 199. Should the judges, upon hearing the argument, over- 
 rule the challenge, the decision is entered on the original record, and at nisiprius it appears 
 on the postea; but if it is over-ruled without demurrer, on being debated, the objection may 
 afterwards be made the subject of a bill of exceptions. Skin. 101. Hut. 24. Bac. Juries, 
 B. 12. If the challenge be admitted, and the array be quashed, a new venire is awarded to 
 the coroners or elisors, in the same manner as if it had been prayed by one of the parties to 
 
CHALLENGES OP JURORS. lf)4 4 
 
 would have challenged him if he were aware of it, still this is no ground 
 for applying for a new trial.(a) "Where a son served on a jury for his 
 
 (a) R. v. Sutton, 8 B. & C. 417. 
 
 #— — - — . — — . 
 
 be so directed, to prevent the delay at an earlier stage of the proceedings. Co. Lit. 158, a. 
 The disallowing the challenge, is not a ground for a new trial. 4 B. 4 A. ill. 
 
 When a, challenge is made to the polls, if it be a principal challenge, for some apparent 
 partiality, it is sufficient, if the ground be made out to the satisfaction of the court, without 
 any further investigation. Co. Lit. 157, b. Bac. Abr. Juries, E. 12. Williams, J. Juries, V. 
 1 Southard, 364. But a challenge to the favor, where the defendant simply denies, the matter 
 of challenge is left to the discretion of triere. Co. Lit. 157, b. Bac. Abr. Juries, E. 12. 
 Williams, J. Juries. V. i B. & A. 471. 
 
 This mode of ascertaining the impartiality of a juror, is employed in New York, and in 
 most of the Southern States. 12 Amer. Jurist, 337 ; 7 Dane's Abr. 334 ; 1 Cowen, 441, note, 
 and see cases there cited ; People v. Mather, 4 Wendell, 429 ; Ex parte Vermilyea, 6 Cowen, 
 559; Peoples. Bodine, 1 Denio, 281; Vanuaker v. JBeemer, 1 Southard, 364; Soolcs v. Paige, 
 1 Tenn. 260 ; Mima v. Hepburn, 7 Cranch 290. But in New Hampshire the court always 
 decide on the validity of a challenge to the favor. Rollins v. Ames, 3 N. Hamp. 350. So it 
 would seem in Vermont. Board/man v. Wood, 3 Vermont, 570. So also in Connecticut. 2 
 Swift's System, 233. And it is held by the learned author of an article upon this subject in 
 the American Jurist, (12 Amer. Jurist, 330, etseq,) that such has also been the prevailing 
 practice in Massachusetts. The questions in reference to the competency of jurors, which 
 arose in the celebrated case of Commonwealth v. Knapp, (9 Pick. 496. See also 10 Pick. 480,) 
 were submitted to the court. See also, 7 Dane's Abr. 334; 6 id. 231. But see Howe's Prac. 
 247. 
 
 In New York, when the facts on which a challenge rests are disputed, the proper course 
 is said to be, to submit the question to the triers ; but if neither of the parties ask for triers to 
 settle the issue of fact, and submit their evidence to the judge and take his determination 
 thereon, they cannot afterwards object to his competency to try that issue. People v. Mather, 
 4 Wendell, 229. 
 
 Where on a trial for felony, the prisoner, by his counsel, consents to substitute the court 
 for triers, upon challenges to jurors, such consent cannot afterwards be revoked, and a demand 
 made that a challenge to jurors shall be passed upon by triers, especially after the challenge 
 has been passed upon by the court. People v. Rathbun, 21 Wendell, 509. 
 
 A bill of exceptions lies for refusing triers, or upon any question arising upon a challenge 
 to jurors, in a case where triers may be demanded. Id. 
 
 In Tennessee, the judge who tries the cause as the trier of the competency of the jurors. 
 MGowan v. State, 9 Yerger, 184; State v Wall, 9 Yerger, 347. 
 
 The triers do not exceed two, unless by the consent of the prosecutor and the defendant, 
 or some special cause is alleged by one of them ; or where one juror is sworn, and two triers 
 appointed with him. Co. Lit. 158, a. Bac. Abr. Juries, E. 12. 4 Bla.Oom. 353, n. 8. If 
 this challenge be made to the first juror, and, of course, before any one has been sworn, then 
 the court will direct two indifferent persons to try the question ; and if they find the party 
 challenged indifferent he will be sworn, and join with the triers in determining the next chal- 
 lenge. But when two jurors have been found impartial, and have been sworn, then the office 
 of the triers will cease, and every subsequent challenge will be referred to the decisions of 
 the jurymen. Co. Lit. 158, a. 2 Hale, 275. Bac. Abr. Juries, E. 12. Burn, J. Jurors, IV. 
 3. Williams, J. Juries, V. Dick. Sess. 190. 
 
 OATH OF TRIERS. 
 
 You, and each of you, will well and truly inquire, whether A. B., the juror called, stands 
 indifferent between the People of the state of New York and C. D., the prisoner at the bar, 
 and a true verdict will give according to the evidence. So help you God. 
 
 60 
 
164—5 JURORS. 
 
 father, at his father's request, and -without collusion with either the 
 prosecutor or the defendant, and the son was under age and had no 
 qualification, nor was his name upon the panel : the court of King's 
 Bench held this to be a mistrial, and granted a new trial.(a) But by 
 stat. 7 G. 4, c. 64, s. 21, no judgment after verdict upon any indictment 
 or information for any felony or misdemeanor, shall be stayed or re- 
 versed for any misnomer or misdescription of any of the jurors, nor 
 because any person has served upon the jury who has not been returned 
 as a juror by the sheriff or other officer. 
 No challenge can be made, until after a full jury appears. (h) [2] 
 
 (a) R. v. Tremearne, 5 B. & 0. 254. (b) R. y. Edmunds, 4 B. & Aid. 411. 
 
 In New York, in the ease of Freeman y. The People, an objection was made to the oath as 
 administered to some of the triers. The oath was thus : " You do solemnly swear that you 
 will well and truly try, and well and truly find, whether the juror is indifferent, between the 
 People of the state of New York, and the prisoner at the bar, upon the issue joined." The 
 oath as given in books of approved credit and authority contains no such limitation, as that 
 made by the preceding words, " upon the issue joined? but requires the triers to find whether 
 the juror is or is not indifferent between the parties to the controversy. And jurors should be 
 so. It is not enough that they are indifferent upon the particular issue to be tried. See 4 
 Denio Rep. 9. 
 
 After this the triers take their seats in the jury box. 
 
 After challenging the juror, he is sworn in the following manner. 
 
 OATH TO THE JUEOB. 
 
 You do solemnly swear that you will true answers make to such questions as may be put 
 to you by the court touching your competency to serve-as a juror in this cause (or "touch- 
 ing the challenge exhibited against you,") so help you God. 
 
 After this the juror if the triers are satisfied of his competency is sworn as a trier and 
 takes his seat in the jury box. 1 
 
 After another juror is challenged, examined and sworn in the same manner as the last juror 
 he also takes his seat in the jury,box with the other triers. The two first triers are then 
 discharged. 
 
 The challenges being completed, and a full jury of unexceptionable persons, having been 
 obtained, the jury is sworn. Care should be taken that the parties sworn answer to the 
 proper names by which they are returned, though a mistake in this respect will not, after 
 verdict be material. Thus where the party actually summoned answers to a wrong name, 
 and is sworn, it is merely a ground of challenge, which may instantly be removed by cor- 
 recting the panel, and will afford no objection in arrest of judgment. So if the son of a jury- 
 man be summoned and answer to the name of his father, the court will not arrest the judg- 
 ment, unless it be shown that some actual injustice has been done to the prisoner. As soon 
 as each juror is sworn, he is set apart on the jury box, and when a full jury of twelve are 
 thus sworn the trial commences. See Waterman's Cr. Law, tit. Trial. 
 
 [2] No challenge can be made either to the array or to the polls, until a full jury have 
 made their appearance ; because, if that should be the case the issue will remain pro defectu 
 jwatorwm. And on this account, the party who intends to challenge the array, may pray 
 a tales to complete the number, and then object to the panel. 1 Chitty's Cr. Law, p. 644, 
 and authorities. 
 
 When a juror is challenged for principal cause, or for favor, the ground of the challenge 
 should be distinctly stated ; for without this the challenge is incomplete and may be wholly 
 disregarded by the court. It is not enough to say I challenge for principal cause or for favor, 
 and stop there ; the cause of the challenge must be specified. In Mann y. Glover, (2 Green's 
 
CHALLENGES OE JURORS. 164 6 
 
 The following is the form of a 
 
 Challenge to the array. 
 
 And hereupon the said A. B. doth challenge the array of the panel 
 aforesaid ; because he saith that \&c, stating the particulars of the cause 
 of challenge :] And this he the said A. B. is ready to verify; wherefore 
 he prayeth judgment that the said panel may be quashed. 
 
 The challenge to individual jurors ^vhich is called a challenge to the 
 polls,) is made verbally, whether it be a peremptory challenge, 
 or for cause. Indeed a challenge to the polls *for cause, sel- [*165] 
 dom occurs in practice ; for the counsel either for the defend- 
 ant or the prosecution, have only to intimate to the clerk of arraigns 
 or clerk of the peace that they desire that a particular juror or jurors 
 named may not be put upon the jury, and he will in general refrain 
 from calling them. 
 
 R. 195,) the court say: "A party cannot make a principal challenge, or a challenge to the 
 favor, by giving it a name. A challenge, whether in writing or by parol, must be in such 
 terms that the court can see, in the first place, whether it is for principal cause or to the 
 favor ; and so determine by what forum it is to be tried ; and secondly, whether the facts 
 if true, are sufficient to support such challenge." Again, the challenger must "state why 
 the juror does not stand indifferent ; he must state some facts or circumstances which, if true, 
 will show either that the juror is positively and legally disqualified, or create a, probability 
 or suspicion that he is not or may not be impartial. In the former case the challenge would 
 be a principal one, triable by the court ; in the latter, it would be to the favor, and submitted 
 to triers." 
 
 These views are sound and appropriate, and their observance would greatly promote order 
 and convenience in the determination of challenges. I am aware that challenges are not 
 unfrequently made in general terms, which merely indicate the supposed character of the 
 challenge, as for principal cause or for favor, but without designating the particular grounds 
 by which, if at all, they must be sustained. In this posture of the question, as far as a ques- 
 tion can be said to have been made, the parties proceed to the examination of witnesses 
 before the court or triers, as the case may be. No issue has been joined, and no matter of 
 fact alleged by either party. What is to be tried 1 It can hardly be determined in such a 
 state of things whether the question is one of fact or of law, and the proceeding is- obviously 
 inconvenient and irregular. Challenges for principal cause may become part and parcel of 
 the record, and should therefore be made in due form. They may be demurred to, and unless 
 some cause, sufficient of itself to raise the legal presumption of unindlfierence is alleged, the 
 challenge must of course be overruled. But the opposity party is not bound to demur ; he 
 may take issue on the facts stated as ground for the challenge, or may counterplead new 
 matter in avoidance. Thus an issue of fact may be joined, which must be decided upon the 
 evidence to be adduced by the respective parties. By pursuing the orderly mode of requir- 
 ing the challenger to specify the grounds of his challenge, and the opposite party to demur, 
 take issue or counterplead, questions of law and fact will be kept distinct, and, as I appre- 
 hend the convenience of the parties as well as that of the court will be greatly promoted. 
 
 The case of Mama v. Glover, has not been referred to as containing any new doctrine, but 
 because it presents a terse summary of the law on this subject. All challenges, except such 
 as may be made peremptorily, are for came; and unless some cause is stated by the chal- 
 lenger, the objection cannot justly be called a challenge, nor should it be regarded as such. 
 
165 JURORS. 
 
 (i) Petty jury charged. 
 
 When the challenges (if any) have been disposed of, and a full jury 
 have been sworn, the clerk of the arraigns at the assizes, or the clerk 
 of the peace at sessions, in cases of treason and felony, and in cases of 
 misdemeanors if no counsel be employed for the prosecution, charges 
 the petty jury with each case, thus : " Gentlemen of the jury : the pri- 
 soner stands indicted by the name of A. B. [Me of, &c] for that he on 
 the" \&c. as in the indictment, to%e end.] "Upon this indictment he 
 has been arraigned, and upon his arraignment he has pleaded not guil- 
 ty, and for his trial has put himself upon his country, which country 
 you are : Your charge therefore is, to inquire whether he is guilty of 
 the [/ehny] whereof he stands indicted, or not guilty, and to hearken 
 to the evidence." 
 
 By stat. 14 & 15 Vict. c. 19, s. 9, reciting that by the stat 12 & 13 
 Vict. c. 11, and that Act, provisions were made for the more exem- 
 plary punishment of persons who should commit certain offences after 
 one or more previous conviction or convictions for the like or other 
 offences, and it was expedient to define the time of charging the jury 
 to inquire as to such previous conviction or convictions : it is enacted, 
 " that it shall not be lawful on the trial of any person for any subse- 
 quent offence, where a plea of not guilty shall have been entered on his 
 behalf, to charge the jury to inquire concerning any previous convic- 
 tion, until they shall have inquired concerning such subsequent offence, 
 and shall have found such person guilty of the same ; and whenever 
 in any indictment any previous conviction shall be stated, the reading 
 of such statement shall be deferred until after such finding as aforesaid : 
 provided, that if upon the trial of any person for any such subsequent 
 offence as aforesaid, such person shall give evidence of his good charac- 
 ter, it shall be lawful for the prosecutor, in answer thereto,-to give evi- 
 dence of the conviction of such person, for the previous offence or of- 
 fences, before such verdict of guilty shall have been returned, and the 
 jury shall inquire concerning such previous conviction or convictions 
 at the same time that they inquire concerning such subsequent of- 
 fence." [1] 
 
 [1] In New- York, by the revised statutes, a copy of the minutes of any conviction, with 
 the sentence of the court thereon, entered by the clerk in whose custody such minutes shall 
 be, under his official seal, together with a copy of the indictment on which such conviction 
 was had, certified in the same manner, is declared to be evidence in all courts and places of 
 such conviction, in all cases in which it shall appear by the certificate of the clerk, or other- 
 wise, that no record of the judgment on such conviction has been signed and filed. , 2 R. S. 
 739, § 10. 
 
 The statute also requires the judgment of the court upon any conviction to be entered in 
 the minutes of the court; and requires the clerk to send a certified transcript of the entries 
 in the minutes, of convictions and sentences thereon, to the secretary of state. An exem- 
 plification of which transcript, under the seal of the secretary of state, it is declared shall bo 
 
PETTY JURY CHARGED. 165—1 
 
 The recital here makes no mention of prosecutions for subsequent 
 felonies after a previous conviction for felony within stat. 7 & 8 Gr. 4, 
 
 sufficient evidence on the trial of any person for a second or subsequent offence, of the con- 
 viction stated in such transcript. Id. 738, § 5 to 8. 
 
 It has been held that it is no objection to the validity of a record of conviction by the gen- 
 eral sessions, that the judge who signed it was not such when the conviction took place, 
 but received his appointment afterwards. 1 Hill, 261. 
 
 It is also provided by statute that whenever any conviction shall be had before any court 
 of special sessions, held in any other county than New- York, the magistrates shall make a 
 certificate of such conviction, briefly stating the offence charged, and the conviction and judg- 
 ment thereon, and if any fine has been collected, the amount thereof, and to whom paid. 
 This certificate is to be filed in the office of the county clerk within twenty days after the 
 conviction ; and when so made and filed, such certificate, or a certified copy thereof, is made 
 evidence in all courts and places of the facts stated therein. 2 R. S. 117, §§ 38, 39, 40. 
 
 It has been decided that a certificate of conviction in the form directed by the above sec- 
 tion of the statute, and which was filed in the clerk's office within the prescribed time, is 
 competent evidence of the facts therein stated ; although it does not contain evidence that 
 the court had obtained jurisdiction over the person of the prisoner. The People v. Powers, 
 7 Barb. 462. Such a certificate being made evidence, by statute, of the facts contained in 
 it, cannot be contradicted by parol evidence showing that there was in fact no trial and con- 
 viction. Yet it seems that a party may so far contradict a record of conviction by a court o f 
 inferior jurisdiction, as to prove that the court had no jurisdiction of the offence, or of the 
 person of the prisoner. Ibid. 
 
 General character was allowed in evidence for the defendant on trial for a capital offence ; 
 and per Parsons, C. J., it is admissible for the defendant in all criminal prosecutions, which 
 Sewall v. Parker, Js. doubted. Commonwealth v. Hardy, 2 Mass. Rep. 311, 318. This may 
 be encountered by evidence on the part of the prosecution ; but no evidence can be given 
 against the defendant's good character, till he has put it in issue, by calling witnesses on his ■ 
 part. Per Parsons, C. J., in Commonwealth v. Hardy, 2 Mass. Rep. 317, 318. It was de- 
 nied that it is admissible in actions or informations for penalties; but said to be confined to 
 trials for crimes subjecting to corporal punishment. Per Judge Owsley, in Givens v. Brad- 
 ley, 3 Bibb, 196. It is said by other authorities to be admissible in all criminal cases where 
 character is in jeopardy. 2 Stark. Ev. pt. 4, p. 365 ; adopted per Daggett, J., in Humphrey 
 v. Humphrey, 7 Conn. Rep. 118, 19. 
 
 Testimony cannot be given in reply, of conversations heard since the commencement of 
 the prosecution, though they relate to the prisoner's character before the alleged crime. 
 Carter v. The Commonwealth, 2 Virg. Cas. 169. On trial of an indictment for keeping a dis- 
 orderly house, proof is inadmissible, that the neighbors generally complained of it as dis- 
 turbing them. It is no more than general reputation of a disorderly house, which is inad- 
 missible. Commonwealth v. Stewart, 1 Serg. & Rawle, 342. 
 
 It was said by an Irish judge, (Smith, B.,) on trial for murder, " Character is of great 
 weight in every case, and requires particular attention when the charge is grounded on cir- 
 cumstantial evidence. It creates a greater degree of doubt than where the prosecution is 
 supported by direct evidence. In the former case, character ought to be particularly at- 
 tended to, because the jury is more or less embarrassed, and called upon to weigh the ease 
 with more scruple and doubt, from the very nature of the testimony on the part of the 
 crown." Bex v. Crawley, Dublin Oyer and Terminer, 40 Geo. 3, Maonally's Ev. 679. 
 
 Other authorities speak with more diffidence. It " ought never to have any weight ex- 
 cept in a doubtful case." 1 Stark. Ev. 35. Character cannot defeat the force of strong cir- 
 cumstances. Freeland's case, before Radcliff, mayor. Gen.. Sess. N. Y, 1 C. H. Rec. 82, 83. 
 But the same learned judge allowed that it should overcome slight evidence of scienter in a 
 case of forgery. James' case, N. Y Gen. Sess. Aug. 1816, 1 C. H. Rec. 132, 133. General 
 good character has weight in all cases, where the facts are doubtful, or admit of different 
 interpretations. But where the testimony is positive and satisfactory to the jury, it cannot 
 
165—2 TRIAL. 
 
 c. 28, s. 11. But as the enacting part is general, — " on the trial of any 
 person for any subsequent offence,"— there is no doubt this section 
 would be holden to apply to it. 
 
 [*166] *SECTION II. 
 
 THE TRIAL. 
 
 Before the trial is commenced, it may be necessary for the prosecu- 
 tor or prisoner to make some application to the court. The prosecutor 
 may move to postpone the trial, on account of the absence of a material 
 witness ; and if the absent witness be one of those who were examined 
 before the committing magistrate, the judge has an opportunity of as- 
 certaining from the deposition, whether he is a material witness or not; 
 but if he were not examined before the magistrate, the judge in that 
 case will require an affidavit, stating what the witness is expected to 
 prove.(a) Where, to account for a witness being unable to attend, a 
 surgeon made affidavit that the witness was the mother of an unweaned 
 child, which was afflicted with inflammation of the lungs, and that the 
 child could neither be brought to the assize town, nor be separated 
 from its mother, without danger to its life : this was deemed sufficient 
 ground for postponing the trial.(i) But where, upon a prisoner being 
 
 (a) R. v. Savage et al, 1 Oar. & K. 15. (b) R. v. Savage et al, 1 Car. & K. "75. 
 
 avail. Said on a trial for murder, per Story, J. in U. States v. Freeman, 4 Mason, 510. Per 
 Parsons, C. J. in Corwnonwealth v. Hardy, 2 Mass. Rep. 317. Again; though the case be 
 clear against the prisoner, yet character is admissible ; but unless the evidence is dubious, 
 or the testimony presumptive, general character is entitled to but little 'weight. The State 
 v. Wells, 1 Coxe, 424, 429. Per Savage, C. J. in the People v. Vane, 12 Wend. 82. It can- 
 not always avail against a circumstantial case, which may sometimes be so strong as to over- 
 come positive testimony; (The Struggle v. The United States, 9 Cranch, 11;) but good char- 
 acter alone should uniformly be allowed to outweigh the mere testimony of an accomplice. 
 Per Savage, C. J. in the People v. Vane, 12 "Wend. 82. 
 
 On the other hand, where the recorder, on a trial for grand larceny, charged that, from 
 the age of the prisoner, it was evident that he must have acquired a character of some kind ; 
 that if it was good, it was in his power to have shown it ; and his omission to offer any evi- 
 dence on that point, was a circumstance which the jury ought to consider as weighing 
 stronly against him ; on error, this was holden well. The testimony on the part of the 
 prosecution was that of an accomplice. Savage, C. J. said, "had the witness implicated 
 some respectable citizen whose character was above reproach, can there be a doubt that 
 good character alone would have been a perfect shield? A man is not to be convicted of a 
 crime because he has a bad character, or no character; but, in cases like the present, char- 
 acter becomes important; and where no such evidence is produced, the presumption is, it 
 cannot be produced. The further inference is, that the defendant is a man of bad character, 
 and would naturally be associated with such men as the witness." The People v. Vane, 12 
 Wend. 18, 82. 
 
TRIAL. 166 
 
 about to be tried for carnally knowing a girl of only six years of age, 
 an application on the part of the prosecution was made to postpone the 
 trial, until the child could be instructed as to the obligation of an oath : 
 Pollock, C. B., refused it.(a) And where the trial had been postponed 
 twice, on account of the absence of a witness, and at the third assizes it 
 - appeared, that notwithstanding the most diligent inquiry, he could not 
 be found, and one of the deponents stated that he heard that he had 
 embarked for India, as a soldier : Maule, J., on application of the pro- 
 secutor, discharged the prisoners, and discharged the prosecutor's re- 
 cognizances, notwithstanding the prisoners opposed it.(5)[l] 
 
 (a) R. v. Nicholas, 2 Car. & K. 246. (6) E. v. Bridgman et al, Car. & M. 271. 
 
 [1] In New York, it is provided by statute, if any prisoner indicted for any offence triable 
 in the court of sessions, and committed to prison, whose trial shall not have been postponed 
 at his instance, shall not be brought to trial before the end of the next term of the court of 
 sessions which shall be held in the county in which he is imprisoned after such indictment 
 found, he shall be entitled to be discharged, so far as relates to the offence for which he was 
 committed. 
 
 If any prisoner indicted for any offence not triable in a court of sessions, but which may 
 be tried in a court of oyer and terminer and committed to prison, whose trial shall not have 
 been postponed at his instance, shall not be brought to trial before the end of the next court 
 of oyer and terminer which shall be held in the county in which he is imprisoned, after such 
 indictment found, he shall be entitled to be discharged, so far as relates to the offence for 
 which he was committed. 
 
 If satisfactory cause shall be shown by the district attorney, to any court to which appli- 
 cation shall be made under either of the two last sections, for detaining such prisoner in cus- 
 tody or upon bail until the sitting of the next court in which he may be tried, the court shall 
 remand such prisoner, or shall hold him to bail, as the case may require. 
 
 "Whenever the trial of an indictment shall be postponed by the court in which the same 
 shall be pending, it shall be the duty of the district attorney to cause all the witnesses on 
 the part of the people in attendance, deemed by him material, to be recognized to appear at 
 the time and place to which such trial shall have been postponed. 2 N". T. Rev. Stat. p. 919, 
 920, s. 30, 31, 32, 33. 
 
 In Pennsylvania, if any person shall be committed for treason or felony, and shall not be 
 indicted and tried some time in the next term of oyer and terminer, general jail delivery, or 
 other court, where the offence is properly cognizable after such commitment, it shall and 
 may be lawful for the judges or justices thereof, and they are hereby required upon the last 
 day of the term, sessions, or court, to set at liberty the said prisoner upon bail, unless it shall 
 appear to them upon oath or affirmation, that the witness for the commonwealth, mention- 
 ing their names, could not then be produced ; and if such prisoner shall not be indicted and 
 tried the second term, sessions, or court, after his or her commitment, unless the delay hap- 
 pen on application, or with the assent of the defendant, or upon trial shall be acquitted, he 
 or she shall be discharged from imprisonment. Provided always, that nothing in this act 
 shall extend to discharge out of prison any person guilty of, or charged with treason, felony, 
 or other high misdemeanor in any state, and who by the confederation, ought to be delivered 
 up to the executive power of suoh state, nor any person guilty of, or charged with a breach 
 or violation of the laws of nations. Act of Feb. 18th, 1785, s. 3; 2 Smith's Laws, 275; Pur- 
 don's Dig. 6th ed. 533. 
 
 In Virginia it "is required, whenever any prisoner committed for treason or felony, shall ap- 
 ply to the court the first day of the term by petition or motion, and shall desire to be brought 
 to his trial before the end of the term, and shall not be indicted in that term, unless it ap- 
 
166—1 TRIAL. 
 
 In like manner the prisoner may apply to postpone the trial, on ac- 
 count of the absence of a material witness. And where a witness for 
 the prosecution was absent, who had been examined before the commit- 
 ting magistrate, and the prisoner stated in an affidavit that it would be 
 material to his defence that such witness should be cross-examined by 
 his counsel: Cresswell, J. (after conferring with Patteson, J.) pqstponed 
 the trial, saying that he would not require an affidavit of any diligent 
 search having been made for the witness, as the witness being bound 
 over to attend, the prisoner would naturally expect he would appear.(a) 
 But where, upon an indictment for murder by poison, the counsel for 
 
 the prisoner applied to postpone the trial, on the ground that 
 [*167] the names of witnesses were on the back of the *indictment, 
 
 who were not examined before the magistrate, and who it was 
 understood were to be called to prove previous attempts of the prisoner 
 to poison the deceased, and it was material for the prisoner that those 
 alleged attempts should be investigated, and the character of the wit- 
 ness inquired into : Alderson, B., after consulting'with Bolfe, B., refused 
 the application as unprecedented.^) [1] 
 
 (a) R. v. Macarthy, Car. & M. 625. (b) R. v. Johnson, 2 Oar. & K. 354. 
 
 pear by affidavit that the witnesses against him cannot be produced in time, the court shall 
 set him at liberty, upon his giving bail in such penalty as they shall think reasonable, to ap- 
 pear before them at a day to be appointed, of the succeeding term. , Every person charged 
 with such crime, who shall not be indicted before or at the second term after he shall have 
 been committed, unless the attendance of the witnesses against him appear to have been 
 prevented by himself, shall be discharged from his imprisonment, if he be detained for that 
 cause only; and if not tried at or before the third term after his examination before the jus- 
 tices, he shall be forever discharged of the crime, unless such failure proceed from any con- 
 tinuance, granted on motion of the prisoner, or from the inability of the jury to agree on their 
 verdict. R. C. of Va., c. 169, s. 28. 
 
 The revised statutes of Michigan (tit. 31, ch. 164, sec. 30,) provide: Every person held in 
 prison upon an indictment, shall, if he require it, be tried at the next term of the court after 
 the expiration of six months from the time when he was imprisoned, or shall be bailed upon 
 his own recognizance, unless it shall appear to the satisfaction of the court, that the witnesses 
 on behalf of the people have been enticed or kept away, or are detained and prevented from 
 attending court by sickness, or some inevitable accident. 
 
 Occasionally, the delay of a trial, and even the discharge of a jury becomes necessary, 
 in order to complete the examination of witnesses. Thus, if a witness be seized with sud- 
 den illness, so that a full examination cannot be had, the true course seems to be for the 
 party to move a postponement of the trial, which it is presumed the court may grant, even 
 if it require the discharge of the jury, and a re-trial. But where the cross-examination of 
 the plaintiff's witness, after being commenced, was interrupted by a fit, so that it could not 
 be completed, and the plaintiff was prevented from re-examining, yet neither party re- 
 questing a postponement, the court refused a new trial, on the application of the plaintiff, 
 who, notwithstanding, choose to go on with the trial, and take 'the chance of a verdict 
 against him. He complained that he was deprived of all opportunity to re-examine, to cer- 
 tain points coming out on the cross-examination, which required explanation by a re-exam- 
 ination. Depeyster v. The Columbian Ins. Co., 2 Cain. Rep. 85. 
 
 [1] The doctrine of putting off, postponing, or continuing causes or trials, as it is called in 
 the legal nomenclature of different states and countries, rests much upon the discretion and 
 
TRIAL. 167 
 
 In strictness, all applications of this kind, whether on the part of the 
 prosecutor or prisoner, should be made before the jury are sworn. But 
 
 rules of practice of the court where the cause is depending, especially after the first applica- 
 tion to postpone, or where this is attended with circumstances which take it out of the or- 
 dinary course. The putting off a trial upon a first application after issue joined, is held to 
 be so much a matter of discretion, that a refusal cannot be assigned for error. Woods v. 
 Young, 4 Cranch, 237. In this case the application was a second one. founded on a rule of 
 practice of the circuit court for the district of Columbia ; but the rule is laid down generally 
 and without qualification, that the refusal to continue a cause cannot be assigned for error, 
 because it is merely a matter of favor and discretion. This was doubted by the general 
 court of Virginia, in Smith v. The Commonwealth, (a case of refusal to put off the trial of a 
 prisoner indicted for murder, 2 Tirg. Cas. 6,) though they agreed it was matter of discre- 
 tion ; and that error would not lie unless the cause was a very plain one. The same doubt 
 was expressed in Bolt v. The Commonwealth, id. 156, (a case of forgery;) and the writ of 
 error denied, because the postponement was properly refused, Also in Blesdoe v. Common- 
 wealth, 6 Rand. 673, 674, a like doubt is expressed. 
 
 The doctrine of putting off trials is the same, in principle, both in civil and criminal causes. 
 Rex v. V Eon, 1 W. Bl. 515, per Wilmot, J. 3 Burr. 1415. State v. Lewis, before Grimke, 
 J. 1 Bay, 1, 2. The People v. Kelly, Jud. Repos. 51. The People v. VermUyea, 7 Cowen'a 
 Rep. 369. 1 Chit. Cr. L. 490. Viol. Smith's case, 3 Wheel. Cr. Cas. 114, 171. The differ- 
 ence of course lies only in the different modes of proceeding, and the different incidents and 
 objects. The affidavit of the prisoner is receivable even n>a capital case. . Commonwealth v. 
 Knapp, 9 Pick. 496. Nor need he on a first application disclose what his witnesses will 
 swear. State v. Morris, 1 Tenn. Rep. 220. The common pecuniary terms, of necessity, must 
 be out of the question in criminal causes ; and "all the authorities agree," says Sutherland, 
 J. (7 Cowen, 390.) "that the matter is to be scanned more closely on account of the supe- 
 rior temptation to delay, and escape the sentence of the law." In the case of Lord Kilmar- 
 nock and others, (high treason, at a special oyer and terminer, Fost. 1, 2,) the common affi- 
 davit was presented about a week after the prisoners were arraigned. At a conference of 
 several judges, they agreed that in the common cases of trials in the circuit, affidavits of 
 this kind ought very sparingly to be admitted ; for in circuit trials, the prisoners, from the 
 time of their commitment, may and ought to be preparing for their defence. The place 
 where they are to be tried is in most cases well known, and they have likewise a reasona- 
 ble certainty of the time long before the circuits begin. But they deemed the principal case 
 an extraordinary one, from its distance and suddenness, and granted the motion. Notice is 
 held to be given by the warrant of commitment. Per Ld. Mansfield, 1 W. Bl. 515. Tet, 
 in general, a subpoena cannot issue for the prisoner till after indictment found; for before 
 this there is no cause in court. State v. Evans, 1 Tenn. Rep. 215, per Overton, J. Per Grif- 
 fith, J. in United States v. Moore, Wallace, 25. An exception exists under the peculiar con- 
 stitution and laws of the U. States ; (vid. 1 Burr's Tr. by Robertsen, 177 to 180 ; XT. States 
 v. Moore, Wallace, 23 ;) but it is anomalous ; and the statute of New- York, (2 R. S. 729, § 
 59,) gives a subpoena only on indictment found. Even in the TJ. States court a postpone- 
 ment was not denied for neglect to exercise this right, (U. States v. Moore, Wallace, 23) 
 .though it would hardly be safe to rely on that decision, perhaps, since the right is better 
 understood. In The State v. Lewis, (1 Bay, 1,) the prisoner was committed on a charge of 
 horse stealing, the day before the session. On being indicted and arraigned, his trial was 
 postponed for six months, viz, till the next session, on the common affidavit. But where 
 the prisoner (a forgerer) put off his cause on the common affidavit from September to June 
 and then moved again on an affidavit that, about three weeks before, he had mailod his sub- 
 poena for the witness, for whose absence the cause was first postponed, though he made a 
 special affidavit of what his witness would prove ; held that he had been negligent, and a 
 farther postponement was denied. Holt v. T/ie Commonwealth, 2 Virg. Cas. 156. So where 
 nine days had elapsed from finding a bill for horse stealing, and the prisoner had made no 
 effort to procure his witnesses, though they resided only 40 miles distant, his motion to post' 
 
 61 
 
167—1 TRIAL. 
 
 where the prisoner made the application after the jury were sworn and 
 charged, Oresswell thought that it might be done ; but the affidavit 
 
 pone was denied. State v. Evans, 1 Term. Rep. 211. In this ease tbe court declined hear- 
 ing a supplemental affidavit made by the prisoner, though they received such affidavits from 
 third persons. In The People v. Broad, (3 Cit. H. Recorder, 1,) the recorder of New-York 
 held that the affidavit made and presented on arraignment need not state the facts to be 
 proved by the absent witnesses. In The People v. Bohetaille, (5 id. 11-1,) the prisoner, charged 
 with grand larceny, swore he expected his father from Upper Canada with witnesses as to 
 his character. The affidavit being holden insufficient to warrant a postponement, the court 
 (Colden, mayor, presiding) refused to hear a supplemental affidavit. The prisoner was com- 
 mitted one day, and a bill was found the next. On the third day a motion was made to 
 postpone the trial for the absence of the prisoner's witnes at Boston, and allowed, though 
 due diligence was not averred, nor that he expected to procure his witness at the next 
 term; (The People v. Lee, 1 Wheel Cr. Cas. 11.) And where a subpoena has been .served 
 and disobeyed, the trial will not be ordered till an attachment is issued and time given for 
 its execution and return. TJie People v. Bush, 1 Wheel. Criminal Cases, 131. In The Peo- 
 ple v. Brigham, 1 Cit. H. Rec. 30, which was a case of grand larceny, the court of sessions 
 of the city of New- York, (Radcliff, mayor, sometime a justice of the supreme court, presid-. 
 ing,) received the prosecutor's affidavit of the circumstances, in reply to an affidavit of the 
 prisoner, naming the witness and saying the prisoner expected to prove by bim that the 
 article, a great coat, was taken by mistake for his own. The prisoner's affidavit also stated 
 the witness to be material, and no neglect was imputed. The affidavit received in reply 
 went merely to establish that the prisoner could not be mistaken, as he had been at the 
 prosecutor's house several times, who had never seen him with a great coat on. In The 
 People v. Hettick, (1 Wheeler's Criminal Cases, 26,) before the same court, (Riker, recorder, 
 presiding,) the prisoner was indicted for larceny of a trunk and $4000, committed on board 
 the steamboat between Albany and New- York. The affidavit of the prisoner was in the 
 common form, swearing to materiality generally ; but naming the witnesses and describing 
 them as residing at Philadelphia. No neglect in not procuring the witnesses was imputed. 
 Yet the court refused the motion, but gave time to execute a commission by consent. The 
 prisoner not having availed himself of the commission, moved to postpone again at a subse- 
 quent day; but the motion was denied. The courts in Indiana require the prisoner to state 
 the facts he expects to prove by the absent witness in the first instance. The Common- 
 wealth v. FuUer, 2 Wheel. Cr. Cas. 223, 4, 5. In The People v. Catherine Foote, (1 Wheel. 
 Cr. Cas. 10, 12, N. York sessions, Riker, recorder, presiding,) which was an ■ indictment for 
 keeping a disorderly house, the prisoner, on being arraigned at the term in which the in- 
 dictment was found, made the common affidavit. In reply, the district attorney insisted 
 upon a special affidavit stating what the absent witness would prove ; and offered to admit 
 any fact which should be so stated, as proved to the jury. The prisoner declining to make 
 such an affidavit, the court denied the postponement. 
 
 These cases in the sessions of New-York were passed upon by learned and experienced 
 judges ; and on the strict practice of the criminal courts of that city, the case of the People 
 v. Vermih/ea probably proceeded at the circuit holden by Edwards, C. Judge, In that case, 
 so often cited from 1 Cowon's Rep. 369, the practice underwent a thorough review. By it 
 the doctrine, both in civil and criminal cases, seems to be put completely on the same foot- 
 ing. Supplemental affidavits are recognized as admissible, and general affidavits as enough 
 in the first instance, and not to be done away by a cross inquiry into their possible untruth 
 in swearing to materiality. 
 
 In The Commonwealth v. Millard, (1 Mass. Rep. 6,) the prisoner had suffered a whole va- 
 cation after indictment found to elapse, without any endeavor to obtain his witness, who re- 
 sided in a neighboring state. The court refused to put off the trial. They assign, it is true, 
 as the main ground, that the witness resided beyond the reach of their process. But this 
 would not, of itself, be enough in New York, since the case of The People v. Verm&yea ; 
 and especially since our statute allowing a commission as in oivil cases. 
 
TRIAL. 167—2 
 
 produced being insufficient, the trial proceeded, and the defendant was 
 convicted.(a) 
 
 So, a defendant may move that money which has been taken from 
 him by the constable, &c, may be delivered up to him, and the court 
 will make the order accordingly, although the money is sought to be 
 retained to pay the expense of conveying the defendant to prison ;(b) 
 but if it appear, or be probable, that such money was part of the pro- 
 duce of the offence with which the prisoner is charged, the court usu- 
 ally refuse the application. 
 
 Either party, immediately after the jury are charged, or indeed at 
 any time during the trial, may apply to have the witnesses for the op- 
 posite party sent out of court ; and the court will make an order accord- 
 ingly. The attornies of the respective parties, however, are never 
 included in this order ;(c) nor is the surgeon or any other witness, who 
 is to depose to mere matter of opinion, and not to facts. If the witness 
 do not withdraw when ordered, or afterwards return into court before 
 he is called for, and is present during the examination of some other 
 witness, it is discretionary with the judge whether he will allow him 
 to be examined or not.(cZ)[2] 
 
 (a)R. v. Fitzgerald et at, 1 Car. & K. 201. C. 430. 
 
 (b) R. v. Bass, 2 Car. k K. 882. (d) Parker v. M l William, 6 Bing. 683. R. 
 
 (c) Pomeroy v. Baddeley, Ry. & M., N. P. v. Coley, 1 Moody & M. 329. 
 
 It was decided in the circuit court of the United States, that a district attorney was not 
 entitled to continue a cause for the purpose of attaching a witness, unless he would make 
 affidavit that the witness was material. United States v. Frmk, 4 Day, ill. 
 
 It is the province of the court, in which the trial takes place, to judge of the truth or suf- 
 ficiency of the causes assigned for a motion for a continuance or removal of a trial. It must 
 be so. Otherwise it would be in the power of a prisoner to postpone a conviction indefi- 
 nitely, however clear his guilt, by making affidavits with the requisite matter on the face of 
 them. The temptation to perjury is so strong in capital cases, that it is an established prac- 
 tice for the court to distrust affidavits after one continuance or removal, and scrutinize them 
 narrowly. See The State v. Bildreth, 9 Ired. 429 ; Macjruder v. Snapp, 4 Eng: 108; Holmes 
 v. Tlie People, 5 Gilman, 478; Spencev. The State, 8 Blackf. 282. 
 
 [2] Where witnesses are ordered to withdraw, each party furnishes his list of them to the 
 sheriff, whose duty it then becomes to take charge of them, and see that they are kept out 
 of the hearing of each other's examination ; and if the order be violated, he will then know 
 It and apprise the party. If the sheriff negleet his duty, the party will not be reponsible. 
 If certain of the witnesses be not in attendance, but are coming in, the party in whose be- 
 half they are to testify must either put their names on the list or at his peril, see that they 
 do not violate the order, by coming into court before they are called to testify. If there be 
 no pretence that the newly arrived witnesses were in court, and hearing any of the testi- 
 mony, then it is no objection that their names were not furnished to the sheriff, and they 
 may, notwithstanding, be sworn. Those absent when the order to withdraw is made, can- 
 not be embraced by it. If the party do not furnish a list to the sheriff, he is responsible that 
 the witnesses present shall obey the order to withdraw. Anon., 1 Hill's Rep. 254, 5 6. In 
 this case, though lists were given to the sheriff, and kept filled out as the witnesses arrived 
 yet owing to a continual arrival of witnesses who were to speak to character, the order was 
 accidentally violated by some of them. In the exercise of its discretion, the court heard 
 
167 — 3 TRIAL. 
 
 them; and it was held well, especially in a case of general character, which O'Neall, J. hardly 
 thought within the rule requiring witnesses to be separated, there being such slight differ- 
 ence in the facts, if any ; all the witnesses being bound to speak of general reputation. Id. 
 356. He remarks that the object of separating witnesses is to afford the means of discover- 
 ing discrepancies in the different accounts, which (if not true) the witnesses will give of the 
 same transaction, which he seems to'consider as inapplicable to these inquiries into charac- 
 ter. Id. But quere, where there may be, as there commonly is, a cross-examination as to 
 particulars. See farther as to this practice, Woods v. ATPheran, Peek, 371. 
 
 An attorney for the party will be excepted from the order. Everett v. Lowdham, 5 Carr. 
 & Payne, 91. In this case he was mentioned as one of the witnesses wlio had been subpoe- 
 naed, and express permission obtained for him to remain. Jn Sex v. Webb, (3 Stark. Ev. 
 1733,) the attorney, who remained, was excluded as incompetent, but lie was not excepted 
 from the order. 
 
 It is always in the discretion of the judge, to receive a witness who remain in court after 
 an order to withdraw, except in the exchequer, where he is peremptorily excluded. Par- 
 ker v. if Williams, 6 Bing. 683 ; 4 Moore & t'ayne, 480. In this case, the witness was in 
 during the plaintiff's opening speech, but said he did not hear it, being deaf, though he. 
 seemed capable of hearing a low tone. The court would not interpose and grant a new trial, 
 however, because it was a matter entirely lor the presiding judge at nisi prius. They men- 
 tioned several eases where it would be proper, as where the witness is not contumacious 
 remains in court accidentally, or by contrivance of the opposite party. It is, says Mr. Jus- 
 tice Gaselee, (4 Moore & Payne, 483,) purely a question of nisi prius practice. The following 
 case is to the same point: The witness, who disobeyed the order, was received; but confin- 
 ed to facts distinct from those stated by other witnesses in her presence. Beamon v. Ettice 
 4 Carr. & Payne, 585. In Sex v. CoUey, (1 Mood. & Malk. 329,) one of the withdrawn wit- 
 nesses was called in to exhibit a plan, and stayed and heard some witnesses, and he was ex- 
 amined. Littledale and Gaselee, Js held that the receipt of the witness depended on cir- 
 cumstances. In Sex v. Brown, (arson) cited in a note to Beamon v. Elkce, supra, a witness 
 for the prisoner had retired, but returned in open violation ol the order. Yet he was ex- 
 amined. In the exchequer, the rule excluding a witness who has disobeyed the order is in- 
 flexible. Attorney General v. Bulpit, 9 Price, 4. 
 
 Witnesses who have remained in court, a by-stander for example, notwithstanding the 
 order to withdraw, may still be called to impeach the character of a witness sworn and ex- 
 amined in his presence. Such an accidental witness is not within the rule, and ii he be not 
 received, it would be error. Woods v. M'Pheran, Peek. 371. 
 
 In North Carolina, it has been held that a defendant in a criminal case could not, at com- 
 mon law, and cannot now claim as a right that the witnesses should be separated ; nor can 
 the state, though the crown might, by the common law. It is now granted to both as mat- 
 ter of indulgence. Hence, though one of the prosecutor's witnesses remain in court after an 
 order made to withdraw at the prisoner's request, yet the witness may be sworn ; and so it 
 would be of the prisoner's witnesses. Such is the spirit of the constitution ol North Caro- 
 lina. It will not extend a greater right to the state, in this and the like respects, than it 
 accords to the prisoner. The witnesses may therefore be sworn, on either side, though suf- 
 fered to remain even by design of the party. The State v. Sparrow, 3 Murph. 487. Hen- 
 derson, J. in this case, doubttd the right to exclude for incompetency in any case, as a eon- 
 sequence of the witnesses not obeying the order. He had never read nor heard of such a 
 consequence. Ho did not find that this was sanctioned by the cases in Foster, Chitty's Cr. 
 Law, Bacon's Abr. or Peake' Ev., which he had examined. They all speak of sending out 
 witnesses, but do not speak of incompetency as a consequence of disobedience. But the 
 judges laid the main stress on the clause in the constitution giving the accused a right to 
 witnesses, which he was entitled to call in the ordinary way without, as they thought, in- 
 tending to recognize the refusal to withdraw as a ground of exclusion, though, when the 
 list should be called over, a witness were omitted even by design. This would not go so far 
 ua to let in witnesses at any time, after arguments closed, or after the charge. The right 
 secured to the prisoner by law must be claimed at the proper time, i. e. when he is called 
 
CASE FOE PROSECUTION. 167—4 
 
 (a) Case stated, and evidence for the prosecution. 
 
 If counsel be engaged for the prosecution, (a) he addresses 
 the jury, states *the case to them, and then calls the witnesses [*168] 
 to prove it. 
 
 As to the examination, cross-examination, and re-examination of wit- 
 nesses, they belong more properly to a treatise on evidence ; and I have 
 treated of them so fully in other works, (b) and of the rules by which 
 they are regulated^ that I must refer the reader to them for the law 
 upon these subjects. [1] 
 
 (a) It is a bad. a miscbievious economy to upon them, so ill becoming their position, 
 cast upon the judge, recorder, or chairman, their station, and the nature of their office, 
 the task of examining the witnesses, and, in I say it is a bad, a mischievous economy; it 
 appearance at least, of conducting the prose- may save some money to the county or bo- 
 cution against the prisoner. It must be inor- rough fund; but it must tend to lower the 
 tifying to the judge to find that he, who is sense the people entertain of the fair, the im- 
 deemed the prisoner's counsel, or who at all partial manner in which justice is really ad- 
 events is to hold the scales evenly between ministered to them, and create a distrust 
 the prosecutor and the prisoner, should be -where there should be, and there deserves to 
 thrust forward into the place of prosecutor, be, unbounded confidence. I hope and trust 
 to examine the witnesses, and to play the this practice, which I most heartily depre- 
 advocate against the very party for whom he cate, will soon cease to exist. 
 is deemed counsel. Those who know the (6) Examination, Arch. PI. & Ev. Civ. Act. 
 high honor of those learned persons, their 481 ; 1 Arch. N. P. 33 ; Cross-examination, 
 anxiety that all trials before them should be Arch. PI. & Ev. Civ. Act. 485; 1 Arch. N. 
 conducted in the true spirit of English fair- P. 38; Re-examination, Arch. PI. & Ev. Civ. 
 ness, may readily imagine the dislike, disgust, Act. 488 ; 1 Arch. N. P. 40. 
 they must feel, when they find a duty cast 
 
 on to make his defence. The answer to a subsequent offer of testimony would be, that the 
 party had not availed himself of the proper opportunity ; and his neglect should preclude him. 
 Yet, doubtless, a refusal by either party to comply with an order of separation would make 
 an unfavorable impression, would be fairly open to observation, and go to the credit of the 
 witnesses. Id. 490 to 493. 
 
 On a trial of slander for a libel, before Best, C. J. with not guilty, and three justifications, 
 on the first witness being called for the defendant, the plaintiff's counsel applied for direc-' 
 tions for the rest of the witnesses to go out of court. Best, C. J. " I confess, that for one, I 
 wish the same rule prevailed here as prevails in the houses of lords and commons, where no 
 witnesses are allowed to be present, except the person who is under examination. Taylor 
 v. Lawson, 3 Carr. & Payne, 543. But in Beamon v. Ellice, (4 Carr. & Payne, 585,) Taunton, 
 J. said there is a great deal of time lost by sending witnesses out of court ; and I thiuk that, 
 in general, it does not answer any good purpose." 
 
 On the whole, it seems, that although the right to exclude witnesses for wilful disobedi- 
 ence of the order be well established, yet judges are quite cautious of exercising the power. 
 The reason, probably, is, because a party may, in that way, without any fault of his own, be 
 put in very great hazard, by losing important testimony. He cannot prevent the misbeha- 
 viour of the witness. 
 
 [1] The witness is first examined by the party producing him, after which the other party 
 is at liberty to cross-examine ; whereupon, the party producing the witness may re-examine. 
 
 On the primary examination of the witness, or, as it is generally called, his examination 
 in chief, you are bound at your peril to ask all material questions in the first instance ; and 
 if you omit this, it cannot be done in reply. No new questiou can be put in reply uncon- 
 
168 TRIAL. 
 
 If there be no counsel for the prosecution, the prosecutor has no 
 right to address the jury as counsel, particularly if he is to be exam- 
 ined as a witness himself in the course of the trial.(a) 
 
 (a) R. v. JBrice, 2 B. & Aid. 606. R. v. Milne, Id. 606 n. 
 
 neoted with the subject of the cross-examination, and which does not tend to explain it. If 
 a question as to any material fact has been omitted upon the examination in chief, the usual 
 course is to suggest the question to the court, which will exercise its discretion in putting it 
 to the witness. 1 Stark. Ev. 150. This rule is exemplified in its native rigor by the follow- 
 ing case : The counsel for the crown having, by direction of the court, called witnesses, 
 whose names appeared on the back of the indictment, and had them sworn to give the priso- 
 ner's counsel a chance of cross-examination ; but not examining them in chief, that the 
 prisoner's counsel having accordingly cross-examined, held that, after this, the counsel for 
 the crown could not examine them in chief, but only by way of re-examination, and there- 
 fore must confine himself to what arose out of the cross-examination. Rex v. Beezley, 4Carr. 
 & Payne, 218. 
 
 "With regard to closing the examination of the witness, it is matter of discretion whether, 
 after he is dismissed from the stand, he shall be examined farther. The People v. Mather, 4 
 "Wend. 249. And a new trial will not be granted, even where a witness is recalled and 
 re-examined after several others, and a lapse of 24 hours from his being dismissed from the 
 stand. Id. It is discretionary with a court, after charging a jury on a witness's testimony, 
 which is vague and indefinite, whether they will allow him to be called back to correct, 
 explain or render his testimony more plain and certain. Law v. Merrills, 6 Wend. 268 ; 9 
 Cowen's Rep. 65, S. C. The particular case was where the witness left it doubtful at what 
 precise time a usurious agreement had taken place. Id. This is a mere matter of practice, 
 and error will not lie upon the exercise of the discretion. Law v. Merrills, 6 Wend. 268. 
 
 So, in regard to the entire cause, "In strict practice, he who has the affirmative, ought to 
 introduce all the evidence to make out his side of the issue ; then the evidence of the nega- 
 tive side is heard, and finally, the rebutting proof of the affirmative, which closes the inves- 
 tigation. In doing this, neither side ought to be permitted to give evidence by piece-meal, 
 then to apply for instructions, and again to mend and add to his proof, until, by repeated 
 experiments, he shall make it come up to the opinion of the court. An adherence to these 
 rules, generally, will be found necessary in all courts of original jurisdiction ; and, without 
 them, confusion, loss of time,.andcaptious and irritable conduct must follow. 
 
 The general rule is adhered to with the greatest strictness in criminal cases. Thus, on 
 a prosecution for larceny, which was sustained in the first instance merely by the prisoner's 
 possession of the stolen goods,- the latter proved by his daughter that he bought the goods 
 of T. The prosecutor then called T. for the first time, but was restrained from Inquiring of 
 him any farther than to negative the safe,, for he was a witness in reply. On asking him 
 whether he did not see the prisoner steal the goods, the inquiry was stopped, as T. was not 
 called in chief, and in the first instance, as he should have been, to warrant his giving evi- 
 dence in chief. Being a witness in reply, he could only be received so far as his testimony 
 went to destroy the case set up by the prisoner. Rex v. Stimpson, 2 Carr. & Payne, 415.^ 
 
 After the plaintiff rested his cause, the defendant proposing to sum up, without introducing 
 any evidence on his side, the plaintiff was still allowed to add other witnesses on his part, 
 the court having strongly intimated that his action had not been sustained. Green v. Corn- 
 well, Mayor's Court, Riker, recorder, presiding, Jan, 1816, 1 C. H. Rec. 11. The admission 
 or rejection of a witness, after the case is closed, is mere matter of discretion. Error will 
 not lie on either ground. Frederick v. Gray, 10 Serg. & Rawle, 182. And under circum- 
 stances, a new witness may be received, oven after counsel have begun to address the jury; 
 and semb. a witness who lias been subpoenaed, but does not come before, may then, if the 
 judge chooso to allow it, bo received. Duncan v. McCullough, 4 Serg. & Rawle, 482. But 
 not, if one party has discharged bis witnesses, and one of them is not to be found, and the 
 
CASE FOR PROSECUTION. 168 — 1 
 
 Each witness is sworn in this form : — " The evidence you shall give 
 to the court and jury sworn, between our sovereign Lady Queen and 
 
 witnesses of the other party were all present, and might have been sworn. Id. Semb. the 
 judge may, in his discretion, allow witnesses to be sworn, who arrive after the testimony is 
 closed, and even as late as when the plaintiff's counsel rise, and begin to reply. Leggetv. 
 Boyd, 3 Wend. 316. The granting or refusing to delay a trial until absent witnesses arrive, 
 will equally be left to the judge's discretion. Legget v. Boyd, 3 Wend. 376. After the coun- 
 sel for the defendant had summed up, the prosecuting attorney was allowed to add other 
 testimony, it appearing that it was newly discovered. Sturdivanfs case, N. T. Gen. Sess., 
 Radcliff, mayor, presiding, July, 1816, 1 0. H. Rec. 110. 
 
 There is perhaps generally danger of injustice, in allowing the examination of witnesses to 
 be renewed, after both parties have rested. Witnesses, who generally attend with reluctance, 
 and can with difficulty be depended on as being in court on the call of the cause, and during 
 the trial, are apt to seize on such a crisis as an entire absolution from farther attendance, and 
 retire from court. The question whether the examination shall be opened, is, therefore, 
 often very far from standing merely upon a waste of the time of the court, or a mistaken 
 omission of a new discovery of evidence on the side proposing to open the case. It may 
 work a material wrong to the opposite party, who is thus perhaps left unable, even by his 
 own deposition, to explain wherein he is to suffer. To him it is many times of peculiar im- 
 portance that all the testimony should be heard, while his witnessess, and his entire means 
 of private and public explanation are present, or within his immediate reach. Tet, in all 
 cases, it is a matter of disrection with the judge, in any stage of the cause, before the jury 
 shall have retired, to allow the re-examination of witnesses, and perhaps receive additional 
 witnesses ; and it is generally taken as quite a hard measure of justice, when he refuses. 
 
 In cross-examinations, the object of which is to sift evidence, and try the credibility of 
 the witness, a great latitude is allowed in the mode of putting questions. The rule, how- 
 ever, is still subject to certain limitations. A witness cannot be cross-examined as to any 
 fact, which (if admitted) would be collateral, and wholly irrelevant to the matter in issue, 
 for the purpose of contradicting -him by other evidence, (in case he should deny the fact,) 
 and in this manner to discredit his testimony; and if the witness answers such an irrelevant 
 question before it is disallowed or withdrawn, the evidence cannot afterwards be withdrawn. 
 Phil. Ev. 210; 2 Campb. 638: 7 East, 108. 
 
 In the application of this rule, the principal thing to be considered will be, whether the 
 question is irrelevant to the points in issue between the parties. Phil. Ev. 210; 2 Campb. 
 638. 
 
 When a witness has been once sworn to give evidence the other party may cross-examine 
 him, though he gave no evidence for the party that called him. 1 Esp. N. P. 357. Phillipps' 
 Ev. 211. 
 
 And it is reported to have been ruled at nisi prius, that if a witness has been once ex- 
 amined by a party, the privilege of cross-examination continues in every stage of the cause ; 
 so that the other party may call the same witness to prove his case, and in examining him 
 may ask him leading questions. 4 Esp. N. P. 67. 
 
 In the case referred to, the witness might possibly have shown a strong bias in favor of 
 the first party that called him, and on this account perhaps a greater scope was granted to 
 the adverse party than is usually allowed. It may happen, on the other hand, that the 
 plaintiff calls a witness, unwillingly and from mere necessity, knowing him to be favorable to 
 the other side ; in such a case, to allow the defendant, on calling him up afterwards as his 
 own witness, to put leading questions, would be giving him an unreasonable advantage ; on 
 the contrary, the court might perhaps be induced to invest the plaintiff's counsel with some 
 of the powers of cross-examination, at the same time that it would probably oblige the de- 
 fendant's counsel strictly as his own and confine him within the limits of an examination in 
 chief. Phil. Ev. 211. 
 
 It has been decided that when a party cross-examines a witness, he makes him as much 
 
168—2 TRIAL. 
 
 the prisoner at the bar [or defendant,'] shall be the truth, the whole truth 
 and nothing but the truth : so help you God." 
 
 his own, as if he himself had called him, and therefore he could not introduce through him 
 any proof which would not have been legal, had the witness been originally produced on his 
 behalf; for instance, be cannot give parol proof, by the witness, of the. contents of a writing, 
 without showing notice to produce it. 2 Caines' Rep. 178. 
 
 The examination of witnesses, says Tilghman, C. J., is to be conducted in such a manner 
 as to discover the truth without taking any unfair advantage. The party who calls the wit- 
 ness examines him first, he is then cross-examined by the opposite party, after which, if ne- 
 cessary, the party who produced him may examine him again. The mouth of the witness 
 is not to be closed because the counsel omitted to ask a material question at first. It may 
 be necessary, in order to come at the truth of the case, to. examine him as to new matter, 
 and after that, there may be a second cross-examination.. The court, at their discretion, may 
 permit a witness to be examined by either party, over and over again, at any time during 
 the trial. 
 
 But they will take care to exercise this discretion, so as not to suffer any advantage to be 
 gained by trick or artifice. If the plaintiff should declare that he had finished his testimony, 
 in consequence of which the defendant should dismiss some of his witnesses, and then the 
 plaintiff should offer to produce new testimony which might perhaps have been contradicted 
 by the witnesses who had been dismissed, the court would not suffer hum to avail himself of 
 such disingenuous conduct. 5 Binney (Penn.) Rep. 488. See 4 Binney, 198. 
 
 OP THE EE-EXAMINATIOK. 
 
 The object of re-examining a witness being merely to explain the facts stated by the wit- 
 ness on cross-examination, he cannot be' re-examined as to any facts unconnected with it, 
 but if any material question has been omitted in the examination in chief, the practice is to 
 suggest it to the court, who will put it to the witness, or decline to do so, at its discretion. 
 2 Russ. 621. 
 
 After a witness has been cross-examined respecting his former statements and declarations, 
 for the purpose of affecting his credit, the counsel who called him has a right to re-examine 
 him so as to give him an opportunity of explaining such statements and declarations. Thus 
 if that which the witness has stated in answer to the question on his cross-examination, arose 
 out of the inquiries of the person with whom he had the conversation, the witness may be 
 asked in re-examination what those inquiries were. 2 Brod. & Bing. 295. 2 Russ. 633. 
 
 But this, it should seem, is the limit of such a re-examination. Lord C. J. Abbot, in de- 
 livering his opinion in the Queen of England's case, said, " I think the counsel has a right, 
 upon a re-examination, to ask all questions which may be proper to draw forth an explana- 
 tion of the sense and meaning of the expressions used by the witness on cross-examination, 
 if they be in themselves doubtful; and also, of the motive, by which the wit:. ess was in- 
 duced to use those expressions : but I think, he has no right to go further and introduce 
 matter now in itself, and not suited to the purpose of explaining either the expressions or 
 the motives of the witness. 2 Brod. & Bing. 291. 2 Russ. 634. 
 
 It rests in the discretion of the court before whom a trial is had whether or not to permit 
 the re-examination of a witness after the lapse of a day, and after the examination of other 
 witnesses; the supreme court will not interfere with the exercise of such discretion but in 
 a very flagrant case. The People v. Mather, 4 Wendell, 229. 
 
 A witness cannot be permitted to read his evidence, (5 St. Tr. 445. Hawk. b. 2, e. 
 46, s. 168,) but may refresh his memory from any book or paper, provided he can afterwards 
 swear to the fact from his own recollection ; though if he can only maintain its truth by find- 
 ing it entered there, the papers must be themselves given in evidence. 3 T. R. 149. 11 Harg. 
 St. Tr. 255. 3 T. R. 754. 2 Campb. 112. 8 East, 284, 389. Hawk. b. 2, e. 46, s. 168. 
 Bac. Abr. Evidence, E. And he may be allowed to look at papers, in order to refresh his 
 memory, which were not written by himself, but which he has repeatedly inspected. 2 
 Campb. 112. 8 East, 284, 289. Two or three lines of a letter may be exhibited to a wit- 
 
CASE FOR PROSECUTION. 168—3 
 
 The prosecutor is not bound to call all the witnesses on the back of 
 the bill ; but he must have them in court, in order that the prisoner 
 may examine any of them whose evidence he may require. [2] If the 
 prisoner call them, however, he makes them his witnesses.(a) On the 
 other hand, the prosecutor is not confined to the evidence which was 
 adduced before the committing magistrates, but at the trial he may call 
 such other witnesses, and give such other evidence as he may think 
 proper.(6) 
 
 In one case,(c) which was an indictment for stealing a piece of wood 
 it appeared that when it was found in the prisoner's possession, he "said 
 he had bought it of one Nash, who lived about two miles off; but Nash 
 was not called as a witness for the prosecution : Alderson, B., laid it 
 down as a general principle, that where a man, in whose possession sto- 
 len property is found, gives a reasonable account how he came by it, as 
 by telling the name of the person from whom he received it, and who 
 is known to be a real person, — it is incumbent on the prosecutor to show 
 that such account is false. And in a more recent case, Lord Denman, 
 
 (a) Per Alderson, B., in E. v. Woodhead, 2 (6) R v. Ward, 2 Car. & K. 159. 
 Car. & K. 520, and stated to be the rule then (c) B. v. Crowhwst, 1 Oar. & K. 370. 
 
 lately laid down by the judges. 
 
 ness, without exhibiting to him the whole ; and the witness may be asked, whether he wrote 
 - the part exhibited. But if the witness deny that he wrote such part, he cannot be examined 
 as to the contents of the_ letter, 2 Brod. & Bing. 286. It has been said, that it is necessary 
 he should swear absolutely to the fact which he is called to prove, and that a mere persuasion 
 and belief will not be sufficient proof for the consideration of a jury. 1 Dyer, 53, b. n. 15. 
 Hawk. b. 2, o. 46, B . 167. Williams, J. Evidence, IV. See 1 Stark. Ev. 5th Amer. ed. 152, 
 153. But it is now settled, that there are cases which a belief will be available in evidence. 
 Thus a subscribing witness to a deed may swear that he has totally forgotten that he signed 
 it ; but, on being shown his signature, he may depose that he believes he saw the execution, 
 and the court will be satisfied with his answer. 3 Wils. 427. And though, in general, the 
 opinion of an individual is no evidence, on questions of science, persons skilled in the art may 
 be called to state what their sentiments are, respecting any point within the scope of their 
 particular inquiries. Thus, a physician, in case of murder ; a person skilled in detecting 
 feigned hands, in case of forged writings ; and a seal engraver, where a seal is suspected to 
 be a forgery, may respectively give their opinions respecting the cause of the death, or the 
 authenticity of the suspected instrument. 4 T. R. 498. 4 Esp. Rep. 117, 145. 2 Stark. Ev. 
 (5th Amer. ed.) 376 ; 1 Id. 153, 154. On a trial, where the defence is insanily, a witness of 
 medical skill may be asked whether such and such appearances proved by witnesses, are in 
 his judgment symptoms of insanity ; but it is questionable whether, he can be asked, whether, 
 from the other testimony given, the act with which the prisoner is charged, is, in his opinion, 
 an act of insanity, for that is the very point to be decided by the jury. Russ. & Ry. C. C. 
 456. 
 
 -[2] In Massachusetts, it is usual for the grand jury to return generally the names of all 
 the witnesses examined by them, without specifying the bills. In the case of Com. v. Knapp, 
 9 Piek. Rep. 498, where the prisoner's counsel requested that a list of the witnesses before 
 the grand jury should be given, the court granted the application without doubt, it being re- 
 marked by Wilde, J., that such a request had never been refused. 
 
 It seems that in Mississippi, it is not necessary that the grand jury should return with the 
 indictment, the names of the witnesses examined. King v. State, 6 Howard, Miss. Rep. 730. 
 
L68 — 4 TRIAL. 
 
 C. J., said that he agreed with Mr. Baron Alderson, in what he had stated 
 on that occasion, and that the case was correctly reported.(a) 
 [*169] Before the case above mentioned, however, it was the *gene- 
 rally received opinion, that if a person set up that defence, 
 either before the magistrate or at the trial, it was his duty to produce 
 the witness to prove it, or if he were too poor to do so, the magistrate 
 should send for the person named, and examine him if the prisoner 
 wished it. However if the account given by the prisoner be not a rea- 
 sonable one, — if for instance he say on one occasion that he bought the 
 article, and on another that he and two others found it hid in a hay rick, (J) 
 or the like, — this will impose no such burden on the prosecutor. [1] 
 
 (b) Case stated and evidence for the defence. 
 
 The defendant in all cases has, and at all times had, a right to ad- 
 dress the jury in his defence. In misdemeanors he always was and 
 still is allowed to do this by counsel. [2] In high treason he was first 
 allowed to do so, by stat. 7 & 8 W. 3, c. 3, s. 1 ; which adds, that " in 
 case any person or persons so accused or indicted shall desire counsel, 
 the court before whom such person or persons shall be tried, or some 
 judge of that court, shall and is hereby authorized and required imme- 
 diately, upon his or their request, to assign to such person and persons 
 
 (a) E. v. Smith, 2 Car. & K. 208. (i) R. v. Dibiy, 2 Oar. & K. 818. 
 
 [1] In prosecutions for larceny, whero the goods have proved to have been stolen, it is a 
 rule of law, applicable in these cases, that possession by the accused, soon after they were 
 stolen, raises a reasonable presumption of his guilt. And unless he can account for that 
 possession, consistently with his innocence, will justify his conviction. Evidence of this 
 nature is by no means conclusive, and it is stronger or weaker, as the possession is more or 
 less recent. Such evidence is sufficient to make out a prima facie case on the part of the 
 state, to be left to the jury. But when, by opposing testimony, reasonable doubt is thrown 
 upon a, prima facie case of guilt, it can no longer be said that the party accused is proved 
 guilty beyond a reasonable doubt. The jury are to judge upon the effect of the testimony 
 taken together. Proof of good character, may sometimes be the only mode by which an 
 innocent man can repel the presumption of guilt, arising from the recent possession of stolen 
 goods. As for instance, where the party really guilty, to avoid detection, thrusts, unob- 
 served in a crowd, the article stolen, into the pocket of another man. This may be done, 
 and the innocent party be unconscious of it at the time. And yet good character is not 
 proof of innocence, although it may be sufficient to raise a reasonable doubt ofguilt. See 
 State v. Merrick, 19 Maine Rep. 398. 
 
 [2] The constitution of the United States secures to the accused the privilege of the as- 
 sistance of counsel in all criminial prosecutions. Const, of U. & art. 6, of the Amend. And 
 a similiar provision is introduced into the constitutions or statutes of all the states. See 4 
 Am. Jurist. 11, 18; Const, of Mass. pt. 1, art. 12: Rev. Stat, of Mass. ch. 123, sec. 2; lb. 
 ah. 136, sec. 22; 1 Rov. Code ofVa. ch. 169, sec. 2.1, p. 607; 6 Amer. Jurist, 249, etseq. 
 In the state of New York, it is expressly provided by law that in all impeachments and in- 
 dictments the party accused shall be entitled to the benefit of full counsel, as in civil actions. 
 1 N. V. Rev. Sta. 93, 94, 165. 
 
CASE STATED FOR DEFENDANT, 169 
 
 •such and so many counsel, not exceeding two, as the persdn or persons 
 shall desire, to whom such counsel shall have free access at all reason- 
 able times." And by stat. 6 & 7 "W. 4, c. 114, s. 1, " all persons tried 
 for felonies shall be admitted, after the close of the ease for the prose- 
 cution, to make full answer and defence thereto, by counsel learned in 
 the law, or by attorney in courts where attornies practise as counsel." 
 
 If however the defendant wish to address the jury, and to examine 
 and cross-examine witnesses, he will of course be allowed to do so, and 
 his counsel will be allowed to argue any points of law that may arise in 
 the course of the trial, and to suggest questions to him for the cross-ex- 
 amination of the witnesses.(a) But he cannot have counsel to examine 
 and cross-examine the witnesses, and reserve to himself the right of 
 addressing the jury.(&) 
 
 As to the defendant's right to have a copy of the depositions, (c) 
 
 (c) Witnesses in reply. 
 
 If the defendant set up any defence, and call witnesses to prove it, 
 the prosecutor may then give evidence in reply. This evidence must 
 be strictly confined to the defence : the prosecutor will not be allowed 
 to wander from that, even for the purpose of giving evidence on the 
 original charge. Where upon an indictment for larceny, the prosecutor 
 rested his case upon the prisoner's recent possession of the goods ; the 
 prisoner set up as a defence, that he bought the goods of J, T., and he 
 called a witness to prove it ; the prosecutor then proposed to 
 call J. T. to prove, not only that he *did not sell the goods to [*170] 
 the prisoner, but that he saw the prisoner steal them : it was 
 holden however that he could not do this, but must confine his evidence 
 to the defence merely.(cZ )[1] 
 
 Upon the plaintiff callng witnesses in reply, the defendant's counsel 
 has a right again to address the jury, confining his observations how- 
 ever to the witnesses so called, and the testimony given by them. And 
 the prosecutor's counsel is then entitled to the general reply. 
 
 (d) Reply, &c. 
 
 The attorney general, when prosecuting for the crown, has the privi- 
 lege of replying, although no evidence has been given or witnesses 
 called for the defendant ;(e) and this, even upon the trial of collateral 
 
 (a) R. v. Parkins, Ry. & M., N. P. C. 166. B. v. HMttch et al, 5 Oar. & P. 299. R. v. 
 
 (b) R. v. White, 2 Camp. 98. Powell, Car. & M. 500. 
 
 (c) See ante, p. 51. («) By the Judges, 2 Car. & K. 636 n. 
 
 (d) R. v. Simpson, 2 Car. & P. 415, and see 
 
 [1] See ante, p. 168, note [1]. 
 
170 TRIAL. 
 
 issues.(a) And so has any other counsel representing him.(J) In other 
 cases, the counsel for the prosecutor is entitled to the general reply, 
 upon the entire case, if the defendant call and examine witnesses ; but 
 if the witnesses be merely to character,, the counsel for the prosecution 
 seldom avails himself of this privilege. In one case, where the coun- 
 sel for a defendant upon the trial of an indictment for a misdemeanor, 
 opened new facts in his address to the jury, but afterwards declined to 
 call witnesses to prove, them, it was holden that the counsel for the 
 prosecution was entitled to the general reply.(c) But this has since 
 been frequently ruled otherwise at nidprius. 
 
 (e) Adjournment of the trial. 
 
 If the trial cannot be concluded in one day, the court will adjourn 
 it to the next day, or if that happen to be Sunday, to the Monday, until 
 the trial is completed. [2] And in the meantime, in treason and felony, 
 the court order the sheriff to provide proper accommodation for the jury 
 at some tavern or other place ; and a bailiff is sworn thus : " You shall 
 well and truly keep this jury, and neither speak to them yourself, nor 
 suffer any other person to speak to them, touching any matter relative 
 to this trial : So help you God."(c*)[3] And the undersheriff and bail- 
 
 (a) R v. Radcliffe, 1 W. Bl. 3. (d) See S. v. Stone, 6 T. R. 530. E. v. 
 
 (6) R v. Gardner, 2 Car. & K. 628. Hardy, 24 How. St. Tr. 414, 572. 
 
 (c) B. v. Bignold, 4 D. & R 70. 
 
 [2] See State v. Anderson, 2 Bailey, 565. 
 
 [3] According to the forms anciently established at trials, an officer of the court should al- 
 ways be placed at the box where the jury sit, to prevent any one from having communica- 
 tion with them ; and when they depart from the bar, they should be attended by a bailiff 
 sworn for that purpose. 2 Hale's P. C. 296 ; Buller's N. P. 308. The form of the oath ad- 
 ministered to the bailiff who takes charge of the jury, when they retire to consider of their 
 verdict is as follows : " Tou shall swear that you shall keep this jury without meat, drink, 
 fire, or candle ; you shall suffer none to speak to them, neither shall you speak to them 
 yourself but only to ask them whether they are agreed." 2 Hale P. C. 296 ; Bac. Abr. 
 Juries, G; 1 Chit. C. L. 632. In the case of Rex v. Stone, (6 T. R. 530,) the form of oath 
 permitted the bailiff to speak to the jury, but not " touching any matter relative to the 
 trial." 
 
 In many courts, however, at the present day, it is not unusual that officers are sworn at 
 the commencement of the term, to take charge of all juries in civil cases, and probably 
 there is no reason for greater caution in criminal cases. Commonwealth v. Jenkins, et als. 
 Thach. C. C. 131. And so in regard to the restrictions upon the jury as to meat, drink, &c, 
 they will be found to have been much modified, provided sucli refreshments are taken in 
 moderation, and not at the expense of a party in the cause. 21 Vin. Abr. 448, Trial, 
 (G. g.) 
 
 The trial by jury, so justly prized, should be scrupulously preserved inviolate, as guaranteed 
 by the constitution, and protected against encroachment in all its essential attributes, and 
 every change or modification of form should be admitted only when found to be absolutely 
 necessary to meet the changes of society and the times. Its very forms, being designed to 
 protect it from innovation, are said, in 4 Black. Com. 320, to be sacred and not to be dis- 
 
ADJOURNMENT OF THE TRIAL. 170—1 
 
 iff accompany them the the next morning to court, and take care to 
 have them there at the time appointed. But upon the trial of a mis- 
 demeanor, it is not usual to keep the jury thus together, but they are 
 allowed to depart to their respective houses or lodgings, with a caution 
 
 pensed with. The rule that requires a jury, after being impannelled, to be kept free from 
 every improper communication or intrusion, was established to render more certain the for- 
 mation of an impartial and secret verdict. Accordingly, anciently, great strictness was used 
 in relation to the conduct of jurors, and but little consideration indulged for their comfort or 
 convenience. In more recent times, the conduct of jurors has been viewed in different lights, 
 and construed with different degrees of strictness, both as regards the jurors themselves, 
 and its effect upon their verdict. 1 Cow. 221, note ; Commonwealth v. Rdby, 12 Pick. 496. 
 In the case of the .Commonwealth v. Roby, Chief Justice Shaw, speaking of the effect of an 
 irregularity of the jury, or of other persons employed in the various departments and various 
 duties connected with the trial, propounds the rule, that if the irregularity is of such a nature 
 that it does not, and in its tendency cannot, affect the rights of a prisoner or other party, 
 whatever other consequences may follow upon such irregularity, it shall not avoid the ver- 
 dict, because it has no tendency to affect that verdict injuriously to the party against whom 
 it is found." Thus, some modem authorities can be found of instances where juries have 
 separated without authority of court, or jurors have separated from their fellows, or persons 
 have intruded upon juries in their retirement, in which the irregularity has been held not to 
 impair the verdict. 1 Dev. & Bat. 500; 1 Black. 25; 3 Cow. 355; 12 Pick. 496. But 
 these are mostly cases where evidence excluded the "presumption, that there was either in- 
 fluence, partiality, or undue excitement on the part of the jury — cases of a mere exposure 
 to undue influences, but in which that exposure has been affirmatively "shown to have pro- 
 duced no consequences of any kind. The effect of such an exposure, however, of which no 
 explanation is given as to the extent of its influence, presents a subject of different conside- 
 ration. Under such circumstances, the jealously with which the purity of the verdict is watch- 
 ed becomes immediately aroused, for the latest authorities hold, that if the irregularity has a 
 tendency to affect the rights of the party it is sufficient to warrant its being set aside. Such 
 a conclusion may be legitimately deduced from the opinion in the case of the Common- 
 wealth v. Roby, 1 2 Pick. Nor is this a new doctrine, for it was said by all the judges in Lord 
 Delamere's case 4 Harg. St. T. 232, that " an officer is sworn to keep the jury, without per- 
 mitting them to separate, or any one to converse with them, for no man knows what may 
 happen ; although the law requires honest men should be returned upon juries, and without 
 a known objection, they are presumed to be probi et legates homines, yet they are weak men, 
 and, perhaps,- may be wrought upon by undue applications." The evil to be guarded against 
 is improper influence, and when an exposure to such an influence is shown, and it is not 
 shown that it failed of effect, then the presumption is against the purity of the verdict. 
 9 Smedes & Marsh. Hep. 467, 468, 469. 
 
 In New York where a jury, empannelled to try a prisoner upon an indictment for murder, 
 were allowed to leave the courthouse during the trial, urjder the charge of two sworn con- 
 stables, and, having left the court house, two of them separted from their fellows, went to 
 their lodgings, a distance of thirty rods, ate cake, took some with them on their return, and 
 drank spirituous liquor, though not enough to effect them in the least, and one of them con- 
 versed on the subje't of the trial; it was held, that though the mere separation was not in 
 itself, fata!, the drinking of spirituous liquor, and the conversing on the case, were sufficient 
 for a new trial. People v. Douglas, 4 Cowen, 26. And see State v. Prescott, 7 New Hamp. 
 Rep. 290 ; State v. Babcodc, 1 Connect. 401 ; State v. Miller, 1 Dev. & Bat. 500 ; Wyatt v. 
 State, 1 Blackford. 25. 
 
 It seems that in South Carolina, the jury are not required to remain together even after 
 they are charged though the case is capital, and that it is within the sound discretion of the 
 presiding judge to allow a juror to leave the jury box, for a brief time even during the trial 
 of a capital case. State v. WKee, 1 Bailey, 651 ; State v. MeEVmwray, 3 Strobh. 33. 
 
170—2 TRIAL. 
 
 however, to attend in court punctually at the time to which the trial is 
 adjourned, and in the meantime not to hold communication with any 
 person upon the subject of the trial.(a)[4]' 
 
 (a) See R v. Kinnear, 2 B. & Aid. 462. 
 
 [8] In R v. Wool/, 1 Chitty, R. 401, it appeared that the trial (for conspiracy) had lasted 
 two days; that on the first day the court sat from the morning till eleven o'clock at night- 
 and that, on the adjournment, the jury separated, going to their several homes, and returned 
 the next morning. The separation was without the knowledge of the defendant and his 
 counsel, and without the consent of court. "I am of opinion," says the court "that there 
 is no sufficient foundation for the present application. The application is grounded upon the 
 suggestion of these two facts : First, that the jury had dispersed during the night. Secondly, 
 that that fact was not known to the defendants until after the trial was over. Now, the 
 trial began between nine and ten in the morning; it had proceeded until eleven o'clock at 
 night, or later, before the evidence on the part of the prosecution was closed. Learned 
 counsel were employed, separately, for several defendants. It must be assumed, that m that 
 stage of the case, evidence would be laid before the jury on the part of the defendants. It 
 became matter, therefore, of necessity, that the trial should be adjourned, and an adjourn- 
 ment, accordingly, took place from the necessity of the case, the jury being fatigued both in 
 mind and body; and it would have been most injurious to the case of the defendants, even 
 if the judge and jury had had strength enough to go on, till the trial came to a close, I say, 
 most injurious to the case of the defendants, if their case was heard by persons whose minds 
 were exhausted with fatigue, as it would have been, if an adjourment had not taken place. 
 An adjournment of this nature is not necessarily followed by the dispersion of the jury, for, 
 in many cases, they are kept together till the final close of the trial. But I am of opinion, 
 that, in a case of misdemeanor, their dispersion does not vitiate the verdict; and I found my 
 opinion upon the admitted fact, that there are many instances, of late years, in which juries, 
 upon trials for misdemeanors, have dispersed and gone to their abodes, during the night for 
 which the adjournment took, and I consider every instance in which that has been done, to 
 be proof that it may be lawfully done. It is said, that, in some of those instances, the ad- 
 journment and dispersion of the jury have taken place with the consent of the defendant. 
 I am of opinion, that that can make no difference. I think the consent of the defendant, in 
 such case, ought not to be asked ; and my reason for thinking so is, that if that question is 
 put to him, he cannot be supposed to exercise a fair choice in the answer he gives, for it 
 must be supposed that he will not oppose any obstable to it ; for if he refuses to accede to 
 such an accommodation, it will excite that feeling against him which every person, standing 
 in the situation of a defendant, would wish to avoid. I am also of opinion, that the consent 
 of the judge would not make, in such case, that lawful which was unlawful in itself; for if 
 the law requires that the jury shall, at all events, be kept together until the close of a trial 
 for misdemeanor, it does not appear to me, that the judge would have any power to dis- 
 pense with it. The only difference that can exist between the fact of the jury separating, 
 with or without the approbation of the judge, as it seems to me, is this, that if it be done 
 without the consent or approbation of the judge, express or implied, it may be a misde- 
 meanor in them, and they may be liable to be punished; whereas, if he gives his consent, 
 there will be no such consequence of a separation. But though it may be a misdemeanor 
 in them to separate without his consent, it will not avoid the verdict, in a case of this kind, 
 as it would if the law required the jury to be absolutely kept together. It seems to me, 
 that the law has vested in the judge the discretion of saying, whether or not, in any par- 
 ticular case, it may be allowed to the jury to go to their own homes, during a necessary ad- 
 journment throughout the night. For these reasons, it appears to me, that there is no 
 ground for the present application ; and, I conceive, we ought not to give any reason to sup- 
 pose that any doubts exist, when none really exist in our minds. 
 
 "There is no doubt that, in cases not affecling life and limb, the court has such power, 
 
SUMMING. UP. 171 
 
 *(/) Summing up. [*171] 
 
 After the case has been closed on both sides, the judge at the assizes, 
 or the chairman or recorder at sessions, then sums it up to the jury. 
 He first states the substance of the charge against the prisoner ; he then, 
 if necessary, explains to them the law upon the subject,; he next reads 
 the evidence which has been adduced in support of the charge, making 
 occasionally such observations as may be necessary to connect the evi- 
 dence, to apply it to the charge, and to render the whole plain and in- 
 telligible to the jury ; he then states the defence, and the evidence given 
 on the part of the defendant ; and he usually concludes by telling the 
 jury, that if, upon considering the whole of the evidence, they enter- 
 tain a fair and reasonable doubt of the guilt of the prisoner, they should 
 give the prisoner the benefit of that doubt, and acqtiit him.[l] 
 
 and it is the constant practice throughout the Union, in such cases, to exercise it. The jury, 
 it has been held, may even be discharged while the trial is proceeding. 1 ' Wharton's Crim. 
 Law, citing, Peopley. Olcott. 2 Johnson, 0. 301; People v. Goodwin, 18 Johnson, 187 ; People 
 v. Green, 13 Wendell, 55; Com. v. Weems, 1 Boston Law Eep. 257 ; Sector v. State, 2 Mis- 
 souri, 135 ; People v. Thompson, (Gen. Court of Va.) 2 Wheeler's C. C. 473 ; Com. v. Bowden, 
 9 Mass. 494 ;. Com. v. Purchase, 2 Pick. 521; People v. Ellis, 15 Wendell, 371; Com. v. 
 Cook, 6 Serg. & R. 577 ; Com. v. Clue, 3 Rawle, <498 ; Spier's case, 1 Dever. 491 ; State v. 
 Garrigues, 1 Hayw. 241 ; U. S. v. Peres, 9 Wheaton, 579; U. £ v. Coolidge, 2 Gallison, 
 364; U. S. v. Shoemaker, 2 M'Lean, 114; Moore v. State, 1 Walker, 124; U. S. v. HasMl, 
 4 Wash. C. 0. R. 409 ; Com. v. Olds, 5 Little, 140 ; Gerard v. People, 3 Scammon, 363 ; 
 State v. Miller, 1 Dev. & Bat. 500 ; Tennessee v. Waterhouse, Mart. & Yerger, 278 ; State v. 
 HaU, 4 Halsted, 236 ; State v. If Kee, 1 Bailey, 154 ; Wyatt v.. State, 1 Blackford, 257 ; Com. 
 v. Merrill, Thacher's C. 0. 1. 
 
 [1] During the whole trial the court has power to punish any contempts of its authority, 
 or obstruction of the course of justice. 6 Term Rep. 530; 3 Harg. St. Tr. 408. They may 
 fine a person offending, and command the fine to be immediately levied ; as for contempt in 
 addressing the jury. 4 B. & A. 329. And if the defendants are guilty of any contemptuous 
 behavior, they may be committed, or obliged to find sureties for the outrage on public justice, 
 though acquitted of the original accusation. Cro. Car. 507; Comb. 40. The commitment 
 should be for a time certain. 5 B. & A. 894. 
 
 When the evidence and the speeches on both sides are thus concluded, it becomes the duty 
 of the judge, or presiding magistrate, to sum up the evidence to the jury. 6 Harg. St. Tr. 
 832, 833. Dick. Sess. 223. See form of Charge, 6 Harg. St. Tr. 832. In order to enable 
 him to do this with accuracy, he ought to take notes of the proofs adduced in every part of 
 the proceedings. And this is the more necessary, as these minutes frequently become im- 
 portant documents in a remoter stage of the prosecution : as where the cause is removed by 
 certiorari before sentence ; where a special case is carried up to the court above ; or where 
 an application is made for a pardon. In these, and many other cases, these, notes are ex- 
 amined, to show the circumstances of the prisoner's guilt, and how far the aggravations or 
 excuses of the case ought to operate in the dispensation of justice or the extension of mercy. 
 Dick. Sess. 223, note. See form 11 Harg. St. Tr. 290, 1. Where the evidence affects sev- 
 eral defendants differently, the judge will, as we have seen, select the evidence applicable to 
 each, and leave their cases separately to the jury. 3 T. R. 106. 
 
 The judge has a right to express to the jury his own opinion in regard to the weight of 
 evidence. Commonwealth v. Child, 10 Pick. 252. People v. Bathbwi, 21 Wendell, 509; Swift 
 y. Stevens, 8 Conn. 431 ; Ware v. Ware, 8 Greenl. 42. See also 3 Amer. Jurist, 328 ; Ware 
 v. Ware, 8 Greenl. 42; People v. Genmg, 11 Wendell, 18. 
 
171—1 TRIAL. 
 
 It may be necessary to state, that a bill of exceptions will not lie- it 
 is never allowed in a criminal case.(a)[2] 
 
 (a) See R. v. Preston-upon-the-Bill, Burr. S. 0.11; 2 Str. 1040. 
 
 Tbe court is bound to instruct the jury as to the law in any materia] point relative to the 
 issue, when requested. Jaredv. Goodtitle, 1 Blackford, 29; Lewis v. Stale, 4 Ohio, 397. A 
 new trial, however, was refused, where the judge, though requested, declined to charge the 
 jury when there was no dispute as to the law of the case. People v. Gray, 5 Wendell, 289. 
 And where the court are not reminded of their neglect to charge on a particular point until 
 the jury have returned their verdict, it is not error in the court then to refuse to charge on 
 the point in question. State v. Catlin, 3 Vermont, 520. See also Alsop v. Swathel, 1 Conn. 
 500. New Hampshire.— -It is not a ground for a new trial that the court omitted to instruct 
 the jury as to the degree of evidence necessary to convict of perjury, where no question of 
 that nature was raised at the trial. State v. Eascall, 6 N. Hamp. 352. The court is not 
 bound to charge on abstract propositions of law submitted by counsel in the trial of a cause. 
 People v. Cunningham, 1 Denio, 524; Lewis v. State, 4 Ohio, 389 ; Etting v. U. States Bank, 
 11 Wheat. 59. As to the province of the jury to decide on the whole case, law as well as 
 fact, see 1 Chitty's Cr. Law, 626, n. See Games v. Dunn, 14 Peters, 322. 
 
 New York. — Should the jury in the trial of a criminal case, happen to be misled by there- 
 marks or views of tbe testimony, presented by the presiding judge, it seems, there is no 
 remedy for the accused, but by appeal to the pardoning power. People v. Vane, 12 Wendell, 
 78. 
 
 [2] The following are the provisions of the New York Revised Statutes : On the trial of 
 any indictment, exceptions to any decision of the court may be made by tbe defendant, in 
 the same cases and manner provided by law in civil cases ; and a bill thereof shall be settled, 
 signed and sealed, and shall be filed with the clerk of the court, and returned upon a writ of 
 error as now authorized in personal actions, or upon a certiorari as hereinafter provided, and 
 the same proceedings may be had to compel the signing and sealing of such bill and the re- 
 turn thereof. 
 
 But no such bill of exceptions shall stay or delay the rendering of judgment upon any 
 such indictment, or the execution of such judgment, or of any sentence thereon, except as 
 hereinafter provided. 
 
 Such bill of exceptions being settled and signed, if the circuit judge who tried the cause, 
 or a justice of the Supreme Court, shall certify on such bill, that in his opinion there is pro- 
 bable cause for the same, or so much doubt as to render it expedient to take the judgment 
 of the Supreme Court thereon, such certificate, on being filed with the clerk of the court, 
 shall stay judgment on such indictment, until the decision of the Supreme Court be had upon 
 such exceptions. 
 
 If such bill of exceptions shall have been tendered to any court of sessions, and shall have 
 been settled, signed and sealed, and the judge who presided on the trial, or any justice of 
 the Supreme Court, shall grant a certificate as provided in the last section, upon the filing 
 thereof with the clerk of the court, judgment shall be stayed upon such indictment, until 
 the decision of the Supreme Court be had upon such exceptions. 
 
 But no certificate shall be granted by a judge of the Supreme Court, unless application 
 therefor shall first have been made to the judge who presided at the trial, and the reasons 
 of such judge refusing the same, be attached to the bill of exceptions. 
 
 Upon such certificate being granted, as provided in the three last sections, in any case 
 where the offence charged is punishable by imprisonment in a state prison or in a county 
 jail, the court in which the trial shall have been had, or any .justice of the Supreme Court, 
 may let the defendant to bail, upon a recognizance with sufficient sureties, conditioned that 
 he shall appear in the court where such trial was had, .at such time as the Supreme Court 
 shall direct, and that he will obey any order or judgment the Supreme Court shall make in 
 the premises. 
 
SUMMING- UP. 171—2 
 
 In what cases the court have a power, of amending at the trial, (a) 
 As soon as the summing' up ■is concluded, the clerk of arraigns, or 
 
 (a) See ante, pp. 99, 100. 
 
 "When judgment shall have been stayed, upon any indictment as herein provided, it shall 
 be the duty of the district attorney of the county, immediately to sue out a writ of certiorari, 
 returnable in the Supreme Court, to remove such indictment with the bill of exceptions and 
 other proceedings thereon, into such court; and the clerk of the court shall, without delay, 
 make a return thereto, containing a transcript of the indictment, bill of exceptions, and the 
 certificate staying judgment. 2 N. T. Rev. Stat. p. 918, 919, o. 23-29. 
 
 In Massachusetts, the statute provides: Any person who shall be convicted of an offence 
 before the court of common pleas, being aggrieved by any opinion, direction or judgment of 
 the court, in any matter of law, whether he have a right to appeal therefrom or not, if an 
 appeal be not actually taken, or, having been taken, if it be waived by leave of the court, 
 may allege exceptions to such opinion, direction or judgment; wbicb exceptions, being re- 
 duced to writing in a summary mode, and presented to the court,-a, convenient time before 
 the end of the term, and found conformable to the truth of the case, shall be allowed and 
 signed by the presiding justice thereof, and thereupon all further proceedings in the case, in 
 that court, shall be stayed, unless it shall clearly appear to the presiding justice, that such 
 exceptions are frivolous, immaterial, or intended only for delay, and in that case judgment 
 may be entered, and sentence awarded, in such manner as the court may deem reasonable, 
 notwithstanding the allowance of such exceptions. R. S. of Mass. p. 764, s. 11. 
 
 In Maine, any person convicted of an offence in the district court, may allege exceptions 
 to any opinion, direction or judgment of the said court, and thereupon such proceedings shall 
 be had in said court, and also in the supreme judicial court, as are prescribed in the nine- 
 teenth section of the ninety-seventh chapter, establishing the said district court. 
 
 In criminal trials in the supreme judicial court, any person convicted of any offence tried 
 before any one justice of said court, may, in the manner mentioned in the preceding section, 
 allege exceptions to any opinion, direotion or judgment of suoh justice, to be allowed and 
 signed by him ; or any questions of law, which may be so reserved on exceptions, as above 
 stated, may be reserved on a report signed by such justice, who may require such defend- 
 ant to recognize with sufficient sureties to appear at the next term of said court, and abide 
 the judgment which the full court shall render in the cause ; or commit him, on his neglect- 
 ing so to recognize R. S. of Maine, p. 721, s. 40, 41. 
 
 In Mississippi, the statute is as follows: In the prosecution of any person or persons for 
 any crime or misdemeanor, in any court of law of this state, it shall be the duty of the judge 
 or justices, before whom such proseoutipn is pending, to sign and seal any bill of exceptions 
 tendering to the court, during the progress thereof: Provided, The truth of the case be fairly 
 stated in such bill of exceptions. And thereupon, the said exceptions shall, by the clerk of 
 the said court, be entered in the record of such prosecution, and become, to all intents and 
 purposes, a part thereof. Hutchinson's Miss. Code, p. 880, s. 146. 
 
 In Virginia, a party, in a criminal case or proceeding for contempt, for whom a writ of 
 error lies to a higher court, may except to an opinion of the court and tender a bill of ex- 
 ceptions, which, (if the truth of the case be fairly stated therein,) the judge, judges or justices, 
 or the greater part of those present, shall sign ; and it shall be a part of the record of the oase. 
 This section shall not be construed to authorize a bill of exceptions to an opinion of an ex- 
 amining court. Code of Va. p. 779, sec. 1. 
 
 In Michigan, the Revised Statutes provide: — Any person who shall be convicted of any 
 offence before any court of record, considering himself aggrieved by any opinio.n, direction or 
 judgment of the court, in any matter of law, may allege exceptions to such opinion, direction 
 or judgment, which exceptions being reduced to writing in a summary mode, and presented 
 to the judge before the end of the term, and found conformable to the truth of the case, shall 
 be allowed and signed by the judge. 
 
 63 
 
171—3 TRIAL. 
 
 clerk of the peace, says to the jury,—" Gentlemen, consider of your ver- 
 dict." The jury accordingly consult with each other upon the subject. 
 
 Upon the signing of such exceptions, all further proceedings in that court shall be stayed, 
 unless it shall clearly appear to the judge, that such exceptions are frivolous, immaterial, or 
 intended only for delay, and in that case, judgment may be entered»and sentence awarded 
 in such manner as tho court shall deem reasonable, notwithstanding the allowance of such 
 exceptions. 
 
 If upon the trial upon indictment of any person who shall be convicted in any court of 
 record, any question of law shall arise, which, in the opinion of the judge, shall be so im- 
 portant or doubtful, as to require the opinion of the supreme court, he may, if the defendant 
 desires it or consents thereto, report the case so far as may be necessary to present the ques- 
 tion of law arising thereon, and transmit the same with all convenient speed to the chief 
 justice, or one of the associate justices of the supreme court, and thereupon all further pro- 
 ceedings in such court shall be stayed. 
 
 Any person who shall file exceptions, or for whose benefit a report shall be made by the 
 judge, as is provided in the preceding sections, may, if the offence be bailable, recognize to 
 the people of this state, in such sum as the court shall order, with sufficient sureties for his 
 appearance at the next term of such court, and to prosecute his exceptions to effect in tho 
 supreme court, if exceptions are alleged as aforesaid, and to abide the further judgment or 
 order of the court in the premises, in which such trial was had, and in the mean time to keep 
 the peace and be of good behavior. 
 
 If such person shall not so recognize, he shall be committed to prison, to await the de- 
 cision of the supreme court; and in that case the clerk of the court in which the conviction 
 was had, shall file a certified copy of the record and proceedings in the ease, in the supreme 
 court ; and such court shall have jurisdiction to hear and determine the questions of law 
 arising on such exceptions or report, and shall certify their determination to the court in 
 which the trial was had, together with directions as to a new trial, or such other proceedings 
 as right and justice shall require; but the proceedings herein prescribed shall not deprive 
 any party of his writ of error, for any error or defect appearing of record. 
 
 The court in which the party so convicted and recognized shall be bound to appear as afore- 
 said, shall have power to continue such recognizance, or require a new recognizance, with 
 further or other sureties until the decision of the supreme court shall be had in the premises, 
 and in default of compliance with any such requisition, such court may commit the party so 
 convicted to close custody. Rev. Sts. of Mich. p. 702, 703, sees. 2-7. 
 
 In Vermont, exceptions to the decision of the county court, upon any motion in arrest of 
 judgment made in a prosecution by indictment or information, may be allowed and placed 
 upon the record, if such court, upon consideration of the difficulty and importance of the 
 question, shall so direct, and not otherwise ; and the same shall thereupon pass to the su- 
 preme court for a final decision ; and judgment, sentence and execution shall thereupon be 
 respited and stayed. Sec. 65 of R. S. 
 
 If, on inspection of the record in any such cause, the supreme court shall be of opinion 
 that judgment ought to be rendered upon the verdict, such court shall proceed to render judg- 
 ment and sentence thereon, according to law, and cause execution thereof to be done ; other- 
 wise the cause shall be removed to the county court for trial, or judgment of acquittal shall 
 be rendered by the supreme court, as law and justice may require. Sec. 66 of R. S. Rer. 
 Sts. of Termont, p. 229, sees. 73, 74. 
 
 The provisions of the Code of Iowa, are as follows : — On the trial of an indictment ex- 
 ceptions may be taken by the defendant or prosecuting attorney to a decision of the court 
 upon matters of law in any of the following cases : 
 
 First — In disallowing a challenge to the pannel of the jury, or to an individual juror for 
 a general disqualification or for actual or implied bias. 
 
 Second — In admitting or rejecting witnesses or testimony, or in deciding any question of 
 law not a matter of discretion, or in charging or instructing the jury upon the law on the trial 
 of the issue. 
 
RETIRING OF THE JURY. 171—4 
 
 SECTION III. 
 
 THE VERDICT. 
 
 (aa) Retiring of the jury. 
 
 If the jury find any difficulty in coming to a conclusion, and wish to 
 retire to the jury room for the purpose of discussing the matter more 
 freely in private, they may intimate their wish to the clerk of arraigns 
 or clerk of the peace ; and the crier of the court will then swear a bail- 
 iff to attend them, thus : — " You shall swear that you will keep this 
 jury, without meat, drink, or fire, (candle light only excepted;) you 
 shall suffer none to speak to them- neither shall you speak to them 
 yourself, but only to ask them whether they are agreed upon their ver- 
 dict : So help you God." 
 
 After the jury have thus retired, they may come back for the advice 
 or opinion of the court upon any point ; or they may request the judge, 
 chairman, or recorder, to read over to them again any particular part 
 of the evidence ; or they may get the court to ask any particular ques- 
 tion of the witnesses. All this, however, must be done in open court. [3] 
 
 A bill of exceptions must be settled and signed by the judge who tried the cause and filed 
 with the clerk. 
 
 The bill of exceptions must be settled at the trial unless the court otherwise direct. If no 
 such direction be given the point of exception must be particularly stated in writing.and de- 
 livered to the court and shall immediately be corrected or added to until it is made con- 
 formable to the truth. 
 
 The bill of exceptions must contain so much of the evidence only as is neeessary -to present 
 the question of law upon which the exceptions were taken. Code of Iowa, p. 420, 421, ch. 
 119, sees. 3046-9. 
 
 [3] After the evidence is closed, and has been summed up by the respective counsel, and 
 the court have charged the jury, they either give their verdict without leaving the box, or 
 in cases of doubt, they retire, in charge of an officer, to deliberate. After they have retired, 
 it is their duty to continue together, until they return into court, without having any com- 
 munication witli any person, either on the subject of the case, or on any other; and it is, ac- 
 cordingly, a part of the oath of the officer, into whose charge they are delivered, that he shall 
 not suffer any person to speak to them, or speak to them himself, unless it be to ask them if 
 they have agreed upon their verdict, without leave of the court. Although, where two jurors, 
 (after the jury had retired to consider of their verdict,) separated from their fellows, and were 
 gone some hours, but returned, and joined, in the verdict, there appearing to have been no 
 probability of abuse, the court refused to set aside their verdict. 1 Cowen, 221. So, if a 
 juror leave his seat, for a short time, without the knowledge of the court, or parties, but no 
 testimony is given during his absence, and he holds communioationwith no one, on the sub- 
 ject of the cause, though this is a contempt of the court, it does not avoid the verdict. 3 
 Cowen, 355. So, where, after a jury in a justice's court had retired, to deliberate on their 
 verdict, they sent for the justice, and asked him whether they could add any thing to the 
 charge of the plaintiff, and he answered no, and left them without any thing further being 
 said, this was held not to be an irregularity, for which the verdict could be set aside. 5 Johns. 
 111. 
 
171 5 VERDICT. 
 
 (a) In what cases the jury may be discharged. 
 
 The general rule is, that the jury must be kept together from the 
 time they are first charged with the prisoner or defendant, until they 
 deliver their verdict, unless the prisoner consent to their being 
 [*172] *discharged.(o) But cases occur, in which the judge from ne- 
 cessity is obliged to discharge them. If they cannot agree upon 
 
 (as) 2 Hawk. o. 47, s. 1. 
 
 And, aa a general rule, the mere separation of a jury, after they have agreed upon their 
 verdict unless .there be some suspicion, (and the slightest is sufficient,) of abuse, will not 
 prejudice the verdict ; (2 Co-wen, 589 ; 4 Cowen, 26 ;) but if they eat, or drink at the expense 
 of the party, for whom they find a verdict, it avoids the verdict ; (Co. Lit. 217 ; 4 B. & Adol. 
 681 ;) and where a jury, empanelled to try a prisoner upon an indictment for murder, were 
 allowed to leave the court house during the trial, under the charge of two sworn constables, 
 and having left the court hod*se, two of them separated from their fellows, went to their lodg- 
 ings, a distance of thirty rods, ate cakes, took some with them on their return, and drank 
 spirituous liquors, though not enough to affect them in the least, and one of them conversed 
 on the subject of the trial, and they returned, heard the trial through, and joined in a verdict 
 of guilty, held that the verdict should be set aside and a new trial granted. 4 Cowen, 26. 
 So, where a juror, after the cause was committed to the jury, drank brandy, though in a 
 trifling quantity, and as lie stated, to cure the diarrhoea, it was held, that the verdict should 
 be set aside; (7 Cowen, 562 ;)and in this case, the court observe, "We cannot allow jurors, 
 thus of their own head, to drink spirituous liquor, while engaged in the course of a cause. 
 We are satisfied, that here has been no mischief: but the rule is absolute, and does not meddle 
 with consequences. Nor should exceptions be multiplied. We have set aside verdicts on 
 error, for this cause, even where the parties consented that the jury should drink." 
 
 See Purington v. Humphreys, 6 Greenl. 378; People v. Douglass, 4 Cowen, 26; Common- 
 wealth v. Roby, 12 Pick. 496; Fries' 1 case, 3 Dali. 515 ; Harrison v. Rowan, 4 Wash. 32. 
 
 The court will permit cider to be furnished to the jury. Commonwealth r. Roby, supra. 
 But not ardent spirits. Id, ; Brant v. Fowler, 7 Cowen, 562 ; People v. Douglass, and Puring- 
 ton v. Humphreys, supra. Unless by consent. U. States v. Gibert, 2 Sumner, 1 9. 
 
 State v. Sparrow, 2 Murphey, 487 ; Commonwealth v. Roby, 12 Pick. 517. Cottle v. Cottle, 
 6 Greenl. 140. 
 
 A new trial was granted, because the judge, after the court was adjourned, wrote a letter 
 to the jury, respecting the cause which had been committed to them. Sargeant v. Roberts, 
 1 Pick. 336. Burnham v. Low, 10 Metcalf, where the, case of Sargeant v. Roberts, is ex- 
 plained. 
 
 See Benson v. Fish, 6 Greenl. 141 ; Hix v. Drury, 5 Pick. 302 ; Sheaffe v. Gray, 2 Yeates, 
 273 ; MitcMVs case, 1 Rogers' Rec. 147. See Whitney v. Whitman, 5 Mass. 405 ; Purington 
 v. Humphreys, 6 Greenl. 379 ; Talmadge v. Northop, 1 Root, 522 ; Price v. Warren, 1 Hen. 
 & Munf 385 ; Buckley v. Hustie, 3 John. 252 ; Lonsdale v. Brown, 4 Wash. C. C. 148 ; Alex- 
 ander v. Jamicson, 5 Binney, 238. In Commonwealth v. Jenkins, Thacher C. C. 1 1 8, the court 
 suffered a volume of the Revised Statutes of Massachusetts to go to the jury, without con- 
 sulting either party, the same containing the act on which the indictment was founded. In 
 U. States v. Gibert, 2 Sumner, 21, the constable who had the jury in charge in a capital case, 
 suffered them to read the newspapers during the trial, having first examined the same, and 
 being sure that they contained nothing in reference to the trial. In Burnham v. Low, 10 
 Metcalf, several plans having gone unto the jury room by consent, the court without con- 
 sulting either party, at the request of the jury, suffered the constable having them'in charge, 
 to hand in to them a pair of dividers. In all of these three last named cases, it was held that 
 the verdict was not vitiated thereby. 
 
IN WHAT CASES THE JURY MAT BE DISCHARGED. 172 
 
 their verdict, and they appear not likely to do so, the judge, chairman, 
 or recorder, in the exercise of his discretion, may discharge them, as 
 soon as it becomes a matter of necessity, of which he is to judge ;(a) and 
 he usually discharges them, after they have been one night locked up 
 in their jury room, deliberating on their verdict. "Where a jury retired 
 to consider of their verdict between one and two in the nfternoon, and 
 were locked up all night, and being brought into court the next morn- 
 ing, declared that there was no likelihood of their agreeing, the judge 
 discharged them, the business of the assizes being over, and the com- 
 mission opened for the next county on the circuit : the court of Queen's 
 Bench held, that he had properly exercised his discretion in doing 
 so.(5)[l] 
 
 (a) R. v. Newton, 13 Shaw's J. P. 666. (6) lb. 
 
 [1] Lord Coke (1 Inst. 22?, b. 3 Inst. 110,) lays it down as a general rule, that a jury- 
 sworn, and charged by the court, in cases of life or member, and so in all cases of felony, 
 cannot be discharged by the court, or any other, but they ought to give a verdict. The only 
 authority, however, that he cites in favor of this general position, is a case from 21 Edw. 
 Ill, 18. (Foster, 32; Brooke's Corone, 42,) in which it was adjudged that a person indicted 
 for larceny, and who had pleaded not guilty, and put himself upon his country, should not, 
 afterwards, when tho jury was in courts be admitted to become an approver ; because, by 
 solemnly denying the fact by his plea, he had lost all credit, and ought not to be received as 
 a witness against others. Foster, 32, 33; Brooke's Corone, 42. This authority, cited by 
 Lord Coke, does not warrant, or add the least sanction to his general rule, and the authority 
 itself was afterwards overruled ; and the court used to exercise its discretion, in sometimes 
 refusing, and sometimes admitting persons to the liberty of approving, after the jury were 
 sworn, and evidence in part given. Foster, 33, 34. The same doctrine advanced by Coke, 
 was afterwards engrafted by Serjeant Hawkins, (P, C. b. 2, c. 97, s 1,) and by Mr. Justice 
 Blackstone, (Com. vol. 4, p. 360,) into their elementary treatises on the criminal law; but 
 their opinions rest solely upon the foundation of Lord Coke's authority. There is also a note 
 in Carth. 465, in which it is stated to have been a resolution of all the judges of England, of 
 which Ch. J. Holt was then one, that, in capital cases, a juror cannot be withdrawn, even 
 with the prisoner's consent, nor in any case, civil or criminal, without it. In civil actions, 
 the justices, upon causes, may discharge the jury. Bro. Inq. 39, 4V, 68, &c. cited in 1 Tri. 
 pur Pais, 259. 
 
 With respect to the note in Carthew, it underwent a critical examination, in the case of 
 the two Kinlochs, (Foster, 27, 28,) in the year 1746, and it was considered as a palpable 
 mistake of the reporter. The case as corrected by a MS. report of Ch. J. Eyre, was on an 
 indictment for perjury ; and on the trial, the prosecutor finding his evidence defective, in- 
 sisted on withdrawing a juror, and Ch. J. Holt refused it, saying, that in criminal cases, a 
 juror cannot be withdrawn, but by consent; and in capital cases, not even with consent. 
 This case, therefore, goes only in restraint of what was properly deemed an unreasonable 
 and oppressive claim on the part of the prosecutor. 
 
 In the case of The King v. Jeffs, (Stra. 984,) Lord Hardwicke followed this example of 
 Holt. He refused, in a case of barratry, to permit a juror to be withdrawn, on the motion 
 of the prosecuter, after he had gone into proof, and found himself deficient, because the pun- 
 ishment annexed to that offence might be infamous; but he said it might be, and had been 
 done, in other cases of misdemeanors. This, like the preceding case, controls an improper 
 exercise of the power of the court, but does not deny its existence. It perhaps admits too 
 much ; for to allow the prosecutor, in any case, to withdraw a juror, because he finds him- 
 self not fully prepared in his proofs, is an unreasonable indulgence, unless it should be made 
 
172 — 1 VERDICT. 
 
 But this discharge of the jury has no effect on the prisoner; he has 
 no right on that account to be discharged, but must, if in custody, re- 
 
 to appear, that some part of the testimony was wanting, through the contrivance or agency 
 of the defendant. 
 
 It seems, then, that the position, generally denying the power of the court to discharge a 
 jury sworn and charged in a criminal case, has originated (probably without further exami- 
 nation or inquiry) from a dictum, to be found in the Institutes of Lord Coke, and that this 
 dictum rests upon his single authority, without the sanction of any judicial decision. None 
 of the decisions go any further, than to prescribe a rule to the discretion of the court in par- 
 ticular cases. On the contrary, there are many authorities admitting and establishing the 
 power of the court to discharge the jury, even in capital cases. 
 
 In the case of Perrars, cited in Sir T. Kaym. 84, which was on an information for forgery; 
 it is said to have been held by all the justices, that after a jury was sworn and charged in a 
 capital case, they may be dismissed, or a juror withdrawn, though this was said to be con- 
 trary to common tradition. Again, on a trial for larceny, reported in 1 Tent. (p. 69,) after the 
 jury were sworn, as the witnesses did not appear, and were suspected to have been tamper- 
 ed with by the defendant, the jury were discharged, and the trial put off; and Sir John 
 Strange produced the record of a case of Hill, 8, s. 7, (Poster, 271,) where, on an indictment 
 for murder, the jury delivered a verdict handed to them by the prisoner, and they were in 
 consequence of it discharged and committed, and the defendant tried again. In the spirit of 
 these decisions, Sir John Holt (Salk. 646.) admitted that even « new trial might be granted 
 in criminal cases, if the verdict was obtained by fraud or trick; and Sir M. Hale, (P. C. vol. 
 2, p. 295,) in direct opposition to Coke, says, that the practice had, in his time, become ordi- 
 nary for the court, after the jury were sworn and charged, and evidence given, if it appeared 
 that some of the testimony was kept back, or that there might be a fuller discovery, and the 
 offence as notorious as murder or burglary, to discharge the jury, and remit the prisoner for 
 another trial. 
 
 In the case of the two Kinlocks, (Foster, 22 to 40,) to which I have already alluded, the 
 single point decided was, that the court might, in a capital case, on motion of the prisoner's 
 counsel, and at his request, and with the consent of the attorney-general, before evidence 
 given, discharge the jury, to let in a new defence, which the prisoner could not otherwise 
 have ; but the general question, touching the power of the court to discharge jurors, under- 
 went a full and solemn discussion, and all the cases that I have mentioned, were cited and 
 examined. Ten of the English judges gave their opinions seriatim, and according to the 
 elaborate and able argument of Sir M. Poster, which he has preserved entire, and which we 
 may consider as the opinion of all the judges, except one, as all but one agreed in the same 
 principles and result, the court came to this decision ; that the general rule, as laid down by 
 Lord Coke, had no authority to warrant it, and could not be universally binding. That the 
 question was not capable of being determined by any general rule, for that none could go- 
 vern the discretion of the court, in all possible cases and circumstances, and that the case in 
 Carthew was of little or no weight, and must have arisen from a mistake in the reporter. 
 Sir M. Foster stated several exceptions to the general rule of Coke, and said that many more 
 might be mentioned. Among other instances, he admitted the right of the court to discharge 
 the jury after evidence given, because the indictment did not suit the case, and had been 
 mistaken by the prosecutor; and this power is also recognized in several of the books. 
 Comb. 401 ; Kelynge, 26, 52. He further admitted the right of the court, in the cases stat- 
 ed from Ventris and Hale, where practices had been used to keep the witnesses out of tho 
 way; though he reprobated, and very justly, the extent to which it had been carried, in 
 other instances, where tho evidence was not sufficient to convict. St. Tr. vol. 2, p. 110, 
 827. 
 
 The instances in which tho court has exercised its discretion in discharging the jury, have 
 multiplied since the time of Poster, and have now become very considerable in point of num- 
 ber and importance. If a prisoner be found to be insane, (1 Halo, 35,) or in a fit, (Leach, 
 443,) or be taken in labor, (Foster, 76.) or if a juror escape from his fellows and go off, (2 
 
IK WHAT- CASES THE JURY MAT BE DISCHARGED. 172 — 2 
 
 main imprisoned until another jury can be charged with him, (a) unless 
 in the meantime he be bailed. 
 
 (a) E. v. Newton, supra. 
 
 Hale, 296,) or be taken' in a fit, or be intoxicated ; in all these cases it has been ruled, that 
 the court may discharge the jury, and remand the prisoner for another trial. 
 
 The general rule, as laid down by Coke, and most of the cases on the subject relate to 
 trials for capital ofi'ences, and even there we have seen how far the rule has been justly ques- 
 tioned, if not wholly done away ; and the many exceptions which are conceded to exist 
 against its universality. But the case now before the court is a case of misdemeanor only, 
 and the precise question is, whether, in such case, it does not rest in the discretion of the 
 court to discharge the jury, whenever they deem it requisite to a just and impartial trial. 
 It is worthy of notice, that there is no general rule, nor any adjudged case, denying this 
 power in the court, in the case of a misdemeanor. The resolution of Holt, as it appears in 
 its correct and authentic state in Foster, and the decision of Lord Hardwicke, only go to re- 
 strict the undue exercise of this power, on trials for misdemeanors, by denying to the prose- 
 cutor the liberty of having a juror withdrawn, because he happens, after entering into his 
 testimony, to find himself unprepared through his own default ; and even this extraordinary 
 indulgence is granted, according to Hardwicke, if the punishment annexed to the offence be 
 not infamous. 
 
 If the question in capital cases be doubtful, there is nothing to render it so in cases of mis- 
 demeanor. The power of the court in those cases is analogous to their power in civil cases ; 
 and they seem, in many respects, to possess the same control over the verdict, in exercising 
 the power of awarding new trials, (6 Term Rep.. 688 ; T. Jones, 163 ; 1 Lev. 9 ; 21 Vin. 
 418 ; Loft. 147 ; 4 Bl. Com. 355 ; Ridg. 51 ; 1 Lev. 9,) and taking a privy verdict ; (T. Raym. 
 193 ;) and the party is also entitled to a writ of error, as a matter of right. Laws of New 
 York, vol. 1, 184. 
 
 I conclude, then, that as no general rule or decision that I have met with, exists to the 
 contrary, in a case of misdemeanor ; and as the rule, even in capital cases, abounds with ex- 
 ceptions, and is even questioned, if not denied by the most respectable authority, that of nine 
 of the judges of England, it must, from the reason and necessity of the thing, belong to the 
 court, on trials for misdemeanors, to discbarge the jury whenever the circumstances of the 
 case render such interference essential to the furtherance of justice. It is not for me here to 
 say, whether the same power exists in the same degree, (for to a certain degree it must in- 
 evitably exist,) on trials for capital crimes, because such a case is not the one before the 
 court ; and I chose to confine my opinion strictly to the facts before me. 
 
 With respect to misdemeanors, we may, with perfect safety and propriety, adopt the lan- 
 guage of Sir M. Foster, (p. 2.9,) which he, however, applies even to capital crimes; "that it 
 is impossible to fix upon any single rule which can be made to govern the infinite variety of 
 cases that may come under the general question touching the power of the court to discharge 
 juries sworn and charged in criminal cases." If the court are satisfied that the jury have 
 made long and unavailing efforts to agree ; that they are so far exhausted, as to be incapa- 
 ble of further discussion and deliberation, this becomes a case of necessity, and requires an 
 interference. All the authorities admit, that when any juror becomes mentally disabled, by 
 sickness or intoxication, it is proper to discharge the jury ; and whether the mental inability 
 be produced by sickness, fatigue, or incurable prejudice, the application of the principle 
 must be the same. So it is admitted to be proper to discharge the jury when there is good 
 reason to conclude the witnesses are kept away, or the jury tampered with, by means of the 
 parties. Every question of this kind must rest with the court, under all the particular or 
 peculiar circumstances of the case. There is no alternative ; either the court must determine 
 when it is requisite to discharge, or the rule must be inflexible, that after the jury are once 
 sworn and charged, no other jury can, in any event, be sworn and charged in the same cause. 
 The moment cases of necessity are admitted to form exceptions, that moment a door is open- 
 
172 — 3 VERDICT. 
 
 There are otter cases, also, where from necessity the. judge is obliged 
 to discharge the jury. Where, during a trial for murder, one of the 
 
 ed to the discretion of the court, to judge of that necessity, and to determine what combi- 
 nation of circumstances will create one. See The People v. Okott, 2 Johnson's Cases, 300. 
 
 In Pennsylvania, ( Commonwealth v. Cook, 6 Serg. & Rawl. 577,) it was decided, after great 
 consideration, and a review of all the cases, ancient and modern, tliat a jury could not be 
 discharged because they were unable to agree. And, in North Carolina, the doctrine has 
 been carried to the extent of declaring, that when the jury did not agree within the time 
 during which the court was authorized to continue, that the omission to return a verdict, 
 was equivalent to an acquittal, and that the prisoner was entitled to be discharged, as he 
 could never be legally tried by another jury. Ex parte Spear, 1 Dever. 491 ; The State v. 
 Garriques, 2 Hayw. 241. 
 
 In the case of The People v. Goodwin, (18 John. Rep. 187,) the court, per Spencer, Ch. J., 
 concluded, upon full consideration, that "although the power of discharging a jury, is a 
 delicate and highly important trust, yet, that it does exist in cases of extreme and absolute 
 necessity, and that it may be exercised without operating as an acquittal of the defendant ; 
 that it extends as well to felonies as misdemeanors ; and that it exists and may be discreetly 
 exercised in cases where the jury, from the length of time, they have been considering a 
 cause and their inability to agree may be fairly presumed, as never likely to agree, unless 
 compelled so to do, from the pressing calls of famine or bodily exhaustion." 
 
 In Alabama, in the case of Ned v The State, (7 Porter Rep. 188,) the following points 
 were made : 1st. That courts have not, in capital cases, a discretionary authority to discharge 
 a jury after evidence given. 2d. That a jury is, ipso facto, discharged by the termination 
 of the authority of the court to which it is attached. 3d. That a court does possess the- 
 power to discharge, in any case of pressing necessity, and should exercise it whenever such 
 a case is made to appear. 4th. That sudden illness of a prisoner, or a juror,, so that the trial 
 cannot proceed, are ascertained oases of necessity, and that many others exist, which can 
 only be defined when particular cases arise. 5th. That a court does not possess the power, 
 in a capital case, to discharge a jury because it cannot or will not agree. 
 
 In The State v. Ephraim, (2 Dev. & Batt. Rep. 162,) it was held that a jury, charged in a 
 capital case cannot be discharged before returning the verdict at the discretion of the court ; 
 they cannot be discharged without the prisoner's consent, but for evident urgent overruling 
 necessity, arising from some matter occuring during the trial, which was beyond human 
 foresight and control; and, generally Bpeaking, such necessity must be set forth in the 
 record. 
 
 In an early case in Tennessee (State v. Waterhmtse, Martin & Terger, Rep. 278,) it was 
 held that it was discretionary with the court, even in capital cases, to discharge the jury. 
 But in a later case (Maliala v. The State, 10 Yerger, 533,) where the jury were empanneled 
 on Thursday evening, at 2 o'clock; they came in once or twice during the same evening,, 
 and declared that they could not agree ; they were, however, kept together all night by the 
 court, and, at 9 o'clock the next morning, upon their declaring they could not agree, the 
 court discharged them. The term was not concluded until the next day, (Saturday.) It 
 was held, that this was not such a case of neoessity as authorized the court to. discharge 
 them. It was out of the power of the court, it was said, to disoharge them without consent, 
 except in case of sickness, insanity, or exhaustion, among themselves. , 
 
 In Pennsylvania, North Carolina, Tennessee, and Alabama, it seems to have been held 
 that where any separation of the jury, except by consent, or in case of such violent neces- 
 sity, as may be considered the act of God, is held a bar to all subsequent proceedings. On 
 the other hand, that the discharge of the jury is a matter of pure discretion for the court, 
 and that when in the exercise of a sound discretion, it takes place, it presents no impedi- 
 ment to a second trial has been held by the supreme court of the United States, by Wash- 
 ington, J., Story, J., and M'Lean, J., sitting in their several circuits, and by the courts of 
 Massachusetts, New-York, and Mississippi. 
 
IN WHAT CASES THE JURY MAT BE DISCHARGED. 172—4 
 
 jury was seized with a fit, and was carried out of the court in a state of 
 insensibility : and after the court had waited some time, it was deposed 
 on oath that he was not in a fit state to return immediately : Lawrence, 
 J., discharged the jury, and ordered another jury (consisting of the re- 
 maining eleven jurors, and a twelfth from the jury panel) to be sworn ; 
 and the prisoner was thereupon tried, convicted, and executed.(a) The 
 same also occurred before Wood, B., in 1812, upon the trial of one Ed- 
 wards, for maliciously shooting, and the point being reserved for the 
 opinions of the judges, they were unanimously of opinion that the 
 judge had acted rightly.(6) So where a defendant, in the case of a mis- 
 demeanor, became so ill, that he could not remain at the bar, the judge 
 discharged the jury; and afterwards during the same assizes, upon his 
 recovery, another jury were charged with him, and the whole of the 
 proceedings were commenced de novo.(c) So, where on a trial for man- 
 slaughter, it was discovered, after the swearing of the jury, that the 
 surgeon who had examined the body was absent : upon the prisoner re- 
 questing that the jury should be discharged, they were accordingly dis- 
 charged, and the prisoner was tried on the next day by another jury.(c£) 
 And upon a trial for high treason, where after the jury was sworn, it 
 was intimated by one of the judges, that the defence the prisoners in- 
 tended to set up, could not be given in evidence under the 
 general issue that was *pleaded, the jury, with the consent of [_*173] 
 the attorney -general, was discharged, and the prisoners allowed 
 to plead de novo, specially; and they were afterwards tried by another 
 jury.(e)[l] 
 
 (a) B. v. Scalbert, 2 Leach, 620. (d) B. v. Stokes, 6 Car. & P. 151. 
 
 (6) E. v. Edwards, R. & Ry. 224, 3 Camp. {A) B. v. Alexander & Charles Kinloch, Fost. 
 
 207, 4 Taunt. 309. 16, 1 Wils. 15?. 
 (c) B. v. Streek, 2 Car. & P. 413. 
 
 [I] In cases of absolute necessity, the jury may be discharged. Commonwealth v. Cook, 6 
 Serg. & Rawle, 57"? ; Commonwealth v. Clew, 3 Rawle, 498; in re Robert Spear, 1 Devereux, 
 491; State v. M'Kee, I Bailey, 154. See 2 Russell, 553, n. (A.).; 1 Cowen, 225, 226, in 
 notes. So where it is necessary for the purposes of justice. United States v. Gooledge, 2 
 Gall. 364; United States v. Perez, 9 Wheat. 579. 
 
 Where the term of the court expired, and the jury separated after they were charged with 
 the trial, and before they returned a verdict, it was held that the prisoner could not be tried 
 again. In re Robert Spear, 1 Devereux, 491. See State v. Garrigues 1 Hayw. 241. But 
 when the jury in the trial of a capital case cannot agree upon a verdict, the court have dis- 
 cretionary power to discharge them, and the prisoner may be put on his trial before another 
 jury.. Commonwealth v. Purchase, 2 Pick. (2d ed.) 521, and notes to that case; Common- 
 weaUJi v. Knapp, 9 Pick. 515 ; People v. Goodwin, 18 Johns. 200 ; State v. M'Kee, 1 Bailey, 
 651; People v. Green, 13 Wendell. 55. But see Commonwealth v. Cook, 6 Serg. & Rawle, 
 577 ; Commonwealth v. Clew, 3 Rawle, 498, contra. Tennessee. — The cases of necessity which 
 - will authorize the court to discharge a jury, are of three slasses ; 1st, where the court are 
 compelk-d to adjourn before 1 the jury agree; 2d, where the prisoner by his own conduct, 
 places it out of the power of the jury to investigate his case correctly, or where, by the vis- 
 
 64 
 
173 VERDICT. 
 
 On the other hand, where a person is indicted for a misdemeanor, 
 and upon the evidence it turns out to be a felony, the judge may dis- 
 charge the jury, and order the party to be indicted for the felony ;(a) 
 or the jury may find him guilty of the misdemeanor.(J) And lastly, 
 where an indictment for a misdemeanor was clearly bad upon the face 
 of it, Abbott, C. J., discharged the jury from giving any verdict upon 
 it.(c). 
 
 (a) 14 & 15 Vict. c. 100, s. 12. (c) R v. Deacon, Ry. & M. N. P. 0. 27. JR. 
 
 (6) Id. T. Eollis, 2 Stark. 536. 
 
 itation of Providence, he is prevented from attending to his trial ; and 3d, where there is no 
 possibility for the jury to agree and return a verdict. Mahala v. State, 10 Verger, 232. 
 
 The discharge of .a jury, in a criminal case, without agreeing on a verdict, rests in the 
 sound discretion of the court in which the trial is had ; and the exercise of such discretion 
 will not be reversed on writ of error. So held when the jury were discharged after being 
 out only 30 minutes. 13 Wend. 55. If a juryman be taken ill, so as to be incapable of 
 attending through the trial, the jury may be discharged and the prisoner tried de novo, or 
 another juryman may be added to the eleven ; but in that case the prisoner should be of- 
 fered his challenges over again, as to the eleven, and the eleven should be sworn de novo. 
 Russ. & Ry. C. C. 224 ; 4 Taunt. 309. So if during the trial the prisoner be taken so ill that 
 he is incapable of remaining at the bar, the judge may discharge the jury, and on the pris- 
 oner's recovery another jury may be returned, and the proceedings commenced de novo. 
 The court, on a trial for a misdemeanor, doubted whether in such a case the consent of coun- 
 sel was sufficient to justify the proceeding with the trial in the absence of the defendant. 
 Roscoe's Or. Ev. 177 ; 2 Car. & P. 432. 
 
 In cases not capital, where there is no prospect of agreement, a juror may be withdrawn 
 without the defendant's consent. 9 Mass. R. 494; 12 id. 316; 2 John. Cas. 301, 275 ; 2 
 Caines' Rep. 100. And in capital cases, the court may discharge a jury in case of neces- 
 sity; (4 Wash. 0. C. Rep. 402 ; 6 Serg. & Rawle, 580;) but mere inability to agree, is not 
 such a case, nor does it arise from the illness of some of the jury, if such illness can be re- 
 moved by permitting refreshments, and the court, against the consent and prayer of the pris- 
 oner, refuses such refreshments, unless a majority of the jury agree to receive them. If, 
 under such circumstances the jury are discharged, the prisoner may plead it in bar to an- 
 other trial. 3 Rawle, 498. 
 
 If it should appear in the course of a trial that the prisoner is insane, the judge may order, 
 the jury to be discharged, that he may be tried after the recovery of his understanding. 1 
 Hale's P. C. 34; Russ. & Ry. C. C. 431, (n). " In this state, it is not a matter of discretion 
 with the court, whether it will try a person who is insane,, or not ; for by statute, no insane 
 person can be tried or punished for any crime or offence, while he continues in that state. 
 
 2 R. S. 697, § 2. 
 
 When the evidence on both sides is closed, or after any evidence has been given, the jury 
 can not be discharged, unless in case of evident necessity, (as in the cases above mentioned,) 
 till they have given in their verdict, but are to consider of it and deliver it in open court. 
 But the court may adjourn, while the jury are withdrawn to confer, and may return to re- 
 ceive the verdict in open court. 4 Black. Com. 360 ; Roscoe's Cr. Ev. 177. And when a 
 criminal trial runs to such length that it can not be concluded in one day, the court, by its 
 own authority, may adjourn till next morning. But the jury must be kept together, (at 
 least in a capital case,) so that they may have no communication but with each other. 6 T. 
 R. 527 ; Steph. Sum. Cr. L. 313. It is a general rule, that upon a criminal trial, there can 
 be no separation of the jury after the evidence is entered upon, and before a verdict is given. 
 Roscoo's Cr. E. 178 ; 1 Hayw. 241. 
 
DELIVERY OP THE VERDICT. 173 — 1 
 
 (b) Delivery of the verdict. 
 
 If the jury retire, then, upon their afterwards returning into court, 
 the clerk of arraigns at the assizes, or the clerk of the peace at sessions 
 addresses them thus : " Gentlemen of the jury, answer to your names ;" 
 he then calls over their names, and the jurors respectively answer. 
 They should all be in court at the time the verdict is given. 
 
 As soon as the jury are ready to deliver their verdict, the clerk of 
 arraigns or clerk of the peace addresses them thus : " Gentlemen, have 
 you agreed upon your verdict ? Who shall say for you ? Your fore- 
 man. How say you, do you find the prisoner [or defendant] A. B. 
 guilty of the [felony] whereof he stands indicted, or not guilty ? Do 
 you find the prisoner C. D. guilty of the [felony] whereof he stands 
 indicted, or not guilty." 
 
 The jurors answer " guilty," or " not guilty ;" or they may say, " "We 
 find him guilty of stealing, but not in the dwelling house to the value 
 of five pounds," or "not guilty of burglary, but guilty of the stealing," 
 or the like. The verdict must be delivered openly in court, (a) [2] 
 
 (c) For a less offence than is charged. 
 
 There are several cases where a greater offence includes a less ; and 
 upon an indictment for the greater offence, the jury may find the priso- 
 ner guilty of the less. As for instance, — 
 
 Upon an indictment for murder, the jury may find the prisoner not 
 guilty of the murder, but guilty of manslaughter.(a) 
 
 (a) 2 Hawk. o. 47, s. 2; Co. Lit. 227; 3 (5) 2 Hawk. c. 47, ss. 4, 5. 
 Inst. 110. 
 
 [2] The verdict in all cases_ of felony and treason, must be delivered in open court, in the 
 presence of the defendant.- 1 Chit. Cr. Law, 636; 1 Wend. Rep. 91; 1 Term Rep. 434. 
 But in all trials for inferior misdemeanors, or where no corporal punishment is to be inflicted, 
 a privy verdict may be given, and there is no occasion for the presence of the defendant. lb. 
 And it seems that in' England, by consent of parties, it may be delivered at the house of the 
 judge, even where it is situated beyond the limits of the county in which the trial was had, 
 5 Burr. 2667. But no such rule exists here. 
 
 Upon the triarof an indictment, the concurrence of the whole jury is necessary to a 
 conviction, and the jury may be polled to ascertain the fact of concurrence. State v. Harden, 
 1 Bailey, 3. 
 
 The practice of permitting the jury to be polled, is not uniform through the states. That 
 they may be polled, see the following cases. State v. Allen, 1 M'Cord, 525 ; Martin v. Ma- 
 verick, id. 24 ; Nomaque v. People, 1 Breese, 111 ; People v. Perkins, 1 Wendell, 91 ; Fox v. 
 Smith, 3 Cowen, 23 ; Jaclcson v. Hawks, 2 Wendell, 619 ; State v. Harden, 1 Bailey, 3 ; 
 Sargent v. State, 11 Ohio, 472. 
 
 The court does not permit the jury to be polled in Massachusetts, either in civil or crimi- 
 nal cases. Bopps v. Barker, 4 Pick. 239 ; Commonwealth v. Eoly, 12 Pick. 496. So in 
 Maine, Fellowe's case, 5 Greenl. 333. 
 
173 — 2 VERDICT. 
 
 Upon an indictment for burglary and larceny, the jury may find the 
 prisoner not guilty of the burglary, but guilty of the larceny.(o) 
 
 Upon an indictment for breaking a house, shop, or warehouse, and 
 stealing therein, the jury may find the prisoner not guilty of the break- 
 ing and entering, but guilty of the simple larceny, or (in the case of a dwel- 
 ling-house) of stealing in the dwelling-house to the value of 51. 
 [*174] *Upon an indictment for stealing from a dwelling-house to 
 the value of 5/., or some person therein being put in fear, 
 the jury may find the prisoner guilty of the simple larceny.(fi) 
 
 Upon an indictment for robbery, the jury may find the prisoner not 
 guilty of the robbery, but guilty of the stealipg from the person,(c) or 
 guilty of an assault with an intent to Tob.(d ) 
 
 Upon an indictment for any felony or misdemeanor, the jury may 
 find the prisoner not guilty of the felony or misdemeanor, but guilty 
 of an attempt to commit it.(e) Formerly, upon all indictments on stat. 
 1. Vict. c. 85, for stabbing, cutting, wounding, &c, or for any felony 
 which included an assault, the defendant might be acquitted of the fel- 
 ony, and found guilty of the assault ;(g) but that section is now repealed ; 
 indeed it was no longer necessary, when the more general enactment 
 above-mentioned was made, that upon an indictment for any felony, 
 &c, the defendant may be found guilty of an attempt to commit it. [1] 
 
 (d) For another offence than that charged, 
 
 Upon an indictment for embezzlement, the jury may find the priso- 
 
 (o) 2 Hawk. o. 47, s. 11. (d) 14 & 15 Vict. o. 100, s. 11. 
 
 (6) See 2 Hawk. c. 47, s. 12. (e) 14 & 15 Vict. c. 100, s. 9. 
 
 (c) B. v. Walk et al, 2 Car. k K-. 214. (g) 1 Vict. c. 85, s. 11. 
 
 [1] The New York Revised Statutes provide that upon an indictment for any offence con- 
 sisting of different degrees, the jury may find the accused not guilty of the offence in the 
 degree charged in the indictment and may find such accused person guilty of any degree of 
 such offence inferior to that charged in the indictment, or of an attempt to commit such, 
 offence. 2 T$. T. Eev. Sts. 4th ed. p. 886, see. 31. 
 
 In Massachusetts it is enacted, that whenever any person indicted for a felony shall on the 
 trial be acquitted by verdict of part of the offence charged in the indictment and convicted 
 of the residue thereof, such verdictmay be received and recorded by the court ; and there- 
 upon the person indicted shall be adjudged guilty of the offence, if any, which shall appear 
 to the court to be substantially charged by the residue of such indictment, and shall be 
 sentenced and punished accordingly. Rev. Stat. eh. 137, § 11. Under this section of the 
 statute of Massachusetts, it has been decided, that the prisoner under an indictment for a 
 rape committed upon his own daughter, may be acquitted of the rape and convicted of incest. 
 Commonwealth v. Goodhue, 2 Metealf, 193. 
 
 A defendant indicted for assault and battery with intent to murder, may be convicted of 
 a simple assault and battery, (ireater offences include the lesser of a kindred character. 
 State v. Stedman, 7 Porter, 495. See Stewart v. State, 5 Ohio, 242 ; State v. Gaffney, Rice, 
 431 ; Commonwealth v. Drum, 19 Pick. 479 ; Same v. Hope, 22 Pick. 1, 7 ; Same v. Griffin, 
 21 Pick, 523 ; People v. Jachson, 3 Hill, 92. 
 
FOR THE OFFENCE CHARGED, THOUGH ANOTHER PROTED. 174 
 
 ner 'not guilty of the embezzlement, but guilty of simple larceny, or 
 guilty of larceny as a clerk or servant.(a) 
 
 Upon an indictment for larceny, the jury may find the prisoner not 
 guilty of the larceny, but guilty of embezzlement.(5) 2] 
 
 Upon an 1 indictment for a larceny at one time, the jury may find the 
 prisoner guilty generally, although the prosecutor gave evidence of 
 three different takings of parcels of the goods within six months.(c) 
 
 Upon an indictment against two or more for jointly receiving stolen 
 goods, the jury may find all or any of them guilty, who shall be proved 
 to have separately received any portion of the goods, knowing the same 
 to have been stolen. (d ) 
 
 Upon an indictment against a woman for murder of her child, the 
 jury may find her not guilty of the murder, but guilty of concealing 
 its birth.(e) 
 
 (e) For the offence charged, though another proved. 
 
 Upon an indictment for obtaining money by false pretences, the jury 
 may find the prisoner not guilty, although the offence upon the evi- 
 dence turn out to be larceny.(^) But if he be indipted for a larceny, 
 the jury cannot find him guilty, if the offence upon the evidence turn 
 out to be an obtaining of money or goods by false pretences. 
 
 *Upon an indictment for a misdemeanor, the jury may find [*175] 
 the defendant guilty, though the evidence prove a felony.(A) 
 The court, however, may in such a case discharge the jury, and order 
 the defendant to be indicted for the felony.(t) 
 
 Upon an indictment against a party as principal in a felony or mis- 
 demeanor, the jury may find him guilty, although the evidence prove 
 that he was not present at the time the offence was committed, but 
 merely incited, procured, or advised another party to commit it.(&) 
 
 (a) 14 & 15 Yict. o. 100, s. 13. (g) 7 & 8 G. 4, e. 29, s. 53. 
 
 (6) lb. Qi) 14 & 15 Yict. o. 100, s. 12. See ante, 
 
 (c) See 14 & 15 Yict. o. 100, a., 11. See p. 95. 
 ante, p. 95. (*) Id. 
 
 (d) 14 & 15 Yict. c. 100, s. 14. (k) See ante, pp. 16, 96. 
 
 (e) 9G. 4, C..31, s. 14. 
 
 [2] In Massachusetts, in Com. v. Simpson, (9 Mete. Rep. 138,) the court were of opinion 
 that the two offences of larceny and embezzlement were so far distinct in their character, 
 that under an indictment charging merely a larceny, evidence of embezzlement was not suf- 
 ficient to authorize a conviction ; and that in cases of embezzlement, the proper mode was 
 to allege sufficient matter in the indictment to apprise the defendant that the charge was for 
 embezzlement. The statute of Massachusetts, (R. S. c. 126, s. 30,) in terms says that the 
 person doing certain acts, " shall be deemed, by so doing, to have committed the crime of 
 simple larceny." The court, in the foregoing case, say : " Treating this statute as one de- 
 fining the offence of larceny, and embracing within it a larger range of offences, to be here- 
 after known as larcenies, we do not feel authorized to give so broad a construction to this 
 statute, as would entirely merge the crime of embezzlement in that of larceny." 
 
175 VERDICT. 
 
 Upon an indictment against a man as principal in the first degree, 
 the jury may find him guilty, though the evidence prove him to have 
 been a principal in the second degree ; and upon an indictment against 
 a man as principal in the second degree, the jury may find him guilty, 
 although the evidence prove him to have been a principal in the first 
 degree.(a) 
 
 Where two -were indicted for murder, A. in the first count being 
 indicted as principal in the first degree, and B. as being present-aiding 
 and abetting, and in the second count B. was indicted as principal in 
 the first degree, and A. with being present aiding and abetting ; and 
 the jury found them- guilty, but said that they were not satisfied as 
 to which of them actually committed the murder : the judges (Maule, 
 J., dis.) held that the jury were not bound to find the defendants guilty 
 on one of the counts only, but might find them guilty on both. (6) 
 
 (/) On several counts. 
 
 By stat. 11 & 12 Vict. c. 46, s. 3, which enables a prosecutor to in- 
 clude a court for stealing money or goods, and a count for receiving 
 the same knowing them to have been stolen, in the same indictment 
 against the same person or persons, — it is enacted, that' " where any 
 such indictment shall be preferred and found against- any person, the 
 prosecutor shall not be put to his election, but it shall be lawful for the 
 jury, who shall try the same, to find a verdict of guilty, either of steal- 
 ing the property or of receiving it knowing it to have been stolen ; and 
 if such indictment shall have been preferred and found against two or 
 more persons, it shall be lawful for the jury who shall try the same, to 
 find all or any of the said persons guilty, either of stealing the property 
 or of receiving it knowing it to have been stolen, or to find one or 
 more of the said persons guilty of stealing the property, and the other 
 or others of them guilty of receiving it knowing it to have been sto- 
 len."^] 
 
 (a) Ante, p. 13. (6) R- v. Downing et dk, 1 Den. OC. 52. 
 
 [1] See Harmon v. Com., 12 Serg. & Rawle, 69 ; Com. v. Gillespie, 7 Serg. & Rawle, 476 ; 
 U. S. v. Peterson, 1 W. & M. 305; People v. Costelh, 1 Denio, 83; Baker v. State, 4 Pike's 
 (Ark.) 56 ; People v. Eynders, 12 Wend. 425 ; Edge v. Com., 7 Barr. 275 ; Coulter v. Com., 5 
 Met. 532 ; State v. Kirby, 7 Miss. 317 ; Com. v. Manson, 2 Ashm. 31 ; Res. v. Eevice, 2 Yeates, 
 114; Carlton v. Com., 5 Mete. 532 ; Kane v. People, 9 Wend. 203; Cory v. State, 3 Porter, 
 186 ; State v. Anderson, 1 Strobh. 445 ; State v. Thompson, 2 Strobh. 12 ; Buck v. State, 2 
 Hair. & John. 426; State v. Montague, 2 M'Oord, 287; State v. Caffney, Rice's Rep. 531; 
 State v. Nelson, 29 Maine, 324. 
 
 The introduction of several counts which merely describe the same transaction in different 
 ways, cannot, in general, be made the subject of objection. Nor will the defect of some of 
 tho counts affect tho validity of the remainder, for judgment may be given against the de- 
 fendant upon those which are valid. 
 
ON -SEVERAL COUNTS. 175—1 
 
 In other cases, where there are two or more counts in the indictment 
 if the prosecutor be not put to his election to say on Which he will 
 proceed, the jury may convict on any one of them, or on all. If, how- 
 ever, they find a general verdict of guilty on all, and one 
 count turns out to be bad, — although *this cannot be made [*176] 
 matter of objection in arrest of judgment, (a) it will be bad on 
 error.(S) In order to avoid this, it is usual to have a separate judgment 
 on each count, and~ as all will take effect at the same time, the punish- 
 ments will not be cumulative, and if one of the counts be bad, it will 
 not affect the others. Where in one count A. B. was indicted for the 
 murder of J. N. by a blow of a stick, and C. D. and E. P. indicted, as 
 being present aiding and abetting, and in a second count C. D. was in- 
 dicted for the murder by throwing a stone, and A. B. and E. F. as being 
 present aiding and abetting, and a general verdict given : this was ob- 
 jected to, as it left it uncertain whether the stick or stone caused the 
 death ; but the judges held it immaterial, the mode of death in both 
 counts being substantially the same.(c)[l] 
 
 (a) Grant v. Astle, 2 Doug. 730. Ayrey et (b) O'ConneWs case, Ho. Lords, 1844. 
 
 al v. Fearnsides et al, 4 Mees. & "W. 168. (c) R. v. O'Brien et al, 1 Den. CO. 9. See 
 
 Lewin v. Edwards, 1 Dowl. N. C. 639. Chad- also B. v. Downing et al., supra, 
 wick v. Trower et al, 8 Law J. 286 ex. 
 
 [1] The jury may acquit the defendant of a part, and find him guilty as to the residue. Thus, 
 they may convict him upon one count of the indictment, and acquit him of the charge con- 
 tained in another ; or upon one part of a count capable of division, and not guilty of the other 
 part, as on a count for composing and publishing a libel, the defendant may be found guilty 
 of publishing only. 1 Chit. Cr. L. 637. But if, upon an indictment containing two distinct 
 charges of different offences, punishable differently, a general verdict of guilty is rendered, 
 a new trial will be granted. 2 McCord, 257. Tet, in general, where, from the evidence, it 
 appears that the defendant has not been guilty to the extent of the charge specified, he may 
 be found guilty as far as the evidence warrants, and be acquitted as to the residue ; as where 
 he is charged with engrossing one thousand quarters of wheat, and the evidence amounts to 
 but seven hundred. 1 Chit. Cr. L. 637; 2 Camp. 583. 
 
 And where the acousation includes an offence of inferior degree, the jury may discharge 
 the defendant of the higher crime, and convict him of the less atrocious. Thus, upon an in- 
 dictment for burglariously stealing, the prisoner may be convicted of the theft, and acquitted 
 of the nocturnal entry ; upon an indictment for murder, he may be convicted of manslaugh- 
 ter; on an indictment for stealing privately from a person, he may be found guilty of lar- 
 ceny only ; on an indictment for grand, the offence may be reduced to petit larceny ; robbery 
 may be softened into felonious theft; and on an indictment founded on a statute, the defend- 
 ant may be found guilty at common law. 1 Chit. Cr. L. 638, 639. 
 
 So, under the revised statutes, on an indictment for an offence consisting of different de- 
 grees, the jury may find the accused not guilty of the offence in the degree charged in the 
 indictment, and guilty of such offence in any inferior degree, or of an attempt to commit 
 such offence. 2 R. S. 702, s. 27. 
 
 This provision of the statute has not affected the common law rule respecting the right to 
 convict of an inferior offence, on an indictment for a superior one. The People v. Jackson, 3 
 Hill, 92. Hence, it has been held, tbat under an indictment for producing an abortion of a 
 quick child, which, by the revised statutes, is a felony, the prisoner may be convicted, 
 
176 — 2 VERDICT. 
 
 (g) Against some of several. ■ 
 
 If several be jointly indicted for an offence, which in its nature may 
 be committed by one person or several, the indictment is considered in 
 law as a several indictment against each, and one may be convicted on 
 it and the rest acquitted.(a)[2] 
 
 (6) 2 Hawk. o. 47, s. 8; B. v. Taggart, 1 Car. & P. 201. 
 
 though it turns out that the child was not quick, and the offence was therefore a mere mis- 
 demeanor, lb. 
 
 If there are three counts in an indictment, and the jury convict the prisoner on the second, 
 finding nothing as to the first and third, the verdict should not be set aside on that account, 
 but the court should enter a verdict of acquittal on those two counts, although a verdict of 
 conviction may be entered on the second. 2 Vir. Cas. 235. 
 
 Each count in an indictment is a distinct charge, and a general verdict will be sustained, 
 although the counts are inconsistent. 5 Wheat. 184. It is not material of what part of the 
 charge the defendant is acquitted, if that part of which he is found guilty constitutes a spe- 
 cific indictable offence. Durham, v. State, 1 Blackf. 33. 
 
 Where, upon an indictment containing three counts, the jury find the defendant not guilty 
 on the first, and cannot agree on the others, the court may refuse to receive the verdict and 
 have it recorded. Barley v. State, 6 Ham. 399. 
 
 [2] Although several are frequently included in the- same indictment, yet, as the charge 
 is distinct against each of them, the jury may on the evidence, acquit some'of them and find 
 the others guilty. 2 St. Tr. 526; 3 T. R. 105. So where the jury have agreed as to one 
 or more of several prisoners, their verdict, as to them, ought to be received, though they 
 cannot agree as to the rest, and are 'from necessity discharged by the court. 6 Serg. & R. 
 517 ; 12 Mass. Rep. 313. Even where they are all charged with the same offence, some of 
 them may be acquitted and others convicted. 3 T. R. 105. 
 
 So, where two defendants are charged, one as principal in the first and the other in the 
 second degree, as being present, aiding and abetting, the latter may be found guilty, though 
 the former is acquitted. 1 Leach, 360. And they may be convicted of different degrees of 
 crime arising out of the same circumstances; as one of them of murder, and the other of 
 petit treason, on *ny indictment against both for the latter, (Post. 104;) but it has been con- 
 sidered that one of several defendants cannot be found guilty of burglary and the others of 
 larceny, when all are accused of the former. 1 Chit. Or. L. 640. 
 
 And where the charge is of such a nature that one, as in case of conspiracy, or two, m 
 that of riot, cannot be guilty without the union of others, if all the rest are acquitted, and 
 the indictment does not charge the offence to have been perpetrated in company with any 
 persons unknown, the verdict of guilty would be altogether repugnant and void lb.; 1 
 Hawk c 47 s 8- 'Poph. 202. But where one is indicted for a conspiracy, or two for a not, 
 with others, 'the conviction will be valid, though the others never come in to be tried, or die 
 
 before the time of trial. lb. 641. 
 
 If an accessory be indicted at the same time with the principal, if the latter be acquitted, 
 the former must also be acquitted, since his guilt is entirely inconsistent with the innocence 
 of him who is charged as principal. Stark. 332. ,,, . l Hi . 
 
 Where a count In a„ indictment contains only one charge against several defendan t he 
 jurv cannot find any one of the defendants guilty of more than one charge. Where here- 
 fore a connt charged several defendants with conspiracy together to do several illegal acts, 
 d t e T Mnd'one of them guilty of conspiring with some of f°^— ^ 
 o the act* and guilty of conspiring with others of the defendants to do another of the «* 
 sue find ng is bad, as amounting to a rinding that one defendant was gu.lt, -of two con- 
 SLS tlfough the count charged only one. O'OonneU v. Th* Queen, U Clark * Fin. 155 , 
 9 Jur. 25. 
 
SPECIAL VERDICT. 176—3 
 
 But there are certain offences which, cannot be committed by less than 
 a certain number of persons : for instance a riot, which cannot be com- 
 mitted by less than three persons ; and a conspiracy, not by less than two. 
 And therefore if several be indicted for a riot, and the jury acquit all 
 but two, they must acquit those two also, unless it be charged in the 
 indictment and proved, that they committed the riot together with some 
 other person not tried upon that indictment.(a)[3] So, if upon an in- 
 dictment for a conspiracy, the jury acquit all the defendants but one, 
 they must acquit that one also, however criminal they may think him, 
 unless it be charged in the indictment and proved, that he conspired 
 with some other person, not tried upon- that indictment.(6) So, if a 
 principal, and accessory either before or after the fact, be tried together 
 upon the same indictment, if the jury acquit the principal, they must 
 acquit the accessory also ; but they may acquit the accessory, and find 
 the principal guilty. 
 
 (h) Special verdict. 
 
 The jury may find a special verdict in criminal cases, as well as in 
 civil actions ; they may do so even in capital cases.(c) But in modern 
 practice this is very unusual. [4] 
 
 («) 2 Hawk. c. AH, s. 8. (c) 2 Hawk. o. 4.1, S3. 3, 9. 
 
 (b) lb. 
 
 Upon a count in an indictment against eight defendants, charging one conspiracy to effect 
 certain objects, a finding that three of the defendants are guilty, generally; that four of them 
 are guilty of conspiring to effect some, and not guilty as to the residue of the objects, is bad 
 in law, and repugnant; inasmuch as the finding that the three were guilty, was a finding 
 that they were guilty of conspiring with the other five to effect all the objects of the con- 
 spiracy ; whereas, by the same finding, it appeared that the other five were guilty of con- 
 spiring to effect only some of those objects. lb. 
 
 [3] In Illinois, if two or more persons being together do an unlawful act, with force and 
 violence against the person or persons of another, or a lawful act in a violent or tumultuous 
 manner, this constitutes a riot. Dougherty v. The People, 4 Scam. Sep. 179. Two or more 
 persons should actually be engaged in some physical act of violence, to constitute a riot in 
 Iowa. Scott v. U. S., 1 Morris. 142. 
 
 In Tennessee, the act of 1833 provides, that "if any person shall sell, or offer for sale, 
 fruits, breadstuff, confectionares, fermented liquors, or other articles of whatsoever kind or 
 description, within one mile of any worshipping assembly, so as to interrupt said worship- 
 ping assembly, they shall be dealt with as rioters at common law," &c. See West v. State, 9 
 Humph. Eep. 66. 
 
 Under a count charging several defendants with a riot, and assault and battery, though 
 there be a general acquittal of all of the riot, a conviction of one, of the assault and battery, 
 will be sustained. Shouse v. Com., 5 Barr. 83. 
 
 [4] Verdicts are either general as to the whole charge — partial as to part of it — or special 
 where the facts of the case alone are found, and the legal inference is referred to the judges. 
 4 Black. Com. 361. 
 
 No jury can be, compelled to give a general verdict, so that they find a special verdict 
 showing the facts respecting which issue is joined, and therein require the judgment of tha 
 court upon such facts. 2 E. S. 421, § 68 ; 1 Chit. Cr. L. 631. 
 
 65 
 
176 — 4 VERDICT. 
 
 A good finding on a bad count, and a bad finding on a good count, stand on the sam e 
 footing ; both being nullities. 0' Connell v. The Queen, 11 Clark & Fin. 155 ; 9 Jur. 25. 
 
 A general verdict of guilty is valid, if one count of the indictment is good, although the 
 others are defective. 1 John. 320 ; 1 Chit. Cr. L. 640 ; 1 Blackf. 319 ; 1 Stew. 231 ; 7 Ham. 
 R. 240 ; Breese, 191 ; 8 Green]. 113 ; 3 HilL 194. 
 
 No particular form of words is necessary to be followed with technical exactness in draw- 
 ing up a special verdict. It must positively state the facts themselves, and not merely tbe 
 evidence adduced to prove them. 1 Chit. Cr. L. 643. And all the circumstances constitu- 
 ting the offence must be found, in order to enable the court to give judgment. 2 Stra. 1015 . 
 For the court cannot supply a defect in the statement made by the jury on the record, by 
 any intendment or implication whatever. 2 East's P. C. 708, 784. Therefore, where the 
 indictment set forth that the defendant discharged a gun against the deceased, and thereby 
 gave him a mortal wound, and the jury only stated that he discharged a gun and thereby 
 killed him ; omitting that it was against him, it was adjudged that the court could not give 
 any judgment against the prisoner. Kel. Ill, Cowp. 830 ; 4 Burr. 2073 ; 2 Com. Rep. 480. 
 And a verdict, on an indictment for a conspiracy, that there was an agreement between A. 
 and the defendant, to obtain money from B., but with intent to return it again, is bad, and 
 the court cannot give judgment upon it. 2 John. Cas. 311. So where the jury, on an 
 indictment against an officer for taking unlawful fees, find that he took more than his legal 
 fees, but not corruptly, such finding was held tantamount to a verdict of acquittal. 2 Car. 
 Law Repos. 634. 
 
 To authorize the court to pronounce judgment on a special verdict, the legal affirmative or 
 negative conclusion must follow as a necessary consequence from the facts stated. 2 McCord, 
 129. It is sufficient, however, if the jury find all the substantial requisites of the charge 
 without following the technical language used in the indictment. 1 Chit. Cr. L. 644. Where 
 a fact is of a- transitory nature, the jury may find it to have occurred in another place within 
 the county than that named in the proceedings. Ibid. But they cannot find anything 
 essential to the charge to have occurred beyond the jurisdiction of the grand jury. 6 Coke, 
 47. Neither can they vary from the time and place laid when it was material to have proved 
 them in evidence. Com. Dig. Plead. S. 15. And it has been said that they ought expressly 
 to find all the material facts to have occurred within the county to which the province of the 
 court is limited. 1 Leach, 382 ; 6 Co. 47. 
 
 It does not seem necessary that the jury, after stating the facts, should draw any legal 
 conclusion. But if they do so, the court will reject the conclusion as superfluous, and pro- 
 nounce such judgment as they think warranted by the facts. 1 Chit. Cr. L. 645. 
 
 It is said to be the better opinion that though a special verdict cannot be amended in 
 matters of fact, yet the court may amend a mere error in form, even in capital cases, when 
 there are any notes or minutes by which it can be amended. Where the alteration is merely 
 to fulfill the evident intention of the jury, the court will in all cases allow it to be effected. 
 1 Chit. Cr. L. 645. But it will not amend by supplying facts incompatible with those found 
 by the jury. 2 M'Cord, 129. 
 
 A general like a special verdict, may be amended in matter of form, though not in any 
 substantial degree. 5 Burr. 2663 ; Dougl. 375. 
 
 If the jury, through mistake, or evident partiality, deliver an improper, (1 And. 104 ; 
 Alleyn, 12; 2 Hale, 299, 300; 2 Hawk. ch. 47, § 11,) or an informal or insensible verdict, 
 or one that' is not responsive to the issue submitted, (2 Murphy, 571,) they may be directed 
 by the court to reconsider it, and be recommended to make an alteration. Thus where tho 
 decision is repugnant, as if they find one alone guilty of a conspiracy, and acquit the other, 
 they will, on explanation that they cannot find that one person alone was guilty of a con- 
 spiracy, withdraw, and may on reconsideration, find both the defendants guilty. Bro. Abr. 
 Jurors, 7 ; Bac. Abr. Verdict, (G.) But it is said this has been seldom done in modern times, 
 when the decision is in the defendent's favor. 2 Hawk. ch. 47, §§ 11, 12 ; 1 Chit Cr. L. 
 
 648. 
 
 Where the verdict is so imperfect that no judgment can be given upon it, it will be set 
 aside and a venire de novo awarded, in misdemeanors. 1 Chit. Cr. L. 646 ; 2 McCord, 129 ; 
 
MOTION FOR A NEW TRIAL. 177 
 
 SECTION IT. [*177] 
 
 JUDGMENT, &C. 
 
 I shall treat of the proceedings from the verdict to the judgment and 
 allowance of costs, &c, under the following heads : — 
 
 1. Motion for a new trial, p. 177. 
 
 2. Motion in arrest of judgment, p. 178. 
 
 3. Judgment, p. 180. 
 
 4. Costs, p. 186. 
 
 5. Restitution of stolen goods, p. 192. 
 
 6. The record, p. 193. 
 
 1. Motion for a New Trial. 
 
 A new trial cannot be granted in a case of felony, even by the court 
 of Queen's Bench.(a)[l] That court may indeed grant it in the case of 
 
 (a) E. v. Maioley, 6 T. R. 638. 
 
 4 Leigh, 686. But it seems doubtful whether this ought to be done in capital cases ; (Id. ib. ; 
 
 1 Ld. Raym. 141 ; 2 id. 1585,) and at all events the court may enter a judgment of acquit- 
 tal. 1 Ld. Raym. 1586. Such a discharge, however, by reason of an imperfect verdict will 
 be no bar to another prosecution for the same felony. 3 P. Wins. 439. 
 
 When the jury are agreed; they deliver their verdict to the clerk of the court who records 
 it. In cases of felony, after the verdict is recorded the clerk, addressing the jury says, 
 " Gentlemen of the jury, hearken to your verdict as the court hath recorded it. Vou say 
 that A. B. is guilty (of murder in the first degree) in manner and form as in the indictment 
 against him is alleged ; and so say you all." When this is done, if none of the jury express 
 their dissent the verdict will stand as recorded. Until it is done the verdict is not perfected. 
 3 Robinson's Cr. Prac. 268. After the verdict is recorded it is a general rule that it can-not 
 be amended; (1 Chit. Cr. L. 648 ; 2 Hale, 299 ; Co. Lit. 227, b.,) unless indeed the mistake 
 appear and be corrected promptly. 1 Ry. & Moo. C. C. 45. Before it is recorded, however, 
 the jury may themselves rectify the verdict, and it will stand as amended. Co. Litt. 227, b. ; 
 
 2 Hale, 299, 300. A verdict may be received by the court on Sunday. 2 R. S. 205, § 7. 
 The revised statutes contain a general provision that the proceedings prescribed by law 
 
 in civil cases, in respect to the manner of rendering the verdict, shall be had upon trials of 
 indictments. Id. 735, § 14. 
 
 [1] The English rule that in no case of felony can a new trial be granted has no founda- 
 tion in reason, and has never been established as authority in our courts. There is no rea- 
 son why a man, who has been by surprise, by failure in proof, or for any of the numerous 
 causes for which new trials are granted in circuit suits, sho.uld be permitted another oppor- 
 tunity to eatablish the right, which does not exist and cannot be applied with more force for 
 allowing an innocent man, who has been wrongfully convicted, the right to assert and 
 prove his innocence by another trial. • A pardon may indeed terminate his imprisonment, 
 and restore him to the rights of citizenship, but he is yet a convict, by the unreversed judg- 
 ment of his peers. Cases may exist in which a new trial ought to granted, where a pardon 
 
177 — 1 JUDGMENT. 
 
 a misdemeanor ;(a) but they have always refused to do so, where the 
 defendant has been acquitted ;{b) and this even in the case of an indict- 
 
 (a) Id. See R. v. Simmons, 1 Wils. 329. 516; R. v. Praed, 4 Burr. 2256; R v. Rey- 
 (6) R. v. Brice, 2 B. & Aid. 606; R. v. neU, 6 East, 315. 
 Mann, 4M. iS. 337; R. v. Cohen, 1 Stark. 
 
 would be improper. In England, "if by the error of the jury or the judge, an innocent 
 man is condemned, be is sent to the mercy of the crown for redress. This mercy is but a 
 miserable relief, for the injury he has suffered. It may save his property from forfeiture, 
 and himself from the ignominy of the gallows, but the foul blot remaining on his reputation, 
 time does not obliterate it ; the grave does not cover it: it is an inheritable curse that must 
 and will be, the portion of his posterity. It is mockery to tell a man who has been unjustly 
 convicted that his redress is in a pardon. He feels and ever will feel that he has received 
 an incurable wound from that sword, which he, in common with his fellow citizens, had put 
 into the hands of the magistracy for their protection. The policy in respect to new trials, 
 which the English courts have pursued, has never been countenanced by our courts, and 
 would never be tolerated by our ^people." Marcy, J., in The People v. Stone, 5 "Wend. 42. 
 See also, The Peoples. The Judges of the Dutchess Oyer & Terminer, 2 Barb. Supm. C. Rep. 
 282. 
 
 " The question whether a motion for a new trial ought to be entertained," say the Brit- 
 ish commissioners, in their eighth report, pages 18, 24, ; ' is one of high importance to the due 
 administration of justice. It involves two main points : first, whether such a course is ma- 
 terial for the purpose of distinguishing between guilt and innocence, and if so, whether any 
 reason warrants the rejection of such a test. If any doubt should exist on the first ques- 
 tion, it is one which would most properly be decided by experience. On this point, however, 
 there is no room for doubt. Actual experience, not only in respect of civil, but even of 
 criminal proceedings, where the test is allowed to operate, proves its importance. In truth, 
 so long as human judgment is fallible, it must be necessary to use means for the correction 
 of error and mistake. It may be said that this cannot be done without delay and expense. 
 It cannot, however, be doubted that deliberate justice, although necessarily attended with 
 more or less delay, is preferable to the injustice incident to improvident haste, and necessa- 
 rily resulting from the neglect or reasonable means for the exclusion of error. The expendi- 
 ture of labor and cost in criminal investigations, can scarcely be placed in competition with 
 the evils which must inevitably result from want of due caution. The question resolves 
 itself mainly into this, whether the cost of correction can fairly be placed m competition 
 with the evils likely to result from the want of correction. 
 
 » We apprehend that the right, even of the legislature, to inflict capital punishment, rests 
 
 on the grounds of strict and cogent necessity, and that to go beyond that limit, involves a 
 
 ™Lion in foro coMi, which is criminal in the legislator himself. The Divme prohibi- 
 
 on Z y extends to every unwarranted destruction of human life. There is no auUiori y 
 
 o contro or limit it beyond that which may be inferred from strict necessity ; no hypothesis 
 
 1 h an b tarn d » to the origin of civil society, and the duty of obedience to its laws, 
 
 ?b wa an ItL that I legislator has, either expressly or impliedly, the power 
 
 can 
 
 nature th'e offence, thelfliction of a less penalty would be equally beneficial to socie y, 
 
 Traortiori, applicable, if reasonable and practicable means be not provide or a cert n- 
 
 nl nrcviousW to the infliction of capital punishment, and the accused is reaHy guilty of a 
 
 rfmc to which such a penalty is annexed by the law. Errors of the former kind apply on y 
 
 such ar actual deinquents; those of the latter involve the destrucUon of the.mno- 
 
 cent. 
 
 .■The observations thus applicable to capital punishment, are obviously -Wj«JV^ 
 although in an inferior degree, to the minor penalties of transportation, or loss of liberty, 
 
MOTION FOR A NEW TRIAL. 177—2 
 
 ment for non-repair of a highway .(a) In these latter eases, indeed, 
 instead of granting a new trial, the court stayed the entry of judgment, 
 
 (a) B. v. Silvorton, 1 "Wils. 268 ; R v. Bur- 1 B & Aid. 63 ; B. v. Sutton, 5 B. & Ad. 52. 
 ton, 5 M. & S. 392 ; but see B. v. Wandsworth, 
 
 even property ; the right to inflict the latter as well as the former, rests upon the principle 
 of necessity" for the prevention of wrong. 
 
 "It appears to us, that the law of England is at present very defective, as regards the 
 means afforded for the correction of errors in criminal proceedings ; and especially such as 
 are frequently, and indeed are almost necessarily, incident to the trial by jury. In this re- 
 spect, indeed, the law is inconsistent, in entertaining the motion for a new trial in some in- 
 stances, and denying it in others, without any adequate reason for the distinction ; and is 
 thus faulty, either in denying a new trial where it would be consistent with justice to grant 
 one, or in granting a new trial where it ought properly to be withheld. The instances in 
 which a new trial is grantable, are confined to those where the prosecution is for a misde- 
 meanor only, and is pending in the court of Queen's Bench. We cannot but observe that 
 the distinction thus made in the, first instance, between indictments for felony and those for 
 misdemeanor pending in the court of Queen's Bench, is one not warranted by any intelli- 
 gent principle. It would indeed seem to be more reasonable that, as the penalties for felony 
 are usually more severe than those which attach to a mere misdemeanor, larger means for 
 the correction of error should be afforded in the former case than in the latter. The distinc- 
 tion between cases of misdemeanor, pending in the court of Queen's Bench, and those pend- 
 ding in other criminal courts, seems also to be destitute of any sound principle. It may 
 perhaps, as to prosecutions removed from inferior courts into the court of Queen's Bench, be 
 said, that it is presumed that they are of more difficult investigation, and therefore that 
 more ample means ought to be allowed, for accurate inquiry and for the correction of errors. 
 This may occasionally be so ; but the presumption cannot possibly warrant so wide a dis- 
 tinction as that which is made in practice; the difficulties which give rise to the application 
 for a new trial, are frequently of a nature not to be foreseen, and often depend on the con- 
 duct of witnesses, or of the jury, or of the direction of a judge or presiding magistrate, 
 and not at all on the nature of the cause itself. Besides, as a defendant in a cause depend- 
 ing in the higher court, has always the benefit of being tried before one of the judges of the 
 superior courts, the proceedings are less likely to stand in need of correction, than they are 
 when the trial is had before an ordinary magistrate. 
 
 "It is also to be observed, that the distinction has been some times received with jeal- 
 ousy, as operating in favor of such as can well afford to remove the indictment into the 
 higher court, by writ of certiorari. 
 
 " A brief reference to the ancient law may not be unimportant, to show that the present 
 distinction is not warranted by any principle recognized by that law, but is in truth the 
 casual result of change in circumstances. Formerly, as appears from the ancient text writ- 
 ers and authorities, jurors were not persons who, like those of the present day, decided as 
 judges of facts upon the testimony of others ; they were themselves the very eye and ear 
 witnesses of the facts, or were persons likely, from proximity to the place in question, to 
 possess the best means of judging accurately ; and they determined according to their own 
 actual or presumed knowledge. There could therefore be no new trial, on the ground that 
 the testimony on which the verdict was founded was false or insufficient to warrant the ver- 
 dict. In doubtful cases, recourse was had to the trial by ordeal, or to a process of compur- 
 gation ; and it was not until after the abandonment of the former superstitious modes of 
 trial, that juries began to exercise the important duty of deciding upon evidence. The great 
 intrinsic defects incident to such a tribunal, and the inconvenience and injustice experienced 
 for want of due means of correction, at last occasioned a most important change in the law 
 as regarded civil causes, in admitting motions for new trials — a great improvement, but 
 which was not extended to criminal proceedings, beyond the narrow limits to which we 
 
1 77—3 JUDGMENT. 
 
 until the prosecutor should have an opportunity of preferring and try- 
 ing a fresh indictment, to prevent the parish from pleading the former 
 acquittal in bar ; and even this they have done in very few cases. 
 
 A court of oyer and terminer or general jail delivery, however, or 
 the court of quarter sessions, have no power to grant a new trial ; at 
 least such is generally understood to be the case. And where, upon 
 an indictment for the non-repair of a bridge being tried on the crown 
 side at the assizes, and the defendants convicted, they moved for 
 a certiorari to remove the record into the court of King's Bench, in 
 order that they might move for a new trial, the court refused it, Lord 
 Ellenborough, C. J., saying — "I would not have the notion for a mo- 
 ment entertained, that we have the power of entering into the merits 
 of verdicts, and granting new trials, in proceedings before inferior jiiris- 
 dictions.(a) 
 
 But where two persons were indicted at sessions for stealing oats, 
 
 and convicted $ and it appearing afterwards that, upon the jury 
 
 [*178] *retiring, one of the jurors separated himself from the rest, 
 
 (a) R. v. Inhabitants of Oxfordshire, 12 East, 411. 
 
 have already alluded. It is notorious, that at the present day, the hearing of motions for 
 new trials in civil causes is one of tha most important and frequent occupations of the com- 
 mon law courts; and it cannot be doubted that without the means of correcting errors and 
 mistakes thus afforded, the trial by jury would be regarded as unsatisfactory and unsafe. 
 
 " A new trial in civil proceedings, is now allowed on the plain and simple ground that 
 the practice is essential to justice, for the purpose of correcting errors and miscarriages in its 
 administration, which cannot be excluded, but which require remedy. These, however, are 
 not peculiar to civil proceedings. Some of them are even more lilcely to occur in criminal 
 than in civil proceedings. Questions of civil right are for the most part dependant on facts, 
 the effect rather than the existence of which is disputed. Criminal questions, on the con- 
 trary, frequently depend on transactions of a hidden and secret nature, the truth of which 
 is oftentimes difficult to unravel; and, in consequence, resort must often be had to a chain 
 of presumptive or circumstantial evidence. Looking therefore to the nature of the inquiry, 
 it is quite as likely that error or mistake should occur in the investigation on a criminal 
 charge, as on that of a mere civil claim. As regards the consequences of error in the one 
 case and the other, it cannot be denied that a failure of justice in a criminal case, where it 
 may concern not only property, liberty, but even life itself, is of much more serious import- 
 ance than in civil cases, where a mere question of property is concerned. These positions 
 and their consequences are too obvious to be dwelt upon ; yet admitting them to be true, 
 the conclusions must necessarily be, that the precautions necessary to exclude error in the 
 one case are a fortiori, necessary in the other. If, with a view to exclude the possibility of 
 injustice, a man is to be allowed the benefit of a new trial, where property to the amount of 
 £20 is at stake, it is hard to deny him protection to the same extent, where his life is in 
 jeopardy. If the question whether a pauper be legally settled in parish A., or parish B., is 
 not to be determined without power of appeal to the court of Queen's Bench, it is harsh to 
 condemn him to be transported for life te a penal settlement, without power of appeal. The 
 law in this respect is at variance with itself, and several evil consequences naturally result. 
 
 " Great injustice is often done to an innocent party, who, but for the technical rule, would 
 entitle himself to a new trial; for it cannot be doubted that cases not unfrequently occur, 
 when the convict is either altogether innocent, or not guilty of the aggravated offence 
 charged. 
 
NEW TRIAL. 178 
 
 and conversed with a stranger on the subject of the trial, the ses- 
 sions quashed the verdict, and awarded a venire de novo to the next 
 sessions ; and at the next sessions the prisoners were again tried and 
 again convicted : they then brought a writ of error, and objected, first, 
 that the sessions have no authority to grant a new trial ; and secondly, 
 that there had been no new arraignment and plea, before the second 
 trial : as to the last point, the court held that the parties having once 
 pleaded and put themselves upon the country, it was unnecessary for 
 them to do so a second time ; and as to the first point, the court said 
 that this could not be deemed a new trial ; the first trial was either 
 good or bad ; if good, the second trial was coram nonjudice, and might 
 be deemed a nullity ; if bad, it must be deemed a mistrial and a nullity, 
 and therefore as the prisoners had put themselves upon the country, 
 they might as well be tried at the next sessions ; in either view of the 
 case the judgment was right.(a)[l] 
 
 (a) R v. Fowler & Sexton, 4 B. & Aid. 213. 
 
 NEW TRIAL IN CRIMINAL CASES. 
 
 [1] The subject of new trial in criminal cases is of paramount importance to tine ends 
 of justice, as well as to the accused personally. If the defendant have been improperly 
 convicted, he should neither suffer the punishment, nor the disgrace which attaches to his 
 conviction. The law should supply the means of correcting the error ; and if it fail to do 
 so, it is remiss in its highest duty — that of full protection to the rights of the citizen. 
 
 I propose to treat of new trial under the following heads :— 
 
 1. Definition of New Teial. 
 
 2. Power of the United States Courts and Courts of the several States in 
 
 granting. 
 ' 3. on account of the improper admission or rejection of evidence. 
 
 4. On account of Misdirection of the Judge. 
 
 5. That the Verdict is contrary to Law. 
 
 6. That the Verdict is contrary to Evidence. 
 
 1. On account of Irregularity in Impannelling the Jury. 
 
 8. On the ground of Improper Jury. 
 
 9. By reason of Misconduct of Jury. 
 
 10. On the ground of newly discovered Evidence. 
 
 11. Of the Motion for New trial. 
 
 1. Definition of New Trial. 
 
 By a new trial is meant, a re-examination by jury, according to the forms of the com- 
 mon law, of the facts and legal rights of the parties upon disputed facts, which it is in the 
 discretion of the courts to grant or refuse, but which is claimable as a right when evidence 
 has been improperly received, or rejected, or incorrect directions in law, have been given. 4 
 Chitty's Gen. Pr. 31. 
 
 Causes of suspending the judgment by granting a new trial, are at present wholly extrin- 
 sic, arising from matter foreign to, or dehors the record. Of this sort, are want of notice of 
 trial ; or any flagrant misbehavior of the party prevailing, towards the jury which may have 
 influenced their verdict ; or any gross misbehavior of the jury themselves ; also, if it appears 
 by the judge's report, certified by the court, that the jury have brought in a verdict, without 
 
178 1 NEW " TRIAL IN CRIMINAL CASES. 
 
 or contrary to evidence; or if they have given exorbitant damages ; or if the judge himself 
 has misdirected the jury, so that they found an unjustifiable verdict : for these, and other 
 reasons of the like kind, it is the practice of the court to award a new ox second trial. But if 
 two juries agree in the same, or a similiar verdict, a third trial is seldom awarded ; for the 
 law will not readily presume that the verdict of any one subsequent jury can countervail the 
 oaths of the two preceding, ones. 3 Blk. Com. 387. 
 
 2. POWER OF THE UNITED STATES COURTS, AND COURTS OF THE SEVERAL STATES, IN 
 
 GRANTINS. 
 
 In the United States v. Gibert, et al. (2 Sumner's Rep. 19,) it was held that the prohibition 
 in the constitution of the United States, " nor shall any person be subject, for the same 
 offence, to be twice put in jeopardy of life or limb " means, that no person shall be tried a 
 second time for the same offence, after a trial by a competent and regular jury, upon a good 
 indictment, whether there be a verdict of ^acquittal or conviction. Therefore the circuit court 
 of the United States, cannot grant a new trial in a capital case, after a verdict regularly ren- 
 dered upon a sufficient indictment. Per Story, J. Davis, J. dissenting, held that the privi- 
 lege intended to be secured by the prohibition, might be waived by the prisoner. In United 
 States v. Fries, (3 Dallas 5 1 5,) on a trial for treason the circuit court of the United States for 
 the district of Pennsylvania, on a motion for a new trial, after conviction, on the ground that 
 a mistrial had been produced by the fact of a juror having expressed an absolute and deci- 
 sive opinion on the case before he was sworn, the court were at first equally divided; but 
 ultimately a new trial was ordered. In United States v. Keen, (1 M'Lean, 429,) it was held 
 that the courts of the United States have power to grant new trials in criminal cases, as 
 ■well those that are capital as others, See also U. S. v. Conner, 3 M'Lean, Rep. 573. 
 
 New Tore: — In New York, under the provisions of the revised statutes allowing the 
 defendant, on the trial of any indictment, to take exceptions to any decision of the court, in 
 order to bring a writ of error or certiorari.to the supreme court, (2 R. S. 736, §§ 21 to 27,) there 
 can be no doubt that a new trial may be granted to the defendant, in all cases where he takes 
 exceptions on the trial and brings a writ of error. But there is no provision authorizing the 
 public prosecutor to file a bill of exceptions, or to bring a writ of error or certiorari on the 
 part of the people, in case the defendant is acquitted. Either party, however, may remove 
 the indictment into the supreme court, before trial, by certiorari; (2 R. S. 732, § 83,) and 
 where an indictment, after having been so removed, was tried at the circuit, and the defend- 
 ant acquitted, the supreme court decided that for offences greater than a, misdemeanor, a 
 new trial cannot be granted, on the merits, whether thea ccused be acquitted or convicted. 
 8 Wend. 549. In misdemeanors, it seems a new trial may be granted where the defendant 
 has been improperly convicted, but not where he has been acquitted. Id. ib ; 5 Barn. & Adol. 
 52 ; 4 McCord, 255 ; 1 Chit. Cr. L. 656; See 4 Wend. 229. 
 
 Inferior courts, as courts of sessions, have no power to grant new trials upon the merits. 
 1 Chit. Cr. L. 653 ; 2 Caines' Cas. in Err. 319 ; S. C. 1 John. Cas. 179 ; 15 Wend. 581. But 
 they may for irregularity. 13 East, 416 ; 1 Chit. Cr. L. 653 ; 12 Wend; 272. 
 
 It has been decided that the oyer and terminer is not a superior court of general jurisdic- 
 tion ; and that it has no power to grant a new trial, on the merits, after a defendant has 
 been convicted of a felony. 2 Barb. S. C. Rep. 282. 
 
 At common law a new trial could not be granted on the merits, by any court, in a case of 
 felony, nor by an inferior court of limited jurisdiction iu any criminal case. 1 Ohitty's Cr. 
 Law, 532. In New York, the power to do so is expressly and for the first time, conferred 
 upon the supreme court, on a bill of exceptions to the general sessions, or oyer and ter- 
 miner by the revised statutes of 1830. 2 N. Y. Rev. Stat. 736, sees. 21, 23, 24, 25, 26, 27 ; 
 Id. 741, sec. 24. Then, it is confined to cases where the inferior tribunal has committed 
 some error in point of law. This limitation of the power, and the omission to grant it in any 
 other case, or to any other court, are significant to show, the intention of the legislature to 
 adhere, in all other respects, to the common law rule. Per Strong, J. in People v. Judges, of 
 Dutchess Oyer & Terminer, ,2 Barb. Sup. Ct. Rep. 282. 
 
 Massachusetts. — In Massachusetts, the supreme court and court of common pleas have 
 
NEW TRIAL IN CRIMINAL CASES. 178—2 
 
 power to grant new trials, at the term in which the trial of any indictment is had, or within 
 one year thereafter. Rev. Sts. of Mass. ch. 138, sec. 10. 
 
 In Com. v. Green, IV Mass. Rep. 515, the supreme court say: " That a prisoner who has 
 been tried for a felony and acquitted, should not be subjected to a second trial for the same 
 offence, seems consistent with the humane principles of the common law in relation to those 
 whose lives have been once put in jeopardy. But the same humane principles would appear 
 to require that after a conviction a prisoner should be indulged with another opportunity to 
 save his life, if any thing had occurred upon the trial which rendered doubtful the justice or 
 legality of his conviction. Nemo lis debet vexari, pro una et eadem causa, is a maxim of justice, 
 as well as of humanity ; and was established for the protection of the subject against the op- 
 pressions of government. But it does not seem a legitimate consequence of this maxim, that 
 one, who has been illegally convicted, should be prevented from having a second inquiry into 
 his offence, that he may be acquitted if the law and the evidence will justify an acquittal. 
 "We think there is a power in this court, to grant a new trial, on the motion of one convicted 
 of a capital offence, sufficient cause being shown therefor ; notwithstanding the English 
 courts are supposed not to exercise such authority.'" In this case; the merits of the applica- 
 tion were limited to the fact of the alleged erroneous admission, by the court, of a witness 
 convicted of an infamous crime in another state ; and the motion for a new trial was refused 
 on the following grounds : 1st. That objections to the competency of a witness, founded on 
 a conviction of crime, must be made at the trial, and when the witness is offered to be sworn ; 
 2d. The conviction of an infamous crime in any other state does not render the subject of 
 such conviction an incompetent witness in the courts of Massachusetts. 
 
 Pennsylvania. — "In Pennsylvania," says Mr. Wharton, (Cr. Law, p. 873,) "it has been 
 the constant and unquestioned practice in the courts to exercise the right of granting new 
 trials in criminal cases, after convictions of every grade. Thus, at a very early period, the 
 supreme court granted a rule to show cause why a new trial should not be granted after a 
 conviction of murder in the first degree, because the verdict was against law and evidence; 
 and though the rule was ultimately refused, no doubt appears to have been suggested of the 
 perfect authority of the court to determine it. Com. v. OHara, V Smith's Laws, 694. Some 
 time subsequently, a few months after the extreme construction already noticed was given 
 to the term jeopardy by Gibson, C. J., (Com. v. Che, 3 Rawle, 500,) the same learned judge 
 entertained a motion for a new trial after a conviction of burglary, the full power of the 
 court to dispose of the application being no where questioned. Com. v. Brown, 3 Rawle, 
 20V. The same practice has been followed in several cases of capital conviction in thecourt 
 of oyer and terminer, &c, of Philadelphia county; (Com. v. Murray, 2 Ashmead, 41 ; Com. v. 
 Williams, ibid. 69 ; Com. v. Green, 1 Ashmead, 289 ;) and in a very late case, after a convic- 
 tion of murder in the first degree, a new trial was refused on the merits by the supreme court, 
 without any suggestion of its incapacity to adjudicate the question." Com. v. Flannagan, V 
 "Watts & Serg. 415. 
 
 New Jersey. — In New Jersey, it seems that courts of inferior jurisdiction, may grant a 
 new trial on the merits. In The State v. Parker, (1 Halsteds 1 Rep. 148,) where the defendant 
 had been indicted for having a counterfeit note in his possession and convicted before the 
 quarter sessions of the county of Monmouth ; the defendant's counsel moved for a new trial 
 upon the ground, that the prosecutor for the state did not prove that the defendant knew 
 the note to be counterfeit ; and the court of quarter sessions granted a rule for a new trial, 
 upon that ground. The supreme court, upon motion of the attorney-general for a rule to 
 show cause why a mandamus should not issue to the quarter sessions, commanding them to 
 render judgment on the verdict of the jury, and forbidding them to proceed on the rule for a 
 new trial, denied the motion, remarking that it had been so long the practice of the^courts of 
 common pleas and quarter sessions to grant new trials that it deemed it inexpedient at this 
 time, to deny their right so to do, even if it might have been questionable at first. 
 
 Virginia. — In.Virginia, the cases on the subject of new trials have settled the following 
 principles : 
 
 That new trials are grantable at the instance of the accused, in all criminal cases ; and that 
 
178 3 ^EW TRIAL IN CRIMINAL CASES. 
 
 motions for new trials are governed by the same rules m criminal as in civil cases. That a 
 new trial will be granted : 
 
 1. Where the verdict is against law. This occurs when the issue involves both feet and 
 law, and the verdict is against the law of the ease ors tire facts proved. 
 
 2. Where the verdict is contrary to the evidence. This occurs when the issue- involves 
 matter of fact only; and the facta proved require a different verdict from that found by the 
 jury. 
 
 3. Where the verdict is without evidence to support it. This occurs When there has been 
 no proof whatever of a material fact, or not sufficient evidence of the fact or facts in issue. 
 
 Where some evidence has been given which tends to prove the fact in issue; or the evi- 
 dence consists of circumstances and presumptions, a new trial will not be granted merely 
 because the court, if upon the jury, would have given a different verdict. To warrant a new 
 trial in such cases, the evidence must be plainly insufficient to warrant the finding of the jury. 
 And this restriction applies to an appellate court. 
 
 In all these cases, the judgment granting or refusing a new trial, may be the subject of a 
 writ of error or supersedeas and is reversable. 
 
 4. Where the evidence is contradictory, and the verdict is against the weight of evidence, 
 a new trial may be granted by the court which presides at the trial; but its decision is not 
 the subject of a writ of error, or supersedeas, or examinable by an appellate court. Nor can 
 an inferior court be required to state in a bill of exceptions, either the evidence or the facts 
 proved by the witnesses respectively. It is enough to state that the. evidence was contra- 
 dictory. 
 
 See Grayson's case, (1 Graft. "Va. Rep: 1 1 2,) where the principles which govern new trials 
 in "Virginia, are stated by Judge Scott, with great clearness. 
 
 New Hampshire. — In Stater v. Prescott, (1 N. H. Rep. 281,) the supreme court "declared 
 that it had no hesitation in holding the right of the court to grant the prisoner a new trial 
 in a capital case, and Com. v. Green, (17 Mass. Rep. 515y) was cited with approbation. 
 
 Illinois. — In WicJcersham v. The People, (1 Scam. Rep. 128,) the right of the supreme 
 court to set aside a verdict, and grant a new trial, was recognized, but the court remarked 
 that it would interfere with reluctance where the proceedings had been regular. It seems 
 that in criminal cases, motions for new trials rest entirely in the discretion of the circuit 
 courts where they are made, and the propriety of their decisions in refusing them, cannot be 
 reviewed in the appellate court. Pate v. The People, 3 Gilman's Rep. 644; Boaster v. The 
 People, 3 Gilman's Rep. 368 ; Solliday v. The People, 4 Gilman's Rep. 111. 
 
 Indiana. — In Indiana, a new trial may be granted to a defendant in any criminal case. 
 Weinzorpflm v. The State, 1 Blackf. Rep. 186. 
 
 Georgia. — In The State v. Henley, (R. M. Charlton's Rep. 505,) the supreme court of 
 Georgia seemed to doubt whether a new trial on the merits conld be granted in any case be- 
 yond a misdemeanor, but it held that it certainly would not be granted when the presiding 
 judge is satisfied of the correctness of the verdiet. 
 
 North Carolina. — In State v. Jeffreys, (3 Murphey, 480,) on an indictment for a felony, 
 it was intimated that when a question of evidence was fairly submitted to a jury, and they 
 determined it on the merits, their finding would not be disturbed. It seems, however, that 
 instances of new trials in felonies in North Carolina, are . frequent, on account of mistake of 
 law, or irregularity in trial. . Wharton's Or. L. citing State v. Miller, 1 Dev. & Bat. 500; State 
 v. Barton, 2 Dev. & Bat. 196; State v. Sparrow, 3 Murphey, 481 ; State v. Lipsey, 3 Dev. 485. 
 
 Iowa. — In Iowa, a motion for a new trial, based upon facts, is a motion addressed to the 
 sound discretion of the court. While all the facts upon which a conviction has been obtain- 
 ed are fresh in the recollection of the court, if the court, in the exercise of its sound discre- 
 tion, think that the verdict of the jury is contrary to law, or is not the legitimate result of 
 testimony, and that manifest injustice will be done by inflicting the punishment to which 
 the verdiet is but the precursor, the court should always interpose and grant a new trial. 
 Cook v. U. S., 1 Green's Iowa Rep. 56. 
 
 Alabama. — In State v. Sleek, (6 Ala. Rep. 616,) the court said, "The English courts, in 
 modern times, do not grant new trials in cases of felon v, but accomplish the same object by 
 
NEW TRIAL IN CRIMINAL CASES. 178 — 4 
 
 a recommendation to the crown for a pardon, which is always granted. It does not, how- 
 ever, follow that it is against the principles of the ancient common law, that the court should 
 have power to grant a new trial where a doubt exists as to the correctness of the verdict. 
 It would seem to be more consistent with the spirit of humanity which pervades it, that a 
 new trial should be granted by the court, than that the prisoner should depend on the mercy 
 of the executive. It cannot be questioned that the clause in our bill of rights, upon which 
 we have commented, was intended for the protection of the citizen, and it would be a mock- 
 ery to put such a construction on it as will make it operate to his prejudice. We are, for 
 these reasons, of the opinion that the court may, with the consent of the prisoner, grant a, 
 new trial after a conviction for a felony." 
 
 3. New Trial on Account of the Improper Admission or Rejection of Evidence. 
 
 The rule in civil cases seems to be, that though there is exceptionable testimony, yet, if 
 there is sufficient legal evidence to support the verdict, and justice has been done, the ver- 
 dict will not be set aside; and so also where legal evidence has been excluded, but where, 
 had it been admitted, the result would have been the same. Stiles v. Tilford, 10 Wend. 338,; 
 Prince v. Shepherd, 9 Pick. 116 ; Smith v. Harmanson, 1 Wash. Rep. 6 ; Landon y. Humphrey, 
 9 Conn. Rep. 209 ; Fitch v. Chapman, 10 Conn. 8. 
 
 But in criminal cases, courts-seldom presume that the particular evidence which had been 
 wrongfully admitted or improperly rejected, could have no influence on the deliberations of 
 the jury. It may threfore be stated as a general rule, that under such circumstances the de- 
 fendant will be allowed a new trial. 
 
 In Tennessee, in Peck v. The State, (2 Humph. Rep. 18,) Greene, J., says, "the rule that 
 although incompetent evidence was received, yet, if the court see that there was enough in- 
 dependent of such evidence, to convict the prisoner, it will not disturb the verdict, does not 
 prevail in this state. It has been uniformly held here, that if incompetent evidence has been 
 received, that might have influenced the jury, a new trial will be awarded; for it cannot be 
 seen how far such evidence did influence them, and we cannot say that the prisoner has been 
 convicted by a jury of his peers, or evidence competent for that purpose." See also, State v. 
 Allen, 1 Hawk's Rep. 6. But in South Carolina, in The State v. Ford, (3 Strobh. 511,) it was 
 held, that .if a prisoner's guilt be clearly_made out, by proper evidence, in such a way as to 
 leave no doubt in the mind of a reasonable man, his conviction ought not to be set aside, be- 
 cause some other evidence was received, which ought not to have been. 
 
 Where a witness called for the defence was so much intoxicated at the time, .as to be in- 
 capable of comprehending the obligation of an oath, and the court refused to permit him to 
 testify, but told the prisoner that, he might recall him afterwards, but he was not so recalled, 
 it was held that this was not ground for granting a new trial, the granting or refusing a new 
 trial, in such case, being in the discretion of the judge. State v. Underwood, 6 Ired. 96. 
 
 4. New Trial on account of Misdirection of Judge. 
 
 It seems that any misdirection of the court trying the case, in point of law, on matters 
 material to the issue, is a good ground for a new trial. Yomg v. Spenser, 10 Barn & C. 
 145; Holiday v. Atkinson, 5 Barn. & C. 501 ; Boyden v. Moore, 5 Mass. 365; Wardell y. 
 Hughes, 3 Wendell, 418; Baylies v. Davis, 1 Pick. 206; Lane v. Grombie, 12 Pick. Ill ■ 
 Doe v. Paine, 4 Hawks, 64 ; West v. Anderson, 9 Conn. 107 ; AfFaden v. Parker,, .3 Yeates, 
 496 ; People v. Gogdell, 1 Hill's N. Y. R. 95 ; People v. Thomas, 3 Hill's N. Y. R, 169 ; 
 People r. Townsend, id: 419 ; Com. v. Parr, 5 Watts & Serg. 345 ; People v. Bodine, 1 Denio, 
 282 ; Doe d. Bath v. Clarke, 3 Hodg. 49 ; Doe d. Read v. Harris,, 1 Will. Wol. & D. 106 ; 
 Haine v. Davey, 4 Ad. & El. 892 ; 6 Nev. & Man. 356 ; 2 Har. & Wol. 30 ; Lyeas v. Tomkies, 
 1 Mee. & W. 603 ; Anon. 6 Mod. 242; How v. Stride, 2 Wils. 269 ; 10 Johns. R. 447 ; 5 
 •Day, 419; 5 Mass. 481; Wilson v. Rastall, 4 T. R. 153; 4 Connec. 356; 3 Cranch. 298 ; 
 Calaraftv. Gills, 5 T. R. 19; Crofts v. Waterhouse, 3 Bingham, 319. 
 
 But a verdict, in accordance with the weight of evidence, and with justice ought not to 
 be set aside on account of an erroneous instruction given by the court to the jury. Harris 
 
178 5 NEW TRIAL IN CRIMINAL OASES. 
 
 v. Doe, 4 Blackf. 369 j Howard v. Miner, 7 Shepl. 325. It is sufficient objection to a charge 
 to the jury that it might convey to the mind of any man of ordinary capacity an incorrect 
 view of the law applicable to the cause. Smnner v. The State, 5 Blackf. 579. 
 
 The due degree of weight to be given by a judge directing the jury, to particular evidence, 
 which has been properly admitted, must be left to his own discretion ; and his discretion, in 
 that respect, will not be revised by the court above, (Attorney- General v. Good, M'Clel. & T. 
 286 ; 4 Ch. Gen. Practice, 42 ; People v. Genung, 1 1 Wendell, 18,) though if the court instruct 
 a jury that they may indulge a presumption not warranted by the evidence, a new trial will 
 be awarded. Harris v. Wilson, 1 Wendell, 511 ; Haine v. Davey, 4 Ad. & El. 899 ; 4 
 Wendell, 639 ; 10 Wendell, 461 ; Levingsworth v. Fox, 1 Bay, 520 ; Handly v. Harrison, 3 
 Bibb, 481. Thus, where the judge charged, that the non-production, by the defendant, of 
 evidence of good character should weigh against the defence, it was held error ; {People v. 
 Bodine, 1 Deuio, 283 ; but see People v. White, 22 Wendell, 167,) and where, on a trial for 
 murder, there was evidence that a murder had been committed, and that the house in which 
 the dead body was, had been subsequently set on fire under such circumstances as to raise 
 a suspicion that the same was done by the perpetrator of the murder, to conceal that offence, 
 and the evidence -left it doubtful whether the prisoner was in the vicinity of the house when 
 the fire was set, and the court charged the jury, that if the prisoner might have been at the 
 scene of the fire " the onus was cast upon her to get rid of the suspicion which thus attached 
 to her," and that she was bound to show where she was at the time of the fire,the pre- 
 sumption was held erroneous, and ground for a new trial. People v. Bodine, 1 Denio, 282. 
 Wharton's Cr. Law, p. 882. 
 
 In the case of The People v. Gray, (5 Wend. Rep. 289,) a new trial was refused where the 
 complaint was, that the judge, although requested, declined to charge the jury, there being 
 no dispute as to the law of the case ; the trial closing so late on Saturday night, that, had 
 the jury been charged, they must either have been dismissed, or kept over during Sunday ; 
 and the verdict being fully supported by the evidence. 
 
 It has been held that a judge has a right to express his opinion to the jury, on the weight 
 of evidence and to comment thereon as much as he deems necessary for the course of justice. 
 And it is said that an erroneous opinion on matter of fact, expressed by the judge in his 
 charge, is no ground for new trial, unless the jury are thereby led to believe that such fact 
 was withdrawn from their consideration. Com. v. Child, 10 Pick. 252 ; Swift v. Stevens, 8 
 Com. Rep. 431; Ware v. Ware, 8 Greenl. 42; Hinhck v. Palmer, 1 Rep. Con. Ct. 216; 
 Riddle v. Murphy, 7 Serg. & Rawle, 237. In South Carolina, the act of assembly relative to 
 the duty of a judge in charging, forbids him "to give 'an opinion whether a fact is fully, or 
 sufficiently proved, such matter being the true office and province of a jury;" and it directs 
 him, "to state in a full and correct manner, the facts given in evidence, and to declare and 
 explain the law arising thereon." Peel v. Reel, 2 Hawk's Rep. 63. 
 
 Courts are under no obligation to listen to abstract propositions from counsel, and are not 
 bound to explain thqm upon the trial of causes. It is enough that they should respond to 
 objections made by either party to the admission of evidence upon the trial, and give in 
 charge to the jury the law, which under a given state of facts governs the case. Per Jewett, 
 J., 1 Denio, 524. But if incorrect abstract propositions are propounded by the court, and 
 the jury are misled by them the verdict will be avoided. In Etling The Bank of the U. S., 
 (11 Wheat. Rep. 69,) Chief Justice Marshall, said : " That a judge cannot be required to 
 declare the law on hypothetical questions which do not belong te the cause on trial, has been 
 frequently asserted in this court, and is, we believe, incontrovertible. The court, may, at 
 any time, refuse to give an opinion on such a point; and if the party propounding the ques- 
 tion is dissatisfied with it, he may except to the refusal, which exception will avail him, if 
 he shows that the question was warranted by the testimony, and that the opinion he asked, 
 ought to have been given. But if the judge proceeds to state the law, and states it erro- 
 neously, his opinion ought to be revised; and if it can have had any influence on the jury, 
 their verdict ought to bo set aside." See Hamilton v. Russell, 1 Cranch's Rep. 309, 318. 
 
 The omission, by the judge in summing up, specifically to leave to the jury a point made 
 in the course of the trial (his attention not being expressly called to it,) is no ground for a 
 
NEW TRIAL IN CRIMINAL CASES. 178—6 
 
 motion for a new trial, if the whole of the case was substantially left to them. Den. v. 
 Sinnickson, 4 Halst Rep. 149. But although the omission of the court, to charge the jury, 
 on important questions of law, involved in the case is not, in itself] a reason for granting a 
 new trial ; yet the court will exercise a discretion ; and if they think the justice of the case 
 will be promoted, they will grant it. Galbreath v. Gracy, 1 Wash. C. C. Rep. 198. And 
 where from the absence of proper instructions the jury fall into error a new trial will be 
 granted. Dunlap v. Patterson, 5 Oowen, 243 ; Scott v. Lunt, 7 Peters, 596 ; Page v. Pattee, 
 6 Mass. 459. 
 
 In England, in an action for maliciously and without reasonable or probable cause, charg- 
 ing the plaintiff with felony before a magistrate, it appeared that the plaintiff had lived in 
 the service of the defendant, and, on being discharged took away with her a trunk and bag, 
 the property of the defendant; that on the following day, the defendant wrote to desire the 
 plaintiff to return those articles, stating, that unless she did so, he would, on the following 
 Monday, cause her to be apprehended ; that the letter being, in consequence of the plain- 
 tiff's absence, unanswered, the defendant obtained a warrant for the apprehension of the 
 plaintiff, and carried her before a magistrate, who dismissed her, the defendant declining to 
 press the charge ; the judge before whom the cause was tried, left it to the jury to say, 
 whether or not, the defendant had reasonable or probable cause for apprehendingthe plaintff, 
 and whether he was actuated by malice or not, and it was decided that this direction was 
 proper, and that the judge was not bound to take upon himself to decide as to whether or 
 not there was reasonable or probable cause, it being a mixed question of law and fact. 
 Macdonald v. Booke, 2 Scott, 359. 
 
 1 But in Munns v. Dupont et al. (3 Wash. C. C. Rep. 31,) Judge Washington laid it down as 
 settled that, while it must be referred to the jury to decide whether the circumstances which 
 amount to probable cause are proyed by credible testimony or not ; on the other hand, 
 what circumstances are sufficient to prove a probable cause, must be judged of, and decided 
 by the court. See also Nelson v. Jacques, 1 Greenleaf 's Rep. 139. 
 
 In The People v. White, (22 Wend. 167,) the supreme court of New York, held that if a 
 judge in his charge to a jury in a crimiaal case, calls their attention to the want of proof of 
 a good character of the criminal, alluding to the influence of good character in doubtful cases, 
 it is no ground for granting a new trial. But the court of errors in the same ease, (on ap- 
 peal) thought otherwise, and a new trial was granted. ■ 24 Wend. 520; see The People v. 
 Vane, 12 Wend. 78. 
 
 In an indictment for a larceny, of several articles, if the court instruct the jury that if they 
 find the accused guilty as to one of the articles, they should find a general verdict of guilty, 
 it is erroneous, and the verdict will be set aside and a new trial granted, although the pun- 
 ishment would be the same in both cases. The State v. Somerville, 21 Maine Rep. 20. A 
 general verdict of guilty applies to all the material allegations in the indictment, and finds 
 the prisoner guilty of stealing all the goods named and alleged_to be stolen. And although 
 the punishment may be the same, whether the prisoner be found guilty of stealing a part 
 only, or the whole of the goods alleged to have been stolen, yet his rights in other respects, 
 as well as the rights of others, may be affected by the finding of a general verdict upon proof, 
 which would not authorize it. 
 
 Where the facts in a ease of capital felony, are not absolutely conclusive of the defendant's 
 guilt, -and it is apparent, from the charge of the court, that it may have misled the jury from 
 its want of accuracy and explieitness, a new trial will be granted, though the charge may 
 not be unequivocally erroneous. Troxdale v. The State, 9 Humph. Rep. 411. 
 
 A new trial will not be granted on account of an erroneous charge by the court, if it did 
 not materially influence the jury in coming to their decision. Smith v. Kerr, 1 Barb. 155 ; 
 Branch v. Doane, 17 Conn. 402 ; Greenup v. Stoker, 3 Gilm. 202 ; Crawley v. Littlefield, 3 Strobh. 
 154; McGreadyv. S. G. R. B Co., 2 Strobh. 356; Pritchard v. Myers, 11 Smedes & Marsh. 
 169 ; Wilkinson v. Griswold, 12 Smedes & Marsh. Rep. 669. 
 
 On a motion for a new trial, upon a ease stated, for the misdirection of the judge in his 
 charge to the jury, it is not necessary that it should- have been excepted to ; otherwise,' on a 
 bill of exceptions to the rule. Vallance v. King, 3 Barb. Sup. Ct. Rep. 548. 
 
178 7 NEW TRIAL IN CRIMINAL CASES. 
 
 5. New Trial on the Ground that the Verdict is Contrary to Law. 
 
 The jury are to receive as binding, the law laid down by the court, and after a conviction, 
 if the verdict is against the law, it will be set aside. 
 
 The question how far the jury are judges of the law in criminal cases, though formerly a 
 fruitful subject of discussion, seems now to be well settled. 
 
 The first case I have .met with, in which the question arose between the jurisdiction of 
 the court and jury, was upon the trial of Lilburne for high treason, in 1549. 2 St. Tr. 69, 
 81, 92. He insisted, in coarse but intelligible language, that the jury were judges of law 
 and fact, but the court, in language equally rude, denied it. He insisted upon the privilege 
 of reading law to the jury, but the court refused it. The jury, however, acquitted him, and 
 they declared that they took themselves to be judges of the law as well as of the fact, not- 
 withstanding the court had said otherwise. BushelVs case followed soon after, and it is, in 
 every view, important. Yaughan, 135 ; Sir T. Jones, 13. He was one of the jurors, on the 
 trial of an indictment for a misdemeanor, before the court of oyer and terminer in London, 
 and was fined and committed, because he and the other jurors acquitted the defendant against 
 full proof, and against the direction of the cowt in matter of law. He was brought into the court 
 of C. B. upon habeas corpus, and discharged ; and Lord Ch. J. Taugban delivered, upon that 
 occasion, in behalf of the court, a learned and profound argument in favor of the rights of 
 the jury. He admitted that where the law and fact were distinct, the provinces of the court 
 and jury were exclusive of each other, so that if it be demanded what is a fact, the judge 
 cannot answer it, and if what is the law, the jury cannot answer it. But that upon all gen- 
 eral issues, where the jury find a general verdict, they resolve both law and fact completely, 
 and not the fact by itself. 
 
 Upon the trial of Algernon Sidney, (3 St. Tr. 817,) the question did not distinctly arise, 
 but Lord Ch. J. Jeffries, in his charge to the jury, told them it was the duty of the court to 
 declare the law to the jury, and the jury were bound to receive their declaration of the law. They 
 did, in that case, unfortunately, receive the law from the court, and convicted the prisoner, 
 but his attainder was afterwards reversed by parliament ; and the law, as laid do wn on that 
 trial, was denied and reprobated, and the violence of the judge, and the severity of the jury, 
 held up to the reproach and detestation of posterity. - 3 Johns. Cas. 369, 370. 
 
 In every criminal case, upon the plea of not guilty, the jury may, and, indeed, they must, 
 unless they choose to find a special verdict, take upon themselves the decision of the law, 
 as well as the fact, and bring in a verdict as comprehensive as the issue ; because, in every 
 such case, they are charged with the deliverance of the defendant from the crime of which 
 lie is accused. The indictment not otily sets forth the particular fact committed, but it spe ; 
 cifies the nature of the crime. Treasons are laid to to be done traitorously, felonies feloni- 
 ously, and public libels to be published seditiously. The jury are called to try, in the case 
 of a traitor, not only whether be committed the act charged, but whether he did it traitor- 
 ously ; and in the case of a felon, not only whether he killed such a one, or took such a per- 
 son's property, but whether he killed with malice prepense, or took the property feloniously. 
 So in the case of a public libeller, the jury are to try, not only whether he published such a 
 writing, but whether he published it seditiously. In all these cases, from the nature of the 
 issue, the jury are to try not only the fact but the crime, and in doing so, they must judge 
 of the intent, in order to determine whether the charge be true, as set forth in the indict- 
 ment. Daggo on Cr. Law, b. 1, c. 11, s. 2. The law and fact are so involved, that the jury 
 are under an indispensable necessity to decide both, unless they separate them by a special 
 verdict. 
 
 This right in the jury to determine the law as well as the fact, has received the sanction 
 of some of the highest authorities in the law. 
 
 The inquest, says Littleton, (s. 368,) may give a verdict as general as the charge 1 , if they 
 will take upon themselves the knowledge of the law. The same principle is admitted by 
 Coke, and other ancient judges, (Co. Lit. 228, a. ; 4 Co. 53, b.; "Wrey, Ch. J. Hob. 227 ;) al- 
 though they allege it to be dangerous for the jury to do so, because, if they mistake the law, 
 they run the hazard of an attaint. As the jury, according to Sir Matthew Halo, assist the 
 judge in determining the matter of fact, so the judge assists the jury in determining points 
 
NEW TRIAL IN CRIMINAL CASES. 178—8 
 
 of law. And it is the conscience of the jury, he observes, that must pronounce the prisoner 
 guilty or not guilty. It is they, and not the judge, that take upon them his guilt or inno- 
 cence. Hist. Com. Law, c. 12, H. H. P. C, vol, 2, 313. 
 
 . Blackstone, in his Commentaries, (Vol. 4, p. 384,) When speaking of the verdict of the jury 
 in criminal cases, says, that the jury may find a special verdict, where they doubt the mat- 
 ter of law, and, therefore, choose to leave it to the determination of the court: though they 
 have an unquestionable right to determine upon all the circumstances, and find a general 
 verdict, if they will hazard a breach of their oaths. The statute of "Westm. 2, (13 Edw. 1,) 
 which dealared that the justices of assize should not compel the jurors to say precisely, whe- 
 ther it be a disseisin or not, so as they state the truth of the fact and pray the aid of the justices, 
 was in affirmance of the common law, (9 Co. 13, a. Plowd. 92;) and was intended for the 
 relief of the jurors, and that they should not be compelled to find, at their peril, things doubt- 
 ful to them in law. This indulgence to the jury, and which extended to all cases civil and 
 criminal, is the most decisive proof that on a general verdict, the jury were obliged to judge 
 of the whole matter in issue, and that the direction of the court upon the point of law, was 
 not conclusive upon their judgments, or binding on their consciences. The twelVe judges, in 
 their opinion, to which I have alluded, " disclaim the folly of endeavoring to prove that a 
 jury, who can find a general verdict, cannot take upon themselves to deal with matter of 
 law arising on a general issue, and to hazard a verdict made up of the fact and of the matter 
 of law, according to their conception of the law, against all direction by the judge.'' 
 
 To meet and resist directly this stream of authority, is impossible. But while the power 
 of the jury is admitted, it is denied that they can rightfully or lawfully exercise it, without 
 compromitting their consciences, and that they are bound implicitly, in all cases to receive the 
 law from the court. The law must, however, have intended, in granting this power to a 
 jury, to grant them a lawful and rightful power, or it would have provided a remedy against 
 the undue exercise of it. The true criterion of a legal power, is its capacity to produce a 
 definitive effect liable neither to censure nor review. And the verdict of not guilty, in a 
 criminal case, is, in every respect, absolutely final. The jury are not liable to punishment, 
 nor the verdict to control. No attaint lies, nor can a new trial be awarded. The exercise 
 of this power in the jury, has been sanctioned, and upheld in constant activity, from the ear- 
 liest ages. It was made a question by Bracton, (fol. 119, a. b.) who was to sit in judgment 
 upon and decide points of law, on appeals in capital cases. It could not be the king, 
 he says, for then he would be both prosecutor and judge ; nor his justices, for they re- 
 presented him. He thinks, therefore, the curia and pares were to be judges in all cases of 
 life and limb, or disherison of heir, where the crown was the prosecutor. And, indeed, it is 
 probable that in the earlier stages of the English juridical history, the jury, instead of decid- 
 ing causes under the direction of the judge, decided all causes, without the assistance of the 
 judge. Barrington on the Statutes, 18, 26, 311. 
 
 As a genera] proposition, it is not denied that it is the province of the judges to expound 
 the law, and of the jury to ascertain the facts. But when it is admitted that the judges may 
 advise the jury as to the law, it does not follow that the jury are bound in all things to con- 
 form to that advice, whether in their opinion it be right or wrong. On the contrary, it is in- 
 sisted that, though the jury should conform to the court's opinion of the law in civil cases, 
 yet that in criminal causes they have an absolute right to follow their own opinion in oppo- 
 sition to that of the court, whenever the consequence of so doing will be a verdict for the 
 accused. This right the jury may lawfully exercise, and the court cannot lawfully control 
 it. Tho court may pronounce an opinion upon the law. which, if it were followed, would be 
 decisive of the case against the accused. And yet the jury, if they differ from the court 
 upon the law, may find a verdict of acquittal in direct opposition to the opinion so pronoun- 
 ced, and their verdict will be forever binding. It is entirely beyond the power of the court 
 and can never be set aside. This much is incontrovertible ; and so far it is admitted that the 
 jury "may decide upon the law as well as fact" even by Hargrave, in the note wherein he 
 draws a distinction between the immediate and direct right of the court to decide the law 
 and the incidental right of the jury. 3 Tho. Co. Lit. 461, n. 1. This distinction is wholly un- 
 
178—9 NB ' W ' TEIAL IN 'CRIMINAL CASES. 
 
 important, as to the question now to be considered. It is enough that the right itself be es- 
 tablished. It matters not whether it be termed immediate and direct, or incidental. 
 
 It will not be going too far to say, that the right of the jury in a criminal cause, to determine 
 the whole matter involved in the general issue of guilty or not guilty, both law and fact, is 
 constantly practised upon, throughout our land. It is incorporated into the systems of govern- 
 ment which have been adopted in a large number of the states, and cannot, with propriety, 
 be departed from in those states, while their systems remain unchanged. True, the general 
 proposition is not laid down in positive terms, that in all criminal causes, the jury have a 
 right to determine both the law and the fact ; and this for the plain reason that the general 
 proposition was uncontroverted. But the proposition is applied particularly to that class of 
 cases which in England were once regarded as exceptions to the general rule, and by con- 
 sequence embraces others. The declaration of rights adopted in Maine provides that " in all 
 indictments for libels, the jury, after having received the direction of the court, shall have a 
 right to determine, at their discretion, the law and the fact." The constitutions of Penn- 
 sylvania, Kentucky, Tennessee, Ohio, Indiana, and Illinois, declare that "in all indictments 
 for libels, the jury shall have a right to determine the law and the facts, under the direction of 
 the court, as in other cases." A similar provision exists in the constitution of Delaware, with 
 this difference, that it omits the words " under the direction of the court." And in Connec- 
 ticut, Mississippi. Alabama, and Missouri, there is an omission of the words, " as in other 
 cases." The constitution of New York is yet more unqualified. In the article treating of 
 prosecution for libels, the provision in regard to the jury is simply that they " shall have the 
 right to determine the law and the fact." 
 
 These constitutional provisions speak a language which is not to be misunderstood. They 
 repudiate the idea that any peculiar doctrine is applicable to prosecutions for libel ; and they 
 acknowledge the rule that in these as in all other criminal causes, the jury are the judges of 
 the law and the fact. In the states wherein no such specific provisions have been ingrafted 
 in their constitutions, it is believed, notwithstanding, that the principle is regarded as a funda- 
 mental one. In every state, the trial by jury is secured ; and with that is adopted the com- 
 mon law right which the jury have to acquit the accused, and thus decide finally upon the 
 law and the fact. 
 
 In The People v. Bradford, (1 Wheeler's Cr. Cas. 221,) the court held that whether the act 
 of the defendants, was a trespass, fraud, or felony, was a question to be left to the jury ;-they 
 were, in a criminal case, judges of the law ; and if the jury were of opinion the conduct of the 
 defendants amounted to a fraud, it was sufficient to sustain the indictment. And in The People 
 v. Moore, (3 Wheeler's Cr. Cas. 9*7,) the court said to the jury : " In any direction of the court 
 as to principles of law, you have a right to differ with them, and it may be your duty, gentle- 
 men, in some cases, to differ with them. A decent respect to their direction, is only ex- 
 pected." 
 
 In the United States, as well as in England, it is now the prevailing sentiment that the 
 court are as much the judges of the law in criminal as in civil cases with the qualification 
 that a criminal acquittal cannot be reviewed. 
 
 The circuit court of the United States, third circuit, in their charge to the jury on the trial 
 of an indictment for robbing the mail, use the following language on the subject : 
 
 " In repeating to you what was said on a former occasion to another jury,^that you have 
 the power to decide on the law as well as the facta of this case, and are not bound to find 
 according to our opinion of the law, — we feel ourselves constrained to make some explana- 
 tions not then deemed necessary, but now called for from the course of the defence. 
 
 " You may find a general verdict of guilty or not guilty as you think proper, or may find 
 the facts specially and leave the guilt or innocence of the prisoner to the judgment of the 
 court. If your verdict acquits the prisoner, we cannot grant a new trial, however much we 
 may differ with you as to the law which governs the case ; and in this respect a jury are the 
 judges of law, if they choose to become so. Their judgment is final, not because they settle 
 the law, but because they either think it not applicable, or do not choose to apply it to the 
 case. 
 
 " But if a jury find a prisoner guilty against the opinion of the court on the law of the case, 
 
NEW TRIAL IN CRIMINAL CASES. 178 — 10 
 
 a new trial will be granted. No court will pronounce a judgment on a prisoner against what 
 they believe to be the law. On an acquittal there is no judgment-; the court do not act, and 
 cannot judge, there remaining nothing to act upon. 
 
 " This, then, you will understand to,be what is meant by your power to decide on the law ; 
 but you will still bear in mind, ihat it is a very old, sound, and valuable maxim in law, that 
 the court answers to questions of law and the jury to facts. Every day's experience evinces 
 the wisdom of this rule." United States v. Wilson et al. 1 Baldw. 108. 
 
 In the case of United States v. Battiste, (2 Sumner Rep. 243,) Story, J. in summing up to 
 the jury, said : Before I proceed to the merits of this case, I wish to say a few words upon 
 a point, suggested by the argument of the learned counsel for the prisoner, upon which I 
 have had a decided opinion during my whole professional life. It is, that in criminal cases, 
 and especially in capilal cases, the jury are the judges of the law, as well as of the fact. My 
 opinion is, that the jury are no more judges of the law in a capital or other criminal case, 
 upon the plea of not guilty, than they are in every civil ease, tried upon the general issue. 
 In each of these cases, their verdict, when general, is necessarily compounded of law and of 
 fact ; and includes both. In each they must necessarily determine the law, as well as the 
 fact. In each, they have the physical power to disregard the law, as laid down to them by 
 the court. But I deny, that, in any case, civil or criminal, they have the moral right to de- 
 cide the law according to their own notions, or pleasure. On the contrary, I hold it the most 
 sacred constitutional right of every party accused of a crime, that the jury should respond as 
 to the facts, and the court as to the law. It is the duty of the court to instruct the jury as 
 to the law ; and it is the duty of the jury to follow the law, as it is laid down by the court. 
 This is the right of every citizen : and it is his only protection. If the jury were at liberty 
 to settle the law for themselves, the effect would be, not only that the law itself would be 
 most uncertain, from the different views, which different juries might take of it; but in case 
 of error, there would be no remedy or redress by the injured party ; for the court would not 
 have any-right to review the law, as it had been settled by the jury. Indeed, it would be 
 almost impracticable to ascertain, what the law, as -settled by the jury, actually was. On 
 the contrary, if the court should err, in laying down the law to the jury, there is an adequate 
 remedy for the injured party, by a motion for a new trial, or a writ of error, as the nature 
 of the jurisdiction of the particular court may require. Every person accused as a criminal 
 has a right to be tried according to the law of the land, the fixed law of the land; and not 
 by the law as a jury may understand it, or choose, from wantonness, or ignorance, or ac- 
 cidental mistake, to interpret it. If I thought, that the jury were the proper judges of the 
 law in criminal cases, I should hold it my duty to abstain from the responsibility of stating 
 the law to them upon any such trial. But believing, as I do, that every citizen has a right 
 to be tried by the law, and according to the law ; that it is his privilege and truest shield 
 against oppression and wrong ; I feel it my duty to state my views fully and openly on the 
 present occasion. 
 
 The same doctrine is laid down in Montee v. The Commonwealth, 3 J. J. Marsh. 150; by 
 Durfee, C. J. in Dorr's Trial, 121, 122, 130; and by Scott and Holman, Js. iu Townsendv. The 
 State, 2 Blackf. 158. In the latter case, it is said that, if the jury find the law contrary to 
 the instructions of the court, they thereby violate their oath. See also 4 Bl. Com. 361. 4 
 Stephens' Com. 432. Poster, 256. Montgomery v. The State, 11 Ohio, 421. Pennsylvania v. 
 Bell, Addison, 160. Kelton v. Bevins, Cooke, 10T. In the case of Tlie King v. Dean of St. 
 Asaph, (3 T. R. 431, note,) Lord Mansfield says, the jury " do not know, and are not presumed 
 to know the law ; they are not sworn to decide the law ; they are not required to do it. Upon 
 the reason of the thing, and the eternal principles of justice, the jury ought not to assume 
 the jurisdiction of the law. They do not know, and are not presumed to know any thing of 
 the matter. It is the duty of the judge, in all cases upon genpral issues, to tell the jury how 
 to do right, though they have the power to do wrong, which is a matter between God and 
 their own conscience. To be free, is to live under a government by law. Miserable is the 
 condition of individuals, dangerous is the condition of the State, if there is no certain law, or 
 (which is the same thing) no certain administration of law, to protect individuals, or to guard 
 
 67 
 
^73 11 NEWTRIAL IN CRIMINAL OASES. 
 
 the State." See also 3 Johns. Cas. 405, per Lewis, C. J. "Worthington on- Power of Jcries, 
 120, 125, 113. Eunomus, Dial. 3, § 53. 2 Hume Crim. Law, (2d. ed.) 423. 
 
 In Hardy v. The State, (7 Missouri Rep. 607,) a jury, who were told by a subordinate court 
 that they were the judges of the law and of the evidence, found the defendant guilty, and 
 the court passed judgment upon him. The supreme court reversed the judgment, for this 
 misinformation given to the jury. 
 
 As the jury have only the power, without the right, to decide questions of law against the 
 instructions of the court, it seems to follow that counsel should not be permitted to argue to 
 the jury against the correctness of those instructions. And so it was held in Davenport v. 
 The Commonwealth, 1 Leigh, 588; in Commonwealth v. Garth, 3 Leigh, 161 ; and in Dorr's 
 trial, 11, 81, 82. 
 
 In the case of The People v. Pine, (2 Barb. Supm. Ct. Rep. 566,) which was a trial for mur- 
 der, Judge Bareulo in the course of his charge to the jury, said : " It is often said, and has 
 been said in the progress of this trial, that the jury in criminal cases, are judges of the law, 
 as well as of the facts. If by this is meant that the jury are to assume the prerogative of 
 the court as exercised in civil cases, adopt their own views of the law without regard to 
 those entertained by the court, I am bound to say to you, that such is not the law of the 
 land. This proposition is perfectly untenable, and has been distinctly repudiated on more 
 than one occasion by the judges of the supreme court of the United States. If, however, 
 by this expression is meant merely that whatever decision the jury make, whether of law 
 or fact, in favor of the prisoner, is final and cannot be reviewed — then the declaration is 
 true. This is all that can be properly understood by the phrase " the jury are judges of 
 the law as well as fact; " and the reason of this is, that the constitution does not permit a 
 new trial in case of acquittal. But if the decision of the jury should be against a prisoner, 
 contrary to the law as laid down by the court, a remedy can be applied. In this state the 
 jury is presumed to receive the law from the court. The prisoner has the benefit of excep- 
 tions to the opinion of the court; and if they are well founded, he can obtain a new trial. 
 The jury, it is true, have the power to disregard the law, and to disregard their oaths — and 
 to render a verdict contrary to both law and evidence ; and in this respect they are the judges 
 of the law ; and if in so doing they acquit a prisoner when he is guilty, the public is with- 
 out redress. But it can hardly be contended that the jury has the right to do all this. This 
 question has recently been discussed and decided by the supreme court of the state of Mas- 
 sachusetts, in the case of the Commonwealth v. Porter, Law Rep. for 1847, p. 455. In de- 
 livering the opinion of the court, Chief Justice Shaw makes the following observations: 
 "We consider it a well settled principle and rule, lying at the foundation of jury trial, admit- 
 ted and recognized, ever since jury trial has been adopted as an established and settled mode 
 of proceeding in courts of justice, that it is the proper province and duty of judges to con- 
 sider and decide all questions of law, which arise, and that the responsibility of a correct de- 
 cision is placed finally on them : that it is the province and duty of the jury to weigh and 
 consider evidence, and decide all questions of fact, and that the responsibility of a correct 
 decision is placed upon them. And the safety, efficacy, and purity of jury trial depend upon 
 the steady maintenance and practical application of this principle. It would be alike a usur- 
 pation of authority and violation of duty, for a court on a jury trial, to decide authoritatively 
 on the questions of fact, and for the jury to decide ultimately and authoritatively upon the 
 questions of law." " This, as a general principle, is applicable alike to civil and criminal 
 cases." "It is presumed that the jury followed the instruction of the court, in matter of 
 law, because it was their duty so to do, and therefore if the instruction was wrong the ver- 
 dict was wrong." "It is the duty of the court to instruct the jury on all questions of law 
 which appear to arise in the cause, and also upon all questions pertinent to the issue, upon 
 which either party may request the direction of the court, upon matters of law. And it is 
 the duty of the jwy to receive the law from the court, and to conform their judgment and decision, 
 to such instructions, as far as they understand them, in applying the law to the facts to be 
 found by them ; and it is not within the legitimate province of the jury to revise, recon- 
 sider, or decide contrary to such opinion or direction of the court in matter of law. To this 
 duty, jurors are bound by a strong social and moral obligation, enforced by the sanction of 
 
NEW TRIAL IN CRIMINAL OASES. 178 — 12 
 
 an oath, to the same extent, and in the same manner as they are conscientiously bound to 
 decide all questions of fact according to the evidence." 
 
 "In Pennsylvania," says Mr. Wharton, (Whart. Cr. Law, 2d ed. pp. 892, 893) "though 
 there has been no reported decision on the express point, yet it has not been usual, to say 
 the least, to leave the jury the law to decide. A very strong leaning to the contrary is 
 shown by Gibson, C. J. in closing a charge in a capital case: "If the evidence on these 
 points fail the prisoner, the conclusion of his guilt will be irresistible, and it will be your 
 duty to draw it." Com. v. Barman, 4 Barr. 269. So, in a homicide case, in which the pop- 
 ular sentiment, excited by the recent riots in KensingtoD, set so strongly against the pris- 
 oner, as to make possible a conviction on insufficient evidence, Rogers, J. in charging the 
 jury, told them that they were merely bound to find the law according to the court's charge ; 
 and that though they had the physical capacity to do otherwise, yet by so doing they could 
 commit a moral wrong, as much as if they should convict when their consciences told them 
 the evidence was the other way. Not varying much from this, is the language of Sergeant, 
 J. in a charge in a case of misdemeanor : " The point, if you believe the evidence on both 
 sides, is one of law, on which it is your duty to receive the instructions of the court. If 
 you believe the evidence in the whole case, you must find the defendant guilty. Com. v. 
 Vansyckle, Brightly Rep. 73." 
 
 In Ohio, in Montgomery v. The- State, (11 Ohio Rep. 424,) the court says: "By the last 
 clause of the 6th sec. of the 8th Article of the constitution of this state, it is declared, that, 
 "in all indictments for libels, the jury shall have the right to determine the law and the 
 facts, under the direction of the court, as in other cases." It would seem, from this, that 
 the framers of our bill of rights, did not imagine that jurors were rightfully judges of law 
 and fact in criminal cases, independently of the directions of courts. Their right to judge 
 of the law, is a right to be exercised only under the direction of the court ; and, if they go 
 aside from that direction, and determine the law incorrectly, they depart from their duty, 
 and commit a public wrong; and thus in criminal, as well as in civil, cases. The jury are 
 the judges of the facts, both in civil and criminal cases ; but they are not, in either, the 
 judges of the law. They are bound to find the law as it is propounded to them by the 
 court. They may, indeed, find a general verdict, including both the law and the facts, but 
 if, in such verdict, they find the law contrary to the instructions of the court, tbey thereby 
 violate their oath. Townsend v. The State, 2 Blaekf. Rep. 151. 
 
 In ilontee v. Commonl. (3 J. J. Marsh. Rep. 132,) the court of appeals of Kentucky, said: 
 " The circuit judge would be a cypher, and a criminal trial before him, a farce, if he had no 
 right to decide all questions of law, which might arise in the progress of the case. 
 
 " The jury are the exclusive judges of the facts. In this particular, they cannot be con- 
 trolled, and ought not to be instructed by the court. The are also 'ex necessitate,' the ulti- 
 mate judges, in one respect, of the law. If they acquit, the judge cannot grant a new trial, 
 how much soever, they have misconceived or disregarded the law. 
 
 " They have the right, in all cases, to find a general verdict of guilty or not guilty. As 
 guilt or innocence, is a deduction from the law and facts of the case, the jury must, therefore, 
 necessarily decide the law, incidentally, as well as the facts, before they can say, that the ac- 
 cused is guilty or not guilty. The facts prove the nature and motive of the act, which has 
 been done. Whether the act, - when its character shall be ascertained and fixed, be a 
 breach of the law, must be determined before it can be known, whether the offence charged, 
 has been committed. And hence, the jury must not only decide the facts, but also, the law 
 which is charged to have been violated by the act, which these facts establish ; and by com- 
 paring thefacts with the law, decide whether the offence charged in the indictment has been 
 proved. It is necessary, before this can be done, that the jury shall ascertain, and decide, 
 what the law is. 
 
 " But, as the judge is the organ and expositor of the law, and is placed on the bench to ex- 
 plain it to the jury, it is not only his privilege, in all cases, but it is his duty, when called on, to 
 state what the law is. And the jury should yield a respectful deference to the legal opinions 
 of the court. They have the legal power to contemn, and overrule them, but they ha,ve no 
 moral right to do so. 
 
]_7g 13 NEW TRIAL IN CRIMINAL CASES. 
 
 "In I. Institutes, 155, b. in a note, Hargrave says, 'Upon the whole, the result is, that 
 the immediate and direct right of deciding upon questions of law, is intrusted to the judges; 
 that in a jury, it is only incidental ; that in the exercise of this incidental right, the latter 
 are not only placed under the superintendence of the former, hut are, in some degree, con- 
 trolable by them ; and, therefore, that in all points of law, arising on a trial, juries ought to 
 show the most respectful deference, to the advice and recommendation of judges ; nor is it 
 any small merit in this arrangement, that, in consequence of it, every person accused of a 
 crime, is enabled, by the general plea of not guilty, to have the benefit of a trial, in which 
 the judge and jury are a check upon each other. ' 
 
 "Wynne, in his Eunomus, Dialogue, 3, s. 53, says, 'all that may here be said, upon the 
 subject of juries, is agreeable to the established maxim, ' ad questionem facti.' It is undoubt- 
 edly true, that the jury are judges, the only judges of the fact. Is it not equally within the 
 spirit of the maxim, that judges only, have the competent cognizance of the law ?" " Every 
 verdict is compounded of law and fact, but the law and the fact are always distinct in their 
 nature.' 
 
 " The jury are sworn ' well and truly to try the issue, and a true verdict to give, according 
 to the evidende.' The court decides the law, on the indictment. If the act charged, do not 
 amount to an offence, according to law, the indictment is not good. If the act charged, be a 
 breach of the law, the jury try the fact, and ascertain whether the act has been committed 
 with an illegal intent. ' The issue,' therefore, is chiefly one of fact, and the verdict must be 
 according to the evidence. 
 
 " Many incidental questions of law, may arise, during the trial, which it is impossible that 
 the jury can decide, and which, therefore, must be decided by the court. 
 
 "The controversy, as to the right of the court to instruct the jury on the law, has arisen 
 from the odious, and now abolished practice, in state libels, of restricting the jury to a spe- 
 cial verdict, finding the fact of publication only. This was subversive ofpersonal security, 
 and contrary to the great end of trials by jury. And this grievous error, has been rectified 
 by tolerating general verdicts of guilty or not guilty. A better security ought not to be de- 
 sired ; more would not be compatible with the public interest, nor reconcileable with the in- 
 tegrity of the laws. If the court erroneously decide the law, and the jury, in consequence 
 thereof, improperly convict, a new trial may be awarded. But if the jury err in their con- 
 struction of the law, and in consequence of it, improperly acquit, there is no correction. The 
 accused may then safely rely on the maxim, ' nemo bis punitur, aut vexatur proceodem delic- 
 to.' He should always be entitled to the benefit of an instruction by the court, when his 
 interest or safety may require it. The right of the commonwealth must be reciprocal. 
 
 "If the court had no right to decide on the law, error, confusion, uncertainty and licentious- 
 ness, would characterize the criminal trials ; and the safety of the accused might ho as much 
 endangered, as the stability of public justice, would certainly be. 
 
 "But the 8th section of the constitution of the state, 10th article, would remove all doubt, 
 if otherwise there might be any. It declares, that ' in all indictments for libels, the jury 
 shall have a right to determine the law and the facts, under the direction of the court, as in 
 other cases.' 
 
 "This needs no commentary. It clearly defines how the jury may determine the law 
 and the facts ; and what shall be the province of the court. It presupposes, that in all 
 cases, except prosecutions for libels, (for which it provides) the court had a pre-existing ac- 
 knowledged right, to direct the jury, as to the law; but leaves the jury then to decide the 
 whole case, compounded of law and fact. 
 
 " The court did not, therefore, in this case, err in giving the law to the jury. There is no 
 complaint, that the law was not correctly expounded. The objection is, that the court 
 usurped the prerogative of the jury, in presuming to advise as to the law." 
 
 In Texas, it has been held, that " the jury are the exclusive judges of the facts. The judge 
 may not charge them as to the weight of evidence. 1 Stat. 209, sec. 43 ; Acts of 1846, 390. 
 It is then peculiar and exclusive province to weigh the evidence ; and it is then duty to 
 find the facts alone from the evidence; and to look for them to no other quarter whatever. 
 For the law, it is their duty to look to the court." Neb v. Tlie State, 2 Texas Rep. 280. 
 
NEW TRIAL IN CRIMINAL OASES. 178—14 
 
 The weight of the authority in this country is that the jury must take the law from the 
 court. It has been so held in New York. People v. Pine, 2 Barb. Rep. 666 ; Carpenter v. 
 The Peoph, 8 Barb. 610 ; In Pennsylvania, Perm. v. Ball Add. 160 ; Massachusetts, Com. v. 
 Porter, 10 Mete. 286; Com. v. White, 10 Met. 14; Com. v. Abbott, 13 Mete. 120; In New 
 Hampshire, Pierce v, State, 13 New Hamp. Rep. 536 ; In Rhode Island, Dorr's trial, 121 ; In 
 Virginia, Davenport v. Com. 1 Leigh, 588; Com. v. Grath, 3 Leigh, 761 ; Howell v. Com. 5 
 G-rat. 664; In Ohio, Montgomery v. State, 11. Ohio Rep. 424; In Kentucky, Montee v. Com. 
 3 J. J. Marsh. 150 ; In Texas, Nets v. State, 2 Texas Rep. 280 ; And in Missouri, Hardy v. 
 State, 7 Missouri Rep. 607. 
 
 But in Maine, it has been held that if the jury believe they can be justified in deciding 
 contrary to the ruling of the judge, they have a right to take upon themselves that responsi- 
 bility. Tlie State v. Snow, 18 Maine Rep. 346. So also in Alabama, it has been held that 
 the jury are judges of both the law and the fact, and may, if they think proper to do so, dis- 
 regard the opinion of the court upon the law. The State v. Jones, 5 Ala. Rep. 666. 
 
 The penal code of Georgia, declares, that " on every trial of a crime or offence, contained 
 in this code, or for any crime or offence, the jury shall be judges of the law and the fact, 
 and shall, in every case, give a general verdict of guilty or not guilty, and on the acquittal 
 of any defendant or prisoner, no new trial, shall, on any account be granted by the court." 
 Prince, 660. The juries in Georgia can find no special verdict at law. They are declared 
 to be the judges of the law and the facts, and are required in every case to give a general 
 verdict of guilty or not guitty. In Holden v. State of Georgia, (5 Geo. Rep. 445,) the court per 
 Nisbet, J. says : " I would not be understood as holding, that it is not the province of the 
 court to give the law of the case distinctly in charge to the jury — it is unquestionably its 
 privilege and its duty to instruct them as to what the law is, and officially to direct their 
 finding as to the law, yet. at the same time, in such way as not to limit the range of their 
 judgment. In short, the court, in the full exercise of its own functions, must, still obey the 
 behest of the statute, and concede to the jury ihe exercise of their judgment on all the law 
 of ,the case." A similar doctrine has been held in Indiana. Warren v. The State, 4 Blackf. 
 Rep. 150. 
 
 6. New Trial on the ground that the Verdict is contrary to Evidence. 
 
 It may be difficult to lay down any precise rule, by which courts, in' all cases, are to be 
 governed in applications for new trials for verdicts against evidence. They are, at common 
 law, as well as by our own statute, addressed to our discretion, which is to be exercised so 
 as to subserve the great end of all trials, a fair and impartial administration of justice. Each 
 case must, in a measure, stand on its own proper ground. While, on the one hand, courts 
 will be careful not to interfere arbitrarily, or in doubtful cases, with the appropriate province 
 of the jury, on questions which our constitution and laws have placed peculiarly under their 
 jurisdiction, they will, on the other, exercise the power which the same authority has con- 
 ferred on them, when the substantial ends of justice require it. Fox v. Clifton et al., 6 Bing. 
 754; S. C. 9 id. 115. 
 
 If, therefore, it does not clearly appear that the finding of the jury is against the weight 
 of evidence ; or that it is necessary to the justice of the cause, that there should be a new 
 trial ; or that the result would or ought to be different, the court will not disturb the verdict. 
 Deader. Hancock, 13 Price, 226. 
 
 The power of the court to grant a new trial for a verdict against evidence, is not to be ex- 
 ercised, unless "in clear cases." Bartholomew v. Clark, 1 Conn. Rep. 472. "The verdict 
 ought to be manifestly and palpably against the weight of evidence, to a venire facias de novo. 
 The granting a new trial, merely because, in the opinion of the court, the verdict is rather 
 against the weight of evidence, would reduce the trial by jury to an expensive and useless 
 form, and take away the power vested in the jurors by the constitution." Palmer v. Hyde 
 4 Conn. Rep. 426; Eagle Bank v. Smith, 5 ib. 7 1 ; Johnson v. Scribner, 6 ib. 185. 
 
 In the last case, the court suggest the general rule which governs them on the subject 
 and the reason on which it is founded. "Where the verdict is manifestly and palpably against 
 the weight of evidence, the facts ought to be submitted to another jury, that they may be 
 
178—15 NB W TRIAL IN CRIMINAL OASES. 
 
 investigated and considered with great deliberation and attention, in order to correct any 
 mistake that may have intervened. Nothing is more preposterous than the idea, that the 
 mistaken decision of one jury, a fallible tribunal, may not be corrected by the re-examina- 
 tion and determination of another. 
 
 In Nichols v. Alsop, (6 Conn Rep. 480,) a new trial was granted because the verdict was 
 against the justice of the cause, and unsupported by evidence. 
 
 In Newell v. Wright, (8 Conn. Rep. 519.) we said, we feel no disposition to invade the 
 province of the jury. They are constituted judges of the facts, in every case, with the aid 
 of the court; and this should be conceded to them. At the same time, it must be yielded, 
 as the prerogative of the court, to grant new trials, in cases where the verdicts are not only 
 against the weight of evidence, but against the evidence. The rule is settled," that a new 
 trial may be granted, where the verdict is manifestly against the weight of evidence. Kinne 
 v. Kinne etal., 9 Conn. Rep. 102. Laflin v. Pomeroy, 11 Conn. Rep. 446-447. 
 
 In Davis v. The State, (2 Humph. Tenn. Rep. 439,) the court say: "The rule that this court 
 will not grant a new trial upon the facts, unless the jury shall appear to have been guilty 
 of great rashness, does not apply to criminal cases. Hi such casus, new trials have been 
 constantly granted by this court, upon its conviction that the verdicts were not warranted 
 by the proof." See Kirby v. The State, 3 Humph. Rep. 289 ; Bedford v. The State, 5 Humph. 
 Rep. 552 ; Copeland v. State, 7 Humph. 479; Cochran v. State, 7 Humph. 544. 
 
 In T e State v. Fisher, (2 Nott. & M'Cord's. Rep. 261,) where the defendant had been con- 
 victed of highway robbery, the constitutional court of South Carolina said : " Unless a ver- 
 dict is clearly and manifestly against evidence, or wholly without evidence, the court will 
 not set it aside. It is the peculiar and exclusive privilege of the jury to decide on the weight 
 of evidence, and also, on the degree of credit to which the witnesses shall be entitled." 
 
 In Virginia, in Ball's case, (8 Leigh. Rep. 726,) the principle settled was that the court, as 
 a preliminary to its interposition, must be satisfied that a clear and palpable error has been 
 committed by the jury. And in M'Cune's case, (2 Robinson's Rep. 771,) this limitation is im- 
 posed, and in language still more clear and decided. See also Sill's case, 2 Gratt. Rep. 594. 
 In Virginia, where the evidence is contradictory and the verdict is against the weight of evi- 
 dence, a new trial may be granted by the court which presides at the trial; but its decision 
 is not the subject of a writ of error or supersedeas, or examinable by an appellate court. 
 Grayson's case, 6 Gratt. Rep. 712. 
 
 After the conviction of a prisoner, a new trial will not be granted, where the evidence, 
 though circumstantial, tends strongly to show that he was guilty, and is not contradicted or 
 explained. Blevin's case, 5 Gratt. 703; nor though it is circumstantial and not conclusive 
 and warrants the finding of the jury by the force of inferences and no explanation appears. 
 The State v. Scates, 3 Strobh. Rep. 106. 
 
 In Georgia, where a new trial has been refused in the court below when asked on the 
 ground that the verdict was contrary to evidence, the supreme court will not interfere, ex- 
 cept in cases strong and unequivocal. Roberts v. State, 3 Kelly, 310. 
 
 Where, upon a conviction for arson, the court refused to grant a new trial, on the ground 
 that the verdict was against the evidence, and the testimony was conflicting, it was held that 
 such refusal was no ground for a reversal. McLane v. State of Georgia, 4 Geo. Rep. 335. 
 
 In Mississippi, the court of errors and appeals may grant new trials when there is a great 
 preponderence of evidence against the verdict. Kethler v. The State, 10 Smedes & Marsh. 
 Rep. 192. But where an accessory was found guilty on the testimony of the principal alone, 
 a new trial for that cause, was refused, although his testimony was somewhat contradictory 
 and inconsistent ; his credibility being for the exclusive consideration of the jury. lb. 
 
 7. New Trial on account of Irregularity in Impannelling the Jury. 
 
 A new trial will be granted at common law, where it appears after verdict, that some one 
 of the jurors should not have been permitted to sit upon the trial, on account of an entire 
 legal incapacity; as where it is discovered that one of the jurors was not a freeholder ; 
 {State v. Babcock, 1 Conn. 401,) or had been taken from the debtor's prison for the purpose, 
 
NEW TKIAL IN CRIMINAL OASES. 178 — 16 
 
 (Stanton v. Beadle, 4 T. R. 4T3,) or waa an infant. Russell v. Ball, Barnes, 455 ; King v. 
 Tremayne, 1 Dowl. & Ryl. 684. It is a good ground of objection, at common law, to the 
 jury, that they have been improperly chosen, or chosen by an unauthorized officer, or that 
 the officers in attendance had permitted irregularities. Where one who had been challenged 
 on the principal pannel, was afterwards sworn in under another name as a talesman ; (Parker 
 v. Thornton, 2 Lord Raymond, 1410,) and where talesmen were summoned and retimed, 
 and set on the trial, who had not beon drawn according to the statute, a new trial was 
 ordered. Kennedy v. Williams, 2 Nott & MeCord, 19 ; see Com. v. Sallagher, 4 Pa. Law 
 Jour. 520. If the party, however, is aware of the objections .to the talesman, and neglects 
 his challenge, no new trial will be granted ; (Jordan v. Meredith, 3 Teates, 318 ; Rowland v. 
 Gifford, 1 Pick. 38; 2 Bay, 150,) as the objection that the juror had not been drawn and 
 returned according to law, comes too late after verdict. Amherst v. Hadley, 1 Pick. 38. 
 Thus, where one of the jury had been drawn more than twenty days before the time when 
 the venire was made returnable, exception not having been made until after verdict, a new 
 trial was refused. State v. Hascall, 6 N. Hamp. 352. A new trial will not be granted 
 because the clerk, in calling over the jury, pursued the order in which they were ernpan- 
 neled, instead of that in which their names appeared in the venire. State v. Slack, 1 Bailey, 
 330. Wharton's Or. Law, pp. 93, 94. 
 
 In Sill v. Teates, (12 East, 229,) the court of king's bench refused to set aside a verdict in 
 a civil cause, where the son of one of the jurymen answered to the name of his father, when 
 called on the panel, and actually served as one of the jury, in lieu of his father, though he 
 had never been summoned. I must confess that that case carries the doctrine to an extent 
 which I should be unwilling to go. It appears to me to have been the verdict of but 11 
 men ; the 12th man was no juror ; he was not upon the panel ; he was not the man intended 
 to be summoned, nor was he even in fact summoned. Lord Ellenborough put it upon the 
 ground, that it was a matter within the discretion of the court to grant or refuse a new trial 
 in such a case ; and that as no injustice was pretended to have been done, the court would 
 not interfere in- this manner, but leave the party to get rid of the verdict in some other way, 
 if he could. He also observed, if they were to listen to such an objection, they might set 
 aside half the verdicts given at every asstees, where the same thing might happen from 
 accident, or inadvertence,- and possibly sometimes from design, especially in criminal cases. 
 This case marks, emphatically, the strong reluctance of that court to interfere with the ver- 
 dict of a jury upon any objection of form, not affecting the substantial merits of the case. 
 With great deference and respect, however, I must say, that I think the court in that case 
 pushed the principle to a dangerous extent. The case upon which they mainly relied, 
 differed- from it most essentially. It is stated in a note, page 230. That was the case of 
 one Robert Curry, who answered to the name of Joseph Curry, in the plaintiff 's panel, and 
 was sworn and served by that name. Robert, however, was the man actually summoned 
 by the bailiff, and was qualified to serve as a juror. The court held that this was a mere 
 misnomer in the panel of the jurymen, and was but cause of challenge, which, on being 
 stated, would have been instantly remedied, by altering the panel, and refused to interfere 
 on the ground of irregularity, although it was a, case of conviction for a capital felony. 
 There the juryman who served was the man who was intended to be summoned, and who 
 was actually summoned ; and the mistake was simply in his christian name, as put on the 
 panel. The case of Wray v. Beam & Hancock, Willes, 488, was also a case of misnomer 
 merely. Oce of the jurors was named Henry in the venire, the habeas corpora, and the 
 postea, whereas his real christian name was Harry. He was, however, the man intended, 
 and was a competent juror ; and the court refused to set aside the verdict. But the case of 
 Norman v. Beamont, Willes, 484, was, in its circumstances, precisely like the case of Hill v. 
 Yeates, 12 East; one of the jurymen was not returned on the nisi prius panel, but answered 
 to the name of a person who was, and the verdict was set aside on that ground. So, also, 
 in the recent case of The King v. Tremain, (1 Dowl. & Ryl. 684,) a son personated his father, 
 as a juror and joined in a verdict of guilty against a person indicted for perjury. The son 
 was under age, and was not. qualified by property to serve as a juror. It was held that this, 
 was a mistrial, and a new trial was granted. The judges all attach great importance to the 
 
178—17 NEW TRIAL IN CRIMINAL CASES. 
 
 circumstance that the intruding' juryman had not the legal qualifications of a juror. They 
 consider it as the verdict of only 11 jurors, on that ground. But it is evident that the deci- 
 sion in Hill v. Tales, did not meet their approbation. Dewey v. Ilobson, 6 Taunt, 460, was 
 precisely like the case of Hill v. Yates ; a man not summoned answered to the name, and 
 served in the place of one of the jurors summoned. The fact was discovered before the 
 verdict, and the plaintiff, notwithstanding, insisted upon retaining the juror, and a verdict 
 was rendered in his favor. The verdict was set aside ; and the court endeavor to distinguish 
 it from Hill v. Yates, on the ground that the plaintiff was apprised that he took the verdict 
 at his peril. But it is apparent that they did not approve of the decision in that case.' 
 
 The case of The King v. Hunt, (4 Barn. & Aid. 430,) was an information for a libel before 
 a special jury. Only ten of the special jury attended, and two talesmen were sworn, and 
 the defendant was convicted. He moved for a new trial, on the ground that the officer had 
 omitted to summon the two special jurymen, who had not attended ; and it was contended 
 that it was absolutely necessary that all should be summoned ; that the act of parliament 
 was imperative, for it required all to be summoned ; and if two might be omitted, so might 
 any other number. But the court unanimously refused the motion, saying that it would be 
 an alarming principle to establish, that a verdict could be set aside, because the sheriff had 
 omitted to summon one juryman out of the whole panel; that applications of this sort were 
 addressed to the discretion of the court ; 1hat if the officer bad not done his duty, lie might 
 be punished for it ; and if his omission has actually produced prejudice to the party, then 
 the court in its discretion might prevent injustice being done, by granting a new trial. In 
 that case the omission had not been shown to have been prejudicial to the defendant, and 
 therefore the motion was refused. This, I apprehend, is the true rule to be collected from all 
 the cases. 
 
 In the People, v. McKay, (18 Johns. 412,) the defendant was tried for murder, and convicted. 
 He was brought into this court by habeas corpm, and the indictment and proceedings against him 
 in the court of oyer and terminer were also returned, in obedience to a certiorari, directed for 
 that purpose. Upon the papers thus before the court, the counsel for the prisoner moved in 
 arrest of judgment, on the ground that no venire had been issued to summon the petit jury ; 
 and it appeared that the venire issued was not under the seal of the court, and that no offi- 
 cial return had been made to it by the sheriff. It was admitted by the counsel for the 
 people that the case stood precisely as though no venire had been issued, it having no seal, 
 and therefore was absolutely void ; but they contended that no venire was necessary: The 
 only question then, was, whether the judgment could be sustained, when the record showed 
 that no venire had been issued. Judge Spencer says: "Inasmuch, then, as a venire was 
 necessary at the common law, and as the statute yet requires it to be issued, the omission 
 to issue it, we must consider an error apparent on the record ; and in such a case affecting 
 life, we do not feel ourselves authorized to. dispense with a process required by the common 
 law, and also by the statute, although we may not be able to perceive much use in continu- 
 ing it." The decision proceeded on the ground that the error was apparent on the record, 
 and the court could not disregard it. 
 
 A non-compliance by the clerk to put the names of all the persons returned as jurors into 
 a box, from which juries for the trial of issues are to be drawn according to the statute, is 
 not sufficient ground for setting aside a verdict, either in a criminal or civil case, where the 
 court are satisfied that the party complaining has not, or could not have sustained any injury 
 from the omission ; and it was accordingly held, where on the trial of a capital case, after 
 twenty-eight jurors had been called, eleven of whom were approved and sworn, and seven- 
 teen peremptorily challenged, it was discovered that the ballot containing the name of a 
 juror who had answered on the calling of the general panel, was not in the box containing 
 the names of the jurors returned for the court, and which on search was found and put into 
 the box, and drawn out of it by direction of the oourt, and the juror sworn to serve on the- 
 jury, that the irregularity or neglect of the officer, was not such as to entitle the prisoner to 
 a new trial, it appearing to the court that the omission to put the ballot into the box pro- 
 ceeded from neglect, and not from design. 
 
 The conclusion from the cases seems to be this : That any mere informality, or mistake of 
 
NEW TRIAL IN CRIMINAL CASES. 178—18 
 
 an officer in drawing a jury, or any irregularity, or misconduct in the jurors themselves, will 
 not be a sufficient ground for- setting aside a verdict, either in a criminal or civil case, where 
 the court are satisfied that the party complaining has not sustained any injury from it. 
 
 In the state of New York, the revised statutes provide that no verdict shall be affected 
 for any imperfect or insufficient return of any sheriff or other officer, nor because the name of 
 such officer is not set to any return actually made by him ; nor for any other default or 
 negligence of any clerk or officer of the court, or of the parties, or their counsellors or attor- 
 neys, by which neither party shall have been prejudiced. All such omissions and defects, 
 and all others of the like nature, shall be supplied and amended by the court. 2 N. T. Rev. 
 Sts. 425, sec. 7. 
 
 In Pennsylvania, by act of 21st Feb. 1814, no verdict can be set aside, nor any judgment 
 arrested, for any defect or error in the jury process ; but a trial, or an agreement to try on 
 the merits, or pleading guilty, or the general issue is a waiver of all errors and defects, in or 
 relative and appertaining to the said precept, venire, drawing and summoning of jurors. 
 
 8. New Tbial on the seootd of impeopee Juey. 
 
 Incompetency of a juror, if known to the defendant before trial, and no objection made, is 
 not ground for a new trial. Lisle v. The State,-6 Missouri Rep. 426 ; 3 Marsh. 330 ; 1 Bin- 
 ney, 21; 4 Bibb, 272; 4 Littell, 118. But an .objection to a juror which would be good cause 
 of challenge, if not discovered till after verdict will be good ground for a new trial. Cain y. 
 Cain, 1 B. Monroe, 213. 
 
 A defendant who is found guilty, is not entitled to a new trial, on the ground that a juror 
 was taken from the panel on the erroneous supposition that there was good cause to chal- 
 lenge him, and another juror substituted, if the defendant did not object at the time. Com. 
 v. Siowele, 9 Met. 572. In the trial of a capital case, the original venire should be first drawn 
 and tendered; but if the judge should, where there are only eleven of the original panel di- 
 rect tales jurors to be drawn with them the prisoner has no right to a venire de novo on this 
 account, if he has had an opportunity of accepting or rejecting all of the original venire. The 
 State v. Lytle, 5 Iredell, 58. And where one of the venirewpon being called was challenged 
 by the >tate and directed to retire until the panel was gone through with, and was not after- 
 wards recalled, the prisoner making no motion to that effect, and it being known that the 
 juror was a witness for the prisoner, it was held that this was no ground for a venire de novo 
 on the part of the prisoner. lb. It is no ground for a new trial, that a challenge of a juror 
 by a party for cause lias been improperly, where the party has been tried by a jury to whom 
 he bad no objection, not having been prevented from exercising' his privilege of challenging 
 peremptorily. Whiteker v. Carter, 4 Iredell, 461. 
 
 The expression of an opinion by a juror' before trial, with regard to the guilt or innocence 
 of the accused, although good ground of challenge is not good cause for granting anew trial 
 after conviction. Com. v. Flanagan, 7 Watts & Serg. 415. But if the < juror prejudged the 
 case, leaving his mind unopen to conviction, it would be good ground for setting aside the 
 verdict. lb. See Simpson v. Pitman, 13 Ohio, 365. "Where a juror had formed and ex- 
 pressed a decided opinion on the merits of the case adverse to the defendant, and the fact 
 was not known to the party or his counsel, after the exercise of proper diligence, by asking 
 the juror before he was sworn whether he had formed and expressed an opinion, it was held 
 that the defendant was entitled to a new trial. Vennum v. Harwood, 1 Gilman Rep. 659 ; 
 Monroe v. State of Geo. 5 Geo. Rep. 85. • 
 
 Loose impressions and conversations of juror as to the prisoners guilt or innocence, found- 
 ed upon rumour, where they are disclosed after verdict, will not be a cause of new trial. 
 Eowerton v. The State, 1 Meig's Tenn. Rep. 262. In North Carolina, in a capital case a new 
 trial was refused, where a juror said on oath that he had not formed an opinion of it, and 
 after the verdict it was proved that he had said that he had made up his opinion, which was 
 unknown to the prisoner. The State v. Scott, 1 Hawk. 24. But in Illinois, where a juror at 
 different times before the trial of a prisoner for mnrder, said he belived the prisoner " would 
 be hung," that he ought to be hung, that nothing could save him, that salt could not save 
 
178 19 NEW TRIAL IN CRIMINAL OASES. 
 
 him, and that there was no law to clear him ; and subsequently went to the jail^vhere the 
 prisoner was confined and told him that he ought not to he hung, and if he were on the 
 jury he should not be. hung ; but afterwards when sworn on the trial touching his compe- 
 tency as a juror he. stated that he had formed no opinion, and, no objection being made, he 
 was sworn on the jury, and the prisoner convicted, a new trial was granted on the ground 
 of the incompetency of the juror. Setters r. The People, 3 Scam. 412. In Virginia, after a ver- 
 dict of guilty, in a capital case, the prisoner offered testimony that two of the jurors who 
 tried the case, and who on their voir dire declared that they had not formed or expressed an 
 opinion as to the guilt or innocence of the prisoner, had in fact previous to the trial, express- 
 ed decided opinions that the prisoner was guilty and ought to be hung ; of which circum- 
 stance the prisoner alleged that he had no knowledge, until since the verdict was rendered ; 
 and on this ground he moved for a new trial. Held, that the inquiry was open, and the evi- 
 dence admissible for the purpose of showing perjury and corruption in the jurors, but that it 
 belonged exclusively to the judge who presided at the trial to weigh the conflicting credibi- 
 lity of the witnesses adduced by the prisoner and of the jurors, and to decide whether, in 
 justice to the prisoner, and upon all the circumstances of the case, a new trial ought or ought 
 not to be granted. Heath's case, 1 Robinson T35. 
 
 Where a juror is charged with having pre-judged the case, it seems his affidavit may be 
 read in self exculpation. Taylor v. Greely, 3 Greenleaf. 204. 
 
 9. New Trial on Account of Misconduct of Jury. 
 
 Separation op Jury. — " The general rule," says Mr. "Wharton, (Cr. Law, 895,) " is that the 
 verdict will not be set aside on account of the misconduct or irregularity of a jury, even in a 
 capital case, unless it be such as might affect their impartiality, or disqualify them for the 
 proper exercise of their functions. An exception, however, formerly existed in England, 
 and is still recognized in several of the United States, in felonies where the jury separate 
 after the opening of the evidence. While on the one hand the present practice in England, 
 and in a portion of the American courts, is to sustain the verdict when the separation has 
 been inadvertent, and no abuse has resulted from it, on the other hand it has been consider- 
 ed in several instances that the mere separation without permission is in itself prima facie 
 reason for a new trial. 
 
 " The latter doctrine' was pressed with great rigor by the early common law authorities, in 
 all cases, both civil and criminal ; it being agreed that by " the law of England, a jury, after 
 their evidence given upon the issue, ought to be kept together in some convenient place, 
 without meat or drink, fire or candle, which some books call an imprisonment, and without 
 speech with any, unless it be the bailiff, and with him only if they be agreed." A more 
 humane system has Since been recognized ; and in all cases not capital, it appears that juries 
 are permitted to separate whenever in the discretion of the court it seems proper. In capital 
 cases, however, it would seem that under no circumstances will separation be permitted until 
 a verdict is agreed on ; and so far, as has been seen, has this doctrine been pushed in several 
 instances in this country, that it has been held that if the jury be discharged, except in case of 
 such necessity as may be considered as the act of God, such discharge is a bar to a second 
 trial. In England, no case occurs, however, of an application for a new trial under such cir- 
 cumstances, the practice there being, as has been shown, after convictions for felony, for the 
 judges, in case of irregularity, to recommend a pardon. In this country a different course 
 has been followed, and the question has in several cases received the consideration of courts 
 of the highest judicature." . 
 
 In an early case in Virginia (Com. v. JSTCaul, 1 Va. Oas. 2*71,) where the defendant had 
 been convicted of grand larceny, it appeared that one of the jurymen, during a temporary 
 adjournment of the court went to the house at which he boarded, without the officer of the 
 court, and was absent fifteen or twenty minutes. The person with whom the juryman 
 boarded seated that he was in his room when he was called to dinner, and that the juryman, 
 except whilst dining, remained in his own room. Another juryman on the morning of ano- 
 her day of the trial, attended by the officer, went to visit a sick child. They were absent 
 
NEW TRIAL IN CRIMINAL OASES. 178—20- 
 
 about twenty minutes and the officer remained below, whilst the juryman went up stairs to 
 see his family, and was absent from the officer about five minutes. There was no proof of 
 any actual tampering or conversation on the subject of the trial with the juryman ; and the 
 court held that it was not necessary that this should be proved, in order that the verdict 
 should be set aside; and a new trial granted. In Tennessee, in the case of M'Lain v. Tlie 
 State, (10 Terger, Rep. 241,) where the defendant had been convicted of murder, a new trial 
 was granted under similiar circumstances, and the case of Corn. v. M? Gaul was cited and ap- 
 proved. In a still later case however in Tennessee (Stone v. The State, 4 Humph. Rep. 27,) 
 it was held that a new trial would not be granted in a capital case because the jury separa- 
 ted and mingled with the rest of the community, and because the sheriff who was not a 
 sworn officer if the jury had charge of them for a time, where it is satisfactorily shown that 
 the jury were not tampered with. In a very late case in Tennessee (Hines v. The State, 8 
 Humph. Rep. 59?,) the court laid down the following principles as the settled law of the 
 state: — 1. That the fact of separation having been established by the prisoner, the possibi- 
 lity that the juror has been tampered with, and has received other impressions than those 
 derived from the testimony in court, exists, and prima facie, the verdict is vicious. 2. But 
 this separation may be explained by the prosecution, showing that the juror had no com- 
 munication with other persons, or that such communication was upon subjects foreign to the 
 trial, and that in fact, no impressions, other than those drawn from the testimony, were made 
 upon his mind. 3. In the absence of such explanation the mere fact of separation, is suffi- 
 cient ground for a new trial, approved in Luster v. The State, 11 Humph. Rep. 169. 
 
 See also Whitney v. The State, 8 Mis. Rep. 165. In the state of New York, (in The Peo- 
 ple, agt. Douglass, 4 Cowen's Rep. 26,) (1825,) it was held that the mere separation of a jury, 
 though impannelled to try a capital offence, and though they separate contrary to the direc- 
 tions of the court, will not of itself be sufficient cause for setting aside the verdict, but that 
 if there was the least suspicion of abuse, the verdict should be set. aside. And see also The 
 State v. Lytle, 5 Iredell, 58: Pulaski v. Ward, 2 Rich. 119; Graves v. Monet, 7 Smedes & 
 Marsh. 45. 
 
 In Mississippi, where jurors were taken, with the consent of the prisoner, to a hotel, and ate 
 at the public table, though separated by an officer from other guests, and were shaved by a 
 barber, admitted to their room, though an officer was present and heard no talking, it was 
 held to be a violation of the common law rule, which requires the jurors to be kept together, 
 and that no person shall speak with them; and a new trial was granted. Poles v. State, 13 
 Smedes & Marsh. 398. 
 
 Whether the mere separation of the jury in a criminal case, is of itself sufficient to set aside 
 a verdict, is an open question, and one by no means authoritatively settled. In civil suits 
 and small misdemeanors, the prevalent authority in England is,- that the separation of the 
 jury is not sufficient to set aside the verdict. The King v. Wool and others, 1 Chit. 401. In 
 cases of felony, however, many of the courts, especially in this country, seem inclined to adopt 
 a stricter rule. It is frequently stated in the authorities, that in modern times, the antiqua- 
 ted strictness of the law has been much relaxed in this regard, and that in no case is it ne- 
 cessarily wrong, for a jury to disperse with or without the permission of the court, during 
 the progress of the trial. 11 Ohio Rep. 474 ; 13 ib. 492 ; 15 ib. 7 2 ; 4 Cowen, 26 ; 1 Pennsyl. 
 Rep. 218 ; 1 Halst. 110 ; 1 Gallison's C. C. R. 360 ; 2 South Caro. Rep. 821 ; 1 Conn. 232, 238; 
 in note 3 Cowen, 355 ; 8 Pick. 170 ;~ 4 Johns. 487 ; 1 Chit. Cr. L. 629 ; 2 B. & A. 426 ; 2 Wend. 
 352; 3 Johns. 252. 
 
 And yet in the oldest case reported, to wit : the Earl of Kent's case, in the year-book, in 
 the reign of Henry VII., it was decided that the dispersion of a jury by reason of a thunder- 
 storm, and a conversation held with some of them, in which it was suggested that the mat- 
 ter in controversy was better for the Earl of Kent than the Bishop, upon great consideration, 
 the verdict was sustained and pronounced good, notwithstanding the irregularity. 
 
 In a note to Smith & Thompson, (1 Cowen, 221,) by the learned reporter, all the cases, 
 English and American, are collated, and the conclusion of this review is, that the propriety 
 or impropriety of keeping the jury together in each, particular case, is a matter resting pretty 
 much in the sound discretion of the court. 
 
178—21 NEW TRIAL IN CRIMINAL CASES. 
 
 Misbehavior op Jurors.— In New York, The People v. Douglass, (4 Cowen, 26,) was a 
 capital case, and the jurors were only allowed to leave the court room under the charge of 
 two sworn constables, with the direction of the court to keep together and return speedily. 
 Contrary to their duty, two of the jurors separated from their fellows and the officers, and 
 while so separated, ate, drank spirituous liquor, and conversed with by-standers on the sub- 
 ject of the trial. The jurors knew that they were disregarding the instructions of the court, 
 and doing that which the officers could not rightfully permit to be done; and for this "misbe- 
 havior, the verdict was set aside. 
 
 So, too, in Brant v. Fowler, (7 Cowen, 562,) the jurors were not allowed to separate, but 
 were permitted to leave the court room, accompanied by an officer. One of the number sepa- 
 rated from the officer, and drank brandy ; and for that cause, the verdict was set aside. This 
 case certainly goes very far, for it appears that the juror did not intend to disregard his duty. 
 He mistook the charge of the judge, and only drank a small quantity, of brandy as a remedy 
 for disease. But still the jurors were not, as in this CEise, at liberty to go where they pleas- 
 ed; nor had they the right to take either food or drink, without the permission of the court. 
 It should also be added, that the judge had delivered his charge, and the trial, as to every 
 thing but the verdict, was at an end, before the jurors were permitted to retire. 
 
 In a late case ( Williams v. Abrahams, 1 Hill's R. 207,) the supreme court of New York.per 
 Branson, J., .in commenting upon the foregoing cases, said: "The case of Brant v. Fmvler 
 cannot, I think, be supported. The mere fact that some of the jurors, 'of their own head,' 
 drink spirituous liquor in the course of a cause, if, as was admitted in that case, there 'has 
 been no mischief,' cannot be a sufficient ground for setting aside the verdict. There is no 
 authority, ancient or modern, so far as I have observed, which goes far enough to uphold 
 such a doctrine. The case of The People v. Douglass, must be considered as having turned 
 upon all the grounds of irregularity which were urged against the verdict, arid not on the 
 single objection that some of the jurors drank spirituous liquor. In "addition to the fact of 
 drinking, two of the jurors contrary to their duty, separated from their fellows, and one of 
 them conversed, with the by-standers on the subject of the trial. 
 
 "It is worthy of remark, that in the two cases which have just been noticed, not a single 
 authority, or oven dictum, was referred to for the purpose of showing that the drinking of 
 the jurors at their own expense, where there is no reason to suppose there has been any ex- 
 cess, is, in itself, a sufficient ground for disturbing the verdict. The earlier cases in this court 
 had gone upon the principle, that notwithstanding a trifling irregularity on the part of the 
 jury, the verdict should stand, unless there was some reason to suppose that, the party mo- 
 ving might have suffered by the misconductof which he complained. Smith v. Thompson, 1 
 Cowen, 221; Horton v. Eorton, 2 id. 589 ; Ex parte Hill, 3 id. 355. This rule is in accordance 
 with the ancient cases to which I have already referred. 
 
 " When, in the course of the trial, a juror has in any way come under the influence of the 
 party who afterwards has the verdict, or there is reason to suspect that he has drank so 
 much, at his own expense, as to unfit him for the proper discharge of his duty, or where he 
 has so grossly misbehaved himself in any other respect as to show that he had no just sense 
 of the responsibility of his station, the verdict ough t not to stand. But every irregularity 
 which would subject the juror to censure, whether in drinking spirituous liquor, separating 
 from his fellows, or the like, should, not overturn the verdict, unless there be some reason to 
 suspect that the irregularity may have had an influence on the final result." 
 
 In The State v. Prescott, (7 N. Hamp. Rep. 287j) the superior court of New Hampshire 
 did not seem prepared to follow the New York decisions of The People v. Douglass, and Brant 
 v. Fowler, even in a capital case. Nor were they followed in Massachusetts, in Com. v. Roly, 
 (12 Pick. Rep. 510, 516, 520,) which was also a capital case. 
 
 In Tennessee, a new trial will not be granted upon affidavits that the - jury drank ardent 
 spirits at their meals during the progress of the trial, without proof that they were thereby 
 disqualified from duly considering the case. The irregularities charged, must be stated posi- 
 tively and specifically, and be sustained by oath. Stone v. Tlie State, 4 Humph. 27. 
 
 But see Gregg v. WDaniel, 4 Harring. Del. Rep. 367 ; Pelham v. Page, 1 Eng. Ark. Rep. 
 535. 
 
NEW TRIAL IN CRIMINAL CASES. 178—22 
 
 In Tennessee, in the case of Hogshead v. The State, (6 Humph. Rep. 59,) the plaintiff in 
 error was indicted for a felony in passing and offering to pass a counterfeit Mexican dollar. 
 The defendant below elected as one of the jury an individual, who, it seems from the affidavits 
 made to procure a new trial after his conviction, was of intemperate habits. The general 
 state, of these habits was known to defendant and his counsel, but the latter did not know, 
 and it does not appear that the former knew, that these habits had frequently produced the 
 bodily and mental disease calle'.l delirium tremens, or mania a potu. It appears from the 
 affidavits referred- to, that during the investigation of the cause in court, the manner of the 
 juror indicated him to be in a state of dull and stupid abstraction. At night the jury were 
 taken in care of an officer to some room in town to consider of their verdict and to be kept 
 together. About eleven o'clock at night, the. juror became much indisposed, and was 
 threatened with spasm and on the verge of an attack of delirium tremens. 
 
 The physician who usually attended him on such occasions, was sent for; and he testifies, 
 that from the condition in which be found his patient, and from the knowledge lie had of his 
 case in general, and from attendance on him during former attacks, that he would hot have 
 -been, during the investigation of the. cause in court, in a condition to have possessed him- 
 self intelligently, of the facts and circumstances of the case, so as to have performed in a 
 rational manner the duties of a juror. In the morning the juror continued dull and stupid, 
 but on taking a draught of ardent spirits and breakfasting, he seemed pretty well. Some of 
 the jury testified that he manifested more intelligence than they had expected in discussing 
 with them the testimony ; but whether his knowledge in this respect was the result of at- 
 tention in court or was picked up in the jury room, they did not know. It does not appear 
 that before the verdict was given, the prisoner or his counsel knew of the condition of the 
 juror, during the preceding night. 
 
 By the court. Upon the whole case, we think, the prisoner is entitled to a new trial ; not 
 on the ground that the juror may have been under the influence of ardent spirits as stated 
 by one of the witnesses, when he first entered the jury box, or that he took a draught of 
 ardent spirits on the morningthe verdict was rendered ; nor on the ground of the slight sepa- 
 ration of the jury,. which became necessary when the physician visited the juror; when we 
 think it is shown nothing improper took place ; but upon the ground that it is probable that 
 during the investigation of the cause in court and the deliberations of the jury upon their 
 verdict, the juror in question was not in a state of mental and bodily health, enabling him to 
 perform his duties intelligently; and that this fact was unknown to the court, to the counsel 
 on both sides and to the prisoner, until after the verdict. 
 
 In Illinois, during the progress of a trial for murder, one of the jurors, while one of the 
 counsel for the prisoner was addressing the jury, had a chill, and was, by order of the court, 
 placed upon a pallet. During a part of the time; he was in a slumber, and did not fully com- 
 prehend the whole of the argument, though lie had understood the whole of the evidence, 
 and all that had been said by counsel previously. The fact that he was asleep, was known 
 to the. prisoner at the time, but .the attention of no one was called to it. Held, that this was 
 not sufficient cause for setting aside the verdict. Baxter v. The People, 3 Gilman's Rep. 368. 
 
 Any communication, even from the judge, not, made in open court, and before the parties 
 will avoid the verdict. Thus the sending in by the judge" of a prior written charge to a, 
 grand jury, was held to avoid the verdict. Holton v. The State, 3 Florida Rep. 47 6. But where, 
 after the jury had retired to consult on their verdict, they sent a note in writing to the court 
 in absence of parties and.counsel, requesting advice on certain points in the case, and the 
 judge returned the writing without reply, and directed the officer to hand a volume of reports 
 to the foreman, and to request him to rend a part of a decision, to the effect that a jury in 
 such circumstances, could not communicate with the judge, except in open court ; it was held 
 that this was not a sufficient reason for a new trial. Com. v. Jenkins, Thacher's C. C. 118. 
 The former practice was, that if the jury send for a book, after departure from the bar, and 
 read it, the verdict is avoided; and, on ODe occasion, Lord Tenterden, though the counsel on 
 both sides consented, refused to send out to the jury, on their request, a copy of "Selwyn's 
 Law of Nisi Prius," observing that the proper course for the jury to adopt was for them to 
 come into court, state their question, and receive the law from the court. Burrows v. Unwin, 
 
178—23 NEW TRIAL IN CRIMINAL CASES. 
 
 3 Carr. & Payne, 310. But in Commonwealth v. Jenkims, (Thacher's Cr. Cag. 118,) it was held 
 that it was not a sufficient ground for a new trial, that, on the trial of a case in which the 
 jury were to decide upon both law and fact, the officer in attendance delivered to them, at 
 their request, without application to the court, after they had retired to consult upon a verdict, 
 a volume of the laws of the commonwealth containing the act upon which the indictment 
 was founded, which act had been commented by the counsel and by the court, and which 
 volume the court would have given them leave to take with them if requested. But see 
 Lott v. Macon, 2 Strobh. Rep. 410. 
 
 If a jury after retiring to consider of their verdict hear other testimony it will vitiate 
 the whole procedure. Knight' v. Freeport, 13 Mass. 218 ; Bennett v. Howard, 3 Day, 223 ; 
 Perkins v. Knight, 2 New Hamp. Rep. 414; Hudson v. State, 9 Terger 468. If a juror, not 
 being sworn as a witness, after the jury has retired, state facts of his own knowledge, which 
 his fellow jurors regarded as evidence, a new trial will be granted. Booty v. The State, 4 
 Yerger, 111; Talmadgev. Northrop, 1 Root, 522. Where the officers attending upon the 
 jury, under a mistake of duty, permitted them to read the newspapers, the officers first in- 
 specting them, and cutting out everything that in any manner related to the trial; and 
 it appeared that, in point of fact, the juror never saw anything in any newspaper relative to 
 the trial, and, after the charge from the court, were not allowed to see any until they had 
 delivered their verdict, it was held that this was an irregularity in the officer, but not suffi- 
 cient to justify the court in setting aside a verdict and granting a new trial or treating the 
 matter as a mistrial. United States v. Gibert, 2 Sumner Rep. 21. 
 
 In Tennessee, in the case of Luster v. The State, (11 Humph. Tenn. Rep. 169,) where the 
 defendant had been tried and convicted in the circuit court for malicious stabbing, a motion 
 was made in the supreme court for a new trial,"on the following grounds : the evidence being 
 closed, the jury were respited for the night and placed in charge of an officer, with proper 
 injunctions from the court to keep them together and apart from others : the officer removed 
 them to an upper room and was very careful in the performance of his duty : the jury were 
 together near the fire place, one of them playing on the fiddle ; the officer went down for wood 
 or water, and in his absence one Andrew Bowman walked into the robny and on being told 
 by one of the jury to take a seat, he did so, taking a seat on a bed, apart from the jury. 
 There was no other conversation with him — he did not mingle with the jury — when the offi- 
 cer returned, the intruder was immediately removed. Motion for new trial denied. 
 
 Where one of the jurymen stated to his fellows, after they had retired, that he had heard 
 a witness, whose credibility was attacked at the trial, sworn before the grand jury, and that 
 his statement was the same as he had made on the trial, and it appeared that his statement 
 had much influence in producing the verdict of guilty, it was held that this proceeding was 
 illegal and vitiated the verdict Bonstan v. State, 6 Humph. 2'75. 
 
 After a jury had retired, they came again into court to hear explanations from' a witness 
 who .stated an additional and important fact, not before stated by him, but which fact the 
 court immediately told the jury to disregard. Held, that the affidavit of the juror, stating 
 that he founded his verdict entirely upon this additional fact, would not authorize a new 
 trial. Hudson v. The State, 9 Terger, 408. 
 
 Where, after a jury had retired under the attendance of an officer, and before the court 
 adjourned, another officer was sworn to attend upon them, but after the adjournment a third 
 was sworn by the clerk to supply the place of the second for a few minutes ; it was held, 
 that this'was according to usage, and no ground for a new trial. Com. v. Jenkins, Thacher's 
 Cr. Cas. 118. 
 
 Whore a person who was not a sworn officer, was permitted to go to the jury room after 
 the jury had retired to make up their verdict in a capital case, and to have charge of them 
 in the absence of the bailiff, it was held sufficient ground for a new trial. Hare v. The State, 
 
 4 How. Miss. Rep. 181. In a very recent capital case in Mississippi, where the jury were 
 out under the charge of an unsworn officer, it was held that it must appear affirmatively, 
 that the jury were in no way affected thereby ; otherwise the verdict would be set aside. 
 McCann v. The State, 9 Smedes & Marsh. Rep. 465. 
 
 A new trial will not be granted on account of idle words spoken to a juror by a bystander, 
 
NEW TRIAL IN CRIMINAL CASES. 178—24 
 
 it not appearing that there was any fault on the part of the juror, or that of the party in 
 whose favor the verdict was given. Stewart v. Small, 5 Miss. Rep. 525. 
 
 In Tennessee in Jimj. The State, (4 Humph. Rep. 289,) it appeared in evidence that the 
 shoes of the defendant were about half an inch longer than the tracks which left the house 
 where the deceased was shot, and which were discovered next morning after he was shot. 
 It appeared that the jury believed that the tracks of a man running were shorter than when 
 walking ; and for the purpose of ascertaining the truth of the assertion they went out and 
 measured the tracks of a juror walking and running, and found the fact to be so; and this 
 experiment removed the difficulty they felt in reconciling the discrepancy between the length 
 of the tracks and the shoes of Jim. " "We cannot " (says the supreme court, in reversing the 
 judgment and remanding the case for a new trial) " permit verdicts which have been obtain- 
 ed like this, upon uncertain and dangerous experiments, instead, of a calm, deliberate, and 
 philosophical examination of the proof; to stand, where the lives of individuals are at 
 stake." 
 
 In Tennessee in the case of Crawford v. The State, (2 Terger, 60,) where a juror was not 
 satisfied of the guilt of the prisoner, but assented to a verdict of guilty, under an impression 
 suggested by his fellow jurors, that the governor would pardon the defendant, if the jury, 
 by their verdict, recommended it ; it was held that this was sufficient cause to set aside the 
 verdict. And in the same state, in the late case of Oochran v. The State, (7 Humph. 544,) 
 where a juror made affidavit that he believed the prisoner was innocent, and that he assen- 
 ted to a verdict of guilty, under the,belief, induced by the assertions of his fellow jurors, 
 that there were fatal defects in the proceedings which would prevent the prisoner from being 
 sent to the penitentiary and that the governor would pardon the defendant, if recommended 
 to mercy in the verdict, it was held ground for a hew trial. 
 
 Formerly, the testimony of a juror was admissible to impeach the verdict of his fellows. 
 
 It seems that by the common law before the revolution, the affidavits of jurors could be 
 received, and this was the constant practice before the time of Lord Mansfield, except in two 
 cases. In 1767, Lord Mansfield permitted it to be shown by the affidavit of jurors, that a 
 wrong verdict was delivered by the foreman. He says, " the court had no doubt about the 
 , fact of this mistake, from the affidavit of eight of the jurymen, confirmed, as they held it in 
 effect to be, by the foreman" declining to make any affidavit at all." Bur. 324. His Lord- 
 ship in the year 1710, changed the practice, and refused to admit the affidavit of a juryman 
 to show that he had given his verdict under a mistake. Bur. 2687. In the year 1785, we 
 find him adhering to the last decision, in refusing the affidavits of jurors to .set aside a ver- 
 dict. The fact that they offered to prove was, that they tossed up, and the plaintiff won. 1 
 Term Rep. 11. The court says, they must derive their knowledge from other sources. 
 Three years afterwards, in 1788, during his Lordship's time, but he "was not present in court, 
 we find the court of King's Bench refusing to receive an affidavit made by all the jurymen, 
 to show a mistake in entering up their verdict. The court said, they laid no stress upon its 
 being made by all the jury : if it could be made by all, upon the same principle it could be 
 made by some. 2 Term, 282. The reason assigned by the court is, such a practice would 
 be productive of infinite mischief. 
 
 "It would open each juror," declared Mansfield, C. J., "to great temptation, and would 
 unsettle every verdict in which there could be found upon the. jury a man who could be in- 
 duced to throw discredit on their common deliberations." Nor are subsequent declarations 
 of jurymen, after a general verdict, admissible to explain or qualify it, though the affidavits 
 of bystanders, as to what passed within their knowledge, touching the delivery of the ver- 
 dict, may be received. "Whart. Cr. Law, 907, citing, Owen v. Warbwton, 1 N, R. 326 ; 
 Eindle v. Bird, 1 Moore, 455 ; Aylett v. Jewell, 1 H. Black. 1299 ; Vaise v. Delaval, 1 Term 
 R. 11; Stralcery. Graham, 4 M. & "W. 721; Clark v. Stevenson, 2 H. Blac. 803; E. v. 
 Wootter, 6 M. & S. 366. 
 
 In the United States the English rule seems to have been generally adopted. "Wharton's 
 Cr. Law, citing, Dana v. Tucker, 4 Johns. 487; Sergeant v. Deniston, 5 Cowen, 106; Ex 
 parte Caylcendatt, 6 Cowen, 53 ; People v. Cokmbia, &c, 1 "Wendell, 297; State v. Freeman, 
 5 Connect. 348 j Co ohran v. Steel, 1 "Wash. 79; Price v. Tugna, 1 Hen. & Mun. 385; dug- 
 
178 25 NB W TRIAL IN CRIMINAL OASES. 
 
 gage v. Swan, 4 Binney, 150; Willing v. Swasey, 1 Browne, 123; Robbins v. Wendover, 2 
 Tyler, 11 ; Bladen v. Cockey, 1 Har. & M'Henry, 230 ; Sate v. Doom, Charlton, 1 ; Taylor v. 
 Gigtr, Hardin, 586; Steele, v. Logan, 3 A. K. Marshall, 394; Heath v. Conway, 1 Bibb. 398; 
 Den v. McAllister, 2 Halst. 46; Johnson v. Davenport. 3 J. J. Marshall, 390; Briggs v. Eg- 
 gleston, 14 Mass. 245; Com v. Drew, 4 Mass. 439; Forester v. Guard, Breese, 49; though, 
 see Sawyer v. Stephenson, Breese, 6; Grinnill v. Phillips, 1 Mass. 530; Hudson v. State, 9 
 Terger, 408 ; Crawford v. Slate, 2 Yerger, 60. 
 
 In the case of The State v. Freeman (5 Connec. Rep. 348,) the question was whether the tes- 
 timony of a juror was admissible to show that another juror in the jury-room gave material ' 
 information, concerning facts not in evidence. By the court, Hosmer, C. J., there is no har- 
 mony on this subject among the English cases; but the most modern determinations have 
 adjudged such testimony to be inadmissible. In Vaise v. Delaval, (1 Term Rep. 11.) the of- 
 fered evidence of a juror, to prove the deciding by lot, in the jury-room, was rejected ; and 
 in the case of Owen & al. v. Warburton, (1 New Rep. 326, 329,) it was determined, in con- 
 formity with the opinion of all the English judges, that the affidavit of a juror, stating "a simi- 
 lar fact, could not be received. In delivering the opinion of the court, it was said, by Sir 
 James Mansfield: "It is singular indeed, that almost the only evidence of which the case 
 admits should be shut out; but considering the arts, which might be used, if a contrary rule 
 were to prevail, we think it neeessary to exclude such evidence. If it were understood to 
 be the law, that a juryman might set aside a verdict, by such evidence, it might sometimes 
 happen, that a juryman, being a friend of one of the parties, and not being able to bring 
 over his companions to his opinion, might propose a decision by lot, with a view, afterwards, 
 to set aside the verdict, by his own affidavit, if thedecision should be against him.'' 
 
 In the state of Massachusetts, in Grinnell v. Phillips, (1 Mass. Rep. 530J the point has 
 been raised ; and, with little discussion, two judges against one, admitted the testimony of" 
 a juror to the misconduct of his associates. 
 
 The latest decision I have seen in the state of New-York, was in Dana v. Tucker, (4'johns. 
 Rep. 487 ;) and, in this case, the court determined, "that the better opinion is, and such is . 
 the rule adopted by this court, that the affidavits of jurors are not to be received to impeach 
 a verdict ; but they may be admitted in exculpation of the jurors, and in support of the ver- 
 dict." 
 
 In Lessee of Cluggage v. Swan, (4 Binn. 150,) Yeates", J., the only judge who expressed 
 an opinion on the point, was decidedly of opinion, that such testimony was inadmissible. 
 
 The rule in Virginia is to the same effect. Cochran v. Street, 1 Wash. Rep. 79, 81. 
 Price's exr. v. Warren, admr. of Fuqua, 1 Hen. k Mun. 385. 
 
 In this state, it has been the practice to admit such testimony; but said Oh. J. Swift, (1 
 Dig. 775,) "In England, and in the courts of the United States, jurors are not permitted to 
 be witnesses respecting the misconduct of the jury; for it is a great misdemeanor; 'and this 
 is most unquestionably the correct principle; for otherwise, a juror, who should be disposed 
 to set aside a verdict, would give information to the party for that purpose ; if not so dis- 
 posed, he could suppress the information; and, in that way, any of the jury could command 
 the verdict." 
 
 The question before us regards a point of practice; and as this cannot have any conse- 
 quences antecedent to this case, it is competent for the court to decide, unshakled by pre- 
 cedent, and change the rule, if justice requires it. Robinson v. Bland, 1 Wm. Black. Rep. 
 264. 
 
 If the question depended merely on equitable grounds, as relative to the immediate par- 
 ties to the suit, the testimony in question, perhaps, ought to be received. But there aro 
 higher considerations to be resorted to. On. a principle of policy, to give stability to the 
 verdicts of jurors, and preserve the purity of trials by jury, the evidence ought not to be 
 admitted. The reasons assigned by Sir James Mansfield, in Owen v. Warburton, and by Ch. J. 
 Swift, in his digest, are of groat weight. The sanctioning of the testimony of one juror, rel- 
 ative to the misbehaviour of the rest, would open a door to the exercise of the most perni- 
 cious arts, and hold before the friends of one of the parties, the most dangerous temptation. 
 By this capaoity of penetrating into the secrets of the jury-room, an inquisition over the 
 
NEW TRIAL IN CRIMINAL CASES. 178 — 26 
 
 jury, inconsistent with sound policy, as to the manner of their conduct, and even as to the 
 grounds and reasons of their opinions, might ultimately be established, to the injury and dis- 
 honor of this mode of trial ; imperfect, undoubtedly, but the best that can be devised. 
 And under the guise of producing equity, there might be generated iniquity, in the conduct of 
 jurors, more to be deplored, than the aberration from law, which, undoubtedly, sometimes 
 takes place. 
 
 The opinion of almost the whole legal world is adverse to the reception of the testimony 
 in question ; and, in my opinion, on invincible foundations. 
 
 In Georgia, in The State v. Soon & Diamond, (R. M. Chalt, Rep. 1,) on a motion for a new 
 trial the affidavits of two of the jurors were produced, stating that they did not in fact agree 
 to the verdict which was rendered. Judge Berrien said: "Upon the general question 
 whether affidavits of this kind may be received, I think the case of Vaise v. Setaval, (1 Term 
 Rep. 11,) conclusive. Upon a motion to set aside a verdict upon an affidavit of two jurors, 
 who swore that the jury being divided in their opinion, tossed up and that the plaintiffs 
 friends won, &c, &c. Lord Mansfield said the court cannot receive such an affidavit from 
 any of the jurymen themselves, in all of whom such conduct is a very high misdemeanor: 
 but in every such case the court must derive their knowledge from some other source: such 
 as from some other person having seen the transaction through a window, or by some such 
 other means. But there are other and stronger reasons than that assigned by Lord Mans- 
 field, why in cases like the present, such affidavits should not be received. When the jurors 
 return into court after deliberating upon a case submitted to them, their names are severally 
 called by the clerk and they are asked if they are agreed on their verdict. Their written 
 verdict signed by their foreman is then read aloud in their presence, and the clerk thereupon 
 adds, "so say you all." If the fact which is stated in these affidavits had occurred, this was 
 the proper time to have made it known to the court. But after having rendered in his ver- 
 dict upon oath, shall we permit the juror by oath to deny that such was his verdict, whence 
 it will inevitably result that he must have violated the oath administered to him as a juror 
 in the cause, or that which he has voluntarily taken before t-he magistrate. Moreover it 
 would afford such room for the exercise of improper influence, that if this doctrine were 
 once established, few verdicts could stand." 
 
 In Tennessee, it appears to be the practice to receive the affidavits of jurors to impeach 
 the verdict of their fellows. Crawford v. State, 2 Yerger, .60 ; Cochran v. State, 1 Humph. 
 544; Luster v. State, 11 Humph. 169. Evidence of improper conduct by a party out of 
 court, calculated to have an influence upon the trial, such as exhibiting papers at public 
 places where members of the jury boarded,' would be a sufficient cause for setting aside a 
 verdict in a civil case, and the court may, in its discretion, set aside a verdict in a criminal 
 case, upon evidence of like conduct on the part of the prosecutor. State v. Eascall, 6 New 
 Hamp. Rep. 352. 
 
 New Trial on the ground of Newly discovered Evidence. 
 
 It is incumbent on a party who asks for a new trial, on the ground of newly discovered 
 evidence, to satisfy the court : 
 
 1. That the evidence has come to his knowledge since the trial. 
 
 2. That it was not owing to the want of due diligence that it did not come sooner. 
 
 3. That it would probably produce a different verdict, if a new trial was granted. 
 
 4. That it is material to the issue, going to the merits, and not impeaching a former witness. 
 
 1. The evidence must have been ascertained since the trial. 
 
 If new evidence is discovered before the verdict is rendered, it should be submitted to the 
 jury ; and if neglected, a new trial will not be granted. U. S. v. Gibert, 2 Sumner, 19. 
 Where property was obtained by false pretences, and the defendant failed to show at' the 
 trial what he had done with it, or with the proceeds, it is not sufficient to authorize a new 
 trial that be is now desirous to prove that fact, and expects that it would influence the jury 
 in his favor. Com. v. Benish, Thacher's Crim. Cas. 684. 
 
 69 
 
178—27 NEW TRIAL IN CRIMINAL CASES. 
 
 In New York, in the case of People v. Vermilyea. (1 Cow. 369,) it was held that a new 
 trial will not be granted, on motion of a defendant convicted in a criminal case, on the ground 
 that a co-defendant tried at the same time, and acquitted, was a material witness for the 
 convicted defendant, such testimony not being newly discovered; though the acquitted 
 defendant was then, for the first time, a competent witness. Savage, C. J. in giving the 
 opinion of the supreme court said : — "He became a competent witness in virtue of his ac-. 
 quittal; but the absence of all authority on the point is a strong argument against the 
 sufficiency of this ground for granting a new trial. Such a rule would be highly inconvenient 
 in practice. The proper course was, if the testimony against Davis was slight, to have the 
 jury pass on his case, and then introduce him as a witness on behalf of this co-defendant. 
 Such testimony is not newly discovered, though the acquitted defendant is now, for the first 
 time competent as a witness. This ground, of itself, cannot be considered sufficient, though 
 I will not say that, among other considerations, it is not entitled to some weight." 
 
 But in Pennsylvania, in Com. v. Manson, (2 Ashmead, 30.) on an application for severance 
 in order to admit the Wife of one party as a witness for the other the former was acquitted, 
 but the latter convicted, and the wife of the former swore in an affidavit to a complete alibi 
 as to the latter, it was held that as she herself was not on the record, but was excluded 
 merely by policy of law on the joint trial, and as she had been made competent by the ver- 
 dict of the jury, a new trial would be granted. 
 
 "In deciding in favor of this application," said King, J., "we do not say, as is supposed, 
 that in any case where we have refused to granta separate trial, in order to let in the testi- 
 mony of an accomplice or co-defendant, we will set aside the verdict when such co-defendant 
 happens to be acquitted. Respectable authority has settled, that in no case, where two or 
 more persons are jointly charged with an offence, shall one be a witness for the other, 
 •whether jointly or separately tried, at least until the party offered as a witness was either 
 previously acquitted or convicted ; and even this last qualification to the general rule has 
 been doubted, and the position to the full extent contended for, that a party to the record 
 cannot, in any event be received as a witness for his associates in accusation. But the wife 
 of one of several defendants is no party to the record ; and her testimony in a case in which 
 her husband is on trial, is excluded for a different reason, viz., the peculiar civil relation 
 which she holds to him, and which, from a consideration of legal policy, disqualifies her as a 
 witness in a case directly affecting him." — ' Authorities equally respectable and unqualified, 
 have determined that, although in a joint charge, jointly tried against ber husband and others, 
 she cannot be heard; yet, if they are separately tried, she is a competent witness for the 
 other co-defendants ; and that, to give them the benefit of her testimony, separate trials will 
 be awarded them in" all cases, except that of a criminal conspiracy. We do not, therefore, in 
 saying that Margaret Manson is a competent witness for Joseph B. Strafford, in the only part 
 of the accusation against him, as to which he has not been relieved by the verdict, establish 
 any new precedent, or introduce any eccentric doctrine into the criminal law. Nor can this, 
 case ever be offered as authority to show that the rejection of a co-defendant, as a witness 
 for his associates, or the refusal to award suqh associate a separate trial, in order to intro- 
 duce the testimony of such co-defendant, will afford, in itself, ground for setting aside a ver- 
 dict, where the defendant offered as a witness, is afterwards acquitted, and he for whom he 
 has been offered as a witness, condemned. All we wish to be understood as deciding is, 
 that under the whole circumstances disclosed in this cause, a case has been made out, impe- 
 riously and solemnly calling on this court to exercise their judicial discretion in awarding a 
 new trial, in order that justice, according to law, may be fairly meted out to the accused." 
 
 But subsequently, in the same state, in Com, v. Chauncey, (2 Ashmead, 90,) on a motion for 
 a new trial on the ground "that the court refused to the defendants the benefit of several 
 trials, though they had severally pleaded ; whereby the defendant C, was deprived of the 
 testimony of A. and N, who having been acquitted of the charge, would have been compe- 
 tent and important witnesses for defendant ft," was refused ; a distinction being made between 
 a witness, not on record as defendant, excluded by the relations of the parties, and a witness . 
 on the record as defendant, excluded by the necessity of trial. Whart. Or. Law, p. 917. 
 
NEW TEIAL IN CRIMINAL CASES: 178—28 
 
 2. There must not have been a want of due diligence. 
 
 In Pennsylvania, where it appeared that the witness, on whose testimony was sought a 
 new trial, after a conviction of murder, was with the prisoner until a late hour of the evening 
 on which the murder was committed, was in court while the trial was progressing, and had 
 gone to a relative of the prisoner and told him what she was able to testify to ; it appearing 
 that due diligence had not been used by the defendant, the motion for a new trial was re- 
 fused. Com. v. WiUiams, 2 Ashm. 69. 
 
 In Tennessee, Gilbert, a slave, was found guilty of murder on circumstantial evidence, and 
 one of the circumstances adduced in proof against him was, that blood was seen on his 
 clothes on the day the murder was committed, and after it was committed. On a motion 
 for a new trial, he introduced his affidavit, in which he stated that he was surprised by the 
 introduction of this proof, and that the blood was thrown on his clothes by an opossum 
 which he had caught on that day. He also introduced the affidavit of a man who stated 
 that he had seen Gilbert, on that day, with the opossum hanging by his side. Held, that 
 this was a case of negligence and not of surprise, within the rule of the law; and that the 
 grounds laid down were not sufficient to authorize the granting a new trial. Gilbert v. State, 
 1 Humph. Rep. 524. 
 
 In New York, where the district attorney told the defendant that certain papers were in 
 the hands of C, who, being applied to, answered they were in the possession of the district 
 attorney, but the defendant did not explain the mistake and apply to the district attorney 
 again, a new trial was refused because of the want of due diligence. People v. Vermilyea, 7 
 Cow. Rep. 369. 
 
 Where, after a verdict of guilty on an indictment for murder, the prisoner made affidavit 
 that S. C. was a material witness for him in the prosecution ; that he was not summoned to 
 attend the trial, because the prisoner had not been informed that he knew anything relating 
 to the affair ; and that the prisoner considered that his testimony would have an important 
 effect on a subsequent trial of the cause, but no allegation was made of diligence ; it was held 
 that that the new trial was properly refused. Bennett v. Com., 8 Leigh, 745. 
 
 On the trial of an indictment for obtaining goods by false pretences, a book was produced 
 in evidence, in which the representations made by the defendant, at the time of procuring 
 the goods, were recorded ; and after conviction, the counsel for. the defence moved for a new 
 trial, because, since the trial, it had been discovered, upon the examination of the book, that 
 the entry made therein of such representations by the prosecutor, and sworn to by him as 
 having been entered at the time they were made, was in fact entered many weeks after the 
 making of such representations; the new trial was refused principally on the reasoning that 
 it was in the power of the defendant at the trial, by due diligence to have discovered the 
 alleged error. Com. v. Benesh, Thaeker's Cr. Ca. 84. 
 
 Where the defendant was convicted of horse stealing, and a new trial moved for on sev- 
 eral grounds, among others, that since the trial, new evidence had been discovered, which, 
 if produced, would have established the prisoner innocence, but no proof of diligence was 
 made ; the judges unanimously refused a new trial. Wharf. Cr. L. 911, citing State v. Hard- 
 ing, (2 Bay, 267.) The court, in this case, very properly remarked, that "the discovery of 
 new evidence, after trial, was not a good ground for a new trial, because, on a sufficient affi- 
 davit of the absence of witnesses in criminal, as well as in civil cases, the court will always 
 postpone the trial in order to give the prisoner an opportunity to procure their attendance, and 
 be better prepared at the next court; and that it might have a very mischievous tendency, 
 to establish a precedent of this kind, after a trial and conviction, and after all the evidence 
 on the part of the state had been fully disclosed ; as it was easy to foresee, that a man whose 
 life was in danger, would in every case, even to gain time, make use of a pretext of- this 
 kind to create delay; but more especially by the assistance of confederates, he might be en- 
 abled to procure unprincipled men to be witnesses, to contradict the evidence on the part of 
 the state, and thereby defeat the ends of justice." 
 
 On an indictment for larceny, the mere affidavit of a third person, that the prosecutor had 
 declared that there was in existence a bill of sale of the property chargod to have been sto- 
 
^78 29 NEW TRIAL IN CRIMINAL CASES. 
 
 len, tending to establish title in the prisoner, is not sufficient ground for a new trial, without 
 the affidavit of the prisoner, alleging sufficient reason why the bill of sale was not produced 
 on the trial, and an expectation that it would be procured at a subsequent trial. Friar v. 
 The State, 7 How. Miss. Rep. 365. 
 
 The voluntary withdrawal, during the trial, of a witness who has been subpoenaed on be- 
 half of the state, but not examined, is not sufficient ground to grant a new trial, especially 
 where his testimony is not shown to be material for the defendant. The State v. Blennerhas- 
 sett, Walker's Rep. 7. 
 
 3. It must be such as would probably produce a different verdict. 
 
 After the verdict, when the motion for a new trial is considered, the court must judge not 
 only of the competency, but of the effect of evidence. If, with the newly discovered evi- 
 dence before them, the jury ought not to come to the same conclusion, then a new trial may 
 be granted, otherwise they are bound to refuse the application. Com. v. Flomnagam, 7 Watts 
 & Serg. 423 ; Giles v. The State, 6 Geo. Rep. 216. It is a safer rule to require the affidavit of 
 the newly discovered witness to accompany the motion for a new trial. Warren v. State, 1 
 Green's Iowa Rep. 106. 
 
 4. It must be material to the issue, going to the merits, and not impeaching a former Witness. 
 
 In Massachusetts, after a conviction on an indictment for selling spirituous liquors, " with- 
 out being duly licensed as an innholder, or common victualler," a new trial will not be grant- 
 ed, for the purpose of allowing the defendant to give in evidence a license, which he had 
 omitted to produce, to sell fermented liquor, and thus raise a question, as to the mere form 
 of the indictment. Com. v. Churchill, 2 Met. Rep. 118. Per Wilde, J. " no purpose of 
 justice would be promoted by granting the motion ; nor does the motion come within any 
 rule by which the granting of new trials is regulated. The defendant has been convicted on 
 the merits, and makes no suggestion that the evidence against him was inadmissible, or that 
 he can control it by evidence since discovered by him. Where a conviction is manifestly 
 right, on the facts and the law applicable thereto, it would be a, preversioh of justice to 
 allow a defendant to avoid sentence by interposing a mere matter of form, of which he might 
 have availed himself at the proper time." See 1 Chitty's Cr. Law, 655, 657. 
 
 Where the object is to impeach a former witness, the general rule, is that a new trial will 
 not be granted. It is a rule in civil, as well as criminal actions that objections to witnesses 
 on the ground of interest or infamy, must be made at the trial ; and it is necessary that it 
 should be so established ; for otherwise there would be no termination to suits. Parties 
 knowing the facts which constitute objections, would conceal them until the trial was over, 
 for the very purpose of having two chances of success ; and it would seldom be known, 
 that they had concealed their knowledge. See Com. v. Waite, 5 Mass. 261 ; Com v. Green, 
 IT Mass. 215 ; Giles v. The State, 6 Geo. Rep. 2T.6. 
 
 11. Of the Motion foe New Trial. 
 
 Generally speaking, application for a new trial cannot be heard after a motion in arrest of 
 judgment. But there are cases in which, if it appears that manifest injustice will ensue from 
 a strict observance of the rule, the court will .waive the formality, and admit the defendant 
 to a re-hearing. And this indulgence will sometimes be granted, especially if it appear that 
 he was not acquainted with the cause that induces him thus to apply, until after he has 
 moved in arrest of judgment. Chitty's Cr. Law, vol. 1, p. 658, It is also to be observed, 
 that where the motion for a new trial has been duly made first, and afterwards an attempt 
 lias been made to arrest the judgment, the court will desire the latter to be first argued, be- 
 cause all the delay and vexation of a second trial will be saved, if the judgment be first 
 arrested. 6 Term Rep. 627. 
 
 When the application is made, all the defendants who have been convicted must be actually 
 present, unless a special ground be laid for dispensing with the general rule; (11 East, 307. 
 2 Stra. 968, 1227. Cas, K. 13. 29. 2 Barnard, 412. 1 Scss. Cas. 428. Bac. Abr. Trial, L. 
 
NEW TRIAL IN CRIMINAL CASES. 178—30 
 
 9. Tidd. 8th edit. 945. Com. Dig. Indictment, N. ;) because the conviction fixes so strong 
 an imputation of guilt upon them, that the court will be sure they have them in their power, 
 before they entertain the motion for a revision of the proceedings. Id. ibid. And, it seems, 
 the consent of the counsel for the prosecution cannot dispense with this practice. 2 Dow, 
 & Ry. 46. And it may also be urged, in support of this practice, that otherwise the party 
 most criminal might keep away, and take the opinion of the court, by putting forward one 
 of the defendants, whose guilt was less apparent or less atrocious ; or those not present might 
 abscond, on hearing that their application had not been attended with success. 11 East, 
 30?. But it should seem, with reference to the proceedings at the time when judgment is 
 given, that where a pecuniary penalty, or fine only, and not corporal punishment can be 
 awarded, a new trial might be moved for in the absence of the defendant, at least on the 
 clerk in court undertaking for his paying the fine, in case judgment should be given against 
 him. 1 Salk. 55, 6, 400. The court, if they see justice has not been done, may order the 
 matter for a rehearing, though not in the form which they use when a regular motion is 
 granted. 11 East, 309. 3 Burr. 1901. And where some of the defendants have been con- 
 victed, and others acquitted, a new trial may be granted as to the former, without impeach- 
 ing the verdict so far as it relates to the latter. 6 T. R. 638, 645. Tidd, 8th edit. 945. "Where 
 the defendant is in custody, he must apply to the court for a habeas corpus to bring him up, 
 in order to apply for a revision of the proceedings. 2 Burr. 931. 
 
 In the case of King v. Mawbry, (6 Term Rep. 638,) there was no question but that a de- 
 fendant in a criminal case, who had been acquitted, could not be tried a second time. The 
 only difficulty was, whether, as those acquitted could not be again tried, those who were 
 convicted could be relieved, however unjust the verdict. The attorney-general argued that 
 .they could not, because the verdict was an entire thing, and could not be set aside in part. 
 All the judges however, agreed that a new trial might be granted to those who were con- 
 victed, although the others could not be tried again. 
 
 In England, when anew trial is granted in favor of two defendants who have been con- 
 victed, while others have been acquitted, in order to prevent the revival of proceedings 
 against the latter, there are two methods which may be adopted, the first of which is to 
 alter the original venire, so as to make it embrace those only who have been convicted ; and 
 the other is, to make an entry on the record, that the verdict was improperly taken against 
 those who were convicted, and then to award a new trial, as far as they are concerned. 1 
 Chitty Cr. Law, 660 ; 6 Term Rep. 626. 
 
 Every count of an indictment contains a charge of a distinct offence, and it is upon the 
 principle of joinder of offences, that the joinder of counts is admitted. When therefore, a 
 party is acquitted of the charge in one count of the indictment, he is clear of that charge for- 
 ever. He can no more be brought in jeopardy upon that charge again, than if it were the 
 only count in the indictment. 
 
 "When there has been an acquittal on one count and a conviction on another, a new trial 
 can only be granted on the count on which there has been a conviction ; and it is error, on 
 a second trial, to put the defendant on trial on the former. Campbell v. State, 9 Terger, 33. 
 But where one count includes a greater and less charge and after acquittal of the greater 
 offence but conviction of the less, a new trial is obtained, the whole case is re-opened, and 
 the defendant exposed on the second trial to the double charge. State v. Morris, 1 Blackf. 
 31 ; Whart. Cr. Law, p. 925. 
 
 It seems that a defendant convicted on the merits, but not sentenced, on account of in 
 formality is liable to a second trial ; but if proceedings be regular, the case is different. 
 "Whart. Cr. Law, p. 925, citing Perns, v. Huffman, Addis. 140 ; State v. NorveU, 2 Terger, 
 24. 
 
178—31 JUDGMENT. 
 
 2. Motion in Arrest of Judgment.\jL] 
 
 A defendant may move in arrest of judgment, for all defects or mat- 
 ters of objection which are not cured by verdict. I shall now, there- 
 
 [2] A motion in arrest of judgment, is an application on the part of the defendant that no 
 judgment be rendered on a verdict against him. By " arrest of judgment," ia meant the 
 refusal of the court to enter a judgment for some cause apparent upon the record. The judg- 
 ment of the court being a conclusion of law from the facts upon the record must be collected 
 from the whole record. If therefore, the record itself shows no ground for judgment, it cannot 
 be rendered, even though verdict of guilty be found. State v. Alien, B. M. Charlt. Rep. 518. 
 
 By the various English statutes of amendments which extend from the reign of Edward 
 3d, to that of Anne, and the principles of which have been generally adopted in this country, 
 this evil has been remedied. Now, no judgment can be arrested for a mere formal defect, 
 nor for any substantial defect, enumerated in, and specially cured by, some or other of these 
 statutes. In general, substantial defects are not cured by any of these statutory provisions ; 
 but some of them are cured by verdict or otherwise, upon common law principles, without 
 the aid of any statute. Bouvier's Institutes, vol. 3, p. 516. 
 
 The causes on which this motion may be grounded, although numerous, are confined to 
 objections which arise upon the face of the record itself, and which make the proceedings ap- 
 parently erroneous ; and, therefore, no defect in evidence, or improper conduct on the trial, 
 can be urged in this stage of the proceedings. 4 Burr. 2287. 1 Lord Baym. 231. 1 Salk. 
 77, 315. 1 Sid. 65. Com. Dig. Indictment, N. Thus, it is no ground of arrest of judgment, 
 that the sheriff, by whom the panel was returned, is the prosecutor, however strong a reason 
 it would have been of challenge. 1 Leach, 101. But any want of sufficient certainty in 
 the indictment, respecting the time, place, or offence which is material to support the charge, 
 as well as the circumstance of no offence being charged, will cause the judgment to be ar- 
 rested. 4 Bla. Com. 315. 3 Burr. 1901. 1 East, 146. And it is to be observed, that none 
 of the statutes of joefails, or amendments, extend to criminal proceedings ; and, therefore, 
 essential defects in the indictment are not, as in civil cases, _aided by verdict. 4 Bla. Com. 
 272. Stark. 252, 3, 4, 5, cont. So that though it was formerly thought that this motion 
 would not be regarded in case of conspiracy, but the party would be left to his writ of error, 
 (1 Saund. 301, 2,) it is now settled, that this idea is entirely destitute of foundation. Hawk, 
 b. 2, c. 48, s. 1, n. e. 1 Saund. 301, 2, u (1.) Nor is the ground of arresting the judgment 
 confined to the indictment alone, it may be found in any part of the record, which imports 
 that the proceedings were inconsistent or repugnant, and would make the sentence appear 
 irregular to future ages. Thus, the omission in the caption of the indictment, of the words, 
 "then and there," in the statement of the swearing to the jury, was formerly held, fatal; 
 because, without them, it did not appear that the oath was taken in the county where the 
 offence is alleged to have been committed, but the law is now otherwise ; (2 Stra. 901. Com. 
 Dig. Judgment, N. ; and see 2 Taylor, 93;) and it will be no ground for arresting the judg- 
 ment, after special verdict removed by certiorari, that the judge who tried the prisoner is not 
 stated to have been of the quorum, that no issue appears on the record. 
 
 See Horsey v. State, 3 Harr. & Johns. 2 ; State v. Allen, B. M. Charlton, 518 ; Common- 
 wealth v. Walts, 4 Leigh, 672. 
 
 Massachusetts. — If a criminal has been arraigned for a capital offence before a single 
 justice, he may move this in arrest of judgment after conviction. 2 Mass. 303. 
 
 North Carolina. — Judgment was arrested when it appeared that the case had been tried 
 by thirteen jurors. Whitehwst v. Davis, 2 Hayw. 113. See State v. Fort, 1 Car. Law. Eep. 
 510; Commonwealth v. Chancey, 2 Ash. 91 ; Same v. Beckley, 2 Met. 330 ; Same v, Call, 21 
 Pick. 509; Same v. Tuck, 20 ib. 356; Dyer v. Commonwealth, 23 Pick. 402. 
 
 If no issue is joined between the state and the defendant, the judgment will be arrested. 
 State v. Fort, 1 Car. Law Repos. 510. 
 
 " There are several points in which an indictment is cured by verdict, and in which the 
 
MOTION IN ARREST OF JUDGMENT. 178—32 
 
 fore, enumerate the defects which are cured by verdict, and which of 
 course cannot be made the subject of a motion in arrest of judgment : 
 
 " errors which might have been taken advantage of at a previous stage, are not sufficient cause 
 to arrest judgment. Thus, while duplicity is fatal on motion to quash or demurrer, the better 
 opinion is, that it will not be ground for arrest; and the same position is undoubtedly good 
 when there has been a misjoinder of counts, but where the defendant has gone to trial with- 
 out a motion to quash, or an application for election. The practice also is, not to arrest judg- 
 ment on the ground of irregularities in the summoning or the procedure of the grand jury; 
 and it is clear that if misnomer of the defendant be not met by plea in abatement, it is too 
 late for further objection after trial." Wharton's Cr. Law, p. 863, citing Com. v. Tuck, 20 
 Pick. 356 ; State v. Johnson, 3 Hill S. 0. R. 1 ; Com. v. Gillespie, 1 Serg. & R. 416 ; Com. v. 
 Chauneey, 2 Ashmead, 90 ; Com. v. BecHey, 3 Met. 330. 
 
 A special verdict, finding the defendant guilty of the same facts as those charged in the 
 indictment, but not finding him guilty in the county where the offence was laid, cannot be 
 supported, and the defendant, must again be put on his trial. It is a very familiar principle 
 in the administration -of the criminal law, that all the circumstances essential to sustaining 
 the indictment, must be expressly found by the jury, and the court cannot supply a defect 
 in the finding of the jury, by indictment, or implication. 1 Obitty's Cr. Law, 644 ; Bac. Abr. 
 Verdict, D. In the ordinary case of a general verdict of guilty the jury, by the very terms of 
 their verdict, find the prisoner guilty of all the material allegations in their indictment. Not 
 so in a special verdict, for the very object of this departure from the usual form, is presumed 
 to be for the purpose of declaring the prisoner guilty of certain facts only, with a view of 
 submitting the question whether those facts authorize a general verdict of guilty to the judg- 
 ment of the court. In such a case, if the facts thus found do not include all the essential 
 elements of the offence charged upon the prisoner, he cannot be convicted. 
 
 In New York, it has been held, that though the indictment lay the time so long before an 
 indictment is found, that the crime appears to be barred by the statute of limitations, this 
 is no ground for arresting the judgment. 9 Cowen, 655. But in Georgia, when it appeared 
 on the face of an indictment, that the offence charged was barred by the statute of limita- 
 tions, and none of the exceptions in the statute to prevent its operation were alleged there- 
 in, judgment was arrested. iVLane v. State, 4 Geo. Rep. 335. 
 
 Where a prisoner was convicted of murder, it was held to be ground for arrest of judg- 
 ment that the writs of venire under which both grand and petit jurors were summoned, were 
 without seal. State v. Leazier, 2 Speers, 211. The fact that a jury when out, were under the 
 charge of an unsworn officer, is not technically ground for a motion in arrest of judgment, 
 although it may be for new trial, if Cann v. State, 9 Smedes & Marsh. Rep. 465. 
 
 Judgment was arrested where the indictment had been tried in a different district from 
 that directed by law, to which it had been transmitted, by mistake, on a new division of the 
 judicial districts ; but a new trial was ordered in the proper district, upon the same indict- 
 ment. The State v. Gondalocle, 1 Brevard, 47. 
 
 The defendant may move at any time in arrest of judgment, before the sentence is actually 
 pronounced upon him ; (5 T. R. 445 ; 2 Burr. 801 ; 2 Stra. 845J and even when the defend- 
 ant waives the motion, yet if the court upon a review of the whole case, are satisfied that he 
 has not been found guilty of any offence in law, they will of themselves arrest the judgment. 
 1 East, 146; 11 Harg. St. Tr. 299. But if the sentence is once pronounced, though before 
 the actual entry of the judgment, the court are not bound to attend at all to a motion of this 
 nature, even though a formal error should be discovered, sufficient to reverse the proceed- 
 ings, (3 Burr. 1901, 2, 3 ; Com. Dig. Indictment, N.) but the defendant is left to his writ of 
 error ; though, as we have seen, the court may, without any motion, arrest the judgment. 
 (1 East, 146,) and may alter their sentence any time during the same term. 6 East, 328 ; 
 1 M. & S. 442. It should seem that the court may, if they think fit, arrest the judgment, 
 notwithstanding it has been given. A motion in arrest of judgment, however, cannot ever 
 be entertained, after judgment against the defendant on demurrer. 2 Ld. Raym. 1221. In 
 this motion, as in that for a new trial, the defendant must be personally before the court, in 
 
178—33 JUDGMENT. 
 
 1. Every objection to an indictment for any formal defect apparent 
 on the face thereof, shall be taken by demurrer or motion to quash 
 such indictment, before the jury shall be sworn, and not afterwards ; 
 and every court before which any such objection shall be taken for any * 
 formal defect may, if it be thought necessary, cause the indictment to 
 be forthwith amended in such particular by "some officer of the court or 
 other person, and thereupon the trial shall proceed as if no such defect 
 had appeared. (a) 
 
 2. No judgment upon any indictment or information for any felony 
 or misdemeanor, whether after verdict or outlawry, or by confession, 
 default or otherwise, shall be stayed or reversed for want of the aver- 
 ment of any matter unnecessary to be proved,— or for the omission of 
 the words " as appears by the record," or the words " with force and arms," 
 or the words " against the peace," — nor for the insertion of the words 
 " against the form of the statute," instead of the words " against the form 
 of the statutes," or vice versa ; nor for that any person or persons men- 
 tioned in the indictment or information is or are designated by a name 
 of office or other descriptive appellation, instead of his, her, or their 
 proper name or names, — nor for omitting to state the time at which the 
 
 offence was committed, in any case where time is not of the 
 
 [*179] essence *of the offence ; nor for stating the time imperfectly ; 
 
 nor for stating the offence to have been committed on a day 
 
 (a) 14 & 15 Vict. 0. 100, s. 25. 
 
 order to procure it a hearing ; because there is the strongest presumption possible that he is 
 guilty. 2 Burr. 930, 1 ; 2 Stra, 844, 1227 ; 1 Bla. Rep. 209 ; 2 Barnard, 412 ; Com. Dig. tit. 
 Indictment, X. In indictment against several for a misdemeanor, a new trial cannot be 
 moved for, unless all be present. IB. &C. 329. But where the jury find a verdict, in which 
 they submit a question to the court though not professedly special, his presence wiH be dis- 
 pensed with on the argument, because he will be presumed to be innocent. 2 Stra. 1227 ; 
 5 Burr. 931. Nor is there any occasion for his presence,, to move for an inspection of the 
 venire, and other process. 1 Barnard, 147. And it should seem, that where the judgment 
 against the defendant could only be the payment of a fine, the court might dispense with 
 his personal appearance. 1 Salk. 55, 6, 400. If the defendant is in actual custody, he must 
 apply for a habeas corpus, to enable him, on being brought up, to make the motion. 2 Burr. 
 931. 
 
 The effect of allowing a motion in arrest of judgment, is to place the defendant in the 
 same situation in which he was before the indictment was found. 
 
 If from the evidence on the trial, there is reasonable ground to believe the defendant 
 guilty and a new indictment can be framed upon which he maybe convicted, the court may 
 order him to be re-committed to the officer of the proper county, or admitted to bail anew, to 
 answer the new indictment. If the evidence show him guilty of another offence, he must 
 be committed or held thereon ; and in neither case, is the verdict a bar to another prosecu- 
 tion or indictment for the same offence. But if no evidence appear, sufficient to charge him 
 with any offence, he must, if in custody, be discharged, or if admitted to bail, his bail is ex- 
 onerated or if money have been deposited instead of bail, it must be refunded to the defend- 
 ant • and the arrest of judgment operates as an acquittal of the charge upon which the in- 
 dictment was founded. 
 
MOTION IN ARREST OF JUDGMENT. 179 
 
 subsequent to the finding of the indictment or exhibiting the informa- 
 tion, or on an impossible day, or on a day that never happened ; — nor 
 for want of a proper or perfect venue, where the court shall appear by 
 the indictment or information to have had jurisdiction over the of- 
 fence.(a) And this extends to indictments for offences committed 
 abroad, as well as for offences committed in this country.(&) This lat- 
 ter provision as to venue, however, does not aid the omission of venue, 
 altogether,(c) or the laying of the venue in a wrong connty.(e£ ) 
 
 By stat. 14 & 15 Vict. c. 100, s. 24, no indictment shall be holden 
 insufficient for any of the defects above enumerated, or for want of a 
 proper or formal conclusion, or for want of or imperfection in the ad- 
 dition of any defendant, or for want of the statement of the value or 
 price of any matter or thing, or the amount of damage, injury or 
 spoil, in any case where the value or price, or the amount of damage, 
 injury or spoil is not of the essence of the offence. In what cases the 
 indictment may be amended, (e) 
 
 3. No judgment after verdict upon any indictment or information for 
 any felony or misdemeanor, shall be stayed or reversed for want of a 
 similiter ; — nor by reason that the jury process has been awarded to a 
 wrong officer Upon an insufficient suggestion ; — nor for any misnomer 
 or misdescription of the officer returning such process, or of any of the 
 jurors ; — nor because any person has served upon the jury who has not 
 been returned as a juror by the sheriff or other officer ; — and that where 
 the offence charged has been created by any statute or subject to a 
 greater degree of punishment by any statute, the indictment or infor- 
 mation shall after verdict be held sufficient, if it describe the offence in 
 the words of the statute.(g') 
 
 4. "We have seen(A) that where there are two or more counts, and 
 one bad, and a general verdict as to both, this is not the subject of a 
 motion in arrest of judgment : because the judgment may still be sev- 
 eral, though the verdict be general. And where the indictment con- 
 tained two counts for larceny, and a third count stating that the priso- 
 ner feloniously received and had the goods "so as aforesaid feloniously 
 stolen taken, and carried away," it was moved to arrest the judgment, 
 because the jury, by their verdict on the two first counts, had negatived 
 the larceny " as aforesaid :" but the judges held that the last count was 
 good, and the judgment ought not to be arrested ; — some of them hol- 
 ding that the words " so as aforesaid" might be rejected as sur- 
 plusage, and others that *supposing these words had the effect [*180] 
 
 (a) 1 G. 4, u. 64, s. 20. (e) See ante, pp. 99—101. 
 
 (6) Douglas v. The Queen, 11 Law J. Ill m. (g) Id. s. 21. See B. v. Martin et ux., Ad. 
 
 (c) B. v. 0' Connor et at, 13 Law J., 33 m., & El. 481. 
 
 5 Q. B., 16. (h) Ante, p. 176. 
 
 I B. v. Mitchel, 2 Q. B. 636. 
 
 70 
 
180 JUDGMENT. 
 
 of importing in the third count that the prisoner had stolen the goods, 
 that still the third count would be good. (a) 
 
 3. Judgmental] 
 
 If no motion be made in arrest of judgment, or if made and decided 
 against the defendant, the judge at the assizes, or the recorder or chair- 
 man at the sessions, proceeds to pass sentence. Sometimes this is done 
 immediately after each trial ; sometimes at the end of each day ; some- 
 times on some other day of the assizes or sessions. The first seems to 
 be the better method ; at least it is calculated to have a better and more 
 lasting effect upon the audience, in whose miuds the crime and its pun- 
 ishment are thus immediately connected, the latter following speedily 
 and certainly upon the former ; it is therefore always observed in the 
 case of treason and murder. [2] 
 
 (a) B. v. Graddock, 20 Law J. 21 m. 
 
 [1] Judgment, is the conclusion and sentence of the law, passed by the court, upon facts 
 found or admitted in the course of the criminal proceedings against a party. Burns' Just, 
 tit. Judgment. 
 
 "With respect to the form of the judgment it has been held that an entry in the following 
 words, "It is ordered, &c.," was not a judgment, but an order. Baker v. The State, 3 Ark, 
 Rep. 491. See also 1 Chitty's Cr. Law, p. 101. 
 
 A judgment, though pronounced or awarded by the judges, is not their determination and 
 sentence, but the sentence and determination of the law, which depends, not upon the 
 arbitrary opinion of the judge, but the settled and invariable principles of justice, and is the 
 remedy prescribed by law for the redress of injuries ; and the suit or action is the vehicle or 
 means of administering it ; and, therefore, the style of the judgment is not " That it is ordered 
 or resolved by the court," for then the judgment might be their own ; l; It is considered " — 
 " Oonsideratum est per Cwiam," which implies that the judgment is none of their own, but 
 the act of the law, pronounced and declared by the court, upon determination and inquiry. 
 
 The judge usually precedes the judgment by an address to the prisoner, especially if his 
 crime be capital, in which he states that he has been convicted on satisfactory evidence, and 
 informs him when there is little hope that mercy will be extended to him. Sometimes also 
 he takes an opportunity of impressing the circumstances of the prisoner's guilt on the minds 
 of the spectators, and traces out the remote but important causes which have led him to his 
 unhappy condition. 1 Gisb. Duties of Man, 405. Even in case of an acquittal, he may often 
 usefelly warn the defendant against the circumstances which might again place him in an 
 equivocal situation, especially if there seems reasonable ground to suppose him guilty. Id. 
 406. 
 
 [2] "When any corporal punishment is to be inflicted on the defendant, it is absolutely ne- 
 cessary, unless some statute has otherwise directed, that he should be personally before the 
 court at the time of pronouncing the sentence. 1 Ld. Raym. 261. 12 "Wend. 344. But 
 where the defendant is found guilty, and the court pronounce judgment that he pay ajflne 
 and stand committed until it be paid, the imprisonment is no part of the punishment, but only 
 a mode of enforcing payment of the fine, and it is not necessary that the defendant should 
 be present. 12 Wend. 344. 1 Va. Cas. 172. 
 
 The judgment or sentence of the court is usually given soon after the conviction — at least 
 during the same term of the court at which the prisoner is convicted; unless the rendering 
 of judgment is stayed by the filing of a bill of exceptions for the purpose of taking the opin- 
 ion of the supremo court upon the case. See 1 Chit. Cr. L. 699. 2 R. S. 136. 
 
JUDGMENT. 180 — 1 
 
 Where sentence of death is to be passed, the crier previously makes 
 proclamation thus : " All manner of persons, keep silence whilst sen- 
 tence of death is passed upon the prisoner at the bar, upon pain of im- 
 prisonment."^] In capital cases, also, whether sentence is to be pas- 
 sed, or only recorded, the clerk of arraigns at the assizes asks the priso- 
 ner — " A. B., have you anything to say why sentence of death should 
 not be passed [or recorded] against you ;" upon which the prisoner may 
 move in arrest of judgment, if that have not been already done, or he 
 may address any other observations to the judge which he may think 
 proper. [4] In other cases, when sentence is about to be passed, the 
 defendant may address the court in mitigation of punishment, as well 
 as in arrest of judgment, whether he was tried and convicted or pleaded 
 guilty ; counsel however are not permitted to address the court, either 
 in mitigation or aggravation of punishment, but the court will receive 
 affidavits on either side, where the defendant pleads guilty, and there 
 are no depositions.(a) At sessions, indeed, where a prisoner has pleaded 
 guilty, the court, when they are about to sentence him, frequently call 
 upon the counsel for the prosecution to state the nature of the case 
 
 (a) See B. v. Gregory, 1 Car. & K. 228. 
 
 Judgment is rendered by the court, in which the defendant w as convicted ; except in cases 
 where the indictment is removed into the supreme court, by certiorari, before judgment, as 
 provided by statute. In such cases, if the supreme court decides against the exceptions taken, 
 it must either proceed to render judgment and pronounce sentence against the defendant, or 
 must remit the proceedings to the court in which the trial was had, with directions to pro- 
 ceed and render judgment. 2 E. S. 1H, § 25. 
 
 In New Jersey, the court of -oyer and terminer may give judgment on a conviction had at 
 a previous term. State v. Guild, 5 Halsted, 163. 
 
 [3] But it is not necessary that this form should appear on the record, and its omission will 
 not be material. 1 Ld. Eaym. 1469. 
 
 [4] Before judgment is pronounced upon the defendant it is indispensably necessary that 
 he should be asked by the clerk or court if he has any thing to say why judgment should 
 not be pronounced on him ; (1 Chit. Or. L. 100 ;) and it is material that this appear upon the 
 record to have been done; and its omission, after judgment in high treason, will be a suf- 
 ficient ground for the reversal of the attainder. 3 Salk. 358. Comb. 144. 3 Mod. 265. On 
 this occasion he may allege any ground in arrest of judgment; (which we shall notice present- 
 ly;) or may plead a pardon if he has obtained one, for it will have the same consequence 
 which it would have produced before conviction, by stopping the attainder. 4 Black. Com. 
 316. If he has nothing to urge in bar, he frequently addresses the court in mitigation of his 
 conduct, aud desires their intercession with the pardoning power, or casts himself upon their 
 mercy. After this, nothing more is done, but the proper judge pronounces sentence. This 
 may be safely done in general terms, though apart of the indictment is defective, or the con- 
 duct charged in part is no legal offence, though the residue is sufficient ; because the court 
 will make the punishment proportioned to so much of the charge as is proved by the evi- 
 dence. 1 Chit. Or. L. TOO. 2 Burr. 984. 
 
 A joint sentence may be, and frequently is passed, on several offenders convicted of similar, 
 offences. Id. ib. 6 Harg. St. Tr. 833. 
 
180 2 JUDGMENT. 
 
 against him ; this, however, is not done at , the assizes, but the judge 
 collects the facts of the case from the depositions. [5] 
 
 [5] Where a prisoner, convicted at the sessions, is brought into the supreme court for 
 judgment, that court will give no other judgment than might have been pronounced by the 
 court below. 1 Caines, 37. 
 
 Where there is no judgment of imprisonment the judgment is that the defendant pay the 
 fine assessed upon him, and the costs of the prosecution. Should he be in court at the time 
 of pronouncing judgment, an order may be entered for his imprisonment until he shall pay 
 the fine and costs, or be otherwise discharged. But if he be not in court, process may be 
 awarded for the recovery thereof. There is a right to proceed by execution for the fine and 
 costs, against the property of the defendant, or against the body, as upon judgments in civil 
 cases. 8 Wend. 204. 
 
 In an indictment against two or more, it is ^generally true that the charge is several as well 
 as joint; so that if one is found guily, judgment may be rendered against him, although one 
 or more may be acquitted. To this rule there are exceptions, as in cases of conspiracy, or 
 riot, to which the agency of two or more is essential. But violations, of the license law, not 
 being within the reason of these exceptions, come under the general rule. Gomm. v. Griffin, 
 3 Gush. 523. 
 
 It is not necessary, in recording sentence, to refer to the statute which gives the punish- 
 ment. Murray v. The Queen, 14 Law J. 351 ; 9 Jur. 596. 
 
 The judgment, on a verdict of guilty, must not be dependent on any contingency, nor 
 subject to any future decision, but must be final and certain. Morris v. State, 1 Blackf. 37. 
 
 Upon an indictment against eight persons, for an unlawful assembly, five appeared and 
 pleaded not guilty, and two of these five were found guilty and three not guilty. It was held 
 that the judgment should be entered against the two found guilty, but that they must have 
 been discharged had all the others indicted been tried and acquitted. State v. Bailey,. 2 
 Blackf. 151. " 
 
 A judgment acquitting several defendants charged with committing an offence jointly, will 
 not bar a several prosecution against them. Gomm. v. MeCord, 2 Dana, 242. 
 
 Where a party convicted of an offence is subject to two distinct and independent punish- 
 ments, it cannot be alleged for error, by the defendant, that one only of the punishments to 
 which he was liable is adjudged against him. The prosecutor may complain of such omis- 
 sion, but not the party convicted. 8 Wend. 203. 
 
 Every court before which any person is convicted of any offence not punishable with 
 death or imprisonment in the state prison, has power, in addition to such sentence as may 
 be authorized or prescribed by law, to require the defendant to give security to keep the 
 peace, &c, for any term not over two years, or to stand committed until such security is 
 given. But this does not extend to libels. 2 R. S. 737, § 1. 
 
 The same rule prevails in England. Thus, where an indictment for perjury had been re- 
 moved into the queen's bench by certiorari, and the defendant convicted and sentenced by 
 the court to be imprisoned for eighteen calendar months, and to give security to keep the 
 peace and be of good behavior for two years, to commence from the expiration of the eigh- 
 teen months, and to be further imprisoned until such security was given, it was held by the ■ 
 exchequer chamber, on error, that the court might, as a part of the sentence, require such 
 sureties. Queen v. Dunn, 12 Ad. & El. N. S. 1026. 
 
 Proceedings subsequent to Judgment, in the State of New York. 
 
 The Revised Statutes of New York, provide as follows : — Whenever a defendant who 
 shall have been acquitted or convicted upon any indictment, shall require the district attor- 
 ney to make up a record of the judgment, it shall be his duty to do so, on being paid his 
 legal fees ; and if he shall neglect for ten days after being so required, to make up such re- 
 cord, the defendant may himself cause the same to be made up, signed and filed. Id. 738, 
 
JUDGMENT. 180—3 
 
 Where an offence, committed in a county of a city or of a town, is 
 tried at the assizes, the court may order the judgment to be executed, 
 
 A court of oyer and terminer after quashing an indictment may, at a subsequent term, 
 give leave to the public prosecutor to make up a record as if judgment had been rendered 
 for the defendant on demurrer, for the purpose of enabling him to sue out a writ of error • 
 and should such leave be refused, the supreme court will award a mandamus. 9 Wend. 
 182. 
 
 Whenever a judgment upon conviction shall be rendered in any court, it is the duty of the 
 clerk to enter such judgment fully in his minutes, stating briefly the offence for which the 
 conviction was had ; and the court shall inspect such entries and conform them to the facts. 
 2 E. S. 138, § 5. 
 
 It shall be the duty of the district attorney, on being requested by the clerk, to prepare 
 for him a statement of the offence of which any person shall be convicted, as the same is 
 charged in the indictment, to be entered in the minutes of such clerk ; but the court shall 
 inspect the same and conform it to the indictment. Id. ib. § 6. Within ten days after the 
 adjournment of any court at which any convictions for offences shall have been had, the 
 clerk therefore shall make out and certify a transcript of the entries in his minutes, of all 
 such convictions and the sentences thereon ; and shall transmit the same to the secretary of 
 state, under a penalty of $50. Id. ib. § 7. This transcript or statement shall contain such 
 a description of the offence committed, abridged from the indictment, as would be sufficient 
 to maintain the averments relating to such offence, necessary to be made in an indictment 
 against the same person for a second offence ; and if a defective transcript of any criminal 
 conviction shall be transmitted to the secretary of state, it shall be his duty to require a 
 correct transcript from such clerk ; and in case of his refusal or neglect to furnish the same 
 within a reasonable time after being so required, he shall be liable to a penalty of $50. 
 Laws of 1839, p. 234. If the district attorney shall neglect or refuse to prepare for any clerk 
 of a criminal court, such a statement, within a reasonable time after being required by such 
 clerk, he shall forfeit $50 to the use of the people of this state, for each statement so neglect- 
 ed to be furnished; and every such neglect shall be immediately reported by such clerk to 
 the secretary of state. Id. 235, § 2. 
 
 It is the duty of the secretary of state to file such transcripts, and whenever re- 
 quired by the attorney-general, or district attorney of any county, he is bound to fur- 
 nish an exemplification thereof, under the seal of his office ; which exemplification is de- 
 clared to be sufficient evidence on the trial of any person for a second or subsequent offence, 
 of the conviction stated in such transcript. 2 R. S. 738, § 8. Uut neither such transcript 
 nor the exemplification thereof are, in any other case, evidence of such conviction. Id. 
 739, § 9. 
 
 A copy of the minutes of any conviction, with the sentence of the court thereon, entered 
 by the clerk of any court, duly certified by the clerk in whose custody such minutes shall 
 be, under his official seal, together with a copy of the indictment, certified in the same man- 
 ner, is made evidence of such conviction, in all cases in which it shall appear by the certifi- 
 cate of the clerk, or otherwise, that no record of the judgment on such conviction has been 
 signed and filed. Ibid. § 10. 
 
 Upon conviction for a crime punishable with death, it is the duty of the presiding judge 
 of the court at which the conviction took place, to transmit immediately to the governor, by 
 mail, a statement of the conviction and sentence, with the notes of testimony taken by him 
 upon the trial. Ib. 658, § 13. Amended by laws of 1847, p. 437, § 1. 
 
 The governor is authorized to require the opinion of the judges of the court of appeals, 
 justices of the supreme court, and of the attorney-general, or of any one of them, upon any 
 statement so furnished. Id. 514; Laws of 1847, p. 437, § 2. 
 
 A transcript of the entry of the conviction in, the minutes of the court and of the sentence 
 thereupon, certified by the clerk, or a certified copy of the sentence, if the prisoner was sen- 
 tenced to imprisonment in a state prison, is a sufficient authority to the sheriff to execute 
 
180 & JUDGMENT. 
 
 either in the same county, or in the county of the city or town in which 
 the offence was committed.(a) 
 
 (a) Sentence of death. 
 The principal offences now punishable with death, are, treason, 
 
 (a) 51 G. 3, o. 100, s. 1 ; 14 & 15 Vict 55, s. 23. 
 
 the sentence. Id. 739, §§ 11, 12. Such sheriff or deputy, while conveying a convict to the 
 proper person, has the same power and the like authority to require the assistance of any 
 person, in securing such convict, and retaking him if he escapes, as if the sheriff were in the 
 county for which he was elected. And all persons refusing or neglecting to assist such she- 
 riff, when required, are liable to the same penalties as if such sheriff were in his own county. 
 2 R. S. 139, § 13. 
 
 "Whenever any convict is sentenced to the punishment of death, the court, or a major part 
 thereof, of whom the presiding judge must always be one, must make out, sign, and deliver 
 to the sheriff of the county a warrant, stating such conviction and sentence, and appointing 
 the day on which the sentence is to be executed. Such day must not be less than four 
 weeks, and not more than eight weeks from the time of the sentence. Id. 657, §§ 11, 12- 
 Whenever, for any reason, any convict sentenced to the punishment of death, shall not have 
 been executed pursuant to. such sentence, and the same stands in full force, the supreme 
 court, on the application of the attorney-general or of the district attorney, may issue a writ 
 of habeas corpus to bring such convict Before the court, or if he is at large, a warrant for his 
 apprehension may be issued by the court, or any justice thereof. On such convict being 
 brought before the court, it must proceed to inquire into the facts and circumstances ; and 
 if no legal reasons exists against the execution of the sentence, it is made the duty of the 
 court to sign a warrant to the sheriff, commanding him to do execution of the sentence, at 
 such time as shall be appointed therein ; which must be obeyed by the sheriff. Id. 659, §§ 
 23, 24. It has been decided where the execution of the sentence of the defendant is respi- 
 ted by the governor for the purpose of having the conviction reviewed by the supreme court, 
 it is the duty of the sheriff to execute the sentence of the court on the day to which the 
 execution is respited, unless the judgment be reversed or annulled, or a further respite be 
 granted. And it is not necessary in such a case that the defendant be previously brought 
 into court by habeas corpus. The People v. Enoch, 18 Wend. 159. 
 
 The method of inflicting the punishment of death is pointed out in the revised statutes. 
 2 R. S. 748, 3d. ed. §§ 25 to 28. 
 
 If, after a convict has been sentenced to the punishment of death, he becomes insane, the 
 sheriff, with the concurrence of a justice of the supreme court, or if he is absent from the 
 county, with the concurrence of the county judge, may summon a jury to inquire into such 
 insanity, and must give immediate notice to the district attorney of the county. Laws of 
 1847, p. 437, § 3 ; 2 R. S. 658, § 16. It is the duty of the district attorney to attend such 
 inquiry, and he may produce witnesses before the jury. If it is found by the inquisition of 
 the jury that the prisoner is insane, the sheriff must suspend execution of the sentence until 
 he shall receive a warrant from the governor, or from the justices of the supreme court, di- 
 recting the execution of the convict. 2 R. S. 658, §§ 17, 18. 
 
 If a female, sentenced to death, is pregnant, the sheriff is to summon a jury to try the 
 question of pregnancy ; and if it appears by the inquisition that she is quick with child, the 
 sheriff must suspend the execution of her sentence, until he shall receive from the governor 
 a warrant, appointing a day for her execution pursuant to her sentence. 2 R. S. 658, §§ 20, 
 21,22. 
 
 No judge, court, or officer, other than the governor, has any authority to reprieve or sus- 
 pend the execution of any convict sentenced to the punishment of death; except sheriffs in 
 the cases above specified. Ibid, § 15. 
 
SENTENCE OP DEATH. 181 
 
 murder, and unnatural offences. In *treason the sentence [*181] 
 is, that the prisoner shall be drawn on a hurdle to the place of 
 execution, and there hanged by the neck until he be dead, and that 
 afterwards his head shall be severed from his body, and his body di- 
 vided into four quarters, shall be disposed of as Her Majesty shall think 
 fit.(a) But after sentence pronounced, Her Majesty, by warrant under 
 her sign manual, countersigned by a secretary of state, may direct that 
 the prisoner, instead of being drawn on a hurdle, shall be conveyed to 
 the place of execution in such manner as is therein mentioned, and in- 
 stead, of being hanged, shall be beheaded, and may direct how his head 
 and quarters shall be disposed of.(6) A woman for treason was for- 
 merly burnt ;(c) but now, she is to be drawn to the place of execution, 
 and there hanged by the neck until she be dead.(d)[lj 
 
 (a) 54 a. 3, o. 146, s. 1. (c) 2 Hawk. o. 48, s. 6. 
 
 (6) Id. s. 2. (d) 30 a. 3, c. 48. 
 
 [1] In Englnd, the judgment in case of high treason was, until very lately, an exception to 
 the merciful tenor of our judgments. The least offensive form which is given in the books 
 is, that the offender " be carried back to the place from whence he came, and from thence 
 to be drawn to the place of execution, and be there hanged by the neck, and cut down alive, 
 and that his entrails be taken out and burned before his face, and his head cut off, and his 
 body divided into four quarters, and his head and quarters disposed of at the king's pleasure." 
 2 Hale, 396, 1. Hawk. b. 2, c. 48, s. 3. See form, 3 Inst. 210, 211. 1 Hale, 350, 1. 2 
 Hale, 39T. Plowd. 381. Co. Ent. 661. 3 Harg. St. Tr. 214, 290, 314, 340, 409. Eost. 112. 
 "Williams, J. Judgment. 4 Bla. Com. 92. Some of the precedents add other circumstances, 
 of still more grossness and aggravation. 3 Harg. St. Tr. 340, 409. Comb. 215. But this 
 horrible denunciation was very seldom executed in its more terrible niceties. The king 
 always might pardon every part of it, except beheading, where that was included, and 
 frequently exercised that prerogative. 1 Hale, 351. 4 Bla. Com. 92, 3. And the criminal 
 'Was almost always deprived of life, by means of strangulation, before the executioner pro- 
 ceeded to mutilate his body. At length this dreadful sentence, which had disgraced our laws, 
 though not our practice, from the earliest periods, was modified and its most offensive parts 
 taken away. By the 54 Geo. 3, c. 146, the judgment in future to be passed upon offenders 
 convicted of high treason, is fixed, " that they be drawn on a hurdle to the place of execu- 
 tion, and be there hanged by the neck until they be dead ; and that afterwards their heads 
 shall be severed from their bodies, and the body divided into four quarters, shall be disposed 
 of as shall seem fit to his majesty." By the same statute, the king is empowered to change 
 the whole of the sentence into beheading, by a warrant under the sign manual. 
 
 Treasons relating to the coin, were never subject to the severities with which those affect- 
 ing the government were formerly attended. 1 Hale, 351. 4 Bla. Com. 93. In case of men, 
 the judgment was merely to be drawn and hanged, for this was the rule of common law, and 
 has not been altered by any subsequent statute. 1 Hale, 351. 2 Hale, 398. 4 Bla. Com. 
 93. Hawk. b. 2, c. 48, s. 4. The sentence is, "that the defendant be drawn to the place of 
 execution, and there be hanged until he shall be dead." 1 Hale, 351. See form, 1 Hale, 
 351. Some doubt indeed formerly prevailed respecting clipping, and other offences, made 
 treason by statute; because it is a general rule, that where an act of parliament makes an 
 offence treason or felony, it annexes to it at the same time, all the consequences wbioh, at 
 common law, belong to offences of the same description ; (3 Inst. 11. 1 Halo, 362, 3. 2 
 Hale 398, 9. Hawk. b. 2, c. 48, s. 4 ;) but as other treasons of the same kind were always 
 visited with a milder punishment, the more merciful opinion has prevailed, and the present 
 
181—1 JUDGMENT. 
 
 The punishment of principals and accessories before the fact in mur- 
 
 form of judgment issued in every case of the kind, however created. 2 Dyer, 230, b. 3 Keb. 
 278. 2 Leon. 98. Sir T. Jones, 233. Sir T. Raym. 234. 1 Tent. 254. Hawk. b. 2, o. 48, 
 s. 4. "Williams, J. Judgment. But women were both in this and high treason to be burned ; 
 which cruel sentence was, like the other, commonly evaded. The humanity of modern times 
 has also removed this barbarism ; for by the 30 Geo. 2, c. 48, women convicted of any species 
 of treason, are to receive judgment to be drawn and hanged, without any further indignity 
 or outrage. 
 
 Massachusetts. — Treason against this Commonwealth shall consist only in levying war 
 against the same, or in adhering to the enemies thereof, giving them aid and comfort. 
 
 Every person, who shall commit the crime of treason against this Commonwealth, shall 
 suffer the punishment of death for the same. Rev. Sts. Mass. 115, s. 1, 2. 
 
 Maine. — "Whoever shall be guilty of treason, by levying war against the state, adhering 
 to its enemies, giving them aid and comfort, shall be punished with death. Rev. Sts. of Me. 
 ch. 153, sec. 1. 
 
 New Tore:. — The revised statutes of New York (pt. 4, ch. 1, tit. 1, sec 1,) provide that the 
 following offences shall be punished with death: 
 
 1. Of treason against the people of the state. 
 
 2. Of murder. 
 
 3. Of arson in the first degree. 
 
 Mississippi. — In Mississippi, the statute is precisely the same as in New Tork. Hutch. 
 Miss. Code, p. 954. 
 
 New Jersey. — Treason and misprison of treason, are punished with death in New Jersey, 
 Rev. Sts. of N. J. tit. 8, ch. 1. 
 
 Pennsylvania. — In Pennsylvania, the punishment for high treason is confinement at labor, 
 for the first offence for a period of not less than three nor more than six years ; for the second 
 offence, for a period not exceeding ten years. Dunlop's Laws of Penn. p. 487. 
 
 Maryland. — On conviction for treason the judgment shall be to suffer, death by hanging 
 only, and the circumstances of cruelty in the judgment by the law of England, shall be omitted. 
 Dorsey's Laws of Maryland, vol. 1, p. 181. Certain crimes declared to amount to treason, 
 and persons guilty thereof to suffer duath and forfeit their estates. lb. 136. 
 
 Georgia. — In Georgia, treason in the first degree, is punished with death. Treason in 
 the second degree, (which consists in the knowledge and concealment of treason, without 
 otherwise assenting or participating in the same) is punished by confinement and hard labor r 
 in the penitentiary for the term of four years. Hotchkiss' Stat. Law of Geo. p. 704. 
 
 Michigan. — In Michigan, treason is punished with death, and misprison of treason, by 
 fine not exceeding one thousand dollars, or by imprisonment in the state prison, not more 
 than five years, or in the county jail, not more than two years. Rev. Sts. of Mich. ch. 152, 
 sees. 1, 2. 
 
 Virginia. — Treason shall consist only in levying war against the state, or adhering to its 
 enemies, giving them aid and comfort, or establishing, without authority of the legislature, 
 any government within its limits, separate from the existing government, or holding or exe- 
 cuting, in such usurped government, any office, or professing allegiance or fidelity to it, or 
 resisting the execution of the laws, under color of its authority; and such treason, if proved 
 by the testimony of two witnesses to the same overt act, or by confession in court, shall be 
 punished with death. 
 
 If a free person, knowing of any such treason, shall not, as soon as may be, give informa- 
 tion thereof to the governor, or some conservator of the peace, he shall be punished by fine 
 not exceeding one thousand dollars, or by confinement in the penitentiary not less than three 
 nor more than five years. 
 
 If a free person attempt to establish any such usurped government, and commit any overt 
 act therefor, or, by writing or speaking, endeavor to instigate others to establish such govern- 
 ment, he shall be confined in jail not exceeding twelve months, and fined not exceeding one 
 thousand dollars. 
 
SENTENCE OF DEATH. 181 2 
 
 der, is death.(a)[2] Formerly the prisoner must have been executed 
 on the day but one after the passing of the sentence ; and after being 
 hanged, his body was to be dissected or hung in chains.(&) But by 
 stat. 2 & 3' "WV4, c. 75, the body was no longer to be dissected, but the 
 judge, by his sentence might direct either that it should be hung in 
 chains, or buried within the precincts of the prison.. It was again al- 
 tered by stat. 4 & 5 W. 4, c. 26, s. 1, which repeals so much of these 
 Acts as relates to the hanging in chains. And now, by stat. 6 & 7 W. 
 4. c. 30, s. 2, sentence of death shall be pronounced, after convictions 
 for murder, in the same manner, and the judge shall have the same 
 power in all respects, as after convictions for other capital offences. 
 
 The crime of " buggery committed either with mankind or with any 
 animal," is punishable with death.(c) Formerly rape was punishable 
 in the same manner, (d) but now the punishment is by transportation 
 for life.(*)[3] 
 
 (a) 9 G. 4, o. 31, s. 3. (d) 9 a. 4, a 31, s. 16. 
 
 (6) Id. s. 4. {e) 4 & 5 Vict. o. 56, s. 3. 
 
 (c) Id. s. 15. 
 
 If a .free person advise or conspire with a slave to rebel or make, insurrection, or with any 
 person, to induce a slave to rebel or make insurrection, he shall be punished with death, 
 whether such rebellion or insurrection be made or not. Code of Virgina, p. '722, sees. 1-4. 
 
 Wisconsin. — In Wisconsin, the distinction between murder and petit treason is abolished, 
 and the last named offence is prosecuted and punished as murder. Rev. Sts. of Wis. cb. 141, 
 sec. 13: 
 
 Iowa. — In Iowa, treason is punished" with death, and misprison of treason by fine, not 
 exceeding one thousand dollars, or by imprisonment in the penitentiary, not exceeding three 
 years, nor less than one year. ' Code of Iowa, tit. 23, ch. 137. 
 
 [2] In Michigan, the statute provides that, all murder which shall be perpetrated by means 
 of poison or lying in wait, or any other kind of wilful, deliberate, and premeditated killing, 
 o"r which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, 
 robbery or burglary, shall be deemed murder of the first degree, and shall be punished by 
 solitary confinement at hard labor in the state prison for life. 
 
 All other kinds of murder shall be deemed murder of the second degree, and shall be punish- 
 ed by imprisonment in the state "prison for life, or any term of years, in the discretion of the^ 
 court trying the same. Rev. Sts. of Mich. p. 658, sees. 1, 2. 
 
 [3] The crime of buggery is punished in Massachusetts by imprisonment in the state prison 
 not more than twenty years. Rev. Sts of Mass. ch. 130, sec. 14. In New York, it is punished 
 by imprisonment in a state prison for a term not more than ten years. 2 N. T. Rev. Sts. 
 689, see. 20. In Pennsylvania, it is punished by separate and solitary confinement at labor; 
 for the first offence for a period of not less than one, nor more than five years ; and for the 
 second offence, not exceeding ten years. Dunldp's Laws of Penn. p. 488. In Maryland, it 
 is punished by confinement not loss than one nor more than ten years. Laws of Maryland, 
 1809, ch. 138, sec. 4. . 
 
 In Virginia the punishment, is imprisonment in the penitentiary, not less than one, nor 
 more than five years. Rev. Code of Va. 1849, tit. 54, ch. 19T, sec. 12. The punishment in 
 Michigan, is imprisonment in the state prison, not more than fifteen years. Rev. Sts. of 
 Mich. tit. 30, ch. 158, sec. 16. In New Jersey it is punished by fine not exceeding one thou- 
 sand dollars, or imprisoned at hard labor for any term not exceeding twenty-one years, or 
 both. Rev. Sts. of N. J. tit. 8, ch. 1, sec. 9. The punishment in Wisconsin is imprisonment 
 
 71 
 
181—3 JUDGMENT. 
 
 But in every case Of a capital felony, except murder, if the court be- 
 fore -whom the offender shall be convicted, shall, be of opinion thatun- 
 
 in the state prison, not more than five years, nor- less than one year. Rev. Sts. of Wis. ch. 
 139, see. 15. In Georgia, the punishment is imprisonment, at lahor, in the' penitentiary, for 
 life. Hotchkiss 1 Stat. Law of Geo., p. 709. ' 
 
 Punishment for Rape. 
 
 United States. — If any person upon the high seas, or in any arm of the sea, or in any 
 river, haven, creek, basin or bay, within the admiralty and maritime jurisdiction of the United 
 States, and out of the jurisdiction of any particular state, shall commit the crime of wilful 
 murder or rape, or shall, wilfully and maliciously strike, stab, wound, poison or shoot at any 
 other person, of which striking, stabbing, wounding, poisoning or shooting, such person shall 
 afterwards die upon land within the United States, every person so offending, his or her 
 counsellors, aiders and abettors, shall be deemed guilty of felony, and shall, upon conviction 
 thereof, suffer death. Act. 3d March, 1825, see. 4. 
 
 If any person, upon the high seas, or in any of the other places aforesaid, with intent to 
 kill, rob, steal, commit a rape, or to do or perpetrate any other felony, shall break or enter 
 any vessel, boat or raft; or if any person shall, wilfully and maliciously, cut, spoil or destroy, 
 any cordage, cable, buoys, buoy-rope, head-fast, or other fast, fixed to any anchor or moor- 
 ings, belonging to any vessel, boat or raft ; every person so offending, his or her counsel- 
 lors, aiders and abettors shall be deemed guilty of felony, and shall, on conviction thereof, 
 be punished by fine, not exceeding one thousand dollars, and by imprisonment and confine- 
 ment to hard labor not exceding five years, according to the aggravation of the offence. lb. 
 sec. 7. 
 
 Massachusetts. — If any person shall ravish and carnally know any female, of the age of 
 ten years or more, by force and against her will, or shall, unlawfully and carnally, know and 
 abuse any female child, under the ago of ten years, he shall suffer the punishment of death 
 for the same. R. S. chap. 125, sec. 18. 
 
 New York. — Every person who shall be convicted of rape, either, 1, By carnally and un- 
 lawfully knowing any female child under the age of ten years ; or, 2, By forcibly ravishing 
 any woman of the age of ten years or upwards ; shall be punished by imprisonment in a 
 state prison, not less than ten years. 2 E. S. 663, sec. 22. 
 
 Every person who shall have carnal knowledge of any woman above the age often years, 
 •without her consent, by administering to her any substance or liquid, which shall produee 
 such stupor, or such imbecility of mind, or weakness of body, as to prevent effectual resist- 
 ance, shall, upon conviction, be punished by imprisonment in a state prison, not exceeding 
 five years. Ibid. sect. 23. 
 
 Pennsylvania. — Every person, duly convicted of the crime of rape, or as being accessory 
 thereto, before the fact, shall be sentenced to undergo a confinement in the jail and peniten- 
 tiary house of Philadelphia, for a period of time not less than ten years, nor more, than 
 twenty-one years, and shall be kept therein at hard labor, or in solitude ; and shall, in all 
 things, be treated and dealt with as is prescribed by an act, entitled, " An act to reform the 
 penal laws of this state ;" or by the provisions of this act. Act 22d April, 1794, 3 Dallas, 
 p. 600 ; 3 Smith, p. 187 ; Bur. 6th ed. p. 904, sec. 4. 
 
 Instead of the penitentiary punishment, heretofore prescribed, the punishment by solitary 
 confinement at labor shall be inflicted upon the several offenders who shall, after the first 
 day of July next, commit, and be legally convicted of, any of the offences hereinafter enume- 
 rated and specified ; that is to say : — Every person, duly convicted of the crime of rape, or 
 as being accessory thereto, before the fact, shall be sentenced to undergo a similar confine- 
 ment at labor, for the first offence for a period not less than two nor more than twelve 
 years ; and, for the second offence, for and during the period of his natural life, under the 
 same conditions as are heroin before expressed. Act 23d April, 1829 ; Pamph. p. 341, 6th 
 ed. Bur. p. 904, sec. 14. 
 
SENTENCE OP DEATH. 181 — 4 
 
 der the particular circumstances of the case, such offender is a fit and 
 proper subject to be recommended for the royal mercy, such court may, 
 
 Virginia. — If any white person carnally know a female of the age of twelve years or 
 more, against her will, by force, or carnally kDow a female child under that age, lie shall be 
 confined in the penitentiary, not less than ten nor more than twenty years. Code of 1849, 
 ch. 194, sec. 15. See Ibid, ch. 200. 
 
 New Jersey.— Any person who shall have carnal knowledge of a woman, forcibly and 
 against her will, or who shall aid, abet, counsel, hire, cause or procure any person or per- 
 sons to commit the said offence, or who, being of the age of fourteen years, shall unlawfully 
 and carnally know and abuse any woman child, under the age of ten years, with or without 
 her consent, shall, on conviction, be adjudged guilty of a high misdemeanor, and be punish- 
 ed by fine, not exceeding one thousand dollars, or imprisonment at hard labor, for any term 
 not exceeding fifteen years, or both. Rev. Stat, of N. J. p. 259, sec. 10. 
 
 Maine — If any man .shall ravish and carnally know any female of the age often years or 
 more, by force and against her will, or shall unlawfully or carnally know and abuse any 
 female child under the age of ten years, be shall be punished by imprisonment in the state 
 prison, for life. 
 
 If any person shall take any woman unlawfully and against her will, and, by force, 
 menace or duress, compel her to marry him, or any other person, or to be defiled, he shall 
 be punished by imprisonment in "the state prison, for life, or any term of years. 
 
 If any person shall take any woman, unlawfully and against her will, with intent to com- 
 pel her by force, menace or duress, to marry him or any other person, or to be defiled, he 
 shall be punished by imprisonment in the state prison, not more than ten years. Rev. Sta. 
 of Maine, p. 665, sees. 17, 18, 19. 
 
 Ohio. — That if any person shall have carnal knowledge of his daughter, or sister, forcibly 
 and against her will, every such person so offending, shall be deemed guilty of a rape, and 
 upon conviction thereof, shall be imprisoned in the penitentiary, and kept .at hard labor 
 during life. Stat, of Ohio, 230, c. 35, s. 4 ; Act of March Tth, 1835. 
 
 That if any person shall have carnal knowledge of any other woman, or female child, than 
 his daughter or sister, as aforesaid, forcibly and against her will; 'or if any male person of 
 the age of seventeen years and upwards, shall carnally know and abuse any female child, 
 under the age of ten years, with her consent, every person so offending shall be deemed 
 guilty of a rape, and upon conviction thereof, shall be imprisoned in the penitentiary, and 
 kept at hard labor, not more than twenty nor less than three years. Ibid. a. 5. 
 
 That if any male person seventeen years old and upwards, shall have carnal knowledge 
 of any woman, other than his wife, such woman being insane, he knowing her to be such, 
 ever person so offending shall be deemed guilty of a misderaanor, and upon conviction there- 
 of, shall be imprisoned in the penitentiary, and kept at hard labor, not more than ten or less 
 than three years. Ibid. s. 6. 
 
 Maryland. — Every person duly convicted of the crime of rape, or as being accessory 
 thereto, before the fact, shall, at the "discretion of the court, suffer death by hanging by 
 the neck, or undergo a confinement in the penitentiary for a period of time not less 
 than one year, nor more than twenty-one years, under the same conditions as are herein- 
 after prescribed. 
 
 If any person shall carnally know and abuse any woman child, under the age of 
 ten years, every such carnal knowledge shall be deemed felony, and the offender being 
 convicted thereof, shall, at the discretion of the court, suffer death by hanging by the neck, 
 or undergo a confinement in the penitentiary for a period not less than one year, nor more 
 than twenty-one years, to be dealt with according to law. l'Dorsey, 575. 
 
 Vermont. — If any person shall ravish and carnally know any female of the age of eleven 
 years or more, by force and against her will, or shall unlawfully and carnally know any 
 female child under eleven years of age, with or without her consent, such person shall be 
 punished by imprisonment in the state prison, for a term not exceeding twenty years, and 
 
181 — 5 JUDGMENT. 
 
 if it think fit, direct the proper officer, then present in court, to require 
 and ask, and whereupon such officer shall require and ask, if such of- 
 
 be fined a sum not exceeding two thousand dollars, or either or both of said punishments, 
 in the discretion of the court, before which such offence is prosecuted. Sec. 1 of No. 1 of 
 1849. 
 
 If any person shall assault any female, with the intent to commit the crime of rape, he 
 shall be punished by imprisonment in the state prison not exceeding ten years, and be fined 
 not exceeding one thousand dollars, or either or both of said punishments, in the discretion 
 of said court. Sec. 2 of No. 1 of 1849 ; Rev. Stat, of Ter. p. 543, sees. 24, 25. 
 
 MiOHiaAir. — If any person shall ravish and carnally know any female of the age of ten 
 years or more, by force and against her will, or shall unlawfully and carnally know and 
 abuse any female child under the age often years, he shall be punished by imprisonment in 
 the state prison for life, or for any term of years ; and such carnal knowledge shall be deem- 
 ed complete upon proof of penetration only. 
 
 If any person shall assault any female with intent to commit the crime of rape, he shall 
 be deemed a felonious assaulter, and shall be punished by imprisonment in the state prison 
 not more then ten years, or by fine not exceeding one thousand dollars. 
 
 If any person shall take any woman unlawfully and against her will, and by force, menace 
 and duress, compel her to marry him or any other person, or to be defiled, he shall be punish- 
 ed by imprisonment in the state prison for life, or any term of years. 
 
 If any person shall take any woman unlawfully and against her will, with intent to com- 
 pel her by force, menace or duress, to marry him or any other person, or to be defiled, he 
 shall be punished-by imprisonment in the state prison not more than ten years. Rev. Stat, 
 of Mich. p. 660, sees. 20, 21, 22, 23. 
 
 Georgia. — Rape defined. — Rape is the carnal knowledge of a female forcibly and against 
 her will. 
 
 Punishment for committing rape.-^Rape shall be punished by an imprisonment at labor in 
 the penitentiary, for a term not less than two years, nor longer than twenty years. 
 
 Punishment for an attempt to commit rape. — An assault with intent to commit a rape, shall 
 be punished by an imprisonment at labor in the penitentiary, for a term not less than one 
 year, nor longer than five years. Hotch. Stat. Law of Geo., p. 709, sees. 59, 60, 61. 
 
 Mississippi. — Rape, what to constitute, and how to be punished. — Every person who shall 
 be convicted of rape, either, 
 
 By carnally and unlawfully knowing a female child under the age often years: or, 
 By forcibly ravishing any woman of the age often years or upwards: 
 Shall be punished by imprisonment in the penitentiary, not less than ten years. 
 Other offences against femalts, and ttei/r punishment. — Every person who shall have car- 
 nal knowledge of any woman above the age of ten years, without her consent, by adminis- 
 tering to her any substance or liquid, which shall produce such stupor, or such imbecility of 
 mind or weakness of body, as to prevent effectual resistance, shall, upon conviction, be pun- 
 ished by imprisonment in the penitentiary, not exceeding five years. 
 
 Every person who shall take any woman unlawfully, against her will, and by force, me- 
 nace and duress, compel her to marry him, or to marry any other person, or to be defiled, 
 and shall be thereof duly convicted, shall be punished by imprisonment' in the penitentiary, 
 not less than ten years. 
 
 Every person who shall take away any female under tho age of fourteen years, from her 
 father, mother, guardian, or other person having the legal charge of her person, without their 
 consent, either for the purpose of prostitution, concubinage, or marriage, shall, upon convic- 
 tion thereof, be punished by imprisonment in the penitentiary, not exceeding three years, 
 or by imprisonment in a county jail not exceeding one year, or by a fine not exceeding one 
 thousand dollars, or by both such fine and imprisonment. Hutch. Mississippi Code, p. 959, 
 sees. 22, 23, 24, 25. 
 Louisiana. — Every person who shall hereafter be duly convicted of any manner of rape, 
 
SENTENCE OE DEATH. 181—6 
 
 fender hath or knoweth anything to say, why judgment of death should 
 not be recorded against such offender; and in case such offender snail 
 not allege any matter or thing sufficient in law to arrest or bar such 
 judgment, the court shall and may, and is hereby authorized, to abstain 
 from pronouncing judgment of death upon such offender ; and instead 
 
 or of the detestable andabomniable crime against nature, committed with mankind or beast, 
 shall suffer imprisonment at hard labor for life. Bullard & Curry's Digest, p. 242, ch. 31, 
 sec. 2. 
 
 Wisconsin. — If any person shall ravish and carnally know any female of the age of ten 
 years or more, by force and against her will, he shall be punished by imprisonment in the 
 state prison, not more than thirty years nor less than ten years ; but if the female shall be 
 proven on the trial to have been, at the time of the offence, a common prostitute, he shall 
 be imprisoned, not more than seven years nor less than one year. 
 
 If any person shall unlawfully and carnally know and abuse any female child under the 
 age of ten years, he shall be punished by imprisonment in the state prison for life. 
 
 If any person shall assault any female with intent to commit the crime of rape, he shall 
 be punished by imprisonment in the state prison, not more than ten years nor less than one 
 year. Rev. Stat, of Wis. p. 681, sees. 39, 40, 41. 
 
 Iowa. — If any person ravish and carnally know any female of the age of ten years or more 
 by force and against her will, or carnally know and abuse any female child under the age of 
 ten years, he shall be punished by imprisonment in the penitentiary for life or any term of 
 years. 
 
 If any person take any woman unlawfully and against her will, and by force, menace or 
 duress, compel her to marry him or any other person, or to be defiled, he shall be fined not 
 exceeding one thousand dollars, and imprisoned in the penitentiary not exceeding ten 
 years. 
 
 If any person unlawfully have carnal knowledge of any female by administering to her 
 any substance or by any other means producing such stupor or such imbecility of mind or 
 weakness of body as to prevent effectual resistance, he shall upon conviction be punished 
 as provided in the section relating to ravishment. 
 
 If any person assault a female with intent to commit a rape he shall be punished by im- 
 prisonment in the penitentiary not exceeding twenty years. Code of Iowa, p. 351, 352 
 sees. 2581, 2582, 2583, 2592. 
 
 Oregon. — That if any person shall have carnal knowledge of his daughter, or sister, forci- 
 bly, and against her will, every such person so offending shall be deemed guilty of a rape 
 and upon conviction thereof,- shall be imprisoned in the penitentiary, and kept at hard labor 
 during life. 
 
 That if any person shall have carnal knowledge of any other woman or female child, than 
 his daughter or sister as aforesaid, forcibly and against her will ; or if any male person of 
 the age of seventeen years and upwards, shall carnally know and abuse any female child 
 under the age of ten years, with the consent, every such person so offending shall be deemed 
 guilty of a rape, and upon conviction thereof, shall be imprisoned in the penitentiary, and ' 
 kept at hard labor, not more than twenty, nor less than three years. 
 
 That if any male person, seventeen years old and upwards, shall have carnal knowledge 
 of any woman other than his wife, such woman being insane, he knowing her to be such, 
 every person so offending shall be deemed guilty of a misdemeanor, and upon conviction 
 thereof, shall be imprisoned in the penitentiary, and kept at hard labor, not more than ten, 
 nor less than three years. 
 
 That if any person shall assault another with intent to commit a murder, rape, or robbery, 
 upon the person so assaulted, every person so offending shall be deemed guilty of a misde- 
 meanor, and upon conviction thereof, shall be imprisoned in the Penitentiary, and kept at 
 hard labor not more than seven, nor less than three years. Stat, of Oregon, pp. 81, 82, 84, 
 sees. 4, 5, 6, It. 
 
187 — 7 JUDGMENT. 
 
 of pronouncing such judgment, to order the same to be entered of 
 record, and thereupon such officer as aforesaid shall enter judg- 
 
 [*182] ment of *death on record against such offender, in the usual 
 and accustomed form, and in such and the same manner as is 
 
 now used, and as if judgment of death had actually been pronounced 
 
 in open court against such offender by the court.(a)[l] 
 
 (a) 4 G. 4, o. 48, a. 1. 
 
 [I] If the defendant does not succeed in reversing the judgment, there are yet two modes 
 by which he can stay or prevent its execution. The first of these operates only in capital 
 cases — a reprieve, which merely delays the execution; the second — a pardon, may be granted 
 in any case, and is an absolute bar to punishment, as well as to all subsequent proceedings . 
 
 The term reprieve is derived from reprendre, to keep back, and signifies the withdrawing 
 of the sentence for an interval of time, and operates in delay of executiun. 4 Bla. Com. 394. 
 It is granted either by the favor of his majesty himself, or the judge before whom the priso- 
 ner is tried or. his behalf, or from the regular operation of law, in circumstances which render 
 an immediate execution inconsistent with humanity or justice. 
 
 As to reprieves in general, see 1 Hale, 368 to 370. 2 Hale, 412 to 414. Hawk. b. 2, c. 
 51, s. 8, 9, 10. "Williams, J. Execution and Reprieve. 
 
 By the constitution of New York, the governor is vested with power to grant reprieves and 
 pardons, after conviction, for all offences, except treason and cases of impeachment : and 
 upon convictions for treason, he is authorized to suspend the execution of the sentence, until 
 the case can be reported to the legislature at its next session ; when the legislature shall 
 either pardon, or direct the execution of the criminal, or grant a further reprieve. 1 N. T. 
 Rev. Stat. (4th ed. Banks, Gould & Co. 1852,) ±1. 
 
 As to these reprieves, see observations, Gisb. Duties of Man, 390. 
 
 United States. — The President of the United States is autliorized to grant reprieves and 
 pardons for all offences against the United States, except in cases of impeachment. Const. 
 U. S. art. 2, sec. 2. 
 
 Pennsylvania. — The governor has power to remit fines and forfeitures, and grant reprieves 
 and pardons, except in cases of impeachment. Const, of Pennsylvania, art. 2, sec. 9. 
 
 The governor is authorized to pardon persons under sentence of death for treason or felony, 
 on condition that they depart from the United States. The sentence to be enforced in case 
 of not departing or returning. Smith's Laws Penn. 1 vol. 499, 500. 
 
 Massachusetts. — The power of pardoning offences except such as persons may be con- 
 victed of before the senate, by an impeachment of the house, shall be in the governor, by 
 and with the advice of the council; but no charter of pardon, granted by the governor, with 
 the advice of the council, before conviction, shall avail the party pleading the same, notwith- 
 standing any general or particular expressions contained therein descriptive of the offence or 
 offences intended to be pardoned. Const, ch. 2 § 1. art. 8. Rev. Stat. 36. 
 
 New Jersey.— Be it enacted by the senate and general assembly of the state of New 
 Jersey, That when a reprieve shall be granted by the governor or person administering the 
 government, to any convict sentenced to the punishment of death, and such convict shall not 
 be pardoned, it shall be the duty of the said governor or person administering the govern- 
 ment, to issue his warrant to the sheriff of the proper county, commanding him to execute 
 the sentence at such time as shall bo therein appointed and expressed; which warrant shall 
 be transmitted to said sheriff at the expense of the state. 
 
 Maine.— The governor has power, with the advice and consent of the council, to remit, 
 after conviction, all forfeitures and penalties and to grant reprieves and pardons, except in 
 cases of impeachment. Const, of Maine, art. 5, sec. 11. 
 
 "Whenever any person, who has been or shall hereafter be sentenced by the supreme 
 judicial court to suffer the punishment of death, shall make application to the governor for a 
 pardon, and the governor shall think proper, by and with advice and consent of the council^ 
 
SENTENCE OF DEATH. 182 
 
 As to the mode of proceeding, where the sentence of death is com- 
 muted for transportation, (a) or for imprisonment, (b) 
 
 (a) See 5 G. 4, o. 84, s. 2. (6) See 11 G. 4 & 1 "W. 4, o. 30, s. 7. 
 
 to grant such pardon on condition, that the person thus sentenced be imprisoned or confined 
 to hard labor during his natural life, or for any certain term of years, in the condition of such 
 pardon to be expressed, the governor is hereby authorized, in order to carry the same into 
 effect, to issue his warrant, directed to all proper officers, and they shall be held to serve and 
 obey the same in the same manner, as if such imprisonment or confinement had been the 
 punishment awarded in the original sentence. Rev. Sts. of Maine, p. 123, sec. 4. 
 
 Ohio. — The governor has power to grant reprieves and pardons after conviction, except 
 in cases of impeachment. Const, of Ohio, art. 2, sec. 5. 
 
 Be it enacted by the general assembly of the state of Ohio, That whenever the governor 
 may deem it expedient and proper to reprieve any person under sentence of death, upon any 
 condition whatsoever, the condition upon which such reprieve is granted, shall be specified 
 in the warrant, and the person accepting of such conditional reprieve, shall subscribe such 
 acceptance upon the warrant, containing the conditions of reprieve, in the presence of two 
 witnesses, who shall attest the same; and such witnesses shall go before the clerk of the 
 court where such sentence is recorded, and shall prove the same. And such clerk shall there- 
 upon record the warrant of reprieve, together with the acceptance and proof thereof, in the 
 journals of the court; a transcript of which record shall, at all times thereafter, be evidence 
 for and against the person accepting such conditional reprieve. 
 
 That if, in any case of reprieve, the governor shall deem it expedient and proper to con- 
 fine the person so reprieved in the penitentiary, it being so specified in the warrant, the 
 sheriff or other officer, having the person so reprieved in his custody, shall convey him or 
 her to the penitentiary, in the same manner as other convicts are directed by law to be con- 
 veyed ; and the keeper of the penitentiary shall receive such person, together with the war- 
 rant of reprieve, and shall proceed with such convict as such warrant may direct. And the 
 expenses of transporting such person to the penitentiary, shall be allowed and paid out of 
 the state treasury, ns in other cases. 
 
 That if any person, reprieved according to the first section of this act, shall violate the con- 
 ditions upon which such reprieve is" granted, such person shall be proceeded against as in 
 other cases of persons escaping from prison, charged with or convicted of crimes. 
 
 Maryland. — Be it enacted by the general assembly of Maryland, and it is hereby de- 
 clared, That the governor of this state may, in his discretion, grant to any offender capitally 
 convicted a pardon, on condition contained therein, and that such condition is and shall be 
 effectual as a condition, according to the intent thereof. 
 
 And be it enacted, That if such offender shall be a slave, and the condition of such pardon 
 shall be on leaving this state, or on transportation, the governor may direct the sheriff, in 
 whose custody such offender shall be, to contract and take proper security for the transpor- 
 tation of such slave, agreeably to the condition of his pardon ; and the sheriff may either sell 
 such slave subject to such condition, or empower some other person to sell him in the place 
 to which he shall be transported, for the benefit of the state, and the owner of such slave 
 shall be paid as if the same slave had been executed. Dorsey's Laws of Maryland, p. 248, 
 sees. 2, 3. 
 
 Virginia. — The governor has power to grant reprieves and pardons, except where the 
 prosecution has been carried on by the house of delegates, or the law otherwise particularly 
 directs- Const, of Ta. art. 4, sub. 4. 
 
 The governor shall not grant a pardon in any case before conviction, nor to any person 
 convicted of treason against the commonwealth, except with the consent of the general as- 
 sembly, declared by joint resolution. Neither shall he grant a reprieve to any person con- 
 victed of treason, for a longer period than until the end of the session of the general assembly, 
 during which it may be granted, or than until the end of the succeeding session, when it is 
 granted during the recess. 
 
182 — 1 JUDGMENT. 
 
 In the case of a slave under sontenee of death, the governor may order a commutation of 
 the punishment by directing that such, slave be sold, to be transported beyond the limits of 
 the United States. The governor shall cause him to be sold, and the purchaser, before de- 
 livery to him of the slave, shall pay into the treasury the price agreed, and enter into bond, 
 approved by the governor, in the penalty of one thousand dollars, conditioned that the slave 
 shall within three months be transported beyond the limits of the United States, and shall 
 never afterwards return into this state. 
 
 The governor shall not remit, in whole or in part, any fine or amercement assessed or im- 
 posed by any court of record, court martial or other authority having jurisdiction to assess 
 or impose the same, except as follows : 
 
 Whenever judgment shall have been rendered against any person for a contempt of court, 
 other than for non-performance of or disobedience to some order, decree or judgment, the 
 governor shall have power to pardon the offence and remit the punishment, whether corpo- 
 ral or pecuniary, either in whole or in part. Code of Virginia, p. 106, sees. 18-21. 
 
 Arkansas. — The governor of Arkansas has the constitutional power to pardon convicts, 
 on such condition as he may choose to impose, or upon the terms specified in the statutes ; 
 and if the pardon does not follow the terms of the statute it will be considered as granted 
 under the general power. Hunt, ex parte, 5 Eng. Ark. Eep. 284. 
 
 Michigan. — The governor may grant reprieves and pardons, after conviction, except in 
 cases of impeachment. Const, of Mich. art. 5, sub. 11. 
 
 In all cases in which the governor is authorized by the constitution to grant pardons, he 
 may grant a pardon upon such conditions, and with such restrictions, and under such limita- 
 tions as he may think proper, and he may issue his warrant to all proper officers to carry 
 into effect such conditional pardon, which warrant shall be obeyed and executed, instead of 
 the sentence, if any, which was originally awarded. 
 
 ■Whenever any convict is pardoned by the governor, or his punishment is commuted, the 
 officer to whom the warrant for that purpose is issued, after executing the same, shall make 
 return thereof under his hand, with his doings thereon, to the secretary of state, as soon as 
 may be, and he shall also file in the clerk's office of the court in which the offender was-con- 
 victed, a copy of the warrant and return certified by him, a brief abstract of which the clerk 
 shall subjoin to the record of the conviction and sentence. Rev. Sts. p. Ill, sees. 14, 15. 
 
 Georgia. In every case of conviction, for a capital felony, the owner of the slave, or 
 
 guardian of the free person of color convicted, may apply to the court before which the con- 
 viction shall have taken place, and obtain a suspension of the execution of the sentence, for 
 the purpose of applying to the governor for a pardon, and it shall be in the power of the go- 
 vernor to grant said pardon. 
 
 On a conviction for any other offence not punishable with death, the court may, at its dis- 
 cretion, grant a suspension of the execution of the sentence for tho purpose of enabling the 
 owner 'of a slave, or guardian of a free person of color, to apply to the governor for a pardon 
 or commutation of the punishment in such manner, and upon such terms and conditions as 
 he may think proper to direct. Hotcbkiss' Stat. Law of Geo. p. 848, sees. 51, 52. 
 
 Mississippi— In all criminal and penal cases, except in those of treason and impeach- 
 ment the governer shall have power to grant reprieves and pardons, and remit fines, and in 
 cases of forfeiture to stay the collection until the end of the next session of the legislature, 
 and to remit forfeitures, by and with the advice and consent of the senate. In cases of 
 treason he shall have power to grant reprieves, by and with the advice and consent of the 
 senate ; but may respite the sentence until the end of the next session of the legislature. 
 Const. Mississippi. 
 
 The governor of Mississippi has power to pardon a contempt committed against the cir- 
 cuit court, and to remit the sentenco of fine and imprisonment. Ex park Bickey, 4 Smedes 
 & Marsh. 751. 
 
 Vermont.— The governor, and in his absence, the lieutenant governor, with the council, 
 have power to grant pardons, and remit fines, in all cases whatsoever, except in treason and 
 murder, in which they have power to grant reprieves, but not to pardon, until after the end 
 of the next session of assembly; and except in cases of impeachment, in which there canbe 
 
SENTENCE OF DEATH. 182 — 2 
 
 no remission or mitigation of punishment, but by act of legislation. Const, of Vermont, part 
 2, sec. 11. 
 
 "Wisconsin. — The governor shall have power to grant reprieves, commutations, and par- 
 dons, after conviction, for all offences, except treason and cases of impeachment, upon such 
 conditions, and with such restrictions and limitations as he may think proper, subject to such 
 regulations as may be provided by law relative to the manner of applying for pardons. Upon 
 conviction for treason, he shall have the power to suspend the execution of the sentence 
 until the case shall be reported to the legislature, at its next meeting, when the legislature 
 shall either pardon, or commute the sentence, direct the execution of the sentence, or grant 
 a further reprieve. He shall annually communicate to the legislature each case of reprieve, 
 commutation, or pardon granted, stating the name of the convict, the crime of which he was 
 convicted, the sentence and its date, and the date of the commutation, pardon, or reprieve, 
 with his reasons for granting the same. Const, of "Wis. art. 5, sec. 6. 
 
 In all eases in which the governor is authorized to grant pardons, he may, upon the 
 petition of the person convicted, grant a pardon upon such conditions, and with such re- 
 strictions, and under such limitations as he may think proper, and he may issue his war- 
 rant to all proper officers, to carry into effect such conditional pardon, which warrant shall 
 be obeyed and executed instead of the sentence, if any, which was originally awarded. 
 
 "Whenever any convict is pardoned by the governor,' or his punishment is commuted, the 
 officer to whom the warrant for that purpose is issued, after executing the same, shall make 
 return thereof, under his hand, with his doings therein, to the governor, as soon as may be, 
 and he shall also file with the clerk of the court, in which the offender was convicted, an 
 attested copy of the warrant and return, a brief abstract whereof the clerk shall subjoin to 
 the record of his conviction and sentence. Rev. Sts. of Wis. p. 731, sees. 1, 2. 
 
 Iowa. — The governor has power to grant reprieves and pardons, and commute punish- 
 ments, after conviction, except in cases of impeach ment. Const, of Iowa, art. 4. sub. 13. 
 
 In all cases in which the governor is authorized by the constitution to grant pardons, he 
 may grant them upon such conditions and with such restrictions and limitations as he may 
 think proper, and may issue his warrant to all proper officers to carry into effect such con- 
 ditional pardon. 
 
 Whenever any convict is pardoned by the governor, or his punishment is commuted, the 
 officer to whom the warrant is directed after executing the same, must make return thereof 
 with his doings thereon, to the secretary of state, as soon as may be, and such officer must 
 also file in the clerk's office of the court in which the offender was convicted, a certified copy 
 of the warrant and return, a brief abstract of which the clerk shall subjoin to the record of 
 conviction. 
 
 Fines imposed as a punishment for a public offence can be remitted only by the governor 
 of this state ; those for contempts of court may be remitted by the court by which they were 
 imposed. 
 
 In capital cases the governor may, for good cause shown, grant a reprieve to any convict 
 for a time not exceeding one year from the rendition of the judgment. Code of Iowa, ch. 
 205, sees. 3218-3281. 
 
 .Oregon. — The governor of the territory may grant pardons and respites for offences, 
 against the laws of said territory, and reprieves for offences against the laws of the United 
 States, until the decision of the President can be made known thereon. Act of congress, ap- 
 proved Aug. 14, 1848. 
 
 But the more usual course is, for a discretionary reprieve to proceed from the judge him- 
 self; who, from his acquaintance with all the circumstances of the trial, is most capable of 
 judging when it is proper. The power of granting this respite belongs, of common right, to 
 every tribunal, which is invested with authority to award execution. Hawk. b. 2. u. 51. s. 
 8. Williams J. Execution and Reprieve. And this power exists even in case of high trea- 
 son though the judge should be very prudent in its exercise. 1 Hale, 368. But it is com- 
 monly granted where the defendant pleads a pardon, which, though defective in point of 
 form sufficiently manifests the intention of the crown to remit the sentence ; (Hawk. b. 2. c. 
 51 s 8 William« J Execution and Reprieve ;) where it seems doubtful whether the of- 
 
 72 
 
1S2 3 JUDGMENT. 
 
 fence is not included in some general act of grace ; (2 Dyer. 235, a. Hawk. b. 2, c. 51, s. 8, 
 Williams, J. Execution and Reprevie ;) or whether it amounts to so high a crime as that 
 charged in the indictment. 3 Dyer, 296, a; Hawk. b. 2, c. 51. s. 8. Williams. J. Execution 
 and Reprove. The judge sometimes also allows it before judgment or at least intimates his 
 intention to do so, as when he is not satisfied with the verdict, and entertains doubts as to 
 the prisoner's guilt: or when a doubt arises, if the crime be not within clergy; or when, 
 from some favorable circumstances, he intends to recommend the prisoner to mercy. 2 Hale, 
 412 ; 4 Bla. Com. 394, 
 
 There are also some cases in which ex necessitate legis, the judge is bound to reprieve. 
 Thus, when a woman is convicted either of treason or felony, she may allege pregnancy in 
 delay of execution. 3 Inst. 17, 18 ; 1 Hale, 368; 2 Hale, 406, 413 ; Hawk. b. 2, c. 51 s. 
 9 ; 4 Bla. Com. 395. This humane practice is derived from the laws of ancient Home, 
 which direct " quod prcegnantis rnvMeris damnatm pxna differater quoad patiat," and has been 
 established in England, from the earliest periods. 4 Bla. Com. 395. In order, however, to 
 render this plea available, she must be quick with child, at the time it is offered, for mere 
 pregnancy, in any earlier stage, will not be regarded. 5 Inst. 17 ; 1 Hale, 368 ; 2 Hale, 
 413; Hawk. b. 2, c. 51, s. 9. Even when this is the case, it will not operate as a plea in 
 bar at the trial, or as a cause for arresting the judgment, but can only be pleaded in stay of 
 execution. 3 Inst. 17 ; 2 Hale, 413 ; 1 Hale, 368 ; 4 Bla. Com. 395. 
 
 If she allege that she is pregnant, a jury of twelve matrons are impannelled and sworn to 
 try whether she is quick with child, for which purpose they retire with her to some conveni- 
 ent place ; and if they find in the affirmative, which, it is said, the gentleness of their sex 
 generally inclines them to do, when pregnancy exists at all, (2 Hale, 413,) she is respited 
 till a reasonable time after her delivery, or till the ensuing session. 3 Inst. 17 ; 1 Hale, 
 368, 9; 2 Hale, 413 ; Hawk. b. 2, c. 51, s. 9 ; 4 Bla. Com. 395. 
 
 If, at the next sessions, she has not been delivered, and, according to the course of nature, 
 there is still a possibility that she may be delivered, she will be again respited till the ses- 
 sion ensuing. 1 Hale, 369 ; 2 Hale, 414 ; 4 Bla. Com. 395. And it is said, that where it 
 is discovered that she was not quick with child, at the time of the verdict of the matrons, or 
 even where she was not then with child at all, but has since become so, she ought to receive 
 another respite. 1 Hale, 369. But it is certain, that if she had been once delivered, she 
 has no right afterwards to claim any further delay of execution ; because, as it is said, she 
 ought not, by her own incontinence, or voluntary act, after sentence, to evade the sentence 
 of the law. 3 Inst. 17, 18; 4 Bla. Com. 395; 1 Hale, 369; 2 Hale, 413; Pinch, 478; 
 Hawk. b. 2, u. 51, s. 10. But, as the original delay was intended, not from forbearance to 
 the mother, but pity for the innocent, this seems scarcely reconcileable with the humane 
 principle which dictates the first reprieve ; and, probably, in such a case, the judge would 
 exercise the discretion he always possesses, in granting another respite. 4 Bla. Com. 395, 
 n. (1). 
 
 The other cause, for which the judge is bound to grant a reprieve, is the insanity of the 
 prisoner. It has, from the earliest periods, been a rule, that though a man be in the full 
 possession of his senses when he commits a capital offence, if he becomes non compos after 
 it, he shall not be indicted; if, after'indictment, he shall not be convicted; if, after convic- 
 tion, he shall not receive judgment ; if, after judgment, he shall not be ordered for execu- 
 tion. 4 Harg. St. Trial, 205, 6 ; 3 Inst. 4, 1 Hale, 370 ; Hawk. b. 1, c. 1, s. 4 ; 4 Bla. Com. 
 395 : Williams, J. Execution and Reprieve. And this opinion is confirmed by the fact, that 
 a statute was passed in the reign of Henry the Eighth, (33 Hen. 8, c. 20,) to allow of exe- 
 cution of persons convicted of high treason, though insane, which was always thought cruel 
 and inhuman, and was repealed in the reign of Phillip and Mary. 1 & 2 Phil. & Mary, c. 10, 
 4 Harg. St. Tr. 206 ; 1 Hale, 370. The true reason of this lenity is not that a man, who has 
 become insane, is not a fit object of example, though this might be urged in his favor, but 
 that he is incapable of saying anything in bar of execution, or assigning any error in the 
 judgment. 4 Harg. St. Tr. 205, 206 ; 4 Bla. Com. 396. The judge may, if he pleases, swear 
 a jury to inquire, ex officio, whether the prisoner is really insane, or merely counterfeits ; 
 
SENTENCE OF DEATH. 182 — 4 
 
 and, if they find the former, he is bound to repreive him till the ensuing session. 1 Hale, 
 370 ; 4 Bla. Com. 396. 
 
 Massachusetts. — If it shall appear, to the satisfaction of the governor and council, that 
 any convict, who is under sentence of death, has become insane, the warrant for his execu- 
 tion may be delayed, or if such warrant has been issued, the execution thereof may be re- 
 spited, from time to time, so long as the governor and council shall think proper ; and if any 
 female convict, who is under sentence of death, shall be quick with child, the governor and 
 council shall forbear to issue a warrant for her execution, or if such warrant has been issued, 
 the execution thereof shall he respited, until it shall appear, to the satisfaction of the gover- 
 nor and council, that such female convict is no longer quick with child. Eev. Stat, of Mass. 
 p. 161, sec. 12. 
 
 New York. — The governor shall be authorized to require the opinion of the judges of the 
 court of appeals, justices of the supreme court and of the attorney general, or of any of them 
 upon any statement so furnished. As amended, same ch., § 2. 
 
 No judge, court or officer, other than the governor, shall have any authority to reprieve 
 or suspend the execution of any convict sentenced to the punishment of death; except she- 
 riffs, in the cases and in the manner hereinafter provided. 
 
 If after any convict shall have been sentenced to the punishment of death, he shall become 
 insane, the sheriff of the county with the concurrence of a justice of the supreme court, or if 
 he be absent from the county, with the concurrence of the county judge of the county in 
 which the conviction was had, may summon a jury of twelve electors to inquire into such 
 insanity, and shallgive immediate notice thereof to the district attorney of the county. As 
 amended 1847, ch. 328, § 3. 
 
 The district "attorney shall attend such inquiry, and may produce witnesses before the 
 jury ; for which purpose he shall have the same power to issue subpoenas, as for witnesses 
 to attend a grand jury, and disobedience thereto may be punished by the court of oyer and 
 terminer which shall next sit in such county, in the same manner as disobedience to any 
 process issued hy such court. 
 
 The inquisition of the jury shall be signed by them and the sheriff. If it be found by such 
 inquisition that such convict is insane, the sheriff shall suspend execution of the warrant 
 directing the death of such convict, until he shall receive a warrant from the governor of 
 this state, or from the justices of the supreme court, directing the execution of such con- 
 vict. 
 
 The sheriff shall immediately transmit such inquisition to the governor ; who may, as soon 
 as he shall be convinced of the sanity of such convict, issue a warrant appointing a time and 
 place for his execution, pursuant to his sentence. 
 
 If a female convict sentenced to the punishment of death, be pregnant, the sheriff shall in 
 like manner summon a jury of six physicians, and shall give the like notice thereof to the 
 district attorney, who shall attend and have power to issue subpoenas, as herein before pro- 
 vided, and with the like effect. An inquisition shall in like manner be made and signed by 
 the jurors and the sheriff. 
 
 If by such inquisition it appear that such female convict is quick with child, the sheriff 
 shall in like manner suspend the execution of her sentence ; and shall transmit the inquisi- 
 tion to the governor. 
 
 "Whenever the governor shall be satisfied that such female convict is no longer quick with 
 child, he shall issue his warrant, appointing a day for her execution pursuant to her sentence ; 
 or he may in his discretion commute her punishment to perpetual imprisonment in the state 
 prison. Eev. Stat, of N. Y., pp. 844, 845, sees. 14, 15. 16, 17, 18, 19, 20, 21, 22. 
 
 The prerogative of pardon is, in general, a matter of pure discretion, exercised by the 
 chief magistrate according to the peculiar circumstances of each individual offence, which 
 comes under his cognizance. But there are certain cases which come with so strong a claim 
 to indulgence, that they are seldom, if ever, resisted. Of this nature, is the implied engage- 
 ment of immunity to accomplices, who bring their associates to justice. 
 
 The engagement of a judge of the peace to an accomplice, that if he will give his evidence 
 he may expect favor, is merely a personal engagement on his part, that he will recommend 
 
182 — 5 JUDGMENT. 
 
 the accomplice to mercy ; for a judge of the peace has no authority to promise him any favor, 
 or to tell him that he shall be a witness against others. A judge of the peace has no autho- 
 rity to select whom he pleases to pardon or prosecute ; and the prosecutor has still less 
 power or rather pretence, to do this, than the judge. 1 Chit. Cr. L. 83 ; 1 Leach, 115. 
 Whatever promises or engagement a judge may make with an accomplice, and however 
 punctually or faithfully the accomplice may comply with the conditions upon which such 
 promises were made, he cannot avail himself of them on his trial They may operate, as an 
 equitable claim upon the government for a pardon, or a postponement of his trial. And on 
 this account the greatest caution and judgment ought to be used by judges of the peace 
 upon these occasions. The power assumed by them of admitting accomplices to be wit- 
 nesses, is founded in practice only, and does not control, and in many cases ought not to in- 
 fluence, the authority of the court by which the accomplice is liable to be tried. The ac- 
 complice, therefore, may be deceived and drawn in, under the color and pretence of judicial 
 authority and power of protection, to disclose what he is not bound to discover ; and thus 
 make himself the deluded instrument of his own conviction. Cowp. 331 ; Davis' Just. 69, 
 70. The benefit of the accomplice is in fact nothing more than a mere hope that he may be 
 exonerated from punishment ; but in this hope he may be deceived and disappointed ; and 
 when that is the case, he has not, in reality, any grounds to complain of a breach of public 
 faith, as sometimes happens to be the case. There can be no breach of public faith, when 
 it is pledged without competent authority. The correct practice is in conformity to these 
 principles ; for no judge would probably take the responsibility of releasing an accomplice 
 who offers to give evidence against his associates ; but would commit him for trial, and 
 leave the event to the decision and control of the court before whom he is liable to be tried. 
 Davis' Just. 10 ; 1 Chit. Cr. L. 82. In some cases, when an accomplice offers to testify 
 against his associates, and more especially when he offers to point out the place where the 
 evidence of the guilt of his associates may be discovered, (as by showing the places where 
 stolen goods or counterfeit bank notes are deposited,) it may be safe and advisable for the 
 judge to inform him that if he conducts fairly in every respect, and discloses thewhole truth, 
 concerning the guilt of himself and his associates, his punishment may he mitigated, and 
 that perhaps he may obtain a pardon. But he ought to inform him at the same time, that 
 he has no power or right to make any promise or engagement with him to that effect; and 
 further, that his confession, testimony, and disclosure must not only be perfectly voluntary, 
 but that it must be found to be strictly true. 
 
 "With respect to those cases where favorable circumstances may induce the chief magis- 
 trate to extend his prerogative of remission, no general rules can, of course, be given. But 
 nothing can tend more to unsettle the public ideas of crime, than the frequent exercise of 
 the pardoning power. It is contended with great eloquence and ability by Becearia (Tr. on 
 Cr. 115 6, 7,) that clemency should shine forth in the laws, and not in the executive. But 
 it must be admitted that there are many cases to which no general rules can apply; where 
 " summum jus," would be " swmma injuria ; " and where forgivness is at once beneficial to 
 the government which bestows, and just to the party who receives it. 
 
 In order to render a pardon valid, it must express with sufficient accuracy the crime it is 
 intended to forgive. 4 Blk. Com. 400. 
 
 The United States v. Nathan UiMns. The defendant was convicted and sentenced " to six 
 months imprisonment, to pay a fine of one hundred and fifty dollars, and the costs of prose- 
 cution." A motion was made to discharge him, the President of the United States having 
 granted a pardon, reciting, " that Nathan Lukins was confirmed in the jail of Philadelphia 
 under sentence of the circuit court of the United States, whereby he was bound to pay a 
 pecuniary fine to the United States, and to stand committed until the fine and costs should 
 be fully satisfied." The pardon proceeds to state that the President " remits the fine afore- 
 said ; hereby willing and requiring that Nathan Lukins, on payment of tho costs of prose- 
 cution, be forthwith discharged from imprisonment." At the foot of the record of conviction, 
 which had been transmitted to the oxecutive, was written by the President, " Let the fine 
 be remitted on payment of costs." 
 
 By the Cowrt, The intention of the President is manifest : it was to remit the fine only. 
 
SENTENCE OF DEATH. 182—6 
 
 The fine only being pardoned, the President cannot order the prisoner to be discharged from 
 the residue of the sentence. If he pardons generally, remission of fine and discharge fol- 
 lows of course. But if the pardon apply only to the fine, an order to discharge from impris- 
 onment, will not justify the marshal in discharging the prisoner. 
 
 The motion was overruled, and during the session of the court, the President granted a 
 general pardon. MSS. Reports in the circuit court of the XJ. S. for the Pennsylvania Dis- 
 -trict, April sess. 1818. 3 Wash. C. C. 335. 
 
 The pardon of a person convicted of forgery,, and sentenced to the state prison for life, 
 contained a proviso that nothing in the pardon should be construed so as to relieve the con- 
 vict of, and from the legal disabilities to him from the conviction, sentence and imprisonment, 
 other than the said imprisonment : It was held, that the proviso was repugnant to the par- 
 don itself, and must be rejected, and the party be freed from all legal disabilities. People v. 
 Pease, 3 J. Cas. 333, in error. See State v. M'Garty, 1 Bay, 334. 
 
 A pardon may be extended to the subject, on any condition which the executive thinks 
 fit to annex, whether precedent, or subsequent, on the performance of which the validity of 
 the pardon will depend. And this prerogative is daily exerted in the pardon of felons, on 
 condition of being confined to hard labor for a stated time, or of transportation to some for- 
 eign country for life, or for a term of years, such transportation being allowed by the act of 
 habeas corpus and subsequent acts. 31 Car. 2. c. 2. s. 14 ; 8 Geo. 3. c. 15 ; 19 Geo. 3. c. 
 1i; 24 Geo. 3. c. 56; 31 Geo. 3. u. 46 ; 4 Bla. Com. 401 ; Williams, J. Pardon, II. And if 
 he does not perform the condition of the. pardon it will be altogether void, and he may be 
 brought to the bar and remained to suffer his original sentence. Moor, 466 ; Bac. Abr. Par- 
 don, E. Williams, J. Pardon, III ; Diet. Sess. 431. If after such a pardon the felon's wife 
 become entitled to some personal estate, this will be decreed, in equity, to belong to the 
 wife as to a feme sole. 3 P. W. 3*7, 8. 
 
 See Rev. Stat, of Mass. ch. 142, § 12 ; State v. Smith, 1 Bailey, 283. In this last case it 
 was held, that the Governor of South Carolina might annex the condition that the prisoner 
 should leave the state and never return. 
 
 In Virginia, it is held, that the Governor cannot pardon on condition ; for the condition is 
 void and the pardon absolute. Commonwealth v. Fowler, 4 Call, 35. 
 
 If a pardon be granted conditionally, the condition must be performed, otherwise the sen- 
 tence will be executed. State v. Fuller, 1 M'Cord, If 6; State v. Smith, 1 Bailey, 283 ; State 
 v. Addington, 2 Bailey, 516. See People v. James, 2 Caines, 51. 
 
 See FlavelVs case, 8 Watts & Serg. Rep. 197. 
 
 The effect of pardon, is not merely to prevent the infliction of the punishment denounced 
 by the sentence, but to give to the defendant a new capacity, credit, and character. 
 
 See Deming's case, 10 John. Rep. '232. 
 
 Competency may be restored by pardon, after the witness shall have served out the term 
 of his imprisonment in the state prison ; yet no credit is due to him, unless he be corrobo- 
 rated by others, or by the circumstances of the case. United States v. Tom Jones, 2 Wheol. 
 Cr. Cas. 451, 454, 455, 460, 461, before Thompson, J., case of piracy. 
 
 The effect of a pardon is to acquit the offender of all the penalties annexed to the convic- 
 tion, and to give him a new credit and capacity. Matter of Deming, 10 John. Rep. 232. 
 
 A person having been convicted of forgery, and sentenced to the state prison for life, was 
 pardoned by the governor. The pardon contained a proviso, that nothing in it should be 
 construed " so as to relieve the prisoner of and from the legal disabilities to him, from the 
 conviction, sentence and imprisonment, other than the said imprisonment." This proviso 
 was held to be repugnant to the pardon itself, and was rejected, and it was held that the pri- 
 soner was freed from all' legal disabilities and was a competent witness. The People v. Pease, 
 3 John. Cas. 333. 
 
 Where a prisoner had been pardoned on condition of leaving the state for a specified time, 
 and the condition was not complied' with, the court, after the expiration of the time, held 
 .the pardon to be void, and passed sentence. State v. Fuller, 1 M'Cord, 118. But where, in 
 such case it appeared that the prisoner had been insane, after the conditional pardon was 
 granted, the court, upon"his being seized and brought up for sentence, discharged him, upon 
 
182 — 7 JUDGMENT. 
 
 (b) Sentence of transportation. 
 
 By stat. 5 G. 4, c. 84, Her Majesty, by and with the advice of her 
 privy council, may from time to time appoint any place or places be- 
 yond the seas, either within or without her dominions, to which felons 
 or other offenders under sentence or order of transportation shall be 
 conveyed. And the sentence runs accordingly thus :— " The sentence 
 of the court is, that you be transported beyond the seas, to such place 
 as Her Majesty, by and with the advice of her privy council, may di- 
 rect and appoint, for the term of [your natural life," or " years".] 
 
 The statute by which the offence is punishable, mentions the term of 
 transportation. But it is provided by stat. 9 & 10 Vict. c. 24, s. 1, that 
 where the term of transportation is for life or some long term of years, 
 or where imprisonment is to be for a term not less than two years, it 
 shall be lawful, if the court shall think fit, to pass sentence of trans- 
 portation for a less term (but not less than seven years,) and to pass sen- 
 tence of imprisonment for a less term than two years with or without 
 hard labor. [2] 
 
 condition of his departing within the same period originally limited in the pardon. The Peo- 
 ple v. James, 2 Caines' Hep. 57. For form "of pardon, see Hoffman v. Coster, 2 Whart. 453, 
 468, 9. 
 
 The plea of non-identity may also probably occur in this stage of the proceedings. If the 
 prisoner was attainted in another court, or has since his sentence been out of custody, it is 
 open to him to allege that he is not the party against whom the sentence was given ; (Fost. 
 40. 1 Bla. Rep. 3. 4 Bla. Com. 396 ;) or if the prisoner escapes and is re-taken, the same 
 question may arise. 3 Burr. 1810. In these eases, the court must ask the party in custody 
 whether he has any thing to say why execution should not be awarded against him. 1 Hale, 
 368. 3 Burr. 1810. 1 Bla. Rep. 4. Fost. 40. On this he may, ore tewus, and, without hold- 
 ing up his hand, aver that he is not the person mentioned in the record, to which the attor- 
 ney-general may, in the same way, reply that he is the same, and that he is ready to verify 
 it, and a venire will be awarded to try the issue thus joined returnable instanter. 1 Bla. 
 Rep. 4. Fost. 40, 1. 3 Burr. 1810. The prisoner may be allowed counsel to assist him, 
 but the court will not put off the trial unless strong grounds are shown to presume that the 
 party has been mistaken. 3 Burr. 1810. Fost. 41. 1 Bla. Rep. 4. 4 Bla. Com. 396. Nor 
 will time be allowed him to produce witnesses, unless he will positively swear that he is not 
 the party attainted. Fost. 42. 4 Bla. Com. 396. 4 Bla. Rep. 4, 5. Not, though his life is 
 in question, can he be allowed to make any peremptory challenges. 1 Lev. 61. Fost. 42. 
 1 Bla. Rep. 6. 4 Bla. Com. 396. During this trial if the offenders have escaped and are con- 
 sidered desperate, they may be chained together. 3 Burr. 1812. If the jury find them to 
 be the same persons, no proclamation ought to be made before the award of execution; (3 
 Burr. 1811 ;) but execution will immediately be awarded according to the original sentence. 
 Id. ib. 
 
 If all these resources fail — if no reprieve is sent — no pardon obtained — and the identity 
 of the prisoner is either indisputable, or thus ascertained— ■-nothing remains but to execute 
 the sentence. This brings us to the end and object of every criminal prosecution — the 
 punishment of the offender. 
 
 [2] Transportation, or exile, (it was held, that by the word transportation, in the 8 Geo. 3, 
 c. 15, (now repealed by 5 Geo. 4, c. 84,) was meant not merely the conveying of a felon to 
 the place of transportation, but his being so conveyed and remaining there during the term 
 for which he was ordered to be transported,) is generally regarded as the next to death in the 
 
SENTENCE OF IMPRISONMENT. 182—8 
 
 (c) Sentence of imprisonment. 
 
 By stat. 5 & 6 W. 4, c. 38, s. 4, whenever any person snail be con- 
 victed at any assizes or sessions, of any offence for which he or she shall 
 be liable either to the punishment of death, transportation, or imprison- 
 ment, it shall be lawful for the court, if it shall so think fit, to commit 
 such person to any house of correction for such county, in execution of 
 
 scale of punishment, though, perhaps, it amounts to scarcely any punishment at all, in the 
 estimation of many of those criminals who actually endure it. It was altogether unknown 
 as a penalty to the common law of England. 2 Hen. Bla. 223. 3 P. Wms. 38. 2 T. R. 584. 
 Co. Lit. 133, a. 1 Bla. Com. 137. Williams, J., Felony, VI. Dick. Sess. 232. The only 
 case in which it arose, seems to have been that of abjaration, where the party accused fled 
 to a sanctuary, confessed his crime, and took an oath to leave the kingdom at the port assign- 
 ed him, and never to return without the permission of his majesty. 4 Bla. Com. 333. 3 P. 
 Wms. 37. This was evidently not a punishment, but a condition of pardon ; for it was ex- 
 pressly provided by magna charta, (9 Hen. 3, st. 1, c. 29,) that no freeman shall be banished, 
 unless by the judgment of his peers, or by the law of the land. The first introduction of exile 
 into the English law, after abjuration was abolished, by the 30 Eliz. c. 4, respecting vagrants, 
 which was repealed by the 12 Anne, st. 2, c. 23. Very soon after the restoration of Charles 
 the second, it became usual for the crown to grant pardons, on condition that the offender 
 should be banished, either for life, or for some limited period, and that the original sentence 
 should be reviewed on his breaking the stipulations of its remission. Kel. Preface, iv. Kel. 
 45. 2 Hen. Bla. 223. Hawk. b. 2, c. 33, s. 139. Williams, X, Pelony, VI. When this 
 mode was pursued, the convicts were not to be sent away as slaves, but upon indentures by 
 which they were bound to serve particular masters for seven or five years, during the last 
 part of which they were to receive wages, and at the expiration of which time, they were to 
 be allowed land and stock of their own, according to the usage of the plantations. Kel. 
 Pref. iv. Kel. 45. An account was also to be given of the usage they met with, of the ex- 
 piration of their time, and of their arrival or departure. Kel. Pref. iv. The substitution of 
 exile, for capital punishment was expressly allowed by the habeas corpus act, which, in 
 other cases, rendered all confinement beyond the realm, illegal. 31 Car. 2, c. 2, s. 14. At 
 length, by the 4 Geo. 1, c. 11, transportation was introduced in certain cases, (now extend- 
 ed to all clergyable felonies,) (by 6 Geo. 4, c. 25, s. 2,) instead of burning in the hand, or 
 whipping, which were, at that time, the conditions 'on which laymen were admitted to 
 clergy. By that act, when any person entitled to clergy on undergoing those penalties was 
 convicted of grand or petit larceny, or the felonious stealing of money or goods, the court 
 before whom he was tried, was empowered, instead of the whipping, or burning in the hand 
 to order him to be sent to some of his majesty's plantations in. America, for seven years, and 
 to transfer them, by order, to the use of such persons, and their assigns, as would contract 
 for their performance of the sentence. Prisoners convicted of knowingly receiving stolen 
 goods, were also made subject to the same regulations, when transported for fourteen years ; 
 and now offenders may, in various offences, be transported for life. Where a pardon is 
 granted, on condition of transportation, and no term is specified, in that case the offender is 
 to be transported for fourteen years, by the 4 Geo. 1, c. 11. 
 
 The principal act now in force regulating the transportation of offenders, is the 5 Geo. 4, 
 c. 84, which revives and consolidates all the laws on the subject ; (the act repeals the 4 Geo. 
 1, u. 11, in part, the 6 Geo. 1, v. 23, in part, the 16 Geo. 2, c. 15. 8 Geo. 3, c. 15, the 28 
 Geo. 3, c. 24, in part, the 31 Geo. 3, c. 46, in part, and the 43 Geo. 3, c. 15, the parts un- 
 repealed will be found noticed in the text. This aet does not extend to persons banished, 
 under the 60 Geo. 3, and 1 Geo. 4, c. 8, for seditious libels;) and by the second section of 
 that act, offenders adjudged for transportation are to be transported under its provisions. 
 
 Punishment by transportation, is unknown in the United States. 
 
182—9 JUDGMENT. 
 
 the judgment. Or such prisoner may undergo his imprisonment in the 
 common jail of the county, &c, in which he is convicted. The court 
 of Queen's Bench, indeed, when it passes sentence of imprisonment, 
 may order the party to be imprisoned in any county in England, with- 
 out reference to the place where the offence was committed ;(a) but this 
 is not the case with courts of oyer and terminer or jail delivery, or 
 courts of quarter sessions. 
 
 ^ The period of imprisonment for an offence by statute, is always men- 
 tioned in the statute ; in what cases the sentence may be for a less 
 term.(i) For an offence at common law, however, the term is' not lim- 
 ited ; but the court seldom, even for offences the most ag- 
 gravated,, a ward a longer impisonment than two years. *As [*183] 
 the being already sentenced for another offence.(c)[l] 
 
 (a) Arch. Pr. Cr. Off. 108; see R. v. Gar- (6) See atat 9 & 10 Viet. e. 24, a. 1, supra, 
 side, 2 Ad. & El. 266. (c) Wilkes v. R.in error, 4 Bro. P. 0. 361. 
 
 [1] The punishment of imprisonment forma a part of almost every sentence for crimes 
 which are visited with any species of corporal privation or suffering. Thia is a species of 
 punishment, the duration of which depends upon the nature of the offence, and where the 
 judge haa a discretion to exercise it should be proportioned in its length, to the circumstances 
 of the case. 
 
 If the order of a court be to confine a person in a certain prison, the confining him in any 
 other prison would be false imprisonment, for which he may recover damages. ' Salk. 408. 
 Skin. 664. Bac. Ab. Trespass, D. 3. When a party convicted is actually in custody for one 
 offence, and is afterwards tried for another, before the original term is expired, sentence of 
 further imprisonment may be given, to commence from the termination of the first; (4 Burr. 
 2577. 1 Leach, 536;) or, judging by analogy to the case of transportation, the court may 
 allow the latter term to begin from the time of judgment, and so to be in part, concurrent 
 with the former. 1 Leach, 441. When the prisoner is in custody of the marshal in execu- 
 tion on a criminal sentence, the court will not, on an affidavit of illness, allow him the bene- 
 fit of the rules, as that would be to render the sentence invalid. 1 Stra. 196, 197. 2 Stra. 
 817, 843, 845, 1122. 
 
 Crimes punishable by imprisonment in a State Prison in New York. 
 
 In New York, the Revised Statutes, (4th ed. Banks, Gould & Co. 1852,) part 4, chap. 1, 
 titles 2, 3, 4, and 5, make the following acts punishable by imprisonment in a state prison, 
 viz. : killing a human being, without design to effect death, by the act, procurement or culpa- 
 ble negligence of any other person, while such other person is engaged in the perpetration 
 of any crime or misdemeanor not amounting to felony, or in an attempt to perpetrate any 
 such crime or misdemeanor; deliberately assisting another in the commission of self-murder; 
 and wilfully killing an unborn quick child, by any injury to the mother of such child, which 
 would be murder if it resulted in the death of the mother,— which acts being manslaughter 
 in the first degree. 
 
 Administering to any woman pregnant with a quick child, any medicine, drug or substance 
 whatever, or using, or employing any instrument or other means, with intent to destroy such 
 child, unless the same shall be necessary to preserve the life of the mother, or shall be ad- 
 vised by two physicians to be necessary for such purpose ; or unnecessarily killing another, 
 either, while resisting an attempt by such other person to commit any felony, or to do any 
 unlawful act, or after such attempt has failed — those being manslaughter in the second degree. 
 
 A person involuntarily killing a human being, by the act, procurement, or culpable neg-. 
 
SENTENCE OP IMPRISONMENT. 188 
 
 The court, in sentencing a defendant to imprisonment, might former- 
 ly have directed the prisoner to be kept in solitary confinement for the 
 
 ligence of another, while such other person ia engaged in the commission of a trespass or 
 other injury to private rights or property, or engaged in an attempt to commit such injury ; 
 a person navigating any boat or vessel for gain, wilfully or negligently receiving so many 
 passengers, or such a quantity of other lading, that by means thereof such boat or vessel sinks 
 or oversets, and thereby any human being is drowned or otherwise killed ; the owner of a 
 mischievous animal, knowing its propensities, wilfully suffering it to go at large, or keeping 
 it without ordinary care, and such animal while so at large or not confined, killing any hu- 
 man being, who takes all the precaution which the circumstances permit, to avoid such 
 animal ; and any physician, while in a state of intoxication, and without a design to effect 
 death, administering any poison, drug or medicine, or doing any other act, to another per- 
 son, which produces the death of such other person : — such person, owner and physician be- 
 ing deemed guilty of manslaughter in the third degree. 
 
 As to what is deemed manslaughter in the fourth degree, see Eevised Statutes, part 4, ch. 
 1, title 2, § 18 and 19. For homicide excusable and justifiable, see Eevised Satutes, vol. 2, 
 660. 
 
 Carnally and unlawfully knowing any female child under the age of ten years ; forcibly 
 ravishing any woman of the age of ten years or upwards ; carnally knowing any woman 1 
 above the age of ten years, without her consent, by administering to her any substance or 
 liquid, which produces such stupor, or such imbecility of mind or weakness of body, as to 
 prevent effectual resistance ; taking any woman unlawfully, against her will, and by force, 
 menace or duress, compelling her to marry him, or to marry any other person, or to be defiled ; 
 or taking away any female under the age of fourteen years, from her father, mother, guardian 
 or other person having the legal charge of her person, without their consent, either for the 
 purpose of prostitution, concubinage or marriage — which acts being called rape. 
 
 Cutting out, or disabling the tongue, putting out an eye, slitting the lip, slitting or destroy- 
 ing the nose, cutting off or disabling any member, with premeditated design, evidenced by 
 laying in wait for the purpose, or in any other manner ; or with intention to kill, or commit 
 any felony — these being mayhem. 
 
 Forcibly seizing or confining another, without lawful authority, inveigling or kidnapping 
 another, with intent, either to cause such other to be secretly confined or imprisoned in this 
 state against his will ; or to cause such other person to be sold as a slave, or in any way held 
 to service against his will — these being kidnapping. 
 
 Being accessory after the fact, to any kidnapping or confinement ; selling or in any man- 
 ner transferring for any term, the' services or labor of any black, mulatto, or other person of 
 color, who has been forcibly taken, inveigled or kidnapped from this state to any other state, 
 place, or country ; maliciously, forcibly or fraudulently leading, taking or carrying away, or 
 decoying or enticing away, any cbild under the age of twelve years, with intent to detain 
 and conceal such child from its parent, guardian, or other person having the lawful charge 
 of such child ; exposing any child under the age of six years, in any highway, street, field, 
 house or out-house, by the father, mother, or other person to whom the child has been con- 
 fided ; shooting at another, or attempting to discharge any kind of fire arms, or any air gun, 
 at another ,or assaulting and battering another by means of any deadly weapon, or by such 
 other means or force as is likely to produce deaith, with the intent to kill, maim, ravish, or 
 rob such other person, or in the attempt to commit any burglary, larceny or other felony, or 
 in resisting the execution of any legal process; administering or causing and procuring to be 
 administered, any poison to any human being with intent to kill such being, and which shall 
 have been actually taken by such being, whereof death shall not ensue ; mingling any poi- 
 son with any food, drink, or medicine, with intent to kill or injure any human being, or 
 wilfully poisoning any well, spring, or reservoir of water; and assaulting, with an intent to 
 commit any robbery, burglary, rape, manslaughter, or any other felony. 
 
 "Wilfully setting fire to, or burning any inhabited dwelling house, in the day time; and 
 
 73 
 
183—1 JUDGMENT. 
 
 whole, or any portion of the time,— in all cases within stat. 7 & 8 G. 4, 
 c. 29, (Peel's Act, larceny,) by sect. 4— in all cases within stat. 7 & 8 
 
 wilfully setting fire to, or burning in the night time, any shop, warehouse, or other building 
 not being the subject of arson in the first degree, but adjoining to, or within the curtilage of 
 any inhabited dwelling house, so that such house is endangered by such firing-such firing 
 being arson in the second degree. 
 
 Wilfully setting fire to, or burning in the day time, any shop, warehouse or other building, 
 which being committed in the night time would be arson in the second degree; wilfully set- 
 ting fire to, or burning in the night time, the house of another, not the subject of arson in 
 the first or second degree— any house of public worship, or any school house— any public 
 building belonging to the people of this state, or to any county, city, town, or village, or any 
 building in which are deposited the papers of any public officer— or any barn or grist min- 
 or any building erected for the manufactory of cotton or wollen goods, or both, or paper, iron 
 or other fabric— or any fulling mil], or any ship or vessel; and wilfully burning any building, 
 ship or vessel, or any goods, wares, merchandise, or other chattel, being at the time insured 
 against loss or damage by fire, with intent to prejudice the insurer, whether the same be the 
 property of the person setting fire, or of any other— these being arson in the third degree. 
 
 Wilfully setting fire to, or burning any dwelling house or building, ship or vessel, which 
 being done in the night time, would be arson in the third degree; wilfully setting fire to, or 
 burning in the day time, any saw-mill, any carding machine or building containing the same, 
 any stack of grain of any kind, or any stack of hay, not being the property of the person 
 setting fire, or any toll bridge, or any other public bridge"; and wilfully setting fire to or 
 burning, in the day or in the night time, any crop of grain growing or standing in the field, 
 or any nursery or orchard of fruit trees belonging to another — or any fence around any culti- 
 vated field belonging to another, — or the woods in any town, not belonging to himself, — or 
 any grass or herbage growing on any marshes or other lands not belonging to himself: — 
 these being arson in the fourth degree. 
 
 Breaking into and entering, in the night time, the dwelling house of another, in which 
 there is at the time some human being, with intent to commit some crime therein, either by 
 forcibly bursting or breaking the wall, or outer door, window, or shutter of a window of such 
 house, or the lock or bolt of such. door, or the fastening of such window or shutter ; or break- 
 ing in any other manner, being armed with some dangerous weapon, or assisted and aided 
 by one or more confederates, then actually present; or by unlocking an outer door by means 
 of false keys, or by picking the lock thereof: — this being burglary m the first degree. 
 
 Breaking into any dwelling house in the day time, under such circumstances as constitute 
 the crime of burglary in the first degree, if committed in the night time; breaking into any 
 dwelling house in the night time, with intent to commit a crime, but under such circum- 
 stances as do not constitute the offence of burglary in the first degree; entering into the 
 dwelling house of another by day or by night, in such a manner as not to constitute burglary 
 as above specified, with intent to commit a crime; being in the dwelling house of another 
 and committing a crime therein, breaking, in the night time, any outer door, window, or shut- 
 ter of a window, or any other part of such house, to get out of the same; entering the dwel- 
 ling house of another in the night time, through an open outer door or window, or other 
 aperture not made by him entering, and breaking any inner door of the same house, with 
 the intent to commit any crime; being lawfully in any dwelling house, and breaking, in the 
 night time, any inner door of the same house, with the intent of committing any crime : — 
 these being burglary in the second degree. 
 
 Breaking and entering, in the day or in the night time, any building within the curtilage 
 of a dwelling house, but not forming a part thereof, — or any shop, store, booth, tent, ware- 
 house, or other building, in which any goods, merchandise, or valuable thing is kept fpr use, 
 sale or deposite, with intent to steal therein, or to oommit any felony; and breaking and en- 
 tering into the dwelling house of another, in the day time, under such circumstances as con- 
 stitute the offence of burglary in the second degree, if committed in the night time: — these 
 being burglary in the third degree. 
 
SENTENCE OF IMPRISONMENT. 183 — 2 
 
 G, 4, c. 30, (Peel's Act, malicious injuries,) by sect. 27, — in all cases 
 within stat. 7 & 8 G. 4, c. 28, by sect. 9, — in all cases within stat. 11 Gr. 
 
 Forging, counterfeiting, and falsely altering any will of real or personal property, or any 
 deed or other instrument, being Or purporting to be the act of another, by which any right 
 or interest in real property shall be or purport to be transferred, conveyed, or in any way 
 changed or affected ; any certificate or endorsement of the acknowledgment by any person 
 of any deed or other instrument which by law may be recorded, made or purporting to have 
 been made by any officer duly authorized to make such certificate or endorsement; any cer- 
 tificate of the proof of any deed, will, or other instrument, which by law may be recorded, 
 made or purporting to have been made by any court or officer duly authorized to make such 
 certificate, with intent to defraud ; any certificate or other public security, issued or purport- 
 ing to have been issued under the authority of this state, by virtue of any law thereof ; any 
 bill of credit heretofore issued by or under the authority of the legislature of this state, or 
 purporting to have been so issued, by which certificate, bill or other public security the pay- 
 ment of any money absolutely, or upon any contingency, shall be promised, on the receipt 
 of any money, goods or valuable thing shall be acknowledged ; any certificate of any share, 
 right or interest in any public stock, created by virtue of any law of this state, issued or pur- 
 porting to have been issued by any public officer ; any other evidence of any debt or liability 
 of the people of this state, either absolute or contingent, issued or purporting to have been 
 issued by any public officer; or any endorsement or other instrument, transferring or pur- 
 porting to transfer the right or interest of any holder of such certificate, public security, bill 
 of credit, certificate of stock, evidence of debt, or liability, or of any person entitled to such 
 right or interest, with intent to defraud the people of this state, or any public officer thereof, 
 or any other person: — these being forgery in the first degree. 
 
 Forging or counterfeiting the great or privy seal of this state ; the seal of any public 
 office authorized by law; the seal of any court of record, including surrogate's seals ; or the 
 seal of any body corporate, duly incorporated by or under the laws of this state ; falsely mak- 
 ing, forging, or counterfeiting, any impression purporting to be the impression of any such 
 seal, with intent to defraud : falsely altering, destroying, corrupting or falsifying, any record 
 of any will, conveyance or other instrument, the record of which is by law evidence ; any 
 record of any judgment in » court of record, or any enrolment of any decree of a court of 
 equity ; the return of any officer, court or tribunal, to any process of any court, with intent 
 to defraud: falsely making, forging or altering any entry in any book of records ; any instru- 
 ment purporting to be any record or return, specified as above, with intent to defraud : any 
 officer authorized to take the proof or acknowledgment of any conveyance of real estate, or 
 of any other instrument which by law may be recorded, wilfully and falsely certifying that 
 any such conveyance or instrument was acknowledged by any party thereto, when in truth 
 no such acknowledgment was made ; or that any such conveyance or instrument was proved 
 when in truth no such proof was made : or counterfeiting any of the gold or silver coin, 
 which are current by custom or usage within this state : these being forgery in the second 
 degree. 
 
 Making or engraving, causing or procuring to be made or engraved, any plate in the simi- 
 litude or form of any promissory note, bill of exchange, draft, check, certificate of deposit, 
 or other evidence of debt, issued by any incorporated bank in this state, or by any bank in- 
 corporated under the laws of the United States, or of any state or territory thereof, or under 
 the laws of any foreign country or government, without the authority of such bank: having 
 or keeping in custody or possession, any such plate without the authority of such bank, 
 with intent of using or having the same used for the purpose of taking therefrom any im- 
 pression to be passed, sold or uttered : having or keeping in custody or possession, without 
 the authority of such bank, any impression taken from any such plate, with intent to have 
 the same filled up and completed for the purpose of being passed, sold or uttered : making 
 or causing to be made, or having in custody or possession, any plate upon which is engraved 
 any figure or words, which may be used for the purpose of falsely altering any evidence of 
 
188 — 3 JUDGMENT. 
 
 4 & 1 W. 4, c. 66, (Forgery Act,) by sect. 26,— in all cases within stat. 
 2 W. 4, c. 34, (Com,) by sect. 19,— in all cases within stat. 8 & 9 Vict. 
 
 debt issued by any such incorporated bank, with the intent of having the same used for 
 such purpose: selling, exchanging, or delivering for any consideration, any forged or coun- 
 terfeited promissory note, check, bill, draft or other evidence of debt or engagement, for the 
 payment of money absolutely, or upon any contingency, knowing the same to be forged or 
 counterfeited, with intention to have the same uttered or passed : offering any such note or 
 other instrument for sale, exchange or delivery for any consideration, with the like know- 
 ledge and with the like intention: or receiving any such note or other instrument upon a 
 sale, exchange, or delivery, for any consideration, with the like intent, and with the like 
 knowledge: these also being forgery in the second degree. 
 
 Having in possession any forged, altered or counterfeit negotiable note, bill, draft or other 
 evidence, of debt, issued or purporting to have been issued by any corporation or company 
 duly authorized for that purpose by the laws of the United States or of this state, or of any 
 other state, government or country, the forgery of which is above mentioned,, knowing the 
 same to be forged, altered or counterfeited; with the intention to utter the same as true or 
 false, or to cause the same to be uttered, with intent to injure or defraud— this subjecting to 
 the punishment of forgery in the second degree. 
 
 Falsely making, altering, forging or counterfeiting, with injurious or fraudulent intent, any 
 instrument or writing, being or purporting to be, any process issued by any competent court, 
 magistrate or officer; or being or purporting to be, any pleading or proceeding filed-or 
 entered in any court of law or equity; or being or purporting to be, any certificate, order or 
 allowance by any competent court or officer, or being or purporting to be, any licence or 
 authority authorized by any statute : or any instrument or writing, being or purporting to 
 be, the act of another, by which any pecuniary demand or obligation is, or purports to be, 
 created, increased, discharged, or diminished, or by which any right or property whatever, 
 are, or purport to be, transferred, conveyed, discharged, diminished or in any manner effected, 
 the degree of which offence is not above mentioned, whereby any person may be affected, 
 bound, or in any way injured, in his person or property — these being forgery in the third 
 degree. 
 
 Making with fraudulent intent, any false entry, or falsely altering any entry made, in any 
 book of accounts left in the office of the comptroller of this state, or in the office of the trea- 
 surer, or of the surveyor-general, or of any county treasurer, by which any demand or obli- 
 gation, claim right or interest, either against, or in favor of the people of this state, or any 
 county or town ; or any individual, is, or purports to be discharged, diminished, increased, 
 created, or in any manner affected: or making with fraudulent intent any false entry, or 
 falsely altering any entry made, in any book of accounts kept by any monied corporation with- 
 in his state, or in any book of accounts kept by any such corporation, or its officers, and deli- 
 vered or intended to be delivered, to any person dealing with such corporation, by which 
 any pecuniary obligation, claim or credit, is, or purports to be, discharged, diminished, in- 
 creased, created, or in any manner affected — these also being forgery in the third degree. 
 
 Having in possesion any forged er counterfeited instrument, the forgery of which is above 
 mentioned, except such as are enumerated as subjecting to the punishment of forgery in the 
 second degree, knowing the same to be forged, counterfeited or falsely altered, with inten- 
 tion to injure or defraud, by uttering the same as true or as false, or by causing the same to 
 be so uttered : or having in possession any counterfeit of any gold or silver coin which is at 
 the time current in the state, knowing the same to be counterfeited, with intention to de- 
 fraud or injure, by uttering the same as true or as false, or by causing the same to be so 
 uttered — these being forgery in the fourth degree. 
 
 Uttering and publishing as true, witli intent to defraud, any forged, altered or counterfeit- 
 ed instrument, or any couutorfeit gold or silver coin, the forging, altering or counterfeiting 
 of which, is above mentioned, knowing such instrument or coin to be forged, altered or 
 counterfeited. 
 
 Making, with injurious or fraudulent intent, any instrument in one's own name, intended 
 
SENTENCE OF IMPRISONMENT. 183—4 
 
 c. 25, (malicious injuries by fire, or explosive substances,) by sect. 11.; — 
 and in some other cases, which shall be mentioned under their proper 
 
 to create, increase, discharge, defeat or diminish any pecuniary obligation, right or interest, 
 or to transfer or effect any property whatever, and uttering or passing it, under the pretence 
 that it is the act of another who bears the same name. 
 
 Totally erasing or obliterating any instrument or writing, with intent to defraud, by which 
 any pecuniary obligation, or any right, interest or claim to property, is, or is intended to be, 
 created, increased, discharged, diminished or in any way affected. 
 
 Placing or connecting together different parts of several genuine instruments, so as to pro- 
 duce one instrument, with intent to defraud. 
 
 Falsely making, forging or counterfeiting any evidence of debt, issued, or purporting to 
 have been issued, by any corporation having authority for that purpose, to which is affixed 
 the pretended signature of any person as an agent or officer of such corporation. 
 
 Falsely representing or personating another, and in such assumed character, marrying 
 another ; becoming bail or surety for any party in any proceeding, civil or criminal, before 
 any court or officer authorized to take such bail or surety; confessing any judgment; ac- 
 knowledging the execution of any conveyance of real estate, or of any other instrument, 
 which by law may be recorded; or doing any other act in the course of a suit, proceeding 
 or prosecution, whereby the person so represented or personated may be made liable in any 
 event, to the payment of any debt, damages, costs, or sum of money, or his rights or interests 
 may in any manner be affected. 
 
 Falsely representing or personating another, and in such assumed character receiving 
 any money or valuable property of any description, intended to be delivered to the indivi- 
 dual so personated. 
 
 Fraudulently producing an infant, and falsely pretending it to have been born of parents 
 whose child would be entitled to a share of any personal estate, or to inherit any real estate, 
 with intent of intercepting the inheritance of any such real estate, or the distribution of any 
 such personal property, from any person lawfully entitled thereto. 
 
 Substituting and producing to the parent or guardian of an infant under the age of six 
 years, which has been put out for nursing, education or any other purpose, another child in 
 the place of the one so put out for nursing or education, with intent to deceive the parent 
 or guardian of such child. 
 
 By colour of any felse taken or writing, or by any other false pretence, designedly obtain- 
 ing the signature of any person to any written instrument, or any money, personal properly, 
 or valuable thing, with intent to cheat or defraud another. 
 
 Feloniously taking the personal property of another from his person, or in his presence, 
 and against his will, by violence to his person, or by putting such person in fear of some 
 immediate injury to his person : — this being robbery in the first degree. 
 
 Feloniously taking the personal property of another in his presence, or from his person, 
 which shall have been delivered or suffered to be taken, through fear of some injury to his 
 person or property, or to the person of any relative or member of his family, threatened to 
 be inflicted at some different time, which fear having been produced by the threats of the 
 person so receiving or taking such property : — this being robbery in the second degree. 
 
 Knowingly sending,, delivering or making, and for the purpose of being sent or delivered, 
 parting with the possession of, any letter or writing, with or without a name subscribed 
 thereto, or signed with a fictitious name, or any letter, mark or other designation, threatening 
 therein to accuse any person of any crime, or to do any injury to the person or property of 
 any one with a view or intent to extort or gain any money or property of any description, 
 belonging to another. 
 
 Any clerk or servant of any private person, or pf any co-partnership, (except, apprentices 
 and persons within the age of eighteen years,) or any officer, agent, clerk or servant of any 
 incorporated company, embezzling, or converting to his use, taking, making way with, or 
 secreting, with intent to embezzle or to convert to his own use, without the assent of his 
 
183 — 5 JUDGMENT. 
 
 titles. But by stat. 1 Yict. c. 90, s. 5, in all cases thereafter, it shall 
 not be lawful to direct that any offender shall be kept in solitary con- 
 master or employers, any money, goods, rights in action, or other valuable security or effects 
 whatever, belonging to any other person, which shall have come into his possesion, or under 
 his care, by virtue of his employment or office. 
 
 Embezzling any evidence of debt negotiable by delivery only, and actually executed by 
 the master or employer of any such clerk, agent, officer or servant, but "not delivered or 
 issued as a valid instrument. 
 
 Buying or in any way receiving any money, goods, right in action, or any valuable secu- 
 rity or effects whatever, knowing the same to have been embezzled, taken or secreted, con- 
 trary to the above provisions. 
 
 A carrier for hire, without the assent of his employer, taking, embezzling or converting 
 to his own use, or making way with, or secreting, with intent to embezzle or convert to his 
 own use, goods, money, rights in action, property or effects, or any of them, in the mass as 
 they were delivered v without breaking the trunk, box, pack, or other thing in which they 
 or any of them are contained, and before delivering of the articles at the place or to the per- 
 son entitled to receive them. 
 
 Feloniously taking and carrying away the personal property of another, of the value of 
 more than twenty-five dollars. 
 
 Severing from the soil of another, any produce growing thereon, of the value of more 
 than twenty-five dollars, or severing from any building, or from any gate, fence, or other 
 railing or enclosure, any part thereof, or any material of which it is formed, of the like 
 value, and taking and converting the same, with intent to eteal the same. 
 
 Stealing and carrying away, any record, paper or proceedings of a court of justice, filed 
 or deposited with any' clerk or officer of such court, or any paper, document or record filed 
 or deposited in any public office, or with any judicial officer. 
 
 Every officer having the custody of any record, paper or proceeding specified in the pro- 
 ceeding paragraph, and stealing or fraudulently taking away or withdrawing or destroying 
 any such document or paper, filed or deposited with him. 
 
 . Buying or receiving in any manner, upon any consideration, any personal property of any 
 value whatsoever, that has been feloniously taken away or stolen from another, knowing 
 the same to have been stolen. 
 
 Wilfully and corruptly swearing, testifying or affirming falsely, ,to any material matter, 
 upon any oath, affirmation or declaration, legally administered, in any matter, cause or pro- 
 ceeding depending in any court of law or equity, or before any .officer thereof; in any case 
 when an oath or affirmation is required by law, or is necessary for the prosecution or defence 
 of any private right, or for the ends of public justice ; or in any matter or proceeding before 
 any tribunal or officer created by the constitution or by law, or where any oath may be law- 
 fully required by any judicial, executive, or administrative — this -bemgpe) jury. 
 
 Unlawfully and corruptly procuring any witness, by.auy means whatsoever, to commit 
 any wilful and corrupt perjury, in any cause, matter or proceeding, in or concerning which, 
 such witness may be legally sworn and examined— this Ijeing subornation of perjury. 
 
 Attempting, by the offer of any valuable consideration, unlawfully and corruptly to pro- 
 cure any other to commit wilful and corrupt perjury, as a witness, in any cause, matter or 
 proceeding, in or concerning which such other person might by law be examined as a wit- 
 ness. 
 
 Offering or giving to the governor or lieutenant governor, or to any member of the senate 
 or assembly of this state, after his election as such member, and either before or after he has 
 qualified and taken his seat; to any commissioner of the land-office, or of the canal fund, or 
 any canal commissioner; to the comptroller, surveyor-general, secretary of state or attorney- 
 general; to any judge of any court of record, or to any judicial pfficer whatever; any money, 
 goods, right in action or other property, with intent to influence his vote, opinion or judg- 
 
SENTENCE OP IMPRISONMENT. 183 — 6 
 
 fmement for any longer period than one month at a time or three 
 months in a year. Lastly for all offences for which a woman, before 
 
 ment on any question, matter, cause or proceeding, which may be then pending, or may by 
 law be brought before him in his official capacity — this being bribery. 
 
 Every officer in the last paragraph enumerated, accepting any such gift; or any promise or 
 undertaking to make the same, under any agreement that his vote, opinion or judgment shall 
 be given in any particular manner, or upon any particular side of any question, matter, cause 
 or proceeding then pending, or which may by law be brought before him in his official ca- 
 pacity. 
 
 Any juror, arbitrator or referee, taking any thing to give his verdict, award or report, or 
 receiving any gratuity or gift whatever, from any party to a suit, proceeding or prosecution, 
 for the trial of which such person has been drawn or summoned, or for the hearing of which 
 he has been chosen an arbitrator or appointed a referee — these being corruption. 
 
 Corrupting, or attempting to corrupt, any person drawn or summoned as a juror, appointed 
 a referee, or chosen an arbitrator, by giving or offering to give any gift or gratuity whatever, 
 with intent to bias the mind of such juror, referee or arbitrator, in relation to any cause or 
 matter, which may be pending in the court to which such juror has been summoned, or in 
 which such referee or arbitrator has been chosen or appointed. 
 
 Conveying into a state prison, jail or other place of confinement, any disguise, instrument, 
 arms or other thing, proper or useful to aid any prisoner in his escape, with intent thereby 
 to facilitate the escape of any prisoner, lawfully committed to, or detained in such prison, jail 
 or place, for any felony whatever, whether such escape be effected or attempted, or not. 
 
 Aiding and assisting, by any means whatever, any prisoner lawfully detained in a state 
 prison, or in any jail or place of confinement, for any. felony, to escape therefrom, whether 
 such escape be effected or not; or forcibly rescuing any prisoner held in legal custody upon 
 any criminal charge. 
 
 Aiding and assisting, by any means whatever, any prisoner lawfully committed to any jail 
 or place of confinement, in execution of any conviction for any criminal offence other than a 
 felony, whether such escape be effected or not ; or conveying into such jail or place of con- 
 finement, any disguise, instrument, arms or other thing, proper or useful to facilitate the 
 escape of any prisoner so committed, whether such escape be effected, or attempted or not. 
 
 Aiding or assisting any prisoner in escaping or in attempting to escape from the custody of 
 any sheriff, coroner, marshal, constable or other officer or person who has the lawful charge 
 of such prisoner, upon any criminal charge. 
 
 Any sheriff, jailer, coroner, marshal, or constable, wilfully and corruptly refusing to exe- 
 cute any lawful process directed to them, or any of them, requiring the apprehension or con- 
 finement of any person charged with a criminal offence; omitting to execute such process, 
 by which such person shall escape ; refusing to receive in any jail under his charge, any 
 offender lawfully committed to such jail, and ordered to be confined therein on any criminal 
 charge or conviction, or on any lawful process whatever; suffering any offender lawfully 
 committed to his custody, to escape and go at large, or receiving any gratuity or reward, or 
 any security or engagement for the same, to procure, assist, connive at, or permit any priso- 
 ner in his custody, on any civil process, or any criminal charge or conviction, to escape, 
 whether such escape be attempted, or effected, or not. 
 
 Any prisoner confined irf a state prison for any term less than for life, breaking such pri- 
 son and escaping from thence ; or any person confined in a county jail upon any conviction 
 for a criminal offence, breaking such jail and escaping from thence. 
 
 Being lawfully imprisoned in a state prison for any term less than life, and attempting, by 
 force or violence to any person, to escape from such prison, whether such escape be effected 
 or not ; or being lawfully imprisoned in a county jail, for any cause whatever, and forcibly 
 breaking the prison, with intent to escape therefrom, or attempting, by any force or violence 
 to escape from such prison, although no escape be effected. 
 
 Fighting a duel with any deadly weapon, although no death ensue ; challenging another 
 to fight such duel; sending- or delivering any written or verbal message, purporting or in- 
 
183 7 JUDGMENT. 
 
 stat. 1 Gr. 4, c. 57, might be sentenced to be -whipped, the court may- 
 order her to be confined to hard labor for any time not exceeding six 
 
 tended to be such challenge; accepting any such challenge or message; knowingly carrying 
 or delivering any such challenge or message ; being present at the time of fighting any duel 
 with deadly weapons, either as second, aid or surgeon ; or advising or giving any counte- 
 nance or assistance to such duel. 
 
 Leaving this state for the purpose of eluding the operation of the laws respecting duelling 
 or challenges to fight, with intent of giving or receiving any challenge by law prohibited, or 
 of aiding or abetting in giving or receiving such challenge ; and then giving or receiving any 
 such challenge, or aiding and abetting in giving and receiving the same. 
 
 Having a husband or wife living, and marrying any other person, whether such other per- 
 son be married or single — except in the cases specified in the next paragraph :— this being 
 bigamy. 
 
 The last paragraph does not extend to the following persons or cases: 
 
 1. To any person by reason of any former' marriage, whose husband or wife, by such 
 marriage, has been absent for five successive years, without being known to such person, 
 within that time, to be living : nor, 
 
 2. To any person, by reason of any former marriage, whose husband or wife by such mar- 
 riage, has absented himself or herself from his wife or her husband, and has been continually 
 remaining without the United States, for the space of five years together: nor, 
 
 3. To any person, by reason of any former marriage, which has been dissolved by the de- 
 cree of a competent court, for some cause other than the adultery of such person: nor, 
 
 4. To any person, by reason of any former marriage, which has been pronounced void by 
 the sentence or decree of a competent court, on the ground of the nullity of the marriage 
 contract: nor, 
 
 6. To any person, by reason of any former marriage, contracted by such person within the 
 age of legal consent, and which has been annulled by the decree of a competent court : nor, 
 
 6. To any person, by reason of any former marriage with a husband or wife, who has been 
 sentenced to imprisonment for life. 
 
 An unmarried person knowingly marrying the husband or wife of another, in any case in 
 which such husband or wife would be punishable"; or persons being within the degrees of 
 consanguinity, within which marriages are declared by law to be incestuous and void, inter- 
 marrying with each other, or committing adultery or fornication with each other. 
 
 Eemoving the dead body of any human being from the grave or other place of interment, 
 for the purpose of selling the same, or for the purpose of dissection, or from mere wanton- 
 ness; purchasing or receiving the dead body of any human being, knowing the same to have 
 been disinterred contrary to the provisions of the law; or opening a grave or other place of 
 interment with intent to remove the dead body of any human being, for the purpose of sell- 
 ing the same, or for the purpose of dissection, or with intent to steal the coffin or any part 
 thereof, or the vestments or other articles interred with any dead body. 
 
 Wilfully administering any poison to any horse, cattle, or sheep, or maliciously exposing 
 any poisonous substance, with intent that the same should be taken or swallowed by any 
 horse, cattle or sheep. 
 
 Having a knowledge of the actual commission of any offence punishable by death, or by 
 imprisonment in a state prison for life, and taking any money or property of another, or any 
 gratuity or reward, or any engagement or promise therefor, upon any agreement or under- 
 standing, express or implied, to compound or conceal any such crime, or to abstain from any 
 prosecution therefor, or to withhold any evidence thereof. 
 
 Having a knowledge of the actual commission of any offence punishable by imprison- 
 ment in a- state prison for any other term than for life, and taking any money, or property of 
 another, or any gratuity or reward, or any engagement or promise therefor, upon any agree- 
 ment or nnderstanding, express or implied, to compound or conceal any such crime, or to 
 abstain from any prosecution therefor, or to withhold any evidence thereof. 
 
SENTENCE OE IMPRISONMENT. . 183—8 
 
 calendar months nor less than one month, or may pass sentence of 
 solitary confinement for any time not exceeding seven days at .any- 
 one time, in lieu of the sentence to be publicly or privately ■whip- 
 ped.(a)[2] 
 
 (a) 1 G. 4, o. 5T, s. 3., 
 
 Committing the detestable and abominable crime against nature, either with mankind or 
 with a beast. 
 
 In New York, the revised statutes provide that, when any person is convietedof two or 
 more offences before sentence haa been pronounced upon him for either offence, the infpri- 
 sonment to which he shall be sentenced upon the second or other subsequent conviction, 
 shall commence at the termination of the first term of imprisonment to which he shall be 
 adjudged, or at the termination of the second term of imprisonment, as the case may be. 
 2 R. S. 100, § 11. 
 
 "Whenever, by statute, an offender is declared punishable by imprisonment in a state pri- 
 son for a term not less than any specified number of years, and no limit to-the duration of 
 such imprisonment is declared, the .court may sentence the defendant to imprisonment for 
 life, or for any time not less than that specified. But no pe*rson can, in 'any case, be sen- 
 tenced to imprisonment in a state prison for any term less than two years. 2 R. S. 100, § 
 12. There is an exception to this general rule, however, to be found in the "Act to pre- 
 serve the purity of elections." Laws of 1839, p. 365. By the fourteenth section of that 
 act, voting or offering to vote, in this state, by an inhabitant of. another state, is deolared a 
 felony, and the person so voting or offering to vote is liable, on conviction, to be imprisoned 
 in a state prison for a period not exceeding one year, at the discretion of the court. 
 
 A sentence of imprisonment in a state prison for any term less than for life, suspends all 
 the civil rights of the person so sentenced, and forfeits all publice offices and private trusts, 
 authority, or power, during the term of such imprisonment. . And a person ■ sentenced to 
 imprisonment, in a state prison for life, shall, thereafter, be deemed civilly dead. 2 R. S. 
 TOl, §§ 19, 20. 
 
 [2] Massachusetts. — In every case, in which the punishment of imprisonment in the 
 state prison is awarded against any convict, the form of the sentence shall be, that he be 
 punished by confinement at hard labor, and he shall also be sentenced to solitary imprison- 
 ment, for such term as the court shall direct, not exceeding twenty days at one. time ; and. in 
 the execution of such sentence, the solitary imprisonment shall precede the punishment by 
 hard labor, unless the court shall otherwise order. 
 
 Any person, convicted of an offence, punishable_wholly or in part by imprisonment in the 
 eounty jail, may be sentenced to suffer such imprisonment in the house of correction, in- 
 stead of the jail, or to suffer solitary imprisonment and be confined at hard_labor, either in. 
 the jail or the house of correction. 
 
 If any boy, under the .age of sixteen years, shall.be convicted of an offence, which is,- 
 punishable by imprisonment in the state prison, such convict not having been before sen. 
 tenced to imprisonment in the state prison in this state, or in any state prison or penitentiary 
 within the United States, the court, if sentence of solitary imprisonment and confinement 
 at hard labor, for a term not exceeding three years, is awarded against such cqnyict, and 
 also when the sentence of confinement, at hard labor, for ,any term of time, is awarded 
 against a female convict of whatever age, shall order such sentence to be executed, either 
 in the house of correction or in the county jail,' and not in the state prison ; but the provi- 
 sions of this and the preceding section shall not prevent the courts in the city of Boston, 
 from sentencing such convicts to confinement in any place, in which juvenile offenders may 
 be by law confined. 
 
 , When the punishment of solitary imprisonment, and confinement at hard labor for a term 
 hot exceeding three' years, shall.be awarded/by the court against any convict, who has not 
 been before sentenced to the like punishment, by any court in this state, or within the Uni- 
 
 74 
 
183—9 JUDGMENT. 
 
 ted States, such sentence may be executed, either in the house of correction, or'in the county 
 jail, or in the state prison. 
 
 When any convict shall be sentenced to solitary imprisonment and bard labor, in any 
 house of correction or jail, the master or keeper thereof shall execute such sentence of sol- 
 itary imprisonment, by confining the convict in one of the cells, if there be any in such 
 house of correction or jail, and if there be none, then in the most retired and solitary part 
 of such house or jail; and, during the timo of solitary imprisonment, such convict shall be 
 fed with bread and water only, unless other food shall be necessary for the preservation of 
 his health: No intercourse shall be allowed with any convict in solitary imprionment, ex- 
 cept for the conveyance of food, and other necessary purposes, unless some minister of the 
 gospel shall be disposed to visit him, in the manner hereafter provided. 
 
 fi.s soon as the term of solitary imprisonment shall have expired, the master or keeper 
 shall furnish the convict with tools and materials, or with other means, to work in any suita- 
 ble manner, in which Tie can be usefully or profitably employed, eitherin the said house of 
 correction or jail, or within the close yard thereof; such convict may, if necessary, be con- 
 fined by a log and chain, or in such other manner as- shall prevent his escape, without un- 
 necessarily inflicting bodily pain, or interrupting his labor; the overseers of the house of 
 correction,, or, when such punishment is inflicted in the jail the sherifTof the county, shall 
 oversee the execution of all such sentences. Rev. Sts. of Mass. pp. 182, 183, sees. 8, 11, 
 18, 19, 2Q, 21. 
 
 New York. — The court before which any person shall be convicted, of an offence pun- 
 ishable by imprisonment in a county jail, may sentence such person to be imprisoned in a 
 solitary cell in such jail, if any such be erected ; but such imprisonment shall in no case ex- 
 ceed thirty days in the whole. Rev. Sts. of N. T., (4th edv, Banks, Gould & Co., 1852,) p. 
 881, sec. 56. 
 
 Maine. — All punishment in the state prison, by imprisonment, shall be by confinement to 
 hard labor, and not by solitary imprisonment ;' but solitaryjmprisonment may be used as a 
 prison discipline, for the government and good order of the convicts, as hereinafter men- 
 tioned. Rev. Sts. of Maine, p. 128, sec. 2. 
 
 If any convict, sentenced to the state prison for life, shall assault any officer or other per- 
 son employed in the government thereof, or shall break or escape therefrom, or forcibly at- 
 tempt so to do, he may be punished, upon conviction thereof in the supremo judicial court, 
 by solitary imprisonment in the state prison not more than one year, and be afterwards held 
 in custody on his former sentence. . 
 
 If any convict, sentenced to the state prison for a'limited term, shall assault any officer or 
 other person employed in the government of said prison, or shall break or escape therefrom, 
 or forcibly attempt so to do,' he maybe punished, upon conviction thereof in the supreme ju- 
 dicial court, by solitary confinement in the state prison, not more than three months, to pre- 
 cede the fulfilment of any former sentence, and at the discretion of the court may be further 
 punished by confinement to hard labor, for a limited period or during life ; to commence after 
 iis solitary confinement, or the completion of his former sentence. 
 
 Every convict, sentenced to solitary confinement, as mentioned in the two preceding sec- 
 tions, or on whom it is inflicted as a punishment for the violation of the rules and regula- 
 tions of the prison, shall be confined in a solitary cell ; and during such confinement shall be 
 fed on bread and water only, unless the physician shall certify to the warden, that the health 
 of such convict requires other diet. Rev. Sts. of Maine, p. 136, sees. 41, 42, 43. 
 
 Ojiio. — That in all cases, when any person shall be convicted of any offence by this act 
 declared criminal, and made punishable by imprisonment in the penitentiary, the court shall 
 declare in their sentence, for what period of time, within the respective periods presented 
 ■ by law, such convict shall be imprisoned, at hard labor, in the penitentiary; and shall, more- 
 over, determine and deolaro in their sentence, whether any, and if any, for what period of 
 time such convict shall bo kept in solitary confinement in the cells of the penitentiary, with- 
 out labor; and shall render judgment against such convict for the costs of prosecution, and 
 award execution thereon, against the goods and chattels, lands and tenements of said con- 
 vict. Rev. Sts. of Ohio, p. 238. sec. 39. 
 
HARD LABOR. 183—10. 
 
 {d) Hard labor. 
 
 For all offences within stat. 7 & 8 Gr. 4, c. 28, for which imprison- 
 ment may be awarded, the court may sentence the offender either to 
 be imprisoned only, or to be imprisoned and kept to hard labor, in the 
 common jail or house of correction, as to the court in its discretion 
 shall seem meet.(a) And the same, as to all the offences within stat. 7 
 & 8 G. 4, c. 29, (Peel's Act, larceny,) by sect 4, — as to all'the offences 
 within stat. 7 & 8 Gr. 4, c. 30, (Peel's Act, malicious injuries,) by sect. 
 27,— as to all offences within stat. 11 Gr. 4 & 1 W. 4, c. 66, (Forgery 
 Act,) by sect. 26,- — as to all offences within stat. 2 W. 4, c. 34, (Coin,) 
 by sect. 19, — as to all offences within stat. 8 & 9 Vict. c. 25, (malicious 
 injuries by fixe, or explosive substances,) by sect. 11. So, a woman, 
 instead of being whipped, may be sentenced to be confined to hard la- 
 bor in the common jail or house of correction, for any time not exceed- 
 ing six' months, nor less than one in lieu of the sentence to be publicly 
 or privately whipped. (b) 
 
 Also, by stat. 3 G. 4, c. 114^ hard labor, as well as imprisonment, 
 may form part of the sentence upon persons convicted of any of the 
 following misdemeanors : — any attempt to commit a felony, — any riot, 
 - — keeping a common gaming house, a common bawdy house, 
 or a common ill-governed *and disorderly house, and wilful [*184] 
 and corrupt perjury and subornation of perjury (when 'pun- 
 ished bj imprisonment.) The statute mentions some other offences .: 
 
 \a) U8G.4.C. 28, s. 9. (i) 1 a. 4, 0. 57, s. 3. 
 
 Michigan. — In Michigan, murder in the first degree is punished by solitary confinement in 
 the state prison, for life. Rev. Sts. of Mich-, oh. 153, sec. 1. 
 
 Th statute further provides that the several boards of supervisors, shall cause to be pre- 
 pared within the jails of the respective counties, at the expense of such' counties, so many 
 solitary cells, for the reception of convicts who may be sentenced to punishment therein, as 
 they may deem necessary* Rev. Sts. of Mich. eh. 14, sec. 19. .. , 
 
 Wisconsin. — In every case in which the punishment^of. imprisonment in the state prison 
 is- awarded against any convict, the form of the sentence shall be, that he be punished by 
 confinement at hard labor; and he shall also be sentenced to solitary imprisonment "for such 
 term as the court shall direct, not exceeding twenty days at one time : and in the execution 
 of such punishment the solitary imprisonment shall precede the punishment by hard labor 
 unless the. court shall otherwise order. Rev. Sts. of Wis. p. 730, sec- 5. 
 
 Whenever any person shall be duly sentenced to solitary imprisonment, and confinement 
 at hard labor in the state prison, or either of them", the sheriff of the proper county is re- 
 quired to execute such sentence of "solitary imprisonment until" a suitable state prison shall 
 be provided, by confining such*conviet in one. , of the'cells of the jail, or if there be no suoh 
 cell, then in the most retired and solitary part of the jail ; and during the time of such soli- 
 tary imprisonment, the convict shall be fed with bread and water only, unless ojher food 
 should be necessary for the preservation of his health ; and no intercourse shall be allowed 
 with such copvict during such confinement, except for the conveyance of food and other 1 
 necessary purposes. Rev. Sts. of W'is- 737., sec. 13, 
 
184 JUDGMENT. 
 
 but as far as it respects them it was repealed by stat. 7 & 8 Gr. 4, c. 27, 
 S. 1, and 9 Gr. 4, c. 31, s. 1. 
 
 And lastly, by stat. 14 & 15 Vict. c. 100, s. 29, whenever any person 
 shall be convicted of any one of the offences following, as an indictable 
 misdemeanor ; that is to say, — any cheat or fraud punishable at common 
 law ; — any conspiracy to cheat or defraud, or to extort money or goods 
 or falsely to accuse of any crime, or to obstruct, prevent, pervert, or 
 defeat the course of public justice ;■ — any escape or rescue from lawful 
 custody on a criminal charge ;— any public and indecent exposure of 
 the person; any indecent assault, or any assault occasioning actual 
 bodily harm ; — any attempt to have carnal knowledge of a girl under 
 twelve years of age ; — any public selling, or exposing for public sale 
 or to public view, of any obscene book, print, picture, or other indecent 
 exhibition :■ — it shall be lawful for the court to sentence the offender to^ 
 be imprisoned for any term now warranted by-law, and also to be kept 
 to hard labor during the whole or any part of such term of imprison- 
 ment. 
 
 There are also several other statutes, which specifically assign hard 
 labor, as well as imprisonment, as a punishment for certain offences, 
 which I shall have occasion to mention when I come'to treat of those 
 offences, in the course of the work.[l] 
 
 (e) Wliipping. ■ 
 
 Where imprisonment forms part of the punishment, male offenders 
 may- also be sentenced to be once, twice, or thrice publicly or privately 
 whipped, if the court shall think fit, in the following cases : — for of- 
 fences against stat. 7 & 8 Gr..4 r c. 28, by sects. 8, 11, — for most of the 
 offences in sliat. 7 & 8 G. 4, c. 29 (Peel's Act, larceny,) and in stat. 7 & 
 8 Gr. 4, c. 30 (Peel's Act, malicious injuries,) and for some of the offen- 
 ces in stat. 9 G. 4,. c. 31, (offences against the person.) By stat. ,8 & 9 
 Yict. c. 25, (malicious injuries by fire, or explosive substances,)- it is en- 
 acted by sect. 9, that every male person under the age of eighteen years, 
 who shall be convicted of any offence under this Act, or who shall be 
 convicted of feloniously setting fire to any building, vessel, or mine, or 
 to. any stack or. steer, — -shall be liable, at the discretion of the court 
 before which he shall be convicted, in addition , to any other sentence 
 which' may be passed upon him, to be publicly or privately whipped in 
 such manner and as often, not exceeding thrice, as the court shall direct. 
 And as to larceny, or offences punishable as lariJeny, by juvenile offend- 
 ers, we have seen(a) that they may be punished summarily by iinpris- 
 
 (a) Ante, p. 59. 
 
 [1] For the offences in which liard labor ia imposed on the convict, in the several states, 
 see the Revised Statutes of the states respectively. 
 
whipping. 184—1 
 
 onment, or imprisonment and harcLlabor, or fine, or if a male 
 (not exceeding the age of fourteen years,)(a) *by being once [*185] 
 privately whipped, either instead of, or in addition to, such im- 
 prisonment, or imprisonment and hard labor.(i) 
 
 But sentence of whipping, public or private, shall not be passed upon 
 a female, for any offence whatever ;(c) but instead thereof, the court or 
 justice of the' peace before whom they shall be tried or convicted, may 
 pass sentence of confinement to hard labor in the common jail or house' 
 of correction for any time not exceeding six months or less than one, — ■ 
 or of solitary confinement therein for any time not exceeding seven 
 days at any one time,— in lieu of the sentence of being publicly or pri- 
 vately whipped.(d)[l] 
 
 (a) 13&'l4 Viot. o. 31, 'a. 1. r (c) 1 G. 4, a hi; s. 2. 
 
 (6) 10 & ] 1 Vict. o. 82, s. 1. (d) Id. s. 3. 
 
 [1] The punishment of whipping -was inflicted at common law, on persons of inferior condi- 
 tion, who were guilty of petit larceny and other smaller offences. Com. Dig. Tumbrel, C. 
 But it seems that, in the earliest periods, by the usage of the Star Chamber, it was never to 
 be inflicted on a gentleman. 2 Rushw. 468 ; Com. Dig. Tumbrel, C. And though it was 
 inflicted, with great cruelty, on Titus Oates, on his conviction of perjury, his sentence was 
 afterwards declared to be oppressive and illegal. 4 Harg. St. Tr. 106. This punishment 
 seems first to have been introduced into the statute law, as a mode of allowing clergy. As 
 women convicted of simple felony, were anciently liable to suffer death, (the 21 Jac. 1, c. 6,) 
 allowed-, that when convicted of larcenies under the value of ten shillings, they should, in- 
 stead of receiving judgment to die, be sentenced to be whipped, stocked, or imprisoned for 
 any period not exceeding a year. But now, by (1 Geo. 4, c. 51,) the whipping of females is 
 abolished, and instead thereof imprisonment or solitary confinement may be inflicted. And, 
 when by the (19 Geo. 3, c. 14, s. 3,) the ignominy of branding in the hand was abolished, 
 the court were empowered in its room, in every case except that of manslaughter (and now 
 in that case,) (by 3 Geo. 4, c. 38, the offender in manslaughter may be transported or impri- 
 soned,) to order the offender to be publicly or privately whipped, not more than three times 
 for the same offence. At the same time, in order to prevent collusion, it was directed that 
 every private whipping should .take place in the presence ofHhree persons. 
 
 "Whipping for public offences, was formerly practiced in Pennsylvania. Whipping or 
 pillory was the usual punishment on a conviction for an infamous crime. By the act of 
 1790, it was the intention of the legislature to abolish whipping and the pillory, by the sub- 
 stitution of confinement at hard labor ; and to subject to this punishment all those who were 
 before the subjects of corporal punishment. 5 Serg. & Bawle Rep. 466. The pillory has 
 long since been abolished in Pennsylvania. M'Kinney's Am. Mag. p. 632. 
 
 Tie punishments of. the pillory and the tumbrel, are of very early origin ; they are said, 
 indeed, to have been used even in the times of~the Saxon Heptarchy. 3 Inst. 219. The 
 former is derived from \ the Pilastre, and signifies a pillar or column ; and as it is a wooden 
 machine in which the neek of the culprit is inserted, . it was called in old- law Latin " Collis- 
 trigium," from that circumstance. Id. ibid. ' The latter, which -is now obsolete, originally 
 signified'a dung-cart, and was used as another means of exposure. Id. ibid. According to some 
 authorities, it seems to have been synonymous with the trebutchet or ducking stool, .which 
 was used as a punishment for. scolding woman. Com. Dig. Tumbrel, A. Burn, J. -Pillory 
 and Tumbrel.' Williams, J". Pillory and Tumbrel. The. stocks, formerly called fureae, seem 
 to be of equal antiquity. Com. Dig. Tumbrel, A. These instruments; of correction were, 
 by common law, to be erected and maintained by the lord of every leet, who might lose the 
 liberty by default, (Cro. Eliz; 6£)3 ; Com. Dig. Tumbrel, A.) or be fined for his neglect to the 
 
185 JUDGMENT. 
 
 (/) Punishment for felony. 
 
 In most cases of felony, created or made punishable by statute, the 
 statute states the punishment, and the sentence must accord with it. 
 But there are, and may be hereafter, some offences made felony by 
 statute,, for -which no punishment has been Qr may be specially provided ; 
 and in such cases the offender shall be liable, at the discretion of the 
 court, to be transported beyond the seas for the term of seven years, 
 or to be imprisoned (with or without hard labor,)(a) for any term not 
 exceeding two j^ears, and if a male, to be once, twice, or thrice publicly 
 or privately whipped (if the court shall think fit,) in addition to such 
 imprisonment.(5) [2] 
 
 As to the punishment for" a subsequent felony : — by stat. 7 & 8Jur. 4, 
 c. 28, s. 11 , if any person shall be convicted of any felony, not punisha- 
 ble with death, committed after a previous conviction for felony, — such 
 person shall on such subsequent conviction, be liable, at the discretion 
 of the court, to be transported beyond the seas for life, or for any term 
 not less than seven years, or to be imprisoned (with or without hard 
 labor,)(c) for any term not exceeding four years, and if a male, to be 
 once, twice, or thrice publicly or privately whipped (if the court shall 
 think fit,) in addition to such imprisonment. [3] . 
 
 (a) 1 G. 4, o. 57, s. 9. (c) 7 & 8 G. 4, o. 28, s. 9. 
 
 (6) 7 & 8 G. 4, u. 28, s. 8. 
 
 king. Com. Dig. Tumbrel, A. And by the 51 Hen. 3, st. 6, s. 2, a pillory of convenient 
 strength is to bo maintained in every town as an appendage to the market. And by 51 
 Edw. 1 , de pistoribus, it was further directed- to be of sufficient strength, in order that exe- 
 cution might be done without peril to the body of the offender. 
 
 Lambert who first published his treatise on the office of justice of the peace in* the year 
 1610, states that corporal punishments are either capital or not capital — that capital are inflic- 
 ted " sundry ways ; as by hanging, burning, boiling, pressing ; not capital, are of divers 
 sorts, as cutting off the hand or ear, burning or branding the hand, face, shoulders, whipp- 
 ing, imprisoning, "stocking, sitting in the pillory, or On the cu'eking stool." 
 
 In England, as recently as the 2 2d of Hen. 8, an act .passed for the punishment of one 
 House, a cookj who had poisoned seventeen persons of the family of the Bishop of Rochester, 
 two of whom died. This was made, by law, treason, and he'was ordered to be thrown into 
 toiling water ; the idea of which punishment, was suggested by his being a cook ! Such 
 were the barbarous institutions of the age. To boil a cook, was quite a royal joke. See 
 James v. Com. 12 Serg. & Rawle Rep. 236, note. 
 
 [2] In American law, the very word felony denotes that the offence is punishable, by 
 deaf i or imprisonment. See Statutes of the States, passim. 
 
 [3] For the effect of a second convietion for the same offence, in different cases, in Mas- 
 sachutetts, See Rev. Sts. of Mass!, Tits. Counterfeiting, Forgery, Larceny, Lotteries, Drunken- 
 ness. 
 
 New York. — The New York Revised Statutes provide, if any person convicted of any 
 offence punishable by imprisonment in a state prison, shall be discharged, either upon being 
 pardoned or upon the expiration of his sentence, and shall subsequently be convicted of any 
 offence committed after such pardon or discharge, he shall be punished as follows : 
 
 If the offence of whieh such person shall be. subsequently convicted, be such, that upon 
 
SENTENCE WHERE THE PARTY IS IN CUSTODY, Ac. 185—1 
 
 (g) Punishment for a misdemeanor at common lata. 
 
 The punishment for a misdemeanor at common law/is by fine, or 
 imprisonment, or both. I have already observed,(a) that although for 
 offences at common law, the term of imprisonment is not limited, yet 
 the court, even for offences the most aggravated seldom award a longer 
 imprisonment than two years. 
 
 (k) Sentence where the party is in custody for another offence. 
 
 Wherever sentence shall be passed for felony on a person already im- 
 prisoned under sentence for another crime, it shall be lawful 
 for the court to award imprisonment for the subsequent *offence [*186] 
 to commence at the expiration of the imprisonment to which 
 such person shall have been previously sentenced; and where such 
 person shall be already under sentence either of imprisonment or trans- 
 portation, the court, if empowered to pass sentence of transportation, 
 may award such sentence for the subsequent offence, to commence at 
 the expiration of the imprisonment or transportation "to which such 
 person shall have been previously sentenced, although the aggregate 
 term of imprisonment or transportation respectively may exceed the 
 
 (a) Ante, p. 182. 
 
 a first conviction, an offender would be punishable by imprisonment in a state prison for any 
 term exceeding five years, then such person shall be punished by imprisonment in a state 
 prison, for a term not less than ten years: 
 
 If such subsequent offence be such, that upon a first conviction the offender would be 
 punishable by imprisonment in a state prison for five years 'or any less term, then the person 
 convicted of such subsequent offence, shall be punished by imprisonment in a state prison 
 for a term not exceeding ten years : 
 
 If such subsequent conviction be for petit larceny, or for any attempt to commit an of- 
 fence, which if committed, would be punishable by imprisonment in a state prison, then the 
 person convicted of such subsequent offence, shall be punished by imprisonment in a state 
 prison for a term not exceeding five, years. N. Y. Rev. Sts. (4th ed., Banks, Gould & Co., 
 1852,) pp. 882, 883,' sec. 8, sub sees. '1," 2, 3. 
 
 Michigan. — When any person shall be convicted of any offence, and shall be duly sen- 
 tenced therefor to confinement in the state prison of this state, for one year or more, and" it 
 shall be alleged in the indictment on which such conviction is had, and admitted or proved 
 on the. trial, that the convict has before been sentenced to a like punishment by any court in 
 this state, or in any other of the United States, for period riot less than one year, he.shallbe 
 Bentencedto.be punished by imprisonment in the state prison not more than seven years, in 
 addition to the punishment prescribed by law for the offence of which he shall then be con- 
 victed. 
 
 When any such convict shall have been twice before sentenced to imprisonment at.hard 
 labor, for a period of not less than one year at each time, by any courtin this state, or in 
 any other of the United States, he shall be sentenced to imprisonment at hard labor for life 
 or for a term of not less than seven years in addition to the punishment prescribed by law 
 for the offence of which he shall then be convicted. Rev. Sts. of Mich. p. 688, sec. 12, 13. 
 
186 JUDGMENT. 
 
 term for which either of those punishments could be otherwise award- 
 ed.(«)[l] ^ 
 
 (i) Judgment amended. 
 
 A judgment pronounced by a court of oyer and terminer or jail de- 
 livery, may be altered or amended by the judge, at any time during the 
 same assizes ; a judgment by a court of quarter sessions may be altered 
 at any time during the same sessions ; and a judgment of the court of 
 Queen's Bench, at any time during the same term : — provided the sen- ' 
 tence be not actually entered of record.(6)[2] 
 
 (a) 1 & 8 a. 4, a 28, s. 10. s. 20. R v. Fletcher, E. &Ey, 58. Ry.-JX 
 
 (Z>) See 2 Arch. Pr. 112. 2 Hawk. c. 48, of Leicestershire, 1 M. & S. 442. 
 
 [1] In the state of New York the revised statutes provide that when any person is con- 
 victed of two or more offences before sentence has been pronounced upon him for either of- 
 fence, the imprisonment to which he shall be sentenced upon the second, or other subse- 
 quent conviction, shall commence at the termination of the first term of imprisonment, to 
 which he shall be adjudged, Or at the termination of the second term of imprisonment, as 
 the case maybe. 2 New York Eev. Sts. (4th ed., Banks, Gould & Co., 1852,) fOO, sec. 11. 
 
 Pines are the lowest species of punishment, which courts of justice-have power to inflict. 
 See 11 Harg. St. Tr. 292. There was, indeed, a time when they formed almost the only 
 penalty to which the opulent were liable, when murder itself was commuted by a sum of 
 money, when judges were in many cases mere agents for the crown, and collectors for the 
 treasury. 3 Salk. 32. These abuses have, however, long ceased to impede the course and 
 degrade the character of public justice, Pines are now, for- the most part, retained in cases 
 where they are peculiarly proper, and where they are in general applied to remedy the evil 
 indicted. 
 
 Besides the punishments, there are others which may incidentally flow from the sentence 
 to particular individuals. Thus an attorney convicted of an offence which renders him un- 
 fit for an attorney, will be struck off the rolls ; not so much to punish him, as to keep free 
 from reproach, the profession of which he was a member. In England, where an attorney 
 had been struck off the roll of the court of King's Bench, the court of common pleas refused 
 to strike him off its rolls, it not appearing he had been struck off the rolls of the court of 
 King's Bench, for any misdemeanor. 3 B. & B. 257. 
 
 Amendment of Record. , 
 
 [2] It has been correctly observed, that the judge during the term, is a living record, and 
 therefore during that period of time, he may alter and supply, from^his own memory, any 
 order, judgment, and decree, which has been pronounced, and this, because having made 
 them himself, he is presumed to retain them in his recollection. But, at common law, after 
 the term had elapsed, the judge had no such power, because it was supposed, that there 
 would be a period at which a judge would cease to retain in his memory, the things which 
 had been ordered and adjudged, and that period, it was well conceived, might be the end 
 of the term, as he would then be apt to dismiss from his thought the things which had been 
 previously passing in them. It is however, a very delicate powor, and might be subject to 
 much abuse, especially in criminal cases, if the extent to which it might bo carried was not 
 well defined, and properly checked, by law. See The State v. Marrison; 10 Yerger, Twin. 
 Eep. 542. 
 
COSTS. 186—1 
 
 4. Owto.[8] 
 
 (a) In prosecutions for felonries. 
 
 The court before which any person snail be prosecuted . or tried for 
 felony, is hereby authorized and empowered," at the request of the prose- 
 
 Oosts ig Officers. 
 
 [3] At .common law, no reward could be taken by any officer in the administration of 
 justice; for the discharge of their duties-in these proceedings, judges of courts receive no fees 
 of office ; they have their annual salaries paid by the state. Aldermen, justices of the peace, 
 and the like officers,- are allowed by the statutes of the state certain fees for process issued, 
 and "for other spepific official services performed by them, in these primary proceedings in 
 criminal cases. Constables and sheriffs are, also, thus, compensated for what they do as re- 
 quired by law ; as witnesses are likewise for the'ir attendance on such prosecutions. These 
 fees are, in general, not paid until the determination of the case; being then paid by the 
 county, in case the accused is discharged by the magistrate on primary hearing, or aaquitted 
 on trial; or recovered of the defendant on conviction, if he have property, otherwise to be 
 paid by the county.' M'Kinney's Am. Mag. p. 316. 
 
 The district'attorney of New York city ancL. county is not entitled to costs of suits brought 
 by him on forfeited recognizances and fines, his salary being fixed by the revised statutes 
 and the laws of 1821. The People v. Syperviscfs of New York, 1 Hill, 362. 
 
 In Virginia it is provided by statute that, a sheriff or other officer, for travelling out of his 
 county or corporation to execute .process in a criminal case and doing, ariy act in the service 
 thereof, for which no other compensation is provided, shall receive therefor, out of the trea- 
 sury,' such compensation as the court, from which the process issued, may certify to be rea- 
 sonable. -When in a criminal case 1 an officer renders any other service, for which no specific 
 compensation is provided, the circuit- court of .the county or corporation in which such case 
 may be, may allow therefor what it deems reasonable, and such allowance shall be paid out 
 of the treasury. This section shall not prevent any payment under the thirteenth section of 
 chapter forty-five which could have been made if this section had not been enacted, Cpde 
 of Virg. p. 782 r sec. 7. 
 
 ' Costs , to the Prosecutor. 
 
 At common law, it is a general principle that the government neither pays nor receives 
 costs, and as an indictment, though carried on by an individual, is always considered as the 
 suit of the government, no costs are payable, whatever may be the event of the.prosecution. 
 Hullock on Costs, 557. And, therefore, even in cases where the costs are afterwards allowed 
 throughout the whole of the proceedings, the prosecutor must defray his own expenses, and 
 the court will not allow him costs, unless, some special ground be laid for the application. 
 
 A public prosecution must be at the expense of the prosecutor, unless on disclosure of his 
 circumstances to the court, they find him an object of public charity. Ex parte Manning, 1 
 Caines, 59. . 
 
 Massachusetts. — Every county treasurer shall pay over, to tho persons entitled thereto, 
 all sums, taxed for costs in criminal prosecutions, or allowed by the courts as rewards or 
 compensations to prosecutor?, which shall have .been duly certified by the. clerks, provided 
 such sums shall be demanded within three years after the taxing or allowance thereof; and 
 in his general account transmitted to the governor and council, and also in his account 
 transmitted to the treasurer of the Commonwealth, next after such general account, as be- 
 fore provided, he shall credit to the Commonwealth all such costs and allowances, which 
 shall not have been demanded within the said term of .three years, and shall not have been 
 credited by him, in any former account. Rev. Stat, of Mass. p. 773, sec. 12. 
 
 Virginia. — For services rendered-, or expenses incurred, in the arrest of a criminal, or 
 
 75 
 
186—2 COSTS. 
 
 cutor, or of any other person .who shall appear on recognisance or sub- 
 pcena to prosecute or give evidence against any person" accused of any 
 
 about a criminal prosecution, for which, no particular provision is made by law, it shall be 
 lawful for the first auditor, within three year's after the claim 'might have been presented, if 
 he be of opinion that such claim ought to be'paid^ to lay the same before 'the governor, and 
 so much thereof shall be paid as the governor may direct, Rev. Code of Ya. of 1849, ch. 
 45, sec. 13. - ' 
 
 Costs against Prosecutor. 
 
 As the prosecution of crimes in this .country is not only in' the name, but-purely by the' 
 authority and instrumentality of the government,' and its officers, and not, aS in England, by 
 the instrumentality of an individual prosecutor,- whoever originates. a public'prosecution.has 
 a right to have the accusation proceeded upon, freeof expense to him. • In general the pro- 
 secutor is not liable for, costs. In some states, however, it is provided by statute that in 
 particular eases of misdemeanors,' or on an' indictment returned ignoramus, the grand jury- 
 may direct that the, prosecutor shall pay the costs, or on a verdict of acquittal, the petit jury 
 may so find. See act of' Pennsylvania of Dec. 8, 1804; 4 Smith's Laws, p. 204^ where it is 
 provided that, " in all prosecutions,- cases of felony' only excepted, if the bill or bills of indict- 
 ment shall be returned 'ignoramus,' the grand jury who returns the same shall decide and 
 certify on such bill whether the county or the prosecutor shall upay the costs of prosecution : 
 and in all cases of acquittals by the petftjur-y, on indictment for 'the offences aforesaid, the 
 jury trying the same shall determine, by th'ejr- verdicty whether the county or the prosecutor, 
 or the defendant or defendants, shall pay the- costs' of prosecution ; and the jury so determin- 
 ing, in case they direct the prosecutor to pay the. costs,- shall name him or them in their re- 
 turn or verdict." 
 
 See also, act of Pennsylvania, of 5th of Feb. 1820, '4 Smith's Laws, 240,- which provides . 
 that, in all prosecutions where the petit jury trying the same shall acquit the defendant or 
 defendants, and Shall determine that the prosecutor shall pay the costs, the defendant's bill 
 for his subpoenas, serving the same, and attendance of his material and necessary witnesses 
 shall be included in the. costs and paid accordingly. - , 
 
 In Pennsylvania, informers; under the summary proceedings authorized byj}he statute, for 
 the prevention of vice and immorality, and other similar statutes, are not liable for costs, if " 
 they fail to establish their accusations. Commonwealth v. Eargesheimer, 1 Ashm. Eep. 413. 
 
 In North Carolina, where a defendant is acquitted oh a charge of petit larceny, or of any 
 offence for which judgment does not extend to life, limb, or member, the court may order 
 the prosecutor to pay costs. State v. Luanfrricic, 1 CaT. Law Repos. 543. If an indictment 
 is quashed, the prosecutor is not liable to pay for, the attendance ofwitness.es on either side. 
 Office v. Gray, 2 'Car. Law Repos. 424.. Nor will he be.he.ld to pay costs, if he had proba- 
 ble cause to prosecute, whatever his^motives. were. State v. Forsyth, 1 Taylor, 21.. In' 
 North Carolina, where the grand jury return a bill, " not a -true bill," the -court cannot,- in 
 any case, order the prosecutor to pay costs. The State y. CocJeerham, 1 Iredell Rep.' 381. 
 Nor is an indictment for perjury one of those "frivolous or malicious" prosecutions, in which 
 the court has power, even upon an acquittal by a petit jury, to order the prosecutor to pay 
 the costs ; for at the time the act was passed giving the court power, in certain eases, to or- 
 der the prosecutor to pay costs, the punishment of perjury did extend, and, in some peculiar, 
 cases, does now extend, to the loss of a member. lb. ' See State v. Smith, 2 Mqrphey, 60. 
 
 The prosecutor is no party to the cause, and is not liable, in any case for costs, unless it 
 be so directed by Statute. Carter v. Eawley, Wright's Rep. 332 ; Hansard v. State, 5 Hum- 
 phrey's Rep. 115. . 
 
 The several statutes of Alabama, authorizing the court to tax a prosecutor with the- costs 
 of prosecution, extend to cases of misdemeanor only ; and even then, the record must dis- 
 close that the prosecution appeared to the court to be frivolous or malicious. Barns v. The 
 State, 5 Ala. Rep. 221 ; S. P. Tuck v. Tlie State, 8 Ala. Rep. 664. 
 
costs. 186—3 
 
 felony, to order payment to the prosecutor of the costs and expenses 
 which such prosecutor shall incur in preferring the indictment, — and 
 
 In Missouri, under the statute of that state of 1843, the. prosecutor is not liable for costs 
 in any capital case, or any case punishable by imprisonment in 'the penitentiary alone. Ex 
 parte Cain, 9 Mis. Rep. "76 9. 
 
 Under the territorial statute of Iowa of 1843, rendering private prosecutors liable for 
 costs, there must be a trial and acquittal to fix such liability ; and the court must be satis- 
 fled that the prosecution was malicious. ^Margraiie v. United States, 1 Morris, 452. 
 
 The Mississippi statute which, subjects the master, employer, or overseer of a slave con- 
 victed of larceny to the costs of. prosecution, is designed to render the person who had the 
 slave in charge at the time of the commission of the offence, liable for the costs, whether he 
 were the master, employer, or overseer. Atchinson v. Potter, 6 Smedes & Marsh. Rep. 120. 
 
 A complainant praying for Sureties of the peace against defendant, not liable to costs 
 in case defendant is discharged. . State v.. Abrams, 4 Blackf.- 44P. 
 
 In Virginia the statute provides,- 'the sum to which a witness is entitled who attends for 
 the commonwealth, and Any other legal eharges incurred in a case wherein there is a prose- 
 cutor, shall be paid by such, prosecutor as if he were plaintiff'in the case, unleBs there be a 
 judgment against the defendant, in which case the same shall be taxed in the costsf and paid 
 to the persons entitled thereto, by the sheriff- or officer who- may receive the same. 
 
 ■Liability of Defendant to pay Costs.- 
 
 ■At common law, as the government does' not pay, any more than it receives,., costs, it fol- 
 lows that the defendant, though acquitted, must in general bear all his own expenses. 1 
 Chitty's Cr. Law f 259. But in North Carolina where a'defehdant was tried and acquitted 
 on a charge of felony, it was held that he was. not liable to pay the costs of the witnesses 
 summoned on behalf of the state. Cameron & Norwood Rep. 63. If the evidence is not 
 sufficient to hold the accused to a. trial, a magistrate cannot order him to pay costs, on dis. 
 missing him. Scott's case, Kirby, 362. If a defen'daht in an indictment is acquitted, or if a 
 nol pros is entered, he pays his own costs only. State v. Wliithead, 3 Murphy, 223 ; S. P. 
 State, v. Earrgate, Cameron & Norwood Rep. 63. Where an indictment is found against a 
 person on which he is recognized from term to tefm, until,' on a discovery of a defect in the 
 bill, a nolle prosequi is entered, and a new bill is then sent and found against the defendant 
 for the same offence, on whieh he is convicted, he is-liable to pay the costs of the attend- 
 ance of witnesses.for the whole time. State v. Hanshaw, 2 Car. Law Repos. 251. A jury 
 may direct a defendant Jo pay costs, though the indictment is defective. Commonwealth v. 
 Tilghman, 4 Serg. &-Rawle; 127. A defendant pleaded guilty to an indictment for selling 
 spirituous liquors without license, and the court fined him two dollars, saying nothing as to 
 the costs. Held that the costs of prosecution should, in such case, be included in the judg- 
 ment. The State v. Smith, 6 Blackf. Rep. 549. 
 
 In Indiana, when a person accused of a crime, before a justice of the peace, is recognized ' 
 to appear in the circuit court, and is convicted in that court, the costs of the examination 
 
 before the justice cannot be included in the judgment. State v. Thurston, 7 Blackf. 148. 
 
 Where. a person is recognized to appear and answer to a criminal charge at court, he will 
 be liable, for the -costs of the recognizance, although no one appears to prosecute. Houston 
 
 v. United States, 1 Morris. 174. 
 
 A defendant may be sentenced to pay costs of prosecution, though, after verdict, there 
 
 has been'a general pardon by the governor. Playford v. Commonwealth, 4 Barr, 144. Costs 
 
 on an indictment, are remitted by a pardon before judgment. Duncan v. Com. 4 Serg. & 
 
 Rawle. 449. Otherwise if. the defendant be pardoned after the right to the costs has vested 
 
 in the 'officers. lb. 
 The court, in entering judgment, against a defendant for fine and costs, may order that 
 
 he stand committed until the fine and costs are paid. Hitt-v. State, 2 Terg. 247. 
 In South Carolina, the costs constitute a mere debt to the officers of the court, and though 
 
186—4 costs. 
 
 also payment to the prosecutor and witnesses for the prosecution of 
 such sums of mouey as to the court shall seem reasonable and sufficient 
 
 it be part of the defendant's sentence ".that he stand committed until the costs are paid " 
 yet he is entitled to the insolvent debtor's and prison-bound acts if he be unable to pay them. 
 State v. Kenny, 1 Bailey, 375. 
 
 Witnesses Fees and Expenses. 
 
 In criminal cases no tender of fees is, in general, necessary, on the part of the govern- 
 ment; in order to compel its witnesses to attend ; it being, the duty of every citizen to obey 
 a call of that description. 
 
 Massachusetts.— In Massachusetts, it is not necessary to pay or tender any fees to any 
 witness who is subpoenaed'on behalf of the commonwealth, to testify, in support of any pro- 
 secution, but every such, witness is bound to attend,- and punishable for .non-attendance, in 
 the same manner as if the fees allowed .by law had been paid to him.. Rev. Sts. of Mass. 
 ch. 136, sec. 26. ~ 
 
 New York. — In New Torts: the re vised^ statutes provide that it shall not'be necessary to 
 pay or tender any fees whatever to any witness subpoenaed on the part of the people,in sup- 
 port of any prosecution, or to any witness subpoenaed on the part of any defendant in an 
 indictment ; but such witness shall be bound to attend as if the fees allowed by law to wit- 
 nesses in civil cases -had been duly paid to him. 2 E. S-. 129, § 65. 
 
 But when a witness attends the oyer and terminer or sessions, in behalf- of the people, on 
 subpoena, recognizance, or on- request, of the public prosecutor, from another state or terri- 
 tory of the United States,' or from any foreign country ; or if such witness be poor, on either 
 fact appearing, the court nfty by order in its minutes direct the county treasurer to pay him 
 such sum of money as shall seem reasonable for his expenses ; to be paid to the witness or 
 his order, on producing a certified copy of -the order of the court, to the county treasurer. 
 2 R. S. 753, §§ 13, 14, 16. . 
 
 Pennsylvania. — th Pennsylvania, provision is made by statute, for the payment of the 
 fees of witnesses for tho prosecution, in case of conviction,, or of the insolvency of the de- 
 fendant, by the county; and, in some instances, for the payment of the fees of the defend- 
 ant's witnesses, by the county, or by the prosecutor.- M'Kinney's Am. Mag. p. 239. 
 
 A witness subpoenaed and attending court, and testifying in several prosecutions, at the 
 same time, is entitled to only one daily compensation^ 1 Ashmead, 265. 
 
 Maine. — When a justice shall issue, any summons for a witness, at the request of any 
 person, prosecuted in a criminal suit, it shall be so expressed in the .summons ; and the wit- 
 ness shall thereby be required to appear and giye evidence, upon condition that such party 
 pay him his legal fees. 
 
 No costs shall be allowed by a justice of the peace for the benefit of any complainant, 
 whether as an officer, witness, or in any other capacity; provided, that a police officer, or 
 constable, duly qualified, and acting under the authority of. a town, or complaining in. cases 
 where, by particular provisions of law, it is made his duty to complain, may be allowed his 
 fees as an- officer. 
 
 When any person shall have been summoned as -a witness, in more than one criminal 
 prosecution, before a justice of the peace, on the same day, or at the same term of any ju- 
 dicial court, he shall be allowed pay for travel and attendance, only in such one prosecution, 
 as the justice of the court may direct ; and in no case shall he be allowed more than one 
 travel, at the same time. 
 
 No fees, in criminal prosecutions, continued after the first term, shall be allowed to wit- 
 nesses on the part of the state, until the third day of the torm of the supreme judicial 
 court, or of any district court, held in any county in this state, except in the counties of 
 Hancock, Oxford, Franklin, Piscataquis and Aroostook ; nor until the second day in either 
 of these excepted counties, unless in either case, the court BhaU have expressly required an 
 earlier attendance. 
 
COSTS. 186—5 
 
 to reimburse such prosecutor and witnesses for the expenses they have 
 severally incurred in attending before the examining magistrate or mag- 
 
 If .any person, convicted of an offence before any justice of the peace, be ordered by such 
 justice to pay the costs of prosecution, as. part of his sentence, and shall comply with such or- 
 der, the justice may retain his own fees, and pay oyer the other fees to the officer, witnes- 
 ses and other persons thereto entitled. 
 
 If such fees, other than the justice's, be not called for within one year, they shall be for- 
 feited to the use of the state, and the justice shall pay over the same to the couiity treasurer, 
 within such time and under such penalty, as is provided in the twenty-second section ofthis 
 chapter, for the non-payment to such treasurer of fines by him received. 
 
 ■ Whenever a party accused shall be acquittedby any justice of the peace, or, being, con- 
 victed, shall not.be sentenced to pay costs, or, being sentenced to pay costs, shall not pay 
 them to. said justice, the (Commissioners' of the same county may examine and correct all 
 such bills of costs, including the fees, of the officer, witnesses and other persons, entitled 
 thereto, and order the same to be paid out of the county treasurer; except as is provided 
 in the following section. 
 
 Wheneyer any justice, or any. individual interested -in such bill of costs, shall be one of 
 the county commissioners/or the same county, the district court held in said county shall 
 have the same cognizance of such bill of costs, as the commissioners might otherwise have 
 had. . ' 
 
 In all criminal' prosecutions, which are carried to any court, "by appeal from the decision 
 of a justice of the peace, or where the party accused is committed or required to recognize 
 for his appearance to any court, the costs shall be taxed and certified, with the papers, to 
 the court. 
 
 In all criminal prosecutions, lawfully pending in the supreme judicial court, or in any 
 district court, the court may allow and tax such-costs for justices, officers, aids, jurors and 
 witnesses, and for other charges, upon such prosecution, and previous to its determination, 
 as are provided bylaw, whether the person accused be brought to trial or not, or whether 
 he be convicted or acquitted upon trial; ^nd all costs,- so taxed, shall be paid out of the 
 county treasury, Rev. Sts. of Maine, pp. 655, 656, sees. 6 to 15, inclusive. 
 
 Ohio.— The "Revised Statutes of Ohio provide that witnesses- summoned by, order of the 
 prosecuting attorney, or defendant, or who. may have been recognized to appear at court, 
 _and attending the supreme court or court of common pleas, in criminal oases, the punishment 
 whereof is capital, or imprisonment j/n, the penitentiary, shall be allowed the following fees, 
 viz: those residing out of the county where the trial is to be had, one dollar per day for each day 
 he or she shall actually attend the court under such summons or recognizance, and one dollar for 
 each twenty-five miles traveling to and from said court; and those residing within.such.cqunty, 
 the sum of seventy-five cents per day, for each day's actual attendance, under a subpoena or 
 recognizance, as aforesaid. And in all other cases where'the punishment igjess than impris- 
 onment in the penitentiary, the fees for witnesses attending -court of common pleas under a 
 subpoena or recognizance, whether residing in or out o/the county, shall be seventy-five cents 
 per day for each day's attendance at court ; and when witnesses shall reside out of the county 
 in which {he trial is had, seventy -five cents for each twenty-five miles traveling to and from court. 
 The fees in this section specified; to be audited and paid in the manner now provided by 
 law. 
 
 That the ninth section" of an " act to regulate the fees Of officers in civil and criminal 
 cases," passed March 5th, 1831, and the twenty-fourth section of an " act directing the mode 
 of trial in criminal cases,." passed March 7, 1831, and all laws and parts of laws inconsist- 
 ent with the provisions of this act, be and the same are hereby repealed : provided, that in 
 a'll other cases except those specified in this act, each person summoned as a witness shall 
 be allowed the sum of fifty cents per day for each day that he or she may attend as such; 
 and all persons who shall be called upon to testify in a cause in which they are not sum- 
 moned, shall receive twenty-five cents: tp be audited, taxed and paid, as now is, or here- 
 
186—6 costs. 
 
 istrates and the grand jury, and in otherwise carrying on such prosecu- 
 tion, and also to compensate them for their trouble" and loss of time 
 
 after may be provided for by law. This act to take effect and be in force from and after the 
 first day of June next. Rev. Sts. of Ohio, pp. 390, 391, sece. 2, 3. 
 
 Michigan.— It shall not be necessary to pay or tender any fees whatever, to any witness 
 subpoenaed on the part of the people of this state, in support of any prosecution, or to any 
 witness / subpoenaed on the part of any defendant in. any indictment; but such witness 
 shall be bound to attend, as if the fees aUowed by law to witnesses in civil actions had been 
 duly paid to him. Rev. Sts. of Mich. p. 699, sec. 28. - 
 
 Whenever any person shall attend any court of reeord as a witness in behalf of the peo- 
 ple of this state, upon request of the public prosecutor, or *upon subpoena, or by virtue of a 
 recognizance for that purpose, and it shall appear that such person has come from any other 
 state or territory of the United States, or from any foreign country, or that such person is 
 poor, the court may, by an order to be entered on its minutes, direct the county treasurer of 
 the county in which the court may be sitting, to' pay to such witness such sum of .money as 
 shall seem reasonable for his expenses ; and no fees shall be allowed or paid to witnesses on 
 the part of the people in any criminal proceeding or prosecution, except as in this section 
 above provided. Rev. Sts. of Mich. p. ^OS. sec. t. " 
 
 Mississippi. — Every witness summoned to appear in any of the said courts, 'bn a criminal > 
 prosecution, or plea of the state, shall appear accordingly, and continue to attend from day 
 today, until discharged by the court, the attorney-general, or district attorney, or by the 
 party at whose instance he shall be summoned ; and in default thereof, shall be fined by the 
 court in a sum not exceeding one hundred dollars, for the use of the state,, or the party sum- 
 moning him, as the cases may be ; unless on the return of a scire facias made known, and 
 before final judgment, sufficient cause be shown for such failure ; and such witnesses shall 
 be allowed the same compensation for their daily attendance, and the same mileage as is al- 
 lowed to witnesses attending in civil suits ; and such compensation, together with all costs 
 of prosecution, shall be paid by the defendant bn conviction. And, in case the state shall 
 fail in the prosecution of any offence 1 of an inferior nature, the court may order the costs to 
 be paid by the prosecutor, if the prosecution shall appear to have been frivolous or mali- 
 cious : arid, if on conviction, the defendant shall be unable to pay the costs of prosecution, 
 or if the defendant be acquitted, and the costs be not taxed on the/prosecutor, the wit- 
 nesses appearing on behalf of the state, shall be paid the compensation aforesaid, out of the 
 treasury of the state ; and the certificate given by the clerk of the courtin which such pros- 
 ecution was determined to any witness, specifying the amount of compensation to which he 
 is entitled, with an endorsement thereon, by such clerk, that the' defendant is unable.to pay 
 the costs of prosecution, or that he was acquitted, and the costs not taxed on the prosecu- 
 tor, as the case may be, shall be a sufficient voucher to authorize the auditor to issue his 
 warrant on ''the treasurer, for the sum mentioned in such, certificate. Hutchinson's Missis- 
 sippi Code, pp. 859, 860, sec. 105. 
 
 ' Hereafter grand jurors and witnesses in behalf of the state shall each receive one dollar 
 and fifty cents for their services per day, while they shall be required to attend on their re- 
 spective courts, and six cents per mile- for traveling from and to the respective places of their 
 residence, computing the distance by the usually traveled route. Petit jurors, or the origi- 
 nal venire, shall each receive one dollar and fifty cents, per day while they shall be required 
 to attend on their respective courts, and six cents per mile for traveling from and to their 
 respective places of residence, estimating the distance by the usually traveled route ; and 
 the tales jurors shall not hereafter receive any compensation. Witnesses attending on the ' 
 legislature under a subpoena, for each day they may be required so to do, shall receive two 
 dollars : and six cents per mile for traveling to and going from the state capital, estimating 
 the. distance by the usually traveled route; but no payment shall be made by the treasurer 
 of the state on account of services renderodby any of the officers of the state mentioned in 
 
COSTS. 186—7 
 
 therein ;— and although no bill of indictment be preferred, it shall still 
 be lawful for the court, where any person shall in the opinion of the 
 court, bona fide have attended the court in obedience to any such recog- 
 nizance or subpoena, to order payment unto such person of such sum 
 of money as to the court shall seem reasonable and sufficient to reim- 
 burse such person for the expenses which he or she shall have bona fide 
 
 m 
 
 the fourth, fifth, und sixth sections of this act, until they shall have been duly certified and 
 audited according to law. 
 
 If any talesman juror shall be detained more than one day in any one .cause, such tales- 
 man shall be entitled -to the same pay and mileage as is prescribed. by this act for jurors be- 
 longing to the original venire.' lb. p. 891, art. 15.' 
 
 Witnesses on the patt of the state in any criminal prosecution shall only be entitled for 
 each day's attendance on any circuit or criminal court, the sum of one dollar : Provided, 
 That the prosecutor in any criminal case shallnot be entitled to a certificate for his attend- 
 ance in any case where he may be endorsed as a witness, and provided that no person shall 
 charge the state for his attendance in more than One prosecution on the same day. lb. p. 
 KM, art. 4. 
 
 Vermont. — Witnesses in Vermont,, are entitled for travel per mile, to five cents ; for at- 
 tendance, per day, seventy-five cents, except for attending a justices court, court of jail deli- 
 very, du to give his deposition before a justice when he is allowed" thirty-four cents' only. 
 Rev.^Bta: of Vermont, ch. 116. 
 
 Virginia. — The thirty-fourth, thirty-fifth' and thirty-sixth sections of chapter one hundred 
 and seventy -six, shall apply to a, person attending as a witness, under a recognizance or 
 summons in a criminal case, as well as to a person attending under a summons in a civil 
 case ; except that, in a criminal case, -a witness, who travels over fifty miles' to the place of 
 attendance, shall .have for each day's attendance one dollar instead of fifty cents, and a per- 
 son residing out of this state, who attends a court therein as a witness, may be allowed by 
 said court, for attendance and for travel to and from the place of his abode, as if he resided 
 in the state. 
 
 The sum to which a witness is entitled who attends for the commonwealth, and any other 
 legal charges incurred in a case wherein there "is a prosecutor, shall be paid by such prose- 
 cutor as if he were plaintiff in the case, unless there be a judgment against the defendant, in 
 which case the same" shall be taxed in the costs, and paid to' the persons entitled thereto, by 
 the sheriff or officer who may receive the same. 
 
 Payment shall not be made out of the treasury, to a witness attending for the common- 
 wealth in any- prosecution for a misdemeanor, unless it appears that the sum to which' the 
 witness" is entitled cannot be obtained, if it be a case wherein there is a prosecutor and the 
 defendant is convicted, by reason of the insolvency of the defendant, or if it be a case in 
 which there is ho, prosecutor, by reason of the acquittal or insolvency of the defendant or 
 other cause.; Rev. Code of Va., p. 182, sees. 4, 5, 6. 
 
 Wisconsin., — The attorney general is authorized to issue subpoenas, and compel the at- 
 tendance of witnesses on behalf of the state, without paying or tendering fees in advance ; 
 and any witness failing or neglecting to attend, after being served with" a subpoena, may be 
 proceeded against, and shall be- liable in the same manner as provided by law in other cases 
 where fees have been paid or tendered. 
 
 When any person shall attend a court of record as a witness in behalf of the state, upon 
 the request of the public prosecutor, or upon a subpoena, or by virtue of a recognizance for 
 that purpose! and it shall appear that such person has come from any other state or territory 
 of the United States, or from any foreign country, or that such person is poor, the coiirt may 
 by order on its minutes, direct the county treasurer of the county in which the court shall 
 be sitting, to pay to such, witness such sum of money as shall seem reasonable, for his ex- 
 penses. Rev. Stat, of Wis. p. 678, sees. 57, 55.' 
 
186—8 costs. 
 
 incurred by reason of attending before the examining mag- 
 [*187] istrate or magistrates, — and by *reason of such recognizance 
 
 or subpoena, — and also to compensate such person for trouble 
 and loss of time.(a) 
 
 Where the prosecutor and witnessess were bound over to prosecute 
 and give evidence at the assizes as for a felony, but by the advice of 
 counsel the indictment was preferred for a misdemeanor, in a case where 
 costs were not allowed by the statute : upon application being made 
 for costs, Williams, J., after taking time to consider, granted ii.(b) . 
 
 (£)> In prosecutions for .misdemeanors. 
 
 - ' w j 
 
 Where any prosecutor or other person shall appear before any court 
 on recognizance or subpoena, to prosecute or give evidence against any 
 person indicted of any assault With intent to commit felony, — of any 
 attempt to commit felony,' — of any riot,^of any misdemeanor, for re- 
 ceiving any stolen property, knowing the same to have been stolen, — 
 of any assault upon a peace, officer in the execution of his duty, or 
 upon any person acting in aid of such officer, — of any neglect or breach 
 of duty as a peace officer, — of any assault committed in pursuance of 
 any conspiracy to raise the rate of wages, — of knowingly and designed- 
 ly obtaining any property by false pretences, — of wilful ^ind indecent 
 exposure of the person, ■*— of wilful and corrupt perjury, or of subor- 
 nation of perjury, - — [or unlawfully and carnally knowing and abusing 
 any girl being above the age of ten years and under the age of twelve 
 years, — unlawfully taking or causing to be taken any unmarried -girl, 
 being under the age of sixteen years, out ,6f the possession and against 
 the will of her 'father or mother, or of any other person having the 
 lawful care or charge of her, — conspiring to charge any person with 
 any felony, or to indict any person of any felony, — and conspiring to 
 commit any felony ;(c) — and in every case of assault, brought before 
 justices of the peace for summary decision',' under stat. 9 Q:. 4, c. 31, in 
 which the justices shall be of opinion that the same is a fit subject for 
 indictment, and shall thereupon bind the complainant and witnesses in 
 recognizance to prosecute and give evidence at the assizes or sessions 
 of the peace] ;(d) every such court is hereby authorized and empowered 
 to order payment of the costs and expenses of the prosecutor and wit- 
 nesses for the prosecution, together with a compensation for their trouble 
 and loss of time, in the same manner as courts are hereinbefore autho- 
 rized and empowered to order the same in cases of felony _;■ — and al- 
 though no bill of indictment be preferred, it shall still be lawful for the 
 court, where any person shall have bona fide attended the court, in obe- 
 
 (a) 1 G. 4, o. 64, s. 22. (c) U & 15 Viot. 0. 55, a 2. 
 
 (b) R. v. Hanson, 2 Oar. & K. 912. (d) Id. S. 3. 
 
ATTENDING BEFORE 'THE EXAMINING MAGISTRATE.. '187 
 
 dience to such, recognizance^ to order payment of the expanses of such 
 
 person, together with a compensation for his or-hdr trouble and 
 
 loss of time,.in' the same manner as' in cases of 'felony .'(a) • *This '[^188] 
 
 statute, however,- does not extend to cases where the indictment 
 
 is removed By certiorari at the. instance of , the proseputor, and afterwards 
 
 tried on the civil Side at the ass'izes.(&) » 
 
 , (c) Costs of attending before the examining magistrate. * 
 
 By, stat.' 7 Gr. 4, c. ,64, s. 22, already noticed, (c) prosecutors, and wit- 
 nesses', in. cases of felony, are to be allowed 'their, expenses in attending 
 before .the J examining magistrate : pr magistrates ; and the section also 
 enacts, ".that the amount, of the expenses of attending before the ex- 
 'amining magistrate ■■ or 'magistrates,, and the 'compensation for trouble 
 and loss of time therein, shall be ascertained by the certificate of such 
 magistrate or magistrates,, granted, before the trial or attendance in court, 
 if such' magistrat&.or- magistrates shall think fit to .grant" the same :" the 
 other expenses to be "ascertained by the proper officer, of the' court.. 
 By that section,. the magistrates' certificate _was conclusive, as to the 
 amount of those expenses. . But this is no longer so ; for by stat. 14 & 
 15 Vic}, 'c. 55, s. 6,' the amount, of- such' expenses shall also be ascer- 
 tained by the. proper -officer of the court, but the amount thereof,, as sp 
 ascertained, shail not exceed the amount mentioned in the.ceftificate' of 
 the examining magistrate. So -that now, it should seem, the prosecutor 
 and 'witnesses are' entitled to be allowed their expenses of attending 
 before the examining -magistrate, only in 'base such magistrate shall 
 grant a certificate, and if granted, the amount therein allowed must be 
 examined, and may. be reduced on\ taxation, by the .taxing officer of 
 the. court. , . ' ' ""= ;• -.'■'■ ' \ 
 
 The 23rd sect, of stat. 7 G. 4, c. 64, above mentioned, which granted 
 costs in certain cases of misdemeanors,, contained a proviso, "that in- 
 cases of misdemeanor, the power of ordering the payment of expenses 
 and compensation, shall not extend to the attendance Before the' exaD> 
 ining magistrate." But this" proviso is now repealed by stat. 14 & 15 
 Vict. c. 55, s. 1 ; and'as By'stat. 7..Gr. 4, c. 64, s. 23, the prosecutors and 
 witnesses -are . entitled to their expenses in the cases of misdemeanor/ 
 therein mentioned, " in the same- manner as in -cases of felony," they, 
 are now entitled, to these costs of attending. Before the examining mag- 
 istrate. ' 
 
 (d) In prosecutions for offences at sea. 
 It shall be lawful for'. the judge,. of the court of Admiralty, [and for-. 
 
 (a) 1 G. 4, o. 64, s. 23. Tr. 1825. 
 
 (i) E. v. Johnson et al, Ry. & M. 1*13. R.' ' (c) Supra, 
 v. Oates, Ry. & M. 115. R. V. Richards, MS. 
 
 ' * 76 
 
188 v costs. 
 
 the judges of the Central Criminal Court,'(a) or judges of assize,. and 
 commissioners of oyer and terminer,] (&)" in every case of felony, and in 
 every case of misdemeanor of the denominations hereinbefore .enumer- 
 ated,- committed upon the high seas, to order the assistant to the coun- 
 •sel for the affairs of the Admiralty and navy,, to pay such costs, 
 [*189] *expenses, and compensation • to prosecutor "and witnesses, in 
 like mariner as oth^r courts • may order the treasurer of the 
 xjourfty to pay the same/ 
 
 (e) In other cases. 
 
 Upon an indictment for- a nuisance, by' a steam engine, it is enacted-' 
 by stat. 1 & 2 Gr. 4, c. 41, that it shall be lawful for the court, by which 
 judgment' ought to be- pronounced, in- case of conviction upon -any such 
 indictment, to. award such costs as shall be deemed proper and reasonable 
 ,to the prosecu-torHDr prosecutors, 'Jo -be paid -by the- party or parties so 
 convicted as aforesaid, such award-to be made either before or .'at the 
 time of pronouncing final judgment, as to the court may seem fit: ■ 
 
 In prosecutions for misdemeanors under stat. 12 & 13 Vick c. 76; 
 (procuring the defilement of women,) the prosecutor and witnesses shall 
 be allowed their expenses, in the same manner as in cases of felony,(c) 
 
 In prosecutions for offences under stat. 14-& 1-5 -Yiet. c. 19, (namely, 
 misdemeanors in being- found at njght, armed, with intent to break. and 
 enter a dwelling-bouse, of with implements of house-breaking, or -dis= 
 guised, of in a dwelling-house with intent, to commit a felony, — rof in 
 inflicting' grevious bodily'harm with or without weapon, — or for felo- 
 ny, in using chloroform, &c, with intent -to Commit or assist another-in 
 committing a" felony,), the court may. allow the expenses of the prose- 
 cution in -all respects as in cases of felony .(i),[l} ■ ■ ' 
 
 r 
 (a)4 & 5 "W. 4,'o. 36, s. 22. (c) Id." S3. 2, Z. 
 
 (h) 1 & 8 Viqt. o. 2, a 1. (d) 14 & 15 Vict o. 19, s. 14. 
 
 [1] In'casea of trifling misdemeanors, the courts have power to allow a compromise, in 
 order.to render some satisfaction to the party immediately injured. 2 Bla. Com. 363, 4. 
 This may he .done by suffering the defendant to confer, or, as it is commonly called, to speak 
 with the' prosecutor; 'after which; if the latter declares that he is. satisfied, the court will 
 only impose a trifling fine for the injury to the jmblic welfare. 4 Bla. Com. 2,63, 4pDick. 
 Sess. 155, 6, But this mode of compromise has been eensnred, when ' entrusted to inferior 
 •magistrates, -as allowing the prosecutor to become a witness in, the cause from which he is 
 to derive benefit, and encouraging tbe' commencement of criminal prosecutions rather for the 
 sake of private advantage, than thegreat purposes of public justice. 4 Bla. Com. 364. But 
 this reasoning scarcely appears conclusive, for there are many instances where the legisla- 
 ture have themselves offered rewards to persons, who are the means of convicting the guilty, 
 and who are to derive a most evident advantage from -conviction, and one far more certain 
 than the mere chance of" recompense from the defendant, and who are stilt competent wit. 
 nessea. It is not, therefore, true, "that the rules of evidence are entirely subverted." 4 
 Bla. Com. 364. And it has been urged, with apparent force, that the justices, whom Mr. 
 
REWARDS FOR APPREHENSION. 189 
 
 But in- prosecutions -for felonies .and offences against the Queen and 
 government, .under- the stat, 11 Vict. c. 12, the court shall not -order 
 payment to the prosecutor or -witnesses of any costs which shall be in- 
 curred in preferring or prosecuting the indictment, (a) 
 
 (/) Rewards, &c. for apprehending certain offenders. 
 
 By stat. T Q. 4, c.-(M, s. 28, where any person " shall appear to any 
 court of oyer and terminer, jail delivery, superior criminal court of acoun- 
 ty palatine [or court of quarter sessions, so far as respects offences which 
 the sessions have power to try,] (6) _ to/have been active in or towards 
 the apprehension- of any person charged with murder, — Or with feloni- 
 ously and .maliciously shooting,at or. attempting to discharge any kind 
 of loaded 'fire arms at any other*person,-r-or-.with.stabbing, cutting, or 
 poisoning,— or with administering. any thing to procure the miscarriage 
 of any woman,— or. with rape, — or with /burglary or felonious house- 
 breakings — or with robbery on the person,— Or with arson, — or with 
 horse stealing, bullock stealing, ofsheep stealing.— or with being acces- 
 sory before the fact to any of the offences aforesaid, — or with receiving _ 
 any .'property knowing the same to have been stolen : — every 
 *such .court is hereby authorized and empowered, in any' of [*190] 
 the cases aforesaid, to order the sheriff of the county in which 
 the offence shall have been committed, to pay "to the person or persons 
 who shall appear to the. court to have been active in or towards the ap- 
 prehension- of any person charged- with any of the said offences, such 
 
 (a) 14 & 15 Vict. c. 19, s. 10. (6) 14 & 15 Tict. c. 55, s.. 8. 
 
 Justice Blackstone considers as the most improper to be' entrusted with such, a power, are, 
 in fact, the best- fitted to exercise it with judgment ; because they are from their local 
 knowledge, much better acquainted with' the character and circumstances of the parties, than 
 the judges, who are acquainted only with- the facts producedin evidence. Dick. Sess. 156, 
 in notes; and see 11 East, 46, 48. 
 
 It is also not unusual for the court, in. order to defray the costs of the prosecution, .to in- 
 timate an inclination to mitigate the- punishment, on the ground df the defendant's paying 
 them or advancing a sum for that purpose. Hawk. b. 2, c, 25, s. S ; Bac. Abr. Indictment, 
 A. ; 11 East, 46, 48. And, in conformity to this principle,, it has been hold'en, that where; 
 on an indictment against a master for Ill-treating his parish apprentice^ the defendant gave a 
 security for the expenses of the. proceedings, on an intimation from the court that the im- 
 prisonment would, on that account be reduced from twelve months to "six, the npte was 
 founded on a good consideration, and consequently the transaction was. legal. 11 Bast, 46, 
 48; Bac. Abr. Indictment, A.; 16 East,. 301; 4 Campb. 46. And where by leave of the 
 magistrates, the party referred it to the master to ascertain the costB the prosecutor had in- 
 curred', as well as the damages he had sustained by the original injury, and he had accord-' 
 ingly fixed "them at sums for which the defendant was attached, it was holden that he could 
 not be discharged at the end of twelve calendar monthsi though the damages were less than 
 £20, under the 48 G-eo. 3, c. 123, because the ground of the imprisonment was regarded as 
 criminal. 2 M. 4 S. 201, but see 13 East, 190. Since, -then, a compromise is thus enforced,' 
 its legality can scarcely be disputed. , - 
 
190 - • . v costs. : . 
 
 sum or sums ©f- money as to the court snail seem- reasonable, and suffi- 
 cient to compensate such- person or persdns for his, her, or their expen- 
 ses and loss of time, in or towards/ such apprehension. [1] 
 
 [1] Massachusetts.— The governor shall. he r authorized, whenever in 'his .opinion the 
 public good may require it, to offer and pay a suitable reward, not exceeding one thousand 
 dollars in any one case, to any person who shall, in- consequence of such offer, apprehend, 
 bring back, and secure any person who shall" be convicted of- any capital crime, or other 
 high crime or misdemeanor, or sh'all be charged therewith, and shad have escaped from any 
 prison in this state ; and he may offer and pay a- like, reward to any .person who shall, in 
 consequence of such offer, apprehend arid" secure any person -charged with any sued offence, 
 when the person charged cannot be'arrested and secured in thp common course of proceed- 
 ing ; and the governor may, with the advice of the council, issue his warrant-on the treasury 
 for the payment bf -every such reward,' Rev. Stat, of Mass. p.- 810, sec. 14.- 
 
 There shall be allowed, "and paid to the person who . sh'all inform and prosecute, in the 
 cases hereafter mentioned, the following- rewards, .that is to say; -tb'e sunvof sixty dollars 
 for each person convicted and sentenced for the offence of forgery, "or making any false and 
 counterfeit certificate, bill or note, in the similitude of any certificate,, bill ar note, issued as 
 aforesaid, for any debt of this commonwealth, or by or for any bank or banking company, 
 by law established in this - state, or for the.-offence of counterfeiting any .gold or silver coin," 
 current by law or usage, as aforesaid"; and the sum of forty dollars for each person so con- 
 victed, and sentenoed for the offence, of possessing, with intent to utter as true, or* of know-^ 
 ingly uttering as true, any such'Yalse and 'counterfeit certificate, bill or note, or any such 
 counterfeit coin as aforesaid ; which rewards shall be 1 paid out of the'public treasury, by .the 
 warrant of the governor, with advice of the council to be granted upon 'the .certificate of 
 the judge or court, before whom such conviction shall be had j ami when there shall be two 
 or more informers and prosecutors, for.the_ same offence, "the. said reward -shall be divided 
 ' between them equally, or in such proportions as the said judge or court shall determine. 
 Rev. Stat, of Mass. p. 731, 732 i; .sec. 19. ' 
 
 A person, informing against, .and -prosecuting" another for being engaged in a lottery, is 
 entitled to a reward of fifty dollars; and if -the offender is convicted and punished by a fine,- 
 the informer, is entitled, at-the discretion of the court, to a slim. not exceeding, one half of 
 the fine actually paid by such offender. "Rev. Stat, of Mass. ch. 132, sec. 7. 
 
 New York. — There shall be annually paid out bf the treasury to "the governor, a sum not 
 exceeding two thousand "dollars-fn the-whole; to ; defray Such expenses, as may from time to 
 time; in his opinion, be necessarily incurred, in the apprehension of criminals, and he shall 
 account to the 'comptroller for the expenditure thereof.. Rev, Sta.' of. New York, (4th ed. - 
 Banks," Gould & Co.; 1852,) vol. 1, p. 417, ch. 9, sec. 19. 
 
 Maine. — The governor, whenever he shall deem it necessary, is hereby authorized. to 
 offer and'pay a suitable reward, not exceeding one .thousand dollars in apy one case, to any 
 person, who. shall, in consequence of. such offer, apprehend and bring back-, and secure any 
 person escaping from any prison in this state, convicted of a capital crime or other high, 
 handed offence and 'misdemeanor, or charged therewith ; and also to offer and pay a like re- 
 ward for apprehending any person-, having committed any such crime or offence,. where it 
 oannot.be done in the ordinary course of proceeding : and the governor, 'with advice of the 
 council, may draw his warrant on the treasurer for the payment of such reward. Rev. Sta. - 
 of Maine, p. 723; sec. 3. 
 
 There shall be pajd to the person,, who shall inform -and prosecute in the cases" hereinafter 
 mentioned, the following rewards.; that is to say : the sum of sixty dollars for each person 
 convicted and sentenced for either of the offences of forging and counterfeiting any public 
 security, bank-bill, or note or any coin, as desoribed in the third, fourth and sixteenth sec- 
 tions of this chapter ; and the sum of forty dollars for each person convicted and sentenced 
 for either of the offences of possessing with intent to utter, or Of knowingly, uttering any 
 such public security, bank bill, note or coin as described in the fifth, sixth, seventh, six- 
 
WHAT EXPENSES,- &,o., ALLOWED-. 190—1 
 
 And if any man shall happen to be Killed, in endeavoring to appre- 
 hend any person who shall' be charged with any of the offences herein- 
 before last mentioned, it shall be lawful for. the court before whom such 
 person shall 'be tried, to order- the sheriff of the- county to pay to the 
 widow of the man sq killed, in case he, shall have been married,- or to 
 his child or- children in case his wife shall.be dead, or to his father or 
 mother in case he' shall Tlave .left neither wife nor child, such sum -of 
 money as to the court in i^a discretion shall seem meet.(tt) 
 
 (ff) W7iat expenses, <l-c. allowed? 
 
 Formerly the justices at sessions were to- make regulations as to the 
 costs, expenses, and. compensations to prosecutors -and witnesses, by stafc 
 7 G. 4, p. 64, s. 26, But now that section is repealed by stflt. 14 & 15 
 Yict. c. 55, s. 4 ; and by sect. 5, of the latter statute, it shall be lawful 
 for one of Her Majesty's principal secretaries of state, to revoke any 
 regulations made under the, provision hereinbefore repealed, and to 
 make regulations as to the rates or scales of payment of all or any costs, 
 expenses, and compensations to be allowed»or ordered 'to .be paid^ under 
 the said Act or any other Act or this Act, to prosecutors and witnesses 
 and to persons attending the court in obedience to any recognizance or 
 subpoena, in cases of 'criminal prosecutionSj — 'and" (except as herein- 
 after mentioned) to persons who may have been active in or towards 
 the apprehension of persons charged with offences, — and also regula- 
 tions as to the rates or scales of payment according to which certificates 
 
 s 
 ■•'(o). 1 ' G- 4, c. 64, a. 30. , 
 
 teenth and seventeenth sections ; which rewards shall "be paid out of the treasury of the 
 state, by warrant of the governor, with adyioe of the council, to be. granted on certificate of 
 the judge or courWiefore whom the convietion'shall be had,- and, where there shall be two 
 Or more informers and prosecutors for- the same offence, the said reward shall be divided .be- 
 tween them equally, or in such-proportions as said judge or courf shall determine. Rev. 
 Sta. of Maine, p! 676, sec. 21. 
 
 Michigan. — All suitable rewards and other sums of money, necessarily paid for advertis- 
 ing and apprehending any convict that may escape from the prison, shall be allowed by ■ the 
 auditor general, and paid- out of the state treasury. Rev. Sts. of Mich. ch. 172, see. 60. 
 
 Virginia. — The governor may offer a reward for apprehending And securing any person 
 convicted of an offence or charged therewith, who shall have escaped from prison, or for ap- 
 prehending and securing aBy person charged. with an offence, who, there is reason to fear, 
 cannot be arrested in the common cpurse of proceeding. But ho such reward shall be paid 
 to any sheriff, sergeant or other officer, who may arrest such person by virtue of any pro- 
 cess in -his-iiahds to be executed. Rev.. Code of Va.,,pp. 105, 106, sec. 7. 
 
 If any convict escape from the penitentiary or from the custody of the superintendent, he 
 may offer a reward fpr the apprehension and re-delivery of such convict, not exceeding five, 
 hundred dollars, one half thereof to be paidby the institutioji and the other by thesuperin- 
 tendant, his assistants and the inferior guard, in proportion to the, amount of their salaries. 
 
 None, of said officers, shall be entitled to any such reward, or any part of it, unless ex- 
 pressly authorized by the superintendent. Rev. Code of. Va., p. 796, sees. 49, 50. 
 
190—2 - costs. 
 
 • 
 may be granted by "the examining magistrate or magistrates: in respect 
 
 of the expenses of any prosecutor, or witness or witnesses for- the pro- 
 secution, or other person, of attending before: such magistrate or mag- 
 istrates, and of any compensation for trouble- and loss of time 'therein, 
 in any case where, any court or judge is empowered under the said stat! 
 7 G. 4, c. 64, or any other Act'or .this Aetata, .order payment, of such 
 expenses or compensation,— and concerning the forms of such certifi- 
 cates and the details or particulars to he inserted therein of the expen- 
 ses, trouble, and loss of time to which such certificates relate ; and it 
 
 shall be lawful for one of Her Majesty's principal secretaries of 
 [*191] state from time to-time to alter any such regulations, *or make 
 
 new regulations in relation to any. of the matters aforesaid, and 
 such regulations for the time being shall be binding' on all 'courts and 
 persons whomsoever. 
 
 ... (A) Costs- taped, and order for the same.- 
 
 By stat. 14 & 15 Vict. c. 55, s. 6, in all cases where the expenses, &c, 
 of prosecutors or witnesses shall be allowed, — and in all case's where 
 the court shall order payment (except as hereinafter mentioned) to any 
 person, who may appear to have been active in or. towards the, appre- 
 hension of any person charged with any offence, of compensation for 
 expenses, exertions, and loss of time in or towards such apprehension, — 
 the amount of such costs, expenses, or compensation shall be ascertained 
 by the proper officer of the court, according to the regulations made 
 under this Act f — and where the expenses and compensation in respect 
 of attending before any examining magistrate or magistrates are so or- 
 dered to be paid, such expenses and compensation shall also be ascer- , 
 tairied by the proper officer of the court according to such regulations, 
 but the amount thereof as so ascertained shall, not exceed the amount 
 mentioned in the certificate of the-examining magistrate or magistrates, 
 and save as. aforesaid, the certificate of any examining magistrate or 
 magistrates shall not be conclusive as to the amount to be allowed for 
 expenses of attendance before him or them, or for compensation, foj» 
 trouble or loss of time therein. ' 
 
 By stat. 7 G. 4, c. 64, s. 24, the order for payment to the prosecutor 
 or witness shall be forthwith made out and delivered by the proper of- 
 ficer of the court unto such prosecutor or witness, upon being paid the- 
 sum' of one shilling for the prosecutor, and sixpence for each of the 
 other persons, and in ordinary cases shall be made on the treasurer of 
 the county, riding, or diyision in which the offence was or isj supposed 
 to have been, committed. Or if the offence have been committed'in a 
 liberty, franchise, city, or- town, not contributing to the payment of the 
 county rate, it shall be paid out of the rate, in the nature of a county 
 
RESTITUTION OP -STOLEN GOODS. 191 
 
 rate, or out of any fund applicable to similar purposes, -where there is 
 such a rate,. By the treasurer or officer having 'the collection or disburse- 
 ment of the same ; "or where there is no such rate, it shall be paid out 
 of the rate for the' relief of the poor ; and the order shall be directed 
 accordingly. (a) And where a prisoner, charged with having commit- 
 ted a capital offence in any town or place having exclusive jurisdiction 
 shall be committed to the county -jail for trial at the assizes, in pursu- 
 ance of stat. :1-Gr. 4, c. 14, the expenses the county shall be put 'to 
 by reason > of such commitment shall also be paid by such town or 
 place.(5) 
 
 *And in cases, where an indictment for an offence commit- [*192] 
 ted in a county of a- city, or of a town, is preferred at the as- 
 sizes for the adjoining county, as -men'tioned,-(c) the order for expenses 
 of the prosecutor and witnesses, &c, shall be- directed to the person, who 
 should have.'been ordered to pay the same if the prisoner had been 
 prosecuted for the offence in such county of a city,„&c. ;(d) and an order 
 to pay the expenses the county shall have incurred -by 'reason of the 
 removal of the prisoner there for trial, &c, shall be directed in like 
 mahner^e) : • 
 
 The -order for payment of expenses, &c, "to- persons active in appre- 
 hending pertain offenders, as' above mentioned, is made out b'y]the of- 
 flcer-of the court ; that ma,de on the death of such person, is made by 
 the court itself; in both instances the order is directed tp the sheriff of 
 the Gounty, who pays the amount; and is' repaid by the • -commissioner s 
 of the Treasury.^.) 
 
 .• 5. •'Restitution, of stolen goods. . 
 
 ".As. to- goods,. &c.,^ obtained by. larceny, embezzlement, or false pre- 
 sences, or by "knowingly receiving, the. same, the stat." 7 fy 8 ,Gr. 4, c.,29, 
 s. 57, "to encourage the -prosecution of offenders," enacts, that if any 
 person, guilty of any such felony or misdemeanor, in stealing, taking, 
 obtaining, or converting, or in knowirgly receiving any chattels, money, 
 valuable security, 'or other property whatsoever, shall be indicted for 
 any such offence;.- by or on behalf of the- owner of the, property or his' 
 executor, or administrator, and convicted thereof, — : the property shall 
 be restored to the owner or his representative ; -and the. court before 
 whom any such person shall be so convicted, shall have power to award 
 from time to time writs of restitution for the said property, or to order' 
 the restitution thereof in a summary manner: provided always, that if 
 
 (a) Id; s. 25. See R.y. -Treasurer of the_ (d) 38 G. 3, o. 52, s. 3 ; 14 & "15. Vict. c. 
 
 Borough of -Oswestry, 12 Shaw's J. IT 13. 55, s. 23. # 
 
 (5) 1 G. 4, o. 14, s. 3. (e) 51 G. 3, c. 100, s. 2-.. 
 
 '(c) Ante, p. 64. . (?) 1 G. 4, o. 64, sa. 29, 30. 
 
192 RESTITUTION. OF STOLEN ' GOODS. 
 
 it shall appear before aiay award" or. order made; that any valuable secu- 
 rity shall have been bona fide paid or discharged by some person or body 
 corporate liable to the payment- 'therebf, or being a negotiable instru- 
 ment shall haVte been bona fide taken or received, by transfer or -deliv- 
 ery, by some person or body corporate, for a just and valuable' consid- 
 eration, without any notice, and without any reasonable cause, to sus^ 
 pect that the same had by any felony or', misdemeanor ieen stolen, 
 taken, obtained, or converted as aforesaid, in suob case the court shall 
 not award "or order the restitution of , suo$ security. A -bank of -Eng- ' 
 land note, which>had been paid and cancelled^ was holden to be .within' 
 this latter proviso, (a) [1] ' 
 
 0) R. v. Stanton, 1 Car.&P. 4S1. . .. . 
 
 [I] At the common law there could be. no .restitution of goods upon an indictment;, be- 
 cause that mode of prosecution is nominally instituted by. the crdw,n, for the public advan- 
 tage ; -and, therefore, in order to favor the party injured in bringing his appeal; no indict- 
 ment was usually preferred" against the offender, ' till after the time had passed in which an 
 appeal might be commenced against him. - 3 Inst. 242 ; 4 Bk. .Com. 362. But as it was,, at ' 
 length, "c6nsidered, that the party who .prosecutes for the'injury done to "the public, deserves 
 fully as much compensation as he who institutes an appeal, restitution of goocls was given 
 on the cpnvictton of a party indicted. To'this end, the statute. 21 Hen. 8, c.'ll, enacts, that 
 if 'any felon robs or'steals money, or any other- property, arid^isjafterwards found, ,gnilty or 
 otherwise attainted of the crime, in consequence of evidence" given by the party injured, or 
 
 •by any other person by his procurement, the owner shall "be restored to his property, and a 
 writ of restitution maybe awarded hy the justices. The construction of this aet.being, in 
 agreat degree comformablato the law of appeals 'of robbery, the latter proceeding hasfallen 
 into total disuse. 4 Bla. Com. 363. It seems, therefore, that if the prosecutor / has- been 
 guilty of any gross neglect in his duty to the public, in bringing the. offender to justice, he 
 will not be entitled to the benefit of this statute, for it was only by prompt and vigorous ex- 
 ertion, that he could obtain his goods on' an appeal. . 1 Hale, 540 ; Hawk. b. 2, c. '23,- s, 56. 
 'Williams,- J. Eeiony, IX ;, Burn, J. Restitution of stolen gpods. It is' not, However,, neces- 
 sary that fae should take the robber oh fresli suit, but it will be sufficient if he used his en- 
 deavor; and if the caption be afterwards, made by the- sheriff or other officer,, and he imme- 
 diately institute proceedings, he will "be entitled to the remedy.- 1 Hale, 540; Com. Pig. 
 Justices, A. ; Barn, J:- Restitution of stolen goods." So if, after the prosecution is commenced, 
 and before trial, the offender, dies or .breaks^ pris6n, or if he stands 'mute, t challenges more 
 
 ' than the number he is. allowed^ without assigning a reason, or is admitted to the benefit of 
 clergy, the right of the p^rty injured will not be subverted. 1 Hale, 540 ;- Burn, J. Resti- 
 tution of stolen .goods. Nor is it only when he himself is personally robbed, that ha has a 
 right to demand- restitution. If the pjoperty has been taken-from a servant, and the latter, 
 
 ■ by the procurement of his master, gives evidence on which the offender is convicted, the 
 owner will' regain his property. 1 Hale, 542 ;. Staunf. 16.7 ; Com. Dig. Justices, A. ;' Burn, 
 J, Restitution of' stolen goods. So if the robbery was committed ' on an individual, who is 
 since deceased, and th'o oriminal is brought to justice by the exertions of the personal 'rep- 
 resentative, he will receive it, as the party himself would, if iliving^ecause this statute is 
 to receive a beneficial- construction. 3 Ins't. 242; 1 Hale, '542; Burn, J. Restitution "of 
 stolen goods. But this act extends only to the oase of felony- and therefore, if goods bo 
 taken by, a mere fraud, the court have no power to award restitution, nor has the owner any 
 right to seize tffom from a bona fide possessor.' 5 T. R. 176; 2 Leach, 585 ; 2 East, P. C. 
 780, 839; Com. Dig. Market, E. ; Burn, J. Restitution of stolen goods. 
 As to what goods the owner may recover, it seems that, if the felon Waivo them, in his 
 
RESTITUTION OE. STOLEN GOODS. 192 — 1- 
 
 flight, on being pursueij, tliey will bepome vested in the lord of th,e franchise ; but the pro- 
 perty of the party robbed is rather Suspended T;han destroyed, for after having performed his 
 duty^ in bringing "the offender to justiqe, he will again be at- liberty to', claim, them. 5 Co. 
 109_; Kel.49; 1 Hale, .541; Hawk. b. 2, c. 23,. s. 4a; Com. Dig. Justices, A; Burn, J. 
 Restitution of stolen goods. And if the things stolen have been converted into money, the 
 owner may- have the produce,, instead of the special chattel ; for the case,.1;hough not within 
 the words, is clearly, within the equity'of the statute. Noy, 128.; Loft, 88 ; 1 Hale, 542 ; 
 Burn, J. Itestitu.ti.on of stolen goods ; "Williams,- J. Felony, "VIII. And it seems to be the 
 stronger opinion; though'it was-fbrmerly a matter of dispute; that if the. goods stolen have 
 been openly sold in market overt, the owner may have them restored, even from an innocent 
 purchaser.- Zel..48,'35; 1 Hale, 542, 543, 4; Hawk. p.. 2, o. 23, s. 54; . 4 Bla. Com. 363; 
 Com. Dig. tTustices,' A. id. Market, E,; "Williams,' J. Felony, VIII, And though this may seem 
 hard upon the buyer, who'has-given'valup for them, it should.be remembered, that either he 
 or the original owner must suffer, and that the former has-done a meritorious aot in bringing 
 an offender to justice ; -whereas the - merit' of the latter is only negative, in" having been 
 guilty of no unfair transaction. 4 Bla. 'Com. 363."" The maxim, therefore,- " spoliates debet 
 ante omnia restitui," is founde"d.on a principle of equity. But this, rule cannot be extended, 
 so as to affect any .intermediate possessors of the property who have sold" it before convic- 
 tion ; and the -owner cannot maintain trover against- them, even though he gave them notice 
 that it was stolen, while it remained in -their possession. 2.T. H/ldt) ; 2 Leach, "586, u. (a). 
 Burn, J. Restitution of stolen, goods-; "Williams, J._ Felony, VIII. .And the prosecutor can 
 never, recover any other things-than those stated in the indictment.; but.any- others which 
 might have been stolen, will" be forfeited to his majesty. 5 Co". 1 10 ; Kel. 49 ; 1 Hale, 545 ; 
 Com. Dig." Justices, A. ; Burn, J. Restitution of stolen goods. 
 
 The justices-of jail" delivery are, by the statute' 21 Hep. 8._c. ll-'directed to award a writ 
 of restitution to the owner, as spon as the felon is convicted. But, it is said, that no 'such 
 writ has, for upwards of two hundred years, been-issued ; but the constant practice is.fbr 
 the judgesor justices, without any prece.pt, to-order thegoods brought into court to be re- 
 stored to the. parties indicting. Loft; 88; 4 Bla. Com. 363-; "Williams, J. Felony, VIII. 
 And, after.the conviction- of the offender ''Che proprietor may take his -goods wherever he can 
 find them,so that it be effected without any breach of- the peace, because' he satisfied .pub- 
 lic justice, and is. entitled to a writ of restitution, whenever he thinks fit tp,demand it. . 1 . 
 Hale, 6'46; 4 Bla." Com. 363 ; Williams,- J. Felony,- VIII. And if the felon-be-pardoned after 
 conviction, and allowed' the benefit, of clergy, or even if he be bona fide acquitted, the owner 
 may bring .an action against Mm, in trespass or trover, to- recover, damages ; for the civil, 
 right was not merged in- the public' injury, T)ut wily suspended, till the prosecution was con- 
 cluded. 12 East,- 409; "Loft,- 88; 1 Hale,,. 546; Baa Abr. Trespass, E. 2 ; Trover, D. ; 4, 
 Bla. Com. 353 ; "Williams, J. -Felony, VIII. .But no action lies before prosecution j. because: 
 if this were allowed, the inducement to' punish offenders, would, in a great degree, bo re- 
 moved, and parties would seek their own immediate advantage, rather'than the security of. 
 the public. . 1 Hale, 546, 1 ; Noy, §2; 4 31a. Com. 363; "Williams, J:" Felony, VIII. Nor 
 can the goods b'e taken again, though the .original'owner find them, for the same' reason ap- 
 plies ; and if -it is done with intention to- compound the; offence, it will amount tb theft bote, 
 and the -party will be punishable by imprisonment and.fine. 1 Hale, 546 ; 4 Bla. Com. 363 ; 
 Burn, J. Restitution of stolen goods. There is indeed a kind of statutable-' exception.to this 
 rule, by 31 Eliz. c. 12, which provides, that if horses are stolen and sold in market/overt, the 
 owner may claim them within six months, and on paying the buyer the price for which he"' 
 purchased them,- may obtain them again, without instituting a prosecution against the of- 
 fender;. (2 Bla. Com. 450, 1 ; Com. Dig. Market, E.) and this statute, as well as-' the 2 P. &-. 
 M. c. 1, contains several regulation's as to the. sale of horses, in particular in market overt,- 
 whiohif not observed, render the sale wholly inoperative ; and the original owner may sue 
 the party who withholds the -horse, though* he has neglected to prosecute. Id. Ibid. It has 
 been heldj that a complaint having been made to a magistrate by A. the owner, that his 
 horse had been stolen, by B. without actual proof of its being stolen, an officer, though arrng^ 
 
 77 
 
192 — 2 RESTITUTION ©J? STOLEN GOODS, 
 
 ■with a warrant against A. was not justified, under the si Eliz. e, 12..S. £, in taking the horse 
 out of the possession of a bona fide -purchaser from B. 2 Stark. C. N. P. f 6. 
 
 It seems that if goods "are. restored in consequence .of an erroneous conviction, ' and .the- 
 judgment be reversed, a restitution Vas formerly awarded. Cro. Jac. 161 ; ' Oro. Eliz. 490. ' 
 
 New York.— When property alleged to have' been stolen shall come into the custody of 
 any constable, marshal, sheriff or other, person authorisied'to perform the duties of any siieh 
 officer, he shall hold'the same subject to the order of the' officers 'hereinafter authorized' to 
 direct the disposition'thereof. ■•" ' . .'...' ' .', : ' ■'.' 
 
 Upon receiving Satisfactory proof of the title of any owner of such property, the magis- 
 trate who shall take' the examination of the person accused'of stealing such property; may 
 order the same to-be delivered!, to^such owner,, oh his paying -the reasonable and .necessary 
 expenses incurred In the preservation of sueh'property, tobe'certifled.by such magistrate : 
 which order shall entitle such owner to demand and receive such property. .- 
 
 If stolen property shall come. into the custody of anyr.juStice of the peace 'or other magis- 
 trate, upon satisfactory -proof of' the title of any owner thereof, it shall be" delivered to" him, 
 on his paying 'the* reasonable and necessary expenses incurred in the preservation of such 
 property, to.be certified- by such magistrate. 
 
 If property, stolen shall not have been delivered to the, owner .thereof, the court before 
 which 'a conviction shall be, had for the stealing of such property, ' may upon pro.of.of the 
 ownership of any person, order the same~to be restored to him. . 
 
 If stolen property shall not be .claimed by the owner thereof before the expiration of six 
 months from the time any person shall have been convicted of stealing such property, the 
 magistrate, sheriff,- constable, or other officer or person having the same in his custody, shall' 
 deliver such property to the county superintendents' of -the poor, on b'eiiagjpaid the reasona- 
 ble and necessary expenses incurred in the preservation thereof to b;e appropriated to the 
 use of the. poor of such county, -Rev. Sts. of New-Tork, vol. 2d. (4th ed., Banks, Gould A' 
 Co., 1852,) p. 930, .seas. 37/38, 39, 4-0,41. ^ ' - _', _'.''- •-' ., . 
 
 . Massaghusetis.— The 'officer, who shall arrest airy person, charged, as principal or acces- 
 sory, In any robbery or larceny,- shall secure the property alleged to be stolen, ahd.shall be 
 answerable for the same, and he shall annex a schedule thereof to his return ; and --upon 
 conviction of the offender, the stolen ^property shall be restored fo the 'owner: - Rev, S.ts'. 'of 
 Mass. "p. 724, sec. 25. . A t ' , . ' ... , 
 
 Pennsylvania.— And .whereas it is reasonable and just, that'restitution of gpo'ds stolen 
 by robbers and burglars, or of their value', should be made to the lawful owners, before any 
 forfeiture to the public should take place. v That, wherever any person .ior persons shall be 
 convicted of robbery or burglary,- such person or-persons shall be ordered to restore to the 
 lawful owner or owners the goods and chattels so .stolen, or to pay to him, her or'them, the. 
 full value thereof, or of so much thereof as shall not be restored, and- the- forfeiture of his, 
 her or their lands and chattels shall only extend to the residue thereof^ after such restitution 
 made as aforesaid; and the owner or owners of goods and chattels, stolen .as aforesaid, shall 
 haye like remedy for restitution by executions^ssued by the court,., in which the attainders 
 shall be had, as is provided by an act of assembly in the case- of conviction of larceny, en- 
 titled, " An.'act for the advancement of justice,. and mqre certain administration thereof." 
 
 And whereas persons accused of burglary,, robbery or larceny, frequently have "stolen - 
 godds.in their possession, the owners whereof may not be known, and it. is reasonable, that 
 such gpods should be- secured for a time, for the benefit of the owners. That when any per- 
 son shall be-accused before a magistrate, upon path or affirmation, of any of the said crimes, 
 and the said magistrate shall have issued his warrant to apprehend such person or persons, 
 or to search for such goods as have been described oh oath or affirmation to have been stolen, 
 if any goods shall be found in the custody or possession of such person or persons, or in'the 
 custody or possession of any other person or persons for his, her or their -use, and there' is 
 probable cause; supported by, oath or affirmation, to suspect that other goods which may be 
 discovered on sueh search are stolen, it shall and may "be lawful for the said magistrate to 
 direct the .said goods to be Seized, and to secure the same in his own custody, 'unless the per- 
 son in whose possession the same were found shall give sufficient surety to produce the same 
 
RESTITUTION OE STOLEN- GOODS. 192—3 
 
 at the time of his. or her trial ; and the said magistrate shall forthwith cause an inventory to 
 be taken of the said goods, and shall file the' same with, the clerk of that court in which the 
 accused person is intended to' be prosecuted?, and shall give, public notice in the newspapers, 
 or othorwise, by advertising the same'in three or more public places in the city or county, 
 where the offence is charged to have been committed, before the time-of trial-noting, in such 
 advertisement, the said inventory,- the' persoryoharged, and time of trial ; and if on such/trial 
 the accused party shall be acquitted, .and no other claimant shall appear, or suit be com- 
 menced, then, at the expiration of "thr^e months, such goods shall be delivered to the party 
 accused, /and he,"she or' they shall be discharged, and the county be liable to the. costs of 
 prosecution ; .but if he or s"he be Convicted, of larceny Only, an'd after, 'restitution made to the 
 owner-, and the sentence of the' court being fully - complied with, shall claim a right in the 
 residue of the said goods, and no other owner shall appear or claim the said goods', or any 
 part of them,. that then it shall Be lawful, notwithstanding the claim of the said. party .ac- 
 cused, to detain such, goods for the term of nine months, to the end that all .persons having 
 any claim thereto may have full opportunity to come, and to the satisfaction of the court, 
 provetheir propertyin them, on which proof the said owner" or owners, respectively, shall 
 receive the said goods, or the' value , thereof, if from their perishable nature,, it shall have 
 been found necessary to make sale-thereof, upon paying -the reasonable charges incurred by 
 the securing.the said goo'ds,' and establishing their property in the same ; .but if no such claim 
 shall be brought, "and duly supported, then the. person so convicted shall be entitled to the 
 remainder of- the said: goods, or the value thereof; in" case the same- shall , have been sold, 
 agreeably to the original inventory; but. if,, upon ah attainder of burglary or robbery, the 
 court shall, after. due inquiry, be of opinion that the said' goods were not the property of 
 such burglar or robber, they shall be delivered, together witha certified copy of the said in r 
 ventory, to the commissioners of the county, who shall indorse' a receipt therefor on the orig- 
 inal-inventory, registe'rth'e said -inventory in a book, and also cause the same to be publicly 
 advertised, giving notice to all persons, claiming the said goods-to,prove their property therein 
 to. the said commissioners ;' and unless such proof shall be made within three months from 
 the date of- such advertisement, the said goo'ds shall ; be publicly , sold, , and the neat monies 
 arising from such sale" shall be paid into the county treasury, for the use of the common- 
 wealth. Provided always, nevertheless, -That if any claimant shall appear within one year, 
 and prove his or her property in the said goods, to the satisfaction of the commissioners, or, 
 in the" case of dispute, shall obtain the verdict of a" jury in favor of such claim,- the said 
 claimant shaiUbe entitled to recover and receive, from the said commissioners ok treasurer, 
 the neat amount of the monies paid as aforesaid into, the hands, of the said .commissioners, 
 or by them paid into, the treasury Of this, commonwealth. - Dunlop's Laws of Penn., pp. 185, 
 186, sees. 9; 10. 
 
 Maine. — The officer who shall arrest' any person, chargedas principal or accessory in any 
 larceny, or with buying, receiving or concealing stolen property, shall, secure- the property al- 
 leged to have been stolen, and shall be answerable for the same ; and shall annex a schedule 
 thereof to his return ; and, upon conviction of the offender, the stolen property shall be re- 
 turned to the owner; Rev. -Sts. of Maine, -p. 672, sec. 14. 
 
 Mississippi.-— , !iny person convicted of larceny to the value of twenty dollars, 'or upwards, 
 or as accessory thereto, shall restore the goods or chattels so stolen to the rightful owner or 
 owners ; ' or shall pay to him,, her, or them, the value of such goods or chattels as shall not 
 be restored. 
 
 If any person pr persons shall' feloniously take, steal, and carry away any goods or chat- 
 tels under the value of twenty dollars, or shall be accessory- thereto, before tho.fact, he,she, "" 
 or they, being thereof legally convicted, -shall be deemed' guilty of petit larceny, and shall 
 restore the goods and chattels' so Stolen, to the owner or owners thereof; ' or pay the value 
 thereof to such owner or owners; and shall receive any number of lashes not. exceeding 
 thirty-nine. Hutchinson-s Mississippi Code, p. 938, sees. 18, 19. 
 
 Michigan. — The officer; who shall arrest any person charged as principal or accessory to 
 any robbery or larceny, or with buying, receiving or aiding in the.cbncealment of any money 
 or other property, knowing the same to have been stolen, shall secure the property alleged 
 
193 , THE RECORD. • 
 
 [*193] *6. The record. .- 
 
 The following is the form of the record when made up : " 
 
 Warwickshire ) Be it remembered that at [&c, as in the caption of the 
 to wit. j indictment,(a)<ben cog j theindictmenfto-theend.' Then 
 state the arraignment, &c, thus: Afterwards to wit. at the same ses- 
 sions of the Lady the Queen of oyer and terminer [or sessions of the. 
 
 peace'] holden as aforesaid on Friday the - — - day of — -, in the — 
 
 year of -the reign aforesaid, the said A, B. being brought to the bar of 
 the court here, and the indictment aforesaid being read unto him, and 
 being demanded concerning .the premises in the said indictment above, 
 specified whether he is guilty or -not guilty thereof, safth that he is not 
 guilty thereof, and thereof puts himself upon the country: therefore 
 let a jury thereupon here immediately come before the said justices of 
 the Lady the Queen, of fre"e and lawful men of the' county of Warwick 
 aforesaid, by whom the truth of the- matter may be the better knqwi) 
 and who are not of kin to the' said A. B., to recognize' upon their oath 
 whether the said A] B. be guilty of the [felony and murder] in the said 
 indictment aforesaid above^ specified,, or riot guilty: and the jurors of 
 the said jury for this purpose by the 'sheriff of Warwickshire impanelled 
 and returned, to wit Gr. H., \&c, stating the names of the jurors,] being 
 ealled, come, who. being elected, tried and sworn to speak the truth of 
 and concerning the 'premises, upon their oath say that the said A. B.is 
 guilty of the [felony and rnurder] aforesaid, on him above' charged in 
 manner aforesaid, as by the indictment aforesaid is above supposed 
 against him : [And upon this it is forthwith demanded of the said JL If. if 
 he hath or knoweth anything to say, wherefore the 'said justices here ought, not 
 upon the premises and verdict aforesaid to proceed to judgment and execution 
 against him; who nothing further saith unless as, he before had said:] 
 Whereupon all and singular the premises being seen,- and by the said 
 justices here fully understood, it is considered by the court here that 
 the said A. B. [oe taken to the jail of the said Lady the -Queen of the said 
 couHty of Warwick, from whence he came, and from thence to the place of 
 execution, and there be hanged by the neck until he be dead. 
 
 Where there are two or more counts in the indictment, care must be 
 
 taken in entering the verdict and judgment. Where an indictment 
 
 against the principal and receiver, contained two counts against 
 
 [*194] the principal, one for stealing a bank note, and *the other for 
 
 (a) Ante, pp. 16, 11. 
 
 to bo stolen and hold the same irrepleviable, and shall be answerable for the same, and he 
 shall annex a schedule thereof to his return, and upon conviction of the offender the stolen 
 property shall be restored to the owner. Rev. Sts. of Mich. pp. 666, 666, sec. 24. 
 
APPEAL TO THE CRIMINAL APPEAL COURT. 194 
 
 stealing a pocket' book, and the receiver was charged • with know- 
 ingly receiving them ; and the principal was found guilty on the second 
 ^count only, and the receiver found guilty" ofthe offence aforesaid," this was 
 holden bad, for it Was uncertain to which -offence the finding referred.(a) 
 So" where there were two counts -for felony in /the indictment, and the 
 jury process was to try whether 'the prisoner was guilty "of the felony 
 aforesaid," and the verdict was, that, he is guilty "-of the felony afore- 
 said;" this was holden bad, for the word " felony" is not nomerir collecti- 
 
 ■ , : SECTION V. ■ 
 
 ■ APPEAL TO THE. CRIMINAL APPEAL COURT. [2] 
 
 (a) The- court and its judges. 
 The establishment of a criminal court of appeal, by stat. 11 & 12 
 
 (a) y B. v. Graham, 1. Leach, 82; 2 Hawk. , T. R. 149. 
 
 0. 25, s: 72, n. ; and see .R.-V. Salamans,-! <• (6) 10 Shaw's J. P: 327. 
 
 [1] If the jury, through mistake', or evident partiality, deliver an.improper, (1 And. 104. 
 Alleyn r 12. 2 Hale, 299, 300. 2 Hawk. oh. 47, § ■!},) or.an informal or insensible verdict, or 
 one that is not responsive- tothe issue submitted, (2 Murph. 571,) they may be directed by the 
 court tb reconsider it, arid be" recommended to make an alteration. Thus where the decision 
 is repugnant, as if they find one alone guilty of a conspiracy, arid acquit the other, they 
 will, on explanation that they can not find that onepe'rson alone was guilty of a conspiracy, 
 withdraw, and may on reconsideration, find both the defendants guilty. Bro. Ahr. Jurors, 
 
 1. Bacr Abr. Verdict, (G-.) But it is said this has been seldoin done in modern' times, when 
 the decision is in the defendant's favor,' 2'Hawk. ch. 41, §§ 11, 12. 1 Chit. Cr. L. 648. 
 
 Where the verdict is so imperfect .that no judgment can be given upon it, it will be neij 
 aside and a venire de novo awarded,.in misdemeanors. l.Ohit. Cr. L. 646. 2 H'Cord, 129. 
 4 Leigh, 686. But it seems doubtful whether this ought to be done in capital cases ; (Id. ib. 
 1 Ld. Raym. 141. 2 id. 1585 ;) arid.at all events the court iriay enter a judgment of acquit- 
 tal. 2 Ld. Raym. 1586. Such a discharge, however, by reason of an imperfect verdict, will . 
 be no bar to another prosecution- for the same felony. 3 P. Wm's. 439." 
 
 [2] Massachusetts. — Every person conyicted Wore a justice.of the peace, of any offence 
 in any county except Suffolk, may appeal from the sentence to the court of common pleas, 
 then next to be held in the same county; and such appellant shall be committed, to abide 
 the sentence of the said court, until he shall recognize to the commonwealth, in such rea- 
 sonable sum, and with such sureties, as the justice shall require, with condition to appear at 
 the court appealed to, and there to prosecute- his appeal, and to abide the sentence of the 
 court thereon, and in the mean time to keep the peace, and be of good behavior. , ) 
 
 The justice/ on such appeal, shall make a copy of the conviction and other proceedings in 
 the case, and transmit the same, together with the recognizance, if any shall be taken, -to 
 the clerk of the court appealed to ; and the fees of the justice therefor shall "be paid from the 
 county treasury, in like manner as other costs in criminal prosecutions are paid. 
 
 The appellant shall not be requited to^advance any fees, upon claiming his appeal, nor in 
 prosecuting the same; but if convicted in the court of common pleas, or if sentenced, for 
 
194^-1 APPEAL TO THE CRIMINAL APPllAL COURT; 
 
 Vict. c. 78, is the -greatest improvement which, has perhaps ever been 
 made in the administration of our criminal law, so far as relates to in- 
 failing to prosecute his appeal, he may be required, as part- cf his sentence, to pay the. whole 
 or any part .of the costs of prosecution. -'■■ 
 
 If the appellant shall; fail to enter and prosecute his appeal, -he 'shall he defaulted on his 
 recognizance, if any was taken, -and the court of common pleas may award sentence against 
 him, -for -the offence whereof ie was convicted, in - like manner as if he had been convicted 
 thereof in that court.; and if he is not then in custody, process' may beissued- to bring him 
 into court to receive sentence. • 
 
 Every person, convicted in the- court of common pleas, upon" any irfdictment for a libel, or 
 for a nuisance or a conspiracy, or- who shall -be convicted of any crime.or offence, for'which 
 he may be punished by imprisonment in the state prison; or elsewhere, for a term exceeding 
 five years, may appeal-therefrom to the supreme judicial" court, next to be held' for the same 
 county, if such appeal shall bp claimed a convenient time before the end of the term at which 
 the conviction is had ; and such appellant shall be committed,' to "abide the sentence of the' 
 supreme judicial -court, until he .shall recognize, to .the commonwealth, in such reasonable 
 sum, and with such sureties, as the court of common pleas, shall order, with- condition, to 
 appear at the court appealed to, and there to prosecute his appeal, and to abide the sentence 
 of the court thereori, and in the mean time to keep the' peace, and.be of'gbod behavior. 
 
 The clerk of the court of commoft'pleas,'upon such appeal, shall make out a copy of the 
 conviction of the appellant, and of the other" proceedings in the case,^and place the' same, 
 together with the recognizance, when any shall be taken,ArpoS the files of the supreme judi- 
 cial court ; -and such appeal shall he entered at the next term of the court, or, at the'option 
 of the appellant, it may be entered at any session of such court, held by adjournment, if any 
 such session shall be held. before the next stated term; provided, that the appellant, at-'the 
 time of claiming the appeal, shall give notice 'of his intention so to enter it, to the district 
 attorney, or other prosecuting officer. / . , 
 
 The appellant shall not be required to advance any fees; upon claiming his appeal, notin 
 prosecuting the same ; but if he shall be convicted in the -supreme judicial court, or if sen- 
 tence be awarded against himfor. failing to prosecute his'appeal, he may be required," as a 
 part of his sentence, to pay 'the whole or any part of the costs of prosecution.. ■ , , -■ 
 
 If the appellant shall fail to enter and prosecute his appeal, he shall' Be defaulted on his 
 recognizance, if any was taken, and the supreme judicial court may. award sentence against 
 him, for the offence whereof he was convicted, in the same manner as if he had been con- 
 victed of such offence in that court ; and if he is not then in custody, process may ba issued 
 to bring him into court to receive sentence. i' 
 
 Whenever, upon suit brought upon any recognizance to prosecute an appeal, the penalty 
 thereof shall be adjudged to be forfeited, or when, by leave Of court, such penalty shall have 
 been paid to the county treasurer, or to the clerk of the court, without a suit, or before judg- 
 ment sball be given, in the manner provided in the. one hundred and thirty-fifth chapter, if, 
 by law, any forfeiture shall accrue to any person, by reason of the offence, of which the ap- 
 pellant was convicted, the court may award to him such sum as he may be entitled to, out 
 of such forfeiture. 
 
 The supreme judicial court, and the court of common pleas, may, at the term in which the 
 trial of any indictment shall ^e "had, or within one year thereafter, on the petition or motion 
 in writing of the defendant; grant a new trial, for any cause for which by law a new trial 
 may be granted; or when it shall appear to the court that justice has' not been done, and on 
 such terms or conditions as the court shall direct. 
 
 Any person, who shall be convicted of an offence before the court of common pleas, being 
 aggrieved by any opinion, direction or judgment of the court, in any matter of law, whether 
 he have a right to appeal therefrom or not, if an appeal be not actually , taken, or, having 
 been taken, if it be waived by leave of the court, may allege .exceptions to such opinion, di- 
 rection or judgment ; which exceptions, being reduced to writing in a summary, mode, and 
 
APPEAL TO THE CRIMINAL APPEAL COURT. 194r— 2 
 
 dictab.le offences. It gives a defendant the full effect of a writ of error, 
 speedily ,*and with, little expense' to either party ; and the doubt or diffi- 
 
 presented.to the court, a convenient time before the end of the term, and found conformable 
 to the truth of the case, shall be allowed and'sighed by the presiding justice thereof, and 
 thereupon all further proceedings in the case, in that court, shall .be stayed, unless it shall 
 clearly appear to the. presiding jusjice, that such'eXceptions are frivolous, immaterial, or in- 
 ■tend^d only for delay, and in that case, judgment may be entered, and sentence awarded, in 
 such manner as the court niay deem reasonable, notwithstanding the allowance of such ex- 
 ceptions. 
 
 If, upon the trial of any person, who shall be convicted in the"court of common pleas, or 
 municipal court of the "city of Boston, any question of law. shall arise, whichj in the opinion 
 of the presiding judge, shall be so important ,or so doubtful as to require the decision of the 
 supreme judicial court, he shall, if the defendant' desire it or consent thereto, report the case, 
 so far as may be necessary- to present the question of law arising therein ; and thereupon all 
 further proceedings in that court shall be stayed. . . .-■'"",. 
 
 Any person, who shall file exceptions, or for whose benefit a" report shall be made by the 
 judge, as-is provided in .the two preceding sections, may recognize to the commonwealth, in 
 such sum as the court shall order, with sufficient sureties, for his personal appearance at the • 
 supreme, judicial court, next to be held fer the same county, and to .enter and prosecute -his 
 exceptions with effect,- and abide the sentence thereon, and -in the mean time t'o keep the 
 peace and be of good •b'ehavior. ' 
 - If .such person shall -ijot so recognize, he shall'be committed to prisoD,'1;o await the deci- 
 sion of.the supreme judicial court; andinthat ease, the clefk of the. .court,' in which the con- 
 viction was had, shall file-a certified copy of^the record and proceedings in the case, in the 
 supreme judicial court, and the'-court'shall have.cbgnizance thereof, and consider and decide 
 the cause, in the.same manner as they decide questions of law, reserved by One.of the jus- 
 tices of that court, -and shall render such judgment, and award such sentence, or make such 
 order thereon,. as law and justice shall require; and a new trial may be ordered, "at the bar- 
 of the supreme judicial court; or the cause may- be remanded to the court of common pleas, 
 for-a new trial. there, as the justices, of the supreme judicialcourt shall direct; but the pro- 
 ceedings herein prescribed shall not deprive any party of his writ of error, for any error or 
 'defect appearing of record. Rev. Sts. of Mass. oh. 138, sees: 1-14. 
 
 Every person convicted before -the police court of the city of Boston, of any offence,' may 
 appeal therefrom to the municipal court of the. city qf Boston, and the appeal must be entered 
 at tlfo next term of the municipal court, and be conducted and, disposed of, in all respects, 
 like appeals in criminal cases, from justices of the peace to the court of common, pleas .in 
 other counties. Eev. Sts. of Mass. ch.,8?; sec. .8. 
 
 Any person, convicted in the court -of common pleas, upon indictment for a libel, nuisance 
 or conspiracy, or for any offence, which is or inay be punishable by confinement to. hard la- 
 bor, for a term exceeding five years, may appeal therefrom, to the supreme judicial dourt; 
 then next to.be held for the'same county, in the manner and upon the terms prescribed' in 
 the one hundred and thirty-eighth chapter. Rev. Sts. of Mass._ch. 82, sec. 28. t 
 
 Any person, convicted in the municipal court of the city of Boston, upon indictment for a 
 libel) nuisance or conspiracy, or for any offence which is or may >be punishable by confine- 
 ment to hard labor, for a term exceeding five years, may appeal therefrom to the supreme 
 judicial court for the county of Suffolk, in the same manner that is provided, in the .one hun- 
 dred and thirty-eighth chapter,. for appeals by a person convicted in the court of common 
 pleas ; and such appeal from the municipal court shall be prosecuted, conducted and de- 
 termined, in all respects, in the manner provided in, the last mentioned chapter, with respect 
 .to the said appeals from the court of .common pleas. Rev. Sta. of Mass. ch. 86, sec. 10. 
 
 "Where the proceedings in the court below are not according to the course of the common 
 "law, if there be anyerror, it may be corrected by certiorari. Olark v. Commonwealth, 4 Pick. 
 125, and this is the only mode of correcting error in such cases. Commpmwealfh Vi Mi?, 11 
 
194—3 APPEAL TO THE CRIMINAL.- APPEAL COURT. 
 
 culty being pointed out by the judge who tried the ease, affords the 
 judges of the appeal court Ytie best assurance they can hare, that no 
 frivolous objections will be submitted to them: 
 
 Maas. 465 ; Melvin v. -Bridge, 3 Mass. 30'5 ; Commonwealth v. -Blm Sill Twnp.; 5 Mass. '420. 
 The only object of the writ of certiorari in this .state' is the correction -of the errors commit- 
 ted in some cases by inferior tribunals. Howe's Prac. 491. 
 
 But the court of error's not having the same special jurisdiction as the court "below, can-, 
 not, on certiorari, render auch judgment as ought to have been rendered below, but can only 
 affirm the proceedings if found to be regular, or quash them if the -court below has exceeded 
 its jurisdiction, or proceeded, in a manner not warranted by the statute or other authority 
 under which it'acts. Commonwealth, v. EUis, 11 Mass. supra. Commonwealth v. Blue EiU 
 Twnp., supra. ' \ ' >, 
 
 The writ of certiorari is an original, writ issuing out of thesupremVcourt,- directed to the 
 judges or officers of inferior courts, commanding them to return the records of a cause de- 
 pending before, them,. in order that the party may have more sure and speedy justice done 
 him. See 1 Chit. Or. L. 371. The supreme court has power, at common law, to review the 
 proceedings of. all inferior tribunals ; to' pass upon the jurisdiction of such tribunals, and to 
 review all leggi decisions made by them, but not their determinations upon matters of fact ; 
 ■which are conclusive, unless a power of review is giyen by statute. 6 Wend.- 564. .See 4 
 Mass. R. 111. Where a new jurisdiction is created, to proceed according to the course of 
 the common law, it is always implied that a certiorari will, lie, to remove its proceedings. 
 But where a new special jurisdiction is to decide- according to other -rules, the implication 
 wUl not include it. 1 Chit. Cr.-L. 374. . 
 
 A writ of certiorari.lies to remove all judicial proceedings, except where -otherwise di- 
 rected by the express provision of some particular statute. Id. 376. 'But it does not lie _to 
 remove other than judicial acts; therefore it does not lie to remove a mere order of court or 
 -warrant of a magistrate.' ^d. ibfCald. 309. -Say. 6." See "2 Caines' R. 1J9. 6 Wend. 564. 
 
 A district attorney may remove a: criminal case to the supreme court by certiorari, as a 
 matter of course and of right. 7 Cowetf, 108. 
 
 The writ of certiorari is frequently used in order the better to consider and determine the 
 validity of indictments and proceedings thereon, and.to.prevent, a partial and'insufficierit trial f 
 for when the proceedings have been removed, the trial will be either at bar or at nisijprius, 
 by a "jury of the county otit of which the indictment is brought. 1 Chit. Cr. L. 371. And 
 if a fair and impartial trial can not be had in such county, the court. wiH,'upoi a suggestion 
 entered on the record, order it to be tried in the next adjoining one. Id. ib. 3 Burr. 1330. 
 So a special jury may be obtained in the supreme court, and more time for the trial may be 
 thus obtained, or ifmay be brought pn'more expeditiously than in the inferior court. 5 T. 
 R. 626. On the part of the defendant, too, this writ may frequently be advantageous ; as for 
 the purpose of obtaining the .judgment of.the supreme court as to the validity of the pro- 
 ceedings upon a demurrer ; or to' enable the defendant to plead a pardon. 1 Chit. Cr. L. 373. 
 And as an inferior courfean not, in a criminal case, grant a new. trial, upon the merits,, but 
 only for irregularity in the formal proceedings, this advantage may be gained by the removal 
 of the proceedings. Id. ib. 
 
 So if after a verdict'against the defendant, the judge entertain doubts as to the nature of 
 the offence the defendant may be brought up by habeas corpus and -committed, and the in- - 
 dictment removed into the -supreme court by certiorari, for the opinion of the court. Id. ib. 
 But the supreme court has recently decided that it will not hear criminal cases tried at the 
 sessions or oyer and. terminer. upon a case made for the advice of the court; but that such 
 cause must be brought up by certiorari. 15 Wend. 159. 
 
 Where several defendants are jointly indicted, and the indictment-is removed by certio- 
 rari at the suit of a part of the defendants, whereupon the whole cause is retained for trial 
 on the civil side, if the other defendants will not voluntarily come in and be recognized, &c. 
 they may be brought in.on a capias. 1 Cowen, 108. 
 
APPEAL TO THE CRIMINAL APPEAL COURT. 194 — £ 
 
 The judge's of the court oomprise the whole of the fifteen judges of 
 the courts of common law at Westminster, -—the justices of the court of 
 
 If there be an indictment to be removed, and 'the party be in custody, it is usual to have 
 a habeas corpus to remove the prisoner, and a certiorari' to remove the reoord ; for, without 
 the latter, the defendant must continue in the same custody. ' 1 Chit. Or. L. 386. 
 
 The certiorari ought regularly to be directed to- the judges or magistrates of the inferior 
 court before Whom the proceedings were originally taken. Id. 388. 1 Cowen, 103. 9 id. 
 655. ~Bn£, in some cases, it may be directed to the proper officer known to have the actual 
 custody of the record. 1 Chit. Cr. L. 388. The writ may be served by delivering it to the 
 clerk of the court below in vacation, who may return it immediately, though it be directed 
 to the court. -1 Cowen, 103. 
 
 „ The proper mode of making the return seems to be, for the clerk to indorse on the back of 
 the writ, "the execution of this writ appears in a certain schedule hereunto annexed," and 
 then to give a transcript of the indictment, bill of exceptions and the certificate staying judg- 
 ment, on a separate paper, annex the writ and return to the transcript, and transmit them 
 together to the supreme court. See 1 Chit. Cr. L. 393. 
 
 If the return be defective, it may nevertheless, be amended by leave 'of the court. Id. ib. 
 
 See 4 East, 115. If any thing is inserted in~it by way of explanation, or otherwise, which 
 
 was not commanded, it will not vitiate, but may be rejected as surplusage ; (2 Salk. 493 ;) as 
 
 ' where the evidence was returned by a court of oyer and terminer. 1 Cowen, 103. See form 
 
 of certiorari in criminal cases, 9 Cowen, 655, n. (b.) - 
 
 The Revised Statutes of Massachusetts (eh.H'2,) provide: all writs of certiorari, to correct 
 errors in proceedings-that are not according to the course of the common law, shall be issued 
 from and returnable to the supreme judicial court, according to the practice heretofore estab- 
 lished, and subject to such further regulations, as shall be made, from time to time, by the 
 general rules of the supreme judicial court. * 
 
 Upon -every application for a certiorari, and also on the final, adjudication, when a certio- 
 rari is granted, the court may, in their discretion, award costs against -any party who shall 
 _ appear and undertake to maintain or object to the proceeding in question. 
 
 No -such writ of certiorari shall be issued, unless application therefor be made' within six 
 .j'bars next 'after the. proceeding which is complained of, or within six years after this act 
 shall take effect. 
 
 All writs of audita querela, writs of error in civil cases, and petitions for writs of certiorari 
 shall be indorsed in the same manner as is provided' with respect to originial writs, and 
 all the regulations concerning the indorsement'of original writs, contained in the ninetietli 
 chapter, shall apply in like manner to the indorsement of writs and petitions mentioned in 
 this section. Rev. Sts. of Mass. ch. 112. sec. 21-24. 
 
 The proceedings on £n information filed under the Massachusetts Statute, for the purpose 
 of causing a Convict in the state prison to be sentenced to additional punishment, cannot be 
 removed ;by certiorari. Ex varte' Goolce, 15 Pick. Rep. 234. 
 
 On a petition for a writ of certiorari to quash the record of a conviction, the court will not 
 examine the evidence given at the trial, unless it appears. on the record that objections were 
 then taken to Us competency. Stratton v. Com. 10 Met. 211. 
 
 New York.— -In the state of New York, there are, -by the existing practice, two modes 
 of appeal in criminal cases ; first, before judgment" upon a bill of exceptions, and second, 
 upon a judgment. 
 
 The first of these modes of appeal, before judgment upon a bill of exceptions, was un- 
 known to the common law, and was created for the first time by the Revised Statutes. In- 
 deed, before that time, there was no bill of exceptions in a criminal case ; the only mode of 
 correcting an error occuring on the trial, being by the reservation of the question by the 
 court in which the trial was had, for the advice of the supreme court. The Revised Statutes 
 gave the right to-the defendant, to take exceptions to any deoision of the court, in the samo 
 cases and manner provided by law in civil cases ; and provided that a bill thereof should be 
 
 78 
 
194—5 APPEAL TO THE CRIMINAL APPEAL GDTJET. 
 
 Queen's Bench, the justices of the common pleas, and the barons of the 
 exchequer. But by the 3rd section of .the Act " the jurisdiction and 
 
 settled, signed and sealed, and should be filed with the clerk of the court, and returned upon 
 a writ of error after judgment, or upon a certiorari before' judgment. 2 E. S. 3d. ed. 820, 
 sec. 21. 
 
 The bill of exceptions being settled and signed, judgment upon the conviction is stayed, 
 provided the presiding judge or a judge of the supreme court certify on the bill of exceptions, 
 that in his opinion there is probable cause' for the same, or so much doubt as to render it ex- 
 pedient to take the judgment of the supreme c,ourt thereon ; but this certificate cannot be 
 granted by a judge of the supreme court, unless application therefor be first made to the 
 judge who presided at the trial, and his reasons for refusing it to be attached to the bill of 
 exceptions. 2 R. S. 3d. ed. 821, sec. 22-25. 
 
 After making provision for admitting the defendant to bail, (Ibid. sec. 26,) it is further pro- 
 vided that when judgment is thus stayed, the district attorney shall immediately sue out, a 
 writ of certiorari, to remove the indictment, with the bill of exceptions and other proceed- 
 ings thereon, into the supreme court. Ibid. sec. 2T. If the supreme court decide against 
 the exceptions, it is authorized either to render judgment and pronounce sentence, or to re- 
 mit the case for that purpose to the court in which the trial was had. 2 E. S. 3d. ed. 826, 
 sec. 21. If a new trial be ordered, itmust be in the court in which the first trial was had. 
 Ibid. sec. 28. 
 
 The second mode of appeal, now in use, is by writ of error upon a judgment'; upon which, 
 as has been, already seen, the bill of 'exceptions may be brought up -for review. A writ of 
 error may be brought either by the people or by the^lefendant ; except that when brought 
 by the people, it must be founded upon some .matter apparent upon the face, of the judgment 
 record, the people not being entitled to take a bill of exceptions. It is a writ of right in all 
 except capital cases, in which a special allowance is necessary ; but in no case does it operate 
 as a stay of execution, unless a special direction to that effect be inserted in the writ by the 
 officer by whom it is allowed. E. S. 3d. ed., 825, sec. 16 — 18. 
 
 The Eevised Statues of New York (vol. 2, (4th ed., Banks, Gould * Co. 1852,) p. 9-15, et 
 seq.) provide for the removal of indictments before trial or judgment, as follows : — Every per- 
 son against whom an indictment shall be pending in any court of sessions, may apply to any 
 justice oMhe supreme court, for an order to remove such indictment to the court of oyer and 
 terminer of the county in which the same was found. 
 
 Sueh application shall set forth ^ copy of the indictment, or the substance thereof; the 
 time when it was found; the proceedings thereon.lf any ; • and' the facts and circumstances 
 rendering a removal thereof expedient ; and shall be verified by affidavit. 
 
 The officer to whom such application is made,' shall grant an order that sueh indictment 
 be removed to, and that the defendant therein be tried at, the next court of oyer and termi- 
 ner to be held in the county where such indictment, was found, unless it shall appear that 
 the application therefor was- not made in due season, or that such removal will produce any 
 injurious delay, or in any way tend to prevent a due prosecution of such indictment. 
 
 Before granting any such order to any defendant not being in actual confinement, such 
 officer shall take from such defendant, a recognizance, with sufficient sureties, in such penalty 
 as such officer shall direct, conditioned, that the person so indicted, shall appear atthe next 
 court of oyer and terminer to be held in the county where such indictment Was found, and 
 at sueh other time as sueh court shall appoint, and if no plea shall have been made to such • 
 indictment that he will plead to the same ; and tbat he will stand trial on the issue joined, 
 or which shall be -joined thereon, and that he will not depart such -court of oyer and termi- 
 ner without its leave. 
 
 No such order for the removal of an indictment, shall be effectual, in the case of any de- 
 fondant not being in actual confinement, unless a recognizance taken as hereinbefore direct^ 
 ed bo delivered at the same time with such order, and be filed with the clerk of the court ; 
 
APPEAL' TO THE CRIMINAL APPEAL COURT. 194—6 
 
 authorities by this Act given to the said justices of either bench, and 
 barons of the exchequer, shall and may be exercised by the said justi- 
 
 nor unless such order be delivered before any judgment rendered on such indictment, and 
 before any juror shall be sworn to try such indictment. 
 
 No certiorari to remove any indictment from a court of sessions, before trial thereon, to 
 the supreme court, or to any court of oyer and terminer, shall hereafter be allowed. 
 
 No certiorari to remove into the supreme court any indictment pending in a court of oyer 
 and terminer, before trial thereon, shall be effectual, unless allowed by a justice of the 
 supreme court; and no other officer shall have authority to allow such' writ. 
 
 Before allowing any writ of certiorari to remove an indictment from any court of oyer 
 and terminer, the officer to whom application for such . allowance shall be made, shall take 
 from the defendant a recognizance, with sufficient sureties, and in such penalty as such offi- 
 cer shall direct, conditioned, that the defendant prosecuting such certiorari, will appear at 
 the return day thereof, in the supreme court, and plead to such indictment, if issue be not 
 already joined thereon; and will not depart such court without its leave ; and that he will 
 obey the orders and rules of such court, in respect to the trial of such indictment, and the 
 judgment, and all other proceedings thereon. [Whenever any indictment shall be pending 
 in any court of oyer and 'terminer for the crime of treason against the people of this state, or 
 of murder, or of arson in the first degree, and the person indicted is in custody, a writ of] 
 certiorari to remove the same into the supreme court may be allowed by a justice thereof, 
 without taking any recognizance for the. appearance of such person in said court. . 1847, 
 ch. 12.] 
 
 Every indictment so removed, shall be carried down for trial at the proper circuit court, 
 . by the district attorney of the county in which the same was found, in the same manner in 
 all respects, as issues joined- in the supreme court in civil cases, and the same proceedings, 
 so far as they shall be applicable, shall be had thereon. 
 
 Removal of Indictments after Trial and oefore Judgment 
 
 The New York Revised Statutes, provide as follows :— On the trial of any indictment, 
 exceptions to any decision of the court may be made by the defendant, in the same cases 
 and manner provided by law in civil cases ; and a bill thereof must be settled, signed, and 
 sealed, and be filed with the clerk of the court and returned upon a writ of error t or upon a 
 certiorari, and the same proceedings may be had to compel' the signing and sealing of such 
 bilL and the return thereof, -as in civil cases. But no such bfil of exceptions will stay or de- 
 lay the rendering of judgment upon any such indictment, or the execution of any such judg- 
 ment, or of any sentence thereon, except as follows : — Such bill of exceptions being settled 
 aud signed, if the circuit judge who tried the cause, (or if in the general sessions, the presid- 
 ing judge,) or a justice of the supreme court, shall certify on such bill that in his opinion 
 there is probable cause for the same, or so much doubt as to render it expedient to take the 
 judgment of the supreme court thereon, such certificate,- on being filed with the clerk of the 
 court, will stay judgment on the indictment until the decision of the supreme court can be 
 had upon such exceptions. No certificate can be granted by a judge of the supreme court, 
 however, unless application therefor has first been made to the judge who presided at the 
 trial, and his reasons for refusing the same be attached to the bill of exceptions." 2 R. S. 
 T36, §§ 21 to 25. 
 
 Upon such certificate being granted, in 'any case where the offence charged is punishable 
 by imprisonment in a state prison or in a county jail, the court in which the trial was had, 
 or any justice of the supreme court, may let the defendahtto bail, upon a recognizance with 
 sufficient sureties, conditioned that he shall appear in the court where such trial was had, at 
 such time as the supreme court shall direct, and that he will obey any order or judgment 
 the supreme court shall make in the premises. Ibid. sec. 26. 
 
 "When judgment has been stayed- upon any indictment,, as above provided, it is the duty 
 
194 7 APPEAL TO THE CRIMINAL APPEAL COURT. 
 
 ces and barons, or five of them at least, (of whom the Lord Chief Jus- 
 tice of the court of Queen's Bench, the Lord Chief Justice of the court 
 
 of the distriot attorney of the -county immediately to sue out a writ of certiorari, returnable 
 in the supreme court, to remove such indictment, with the bill of exceptions and other pro- 
 ceedings thereon, into such court ; and the clerk of the court must without delay make a 
 return thereto, containing a transcript of the indictment, bill or exceptions, and the certifi- 
 cate staying judgment 
 
 The district attorney' of the county must bring on for argument, as soon as practicable, 
 the return to any certiorari so issued by liim in cases where judgment on an indictment is 
 stayed. It is also competent for the defendant to notice and bring on ft«vargument such re- 
 turn. Id. Til, sec. 21. 
 
 If an attorney has appeared for the defendant, in any indictment so. removed, by giving 
 notice of his appearance to the district attorney, within ten-days after filing the certificate 
 staving proceeding, notice pf argument thereon may be served on such attorney, by the dis- 
 trict attorney, as in other cases. If no attorney has so appeared, such notice must be served 
 personally on the defendant if he is in custody ; and if he is not in custody it may be served 
 by affixing the same itf the office of a clerk of the supreme court. 
 
 No assignment of errors or. joinder in error is necessary upon any certiorari so issued; 
 but the court is to proceed on the return thereto and render judgment upon the record be- 
 fore them. 
 
 If the supreme court decides against the exceptions taken, it must either proceed to ren- 
 der judgment and pronounce sentence against the defendant, or remit the proceedings to the 
 court in which the trial was had, with directions to proceed and render judgment. 
 
 If a new trial be ordered by the supreme court, as above provided, the same is to be had 
 in the court in which the indictment was first tried. 
 
 If the defendant has been let to bail, after the staying of any judgment as above provided, 
 and neglects to appear at any new trial that may have beeh ordered, or to appear and re- 
 ceive judgment, the court authorized to render such judgment, or in which, such new trial 
 was directed, rnay cause such defendant to be arrested, in the same manner as upon the 
 finding of an indictment, and may forfeit his recognizance and direct the same to be prose- 
 cuted. 
 
 "Whenever any indictment is removed into the supreme court, or any person indicted is 
 brought into that court by habeas corpus, the justices thereof may remand such person and 
 such indictment to the proper county, where such indictment, may be tried; and the court 
 of oyer and terminer or the court of sessions to which any"indictment is so remanded must 
 proceed thereon in the same manner as if such indictment had not been removed into the 
 supreme court. 2 R. S. 471, §'§ 22 to 28 ; 1 Cowen, 133. 
 
 A writ of certiorari to remove into the supreme court a conviction had before a court of 
 special sessions, may be allowed on the application of the party convicted, by any justice of 
 the supreme court, or by any officer authorized to perform the duties of such justice in 
 vacation. 
 
 The party desiring such certiorari, or some one in his behalf, shall apply for the same 
 within ten days after such conviction shall have been had, and shall make an affidavit speci- 
 fying the supposed errors in the proceedings or judgment complained of. 
 
 If the officerto whom application for such certiorari phall be made shall be satisfied that 
 any error has been committed in the proceedings or the judgment, he shall indorse upon the 
 writ his allowance thereof, and shall certify the affidavit upon which the certiorari was 
 allowed. But when the defendant shall have been tried by a jury, no certiorari shall be 
 allowed upon the ground that the verdict of such jury was against evidence. See 5 "Wend. 
 530; 12 id. 34T. 
 
 The said writ and original affidavit shall be delivered to the magistrates, or one of them, 
 before whom the conviction was had, within ten days after such allowance. 
 
 The magistrates to whom the certiorari shall be delivered, shall make a special return to - 
 
APPEAL TO THE CRIMINAL APPEAL COURT. 194—8 
 
 of common pleas, and the Lord Chief Baron of the court of. exchequer, 
 or one of such chiefs at least, shall be part,) being met in the exchequer 
 chamber or other convenient place."(a) 
 
 (a) 11 & 12 Yict. c. 78, a. 3. . • 
 
 all the matters specified in the affidavit accompanying the writ, and shall cause such writ, 
 affidavit and return 'to be filed in the office of one 6f the clerks of the supreme court, within 
 twenty days after the service of the said writ 
 
 The supreme court shall have the like power to compel the making of such return, and to 
 require the same to be amended and perfected, as in cases of mandamus. 
 
 A certified copy of every such certiorari, affidavit and return shall be served by the party 
 prosecuting the writ, upon the attorney general, with at least four days' notice of the argu- 
 ment thereof. 
 
 It shall not be necessary for the party convicted to appear in the supreme court upon the 
 prosecution, of such certiorari ; nor shall any assignment of errors or joinder in error be ne- 
 cessary ; but the supreme court shall proceed to hear the parties, and give judgment on the 
 return to such writ,. 
 
 If, at the time of his' conviction, any defendant shall notify the magistrates before whom 
 the same shall have been had, that he intends to remove such conviction by writ of certio- 
 rari, and shall offer to become bound in a recognizance, with satisfactory sureties, to appear 
 at the next sessions of the peace to be held in the same county, and to abide the judgment 
 or order of that court in the premises, it shall be the duty of such magistrates to take such 
 recognizance, and thereupon to suspend the execution of any sentence upon such conviction. 
 But such sentence shall be pronounced arid entered in the minutes of the proceedings. 
 
 If the party convicted shall have been committed to prison in pursuance of his sentence, 
 upon becoming bound with a condition as provided in the last section, with such sureties as 
 shall be approved by the officer allowing the writ of certiorari, he shall be entitled to be 
 discharged from such imprisonment ; and the certificate of such officer stating the fact, and 
 ordering the jailer to discharge such prisoner, shall be a sufficient warrant for his discharge. 
 
 The magistrates or officer, by whom any recognizance under either of the two last sec- 
 tions shall be taken, shall immediately cause the same to be filed with the clerk of the 
 county. , 
 
 The court of sessions, in which the party so convicted and recognized, shall be bound to 
 appear, has power to continue such recognizance, or to- require a new recognizance with 
 further or other sureties; until the decision of the supreme court shall be had in the premi- 
 ses ; and in default of compliance with any such requisition, the said court of sessions may 
 commit the party so convicted to close custody. . 2 E. S. pt. 4, ch. 2, tit. 3, art. 4. 
 
 The supreme court, it seems, is restricted from reversing the conviction on the ground 
 that the verdict is against the weight of evidence. But it may examine any other errors in 
 the proceedings and judgment, which appear on the face of the return. Pulling v. The Peo-. 
 pie, 8 Barb. 384. If the conviction be reversed, and the defendant be in prison by virtue 
 thereof, the supreme court shall award a writ -of supersedeas for his discharge. If the de- 
 fendant shall have been let. to bail, as above provided, the judgment of the supreme court, 
 whether, the conviction be reversed or affirmed, shall be remitted to the court of sessions of 
 the proper county,. to be by that court carried into effect. 2 R. S. 719, § 54. 
 
 Upon such judgment being received, the court of sessions, if the conviction be reversed, 
 shall discharge the defendant; if the conviction be affirmed and the defendant shall have 
 been sentenced by the court of special sessions, such court of sessions shall order that such 
 sentence be executed ; and if the defendant shall have been let out of prison as herein pro- 
 vided, he shall be remanded to such prison for the remainder of. the term for which he was 
 
 .If the conviction be affirmed, and the defendant shall- not have been sentenced, the court 
 of sessions shall proceed to sentence the defendant .upon such conviction, in the same 
 
194 — 9 APPEAL TO THE CRIMINAL APPEAL COURT. 
 
 manner and with the like effect as if such conviction had been had in such, court of ses- 
 sions. 
 
 If it shall appear to the supreme court that the person prosecuting such certiorari has un- 
 reasonbly delayed to notice or bring on for argument the return to such writ, such court may 
 enter a rule to quash the certiorari; and upon the same being certified to the'eourt of ses- 
 sions in which the person prosecuting such writ shall be'bound to appear, such court shall 
 proceed thereon, in the same manner as if the judgment of the court of special sessions had 
 been affirmed by the supreme court. Ibid. §§ 55, 56, 57. 
 
 A court of special sessions before whom a conviction is had, may proceed and cause their 
 judgment to be executed, notwithstanding notice of an intention to remove the conviction, 
 and the entering into a recognizance by the defendant, if a certiorari is not actually sued 
 out. 5 "Wend. 110. 
 
 The proceedings of a court of special sessions will not be reversed; on certiorari, for the 
 errors of the magistrate before whom the complaint was made. Id. 530. 
 
 On certiorari the supreme court cannot pass upon the question whether the finding by the 
 jury before a court of -special sessions was against or without evidence; and therefore, 
 though the facts of the case be. returned, they will not look into them to see whether or not 
 the jury erred. Id. ib; 12 id. 347. 
 
 Any person tried and sentenced by a court of special sessions in New Tork, without hav- 
 ing demanded such trial, may appeal to the court of general sessions. But such appeal must 
 be made at the time sentence is pronounced ; and thereupon such conviction will be void. 
 The court must enter such appeal in its minutes ; and proceed in the same manner as if no 
 such trial had been had, to take a recognizance from the accused, with sufficient surety, 
 to appear at the general sessions. Or in default of his giving such recognizance, the court 
 must commit him to prison; (See form of commitment, -Barb. Or. Law, Append,) and take 
 the same measures to insure the attendance of the witnesses in behalf of the prosecution,, at 
 such court of general sessions, as in other cases ; that is, by requiring them to enter into re- 
 cognizances. 
 
 The court of general sessions is to proceed, in every such case, by indictment and other 
 proceedings, in the same manner as if no such trial or conviction had been had before' the 
 special sessions. 
 
 Maine. — Any person, convicted of an- offence in the district court, may allege excep- 
 tion's to any opinion, direction or judgment of the said court, and thereupon such proceed- 
 ings shall be had in said court, and also in the supreme judicial court, as are prescribed in 
 the nineteenth section, of the ninety-seventh chapter, establishing the said district court. 
 
 In criminal trials in the supreme judicial court, any person convicted of any offence tried 
 before any one justice of said court, may, in the manner mentioned in the preceding section, 
 allege exceptions to any opinion,' direction or judgment of such justice, to be allowed and 
 signed by him ; or any questions 'of law, which may be so reserved on exceptions, as above 
 stated, may be reserved on a report- signed by such justice, who may require such defendant 
 to recognize with .sufficient sureties to appear at the next term of said court, and abide the 
 judgment which the full court shall render in the cause ; or commit, him, on his neglecting 
 so to recognize. Rev. Stat, of Maine, p. 121, sees. 40, 41. 
 
 Any person, aggrieved at the sentence of any justice of the peace, or judge of a munici- 
 pal or police court, may appeal therefrom to the next district court, to be holden in the same 
 county ; and the justice or judge shall grant the appeal, and order him to recognize in a rea- 
 sonable sum, not less than twenty dollars, with, sufficient sureties for his appearance, and 
 for prosecuting his appeal ; and he shall stand committed till the, order is complied with. 
 
 He shall be held to produce a copy of the whole process, and of all writings filed before 
 the justice, at the district court. - Rev. Stat, of Maino, pp. 710,' 711, sees. 8, 9. 
 
 All writs of certiorari, to correct errors in proceedings, that are not according to the 
 course of the common law, shall bo issued from the supreme judicial court, according to the 
 practice heretofore established, and subject to such further regulations, as shall be made from 
 time [to time] by the supreme judicial court. 
 
 Upon every application for a certiorari, and also on the final adjudication, when a certio- 
 
APPEAL TO THE CRIMINAL APPEAL COURT. 194 — 10 
 
 rari is granted, the court may, in their discretion, award, costs against any party who shall 
 appear and undertake to maintain or object to the proceeding in question. 
 
 .No such application fpr a writ of certiorari shall be sustained, unless made therefor with- 
 in six years next after the proceeding which is so complained of, or within six years after 
 this chapter shall take effect ; provided, that the saving clause in the tenth section of this 
 chapter shall apply to this section also. Rev. Stat, of Maine, pp. 606, 607 ; sees. 11, 12. 
 13. ■ 
 
 Mississippi; — Bill of Exceptions in Civil or Criminal Case. — If in the trial- of any cause in 
 any circuit court, either the plaintiff or defendant shall think himself or herself aggrieved 
 by the charge, direction, or decision of the judge, the party so considering himself or her- 
 self aggrieved, may in person; or by his or her counsel, tender to the judge giving sucn 
 charge, direction, or decision, a bill of exceptions to his opinion, stating therein the matters 
 of law wherein he is supposed to err, and the judge shall be bound to sign and seal the same, 
 and the bill of exceptions so signed and sealed, shall be made and considered a part of the 
 record in the cause ; and in case the judge shall refuse to sign and seal a bill of exceptions, 
 so tendered, if the facts therein be duly stated, he shall be deemed guilty of a high misde- 
 meanor in office. 
 
 In the prosecution of any person or persons for any crime or misdemeanor, in any court 
 of law of this state, it shall be the duty of the judge or justices, before whom such prose- 
 cution is pending, to sign and seal any bill of exceptions tendered to the court, during the 
 progress thereof: Provided, The truth of the case be fairly stated in such bill of exceptions. 
 And thereupon, the said exceptions shall, by the clerk of the said dourt, be entered in the 
 record of such prosecution, and become, to all intents and purposes, a part thereof. Hutch* 
 inson's Mississippi Code, p. 880, sees. 145, 146. 
 
 It shall and may be lawful for'all persons who feel themselves aggrieved by.the judgment 
 of the board of police of any county, to appeal by bills of exception or certiorari to the cir- 
 cuit court of his county; which appeal shall be taken during the term of the board at which 
 judgment is entered, or at the next succeeding regular term thereof, and not after. 
 
 In cases when appeals are prosecuted in the circuit courts, the president of the board of 
 police shall defend the same ; and all expenses of money paid by him, shall be repaid by the 
 proper county, by order of said- board of police. Hutchinson's Mississippi Code, p. 712, 
 sees. 45, 46. 
 
 Michigan. — Any person who shall be convicted of any offence before any court of record, 
 considering himself aggrieved by any opinion, direction or judgment of the court, in any 
 matter of law, may allege exceptions to such opinion, direction or judgment, which excep- 
 tions being reduced to writing in a summary mode, and presented to the judge before the 
 end of the term, and found conformable to the truth of the case, shall be allowed and signed 
 by the judge. 
 
 Upon the signing of such' exceptions, all further proceedings in that court shall "be stayed, 
 unless it shall clearly appear to the judge, that such exceptions are frivolous, immaterial, or 
 intended only for delay, and in that case, judgment may be entered,, and sentence awarded 
 in such manner as the court shall deem reasonable, notwithstanding the allowance of such 
 exceptions. 
 
 If upon the" trial upon indictment of. any person who shall be convicted in any court of 
 record, any question of law shall arise, which, in the opinion' of the judge, shall be so im- 
 portant or doubtful, as to require the opinion of the supreme court, he may, if the defendant 
 desires it or consents 'thereto, report the case so faf as may be necessary to present the ques- 
 tion of law arising thereon, and transmit the same with all convenient speed to - the chief 
 justice, or one of the associate justices of the supreme court, and thereupon all further pro- 
 ceedings in such court shall be stayed. 
 
 Any person who shall file exceptions, or forwhose benefit a report shall be mado by the 
 judges, as is provided in the preceding sections, may, if the offence be bailable, recognize to 
 the people of this state, in such sum as the court shall order, with sufficient sureties for his 
 appearance at the next term of such court, and to prosecute his exceptions to effect in the 
 supreme court; if exceptions are alleged as aforesaid, and to abide the further judgment or 
 
194^-11 APPEAL TO THE CRIMINAL APPEAL COURT. 
 
 order of the court in the premises, in which such trial was had, and 'in the mean time to 
 keep the peace and be of good behavior. , 
 
 If such person shall not so recognize, he shall be committed to prison, to await the deci- 
 sion of the supreme court; and in that ease the clerk of the court in which the conviction 
 was had, shall file a certified. copy of the record' and proceedings in the case, in the supreme 
 court; and such court shall have jurisdiction to hear and determine the questions of law 
 arising on such exceptions or report; and shall certify their determination to the court in 
 which the trial was had, together with directions as to a new trial, or such other proceedings 
 as right and justice shall require; but the proceedings herein prescribed, shall not deprive 
 any party of his writ of error, for any error or defect appearing of record. 
 
 The court in which the party so convicted and recognized shall be. bound to appear as 
 aforesaid, shall have power to continue sucfli recognizance, or require a new recognizance,, 
 with further or other sureties" until the decision of the supreme court shall be had in the 
 premises, and- in default of compliance with any such requisition, such court may commit the 
 party so convicted to close custody. Eev. Sts. of Michigan, -pp. 103, ^03, sees. 2 to 1, in- 
 clusive. 
 
 A person convicted of an offence by a justice of the peace may appeal from the judgment 
 of such justice of the peace to the circuit court ; provided said person shall enter into a re- 
 cognizance with one or more sufficient sureties conditioned to appear before said court and 
 abide the judgment of the court therein: And the justice from whose judgment an appeal 
 is taken, shall make a special return of the proceedings had before said justice ;~and shall 
 cause the warrant and return, together with the recognizance or recognizances to be filed in 
 said circuit court on or before the first day of the circuit court next to be holden for said 
 county, and the complainant and witnesses may also be required to enter into recognizances 
 with or without sureties, in the discretion of the court, to appear at said circuit court at the 
 time last aforesaid, and to abide the order of the court therein. Ibid. 419. 
 
 Vermont. — Every question of law, decided by the cdunty court, arising on demurrer, or 
 upon a trial by jury, in a prosecution by indictment or information for any crime or misde- 
 meanor, may, after verdict of guilty is returned, be allowed and placed upon the record, if 
 the court, upon consideration of the difficulty and importance of such question, shall so di- 
 rect, and.not otherwise ; and the same shall thereupon pass to the supreme court for a final . 
 decision, and judgment, ^sentence and execution shall be thereupon respited and stayed. 
 
 Exceptions to the' decision of the county court;, upon any motion in arrest of judgment 
 made in a prosecution by indictment or information, may be allowed and placed upon the 
 record, if such court, upon'consideratipn of the difficulty and- importance of the question, 
 shall so direct, and not otherwise ; and the same shall thereupon pass to the supreme court 
 for a final decision ; and judgment, sentence and execution shall thereupon be respited and 
 
 If* on inspection of the record in any cause, the supreme court shall be of opinion that 
 judgment ought to be rendered upon the verdict, such court shall proceed to render judg- 
 ment and sentence thereon, according to law, and cause execution thereof to be done ; oth- 
 erwise the cause shall be removed to the county court for trial, or judgment of acquittal shall 
 be rendered by the supreme court, aslaw and justice may require. 
 
 No writ of error shall be allowed in a criminal cause, prosecuted by indictment or infor- 
 mation. Rev. Sts. of Vermont, pp. 228, 229, sees. 72 to 15, inclusive. 
 
 The supreme court shall have exclusive jurisdiction of all such potitions, not triable by 
 jury, as may by law be brought before such court, and shall have power to issue anddetep- 
 mine all writs pf error, certiorari, mandamus, prohibition and quo warranto, and all other 
 writs and processes to courts of inferior jurisdiction, to corporations and individuals, that 
 shall be nocessary to the furtherance of justice and the regular execution of the laws, and 
 sliall have power to try and determine all such questions of law as shall be removed from 
 the county court, agreeably to the provisions of this chapter. Rev. Sts. of Vermont, pp. 219, 
 220, sec. 5. 
 
 Viroinia. — A party, in a criminal case or proceeding for contempt, for whom a writ of er- 
 ror lies to a higher court, may except to an opinion of the court and tender a bill ef excep- 
 
APPEAL" TO THE CRIMINAL APPEAL 'COURT. 194—12 
 
 tions, which, (if the trath of the. case be fairly .stated therein,) the judge, judges or justices, 
 or the. greatefpart of those present, shall sign; and it shall be a part of the record of .the 
 case. * This section shall not be construed to authorize a bill, of exceptions -to' an. opinion of 
 an examing' court.' Rev-. Code Of Ya., p. IV?, sec.' 1/ 
 
 An ■appeal may be taken, in- Virginia; from the judgment of a conservator .of the peace, 
 to ihe court of the county or corporation. Rev. Code of Va., of 1849, tit. 55, oh. 201. 
 ■ In the case of a negro convicted, of a misdemeanor, by a justice, there may be an appeal 
 from the decision to the county or corporation- court, by ther:negro, or if he be a slave,- by" 
 his. Owner. Suoh negro shall, unless letto bail, be.committed by the justice. Jo jail until the 
 next-term of such court, ^and the witnesses-shall also be recognized to appear then. 
 
 Every such appeal -shall be. tried without pleading's in. wjitinjr,,and withouta continuance, 
 except for .good Gause; the court shall hear all the evidence produced on- either side, and - 
 give such judgment as seems to it proper, and enforce the execution thereof. Kev.Code of 
 Va., .p." l 788, sees. '15. 16. - 
 
 Wisconsin. — Every person convicted before a justice of the 'peace of any offence, may 
 appeal from, the senteflce' to the circuit court then next to" be held in the. same county, and 
 such appellant shall.be committed to abide the sentence, of said justice until he' shall recog- 
 nize to the state, of "Wisconsin in such reasonable sum with such sureties as.said justice shall 
 require, with condition to appear at the court appealed to,;ahd. there to prosecute his appeal 
 and to abide the sentence of the court thereon, and in the mean time tp keep the peace and 
 be of good behavior. 
 
 The justice, on such appeal, shall make a copy Of "the conviction and other proceedings' in 
 the case, and transmit the same, together with the recognizance, if any shall'be taken, to the 
 clerk of the court appealed to; and'the fees of the justice therefor shall bet- paid; from .the 
 county treasury in like manner, as o'ther costs, in criminal prosecutions are paid. 
 
 The appellant shall not be required to advance any fees.in claiming his appeal, nor in pros- 
 ecuting the same; but if convicted in the circuit court, or .if sentenced for failing to prose- 
 cute his appeal, he may be required, as.part of his sentence, to gay thewhole or any part of 
 the costs of prosecution. . , /_ >. 
 
 If the appellant shall fail to enter and-prpsecute his appeal, he .shall be defaulted on his 
 recognizance,- if any was -taken, and- the circuit, court may award sentence -against, him for 
 the offence whereof he was convicted, in like manner as if he had been convicted thereof in 
 that court. And if he is. not then in custody, process may .be issued" to .bring him into court' 
 to receive sentence. 
 
 "Whenever, upon suit brought upon any recognizance to prosecute an appeal, the penalty 
 thereof shall be adjudged. to be forfeited, or when by leave of the court such penalty shall 
 have been paid to the county treasurer or. to the clerk of the court, without .a suit or before 
 judgment shall'be given in manner by law provided,' if by law any forfeiture shall accrue to 
 any person by ^reason "of the offence of which the appellant was convicted, the court may 
 award to him such sum as he may be entitled to out of such forfeiture. . 
 
 The circuit court may, at the term in which, the trial o.f any indictment shall be had, or 
 within one year thereafter, or the supreme court within one year thereafter, on the petition 
 or motion in -writing of the defendant, grant an&W trial for any cause for which by law a 
 new trial may be granted, or when it shall appear to the court that justice 'has not been 
 done, and on-such terms or conditions as the court may direct. 
 
 Any person who shall be convicted of aft offence before the circuit court, being aggrieved 
 by any opinion, direction Pr judgment of the court-in any matter of law, may allege excep- 
 tions to such opinion, direction or ■judgment, which exceptions being reduced to writing in 
 a summary .mode; and presented to the court any time before the end of the term, and found " 
 conformable to. the truth pf the case, shall be.allowed and sighed by the judge, and there- 
 upon all further proceedings in that court shall be stayed, unless it shall clearly, appear to 
 the judge that such exceptions are frivolous^ immaterial or intended only for delay ; and in 
 -that case judgment may be entered and sentence -awarded in such manner as the judge may 
 deem reasonable,' notwithstanding the allowance of such exceptions: 
 
 If upon the trial of any person who shall be convicted in said circuit court, any question 
 
 ^9 
 
194 — 13 APPEAL'TO THE CRIMINAL APPEAL COURT. 
 
 of law shall arise, which in the opinion of the judge shall be so important or so doubtful as 
 to require the decision of the supreme court, he-shall, if the defendant desire- it or consent 
 thereto, report the case sofar as'may^be necessary to present the question of law arising 
 therein, and thereupon all proceeding in that court' shall be stayed. 
 
 Any person not being accused with au offence punishable . with -death, who .shall file ex- 
 ceptions, or for whose benefit, a report shall be-nade try the judge, as is provided ih.the two 
 preceding sections, may recognize to the ptate of Wisconsin in such. sum as the judge shall 
 order, with sufficient sureties, for his personal appearance at the supreme court at the then- 
 next term thereof, and to enter and prosecute his exceptions with effect, apd abide the sen- 
 tence thereon, and in the'mean time keep 'the peace and be of good behavior.. 
 
 If any person, so filing exceptions, or desiring a report to be' made by. the judge, shall not 
 so recognize, he shall be committed to pTison to await the decision!" of the supreme court'; 
 and in that case, the clerk of the court, :in which the conviction was had, shall' file a certified 
 copy of the record'and proceedings in the case in the supreme court, and the court shall 
 have recognizance thereof and consider and decide tjie questions of law,, and "snail render 
 such judgment, and award such sentence, or 'make' -sucTi order. thereon as law and justice 
 shall require ; and if a new trial is ordered, the cause shall be remanded.to said circuit court 
 for such new trial, but the proceedings here prescribed shall not deprive any party of his 
 writ of error for any error or defect appearing of Record. Rev. Sts." of "Wis., pp. 128, "12,9, 
 sees. 1 to 10, inclusive. - ■ • - 
 
 Iowa. — On the trial of an indictment exceptions may be taken by the; defendant or pros- 
 ecuting attorney to- a decision of the court upon matters of law in any of the following 
 oases: ■ - 
 
 Ptrst — In disallowing a challenge to the panel of the jury, or to an individual juror for 
 a general disqualification pr for actual or implied bias. \ 
 
 Second — In admitting or rejecting witnesses .or testimony, or in deciding any question -of 
 law not a matter of -discretion,-, or in charging or. instructing the: jury upon thejaw on .the 
 trial of the issue. ■ •.'■'• v 
 
 A bill of exceptions must be settled and signed by the jifttge Who tried the cause and 
 filed with the clerk. -- ' ■'..-■ 
 
 The bill of exceptions must be settled at the trial unless the court ptherw'ise^direct. If 
 no such direction be given the point of exceptions must be particularly, stated iff writing and 
 delivered to the court and shall immediately- be cqrreoted or added to until-it is made con- 
 formable to the truth. 
 
 The bill of exceptions must contain so much of the evidence only as is necessary to pre- 
 sent the question of law upon which the. exceptions were taken. Code of Iowa, ppr 420, 
 421, ch. 179, sees. 3046 to 3049, inclusive. ' 
 
 Tennessee-.— All such criminal matters as can be brought by, certiorari into the court of 
 King's bench in England,. from inferior jurisdictions, .may, by-that-process,'be brought into 
 the circuit court of Tennessee, except .such cases'as are prohibited. b.y .statute.- Bob v. State, 
 2 Terger, 113.. A criminal case may be removed from a justice of the. peace into the circuit 
 court, by certiorari. Kendrick v. State, Cooke, 414. . > 
 
 Maryland.— In Maryland, the attorney-general may direct a. writ of certiorari to the 
 county court to remove a prosecution for murder. State, v. Judges, &c, 3 Har. & M'Hen. 
 
 115. . < " '. . . -' 
 
 North Carolina.— In North Carolina, habeas corpus, and certiorari, were issued to re- 
 move the prisoner and the record of her conviction and sentence by the oounty court, in the 
 case of a slave convicted and sentenced to be executed for an offenoe not capital ; and the 
 sentence was reversed, andthe prisoner remanded to the county court "to receive such judg- 
 ment as the laws and constitution of the state will warrant." State v Sue, Camerori 4 Nor- 
 wood, 54. Refusal of an appeal when the prisoner is entitled to it and prays for it, is cause 
 for bringing up the case by certiorari. State v. Washington, 2 Murph. 100.' 
 
 Georgia. The writ of certiorari lies to remove the proceedings of three justices in Geor- 
 gia, in the trial of a party accused of invoighling a negro. Ko parte George, Charlt. Rep. 80. 
 Alabama. In Alabama, the supreme oourt, will not, under the statute of 1820, issue a 
 
APPEAL IN "WHAT CASES:- 1&4— 14T 
 
 (6) Appeal in what cases. , 
 
 By stat. 11 & 12 Vict. c. 78, s. 1, " when any person shall have been 
 convicted of any treason, felony, or, misdemeanor, before any court of 
 oyer and. terminer or jail delivery, or court of- quarter sessions, the 
 judge or commissioner or justices of the peace before whom the case 
 shall have been tried,, may, in his. or their discretion,' reserve any ques- 
 tion of law, which shall- have arisen, on the, trial,- for the con- 
 sideration *-of the. justices of .either -bench and barons of 'the [*195] 
 exchequer; — and thereupon shall have authority to ^respite 
 execution of the judgment on such conviction or postpone the judgment 
 until such question shall have been considered and decided, as he or 
 they may think fit; — and in either cas& the court, inits discretion,' shall 
 commit the- person convicted to prison,- or shall take! a recognizance of 
 bail, with one or two sufficient sureties, and in such sum. as the court 
 shall think fit, conditioned to appear at such tirne or times as- the court 
 shall direct, and receive judgment, or to render himself in execution } 
 as the case may be<" Although justices of the peace are' alone men- 
 tioned herewith referenpe- to a court of quarter sessions, yet it has 
 been holden that a recorder &i a borough sessions may reserve a ques 
 tion for the opinion of the judges of this appeal court.(a). 
 
 Under this sectifin, the judge, jnstices, or recorder may reserve " any 
 question of law, which. shall have arisen upon the trial ;" even a ques- 
 
 (a) R v. Masters, 2 Car. & K. 930. 
 
 certiorari' to bring up parts of the record which do not relate to the questions'of law re- 
 served for their opinion. And the defendant ought not' to assign errors in the recordi State 
 v. Shelton, 3 Stew. 343. It is always 'correct to insert a special clause in a writ' of certiorari 
 to a criminal court directing' it to operate as a 'mtpersedeas, and if necessary, to also direct a 
 special writ of supersedeas to me sheriff to delay execution until the case is heard and de- 
 termined. John v. The State, 1 Ala. ^Rep..!^. 
 
 OmO. — In Ohio, a certiorari will not lie in a. criminal case. Winn ,v. The -'State, 10 Ohio; 
 345. ' 
 
 New JERSEY.V-Afcertiorari in a criminal case, may be allowed by a single judge at cham- 
 bers. State v. Morris Oanal, &c, 1 Green, 192. Anon. 4 Btaslt. 2. Indictments found at 
 oyer and terminer, may be brought by certiorari before ' the supreme court sitting in bank. 
 State v. Gibbons, 1 South. 40; Nichols v. State, 2 South. 539. The return to the writ must 
 be signed by the. justice of the supreme court who held the session of oyer and terminer, 
 and must contain the record of the whole proceedings against the defendant and not merely 
 the original indictment and papers. Stater. Gibbons, 1 South. 40. When the judgment or 
 order of'the. 'court is' made in such. a ease the indictment sent up' with the writ will be 
 returned to the files of the court of flyer and terminer. State v. Dayton, 1 South. 57. The 
 record is not sent up with the writ, but a transcript only. Nicholls v. State, 2 South. 542. 
 See form of record to be. returned With the writ. State v. Gustin, 2 South. 746. 
 
 Pennsylvania.— In Pennsylvania, the defendant must show cause before he can obtain a 
 certiorari Pennsylvania v. Kirlvpatrick, Addis. 191. But when a removal of a criminal case 
 is necessary for the due administration of justice, an allowance of the writ, by one of the 
 judges of the supreme court, is grantable to the defendant of right. Com. v.M'Ginnis, 2 
 Whart. 117. . 
 
195 APPEAL TO THE CRIMINAL APPEAL COURT. 
 
 tion upon the form of the indictment.(a) So, a question which at the 
 trial was made the. subject of -a motion in arrest, of -judgment, may be 
 reserved.(6) But; the court, under this.Aot, have no authority to re- 
 view the judgment given by 'any judge, justices,, or recorder upon de- 
 murrer ;(c) indeed it is now declared, by a rule of this court, "that no 
 case be heard upon any demurrer to the pleadings."^) 
 
 (c)' Case. * . 
 
 In order to obtain the opinion 'of the court of appeal " thejudge or 
 commissioner or court of quarter .sessions shall .state, in a case signed in 
 the manner now usual, the question or questions of law which shall have 
 been so reserved, with the special circumstances- upon which ,the same' 
 shall have arisen ; and such case shall be. transmitted to^.the said justi- 
 ces and barons."(e) , , 
 • The case must briefly state the question or questions of law reserved, 
 and such facts only as raise the question or questions submitted; if the 
 question turn upon the indictment, or upon any count" thereof, then 
 the case must set forth the indictment, or the particular count. It must 
 state, also, whether judgment on the conviction was passed or postponed, 
 or the. execution of the judgment. r.espited,'_ and whether the person' con- 
 victed be in prison or has been discharged on recognizance of bail to 
 appear and receive judgment, or -to render himself, in execution.^) _ 
 
 The original case, signed by thejudge, or commissioner,: or chairman 
 of sessions, and seventeen copies of the same, one for each judge, and 
 . one for each party, shall' be delivered to "the .clerk of the 
 [*196] court at the. exchequer chamber,- "Westminster, *at least four 
 days before the day appointed for the sitting of the, court ; and 
 the fee thereon, payable to the' clerks of the said judges, shall not ex- 
 ceed the fee payable on demurrer or other' paper books [2s.] as contain- 
 ed in the table, of fees, alio wed and sanctioned by the judges, pursuant 
 to stat 1 Vict. c. 30.(A) 
 
 Also, when any case intended \q be argued by counsel or by the 
 parties, notice thereof must be given to the clerk of the court, at least 
 two days previously to the sitting of the court.(i) 
 
 (d) Bearing and judgment. > 
 
 Upon the case being thus transmitted," the said justices and barons 
 shall have full power and authority to hear and finally determine the 
 
 (a) Videinfra; and' see R. v. Webb, 2 Car. (e) 11 & 12 Viet. e. i», s. 2. 
 
 & K. 933; R. v. Martin, Id. 950. (?) ^le Tr. T. 13 Viet. 1,9 Law J. zv. 
 
 (b) R. v. Martin, 2 Oar. & K. 950. (Ji) Id. 
 
 (c) R. v. Fadermam et al, 19 Law J. H7 m. (») Id. 
 
 (d) Rule Tr. T. 13 Vict. 19 Law J. it. 
 
SUBSEQUENT PROCEEDINGS. 196 
 
 said question or questions,— and thereupon to reverse,, affirm, or amend 
 any judgment which .shall have been given on the indictment, or in- 
 quisition on the trial- whereof such question or questions have arisen, — 
 or to avoid such judgment, and to order an entry to be made on the 
 record; that in .the judgment of the Said justices and barons"the party 
 convicted ought not to have been convicted,^or to arrest the judgment, 
 — or order judgment to be given thereon at. some other session of oyer 
 and terminer tor jail delivery, or other sessions of the peace, if no- judg- 
 ment shall have been before that -time given, as 'they, shall- be advised,. — 
 or to make such other order as justice may require.(a) 
 
 If the case be argued by counsel, they must confine themselves to 
 - the case as stated, .and argue it upon the - facts- therein mentioned. (b) 
 And if the judge, chairman, or recorder who reserved the case, shall 
 have omitted any matter which may be deemed material, the . counsel, 
 before the case conies on for argument, should apply to him to insert 
 it.(c) 
 
 Also, the -judges -shall have the. power, if they think fit, to pause the 
 case to be sent back for amendment ; and thereupon the same shall be 
 amended accordingly, and judgment shall be delivered after it shall 
 have' been amended'.(c?) " 
 
 The "judgment or judgments of the said' justices and barons shall 
 be delivered in open court, after hearing counsel or the parties, in case 
 the" prosecutor ■ or the person convicted shall think it fit that the case 
 shall be argued,- in like manner as the judgments of the superior courts 
 of common law at , Westminster are now delivered."(e) •-/* 
 
 (e) Subsequent proceedings. 
 
 ■ " Such judgment and order, if any, of the said justices and barons, 
 shall be certified under the hand of the presiding chief justice 
 or chief baron, to the *clerk of assize or, his deputy, or to the [*197] 
 clerk' of the peace or his deputy, as the case may" be, who 
 shall enter the same on the original record in proper form ; and a certi- 
 ficate of such entry, under the hand of the. clerk of assize or his depu- 
 ty, or the clerk of the peace or his deputy, as. the case may be, in the 
 -form, as near as may be or to the effect mentioned in the schedule an- 
 nexed to this Act, with the necessary alterations to adapt it to the cir- 
 cumstances of the case, shall be delivered or transmitted by him to the 
 sheriff or jailer in whose custody the person convicted shall be; and 
 the said certificate shall be a sufficient warrant to such sheriff or jailer, 
 and all other persons, for the execution of the judgment, as^the same 
 
 (a) 11 & 12 Vict. c. 18, s. 2. (d) 11 & 12 Vict. c. 18, s. 4. 
 
 (6) R. v. Smith, 2 Oar. & K. 882. (e) Id. s. 3. 
 
 ( C )Id. 
 
197 APPEAL TO IFBiE CRIMINAL APPEAL COURT. 
 
 shall be so certified to have been affirmed or amended, and .execution 
 shall be thereupon executed on jsuch judgment,— and for' the discharge 
 of the person convicted from further imprisonment; if the judgment 
 shall be reversed, avoided,-or ajrested, and- in that case. such sheriff or 
 jailer shall forthwith discharge him, and also the next court of oyer 
 and terminer and jail delivery or sessions of the peace shall vacate the 
 recognizance of bail, if any ;—and if the court oLbyer and terminer 
 and'jail delivery or court of quarter sessions shall be directed to give 
 judgment, the said court shall proceed to give judgment at the next 
 session." 
 
 The following is the form, given in 'the schedule to the. Act, of the • 
 
 Certificate of the -Clerk of- Assize, or Clerk of the 'Peace. 
 
 Whereas at the session of the peace for the county of: , held on 
 
 , before and others their fellows, [or at'the sessio'ns of oyer and 
 
 terminer and jail delivery held for the county of , on , before, among 
 
 others, Sir A. B., knight, one of the {justices 'of the court of , . and'*- 
 
 [here 'name the quorum commissioners'^] justices of oyer qn,d -terminer and 
 
 jail delivery,] A. B<, late of , laborer, having been, found guilty of - 
 
 felony, and judgment thereupon given, that [state the substance,] the court 
 before whom he was tried reserved a certain question of law for the 
 consideration of the justices pf either bench and the barons of the ex- 
 chequer, and execution was thereupon respited in the meantime : 
 This is to certify, that the said justices and barons having met in the 
 
 exchequer chamber at Westminster,' on the : day of -, it was 
 
 considered by the said justices and barons there" that the judgment 
 aforesaid. should be annulled, and an entry made' on the record^ that 
 the said A. B., ought not r .jn the judgment of the -said justices- 
 [*198] and barons, to have *been convicted of the felony aforesaid ; 
 and you are therefore hereby required forthwith to discharge 
 the said A. B. from your custody. 
 
 To the jailer of , and the- sheriff of , and all others.whom 
 
 it may concern. 1 
 
 " "(Signed) E. % 
 
 Clerk of the peace for the county of , 
 
 [or Clerk of assize for , 
 
 . as the case may be.] 
 
 And to prevent any fraud being practised, for the pupose of getting 
 the prisoner discharged by means of a forged or altered certificate, it 
 is enacted, " That every person who shall forge or alter, or shall offer, 
 utter, dispose of, or put off, knowing the same to be forged or altered, 
 any certificate of or copy certified by a chief justice,— -or any certificate 
 
WRIT 03? ERRQR. . 198 
 
 of or copy certified by. a clerk of assize or his deputy, or the clerk of 
 the peace or his deputy, as the Case may .he, — with intent to cause any 
 person to be discharged from custody, of otherwise prevent the- due 
 course of-jUstice,-!-shall be guilty of felony, and^being cdnvicted thereof 
 shall be 'liable, at the discretion of the. court, -to be transported beyond 
 the seas for. any. term not. exceeding ten years, o£ be imprisoned for any 
 time not. exceeding three, years, with 'or without- hard labor and soli- 
 tary confinement, both or either, at, the discretion of the. court before 
 which he -shall be tried.(a) 
 
 SECTION. VI. 
 
 WRIT -OF ERROR. [1} 
 
 (») In tJbhJat cqses. 
 
 After judgment given against a. defendant upon an indictment 'at the 
 assizes or quarter sessions, if' the indictment be bad in substance, or the 
 
 (a) 11 & 12 Vict. c. 78, s. 6. 
 
 - [1] A -writ of error is used'to remote the indictment and others proceedings from the oyer 
 and terminer or sessions ir^to. th*e supreme court, after judgment given in the court below, for 
 the purpose' of reversing such judgment. When once judgment. is given, this is 'the only- 
 remedy for any defect.in the proceedings. '.But it can never be obtained before -judgment. 
 1 Chit! Cr. L. WL 
 
 Massachusetts.— Writs of error, in civil and criminal cases, may issue of course, out of 
 the supreme judicial court, in vacation as well as in term time; and shall be returnable to the 
 same court. 
 
 No writ of error, upon a judgment for any capital offence, shall issue, unless allowed ,by 
 one of the justices of the supremejudicial court, after notice given to the attorney-general, 
 or other attorney for the commonwealth. 
 
 Writs of error, upon judgments in all other criminal cases, shall issue of course, but they 
 shall not stay or delay the execution, of the judgment or sentence, unless they shall he' allow- 
 ed by one of the justices of the supreme judicial court, with an express order thereon for a 
 stay of proceedings on the judgment or sentence. - . ' 
 
 In Massachusetts, a writ "of error lies from the supreme court to the court of common pleas', 
 in all cases where the proceedings are according to the course of the common law. Martin 
 v. Commonwealth, 1 Mass. 347, and in case of reversal, the .court of error is authorized to 
 lender the same judgment as- the court below ought to have rendered. Commonwealth v. 
 Ellis, 11 Mass. 465. 
 ' -New Toek. — In New York, the revised statutes provide as follows : 
 
 In all cases except on trials for capital offences, writs of error upon any final judgment 
 rendered upon any indictment are writs of right and issue of course, in vacation as well as 
 in ten% out of the-court in which bylaw they may be made returnable. 2 R. S. 740,-§ 15. 
 1 Oowen, 339. But where the offence is capital, such writs- can not issue- unless allowed by 
 one of the justices of the supreme court, upon notice given to the attorney-general or to the 
 
198—1 • "WRIT OF ERROR. 
 
 judgment be erroneous,- or any other defect- in substance appear upon 
 the face of the record, the defendant may have the judgment reversed 
 
 district attorney of the county where the conviction was had ; and no Other officer, ia autho- 
 rized to allow such'writs. Ibid, § 14. . 
 
 The statute declares that writs'df error shall issue out of and under the seal of the court 
 in which they shall be returnable, and shall .be tested in the same manner as other writs 
 issued out of such -court. ' 2 R. S T 2^7, § 8. . 
 
 It has been held that where proceedings 'in 'the sessions are removed.into the' supreme court 
 upon certiorari,, before judgment, according -to the 'statute, and they are remitted, a writ of 
 error does not lie to the supreme court from the court of errors, (now the court of appeals.) 
 The People .v. Sfearns, 23 Wend. 634. Nof'-wiU a writ of error lie in'behalf of tie people,' 
 after judgment for the defendant. The People v. Corning, 2 Qomst. 9. In one cS3e\l?ichard 
 v. Walton, 12 John, 434,) it is said that the same rule applies to criminal as to civil cases ; 
 and that a writ of error will not tie granted where the merits have been fairly tried. 
 
 The- statute provides that no writ' of error shall stay pr-delay the execution of the judg- 
 ment, or of sentence thereon, .unless the same shall be "allowed by a justice of the supreme 
 court, or by a circuit judge, with an express direction therein that the same is to operate as 
 a stay of proceedings on the judgment upon, which such writ of error is brought. 2 R. S. 
 740, § 16. . 
 
 .Such writ, when so allowed, shall 'toe filed with- the clerk of the-court in which the judg- 
 ment was rendered, .who shall furnish to the party filing the same; a certificate of the filing 
 thereof,, together with a copy of the allowance. Ibid, § IT. 
 
 If the defendant- be in the custody of the sheriff, and such allowance, direct a stay of pro- 
 ceedings on the judgment; it is the duty of such sheriff, upon being served with the clerk's 
 certificate of such writ being filed, and a copy' of the allowance of such writ, to keep such 
 defendant in his custody, Without, executing the sentence 'passed upon suchjndictmeflt, and 
 to detain the' defendant, to abide such'judgment as may be rendered Upon such writ of error. 
 Ibid, §. 18. 
 
 If the offence charged m the indictment is punishable by imprisonment in a state prison 
 or in a county jail, any officer authorized to allow such writ of error, inay. allow a writ of 
 habeas corpus to bring the defendant before him ; and may thereupon let him to bail, upon a 
 recognizance with sufficient^ sureties, conditioned that such defendant shall appear in the 
 supreme court to receive, judgment on such writ of error, or in the court where the trial was 
 had, at stich time and place as the supreme court shairdirect,'and that he will obey every 
 order and judgment which the supreme court shall make in the premises. Ibid, § 19. 
 
 Upon any writ. of error being filed which" shall, operate-as a stay of proceedings, itis.the 
 duty of the clerk of the court to make "a leturn thereto without^ delay, containing- a tran- 
 script of the indictment, .bill of exceptions, and judgment of the court, certifie'd by the clert 
 thereof. 2 R. S. 740, § 20. , 
 
 The district attorney of the county must bring on for argument, as soon as practicable, 
 the return to such writ of error : and it is also competent for the defendant in any indict- 
 ment removed by writ of error, to notice and bring on for argument the return to such writ. 
 Id. 741, § 21. 
 
 . If an attorney has appeared for the defendant in any indictment so removed by writ of 
 error, or by wtiorari,'by giving notice of his appearance to the district attorney, within ten 
 days after the filing of such writ of error, or within ten days after filing the certificate stay- 
 ing proceedings, notice of argument thereon may be served on such attorney, by the district 
 attorney, as in other cases. If no attorney has so appeared, such notice must be served per- 
 sonally on the defendant if he be in custody; and if he be not in custody,-it may be served 
 by affixing the same in tho office of a clerk of the supreme court. Ib'id, § '22. , , , 
 
 The argument of a criminal case, brought up on error, can not be moved out of its order 
 on the calendar, unless tho notice states the intention to do so. , The counsel for the people 
 has tho right to move such cases out of their order during the first woek of the- term : after 
 that either party may, on duo notice, Ibid, § 23. 
 
WRIT OF ERROR. 198—2 
 
 by the court of Queen's Bench, by writ of error ; or where his proper- 
 ty, real or personal, is forfeited by the judgment, the writ of error may 
 
 No assignment of errors or joinder in error is" necessary upon any- writ of error issued 
 pursuant to the foregoing provisions : but the ooiirt must proceed on the return thereto and 
 render. judgment upon the record before them. Ibid, §^4 
 
 If the supreme court affirms such judgment, it must direct the. sentence pronounced to be 
 executed, and the same must He executed accordingly. If the supreme court reverses the 
 judgment rendered, it must either direct a new trial or that the defendant be absolutely dis- 
 charged, according to the circumstances of the case. 1 Barb. Sup. C. Rep. 136, " 
 
 In a case where the defendant demurred to the indictment, and judgment was given 
 against the people, which was reversed on, error, it was held that the supreme court must 
 pass final judgment for the" people, on the demurrer, and pass sentence ; and that he could 
 not withdraw the demurrer and plead, people v.' 'Taylor, 3 Denio, 91. 
 
 A judgment of reversal, by default, will not be given, in a criminal case . There must be 
 proof of error in the record or proceedings of the court below. Barron v. The People, 1 Bar. 
 Sup. C. Rep. 136. 
 
 If a new trial is ordered by the supreme cqurt/as above provided, the same is to be had 
 in the "court in which the indictment was first tried. 2 R. S. 741, •§. 26. , 
 
 If. a defendant in any indictment 'has been, let' to bail' after the bringing pf, any writ" of* 
 error, and neglects to appear at any-new trial .that may have been ordered, or to appear and 
 receive judgment, the court authorized" to render such judgment, or in which such new trial 
 was directed, may cause such. defendant to be arrested, in the same manner as upon the 
 finding of an indictment, and may forfeit his repognizane'e and direct- the same to be prose- 
 cuted. " Ibid, § 27'. 
 
 Whenever any indictment shall "be removed Into the supreme court, Qr any person indicted 
 shall be brought into that court by habeas -corpus, the justices thereof may remand such per- 
 son and such indictment to the proper cpunty, where such- indictment may be tried ; and the 
 court of oyer and terminer, or the court of sessions to whieh any indictment shall be so re- 
 manded, shall proceed therein in the same manner a3 if such indictment had not been re- 
 moved into the supreme court. Id. 742, §, 28.' 
 
 It is a general rule that if a record come into the supreme court it can not be remanded 
 to the court below. Had it not been for this last section of the statute above referred to, ' 
 (which corresponSs with 1 R. L. 1813, p. 496, § 7, and 6 Hen-. 8, ch, 6,) indictments for felo- 
 nies removed into the -supreme court must always ha"ve remained there. It is in virtue of 
 that statute that they go down to the oyer and terminer or sessions of the proper .county. 7 
 Cowenj'l33." 
 
 Pennsylvania.— Whensoever any person shall'be indicted in any court of "oyer and ter- 
 miner, gaol delivery, or sessions of the peace, the "party charged shall be atliberty" to remove 
 thesa'id indictment, and all proceedings thereupon, or a transcript thereof into the supreme 
 court, by a writ of certiorari, or by writ of error, as the case may require. Provided always, 
 That no such writ of certiorari, or writ of error, shall issue, or be available to remove the 
 said indictment, and proceedings thereupon, or a transcript thereof, or to stay execution of 
 the judgment thereupon rendered, unless^the same shall be specially allowed by the supreme 
 court, or one of the justices thereof, upon sufficient cause to it or him shown, or shall have 
 been sued out with the consent of the attorney-general ; which special allowance or consent 
 shall be in writing, and certified on the said writ. Duulop's L. "Penn. ch. 106, § 7. 
 
 Maine. — No writ of error, upon a judgment for any capital offence, shall issue, unless 
 allowed by one of the justices of the supreme judicial court, after notice given to the attor- 
 ney-general or other attorney for the state. 
 
 Upon, all other judgments in criminal cases, writs of error shall issue of course ; but they 
 shall not stay or delay .the execution "of the Sentence or judgment, unless they shall be allow- 
 ed by a justice of the supreme judicial court, with an express order thereon, fbr a stay of all 
 proceedings on such judgment or sentence, 
 
 80 
 
198—3 WRIT OF ERROR. 
 
 be brought after the deatb, by bis beir or personal representative re- 
 spectively^) And in ordinary cases, it is tbe only way in which 
 
 (a) 2 Hawk. o. 50, a. 11. See 2 Bao. Abr. Error, A. 1, 2. . 
 
 ^ "When a stay of proceedings shall be ordered, as 'provided in the preceding section, the 
 judge may, at the same time,, make such order as the case may require, for the custody of 
 the plaintiff in error, or for letting him to bail; or the party may, upon a writ of habeas, cor- 
 pus, procure his enlargement upon giving bail, if entitled thereto." 
 
 Ohio.— Be it- enacted by the general assembly of the state of Ohio,. That in criminal cases, 
 hot punishable with death, writs of error may, on good cause shown, be allowed on the ap- 
 plication of the defendant, by the "supreme court, or any judge thereof in vacation as in civil 
 cases; and in criminal-cases, punishable with death, writs of Sfror may be.allowed on a like 
 application, by said court when in session, in open court, or by any two judges thereof in 
 vacation. , 
 
 That in all cases of conviction, when the punishment shall be capital, the judges""or court 
 allowing such writ of error, shall order a suspension of the execution, until such writ of error 
 shall be heard and determined ; and upon hearing of such writ of error, they shall order the 
 prisoner to.be discharged, a new trial to be had, or appoint a day certain for the execution 
 of the sentence, as the-nature-of the case may require. 
 
 That in all cases of conviction where the punishment shall be capital, or by imprisonment 
 in the penitentiary, the' court,- judge or judges, allowing such writ of error, may order the 
 same to be made returnable forthwith, before said supreme court, wherever they may be sit- 
 ting, or before said supreme court at their next session in bank ; and shall also order a sus- 
 pension of the - execution of such sentence. 
 
 That in all other case.s, not provided 'for by the second or third sections of this act, the 
 court or judge allowing such writ of "error, may. order a suspension of the execution of the 
 sentence upon the defendant, on his or her entering into a recognizance, before the clerk of 
 the court of common pleas where such cause was tried, with.at least two good and sufficient 
 sureties, to 'be. approved of by said clerk, in such sum as shall be speeifie'd in the order of 
 the court or judge allowing such writ of error ; which recognizance shall be conditioned for 
 the defendant's prosecuting said writ of error to effect, and surrendering himself, or herself, 
 to the -custody of the sheriff of the county in which such conviction was had, in case the 
 judgment of the court of common pleas shall not be reversed, or- a new trial be ordered. 
 Rev. Sts. of Ohio, p. T31, sees. 1-4. 
 
 Maeyland. — A writ of error lies at the instance of the state in a criminal prosecution. 
 But the' allowance of it bythe attorney-general is not necessary. Siate v. Buchanan, 5 Har. 
 & Johns. 329 t 362. In Massachusetts, writs of error, upon judgments in criminal cases; may 
 be brought at any time after such judgments are rendered. Such writs may be entered in 
 any county, as well as in that where the - judgment is rendered, .and shall be entitled to the 
 same privilege as to the bearing thereof, as is given to writs of habeas, corpus. In case of 
 the discharge of the defendant on any such writ, the legal costs shall be borne by the com- 
 monwealth. Stat. 1842, ch. 64. Other provisions are made to facilitate writs of error' in 
 Mass. Stat. 1843, ch. 80, § 2. 
 
 Vermont. — No writ of error shall be allowed in a criminal cause, prosecuted by indict- 
 ment, or information. Rev. Sts. of Vermont, ch. 29, sec. 15. 
 
 Michigan.' — Writs of error in civil and criminal cases, upon any final judgment or deter- 
 mination, may issue of course, out of the supreme court, in vacation as well as in term', and 
 shall be returnable to the same court. Rev. Sts. of Mich. p. 59'5, sec. 1. 
 
 Wisconsin. — Writs of error shall never be prohibited by law. Constitution of Wis., art 
 ,1, sec. 21. 
 
 No writ of error upon a judgment for any capital offence, shall issue, unless allowedly 
 one of the judges of the supreme court, after notice given to the attorney-general of the 
 state. 
 Writs of error upon judgment, in all other criminal cases, shall issue, of course, but they 
 
WRIT OP ERROR. 198-^-4 
 
 the judgment can be reversed,(a) except, upon appeal, as mentioned in 
 the last section. But if the judgment be given by persons who have 
 
 (a) .Rice's case, Cro. Jao. 404 . B.v. J. J. of Error, D. 
 W. M. Yorkshire, 1 T. R. 461. 9 Yin. Abr. 
 
 shall not stay .or delay the execution of tlfe judgment or sentence, unless they shall be al- 
 lowed by one of the judges of the supreme court, with an express order thereon for a stay 
 of proceedings on the judgment or sentence. 
 
 When a stay of proceedings shall be ordered, as provided in the precedjng section', the 
 judge may at the same time make such order, as the case may. require, for the custody of the 
 plaintiff in error, or for letting him to bail, or the party may, upon a writ of habeas corpus 
 procure his enlargement, upon giving bail, if entitled thereto. Rev. Stats, of Wis., p. 560, 
 sees. 7, 8, 9. 
 
 Iowa. — The only mode of reviewing a judgment or order in a crirhinal action, is by a writ 
 of error as prescribed in this chapter. \ 
 
 ' Such writ of error may be, sued out by the defendant at any time within one year after the 
 rendition of judgment but not .afterward. "Notice of the suing out thereof must within five 
 days thereafter be given to the prosecuting attorney of the proper county except in capital 
 cases. 
 
 No writ of error can be sued out in a criminal action until final judgment. has been ren- 
 dered, nor in a capital case except upon the allowance of a judge, of the supreme court and 
 after ten days notice to the prosecuting attorney of' the time and place of making the'appli- 
 cation. , 
 
 In eases not capital writs of error shall issue as a matter of course, but.cannot operate to 
 stay.proceedings on the execution' of the judgment unless allowed in the manner provided 
 in the preceding section. 
 
 Applications for such allowance must in all cases be formed upon a transcript of the in- 
 dictment and bill of exceptions, or other record upon which error is alleged, under the cer- 
 tificate of the clerk and seal of the court where the trial was had. 
 
 When several defendants are tried jointly any one or more^, of them may bring a writ of 
 error. But those of their co-defendants who do not join induing out such WTit shall reap 
 no benefit therefrom. 
 
 When a stay of proceedings shall be ordered as provided in this chapter the judge may 
 at the same time make such order as the' case may require for the custody of the defendant 
 or for lettinglnm to bail. 
 
 If a stay of proceedings be. alio wed" by the judge, .the sheriff upon being served with the 
 certificate thereof must cease all farther proceedings in execution of the sentence, but must 
 retain the defendant in custody or bail him in accordance with the order of the judge to him 
 directed. • v 
 
 The writ of error authorised by this chapter shall be directed to the clerk of the court 
 where the trial was had,and thereupon without delay he must make, out a full and complete 
 transcript of the proceedings in the cause and return them with the' writ to the clerk of the 
 supreme court of the proper district. 
 
 The supreme court must give judgment without regard to technical errors or defects which 
 do not affect the substantial rights of the parties. 
 
 The supreme court may reverse, affirm, or modify the judgment of the district court, and 
 may if necessary or. proper order a new trial. 
 
 If judgment be. reversed without ordering a new trial, the supreme court shall direct if 
 the defendant be in custody that he be discharged, or if he be admitted to bail that his bail 
 be exonerated, or if money be.deposited instead of bail that it be refunded to him. 
 
 On a judgment of affirmance against the defendant the original judgment .shall be carried 
 into execution as. the supreme court shall direct. 
 
 When the judgment of the supreme Court is rendered it must be entered on the judgment ' 
 
198—5 "WRIT OP -ERROR. 
 
 no jurisdiction in the matter, as where a commission authorizes an in- 
 dictment to be taken before A., B., C and twelve others, and by color 
 thereof the commissioners proceed on an indictment taken 
 [*199] before eight persons only, there *the books say that'the judg- 
 ment may be falsified, by showing the special matter, without 
 writ of error, '.because it is void ;(a) which appears to me to mean, that 
 upon the record being brought before -the court -of Queen's Bench by 
 certiorari, that court upon a statement of the special matter on a'ffidavit/ 
 uncontradicted, will quash the whole proceeding. Or, if such matter 
 appear upon the face of the record, the judgment may be reversed upon- 
 writ of error.(S) 
 
 But judgment must have been given, otherwise a writ- of error will 
 not lie. And therefore formerly where a man was indicted for felony 
 and-found guilty, and he prayed his clergy, which was allowed to him 
 he could not afterwards have a writ of-errpr ; for he was convicted only 
 not attainted.(c) 
 
 And the judgment must have been upon an indictment ; for no writ 
 of error will lie upon' a mere summary conviction;^) not even upon a 
 conviction. of forcible entry by justices of the peace upon view ;(e) nor 
 in any other case. . 
 
 And it must be a judgment against' the defendant;^) for there is no 
 instance of error being brought upon a judgment for a defendant after 
 an acquittal. 
 
 If the indictment be against two, and judgment against both, error 
 may be brought by either, but it must be in the names of both ; but 
 if upon an indictment against two, judgment be against one only, then 
 he may bring error in his own name alone. 
 
 (6) Attorney general's fiat. 
 
 Before a writ of error in a criminal case, however, is sued out the at- 
 torney-general's fiat : for it must first be obtained.^) First, therefore, 
 
 (a) 3 Inst. 231 ; 2 Hawk. o. 50, s. 3 ; 4 Bl. ry's case, 2 Jon. 167 ; Vin. Abr. Error, D. ; 
 
 Com. 390, 391. 2 Bac. Abr.' Error, A. 
 
 (6) 2 Bac. Abr. Error, A: 1. (e) Anon. Tent. 171. , 
 
 (c) Long's case, Oro. EJiz. 489; 2 Bao. Abr. (g) 3 Inst. 214; 2 Bao. Abr. Error, A. 1. 
 Error, A. 2.; Vin. Abr. Error, G. (h) 2 Hawk. c. 50, s. 13. 
 
 (d) Anion. Vent. 33. Anon. Id. 171. Ber- 
 
 ^____ , , , __i 
 
 book, and a certified copy of the entry must be forthwith remitted to the clerk where the 
 original judgment was rendered. 
 
 After the certificate of the judgment has been remitted as provided in the preceding sec- 
 tion the supreme court has no farther jurisdiction of theproceedings thereon, and all orders 
 which may be necessary to carry the judgment into effect must be made by the court to 
 which the certificate is remitted. Code of^Iowa, pp. 427, 428, sees. 3088 to 3102, inclu- 
 sive. ' 
 
BAIL. 199 
 
 .obtain a certificate from counsel that there is error in the' record ; and 
 upon producing "that, and a. verified copy, of the' indictment or 'record 
 to the attorney-general-, he usually grants his fiat for the writ of error. 
 This is granted as a. matter of course in misdemeanors, upon sufficient 
 cause -being shown for it ; but in cases of felony, it is'" granted only ex 
 gratia.(a) ■ 
 
 (c) The writ and return. 
 
 -There seems to 'be two modes of proceeding, either of which the par- 
 ty may adopt at his option : he may' bring the writ of error directed to 
 the judges, justices, or recorder, who pronounced the judgment, and 
 have the record returned to the court of Queen's Bench under 
 _ and by *virtue of it ; or he may have the record removed into [*200] 
 the court of Queen's Bench by certiorari, and then bring a writ 
 of error corym nobis upon it.(6) The former, however, geems to be the 
 most approved mode of proceeding. Upon producing the fiat for the 
 Writ at the petty bag office, the clerk there will make out the, writ. De- 
 liver the writ then to the clerk of assize (if the' trial were at the assi- 
 zes,) or to the clerk of the peace (if the trial were at sessions,) and he 
 will, make a return to it For this purpose he must get the record made 
 up, and' engrossed on parchment(c) He then indorses the writ thus: 
 "'The record and proceedings, whereof mention is within made, appear- 
 in a certain schedule to this, writ annexed. The answer of the' com-- 
 missioners [or justices or recorder,] within named." He then annexes ■ 
 the record to the writ, and transmits it to the crown office. 
 
 (d) -Bail 
 
 In cases of misdemeanor, the defendant, in' order to stay execution of 
 the judgment, or, if in custody, to be set at liberty, pending the writ, 
 may enter -into recognizance, with l two. sufficient sureties, ' before any 
 judge of the court of Queen's Bench, or any commissioner for' taking 
 bail in the country, in such sum as the judge or commissioner shall. di- 
 rect, conditioned to prosecute the writ of error with effect, and, in case 
 the judgment shall be affirmed, forthwith to render the defendant to 
 prison according to the judgment, if imprisonment be adjudged.(#) If 
 the defendant be under disability, then a recognizance with two sufficient 
 sureties shall be. taken.(e) The sureties justify, &c, in the same man- 
 ner as in r civil aetions.(#) 
 
 (a) 4 Bl. Com. 392. See Com. Dig. Error, (a) See the form, ante, -p. 193. 
 
 A." Gargmve's case, Eo. Bep. 175. , Vin. (d) 8 & 9 Vict e. 68, s. 1. 
 
 Abr. Error, P. • (e) Id. 
 
 (6) R. t. Foxley, 1 Salk. 266; 3 Com. Dig. (?) Id. 
 Error, B. 
 
200 "WRIT 'OF ERROR. 
 
 Upon the recognizance being transmitted to the crown, office of the 
 court of Queens bench, the clerk there will give a certificate thereof to 
 the defendant's agent, which, being duly verified, by. affidavit made 
 before one of the judges of any of the superior courts of common law 
 or a commissioner, shall be a sufficient warrant to the jailer to discharge 
 the defendant, or, if a fine have been levied, to" authorize the person 
 having the .amount, to repay it to the defendant.(a) ■ 
 
 If the judgment be affirmed, and imprisonment were adjudged, then, 
 if the defendant had been imprisoned any time under the judgment at 
 the time he was discharged, he shall be imprisoned for the- remainder 
 of the time only, which was adjudged. (b) 
 
 (e) Assignment of errors. 
 
 As soon as the writ is returned, and the return filed, get the assign- 
 ment of errors drawn and signed by counsel, engross it on paper, and, 
 in misdemeanors, file it in the crown office; but in, cases of felony, the 
 
 defendant must appear in court, assign errors in person. 
 [*201] *It may be. necessary to mention, that in cases of misde- 
 meanor, if at this or_ any pther stage of the proceedings, the 
 court of error, upon motion, decide that the defendant has wilfully de- 
 layed or neglected to prosecute the writ of error witVefiect r they may 
 order the writ to- be quashed; and thereupon the defendant will be.- 
 liable to execution on the judgment.(c) 
 
 (/) Joinder in error. 
 
 After .filing the assignment of errors, let the plaintiff in error obtain 
 a side bar rule to join in error, and serve it, together with a copy of 
 the asssignment, on the prosecutor or his attorney.; and if he do not 
 file a joinder in error within eight days after service of the rule, the 
 plaintiff in error may sign judgment as'for want of a joinder, at the 
 opening of the office, on the morning of the ninth day, unless an order 
 of the court or of a judge, extending such time, shall have been ob- 
 tained and served, and in such case judgment shall not be signed until 
 the day after the expiration of the time granted by such order.(d) ■ 
 
 The prosecutor, within the time here mentioned, must get his join- 
 der in error drawn, engrossed on paper, and signed by counsel, and 
 must file it at the crown office.(e) 
 
 (g) Argument, dec. 
 Upon the joinder in error being filed, either party may obtain a rule 
 
 (o) 8-& 9 Vict. o. 68, s. 2. (c) Id. s. 5. 
 
 (6) Ids. 3. (d)Rog. Cr.Off. 17, 18. 
 
' JUDGMENT,. &0; , 201 
 
 for a concilium at the crown office and serve it on the opposite party ; 
 and then the. case is set down in the crown paper for argument. The 
 rule specifies the day for which the case will be put into the paper, and 
 must be drawn up and served six days at least before such day within 
 forty miles of- London, or within eight days in other cases.(a) But in 
 all cases where the defendant is in prison, or otherwise undergoing his 
 sentence, the court upon application on his behalf, will in general fix 
 some early day in the termfor-'the argument, and a rule must be drawn 
 up accordingly, which must be served on the prosecutor or his attor- 
 ney. 
 
 Paper books are then delivered by the parties respectively to the 
 judges, and the case argued, as in ordinary cases upon a demurrer j and 
 the court then deliver their judgment. 
 
 (h) Judgment, &c. 
 
 ■The judgment of the, court "of error is either that the judgment of 
 the court below be affirmed, or, quod cassetur. If it besaffirmed, the court 
 will remand the defendant to his former custody, in order that he may 
 undergo his punishment. If it be reversed, then by stat. 11 k 12 Vict. 
 c. 78, s. 5, it shall be competent for the court of error either to pro- 
 nounce the proper judgment, or to remit the record to the court below, 
 in order that such court may pronounce the proper judgment 
 upon such indictment, &c. *This lattej provision seems to [*202] 
 have reference only to cases, where the error is in the. judg- 
 ment itself; as where the -judgment is for ten years transportation, 
 where by law it should only be for seven ; or where the judgment is 
 for transportation, where by law the offence is punishable with impris- 
 onment only ; or the like. Formerly,, in such a case, where the judg- 
 ment was reversed the court hud no power to pronounce any other 
 judgment but merely that of reversal, and the defendant was conse-- 
 quently discharged. (6) 
 
 Where an outlawry is reversed for error, the party is put to plead to 
 the indictment, (c) 
 
 (a) Eeg..Cr. Off 21. (c) 2 Hawk. c. 50, s. 18. 
 
 (6) R. v. Bourne et al., 1 Ad. & El. 58. 
 
202 EXECUTION. ■ 
 
 SECTION VII. 
 
 EXECUTION. [1] 
 
 (a) Death. 
 If sentence of death be passed by a court of, oyer and terminer or 
 
 [1] Massachusetts. — Tbe punishment of death shall, in every case, be inflicted by hanging 
 the convict by the neck, until he is dead; and the sentende shall, at the time directed by the 
 .warrant, be executed within the walls of a prison of the county in which the conviction 
 was had, or within the .enclosed yard of such prison. ' 
 
 The sheriff of such county shall be present at the execution, unless he. shall be prevented: 
 by sickness or other casualty, and also two of his deputies, to be designated by him, and he 
 shall request the presence of the district attorney, clerk or clerks of the county courts, and 
 twelve reputable eitizenS, including a physician or s,urgeou ; and he shall permit the counsel 
 of the criminal, such ministers of the gospel as the criminal shall desire, and his relations to 
 be present, and also such officers Qf the prison, deputies and and constables, military -guard:, 
 or other assistants, as he shall see" fit. 
 
 "Whenever a" sheriff- shall inflict the punishment of death upon any convict, in obedience 
 to a warrant from the governor, he shall makg. return thereof under his hand,- with bis do- 
 ings therein, to the secretary,s office, as soon as may be, and shall also file in the clerk's of- 
 fice of the court, where the conviction was had, an attested copy-of the warrant and return ; 
 and the clerk shall subjoin a brief abstract of such return to the record of the conviction and; 
 sentence. Rev. Sts. of Mass., p. ]?61, sees. 13, 14, 15. 
 
 New Yoke. — "Whenever.any convict shall be sentenced to the punishment of death, the 
 court or a major part thereof, of whom the presiding judge shall always be one, shall make 
 out, sign and deliver to the sheriff of the county, a warrant, stating such conviction and 
 sentence, and appointing the day on wliich such sentence shall be executed. 
 
 Such day shall not be. less than four weeks and not More than eight weeks from the time- 
 of the sentence. 
 
 The presiding judge of the court at which such conviction shall have taken place, shall 
 immediately thereupon transmit to the governor of this stateby mail, » statement of such 
 conviction and sentence with the notes of testimony taken by such judge on the trial. 
 
 The 'governor shall be authorized to require the opinion of .the judges of tbe court of ap- 
 peals justices of the supreme court and of the attorney-general, or of any of them upon any 
 statement so furnished. ' 
 
 No judge, court or officer, other than the governor, shall have any authority to reprieve 
 or suspend the execution of- any convict sentenced to 'the punishment; of death ; except 
 sheriffs in the cases and in the manner hereinafter provided. 
 
 ■ Whenever for any reason, any convict sentenced to the punishment of death, shall not 
 have been executed pursuant .to such sentence, and the same shall stand in full force, the 
 supreme court, on the application of the attorney-general or of the district attorney of the 
 county where the conviction was had, shall issue a writ of habeas corpus to bring such con- 
 vict before, such court; or if he be at large, a warrant for his apprehension may be issued by 
 the said court or any justices thereof. . . 
 
 Upon such convict being brought before the court, they shall proceed to inquire into the 
 facts and circumstances, and if no legal reasons exist against the execution of such sentence, 
 they shall sign a warrant to the sheriff of the proper county, commanding him to do execu- 
 tion of such sentence, at such time as shall be appointed therein ; which shall be obeyed by 
 such sheriff accordingly. 
 
DEATH. 202 — 1 
 
 j ail delivery in the country, the sheriff, of the county or city for which 
 the assizes are holden must execute the sentence, within such county 
 
 The punishment of death shall in all cases be inflicted, by hanging the convict by the 
 neck, until be be dead. 
 
 Whenever any person shall be condemned to suffer, death for any crime of which such 
 person shall have been convicted in any court of' this state, such punishment shall be in- 
 flicted within the walls of the prison of the county in which such conviction shall have ta- 
 ken place, or within a yard or enclosure adjoining said -prison. 
 
 It shair be the duty of the sheriff or under sheriff of the county, to be present at such 
 execution, and to invite the presence by at least three days' previous notice, of the judges, 
 district attorney, clerk and surrogate of said county, together with two physicians and 
 twelve reputable citizens, to be selected by said sheriff or under sheriff: And the said she- 
 riff or under sheriff shall, at the request of the criminal, permit such minister or ministers of 
 the gospel, not exceeding two, as said criminal shall name, and any. of the immediate rela- 
 tives, of said criminal, to attend and be present at such execution; and also such officers of 
 the prison, deputies and constables as saidsheriff or under sheriff shall deem expedient to 
 have present; but no other persons than those' herein mentioned shall be permitted to be 
 present at such execution, nor shall any person under age be allowed to witness the same.' 
 
 The sheriff or under sheriff and judges attending such execution, shall prepare and sign, 
 officially, a certificate setting forth the time and place thereof} and that such criminal was 
 then and there executed in conformity to the sentence of the court and the provisions of this 
 act; and shall procure to said certificate the signatures of the other public officers and per- 
 sons, not relatives of the criminal, who witnessed such execution: And the sheriff or under 
 sheriff shall cause such certificate to be filed in the office of the clerk of said county and a 
 copy thereof to Be published in the state paper, and in one newspaper, if any, printed in 
 said county. 
 
 If in any county there shall not be a jail, or the jail erected shall become unfit or unsafe 
 for'the confinement of prisoners, or shall be destroyed by fire or otherwise, and 'the county 
 judge of such county .shall have according to law designated the jail of some contiguous 
 county for the confinement of the prisoners of the county, it shall be the duty of the sheriff 
 of the county in which any convict sentenced to death shall be confined, to attend upon the 
 day appointed for the executing of the sentence a.t.the jail of said county designated by said 
 judge, and there conduct the proceedings, and execute the sentence in all respects as if the 
 jail was.located in the county where such conviction was had. 2 R. S. (4th ed., Banks, 
 Gould & Co., 1852,) 844-846, sees. 11-29. 
 
 Pennsylvania. — That whenever hereafter any person shall be condemned to suffer death 
 by hanging for any crime of which he or she shall have been, convicted, the said punishment 
 shall be inflicted on him or her within the walls or yard of the jail of the county in which 
 he or she shall have been convicted ; and it shall be the duty of the sheriff or coroner of the 
 said county to attend and be present at such execution, to which he shall invite the> pre- 
 sence of a physician, attorney-general or deputy attorney-general of the county, and twelve 
 reputable citizens, who shall be selected by the sheriff; and the said sheriff shall, at the re- 
 quest of the criminal, permit such ministers of the gospel, not exceeding two, as he or she 
 may name, and any of his or her immediate relatives, to attend and be present at such exe- 
 cution, together with such officers of the prison and such of the sheriff's deputies as the said 
 sheriff or coroner in his discretion may think it expedient to. have present, and, it shall be 
 only permitted to the persons above designated to witness the said execution : Provided, 
 That no person under age shall be permitted on any account to witness the same. 
 
 After the execution, the said sheriff or coroner shall make 'oath or affirmation in writing, 
 that he proceeded to execute the said criminal Within the walls or yard aforesaid at the time 
 designated by the death warrant of the governor, and the same shall be filed in the office of 
 the clerk of the court of oyer and terminer of the aforesaid.county, and a copy thereof pub- 
 lished in two or more newspapers, One at least'of which shall be printed in the county whero 
 the execution took place. 
 
 81 
 
202 2 EXECUTION. 
 
 or city, and not elsewhere. The ' only exception to this is, where the 
 record and prisoner have been removed into, the court of Queen's Bench, 
 
 Passed 10th April, 1834. — Paraph. L.'p. 234. Dunlop's Laws of Pennsylvania, pp. 605, 
 606, sees. 1, 2. 
 
 Maine. — When any person shall be convicted oT any crime punishable with death, and 
 sentenced to suffer'such punishment, he shall, at the, same time, be sentenced to hard labor 
 in the state prison; until such punishment of death shall be inflicted. 
 
 And no person, so sentenced and imprisoned, shall be executed inpursuance of such sen- 
 tence, within one year from the day such sentence Of death'was passed, nor untii the whole 
 record of such proceedings or case shall be certified by the clerk of said court, under the 
 seal thereof, to the supreme executive authority of the state, nor until a warrant shall be 
 issued by said executive authority, under the great seal of this state, directed to the sheriff 
 of the county wherein the state prison shall be situated," commanding the sheriff to cause 
 the said sentence of death to be carried into execution. 
 
 The punishment of death shall, in every case, be inflicted by hanging- the convict by the 
 neck until he is dead, and the sentence 'shall, at the time directed by the warrant, be exe- 
 cuted within the walls of the state prison, or the enclosed yard of the same. 
 
 The sheriff of the county shall be present at the place of execution, unless prevented by 
 sickness or other casualty, and also two of his deputies designated by him. He shall request 
 the county attorney and twelve citizens, including a surgeon or physician, and shall permit 
 the counsel of the prisoner, such minister of the gospel'as the criminal shall desire, and his 
 relations, to be present, and such officers of the prison, deputies, constables and military 
 guard as -he may see fit, but no others. 
 
 "Whenever a sheriff shall infiict the punishment of death upon any convict, -in obedience 
 to a warrant from the governor, he shall make return thereof under his hand with his do- 
 ings thereon, to the secretary's office as soon as may be ; and shall also file in the clerk's of- 
 fice of the court; where the conviction "was had, an attested copy of the warrant and return 
 thereon ; and the clerk shall place the same on file, with the indictment, and subjoin to the 
 record of the sentence a brief abstract of thesheriff 's return on the warrant. Rev. Sts. of 
 .Maine, pp. 106, 101, sees. 8; 9, 10, 11, 12. 
 
 Maetland. — A sentence of death cannot be executed in less than twenty days after the 
 judgment. Dorsey's Laws of Md., vol. 1, p. 583, sec. 1. 
 
 Be it enacted by the general assembly of Maryland, That the governor for the time being 
 shall have full power and authority^ and he is hereby required, whenever sentence of death 
 is pronounced against any criminal by the judgment of any court of this state, to issue, un- 
 der his hand, a warrant to the sheriff of the county who by such judgment ought by law 
 to execute the same, , to order and direct the said^sheriff to execute the said judgment, at 
 • such time as in his warrant he shall appoint, pursuant fo such judgment. 
 
 And be it enacted, That the governor for the time being shall have fall power and author- 
 ity, in his discretion, to commute or change any sentence or judgment of death, passed on 
 any criminal by any court of this state, into other punishment. of labor, or to banishment of 
 such criminal from this state, upon such terms and conditions, and for such period, as he 
 shall think expedient, and if such criminal be a slave, against whom any such judgment or 
 sentence is or may be passed, to commute and change the said judgment into transportation 
 and sale in some foreign country, for the benefit of the state. Dorsey|s Laws of Md., vol. 1, 
 p. 328, ch. 82, sees. 1, 2. 
 
 OniO.— That the mode of inflicting the punishment of death, in all cases under this act, 
 shall be by hanging by the neck until the person is dead ; and the sheriff, and in case- of his 
 death, inability or absence, the coroner of the proper county in which sentence of death, 
 shall be pronounced, by virtue of this act, shall be the executioner. Rev. Sts. of Ohio, p. 
 238, sec. 40. 
 
 Virginia. — Sentence of death, except for insurrection or rebellion, shall not be executed 
 sooner than thirty days after the sentence is pronounced. 
 
DEATH. 202—3 
 
 ■which I shall notice presently, and where a prisoner, for a capital of- 
 fence committed in, the county of a city, or town, is tried and convicted 
 
 The clerk of the court pronouncing- such sentence shall, as soon as may be, after the 
 sentence, deliver a certified copy thereof to the officer of said court, who shall cause the 
 sentence "to be executed. Under such sentence, death shall be inflicted by hanging the con- 
 vict by the neck until he is dead. 
 
 The officer executing a sentence of death shall certify the fact to the clerk of the court, 
 who shall file the certificate with the. papers in the case. Rev. Code of Virginia, p. 780, 
 sees. 8, 9, 10. 
 
 Michigan. — The punishment of death shall, in every case, be inflicted by hanging the 
 convict by the neck until heis-dead; and the sentence shall,- at the time directed by the 
 warrant, be executed within the walls of the state prison, or within the enclosed yard 
 thereof. 
 
 The sheriff of the county shall be present at the place of execution, unless prevented by 
 sickness or otlier casualty, and also two of his deputies, designated by him : and he shall 
 request the presenoe of the prosecuting attorney, and twelve respectable citizens, including 
 a surgeon or physician, and shall permit the counsel of the prisoner, and such ministers of 
 the gospel as the criminal shall desire, and his relations, to be present, and also such officers 
 of the prison, deputies, constables and military guard as he may see fit, but no others. Rev. 
 Stat, of Mich. p. 706, sees. 11, 12. i 
 
 Mississippi. — "Whenever any convict shall be sentenced to the punishment of death, the 
 court or a major part thereof, of whom the presiding judge shall always be onej shall make 
 out, sign, and deliver to the sheriff of the eountyj a warrant, stating such 'conviction and 
 sentence; and appointing the day on which said sentence shall be executed. 
 
 Such day shall not be less. than four weeks, and no't more than eight weeks, from the time 
 of the sentence. 
 
 The judge of the court at which such conviction shall have taken place, shall immediately 
 thereupon, transmit to the governor of this state, by mail, a statement of such conviction 
 and sentence, with the notes of testimony taken by such judge on the trial. 
 
 The governor shall be authorized to require the opinion of the chancellor, the judges of 
 the high court of errors and appeal, and of- the attorney-general, or of any of them, upon 
 any statement so furnished. . Hutch. Miss. Code, p. 955, sees. 10, 11, 12, 13. 
 
 Vermont. — The manner of inflicting the punishment of death shall be by hanging the per- 
 son convicted, by the neck, until dead. 
 
 "When any person shall be convicted of any crime punishable with death, and sentenced 
 to suffer such punishment, he. shall at the same time be sentenced to solitary confinement 
 in the State prison, until such punishment shall be inflicted.' 
 
 No person, so sentenced and imprisoned, shall be executed in pursuance of such sentence, 
 previous to the expiration of one year from the day such sentence was pronounced, nor until 
 the_court which passed the sentence of death, shall have issued their warrant under the seal 
 of said court, directed to the sheriff of the county where the state prison is situated, com- 
 manding said sheriff to cause the said sentence to be carried into execution. 
 
 Said court shall, within three, months after the expiration of one year from the day of 
 passing sentence of death against any person, issue their warrant to 1 the sheriff of the.cOunty 
 in which the state prison is situated, agreeably to the provisions of section two of this act, 
 (§ 8 of this chap.) and the sentence shall, at the time directed by the warrant, be executed 
 within the walls of, the prison, or in the inclosed yard of the same, unless previous to that 
 time, the c legislature of the state shall have commuted the punishment of such person. 
 
 The sheriff of said county shall be present at the place of execution, unless prevented by 
 sickness or other casualty, and also two of his deputies designated by him. He shall re- 
 quest the state's attorney of the county and twelve citizens, including a surgeon or physician, 
 and shall permit the counsel of the prisoner, such minister of the gospel as the prisoner shall 
 desire, and his relatives, to be present, and such officers of the prison, deputies, constables 
 and military guard as he may deem best, and no others. 
 
202 — 1 execution 
 
 in the adjoining county ; in the latter of which cases, the judge may 
 order the judgment to be executed either in the same county in which 
 
 "When a sheriff shall inflict the punishment of death upon any convict in obedience to a 
 warrant as aforesaid, he shall return a copy thereof with his doings thereon to the office of 
 the secretary of state as soon as may be ; and shall also return the original warrant with his 
 doings thereon to the court from which said warrant issued, and the clerk shall subjoin to 
 the record of the sentence, a brief abstract of the sheriff's return upon said warrant. Eev. 
 Stat, of Ver. pp. 568, 569, sees, fi, 7, 8, 9, 10, 11. 
 
 Wisconsin. — When any person shall be convicted of any crime for which sentence of 
 death shall be awarded against him, the clerk of the court, as soon as may be, shall make 
 out and deliver to the sheriff of the county a certified copy of the whole record of the- con- 
 viction and sentence, and the sheriff shall forthwith transmit the same to the governor; and 
 the sentence of death shall not be executed upon such convict until a warrant shall be issued 
 by the governor, under the seal of the state, with a copy of the record thereto annexed, com- 
 manding the sheriff to cause execution to be done, and the sheriff shall thereupon cause to 
 be' executed the judgment and sentence of the law upon such convict. 
 
 If it shall appear to the satisfaction of the. governor that any convict who is under sen- 
 tence of death has become insane, the warrant for his execution may be delayed, or if such 
 warrant has been issued, the execution thereof may be respited from time to time, so long 
 as the governor shall think proper ; and if any female convict who is under the sentence of 
 death shall be quick with child, the governor shall forbear to issue a warrant for her execu- 
 tion, or if such warrant has been issued/the execution thereof shall be respited until it shall 
 appear to the satisfaction of the governor that such female is no longer quick witli child. 
 
 The punishment of death shall"in all cases be inflicted by hanging the convict by the neck 
 until he be dead ; and the sentence shall, at the time directed by the warrant, be executed 
 at such place within said county as the sheriff shall select. 
 
 Whenever the punishment of deatlr shall be inflicted upon any convict, in obedience to a 
 warrant from the governor, the sheriff of the county shall be present at the execution, un- 
 less .he shall be prevented by sickness or other casualty, and he may have such military 
 guard as he may think proper} he shall return the warrant with a statement under.his hand 
 of his doings therein, as soon as may be after the said execution, to the governor, and shall 
 also file in the clerk's office of the court where the conviction was had, an attested copy of 
 the warrant and statement aforesaid ; and the clerk shall subjoin a brief abstract of such 
 statement to the record of conviction and sentence. Eev. Stat, of Wis. pp. 730, 731, sees. 
 7, 8, 9, 10. 
 
 Iowa. — When judgment of death is rendered, the judge of the court shall sign and deli- 
 ver to the sheriff of the county a warrant stating the conviction and judgment and appoint- 
 ing a time on which the judgment shall be executed, which shall not be less than thirty 
 days from the time of judgment. 
 
 If for any reason a judgment of death has not been executed and the same remains in force, 
 the district court, on, the application of the prosecuting attorney of the county where the 
 conviction was had, must order the defendant to be brought before it, or if he be at large a 
 warrant for his apprehension may be issued by that court. 
 
 Upon the defendant being brought before the court it shall inquire into the facts, and if 
 no legal objection exist must make an order that the sheriff execute the judgment, and may 
 fix the time and place of execution. 
 
 The punishment of death must be inflicted by hanging the defendant by the neck until he 
 is dead. 
 
 The-court in issuing its warranter the execution of the sentence of death against a de- ' 
 fendant must direct in such warrant whether the execution be public or private. 
 
 If private, the sheriff must notify the jqdge of the county court, clerk of the district court 
 &nd prosecuting attorney, together with two physicians aud twelve respectable citizens to be 
 present as witnesses of such pxecution. And the sheriff, at the request of the defendant, 
 
DEATH. 202—5 
 
 the prisoner was tried, or in the county of the city, &c, in which the 
 .offence was committed.(a) The judge, however, may order him to be 
 imprisoned; until execution,' in any house of correction, provided it be 
 within the county, &c:, for which the assizes are holden.(6) 
 
 The court of Queen's Bench, however, has power to award exe- 
 cution, not only against those who are attainted or sentenced there, but 
 also against persons attainted in parliament, or any other court of re- 
 cord, the record of their attainder or a transcript thereof being first 
 removed there, and the party broughtthither by habeas.(c) And in a case 
 not very long since, where the sheriff of Chester refused to execute certain 
 persons for murder, the attorney-general moved for a habeas corpus and 
 certiorari, to bring up the prisoners and the record of their conviction ; 
 and the court ■ held that he was entitled to the writs, as of course.(ctf) 
 In the same case, on the prisoners being brought up and the record re- 
 moved, the court gave them three days time, to examine the 
 record, and to instruct counsel to show *cause why execution [*203] 
 should not be awarded against them.(e) And- afterwards, the 
 prisoners insisting on having the benefit of a free pardon, which, had 
 been promised by a proclamation, and which the court held could not 
 be pleaded as a pardon, the court in their discretion deferred awarding 
 execution, until the prisoners should have time to apply to the secretary 
 of state for a pardon, according to the terms of the proclamation.^) A. 
 rule of the court was afterwards made for their execution in the.couuty 
 of Surrey (the county in which the prison of the court was situate,) by 
 ' the marshal of the Marshalsea, assisted by the sheriff of Surrey, and 
 they were executed accordingly : for the court of Queen's Bench, by 
 law, has authority to order the sheriff of any county in England or 
 Wales, to carry into execution their sentence, or the sentence of any 
 other court, even a sentence of death, where the record and prisoner 
 
 (a) 51 G. 3, o. 100, b. 1. 14 & 15 Vict. u. (d) R. v. Garside, 2 Ad. k El. 266; 
 
 55, s. 23. . (e) Id. 
 
 (ft) 5 & 6 W. 4, c. 38, a. 4. (g) Id. 
 (c) 2 Hawk.c. 51, s. 1, 
 
 may permit any minister of the gospel whom the defendant shall name and any of his rela- 
 tives to attend the execution ; and also such magistrates, peace officers, and guards as the 
 sheriff shall deem proper. But no other person than those mentioned in this section must 
 be present at the execution. 
 
 If the sheriff, from sickness or otherwise, is unable to act, the warrant mentioned in the 
 preceding section must be executed by his deputy. 
 
 Whenever a sheriff inflicts the punishment of death upon a defendant in obedience to a 
 warrant he must make return thereof under his hand with his doings thereon to the clerk of 
 the court from whence it issued, and the clerk shall place the same on file with the indict- 
 ment and subjoin to the record of the sentence a brief abstract of the sheriff's return oa the 
 warrant. Code of Iowa, p. 426 sees. 3079—3086. 
 
203 EXECUTION.. 
 
 have been removed there.(d) And they may order this without writ :{b) 
 they usually do it by a rule of the court ; in the central criminal court, 
 the judgment is executed under a warrant from the recorder ; but in 
 the country,. where the trial has been at the assizes, there is nothing 
 more than a mere memorandum of the sentence, written opposite to the 
 name of the prisoner in the calender or list of prisoners, which is signed 
 by the judge, as a warrant to the sheriff to execute the prlsoner.(c) In 
 the rule of the court of Queen's' Bench, and in the warrant of the re- 
 corder of London, the time of -the execution is specified ; but it is not 
 so at the assizes ; the judge however usually reprieves the prisoner for 
 a certain time, (for every- court having the power to award execution, 
 has a discretionary power of granting a reprieve,)(tf) but as soon as that 
 time has expired, or where there is no reprieve, the sheriff may execute 
 the party at such time as he may deem most convenient. As the sen* 
 tence is, that the defendant shall be hanged by the neck until he be 
 dead, — if he be hanged,, but come to life afterwards, he must be hanged 
 again ; for the, judgment is not executed, until he is dead.(e) 
 
 If a woman, when- condemned to death, be quick with- child, she 
 may allege the fact, in order to have the execution respited until after 
 her delivery ; and thereupon the sheriff shall be ordered to impanel a 
 jury of matrons to examine her in a private room, to try the fact, and , 
 if they find that she is quick with child, her execution shall be respited 
 until her delivery.^) 
 
 In the case of murder, the prisoner, after, conviction, must be kept 
 apart from the other prisoners, fed on bread and water only (unless in 
 the case of sickness or wound the surgeon order to the contrary ;) and 
 no person shall have access to him but the jailer and his ser- 
 [*204] vants, the chaplain and the surgeon *of the prison, without 
 'the written permission of the judge, or the sheriff or his depu- 
 ty.^) And when executed, he must be buried within the'precints of 
 the prison.(i) 
 
 (b) Transportation, 
 
 Her Majesty, by warrant under her sign manual, may appoint places 
 of confinement within England or "Wales, either at land or on board 
 vessels in the river Thames or some other river, or port, or harbour, 
 for the confinement of male offenders under sentence or order of trans- 
 portation ;(Je) where they may be kept to hard labor ;(l) and the time of 
 such confinement shall be reckoned in discharge or part discharge of the 
 
 (a) R v Garside, supra. (ff) 2 Ha wk. o. 51, ss. 9, 10. 
 
 M 2 Hawk. c. 51,8.4. (ft) 9 a 4, c. 31, s. 6. 
 
 (c) 4 Bl Cora. 403, 404. (i) 2 & 3 W. 4, o. 75 ; see ante, p. 181. 
 
 [a 2 Hawk... 61, s. 8. (*) 5p. 4, c. 84, s. 10. 
 
 e )Id. B .7. ©lis. 18. 
 
IMPRISONMENT. 204 
 
 term of their transportation. (a) And they may be sent for that purpose 
 to any of Her Majesty's penitentiaries in Great Britain.(6) But where 
 an order for the transportation of any convict, male or female, shall be 
 delivered to the sheriff or jailer, he shall forthwith remove him or her 
 to the ship employed for the purpose, and there deliver the offender to 
 the contractor, together -with a copy (attested by the sheriff or jailer) or 
 the caption and order of the court, and its sentence or order for trans- 
 portation, and a certificate ofiiis crime, his age, trade, &c, temper, dis- 
 position, and his behavior whilst in prison ; and the contractor shall 
 give the sheriff or jailer a receipt for his discharge.(c) 
 
 (c) Imprisonment 
 
 By stat. 5 & 6 "W. 4, c. 38, s. 4, where any person shall be convicted 
 at any assizes or sessions for an offence for which he shall be liable to 
 the punishment of imprisonment, transportation, or death, it shall be 
 lawful for. the court (if it shall so think fit) to commit him to any house 
 of correction for such county, in execution of his- judgment. Or, in 
 cases at the assizes, he may be and usually is, committed to the county 
 jail.' In cases where, for an offence committed in the county of a city 
 or town, the offender is tried and convicted at the assizes for the adjoin- 
 ing county, and judgment of imprisonment is passed upon him, the 
 judge may order such judgment to be executed,-either in the same 
 county, or in the county of the city, &c, in which the offence was com- 
 mitted.^) In what cases hard labor or solitary imprisonment may be 
 inflicted,(e)[l] 
 
 (a) 5 G. 4, u. 84, s. 19. (d) 51 G. 3, o. 100, s. 1 ; 14 & 15 Vict. c. 
 
 (6) 10 A 11 Vict. c. 67. ■ 55, s. 23. 
 
 (c) 5 G 4, c. 84, s. 4; and see the rest of (e) See ante, p. 183. 
 that Act, and stat. 11 G. 4 & 1 "W. 4, c. 39. 
 
 [1] New York. — Wheriever, by statute, an offender is declared punishable by imprison- 
 ment in a state prison for a term not less than any specified number of years, and no limit 
 to the duration of such imprisonment is declared, the court may sentence the defendant to 
 imprisonment for life, or for anytime riot less than that specified. But no person can, in 
 any case, be sentenced to imprisonment in a state prison for any term less than two years. 
 2 E. S. 100, § 12. "There is an exception to this general rule, however, to lje found in the 
 "Act to preserve the purity of elections." Laws of 1839, p. 365. By the fourteenth sec- 
 tion of that act, voting or offering to vote, in this, state, by an inhabitant of another state, is 
 declared a felony, and the person so voting or offering to vote is liable, on conviction, to be 
 imprisoned in a state prison for a period not exceeding one year, at the discretion of the 
 court. 
 
 A sentence of imprisonment in a state prison for any term less than for life, suspends all 
 the civil rights of the person so sentenced, and forfeits all public offices and private trusts 
 authority, or power, during the term of such imprisonment. And a person sentenced to im- 
 prisonment, in a state prison for life, shall, thereafter be deemed civilly dead. 2 E. S. 701 
 sees. 19, 20. 
 
 Massachusetts. — When any person shall be convicted of an offence, punishable at the 
 
204 — 1 EXECUTION. 
 
 discretion of the court, either by fine or imprisonment in the county jail, or bouse of correc- 
 tion, or by a fine or imprisonment in the state prison, the court may award against such 
 offender a conditional sentence, and order him to pay a fine, with or without the costs of 
 prosecution, witlrin a limited time, to be expressed in the sentence, and in default thereof, to 
 suffer such imprisonment as is provided by law, and awarded by the court. 
 
 The person, against whom any such conditional sentence shall be awarded, Bhall be forth- 
 with committed to the custody of an officer in court or to the county jail, to be detained until 
 the sentence be eomplied with$ and if lie sball not pay the fine imposed, within the time 
 limited, the sheriff shall cause the other part of the sentence tQ be executed forthwith. 
 
 Whenever it is provided, that an offender shall be punished by imprisonment in the county 
 jail and a fine, or by imprisonment in the house of correction and a fine, such offender may, 
 at the discretion of the court, be 'sentenced to be punished by such imprisonment, without 
 the fine, or by such fine' without the imprisonment. 
 
 Every court, before whom any person shall be convicted upon an Indictment for any 
 offence not punishable with death, or by imprisonment in the state prison, may, in addition 
 to the punishment prescribed by law, require such person to recognize with- sufficient sure- 
 ties, in a reasonable sum, to keep the peace, or to be of good behavior, of both, for any term 
 not exceeding two years, and to stand committed untii he shall so recognize. . 
 
 In case of a breach of the condition of any such recognizance, the same proceedings shall 
 be had, that are prescribed in the one hundred and thirty fourth chapter, in relation to re- 
 cognizances to keep the peace, and be of good behavior. ' 
 
 ■Whenever any person, convicted of an offence, shall be sentenced to pay a fine or costs, 
 or to be imprisoned in the couuty jail, or in the house of correction,' the clerk of the court- 
 shall, as soon as may be, make out and deliver to the sheriff of rhe county, or to some other 
 officer in court, a transcript from the minutes of the court, of such conviction and sentence, 
 duly certified by such clerk, which shall be a sufficient authority for the sheriff to exeoute 
 such sentence, and he shall exe'cute the same accordingly.' 
 
 In every case, iu which the punishment of imprisonment in the state prison is awarded 
 against any convict, the form of the sentence shall be, that he be punished by confinement 
 at hard labor, and he shall also be sentenced to solitary imprisonment, for such term as the 
 court shall direct, uot exceeding twenty days at one time; and in the execution of such . 
 sentence, the solitary imprisonment shall precede the punishment by .hard labor, unless the 
 court shall otherwise order. 
 
 No convict shall be sentenced to imprisonment iri the state prison for any less time than 
 one year. ' * - "■ 
 
 When any convict- shall be sentenced to imprisonment in the state prison, the clerk of the 
 court shall make out a --warrant, under- the seal of the- court, directed to the warden of the 
 prison) requiring him, as soon as may be, to cause such convict to be removed from the 
 county jail to the state prison; and the clerk shall also annex to the warrant, a certified 
 transcript of such conviction and sentence, and shall deliver the warrant and transcript to 
 the sheriff of the county, who shall cause the same to be transmitted and delivered to the 
 warden, to the end that the* warden may, by himself, or such person as he may appoint for 
 that purpose, cause the warrant to be duly executed, by the removal of such convict to the 
 state prison, in the manner prescribed in the one hundred aud forty-fourth chapter. Rev. 
 Stat, of Mass. pp. 766, 767, sees. 2 to 10. 
 
 Any person, convicted of an offence, punishable wholly or in part by imprisonment in the 
 county jail, maybe sentenced to suffer such imprisonment in the house of correction, instead 
 of the jail, or to suffer solitary imprisonment and be confined at; hard labor, either iu the jail 
 or the house of correction. 
 
 If any boy, under the age of sixteen years, shall be convicted of an offence, which is pun- 
 ishable by imprisonment in the state prison, such convict not having been before sentenced 
 to imprisonment in the state prison in this state, or in any state prison or penitentiary with- 
 in the United States, the court, if sentonco of solitary imprisonment and confinement at hard 
 labor, for a terra not exceeding three yeers, is awarded against such convict, and also when 
 the sentence of confinement, at hard labor, for any term of time, is awarded against a female 
 
IMPRISONMENT.. 204—2 
 
 convict of whatever age, shall order such sentence to Be executed, either in the house of 
 correction or in the county jail, and not in the state'prison ; but. the provisions of this and 
 the preceding section shall not present' the courts in the city of Boston, from sentencing 
 such convicts to confinement in any place, in which juvenile .offenders may be by law con- * 
 fined. . 
 
 When the punishment of solitary imprisonment, and confinement at hard laljor for a term 
 not exceeding v three years, shall be awarded by the court' against any convict, who has not 
 been before, sentenced to the like punishment, by any court In this state, or within the 
 United States, such 'sentence may be executed, -either in the house -of correction, or. in the 
 county jail, or in the state prison. ._ i 
 
 When any convict shall be sentenced to solitary imprisonment and hard labor,, in any 
 house of correction or jail, the master or keeper thereof shall execute such sentence ofsoli- 
 tary imprisonment, by confining the convict in one of the cells, if there be. any in such housa 
 of correction or jail, and if there be none, then in the most retired and solitary part of such 
 housetop jail ; and, during 'the time of solitary imprisonment, such convict shall be fed with 
 bread and water only, unless other food shall be necessary for the preservation of his health.; 
 No intercourse shall be allowed with any convict in solitary imprisonment, except for the 
 conveyance of food, and other necessary purposes, unless some minister of the gospelshall 
 be disposed to visit him, in the manner hereafter provided. • . ., •• 
 
 As soon as the term of solitary imprisonment shall have expired, the master or keeper 
 shall furnish the convict with tools and materials, or with other means, to workin any suit- 
 able manner, in which he can be usefully or profitably employed, either in the said house of 
 correction or jail, or within the close yard thereof ; • such convict may, if ne'cessary r bis confin- 
 ed, by a log and chain, or in such' other manner as shall prevent his escape, without unneces- 
 sarily inflicting bodily pain, or interrupting his labor; the overseers of the house of correc;. 
 tion, or, when such .punishment is inflicted in the- jail, the sheriff of the county, shall oversee 
 the exeoutiotf of all such sentences. 
 
 If any convict shall be refractory, or, during the time for which he is sentenced to hard 
 labor, shall refuse or neglect, without reasonable cause, to labor in any suitable manner, 
 when required, such convict,. So long as he shall continue to bo refractory, or shall refuse or 
 neglect to labor, shall be kept in solitary confinement, and fed with bread and water only, 
 in the manner before provided. Rev.' Sta. of Mass. pp. 782, .783, sees. 17 to 22.. 
 
 "When any person shall be convicted of any offence, and shall be duly sentenced therefor 
 to confinement in the state prison of this state, for one year or more, and ibshalLbe- alleged 
 in the indictment upon which such conviction is had, and admitted or proved on the trial, 
 that the convict has before been sentenced to a like, punishment hy any court in this state; 
 or jn any other of .the United States, for a period of not less than one year, he shall be sen- 
 tenced to confinement to bard labor, for a term not exceeding seven years, in addition to the 
 punishment prescribed by law for the offence, of which he shall then be convicted. 
 
 When any sueh convict shall have twice before been sentenced to confinement to hard 
 labor, for a-period of hot less than one year at each time,'- by any court in this state, or in any 
 other of the United States, he shall be sentenced to confinement to hard labor for his life,- or 
 for a term of not less than seven years, in addition to the punishment prescribed by law for 
 the offence of which he shall then be convicted. 
 
 When the last conviction, in any case .mentioned in the two .preceding sections, shall be 
 had for any offence comrniUed before this statute shall take effect, the additional punishment 
 shall be regulated according to the statutes whioh were in force in this state atj the time, 
 when such last offence was committed, and the sentence shall be awarded accordingly, not- 
 withstanding the repeal' of those former statutes. 
 
 Whenever the wardeh shall be satisfied that any convict in the state prison ha.s before 
 been sentenced to imprisonment in the same prison, or in some.other state prison within the 
 United States, for not less- than one year, it shall be the duty of the. warden -to give notice 
 thereof to the county attorney for the county of Suffolk, who shall by an information filed in 
 the municipal court of the city of Boston, or' otherwise, make the same known to the judge, 
 of the said court; and thereupon such convict shall.be brought before the court, by such 
 
 82 
 
204 — 3 EXECUTION. 
 
 process or order as the judge shall direct, to hear and answer to- the said charge: If the 
 convict, by his plea or answer, shall deny the truth of the charge, the same shall be tried 
 by a jury, in due course of law, who shall be-instructed to inquire, and by their verdict to 
 find, whether the charge in such information is or is not true. 
 
 If it shall appear, by confession of tbe convict,-verdiet of a jury, or otherwise according to 
 law, that the charge is true, sueh convict shall be sentenced to imprisonment in the said' 
 prison for a term not exceeding seven years, -in addition to the sentence to which he stood 
 committed. 
 
 "Whenever it shall appear to the warden that "any convict in 'the state prison has been 
 twice before sentenced to imprisonment in the same prison, or in any other state prison in 
 the United States, for a period of not less than one year at each time, .the convict shall be 
 Fraught before- the municipal court of the oify-of* Boston, in the manner before provided in 
 this chapter, in the case of a convict who has been once before sentenced as aforesaid, and 
 the like proceedings as are provided in that case shall be had for- ascertaining the truth of 
 the charge; and if it shall thereupon appear-to the court that \he charge is true, the con- 
 vict shall be sentenced to confinement to hard labor, for his life,- or for a term of not less than 
 seven years, in addition to the sentence on which he stood committed; and he shall have 
 the same right to appeal from.the judgment rendered in pursuance of this section, as in other 
 cases tried before the said municipal court. ' Rev. Sta. of Mass. pp. 809, 810, 811, sees. 16, l?,' 
 18, 34, 35, 54. 
 
 Maine. — Any person convicted before the supreme judicial court or district court, of any 
 crime or offence punishable, in part or in whole, by imprisonment in the county jail, may "be 
 sentenced to suffer imprisonment, either in the county jail or house of correction at their dis- 
 cretion) to be employed and kept at work there,- in the same manner as rogues, vagabonds, 
 and idlers are by law to be employed, when committed to such-house. 
 
 Either of said courts" may sentence any person, convicted of any offence mentioned in the 
 preceding section, conditionally, to pay a fine with costs of. prosecution, or, .in case he do not 
 pay the same within ten days, that he Toe immediately thereafter conveyed to the' house of 
 correction, and there be kept at Work as aforesaid, for a term, not exceeding six months. ■ 
 
 "Whenever it is provided that an offender shall be punished by imprisonment and a fine, 
 the court may sentence him to either of those punishments without the other, or- to both. 
 
 Every court, before whom any person shall be convicted of an offence, not punishable by 
 death or confinement in the state prison, may, in addition to the punishment by law, pre- 
 scribed, require such person to recognize to the state, with sufficient sureties, in a reasonable 
 sum, to keep the peace or beuf good behavior, or both, for a-term not exceeding two years, 
 and stand committed till he shall so recognize. 
 
 "When a person, convicted of an offence, shall- be sentenced to pay a fine or costs, or to be 
 imprisoned in the county jail or house of correction, the clerk of the eourts, shall, as soon as 
 maybe, make out and deliver to the sheriff or some officer in court, "a transcript of the 
 minutes of the court of the iconviction and sentence duly certified by him : and .this shall'be 
 a sufficient authority for the, officer' to execute such sentence. 
 
 When any convict is sentenced to confinement in the state prison, 'the clerk of the court, 
 before whom the conviction may, take place, shall make out a warrant under seal of the 
 court directed to the warden of the prison, requiring him to cause such convict, without ' 
 needless delay, to be removed from the county jail to the state prison ; and the warden and 
 all sheriffs and jail keepers are required strictlyto obey the directions of it; and the clerk 
 shall, as soon as may be, deliver the same warrant to the sheriff of the county, who is re- 
 quired forthwith to deliver the same to said warden. Rev. Sta. of Maine, pp. 606, 607, sees. 
 
 2 to 7. 
 
 Pennsylvania.— Penitentiary punishments are annexed to the conviction, of felonies, by 
 act of assembly, the nature and term of the imprisonment being prescribed in reference to 
 the specific offence byname. Such punishment is inflicted for.misdeameanors, by act of 
 assembly, either in cases in which the specific offence is named, or in those which are inclu- 
 ded in the class of offences formerly punishable with whipping, pillory, fee., and by the act 
 of 1790 made punishable with fine and imprisonment in the county jail, for a term not ex- 
 
IMPRISONMENT. 204 — & 
 
 cceding two years ; and'by the act of 1807 for a term not exceeding seven years, and if the 
 imprisonment be for two yeais or upwards, it might,have been at the discretion of the court, 
 in the jail of Philadelphia county, and by the act of April 10, 1826, in the western district, 
 it shall be-in the western penitentiary; and by the act of March 28, 1831, and the act of 
 April 14, 1835, sec. 13, in the eastern district, if the imprisonment is for. one year, .or up- 
 wards, it shall be in the eastern penitentiary, and if for a term less than one year it shall be 
 in the jail of the proper' county. . M'Kinney's Am. Mag. pp. 633,' 634. 
 
 Michigan. — When any convict shall -be sentenced to solitary imprisonment and hard 
 labor in any jail, the keeper thereof shall execute such sentence of solitary imprisonment, 
 by confining the. convict in one of- the cells, if there be any in such jail, and if there be 
 none, then in the most retired and solitary part of such jail. 
 
 No intercourse, shall be allowed with any convict in solitary imprisonment, except for the 
 conveyance of food and other necessary purposes,' unless some minister of the gospel shall 
 be disposed to visit him, in the manner hereinafter 'provided. 
 
 All charges and' expenses of safe- 'keeping and maintaining convicts, and of persons 
 charged with offences, and. committed for examination or trial, to the county jail, -shall" be 
 paid from the countyHreasury ; the accounts therefor being first settled and allowed by the 
 board of supervisors. 
 
 . The board of supervisors may, in their discretion, provide by contract' for all necessary 
 supplies for the use of the jail, including fuel and food, clothing, bedding, and medical at- 
 tendance, for prisoners committed on criminal Charges. ■» *» 
 
 It shall be the duty of the keepers of the said prisons, to keep the prisoners.committed to 
 their charge,' as far as may be practicable, separate and apart from each other, and to pre- 
 vent all conversation between the said prisoners. 
 
 Prisoners detained for trial may converse with their counsel, and with such other persons 
 as the keeper, in his discretion, maj; allow: prisoners under sentence shall not be permitted 
 to hold any conversation 'with any person except the- keepers or inspectors of the prison, 
 unless in the presence of a keeper or inspector. . 
 
 Prisoners detained for trial, and those under sentence, shall be provided with a sufficient 
 quantity of, wholesome food, at the expense of the county; and prisoners detained for trial 
 may, at their own expense, and under the directjpn of the keeper, be -supplied, with any . 
 other proper article of food. 
 
 It shall- be the duty of the keepers of the said several prisons, whenever any person shall 
 be sentenced to hard labor therein, and any mode of labor shall be provided, to. cause such 
 prisoner to be kept constantly employed during every day, except Sunday : and annually to 
 account with the board of supervisors of the county for the proceeds of such labor. 
 
 The keepers of the said prisons shall respectively have power, with the consent of the 
 supervisors of the county, from time to time, to cause such of the convicts under their 
 charge,' as are capable of hard labor, to be employed upon any of the public avenues, 'streets, 
 highways, or other works, in the county in which such prisoners shall be, confined, or in 
 any of the adjoining eounties, "upon such terms as may be agreed upon between the said 
 keepers and the officers or other- persons under whose direction such convicts shall be 
 placed. . , 
 
 Whenever any convicts shall be employed under the last section, they shall be well 
 chained and secured ; and shall be subject to such regulations as the keeper legally charged 
 with the,ir custody, shall from time to time prescribe. 
 
 Whenever any prisoner who shall be sentenced to pay a fine and costs, or either, and to 
 be committed until the same be paid, shall be employed at hard labor pursuant to the fore- 
 going provisions, he shall be allowed the sum of seventy-five cents for each day's labor, and 
 when he shall have earned the amount of such fine and costs, he shall be discharged. Rev. 
 Stat, of Mich. pp. 112, 713. 
 
 When any convict shall be delivered to tho keeper of tho state prison, the officer having 
 such convict in his charge, shall deliver to such keeper the certified copy of the sehtencs 
 received by such officer from the clerk of' the court, and shall take from such keeper a oer- 
 
204—5 EXECUTION. 
 
 tificate of tho delivery of such convict- and sucli certified' copy of the sentence of any con- 
 vict shall be evidemee of -the facts therein, contained* Rev. Stat, of Mich. p. 722. - 
 
 Vermont. — "When any person shall be sentenced to confinement at hard, labor, during 
 life, in the state prison, such sentence shall operate as the natural death of such person, so 
 far as it in any way relates to his marriage, or the settlement of his estate. 
 
 "Whenever any person shall be convicted of any offence, the punishment whereof is im- 
 prisonment in the state prison, he shall'be confined to hard labor, during the Whole of his 
 imprisonment. Rev. Stat. "Vermont, p. 570. 
 
 In this country, the legislatures o'f the several states, have provided by law, for the erec- 
 tion, and maintenance of state- prisons, or penitentiaries, in their respective states, for the 
 confinement, at hard labor, of persons convicted of public offences. 
 
 The subject of prison discipline, has, of late been much discussed in Europe- "and this 
 country. Numerous theories have been .started, and some experiments have been made, 
 having for their object the reformation of _ the offender.- Through the efforts of humane and 
 benevolent men, the condition of prisoners, confined for' state offences, -has, within a few 
 years, been greatly ameliorated. 
 
 Eor the purpose of giving the reader some ideaof prison discipline in the United States, 
 we append the statutory provisions on this subject, of the states of New York, Massachu- 
 setts, Pennsylvania^ arid Virginia. 
 
 Prison Regulations in Sew York. — (Rev. St. of N. V.,) (4th ed. Banks, Gould &, Co. 1852,) 
 
 part 4, ch. S.) 
 
 The common jails in the several counties of this state shall be kept by the sheriffs of the 
 counties in which they are respectively situated, and shall he used as prisons. 
 
 Eor the detention of persons duly committed, in order to secure their attendance, as wit- 
 nesses in any Criminal cases ; 
 
 Eor the detention of persons charged with crime, and committed for trial ; 
 
 For the confinement of persons duly committed for any contempt,- or upon civil process,- 
 ahd 
 
 For the confinement of persons sentenced to imprisonment therein, upon conviction for 
 any offence. 
 
 Each county prison shall contain 
 
 A sufficient number of rooms for the confinement of persons committed on criminal process 
 and detained for trial, separately and distinct from prisoners under sentence : 
 
 A sufficient number of rooms for the confinement of prisoners under sentence : 
 
 A sufficient number of rooms for the separate confinement of persons committed on civil 
 process for contempt, or as witness'es. 
 
 The keepers of the several county prisons shall receive and safely keep every person duly 
 committed to their custody for safe keeping, examination or trial, or duly sentenced. for im- 
 prisonment in such prison upon conviction for any contempt or misconduct, or for any crimi- 
 nal offence ; and shall not, without lawful authority, let out of prison,^on bail or otherwise, 
 any such person. 
 
 Prisoners committed on criminal process, and detained for trial, and persons committed 
 for contempts, or upon civif process, shall be kept in rooms separate and distinct from those 
 in which persons convicted and under sentence shall be confined ; and on no pretence what- 
 ever shall prisoners be detained for trial, or persons committed for contempt, or upon civil 
 process be' kept or put in the same room with convicts under sentence. 
 
 Male and female prisoners (except husband and wife) shall not be kept or put in the same 
 
 room. 
 
 It shall be the duty-of the keepers of the said prison to keep the prisoners, committed" 
 to their charge, as far as may be practicable, separate and distinct from each other, and to 
 prevent all Conversation between the said prisoners. 
 
 Prisoners detained for trial, may converse with their counsel, and with such other persons ' 
 as the keeper in his discretion, may allow ; prisoners under sentence shall not be permitted 
 
IMPRISONMENT. 204—6 
 
 to hold any conversation with any person, except the keepers or' inspectors of tlie prison, 
 unless in the presence of a keeper or inspector. 
 
 Prisoners detained for trial and those under sentence shall be provided with a sufficient 
 quantity of inferior but wholesome "food, at the expense of the county ; but.prisoners detained 
 for'trial, may at their own expense, and under tile direction of the keeper," be supplied 
 with any 'other proper articles of 'food. 
 
 - It shall be the' duty of the keeper of each county prison to cause each prisoner under 
 sentence, except such as are'under sentence of death, to be constantly employed at hard 
 labor when practicable, during every day, except Sunday, and it shall be the duty of the 
 county judge or of the inspectors appointed by him, to prescribe the kind of labor at which 
 such prisoner shall be employed, and the keeper shall account at least annually; with the 
 board of supervisors of the county for the. proceeds of such labor. 
 
 The keepers of the said prison shall respectively have power with the consent of the 
 supervisors of the county, from time totime, to cause such of the convicts under their charge, 
 as are capable of hard labor, to be employed upon any of the public avenues, highways, 
 streets, or other works, in the county in which such prisoners shall be confined, or in' any 
 of the adjoining counties,- upon such 'terms as maybe agreed upon between the said keepers 
 and the- officers or other persons under whose direction such convicts shall be placed. 
 
 ■Whenever any convicts shall be employed under the last section, they shall he well chained 
 and secured; and shall be subject -to, such, regulations as the keeper legally charged with 
 their custody shall from time to time prescribe. 
 
 The provisions contained- in the twenty-fourth, twenty-fifth, twenty-sixth, and twenty- 
 seventh sections in the second article of the sixth title of the seventh chapter of the third 
 part of Revised Statutes shall extend to prisoners confined upon any criminal process, or 
 for a contempt, or under sentence, in like manner as for prisoners confined in civil cases. 
 
 It shall-be the duty of the keeper of each county prison to provide a bible for "each room 
 in^the prison to be kept therein, aud he shall, if practicable, cause divine service to be per- 
 formed for the benefit of the prisoners- at least once each Sunday, provided there""shail be a 
 room in the prison that can be safely used for that purpose. 
 
 The provisions in relation to insane persons contained in the thirty-second section of the 
 act entitled "An act to organize the state lunatic asylum and more effectually to provide for 
 the-care, maintenance and recovery of the insane," passed April Tth, 1842, shall be construed 
 to apply to all prisoners in a county jail other than those who are committed for contempt 
 or on civil proeess. 
 
 It shall be the duty of the keeper, 'of each county prison to keep a daily record of the com- 
 mitments and discharges of all prisoners-delivered to his charge, ^which record shall exhibit 
 the date of entrance, name, offence, term of sentence, fine,- age, sex, country, color, social 
 relations, parents, nabits of life, cannot read, read only,- read and write, well educated,' classi- 
 cally educated) religious instruction, how committed, by whom committed, state of health 
 when committed, how discharged, trade or occupation, whether so employed when arrested, 
 number of previous convictions, value of articles stolen.. 
 
 It shall be the duty of the keeper of each' county prison, to receive into the prison every 
 person duly committed thereto, for any offence against the United States by any court or 
 officer of the United States, and to confine such person in the prison until he shall be duly 
 discharged, the United States supporting such person during his confinement. The pro- 
 visions of this artiele relative to the mode of confining prisoners and convicts shall apply to 
 all persons so committed by any court or officer of the .United States. / 
 
 It shall be the duty of the inspectors of the state prisons to visit and inspect, either sepa- 
 rately or collectively, at least once in each year, all the' jails or other county prisons, peni- 
 tentiaries and houses of detention in this state. [So much of the first' and second article of 
 title first of the act entitled "An act for the better regulation of the county and state prisons 
 of the state, and consolidating and amendin'g the existing laws in relation thereto," passed 
 December 14, 1847, as requires the inspectors of state prisons to visit and eximine county 
 jails, iS' hereby repealed.- 1849, eh. 331, sec. 1.] 
 
 For the purpose of carrying into effect the provisions of the preceding section, they shall 
 
204 — 7 .EXECUTION. 
 
 as soon as practicable after entering upon- their official duties, designate .and set apart .to 
 each of 'their number the counties to be ( so visited by them respectively during the current 
 year for the purpose of such inspection, and shall at' the- same time adopt. such plan and 
 regulation; not inconsistent with the laws of this state 1 as they shall deem expedient and 
 necessary to carry into effect a uniform system for the government and r regulatio.n of all the 
 county prisons of this state, and for the modification and improvement' of the structure of 
 such jails and prisons with a view to such uniformity. 
 
 Such plan and regulations when agreed upon and^adopted' by the board of inspectors, ■ 
 shall be by them immediately submitted to the governor, comptroller and attorney-general 
 for their approval, but shall subsequently be subject to such modifications as the said board 
 of inspectors may deem expedient and proper, a'^copy of which shall be furnished to the 
 county judge and sheriff, of each county, and to the keepers of each pf the county prisons or 
 penitentiaries of this state, whose' duty it shall be to observe and carry the same into effect. 
 
 It shall be the duty of the sheriff and keeper of each of the jails and prisons to admit the 
 said inspectors, or any' one of them, into every part of said; jail or prison ; to exhibit to them, 
 on demand, all the books, papers, documents and accounts. pertaining- tp such jail or prison, 
 or to the detention of persons confined" therein ; and to render them every other facility in 
 their power to enable them" to discharge the duties above prescribed, and to enable them-to 
 obtain any necessary information ; the said inspectors shall have power to examine on oath, 
 to be administered by any one of them, any of the keepers or 'officers of such prison or jails, 
 and any person not under sentence confined therein, and to converse with any of the -priso- 
 ners so confined,' without the presence ofthe.keepers thereof, or any o'f them.. ; 
 
 Such inspector or inspectors, after a careful.ahd thorough examination and inspection of 
 each jail and prison, shall immediately make a detailed report of the same, stating the con- 
 dition of the same at the time of such inspection, the number of persons confined therein for 
 the year ending at the date of such-report, the causes of such confinement, the manner in 
 which convicts confined in such jail or prison during. that period have been, employed, the 
 number of persons usually confined .together in one room, the distinction, if any, usually 
 observed in the'treatment of persons therein confined, the evils and abuses, if any, found, 
 to exist in the prison, and particularly whether any of the rules and regulations prescribed 
 by the said-board of inspectors or the provisions contained in title first of this act have been 
 violated, so far as the information required in this section can be obtained from the records 
 of said jail or prison or otherwise. , 
 
 It shall be the duty of such inspector or inspectors, to note and include in such report, or 
 append thereto' any defect or defects he may deem to exist in the structure and arrange- 
 ments of said jail or prison, and'to suggest such improvements in the same as he may deem 
 to be- necessary to carry into successful operation and.to ensure, uniformity in the .system by 
 them adopted, and he or they shall then immediately leave with the- county judge of such 
 county a duplicate copy of such report and suggestions, whose duty it shall be to file'the- 
 same with the clerk of said county, and cause a copy thereof,- and if he shall approve the 
 same or any part, thereof, with such approval indorsed thereon, to be delivered to the clerk 
 of the board of supervisors of said county. 
 
 It shall be the duty of the clerk of the board of supervisors to present such report-and 
 sut«>-estions (so 'indorsed 'by the county judge,) to the board of supervisors at their next 
 moetin" who are authorized and required to cause such alterations to be made, in the plan 
 and construction of the jail or prison of such county, and such additional rooms to be con- 
 structed as shall .have been so suggested and approved by the county judge, and as shall b9 
 necessary to remedy such- deficiencies, and to levy and cause the expenses so to be incurred 
 to be assessed upon the county as other county expenses are levied and assessed. In all 
 cases where there shall exist any deficiency in room or apartments in such county jail or 
 prison as is required for the classification named in this act, it shall be the duty of the su- 
 pervisors to cause such deficiency to be supplied without unnecessary delay. As amended 
 
 1829, ch.. 331. 
 
 It shall be the duty of the board of inspectors, annually on or before the fifteenth day 'of 
 January in oach year, to make an abstract report of their inspections of such county jails and 
 
IMPRISONMENT. 204 — 8 
 
 prisons, to the legislature, in which report shall be included, in tabular form, a summary of 
 the record required by the fifteenth section of. '{his aet, to 'be kept by the keepers of such 
 county jails and prisons. 
 
 It shall -be the duty of the keeper of' 'every prison enumeratcdin this title; to present to 
 every court of oyer and terminer, and to every court of sessions to be held in his county, at 
 the opening of such -court, a calendar stating, 
 
 The name of etery prisoner then detained in such prison; 
 
 The time'when such, prisoner was committed and by virtue of what process or precept ; 
 and, ■ ■ . . ■ . 
 
 The cause of the detention of every such person. ■ 
 
 "Within twenty-four, hours after the discharge Of any grand jury, by any .court of oyer and. 
 terminer, or court of sessions, it shall be the duty of such court to cause every person so 
 confined in such prison upon any criminal charge, who shall not have been indicted", to be 
 .discharged without bail, unless satisfactory cause shall be.shown to such court for detaining 
 such person in custody, or upon bail, as the case may require, until the meeting of the next 
 grand jury in such county. 
 
 After the court of oyer and terminer shall commence its sittings in any county, no-priso- 
 ner detained in the common jail of any such county upon any criminal charge, shall be re- 
 moved therefrom by any writ of habeas corpus, unless such writ shall have been issued by 
 .such court of oyer and terminer, or shall be made returnable beforo it. 
 
 "When any person shall be confined in any county- prison fof-tffe non-payment of any fine 
 not exceeding two hundred and. fifty dollars, imposed for any criminal offence, and against 
 whom no other cause of detention shall exist, on satisfactory proof being made to the county 
 court of the county in which such prisoner .may be confined, that" he is unable, and has-been 
 ever since his conviction, unable to pay such fine, the court may, in its discretion, order his 
 discharge. . > 
 
 There> shall continue to be maintained for the security and-reformatton of convicts in- this 
 state, three state prisons; one at Sing Sing, in "Westchester county; one at Auburn, in the 
 county of Cayuga; and one at Clinton, in^the county of Clinton; which prisons shall respec- 
 tively be denominated the -Sing Sing prison, the Auburn prison, and the Clinton prison. 
 
 The state prisons shall be under the charge and superintendence 'of three inspectors, to 
 be chosen at a general election according to 'the provisions of the fourth Section in the fifth 
 article of the constitution of this state., . , 
 
 The governor shall have the power to remove every inspector so elected, for misconduct 
 or malversation in office, giving- to such' inspector a copy of the-' charge against him, and an 
 opportunity of being heard in his defence. ' 
 
 The inspectors elected at the last general election, shall enter upon the duties of their 
 office on the first day of January, eighteen hundred and forty-height, and each inspector to 
 be hereafter -chosen shall enter on the duties of-his office on the first- day of January, nex't 
 following his election. 
 
 The inspectors, shall bold their first joint meeting on the first Wednesday, in January next 
 at the state prison in Sing Sing, and at suoh meeting shall choose one of their number, as 
 president of the board for the'.ensuing year, and shall assign to each inspector the special 
 charge and supervision 'of one of the state prisons to be designated,, for the ensuing quarter 
 of the year ; and they shall make a similar assignment and designation at the x commencement 
 of each quarterly term thereafter. 
 
 The inspectors ofthe state prisons shall have the power, and it shall be their, duty, 
 
 To visit jointly-each of the state prisons that now are or hereafter may be established in 
 this state, at least four times in each year. 
 
 To -examine and enquire into alLmatters connected with the- government, discipline, and 
 police of each prison, the punishment and employment of the convicts therein confined; the 
 money concerns and contracts for w ; ork and the purchases and sales of the articles provided 
 for each prison or solfl, .on account thereof. 
 
 To require reports from the agent, warden or other officers of the prison in relation to any 
 or all of the preceding matters. 
 
204 — 9 EXECUTION. 
 
 To make such general regulations for the government and discipline of each prisoh n as 
 they may deem .expedient, and from time to time to alter and amend the same, and in mak- 
 ' jng such regulations it shall be their duty to adopt such .as in their judgment, while consist- - 
 ent with the discipline of the prison, shall best conduce, to the reformation of the convicts. .' 
 
 To enquire into any improper conduct wliich may bo alleged to have been committed by 
 the warden or other officer of either of the said prisons, and for that purpose to issue sub- 
 poenas to compel the attendance of witnesses and the production before them of writings and 
 papers, and to examine any witnesses- on path wh'o shall appear before them. 
 
 To keep regular minutes of the meetings, and proceedings at each prison whielrthey shall 
 visit, which minutes shall be signed by them and shall be entered by- the clerk in & book, 
 which shall be kept for' that purpose in each of said prisons. 
 
 To make an annual report to" the legislature on or before the fifteenth day of January in 
 each year, of the state and. condition of each of said prisons, the convicts confined therein,' 
 of the money expended and received; and generally of all the proceedings during the past - 
 year. 
 
 To furnish to the legislature,, with.their respective annual reports, summary abstracts of 
 all the returns which shall have been made to them during the past'year, by the warden or 
 any other officer of each .of the said prisons ; and also a list of all contracts entered.into the 
 past year for the employment of convicts, stating what portion of each contract may have 
 been finished during the year, sums of money received thereon, the probable time of its com- 
 pletion and the amount which will then remain and become. due. 
 
 To cause all orders, rules and regulations. adopted by "them, and the .entries' of their pro- 
 ceedings at each meeting,' to be recorded by the clerk of the prison then visited, and to fur- 
 nish to each officer of the prison, on his appointment, a printed. copy of the general rules 
 and regulations of the prison. \ r 
 
 To employ artizans from abroad fox the puppose of teaching such new branches of busi- 
 ness in the state prisons as are not pursued in the state. 
 
 To prescribe the articles of food and the quantities of each.kind. that shalj.be inserted in 
 each contract for the supply of provisions to each state prison, and.' to authorize each con- 
 tract to be made. for the term of one year, or for any less term, in their discretion, or to cause 
 such provisions to be furnished. by the>agent, in their discretion. 
 
 To employ a suitable matron and'not exceeding one assistant matron to every twenty-five 
 convicts, to supervise and have charge of all female convicts in the female convict-prison at 
 Sing Sing, and to prescribe rules and regulations for the government and' discipline of such 
 convipts,, and to cause them to be employed as shall best, conduce to their support and re- 
 formation. . i 
 
 To transmft to the comptroller of the state on or before the first day of January in each 
 year the account- and inventory rendered to them by the agent of eadi state prison, with 
 such observations and remarks thereon as they may deem necessary to enable the comptrol- 
 ler to understand the same, and to correct any errors that may be discovered therein. 
 
 To cause an estimate to be made of the. value of the goods and other property of the 
 state of which an inventory has been rendered to them by the agent of each state-prison, 
 which estimate shall be made under oath 'by two or nidre competent persons, to be appointed 
 for tbat.purpose by'tbe inspectors, and shall be transmuted by -the inspectors to the comp- 
 troller with the inventory to which it relates. 
 
 To select as far as practicable, such persons in appointing_keepers to each prison, where 
 manufacturing is carried on by the state, as are qualified to instruct the convicts in the trades 
 and manufactures thus prosecuted in such prison. 
 
 The president of the board of inspectors of state prisons, shall have power to administer 
 oaths and to take affidavits in all matters pertaining to tho fiscal affairs, business transac- 
 tions discipline, or government of said state prisons. In like manner the inspector having 
 charge of any state prison, may administer oaths and.take affidavits. 
 
 It shall be the duty of each Inspector to spend at least one week atjhe prison assigned to 
 him at least once in each month, and he shall at that time, diligently examine and en- 
 quire into the condition of such prison and give such general directions in writing, for its. 
 
IMPRISONMENT. 204—10 
 
 government -and discipline, as ,he shall deem to be necessary and- expedient) provided the di- 
 rections so given shall not conflict w,it|}J;he laws of the' state or with the general regulations 
 of the prison as-established by the board of inspectors; each inspector shall keep a journal 
 of his proceedings at each monthly. or other visitation, and shall report; the same to the board 
 of inspectors at their 'first joint meeting. thereafter held at such prison j such journal shall 
 also be entered By the clerk in the book of the proceedings of. the board of inspectors kept 
 ■in the,prisqn to which the'jo'urnal shall relate. 
 
 Bach inspector shall have power to suspend any of the officers of the prison at that lima 
 under his special charge until the next meeting, of the "board of inspectors, and may-appoint 
 some Suitable person. to supply the place and perform the duties of the officer suspended, dur- 
 ing Ms. suspension.' He shalj also have power to' make 'temporary appointments to supply 
 all other vacancies, which appointmerits^hall be in force until the next meeting of the board 
 of inspectors. ' ^ 
 
 AUrappoirrtments'to office made by the'inspectors or by an inspector, and all removals of 
 any, officer by the inspectors or an inspector, shall ba made by an instrument in writing, to 
 • be signed by such inspectors or inspector,'- and in case of removal by any one inspector, . the 
 reason,or causes of sueh removal sh,all be- briefly -stated in such instrument. . The instru- 
 ment -by which sucli appointment or removal is made, within two. days after flie same shall 
 have been signed, shall be 'delivered to the agent of the prison, who shall note- the- same on 
 his next account to be rendered -to the. comptroller. 
 
 Neither the inspectors or an inspector shall knowingly appoint any person to any office in 
 a state, prison who shall be- related to either- of them by consanguinity or affinity within- the 
 third degree: 
 
 ' No inspector shall be Agent of any state prison, to be concerned in the business, of such 
 agency; or hold any other appointment connected, witn said prison-, nor shall he be interested 
 directly-or indirectly in any contract for., the employment of the convicts, or. the supply of • 
 proyisionSj or the purchase, of materials. * 
 
 The inspectors shall appoint to each of. the state prisons the following officers : ah agent; 
 a principal keeper to.be denominated a warden, a clerk, a, chaplain, a physiciatfand surgeon, 
 and so many keepers, not exceeding the proportion of oije to twenty-five convicts, as they 
 may deem it -expedient to employ, 
 
 Whenever any number df qonvicts in any state prison shall' be less than three hundred, 
 the warden of the prison shall have alrthe powers and perform all the duties herein imposed' 
 .upon the agent. " - ' 
 
 Each of the inspectors and each of the officers of each prison" shall,.before entering on the 
 duties' of' his office,, take and subscribe the bath of office prescribed by. the constitution of 
 this state, which -oath may be taken and subscribed before' any officer authorized. by law to 
 take and administer an, oath., The oath of ah inspector shall be .filed in the .office of the 
 secretary of state; and that of the officers of each prison in- the office of the clerk of- the 
 county in winch such prison is situated. 
 
 Each agent of a state prison, and eaoh warden when required to. perform the duties of an 
 agent, before entering on the duties of his- office, shall execute a bond to the people of this 
 state, with sufficient sureties, to be approved by the inspectors, in the penal sum of. twenty, 
 five thousancLdollars, conditioned for the faithful performance of'his duties according to, law, 
 which bqnd shall be filed in the. office of the. comptroller of this s.tate. 
 
 It shall, be the duty of the inspectors, provided there shall be funds' at tKe respective pri- 
 sons sufficient to warrant the expenditure, to causa to l he'erected at as early a period as prac- 
 ticable in each of the state prisons of this state, separate rooms or cells, not less in their di- 
 mensions, in the clear, than nine hundred and ninfetyrsix cubic feet, as follows ; suoh number 
 not exceeding twenty, as the said inspectors shall' deem necessary and expedient at the Sing 
 Sing prison, and under like restrictions, not exceeding ten at 'the Auburn prison, and not 
 exceeding five at the Clinton prison, which cells shall be constructed of stone, in a manner 
 that shall render them safe and secure, for the purposes mentioned in the next following 
 section, 
 "Whenever any oonvict shall be found incorrigibly disobedient to the rules of either of the 
 
 83 
 
204 — 11 'EXECUTION. , 
 
 state prisons, ;t shall bs the duty of the warden thereof to confine him in one of the solitary 
 Sells provided for in the preceding section, at hard labor,' and when" practicable he snail, 
 when so confined, be employed, at the same trade or business "he shall have been employed 
 in immediately previous to Such solitary confinement. 
 
 The inspector having charge, at the time, of such prison, shall from -time-to time visit such 
 cells, and examine into the causes of confinement of each convict thus confined,, and may, 
 if the warden shall concur, designate- the length of time during wbieh'such solitary confine- 
 ment, in each individual case shall continue, subject to the approval of -the board of; inspect- 
 ors at each meeting thereof held at such prison, whose -duty it shall be to regulate and .'con- 
 trol such solitary confinement; and. they shall prescribe the fare and treatment of all con- 
 victs so- confined, and shall adopt such rules and ' regulations hvreference thereto as they 
 shall deem proper, not inconsistent with the existing laws. ■ 
 
 The duties of the agent of each of the stats prisons shall be confined exclusively to the 
 financial concerns thereof. He shall have the -exclusive disposal of the services, and. shall 
 designate the employment of all the convicts, but shaU'exercise no-control over their disci- 
 pline or government, nor shall he interfere in the. government of, or exercjse any, eontroi 
 over the officers of such prison, other than to require them to keep a correct daily- account 
 of the labor of tile convicts under' their charge, and to report the same to him at such pe- 
 riods as he shall require. 
 
 It shall be the duty of each agent of a state prison, 
 
 To, attend constantly •during business- hours, at the 'prison to which he is appointed, ex- 
 cept when -performing some other necessary duties connected with .his- office. 
 
 To attend to the fiscal and business concerns of the prison, and, to use his best endeavors 
 to defray all the. expenses of *the prison by the labor of the convicts. -. - 
 
 To make, under the direction of the -inspectors, in the manner hereinafter provided, all 
 contracts for the employment of the convicts, and for furnishing the necessary supplies for 
 their support. " , . 
 
 To superintend all the manufacturing, and mechanical . business that may be- carried .on in 
 the .prison, to receive the articles' to be manufactured, and to selL and dispose of the same 
 for .the benefit of the s,tate. _ . 
 
 To purchase such raw materials as may be necessary to be manufactured by the convicts. 
 
 To take bills for all supplies and materials for the prison purchased by him, at the'.time of 
 such, purchase, and to take similar -bills and receipts, for .all services that shall be-rendered, 
 for either of the said' prisons at the time of making. payment therefor. 
 
 To enforce the payment-of all debts due to the prison, as soon and with as .little delay as 
 possible, but with the approbation of the inspector having at the time charge of the prison;. 
 . he may accept of any security from any debtor, ■ on granting him time,- that, he may deem 
 conducive to the interest of the state. 
 
 . To submit any controversy that shall arise' relative to any claim or demand of any" person 
 against the prison, or relative to any claim or demand which the agent may have against any 
 person on account -of the prispn, to the arbitration of .two or more persons, to be mutually 
 chosen by the parties; but no such submission shall be mat}e except.with the consent and 
 under the direction of the. inspector.having, for the time, charge of the prison. 
 
 To take charge of all money and other articles which may be brought to the prison by 
 convicts and to cause the same, immediately on the receipt thereof, to be entered by the 
 clerlc.amon"' the receipts of the prison, which money or 'other articles, whenever the convict 
 froni whom the same was or were received shall be discharged from prison, or the same shall 
 be otherwise legally demanded, shall be returned by the agent to such convict or other ; per- 
 son legally demanding the same. A separate^ account shall 'also be kept by the clerk, in a 
 book provided for that purpose, of all money and other articles so received by the agent, in 
 which account each convict shall be credited, with -the money and other articles so received 
 
 from him. - v 
 
 To furnish to each convict who shall be discharged from, prison by pardon or otherwise, - 
 necessary clothing, hot exceeding ten dollars in value, and a sum of money not exceeding, 
 upon an average, three dollars to each convict, as he shall deem, proper and necessary, and 
 
IMPRISONMENT. 204 — 12 
 
 the sum of three cents for 'each' mile for which itmaj- be necessary' for sucheonvict-to travel 
 to reach the place of his residence, and if he has..no residence within the state, to the place 
 of his conviction. " • • ■ > " 
 
 To draw from the treasurer of the state by a warrant of the comptroller upon the treas- 
 urer, in favor of . the agent, all moneys appropriated to the use of the prison under his 
 charge; 'but he .shall '-not draw at any one time, or have in his hands unaccounted for at 
 anyone time,' of moneys, so appropriated; a'greater sum than -five thousand dollars. 
 
 To' draw, each and Every year,f rom the income of the literature fund the sum of one hun- 
 dred dollars,' to be expended" in the purchase of books, -maps and stationary for the use of 
 ihe- convicts, and shall append to his -annual report a catalogue of such prison library. 
 
 To account monthly with the comptroller for all' moneys so'drawn by him from the trea- 
 surer of the-state, *nd for" all other moneys received by him as such agent, frgm ' Whatever 
 source the same may be derived. '-'•'- ■' i 
 
 To keep regular and correct account of'all moneys received by him from any source, what- 
 ever^ by virtue of.his 'office,- including all moneys taken' from convicts or .received as the pro- 
 ceeds of property taken from them, and all sums paid by him and the persons .to whom, and, 
 purposes.for which the same were paid. 
 
 To close his account annually on the last..day of September, of each year, and on or be' 
 fore the first day of December thereafter, to render to the inspectors a. full and true- account,' 
 accompanied by a copy* of the necessary vouchers, .of all moneys received by- him on ac- 
 count of the prison under his charge? and. -all the moneys expended by him. for the, use 
 thereof, and -also an inventory of th'e goods; fa'w materials and other property 'of the state 
 then on hand, exhibiting in detail, all the transactions of the'prison for the.year.' 
 
 The- monthly accounts to'be rendered by the agent of-each prison to the comptroller, shall 
 embrace a general current account of the receipts and "expenditures at his prison for the 
 month, and an abstract of the' expenditures in detail, wliicl; shall be accompanied' by the 
 necessary vouchers regularly numbered, according to their respective dates, with some short 
 . designation thereon of the consideration of the payment, evidenced by the vouchers, and-tne 
 amount of -the voucher carried out in figures-; such; account shall be attested by the affidavit 
 of the agent and clerk thereunto annexed. - % 
 
 All the fiscal' transactions' and dealings on account of each prison, shall be conducted by 
 and -in the-namepf,the agent thereof Who shall b'e'"capable in law of suing and'being sued 
 in all courts and places, and in all matters concerning 'the prison by .his name ' or office, and 
 by that'name shall be authorized to sue- for and recover all Sums of money due from any pef- 
 son.to any former agent of the -prison or io the people 6T this.state on account of .Such pri- 
 son. \ .' v 
 
 i ■ * . ■ J ..., - - , 
 
 It shall'be the duty of the Comptroller of the state to examine and audit the accounts of 
 
 the. respective agents, and annually to lay^, statement thereof before the legislature. 
 
 The duties of the wardens of each of the state prisons shall be exclusively confined to the 
 government, discipline and police regulation of the same. , 
 
 It shall be the duty of the warden of each prison, 
 
 To reside in and.attehd^constantly-at thg prison, and to exercise a general*supervlsion over 
 its governnaent, discipline and police. 
 
 To give the necessary directions to the keepers and to examine whether they, nave been 
 oareful and diligent io the -discharge- of their several duties. 
 
 To examine daily into the state of the prison, and into the health, condition.and safe keep- 
 ing of the convicts, sind to enquire into the justice of any complajnts made by the- coflyicfs 
 relative to their provisions, clothing and "treatmeut by the keepers. 
 
 To make such general orders or rules, for the government of the subordinate officers of the 
 prison as he may deem pfoper, and as.shall be approved Joy the board of inspectors; such 
 rules and orders shall be in" writing and shall Be entered^in a book to be kept by the warden 
 for that purpose, and shall be subject to any alteration or amendment by the inspectors. 
 
 To keep a'daily journal of the proceedings of the prison, in which shall be entered a note ■ 
 of every infraction of the-rules and regulations of the prisons by any officer thereof which, 
 shall come to his knowledge, and of every punishment inflicted on a convict, the nature ansl' 
 
204 — 13 EXECUTION. 
 
 amount thereof, and by whom it was inflicted, and also a memorandum- of £very well found- 
 ed complaint made, by any convict of bad tir insufficient food, Want , of clothing, "or- cruel, or. 
 unjust treatment by a keeper; such journal shall be kept open at all times- to the- examina.- 
 tion of the inspector in charge of the prison, and of the board' of inspectors. .•'"'"' 
 
 To receive into the prison under his charge, on the order, of the governor, any person con- 
 vioted of any crime punishable with death or who shall'be pardoned on condition of being 
 confined either for life or a a term of years in a state prison, and to confin6 ; such prisoner ac- 
 cording to the terms of such condition. , , ^. ,-.'_. 
 
 To admit the inspectors of prisoils-W any one.of them into every part of the.prison, to ex- 
 hibit to-them on demand all the books, papers warrants and writings- pertaining to the pri- 
 son or to the business, management, discipline or government thereof, and to render to them 
 every other facility in his power to enable them to discharge their duties un'der this title. 
 
 To make a monthly report, through the inspector having -charge of the prison, to, the in- 
 spectors, statfng the names of all convicts received into the prison 'during the- preceding . 
 month, the counties in which they.were tried,, the crimes of.wh'ich-they wer'e-convieted, .the 
 nature and duration of their sentences, their.former trade, employment or occupation, the 
 nature of their employment in. prison, their habits,, color,' age, place of nativity, degree of in- 
 struction, and a description- of their persons,, and also- stating whether- such convicts have 
 ever before been confined in any state pr county prison, and if so, stating the offence for 
 which they .were confined, and the -duration of th.eir punishment, and also stating in such re- 
 port the names of all-the convicts pardoned cuvdfsoharged' during the -past month, and' all 
 other particulars in relation to the~ parties so pardoned- or discharged, that are required- -to be- 
 Stated in relation to the convicts received in the prison. '.. 
 
 Whenever there shall exist a" vacancy in, the office of agentfof either of the. prisons, alLthe 
 powers and duties^of such- agent shall -devolve, upcta; and bo executed by the warden of said 
 ■prison until such vacancy, shall be filled.^ .- .'-.._' - - ' •• 
 
 • The agent of each prison shall possess all the powers, and discharge ail the duties of the 
 warden of the prison during q vacancy in the' office of warden, or -disability in, the warden 
 from any cause to act. ■ . - ' . 
 
 The clerk of the prison shall act as clerk of the board of inspectors, and before-entering: 
 on the duties of his office as such clerk, shall execute a bond. to the people, ef the .state, ^th 
 sufficient sureties, to be approved by the'jnspectors, in the penal sum of four tlious'and'clol- 
 lars, conditioned for the faithful performance of the duties of his office-as such -clerk, which 
 bond shall be filed in 'the office of the comptroller of the state. 
 
 It shall be the duty of each clerk of the prison to which he is appointed, - 
 
 To attend at the prison daily'during'the proper business hours, unless by the direction of 
 an inspector or- of. the agent he is otherwise engaged^n transacting business on aocount of 
 the prison. ■ ■ • » " ' 
 
 He- shall keep a register of convicts, in which the names of the convicts shall be: alpha- 
 betically arranged, and in which shall, be entered, under appropriate columns, the date ,Of 
 conviction, where born, age, occupation, complexion,- stature, .crime, court, county where con- 
 victed, ter^n 6f sentence, number of previous convictions, to what prison or prisons previous- 
 ly sent, when discharged, and how discharged. The inspectors, may require such additional 
 facts to be stated on the register as they may deem proper. 
 
 To keep all the books, and accounts of' the financial .transactions of the prison, and annu- 
 ally report to the inspectors on the thirty-first day of December, the number of convicts re- 
 maining' in prison, at the commencement of said year, the number received during the year, 
 the number discharged by. pardon, expiratipn of sentence, habeas Corpus or by.the courts, 
 the number of deaths and escapes, and thenumber removed to.the. house of refuge and lu- 
 natic asylum,and the number then- remaining in priabn. 
 
 To examine all articles purchased by the agent for the use of the prisonat the time of 
 their reception, and compare them with bills thereof, to ascertain whether tb,ey correspond 
 in weight, quality and quantity, and- to inspect the supplies which are furnished for the pri- 
 son on contract or otherwise, and to ascertain whether they correspond with tho contract or 
 
IMPRISONMENT. 204—1 4 
 
 with the provisionsof law Regulating the same ; and in case of any discrepancy, to report 
 the same immediately;tp the agent. 
 
 ■To enter each bill Jaken by the agent of the prison, in the books i>f the prison, unless he 
 -shafi. know, or have reason to believe that such bill is erroneous; in which ease he shall re- 
 port {lie bill with his- objections thereto, to-the. agent Of the prison,, and shall obey the di- 
 rections of the agent in relation thereto. —He Shall do -such writing as may be required of 
 him- by' the, superior officers of the prison,: relating to the affairs of such prison. ' , 
 
 To have charge and custody of ah the books of account, registers, returns and other docu- 
 ments and papers relating' to the affairs of the prison; all of which shall be preserved and 
 remain in the prison as public property, and shall be open at all time's to the examination of 
 each inspector and of every other'person authorized by-law .to ■examine'the same. 
 • To preserve in the prison-a set of all official reports made to th e legislature respecting the 
 same, and a set of Similar reports in -relation to each. .of the other state prisons, for which, 
 purpose a- suitable number of such reports, when printed, shall be-'supplied'to him by the 
 secretary of state. • . • 
 
 , To make an annual report to the secretary of state on or before' the first Tuesday of Feb- 
 ruary in each year, stating the names, of convicts discharged of pardoned during the^preced- 
 ing year from said prison, and all tire particulars in relation to such convicts as are required 
 to-be stated in the warden's monthly report to, the inspectors, and stating also,- in cases of 
 pardon, the time unexpired of the time for which^the eonviets so pardoned were respective- 
 ly pardoned, when such pardons were granted, and the conditions, if "any, on which they 
 were granted,, and also the state of health of each -convict so pardoned, at the. timerOf his 
 discharge.' 
 
 'To make an annual report to the inspectors on .or before the first .day of December in each 
 year, exhibiting the number of "convicts then eonfined therein, the -various branches of busi- 
 ness, in wh-reh'they are employed,- and-the number-employed in each branch. 
 
 The -keepers in each prison shall preserve proper discipline among the convicts under their 
 respective charge ; shall take care that they are diligently employed in- the Tabor or business 
 assigned to them. It shall- also be the duty- of each keeper having the charge of convicts 
 employed upon contracts or otherwise, to keep a correct daily account of the labor of each 
 convict, so employed, in -the manner that shall be prescribed by the agent, and. shall make 
 reports to' him of the same at such periods as the agent shall require.' 
 
 The matron of the female convict prison at Sing Sing, shall have the same powers, and , 
 .perform the same duties in relation to that prison as are herein given and imposed upon the 
 wardens of prisons, and the powers and duties of assistant matron shall be thasame'as those 
 of the keepers of the prison ; but such matron and assistant matron shall in all cases be bound 
 to obey such regulations and instructions as the .inspectors shall from time to time prescribe. 
 
 It shall be the ; duty of the chaplain of the prison, 
 
 To perform religions services in. the prison, under,sueh regulations as- the.inspeefors may 
 prescribe, and to attend to the spiritual wants of the convicts. 
 
 To visit the .'convicts, in tl;eir -cells for the purpose~of giving them religious and moral in- 
 struction, and tojdevote at least-one hour in eachrweek-.day, and the afternoon of each Sun- 
 day to such instruction. -■ 
 
 To furnish, at the expense of the state, a bible and.hymn^ook to each convict. 
 
 To .take charge of the library, and to take care that no improper book? are introduced into 
 the cells-bf the convicts, and if , any sueh booljs shall' be found either iri the cells .or 'in the 
 possession of a convict, to take away and returnthe same to the agent, and for the purpose 
 ' of properly discharging these, duties, to visit weekly each cell' in the prison. 
 - To visit daily the sick in the hospital.. 
 
 To'make an . anuual report to the inspectors, up to the first day of December, relative to 
 the religious and moral conduct of the prisoners during the past year, stating therein what 
 services he shall have performed;- and the fruits,-if any, of his instructions, and shall append., 
 thereto, as far as practicable, in tabular form, a statement exhibiting the number of convicts 
 then in prison; the number ofcwhite males between the ages of twenty and thirty, thirty ajid 
 forty, forty and fifty, fifty and. over, and in like manner of black males, white females, and 
 
20.4H-15 ■ EXECTJTIOST. 
 
 black females,- tbe'number born in.the United . Stated; foreigners and of -what country, tlie 
 number that can not read, that can readonly, read a'rid write, well educated,' classically edu- 
 cated, temperate, intemperate, health, scrofulous, whether employed at the time of the com- 
 mission of the Crime, counties where convicted, Occupation, sentence, liow many tim.es' re- 
 committed, and social state. , . , *•"•." 
 
 Two instructors, shall be appointed by .the board of inspectors for 'each of the prisons at 
 Sing Singaiid Auburn, and one for'the r ClintQn state prison ;-it shall totbe duty'o'f such 
 instruators, in-conjunction with.and under the. supervision ,0f 'the chaplain, td-give' instruction 
 in the useful branches of an English education, to such corificts as, in. the judgment of the 
 warden or the. chaplain may require the 1 same and-be benefitted by it ; such instruction shall 
 be given for not less than one hour and a half dailyj Sunday ax:cepte.d, between >the' hours 
 of six and nine in the evening. " .. - > '■ -,'-. 
 
 The inspectQrs of "state prisons shall appoint one instructess for the, female convict-prison 
 at. Sing Sing, whose .duty it shall.be, in conjunction with and under the supervision, of the 
 chaplain, to give instruction in'the useful branches of learning to sueh convicts as in the judg- 
 ment of the matron or the chaplain, may requW.the 'same and- be benefitted by it ; sifoh 
 instruction to be given for not less than'-one hour and. a half daily, (Sundays excepted,) 
 between the hours ofibur -and six in the afternoon. 
 
 Such, instructress shall receive an -annual salary of .one- hundred and forty-fotir dollars, to . 
 be paid monthly at the end of.each month, by the agent,- out- of the funds of the- prison. 
 
 The chaplain shall make a quarterly report to the inspectors, stating the number, of con- - 
 victs that shall have been instructed during the'last quarter", the branches^ education in 
 which they shall have been instruoted, -the text-book used in such instruction, -and the pro- 
 gress made by the convicts,, and to -note, especially, any cases in which an unusual- progress 
 has been made .by a convict. ■> ■ - ' - 
 
 The physician of each prisoashall have charge of the hospital, and'sliail attend at all. times- 
 tp the wants of the sick convicts, whether in the hospital or in fheir cells, and if the inspectors 
 shall deem it necessary, they.shall "require the physicians at the Sing'Sing'and Clinton' prisons 
 respectively, .to reside in the prison, and in that case' they may, in'their discretion, add not 
 -- exceeding -one hundred dollars, to the salary of each of .the Said physicians respectively, and 
 it shall be the farther duty of such physician, - -' ;''- ,'"•■■ 
 
 To examine Weekly the cells of the convicts for the purpose of ascertaining whether they 
 are.kept in a proper state of- cleanliness and ventilation, and report 'the same weekly to the 
 warden ; ' - • , , . 
 
 To report monthly to the inspectors the number of patients received into, the hospital 
 during the month, stating their respeetivaages, "color, disease and pcciipations'in prison, the ■ 
 quantity and kind of medicines administered during the month, the number of those dis- 
 charged, their cOnditipn when discharged, the time they shall have remained in the hospital f 
 the number of deaths,- stating the cause of sudi deaths, and it, shall be his -further- duty. to 
 state in such report the number of sictconviqts not received into the hospital for whom> he 
 shall have prescribed' daring the last month, and the quantity and -kind of the medicines so 
 prescribed, and the number .of days during which such convicts, in consequence of sickness 
 shall have-been Relieved from labor ; 
 
 Tq examine daily into the quality and state of the -provisions delivered to the prisoners, 
 and whenever he shall have reason to believe that any of sueh provisions are prejudicial, to 
 the health of the prisoners, he shall immediately make a report thereof to the warden and 
 agent of the prison-; he shall also, have power, and it shall be his duty to prescribe the diet 
 of sick converts, whether.in the hospital or ig their cells .or elsewhere, and his directions' in 
 relation thereto shall be followed by the agent and warden ; 
 
 To keep a daily -record -of all admissions to the hospital, indicating the sex, color, nativity," 
 age occupation habits of life, crime, period of^entrance and discharge .from the hospital, date 
 of admission to the prison, time in county prison before conviction, disease, if afflicted with 
 sprofflla before admission, scrofula during the first, second and third* six months aft'er ad- 
 mission to prison, and of the, prescriptions and treatment of each case ; 
 
 To make a yearly report to the inspectors of the sanitary condition: of the prison for the 
 
IHPBIS0NME1CT; 204 — 16 
 
 past year, in which'-all the information contained in his daily record and his monthly reports 
 shah" be condensed. 
 
 'There shall continue to be maintained- at- each state prison, a guard, to be employed by 
 the inspectors^ to consist - of one sergeant arid so many -privates as the inspectors may from 
 -time to "time direct ; but- the guard at Sing 'Sing; including the sergeant shall not exceed 
 thirty in -number ; the guard at Auburn shalTnot exceed the number of twenty, and that at 
 Clinton shall not exceed the number of twenty-five. • ■ 
 
 The said guards shall continue to be' furnished from the. arsenal of this state with sufficient 
 arms, ammunition- and accoutrements, and shall be Subject to the command and direction of 
 the warden • of- the prison, who may also dismiss at pleasure, any of the said guard, and 
 employ- others in their stead until -the~pleasure of the inspector shall be known. 
 
 The annual -salaries, of the officers and guards shall he. as follows, viz : 
 
 The agents and wardens of the several- sta,teprisons shall respectively receive, a salary of 
 one thousand" dollars ; but the .warden of the .Clinton prison," so long as there shall be no 
 separate agent' for "such prison shall receive, in addition, the sum of -five hundred dollars, all 
 which salaries shall he- payable monthly at the end of each month. 
 
 The clerk qr\each prison shall receive a salary of eight hundred dollars; the chaplain of 
 six hundred dollars ;. thephysieian, -.of five hundred dollars, and the insfructqr of one hundred 
 "and fifty- dollars, -to be paid monthly at the end of each month. 
 , The keepers- in each prison shall receive' an annual salaryof five- hundred and fifty dollars. 
 
 The.salary of the guards shall be three hundred" and sixty dollars. ';' . 
 
 The salaries of the Keepers' and guards shall- also be paid monthly- at .the~^end of each 
 months » , ' - - ■ - 
 
 The principal matron at Sing Sing- shall receive a salary of five hundred dollars, and each 
 assistant matron a salary of three hundred -and 'fifty dollars, to be paid monthly at, the end- 
 of each month. 
 
 The salaries of the officers of each prison,, and all other expenses in relation to' each prison, 
 shall be paid by the. agent-of each prisofi. out Of the funds "thereof. . , 
 
 The comptroller is hereby authorized, to audit and allow frojh.time to time, all .necessary- 
 travelling expenses and subsistence of the agent and warden of each state prison,,' when 
 necessarily travelling on official business, or when the attendance of such agent 6r. "warden 
 is required at the seat of. government ;' the necessity of such' travel and attendance to be 
 decided by the comptroller, and the accounts when. audited to be paid by the treasurer on 
 the warrant, of the comptroller.. - . - . 
 
 vThe-agent, wardens and 'other .officers, and the guards of the respective prisons, shall- sup- 
 port themselves from their own -salaries and resources, and shall not receive any perquisites 
 or emoluments for their services other than' the compensation provided in this article, except 
 that the- agents, wardens,, physicians and chaplains shall ke'ep their offices at the respective 
 prisons,, arid that the wardens shall reside therein ;< they shall all be furnished, with the fuel 
 for their offices, and those who are required to. reside in the prison,- for themselves and fami- 
 lies, from the stock provided for the use of- the state, and from.tbe same stock the warden 
 shall furnish, fuel for -the barracks of the guards. . •-->; - .. 
 
 It shall be the duty of the court in which any person shall, be convicted of an offence 
 punishable in a state prison, before .passing the sentence, to ascertain by the, .examination of 
 such convict on oath, and in addition to such oath,- by such other evidence as can be obtained, 
 whether suoh convict had learned and practiced any mechanical trade, and the clerk 'of 'the 
 court shall enter the facts as ascertained an^ decided by the. court, on the minutes thereof, 
 and shall deliver a certificate stating the facts as ascertained, to the -sheriff of the county, 
 who shall, cause the same to be delivered to the warden of the proper prison at the 'same 
 time that sueh'convicWs delivered to the Said warden pursuant 'to his sentence. 
 
 No convict who shall hereafter be sentenced to imprisonment in either of the state .pri- 
 sons shall be permitted to work therein at any other mechanical -trade than that which, as 
 shall appear -by the certificate of the clerk of the court in which he was conyicted,-sueh con- 
 vict had learned and practiced previous to his conviction, except in the making or. manufac- 
 ture of articles for which the.chief supply .for' the consumption of this state is imported from 
 
204 17 EXECUTION. 
 
 other countries or states, except also, that the conviets"'at Sing .Sing -inay .toe -employed in 
 the cutting and manufacture of stone, .and the convicts. at Clinton in the manufacture'-of ' 
 iron. . . . , 
 
 If the agent or warden of the prison in which any convict shall be detained shall ascer- 
 tain that such convict had -been -previously in' a state prison -or* penitentiary, he may in his 
 discretion, direct such convict to be employed in the same kind- of'labor in which hejiad 
 been employed during such fcoaner imprisonment, notwithstanding it may appear from the 
 certificate of the conviot-that a different trade.had been learned orpracticed by him ; andif 
 the agent of either prison shall ascertain to bis entire satisfaction, 'that any convict so certi- 
 fied, had not in fact learned and practiced previous- to his conviction,' the trade mentioned in 
 Ms certificate, he may, with the approbation' of the inspector then -having charge-ofsuch pri- 
 son, direct such convict to -be employed,in the tfade or kind Of -labor which he -Basil have ■ , 
 ascertained by competent proof that such .convict had'prevfously. leamecTand .practiced.- • ■ 
 
 The inspectors may, by order from time*, to' time, prescribe the kind of labor in Which the 
 female- convicts in the Sing Sing prison, shall be employed; having' due regard," in making 
 such order, to the mechanical, interest of the citizens of the state.- "- • '.--' 'i 
 
 No inspector, agent,- warden or other officer of either of the prisons of this state shall em- 
 ploy the labor of, any convict or other persons employed in -such prigon on any Work in which. < 
 such inspector agent or other officer shall be interested. . 
 
 Any inspector, agent or warden of either the state prisons who shall knowingly "let or lire, 
 or consent to the letting^or hiring of the4abor or services of z. convict contrary to" law, .and 
 any officer of either prison who shall, knowingly or wilfully, cause a -Convict to be : employed - 
 at work-prohibited bylaw, shall be deemed guilty of a misdemeanor, and '-shall, on convic- 
 tion, be punished by fine, in a sum not. exceeding one ttiousand 'dollars, or by imprisonment 
 in a county jail not exceeding one year. ' ; , - - ','.''• 
 
 Whenever a complaint shall be- made to the 'attorney-general, accompanied by satisfactory" 
 information that any of the provisions-pf the two last preceding sections have been violated 
 by an inspector, -or .by. an officer of. either of the prisons, it Shall be'his duty to cause the. of- 
 fender to be prosecuted, and any indictment for such an Offence inay be'.'found or tried in ahy 
 county in which the offence was committed, or in;ah adjoining county. ' 
 
 Whenever the inspector shall direct a contract to-be made for the labor of convicts, at least 
 two montbs'notico of tha-time and place of letting every contract, 'shall be giyen in the pa- 
 per in which legal notiees are required by law to be published in tile city ."of Albany, arid in' 
 one newspaper printed in each city in this state,' which notieeshah" specify' the J particular 
 branch of business in which the Convicts are tote employed, the length of time for -which 
 ttrair' services are to be let, not exceeding five years, and the number of cohvicts to which 
 the contracts are to be limited. •-' 
 
 The convicts in eacil prison shall be. supplied with provisto'ns by contract, to be made by 
 the agent under the'diceetidn of the inspectors, with- such person,' and for such "a term -not 
 exceeding one year as- the ^inspectors may determine to be most advantageous to tlw state, 
 at a fixed price per day for each convict, or.they may at their Option require the 'agent of the' 
 prison to. furnish the rations by purchase. . - ."' 
 
 The articles of food, arid the quantities of each kincTshall be.prescribed try' the inspectors 
 and inserted in the contract; and so many, rations sbaU"6a. delivered at the' prison daily, or 
 f ich other times as may ho .agreed 'on, as -there are convicts confined therein. , 
 
 For trielpurpose of ascertaining who Will furnish, supplies on the lowest terms, the agent 
 shall cause a notice to be published in a newspaper printed in the county in which the pri- 
 
 n 'a situated -and in such other newspapers and fdr such time as the inspectors shall direct, 
 tating the-particular supplies wanted,- the maimer in. which they are to bo delivered, and 
 the time .during which proposals will be received by such agent, 'for furnishing the same., 
 
 l The -proposals to be. offered pursuant, to suoh notice, shall- specify the lowest price per ra- 
 f ' dav and the contracts shall be "made with those persons whose terms shall be most 
 advantageous to the stats, and who shall give satisfactory security for the performance of 
 thoir contracts, unless the inspectors shall deem it expedient to decline all proposals and ad- 
 vertise anew. . 
 
IMPRISONMENT. 204 — 18 
 
 All contracts to be made under this article shall be reduced to writing and signed by the 
 rarties; a duplicate so signed of every such contract shall bo filed with the' clerk of the pri- 
 son, and a copy thereof shall be delivered to the inspector. 
 
 No inspector, agent or other officer or person employed at either of the prisons, shall be 
 directly or indirectly interested in any contract, purchase or sale, for, by, or on account of 
 such prison, under the penalty of two hundred and fifty dollars. 
 
 All male convicts sentenced in the first and second judicial districts to an imprisonment 
 in a state prison, shall be confined in the state prison at Sing Sing, and all so sentenced in 
 the fifth, sixth, seventh and eighth judicial districts, in the state prison at Auburn, and all 
 so sentenced in the other judicial districts of the state, in the Clinton state prison ; but 
 whenever it shall appear- to the inspectors that eijher prison has, or is likely to have more 
 convicts than there are cells therein, they may by warrant, order the agent of such prison 
 to transport such a number of convicts therefrom to one- or each of the other prisons as the 
 relief of the prison so overstocked may require ; and such warrants may be renewed by 
 them so often as the necessity may exist. 
 
 All male convicts sentenced in the third and fourth judicial districts to an imprisonment 
 in a state prison, shall be confined in the state prisons at Auburn or Sing Sing, in the dis- 
 cretion of the court sentencing such convicts, except such counties in the fourth judicial dis- 
 trict as may be designated by the inspectors of the state prisons ; such counties designated 
 shall epntinue to send the male convicts so sentenced to the Clinton state prison. 1849, ch. 
 141, § 2. 
 
 All female convicts sentenced in any county in the state to imprisonment in a state prisoni 
 shall be confined in the female convict prison at Sing Sing. 
 
 Whenever any convict shall be delivered to the warden of the state prison, the officer 
 having such convict in his cbarge.shall deliver to such warden the certified copy of the sen- 
 tence received by such officer from the clerk of the court by which suclr convict shall have 
 been sentenced, and to take from the warden a certificate of the delivery of such convict. 
 
 "When in the opinion of the inspectors of state prisons it shall appear that there is a greiter 
 number of convicts iii any of the state prisons of this state, than can well be accommodated 
 therein, or that such convicts can not be employed profitably to the state, then the inspect- 
 ors of state prisons may cause the removal of as many of such convicts to any other state 
 prison in this state as they shall deem proper; but the inspectors shall not reduce the num- 
 ber of convicts in any one prison of the state below one hundred. [1849, ch. 132, § 1.] 
 
 All necessary expenses of such removal of convicts shall be deemed a part of the inci- 
 dental expenses of the prison they shall be removed from. [1849, ch. 132, § 2.] 
 
 The agents of each state prison shall pay to the sheriffs or their deputies for transporting 
 convicts to the prison, the fees to which such sheriffs or their deputies shall by law be en- 
 titled, provided there shall be funds belonging to such prison sufficient to warrant such ex- 
 penditure and meet the current demands for its support ; if not, the agent shall so certify, 
 and in that case, such fees shall be .paid from the treasury upon. the warrant of the comp- 
 troller. 
 
 Whenever a removal of convicts from one prison to another shall be ordered, the warden 
 shall cause the convicts so to be Temoved to be sufficiently chained in pairs, and transported 
 to the prison to v which they shall be sent, and shall deliver such convicts, with the certified 
 copies of their sentences to the warden of the prison to which they shall be removed, the 
 warden of which prison shall receive and keep them according to their sentences, as if they 
 had been originally committed to such prison. 
 
 The persons so employed to conduct such convicts, shall prohibit all intercourse between 
 them and other persons, and may inflict any reasonable and necessary correction upon the 
 convicts for disobedience or misconduct in any respect. 
 
 The expenses of sustaining such convicts while traveling, with all other expenses neces- 
 sarily incurred in their removal, shall be audited by the comptroller, and paid by the agent 
 of the prison whence the prisoner shall.be removed, out of any moneys in his hands belong- 
 ing to the state. 
 
 The agent of each, prison, whenever the inspectors shall so direct by a warrant under their 
 
 84 
 
204 — 19 EXECUTION. 
 
 hands, shall convey any convicts who shall be under the age of seventeen years, to the houBe 
 of refuge in the city of New York, who shall there be confined according to th'emiles and 
 regulations of the said house of refuge, the expenses of such removal shall be the same as 
 allowed to sheriffs for like services, and a charge upon such prison as a part of its ordinary 
 expenses, to be certified by the inspector. 
 
 The expenses of such removal shall be first paid out of any funds of the prison not oth- 
 erwise appropriated, and shall be certified by the agent; it shall alsp be the duty of the 
 agent of the prison to make out a certificate o.f such expenses, and transmit the same or a 
 counterpart thereof, to the sheriff in each county in which any such convicts were sentenced ; 
 the sheriffs receiving such certificate shall present the same to the board of supervisors of 
 the county, at the first annual meeting thereafter. 
 
 The board of supervisors shall raise the amount specified in such certificate, as a county 
 charge, and the treasurer of the county, within ten days after receiving the amount, shall 
 remit the same to the agent of the prison. 
 
 All convicts under the age of seventeen years who shall -be confined in the Auburn or 
 Clinton prisons, and who shall hereafter be ordered by the inspectors of state prisons to be 
 removed to a House of Refuge, shall be removed to said '• "Western House of Refuge " in the 
 city of Rochester under the same regulations and conditions as is contained in the ninety- 
 first, ninety -second, and ninety-third sections of the act entitled "An act for the better reg- 
 ulation of the county and state prisons of this state, and consolidating and amending the ex- 
 isting laws in relation thereto," passed December 14, 1847. 
 
 In ease any pestilence or contagious disease should break out among the convicts in either 
 of the state prisons, or in the vicinity of such prisons, the inspectors may cause the convicts 
 confined in such prison, or aDy of them; to be removed to some suitable place of security 
 where such of them as may be sick shall receive all necessary care and medical assistance ; 
 such convicts shall be returned as soon as may be to the state prison from which they were . 
 taken, to be confined therein according to their respective sentences. 
 
 Whenever by reason of any siate prison or any building contiguous to such prison being 
 on fire, there shall be reason to apprehend that the convicts may be injured or endangered 
 by such fire, or may escape, it shall be the duty of the warden to remove such convicts to 
 some safe and convenient place and there confine them until the necessity of such removal 
 shall have ceased. 
 
 "Whenever the warden, physician or chaplain of a state prison, shall duly report to any of 
 the inspectors of state prisons, that any convict confined therein is so far insane as to render 
 him dangerous, or an improper subject of prison discipline, it shall be the duty of such 
 inspector fully to investigate the case, and take the testimony of at least two physicians, and 
 of such other witness as the said inspector may deem proper as to the fact of insanity,. and 
 if such inspector shall after such investigation be satisfied that such convict is so far insane 
 as to be an improper subject of prison discipline, he may make an order for his removal to 
 and confinement-in the state lunatic asylum, and it shall thereupon be the duty of the war- 
 den to remove such convict to the said asylum, and the officer having charge of such asylum 
 shall receive such convict and retain him at the expense of the state, so long as he shall 
 continue insane, or until the superintendent of the asylum shall certify and report to the 
 warden of the prison, that the convict so sent to the asylum is not insane, or that such con- 
 vict has so far recovered, that he is in the opinion of the superintendent of the said asylum 
 not dangerous, and not an improper subject of prison discipline. 
 
 If such insane person shall recover from his insanity before the expiration of the term for 
 which he was sentenced, the officer having the principal charge of the asylum' shall give 
 notice of such recovery to the agent of the prison from which such convict was sent, as soon 
 as in his judgment such convict may bo safely removed ; and it shall then be the duty of 
 the agent to cause the convict to be returned to such prison. 
 
 "Whenever the warden of a prison shall have reason to believe that any convict in the 
 prison was insane at the time he committed the offence for which he was sentenced, such 
 warden shall communicate in writing to. the governor his reason for such opinion, and shall 
 
IMPRISONMENT. 204—20 
 
 refer the governor to all the sources of information with which he may be acquainted, in 
 relation to the insanity of such convict. 
 
 When any convict sent to the state lunatic asylum under and by virtue of the provisions 
 of this act, shall have remained in the asylum until the term of his sentence has expired, the 
 managers of said asylum may cause such insane convict to be removed at the expense of the 
 state from the asylum to the- county of which he is a resident, to be placed under the care 
 and charge of the superintendents of the poor of such county, in case the superintendent of 
 the asylum shall certify that such insane convict will not be benefitted by longer remaining 
 in the asylum, and that he can probably be mads comfortable in the. county poor house. 
 The managers of said asylum shall be authorized to give at the expense of the state, to any 
 patient sent to 'the asylum under the provisions of. this act, and who shall after the expira- 
 tion of the term of his. sentence, be discharged from the asylum recovered, such sum not 
 exceeding ten dollars, as will defray his necessary travelling expenses from the asylum to 
 the county in which he- last resided. 
 
 The preceding six sections shall all be construed to apply to the convicts in the female 
 convict prison at Sing Sing. 
 
 The expense of removing insane convicts to the lunatic asylum, and returning them to the 
 prison from which they were sent, shall be paid by the agent of said prison, out of any funds 
 belonging to the prison, in his hands. 
 
 Whenever a convict shall die in any state prison, it shall-be the duty of the inspector 
 having charge of the prison and of the warden, physician and chaplain of the prison, if they 
 or either of them' shall have reason to believe that the death of the convict arose from any 
 other than ordinary sickness, to call upon the coroner having jurisdiction, to hold an inquest 
 upon the body of such deceased convict. 
 
 All convicts in a state prison other than such as are confined in solitude, shall be kept 
 constantly employed at hard labor during"the day time, except when incapable of laboring 
 by reason of sickness or ^odily infirmity. 
 
 Whenever there shall be a sufficient number of- cells in the prison, it shall be the. duty of 
 the warden to keep each convict single in their cell at night, and also in the day time when 
 not employed. ■ _ , 
 
 The clothing and bedding, of the convicts shall be of coarse materials, and shall be manu- 
 factured, as far as practicable, in the prison ; they shall be supplied with a sufficient quan- 
 tity of inferior but wholesome food. 
 
 When several convicts-combined or any single-convict shall offer violence to any officer 
 of the state prison or to any other, convict, or' do or attempt to do any injury to the building 
 or any work shop or to any appurtenances thereof, or shall attempt to escape or shall resist 
 or disobey any lawful command, the officers of the prison shall use all suitable means to 
 defend themselves, to enforce the observance of discipline, to secure the persons of the 
 offenders and to prevent any such attempt or escape. 
 
 No person not authorized by law or by a written permission from an inspector, shall visit 
 any state prison, or communicate with any convict therein without the consent of the war- 
 den, nor without such consent shall any person bring into or convey out of a state prison 
 any letter or writing to or from any convict, nor shall any letter or writing be delivered to 
 a convict, or if written by a convict, be sent from the prison until the same be examined 
 and read by the warden, or by some other officer of the prison duly authorized by the war- 
 den : Whoever shall violate this provision- shall be deemed guilty of a misdemeanor. 
 
 No keeper in any state prison shall inflict any blows whatever upon any convict, unless 
 in self defence or to suppress a revolt or insurrection. If in the opinion of the warden of 
 such prison, it shall be deemed necessary, in any case to inflict unusual punishment in order 
 to. produce the entire submission or- obedience of any convict,- it shall be the duty of such 
 warden to confine such convict immediately in a cell, upon a short allowance, and to retain, 
 him therein until he shall be reduced to submission and obedience. . The short allowance to 
 each convict so confined shall be •prescribed by the physician, whose duty it shall be to visit 
 such convict and examine daily into the state of his health, until the convict be released 
 from solitary confinement and returned to his labor. 
 
204 — 21 EXECUTION. 
 
 "Whenever any conviot confined in a state prison shall escape therefrom, it shall be the 
 duty of the warden of the prison to take all proper measures' .for the apprehension of the 
 convict so escaped, and in his discretion he may offer a reward not exceeding fifty dollars 
 for the apprehension and delivery of such conviet ; with the consent of the inspector having 
 charge of the prison, such reward may be increased to a sum not exceeding two hundred 
 and fifty dollars. 
 
 All suitable rewards and other sums of money necessarily paid for advertising and appre- 
 hending any conviet who may escape from a state prison, shall be paid by the agent out of 
 tho funds of the prison. 
 
 The moneys which may from time to time be in the hands of the agent of the Sing Sing 
 prison, and which are not required for the current expenses of the prison, shall be paid into 
 the treasury of this state, and the comptroller shall keep an account with the prison in which 
 the sums so paid into the treasury, with the annual interest thereon, shall be credited to the 
 prison ; the sums thus credited shall be set apart for the use of the prison, and whenever the 
 same may be required for the ordinary expenses of the prison, or for any expenses autho- 
 rized by law connected with the prison, they may be drawn on the treasnry by the agent of 
 the prison on the written direction of the inspectors; all sums thus drawn from the treasury 
 shall be charged to the prison in the account kept by the comptroller. 
 
 For the safety of the Sing Sing state prison a military company shall continue to be or- 
 ganized in the village of Sing Sing; and for the safety of the Auburn state prison, a similar 
 company shall continue to be organized in 'the village of Auburn. 
 
 Each of the said companies shall be formed from persons liable to militia duty residing hi 
 the vicinity of the prison to which it is attached, and shall consist of one captain, one first 
 and second lieutenant, four sergeants, four corporals, two drummers, two fifers and forty-five 
 privates, who shall from time to time, as may be necessary, receive arms, accoutrements and 
 ammunition from the stale arsenal at\Albany,upon the order of the agent of the prison. 
 
 The arms, accoutrements and ammunition received by the members of each company shall 
 be kept by them in good nrderfor their use when called upon in defence of the prison, and 
 whenever such arms, accoutrements and ammunition shall be delivered, the person receiv- 
 ing the same shall execute a precept therefor, stating the purpose to which the same are to 
 be applied. • . ■ 
 
 Each of said companies shall always he ready for immediate service and shall repair with 
 their arms on the first alarm or notice from the warden or principal officer of the prison, to 
 the prison, and there aid and assist under his direction, in defence of the prison and in pre- 
 venting the pscape of the convicts, or the execution of any injury threatened or premedita- 
 ted by them, and shall be under his sole control. 
 
 Each of said companies shall be formed and organized by the commander-in-chief, and the 
 officers thereof designated, appointed and commissioned as in the case of uniform companies 
 and the persons comjoiing said companies.shall be exempt from all other militia duty, and 
 from serving on any grand or petit jury so long as they shall respectively continue to be 
 members of such companies. '> 
 
 No person duly enlisted into said companies, shall, without the written consent of the 
 commanding officers of^the company to which he belongs, leave the same to serve as fire- 
 man in any fire company, or to enlist into any other company of militia, except in case of a 
 removal from out of the beat of said company. 
 • The said, companies shall respectively be called and known, the first by the name of the 
 Sine Sine Guards, and the other by the name of the Auburn Guards, and shall be ordered 
 nut for drill and exercise by the commanding officer thereof not less than six nor more than 
 ten times in any one year. 
 
 Whenever the office of captain or subaltern in either of the said companies shall be vacant 
 
 the same shall be filled •in the manner now provided by law for filling vacancies in the com- 
 
 ' a of the militia of this state, except that the wardens of the prison to which the com- 
 
 ' which any such vacancy should happen shall be attached, shall cause the necessary 
 
 notices of an election to fill vacancies, to be served on the members of the companies. 
 
 The commanding officer of each company shall return as delinquents, to the inspector hav- 
 
IMPRISONMENT. 204—22 
 
 ing charge of the prison, any non-commissioned officer, musician or private of the company, 
 who shall not appear on -parade' in the complete uniform of tlie company, or who shall be 
 guilty of any neglect of duty or improper conduct on parade. 
 
 ' The inspectors of the prison may summon any person so returned as a delinquent to ap- 
 pear before them at such time and place as they shall appoint, to answer to such alleged de- 
 linquency, and upon proof of such summons having been served, may proceed at the time 
 and place therein specified, to impose upon such delinquent such fine not exceeding five dol- 
 lars for each offence, as in their judgment tile case may require. 
 
 The president of the board of inspectors shall make out his warrant for the collection of 
 suoh fines, in like manner and with like effect as a president of a court martial; the warrant 
 shall be directed to any constable in the county in which the fine shall be imposed, com- 
 mapriing him to levy and collect such fine; and such constable shall collect such fine in like 
 manner as other militia fines are now directed by law to be collected. 
 
 All moneys collected by virtue of such warrant shall be paid over to the commanding offi- 
 cer of the company to which the delinquent, upon whom such fines may be imposed shall 
 belong, and may be disposed of by a vote of the company for any beneficial purpose that the 
 company may direct: 
 
 if any officer of either of the said companies shall neglect to perform any duty enjoined 
 upon htm by law, it shall be the duty of the commander-in-chief, upon such neglect being 
 reported by the inspectors, to dismiss such officer from the company ; and if any non-com- 
 missioned officer or private shall refuse or neglect to perform his duties, such delinquent, in 
 addition to the fine herein before prescribed, may be discharged by the commanding officer 
 of the company to which he shall belong, and another person may be enrolled in his stead. 
 
 Every non-commissioned officer, musician or private of either of said companies who shall 
 serve faithfully therein for the period of ten years, shall hereafter be exempt from military 
 duty in this state except in cases of insurrection or invasion. 
 
 It shall be the duty of the inspectors to keep in repair the armories hereafter erected or 
 used at Sing Sing or Auburn for the use and convenience of the company of guards attached 
 to the prison, and the expense attending-such repairs shall be paid out of the funds of the 
 prison. 
 
 There shall continue to be organized in the vicinity of the prison at Auburn, one fire com- 
 pany, to consist of one foreman and thirty-six men residing in that vicinity. 
 
 It shall be the duty of the said company, on the first alarm or notice of a fire in the pri- 
 son, or in any of the adjacent buildings, to repair to the prison, and there to use and man- 
 age, under the direction of the warden, the engine belonging to the prison, and to aid by all 
 means in their power, in the preservation of the prison, and of the persons, confined therein. 
 
 It shall also be the duty of the said company to attend to the said engine, and to exercise 
 and try it at such stated times as the inspectors or agent shall prescribe, and the inspectors 
 may in their discretion, remove any member of the company and appoint another person in 
 his stead. 
 
 The members of the said company shall upon the certificate of the board of inspectors be 
 exempt' from serving on juries, and from serving in the militia, except in cases of invasion 
 or insurrection, so long as' they shall continue such members. • 
 
 The members of the company, after a service of nine years therein, shall be forever ex- 
 empt from militia duty, except in time of war or insurrection, and shall be entitled to a dis- 
 charge from the company. 
 
 Whenever a convict shall die in the Sing Sing prison, it shall be the duty of the warden 
 unless the body of such convict be taken away for interment by the relatives or friends of 
 the deceased within twenty-four hours after his death, to' deliver on demand, such dead body 
 to the agent of the college of physicians and surgeons in the city of New York, or to the 
 agent of the medical faculty of the university of the city of New York, so that one half of 
 - the number of such dead bodies shall be delivered to each institution. 
 
 It shall in like manner be the duty of the warden of the Auburn state prison, whenever a 
 convict shall die in that prison, whose body shall not be taken away for interment by his re- 
 latives or friends within twenty-four hours after his death, to deliver, on demand, such dead 
 
204—23 EXECUTION. 
 
 body to the agent of the medical faculty of the university of Biiffalo, or to the agent of the 
 medical faculty of Geneva college, so that one half of the number, of such dead bodies shall 
 be delivered to each institution. 
 
 All children that have been or shall be born of female convicts in thefemale convict pri- 
 son at Sing Sing, may by an order of the agent having at the time charge of the prison, he 
 sent to the poor house in the county of Westchester, to be there supported upon such terms" 
 as may be agreed upon between the agent and the superintendents Of the poor of the said 
 coun ty, and all expenses incurred thereby shall be paid by the agent of the prison out of the 
 funds thereof. 
 
 The agent of the Clinton prison is authorized to draw from time to time from the state 
 arsenal in the city of Albany, such arms and ammunitions -as he may deem. necessary for the 
 use of the keepers and guards of the prison. 
 
 The said agent is authorized to sell and dispose of ore that may be prepared by the con- 
 victs at the state prison for cash only, and not on credit ; the proceeds of such sales shall be 
 applied to the support of the prison. 
 
 The agent of said prison is authorized to appropriate to the use thereof, all waters upon 
 the tract purchased for the establishment of said prison ; and any person claiming damages 
 in consequence of such appropriation of water, shall, within six months thereafter, make ap- 
 plication to the county judge of the county of Clinton, who shall appoint three commission- 
 ers not interested in lands through which the stream or streams of water so appropriated 
 may havo previously run, who shall personally examine the lands of the applicant and make 
 an estimate of the damages he has sustained by reason of such appropriation of water, which 
 estimate shall be reduced to writing, subscribed and sworn to by said commissioners, and 
 then transmitted to the comptroller of this state, who shall thereupon pay the estimated 
 damages of the applicant out of the funds appropriated for said prison. 
 
 All uncultivated lands belonging to the state of New York, or which may hereafter be- 
 come the property of said state, and which shall be situated within twenty miles of the said 
 prison, shall be withdrawn from sale-and shall be retained by the state for the purpose of 
 furnishing fuel for the manufacture of iron by the convicts in the said prison. 
 
 All necessary -clothing for the use of the convicts-in the Clinton prison shall be manufac- 
 tured by the convicts in" the Auburn and Sing Sing prisons, whenever a written order for 
 that purpose shall be made by the inspectors and be delivered to the respective . agents of 
 those prisons. 
 
 The Sing Sing and Auburn prisons shall respectively have credit on thebooks of the comp- 
 troller for the. value of any cloth or clothing manufactured in such prisons in conformity to 
 law for the use of the Clinton prison, oh making specific returns thereof, verified as to quan- 
 tity and value by the affidavit of the agent of- the prison manufacturing the same. The sum 
 so to be credited shall be paid by the treasurer on the warrant of the comptroller, out of any 
 moneys in the treasury not otherwise appropriated, to the order of the inspectors, whenever 
 such payment shall become necessary to defray the expenses of the prison entitled to the 
 
 credit. 
 
 The agent of the Clinton prison shall not deposit or pledge any article produced by the 
 labor of the convicts, tfy way of security, for moneys borrowed on the. credit thereof or oth- 
 erwise and all articles purchased by him for the use of the prison or to be employed in eon- 
 ducting any of its operations, shall be purchased, for cash and not upon credit, unless the in- 
 spector having charge of the-prison shall otherwise direct. The agent shall make sale of 
 the articles produced by the labor of the convicts, in such manner and on such terms as shall 
 be prescribed by the rules and regulations established from time to time by the board of in- 
 spectors. 
 
 The said agent shall, under the direction of the comptroller, deposit to the credit of the 
 state all moneys he may receive from the sale of any manufactures produced in the said pri- 
 son whenever the sanae shall exceed the 9um of- one thousand dollars, and shall not be re- 
 quired within fifteen days after the receipt thereof to defray the expenses of the prison. 
 
 The agent of the Sing Sing prison shall Continue, to. have charge of the farm and premises 
 on which the samo is situated, and it shall be his duty to rent or otherwise use or improve 
 
IMPRISONMENT. 204 — 24 
 
 the same to the best ad-vantage for the benefit of the state, but no lease shall be made by 
 him for a longer term than three years. 
 
 No license shall hereafter be granted lor the sale of intoxicating liquors within three miles 
 of the. Clinton prison ; and every person who shall, directly or indirectly sell or dispose of 
 any alcoholic drinks within the distance of three miles from said prison, shall, upon convic- 
 tion thereof; before any justice of the peace of the county of Clinton, be subject to a penalty 
 of fifty dollars ; one half thgreof to be paid to the person prosecuting for the same, and the 
 other half to be paid'to the overseers'of the poor of the town in which said offence shall 
 have been committed. 
 
 It shall be the duty of the respective keepers of each of the county and state prisons, to 
 receive into the said prisons and safely to keep therein, subject to the discipline of such pri- 
 son, any criminal convicted of any offence against the United States, sentenced to imprison- 
 ment therein, by any court of the United States, sitting within this state, until such sentence 
 be executed; or until such convict shall be discharged by due course of law;- the United 
 States supporting such convict, and paying the expenses attendant upon the execution of 
 such sentence. 
 
 In case any such prisoner shall escape, or attempt to escape out of the custody of any 
 keeper to whom such prisoner may "have been so committed, he shall be liable to the like 
 punishment as if he had been committed by virtue of a commitment or conviction under the 
 authority of this state. 
 
 The keeper of any prison to whom any such prisoner may have been committed, shall be 
 liable to the like penalties and punisjiment, for any neglect or violation of duty in respect to 
 the custody of such prisoner, as if such prisoner had been committed by virtue of & com- 
 mitment or conviction under the authority of this state. 
 
 The keeper of every county or Mate prison, and all persons employed in any such prison, 
 shall be exempted during their continuance in office, from serving on juries and from military 
 duty. 
 
 No. female confined in any prison shall be punished by whipping, for any misconduct in 
 such prison. 
 
 "Whenever any convict confined in any county or state prison shall be considered an im- 
 portant witness in behalf of the people of this state, upon any criminal prosecution against 
 any other convict, by the district "attorney conducting the same, it shall be the duty of any 
 officer authorized by law to allow writs of habeas corpus, upon the affidavit of such district 
 attorney, to grant a habeas corpus for the purpose of bringing such prisoner before the pro- 
 per court to testify upon such prosecution. 
 
 Such convict may be examined on such trial, and shall be considered a competent witness 
 against any fellow prisoner, for any offence actually committed whilst in prison, and whilst 
 the witness so offered shall have been cbnfined in the prison in which such offence shall have 
 been committed. 
 
 No spirituous or fermented liquors shall, on any pretence whatever, be sold within any 
 county or state prison, -nor shall any kind of spirituous or fermented liquor be brought into 
 any county prison for the use of any convict confined therein, without «• written permit, 
 signed by the physician ' to such prison, specifying the quantity and quality of the liquor 
 which may be furnished to any convict, the name of the prisoner for whom, and the time 
 when the same. may be furnished, except for the ordinary hospital supply of the state pri- 
 sons, which permit shall be delivered to and kept by the keeper of the prison. 
 
 No permit shall be granted, unless it shall Satisfactorily appear to such physician that the 
 liquor allowed to be furnished is necessary for the health of the prisoner for whose use it is. 
 permitted, which shall be stated in such permit. 
 
 Any. person who shall sell, or bring into any of said prisons, any spirituous or fermented 
 liquor contrary to the foregoing provisions, and every keeper or other officer employed in or 
 about any such prison, who shall suffer any spirituous or other liquor' to be sold or used 
 therein contrary to the foregoing provisions, shall be deemed guilty of a misdemeanor, and 
 on conviction thereof, shall be subject to imprisonment, not exceeding one year, or to a fine 
 
204 — 25 EXECUTION. 
 
 not exceeding two hundred and fifty dollars, or both, in -the discretion of the court ; and 
 every sheriff or other officer so convicted, shall forfeit his office. 
 
 Whenever it shall appear to the court in which an indictment is pending, and to be tried 
 against any person for any offence committed by him while imprisoned in any county prison 
 or any one of the state prisons, on the person of any other individual confined in such jail or 
 state prison, that any other person confined in any county prison, or in any of the state 
 prisons, is an important witness in behalf of the person so indicted, such court is hereby 
 authorized to grant a writ of habeas corpus for the purpose of bringing such prisoner before 
 such court to testify upon the trial of such indictment, in behalf of the party making the 
 application. 
 
 Every person when brought up on such writ may be examined as a witness on such trial, 
 and shall be competent to testify thereon in behalf of the defendant or the people, notwith- 
 standing Ills conviction and imprisonment. 
 
 The court in which any indictment is pending against any person imprisoned on .convic- 
 tion of a crime in any county jail or state prison, for an offence committed during such 
 imprisonment, is hereby authorized to issue a writ of habeas corpus for the purpose of bring- 
 ing the individual so indicted before the court for arraignment or trial on such indictment. 
 
 The court in which any indictment is pending for a felony against any person imprisoned 
 on conviction of a crime in any county jail or state prison, is hereby authorized to issue a 
 habeas corpus for the purpose of bringing the individual so indicted before such court for 
 arraignment or trial, on such indictment. 
 
 The following persons shall be authorized to .visit at pleasure all county and state prisons : 
 The governor and lieutenant governor, secretary of state, comptroller and attorney-general, 
 members of the legislature, judges of the court of appeals,- supreme court and county judges, 
 district attorneys and every minister of the gospel having charge" of a congregation in the 
 town wherein any such prison is situated. No other person not otherwise authorized by 
 law shall be permitted to enter the rooms of a county prison in which convicts are con- 
 fined, unless under such regulations as the sheriff of the county shall prescribe, nor to enter 
 a state prison except under such regulations as the inspectors shall prescribe. 
 
 Prison Regulations- in Massachusetts. — (Rev. Stat of MasS. ch. 144.) 
 
 The state prison in Charlestown, in the county" of Middlesex, shall be the general peni- 
 tentiary and' prison of the Commonwealth, for the reformation as well as for the punishment 
 of offenders; in which shall be securely confined, employed in hard labor, and governed in 
 the manner hereafter directed, all offenders, who have been convicted and sentenced, accord- 
 ing to law, to the punishment of solitary imprisonment and confinement therein at hard labor. 
 
 The organization of the-state prison shall include three inspectors, one warden, one deputy 
 warden one chaplain, one physician and surgeon, one clerk, one superintendent of the stone 
 department, who shall also be an overseer, eight turnkeys,, who shall be overseers, and ten 
 watchmen. 
 
 The inspectors shall be appointed by the governor, with the advice and consent of the 
 council and one of them shall be designated in his commission as chairman ; they shall hold 
 their offices during the pleasure of the executive, but not more than four years under one ap- 
 pointment. 
 
 The warden, the chaplain, and the physician and surgeon, shall be appointed by the gov- 
 ernor with the advice and consent of the council, and commissioned to hold their offices du- 
 ring the pleasure of the executive. 
 
 The deputy warden, and all other officers of the prison, shall be appointed by the warden, 
 subject to the approval of the inspectors, and shall hold their offices during the pleasure of 
 the warden and inspectors; but if the warden shall think any such officer ought. to be re- 
 moved and the inspectors shall not consent thereto, the warden may appeal to the governor 
 and council who, after reasonable notice to the inspectors, may make such removal. 
 
 The warden shall report immediately to the inspectors all appointments of officers which 
 he shall make • he shall, from time to time, propose in writing, to the inspectors, such altera- 
 
imprisonment;. 204:— 26 
 
 tions as he shall think advisable in the rules and regulations for the direction of the officers, 
 and for the government of the prison,, and with the. advice and consent of the inspectors, he 
 may appoint-two 1 * additional watchmen. ■ ■-. , . -, 
 
 •The warden and deputy warden shall reside constantly within the precincts of the prison ; 
 and neither the warden; nor -any officer appointed by the waTden and' inspectors, shall, du-. 
 ring the time of folding his ofnce.-be employed in any business for private emolument, nor 
 in any business which does not pertain to.the duties of his office. 
 
 The officers of the prison shall receive. the following salaries, to wit: each inspector; one 
 hundred dollars a year; thc-warden, fifteen hundred dollars; the deputy warden, eight hun- 
 dred dollars ; the chaplain, eight hundred dollars ; the physician and. surgeon, three hundred 
 dollars; the clerk, eight hundred ■ dollars ;■ the ■ superintendent- of the stone department, one 
 thousand dollars ; each oT the turnkeys, five hundred'dalj.ars ;. and 'each watchman shall re- 
 ceive four hundred and fifty dollars a year; .alhwhich Bums. shall be paid in quarterly pay- 
 ments,' by the -warden., out ofthe treasury, of; the prison; and shall bain full for all services; 
 and no other perquisite, reward or emolument, shhfi; be allowed to, or received by, any of 
 them,- except that the 'warden, with -the a'cLvice atf the inspectors, may allow to the superin- 
 tendent of the stone department an additional '.sum^ hpt exceeding three hundred dollars 
 a year, when it will be, in their opinion, -for.flJe interest of the Commonwealth to make -such 
 allowance, and to the overseer or turrikey^'Vho'may act as an assistant of the said superin- 
 tendent, an additional sura 'not exce'eding\6ne hundred -dollars. 
 
 The inspectors shall, from .time, to time, 'establish rules and -regulations,, consistent with 
 the laws of the Commonwealth" fc>r the direction of the.qfficers of the prison, in the discharge 
 of their duty, the government, .erapjoyment and discipline of "the convicts, and for. the cus- 
 tody and preservation' of the public property; and as soon as may be, after the establishment 
 of any such' rules and regulations by the inspectors, they shall cause authentic copies thereof 
 ' to-be laid-befbre the'governof\.and council; who may approve, annul, or modify the same; 
 and the inspectors shall cause a copy of all such rules and regulations,- as shall' have been 
 approved 'by the governor and -council, to he certified, as soon as may b6, by the clerk of the 
 prison, and delivered to the warden. 
 
 The inspectors, or one of them, shall visit the prison at least once in ea"ch week,- and it 
 shall be visited By the boajd of inspectors once a month, and oftener if they shall think ne- 
 cessary, for the purpose' of inspecting the books" and; all the concerns .of the prison, and as- 
 certaining whether the law, and' the rules and regulations relating to the prison, are 'duly 
 observed, and whether the officers are competent and faithful, and the convicts are properly 
 governed and employed. • ■ 
 
 The inspectors shall report to-the governor and council, forthwith.all violations*of law and 
 omissions of duty by the warden, chaplain, or physician- and surgeon, that shall come to their 
 knowledge; and every officer who holds his. place at the pleasure of the inspectors and war- 
 den, and- who shall be found to be unfaithful .or incompetent, shall be hy them forthwith re- 
 moved ; the said inspectors shall also on the last day of September, in eaoh year, make a de- 
 tailed report to the governor and council, Which shall containa full statement 'of all the con- 
 cerns of the prison for the year next preceding. • 
 
 .The chaplain shall perform divine servise in the chapel of the prison, instruct the convicts ' 
 in their -moral and religious duties, visit the sick on suitable occasions,- and devote his whole 
 time to the performance of the. duties of his office.. • . 
 
 The physician and surgeon shall visit the hospital of the prison, at least once in each day, 
 and as much oftener as may be. necessary, prescribe for convicts who may be sick, and- at- 
 tend to the .regimen clothing and cleanliness of such ,of them as are in the hospital; he shall 
 keep a regular journal, which shall remain at- the prison, of all admission's to the_hpspitals 
 stating the time, the nature of the disease, with his prescriptions, and the treatment of each 
 patient, and the time of his discharge "from the hospital, or of his death ; the said journal 
 shall also contain regular entries of- all orders .which shall be .given for supplies, for-the hos- 
 pital department, specifying the articles ordered ; all such orders shall be in writing, and the 
 •warden shall provide the supplies so ordered. 
 
 Whenever any convict shall complain of such illness as requires me.dioal aid, notice, thereof 
 
 85 
 
204: — 27 ■■ EXECUTION. 
 
 shajl be given to (he physician, who shall visit such' convict, and if, in the 'Opinion -of the 
 physician, the illness is such as to require bis removal to the hospital, the warden may order 
 such removal, and tlie convict shall remain in the hospital, urJtil the physician shall deter- 
 mine that he mayleave it without injury to his health:' 
 
 Before the warden enters upon the duties of his office, he shall give, bond to -the Common- 
 wealth, in the sum of twenty thousand dollars^ with sufficient sureties, to be approved by. 
 the governor and council, with condition that he shall faithfully account for all moneys placed 
 in his hands as treasurer, and perform all the. duties incumbent on -him as warden of thesaid 
 prison ; and such bond, with the approval of. the sureties indorsed thereoD, .shall be filed in 
 the'office of the treasurer. - 
 
 The warden shall have the -charge and custody of the prison, with the lands, buildings, 
 furniture, tools, implements, stock and provisions, and" every.other" species of property per- 
 taining thereto, or within the precirlcts -thereof; he shall be treasurer of the prison, andshall 
 receive and pay out all moneys, granted by the legislature for the support -thereof; and shall 
 cause to be kept, in suitable books, regular and complete accounts ofall the property, expen- 
 ses, income, business and concerns of the'establishment. 
 
 All the book's and documents, relating to the concerns of the prison, shall at all times be 
 open to the examination of-the-inspectors.' who shall, semi-annually, carefully examine the 
 said books, and compare them with the vouchers and documents relating thereto. - 
 
 The warden shall, as soon as may be, after the last day of' September, in each year, 
 cause to be madeffull and detailed accounts, to. be closed on that day, of all the disburse- 
 ments and expenses, and all the receipts and profits of the prison, accompanied by sufficient 
 vouchers ; 'which accounts, after having been examined . and approved by ).he inspectors, 
 shall be audited and settled^by the' treasurer of the Commonwealth, who shall file the same 
 in his office, for the inspection of the legislature. • ■. 
 
 All' contracts, on account of the -prison, shall be made by. the warden' in writing, and 
 when approved in writing by the inspectors, shall be binding in.law, and the' warden, pr his 
 successor, may-sue or be sued'thereon to final judgment and. execution ; ncsuch suit^shall 
 abate, by reason of the office of warden becoming vacant, but.anysuccesserof the warden, 
 •pending such suit, may take upon himself the prosecution or defence thereof, and upon -mo- 
 tion of the adverse party, and notice, he shall be required so to do. 
 
 Whenever a controversy shaltarise, respecting- any contract- made by the^wardeh.on ac: 
 count of the prison <Jr a suit shall be pending thereon, the~warden may submit the same to 
 the' final determination of arbitrators or re/ereesj"to .be, approved by the inspectors. ' 
 
 The principal articles, purchased for the use of the prison, such as the ration's, fuel, stone, 
 icon and steel, with the transportation. and truckage, shall be contracted for by the year, 
 when such contracts-can be advantageously made';- and the warden shall give previous 
 public notice," in. two- newspapers at least of the articles -wanted, t}ie quantityand quality 
 thereof the time and manner pf delivery, and the period during which proposals therefor . 
 will be' received • and such notice shall be published a sufficient time, foi the "information of 
 persons who may desire to offer proposals for,such contracts. 
 
 All such proposals shall be in writing, and sealed up, and on the day appointed, they shall 
 be opened by the warden,.in presence of the.inspectbrSj who shall cause all such offers to be 
 entered in a 'book, and 'compared-; the person offering the best terms, with satisfactory secu- 
 rity for the performance, shall' be entitled-to the contract, unless it shall appear to the war- 
 den and inspectors, that'none of the offers are so" low as the fair market price ; in that case, 
 no offer 'shall be accepted, and the warden, withthe consent of the inspectors, may advertise 
 ' as before or he may proceed to make contracts for any of the articles wanted for the 
 in the -best way he can, for the interest of the Commonwealth, without further notice. 
 ^ Every such contractor shall give bond in- a reasonable sum, with satisfactory surety or 
 reties for the performance of his contract-; no officer of the prison, shall be concerned or 
 interested; directly of indirectly, in any contract, purchase or sale, made on account- of the. 
 
 Pr The warden shall take bills of the quantity and price of supplies, furnished for the prison, 
 at the time of the delivery ; and the clerk, or such officer as the warden shall direct, shall 
 
IMPRISONMENT. 204 — 28 
 
 co*nrare the bills with tlis articles delivered ; if the ■Tjilla' are found correct, he shall enter 
 them, with the date, upon a book to be kept for that purpose ; hrlike manner, bills shall be 
 taken and entered, of all services rendered for the prison ; if any bill, for supplies or services, 
 shall.be discovered to be inqprrect, the clerk shall omit to enter it, and immediately give 
 neti'ce to the warden, that the error may be corrected. • • 
 
 All process, to be, served within tne precincts of the prison, shall be directedto, and served 
 and returned by, the' warden or his deputy ; all convicts in the .prison Shall be in the eharge 
 and Custody .of the warden, w-ho shall, govern and -employ them, in the manner prescribed 
 by law,.the rules and regulations "of the prison',and in- conformity to the respective sentences 
 under which they shall be committed. 
 
 Whenever the offiee'of rwarden shalf be vacant, or tire warden shall be absent from the 
 prison, or. unable to perform the duties of his office, the deputy warden shall have all the 
 powers, and' perform gll the duties, and .shall be subject to -all the obligations and liabilities 
 of tire warden. - . . " 
 
 If. the office of warden shall become vacant, when the governor .and council are not in 
 session, the inspectors may require the deputy warden to givea bond to the Commonwealth, 
 in the sum. of. ten thousand-dollars,- with sufficient sureties, to be by them- approved, . with 
 condition for the faithful performance 'of the duties incumbent op him as deputy warden' and 
 treasurer, until a warden shall 'be appointed ; and from the time such bond shall be approved, 
 the deputy shall receive the salary of the wafden, in flea of his former salary, so long as<be. 
 shall perform, the duties of the 1 office; if the. deputy "warden shall not give such bond, when 
 required the inspectors -may remove him from office", and appoint a warden -pro tempore, who 
 shall give such a bond as was .required of the deputy -warden, -and shall have the power and 
 authority, and perform all the duties, and receive the sala-ry.of the warden, until a 'warden 
 shall be duly appointed and enter upon the discharge' of the duties of the office. 
 
 The deputy warden, clerk, superintendent of the stone department, tire overseers and 
 watclimen, shall perform such duties, in the charge and oversight.of {he prison, the care'of 
 the property thereto belonging, and the -custody,' government, employment and discipline of 
 the convicts,' as -shall b'e required of them- by the warden, in conformity to law, and the rales , 
 and regulations of the' prison. " •- 
 
 Whenever the warden shall receive," from the. sheriff of any county, a warrant, in the 
 manner prescribed ii! theone hundred and thirty- ninth chapter, requiring him to cause afly 
 convict to be removed from the county jail to the state prison, pursuant to his sentence, ha 
 shall, by- himself, or such person as he shall appoint for that- purpose, as soon as ma^r be, 
 cause sucjrwarrant to be duly executed, according to the preeegt thereof, and he shall 
 make return of .the. manner in which he has caused, the warrant to.be executed, and shall 
 file the warrantand the return, with the transcript of the record, in his office - r he shall also 
 cause an attested copy of 'the warrant, and of his return thereo.n, to be filed in- the office of 
 the clerk from whence the same was issued ; and all sheriffs, jailers, and other officers, are 
 enjoined, if. need be, to- aid the warden, or person by him ;appointed, in the execution of 
 such warrant. . . . . -. 
 
 The warden .shall receive into the state prison all persons convicted before any court of 
 the United States, held within the district of Massachusetts, and sentence'd, by such courts 
 to the punishment of imprisonment at hard labot in the said prison, "aid he shall safely 
 keep and employ such con/icts, pursuant to their sentence; and the rules .and regulations of 
 the prison,' until such sentence shall be performed, or^the said convicts' shall be" otherwise^ 
 discharged, by due course of the law' of the United States.' ■ K ■'■ 
 
 Whenever any convict, sentenced by any' court of this Commonwealth -pr- of the. United 
 States, to be punished by imprisonment in the state prison; shall t at the time of conviction 
 and sentence, hold any. offlee, under the. constitution' or laws of this ^Commonwealth, such 
 office shall be" 1 deemed to be vacated, from the time of his commitment 'to the said prison;- 
 and if the judgment against. such- convict shall be reversed upon Writ of error, he shalf be 
 restored to his office, with all its rights and emoluments, .but if' pardoned,, he shal\ not by, 
 reason thereof b,e restored, unless it shall be so- expressly ordered by the' terms of the 
 pardon. •• - 
 
204 — 29 EXECUTION; 
 
 Every conVict, againsfwhom the punishment of solitary imprisonment shall be awarded 
 by sentence of court, or for the violation of any of the rules, and regulations of the prison, 
 shall be confined in one of the solitary cells, .and during such confinement, lie shall be fed 
 with bread and water-only, unless the physician of the jprison, sh,all certify to the warden, 
 that the health of such convict requires oth,er diet. " 
 
 All convicts, sentenced to the punishment of hard labor in the'said, prison, shall be con- 
 stantly employed for the benefit of the Commonwealth; no communication shall be allowed 
 between them and any person without theprison ; they shall -be -confined in separate cells 
 in the night time, and in the day time, all' intercourse between them shall, as far as is 'prac- 
 ticable, be prevented. . .„ > 
 
 "Whenever the warden- shall be satisfied, that any convict in the state prison has, at two 
 several times before, been sentenced toimpriBonment in the 'same prison, or in some other 
 state prison within the United States, and at; each time for more 'than One year, ha shall 
 give notice thereof to the attorney of the Cpmrrionwealth for the county, of. Suffolk, who 
 shall, by an information filed in the municipal court of the' city of. Bbston,,oi; otherwise, 
 make the same known to the judge of the said court, and thereupon, such convict shall be 
 brought before the court, by such process. 'or 'order as the judge shall direct, 'to hear and 
 answer to the said charge; if the convict, by his plea .Or answer,, shall, deny the truth of the 
 charge, the same shall be tried by a. jury, indue course of law, ^ho sball be instructed to 
 iuquire, and by their verdict to find, whether the charge in such information isvpr is not true. 
 
 If it shall appear, by confession "of the" convict, verdict of a' jury, or otherwise according to 
 law, that the charge is true, such convict Shajl be sentenced to imprisonment in the said 
 prisonfor life, or for a term, not lessthan seven years, in. addition to the sentence, on whicti^ 
 he stood committed. »• 
 
 Any- convict, .against wliom such additionaPpuiiishment may be awarded by. .the munici- 
 pal court, shall 'have the same right to appeal, as in other cases' tried 'before the said court ;. 
 but if the charge against such "convict shall not be established, as above mentioned, he shall 
 be remanded to the said prison by. the 6onrt, there to .remain in execution of his former 
 sentence.' • ■ - ', 
 
 If 'any convict, committed to the state prison finder sentence for' any. limited time, shall 
 escape therefrom, or shall attempt by violence to- escape," or. shall assault -the Warden, or 
 any inspector, or other officer or perspn employed in the government, or custody of the said 
 •prison, he shall^be punished by imprisonment in the said prison not more than ten years, in 
 addition- to his former Sentence,- .and also by solitary imprisonment not more.thari one year,, 
 to be executed forthwith,, or at any. such time Or times, .either before or at\er'the expiration 
 of any former sentence, as the court shall direct. ■ . .. '■.-.' 
 
 If any convict in the state prison, under, sentence of imprisonment for life, shall escape 
 therefrom, or shall attempt by violence to escape; or shall-.'commit any such assault;. as is 
 mentioned in the preceding section, he shall be- punished by solitary imprisonment not more 
 than one-year, to be executed at such time or times a's the. court shall direct. > 
 
 If any officer; -or other person .employed in the state prison, shall voluntarily suffer any 
 convict confined therein to escape, or shall in any' way consent to such 'escape, he shall be 
 punished by imprisonment in the said prison, .not more than twenty years. 
 
 If any officer, or person employed in th'e state prison, shall .suffer any -convict, under 
 sentence of solitary confinement, 'to be at. large, or out^of the cell assigned to -him,, or shall 
 suffer any convict, confined in said prison, to be at large out of the prison, or to-be visited, 
 conversed" with, or in any way relieved or comforted,- contrary to. tho regulations of .the 
 prison, he Shall be.punished by fine not exceeding five hundred dollars. - - 
 ' Every person who shall convey into the state- prison any disguise, instrument, tool, 
 weapon, or other thing, adapted or useful to aid any convict in making his escape therefrom, 
 with intent to facilitate the escape of any convict there lawfully- committed or detained, or 
 Who shall, by, any means, aid any convict in his- endeavor to escape, whether such escape 
 be effected or attempted, or not, and every person, who shall foroibly or fraudulently rescue, 
 or attempt to rescue, any conviet held in custody by any officer or other person, under sen- 
 
IMPRISONMENT. 201—30 
 
 terice of imprisonment in ' the state prison, shall be punished by imprisonment in the said 
 prison, not. mora than ten years, or by fine not 'exceeding fi^e hundred dollars. 
 
 If any officer, contractor, teamster, truckman, boatman, or other person, who is employed 
 in or about the .state prison^ or 'its dependencies,- shall deliver or procure to be delivered, or 
 shall have in his possession, with. intent to deliver,' to any ccmvict confined in the prison, or 
 shall deposit or conceal, in 6r .about the ^said prison or the dependencies thereof, or in any 
 boat, carriage, or other vehicle gomg .-into. the .premises belonging to the said prison, any 
 article oi> thing whatever, with intent that any convict confined in the prison should obtain 
 or receive the same, without the knowledge and permission of the warden or an inspector 
 of tlie prison, he shall be punished by Imprisonment in- the state prison or the county jail, 
 not more than 'two years, or by fine not exceeding five hundred dollars. 
 
 The courts and magistrates of the counties of Suffolk ,and Middlesex shall have concur- 
 rent jurisdiction of all crimes and offences, committed within the state prison, and the pre- 
 cincts thereof; and. for the. purpose of- all judicial proceedings, the said prison, and the 'pre- 
 cincts thereof, shall be deemed in law to be w'ithin'['{md] a part of the/County of Suffolk, as 
 ■well as the county of Middlesex, 
 
 The. daily- sustenance of the-convicts, hot in solitary confinement, nor in the hospital, shall 
 consist ofyhe following ratUms,'to wit; 6ue pourirl of number one beef, ortwelve ounees of 
 number one pork, ten -.ounces -of rye meal, and ten ounces of Indian meal, and three quar- 
 ters of a grill" of molasses, fpr each prisoner, to which there shall be added, for every hundred 
 rations, .two bushels and a half of potatoes, or, at the discretion of the warden, the value 
 thereof ill peas, beans, or -other vegetables ; two quarts of- vinegar, four quarts of salt, two 
 ounees of, black pepper, two "quarts of rye or barley, to be furnished to the convicts in a 
 warm drink, at their meals, in 'the mornipg and evening, and. for six months, during the 
 warmest .season, one gallon of molasses, and twelve ounces of hops! 
 
 •'When the warden shall be of opinion' that' the rations above, mentioned are insufficient for 
 any of the convicts, he, may make an addition, thereto", in favor of such convicts, not exceed- 
 ing two ounces of beef or pork, ar the value -thereof in meal,- rice, ar vegetables, for each 
 convict; he may also furnish fish- One day in a week, instead of beef, for the rations of the 
 convicts, wften- their health would, in his opinion^be thereby promoted ; -and may, with the 
 assent of the inspectors, substitute fresh beef, for the rations of salt beef, and wheat flour-or 
 [for] rye meal and Indian, meal - ,' for a" part pf the 1 time not exceeding' three months in the 
 year : bo snuff, nor. tobacco,' nor any other article of subsistence other than those before 
 mentioned, either for food, pr-for drink, except water, .'shall be allowed to any. convict : the 
 beverage to be made fWm the^rye or barley, and the beer to be made from the molasses and 
 hops, 'as before provided, shall be distributed among the convict's, 'at the discretion of the 
 warden,- asthe- condition of each of them may require'. 
 
 The subsistence and diet^of the convicts, in the hospital, shall be under the'direction of 
 the physician ; but for all articles of comfort or indulgence, not-included in his regular hos- 
 pital rations, hisorder therefor shall be in writing; and for a term not exceeding. one week. 
 Each convict shall be allowed, fdr his yearly clothmg, one thick- jacket, one pair of thick 
 - pantaloons, one thin jacket, and one pair- of thin pantaloons, three shirts, two blankets, 'two 
 pairs of socks,, two pairs of shoes, all which articles shall be of a coarse kind, but strong^ 
 substantial and comfortable ; and when it sh'all be necessary, in the opinion of the warden ' 
 in order to prevent suffering, he may allow the convicts caps,, beds, and beddingj and may. 
 increase or diminish the y,early allowance of olothiiig, to individuals provided- the aggravate 
 expense of clothing shall not be thereby increased; and as an inducment to industry and 
 good'behaviour, the warden may, with the consent in writing of the inspectors, allow- the 
 convicts some additional articles of clothing, 
 
 AH necessary means shall be used, under the direction of the warden, to maintain. order 
 in the.prison, enforce obedience, suppress insurrection, and effectually prevent escapes • for 
 which purpose, he may at all times require' the aid and utmost exertions of all the officers of 
 the institution, the inspectors, chaplain and physician excepted. . 
 
 The state prison shall be visited by the governor and council annually and as much bftener 
 as'they may think proper, for the',purpose: of examining into its concerns, and ascertaining 
 
204—31 execution; 
 
 its condition ; they shall inquire into- all alleged -abuses," or neglects of duty, and majr make 
 such alterations in the general discipline of the prison, as, on examination, they "may- find 
 necessary. ■ ; 
 
 The governor, with the advice arid oonsent of the' council, may, from time to time, cause 
 additional buildings tolje erected, or alterations -to be made in the existing buildings of the 
 prison, so that there shall he, at all times, as many separate, cells, as-there are coiivicts in 
 the prison ; ho may, in like manner, cause such additions or alterations to' be made, as shall 
 be found necessary, for the accommodation of such of the Officers, as are required by law to 
 reside constantly within the precincts ofthe prison, 
 
 ■Whenever 'an appropriation of money is made by the legislature, for the support of the. 
 state prison, the governor, with the consent of the council,- shall .draw a warrant, infavorof 
 the warden, for such ■ portions thereof, 'from time "to time, or for the whole amount at oiie 
 time, as he shall think proper. 
 
 The warden, and.all the officers of the.p'rison shall-treaf. the convicts with kindness, so 
 long as they shall merit .such treatment by their tfbedience, industry and good.conduct. . 
 
 The warden may pay to any convict, .who shall, in his opinion, deserve it "by his- good 
 conduct; on his leaving the prison a sum not exceeding five dollars', out of the treasury of 
 the prison ; and no convict shall leave the^aid prison, without being, furnished with decent 
 clothing. ' . • 
 
 Prison Regulations in Pinnsylvanid. — (Dunlop's Laws of Penn., pp. 490 'to 495.) 
 
 - - ... ' • - 
 
 The following rules and regulation's for the better ordering and government of said peni- 
 tentiaries, shall be and continue in force until altered by the legislature, or-in the-manner 
 hereinafter stated. .. 
 
 They shall, at their first meeting, and annually thereafter, apppint out of their number .a 
 president, secretary and treasurer, and keep regular minutes' of their. proceedings;.. they shall 
 hold stated meetings once a month, .and adjourned and special meetiugs wheneyer.necessary ; 
 the treasurer shall give bond, with sufficient surety, in ,such amount as the inspectors ■ may 
 fix and determine, -and' shall receive and'disburse all monies belonging to the prison accord- 
 ing to the order of the board; they shall semi-annually appoint a warden, a'physieian, and 
 clerk for the institution, and shall fix their salaries as well as those of the underkeepers or 
 overseers, and tlje persons employed about the prison ;- they shall serve without any pecu- 
 niary compensation, and be exempted from military duty, from serving on juries and arbi- 
 trations, or as guardians" of the poor :- they shall visit the penitentiary at least twice in every 
 week, -to see that the duties' of- the several officers and attendants are performed, .to prevent 
 all oppression, peculation, or other abuse Or mismanagement. of the said institutions; they 
 shall have power, if. they on conference find.it necessary, to make such rules for the internal 
 government of said prison as may not be, inconsistent with the principles of solitary confine-' 
 ment, as set forth and declared'' by this act.. 
 
 They shall attend to the' religious instruction of the prisoners,. and'procure -a suitable per- 
 son for this object, who shall be the rSligious" instructor of the prisoners- Provided, their 
 services shall be' gratuitous. . . • ■ . ■ " 
 
 TJioy shall direct the manner'jn which all raw materials -to be manufactured by the con- 
 victs in said prisons, and the provisions and other supplies for 'the prisons shall be purchased, 
 and also the sale of all articles.manufactured in said prisons. 
 
 They shall cause, accurate accounts to. be kept by the clerk of all expenditures and receipts 
 in the penitentiaries, which accounts respectively shall be annually examined and settled by 
 the auditors of the countyof Allegheny and of the county of Philadelphia. 
 
 They shall, on or before the first day of January, in every year, make a report in writing 
 to the legislature, of the -state of the penitentiaries. 
 
 'The report shall contain the number of prisoners 'in confinement, their age, sex, place of 
 nativity, time of commitment, term of imprisonment during the preceding year, notioing also 
 those who have .escaped. or died, or who were pardoned or discharged, designating 'the of- 
 fence for which the commitment was made, and whether for a first or. repeated offence, and 
 
IMPRISONMENT. 204—32 
 
 when and inwhat court, or by whose order: and'in-such return tb9 inspectors sball make 
 . such observations as to the efficiency of the system of solitary confinement as may be the 
 Tesult of their experience, and giro such information as they may deem expedient for mak- 
 ing the said institution effeetuaLin the punishmejit "arid reformation of . offenders. 
 
 They shall have power to examine any person upon -oath or affirmation relative to any 
 abuse in the- said places of confinement or matter within'the, purview of their duties.; they 
 shall direetrin what manner the rations for' the subsistence of the prisoners shall be composed, 
 in conformity with the general directions on that subject hereinafter -contained. 
 
 The inspectors in their weekly visits to the'several places of confinement, shall speak to 
 each- person confined therein, puff of the presence of any of the- persons, employed therein ; 
 shall .listen to any complaints that may be made of oppressions op ill conduct of the persons 
 so employed.; examine into the truth thereof, and proceed therein when the complaint is 
 well founded ; and on such visits they stall have the calendar of the prisoners furnished to' 
 -them. by the warden, and see by actual inspection whether all the prisoners named in the 
 said calendar are found in the said prison in the situation in which, by the said calendar, they 
 are declared to be. '- - 
 
 A majority of the said inspectors shall constitute & board, and may do any of the acts re- 
 quiredtof the said' inspectors ; two of the inspectors -shall be a .quorum for trie ■ weekly -visi- 
 tations hereby directed to be made. 
 
 The warden shall not, nor shall any inspector^ without the direction "of . a majority ef the 
 inspectors, sell any article for the use of the said penitentiaries, or either of them, or of the 
 persons confined therein during their confinement, nor derive any emolument from such pur- 
 chase^ sale, nor shall he or they, or either of them, receive under any pretence whatever 
 from either of the said prisoners;, or any one on his behalf, any sum of money, emolument 
 or reward whatever,. or any article of value, as a gratuity^or gift, under the penalty of five 
 hundred dollars fine-/_to be -recovered in the name of the commonwealth by an action of debt, 
 in any court of record .thereof "having jurisdiction of sums of that amount. 
 
 The warden shall reside in trie penitentiary ; he shall' visit every cell and apartment, and ' 
 see every prisoner under his. care at least once in every day; he shal} keep a journal, in 
 which shall be regularly entered -the .reception, discharge, death," pardon or escape' of any 
 prisoner, and also, the c'omplaints.that af* made and the punishments that are inflicted for 
 trie breach of prison discipline, as they occur ; the visits of the inspector and the physician, 
 and all other occurrences of note that concern the-state of the prison, except the receipt and 
 expenditures, .the account of which is to.be kept, in trie maimer hereinafter directed. 
 
 The warden shall appoint the under-keepers, whoshall/oe.called overseers, and all neces- 
 sary servants, and dismiss them whenever he thinks proper, or the board of inspectors di- 
 . rect him so to do. " • -• ■••-'- '..'". > 
 
 He shall report all infractions of the .rules to the inspectors, and,' with the approbation of . 
 one of them,- may punish the offender, in such manner as shall be directed in the rules to be 
 enacted by the inspectors' concerning the treatment of prisoners. 
 
 He shall not absent himself from, the penitentiary for a night witfiout permission in writ- 
 ing from two of the inspectors. 
 
 He shall not be present when the inspectors make their stated visits to the prisoners" un- 
 der his care, unless thereto required by the inspectors. ' ' ' 
 
 it shall be the duty of the overseers to inspect the conditionof each prisoner at least three 
 times in every day, to see that his meals are regularly delivered, according to the prison al- 
 lowance, and to superintend the work 'of the prisoners. .,) 
 
 They shall give immediate notice to the warden or physician whenever any convict shaJl 
 complain of such illness as to require medical aid. 
 
 Each overseer shall have a certain number of prisoners'assig'ned to his care. 
 
 He shall make a daily' report to the warden of trie health and conduct of the prisoners, 
 and a like report to the" inspectors, when required. 
 
 No overseer shall be present when trie warden of the inspectors visit the prisoners under 
 his -particular care, unless thereto required by the warden or inspectors. 
 
204—33 execution. 
 
 The overseers shall obey all l<3gal orders given by the Varden, and all rales established by 
 the board of inspectors, for the government Of the prison. ■' • 
 
 All orders to the overseers must bo given through or by the warden. 
 
 The overseers shall not-be absent themselves from the prison, without permission from the 
 warden. . > 
 
 No overseer shall receive- ffotn any one confined in the penitentiary, or from any one in 
 behalf of such prisoner, any emplumeht or reward whatever, 'or. the. promise of any, either 
 for services or supplies, or as a gratuity,, under the penalty of one hundred dollars and im- 
 prisonment for thirty days in the county jail, and when any breach ofthis article shall come 
 to 'the knowledge of the warden or inspectors, the overseer or 'overseers so .offending shall 
 be immediately discharged from his office, "and prosecuted for -the said offence according to 
 law. , . 
 
 No overseer who -shall have been discharged for any offence whatever, shall.again be em- 
 ployed. 
 
 The physician shall visit every prisoner in the prison twice in every week, and .oftener if 
 the state of their health require it, and shall report' once in every month to the inspectors. 
 
 He shall attend' immediately on notice from the warden that any 'person is!sick. . ' 
 
 He shall examine every prisoner \hat shall be brought into tile penitentiary, before he 
 shall bo confined in his cell". 
 
 ■Whenever, in the opinion of the physician, any convict in the. penitentiary is so ill as to 
 require removal, the warden shall direct such removal to the infirmary of the institution,.and 
 the prisoner. shall be. kept in the infirmary until, the physician shall certify that he may be- 
 removed without injury to his health, and he shall then be removed to his cell. 
 
 He shall visit the patients in the infirmary at least once in- every day,. and he shall give 
 such directions for the health and cleanliness of the prisoners, and when necessary, as to the 
 alteration of their diet, as he may deem expedient, which the warden .shall have executed : 
 Provided, they shall not be.contfary, to the provisions.oE this law, ot inconsistent with the 
 safe custody -pf the said prisoners ; and the direptions he may give, whether complied with 
 or not, shall be entered on the journal of the warden and on his own. 
 
 The physician shall inquire into the mental as well as the' bodily state of every prisoner, 
 and when he shall have reason to believe that the. mind or body is materially affected by the . 
 discipline, treatment or diet, he, shall inform the warden thereof, and shall enter his observa- 
 tion on the journal hereinafter directed to be iept,' which shall bS an authority for the war-,, 
 den for altering the discipline, treatment or diet of any prisoner until the next meeting of 
 the inspectors, who shall inquire into the case and make orders accordingly.. 
 
 The physician shall keep a journal, in which opposite to the name of each prisoner shall 
 
 be entered the state of his health, and if sick, whether in the infirmary ornot, together with 
 
 . such remarks as lie may deem important; which journal shall be open to the inspection of 
 
 the warden and,the inspectors, and the same, together with the return provided .for in the 
 
 first article in this section, shall be laid before the inspectors once in every month, or oflener 
 
 if called for. 
 
 The prisoners under the care of the physician, shall be allowed such diet as he shall di-_. 
 
 No prisoner shall be discharged while laboring under a dangerous disease, • although en- 
 titled 'to his discharge, unless by his own desire. 
 
 The infirmary shall- have a suitable partition between every bed, and no two patients shall 
 occupy the same bed, arid the physician and his - attendants shall take every precaution in 
 their power to prevent all intercourse between the convicts while in the infirmary. 
 
 Every convict sentenced to imprisonment in the penitentiary, shall, immediately after the 
 sentence shall have, been finally pronounced, be conveyed by the sheriff of the county in 
 which he was condemned to the penitentiary.^ 
 
 On the arrival of a convict, immediate notice shall -be' given to the physician, who shall 
 examine the state of* his or her health, he or she shall then be stripped of his or her clothesi 
 and clothed in the 'uniform of the prison, in the manner hereinafter provided, being first 
 bathed and cleaned. 
 
IMPRISONMENT. 204—34 
 
 He or she shall then be examined by the clerk and the warden, in the presence of as many 
 of the overseers as can conveniently attend, in order to their becoming acquainted with his 
 or her person and countenance, and .his or her name, height, apparent and alleged age, place 
 of nativity, trade, complexion, colour of hair, and eyes, and length of his or her feet, to be 
 accurately measured, shall be entered, in a book provided for that purpose, together with 
 such other natural or accidental marks, or peculiarity of feature or appearance, as may serve 
 to identify him or her, and if the convict can write, his or her signature shall be written un- 
 der the said description of his or her person. 
 
 All the effects on the person of the convict, as well as his clothes, shall be taken from him 
 or her, and specially mentioned and preserved under the care of the warden, to be restored 
 to him or her on his or her discharge. ■ 
 
 If the convict is not in such ill health as to require being sent to the infirmary, he or she 
 shall then be conducted to the cell assigned to him or her, numerically designated by which 
 he or she shall thereafter be known during his or her confinement.' 
 
 The uniform of the prison for males shall be a jacket and trowsers of cloth or other warm 
 stuff for the winter, and lighter materials for -the summer, the form and color shall be deter- 
 mined by the inspectors, and two changes o£ linen shall be furnished to each prisoner every 
 week. 
 
 No prisoner is to receive anything but the prison allowance. 
 
 No, tobacco in any form shall be used by the convicts, and any one who shall supply them 
 with it, or with wine or spirituous or intoxicating fermented liquor, unless by order of the 
 physician, shall be fined ten dollars, and if an officer, be dismissed. 
 
 No person who is not an official visiter of the prisons, or who has not a written permis- 
 sion according to such rules as the inspector may adopt as aforesaid, shall be allowed to visit 
 the same : the official visiters are the governor, speaker and members of the senate, the 
 speaker and members of the house of representatives, the secretary of the commonwealth, 
 the judges of the supreme court, the attorney-general and his deputies, the president and 
 associate judges of all the courts in thesta^e. the mayor and recorder of the cities of Phila- 
 delphia,, Lancaster and Pittsburg, commissioners and sheriffs of the several counties, and the 
 acting committee of the Philadelphia society for the alleviation of the miseries of public 
 prisons.. 
 
 None but the official visiters can have any communication with the convicts, nor shall any 
 visiter whatever be permitted to deliver to or receive from any of the convict's, any letter or 
 message whatever, or to- supply them with any article of any kind under the penalty of one 
 hundred dollars fine, to be recovered as hereinbefore provided for other fines imposed by 
 this act. ' 
 
 Any visiter who shall discover any abuse, infraction of law,' or oppression, shall immedi- 
 ately make the same known to the board of inspectors of the commonwealth, if the inspect- 
 ors or either of them are*implicsited. 
 
 "Whenever a convict shall be discharged by the expiration of the term for which he or she 
 was condemned, or by pardon, he or she" shall take off the prison uniform, and have the 
 clothes which he or she brought to the prison restored to him or her, together with the other 
 property, if any, that was taken from him or her on his or her commitment, that has not 
 been otherwise, disposed of. , ..... 
 
 When a prisoner is to be discharged, it shall be the duty of the warden to obtain from him ■ 
 or her as far as is practicable, his or. her former history; what means of literary, moral or 
 religious instruction he Or she enjoyed',' what early -temptation's to crime by wicked associa- 
 tions or otherwise he or she was exposed to ; his or her general habits ; predominant pas- 
 sions and prevailing vices, and in what part of the, country he or- she purposes to fix his or 
 her residence, all which shall be entered by the clerk in a book to be kept for that purpose, 
 together with his or her name, age, and time of discharge. 
 
 If the' inspectors and warden have been, satisfied with the morality, industry, and order 
 of his conduct, they shall give him a certificate to that effect, and shall furnish the discharged 
 convict with four dollars, to be paid by the state, whereby the J temptation immediately to 
 commit offences against society, before employment can be obtained, may be obviated. 
 
204 — 35 EXECUTION. 
 
 It shall be the duty of the instructor to attend to the"moral and religious instruction of 
 the convicts, in such manner as to make their confinement as far as possible the means of 
 their reformation, so that when restored to their liberty, they may prove honest, indus- 
 trious and useful members of society; and the inspectors and officer are enjoined. to give 
 every facility to the instructor, in sucja measure as he may think necessary to produce so 
 desirable a result, not inconsistent with the rules and discipline of the, prison. 
 
 The expenses of maintaining and keeping the convicts in the said eastern and western 
 penitentiaries, shall be borne by the respective counties in which they shall be convicted, 
 and the said expense shall be paid to the said inspectors by orders to be drawn by them on 
 the treasurers of the said counties, who shall accept and pay the same: Provided, That the 
 said orders shall not be presented to the said treasurers, before the first Monday of May in 
 each and every year : And provided also, that the said'inspectors shall annually on or before 
 the first Monday of February, transmit by the public mail, to the commissioners of such of 
 the counties as may have become indebted for convicts confined in said penitentiaries, an 
 account of the expense of keeping and maintaining said convicts, which account shall be 
 signed by the said inspectors, and be sworn or affirmed to by them and attested by the 
 clerk, and it shall be the duty of the said commissioners immediately on receipt of said ac- 
 counts to give notice to the treasurers of tlleir respective counties of the amount of said 
 accounts, with instructions to collect and' retain moneys for the payment of said orders 
 when presented; and all salaries of the officers of the said penitentiaries shall be paid by 
 the state ; and it shall be the duty of the inspectors to transmit to the auditor-general the 
 names of the persons by them appointed, arid the salaries agreed to be paid to each of them 
 under the provisions of this act, which sums shall *e paid in the usual manner by warrants 
 drawn by the governor upon the treasurer of the commonwealth. 
 
 That the several acts of assembly of this commonwealth, und such parts thereof, so far as 
 the same are altered or supplied by this act, be and the same are, hereby repealed, from and 
 after the first day of July next : Provided, That the repeal thereof shall in no wise affect 
 any indictment, trial, sentence or punishment of any of the said herein mentioned crimes or 
 offences, which have been, or shall be committed before this act shall come into operation. 
 
 Prison Regulations in Virginia. — (Rev. Code of Ta. of 1849, tit. 56, oh. 213.) 
 
 Every convict, when first brought to the penitentiary, shall be washed, cleansed and kept 
 in a separate lodging, until the surgeon certifies he is fit to be put among the other priso- 
 ners' and the clothes.he wore shall be either destroyed, or purified and preserved until he is 
 discharged, and then returned to him. 
 
 The male and female convicts shall be kept-separate from each other, and the males shall 
 have their heads and beards close shaven or sheared, once a fortnight or oftener if need be. 
 Every convict shall be clothed at public expense, in a distinctive uniform for each sex, made 
 of coarse materials. 
 
 The convicts shall be kept to the hardest labor suitable to their sex and fitness, and such 
 of them, as need it, instructed in some mechanic art. 
 
 Social intercourse, conversation and acquaintance between the convicts, shall be prevent- 
 ed as far as may be, and silence constantly observed by them as far as possible. 
 
 The convicts not disabled by ill health, shall, when their solitary confinement does not 
 preyent it, labor each day, Sundays excepted, so long as the season will permit, "(allowing an 
 hour each for breakfast and dinner,) not exceeding eight hours in November, December, and 
 January nine in February and October, and ten in all other months. 
 
 The convicts shall be fed on bread of Indian meal, or other coarse bread, and have one 
 meal a day of coarse meat. The board of directors may change or regulate the diet for good 
 
 cause. 
 
 The superintendent may allow the convicts extra diet, when they whitewash the walls of 
 tho rooms and cells, or wash, the floors thereof. This work shall be done by the prisoners 
 in rotation- tho whitewashing shall be at least twice a year, and the other washing- once a 
 week, or oftener if directed by the board. 
 
IMPRISONMENT. 204—36 
 
 He may allow them, at stated times, to walk for the benefit of their health, in the yard, 
 and, with the approbation of two of the directors, to work therein; but in either case, in the 
 presence or view of the superintendent or an assistant. 
 
 He shall, at the discretion and under the 'direction of the governor, employ them at Rich- 
 mond, or within a mile thereof, in improving, repairing or working on the public buildings, 
 grounds and property. 
 
 Each convict shall be locked up during the night and every Sunday, (except to attend re- 
 ligious -service,) and when the number of apartments will permit, each separately, unless in 
 the hospital. ■• 
 
 A convict guilty of profanity, indecent behavior, idleness, neglect or wilful mismanage- 
 ment of work, insubordination, an assault not amounting to felony, or a. violation of any of 
 the rules prescribed by the governor, may, under the orders of the superintendent, subject 
 to the said rules, be punished by lower and coarser diet, the iron mask or gag, solitary con- 
 finement in a cell or the dungeon, or by- stripes. Under such orders and subject to the said 
 rules, the superintendent fraay, when a convict is charged with an offence, for which he is 
 to be tried under chapter two hundred and fourteen br two hundred and fifteen, confine him 
 in a cell or the dungeon until such trial. 
 
 The board, in its discretion, may allow a convict, on his discharge^ not exceeding thirty 
 dollars, and, if he needs it, a suit of coarse clothing. 
 
 The surgeon to the penitentiary shall visit the penitentiary once at least every day, and 
 oftener, when there are cases of sickness requiring it, or when he is called on to attend by 
 the superintendent. Before leaving the city of Richmond at any time, he shall notify the 
 superintendent of his intention, and the tjme he expects to be absent, and what physician 
 may be called on to" officiate for him, in his absence. 
 
 The surgeon shall render to the convicts all surgical and medical aid which may be re- 
 quisite. 
 
 The room now kept for that purpose, shall continue, to be used as a hospital. A sick con- 
 vict shall be kept in it, when the surgeon so prescribes! There shall be a book in which 
 shall be entered the name of each convict, put in the hospital, and the time that he goes in 
 and comes out of it. 
 
 One of the directors, in such order as the board may direct, shall once a week visit the 
 hospital with the superintendent; and the two shall make a report of the treatment and con- 
 dition of the sick. The annual report of the board shall show the condition of the health of 
 the convicts. It shall state the number in the hospital every month from each ward, the 
 disease of each person put in the hospital, and the number of deaths in each ward. 
 
 The governor, members of the council, and of the general assembly, ministers of the gos- 
 pel for performing religious service, and the officers and others having duties or business 
 therein, may go into the interior of the penitentiary. Any other person, who shall obtain a 
 permit to do so from the governor, may also visit the same, between the hours of nine in 
 the morning and noon of any day, except Saturday or Sunday. There shall be no conversa- 
 tion between a visitor and a convict, unless special license therefor be given by the governor 
 or superintendent. 
 
 A majority of the directors shall be a quorum for business of the board. 
 
 The board may apply the means of the institution to repair and enlarge the shops, and in- 
 crease the number of cells when required, They shall cause to be done in the penitentiary, 
 any work whichcan be done therein, towards effecting the improvement or repairs mention- 
 ed in the twentieth section. They shall direct the manufacturing operations, and have the 
 goods manufactured and work done at the penitentiary, (except as otherwise provided,) de- 
 livered weekly to the general agent, to be disposed of by him, at such prices as may be men- 
 tioned in duplicate invoices thereof; one of which shall be delivered to the agent, and the 
 other, with the agent's receipt thereon, shall be preserved at the penitentiary by the clerk. 
 And they shall cause a proper set of books to be kept by the clerk, have a general super- 
 vision and control in the management of the penitentiary and penitentiary store, and oyer 
 the officers thereof, and see that the rules for their government prescribed by law or by the 
 governor, are observed by the officers. 
 
204 — 37 EXECUTION. 
 
 "When an investigation is ordered by the governor, as to. a matter concerning the peniten- 
 tiary, or the conduct of persons connected therewith, the clerk of the penitentiary, by order 
 of the board, may issue a summons directed to the sheriff of the -county of Henrico, com- 
 manding him to summon any person to attend at the penitentiary on a certain day, to give 
 evidence before the board, and may administer an oath to such person. The board, shall 
 have like powers under the twenty-second and twenty-third sections of chapter one hun- 
 dred and seventy -six, as if it was a court whose clerk had issued the summons. And the 
 clerk of the penitentiary shall make such entry as would, under the thirty-fourth section of 
 the same chapter, if the attendance were before a court, be made by the clerk thereof. The 
 sum to which the witness is entitled, shall he paid out of the funds of the institution. Testi- 
 mony taken before the said board shall not be read on the trial, by a court martial, of an 
 officer or soldier of the public guard. 
 
 Two or more of the directors shall, at the end of each fiscal year, attend the taking of the 
 inventories of the goods and stock on hand at the penitentiary and penitentiary store. 
 
 The board shall annually, before the first of November, make a report to the governor, to 
 be laid before the general assembly, showing the expense to the state of the penitentiary for 
 the previous fiscal year, and its condition at the end of such year, the manner in which the 
 rules have been executed and their effect, and making any proper suggestions as to the dis- 
 cipline and organization of the penitentiary. ' 
 
 The superintendent shall reside in the front building of the penitentiary,- and shall be al- 
 lowed his fuel. ,i 
 
 He shall be the chief executive officer of the penitentiary, and direct its internal police 
 and management, subject to the control of the hoard of directors. 
 
 His assistants, whose duties he shall prescribe; shall be designated and stand in authority 
 as first assistant, second' assistant, and so on. The first assistant shalll act in place of the 
 superintendent when he is absent. The duties of the first assistant shall in his absence be 
 performed by the second assistant,. and so on in succession. 
 
 The superintendent, from time to time, shall submit to the board a list of such materials 
 and other things as are required at the penitentiary. He shall, if the board so order, make, 
 or aid the general agent in making, purchases thereof; and without such order, may, if it be 
 necessary, make purchases in the recess of the board, subject to its approval. He shall keep 
 or have k'epr, in each ward, a book showing separately an account of the raw materials as 
 received, and of the manufactures and work done therein, and in his annual report-render 
 an account showing the result of the operations of each ward. 
 
 The superintendent may, in the recess of the board, deliver to the general agent, goods 
 manufactured or work done, when necessary to effect a sale thereof, taking from him a writ- 
 ten receipt for them, stating their prices. 
 
 He may when he can without neglect of other duties, sell and deliver such articles manu- 
 factured and job work done at the penitentiary, as may be called for there, delivering to the 
 general agent an account of such articles and work, and paying to him all money received 
 therefor. On the responsibility of the agent, any such sale may be on credit, if he in writing' 
 authorize it, but not otherwise. 
 
 AVhen the board of directors of either of the lunatic asylums desire to purchase, for the 
 use thereof, cloth, clothing or shoes, of the manufacture of the penitentiary, if they make re- 
 quisitions therefor in reasonable time, the superintendent of the penitentiary shall pack up 
 the articles, forward them to the asylum at its cost, and charge the articles to -the state. 
 
 The superintendent shall, at the end of each fiscal year, furnish the first auditor with a re- 
 ceipt from an officer of the asylum, for any articles so furnished within said year, and a state- 
 ent of their prices; for which the penitentiary shall have credit and the asylum be charged. 
 TT shall at the end of each fiscal year, state a general account between the state and the 
 penitentiary for sucli year, charging the latter with the value of the tools, machinery, fix- 
 tures and materials on hand at the commencement of the year; the raw materials purchased 
 during the year; the ratipns furnished for the convicts; the salaries of all the officers, and all 
 the contingent expenses of the penitentiary; and crediting it with the work -of the convicts 
 delivered from the penitentiary to the general ngent and others; the work and repairs done 
 
IN OTHER CASES. 204—38 
 
 r (d ) In oilier cases. 
 
 In cases of forcible entry, if the force be continuing, or the prosecu- 
 tor expelled, part of the judgment is that the prosecutor have restitution 
 of his premises. ' 
 
 In case of a public nuisance,. if it be continuing, part of the judg- 
 ment is that it be abated. 
 
 And if an offender be adjudged to *pay a fine, and also to [*205] 
 be imprisoned, then, although he is imprisoned, the fine may- 
 be levied also, if he have- any property upon which to levy it. 
 
 Bat it is very doubtful whether a court of quarter sessions, or even 
 court of oyer and terminer or jail delivery, have authority to issue 
 writs for the execution of these judgments. The court of Queen's 
 Bench has : a fine may there be levied by writ of levari facias against 
 the inhabitants of a parish, &c, or by writ of fieri facias against a indi- 
 vidual ;(a) a nuisance may be abated by writ of de nocumento amovendo,(b) 
 and a writ of restitution may be awarded in the case of a forcible en- 
 try.^) Where it is necessaiy, therefore, to issue any of those writs, 
 in execution of the judgment, it is best to remove the record into the 
 court of Queen's Bench, by certiorari, and you may then sue out exe- / 
 cution as of course. 
 
 (a) Arch. Pr. Cr. Off. Ill, and see the Id. 113. 
 forma of'tbose writs, Id. 112, 113. (c) Id. Ill, and see the form of the writ, 
 
 (6) Id. Ill, and see the form of the writ, Id. 114. 
 
 by the convicts on the prison and other public property; the clothing furnished the convicts; 
 and the value of the tools, machinery, fixtures and materials on hand at the end of the year ; 
 with all other debts and credits necessary to show a true account of the institution with the 
 state. 
 
 The said account shall- be laid before the board of directors, and when approved by them 
 and balanced, be made a part of their annual report. 
 
 The force sent to the penitentiary from the public guard, shall consist of a non-commission- 
 ed officer's command, and be in charge of such officer, and a chain of sentinels shall surround 
 the penitentiary night and day. 
 
 While the convicts are employed in any work on the public grounds or property, outside 
 of the penitentiary, they shall be attended by a sufficient guard, detailed by the captain of 
 the guard. 
 
 The superintendent may employ a guard, not exceeding six persons, for the interior of the 
 penitentiary, who shall perform such duties as the superintendent (subject to the control of 
 the board) may direct. 
 
 Any person so employed, may be dismissed from service at the discretion either of the 
 board or the superintendent. 
 
 The compensation of the said guard shall be allowed and certiSed by the board, at a rate 
 not exceeding thirty dollars per month, for each person, and paid by the general agent. 
 
 If any convict escape 'from the penitentiary or from the custody of the superintendent, he 
 may offer a reward for the apprehension and re-delivery of such convict, not exceeding five 
 hundred dollars, one half thereof to be paid by the institution and the other by the super- 
 intendent, his assistants and the interior guard, in proportion to the amount of their salaries. 
 
 None of said officers shall be entitled to any such reward, or any part of it, unless, express- 
 ly authorized by the superintendent. 
 
205 REDRESS FOR MALICIOUS PROSECUTIONS. 
 
 REDRESS FOR MALICIOUS PROSECUTIONS. 
 
 Although the law naturally inclines to favor those who exert themselves to give effect to 
 its criminal provisions, it will not allow its forms to be made the engine of oppressing the 
 innocent without giving them an opportunity of redress. 1 Chit. Cr. L. 10 ; 3 Bla. C. 126, 
 n. 14. And, therefore, to restrain the savage spirit with which appeals werS anciently pro- 
 secuted, the 13 Edw. 1, c. 12, directed, that if the appellee were acquitted, the appellor 
 should suffer a year's imprisonment and pay a fine to the king, besides the satisfaction to 
 the party whose life he by the prosecution attempted to destroy ; and if the appellor were 
 incapable of paying it, his abettors should be liable to do it for him, and to suffer imprison- 
 ment in their own persons. 4 Bla. Com. 316. These severe penalties, and the restitution 
 of goods being given on an indictment, soon rendered this proceeding rather a matter of cu- 
 riosity than Of practice. lb. The ancient remedy for the malicious prosecution of an indict- 
 ment was either a writ of conspiracy or an action on the case in the nature of a conspiracy, 
 or an indictment, when several parties united in the evil design. 1 Saurid. 230, n. 4; Cro. 
 Car. 239; Cro. Eliz. 701 ; 2 Sel. N. P. 1053. And, at the present day, the latter proceed- 
 ing is sometimes resorted to, where the circumstances are of a very dark coloring. 2 Burr. 
 993; 1 Bla. Rep. 368; 4 Wentw. 96; Staundf. P. C. b. 2, c. 23. But an action on the case, 
 (see Clark v. Haines, 2 Rand. 440,) for a malicious prosecution is now the more usual, as it 
 is the easier and more effectual remedy. 2 Sel. N. P. 1050. Over the old writ of conspiracy 
 it has great advantages ; for the latter could only be brought where the life of the plaintiff 
 had been in danger, (1 Saund. 230, u. 4 ; Eitz. N. B. 116 ; 1 Ld. Raym. 379 ;) and where 
 he had been "lawfully acquitted," which intended such a discharge as would be a good bar 
 to any subsequent proceeding, (Bro. Abr. Conspiracy, 23 ; Gilb. Cas. L. & E- 199; 1 Sel. N. 
 P. 1054;) but the modern remedy by action on the case lies, wherever there has been a ma- 
 licious prosecution of any criminal charge without probable cause, and which has occasioned 
 any damage to the person, character, or property of the plaintiff. 10 Mod. 148, 214; 12 
 Mod. 208 ; Gilb. Cas. L. & E. 185, 202 ; see precedent and notes, 2 Chit. PI. 612, 4th ed. 
 So it lies where the indictment has been thrown out by the grand jury, (2 Rol. Rep. 188 ; 
 Cro. Jae. 490,) where it has been preferred before an improper tribunal, (1 Rol. Abr. 112,) 
 and where the discharge has arisen from a defect in the proceedings. 4 T. R 247 ; 2 Sel. 
 N". P. 1055. Besides, the writ of conspiracy could only be granted where more than one 
 was accused of conspiring, (Fitz. N. B. 116; 1 Saund. 230, u. a.; Carth. 417,) and all the 
 old cases of malicious prosecution called writs of conspiracy, (see Cro. Car. 239; Cro. Eliz. 
 701 ) are no more than mere actions on the case which were always valid against one alone. 
 Eitz N. B. 116' Carth. 417; 1 Saund. 230, a. In the action for a malicious prosecution, 
 the damage sustained by the plaintiff is the ground of the proceeding, and not any secret 
 motives by which the guilt of the defendant may be increased, (Carth. 416; Bui. N. P. 14;) 
 and therefore though the words " per conspirationem per eos per habitam" be introduced, 
 they will be mere surplusage and can in no way affect the right of the party injured to re- 
 cover 1 Saund. 230, n. a. Thus, where these words are inserted, in a declaration against 
 two persons, and one of them only appears, proceedings may be carried on against one- 
 alone Bro. Ab. Conspiracy, 38; 1 Ld. Raym. 397. So if all the defendants are acquitted 
 but one he may be found guilty and judgment given against him. 2 Inst. 562 ; Cro. Car. 
 236 • Sir Tfm. Jones, 94; 1 Rol. Abr. Ill, 112 ; 2 Show. 50 ; 6 Mod. 169 ; 1 Saund. 230, n. a. 
 
 It seems to have been formerly thought that no action could be maintained where the ac- 
 quittal arose from some technical objection, and no guilt was imputed by the indictment nor 
 any imprisonment endured; but it is now settled that, in such case, the mere fact of the 
 nlaintiff's having been put to expense by the proceedings is a sufficient ground to entitle 
 him to redress. 1 Ld. Raym. 374; Carth. 416 ; 2 Stra. 691 ; 1 Salk. 13 ; 4 T. R. 247 ; Gilb. 
 p T *■ E 185' 10 Mod. 148, 214. And an action lies for the malicious prosecution of a 
 bad indictment for perjury. 5 B. & A. 634; 1 Dow. & Ry. 266. So an action lies for ma- 
 liciously obtaining or executing a- search warrant for smuggled goods, though none such 
 
 /■ i i w -R R3f> n'' 1 Dow. & Ry- 97; 2 Chit. Rep. 304. And a man may recover 
 are found. 1 1. &■ oao, n., ^ u " J J r _ j 
 
 in an action for a malicious prosecution of his wife, of which he has paid the expenses. 
 Rep. Temp. Hardw. 54; 2 Stra. 977. 
 
REDRESS FOR MALICIOUS PROSECUTIONS. 205 — 1 
 
 But though actions for malicious prosecution are thus allowed, they are by no means en- 
 couraged by the courts. - 1 Salk. 15. In order to support them, there must have been want 
 of probable cause for the prosecution — malice express or implied — and an injury sustained 
 by the plaintiff either in his person by imprisonment, his reputation by scandal, or his pro- 
 perty expense. 2 Sel. N. P. 1056, 1057. 
 
 There must have been no probable ground of prosecution. 3 How's Rep. 160, 180, 181, 
 182, 187. It is a mixed proposition oflaw and fact whether there was probable cause, and 
 whether the circumstances allsged to show it probable, are true, and, existed as matter of 
 fact : but whether or not, supposing them to be true, they amount to a probable cause is 
 question of law. 1 T. R. 520, 534; Bui. N. P. 14; 4 Burr. 1974; 2 B. & C. 693; 4 Dow. 
 & Ry. 107 ; 1 Carr. Rep. 138, 204; 1 Gow. C. N. P. 20. Morris v. Corson, 7 Cowen, 284; 
 APCormich v. Sessions, 7 Cowen, 717 ; Ulmer v. Leland, 1 Greenl. 135. 
 
 North Carolina. — In an action for a malicious prosecution, the dismissal or a State's war- 
 rant by the magistrate, who tried it, is prima facie evidence of the want of probable cause, 
 and throws upon the prosecutor the burthen of proving ' that there was probable cause. 
 Johnsons. Martin, 2 Murphy, 248; Secor v. Babcock, 2. Johns. -203; see Findley v. Bucha- 
 nan, 1 Blackf. (Ind.) 12. 
 
 . Massachusetts. — A conviction of the plaintiff before a justice of the peace, having jurisdic- 
 tion, is " conclusive evidence of probable cause. Whitney v. Peckham, 15 Mass. 243. But 
 see Burt v. Place, 4 "Wend. 598. See further on this head, Maddox v. Jackson, 4 Munf. 462 ; 
 Cotton v. James, 1 Barn. & Adol. 128; Pierce v. Thompson; 6 Pick. 193. 
 
 As to the question of probable cause — how far one, of law, and how far one of fact, see 
 M Cormick v. Sessions, 7 Cow. 717 ; Ulmer v. Leland, 1 Greenl. 135; Leggettv. Blount, 2 Tay- 
 lor, 123; Munns v. Dwpont, 3- Wash. C. C. 31; Cdhman v. Wolcott, 1 Connecticut, 285; Kel- 
 ton v, Bevins, Cook, 90 ; Crabtree v. Morton, 4 Munf. 59 ; Maddox v. Jackson, id. 462 ; 2 Stark. 
 Ev. (5th Am. ed.) 493 and n. (K.) 
 
 It is not necessary that there should have been any legal grounds for the action ; for it 
 will suffice to excuse the prosecutor if it appear, from the circumstances of the case, that he 
 was not actuated by improper motives;' but by a sincere belief that the party accused was 
 guilty, and an anxiety to bring him to justice. Cro. Jac. 193. In an action against _a ma- 
 gistrate for a malicious conviction, it is not sufficient -to show that the plaintiff was innocent 
 of the offence of which he was convicted, but he must also show, from what passed before 
 the magistrate, that there was a want of probable cause. 1 Marsh. 110; 5 Taunt. 580, S. 
 C. But it is no answer to this action that the defendant was encouraged in what he did by 
 the opinion of counsel, if the statement of facts was incorrect or the opinion ill founded. 5 
 Taunt. '277; 2 B. & C. 693;, 4 Dow. & Ry. '107 ; 1 Carr. Re. 204; see 4' Serg. Sc R. 23. 
 "Whether the opinion of the prosecuting officer in favor of the legality of the prosecution be 
 evidence of probable cause, Qwzre. Thompson v. Mussey, 3 Greenl. 305. 
 
 A great restraint on this kind of action is, that it cannot be supported in evidence on the 
 trial, without producing the record or a copy of the record of acquittal. 14 East, 392 ; Burr. 
 1971 ; 3 Bla. Com. 126. And in case of felony this ean only be -obtained by special order, (2 
 Taylor v. Cooper, 2 Const. Ct. 208. But where the bill has been thrown out by the grand 
 jury, the "party is entitled to a copy without the judge's order. JTd.) upon motion made in 
 open cpurt, which will not be granted if there was the least foundation for preferring the in- 
 dictment; for it would be a great discouragement to public justice, if prosecutors were liable 
 to be sued whenever the defendant was acquitted. Kel. Pref. iii. ; 1 Ld. Raym. 253 ; Carth. 
 421. it, however, the officer gave the copy without such authority, it will be available in 
 evidence, though the officer will be punishable for his contempt. 14 East, 302; see also 5 
 M. & Ry. 118. 
 
 But this does not apply to indictments for misdemeanors, which it is thought probably not 
 so important to encourage ; for the defendant, when set at liberty, is entitled, as a matter of 
 course, to a copy of the record. 1 Bla. Rep. 385. See Minns v. Burts, 2 Const. Ct. 308. 
 And the order need not, at any time, be produced in order to introduce the record as evi- 
 dence; and, therefore, where two persons were jointly indicted for felony, and a copy of the 
 record Was granted to one of them only, which was produced on a trial for malicious prose- 
 
205 — 2 REDRESS FOR MALICIOUS PROSECUTIONS. 
 
 cuticra at the suit of tha other, the plaintiff obtained a verdict which the court refused to set 
 aside. 2 Stra. 1122. 
 
 "When.it becomes necessary, in order to support the action, that the plaintiff should he 
 put in possession of the examinations before the justices, and also of the warrant on which 
 he was apprehended, he may apply to the court on affidavit of demand and refusal, and ob- 
 tain a rule calling on the magistrate and the constable respectively to show cause why they 
 should not be inspected and copies taken, and the originals produced on the trial. On this, 
 a rule will be made ordering the inspection, and commanding the respective parties to pro- 
 duce the originals in evidence on the trial. Barnes, 468, 469;- 1 Stra 126 127- Tidd's 
 Prac. 852, 8th ed. ' ' 
 
 In a late case in an action for a malicious prosecution for an assault before a magistrate, 
 the magistrate proved that the depositions taken before him were reduced into writing, and 
 that he delivered them at the court of Quarter Sessions to the clerk of the peace or his de- 
 puty; the clerk of the peace stated that a bill of indictment for the assault was preferred, 
 and that the grand jury returned ignoramus, and that it was usual in such ease to throw 
 away or destroy the depositions, and that he had searched among his papers and could not 
 find them : it was held, that parol evidence of their contents was' admissible, and it was not 
 necessary to call the deputy clerk of the peace to show that the original depositions were 
 not in his possession, inasmuch as it was his duty, if he had received them, to have delivered 
 them to his principal, and not being in his custody, it was to be presumed they were lost or 
 destroyed. 2 B. k C. 494; 3 Dow. & Ry. 669. 
 
 Besides this necessity of obtaining a copy of the record of the acquittal, it has-been holden, 
 that if sufficient evidence were produced on -the trial,, on the behalf of the crown, to make the 
 jury hesitate and consult together for a time what verdict they should deliver, no action can 
 be supported. 3 Esp. Rep. 7, 8. And the. defendant will be at liberty, after proving cir- 
 cumstances of suspicion against the plaintiff, to adduce evidence of his general bad character, 
 in order to show that there was probable cause for suspecting him to be guilty. 2 Esp. Rep. 
 720; Phil, on Ev. 72. In an action for maliciously procuring plaintiff to be arrested on a 
 charge of larceny, the defendant cannot give evidence to show that the plaintiff's character 
 was suspicious, and that his house had been searched on previous occasions. 2 Stark. C. N. 
 P. 69 ; and see Cro. Jac. 193 ; 3 Dow. ft Ry. 160. The defendant may also give in evidence, 
 what he as prosecutor swore on the trial of the indictment. Scott v. Wilson, Cooke, 315; 
 Moody v. Pender, 2 Hayw. 29 ; see Guerrant v. Finder, Gilmer, 36. 
 
 And it is said that no action can be maintained for the malicious prosecution of a criminal 
 information, (Beyward v. Guthiert, 4 M'Cord, 354 ;) because the proceeding is never allowed 
 without a previous application to the court founded upon affidavits, and an opportunity af- 
 forded to the party accused to show cause against- it; and, therefore, after it has been allow- 
 ed it must be presumed that there was prima facie ground for prosecuting it, as there -mani- 
 festly was for allowing it. 2 Woodes. 564; and see further as to the evidence in actions for 
 majicous prosecutions, Stark, on Ev. Malicious Prosecutions. 
 
 Besides the want of probable cause, malice must also be shown, either express or apparent 
 from the proceedings. See Warner v. Brum, 4 Rogers' Rec. 92 ; Kelton v. Bevins) Cooke, 
 90- Sornner v. Witt, 4 Serg. & Rawle, 19, 23; Kerr v. Workman, Addis. 270; Turnery. 
 Walker, 3 Gill & Johns. 377. . . j 
 
 "Whether a suit was brought maliciously, and for the- purpose of vexing and oppressing 
 the defendant, is a question for the jury under all the circumstances of the case. Bay v. 
 ■ Law I Peters' Rep. 210. And, therefore, in an action for "a malicious prosecution it willndt 
 be sufficient to show, in addition to the record of acquittal, that after the indictment was 
 ready for trial, the prosecutor was called and did not appear, on which an immediate acquittal 
 was directed without further proof of express malice, or at least of circumstances' showing 
 an entire want of all probable cause on which the proceedings rested. 9 East, 361, And 
 it is said that wherever the grand jury find the bill of indictment, express malice must be 
 shown on the part of the individual indicting; though it will be otherwise if the facts ne- 
 cessarily lie within the knowledge of the original prosecutor, for than he must prove that he 
 bad reasonable grounds of suspicion, or the plaintiff will be entitled to recover. 1 Ld. Raym. 
 
REDRESS FOR MALICIOUS PROSECUTIONS. 205 — 3 
 
 381. Bui. N. -P.- 14. 9. East, .362, n. b. 2, Selw. N. P. 1050, n. 1, .There seems also to 
 be a material distinction between malicious prosecutions and malicious convictions ; in the 
 former, if it be shown that there was no probable cause whatever, malice must be inferred, 
 because the prosecutor has sworn to the truth of a charge manifestly unfounded. But in 
 actions for malicious conyictions on .penal statutes,, the question of probable cause does not 
 depend on the actual 'guilt or innocence of the party, but of the testimony given before the 
 magistrate; and; therefore; to support the latter action, the depositions must be given in evi- 
 dence. 1 Marsh. 220. And even where the indictment has been thrown out by the grand 
 jury, if it were only for a trifling misdemeanor, some- evidence however small, must be offered 
 of a malevolent design. 1 Marsh. 12; 5 Taunt. ~\S1. Sed-Vide 4B, & C, 24. . It has also 
 been laid down, that where a defendant has been acquitted on the trial, he. need not, in the 
 .first instance, show express malice in the party by whom he was indicted, in order to sup- 
 port an- action for-a malicious prosecution ; but where the indictment is quashed for infor- 
 mality, 'an express malice, must, in- the. first instance, be shown by the plaintiff. "Willes, 520. 
 
 In. general, both malice and the want . of .-probable cause, either express or implied, must 
 appear, to entitle the plaintiff to recover. Bui. N. P. 14. 4 Burr. 1914. See Keltonv. Bev- 
 ins, Cooke,- 90 ; ilunns Y.Dupont, 3 "Wash. C. C. R. 31; Marshal v. Bussard, Gilmer, 9; 
 Bell Y. Graham, 1 Nott & M'Cord, 278 : Lindsay v. Lamed, 17 Mass. R. 190; Tanduzor v. 
 Lindermand, 10 Johns. R. 106. 
 
 It is- certain that malice will not suffice if there Were any apparent cause for the proceed- 
 ings. Bull. N. P. 14. And: though malignity may, in some cases, be fairly inferred from tho 
 want of grounds to support theproceedings, {Bennetv. Black, 1 Stewart, 39,) the latter can never 
 be .collected from the most positive proof of the former. 1 T. R. 545. So that, in every case 
 the plaintiff must give evidence, however, slight, that no grounds existed for the proceedings, 
 before the, defendant can be called upon to answer. 2 Selw. N. P. 1056, n. (2). The ques- 
 tion whether he has succeeded in doing this, is -partly of law and partly of fact ; whether 
 the circumstances alleged on either side are true or false, is a mttter of fact to be left to the 
 jury ; whether if true, they prove a reasonable ground of proseeution, or the reverse, is an 
 inference of law on which the court alone can decide. 1 T. R. 445. Bull. N. P. 14. 2 Sel. 
 N. P. 1056, n. (1.) Id. 1061.' 
 
 New York — No action will lie against a person in this state for suborning a witness to swear 
 falsely in a cause in another state, whereby a judgment was given against the defendant in 
 that state contrary to. the truth and justice of the ease. Smith v. Lewis, 3 Johns. Rep. 157. 
 
 Connecticut — A person may be liable for prosecuting a suit commenced by him maliciously, 
 and without probable cause,- while an infant. _ Sterling y. Adams, et al. 3 Day, 411. 
 
 The damage,- as we have just seen, must either be" to the person, by imprisonment ; to the 
 reputation, by scandal ; to the property, by expense. "With respect to the imprisonment, 
 any momentary detention seems sufficient. But the plaintiff cannot recover damages for an 
 imprisonment after a jail delivery, for it was his own fault to lie in the prison after. Bro. 
 Damages, pi. 115. Sayer, Damages', 87. As to the scandal, it seems that aoy'charge which 
 would be a libel if not preferred in the course of legal proceeding, would be sufficient ; but 
 an indictment for a mere treaspass, as an assault, &c, would not. See 12 Mod. 210. Gilb. 
 L. &. E. 202. 2 B. & C. 494. 3 Dow. & Ry. 669. Injury to the property, by expense, is 
 a sufficient ground for supporting the action. - Gilb. L. & E. 185, 202. 1 T. R. 518. Carth. 
 421. 14 East, 302. 305. 
 
 87 
 
INDEX TO THE NOTES 
 
 OF THE "WHOLE WORK. 
 
 Where the Notes make additional pages beyond any given page of the original 
 work, the additional pages are indicated by the figures, 1, 2, &c. 
 For Index to Text, see Vol. III. ' 
 
 ABATEMENT, 
 
 plea of in criminal eases, 111. 
 ABDUCTION, 
 
 statute of New York, 301, 301—2. 
 
 statute of Michigan, 301, 301 — 1. 
 
 statute of Mississippi, 301 — 1. 
 
 at common law, 301 — 1, 302 — 4. 
 
 construction of New York Statute, 301 — 2. 
 
 in -Massachusetts, 301—2, 301—3. 
 
 in England, 301—3 to 302—5. 
 
 in -Virginia, 302 to 302 — L 
 
 in New Jersey, 302 — 4. 
 
 in Pennsylvania, 302—1 to 302—3'. 
 
 in South Carolina, 302—4 to 303. 
 
 construction of the St. 4 and 5 Phillip and Mary, 302—5 to 303. 
 
 persons of color, 303, 303 — 1. 
 ABORTION, 
 
 death from attempt to. procure, 321-^9 to 321—11. 
 
 definition, 295. 
 
 distinctions arising out of woman's being simply with child, or "quick with child," 295 
 to 295— 1. 
 
 only to be found in modern books, 295 — 1. 
 
 what constitutes an administering of drugs, 295 — 3. 
 
 surgical observations relative to, 295 — 7 to 295 — 9. 
 
 statutes of Massachusetts, 295 — 9. 
 
 statutes of. New York, Vermont and Ohio, 295 — 10. 
 
 Maine, 295—10, 295— 11. .. 
 
 Michigan and Wisconsin, 295 — 11. 
 ACCESSORIES, 
 
 before the fact, 14. 
 
 what necessary to constitute, 14. 
 
 when they cannot be, 14. 
 
 cannot be guilty of higher crime than principal, 14. 
 
 in felony created by statute, 14. 
 
 instigator of felony guilty, 14 — 1. 
 
 liable as principal in misdemeanor, 14 — 1. 
 
 VOL. I. — A 
 
205 — 6 INDEX TO THE NOTES. 
 
 ACCESSORIES— continued, 
 to suicide, 14 — 1. 
 incitement by, 15. 
 
 trial of, in the several states, IB, IB— 1, 16, 18. 
 punishment of, in Illinois, 16. 
 indictment against, 16, 16—1. 
 
 after the fact, 11—1. 
 
 indictment and trial of, at common law, 18. 
 
 evidence against, 18 — 1, 19. 
 
 after the fact, in murder, 254—2 to 254^-T. 
 
 before the fact, in murder, 253 to 254. 
 
 in poisoning, 258. 
 
 See Principal and Accessory. 
 ACCIDENT, 
 
 when person liable for, 9, 10. 
 
 homicide by, 216. >>r- 
 
 ACCOMPLICES, 
 
 admissibility of, as witnesses, 154 — 2, 155. 
 
 pardon to, 182 — 4, 182—5. 
 ACQUITTAL, 
 
 good plea in bar, when, 111 — 1 to 113 — 1. 
 
 nature of plea of, 113. 
 
 technical differences between first and second indictment, disregarded, 113 — 1. 
 ACTS OP CONGRESS, 
 
 relative to offences against post office, 73. 
 
 relative to forging or altering coin of TJ. S. "73. 
 
 relative to bail, 55. 
 
 relative to naturalization, 8 — 2. 
 ADDITION, 
 
 of residence of defendant in indictment, '78—3. 
 
 of defendant, 78— 2,, 78— 3. 
 
 statute of, extends to defendant alone, 79 — 1. 
 ADMIRALTY, 
 
 jurisdiction of, 67 — 1. 
 ADULTERY, 
 
 denned, 615. 
 
 history of prosecutions for, 615, 615 — 1. 
 
 in Pennsylvania, 615 — 2. 
 
 in New Hampshire, 615—2, 615—3. 
 
 in other states, 615 — 3. 
 
 indictment, 615—3 to 615—6. 
 
 after divorce, 615 — 5. 
 
 AGE, 
 
 Full, of man or woman, 3. 
 
 AFFRAY, 
 
 definition, 591—3, 591—4. 
 
 how aggravated, 591 — 4. 
 
 what necessary to support prosecution, 591—4. 
 
 in prize fight, 591—4. 
 
 in Tennessee, 591—5, 696. 
 
 in Indiana, Texas, Kentucky, Ohio, and Georgia, 591—6. 
 
 in Massachusetts and New Jersey, 691—6, 591—7. 
 
 who may stop, 691—1, 591—8. 
 
 punishment, 591 — 8. 
 
 murder in, 211 — 3. 
 
INDEX TO THE NOTES. 205—7 
 
 ALIEN, 
 
 when entitled to jury de medietaie linguce, 159—1. 
 ALLEGIANCE, 
 
 doctrine of, 72, 72 — 1. 
 AMENDMENT, 
 
 of record,' 186. 
 
 of caption to indictment, 18, 78 — 1, 99 — 1, 100. 
 
 of indictment, 99—1, 100, 123—3, 212—13, 214. 
 
 of criminal informations, 100. 
 AMERICAN LAW, 
 
 meaning of felony in, 185. 
 ANIMALS, 
 
 noxious, killing of, 403 — 2 to 405 — 3. v** 
 
 larceny of, how stated, 356, 356—1." 
 
 stealing in general, 363—2 to 363^4, 397—1 to 399—1. 
 ., experiments on, 256 — 9, 256 — 10. 
 APPEAL, 
 
 in the several states, 194 to 194 — 14. 
 
 in Massachusetts, l'94 to 194 — 3. 
 
 in New York, 194 — 4 to 194—9. 
 
 in Maine, 194 — 9, 194—10. 
 
 in Mississippi, 194. 
 
 in Michigan, 194—10, 194—11. 
 
 in Vermont, 194 — 11. 
 
 in Virginia, 194 — 11, 194 — 12. 
 
 in "Wisconsin, 194—12, 194—13. 
 
 in Iowa, Tennessee, Maryland, North Carolina, and Georgia, 194 — 13. 
 
 in Alabama, 194 — 13, 194 — 14. 
 
 in Ohio, New Jersey, Pennsylvania, 194 — 14. 
 ARRAIGNMENT, 
 
 meaning of term, 107 — 1. 
 
 method of, 107—1, 108. 
 
 standing mute upon, 108, 109. ■ 
 ARREST, 
 
 definition, 21—1, 21—2. 
 
 who liable to, 21 — 1, 21—2. 
 
 before indictment found, 21 — 2. 
 
 by private individuals, 21 — 2 to 23 — 2. 
 
 without warrant in Pennsylvania and New York, 21 — 3, 21 — 4. 
 
 in what cases greatest, 23. 
 
 distinction between officers and private persons in making, 23 — 1, 23 — 2. 
 
 power of constable in, 23 — 2, 24. 
 
 power of justices of the peace in, 24 — 2. 
 
 what necessary to justify private persons in making, 25 — 2, 26. 
 
 by police officers and watchmen, 27. 
 
 may bo made at any time and place, 28 — 1, 28 — 2. 
 
 what constitutes, 28 — 2. 
 
 breaking open of doors, 24 — 1 to 29 — 1. 
 
 protection of officer in making, 29 — 2, 29 — 3. 
 
 protection of private person, 29 — 3. 
 
 necessity of summary arrest, 29 — 3, 30. 
 
 upon complaint to magistrate, 30, 31 — 2. 
 
 of persons committing crimes in foreign countries, 33 — 3. 
 
 duty of officer after making, 34 — 3. 
 
 private persons may make, 237 to 237 — 2. 
 
205—8 INDEX TO THE NOTES. 
 
 AEREST— continued, 
 
 by officers how distinguished from that by private persons, 238—1, 238—2. 
 
 under particular statutes, 238—3 to 239—4. 
 
 in civil suits, 239 — 2, 239 — 3. 
 
 notice of authority, 239—5, 239—6. 
 
 when notice unnecessary, 239 — 6. 
 
 officer making must be legal officer, 241, 242. 
 
 for misdemeanor committed out of officer's view, 243 to 243—2. 
 
 of night walkers, 243 — 2. 
 
 right' of officers to break open windows or doors, in making, 244—2 to 245. 
 ARREST OF JUDGMENT, 
 
 definition, 178—31. 
 
 in Massachusetts, 178—31. «*i 
 
 in North Carolina, 178—31. 
 
 foundation, 178—31, 178—32. 
 
 effect of allowing, 178 — 33. 
 ARSON, 
 
 XT. S. Statutes, 485—45. 
 
 statutes of the several states, 485 — 45 to 492 — 1. 
 
 definition, 492—1. 
 
 modified in the TJ. S. 492—1. 
 
 .what essential to constitute, 493. 
 
 as to to the burning, 493 to 493 — 2. 
 
 must be of the house of another, 493 — 2 to 493 — 14. 
 
 must be committed wilfully and maliciously, 493 — 14 to 494. 
 ASSAULT AND BATTERY, 
 
 with intent to kill, 259—1 to 260—1. 
 
 not necessary to prove that the defendant used all the weapons described, 261 — 9. 
 
 definition, 282, 282—1. 
 
 what in general constitutes, 282 — 1 to 282 — 4. 
 
 bow justified, 282—6 to 283—6. 
 
 inciting another to commit, 283 — 6, 283 — 7. 
 
 discharging recognizance, and superseding commitment, 283 — 7 to 283 — 9. 
 
 with intent to commit felony, 284 — 1, 285. 
 
 assaulting officers, 287 to 288. 
 ASSAULT WITH INTENT TO COMMIT FELONY, 
 
 nature of offence, 284—1, 285. 
 
 prisoner may be convicted of common assault, 285, 286. 
 
 jury cannot convict of distinct assault, 286, 286 — 1. 
 
 when excusable, 286 — 1. 
 ASSAULT WITH INTENT- TO ROB, 
 
 statutes of the several states, 425—1, 425—2. 
 
 English statutes considered, 425—2 to 427. 
 ASSEMBLY,— See Unlawful Assembly. 
 ATTACK, 
 
 with intent to maim or kill, 263, 279. 
 ATTEMPT TO PROCURE ABORTION, 
 
 death from, 321-9 to 321-11. 
 ATTEMPT TO COMMIT OFFENCE, 
 
 how punished, 20, 20—1. 
 
 in Maine, 258—1. 
 
 in Massachusetts and Michigan, 258—1, 258-2. 
 
 in New York and Virginia, 258—2. 
 
 in Georgia, 258—3. 
 
INDEX TO THE NOTES. 205—9 
 
 ATTEMPT TO COMMIT RAPE, 
 
 in Massachusetts, New York, Ohio and Virginia, 308. 
 
 in Michigan, 308, 308—1. 
 
 in Georgia, Vermont, Maine, Wisconsin and Texas, 308 — 1. 
 
 in Oregon and Iowa, 308 — 2. 
 
 nature of; 308—2. 
 
 whether boy under fourteen can commit, 308 — 2, 308 — 3. 
 
 need not be a direct attempt at violence, 308 — 3. 
 
 in Mississippi, 308 — 3. 
 
 conviction for good bar to indictment for offence itself, 308 — 3, 308 — i. 
 
 Indictment, 308—4 to 309. 
 ATTORNEY, 
 
 when struck off the rolls, 186. 
 
 B 
 
 BACKING "WARRANTS, 
 
 how regulated in the several states, 33 — 5, 34. 
 BAIL, 
 
 definition, 55. 
 
 act of congress relative to, 55. 
 
 in the several states, 55 to 55 — 3. 
 
 duty of magistrates in relation to, 55 — 2 to 5T. 
 
 surrender of party under, 51 — 1. 
 
 notice of, 51 — 3. 
 
 authority of over principal, 51 — 4, 58. 
 
 discharge of, 58. 
 
 right of action against accused, 58. 
 
 special provision, relative to, in Ohio," 58, 58 — 1. 
 BAILEES, 
 
 larceny by, 382 to 386—1. 
 BANK BILLS, 
 
 larceny of, 393—2 to 394—3. 
 BARRATRY, 
 
 defined, 630. 
 
 in South Carolina, 630 — 1. 
 
 indictment, 630 — 1. 
 
 in New York and Massachusetts, 630 — 1. 
 
 punishment, 630 — 2. 
 BASTARDY, 
 
 definition, 299—1. 
 
 how defined by statute of New York, 299 — 1. 
 
 by the civil law, 299 — 1. 
 
 act of Alabama, 299 — 1. 
 
 what states follow the civil law, 299 — 2. 
 
 evidence, 299—2 to 299—4. 
 
 husband's inability, 299—2. 
 
 non-access to wife, 299—2, 299—3. 
 
 child born out of due time, ,299—3, 299—4. 
 
 open coliabjtation with another man, 299 — 4. 
 
 nature of the prosecution, 299 — 5 to 299*— 8. 
 
 by whom prosecution maintained, 299 — 8 to 299 — 10. 
 
 witnesses, 299—10 to 299—13. 
 
 who chargeable, 299 — 13. 
 
 maintenance, 299—13, 299—14. 
 
205—10 INDEX TO THE NOTES. 
 
 BASTARDY— continued, 
 
 the security, 299—14, 299—16. 
 
 custody of child, 299 — 15. 
 BAWDY HOUSE, 
 
 defined, 609—81. 
 
 deemed a nuisance, 609 — 87. 
 
 what constitutes, 609—88, 609—89. 
 
 indictment, 609—89, 609—90. 
 BIGAMY, 
 
 defined, 609— 141, 610. 
 
 punishment in New York, 610, 610—1. 
 
 punishment in most of the states, 610 — 1. 
 
 when committed, 610 — 1, 610 — 2. 
 
 in North Carolina, 610 — 2. 
 
 after divorce, 610—2, 610—3. 
 
 in South Carolina and Virginia, 610 — 3, 611. 
 
 in Maine, Massachusetts, and Michigan, 611. 
 
 venue, 611, 611—1. 
 
 proof, 611—1, 611—2. 
 BILL OP EXCEPTIONS, 
 
 provisions of N. T. Eev. Sts., relative to, 111—1, 111—2, 194—6 to 194—9. 
 
 in Massachusetts, 111 — 2. 
 
 in Maine, Mississippi, Virginia, and Michigan, 171 — 2, 111 — 3, 194 to 194 — IS 
 
 in Vermont, 111—3, 194—11. 
 
 how settled, 111 — 4. 
 
 what to contain, 171 — 4. 
 
 in Wisconsin, 194—12, 194—13. 
 BILL OF EXCHANGE, 
 
 must be complete for forgery of acceptance, 541 — 2. 
 BLASPHEMY, 
 
 how regarded spiritually, 318 — 7. 
 
 how cognizable by municipal laws, 318 — 1, 318 — 8. 
 
 importance of legal restraints, 318 — 8. 
 
 was an offence at common law, 318 — 8. 
 
 enumeration of English cases, 318 — 8 to 319 — 1. 
 
 in the several states, 319—1 to ,322— 6. 
 BOOKS, 
 
 of corporation, how far evidence, 141 to 141 — 4. 
 See Loa Book. 
 BREACH OF PRISON AND ESCAPE, 
 
 definition, 630—10. 
 
 by party himself without force, 630—10, 630—11. 
 
 of escapes suffered by officers, 630—11 to 630—15. 
 
 Statutes of Penn., Va., and Ohio, 630-23, 630-24. 
 
 in Massachusetts, 630—24, 630—25. 
 
 in New York, 630—24, 630—25. 
 
 in Tennessee, 630 — 25. 
 
 in Arkansas and South Carolina, 630—26. 
 
 of escape suffered by private persons, 630—15, 630—16. 
 
 prison breaking by the party confined, 630—16, 630—19. 
 
 of rescue, 630-19, 630-20. 
 BREAKING,— See Bdr&laRY. 
 BRIBERY, 
 
 deflnition, 610—4. 
 
 nature of the offence, 610—5. 
 
INDEX TO THE NOTES. 205—11 
 
 BRIBERY— continued.' t 
 
 in England, 5fD— 5. . 
 
 in Massachusetts, 510 — 5, 510 — 6. 
 
 in Michigan and New York, 510 — 6. 
 
 in Pennsylvania, 510 — 6 to 570 — 8. 
 
 in Virginia, 510---8. 
 
 in Ohio, 570-^8,. 570— 9. ';, ;';, 
 
 in Maryland, 570—9, 570—10. '^j' ' 
 
 in Georgia, 570—10. 
 BRIDGES, 
 
 nuisance to, 609—29 to 609 — 31, 
 
 liability of county to repair, 609—31, 609—32. 
 
 liability to repair approaches, 609 — 32, 609 — 33 
 BUILDING, 
 
 how described in burglary, 330 — 1. 
 
 how far it must be inhabited to constitute burglary, 332 — 1 to 333 — 1. 
 
 as to ownership of, in burglary, 333 — 2 to 336. 
 
 must be house of another to constitute arson, 493—2 to 493 — 14. 
 See Arson, — Burglary. 
 BURGLARY, 
 
 statutes of the several states, 328. — 1 to 330. 
 
 definition, 330. 
 
 origin and nature, 330. 
 
 at common law, must take place in mansion or dwelling-house, 330 — 1. 
 
 building, how described, 330 — 1. 
 
 in what place it may be committed, 330 — 1 to 332 — 1. 
 
 how far the house must be inhabited, 332—1 to 333 — 1. 
 
 as to the ownership of the house, 333 — 2 to 336. 
 
 at what time it must be committed, 336 to 336 — 2. 
 
 there must be both a breaking and entering, 336 — 2 to 339 — 1. 
 
 what entering necessary to constitute, 338 — 4 to 339 — 1. 
 
 there must be a felonious intent, 339 — 1 to 340. 
 
 intent, how laid in the indictment, 340 — 1 to 340 — 2. 
 
 defendant may be convicted of larceny, 340 — 2 to 341 — 1. 
 
 one may be convicted of the burglary, and the other of the larceny, 340 — 2, 341. 
 
 breaking out of house, 341 — 3. 
 
 breaking, entering and stealing, 344 to 350 — 1. 
 
 breaking into church, with intent to commit a felony, 350 — 2. 
 BURNING,— See Arson. 
 
 C 
 
 CAPTION, 
 
 to indictment defect in, how remedied, 78. 
 
 amendment of, 18, 18 — 1. 
 CARNALLY KNOWING GIRL UNDER TEN YEARS OP AGE, 
 
 evidence should be clear and distinct, 311, 312. 
 
 competency of child as. a witness, 312. 
 
 should be concurrent testimony, 312. 
 
 difference between consent and submission, 312 — 1. 
 
 defendant may be found guilty of intent only, 312 — 1. 
 
 indictment, 312 — 1. 
 CATTLE, 
 
 killing or wounding, 4.01. 
 
205—12 INDEX TO THE NOTES, 
 
 CERTIORARI, 
 
 in Massachusetts, 194 — 2 to 194 — 4. 
 in New York, 194—5 to 194—9. 
 in Maine, 194—9 to 194^2, 
 
 in Tennessee, Maryland, North Carolina and Georgia, 194—13, 194 — 14. 
 
 in Ohio, New Jersey, and'Pennaylvania, 194 — 14. 
 CHALLENGE, « j>, _, 
 
 of grand jurors, 161— 10, 161— 11,^, • 
 
 of jurors, 163 to 163—5. 
 
 peremptory, 163—6 to 164—2. 
 
 opinions of jurors, forming ground of, 164 — 2, 164 — 3. 
 
 how tried, 164—3, 164 — i. 
 
 oath to triers, 164 — 4, 164—5. 
 
 oath to juror, 164 — 5, 164 — 6. 
 CHALLENGING TO FIGHT,— See Duelling and Challenging to Fight. 
 CHARACTER, 
 
 evidence of, 165—1, 165—2. 
 CHARGE, 
 
 of judge, 111, 1U— 1. 
 CHAMPERTY,— See Maintenance and Champerty. 
 CHEATS, 
 
 statutory in England, 464 — 4 to 411 — 3. 
 
 statutory in the United States, 412—1 to 413— 9. 
 
 in Massachusetts, 412—1 to 413—1. 
 
 in New York, 413—1 to 413—3. 
 
 in Maryland, 413—3, 413—4. 
 
 in North Carolina, 413—4. 
 
 in South Carolina and Virginia, 413—5. 
 
 in Tennessee, 413 — 5, 413 — 6. 
 
 at common law, 413—9 to 413—18. 
 CHILD, 
 
 custody of, in bastardy, 299 — 15. 
 
 competency of as witness, 312. 
 CHURCH, 
 
 breaking into, with intent to commit felony, 350—2. 
 
 riotously beginning to demolish, 494 to 495. 
 CITIZEN, 
 
 who is, 8 — 2. 
 
 becomes so by naturalization, 8—2. 
 
 children of, born abroad, 8—3. 
 
 may suppress riot, 25—2. 
 CIVIL LAW, 
 
 bastardy defined by, 299—1. 
 
 what states follow, in bastardy, 299-2. 
 
 kidnapping by, 300—4. 
 
 CLERKS, 
 
 larceny by, 442 to 446. 
 
 COERCION 
 
 when it excuses from the commission of crime, 6-2. 
 when wife presumed to act under, 6—2. 
 rule with regard to offences below the degree of felony, 6-3. 
 when presumption of repelled, 1. 
 
 00I !f U. S. acts of Congress relative to forging or altering, 13. 
 
 , trial for counterfeiting, must be produced, 518. 
 
* 
 
 P INDEX TO THE NOTES. 205—13 
 
 «* 
 
 "COIN — continued, 
 
 |fe larceny of 393 — 1, 393—2. 
 
 TOMMITMENT, " \W'4. *'' 
 
 generally^ to 45— 2?^5v 
 •' formof, 47 toi^-4^3 
 .COMMON LAWV/Tt 
 
 mayhem at, 264, 264—1. 
 ^ official misconduct at, 463, 463—1. 
 
 perjury at, 592—6, 592— 7. 
 
 piracy at, 482—1 to 482—3. ' '",';' 
 
 restitution of stolen goods at, 192, 192 — 1. 
 
 threatening letter at, 326 to 326—2. 
 
 treason at, 
 
 treason, how divided at, 567. 
 
 period of majority by, 4. _ - , » 
 
 particularity of statement required by, in 1 murder, 201 to 207 — 4. 
 
 indictment and trial of accessories, atj: 18. 
 
 competency of witnesses at, 150 — 1. 
 
 burglary at, -must take place in mansion or dwelling house, 330 — 1. 
 
 cheats at, 473— 9 to 473—18. 
 
 property in game, at, 405 to 406. 
 
 information at, 63 — 2. , , <• ' 
 
 kidnapping at, 300 — 4. 
 
 threats at, 428—2, 428—3! 
 COMPLAINT, 
 
 to magistrate of offence, 30 to 31 — 2*. 
 COMPOUNDING FELONIES, v 
 
 definition and nature, 623—9, 623—10. 
 
 in Massachusetts, 623—10, 623—11. 
 
 in New York, New Jersey, Termont, New Hampshire and Delaware, 623 — 11. 
 
 proof, 623—11, 623—12. 
 COMPROMISE, 
 
 in what cases allowed, 188. 
 CONCEALING DEATH OF BASTARD CHILD, 
 
 statutes of Massachusetts and Michigan, 297. ' ' 
 
 statute of Pennsylvania, 297, 297 — 1. 
 
 statutes of New York, Connecticut, Vermont and New Jersey, 297 — 1. 
 
 statutes of Maine and Wisconsin, 297 — 2. 
 !in-.England, 297— 2 to 297— 4. 
 
 proof in Pennsylvania, 297—4. 
 
 in North Carolina, 297—5, 297 — 6. 
 tin South Carolina, 297 — 6. 
 CONFESSION, 
 
 reluctance of courts in receiving, 110. 
 
 how made, 110. 
 
 when admissible in evidence, 125 etseq. 
 
 must not be extorted, 125 — 6 to 131. 
 
 when evidence, 128 — 3 to 132. 
 
 generally, 125 to 132. • 
 CONSPIRACY, 
 
 murder in, 211—1 to 211—3. 
 
 statutes of the several states, 615 — 12 to 616 — 2. 
 
 definition, 616— -2. ... 
 
 observations of Mr. Talfourd, respecting, 616—2. 
 
 mat of. 616.— 2. 
 
205 — 14 INDEX TO THE NOTES. 
 
 CONSPIRACY— conlinwd, 
 
 in Maryland, 616 — 3. 
 
 meaning of, as used in 33 Edw. 1. 
 
 in Massachusetts, 617 to 618—2. 
 
 in New York, 618—2 to 619—3. 
 
 in Pennsylvania, 619—3 to 621. 
 
 in Alabama, 621. 
 
 in New Jersey, 621. 
 
 in Maryland, 621, 621—1. 
 
 in South Carolina, North Carolina, Tirginia and Maine 621—1 
 * proof, 621—1 to 623—1. 
 
 'constable, 
 
 • must hand over warrant or commitment to jailer, ±1— 3. 
 
 should get receipt for prisoner from jailer, 47—3. 
 
 office of, either ministerial or original, 23 2. 
 
 power.and duty to arrest, 23—2 to 26—1. 
 
 may break open doors to take felon, 24—1, 29. 
 
 duty after arresting offender, 24 — 1. 
 
 protection of, in making arrest, 29 — 2, 29 — 3. 
 
 may interpose to prevent breach of the peace, 337 to 33t — 2. 
 CONSTITUTION, 
 
 of U. S. relative to indictment, 63 — 2. --' , ' 
 
 of U. S. relative to search warrants, 34 — 5. 
 
 of IT. S. and the several states gives to the accused the right of counsel, 168 — 4. 
 
 of the several states, in libel, 322 — 36 to 322 — 39. 
 
 of New York, pardon by, 187 — 7. 
 CONSTITUTIONALITY, as 
 
 of prohibitions against tippling houses, 609 — 69 to 609 — 72. 
 CONTEMPT, 
 
 power of courts to punish, 171. 
 
 criminal, of witnesses, 41. 
 CONVICTION, 
 
 concurrence of whole jury necessary to, 173 — 1. 
 
 for less offence than the one stated in indictment, 119 to 124 — 3, 361 — 2, 361 — 3. 
 
 nature and requisites, 60 — 1 to 61. 
 
 plea of former conviction, 114, 114 — 1. 
 
 former conviction how proved, 142 — 3, 143, 165, 165 — 1. 
 
 second, in New York, 185, 185 — 1. 
 
 second, in Michigan, 185. 
 
 in indictment for burglary, defendant may be convicted of larceny, 340 — 2, 341 — I. 
 
 judgment given, soon after, 180. 
 CORPORATION, 
 
 evidence of, 146 — 2. 
 
 books of, how far evidence, 147 to 147 — 4. 
 
 seal of, how proved, 146—2. 
 CORPUS DELICTI, 
 
 rule relative to, in murder, 208—2, 208—3. 
 
 COSTS, 
 
 to officers, '186—1. 
 
 to officers at common law, 186—1. 
 
 in New York city and county, 186—1. 
 
 to officers in Tirginia, 186—1. 
 
 to the prosecutor, 186—1, 186—2. 
 
 against prosecutor, 186—2, 186—3. 
 
 liability of defendant to pay, 186—3, 186—4. 
 
INDEX TO THE NOTES. 205—15 
 
 COSTS— continued, 
 
 punishment mitigated upon payment of, 189. 
 COUNSEL, 
 
 party accused, entitled to, 168 — 4. 
 COUNTERFEITING, 
 
 indictment, 511 — 1 to 575. 
 
 counterfeit coin, 575 to 571 — 7. • 
 
 guilty knowledge provable by circumstances, 577 — 1 to 577 — 9. 
 
 presumption of guilty knowledge, how rebutted, 577 — 9, 577 — 10. 
 
 proof of uttering other counterfeits admissible, 577 — 10, 578. 
 
 coin to be produced, 578. 
 COURT, 
 
 how opened, 161 — 9, 161—10. 
 
 process for bringing defendant into, 102 — 4. 
 
 right to instruct jury, 171, 171 — 1. 
 
 judgment rendered by, 180 — 1. 
 COURTS, # 
 
 decisions of U. S. relative to treason, 567 — 2 to 569 — 1. 
 
 jurisdiction of U. S. in murder, 208, 208—1. 
 
 jurisdiction of U. S. over crimes and offences, 66 to 67 — 2. 
 
 reluctance of in receiving confession, 110. 
 
 power of U. S. in granting new trial, 178 — 1 to 178 — 1. 
 CRIME, 
 
 coercion excuses, 6 — 2. 
 
 attempt to commit, how punished, 20, 20 — 1. 
 
 drunkenness in general, no excuse for, 5 — 1, 609 — 84, to 609 — 86. 
 
 when drunkenness an excuse for, 5 — 1. 
 CRIMINAL PROSECUTIONS, -m^ 
 
 are local in their nature, 51, 52. '*" 
 
 D 
 
 DEAD BODIES, 
 
 offences relating .to, 485 — 36. 
 
 indictable offence to take up for purpose of dissection, 485 — 36. 
 
 English statutes, 485—37, 485—38. 
 
 the preventing being interred, a misdemeanor, 485 — 38, 485 — 39. 
 
 too; Bpeedy interment of, indictable, 485 — 39. 
 
 statute of Massachusetts, 485 — 40. 
 
 statutes of New York, and Ohio, 485 — 41. 
 
 indictment, 485 — 41. 
 
 disinterment of, in Indiana, 485 — 42. 
 
 punishment for offences relating to, 485 — 42. 
 DEAF AND DUMB, 
 
 when received as witnesses, 150 — 4. 
 DEATH, 
 
 punishment of, in the several states, 202 to 202^-5. 
 DEEDS, 
 
 proof of, 148—3 to 149—2. 
 
 when handwriting resorted to, in proof of, 149 — 1 to 149 — 3 
 DEER, 
 
 killing in the several states, 402 to 403 — 1. 
 DEFENDANT, 
 
 right of, to begin, 123— 1 
 0* *& 
 
 M 
 
205—16 INDEX TO THE NOTES. 
 
 DEFILEMENT OE GIRL, 
 in New York, 303—2. 
 
 in Massachusetts, Michigan, Virginia and Maine, 303—3. 
 in Vermont, 303—3, 303 — 4. 
 Mississippi, 303 — 4. 
 New Jersey, 303 — 4, 303—5. 
 DEMURRER, 
 
 derivation, 114 — 3. 
 English practice, 114 — 3 to 116. 
 DEPOSITIONS, 
 
 prisoner may not demand copy, 61. 
 production of, how compelled, 51. 
 DOORS, 
 
 breaking open in making arrest, 24—1 to 29—^1, 244 — 2 to 245. 
 DRUGS, 
 
 what constitutes an administering of) in abortion,, 2.95 — 3. 
 DRUNKENNESS, 
 
 in general no excuse for crime, 5 — 1, 609 — 84 to 609 — 86. 
 when an excuse for crime, 6 — 1. 
 in Massachusetts, 609 — 86. 
 
 in Pennsylvania, Ohio, Connecticut, New Jersey, Maine, Georgia and Virginia, 609— 8 1 ?. 
 ground of divorce, 609 — 81. 
 insanity by, 5 — 1. 
 DUEL, 
 
 liability of seconds in, 12. 
 DUELLING AND CHALLENGING TO FIGHT, 
 is murder when, 235, 236, 236—1. 
 in Massachusetts, 236—1, 236—2. 
 New York, 236—2, 236— 3. X 
 Maryland, 236—3. 
 Georgia, 236 — i. 
 Virginia, 236—4, 236—5. , 
 Michigan, 236 — 6. 
 Pennsylvania, 236 — 6, 236 — 1. 
 Ohio, 236— 1, 236—8. 
 "Wisconsin, 236 — 8. 
 Oregon, 236 — 8. 
 New Jersey, 236—9. 
 Tlrmont, 239-9, 236-10. 
 Mississippi, 236-10, 236—11. 
 jmMiune, 236— 11, 236—12. 
 
 decisions, 236-12 to 236-14. 
 venue, 236/-;14. 
 
 
 140 to 141—1. 
 
 EAVESDROPPERS, 
 who are, 609—136. 
 in Tennessee, 609—136. 
 
W HSPttEX TO'IBEE NOTES. 2Q5-**I7 
 
 BATES DROPPERS— contimi 
 ^#in Pennsylvania, 609—136. 
 
 are nuisance, 609 — 50. t 
 
 ELECTION, 
 
 right of; to what cases confined, 94. 
 
 when prosecutor compelled to elect, 94. 
 EMBEZZLEMENT, 
 
 statutes of the several states, 446 to 447 — 3. 
 
 indictraeDt, 447 — 3. to 452—2. 
 
 English statutes, 448—5, 449. 
 
 definition, 449, 449 — 1. 
 
 by whom committed, 449 — 1 to 449 — 9. 
 
 English cases, 451, 452. 
 
 money must be received or taken into possession, 451, 452. 
 
 money must be received on account of master, 452 — 2, 453. 
 
 money must be received by virtue of employment, 453 to 454 
 
 proof of, 455 to 457 — 1. _,, 
 
 by bankers or agenta^460 to 460 — 3. 
 
 by factor or agent, 460 — 4. 
 EMBRACERY, 
 
 in what it consists, 570 — 10. 
 
 in^ Mj §§ash usetts, Vermont, Pennsylvania, Ohio. Connecticut and 'Wisconsin^570r-ll, 
 
 ^."570—12. „, 
 
 , : _., In New Jersey; 570— .11, ^tp^-12. 
 
 Ijc. in Maryland, Georgia, Virginia, Iowa, and OK^on|570 — 12.- 
 
 "endorsement, .,.., ' i _ 
 
 forgery by expunging, 547—2, 54|— 3. 
 ESCAPE. — See Breach of Peisoij and .Escape. 
 EVIDENCE, ..-,,, '"-.' ','''" ' jf. 
 
 in treason, not admissible to proye< distinct offence, '570 — 3, 570 — 4. 
 
 of malicious, mischief, '121 — L ■ '„ •. . : — ' 
 
 against principal, ,123. . ':■ 
 
 against accessories, 18—1, 19. ■'"■' 
 
 mode, of taking by magistrate, upon complaint, 31—2., 
 
 before grand jury, 98—1. " • i< ■ 
 
 truth of, .how tested by .grand jury, 98 — 3. 
 
 for grand jury tq receive, 98 — 3, 
 
 confession, when admissible, 125, et seq. , ■ 
 
 confession must not be extorted, 125—6 to 131. 
 ' confession, when evidence, 128 — 3 to 132. , s ■ 
 
 • . doctrine of, upon criminal prosecutions,' 117 — 2, 118. 
 
 presumption-of iflgoclnce, 1P7— 2, 118m£. , s 
 
 wh|t necessary^'for' prosecution, to prove, 118—2. ffi . * 
 
 when need npj; precisely corresp6nd"withTSaictment, 118 — 2 to 119 — i. 
 
 tiidentify defendant, 118 — 2. 
 
 in^Jarceny, 118—3, 119. 
 
 time, in; general, not material, 119 — 1. 
 
 how far place immaterial, 119 — 2 to 119 — 4. 
 
 when defendant required to show innocence, 118, 118 — 1. 
 
 guilt of prisoner must be shown beyond rational doubt, $.18. 
 
 of prior and subsequent conduct, 119 — 4 to 122 — 1. ' 
 
 for malicious* mischief, 121 — 1. 
 
 of scienter, 122. 
 
 presumption of intention, 121 — 1, 121 — 2. 
 
 where the offence is cumulative, 122 t 122 — 1. 
 
205-^8 INDEX TO THE NO|ES. 
 
 EVIDENCE— continued, 
 
 of previous malice, 122 — 1. 
 
 against principal, in first and second degree, 123. 
 
 of good character, 123 — 2, 123 — 3. 
 
 of name of party, when essential, 123 — 3 to 124 — 2. 
 
 of confession generally, 125 to 132. 
 
 acts-or declarations, 125 — 3 to 131. 
 
 ground of presumptions, 133 to 134 — 1, 212 — 10. 
 
 of public officers, 136 to 137. 
 
 when secondary evidence admissible, 136 — 1 to 138 — 1. 
 
 .dying declarations, 140 to 141. 
 
 of laws, 141—3 to 142. 
 
 of records 142 — 1, 142—2. 
 
 of former conviction, 142 — 3, 143. 
 
 of examined or sworn copy, 143. 
 
 of proceedings in courts of law, not being records, 143 — 1, 144. 
 
 public recorda of other states, 344 — 1. 
 
 N. T. statute, relative to proof of foreign records, 144 — 2, 144 — 3. 
 
 proof of foreign records generally, 144 — 3, -144 — 4. 
 
 printed journals of congress and of state legislature, 144 — 4. 
 
 when copy of public document admissible, 144 — 5. 
 
 register of births, marriages, &c, 145, 145 — 1. 
 
 register of vessels,, J.45 — J., 146. '•:' 
 
 log book of vessels, 146, 146—1. 
 
 of private seals, 146 — 2. 
 
 of corporations, 146 — 2. "* 
 
 books of corporation, 147 to 141 — 4. < 
 
 N. T. statute relative to securing, 147 — 4, 148 — 2. 
 
 of deeds and othejr, private written instruments, 148 — 3 to 149 — 2. 
 
 privileged communications, 153 — 1, 153 — 2. tr '.~ 
 
 of private conviction, 165, 165 — 1.- '■ ■:.'". 
 
 of character, 165^*, 165— 2. 
 
 presumption of guilt from possession of stolen property, 168 — 4. 
 
 definition of presumption, 212 — 11, 212— rl2. ■'_■ 
 
 violent presumption, 212 — 13. '■?,. ' ' __ 
 
 in murder, malice presumed, the fact of killing being proved, 215 to 215 — 6, .226. 
 
 in indictment for duelling, 236—14, 236^15. 
 
 of administration of poison, 256 — 4 to 25.6 — 9. 
 
 moral circumstances in cases of poisoning, 256 — 10, 256—12. ; 
 
 of medical men, 258. , .'CC'.w, ,■ . •'..',._, 
 
 of attempt to poison, 259. 
 
 in indictment for assault, 261 — 9. . , :■< 
 
 in the investigation of wounds, 260 — 5 to 261— 5I2. ' 
 
 in malicious stabbing, 264. 1. , 
 
 in bastardy, 299—2 to 299—4. 
 
 in rape presumption in favor of boy under fourteen, 305 — 4. 
 
 of complaint made by prosecutrix in rape, not admissible, 307 — 4 to 307 — 6. 
 
 as to impeaching character of prosecutrix in rape, 307 — 7 to 307 — 11. 
 
 of good character of prosecutrix, 307 — 11. 
 
 medico legal questions in rape, 307 — 16 to 308. 
 
 in sodomy, 309 — 2. 
 
 in indictment for carnally knowing girl under ten years of age, 311, 312. 
 
 in libel necessary to prove publication within particular county, 322 — 17. 
 
 privileged communications in libel, 322 — 18 to 322 — 25. 
 
 in behalf of prosecution in libel, 322—28, 322—32. 
 
INDEX TO THE NOTES. 205—19 
 
 h" 
 
 EVIDENCE— continued, 
 
 in defence, in libel, 322—32 to 322—35. ^ 
 
 presumptive evidence in larceny, 369, 310 — 2. ■rPtas, 
 
 in larceny generally, 314—1 to 380. ■^*" -" -'- ' 
 
 of felonious intent in larceny, 381, 381 — 1. 
 
 in extortion, 463 — 24, 463 — 25. 
 
 in indictment for receiving stolen goods, 416 — 1, 481. 
 
 of slave trade, 485—22, 485—23. 
 
 of malicious injury, 508 — 5, 508 — 1. .,- 
 
 in forgery, 541—21 to 541—26.. ",, 
 
 secondary evidence in forgery, 554 — 1, 555. 
 
 in counterfeiting, guilty knowledge provable by circumstances, 511 — 1 to 511 — ifi 
 
 presumption of guilty knowledge, in counterfeiting, how rebutted, 511 — 9, 511 — 10. 
 
 proof of uttering other counterfeits admissible, 511 — 10, 518. 
 
 coin to be produced, 518. 
 
 of smuggling, 583. 
 
 of riot, 590— 8 to ,591— 3. 
 
 in affray, 591 — 4. , 
 
 in perjury, 601 to 606 — 3 
 
 in indictment for keeping tippling house, 609 — 80 to 609 — 84. 
 
 of gaming, 609—129, 609—130. 
 
 of bigamy, 611— 1, 611— 2. -*' 
 
 in assault and battery not necessary to prove that defendant used all the 'weapons .de- 
 scribed, 261 — 9. 
 EXAMINATION, 
 
 of witnesses, 161 — i to 168 — 2. 
 
 of prisoner, 43 to 45. 
 EXCEPTIONS,— See Biil cot Exceptions. 
 EXECUTION, 
 
 of malefactors, 221 — 13. 
 EXILE, 
 
 punishment by, 182 — 1, 182—8. 
 EXTORTION, 
 
 deBnition, 463—14 to 463—16. 
 
 statutes, of the several states, 463 — 16 to 463 — 21. 
 
 in Massachusetts, 463 — 22. 
 
 in New York, 463—22. 
 *4 V in Pennsylvania, North Carolina, and Indiana, 463 — 23. 
 
 in Ohio and Maryland, 463 — 24. 
 
 proof, 463—24, 463—25. 
 EXTRADITION, 
 
 treaties of, 630—26, 630—21. 
 
 F 
 
 FALSE IMPRISONMENT, 
 
 what constitutes, 292 to 293—1. 
 
 words may constitute, 293. 
 
 allegation in indictment, 293—2. 
 
 in New York, Massachusetts, and New Jersey, 293 — 2. 
 
 in Texas and Georgia, 293 — 3. 
 FALSE PRETENCES, 
 
 statutes of the several states, 463 — 26 to 464 — 4. 
 
 in England, 464—4 to 412. 
 
 statutory in the U. S., 412—1 to 413—9. 
 
505— r20 INDEX TO THE NOTJEa* 
 
 EALSE PRETENCES— continued, 
 
 in Massachusetts, 452-— 1 to 453 — 1. . 
 
 in NaJpSgrk, 453— 1 to 453— 3. ^ff 
 
 in Maryland, 453—3, 453-4*. 
 I in NorttH^arolina, 453 — 4. 
 
 in &uth Carolina, and Virginia, 453 — 5. 
 J* in Tennessee, 453—5, 453—6. 
 T'EAR,^ 
 *~^ to do unwarrantable action, 10— -1. 
 
 :eelont, ;', .. 
 
 definiMon, 1. ',jL ' 
 
 by-tbe statutes of most Of the states, 1. 
 .•atinrVirgima, 1; - ..'.-,. t 
 meaning of, in AmerioaMlaV, 185. 
 when misdemeano&merged in, 1. 
 *• judgment againsted'eiendant, in, 113 — 1, 114. 
 'jpjfaecessories in, la: 
 
 , instigator of, ssjiilty,, 14 — 1. 
 ■w.'^^saujt and>raKeij',' with intent to commit, 284: — 1, 286. 
 ■'-^fe^kihgSffi'churchi with Intent to commit, 350 — 2. 
 '^smcMn'pased'f,' 113—1,' 114. 
 
 td&fi&SStting, in the several states, 410 to 411 — 8. 
 SKTRY AND DETAINER, 
 jjjofjthe several states, 354 to 354 — 3. 
 SOwVcommitted, 354 — 3, 354 — 4. 
 the persons who may commit, 354 — 4. 
 in respect to what it may be committed, 354: — 5. 
 the acts which will amount to a forcible entry, 354 — 5, 354 — 6. 
 the acts which will amount to a forcible detainer, 354: — 6 to 354 — 11. 
 indictment, 354 — 11 to 354—13. 
 FORGERY, 
 
 statutes of IT. S., 534 to 534 — 5. 
 
 statutes of the several states, 534 — 5 to 536 — 19. 
 
 indictment, 536—19 to 536 — 38. 
 
 definition, 536—39, 535. 
 
 what constitutes, 535 to 535—2. 
 
 disproving genuineness of paper 535 — 2 to 538 — 2. 
 
 competency of party whose name is forged to prove, 538 — 2. 
 
 explanation of cases cited in the text, 538 — 2 to 544. 
 
 when not necessary to allege intention to defraud, 546. 
 
 of the making or alteration of the written instrument, 646 — 1 to 545 — 1. 
 
 by filling up blank, 545—1, 545—2. 
 
 bill of exchange must be complete for forgery of acceptance, 545 — 2. 
 
 by expunging endorsement, 545 — 2, 545 — 3. 
 
 by fraudulent omission in written instrument, 545 — 3. 
 
 making instrument in man's own name, 545 — 3 to 545 — 6. 
 
 by assuming name of person really existing, 545 — 6, 545 — 5. 
 
 by representing fictitious firm, 545 — 5. 
 
 assuming name of fictitious person, 545 — 5 to 545 — 11. 
 
 by one of three persons having authority, 545—11. 
 
 how far the' validity ih r $i#^the * hm g forged, essential, 545—11, 545--12. 
 
 by false-making of the 1 will ortiving person, 545—14, 545—15. 
 
 the false, 'musttesemble the genuine instrument, 545 — 15 to 545 — 21. 
 
 evidence, 545 — 26. 
 
INDEX TO THE NOTES. 205—21 
 
 FORGERY— continued, 
 
 the uttering, 547—26, 548. 
 
 guilty knowledge and intent, 550 to 652 — 1. 
 
 the instrument, 552 — 1 to 554. 
 
 secondary evidence, 654 — 1, 555. 
 FORMER CONVICTION, 
 
 plea of, 114, 114—1. 
 
 how proved, 142—3, 143, 
 FORNICATION, 
 
 statutes of the several states, 615 — 6, 615 — T. 
 FINES, 
 
 nature of, 186. 
 
 when employed, 186. 
 FRAUDULENT INSOLVENCY, 
 
 statutes of the several states, 481 — 10 to 481 — 15. 
 
 English statutes, 481 — 13 to 481 — 19. 
 FUGITIVE FROM JUSTICE, 
 
 surrendering of, 33 — 3 to 33 — 5. 
 
 treaties relative to, 33 — 3, 33 — 4. 
 
 law of New York, 33 — 5. 
 
 statutes of U. S. relative to, 630 — 6. 
 
 statutes of the several states, 630 — 6 to 630 — 10. 
 
 G 
 
 GAME, 
 
 killing of, 405 to 405—2. 
 
 property in, at common law, 405 to 406. 
 GAMING, 
 
 statutes of the several states, 609—90 to 609—108. 
 
 decisions of the courts of the several states, 609 — 108 to 609 — 119. 
 
 proof, 609—119, 609—120. 
 GIRL, 
 
 defilement of, 303—2 to 303—5. 
 
 unlawful carnal knowledge of, 311 to 312 — 1. 
 GOVERNMENT, 
 
 libel on, 322—10, 322—11. 
 GRAND JURY, 
 
 indictment, how submitted to, 98. 
 
 finding of, how endorsed, 98 — 4. 
 
 indictment brought into court by, 98 — 4, 99. 
 
 witnesses before, how sworn, 98. 
 
 effect of witnesses before not being regularly sworn, 98, 98 — 1. 
 
 evidence before, 98 — 1, 98 — 2. 
 
 how to test the truth of testimony, 98 — 2. 
 
 kind of evidence they are to receive, 98 — 3. 
 
 finding, 98 — 4. 
 
 protected in discharge of duty, 98-^-4. t 
 
 under the control of the court, 98 — 4. 
 
 when required to disclose testimony, 99. 
 
 how returned, summoned, &c, 160 — 5 to 161—4. 
 
 how called, sworn, and charged, 161 — 4 to 161 — 6. 
 
 their deliberations, 161—6 to 161—9. 
 
 challenge to, 161—10, 161—11. 
 
 when names of witnesses returned by, 168 — 3. 
 VOL. I.— C 
 
205 — 22 INDEX TO THE NOTES. 
 
 GUILT, 
 
 of prisoner, must be shown beyond rational doubt, 118. 
 
 plea of not guilty, 123 — 1. 
 GUILTY KNOWLEDGE, 
 
 in forgery, 650 to 562 — 1. 
 GUNPOWDER, 
 
 nuisance by, 609 — 33 to 609 — 40. 
 
 H 
 
 HABEAS CORPUS, , 
 
 nature and purposes of, 41 — 4. 
 
 when prisoner entitled to, 41 — 3, 4*7 — 4. 
 HAWKERS AND PEDLARS, 
 
 statutes of the several states, 609 — 123 to 609 — 128. 
 
 decisions,. 609— 128y 609— 129-. 
 HANDWRITING, 
 
 when resorted to, in proof of deeds, 149 — 1 to 149 — 3. 
 HIGHWAY,— See Public Highway. 
 HISTORY, 
 
 of poisoning, 255 — 1 to 256 — 1. 
 
 of the law of libel, 316 to 318. 
 HOMICIDE, 
 
 by officers in making arrest, 221 — 13 to 222 — 2. 
 
 by officers in dispersing riot, 223. 
 
 by jailers and their assistants, 223 — 1. 
 
 in self defence, 224 to 224—7. 
 
 upon unfortunate necessity, 224 — 8 to 225. 
 
 in defence of friend or property, 225 — 2 to 225 — 6-. 
 
 under provocation, 226 — 1 to 229 — 2. 
 
 of slaves, 229—2 to 229— 1. 
 
 in case of sudden combat, 229 — 1 to 235. 
 
 See Justifiable Homicide, Murdek, Manslaughter. 
 HOUSE OP ILL EAME,— See Bawdy House. 
 HUE AND CRY, 
 
 what, 28. 
 
 how raised, 28, 28—1. 
 
 what done on pursuit, 28 — 1. 
 HUSBAND AND WIPE, 
 
 rule as to receiving them as witnesses, 162, 153, 
 
 IGNORANCE, 
 
 of law, will not excuse, 10—1. 
 IDENTITY, 
 
 of defendant, how shown, 118—2. 
 
 IDIOT, 
 
 definition, 4 — 4. 
 
 by presumption of law, 4 — 4. 
 
 incapable of committing crime, 4 — 4. 
 
 presumption of law as to one born deaf, dumb, and blind, 4—4. 
 
 when jury impannelled to try idiocy, 4—5. 
 
 in New York, 4—5. 
 
 in Massachusetts, 4 — 6. 
 
 in Pennsylvania, 4 — 5, 5. 
 
INDEX TO THE NOTES. 205— 2S 
 
 IDLE PERSONS, 
 
 collecting crowds of, 609 — 44, 609 — 45, 
 ILLEG-AL TOTING, 
 
 in Maine, 623 — 1. 
 
 in Delaware, 623—1, 623—2. 
 
 in Indiana, North Carolina, and Tennessee, 623 — 2. 
 
 proof, 623—2 to 623-— 4. 
 
 statute of 'Wisconsin, 623 — 4. 
 
 in Michigan, 623 — 4, 623—5. 
 
 in New Jersey, 623 — 5. 
 
 in Vermont, 623—5, 623 — 6. 
 
 in Maine, Georgia, and Virginia, 623 — 6. 
 
 in New York, 623—7. 
 IMPRISONMENT, 
 
 sentence of, in New York, 204. 
 
 in Massachusetts, 204 to 204 — 3. 
 
 in Maine, 204 — 3. 
 
 in Pennsylvania, 204—3, 204 — 4. 
 
 in Michigan, 204 — 4, 204—5. 
 
 punishment by, 182 — 9. 
 
 in state prison in New York, 182 — 9 to 183 — 9. 
 
 in state prison in Massachusetts, 183 — 8, 183 — 9. 
 
 in state prison in Maine and Ohio,- 183 — 9. 
 
 in Michigan and "Wisconsin, 183 — 10. 
 
 upon conviction of two or more offences, 186. 
 INCEST, 
 
 statutos of the several states, 615 — 8 to 615 — 11. 
 
 in Massachusetts, 615 — 11. 
 
 in Pennsylvania, 615 — 11. 
 
 statute of Iowa against, 615 — 11. 
 INDECENT ASSAULT, 
 
 may be without direct attempt at violence, 313, 313 — 1. 
 INDICTMENT, 
 
 what offences subject to, 2, 2 — 2. 
 
 definition, 63—2. 
 
 Constitution of U. S. relative to, 63 — 2. 
 
 caption, 76, 76 — 1. 
 
 preface to bill of, 76 — 1. 
 
 name of place and county, 76 — 1 to 85 — 2. 
 
 what it must show, 76 — 2 to 84 — 1. 
 
 defect in caption, how remedied, 78. 
 
 amendment of caption, 78, 78 — 1. 
 
 name of defendant, how stated, 78 — 1 to 83. 
 
 as to addition of residence of defendant, 78 — 3. 
 
 against corporation, 79. 
 
 where the names of offenders cannot be ascertained, 81, 81 — 
 
 how far certainty in required, 81 to 90 — 2. 
 
 effect of variance in name, 82, 83. 
 
 allagation of time, 84 — 1, 85. 
 
 general rules, 85—2, 86—2. 
 
 statement of statute, 86 — 2. 
 
 intent, how laid, 86 — 4, 87. 
 
 terms usually employed, 92 to 93. 
 
 introduction of several counts, 93—1, 93—2, 175, 361 to 361- 
 
205 — 24 INDEX TO THE NOTES. 
 
 INDICTMENT— continued, 
 
 rule as to joinder of offences, 93 — 2, 94 — 3 to 96 — 1. 
 
 proof of, 94. 
 
 conviction under, of part of offence charged, 94 to 94 — 2. 
 
 duplicity, 96, 96 — 1. 
 
 joinder of several offences in one count, 96, 96 — 1. 
 
 joinder of several persons, 96 — 1 to 97 — 1. 
 
 proper course when parties are joined, 96 — 3. 
 
 by whom drawn, 97 — 1. 
 
 how submitted to grand jury, 98. 
 
 names of witnesses to be marked on, 98. 
 
 endorsement of finding of grand jury, 98 — 4. 
 
 brought into court by grand jury, 98 — 4, 99. 
 
 defendant entitled to a copy, 99 — 1. 
 
 validity of, in the several states, 101, 101 — 1. 
 
 when quashed, 101—1 to 102—3. 
 
 conviction under, for leas offence than the one stated, 119 to 124 — 3. 
 
 statement of time, in general, not material, 119 — 1. 
 
 when statement of place immaterial, 119 — 2 to 119 — 4. 
 
 proof of, for malicious mischief, 121 — 1. 
 
 in larceny, joinder of several articles, 123. 
 
 what evidence requisite to support, against principal, 123. 
 
 when name of party essential, 123 — 3 to 124 — 1. 
 
 process upon, 161 — 9, 161 — 10. 
 
 when cured by verdict, 176 — 31, 178 — 32. 
 
 whatever is essential to sustaining must be expressly found, 178 — 32. 
 
 removal of, after trial, and before judgment, in New York, 194 — 6 to 194 — 9. 
 
 in murder, advantages of modern English statute, 206 — 2. 
 
 particularity of statement required at common law, in murder, 207 to 207 — 4. ' 
 
 general requisites of in murder, in TJ. S., 207 — 4 to 207 — 9. 
 
 setting forth name of deceased, 207 — 8 to 212 — .14. 
 
 venue, how stated, 207 — 9. 
 
 how laid in murder, 207—9, 208. 
 
 in manslaughter, 254 — 7, 255. 
 
 for assault, with intent to murder, 262 — 3. 
 
 for murder by shooting or cutting another, 265 — 4. 
 
 for wounding, with intent to murder, 266, 267. 
 
 for shooting, with felonious intent, 270 — 1 to 275. 
 
 for attempt to drown, 276, 277. 
 
 for false imprisonment, 293 — 2. 
 
 for abortion, 295 — 4, 295—6. 
 
 for concealing death of bastard child, 297 — 4, 297 — 5. 
 
 in rape, 307—12, 307—14. 
 
 against aiders and abettors in rape, 307 — 14, 307 — 16. 
 
 for attempt to commit rape, 308 — 4 to 309. 
 
 for sodomy in Maryland, 309 — 3. 
 
 for carnally knowing a girl under ten years of age, 312 — 1. 
 
 in libel, 322—25, 322—28. 
 
 intent, how laid in burglary, 340 — 1, 340 — 2. 
 
 in forcible entry and detainer, 354 — 11, 354 — 13. 
 
 in larceny, taking and carrying away, must both be stated, 355 — 16, 355 — 17. 
 
 description of property in larceny, 355 — 18, 355 — 20. 
 
 description of money, 355 — 21, 356. 
 
 stolen animals, how stated, 356, 356 — 1. 
 
 statement of value, 356—1 to 364. 
 
INDEX TO THE NOTES. 205—25 . 
 
 INDICTMENT— continued, 
 
 ownership of things stolen, how stated, 357 to 358. 
 
 for larceny, where there is only a special property in the goods) 358 to 358 — 6. 
 
 name of thief, 358—6. 
 
 for larceny, where the owner of the property is unknown, 358 — 6, 358 — 1. 
 
 for larceny, where the owner of the property is dead, 359, 359 — 1. 
 
 where the property stolen is vested in a body of persons, 359 — 1. 
 
 statement of name of preseoutor, in larceny, 360. 
 
 in robbery, 417 — 1 to 417 — 3. 
 
 in embezzlement, 447 — 3 to 452 — 2. 
 
 for receiving stolen goods, 481 to 481 — 9. 
 
 for slave trade, 485—20, 485—22. 
 
 for offences relating to dead bodies, 485 — 41. 
 
 for malicious injury, 507 — 3 to 508 — 5. 
 
 in forgery, 536—19 to 536—38. 
 
 for counterfeiting, 571 — 1 to 575. 
 
 for perjury and subornation of perjury, 592 — 7 to 593 — 15. 
 
 for lotteries, 609—65 to 609—68. 
 
 for tippling houses, 609 — 72 to 609—84. 
 
 for bawdy house, 609—89, 609—90. 
 
 for adultery, 615—2 to 615—6. 
 
 of principal, 13 — 1. 
 
 of accessories, 16, 16 — 1. 
 
 when evidence need not precisely correspond with, 118 — 2 to 119 — 4. 
 
 jury must find all that is essential to the sustaining, 178 — 32. 
 
 conclusion of 16—1, 17, 92—3 to 23—1. 
 
 when it must conclude against form of statute, 16 — d, 17. . 
 
 INFANT, 
 
 who is, 3. 
 
 full age of man or woman, 3. 
 
 when exempt from punishment, 3. 
 
 capacity of doing ill, how measured, 3 — 4. 
 
 when privileged by reason of non age, 3. 
 
 when incompetent to discern evil, 3. 
 
 when within the age of possible discretion, 3 to 4 — 1. 
 
 period of majority by the civil law, 4. 
 
 period of majority by English common law, 4. 
 
 majority by the ancient Saxon law, 4. 
 
 when punished for felony, 4 to 4 — 3. 
 
 general liability to criminal punishment, 4 — 3, 4 — i. 
 
 destruction of unborn, 211—6 to 212—2. 
 
 criminal modes of destroying, 212 — 2 to 212 — 12. 
 
 how far capable of crime, 206 — 1. 
 INFORMATION, 
 
 at common law, 63 — 2. 
 
 in the several states, 63 — 2, 63 — 3. 
 INNOCENCE, 
 
 presumed, until the contrary proved, 117 — 2, 118 — 1. 
 
 when defendant required to show, 118, 118 — 1. 
 INSANITY, 
 
 by drunkenness, 5 — 1. 
 
 when it excuses all acts, 6. 
 
 discussion relative to, in the House of Lords, 6 to 6 — 2. 
 
 how far a defence in criminal prosecutions, 11 to 11 — 16. 
 
205 — 26 INDEX TO THE NOTES. 
 
 INTENT, 
 
 how laid in indictment, 86 — 4, 81. 
 
 presumption of in law, 121 — 1, 121 — 2. 
 
 to take life, 211 — 5, 218—2. 
 
 must be proved in trial for violent assault, 262 — 1 to 210. 
 
 in murder, by shooting or cutting another, 265—4.- 
 
 how laid in burglary, 340—1, 340—2. 
 
 must be felonious to constitute burglary, 339 — 1 to 340. 
 
 how laid in indictment for burglary, 340 — 1 to 340—2. 
 
 must be wilful and malicious to constitute arson, 493—14 to 494. 
 
 in forgery, 550 to 552 — 1. 
 
 must be felonious in larceny, 366 — 4 to 367 — 1. 
 
 evidence of, in larceny, 381, 381 — 1. 
 INTERMENT, 
 
 too speedy, of dead body, indictable, 485 — 39. 
 
 JAILER, 
 
 duty to receive prisoner, 41 — 3. 
 
 protected from liability, 41 — 3. 
 
 homicide by, 323 — 1. 
 JEWISH LAW, 
 
 kidnapping by, 300 — 4. 
 JOINDER, 
 
 of several offences in indictment, 94 — 3, 95. 
 
 of several offences in one count, 96, 96 — 1. 
 
 of persons in indictment, 96 — 1 to 91 — 1. 
 
 proper course where parties are joined, 96 — 3. 
 JUDGE, 
 
 charge of, 111, 111—1. 
 
 address of, precedes judgment, 180. 
 JUDGMENT, 
 
 definition, 180. 
 
 form of, 180. 
 
 preceded by address of judge, 180. 
 
 defendant must be present, 180. 
 
 given soon after conviction, 180. 
 
 rendered by court in which defendant was convicted, 180 — 1. 
 
 defendant asked if he has anything to say, 180 — 1. 
 
 of supreme court, when defendant convicted at sessions, 180 — 2. 
 
 to pay fine and costs, 180 — 2. 
 upon an indictment against two or more, 180 — 2. 
 proceedings subsequent to, in state of New York, 180 — 2 to 180- 
 in case of treason, 181 to 181 — 2. 
 in case of buggery, 181 — 2, 181 — 3. 
 for rape in several states, 181 — 3 to 181 — 6. 
 against defendant in felonies, 113 — 1, 114. 
 on recognizance, no bar to second prosecution, 51-.-2. 
 JURISDICTION, 
 
 of U. S. in murder, 208, 208—1. 
 
 of U. S. over crimes and offences, 66 to 61 — 2. 
 
 of admiralty, 61 — 1. 
 
 of justice of the peace in criminal matters, 25 — 1, 52, 59, 59 — 1. 
 
INDEX TO THE NOTES. 205 — 27 
 
 JURORS, 
 
 when competent witnesses, 161. 
 
 qualifications, 151, 151 — 2. 
 
 exemptions, 158 to 158 — 2. 
 
 de medieiate lingua, 159 — 1. 
 
 how returned, summoned, &c, 152 — 2 to 160 — 5. 
 
 grand jurors, how summoned, 160 — 5 to 161 — 4. 
 
 challenge of, 163 to 163—5. 
 
 peremptory challenge, 163 — 6 to 164 — 2. 
 
 opinions of} forming ground of challenge, 164 — 2; 164 — 3. 
 
 how challenges to he tried, 164 — 3, 164 — 4. 
 
 oath to triers, 164—4, 164—5. 
 
 oath to juror, 164 — 5, 164—6. 
 
 calling, 161—11, 
 
 swearing, 162. 
 
 rule as to keeping together, 110 to 111 — 5. 
 
 Charge of judge, 111, 111 — 1. 
 
 how to deliberate, 111 — 4, 111 — 5. 
 
 must not be tampered with after they retire, 1T1 — 5. 
 
 in what cases they may be discharged, 112 to 173. 
 
 concurrence of whole, necessary to conviction, 113 — 1. 
 
 practice of polling, 113 — 1. 
 JURY, 
 
 caUing, 161—10. 
 
 swearing, 162. 
 
 rule as to keeping together, 110 to 111 — 5. 
 
 charge of judge, 111, 111—1. 
 
 how to deliberate, 171 — i, 111 — 5. 
 
 must not be tampered with after they retire, 111 — 5. 
 
 in what cases they may be discharged, 112 to 113. 
 
 concurrence of whole necessary to conviction, 113 — 1. 
 
 practice of polling, 113 — 1. 
 
 may acquit defendant of part, and find him guilty of residue, 115 — 1, 116 — 2. 
 
 may acquit some of several defendants, and find others guilty, 116 — 2. 
 
 must find all that is essential to sustaining the indictment, 118 — 32. 
 
 -when directed to re-consider verdict, 194. 
 
 new trial on the ground of improper, 178 — 18, 178 — 19. 
 
 new trial on account of misconduct of, 178 — 19 to 178 — 26. 
 
 whem impannelled to try idiocy, 45 — 1. 
 
 right of court to instruct, 111, 111 — 1. 
 
 de medietate lingwe, when alien entitled to, 159 — 1. 
 JUSTICES OF THE PEACE, 
 
 power in relation to arrest of wrong doers, 24 — 2. 
 
 duty when crime committed out of his presence, 24: — 2. 
 
 derivation of authority, 25. 
 
 when guilty of misdemeanor, 25. 
 
 jurisdiction of, 25—1, 52, 59, 59—1. 
 
 forfeiture of office, 25 — 1. 
 
 must follow statute, 25 — 1. 
 
 may disperse unlawful assembly, 25 — 2, 21 — 1. 
 
 information and complaint before, 31 to 31 — 3. 
 
 power to convict summarily, 60. 
 JUSTIFIABLE HOMICIDE, 
 
 by officers in making arrest, 221—13 to 222—2. 
 
 by officers in dispersing riot, 223. 
 
205 — 28 INDEX TO THE NOTES. 
 
 JUSTIFIABLE HOMICIDE— continued, 
 by jailers and their assistants, 223 — 1. 
 upon unfortunate necessity, 224 — 8 to 225 — 2. 
 in defence of friend or property, 225 — 2 to 225 — 6. 
 
 KIDNAPPING, 
 
 statute of New York, 299—16, 300. 
 
 statutes of Ohio, Georgia, Michigan and Vermont, 300. 
 
 Pennsylvania, 300, 300—1. 
 
 Texas, 300—1. 
 
 Maryland, 301—1, 301—2, 301—3. 
 
 New Jersey and Virginia, 300 — 3. 
 
 Mississippi, 300—3, 300—4. 
 
 at common law, 300 — 4. 
 
 by the Jewish law, 300 — i. 
 
 in the civil law, 300 — 4. 
 
 in the United States, generally, 300 — 4. 
 
 what constitutes in New Hampshire, 300 — 4. 
 
 in Massachusetts, 300 — 4 to 300—7. 
 
 in capturing insurgents, 300 — 7 to 300 — 14. 
 
 persons of color, 303, 303—1. 
 
 LARCENT, 
 
 statutes of the several states, 354 — 16 to 355 — 8. 
 
 venue, 355—13 to 355—17. 
 
 taking and carrying away must both be shown in indictment, 355 — 16, 355 — 17. 
 
 description of property, 355 — 18 to 355 — 20. 
 
 description of money, 365 — 21 to 356. 
 
 of animals, how stated, 356, 356 — 1. 
 
 statement of value, 356 — 1, 364. 
 
 ownership of things stolen, how stated, 357 to 358. 
 
 indictment where there is only a special property in the goods, 358 to 358—6. 
 
 name of tbo thief, 358—6. 
 
 indictment where the owner is unknown, 358 — 6, 358 — 7. 
 
 indictment where the owner of the property is dead, 359, 359—1. 
 
 indictment where the property is vested in a body of persons, 359—1. 
 
 statement of name of prosecutor, 360, 
 
 introduction of several counts, 361 to 361—2. 
 
 verdict must fix value of property stolen, 361—2. 
 
 on indictment for grand larceny, may be convicted of larceny, 361—2, 361—3. 
 
 definition, 361—3, 362—1. 
 
 the taking, 362—1. 
 
 the carrying away, 362—2, 362—3. 
 
 subjects of, 362—3 to 363—1. 
 
 stealing animals in general, 363—2 to 363—4. 
 
 must be against the will of the owner, 364 to 366—4. 
 
 must be a felonious intent, 366—4 to 367—1. 
 
 by stranger and wife, 367—2, 368. 
 
 presumptive evidence, 369 to 370—2. 
 
 where the taking is by the delivery or consent of the owner, 371 to 372—5. 
 
 persons acting in concert, 372 — 5. 
 
 where the delivery is obtained by hiring, 372-5 to 373. 
 
INDEX TO THE NOTES. 205 — 29 
 
 LARCENY — conUniied, 
 
 delivery obtained by fraudulent abuse of legal process, 373 to 373 — 2, 
 
 as to what will amount to, 374 — 1 to 377 — 2. 
 
 evidence to support indictment, 374 — 1 to 380. 
 
 evidence of felonious intent, 381, 381 — 1. 
 
 by bailees, 382-to 386— 1. 
 
 by servants, 386—1 to 387—7. 
 
 by finding, 387—7 to 390— 2. 
 
 identity of goods, 390—3 to 391—1. 
 
 of valuable securities, 391 — 1 to 394. 
 
 of receipt, 392. 
 
 Of coin, 393—1, 393—2. 
 
 of bank bills, 393—2 to 394—3. 
 
 of record, 396, 397. 
 
 of domestic animals, 397 — 1, 399 — 1. 
 
 of wild animals, 397—1 to 399. 
 
 killing cattle with intent to steal, 401. 
 
 stealing in a dwelling house or building, 433 to 433 — 2. 
 
 stealing goods in process of manufacture, 436. 
 
 stealing from a ship or vessel, 437 to 439. 
 
 from a ship in distress, 440, 440 — 1. 
 
 by tenants and lodgers, 440 — 1, 441. 
 
 by clerks or servants, 442 to 446. 
 LAW OF NATIONS, 
 
 libel against, 328—8 to 322—10. 
 LAWS, 
 
 publication of, in New York, 141 — 2,, 141 — 3. 
 
 how proved, 141 — 3 to 142. 
 
 when judicially taken notice of, 142. 
 
 ignorance of, will not excuse, 10 — 1. 
 LETTER DEMANDING MONEY WITH MENACES, 
 
 statutes of the several states, 427 — 1 to 428 — 2. 
 
 threats at common law, 428 — 2, 428 — 3. 
 LIBEL, 
 
 history of the laws of, 316 to 318. 
 
 definition, 318—1 to 318 — 4. 
 
 distinction between oral and written slander, 318 — 4, 318 — 5. 
 
 mode of expression, 318 — 5 to 318 — 7. 
 
 blasphemous libels, 318 — 7 to 322—6. 
 
 indecent libels, 322—6 to 322—8. 
 
 against the law of nations, 322 — 8 to 322 — 10. 
 
 on the government, 322 — 10, 322—11. 
 
 on public officers, 322—11, 322—12. 
 
 publication, 322—12 to 322—18. 
 
 necessary to prove publication within particular county, 322 — 17. 
 
 privileged communications, 322 — 18 to 322 — 25.' 
 
 indictment, 322 — 25 to 322—28. 
 
 evidence in behalf of prosecution, 322—28 to 322 — 32. 
 
 evidence in defence, 322—28 to 322—32. 
 
 verdict, 322—35, 322—36. 
 
 constitutional provisions of the several states, 322 — 36 to 322 — 39. 
 statutes of the several states, 322—39 to 323. 
 LOG BOOK, 
 
 of vessels, when evidence, 146, 146 — 1. 
 LODGERS, (See Tenants and Loduees.) 
 
 VOL. I. — D 
 
205 — 30 INDEX TO THE NOTES. 
 
 LOTTERIES, 
 
 statutes of the several states, 609 — 55 to 609 — 63. 
 
 what is, 609—63 to 609—65. 
 
 indictment, 609—66, 609—68. 
 LUNATIC, 
 
 cannot be tried, or sentenced, 109 — 1, 109 — 2. 
 
 when competent to testify, 150—5. 
 
 M 
 
 MAGISTRATE, 
 
 may disperse unlawful assembly, 25 — 2, 27 — 1. 
 
 power to compel attendance of witnesses, 39, 40. 
 
 not liable though prisoner be discharged, 47 — 3. 
 jurisdiction to receive complaints, and issue warrants, 52. 
 
 duty to bail or to commit the accused, 54 to 57. 
 
 must return recognizance, 57 — 1, 57 — 2. 
 
 complaint to, 30 to 31 — 2. 
 
 recognizance certified by r to next court, 58. 
 MAIL, 
 
 larceny or embezzlement from, 5J8 to 578 — 2. 
 
 robbery of, 578 — 2 to 579—2. 
 MAINTENANCE AND CHAMPERTY, 
 
 definition and nature of maintenance, 630 — 2, 630 — 3. 
 
 law of, 630—3, 630—4. 
 
 champerty defined, 630—4, 630—5. 
 MALEFACTORS, 
 
 execution of, 221 — 13. 
 MALICE, 
 
 definition and nature, 120, 121. 
 
 evidence of previous, 122 — 1. 
 MALICIOUS INJURY, 
 
 statutes of the several states, 498 to 507 — 3. 
 
 in what it consists, 507 — 3. 
 
 indictment, 507—3 to 508—5. 
 
 what necessary to conviction, 508 — 3. 
 
 evidence, 508—5 to 608—7. 
 
 by railway, 518, 519. 
 
 to ships, 525 to 527. 
 MALICIOUS PROSECUTIONS, 
 
 redress for, 205 to 205—3. 
 MALICIOUS STABBING-, 
 
 what constitutes, 264. 
 
 evidence, 264. 
 MAL PRACTICE, 
 
 of physicians, manslaughter from, 220 — 10 to 221—18. 
 MANSLAUGHTER, 
 
 from mal practice of physicians, 220—10 to 221—18. 
 
 persons using dangerous instruments, 221 — 12. 
 
 distinction between and murder, 225—7. 
 
 under provocation, 226—1 to 229—2. 
 
 in case of sudden combat, 229—7 to 235. 
 
 third persons interfering, 232, 233. 
 
 time for cooling, 233—1 to 234—2. 
 
INDEX TO THE- NOTE& 205—31 
 
 MANSLAUGHTER— continued, 
 
 in quarrels, 236 — 16. 
 
 through illegality or irregularity of process, 242. 
 
 indictment, 254 — 7, 255. 
 
 from cruelty, 210 — 1. 
 
 from want of skill, 210—1 to 211. 
 
 from impropriety, negligence, or accident, 211 to 211 — 3. 
 
 voluntary in Pennsylvania, 211. 
 
 destruction of unborn infants, 211 — 6, 212 — 2. 
 
 in case of sports or recreations, 211, 217 — 1. 
 
 by master correcting servant, 218 — 3. 
 
 by privation and ill-treatment, 218 — 4, 219. 
 
 in performance of lawful act, 219 to 220 — 10. 
 
 negligence in management of steamboats, 220 — 2 to 220 — 10. 
 MASQUERADE, 
 
 unlawful in Pennsylvania, 609 — 120, 609 — 121. 
 MASTER. 
 
 authority to correct apprentice and servant, 290 — 6, 290 — 7. 
 
 may give reasonable correction, 9. 
 
 manslaughter by, in correcting servant, 218 — 3. 
 MAYHEM, 
 
 at common law, 264, 264 — 1. 
 
 by statute of several states, 264 — 1 to 264 — 4. 
 
 decisions, 264 — 4 to 265—3. 
 
 in Pennsylvania, 264 — 4. 
 
 in North Carolina, 264 — 4 to 264—6. 
 
 in Tennessee, 264—6, 264 — 7. 
 
 in Alabama, 264 — 7 to 265 — 2. 
 
 Virginia, 265 — 2. 
 
 Arkansas, 265—2, 265—3. 
 MOTE, 
 
 unlawful mining, 509 — 1. 
 
 English statute, 508 — 7 to 509—1. 
 MINISTER,— See Public Minister. 
 MISDEMEANORS, 
 
 what they include, 1. 
 
 how divided, 1. 
 
 which become penal by statute, 1. 
 
 when merged in felony, 1. 
 
 in New York, Massachusetts, and Ohio, 1. 
 
 New York statute relative to, 2. 
 
 in Pennsylvania, 2. 
 
 accessory is liable as principal, 14 — 1. 
 
 when magistrate guilty of, 25. 
 
 by preventing interment of dead body, 485 — 38, 485 — 39. 
 MONEY, 
 
 to constitute embezzlement must be received or taken into possession, 451, 452. 
 
 in embezzlement must be received on account of master, 452 — 2, 453. 
 
 in embezzlement must be received by virtue of employment, 453 to 454. 
 
 description of in larceny, 355 — 21 to 356. 
 MURDER, 
 
 definition, 206—1. 
 
 what necessary to constitute, 206 — 1, 206 — 2. 
 
 indictment under modern English statute, 206 — 2. 
 
 particularity of statement required at common law, 207 to 207 — 2. 
 
205 — 32 INDEX TO THE NOTES. 
 
 MURDER — continued, 
 
 general requisites of the indictment in U. S., 20T — 4 to 20*7 — 9. 
 
 jurisdiction of U. S. courts in, 208, 208 — 1. 
 
 the body must be found, 208 — 2, 208 — 3. 
 
 means of killing, 208 — 3, 209. 
 
 from cruelty, 210 to 218 — 2. 
 
 from impropriety, negligence, or accident, 211 to 211 — 4. 
 
 in conspiracy, 211 — 1 to 211 — 3. 
 
 in tumults and affrays, 211 — 3. 
 
 by advising another to commit suicide, 211 — 4. 
 
 forcing another to do an act likely to produce death, 211 — 4, 211 — 5. 
 
 by giving false evidence, 211 — 5. 
 
 destruction of unborn infants, 211 — 6 to 212 — 2. 
 
 method of computing time, 212 — 2. 
 
 by poison, proof of, 212 — 15. 
 
 whether occasioned by wound or by improper treatment, ,212 — 15 to 213 — 1. 
 
 there must be malice, express or implied, 213 — 2 to 214 — 4. 
 
 malice presumed, the killing being proved, 215 to 215 — 6-. 
 
 in the performance of an unlawful or wanton act, 211 — 1 to 211 — 5. 
 
 intent to.take life, 217 — 5 to 218 — 2. 
 
 of master by slave, 218—3, 218 — 4. . 
 
 distinction between and manslaughter, 225 — 7. 
 
 in duelling, 235 to 236—1. 
 
 resisting and killing officers, 236 — IT to 237 — 3. 
 
 by several taking part in resistance, 237 — 3, 238. 
 
 by ship's sentinel, 239 — 2. 
 
 by officer attempting to arrest without warrant, 242 — 7, 248. 
 
 of officer by one interposing in behalf of party illegally arrested, 243 — 3 to 243 — 5. 
 
 of game-keepers, 245 to 248. 
 
 in impressing seamen, 248 — 1 to 249. 
 
 principal in the first degree in, 249 to 249 — 2. 
 
 principal in the second degree in, 249 — 2 to 252 — 1. 
 
 accessories after the fact in, 254 — 2 to 254 — 7. 
 
 by poisoning in New York, 256 — 1. 
 
 history of poisoning, 255 — 1 to 256 — 1. 
 
 by poisoning in Massachusetts, Michigan, New Jersey, Vermont, 256 — 2. 
 
 by poisoning in Wisconsin, Ohio, Iowa, Virginia, and Texas, 256 — 2 to 256 — 4. 
 
 what essential to in New York, 207—6, 207—7. 
 
 name of deceased, 207—8, 207—9. 
 
 N 
 
 NAME, 
 ■ of place and county in indictment, 76 — 1 to 85 — 2. 
 
 of defendant, how stated in indictment, 78 — 1 to 83. 
 
 variance in, effect of, 82, 83. 
 
 of party, when essential, 123 — 3 to 124 — 1. 
 
 of deceased, in indictment for murder, 207 — 8 to 212 — 14. 
 
 of prosecutor, in indictment for larceny, 360. 
 
 of witness, when returned by grand jury, 168—3. 
 
 of thief, in larceny, 358—6. 
 
 of prosecutor, in larceny, 360. 
 NATURALIZATION, 
 
 act of oongress relative to, 8 — 2. 
 NEGROES AND MULATTOES, 
 
 abduction of, 303, 303—1. 
 
INDEX TO THE NOTES. 205—33 
 
 NEGROES AND MTJLATTOES— continued, 
 kidnapping, 303, 303— 1. 
 
 when not competent as witnesses, 630 — 6. 
 
 question of color to be decided by jury, 630 — 5. 
 
 meaning of the term "free person of color," in North Carolina t 630 — 5. 
 
 free negro may carry pistol in North Carolina, 630 — 5, 630 — 6. 
 NEW TRIAL, 
 
 definition, 178, 178—1. 
 
 power of U. S. courts and courts of several states in granting, 178 — 1 to 178 — 4. 
 
 on the ground of tampering with jury, 171 — 5. 
 
 English rule, 177 to 173. 
 
 on account of improper admission, or rejection of evidence, 178 — 4. 
 
 misdirection of judge, 178 — 4 to 178 — 6. 
 v verdict contrary to law, 178 — 7 to 178 — 14. 
 
 verdict contrary to evidence, 178 — 14 to 178 — 18. 
 
 improper jury, 178—18, 178—19. 
 
 misconduct of jury, 178—19 to 178—26. 
 
 newly discovered evidence,- 178 — 26 to 178 — 30. 
 NON IDENTITY, 
 
 plea of, 182—7. 
 NOTICE, 
 
 to produce in England, 139. 
 
 to produce in New York, 139. 
 
 proof of notice to produce, 139. 
 
 when it should be in writing, 139. 
 
 form of, 139—1. 
 
 must be reasonable in point of time, 139 — 1, ,140. 
 
 by officers of authority to arrest, 239 — 5, 239 — 6. 
 
 upon arrest, when unnecessary, 239 — 6. 
 
 by officers interposing in the case of riots and affrays, 240 — 1, 240 — 2. 
 
 by private bailiff, 240—2, 240—3. 
 
 by officers, before breaking open doors, 245. 
 
 of bail, 57—3. 
 NUISANCE, 
 
 statutes of the several states, 607 to 600 — 8. 
 
 definition, 607—8. ' 
 
 as to disorderly houses, 607—8 to 608—1, 609 — 45 to 609—47. 
 
 generally, 608—1 to 608—3. 
 
 to public highways, 608^3 to 609. 
 
 to highways by obsruction, 609 to 609 — 12. 
 
 to highways by not repairing them, 609 — 12 to 609 — 15. 
 
 to rivers, 609—15 to 609 — 29. 
 
 to bridges, 609—29 to 609—31. 
 
 liability of county to repair bridge built by private person, 609 — 31, 609 — 32. 
 
 liability to repair approaches, 609 — 32, 609 — 33. 
 
 gunpowder and combustibles, 609 — 33 to 609 — 40. 
 
 offensive trades and manufactures, 609 — 40 to 609 — 43. 
 
 persons infected going abroad, 609 — 43, 609 — 44. 
 
 collecting crowds of idle persons. 609 — 44, 609 — 45. 
 
 play houses, 609—47, 609—48. 
 
 open lewdness, 609—48, 609 — 49. 
 
 common scold, 609 — 49. 
 
 eaves droppers, 609 — 50, 
 
 removal of, 609—50. 
 
205 — 34 INDEX TO THE NOTES. 
 
 NUIS A.NCE— continued, 
 
 defence, 609—50, 609—51. 
 judgment, 609 — 51. 
 bawdy-house deemed, 609 — 81. 
 
 
 
 OATH, 
 
 usual mode of administering, 150. 
 
 to juror, 164—5, 164—6. 
 
 to triers, 164 — 4, 164 — 5. 
 
 as to administration of, to constitute perjury, 594 — 1 to 695 : — 1. 
 OFFENCES, 
 
 below degree of felony, rule with regard to, 6 — 3. 
 
 of larceny and embezzlement, distinct, 114. 
 
 what indictable, 2, 2 — 2. 
 
 rule as to joinder of, 93—2, 94—3 to 96 — 1. 
 
 attempt to commit, 20, 20—1, 258—1 to 258—3. 
 
 punishable by imprisonment in state prison in New York, 182 — 9 to 183 — 9. 
 
 punishable by imprisonment in state prison in Massachusetts, 183 — 8, 183 — 9. 
 
 punishable in state prison in Maine and Ohio, 183 — 9. 
 
 relating to dead bodies, 485 — 36. 
 OFFICER, 
 
 duty after arrest, 105, 106. 
 
 may kill party resisting him in making arrest, 221 — 13 to 222 — 2. 
 
 may kill rioters, 223. 
 
 making arrest must be legal, 241, 242. 
 
 killing of, attempting to arrest without warrant, 242 — 7 to 243 — 5. 
 
 killing of, by one interposing in behalf of a party illegally arrested, 243 — 3 to 243- 
 
 authority in public houses, 244, 244 — 1. 
 
 right to break open windows or doors, 244 — 2 to 245. 
 
 resisting and killing, 236—17 to 231—3. 
 
 under protection of law, 231. 
 
 authority how distinguished from that of private persons, 238 — 1, 238 — 2. 
 
 power to arrest under particular statutes, 238 — 3, 239 — 2. 
 
 authority to arrest in civil suits, 239 — 2 to 239 — 4. 
 
 must give notice of their authority, 239 — 5, 239 — 6. 
 
 notice by, in riots and affrays, 240 — 1, 240 — 2. 
 
 notice by private bailiff, 240—2, 240—3. 
 
 authority to arrest confined to district, 240—2, 240—3. 
 
 constable may interpose to prevent a breach of the peace, 231 to 237 — 2. 
 
 policeman under same protection as constable, 237. . 
 
 assaulting, 287 to 288. 
 
 obstructing in making arrest, 290 to 290 — 5. 
 
 libel on, 322—11, 322—12. 
 OFFICIAL MISCONDUCT, 
 
 at common law, 463, 463 — 1. 
 
 statutes of the several states, 463 — 1 to 463 — 8. 
 
 American decisions, 463 — 8 to 463 — 14. 
 
 ORDER, 
 
 for putting off trial, how obtained, 110—1. 
 
 OYSTERS, 
 
 stealing, or wilfully destroying, 411 to 411—8. 
 
 PAPER, 
 
 disproving genuineness of, 537 — 2 to 638- 
 
INDEX TO THE NOTES. 20^—35 
 
 PARDON, 
 
 povfer of president to grant, 114 — 1, 114 — 2. 
 
 general act, 114= — 2. 
 
 how pleaded, 114—2, 114—3. 
 
 definition, 187 — 7., 
 
 by constitution of ST. T., 187—7. 
 
 for offences against U. S., 187 — 7. 
 
 in Pennsylvania, 181 — 7. 
 
 in Massachusetts, New Jersey and Maine, 181 — 7, 182, 182—4, 1ST — 7, 
 in Ohio, Maryland, and Virginia, 182, 182 — 1. 
 in Arkansas, Michigan, Georgia, Mississippi and Vermont, 182 — 1. 
 in Wisconsin, Iowa, Oregon, 182 — 2. 
 when granted by judge, 182—2, 182 — 3. 
 in New York, 182 — 4. 
 to accomplices, 182 — 4, 182 — 5. 
 by president of United States, 182—5, 182—6. 
 conditional, 182 — 6. 
 PARENT, 
 
 may give reasonable correction, 9. 
 PERJURY AND SUBORNATION OP PERJURY, 
 
 U. S. statutes, 591—9. 
 
 statutes of the several states, 591 — 9 to 592 — 6. 
 
 at common law, 592 — 6, 592 — 7. 
 
 requisites to constitute, 592—7. 
 
 indictment, 592 — 7 to 593 — 15. 
 
 in judicial proceeding, 593—1, 593 — 2, 593 — 15, 594. 
 
 as to the administration of the oath, 594 — 1 to 595 — 1. 
 
 statement must be material, 596 to 597 — 1. 
 
 statement must be false, 599, 600. 
 
 evidence, 601 to 606—3. 
 PILLORY, 
 
 punishment, by, 184 — 1, 185. 
 PIRACY, 
 
 U. S. statutes, 481—19 to 482—1. 
 
 at common law, 481 — 1 to 482 — 3. 
 
 by the English statutes, 482 — 3 to 483—2. 
 
 in the United States, 483—2 to 485—12. 
 PHYSICIAN, 
 
 death from mal practice of, 210 — 2 to 221 — 18. 
 PLEA, 
 
 of not guilty, 123—1. 
 
 of former conviction, 114, 114 — 1. 
 
 of abatement in criminal cases, 111. 
 
 acquittal, 111 — 1 to 113 — 1, 
 
 of acquittal, nature of, 113. 
 PLEADING, 
 
 object of, 206—2. 
 POISONING, 
 
 history of, 255—1 to 256—1. 
 
 legal enactments in reference to, 256 — 1. 
 
 in New York, 256—1. 
 
 in Massachusetts, Michigan, New Jersey, Vermont, 256 — 2. 
 
 in Wisconsin, 256—2, 256—3. 
 
 in Ohio and Iowa, 256 — 3. 
 
 in Virginia, 256—3, 256 — i. 
 
205 — 36 INDEX TO THE NOTES. 
 
 POISONING— continued, 
 
 in Texas, 256—4. 
 
 evidence of administration, 256 — 4 to 256 — 9. 
 
 experiments on animals, 256 — 9, 256 — 10. 
 
 moral circumstances, 256 — 10 to 256 — 12. 
 
 arsenic, 256 — 12, 256 — 13. 
 
 evidence of medical men, 258. 
 
 principal and accessory in, 258. 
 
 enormity of, 258. 
 POLICEMAN, 
 
 under same protection as constable, 23T. 
 POST OFFICE, 
 
 acts of congress relative to offences against, 73. 
 PRESENTMENT, 
 
 definition, 63 — 2. 
 PRESUMPTION, 
 
 definition, 212—11, 212—12. 
 
 of intention in law, 121—1, 121 — 2, 212—10. 
 
 idiocy by, 4 — 4. 
 
 as to one born deaf, dumb, and blind, 4 — 4. 
 
 of coercion, when repelled, 7. 
 
 of innocence, 117 — 2, 118. 
 
 ground of, 133 to 134 — 1. 
 
 of guilt from possession of stolen property, 168 — 4. 
 
 violent, 212 — 13. 
 
 in murder, malice presumed, the fact of killing being proved, 215 to 215 — 6, 226. 
 
 boy under fourteen presumed incapable of committing rape, 305 — 4. 
 
 of guilty knowledge in counterfeiting, how rebutted, 511 — 9, 517 — 10. 
 
 in larceny, 369 to 370—2. 
 PRINCIPAL, 
 
 liable for acts of agent, 11. 
 
 participation must be felonious, 11 — 17, 12. 
 
 liability of seconds in a duel, 12. 
 
 in encouraging another to commit suicide, 12. 
 
 distinction between principals in the first and second degree, 13, 13 — 1. 
 
 trial of, 13. 
 
 in respect to misdemeanors, 13 — 1. 
 
 indictment, 13 — 1. 
 
 by soliciting others to commit assault and battery, 19. 
 
 in the first degree in murder, 249 to 249 — 2. 
 
 in the second degree in murder, 249 — 2 to 252 — 1. 
 
 in poisoning, 258. 
 
 in first and second degree, evidence against, 123. 
 
 authority of bail over, 57 — 4, 58. 
 PRINCIPAL AND ACCESSORY— See Accessory, Prujcipai,. 
 PRISON, 
 
 regulations of, in New York, 204 — 5 to 204 — 25. 
 
 regulations in Massachusetts, 204 — 25 to 204 — 31. 
 
 regulations in Pennsylvania, 204 — 31 to 204 — 35. 
 
 regulations in Virginia, 204 — 35 to 204 — 38. 
 PRISONER, 
 
 how kept after arrest, 34 — 6. 
 
 may be searched, 34 — 6. 
 
 when property restored to him, 34 — 6. 
 
 statutes of several states relative to, 35. 
 
INDEX TQ THE NOTE& 205 — 37 
 
 PRISONER— continued, 
 
 examination of,' 35 to 45. 
 
 how detained and kept for examination, 36 — 2, 37. 
 not bound to accuse himself, 43 — 1. 
 should not be examined on oath, 44. 
 what proof, required to commit, 45, 45 — 1. 
 commitment, 45 to 45 — 2. 
 form of commitment, 47 to 47 — 4. 
 remedy, where his commitment is illegal, 47 — 3, 47 — 4. 
 cannot' demand copy of depositions, 51. 
 examination of, 43 to 45. 
 released upon finding sureties, 57 — 3. 
 standing mute, 108 to 109 — 1. 
 duty of jailer to receive, 47 — 3. 
 PRIVATE PERSONS, 
 
 authority to arrest, 237 to 237 — 2. 
 
 authority, how distinguished from that of officer, 138—1, 138 — 2. 
 
 power to arrest under particular statutes, 238 — 3 to 239 — 2. 
 notice by, when interfering to part combatants, 240 — 1. 
 PRIVILEGED COMMUNICATIONS, 
 
 generally, 153—1, 153—2. 
 
 in libel, 322—18 to 322—25. 
 PRIZE FIGHT, 
 
 affray in, 591 — 4. 
 PROCESS, 
 
 for witnesses, 39. 
 
 against witnesses, 39, 40. 
 
 for bringing defendant into court, 102-^4. 
 
 nature of, 102— 4, 103. 
 
 power to issue, 103. 
 
 of outlawry, 103. 
 
 upon indictment, 161 — 9, 161 — 10. 
 
 legality of, 242 to 242—7. 
 
 manslaughter through illegality or irregularity of, 242. 
 PROSECUTIONS,— See Malicious Prosecution. 
 PROVOCATION, 
 
 homicide under, 226—1 to 229—2. 
 PUBLIC HEALTH, 
 
 offences against, 609 — 52. 
 
 statutes of the several states, 609 — 52 to 609 — 54.- 
 
 injury to, by selling unwholesome food, 609 — 54, 609 — 55. 
 PUBLIC HIGHWAYS, . 
 
 nuisance to, 608—3 to 609. 
 
 nuisance to, by obstructions, 609 to 909 — 12. 
 
 nuisance to, by not repairing, 609—12 to 609 — 15. 
 PUBLIC MINISTER,' 
 
 immunities and inviolability of, 8. 
 
 when not protected, 8. 
 
 rule as to ambassadors, 8, 8 — 1. 1 
 
 distinction between ambassador, minister, plenipotentiary, envoy extraordinary, and 
 resident minister, 8 — 1. 
 
 charge iPaffairs, 8-, — 1. 
 
 consuls, 8 — 1. 
 
 laws of the United States, on the subject of consuls, and vice consuls, 8—1, 8—2, 
 
 consul-general may be prosecuted for rape, 306 — 1. 
 
 VOL. I. — E 
 
205 — 88 INDEX TO THE NOTES. 
 
 PUBLIC SHOWS, 
 
 statutes of the several states, 609 — 121 to 609—123. 
 PUNISHMENT, 
 
 by pillory, 184—1, 185. 
 
 by fines, 186. 
 
 of attorney, 186. * 
 
 mitigated upon payment of costs, 189. 
 
 of death in the several states, 202 to 202 — 5. 
 
 of imprisonment in New York, 204. 
 
 imprisonment in Massachusetts, 204 to 204 — 3. 
 
 of accessory in Illinois, 16. 
 
 of affray, 691—8. 
 
 of bigamy in New York, 610, 610—1. 
 
 of bigamy in most of the states, 610—1. 
 
 imprisonment in Maine, 204—3. 
 
 imprisonment in Pennsylvania, 204 — 3, 204 — 4. 
 
 imprisonment in Michigan, 204 — 4, 204 — 5. 
 
 for offences relating to dead bodies, 485—42. 
 
 of death in the several states, 202 to 202 — 5. 
 
 by exile, 182 — *J, 182—8. 
 
 in case of treason, 181 to 181 — 2. 
 
 in case of buggery, 181 — 2, 181—3. 
 
 in the several states, for rape, 181 — 3 to 181 — 6. 
 RAILWAY, 
 
 malicious injury by, 518, 519. 
 RAPE, 
 
 statutes of the several states, 304 to 305 — 1. 
 
 definition, 305—1. 
 
 how punished in different countries, 305 — 1 to 305 — 4. 
 
 persons by whom the offence may be committed, 305 — 4 to 306 — 1. 
 
 boy under fourteen presumed incapable of committing, 305 — 4. 
 
 presumption that infant is incapable of committing may be rebutted, 305—4, 306. 
 
 husband cannot be guilty of upon wife, 306 — 1. 
 
 consul-general may be prosecuted for, 306 — 1. 
 
 persons on whom it may be committed, 306 — 1, 306 — 2. 
 
 whether it may be committed by stealth or fraud, 306 — 2, 306 — 3. 
 
 penetration necessary, 306 — 3 to 301. 
 
 of emissio seminis, 301 to 307 — 2. i 
 
 penetration prima facie evidence of emission, 307 — 2. 
 
 woman a witness, 307 — 2 to 307—4. 
 
 evidence of complaint made by prosecutrix, not admissible, 307 — 4 to 307 — 6. 
 
 as to impeaching character of prosecutrix, 307 — 7 to 307 — 9. 
 
 evidence of good character of prosecutrix, 307 — 11. 
 
 of the indictment, 307—12 to 307—14. 
 
 indictment against aiders and abettors, 307 — 14 to 307 — 16. 
 
 medico legal questions, 307 — 16 to 308. 
 
 attempt to commit, 308 to 309. 
 RECEIVING STOLEN GOODS, 
 
 statutes of the several states, 473 — 18 to 476 — 1. 
 
 evidence, 476 — 1 to 481. 
 
 indictment, 481 to 481—9. 
 
 verdict, 481—9, 481—10, 
 RECOGNIZANCE, 
 
 definition, 37, 56. 
 
 manner of taking, 37. 
 
INDEX TO THE NOTES. 205—39 
 
 RECOGNIZANCE— continued, 
 
 of prosecutor and witnesses, 4*7 — 5, 48. 
 
 how certified and returned, 49. 
 
 must be voluntary, 56. 
 
 general requisites of, 56 to 5? — 1. 
 
 how forfeited, 57 — 2. 
 
 how discharged,. 57 — 2. 
 
 judgment on, no bar to second prosecution, 57 — 2. 
 
 certified by magistrate to next court, 58. 
 
 witnesses, how bound in, 156, 156 — 1. 
 
 discharging in assault and battery, 283 — 7 to 283 — 9. 
 
 magistrate must return, 57 — 1, 57 — 2. 
 RECORD, 
 
 how proved, 142 — 1, 142 — 2. 
 
 public, of other states, 144 — 1. 
 
 N. T. statute relative to proof of foreign, 144 — 2, 144 — 3. 
 
 proof of foreign records generally, 144 — 3, 144 — 4. 
 
 amendment of, 186, 
 
 larceny of, 396, 397. 
 REGISTER, 
 
 of births, baptisms, and burials, when evidence, 145, 145 — 1. 
 
 of vessels, when evidence, 145 — 1, 146. 
 REPRIEVE, 
 
 definition, 181 — 7. 
 
 by constitution of New York, 181 — 7. 
 
 for offences against United States, 181 — 7. 
 
 in Pennsylvania, 181 — 7. 
 
 in Massachusetts, New Jersey, and Maine, 181 — 7, 182. 
 
 in Ohio, Maryland, and Virginia, 182, 182 — 1. 
 
 in Arkansas, Michigan, Georgia, Mississippi, and Vermont, 182 — 1. 
 REVOLT AND ATTEMPT TO REVOLT, 
 
 statutes of U. S., 485—23, 485--24. 
 
 what constitutes confinement of captain, 485 — 24. 
 
 definition of revolt, 485—24, 485 — 26. 
 
 American decisions, 485 — 24 to 485 — 36. 
 REWARD, 
 
 for apprehension of offenders in the several states, 190, 190 — 1. 
 RIOT, 
 
 distinction between and rout or unlawful assembly, 587 — 9. 
 
 definition, 587—9. 
 
 nature and characteristics, 687^9, 589 — 3. 
 
 statutes of the several states, 589 — 4 to 590 — 8. 
 
 proof, 590 — 8 to 591—3. 
 
 beginning to demolish a church or house, 494 to 495. 
 
 citizen may suppress, 25 — 2; 
 RIVER, 
 
 nuisance to, 609—15 to 609—29. 
 ROBBERY, 
 
 indictment, 417 — 1 to 417 — 3. 
 
 definition, 417—3 to 417—5. 
 
 as to the felonious taking, 417 — 5 to 417 — 7. 
 
 where the taking has been under color of a purchase, 417 — 6, 417 7. 
 
 the taking sufficient, if it be in the presence of owner, 417 — 7. 
 
 the taking must not precede the violence, 417 — 7. 
 
205 — 40 INDEX TO THE NOTES. 
 
 BOBBERY— continued, 
 
 as to the taking against the will of the party, 411— 7, 411—8. 
 
 as to the violence or putting in fear, 417 — 8, 418 4. 
 
 of the violence, 411 — 8 to 418 — 1. 
 
 of the putting in fear, 418 — 1 to 418 — 4. 
 
 early cases decided in England, 418 — 4 to 418—13. 
 
 Tinder English statutes, 418—13 to 422—1. 
 
 principals and accessories in, 423, 424. 
 
 statutes of the several states, 424 to 425 1. • 
 
 assault with intent to commit, 425—1 to 421. 
 BOUT, 
 
 definition and nature of, 5S9 — 3. 
 
 SABBATH BREAE2NG, 
 
 statutes of the several states, 669— 136 to 609— 145t 
 in Massachusetts and Connecticut, 609' — 145; 
 in Pennsylvania,. 609 — 145, 609 — 146. 
 in North Carolina, South Carolina, and Georgia, 609 — 146t 
 in Arkansas, 609 — 146, 609 — 141. 
 SCIENTER, 
 
 proof of, 122. 
 SEALS, 
 
 private, proof of, 146 — 2. 
 of corporationSj how proved, 146 — 21 
 SEARCH WARRANT, 
 
 in general 34 — 1 to 34 — 5. 
 can only issue upon probable cause, 34 — 4. 
 constitution of XT. S. relative to, 34 — 5i 
 how executed, 34 — 5. 
 SECONDS, 
 
 liability of, in duel, 12. 
 SECOND CONVICTION, 
 
 in New York, 186, 185—1. 
 in Michigan, 185. 
 SEDUCTION, 
 
 statute of New York, 615—8. 
 statute of Pennsylvania, 615 — 8: 
 Pennsylvania decisions, 515 — & 
 SELF DEFENCE, 
 
 homicide in, 224 to 224: — 1. 
 SENTENCE, 
 
 preceded by address of judge, 180i 
 defendant must be present, 180. 
 pronounced soon after convietion, 180'. 
 rendered by court in which defendant was convicted, 180" — 1. 
 defendant asked if he has anything to say, 180 — 1. 
 when joint, 180 — 1. 
 
 in addition to such as prescribed by law,. 180—2. 
 of imprisonment in New York, 204. 
 SHIPS, 
 
 malicious injury of, 625, 525 — 1. 
 
 setting fire to, or casting away, 521 to 529 — 2, 
 
 stealing from, 431 to 440—1. 
 
INDEX TO THE NOTES. 205 — 41 
 
 SHOOTING, 
 
 at a person with intent to murder, 270 — 1 to 215. 
 SLAVES, 
 
 killing of, 229—2 to 235. 
 SLAVE' TRADE, 
 
 statutes of United States, 485—12 to 485—15. 
 
 American decisions, 485 — 15 to 485 — 23. 
 
 indictment, 486—20 to 485—22. 
 
 evidence, 485—22, 485—23. 
 SODOMY, 
 
 in the several states, 309 to 309 — 2. 
 
 brought from Italy, 309 — 2. 
 
 in what it consists, 309 — 2. 
 
 what necessary to constitute, 309 — 2. 
 
 those present aiding and abetting are principals, 309 — 2. 
 
 there may be accessories before and after the fact, 309—2. 
 
 evidence and manner of proof, 309 — 2. 
 
 party consenting is an accomplice, 309 — 2. 
 
 indictment in Maryland, 309 — 3. 
 SOLITARY CONFINEMENT, 
 
 in Massachusetts and Ohio, 183 — 9. 
 
 in Michigan and 'Wisconsin, 183 — 10. 
 SMUGGLING, 
 
 evidence of, 583. 
 STATUTES, 
 
 of U. S. in treason, 564 to 464—2. 
 
 of the several states, in treason, 564 — 2 to 667. 
 
 of most of the states in felony generally, 1. 
 
 of New York, relative to misdemeanors, 2. 
 
 how stated in indictment, 86 — 2. 
 
 statement of indictment, 86 — 2. 
 
 advantages of modern English, in murder, 206 — 2. 
 
 when indictment must conclude against form of, 16 — 1, 17. 
 
 of New York in abduction, 301, 301 — 2. 
 
 construction of N. Y. statute relative to abduction, 301 — 2. 
 
 of Michigan in abduction, 301, 301 — 1. 
 
 of Mississippi in abduction, 301 — 1. 
 
 construction of St. 4 & 5, Phillip & Mary, relative to abduction, 302 — 5 to 303. 
 
 of Massachusetts in abortion, 295 — 9. 
 
 of New York, Vermont and Ohio, in abortion, 295 — 10. 
 
 of Maine in abortion, 295 — 10, 295 — 11. 
 
 of Michigan and Wisconsin, in abortion, 296 — 11. 
 
 of addition, extends to defendant alone, 79 — 1. 
 
 in the several states relative to adultery, 612 — 2, 616 — 3. 
 
 in affray, 591—5 to 591-^7. 
 
 in appeal, 194 to 194 — 14. 
 
 of Massachusetts and North Carolina relative to arrest of judgment, 178 — 31. 
 
 ofU. S. in arson, 485 — 45. 
 
 of the several states in arson, 486 — 45 to 492 — 1. 
 
 for assault with intent to rob, 425 — 1 to 427. 
 
 for attempt to commit offence generally, 258 — 1 to 258 — 3. 
 
 for attempt to commit rape, 308 to 308 — 2. 
 
 special provision relative to bail in Ohio, 58, 58 — 1. 
 
 act of Alabama relative to bastardy, 299 — 1. 
 
 N. Y. St. relative to bill of exceptions, 171—1, 171—2, 194— 6 to 194—9. 
 
205 — 42 index to The notes. 
 
 STATUTES— continued, 
 
 of the several states relative to burglary, 328 — 1 to 330. 
 
 of several states for bribery, 510 — 6 to 570 — 10. 
 
 of Massachusetts and Michigan relative to concealing death' of bastard child, 291. 
 
 concealing death of child in Pennsylvania, 297, 297 — 1. 
 
 concealing death of child in New York, Connecticut, Vermontand New Jersey, 297 — I. 
 
 concealing death of child in Maine and Wisconsin, 297 — 2. 
 
 English statute relative to dead bodies, 485 — 37, 485 — 38. 
 
 of Massachusetts relative to dead bodies, 485 — 40. 
 
 of New York and Ohio relative to dead bodies, 485 — 42. 
 
 of the several states in embezzlement, 446 to 447 — 3. 
 
 English, relative to embezzlement, 448 — 5 to 449. 
 
 of the several states in extortion, 463 — 16 to 463 — 21. 
 
 of several states in false pretences, 463 — 26 to 464 — 4. 
 
 of most of the states, felony by, 1. 
 
 of several states in forcible entry and detainer,354 to 354 — 3. 
 
 of TJ. S. in forgery, 534 to 534—5. 
 
 of the several states in forgery, 534 — 5 to 536 — 19. 
 
 in fraudulent insolvency, 481 — 10 to 481 — 19. 
 
 against gaming, 609—90 to 609—108. 
 
 relative to hawkers and pedlars, 609—123 to 609—128. 
 
 of several states, in kidnapping, 299 — 16 to 300 — 4.. 
 
 in larceny, 354—16 to 355—8. 
 
 in libel, 322—39 to 323. 
 
 relative to lotteries, 609—55 to 609—63. 
 
 relative to letter demanding money with menaces, 427 — 1 to 428 — 2. 
 
 in malicious injury, 498 to 507 — 3. 
 
 of several states in mayhem, 264: — 1 to 264 — 4. 
 
 in nuisance, 607 to 607 — 8. 
 
 for official misconduct, 463 — 1 to 463 — 8. 
 
 of TJ. S. in perjury and subornation of perjury, 591 — 9. 
 
 of the several states in perjury, &c, 591 — 9 to 692 — 6. 
 
 TJ. S. in piracy, 481—19 to 482—1. 
 
 English in piracy, 482 — 3 to 483 — 2. 
 
 in reference to poisoning, 256 — 1 to 256 — 4. 
 
 relative to prisoners, 35. 
 
 relative to the public health, 609—52 to 609—54. 
 
 relative to public shows, 609—121 to 609—123. 
 
 of the several states, in conspiracy, 615—12, 616—2. 
 
 relative to incest, 615—8 to 6i5— 11. 
 
 of TJ. S. relative to fugitives from justice, 630 — 6. 
 
 of the several states relative to fugitives from justice, 630—6 to 630—10. 
 
 in rape, 304 to 305—1. 
 
 against receiving stolen goods, 473—18 to 476—1. 
 
 N. Y. relative to proof of foreign, 144—2, 144—3. 
 
 of TJ. S. for revolt and attempt to revolt, 485—23, 485—24. 
 
 in riot, 589—4 to 590—8. 
 
 in robbery, 424 to 425—1. 
 
 against sabbath breaking, 609-136 to 609-145. 
 
 of New York and Pennsylvania against seduction, 615—8. 
 
 of TJ. S. relative to slave trade, 485—12 to 485—15. 
 
 of several states relative to threatening letter, 323—1 to 324—2. 
 
 English relative to threatening letter, 325 to 326. ■ 
 
 of Mass., N. Y., and Va., in treason, 623-8. 
 
 relative^ vagrants, 609-129 to 609-136. 
 
 TJ S. relative to violation of neutrality laws, 687, 687—1. 
 
INDEX TO THE NOTES. 205—43 
 
 STEAMBOAT, 
 
 manslaughter through negligence in the management of, 220 — 2 to 220 — 10. 
 STOLEN GOODS, 
 
 restitution of, at common law:, 192, 192 — 1. 
 
 restitution of, in the several states, 192, 192 — 3. 
 
 presumption of guilt, from possession of, 1C8— 4. 
 SUICIDE, 
 
 liability of one encouraging another to commit, 12. 
 
 murder by advising another to commit, 211—4. 
 
 accessories to, 14^1 
 SUMMONS, 
 
 when preferable process, 31 — 3. 
 
 TENANTS AND LODGERS, 
 
 larceny by, 440 — 1, 441. 
 THIEF, 
 
 name of, in larceny, 358 — 6. 
 TIME, 
 
 allegation of, in indictment, 84 — 1. 
 
 proof of, how far material, 84 — 1. 
 
 how stated in indictment, 85. 
 
 method of computing in homicide, 212 — 2. 
 
 statement of, in general, not material, 119 — 1. 
 
 of committing burglary, 336 to 336 — 2. 
 TIPPLING HOUSES, 
 
 constitutionality of prohibitions against, 609—69 to 609 — '1 2. 
 
 indictment, 609—12 to 609—80. 
 
 proof, 609—80 to 609—84. 
 THREATS, 
 
 punishable by indictment, 263. 
 
 of great bodily harm, 532 to 533 — 1. 
 THREATENING LETTER, 
 
 statutes of the several states, 323 — 1 to 324 — 2. 
 
 English statutes, 325 to 326. 
 
 at common law, 326 to 326 — 2. 
 
 decisions under the English statutes, 326—2 to 327 — 8. 
 TRANSPORTATION, 
 
 definition, 182 — 7, 182—8. 
 
 punishment by, 182 — 8. 
 TRAVERSE, 
 
 meaning of, 110. 
 TREASON, 
 
 at common law, 1. 
 
 in the United States, 1. 
 
 statutes of U. S. 564 to 564—2. 
 
 statutes of the several states, 564 — 2 to 567. 
 
 how divided at common law, 567. 
 
 distinction between high and petit not recognized, 567 — 1. 
 
 decisions in U. S. courts, 567 — 2 to 569 — 1. 
 
 in New York, 569—1, 569—2. 
 
 in Pennsylvania, 569 — 2. 
 
 in Rhode Island, 569—2 to 570—1. 
 
 witness privileged from answering question tending to implicate him, B70— 1. 
 
 evidence not admissible to prove distinct offence, 570—3, 570 i, 
 
205 — 44 INDEX TO THE NOTES. 
 
 TEEATIES, 
 
 relative to the surrendering of fugitives from jusliee, 33—3, 33 — 4. 
 TRIAL, 
 
 of principal, 13. 
 
 of accessories, at common law, 18. 
 
 of accessories, in the several states, 15 to 18. 
 
 prisoner standing mute, 108, 109. 
 
 proceedings when prisoner is insane, 109 — 1, 109 — 2. 
 
 defendant need not be asked how he will be tried, 109 — 2. 
 
 the putting over, 110 — 1, 111. 
 
 usual ground for delay, 110 — 1. 
 
 order for putting off, how obtained, 110—1, 111. 
 
 who has a right to begin, 123 — 1. 
 
 when to be had, 166, 166—1. 
 
 postponing, 166 — 1 to 167 — 2. 
 
 doctrine of putting off, 161, 167 — 1. 
 
 when witnesses ordered to withdraw, 167 — 2 to 167 — 4. 
 
 rule as to keeping jury together, 170 to 171. 
 
 order for putting off, how obtaiued, 110 — 1. 
 
 UNFORTUNATE NECESSITY, 
 
 homicide upon, 224—8 to 225—2. 
 UNITED STATES, 
 
 treason in, 1. , 
 
 statutes of in treason, 564 to 564 — 2. 
 
 decisions in courts of, relative to treason, 567 — 2 to 569 — 1. 
 
 jurisdiction of courts of, in murder, 208, 208 — 1. 
 
 constitution of, relative to indictment, 63 — 2. 
 
 jurisdiction of courts of, over crimes and offences, 66 to 67 — ' 
 
 constitution of, relative to search warrant, 34 — 5. 
 
 power of courts of, in granting new trial, 178 — 1 to 178 — 4. 
 
 pardon for offences against, 187 — 7. 
 USURY, 
 
 statutes of Mass., N. Y., and Va., 623—8. 
 
 VAGRANTS, 
 
 statutes of the several states, 609—129 to 609—136. 
 VALUE, 
 
 statement of, in larceny, 356 — 1, 364. 
 
 of property stolen, verdict must fix, 361 — 2. 
 VARIANCE, 
 
 in name of deceased in indictment for murder, 207—8 to 212—14. 
 
 in name, effect of, 82, 83. 
 
 when made good by intendment of law, 86 — 2. 
 
 when fatal, 86—3 to 91. 
 
 in name of party injured, 119. 
 
 in name of party generally, 123—3 to 124—2. 
 VENUE, 
 
 how stated, 207.— 9. 
 
 how laid in murder, 207—9, 208. 
 
 how derived, 63 — 3. 
 
 how laid at common law, 63—3, 64, 
 
INDEX TO THE NOTES. 205 — 45 
 
 VENUE— continued, 
 
 in the several states, 64 — 1 to 75. 
 
 in murder, 68. 
 
 in libel, 68. 
 
 in larceny, 69. 
 
 in bigamy, 611, 611—1, 13—1. 
 
 in duelling and challenging to fight, 236 — 14. 
 
 in kidnapping, 355 — 13 to 355 — It. 
 
 in embezzlement, 10, 10 — 1. 
 
 in false pretences, 10 — 1, 11. 
 
 in forgery, 71 — 1. 
 
 in treason, 71 — 1. 
 
 in conspiracy, 71 — 1, 72, 
 
 when changed, 75. 
 VERDICT, 
 
 when jury directed to reconsider, 194. 
 
 when imperfect, set aside, 194. 
 
 in Mississippi, 194 — 10. 
 
 when vitiated by tampering with jury, 171 — 5. 
 
 how delivered, 173 — 1. 
 
 may be for offence inferior in degree to that charged, 173 — 2 to 176 — 2. 
 
 kinds of, 116—3. 
 
 general and special, 116 — 3 — 116 — 4. 
 
 when set aside, 111. 
 
 how delivered, 111. 
 
 indictment when cured by, 118 — 31, 118 — 32. 
 
 upon indictment for assault with intent to murder, 262 — -'3. 
 
 in prosecution for larceny, the verdict must fix the value of the property stolen, 361 — 2. 
 
 for receiving stolen goods, 481 — 9, 481 — 10. 
 
 must find all that is essential in sustaining the indictment, 118 — 32. 
 
 in larceny, must fix value of property stolen, 361 — 2. 
 
 in libel, 322—35, 322—36. 
 VESSEL, 
 
 register of, when evidence, 145 — 1, 146. 
 VIOLATION OF THE NEUTRALITY LAWS, 
 
 U. S. statutes, 581, 581—1. 
 
 decisions, 581—1 to 587—8. 
 VOTING, — See Illegal Voting. 
 
 "W 
 
 WARRANT, 
 
 statute concerning in Pennsylvania, 25 — 2. 
 may be either with or without seal, 33. 
 must not be general, 33 to 47 — 4. 
 name of person to be apprehended, how stated, 33. 
 must recite the accusation, 33, 33 — 1. 
 requsites, when executed out of the county, 33 — 1. 
 must set forth offence with certainty, 47^-4. 
 need not contain the facts on which the charge is made, 33 — 1. 
 how directed, 33—1, 33—2. 
 how returnable, 33 — 2. 
 what it must command, 33 — 2. 
 must not be left blank, 33 — 2. 
 
 backing, how regulated in the several states, 33 — 5, 34. 
 VOL. I.— F 
 
205 — 46 INDEX TO. THE NOTES. 
 
 WARRANT— continued, 
 
 Bearoh warrant, 34 — 1 to 34 — 3. 
 
 search warrant can only issue upon probable cause, 34 — i. 
 
 Const, of U. S. relative to search warrant, 34— -4. 
 
 search warrant how executed, 34 — 5. 
 
 after indictment found, 103 — 1. 
 
 service when party already under arrest, 106, 101. 
 
 by whom to be executed, 241. 
 
 See Search Warrant. 
 WHIPPING, 
 
 punishment by, 184 — 1. 
 WIPE, 
 
 when presumed to act under coercion, 6 — 2. 
 presumption of coercion, when repelled, 7. 
 WILL, 
 
 forgery of, 647—14, 647— 15. 
 • WITNESSES, 
 
 power of magistrate to compel attendance of, 39, 40. 
 
 process for, 39. 
 
 warrant or attachment against, 39, 40. 
 
 punishment for refusing to testify, 40. 
 
 criminal contempt of, 41. 
 
 binding of, by recognizance, 47 — 5, 48, 98. 
 
 to be bound over by examining magistrate, 98. 
 
 names to be marked on indictment, 98. 
 
 proceedings against, 98. 
 
 before grand jury, how sworn, 98. 
 
 effect of not being regularly sworn, 98, 98 — 1. 
 
 to character of prisoner, 123 — 2. 
 
 to prove service of notice to produce, 139. 
 
 how sworn, 150, 150 — 1. 
 
 competency at common law, 150 — 1. 
 
 how far religious views incapacitate, 150 — 1 to 150 — 3. 
 
 at what age competent, 150 — 3, 160 — 4. 
 
 deaf and dumb persons, 150 — 4. 
 
 idiots and lunatics, 150 — 5. 
 
 habitual drunkard, 150 — 5. ' 
 
 jurors, 151. 
 
 persons entitled to reward, 161 — 1. 
 
 party injured, 151 — 1. 
 
 interest to disqualify, 152. 
 
 husband and wife, 152, 153. 
 
 who privileged, 153 — 1, 153 — 2. 
 
 one of several, jointly indicted, 153 — 2 to 164 — 1. 
 
 accomplices, 154 — 2, 155. 
 
 persons convicted, 155, 155 — 1. 
 
 number required, 155 — 2, 156. 
 
 how compelled to attend, 156. 
 
 how bound in recognizance, 156, 156 — 1. 
 
 compensation, 156, 156 — 3. 
 
 when ordered to withdraw, 167 — 2 to 167 — 4. 
 
 examination and cross-examination, 167 — 4 to 168 — 2. 
 
 re-examination, 168 — 2, 168 — 3. 
 
 when names of, returned by grand jury, 168 — 3. 
 
 fees and expenses of, in the several states, 186 — i to 186 — 7. 
 
INDEX TO THE NOTES. 205—47 
 
 WITNESSES— continued, 
 
 privileged from answering questions tending to implicate them, 570 — 1. 
 
 in bastardy, 299—10 to 299—13. 
 
 competency of child, 312. 
 
 habitual drunkard may be, 150 — 5. 
 
 when negroes not competent as, 630 — 5. 
 WOUNDS, 
 
 definition, 260 — 1 to 260—5. 
 
 general medico legal questions that may arise in the investigation of, 260 — 5 to 262 — 1. 
 WRIT OF ERROR, 
 
 in New York, 194—5 to 198—2. 
 
 not allowed in Vermont, 194 — 11. 
 
 in Tirginia, 194—11, 194—12. 
 
 how used, 198. 
 
 in Massachusetts, 198. 
 
 Pennsylvania, 198 — 2. 
 
 Maine, 198—2, 198—3. 
 
 Ohio, Maryland, Vermont, and Michigan, 198 — 3. 
 
 Wisconsin, 198 — 3, 198 — 4. 
 
 in Iowa, 198 — 4, 198 — 5. 
 

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