Olnm^U ICatu ^rl|nol ICibrar^ Cornell University Library KF 9640.J89 Treatise on the law governing indictment 3 1924 020 180 273 A Cornell University J Library The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020180273 TREi^TISE ON THE LAW GOVERNING INDICTMENTS WITH FORMIS COVERING THE GENERAL PRINCIPLES OF LAW RELATING TO THE FINDING, REQUISITES AND SUFFICIENCY OF INDICTMENTS, COMBINED WITH FORMS WHICH HAVE RECEIVED JUDICIAL APPROVAL By HOWARD C. ^JOYCE, Of New York City, Joint Author of ' ' The Law of Nuisance." ALBAN^Y, ]Sr. Y. MATTHEW BEXDER & CO. 1908. "COPTBIGHT, 1908, By MATTHEW BENDER & CO. PREFACE IN the United States Constitution and in the constitutions of the various states provisions, the origin of which may be found in the Magna Charta, were early incorporated which secured to an accused the right to a presentment or indictment by the grand jury. Although to some extent the mode of prosecution by indict- ment has been superseded by prosecution by information, yet it is only to a slight extent that this is true, and at the present day the former mode is generally followed. In this connection questions as to the power and jurisdiction of the grand jury to act and especially as to the sufBciency of the charging of the offense have been and are continually before the courts for determination. It has been the purpose of the author in this work to present the general principles as to the finding, requisites and sufficiency of indictments with their application to indictments for specific offeiKes, and also to give forms for which there is a daily need. The accomplishment of this purpose has required a vast amount of labor. Several thousand cases have been personally 'examined by the author and nearly six thousand citations are given. The forms are, with very few exceptions, those which have either re- ceived judicial approval in cases in which the question of their sufficiency has been before the court for determination or those which have been used in cases in which the question of their sviffi- ciency has not arisen, thus leaving the pleader in no uncertainty as to the safety of following a given form. Trusting that this work will be a practical aid and of value to the profession, the author respectfully submits it for consideration. HOWAKD C. JOYCE. New York, April, 1908. TABLE OF CONTENTS. CHAPTEK I. Defixitioxs, Xatuee and Chaeactee. Section 1. Indictment defined. 2. Presentment defined. 3. Presentment distinguished from indictment. 4. Accused may be tried on presentment of grand jury. 5. Information defined. 6. Information distinguished from indictment. 7. Prosecution by information at common law and in absence of con- stitutional or statutory provision authorizing. 8. Word information in Constitution construed with reference to common law. 9. Object of indictment. 10. Nature and character of indictment. 11. Indictment as used in Constitution or statute construed witli reference to common law. CHAPTER II. Right to and Xecessity of Indictment. Section 12. Eight to and necessity of indictment generally. 13. Where mode of prosecution prescribed by Constitution or statute. 14. Where offense created by statute; right to and necessity of indict- ment. 15. Where fine prescribed as punisliment. 16. Where offense punishable by fine and imprisonment. 17. Necessity of indictment; summary proceedings, misdemeanors. 18. Same subject continued. 19. Same subject; in Federal courts. 20. Where indictment not proper remedy. 21. Right to prosecute by indictment after demurrer to information sustained. 22. Power to indict person confined as military prisoner. 23. Jurisdiction of court dependent on indictment; where case appealed. 24. Indictments presenting questions in moot form. V. vi Table of Contents. CHAPTER III. Constitutional and Statutory Peovisions. Section 25. Terms " law of the land " and " due process of law " construed. 26. " Due process of law " does not require preservation of grand jury and indictment. 27. "Law of the land"; has reference to time offense committed and not time of trial. 28. What are " infamous crimes " within constitutional provision. 29. What are " infamous crimes '' within constitutional provision — continued. 30. What are " infamous crimes " within constitutional provision — conclusion. 31. Constitutional right to indictment cannot be waived; United States Constitution. 32. Constitutional right to indictment cannot be waived; under State Constitution. 33. Waiver of right to indictment by failure to demand, misde- meanors; statute. 34. Congress cannot take away right of indictment, but may change grade of a crime. 35. State may dispense with indictment; not restricted by fifth amendment to United States Constitution. 36. State may dispense with indictment; not restricted by fourteenth amendment to United States Constitution. 37. State may dispense with indictment; not restricted by United States Constitution. 38. State may dispense with indictment; not restricted by adoption of United States Constitution. 39. Where indictment and information concurrent remedies; may pro- ceed by information, though grand jury in session. 40. Powers of territoriol government to dispense with indictment. 41. A constitutional provision as to indictment gives no vested right; California case. 42. A constitutional provision as to indictment gives no vested right; Missouri case. 43. Whether a constitutional provision as to indictment gives vested right — conclusion. 44. Crime committed before admission of Territory as State; right to prosecute by information. 45. Legislature may prescribe form of indictment; general rule. 46. Limitations on power of Legislature to prescribe form of indict- ment. 47. Same subject continued. 48. Power of Legislature to dispense with indictment where provided for by State Constitution. Table of Contents. VI 1 Section 49. Indictment essential to jurisdiction wliere Constitution requires prosecution by. 50. Conviction for assault under indictment for manslaughter; ex post facto law; New York ease. 51. Legislature may dispense with indictment where authorized by Constitution. 52. Whether constitutional provision for prosecution by information instead of indictment is self-executing. 53. Changing charge in indictment; power of courts as to. 54. Legislature has no power to authorize court to change charge in indictment. 55. Constitutional provision requiring indictment for offenses punish- able with imprisonment for life construed. 56. Eight of State to provide for prosecution by information as affected by treaty. 57. Code provision as to indictment against accessory and principal; constitutionality of. CHAPTER IV. Power and JtrKisDiOTiON of Geand Juey. Section 58. Origin of grand jury; powers of generally. 69. Powers of grand jury to indict on knowledge of members. 60. Validity of indictment not affected by failure to designate term as provided by statute. 61. Grand jury must have jurisdiction. 62. Jurisdiction of grand jury co-extensive with, and limited by, that of court. 63. Indictment must be by grand jury of county where offense com- mitted. 64. Same subject; when not necessary. 65. Summoning grand jury from portion of district not violation of Federal Constitution. 66. Grand jury impanelled before offense committed; indictment valid. 67. Court divested of jurisdiction by indictment; statute. 68. Grand jury must be a legal body. 69. Same subject; classification of cases in which question arises. 70. Same subject; application of general rule. 71. Grand jury must be legal body though indictment not required. 72. Objection to formation of grand jury; right to make may be limited by statute. 73. Constitutional provision requiring indictment; when construed with reference to common law as to number. viii Table of Contekts. Section 74. Where number of grand jurors specified by law; compliance essential. 75. Where one grand juror excused but necessary number concur. 76. Defects in organization or selection of grand jury which are immaterial. 77. Same subject; illustration of rule. 78. Where person drawn as grand juror is personated by another. 79. Court cannot remove or change members of grand jury. 80. Grand jury should be sworn. 81. Grand jury must be composed of persons qualified to act. 82. Waiver of objection to want of qualification. 83. Grand jurors must be qualified; rule illustrated. 84. That a person is exempt from service as grand juror does not disqualify. 8.5. Expression of opinion by grand juror as ground of objection. 86. Same subject; application of rule. 87. Inquisitorial powers of grand jury. 88. Preliminary examination or hearing not generally necessary. 89. Same subject; contrary view. 90. Necessity that accused be in custody. 01. Where apprehension of offender a ground of jurisiiiction. 92. That arrest or custody is illegal is immaterial. 93. As to time of finding indictment; generally. 94. Where grand jury for one term holds over; de facto wrand jury. 9.5. Power of grand jury to find indictment during vacation. 96. Power to find indictment at an adjourned term. 97. Power to find indictment at special term. 98. Word " trial " in act providing for special term construed. 99. Power to find indictment at term other tlian that following com- mitment. 100. Same subject; under particular statutes. 101. Indictment found pending habeas corpus proceedings. 102. Constitutional provision as to right to be heard construed. 103. Indictment must be founded upon evidence. CHAPTER V. Finding and Retuen of Geaxd Juey. .Section 104. Power of grand jury to find specially or conditionally; general rule. Kio. Same subject; exact grade of crime not for grand jury. 100. Finding of indictment not prevented by pendency of another. 107. Same subject; as affected by statutes. 108. Same subject; where nolle prosequi entered on first indictment, demurrer sustained or judgment arrested. 100. Same subject; where first indictment fatally defective. Table of CoiVTents. ix Section 110. Same subject; where second indictment quashed. 111. Same subject; in case of change of venue. 112. Same subject; what plea alleging pendency of another indict- ment should gtate. 113. Indictment against several may be found true as to one. 114. Different offenses in same indictment. 115. Different offenses in different indictments. 116. Same subject; rules illustrated. 117. Effect of action by grand jury; right to reconsider. 118. Same subject; qualification of rule. 119. Power of court to resubmit bill to grand jury. 120. Resubmission of charge where no indictment found; limitation on power. 121. Same subject; statutory provisions may control. 122. Where order of resubmission uncertain. 123. Finding of grand jury cannot be varied by extrinsic evidence; general rule. 124. Same subject; as to evidence on whicli indictment found. 125. Same subject continued. 126. Same subject concluded. CHAPTER VI. Record of Indictment. Section 127. Record should identify indictment. 128. Record should show return into court; general rule. 129. Same subject; record entry of return not necessary. 130. Presumptions as to return. 131. Indictment need not appear on record in extenso. 132. Copying of indorsement not necessary. 133. Filing and indorsement of. 134. As to jurisdiction of court. 135. As to organization and qualification of grand jury. 136. As to swearing of grand jury. 137. As to names of grand jurors. 138. As to offense charged. 139. Record need not show indictment on testimony duly sworn. 140. Of indictment against two or more persons. 141. Filing away of indictment; reinstatement of. 142. Omissions supplied by reference to otlier parts of record. 143. Amendment of record; nunc pro tunc entries. 144. Same subject continued. 145. Power of court to supply record; lost indictment. 146. Same subject; statutory provisions affecting. 147. Same subject; after arraignment or trial. 148. Where indictment found after substitution. X Table of Contents. CHAPTER VII. Caption and Commencement. Section 149. Caption ; not a part of indictment. 150. Sufficiency of caption generally. 151. EflFect of errors or defects. 152. Caption applies to each count. 153. Caption should be distinguished from commencement; confusion between. 154. Necessity for caption generally. 155. What caption should state generally. 156. Caption should state place at which found. 157. Same subject; application of rule. 158. As to time of finding indictment generally. 159. Same subject; effect of clerk's certificate. 160. Should show jurisdiction of court; generally. 161. Same subject; no statement in caption; sufficient if record shows jurisdiction. 162. Same subject; amendment of caption. 163. Names of judges. 164. Time and place of holding court; generally. 165. Same subject; as to terms of court. 166. Same subject; reference to first day in stating term of court. 167. Name of offense. 168. Name of defendant. 169. Grand jury; showing as to county. 170. Grand jury; as to qualifications generally; "good and lawful men." 171. Same subject; that grand jury summoned and returned. 172. Same subject; that grand jurors were sworn. 173. Same subject; as to number of grand jurors. 174. Same subject; as to names of grand jurors. 175. Reference to caption to cure defects in Indictment. 176. Amendment of caption. 177. Commencement of indictment; generally. 178. Effect of clerical or grammatical errors. 179. Grand jury; commencement should show county. 180. Grand jury; matters unnecessary to state. 181. Showing as to presentment; use of words "on their oath." 182. Necessity of averment as to grand jury in each count. 183. Showing that prosecution is in the name and by the authority of the State. 184. Same subject; effect of constitutional or statutory provisions. 185. As to the offense. 186. Defects cured by reference to caption or other parts of indict- ment. Table of Contents. xi CHAPTER VIII. Body oe Indictment Generally. Section 187. Construction of indictment generally. 188. Use of words which refer back. 189. Same subject; pronouns. 190. Words to be construed according to usual meaning. 191. Where technical words are used. 192. Indictment must be in English language. 193. Bad handwriting does not necessarily vitiate. 194. Stating dates; use of figures. 195. Use of abbreviations and Latin words. 196. Use of signs. 197. Requisites and sufficiency of indictment generally. 198. Following precedent or statute. 199. Strict adherence to form; early English rule; not generally followed now. 200. Rule generally as to defects and infirmities. 201. Use of ungrammatioal language. 202. Mistakes which are merely clerical. 203. Use of wrong pronouns. 204. Errors in spelling. 205. Same subject continued; illustrations. 206. Same subject; contrary view. 207. Effect of omissions generally. 208. Effect of omissions; where fatal. 209. Same subject continued; illustrations. 210. Effect of erasures or alterations. 211. Effect of interlineations. 212. Fatal defect in charging offense; alteration or interlineation; effect of plea or verdict. CHAPTER IX. Desceiption oe Accused. Section 213. General rule as to stating name of accused. 214. Necessity of repeating name. 215. Use of initials instead of christian name. 216. Same subject; may be controlled by statute. 217. Name may be stated under an alias. 218. Use of fictitious name; given name or surname unknown. 219. Use of name by which defendant commonly or generally known. 220. Indictment of foreigner under English equivalent of name. 221. Middle name or initial; omission or insertion of. xii Table of Coxtents. Sertion 222. Abbreviations in stating name. 22.3. Stating of name differently in different parts of indictment. 224. Same subject; use of word " said." 225. Where names are idem sonans. 226. Where two or more defendants are joined. 227. Public corporations and officers. 228. Corporations generally; member of partnership. 229. Matters of description; English statute of additions. 230. Same subject ; use of words " junior " or " senior." 231. Same subject; residence of defendant. 232. Mode of raising objection on ground of misnomer. 233. Waiver of misnomer. 234. Same subject; as affected by statute. 235. Amendment to cure misnomer. 236. Same subject; statutory provisions as to. CHAPTER X. Chaeging the Offense ■ — GE^'EEAL Rules aitd Pein ciples. Section 237. Constitutional guaranty as to nature and cause of accusation. 238. Legislature can not deprive accused of constitutional right. 239. Generic term felony should not be used. 240. Necessity of using technical words. 241. Facts and circumstances should be stated; general rule. 242. Object in requiring particularity. • 243. Facts need not be, stated in minute detail. 244. Minor circumstances need not be stated. 245. Should use direct and positive averments. 246. Supplying omissions by intendments or implication; general rule. 247. Same subject; illustration. 248. Same subject; indictments for murder or manslaughter; neces- sity of averments, as to death. 249. Same subject; offenses under a statute. 250. Necessity as to certainty; general rule. 251. Highest degree of certainty not required. 252. Statutory provisions as to setting out facts and circumstances certainty. 253. Statutes requiring less strictness in pleading. 254. Where crime consists of series of acts. 255. Where crime consists of series of acts — continued. 256. Repugnancy; generally. 257. Repugnancy; application of rule. 258. Repugnancy; rejection of averment as surplusage. 259. Indictment must not charge disjunctively. Table of Contents. xiii ■86011011260. Disjunctive averments; surplusage. 261. Disjunctive averments fatal; instances. 262. Disjunctive averment not fatal; instances. 263. Surplusage does not vitiate. 264. Surplusage may be rejected. 265. Same subject; application and illustration of rule. 266. Same subject; application and illustration of rule continued. 267. Surplusage; povrer of court to reject matter as; what may not be rejected. 268. Use of participial form. 269. Use of videlicet. 270. Averment that matters are unknown to grand jury. 271. Same subject; rule illustrated. 272. Matter of inducement. 273. Matters necessarily implied. 274. Legal conclusions. 275. Legal conclusions; application of rule. 276. Matter of which court will take judicial knowledge. 277. Matter of evidence. 278. Matter of defense. 279. Matter of defense; rule illustrated. 280. When question as to sufficiency of charge may be raised. 281. Same subject continued. 282. Same subject; defects caused by verdict. 283. Same subject; application of rule. 284. Same subject; effect of statutory provisions. 285. Bill of particulars; right to generallj'. 286. Matter of requiring bill of particulars is in discretion of court. 287. Bill of particulars not part of indictment; effect of granting motion for. CHAPTEE XI. Charging the Offense — Paeticulae Aveements. Section 288. Name of offense; failure to state. 289. Name of offense; failure to state correctly. 290. Same subject; where offense created by statute. 291. Same subject; statutory provisions affecting. 292. Name of offense; application of rules. 293. Means or manner of commission of offense. 294. Same subject continued. 295. Same subject; statutory provisions — constitutionality of. 296. Averments as to place generally. 297. Averments as to place; qualifications of general rule. 298. Averments as to county or town. xiv Table of Coxtk>'Ts. Section 299. Offense indictable in different counties. 300. Where new county created after commission of offense includes place where committed. 301. Reference to venue already laid; use of words " tlien and there " — city, county or State " aforesaid." 302. Same subject; where different counties have been named. 303. Offenses committed on board vessels. 304. Indictment in State court need not negative jurisdiction of Federal court. 305. Omission to state place; power to amend. 306. Defects in stating place cured by verdict. 307. Statutes dispensing with necessity of averring place. 308. Matters of which court will take judicial notice. 309. Charging time of offense; general rule. 310. Precise time not essential. 311. When variance between time alleged and proof not material. 312. Where time is an essential element. 313. Use of word.-) "" on or about" in stating time; generally. 314. Use of words "on or about;" as affected by statute. 315. Averment as to statute of limitations, necessity of. 316. Averment of facts to avoid bar of statute of limitations. 317. Same subject; where prosecution re-referred to grand jury; con- tinuous prosecution. 318. XecessitT of repeating time and place. 319. Where indictment charges future or impossible day. 320. Same subject continued; application of rule. 321. Charging offense as of same day indictment found. 322. Offense consisting of succession of facts — charging with a con- tinuando. 323. Necessity of stating time; statutory provisions affecting. 324. Omission to state time supplied by reference to caption or other parts of indictment. 325. Omission to state, or defect in stating, time; power to amend. CHAPTER XII. Chaegi?7g the Offense — Paeticttlae Aveemexts Coxtixued. Section 326. When necessary to aver intent. 327. When intent need not be averred. 328. Offense "with intent to defraud;" sufficiency of averment. 329. Malice; necessity of averring; sufficiency of averment. 330. Averment as to wilfulness of act; sufficiency of. 331. Averment as to wilfulness of act; where insufficient. 332. Allegation that offense unlawfully done; necessity and sufficiency of. 333 f harging that act was " feloniously " done. Table of Contents. xv Section 3.34. Use of words " unlawful " or " felonious " in indictment for mis- demeanors. 335. Knowledge; when necessary to aver. 336. Knowledge; when not necessary to aver. 337. Knowledge; necessity of averring; statutes. 338. Sufficiency of averment of knowledge. 339. Setting out instrument or writing as basis of prosecution. 340. Same subject; where writing lost, destroyed, or in hands of defendant. 341. Same subject; attaching instrument to indictment. 342. Same subject; where word in instrument uncertain or illegible. 343. Same subject; effect of mistake. 344. Same subject; where may be omitted. 345. Same subject; obscene publications. 346. Same subject; obscene publications; qualification of rule as to description; New York ease. 347. Same subject; obscene publication; effect of statutes. 348. Averments describing personal property; money. 349. Same subject; should aver excuse for failure to give — unknown to grand jury. 350. Same subject; averments as to value. 351. Same subject; averments as to ownership. 352. Averments describing real property. 353. Same subject; averments as to ownership. 354. Names of third persons; necessity of stating. 355. Names of third persons; sufficiency in stating. 356. Names of third persons; names commonly known by. 357. Names of third persons; error in stating; variance; idem sonans. 358. Names of third persons ; statutes as to error in stating. 359. Names of third persons; when not necessary to state. 360. Names of third persons ; infants. 361. Names of third persons; in case of corporations. 362. Same subject continued; organization of corporation. 363. Same subject; unnecessary averments. 364. Names of third persons; partner or joint owners. 365. Names of third persons; amendment to correct error in. 366. Charging prior conviction; second conviction changing grade of offense. 367. Same subject; sufficiency of averment. 368. Same subject; as to jurisdiction of prior offense. 369. Same subject; statute making it unnecessary to allege prior con- viction; constitutionality of. 370. Same subject; averment as to discharge; sentence. xvi Table of Contents. CHAPTER XIII. Chaeging the OffexXse — Statutoey Offenses. Section 371. Statutory offenses — General rule as to charging in language of statute. 372. Qualification of general rule as to charging offense in words of statute. 373. Same subject continued — Where statute employs general or com- prehensive words. 374. Offense must be brought within words of statute. 375. Same subject — Illustration of rule. 376. Must apprise defendant with reasonable certainty of nature of accusation. 377. Same subject — Sufficient if words used make charge clear — Sur- plusage. 378. Offense composed of several elements or multiplicity of acts. 379. Same subject — Rule in New York. 380. Use of common law form in charging offense. 381. Use of words equivalent to those of statute. 382. Where statute is in disjunctive — Use of conjunctive. 383. Recital of statute on which indictment based not necessary. 384. Effect of misrecitals as to statute. 385. Misrecitals of statutes — Effect of conclusion. 386. Private statutes — Recitals as to. 387. Indictment not sufficient under statute pleader had in view but good under another statute. 388. Where several amendments to statute. 389. Rule as to charging statutory misdemeanors. 390. Exceptions in statute — General rule. 391. Same subject — Application of rule. CHAPTER Xiy. Duplicity — Joixdee of Offenses — Of Parties. Section 392. Duplicity — Joinder of offenses in one count — General rule. 393. Same subject — Application of rule. 394. Charging in different counts — Different offenses — Generally — Election. 395. Charging in different counts — Different offenses — Generally — Continued. 396. Same subject — Different felonies. 397. Same subject continued — Election. 398. Charging (different misdemeanors. 399. Where several acts may constitute offense. 59 Table of Contents. xvii Section 400. Different means or manner of committing offenses — Single count. 401. Same subject continued — Application of rule. 402. Several counts stating offense — Different ways and means. 403. Same subject — Application of rule. 404. Different offenses resulting from same act. 405. Same subject — ^Application of rule — Joinder of counts for lar- ceny and other offenses. 406. Same subject — Further application of rule. 407. Continuous acts as one offense. 408. Same subject continued. \ 409. Offenses of different degree or grade. 410. Offenses of different degree or grade — ^Application of rule. 411. Conspiracy to do criminal act and commission of act. 412. Charging commission of act and causing of act to be done- Aiding and abetting. 413. Joinder of a felony and misdemeanor. ■\ 4 14. Counts at common law and imder statute. 415. Charging acts stated in disjunctive in statute. 416. Offense affecting different articles — Different owners. 417. Offense affecting different buildings or properties — ^Arson. 418. Offense affecting different persons. 419. Different description of person affected. 420. Where description of offense includes another offense, 421. Unnecessary averment— Surplusage. 422. Imperfect description of another offense — Surplusage. 423. .Joinder of parties — Generally. 424. Necessity of joinder of parties. 425. Effect of joinder of parties. 426. Who may be joined as defendants. 427. Jpinder of husband and wife. 428. Principal and accessory or aider and abettor — Principals in first and second degree. CHAPTEK XV. CONCLirSION, IndOESEMENTS and SlGNATtTKES. Section 429. Necessity of conclusion — Generally. 430. Effect of constitutional provision as to manner of conclusion. 431. Same subject — Strictly literal compliance not necessary. 432. Same subject — Unnecessary words — Surplusage. 433. Necessity of conclusion to each count. 434. Same subject — Effect of constitutional provision as to conclusion. 435. Necessity of concluding contrary to the form of the statute. 436. Where statute merely declaratory of common law. xv'iii Table of Contej^ts. Section 437. Indictment for common law offens(> — Conclusion contrary to stat- ute — Surplusage. 438. Use of word " statutes " or " statute " in conclusion. 439. Necessity of indorsement " A true bill." 440. Same subject — Contrary view. 441. Same subject — Statutoi-y provisions requiring indorsement. 442. Indorsement of names of witnesses. 443. Indorsement of title of cause. 444. Indorsement of name or nature of offense. 445. Necessity of signature of foreman of grand jury. 446. Signature of foreman — What is sufficient. 447. Necessity of signature of public prosecutor. 448. Signature of public prosecutors — Who may sign. 449. Signature of public prosecutor — What is sufficient. TABLE OF CASES (THE KEI-EBENCES ARE TO SECTIONS.) A. SEcnorr Aaron v. State, 39 Ala. 685 299 Abernathy v. State, 78 Ala. 411 207 Abram v. State, 25 Miss. 589 80, 13C Absence v. State, 4 Ala. 397 274 Acton V. State, 80 Md. 547 276, 298 Adams v. People, 25 Colo. 532 399, 407 Adams v. State, 28 Fla. 411 293 Adams v. State, 11 Ind. 304 128 Adams v. Woods, 2 Cranch. 336 IS Aiken v. State, 90 Ga. 452 289 Aiken v. State, 41 Neb. 263 399 Aiken v. State (Neb.), 59 N. W. 888 399 Aikman v. Commonwealth, 13 Ky. Law Rep. 894 329 Ainaworth v. United States, 21 Wash. Law Rep. 806 250, 423 Akin V. State (Tex. App.), 12 S. W. 1101 409 Alden v. State, 18 Fla. 187 441, 445 Alderman v. People, 4 Mich. 414 1, 241 Alexander v. Commonwealth, 105 Pa. St. 1 220 Alexander v. Commonwealth, 90 Va. 809 410 Alexander v. State, 29 Tex. 495 240 Alexander v. State, 27 Tex. App. 533 433, 434 Alexander v. State, 27 Tex. App. 94 354 Alford V. State, 31 Tex. Cr. 299 35I Allen V. Commonwealth, 2 Bibb. (Ky.) 210 183 134 Allen V. People, 77 111. 484 ' gO Allen V. State, 13 Mo. 307 3O9 Allen V. State, 13 Tex. App. 28 245 Allen V. State, 5 Wis. 329 176 AUred v. State, 89 Ala. 112 259 Allstodt V. State, 49 Ind. 233 13 Amorous v. State (Ga. App. 1907), 57 S. E. 999 253 Anderson v. State, 5 Ark. 444, 452 240, 274, 430, 447 Anderson v. State, 104 Ind. 467 ' 175 Anderson v. State, 26 Ind. 89 44g Anderson y. State, 39 Tex. Cr. 34 I59 Anderson v. State (Tex. Cr.), 29 S. W. 786 ...'....'. 390 Andrews v. People, 117 111. 195 405 Anon., 2 Hayw. (N. C.) 140 ! ! ' ' ! 200 Anonymous, 12 Mod. 559 228 Anthony v. Commonwealth, 88 Va. 847 411 Anthony v. Commonwealth (Va.), 16 Va. L. J. 296 423 Anthony v. State, 29 Ala. 27 273 372 Arcia v. State, 28 Tex. App. 198 . .' 351 Armour Packing Co. v. United States, 153 Fed. 1, 16 374, 376 xix XX Table of Cases. SECTION- Armstrong v. Commonwealth, 16 Ky. Law Rep. 494 298 Armstrong v. State, 145 Ind. 609, 613 311, 32.3. Arnol V. Com., 80 Ky. 300 1 ' Arrington v. Commonwealth, 87 Va. 96 296, 310 Ashlock V. Commonwealth, 7 B. Mon. (Ky.) 44 141 Atkinson v. State, 34 Tex. Cr. 424 326 Atwell V. State, 63 Ala. 61 429 Augustine v. State, 20 Tex. 450 298 Austin V. State, 12 Mo. 393 112 B. Baggett V. State, 69 Miss. 625 348, 349 Bailey v. Commonwealth, 78 Va. 19 337 Bailey v. State, 39 Ind. 438 135 Bailey v. State, 4 Ohio St. 440 396 Bain Ex parte, 121 U. S. 1 29, 31, 58 Baker v. State, 4 Ark. 56, 59 394, 395, 396, 404, 405, 409, 410 Baker v. State, 53 N. J. L. 45 255 Baker v. State, 28 Tex. App. 5 197 Baldwin v. State, 12 Ind. 383 449 Bales V. State, 63 Ala. 30 97 Ball V. State, 48 Ark. 94 114, 273 Ball V. United States, 140 U. S. 118 241 Bannon v. United States, 165 U. S. 464 333 Barber v. State (Fla. 1906), 42 So. 86 281 Barlow v. State, 127 Ga. 62 445 Barnard v. State, 88 Wis. 656 .332 Barnes v. Commonwealth, 101 Ky. 556 426 Barnes v. People, 18 111. .52 357 Barnes t. State, 4 Port. (Ala.) 186 306 Barnes t. State, 40 Neb. 445 34g Barnes v. State, 5 Yerg. (Tenn.) 186 165 Barnes v. State, 42 Tex. Cr. 297 309 Barneseiotta v. People, 10 Hun (N. Y. ) , 137 217 Barnett v. State, 54 Ala. 579 228 Barnhouse v. State, 31 Ohio St. 39 3I3, 408 Barron v. The Mayor & City Council of Baltimore, 7 Peters Rep. 243, 247. 35 Barth v. State, 18 Conn. 431 ' 259 Barthslow v. State, 26 Tex. 175 33O Bartley v. State, 53 Neb. 310 " 106 301 Bartley v. State (Tex. Cr. App. 1904), 83 S. W. 190 " '224 Barton v. People, 135 111. 404 263 Barton v. State, 18 Ohio, 121 41?, Bassette v. State, 51 N. J. L. 502 371 Basye v. State, 45 Neb. 261 449 Batre v. State, 18 Ala. 119, 122 '. .' 3Yl' 372 Baysinger v. Territory (Okla.), 82 Pac. 728 '409 Beal V, State, 15 Ind. 378 '.'...'.'..'..'." 61 Beard v. State, 57 Ind. 8 ^.q Beasley v. State, 59 Ala. 20 „p„ Beasley v. State, 18 Ala. 535 ,, j Beauchamp v. State, 6 Blackf . ( Ind. ) 299 1 7|i Bell Ex parte, 19 Fla. 608 ■■■■■......... 17 Bell V. Commonwealth, 8 Grat. ( Va. ) 600 .... 1 77 ona Bell V. State, 139 Ala. 124 2„1' "t Bell V. State, 115 Ala. 25 Tnfi Ben V. State, 22 Ala. 9 33g" ^"g Table of Cases. xxi SECnON Benedict v. State, 12 Wis. 313 15» Benham v. State, 116 Ind. 112 371, 381 Benjamin F. Morris Ex parte, 45 Fla. 157 23 Bennett v. People, 96 111. 602 402, 405 Bennett v. State, 62 Ark. 516 3m Bennett v. State, 8 Humph. 118 128 Bennett v. State, 27 Tex. 701 99i Benson v. Commonwealth, 158 Mass. 164, 166 311, 396, 397 Bergen v. People, 17 111. 426 200, 268 Bernband v. State, 76 Ga. 613 357 Bernhardt v. State, 82 Wis. 23, 51 N. W. 1009 377 Berrian v. State, 22 N. J. L. 9 160 Berry v. State, 63 Ala. 126 74 Betts V. State, 66 Ga. 508, 515 85, 86 Biggers v. State, 109 Ga. 105 225 Biggs V. People, 8 Barb. (N. Y.) 547 250, 263 Billings V. State, 107 Ind. 54 202 Binger v. People, 21 111. App. 367 227, 359 Bink V. State (Tex. Cr. 1906), 98 S. W. 863 433 Bird V. State, 53 Ga. 602 108 Bird V. State, 103 Tenn. 343 441, 445 Birney v. State, 8 Ohio, 230 335 Bishop V. State, 118 Ga. 799 428 Black V. State, 1 Ohio St. 61 354 Blackburn v. State, 50 Ohio St. 428 366 Blackman v. Commonwealth, 124 Pa. St. 578 316 Blackwell v. State, 30 Tex. App. 672 374 Blair v. State, 5 Ohio C. C. 496 420 Blaney v. State, 74 Md. 153 88 Blanton v. State, 1 Wash. 265 326 Blevins v. State, Meigs (Tenn. ) , 82 140 Block V. State, 66 Ala. 493 386 Blodgett V. State, 50 Neb. 121 397, 404, 406 Blough V. State, 121 Ind. 355 374 Blume V. State, 154 Ind. 343 439, 446 Blyew V. Commonwealth, 91 Ky. 200 107 Blyew V. Com., 12 Ky. Law Eep. 742, 743 1 Board of County Commissioners v. Graham, 4 Colo. 201,202. .1, 128, 441, 445 Bobel V. People, 73 111. 19 318 Bodenhamer v. State, 60 Ark. 10 371 Bodkin v. State, 56 Ind. 133 143 Boggs V. State (Tex. Cr.), 25 S. W. 770 301 Boland v. People, 25 Hun (N. Y.) , 427 399 Bolen V. People, 184 111. 338 327, 333, 371 Boles V. State, 58 Ark. 35 351 Bolln V. ISfebraska, 176 U. S. 83 26, 37, 38 Bolln V. State, 51 Neb. 581 37, 51 Bonds V. Tennessee, Mart &, Y. (Tenn.) 143 170 Bone V. State, 18 Ark. 109 390 Bonner v. State, 55 Ala. 242 160 Bonner v. State, 29 Tex. App. 223 106 Boren v. State, 32 Tex. Cr. 637 225 Bork V. People, 91 N. Y. 513 382, 39B Boswell V. State, 8 Ind. 499 412 Boulo V. State, 51 Ala. 18 72 Bouser v. State, 1 Ind. 408 390 Bowen v. State, 106 Ala. 178, 17 So. 335 351, 405 xxii Table or Cases. SECTION Bowen v. State, 81 Ga. 482 128, 144 Bowers v. State, 45 Tex. Cr. 1 «,: 146 Bowler v. State, 41 Miss. 540 333 Bowles V. State, 13 Ind. 427 372 Braddy v. State, 102 Ga. 568 309 Bradford v. State, 54 Ala. 230 147 Bradlangh v. Queen, 3 Q. B. D. 607 280 Brady v. Territoiy {Ariz. 1900), 60 Pac. 698 280 Branson v. State, 99 Ga. 194 148 Brass v. State, 45 Fla. 1 286 Brassfield v. State, 55 Ark. 556 307 Breeland v. State, 79 Miss. 527 245, 279, 392 Brennan v. People, 113 111. App. 361 371 Brewer v. State, 5 Tex. App. 248 372 Bridgeman v. United States, 140 Fed. 577 400 Brittin v. State, 10 Ark. 299 390 Brooks V. State, 9 Ala. 9 72 Broon v. State (Tex. Cr. App. 1903 ) , 77 S. \T. 12 178 Brotherton v. People, 75 N. Y. 159 439 Brown v. Commonwealth, 22 Ky. Law Rep. 1582 367 Brown v. Commonwealth, 78 Pa. St. 122 176 Brown v. Commonwealth, 86 Va. 466 355, 432, 447 Brown v. New Jersey, 175 U. S. 172, 176 26 Brown V. People, 29"Mieh. 232 237 Brown V. State, 10 Ark. 607 136 Brown \ . State, 89 Ga. 340 33 Brown v. State, 86 Ga. 633 348 Brown v. State, 7 Humph. 155 128 Brown v. State, 5 Yerg. (Tenn.) 367 425 Brown v. State, 46 Tex. Cr. R. 572 184 Brown v. State, 16 Tex. Cr. App. 245 , 195, 196 Brown v. State, 26 Tex. App. 540 241, 361 Brown v. William.?, 31 Me. 401 g41 Brown Eason v. State, 1 1 Ark. 481 10 Brown, Ex parte, 40 Fed. 81 30 Brucker v. State, 16 Wis. 255 73 Bruen v. People, 206 111. 417 80, 81 Brumley v. State, 11 Tex. App. 114 205 Bryne v. State, 47 Ind. 120 /'[ I3 Bull, Ex parte, 42 Cal. 196 100 Buller V. State, 33 Tex. Cr. 551 /_'/_ 241 Bulloch V. State, 10 Ga. 47 250, 428 Burch V. State, 1 Tex. 608 372J 373 Burchard v. State, 2 Oreg. 78 264 Burgess v. Commonwealth, 2 Va. Cas. 483 164 Burgess v. State, 44 Ala. 190 392 Burgess v. State, 81 Miss. 482 394 Burk V. State, 2 Har. & J. 426 [. .._ 413 Burnett v. Hind, 3 Johns. R. (N. Y.) 438 278 Bumey v. State, 87 Ala. 80 349 Burrell v. State, 25 Neb. 581 398 Burroughs v. State, 17 Fla. 643 235 Burton v. United States, 202 U. S. 344, 373 377 Burton v. State, 75 Ind. 477 . . . . 213 Bush V. Republic, 1 Tex. 455 373 Bush V. Republic, 1 Tex. 160 246 Bushman v. Commonwealth, 138 .Mass. 507 4]6 Butler V. Commonwealth, 81 Va. 169 gg Table of Oases. xxiii SECTIOIf Butler V. State, 22 Ala. 43 334 Butler V. State, 25 Fla. 247 256 Butler V. State, 97 Ga. 404 33 Butler V. State, 113 Ind. 5 13 Butler V. State, 3 McC. L. 383 381, 383, 385 Butler V. Wentworth, 84 Me. 25 28, 29, 58 Batman's Case, 8 Me. 113 438 Byam v. State, 17 Wis. 145 181 Byman v. State, 17 Ohio St. 142 241 Byrd v. State, 1 How. (Miss.) 103 169 Byrne v. State, 12 Wis. 519 399 C. Caesar v. State (Fla. 1905), 39 So. 470 209 Cagle V. State (Ala. 1907), 44 So. 381 430 Caha V. United States, 152 U. S. 211 199, 200, 276, 448 Cain V. State, 58 Ark. 43 250 Cain V. State, 4 Black! (Ind.) 512 429 Cain V. State, 18 Tex. 387 333 Caldwell v. State, 28 Tex. App. 566 240, 273, 295, 324 Caldwell v. Texas, 137 U. S. 692 45 Camp V. Camp, 25 6a. 689 292, 430 Campbell v. State, 10 Ind. 420 213 Campbell v. State (Miss.) , 17 So. 441 349, 359 Campbell v. State, 9 Yerg. 333, 335 1 Cannon v. State, 60 Ark. 564 208, 381 Capps V. State, 4 Iowa, 502 334 Carden v. State, 89 Ala. 130 263 Carder v. State, 35 Tex. App. 105 241 Carleton v. State, 100 Ala. 131 395 Carliste v. State, 32 Ind. 55 306 Carpenter v. People, 64 N. Y. 483 76 Carpenter v. State, 4 How. (Miss.) 163 163, 164, 169 Carper v. State, 27 Ohio St. 572 251 Carr v. State, 104 Ala. 4 349 Carson v. State, 69 Ala. 235 386, 390 Carter v. State, 2 Ind. 617 438 Casey v. State, 53 Ark. 334, 14 S. W. 90 330 Cash V. State, 10 Humph. Ill 396 Cave V. State, 33 Tex. Cr. 335 294 Cawley v. State, 37 Ala. 152 396 Cearfoss v. State, 42 Md. 403 241 Cecil V. Territory, 16 Okla. 197, 82 Pac. 654 ; . . . 310 Cerny v. State, 62 Neb. 626 99 Chandler v. State, 25 Fla. 728 311 Chapman v. People, 39 Mich. 357 237 Chapman v. State, 18 Ga. 736 357 Chapman v. State, 61 Neb. 888 371 Charge to Grand Jury, 30 Fed. Cas. No. 18,255 3 Chase v. People, 2 Colo. 509 17 Chase v. State, 46 Miss. 683 68 Chase v. Van Buren, Circuit Judge (Mich. 1907), 111 N. W. 750 392 Check V. State, 7 Humph. (Tenn.) 161 274 Cheek v. State, 38 Ala. 227 354 Chelsea v. State, 121 Ga. 340 129 Cherry v. State, 6 Fla. 679 439, 443, 444 Chessley v. State (Tex. Cr. App. 1903), 74 S. W. 548 202 xxiv Table of Cases. SECTION Chevarrio v. State, 17 Tex. App. 390 180, 181 Chivario v. State, 15 Tex. App. 330 418 Christmas v. State, 53 Ga. 81 1^^ Choen v. State, 85 Ind. 209 448 City Council v. King, 4 McC. L. (S. C.) 487 21.5 Claasen, In re, 140 U. S. 200, 205 29 Clare v. State, 30 Md. 163, 165 68, 70 Clark V. Commonwealth, 123 Pa. St. 555 101 Clark V. State, 34 Ind. 436 313 Clark V. State, 24 Ind. 151 135 Clark V. State, 1 Ind. 253 134 Clark V. State, 86 Tenn. 511 348 Clark V. State, 32 Tex. Cr. 412 241 Clark V. State, 28 Tex. Cr. 189 416 Clarke v. State, 90 Ga. 448 311 Clearly v. State, 56 Ark. 124 371 Clement v. United States, 149 Fed. 305, 313 251, 281 Clemmons v. State, 43 Fla. 200 210 Clere v. Commonwealth, 3 Grat. (Va.) 615 89 Click V. State, 3 Tex. 282 241 Clifford V. State, 29 Wis. 327 259, 382 Clive V. State, 78 Miss. 661 399 Clopper V. State, 4 Tex. 242, 245 8 Clue V. State, 78 Miss. 661 417 Coats V. People, 4 Park. Cr. R. (N. Y. ) 662 396 Cobb V. State, 45 Ga. 11 259 Coburn v. State (Ala. 1907), 44 So. 68 445 Cody V. Commonwealth, 10 Gratt. 776 309 Cody V. State, 3 How. (Miss.) 29 136 Coffey T. Superior Court of Sacramento County, 2 Cal. App. 453 73 Coffin V. United States, 162 U. S. 664 282 . Coleman v. State (Tex. Cr. 1901), 62 S. W. 753 323 Collins V. People, 39 111. 233 439, 444 Collins V. People, 1 Hun (N. Y.), 610 91 Collins V. State, 13 Fla. 651 128 Collins V. State, 6 Tex. App. 647 305 Colombo V. People, 182 111. 411 357 Colson V. State, 7 Blackf. 590 390 Colter V. State, 41 Tex. Cr. 78 236 Colter V. State, 40 Tex. Cr. 165 342 Commonwealth v. Adams, 92 Ky. 134 53 Commonwealth v. Adams, 127 Mass. 15 326, 428 Commonwealth v. Adams, 7 Gray (Mass.) , 43 428 Commonwealth v. Adams, 4 Gray (Mass.) , 11 322 Commonwealth v. Ailstock, 3 Gratt. 650 202 Commonwealth v. Alfred, 4 Dana, 496 3X0 311 Commonwealth v. A Man whose Name is Unknown, 6 Gray (Mass.), 489. 384 Commonwealth v. Atwood, 1 1 Mass. 93 267 Commonwealth v. Ault, 10 Pa. Super. Ct. 651 395 41Q Commonwealth v. Aultmire, 22 Ky. Law Rep. 511 319* 320 Commonwealth v. Avery, 14 Bush. ( Ky. ) 625 _' 17 Commonwealth v. Bailey, 1 Mass. 62 344 Commonwealth v. Barker, 12 Cush. (Mass.) 186 31g Commonwealth v. Barrett, 9 Leigh (Va.), 665 7 Commonwealth v. Beadley, 16 Pa. Super Ct. 561 428 Commonwealth v. Beaman, 8 Gray (Mass.), 497 '_\ 449 Commonwealth v. Bean, 11 U. S. 414 ' ^ 372 Commonwealth v. Becker, 14 Pa. Super. Ct. 430 I45 Table of Cases. xxv SECTION Commonwealth v. Bell, 17 Ky. Law Rep. 277 374 Commonwealth v. Berry, 5 Gray ( Mass. ) , 93 106 Commonwealth v. Bolkman, 3 Pick. 281 264 Commonwealth v. Boynton, 2 Allen (Mass.), 160 33ff Commonwealth v. Boynton, 12 Cush. (Mass.) 499 326, 337 Commonwealth v. Brothers, 158 Mass. 199 393 Commonwealth v. Bowman, 16 Ky. Law Rep. 222 241 Commonwealth v. Bradley, 16 Pa. Super. Ct. 561 428 Commonwealth v. Bradney, 126 Pa. St. 199 77 Commonwealth v. Braynard Thach. Cr. Gas. 146 311 Commonwealth v. Bredin, 165 Pa. St. 224 227 Commonwealth v. Brown, 147 Mass. 585 76 Commonwealth v. Brown, 116 Mass. 339 151, 158 Commonwealth v. Brown, 80 Mass. 419 400 Commonwealth v. Brown, 15 Gray (Mass.), 189, 191 352 Commonwealtli v. Brown, 14 Gray, 419 264 Commonwealth v. Brown, 12 Gray (Mass.) , 135 425 Commonwealth v. Brown, 23 Pa. 'Super. Ct. 470 227 Commonwealth v. Bryant, 11 Ky. Law Rep. 426 371 Commonwealth v. Bugbee, 4 Gray (Mass.), 206 318 Commonwealth v. Butler, 1 Allen (Mass.), 4 207 Commonwealth v. Butler, 144 Pa. St. 568 327 Commonwealth v. Buzzard, 5 Grat. (Va.) 694 235 Commonwealth v. Cain, 14 Bush. (Ky.) 525 315 Commonwealth »-. Caldwell, 14 Mass. 330 273 Commonwealth v. Call, 21 Pick. (Mass.) 515 189, 201, 203 Commonwealth v. Carney, 4 Gratt. (Va.) 546 433 Commonwealth v. Carson, 166 Pa. St. 179 329, 399 Commonwealth v. Carter, 14 Ky. Law Rep. 301 387 Commonwealth \-. Cawood, 2 Va. Cas. 527 128, 129 Commonwealth v. Chamberlain, 107 Mass. 209 166, 41S Commonwealth v. Chesapeake & Ohio Railway Company, 101 Ky. 159... 371 Commonwealth v. Christian, 7 Gratt. (Va.) 631, 635 3, 4 Commonwealth v. Church, 17 Pa. Super. Ct. 37, 39 404, 405 Commonwealth v. Clancy, 154 Mass. 128 301, 393 Commonwealth v. Clark, 4 Ky. Law Rep. 622 274, 275 Commonwealth v. Clark, 162 Mass. 495 409 Commonwealth v. Clark, 4 Cush. (Mass.) 596 195, 196 Commonwealth v. Clark, 2 Ashm. 105 374 Commonwealth v. Clark, 2 Va. Cas. 401 , 229 Commonwealth v. Clemmer, 190 Pa. St. 202 106 Commonwealth v. Clififord, 8 Cush. (Mass.) 215 372 Commonwealth v. Cody, 165 Mass. 133 106 Commonwealth v. Coleman, 184 Mass. 198 399 Commonwealth v. Colton, 11 Gray (Mass.) , 1 166 Commonwealth v. Connelly, 163 Mass. 539 371 Commonwealth v. Cook, 52 Ky. 149 372 Commonwealth v. Cook, 13 B. Mon. 149 376 Commonwealth v. Cook Co., 102 Ky. 288 315 Commonwealth t. Cooley, 10 Pick. (Mass.) 37 435 Commonwealth v. Cousins, 2 Leigh (Va.), 708 299 Commonwealth v. Creed, 8 Gray (Mass.), 387 306 Commonwealth v. Curran, 119 Mass. 206 399 Commonwealth v. Darling, 129 Mass. 112 426 Commonwealth v. Davis, 94 Ky. 612 310 Commonwealth v. Davis, 11 Pick. (Mass.) 432 255, 285, 287 Commonwealth v. Dedham, 16 Mass. 141 227 Commonwealth v. Delamater, 2 Pa. Dist. Rep. 118 392 xxvi Table of Cases. SEcnos Commonwealth v. Delehan, 148 Mass. 254 264 Commonwealth v. Desmarteau, 16 Gray (Mass.), 1 195, 199, 211 Commonwealth v. Devine, 155 Mass. 224 338, 42& Commonwealth v. Dill, 159 Mass. 61 381 Commonwealth v. Donovan, 170 Mass. 228 279 Commonwealth v. Donovan, 13 Allen (Mass. ) , 571 225 Commonwealth v. Doran, 14 Gray (Mass.) , 37 309 Commonwealth v. Drew, 3 Cush. (Mass.) 279, 282 106 Commonwealth v. Duff, 87 Ky. 586 407 Commonwealth v. Dunley, 157 Mass. 386 241 Commonwealth v. Dunn, 111 Mass. 426 407 Commonwealth v. Dutton, 5 Gray, 89 309 Commonwealth v. Eastman, 1 Cush. (Mass.) 189 294 Commonwealth v. Eaton, 15 Pick. (Mass.) 273 420 Commonwealth v. Edwards, 4 Gray (Mass.), 1 169, 175. 301 Commonwealth v. Egan, 190 Pa. St. 10 285, 286 Commonwealth v. Elliston, 14 Ky. Law Rep. 216 353 Commonwealth v. Elwell, 1 Gray (ilass.) , 463 322 Commonwealth v. Elwell, 2 Mete. (Mass.) 190 423, 426 Commonwealth v. Eamum, 127 Mass. 63 250 Commonwealth v. Farrell, 105 Mass. 189 286 Commonwealth v. Farren, 9 Allen (ilass.), 489 336, 421 Commonwealth v. Ferguson, 8 Pa. District R. 120 227 Commonwealth v. Filbum, 119 Mass. 294 372 Commonwealth v. Finn, 27 Ky. Law Rep. 771 366 Commonwealth v. Fisher, 7 Gray ( Mass. ) , 492 160, 164, 181 Commonwealth v. Fitchburg R. R. Co., 10 Allen, ISO 390 Commonwealth t. Fohnestock, 15 Pa. Co. Ct. R. 598 372 Commonwealth v. FoUansbee. 1-55 Mass. 274 273 Commonwealth v. Freelove, 150 Mass. 66 420 Commonwealth v. Frey, 50 Pa. St. 24.5 421 Commonwealth v. Gale, 11 Gray (Mass.), 320 219 Commonwealth v. Gallagher, 1 Allen (Mass.), 592 352 Commonwealth v. Gardner, 7 Gray ( Mass. ) , 494 309. 322 Commonwealth t. Gee, 6 Cush. (Mass.) 174 165 Commonwealth v. Gennerette, 10 Pa. Super. Ct. 598 285 Commonwealth v. Giles, 1 Gray, 466 286 Commonwealth v. Gill, 14 Gray ( ilass. ) , 400 225 Commonwealth v. Gillen, 2 Allen (Mass.) , 502 298 Commonwealth v. Gillespie, 7 Serg. & R. 469 42.T Commonwealth v. Goulding, 135 Mass. 552 274 202 Commonwealth v. Grece, 126 Pa. St. 531 87 Commonwealth v. Green, 126 Pa. St. 531, 537 '.[ 2 Commonwealth v. Grey, 2 Gray (Mass.), 501 259, 261 Commonwealth v. Grimes, 10 Gray (Mass.), 470 270, 348 Commonwealth v. Haas, 57 Pa. St. 443 10 Commonwealth v. Hagarman, 10 Allen (Mass.), 401 194, 214 Commonwealth v. Hall, 15 Mass. 240 241 352 Commonwealth v. Hall, 23 Penn. St. 104 392, 399, 400^ 404 Commonwealth v. Halley, 3 Gray ( Mass. ) , 458 366 Commonwealth v. Hamilton, 15 Gray (Mass.), 480 166 Commonwealth v. Harrington, 130 Mass. 35 47, 369 Commonwealth v. Harris, 13 Allen (Mass.) , .=>?,4 420 Commonwealth v. Harris, 7 Gratt. ( Va. ) 600 426 Commonwealth v. Hart, 10 Gray (Mass.), 465 2r)9, 420 Commonwealth v. Hart, 11 Cush. (Mass.) 130, 135 .' 278 Commonwealth v. Hartford ( Ma»«. 1007 ) , 79 X. E. 784 285 Commonwealth v. Havens, 6 Pa. Co. Ct. Rep. 545 2S.5 Table of Cases. xxvii SECTION Commonwealth v. Hayden, 163 Mass. 453 59 Commonwealth y. Hersey, 2 Allen (Mass.), 173, 180 326, 327 Commonwealth v. Hill, 5 Gratt. ( Va.) 682 390 Commonwealth v. Hills, 10 Cush. 530 396 Commonwealth v. Hines, 101 Mass. 33 158,159 Commonwealth v. Hitchings, 5 Gray (Mass.), 482 319 Commonwealth v. Hoggel, 7 Kulp. 10 351 Commonwealth v. HolmeSj 165 Mass. 457 420 Commonwealth v. Holmes, 17 Mass. 336 345 Commonwealth v. Hooper, 5 Pick. (Mass.) 42 438 Commonwealth v. Hope, 22 Pick. (Mass. ) 1 420 Commonwealth v. Horregan, 127 Mass. 450 48 Commonwealth v. Hoxey, 16 Mass. 385 437 Commonwealth v. Hoye, 11 Gray (Mass.) , 462 385 Commonwealth v. Hulbert, 12 Mete. (Mass.) 446 338 Commonwealth v. Hulton, 5 Gray (Mass. ) , 89 309 Commonwealth v. Hunt, 4 Pick. (Mass. ) 252 223 Commonwealth v. Huasey, 111 Mass. 432 279 Commonwealth v. Igo, 158 Mass. 199 395 Commonwealth v. Inhabitants of Phillipsburg, 10 Mass. 78 227 Commonwealth v. Inhabitants of Springfield, 7 Mass. 9 435 Commonwealth v. Inhabitants of Stockbridge, 1 1 Mass. 279 435 Commonwealth v. Inhabitants of Waterborougli, 5 Mass. 257 18 Commonwealth v. Isreal, 4 Ijeigh, 675 335 Commonwealth v. Jackson, 1 Grant's Cas. (Pa.) 262 229, 233 Commonwealth v. Jackson, 2 Grant's Cas. 262 227, 229 Commonwealth v. Jacobs, 152 Mass. 276 392, 396 Commonwealth v. James, 1 Pick. (Mass.) 375 150 Commonwealth v. Johnson, 175 Mass. 152 277 Commonwealth v. Johnson, Thaeh. Cr. Cas. (Mass.) 284 169, 180, 181 Commonwealth v. Johnson, 3 Pa. Dist. R. 222 354 Commonwealth v. Keger, I Duv. (Ky.) 240 145 Commonwealth v. Kelcher, 3 Mete. (Ky. ) 484 213 Commonwealth v. Kirby, 2 Cush. (Mass.) 577 335 Commonwealth v. Krathofsky, 171 Mass. 459 83 Commonwealth v. Lampton, 4 Bibb. (Ky.) 261 355 Commonwealth v. Langley, 14 Gray (Mass.), 21 318, 322 Commonwealth v. Lavery, 101 Mass. 207 306 Commonwealth v. Lawless, 101 Mass. 32 256 Commonwealth v. Lewis, 140 Pa. St. 561 406, 409 Commonwealth v. Logan, 12 Gray (Mass.), 136 352 Commonwealth v. Lord, 147 Mass. 399 264 Commonwealth v. Lutz (Pa.), 9 Lane. L. Rev. 241 294 Commonwealth v. Magowan, 1 Mete. (Ky.) 368 251 Commonwealth v. Malloy, 119 Mass. 347 371 Commonwealth v. Mann, 12 Ky. Law Rep. 477 348 Commonwealth v. Maxwell, 2 Pick. 139 390 Commonwealth v. McCarthy, 152 Mass. 577 273 Commonwealth v. McClanaham, 2 Mete. 8 390 Commonwealth v. McClure, 1 Pa. Co. Ct. R. 182 286 Commonwealth v. McConce, 164 Mass. 162 345 Commonwealth v. McKenney, 14 Gray (Mass.), 1 301, 322 Commonwealth v. McKinney, 8 Grat. (Va.) 589 143 Commonwealth v. McLaughlin, 105 Mass. 460 327 Commonwealth v. McLaughlin, 12 Cush. (Mass.) 615 409, 410 Commonwealth v. Megibben Co., 101 Ky. 195 315 Commonwealth v. Megibben Co., 19 Ky. Law R. 291 187 Commonwealth v. Melian, 11 Gray (Mass.), 322 225 xxviii Table of Cases. SECTION Commonwealth v. Meserve, 154 Mass. 64 250 Commonwealth v. Montzer, 162 Pa. 646 SS-t Commonwealth v. Moody, 143 Mass. 177 393 Commonwealth v. Moore, 2 Dana, 402 285 Commonwealth v. Moran, 130 Mass. 281 76 Commonwealth v. Morningstar, 12 Pa. Co. Ct. E. 34 374 Commonwealth v. Morse, 24 Pa. Co. Ct. 221 87 Commonwealth v. Mullen, 150 Mass. 394 396, 428 Commonwealth v. Mullen, 13 Allen (Mass.), 551 161 Commonwealth v. Murphy, 11 Cush. (Mass.) 472 106 Commonwealth v. Murphy, 2 Gray (Mass. ) , 510 427 Commonwealth v. Murphy, 9 Lane. L. Rev. 294 229 Commonwealth v. Nailor, 29 Pa. Super. Ct. 271 309, 311, 315, 319 Commonwealth v. Naylor, 34 Pa. St. 86 15 Commonwealth v. Newbury, 2 Pick. (Mass.) 51 352 Commonwealth v. Nichols, 10 Allen (Mass.), 199 420 Commonwealth v. North Brookfield, 8 Pick. (Mass. ) 463 296 Commonwealth v. Nutter, 8 Gratt. ( Va.) 698 138 Commonwealth v. Odlin, 23 Pick. (Mass.) 275 278, 322 Commonwealth v. Patterson, 2 Mete. (Ky.) 274 253 Commonwealth v. Perkins, 1 Pick. (Mass.) 388 213, 221, 230 Commonwealth v. Perrigo, 3 Mete. 5 250 Commonwealth v. Phillips, 16 Pick. (Mass.) 211 245 Commonwealth v. Philpot, 130 Mass. 59 266, 334 Commonwealth v. Powell, 71 Ky. 7 392 Commonwealth v. Powell, 8 Bush. 7 420 Commonwealth v. Powell, 23 Pa. Super. Ct. 370 311 Commonwealth v. Pray, 13 Pick. (Mass.) 359 254. 258, 322 Commonwealth v. Prescott, 151 Mass. 69 371 Commonwealth v. Priestly, 24 Pac. Co. Ct. 543 117, 120 ' Commonwealth v. Ramsey, 1 Brew.st. 422 2.>' • Commonwealth v. Ranson, 183 Mass. 491 15 Commonwealth v. Raymond, 97 Mass. 567 33n Commonwealth t. Reynolds, 14 Gray (Mass.), 87 258, 272, 437 Commonwealth v. Ripperdon, 1 Litt. Sel. Cas. (Ky.) 194 445 Commonwealth v. Robertson, 162 Mass. 90 293, 324 Commonwealth v. Robinson, 165 Mass. 426 224 Commonwealth v. Roland, 97 Mass. 598 145 Commonwealth v. Rosenberg, 1 Pa. Co. Ct. R. 273 285 Commonwealth v, Rucker, 14 B. Mon. (Ky.) 228 229 Commonwealth v. Ryan, 152 Mass. 283 392 Commonwealth v. Ryan, 5 Mass. 90 83 Commonwealth v. Sargent, Thach. Cr. Cas. (Mass.) 116 118, 445 Commonwealth v. Sawtelle, 11 Cush. (Mass.) 142 270, 349 Commonwealth v. Sharpless, 2 S. & R. (Pa.) 91 345 Commonwealth v. Scannell, 11 Cush. (Mass.) 548 278 Commonwealth v. Schall, 12 Pa. Co. Ct. R. 5.54 333 Commonwealth v. Schall (Pa. C. P.), 9 Lane. L. Rev. 332 348 Commonwealth v. Sehatzman, 26 Ky. L. Rep. 508 200 Commonwealth v. Scott, 10 Gratt. (Va.) 749 229 Commonwealtli v. Seroggin, 22 Ky. Law Rep. 13.!.s 290 Commonwealth v. Sellers, 130 Pa. St. 32 33<5 Commonwealth v. Shaii'uer, 2 Pearson, 4511 ].51 Commonwealth v. Sharpless, 2 S. & R. (Pa.) 91 34ti Commonwealth v. Shea, 150 Mass. 314 ;i27 Commonwealth v. Shedd, 7 Cush. (Mass. i 514 294 Commonwealth v. Sheedy, 159 ilass. 55 3.54 Commonwealth v. Shelby, 18 Ky. Law Rep. 781 108 Table of Cases. xxLx SECTIOW -Commonwealth v. Sherman, 13 Allen, 248 354 Commonwealth v. Sholes, 13 Allen (Mass.) , 554 181 Commonwealth v. Shupp, 6 Kulp. (Pa.) 430 , 90 Commonwealth v. Simpson, 9 Mete. (Mass.) 138 266, 421 Commonwealth v. Sims, 2 Va. Cas. 374 229 Commonwealth v. Sinclair (Mass. 1907), 80 N. E. 799, 801 270, 285, 2H4 Commonwealth v. Slaughter, 12 Ky. Law Eep. 893 2D0 Commonwealth v. Sloan, 4 Cush. (Mass.) 52 420 Commonwealth v. Smith, 6 Bush (Ky.) , 263 289 Commonwealth v. Smith, 153 Mass. 97 309 Commonwealth v. Smith, 108 Mass. 486 158, 159 Commonwealth v. Smyth, 11 Cush. 473 440 Commonwealth v. Snelling, 15 Pick. (Mass.) 321 287 Commonwealth v. Sober, 15 Pa. Super. Ct. 520 399 Commonwealth v. Soper, 133 Mass. 393 310 Commonwealth v. Springfield, 7 Mass. 9 276, 298, 308 Commonwealth v. Squire, 1 Mete. (Mass.) 258 334 Commonwealth v. St. Clair, Gratt. (Va.) 556 83 Commonwealth v. Stevens, 1 Mass. 203 344 Commonwealth v. Stewart, 2 Pa. Dist. E. 43 381 Commonwealth v. Stoddard, 9 Allen (Mass.), 280 354 Commonwealth v. Stone, 152 Mass. 498 358 Commonwealth v. Stone, 105 Mass. 469 447 Commonwealth v. Stone, 3 Gray (Mass.) , 453 142, 165, 176 Commonwealth v. Stout, 7 B. Mon. (Ky.) 247 335, 336, 372 Commonwealth v. Stowell, 9 Mete. 569 422 Commonwealth v. Strangford, 112 Mass. 289 3-19 Commonwealth v. Sugland, 4 Gray (Mass.), 7 278 Commonwealth v. Sullivan, 14 Gray (Mass.) , 97 309 Commonwealth v. Sullivan, 6 Gray (Mass.), 477, 479 278, 318 Commonwealth v. Swanger, 108 Ky. 579 108 Commonwealth v. Symonds, 2 Mass. 162 392 Commonwealth v. Tack, 20 Pick. 356 406 Commonwealth v. Tarbox, 1 Cush. (Mass.) 66 339, 345 Commonwealth v. Taylor, 12 Pa. Co. Ct. R. 326 88, 126 Commonwealth v. Taylor Co., 19 Ky. Law R. 1334 187 Commonwealth v. Terry, 146 Mass. 203, 208 393 Commonwealth v. Thompson, 159 Mass. 56, 33 N. E. 1111 ; 402 Commonwealth v. Thompson, 116 Mass. 346 410, 420 Commonwealth v. Tiernan, 4 Grat. ( Va.) 545 131 Commonwealth v. Tolliver, 8 Gray (Mass.), -386 306 Commonwealth v. Tolman, 149 Mass. 229 352 Commonwealth v. Towles, 5 Leigh ( Va. ) , 743 4 Commonwealth v. Town of Northampton, 2 Mass. 116 280 Commonwealth v. Trimmer, 1 Mass. 476 364 Commonwealth v. Tryon, 99 Mass. 442 427 Commonwealth v. Tuck, 20 Pick. (Mass. ) 356 420 Commonwealth v. Twitchell, 4 Cush. (Mass.) 74 332, 392, 420 Commonwealth v. Waite, 11 Allen (Mass.), 264 336 Commonwealth v. Walker, 163 Mass. 226 264, 366 Commonwealth v. Walsh, 124 Mass. 32 76 Commonwealth v. Walters, 6 Dana { Ky. ) , 290, 291 246, 376, 446 Commonwealth v. Ward, 2 Mass. 397 344 Commonwealth v. Ward, 13 Ky. Law Rep. 422 372 Commonwealth v. Warren, 143 Mass. 568 225, 357 Commonwealth v. Washburn, 128 Mass. 421 384 Commonwealth v. Welsh, 1 Allen (Jlass.) , 1 352 -Commonwealth v. Wheeler, 162 Mass. 429 296, 302, 308 XXX Table of Cases. sEcnow Commonwealth v. Whitaker, 25 Pa. Co. Ct. 42 117, 120 Commonwealth v. Williams, 2 Cush. (Mass.) 582, 588 312, 348, 351, 353 Commonwealth v. Williams, 149 Pa. St. 54 302 Commonwealth v. Williams, 5 Gratt. (Va.) 702 442 Commonwealth v. Wolfinger, 7 Kulp. 537 327 Commonwealth v. Wood, 2 Cush. (Mass.) 149 73 Commonwealth v. Wood, 4 Gray (Mass.), 11 286, 322 Commonwealth v. Wood, 2 Pa. Dist. E. 823 241 Commonwealth v. Woods, 10 Gray (Mass.), 477 103, 357 Commonwealth v. Woodward, 157 Mass. 516 85 Commonwealth v. Wright, 166 Mass. 174 264 Commonwealth v. Young, 7 B. Mon. (Ky.) 1 429 Conner v. Commonwealth (Ky.) , 16 8. W. 454 366 Conner v. Commonwealth, 13 Bush. (Ky.) 714 237, 238, 374 Connor v. Stat«, 29 Fla. 455 296, 299, 302 Conner v. State, 25 Ga. 515 310, 319 Conner v. State, 18 Ind. 428 128 Constitutionality of House Bill In Matter of No. 158, In re, 21 Pac. 472 17, 18, 51 Cook V. State, 25 Fla. 698 372 Cook V. State, 20 Fla. 802 29* Cook V. State, 119 Ga. 108 210, 211 Cook V. State, 26 Ga. 593 .'?90 Cook V. State, 11 Ga. 53 322 Cook V. State, 72 Miss. 517 208, 209 Cook V. State, 57 Miss. 654 129 Cook v. State, 24 N. J. L. 843 410 Cooper V. State, 89 Ga. 222 351 Cooper v. State, 79 Ind. 206 128, 441, 445 Cooper V. State, 59 Miss. 267 129 Copeland v. State, 97 Ala. 80, 12 So. 181 374 Copping V. State, 7 Tex. App. 61 382 Cordson v. State (Neb. 1906), 109 N. W. 764 371 Cornelius v. State, 12 Ind. 782 170 Cornell v. State, 66 Tenn. 520 372, 420 Cornell v. State, 104 Wis. 527 418 Cornwell v. State, 53 Miss. 385 127, 144 Cornwell v. Tennessee, Mart & Y. (Tenn. ) 147 170 Corryell, Matter of, 22 Cal. 183. 241 Cost V. State, 96 Ala. 60 371 Cotton V. State, 4 Tex. 260 355^ 357 Courtney v. State, 5 Ind. App. 356 128 129 Covey V. State, 4 Port. (Ala. ) 186 SOs' 396 Cowley V. People, 21 Hun, 415 ' 355 Cox v. People, 80 N. Y. 500 76, 327, 329, 380 Cox V. State, 76 Ala. 66 423 Cox V. State, 69 Ala. 231 221 Cox V. State, 8 Tex. 254 . . . 430 Crabb v. State, 88 Ga. 590 ', , _ 383, 384, 335 Grain v. State, 2 Yerger (Tenn.) , 390 435 Grain v. United States, 162 U. S. 636 400 Crane v. State, 26 Tex. App. 482 482 Crawford v. State, 2 Ind. 132 '.'.'.'.'.'.'........ 438 Crichton v. People, 1 Abb. Dec. 467 264 301 Crichton v. People, 6 Park. Cr. R. 363 . . ' 296 Crinser v. State, 18 N. J. L. 206 437 Crittender v. State, 134 Ala. 145 420 Crook V. State, 27 Tex. App. 198 251 Table ov Cases. ^xxi SECTION Cross V. State, 63 Ala. 40 72 Crow V. State, 41 Tex. 468 422 Crow V. State (Tex. Cr. 1905), 90 S. W. 650 392 Crowley v. United States, 194 U. S. 461, 472 81 Cruiser v. State, 18 N. J. L. 206 127 Crumers v. State, 28 Tex. App. 516 348 Crump V. Commonwealth, 84 Va. 927 294 Crutz V. State, 4 Ind. 385 183 Cudd V. State, 28 Tex. App. 124 263 Cunningham v. State, 117 Ala. 59 108 Cunningham v. State, 80 Ga. 4 , . . . 33 Cunningham v. State, 5 W. Va. 508 261 Cupp V. Commonwealth, 35 Ky. Law Rep. 877 428 Curtis V. People, 1 111. 256 181 Curtley v. State, 42 Tex. Cr. R. 222, 227 2R D. Dacy V. State, 17 Ga. 439 311 Dalton V. State, 4 Tex. App. 333 395 Damon's Case, 6 Me. 128 429 Dancey v. State, 35 Tex. Cr. 615 152 Dansey v. State, 23 Fla. 316 264, 359- Daughtry v. State, 115 Ga. 819 17 Davidson v. State, 135 Ind. 254 301 Daviess Gravel-Road Co. v. Commonwealth, 14 Ky. Law Rep. 812 290 Davis V. Burke, 179 U. S. 399 7, 37, 52 Davis V. French, 20 Me. 21 435 Davis V. Pierae, 7 Minn. 13 48 Davis V. State, 68 Ala. 58 337 Davis V. State, 46 Ala. 80 93 Davis v. State, 38 Ala. 531 390 Davis V. State, 57 Ga. 67 413 Davis V. State, 100 Ind. 154 392 Davis V. State, 3 Har. & J. 154 437 Davis V. State, 19 Ohio St. 270 152 Davis V. State, 3 Cbldw. 77 406 Davis V. State (Tex.), 11 S. W. 647 356 Davis V. State, 6 Tex. App. 133 179 Davis V. United States, 16 App. (D. C.) 442 198 Dawson v. People, 25 N. Y. 399 133, 265 Dawson v. State, 33 Tex. 491 200 Dean v. Tennessee, Mart & Y. (Tenn.) 127 160 Dedien v. People, 22 N. Y. 178 420 Deitz V. State, 123 Ind. 85 446 Dela Ex parte, 25 Nev. 346 13, 48, 49 Denley v. State (Miss. ) , 12 So. 698 241 Denning v. State, 22 Ark. 131 77 Dennis v. State, 5 Ark. 230 426, 428 Denton v. State, 3 Tex. App. 635 138 Deon V. State, 3 Tex. App. 435 17 Dias V. State, 7 Blaokf. (Ind.) 20 258 Dill V. People, 19 Colo. 469 310 Dnl V. State, 35 Tex. Cr. 240 411 Dill V. State, 1 Tex. App. 278 395 Dillingham v. State, 5 Ohio St. 280 221 District of Columbia, Lanckton v. United States, 18 App. Cas. (D. C.) 348 227 Dixan v. State, 4 Greene (Iowa) , 381 441 xxxii Table of Cases. SECTION' Dockery v. State, 35 Tex. Cr. 487 126 Dodson V. State (Tex. Cr. App. 1902), 66 S. W. 1098 193 Dolan V. People, 64 N. Y. 485 77 Dolan V. People, 6 Hun (N. Y.), 493 263, 264 Dolan V. State, 122 Ind. 141 381 Dolph, In re, 17 Colo. 35, 37 26, 36, 51 Donahue v. State, 165 Ind. 148 152 Donnel v. United States, 1 Morr. (Iowa) 141 213 Donnelly v. State, 26 N. J. L. 464 403 Dord V. People, 9 Barb. 671 241, 250 Douglass V. State, 72 Ind. 385 18 Dowdy V. Commonwealth, 9 Gratt. 727 405, 419 Downing v. United States, 8 Ariz. 31 284 Dow's Case, 18 Pa. St. 37 92 Dowson V. People, 25 N. Y. 399 263 Doyal V. State, 70 Ga. 134 106 Doyle V. State, 77 Ga. 513 413 Doyle V. State, 17 Ohio, 225 74 Dralce v. State, 145 Ind. 210 223 Drake v. State, 25 Tex. App. 293 75, 83 Drake and Coehren's Case, 6 Gratt. (Va.) 665 140 Dreyer v. People, 176 111. 590 310, 311 Drummond v. Republic, 2 Tex. 156, 157 183, 374, 381 Dubois V. People, 200 111. 157 ; 285, 286 Du Boise v. State, 50 Ala. 139 270 Dukes V. State, 11 Ind. 557 168 Dunbar v. United States, 156 U. S. 185 271, 338, 348 Duncan v. State, 29 Fla. 439 297, 362 Dunlop V. United States, 165 U. S. 486, 497 285, 286, 287, 345 Dunn V. Noyes, 87 Wis. 340 94 Dunn V. State, 58 Neb. 807 301 Durbon, In re, 10 Mont. 147 52 Durham v. People, 5 111. 172 355 Durham v. State, 117 Ind. 477 15 Durland v. United States, 161 U. S. 306 271 Dutell V. State, 4 Greene (Iowa), 125 135, 439 Dutton T. State, 5 Ind. 533 106 Duvall V. State, 63 Ala. 12 276 E. Earl V. State, 33 Tex. Cr. 570 194, 196 Early v. Commonwealth, 86 Va. 921 417, 434 Eason v. State, 11 Ark. 481 11 Easterling v. State, 35 Miss. 210 446 Eastman v. Commonwealth, 4 Gray (Mass.), 416 264 Eaves v. State, 113 Ga. 749, 755 215, 219, 301 Eckhardt v. People, 83 N. Y. 462 374, 381 Edelhoff V. State, 5 Wyo. 19 371 Eddison v. State (Tex. Cr. App. 1903), 73 S. W. 396 224 Edmondson v. State, 41 Tex. 496 209 Edmundson v. State, 17 Ala. 179 221, 225 Edwards v. State (Miss.), 8 So. 464 326 Edwards v. State, 45 N. J. L. 419 32 Egan V. State, 53 Ind. 162 264 Eggart V. State, 40 Fla. 527 264 Eighmy v. People, 79 N. Y. 546 285, 286 Eldridge v. State, 27 Fla. 162 106 Elkin V. People, 24 How. Pr. (N. Y.) 272 329 Table of Cases. xxxiii SECTION Elkina v. State, 13 Ga. 435 390 Elliott V. Smith, 26 Ala. 78 423 Ellis V. Ellis, 11 Mass. 92 421 Emmonds v. State, 37 Ala. 12 363, 364 Emons v. State, 4 W. Va. 755 .' 430, 431 Endleman v. United States, 86 Fed. 456 418 Engleman v. State, 2 Ind. 91 183, 309, 402 English V. State, 31 Fla. 340, 345 11, 73 English V. State, 4 Tex. 125 149, 151 Enright v. People, 21 How. Prac. 383 372 Epperson v. State, 5 Lea (Tenn.), 291 83, 146 Eppes V. State, 10 Tex. 474 447 Epps V. State, 102 Ind. 539 171 Ervington v. People, 181 III. 408 333 Erwen v. State, 13 Mo. 306 309 Evans v. Commonwealth, 3 Mete. (Mass.) 453 370 Evans v. People, 12 Mich. 27, 33 273 Evans v. State, 62 Ala. 6 217 Evans v. State, 58 Ark. 47 202, 205 Evans V. State, 34 Tex. Cr. 110 206 Evans v. United States, 153 U. S. 584, 608 250, 326, 372, 376, 389 Everett v. State, 33 Fla. 661 428 F. Fahnestock v. State, 10 Ind. 156 392 Farhach v. State, 24 Ind. 77 278 Farley, Ex parte, 40 Fed. 66 68 Farmer v. State, Tex. Cr., 28 S. W. 197 351 Parrell v. State, 54 N. J. L. 416 392, 399, 420 Farris v. Commonwealth, 12 Ky. Law Rep. 592 420 Fasier v. State, 5 Mo. 536 396 Faustre v. Commonwealth, 13 Ky. Law Rep. 347 311 Eelker v. State, 54 Ark. 489 143, 326 Ferdinand Bergin, In re, 31 Wis. 383 37 Ferguson v. State, 134 Ala. 63 217 Ferguson v. State, 25 Tex. App. 451 ; 339 Ferris v. People, 35 N. Y. 125 76 Ferris v. State, 156 Ind. 224 259 Fields V. State, 121 Ala. 16 117 Finch V. State, 6 Blackf. (Ind.) 533 309 Fink V. City of Milwaukee, 17 Wis. 26 250 Finney v. State, 29 Tex. App. 184 263 Finnical v. Village of Cadiz, 61 Ohio St. 494 12 Fisher v. Commonwealth, 1 Bush (Ky.), 211 116 Fisher v. State, 2 Ind. App. 365 244 Fisher v. State, 40 N. J. L. 169 353, 361 Fisher v. State, 33 Tex. 792 392 Fitzgerald v. State, 4 Wis. 395 173 Fizell v. State, 25 Wis. 364, 365 169, 179, 180 Flanagan v. State, 19 Ala. 546 236 Fleener v. State, 58 Ark. 98 349 Fleming v. State, 136 Ind. 149 310 311 323 Flinn v. Commonwealth, 81 Ky. 186 33O Flint V. Commonwealth (Ky.), 23 S. W. 346 ."'.'. 38I Flohr V. Territory, 14 Okla. 477, 486 399, 401 Floyd V. State, 30 Ala. 511 ' I37 Flynn v. State (Tex. Cr. 1904), 83 S. W. 206 399 Fontaine v. State, 6 Baxt. (Tenn.) 514 116 xxxiv Table of Cases. SECnOH Ford V. State, 129 Ala. 16, 30 So. 27 356 Forrest v. State, 81 Tenn. 10.3 418 Foster v. State, 88 Ala. 182 116 Foster v. State, 71 Md. 553 348 Foster v. State, 31 Miss. 421 136 Foster v. State, 1 Wash. 411 359 Foute V. People, 15 Lea, 715 409 Fowler v. State, 100 Ala. 96 351 Fowler v. State, 3 Heisk. 154 418 Fox V. State, 76 Ind. 243 13 Francis v. State, 44 Tex. Cr. 246 204, 205 Francisso v. State, 1 Ind. 179 438 Franklin v. State, 52 Ala. 414 190 Franklin v. State, 108 Ind. 47 332, 381 Franklin v. State, 34 Tex. Cr. 203, 29 S. W. 1088 359 Fraser v. People, 54 Barb. (N. Y.) 306 381 Frasier v. State, 5 Mo. 536 394 Freeman v. State, 44 Tex. Cr. 496 202 French v. People, 3 Park. Cr. R. 114 88 French v. State, 12 Ind. 670 211 Frisbie v. United States, 157 U. S. 160 229, 440, 443 Frost V. State, 124 Ala. 71 18 Fry, In re, 3 Maekey, 135 17 Fulford V. State, 50 Ga. 591 267 Fuller V. State, 122 Ala. 32 99 Fuller V. State, 1 Black (Ind.), 63 435, 436 Fulmer v. Commonwealth, 97 Pa. St. 503 392, 416 Funderbank v. State, 75 Miss. 20 330 Furnace V. State (Ind. 1899), 54 N. E. 441 416 Furst V. State, 31 Neb. 403 403 G. Gabe v. State, 6 Ark. 519 326 Gady v. State, 83 Ala. 51 276, 350 Gage V. State, 67 Ark. 308 246, 247 Gaines v. State, 146 Ala. 16, 41 So. 865 293 Gallaber v. State, 17 Fla. 370 133 Gallagher v. People, 211 111. 158, 166 285, 371, 372, 377 Ganaway v. State, 22 Ala. 772 145, 147 Gannon, In re, 69 Cal. 547 93 Gannon v. State, 127 111. 507 106 Garden v. State (Ala.), 7 So. 801 348 Gardner, In re, 31 Misc. R. (N. Y.) 364 3 Gardner v. People, 20 111. 430 128 Gardner .. People, 4 HI. 83 97, 441, 445 Gardner v. State, 4 Ind. 632 213 Gardes v. United States, 87 Fed. 172 ^ 397 Garland v. C)tv of Denver, 11 Colo. 534 276 Garluke v. State, 13 Tex. 568 380 Garmire v. State, 104 Ind. 444 326 Garza v. State, 11 Tex. App. 410 17 Gater v. State, 141 Ala. 10 149, 155, 176 Gates V. State, 71 Miss. 874 335, 337, 362 Gatewood v. State, 4 Ohio, 386 335, 337 Gee Woo v. State, 36 Neb. 241 390 Geiger v. State. 5 Iowa, 484 218 George v. People, 167 111. 447 149, 158 Table of Cases. xxxv BBCTION ■Germolgez v. State, 99 Ala. 216 137, 442 Gerrish v. State, 53 Ala. 476 215, 355 Gcssner, Matter of, 53 Howard's Prac. (N. Y. ) 515 88 Gibson v. People, 5 Hun (N. Y. ) , 542 370 Giebel v. State, 28 Tex. App. 151 160, 329 Giles V. State, 88 Ala. 230 381 Giles V. State, 89 Ala. 50 374 Gill V. People, 3 Hun (N. Y.), 187 324 Gill V. State (Tex. Cr. App.), 20 S. W. 578 321 Gilmore v. State, 1 Humph. (Tenn.) 59 139 Glasgow V. State, 9 Baxt. (Tenn.) 485 131 Glass V. State, 45 Ark. 173 376, 389 Glover v. Commonwealth, 86 Va. 382 ■ 99 Glover v. State (Ga. 1906), 55 S. E. 592 371 Goddard v. State, 12 Conn. 448, 452 1, 5, 6 Goersen v. Commonwealth, 99 Pa. St. 388 285, 295 Goetz V. State, 41 Ind. 162 278 Goldman, Ex parte (Cal. App. 1906), 88 Pac. 819 241, 274, 335 Goldstein v. State, 82 N. Y. 231 427 Gooch V. State, 60 Ark. 5 351 Goodhue v. People, 94 111. 51 404 Goodloe V. State, 60 Ala. 93 164 Goodman v. State, 141 Ind. 35 405 Goodson V. State, 29 Fla. 511 128, 354 Goodson V. State, 32 Tex. 121 203 Goodwyn v. State, 4 Sm. & M. (Miss.) 520 138, 142 Gorden v. State, 18 Ind. 152 296 Gordon v. State, 102 Ga. 673 17 Gore V. People, 162 111. 259 143 Gorman v. Commonwealth, 124 Pa. St. 536 273, 359 Goslin V. Commonwealth, 28 Ky. Law Rep. 683 250, 252 Gould V. People, 89 111. 219 ... ! 13 Gourdain v. United States, 154 Fed. 453 403 Govitt V. State, 25 Tex. App. 419 390 Graham v. People, 181 111. 477 ■. 371 Graham v. State, 1 Ark. 171 298 Grandison v. State, 2 Humph. (Tenn.) 451 164, 170 Grant v. State, 55 Ala. 201 204, 205, 270 Grant v. State, 35 Fla. 581 348, 350, 351 Grantham v. State, 89 Ga. 121 259, 261 Grattann v. State, 71 Ala. 344 390 Gratz V. Commonwealth, 96 Ky. 162 311, 324 Graves v. State, 63 Ala. 134 353 Graves v. State, 45 N. J. L. 347 295 Green v. Indianapolis, 22 Ind. 192 276 Green v. State, 19 Ark. 178 128, 143 Green v. State, 119 Ga. 120 17 Green v. State, 28 Tex. App. 493 348 Greene, In re, 52 Fed. 104 374 Greenlow v. State, 4 Humph. 25 392 Greenwood v. Commonwealth, 11 Ky. Law Rep. 220 152 Greer v. State, 50 Ind. 267 332 Greeson v. State, 5 How. (Miss.) 33 183, 202 Gregory v. Commonwealth, 2 Dana (Ky.), 417 353, 437 Griffin v. State, 14 Ohio, 54 344 Griffith V. State, 90 Ala. 583 206 Grimes v. State, 105 Ala. 86 404, 406 Grin v. Shine, 187 U. S. 181, 182 10 xxxvi Table of Cases. SECnOK Grosbois, In Matter of, 109 Cal. 445 1 Gross V. Commonwealth, 26 Ky. Law Rep. 870 141 Groves v. State, 73 Ga. 205 4, 59 Guest V. State, 19 Ark. 405 240, 274, 292 Gunkle v. State, 6 Baxt. (Tenn.) 625 439 Gustavenson v. State, 10 Wyo. 300 314 Guston V. People, 61 Barb. 35 298 Guy V. State, 1 Kan. 448, 452 20, 61 Guynes v. State, 25 Tex. App. 584 312 H. Haas V. State, 50 Neb. 150 398 Haase v. State, 8 Ind. App. 488 301 Haase v. State, 53 N. J. L. 34 251, 301 Hagerman v. State, 54 N. J. L. 104 348 Haines v. State, 7 Tex. App. 30 18 Hale V. State, 58 Ohio St. 676 278 Haley v. State, 63 Ala. 89 217, 232 Hall V. Commonwealth, 15 Ky. Law Eep. 856 333 HaU V. People, 90 N. Y. 498 274 Hall V. State, 134 Ala. 90 68, 74 Hall V. State, 3 Ga. 18 309, 389 Hall V. State, 40 Neb. 320 264 Hall V. State, 28 Tex. App. 146 332 Hall V. State, 32 Tex. Cr. 594 357 Hallinger v. Davis, 146 U. S. 314, 322 26 Hall's Case, 3 Gratt. ( Va.) 593 443 Halsey v. State, 4 N. J. L. 324 296 Hamilton v. Commonwealth, 3 Pa. 142 374 Hamilton v. State, 62 Ark. 543 97 Hamilton v. State, 103 Ind. 96 449 HamUton v. State (Tex. Cr.), 24 S. W. 32 350 Hammond v. State, 121 Ind. 512 348, 350 Hammond v. State, 14 Md. 135 229 Hammons v. State, 29 Tex. App. 445 264 Hampton v. State, 8 Ind. 336 309, 313, 314 Hampton v. State, 7 Humph. 69 465 Hampton v. United States, Morris, 489 151 Hanck v. State, 1 Tex. App. 357 160 Hard v. Stone, 5 Cranch C. C. 503 202 Hardin v. State, 106 Ga. 384, 387 429, 430 Hardin v. State, 25 Tex. App. 74 339 Hardy v. United States, 186 U. S. 224, 225 311 Harlan v. People, 1 Doug. (Mich.) 207 429 Harne v. State, 39 Md. 552 250 Hames v. State, 5 Yerg. (Tenn.) 186 301 Harriman v. State, 2 G. Greene (Iowa) , 270 439 Harrington v. State, 36 Ala. 236 90, 180 Harrington v. State, 54 Miss. 490, 494 326, 330, 372 Harris v. People, 21 Colo. 95 232, 235 Harris v. State (Ga. 1907), 57 S. E. 937 .' 409 Harris v. State, 3 Lea (Tenn.) , 324 384 Harrison v. State, 55 Ala. 239 160 Harrison v. State, 7 Ind. 422 296 Harrison v. State, 42 Tenn. 232 371 Harrold, Ex parte, 47 Cal. 130 241 Hartmann v. Commonwealth, 5 Pa. St. 60 250 Table of Cases, xxxvil SECTION Hartshorn v. State, 29 Ohio St. 635 428 Hash V. Commonwealth, 88 Va. 172 226, 423 Haskins v. State, 47 Ark. 243 13 Haskins v. People, 16 N. Y. 344, 348 270, 299 Hatfield v. Commonwealth, 21 Ky. Law Rep. 1461 428 Hatfield v. State, 9 Ind. App. 296, 36 N. B. 664 264, 421 Hathaway v. State, 32 Fla. 56 442 Hawker v. People, 75 N. Y. 487, 489 402, 409 Hawkins v. State, 54 Ga. 653, 657, 658 1, 2, 59 Hawkins v. State, 60 Neb. 380 37 Haworth v. State, Peck (Tenn.), 89 357 Heacock v. State, 42 Ind. 393 447 Heanley v. State, 74 Ind. 99 13 Heath v. State, 91 Ga. 126 400 Heath v. State, 101 Ind. 512 129, 171, 200 Heikes v. Commonwealth, 26 Pa. St. 513 306 Helm V. State, 67 Miss. 562 145 Henderson v. State, 105 Ala. 82 266 Henderson v. State, 113 Ga. 1148 259, 260 Hennessy v. Commonwealth, 10 Ky. Law Rep. 823 351 Henry v. State, 33 Ala. 389 396, 409, 410 Henry v. State, 4 Humph. 270. 128 Heough V. McNitt, 7 Minn. 30 48 Herman v. People, 131 111. 594, 602 402, 404, 413 Herron v. State, 93 Ga. 534, 19 S. E. 243 357 Herron v. State, 17 Ind. App. 161, 164 392, 422 Hess V. State, 5 Ohio, 5 334, 344, 423 Hester v. State, 103 Ala. 83 338 Hewitt V. State, 121 Ind. 245 390 Hewitt V. State, 25 Tex. 722 1, 12, 46, 47, 54 Hewlett V. State, 135 Ala. 59 215 Hichs V. State, 123 Ala. 15 143 Hicken v. State, 76 Ga. 759 241 Hickman v. State, 44 Tex. Cr. 533 256, 316 Higgins V. State, 41 Ala. 393 338 Higgins V. State (Tex. App.), 19 S. W. 503 351 Hilderbrand v. State, 5 Mo. 548 413 Hill V. State, 41 Tex. 253 267 Hill V. State, 42 Neb. 503 403 Hines v. State, 26 Ga. 614 371 Hite V. State, 9 Yerg. (Tenn.) 357 128, 298, 308 Hizer v. State, 12 Ind. 330 309 Hodgkins v. State, 36 Neb. 160 381 Hodgman v. People, 4 Den. (N. Y. ) 235 387 Hodgson V. Vermont, 168 U. S. 262, 272 26, 36, 37 Hodnett v. State, 66 Miss. 26 320 Hogan V. State (Fla. 1905), 39 So. 464 241 413 Hogg V. State, 3 Blackf. (Ind.) 326 .'364 Hogue V. State, 34 Miss. 616 127 Hoiles V. United States, 3 MacA. (D. C. ) 370 416 Holcomb V. State, 31 Ark. 427 128 Holden v. Hardy, 169 U. S. 366, 384 26 Holland v. State, 131 Ind. 568, 31 N. E.'359 333 Hollins V. State (Tex. Cr. App. 1902) , 69 S. W. 594 203 Holly V. State, 75 Ala. 14 447 Holman v. State, 79 Ga. 155 ; 95 Holman v. State, 90 S. W. 174 (Tex. Cr. App.) .',.'. 400 xxxviii Table of Cases. SECnOK Holt V. State, 47 Ark. 196 183 Holton V. State, 28 Fla. 303 371 Hopkins v. Commonwealth, 50 Pa. St. 9 131 Horan v. State, 24 Tex. 161 244, 246, 252 Home V. State, 37 Ga. 80 184 Hornsby v. State, 94 Ala. 55 259 Horton v. State, 53 Ala. 488 259 Houser v. People, 46 Barb. (N. Y.) 33 298 Howard v. State, 87 Ind. 68 381 Howard v. State, 67 Ind. 401 151, 167 Howell V. Commonwealth, 5 Gratt. ( Va.) 664 374 Howell V. State, 4 Ind. App. 148 169 Howell V. State (Tex. App.), 16 S. W. 533 298 Hoyt V. People, 140 111. 588, 30 N. E. 315 411 Hubbard v. State, 7 Ind. 160 310 Hubbard v. State, 62 N. J. L. 628 236 Hudson V. State, 1 Blackf. (Ind.) 317 396, 436 Hudson V. State, 10 Tex. App. 215 206 Hudspeth v. State, 50 Ark. 534 106, 107 Huffman v. Commonwealth, 6 Kand. ( Va.) 685 182 Hughes V. State, 35 Ala. 351 61 Hughes V. State (Tex. Cr. App. 1900), 60 S. W. 562 270, 402 Hughes Case, 4 City Hall Rec. 132 436 Huling V. State, 17 Ohio St. 583 68 Hull V. State, 120 Ind. 153 264 Humason, In re, 46 Fed. 388 37 Hume V. United States, 118 Fed. 689, 696 311 Hiunphreys v. State, 17 Fla. 386 374 Hunt V. State, 9 Tex. App. 404 245, 24S Hunter v. State, 29 Ind. 80 296 Hunter v. State, 40 N. J. L. 495, 523 396, 397 Hunter v. State, 30 Tex. App. 314 332 Huntsman v. State, 12 Tex. App. 619, 636 161 Hurtado v. California, 110 U. S. 516 26, 36 Hutchins v. State, 28 Ind. 34 359 Hutto v. State, 7 Tex. App. 44 193, 206 I. Iowa V. Olinger, 109 Iowa, 669 278 Irving V. State, 8 Tex. App. 46 395 Irwin V. State, 117 Ga. 706 10« Irwin V. State, 7 Tex. App. 109 193 Ivey V. State, 23 Ga. 576, 580 3, 4 J. Jackson v. Butler, 8 Minn. 117 48 Jackson v. Commonwealth, 100 Ky. 239 423 Jackson v. Commonwealth, 23 Gratt. ( Va.) 919 89 Jackson v. State, 74 Ala. 26 132 Jackson v. State, 88 Ga. 784 203 Jackson v. State, 48 Ind. 251 13 Jackson v. State, 21 Ind. 79 128 Jackson v. State, 14 Ind. 327 115 Jackson v. State, 25 Tex. App. 314 76, 83, 332 Jackson v. State, 34 Tex. Cr. App. 38 293 Jackson v. State, 91 Wis. 253 394^ 40< Table of Cases. xjLjax SEcnorr Jackson v. United States, 102 Fed. 473 161, 429 Jackson v. Wood, 2 Cow. 818 35, 37 Jacob V. Commonwealth, 5 Serg. & R. (Pa.) 315 309, 324 Jacobs V. State, 42 Tex. Cr. 353 210, 320 James v. State, 104 Ala. 20 413 James v. State, 44 Tex. 314 176 James v. State (Tex. Cr. 1907), 105 S. W. 179 445 Jane v. Commonwealth, 3 Mete. (Ky.) 18 37, 333 Jane v. State, 3 Mo. 61 256, 302 Jefferson, Ex parte, 62 Miss. 223 99 Jefferson v. People, 101 N. Y. 19, 22 276 Jeffries v. Commonwealth, 12 Allen (Mass.) , 145 169, 301 Jeffries v. State, 39 Ala. 655 229 Jenkins v. State, 97 Ala. 66 241 Jenkins v. State, 30 Miss. 408 128 Jenkins v. State, 36 Tex. 638 278 Jennings v. Commonwealth, 13 Ky. Law Rep. 79 Ill Jennings v. State, 7 Tex. App. 350 380 .Jeremy Imp. Co. v. Commonwealth (Va. 1907), 56 S. E. 224 129 Jerry v. State, 1 Blackf. (Ind.) 395 170, 332 Jester v. State, 26 Tex. App. 369 209 Jillard v. Commonwealth, 26 Pa. St. 169 422 Job, Ex parte, 17 Nev. 184 99, 120, 122 Joel V. State, 28 Tex. 642 319, 321, 323 Johnson, Ex parte, 71 Ark. 47 121 Johnson v. Commonwealth, 94 Ky. 341, 22 S. W. 335 381 Johnson v. Commonwealth, 12 Ky. Law Rep. 835 161 Johnson v. Commonwealth, 12 Ky. Law Rep. 442 406 Johnson v. People, 113 111. 99 372, 374 Johnson v. People, 44 111. App. 642 391, 396 Johnson v. People, 65 Barb. 42 366 Johnson v. State, 29 Ala. 62, 65 394, 390 Johnson v. State, 100 Ala. 55 351 Johnson v. State, 36 Ark. 242 239 Johnson v. State, 90 Ga. 441 250 Johnson v. State, 61 Ga. 212 405 Johnson v. State, 65 Ind. 204 363 Johnson v. State, 34 Neb. 257 442 Johnson v. State, 29 N. J. L. 453 165 Jolmson V. State, 26 Tex. 117 335 Johnson v. State (Tex. Cr.), 21 S. W. 929 ; 298 Johnson v. United States, 3 McLean, 89 311 Johnson v. Waite, 28 Tex. App. 562 377 Jones V. Commonwealth, 1 Bush. (Ky.) 34 319, 323 Jones V. Commonwealth, 114 Ky. 599 141 Jones V. Commonwealth, 3 Mete. 18 241 Jones V. Commonwealth, 86 Va. 661 88 Jones V. Commonwealth, 86 Va. 950 ; 298 Jones V. People, 101 App. Div. (N. Y. ) 55, 57 1,2, 3 Jones V. Robbins, 8 Gray (Mass.), 329, 343 25, 27, 29 Jones V. State, 136 Ala. 118 285 Jones V. State, 63 Ala. 27 218 Jones V. State, 58 Ark. 390 329 Jones V. State (Ga. 1907), 58 S. E. 558 '.'..'.'.'. 396 Jones V. State, 115 Ga. 814 jOg Jones V. State, 99 Ga. 46 210 211 Jones V. State, 74 Ind. 249 ' 13 Jones V. State, 18 Ind. 179 296 xl Table of Cases. SECnOIT Jones V. State, 11 Ind. 354, 357 215, 21!) Jones V. State, 67 Miss. HI 398 Jones V. State, 25 Tex. App. 621 206 Jones V. State, 21 Tex. App. 349 208 Jones V. Territory, 4 Okla. 45 179 Jones V. United States, 5 Cranch. C. C. 647 241 Jordan v. People, 19 Colo. 417 51 Jordan v. State, 60 Ga. 656 214 Jordan v. State, 22 Ga. 545 278, 300 Joslyn V. State, 128 Ind. 160, 27 N. E. 492 392, 416 Journey v. State, 1 Mo. 428 14 Joyner v. State, 78 Ala. 448 447 Juaraqui v. State, 28 Tex. 625 246 Jules V. State, 85 Md. 305 285, 287 Junction City v. Webb, 44 Kan. 71 359 Justice V. State, 17 Ind. 56 296 K. Kaelin v. Commonwealth, 84 Ky. 354 333 Kallock V. Superior Court, 56 Cal. 229 36 Kane v. People, 8 Wend. (N. Y.) 203, 212 396, 397, 398, 402, 438 Kannon v. State, 10 Lea. 386 418 Kansas v. Hugh O'Neill, 51 Kan. 651 401 Kealin v. Commonwealth, 84 Ky. 354 333 Kearney v. State, 48 Md. 16 371, 374 Keator v. People, 32 Mich. 484 310 Keefer v. State, 4 Ind. 246 405 Keith V. Territory, 8 Okla. 30 169 Keitler v. State, 4 G. Greene (Iowa), 291, 292 62, 79 Keitler v. State, 10 Sm. & M. (Miss.) 192 447 Keizewetter v. State, 34 Tex. Cr. 513, 31 S. W. 395 390 Keller v. State, 51 Ind. Ill, 115 250 Keller v. State, 11 Md. 525 14 Keller v. State, 25 Tex. App. 325 204, 205 Kelley v. State, 34 Tex. Cr. 412 348 Kelly V. People, 17 Colo. 130 409, 410 Kelly V. People, 132 111. 363 128 Kelly V. People, 39 111. 157 128 Kelly V. State, 3 Sm. & M. (Miss.) 518, 525 194 Kilgore v. State, 73 Ark. 280 156, 157, 164 Kennedy v. People, 39 N. Y. 245 198, 217, 327 Kennedy v. State, 31 Fla. 428 351, 419 Kennedy v. State, 62 Ind. 136 223 Kennedy v. State, 22 Tex. Cr. 693 323 Kennedy v. State, 11 Tex. App. 73 142 Kennegar v. State, 120 Ind. 176, 21 N. E. 917 13, 405 Kenney v. State, 5 R. I. 385 310, 418 Kerry v. State, 17 Tex. App. 178 372 Kersh v. State, 24 Ga. 191 243 Ketchingman v. State, 6 Wis. 426 392 Kimbrough v. State, 28 Tex. App. 367 351 Kineaid v. People, 139 111. 213 074 King V. Baxter, 5 Term. R. 83 2/7 King V. Chedwick, 1 Keble, 585 427 King V. Barley, 4 East. 174 176 King V. Dixon, 10 Mod. 335 427 King V. Fearnley, 1 Term. R. 316 160 Table of Cases. xli SECTION King V. Ford, Yelv. 99 440 King V. Goldstein, 7 Eng. Com. Law, 685 339 King V. Morgan, 1 Raymond^ 710 172 King V. Morris, 2 Leach (4th ed.), 1096 427 King V. Morris, 2 Stra. 901 172 King V. Roysted, 1 Keny. 255 160 King V. State, 42 Fla. 260 376 King V. State, 17 Fla. 183 17, 30 King V. State, 2 Ind. 523 438 King V. State, 6 How. (Miss.) 730 139 King V. State, 3 Heisk. (Tenn.) 148 323 King V. State, 27 Tex. App. 567 241 King V. Stevens, 5 East. 244, 259, 260 190, 193, 241, 251, 256 King V. Swain & Jeffreys, Foster's Crown Law, 104, 105, 106 106 King & Turveth, 1 Mod. 26 172 King V. Wright, 1 Adol. & El. 434 188 Kinney v. State, 45 Tex. Cr. 500 366 Kinney v. State (Tex. Cr. 1905), 84 S. W. 590 366 Kinningham v. State, 119 Ind. 332 241 Knopf V. State, 84 Ind. 316 392 Kirk V. State, 6 Mo. 469 149, 161, 165 Kirkham v. People, 170 111. 9, 12 133, 143, 431 Kiser v. State, 89 Ga. 421, 15 S. E. 495 374 Kit V. State, 11 Humph. (Tenn.) 167 246, 374 Kitchens v. State, 80 Ga. 810 273, 371 Kitrol V. State, 9 Fla. 9 81, 83 Klein v. People, 31 N. Y. 229 425 Kliffield V. State, 5 Miss. 304 372 Knoles v. State, 3 Day, 103 437 Knoxville Nursery Co. v. Commonwealth, 108 Ky. 6 290 Kotter V. People, 150 111. 441 402 Kring v. Missouri, 107 U. S. 221 43 Kutch V. State, 32 Tex. Cr. 184 298 La Beau v. People, 33 How. Prac. (N. Y.) 66 264, 392, 412 Lacefield v. State, 34 Ark. 275 239 Lamar v. State, 30 Tex. App. 693 374 Lambert v. People, 9 Cow. 578, 609 1, 241 Lamberton v. State, 11 Ohio, 282 372 Lambertson v. People, 5 Park. Cr. R. (N. Y.) 201 240 Lampkin v. State, 87 Ga. 516 392, 409, 410 Lanekton v. United States, 18 App. Cas. (D. C.) 348, 365 229 Landringham v. State, 49 Ind. 186 238 Lane, Ex parte, 135 U. S. 443 447 Lane v. Brown, 16 Wend. (N. Y.) 561 14, 16 Lanergan v. People, 6 Park. Cr. R. (N. Y.) 209 402 Lang V. State, 42 Fla. 595 270, 271 Langdon v. People, 133 111. 382, 24 N. E. 874 357 Lanier v. State, 76 Ga. 304 348 La Pointe v. United States, 23 Wash. L. Rep. 482 351 Larison v. State, 49 N. J. L. 256 262 Laroe v. State, 30 -Tex. App. 375 415 Laseelles v. State, 90 Ga. 347 108, 394 Lasure v. State, 19 Ohio St. 43, 50 1, 236 Laurent v. State, 1 Kan. 313 130, 439 La Vaul v. State, 40 Ala. 44 381 xlii Table of Oases. SEcnoir Lawless v. State, 4 Lea (Tenn.), 173 ll* Lawson v. State, 20 Ala. 65 186 Lazier v. Commonwealth, 10 Gratt. (Va.) 708, 712 194, 309, 395 Ledbetter v. United States, 170 U. S. 606, 609 298, 306, 310, 311, 376 Lee V. State, 69 Ga. 705 '. 85 r^efler v. State, 122 Ind. 206 204 Leftwich v. Commonwealth, 20 Gratt. ( Va.) 716 292 Lehman v. United States, 127 Fed. 41 256 Leisenberg v. State. 60 Neb. 628 99, 371 Lemon v. State, 19 Ark. 171 371 Lenhart v. State, 33 Tex. Cr. 504 351 Leonard v. State, 115 Ala. 80 270 Leonardo v. Territory, 1 N. M. 291 . . . . ; 169 Leslie v. State, 35 Fla. 184 297 Leslie v. State (Tex. Cr. App. 1898 ) , 47 S. W. 367 217 Lester, In re, 77 Ga. 143, 147 87 Levey v. Wilson, 69 Cal. 106 68 Levy V. State, 6 Ind. 281 15, 218 Lewellen v. State, 18 Tex. 538 423 Lewis V. Board of Commissioners of Wake, 74 N. C. 194, 197 2, 87 Lewis V. State, 16 Conn. 32 312 Lewis V. State, 113 Ind. 59 267 Lewis V. State, 1 Head ( Tenn. ) 329 219 Lewis V. State, 42 Tex. Cr. 278 68 Lewis V. State, 28 Tex. App. 140 348 Lindsey v. State, 48 Ala. 169 426 Lindville v. State, 3 Ind. 580 5 Lisk V. State, 28 Tex. App. 432 241 Littell V. State, 133 Ind. 577 267, 295 Little V. State, 60 Neb. 749 398 Little V. State (Tex. App.), 19 S. W. 332 325 Livingston v. The Mayor of New York, 8 Wend. 100 35 Loekard v. Commonwealth. 85 Ky. 201 241 Loehr v. People, 132 111. 504 263 Loftus V. State, 52 N. J. L. 223 241 Loftus V. State (N. J. L.), 19 Atl. 183 241 Lohman v. People, IN. Y. 379 263 Lohman v. Restell, 1 N. Y. 379 334 Lohman v. People, 2 Barb. (N. Y.) 216 422 Long V. State, 12 Ga. 293 409, 410 Long V. State, 56 Ind. 133 143 Long V. State, 46 Ind. 5S2 93 Long V. State, 36 Tex. 6 366 Longdate v. People, 100 III. 203 344 Longham v. State, 26 Tex. App. 533 351 Longley v. State, 42 Texas, 490 371 Loomis V. People, 19 Hun (N. Y.), 601 154 Lorton v. State, 7 Mo. 55 416 Lott V. State, 18 Tex. App. 627 74 Lougee v. State, 11 Ohio, 68, 71 1, 45, 48 Louis V. Commonwealth, 16 Ky. Law Rep. 284 235 Louisville & Jefferson Ferry Co. v. Commonwealth, 104 Ky. 726 407 Louisville & N. R. R. Co. v. Com., 112 Ky. 535, 642 10 Lowe v. State, 134 Ala. 156 394 Lowe V. State, 57 Ga. 171 416 Lowry v. Com., 18 Ky. Law Rep. 481 17 Loyd V. State, 45 Ga. 57, 71 428 Lucas V. State, 27 Tex. App. 322 310, 323. Table of Cases, xliii SECTION Ludden v. State, 31 Neb. 429 245 Lusk V. State, 64 Miss. 845 156, 164 Lybarger v. State, 2 Wash. 552 37, 44 Lyons v. People, 68 111. 271 402 M. Mack V. People, 82 N. Y. 235, 236 1, 299 Maekin v. United States, 117 U. S. 348 28, 29 Madden v. State, 1 Kan. 340 198 Maddox v. State, 28 Tex. App. 533 241 Mahan v. State, 10 Ohio, 232 137, 174 Magahagin v. State, 17 Fla. 665 392 Maler, Ex parte, 103 Gal. 479 241 Malcolmson v. State, 25 Tex. App. 267 349 Malone v. State, 14 lYid. 219 151, 372 Mann v. State, 47 Ohio St. 556 329 Mansfield, In re, 106 Cal. 400 383 Markle v. State, 3 Ind. 535 241 Markley v. State, 10 Mo. 291 319 Marquardt v. State, 52 Ark. 269 310 Martin v. Chrystal, 4 La. Ann. 344 13 Martin v. State, 29 Ala. 30 241 Martin v. State, 30 Neb. 507, 46 N. W. 621 398, 439 Martin v. State, 40 Tex. 19 202, 205 Martin v. State, 22 Tex. 214 81, 83 Martinez v. State (Tex. Cr. 1907), 103 S. W. 930 404 Marwin v. People, 26 Mich. 298 350 Mary v. State, 5 Mo. 79 97 Maryland v. Negro Jesse Evans, 7 Gill & John's (Md.), 292 435 Mask V. State, 32 Miss. 405 425 Mason v. People, 2 Colo. 373 106 Mason v. State, 55 Ark. 529 272, 273 Mason v. State, 29 Tex. App. 24 406 Massie v. State, 5 Tex. App. 81 288, 292 Mathews v. State, 24 Ark. 484 390 Mathews v. State, 10 Tex. App. 279 395 Mathis V. State, 45 Fla. 46, 60 285, 286 Mathis V. State, 94 Ind. 562 129 Matthews v. Com., 18 Gratt. ( Va. ) 989 7 Matthews v. State, 44 Tex. 376 160 Matthews v. United States, 161 U. S. 500 310 Mau-Zau-mau-ne-kah v. United States, 1 Pin. 124 160 Maxwell v. Dow, 176 U. S. 581 26 Maxwell v. State, 68 Miss. 339 329 May V. State, 85 Ala. 14 372 May V. State, 14 Ohio, 461 I97 Mayer v. State, 64 N. J. L. 323 383, 385, 390 Mayo V. State, 30 Ala. 32 396, 397 Mayo V. State, 7 Tex. App. 342 223 Mays V. State, 89 Ala. 37 259 Mays V. State, 28 Tex. App. 484 351 McAllister v. State (Ga. 1907), 58 S. E. 1110 445 McBirde v. State, 10 Humph. (Tenn.) 615 298 McCallaugh v. State, 132 Ind. 428 405 MeCann v. United States, 2 Wyo. 267 256 McCarney v. People, 83 N. Y. 408 363 McCarthy, Ex parte, 53 Cal. 413 IJ xliv Table of Cases. sEcnoif McCarthy v. State, 1 Wash. 377 40, 44 MeCarty v. State, 37 Miss. 411 310 McCarty v. United States, 101 Fed. 113 t 328 McClintic, 73 Iowa, 603 311 McClure v. State, 1 Yerg. (Tenn.) 206 149, 172 McClusky, Ex parte, 40 Fed. 71, 74 30, 31 MeConnell v. State, 67 Ga. 633 33 McCowan v. State, 58 Ark. 17 3-51 McCoym v. State, 22 Neb. 418 296 McCue V. State (Tex. Cr. App. 1907), 103 S. W. 883 217 McCuUough T. Commonwealth, Hard. 95 435 McCulIough V. Commonwealth, 67 Pa. St. 30 87 MeCullough V. State, 132 Ind. 427 404, 405 McDade v. State, 20 Ala. 81, 82 311 McDaniel v. State (Ala. 1905), 39 So. 919 128 McDonald v. People, 126 lU. 150 28 McDuffie V. State, 87 Ga. 687 374 McElroy v. State, 13 Ark. 708 300 McFarland v. Butler, 8 Minn. 116 48 McGehee v. State, 26 Ala. 154 319, 320 McGregor v. State, 16 Ind. 9 396, 397 McGuffie V. State, 17 Ga. 498 445 McGuire v. State, 37 Ala. 161 323, 433 McGuire v. State, 76 Miss. 504 146, 147 McGuire v. State, 35 Miss. 366 235 McKee v. State, 82 Ala. 32 129 McKenzie v. State, 24 Ark. 636 128, 129 McKenzie v. State, 32 Tex. 575 397 McKinney v. State, 25 Wis. 378 420 McKinnie v. State, 44 Fla. 143 298 McKinnie v. Strickland, 44 Fla. 143 297 McNair v. People, 89 111. 441 339, 345, 347 McNeese v. State, 19 Tex. App. 48 68 74 MeXiel v. United States, 150 Fed. 82 .'336 McXulty V. California, 149 U. S. 649 26, 37 McWharter v. State, 118 Ga. 55 '366 Mead v. State, 53 N. J. L. 601 277 Meadows v. State, 121 Ga. 362 446 Medley v. Petitioner, 134 U. S. 160, 169 ' 29 Medlock v. State, 18 Ark. 363 \ 3II Meehan v. State, 119 Wis. 621 343 Melton V. State, 3 Humph. (Tenn.) 389, 394 I79 Menasco v. State (Tex.), 11 S. W. 898 209 Mercer v. State, 40 Fla. 216 103_ 126 Mergentheim v. State, 107 Ind. 567 ' 127 Merrick v. State, 63 Ind. 327, 330 .396, 403 ilerrill v. State, 45 Miss. 651 ' 234 Merwin v. People, 26 Mich. 298 270 348 350 Metzker v. People, 14 lU. 101 ,\\ ' '390 Micheal v. State, 40 Fla. 26.5 438 Mill V. State, 29 Neb. 437 37 51 Millar v. State, 2 Kan. 174 .' 145 Miller v. Commonwealth, 13 Bush. (Ky.) 731 279 Miller v. Commonwealth ( Va. ) , 21 S. E. 499 440 Miller v. People, 1.3 Colo. 166 35I Miller v. People, 52 N. Y. 304 ,[ 344 Miller v. People, 5 Barb. (N. Y.) 203 326 Miller v. State, 4.5 Ala. 24 4I7 Table of Cases. xlv SECTION Miller v. State, 40 Ark. 488 130, 146 Miller v. State, 144 Ind. 401 12, 13 Miller v. State, 107 Ind. 152 189 Miller v. State, 79 Ind. 198 238 Miller v. State, 69 Ind. 284 95 Miller v. State, 68 Miss. 221 365 Miller v. State, 53 Miss. 403 365 Miller v. State, 33 Miss. 356 68, 310 Miller v. State (Neb. 1907) , 111 N. W. 637 404 Miller v. State, 36 Tex. Cr. 47 449 Miller v. United States, 133 Fed. 337 242, 271, 376 Mills, In re, 135 U. S. 263, 267 29 Mills V. State, 52 Ind. 187 304 Mills V. State, 4 Blackf. (Ind.) 457 205 Mischer v. State, 41 Tex. Cr. 212 299, 308 Missouri v. Ames, 10 Mo. 743 399 Missouri v. Cook, 1 Mo. 547 '. 296 Missouri v. Logan, 1 Mo. 532 348 Mitchell V. Commonwealth, 10 Ky. Law Eep. 910 371 Mitchell V. Commonwealth, 93 Va. 775 398 Mitchell V. State, 8 Yerg. (Tenn.) 514 149, 151 Molett V. State, 33 Ala. 408 323 Moline v. State, 72 Neb. 361 420 Moline v. State, 67 Neb. 164 237, 241, 246, 251 Monroe v. Berry, 29 Ky. Law Rep. 602 106 Monroe v. Hardy, 46 La. Ann. 1232 18 Moody V. State, 7 Blackf. (Ind.) 424 298 Moore v. State, 46 Tex. Cr. 520 • 143 Moose V. State, 49 Ark. 499 371, 377 Morgan v. State, 19 Ala. 558 152, 186, 231 Morgan v. State (Tex. App.), 18 S. W. 647 324 Morgan v. State (Tex. Cr. App. 1903), 73 S. W. 968 218 Morgan v. Territory, 16 Okla. 530 354 Morgan v. United States, 148 Fed. 189 392 Morris v. State (Miss. ), 8 So. 295 353 Morris v. State (Tex. Cr.), 20 S. W. 979 350 Morrissey v. People, 11 Mich. 329 299 Morrison v. Witham, 10 Me. 421 438 Morrow v. State, 10 Humph. (Tenn.) 120 330, 331 Morse v. Richmond, 42 Vt. 539 416 Mosby V. State (Ala.), 13 So. 148 390 Mose V. State, 35 Ala. 421 1, 128, 129, 439 Mott V. State, 29 Ark. 147, 149 11, 45, 46, 48, 326 Mount V. State, 14 Ohio, 295 147 Mulligan v. State, 25 Tex. App. 199 353 Mullins V. Commonwealth, 11 Ky. Law Eep. 345 351 Munkers v. State, 87 Ala. 94, 96 225 Murphy v. People, 104 111. 528 396 Murphy v. People, 2 Cow. 815 37 Murphy v. State, 86 Ala. 46 72 Murphy v. State, 43 Neb. 34 371 Murray v. Reg., 7 Q. B. 706 278 Musgrave v. State, 133 Ind. 297 263, 339 Musick V. People, 40 111. 268 85 Musquez v. State, 41 Tex. 226 223 Myatt V. State, 31 Tex. Cr. 523 210, 236 Myers v. State, 121 Ind. 15 310 Myers v. State, 4 Ohio C. C. 570 392, 419 xlvi Table of Cases. N. SEcnow Nash V. State, 73 Ark. 399 106, 135 Nebit V. People, 19 Colo. 441 51 Neimann v. State (Tex. Cr. App. 1903), 74 S. W. 658 233 Nelson v. People, 5 Park. Cr. R. 39 402 Nevill V. State, 138 Ala. 99 416 Newcomb v. State, 37 Miss. 383 32, 237, 284, 297 Newcome v. State, 27 Ind. 10 296 Newman v. Commonwealth, 28 Ky. Law Rep. 81 203 Newman v. State, 101 Ga. 534 447, 448 Newman v. State, 69 Miss. 303, 10 So. 580 374 Newman v. State, 41 Wis. 393 40i New Orleans v. Chappuis, 105 La. 179 285 Newton v. State (Fla. 1906), 41 So. 19 293 Nicholas v. State, 35 Wis. 308 434 Nichols V. Commonwealth, 78 Ky. 180 41(1 Nichols V. State, 127 Ind. 406 306, 381 Nichols V. State, 46 Miss. 284 377, 380 Nichols V. State, 5 N. J. L. 539 68, 7<> Nichols V. State, 35 Wis. 308 434 NichoUs V. People, 40 III. 395 29i> Nightengale v. State, 94 Ga. 395 34S Nivon V. State, 121 Ga. 144 16.-. Nixon V. State, 68 Ala. 535 68, 78 N. N. & M. V. Co. V. Commonwealth, 14 Ky. Law Rep. 196, 197 316, 317 Noakes v. People, 25 N. Y. 380 361 Noblin V. State, 100 Ala. 13 217 Noe V. People, 39 111. 96 318 Nolan's Case, 122 Mass. 330 4.S Noles V. State, 24 Ala. 672 35, 45, 175, 237, 243 Nomaque v. People, 1 111. 145 439, 440, 44-5 Nordlinger v. State, 24 App. D. C. 406 109 Norman v. State, 24 Miss. 54 32i; Norris v. State, 33 Miss. 373 250 Norris' House v. State, 3 G. Greene (Iowa), 513, 519 1, 68, 74, 352 Norton v. State, 72 Miss. 128 273 Nowells V. Commonwealth, 84 Ky. 52 415 Nunn V. State, 1 Ga. 243, 245 2 O'Brien v. People, 48 Barb. 274 356 O'Brien v. State, 27 Tex. App. 448 326 O'Bryan v. State, 27 Tex. App. 339 197 O'Donnell v. People, 110 111. App. 250 377 Ogle V. State, 43 Texas Crim. 219 74 Oglesby v. State, 121 Ga. 602 5il Ohio V. Hennessey, 23 Ohio, 347 416 Olendorf v. State, 64 Ohio St. 118 434 Oliver v. Commonwealth, 95 Ky. 372 44I 44,5 Oliver v. State, 5 How. 14 .' 31 1 Oliver v. State, 45 N. J. L. 272 30!) O'Meara v. State, 17 Ohio St. 515, 517 106 Orr V. State, 107 Ala. 35, 37 402 405 Orr V. State, 18 Ark. 540 '. . .'.'.'. '396 Orr V. State, 81 Miss. 130 236 Orr V. State, 25 Tex. App. 453 296 OBgood V. People, 39 N. Y. 499, 451 '. 399 407 Table of Cases. xlvii SECTION Oshe V. State, 37 Ohio St. 494 384 O'Shields v. State, 92 Ga. 472 124 Otero V. State, 30 Tex. App. 450 351 Our House No. 2 v. State, 4 G. Greene (Iowa), 172 322, 330 Outley V.' State (Tex. Cr. App. 1907 ) , 99 S. W. 95 128 Overly v. State, 34 Tex. Cr. App. 500 241 Overshiner v. Commonwealth, 2 B. Mon. (Ky.) 344 446 Overton v. State, 60 Ala. 73 152, 155 Owen V. State, 5 Sneed. (Tenn.) 493 276, 361, 362 Owens V. State, 46 Tex. Cr. 14 148 Owens V. State, 35 Tex. Cr. 345 394 Owens V. State, 25 Tex. App. 552 84, 149 Ownes V. State, 104 Ala. 18 348 P. Packer v. People, 8 Colo. 361 430 Padgett v. State, 103 Ind. 550 129 Paducah & Elizabethtown R. R. Co. v. Commonwealth, 80 Ky. 147 200 Paetz V. State (Wis. 1906), 107 N. W. 1090 366 Paige V. People, 3 Abb. Dec. 439 273 Paine v. State, 89 Ala. 26 253 Pairo V. State, 49 Ala. 25 152 Palmer v. People, 138 111. 356 182, 273, 301 Palmer v. People, 5 Hill (N. Y.), 427 366 Parker v. Commonwealth, 12 Bush (Ky.), 191 63, 111 Parker v. People, 13 Colo. 144 40-5 Parker v. State, 125 Ala. 86 442 Parker v. State, 114 Ala. 690 206 Parker v. State, 18 Ind. 424 296 Parker v. State, 9 Tex. App. 351 245, 246 Parkinson v. State, 14 Md. 184 371 Parkinson v. State, 3 Gratt. 587 241 Parkinson v. State, 2 W. Va. 589 352 Parkinson v. United States, 121 U. S. 281 29 Parmer v. State, 41 Ala. 416 68, 135 Parnell v. State, 129 Ala. 6 128 Parrish v. State, 14 Md. 238 298 Patrick v. State, 16 Neb. 330 85 Patton V. State (Tex. App.) , 19 S. W. 252 374 Payne v. State, 74 Ind. 203 278 Peacock Distillery Co. v. Commonwealth, 25 Ky. Law Rep. 1778 414, 420 Pearce v. State, 1 Sneed. (Tenn.) 63 241 Pemberton v. State, 85 Ind. 507 244 Pence v. Commonwealth, 95 Ky. 618 143 Pence v. Commonwealth, 16 Ky. Law. Rep. 148 ]3.3 Pennaman v. State, 58 Ga. 337 282 Pennsylvania v. Bell, Add. (Pa.) 155, 173 163 People V. Adams, 85 App. Div. (N. Y. ) 351 371 People V. Adams, 72 App. Div. (N. Y.) 166 410 People V. Adams, 17 Wend. (N. Y.) 475 265, 322, 407, 418 People V. Adler, 140 N. Y. 331 399, 404, 406 People V. Ah Chung, 54 Cal. 398 76 People V. Ah Hop, 1 Ida. 698 26'i People V. Ah Own, 39 Cal. 604 42o People V. Ah Sum, 92 Cal. 648 igo People V. Ah Yek, 29 Cal. 576 278 People V. Aikin, 66 Mich. 460 39g People V. Albow, 140 N. Y. 130, 134 241, 246, 249 374 People V. Alderdice, 120 App. Div. (N. Y.) 368, 105 N. Y. Supp. 395. .37l' 399 xlviii Table of Cases. SECTIOir People V. Aldrich, 104 Mich. 455 263 People V. Allen, 5 Den. (N. Y.) 76, 79 374 People V. Altman, 86 Hun, 568 263 People V. Anderson, 80 Cal. 205 358 People V. Aro, 6 Cal. 207 241 People V. Ashmaner, 47 Cal. 98 449 People V. Attman, 147 N. Y. 473 401 People V. Baker, 100 Cal. 188 301 People V. Baker, 3 Hill (N. Y.), 159 397, 398, 402 People V. Bates, 61 App. Div. (N. Y.) 559 276 People V. Beatty, 14 Cal. 566, 570 66, 165, 239 People V. Behee, 90 Mich. 356 335 People V. Bennett, 37 N. Y. 117 149, 153, 174, 177, 180, 207, 273, 351 People V. Berry, 4 Park. Cr. (N. Y.) 657 107 People V. Bissert, 71 App. Div. (N. Y.) 118 108 People V. Blanchard, 90 N. Y. 314 241 People v. Blackwell, 27 Cal. 65 130 People V. Bogart, 36 Cal. 245 .' 270, 364 People V. Bosworth, 64 Hun (N. Y.), 72 366 People V. Breen, 130 Cal. 72 59 People V. Breese, 7 Cow. (N. Y.) 429 276, 308 People V. Brown, 110 Mich. 168 365 People V. Brown, 16 Wend. (N. Y.) 561 14 People V. Buck, 109 Mich. 687 366 People V. Buddensieck, 4 N. Y. Or. E. 230 296, 322 People V. Burns, 53 Hun (N. Y.), 274 354 People V. Bush, 4 Hill, 133 293 People V. Butler, 8 Cal. 435 75 People V. Butler, 1 Ida. 231 326, 371 People V. Butler, 3 Cow. (N. Y.) 347 366 People V. Callaghan, 29 Hun (N. Y.), 580 404, 405 People V. Calvin, 60 Mich. 113 264 People V. Campbell, 59 Cal. 243 41, 43 People V. Campbell, 4 Park. Cr. R. (N. Y.) 386 32 People V. Carabin, 14 Cal. 438 97 People V. Casey, 72 N. Y. 393 422 People V. CasteUo, 1 Denio, 83 402 People V. Chadwick (Cal. App. 1906) , 87 Pac. 384 '.[ 281 People V. Charbineau, 1 15 N. Y. 432 395 People V. Clark, 10 N. Y. Supp. 642 228 People V. Cleary, 13 Misc. K. 546 381 People V. Coimer, 17 Cal. 354 160 People V. Collins, 105 Cal. 504 304 People V. Collins, 7 Johns. (N. Y. ) 549 . 230 People V. Conroy, 97 N. Y. 62, 69 327 380 People V. Cook, 2 Park. 2 Cr. R. (N. Y.) 12 368* 435 People V. Cook, 45 Hun (N. Y.) , 34, 37 '366 People V. Coomb, 36 App. Div. (N. Y.) 284 '.[ 423 People V. Cooper, 3 N. Y. Cr. R. 117 274 275 People V. Corbailis, 178 N. Y. 516 '. ....... . .' 379 People V. Corbalis, 86 App. Div. 531 379 People V. Cornyn, 36 Misc. R. 135 I3 People V. Costello, 1 Den. 83, 90 398 People V. Cox, 67 App. Div. (N. Y.) 344 50 People V. Cronin, 34 Cal. 191 270 People V. Cronin, 80 Mich. 576, 45 N. W. 479 374 People V. Crotty, 9 N. Y. Supp. 937 .".'.!!.!.!.'!!!.!.! 404 Table of Cases. xlix SECTION People V. Cryder, 6 Cal. 23 '. 428 People V. Cuddihi, 54 Cal. 53 290 People V. Curling, 1 Johns. (N. Y.) 320 364 People V. Danihy, 63 Hun (N. Y.), 579 346 People V. Davis, 56 N. Y. 95 298, 400, 404, 406 People V. Davis, 8 Utah, 412, 32 Pac. 670 333 People V. Decarie, 80 Mich. 578, 45 N. W. 491 390, 391 People V. De La Guerra, 31 Cal. 459 406 People V. Diamond, 72 App. Div. 281 88 People V. Dimick, 107 N. Y. 13 61, 402 People V. District Court, 29 Colo. 83 85 People V. Dorthy, 20 App. Div. (N. Y.) 308, 309 1 People V. Dougherty, 7 Cal. 395 303 People V. DuflF, 1 N. Y. Cr. R. 307 68 People V. Duford, 66 Mich. 90 202 People V. Dumar, 106 N. Y. 502 288, 379 People ▼. Dunn, 53 Hun (N. Y.), 381 365 People V. Ebanks, 120 Cal. 626 39 People V. Egan, 116 Cal. 287 399 People V. Ellsworth, 90 Mich. 442 326, 418 People V. Ellsworth, 68 Mich. 496 370 People V. Emerson, 53 Hun (N. Y.), 437 402, 409 People V. Ennis, 137 Cal. 263 245 People V. Enoch, 13 Wend. (N. Y.) 159 326, 327, 380, 381, 435, 436 People V. Eppinger, 105 Cal. 36 374 People V. Erwin, 4 Den. (N. Y.) 130 428 People V. Etting, 99 Cal. 577 448 People V. Everest, 51 Hun, 19, 26 263, 399, 400 People V. Fadner, 10 Abb. N. C. (N. Y.) 462 276 People V. Fairbanks, 7 Utah, 3, 24 Pac. 538 390 People V. Farrell, 28 N. Y. St. E. 43 293 People V. Ferguson, 119 Mich. 373 361 People V. Ferris, 56 Cal. 442 357 People V. Fick, 89 Cal. 144 264 People V. Fish, 4 Park. Cr. E. 206 333 People V. Fish, Sheld. (N. Y.) 537 354 People V. Fiaher, 14 Wend. (N. Y.) 9 106 People V. Fitzgerald, 92 Mich. 328, 331 245, 335 People V. Fitzgerald, 37 N. Y. 413 327, 380 People V. Flaherty, 162 N. Y. 532 394 People V. Flaherty, 79 Hun (N. Y.), 48, 50 1, 374 People V. Forney, 81 Cal. 118 326 People V. Frank, 28 Cal. 507 399 People V. Franklin, 3 Johns. Cas. (N. Y.) 299 344 People V. Frazier, 36 Misc. E. 280 392 People V. Gantz, 41 Misc. R. 542 13 People V. Gardner, 2 Johns. (N. Y. ) 477 299 People V. Gates, 13 Wend. (N. Y.) 311, 317 1, 241, 250 People V. Gatewood, 20 Cal. 146 77 People V. Gilkinson, 4 Park. Cr. R. (N. Y.) 26 202, 260, 264 People V. Girardin, 1 Mich. 90 345 People V. Glen, 173 N. Y. 395 442 People V. Goldenson, 76 Cal. 328 88 People V. Gosset, 93 Cal. 641 4I5 People V. Granice, 50 Cal. 447 32, 53, 212 People V. Guernsey, 3 Johns. Cas. (N. Y.) 265 172 People V. Gusti, 113 Cal. 177 399 People V. Haight, 54 Hun, 8 241 1 Table of Cases. sECTiorr People V. Halbrook, 13 Johns. R. (N. Y.) 90 381 People V. Hall, 19 Cal. 425 351 People V. Hallenbeck, 52 How. Pr. (N. Y.) 502 346 People V. Halliday, 5 Utah, 467 326 People V. Hamilton, 101 Mich. 87 408 People ▼. Hansehnan, 76 Cal. 460 351 People V. Haren, 35 Misc. 590 399 People V. Harmon, 49 Hun (N. ¥.), 558 402 People V. Harold, 84 Cal. 568 399 People V. Harriot, 3 Park. Cr. (N. Y.) 112 77 People T. Harris, 7 N. Y. Supp. 773 399 People V. Haynes, 55 Barb. (N. Y.) 450 174, 180 People V. Hehner, 13 App. Div. 426 381 People V. Henry, 77 Cal. 445 361 People V. Herlihy, 66 App. Div. (N. Y.) 540 371 People V. Herman, 45 Hun (N. Y.), 175 365 People V. Hesslng, 28 111. 410 99 People V. Hill, 3 Utah, 334 399 People Y. Higbie, 66 Barb. (N. Y.) 131 350, 371 People V. Hislop, 77 N. Y. 331 14, 16 People V. Hoagen, 139 Cal. 115 209 People V. Hoening, 86 N. Y. Supp. 673 13 People V. Hoffman, 142 Mich. 531 325 People V. Hogan, 14 N. Y. Supp. 233 348 People V. Honeyman, 3 Den. (N. Y.) 121 306 People V. Hood, 6 Cal. 236 241, 259, 261 People V. Horton, 62 Hun (N. Y.), 610 307 People V. Horton, 4 Park. Cr. R. (N. Y.) 222 88 People V. Houghkerk, 96 N. Y. 149 76 People V. Howes, 81 Mich. 396 442 People V. Hulbut, 4 Den. (N. Y.) 133 123, 125 People V. Hyndman, 99 Cal. 1 293 People V. Jackson, 96 Mich. 269, 274 398 People V. Jackson, 111 N. Y. 362 310, 311 People V. Jackson, 3 Den. 101 264 People V. Jackson, 3 Hill (N. Y.), 92 366 People V. Jackson, 8 Barb. (N. Y.) 637 348, 361, 362 People V. Jeffery, 82 Hun (N. Y.), 409 350 People Y. Jenness, 5 Mich. 305 310, 398 People V. Jewett, 3 Wend. (>'. Y.) 314 85, 86 People V. Johnson, 81 Mich. 573 416 People V. Johnson, 104 N. Y. 213 365 People V. Johnson, 2 Wheeler's Cr. Cas. ( N. Y. ) 361 397 People V. Johnston, 48 Cal. 549 445 People Y. Kane, 161 N. Y. 380, 386 246, 379 People V. Kane, 43 App. Div. 472 256 People V. Kane, 61 N. Y. Supp. 195, 632 372, 382; 393, 399 People V. Kaufman, 14 App. Div. ( N. Y. ) 305 346 People V. Keefe, 40 N. Y. 348 380 People V. Keeley, 81 Cal. 210 371 People V. Kellogg, 105 App. Div. (N. Y.) 505 402, 409 People V. Kellv, 6 Cal. 210 221, 232, 235. 236, 323 People V. Kelly, 3 N. Y. Cr. R. 272 404 People V. Kennedy, 39 N. Y. 245 3S0 People V. Kerns. 7 .^pp. Div. (N. Y.) 535 405 People V. King, 110 N. Y. 418 374 People V. Kingsley, 2 Cow. |N. Y.) 522 3.-J0. 340, 344 People V. Klipfel, 160 N. Y. 371, 374 379. 392, 412 Table of Cases. H BECnON People V. Klock, 48 Hun (N. Y.), 275 381 People V. Knatt, 156 N. Y. 302 61 People V. Lafuents, 6 Cal. 202 308 People V. Lange, 56 Mich. 549 424 People V. Lauder, 82 Mich. 109 76 People V. Lawrence, 21 Cal. 368 441 People V. Lawrence, 137 N. Y. 517 283, 264, 377 People V. Lee, 2 Utah, 441 130 People V. Leonard, 106 Cal. 302 93 People V. Lewis, 111 App. Div. (N. Y.) 555, 558 241, 245 People V. Linhardt, 4 N. Y. Crim. 327 413 People V. Liscomb, 60 N. Y. 589 398 People V. Littlefield, 5 Cal. 355 190 People V. Logan, 1 Nev. Ill 245, 246 People V. Lohman, 2 Barb. 216 263, 326 People V. Lowndes, 130 N. Y. 455 374, 381 People V. Lufton, 52 Misc. "R. (N. Y.) 336 391 People V. Marion, 28 Mich. 255 237 People V. Martin, 52 Cal. 201 , 326 People V. Martin, 77 App. Div. (N. Y.) 406 428 People V. Mather, 3 Wend. 229 354 People V. Maxon, 57 Hun, 367 289 People V. McCann, 67 N. Y. 507 276 People V. McCarthy, 168 N. Y. 549 61, 67, 88 People V. McCarthy, 110 N. Y. 309 409, 410 People V. McCarthy, 5 Utah, 280 351 People V. McGuiness, 15 N. Y. Supp. 230 311 People V. McKane, 80 Hun (N. Y.) , 322 97 People V. McKinney, 10 Mich. 54 285, 396 People V. McNulty, 93 Cal. 427 273 People V. Mellen, 40 Cal. 654 299 People V. Menken, 36 Hun (N. Y.), 90 402 People V. Miller, 137 Cal. 642 314, 323 People V. Miller, 12 Cal. 291 310, 315, 316 People T. Mitchell, 92 Cal. 590 326, 337 People V. Monroe Oyer & Terminer, 20 Wend. (N. Y.) 108 107 People T. Montejo, 18 Cal. 38 421 People V. Mosier, 73 App. Div. (N. Y.) 5 107 People V. Murphy, 39 Cal. 52 243, 252, 254 People V. Murray, 10 Cal. 309 371 People V. Murray, 57 Mich. 396 371 People V. Myers, 20 Cal. 76 267 People V. Myers, 2 Hun (N. Y.), 6 149, 176 People V. Neidhart, 35 Mise. R. (N. Y.) 191 120 People V. Neil, 91 Cal. 465 372 People V. Nesbitt, 102 Cal. 327 348 People V. Nolan, 144 Cal. 75 38, 238 People V. Northey, 77 Cal. 618 86 People V. O'Donnell, 46 Hun (N. Y.), 358 402 People V. Oliveria, 127 Cal. 376 230 People V. Olmstead, 30 Mich. 431 237 People V. Olmsted, 74 Hun (N. Y.), 323 276, 374 People V. O'Malley, 52 App. Div. (N. Y.) 47 404 People V. O'Neil, 48 Cal. 257 296 People V. Ostrander, 19 N. Y. Supp. 328 335 People V. Ostrander, 45 N. Y. S. R. 559 339 People V. Paige, 1 Ida. 102 239 People V. Paguin, 74 Mich. 34 399 lii Table of Cases. SECTION People V. Parman, 7 Utah, 7, 24 Pac. 539 390 People V. Peckens, 153 N. Y. 576, 580 379 Phelps V. People, 72 N. Y. 334 386, 374 People V. Phipps, 39 Cal. 326 290, 291 People V. Pierson, 176 N. Y. 201 374 People V. Piggolt, 126 Cal. 509 351 People V. Piatt, 67 Cal. 21 348 People V. Plyler, 121 Cal. 162 424 People V. Powers, 6 N. Y. 50 366, 368 People V. Prather, 134 Cal. 436 21 People V. Price, 74 Mich. 37 348 People V. Price, 6 N. Y. Cr. R. 141 366 People V. Quimby, 113 App. Div. (N. Y.) 793 374 People V. Raymond, 96 N. Y. 38 366 People V. Reed, 47 Barb. (N. Y.) 235 384 People V. Ribolski, 89 Cal. 492 351 People V. Rice, 73 Cal. 220 350 People V. Rice, 13 N. Y. Supp. 161 402 People V. Richards, 108 N. Y. 137 352 People V. Riley, 75 Cal. 98 350 People V. Roberts, 6 Cal. 214 128 People V. Robles, 34 Cal. 591 350 People V. Rockhill, 74 Hun (N. Y.), 241 169, 374, 418 People V. Rohrer, 100 Mich. 126 398 People V. Romaine, 1 Wheeler's Cr. Cas. 369 351 People V. Rose, 39 N. Y. R. 291 404, 405 People V. Rowe, 4 Park. Cr. (N. Y.) 253 92 People V. Rugg, 98 N. Y. 537 402 People V. Russell, 80 Cal. 616 371 People V. Rynders, 12 Wend. (N. Y.) 425 114, 115, 381, 398, 402 People V. Satterlee, 5 Hun (N. Y.), 167 410 People V. Savercool, 81 Cal. 650 371 People V. Scannell, 37 Misc. R. 345 37, 68, 71 People V. Sehatz, 50 App. Div. 544 259 People V. Schwartz, 32 Cal. 160 362, 364 People V. Scott, 74 Cal. 94 299 People V. Seldner, 62 App. Div. (N. Y.) 357 293 People V. Shaber, 32 Cal. 36 351 People V. Shannon, 87 App. Div. 32 311 People V. Sheriff, 11 N. Y. Civ. Proe. 172 118 People V. Shotwell, 27 Cal. 394 392, 399 People V. Smith, 103 Cal. 563 335 People V. Smith, 94 Mich. 644 359 People V. Smith, 56 Misc. R. (N. Y. ) 1 371 People V. Smith, 3 How. Pr. (N. Y. ) 226 353 People V. Smith, 4 Park. Cr. R. (N. Y.) 255 299 People V. Smith, 1 Park. Cr. R. 329 233, 351 People V. Special Sessions, 7 Hun (N. Y.), 214 276 People V. Squires, 99 Cal. 327 321 People V. Stacy (N. Y. App. Div. 1907), 104 N. Y. Supp. 615 377 People V. Staples, 91 Cal. 23 299 People V. Starbuck, 14 Ohio St. 285 384 People V. Stark, 136 N. Y. 538 241, 270 People V. Stark, 59 Hun (N. Y.), 51, 58. 1 People V. Stark, 12 N. Y. Supp. 688 241 People V. State, 3 How. Pr. (N. Y.) 226 353 People V. Stedeker, 175 N. Y. 57 375, 390, 391 People V. Stevens, 13 Wend. {N. Y. ) 341 14, ; 16 Table of Cases. liii „ , „ , SECTION People V. Stock, 21 Misc. Rep. (N. Y.) 147 392, 393 People V. Stockham, 1 Park. Cr. R. (N. Y.) 424 .' 385 People V. Stocking, 50 Barb. 573 250, 311 People V. Sullivan, 4 N. Y. Cr. R. 193, 197 288, 289 People V. Summers, 115 Mich. 538 404, 406 People V. Sweeney, 55 Mich. 586 394, 404, 409, 410, 414 People V. Swenson, 49 Cal. 388 282 People V. Taylor, 3 Ben. (N. Y.) 91, 95 270, 371, 372, 376 Parker v. Territory, 9 Okla. 109 390 People V. Thompson, 122 Mich. 411 74 People V. Thorn, 21 Misc. R. (N. Y.) 130 ../........ 411 People V. Thompson, 41 N. Y. 1 380 People V. Thompson, 3 Park. Cr. (N. Y.) 208 381 People V. Thrall, 50 Cal. 415 319 People V. Thurston, 5 Cal. 69 74 People V. Thurston, 2 Park. Cr. R. (N. Y.) 49 163 People V. Tomlinson, 35 Cal. 503 382 People V. Townsey, 5 Den. (N. Y.) 70 387 People V. Trainer, 57 App. Div. (N. Y.) 422 404, 406, 409, 413 People V. Turner, 122 Cal. 679 330, 331 People V. Tweed, 63 N. Y. 194 285, 286 People V. Tyler, 35 Cal. 553 399, 410 People V. Van Alstine, 57 Mich. 69 359, 392 People V. Van Home, 8 Bark. (N. Y.) 158 115, 409 People V. Van Santwood, 9 Cow. 655 311 People V. Walbridge, 6 Cow. (N. Y.) 512 327, 384, 438 People V. War, 20 Cal. 117 241 People V. Ward, 85 Cal. 585 326 People V. Warner, 5 Wend. (N. Y.) 271 339 People V. Warren, 109 N. Y. 615 121 People V. Webb, 127 Mich. 29 273 People V. Webber, 133 Cal. 623 298 People V. Webster, 17 Misc. (N. Y.) 410, 413 327, 371 People V. Weldon, 111 N. Y. 569, 574 374 People V. Wessel, 98 Cal. 352 278 People V. West, 106 N. Y. 293 371, 374, 389 People V. Weston, Sheld. (N. Y.) 555 275 People V. Whelan, 117 Cal. 559 21 People V. White, 34 Cal. 183 371 People V. White, 22 Wend. (N. Y.) 167, 176 265, 380 People V. White, 20 Wend. 520, 570 1 People V. Wicks, 11 App. Div. (N. Y.) 539 421 People V. Wilber, 4 Park. Cr. R. (N. Y.) 19 372, 389 People V. Willett, 105 Mich. 110 293 People V. Williams, 35 Cal. 671 187, 250 People V. Williams, 149 N. Y. 1 371 People V. Williams, 92 Hun (N. Y. ) , 354 374 People V. Willis, 158 N. Y. 392 277, 37'J People V. Willson, 109 N. Y. 345 , 163, 164, 174 People V. Wilson, 151 N. Y. 403 404, 405 People V. Wise, 3 N. Y. Cr. R. 303 256, 339 People V. Wong Wang, 92 Cal. 277 298 People V. Wright, 136 N. Y. 626 409, 410 People V. Wright, 9 Wend. (N. Y.) 193 392, 393 People V. Young, 151 N. Y. 210 60 People V. Youngs, 1 Gaines, 37 366 Perdue v. Commonwealth, 96 Pa. St. 311 201 Perkins v. State, 66 Ala. 457 109, 118 liv Table of Cases. BECTIOK Perkins y. State, 50 Ala. 154 152 Perry v. State, 44 Tex. 473 380 Peters v. State, 100 Ala. 10 348 Peters v. State (Tex. Cr. App.), 23 S. W. 683 202, 205 Peters v. United States, 94 Fed. 127 250 Peterson v. State, 64 Neb. 875 371 Peterson v. State, 32 Tex. 477 228 Pettes V. Commonwealth, 126 Mass. 242 428 Pettibone v. United States, 148 U. S. 197 241, 245, 376 Pfister V. State, 84 Ala. 432 348 Phelps V. People, 72 N. Y. 334 371 Philadelphia & C. R. R. Co. v. State, 20 Md. 157 301 Phillips V. State, 35 Ark. 384 223 Phillips V. State, 85 Tenn. 551 351 Phillips V. State, 29 Tex. 226 257 Phillips V. State, 19 Tex. 158 15 Pickens v. State, 58 Ala. 364 196 Pierce v. State, 12 Tex. 210 70, 136 Pitner v. State, 23 Tex. App. 366 37 Pittman v. State, 25 Fla. 648 133 Point V. State, 37 Ala. 148 357 Pointer v. United States, 151 U. S. 396, 403 397 Polinsky v. People, 73 N. Y. 65, 69 264, 398, 420 Polinsky v. People, 11 Hun (N. Y.), 390 276 Pond V. State, 55 Ala. 190 201 Pond V. State, 47 Miss. 39 128 Pontius V. People, 82 N. Y. 339 243 Pooler V. United States, 127 Fed. 509 268, 392 Poore V. People, 26 111. App. 137 241 Porter v. State, 26 Fla. 56 270, 348, 349 Porter v. State, 17 Ind. 415 131 Post V. United States, 161 U. S. 583 61 Postwood V. Commonwealth, 4 Ky. Law Eep. 369 254 Postwood V. State, 29 Tex. 47 372, 376 Potsdamer v. State, 17 Fla. 895 181 Potter V. State, 39 Tex. 388 259 Powers V. Commonwealth, 90 Ky. 167 383 Powers V. State, 87 Ind. 144 135, 171 Powers V. State, 87 Ind. 97 337 Preice, Ex parte, 155 Fed. 663, 665 377 Prescott V. State, 19 Ohio St. 184 37 Price V. Commonwealth, 21 Grat. ( Va.) 846, 855 135, 440, 445 Price V. State, 67 Ga. 723 232 Price V. State, 19 Ohio, 423 221 Pride v. State, 125 Ga. 748 106 Prince v. State, 140 Ala. 158, 163 447 Piircelly v. State, 29 Tex. App. 1 326 Purvis V. Commonwealth, 13 Ky. Law Rep. 744 241 Puryear v. State, 28 Tex. App. 73 360 Pusey V. Commonwealth, 5 Ky. Law Rep. 538 308 Putzell V. State, 15 Ark. 71 61 Q. Qualey v. Territory, 8 Ariz. 45 412 Queen v. Birmingham and Gloucester Railway Co., 43 Eng. Com. Law 708 228 Queen v. Bradlangh, 2 Q. B. D. 569 280 Table of Cases. Iv SECTION Queen v. Davis, 4 New Sess. Cas. 611 225 Queen v. Ingham, 5 Best & S. 257, 270 10 Queen v. State, 82 Ind. 72 270 Quinlan v. People, 6 Park. Cr. (N. Y. ) 9 244 R. Rafferty, In re, 1 Wash. 382 38 Rainey v. People, 8 111. 71 128 Rainey v. People, 3 Gilm. 71'. 128 Rainey v. State, 19 Tex. App. 479 68, 74 Rains v. State, 137 Ind. 83, 36 N. B. 532 348 Randall v. State, 132 Ind. 539 238 Ransbottom v. State, 144 Ind. 250, 252 129 Rauch V. Commonwealth, 78 Pa. St. 490 366 Rawlings v. State, 2 Md. 201 264, 383, 384, 385, 386 Rawlins v. State, 124 Ga. 31 428 Rawls V. State (Tex. Cr. App. 1905) , 89 S. W. 1071 228 Rawson v. State, 19 Conn. 292 313 Reagan v. State, 28 Tex. App. 227 409 Rector v. State, 6 Ark. 187 17 Reddiek v. State, 4 Tex. App. 32 17 Reed v. People, 86 N. Y. 381, 382 399, 400 Reed v. People, 1 Park. Cr. R. (N. Y.) 481 392 Reed V. State, 88 Ala. 36 348, 416 Reed v. State, 34 Tex. Cr. 597 353 Reed v. State, 32 Tex. Cr. 139 351 Reeves v. State, 20 Ala. 33 149, 152, 155, 301 Reg. V. Beeton, 2 C. & K. 960 405 Reg. V. Bidwell, 1 Denison's C. C. 222, 227 272 Reg. V. Bradlaugh, 38 L. T. Rep. N. S. 118, 121 345 Reg. V. Flower, 3 Jur. 558 285 Reg. V. Ingraham, 1 Salk. 384 427 Reg. V. Mayor & Corporation of Poole, 57 Law T. N. I. 485 435 Reg. V. Munslow (1895), 1 Q. B. 758 329 Reg. V. O'Connor, 5 Q. B. 16, 31 296 Reg. V. Orchard, 8 C. & P. 565 235 Reg. V. Philpots, 47 Eng. Com. Law, 112 336 Reg. V. Sowerby (1894), 2 Q. B. 173 : 354 Reg. V. Stroud, 1 Car. & K. 187 360 Reg. V. Trueman, 8 Carr & P. 727 402 Reg. V. Williams, 1 Salk. 384 427 Reg. V. Willis, 1 Car. & K. 722 360 Reg. V. Wyatt, 2 Ld. Raym. 1191 272 Reich V. State, 53 Ga. 73 81, 83 Reinbold v. State, 130 Ind. 467 348 Rema v. State, 52 Neb. 375 314 Eemero v. State, 60 Conn. 92 30 Respublica v. Newell, 3 Yeates (Pa.) , 407, 414 437 Reum V. State (Tex. Cr. App.), 90 S. W. 1109 400 Rex V. Atkins, 3 Burr. 1706 10 Rex V. Benfield, 2 Burr. 980 423 Rex V. Carll, 2 Strange, 789 345 Rex V. Clark, Cowp. 610 14 Rex V. Cross, 1 Raym. 711 427 Rex V. Davis, 1 Leach. 556 331 Rex v. Davis, 7 Car. & P. 319 211 Rex V. Everett, 8 B. & C. 114 280 Rex V. Harris, 7 C. & P. 416 199 Ivi Table of Cases. SECTION Rex V. Hodgson, 3 Carr. & P. 422 285 Rex V. Holland, 5 Term R. 623 241 Rex V. Hymen, 7 Term. R. 536 14 Rex V. Jackson, 1 Leach. 303 280 Rex V. Jarvls, 1 East, 644 278 Rex V. Leese, 2 Camp. 134 339 Rex V. Lovibund, 24 L. T. 357 13 Rex V. Malland, 2 Strange, 828 15 Rex V. Mayor, etc., of Stratford-upon-Avon, 14 East, 348 228 Rex V. Mead, 1 Burr. 542 14 Rex V. Norton, 8 C. & P. 196 280 Rex T. Osborn, 3 Burr. 1697 10 Rex V. Osmer, 5 East, 304 280 Rex V. Robinson, 2 Burr. 799 14 Rex V. Sparling, 1 Strange, 498 345 Rex V. Stapleton, 1 Crawford & Dix's C. R. 163 427 Rex V. Storr, 3 Burr. 1698 10 Rex V. Wilkes, 4 Burr. 2563 181 Rex V. Wright, 1 Burr. 543 13 Reyes v. State, 34 Fla. 181 283, 347 Reynolds v. People, 17 Abb. Pr. (N. Y.) 413 309, 324 Reynolds v. State, 2 Nott. & M. 365 390 Reynolds v. State, 11 Tex. 120 449 Rhode V. State, 29 Tex. 188 144 Rhodes v. Commonwealth, 78 Va. 692, 696 '. 310, 311 Rice V. People, 15 Mich. 9 371 Rice V. State, 3 Heish. (Tenn.) 215 32, 430, 433 Richardson v. State, 66 Md. 205, 210 1, 432 Richberger v. State (Miss. 1907 ) , 43 So. 159 381 Ricker v. State, 7 Tex. App. 549 418 Riddling v. State, 56 Ga. 601 77, 80 Riggs V. State, 104 Ind. 261 237, 238 Riggs V. State, 26 Miss. 51, 54 246, 250 Riley v. State, 43 Miss. 397 371 Riley v. State, 27 Tex. App. 606 209 Rippey v. State, 29 Tex. App. 37 143 Ritter v. State, 111 Ind. 324 381 Roage V. State, 3 Ohio St. 229 374 Robbins v. State, 119 Ga. 570 377 Roberson v. State, 45 Fla. 94 145, 146 Roberts v. State, 19 Ala. 526 309 Roberts v. State, 83 Ga. 369 348 Roberts v. State, 72 Miss. 110, 16 So. 233 339 Robertson v. Commonwealth ( Va. ) , 20 S. E. 362 264 Robeson v. State, 3 Heisk. (Tenn.) 266 338 Robinson v. Commonwealth, 88 Va. 900, 902 149, 154, 175 Robinson v. State, 24 Tex. App. 4 445 Rocha V. State, 43 Tex. Cr. 169 263 Roe V. State, 82 Ala. 68 136 Rogers v. State, 79 Ala. 59, 61 99 RoUand v. Commonwealth, 82 Pa. St. 306 70 Romero v. State, 60 Conn. 92 55 Rom.p v. State, 3 G. Greene, 276 371 Rooks V. State, 83 Ala. 79 221 Rose V. State, Minor (Ala.), 28 149 Rosekrans v. People, 3 Hun (N. Y.) , 287 399 Rosen v. United States, 161 U. S. 29 280, 283, 284, 345, 386 Rosenbefger v. Commonwealth, 118 Pa. St. 77 106, 365 Table of Cases. Ivii SECTIOIf Eoss V. State, 55 Ala. 177 365 Rowan v. Commonwealth, 82 Pa. St. 405 87 Rowan v. State, 30 Wis. 129 36, 37, 51, 295 Rowland \. Commonwealth, 82 Pa. St. 405 117 Rowlett V. State, 23 Tex. App. 191 138 Royce v. Territory, 5 Okla. 61, 69 68, 103, 124 Rucker v. State (Tex. Cr.) 26 S. W. 65 350 RufuB V. State, 117 Ala. 131 219 Ruge V. State, 62 Ind. 388 313 Runnella v. State, 34 Tex. Cr. 431 326 S. Saco V. Wentworth, 37 Me. 172 25 Sampson v. Commonwealth, 5 Watts & S. (Pa.) 385, 388 188 Sampson v. State, 124 Ga. 776. 128 Sampson v. State (Tex. Cr. App.) , 20 S. W. 708 312 Samuels v. State (Tex. Cr.), 29 S. W. 1079 413 Sanderlin v. State, 2 Humph. 315 301 Sanders v. State, 86 Ga. 717, 12 S. B. 1058 348, 372 Sanderson v. Commonwealth, 11 Ky. Law Rep. 341 405 Sands v. States, 80 Ala. 201 276 Sarah v. State, 28 Miss. 267 329, 333, 396 Satterfleld v. Commonwealth (Va. 1906), 52 S. E. 979 366, 368 Satterwhite v. State, 6 Tex. App. 609 298, 308 Sattler v. State, 59 111. 68. 128 Sault V. People, 3 Colo. App. 502 354 Savage v. State, 18 Fla. 909 183 Savannah F. & W. R. Co. v. State, 23 Fla. 579 330 Scales V. State, 46 Tex. Cr. 296 408 Scarlett v. State, 25 Fla. 717 241 Schaffer v. State, 22 Neb. 557 326 Schilling v. Territory, 2 Wash. Ter. 283 276 Schley v. State (Fla. 1904), 37 So. 518 381 Schmidt v. State, 78 Ind. 41 337, 376 Schneider v. State, 8 Ind. 410 390 Schrumpf v. People, 14 Hun (N. Y.), 10 276 Schultz V. State, 15 Tex. App. 258 147 Scrivener v. State, 44 Tex. Cr. Rep. 232 143 Scott V. Commonwealth, 14 Grat. ( Va.) 687 89 Scott V. People, 141 111. 195 371 Scott V. State, 46 Tex. Cr. 305 418 Soudder v. State, 62 Ind. 13 238 Searcy v. State, 4 Tex. 450 296 Segars v. State, 35 Tex. Cr. 45 399 Seifried v. Commonwealth, 101 Pa. St. 200 298 Serpentine v. State, 1 How. 256 319 Seville v. State, 49 Ohio St. 117, 30 N. E. 621 390 Shanks v. State, 51 Miss. 464 249 Shanse v. Commonwealth, 5 Pa. St. 83 425 Sharp V. State, 2 Iowa, 455 96 97 Shaw V. State, 18 Ala. 547, 550 '. ..'.'.'. . .' 426 Shay V. People, 22 N. Y. 317 I93, 207 Shehane v. State, 13 Tex. App. 533 I47 Shelbyville & Eminence T. P. R. Co. v. Commonwealth, 9 Ky. Law R. 244 . . 428 Shelton v. Commonwealth, 89 Va. 450 312, 442 Shelton v. State, 1 Stew. & P. 208 . 310 Iviii Table of Cases. SECTIOK Shepherd v. State, 64 Ind. 43 61 Sherlan v. Commonwealth, 8 Watts. 212 250 Sherriek v. State (Ind. 1906), 79 N. E. 193 285 Shiff V. State, 86 Ala. 454 236 Shiflett V. Commonwealth, 90 Va. 386 235 Shiver v. State, 41 Fla. 630 429 Shivers v. State, 123 Ga. 538 33 Shivers v. Territory, 13 Okla. 466 280 Short V. State (Tex. Civ. App.), 29 S. W. 1073 133 Shotwell V. State, 43 Ark. 345 380 Shubert v. State, 20 Tex. App. 330 39.i Shutte's Appeal, 130 Pa. St. 272 405 Sikes V. State, 67 Ala. 77 321 Simmons v. Commonwealth, 89 Va. 156 128 Simms v. State, 32 Tex. Cr. App. 277 241 Simons v. State, 25 Ind. 331 392 Sims V. Commonwealth, 12 Ky. Law Eep. 215 447 Sims V. State, 110 Ga. 290 409 Sims V. State, 51 Ga. 495 96 Sinclair v. State, 34 Tex. Cr. 453 236 Sizemore v. State, 3 Head, 26 237 Skinner v. State, 30 Ala. 524 218 Skinner v. State, 120 Ind. 127 371 Slater, Ex parte, 72 Mo. 102, 106 1, 11, 61, 63, 64, 111 Slymer v. State, 62 Md. 237 435 Smith V. Commonwealth, 21 Gratt. (Va.) 809, 811 403 Smith V. State, 142 Ala. 4 259 Smith V. State, 42 Fla. 236 106 Smith V. State, 29 Fla. 408 273, 297 Smitn V. State, 1 Kan. 365, 389 190 Smith V. State, 61 Miss. 754 126 Smith V. State (Neb.), 100 N. W. 806 190, 381 Smith V. State, 32 Neb. 105 408 Smith V. State, 21 Neb. 552 246 Smith V. State, 4 Neb. 277 96 Smith V. State, 8 Ohio, 294 215 Smith V. State, 9 Humph. (Tenn. ) 9 164 Smith V. State, 1 Humph. (Tenn.) 396, 398 4 Smith V. State, 35 Tex. 738 251 Smith V. State, 34 Tex. 612 372 Smith V. State (Tex. Cr.), 30 S. W. 236 363 Smith V. State, 31 Tex. Cr. 14 329 Smith V. State, 26 Tex. App. 577 354 Smith V. State, 25 Tex. App. 454 296 Smith V. State, 19 Tex. App. 95 74 Smith V. Territory, 14 Okla. 162 204 Snell V. People, 29 111. App. 470 377 Snow V. State, 6 Tex. App. 284 203 Someville v. State, 6 Tex. App. 433 205 Sothman v. State, 66 Neb. 302 245 Southworth v. State, 5 Conn. 325 437 Sparrenberger v. State, 53 Ala. 481 103, 124, 126, 13.'> Sparks v. Commonwealth, 9 Pa. St. 354 43!) Sparks v. State, 35 Tex. 349 200 Spear v. State, 120 Ala. 351 133 Spears v. Commonwealth, 17 Grat. 570 404, 406 Speirs v. Parker, 1 Term R. 145 278 Spicer v. State, 69 Ala. 159 .^ 236 Table of Cases. lix SECTION Springer v. State, 19 Ind. 180 127, 128 Sprouse v. Commonwealth, 51 Va. 376 392 Staaden v. People, 82 111. 432 364 Staeger v. Commonwealth, 103 Pa. St. 469 283 Stallinga v. State, 29 Tex. App. 230 351 Stallworth v. State (Ala. 1906), 41 So. 184 219 Stamper v. Commonwealth, 102 Ky. 33 315 Stanchcliff v. United States (Ind. Terr. 1904), 82 S. W. 882 382, 389 Stanfield v. State, 43 Tex. Cr. 10 207 Stanford v. State, 76 Miss. 257 133 Stanglein v. State, 17 Ohio St. 453 390 Stanley v. State, 88 Ala. 154 133 Starling v. Staye (Miss. 1907) , 43 So. 952 434 State V. Abbey, 29 Vt. 60 390 State V. Abbott, 31 N. H. 434 390 State V. Abrisch, 41 Minn. 41 371 State V. Absence, 4 Port. (Ala.) 397 274, 292, 380 State V. Ackerman, 51 La. Ann. 1213 323 State V. Aekless, 8 Wash. 462 263 State V. Adam, 105 La. 737 423 State V. Adams, 108 Mo. 208 371, 421 State V. Adams, 64 N. H. 440 366 State V. Adams Express Co., 119 Fed. 240 285 State V. Addington, 1 Bailey (8. C), 310 351 State V. Agnew, 52 Ark. 275 445 State V. Ah Jim, 9 Mont. 166 52 State V. Alexander, 113 La. 747 371 State V. Allen, 12 Ind. App. 528 244 State V. Allen, 32 Iowa, 248 383, 385 State V. Alsop, 4 Ind. 141 301 State V. Ames, 10 Mo. 743 301 State V. Ames, 64 Me. 386 293 State V. Amidon, 58 Vt. 524 434 State V. Amos, 101 Tenn. 350 448 State V. Ancoin, 50 La. Ann. 49 113 State V. Anderson, 30 La. Ann. 557 39 State V. Anderson, 3 Nev. 254 288, 289 State V. Anderson, 40 N. J. L. 224 16 State V. Anderson, 59 S. C. 229 311 State V. Anderson, 3 Eich. L. (S. C.) 172 355, 399 State V. Andrews, 84 Iowa, 88 333 State V. Andrews, 17 Me. 103 396 State V. Angel, 7 Ired. L. (N. C.) 27 354 State V. Ansaleme, 15 Iowa, 44 77, 289 State V. Anselm, 43 La. Ann. 195 312 State V. Anthony, 1 McC. L. (S. C.) 285 184, 431 State V. Appleby, 66 Kan. 351 '. 422 State V. Armstrong, 4 Minn. 335 305 State V. Armstrong, 106 Mo. 395, 16 S. W. 604 421 State V. Assman, 46 S. C. 554 301 State V. Atkinson, 40 S. C. 363 428 State V. Atchison, 3 Lea (Tenn.), 729, 731 426 State V. Auburn, 86 Me. 276 322 State V. Austin, 113 Mo. 538 366, 370 State V. Ayer, 23 N. H. 301 406 State V. Axt, 6 Iowa, 511 133 State V. Bach, 25 Mo. App. 554 392 State V. Bacon, 41 Vt. 526 2S6 Ix Table of Cases. SECTION State V. Bacon, 7 Vt. 219, 222 241, 296, 312 State V. Baden, 42 La. Ann. 295 348 State V. Bailey, 21 Mo. 484 318 State V. Bailey, 31 N. H. 521 264 State V. Baker, 34 Me. 52 309, 313, 322 State V. Baker, 50 Me. 45 318 State V. Barker, 18 Vt. 195, 197 390 State V. Baldwin, 79 Iowa, 714 402 State V. Baldy, 17 Iowa, 39 288 State V. Ball, 27 Neb. 601 264 State V. Ball, 30 W. Va. 382 316 State V. Ballard, 6 N. C. 186 273 State V. Ballard, 2 Murph. (N. C.) 186 243 State V. Bangness, 106 Iowa, 107 371 State V. Banks, 40 La. Ann. 736 140 State V. Banton, 4 La. Ann. 31 392 State V. Barber, 113 N. C. 711 402 State V. Barker, 107 N. C. 913 3, 73 State V. Barkman, 7 Ark. 387 107 State V. Bamett, 3 Kan. 259 37, 310 State V. Barr, 30 Mo. App. 498 310, 381 State V. Barr, 61 N. J. L. 131 348 State V. Bartlett, 47 Me. 388 309 State V. Bartlett, 128 Iowa, 518 356 State V. Bartlett, 11 Vt. 650 133 State V. Baskett, 52 Mo. App. 389 374 State V. Batson, 108 La. 479 392, 418 State V. Bauer, 1 Ohio Dec. 199 259 State V. Baughman, 111 Iowa, 71 85 State V. Beach, 147 Ind. 47 371 State V. Bean, 36 N. H. 122 89 State V. Season, 40 N. H. 367 187, 188 State V. Beatty, 79 Me. 314 309, 322 State V. Beatty, 61 N. C. 52 433 State V. Beckroge, 49 S. C. 484 413 State V. Beckwith, 1 Stew. 318 309 State V. Beebe, 115 Iowa, 128 371, 382 State V. Behan, 113 La. 754 412 State V. Bell, 27 Md. 675 402 State V. Bell, 159 Mo. 479 128, 140, 143 State V. Bell, 25 N. C. 506 301 State V. Bell, 3 Ired. L. (N. C.) 506 175 State V. Beneke, 9 Iowa, 203 390 State V. Bennett, 45 La. Ann. 54 93, 132 State V. Bennett, 102 Mo. 356 176 State V. Benson, 38 Ind. 60 13 State V. Bentz, 11 Mo. 27 427 State V. Berlin, 42 Mo. 572 17 State V. Berry, 9 N. J. L. 374 438 State V. Best, 108 N. C. 747 230 State V. Beswick, 13 R. L. 211 25 State V. Billings, 77 Iowa, 417 75 State V. Billings, 140 Mo. 193 Ill State V. Bishop, 7 Conn. 181, 185 1-i State V. Bishop, 15 Me. 122 229 State V. Bishop, 98 N. C. 773 348, 351 State V. Bittlnger, 55 Mo. 596, 599 14 Table of Cases, Ixi SKCTIOIT State V. Blackwell, 3 Ind. 529 318 State V. Blair, 92 Iowa, 28, BO N. W. 486 400 State V. Blakeley, 43 Kan. 250 404, 405 State V. Blakely, 83 Minn. 432 354, 35S State V. Blakely, 83 Mo. 357 161 State V. Blakeney, 96 Md. 711 397, 398 State V. Blakeney, 33 S. C. 117 301 State V. Blakesley, 39 Kan. 152 371 State V. Blanchard, 74 Iowa, 628 311 State V. Blankenship, 21 Mo. 504 225 State V. Bledsoe, 47 Ark. 233 421 State V. Blizzard, 70 Md. 385 351 State V. Bloor, 20 Mont. 574 200, 201, 267 State V. Bolt, 7 Blackf. (Ind.) 19 76 State V. Bonkright, 55 S. C. 353 397 State V. Bordeaux, 93 N. C. 560 128, 143 State V. Bosworth, 54 Conn. 1 4*7 State V. Bowles, 70 Kan. 821 448 State V. Bowman, 103 Ind. 69 446 State V. Bowman, 78 Iowa, 519 221 State V. Bowman, 73 la. 110 68, 70 State V. Bowman, 43 S. C. 108 90 State V. Boyd, 2 Hill's L. (S. C.) 288 120 State V. Brady, 16 R. I. 51 395 State V. Brady, 107 N. C. 826 281, 294 State V. Brady, 14 Vt. 353 178 State V. Bragg, 51 Mo. App. 334 374 State V. Brant, 41 Iowa, 593 76 State V. Breeht, 41 Minn. 50 219 State V. Brennan, 2 S. D. 384 176 State V. Brew, 4 Wash. 95, 29 Pac. 762 350 State V. Brewer (Me. 1906), 66 Atl. 642 278 State V. Brewster, 7 Vt. 118 92 State V. Brickellm, 8 N. C. 354 149 State V. Bridge, 24 Mo. 353 392, 423 State V. Bright, 105 La. Ann. 341 365 State V. Briley, 8 Porf. (Ala.) 472 371 State V. Brisbane, 2 Bay. (S. C.) 451 150 State V. Brisco, 80 Mo. 643 47 State V. Brookhouse, 10 Wash. 87 348, 382 State V. Brooks, 92 Mo. 542, 571 92 State V. Broughton, 71 Miss. 90 277 State V. Brown, 4 Port. (Ala.) 413 372 State V. Brown, 63 Kan. 262 133 State V. Brown, 41 La. Ann. 771 359 State V. Brown, 41 La. Ann. 345 381 State V. Brown (Miss.) , 28 So. 752 392 State V. Brown, 159 Mo. 646 301, 307 State V. Brown, 115 Mo. 409 .' 381 State V. Brown, 8 Mo. 210 372 State V. Brown, 8 Nev. 208 299 State V. Brown, 127 N. C. 562 97 State V. Brown, 113 N. C. 645 350 State V. Brown, 81 N. C. 568 117 State V. Brown, 7 N. C. 224 241 State V. Brown (N. D. 1905), 104 N. W. 1112 322 State V. Brown, 62 S. C. 374 87 State V. Brown, 24 S. C. 224 309 Mi Table of Cases. SECTION State V. Brown, 2 Sperr's L. (S. C.) 129 335, 336 State V. Brown, 8 Humph. 89 284 State V. Brown, 31 Vt. 602 **" State V. Brown, 27 Vt. 619 345 State V. Brown, 7 Wash. 10 374 State V. Brownlee, 84 Iowa, 473 123 State V. Bryan, 112 N. C. 848 33.T State V. Buford, 52 La. Ann. 539 400 State V. Bullock, 54 S. C. 300 90 State V. Bunger, 14 La. Ann. 461 88 State V. Buralli, 27 Nev. 41 175, 297 State V. Burehard, 4 S. D. 548 237, 250, 296 State V. Burgess, 40 Me. 594 399 State V. Burgess, 24 Mo. 381 439 State V. Burke, 38 Me. 574 394 State V. Burke, 108 N. C. 750 207 State V. Bums, 99 Mo. 471 207 State V. Bushey, 84 Me. 459 241 State V. Buntin, 123 Ind. 124 441 State V. Buscoe, 80 Mo. 643 5 State V. Bush, 45 Kan. 138 327 State V. Butcher, 1 S. D. 401 241 State V. Butler, 17 Vt. 145, 149 143, 390 State V. Cadle, 19 Ark. 613 430, 433, 435 State V. Cady, 47 Conn. 44 371 State V. Calne, 105 N. W. 1018 (Iowa) 399 State V. Caldwell, 112 N. C. 854 333 State V. Calhoun, 18 N. C. 374 445 State V. Callahan, 124 Ind. 364, 24 N. E. 732 262, 339 State V. Camhron (S. D. 1905), 105 N. W. 241 76 State V. Cameron, 86 Me. 196 355 State V. Cameron, 40 Vt. 555 416 State V. Campbell, 70 Kan. 899, 900 448 State V. Campbell, 29 Tex. 44, 46 372 State V. Canley, 39 Me. 78 149 State V. Canney, 19 N. H. 135 256, 267 State V. Cannon, 29 Mo. 330 58 State V. Cantrell, 21 Ark. 127 70 State v. Capers, 6 La. Ann. 268 301 State V. Capp, 15 N. H. 212 267 State V. Carlson, 39 Oreg. 15 304 State V. Carpenter, 54 VI. 551 280 State V. Carpenter, 20 Vt. 9 336 State V. Carr, 142 Mo. 607, 610 1 State V. Carr, 6 Oreg. 133 382 State V. Carrings, 54 Minn. 359 421 State V. Carrington, 15 Utah, 480 400, 404, 406 State V. Carter, 48 Mo. 481 ' jg State V. Carver, 49 Me. 588 428 State V. Carver, 12 R. I. 285 259 State V. Casados, 1 Nott. & M. (S. C.) 91 374 State V. Casavant, 64 Vt. 405 35I 365 State V. Caspary, 1 1 Rich. L. ( S. C. ) 356 ' 2O6 State V. Cassel, 2 Harr. & G. (Md.) 407 438 State V. Cassity, 1 Rich. L. (S. C.) 90 266 State V. Castle (N. J. L. 1907), 66 Atl. 1059 42 State V. Melvin, 166 Mo. 565 107, 110 State V. Merrill, 44 N. H. 624 416 State V. Merten8, 14 Mo. 94 445 State V. Messenger, 58 N. H. 348 250 State V. Messenger, 63 Ohio St. 398 190 State V. Meyer, 1 Spears ( S. C. ) , 305 15, 392 State v. Meyers, 99 Mo. 107 264 State V. Meyers, 68 Mo. 266 316 State V. Meyers, 9 Wash. 8 301 State V. Meysenburg, 171 Mo. 1 279, 374 State V. Michel, 111 La. 434 106, 115 State V. Middlesex & Somerset Traction Co., 67 N. J. L. 14 400, 420 State V. Millain, 3 Nev. 409, 439 1, 2 State V. Miller, 24 Conn. 522 390 State V. Miller, 98 Ind. 70 381 State V. Miller, 6 Ind. App. 653 263 State V. Miller, 95 Iowa, 368 442: State V. Miller, 43 Neb. 860 37 State V. Miller, 190 Mo. 449 332 State V. Mills, 14 Tex. 98 378 State V. Mitchell, 25 Mo. 420 199 State V. Mitchell, 47 W. Va. 789 372 State V. Mitchell, 1 Bay (S. C), 267 13 State V. Mjelde, 29 Mont. 490 416 State V. Mohr, 55 Mo. App. 329 381 State V. Molier, 12 N. C. 263 204 State V. Montgomery, 109 Mo. 645, 19 S. W. 221 400 State V. Mooney, 49 W. Va. 712 88 State V. Moore, 1 Ind. 548 177, 181 State V. Moore, 86 Minn. 422 HC State V. Moore, 61 Mo. 276 . 382 State V. Moore, 121 Mo. 514, 26 S. W. 345 405 State V. Moore, 14 N. H. 451 229 State V. Moore, 104 N. C. 743 .' 295 State V. Moore, 24 S. C. 150 153, 155, 156, 164, 176 State V. Morgan, 35 La. Ann. 293 202 State V. Morgan, 112 Mo. 202 .45 46 48 237 State V. Morgan, 133 N. C. 743 V .'...'....' 398 State V. Morgan, 1 Wins No. 1246 353 State V. Morris, 104 N. C. 837, 839 1 2 State V. Morris, 43 Tex. 372 .' 193 State V. Morrison, 95 N. C. 562 394 Table of Cases. Ixx^ SECTION state V. Morrison, 85 N. C. 561 402 State V. Morse, 1 G. Greene (Iowa), 503 373 State V. Morton, 27 Vt. 310 399, 412 State V. Moaeli, 49 Kan. 142 350 State V. Mosely, 42 La. Ann. 975, 978 207 State V. Moser, 33 Ark. 140 389 State V. Moses, 7 Blackf. (Ind.) 244 438 State V. Moses, 2 Dev. (N. C.) 452 240' State V. Mowry, 21 R. I. 376, 382 149, 158, 176 State V. Moxley, 102 Mo. 374 448 State V. Mueller, 85 Wis. 203 381 State V. Mullen, 14 La. Ann. 570 45 State V. Munch, 22 Minn. 67, 518 185, 289 State V. Munger, 15 Vt. 291 322 State V. Muntz, 3 Kan. 383 301 State V. Murphy, 9 Port. (Ala.) 487 152, 174, 180 State V. Murphy, 47 Mo. 274 445, 447 State V. Murphy, 49 Mo. App. 270 371 State V. Murphy, 101 N. C. 679 278 State V. Murphy, 17 R. I. 698 404, 400 State V. Murphy, 55 Vt. 547 235 State V. Muzingo, Meigs (Tenn.), 112 129, 439 State V. Myers, 85 Tenn. 203 204, 205, 449 State V. Nail, 19 Ark. 563 423 State V. Naramore, 58 N. H. 273 382 State V. Negro Jesse Evans, 7 Gill & J. (Md.) 290 435 State V. Nelson, 29 Me. 329, 334. .' 229, 394 State V. Nelson, 79 Minn. 388 245 State V. Nelson, 14 Rich. L. 169, 172 404, 405, 413 State V. New (Ind. App. 1905) , 76 N. E. 181 371 State V. New, 36 Ind. App. 521 244 State V. Newfane, 12 Vt. 422 83, 352 State V. Newsom, 2 Jones L. 173 311 State V. Newsom, 13 W. Va. 859 260 State V. Newton, 30 La. Ann. 1253 39 State V. Newton, 29 Wash. 373 407 State V. Nichols, 12 Rich. L. (S. C.) 673 423 State V. Niers, 87 Iowa, 723 278, 298 State V. Nixon, 18 Vt. 70 149, 177, 298 State V. Noakes, 70 Vt. 247 45, 48, 295 State V. Noble, 15 Me. 476 264 State V. Nolan, 15 R. I. 529 30- State V. Noland, 111 Mo. 473 326, 34S State V. Nordstrom, 7 Wash. 506 37 State V. Norman, 13 N. C. 222 278 State V. Norton, 23 N. J. L. 33 174 State V. Norton, 28 S. C. 576 413 State V. Norton, 45 Vt. 258 390. State V. Nowell, 60 N. H. 799 428 State V. Nutwell, 1 Gill, 54 250 State V. O'Bonmon, 1 Bailey (S. C.) 664 374 State V. O'Bannon, 1 Bailey, 144 259 State V. O'Brein, 18 R. I. 105 425, 439 State V. O'Donnell, 81 Me. 271 309, 319 State V. Ohrimacht, 10 La. Ann. 198 130. State V. O'Keefe, 41 Vt. 691 313 State V. Oliver, 20 Mont. 318 365 State V. ONeil, 51 Kan. 65 29.3- Ixxvi Table of Cases, SECTION -State V. Osgood, 85 Me. 288 371 State V. Owen, 1 Murph. 452 333 State V. Owens, 10 Eich. L. (S. C.) 169 364 State V. Packard, 4 Oreg. 157 372 State V. Paige, 78 Vt. 286 391 State V. Paine, 1 Ind. 163 175, 324 State V. Palmer, 40 Kan. 474 251 State V. Palmer, 35 Me. 9 392, 421 State V. Palmer, 4 Mo. 453 399 State V. Parker, 42 La. Ann. 972 399, 409 State V. Parker, 43 N. H. 83 190, 191 State V. Parker, 5 Lea (Tenn.) , 568 323 State V. Parks, 61 N. J. L. 438 168, 203 State V. Parmer, 35 Me. 13 422 State V. Pate, 67 Mo. 488 96 State V. Paterson, 61 Minn. 73 96 State V. Patterson, 6 Kan. 677 378 State V. Patterson, 116 Ind. 45 323 State V. Patterson, 7 Ired. (N. C.) L. 70 359 State V. Patterson, 2 Ired. L. 346 357 State V. Paul, 81 Iowa, 596 353 State V. Paul, 69 Me. 215 241, 245, 246 State T. Peak, 130 N. C. 711 240 State V. Pearce, 14 Fla. 153 180 State V. Pearce, Peck. 66 348 State V. Peel Splint Coal Co., 36 W. Va. 802, 809 24 •State V. Peirce, 43 N. H. 273 372, 376 State V. Pellerin, 118 La. 547 381 State V. Pemberton, 30 Mo. 376 429, 430, 434 State V. Pennell, 56 Iowa, 29 201 State V. Perkins, 49 La. Ann. 310 348 State V. Perkins, 82 N. C. 679 435 State V. Perley, 86 Me. 427 356 State V. Perry, 117 Iowa, 463 314 State V. Perry, 2 Bailey L. (S. C.) 17 .245, 247 State V. Peters, 51 N. J. L. 244 ' 390 State V. Peters, 107 N. C. 876 ; '.'s'lO^ 323 State V. Peterson, 41 La. Ann. 85 36g State V. Peterson, 2 La. Ann. 921 160 State V. Peterson, 61 Minn. 73 IO3 State V. Phelps, 65 N. C. 450 182 213 State V. Phelps, 11 Vt. 116 .' 437 State V. Pierce, 77 Iowa, 245 ^ ^ ] ' 263 State V. Pierre, 39 La. Ann. 915 233 State V. Pile, 5 Ala. 72 .....\ ... 428 State V. Pipes, 65 Kan. 543 235 State V. Pirlot, 19 R. I. 695 242 State V. Pischel, 16 Neb. 490 iO% State V. Pittman, 76 Mo. 56 \\ 332 State V. Pitts, 39 La. Ann. 914 128 State V. Plummer, 55 Mo. App. 288 I33 State V. Plunkett, 18 N. .J. L. 5 '.'. I5 State V. Pool, 106 N. C. 698 390 State V. Pool, 13 N. C. 202 ' ^ '..!.!..... 1 438 State V. Porter, 97 Iowa, 450 353 State V. Porter, 26 Mo. 201 404 405 State V. Posey, 7 Rich. L. (S. C.) 491 ' 414 ■State V. Potter, 28 Iowa, 554 241 246 280 294 Table of Cases. Ixxvii SECTION State V. Potts, 78 Iowa, 656 411 State V. Potts, 9 N. J. L. 26 340 State V. Powell, 103 N. C. 424 351 State V. Powell, 28 Tex. 626 246 State V. Powell, 24 Tex. 135 445, 446 State V. Powers, 25 Conn. 48 .' 278, 390 State V. Powers, 59 S. C. 200, 213 431 State V. Pratt, 98 Mo. 482 323 State V. Pratt, 14 N. H. 456 190, 310, 319, 321, 324 State V. Pratt, 44 Tex. 93 432 State V. Pratt, 54 Vt. 484 240 State V. Prelby, 21 Wis. 204 392 State V. Preston, 4 Ida. 215 371 State V. Price, 71 N. J. L. 249, 58 Atl. 1015 390 State V. Prince, 42 La. Ann. 817 355 State V. Price, 11 N. J. L. 203 160, 171, 382 State V. Prior, 53 Kan. 657, 37 Pac. 169 409 State V. Pritchard, 107 N. C. 921 241 State V. Privitt, 175 Mo. 207, 225 198 State V. Pugsley, 75 Iowa, 742 298 State V. Quarles (Idaho, 1907 ) , 89 Pac. 636 133 State V. Queen, 91 N. C. 659, 661 32 State V. Quick, 72 N. C. 241 23 State V. Quinn, 40 Mo. App. 627 285 State V. Ragsdale, 59 Mo. App. 590 241 State V. Eaiford, 7 Port. 101 309 State V. Ramsey, 52 Mo. App. 668 371 State V. Eand, 33 N. H. 216, 227 353 State V. Handle, 41 Tex. 292 420 State V. Eansberger, 42 Mo. App. 469 8 State V. Eapley, 60 Ark. 13 421 State V. Eathbone, 8 Ida. 161 285, 286 State V. Eaul, 81 Iowa, 596 .153 State V. Ratts, 63 N. C. 503 436 State V. Rawlstone, 3 Sneed (Tenn.) , 107 423 State V. Eay, 63 N. H. 406 25 State V. Eaymond, 54 Mo. App. 425 208, 241 State V. Eechnitz, 20 Mont. 488, 52 Pac. 264 333 State v. Record, 56 Ind. 107 274 State V. Eector, 126 Mo. 329 207, 208, 241, 246, 333, 426 State V. Eeed, 35 Me. 489 195, 309 State V. Reed, 67 Me. 127 447 State V. Reeves, 97 Mo. 668 30 State V. Reid, 20 Iowa, 413 93, 301, 318 State V. Reinhart, 26 Oreg. 466 118 State V. Renfrew, 111 Mo. 585 120 State V. Reno, 41 Ka. 674, 679 285 State V. Reyelts, 74 Iowa, 499 388 State V. Rhodes, 2 Ind. 321 207 State V. Richard, 50 La. Ann. 210 59 State V. Richmond, 42 La. Ann. 229, 7 So. 459 360 State V. Richmond, 186 Mo. 71 405 State V. Rickey, 10 N. J. L. 83 85 State V. RiflFe, 10 W. Va. 794 371, 381 State V. Rigg, 10 Nev. 284 288 State V- Riley, 100 Mo. 493 358 State V. Rivers, 58 Iowa, 102 147 State V. Roach, 2 Hayw. 352 309 Ixxviii Table of Cases. SECTIOIT State V. Kobbins, 66 Me. 324 330 State V. Roberts, 34 Me. 320, 321 294 State V. Roberts, 26 Me. 263 301 State V. Robbins, 66 Me. 324, 328 330 State V. Robbins, 123 N. C. 730 197 State V. Robbins, 1 Strohk. (S. C.) 355 438 State V. Robinson, 55 Ark. 439 326 State V. Robinson, 85 Me. 147 151, 159 State V. Robinson, 16 N. J. L. 507 335, 344 State V. Robinson, 27 S. C. 615, 618 431 State V. Rock, 20 Utah, 38 40, 44 State V. Rockafellow, 6 N. J. L. 332, 341 68, 81, 83, 181 State V. Rockwell, 18 Mo. App. 395 8, 47 State V. Rogers, 37 Mo. 367 202 State V. Rohfrischt, 12 La. Ann. 382 444 State V. Rollins, 8 N. H. 550 229 State V. RoUo, 3 Renn. (Del.) 421 381 State V. Rook, 61 Kan. 382 316 State V. Rook, 42 Kan. 419 355 State V. Rosenblatt, 185 Mo. 114 374 State V. Ross, 4 Ind. 541 335 State V. Rowe, 43 Vt. 265 28.1 State V. Rowlen, 114 Me. 626 . .• 327 State V. Ruby, 61 Iowa, 86 447 State V. Ruby, 68 Me. 543 395, 42S State V. Ruckman, 8 N. H. 203 437 State V. Rudolph, 187 Mo. 67 37, 56 State V. Rufe, 41 Tex. 33 27s State V. Russell, 2 La. Ann. 604 18! State V. Rust, 8 Blackf. 195 310 State V. Rust, 35 N. H. 438 371, 395 State V. Ryan, 68 Conn. 512 282, 283 State V. Ryan, 30 Mo. App. 159 374 State V. S. A. L., 77 Wis. 467 301 State V. Sales, 30 La. Ann. 916 257 State V. Salts, 77 Iowa, 193 75, 301 State V. Sam, 2 Dev. L. 567 310 State V. Sanders, 158 Mo. 610 181 State V. Sandy, 25 N. C. 570 438 State V. Satterwhite, 52 La. Ann. 499 352, 365 State V. Scammons, 95 Ind. 22 323 State V. Schelling, 14 Iowa, 455 429 State V. Schemaker, 4 Ind. 100 278 State V. Schieler, 4 Ida. 120 88 State V. Schloss, 93 Mo. 361 432, 434 State V. Schmidt, 34 Kan. 399 123 State V. Schnelle, 24 W. Va. 767, 774 1 State V. Schricker^ 29 Mo. 265 236 State V. Schultz, 57 Ind. 19 324 State V. Scott, 48 La. Ann. 293 399, 433, 434 State V. Scott, 72 N. C. 461 333 State V. Scott, 15 S. C. 434 413 State V. Scripture, 42 N. H. 485 363 State V. Seal, 47 Mo. App. 603 390 State V. Seamons, 1 Greene, 418 .- 309 State V. Sears, 61 N. C. (Phillips) L. 146 10 State V. Seary, 3 Stew. (Ala.) 123, 131 24i, 246, 299 State V. Seay, 3 Stew. (Ala. ) 123 241 299 Table of Cases. Ixxix SECTION State V. Sebecea, 76 Mo. 55 13 State V. Security Bank, 2 S. D. 538 106 State V. See, 4 Wash. 344 253 State V. Seeger, 65 Kan. 711 382 State V. Seeley, 65 Kan. 185 373 State V. Segermond, 40 Kan. 107 349, 350 State V. Sexton, 3 Hawks. 184 319 State V. Shade, 115 N. C. 757 237, 281 State V. Shank, 79 Iowa, 47 145 State V. Sharp, 106 Mo. 106 350 State V. Sharpe, 119 Mo. App. 386 128 State V. Sharp, 110 N. C. 604 68 State V. Shaw, 22 Oreg. 287 389 State V. Shawbeck, 7 Iowa, 322 20 State V. Shelton, 90 Tenn. 539 348 State V. Sherwood, 41 La. Ann. 316 339 State V. Shields, 89 Mo. 259 361 State V. Shippey, 10 Minn. 223 445 State V. Shirer, 20 S. C. 392 250, 270 State V. Shoemaker, 4 Ind. 100 278 State V. Shores, 31 W. Va. 491, 492 402, 417, 442 State V. Shorten, 93 Mo. 123 5 State V. Shull, 3 Head. (Tenn.) 42 301, 307 State V. Shwarty, 25 Tex. 764 250 State V. Sills, 56 Mo. App. 408 374 State V. Simas, 25 Nev. 432 72, 81 State V. Simmons, 96 U. S. 360 -.277 State V. Sunley, 98 Mo. 605 61, 63, 91 State V. Simpson (Ind. 1906) , 76 N. E. 544 230 State V. Simpson, 45 Me. 608 405 State V. Simpson, 67 Miss. 647 145 State V. Singer (Me. 1906), 64 Atl. 586 259 State V. Singer, 10 Me. 299 250 State V. Skidmore, 109 N. C. 797 109 State V. Skinner, 34 Kan. 256 72, 123 State V. Slagle, 82 N. C. 653 334 State V. Sloan, 65 Wis. 647 45 State V. Slocum, 8 Blackf. 315 301 State V. Slogle, 82 N. C. 653 398 State V. Smalls, 11 Shand. (S. C.) 262 399 State V. Smith, 12 Ark. 622 221 State V. Smith, 88 Iowa, 178 319 State V. Smith, 88 Iowa, 1 348 State V. Smith, 46 Iowa, 670 371 State V. Smith, 41 La. Ann. 791 263, 293, 409 State V. Smith, 21 La. Ann. 574 37 State V. Smith, 61 Me. 388 392 State V. Smith, 5 Harr. (Md.) 490 306 State V. Smith, 71 Mo. 45 106 State V. Smith, 24 Mo. App. 413 37I State V. Sniith, 2 N. D. 515, 52 N. W. 320 405 State V. Smith (Tenn. 1907), 105 S. W. 68 381 State V. Smith, Peck. (Tenn. ) 165 150 State V. Smith, 61 Vt. 346 390 State V. Smith, 17 R. I. 371 242, 327, 345 State V. Smith, 24 Tex. 285 390 State V. Smith, 8 Rich. L. (S. C.) 460 366 369 State V. Smith, 31 Wash. 245 934 Ixxx Table of Cases. SECTION State V. Smith, 24 W. Va. 815 394, 419 State V. Smythe, 33 Tex. 546 289 State V. Snowman, 94 Me. 99 371 State V. Snyder, 41 Ark. 226 389 State V. Snyder, 182 Mo. 462 315, 316 State V. Society for Establishing Useful Manufactures, 42 N. J. L. 504. . 149, 176 State V. So Ho Ge, 1 Wash. 275 326 State V. Somerville, 21 Me. 19 299 State V. Soragon, 40 Vt. 450 435 State V. Souier, 107 La. Ann. 794 371 State T. Soule, 20 Me. 19 433 State V. Sparks, 78 Ind. 166 334 State V. Sparrow, 52 Mo. App. 374 390 State V. Speight, 69 N. C. 72 405 State V. Sprinkle, 65 N. C. 463 151, 157 State V. Squire, 10 N. H. 558 439, 445 State V. Staaw, 42 N. H. 393 437 State V. Stacy, 103 Mo. 11 257 State V. Stanley, 42 La. Ann. 978 415 State V. Stanton, 23 N. C. 424 371, 372 State V. Starling, 15 Rich. L. (S. C.) 120, 123 1, 5 State V. Starnes, 97 N. C. 423 128 State V. Starr, 52 La. Ann. 610 128 State V. Staton, 88 N. C. 654 334 State V. Stedman, 7 Port. (Ala.) 495 380, 381, 446 State V. Stein, 48 Minn. 466 296 State V. Stein, 2 Mo. 667 17 State V. Steptoe, 65 Mo. 640 424 State V. Sterns, 28 Kan. 154 305 State V. Sterritt, 19 Oreg. 352 351 State V. Stewart, 47 La. Ann. 410 106 State V. Stewart, 47 Mo. 382 13 State V. Stewart, 26 S. C. 125 324 State V. Stewart, 7 W. Va. 731 89 State V. Stimpson, 78 Vt. 124 25, 37 State V. Stinson, 17 Me. 154 407 State V. Stouderman, 6 La. Ann. 286 40!) State V. Strayer, 58 W. Va. 676 147 State V. Strickland, 10 S. C. 191 434 State V. Stroud, 99 Iowa, 16 373, 435 State V. Stubbs, 108 N. C. 774 381 State V. SufFerin, 6 Wash. 109 326 State V. Sultan, 142 N. 0. 569 „ 440, 442 State V. Sutler, 47 Minn. 483 273 State V. Sutton, 4 Gill (Md.), 494 410 State V. Sutton, 24 Mo. 377 390 State V. Sutton, 5 N. C. 281 160 State V. Swaim, 97 N. C. 462 310 State V. Swan (Utah, 1906), 88 Pac. 12 371, 373 State V. Sweeney, 56 Mo. App. 409 351 State V. Switzer, 63 Vt. 604 244, 326, 377 State V. Symonds, 57 Maine, 148 372 State V. Symonds, 36 Me. 128 68, 70, 81, 135 State V. Taggart, 38 Me. 298 446 State V. Taunt, 16 Minn. 109 270 State V. Taylor, 44 La. Ann. 967 ., 371 State V. Taylor, 126 Mo. 531 257 State V. Teahan, 50 Conn. 92 401 Table of Cases. Ixxxi SECTIOIT State V. Temple, 38 Vt. 37 256, 40S State V. Terry, 109 Mo. 601 46 State V. Terry, 106 Mo. 209 381 State V. Terry, 30 Mo. 368 59, 333 State V. Thacher Coal & Coke Co., 49 W. Va. 140 439 State V. Thaek, 48 Kan. 140 355 State V. Thomas, 29 La. Ann. 601 380 State V. Thomas, 97 Iowa, 396 14.5 State V. Thomas, 61 Ohio St. 444 61 State V. Thomas (S. C. 1906), 55 S. E. 893 104- State V. Thomas, 8 Rich. L. (S. C.) 295 108 State V. Thompson, 10 Mont. 549 314 State V. Thompson, 20 N. H. 250 23,'J State V. Thompson, 2 Strobh. (S. C.) 12 414 State V. Thompson, Cheves L. (S. 0.) 31 233 State V. Thompson, 4 S. D. 95 183, 184 State V. Thornton, 136 N. C. 610 51 State V. Tibbetts, 86 Me. 189 332 State V. TiiTany (Wash. 1906), 87 Pac. 932 371 State V. Timmens, 4 Minn. 325 357 State V. Tingler, 32 W. Va. 546 359 State V. Tolever, 27 N. C. 452 301 State V. Tolla, 72 N. J. L. 515, 62 Atl. 675 357 State V. Toney, 13 Tex. 74 226 State V. Townsend, 7 Wash. 462 395 State V. Traeey, 12 R. I. 216 285 State V. Trisler, 49 Ohio St. 583 354 State V. Trolson, 21 Nev. 419 371 State V. Trueblood, 25 Ind. App. 437, 440 245, 274, 275 State V. Trusty, 122 Iowa, 82 399, 404, 406 State V. Tucker, 20 Iowa, 508 126 State V. Tucker, 36 Oreg. 291, 295 26, 51 State V. Tully, 31 Mont. 365 304, 308 State V. Turley, 142 Mo. 403 333 State V. Turlington, 102 Mo. 642 , 202 State V. Turner, 114 Iowa, 426 442 State V. Turner, 25 La. Ann. 573 210 State V. Turner, 106 N. C. 691 390 State V. Turney, 41 Kan. 115 263 State V. Tyler, 46 La. Ann. 1269 ^77 State V. Tyrrell, 98 Mo. 354 353 State V. Ullman, 5 Minn. 13 326 State V. Ulrich, 96 Mo. App. 689 280, 434 State V. Underwood, 49 Me. 185 299 State V. Upchurch, 9 Ired. L. (U. C.) 454 334 State V. Valsin, 47 La. Ann. 115 184 State V. Vandenburg, 159 Mo. 230 387 State V. Vanderveer, 21 Tex. 335 218, 219 State V. Van Doran, 109 N. C. 864 259, 359, 382 State V. Van Haltschuherr, 72 Iowa, 541 395 State V. Van Pelt, 136 N. C. 633, 641 285, 287 State V. Van Wye, 136 Mo. 227 225, 241, 345, 371 State V. Varner, 115 N. C. 744 381 State V. Vashall, 4 Ind. 5S9 309 State V. Vermont Central R. Co., 28 Vt. 583 228 State V. Vermont R. R. Co., 27 Vt. 103 332 State V. Verrill, 54 Me. 408 241, 295 State V. Vill, 2 Brev. 262 381 Ixxxii Table of Cases. SECTtOJT State V. Vincent, 91 Md. 718 68, 6» State V. Vincent, 91 Mo. 662 128, 129, 182 State V. Vincent, 16 S. D. 62 358 State V. Wadsworth, 30 Conn. 55 425 State V. Wagner, 61 Me. 178 296, 298, 309 State V. Wagner, 118 Mo. 626 182, 416 State V. Wainwright, 60 Ark. 280 423 State V. Walcott, 21 Conn. 272 102 Stat« V. Walker, 24 Mo. App. 679 371 State V. Wallace, 94 N. C. 827 383 State V. Walker, 32 N. C. 234, 236 1 State V. Walters, 16 La. Ann. 400 311 State V. Ward, 61 Vt. 214 395 State V. Ward, 61 Vt. 153 402, 417 State V. Warner, 4 Ind. 604 306 State V. Warren, 77 Md. 122 416 State V. Warren, 109 Mo. 430, 91 S. W. 191 359 State V. Warren, 57 Mo. App. 502 276, 296 State V. Wash, 7 Iowa, 347 , 998 State V. Washington, 41 La. Ann. 778 381 State V. Washington, 13 S. C. 453 207 State V. Washington, 1 Bay (S. C), 120 431 State V. Watrous, 13 Iowa, 489 251, 318 State V. Watson, 41 La. Ann. 598 '. 381 State V. Weaver, 104 N. C. 758 129, 439 State V. Webb, 74 Mo. 333 106 State V. Webber, 7'^ Vt. 463 237, 246, 251 State v. Webb's River Improvement Co., 97 Me. 559 241, 278 State v. Webster, 30 Ark. 166, 170 216, 233 State V. Webster, 39 N. H. 96 88, 264 State V. Weil, 8.9 Ind. 286 392 State V. Weinhart, 73 Mo. 562 164 State V. Welch, 79 Me. 95 394 State V. Welker, 14 Mo. 398 309 State V. Wells, 46 Iowa, 662 37 State V. Wentworth, 65 Me. 234 367 State V. Wentworth, 37 N. H. 196 165, 308 State V. West, 42 Minn. 147 18 State V. West, 10 Tex. 553 326, 327, 371, 373 State V. Wester, 67 Kan. 810, 812 392, 400 State V. White, 129 Ind. 153 253 State V. White, 32 Iowa, 17 234 State V. Whitlock, 41 Ark. 403, 406 1, 267 State V. Whitt, 39 W. Va. 468, 19 S. E. 873 333 State V. Whittier, 21 Me. 341 353 State V. Wilbor, 1 R. I. 199 438 State V. Wilcox, 104 N. C. 847 87 State V. Wilder, 7 Blackf. 582 263 State V. Wilhite, 11 Humph. (Tenn.) 602 104, 105, 113 State V. Wilkeraon, 98 N. C. 696 348 State V. Williamson, 22 Utah, 248 371, 373, 390 State V. Williams, 103 Ind. 235 364 State V. Williams, 20 Iowa, 98 390 State V. Williams, 7 Rob. (La.) 252, 266 10, 14, 15 State V. Williams, 32 Minn. 537 341 State V. Williams, 191 Mo. 205 399 State V. Williams, 3 Nev. 409, 438 45 Table of Cases. Ixxxiil SECTION State V. Williams, 32 S. C. 123 374 State V. Williams, 2 Strobh. (S. C.) 474 371 State V. Williams, 2 McC. (S. C.) 301. 156, 158, 160, 162, 164, 174, 176, 414 State V. Williams, 14 Tex. 98 285, 372 State V. Williams, 13 Wash. 335 314 State V. Williamson, 22 Utah, 248 371, 381, 391 State V. Willis, 78 Me. 70 318, 400 State V. Willis, 3 Head (Tenn.), 157 128, 143 State V. Willitt, 78 Vt. 157, 62 Atl. 48 311 State -v. Wilmoth, 63 Iowa, 380 447 State V. Wilson, 30 Conn. 500 241, 354 State V. Wilson, 143 Mo. 344 392 State V. Wilson, 106 N. C. 718 263 State V. Wilson, 61 N. C. 237 424 State V. Wilson, 9 Wash. 218 326 State V. Wilson, 9 Wash. 16, 36 Pae. 967 359 State V. Wimberly, 3 McC. L 190 201, 202, 243, 250, 251 State V. Winebrewner, 67 Iowa, 230 93 State V. Wingfield, 115 Mo. 428 359 State V. Winstantdley, 151 Ind. 316 425, 428 State V. Winterly, 3 McC. L. (S. C.) 190 248 State V. Wise, 83 Iowa, 596 442 State V. Withee, 87 Me. 462 309 State V. Witherspoon, 115 Tenn. 138 250 State V. Witt, 39 Ark. 216 389 State V. Woodard, 38 S. C. 353 394, 405, 413, 423 State V. Woodman, 10 N. C. (3 Hawks) 384 319 State V. Woodrow, 58 W. Va. 527 126 State V. Woods, 31 La. Ann. 267 39 State V. Woods, 124 Mo. 412 326 SUte V Worrell, 12 Ala. 732 372 State V. Wren, 48 La. Ann. 803 316, 394 SUte V. Wright, 53 Me. 328 84 State V Wright, 16 R. I. 518 263 State V. Wright, 9 Wash. 96 339 State V. Wupperman, 13 Tex. 33 372, 381 State V. Yancy, 1 Treadw. Const. (S. C.) 237 170, 431 State V. Young, 104 La 201 404 State V. Yest, 21 W. Va 796 211 State V. Zimmerman, 83 Iowa, 118 366 State V. Zimmerman, 47 Kan. 242 406 State V. Zule, 10 J. J. L. 348 163 Stearnes, Ex parte, 104 Ala. 97 99 Stebbins v. State, 31 Tex. Cr. 294 263, 398, 433 St. Clair v. United States, 151 U. S. 134 303, 333 Steel V. Smith, 1 Barn & Aid. 94 ., 278 Steele v. State, 1 Tex. 142 442 Steele v. State, 19 Tex. App. 425 138 Stefani v. State, 124 Ind. 3 128 Stein V. State, 37 Ala. 123, 133 327, 335, 336 Steinberger v. State, 35 Tex. Cr. 492 230 Stephen v. State, 11 Ga. 225 396, 410 Stephens v. State, 53 N. J. L. 245 396, 398 Sterne v. State, 20 Ala. 43 273, 277 Stevens v. People, 1 Hill (N. Y.), 261 370 Stevens v. State, 76 Ga. 96 169 Stewart v. State, 24 Ind. 142 126 Ixxxiv Table of Cases. SECTIOIT Stockslager v. United States, 116 Fed. 590 382 Stone V. State, 30 Ind. 115 135 Stone V. State, 20 N. J. L. 404 398 Stoneking v. State, 118 Ala. 68 72 Stoors V. State, 3 Mo. 9 396, 418 Strawhern v. State, 37 Miss. 428 394, 397 Strickland v. State, 7 Tex. App. 34 .•• 301 Strokes v. United States, 157 U. S. 187 277, 278 Stropes V. State, 120 Ind. 562 372 Stroud V. Commonwealth, 14 Ky. Law Eep. 179 283 Stuart V. Commonwealth, 28 Gratt. (Va.) 950 106, 118 Stuart V. State (Tex. Cr. App. 1901), 60 S. W. 554 264 Sturm V. State, 74 Ind. 278 13 Sturtevant v. Commonwealth, 158 Mass. 598 366 Stutts V. State (Fla. 1906), 42 So. 51 371 Sublett V. Commonwealth, 18 Ky. Law Kep. 100 262 Sullivan v. State, 47 Miss. 346 372 Sutcliffe V. State, 18 Ohio, 469 380 Sutton V. Commonwealth, 97 Ky. 308 100, 121 Sutton V. Commonwealth, 17 Ky. Law Rep. 175 250 Sutton V. State, 9 Ohio, 133 338 Swain, Ex parte, 19 Tex. App. 323 74 Swan V. State, 29 Ga. 616, 627 14 Syracuse & Tully Plank Road Co. v. People, 66 Barb. 25 437 Sylvester v. State, 71 Ala. 17 236 T. Talton V. Mayes, 163 U. S. 376 40, 74 Tanner v. State, 92 Ala. 1 137, 418 Tarranee v. State, 43 Fla. 447 70 Taylor v. Commonwealth, 28 Ky. Law Rep. 819, 828 241 Taylor v. Commonwealth, 25 Ky. Law Rep. 374 418 Taylor v. People, 12 Hun (N. Y.), 212, 213 400, 402 Taylor v. Porter, 4 Hill (N. Y.), 145 25 Taylor v. State, 113 Ind. 471 447, 448 Taylor v. State, 6 Humph. (Tenn.) 285 297 Team v. Mayers, 53 Miss. 458 394 Teele v. Fond, 4 Johns. R. (N. Y.) 304 278 Tefift V. Commonwealth, 8 Leigh (Va.), 721 138 Tellison v. State, 35 Tex. Cr. R. 388 138 Tennyson v. State, 97 Ala. 78, 12 So. 391 374 Tenorio v. State, 1 N. M. 279 156, 158, 163 Terrell v. State, 165 Ind. 443 319 Terrill v. Superior Court of Santa Clara County (Colo. 1899), 60 Pac. 38, 516 108 Territory v. Anderson, 6 Dak. 300 327 Territory v. Armijo, 7 N. M. 571 313, 374 Territory v. Bell, 5 Mont. 562 270 Territory v. Blomberg, 2 Ariz. 204 30, 40 Territory v. Cadas, 8 Mont. 347 326 Territory v. Garland, 6 Mont. 14 294 Territory v. Carrera, 6 N. M. 593 293 Territory v. Corbett, 3 Mont. 50 61, 62 Territory v. Cutinola, 4 N. M. 160 13 Territory v. Farnsworth, 5 Mont. 303 17 Territory v. Garcia (N. M. 1904), 75 Pac. 34 351 Territory v. Gatliff, 2 Okla. 523 264 Table or Oases. Ixxxv SECTION Territory v. Godfrey, 6 Dak. 46 333 Territory v. Guthrie, 2 Ida. 432, 435 428 Territory v. Harding, 6 Mont. 323 448 Territory v. Heacook, 4 N. M. 354 241 Territory v. Heywood, 2 Wash. Terr. 180 416 Territory v. Layne, 7 Mont. 225 448 Territory v. Milroy, 8 Mont. 361 409 Territory v. O'Donnell, 4 N. M. 66 292 Territory v. Pratt, 6 Dak. 483 160, 170 Territory v. Eemuzon, 3 Gild. (N. M.) 648 241 Territory v. Shipley, 4 Mont. 468 270 Territory v. Woolsey, 3 Utah, 470 135 Tevis V. State, 8 Blackf. (Ind.) 303 438 Thalheim v. State, 38 Fla. 169 285 Thayer v. People, 2 Dough (Mich.) 417 81 Thayer v. State, 11 Ind. 287 318 Thomas v. Commonwealth, 90 Va. 92 261 Thomas v. State ( Fla. 1905 ) , 38 So. 516 354 Thomas v. State, 69 6a. 747 377 Thomas v. State, 103 Ind. 419 342, 345 Thomas v. State, 5 How. (Miss.) 20 155, 156, 160, 163, 174 Thomas v. State (Tex. Crim. App.), 26 S. W. 724 400 Thomas v. State, 2 Tex. App. 293 205 Thomason v. State, 2 Tex. App. 550 181 Thompson v. Commonwealth, 20 Gratt. (Va.) 724 434 Thompson v. People, 125 111. 256 404, 405 Thompson v. People, 4 Neb. 524 397 Thompson v. State, 37 Ark. 408 382 Thornell v. People, 11 Colo. 305 128 Thurmond v. State, 30 Tex. App. 539 351 Thurmond v. State, 55 Ga. 598 439 Tiedke v. Saginaw, 43 Mieh. 64 398 Tipton V. State, 119 Ga. 304 315 Tipton V. State, Peek. ( Tenn. ) 308, 312 150, 154, 169 Todd V. State, 31 Ind. 516 399 Toler V. Commonwealth, 14 Ky. 529 330 Tomby v. State, 87 Ala. 36 342 Tomkins v. State, 33 Tex. 228 327 Tomlinaon v. People, 5 Park. Cr. (N. Y.) 313 339 Toney v. People, 17 III. 105 431 Toole V. State, 89 Ala. 131 307 Towne v. People, 89 111. App. 258 285 Townley v. State, 18 N. J. L. 311, 312 438 Towsend v. State, 137 Ala. 91 423 Travis v. Commonwealth, 16 Ky. Law. Rep. 253 348 Travis v. State, 83 Ga. 372 293 Traylor v. State, 101 Ind. 65 421 Trenholn v. Commercial Nat. Bank, 38 Fed. 323 264 Triggs V. State (Tex. Cr. 1899), 53 S. W. 104 360 Trimble v. State, 61 Neb. 604 133 Trout V. State, 111 Ind. 499 258 Tucker v. State, 8 Lea, 633 394 Tully V. Commonwealth, 4 Mete. (Mass.) 357 372, 380 Tully V. People, 67 N. Y. 15 277, 279, 381 Turk V. Smith, 7 Ohio (Part 2), 240 126 Turner v. Muskegon Circuit Judge, 95 Mich. 1 263 Turner v. People, 40 111. App. 17 213 Turner v. State, 124 Ala. 59 350 Ixxxvi Table of Cases. SECTIOir Turner v. State, 114 Ga. 421 17 Turner v. State, 1 Ohio St. 422 264 Turner v. State, 9 Humph. (Tenn.) 119 170 Turner v. State, 89 Tenn. 547 448 Tumipseed v. State, 6 Ala. 664 372, 393 Turns v. Commonwealth, 6 Mete. (Mass.) 224 232, 318 Turpin v. State, 80 Ind. 148 318 Tuttle V. Commonwealtlj, 2 Gray (Mass.), 505 366 Tuttle V. People, 36 N. Y. 431 277 Twelve Mile Turnpike Co. v. Commonwealth, 4 Ky. Law Kep. 369 251 Two Calf, Ex parte, 11 Neb. 221 99 Tyson v. State, 14 Tex. App. 388 143 V. Ulmer v. State, 14 Ind. 52 96 Underwood v. State, 19 Ala. 532 374 United States v. Adams Express Co., 119 Fed. 240 285, 286, 287 United States v. Alaska Packers' Assn., 1 Alaska, 217 326 United States v. Ayres, 46 Fed. 651 65 United States v. Ballard, 118 Fed. 757 371 United States v. Baltimore & O. E. Co., 153 Fed. 997 242, 389 United States v. Barber, 19 Wash. L. K. 418 246, 248 United States v. Barderheiser, 49 Fed. 846, 864 338 United States v. Baugh, 1 Fed. 784 28 United States v. Bayard, 16 Fed. 376 287 United States v. Beatty, 60 Fed. 740 372 United States v. Beebe, 2 Dak. 292, 301 149, 153, 308 United States v. Belvin, 46 Fed. 381 86, 398 United States v. Benner., Baldw. 234 227 United States v. Bennett, 16 Blatchf . 338 345 United States v. Berry, 96 Fed. 842 428 United States v. Black, 4 Sawy. C. C. 211 29 United States v. Borger, 7 Tex. 193, 196 6 United States v. Bomeman, 36 Fed. 257 227, 348 United States v. Bomeman, 35 :Fed. 824 151, 158 United States v. Bournan, 2 Wash. C. C. 328 310 United States v. Britton, 107 U. S. 655, 669, 670 376 United States v. Brown, 58 Fed. 558 296 United States v. Brown, 3 McLean (U. S.), 233 267 United States v. Burgress, 9 Fed. 896 28 United States v. Bums, 54 Fed. 351 246 United States v. Burroughs, 3 McLean, 405 263 United States v. Butler, Fed. Cas. No. 14,700 128 United States v. Byme, 44 Fed. 188 407 United States v. Camden Iron Works, 150 Fed. 214 374 United States v. Carll, 105 U. S. 611 337, 372, 376 United States v. Carpenter, 6 Dak. 294 374 United States v. Charres, 40 Fed. 820 65 United States v. Chicago St. P. M. & 0. Ky. Co., 151 Fed. 84 391 United States v. Claflin, 25 Fed. Cas. No. 14,798 191 United State v. Clark, 125 Fed. 92 165 United States v. Clark, 46 Fed. 633 149, 243, 263 United States v. Clark, 40 Fed. 325 345 United States v. Clark, 38 Fed. 500 390 United States v. Cobb, 43 Fed. 570 30 United States v. Conrad, 59 Fed. 458 311 United States v. Cook, 17 Wall (U. S.). 168, 174 278, 376, 390 Table of Cases. Ixxxvii SECTION United States r Cover, 46 Fed. 284 272 United States v. Crittenden, 25 Fed. Cas. No. 14,890a, Hempst. 61 313, 429 United States v Crosby, 25 Fed. Cas. No. 14,893 376, 380 United States y. Cross, 1 McArthur (D. C), 149, 153 30, 34 United States ▼. Cruikshank, 92 U. S. 542, 558 372, 376 United States v. Cutajar, 60 Fed. 744 399 United States v. Debs, 65 Fed. 210 336 United States v. Delaware, L. & W. R. Co., 152 Fed. 269 336, 374, 382 United States v. De Walt, 128 U. S. 393 28, 29 , 30 United States v. Doe, 127 Fed. 982 218 United States v. Durland, 65 Fed. 408 251 United States v. Eaton, 144 U. S. 688 276 United States v. Ebert, 25 Fed. Cas. No. 15,019 19 United States v. Ebner, 25 Fed. Cas. No. 15,020 16 United States v. Edwards, 43 Fed. 67 330 United States v. Farrington, 5 Fed. 361, 364 103 United States v. Felderwald, 36 Fed. 490 390 United States v. Field, 16 Fed. 778 28 United States v. Ford, 34 Fed. 26 254 United States v. Fuller, 5 N. M. 80 348 United States v. Fuller, 3 N. M. 367 30 United States v. Garretson, 42 Fed. 22 326 United States v. Gooding, 25 U. S. 460, 475 372 United States v. Goodwin, 20 Fed. 237 384 United States v. Gordan, 22 Fed. 250 400 United States v. Greenliut, 50 Fed. 469 374 United States v. Greve, 65 Fed. 488 348 United States v. Grimm, 45 Fed. 558 256, 372 United States v. Guntlier, 5 Dak. 234 371 United States v. Hade, 26 Fed. Cas. No. 15,274 30 United States v. Hale, 4 Cranch C. C. 83 241 United States v. Hall, 5 N. M. 178, 21 Pac. 85 354 United States v. Hansee, 79 Fed. 303 420 United States v. Harmon, 38 Fed. 827 394 United States v. Henry, 26 Fed. Cas. No. 18,350 371 United States v. Hess, 124 U. S. 483, 486, 487 242, 246, 372, 374, 376 United States v. Hill, 26 Fed. Cas. No. l.b,364 61, 62 United States v. Holmes, 40 Fed. 750 336 United States v. Howard, 3 Sumn. 12 223, 263 United States v. Howell, 65 Fed. 402 ' 402 United States v. Howell, 40 Fed. 110 340 United States v. Irvine, 156 Fed. 376 374, 389 United States v. Jackson, 2 Fed. 502 .' 98 United States v. Johannesen, 38 Fed. 411 30 United States v. Johns, 1 Wash. 363 326 United States v. Jolly, 37 Fed. 108 336, 359 United States v. Jones, 31 Fed. 725 . 81, 83, 86 United States v. Keen, 26 Fed. Cas. No. 15,510 339, 342 United States v. Kelsey, 42 Fed. 882 241 United States v. Kershaw, 5 Utah, 018 298 United States v. Kilpatrick, 16 Fed. 768 81, 87, 90 United States v. Larkin, 4 Cranch. C. C. 617 263 United States v. Laur, 26 Fed. Cas. No. 15,579 180 United States v. Law, 50 Fed. 915 310, 339 United States v. Lawrence, 13 Blatchf. 295 92 United States v. Lehman, 39 Fed. 768 263, 288, 289 United States v. Loving, 91 Fed. 881, 884 g United States v. Lyman, 1 Mason, 498 15 Ixxxviii Table of Cases, SECTIOIT United States v. MacAndrews & Forbes Co., 149 Fed. 823 374, 404, 426 United States v. Mann, 26 Fed. Cas. No. 15,717 19 United States v. Martin, 50 Fed. 918 120 United States v. Maxwell, 26 Fed. Cas. No. 15,750 19 United States v. McCabe, 58 Fed. 557 296 United States v. McCormiek, 1 Cranch C. C. 593 229, 390 United States v. McKinley, 127 Fed. 168 313, 314 United States v. McNeal, 1 Gall. 387 310 United States v. Miner, 26 Fed. Cas. No. 15,780 116 United States v. Murphy, McArthur & M. (D. C.) 375 139 United States v. Nathan, 61 Fed. 936 335, 338 United States v. New York Central & Hudson River Railroad, 157 Fed. 293 374 United States v. Norris, 1 Cranch C. C. 411 436 United States y. Nye, 4 Fed. 891 398 United States v. Paterson, 64 Fed. 145 .' 303 United States v. Patterson, 59 Fed. 280 278 United States v. Patterson, 55 Fed. 605 263 United States v. Peacock, 1 Cranch C. C. 215 339 United States v. Petit, 114 U. S. 429 28, 37 United States v. Pond, 2 Curt. 265 390 United States v. Post, 113 Fed. 852 242, 246 United States v. Potter, 56 Fed. 83 324 United States v. Powers, 1 Alaska, 180 17 United States v. Reilley, 20 Fed. 46 28, 29 United States v. Reynolds, 48 Fed. 215 371 United States v. Ross, Morris, 164 285 United States v. Rounsavel, 27 Fed. Cas. No. 16,199 13 United States v. Schneider, 21 Wash. L. Rep. 45 301 United States v. Sharp, Pet. C. C. 131 392 United States v. Shepard, 27 Fed. Cas. No. 16,273 7 United States v. Simmons, 96 U. S. 360 255, 372, 376 United States v. Simmons, 46 Fed. 65 118 United States v. Smith, 152 Fed. 542 348, 392 United States v. Smith, 45 Fed. 461 374 United States v. Smith, 40 Fed. 755 30 United States v. Smith, 2 Cranch C. C. Ill 339 United States v. Standard Oil Co., 148 Fed. 719 374, 391 United States v. Stevens, 43 Fed. 67 330, 331 United States v. Stoats, 8 How. (U. S.) 41, 45 333 United States v. Stone, 49 Fed. 848 415 United States v. Thompson, Fed. Cas. No. 16,490 149 United States v. Thompson, 6 McLean, 56 176 United States v. Trumbrill, 46 Fed. 756 372 United States v. Ulrici, 3 Dill C. C. 532, 535 328 United States v. Upham, 43 Fed. 68 215 United States v. Upham, 2 Mont. 170 161 United States v. Utah, 5 Utah, 608 126 United States v. Walker, 28 Fed. Cas. No. 16,634 19 United States v. Wallace, 40 Fed. 144 250, 354 United States v. Wardell, 49 Fed. 914 372 United States v. Watkins, 6 Fed. 152 337 Uaited States v. Watkins, 5 Cranch. C. C. 441 227, 351 United States v. Watkins, 3 Cranch 0. Ct. 545 400 United States v. Watson, 17 Fed. 145, 149 339 United States v. Wentworth, U Fed. 52 293, 326 United States v. West, 7 Utah, 437, 27 Pac. 84 396 United States v. Williams, 67 Fed. 201 371 Table of Cases. Ixxxix SECTION "United States v. Williams, 28 Fed. Cas. No. 16,707 180 United States v. Willis, 28 Fed. Cas. No. 16,728 20 United States v. Wilson, Baldw. 78 30 United States v. Winslow, 3 Sawy. 337 309 United States v. Winters, 28 Fed. Cas. No. 16,743 219 United States v. Wood, 44 Fed. 753 292 United States v. Wright, 28 Fed. Cas. No. 16,774 276 United States v. Wrong Dep. Ken, 57 Fed. 206 28 United States v. Wynn, 9 Fed. 886 28, 29 United States v. Yates, 6 Fed. 861 28, 29 Updegraph v. Commonwealth, 6 Serg. & E. (Pa.) 5 374 Upton V. Commonwealth, 14 Ky. Law Rep. 165 405 Uterburgh v. State, 8 Blackf. (Ind.) 202 232 V. Vanderwerker v. People, 5 Wend. (N. Y.) 530 308 Vanderworker v. State, 13 Ark. 700 437 Vanderkarr v. State, 51 Ind. 91 449 Vanhook v. State, 12 Tex. 268 81 Van Horn v. State, 5 Wyo. 501 353 Vanvickle v. State, 22 Tex. App. 625 181 Vannotta v. State, 31 Ind. 210 245 Vaughn v. State, 4 Mo. 530 180 Vaughn v. State, 3 Coldw. 102 326 Vaughn v. State, 9 Tex. App. 563 372 Veal V. State, 116 Ga. 589 221, 225 Venturio v. State, 37 Tex, Cr. 653 382 Verberg v. State, 137 Ala. 73 233 Viberg v. State, 138 Ala. 100 217 Vincent v. California, 149 U. S. 648 37 Vincent v. People, 15 Abb. Pr. (N. Y.) 234 ,280 Virginia v. Gordon, 1 Cranch C. C. 48 442 W. Wabash, St. Louis & Pac. Ry. Co. v. People, 12 111. App. 448 245 Wagner v. People, 4 Abb. Dec. (N. Y.) 509 154 Wagner v. State, 43 Neb. 1 371 Walker v. State (Ala. 1907), 43 So. 188 238 Walker v. State, 142 Ala. 7 128 Walker v. State (Ala.), 12 So. 83 406 Walker v. State, 7 Tex. App. 52 128 Wall V. State, 18 Tex. 682 380 Wallace v. People, 63 111. 451 364 Wallace v. People, 27 111. 45 ' . 339 Waller v. Commonwealth, 97 Ky. 509, 30 S. W. 1023 37 i Waller v. Commonwealth, 84 Va. 492 99 Walters v. State, 5 Iowa, 507 20 319 Walton v. State, 41 Tex. Cr. 454 '.".'.'.'.'.. . .' 348 Walton V. State, 29 Tex. App. 527 I95, 193 Wampler v. State, 28 Tex. App. 352 ' 223 Ward V. People, 23 111. App. 510 37I Ward V. State (Ark.), 90 S. W. 619 298 Ward V. State, 48 Ind. 289 278 Ward V. State, 8 Blackf. (Ind.) 101 207 Ward V. State, 2 Mo. 120 [ 87 Warner v. Commonwealth, 1 Pa. St. 154 435 xc Table of Cases. SECTION Warrace v. State, 27 Fla. 362 297 Warriner v. People, 74 III. 346 377 Washington v. State, 53 Ala. 29 431 Waterman v. State, 116 Ind. 51 128, 143 Watkins v. State, 37 Ark. 370 447 Watson V. State, 111 Ind. 599 258 Watson V. State, 39 Ohio St. 123 279, 399 Watson V. State, 28 Tex. App. 34 263 Watt V. People, 126 111. 9 298 Watt V. State, 97 Ala. 72 371 Weathersby v. State, 1 Tex. App. 643 395, 409 Weaver v State, 34 Tex. Cr. App. 554 241 Weaver v. State (Tex. Cr. App. 1903), 76 S. W. 564 184 Webber v. Harding, 155 Ind. 408 17 Webster v. People, 92 N. Y. 422 343 Websters Case, 5 Me. 432 439 Weehsler v. United States, — Fed. — , 16 Am. B. K. 1 387 Wedge V. State, 12 Md. 232 30) Weeks v. State, 31 Miss. 490 68 Wehhansen v. State, 30 Tex. App. 263 406 Weinzorpflin v. State, 7 Blackf. (Ind.) 186 170 Welborne v. Donaldson, 115 Ga. 563 17 Wells V. Commonwealth, 12 Gray (Mass.), 326 274, 292 Wells V. State, 88 Ala. 239 233 Wells V. State (Ark. 1891), 16 S. W. 577 136 Wells y. State, 21 Tex. App. 594 68, 74 Wendell v. State, 46 Neb. 823 408 West V. People, 137 111. 189 348 West V. State, 71 Ark. 144 143 West v. State, 48 Ind. 483 223 West V. State, 10 Tex. 553 372 West V. State, 27 Tex. App. 472 149, 152 West V. State, 6 Tex. App. 485 184 Westcott V. State, 31 Fla. 458 129 Weston V. State, 63 Ala. 155 119 White V. Commonwealth, 9 Bush. (Ky.) 178 252 White v; Commonwealth, 29 Gratt. 824 440 White V. State, 86 Ala. 69 326 White V. State, 16 Tex. 206 380 White V. State, 3 Tex. App. 605 246 White V. Territory, 1 Wash. 279 344 Whiteside v. State, 4 Cold. (Tenn.) 175 259 Whitesides v. People, 1 111. 21 184, 309 Whiting V .State, 14 Conn. 487 371 Whitting v. State, 121 Ga. 193 356 Whiting V. State, 48 Ohio St. 220 103, 274, 292, 348, 446 Whitney v. State, 10 Ind. 404 339, 348 Whorton v. Commonwealth, 7 Ky. Law Rep. 826 366, 367 Wiggins V. State, 23 Fla. 180 326 Wiggins V. State, 80 Ga. 468 213, 215, 232 Wilburn v. State, 21 Ark. 198 68 Wilcox V. Davis, 7 Minn. 23 48 Wilcox V. State, 31 Tex. 587 234 Wilcox V. State, 35 Tex. Cr. 631 218 Wilde V. Commonwealth, 2 Mete. (Mass.) 408 366, 367 Wildman, Ex parte, 29 Fed. Cas. No. 17,653a 22 Wilhelm v. People, 72 111. 468 76 Wilkins v. United States, 96 Fed. 837...., 276 Table of Cases. xci SECTION Wilkinson v. State, 10 Ind. 372 188 Willey V. State, 46 Ind. 363 129, 133, 135, 170 Williams, Ex parte, 121 Cal. 331 241 Williams v. Commonwealth, 18 Ky. Law Rep. 667 315 Williams v. Commonwealth, 13 Ky. Law Rep. 893 321 Williams v. Commonwealth, 91 Pa. St. 493 285, 287 Williams v. Hert, 110 Fed. 166 35, 37 Williams v. People, 101 111. 385 241 Williams v. People, 20 111. App. 92 390 Williams v. State, 90 Ala. 649 241 Williams v. State, 15 Ala. 260 372 Williams v. State, 47 Ark. 230. .. 434 Williams v. State, 72 Ga. 180 394, 410 Williams v. State, 89 Ga. 483, 15 S. E. 552 390 Williams v. State (Ind. 1907), 79 N. E. 1079 129 Williams v. State, 4 Mo. 480 15 Williams v. State, 35 Ohio St. 175 45 Williams v. State (Tex. Cr. 1906), 90 S. W. 876 353 Williams v. State, 34 Tex. Cr. 523, 31 S. W. 405 350 Williams v. State, 19 Tex. App. 265 74 Williams v. State, 12 Tex. App. 395 1 Williams v. State, 12 Tex. App. 226 323 Williams v. United States, 168 U. S. 382 387 Williams v. United States, 4 Ind. Terr. 204 40 Williamson v. Com., 4 B. Mon. (Ky.) 146 17 Williamson v. State, 77 Miss. 705 418 Willingham v. State, 21 Fla. 761 133 Willis V. People, 2 111. 379 354, 356 Willis V. State, 43 Neb. 102 326 Willis V. State, 34 Tex. Cr. 148, 29 S. W. 687 406 Wills V. State, 4 Blackf. (Ind.) 457 204 Wills V. State, 8 Mo. 52 324 Wilslow V. State, 26 Neb. 308 326, 353 Wilson, Ex parte, 114 U. S. 417 12, 28, 29 Wilson, In re, 140 U. S. 575 1, 76 Wilson, In re, 18 Fed. 33 28 Wilson V. Commonwealth, 3 Bush (Ky.) , 105 108 Wilson V. People, 3 Colo. 328 68 Wilson V. People, 24 Mich. 410 326' Wilson V. State, 84 Ala. 426 293 Wilson V. State, 69 Ga. 224 219, 232 Wilson V. State, 156 Ind. 417 259 Wilson V. State, 43 Neb. 745, 62 N. W. 209 350 Wilson V. State, 45 Texas, 76 416 Wilson V. State (Tex. Cr. App. 1905), 90 S. W. 312 201 Wilson V. State, 15 Tex. App. 150 321 Wilson V. State, 6 Tex. App. 154 236 Wimbish v. State, 89 Ga. 294 sgi Winfield v. State, 3 G. Greene 39 194 Wingard v. State, 13 Ga. 396 242, 253, 306, 311 Winn V. State, 5 Tex. App. 621 184 Winona v. Burke, 23 Minn. 254 276 Winter v. State, 90 Ala. 637 ! ! ! 215 Wise V. Kansas, 2 Kan. 419 179 Witherspoon v. State, 39 Tex. Cr. 65 446 Witt V. State, 130 Ala. 129 .18, 51 Wittens v. State, 4 Tex. App. 70 ' 193 Woddell V. State, 1 Tex. App. 720 " 409 xeii Table of Cases. SECTION Wolf V. State, 19 Ohio St. 248, 255 1, 45, 2!)5 Womaek v. State, 5 Cold. 508 418 Wood V. People, 53 N. Y. 511 366, 370 Wood V. State, 50 Ala. 144 206 Wood V. State, 67 Miss. 575 381 Wood V. State, 29 Tex. App. 538 429 Woodford v. People, 62 N. Y. 117, 128 392, 399, 417 Woodsides v. State, 2 How. (Miss.), 655 136, 169 Woodward v. State, 33 Tex. Cr. 554 353 Woodworth v. State, 145 Ind. 276 282 Wooster v. State, 55 Ala. 217 394, 414 Worley v. State, 11 Humph. 172 390 Wortham v. United States, 5 Eand. (Va.) 669 442 Worthen v. State (Ark. 1907), 101 S. W. 75 103 Worthers v. State, 21 Tex. App. 210 146 Wright V. Davis, 120 Ga. 670 26 Wright V. State, 18 Ga. 383 227 Wright, In re, 3 Wyo. 478 51 Wright V. United States (Okla. 1907) , 90 Pac. 732 333 Wrocklege v. State, 1 Iowa, 167 129, 184 T. Young V. State, 131 Ala. 51 99 Young V. State, 100 Ala. 126 353 Young V. State, 2 How. 865 97 Young V. State, 6 Ohio, 485 173, 180 Young V. State, 30 Tex. App. 308 351 Yundt V. People, 65 111. 372 128 Z. Zaehary v. State, 7 Baxt. (Tenn.) 1 108 Zarresseller v. People, 17 111. 101 431 Zellers v. State, 7 Ind. 659 339 Zimmerman v. State, 4 Ind. App. 583, 31 N. E. 550 446 Zmnhofif v. State. 4 G. Greene, 526. 531 377. 385, 467 LAW OF INDICTMENTS. CHAPTER I. Definitions, Natueb and Chaeacteb. •Seetion 1. Indictment defined. 2. Presentment defined. 3. Presentment distinguished from indictment. 4. Accused may- be tried on presentment of grand jury. 5. Information defined. 6. Information distinguished from indictment. 7. Prosecution by information at common law and in absence of con- stitutional or statutory provision authorizing. 8. Word information in Constitution construed with reference to common law. 9. Object of indictment. 10. Nature and character of indictment. 11. Indictment as used in Constitution or statute construed with reference to common law. Section 1. Indictment defined. — Indictment, which is said to be derived from the French word enditer, signifying to indicate or point out,^ may be generally defined as a formal accusation in writing, made under oath by a grand jury, charging a designated 1. " Indictment cometh of the inditer, which signifies to indicate; to French word enditer and signifieth show or point out. Its object is to in law an accusation found upon an indicate the offense charged against inquest of twelve or more upon their the accused." Bouvier's Law Diet, oath." 3 Cokes Litt., p. 553. Title "Indictment," quoted in Wil- " The word indictment is said to be liams v. State, 12 Tex. App. 395, 398. •derived from the old French word § 1 Definitions, J^atitee and Chaeactee. person or persons with the commission of a crime and stating the nature of the offense charged.* 2. TTnited Statea.— " The indict- ment is the charge of the State against the defendant, the pleading by which he is informed of the fact and nature and scope of the accusa- tion." In re Wilson, 140 U. S. 575, 11 S. Ct. 870. Alabama. — ^Mose v. State, 45 Ala. 421. Arkanaaa. — "An indictment is a ■written accusation of one or more persons of a crime or misdemeanor presented to and preferred upon oath or affirmation, of a grand jury legally convoked." State v. Cox, 8 Ark. 436, 442. Kentucky. — An indictment is " an accusation in writing, found or pre- sented by a grand jury to the court in which they are impaneled, charg- ing a person with the commission of a public oflFense." Blyew v. Common- wealth, 12 Ky. Law Rep. 742, 743, 15 S. W. 356, quoting § 118 Ky. Crim. Code. Maryland. — An indictment is nothing more than a plain brief nar- rative of an offense committed by any person, and the necessary circum- stances that concur to ascertain its fact and nature. Richardson v. State, 66 Md. 205, 210, 7 Atl. 43, quoting Lord Hale in his Pleas of the Crown, p. 168. Michigan. — An indictment is a plain, brief and certain narrative of the offense. Alderman v. People, 4 Mich. 414, 424, 9 Am. Dec. 321. Missonri. — " An indictment is an accusation at the suit of the king (or State), by the oaths of twelve men (at the least, and not more than twenty-three), of the same county wherein the offense was committed, returned to inquire of all offenses in the counly, determinable by the court in which they are returned, and find- ing a bill brought before them to be true." Ex parte Slater, 72 Mo. 102, 106, citing 5 Bacon Abridgement, p. 48. Nevada. — State v. Chamberlain, 6 Nev. 257. Vetr Tork. — " An indictment is an accusation from a body charged and sworn to investigate crime upon the oath of witnesses.'' People v. Dorthy, 20 App. Div. (X. Y.) 308, 320, 46 N. Y. Supp. 970; An indict- ment is a brief narrative of the of- fense charged, which must contain a certain description of the crime and the facts necessary to constitute it. People V. White, 24 Wend. 520, 570; People V. Gates, 13 Wend. 311, 317; Lambert v. People, 9 Cow. 578, 609. North Carolina. — State v. Mor- ris, 104 N. C. 837, 839, 10 S. E. 454. ■ An indictment is defined by Mr. Blackstone to be a written accusation against the individual charged — it is, in substance, the declaration of the State, setting forth the offense of which she complains." State v. Wal- ker, 32 N. C. 234, 236, per Nash, J. Sonth Carolina. — State v. Faile. 43 S. C. 52, 20 S. E. 798; " An indict- ment is an accusation or declaration at the suit of the king, for some of- fense found by a proper jury of twelvfr Definitions, Natuee and Chaeactee. § 3 § 2. Presentment defined. — A presentment is the notice taken of an offense in the form of a report or accusation, by a grand jury, either upon their own observation or knowledge or on evi- men." State v. Starling, 15 Rich. I/. (S. C.) 120, 123. Tennessee. — Campbell v. State, 9 Yerg. 333, 335, 30 Am. Dec. 417. Texas. — " The written statement of a grand jury accusing a person, therein named, of some act or omis- sion, which, in law, is declared to be an offense, setting it forth in plain and intelligible words, and stating everything which it is necessary to prove with such certainty as will en- able the accused to plead the judg- ment that may be given upon it, in bar of any prosecution for the same offense." Huntsman v. State, 12 Tex. App. 619, 636, per Hubt, J. An indictment is defined by Blackstone as " a written accusa- tion of one or more persons, of a crime or misdemeanor, preferred to and presented upon oath by, a grand jury." 4 Blackstone's Comm. 302. This definition has been quoted in the following cases: Arkansas. — State v. Whitlock, 41 Ark. 403, 406. Colorado. — ^Board of County Commrs. v. Graham, 4 Colo. 201, 202. Connecticut. — Goddard v. State, 12 Conn. 448, 452. Georgia. — Hawkins v. State, 54 Ga. 6S3, 657. MissonrL — State v. Carr, 142 Mo. 607, 610, 44 S. W. 776. Xevada. — State v. Millain, 3 Nev. 409, 439. Ohio.— Wolf V. State, 19 Ohio St. 248, 255; Lasure v. State, 19 Ohio St. 43, 50; Lougee v. State, U Ohio 68, 71. v; IVest Virginia. — Statev. Schnelle, 24 W. Va. 767, 774. In, Ha-nrkins Fleas of the Crown ■the following definition is given: " An indictment is an accusation at the suit of the king, by the oath of twelve men of the same county, wherein the offense was committed, returned to inquire of all offenses in general in the county, determinable by the court into which they are re- turned, and finding a bill brought be- fore them to be true." 2 Hawkins Pleas of the Crown, c. 25 (1), quoted in In the Matter of Grosbois, 109 Cal. 445, 42 Pac. 444; Mack v. People, 82 N. Y. 235, 236. Code Definitions. — " An indict- ment is an averment in writing made by a grand jury legally convoked and sworn, that a person therein named or described has done some act, or been guilty of some omission, which by law is a public offense." § 2915 Iowa Code, quoted in Norris' House v. State, 3 G. Greene (Iowa), 513, 517. '■ An indictment is an accusation in writing, presented by a grand jury to a competent court, charging a person with a crime." New York Code Crim. Prac, J 254, quoted in Matter of Jones V. People, 101 App. Biv. (N. Y.) 55, 92 N. Y. Supp. 275; People v. Flaherty, 79 Hun (N. Y.), 48, 50, 29 N. Y. Supp. 641; People v. Stark, 59 Hun (N. Y.), 51, 58, 12 N. Y. Supp. 688. " An indictment is thg § 2 Definition's, I^atuee and Chabactee. denoe before them, which usually serves as the basis for framing an indictment.^ written accusation of the grand jury, accusing a person therein named of some act, or omission, which, by law, is declared to be an oflfense." Tex. Code Crim. Proc, art. 419, quoted in Williams v. State, 12 Tex. App. 395, 399. In Hewitt v. State, 25 Tex. 722, the above definition is quoted by Chief Justice Robebts, who says: " At the adoption of our Constitution, and for a century previously, both in England and America, this is what was understood as constituting an in- dietment." 3. Arkansas. — ^A presentment is the notice taken by a grand jury of any offense from their own knowledge or observation without any bill of in- dictment laid before them at the suit of the government, upon which the prosecuting attorney must afterwards frame an indictment. State v. Whit- lock, 41 Ark. 403, 406. " A present- ment is the notice taken by a grand jury of any offense, from their own knowledge or observation, without any bill of indictment laid before them at the suit of the government." State V. Cox, 8 Ark. 436, 442, per Oldham, J. Georgia. — "A presentment, as de- fined by the common law, properly speaking, is the notice taken by a grand jury of any offense from their own knowledge or observation, with- out any bill of indictment laid before them at the suit of the king." Haw- kins V. State, 54 Ga. 653, 657. A presentment is the notice taken by the grand jury of any offense, from their own knowledge or observation, and into which it is their duty to in- quire. Nunn V. State, 1 Ga. 243, 245. Nevada. — " A presentment at com- mon law was a mere informal state- ment of a grand jury (not prepared by a law officer of the court) calling attention to the existence of some vio- lation of law which the jury might think needed correction." State v. Millain, 3 Nev. 409, 439, per Beattt, J. New York. — ^A presentment is "(1) a report made by a grand jury, on their own motion, either on their own knowledge or on evidence before them, concerning some wrongdoing, and presented to the court, usually as a basis for an indictment. (2) The finding and setting forth of charges in an indictment by a grand jury; an in- dictment." Standard Dictionary, quoted in Matter of Jones v. People, 101 App. Div. (N. Y.) 55, 57, 92 N. Y. Supp. 275, per Jeitks, J. "A pre- sentment is the notice taken of an of- fense by the grand jury from its own knowledge or observation, without any bill of indictment laid before it by the prosecuting officer of the gov- ernment. Upon such presentment, vhen proper, the officer employed to prosecute frames a bill of indictment which is sent to the grand jury, and the latter finds it a true bill. Matter of Jones V. People, 101 App. Div. (N. Y.) 55, 62, 92 N. Y. Supp. 275, per Woodwabd, J. North Caroliiut. — " A present- ment is an accusation made, ex mero Definitions, Natuee and Chaeacteb. § 3 § 3. Presentment distinguished from indictment. — The words presentment and indictment both imply the ecsistence of a grand jury.* A presentment, however, made in the ordinary way by a grand jury is regarded, in the practice at common law, as in the nature of instructions given by the grand jury to the proper officer of the court upon which an indictment may be framed.® Mr. Justice Field, in his much-quoted charge to a federal grand jury in 1872,® said, in reference to presentments: "A presentment differs from an indictment in that it wants technical form, and is usually found by the grand jury upon their own knowledge, or upon the evidence before them, without having any bill from the public prosecutor. It is an informal accusation, which is generally regarded in the light of instructions upon which an indictment can motu, by a grand jury of an offense upon their own observation and knowledge, or upon evidence before them, and without any bill of indict- ment laid before them, at the suit of the government. The presentment is founded either upon facts of which the grand jury, or some member of that body, actually had knowledge, or upon specific information given in good faith and deemed by them to be credible." State v. Morris, 104 N. C. 837, 839, 10 S. E. 454. "A pre- sentment is the notice taken by a grand jury of any offense, from their own knowledge or observation, with- out any bill of indictment before them." Lewis v. Board of Commis- sioners of Wake Co., 74 N. C. 194, 197. Feunsylvaniia. — Commonwealth v. Green, 126 Pa. St. 531, 17 Atl. 878, 12 Am. St. Rep. 894. " A presentment, generally taken, is a very comprehensive term; includ- ing not only presentments, properly so called, but also inquisitions of of- fice and indictments by a grand jury. A presentment, properly speaking, is the notice taken by a grand jury of any offense from their own knowl- edge or observation, without any bill of indictment laid before them at the suit of the king." 4 Blackstone's Comm. 301. 4. State V. Barker, 107 N. C. 913, 13 S. E. 115, 10 L. R. A. 50. 5. Matter of Jones v. People, 101 App. Div. (N. Y.) 55, 92 N. Y. Supp. 275; Commonwealth v. Christian, 7 Gratt. (Va.) 631, 635. A presentment is a proceeding preliminary to an indictment. — In re Gardner, 31 Misc. R. (N. Y.) 364, 64 N. Y. Supp. 760, quoting from Charge to Grand Jury, 30 Fed. Cas. No. 18255, 2 Sawy. 663. Tbe character of a special pre- sentment as a, presentment is not changed by marking the word " in- dictment " thereon, and it may be given in evidence as a presentment, on the trial of the cause. Ivey v. State, 23 Ga. 576. 6. Charge to Grand Jury. 30 Fed. Cas. No. 18255, 2 Sawy. 667. 5 § 4: Definitions, Natuee and Chaeactee. be framed. This form of accusation has fallen in disuse since the practice has prevailed — and the practice now obtains generally — for the prosecuting officer to attend the grand jury and advise them in their investigations." And ordinarily when the indict- ment has been prepared by the proper officer of the court it is submitted to the grand jury and upon their finding it a true bill, the prosecution commences upon that indictment and the present- ment is merged in the indictment and becomes extinct. If, how- ever, such officer declines to frame an indictment upon theae instructions it is declared that the presentment ceases to exist for any purpose.'^ § 4'. Accused may be tried on presentment of grand jury. — Though, as has been stated, a presentment was ordinarily regarded at common law in the nature of instructions upon which an in- dictment might be framed,® yet in some jurisdictions the practice has prevailed, or at least the right been recognized, of putting the accused upon his trial upon the presentment of a grand jury, instead of requiring an indictment or information.^ So in an early case in Virginia, it is said that in the practice in that state the presentment has been allowed an efficacy not known at com- mon law in England. It has been allowed, for many purposes, to stand in the place of an indictment ; or to stand as the foimdation for further proceedings against the party presented,^" and in an early case in Tennessee it was declared that " This practice has been so long followed in this State that it is now too late to question its legality, although it may not be sanctioned by established principles." ^^ In Georgia the distinctions between indictments and presentments was abolished by code, and the latter was made as good as the former as to arraignment and trial for violations of criminal laws.'* 7. Commonwealth v. Christian, 7 J.; Commonwealth v. Towles, 5 Lei^ Gratt. (Va.) 631, 635, per Lomax, J. (Va.), 743. 8. See preceding section. Hl Smith v. State, 1 Humph. 9. See Ivey v. State, 23 Ga. 576, (Tenn.) 396, 398, per Gbeen, J. 580. 12. Groves v. State, 73 Ga. 205, 10. Commonwealth v. Christian, 7 construing Ga. Code, § 4632, which Gratt. (Va.) 631, 635, per Louax, provided that "all sx>ecial present- Definitions, Natuee and Chaeacteb. § 5 § 6. Information defined. — An information is a declaration or statement filed in beljalf of the State by an officer whose duty it is to prosecute crimes, charging a person with a criminal offeiise.^* ments by the grand juries of this State, charging the defendants with violations of the penal lavs, shall be treated as indictments, and it shall not be necessary for the clerk to enter such presentments in full upon the minutes, but only the statement of the case and the findings of the grand jury, as in cases of indictments; nor shall it be necessary for the solicitor- general to frame bills of indictment on such presentments, but he may ar- raign defendants upon such present- ments, and put them upon trial in like manner as if the same were bills of indictment." 13. " The common law information was an accusation of a criminal char- acter exhibited against a person charging him or her with u criminal ofiense by Attorney-General or the Solicitor-General, and under his oath of office." State v. Kyle, 166 Mo., 287, 65 S. W. 763, 56 L. R. A. 115. An information means a prosecution instituted by some officer whose duty it is to prosecute criminal offenses. State v. Shorten, 93 Mo. 123, 5 S. W. 691; State v. Kelm, 79 Mo. 516. " An information is a, declaration or statement without being made on the oath of the grand jury, whereby a person is charged with the breach of some public law or penal statute." State V. Ledford, 3 Mo. 75, 77. " An information (as u mode of prosecu- tion) is a declaration of the charge or offense against any one at the suit of the king, filed by a public of- ficer, without the intervention of a grand jury." State ▼. StarUng, 16 Rich. L. (S. C.) 120, 123. "An in- formation is a written statement filed and presented on behalf of the State by the district attorney, accusing the defendant of an offense which is by law subject to be prosecuted in that way." Tex. Code Or. Proc, art. 402, quoted in State v. Corbit, 42 Tex. 88. The affidavit of a private In- divldnal is not an information and will not support a criminal prosecu- tion. State V. Kelm, 79 Mo. 515, cited and followed in State v. Shor- ten, 93 Mo. 123, 5 S. W. 691; State V. Briscoe, 80 Mo. 643. A oanLplaint by a tytltiag man for a breach of the sabbath, made to u. justice of the peace, is not an in- formation or indictment within a sec- tion of a bill of rights providing that " In all criminal prosecutions, the ac- cused shall have a right to be heard by himself or by counsel; to demand the nature and cause of the accusa- tion; to be confronted by the wit- nesses against him; and to have com- pulsory process to obtain witnesses in his favor; and in all prosecutions by indictment or information, a speedy, public trial, by an impartial jury." Goddard v. State, 12 Conn. 448. A statute deslgnatiaK a eom- plalat an informatlain does not change its legal effect. Lindville ▼. State, 3 Ind. 580. §§ 6, 7 Definitions, Natuee and Chaeactee. i§ 6. Information distinguished from indictment. — An in- formation is an accusation in the nature o£ an indictment from which it does not ordinarily differ in form or substance. The dis- tinction, however, which exists between an information and indictment is in the source from whence it comes, the latter being presented by the grand jury while the former is filed by the proper public officer without the intervention of a grand jury." § 7. Prosecution by information at common law and in ab<- sence of constitutional or statutory provision authorizing. — The mode of prosecution by information is said to be as ancient as the common law itself.'^® But under the common law prosecu- tion by information was confined to mere misdemeanors only, and did not ejrtend to any capital offense.^® In this connection it has been aaid : " The only constitutional provision affecting the question is the fifth amendment, proposed 14. State V. Whitlock, 41 Ark. 403, 406; Goddard v. State, 12 Conn. 448; State V. Kelm, 79 Mo. 515. "An information generally diflfera in nothing from an indictment in its form and substance, except that it is filed by the proper law ofBcer of the government, ex officio, without the intervention or approval of a grand jury." United States v. Borger, 7 Fed. 193, 196, per Blatchfoed, J., citing 2 Story on Const. (4th Ed.), § 1786. 15. " There can be no doubt that this mode of prosecution by infor- mation (or suggestion), filed on record by the king's Attorney-Gen- eral, or by his coroner or master of the crown-office in the court of king's bench, is as ancient as the common law itself." 4 Blackstone's Comm. 309; Davis v. Burke, 179 U. S. 399, 21 S. Ct. 210, 45 L. Ed. 399. 16. "These informations (of every kind) are confined by the constitu- tional law to mere misdemeanors only; for, whenever any capital of- fense is charged, the same law re- quires that the accusation be war- ranted by the oath of twelve men; before the party shall be put to an- swer it." 4 Blackstone's Comm. 310. See State v. Whitlock, 41 Ark. 403, 406, wherein it is said that this pro- ceeding by criminal information comes from the common law without the aid of statutes and is allowable by the common law in a great variety of cases, the rule appearing to be that it is a concurrent remedy with the indictment for all misdemeanors, but not permissible in any felony. See, also, Commonwealth v. Barrett, 9 Leigh (Va.), 655; Matthews v. Com- monwealth, 18 Gratt. (Va.) 989. Definitions, Natuee and Chaeactee. § 8 the same year that the original instrument went into operation — 1789. * * * Congress by proposing, and the States by ratify- ing that amendment, left all offenses not capital or infamous to be prosecuted by information or by indictment as the circumstances of each case would seem to require, and as the oommon law would sanction. * * * We regard the converse of the fifth amend- ment to he that persons may be held to answer for crimes other than such as are capital or infamous, upon information or indict- ment, according to the course of the common law. We have ex- amined all the cases referred to by counsel and find no well considered decision which conflicts with the views we have ex- pressed, and therefore we conclude that, so far as the question rests on the common law, it is the right of the government, by its proper law officer, the district attorney, to charge offenses against individuals through the forms and mode of informations."^^ And the fact that the prosecution of such offenses in the United States courts had fallen into disuse for a long period of time, about eighty years, during which all offenses had been prosecuted by indictment, was held not to affect the right to prosecute by information. J^ § 8. Word information in Constitution construed with refer- ence to common law. — In construing the term information as used in a constitutional provision securing to an accused person the right of prosecution by indictment or information, resort is to be had to the common law in determining the sense in which in- formation, as well as indictment, is used, and in such a case the Legislature is not authorized to extend its meaning and use beyond that of the common law.^^ The word information as used in a clause in the Constitution of a State providing for prosecution by indictment or information, is said to imply no particular form but 17. United States v. Shepard, 27 19. State v. Kyle, 166 Mo. 287, Fed. Cas. No. 16273, 1 App. (U. S.) 303, 65 S. W. 763, 56 L. R. A. 115; 431, per Withey, J. State v. Kelm, 79 Mo. 515; State v. 18. United States v. Shepard, 27 Ransberger, 42 Mo. App. 469; State Fed. Cas. No. 16273, 1 App. (U. S.) v. Rockwell, 18 Mo. App. 395. 431. §§ 9, 10 Definitions, Natube and Chaeacteb. only to require that the accused shall be informed thereon of the nature of the offense of which he is charged, and put npon his trial.^" § 9, Object of indictment — The object of an indictment is two-fold: I'irst, to inform the defendant of the offense with which he is charged with such particularity as will enable him to prepare for his trial ; second, so to define and identify the offense that the defendant may, if convicted or acquitted, be able to de- fend himself, in case he be indicted again for the same offense, by pleading the record of such conviction or acquittal.^ ^ § 10. Nature and character of indictment. — An indictment, which is a technical word peculiar to Anglo-Saxon jurisprudence and which implies the finding of a grand jury,^^ is in its nature a prosecution, though prosecution standing by itself has a larger signification.^* It has also been held to be a judicial proceeding within the meaning of a statute in reference to such proceedings.** And in England it has been decided that the word indictment comprehends a coroner's inquisition. This rule was applied in construing a statute^^ which provided that " in any indictment for murder or manslaughter, or for being an accessory to any murder or manslaughter, it shall not be necessary to set forth the maimer or the means by which the death of the deceased was caused."** 20. Clapper v. State, 4 Tex. 242, the courts of the de facto government 245. during the period of the attempted 21. United States v. Loring, 91 secession from the Union as follows: Fed. 881, 884. " All the judicial proceedings had, or 22. Grin v. Shine, 187 U. S. 181, which may be had, in the courts of 192, 23 S. Ct. 98, per Mr. Justice record, and before justices of the Bbown; Eason v. State, 11 Ark. 481. peace, shall be deemed and held valid, in like manner, and to the same ex- 23. Commonwealth v. Haas, 57 Pa. tent, and not otherwise, as if the St. 443. State had not on the said day, or 24. Indictment a judicial pro- since, attempted to secede from the ceeding. — In a. case in North Caro- United States." State v. Sears, 81 lina in 1867 it was decided that an N. C. (Phillipps L.) 146. indictment was a Judicial proceed- 25. 24 and 25 Vict. c. 100. ing within the meaning of the Ordi- 26. Queen v. Ingham, 5 Best & S. nance of the Convention of 1865, 257, 270; 9 Cox Grim. Law Cas. 508, which validated the proceedings of 511; 117 Eng. Com. Law, 257. 10 Defih-itions, Natuee and Chakactee. § 11 The remedy by indictment is one for the redress of public in- juries and may ordinarily be filed in those cases where an offense is created and punishment imposed unless excluded by the terms of the Constitution or statute.^^ At common law every act contra bonos mores is said to be an indictable offense.*^ An in- dictment will not, howerver, lie for a mere civil injury.'*® § 11. Indictment as used in Constitution or statute — Con- strued with reference to common law. — The words " indict- ment " or " presentment " are common law terms and as used in a constitution or statute are to be construed, in the abs€n<5e of any- thing to the contrary, in their common law sense.^" So in a case in Missouri it is said " the word indictment has a well-defined meaning, and must be accepted and understood as having been inserted in the Constitution with the meaning attached to it at common law."** And in a Florida ease it is declared that, in determining the meaning of a provision in the Bill of Rights that " no person shall be tried for a capital crime or other felony, unless on presentment or indictment by a grand jury " it is " not only proper, but necessary, that we recur to the principles of the common law, from which we derived not only our grand jury system, but in fact the right of jury trial, as well as the body of our mimicipal law."^* 27. Louisville & N. R. K. Co. v. disturbance of the public at large Commonwealth, 112 Ky. 635, 642, 66 that the offender becomes amenable to S. W. 505. the public by way of indictment at 28. State v. Williams, 7 Eob. common law. (La.) 252. 30. Mott v. State, 29 Ark. 147; 29. Rex V. Atkins, 3 Burr, 1706; Eason v. State, 11 Ark. 481; English Rex V. Storr, 3 Burr, 1698; Rex v. v. State,, 31 Ma. 340, 12 So. 689; Osborn, 3 Burr, 1697. See State v. State v. Kyle, 166 Mo. 287, 303, 65 Deherry^ 5 Ired. L. (N. C.) 371, S. W. 763, 56 L. R. A. 115. wherein it is declared that it is only 31. Ex parte Slater, 72 Mo. 102, when the act or acts done by a per- per Noeton, J. son, or the omission to act by a per- 3-2. English v. State, 31 Fla. 340, son, who by law ought to act, oper- 345, 12 So. 689, per Ma^bt, J. ate to the annoyance, detriment or 11 CHAPTER II. Right to and Necessity of Indictment. Section 12. Right'to and necessity of indictment generally. 13. Where mode of prosecution prescribed by Constitution or statute. 14. Where offense created by statute; right to and necessity of indict- ment. 15. Where fine prescribed as punishment. 16. Where offense punishable by fine and imprisonment. 17. Necessity of indictment; summary proceedings; misdemeanors. 18. Same subject continued. 19. Same subject; in Federal courts. 20. Where indictment not proper remedy. 21. Kight to prosecute by indictment after demurrer to information sustained. 22. Power to indict persons confined as military prisoner. 23. Jurisdiction of court dependent on indictment; where case appealed. 24. Indictments presenting questions in moot form. §1 12. Right to and necessity of indictment generally. — ^TJnder the provision of the United States Constitution protecting every one from, being prosecuted without the intervention of a grand jury, for any crime which is subject by law to an infamous punishment, no declaration of Congress is needed to secure, or competent to defeat, the constitutional safe^ard.-' And when an act is made the subject of a criminal charge, the constitutional provision requiring an indictment or information is at once brought into active force in favor of those who are accused of and prosecuted for said act ; and if an indictment be preferred, it must be such an one as the framers of the Constitution contemplated. Such an indictment then becomes one of the steps in the prosecu- tion " in the due course of the law of the land."* J^Teither a constitutional provision that a person must be prose- cuted by indictment for a capital or otherwise infamous crime, 1. Ex parte Wilson, 114 U. S. 417, 2. Hewitt v. State, 25 Tex. 722. 6 S. Ct. 935. 12 Eight to and Necessity of Indictment. § 13 nor a statutory provision that every public offense must be prose- cuted by indictment, except in certain cases, prohibits by implica- tion the prosecution by indictment of any criminal offense.* And whenever a statute prohibits any matter of public grievance to the liberty and s^ecurity of the people, or commands a matter of con- venience, without enacting any penalty for disobeying its pro- visions, it is decided, in an early case, that those who violate its provisions may be prosecuted by indictment and punished by fine.* But where by the Constitution indictment is necessary only in capital or otherwise infamous crimes, and is not required in cases of inferior offenses where the punishment is less than imprison- ment in the penitentiary, and there is no statute which provides for indictment for violation of municipal ordinances, it is held that indictment will not lie.® And though it is provided by a statute that one who violates its provisions shall be subject to indictment this is not exclusive of prosecution by affidavit and information where it is provided by another statute that " all public offenses exciept treason and murder " may in certain cases be prosecuted by affidavit and information as well as by indiot- jnent.® § 13. Where mode of prosecution prescribed by Constitution or statute. — ^Where the Constitution of a State or a statute au- thorized by the Constitution provides the mode in which certain offenses are to be prosecuted, such mode must be followed. There- fore where it is provided that certain offenses shall be prosecuted by indictment, or by information, or by indictment or informa- tion, the mode or modes designated must be followed to the exclusion of all others.^ So where it is provided by Constitution or statute that information shall be the exclusive remedy for mis- 3. Ex parte McCarthy, 53 Cal. 413. v. Rounsavel, 27 Fed. Cas. No. 16199, 4. State V. Fletcher, 5 N. H. 257. 2 Cranch C. C. 133. 5. Finnical v. Village of Cadiz, 61 Connecticut. — State v. Danforth, Ohio St. 494. 3 Conn. 112, 122. 6. Miller v. State, 144 Ind. 401, Illinois. — Gould v. People, 89 111. 44 N. E. 440. 216. 7. United States. — ^United States Indiana. — Butler v. State, 113 13 § 13 Right to and Necessity of Indictment. demeanors committed in a certain county, the remedy prescribed must be pursued and prosecution by indictment is excluded.^ And Ind. 5, 14 N. E. 247; State v. First, 82 Ind. 81; AUstodt v. State, 49 Ind. 233; Jackson v. State, 48 Ind. 251; Bryne v. State, 47 Ind. 120; State v. Benson, 38 Ind. 60. Nevada. — Ex parte Dela, 25 Nev. 346, 60 Pac. 217. South Carolina. — State v. Mit- chell, 1 Bay (S. C.) 267. All criminal cases originating In tbe criminal or circuit conrts at Indiana must be prosecuted either upon an indictment or affidavit and information. Butler v. State, 113 Ind. 5, 14 N. E. 247. All offenses except treason and mnrder may, in Indiana, in certain cases be prosecuted by affidavit and information as well as by indictment. Miller v. State, 144 Ind. 401, 43 N. E. 440; Kennegan v. State, 120 Ind. 176, 21 N. E. 917. Where statute reanlres indict- ment if pnnisliment exceeds seven years.— Where it is provided that all crimes except those punish- able by death and those of which the punishment exceeds seven years, may be prosecuted by information, if the punishment for an ofifense may ex- ceed seven years it can not be prose- cuted by information. State v. Ma- goon, 61 Vt. 45, 17 Atl. 729. Provision not applicable to proceedings to compel payment of debt. — ^A constitutional provision that " prosecutions shall be by in- dictment or information " relates only to criminal proceedings and not to proceedings having for their object the imprisonment of a person to com- pel the payment of a debt and to pro- ceedings against an insolvent debtor for fraud, which are in their nature civil. Martin v. Chrystal, 4 La. Ann. 344. See § 10 herein. Repeal of statute. — A general statute providing for the prosecution of certain offenses which are misde- meanors, by indictment, is repealed by a subsequent statute which pro- vides for the prosecution of all mis- demeanors by information. Terri- tory V. Cutinola, 4 N. M. 160. Statute not a local and special laur. — ^An act providing for the prosecution of felonies by affidavit and information in certain cases is held in Indiana not to be a local and special law, but one of general and uniform operation throughout the State, and constitutional. Fox v. State, 76 Ind. 243; Sturm v. State, 74 Ind. 278; Jones v. State, 74 Ind. 249; Heanley v. State, 74 Ind. 99. Under the JXexr Torfc Iiaw f or- feitine a liquor tax certificate for two convictions (Liquor Tax Law, § 34, subd. 3, Laws 1897, p. 238, c. 312), where an agent is prosecuted a second time it should be by indict- ment. People V. Hoenig, 86 N. Y. Supp. 673; People v. Gantz, 41 Misc. R. 542, 85 N. Y. Supp. 79; People v. Cornyn, 36 Misc. R. 135, 72 N. Y. Supp. 1088. A prosecution against a sheriff for misfeasance In office, in per- mitting a prisoner to escape, should be by indictment. Haskins v. State, 47 Ark. 243, 1 S. W. 242. 8. State V. Stewart, 47 Mo. 382. 14 Eight to and IlfEicEssiTr oi' Indictment. § 14 ■where the statute in reference to misdemeanors provides that a per- son accused of such an offense must be prosecuted by information filed by the prosecuting attorney, a prosecution founded upon an affidavit alone, n<> information being filed, cannot be sustained but the mode prescribed by statute must be foUovred.^ So in England it has been decided that indictment does not lie upon an act of parliament which creates a new offense and prescribes a particular remedy.^" § 14. Where offense created by statute — Right to and necessity of, indictment. — IWhere an offense is created and a par- ticular remedy specified in the prohibitory clause creating it such remedy must be pursued. ^^ A distinction, however, is made be^- tween those cases where a new offense is created by statute, and in the clause creating it a special remedy is prescribed and where a new created offense is prohibited by a substantive clause in a stat- ute and in another section a special remedy is given, it being declared Uiat in the former case the special remedy is exclusive and must be followed, while in the latter an indlictment or information will lie on the prohibitory clause.^* Slo it is 9. State V. Sebecca, 76 Mo. 55; tlon, and the other upon the particu- State V. Huddleston, 75 Mo. 667. lar specific remedy." 10. Reg V. Lovibund, 24 L. T. 357, WKere the mode prescribed is 19 W. R. 753 ; R«x v. Wright, 1 Burr, " by bUl, plaint, or inf orma- 543. See § 14 herein. tion," and indictment is not men- 11. Swan V. State, 29 Ga. 616, tioned, it must be considered as ex- 627; State v. Corwin, 4 Mo. 609; eluded, and the word bill will not Journey v. State, 1 Mo. 428; People be construed to mean bill of indict- V. Hlslop, 77 N. Y. 331 ; Lane v. ment. State v. Matthews, 2 Brev. L. Brown, 16 Wend. (N. Y.) 561; Peo- (S. C.) 82. But see State v. Hel- ple V. Stevens, 13 Wend. (N. Y.) frid, 2 Nott. and McC. (S. C.) 233, 341 ; Rex V. Mead, 1 Burr, 542, 10 Am. Dec. 591. wherein Lord Mansfield said: "In 13. State v. Bishop, 7 Conn. 181, newly created ofiFenses, where there is 185, citing Com. Dig., tit. Informa- a prohibitory, particular clause, tion, A. 3; Rex v. Clark, 6 Cowp. specifying only particular remedies, 610; Rex v. Hymen, 7 Term. R. 536. then such particular remedy must be See, also. State v. Williams, 7 Rob. pursued. For otherwise the defend- (La.) 257, 268, holding, however, that ant would be liable to a double prose- there is no common law in Louisiana cution; one upon the general prohibi- and that one cannot be prosecuted 15 § 15 Eight to and IN'ecessity of Ixdictment. said by tord Mansfield in an early case that : " The rule is certain, ' that where a statute creates a new ofFense, by prohibit- ing and making unlawful anything which was lawful before ; and appoints a specific remedy against such new offense (not ante- cedently unlawful), by a particular sanction and particular method of proceeding, that particular method of proceeding must be pursued, and no other.' But where the offense was antecedently punishable by a common law proceeding, and a statute prescribes, ^ particular remedy by summary proceeding, there either method may be pursued and the prosecutor is at liberty to proceed either at common law, or in the method prescribed by the statute; be- cause there the sanction cumulates and does not exclude the common law punishment." ^* And it has been declared in another case that : " The settled rule is that if a statute gives a remedy in the affirmative, without con- taining any express or implied negative, for a matter which was actionable at common law, this does not take away the common law remedy, but the party may still sue at common law, as well as upon the statute. In such cases the statute remedy will be re- garded as merely cumulative. But where a new right or the means of acquiring it is given, and an adequate remedy for violat- ing it is given in the same statute, then the injured parties are confined to the statutory remedy."-'* So where by act of the Legislature an act or omission constitutes an offense against the public it may be prosecuted by indictment unless a different mode of proceeding is expressly provided for.^^ § 15. Where fine prescribed as pvmishment Where an act is prohibited by statute and a penalty is prescribed but no mode for its recovery is specified it has been decided that an indictment wUl by indictment in the latter case above less lie for such offense as it was an mentioned; People v. Brown, 16 indictable offense at common law. Wend. (N. Y.) 561. 14. State v. Bittinger, 55 Mo. 596, 1,3. Rex V. Robinson, 2 Burr. 799, 599, per Wagner, J. holding that though the statute pro- 15. State v. Williams, 7 Rob. vided for the punishment of the of- (La.) 252; Keller v. State, 11 Md. fense for disobeying an order of ses- 525, 69 Am. Dec. 226. sions, an indictment would neverthe- 16 Right to and Necessity of Indictment. § 15 He.^® Where, however, the method by which it can be recovered is pointed or prescribed in the statute, and indictment is not men- tioned the rule prevails at common law that an indictment will not lie and that the remedy is an action of debt.^^ So in a case in Texas it has been decided that it isi " a rule of the common, law, that where a statute prohibits an act which was before lawful, and enforces the prohibition with a penalty, and a succeeding statute, or the same statute in a subsequent, substantive clause prescribes a mode of proceeding for the penalty, different from that by in- dictment, the prosecutor may, notwithstanding, proceed by indict- ment, upon the prohibitory clause, as for a misdemeanor, or hei may proceed in the manner pointed out by the statute at his option. But if the manner of proceeding for the penalty be con- tained in the same clause which prohibits the act, the mode of pro- ceeding given by the statute must be pursued and no other."-^® So an indictment will not lie for the violation of the by-law of a town where the only authority for the adoption of such by-law is a statute which authorizes towns tO' affix penalties for the violation of its by-laws which may be recovered on complaint before a police, district or municipal court or a trial justice.^* Eut where a stat- ute gives a recovery for a penalty by action of debt^ bill, plaint, or information, or otherwise, it is decided that an indictment will lie.^" And where a city under the power delegated tO' it by its charter and the general laws of the State, imposes a penalty for the re. state V. Meyer, 1 Spears ( S. South Carolina. — State v. Meyer, C), 305; State v. Helgen, 1 Speara 1 Spear, 305; State v. Helgen, 1 (S. C), 310. Spear, 310. 17. United States. — United Tennessee. — State v. Waze, 6 States V. Lyman, 1 Mason, 498; Humph. 17. Adams v. Woods, 2 Craneh. 336. England. — Ties. v. Mallaud, 2 Indiana. — -Durham v. State, 117 Strange, 828. Ind. 477, 19 N. E. 327. See 3 Block. Comm. 160, 161, 162. Iionisiana. — State v. Williams, 7 18. Phillips v. State, 19 Tex. 158, Eob. (La.) 252, 266. per Whbeleb, J. Missonri. — Williams v. State, 4 19. Commonwealth v. Ranson, 183 Mo. 480. Mass. 491, 67 N. E. 605. Fennaylvanla^ — Commonwealth v. 20. State v. Corwln, 4 Mo. 609. Naylor, 34 Pa. St. 86. 17 § 16 Right to and Necessity of Indictment. punishment of an offense which is also an offense against the State and indictable under the State laws it has been decided that the power of the State to indict for such offense is not taken away by the power delegated to the city, as the action by the latter is to be regarded in the nature of a civil suit which does not bar prose- cution by the State.** § 16. Where offense punishable by fine and imprisonment. — ^An offense punishable by fine only and for the recovery of ■which a specific remedy, exclusive of indictment, is provided is distinguishable from an offense which is punishable by fine and imprisonment, in which latter case an indictment will generally lie.^* So where a statute imposes a penalty and also provides that the offense shall be a misdemeanor, punishable by fine and im- prisonment the offender is subject to indictment in like manner as he would have been had the offense been a misdemeanor at common law.^* In this latter case it was said in this connection : "Where a statute creates a new offense by making that unlawful which was lawful before, and prescribes a particular penalty and mode of proceeding, that penalty alone can be enforced. The offense in such case is not indictable. But where the act was an offense at common law, a cumulative sanction may be imposed by statute, and in such case the common law punishment is not excluded, — either or both may be enforced. * * * In this case, although a specific penalty is imposed for a violation of these sections of the, act, the Legislature have though't proper to declare that such viola- tions shall also be deemed misdemeanors, and be punishable by fine and imprisonment. They stand upon the same footing as though they had been misdemeanors at common law, and the statute had then, in addition, imposed a penalty."^* So where an Act of Congress provides that imprisonmerut either may or must be a part of the punishment in addition to a fine, it is decided 21. Levy v. State, 6 Ind. 281. See 24. Per Sdthebland, J. See, also, State V. Plunkett, 18 N. J. L. 5. Lane v. Brown, 16 Wend. (N. Y.) 22. State v. Carter, 48 Mo. 481. 561 ; People v. Hislop, 77 N. Y. 331. 23. People v. Stevens, 13 Wend. (N. Y.) 341. 18 Right to and Necessity of Indictment. § IT that no civil action will lie and that the only remedy is hy indict- ment.^" And in New Jersey it has heen decided that the offense of keeping a bawdy house, which is a crime indictable at common law and punishable in that State by fine and imprisonment in thq State prison, can only be prosecuted by indictment under the Con- stitution of that State and that a statute authorizing the prosecu- tion of such offense by a city court without an indictment found by a grand jury is illegal."® § 17. Necessity of indictment — Summary proceedings — Mis- demeanors. — A constitutional provision requiring an indictment or information does not apply to that class of offenses which are to be tried summarily and without the intervention of an impartiaTi jury from the vicinage,^'' such as misdemeanors, which are not 25. United Statea v. Ebner, 25 Fed. Cas. No. 15020, 4 Biss. (U. S.) 117. 26. State v. Anderson, 40 N. J. L. 224. 27. State v. Guitenez, 15 La. Ann. 190; State v. Glenn, 54 Md. 572. WJiat is meant by gnminairy proceeding. — Tn 4 Blacks. Com. 280, Mr. Justice Blackstone says: "By a summary proceeding I mean prin- cipally such as is directed by several acta of Parliament (for the common law is a stranger to it, unless in the case of contempt), for the conviction of ofiFenders and the inflicting of certain penalties created by these Acts of Parliament. In these there is no intervention of a jury, but the party accused is acquitted or con- demned by the suffrage of such per- son only, as the statute has ap- pointed for his judge. An institu- tion designed professedly for the greater ease of the subject, by doing him speedy justice, and by not harass- ing the freeholders with frequent and troublesome attendance to try every minute offense." And again, in 4 Blacks. Com. 281, he says: "An- other branch of summary proceedings is that before justices of the peace, in order to inflict diverse petty pecu- niary mulcts, and corporal penalties denounced by Acts of Parliament for many disorderly offenses; such as common swearing, drunkenness, va- grancy, idleness and a vast variety of others for which I must refer the stu- dent to the justice-booka formerly cited, and which used to be formally punished by the verdict of a jury in the court itself." Quoted in State V. Glenn, 54 Md. 572, 601. For contempt of court in as- sanltine an attorney for the com- monwealth, the court may proceed in a summary way, such right being fully established by the rule of the common law and an indictment is not required by a statute making such an offense a crime. Arnol v. Common- wealth, 80 Ky. 300. 19 § 17 Eight to and Necessity of Indictment. eonbraced by the words " indictable offenses," ^* and are not capital or infamous crimes within the meaning of the fifth amendment to the United States Constitution.^* So it has been determined in Georgia that there is nothing in the Constitution of the State or of the United States which guarantees to a person charged with a misdemeanor the right to demand an indictment by the grand jury.^" And a constitutional provision as to indictment applies to offenses indictable at common law and does not require an indictment for misdemeanors created by stat- ute for which no infamous punishment is provided. These may be tried in such manner as the Legislature may provide.^ ^ 28. State v. Berlin, 42 Mo. 572; State V. Ebert, 40 Mo. 186. 29. Territory of Montana v. Fams- worth, 5 Mont. 303, 5 Pac. 869. See State V. Craig, 80 Me. 85, holding that offenses not capital or infamous do not require indictment therefor and that prosecution may as well be instituted before a magistrate as by indictment. 30. Green v. State, 119 Ga. 120, 45 S. E. 990; Daughtry v. State, 115 Ga. 819, 42 S. E. 248. 31. Lowry v. Commonwealth, 18 Ky. Law Rep. 481, 36 S. W. 1117, citing Commonwealth v. Avery, 14 Bush (Ky.), 625; Williamson v. Com- monwealth, 4 B. Mon. (Ky.) 146. See, also, Alaska. — ^United States V. Powers, 1 Alaska 180, holding that misdemeanors may be prosecuted by information in Alaska. Arkansas. — ^Rector v. State, 6 Ark. 187, holding that indictment is not necessary in case of misdemean- ors and that the Legislature may pro- vide for the prosecution of offenses less than felony at common law. Colorado. — Re Constitutionality of House Bill No. 158, 21 Pac. 472, hold- ing that the provision of the Colo- rado Constitution (art. 2, | 8), re- quiring that felonies be prosecuted by indictment is not violated by the prosecution of misdemeanors before justices of the peace upon a sworn complaint or other information. Chase v. People, 2 Colo. 509, holding that the Legislature may provide for the prosecution of misdemeanors by infor- mation. District of Columbia. — ^In re George Fry, 3 Maekey, 135, holding that offenses not infamous may be prosecuted by information without violating the Federal Constitution and that offenses punishable only by imprisonment in the jail of the Dis- trict of Columbia, such as petit lar- ceny and the receiving of stolen goods amounting to less than $35 in value are to be treated as non-infam- ous oflenses. Florida.— Ex parte Bell, 19 Fla. 608, holding that the Legislature may provide for prosecution of petty crimes without indictment. King v. State, 17 Fla. 183. Georgia. — Welbome v. Donaldson, 115 Ga. 563, 41 S. E. 99, holding that the Legislature may provide for the punishment of misdemeanors without 20 Eight to and Kbcessitt of Indictment. 18 § 18. Same subject continued. — A statute declaring that as- saults are not indictable but may be prosecuted in a summary way before justices of the peace is not unconstitutional as being in violation of a provision in the Constitution that a person shall not be deprived of life, liberty or property but by the judgment of his peers or the law of the land.*^ And an act of the Legislature pro- viding that misdemeanors may be prosecuted before justices of the peace upon sworn complaint or other information is not in viola- tion of a constitutional provision that " Until otherwise provided by law, no person shall for a felony be proceeded against crim- inally, otherwise than by indictment, except in cases arising in the land and naval forces, or in the militia when in actual service ini time of war or public danger. In all other cases offenses shall be prosecuted criminally, by indictmeint or information."*^ And in Louisiana it has been decided that a violation of a city ordinance may be tried and punished summarily without an indictment or in- formation.** In some States, under, the provisions of the statutes indictment. Turner v. State, 114 6a. 421, 40 S. E. 308; Gordon v. State, 102 Ga. 673, 29 S. E. 444, holding that the Constitution of Georgia does not guarantee indictment in misde- meanor cases. Indiama. — Webber v. Harding, 155 Ind. 408, 58 N. E. 533, construing lud. St., Burns, 1894, § 1694, and holding that in Indiana in a criminal prosecution before a justice of the peace or a police judge it is not neces- sary that the charge be made by in- dictment or information, but may be by complaint under the statute. Tezas. — See Garza v. State, H Tex. App. 410, holding that in the absence of any provision in the Con- stitution or laws of the State author- izing the prosecution of misdemean- ors other than by indictment or in- formation, such offenses must be prosecuted in one of these two modes. See Reddick v. State, 4 Tex. App. 32; Deou V. State, 3 Tex. App. 435. Vermont. — State v. Dyer, 67 Vt. 690, 32 Atl. 814, holding that misde- meanors may be prosecuted by infor- mation. Compare State v. Stein, 2 Mo. 667, wherein it was decided that a statute giving justices of the peace jurisdic- tion of breaches of the peace and pro- viding that the accused might be tried and convicted without a pre- vious indictment of the grand jury was repugnant to the Constitution of the United States and of the State, 32. State v. Ledford, 3 Mo. 75. 33. In re Constitutionality of House Bill No. 158 (Colo. 1886), 21 Pac. 472, construing § 8, art. 2, of Colo. Constitution. 34. Monroe v. Hardy, 46 La. Ann. 1232, 15 So. 696. 21 § 18 Right to Ain) Necessity of Indictment. misdemeanors may be prosecuted either by indictment or by affida- vit and information.*® So in Missouri it has been held that the gen- eral assembly has power under die Constitution of that State to enact that, for offenses of the grade of misdemeanors, persons may be proceeded against criminally either by indictment or informa- tion.*® And it is said to be a general rule that all public misde- meanors, which may be prosecuted by indictment, may be prose- cuted by information in behalf of the commonwealth, unless the prosecution be restrained by the statute to indictment.*^ So in a case in Texas it is decided that the fact that a person violating the provisions of a statute is by such statute " guilty of a misdemeanor and subject to indictment " dora not render such mode of prosecution exclusive where the offense is a misdemeanor within the jurisdiction of a certain court and the Constitution and statutes provide that prosecutions in that court may be commenced by information in writing.** So it has been decided that althou^ by the general law of the State persons charged with certain offenses of the grade of misdemeanors must be proceeded against criminally b^ indictment, yet the general assembly may grant to municipal corporations the power to ordain that persons charged with such offenses may be proceeded against criminally by infor- mation. The general State law and the municipal ordinance may have a concurrent operation.** In Alabama the Constitution provides that in cases of misde- meanors " the general assembly may by law dispense with the grand jury, and authorize such prosecations and proceedings before justices of the peace or such other inferior courts as may be by law eetablished.*" Where, however, the punishment for a violation of mimicipal ordinances may exceed the limits of jurisdictioni of justices of the peace as prescribed by the Constitution, such vio- 35. Douglass v. State, 72 Ind. 385. 38. Haines v. State, 7 Tex. App. 36. State v. Cowan, 29 Mo. 330, 30. citing State t. Ledford, 3 Mo. 75, as 39. State v. Cowan, 29 Mo. 330. having settled the doctrine in this re- 40. Witt v. State, 130 Ala. 129, 30 spect in that State. So. 473; Ala. Const., § 9, art. 1; 37. Commonwealth v. Inhabitants Frost v. State, 124 Ala. 71, 27 Sa of Waterborough, 5 Mass. 257 ; Haines 550. V. State, 7 Tex. App. 30. 22 Right to and JSThcessity of Indictmbst. § 1* ktions are criminal offenses, which must be prosecuted by preeent- ment or indictment of a grand jury as provided by a oonatitutional provision to the effect that no person shall be held to answer for a criminal offense unless on the presentment or indictment of a grand jury " except ... in oases cc^nizable by justices of the peace. "^^ I 191 Same subject — In Federal courts. — An information may be filed in the national courts for misdemeanors com- mitted against the laws of the United States.*'' So where by act of Coi^ess the exportation of goods to a foreign country in violation of the provisions of such act was dedared to be a misdemeanor, it was held that the circuit court had jurisdiction of such offense and that the cause was rightfully prosecuted by information.*^ So in this connection it was said by Judge I>illon in a ease in which this question arose, " Criminal prosecutions for misdemeanors was a familiar mode of procedure in England, ' as ancient,' says Blackstone,** * as the common law itself ;' and was the only existing mode of prosecution, it seems, except by indict- ment or presentment of a grand jury.*** It was a mode in daily and constant use in England at the time of the American Revolu- tion, as well as in the Ainerican Colonies. This was well known when the fifth amendment of the Constitution was adopted, which provided only for the previous action of a grand jury in capital or otherwise infamous offenses. If it had been intended wholly to prohibit prosiecution by information, language expressive of such intention would have been used. Congress has never enacted a code of criminal procedure, and the States have no power to pre- scribe either modes of proceeeding, or rules of evidence in prosecu- tions for Eederal offensies. In a general way the Federal courts 41. State V. West, 42 Minn. 147, 43 demeanors whicli might be proeecnted N. W. 845. by information. 42. United States v. Waller, 28 43. United States v. Mann, 20 Fed. Fed. Cas. No. 16634. 1 Sawy. 701; Cas. No. 15717, 1 Gall. 3. United States v. Ebert, 25 Fed. Cas. 44. 4 Comm. 309. No. 15019, holding offenses arising 45. 4 Comm. 308. under the internal revenue laws mis- 23 §§ 20, 21 Eight to and Necessity of Indictment. must be governed in these respects by the common law with the modifications pointed out by the Stupreme Court."*® § 20. When indictment not proper remedy.. — ^Where it is pro- vided by the Constitution of a State that certain offenses less than felony shall be prosecuted on infonnation without in- dictment or the intervention] of a grand jury, an indictment and proceedings thereunder for the prosecution of an offense of the character described will be unauthorized and void and no punish- ment can properly be imposed on one so accused and prosecuted.*^ So though by common law an assault is an indictable offense, yet where by statute an exclusive jurisdiction of such an offense is given to justices of the peace, an indictment therefor will not lie,** and an offense not indictable at common law and created by statute is only punishable as statute directs and if it does not pro- vide for indictment the offense is not indictable.*^ § 21. Right to prosecute by indictment after demurrer to information sustained. — Where a person is prosecuted by infor- mation, although the court sustains a demurrer to the information and orders another one to be filed, the defendant may nevertheless be indicted by the grand jury without an order of court submitr ting it to them.^" 46. United States v. Maxwell, 26 followed in State v. Shawbeck, 7 Iowa, Fed. Cas. No. 15750, 3 Dill. 275. 322. 47. Walters v. State, 5 Iowa, 507, 48. State \. Hailstoek, 2 Blaekf. construing § 11 of the Bill of Rights, (Ind.) 257; Guy v. State, 1 Kan. which provided that " All offenses 448. less than felony, and in which the 49. United States v. Willis, 28 punishment does not exceed a fine of Fed. Cas. No. 16728, 1 Cranch C. C. one hundred dollars, or imprisonment 511. for thirty days, shall be tried sum- 50. People v. Prather, 134 Cal. marily before a justice of the peace, 436, 66 Pac. 589, 863 ; People v. Whe- or other officer authorized by law, on Ian, 117 Cal. 559, 49 Pac. 583. The information under oath, without in- court said in the latter case: "It dictment or the intervention of a was within the jurisdiction of the grand jury, saving to the defendant grand jury to take cognizance of the the right of appeal." This case was charge without an order of court sub- 24 Eight to and ITecessitt op Indictment. §§ 22, 23 § 22. Power to indict person confined as military prisoner. — ^Congress has power to make rules for the government and regu- lation of the land and naval forces and it has been decided that in the exercise of this power it may provide that a person, who has been dismissed from the service and punished and is held as a military prisoner under sentence, may still be siubjeot to trial by court-martial for offenses committed during such confine- ment. And such a law is held not to be in violation of the Fifth Amendment to thei Constitution of the United States providing that no person not in the land or military f orcesi shall be prosecuted for a capital or otherwise infamous crime except on a presentment or indictment of a grand jury.'^ § 23. Jurisdiction of court dependent on indictment where case appealed — Where jurisdiction is conferred upon a court to try criminal offenses only upon indictment or information, this has reference only to the original jurisdiction of that court, and where it also has jurisdiction of criminal cases on appeal from a lower court, the former provision.' as to jurisdiction does not secure to the accused a right to be tried on information or indictment. So in Florida where an appeal is taken to the Circuit Court from the judgment of a justice of the peace an information or indictment is unnecessary, but a trial de novo is had upon the affidavit, warrant and proceedings of the justice court which are returned to the Circuit Court in accordance with the provisions of the statute.^^ And in a case in North Carolina it is held that where a justice of the peace has jurisdiction of an offense it is not necessary on the trial of an appeal from a judgment rendered by a justice of the peace that an indiotmemt should be found.®^ mitting it to them. No such order had ever been filed." Per Van was required, as the charge had not Ft-eet, J. previously been examined by that or 51. Ex parte Wildman, 29 Fed. any former grand jury; and a de- Cas. No. 17653a. murrer having been sustained to the 52. Ex parte Benjamin F. Morris, information, with a direction that a 45 Fla. 157, 34 So. 89; §§ 2981, 2982, new one be filed, the status of the Fla. Rev. St. charge was, in all material respects, 53. State v. Quick, 72 N. C. 241. the same as though no information 25 § 24 Right to and Necessitt of IwDiOTMBirT. § 24. Indictments presenting questions in moot form. — In a case in West Virginia it lias been decided that where indict- ments are drawn for the purpose of presenting to lie court tlie questions involved in a moot form they will not be taken into consideration by the court which will not hear and determine moot questions, that is to say, abstract questions upon formal issues made up by the mutual consent and agreement of the cCKmael of ibe opposing contestants.'* 54. State t. Feel Splint Ck>al Co.. 36 W. Va. 802, 809, 15 S. E. 1000, 17 L. B. A. 386. d€ CHAPTER IIL Oonstithtional akd Statftoet Pedvisions. Section 25. Terms " law of the land " and " due process of law " oonstraed. 26. " Due process of law " does not require preservation of grand jury and indictment. 27. "lyaw of the land"; has reference to time offense committed and not time of trial. 28. What are "infamous crimes" within constitutional provision. 29. What are " infamous crimes " within constitutional provision — continued. 30. What are " infamous crimes " within constitutional provision — conclusion. 31. Constitutional right to indictment cannot be waived; United States Constitution. 32. Constitutional right to indictment cannot be waived; under State Constitution. 33. Waiver of right to indictment hy failure to demand; misdemean- ors; statute. 34. Congress cannot take away right of indictment, but may change grade of a crime. 35. State may dispense with indictment; not restricted by fifth amendment to United States Constitution. 36. State may dispense with indictment; not restricted by fourteenth amendment to United States Constitution. 37. State may dispense with indictment; not restricted by United States Constitution. 38. State may dispense with indictment; not restricted by adoptioa of United States Constitution. 39. Where indictment and information concurrent remedies; may pro- ceed by information, though grand jury in session. 40. Powers of territorial government to dispense with indictment. 41. A constitutional provisioni as to indictment gives no vested right; California case. 42. A constitutional provision as to indictment gives no vested right; Missouri case. 43. Whether a constitutional provision as to indictment gives vested right — conclusion: 44. Crime committed beifore admission of Territory aa State; ri^t to prosecute by information!. 3T § 25 CONSTITTJTIONAI, AND StATUTOET PeO VISIONS. Section 45. Legislature may prescribe form of indictment; general rule. 46. Limitations on power of Legislature to prescribe form of indict- ment. 47. Same subject continued. 48. Power of Legislature to dispense with indictment where provided for by State Constitution. 49. Indictment essential to jurisdiction where Constitution requires prosecution by. 50. Conviction for assault under indictment for manslaughter; ex port facto law ; New York case. 51. Legislature may dispense with indictment where authorized by Constitution. 52. Whether constitutional provision for prosecution by information instead of indictment is self-executing. 53. Changing charge in indictment; power of courts as to. 54. Legislature has no power to authorize court to change charge in indictment. 55. Constitutional provision requiring indictment for offenses punish- able with imprisonment for life construed. 56. Eight of State to provide for prosecution by information as affected Tiy treaty. 57. Code provision as to indictment against accessory and principal; constitutionality of. § 25'. Terms " law of the land " and " due process of law " construed. — A frequent, if not general, provision of tlie Anxeriean Constitutions is to the effect that a person shall not be deprived of his life, liberty or estate but by the judgment of his peers or the law of the land. This provision, the origin of which is to be found in the Magna Charta,^ has ordinarily been construed as giving to an accused person the right of prosecution according to the due course of the law, including trial by jury and prosecution by in- dictment for all the higher crimes and offenses, in the absence of a constitutional provision permitting prosecution by some other mode.^ The phrases "the law of the land" ernd "due process of law," as used in our vumous State Consititutions, axa synony- mous, and mean the law in its regular, coiurse of administration 1. Jones V. Eobbins, 8 Gray Jones v. Robbins, 8 Gray (Mass.), (Mass.), 329; State v. Ray, 63 K. H. 329; Taylor v. Porter, 4 HiU (N. Y.), 406, 39 L. R. A. 432. 145. 2. Saco V. Wentworth, 37 Me. 172; 28 Constitutional and Statutoey Peo visions. § 26 through, the courts of justice.^ In this connection it is said in a case in Massachusetts : " Lord Coke, in comment- ing upon this clause of Magna Charta — nisi per legem terrae — adopts the construction that the clause meant ' without process of law, that is, by indictment or presentment of good and lawful men.'* This may not be conclusive; but, being a construction adopted by a writer of high authority, before the emigration of our ancestors, it has a tendency to show how it was then understood. Chancellor Kent, after setting forth the right and liberties claimed by the people of this country, aoid in ex- planation of these words from Magna Charta, says: ' The words by the law of the land, as originally used in Magna Charta in reference to this subject, are understood to mean due process of law, that is, by indictment or presentment of good and lawful men,' and he relies on the authority of Lord Coke for the cor- rectness of this exposition."^ § 26. " Due process of law " does not require preserva- tion of grand jury and indictment. — Due process of law does not require the preservation and perpetuation of the grand jury system, and its abolishment is not an infraction of the sacred and inestimable rights, privileges and immunities to which every citizen of the State or of the United Sitates is entitled as of right.® So in a case in the United Statesi Supreme Court it is decided that the words "due process of law," as used in the Fourteenth Amendment to the United Sitates Constitution, do not require that a State in the prosecution of a murder must proceed by indioment.'^ The court said in this case: "The objection that the proceeding by information does not amount to due process of 3. State V. Stimpson, 78 Vt. 124, 295, 61 Pac. 894, 51 L. E. A. 246. 62 Atl. 14, 1 L. R. A. (U. S.) 1153. See, also. In re Dolph, 17 Colo. 35, See, also. State v. Beswlck, 13 R. I. 28 Pac. 470. 211, 218, 43 Am. Rep. 26. 7. Maxwell v. Dow, 176 U. 8. 581, 4. 2 Inst. 50. 20 S. a. 448, 494, 44 L. Ed. 597, af- 5. 2 Kent Com. (6th ed.) 13, cited firming Hurtado v. California, 110 U. in Jones v. Robbins, 8 Gray (Mass.), S. 516, and cases following that deei- 329, 343, per Shaw, C. J. sion. e. State V. Tucker, 36 Oreg. 291, 29 § 27 Constitutional and Statutoey Peovxsions. law has been keretofore overruled and must be regarded as set- tled by the case of. Hurtado v. California.^ The case has since been frequently approved.'" And in a case in Coloraido it is said in this conneotioD, : " 'N'o Stfcatie shall deprive any person of life, liberty or propetrty without due process of laiw, says the Oonstitur tion of the United States, and our own Consttitution contains a like declaration. D!ue process of law, within the meaning of these constitutional provisiona, undoubtedly includes ' law in its regidar course of administration through courts of justice;' it also implies that any individual whose life, liberty or property may 'be affected by any judSoiial proceeding shall have timely notice thereof and reasonable opportunity to be heard in defense of his rights'; but it does not neoessarily include an indictment by a grand jury for a felony, even though smoh proseoution may deprive the accused of his life or liberty. While ancient forms of procedure are not to be lightly set aside or disregarded, modem judicial utterances as well :as mod'em conBtitutionsi and laws evince more regard for substance than for form."^** So "due process of law " does not prevent the Legislature, when creating a city court, from providing for the trial of misdemeanor cases therein upon a mere accusation preferred and signed officially by the prosecuting officer of such court. ■'^ § 2'7- "Law of the land" — Has reference to time offense committed and not time of trial — Jm defjermining the rights of an accused person under the phnasie " the law of the land " the question arises whether such ph'rase hias refer'eaice to the law in force at the time the offense was coinmitted or at the time of the prosecution or trial. To he in laiaciOird with the consitruction given to constitutional provisions securing rights to individ'uala it woidd 8. 110 U. S. 516. Brown v. New Jersey, 175 U. S. 172, 9. Per Mr. Justice Pbckham, cit- 176, 20 S. Ct. 77 ; Bolln v. Nebraska, ing Hallinger v. Davis, 146 U. S. 314, 176 U. S. 83, 20 S. Ct. 287. 322, 13 S. Ct. 105; McNulty v. Cali- la In re Dolph, 17 Colo. 35, 37, fornia, 149 U. 8. 645, 13 S. Ct. 959; 28 Pac. 470, per Eixiorr, J. Hodgson V. Vermont, 168 U. S. 262, 11. Wright v. Davis, 120 Ga. 670, 272, 18 S. Ct. 80; Holden v. Hardy, 48 S. E. 170. 169 U. 8. 366, 384, 18 S. Ct. 383; 30 Constitutional and Statutoet Pkovisions. § 28 seem that this phrase should be construed as referring to the law of the land at the time the oflFense was committed and that the rights given by the Constitution at that time would be the rights secured to him and of which he could not be deprived. In this connection it is said in a case in which the phrase " the law of the land " is considered : " These terms, in this connec- tioni, cannot, we think, be used in their most bold and literal sense ■to mean the law of the land at the time of the trial ; because the laws may be sihaped and altered by the I/egislature, from time to time ; and such a provision intended to prohibit the making of any law impairing the ancient rights and liberties of the subject, would under such a construction be wholly nugatory and void. The Legislature might simply change the law, by statute, and thus remove the landmark and barrier intended to be set up by this provision in the Bill of Rights. It must therefore have in- tended the ancient established law and course of legal proceedings, by an adherence to which our ancestors in England, before the settlement of this country and the emigrants themselves and their descendants, had found safety for their personal rights-"^* § 2.8. What are " infamous crimes " within constitutional provision — The question as to what confititutes an " infamous crime," within the meaning of the fifth amendment of the United States Constitution and also within the meaning of similar pro- visions in the State Constitutions hasi been prolific of much dis- cussion and there are numerous decisions in the earlier cases in the Federal courts which are not consistent with the modem doctrine.** The theory upon which the courts proceeded in the 12. Jones v. Robbins, 8 Gray counterfeit money of the United (Mass.), 329, 343, per Shaw, C. J. States is not an infamous crime. 13. Embezzlement by a postmaster United States v. Field, 16 Fed. 778. is not an infamous crime. United Conspiring to make counterfeit coin States V. Eeilley, 20 Fed. 46. Passing not an infamous crime, etc. United a counterfeited obligation of an inter- States v. Burgess, 9 Fed. 896. Steal- est-bearing coupon bond of the United ing from the mail not an infamous States is not an infamous crime ; crime. United States v. Wynn, 9 Fed. may be prosecuted by information. In 886. Passing counterfeit trade dol- re Wilson, 18 Fed. 33. Passing lars of United States not an infam- 31 § 29 Constitutional and Statutoey Peg visions. earlier cases in reacking their conclusionsi was that it was not the question of degree of punishment which controlled, but rather the nature or character of the orime.^* The United States Su- preme Court, however, in Ex parte Wilson,,^^ determined that any crime punishable by imprisonment for a term of years at hard labor is an infamous crime, within the meaning of the fifth amendment of the United States Constitution and could not be prosecuted by infoimation in any court of the United States.^' And in a later ease in this court it was determined that it is not necessary to render a crime an infamous one within the meaning of the fifth, amendment of the United States Constitution, pro- viding that " no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury," that the crime shall be punishable with hard labor, but if the crime is punishable by imprisonment in a State prison or penitentiary it is an infamous crime, whether with or without hard labor.^^ " The test is whether the crime is one for which the statutes authorize the court to award an infamous pun- ishment, not whether the punishment ultimately awarded is an infamous one; when the accused is in danger of being subjected to an infamous punishment if convicted, he has the right to insist that he shall not be put upon his trial, except on the accusation of a grand jury." ** § 2'9. What are infamous crimes within constitutional provi- sion — Continued. — As we have already stated,^® the doctrine pre- vailed to a great extent at one time that this question was to be OU8 crime. United States v. Yates, 6 United States v. Wong Dep Ken, 57 Fed. 861. Embezzlement of a letter ¥ed. 206. by an employee in the postal service 17. United States v. DeWalt, 128 is not an infamous crime. United U. S. 393, 32 L. Ed. 485, 9 Sup. Ct. States V. Baugh, 1 Fed. 784. E. Ill; Mackin v. United States, 117 14. See Butler v. Wentworth, 84 U. S. 348, 6 S. Ct. 777. Me. 25, 24 Atl. 456, and also cases in 18. Mackin v. United States, 117 preceding note. U. S. 348, 6 S. Ct. 777, per Mr. Jus- 15. 114 U. S. 417, 5 S. Ct. 935. tice Geay. 16. See, also. United States v. 19. See preceding section. Petit, 114 U. S. 429, 5 S. Ct. 1190; 32 CONSTITUTION-AL AND StATUTOET PkOVISIONS. § 29 deftennined rather by the nature of the crime than by the punish- ment which might be inflicted. In reference to this doctrine it is said in a case in Maine : " If the nature of the crime as under- stood at common law, rather than the punishment inflicted, were to govern in determining whether it was infamous or not within the meaning of the provision of the Constitution, many offenses might be held not to be infamous crimes and requiring no indict- ment for their prosecution. This doctrine at one time obtained considerable foothold in the Federal courts. Thus the offense of stealing or embezzling from the mails,^" passing counterfeit money,^^ embezzlement as defined by the Federal statutes,^* wil- fully and fraudulently omitting assets of a bankrupt from the inventory of his estate,^^ were held not to be infamous crimes, and that no indictment was necessary for their prosecution. But this doctrine has since been expressly disapproved by the Supreme Court of the United States, where it has been decided that any crime which is punishable by imprisonment for a term of years is am infamous crime, and cannot be prosecuted except upon indictment or presentment by a grand jury; thus repudiating the doctrine enunciated in some of the earlier decisions not only of the State, but also of the Federal courts, that the question whether the crime is infamous is to be determined solely and entirely from the nature of the act and in total disregard of the punishment inflicted.^* * * * And the purport of all the decisions from the highest court in this country since Ex parte Wilson, supra>,^^ is that a crime punishable by imprisonment in the State prison or peni- tentiary, whether the accused is or is not sentenced to hard labor, 20. United States v. Wynn, 9 Fed. Parkinson v. United States, 121 U. S. 886. 281, 7 S. Ct. 896; Ex parte Bain, 121 21. United States v. Yates, 6 Fed. U. S. 1, 13, 7 S. Ct. 781; United 861. States v. DeWalt, 128 U. S. 393, 9 S. 22. United States v. Eeilley, 20 ut. Ill; Medley, Petitioner, 134 U. Fed. 46. S. 160, 169, 10 S. Ct. 491; In re Mills, 23. United States v. Black, 4 135 U. S. 263, 267, 10 S. Ct. 762; In Sawy. C. C. 211. re Claasen, 140 U. S. 200, 205, 11 S. 24. Ex parte Wilson, 114 U. S. Ct. 735; Jones v. Eobbins, 8 Gray, 417, 5 S. Ct. 935; Maekin v. United 329. States, 117 U. S. 348, 6 S. Ct. 977; 25. 114 U. S. 417, 5 S. Ct. 935. 33 § 30 Constitutional and Statutoey Peovisions. is an infamous crime; and in determining this, the question is, whether it is one for which the statute authorizes the court to award an infamous pimishment, and not whether the punishment actually imposed is an infamous one."** § 30. What are infamous crimes within constitutional provi- sion — Conclusion. — The modem rule as to whether a crime is an " infamous crime " within the meaning of a constitutional provision requiring an indictment in such cases, is that the ques- tion is to be determined by the nature of the punishment which may be inflicted. If the accused may be subjected to an infamous punishment, the fact that the punishment may on the other hand be lighter does not change the character of the offense. And it has been generally decided that a crime, punishable by imprison- ment in a State prison or penitentiary, whether with or without hard labor, is an infamous crime which must be prosecuted' by indictment, in the absence of some controlling constitutional or statutory provision which permits of the prosecution of such offenses by some other mode of procedure.*^ The words 26. Butler v. Wentworth, 84 Me. 25, 24 Atl. 456, per Foster, J. 27. See eases cited in two preced- ing sections. See, also, United States v. Cobb, 43 Fed. 570; United States v. Smith, 40 Fed. 756 ; Ex parte McClusky, 40 Fed. 71; United States v. Johannesen, 38 Fed. 411; Territory of Arizona v. Blomberg, 2 Ariz. 204, 11 Pac. 671; King V. State, 17 Fla. 183; State v. Reeves, 97 Mo. 668, 10 S. W. 841. In Connecticnt, under a constitu- tional provision which requires that all crimes punishable by death or life imprisonment shall be prosecuted by indictment and a statutory provision that all crimes not so punishable may be prosecuted by information, it is de- cided that where the punishment for a crime is not less than ten years and no maximum penalty is stated, the crime may be prosecuted by informa- tion. Romero v. State, 60 Conn. 92, 22 Atl. 496. To make a pnnifthmemt for a crime inf am.oiis it must pronounce against the offender a degradation from his civil rights as a citizen, the right of franchise, the right of giving testimony, or some other civil or political right, and in the absence of such forfeiture the crime will not be deemed legally infamous unless it is so expressly pronounced. United States v. Cross, 1 McArthur (D. C), 149, 153, per Carttee, J. Embezzlement and making of false entries by a national bank president is an infamous crime. United States v. DeWalt, 128 U. S. .393, 32 L. Ed. 485, 9 S. Ct. 111. 34 Constitutional and Statutory Peo visions. § 31 * infamous crime " do not, however, include every offense "which is punishable by imprisonment, as in the case of petty crimes and misdemeanors.** So an offense punishable by imprisonment in jail not exceeding a year without hard labor has been held not an infamous crime, and may be prosecuted by in- formation,'^* And it is also held, under a statute permitting the attomey general in the case of the conviction of a person where the punishment isi confinement for less thau' a year in jail, to send the person convicted in another State to be imprisoned, where there is no jail in the district or State where he was cor>- victed, in which he could be confined, that the mere fact of the attomey general engaging prisons in another State than that in which the convict is sentenced cannot change the character of the convict's punishment nor make that infamous which was not so by the sentence.^** Again, where different punishments are inflicted for different degrees of an offense and the offense is usually charged in the same terms whatever the punishment may be, it has been decided that the degree of the offense in any par- ticular case must depend upon the proof adduced and not upon the facts alleged.*^ § 31. Constitutional right to indictment cannot be waived — United States Constitution. — The fifth amendment to the United States Constitution, providing that " no person shall be held to answer for a capital, or otherwise infamous, crime, unless on a presentment or indictment of a grand jury," was manifestly designed and intended for the security of personal rights.** It is an essential to the jurisdiction of the court** and being a BUsapplying the fnmds of a 10 Atl. 481. national bank is an infamous 29. United States v. Cobb, 43 Fed. crime. United States v. Hade, 26 570. Fed. Cas. No. 15274. 30. United States v. Cobb, 43 Fed. Assault with intent to kill is an 570. infamous crime. Ex parte Brown, 40 31. State v. Cram, 84 Me. 271, 24 Fed. 81. Atl. 853. Iiarceny is an infamous crime. 32. Ex parte Bain, 121 U. S. 1, 6, United States v. Fuller, 3 N. M. 367. 7 S. Ct. 781. 28. State v. Nolan, 15 E, I. 529, 33. Ex parte Bain, 121 U. S. 1, 7 § 32 Constitutional and Statutoey Peovisions. constitutional right of a party cannot be waived by him so as to preclude him from subsequently setting up want of jurisdiction in the court to try him. "A party cannot waive a constitutional right when its effect is to give a court jurisdiction.^* The fifth amendment to the Constitution, that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, provides for a requisite to jurisdiction. * * * jf ^g crime be of such a nature that an indictment to warrant a prosecution of the crime is required by the law, the court has no jurisdiction to tiy without such indictment. Can a party consent to jurisdiction? Can he by agreement with the government, surrender his liberty for a stipulated time? Has any person a right to surrender his liberty in violation of a fundamental right, secured to him for the protection of such person by the fifth amendment to the Con- stitution of the United States ? !tf o man or no power has the right to take away another's liberty, even though with consent, except by due process of law. Due process of law, in a case like the one charged against petitioners, means compliance by the government with a fundamental requisite, such as that the party shall be charged with the crime in the way provided by the Constitution and laws of the United States."" § 32. Constitutional right to indictment can not be waived — Under State Constitutions. — Where by a State constitutional provision the right is secured to a person accused of certain crimes of an indictment by the grand jury, a proceeding against him in the manner specified is essential to confer jurisdiction upon the court, and jurisdiction in such a case cannot be acquired, by any act of consent or waiver on the part of an accused person, to try or to convict him of a crime of the character specified where he has not been proceeded against therefor by indictment." Where by constitutional provision the right is given to a person S. Ct. 781; Ex parte McClusky, 40 71, 74, per Pabkeb, J. Fed. 71, 74. 36. People v. Granice, 50 Cal. 447; 34. Citing Hawes Jur., §| 11, 12. State v. Queen, 91 X. C. 659; Rice 35. Ex parte McCIusky, 40 Fed. v. State, 3 Heisk (Tenn.), 215. 36 Constitutional and Statutory Pkovisions. § 32 " to demand the nature and cause of the accusation against him," such right cannot be waived or surrendered by him, and if an indictment is void by reason of the fact that it does not contain such a description of the offense as to notify the accused of the " nature and cause of the accusation against him " an objection thereto may be made at any time.^^ And where a pcTson charged with the crime of burglary with intent to commit murder, con- sented to a mistrial and pleaded " guilty of larceny " and was sentenced to imprisonment in the penitentiary it was held that his confession of being guilty of a crime, warranted no judgment against him.^® And it was here said : " The section of the Bill of Rights declares that ' no person shall be put to answer any criminal charge, except as hereinafter allowed, but by indictment, presentment or impeachment.' And there is no other mode pro- vided in the Constitution for the prosecution of felonies. The judgment pronounced by His Honor was in contravention of this provision of the Constitution, and was therefore without authority and void."^* So where there has been no presentment of a grand jury or bill of indictment, the fact that a person confesses in court to being guilty of a crime which requires an indictment or pre- sentment, confers no power upon the court to sentence him to imprisonment, and he can only be lawfully sentenced after he has been proceeded against in the manner provided in the Constitu- tion.*" Again, where the Constitution of a State specifies the man- ner in which an indictment shall conclude, a compliance therewith is essential to the validity of the indictment and the rights which an accused person has in this respect cannot be waived by him. Thus it has been so held where the Constitution provides that an indictment shall conclude "against the peace and dignity of the State," it being declared that: "An indictment without these words is not an accusation of crime, and not an indictment in the i37. Newcomb v. State, 37 Miss, any other than that presented by the 383; People v. Campbell, 4 Park. Cr. grand jury, where the action of that R. (N. Y.) 386, wherein it is said: body is requisite." Per RtrssELL, J. " This court cannot acquire jurisdic- 38. State v. Queen, 91 N. C. 659. tion to try an offense by consent, nor 39. Per Ashe, J. can its jurisdiction over an offense be 40. State v. Queen, 91 N. C. 659, changed by consent so as to embrace 661. 37 § 33 Constitutional and Statutoet Peovisions. sense of the Constitution. No conviction upon such am indictment could be permitted to stand; and a prisoner cannot waive his rights in this respect, as it is the imperative mandate of the Constitution, that all crimes shall be prosecuted by presentment or indictment, and that all indictments shall conclude ' against the peace and dignity of the State.' "*^ But in a case in New Jersey it is declared that the provisions of the Constitution, that " no person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury," and that " in all criminal prosecutions the accused shall have a right to a speedy public trial by an impartial jury " are placed in the Constitutions under the head of " Eights and Privileges," and are classified with other rights and privileges enumerated in the Constitution. And it is decided that these pro- visions are for the benefit of the accused and are subject to that fundamental rule of law that a person may renounce a provision made for his benefit, and to that maxim, Quilibet protest renun- ciare juri pro se introducto which applies as well to constitutional law as to any other. And the court further held in this case that the constitutional rights of an accused, are not infringed where two modes of preferring a criminal accusation and two modes of trial are provided by law — one by indictment and trial by jury, the other by a vmtten accusation and trial by the court — and the option is given to the accused to have the accusation submitted to a grand jury, with trial by jury, in case an; indictment be found, or to submit to a trial on a written accusation, and by the court vidthout a jury.*^ § 33. Waiver of right to indictment by failure to demand — Misdemeanors — Statute — It may be provided by statute that a person who is accused of a misdemeanor must, in order to avail himself of a right to demand an indictment, make such a demand in "a writing signed by him."** And where in the prosecution 41. Rice V. state, 3 Heisk. (Tenn.) 51 S. E. 596, holding that under the 215, per Sneed, J. Ga. Rev. Code, § 751, which so pro- 42. Edwards y. State, 45 N. J. L. vides, an oral demand made by coim- 419. sel is not sufficient. 43. Shivers v. State, 123 Ga. 538, 38 Constitutional and Statutoet Peovisions. §§ 34, 35 of a person for a misdemeanor the accused person after being fully informed of his rights waives the right to demand his prose- cution by indictment, such waiver caimot be subsequently with- dl'awn by him.** § 34. Congress can not take away right of indictment but may change grade of a crime. — ^Congress has no power to dis- pense with an indictment in the prosecution of those offenses which are infamous. It may, however, in the exercise of the powers conferred upon it change the grade of a crime from that of an infamous one to a misdemeanor, and thus dispense with the neces- sity of an indictment, where the Constitution does not designate the crime as infamous and is silent as to the punishment. So it has been said in a case in which this question is considered : " The power of Congress to reduce a pre-existing felony to the proportion of a misdemeanor exists unquestioned in all cases where the penalty is not fixed by the Constitution. It is, nevertheless, urged under the authority of the fifth amendment of the Constitution that Congress has not the power to dispense with indictment in the process of punishment in this offense, if the offense was in- famous. This proposition involves a confusion of ideas. Congress clearly has not the power to dispense with a grand jury in the punishment of crimes made infamous. It is equally clear that they have the power to reduce a crime from the grade of infamy to misdemeanor in all cases where the Constitution does not pre- scribe the punishment, and pronounce the infamy."*' § 35. State may dispense with indictment — Not restricted by fifth amendment to United States Constitution. — The fifth amendment to the United States Constitution, giving to one ac- cused of a capital or otherwisie infamous crime the right of pre- sentment or indictment by the grand jury, does not restrict the 44. Butler v. State, 97 Ga. 404, 23 State, 67 Ga. 633; Smith v. State, 63 S. E. 822; Brown v. State, 89 Ga. 340, Ga. 168. 15 S. E. 462; Cunningham v. State, 45. United States v. Cross, 1 Mc- 80 Ga. 4, 5 S. E. 251; McConnell v. Arthur (D. C), 149, 151, per Cabtteb, J. 39 35 Constitutional and Statutoet Peovisions. States in the prosecution of such crimes to the common law indict- ments.*® So it has been declared in a case in the United States Cir- cuit Court that : " The Constitution of the United States was not intended to deprive the states of the power to provide for the trial 46. Noles V. State, 24 Ala. 672, wherein it is declared that these pro- visions were demanded by the States, as safeguards against encroachments on the part of the Federal govern- ment. The court said in this connec- tion : " The States, as independent sovereignties, could certainly have protected their own citizens, by their fundamental laws, from the effects of improper legislation by their legisla- tive assemblies; but as the citizens of all the States were to be amenable to the laws of the general govern- ment, when passed in conformity to the powers conferred by the Federal Constitution, over which laws the States, as such, possessed no power, it was deemed essential to the security of the citizens, and to the rights of the States, to place further restric- tions upon the powers of the Federal government as the same is provided for in these amendments. But we are not left to reason and the history of the country alone to sustain our view. The authority of adjudged eases abundantly sanctions it. Per Chilton, J., citing Jackson v. Wood, 2 Cow. 818, n. b. ; Livingston v. The Mayor of New York, 8 Wend. 100; Barron v. The Mayor and City Coun- cil of Baltimore, 7 Peters. Rep. 247. The nrords of Mr. Chief Justice Marshall are of value in this con- nection. It was said by him: " The Constitution was ordained and established by the people of the United States for themselves. for their own government and not for the government of the individual States. Each Siate established a Constitution for itself, and, in that Constitution, provided such limita- tions and restrictions on the powers of its particular government as its Judgment dictated. The people of the United States framed such a govern- ment for the United States as they supposed best adapted to their situa- tion and best calculated to promote their interests. The powers they con- ferred on this government were to be exercised by itself; and the limita- tions on power, if expressed in gen- eral terms, are naturally, and, we think, necessarily, applicable to the government created by the instru- ment. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes. If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as ap- plicable to the States. In their sev- eral Constitutions they have imposed such restrictions on their respective governments as their own wisdom suggested; such as they deemed most proper for themselves. It is a sub- ject on which they judge exclusively, and with which others interfere no farther than they are supposed to have a common interest." Barron v. Mayor and City Council of Balti- more, 7 Pet. (U. S.) 243, 247. 40 Constitutional and Statutory Peo visions. § 36 and punishment of criminal offenses committed; in violation of their laws. These articles of amendment have reference to the powers exercised by the government of the United Sltates and not to those of the States. The first eight articles of amendment are limitations on the powers exercised by the general government, and not exercised by the States." *^ § 36i. State may dispense with indictment — Not restricted by fourteenth amendment to United States Constitution. — It is decided by the United Sltates Supreme Court that an indict- ment by a grand jury is not e&sential tO' that " due process of law," when applied to prosecutions for felonies, which is secured by this provision of the Oonstitution of the United States, and which accordingly it is forbidden by the Sta.tes respectively to dispense with in the administration of the criminal law. In this case it was held that in a prosecution by the State of California for murder an indictment was not necessary and that, where the Constitution of the State provided for the prosecution of felonies by information, and one was: convicted under such an information of murder in the first degree and semteniced to death, the conviction was not illegal as being in violation of the fourteenth amendment which prohibits the States from depriving any person of his life, liberty or property without due process of law.** In line with this conclusion also is an early decision in Cali- fornia,*® and also in Wisconsin.®" In this latter case the court said, in speaking of the fourteenth amendment: "But its design was not to confine the States to a particular mode of procedure in judicial proceedings, and to prohibit them from prosecuting for felonies by information instead of by indictment, if they chose to abolish the grand jury system. And the words ' due process of law ' in the amendment do not mean and have not the effect to limit the powers of State governments to prosecutions for crime by indictment ; but these words do mean law in its regular course 47. Williams v. Hert, 110 Fed. 166, 49. Kalloek v. Superior Court, 56 168, per Bakee, J. Cal. 229. 48. Hurtado v. California, 110 U. 50. Eowan v. State, 30 Wis. 129 S. 516, 4 S. Ct. Ill, 292. 41 § 36' Constitutional and Statutoey Pbo visions. of administration, according to preecribed forms, and in accord- ance with the general rules for the protection of individual rights. Administration and remedial proceedings must change, from time to time, with the advancement of legal science and the progress of society ; and, if the people of the State find it wise and expedient to abolish the grand jury and prosecute all crimes by information, there is nothing in our State Constitution and nothing in the Fourteenth Amendment to the Constitution of the United States which prevents them from doing so."** So the court says in a case in Missouri, where this question is considered: " That it was entirely competent for the people of Mis- souri to provide that felonies might be prosecuted by informa- tion without infringing the Constitution, we entertain no doubt whatever. The fourth, fifth and sixth amendments to the Consti- tution] of the United States are limitations only upon congressional power, and not upon the several States, and it has been ejq)ressly held by the Supreme Court of the United Sitatesi, that a State Constitution authorizing prosecutions for felonies on information rather than by indictment was not a denial of due process of law within the meaning of the fourteenth amendment to the Constitu- tion of the United States.""* So in a case in Colorado it is decided that the Legislature may provide for the prose- cution of a felony by information instead of by indict- ment and a prosecution in this manner is due process of law within the meaning of both the State and Federal Consti- tutions. '** The court in this case said: "Due process of law within the meaning of these constitutional provisions undoubtedly includes ' law in its regular course of administration throu^ courts of juaitice ;' it also implies that any individual whose life, liberty or property may be affected by any judicial proceeding shall have timely notice thereof, and reasonable opportunity to be heard in defense of his rights ; but it does not necessarily include an in- dictment by a grand jury for a felony, even though such prosecu- 51. Per Cole, ,J. 516, 4 S. Ct. Ill, 292; Hodgson v. 52. State v. Jones, 168 Mo. 398, Vermont, 168 U. S. 262, 18 S. Ct. 80. 402, 68 S. W. 566, per Gantt, J., eit- 52a. In re Dolph, 17 Colo. 35, 28 ing Hurtado v. California, 110 U. S. Pac. 470. 42 CONSTITTTTIONAL AND StATUTOEY PROVISIONS. § 37 tion may deprive the accused of his life or liberty. While ancient forms of procedure are not to be lightly set as.ide or disregarded, modem judicial utterances as well as modem Constitutions and laws evince more regard for substance than for form.'"'^'* § 37. State may dispense \with indictment — Not restricted by United States Constitution — The generally accepted rule is that the United States Constitution and amendments thereto are in no way a restriction upon the power of the individual States to dispense with an indictment in eases of capital or otherwise infamous crimes, and tbat the provisions of the Constitution securing to a person so accused the right to an indictment and pro- viding that no person shall be deprived of bis life, liberty or prop- erty without due process of law are not violated by State legisla- tion providing for the prosecution of such crimes by informa- tion.»* 52b. Per Elliott, J. 53. United States. — Davis v. Burke, 179 U. S. 399, 21 S. Ct. 210, 45 L.Ed. 241; BoUn v. Nebraska, 176 U. S. 83, 20 S. Ct. 287, 44 L. Ed. 382; Hodgson v. Vermont, 168 U. S. 262, 18 S. Ct. 80, 42 L. Ed. 461; Mc- Nulty V. California, 149 U. S. 649, 13 S. Ct. 959, 37 L. Ed. 882; Vincent v. California, 149 U. S. 648, 13 S. Ct. 960, 37 L. Ed. 884; United States v. Petit, 114 U. S. 429, 5 S. Ct. 1190, 29 L. Ed. 93; Williams v. Hert, 110 Fed. 166; In re Humason, 46 Fed. 388. Connecticnt. — State v. Keena, 64 Conn. 212, 29 Atl. 470. loiva. — State v. Wells, 46 Iowa, 662. Kansaa. — State v. Barnett, 3 Kan. 250, 87 Am. Dec. 471. Kentucky. — Jane v. Common- wealth, 3 Mete. (Ky.) 18. Iionisiana. — State v. Smith, 21 La. Ann. 574. Mls»ouri.— State v. Rudolph, 187 Mo. 67, 85 8. W. 584; State v. Jones, 168 Mo. 398, 68 S. W. 566. Nebraska. — Hawkins v. State, 60 Neb. 380, 83 N. W. 198; Bolln v. State, 51 Neb. 581, 71 N. W. 444; State V. Miller, 43 Neb. 860, 62 N. W. 238; Mill V. State, 29 Neb. 437, 45 N. W. 451. New Tork. — People v. Scannell, 37 Misc. R. 345, 75 N. Y. Supp. 500; Murphy v. People, 2 Cow. 815 ; Jack- son V. Wood, 2 Cow. 819. Ohio.— Prescott v. State, 19 Ohio St. 184, 2 Am. Rep. 388. Oregon. — State v. Guglielmo, 46 Ore. 250, 80 Pac. 103, 79 Pae. 577. Texas. — Pitner v. State, 23 Tex. App. 366, 5 S. W. 210. IJtali. — In the matter of the appli- cation of C. L. Maxwell for a Writ of Habeas Corpus, 19 Utah, 495, 57 Pac. 412. Vermont. — State v. Stimpson, 78 Vt. 124, 62 Atl. 14, 1 L. R. A. (N. S.) 1153; State v. Leach, 77 Vt. 166, 59 43 §§ 38, 39 Constitutional and Statutoey Provisions. § 38. State may dispense with indictment — Not restricted by adoption of United States Constitution. — The fact that it is provided in the Constitution of a State that the United States Constitution is the Supreme law of the land doesi not operate to make the provisions of the latter instrument parts of the State Constitution/* so as to require an indictment or presentment by a grand jury for an oflFense within the jurisdiction of the State court.^^ So the fact that a Sttate upon its admission, into the Union adopts the Constitution of the United States as its funda- mental law does not render a provision of the Sltate Constitution permitting prosecution for felony by information unconstitutional as in violation of the fourteenth amendment to the United States Constitution.®® § 39. Where indictment and information concurrent remedies — May proceed by information though grand jury in session. — Where by statute the two modes of procedure, indictment and in- formatio'ii, are made concurrent remedies an information is not rendered invalid because at the time it was filed there was a grand jury of the county in session.®'^ So in Louisiana it is decided that the prosecution of offenses not capital, may, under the Constitution and laws of that State, be prosecuted by indictment or information in the discretion of the district attorneys, and that such discretion cannot be affected by the fact that the grand jury may be in session. And it is also Atl. 168; state v. Keyes, 8 Vt. 63, 30 Am. Dec. 450. IVasIiiiigtozu — State v. Nord- strom, 7 Wash. 506, 35 Pac. 382; Ly- barger v. State, 2 Wash. S52, 27 Pac. 449, rehearing denied in 2 Wash. 564, 27 Pac. 1029. 'Wisconsin. — In re Ferdinand Ber- gin, 31 Wis. 383, citing and following Rowan v. State, 30 Wis. 129. 54. People v. Nolan, 144 Cal. 75, 77 Pac. 774. 55. In re Rafferty, 1 Wash. 382, 25 Pac. 465. 56. Bolln V. Nebraska, 176 U. S. 83, 20 S. Ct. 287, 44 L. Ed. 392. The court said : " We have repeatedly held the Fourteenth Amendment was not intended to curtail the powers of the States to so amend their laws as to make them conform to the wishes of their citizens, to changed views of administration, or to the exigencies of their social Ufe." Per Mr. Justice Bbown. 57. People v. Ebanks, 120 Cal. 626, 52 Pac. 1078. 44 Constitutional and Statutoey Provisions. § 40 decided that such, discretion is not subject to the control of the courts, though it is provided by statute that such offenses may be prosecuted " by information, with the consemt of the court first obtained." «» § 40. Powers of territorial government to dispense with in- dictment. — Residents under a territorial government are subject to, and entitled to the protection of, the laws of the United States and it has been determined that the amendments to the Federal Constitution securing to a person accused of a capital or otherwise infamous crime the right of prosecution by indictment applies to such persons.®® So the provision of the United States Revised statutes that " The legisilative power of every Territory shall ex- tend to all rightful subjects of legislation (not inconsistent) with the Constitution and laws of the United States," ®** is held to be a limitation upon the legislative power of the territories and to be tho organic law which must govern them. Under this pro- vision and also the one providing that " The Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within all the organized terri- tories," etc., " as elsewhere in the United States," and also the further provision that " The Congress shall have full power to dispose of and make all needful rules and regulations respecting the territories,"®^ it has been decided that the fifth amendment to the United States Constitution applies to the territories and that a territorial act providing for the prosecution by information of any offense embraced in such amendinent is in violation of the Constitution and void.*^ But where the laws of a territory required that all public offenses with certain exceptions 58. State v. Cole, 38 La. Ann. 843. Utah, 38, 57 Pae. 532; MoCarty v. See State v. Woods, 31 La. Ann. 267, State, 1 Wash. 377, 25 Pae. 299, 22 as to prosecution for offenses not capi- Am. St. R. 152. tal by information. And see, also, 60. § 1851 U. S. Eev. St. State V. Newton, 30 La. Ann. 1253; 61. § 1891, U. S. Rev. St.; § 3, art. State V. Anderson, 30 La. Ann. 557; 4, U. S. Const. State V. Maxwell, 28 La. Ann. 361. 62. Territory of Arizona v. Blom- 59. State v. Kingsley, 10 Mont, berg, 2 Ariz. 204, 11 Pae. 671. 537, 26 Pae. 1066; State v. Rock, 20 45 § 41 CoiifSTITUTIONAL AND STATtTTOKT PkOVISIONS, should be prosecuted by indictment it was decided that a prosecution for larceny which was not within the exceptiona must be by indictment as this was an infamous crime under the laws of the territory and that the provision of the United States statutes®^ that all crimes and offenses against the provisions of a certain act,** specifying offenses against the revenue, pofital and marine law and by persons holding a fiducdaxy relation, with the United States, including larceny, which were not infamous might be prosecuted either by indict- ment or information did not apply.** And it has been decided that the constitutional and statutory provisions of the United States requiring an indictment by a grand jury do not apply to the prose- cution of a Cherokee Indian for murder committed upon the per- son of another within the jurisdiction of the Cherokee nation, but that such offense is one agaiiist the local laws of the Cherokee nation, and to be prosecuted in accordance with the laws of that nation.*® § 41. A constitutional provision as to indictment gives no vested right — California case. — [n California it has been decided that a constitutional provision that no person shall be held to answer for a capital or otherwise infamous crime unless on pre- sentment or indictment of a grand jury is not to be construed as giving a vested right to prosecution on presentment or indictment, but rather has reference to a mode of procedure or remedy. In the case in which this doctrine was enunciated it was also decided, in line with the above conclusion, that though an offense was committed when such a provision as above was in force, yet if a constitutional provision was subsequently passed! providing for prosecution of the offense by information, the accused could be proceeded against by information.*'' The court in this case quotes 63. § 1022. 67. Pieople v. Campbell, 59 Cal. 64. Cli. 1, Rev. St. U. S., title 243, 43 Am. Rep. 257. The constitu- " Crimes." tional provision in force -when the of- 65. Williams v. United States, 4 fense was committed was as follows: Ind. Terr. 204, 69 S. W. 849. " No person shall be held to answer 66. Talton v. Mayes, 163 U. S. for a capital or otherwise infamous 376, 16 S. Ct. 986, 41 L. Ed. 196. crime . . . unless on present- 46 COKSTITTTTIONAL AND StATUTOET PeOVISIONS. § 41 from Mr. Cooley in his work on Constitutional Limitations aa follows : " But so far as mere modes of procedure are concerned, a party has no more right in a criminal than in a civil action to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place. Remedies must always be under the control of tlie Legislature, and it would create endless confusion in legal proceedings, if every case was to be conducted only in accordance with the rules of practice, and heard only by the courts in existence when its facts arose. The Legislature may abolish courts and create new* ones, and it may prescribe altogether different modes of procedure, though it cannot lawfully, we think, in so doing, dispense with any of these su'b- stantial protections with which the existing law surrounds the person accused of crime. Statutes giving the government addi- tional challenges, and others which authorized the amendment of indictments, have been sustained and applied to past transactions, as doubtless would be any similar statute, and in its operation working no injustice to the defendant, and depriving him of no substantial right." ** The court then said : " On principle and authority, we think, there can be no objection to the new remedy prescribed by the Constitution and act of the Legislature. It was competent to introduce the prosecution by information and to make the same applicable to past offenses, as it was to establish a new forum in which prosecutions for past offenses should take place." ®® The court also considered the question whether it was intended to make the provisions applicable only to future offenses, and said in this connection : " N"6ither the Constitution nor the Act of ment or indictment of a grand jury." of this latter provision an act was By the Constitution which went into passed by the Legislature providing effect after the commission of the that "All public offenses triable in crime it was provided that " Offenses the Superior Court shall be prose- heretofore required to be prosecuted cuted by indictment or information, by indictment shall be prosecuted by except as provided in the next see- information after examination or tion." commitment by a magistrate, or by 68. Cooley on Constitutional Lim- indictment with or without such ex- itations, p. 331. amination and commitment, as may 69. Per Mobbison, J. be presented by law." In pursuance 47 I 42 COU^STITUTIONAL AND StATUTOEY PROVISIONS. the Legislature, expressly or by legal inference, refers to future offenses only, but the terms of the Constitution, as well as the Act of the Legislature, by their natural import and signification, apply to all prosecutions thereafter to take place, without reference to the time when the act was committed. We can see no good reason why an act previously committed must be prosecuted by indict- ment, and one subsequently committed may be prosecuted by indict- ment or information, and, in our opinion, there is nothing in the provisions referred to which would justify such a construction. We are, therefore, of opinion that the case is one in which an information was a proper mode of prosecution." '''* § 42. A constitutional provision as to indictment gives no vested right — Missouri case. — It has been dfecided in Missouri that an amendment to the Constitution making indictment and information concurrent remedies will authorize the prosecution by information of a felony which was committed before the amend- ment went into effect, and it is not as to such offense to be con- sidered as an ex post facto law, but rather as simply providing for a change in the mode of procedure. The court in this case re- ferred to the definition of an ex post facto law which we note herein, and said : " Under this definition of an ex post facto law, the amendment, although providing for another mode of pro- cedure for the prosecution of felonies than by indictment does not fall within the meaning of an ex post facto law as thus de- fined, for it does not make an action done before its adoption criminal, nor does it ag'gravate the crime or in any way affect it, nor ebange the punishment nor alter the rule of evidence, but, as has been said, goes merely to the mode of procedure. The mode of investigating the facts remains as before, and this through a trial by jury of defendant's own choosing, surrounded by certain safeguards guaranteed to him by the laws of the land which cannot be dispensed with." ''^ 70. Per MoBBisoN, J. from Calder v. Bull, 3 Ball. (U. S.) 71. State V. Kyle, 166 Mo. 287, 386, as to what are ex post facto 305, 65 S. W. 763, 56 L. K. A. 115, laws; ex post facto laws are per BuBGESS, J., quoting as follows said to be : " First. Every law 48 CONSTITXJTIOITAL AND StATUTOEY PeOVISIONS. § 43 § 43. Whether a constitutional provision as to indictment gives vested right — Conclusion. — ^Tlie oases cited in the two pre- ceding sections ''^ are authority for the proposition that though the right to prosecution by indictment is given to an accused) person by the constitution of the State, yet though a crime re- quiring indictment may be committed while such provision is in force, yet, if the Constitution is subsequently amended so as to permit of the prosecution of such a crime by information, the amendment will apply in that case and the accused person may be prosecuted by information, it being declared that the original provision of the Constitution gave no vested right to prosecution by indictment, but merely prescribed a mode of procedure and that the amendment is not as to such offense an ex post facto law. It is rather difficult to harmonize these cases with the generally accepted rule as to the power of the Legislature to prescribe the form of an indictment, it being generally held that the Legislature has the power to prescribe the form but must not dispense with material averments or provide for the prosecution of offenses in a manner other than that specified. Yet Mr. Cooley, who is quoted in both of the above cases, says that remedies and modes of prooedtire are always under the control of the Legislature. ''* Assuming this to be true, if we accept the conclusion in the above-mentioned cases that the Constitution gives no vested right, but merely prescribes a mode of procedure, why may not the Legislature change the mode prescribed, and if it has the power to do so, what guaranty does such a constitutional provision give? Does the same provision give a vested right for some purposes and merely prescribe a mode that makes an action done before ters the legal rule of evidence, and the passing of the law, and which receives less or different testimony, was innocent when done, criminal and than the law required at the time punishes such action. Second. Every of the commission of the offense, in law that aggravates a. crime, or order to convict the offender." makes it greater than it was when 72. People v. Campbell, 59 Cal. committed. Third, Every law that 243, 43 Am. Rep. 257; State v. Kyle, changes the punishment, and inflicts 166 Mo. 287, 65 S. W. 763, 56 L. R. a greater punishment than the law A. 115. annexed to the crime when com- 73. See preceding section, mitted. Fourth. Every law that al- 49 § 44 Constitutional and Statutoey Peovisions, of procedure for others. We cannot help but disagree with the conclusion reached in these cases and are of the opinion that where a constitutional provision requiring indictment in certain cases is in force at the time a crime, within the cases specified, is com- mitted, the person accused of such crime has a vested right to be prosecuted by indictment and is nob subject to the application of an amendment to the Constitution adopted after the commission of the crime and which provides for, or permits of, the prosecution of such crime by information. So it has been said by the United States Supreme Court : " Can the law with regard to bail, to indictments, to grand juries, to the trial jury, all be changed to the disadvantage of the prisoner by State legislation after the offense was committed and such legisla- tion not be held to be ear post facto because it relates to procedtire \ And can any substantial right which the law gave the defendant at the time to which his guilt relates be taken away from him by ex post facto legislation, because, in the use of a modem phrase, it is called a law of procedure ? We think it cannot."'''^ § 44. Crime committed before admission of Territory as State — Right to prosecute by information. — ^Where an offense is committed durir^ the existence of a territorial government, the residents thereof are subject to the laws of the United States and entitled to the rights given by those laws, one of which is the right that a person shall not be held for a capital or otherwise infamous crime unless on a presentment or indiictment of the grand jury, and where an offense is committed during the exist- ence of the territorial government the right of a person to prose- cution by indictment or presentment of a grand jury, cannot be affected by a provision of the Constitution of the State, where it is subsequently admitted as a State, providing that all criminal actions in, a certain court shall be prosecuted by information. To hold otherwise would give such an act a retrospective operation.'* 73a. Kring v. Missouri, 107 U. S. 74. State v. Kingsley, 10 Mont. 221, 2 S. Ct. 443, per Mr. Justice 537, 26 Pac. 1066. Milled. 50 Constitutional and Statutory Peovisions. § 45 So, in Utah it has been decided that one who was charged with the commission of a crime, prior to the admission of the State, had the constitutional right, under the laws of Congress and the territorial laws then in force, to have his case brought before a grand jury and a presentment by indictment of that body in ac- cordance with the laws then in force, and could not be prosecuted by information as provided by the laws of the State after its admissionJ^ The court said briefly and to the point in this case : " To hold that a State could deprive the accused of his liberty by examination before a magistrate by the filing of an information by the prosecuting attorney, without the presentment of an indict- ment found by a grand jury, for an offense committed while Utah was a Territory and under the laws of Congress, would be to recognize in a Sltate power to do that which Congress could not do by legislation, and the right to take from the accused a constitu- tional right whiehi belonged to him when the offense was com- mitted." '* And in the first case in which this question arose in Washington it was decided that a person accused of grand larceny prior to the admission of that State into the Union was entitled to the guaranty of the United States Constitution of presentment by a grand jury, and could not be prosecuted by information under the provisions of the State Constitution and legislative acts author- izing such a proceedings^ But in a later case in Washington, it has been decided that a law changing the mode of procedure in prosecution for crime from an indictment to an information, does not contain any of the elements, or respond to any of the accepted definitions of an ex post facto law, although the offense under prosecution may have been committed prior to such change in the law, and before the admission of the Territory to Statehood. ''* § 45. Legislature may prescribe form of indictment — General rule. — ^It is a generally accepted rule that the Legklature has 75. State v. Rock, 20 Utah, 38, 57 78. Lybarger v. State, 2 Wash. Pac. 532. 552, 27 Pac. 449, 1029. See, also, 76. Per Minee, J. State v. Hoyt, 4 Wash. 818, 30 Pac. 77. MeCarty v. State, 1 Wash. 1060, citing and following the above 377, 25 Pac. 299, 22 Am. St. Rep. 152. case. 51 § 46 Constitutional and Statutoet Peovisions. power, subject to certain limitations,'^® to prescribe the form of an indictment,** and in so doin^ it is decided that the Legislature may dispense with mere matters of form,*^ or with ave'rments which would be held necessary and essential to a good common law in- dictment.*^ So a form of indictment prescribed by statute or code has been held sufficient, though it does not require a recital of the oath of the grand jurors.** § 4:6. Limitations on power of Legislature to prescribe form of indictment. — While the Legislature undoubtedly has authority to abbreviate and simplify, and to a certain extent modify and change the forms of indictments, yet its authority in this respect is limited, and it cannot make an indictment valid and sufficient in which the accusation is not set forth with sufficient fullness to enable the accused to know with reasonable certainty what the matter is which he has to meet, and enable the court to see, without going out of the record, that a crime has been committed.** And where it is provided by the Constitution that a person shall be exempt from answering any criminal charge except on indictment or information, such provisions place it beyond the power of the Legislature to dispense with the statement in the indictment of that which is essential to the description of the offense.*" 79. See following section. Vermont. — State v. Noakes, 70 80. TTnited States. — Caldwell v. Vt. 247, 40 Atl. 249; State v. Corn- Texas, 137 U. S. 692, 11 S. Ct. 224, stock, 27 Vt. 553. 34 L. Ed. 816. 'Wisconsin. — See State ex rel. Alabama.— Noles v. State, 24 Ala. Welch v. Sloan, 65 Wis. 647, 27 N. 672. W. 616. Louisiana.— State v. Mullen, 14 81. Mott v. State, 29 Ark. 147, La. Ann. 570. 149. , Maine. — State v. Corson, 59 Me. 82. State v. Morgan, 112 Mo. 202, 137. 20 S. W. 456. Missonri. — State v. Morgan, 112 83. State v. Guglielmo, 46 Ore. Mo. 202, 20 8. W. 456. 250, 79 Pac. 577, 80 Pac. 103. Nevada.— State v. O'Flaherty, 7 84. State v. Maee, 76 Me. 64. Nev. 153; State v. Millain, 3 Nev. 85 State v. Duke, 42 Tex. 455, 409, 438. holding that where, by statute, the Ohio. — Williams v. State, 35 Ohio carrying of concealed weapons is, ex- St. 175; Wolf V. State, 19 Ohio St. cept in certain cases, a criminal of- 248; Lougee v. State. 11 Ohio, 68. fense, the indictment should negative 52 Constitutional and Statutoet Peovisions. § 46 And it has been said in this connection : "We do not doubt the power and right of the Legislature to prescribe, change or modify the forms of process or proceedings in: all civil actions, and to determine what shall be deemed a sufBeiemt allegation, in form or substance to bring liie merits of a case before the court. But, in criminal prosecutions, the exercise of this right is limited and controlled by the paramount law in the Constitution. It has for centuries since the declaration in Magna Charta, been the boast of the common law, that it protects with jealous care the rights of the accused. It not only secures a speedy and impartial trial by jury, but it requires that no person shall be held to answer, until the accusation against him is formally, fully and precisely set forth, — ^that he may know of what he is accused, and be prepared to meet the exact charge against him. This right of the. respondent has ever been regarded as sacred and essential to the protection of the individual citizen. In all the changes of forms, and in thci prin- ciples and practice of the law, this right has remained untouched and unchanged. * * * Will any one maintain that the Legis- lature might di'spense with a written accusation, or enact that any written charge, however vague or indefinite in its temns, should be sufficient? That, for instance, a general charge, that the ac- cused had violated the law, should be sufficient to hold a man to answer to any crime, from a simple assault to murder? We do not intend to say that the Legislature may not modify or simplify the forms in criminal proceedings, providing the essential matters which clearly set forth an offense are retained."®® So in a case in Missouri, where the constitutional provisions that a prose- cution must be by indictment and that " in criminal prosecu- tions the accused shall have the right to demand the nature and cause of the accusation," were construed by the court it was said in this connection : " This prosecution is by indictment and it is everywhere held, under like constitutional provisions, that that the weapon was carried under for selling liquor, that it was sold the circumstances allowed; Hewitt "without having obtained a license V. State, 25 Tex. 722, holding that therefor." the Legislature could not dispense 86. State v. Learned 47 Me. 426 with the averment, in an indictment 432, per Rent, J. 53 § 47 Constitutional and Statutoey Peovisions. the Legislature may prescribe a form of indictment, and in doing so may dispense with, averments which would 'be held necessary and essential to a good common law indictment. The limitation and only limitation is that the indictment must furnish to the accused 'the nature and cause of the accusation.' It is a sacred right to the accused that he may know from the indictment of what he is charged, and be prepared to meet the exact charge pre- sented against him." *^ And this dk>ctrine is affirmed in other decisions.®* § 47. Same subject continued — The Legislature cannot by law authorize the courts to dispense with the allegation in indict- ments for penal offenses of a material fact, which, under the law alleged to have been violated, forms the main ingredient, or is the gist of the offense.®® And where a statute imposes a higher penalty where a person is convicted of an offense for which he has been convicted before, the offense which is so punishable is not fully and substantially described to the accused, if the former convictions are not set forth and a statutory provision that it shall not be necessary, in an indictment or complaint thereunder, to allege such previous convictions, is inoperative and void as being in vio- lation of a provision of the Declaration of Rights or Constitu- tion of the State that no one shall be held to answer for any 87. State v. Morgan, 112 Mo. 202, of form, the substance of a good com- 20 S. W. 456. See, also. State v. mon law indictment should be pre- Terry, 109 Mo. 601, 19 S. W. 206, served. If one matter of substance wherein it was declared that an in- may be dispensed with, another may dictment means just what it did at be, and where is the limit to innova- common law. The Legislature may tions?" Mott v. State, 29 Ark. 147, change it in form but cannot change per English, J. the substance of material averments, " It is quite competent for the without infringing upon constitu- Legislature to prescribe what shall tional guaranties. be the form of an indictment in a 88. " Indictment is a common law given case, provided in so doing they term, and the courts have necessarily do not contravene any constitutional to look to the common law to ascer- provision." State v. Comstock, 27 tain its meaning. And whilst we do Vt. 553, per Bennett, J. not doubt the power of the Legisla- 89. Hewitt v. State, 25 Tex. 722. ture to dispense with mere matters 54 Constitutional and Statutoey Provisions. § 48 crimes or offense until the same is fully and plainly, substantially and formally, deecribed to him.®" So, though, the Legislature may prescribe the form of an indictment or information', the fact that it has seen fit to call an affidavit an information, does not make it one, nor confer on it either the form or functions of an infor- mation;*^ ;§i 48'. Power of Legislature to dispense with indictment where provided for by State Constitution. — The power of the Legisla- ture in all matters must be exercised in conformity with the re- strictions and limitations imposed by the Constitution of the State, and where it is provided by that instrument that a person accused of certain offenses shall be prosecuted by indictment tbe Legis- lature has no power, in the absence of some constitutional provi- sion conferring it, to dispense with the necessity of an indictment in such cases.^^ So, in a case in Ohio, though this question was not directly before the court, it was said, in referring to the right secured by a constitutional provision that "no person shall be put to answer any criminal charge but by presentment, indictment or impeachment." " It ia true that no person can be put to answer any criminal charge, but by presentment, indictment, or impeachment. An individual accused of a crime cannot be com- pelled to answer the charge until the same has been made through the intervention of a grand jury, in the form of a presentment or indictment Should the Legislature pass an act to compel an individual to answer, without this prerequisite, such act would be in violation of the Constitution, and void. No such power is, as I 90. Commonwealth v. Harrington, Minjiesota. — Davis v. Pierse, 7 130 Mass. 35. Minn. 13, 82 Am. Dee. 65. 91. State V. Briscoe, 80 Mo. 643; Missonri. — State v. Morgan, 112 State V. Kockwell, 18 Mo. App. 395. Mo. 202, 20 S. W. 456. 92. Arkansas. — ^Mott v. State, Nevada. — Ex parte Dela, 25 Nev. 29 Ark. 147. 346, 60 Pac. 217. Maine. — State v. Learned, 47 Me. Vermont. — State v. Noakes 70 426. Vt. 247, 40 Atl. 249. Massacbnsetts. — Commonwealth r. See cases cited in § 46 herein: Horregan, 127 Mass. 450. " Limitations on power of Legisla- ture to prescribe form of indictment." 55 § 49 Constitutional and Statutoet Peovisions. believe, claimed by any of the numeroua advocates for legislative supremacy."*^ So a statute which purports to give an inferior tribunal jurisdiction to impose the punishment of imprisonment in the State prison, which is an infamous punishment, without pre- sentment by a grand jury, is unconstitutional and void.®* And where the Constitution of a State secured to a person accused of a criminal offense the right to be prosecuted by presentment or in- dictment of a grand jury, it was held that an act entitled, "An act suspending the privilege of all persons aiding the rebellion against the United States, of prosecuting and defending actions and judi- cial proceedings in this State," passed by the Legislature, was unconstitutional and void.*^ § 49. Indictment essential to jurisdiction where Constitution requires prosecution by. — This right of a person to prosecution by indictment where given by the Constitution of a State is a prerequisite to the jurisdiction of the court to try an accused person. It is one of the indispensible conditions and require- ments, the absence of which renders the action of a court in trying one for a crime requiring an indictment not only voidable but absolutely void. So where a person was indicted charged with committing the crime of murder in the perpetration of rape and was tried therefor and convicted of the crime of rape and sen- tenced therefor, it was decided that the court had no jurisdiction to sentence and imprison him for the latter crime where it was provided by the Constitution of the State that no person should be tried for a capital or otherwise infamous crime except on pre- sentment or indictment of a grand jury. It was said in this case: 93. Lougee v. State, 11 Ohio, 68, giving similar power to judges of po- 70, 71, per Hitchcock, J. lice, district, and municipal courts. 94. Commonwealth v. Horregan, See, also, Nolan's Case, 122 Mass. 127 Mass. 450, so holding in the case 330. of a statute by which it was at- 95. Davis v. Pierse, 7 Minn. 13, 82 tempted to give power to judges of Am. Dec. 65, followed in Jackson v. probate courts to try juvenile offend- Butler, 8 Minn. 117; McFarland v. ers for offenses which were punish- Butler, 8 Minn. 116; Keough v. Mc- able by an infamous punishment, and Nitt, 7 Minn. 30; Wilcox v. Davis, 7 also so holding as to similar statute Minn. 23. 56 Constitutional and Statutory Peovisions. § 50 " Can it even be pretended that tke court, in the face of these direct and prohibitive terms of the Constitution, could render a valid judgment of imprisonment for an offense of which it has jurisdiction, without presentment or indictment charging the particular offense? Would not the action of the court in such proceeding be utterly void, because of excess of jurisdiction, and because it deprived a party of his liberty without due process of law ? The question involved is not- one of irregularity, growing out of rules of procedure, but is one of substantive law, based upon the direct terms of a constitutional guaranty." ®® § 50. Conviction for assault under indictment for man- slaughter — Ex post facto law — New York case. — ^A person who has been indicted by the grand jury for assault in the second degree cannot under such indictment be convicted of assault in any degree under an amendmeoit to the code of criminal procedure providing that " Upon a trial for murder or manslaughter, if the act complained of is not proven to be the cause of death, the defendant may be convicted of assault in any degree constituted by said act, and warranted by the evidence," ^^ where such amend- ment, though operative at the time of the trial, was not passed until after the indictment in question was found by the grand jury. To apply the amendment to such indictment would operate to give it an ex post facto effect and would also be in violation of the constitutional provision that " no person shall be held to answer for a capital or otherwise infamous crime * * * ^m- less on presentment or indictment of a grand jury." ^* The court said : " The effect of applying this amendment to all indictments pending at the time it became a law, is evidently to deprive the parties named therein of this constitutional right, so far as their trial and conviction for the assault named tJierein is concerned. It cannot, therefore, be considered that it was the legislative intent to work such a direct violation of constitutional rights as such a retroactive application would effect. It is rather 96. Ex parte Dela, 25 Nev. 346, Cr. Proe. Laws 1900, ch. 625. 60 Pac. 217, per Massey, J. 98. People v. Cox, 67 App. Div. 97. Amend, to § 444 N. Y. Code (N. Y.) 344, 73 N. Y. Supp. 774. § 51 CoWSTrTTJTIONAL AND StATUTOET PeOVISIONS. to be held that it was intended to apply only to cases arising after and under it, and in which it could be enforced' without violating any constitutional or other rights." ** § 51. Legislature may dispense with indictment where author- ized by Constitution. — In some States^ though the Constitution provides for indictment in the case of certain crimes, power is also conferred by such instrument upon the Legislature to change, regulate or dispense with the grand jury system and where the Legislature is so authorized it may provide for the prosecution of offenses by information, though they may be within the class of offenses for the prosecution of which an indictment was necessary under the Constitution.^ So in Wyoming this question is con- sidered where it was provided by the Constitution of the State that " the Legislature may change, regulate or abolish the grand jury system," and that " until otherwise provided by law no per- son shall for a felony be proceeded against criminally otherwise than by indictment,"^ and it was decided that a statute providing for prosecution by information was constitutional. The court said : " The intention appears clearly in our Constitution that there should be no constitutional guaranty of a presentment or in- dictment of a grand jury, and that nothing should impede the right of the Legislature to change, regulate or abolish the grand jury system."* 99. Per Paekee, J. North. CaroUnA. — State v. Thom- 1. Alabama.— Witt v. State, 130 ton, 136 N. C. 610, 48 S. E. 602; Ala. 129, 30 So. 473; Ala. Const., State v. Crook, 91 N. C. 536; No. Car. art. 1, § 9. Const., art. 1, § 13; art. 4, § 27. Colorado. — In Matter of Consti- Oregon. — State v. Guglielmo, 46 tutionality of House Bill No. 158, 9 Ore. 250, 79 Pac. 577, 80 Pac. 103; Colo. 625; Colo. Const., art. 2, § 8; Ore. Const., art. 7, § 18. see, also. In re Dolph, 17 Colo. 35, 28 South Dakota. — State v. Ayers, Pac. 470, cited and followed in Nesbit 8 S. D. 517, 67 N. W. 611. V. People, 19 Colo. 441, 36 Pac. 221; 'Wyoming. — In re Wright, 3 Wyo. Jordan v. People, 19 Colo. 417, 36 478, 27 Pac. 565, 31 Am. Rep. 94, 13 Pac. 218. L. R. A. 748. Nebraska. — Bolln v. State, 51 2. Const. Wye, art. 1, i§ 9, 13. Neb. 881, 71 N. W. 444; Neb. Const., 3. In re Wright, 3 Wyo. 478, 27 § 10, art. 1 ; Mill v. State, 29 Neb. Pae. 565, 31 Am. Rep. 94, 13 L. R. A. 437, 45 N. W. 451. 748, per Geoesbeck, J. 58 Constitutional and Statutory Peovisions. § 52 And in a later case in this State it is declared that : " It ia now too late to challenge procedure by information as not ' due process ' of law under the constitutional provisions relating thereto. The matter has been before this court, and our decision sustain- ing such a procedure is upheld by an overwhelming weight of authority, if not by all of the precedents." * And where power is conferred by the Constitution 'upon the Legislature to modify or abolish the grand jury system, an act of the Legislature providing merely for the prosecution of criminal offenses by informationi instead of by indictment as required by a constitutional provision referring to that class of offense is not in violation of such pro- vision. The fact that the Legislature has not absolutely abolished grand juries does not still confer the constitutional right upon an individual to demand and require that the accusation against him be by indictment of a grand jury.® § 521. Whether constitutional provision for prosecution by information instead of indictment is self-executing. — The ques- tion whether a constitutional provision authorizing the prosecu- tion of offenses by information instead of indictment, or making indictment and information concurrent remedies is self-executing, is one upon which the decisions, which are few, are not in harmony. In Montana it has been decided that an accused person is en- titled to the right of prosecution for a felony by indictment, though the Constitution of the State may provide that all criminal actions in a certain court shall be prosecuted by information, where it appears that there has been no legislation to set in motion the provisions of the Constitution, it being declared that such, a provi- sion is not self-executing. The court said that the contention in such a case that the same result is attained by the express adoption ■of the common law in England when the same " is applicable and not in conflict with special enactments" is not sound, as the 4. In re Boulter, 5 Wyo. 329, 40 Hurtado v. California, 110 U. S. 516, Pae. 520, per Gboesbeck, J., citing 4 S. Ct. Ill, 292. In re Wright, 3 Wyo. 478, 27 Pae. 5. State v. Tucker, 36 Ore. 291, ^65; Eouen y. State, 30 Wis. 129; 61 Pae. 894, 61 L. B. A. 246. 59 § 52 Constitutional and Statutoey Peovisions. remedy at common law did not embrace felonies.* But a constitu- tional provision that " no person sliall be beld to answer for any felony or criminal offense of any grade, unless on presentment or indictment of a grand jury, or on information of the public prose- cutor, after a commitment by a magistrate," which, provision was similar to that in tbe Montana case just referred to, has been held by the United States Supreme Court to be self-executing.'^ And in Missouri it has been decided that an amendment to the Constitu- tion, providing that " no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment, or informa- tion, which shall be concurrent remedies," being one which per- tains to criminal procedure and prohibitory in character is self- operating.* From an examination of these decisions it will be seen 6. State V. Ah Jim, 9 Mont. 166, 23 Pac. 76, wherein the court said: "The clause of the Constitution re- specting the information does not execute itself. All the details affect- ing the exercise, jurisdiction, and limitations of the procedure, and the rights and pleadings of the State and accused, must be defined by the legislative department," per Blake, J. See, also. In re Durban, 10 Mont. 147, 25 Pac. 442. 7. Davis V. Burke, 179 U. S. 399, 21 S. Ct. 210, 45 L. Ed. 399. Mr. Justice Bbown said in this case: " Where a, constitutional provision is complete in itself it needs no further legislation to put it in force. When it lays down certain general princi- ples, as to enact laws upon a certain subject, or for the incorporation ofl cities of certain population, or for uniform laws upon the subject of taxation, it may need more specific legislation to make it operative. In other words it is self executing only so far as it is susceptible of exe- cution. But where a constitution asserts a certain right, or lays a certain principle of law or procedure, it speaks for the entire people as their supreme law, and is full au- thority for all that is done in pur- suance of its provisions. In short, if complete in itself, it executes itself. When a Constitution declares that felonies may be prosecuted by information after a commitment by a magistrate, we understand exactly what is meant, since informations for the prosecution of minor offenses are said by Blackstone to be as old as the common law itself, and a pro- ceeding before magistrates for the ap- prehension and commitment of ' per- sons charged with crime has been the usual method of procedure since the adoption of the Constitution." 8. State v. Kyle, 166 Mo. 287, 65 S. W. 763, 56 L. R. A. 115, constru- ing amendment of | 12 of art. 2, of the State Constitution. The court said: "There is nothing in the lan- guage used in the amendment which indicates that subsequent legislation was necessary or intended to carry it into effect, nor was it, as it simply* prohibits any other mode for the 60 Constitutional and Stattttoey Provisions. § 53 that the Montana cases are opposed to the doctrine of the Missouri case, and apparently in direct conflict with the doctrine enunciated by the United States Supreme Court decision. In the consideration of this question it should be remembered that both " indictment " and " information " are derived from the common law, recourse to which is essential to determine their meaning as used in a constitutional provision.® It is true that at common law prosecu- tion by information was not permissible in ease of felonies. It was, however, permitted in the case of misdemeanors, and in this class of cases the meaning of the word "information " was well understood. It would therefore seem^ that having a well-known meaning as used in prosecuting misdemeanors it would be imma- terial that felonies were not so prosecuted at common law, and that a consititutional provision permitting the prosecution of a felony on information of the public prosecutor after a. commit- ment by a magistrate would be interpreted with regard to the common laW procedure by information, and would be self-execut- ing. Where a constitutional provision as to prosecution by in- formation is self -executing one convicted thereunder is not denied due process of law.^" § 53'. Changing charge in indictment — Power of courts as to. — ^A trial court has no power, even though the accused person may consent thereto, to change the charge in an indictment. The find- ing of an indictment is an act solely within the power of the grand jury to perform and it is for it to determine whether a person shall be indicted and the offense with which he shall be charged. So in a case where a change in the charge was directed by the court to be made it was said : "Such a power is unknown to the law and the act is not in conformity with the law of the land. If the judge could, with the consent of the defendant, thus alter the charge there is no reason why a judge may not, in any case, usurp the functions of the grand jury and change the nature of any prosecution of felonies (except cer- 10. Davis v. Burke, 179 U. S. 399, tain cases as herein provided), other- 21 S. Ct. 210, 45 L. Ed. 399. Examine ■wise than by indictment or In re Durbon, 10 Mont. 147, 25 Pac. information," per Buegess, J. 442. 9. See §§ 8, 11, herein. 61 § 53 CONSTITUTIONAI AND StATUTOEY PeOVISIONS. t offense, as fixed by its presentment, provided the party accused consents to the alteration. Such a practice wotdd be contrary to good policy. * * * To virtually divest the grand jury of the right to say for what a man shall be tried', and atrip it of a power, which, in our State, it has always possessed, and vest it in one man, would, in our opinion, be highly dangerous to the public interests, and is unquestionably in violation of law." ^* So it has been declared by the court in a case in Nevada that an indictment " manifestly means a written accusation made and presented by the inquisition known as a grand jury. But if, after being presented to the court, an indictment so found be in any par- ticular materially modified' or altered; if anything of substance be added to or taken therefrom by the court, it cannot with any degree of propriety be denominated an indictment of a grand jury. * * * If the courts have the power to add to or take from anything material in an indictment, where is the limit to that power ? If one can arrogate to itself any portion, upon what rule could it be held that it should not take upon itself the entire duties of the grand jury ? Clearly no indictment upon which a person can be legally tried can be found except by a grand jury, and the courts have no more authority to add any material charge, accusa- tion or allegation to it than they have to find the bill in the first instance."^^ So where a person was being tried on an indictment charging him with murder and the court refused to receive evidence showing that certain words had been inserted in the indictment after it was filed, by which the indictment as originally found for manslaughter had been changed to one for murder, it was decided on appeal that such evidence should have been admitted and that the court could not acquire jurisdiction to try him for the latter crime, even though the accused had consented to or waived the change. The court said : " The indictment as it stood before the alleged al- terations were made, only charged the defendant with the crime of manslaughter, but, as altered, it charged him with the crime of murder. The court under that indictment had no jurisdiction to 11. Commonwealth v. Adams, 92 12. State v. Chamberlain, 6 Ner. Kj. 134, 17 S. W. 276, 13 Ky. Law 257, 260, per Lewis, J. Kep. 440, per Holt, J. 62 Constitutional and Statutoey Peovisions. §§ 54, 55. try him for any crime otlier than such as was charged in the in- dictment wheal it was filed by the grand jury. Consent on the part of the defendant, whether given directly or inferred from his acts or omissions, cannot confer jurisdiction upon the court to try the defendant for any other crime than such as is charged in the indictment, as found and returned by the grand jury." *^ § 54. Legislature has no power to authorize court to change charge in indictment. — The Legislature has no power to condemn a particular act. as an indictable offense, and then empower the courts in the prosecution of a party for the commission of the act thus condemned, to substitute in the indictment and proof of it a different act, which is not the same and is not itself prohibited by law. A constitutional provision that " no citizen of this State shall be deprived of life, liberty, property or privileges, outlawed, exiled, or, in any manner, disfranchised, except by due course of the law of the land " is said to apply with great force in such a § 55. Constitutional provision requiring indictment for offenses punishable with imprisonment for life construed. — An act of the Legislature prescribing the kind of punishment which shall be imposed for a certain offense, which is imprison- ment for a certain number of years, and prescribes the minimum but no maximum punishment, is not imconstitutional as in viola- tion of a constitutional provision that " no person shall be holden to answer for any crime, the punishment of which may be death or imprisonment for life, unless on a presentment or indictment of a grand jury." *^ 13. People V. Granice, 50 Cal. 447, the State prison not less than ten per the court. years." The court said: " The ob- 14. Hewitt V. State, 25 Tex. 722. scurity arises from the fact that the 15. Romero v. State, 60 Conn. 92, statute prescribes a minimum punish- 22 Atl. 496, construing art. 1, § 9, of ment but no maximum. But the kind the State Constitution and Gen. of punishment is prescribed, which is Stat., § 1404, which provided that: imprisonment for a definite term of " Every person who shall assault years, for a prescribed punishment of another, with intent to commit mur- not less than ten years' imprisonment der, • • • shall be imprisoned in is the same as one for a term of 63 §§ 56, 57 OoxsTiTUTioifAi, AND Statutoey Peovisions. § 56. Right of State to provide for prosecution by information as aifected by treaty. — This question is oonsidered in a recent case in Missouri, where it was contended that a prosecution by information for murder was in contravention of the treaty of cession between the TJnited' States and France, by which the Louisiana Territory was ceded to the United States. This treaty provided that : " The inhabitants of the ceded territory shall be incorporated in the Union of the United States and admitted as soon as possible according to the principles of the Federal Consti- tution, to the enjoyment of all the rights, advantages and im- munities of citizens of the United States." The court, however, after considering this provision in connection with the fifth and fourteenth amendments to the United States Constitution declared that the right was not secured by the Federal Constituion to a citizen of any state to be prosecuted by indictment, that a State might provide for the prosecution of felonies by information and that therefore the defendant in this case was not deprived of any of the rights, advantages or immunities guaranteed to the citizens of the United States." § 57. Code provision as to indictment against accessory and principal — Constitutionality of. —A constitutional provision giv- ing to an accused person the right to demand the nature and cause of the accusation against him is not violated by a statutory years not less than ten. The only law a sentence to imprisonment for discretion the court has in going life is perfectly distinct from that for above ten years is merely to add to a term of years, and one is never the the number. But a definite number equivalent of the other without ex- of years must be specified, otherwise press statutory authority. Our law the sentence would be void for uncer- has always regarded imprisonment tainty. It may, however, be sug- for life as a punishment much gested in this connection that im- greater in degree than imprisonment prisonment for life in its result is for a term of years, and in our stat- only for a certain number of years, utes the latter is classed under the and that if the sentence is long head of ' less than life,' " per enough to cover the entire life of a LooMis, J. person, there is no practical differ- 16. State v. Rudolph, 187 Mo. 67, ence. But such reasoning overlooks 85 S. W. 584. the fact that in contemplation of the 64 Constitutional and Statutoey Provisions. § 57 or code provision that in an indictment against an accessory it stall not be necessary to state any other facts than are required in an indictment against the principal.^^ 17. State V. Geddes, 22 Mont. 68, sion, though not present, must be 55 Pac. 919, construing Mont. Pen. prosecuted, tried and punished as Code, § 1852, providing that " all principals, and no other facts need persons concerned in the commission be alleged in any indictment or in- of a felony, whether they directly formation against such an accessory, commit the act constituting the of- than are required in an indictment or fense, or aid and abet in its commis- information against his principal." 65 CHAPTER IV. Power and Jubisdiction of Gkawd Juet, Section 58. Origin of grand jury; powers of generally. 59. Powers of grand jury to indict on knowledge of members. 60. Validity of indictment not affected by failure to designate term as provided by statute. 61. Grand jury must have jurisdiction. 62. Jurisdiction of grand jury co-extensive with, and limited by, that of court. 63. Indictment must be by grand jury of county where offense com- mitted. 64. Same subject; when not necessary. 65. Summoning grand jury from portion of district not violation of Federal Constitution. 66. Grand jury impanelled before offense committed; indictment valid. 67. Court divested of jurisdiction by indictment; statute. 68. Grand jury must he a legal body. 69. Same subject; classification of cases in which question arises. 70. Same subject; application of general rule. 71. Grand jury must be legal body though indictment not required. 72. Objection to formation of grand jury; right to make may be limited by statute. 73. Constitutional provision requiring indictment; when construed with reference to common law as to number. 74. Where number of grand jurors specified by law; compliance essential. 75. Where one grand juror excused but necessary number occur. 76. Defects in organization or selection of grand jury which are immaterial. 77. Same subject; illustration of rule. 78. Where person drawn as grand juror is personated by another. 79. Court cannot remove or change members of grand jury. 80. Grand jury should be sworn. 81. Grand jury must be composed of persons qualified to act. 82. Waiver of objection to want of qualification. 83. Grand jurors must be qualified; rule illustrated. 84. That a person is exempt from service as grand juror does not disqualify. 66 Power and Jurisdiction of Grand Juet. § 58 85. Expression of opinion by grand juror as ground of objection. 86. Same subject; application of rvile. 87. Inquisitorial powers of grand jury. 88. Preliminary examination or hearing not generally necessary. 89. Same subject; contrary view. 90. Necessity that accused be in custody. 91. Where apprehension of offender a ground of jurisdiction. 92. That arrest or custody is illegal is immaterial. 93. As to time of finding in indictment; generally. 94. Where grand jury for one term holds over; de facto grand jury. 95. Power of grand jury to find indictment during vacation. 96. Power to find indictment at an adjourned term. 97. Power to find indictment at special term. 98. Word " trial " in act providing for special term construed. 99. Power to find indictment at term other than that following com- mitment. 100. Same subject; under particular statutes. 101. Indictment found pending habeas corpus proceedings. 102. Constitutional provision as to right to be heard construed. 103. Indictment must be founded upon evidence. § 58. Origin of grand jury — Powers of generally. — The grand jury, which, dates back to an early period in the history of England, is a body formed for the purpose of maliing investiga- tions and accusations of crime. For many centuries it has been regarded as a security to the individual of his rights and as pre- venting persecution in the name of the king, and its object at the present time is to prevent unjust or unlawful prosecution of the individual in the name of the public. So tbe Magna Charta for- bade that felonies should be prosecuted in any other manner than by indictment or p;reseiitment,^ and a provision securing the right to an indictment by the grand jury in the ease of felonies was incorporated into the Federal Constitution and also into the Constitution of most of the States.^ The history of the origin and powers of the grand jury can not be better expressed than in the words of Justice Field, as follows: 1. State v. Cannon, 29 Mo. 330. cused, has been regarded for cen- 2. " The investigation by a, grand turies as one of the securities to the jury of ' a capital or infamous innocent against hasty, malicious and crime ' of which a party may be ac- oppressive public prosecutions and as 67 § 58 POWEE AND JuKISDICTIOW OF GeAND JtTKY. " The institution of the grand jury is of very ancient origin in the history of England — it goes back many centuries. For a long period its powers -were not clearly defined ; and it would seem from the account of commentators on the laws of that country, that it was at first a body which not only accused, but which also tried public offenders. However this may have been in its origin, it was at the time of the settleanent of thisi country an informing and accusing tribunal only, without whose previous action no person charged with a felony could, except in certain special cases, be put upon his trial. And in the struggles which at times arose in Eng- land between the powers of the king and the rights of the subject, it often stood as a barrier against persecution in his name; until at length, it came to be regarded as an institution by which the subject was rendered secure against oppression from unfounded persecutions of the crown. In this country, from the popular character of our institutions, there has seldom been any contest between the government and the citizen which required the exist- ence of the grand jury as a protection against oppressive action of the government, yet the institution was adopted in this country, and is continued from considerations similar to those which give to it its chief value in England, and is designed as a means, not only of bringing to trial persons accused of public offenses upon just grounds, but also as a means of protecting the citizen against unfounded accusation, whether it comes from government, or be prompted by partisan passion or private enmity. ~No person shall be required, according to the fundamental law of the country, except in the cases mentioned, to answer for any of the higher crimes unless this body, consisting of not less than sixteen nor more than twenty-three good and lawful men, selected from the body of the district, shall declare, upon careful deliberation, under one of the ancient immunities and guard the security of the citizen bulwarks of personal liberty. The against vindictive prosecutions, provision now found in the Federal either by the government, political Constitution originated as an amend- partisans, or by private enemies." ment to the original Constitution, in- Butler v. Wentworth, 84 Me. 25, 24 troduced in the nature of a bill of Atl. 456, 17 L. R. A. 764n, per Fos- rights, at the first session of Con- ter, J. gress in 1789, the more carefully to POWEE AI^'D JUEISDICTION OF GeAND JuET. § 59 the solemnity of an oath, that there is good reason for his accusa- tion and trial." ^ § 5&. Power of grand jury to indict on knowledge of members. — A grand jury has power to find an indictment against a person founded upon matters within the knowledge of its members,* and a grand juror may appear as a witness 'before the grand jury of which he is a member and the latter may properly act upon the personal knowledge of any of its members communicated to his fellows under no other sanction than the grand juror's oath.® So when in the progress of an investigation of a case by the grand jury it develops from the testimony of a witness that an offense has been committed altogether disconnected from the case under consideration, it is entirely proper for the grand' jury to cause a special presentment to be preferred for such offense and require the witnesses to appear and be sworn on the consideration of the presentment thus preferred. It is not only the privilege but the duty of the grand jury to present all offenders where the offense comes to their knowledge during the time of their service, and it is immaterial in what way the information is received.^ And it is not necessary that a presentment made upon the knowledge or information of a grand jury should show upon its face or else- where that it was so made and it will not be presumed that a presentment was made upon the knowledge of the members of a grand jury from the fact that no prosecutor was marked upon the presentment.'' And it is held to be no ground for setting aside an 3. Ex parte Bain, 121 U. S. 1, 10, instance of a prosecutor, make a 7 S. Ct. 781, quoting language of Jus- special presentment of a justice of tiee Field in a charge to the grand the peace for malpractice in office, jury reported in 2 Sawyer 667. 5. Commonwealth v. Hayden, 163 4. State v. Richard, 50 La. Ann. Mass. 453, 40 N. E. 846, 28 L. E. 210, 23 So. 331; State v. Terry, 30 318, 47 Am. St. Rep. 468. Mo. 368. See Groves v. State, 73 Ga. 6. Oglesby v. State, 121 6a. 602, 205, overruling Hawkins v. State, 54 49 S. E. 706. Ga. 653, 658, which held that a grand 7. State v. Lewis, 87 Tenn. 119, 9 jury cannot, from their own knowl- S. W. 427; State v. Lee, 87 Tenn. 114, edge or observation, without any bill 9 S. W. 425. of indictment laid before them at the 60 POWEE AND JUEISDICTION OF GeAND JuET. indictment for arson that some of the grand jurors had knowledge that the building was burned, it being declared that knowledge of such fact does not disqualify them from ascertaining whether the building was feloniously burned and who was probably the guilty party.* § 60'. Validity of indictment not affected by failure to desig- nate term as provided by statute There is held to be no sub- stantial ground upon which the legality or regularity of the court where the indictment was found can be questioned from the fact that it is provided by code that the designation of trial terms shall be made before a certain date and they are not made until a day subsequent to that specified, it being declared that such a provision is directory merely and that the observance of the date is not essential to the jurisdiction to perform the act.* And under a similar statute in Ohio it is decided that a judge of the Court of Common Pleas has authority to hold court in any 8. People V. Breen, 130 Cal. 72, 62 Pac. 408. 9. People V. Youngs, 151 N. Y. 210, 45 N. E. 460, construing Code Civ. Proc, § 232. Judge O'Bbieit said in this case : " The defendant was indicted at a term of the court held on January 20th, 1896, which was appointed by the justices of the Appellate Division in the third de- partment on December 3d. 1895. On January Ist, 1896, the same justices reconvened and made appointments for terms of courts as before, thus ratifying what had been done at their first meeting. The justices were re- quired to make these appointments by article 6, section 2, of the new Constitution, and also by section 232 of the Code of Civil Procedure. It is true that by the provisions of the code they were required' to make the appointments before the first day of December, 1895; but this we think was directory, and the fact that they did not make the designations until three days afterwards, does not, we think, affect the validity of the act. The Constitution conferred upon them this power in explicit language, and their jurisdiction was not af- fected by the circumstances that the act was not performed on the pre- cise day that the Legislature had designated for that purpose. The Constitution required them to per- form this duty without designating any time, and the Legislature under the Constitution had directed the performance of the act prior to the first of December. The designation of the particular day was, as we have already remarked, directory, and the observance of the date was not essen- tial to the jurisdiction to perform the act." 70 61 POWEB AND JUBISDICTION OF GeAND JuET. county in his district, though not designated by the judges of the district, as provided by statutes, to hold court in that county; and an indictment found and returned at a term so held is not invalid, either because the judge holding the term was not desig- nated to hold the same or because the judges of the district failed to apportion the labor of holding the court among themselves, and to issue an order specifying the term to be held by each judge.-'" § 61. Grand jury must have jurisdiction. — ^It is essential to the validity of an, indictment that the grand jury by vs^hich it vsras found had jurisdiction to inquire into the matter and to find the indictment.^^ "Without jurisdiction they have no power to in- vestigate the charge or present the accused for trial, and a presentr ment made under such circumstances has no more effect in law than if made by the jurors in their capacity as private citizens. The accused cannot be held to plead to it and no witness at such an inquiry could be held for perjury, however falsely he may have sworn. So, also, upon a general demurrer that no crime is stated, the same inquiry must always arise since it is legally 10. state V. Thomas, 61 Ohio St. 444, 56 N. E. 276, 48 L. R. A. 457, construing Eev. Stat. 468. 11. TTnited States.— Post v. United States, 161 U. S. 583, 16 Sup. Ct. 611, 40 L. Ed. 816; United States V. Hill, Fed. Cas. No. 15364. See In re Fires, Fed. Cas. No. 5126, 3 Dall. 515. Alabama. — ^Hughes v. State, 35 Ala. 351; Putzell v. State, 15 Ark. 71. Indiana. — Shepherd v. State, 64 Ind. 43; State v. Henning, 33 Ind. 189; Beal v'. State, 15 Ind. 378. Maine. — State y. Doherty, 60 Me. S04; State v. Jackson, 32 Me. 40. Missonri. — State v. Simley, 98 Mo. 605, 12 S. W. 247; Ex parte Slater, 72 Mo. 102. Montana. — See Territory v. Cor- bett, 3 Mont. 50. He-w Torb. — ^People v. McCarthy, 168 N. Y. 549, 61 N. E. 899; People V. EJiatt, 156 N. Y. 302, 50 N. E. 835; People v. Dimick, 107 N. Y. 13, 14 N. E. 178. Conimeneement of proceedings as affecting jurisdiction of court "The submission of a bill of indict ment by the attorney for the govern ment to the grand jury, and the ex amination of witnesses before them are both in secret, and are no part of the criminal proceedings against the accused, but are merely to assist the grand jury in determining whether such proceedings shall be commenced." Post V. United States, 161 U. S. 583, 16 S. Ct. 611, 40 L. Ed. 816, per Mr. Justice Geat. 71 POWEE AJTD JtJEISDICTION OF GeAND JuEY. § 61 impossible for a grand jury to charge any crime unless there is jurisdiction. Therefore, in every inquiry, whether the paper before the court is an indictment at all in the legal sense, or •whether it charges a crime which the accused is required to answer, there must necessarily be involved the question of the jurisdiction of the grand jury." ^^ So where a grand jury was impanelled in the Circuit Court of a county and an indictment was returned by said jury into said court, after the act creating a criminal Circuit Court in that county went into force but before the first term of the latter court, it was decided on a motion to quash, in the criminal Circuit Court to which the case was trans- ferred, that the court in which the indictment was found had no jurisdiction.^^ And where the return of a judge's certificate to the district attorney was a pre-requisite to his presenting a charge to the grand jury it was decided that, no certificate being returned, the grand jury had no jurisdiction to find an indictment.^^ The question as to the jurisdiction of the court may be raised by a general demurrer.^* But an omission to set forth that the grand jury are of the county in which the court is held is not such a defect as will vitiate the indictment where the name of the county is correctly laid in the margin. " At common law it does not seem to have been the practice to repeat the name of the county 12. People V. Knatt, 156 N. y. 302, Crim. Pro., i§ 741, 775; 1 Arch. 50 N. E. 835, per O'Brien, J. Crim. Pro. [8th ed.] 355.) In reason 13. State V. Henning, 33 Ind. 189. and in the nature of things that must 14. People V. Knatt, 156 N. Y. be so, since there can be no indict- 302, 50 N. E. 835, holding that an in- ment at all in any legal sense, un- dictment must show upon its face the less it appears that the grand jury facts necessary to confer jurisdiction had jurisdiction. . . . So, also, upon the court in which it is found, upon a general demurrer that no 15. People V. Knatt, 156 N. Y. crime is stated, the same inquiry 302, 50 N. E. 835, wherein the court must always arise, since it is legally said in this connection: "It was al- impossible for a grand jury to charge ways the law that a general demurrer any crime unless there is jurisdiction, to an indictment brought the whole . . . The scope and effect of a gen- record before the court and the in- eral demurrer at common law has quiry was then open whether the not been changed by the Code, unless court in which the indictment was it be to enlarge it." Per CBbies, J. found had jurisdiction. ( 1 Bishop 72 POWEK AND JUKISDICTION OF GeAND JuEY. §§ 62, 63 in tlie caption, but only to refer to tlie name in the margin as in tte said county.*® § 62. Jurisdiction of grand jury co-extensive with, and limited by, that of court — .The jurisdiction of the grand jury is co-ex- tensive with that of the court for Tvhich they are to inquire, both as to the extent of the territory and the offenses to be investigated.*^ So the jurisdiction of Federal grand jury is only co-extensive with, and is limited by, the jurisdiction of the court for which it is to inquire, there being no express act of CongTcss defining their powers. Grand juries are accessories to the criminal jurisdiction of a court, and they have power to act and are bound to act, so far as they can aid that jurisdiction. Thus far the power is implied and is as legitimate as if expressly given. To suppose the powers of a grand jury, created, not by express statute, but by the necessity of their aiding the jurisdiction of the court to transcend that jurisdiction, would be to consider grand juries once convened, to be clothed with powers not conferred by law, but originating with themselves. This has never been imagined. It follows then, that, in the general, the grand juries which are summoned to attend the courts of the United States, possess powers and duties co-extensive with the jurisdiction of the courtsi which they attend."*® § 63. Indictment must be by grand jury of county where offense committed.. — ^A constitutional provision that a person can- not be proceeded against for a felony otherwise than by indictment is also to be construed with reference to the common law in deter- mining, whether an indictment may be found by a grand jury of any other county than that in which the offense was committed. And it being a common law doctrine that crimes shall only be prosecuted in the county in which they were committed it has been decided that under a constitutional provision of the above 16. Guy V. State, 1 Kan. 448, 452. 18. United States v. Hill, 26 Fed. 17. Keitler v. State, 4 G. Greene Cas. No. 15,364, 1 Brock. 156, per (Iowa), 291; Territory v. Corbett, 3 Mabshall, C. J. Mont. iJO. 73 § 64 POWEE AND JUKISDICTION OF GeAND JuKT. nature, an indictment must be found by the grand jury of that county of the State in which the offense was committed.*^ And in such a case the Legislature has no power to provide otherwise.^" But the right of an accused person to demand that he shall be in- dicted by the grand jury of the county in which the criminal act is alleged to have been committed is not an absolute and indefeas- ible right which cannot be waived or surrendered.^* § 64. Same subject — ^When not necessary — .In a case in ^ew York it has been decided that the Legislature has power to pro- vide that a person committing a burglary and larceny in one county and carrying the stolen' property into another county may be indicted, tried and convicted in the latter county as if the crime had been there committed.^* It was declared in this case that while at common law a grand jury could not regularly inquire of a fact done out of the county for which they were sworn, yet that a grand jury might be specially enabled so to do by act of Parliament and that though under the Bill of Rights it would ordinarily be the rule that a person must be indicted by the grand jury of the county where the crime wasi committed, yet that the Bill of Rights must be read and construed in the light of the law in existence when it was adopted which recognized the legislative authority to provide otherwise.^* Where statutes authorize indict- ments when goods are stolen in one county and carried by the thief into another county to be found in any county in which they may be carried by the taker, they are to be upheld on the ground that in such cases the larceny is continuous and that the taking of the goods, stolen from one county into another county involves a new caption in such county.** 19. Ex parte Slater, 72 Mo. 102. itation shall have taken place, or in 20. State v. Smiley, 98 Mo. 605, the county in which the offender may 12 S. W. 247, construing R. S. 1879, be apprehended." § 1536, providing that "An indict- 21. Parker v. Commonwealth, 12 ment for bigamy . . . may be Bush (Ky.), 191. found, and proceedings, trial, convic- 22. Hack v. People, 82 N. Y. 235. tion, judgment and execution thereon 23. Per Folgbb, J. had, in the county in which such see- 24. Ex parte Slater, 72 Me. 102. end or subsequent marriage or cohab- 74 POWEE AND JUEISDICTION OF GeAND JuEY. § 65 § 65. Summoning grand jury from portion of district not vio- lation of Federal Constitution. — The amendment to the United States Constitution providing that " in all criminal proseoutions the accused shall enjoy a right to a speeidy trial by an impartial jury of the State and district wherein the crime shall have been committed" is not violated by a direction by the court in the vemire issued by a Federal court that a grand jury shall be sum- moned from a certain portion or division of the district, as is al- lowed by provision of the United Sitates Revised Statutes.^^ 25. United States v. Ayres, 46 Ped. 651, construing U. S. Const., amend. 6, and U. S. Rev. St., § 802. Judge Shibas said in this connec- tion : " The motion to quash the in- dictment is based upon the claim that it is not within the power of the court to cause a grand jury to be summoned from u certain portion or division of the district, and that if such limitation is made in the venire a jury summoned in accordance with its provisions would not be a legal grand jury, and therefore indict- ments returned by such a, body would not be valid. In support of the mo- tion, reference is made to the sixth amendment to the Constitution of the United States, which provides that ' in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an im- partial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.' Even if the construction of this amendment is admissible that would hold it applicable to grand juries, it does not bear the meaning sought to be given it, for its purpose was to prevent the evil of a person charged with a, criminal offense being taken for trial to some distant place. The burden to litigants in being com- pelled to follow the king's progresses throughout England had become so great at an early day that it called for correction in Magna Charta, by the provisions of which the Court of Common Pleas was fixed at West- minster, and assizes were required to be held in the different counties. In- deed it became a recognized principle of the common law that one accused of crime was entitled to a, trial be- fore a jury of the vicinage. When the Constitution of the United States was adopted, the need of extending proper protection in this particular was at once perceived and the sixth amendment was, with others, sub- mitted to the State by the first Con- gress assembling after its adoption, to wit, in September, 1789. This same Congress in adopting the ju- diciary act, approved September 24, 1789, by section 29 thereof, enacted: ' That in cases punishable with death, the trial shall be had in the county where the offense was committed, or, when that cannot be done, without great inconvenience, twelve petit jur- ors, at least, shall be summoned from thence, and jurors in all cases to serve in the courts of the United § 66 POWEE AND JUEISDICTION OI" GeAND JuEY, § 66. Grand jury impanelled before offense committed — In- dictment valid — The fact that a grand jury was impanelled be- fore the alleged offense was committed, is no ground for quashing an indictment. In this connection it is said in an early case in California in which this question arose : " It cannot be questioned that the powers of the grand jury are general, to inquire into and present all offenses which occur in the county. There is no quali- fication in the statute as to the time of their commission, except that constituted by statutes of limitation. There is no reason, apart from express statutory provisions which should prevent im- mediate action by a grand jury when a crime is committed, while many reasons exist for promptness of proceeding. * * * There is no force in the suggestion, that the term of a court is considered by fiction of law to be but one day, and therefore the anomaly might appear, that the indictment was found before the offense was committed. The fictions of law are never permitted to defeat justice, but are only used to advance it ; and whenever States shall be designated by lot or otherwise in each State, respectively, according to the mode of forming juries therein now practiced, 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 an unneces- sary expense, or unduly to burden the citizens of any part of the dis- trict with such services. This pro- vision of the statute authorizing the court to direct what parts of the dis- trict a given jury, grand or petit, shall be summoned from, has re- mained a part of the statute law since its adoption in 1789, and now forms section 802 of the Revised Statutes; and I have no doubt that it has been acted upon in all, or nearly all, the districts of the Union. Its constitutionality cannot be suc- cessfully impeached at this late day, and if constitutional it cannot be questioned that its provisions fully sustain the action of the court in directing that the grand jury sum- moned for the term at Sioux Falls, and which found the present indict- ment, should be drawn from the parts of the district named in the venire. The purpose of the court in directing the jury to be summoned from a part only of the district was to save im- necessary expense to the government, and to limit the burden upon the citi- zens who should be selected for jury duty; and, in so doing, the court simply performed the duty which the statute places upon the court, and which the court is required to per- form." See United States v. Charres, 40 Fed. 820. Power and Jueisdiction of Gkand Juey. §§ 67, 68 time) becomes important, courts will inquire into a day or even a fractional portion of a day." ^® § 67. Court divested of jurisdiction by indictment — Statute Though by statute a certain court is given exclusive jurisdiction of offenses, yet if there is a statutory reservation or exception that such court shall be divested of its jurisdiction in such oases if, at any time, before trial, a grand jury shall present an indictment for the same offense, the grand jury may indict for an offense in the class specified, the only limitation upon its authority being that the indictment must be found and presented before the trial and if it is so found and presented it will operate to divest the court of its exclusive jurisdiction.^^ § 68. Grand jury must be a legal body. — ^The constitutional provision that no person shall be held to answer for a criminal offense unless on an indictment or presentment of a grand jury gives to an accused person the right to insist that the indictment shall be found by a grand jury which is legal. " If the indictment is not found by a legal grand jury, it is not found by a grand jury at all, and therefore a person can not be held to answer an offense charged in an indictment found by a grand jury un- authorized by law."^^ As is said in a case in Oklahoma; if it be 26. People v. Beatty, 14 Cal. 570, the Legislature to define how many per Baldwin, J. persons should be sufficient to com- 27. People v. McCarthy, 168 N". Y. pose this body and to provide for its 549, 61 N. E. 899, affg. 59 App. DIt. selection and organization. Accord- 231, 69 N. Y. Supp. 513, construing ingly, they have provided, in § 1642 § 1406 of the charter of the city of of the Code, that ' when grand jurors New York (N. Y. L. 1897, c. 378). are to be selected, their number must 28. Norris' House v. State, 3 G. be fifteen, and they shall serve for Greene (Iowa), 513, 519, per Kin- one entire year thereafter.' If the NET, J., holding under a code provi- requisite number of jurors do not ap- sion that the number of grand jurors pear by the time appointed, the court must be fifteen and that an indict- may at any time direct the sheriff to ment found by a jury of less than flf- summon forthwith the number neces- teen, though approved by twelve jur- sary to make up the deficiency, § ors, was not good. The court said in 1647. The number of jurors must be this connection: "It was left for — fixed as above, § 1648. And it is pro- 77 POWEE AKD JtJEISDICTION OF GeAND JuET, not substantial error for a trial court to refuse to permit the defendant to produce evidence showing the invalidity of an in- dictment, " then the constitutional right of one accused of crime may he taken from him and he may be held to answer to a capital or otherwise infamous crime without a presentment or indictment of a grand jury. The Constitution, in guaranteeing this right to persons accused of crime, did not mean a mere form of indictment but meant a valid indictment, found' and presented in accordance with the ancient and just rules and safeguards of law, provided for the organization, action and conduct of grand juries."^' So it is said in this connection that courts are strict in dis- countenancing irregularities in the mode of selecting and impan- elling grand jurors, and that the decided weight of American authority is that objection may be taken to the irregularity of jdea in ahatement.'** It is therefore essential to the validity of an indictment that the grand jury should' be drawn, summoned vided in § 2881 that ' on the first day of the term of the court for which a grand jury has been summoned, they must be called, and if fifteen do not appear, or if the number appearing be reduced to less than fifteen, the court may order the sheriff of the county to summon a sufficient num- ber of qualified persons to complete the panel. It is clear from the above sections of the Code that a grand jury must be composed of fifteen per- sons, and that a less number is not permitted. The Legislature have carefully provided for all possible contingencies so as to prevent a re- duction from the number required, and to preserve without any encroach- ment the number fifteen as fixed by law. This number and this alone un- impaired is absolutely necessary to constitute a grand jury, and hence if this number is in the least diminished there is no legal grand jury in con- templation of law. If a less .number than fifteen is sufficient to form the body, then indeed could the number be reduced so that even the appear- ance of a. grand jury could not re- main. But it is said in reply to this that it is only necessary for twelve to concur in finding a bill, and hence after the grand jury is organized, the court has a right to reduce the num- ber down to twelve. This position is unsound, and at variance both with the letter and spirit of the law. It is only required that twelve concur in finding a bill, but the other three cannot in any manner be dispensed with. They are as essential in order to maintain the organization and ac- tion of the grand jury as though the law required the entire number to agree in finding an indictment." Per KmxET, J. 29. Royce v. Territory of OkI> homa, 5 Okla. 61, 69, 47 Pac. lO.S.'i. per Tabsney, J. 30. Wilbum v. State, 21 Ark. 198. 78 PowEK AND Jurisdiction of Gband Juey. § 68 and impanelled in the manner provided by law, and if a grand jury is not a legally organized body in aeoordance with the re- quirements of law, an indictment found by it will be of nO' force and will be quashed.^* And the record must aflSrmatively show the organization of the grand jury; and an endorsement on an indictment, which purports to be signed by the foreman of the grand jury, is not sufficient proof of that fact.^^ But where it does not affirmatively appear that the grand jury is an unlawful body, any irregularity in selecting and impanel- ling it should in general be raised before plea, by challenging the array, and not by a motion in arrest of judgment.^' And where the record shows that the grand jury is organized under the supervision of the court and nothing affirmatively appears thereon, to the contrary, it will be presumed that the grand jury was legally organized.^* The burden of showing irregularities in the organization of a grand jury, rests upon the defendant, and the State is not required in the first instance to establish a compliance with the law.^^ ai. TTnited States. — Ex parte Farley, 40 Fed. 66. Alabama.— Hall v. State, 134 Ala. 90, 32 So. 750; Nixon v. State, 68 Ala. 535 ; Parmer v. State, 41 Ala. 416. Arkansas. — Wilburn v. State, 21 Ark. 198. California. — Levey v. Wilson, 69 Cal. 106. Iowa. — State v. Bowman, 73 Iowa, 110, 34 N. W. 767. Maine. — State v. Symonds, 36 Me. 128. Maryland. — State v. Vincent, 91 Md. 718, 47 Atl. 1036, 52 L. R. A. 83; Clare v. State, 30 Md. 163. Mississippi. — Miller v. State, 33 Miss. 356, 69 Am. Dec. 351; Weeks V. State, 31 Miss. 490. Nevada. — State v. McNamara, 3 Nev. 70. Se-w Jersey. — State v. Rockafel- low, 6 N. J. L. 332; Nichols v. State, 5 N. J. L. 539. New York. — People v. DuflF, 1 N. Y. Cr. R. 307 ; People v. Seannell, 37 Misc. 345, 75 N. Y. Supp. 500. North Carolina. — State v. Sharp, 110 N. C. 604, 14 S. E. 504. Obio. — ^Huling v. State, 17 Ohio St. 583. Rhode Island. — State v. Davis, 12 R. I. 492, 34 Am. Rep. 704. Tennessee. — State v. Duncan, 7 Yerg. 271. Texas. — Lewis v. State, 42 Tex. Cr. 278; Wells v. State, 21 Tex. App. 594, 2 S. W. 806; Rainey v. State, 19 Tex. App. 479; McNeese v. State, 19 Tex. App. 48. 32. Parmer v. State. 41 Ala. 416. 33. Wilson v. People, 3 Col. 328. 34. Chase v. State, 46 Miss. 683. 35. State v. Hartman, 10 la. 589. 79 §§ 69, 70 PowEE AXD JuKisDicTioiir OF Geand Juey. § 69. Same subject — Classification of cases in which question arises. — The cases in which this question has arisen have been divided by the court in a Maryland case into three classes: First, those which hold that a court has no authority to try a person upon an indictment found by a grand jury composed of fewer numbers than the minimum number required by statute, and that objection upon this ground may be raised at any time, and in any manner, and cannot be waived by any act, or failure to act on the part of the defendant; second, those which hold that the objection is waived by failure to take advantage of the defect before pleading to the merits; and, third, those which hold that statutes fixing a number to compose a grand jury are directory merely, and do not alter the common law rule, by which any number between thirteen and twenty-three constitute a competent jury.3* § 70. Same subject — Application of general rule In the application of the principle stated in the preceding sections it has been decided that an indictment found by a grand jury, which was dravm by virtue of venires not having the seal of the court upon them, is illegal and void, and that the defect cannot be cured either by an amendment or by a separate act of the Legislature.*^ And in a case in Florida it is decided that where officers charged with sumoning venires for petit jurors from the body of the county discriminate against persons of color, solely on account of their color, in executing the venire, a colored person upon trial, charged with crime, may challenge the array of such petit jurors upon the ground stated, when it is proposed to select jurors to try him from such special venire, but where the fact of such discrimina- tion does not appear of record, the challenge must be sustained by proof, otherwise it is properly overruled.^* And where a sheriff, who was required by statute to summon the persons selected as grand jurors, failed to summon one of those selected, but sum- moned another person in his place without an order of court 36. State v. Vincent, 91 Md. 728, body, 38 Me. 200. But see Pierce v. 47 Atl. 1036, 52 L. R. A. 83. State, 12 Tex. 210. 37. State v. Flemming, 66 Me. 38. Tarrance v. State, 43 Fla. 447. 142, 22 Am. Rep. 557 ; State v. Light- 80 POWEE AWD JUEISDICTION OF GeAND JuEY. § 70 authorizing him to so act, it was held that an indictment found by the grand jury so constituted was properly quashed.^* And where it was provided by statute that certain judges of the courts in Baltimore, or any two of them forming a quorum, should meet to select a list of names of persons qualified to serve as grand jurors, it was decided that a grand jury was not properly or- ganized where it appeared that the judges did not meet to make the selection, but that the list was prepared by one of the deputy clerks of one of the courts, who submitted it, seriatim and separately, to the different judges, who approved of and adopted it without con- sultation. And an indictment found by such a grand jury was held to be null and void.*" So indictments found by a jury summoned by a sheriff without process are held to be of no force and may be quashed on motion.*^ And where the statute does not authorize the selection of members 39. State v. Cantrell, 21 Ark. 127. 40. Clare v. State, 30 Md. 165. Judge Stuart said in this case: "There can be no doubt that the Legislature, in the enactment of this law, designed to avoid, if possible, vices then existing in regard to the organization of the juries for the city of Baltimore, and to accomplish a re- form in that respect. The respective duties we have enumerated, were par- ticularly enjoined upon the judges as possessing in the estimation of the Legislature, peculiar fitness for the trust. That from their ofScial sta- tion as the ministers of justice, and from other superior intelligence and impartiality, they would be the very best instruments faithfully to carry into execution the provisions of the law. That they would, in person, make selection of upright, impartial and capable persons, to serve in the capacity of jury, in the administra- tion of justice in civil and criminal cases. The Legislature expressly im- posed this important duty upon the judges, and did not authorize them to depute their discharge to others. Not only was there no meeting for consultation, on the part of the judges, for the selection of names of persons to compose the list, but no meeting afterwards to approve or re- ject what had been done by the subordinate official. When presented to each judge separately, it was adopted without particular examina- tion. We cannot give our sanction to such a mistaken execution of this law. Its chief provisions have been disregarded, — indeed, virtually abro- gated. It follows from these fatal omissions, that the body of men as- suming to act as a. grand jury, and to find the indictment in this case, was not qualified to act as such, be- cause the mandates of the law had not been pursued in their selection." 41. Nichols V. State, 5 N. J. L. 539. 81 § 71 POWEE AND JdEISDICTION OF GeAND JuEY. of the grand jury, during term time, an indictment found by a grand jury, a part of whose members were so selected, will be regarded as void.*^ So where a judge informed the grand jurors that they need not appear at the next term, unless again sum- moned, it was decided that he was not authorized on the third day of the next term, without any summons or other notice to the jurors to appear, to impanel a grand jury by calling talesmen to take the place of such of the regular panel as were absent, and so an indictment found by such a grand jury should be quashed.*^ § 71. Grand jury must be legal body though indictment not required. — A provision of the State Constitution that no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment by grand jury entitles one to an indictment by a grand jury, which is legally constituted. And this is true, though the offense with which a person is charged is a misdemeanor instead of a felony, for if the district attorney elects to prosecute a person on an indictment, it must be by one which is found by a legally organized grand jury. The fact that a prosecution by indictment is not required is immaterial.** 42. State v. Symons, 36 Me. 128. control in this way the impanelling 43. State v. Bowman, 73 la. 110. of the jury, and exclude persons Judge Beck said in this case: "No therefrom chosen in the manner pre- summons was issued to the jurors to scribed by law. We think the grand appear at the term, or any day jury finding the indictment was ille- thereof, and no notice to that eflfect gaily impanelled, and the motion to was given to them in any other way. quash the indictment should have The jury was impanelled on the third been sustained." day of the term. It is not shown 44. People v. Scannell, 37 Misc. how many of the regular panel were 345, 75 N. Y. S. 500, 16 N. Y. Crim. present, or how many were put upon Rep. 321. Judge GOFF said in this the jury. It appears that some two, case: "The defendants may be at least, were absent on account of brought into court either by informa- the direction of the judge for them tion or by indictment; but by which- not to appear as above stated. The ever method, they must be legally jury should not have been impanelled charged with the commission of a when jurors were absent, by direc- crime. If by indictment, the plead- tion of the judge, until they had been ing must be in the form of, and must notified and failed to appear. The contain the essentials prescribed by law does not authorize the judge to la\T, and if an indictment for misde- 82 POWEE AND JtrEISDICTION OF GeAND JuET. § 72 § 72. Objection to formation of grand jury — Right to make may be limited by statute. — In some States the right to make an objection, to the formation of a grand jury is restricted by a stat- ute. So in Alabama, under the code provision that " no ob- jection can be taken to an indictment by a plea in abatement or otherwise * * * on any ground owing to the formation of the grand jury, except that the jurors were not drawn in the pres- ence of the officers designated by law," it is decided that it is the uniform ruling to disallow all defenses, excepting the one rest- ing on the statutory ground.*^ So in Kansas, under a statute that no plea in abatement or other objection shall be taken to any grand jury, duly charged and sworn, for any alleged irregularity in their selection, unless such irregularity, in the opinion of the court, amount to corruption, in which case such plea, or objection shall be received, it is decided that although essential provisions of the statute as to the qualification of jurors may be dis- regarded, yet that such disregard is not a sufficient ground upon which to sustain a plea in abatement, unless it be shown that such disregard amounts to actual corruption.** meaner be defective in form or subl- stance, the fact that the Constitution did not require prosecution for misde- meanor by indictment, would not make good that which was bad. So, if an indictment for misdemeanor be found by an illegally constituted grand jury, it follows that it is not a legal pleading on which a prosecu- tion can be instituted. There is but one grand jury, and that is the one referred to in the Constitution, and the formation of which is regulated by statute; and if a body of men be organized into a grand jury without authority of law, it would not be a legal grand jury, and any indictment found by it, whether for felony or misdemeanor, could not sustain a 'criminal prosecution. When, in a case of misdemeanor, a district at- torney elects to prosecute by indict- ment, he must do so through the medium of a legally constituted grand jury, and by an indictment that is good at law, both as to form and substance. To admit a diflFerent contention would lead to a conclu- sion, impossible under our law, that for a misdemeanor a district attor- ney could prosecute by an insufficient indictment, found by an illegal grand jury." 45. Stoneking v. State, 118 Ala. 68, 24 So. 47; Murphy v. State, 86 Ala. 46 ; 5 So. 432 ; Cross v. State, 63 Ala. 40; Boulo v. State, 51 Ala. 18; Brooks V. State, 9 Ala. 9. 46. State v. Skinner,. 34 Kan. 247. Holding that it was not a ground of objection that the names of some of the grand jurors were not found upon 83 § 73 POWEE AND JUEISDICTION OF GeAND JuEY. And in a case in iN'evada, where defendant had not been held to answer before the finding of an indictment against him, and he moved to set it aside on the ground that no list of names selected as grand jurors for the session at which the indictment was found was certified by the officer making the selection, it was held that the motion was properly overruled, since the laws of that State, declaring the ground for a, motion to seit aside an indictment, where the defendant has not been held to answer before the find- ing of the same, include no such ground.*^ § 73. Constitutional provision requiring indictment — ^When construed with reference to common law as to number. — A constitutional provision that " No person shall be held to answer for a capital or otherwise infamous offense, * * * except on presentment or indictment of a grand jury," is to be construed with reference to the common law and the statutes in force at the time of the adoption of the Constitution. Therefore in deter- mining a question, as to the number of persons necessary to a legally organized grand jury, resort must be had to the common law, where there is no Constitution, or provision of the statute in force at the time draignating the number necessary to the forma- tion of the grand jury, or to the finding of an indictment.** At common law a grand jury was composed of not less than twelve nor more than twenty-three persons, and it was rasential to the finding of an indictment that there should be a concurrence of twelve of this number. This rule of the common law is one of the rights guaranteed and secured by a constitutional provision such as the above, and it has been determined that the Legislature has no power under such a provision to authorize the finding of an indictment by less than twelve persons.*® In an early case in Xorth the assessment rolls of the previous E. 115, 10 L. R. A. 50. years. Cited and approved in State 49. English v. Florida, 31 Fla. V. Donaldson, 43 Kan. 431. 340, 12 So. 689; State v. Barker, 107 47. State v. Simas, 25 Nev. 432, N. C. 913, 13 S. E. 115, 10 L. R. A. 62 Pao. 242, decided under Nev. 50; see also Cofifey v. Superior Court Comp. Laws, §§ 4241, 4149, 4150. of Sacramento County, 2 Cal. App. 48. State v. Hartley, 22 Nev. 342; 453, 83 Pac. 580; Brucker v. State, State V. Barker, 107 N. C. 913, 13 S. 16 Wis. 255. 84 PowEE AND Jurisdiction of Grand Jttet, § 74 Carolina it is said, in the consideration of this question : " These great principles of the common law were brought over to this coun- try by our ancestors, and, with an extension of their application to other offenses, were by the Constitution made a part of our funda- mental law, and cannot be violated either by the judiciary or the Legislature."^" So in Florida it has been decided that a statute pro- viding that a grand jury shall be composed of twelve persons, of whom the assent of eight shall be sufficient to the finding of an indictment while constitutional as to the number which shall compose a grand jury is void as to the number necessary to find an indictment, the concurrence of twelve being neces- sary, as at common law.^^ And in North Carolina it has been decided that under such a provision of the Constitution it is not competent for the Legislature to provide that the con- currence of nine members of a grand jury shall be sufficient.^^ Again, where the statute directs that clerks shall issue writs of venire facias for twenty-three grand jurors, to be returned; but makes no provision relative to the number necessary to form a quorum, it is regarded as leaving that to the same rule of the common law, by which it was previously regulated. A provision of this character is merely directory to the clerks, in order that the actual attendance of a suificdent number may bei better in- sured,^* § 74. Where number of grand jurors specified by law — Com- pliance essential — The court can acquire no jurisdiction in the case of an indictment except the grand jury finding it be organ- ized in accordance with the law, and where an indictment has been found by a grand jury which is composed of a number other than that specified, no jurisdiction is conferred upon the court.^* 50. State v. Davis, 2 Ired. L. (N. 13 S. E. 115, 10 L. E. A. 50. C.) 153, 158, per Gaston, J., quoted 53. Commonwealth, v. Wood, 2 with approval in State v. Barker, Cush. (Mass.) 149. 107 N. C. 913, 13 S. E. 115, 10 L. R. 54. Alabama.— Berry v. State, 63 A. 50. Ala. 126, 12 So. 689. 51. English v. State, 31 Ela. 340, California. — People v. Thurston, 12 So. 689. 5 Cal. 69. 52. State v. Barker, 107 N". C. 913, 85 § 74 POWEE AND JUEISDICTION OF GeAND JuEY. The express provisions of the law as to the number which shall be necessary to constitute a grand jury, cannot be altered by the fact that a person may not raise objection until after he has been put upon his trial. A number specified by the law as necessary to con- stitute a grand jury, is essential to the validity of their acts, and a body which is composed of less than the number specified is not a grand jury, and an indictment found by it will be of no force.** ' Iowa. — ^Norris' House v. State, 3 G. Greene, 513. Michigan. — See People v. Thomp- son, 122 Mich. 411, 81 N. W. 344. Texas.— Wells v. State, 21 Tex. App. 594, 2 S. W. 806; Williams v. State, 19 Tex. App. 265; Smith v. State, 19 Tex. App. 95; McNeese v. State, 19 Tex. App. 48 ; Lott v. State, 18 Tex. App. 627. Tbe statutes of the United States as to the number of persons who shall compose a grand jury do not apply to a prosecution for mur- der committed by one Cherokee In- dian upon the person of another within the jurisdiction of the Chero- kee nation. Talton v. Mayes, 163 U. S. 376, 16 S. Ct. 986. 55. Doyle v. State, 17 Ohio, 225. The court said in this case: "No person can be put upon his defense on the charge of crime, or be convicted of crime, except in the exact mode prescribed by law. And whenever it shall be made manifest, in the progress of a criminal prosecution that the legal rights of the person charged have been violated, the court will permit the accused to have the benefit of the error. It is said the prisoner might have exerted his right of challenge to the poll or the array. He might not know that he was charged with crime, or that a bill would be found. But apart from all this, the court have the power only to try a person who has been indicted for crime. What an indict is, is mat- ter of law. What shall constitute a grand jury, how it shall be sum- moned, composed, and organized, is all matter of positive law. No man by express consent can confer juris- diction upon the court, to try him for crime. No man by express consent, can make that an indictment, author- izing the court to try that which in fact was not an indictment. Much less could that be converted into an indictment, which in law was not, by implied consent, derived from waiver of plea. Suppose that a paper, in the form of an indictment should be put upon file, not purporting to be found by a grand jury, could the person charged, by entering a plea of not guilty, confer upon the court power to try and sentence him? No one would pretend it. Yet it is con- tended 'hat if you have the form and not the substance, that lack of vig- ilance or mistake to take advantage of it at the right moment, or in a wrong mode, will convert the shadow into a reality. This is neither true in reason or sound in law; and it h time in criminal prosecutions, that the whole cob-web of legal fiction and technical inference against the ac- cused, should be stricken down. The plea, in this case, is a complete 86 POWEE AND JuEISDICTION OF GeAND JtJEY. § 75 So -where the Constitution of a State, or the statutes, provide that a grand jury shall be composed of a certain number of persons, an indictment found by a body composed of more than the num- ber specified will be void, and in such a ease the fact that a person may consent to trial under an indictment so found, will not operate as a bar to a subsequent prosecution under a valid indictment.^® In Alabama it has been decided that in the organization of a grand jury, where the record discloses that the number drawn to serve on said jury was eighteen, and that only fifteen of said number appeared, and that by reason of an excuse allowed by the court, one other was not required to serve, reducing the number to fourteen, and thereupon the court ordered these persons to be summoned, and the record recited that three named persons "were elected to serve as grand jurors," it cannot be said that such grand jury was illegally organized.^^ § 75. Where one of grand jury excused but necessary number concur. — A constitutional provision that a grand jury shall be composed of twelve persons, but that nine members shall be a quorum to transact business and present bills, is held not to render invalid an indictment which was found by a grand jury answer why the accused should not obeyed; and no other number of men be put upon trial. It goes to the than twelve can constitute a grand whole matter, that there is no indict- jury. Therefore, the act of more ment, there was no grand jury." Per than twelve men constituting a grand Read, J. See also Smith v. State, 19 jury will be utterly void, and is not Tex. App. 95. the basis of jurisdiction. Without 56. Ogle V. State, 43 Tex. Crim. 219, jurisdiction the District Court can- 63 S. W. 1009, 96 Am. St. Rep. 860. not act in felony cases, any more Davidson, J., said in this case, after than can the justice of the peace or a review of the authorities : " Then, the County Court." See also People if these authorities are correct, and v. Thurston, 5 Cal. 69; Wells v. we hold they are, the jurisdiction of State, 21 Tex. App. 594, 2 S. W. 806 the District Court cannot attach in Rainey v. State, 19 Tex. App. 479 felony cases until there has been an Ex parte Swain, 19 Tex. App. 323 indictment preferred by a grand jury. Williams v. State, 19 Tex. App. 265 The Constitution expressly provides Nioheese v. State, 19 Tex. App. 48 that a grand jury shall consist of Lott v. State, 18 Tex. App. 627. twelve men, and having spoken thus 57. Hall v. State, 134 Ala. 90, 32 emphatically its mandate must be So. 750. 87 § 75 POWEE AND JlTEISDICTIOlir OF GbAND JuET, composed of twelve men at tlie time it was impanelled, but which, was subsequently reduced to eleven, at the time the indictment was found owing to the discharge of one of the members who had removed beyond the jurisdiction of the court and acquired a resi- dence in another State.^® And in Iowa, under a statute providing 58. Drake v. State, 25 Tex. App. 293, 7 S. W. 868. Judge Htjet said in this case: "The position as- sumed by counsel for appellant is that, unless there was a grand jury composed of twelve men when the bill was presented, less than twelve were without authority to act, the consti- tutional body being dissolved; that, while it is true that nine members may constitute a quorum, etc., still there must be a body composed of twelve men in order to the existence of a legal grand jury. Grand juries shall be composed of twelve men, but nine members of a grand jury shall be a quorum to transact business and present bills. (Const., art. 5, § 13.) The Supreme Court shall consist of a chief justice and two associate jus- tices, any two of whom shall consti- tute a quorum, and the concurrence of two judges shall be necessary to the decision of a case. Two judges of the Supreme Court constitute a quorum, though the Constitution re- quires that the Supreme Court shall consist of a chief justice and two as- sociates. Now, let us suppose that a member of the Supreme Court should die, evidently there would still be a constitutional court remaining, with full and complete powers to de- cide causes, powers and authority, equal to that possessed by a full bench. Applying that analogy, sup- pose three members of the grand jury should die, would not the remaining nine have all the powers and' func- tions of a body composed of twelve men? Would it be necessary to ren- der their acts legal, for the body, composed originally of twelve men, to remain unbroken? If so, why not apply this rule to the organization of the Supreme Court, and hold that less than three members would not constitute a court? We may be an- swered that the Constitution ex- pressly provides that two members of the court shall be a quorum. To this we reply that the Constitution ex- pressly declares that nine members of the grand jury shall be a quorum to transact business and present bills — a quorum to do precisely that which is objected to by appellant, i. e., pre- sent bills. If, therefore, the death of a member of the Supreme Court will not affect its existence as a court, for the same reason the death of a mem- ber of the grand jury will not dis- solve the grand jury and render the acts of a quorum nugatory. If, how- ever, the Legislature should, in violation of the Constitution, place upon the Supreme bench more than three members, the courts of the country would not hesitate to declare such an organization absolutely void — no court at all. So with the or- ganization of a grand jury. By statute it is made the duty of the judge to impanel twelve men. (Code Crim. Proc, arts. 368, 371, 376, 384, 391.) Twelve constituting the panel. 88 POWEK AND JUEISDICTION OF GeAND JuET. § 76 tliat a grand jury shall be composed of not less than five persons, and that the concurrence of four only shall be necessary to the find- ing of an indictment, it has been decided that though one of the required five is excused by challenge, an indictment found by the four remaining members, who concur therein, will be sufficient.^® § 76. Defects in organization or selection of grand jury which are immaterial. — Mere technical defects or errors, in regard to the selection, drawing or organization of the grand jury, and which do not affect the substantial rights of the accused, will not operate to invalidate or defeat an indiotment.®" And an indict- ment will not necessarily be void because there has been a failure to comply with the law in the selection or impanelling of a grand jury,®^ or by an irregularity in the drawing of one of the names.*^ It is said in this connection that the validity of an indictment is not affected by the manner in which jurors may be drawn, provided they possess the qualifications prescribed by law, and twelve should be impanelled; but from this it does not follow that there must be twelve jurors subject for duty or within the jurisdiction of the court all the while. The object of the provision of the Constitution making nine a quorum was evidently intended to meet any and all con- tingencies of like character as that presented in this case, or the death of a member. There was no error in re- fusing to quash the indictment." This decision was approved and fol- lowed' in Jackson v. State, 25 Tex. App. 314, 7 S. W. 872. 59. State v. Billings, 77 Iowa, 417, 42 N. W. 456. See People v. Butler, 8 Cal. 435. Such a, statnte does not violate a constitutional provision that a grand jury shall be composed of not less than five nor more than iifteen persons. State v. Salts, 77 Iowa, 193, 39 N. W. 167, construing Iowa Acts 1886, c. 42, § 21, and Const., art. 1, § 11, and Amend. 3. 60. State v. Brandt, 41 Iowa, 593. 61. State V. Heusley, 7 Blackf. (Ind.) 324; State v. Bolt, 7 Blackf. (Ind.) 19. See State v. Gee, 104 La. 247, 28 So. 879, holding that a fail- ure to advertise the name of one of the members of a. grand jury did not constitute suflBcient ground for quashing an indictment where it ap- peared that the names of the twelve members of the grand jury finding the indictment were duly advertised. 62. Commonwealth v. Brown, 147 Mass. 585, 18 N. E. 587, 1 L. E. A. 620, so holding where it appeared that the name of a person, who had been drawn as a grand juror, had been left in the box after a vote of the town directing that it be struck from the list of grand jurors which had been prepared. 89 § 77 POWEE AND JUEISDICTION OF GeAND JuET. that the true rule seems to be that an indictmeiit found by a grand jury, one or more of whose members were irregularly drawn, but who possess the requisite qualifications is valid, and the proceed- ings by which a juror goes on the panel do not affect the validity of the indictment.** So it is declared in a case in Maryland, that the authorities show that although there be irregularities in the selection and drawing of a jury, the proceedings will not be set aside unless the court can see that they have resulted or may result to the prejudice of the party accused.®* § 77. Same subject — ^Illustration of rule.— The fact that the list from which the names of grand jurors are to be selected does not contain as many names as is required by statute is held to be no ground for quashing an indictment found by a grand jury which was drawn from such list.''^ And where a judge permitted two more persons to be sworn as grand jurors than was author- ized by statute but subsequently discharged the two last sworn' in before any action had been taken, it was held that the action of the judge in permitting such persons to be sworn was no ground for quashing an indictment which was afterwards found by those re- maining and permitted to act as grand jurors.** And the fact that the court directed twenty-four men summoned' as grand jurors to retire to the grand jury room and to excuse the last man on the list, and then to organize by electing a foreman and that the twenty-three return with the foreman to be sworn, which was done, does not vitiate an indictment found by such grand jury after it had been organized and sworn, as the grand jury is 63. State v. Cambron (S. D. wealth v. Walsh, 124 Mass. 32; 1905), 105 N. W. 241, citing Com- People v. Houghkerk, 96 N. Y. 149; monwealth v. Brown, 147 Mass. 585, Commonwealth v. Moran, 130 Mass. 18 N. E. 587, 1 L. E. A. 620, 9 Am. 281 ; In re Wilson, 140 U. S. 585, 11 St. Rep. 736; Carpenter v. People, gup. Ct. 870, 35 L. Ed. 513; People 64 N. Y. 483 ; Ferris v. People, 35 N. v. Lauder, 82 Mich. 109, 46 N. W. Y. 125; Wilhelm v. People. 72 111. 956. 468; Rolland v. Commonwealth, 82 64. State v. Keating, 85 Md. 188, Pa. St. 306, 22 Am. Rep. 758; People 36 Atl. 840. V. Ah Chung, 54 Cal. 398; Cox v. 65. People v. Harriot, 3 Park. Cr. People, 80 N. Y. 500; State v. Copp, (N. Y.) 112. 34 Kan. 522, 9 Pac. 232 ; Common- 66. State v. ¥ee, 19 Wis. 562. 90 Power and JtrEisDicTioN of Geand Juey. § 77 not complete and ready to transact business until it has been swom.®^ Not will it be a good objection to an indictment that before it Was found and after the impanelling of the grand jury two of the grand jurors were, upon application, discharged that they might attend to their private business, and that others were chosen to act in their place.*® And where a grand juror, who was quali- fied to act, was withdrawn by the direction of the district attorney in good faith but without authority, it was decided that the indict- ment was not thereby vitiated, it appearing that it was subsequently returned to the grand jury and that upon a vote by them, includ- ing the member who had been excluded, the bill was returned.*® Again, in a case in New York, it was decided that a plea in abatement to an indictment found at a court of General Sessions, in the city of New York, alleging that the annual grand jury list was not wholly selected, as required by statute, from the petit jury lists made out by the commissioner of jurors, without any averments of fraud or design, is not good. It was decided that the fact that a few names not appearing on the petit jury lists are accidentally put upon the grand jury list, does not vitiate the whole list, and that it was by accident or oversight is to be presumed, in the absence of allegations of fraud and design.'"* And the fact that the list of grand jurors has not been formally authenticated, as required by a statute, has been held not to be a sufficient ground for setting aside an indictment, there being no evidence of fraud.'' ^ Again, the fact that a person who was drawn as a grand juror without proper notice was present at the time an indictment was found will not invalidate the indictment where such person did not act.'^^ ISTor will the fact that one of the grand jurors who has been challenged and excluded from the delibera- 67. Ridling v. State, 56 Ga. 601. 70. Dolan v. People, 64 N. Y. 485, 68. Denning v. State, 22 Ark. 131. decided under cliap. 498, Laws of 69. Commonwealth v. Bradney, 1853. 126 Pa. St. 199, 17 Atl. 600, 24 W. 71. State v. Ansaleme, 15 Iowa, N. C. 101, 17 Wash. L. R. 618, 20 44. Pitts. L. J. N. S. 63. 72. State v. Clough, 49 Me. 573. 91 §§ 78, 79 POWEE AND JUKISDICTION OF GeAND JuEY. tions of the case is present in court with the other grand jurors when the indictment is presented vitiate the indictment.''' § 78. Where person drawn as grand juror is personated by another. — Where a person who is regularly drawn by the proper officers^ as a member of the grand jury, is falsely personated by another person who has the same surname, and the latter is sworn and acts as a member of the grand jury, in place of the one who was drawn, his conduct will be fatal to the organization of the grand jury, and a good plea to an indictment found by it.'* § 79L Court cannot remove or change members of grand jury. — Where the selection and impanelling of a grand jury is a mat- ter regulated by statute, and no power is conferred upon the prosecutor to challenge the panel or individual members of the jury, or upon the court to select or create, the court cannot, as an incident to jurisdiction, remove, reform or change the members of the grand jury. So it is said in a recent case in which this ques- tion is considered : " The selection and impanelling of grand jurors are matters of statutory regulation. The code confers no authority upion the prosecutor to diallenge the panel or indi- vidual members of the grand jury, and as the court has not the 73. People v. Gatewood, 20 Cal. own, and to present no person from 146. envy, hatred or malice, nor leave any 74. Nixon v. State, 68 Ala. 535. one unpresented from fear, affection, The court declared in this case: "It reward, or the hope thereof. (Code, is impossible to estimate, and equally § 4755.) If we can permit the false impracticable to speculate upon the personation of one grand juror, the influence exerted upon the delibera- same rule of justification must, of tions of such a body by one bold, bad necessity, apply to any greater num- man, who corruptly insinuates him- ber. There can be no rule of limita- self into their secret counsels, unre- tion, in such an important matter, strained by the safeguard of ad- which can stand the test of logical judged qualifications. He may, pes- soundness, short of total exclusion, sibly, have no other purpose in view We think the facts set up in the plea than the premeditated violation of in abatement and the motion to the duties imposed by a grand juror's quash, if true, entirely vitiate the in- oath, which are to keep secret the dictments." Per Sojiebtille, J. State's counsel, his fellows' and his 92 POWEK AND JUEISDXOTION OF GkAND JiTET. § 80 power to select or create, neither has it the power as an incident to jurisdiction, to remove, reform, or change the members of the jury. If by virtue of this incident to jurisdiction the court has the discretionary power to reform the jury for one purpose, it may for another, and if four, then may more, or all of the jurors be changed, and thus the obvious policy of the law to constitutei and preserve that body independent of control and influence from the court, would be thwarted. Although the jurisdiction of the grand jury is co-extensive vnth that of the court, for which they are to inquire, both as to extent of territory, and the offenses to be investigated, and although they are sworn and charged by the court, still ini their presentments they should act as a distinct and separate body, free from any fear, favor or affection resulting from the court or any other influence. If the court has the power to create, or change them at pleasure, or upon an expartemery affidavit, they might soon become the subjects of fear and favor, or of prejudice and popular caprice; the wholesome safeguards of the law for their selections rendered abortive, and the stability and independence of the panel greatly impaired." '"^ § 80. Grand jury should be sworn. — It is essential to the proper organization of a grand jury, that they be sworn.''* And it has been said that every presumption is in favor of the cor- rectness of the action of the court in the swearing of a grand jury, until the contrary is made to appear.'^'' But it should appear by the record that the grand jury Was sworn, and the omission to show such fact cannot be supplied by a, recital in the indictment that it was sworn.''* An objection, however, to the formation of the grand jury, that the foreman was not sworn, will not be sustained where there is a recital in the records, that " The grand jurors aforesaid were duly sworn and charged by the court."'* 75. Keitler v. State, 4 G. Greene See, also. State v. Loving, 16 Tex. (Iowa), 292. Per Geeene, J. 558, holding that where the record 76. Riddling v. State, 56 Ga. 601. recites that the foreman and grand 77. Allen v. People, 77 III. 484. jurors "were duly sworn as the law 78. Abram v. State, 25 Miss. 589. prescribes " it is error to sustain a 79. Bruen v. People, 206 111. 417, motion quashing the indictment on 69 N. E. 24. the ground that it did not appear 93 § 81 POWEE AND JUEISDICTION OP GeAND JuEY, It has further been decided in this connection that any officer that is authorized by law to administer oaths generally, may, under the direction of the court, lawfully adnunis.te(r the pre- scribed oath to a grand jury, and so it is not essential that the grand jury should be sworn by the clerk or the deputy derk of the court, provided, of course, the statute does not so require.** Again, though a grand jury may be excused from taking an oath, yet if an indictment purports to be on the affiirmation of a grand jury, it has been declared that it must appear that they alleged themselves conscientiously scrupulous of taking oath.^^ § 81. Grand jury must be composed of persons qualified to act. — One of the essentials to a vaKd indictment is that it must be found by grand jurors, who are qualified to serve, and if it appears thit one or more of the grand jurors who have found an indict- ment were disqualified, the indictment so found will be vitiated if the objection thereto is made in due time.*^ It will, that the oath prescribed for the fore- man -was taken by him. In such a case the presumption arises that the proper oath was administered. 80. Allen v. People, 77 III. 484. 81. State V. Fox, 9 N. J. L. 244, holding that in the case of an indict- ment which purports to be on the af- firmation of some of the members of the grand jury it should appear that they were legally entitled to serve on their affirmation. State v. Harris, 7 N. J. L. 361. 82. XTmited States. — Crowley v. United States, 194 U. S. 461, 24 S. Ct. 731, 48 L. Ed. 1075; United States V. Jones, 31 Fed. 725. Florida.— Kitrol V. State, 9 Fla. 9. Georgia. — Reich v. State, 53 Ga. 73. Indiana. — State v. Herndon, 5 Blaekf. 75. Maine. — State v. Symonds, 36 Me. 128. New Jersey. — State v. Rockafel- low, 6 N. J. L. 332. North Carolina. — State v. Dur- ham Fertilizer Co., Ill N. C. 658, 16 S. E. 231. Texas.— Martin v. State, 22 Tex. 214; State v. Foster, 9 Tex. 65. 'Wisconsin. — State v. Cole, 17 Wis. 674. Rnle in Federal conrts as to qnalification. — " In matters which relate to the qualifications and ex- emptions of jurors, the Federal court must be governed by the laws of the States in which such courts are held. In designating, summoning, forming, and impanelling juries, the Federal courts have a large discretion, and may by rules or order adopt the State methods and usages so far as practic- able, as a strict conformity with State laws is not required. There ia no statute expressly requiring Fed- eral courts to conform their practice. 94 POWEE AND JuEISDICTIOH OF GeAND JuEY. § 81 ho-wever, be presumed, until the contrary appears, that persons summoned by the sheriff, who served as grand jurors,, were duly qualified and were selected from the body of the county pleading and modes of procedure, in criminal trials, to the laws of the State in which they are held." United States v. Kilpatrick, 16 Fed. 767, per Dick, J. As to the time and manner of raising the objection, it is said in a case in Texas, which is referred to by the United States Supreme Court, in Crowley v. United States, 194 U. S. 461, 472, 24 S. Ct. 731, as a leading case upon this question, that " The better infor- mation to be deduced from the authorities, to which we have access, seems to be, that irregularities, in selecting and impanelling the grand jury, which do not relate to the com- petency of individual jurors, can in general only be objected to by a chal- lenge to the array. But that the in- competency or want of the requisite qualifications of the jurors may be pleaded in abatement to the indict- ment. And this doctrine and distinc- tion seems founded on principle. It is the right of the accused to have the question of his guilt decided by two competent juries before he is condemned to punishment. It is his right, in the first place, to have the accusation passed upon, before he can be called upon to answer to the charge of crime, by a grand jury, composed of good and lawful men. If the jury be not composed of such men as possess the requisite qualifi- cations, he ought not be put upon his trial upon a charge preferred by them; but should be permitted to plead their incompetency to prefer the charge and put him upon his trial, in avoidance of the indictment. Otherwise, he may be compelled to answer to a criminal charge preferred by men who are infamous, or un- worthy to be his accusers. And it may be that he will not have an op- portunity afforded to question their competency before the finding of the indictment. For the accused is not supposed to be present when the grand jurors are impanelled; he may not have been the subject or com- plaint or of suspicion; and if he could not plead to the indictment, in such a case, the incompetency of his accusers, the right to have the accu- sation preferred by good and lawful men might be virtually denied him. It is for the purpose, therefore, of se- curing to the accused a substantial right, affecting, it may be, his char- acter and good name, if not his per- sonal security, so that he is allowed to plead in abatement or in avoid- ance of the charge, the incompetency of the persons by whom it was pre- ferred. But if the jurors who pre- ferred the charge are good and law- ful men; unexceptionable as respects qualifications, it can be of no conse- quence to the accused in what man- ner they were selected, or how im- panelled, while it may be of the ut- most consequence to the public that the administration of justice be not delayed or defeated by mere technical objections to the regularity of the proceedings, of those who are ap- 95 ,§ 82 POWEE AND JuEISDICTIOIf OF GeAND JuEY. as required by law.*^ Again, unless the want of qualification of a grand juror is apparent on the face of the indictment, or upon the record, it is decided that it cannot be taken advantage of by a motion to quash, but that it must be pleaded in abatement.^* And where it is provided by law that where a defendant has not been held to answer before the finding of an indictment against him, he may move to set it aside on any good ground for challenge either to the panel or to any individual grand juror, it has been decided that, where a defendant had not been held to answer before the finding of an indictment, and he moved to set it aside on the ground that the several members of the grand jury were not shown to be qualified grand jurors, the motion was properly overruled where the ground of the motion was not a statutory ground of challenge to an individual grand juror within the provisions of the statute setting forth the grounds for chal- lenge.*^ § 82i. Waiver of objection to want of qualification. — A person who is accused of an offense, and who is aware of the disqualifications of some juror or jurors, and who fails to make obj«;tion to their serving, will be regarded as having waived his right to object thereto, and will be estopped from demanding as a matter of right a new trial on the ground of such disqualification.®^ pointed for the purpose of properly 86. State v. Hartley, 22 Nev. 342. distributing and equalizing the bur- Judge Bonnifield, in a review of the den of the jury service. It is in these decisions, said, in conclusion: "It considerations which have respect to is, therefore, evident from the great the rights of the citizen on one hand, weight of the authorities, and from and public convenience on the other, the statute and common law, that a that the rules of the law on these sub- defendant can waive his objections to jects are founded." Vanhook v. the qualifications of jurors, and if he State, 12 Tex. 268. fail to challenge before the jury is 83. Bruen v. People, 206 111. 417, completed, knowing of the disqualifi- 69 N. E. 24; Thayer v. People, 2 cation, he is estopped from demand- Dougl. (Mich.) 417. ing, as a matter of right, a new trial 84. State v. Foster, 9 Tex. 65. on the ground that the jury were not 85. State v. Simas, 25 Nev. 432, omni excepHone majores, and that, in 62 Pac. 242, decided under Nev. contemplation of the Constitution, he Comp. Laws, §§ 4241, 4150. has not, in such case, after verdict, 96 PiOWEE AND JUEISDICTION OF GrAND JuET. § 83 § 83. Grand jurors must be qualified — Rule illustrated. — An indictment may be rendered' void by the fact that one serving upon the grand jury is not a citizen of the United States,^'^ or that one of the members of the jury is not a freeholder or a house- holder in the coimty,®* or that one selected as a juror has not paid his taxes for the preceding year,** or that one of the members of the grand juiy, by which the indictment was returned, had pre- viously served on a jury by which a verdict of guilty against the prisoner for the same offense had been rendered.®"' Again, where the statute provides that persons between the ages of twenty-one and sixty are hereby made competent jurors, it is essential to the proper organization of a grand jury, that the persons should possess the qualifications prescribed, and one who is over sixty years of age is not a competent grand juror.®^ The mere fact, however, that a juror otherwise qualified, was selected by the court from the bystanders, instead of a juror from the venire, is held to be no ground for abating an indictment, found by him and twelve othea- grand jurors, taken from the venire, constitutional ground for the objec- tion that he has not been triel by a • constitutional jury.' " 87. State v. Cole, 17 Wis. 674. Wliere a statute or code clearly contemplates that a grand juryman must be a citizen, it will be a good plea to an indictment if made on arraignment that one of the grand jurors is an alien, and not qualified to sit as a grand juror. Keich V. State, 53 Ga. 73. 88. State v. Eoekafellow, 6 N. J. li. 332; Martin v. State, 22 Tex. 214; Commonwealth v. St. Clair, Gratt (Va.), 556. 89. State v. Durham Fertilizer Co., Ill N. C. 658, 16 S. E. 231. 90. United States v. Jones, 31 Fed. 725. 91. Kitrol V. State, 9 Fla. 9. The court said: "Did the statute end where it says, ' shall be liable to serve,' then we might with propriety say the statute leaves it a question of privilege with the juror, but the statute goes further, it declares that such persons are competent jurors, etc. It follows that if such persons are competent, others not possessed of such qualifications are not compe- tent. It was evidently the intention of the Legislature to secure for the protection of the citizen, whose rights might be affected, a grand jury com- posed of members possessing certain qualifications defined by the law. In giving this statute such a construc- tion, we carry out that intention. We are, therefore, of the opinion that a, person over 60 years of age is not, under the statute, a competent juror." Per FOEWAED, J. 97 § 84 POWEE AND JUEISDICTION OF GeAND JuEY. where an indictment may be validly found by such, number.®* And it has been decided that the fact that one of the grand jurors who present a bill of indictment against a town for not making and opening a road is, at the time, a ratable inhabitant of such town, and therefore interested in the subject matter of it, is no cause why such indictment should be quashed, for if interested his interest would be to shield the town, and would therefore operate in its favor.''* So it has also been determined that the fact that a foreman of a grand jury which found an indictment for an offense punishable with a fine to be paid to the town, was a taxable inhabitant of the town is no defense to the indictment,*^ nor is an indictment vitiated by the fact that when it was pre- sented one of the grand jurors was domiciled in another State, and therefore beyond the jurisdiction of the court.** And where a statute provides that if a person drawn as a grand juror, is exempt by law, or is unable, by reason or sickness or absence from home to attend as a juror, his name is to be returned to the box, and another drawn instead, this necessarily implies that the decision is to be made on the spot, and that such decision is final. And where, under such a statute, the name of a person was drawn, and the Board of Aldermen, upon whom devolved the duty specified in the statute, selected another name in the place of that of a person originally drawn and who was said, by a member of the board, to have removed from the town, it was held that the decision of the aldermen, if honestly made, was final, though it may have been wrong.** § 84. That a person is exempt from service as grand juror does not disqualify. — The fact that certain ofiicers of the State are declared to be exempt from jury service does not disqualify them from acting as members of a grand jury. A privilege given them by such a statute is a personal one, and may be waived 92. Epperson v. State, 5 Lea 95. Drake v. State, 25 Tex. App. (Tenn.), 291. 293, 7 S. W. 868, approved and fol- 93. State v. Newfane, 12 Vt. 422. ^"^^^ "" •^^'='^^°° ^- ^tate, 25 Tex. App. 314, 7 S. W. 872. 94. Commonwealth v. Ryan, 5 96. Commonwealth v. Krathofski, Mass. 90. 171 Mass. 450, 50 N, E. 1040. 98 Power and Jubisdiction of Geand Juey. § 85 by them at their pleasure. Therefore an indictment found by a grand jury, some of whose members are exempt from serving, under the laws of the Sitate, will not affect the validity of the indictment.*^ § 85. Expression of opinion by grand juror as ground of objec- tion. — It may be stated as a general rule that an objection that a grand juror was not qualified to act by reason of the fact that he had expressed an opinion as to the guilt of the accused should be raised before the juror is sworn, or at least before the indictment is found, and that after an indictment has been found it cannot be objected to on this ground.®* So it is said in a case in Connecticut, in which the decisions are reviewed : " I have examined, with considerable care, the authorities bear- ing upon this question, but find it nowhere laid down that the expression of an opinion by a grand juror, before he was summoned or returned and sworn, that the defendant was guilty, was ever a ground of challenge in the English courts. But in this country there are some respectable authorities in favor of al- lowing it to be a sufficient ground of challenge; whilst othesr authorities, equally respectable, hold the contrary. Nearly all the authorities of the former class, however, hold that the exception! must be taken before the juror is sworn, and if taken afterward, it cannot be allowed." *® And it is said in a case in Georgia : " We 97. Owens v. State, 25 Tex. App. New Jersey. — State t. Rickey, 19 552. See, also. State v. Wright, 53 N. J. L. 83. Me. 328. New York.— People t. Jewett, 3 98. Connecticnt. — State v. Ham- Wend. 314. Compare, State v. Cla- lin, 47 Conn. 95, 36 Am. Rep. 54. rissa, 11 Ala. 57; State v. Hughes, 1 Georgia. — Lee v. State, 69 Ga. Ala. 658; People v. District Court, 705. 29 Colo. 83, 66 Pac. 1068. Illinois. — ^Musick v. People, 40 111. It is beld to Ije no gronnd of 268. cballenge in some cases. State v. Massaclinsetts. — Commonwealth v. Hamlin, 47 Conn. 95, 36 Am. Rep. 54; Woodward, 157 Mass. 516, 32 N. E. Musiek v. People, 40 111. 268; State 939, 34 Am. St. R. 302. v. Rickey, 10 N. J. L. 83. Nebraska. — Patrick v. State, 16 99. State v. Hamlin, 47 Conn. 95, Neb. 330, 20 N. W. 121. 36 Am. St. Rep. 54, per Hotot, J. 99 § 86 PbWEE AND JUEISDICTION OF GeAND JuUY. presume it rarely occurs that a crime, especially of great magni- tude, does not elicit an expression of opinion from that class of citizens who make up the grand jury ; to allow this espression to disqualify and vacate an indictment would entail endless delay and embarrassment in the prosecution of crime, and too often secure immunity to the criminal." ^ And where a statute or code speci- fies the ground on which a motion to set aside an indictment may be based, the grounds so specified are held to be exclusive of others.. And it is decided in such a case that a motion of this character cannot be founded on the fact that a mem'ber of the grand jxiry finding an indictment had previously formed and ex- pressed an unqualified opinion of the defendant's guilt, this not being one of the grounds enumerated.^ I- ' § 86. Same subject — Application of rule — The fact that a grand juror had formed an opinion as to the guilt of an accused person from testimony given by the latter before the grand jury upon its inquiry into another offense has been held not to affect his competency.* And in an early case in New York it was decided 1. Betts V. State, 66 Ga. 508, 515, grand jury was engaged in the dis- per Speeb, J. charge of its official duties, in in- Z. State V. Baughman, 111 Iowa, quiring into a public offense against 71, 82 N. W. 452. the people of the State, triable 3. People V. Northey, 77 Cal. 618, within the county of their impeach- 19 Pac. 865. The court said in this ment. Northey is called as a witness case: "Now conceding that an in- before them and testifiea under oath dictment can be vitiated by the par- in the presence of the jury to facts ticipation of a grand juror in finding which inculpate him in a public of- it, who had formed, before entering fense within the scope of their in- on its examination, an unqualified, quiry. ♦ * ♦ Can such an opinion fixed and decided opinion that the de- — is it possible that an opinion sol fendant so indicted was guilty, and formed can be disqualifying as to any for that reason should be set aside, member of the grand jury to act can it be that an opinion formed upon an indictment of the witness under the circumstances in evidence for the offense of which he admits his herein is of that character? The guile? The opinion which disquali- facts upon which the opinion of each fies is one formed from something grand juror was formed herein came heard outside, which has none of the to his knowledge in the discharge of sanction of an oath and is merely his duty as a grand juror, when the hearsay." Per Thornton, J. 100 POWEB ANB JUKISDICTIOW OF GkAND JuRT. § 87 •that while it was a good cause of exception to a grand juror that he has formed and expressed an opinion as to the guilt of the party where the case probably will be presented to the considera- tion of the grand jury, such exception must be taken before the indictment is found, and will not be heard afterwards.* So it has been decided that it is not a good plea in abatement to an indictment, that one of the grand jurors who found it had previously been a member of the coroner's jury, land found that the deceased had come to his death at the hands of the defendant and that the killing was murder.^ And in a case in Tfennessee it was decided that it was not a good plea in abatement that the fore- man of a grand jury by which the indictment was found was one of the committing magistrates.* But in a case in the United States Circuit Court it is decided that an indictment should be dismissed where it appears by a plea in abatement that one of the grand jury who found the indictment was a member of a special jury which at a previous term returned a verdict of guilty against the prisoner for the same offense, which verdict has since been set aside.'' § 87. Inquisitorial powers of grand jury. — It i^ said in an early case in Missouri that it is the duty of the grand jury to inquire diligently of all offenses against the law and that they may interrogate witnesses in a general way without an indict- ment having been drawn up charging some partioular person or persons with crime.® And in a case in North Carolina it is de- 4. People V. Jewett, 3 Wend. (N. quire that the grand jurors shall be Y.) 314. The objection urged in this free from any previous opinion, as to case was that the foreman of the the guilt of the accused." Per Mc- grand jury had published a pamphlet Faeland, J. See also United States in regard to the defendant which con- v. Belvin, 46 Fed. 381. eluded with strictures on the latter's 7. United States v. Jones, 31 Fed. conduct, showing the estimation in 725. which the juror held the defendant on 8. Ward v. State, 2 Mo. 120, 22 the subject of the charge againsti Am. Dec. 449. But see State v. Wil- him. cox, 104 N. C. 847, 10 S. E. 453, 5. Betts V. State, 66 Ga. 508. holding that the members of the 6. State V. Chairs, 9 Baxt. (Tenn.) grand jury have no right to summon 196. The court said: "We do witnesses to appear before them ex- not understand that our laws re- eept by the permission of their fore- 101 § ST POWEE AND JUEISDICTIOIT OF GuAND JiTEY. clared that : " There can be no question about the fact that, at common law, a grand jury was charged especially with inquisi- torial duties, and where there is probable cause to suspect that the law had been violated, they were considered bound by their oaths to institute inquiry and investigation. They had originally 'the right to send for witnesses and have them sworn to give evidence generally, and to found presentments on the evidence of such witnesses.' " ® And the fact that magistrates are required by statute to hold preliminary examination in cases beyond their jurisdiction does not oust the grand jury of their ancient right to investigate matters within the county.^" But though it is the duty of the grand jury to investigate criminal offenses, they do not possess power to summon witnesses before them for the purpose of ascertaining whether there has been any violation of the law, where no specific violation of any law is known. The grand jury cannot, for the purpose of finding an indictment, summon persons before them to give their general knowledge of the violation of the penal laws when the fact to be investigated has not been discovered by the grand jury or any member thereof and when that body knows nothing of the person connected with or guilty of the offense. In this connec- tion it is said in a case in Georgia : " It is true that each member of the grand jury is under a solemn obligation to make diligent inquiry and to present truly all infractions of the criminal law, which may be given the body in charge, or may come to the knowledge of any of them touching the service in which they are engaged. That the powers of the body are inquisitorial to a certain extent is undeniable ; yet they have to be exercised within well defined limits. Anything they can find out by their own inquiry and observation is legitimate and praiseworthy, but they have no authority to force private persons or the officers of the courts to disclose to them who may have violated the public laws, and the names of persons by whom such infractions can be established ; — in short., to make every man a spy upon the man, or of the solicitor as prescribed 10 S. E. 453, per Avebt, J., citing by the Code, § 743. Wharton on Cr. Law, § 457, note h. 9. State V. Wilcox, 104 N. C. 847, 10. State v. Brown, 62 S. C. 374. 102 PowEE A^'D Jurisdiction of Geai^d Jl'et. § 8^ conduct of his neighbors and associates, and compel him to violate the confidence implied in holding social intercourse with his fellows by forcing him to become a public informer. Such an exercise of power would be in derogation of general principles essential to the enjoyment of rights regarded as sacred and paramount in the intercourse between man and man; and these rights have been carefully guarded; not only by the spirit of our law, but by its express enactments." ^^ 11. In re Lester, 77 Ga. 143, 147, per TTat.t,, J. "As the grand jury is an inform- ing and accusing body, which makes its investigations and holds its de- liberations in secret, and is irrespon- sible for its oflBcial action, upon matters of fact, except before the tribunal of public opinion, it is very important that its powers, duties and methods of procedure should be well understood, and be strictly confined within conservative and salutary limits, imposed by law, which experi- ence has shown to be necessary to subserve the public good, and to ac- complish a. just and impartial admin- istration of the criminal law. In State courts, where common law jurisdiction over offenses is exercised, the powers and duties of grand juries are more extensive and re- sponsible than in Federal courts, which have cognizance only of of- fenses defined and declared by acts of Congress; and there are special offi- cers and agents appointed to make preliminary investigations of of- fenses against national laws. State grand juries have a general super- vision over the peace, good order, and well-being of society, and may make presentments of offenses which are within their own personal knowl- edge and observation, or such as are of public notoriety, and injurious to the entire community, but they can- not make inquisitions into the gen- eral conduct and private business of their fellow-citizens and hunt up of- fenses by sending for witnesses to investigate vague accusations, founded upon suspicions and in- definite rumors. The repose of so- ciety, as well as the nature of our free institutions, forbid such a dan- gerous mode of inquisition." United States V. Kilpatrick, 16 Fed. 768, per Dick, J. " The English practice which re- quires a preliminary investigation, where the accused can confront the accusers and witnesses with testi- mony, and have counsel, is more con- sonant to justice and the principles of personal liberty. The powers of the grand jury, therefore, should not be extended farther beyond these con- servative and salutary principles, than is clearly warranted by public necessity and the most approved precedents. A prosecuting officer has no right, of his own motion, or upon that of an officious, if not an inter- meddling and malicious prosecutor, to send witnesses to the grand jury room, merely to be interrogated whether there has been any violation 103 § 88 POWEE AND JuEISDICnON OF GeAND JuEY. In Pennsylvania it has been declared that, though it is held in the Federal courts and in some of the States, that the grand jury alone may call witnesses and institute all prosecutions of their own motion and without the aid of the district attorney, the power of the grand jury in that State is more restricted, and the better opinion is that they can act only upon and present offenses of public notoriety, and such as are within their own knowledge; such as are given to them in charge by the court and such as are sent up to them by the district attorney; and that in no other oases can they indict without a previous prosecution before a magistrate, according to the terms of the Bill of Eights.^* In Tennessee it has been decided that the grand jury has no inquisitorial power with reference to the offense of engaging in a riot, such offense not having been named in any of the statutes conferring that power upon the grand jury.^^ § 88. Preliminary examination or hearing not generally neces- sary. — It is a general rule that a grand jury has full power to find an indictment against a person though there has been no preliminary hearing or eixamination before a magistrate, pro- vided, of course, that such hearing or examination is not, of the criminal law, within their the accused, indorsing upon it the knowledge. The law denounces such name of the prosecutor, as such, inquisitorial powers, which may be with such other witnesses as he may carried to the extent of penetrating desire, and send the bill with the every household, and exposing the witnesses to the grand jury." Lewis domestic privacy of every family. v. Board of Commissioners of Wake The repose of society, as well as the Co., 74 N. C. 197, per Btnum, J. nature of our free institutions, fon- 12. McCullough v. Commonwealth, bid such a dangerous mode of inqui- 67 Pa. St. 30; see also Common- sition. While the grand jury may wealth v. Grece, 126 Pa. St. 531, 17 thus proceed' in prosecutions insti- Atl. 878; Rowan v. Commonwealth, tuted by themselves, upon their own 82 Pa. St. 405; Commonwealth v. knowledge and observation, private Morse, 24 Pa. Co. Ct. 221. individuals who may desire to prose- 13. State v. Lewis, 87 Tenn. 119, cute offenders, have the right to in- 9 S. W. 427; State v. Lee, 87 Tenn. form the solicitor and have him to 114. frame a bill of indictment against 104 POWEE AND JUEISDICTION OF GeAND JuET. § 88 either by a constitutional or statutory provision, made a pre- requisite to the right of the grand jury to so act.^* So in Maryland it has been decided that in this State grand juries have plenary inquisitorial powers, and may lawfully them- selves, and upon their own motion, originate charges against ofEenders, though no preliminary proceedings have been had before a magistrate, and though neither the court nor the States attorney has laid the matter before them.^® The court said in this case: " That grand juries may on their own motion institute all prose- cutions whatever is a view which was generally accepted at the institution of the Federal government, and was in accordance with the English practice then obtaining. * * * The peace, the government and the dignity of the State, the well-being of society and the security of the individual demand that this ancient and important attribute of a grand jury should not be narrowed or interfered with when legitimately exerted. That it may, in some circumstances, be abused is no sufficient reason for denying its existence. Though far-reaching and seemingly arbitrary, this power is at all times subordinate to the law, and experience has taught that it is one of the best means to preserve the good order of the commonwealth and to bring the guilty to punishment." i* And it is also decided that though there may be a law in force, at the time the offense is committed, requiring that the accused be sent before a justice for an examination, if a law is subse- quently passed, which omits such requirement, and the accused is indicted after it is passed, a preliminary examination need not be had.*^ And the right of a grand jury to find an indictment 14. California. — People v. Grol- Y. Supp. 57; French v. People, 3 denson, 76 Cal. 328, 19 Pae. 161. Park. Cr. R. 114. Idalio. — State v. Schieler, 4 Ida. Pennsylvania. — Common-wealth v. 120, 37 Pae. 272. Taylor, 12 Pa. Co. Ct. R. 326. Louisiana. — State v. Bunger, 14 'West Virginia. — State v. Mooney, La. Ann. 461. 49 W. Va. 712, 39 S. E. 657. New Hampshire. — State v. Web- 15. Blaney v. State, 74 Md. 153, ster, 39 N. H. 96. 21 Atl. 547. New York. — People v. McCarthy, 16. Per McSherby, J. 168 N. Y. 549, 61 N. E. 899; People 17. Jones v. Commonwealth, 86 V. Diamond, 72 App. Div. 281, 76 N. Va. 661. 10.5 § 89 Power and Jukisdiction of Geand Jury. cannot be affected by the pendency of the examination of the accused before the coroner/® or before a police magistrate or other officer authorized to issue a warrant for the arrest and appre- hension of the criminal offenders.^* § 89- Same subject — Contrary view. — In some jurisdictions, however, it has been decided that an indictment cannot be found unless there has been a preliminary examination, or the right thereto has been waived,^" or unless the accused has been previously committed or bound over.^^ And where a preliminary examina- tion is a prerequisite to an indictment, it is decided that if the indictment includes an offense for which the prisoner has not been 18. People V. Molineaux, 26 Misc. R. (N. Y.) 589, 57 Supp. 643. 19. Matter of Gessner, 53 How- ard's Prac. N. Y. 515 ; People v. Hef- fernan, 5 Park. Cr. R. (N. Y.) 393 ; People v. Horton, 4 Park. Cr. R. (N. Y.) 222. In the case of People v. Hyler, 2 Par. Cr. R. 566, Judge Cowels says, in considering this question: *' I will not deny that in many cases, if the grand jury are apprized of the facts that the party is under arrest, and that the committing magistrate is proceeding with a full examination into the facts and circumstances at- tending the alleged offense, and par- ticularly in that class of cases the prosecution of which is initiated upon the complaint of the individual, and 80 assume a character in some degree personal to the prosecutor, it would be very wise and judicious in the grand jury to defer action until the magistrate has made return of all testimony taken before him. This will always enable both the grand jury and the public prosecutor, by an inspection of the return, to judge of its character and form some opinion as to the probability of guilt or inno- cence, and the propriety of further prosecution. Such a discretion, if it exists on the part of the grand jury, would apply to all those cases where the alleged complaint is made to a justice of the peace, and to all other eases where a return of the proceed- ings and examinations had, are not made or the witnesses recognized to appear and testify before the grand jury, until the final close of the in- vestigation before the committing magistrate. But an examination of the statute will show that in this case the grand jury possessed no such discretion. That they could not, had they been apprized of the fact that these parties were imder arrest and before the coroner for ex- amination, defer their own action, but were bound, if the testimony warranted, to indict." 20. Butler v. Commonwealth, 81 Va. 159; Jackson v. Common., 23 Grat. (Va.) 919. 21. State V. Jackson, 32 Me. 40. 106 Power and Jurisdiction of Grand Jury. § 90 tried or examined, the clause thereof which charged such offense should be quashed.^^ And where it is alleged that a party has been bound over by a police court or justice, to answer at the Supreme Court for the same offense charged in the indictment, it will not be inferred, because the asault is charged in different terms, that the same offense is not intended.^^ But though a person charged with a felony is entitled to a preliminary examination, under the statute, it is, however, held that it is too late, after verdict and judgment against him, to assert his claim for the first time in the Appellate Courb.^* In the case of a joint indictment, the fact that it is irr^;ular, as to one, owing to there having been no preliminary examination as to him, will not invalidate it, in respect to the other person indicted, where he has had a preliminary examination and been bound over.^' § 90. Necessity that accused be in custody. — ^Wiere there is no statutory provision requiring it, it has been decided that a bill of indictment may be presented to the grand jury by district attorney without the previous arrest of the defendant on a war- rant supported by an affidavit.^® It may, however, by virtue of the express provisions of a statute, be a prerequisite to the finding of an indictment that the accused shall have been previously com- mitted or bound over.^'^ Under an early statute in Missouri it was made a misdemeanor for a grand juror, a judge, prosecuting attorney, or other officer of any court, to disclose the fact of any indictment, for a felony, being found, unless the defendant was in custody or on bail.^* Where it is essential to the validity of an 22. Seott V. Commonwealth, 14 See Commonwealth v. Shupp, 6 Kulp. Grat. (Va.) 687; Clere v. Common- (Pa.) 430. wealth, 3 Grat. (Va.) 615. 27. State v. Jackson, 32 Me. 40, 23. State v. Bean, 36 N. H. 122. decided under Stat. 1842, ch. 27, § 1. 24. State v. Stewart, 7 W. Va. 28. State v. Corson, 12 Mo. 404, 731, 23 Am. Rep. 623. wherein the court held that under 25. State v. Jackson, 32 Me. 40. the provisions of the statute it was 26. State v. Bullock, 54 S. C. 300, the duty of the clerk not to enter on 32 S. E. 424; State v. Bowman, 43 his docket, or minutes or records the S. C. 108, 20 S. E. 1010 ; United fact of the grand jury finding a bill States T. Kilpatrick, 16 Fed. 765. oi indictment against a defendant for 107 § 91 POWEE AND JUEISDICTTON OF GkAND JuKY. indictmeiit that tlie accused should have been in custody and it does not appear from the record whether he was or was not, it will be presumed that he was in custody.*® § 91. Where apprehension of offender a ground of jurisdic- tion. — When the apprehension of an offender is made the ground of jurisdiction, such apprehension must have occurred prior to the finding of the indictment and must be alleged therein. This principle has been established in several cases, under a stat- ute providing that an indictment for bigamy may be found in the county in which such subsequent or second marriage or co- habitation shall have taken place, or in the county in which the offender may be apprehended.*" a felony, unless he be in custody or on bail, nor to enter the continuance of the cause from term to term. The court said in this connection : " He should keep a private memorandum book, in which all such indictments' for felonies are entered, and which, together with the indictments, should not be open to the inspection of any person except the officers mentioned in the statute; and such indictment should never be docketed nor entered on the minutes nor records of the court until the defendant is in cus- tody; otherwise the statute is nuga- tory. Why require the secrecy under a penalty of a misdemeanor if the of- ficer keeping the records is required to docket and note the case and the continuance thereof from term to term? What is the object of these statutory provisions? What evil was to be guarded against? Crim- inals, knowing that they had been in- dicted, often made their escape be- fore the officers could arrest them. It was to prevent this and to render the administration of the criminal law more efficacious, officers were re- quired not to disclose the finding of indictments for felonies; grand jurors were under the same requisi- tion. Indictments were not to be open to inspection. All this was to be kept secret until the defendants should be arrested." Per Rtland, J. 29. Harrington v. State, 36 Ala. 236. 30. State v. Fitzgerald, 75 Mo. 571, decided under Rev. Stat., § 1536, as to indictments for bigamy. State V. Griswold, 53 Mo. 181. See Collins V. People, 1 Hun (N. Y.), 610, de- cided under 3 Rev. Stat. (5th ed.) 968, I 10. Compare State v. Sweet- sir, 53 Me. 438, decided under Rev. Stat., ch. 124, I 4, providing that " the indictment for such ofifense may be found and tried in the county where the offender resides, or where he is apprehended " and holding such a provision as permissive and not mandatory. Constitutionality of atatnte. — In a case in Missouri decided later than those above cited it is held that 108 PowEK AND Jurisdiction of Grand Juet. §§ 92, 93 § 92i. That arrest or custody is illegal is immaterial. — The fact tliat previous to the finding of an indictment the accused was illegally arrested, does not affect the validity of the indictment and is no ground for quashing it^^ So in a case in New York it was decided that it was no ground for quashing an indictment that before it was found, and after the issuing to the officer by a police justice of a warrant for his arrest, by an agreement between the officer and some person in Canada, the prisoner was forcibly brought from Canada to the line of that State, and there delivered to such officer, in arrest, under the warrant.^^ The court here said : " The objection to the arrest has no application, to the in- dictment. For aught that appears inf the papers, that could and would have been found whether the defendant was within the jurisdiction or not. There is no reason shown for quashing the indictment." ** § 93'. As to time of finding indictment — Generally. — As to the time when a person may be presented by indictment, it has been declared that a presentation by indictment must be made during a session or term of the court, since there can be no grand jury at any other time.^* And an indictment found by a grand a statute which provides that a per- Nobton, J., citing People v. Rowe, 4 Bon may be indicted for bigamy in a Park. Cr. (N. Y.) 253; Dou'a Case, county other than that in which the 18 Pa. St. 37; State v. Brewster, 7 offense was committed is in violation Vt. 118; United States v. Lawrence, of the Constitution of that State. 13 Blatchf. 295. See also State v. State V. Smiley, 98 Mo. 605, 12 S. W. Chyo Chiagk, 92 Mo. 395. 247. 32. People v. Rowe, 4 Park. Cr. 31. State v. Brooks, 92 Mo. 542, (N. Y.) 253. 571, wherein the court said: "Con- 33. Per Cunton, J. ceding (without deciding), that, 34. State v. Corbit, 42 Tex. 88, per previous to the finding of the indict- MooBE, J. It was, however, held in ment, the forms of law had not been this case that an information could pursued in arresting the defendant, be presented during vacation and and that such arrest was illegal, it that it was no valid objection to an affords no ground for quashing the information which was otherwise indictment, and it has been so ruled regular that it was not presented to in the following cases, and we have the court at a time when it was in not been able to find a contrary rul- session, ing by any court of last resort." Per 109 § 94 Power aitb Jusisdiction of Grand Jury. jury at a term of court held at a time unauthorized by law is a nullity, and so are the proceedings thereon. Such an indictment should be quashed, and after conviction thereon judgment should be arrested on motion.*^ A grand jury cannot, however, dissolve itself and a grand jury which is not impanelled for any particular time prescribed by law and is not discharged by the court in which it is acting, still exists as an original body, with power to perform its duties.'* The grand jury, when properly organized, meets and adjourns upon its own motion, without reference to the temporary adjourn- ment of the court, and it may lawfully proceed in the perform- ance of its duties whether the court is actually in session or not. This right to remain in session would not, of course, extend beyond the final adjournment of the court for the term, but within such limits it would be governed by its own wishes, subject to the control that the court at all times has over it*'' Sto where a grand jury is selected to serve for one year, commencing at term next after first day in January, and when impanelled it is a legally constituted body, the fact that the last term of the year extends beyond the first day of January is held not to terminate the powers of the grand jury, and action taken by it after such time but before the adjournment of the term is valid.** And where a grand jury has been dismissed before the final adjournment of the court it may, if necessary, be resummoned to attend again at the same term.*® § 94. Where grand jury for one term holds over — De facto grand jury. — Where the grand jury summoned and impanelled for one term of court holds over into the next term, and at such second term is recognized by the court as a lawful grand jury, it 35. Davis v. State, 46 Ala. 80. 37. Nealon v. People, 39 111. App. 36. In re Gannon, 69 Cal. 547. See 483. also People v. Leonard, 106 Cal. 302. 38. State v. Winebrenner, 67 In State v. Bennett, 45 La. Ann. 54, Iowa, 230, 25 N. W. 146. it is held that the grand jury is 39. Long v. State, 46 Ind. 582; drawn to serve until discharged by State v. Reid, 20 Iowa, 413. the court and not for any particular week. 110 POWEK AND JUKISDICTION OF GrAND JuEY. § 94 is a grand jury dte facto, and as against collateral proceedings (as in a case of writs of habeas corpus) the indictments found by it at the second term are valid and give the court jurisdiction to issue writs of arrest and commitments.*'* 40. Dunn v. Noyes, 87 Wis. 340, 58 N. W. 386, 41 Am. St. E. 45, 27 L. E. A. 776. The court said: "As we understand the law, the court be- low had no right in this collateral proceeding to inquire into the legal- ity of that grand jury and decide it to have been an illegal body without authority to find the indictments, nor has this court the right to so in- quire and decide. We are precluded from inquiring and determining whether the body of men that acted as a grand jury in finding the indict- ments was a grand jury de jure, by the barrier the law sets up to pro- tect the acts of that body in the in- terest of the public and public justice as a grand jury de facto. The de facto doctrine, which was introduced into the law as a matter of policy and necessity to protect the interest of the public where those interests were involved in the ofiBcial acts of persons exercising the duties of an officer without being a lawful ofiicer, has its most salutary application to the acts of a grand jury and of other official instruments of the courts wliieh constitute judicial proceedings. The courts are supposed to select and determine the qualifications of their subordinate official instrviments nec- essary to the administration of jus- tice. Their acts cannot be questioned without seriously affecting the pro- ceedings of the courts and the con- clusiveness of their judgments. The grand jury in question was sum- moned, selected, impanelled, and sworn for the September term of the court, and held its session and did business during that term. There is no question but that it was a legal grand jury throughout the September term. On the last day of that term this same body adjourned with the court, to the first day of the October term and continued its unfinished business. It is contended that this body became functus officio as a grand jury on and after the last day of the September term. It was recognized by the court as a lawful grand jury, and the court received the indictments found by it, and finally discharged' it from further service and ordered the payment of its fees. The legal grand jury of the September term simply held over its term. There cannot be a more appro- priate application of the de facto doctrine than to such a body as a. grand jury de facto while thus hold- ing over and doing business in the October term of the court." The court, after considering at length eases on this subject, said in con- clusion : " It would put an end to judicial proceedings if the legal title and qualifications of all judicial offi- cers could be contested in collateral proceedings at the instance of ag- grieved parties. This is a very im- portant qiiestion, and a new one in this court. We have cited all the cases at hand, and from the high character of the courts they ought to 111 § 95 POWEK AND JUEISDICTIOIT OF GeAJ^D JuEY, § 95. Power of grand jury to find indictment during vacation, — As has been said in a preceding section, it is essential to the validity of an indictment that it be found during a term or session of the court.*^ It may, therefore, be stated generally that an indictment cannot ordinarily be found during vacation. But though a judge may have no power to convene the grand jury during vacation, yet it is decided that this objection, though it may have been properly raised by challenging the array or by pleading it in abatement, does not aflFord a cause for arresting the judgment.*^ The power, however, to draw a grand jury at such a time may exist by virtue of a statute, and in such a case an indictment found by the grajad jury will be valid. So under a statute a code providing that " whenever the session of any court of record in this State shall be prolonged beyond the week or period for which juries were drawn at the close of the preceding term, as by law provided, or the judge anticipates that the same is about to be prolonged, or from any other cause such court has convened, or is about to convene, and there have been no juries drawn for the same, it shall and may be lawful for such judge to draw juries, so many as may be necessary for such court, and cause them to be summoned accordingly, in the manner prescribed for drawing juries at the close of the regular terms of such courts respectively," it has been decided that the power conferred upon the judge is one to be exercised by him either in term or vacation, and that when he discovers the emergency exists, no matter for what reason, he can diaw the juries and cause them to be summoned, and that if the grand jury be organized pursuant to this law it is a legal jury. It would, therefore, in such a case, be no objection be considered not only satisfactory, lateral procedure is concerned, be- but sufficient, especially when based cause found by a grand jury acting upon such cogent and conclusive under color of lawful authority and a reasons. We hold, therefore, that the good and sufficient grand jury de indictments found against the de- facto." Per Obton, J. fendants are not void but good and 41. See § 93 herein, valid indictments, so far as this col- 42. Miller v. State, 69 Ind. 284. 112 Power and Jueisdiction of Gband Juet. § 96 to an indictment that it was found by the grand jury during vacation.*^ § 96. Power to find indictment at an adjovirned term Where an adjourned term is a continuance of the regular term, it is competent for a grand jury, if impanelled, to inquire into offenses.** The mere adjournment of the court will not of itself operate to discharge the grand jury, arid therefore a grand jury summoned for a regular term of court has power to find indict- ments at an adjourned term, unless discharged in the meantime. The order of adjournment does not have the effect of discharging them or putting an end to their powers.*' So in a case in Indiana it was decided that an indictment would not be quashed because found at an adjourned term of the Circuit Court.** And in a case in Nebraska, where it appeared that the regular term of a court, fixed by law to be holden on the 13th of September, was adjourned in vacation by the written order of the judge, until the 13'th of December following, at which time the grand jury, summoned for the regular term, were returned and impanelled, an indictment found and trial and conviction had, it was held there was no error.*'' Aad where authority to hold an adjourned term of the court when the business requires it, to 43. Holman v. State, 79 Ga. 155, the Circuit Court of any county or 4 S. E. 8. when it shall become necessary or 44. Sharp v. State, 2 Iowa, 455; proper for said court to adjourn for State V. Peterson, 61 Minn. 73, 63 N. any cause, the business pending W. 171, 28 L. R. A. 324, holding that therein shall not be finished, it shall the district court has the power, be lawful for such court to adjourn under the statute, to discharge the until some other certain time to be grand jury impanelled at a regular specified in the adjourning order, of general term of the district court, ad- which public notice shall be given in journ the term to a future day, and some manner -to be specified by said order a new venire of grand jurors to court; and at such time such court be drawn and summoned for such ad- shall meet and continue in session so journed term. long as the business shall require, 45. State v. Pate, 67 Mo. 488. and such adjourned session shall be 46. tJlmer v. State, 14 Ind. 52, de- deemed a part of the regular term of eided under act of 1885 providing such court." " That if at the close of any term of 47. Smith v. State, 4 Neb. 277. 113 § 97 POWEE AND JUEISDICTION OF GeAND JuKT. dose tlie dockets, is given, it lias been decided that the words " to close the dockets " are not to be regarded as limiting the busi- ness done or to prevent other business going upon the dockets. The adjourned term under such a statute is merely a continuation of the regular term, and the court when in session has the same full power and jurisdiction which it would have at the regular term. It is^ therefore, held in such a case to be no ground for quashing an indictment that it was found at an adjourned term.** § 97. Power to find indictment at special term ^Where a judge has authority to call a special term of court, and there is no limitation upon the power conferred, his jurisdiction andi authority is generally as full and plenary as at a regular term, and an indictment found by a grand jury at such special term will, in the absence of some other objection thereto, be valid and a judgment and conviction theireunder will not be irregular or illegal.** So in New York, under a code provision that " The governor may, when, in his opinion, the public interest so requires, appoint one or more extraordinary general or special terms of the Supreme Court, or terms of a Circuit Court, or Court of Oyer and Terminer," it was decided that where an extraordinary term of the Court of Oyer and Terminer was so called there was ample authority for drawing a grand jury under the statute which provided that a grand jury may be drawn "For the Court of Oyer and Terminer of the county of Kings, upon the order of a judge of the Supreme Court elected in the second judicial dis- trict." ^^ And under a statute providing that the judge of any 48. Sims V. State, 51 Ga. 495. Compare State v. Brown, 127 N. C. 49. Alabama.— Bales v. State, 63 562, 37 S. E. 330, holding that a Ala. 30. quashal of an indictment returned by California. — People v. Carabin, a grand Jury at an extra term of the 14 Cal. 438. Superior Court was proper where the Illinois. — Gardner v. People, 4 statute providing for an extra term III. 83. made no provision for a, grand jury. Iowa. — Sharp v. State, 2 Iowa, SO. People v. McKane, 80 Hun (N. 454. y.), 322, decided under Code Crim. Mississippi. — Young v. State, 2 Proc., § 226. How. 865. 114 Power and Jurisdiction of Grand Jury. § 98 Circuit Court may at any time hold a special term for trial of persons charged with crime and confined in jail, by making out a written order to that effect and transmitting it to the clerk, who shall enter the same upon the record of the court, it was held that this embraced not only such cases as have been passed upon by a grand jury, but also where the defendant has been charged before, a magistrate, and, consequently the court has the power of directing a grand jury to be summoned to such special terra.^^ The validity of an indictment found at a special term of the Circuit Court will not be affected by the fact that, had the case been tried at such special term, it could not have been concluded before the regular term of another Circuit Court in the same district^2 § 98. Word " trial " in act providing for special term con- strued. — The word " trial " in an act providing for the holding of special terms of court " for the trial of criminals and for that purpose alone," ^® is to be construed in its general and enlarged. sense and signifies all that is to be done in a. cause, and includes as well the finding of the indictment as those proceedings after the issue has been determined.®'' 51. Mary v. State, 5 Mo. 79. " It is true that the language used 52. Hamilton v. State, 62 Ark. would bear a different construction, 643. The court said: " The validity by giving to the word 'trial' the of the proceedings at such special more narrow and restricted meaning term cannot be affected by the con- in which it is sometimes used to ex- tention that, if something had oc- press the investigation and decision curred that did not occur, the special of facts only. This is not, however, term would have interfered with the the more natural and obvious sense regular term. Enough for us to know in which it is used in this instance, on that point is that the special term In its more general and enlarged did not interfere with any other term sense, the word is used to signify all of the court. The motion to quash that is to be done in a cause, from the indictment on this ground was its inception to its termination, or properly overruled." Per Riddick, J. until final judgment is pronounced. 53. See Iowa Sessions Acts 1858, In this sense, the word includes, as chaps. 134, 259. ''ffill the finding of the indictment 54. State v. Wash, 7 Iowa, 347. against a criminal, as the proceedings Judge Stockton said in this case: of the court had after the issue hae 115 § 99 POWEE AND JUEISDICTION OF GeAND JuBY. § 99. Power to find. indictment at term other than that fol- lowing commitment. — At common law it is said that the grand jury had no authority to continue a case which had been submitted to them for investigation by another grand jury.®^ This is, however, a matter regulated to a great extent by statute, and in many States statutes have been passed providing that an indict- ment must be found at the next term of court after the accused is committed or bound over, unless "good cause be shown," or unless the case falls within certain specified exceptions.** But where the prisoner moved the court before the grand jury was impanelled to discharge him from imprisonment on the ground that two terms had elapsed since he had been held to answer, without any indictment having been found against liim it was held that, as the question was not raised by plea or otherwise after the indictment was found, it was not properly brought up for review by writ of error. The proper remedy was held to be by habeas corpus, but it was decided that the time for that had also passed, the prisoner being detained in custody, not by virtue of the original commitment, or the order overruling the motion, but the final judgment in the case.®^ Where there is no statute requiring an indictment at the next term of court, it has been decided that the fact that a regular term has intervened since the commitment of the accused and no indictment found against him does not entitle him to his discharge been determined, and a verdict of the 62 Neb. 626, 87 N. W. 336 ; Leisen- jury rendered. If we confine its berg v. State, 60 Neb. 628, 84 N. W. meaning to the limits sought to be 6; Ex parte Two Calf, 11 Neb. 221, fixed for it by the counsel for de- 9 N. W. 44. fendants then the business of the dis- Nevada. — Ex parte Job, 17 Nev. trict court, at the special term, would 184, 30 Pac. 699; State v. Lambert, have been limited to the decision of 9 Nev. 321. issues in fact, in criminal cases, and Oliio. — State v. Lott, 5 Ohio S. & it would have had as little power to C. P. Dec. 600. pronounce judgment after verdict, as Texas. — Bennett v. State, 27 Tex. to summon a grand jury for the find- 701. ing of indictments." Virginia. — Waller v. Common- 55. State v. Graham, 136 Ala. 134, wealth, 84 Va. '492; 5 S. E. 364. 33 So. 826. 57. Glover v. Commonwealth, 86 56. Nebraska. — Cemy v. State, Va. 382, 10 S. E. 420. 116 Power and Jurisdiction of Grand Jury. § 99 unless he can show, in addition, that the charge against him was fully investigated by the grand jury.^® So it has been decided that the failure of the grand jury to find an indictmeoit does not entitle an accused person to discharge from custody where the record fails to show that the grand jury heard evidence, or acted upon the accusation against him. And the law will not presume in such a case that evidence was heard and that the grand jury- ignored the bill. " Although it may be a legal presumption that a court was held at the time fixed by law, and a grand jury was regularly impanelled, still it will not be presumed that they acted upon a particular case." ^* And in a case in Alabama it is said: " It is well settled with us, that when one is bound over to the Circuit or City Court, to answer an indictment, his case pends through the term of the court to which he is bound, unless sooner discharged. If the court should fail before the adjournment of its term to take any action in the case, the mittimus by which the defendant is held would become exhausted — functus officio' — leaving nothing upon which defendant could longer he detained. But, if the court, no indictment having been found, should enter an order of continuance of the ease for further investigation by. a grand jury, a discontinuance would be intercepted, the life of the mittimus preserved, and defendant properly held thereunder." *** Where, however, it appears that the court has adjourned with- out taking any action whatever in the case, the fact that an order of continuance is shown to have been entered upon the docket kept by the grand jury, does not prevent the discontinuance of the prosecution.®^ 58. Ex parte Jeflferson, 62 Miss. 33 So. 826. The court said: "While 223. our statutes have enlarged the scope 59. People v. Hessing, 28 111. 410, of the powers and duties of the grand per Walkbe, J. jury, they have not conferred upon 60. Young V. State, 131 Ala. 51, them the authority of continuing 31 So. 373, per Haralson, J., citing cases so as to prevent a discontinii- Eogers v. State, 79 Ala. 59; Ex parte ance of the prosecution. Such an Stearnes, 104 Ala. 97; Fuller v. order to have that effect must be State, 122 Ala. 32. made by the court." Per Tyson, J., 61. State V. Graham, 136 Ala. 134, citing Rogers v. State, 79 Ala. 59, 61. 117 § 100 POWEB ANI> JUBISDICTIOW OF GeaITD JtTEY. § lOO. Same subject — Under particular statutes. — Where a statute provides that " when a person has been held to answer for a public offense, if an indictment be not found against him at the next term of the court at which he is held' to answer, the court shall order the prosecution to be dismissed, unless good cause to the contrary be shown," the case in which a dismissal is not to follow the non-presentment of an indictment against the accused is exceptional, and he has a right to depart " unless good cause to the contrary be shown." " This general provision of the statute, that the prisoner is not to be held in- definitely, is designed' to secure to him a speedy trial, and this right is absolute, except some good cause be shown which may be supposed to take the case out of the operation of the general rule. What is ' good cause ' may be difficult to define with precision, since it must, in a great measure, be determined by reference to the pajtieular oireumstances appearing in each case. There should, undoubtedly, be some fact or circumstance disclosed to the court, upon which its authority, in this respect, somewhat discretional, could be brought into exercise. Its discretion is not to be arbi- trary, but should proceed upon such knowledge or information as would enable it to determine for itself whether or not public justice requires the further detention of the prisoner, notwith- standing the delay upon the part of the prosecution." *^ And where a statute provides that an accused! person shall be dis- charged from custody upon the refusal of the grand jury at the next term to indict, unless the court be of the opinion that the charge be submitted to another grand jury, and so direct, the failure of the first grand jury to indict is to be treated as a direct refusal to indict, and a subsequent grand jury cannot indict unless the charge is submitted to them by the direction of the court. It has, however, been decided that in such a case, if an indictment is subsequently found by another grand jury without the charge having been submitted to them by the direc- tion of the court, the defendant waives the right to have it dis- missed upon that ground, if he pleads to it without making a motion to dismiss.** 62. Ex parte Bull, 42 Cal. 196, per 63. Sutton v. Commonwealth, 97 Wallace, J. Ky- 308, 30 S. W. 661. 118 POWEE AND JuRISDICTIOlir OF GrAWD JuET. §§ 101-103 § 101. Indictment found pending habeas corpus proceedings. — The fact that an indictment was found against a person during the pendency of habeas corpus proceedings for his discharge is not a ground for quashing an indictment or for arrest of judgment after conviction.®* § 102i. Constitutional provision as to right to be heard con- strued. — A constitutional provision that "In all criminal prose- cutions, the accused shall have a right to be heard by himself and by counsel, to demand the nature and cause of the accusation, and to be confronted by the vyitnesses against him and' to have rjompulsory process to obtain witnesses in his favor," is held not to apply to an inquiry before a grand jury or to render it essential to the validity of an indictment that the accused should be present at such inquiry, or that notice should be given him for the purpose.*" § 103. Indictment must be founded upon evidence. — It is essential to the legal creation or existence of an indictment that it be founded upon evidence heard by the grand jury.®® So it has been said that : " It is the duty of the court, in the control of its proceedings, to see to it that no person shall be subjected to the expense, vexation, and contumely of a trial for a criminal offense, imless the charge has been investigated and a reasonable 64. Clark v. Common., 123 Pa. the defendant was charged, and pro- St. 555, 16 Atl. 795, 23 W. N. C. ceedings there cannot be disturbed or 317. The court said in this ease: affected by the pendency of a writ of " Upon this record it is urged that habeas corpus allowed on his petition it was the duty of the court below to in the Court of Criminal Pleas. We quash the indictment, and having re- cannot convict the court below of er- fused to do that, to arrest judgment ror for refusing to quash the indict- on the verdict. No decision of this ment, or to arrest judgment on the or any court has been cited, to sus- verdict." Per Mr. Justice McCOL- tain this view of the law, and the lum. counsel who advocate it confess that 65. State v. Wolcott, 21 Conn. their research has failed to discover 272. one." . . . "In our case, the 66. State v. Grady, 12 Mo. App. Court of Oyer and Terminer had ju- 361, 364. riadiction of the crime with which 119 § 103 Power aud Jurisdiction of Grand Jury. foundation shown for an indictment or information. It is due also to the government to require, before the trial of an accused person, a fair preliminary investigation of the charges against him." *^ And it has also beem decided that an indictment will be quashed where the testimony before the grand jury was illegal, as of the accused against himself, or of a wife against her hus- band.** But where witnesses have been duly sworn and sent to a grand jury, and an indictment found and presented, it is not necessary that they should be recalled and re-examined, to warrant the grand jury in finding another indictment against the same person and before the former one has been noUed.** The court said in this ease : " The finding of the first indictment could not ex- haust its powers concerning the matter inquired into. All the proceedings of a grand jury may be regarded as in fieri until its final adjournment. And, hence, the grand jury in this case had the power upon the same eividence to find another indictment, with the same or different counts, if in its judgment, the administra- tion of justice required it. It will not infrequently happen that, for some defect in the indictment presented, or for the want of counts that should have been inserted to meet the possible aspects of the testimony when the accused comes to be tried upon the in- dictment, it is prudent to present a new indictment, adapted to such contingencies, leaving the prosecutor to nolle the first one, as was done in this ease. And, in such case to require the wit- nesses to be again subpoenaed, sworn and sent to the grand jury for re-examination, would be a requirement of no value whatever to the accused, and unsupported by any reason." '"' 67. United States v. Farrington, 296. See Royce v. Territory, 5 Okla. 5 Fed. 361, 364, per Wallace, J. 61, 47 Pac. 1083. See, also, Sparrenberger v. State, 53 6&. Whiting v. State, 48 Ohio St. Ala. 481. 220, 27 N. E. 96. 68. State v. Froiseth, 16 Minn. 70. Per Minshall, J. 120 CHAPTER V. Finding and Return of Gband Jury. Section 104. Power of grand jury to find specially or conditionally; general rule. 105. Same subject; exact grade of crime not for grand jury. 106. Finding of indictment not prevented by pendency of another. 107. Same subject; as affected by statutes. 108. Same subject; where nolle prosequi entered on first indictment, demurrer sustained or judgment arrested. 109. Same subject; where first indictment fatally defective. 110. Same subject; where second indictment quashed. 111. Same subject; in case of change of venue. 112. Same subject; what plea alleging pendency of another indict- ment should state. 113. Indictment against several may be found true as to one. 114. Different offenses in same indictment. 115. Different offenses in different indictments. 116. Same subject; rules illustrated. 117. Effect of action by grand jury; right to reconsider. 118. Same subject; qualification of rule. 119. Power of court to resubmit bill to grand jury. 120. Resubmission of charge where no indictment found; limitation on power. 121. Same subject; statutory provisions may control. 122. Where order of resubmission uncertain. 123. Finding of grand jury cannot be varied by extrinsic evidence; general rule. 124. Same subject; as to evidence on which indictment found. 125. Same subject continued. 126. Same subject concluded. § 104. Power of grand jury to find specially or conditionally — General rule — The grand jury cannot return a finding regard- less of tL.6 bill which is submitted to them, but should be controlled thereby. So it is said by an early authority in this connection that "It seems to be generally agreed, that a grand jury must either find 121 § 105 Finding and Return of Grand Jury. billa vera or ignoramus, for the whole; and if they take upon themselves to find specially or conditionally, or to be true for part and not for the rest, the whole is void, and the party cannot be tried upon it but must be indicted anew." * Therefore a grand jury cannot find a bill true as to part of a count and ignore the rest of the coumt.^ So in a case in South Carolina it is decided that where the grand jury, on a count for riot and assault in the indictment, find an indictment for riot, there is only a partial finding of the entire count and it is void.* And where a bill is presented to a grand jury charging an assault with intent to com- mit murder in the first degree, they cannot negative the felonious intent and find a true bill as to the assault and battery.* But where there are several counts in a bill and each count contains a distinct charge, the grand jury may find one count true and ignore the others." § 105. Same subject — Exact grade of crime not for grand jury. — ^The general rule as to the want of power on the part of the gi'and jury to find conditionally or specially extends to those cases where a criminal act consists of different degrees. In such a case there is no power on the part of the grand jury to determine the exact grade of crime and return a finding to that effect but 'they must find either a true bill or not a true bill, in accordance with the bill submitted to them. So it is said in a case in Tennessee: " The rule seems to be well established that the grand jury cannot find one part of the same charge to be true and another part false, but must either maintain or reject the whole. It is not the 1. 2 Hawkins P. C. 300, tit. In- grand jury cannot find part of an en- dictment, § 2, quoted in State v. tire count true, and another part Creighton, 1 Nott. & McC. (S. C.) falae, as in some instances a petit 256. jury may, but must either maintain 2. State V. Ewing, 127 N. C. 555, or reject the entire count." 37 S. E. 332. 5. Sta,te v. Ewing, 127 N. C. 555, ,3. State V. Creighton, 1 Nott. & 37 S. E. 332, citing Wharton's Cr. McC. (S. C.) 256. PI. & Prac. (9th ed.), § 374; State v. 4. State V. Wilhite, 11 Humph. Thomas (S. C, 1906), 55 S. E. 893; (Tenn.)602. Judge McKinney said : State v. Wilhite, 11 Humph. (Tenn.) " All the authorities concurs that the 602. 122 EniTDiifG AifD Eettjen of Geand Juky. § 106 province of the grand, jury to ascertain, or determine 'the exact grade of the criminal act (in crimes that admit of degrees) of which the accused is charged in the indictment. This remains for the petit jury, charged with his trial, under the control and in- structions of the court." ® So where an indictment charged murder it was decided that the grand jury had no power to return it for murder in the second degree/ or for manslaughter.^ § 106. Finding of indictment not prevented by pendency of another. — ^Pendency of a former indictment does not bar a second one for same offense,^ and as a general rule the fact ithat another 6. State V. Cowan, 1 Head (Tenn.), 280. Per McKinhet, J., citing 1 Chitty's Cr. Law, 2; 1 Russ on Cr., 312; 1 Arch. Cr. Pr. (by Waterman), 98 to 104, note 5. 7. State V. Ewing, 127 N. C. 555, 37 S. E. 332. Judge Montgomery said in this case: "The petit jury is the tribunal upon which is de- Tolved by the statute the duty of fix- ing the degree of guilt, whether mur- der in the first or murder in the sec- ond degree, upon the evidence of both the State and the prisoner. The distinction between murder in the first and murder in the second de- gree, under the act of 1893, is not for the grand jury to point out and determine, but is a matter for the ac- tion of the petit jury after hearing all the evidence and receiving the in- struction of the court. The law de- clares that the form of the indict- ment is immaterial as between the two crimes, and that the petit jury shall be charged with the duty of declaring the grade of the crime, as between murder in the first and mur- der in the second degree, and not for the grand jury. And this appears to me to be necessarily so, for, if the solicitor should conform to the wishes of the grand jury, as ex- pressed in their finding, and send in a bill for murder in the second de- gree, the bill would be in the exact language of the one upon which the grand jury undertook to act. I am, therefore, of the opinion that the grand jury transcended its power in finding the bill ' a true bill for mur- der in the second degree,' in that it undertook to prescribe a verdict for the petit jury, and that his Honor was right in sustaining the de- murrer." 8. State V. Cowan, 1 Head (Tenn.), 280; State v. Wilhite, 11 Humph. (Tenn.) 602, citing 2 Chit- ty's Cr. L. 492 (Riley's Ed.). 9. Georgia. — Pride v. State, 125 Ga. 748, 54 S. E. 688; Irwin v. State, 117 Ga. 706, 45 S. E. 48. Kentucky. — Monroe v. Berry, 29 Ky. Law R. 602. 94 S. W. 38, decided under Cr. Code Proc, § 116. Iionisiaixa. — State v. Stewart, 47 La. Ann. 410, 16 So. 945. Massa^ihiisetts. — Commonwealth V. Berry, 5 Gray (Mass.), 93. Missouri. — State v. Eaton, 75 Mo. 586, overruling State v. Webb, 74 Mo. 123 § 106 Finding and Return of Gkand Juby. indietment had preyiously been found is not a good ground for a plea in abatement or motion to seit aside the subsequent indict- ment though, the same offense may be charged in both/** nor is 333; State v. Smith, 71 Mo. 45, and cited and followed in State v. God- dard, 162 Mo. 198, 62 S. W. 697. Ohio. — O'Meara v. State, 17 Ohio St. 515. Texas. — Bonner v. State, 29 Tex. App. 223, 15 S. W. 821. Wliere a new trial has been granted another indictment may be found. State v. Lee, 114 N. C. 844, 19 S. E. 375; State v. Friedrich, 4 Wash. 204, 29 Pac. 1055. Nolle prosequi not neciessary Tfhere netir trial granted. — Where a person who is convicted of a crime for which he has been indicted, and he makes a motion for a new trial, which is granted, a new indictment may be found against him without a nolle prosequi being entered as to the first. Pride v. State, 125 Ga. 748, 54 S. E. 688. 10. Alabama. — Bell v. State, 115 Ala. 25, 22 So. 526. Arkansas. — ^Hudspeth v. State, 50 Ark. 534, 9 S. W. 1, decided under Mansf. Dig., § 2130; see Nash. v. State, 73 Ark. 399, 84 S. W. 497. Colorado. — Mason v. People, 2 Colo. 373. Connecticut. — State v. Keena, 64 Conn. 212, 29 Atl. 470. Florida. — Smith v. State, 42 Fla. 236, 27 So. 868; Eldridge v. State, 27 Fla. 162, 9 So. 448. Georgia. — ^Irwin v. State, 117 Ga. 706, 45 S. E. 48; Doyal v. State, 70 Ga. 134. Illinois. — Gannon v. State, 127 111. 507, 21 N. E. 525. Indiana. — Dutton v. State, 5 Ind. 533. Kansas. — State v. Curtis, 29 Kan. 384. Iionisiana. — State v. Stewart, 47 La. Ann. 410, 16 So. 945. iBIasBaclinaetts. — Commonwealth V. Cody, 165 Mass. 133, 42 N. E. 575; Commonwealth v. Drew, 3 Cush. 279. Nebraska. — Bartley v. State, 53 Neb. 310. New Tork. — People v. Fisher, 14 Wend. 9, 28 Am. Dec. 501. North Carolina. — State v. Hast- ings, 86 N. C. 596, approving State V. Dixon, 78 N. C. 558. Ohio.— O'Meara v. State, 17 Ohio St. 515. Sonth Dakota. — State v. Secu- rity Bank, 2 S. D. 538, 1 N. W. 337. In O'Meara v. State, 17 Ohio St. 517, wherein this question was raised, the court said : " It is in- sisted, in the first place, that the in- dietment under which the defendant was convicted is a nullity, because of the pendency of a former indictment for the same offense, at the time it was found. We know of no such law. The last indictment is as valid as the first. Two indictments for the same offense are often pending at the same time. The State can only pro- ceed upon one of them, but may elect upon which it will proceed. Of course, the right of election implies that both are good and lawful in- dictments." Per Welch, J. The plea of lis pendens does not hold as in civil cases. If justice 124 FINDI^^G AND Retukn OF Geand Juet. § 107 such a plea a good ground for a motion in arrest of judgment.^' So it was said by Chief Justice Shaw in an early ease in "Massa- chusetts that " It appears to us to be a settled rule of law, that the pendency of one indictment is no good plea in abatement to another indictment for the same cause. Whenever either of them — and it is immaterial which — ^is tried and a judgment rendered on it, such judgment will afford a good plea in bar to the other, either of autrefois convict or autrefois acquit." ^^ And this is held to be true though the accused may have already been arraigned and pleaded to the first indictment. ^^ The fact, therefore, that an indictment is missing and undisposed of does not prevent a conviction upon a second indictment, it being declared that if both indictments were in court, the defendant could be tried upon either.^* So in the absence of any statute requiring the quashal of one of two indictments found for the same offense, such quashal is not a right to which the accused is entitled but may be exercised by the court in its discretion.^* But where two indictments have been found for the same offense the accused cannot be tried on both but the state must elect upon which it will prosecute the defendant.^® §; 107. Same subject — ^As affected by statutes. — Tnis matter requires it, the court, in its disere- Doyal v. State, 70 Ga. 134. Per tion, will quash one of two pending TTat . t., J. indictments. Nevertheless, a man 11. Commonwealth v. Murphy, 11 may be held on two or more indict- Cush. (Mass.) 472; Commonwealth ments without that fact being of it- v. Clemmer, 190 Pa. St. 202, 42 Atl. self a bar to proceeding under one of 675 ; Bonner v. State, 29 Tex. App. the two. State v. Michel, 111 La. 223, 15 S. W. 821. 434, 35 So. 629. 12. Commonwealth v. Drew, 3 That tkere is no sucli plea to Cush. (Mass.) 279, 282. an indictment as the pendency of a 13. Bell v. State, 115 Ala. 25, 22 former indictment in the same case. So. 526; People v. Fisher, 14 Wend, or as autre fois arraign, we are well (N. Y.) 9, 28 Am. Dec. 501. satisfied; indeed this was expressly 14. Eosenberger v. Commonwealth, so ruled in the case of the King v. 118 Pa. St. 77, 11 Atl. 782. Swain & Jeffreys, Foster's Crown 15. State v. Michel, 111 La. 434, Law, 104, 105, 106; citing 10 St. Tri. 35 La. 629. 36; Cro. Cas. 147; 3 Bur. 1468. 16. Stuart v. Commonwealth, 28 ^Gratt. (Va.) 950. 125 § 107 Finding and Retukn of Grand Jury. is also subject to statutory provision in some cases to the effect that when two indictments for the same offense are pending against a defendant, the first found shall be deemed suspended, and shall be quashed. Under such a statute it hasi been declared that the second indictment operates to set aside the first and it becomes the only legal indictment ^^ But what seems tx> be the true doctrine is asserted in a case in !N"ew York in which it is said that statutes declaring in terms that the first indictment shall be deemed to be superseded by the second, are intended simply to prescribe the rule of the case, and not that the first indictment shall become waste paper and nugatory without the action of the court. The second indictment does not ipso facto annul the first.^^ And a similar doc- trine is asserted in other cases. ^* And where a person has been 17. Hudspeth v. State, 50 Ark. 534, 9 S. W. 1; Mansf. Ark. Dig., § 2130; State v. Hall, 50 Ark. 28, 6 S. W. 20; State v. Goddard, 162 Mo. 198, 62 S. W. 697; Mo. Rev. St., § 2522. ITnder a, statnte providing -tliat tbe one first f onnd sball be quashed it has been decided that a motion is not the proper procedure, but that the former should be pleaded to the second. State v. Barkman, 7 Ark. 387. Wlien indictments not xrithin application of statnte. — When the two indictments are so diverse as to preclude the same evidence from sustaining both, and when each in- dictment sets out an offense differ- ing in all its elements from that in the other, though both relate to one transaction, they do not come within the application of a, statute requir- ing that where there are two indict- ments for the same offense, although charged as different offenses, the in- dictment first found shall be quashed. State V. Hall, 50 Ark. 28, 6 S. W. 20, citing 1 Bishop Cr. Law, § 1051. 18. People V. Monroe Oyer and Terminer, 20 Wend. (N. Y.) 108, per Nelson, J. 19. State V. Melvin, 166 Mo. 565, 66 S. W. 534. An order of conrt is necessary in order to qnasb the first In- dictment. — "The statute does not say that the first indictment shall, on the finding of the second, become void, so that no trial or conviction thereupon can afterwards be had by confession or otherwise. Some action by the court, on motion, in behalf of the accused, or otherwise, to put that indictment out of the way, was evi- dently intended, and an order of the court was necessary to quash it." People V. Barry, 4 Park. Cr. (N. Y.) 657, per Bontjey, J. An order of conrt disposing of a former indictment is not ab- solutely essential, and a failure to make such an order will not be re- garded as having prejudiced the de- 126 FiNDiiirG AND Retukct OF Geand Juet. § 108 tried and convicted on an indiotmeoot it is decided 'that such indict- ment will not be quashed on the ground that during the pendency of the trial a second indictment for the same offense was found by the grand jury.^° § 108. Same subject — ^Where nolle prosequi entered on first indictment, demurrer sustained, or judgment arrested. — A special plea in abatement, alleging the pendency of another in- dictment against the accused for the same offense, is not a good plea where it appears that a nolle prosequi has been entered upon the first indictment.^^ So in a case in Kentucky, where the ac- cused pleaded the dismission of a former indictment for the same offense it was held that the dismission of the first indictment by the prosecuting attorney, with the presumed consent of the court, even after the jury was sworn to try the case, was no bar to the last indictment, and the court declared that, there having been no trial, the accused was not in .the constitutional sense either acquitted fendant's substantial rights, or as af- fecting his trial and conviction under the subsequent indictment. Blyew V. Commonwealth, 91 Ky. 200, 15 S. W. 356. The court may vacate an order declaring that the first indictment is superseded by a second one where it appears that the latter was void, 06 initio, and never had any legal exist- ence. People V. Mosies, 73 App. Div. (N. Y.) 5, 70 N. Y. Supp. 65. 20. People v. Monroe Oyer and Terminer, 20 Wend. (N. Y.) 108. 21. Jones v. State, 115 Ga. 814, 42 S. E. 271; Laseelles v. State, 90 Ga. 347, 372, 16 S. E. 945, 35 Am. St. Hep. 216, holding that where the court has allowed the solicitor-gen- eral to enter a nolle prosequi before putting the accused on trial, the lat- ter, when arraigned upon a bill of in- dictment subsequently found and re- turned by the grand jury for the same offense cannot, by plea in abatement or motion to quash, draw in question the rightful disposition of the former bill by not. pros. Zachary v. State, 7 Baxt. (Tenn.) 1, holding it no error to overrule a motion to quash the second indictment. Nol. pros, against consent of defendant. — A plea that a former indictment against the defendant for the same offense, and in which there were no fatal defects, was nol. pressed by the court against the con- sent of the defendant, is properly overruled. Bird v. State, 53 Ga. 602. Fending tbe decision of tbe court in the case of a demurrer to an indictment, a second indictment may be found by the grand jury upon the same evidence. People v. Bissert, 71 App. Div. (N. Y.) 118, 75 N. Y. Supp. 630, afSrmed 172 N. Y. 643, 65 N. E. 1120. 127 § 108 Finding and Retuen of Gband Juet. or put in jeopardy.^^ And wiiere judgment is arrested it has been decided that a new indictment may be given out on the same warrant.** In many states this matter is subject to statutory provisions.^* 22. Wilaon v. Commonwealth, 3 Bush. fKy.) 105. 23. State v. Thomas, 8 Eich. L. (S. C.) 295. 24. Cunningham v. State, 117 Ala. 59, 23 So. 693, holding that where a demurrer to an indictment is sus- tained and the defendant declines to consent to the amendment of the in- dictment, the court has authority, under the statute (Code of 1896, § 4918; Code of 1886, § 4390), to "or- der another indictment to be pre- ferred at the same or a subsequent term, and after directing that a new indictment be preferred at the next term, the court has the power to change the order on the succeeding day of the term, so as to direct that the second indictment be preferred at the then present term, the defendant being present at the time of making the change. Terrill v. Superior Court of Santa Clara County (Col., 1899), 60 Pac. 38, 516, construing § 1008 of the Penal Code as amended in 1880, and which provided as follows : " If the demurrer is allowed the judgment is final upon the indictment or in- formation demurred to, and is a bar to another prosecution for the same oflFense, unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment or infor- mation, directs the case to be sub- mitted to another grand jury, or di- rects a new information to be filed; provided that, after such order of re- submission, the defendant may be ex- amined before a magistrate, and dis- charged or committed by him, as in other cases." State v. Evans, 111 Iowa, 80, 82 N. W. 429, holding where an indictment for committing a liquor nuisance was set aside as de- fective and judgment was entered that the cause be resubmitted to the grand jury, that the petit jury im- paneled be discharged and that de- fendant recover costs, that such judg- ment was not a final judgment from which an appeal could be taken under Code § 5448, and that it did not dis- charge defendant or exonerate his bail under Code § 5331. Common- wealth V. Swanger, 108 Ky. 579, 57 S. W. 10, decided under Criminal Code of Practice, i 170, providing that where a demurrer to an indict- ment is sustained because of the fail- ure of the indictment to charge facts essential to a good indictment, "the case may be submitted to another grand jury and an order to that ef- fect may be made by the court on the record." This provision was held to confer upon the court the power to exercise its discretion in such a case and it was decided that the discre- tion was not abused by the refusal to so submit an indictment for per- jury where the alleged false testi- mony was not necessarily material in determining the defendant's guilt or innocence of the charge on which he was tried when the testimony was given. Compare Commonwealth v. 128 Finding and Rettjen of Gkand Jukt. §§ 109-111 § 10'9. Same subject — Where first indictment fatally defect- ive. — 'Where there are fatal defects in an indictment or in the organization of the grand jury by which it was found and a new one is preferred, it is not necessary that the first indietment shall be quashed before the second is found.^^ § 110. Same subject — Where second indictment quashed. — In the application of the rule that under such a statulte the finding of a second indictment does not operate ipso facto as a quashal of the first but merely suspends it until some positive action, has been taken which quashes the one first found the quashal of the second indictment only does not operate as a quashal of the first but in such a case the one first found is revived, the obstacle which caused its suspension having been removed.^' § 111. Same subject — .In case of change of venue. — While the accused is entitled to be indicted by the gi-and jury of the county where the offense is committed, yet it has been declared that this is not an absolute and indefeasible right which cannot be waived and that it isi waived where upon his motion a change of venue is granted. In such a case, where the indictment upon which the change was granted is quashed he cannot object to a new indict- ment found in the county to which the cause was removed that it was not found in the county in which the offense was committed.^^ And it has been decided that a statute which provides that where Shelby, 18 Ky. Law Kep. 781, 38 S. C. 797, 14 S. E. 63; State v. Flowers, W. 490. 109 N. C. 841, 843, 13 S. E. 718. 25. Perkins v. State, 66 Ala. 457, 2S. State v. Melvin, 166 Mo. 565, holding that the better and more 66 S. W. 534. usual practice is to the contrary. 27. Parker v. Commonwealth, 12 See Nordlinger v. State, 24 App. D. Bush. (Ky.) 191, decided under a ^ 406. statutory provision that where an in- Wtere a 11x11 is of doubtful dictment was quashed a, new indict- validity it is a proper practice to ment might be found by the grand send a second bill at the same term jury of the county to which the cause and not -to postpone trial thereon, as was removed. Ky. Gen. St., Art. 4, a matter of course, till another term. ch. 12, § 7 ; Jennings v. Common- State V. Lee, 114 N. C. 844, 19 S. E. wealth, 13 Ky. Law Rep. 79, 16 S. W. 375, citing State v. Skidmore, 109 N. 348. 129 §§ 112, 113 Finding and Retuen of Geand Juet. a change of venue has been granted and the indictment is subse- quently quashed a new indictment may be found by the grand jury of the county to which the cause is removed is not violative of " the ancient mode of trial by jury," nor does it operate to deprive a citizen of his life, liberty or property in a mode un- known to "the law of the land."^* And a change of venue and the transfer of ithe first indictment to another county does not prevent the grand jury of the county in which the offense was committed from finding a second indictment against the accused.^^ :§' 112. Same subject — What plea alleging pendency of an- other indictment should state. — Under a statute providing that the indictment firsit found shall be deeimed suspended by the second indictment and shall be quashed, it has beetn decided that a plea alleging the pendency of another indictment should state that the indictment pleaded to was the one first found; and should state that the offense charged in the two indiotmenlts is not only the same offense, but is the same matter, the same tranaaxjtion, the una et eadenu res acta.^^ § 113. Indictment against several may be found true as to one. — lAn indiotment against several persons may be foimd true as against one or more and rejected as to the others and this is 28. Parker v. Commonwealth, 12 price of the prosecuting attorney, it Bush. (Ky.) 191. is sufficient to say that if the origi- Compare ex parte Slater, 72 Mo. nal cause for change of venue still 102. exists he may renew his application." 29. State v. Billings, 140 Mo. 193, Per Gantt, J. 41 S. W. 778, wherein the court said: 30. Austin v. State, 12 Mo. 393, "While the circuit court of Butler decided under art. 4, § 4, pp. 867-8, county had. jurisdiction of the cause Dig. 1845, providing, " If there be at which had been transferred to it, that any time pending against the same fact in nowise prevented the grand defendant two indictments for the jury of Bollinger county from find- same offense, or two indictments for ing a new indictment. As to the com- the same matter, although charged plaint that by permitting a second as different offenses, the indictment indictment to be found in the county first found shall be deemed suspended where the crime was committed a by such second indictment, and shall party may be deprived of the right be quashed." to a change of venue at the mere ca- 130 FlNDIKTO AND ReTDEN OF GrAITD JuRY. §§ 114, 115 declared to be true though there be but a single count.*^ So where an indictment against the accused and two others was endorsed " not found " as to the two and " a true bill " as to the accused it was held (that thisi afforded no ground of complaint and that a motion in arrest of judgment, based on such finding, was prop- erly denied.*^ § 114. Different offenses in same indictment. — DifFeremt of- fenses, where they are of the same general character, may, in the absence of a statute to the contrary, be included in the same indictmeait.^* So in a case in New York it is decided that offenses although differing from each other and varying in the punish- ments authorized to be inflicted for their perpetration, m)ay be included in the same indictment, and the accused tried upon the several charges at the siame time, provided that the offenses be of the same character, and differ only in degree, as for instance the forging of an instrumeait, and the uttering and publishing lit, knowing it to be false.** Where, however, it is provided by stat- ute that an indictment shall charge but one offense, there must be a compliance therewith and different offenses cannot be joined in the same indictment^® § 115. Different offenses in different indictments Two in- dictments may be found against a person for offenses which differ in their elements though both relate to or arise out of ithe same act or transaction.** But a state cannot split up a crime and 31. state V. Wilhite, 11 Humph. v. Michel, 111 La. 434, 35 So. 629, (Tenn.) 602. case of indictment for attempt to 32. State v. Aucoin, 50 La. Ann. commit a crime and for having com- 49, 23 So. 104. mitted the crime. The court said in 33. Ball V. State, 48 Ark. 94, 2 S. this case: "The charges were not W. 462. absolutely similar. The defendant 34. People v. Rynders, 12 Wend, was without right to insist upon (N. Y.) 425. his demurrer to quash the indictment 35. Ball V. State, 48 Ark. 94, 2 S. on this ground." Per Bbeaux, J. W. 462. People v. Rynders, 12 Wend. (N. Y.) 36. State v. Hall, 50 Ark. 28, 6 S. 425, holding that an indictment for W. 20, case of indictment for carry- forging a, check on a bank in the ing a weapon and for murder; State name of A. B. is not superseded by 131 § 116 Finding and Retuen- of Geand Jtiet. ' prosecute it in parts. If a person is indicted and prosecuted for any part of a single crime a further prosecution is thereby barred upon a whole or a part of the same crime.*''' § 116. Same subject — Rules illustrated. — In the case of a per- son indicted for the larceny of several articles, if a verdict is reindered as to a part only of the offense or' items charged and is silent as to the residue, it is held that the conclusion arises that the jury intended to acquit as to such residue.** So in a case in Ken- tucky it has been declared that " where a party in the same trans- action, with one and the same intent has committed at the same time and place, two or more acts in respect to the property of the same individual, for either or all of which together an indictment for larceny might be maintained, at die election of the prosecuting power, but in respect to which a second indictment could not be maintained without reproducing the same evidence of intent and other material facts which had been in issue upon the former trial, an acquittal in the one case is a sufficient bar to a prosecution in the other."** And in such a case, where a new trial is granted, the first indictment being good, he cannot be subsequently indicted for the larceny of those articles in respect to which he was ao- an indictment subsequently found, 37. Jackson v. State, 14 Ind. 327. charging the same party with per- .• A T> 1 ■ I, J Th.e decisive test is whether the sonating A. B., and in such assumed . , , . . f „ „ same testimony will support both character receiving a sum of money, •' *^r lii, 1, ii, _ u 11 J i charges. State v. Johnson, 12 Ala. although the money be alleged *" ° > ■■=" have been received from the same in- dividual alleged in the first indict- 38. Foster v. State, 88 Ala. 182, ment to have been defrauded by 7 gg, jgs. means of the check; and the amount thereof corresponds with the sum re- 39. Fisher v. Commonwealth, 1 ceived by means of the check. But Bush. (Ky.) 211, 89 Am. Dec. 620, see Peake v. Van Home, 8 Barb. (N. so holding where, by the same act, Y.) 158, wherein it is said: "We a person took a horse, wagon and regard it as the duty of the court to harness, and two indictments were discountenance the practice of find- found, one for stealing the horse and ing two or more indictments for dif- the other for stealing the wagon and ferent degrees of the same offense, or harness, and the accused was ac- for different offenses founded on the quitted on the trial for stealing the same matter." Per Paiqe, J. horse. 133 Finding and Ketuen of Geand Juet. § 117 quitted and can only be tried on the second indictment for the larceny of those articles for which he was found guilty.*" In the application of the general rule, it is decided that the uttering as true of a forged mortgage and a forged note, which the mortgage purports to secure, at one time and to the same party, is a single act and constitutes only one offense.*^ So where the sale of three lottery tickets was of such a character as to constitute but one selling, as where they were sold to one person, at one time, and were all attached together by the paper on which they were printed, it was decided that the ofPense could not be split up so as to support three indictments, but that only one indictment could be sup- ported.*^ And where a person who was in possession of two counterfeit plates was indicted for the possession of one of them and acquitted, it was decided that there should be no trial of an indictment charging possession of the other.*^ § 117. Effect of action by grand jury — Right to reconsider. — When a grand jury has acted upon a bill submitted to them and it has been returned by them into court either a true bill or not a true bill, such action is final so far as their powers are concerned in respect to that particular bill, and it is a general rule that in such a case the action so taken can not be affected by any subse- quent reconsideration of the matter by the grand jury of their own volition and without authority from the court to that effect. So in a case in North Carolina it is decided that the grand jury, having once acted upon a bill and returned it publicly into court, not a true bill, and a record having been made of its finding, it is a final disposition of that bill.** And in a ease in Alabama it 40. State v. Clark, 32 Ark. 231, ment for uttering the mortgage was holding that such acquittal was a a bar to a subsequent conviction on perpetual bar, of which he could not another indictment for uttering the be deprived by the action of the court note. in quashing the first indictment on 42. Fontaine v. State, 6 Baxt. which he was tried, after the second (Tenn.) 514. was found. 43- United States v. Miner, 26 41. State V. Moore, 86 Minn. 422, Fed. Cas. No. 15,780, 11 Blatchf. oil. 90 N. W. 787, 61 L. E. A. 819, hold- 44. State v. Brown, 81 N. C. 568, ing that a, conviction on an indict- wherein it is declared that Mr. 133 § 118 Finding and Eetxten of Gband Jdet. has been determined ithat the functions and powers of the grand jury as to a bill of indictment are ended when the presentment ia made and the indictment or true bill ia received by the court, And it was decided in this case that when a defendant is put on trial under an indictment regularly preferred against him, evi- dence that the grand jury which preferred' the indictment, and which is still in session, have reconsidered their action in pre- ferring the bill and have ordered it to be withdrawn, is imma- terial and palpa:bly irrelevant.*'' So in Pennsylvania it has been decided that when a defendant has been once discharged on a return of " ignoramus," a new bill sent up without a fresh hear- ing and without the leave of court should be promptly quashed in the absence of affirmative proof that the course taken was required to meet some grave emergency or provide for some public need.*® i _ _. § 118- Seime subject — Qualification of rule — The rule stated in the preceding section ia not to be extended so as to preclude a grand jury from reconsidering a matter which has been submitted to them in those oases where no return has been made by them. The fact that a bill has been considered and a vote taken should not of itself be regarded as exhausting their powers and as pre- Blackstone holds that where a, bill upon, an adequate reason for so doing has been returned not a true bill, or should accompany the request, not found, the party is discharged Judge Cbisweix said in this latter without further answer, but that a case, in referring to the grand jury: fresh bill may afterwards be pre- " The fact that they sit and deliber- ferred to a subsequent grand jury. ate privately renders it impossible 4 Bl. Com. .305. for the court to control, direct and 45. Fields v. State, 121 Ala. 16, review their proceedings, as they may 25 So. 726. those which are had in their presence, 46. Rowland v. Commonwealth, and the fact that from time imme- 82 Pa. St. 405, referred to as stating morial they have so sat and deliber- a recognized principle in Common- ated, may be taken as conclusive of wealth V. Wbitaker, 25 Pa. Co. Ct. the fact that it is not and never was 42, wherein it is held that when the intended that the court should so di- court is asked to set aside the find- rect, control and review their pro- ings of a grand jury, or ignore its ac- ceedings." tion, and submit to another grand See, also. Commonwealth v. jury matters once regularly passed Priestly, 24 Pa. Co. Ct. 543. 134 Finding and Return of Grand Juey. § 118 vee'ting a subsequent consideration of the same matter. It is the duty of the grand jury to thoroughly investigate and consider every charge submitted to them and tihe fact that they may, at some time in the course of their proceedings, have reached a con- clusion should not be regarded as preventing them from again considering the same matter and arriving at a different conclu- sion, -where the result first reached has not assumed the character of a return of the bill into open court. So the fact that ithe grand jury at some time during their determination voted not to find a bill against the accused, and after having so voted, reconsidered their determination and voted to find a bill, and this vras done, so far as appeared, without any new evidence being presented to the grand jury subsequent to their vote not to find a bill, was held to furnish no ground for quashing the indictment,*'^ And a similar conclusion was reached in a case in New York.** And in a case in Oregon it is decided that, in discharge of the obliga^ tions which grand jurors assume by their oaths, that they will make a true presentment or indictment of all crimes committed or triable within their county that shall come to their knowledge, they not only have the right, but it is their duty, to return a new indictment against a defendant, if, in their opinion, the former indictment, which is still pending and undisposed of, is defective or insuflBcient, nnless Si>me proceeding has been had which amounts to a bar to further prosecution.*® But in an early ease in Massachusetts it was decided that where a trial had been com- menced, and it was then discovered that the indictment was not 47. United States v. Simmons, 46 same session it may reconsider its Fed. 65. Judge Benedict said: own actions, and the law contem- "It was the right of the grand jury plates that the jury shall give each to reconsider their vote without tak- case a full and complete investiga- ing additional testimony, certainly tion before it finally comes to a con- before any report by the jury to the elusion." Per Smith, J. court, and while the matter was still 49. State v. Reinhart, 26 Oreg. before them." 466, 38 Pac. 822, wherein it is de- 48. People v. Sheriff, 11 N. Y. Civ. clared that this is the better and Proc. R. 172. It was said in this more usual practice and citing Per- <;ase: "The law gives the jury full kins v. State, 66 Ala. 457; Stuart v. control of every change until it is Commonwealth, 28 Grat. (Va.) 950. finally discharged, and during the 135 § 119 FlNDIIfG AWD K.ETTJEN OF GeAND JtJEY. signed by the foreman of the grand jury, and the indictment was withdrawn from the jury, they could not find another bill against the same persons, for the same offense, without the authority of the court^" § 11&. Power of court to resubmit bill to grand jury. — The power of the court to resubmit an indictment which is de- fective or imperfect, to the same grand jury, is recognized. "The grand jury are under the control of the court And it is the province and duty of the court to see that the finding is proper in point of law; and if not, the court may recommit an improper or imperfect finding, and may, if necessary, exercise the power of compelling a proper discharge of duty, on the part of the grand jury."^^ So it is said in a recent case in Iowa that it is com- petent for the trial court to order the resubmission of a criminal charge to the grand jury where the indictment is clearly de- fective.^^ In the exercise of this power the court may recommit an indictment to a grand jury for amendment,'® and the power of the court to quash an indictment in certain cases and to order that the charge be resubmitted to the same or to another grand jury has also been sanctioned. So where it appeared that there was such an irregularity in the selection and composition of the grand jury, who returned lie indictment, as would cause a re- versal of the judgment after verdict, if rendered against the accused, it was held proper to stop the trial, quash the indictment, and order the case to be resubmitted for consideration to another grand jury.®* 50. Commonwealth v. Sargent, show the fact. State v. Davidson, 2 Thach. Cr. Cas. (Mass.) 116. Cold. (Tenn.) 184. 51. State V. Cowan, 1 Head. 52. State v. Hanlin (Iowa, 1907), (Tenn.) 280. Per McKdtnet, J., 110 N. W. 162, citing State v. Kim- citing Arch. Cr. Pr. 98 to 104, note 5. ble, 104 Iowa, 19, 73 N. W. 348. An iiLdictment may be ^vith- S3. A motion to recommit an drawn, by leave of the court, and indictment for amendment need recommitted to the grand jury, by not mention the proposed amend- whom it has been found, and re- ment. Lawless v. State, 4 Lea turned into court, but when returned (Tenn.), 173. into court again the record should 54. Weston v. State, 63 Ala. 155. 136 Flnding and Retuen of Grand Juet. § 120 % 120. Resubmission of charge where no indictment found — Limitation on power. — Although it is a generally accepted rule that, unless it is provided to the contrary by statute, a charge which has heem ignored by one grand jury, or in respect to which it has returned "not a true bill," may be again submitted to and considered by another grand jury,''^ yet it is said that the Judge Manning said: "It would have been wrong for a circuit judge, seeing that defect, to have suffered the trial to proceed to a judgment, which would have here been certainly vacated, Leao neminem cogit ad vana aeu inutilia. Nor can it be held, in such a case, that the proceedings have gone so far that defendant had been put in jeopardy, and should not, therefore, be subjected to trial again. A defendant is never in jeop- ardy, when the indictment against him is so invalid that' a judgment upon it would be annulled on appeal, no matter what may be the stage of the prosecution when, for that rea- son, It is quashed." 55. TTnited States. — United States V.Martin, 50 Fed. 918, wherein it is said : " The doctrine in this State, and the other American States, is that the ignoring of an indictment by one grand jury is no bar to a sub- sequent grand jury investigating the charge and finding an indictment for the same offense." Per Paul, J. Georgia. — Christmas v. State, 53 Ga. 81, holding that the finding of " no bill " by two successive grand juries, on a bill of indictment for a crime, does not entitle a person to judgment of acquittal or a discharge from the crime, and it was decided that the judge properly refused to al- low an order discharging the defend- ant " from the offense or crime therein contained." Missonri. — State v. Renfrow, 111 Mo. 585, 20 S. W. 304, wherein it was declared that "neither the mere finding, or refusal to find, an indict- ment by one grand jury will affect the power of another grand jury to indict." Per Gantt, J. Nevada. — Ex parte Job, 17 Nev. 184, 30 Pae. 699, holding that th& failure of three grand juries to find an indictment did not operate as a bar to further prosecution, and that a fourth grand jury might find an indictment for the same charge. Ifortli Carolina. — State v. Har- ris, 91 N. C. 656, holding that where a bill of indictment is ignored, a new bill, charging the defendant with the same offense, may be sent to the same grand jury, with the names of other witnesses endorsed thereon. The court said in this case: "There might be a variety of reasons why a new or fresh bill should be sent, as that the jury might have failed upon the first bill to examine the witnesses properly, and elicit all the facts; or, they might have misapprehended the character of the evidence, which they could understand and appreciate af- ter some explanation of it by the court in a proper ease; or, new evi- dence might be produced; and, in- deed, it is easy to conceive of a case 137 § 120 FnTDING AN^D ReTUEN OF GeAND JuRY. power which is vested in the court to order such a resubmissiou should be exercised with a considerable caution. So it is declared in this connection in a case in New York that " while the court has power to permit the charges to be again submitted to the grand jury such power should be sparingly and discriminatingly used. It is a practice that ought not to be encouraged, nor granted pro forma. The court should act judicially, and permit such resub- mission only when facts are presented which justify such action."** in which it might be of great mo- ment to society, and a due adminis- tration of public justice, that a new bill should be promptly sent. It may be said that if a second bill can be sent in such a case, so may a third and fourth, under like circumstances; and thus the accused might be greatly harrassed and oppressed. It is not to be presumed that the prose- cuting officer would needlessly multi- ply bills for the same offense, much less that he would so prostitute his office to gratify his own malice or that of others. He would be amen- able for such an offense, and, besides, the grand jury might refuse to act upon bills thus sent, and complain to the court; and upon proper appli- cation the court would promptly in- terpose a wholesome cheek." Per Mebbimon, J. " 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 dis- charged by proclamation, he is still liable to be indicted, though the sending up a second bill, after an ignoramus, is an extreme act of pre- rogative, subject to a revision of the court." Wharton Cr. PI. and Pr., § 446, quoted in United States v. Mar- tin, 50 Fed. 918. 56. People v. Neidhart, 35 Misc. R. (N. Y.) 191, 71 N. Y. Supp. 591, 15 N. Y. Cr. R. 475, holding that the court will not direct that a change be resubmitted merely on the affida- vit of the district attorney that he is of the opinion that the grand jury misunderstood the law, and that if the charge is again submitted an " in- dictment may be found." Judge FosTEB said as to this : " To permit th« district attorney, because he does not agree with the grand jury, and seemingly for no other reason, to con- tinue resubmitting complaints to other grand juries until one can be found to agree with him, is to place in his hands a power of persecution which I am unwilling to sanction, and which I am quite sure he does not desire. The verdict or decision of the grand jury is justly entitled to great weight and should not be lightly brushed aside or ignored." An adequate reason shonld be ■botm where it is sought to refer a matter to another grand jury in re- spect to which a former grand jury has refused to return an indictment. Conmionwealth v. Whitaker, 25 Pa. Co. Ct. R. 42. See Commonwealth v. Priestly, 24 Pa. Co. Ct. R. 543, 10 Pa. Dist. R. 217. 138 FrfTDiNG AUD Retiten OF Geajsd Jukt, §§ 121, 122 § 121. Same subject — Statutory provisions may control. — In some States the question as to again submitting a charge to the grand jury after it has once been passed upon by them is regulated by statute, permitting the court to again submit a chargei.®' And in a case in Arkansas it is decided that where one held for murder is indicted for murder in the second, degree upon evidence that warranted an indictment in the higher degree, the Circuit Court may, 'before trial, suspend proceedings under such indictment and commit accused to jail without bail to a,wait the action of the next grand jury.^^ § 122.. Where order of resubmission uncertain. — ^If an order of resubmission as primarily entered was uncertain, and it could have been certain, it will be presumed to have been so made by the subsequent direction of the court.^® 57. State v. Collis, 73 Iowa, 542, 35 K. W. 625; Iowa Code, § 4290, providing that " such dismissal of the charge does not prevent the same from being again submitted to the grand jury, as often as the court may direct; but without such direction it cannot again be submitted." Sutton V. Commonwealth, 97 Ky. 308, 30 S. W. 661; Ky. Crim. Code, § 116, pro- viding that: "The dismissal of the charge does not prevent it being again submitted to a grand jury, as often as the court may direct, but without such direction it cannot again be submitted." People v. Warren, 109 N. Y. 615, 15 N. E. 880, N. Y. Code of Cr. Proc, % 270, which is similar to above provisions. 58. Ex parte Johnson, 71 Ark. 47, 70 S. W. 467, decided imder sections of Code of Criminal Procedure found in Sand. & H. Dig., §§ 2060, 2061, 2249. The last of these sections per- mitted the court, after trial com- menced when it appeared from the facts proved that the defendant was guilty of a. higher crime than that charged in the indictment, to dis- charge the jury and suspend the pro- ceedings until the case could be sub- mitted to another grand jury, and it also provided that in the meantime the court might commit the defend- ant or admit him to bail, as the court deemed proper under the circum- stances. 59. Ex parte Job, 17 Nev. 184, 30 Pac. 699. The order in this ease re- cited that the court was of opinion that the objection upon which the de- murrer was allowed could be avoided in a new indictment, and that, there- fore, he directed the charge to be re- submitted "to the same or another grand jury." It was said by the court in this connection : " The statute ( § 1818, Comp. L.) makes it obligatory upon district courts upon the impan- eling of grand juries to charge them as to the nature, of their duties, and to draw their attention to any 139 §§ 123, 124 Finding and Return of Gkand Juey. § 123. Finding of grand jury cannot be varied by extrinsic evidence — General rule. — It may be stated asi a general rule that an indictment when properly presented and filed is a record which imports verity and cannot be varied, contradicted or impeached by parol or extrinsic evidence."" St> it has been decided that it is not competent to add to or explain an indictment by the contents of a paper which forms no part of it, and which is not provided for by law.*^ And one who is being tried for the offenses charged in an. indictment will not be permitted to show by extrinsic evidence that such offenses were not the ones which, the grand jury actually had in mind when they found the indiotmemt.^* § 124. Same subject — rAs to evidence on vi^hich indictment found. — The question as to the conclusiveness of the finding of the grand jury in respect to the evidence upon which the indictment is found is one upon which the courts are not fully in harmony. Stome of the cases, however, which are apparently in conflict will be found upon closer examination not to be at variance with each other and many cases which are sometimes referred to as asserting that the finding of the grand jury is conclusive and cannot be con- tradicted or impeached go merely to the method of procedure to establish the fact that the indictment was found upon no evidence or illegal evidence. In this connection it has been decided in a changes for public offenses re- 61. State v. Brownlee, 84 Iowa, turned to the court, or likely 473, 51 N. W. 25, holding that a writ- to come before them. It was, ing filed by the county attorney con- therefore, the duty of the court, in ceding a certain fact in connection charging the next grand jury, to have with the crime charged was not ad- directed their attention to the peti- missible for the purpose of a de- tioner's case. The record does not af- murrer to the indictment, firmatively show that this was done, 62. State v. Skinner, 34 Kan. 256, but since it was embraced within the 8 Pac. 420, holding that the defend- court's duties, we must, in the ab- ants could not show this either by senoe of a showing to the contrary, testimony of the county attorney or presume that the court gave the of any witness before the grand jury, charge required by law." Per Bel- See, also. State v. Schmidt, 34 Kan. KNAP, J. 399, 8 Pac. 867. 60. People v. Hujbut. 4 Den. (N. Y.) 133, 47 Am. Dec. 244. 140 Finding and Retttbn of Geand Jury. § 125 case in North Carolisa that there is a presumiption in favor of the legality of the finding of the jury, but that where the accused establishes the fact that the bill was found without evidence or upon illegal evidence, it may be quashed or the matter pleaded in abatement.®* And in a case in Oklahoma it is decided, where a defendant files a motion to set aside and quash an indictment on the grounds that it is found by a grand jury, without legal and competent evidence, but upon hearsay testimony, and makes ap- plication to the trial court to set a day for the taking of testimony as to the matters alleged in said motion and for the subpoena of witnesses therefor, in accordance with the statute, that it ia reversible error to summarily overrule said motion and to proceed with the indictment.®* And in a case in Alabama it is declared that objections on the ground that an indictment was found upon no evidence or without legal evidence are available by timely motion to quash, or to strike the paper from the file, which it is said the court should always grant, if satisfied by the evidence, beyond a reasonable doubt, that the grounds of the motion are true, and that there has been no lack of diligence in ascertaining the facts, and bringing them to the attention of the court."®^ And a similar doctrine is asserted in a case in Minnesota.®® In Georgia it has been decided in this connection that a motion to quash an indictment on such a ground should be denied where no evidence is offered to sustain the motion.®^ § 125. Same subject continued — In an early case in E'ew York, which is sometimes referred to as supporting the doctrine that the finding of the grand jury is conclusive, it is decided that a grand juror cannot be called to impeach the conduct of the jury as^ for example, to show that an indictment presented by them was found without testimony, or upon insufficient testimony.®* In this case, however, the court declared that while a timely motion 63. State v. Lanier, 90 N. C. 714. 66. State v. Froiseth, 16 Minn. 96. 64. Eoyce v. Territory, 5 Okla. 61, See § 103 herein. 47 Pac. 1083. 67. O'Shields v. State, 92 Ga. 472, 65. Sparrenberger v. State, 53 Ala. 17 S. E. 845. 481, 25 Am. Dec. 643. Per Bbickell, 68. People v. Hulbut, 4 Den. (N. C. J. Y.) 133, 47 Am. Dec. 244, holding 141 § 126 Finding and Return of Gkand Juet. to quash or set aside the indictment might possibly have been granted the proper course would have been by a motion to set aside the record. In this case, which is sometimes :refeirred to as sup- porting the doctrine that the finding of the grand jury cannot be contradicted or impeached, the court said : " The indictment, when presented in due form by the grand jury, and filed in court, is a record; and', like other records, imports absolute verity. It cannot be impeached unless it be done upon motion, by showing that it was not founded upon sufi&cient evidence, or that there was any fault or irregularity in the proceedings. It can neither be done by plea averring against the record, nor by evidence on the trial. ... So long as the record remains, no defect in the evidence upon which it was founded, nor any irregularity in the proceedings, however great, can furnish any answer to it. But when the endsi of justice require it, a record may be set aside on motion ; and when set aside, that is an end of it. If the defendant, instead of pleading and; going to trial on the indictmenH, had moved to quash or set it asdde, or to strike out the first four counts, it is possible that the motion would have been granted. But that is a question on which I do nob intend to express any opinion. On the trial neither the court nor the jury could have anything to do with the proceedings in the grand jury room. Their only office was to inquire whether the defendant was guilty of the offenses laid tx) his charge." ®® § 126. Same subject concluded. — In an early Connecticut case it was determined that it is the policy of the law, in the furtherance of justice, that the preliminary inquiry before a grand jury should be conducted in secret and that no evidence will be received, for the purpose of vitiating an indictment either from the grand jurors or from the witnesses before them, or from any other person required by law to be present, as to the evidence given where, on the trial of an indictment fered to show hy one of the grand for selling liquor without a license, jury that only one offense was sworn which charged five offenses, in separ- to before that body, that the evidence ate counts, the defendant, in order to was inadmissible, limit the proof to a single count, of- 69. Per Bronson, J. 142 Finding and Retuen of Grand Juky. § 126 on such inquiry.'"' And in New Jersey it is decided in an early case, that the defendant cannot show by a plea in abatement or otherwise, that the indictment was founded on illegal evidence or without evidence. ^^ It will be seen from an examination of the cases in this and the preceding sections,''^ that there is a conflict between the authorities as to the conclusiveness of the finding of the grand jury where it is sought to show that the indictment was founded upon no evidence or upon illegal evidence. The au- thorities seem to be about equally divided in their views. In determining this question, however, an important and controlling element is the nature of the right to an indictment and its object. This right was given in order to secure to the individual a fair and impartial investigation of the alleged offense by a grand jury. It was to secure a person against the disgrace of an indictment and the expense of a trial upon a charge which was without foundation, and it presupposed a fair investigjation of the charge against him, 70. state v. Fasset, 16 Conn. 458. 71. State V. Dayton, 23 N. J. L. 49, 53 Am. 270, wherein it is said : " To permit every defendant to question the competency and quali- fication of every witness before the grand jury would lead to the obstruc- tion of the administration, if not the defeat, of the ends of justice; and to make the right at all valuable the doors of the grand jury room must be thrown open, and the defendant permitted to scrutinize not only the evidence upon which he is to be tried but also the evidence upon which he was indicted." Per the Chief Jizstice. And a similar doctrine is asserted in other cases. Smith v. State, 61 Miss. 754; Turk v. Smith, 7 Ohio (Part 2), 240; State v. Boyd, 2 Hills' L. (S. C.) 288, 27 Am. Dec. 376n, wherein Judge Harpeb said : " I am of the opinion that the court will, in no instance, inquire into the charac- ter of the testimony which has influ- enced the grand jury in finding an in- dictment with a view to the quashing of the indictment." Tbat indictment founded en- tirely on incompetent evidence is not a ground for quashing it. State V. Woodrow, 58 W. Va. 527, 52 S. E. 545. See Mercer v. State, 40 Fla. 216, 24 So. 154, wherein the court said, in reference to an objection that a second indictment was found with- out the re-examination of any wit- nesses, or taking of any testimony except such as was heard on the find- ing of the first indictment, " the rule is that a, court, for the purpose of quashing an indictment, will never in- quire into the character of the evi- dence that influenced a grand jury in finding such indictment." Per Tat- LOB, C. J., citing State v. Boyd, 2 Hill's L. (S. C.) 288, 27 Am. Dec. 376n. 72. See §| 124, 125 herein. 143 126 Finding and Eetukn of Geand Juey. and that an indictment should only be found after the considera- tion of evidence sufficient to warrant it. Having in view these facts, it would seem that a defendant might. by timely motion to quash or by a plea in abatement, show that the indictment was founded on illegal evidence or was returned without any evidence to sustain it. By this latter is not meant a mere insufficiency of evidence where there was any legal evidence to sustain the finding, for it would seem that where it appears that there was legal evidence before the grand jury, any inquiry into its sufficiency should not be allowed.'^* 73. Sparrenberger v. State, 53 Ala. 481, 25 Am. Dec. 643, wherein Chief Justice Beickeu, said: "It is scarcely necessary to say that when it appears witnesses were examined by the grand jury, or the jury had before them legal documentary evi- dence, no inquiry into the sufficiency •of the evidence is indulged." See Stewart v. State, 24 Ind. 142; Commonwealth v. Taylor, 12 Pa. Co. a. 326. That one of the witnesses vas incompetent is not a sufBcient ground for setting aside an indict- ment. See State v. Tucker, 20 Iowa, 508; State v. Logan, 1 Nev. 509; Dockery v. State, 35 Tex. Cr. 487, 34 S. W. 281 ; United States v. Utah, 5 Utah, 608, 19 Pac. 145. 144 CHAPTER VI. Recokd of Indictment. Section 127. Record should identify indictment. 128. Record should show return into court; general rule. 129. Same subject; record entry of return not necessary. 130. Presumptions as to return. 131. Indictment need not appear on record in extenso. 132. Copying of indorsement not necessary. 133. Filing and indorsement of. 134. As to Jurisdiction of court. 135. As to organization and qualification of grand jury. 136. As to swearing of grand jury. 137. As to names of grand jurors. 138. As to offense charged. 139. Record need not show indictment on testimony duly sworn. 140. Of indictment against two or more persons. 141. Filing away of indictment; reinstatement of. 142. Omissions supplied by reference to other parts of record. 143. A m endment of record; nunc pro tunc entries. 144. Same subject continued. 145. Power of court to supply record; lost indictment. 146. Same subject; statutory provisions affecting. 147. Same subject; after arraignment or trial. 148. Where indictment found after substitution. § 12Y. Record should identify indictment. — Tlie record in a criminal prosecution upon indictment should identify it by some entry from the record of the lower court, describing it by the time of its filing and its number, or otherwise.^ The entry should be of such a character as to identify the indictment upon which the prisoner is tried as the one which was found and returned by the grand jury.^ But where it affirmatively appears that the in- 1. Springer v. State, 19 Ind. 180, are now marked 1, 2, 3, etc., or let- declaring that on the return of in- tered A, B, C, etc. Cruiser v. State, dictments the clerk should enter that 18 N. J. L. 206. the grand jury return into court the 2. Cornwell v. State, 53 Miss. 385; following bills of indictment, which Hogue v. State, 34 Miss. 616. 145 § 128 Ebcoed of Indictment. dictmeat, set out in tbe transcript, was returned, into court, and that the appellant appeared and pleaded to the indictment returned it isi inunateirial that the number on the indictment and the num- ber of the cause are different.* § 128. Record should show return into court — General rule. — ^After a grand jury is satisfied of the truth of an accusation and it is indorsed a true bill, it should then be publicly returned into court,* and it is essential that the record should show that it was 3. Mergentheim v. State, 107 Ind. 567, 8 N. E. 568. 4. 4 Black. Comm. 306. See, also, the following eases: United States. — United States v. Butler, Fed. Cas. No. 14,700. Alabama.— Mose v. State, 35 Ala. 421. Arkansas. — Holcomb y. State, 31 Ark. 427. Colorado. — Thomell v. People, 11 Colo. 305, 17 Pae. 904; Board of County Commissioners v. Graham, 4 Colo. 201. Florida. — Goodson v. State, 29 Fla. 511, 10 So. 738. Georgia. — Sampson v. State, 124 Ga. 776, 53 S. E. 332. IlUaois.— Yundt v. People, 65 111. 372; Gardner v. People, 20 111. 430; Rainey v. People, 3 Gilm. 71. Indiana. — Cooper v. State, 79 Ind. 206. Iionisiana. — State v. Mason, 32 La. Ann. 1018. Missonri. — State v. Vincent, 91 Mo. 662, 4 S. W. 430. North Carolina. — State v. Bor- deaux, 93 N. C. 560. In this connection it is said in an early case in Virginia : "The bill of indictment is sent or delivered to the grand jury, who, after hearing all the evidence adduced by the Common- wealth, decide whether it be a true bill or not. If they find it so, the foreman of the grand jury endorses on it, ' a true bill,' and signs his name as foreman, and then the bill is brought into court by the whole grand jury, and in open court it is publicly delivered to the clerk, who records the fact. It is necessary that it should be presented publicly by the grand jury; that is, the evi- dence required by law to prove that it is sanctioned by the accusing body, and until it is so presented by the grand jury, with the endorsement aforesaid, the party charged by it is not indicted, nor is he required, or found, to answer to any charge against him which is not so pre- sented." Commonwealth v. Cawood. 2 Va. Cas. 527, 541. Per Brocken- BBOUGH, J. Return of indictment; nncon^ stitntional law as to time of holding conrt. — ^An indictment re- turned at a time fixed for holding court by a law which has been de- clared to be unconstitutional is void, and there being no valid indictment which will support a judgment of conviction, it necessarily follows that a judgment of conviction on such an 146 Recoed of Indictmeint. § 128 BO returned.' So in a case in Florida it is decided tliat the only recognized manner in which, the findings of a grand jury can be indictment will not support an ap- peal. MoDaniel V. State (Ala., 1905), 39 So." 919, citing Walker v. State, 142 Ala. 7, 39 So. 242. 5. Arkansas. — Holcomb v. State, 31 Ark. 427; Green v. State, 19 Ark. 178. Colorado. — Thomell v. People, 11 Colo. 305, 17 Pac. 904. Florida. — Goodson v. State, 29 Fla. 511, 10 So. 738; Collina v. State, 13 Fla. 651. Georgia. — ^Bowen v. State, 81 Ga. 482, 8 S. E. 736. lUinois. — Yundt v. People, 65 111. 372; Sattler v. State, 59 111. 68 ; Kelly V. State, 39 III. 157 ; Gardner v. Peo- ple, 20 111. 430; Rainey v. People, 3 Gilm. 71. Indiana. — Waterman v. State, 116 Ind. 51, 18 N. E. 63; Jackson v. State, 21 Ind. 79; Springer v. State, 19 Ind. 180; Conner v. State, 18 Ind. 428. lonra. — State v. Glover, 3 Iowa, 849. Iionisiana. — State t. Pitts, 39 La. Ann. 914, 3 So. 118. Mississippi. — ^Pond v. State, 47 Miss. 39. Tennessee. — State v. Herron, 86 Tenn. 442, 7 S. W. 37; Bennett v. State, 8 Humph. 118; Henry v. State, 4 Humph. 270; Hite v. State, 9 Yerg. 198; State v. Willis, 3 Head. 157. Texas. — Walker v. State, 7 Tex. App. 52. Virginia. — Simmons v. Common- wealth, 89 Va. 156, 15 S. E. 386. "West Virginia. — State v. Heat- ton, 23 W. Va. 773 ; State v. Gilmore, 9 W. Va. 641. A judgment against u. defend- ant Trill be reversed where there is no evidence in the transcript, either by entry of record or by en- dorsement upon the indictment that the grand jury returned the indict- ment into court. Arkansas. — ^McKenzie v. State, 24 Ark. 636. Illinois. — Kelly v. People, 39 111. 157 ; Eainey v. People, 8 111. 71. lo-nra. — State v. Glovey, 3 Iowa, 249. MississippL — Jenkins v. State, 30 Miss. 408. Tennessee. — Brown v. State, 7 Humph. 155. Virginia. — Commonwealth v. Ca- wood, 2 Va. Cas. 527. The correctness of the finding of the conrt belo-w that an indict- ment was regularly presented will be presumed, and the fact that it was presented and filed after the adjourn- ment of the court cannot be estab- lished by afladavits. State v. Gibba, 39 Iowa, 318. An affidavit and information need not be filed in open court. Ste- fan! V. State, 124 Ind. 3, 24 N. E. 254. Fact of appointment of foreman need not be entered on minutes. Peo- ple V. Roberts, 6 Cal. 214. Failnre to record before last day of term, as provided by statute, not groimd for quashing an indict- ment which was presented and filed on such day and subsequently re- corded. Courtney v. State, 5 Ind. App. 356, 32 N. E. 335. 147 § 128 Recokd of Indictment, authoritatively presented is in open court, and tkat sucli present- ment should be affirmatively shown by a record entry in the min- utes of the court, or else by the file indorsement on the indictr ment itself by the clerk of the court, showing that it was presented by the grand jury and filed in open court. And it was; further held that the record entry in the minutes is the best and proper evidence of the fact.® And a motion in arrest of judgment will be sustained where the record fails to show that an indictment has been returned into court.^ Wliere statute forbids entry on record under certain conditions. Where it is provided by statute that the clerk shall make no entry on the minutes or records in reference to an indictment aigainst one who is not in actual custody, such indictment is not invalidated by a failure to enter on the record that it was filed on the day it was presented, or by other de- fects as to details. State v. Bell, 159 Mo. 479, 60 S. W. 1102. Entry of an order for tbe dis- charge of jnry before entering the title of the case against one in- dicted is not material and does not affect the validity of the indictment where it appears from the minutes of the court that the indictment was re- turned and presented in court prior to the discharge of the jury. State V. Starr, 52 La. Ann. 610, 26 So. 998. Two courts and grand juries in same ceonty. — In a late case in Texas it is decided that an objection that an indictment is not shown to have been returned into the proper court, where there are two district courts in a county, each entitled to a grand jury, because the distinguish- ing number of the court in which the indictment was presented is not shown, is not sustained where it ap- pears that the presiding judge of the court in which the indictment was presented was the one who presided in the court in which the case was tried. Outley v. State (Tex. Cr. App. 1907), 99 S. W. 95. Sufficiency of record of return in particular cases see: Alabama. — ^Pamell v. State, 129 Ala. 6, 29 So. 860. lUiniris.— Kelly v. People, 132 111. 363, 24 N. E. 56. Missouri. — State v. Sharpe, 119 Mo. App. 386, 95 S. W. 298; SUte T. Freeze, 30 Mo. App. 347. Nexr Jersey. — State v. Engeman (N. J. L.), 23 Atl. 676. North Carolina. — State v. Led- ford, 133 N. C. 714, 45 S. E. 944; State v. Starnes, 97 N. C. 423, 2 S. E. 447 ; State v. Guilford, 4 Jones L. 83. Tennessee. — State v. Herron, 86 Tenn. 442, 7 S. W. 37. 6. Goodson v. State, 29 Fla. 511, 10 So. 738. 7. Kelly v. State, 39 111. 157; Adams v. State, 11 Ind. 304. 148 Rbcokd of Indictment. § 129 § 129. Same subject — Record entry of return not necessary. — 'Althougli it is a general rule that it should appear from the record that an indictment was returned into court,* yet there is authority for the rule that a plea in abatement is properly over- ruled where it appears that the indictmeait was actually returned into court though no specific entry of this particular fact was made on the minutes at the time.® So it has been decided in a case in Alabama that when a written accusation is properly in- dorsed, and returned by the grand jury into court and filed, it becomes a valid indictment; and the obligation of the accused to answer it is not destroyed by the clerical omission of a recital npon the minutes, of the fact of the return.^" And in an early case in Iowa it is held that an indorsement upon an indictment itself is sufiicient record of the finding and filing of the same, and the only record which should be made until after the defendant is arrested.-'^ And there are numerous other cases which assert the doctrine that where it appears from the record that a grand jury properly organized for a certain term of court presented against the accused during such term an indictment properly signed and endorsed as required by statute, and such indictment is marked filed by the clerk in open court, it sufficiently appears 8. See § 128 herein. unnecessary where it is provided by 9. Chelsea v. State, 121 Ga. 340, statute that the filing of the indict- 49 S. E. 258, holding that the failure ment by the clerks shall " be evidence to make such entry on the minutes of the proper and legal return into was an irregularity which was cured court of such indictment. Cook v. by the testimony of the bailiff and State, 57 Miss. 654. the clerk; State v. Lord, 118 Mo. 1, A presentment becomes a part of 23 S. W. 764, holding that where an the record of the court by being re- indictment is signed by the prosecut- turned into court by the jury and ing attorney, foreman of the grand filed by the clerk, without any memo- jury, and is indorsed " a true bill " randum upon the minutes of the and " filed," there is a presumption court of these facts. State v. Mu- that it was returned into court in zingo, Meigs (Tenn.), 112. See the manner and means prescribed by Jeremy Imp. Co. v. Commonwealth law, though there is no record entry (Va. 1907), 56 S. E. 224. that the indictment was returned 10. Mose v. State, 35 Ala. 421. into open court. 11. Wrocklege v. State, 1 Iowa, As affected tjy statnte. — An en- 167. try of the return on the minutes is 149 § 129 ReCOBD of iNDICTMEmr. from the record that the indictment was properly returned into court And such a doctrine seems in reason to be sound and not in conflict with the general rule.i* And it has been decided that, 12. Alabama. — MeKee v. State. 82 Ala. 32, 2 So. 451. Florida.— Westcott v. State, 31 Fla. 458, 12 So. 846. Kansas. — State v. Crilly, 69 Kan. 802, 77 Pac. 701. Iionisiana. — State v. Mason, 32 La. Ann. 1018. MississippL — Cooper v. State, 59 Miss. 267. North Carolina. — State v. Wea- ver, 104 N. C. 758, 10 S. E. 486. Compare Commonwealth v. Ca- wood, 2 Va. Cas. 527, holding that the record must show affirmatively that indictment was found a true bill by the grand jury. This case was cited and approved as to indictments but distinguished in the case of a pre- sentment by the grand jury in Jer- emy Imp. Co. V. Commonwealth (Va. 1907), 56 S. E. 224, wherein it was held that the presentment of the grand jury being set forth in extenso in the order of the court, entered of record, and made a part thereof, this was all that was required in such a case. Sufficiency of shoxrins of re- turn on record. — Where the record show that the grand jurors were sworn, and having received their charge, retired to consider the same, and under a subsequent there is a recital in the record as follows: " On this day the grand jury return to the bar, and, through their fore- man, deliver the following indict- ment as a true bill, to wit," it suf- ficiently shows that the indictment was presented by the foreman in open court. State v. Vincent, 91 Mo. 662, 4 S. W. 430. And the following entry on the record showing the re- turn of an indictment has been held sufficient : " This day came the grand jury for the State, and filed in open court the following bill of indict- ment." State V. Herron, 86 Tenn. 442, 7 S. W. 37. And in a case in Indiana it is decided that "where the record recites that the grand jury came into " open court and returned the following indictment, "giving its niunber and setting it out, it suffi- ciently shows that it was returned into open court and suSiciently iden- tifies the indictment." Willey v. State, 46 Ind. 363. And where an indictment was indorsed " a true bill " and the indorsement was signed by the foreman of the grand jury and the indictment was duly marked "filed" by the clerk, with the date of the filing, it was held that these indorsements showed a substantial compliance with the sta- tute requiring that the record show that the indictment had been re- turned to the court by and in the presence of the grand jury, and was sufficient to prove its authenticity as a record. McKee v. State, 82 Ala. 32, 2 So. 451. In Williams v. State (Ind. 1907), 79 N. E. 1079, the ob- jection was raised that the indict- ment bore no evidence of having been filed in court and also that it had never been recorded in the records of the court. Judge Hadixt said in 150 ReCOED of iNDICTMEaSTT, § 129 though it is required by statute that an iudiotment shall be re- corded, yet it is ao ground for a motion to quash and in arrest that the record does not disclose that the indictment was recorded, it being declared that the failure to comply with such requirement does not injure a defendant who is tried on the indictment that was actually returned by the grand jury.^^ Teference to these objections and a, motion in arrest of judgment based thereon : " With respect to this mo- tion ... it has been held by this court that, when the record re- cites that the indictment, upon which the defendant was arraigned and tried, was returned into open court by a regularly organized and qualified grand jury, it is suflScient to show its due return. The ruling is based upon the principle that the failure of the clerk to indorse the fact of the return, or filing, or to re- cord the indictment, does not in any way injure the defendant, or furnish him any valid ground for reversal. Ransbottom v. State, 144 Ind. 250, 252, 43 N. E. 218; Padgett v. State, 103 Ind. 550, 3 N. E. 377; Heath v. State, 101 Ind. 512; Mathis v. State, 94 Ind. 562; Courtney v. State, 5 Ind. App. 356, 32 N. E. 335. In this case the record recites the perform- ance of all acts necessary to the im- paneling and qualifying of a legal grand jury. It then proceeds, ' Comes now the grand jury hereto- fore regularly impaneled and sworn, as by the statute provided, into open court, and said grand jury, now, through their foreman, return into open court the following indictments, signed by Charles P. Benedict, prose- cuting attorney, and indorsed by Thomas D. Amos, foreman, as true bills; said bills are examined in open court by the judge thereof, and filed by William E. Davis, clerk of said court, and are as follows, to wit: 35,771, State of Indiana v. George Williams, murder.' Then follows the indictment in full and then the in- dorsements, showing the number and title of the cause, as above. Then, 'Record, book 33, page 421. Indict- ment for murder. A true bill. Thomas D. Amos, foreman.' Names of the witnesses, and signed, ' Charles P. Benedict, Prosecuting Attorney.' This record, reciting the present- ment, return into open court, filing and recording of the indictment, aided by the presumptions that oper- ate in favor of the regularity of the proceedings, must he held sufiicient, especially when the defendant is un- able to show, or at least does not at- tempt to show, that he was in any way prejudiced thereby in his sub- stantial rights." The indorsement " filed in open court " does not show that it was returned into court by the grand jury, and is not sufficient. McKenzie v. State, 24 Ark. 636. 13. Ransbottom v. State, 144 Ind. 250, 43 N. E. 218; Heath v. State, 101 Ind. 512, construing R. S. 1894, § 1741 (R. S. 1881, § 1672), providing that "As soon as an in- dictment is presented and examined by the court, or information filed, the clerk shall indorse thereon the 151 § 130 Kecoed of Ini>ictment, § 130. Presumptions as to return. — It will be presumed that an indictment was preiseaited to the court by the foreman of the grand jury, and in their presence, although that fact is not indorsed on it, if the record of the court shows nothing to the contrary.^* And when the record states that the grand jury returned the bill in open court, it is not competent to disprove by evidence aliunde the recital in the record on a motion in arrest of judgment.'^ And where a bill was endorsed " A true bill " and signed by the foreman and there was an entry in the minutes that " thereupon the court ordered the finding of the bill to be recorded," it was decided that it would be presumed that the grand jury came into court in a body and presented the indictment in open court.'* date of such filing or presentation; and he shall then record such indict- ment or information, with its in- dorsements, in a record book to be kept for that purpose, and the clerk, before the last day of the term at which same are presented must com- pare the record with the original in- dictment or information and certify to the correctness thereof." 14. People V. Blackwell, 27 Cal. 65. It Trill be presumed where the record of the court shows nothing to the contrary that an indictment was presented to the court by the fore- man of the grand jury, and in their presence. People v. Lee, 2 Utah, 441. Judge Emeeson said in this case : " The court being one of gen- eral criminal jurisdiction, all intend- ments are in favor of the regularity of the proceedings." Fresamption as to return. — Where the record shows that the in- dictment was presented by the grand jury in open court, it will be in- ferred that it was done as provided by law, through their foreman. Laurent v. State, 1 Kan. 313. The court said: "The law requires that the indictment found by a grand jury shall be presented by their foreman, in their presence, to the court. It might well be inferred from the rec- ord that that body acted through their proper officer, the foreman. But it is unimportant, as it could make no difference to the accused whether it was handed in by the foreman or some other member of the body in their presence. The defect, if it be one, is technical, and cannot be re- garded by the court." Per Kma- MAN, J. Under a statute authorizing a. clerk to record only those indictments which have been found by the grand jury and returned into court there is a legal presumption, from the fact that an indictment has been recorded, that it was found by a grand jury and returned into court. Miller v. State, 40 Ark. 488. 15. State V. Bordeaux, 93 N. C. 1.60, citing Turner v. State, 9 Ga. 58. 16. State V. Mason, 32 La. Ann. 1018, affirming State v. Ohumacht, 10 La. Ann. 198. 152 Recoed of Indictment. |§§ 131-133 § 131. Indictment need not appear on record in extenso. — It is not necessary to the validity of an indictment presented by a grand jury tkat it should appear on the record book in extenso.^'' And this isi true though it may be required by law. In such a case an omission to spread an indictmeait upon the minutes is held to in no way enlarge or diminish the rights of an accused person, as it is said that the policy of the law in requiring a S'preading upon the minutes, is to provide against the consequences oi the loss, abstraction or destruction of the original.^* § 132. Copying of indorsement not necessary. — The indorse- ment " A' true bill " on an indictment need not be set out on the minutes, where it is regularly indorsed and presented in open court and filed. Where it is properly indorsed and. is so filed as to identify it with the minutes this is: in fact the recording of the indorsement on the bill.^* § 133'. Filing and indorsement of.— iWhere the statute does not require that an indictment shall be filed in open court, or that the act of marking it shall be done in open court, it is not essential that these acts shall be so done.^" And generally the omission of the 17. Commonweal th v. Tiernan, 4 affirmatively shows that an indict- (jrat. (Va.) 545. See, also, Hopkins ment was returned into court and T. Commonwealth, 50 Pa. St. 9; Por- that the requirements of the statute ter V. State, 17 Ind. 415, holding that were complied with beyond all ques- where the trial is upon the original tiou of doubt, a variance in spelling indictment it is not necessary that the foreman's name in copying the the record should show that it had indorsements 5g immaterial where the been recorded, compared with the names are strictly idem sonans. original, and certified by the judge. Jackson v. State, 74 Ala. 26. 18. Glasgow V. State, 9 Bart. 20. Willey v. State, 46 Ind. 363, (Tenn. ) 485. so holding under a statute requiring 19. State V. Bennett, 45 La. Ann. that an indictment must be " re- 54, 12 So. 306, cited and followed in turned into open court and filed by State V. Clay, 45 La. Ann. 269, 12 the clerk." So. 307. See, also. State v. Harwood, Statute directory wliicli re- 1 Wins. (N. C.) 1228; State v. Her- quires filing. — In an early case in ron, 86 Tenn. 442, 7 S. W. 37. New York a statute of this character Variance 'bet'ween indorse- was held to be directory. Dawson T. ment and copy. — Where the record People, 25 N. Y. 399. 153 § 133 Eecokd of Jjtdiotment. clerk to put the usual file mark on an indictment which has been pleaded to, and of which the record shows due presentation by a grand jury in open court, is not a ground for arrest of judgment.^' So in a recent case in Illinoia, in which this question was raised, the court said : " The indictment having been returned into open court by the grand jury in a body, which fact was shown by the record, it became a part of the records of the courtl at once, and the omission of the clerk to place his file mark thereon did not affect its legality or destroy its character." "■^ So in Alabama it has been decided that when an indictment has been returned into court by the grand jury, properly indorsed by the foreman, a Conrt no po^ver to prohiliit clerk from filing indictment. — Where it is provided by statute that when an indictment is found, it must be presented by the foreman to the court in the presence of the grand jury, and must be filed by the clerk, the court has no authority to prohibit the clerk from filing such indictment when so presented. State v. Quailes (Idaho, 1907), 89 Pac. 636, constru- ing Ida. Pen. St. 1887, § 7669. Where case is transferred. — In Texas it has been decided that where a case is transferred to the county court from the district court the in- dictment need not be filed in the former court. It was, however, de- clared that under the provisions of the code it would be better practice to so file it. Short v. State (Tex. Cr. App.), 29 8. W. 1073. See Tex. Code Cr. Proc, Art. 438. Statntes as to filing informa- tions construed. State v. Brown, 63 Kan. 262, 65 Pac. 213, construing Kan. Gen. St. 1897, ch. 102, § 84, and ch. 89, § 6; Trimble v. State, 61 Neb. 604, 85 N. W. 844, construing Neb. Cr. Code, §§ 579, 580. 21. Pittman v. State, 25 Fla, 648, 6 So. 437. See, also, Willingham V. State, 21 Fla. 761; Gallaher v. State, 17 Fla. 370; State v. Plum- mer, 55 Mo. App. 288; State t. Ho- gan, 31 Mo. 342. Sufficiency of indorsement. — It is not essential to the validity of an indictment that it should appear from the indorsement of filing made by the clerk that it was " presented to the court by the foreman in the presence of the grand jury." State v. Axt, 6 Iowa, 511. In Mississippi it has been de- cided that the " marking " the indict- ment filed, and signing the entries on it, by the clerk, are made by Code the exclusive " legal evidence of the finding and presentment of the in- dictment." Stanford v. State, 76 Miss. 257, 24 So. 536, decided under Code 1892, § 1346. 22. Kirkham v. People, 170 IlL 9, 12, 48 N. E. 465. Per Philups, J. A paper is filed when it is de- livered to the clerk and received by him, to be kept with the papers in the cause. Engleman v. State, 2 Ind. 91, 52 Am. Dec. 494. 1.54 Record of Indictment. § 133 further indorsement by the dark, showing the fact and date of filing is not essential to its validity, but may be made at any time while th.e case is in fieri, or may be dispensed with in a proper case.^^ And in an early case in Vermont it is decided that the statute requiring the clerk to make a minute of " the true day, month and year," when presented in court, upon all informations and indictments, does not require that the name of the month should appear in the minute, if from the records of the whole term, it admits of no doubt at what time the minute was made.^* And in a case in Iowa it has been decided that the omission in an indorsement on an indictment of the words " presented in open court " and " in the presence of the grand jury " is not a cause for quashing an indictments^® And the failure of clerk to enter upon an indictment the day of its return into court has been held not to entitle the defendant to his discharge.^® 23. Stanley v. State, 88 Ala. 154, 7 So. 273, so holding under § 4386 of the Code, providing that "All indict- ments must be presented to the court by the foreman of the grand jury, in the presence of at least eleven other jurors; must be indorsed 'filed,' and the indorsement dated and signed by the clerk." See Spear v. State, 120 Ala. 351, 25 So. 46. Xndictment may lie marked filed at subsequent term. — Pence V. Commonvyealth, 16 Ky. Law Rep. 148, 26 S. W. 810. 24. State v. Bartlett, 11 Vt. 650. The minute in this case was as fol- lows, " Received and filed this 29th, 1838." The court said: " If the min- ute is sufficient to answer all the pur- poses, for which it is required, any verbal departure from the precise requisitions of the statute ought not to be held fatal to the proceedings. In the present case, although the word ' month ' is not found in the minute of the clerk, nor yet the word 'day,' as expressly required by the statute, still if the minute by refer- ence to the records of the term, will admit of no possible misapprehension it is sufficient." Per Redfield, J. See, also. State v. McGuire, 87 Iowa, 142, 54 N. W. 202, holding, where the indorsement upon an in- dictment recited that it was pre- sented to the court " at the May term, 189 — ," and was filed the eighth day of May, 1891, that the presump- tion was that it was found and pre- sented at the May term, 1891, and that -a, motion to vacate it because it did not show the year and term at which it was found was properly overruled. 25. State v. Jolly, 7 Iowa, 15. The iiidorsemeii.t need not name the court to which the in- dictment is presented. State v. Jolly, 7 Iowa, 15. 26. State v. Clark, 18 Mo. 432. 155 §§ 134, 135 EeCOED of iNDICTMElSrT. § 134. As to jurisdiction of court. —It should appear from the record that the indictment was found by a court of the proper county and it will not be presumed, in the absence of any state- ment to that effect, that -the indictment was so found.^'^ § 135. As to organization and qualification of grand jury The record should also show affirmatively the organization of the grand jury,^* and that the grand jurors were residents of the county.^* But it has been decided that the impanelling of the grand jury sufficiently appears on the record where it shows that the grand jury returned the indictment into open court, and it is stated in the indictment that the grand jury was' duly em- panelled, sworn and charged.^" And it is not essential that an indictment should show that the grand jury was composed of mem- bers who possessed the statutory qualifications.*^ And it has 27. Clark v. State, 1 Ind. 253, holding that an objection on this ground may be taken advantage of by motion to quash or in arrest of judgment. 28. Parmer v. State, 41 Ala. 416, holding that an indorsement on an indictment which purports to be signed by the foreman of the grand jury, is not sufficient proof of that fact. See § 68 herein. As to sufficiency of sho-trmg of record, see Bailey v. State, 39 Ind. 438. It \rill be presumed, where an indictment is duly exhibited in open court and indorsed a " true bill," that the list of jurors was legally se- lected, unless the contrary is shown by the records. But when the records show that the grand jurors were not legally selected and had no authority to act, it is evidence of a, higher grade, and shows that the indictment could not have been found, exhibited and indorsed by legal authority. Dutell V. State, 4 G. Greene (Iowa), 125. 29. Territory v. Woolsey, 3 Utah, 470, 24 Pac. 765, wherein the court said: "The record of this case, which describes the grand jury, and to some extent purports to set out its qualifications, absolutely omits to state that those composing it were ' residents of the county ' of Great Salt Lake, which comprised the juris- diction of the court, and constituted the very body for and over which the grand jurors were charged to inquire. As this qualification, residents ' of the county,' is thus required by the very letter of the Utah statute, as well as by the example of every known judicial system of which the jury is an element, its omir-sion from the description of the grand jury is a fatal error." Per Titus, J. 30. Powers v. State, 87 Ind. 144. 31. Stone v. State, 30 Ind. 115. As to qnaliflcatioiis. — ^Where the record recites that the grand jur- 156 Rbcoed op Indictment. i§ 136 been decided that the return, of the bill into court by the grand jury properly indorsed by the foremian is evidence that the proper number have concurred in the finding, vphich cannot be contro- verted by plea.^^ But in a case in Maine it is decided that if, on motion in writing, in the nature of a plea in abatement, it appear that in finding a bill of indictment there could not have been a concurrence of so many as twelve lawful grand jurors, the accused cannot lawfully be required to plead to the indictment, or be put upon trial, and that such an objection to the indictment is not too late, though not taken till the arraignment of the pris- oner. 33 § 13i6. As to swearing of grand jury. —The fact that the grand jury were sworn is held to be a matter which should appear from the record.** It has, however, been decided in Alabama that under the statute in. that state, the objection can not be raised on error for the first time that the record does not show that the grand jury was swom.*^ And it vsdll be presumed that the proper oath was administered where the record recites that the jurors were sworn according to law.*® ors returning an indictment were " good and lawful men, household- ers " of the proper county, it will be presumed that they possessed all the statutory qualifications. Willey v. State, 46 Ind. 363. 32. Clark v. State, 24 Ind. 151. See, also, Sparrenberger v. State, 53 Ala. 481, 25 Am. Dec. 643; Nash v. State, 73 Ark. 399, 84 S. W. 497. Presnniptioii as to niunber finding Indictment. — ^In a case in Virginia it is decided that, according to the maxim " all things are pre- sumed to be rightly done," in the ab- sence of evidence to the contrary, it will be presumed that an indictment found by a number of grand jurors less than that required at a regular "term of court, was found at a term when a grand jury might lawfully be composed of the lesser number. Price V. Commonwealth, 21 Grat. (Va.) 846, 855. 33. State v. Symonds, 36 Me. 128, citing and approving Low's Case, 4 Me. 439. 34. Foster v. State, 31 Miss. 421, holding that the statement in the indictment that they were sworn is not suflBcient. See, also, Abram v. State, 25 Kiss. 589; Cody v. State, 3 How. (Miss.) 29. This latter case is cited and affirmed in the two pre- ceding cases. See § 80 herein. 35. Roe V. State, 82 Ala. 68, 3 So. 2. ,36. Wells V. State (Ark. 1891), 16 157 §§ 137, 138 KiESCoitD OF Inmctment, § 137. As to names of grand jurors. — In an earlj case it is de- clared that the names of the grand jurors ought to appear in some part of the record.®^ But where the record shows that the grand jurors were regularly drawn and summoned it is decided that a mistake of the clerk in transcribing one of their names is not a good matter for a plea in abatement to the indictment.** And likewise it has been decided that where the record recites the names of the grand jurors as sworn, but omits on© name, there is iio ground for reversal.** § 138. As to offense charged. — In the absence of any express requirement of the statute it is not generally held necessary that there shall be an entry on the minutes of the court of the nature or name of the offense charged against a defendant.*" It may, S. W. 577; Brown v. State, 10 Ark. 607. Sworn "according to 8tatnte." — ^A recital that the grand jurors were sworn " according to the sta- tute " is sufficient. Such a recital is held to admit of no other reasonable inference than that the oath pre- scribed was administered. Pierce v. State, 12 Tex. 210. It xrill be pregnmed that the JnroTS Turere there and there sworn, where it appears from the record that they were sworn. Wood- sides V. State, 2 How. (Miss.) 6.55. In Oregon it is decided that it will be presumed that an official duty has been regularly performed and that an indictment which complies with a form recommended by the legislative assembly is sufficient, though it omits a recital therein of the oath of the grand jurors. State V. Guglielmo, 46 Oreg. 250, 79 Pac. 577, 80 Pac. 103. 37. Mahan v. State, 10 Ohio, 232. The court said, however, that " it is probable that on motion a certiorari would be awarded, and the defect cured by the sending up of a new record." Per Wood, J. 38. Germolgez v. State, 99 Ala. 216, 13 So. 517. See State v. Mahan, 12 Tex. 283. 39. Tanner v. State, 92 Ala. 1, 9 So. 613; Floyd v. State, 30 Ala. 511. 40. Tellison v. State, 35 Tex. Cr. R. 388, 33 S. W. 1082; Steele v. State, 19 Tex. App. 425. See Good- wyn V. State, 4 Sm. & M. (Miss.) 520. An entry misnaming the of- fense charged is no ground of ob- jection where it is not essential to the sufficiency of the entry that it should name the offense charged. In such a case the entry was declared to be " an unnecessary act on the part of the clerk . . and should not be held to vitiate the indictment." Hewlett V. State, 23 Tex. App. 191. Snfficient description of of- fense in record. — ^The record of the finding of an indictment for retailing 168 Kecoex* of Indictment. §§ 139, 140 however, by statute be necessary to make some entry upon the minutes in reference to the offense charged.*^ But even in those jurisdictions where it is necessary that there be some such entry upon the record it is not required that the record should show all the constituents of the offense charged, it being declared that it is sufficient if there is a mere general though imperfect descrip- tion, provided there is no material variance from the indict- ment.** § 139. Record need not shov7 indictment on testimony duly sworn. — It need not appear on the record, in the absence of a stat- ute to the contrary, that the indictment was found upon testimony duly sworn.** § 140. Of indictment against two or more persons. — ardent spirits without license was lield to be sufficient where it states that the grand jury presented an in- dictment against William Tefft for retailing liquors, a true bill. Tefift V. Commonwealth, 8 Leigh (Va.), 721. And in a case in Virginia it was decided that the following entry on the record of the finding of an in- dictment for a misdemeanor was suffi- cient : " Returned into court, and among other things, presented an in- dictment against Thomas Nutter for felonious assault and battery.'' " A true bill." Commonwealth v. Nut- ter, 8 Gratt. (Va.) 698. 41. Denton v. State, 3 Tex. App. 635, decided under Article 389 of the Code of Criminal Procedure previous to its amendment in 1876, which re- quired that " The fact of the present- ment of the indictment in open court by the grand jury shall be entered npon the minutes of the proceedings of the court, noting briefly the style of the criminal action and the of- fense charged." It was held in this case that an entry noting the offense as "A to kill " was not a sufficient compliance with the requirement. 42. State v. Geyer, 44 W. Va. 649. 29 S. E. 1020, citing State v. Gilmore, 9 W. Va. 641; State v. Fitzpatriek, 8 W. Va. 707. 43. United States v. Murphy, Mc- Arthur & M. (D. C.) 375, 48 Am. Rep. 75. Justice Castuk said in de- livering the opinion in this case: " The law presumes that when the grand jury find their indictment, they find it upon the sanction of the necessary facts, and under the re- strictions and within the purview of the oath they have taken, and when they have done that, they have done all that the law requires of them." See, also. King v. State, 6 How. (Miss.) 730; Gilman v. State, 1 Humph. (Tenn.) 59. See §§ 123-126 herein as to whether finding of grand jury can be varied by extrinsic evidence. 15» § Ml Recoed of Indictment. Wliere an indictment is found against two or more persons and the clerk, in making an entry of it, omits one or more names of the accused, an objection that such name or names were omitted is not available in behalf of the person or persons whose names were correctly noted, it being declared that such an entry is suf- ficient to show that an indictment was found against one whose name was correctly copied.** But where an indictment was against two persons, and the clerk, in making a minute of it, acci- dentally omitted the nam© of one of the accused persons, it was held that the record could not be amended at a subsequent term of the court by inserting the name which was omitted, and that the indictment against such person must be quashed.*^ § 141. Filing away of indictment — Reinstatement of. — In Kentucky the practice has long been recognized of filing away an indictment and the subsequent reinstatement thereof by mo- tion.** So in a case in this state it has been decided that, although 44. Drake & Coehren's Case, 6 Gratt. (Va.) 665; Blevins v. State, Meigs (Tenn.), 82, holding that if an indictment be preferred against two for a certain offense, and the record shows that the grand jury came into open court, in a, body, and re- turned a. bill of indictment against one of them, for the same offense, upon which he is afterwards ar- raigned, tried and convicted, the judgment will not be arrested on ac- count of this ambiguity in the record, for the fact that the indictment was preferred against two does not make it the less of an indictment against one of the two. See, also, State v. Compton, 13 W. Va. 852. 45. Drake & Coehren's Case, 6 Gratt. (Va.) 665. Compare State v. Banks, 40 La. Ann. 736, 5 So. 18, holding it suffi- cient where the whole record showed that the indictment which was pre- sented was entitled " State of Louis- iana V. Adolphus Banks et als.", though in the minutes of the day the clerk erroneously copied the title as against Banks only. See State V. Bell, 159 Mo. 479, 60 S. W. 1102. 46. Jones v. Commonwealth, 114 Ky. 599, 71 S. W. 643. It was said in this connection by the court: " The practice of filing away indict- ments, though never authorized by legislative enactment, has long ob- tained in this State. It either came to us as a part of the common law, or was devised by some one or more of the pioneer jurists of our Common- wealth, to whose wisdom we are in- debted for much that is good in our present system of jurisprudenee. At any rate, the long continuance of the practice, and its convenience as well, admonish us that it would be unwise 1.60 Record of Indictment. § 142 an indictment had been filed away by order of court for more than eight years, wliithout a provision in the order itself for its re- instatement, its validity is not thereby affected as against a de- fendant "who was not before the court, and such an indictment may be reinstated on the arrest of the defendant and a trial may be had thereon.*'' It has, however, been determined that such practice should not be allowed, under the constitutional provision that in prosecution by indictment or information the accused shall have a speedy trial, where the accused is present in court, objects to the order and demands a speedy trial.*^ § 142'. Omissions supplied by reference to other parts of record. — .It may be stated as a general rule that where there is any uncertainty or omission in one part of a record, it will not be fatal, provided the uncertainty can be explained or the omis- sion supplied by resort to any other part of the record.*® So it has been decided that even if it be error not to state the character of the offense charged, in the first entry of the minutes, such error is not fatal where the omission is supplied by other parts of the record.^" And where an indictment charged the commission of an offense on the 18th of August, and it appeared that the in- dictment was filed on that day, from the clerk's indorsement thereon, it was decided that the record entry of presentments by the grand jury, showing that it was filed on a date subsequent to to abrogate it altogether." Per Set- ney for the Commonwealth on hia TLB, J. own motion to file the indictment See, also, Ashloek v. Common- away on conditions, and hold the wealth, 7 B. Mon. (Ky.) 44. prosecution in terrorem over the de- 47. Gross v. Commonwealth, 26 fendant, and we do not approve of Ky. Law Rep. 870, 82 S. W. 618. such practice." Per White, J. 48. Jones v. Commonwealth, 114 49. Commonwealth v. Stone, 3 Ky. 599, 71 S. W. 643. Citing Com- Gray (Mass.) 453; Goodwyn v. State, monwealth v. Bottoms, 105 Ky. 222, 4 Sm. & M. (Miss.) 520. 48 S. W. 974, wherein the court said 50. Goodwyn v. State, 4 Sm. & M. where a similar question was raised: (Miss.) 520, Judge Thacheb said: " Where the defendant is before the " It is a rule well settled, that if court, and the case stands for trial, there be an uncertainty in any part we are not aware of any rule of prac- of the record, it may be explained by tice that would authorize the attor- any other part of the record." 161 § 143 Kecoed of Indictment. that on which the commission of the offense was charged was admissible for the purpose of showing the true date of the pre- sentment of the indictment by the grand jury.°* § 143. Amendment of record — Nunc pro tunc entries. — Nvnc pro tunc entries may be directed by the court to be made on the record in furtherance of justice,^^ as in the case of a clerical error or misprision of the clerk.^' And it may be stated as a general rule that the record may be amended by a nunc pro tunc entry to show the return of an indictment into court ;*** for where the record fails to show this fact, it is declared that it is not only competent for the court, but that it is its duty, whenever the fact is brought to its attention that the clerk has omitted to make the proper entry in regard thereto, to cause the same to be done by an entry nunc pro tunc, so that the record will conform to the facts as they actually occurred and existed.^® And likewise such an entry is permissible in respect to the filing of an indictment'"' as to the placing of the file mark thereon"*^ or to amend the clerk's signature to the file mark,** or to show the date of filing.*' So 51. Kennedy v. State, 11 Tex. App. 73. 52. State v. Clark, 18 Mo. 432. 53. Gore v. People, 162 111. 259, 44 N. E. 500. 54. Arkansas. — Green v. State, 19 Ark. 178; holding, however, that accused must be in court when amendment made. Illinois.— Gore v. People, 162 III. 259, 44 N. B. 500, holding that court has such power where there is suffi- cient memoranda or record by which to amend. Indiana. — Waterman v. State, 116 Ind. 51, 18 N. E. 63; Long v. State, 56 Ind. 133 ; Bodkin v. State, 20 Ind. 281. North Carolina. — State v. Bor- deaux, 93 N. C. 560. Tennessee. — State v. Willis, 3 Head (Tenn.) 157. Texas. — ^Moore v. State, 46 Tex. Cr. 520, 81 S. W. 48; Tyson v. State, 14 Tex. App. 388. Vermont. — State v. Butler, 17 Vt. 145. But see Felker v. State, 54 Ark. 489, 16 S. W. 663. 55. Waterman v. State, 116 Ind. 51. 56. West V. State, 71 Ark. 144, 71 S. W. 483; Pence v. Commonwealth, 95 Ky. 618, 26 S. W. 810, holding it may be supplied at a subsequent term. 57. Kirkham v. People, 170 111. 9, 48 N. E. 465; Rippey v. State, 29 Tex. App. 37, 14 S. W. 448. 58. The clerk's signature to the file mark on an indictment may be amended. Scrivener v. State, 44 Tex. Cr. Rep. 232, 70 S. W. 214. 59. State v. Bell, 159 Mo. 479, 60 162 Recoed of Indictment. § 144 it is declared in a receait case in Alabama tliat the mere omission of tiie clerk to mark an indictment filed when returned into court by the grand jury may afterwards be corrected by so indorsing it under the direction of the court. This is regarded as a mere cleri- cal omission, tbe correction of wbich could not possibly affect the validity of an indictment otherwise regular and legal. ®'' And an error in the record as to the impanelling of the grand jury, which is a merely clerical one, is held not to be fatal but correctible by the court *^ But where a biU was indorsed "a true bill," against a person of a different name than the one against whom the indict ment was found and the name noted upon the record corresponded to the indorsement, it was decided tbat the record could not be amended to conform to the indictment.^ § 144. Same subject continued. — As to the course of amend- ing the record as to an indictment, it is said in a case in Texas that the proper course would be by an order at the time when the amendment is made, and not by erasing or altering an order en- tered upon the minutes at a previous term of the court.®* And where an order amending the record in reference to an indictment was actually made at a former term of court, and the clerk failed to enter the same, the court may at any time direct such an order to be entered on the records as of the term when it was made.®* S. W. 1102, wherein it is declared 8 Grat. (Va.) 589, so holding in the that the record should show that the case of an indictment for wilful tres- indictment was filed the date of its pass against Joseph McKinney which return into court and that the court was indorsed by the grand Jury has power to make an entry nunc pro against Thomas McKinney " a true tunc to show this. bill," and it was so noted upon the 60. Hicks V. State, 123 Ala. 15, 26 record. So. 337. Per Tyson, J. 63. Rhodes v. State, 29 Tex. 188. 61. State V. Gilmore, 9 W. Va. Wliere no order is made. — ^An 641, holding that a recital in the entry made at a subsequent term record that the jurors " were sworn where no order has been made au- a grand jury of inquest upon the thorizing it will not cure an omission body of Mineral County " could be to make such entry at the proper corrected to read " for " instead of time. Bowen v. State, 81 Ga. 482, " upon." 8 S. E. 736. 62. Commonwealth v. McKinney, 64. Rhodes v. State, 29 Tex. 188. 163 § 145 Kecoed of Indictment. But an entry at a subsequent term of the fact tliat the indictment was returned into court will not cure the omission to enter the order at the proper time, where there has been no order to make the entry nunc pro tunc.^^ And it has been held that the court has no power at a subsequent term to order an amendment of the original entry in this respect.** § 145. Power of court to supply record — Lost indictment. — It is said that a court of record of general jurisdiction has in- herent power, independent of any statute, to re-establish its lost or destroyed records or proceedings.*^ And it is generally recog- nized that in the exercise of this power a court may, in the absence of any statutory or code provision which is controlling, proceed as in civil cases, and may direct 'that a lost or destroyed indict- ment be supplied by a copy established as such by satisfactory proof.** It is, however, determined that a court should be careful 65. Bowen v. State, 81 Ga. 482, 8 S. E. 736. 66. Cornwell v. State, 53 Miss. 385. 67. State v. Simpson, 67 Mo. 647, holding that the court has, independ- ent of any statute, to supply a lost, mutilated or destroyed record. See, also, cases cited in following note. 68. Florida. — Roberson v. State, 45 Fla. 94, 34 So. 294, quoting from 1 Bishop New Crim. Proc, § 1400, as follows : " The better opinion is that when the indictment is lost, the prosecution may proceed to trial, on a substituted copy, if exact, and the proof of it conclusive." See, also: loiva. — State v. Shank, 79 Iowa, 47, 44 N. W. 241. MisslBsippl. — Helm v. State, 67 Miss. 562, 7 So. 487, wherein the court said, per Judge Woods : " We cannot bring ourselves to sanction for a moment the idea that whenever an indictment is lost, or mislaid, or stolen, during the progress of a trial for a capital felony, there can be no substitution of the missing paper, but that in every such case there must follow the discharge of the pris- oner. We hold to the reasonable rule that a criminal pleading, like any other, may be supplied by substitu- tion, in some proper way, — in the manner prescribed by law." Missouri. — State v. MeCarver, 194 Mo. 717, 92 S. W. 684; State v. Simp- son, 67 Mo. 647. Fennsylvania. — Commonwealth v. Becker, 14 Pa. Super. Ct. 430, hold- ing that such power exists in a court which has jurisdiction of the cause. South Dakota. — State v. Circuit (S. D.), 104 N. W. 1048. Tennessee. — State v. Gardner, 13 Lea (Tenn.), 134, wherein it was de- clared by Judge Feeeman that " The plain principle of the common law and of sound reason should apply in a criminal case as well as in civil 164 Eecoed of Indictment. § 145 in exercising this authority, and that it only has power to supply a lost indictment when there is evidence to show that it was a cases, that is, when the papers are lost, they shall be carefully and ac- curately supplied, by satisfactory evidence of their loss and their con- tents." But see Ganaway v. State, 22 Ala. 772, wherein the question whether the court has power to allow the sub- stitution by the satisfactory proof of a copy of an indictment which has been lost is considered. It was there argued that the right of the court to supply or substitute any part of the record which has been lost or de- stroyed, in a civil case, existed also in the case of a lost indictment. But the court, after considering the ques- tion, reached the conclusion, from, which two judges dissented, that the court had no such power. It was de- clared by one of the judges in this case that " The court has no power to make an indictment, or to direct one to be made. That power resides ex- clusively with the grand jury. Ad- mitting, then, that a court may sup- ply or substitute whatever part of the proceedings it has power to is- sue or create in the first instance, yet the principle will not embrace an in- dictment because the court has no power to make that or direct it to be made." Per Phelan, J. Compare Commonwealth v. Keger, 1 Duv. (Ky.) 240. Evidence insufficient to shoxr proposed substitute a substan- tial copy. — State v. Thomas, 97 Iowa, 396, 64 N. W. 743, so holding under following facts: On a motion to substitute an alleged copy of a lost indictment, the attorney who made the motion, testified that he never saw the original, nor a copy of it, nor consulted with the attorney who drew it, as to its contents; and that he drew the proposed substitute after examining, and having returned to their custodian, the minutes of the evidence before the grand jury. The attorney who drew the original testi- fied that the substitute contained sub- stantially all the allegations in the original, but that he could not say it was a, true copy; that it was more voluminous than the original, and contained allegations not in the lat- ter; that there were descriptions, as to instruments used by defendants in committing the oflFense, changed, which were not in the original, and that the latter did not contain the words " and of their malice afore- thought " found in the substitute proposed. The accidental mutilation of an indictment by tearing it does not necessarily destroy its identity. Com- monwealth v. Roland, 97 Mass. 59S, holding that an indictment torn into three pieces, which may be so united without the omission of any material word as to restore it substantially to the form in which it was presented in court by the grand jury, is sufficient a- a basis for further legal proceed- ings. The court said : " The acci- dental mutilation of the indictment by cutting it into several pieces does not destroy its identity or prevent its being restored to a condition in which it can be rendered intelligible and 165 § 146 E.ECOBD OF Indictment. record of the court.*® And where the original has been lost it has been declared that it would be proper to show by affidavit that the original bill has been lost or destroyed, but that the omission to file such affidavit would be merely a technical error or defect which should be disregarded.'^'' § 146. Same subject — Statutory provisions affecting The question as to the course to be pursued in the case of a lost in- dictment may, however, be provided for by statute.''^ So, under the statutes in force in several states, in case of the loss or de- struction of the original indictment, the person, indicted may be tried and convicted on a copy from the record where there is no plea denying that the original has been found and returned by the grand jury into court. ''^ And in Texas it was decided that under substantially complete in all essential particulars. When the parts are united, as can readily be done with- out danger of mistake, by joining several words which have been sev- ered, there will be no material omis- sion of any averment, or even word, contained in the indictment as pre- sented in court by the grand jury. This is manifest from inspection. It can not, therefore, be properly said that the indictment is destroyed or in such condition as to be rendered un- fit to be the basis of further proceed- ings." 69. State v. Simpson, 67 Miss. 647. 70. Millar v. State, 2 Kan. 174, decided under § 276 of the Criminal Code, providing that technical errors or defects are to be disregarded. 71. State V. Elliott, 14 Tex. 42.3, decided under Hart Dig., Art. 464, providing that in such a case the fact of the loss is to be entered upon the minutes of the court, which avoid the Statute of Limitations, and a new indictment is to be preferred. 72. Arkansas. — ^Miller v. State, 40 Ark. 488, one judge dissenting. De- cided under Acts of 1881, § 2, p. 106. lionisiana. — State v. Heard, 49 La. Ann. 375, 21 So. 632, decided un- der Act 17 of 1878. Mississippi. — ^McGuire v. State, 76 Miss. 504, 25 So. 495, decided un- der Code 1892, § 1347. Tennessee. — Epperson v. State, 5 Lea (Tenn.) 291, decided under Code, § 5139. Texas.— Withers v. State, 21 Tex. App. 210, 17 S. W. 725, construing Art. 434 of the Code of Criminal Procedure. A statute is valid and consti- tntional which so provides. Mc- Guire v. State, 76 Miss. 504, 25 So. 495. So in Texas it was decided that such a statute was not in conflict with the Fourteenth Amendment of the Constitution of the United States or of § 10, Article 1, of Bill of Rights of the State Constitution. Withers V. State, 21 Tex. App. 210, 17 S. W. 166 Recoed of Indictment. § 147 the statute there in force, the district attorney had the right to substitute an indictment for one which, though not lost or mislaid, had become so mutilated as to be unintelligible.'^® Again, a stat- ute providing for the re^establishment of lost or destroyed papers, records, files and proceedings, has also been held to apply as well to the re-esitablishment of the papers, records, files and proceed- ings in a criminal case as to a civil case, and to permit the re- establishment of a lost or destroyed indictment, provided the copy produced for re-establishment be conclusively shown to be an exact and accurate copy of the lost original.''* § 147. Same subject — After arraignment or trial. — Where a defendant has been arraigned upon an indictment, and it is sub- sequently lost or abstracted, the courts generally recognize the ex- istence of the power to substitute a copy and to proceed upon the record thus made the same as upon the original indictment. ''* So in a case in Alabama, the earlier case of Gannaway v. State,''® is 73. State v. Ivy, 33 Tex. 646. See Bowers v. State, 45 Tex. Cr. 185, 75 S. W. 299, holding that though there may be a substitution of an informa- tion or complaint, such substitution is a judicial act, and is upon notice, and that it is competent for the de- fendant to contest the substitution of such papers if he sees fit, but that the only contest that can be made is that the substituted paper is not a sub- stantial copy of the original. 74. Roberson v. State, 45 Fla. 94, 34 So. 294. 75. State v. Rivers, 58 Iowa, 102, 12 N. W. 117, wherein it is said " This rule is in consonance with modern practice, which disregards unimportant technicalities, not vital or material to the rights of the par- ties." Per ROTHKOCK, J. See Schultz v. State, 15 Tex. App. 258, 49 Am. Rep. 194, so holding un- der Art. 434 of the Code of Criminal Procedure. State v. Rivers, 58 Iowa, 102, 12 N. W. 117, in which the court in deciding that a court has power to substitute a copy of an indict- ment lost after the arraignment of the accused says : " There is an in- herent power in the court to preserve and protect its jurisdiction when it has once attached, and to that end we can see no good reason why it may not substitute any of its records which may be lost, by properly authenticated copies." Per Roth- EOCK, J. Wliere the defendant is ar- raigned upon the original in- dictment, which is subsequently lost, it is not necessary to the legal- ity of his trial upon a certified copy of such indictment that there be a new arraignment. McGuire v. State, 76 Miss. 504, 25 So. 495. 76. 22 Ala. 772; see preceding section. 167 § 148 Eecoed of Indictment. distinguished and it is decided that where aa indictmeM is lost after arraignment and pending the trial of the accused, the court ihas the inherent power to order the substitution of the in- dictment, -without the consent of the accused or of his counsel.^^ And in Ohio it has been decided that if, after conviction, the in- dictmemt be stolen from the files, its place may be supplied by a copy, like lost instrumeaite or pleadings, and that the presence of the original indictment is not indispensible to the sentence of the prisonerJ^ And a similar conclusion has also been reached in a recent case in West Virginia.''® But where it was sbowQ' that the original indictment was on file in the clerk's office, where it had 'been sent for inspection of the court on a former appeal, which fact was within the knowledge of the parties by whom it could have been obtained by taking proper steps, it was decided that the original could not be considered as lost, mislaid, mutilated or obliterated, so as to authorize a substitution thereof.*" § 148. Where indictment found after substitution. — ^Where a court has substituted an indictment for one which has been misplaced and the original is subsequently found, the court may properly permit the trial to proceed on the original.*^ In a case in Georgia it is decided that where a paper has been, by a proper order of court, established as a copy of a lost indictment or presemtment, the copy, until such order has beem set aside, stands in lieu of the original, and that if such order is not revoked, the mere finding of a paper purporting to be the lost original cannot in any manner .affect the legal status of the case. 82 77. Bradford v. State, 54 Ala. 230. 80. Shehane v. State, 13 Tex. App. 78. Mount V. State, 14 Ohio, 295, 533. 45 Am. Rep. 542. 81. Owens v. State, 46 Tex. Cr. 14, 79. State v. Strayer, 58 W. Va. 79 S. W. 515. 676, 52 S. E. 862. 82. Branson v. State, 99 Ga. 194, 23 S. E. 404. 168 CHAPTER VII. Captioit and Commencement. Section 149. Caption; not a part of indictment. 150. Sufficiency of caption generally. 151. Effect of errors or defects. 152. Caption applies to each count. 153. Caption should be distinguished from commencement; confusion between. 154. Necessity for caption generally. 155. What caption should state generally. 156. Caption should state place at which found. 157. Same subject; application of rule. 158. As to time of finding indictment generally. 159. Same subject; effect of clerk's certificate. 160. Should show jurisdiction of court; generally. 161. Same subject; no statement in caption; sufficient if record showft jurisdiction. 162. Same subject; amendment of caption. 163. Names of judges. 164. Time and place of holding court; generally. 165. Same subject; as to terms of court. 166. Same subject; reference to first day in stating term of court. 167. Name of offense. 168. Name of defendant. 169. Grand jury; showing as to county. 170. Grand jury; as to qualifications generally; "good and lawful men." 171. Same subject; that grand jury summoned and returned. 172. Same subject; that grand jurors were sworn. 173. Same subject; as to number of grand jurors. 174. Same subject; as to names of grand jurors. 175. Reference to caption to cure defects in indictment. 176. Amendment of caption. 177. Commencement of indictment; generally. 178. Effect of clerical or grammatical errors. 179. Grand jury; commencement should show county. 180. Grand jury; matters vmnecessary to state. 181. Showing as to presentment; use of words '"on their oath." 182. Necessity of averment as to grand jury in each count. 169 § 149 Caption and Commencement. 183. Showing that prosecution is in the name and by the authority of the State. 184. Same subject; effect of constitutional or statutory provisions. 185. As to the offense. 186. Defects cured by reference to caption or other parts of indict- ment. % 149. Caption — Not a part of indictment. — ThB caption of an indictment is regarded as no part of the indictment^ It is merely 1. United States. — United States V. Clark, 46 Fed. 633; United States V. Thompson, Fed. Cas. No. 16,490, 6 McLean, 56. Dakota. — United States v. Beebe, 2 Dak. 292, 11 N. W. 505. Illinois. — George v. People, 167 111. 447, 47 N. E. 741. IionisiaiLa. — State v. Folke, 2 La. Ann. 744; State v. Kennedy, 8 Rob. 690. Maine. — State v. Canley, 39 Me. 78. MissonrL — State v. Daniels, 66 Mo. 192; Kirk v. State, 6 Mo. 469. New Hampshire. — State v. Gary, 36 N. H. 359. New Jersey. — State v. Society for Establishing Useful Manufactures, 42 N. J. L. 504; State v. Jones, 9 N. J. L. 357, 17 Am. Dec. 483. New York. — People v. Bennett, 37 N. Y. 117, 93 Am. Dec. 551; People V, Myers, 2 Hun, 6. NoTtlh Carolina. — State v. Brick- ell, 8 N. C. 354. Bhode Island. — State v. Mowry, 21 R. L 376, 43 Atl. 871. Tennessee. — ^Mitchell v. State, 8 Yerg. 514; McClure v. State, 1 Yerg. 206. Texas. — English v. State, 4 Tex. 125. Vermont. — State v. Gilbert, 13 Vt. 647. Virginia. — Robinson v. Common- wealth, 88 Va. 900, 902, 14 S. E. 627. Wisconsin. — State v. Emmett, 23 Wis. 632; State v. McCarty, 2 Chand. 199, 2 Pin. 513, 54 Am. Dec. 150. Mr. Chitty said in this connection: " When the indictment is returned from an inferior court, in obedience to a writ of certiorari, the statement of the previous proceedings sent with it is termed the ' Schedule,' and from this instrument the caption is taken. When thus taken from the schedule, it is entered upon the record, and prefixed to the indictment, of which, however, it forms no part, but is only the preamble, which makes the whole more full and explicit. In cases of removal by certiorari, its principal object is to show that the inferior court had jurisdiction, and, there- fore, M. certainty in that respect is particularly requisite." 1 Chit. Cr. Law, 327, quoted in Robinson v. Com- monwealth, 88 Va. 900, 902, 14 S. E. 627. In Iionisiana it has been decided that the caption is uniformly dis- pensed with in that State. State v. Marion, 15 La. Ann. 495. Copy of indictment required 170 Caption aotj Commencement. § 150 tlie record of the court and might be wholly omitted.^ It need not be again repeated in any part of the indictment,* and a quashal of the first count, where there is more than one count, will not affect the others.* So it has been decided that an unnecessary written caption constitutes no part of an indictment, nor do mottoes or business cards, th|Ough unnecessary and imseemly, im- pair its validity if otherwise valid.^ § 150. Sufficiency of caption generally. — The sufficiency of a caption is not to be determined by strict adherence to technical- ities.® Wihere time and place are set forth in the caption of an indictment, with sufficient certainty to a common intent, it is said that legal subtleties and niceties are to be disregarded.'' As to the sufficiency of the caption generally, it is said by an early English authority that it may be sufficient though certain stater ments be omitted, such as "good and lawful men" or "then and there" if the indictment were in a superior court, and that which is omitted be, in common understanding, implied in what is expressed.® And it is said in an early case in Tennessee that to be served on the prisoner need not include the caption. Gater V. State, 141 Ala. 10, 37 So. 692. Ati abbreviation of the name of the State is not a fatal defect. Thus it was so held where it was headed " State of Mo." instead of " State of Missouri." State v. Fos- ter, 61 Mo. 549. There may be a rejection as snrplnsage of matter in the body of the indictment which properly be- longs in the caption. Rose v. State, Minor (Ala.), 28. 2. State V. Nixon, 18 Vt. 70; State V. Gilbert, 13 Vt. 647. 3. Reeves v. State, 20 Ala. 33. 4. West V. State, 27 Tex. App. 472, 11 S. W. 482. 5. Owens v. State, 25 Tex. App. 552, 8 S. W. 658, so holding where preceding the indictment, which was properly commenced, there was writ- ten or printed the following: "The Indictment; Empire Print; Encour- age home industry and your money will be circulated among the people." 6. State V. Brisbane, 2 Bay. (S. C.) 451; Tipton v. State, Peck. (Tenn.) 308. That dates in a caption are in Arabic nmnbers is not a. ground of objection. State v. Smith, Peck (Tenn.), 165. Snffifiient captions. — See Com- monwealth V. James, 1 Pick. (Mass.) 375; State v. England, 19 Mo. 386; Benedict v. State, 12 Wis. 313. 7. State V. Brisbane, 2 Bay. (S. C.) 451. 8. 3 Bae. Abridg. 573, 574. 171 !§!§ 151, 152 Caption and Commencement. " This authority lays down the principle, that ought to govern at this day, the construction a court is to give the caption of an indictment, to which the present ohjections and others of a like nature are taken; a principle formed in good sense, restraining and contravening the pernicious effect of too strict' an adherence to technical forms when it would operate against the reason that originally prescribed those forms, and he subversive of those ends, the use of them was intended to secure." ® § 151. Effect of errors or defects. — Though there may be er- rors or defects in the caption, an indictment will not be thereby vitiated.^" So the validity of an indictment is not affected by a misstatement of a date in the captiton,^^ or of the place where the offense was committed, where the place of commission is shown by the body of the indictment, ^^ or by a misnomer of the offense, the offense being correctly named in the indictment.-'* § 152. Caption applies to each count. — The caption of an in- dictment is a statement which is applicable to each count in the in- dictment,^* and the caption is not to be stricken out on a demurrer 9. Tipton V. State, Peck (Tenn), rest of judgment. Mitchell v. State, 308, 312. Per White, J. 8 Yerg. (Tenn.) 514. 10. Indiana. — Malone v. State, 14 11. United States v. Borneman, Ind. 419. 35 Fed. 824; State v. Robinson, 85 Iowa. — ^Hampton v. United States, Me. 147, 26 Atl. 1092; Commonwealth Morris, 489. v. Brown, 116 Mass. 339. North Carolina. — State v. Sprin- 12. In re McDonald, 19 Mo. App. kle, 65 N. C. 463. 370. Pennsylvania.— Commonwealth V. 13. Howard v. State, 67 Ind. 401. Shaffner, 2 Pearson, 450. 14. Paira v. State, 49 Ala. 25; Texas. — English v. State; 4 Tex. Donahue v. State, 165 Ind. 148, 74 125. N. E. 996; Greenwood v. Common- WTisconsin.— State v. Gaffrey, 4 wealth, 11 Ky. Law Rep. 220, 11 S. Chand. 163. W. 811; West v. State, 27 Tex. App. See, also, subsequent sections in 472, 11 S. W. 482; Dancey v. State, this chapter. 35 Tex. Cr. 615, 34 S. W. 113, 938. A -variance between the caption The cap-Hon need not lie again and the record is not a ground for repeated in any part of tho indict- quashing an indictment or for an ar- ment. Overton v. State, 60 Ala. 73, 172 CAPTioif AND Commencement. 153 wKicih is sustained to the first count. ^' So, where it appears from the caption of an indictment that the prosecution is " in the name and by the authority " of the state, this need not be again averred in subsequent counts, and where there is more than one ciount to an indictment and a nolle prosequi is entered as to the first, the subsequent counts will not be defective because such averment does not appear therein.*® § 153. Caption should be distinguished from commencement 1 — .Confusion between. — In the American courts there is, in many cases, a failure to recognize the distinction between the caption and commencement of an indictment, and that the caption is no part of the indictment, and owing to these facts it is frequently extremely difiicult to deduce rules as to whether the caption should or should not contain certain averments or statements.*^ So in citing Perkins v. State, 50 Ala. 154; Reeves v. State, 20 Ala. 33; Morgan V. State, 19 Ala. 558; State v. Mur- phy, 9 Port. (Ala.) 487. See, also, Anderson v. State, 39 Tex. Or. 34, 44 S. W. 824. 15. Pairo v. State, 49 Ala. 25; Greenwood v. Commonwealth, 11 Ky. Law Rep. 220, 11 S. W. 811. 16. Davis V. State, 19 Ohio St. 270. 17. United States v. Beebe, 2 Dak. 292, 301, 11 N. W. 505, in which the court says : " Some of the courts in this country do not recognize the dis- tinction between ' caption ' and ' com- mencement,' both being by them called ' caption.' It is no part of the indict- ment itself, and was originally only a copy of the style of the court at which the indictment was found. By the strictest rule of the common law, the caption was deemed sufficient if it described, with reasonable cer- tainty, the court before which the indictment was found, the time and place where it was found, and the jurors by whom it was found. Both the caption and the commencement are purely formal, and they may be amended, if faulty, by the record in the proper manner." Per Shan- non, J. State V. Kennedy, 8 Rob. (La.) 590, wherein it is said: "Now the caption is not to be compounded with the commencement, nor with any other part of an indictment. It forms no part of that instrument, but is a wholly separate and independent act, which is not submitted to, nor acted upon, by the grand jury, pre- fers no charge against the accused, and never figures upon the record until after the bill has been found, and, in general, not until the indict- ment is removed for trial to a higher tribunal, by a writ of error or of certiorari." Per KING, J. People v. Bennett, 37 N. Y. 117, 93 Am. Dec. 551, citing Bishop on Crim. Prac, § 154, as saying, " The whole question as to what a caption should contain 173 § 164 Caption and Commencement. a case in New York it is said, " A great deal of confusion, how- ever, exists in the books, because the distinction between the com- mencement and the caption of an indictment, which has always existed in England, has not uniformly been miaintained here. . . . The caption is no part of the indictment. It consists wholly of the history of the proceedings when an indictment is removed from an inferior to a superior court." ^* And it is said in a case in South Carolina: " There has been some contrariety of opinion as to where the caption ends and the indictment begins, and especially whether the words', ' The jurors,. etc., on their oaths, present,' constitute a part of the caption or a part of the indict- ment. In England and in many of the states following lie Eng- lish practice, these words are termed the commencement of the indictment, and not considered to be a part of the caption. But in our sitate it has been distinctly held that they are part of the caption; that it is mere introductory matter and constitutes no portion of the indictment." ^® § 154. Necessity for caption generally. — The eaptiion, as has been stated, forms no part of the indictment, and the necessity for thait instrument cannot arise while tie prosecution is pending in the court in which the bill is preferred.^" And in New York it has been decided that a caption is not necessary where an indict- ment is removed from a superior to an inferior oourt.^^ But a caption is held to be necessary where an indictment is removed into a superior court^^ In Louisiana it is decided that as a prose- appears when approached through from the court in which it is found American books, draped in mist and to a higher court. Robinson v. Corn- girded about with darkness." monwealth, 88 Va. 900, 14 S. E. 627. 18. People V. Bennett, 37 N. Y. 21. Loomis v. People, 19 Hun (N. 117, 93 Am. Dec. 551. Per Fulleb- Y.), 601. TON, J. 22. Tipton v. State, Peck. (Tenn.) 19. State V. Moore, 24 S. C. 150, 308, wherein it is said: "It is neces- 58 Am. Rep. 241. Per Simpson. J. sary that a caption should accom- 20. State v. Folke, 3 La. Ann. 744. pany every indictment removed into Per King, J. Wagner v. People, 4 a superior court, by certiorari or Abb. Dec. (N. Y.) 509. writ of error, in order to show that The caption does not appear the court which took the indictment until the indictment is transmitted had legal authorty and power to take 174 Caption and CoMiiENCEMEsx. §§ 155, 156 cution is never in that state removed from one to a higher tribunal a caption can be of no benefit to an indictment, and is uniformly dispensed with.^* § 155. What caption should state generally. — The caption of an indictment is said to be that entry upon the records of the court showing when and where the court was held, who presided as judge, the venire, and who were summoned and served as grand jurors.^* So in an early case in Mississippi it was held that it is the business of the caption of an indictment to state with suffi- cient certainty not only the style of the court, the judge then pre- siding, but the time and place when and where it was found, and the jurors by whom it was found.^® And in a case in !N^ew Hamp- shire the court, declared that " The caption is no part of the in- dictment; its office is to state the style of the court, the time and place when and where the indictment was found, and, in England and some of the states, the jurors by whom it was found; and these particulars it must set forth with reasonable certainty." ^^ § 156. Caption should state place at which found. — It may be stated generally that the caption should name the place at which the indictment was found,^'' and that this should appear with reasonable certainty.^® Where, however, the indict- it, for the offense specified in the in- " The caption is a mere his- dletment, for unless so taken there tory or record of the case, up to ought not to be any judgment upon the finding of the indictment, contain- it, and not only should the caption ing the name of the court, county, exhibit a court, having power to take and State, and where and by whom the indictment, but, also, that exer- the indictment has been found." cising this power, it had conformed State v. iloore, 24 S. C. 150, 5S Am. to legal requisitions." Per Hat- Rep. 241. Per SiMPSOX, J. WOOD, J. 25. Thomas v. State, 5 How. 33. State v. Marion, 15 La. Ann. (iliss.) 20. 495; State v. Lyons, 3 La. Ann. 154; 26. State v. Gary, 36 N. H. 359. State V. Kennedy, 8 Rob. (La.) 590. Per Fowuat, J. 24. Gater v. State, 141 Ala. 10, 27. Thomas v. State, 5 How. 37 So. 692, citing and quoting from (Miss.) 20. Overton v. State, 60 Ala. 73, which 28. State v. Gary, 36 N. H. 359; cites to same point Reeves v. State, Tenorio v. Territory, 1 N. M. 279; 20 Ala. 33. State v. Williams, 2 McC. (S. C.) 301. 1Y5 § 157 Caption and Commencement. ment itself or the record shows such fact, the validity of the indictment will nob be aflfected by the failure to state it in the caption.^* And the caption, even if defective in not stating the place where found, may be amended at any time to show ithis.*" But where the caption and the record of the organization of the court both fail to showl where the court was held, an indictment in such a case is held to be bad and may be quashed upon motion or taken advantage of by a motion in arrest of judgment.** i§ 157. Same subject — ^Application of rule. —Though the name of the state does not appear, it has been held sufficient where the body of the indictment shows such fact.*^ And where the caption stated the name of the court in which the indictment was found and the name of the county was stated in the body of the in- dictment, it was held that the indictment was not defective.** And under such circumstances a misrecital of ithe proper county in the caption of an indictment furnishes no ground for arrest of judgment.** Again, the entitling an indictment in a county to which other counties are attached for judicial purposes, rather than in all the counties so attached together, is a defect of form merely, and an indictment will not be set aside on this ground.** 29. Kilgore v. State, 73 Ark. 280, show a proper organization of the 83 S. W. 928; State v. Lane, 26 N. C. court below or of the grand jury. 113. ... Nor shall any such judgment 30. State v. Moore, 24 S. C. 150, be reversed because of any error or 80 holding where the name of the omission in the case in the court be- county was left blank as follows, low, unless the record shows that the " the jurors of and for the county of errors complained of were made a aforesaid, on their oaths ground of special exception in such present." The indictment was headed court." Miss. Code of 1880, § 1433. with the name of the State and 32. State v. Lane, 26 N. C. 113, so county, and alleged the county in holding where it was not stated that which, and the court house at which, the indictment was found in North the court was holden. Carolina but the county, Edgecomb, 31. Lusk V. State, 64 Miss.' 845, 2 was written in the margin of the bill. So. 256, holding that such a defect ,33. Kilgore v. State, 73 Ark. 280, was not affected by a code provision 83 S. W. 928. that "no judgment in any criminal 34. State v. Sprinkle, 65 N. C. case shall be reversed because the 463. transcript of the record does not 35. State v. McCartey, 17 Minn. 76. 176 Caption Am> Commencement. §§ 158, 159 § 158i. As to time of finding indictment generally. — Althougli it is said in the earlier decisions that a caption should show with reasonable certainty the time and place when the in- dictment was found,^® jet the later authorities hold that the fact that the caption contains an erroneous statement as fto the time when it was found is not a fatal defect which' vitiates the in- dictment,^' or furnish^ a ground for a motion to quash,^* the caption being no part of the indictment.*® Therefore a clerical error in the captioui as to the date of finding an indictment is not fatal.*" So where an indictment duly charges the commission of an offense at a time before it was found and the date of its pre- sentment appears by the record, an error in the date of the caption is immaterial.*^ And a defect in the caption as to the time when it was found may be cured by amendment under a statute pro- viding that " l^o indictment, complaint, return, process, judg- ment, or other proceeding, in any criminal case in the courts or course of justice, shall be abated, quashed, or reversed for any error or mistake, where the person or case may be rightly under- stood by the court, nor through any defect or want of form or addition; and courts and justices may, on motion, order amend- ments in any such ease." *^ § 159. Same subject — Effect of clerk's certificate. — "Where the clerk's certificate shows that an indictment was properly re- turned and filed, an erroneous date in ithe caption is held to be 36. State v. Gary, 36 N. H. 359; where a caption recited the date of Tenorio t. Territory, 1 N. M. 279; finding as 1885, instead of 1888, that State V. Williams, 2 McC. (S. C.) under the U. S. Rev. Stat., § 1025, 301. the error was a clerical one, which .37. George v. People, 167 111. 447, was not fatal. 47 N. E. 741. *1- Commonwealth v. Brown, 116 38. State v. Jenkins, 64 N. H. 375, Mass. 339, citing Commonwealth v. 10 Atl. 699. Smith, 108 Mass. 486 ; Commonwealth 39. United States v. Bomeman, 35 v Hines, 101 Mass. 33. Fed. 824. *2. State v. Jenkins, 64 N. H. 375, 40. State v. Mowry, 21 R. I. 376, 10 Atl. 699, construing N. H. Gen. 43 Atl. 871. See United States v. Laws, ch. 260, § 13. Bomeman, 35 Fed. 824, holding, 177 § 160 Caption and Commencement. ■harmless.*' And it has beigii decided in Massachusetts that an indictment which, taken in connection with the certificate indorsed thereon by the clerk at the time of its return into court, distinctly shows the date of its presentment by the grand jury, and of the commission of the offense charged, is not invalidated by a de- fective description, in its caption, of the term of court at which it was found,** § 160. Should show jurisdicton of court generally. — In the early English cases it was decided that the captioni should show that the court had jurisdiction and that it was a good objection to an indictment that it did not show this.*" And likewise it has been determined in the United States that the caption of an in- dictment should describe the court before which it is found, that it may appear that the court can exercise jurisdiction over the offense charged.*® And if by statute it is required that it sihould 43. State v. Robinson, 85 Me. 147, 26 Atl. 1092. See Commonwealth v. Smith, 108 Mass. 486. 44. Commonwealth v. Smith, 108 Mass. 486. Judge Gbay said : " It has already been held that an omis- sion in the caption, of the date of holding the term, is immaterial, when the date of Its presentment and return is stated in the clerk's indorse- ment, and the allegation in the in- dictment of the time of the commis- tion of the offense is consistent there- with. Commonwealth v. Hines, 101 Mass. 33. We are of opinion that a like rule applies to this case and that the statement, in the caption, of the year in which the court was held, may be rejected as inconsistent with the dates stated in the clerk's certifi- cate and in the body of the indict- ment, and as manifestly erroneous." 45. King V. Fearnley, 1 Term. R. 316, holding that where the caption of the indictment stated the court of quarter sessions, where the indict- ment was found, to have been held on an impossible day, it was fatal. King V. Roysted, 1 Keny. 255, holding an erroneous style of the sessions a suf- ficient cause for quashing an indict- ment. 46. State v. Kennedy, 8 Rob. (La.) 590; State v. Sutton, 5 N. C. 281; State v. Williams, 2 MoC. L. (S. C.) 301. See Thomas v. State, 5 How. (Miss.) 20, holding that the style of the court should be stated in the caption. See following sections as to neces- sity of describing court in caption. A statement in the body of an indictment as to the court in which it was found is not required where it sufficiently appears in the caption. Dean v. Tennessee, Mart. & Y. (Tenn.) 127. Where the record showed that an 178 Caption and Commencement. § 161 appear from the indictment that it was presented in a court having jurisdiction, it is essential that there be a sufficient de- scription of the court to show such faet*^ The objection, however, that the caption does not state the name of the court cannot, it is held, be raised by demurrer.** In Louisiana it has been decided that indictments need not describe the court before which they are found nor the jurors by whom they are found, nor need they aver that the court had jurisdiction of the offense.** § 161. Same subject — No statement in caption — Sufficient if record shows jurisdiction. — Although it may be stated generally that the caption should show that the indictm^ent was returned to a court having jurisdiction and the earlier eases were authority for the doctrine that a failure to show such fact was fatal,®" yet it is a general rule that though a caption omits to show jurisdic- tion it will be sufficient if it appears from other parts of the indictment was found by a grand jury at a regular term of the " City Court of Selma" it was held not to be a valid objection that in the cap- tion the words "City Court" only were used. Harrison v. State, 55 Ala. 239; Bonner v. State, 55 Ala. 242. Sufficiency of caption as to name or description of court. — See following cases as to sufficiency of caption in particular cases: California. — People v. Conner, 17 Cal. 354. Dakota. — ^Territory v. Pratt, 6 Dak. 483, 43 N. W. 711. Massaclinsetts. — Commonwealth V. Fisher, 7 Gray (Mass.), 492. Ne-w Jersey. — ^Berrian v. State, 22 N. J. L. 9; State v. Price, 11 N. J. L. 203. North Carolina. — State v. Jeff- reys, 1 Tayl. 126. Texas. — ^Mathews v. State, 44 Tex. 376; Giebel v. State, 28 Tex. App. 151, 12 S. W. 591. 'Wisconsin. — ^Mau-zau-man-ne-kah V. United States, 1 Pin. 124, 39 Am. Dee. 279. 47. Mathews v. State, 44 Tex. 376. See Hauck v. State, 1 Tex. App. 357, holding that even in such a ease a failure to designate the court m which the indictment was presented is not sufficient to warrant a reversal of judgment for the reason that it is a mere matter of form, and could have been cured by amendment if the objection had been pointed out at the proper time. 48. State v. Meinhart, 73 Mo. 562. 49. State v. Marion, 15 La. Ann. 495, citing State v. Kennedy, 8 Rob. (La.) 591; State v. Peterson, 2 La. Ann. 921; State v. Gomer, 6 La, Ann. 3n. 50. See preceding section. 179 161 Caption and Commencement. record tkat the indictment was returned to a court Laving juris- diction."^ So an indictment is not vitiated by an erroneous de- scription of the court in the caption where the record accompany- ing the indictment shows that the court in which it was found had jurisdiction.^^ And thonagh the caption give an incorrect; name to the court, yet since the caption forms no part of the in- dictment, an objection thereto on this ground will not be re- garded where it appears from the records that the indictment was returned to a court of whose existence judicial notice can be taken."* So it has been decided that the designation in the cap- tion of the court as " The District Court of United States," for the district of the territory, is at most a clerical or technical error, which does not vitiate the indictment."* Again, it has been de- cided that the omission of the word " court " in the caption of an indictment is immaterial, where the record shows the court into which the indictment was returned."" 51. State V. Blakely, 83 Mo. 359. See, also, Johnson v. Commonwealth, 12 Ky. Law Eep. 835, 15 S. W. 662. 52. United States v. Upham, 2 Mont. 170. The caption in this case described the court as " the United States District Court of the Terri- tory of Montana, for the Second Judi- cial District," and it was held that there was no "United States District Court " in the Territory of Montana. 53. State v. Daniels, 66 Mo. 192; Kirk V. State, 6 Mo. 469. 54. Jackson v. United States, 102 Fed. 473, 42 C. C. A. 452, wherein Judge Hawiet said : " We are clearly of the opinion that the use of the words ' of the United States ' at most could only be considered a cler- ical or technical error. In no sense can it be held that the use of the words is such an error as would viti- ate the indictment, or make all or any of the proceedings had there- under null and void. The district court for the district of Alaska is not, strictly speaking, a court of tue United States, and does not come within the purview of the acts of Congress which speak of ' courts of the United States' only. . . . But in a certain sense the district court for the district of Alaska is a United States court, and is often so designated. It was created by an act on Congress. It is not a State court." 55. Commonwealth v. Mullen, 13 Allen (Mass.), 551. The caption was as follows : " Commonwealth of Mas- sachusetts. Middlesex to wit. At the Superior begun and holden at Lowell, within and for the county of Middlesex, on the third Monday of October in the year of our Lord one thousand eight hundred and sixty- three." It appeared from the record of the Superior Court that the in- 180 Caption and Commencement. §§ 162, 163, 164: §' 162. Same subject — Amendment of caption. — ^A caption which is defective in. failing to show that it was returned to a court having jurisdictom may be subsequently amended by the court so as to show such fact. And it has been decided that an amendment of this character may be made at any time. So in an early cape in South Carolina it was held proper for the court to give leave after conviction to amend the caption so as to show that it was found at a special court.^' § 163. Names of judges. — In an early case in New Jersey it is said, " The books lay down the rule, and they are followed by the most approved precedents, that the names and style of office, of the persons constituting the court to which the indictment is presented, should be set out. The purpose is to show that they were competent to hold the court and had power to take the in- dictment." ^^ And in an early decision in Mississippi it was de- clared that the caption of an indictment should state the name of the judge presiding.®* It would seem, however, that where the court is sufficiently described or designated to identify it as the one to which the indictment was returned this would be sufficient and that the name of the judge or judges need not be given unless required by statute®* § 164. Time and place of holding court — Generally. Ordinarily the caption should contain a statement as to the time when and plaxse where the court was held at which the indictment was found.®" And it has been, held that where the statute desig- dictment was returned by the grand 279. See, also. State v. Folke, 2 La. jury into that court at a term begin- Ann. 745; People v. Willaon, 109 N. ning on the day named in the cap- Y. 345, 16 N. E. 540; Pennsylvania tion, and duly filed therein. v. Bell, Add. (Pa.) 155, 173. 56. State v. Williams, 2 McC. L. Erroneous description of a (S. C.) 301. jnstice in caption. — Objection on 57. State v. Zule, 10 N. J. L. 348. ground of, overruled. People v. Per EwiNG, J., citing 2 Hale C. C. Thurston, 2 Park. Cr. R. (N. T.) 49. 166; 1 Chit. Cr. Law, 331. 60. Alabama. — Goodloe v. State, 58. Thomas v. State, 5 How. 60 Ala. 93. (Miss.) 20. Maine. — See State v. Conley, 39 59. Tenorio v. Territory, 1 N. M. Me. 78. 181 § 165 Caption and Commencement. nates a place in the county in wihich court shall be held, the caption should show that it was held at such place, and that where it is not so stated, though the name of court and county are given, no presumption will be indulged in that it was held at the place designated. ^^ A strict compliance, however, with this requirement is not necessarily essential, it being generally regarded as suffi- cient if either the body of the indictment or the record shows when and where the court was held.*^ § 165. Same subject — ^As to terms of court. — Where the terms of court are fixed by public law and the caption states that an indictment was found at a specified term of such court it Mississippi. — Lusk v. State, 64 Miss. 845, 2 So. 256. New Hampshire. — State v. Gary, 36 N. H. 359. Sontb Carolina. — State v. Wil- liams, 2 MeCord L. 301. Tennessee. — Grandison v. State, 2 Humph. 451. The connty in Trhich the conrt is held should be shown by the cap- tion. Grandison v. State, 2 Humph. (Tenn.) 451; State v. Fields, Peck (Tenn.), 140; State v. Hunter, Peck (Tenn.), 166. The place in the connty where the court in which the indictment was found was held should be shown by the caption. Lusk v. State, 64 Miss. 845, 2 So. 256. Form of caption held suffi- cient in this respect. " Common- wealth of Massachusetts, Essex, to wit: At the Court of Common Pleas, begun and holden at Salem within and for the county of Essex." This form has been held to sufficiently show that the indictment was found at a court held in the Commonwealth of Massachusetts. Commonwealth v. Fisher, 7 Gray (Mass.) 492. See, also, State v. Conley, 39 Me. 78; Bur- gess V. Commonwealth, 2 Va. Cas. 483. The caption the "Cole Circuit Court " has been held to mean the circuit court of Cole county. State v. Weinhart, 73 Mo. 562. Presumption as to place aris- ing from statement in caption. — Where the caption to an indictment shows that on the first day of the term court was opened by one author- ized to open it, at a time and place prescribed by law, and adjourned by him from day to day till the appear- ance of the judge, it will be presumed that it was held the balance of the term at the same place. The caption in such a case sufficiently shows the place where the indictment was found. Smith v. State, 9 Humph. (Tenn.) 9. 61. Carpenter v. State, 4 How. (Miss.) 163, 34 Am. Dec. 116. 62. Kilgore v. State, 73 Ark. 280, 83 S. W. 925. See People v. Willson, 109 N. Y. 345, 16 N. E. 540; State v. Moore, 24 S. C. 150, 58 Am. Eep. 241. 182 Caption aio) Commencement. § 166 ■will be r^arded as sufficient.®* "Wlhere, however, the caption fails to show at what term of court an indictment was found, or imperfectly designates it, such omission or defect may be supplied by reference to parts of the record showing such facts,®* or to the body of the indictment in which it is correctly stated.®' And the statement in the caption in figures instead of words of the terna at which an indictment is found is not a ground for re- versal.®® As to the form of the caption in regard to indictments for offenses committed before the term, it is said that the caption may be general and the time of finding the bill be properly stated as of the term.®^ And in the case of an indictment for an offense committed after the commencement of the term, it should appear from the caption the time when the term was begun and holden and that it was continued by adjournment to a day named, being after the time of the alleged offense.®* § 166. Same subject — Reference to first day in stating term. — 'An indictment purporting in the caption to have been found at a court holden on a certain day, which is the first day of the term, is good, although in fact found on a subsequent day of the same term.®® And am indictment was held not to be vitiated by the 63. State v. Gary, 36 N. H. 359. where that fact is shown by the back See, also. State v. Wentworth, 37 K. of the instrument. Nixon v. State, H. 196. 121 Ga. 144, 48 S. E. 196, or appears GiTxng the day on -whicli an from other parts of the record. State indictment -was found has been v. Granville, 34 La. Ann. 1088 held to sufficiently state the term of 66. Johnson v. State, 29 N. u. L. court. People v. Beatty, 14 Cal. 566. 453. See, also, Barnes v. State, 5 64. Kirk v. State, 6 Mo. 469; Yerg. (Tenn.) 186. United States v. Clark, 125 Fed. 92. 67. Commonwealth v. Gee, 6 Cush. 65. State v. Haddock, 2 Hawks (Mass.) 174. See State v. Went- (N. C.) 461, holding that it was suffi- worth, 37 N. H. 196. cient where the term was described 68. Commonwealth v. Gee, 6 Cosh, in the caption as "Fall Term 1822" (Mass.) 174. See Commonwealth v. and in the body of the indictment the Stone, 3 Gray (Mass.), 453. time was stated as "on the 1st day 69. Commonwealth v. Hamilton, of August, in the present year." 15 Gray (Mass.), 480. See, also. An indictment need not show Commonwealth v. Colton, 11 Gray «m its face the term when found (Mass.), 1. 183 §1 167, 168, 169 Caption and Commencement. fact that it purported to liave been found at the term begun and bolden on the first Monday in July of a court which, by law waa required to begin and hold its term on the first Monday of every monith, where it appeared that the first Monday of July was the fourth.^" § 167. Name of offense. — 'It is not necessary to name or de- scribe the offense in the caption of an indictment,''^ and if the name is stated or the offense described therein, and such state- ment or description is in conflict with that given in the indict- ment, the latter will control.'''' § 168. Name of defendant. — In an early case in Indiana it is decided that if th© name of the defemdan,t appear in the body of the indictment, the omission to name him, in the title is a defect which cannot tend to prejudice his rights upon the meritsJ^ But in a more recent case in New Jersey it is decided that the name of the defendant need not appear in the caption to an indict- ment.''* The question as to the necessity of a sta,t€m,ent of the name may also, as in the case of other formal matters, be subject to statutory provision. In this connection it has been decided in Iowa that it is not a valid objection to an indictment that on the face of it there is no title to the action and that the names of the parties are not set forth in such title as prescribed by the form given in the code.''® § 169. Grand jury — Showing as to county. — The caption should ishow that the grand jury were of the county where the indictment was taken,''^ and where the offense is alleged to have 70. Commonwealth v. Chamber- 1 Ida. 273, holding that a failure to lain, 107 Mass. 209. state the title to the action in an in- 71. Williams v. State, 47 Ark. 230, dictment is not fatal, as defendant's 1 S. W. 149. rights are not thereby prejudiced. 72. Howard v. State, 67 Ind. 401. 75. State v. Mclntire, 57 Iowa, 73. Dukes v. State, 11 Ind. 557, 71 264, 13 N. W. 286, construing § 4297 Am. Dec. 370. of Iowa Code. 74. State v. Parks, 61 N. J. L. 438, 76. Woodsides v. State, 2 How. 39 Atl. 1023. See People v. Walters, (Miss.) 655; Tipton v. State, Peck 184 Caption and Commencement, § 169 been committedj''^ and it is declared that -where this is not showm it will be presumed that the court has proceeded without author- ity. ''* But it is not necessary to aver that the jury was legally selected from a particular county, such fact being sufSxaently shown by the statement that the grand jury " were impaneled, sworn and charged to inquire within and for the body of" a specified countyJ* (Tenn.), 308. See Stevens v. State, 76 Ga. 96, holding that the county for which the grand jurors were drawn and served was sufficiently shown by the heading, " Georgia, Lib- erty Comity." As to sofficiency of caption in particular eases in showing as to county, see the following: Howell v. State, 4 Ind. App. 148, 30 N. E. 714, holding it to be sufficiently shown where the indictment began, " State of Indiana, Morgan County, ss.: In the Morgan Circuit Court, February Term, 189," and recited that "the grand jury of Morgan County upon their oaths do present," and there was a recital in the record that the indictment was returned "by the grand jury of Morgan County, Indi- ana, into open court.'' Jeffries v. Commonwealth, 12 Allen (Mass.), 145, holding it sufficient where the caption contained the words " Com- monwealth of Massachusetts, Suffolk, to wit," and stated, after giving the name of the court, that the court was to be held in Boston on a specified day and there was a recital in the indictment that " the jurors of the Commonwealth of Massachusetts, on their oath present." Conunonwealth v. Edwards, 4 Gray (Mass.), 1; Com- monwealth V. Johnson, Thach. Cr. Cas. (Mass.) 284; Byrd v. State, 1 How. (Miss.) 163, holding it suffi- cient, where the caption contained the recital, " The grand jurors of the State of Mississippi, impanelled and sworn in and for the county of War- ren," etc. People v. Rockhill, 74 Hun (N. Y.), 241, 26 N. Y. Supp. 222, 55 N. Y. St. E. 681. 77. Carpenter v. State, 4 How. (Miss.), 163, 34 Am. Dee. 116. 78. Carpenter v. State, 4 How. (Miss.) 163, 34 Am. Dec. 116. In this case it was said : " Objections of a merely technical character may sometimes impede, instead of advanc- ing, the cause of justice; and al- though courts of justice have very properly manifested a disposition to relax the rigor of ancient forms, where no injury could result to the accused, yet there must be some limit beyond which judicial innovations should not be permitted to advance. . . . It appears to me that it would be extending this principle too far to hold that the description of the grand jury in the record before us necessarily evidences the fact that they were selected from the county where the prisoner was charged with the offense." Per Smith, J. 79. Leonardo v. Territory, 1 N. M. 291; Keith v. Territory, 8 Okla. 307, 57 Pae. 834. See Fizeil v. State, 25 Wis. 364. 185 f § lYO, 171 Caption and Commencement. § 170. Grand jury — :As to qualifications generally — " Good and lawful men." — .Althougji it is decided in an early case in Tennessee tha,t a caption wihioh does not state that a grand jury of good and lawful men, was enipanelled is defective, and that a judgment on the indictment must in such a case be arrested,*" yet it may be stated that the authorities support the conclusion that strict accuracy is not required in averring in the caption the qualifications of the grand jurors or that they are good and lawful men, where the defendant has the facilities of ascertaining their qualifications.^* And where it is stated in the caption of the in- dictment that the grand jurors are " good and lawful men " this is held to be sufficient without alleging that they are householders or freeholders,^^ as all the qualifications imposed by law are in- cluded in these words.®* § 171. Same subject — ^That grand jury summoned and re- turned. — It is not necessary that it should be stated in the caption, in express terms, tha.t the grand jurors were summoned and re^ 80. Grandison v. State, 2 Humph. (Tenn.) 451. Compare Territory v. Pratt, 6 Dak. 483, 43 N. W. 711, holding that the objection that it does not ap- pear that the jurors were impanelled, charged or sworn, cannot be raised for the first time after conviction. 81. Cornelius v. State, 12 Ind. 782. See Weinzorpflin v. State, 7 Blackf. (Ind.) 186; State v. Yancy, 1 Treadw. Const. (S. C.) 237; Turner V. State, 9 Humph. (Tenn.) 119; State V. McCarty, 2 Chand. (Wis.) 199. 82. Bonds v. State, Mart. & Yerg. (Tenn.) 143, 17 Am. Dee. 795, wherein the court said that this statement comprehends every neces- sary qua,lification in such case pre- sented by law. And it was also said that " It might be further observed that as this indictment was found in a superior court, the statement of " good and lawful men " does not even seem to be absolutely essential." Citing 1 Chitty C. L. 333; 2 Hawk., ch. 25, § 126. Presiunption as to qnalifica- tions. — ^The statement in the record that the grand jurors were " good and lawful men, householders " of the proper county, creates a presumption that they possessed all the statutory qualifications. Willey v. State, 46 Ind. 363. 83. Beauchamp v. State, 6 Blackf. (Ind.) 299; Jerry v. State, 1 Blackf. (Ind.) 395; State v. Price, 11 N. J. L. 203; State v. Glasgow, Cam. & N. (N. C.) 38; Cornwell v. Tennessee, Mart. & Y. (Tenn.) 147; Bonds v. Tennessee, Mart. & Y. (Tenn.) 143. 186 Caption and Commencement. §§ 172, 173 turned as such.®* The caption will be sufficient in this respect ■where it discloses enough to authorize the inference that the in- dictment was returned by a lawfully organized grand jury for the term at which it was presented.*' § 172. Same subject — That grand jurors were sworn. — The caption need not show that the grand jury were sworn.*® " If the caption omit to state that the grand jury in a superior court was sworn, it will be presumed that they were sworn ; at least the recital in the indictment that the grand jurors were elected, empanelled, sworn and charged will be sufficient." *^ In a case in New York it is decided that the omission of the words " then and there " after the statement in the caption that the grand jury were sworn and charged is fatal and that a motion in arrest of judgfnent should be granted.** § 173. Same subject — ^As to number of grand jurors. — It is not necessary to state in the caption the number of grand jurors, it being held sufficient to state that the grand jury im- panelled and sworn in and for the body of the county aforesaid 84. State v. Jones, 9 N. J. L. 357, § 472; Powers v. State, 87 Ind. 144; 17 Am. Dee. 483, wherein the court Heath v. State, 101 Ind. 512. said that the answer to an exception 86. State v. Long, 1 Humph, on this ground "is given by most, (Tenn.) 386, affirming McClure v. if not all, the precedents of captions State, 1 Yerg. (Tenn.) 206, and fol- to be found in the books." Citing 2 lowed in Melton v. State, 3 Humph. Hale P. C. 165; Foster, 3, Faulkner's (Tenn.) 389. See, also. State v. Case, 1 Saund. 249; Arch. Cr. PI. 6; Kimbrough, 2 Dev. (N. C.) 431; Anonymous, 3 SaUc. 191; State v. King v. Morgan, 1 Raymond, 710. Gustin, 5 N. J. L. 746. But see State v. Fields, Peck See, also. State v. Price, 11 N. J. (Tenn.) 140. L. 203, citing above authorities; 87. McClure v. State, 1 Yerg. Berrian v. State, 22 N. J. L. 9, 29, (Tenn.) 206. Per Catbon, J., cited wherein it is declared that " It is not and followed in Melton v. State, 3 usual to set forth that the jurors Humph. (Tenn.) 389, 394. were summoned, nor by whom, nor 88. People v. Guernsey, 3 Johns, even that they were empanelled." Cas. (N. Y.) 265, citing King v. Tur- 85. Epps V. State, 102 Ind. 539, 1 neth, 1 Mod. 26, 2 Heb. 583, 1 Vent. N. E. 491 citing Moore Crim. Law, 60; King v. Morris, 2 Stra. 901. 187 § 174 Caption and Commencement. present -(ihe following bill of indictment.'' But -where the caption shows that the grand jury was composed of a number less than is necessary by law to act, an indictment found by such grand jury will be bad.s" § 174. Same subject — 'As to names of grand jurors. — Although it is held in the earlier cases, that the caption should show the jurors by whom ani indictment was found,* ^ yet as a general rule the later cases do not hold this to be one of the essentials to the sufficiency of the caption,*^ though it has been declared that if they do not appear in the caption they should appear in the record.^* So the fact that the name of a grand juror in the caption does not correspond with his name in the panel is not a fatal objection to an indictment,** if it is in reality the same person.*® Such a defect is amendable.** 89. Young V. State. 6 Ohio, 435. It was said in this case that when the record says " grand jury " it is presumed to be a legal grand jury. 90. Fitzgerald v. State, 4 Wis. 395, holding that where the caption of an indictment represents that it was found by " the grand jurors of the State of Wisconsin, to wit, twelve good and lawful men," the indictment is had and a, conviction thereon will be set aside. 91. State V. Williams, 2 McC. L. (S. C.) 301. See, also, Thomas v. State, 5 How. (Miss.) 20. 92. People v. Willson, 109 N. Y. 345, 16 N. E. 540. In the body of the indictnieiit it is unnecessary to state the names of the jurors by whom it was found. People v. Bennett, 37 N. Y. 117; People v. Haynes, 55 Barb. (N. Y.) 450. See State v. Murphy, 9 Port. (Ala.) 487. 93. In Mahan v. State, 10 Ohio, 232, it is held that the caption should state the names of the jurors by whom an indictment was found or that at least the names should appear in some part of the record, and that if they do not so appear a writ of error will undoubtedly lie. See § 137 herein. 94. State v. Dayton, 23 N. J. L. 49, 53 Am. Dec. 270. 95. State v. Norton, 23 N. J. L. 33. 96. State v. Norton, 23 N. J. L. 33, wherein the court said : " Ad- mitting the names to be substantially variant, when there is no pretence that the persons named in the panel and in the caption are really differ- ent, but the difficulty consists in the misprision of the clerk in preparing the caption, the court will not per- mit the indictment upon that ground to be quashed. The caption is amend- able." Per the Chief Justice. 188 Caption and Commencement. § 175 § 1Y5. Reference to caption to cure defects in indictment. — The caption of an indictment, showing when, where and by whom the court was held, and who were elected and sworn as grand jurors, may be looked to, in aid of the indictment as a part of the record and need not be repeated in the body of the indiat- ment.®^ So the caption may properly be referred to im case of a defect in the commencement of the indictment, as showing in what court, at what term, by what grand jury, and in what county the presentment was made.®* And where the county and court have been properly described in the title of an indictment, it has been declared that it will operate to cure a defective description in the body.®' Ajid where it is alleged in an indictment that the crime was committed in a certain county but the state is not named, it has been held to be sufficient if the state is named in the qaption and upper marginal titla^ So in Massachusetts it has been decided that an indictment which purports by its caption to have been found at a court of common pleas for a specified county and charges an offense at a town named " in said county," alleges with sufficient certainty the place of the commission of the offense.* And likewise, where the indictment charges the commission of the offense as on a certain day " in the year aforesaid," and the year 97. Noles V. State, 24 Ala. 672. the title, indictments have been sus- To sliow jurisdiction. — ^Refer- tained without the name of the ence may be had to the caption of an county being stated in describing the indictment for the purpose of de- grand jury in the body of the instru- termining whether jurisdiction ex- ment." isted on the part of the inferior 1. Anderson v. State, 104 Ind. 467, court. Robinson v. Commonwealth, 4 N. E. 63. 88 Va. 900, 14 S. E. 627. 2. Commonwealth v. Edwards, 4 98. Gater v. State, 141 Ala. 10, Gray (Mass.), 1. The court said: 37 So. 692. " The name of the county being fully 99. State v. Buralli, 27 Nev. 41, set forth in the caption thus returned 71 Pae. 532, wherein Judge Talbot as attached to the indictment, a ref- said: "A grand jury in regular or- erence thereto in the indictment as ganization and attendance upon a ' in said county ' may properly be court is necessarily one within and had, to find the county where the of- fer the county where the court is in fense is alleged to have been corn- session, and, where the county and mitted." Per Dewey, J. See State court have been properly described in v. Bell, 3 Ired. L. (N. C.) 506. 189 § 176 Caption and Commencement. ia stated in the caption, it is decided that the time is sufficiently stated.^ § 176. Amendment of caption. — At coramon law the caption may be amended according to the truth.* And it is a general rule that the caption to an indictment or to an information may be amended, for the purpose of curing any error or defect therein.* So where the word " court " was omitted it was held proper to permit an amendment by the insertion of the omitted word.* And it is said that the caption of an indictment may be af- 3. State V. Paine, 1 Ind. 163. 4. State V. Society for Establish- ing Useful Manufactures, 42 N. J. h. 504, citing State v. Jones, 9 N. J. L. 357, 17 Am. Dec. 483, wherein it is held that the caption to an indict- ment may be amended after it has been removed to the Supreme Court by certiorari. 5. State V. Brennan, 2 S. D. 384, 50 N. W. 625, citing Bishop on Crim. Proced., §§ 661, 662, and also the following cases: Missoiiri. — State v. Bennett, 102 Mo. 356, 14 S. W. 865. Nevr HampshiTe. — State v. Jen- kins, 64 N. H. 375, 10 Atl. 699. Nexr Jersey. — State v. Jones, 9 N. J. L. 357. Pennsylvania. — Brown v. Com- monwealth, 78 Pa. St. 122. Vermont. — State v. Gilbert, 13 Vt. 647. Wisconsin. — Allen v. State, 5 Wis. 329. United States. — United States v. Thompson, 6 McLean, 56. See, also. Brown v. Commonwealth, 78 Pa. St. 122, wherein it was held proper to amend a caption to an in- dictment after trial, conviction and sentence, and the court declared that it would be a shame if it were not amendable. State v. Moore, 24 S. C. 150, 58 Am. Rep. 241; State v. Gil- bert, 13 Vt. 647; State v. Emmett, 23 Wis. 632. In State v. Moury, 21 R. I. 376, 382, 43 Atl. 871, it is said: "The caption is no part of the indictment proper, but is merely the ministerial act of the clerk or prosecuting officer. It is, therefore, amendable by refer- ence to the records of the court in which it was found. . . . The caption is merely a formal statement, which, though placed at the head of the indictment, is still of no higher nature than is an entry on the docket made in court by the clerk (1 Bish. Crim. Pro., § 151) ; and to hold that a mere clerical error therein is fatal to the indictment which follows it would be both senseless and absurd. Indeed it is not even necessary to amend the caption, as was held in a similar case in Massachusetts, where the court said it was sufficient if reference to the other records of the court showed the time of finding the indictment. Commonwealth v. Stone, 3 Gray (Mass.), 453." Per TiLUNQHAST, J.. 6. James v. State, 44 Tex. 314. 190 Caption ai^d Commencement. § 177 fixed by the clerk with, a view to the perfecting of the record.^ The court may permit such an amendment to be made at any time. So it has been decided that it may give leave after conviction to amend a caption so that it will show that it was found at a special court,® or that it was presented by the grand jury upon their oath.* So in an early English case after verdict of guilty on an indictment for assault, the return to the writ of certiorari which had been, issued at the instance of the defendant, was amended by inserting in the return of the caption the true time when, and the names of the justices before whom, the quarter sessions at whioh the indictment was found wasi holden, and the names of the jujors by whom it was found. ^'^ § 177. Commencement of indictment — Generally. — The com- mencement of an indictment is to be distinguished from the caption,^* which, as has already been stated, forms no part of the indictment.^* The commencement of an indictment is but a recital of certain preliminary facts, only necessary to be stated in order to render the instrument intelligible of itself, without having reference to the files and records of the court where it was found.-'* The commencement of an indictment may in some cases 7. People V. Myers, 2 Hun (N. 13. State v. Freeman, 21 Mo. 481. Y.), 6. Per Leonabd, J. 8. State V. Williams^ 2 McC. L. The commencement of an in- (S. C.) 301. dictment is as follows: "The 9. State V. Creight, 1 Brev. (S. jurors of the people of the State of C.) 169. , in and for the county of 10. King V. Darley, 4 East. 174. , upon their oaths present," 11. People V. Bennett, 37 N. Y. ete. People v. Bennett, 37 N. Y. 117. 117, 93 Am. Dee. 451, wherein it was In State v. Nixon, 18 Vt. 70, 46 declared that " the form of an in- Am. Dee. 135, the following com- dietment in many of our own states, meneement was held sufficient: and which form is derived from Eng- " The grand jurors for the people of land, is thus : ' The jurors of the peo- the State of Vermont, upon their pie of the State of , in and oath present." for the body of the county of , As to tie form of commence- upon their oath present,' etc. This ments generally it was said by Judge is the commencement and all that it Wilijams in the case just cited: need contain.'' Per Fxjlieeton, J. "The grand jurors in this State, as 12. See § 149 herein. well as in Great Britain, are to in- 191 § m Caption autd CoMMEiifCEMENT. be amended, for the purpose of curing an omission or defect tiherein.^* And it has been declared that if the caption sufficiently shows the facts which should ordinarily appear in the commence- ment of the indictment, it is sufficient, though the commencement 'be wholly omitted.^'' quire for all offenses In the county for which they are returned. 2 Hawk. P. C, ch. 25, p. 229. They are to pre- sent in behalf of and for the sover- eign power, which is considered as the prosecutor for all public of- fenses; and hence the style or lan- guage of the indictment is not uni- form. In England, the form is : ' The grand jurors for our Lord the King on their oaths present;' in New York, ' for the people,' etc. ; in Massachu- setts, 'for the Commonwealth.' In some cases this part of the indict- ment is used only to designate the jury, who present, — as ' The grand inquest of the United States for the district of Virginia;' 'The grand jur- ors of the United States in and for the body of the district of New York;' 'The grand jurors within and for the body of the county of,' etc.; and this latter is the form usually adopted in this State and in Connec- ticut. The better form, I think, is the one used in Georgia, found in 6 Peters, 528, 'The grand jurors sworn, chosen, and selected for the county of , in the name and behalf of the citizens of Georgia.' In this State, when we wish to designate the sov- ereign power, we usually say, Tie State of Vermont; but I apprehend it is as well to designate it by the term, The People. . . . We can- not, therefore, attach any importance to this objection to the indictment, considering it wholly immaterial whether the indictment commenced by saying, The grand jurors for the county, or for the State, or for the people of the State; and that either mode would be conformable to ap- proved forms." In State v. Brooks, 94 Mo. 121, 7 S. W. 24, it was held that the follow- ing commencement was sufficient, " The grand jury summoned from the body of Taney County, Missouri, duly empaneled," etc. The court said:' " While it would have been more for- mal if the indictment had read, ' The grand jury for the State of Missouri, summoned from the body of the county of Taney, duly empaneled,' etc., the omission to follow that form is not fatal, provided it sufficiently appears from the record that the in- dictment was preferred by a lawful grand jury in and to a court of com- p tent jurisdiction, and this much does fully appear from the record in this case." Per Nobton, J. Tbe statement of tbe name of the court in the commencement of an indictment has been declared to be useless if not surplusage. Bell v. Commonwealth, 8 Gratt. (Va.) 600. 14. State v. Moore, 1 Ind. 548, holding that where an indictment commenced, " The grand jurors im- paneled and sworn,'' etc., " upon their present," it was proper to permit it to be amended by insert- ing the word " oath." 15. State V. Freeman, 21 Mo. 481. 192 Caption aitd Commencement. §§ 178, 179 § 178. Effect of clerical or grammatical errors. — ^Mere clerical or grammatical errors in the commencement of an in- diotment "will not vitiate the instrument, unless they change a ■word or render the meaning obscure. So where an indictment commeaiced as follows : " The grand jurors within and the body of the county," it was held that the omission of the word " for " after the word " and " did not vitiate the indictment.^® § 179. Grand jury — Commencement should show county. — The commencement of an indictment should ordinarily show the county in which the grand jury was sworn and impanelled, that it may appear that there "was jurisdiction in that body to find the indictment ^^ But in a case in Oklahomia, where it was al- 16. State V. Brady, 14 Vt. 353. The court said: "It is said to be a rule applicable to indictments, that mere clerical and grammatical errors do not vitiate, unless they change a word, or render the meaning obscure. 1 Chit. Cr. L. 196. The omission of the word 'for' in the introductory part of this indictment has done neither. It may have rendered the preceding word ' and ' senseless and unmeaning, but can have no further effect. The grand jury within a county, where in regular organization and attendance upon the county court, are necessarily a grand jury both within and for the county.'' Per Rotce, J. See Brown v. State (Tex. Cr. App. 1903), 77 S. W. 12. 17. In State v. Kiger, 4 Ind. 621, it was held where an indictment was as follows, " State of Indiana, Dela- ware county, ss. In the Delaare Cir- cuit Court, September Term, 1851. The grand jurors for the State of In- -diana upon their oath present," etc., that it suflSciently appeared that the ^and jury sworn and impaneled at that term in Delaware county was meant. In Wise v. Kansas, 2 Kan. 419, 85 Am. Dec. 595, it was held that an indictment commencing " State of Kansas, Chase County, ss. : In the District Court of the 5th Ju- dicial District sitting in Chase County, April Term, A. D. 1863. The jurors of the Grand Jury of the State of Kansas duly drawn, empaneled, charged and sworn to inquire of of- fenses committed within the body of the County of Chase, and within the County of Marion, attached to said County of Chase for judicial pur- poses," su£5ciently showed that it was found by a grand jury of the county of Chase. This case was de- cided under § 95 of Code of Cr. Proc, providing that " the indictment is sufficient if it can be understood there- from, first, that the indictment was found by a grand jury of the county in which the court is held." The words "body of •the connty " are not necessary, and their omission could prejudice no one. The recital in this case was that the 193 § 180 Caption and Commencement. leged as error that the indictmen,t did not show that it "was pre- seated by a grand jury selected in and for a specified county, the court said : " There is no reason in this contention. It is not necessary that all preliminary steps of drawing, selecting and empanneling a grand jury shall appear in an indictment, nor would a statement in an indictment -that such steps had been taken be in any manner conclusive. The selecting and empanneling of the grand jury are matters that are done in court prior to the finding or presentation of any indictment, and such proceeding are re- corded in the journals of the court, and the records of the court is the proper place to look for such proceedings, rather than in the formal parts of an indictment. The reasons 'that at one time existed for requiring these matters to be set forth in the indictment has long since ceased to exist." ^® But though such a showing may be necessary in the commencement of an indictment, yet it has been decided that an omission or defect in this respect may be cured by amendment. So where the grand jurors were described in the indictment as " duly elected, empanneled, sworn, and charged to inquire into and true presentment make of all offenses com- mitted in the county of — ■ — , in said state, cognizable in the dis- trict court in and for the county of Titus and state aforesaid," it was held that the indictment was defective, but that the defect could have been cured by amendment.-^* § 180. Grand jury — Matters unnecessary to state. — It is unnecessary to state in an indictment the names of the jurors by whom it was found.^" Nor need the number of grand jurors be grand jury were sworn and charged Texas, the grand jurors of the State " inquiring in and for the county of of Texas, duly empanelled, charged, Dodge." Fizell v. State, 25 Wis. 364. and sworn to inquire of offenses com- 18. Jones v. Territory, 4 Okla. 45, mitted in the county of Montague, 51, 43 Pac. 107. Per Buefobd, J. upon their oath present in the Dia- ls. State V. Hilton, 41 Tex. 565. trict Court for said county." In Davis v. State, 6 Tex. App. 133, 20. State v. Murphy, 9 Port, this case was distinguished from the (Ala.) 487; Commonwealth v. John- case at bar, and it was held that the eon, Thach. Cr. Cas. (Mass.) 284; following showed the county for which People v. Bennett, 37 N. Y. 117, 93 the grand jury acted: "In the name Am. Dec. 551; People v. Haynes, 65 and by the authority of the State of Barb. (N. Y.) 450. 194 Caption and Commencement. § 180 stated.^^ And it need not be stated that the grand jury was legally called before the court or where the session of the court or grand jury was held.*^ And it has been decided that the indictment need not allege the organization of the grand jury and the regu- larity of the proceedings after the jury were impanelled.^^ Again, it has been decided that where there is a recital in an indictment that the grand jurors were " empannelled, sworn and charged to inquire in and for the body of a specified county, time and place need not be laid tn show when and where they were so swom.^* It has also been held sufficient to use the word " jurors " only, instead of " grand jurors " in the commencement of an indict- ment^'' The names of the grand jnrors are a part of the caption and need not be introduced in an indictment. State V. Murphy, 9 Port. (Ala.) 487. 21. Young V. State, 6 Ohio, 485, holding that it sufficiently appears that an indictment was returned by the number of grand jurors required by law where the record states that the " grand jury, impanneled and sworn, in and for the body of the county aforesaid, presented the fol- lowing bill of indictment against" the defendant named. 22. Harrington v. State, 36 Ala. 236. 23. United States v. Laur, 26 Fed. Cas. No. 15,579, 2 Lowell, 115. The court declared that " The signature of the foreman vouches for the regu- larity of the proceedings after the jury are empanelled, and the records of the court show the venire, etc." Per Lowell, J. At common lav it should be stated in the commencement of an in- dictment that the grand jurors pre- senting the same were sworn as such. Chevarrio v. State, 17 Tex. App. 390, citing 1 Bish. Crim. Proc., § 666; Whart. Cr. PI. & Pr., § 95. In Texas it is not necessary under the code that there should be a statement that the grand jurors were sworn. Chevarrio v. State, 17 Tex. App. 390. 24. Vaughn v. State, 4 Mo. 530. See, also, Fizell v. State, 25 Wis. 364, holding that an indictment suf- ficiently shows where the grand jury were sworn though the words " then and there " are omitted, where, after naming the State, county, court, pre- siding judge and term, it states that " the jurors of the grand jury," etc., " duly summoned, impaneled, tried, sworn and charged," etc. 25. State v. Pearce, 14 Fla. 153, holding that it was sufficient where an indictment commenced with the words " jurors of the State of Flor- ida," instead of " grand jurors," where it appeared from other entries in the record that the indictment was found by the grand jury. See, also. United States v. Williams, 28 Fed. Cas. No. 16,707, 1 Cliff. 5, holding it sufficient where the jury was de- 195 § 181 Caption and Commencement. § 181. Showing as to presentment — Use of words " on their oath." — It should appear that the indictment was presented on the oaths of the grand jury, in the absence of a statute to the con- trary.26 But though the word " present " is omitted in the oom- scribed " the jurors for the said United States." 26. Illinois.— Curtis v. People, 1 111. 256, holding that under the Criminal Code as to time of making objections to want of form, an objec- tion on this ground should be made before the trial. Maine.— State v. McAllister, 26 Me. 374. Missouri. — State v. Sanders, 158 Mo. 610, 59 S. W. 993; State v. Furgeson, 152 Mo. 92, 53 S. W. 427. Texas. — Vanvickle v. State, 22 Tex. App. 625, 2 S. W. 642, wherein the objection was raised that the in- dictment did not contain such a statement. The court said : " It will be noticed that there is a hiatus, or, more properly speaking, a total want of connection between the allegations with reference to the impaneling of the grand jury, and the facts stated with regard to the subsequent acts of John Vanvickle. The usual, ordi- nary words of accusation, to wit, ' on their oaths present,' it will be seen, are entirely omitted, and no similar or equivalent words are used or sub- stituted. In short, whilst this paper shows a grand jury for Rains county were impaneled to inquire into crimes committed in said county, and whilst it shows that John Vanvickle did cer- tain acts therein set out, it is not shown, nor is it anywhere alleged, that the said grand jury charge, aver, allege or accuse the said Vanvickle with doing those acts. There is no connection between the impaneling of the grand jury and the statement made with reference to the acts of Vanvickle afterwards set out. It is certainly not stated that the grand jury charged or accused him with the commission of those acts and deeds. Then who did? We are no where informed." Per White, J. The in- dictment in this case commenced as follows: "In the name and by the authority of the State of Texas: The grand jurors of the State of Texas, charged, impaneled and sworn to dili- gently inquire into and true present- ment make of all crimes and of- fenses against the law committed within the body of the county of Rains and State of Texas — that one John Vanvickle, late of the county of Rains and State of Texas, with force and arms in the county of Rains," etc. Proceeding then to set out cer- tain facts going to constitute the al- leged offense. England. — Rex v. Wilkes, 4 Burr. 2563. Sufficiency of recital as to oath, — Where an indictment recites that the grand jury were " duly elected, tried, impaneled, sworn, and charged," this is sufficient to author- ize the presumption that the proper oath was administered. Thomason v. State, 2 Tex. App. 550. At conunon laiv it was essential that an indictment should allege upon its face that it was presented upon the oaths or affirmations of the 196 Caption and Commencement. § 181 menceimenit of the indictment, it is held to be sufficient where it appears from the record that it was present©d.^^ And the use of the words " on their oaths present " in the commencement is not absolutely essential where it appears from the caption or record that the indictment was so presented.^* And where the word grand jurors. Vanvickle v. State, 22 Tex. App. 625, 2 S. W. 642; Chevarrio V. State, 17 Tex. App. 390, citing 1 Bish. Crim. Proc, § 666; Whart. Cr. PI. & Pr., § 95. In Texas it is not necessary un- der the code to state that the present- ment was made on the oaths or af- firmations of the grand jury. Che- varrio V. State, 17 Tex. App. 390. An. indictment " upon their oaths," instead of upon their oath, is sufficient. Commonwealth v. Sholes, 13 Allen (Mass.), 554; State v. Day- ton, 23 N. J. L. 49, 53 Am. Dec. 270. See Commonwealth v. Johnson, Thach. Cr. Cas. (Mass.) 284, holding that the words " on their oath " are equivalent to the words " on their several oaths." Where an indictment pur- ports to be on the affirmations of the grand jurors, it has been de- cided that it must appear that they were persons entitled by law to take affirmations in lieu of oaths, or the indictment will be fatally defective. State V. Harris, 7 N. J. L. 361. The court, however, said in this case that " We are not disposed to favor excep- tions of this kind, which have noth- ing to do with the justiee of the case ; and, were the question now to arise for the first time, we should hesitate before we gave it our sanction." This case cited and followed State v. Sharp, cited by ICinset, C. J., in State v. Rockafellow, 6 N. J. L. 341. But in a case in Massachusetts it is decided that an indictment purport- ing to be presented by the grand jur- ors " upon their oath and affirma- tion " need not state the reasons why any of the jurors affirmed instead of being sworn. Commonwealth v. Fisher, 7 Gray (Mass.), 492. 27. State v. Freeman, 21 Mo. 481, so holding where the indictment com- menced " The grand jury for the State of Missouri, empaneled, charged and sworn, to inquire within and for the body of the county of Hickory, upon their oath , that Silas M. Freeman, late," etc. 28. Potsdamer v. State, 17 T'la. 895. wherein it is decided that when the record shows that the members of the grand jury were duly sworn as such, and the caption of the in- dictment states that the jurors were " duly chosen, empaneled and sworn diligently to inquire, and true pre- sentment make, in and for the body of the county," etc., " do present," etc., this is a sufficient statement that the presentment is " upon their oath." See Byam v. State, 17 Wis. 145. It has been held sufficient where it is stated that the jurors " impaneled, sworn and charged " make the presentment. The court said in this case : " The utmost ac- curacy of pleading and strictest ad- 197 § 18» Caption and Commencement. " oath " is omitted in the clause " upon their oath present " it is proper to permit an amendment by inserting the word " oath." ^* § 182. Necessity of averment as to grand jury in each count. — Where the statement in the commencement of an indictment contains a sufficient showing as to the grand jury, subsequent counts need not repeat such statement where there is a sufficient reference thereto.*" And in an early case in Virginia it is de- cided that if in a bill of indictment with three counts, in tihe third count it is omitted to be stated that the grand jury " on their oath " present, the first two counts being regular in that respect, the objection is obviated by the fact that the record states, that the grand jury were sworn in open court.* ^ But in Missouri it has been decided that in each count of an indictment there should be a recital showing that it was found by the grand jurj.*^ herenee to form might possibly re- quire the addition of the words 'upon their oaths,' but this would be but repetition. When the count con- tains other equivalent expressions, it cannot be that the omission is fatal. It is at most but a matter of induce- ment, and not of the substance of the accusation. The jurors returned that being impaneled, sworn and charged, they made the presentment. This was a presentment on oath. The jur- ors so understood it, and so must we." Per Dixon, C. J. 29. State v. Moore, 1 Ind. 548. 30. State v. Vincent, 91 Mo. 662, 4 S. W. 430, wherein it was held that a recital in the first count of an in- dictment that " the grand jurors of the State of Missouri, within and lor the body of the city of St. Louis, now here in court duly empaneled, sworn and charged, upon their oaths, pre- sent," was sufficiently referred to by a recital in another count that " the grand jurors aforesaid, upon their oath aforesaid." See Palmer v. Peo- ple, 138 111. 356, 28 N. E. 130. InsnfBcient reference. — In State V. McAllister, 26 Me. 374, it was de- cided where the first count in an in- dictment alleged that it was pre- sented upon the oaths of the grand jurors that the third count, by the allegation that " the jurors afore- said for the State aforesaid do fur- ther present " did not sufSciently re- fer to the first count so that the for- mer would appear to be presented per sacramentum suum. 31. Huffman v. Commonwealth, 6 Hand. (Va.) 685. 32. State v. Wagner, 118 Mo. 626, 24 S. W. 219, wherein Judge Shee- WOOD said that " to each count must be prefixed a statement that the jury super sacramentum suum uUerius presentant, and without such com- mencement the count will be bad. The following authorities fully sup- port these positions: 1 Chitty on Criminal Law, 175, 249; 1 Bishop on 198 Caption and Commencement. § 183 § 183. Showing that prosecution is in the name and by the authority of the state. — It is not necessary that tlie commence- ment of an indictment should state that the grand jury accuse the defendant " in the name and by the authority of the state " ■where there is no particular form of' indictment prescribed by statute which should be strictly followed and which so provides.^* And under these conditions it is not essential that the commence- ment of an indictment should contain an express or formal aver- ment to this effect where this fact is shown by other parts of the indictment or the caption,^* or by the record.^^ And where the name of the state has been omitted it has been held sufficient where the name of the county is inserted in the margin or body of the indictment.^® It is, however, generally regarded as essential that it should appear either from the indictment or the record that the prosecution is so conducted.*'^ Criminal Procedure (3 ed.), §§ 132, 426, 429; State v. McAllister, 26 Me. 374; Malone's Criminal Briefs, 34, and cases cited; State v. Langley, 10 Ind. 482; State v. Phelps, 65 N. C. 450; Wharton Cr. Pr. & Prac. (9 ed.), § 95." as. Holt V. State, 47 Ark. 196, 1 S. W. 61. See Allen v. Common- wealth, 2 Bibb (Ky.), 210. In State v. Devine, 6 Wash. 587, 34 Pac. 154, it was held in the case of an information entitled " State of Washington against " the defendants, that it sufficiently appeared that the prosecution was in the name of the State. 34. State v. Kerr, 3 N. D. 523, 58 N. W. 27, holding that it sufficiently appeared that the prosecution was so carried on where an indictment was entitled State of North Dakota v. A. B., and showed on its face that it was presented by "the grand jury of the State of North Dakota in and for the county of Griggs." 35. Savage v. State, 18 Fla. 909; Crutz V. State, 4 Ind. 385; State v. Thompson, 4 S. D. 95, 55 N. W. 725. A formal statement in an in- dictment that it was found by author- ity of the State is not necessary, it being sufficient if it appears in the record that the prosecution is in the name of the State. Greesou v. State, 5 How. (Miss.) 33; State v. Johnson, Walk. (Miss.) 395. It is enough that the prosecution is conducted by the proper law offi- cer, acting under the authority and conducting the prosecution in the name of the government. Drummond V. Republic, 2 Tex. 157. Per Whee- liEE, J. 36. State v. Lane, 26 N. C. 113. 37. Savage v. State, 18 Fla. 909 holding it sufficient if the record shows that the prosecution was con- ducted in the name and by the au- thority of the State. 199 § 184 Caption and Commencement. § 184. Same subject —Effect of constitutional or statutory provisions. — ^Wlhetre it is provided by statute that an. indiotment shall commeince " in the aame and by the authority of the people of the state," a compliance therewith is es- sential and an indictment which does not so commence is bad.** So in Texas it has been decided that, under the constitutional provision that an indictment shall begin " In the name and by the authority of the state of Texas," it is a good objection to an indiotment that it does not so commence.*® But the general rule that it is not essential to the validity of an indictment that the commencement shall contain an express averment that the prosecution is in the name and by the au- thority of the state or commonwealth and that it is sufficient if the record, caption, or other parts of the indictment show this fact,*" is not altered by a constitutional provision " that all prosecutions shall be carried on in the name and by the au- thority of the state or commonwealth.*^ So in a case in 38. Whitesides v. People, 1 111. 21. The printing of an advertise- ment or business card at tbe top of an indictment does not len- der invalid an indictment which is by law required to commence. " In the name and by the authority of the State," and which does so commence alter the business card, as such card is no part of the indictment. West V. State, 6 Tex. App. 485, citing Winn V. State, 5 Tex. App. 621. 39. Brown v. State, 46 Tex. Cr. E. 572, 81 S. W. 718, holding that an indictment was fatally defective which commenced " In the name and the authority of the State of Texas," the word " by " being omitted. See Weaver v. State (Tex. Cr. App. 1903), 76 S. W. 564, wherein the omission of the word " the " before the word " authority " was held to be no ground of objection. 40. See preceding section. 41. Allen v. Commonwealth, 2 Bibb. (Ky.) 210; State v. Thompson, 4 S. D. 95, 55 N. W. 725. Sufficiency of sho-ning. — An in- dictment alleging the presentment to be made " in behalf of said State of Iowa," and the caption to which was as follows : " The State of Iowa, Muscatine County," was held to show sufficiently that the prosecution was conducted " in the name, and by the authority of " the State of Iowa, as provided by the Constitution, Art. 5, § 6. Wrocklege v. State, 1 Iowa, 167. See State v. Thompson, 4 S. D. 95, 55 N. W. 725. And a constitutional provision that " The style of all pro- cesses shall be. The State of South Carolina," and that all prosecutions shall be carried on in the name and by the authority of the State of South Carolina, and conclude 200 Caption and Commencement. § 185 Louisiana it was said in. this connection : " The expres- sions which it is contended should be used in the indictment, occur in the constitutions of seyenal states of the Union, and the point now presented has been so frequently decided in those states that it can scarcely be considered an open question. It has been repeatedly held to be sufficient compliance with the consti- tutional requisition, that the prosecution should appear to be conducted in the name of the state, and that a formal averment that it was found by the authority of the state was not essential to the validity of the indictment." *^ And where it is provided by statute that the indictment shall state in the commencement that " in the name and behalf of the citizens " of the state the grand jurors charge and accuse one of a crime, an omission to state such fact cannot be taken advantage of after the rendition of the verdict, where it is also provided that by statute that all exceptions which go merely to the form shall be taken ad- vantage of before trial.*^ § 185. As to the offense. — In Minnesota it has been decided that neither a misnomer of the crime nor the omission to give it any name in the commencement of an indictment, will afFect the validity of the indictment.** " against the peace and dignity of the fering a bribe to a juror,' or, strictly same," was held to be sufficiently speaking, causing a bribe to be of- complied with where an indictment fered to a, juror. In the commence- commenced " South Carolina " and ment of the indictment the crime is concluded against the peace and dig- designated as ' bribery of a judicial nity of the " said State." State v. ofl&cer.' This discrepancy is the first Anthony, 1 McC. L. (S. C.) 285. objection to the indictment urged by 42. State v. Russell, 2 La. Ann. *^^ defendant. An error in designat- 604. Per King, J. See State v. Val- '"^ the name of the crime in the com- sin, 47 La. Ann. 115, 16 So. 768. mencement of the indictment is an irregularity only. The charging part 43. Home v. State, 37 Ga. 80, 92 of the indictment must be alone con- Am. Deo. 49. sidered in determining whether the 44. State v. Howard, 66 Minn. 309, indictment charges a, public offense. 68 N. W. 1096, 61 Am. St. R. 403, If it states facts showing the com- 34 L. R. A. 178. Judge Stuaet said mission of a crime by the defendant, in this case : " The crime attempted the law determines its name and na- to be charged in the indictment is 'of- ture, and neither a misnomer of the 201 § 186 Caption and Commencement. § 186. Defects cured by reference to caption or other parts of indictment. — The omission of the name of the state in the com- mencement after the words " the grand jurors for the state of " is not a fatal defect where by reference to the caption or to other parts of the indictment it is clear that the prosecution was in the names of the state.*^ And it has been decided that an indictment is good which purports to be found by " the grand jurors for the said state, sworn and charged to inquire for the said county " when the names of the state and proper county are stated in the margin.*® And where it was alleged in the commencement of an indictment that " the grand jurors for the state of Alabama upon their oaths present " and the name of the proper county was stated in the caption it was held that the proceedings were sufficiently certain, although it was not averred in the indictment that such grand jurors were selected, empanelled, sworn and charged to in- quire for the body of the county. *'' crime nor the omission to give it a name affects the validity of the in- dictment." Citing State v. Hinckley, 4 Minn. 261 (345) ; State v. Garvey, 11 Minn. 95 (154); State v. Coon, 18 Minn. 464 (518) ; State v. Munch, 22 Minn. 67. 45. State v. England, 19 Mo. 386. 46. Lawson v. State, 20 Ala. 65. 47. Morgan v. State, 19 Ala. 556. 302 Body of Indictment Genekallt. § 187 CHAPTER VIII. Body of Indictment Geneeaixy. Section 187. Construction of indictment generally. 188. Use of words which refer back. 189. Same subject; pronouns. 190. Words to be construed according to usual meaning. 191. Where technical words are used. 192. Indictment must be in English language. 193. Bad handwriting does not necessarily vitiate. 194. Stating dates; use of figures. 195. Use of abbreviations and Latin words. 196. Use of signs. 197. Requisites and sufficiency of indictment generally. 198. Following precedent or statute. 199. Strict adherence to form; early English rule; not generally followed now. 200. Rule generally as to defects and infirmities. 201. Use of ungrammatical language. 202. Mistakes which are merely clerical. 203. Use of wrong pronouns. 204. Errors in spelling. 205. Same subject continued; illustrations. 206. Same subject; contraiy view. 207. Eifect of omissions generally. 208. Effect of omissions; where fatal. 209. Same subject continued; illustrations. 210. Effect of erasures or alterations. 211. Effect of interlineations. 212. Fatal defect in charging offense; alteration or interlineation; effect of plea or verdict. § 187. Construction of indictment generally. — Thougli it is said that in giving a construction to an indictment the obvious purpose of the pleader should have influence in the collocation of the sentences/ yet indictments are also subject to the applica- tion of the rule fortius contra proferentem, which rule is said to apply more strongly in criminal than in civil cases.^ And where 1. State V. Beasom, 40 N. H. 367. S. W. 399; Commonwealth v. T. J. 2. Commonwealth v. The G. W. Megibben Co., 19 Ky. Law R. 291, 40 Taylor Co., 19 Ky. Law R. 1334, 43 S. W. 694. 203 §§ 188, 189 Body of Indictment Geneeally. it is doubtful in which sense a person of conunon understanding would interpret an indictment, it has been declared that the in- dictment will be regarded as insufficient* So in charging the crime of larceny it should plainly appear on the face of the in- dictment that a larceny, and not a trespass, has been committed, and it has been decided that if the language used is capable of two interpretations', without doing violence to its terms, only one of which imports a charge of larceny, the indictment is bad.* § 188. Use of words which refer back, — ^If there is no neces- sary ambiguity in the construction of an indictment, it is said in an early English case that the court is bound not to create one by reading the indictment in such a way as tO' make it unintel- ligible. So where a word refers back it will be held to refer to the only antecedent which can make sense of the indictment, and not to a word which will render it unintelligible.® And in a case in 'New Hampshire it is decided that a term used may be referred to that antecedent which accords with the general tenor of the proceeding, whether it confoi-ms to strict grammatical rules or not.® So the word " said "has been held to refer to the next antecedent to it where there is no impediment to its being so referred arising from the sense and meaning of the whole in- dictment.'' The word " same " is, however, distinguished from the word " said " in this respect in that it always refers to the next antecedent* § 18i9. Same subject — Pronouns. — In the case of the use of 3. People V. Williams, 35 Cal. 671. 8. The relative "same" is said 4. People V. Williams, 35 Cal. 671. to always refer to the next antece- 5. King V. Wright, 1 Add. & El. dent and to thereby differ in this re- 434, 28 Eng. Com. Law, 214. spect from " said," which only refers 6. State V. Beasom, 40 N. H. 367. thereto when it seems to be consistent 7. Sampson v. Commonwealth, 5 with and to support the meaning and Watts & S. (Pa.) 385, holding that intention as manifested by the other in such ease the rule ad prosBim.um parts of the writing or instrument. anteoedens fiat relatio, nisi imperia- Sampson v. Commonwealth, 5 Watts tur sententia applies. See Wilkinson & S. (Pa.) 385, 388. Per Kkn- V. State, 10 Ind. 372. nedy, J. 204 Body of Indictment Geneeatxy. § 190 a pronoun in an indictment it has been declared that there is no rule of legal or grammatical construction, which necessarily re- quires that it shall relate to the last noun or nouns, mentioned for its antecedent, but that this is a matter which is governed by the sense and meaning intended to be conveyed.* So in a case in Massachusetts it is decided that the pronoun " them " must be referred to that antecedent, to which the tenor of the instrument and the principles of law require that it should relate, whether exactly according to the rules of syntax or not.^" § 190. Words to be construed according to usual meaning. — Words in an indictment are to be construed in their common and usual acceptation, except those which have a technical meaning or are defined by law.^^ So it was said by Lord Ellenborough in an early English case that " Except in particular cases where precise technical expressions are required to be used, there is no rule that other words shall be employed than such as are in ordinary use ; or, that in indictments or other pleadings a different sense is to be put upon them than what they bear in ordinary acceptation. And if, where the sense may be ambiguous it is sufficiently marked 9. Miller v. State, 107 Ind. 152, 7 of three inches and no more," such N. E. 898. averment was certain to a common 10. Commonwealth v. Call, 21 intent as meaning a tire three inches Pick. (Mass.) 515. in width and was sufficient on de- ll. State V. Day, 52 Ind. 483, murrer. See Smith v. State (Neb., holding that an indictment for ob- 1904), 100 N. W. 806, holding that strueting a highway by " unlawfully words in an information are to be cutting a ditch alongside of, and mak- construed according to their ordinary ing an embankment alongside of and meaning. across said highway," was not had by The word " until " in the clause failing to allege the depth of the "until the 29th of November" has ditch and the height of the embank- been held to have an inclusive mean- ment. State v. Messenger, 63 Ohio ing where not only the presumed in- St. 398, 59 N. E. 105, holding that tention of consistency on the part of where an indictment under a statute the framer of an information re- prohibiting the carrying of a certain quired that the word should be thus weight over certain roads in a vehicle understood, but also the context war- having a tire " of three inches in ranted the adoption of such meaning. width," alleged the carrying of such King v. Stevens, 5 East. 244. •a weight " in a, vehicle having a tire 205 § 191 Body of Indictment Geneeally. by the context, or other means, in what sense they are intended to he used, no objection can be made on the ground of repugnancy, which only exists where a sense is annexed to words which |is either absolutely inconsistent therewith, or being apparently so, is not accompanied by anything to explain or define them. If the sense be clear, nice exceptions ought not to be regarded."'* So where the words used in an indictment to describe an offense are commonly used in a sense which does not import an offense, and they are used without any qualification, the indictment will be bad, though the same words, in a more strict and technioali sense, may describe a criminal act.'* And where it was alleged in an indictment that defendant falsely pretended that " he had one small black mule," it was held that the word " had " was to be construed as an assertion of ownership.'* By the code or by stat- ute in some states it is provided that such a construction is to be given to the words used in an indictment.'^ § 191. Where technical words are used In many cases the law has technical terms, which are descriptive of actions or of motives, which are not generally used in any other sense, and where these terms are used in an indictmenit they are to be read and understood in that legal and technical sense only,'® as in the case of the word " smuggle," which is said to be a technical word having a known and accepted meaning.'^ 12. King V. Stevens, 5 East. 244, implies something illegal and is in- 259. See State v. Pratt, 14 N. H. consistent with an innocent intent. 456, wherein this language is in part The idea conveyed by it is that of a quoted with approval. secret introduction of goods with in- 13. State V. Parker, 4.3 N. H. 83. tent to avoid payment of duty. Aa 14. Franklin v. State, 52 Ala. 414. such it is used by itself alone and in 15. People v. Littlefield, 5 Cal. the statutes even. It is used in sec- 355, 356; Smith v. State, 1 Kan. 365, tion 4596 of the Revised Statutes, in 389. a provision relating to seamen, where 16. State v. Parker, 43 N. H. 83; an 'act of smuggling' plainly is sup- United States v. Claflin, 25 Fed. Cas. posed to mean such an act as above No. 14,798, 13 Blatchf. 178. described and none other. The word 17. United States v. Claflin, 25 is used in the same technical manner Fed. Cas. No. 14,798, 13 Blatchf. 178, in the English statute (16 and 17 wherein it was said of this word : "It Vict., c. 107, § 244), where it is 206 Body of Indictment Geneeallt. §§ 192, 193 § 192. Indictment must be in English language. — It may be stated as a general rule that judicial proceedings are to be con- ducted, preserved and published only in the English language.^^ And a constitutional provision that the acts constituting the offense shall be stated in ordinary and concise language requires the use of the English language.'^ § 193. Bad handwriting does not necessarily vitiate. — An in- dictment will not be quashed on account of bad handwriting, pro- vided it is not illegible.^" " If courts should make legibility and accurate chirography requisites of valid indictments, prisoners would more often escape for want of these requisites than by reason of their innocence. The law is well settled that verbal or grammatical inaccuracies, which do not affect the sense, are not fatal.^^ If the sense be clear, nice exceptions ought not to be regarded. And even when the sense or the word may be am- biguous, this will not be fatal, if it is sufficiently shown by the context in what sense the phrase or word was intended to be deemed sufficiently descriptive of a particular illegal employment in a ship, to designate it as ' a smuggling ship.' This technical meaning of the word has taken the form of a statu- tory definition in the moiety act of June 22, 1874 (18 Stat. 186), where it is declared that the act of ' smug- gling shall be construed to mean the act, with intent to defraud,' of bring- ing into the United States, or, with like intent, attempting to bring into the United States, dutiable articles, without passing the same, or the package containing the same, through the custom house, or submitting them to the officers of the revenue for ex- amination.' " In this case the point was raised that averring the goods to have been smuggled and clandes- tinely introduced into the port of New York from the republic of France was not the giving of such a state- ment as would enable the court to say that the original information was illegal. The objection, however, was not sustained. 18. People V. Ah Sum, 92 Cal. 648, 29 Pac. 680. 19. People V. Ah Sum, 92 Cal. 648, 29 Pac. 680, holding that an infor- mation for perjury in testifying falsely in reference to the sale of a, lottery ticket, a photographic copy of which was contained in the informa- tion, without any allegation of its tenor in English, could not be said to be in ordinary language. 20. State v. Morris, 43 Tex. 372. See Dodson v. State (Tex. Cr. App. 1902), 66 S. W. 1098. 21. Whart. Cr. Plead. & Pr., § 207 § 194: Body of Indictment Generally. used.^'' So wJiere in an indictment for theft a letter in the name of the owner of the property would have been taken for an e, but for the fact that such letter had a dot over it, and the letter should have been an e the court declared that it would not reverse a case simply on account of a dot over a letter whicb may have gotten there entirely by accident, especially where the two names were very nearly idem sonans.^^ And where the name of the month in an indictment was so written as to read either February or Tebruary, it was held that standing in the connection it did to the remaining letters of the word and the court judicially know- ing that the name of not one of the calendar months commenced with a T, it would naturally conclude that the letter was intended for an F, and that the defendant could not have been misled by it.2* § 194. Stating dates — Use of figures. — ^Figures, the use of which in an indictment was at one time restrained by statute in England,^^ are said to be a part of the English language,^* and the fact that they are used in expressing a date in an indictment is not ordinarily regarded as a ground of ob- jection thereto,^''^ although it would perhaps be more advisable to use words instead of figures. So in reference to the use of 273; Shay. v. People, 22 N. Y. 317; 25. The mle in England re- state V. Gilmore, 9 W. Va. 641 ; State straining the expression of num- V. Hedge, 6 Xnd. 333. hers by figures, was not a regulation 22. State v. Halida, 28 W. Va. 491. of the common law, hut made by a Per Snydee, J., citing King v. Ste- statute subsequently repealed. Kelly vens, 5 East. 244, 260; 2 Hale's P. v. State, 3 Sm. & M. (Miss.) 518. C. 193- State v. Edwards, 19 Mo; 674. The statutes requiring that all in- 23. Hutto V. State, 7 Tex. App. dictments should he in words at 44_ length were 4 Geo. 2, oh. 26, and 6 24. Wittens v. State, 4 Tex. App. Geo. 2, eh. 14. See Lazier v. Com- 70. Judge White said: "The legis- monwealth, 10 Gratt. (Va.) 708, 712. lature has not, in providing the 26. Kelly v. State, 3 Sm. & M. requisites for an indictment, estab- (Miss.) 518, 525, citing State v. lished a standard of penmanship in Hodgeden, 3 Vt. 431. which it must be prepared, as one of 27. Iowa. — Winfleld v. State, 3 their number. The objection is hy- G. Greene, 39. percritical." Mississippi. — Kelly v. State, 3 See Irwin v. State, 7 Tex. App. 109. Sm. & M. 518. 208 Body of Indictment Geneeally. § 195 figures in stating the date in an indictment is has been said : "It is certainly safer and more certain to set out dates in an indictment in words instead of figures. Figures are more easily altered than words, and are more apt to be illegible, either from obliteration, or not being plainly made." ^* § 195. Use of abbreviations or Latin words. — ^Although it is the better practice in an indictment to write all the words in full,'** the use of words or abbreviations which have a well de- fined meaning in the English language and may be said to have become English by adoption, is permissible. So it has been de- cided that an indictment is not defective by reason of the use of usual initials A. D. in stating the date,^" or by the use of the words Anno Domini.*^ And where the abbreviation sd. was used for the word said it was held that there was no ground for arrest- ing judgment though the court declared that imperfections of this kind were objectionable and to be avoided.^^ Texas. — Earl v. State, 33 Tex. Cr. 570, 28 S. W. 469. VeTmont. — State v. Hodgeden, 3 Vt. 481. Virginia, — ^Lazier v. CJommon- ■wealth, 10 Gratt. 708. See Commonwealth v. Hagannan, 10 Allen (Mass.), 401. 28. Lazier v. Commonwealth, 10 Gratt. (Va.) 708, 712. Per MoN- CUEE, J. 29. Brown v. State, 16 Tex. Cr. App. 245. See, also, Walton v. State, 29 Tex. App. 527, 16 S. W. 423. 30. State v. Hodgeden, 3 Vt. 481, so holding in case of the use of " A. D. 1830." The court said: "On inspec- tion of this indictment, we perceive that the characters and figures used, are such as are in common use among VIS, and have been so from time imme- morial. They are such as all persons who write, and read writing, read and understand alike. They are so plainly written, according to the ac- customed form of these characters and figures, that no two persons at all familiar with our daily manuscripts could read and understand them dif- ferently. . . . While our statute requires our judicial proceedings to be in the English language, it re- quires this alike in civil cases and criminal. And these initials and fig- ures have ever been used in civil pro- ceedings in this State. They seem to be incorporated into our English lan- guage, and become a part of it, as well understood as any other part of it." Per HuTCHrNSON, J. See State V. Reed, 35 Me. 489, 58 Am. Dee. 727; Commonwealth v. Clark, 4 Cush. (Mass.) 596. 31. State V. Gilbert, 13 Vt. 647. 32. Commonwealth v. Desmarteau, 16 Gray (Mass.) 1. 209 14 §§ 196, 197 Body of Indictment Geneeallt. i§ 196. Use of signs. — The use in an indictment of the sign ■which is ordinarily and frequently used for the word " and " does not render the indictment defective.^^ And this is also true in case of the use before figures of the sign ordinarily used to indicate dollars.** But in a case in Vermont it is decided under a sitatute requiring declarations and other pleadings to be drawn in the English language that the signs of degrees and minutes commonly used to show the meaning of figures with which they are connected are not a part of the English language within the meaning of such statute, and an indictment, for not making a highway pursuant to an order of court, in which these signs were used instead of words was held to be bad on demurrer.^* § 197. Requisites and sufficiency of indictment generally. — Though it is declared by statute that an indictment is the " writ- 33. Pickens v. State, 58 Ala. 364; State V. McPherson, 114 Iowa, 492, 87 N. W. 421; Commonwealth v. Clark, 4 Cush. (Mass.) 596; Walton y. State, 29 Tex. App. 527, 16 S. W. 423; Brown v. State, 16 Tex. Cr. App. 245. In the latter case the court said: "This style of abbreviation has come down to us sanctioned by age and common use for perhaps cen- turies, and is used even at this day in written instruments, in daily transactions, with such frequency that it may be said to be a part of our language when it is written." Per White, J. 34. Earl v. State, 33 Tex. Cr. 570, 28 S. W. 469. As to this it was said: " Throughout the Union, in all finan- cial transactions expressed in writ- ing, it is and has been the habit, practice and custom of all the people to BO express values. Among those nations of the world where our money circulates, or is the subject of ex- change, in commercial dealings had with the citizenship of this country, these marks are thoroughly appreci- ated and their meaning fully under- stood. If there is one thing fixed be- yond doubt in the mind of the Ameri- can people it is the meaning of figures prefixed by the dollar mark. . . . The dollar mark conveys an unques- tioned meaning. Everybody under- stands its significance. It is a part and parcel of our language, and pecu- liarly and originally an American contribution to the language of the world. In view of these matters, would it not be strange indeed that our courts should be required to be ignorant of the purport and meaning of Arabic numerals, so long angli- cized, and the significance of the dol- lar mark, native and original to the United States, and peculiarly our own invention." Per Davidson, J. 35. State v. Jericho, 40 Vt. 121, 94 Am. Dec. 327. 210 Body of Indictment Generally. § 197 ten statement " of the grand jury, this does not render invalid an indictment which is partly written and partly printed, the word " writing " being regarded as including printing.^® And though a part of an indictment is written with a lead pencil, it "would seem that in the absence of a statute it would not vitiate it.*^ And it has been decided that an indictment consisting of two papers pinned together and returned into court as one bill, the two charges being numbered first count and second count is not objectionable, though such papers had been returned as separate indictments and at different terms, it being declared that they could be treated as different counts in the same bill, if germane.^* Nor will an indictment be vitiated by writing upon its back which in no way affects its validity.^^ And an immaterial defect in an indictment will not vitiate it.*" 36. O'Bryan v. State, 27 Tex. App. 339, 11 S. W. 443. 37. May v. State, 14 Ohio, 461, 45 Am. Deo. 548, holding that the addi- tion of a letter in pencil mark be- fore the indictment was found by the grand jury did not vitiate it. The court said: "It is the substance of the form, and not its shadow, to which it is important to adhere. The court might not feel disposed to tol- erate the practice of drawing an en- tire indictment with a lead pencil, because it is more liable to be ef- faced and obliterated, than if drawn with ink; but there is no statute in Ohio, nor any rule of common law, nor any principle of ordinary sense, that will avoid an indictment, merely because one letter in the whole indict- ment is added to some one word in pencil, and that letter making no dif- ference, neither in sound, sense, nor effect, in the word to which it is joined. An indictment is usually written, but it may be printed, and is, nevertheless, valid. It is com- monly drawn, with black ink; but if written in red, blue or yellow, who is bold enough to say that it is such a departure from usage that it viti- ates the indictment? We apprehend no one." Per Wood, J. 38. State v. Robbins, 123 N. C. 730, 31 S. E. 669, 68 Am. St. Rep. 841. 39. Baker v. State, 28 Tex. App. 5, 11 S. W. 676, so holding where there was printed on the back of the in- dictment the following : " Certified copy of indictment, class No. 2," but the indorsement was not signed by anyone. 40. State v. Johnson, 37 Minn. 493, 35 N. W. 373, holding that put- ting the date when and the place where the indictment was found at the end of the instrument after the words " against the peace and dig- nity of the State of Minnesota,'' did not vitiate it. " The words are no part of the indictment; their pres- 211 I 198 Body of Indictment Geneeally. § 198. Following precedent or statute. — To avoid imper- fections in an indictment it would be the better practice to follow some approved precedent.*^ And where by statute or code the requisites of an indictment are specified, the pleader should be guided by them and not by the rules of the common law.*^ And in determining the suf&caency of an indictment under a statute requiring the courts not to hold an indictment insufficient for any defect or imperfection in matter of form only which shall not tend to the prejudice of the defendant it was said : " It is some- ence adds nothing to it, their absence would take nothing from it; it is eon- eluded before those words are reached." Per GiufilulN, J. See §§ 199, 200, post, herein. 41. Davis V. United States, 16 App. (D. C. ) 442, wherein the court said in regard to the sufficiency of an indictment : " Whatever might be thought of the form of the indict- ment, if it were now for the first time to be passed upon, that form has been so long accepted, and so often approved by the courts of this Dis- trict, that nothing short of an appar- ent danger that it might operate to the prejudice of the defendant, would justify a disturbance of the settled practice." Per Alvby, J. Follo-ning precedents. — " While the better rule in preparing indict- ments and informations is to follow approved precedents when it can be done, they are not necessarily defec- tive because they fail to do so, but if they contain all necessary aver- ments, though couched in different language from approved forms and precedents, they will be held good." State V. Privitt, 175 Mo. 207, 225, 75 S. W. 457. Per Bubqess, J. , 42. Madden v. State, 1 Kan. 340, wherein it is said in this connection: " It is to be regretted that those who have occasion to plead imder the code so often attempt to unite the simple rules of the code with the complex and cumbersome forms of the common law. Either may be good enough of itself, but from their very nature both ought not to be at- tempted in one case; and it is from the vain effort to do so that most of the difficulty arises in determining upon the sufficiency of the pleadings. The nice technicalities and fine-spun and often arbitrary distinctions of the old system will not harmonize with the ' plain and concise language ' which the code requires in stating the facts constituting an offense." Per Kingman, J. Compare Kennedy v. People, 39 N. Y. 245, declaring that a statute de- fining murder in the first degree, mur- der in the second degree, and man- slaughter, has not changed the form of pleading so that an indictment for murder, good at the common law, is no longer sufficient, and that the statute is not a rule of pleading, but a guide to the conduct of the trial and to the instructions to be given to the jury. 212 Body of Indictment Generally. § 199 ■what difficult to say what is form and what is substance, in an indictment. A nice critic might insist that form is substance in criminal pleading, but the statute is intended to have some opera- tion, and I have been disposed to give it a liberal construction. I have held that a particular intent, which made an act a crime by the words of a statute, is part of the substance. On the other hand, mere mistakes, however serious, in expressing the substance of a crime, if the meaning can be understood, I look upon as formal." ** § 199. Strict adherence to form — Early English rule — Not generally followed now. — ^Although in the early English cases courts were inclined to adhere strictly to form and to hold an in- dictment defective where there was not such an adherence, al- though the departure was a trivial one yet the courts have in modern times to a great extent done away with this practice, and have not allowed mere clerical or technical errors, such as the omission of a letter in .a word or of a word itself to vitiate an in- dictment, where such omission does not operate to change the word into another of different meaning or to render vague or unmeaning the statement intended to be made. So it has been said in this connection: " Formerly in England, the judges felt themselves constrained to adhere so strictly to form, that public justice was in many eases evaded, and the most dangerous male^ factors let loose upon society, in consequence of the omission of some senseless and unmeaning form. A more correct and just appreciation of criminal justice has banished from the English courts these legal absurdities, which answered no other purpose than to protect and screen the guilty from the just punishment of their crimes. They will no longer permit the guilty man to escape punishment by averring that he cannot comprehend, and does not understand, what is palpable and evident to the common sense of everybody else." ** So where an indictment charged that 43. United States v. Jackson, 2 States, 152 TJ. S. 211, 38 L. Ed. 415, Fed. 502. 14 Sup. St. 513: Rex v. Harris, 7 C. 44. State v. Hornsby, 8 Rob. (La.) & P. 416, holding that the word 554, 557, 41 Am. Dec. 305. Per "guilder" is sufficiently an English NicHOLLS, J. See Caha v. United word to justify its use in an indiet- 213 § 200 Body of Indictment Geneeally. a mortal blow caused " an extravasion " instead of an extravasa- tion of blood, it was held that the omission of the letters was not a fatal defect, and this even though the constitution required all indictments to be couched in the language of the constitution and by such omission the word was changed to a French word of the same meaning as that intended to be used.'*^ And a mistake in spelling the name of the place where it is alleged the offense was committed has been held not to render an indictment bad, the names being clearly idem sonana.*^ But in a case in Missouri in which it was held that an indictment was fatally defective in charging that the accused did " wilfully and contemptuously disturb a congration of people met for religious worship," the court declared that there was no policy in encouraging carelessness or laxity in criminal pleadings.*^ § 200. Rule generally as to defects and infirmities. — ^It has been said that though an indictment may not be very cleverly ment as a translation of the Polish word "zlotych," which is also called a guilder and a florin. See sections following herein as to application of the principles stated in the text. 45. State v. Hornsby, 8 Rob. (La.) 554, 41 Am. Dec. 305. See § 204 herein as to errors in spelling. 46. Commonwealth v. Desmarteau, 16 Gray (Mass.) 1, holding that the misspelling of the name of the town of Chicopee, by adding " k " to the first syllable, was no ground for ar- resting the judgment. 47. State v. Mitchell, 25 Mo. 420. The court said in this case: "When any departure from the required form is tolerated, it, instead of being re- garded as a beacon to warn the pleader of danger, is instantly seized upon as a precedent and urged as a reason why there should be a greater relaxation of the rule requiring the observance of forms. In this way the courts will be led, step by step, to the subversion of all order in the ad- ministration of the criminal code. When a man is called upon to defend himself against the charge of having violated the law, it is not unreason- able that he should require the accu- sation against him to be in sensible language. . . The letters com- posing ' congration ' do not make an abbreviation commonly used in our language. Nor do they make an abbreviation which is commonly used for the word ' congregation.' If • congration ' is not an abbreviation then it is no word at all known to our language. . . . It is an ab- surdity to say that a man disturbed a ' congration ' of people.'' Per Scott, J. 214 Body of Indictment Geneeally. § 201 drawn, yet if there is no substantial infirmity therein it will be sufficient.** So it has been declared that though an indictment may be subject to verbal and grammatical criticism, and though there may be an awkward use of words and clumsy construction of some of' the sentences, yet it may be good at common law, and being so would doubtless be good under a code provision that the offense be " charged in plain and intelligible words." *® There- fore, though the part of the indictment which is descriptive of the offense, especially a statutory offense, may not be accurately drawn, or verbally correct, yet if it is so drawn as to sufficiently show what is intended to a person of ordinary understanding it will be legally sufficient.®" So in the case of an indictment for unlaw- fully operating a slot machine it was declared that the fact that the indictment in the accusative part did not show that the slot machine was a contrivance ordinarily used for gambling was not sufficient to vitiate it where the other facts stated in the accusa- tive part were sufficient to apprise a person of ordinary under- standing of the precise offen&e charged.®^ But where there is an unmeaning accumulation of words used in describing an offense it will be fatal, and it has been decided that a judgment rendered in such a case will be reversed.*^ § 201. Use of ungrammatical language — Though an indict- ment may be couched in ungrammatical language this Avill not of 48. Heath v. State, 101 Ind. 512. 26 Ky. Law Rep. 508, 82 S. W. 238. Defects wMcb do not tend to 52. Sparks v. State, 35 Tex. 349, the prejudice of the accused do so holding in the case of an indict- not render an indictment insufficient, ment for the theft of four heef steers where they are defects in matter of from the possession of one J. P. Cox, form merely. Caha v. United States, "without his consent, intent to de- 152 U. S. 211, 38 L. Ed. 415, 14 Sup. prive him, the owner, of the value of Ct. 513. the same, and to appropriate the to 49. Dawson v. State, 33 Tex. 491. the use himself, the said George 50. Bergen v. People, 17 111. 426; Sparks." Judge Oqden said: "We Paducah & Elizabethtown R. R. Co. are surprised that a district judge V. Commonwealth, 80 Ky. 147; State should permit a trial and conviction V. Bloor, 20 Mont. 574, 52 Pac. 11; in his court upon an indictment so Dawson v. State, 33 Tex. 491. faulty and full of nonsense." 51. Commonwealth v. Schatzman, 215 § 202 Body of Indictment Geneeally. itself render the indictment insufficient, provided the intention and meaning of the pleader is clearly apparent.®^ So it is said in one case in which an objection on such a ground was raised, " The grammatical and critical objections, however ingenious and acute they may be, cannot prevaiL The age has gone by when bad Latin or even bad English, so it be sufficiently intelligible, can avail against an indictment declaration, or plea." °* And in an early case in South Carolina it was declared that " It is suffi- cient if the idea is clearly and distinctly expressed; for neither clerical nor grammatical errors will vitiate, unless they change the word or obscure the meaning." ^^ § 202. Mistakes which are merely clerical. — It is a general rule that an indictment is not vitiated by mistakes which are merely clerical, where they do not destroy the sense of the indict- ment and the meaning is apparent®® So a clerical error in writing 53. Alabama. — Pond v. State, 55 Ala. 196, holding an indictment suf- ficient which charged that the de- fendant "broke into and entered the store house of R. B., with the intent to steal, where there was, at the time of such breaking and entering into eaid storehouse, goods, merchandise or other valuable things, was kept for use." Iowa. — State v. Pennell, 56 Iowa, 29, 8 N. W. 68. Kentncky. — Newman v. Common- wealth, 28 Ky. Law Rep. 81, 88 S. W. 1089. Montana. — State v. Bloor, 20 Mont. 575. PennaylTamia. — Perdue v. Com- monwealth, 96 Pa. St. 311. Sonth Carolina, — State v. Wim- berly, 3 McC. L. 190. Texas.— Wilson v. State (Tex. Cr. App., 1905), 90 8. W. 312. West Virginia — State v. Halida, 28 W. Va. 499. 54. Commonwealth v. Call, 21 Pick. (Mass.) 515. Per Mobton, J. 55. State v. Wimberly, 3 MeC. h. (S. C.) 190. Per Johnson, J. 56. Arkansas. — ^Evans v. State, 68 Ark. 47, 22 S. W. 1026. Mississippi. — Greeson v. State, 5 How. 33. Missonri. — State v. Turlington, 102 Mo. 642, 15 S. W. 141 ; State v. Eaton, 75 Mo. 586; State v. Rogers, 37 Mo. 367. Neiv York. — People v. Gilkinson, 4 Park. Cr. 26. Soatk Carolina. — State v. Wim- berly, 3 McC. L. 190. Texas. — Martin v. State, 40 Tex. 19; Chessley v. State (Tex. Cr. App. 1903), 74 S. W. 548; Freeman v. State, 44 Tex. Cr. 496, 72 S. W. 1001; Peters v. State (Tex. Cr. App.), 23 S. W. 683. 216 Body of Indictment Geneeally. § 202 a name in an indictment cannot be invoked as violating the pro- ceeding.^'' And where the name of the accused in the indictment is originally correct and in subsequent allegations where the name is referred to as the " said " named party, it is sufficient, even though the name of the accused is not subsequently correctly set out.^* So where the property feloniously taken was laid in one clause of an indictment as the property of Richard, but was after- words recited as the property of Robert it was held to be a mere clerical error and that an objection to the indictment on this ground could not prevail, the error being one which did not prejudice defendant.** And where it was charged in an indictment for murder that the defendant wounded the deceased on the 30th of August and that the deceased in consequence thereof languished until the first of September, on which day of August he died, it was decided that the insertion of August for September was man- ifestly a clerical mistake and not a sufficient ground for arresting the judgment.®" Again, where words are used in an. indictment Virginia. — Commonwealth v. Ail- stock, 3 Gratt. 650. United States. — ^Hard T. Stone, 5 Craneh C. C. 503. Tlie rule applies to informa- tions. — People V. Duford, 66 Mich. 90, 33 N. W. 28. So where, in an in- formation, the word " affiant " was used instead of the words " prosecut- ing attorney," which should have been employed, it was held that the defect was not available on a motion in arrest . of judgment where the whole information taken together un- mistakably showed that the charge was preferred by the proper officer. Billings V. State, 107 Ind. 54, 6 N. E. 914, 57 Am. Rep. 77. ITse of " or " instead of " and " is not a fatal defect unless it renders the meaning uncertain. Peo- ple V. Gilkinson, 4 Park. Cr. (N. Y.) 26. 57. State v. Ford, 38 La. Ann. 797; State v. Morgan, 35 La. Ann. 293, wherein it was said : " The ob- jection that the name of the signer of the order is not correctly tran- scribed in the indictment, because the last letter of the name is copied as an ' r ' when that letter in the original appears to be a ' w ' or ' n ' or ' tt,' is evidently more fractious than serious. It would at most show a clerical error, which could not vitiate the proceedings.'' Per EocHE, J., citing State v. Given, 32 La. Ann. 782. 58. Chessley v. State (Tex. Cr. App. 1903), 74 S. W. 548. See chapter IX herein as to descrip- tion of accused generally. 59. Greeson v. State, 5 How. (Miss.) 33. 60. State v. Eaton, 75 Mb. 586. See, also, Commonwealth v. Ailstock, 217 § 203 Body of Indictment Geneeally. which are mere surplusage, they are to be disregarded and do not affect the validity of the indictment.*' But where, in the charging part of an indictment, the name of the deceased was substituted for that of the defendant and the clause in which such substitu- tion was made was the only one which alleged the infliction of the mortal wound upon the body of the deceased, it was decided that the mistake could neither be corrected or ignored, and that the indictment must be held to be fatally defective.®^ § 203. Use of wrong pronouns. — The use of a wrong pronoun will not vitiate an indictment. Thus it was so held where in an indictment against a single defendant charging the theft of a certain mare and colt, the pronoun " their " was used instead of the pronoun " his " in connection with the averment of appropri- ation and use.®^ And the fact that an indictment against several defendants for keeping a disorderly house charged them with keeping it " for his own lucre and gain," instead of their own lucre and gain, was held to be no ground for quashing the indictment when the making of gain was not necessary to render the practices carried on in the house illegal.*^ And where an indictment con- tained two averments of perjury and in asserting the falsity it was alleged that defendant knew, said "statements to be false when he made it," an objection to the indictment on the 3 Gratt. (Va.) 651, where a similar Pick. (Mass.) 515; Jackson v. State, conclusion was readied where it was 88 Ga. 784, 15 S. E. 677. charged in an indictment that the 64. State v. Parks, 61 N. J. L. 438, wound was inflicted on the 7th of 39 Atl. 1023. November, 1845, and that the de- In an indictment for the theft of a ceased languished until the 8th of No- mare and a horse the use of the pro- vember in the year aforesaid, " on noun " it " in reference to them in which said 8th of May in the year alleging the intent has been held cor- aforesaid, the deceased died." Com pare State v. Craighead, 32 Mo. 561 61. State V. Coleman, 8 S. C. 237 62. State v. Edwards, 70 Mo. 480 63. Snow V. State, 6 Tex. App, 284. See Commonwealth v. Call, 21 rect, such pronoun being declared to necessarily refer, both in grammati- cal and legal construction, to the property in the animals. Goodson ▼. State, 32 Tex. 121. 218 Body of Indictment Geneealli:. § 204 ground that the singular " it " instead of the plural " them " was used was declared to be hypercritical.®^ § 204. Errors in spelling. — Errors in spelling do not vitiate an indictment where the meaning is not thereby changed or ren- dered obscure.*® So in a recent case in Texas it is said that " where the context of the indictment clearly indicates the inten- tion of the pleader, and there can be no mistake as to his mean- ing, we will not hold an indictment bad for the lack of proper spelling or grammar." ^'' And in a case in Indiana it is declared that it is hardly necessary to cite authorities to support a proposi- tion so well settled and understood as that mere orthography will not vitiate an indictment.®^ In this connection it was also said in a case in Wisconsin in which an indictment was objected to on the ground that the word assault was spelled " assatt," " It is hardly possible to conceive that the defendant or his counsel could have been misled by the misspelling of the word ' assault.' Nor yet is there the slightest apology for the gross ignorance or gross carelessness of the person who drew the indictment, or of the clerk who may have copied it, or whomsoever the person may be who committed the blunder. An apology for such recklessness or ignorance on the part of one who pretends to rank as a member of a learned profession, is inconceivable. But gross and unpar- 65. Hollins v. State (Tex. Cr. App. Texas. — Francis v. State, 44 Tex. 1902), 69 S. W. 594. Cr. 246, 70 S. W. 751; Keller v. 66. Alabama.— Bell v. State, 139 State, 25 Tex. App. 325, 8 S. W. 275; Ala. 124, 35 So. 1021 ; Grant v. State, Somerville v. State, 6 Tex. App. 433. 55 Ala. 201. 'West Virginia.— State v. Halida, Indiana.— State v. Hedge, 6 Ind. 28 W. Va. 499. 330; Wills V. State, 4 Blackf. (Ind.) Wisconsin. — State v. Crane, 4 457. Wis. 400. Nortli Carolina, — State v. Mo- See, also, the following section lier, 12 N. C. 263. herein for further citations in support Oklahoma. — Smith v. Territory, of rule stated in text and also illus- 14 Okla. 162, 77 Pac. 187. trations thereof. South Carolina. — State v. Cole- 67. Francis v. State, 44 Tex. Cr. man, 8 S. C. 237. 246, 70 S. W. 451. Tennessee. — State v. Myers, 85 68. Lefler v. State, 122 Ind. 208, Tenn. 203, 5 S. W. 377. 23 N. E. 154. 219 § 205 Body of Indictment Geneeallt. donable as the error is, it would be placing the defendant in a position of ■which he would be ashamed, to make it available to him. To do so would establish another and a more perfect de- fense, which he has not set up. He does not claim to be non compos mentis. Nor should the due administration of justice be delayed by such gossamer obstacles as this." ®* This rule es- pecially applies where it is provided by statute that an indictment shall not be regarded as insufficient by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits. '''' This rule, however, is subject to this qualification, that the error in spelling must not be such as to obscure or change the meaning,''^ or to mislead the defendant.''^ § 205. Same subject continued — .Illustrations. — The rule stated in the preceding section''^ has been applied in cases of mis- spelling such as " f raudelently " '^* or " fraudlently " for fraud- ulently f^ " gel " for gold, in describing money alleged to have been stolen ;''* "defendants" for defendant ;^'^ "too" for two, in stating the year one thousand eight hundred and fifty-two;'* " spiritual " '^® or " spiritous " for spirituous, in an indictment for 69. State v. Crane, 4 Wis. 400, sion of the letter 'd' from the word 402. Per Smith, J. ' gold,' converting its into ' gol,' is a 70. Smith v. Territory, 14 Okla. mere clerical error, or bad spelling, 162, 77 Pac. 187. on the part of the pleader. The sense 71. State V. Earp, 41 Tex. 487. is not obscured. . . . The defend- 72. State v. Crane, 4 Wis. 400. ant, on the inspection of the indict- 73. See § 204 herein. ment, or on hearing it read, would 74. Bell V. State, 139 Ala. 124, 35 know that it was intended to charge So. 1021. him with larceny of ten twenty-dollar 75. State v. Earp, 41 Tex. 487. gold pieces of American coinage, and 76. Grant v. State, 55 Ala. 201, the court would with certainty un- wherein it was said: "Neither cleri- derstand that such was the acousa- cal nor grammatical errors vitiate an tion." Per Bbickell, J. indictment, unless they change the 77. Evans v. State, 58 Ark. 47, 22 words or obscure the sense. It is S. W. 1026. simply impossible to read this indict- 78. State v. Hedge, 6 Ind. 330. ment, and be in doubt as to the words 79. State v. Clark, 3 Ind. 451. intended, or their import. The omis- 220 Body of Indictment Generallt. § 206 tlie unlawful sale of spirituous liquors ;*** " stal " for steal f^ " cash. " for ease f^ " fourman " for foreman f^ " guilts " for gilts;®* "laden" for leaden;*® -where an indictment in charging the offense concluded " against the statue in such ease made and provided," instead of "against tte statute;" ** " sive " for sieve;®'' " mair " for mare in describing an animal stolen f^ the use of tke word " and " for an f^ " shorting " for shooting f " avo- cation " for vocation ;®^ " inhabitance " for inhabitants f^ " dring " for drink f^ " aganist " for against in the conclusion f* " Janury " for January f^ " eiget " for eight in stating the date of the alleged offense f^ " gilding " for gelding f where seventy- five was printed sunty-five and the word dignity was written with- out crossing the t, thus causing it to be spelled dignily,®® and " assatt " for assault »» § 206. Same subject — Contrary view. — ^Although it is, as we have stated, a generally accepted rule that an error in spelling 80. Brumley v. State, 11 Tex. App. 114. 81. Mills V. State, 4 Blaekf. (Ind.) 457. 82. State v. Given, 32 La. Ann. 782, so holding in construing an in- formation. as. State V. Kam, 16 La. Ann. 183, holding the words are idem sonans. 84. State v. Lucas, 147 Mo. 70, 47 S. W. 1067, holding the words are idem sonans. 85. State v. Elkins, 101 Mo. 344, 14 S. W. 116. 86. State v. Coleman, 8 S. C. 237. 87. State v. Holier, 8 S. C. 263. 88. State v. Myers, 85 Tenn. 203, 5 S. W. 377. 89. Martin v. State, 40 Tex. 19, so holding where an indictment charged that the accused " did commit and as- sault" instead of "did commit an assault." 90. Francis v. State, 44 Tex. Cr. 246, 70 S. W. 451. 91. Peters v. State (Tex. Cr.), 23 S. W. 683. 92. Keller v. State, 25 Tex. App. 325, 8 S. W. 275. 93. Brumley v. State, 11 Tex. App, 114. 94. Hudson v. State, 10 Tex. App. 215. 95. Hutto V. State, 7 Tex. App, 44. 96. Somerville v. State, 6 Tex. App. 433. 97. Thomas v. State, 2 Tex. App 293. 98. State v. Halida, 28 W. Va. 499. The court said: "It is not difficult for a person of common or ordinary intelligence to read and un- derstand the words and meaning of this indictment." Per Sntdee, J. 99. State v. Crane, 4 Wis. 400. 221 § 207 Body of Indictment Geneeally. will not vitiate an indictment where the meaning is not thereby changed or rendered obscure,^ yet there are several decisions in which it has been held that an indictment is fatally defective owing to an error in spelling such as " dwell-house " for dwelling- house,^ " aforethou " for aforethought,* "maice" for malice;* " brest " for breast;^ " possion " for possession;* and " appriate " for appropriated Most of these cases, some of which aire in apparent conflict with the general rule,* are based upon the reasoning that where a certain word is material in an indictment it cannot be supplied by intendment, and that if some combina- tion of letters is used which is unmeaning and it is not idem sonans with the word which should have been used, such an error is fatal. And in a case in South Carolina, in which the general rule that clerical or grammatical errors not affecting the sense of an indictment do not vitiate it is recognized, it is, however, de- clared that where the omission or addition of a letter makes a change of the word, so as to make another word, it becomes ma- terial when it occurs in certain parts of an indictment and that where such omission or addition occurs in setting out those material words of a statute, which must be pursued in describing a statutory offense, a want of necessary certainty is produced wherever the meaning is obscured, and that in such a case the indictment is bad.® § 20Y. Effect of omissions generally. — An indictment is not vitiated 'by the omission of a word where the meaning of the clause 1. See § 204 herein. 621, 8 S. W. 801, 8 Am. St. Rep. 449, 2. Parker v. State, 114 Ala. 690, wherein it was held that a motion to 22 So. 791, wherein it is said: "Great quash the indictment for such error precision should be preserved in mat- should have been granted, it being de- ters which vitally affect the life and clared that " appriate " and " appro- liberty of the citizen." priate " are not idem sonans. 3. Griffith v. State, 90 Ala. 583. 8. See § 204 herein. 4. Wood V. State, 50 Ala. 144. 9. State v. Caspary, 11 Rich. L. 5. Anon. 2 Hayw. (N. C.) 140. (S. C.) 3.56, holding that an indict- 6. Evans v. State, 34 Tex. Cr. 110, ment for bastardy was bad where it 29 S. W. 266. alleged that the accused was " thfr 7. Jones v. State, 25 Tex. App. farther of the said bastard child." 222 Body of Indictment Genekallt. § 207 in Tvliicli the omission occurs is not thereby aflfected or where the entire clause could be struck out as surplusage without obscur- ing the meaning of the indictment.*" So the omission of the pro- noun " his " before the word " hands " in an indictment for murder alleging that the defendant with a certain gun which he in both hands then and there held, has been held to be no objection to the indictment.** And the omission of the word " of " in the description of the ownership of stolen pro'perty has been held to be a clerical omission which did not render the indictment fatally- defective,** as has also the omission of this word " of " in other oases.*^ And the omission of the word " said " has been held 10. State V. Washington, 13 S. C. 453, so holding where the word " wound " was omitted between the words " mortal " and " of," causing the clause to read " one mortal, of the length of one-eighth of an inch, and of the depth of one inch, of which said mortal wound " the deceased died. See Commonwealth v. Butler, 1 Allen (Mass.), 4, holding the omis- sion of the word " and " in the aver- ment of a complaint charging the de- fendant with being a common seller of intoxicating liquors " on the first day of February in the year of Lord eighteen hundred and sixty, — from said last mentioned day to the day of making this complaint," was not a fatal defect. State v. Burns, 99 Mo. 471, 542, 12 S. W. 801, 13 S. W. 686, holding that an indictment was suf- ficient after verdict though the words " giving to the said deceased then and there " were omitted before the words " one mortal wound." If 'vhat is omitted is implied in that which is expressed an indict- ment is good. People v. Bennett, 37 N. Y. 117, 4 Abb. Pr. N. S. 89. 11. Ward V. State, 8 Blackf. (Ind.) 101, wherein the court declared that " The omission or insertion of that pronoun would go merely to the cer- tainty of the allegation, and not to accuracy in the description of any of the acts constituting the crime, and we think the allegation sufSciently certain in its absence." Per Peb- KINS, J. 12. Abernathy v. State, 78 Ala. 411, so holding where the stolen prop- erty was described as " the property —A. B." 13. State V. Rhodes, 2 Ind. 321, holding the omission of the word " of " before the name William Hite in an indictment against the defend- ant in error for keeping a place where spirituous liquors were sold without license, in a disorderly man- ner, to the disturbance and common nuisance of William Hite, to be im- material. Stanfield v. State, 43 Tex. Cr. 10, 62 S. W. 917, holding that an indictment was sufficient though the word " of " was omitted between the expressions " the tracks " and " the Port Worth and Denver City Rail- road Company" in the clause charg- ing that the accused " did then and 223 § 208 Body of Indictment Geneeally. not fatal.** Again, in a case in ISTewi York it is decided that an in- dictment for murder is sufficient, although, by a clerical omission of the word " with," th© offense in strictness of grammar, may- appear to be charged against the knife, and not against the pris- oner.*^ But where the word " with " was omitted between the name of the defendant and the clause " some heavy weapon," causing the indictment to read that the defendant " some heavy weapon or instrument * * * did forcibly strike and beat," the omission was held to be fatal, as there was no allegiation showing -with, what the homicidal act was done.** § 208. Effect of omissions — When fatal. — ^Where an essential word or clause is omitted from an indictment, such omission is fatal, as in such a case nothing can be taken or supplied by intendment.*^ And it has been said in this connection that the court cannot supply defects in pleading, by supposing to be in- serted what it may be presumed the pleader intended.** And there tinlawfully and willfully place an obstruction, to wit, a large piece of timber, upon the track of a rail- road there situated, to wit, the track the Fort Worth and Denver City Bail road Company." 14. State V. Burke, 108 N. C. 750, 12 S. E. 1000, holding that though a clause in an indictment for false pre- tenses in connection with the sale of a. mule ought to have read " in truth and in fact said mule was not sound," the omission of the word " said " was not a groimd for quashing an indict- ment. 15. Shay v. People, 22 N. Y. 317. 16. State V. Rector, 126 Mo. 328, 23 S. W. 1074. Compare State v. Mosely, 42 La. Ann. 975, 978, 8 So. 470, 471, holding it was no ground for quashing an indictment for wil- ful shooting with intent to murder under a statute which provided that " whosoever shall shoot, stab, or thrust any person with a dangerous weapon with intent to commit murder shall," etc., that the words "with a dangerous weapon " were omitted. 17. Arkaoisas. — Cannon v. State, 60 Ark. 564, 31 S. W. 150. Xionisiana. — State v. Graham, 49 La. Ann. 1524, 22 So. 807. Mississippi. — Cook T. State, 72 Miss. 517, 17 So. 228. Missouri. — State v. Rector, 126 Mo. 328, 23 S. W. 1074; State v. Ray- mond, 54 Mo. App. 425. Texas. — State v. Huston, 12 Tex. 245 ; Jones v. State, 21 Tex. App. 349, 17 S. W. 424. Vermoat. — State v. Leaoh, 27 Vt. 317. Compare State v. Edwards, 19 Mo. 674, distinguishing between indict- ments for felonies and those for mis- demeanors. 18. State V. Daugherty, 30 Tex. 360. 224 Body of Indictment Geneeallt. 209 it has been declared in one case tJiat where an indictment omits a material word, although it be but a preposition or a helping word, the court will not, from a knowledge of the language,, supply the missing word so as to supply the probable intention of the grand jury, but will sustain a judgment quashing the indictment.^^ § 209. Same subject continued — Illustrations. — In the case of an indictment for playing at a game with cards upon which money was bet, at a certain public house, it was held that the omission of the word " at " before the words " a certain public house," was fatal, it being declared that the word " at " in that connection formed an integral part of the description of the of- fense.^** And in an indictment for the theft of a horse, which should have alleged that it was taken from the possession of a certain person, the omission of the word " of " was held to be f atal.^^ Again, the omission of the word " did " before the words " kill and murder " has been held fatal,^^ as has also the omission 19. State V. Daugherty, 30 Tex. 360, cited and followed in Jones v. State, 21 Tex. App. 349, 17 S. W. 424, in which it was held that an indictment charging an assault with intent to murder was defective owing to the preposition " to " being omitted and left out entirely before the words " kill and murder." 20. State v. Huston, 12 Tex. 245. The court said: "A knowledge of the language of the statute enables us to perceive that the word ' at ' was omitted, no doubt by accident, after the word ' bet.' We know that is the appropriate word to supply the omis- sion. But were it not for our ac- quaintance with the subject, we might suppose the omission as well supplied by any other word which would make sense and render the sen- tence complete. It is evident that some word has been casually omitted. But, if we were at liberty to supply such an omission by intendment, there ia nothing in the indictment which indicates that the omitted word should be ' at ' or ' in,' rather than ' by ' or ' was,' or any other word or phrase which would render the sense grammatically accurate and com- plete. . . . It ia clear that the word omitted is essential to the cer- tainty necessary in the description of the offense. It cannot be supplied by intendment, and, of consequence, the omission must be fatal to the indict- ment." Per Wheeieb, J. 21. Riley v. State, 27 Tex. App. 606, 11 S. W. 642. ZZ. Cook V. State, 72 Miss. 517, 17 So. 228. Judge Woods said: "We may by intendment read into the in- dictment the word ' did ' so that the charge shall read ' did kill and mur- der ' the deceased, and thereby make 225 § 209 Body of Indictment Geneeally. of this word before the words " utter, publish, dispose and pass " in an indictment for passing counterfeit money.^* And likewise it has been decided that conviction for burglary cannot be sus- tained where the word " did " is omitted in the charging part.^* And in an indictment for subornation of perjury, the omission even by mistake, of the verb implying that the witness charged to have been suborned, testified, was held to be a fatal defect on a motion in arrest of judgment, which could not be supplied or cured by intendment,^® In other cases, however, it has been held that the omission of the word " did " is merely a clerical error which does not vitiate an indictment.^® And in an indictment for misdemeanor the omission of the word did before the words " assault, beat and maltreat " has been held not to be f atal.*^ In this latter decision the court distinguished between indict- ments for felonies and those for misdemeanors and declared that the strictness and rigor in the construction of indictments for the defective paper an indictment for murder; or we may, guessing along the same line of oflFenses, read into the empty place in the indictment the words ' did attempt ' to kill and mur- der the deceased; or we may inter- polate the words ' did combine and conspire with John Doe and Richard Eoe ' to kill and murder the deceased, and surely, now, no one will justify the eixerciae of such power by this or any other court." See, also, Edmondson v. State, 41 Tex. 496. 2i3. State v. Holder, 3 McC. L. (S. C.) 377. 24. Jester v. State, 26 Tex. App. 369, 9 S. W. 616. 35. State v. Leach, 27 Vt. 317. See, also, Menasco v. State ( Tex. ) , 11 S. W. 898, holding that an indictment for perjury was fatally defective where the word "did" was omitted before the words " state and testify." 26. See Caesar v. State (Fla., 1905 ) , 39 So. 470, decided under Eev. St. 1892, § 2893, and holding, in con- struing an indictment for the illegal sale of liquors that the omission of the word " did " before the word " engage " was plainly a clerical er- ror, which was not a ground for re- versing a judgment of conviction, where the meaning of the language was clear. The omissioii in an inf omui- tion of the word " did " before the words " have " and " sell " is a de- fect in matter of form which does not tend to the prejudice of a. substantial right of the defendant upon the mer- its and will therefore, under a code or statutory provision providing that such a, defect does not vitiate an in- dictment or information, be regarded as immaterial. People v. Hoagen, 139 Cal. 115, 72 Pac. 836. 27. State v. Edwards, 19 Mo. 674. 226 Body of Ihdictment Generally. § 210 felonies, are not applied uniformly to indictments for mere misdemeanors, and that in indictments for the latter, intendment is often resorted to.^* § 210. Effect of erasures or alterations. — An indictment is not invalidated by the fact that an erasure has been made and new matter Avritten therein,^® provided such erasures were apparently made and new matter inserted before the indictment was acted upon by the grand jury.*° So where the printed words " with intent " and " to " were erased in an indictment charging murder in the first degree, which was drawn upon what was apparently a blank form for assault with intent to murder, and the word " did " was inserted, the court declared that as it was not claimed that the erasures or interlineations were unauthorized or made after the indictment was presented by the grand jury and that as they appeared to have been made with similar ink to that used in filling in the blank spaces and in similar handwriting, it would be pre- sumed that the alterations were made before the indictment was presented by the grand jury,^^ And where a motion which was made to quash an indictment on the ground that it alleged an impossible date was based upon the fact that the word " two " had been obliterated and blotted out and the word " eight " written over it, it was held that the court did not err in overruling the motion.^^ Again, where the name " Albert " was erased and that of " John " interlined in an indictment, it was held that this fur- nished no ground for a motion in arrest of judgment, it being declared that the accused was identified as the party who eom- 28. State v. Edwards, 19 Mo. 674, ment, a demurrer upon the ground 677. Per Rtland, J. that, for this reason, the person al- 29. Cook V. State, 119 Ga. 108, 46 leged to have been murdered is not S. E. 64, holding that where, in an suflSciently identified is without indictment for murder, the given merit. name of the person alleged to have 30. Jones v. State, 99 Ga. 46. been murdered is interlined in lieu of 31. Clemmons v. State, 43 Fla. another name which is erased, and 200, 30 So. 679. is in different ink and different hand- 32. Jacobs v. State, 42 Tex. Cr. writing from the rest of the indict- 353, 59 S. W. 1111. 227 §§ 211, 212 Body of Indictment Geneeallt. mitted the crime, and that whether he committed it in the name of Albert or John mattered nothing to justice.^^ § 211. Effect of interlineations. — Interlineations in an indict- ment, though said to be objectionable, are declared to furnish no ground for arresting judgment after a trial and verdict against a defendant,'* where the interKneations were apparently made before the indictment was acted upon by the grand jury.*' In this connection, however, it has been determined that if an indict- ment is conveniently legible, it will be presumed that interlinea- tions therein were made before or at its execution in the absence of anything appearing upon the face of the indictment, or being shown extrinsically tending to prove that they were made subse- quently.^® In an early English case it is determined that if an indictment have an interlineation, and have a caret at the proper place where the interlined words are to come in, the court will take notice of the caret and read the indictment correctly.*'' And this doctrine is cited with approval in a recent case in Georgia.** § 212. Fatal defect in charging offense— Alteration or inter- lineation — Effect of plea or verdict. — Where the grade of the offense as stated in the indictment found by the grand jury is subsequently changed by alterations therein, though de- fendant pleads not guilty after being informed of the charge and i33. State v. Turner, 25 La. Aim. before he was put on his trial, they 573. In this case it appeared that furnish no sufficient ground for ar- the accused was arraigned as Albert resting judgment after a trial and Turner but was tried and condemned verdict against the prisoner." as John Turner. See Myatt v. State, 35. Jones v. State, 99 Ga. 46. 31 Tex. Cr. 523, 21 S. W. 456. 36. French v. State, 12 Ind. 670. 34. Commonwealth v. Desmarteau, 37. Rex v. Davis, 7 Car. & P. 319, 16 Gray (Mass.), 1. Judge Dewe? 3 Bing. N. C. 524. In this case the said: " However they might have line read " One ewe sheep of the furnished a proper ground for a mo- value of one poimd," and a caret was tion to the discretion of the court for inserted between the words " ewe " quashing the indictment, had a mo- and " sheep " and the following words tion to that effect been made before were interlined, " of the price of one the party had pleaded, or perhapa pound, and one." 228 Body of Indictment Generally. § 212 goes to trial lie may on such trial prove the alterations which have been made, as the court has no jurisdiction to try him for any other offense than that which was charged by the grand jury in the indictment as filed by it.^* And where an indictment found by a grand jury was fatally defective in failing to charge that the act was done feloniously and after the grand jury was discharged the word " feloniously " was inserted therein so as to properly charge the offense it was held that after the defendant had pleaded not guilty and a verdict had been rendered against him, he might then move the court to have the indictment restored to its original form, and that when so restored there might be an arrest of judg- ment, based on such fatal defect in the original indictment.**' 39. People v. Graniee, 50 Cal. 447, changed to one for murder, so holding where aji indictment 40. State v. Vest, 21 W. Va. 796. charging onl^ manslaughter was 229 213 DEscEiPTioisr of Accused, CHAPTER IX. Desceiption of Accused. Section 213. General rule as to stating name of accused. 214. Necessity of repeating name. 215. Use of initials instead of christian name. 216. Same subject; may be controlled by statute. 217. Name may be stated under an alias. 218. Use of fictitious name; given name or surname unknown. 219. Use of name by which defendant commonly or generally known. 220. Indictment of foreigner under English equivalent of name. 221. Middle name or initial; omission or insertion of. 222. Abbreviations in stating name. 223. Stating of name differently in different parts of indictment. 224. Same subject; use of word " said." 225. Where names are idem sonaus. 226. Where two or more defendants are joined. 227. Public corporations and officers. 228. Corporations generally; member of partnership. 229. Matters of description; English statute of additions. 230. Same subject; use of words "junior" or "senior." 231. Same subject; residence of defendant. 232. Mode of raising objection on ground of misnomer. 233. Waiver of misnomer. 234. Same subject; as affected by statute. 235. Amendment to cure misnomer. 236. Same subject; statutory provisions aa to. § 213. General rule as to stating name of accused It is a general rule tkat in an indictment both the christian name and the surname of the accused should be stated.^ And a count charging 1. Burton v. State, 75 Ind. 477, so stating it; and a failure to state wherein it is said: "The law pre- it, or a reason for not stating it, may Bumes every man to have a christian be taken advantage of on a motion to name, imless the contrary appears, quash." Per Wobden, J., citing Gar- and, in an indictment or information diner v. State, 4 Ind. 632; Moore's against him, that name, as well as Crim. Law, p. 217, § 160. his surname, must be stated in full, See Campbell v. State, 10 Ind. 420; unless some reason is shown for not Donnel v. United States, 1 Morr. 230 DESCEiPTioiir OF Accused. § 214 defendant with receiving stolen goods has been held defective where it did not contain the name of the defendant in the proper place and distinctly charge him with receiving the stolen goods.^ It has, however, been decided that a person may be indicted and convicted though no name is given, where there is a description of his person, the color of his eyes and hair, his complexion, height and weight, where his name is unknown.* § 214. Necessity of repeating name. — It has been said that the name of the defendant committing the offense should be repeated to every distinct allegation, though it may be sufficient to mention it once in the nominative case in a continuing sentence.* And in an early case in Arkansas it is decided that if the surname of the (Iowa) 141; State v. Florez, 5 La. Ann. 429; State v. Evans, 128 Mo. 406, 31 S. W. 34. The christian name should be stated if known. Turner v. People, 40 111. App. 17; Commonwealth v. Perkins, 1 Pick. (Mass.) 388; and if not known that fact should be stated. Turner v. People, 40 111. App. 17. Every person is presumed to have a christian name until the con- trary is made to appear by proper averment. Gardner v. State, 4 Ind. 632. Code provision dispensing xvith necessity of averring christian name. — Under a code provision that " an error in the name of a defendant shall not vitiate an indictment, or proeeeding,s thereon, and if his true name be discovered at any time before execution, an en- try shall be made on the minutes of the court of his true name, referring to the fact of his having been in- dicted by the name mentioned in the indictment," it has been decided that a failure to set out the christiaa name will not vitiate an indictment. In this case it was said : "If the erroneous statement of the whole name of the defendant would not vitiate an indictment, certainly the omission to set out the christian name of a defendant would not, and the objection to the indictment on that account must be regarded as un- availing." Commonwealth v. Kel- cher, 3 Mete. (Ky.) 484. Per Petebs, J. 2. State v. Phelps, 65 N. C. 450. 3. Wiggins v. State, 80 Ga. 468, 5 S. E. 503. 4. State V. Hand, 6 Ark. 165, 168. Per Johnson, J. See State v. Cop- penburg, 2 Strobh. (S. C.) 273, hold- ing that the name need not be con- stantly repeated, but that when it occurs several times in the same count or sentence and is once men- tioned in full, it may be subsequently abbreviated and reference thereto made by use of the word " said " or " aforesaid." But see Commonwealth v. Hagar- man, 10 Allen (Mass), 401. 231 § 215 Description of Accused. defendant be omitted in the presenting portion of the indictment, the defect is fatal, though the full name be mentioned in subse- quent allegations in connection with relative words, referring to the name, as their antecedent, as if fully given in the presenta- tion." But in a recent case in Texas it is decided that while it would be the better practice to set out at the beginning of the in- dictment the name of the party accused, and then follow it with proper allegations defining and charging the offense against him, yet where it is made to appear that it was intended to charge defendant with the offense, and where the allegations point him out with due certainty as the party by whom it was committed, then it will not vitiate the indictment if the offense was not dis- tinctly charged against such party in the beginning thereof.' § 215. Use of initials instead of christijan name. — A person may be indicted by the initial of his christian name in connection with his surname.'' So in a case where an objection to an indict- ment was raised on the groimd that an initial was so used, the court declared " We are aware that in some of the States it has been held that an indictment setting forth by initials only the christian name of the accused is subject to a plea in abatement. We think, however, that these cases should not now be followed. They are based upon English cases of early date, and the reasons for them do not apply at the present time. In this State men are commonly known by the initials of their christian names as well as they are by those names in full. Such initials, followed by the surname in full, are held to constitute a sufficient description when used in deeds, wills, and other writings. Signatures and 5. State V. Hand, 6 Ark. 165, so where a similar conclusion is reached holding where an indictment com- in the case of an information. See menced that the grand jurors " do Jordan v. State, 60 Ga. 656. present that Hawkins , late 7. Wiggins v. State, 80 Ga. 468, 5 of," etc., and in subsequent allega- S. E. 503, holding that an indict- tions the defendant was referred to ment was sufScient where the name as Hawkins "Hand." of the accused was given as "H. 6. Curtley v. State, 42 Tex. Cr. R. Wiggins." See Eaves v. State, 113 227, 59 S. W. 44. See State v. Mai- Ga. 749, 39 S. E. 318. donado, 21 Wash. 653, 59 Pae. 489, 232 Desceiption of Accused. § 215 addressee in, this form are in mucli more frequent use than those setting forth the full names. We cannot see why the same reason by which such a statement of a name is held good in a deed should not be applied in case of a criminal indictment. If, as matter of fact, the grand jury intended to indict some person other than the one arrested and put upon trial, this can be shown imder a plea of not guilty."® So it would seem that where a person is in the habit of using initials only for his first or christian name and he is known by those initials only, an indictment against him wherein his surname is given preceded by such initials, would be sufficient.® And where the given name of an accused person is unknown it has been held proper to describe him by his surname and initials instead of his given name alleging that his " given name is to the grand jurors unknown." ^"^ And it has been decided that an indictment designating the accused by initial letters, as a baptismal name, is good after verdict. ^^ But where the de- fendant's christian name is set forth by initials only in an indict- ment it has been decided that it is subject to a plea in abatement unless it is alleged that the christian name was imknown to the grand jury otherwise than as laid in the indictment.^* And where 8. Eaves v. State, 113 Ga. 749, 755, here between church and state, and 39 S. E. 318. Per Simmons. J. no obligation on parents to baptize 9. CSty Council v. King, 4 McC. their children, this name may be as L. (S. C.) 487, wherein it was so often changed as the patronymic, and held after verdict where an indict- although we know that letters are ment against A. W. King was ob- usually the initials of a name, yet if jected to on the ground that the a person uses them and them only it christian name of the accused was is difficult to perceive how his real not given. The court said: " It surely name can be known, for if he is sued will not be contended here, that a, as Alexander William, he may say man may not take any name he they mean Andrew William, or any pleases, and if he by his own conduct other name which may begin with renders it doubtful what his real those letters." Per Colcock, J. name is, the fault is his, and let the lO. Jones v. State, 11 Ind. 357. consequences be also his. But in 11. Smith v. State, 8 Ohio, 294. truth I know no law, nor do I see 12-. Gerrish v. State, 53 Ala. 476, any reason why a man may not take wherein the court said: "However the letters A. W. for his first name, proper it may be, in the hurry of or as it is generally called, his ehiis- daily life, and on unimportant ocea- tian name; for as there is no union sions, to write one's own name, or the 233 § 216 DESCEIPTIOIf OF ACCTTSED. initials are used in place of the dbristian name of accused it has been decided that where there is a plea in abatement stating the true name of the accused and that his name is not the initials used and it appears from the evidence that he was never called by such initials, though they were in fact the initials of his name, it is error to instruct the jury that if they believed from the evidence that the defendant was known by the initials stated as much as by the name stated in the plea, the verdict must be for the State. ^* §216. Same subject — May be controlled by statute. — In some States any objection which might have been available at common law because of the use of initials instead of the christian or baptismal name does not prevail by reason of statutory pro- visions.-'* So under a statute providing that " an error as to the name of defendant shall not vitiate the indictment, or proceedings thereon, and, if his true name be discovered at any time before execution, an entry shall be made on the minutes of the court of his true name, referring to the fact of his being indicted by the name mentioned in the indictment and the subsequent proceedings shall be in the true name " ^° an indictment against several persons has been held good on demurrer where some of the parties name of others, in the shortest intel- Though it is alleged that the legible manner, it is not allowable to christian name is unknown, where do 80 in so grave and solemn an in- initials are used, yet if it appears strument as an indictment by a grand from the evidence that the true name jury under oath, which denounces the of the defendant was known to the person denominated in it as a viola- grand jury, it has been decided in tor of the law, with intent to have Alabama that there can be no eonvic- him sought out from the rest of the tion. Winter v. State, 90 Ala. 637, community and brought to punish- 8 So. 556. ment. And solicitors and grand 13. Hewlett v. State, 135 Ala. 59, juries ought to be diligent to find 33 So. 662. out and insert in their indictments 14. State v. Johnson, 93 Mo. 317, the true names of those whom they 6 S. W. 77, decided under R. S. 1879, thereby accuse." Per Manning, J. § 1821. See, also. United States v. Upham, 15. Gantt's Ark. Dig., | 1785, p. 43 Fed. 68. 405. 234 Descbiption of Accused. §§ 217, 218 "Were described by the initials of their christian names and the christian name of one of the parties was wholly omitted.^* § 217. Name may be stated under an alias. — ^Where there is a doubt as to the name of the defendant or his name is not known it may be properly averred in an indictment under an alias/^ whether the name be the christian name^* or the surname.-'® And where a person is indicted by his true name alias another name a plea that he is not now and never was known by the latter name is properly overruled, the alias being preceded by the true name.^** So in a recent case in Texas it is decided, where a person was indicted by his true name " alias " another name, that the court did not err in refusing to have the expression " alias " followed by the name given stricken from the indictment. ^^ §218. Use of fictitious name — Given name or surname unknown — A defendant may, in case his name is unknovsm, be described by a fictitious name, coupled with an averment that his true name is unknown. This rule applies where the given name of an accused person is not known, in which case he may properly be described in an indictment by his surname with an allegation that his given name is unknown.^^ But it is held that the author- 16. State V. Webster, 30 Ark. 166. Ferguson v. State, 134 Ala. 63, 32 17. Haley v. State, 63 Ala. 89; So. 760, 92 Am. St. R. 17, citing Leslie v. State (Tex. Cr. App., 1898), Evans v. State 62 Ala. 6. See, also, 47 S. W. 367. See State v. Howard, Kennedy v. People, 39 N. Y. 245. 30 Mont. 518, 77 Pae. 50, in case of 18. Haley v. State, 63 Ala. 89. an information. 19. Viberg v. State, 138 Ala. 100, That tie tme name is stated 35 So. 53, 100 Am. St. Rep. 22. eee as his alias, and that the defend- Noblin v. State, 100 Ala. 13, 14 So. ant has no alias, is not a good plea 767. in abatement. Noblin v. State, 100 20. Barnesciotta v. People, 10 Hun Ala. 13, 14 So. 767. (N. Y.), 137, affirmed 69 N. Y. 612. The word "alias" is used in 21. McCue v. State (Tex. Cr. App. an indictment as the equivalent 1907 ) , 103 S. W. 883. It appeared in of alias d>wtus, or otherwise called, this case that the accused was as well and indicates that the person re- known by the alias " Mud McCue," as ferred to bears both names laid he was by his true name, Frank Mc- under the alias, but that he is called Cue. by one or the other of those names. 22. Skinner v. State, 30 Ala. 524; 235 if 219 Description of Accused. ity to employ tMs form of expression is only permitted when the name is unknown to the grand jury.^* And it has been declared that it is only where the defendant's name cannot be discovered, that it is permitted to the State to describe him by a fictitious name, with the statement that his real name is unknown.^* And it is essential that in such a case the indictment should contain an allegation that the name of the defendant is unknown, and in some cases this is required by statute.^^ It is also essential where the true name, both christian and surname, of the defendant is imknown that he should in some manner be so described that it can be ascertained what particular person the grand jury intended to indict. So where the defendant was described as " John Doe, a Chinese person, whose true name is to the grand jurors afore- said unknown," it was declared that it clearly appeared that the name John Doe was used only as a fictitious designation, and that the grand jurors were unable to identify the person whom they were indicting, and it was held that with no other description of the defendant than this, it was not possible to say what particular Chinese person the grand jury intended to indict, and that for this reason the indictment was clearly insufficient.^^ § 219. Use of name by which defendant commonly or gen- erally known — It may be stated generally that any name by which a person is commonly called or known may be used in an indictment in place of the real name.^^ And it has been determined that an indictment is suf- ficient in which the accused is described by such a name,''* Levy V. State, 6 Ind. 281 ; Morgan v. a person is unknown, the indictment State (Tex. Cr. App. 1903), 73 S. W. should state that his name is un- 968; Wilcox V. State, 35 Tex. Cr. 631, known and give some description of 34 S. W. 958. him and assign him a fictitious name. 23. Jones v. State, 63 Ala. 27 ; 26. United States v. Doe, 127 Fed. Geiger v. State, 5 Iowa, 484. 982. 24. Gteiger v. State, 5 Iowa, 484. 27. Eaves v. State, 113 Ga. 749, 39 25. State v. Vandeveer, 21 Tex. S. E. 318. 335, holding that under the fourth 28. Wilson v. State, 69 Ga. 224, subdivision of article 335 of criminal holding it sufficient where the accused jurisprudence, if the christian name of was described as " Doc " Wilson, 236 Desceiption of Accused. ,§ 219 It is not, therefore, essential to the validity of an indictment that a defendant should in all cases be described by his surname pro- vided a name is used as a surname by which he is equally well or better known.^^ So where a person has several given names and he adopts one of them as the one by which he will be called and known it has been declared that such given name becomes part of his legal name and that he is properly described by that name in an indictment whether it stands first, or second, or third in the order of his given names. Having by such adoption become the distinctive given name of the defendant it is properly used to describe him in an indictment.*" And where a defendant's second christian name had come to be regarded as his surname and he was so known it was held that it was not material that his real surname was different.*^ And a similar conclusion has been reached where a person is indicted by a christian name by which he is called and known though it may not in fact be his real christian name.*^ though his real name was Harrison L. Wilson. State v. Brecht, 41 Minn. 50, 42 N. W. 602. Sufficiency of proof of assumed name. — ^While it is true that a per- son may acquire by reputation a name which would as certainly iden- tify him as his true name, and the as- sumed name or the one acquired by reputation, may be used in the indict- ment just as effectively to identify him as his true name, yet proof of the assumed name or the one acquired by reputation cannot be established by the statement made to a witness by a third person that his name was the one alleged in the indictment. Stallworth v. State (Ala. 1906), 41 So. 1.84. 29. Eufus V. State, 117 Ala. 131, 23 So. 144. 30. United States v. Winter, 28 Fed. Cas. No. 16743, 13 Blatchf. 276. 31. Rufus V. State, 117 Ala. 131, 23 So. 144, holding that where an in- dictment designated the defendant as " John Rufus " and the defendant in a plea of misnomer alleged that his christian name was " John Rufus," and his surname "George," that he had never been known by the name of Rufus as a surname, a replication which alleged that long before and at the time of the finding of the indict- ment, the defendant was known as well by the name of " John Rufus " as by the name of " John Rufus George" was a sufBcient response to the plea and was not demurrable. 32. Lewis v. State. 1 Head. (Tenn.) 329, holding that to a plea in abatement setting forth that the defendant was indicted by a wrong name, a replication, alleging that the defendant is called and known by the name mentioned in the presentment is good. See Commonwealth v. Gale, 11 Gray (Mass.), 320. The omission of a defendant's christian name in an indictment 237 §§ 220, 222 Desceiptiow of Accused. § 220. Indictment of foreigner under English equivalent of name. — In the case of a foreigner who is resident in this country it is held that he may be indicted under a name which is the English equivalent of his name in his native tongue and to which he had assented.** §221. Middle name or initial — Omission or insertion of. — The law knows only one christian name and the middle letter forms no part of it so that its insertion or omission makes no dif- ference and may be disregarded.** And it has been declared that if it be true that the middle name forms no part of the christian name an indictment cannot be sustained which sets out only the middle name and does not give the christian name at all.*® § 222. Abbreviations in stating name. — ^Where surnames with a prefix to them are ordinarily written with an abbreviation, it has been decided that the names thus written in an indictment are sufficient.** does not render an indictment de- murrable where it is averred that the christian name is unknown to the grand jury. Skinner v. State, 30 Ala. .524; Jones v. State, 11 Ind. 354. But see State v. Vanderveer, 21 Tex. 335. 3i3. Alexander v. Commonwealth, 105 Pa. St. 1. 34. Alabama. — Rooks v. State, 83 Ala. 79. 3 So. 720; Edmundson v. State, 17 Ala. 179, 52 Am. Dec. 169, holding that the improper insertion of the middle letter L. in the name of the accused was immaterial. This case is cited and followed to same point in Pace and Cox v. State, 69 Ala. 231, 44 Am. Rep. 513, which held that if a middle name be averred it need not be proved. Arkansas.— State v. Smith, 12 Ark. 622, 56 Am. Dec. 287. Georgia. — ^Veal v. State, 116 Ga. 589, 42 S. E. 705. Iowa. — State v. Bowman, 78 Iowa. 519, 43 N. W. 302. Missouri. — State v. Martin, 10 Mo. 391. Ohio.— Price v. State, 19 Ohio, 423. Tennessee. — State v. Hughes, 1 Swan, 261. But see Commonwealth v. Perkins, 1 Pick. (Mass.) 388. 35. State v. Martin, 10 Mo. 391. But see People v. Kelly, 6 Cal. 210, decided under a statute directing in the ease of one indicted under a wrong name, that where he gives the true name when arraigned, it should be so entered on the minutes and the pris- oner tried under his true name. 36. State v. Kean, 10 N. H. 347. See State v. Granger (Mo. 1907), 102 238 Descbiption of Accused. § 223 § 223, Stating of name differently in different parts of indict- ment. — Where a person is described in the charging part of an indictment by his correct name but in an additional averment, which may be rejected as surplusage, the name is not correctly stated, the indictment is not thereby vitiated.*'' And it has been decided that where in concluding an indictment there is an incon- sistent or repugnant clause or averment such as a misnomer of the defendant, it should be treated as mere surplusage where the de- fendant is sufficiently and clearly charged with the commission of a crime by the other averments of the indictment.^* And it is said in this connection that " 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 surplusage, it will not vitiate the indictment." *^ So where the name is stated correctly in the style of the indictment and in the charging part, an error in stating it in the formal commencement will not viti- ate the indictment, such error being clearly a clerical mis- prision.*" So where the name of the defendant is correctly stated at first a mistake in subsequently stating his christian name will not vitiate the indictment.*^ And where in the caption of the indictment the defendant was named as James A. Smith and was S. W. 498, holding that there was no decided under the Criminal Code; merit in the contention that an in- Gautt's Dig., § 1785, p. 405, and dis- formation was defective on account tinguishing State v. Hand, 6 Ark. of the abbreviation of the name of 165, 42 Am. Dec. 689. John by use of the letters " Jno." 41. Musquez v. State, 41 Tex. 226, 37. Drake v. State, 145 Ind. 210, holding, where, in an indictment for 41 N. E. 799, wherein it was said: theft, the taking was charged to be by " If a name is immaterial, that is, Amaranti Musquez and in alleging if it is unnecessary to the statement the intent he was described as the of the offense, it may be rejected as " said Aramanti Musquez," that the surplusage and will not vitiate the defendant, having been before cor- indictment." Per Monks, J. rectly described, the word " Ara- 38. Kennedy v. State, 62 Ind. 136. manti " might be rejected without af- 39. Mayo v. State, 7 Tex. App. 342. fecting the indictment. Per White, J., citing Commonwealth This ease was followed and ap- V. Hunt, 4 Pick. (Mass.) 252; United proved in Wampler v. State, 28 Tex. States V. Howard, 3 Sumn. 12. App. 352, 13 S. W. 144. 40. Phillips V. State, 35 Ark. 384, 239 |§ 224, 225 Desceiption of Accused. first referred to in tkei body of the indictment as James Smith, and subsequently his name was given as James A. Smith in the body of the indictment, it was held that the difference in the name created no uncertainty.*^ §'224. Same subject — Use of word "said," — It is not neces- sary to state the full name of the defendant more than once in the same count or sentence but it is sufficient where it has been once fully stated to repeat the surname in connection with the word " said " or " aforesaid." ** And it has been declared that where the name has been properly set out, a subsequent reference to that name, using the word " said," although the name may be spelled differently in subsequent portions of the indictment, does not vitiate it.** So the words " the said Charles Robinson " in the latter part of an indictment have been held to necessarily refer to the Charles K. Kobinson mentioned in the earlier part of the indictment.*'' § 225. Where names are idem sonans. — ^Where a plea of mis- nomer is raised it seems to be a general rule that if a demurrer to such plea raises the issue of idem sonans and the two names are pronounced substantially alike it will not generally be regarded as a misnomer which vitiates the indictment.** And in such a case 4i3. West V. State, 48 Ind. 483. that a motion to quash was rightly 43. State v. Ctoppenburg, 2 Strjobh. overruled. ^S. C.) 273. See § 214 herein. 46. Alabama. — Edmundson v. 44. Bartley v. State (Tex. Cr. App. State, 17 Ala. 179, 52 Am. Dec. 169, 1904), 83 S. W. 190. Per Davidson, so holding where the accused was in- J. See, also, Eddison v. State (Tex. dieted by the name of Edmindson and O. App. 1903), 73 S. W. 396, wherein he pleaded in abatement that his true it is declared that the name having name was Edmundson. once been properly set out, the subse- Georgia. — ^Veal v. State, 116 Ga. quent reference to it by using the 589, 42 S. E. 705, holding that Witt word " said " sufficiently designates and Wid are clearly idem sonans. the name as set out in the first in- Biggers v. State, 109 Ga. 105, 34 S. stance. E. 210, applying the doctrine of idem 45. Commonwealth v. Robinson, sonans where defendant was indicted 165 Mass. 426, 43 N. E. 121, holding by the name of " Biggers " and 240 Desckiptioij of Accused. § 225 the court may determine as a matter of law whether the names are idem sonans." But the question whether one name is idem sonans with another is said not to be a question of spelling, but of pro- nunciation, depending less upon rule than upon usage, which when it arises in evidence on the general issue, is for the jury and not for the court.** In this connection it is said in a case in Alabama " though this is strictly a question of pronunciation, when raised by demurrer it may be treated as a question of law ; but, in such case, the judgment of the court should express the conclusion of law from the facts or rules of which judicial notice may be taken. When there is no generally received English pronunciation of the names as one and the same, and the difference in sound is not so slight as to be scarcely perceptible, the doctrine of idem sonans cannot be applied without the aid of extrinsic evidence, unless, when sound and power are given to the letters, as required by the principles of pronunciation, the names may have the same enimcia- pleaded in abatement that his true name was " Bickers." Kansas. — State v. Haist, 52 Kan. 35, 34 Pac. 453, holding the two names " Barbra " and " Barbara '' are idem sonams. XXissonri. — State v. Hutson, 15 Mo. 512, holding that Hutson for Hudson is not a misnomer. Texas. — ^Boren v. State, 32 Tex. Cr. 637, 25 S. W. 775, wherein the prin- ciple of idem sonans was applied in refusing to quash an indictment be- cause " Israel " was written " Isreal." 47. Hunkers v. State, 87 Ala. 94, 6 So. 357; Veal v. State, 116 Ga. 589, 42 S. E. 705; Commonwealth v. Warren, 143 Mass. 568, 10 N. E. 178, wherein it was said that this class of eases is governed! by the following rule : " If two names spelt differently, necessarily sound alike, the court may as matter of law, pronounce them to be idem sonans; but if they do not necessarily sound alike, the question whether they are idem sonans is a question of fact for the jury." Per Gabdneb, J., citing Queen v. Davis, 4 New Sess. Cas. 611, 5 Cox C. C. 237, 2 Den. C. C. 233, in which ease the judge ruled as a matter of law that " Darius " and " Trius " are idem, sonans. State v. Havely, 21 Mo. 498, holding that a court may say as a matter of law upon demurrer to a plea in abatement to an indictment, that "Owens D. Havely" and " Owen D. Haverly " are idem sonans. State V. Blankenship, 21 Mo. 504, fol- lowing the preceding ease and holding that Blankenship and Blackenship are idem sonans as matter of law. 48. Commonwealth v. Donovan, 13 Allen (Mass.), 571, citing Common- wealth V. Mehan, 11 Gray (Mass.), 322, 323; Commonwealth v. GUI, 14 Gray (Mass.), 400. 241 16 § 226 Desceiption of Accused. tion or sound. . . . If by local usage the names liave the same pronunciation, it becomes a question of fact which must be referred to the jury." *® But though the defendant may have a right to submit to the jury, as a question of fact, whether the name proved is idem sonans with that laid in the idictment, he should claim the right on the trial and by omitting to do so he thereby waives all claim to insist on the objection on appeal."* § 226. Where two or more defendants are joined — ^Where an indictment is returned against two or more persons it should ap- pear with such certainty on the face of the indictment how many persons were intended that no mistake can occur. And though it may appear by other words of description that more than one person was evidently intended yet if the names are so written that the indictment does not show what the name of each person is, a plea in abatement will be held good.®-' Ordinarily the conjunction " and " should be used to show this fact, but though this conjunc- tion is omitted it has been held sufficient where a comma is placed between the names.*^ And an indictment will be defective so far as more than one person is concerned where instead of the word " and " the word " alias "is used, apparently indicating that only one person is indicted. So where two names were mentioned in an indictment but instead of the conjunction " and " between the names the word " alias " was used it was decided, where two per- sons appeared and pleaded not guilty that the conviction of the one who answered to the name after tbe word " alias " could not be sustained.^^ 49. Hunkers v. State, 87 Ala. 94, further words of description "labor- 96, 6 So. 357. Per Clapton, J. In ers " and " possessors and occupiers this case the question was whether of a house," etc. Hunkers and Honcus were idem 52. Hash v. Commonwealth, 88 Va. sonwns. 172, 13 S. E. 398. See State v. Toney, 50. Commonwealth v. Gill, 14 Gray 13 Tex. 74. (Hass.), 400. 53. State v. Leonard, 7 Mo. App. 51. State V. Toney, 13 Tex. 74, so 571, holding where an indictment was holding where the Indictment was against James Ferguson alias Thomas against Edward Toney, Joseph Scott, Leonard alias Alison, and James Fer- to which names were added the guson and Thomas Leonard were ar- 242 Desceiption of Accused. §§ 227, 228 § 227. Public corporations and officers. — In an indictment against a town it is not a good ground for a motion in arrest of judgment that the inhabitants are not desco-ibed by their proper name.®* And where pending an indictment against a town the name of the town was changed by the Legislature a refusal to quash the indictment for that cause was held proper.^® Again, where persons named in an indictment for maintaining a nuisance are described as the burgess and councilmen of a borough, naming the borough, it is decided that the persons so named are indicted in their corporate capacity, and not as individuals.^® But in an indictment against a public officer it has been decided that it is essential that the office held by him should be specified.®'^ And in the case of an information against a sheriff for misconduct and misdemeanor in office which contained no allegation as to what county he was sheriff of, it was held that the information was insufficient.®* §228. Corporations generally — Members of partnership In an early English case it is determined that a corporation may be indicted by its corporate name for breaches of duty imposed upon it by law, such as the failure to execute works pursuant to a statute but not for felony or crimes involving personal violence.®^ Taigned and each pleaded not guilty. As to necessity and sufficiency upon which issue was joined and a of desicription of public officers, severance granted to Thomas Leonard see United States v. Watkins, 5 alias Alison from his co-defendant, Cranch C. C. 441; United States v. that the conviction of Thomas Leon- Benner, Baldw. 234; Wright v. State, ard could not be sustained. 18 6a. 383 ; Binger v. People, 21 111. 54. Commonwealth v. Dedham, 16 App. 367. Mass. 141, wherein it is declared that Indictments against school dl- misnomer is only matter of abatement rectors. — As to sufficiency of descrip- and is not a good cause for arrest tion in, see Commonwealth v. Brown, even in criminal prosecutions. 23 Pa. Super. Ct. 470; Commonwealth 55. Commonwealth v. Inhabitants v. Ferguson, 8 Pa. District E. 120. of Phillipsburg, 10 Mass. 78. 58. State v. Daniels, 65 Kan. 861, 56. Commonwealth v. Bredin, 165 70 Pac. 635. Pa. St. 224, 30 Atl. 921. ' 59. Queen v. Birmingham and 57. United States v. Borneman, 36 Gloucester Railway Co., 43 Eng. Com. Fed. 257. Law, 708, 3 Ad. & Ell. 223, 9 C. & 243 § 228 Description of Accused. In the case of an indictment against a corporation it is not neces- sary to state the time and place when and where the defendant be- came a corporation.*'"' So in an information against a railroad company it has been held sufficient to describe the company by its name and as " a corporation existing under and by virtue of the laws of this State, duly organized and doing business."®* Again an indiotment which charges the commission of an offense by the de- fendants coupled with the further description that they are mem- bers of a private corporation is not subject to the objection that it is uncertain whether they are charged as individuals or as members of the corporation.*^ In the case of a partnership it has been de- cided that the members cannot be indicted by their firm name but that the indictment should be against them as individuals.*' P. 409. See Rex v. Mayor, etc., of Stratford-upon-Avon, 14 East. 348. But see Anonymous, 12 Mod. 559, the report of which is as follows: "Note: Per Holt, Chief Justice. A corpora- tion is not indictable, but the partic- ular members of it are." 60. State v. Vermont Central R. Co., 28 Vt. 583, wherein it was so held in the case of an information and the court said : " It was no more necessary that the information should state the time and place, and when and where, the defendants be- came a corporation, than it would be to state the time and place of the birth of a natural person. A distinct and positive averment of the exist- ence of an artificial person is usually all that is required." Per Bennett, J. 61. State V. Vermont Central R. Co., 28 Vt. 583. 62. Bamett v. State, 54 Ala. 579, so holding where an indictment charged the defendants " being mem- bers or partners of a private company or corporation, known as the Talla- hassee Manufacturing Company," with a certain offense. The court said: " The allegation that they were mem- bers or partners of a private corpora- tion, or association, if it is not mere surplusage, serves only to point out the capacity in which they were act- ing in the commission of the offense — that they were engaged in transacting business as corporators, or as mem- bers of an association. That they were acting in that capacity does not relieve them from criminal liability, nor aggravate nor mitigate the of- fense. If the corporation or associa- tion would be indictable for the of- fense, the defendants are charged as the immediate and active agents in its commission, and are also indictable. The indictment directly and without ambiguity charges them individually with the offense. If it had charged the corporation or association, it would have been by its corporate name." Per Brickell, J. Examine People v. Clark, 10 N. Y. Supp. 642, 10 Ry. & Corp. L. J. 28. 63. Peterson v. State, 32 Tex. 477. 244: Desceiption or Accused. § 229 §229. Mutters of description — English statute of additions. — By an early English statute, known as the statute of additions, it was provided that in indictments there should be an addition to the name of the defendant of his estate, degree or mystery.®* This statute which was recognized as a part of the common law in some jiirisdictions in the United States has not been generally adopted in most of them,®^ and it is a general rule that words, terms or statements which are descriptive of the status of the defendant are See Eawls v. State (Tex. Cr. App. 1905), 89 S. W. 1071. 64. The English statute, 1 Hen. V, ch. 5, provided " that in every writ of actions personal, appeals, and indictments, and in which the exigent shall be awarded in the names of the defendants in such writs original, ap- peals and indictments, additions shall be made of their estate, or mystery, and of the towns, or hamlets, or places, and counties, of which they were or be or in which they be or were conversant." The object of this statute was to enable the person against whom the process ran, to be identi- fied and thus prevent oppressions that had formerly resulted from want of certainty of description. Lanckton v. United States, 18 App. Cas. (D. C.) 348, 365, citing 2 Reeves Eng. Law, Finlason, 519; 4 Black. Com. 306. Constmction of ivords "estate or mystery" in statute. — In con- struing this statute it has been de- clared that estate and degree mean the same thing, the defendant's rank in life, and that mystery means the defendant's trade, art or occupa- tion, such as merchant, mercer, tailor, painter, clerk, schoolmaster. husbandman, laborer or the like. State V. Bishop, 15 Me. 122, citing 2 Hawk., c. 23, § 111. 65. In Maine this statute is said to have been adopted as a part of our common law. State v. Bishop, 15 Me, 122. And in New Hampshire it has been held that the statute of addi- tions is a part of the common law of that state. State v. Moore, 14 N. H. 451, citing State v. Rollins, 8 N. H. 550. And in a case in Pennsylva- nia it is said to have been adopted and to be in force in that state. Commonwealth v. Murphy, 9 Lane. L. Rev. 294. In Kentucky, by an early statute, the necessity of add- ing the degree or mystery of defend- ant was confined to indictments in which the exigent might be awarded or outlawry pronounced. Common- wealth V. Rucker, 14 B. Mon. (Ky.) 228, decided under act of 1896. And in Rhode Island, while this Englisli statute was recognized in the early legislation of that state, it has been decided that in view of the course of subsequent legislation, any addition of the degree or mystery was unnec- essary and could be safely omitted. The court, however, held that the ad- dition of a false degree or mystery was a, fatal error upon a plea in 245 229 Desceiption of Accused. not material and theredfore though, there may be an error therein the indictment is not on that account vitiated.** And especially will matter of description not be considered as vitiating the indict- ment vyhere a statute prohibits the quashing of an indictment or arresting judgment for any omission or misstatement of title, occu- pation or description if such omission or misstatement do not tend to the prejudice of the defendant, and it is apparent that the term used does not in any maimer prejudice the defendant.*^ But where a statute creating an offense applies to persons of a certain class or status only and it is sought to indict a person under such statute it is essential to the validity of the indictment that there should be an averment of such facts as show that the accused was a person of the class or status designated.** Where, however, a description is given it should not be one which is untrue and cal- abatement. State v. Daly, 14 R. I. 610. In Indiana it has been decided that this statute is not applicable to prosecutions in that state. State v. McDowell, 6 Blackf. (Ind.) 49. And in a case in the District of Columbia while it is said that the existence of this statute was recognized in Ken- tucky, Maine, New Hampshire, Penn- sylvania and Virginia (citing the following cases: Report of Judges, 3 Binney (Pa.), 595, 614; Common- wealth V. Jackson, 2 Grant's Cas. 262; State v. Moore, 14 N. H. 451; State V. Bishop, 15 Me. 122; State V. Nelson, 29 Me. 329, 334; Common- wealth V. Sims, 2 Va. Cas. 374; Com- monwealth V. Clark, 2 Va. Cas. 401 ; Commonwealth v. Rucker, 14 B. Mon. 228), it is held that it is not in force in the District of Columbia. Lanckton v. United States, 18 App. Cas. (D. C.) 348. 66. Commonwealth v. Scott, 10 Gratt. (Va.) 749, holding in the case of a presentment which described the defendant as a free negro, that, as for the offense for which he was indicted was one for which persons, Indians, and free negroes could be prosecuted and punished in the same manner, a plea that the defendant was an In- dian and not a free negro was an im- material plea which was properly ex- cluded. The court said: "The de- scription of the defendant as a free negro does not enter into the nature of the offense or vary the mode of punishment." Per Alien, J. See Frisbie v. United States, 157 U. S. 160, 39 L. Ed. 657, 15 Sup. Ct. 586; Jeffries v. State, 39 Ala. 655; State V. Guest, 100 N. C. 410, 6 S. E. 253. 67. State v. Nelson, 29 Me. 329, holding under a statute so providing that if an indictment against a feme covert describes her as " matron " the error, if it be one, is not a suffi- cient cause for quashing the indict- ment or arresting the judgment. See Hammond v. State, 14 Md. 135. 68. United States v. McCormick, 1 Cranch C. 0. 193. 246 Desceiption of Accused. §§ 230, 231 culated to cast approbium upon the defendant and to prejudice him in the minds of the juiy. So where it was contended that the description was of such a character and the demurrer admitted the untruth of the description it was held that a plea in abatement was good.** §230. Same subject — Use of words "junior" or "senior." — Where there are two persons of the same name who occupy the relation to each other of father and son it is not essential to the validity of an indictment against one of them that the defendant should in addition to his name be further described by the addition of the word " junior " or " senior."''*' Such words are a mere matter of description.'^^ So it has been said that the word junior is no part of the name of a person. " It is a mere description of the person, and intended only to designate between different persons of the same name. It is a casual and temporary designation. It may exist one day and cease the next."^^ § 231. Same subject — Residence of defendant. — It is not nec- essary as a general rule that the residence of the defendant should be stated in the indictment.''* So the addition of the county of the defendant's residence is mere matter of form, and the failure to aver it does not affect the validity of an indictment.''* And in England the addition of residence was considered unnecessary, except in cases where process of outlawry could issue and the neces- sity for it in any case rested upon their statute.'''' 69. State v. Bishop, 15 Me. 122, 76 N. E. 544; State v. Best, 108 N. holding that in an indictment on the C. 747, 12 S. E. 907. statute prohibiting the sale of lottery ^3 p^^,^ ^ ^^^jjj^^^ ^ ^^^^^ tickets a description of the accused y.) 549. See, also, People v. Olive- as a lottery vender, when his proper ^j^^ ^^^ ^^j g^g^ gg p^^ ^^^_ p^^_ description was a broker, was a good j^^^^^^^^^ ^ Perkins, 1 Pick, cause for abating the indictment. ^^^^^^^ 333. g^^^^ ^ ^^^^^ ^^g jj_ See State v. Daly, 14 R. I. 510. ^ ^^^ 12 S E 907 70. Steinberger v. State, 35 Tex. ' „ ' . . ,. , Cr. 492, 34 S. W. 617, holding to /»• ^^^^^ ^- ^^"^l' ^9 La. Ann. this effect where this question was 415, 22 So. 415. raised in respect to an information. 74. Morgan v. State, 19 Ala. 556. 71. State V. Simpson (Ind. 1906), 75. Morgan v. State, 19 Ala. 556. 247 §§ 232, 233 Desoeiptioit of Accused. § 232. Mode of raising objection on ground of misnomer. — The proper method of maJdng an objection on the ground of mis- nomer is by a plea in abatement or motion to quash.'^* A plea in abatement on this ground should state the full name of the defend- ant, it being declared that this is an essential requisite of such a plea.^'' § 233. Waiver of misnomer. — A misnomer in the statement of the defendant's name in an indictment may be waived by a plea of not guilty,''* as it may also by a plea of guilty,^® as by either 76. Harris v. People, 21 Colo. 95; Uterburgh v. State, 8 Blackf. (Ind.) 202; Turns v. Commonwealth, 6 Mete. (Mass.) 244, wherein it was said: "If, on his arraignment, he does not plead in abatement, he ad- mits himself rightly designated by the names stated." Per Shaw, C. J. See People v. Kelly, 6 Cal. 210; State V. McGregor, 41 N. H. 407. See Price v. State, 67 Ga. 723, holding that an objection that an in- dictment names the defendant, but afterwards in charging the offense leaves a blank instead of renaming him, should be taken advantage of by special demurrer, and that otherwise it is not a good ground for a new trial after verdict. Waiver of plea. — A plea in abatement, because of the misnomer of the defendant, regularly precedes a demurrer, or a plea to the matter of the indictment; and is waived, if it is regularly pleaded, by the subse- quent interposition of a demurrer, or other pleading, which, in effect, admits that the defendant is the person named or charged. Haley v. State, 63 Ala. 89. Per Bbickell, J. See following section. 77. State v. Hughes, 1 Swan (Tenn.) 261. A plea of misnomer sbonld not only state what the true name of the accused is, but should further al- lege that he was not known and called by the name under which he was indicted. Wiggins v. State, 80 Ga. 468, 5 S. E. 503; Wilson v. State, 69 Ga. 224. 78. Alabama. — Verberg v. State, 137 Ala. 73, 34 So. 848, 97 Am. St. E. 17, wherein it was said: "His plea of not guilty was an admission that the name by which he was indicted was his true name and a waiver of the misnomer.'' Per Tyson, J. Wells V. State, 88 Ala. 239, 7 So. 272. Arkansas. — State v. Webster, 30 Ark. 166, 170. Missonri. — See State v. Johnson, 93 Mo. 317, 6 S. W. 77. New Hampsliire. — State v. Thompson, 20 N. H. 250, holding where the complaint was against a person by the name of Cahew, his name being Cahill, and he appeared and answered without objection to the name of Cahew, having been ar- rested by that name, it was too late to take the exception on the trial. 248 Desckiption of Accused. § 234 of these pleas he is regarded as having admitted the correctness of his name in the indictment. So it has been said in this connection : " If one be indicted by a wrong christian or surname, or addition, and he plead to that indictment not guilty, or answer to it by that name on his arraignment, he shall not be received afterward to plead misnomer or falsity of his addition, for he is concluded and estopped by his plea by that name; and of that estoppel the jailer and sheriff, that do execution, shall have advantage. Therefore, he that will take advantage of the misnomer of his dhTistian name, surname, or addition, must do it by motion to quash, or plea in abatement, on his arraignment; and the entry must be special."*" So where one is indicted by a name other than his true one, if he is sometimes called by it, answers to it when called, and makes an appearance in court demanding relief under it, an objection that he was indicted by a name other than his true name will not be sustained.*^ In such a case it is decided that no advan- tage can be taken of the misnomer on the trial either by the intro- duction of evidence showing such misnomer or by a request for instructions to the jury or otherwise.*^ § 234'. Same subject — As affected by statute. — By statute in some States it is expressly provided when the defendant may avail himself of the right to object to an indictment on the ground of misnomer. So under an early statute in Iowa it was provided that upon arraignment, the accused, if the name by which he is indicted is not his true name, must then declare what his true name is, or New York. — People v. Smith, 1 Sontli Carolina. — State v. Thomp- Park. Cr. R. 329. son, Chevea L. (S. C.) 31. Pennsylvania. — Commonwealth v. Texas. — ^Neimann v. State (Tex. Jackson, 1 Grant's Cas. (Pa.) 262, Cr. App. 1903), 74 S. W. 558. wherein it is said that "after a plea 79. State v. Johnson, 93 Mo. 317, of not guilty and a trial on the 321, 6 S. W. 77. merits, it is too late for the defend- 80. State v. McGregor, 41 N. H. ants to object, that their addition of 407. Per Fowi/EB, J. degree, mystery, and residence are 81. State v. Pierre, 39 La. Ann. omitted or misstated." Per Lewis, 915, 3 So. 6. C. J., citing 1 Ch. Cr. L. 202. 82. Verberg v. State, 137 Ala. 73, 34 So. 848, 97 Ann. St. R. 17. 249 § 235 Dbsceiption of Accused. be proceeded against by the name in the indictment, and that if he give no other name or give his true name he is thereafter pre- cluded from objecting to the indictment upon the ground of being therein improperly named.** And a similar statute has been in force in Texas.** § 235. Amendment to cure misnomer. — ^In case of a misnomer or error in the description of a person an amendment may be per- mitted for the pnirpose of correcting such misnomer or error.** So it has been decided that when the court ascertains that the de- fendant has been indicted under a wrong name, it may at the trial of the cause, without a plea in abatement, order his correct name to be entered of record, and proceed with the cause.** So where a woman charged with the murder of her husband was described as " the wife of " the deceased the judge at the trial ordered the description to be amended by striking out the word " vdfe " and inserting the word " widow." *^ And where in an indictment 83. State v. White, 32 Iowa 17, construing Iowa Eev. St., §§ 4687, 4688, and holding that under this statute the objection that the defend- ant was wrongly named in the indict- ment could not be made for the first time after arraignment and trial. 84. Wilcox V. State, 31 Tex. 587, construing Paschal's Dig., Art. 2937, and holding that even in a capital case the defendant could not be heard, after arraignment, in denial of his true name having been set forth in the indictment. 85. People v. Kelly, 6 Cal. 210; Burroughs v. State, 17 Fla. 643; Louis V. Commonwealth, 16 Ky. Law Rep. 284; Shiflett v. Commonwealth, 90 Va. 386, 18 S. E. 838. But see MoGuire v. State, 35 Miss. 366, 72 Am. Dec. 124, wherein it is decided that the court has no power to amend an indictment, by correcting a mistake in the christian name of the defendant, without the consent of the grand jury who found and re- turned the indictment into court. Commonwealth v. Buzzard, 5 Grat. (Va.) 694. In this case it appeared that by mistake a wrong name had been inserted in an indictment for misdemeanor, though the record of the court and the indorsement on the indictment showed the correct name, and it was held that the indictment could not be amended by striking out the wrong name and inserting the name of the person intended. An information may be lo amended. — State v. Cooper, 69 Kan. 382, 76 Pac. 845; State v. Pipes, 65 Kan. 543, 70 Pac. 363; State v. Mc- Lain, 43 Kan. 439, 23 Pac. 651; State V. Murphy, 55 Vt. 547. 86. Harris v. People, 21 Colo. 95. 87. Regina v. Orchard, 8 C. & P. 565. 250 Desceiption of AcctrsED. § 236 there is a blank for tlie given name of the defendant it has been decided that it may be filled after the beginning of the trial espe- cially when the defendant has been arraigned by his full name and the full name appears on the back of the indictment.** §236. Same subject — Statutory provisions as to. — In some States an amendment for the purpose of curing a misnomer may be permissible under express provisions of the statutes or code.*® 88. State v. Matthews, 111 La. 962, 36 So. 48. 89. Orr v. State, 81 Miss. 130, 32 So. 998, holding that under Miss. Cr. Code, 1892, § 1435, where the clerical misprision in this respect is perfectly manifest, the indictment may be amended without the consent of the grand jury. Hubbard v. State, 62 N. J. L. 628, 43 Atl. 699, decided under Gen. Stat., p. 1128, which provided " that no indictment shall be abated by reason of any dilatory plea, or al- legation of misnomer of the party of- fering such plea, but if the court shall be satisfied by affidavit or otherwise, of the truth of such plea or allega- tion, the court shall forthwith cause the indictment to be amended accord- ing to the truth." Colter v. State, 41 Tex. Cr. 78, 51 S. W. 945, decided under Tex. Code Cr. Proc, Art. 540, which provided that, " If the defend- ant, or his counsel for him, suggest that he bears some name different from that stated in the indictment, the same shall be noted upon the minutes of the court, the indictment corrected by inserting therein the name of the defendant as suggested by him- self, the style of the cause changed so as to give his true name, and the cause proceed as if the true name had been first recited in the indictment." '.Under this statute an error in the name in the charging parts may be corrected as well as such an error in the formal parts. Sinclair v. State, 34 Tex. Cr. 453, 30 S. W. 1070, decided under Tex. Code Cr. Proc, Art. 513. Myatt V. State, 31 Tex. Cr. 523, 21 S. W. 256. In Alabama it was provided by Code that an indictment could be amended " with the consent of the de- fendant, where the name of the de- fendant is incorrectly stated, or where any person, property, or matter therein stated is incorrectly de- scribed." Code, 1886, § 4389. In con- struing this provision it was decided that an indictment can be amended by correcting a misnomer, only "with the consent of the defendant," and that this consent must be affirmatively shown by the record and will not be inferred from mere silence or failure to dissent. The court said: "It is our opinion that the record should show affirmatively that the consent of the defendant was given to the amendment. Mere silence, or failure to object, ought not to operate as a forfeiture of the defendant's right to be tried on the indictment in the form it has been framed by the grand jury. 251 § 236 Desceiption of Accused. And a statutory or code provision that where the accused is in- dicted under a wrong name, and he gives his true name when ar- raigned, it shall be so entered on the minutes and the prisoner tried under his true name is not in violation of a constitutional provision that no citizen shall be held to answer any criminal charge except upon a presentment by the grand jury. Such a provision in the constitution is held not to require that the true name of an accused person shall be used.®" So in an early case in California it is decided that the clause of the constitution which provides that no citizen shall be held to answer any criminal charge except upon a presentment by a grand jury, was intended to pro- vide that the individual charged should be first indicted or pre- sented by a grand jury and that the use of the name is only designed to identify the person. The court said : " Of what con- sequence is it, at the present day, whether the accused be charged by one name or another, except to identify his person, unless it be that he may not be put on his trial a second time by a different name, for the same offense, a consequence which is easily avoided by plea, or giving his true name on his arraignment. The consti- tution directs that the accused should be presented by indictment ; not the accused by his true name, but the party or person him- self.""^ It would be an unsafe rule to infer being declared under the provision of consent from mere silence on the part the Texas Code of Criminal Procedure of the defendant in such cases, and that the same course of procedure is such a, practice would not be in har- to be pursued. Wilson v. State, 6 mony with our past rulings on other Tex. App. 154, citing 4 Tex. App. 41, questions of an analogous character." and construing Code of Cr. Proc, Art. Shiff V. State, 86 Ala. 454, 4 So. 419. 469. Per SOMEEVIIXE, J., citing Flanagan 90. People v. Kelly, 6 Cal. 210, con- V. State, 19 Ala. 546; Spioer v. State, struing Const., Art. 1, § 8, and § 273 69 Ala. 159; Sylvester v. State, 71 of Cal. Crim. Code. Lasure v. State, Ala. 17. 19 Ohio St. 43. See State v. Schricker, Statute applies to informa- 29 Mo. 265. tions. — Such a statute or code provi- 91. People v. Kelly. 6 Cal. 210. Per sion has been held to apply to infer- Mubbay, J. mations as well as to indictments, it 252 Chaeging the Offense. CHAPTER X. Chabginq the Offense — Genekal Ettles and Peinciples. Section 237. Constitutional guaranty as to nature and cause of accusation. 238. Legislature can not deprive accused of constitutional right. 239. Generic term felony should not be used. 240. Necessity of using technical words. 241. Facts and circumstances should be stated; general rule. 242. Object in requiring particularity. 243. Facts need not be stated in minute detail. 244. Minor circumstances need not be stated. 245. Should use direct and positive averments. 246. Supplying omissions by intendments or implication; general rule. 247. Same subject; illustration. 248. Same subject; indictments for murder or manslaughter; neces- sity of averments, as to death. 249. Same subject; ofifenses under a statute. 250. Necessity as to certainty; general rule. 251. Highest degree of certainty not required. 252. Statutory provisions as to setting out facts and circumstances certainty. 253. Statutes requiring less strictness in pleading. 254. Where crime consists of series of acts. 255. Where crime consists of series of acts — continued. 256. Repugnancy; generally. 257. Repugnancy; application of rule. 258. Repugnancy; rejection of averment as surplusage. 259. Indictment must not charge disjunctively. 260. Disjimctive averments; surplusage. 261. Disjunctive averments fatal; instances. 262. Disjunctive averment not fatal; instances. 263. Surplusage does not vitiate. 264. Surplusage may be rejected. 265. Same subject; application and illustration of rule. 266. Same subject; application and illustration of rule continued. 267. Surplusage ; power of court to reject matter as ; what may not be rejected. 268. Use of participial form. 269. Use of videlicet. 270. Averment that matters are unknown to grand jury. 253 § 237 Chakging the Offense. 271. Same subject; rule illustrated. 272. Matter of inducement. 273. Matters necessarily implied. 274. Legal conclusions. 275. Legal conclusions; application of rule. 276. Matter of which court will take judicial knowledge. 277. Matter of evidence. 278. Matter of defense. 279. Matter of defense; rule illustrated. 280. When question as to sufSciency of charge may be raised. 281. Same subject continued. 282. Same subject; defects caused by verdict. 283. Same subject; application of rule. 284. Same subject; effect of statutory provisions. 285. Bill of particulars; right to generally. 286. Matter of requiring bill of particulars is in discretion of court. 287. Bill of particulars not part of indictment; effect of granting motion for. §, 237. Constitutional gU2ir,anty as to nature and cause of accusation. — ^By the eonstitutioiii of the United States and also generally by the constitutions of the several States it "is provided that the accused is entitled tO' demand the nature and. cause of the accusation against him.-' The object of this constitutional guar- anty, which it is held cannot be waived,^ is that the accused may 1. TJnited States. — ^U. S. Const., State v. Doty, 5 Oreg. 491. Amend. 6. South Dakota. — S. D. Const., § Alabama.— Bill of Rights, §§ 10, 7, Art. 6; State v. Burchard, 4 S. D. 12; Noles v. State, 24 Ala. 672. 548, 57 N. W. 491. Kentncky. — Ky. Const., § 12, Art. Tennessee. — Tenn. Const., § 9, 13; Conner v. Commonwealth, 13 Art. 1; Sizemore v. State, 3 Head, Bush. 714. 26. Mississippi.— Miss. Const., § 10, Vermont.— Vt. Const., Art. 10; Art. 1; Newcomb v. State, 37 Miss. State v. Webber, 78 Vt. 463, 62 Atl. 383. 1018. Nebraska.- Neb. Const., § 11, 2. Newcomb v. State, 37 Miss. Art. 1 ; Moline v. State, 67 Neb. 164, 383, holding that a constitutional 93 N. W. 228. provision securing to an accused per- Wortt Carolina. — No. Car. son the right " to demand the nature Const., § 2, Art. 1; State v. Shade,, and cause of the accusation against 115 N. C. 757^ 20 S. E. 537. him" cannot be waived or surren- Oregon. — Bill of Rights, § 11;. ered by him, and that if an indict- 254 Chaeging the Offense. § 238 be informed of the precise offense for which he must answer and thus be enabled to meet and defend against that particular accusa- tion when called upon to do so.* But it has been declared that this constitutional provision does not require that the accused shall have a right to a specific and detailed statement of the charge against him, the requirement being only that he shall be informed of the nature of the charge.* § 238. Legislature can not deprive accused of constitutional right. — A statute attempting to deny an accused person the right to demand the nature of the charge against him would be void as it is not in the power of the Legislature to deprive one accused of crime of the right to demand information of the nature of the crime which he is charged with having committed.^ So where the constitution of a Stat© contains a clause of this nature the Legis- lature has no power to provide by statute that a, person indicted for an offense consisting of one state of facts may be tried and convicted under that indietmeoit of an offense consisting of a dif- ferent state of facts.® And a statute providing that in an indict- ment does not contain such a descrip- _ People, 39 Mich. 357. Per Camp- tion of the ofifense as to notify the.^eBELL, J., citing Brown v. People, 29 accused of the nature and cause of ) Mich. 232 ; People v. Marion, 28 the accusation against him" it is a Mich. 255; People v. Olmstead, 30 nullity and may be objected to at any Mich. 431. time. " It is a sacred right to the ac- As to waiver of right to in- cused that he may know from the in- dictment, see §§ 31-33 herein. dietment of what he is charged and 3. Moline v. State, 67 Neb. 164, 93 te prepared to meet the exact charge N. W. 228. presented against him." State v. The nJes of criminal pleading Morgan, 112 Mo. 202, 20 S. W. 546. are framed on the supposition pgj. Bi^ck J. that accused persons may he in- nocent, and they cannot be con- *" ^^SS^ ^- ^^^' ^^^ I°"«* ^ stated. ing, according to the constitutional 5- Riggs v. State, 104 Ind. 261, 3 requisition, enough to inform an in- N. E. 886. nocent man of the facts intended to 6. Conner v. Commonwealth, 13 be shown against him. Chapman v. Bush. (Ky.) 714. 255 § 239 Chaeging the Offense. ment thereunder it shall not be necessary to charge the particular felony whioli it was the object or purpose of the persons combining to commit is held to be unconstitutional, against natural right and void.'' But a statutory or code provision that in an indictment against an accessory " no other facts need be alleged in any indict- ment or information against such accessory " (an accessory before the fact) " than are required in an indictment or information against his principal " is not in violation of the provisions of the sixth amendment to the constitution of the United States, which provides, among other things, that in all criminal prosecutions the accused shall be informed of the nature and cause of the accusation against him.® And in the case of an indictment for the offense of appearing in a public place a code provision which dispenses with any more particular designation of the place than " in a public place " is held not to be violative of the provision of the bill of rights securing to a defendant the right to be so informed.* And it is also decided that such a provision of the constitution is not violated by a statute providing that in an indictment or in- formation it shall be sufiBcient to describe money, bank bills or notes as money merely without specifying any particular coin, note, bill or currency.^" i§ 239. Generic term felony should not be used The use of the generic term felony instead of naming the particular offense it is intended to charge is said to be inaccurate and objectionable," 7. Miller v. State, 79 Ind. 198, eit- sion of a felony, whether th^ di- ing Scudder v. State, 62 Ind. 13; rectly commit the act constituting State V. McKinstry, 50 Ind. 465; the oflfense, or aid and abet in its Landringham v. State, 49 Ind. 186. commission, or, not being present, 8. People V. Nolan, 144 Cal. 75, 77 have advised and encouraged its com- Rae. 774, construing § 971 of Penal mission, are principals in any crime Code, as amended in 1880, which fur- so committed. ther provided that the distinction be- 9. Walker v. State (Ala. 1907), 43 tween an accessory before the fact So. 188. and a principal and between princi- 10. Randall v. State, 132 Ind. 539, pals in the first and second degree, in 32 N. E. 305. cases of felony is abrogated, and that 11. Johnson v. State, 36 Ark. 242; all persons concerned in the commia- Lacefield v. State, 34 Ark. 275. 256 Chaeging the Offense. § 240 and in one case is spoken of as gross error.^^ But thougli such term is used and no name given yet if the particular offense in- tended to be charged is made distinct and certain by the statement of the facts and circumstances of its commission, an indictment ■will be held good.^^ § 240. Necessity of using technical words. — It is said by Blackstone that " in some crimes particular words of art must be used, whioh are so appropriated by the law to express the precise idea which it entertains of the offense, that no other words, how- ever synonymous they may seem, are capable of doing it." ^* But words which are not of this character and the use of which is not essential to make the statement of the offense certain to a certain intent may be omitted and the indictment will be sufficient, where all that is necessary in charging the offense is stated. ^° And by 12. People V. Paige, 1 Ida. 102. 1,3. Johnson v. State, 36 Ark. 242; Lacefield v. State, 34 Ark. 275; Peo- ple V. Beatty, 14 Cal. 566. 14. 4 Blacks. Com. 306, wherein he also further says by way of illustra- tion : " Thus in treason the facts must be said to be done ' treason- ably and against his allegiance;' an- ciently ' proditorie et coutra Ugean- tiae suae debitum ; ' else the indict- ment is void. In indictments for murder, it is necessary to say that the party indicted ' murdered,' not ' killed ' or ' slew ' the other ; which till the late statute was expressed in Latin by the word ' murdramt.' In all indictments for felonies, the ad- verb ' feloniously,' ' felonice ' must be used; and for burglaries also ' burglariter ' or in English ' burg- lariously;' and all these to ascertain the intent. In rapes, the word - rapuit ' or ' ravished ' is necessary. and must not be expressed by any periphrasis; in order to render the crime certain. So in larcenies also, the words ' felonice cepit et aspor- tavit,' 'feloniously took and carried away,' are necessary to every indict- ment; for these only can express the very offense." In an indictment for maybem it was a rule at the common law that the indictment must not only charge the facts which constituted the injury, but must also charge, as a conclusion from the facts averred that the party was " maimed," such word being a term of art, set apart by the common law, for the descrip- tion of the offense which no other word could supply. Guest v. State, 19 Ark. 405. 15. Lambertson v. People, 5 Park. Cr. R. (N. Y.) 201. The word " forcibly " need not be : ' used in an indictment for assault 257 17 § 241 Chaeging the Offense. statute in some States the use of technical expressions, whicli ■were required at the common law are no longer essential.^® % 241. Facts and circumstances should be stated — General rule — It is a general rule that it is not sufficient to charge in an indictment that the defendant has committed a certain specified crime but that it must be stated how he committed the crime by reciting the material facts and circumstances constituting the offense. ^^ So in an early case in Alabama it is said: "The with intent to commit rape. State v. Peak, 130 N. C. 711, 41 S. E. 887. The words " with force and arms " have been superfluous since the statute 37, Henry VIII. State v. Har- ris, 106 N. C. 682, 11 8. E. 377; State V. Duncan, 6 Ired. L. (N. C.) 236; State V. Moses, 2 Dev. (N. C.) 452. See State v. Pratt, 54 Vt. 484. 16. Anderson v. State, 5 Ark. 444, holding that under the statutes in force in Arkansas the use of the word " murder " is not necessary to a charging of that crime. Caldwell V. State, 28 Tex. App. 566, 14 S. W. 122, holding same as preceding case. 17. United States. — ^Pettibone v. United States, 148 U. S. 197, 37 L. Ed. 419, 13 Sup. Ct. 542; United States V. Kelsey, 42 Fed. 882. Alabama. — Martin v. State, 29 Ala. 30; State v. Seay, 3 Stew. 123. Arkansas. — State v. Lewis, 53 Ark. 340, 13 S. W. 925. California. — People v. Aro, 6 Cal. 207; People v. Hood, 6 Cal. 236. Illinois.— Poore v. People, 26 111. App. 137. Indiana. — Kinningham v. State, 119 Ind. 332, 21 N. B. 911; State v. Record, 56 Ind. 107; Markle v. State, 3 Ind. 535. Iowa. — State v. Clark, 80 Iowa, 517, 45 N. W. 910; State v. Potter, 28 Iowa, 554. Kentucky. — Jones v. Common- wealth, 3 Mete. 18. Iionisiana. — State v. Jackson, 43 La. Ann. 183, 8 So. 440. Maine. — State v. Verrill, 54 Me. 408; Brown v. Williams, 31 Me. 401. Massaclinsetts. — Commonwealth v. Hall, 15 Mass. 240. Micliigan^ — Alderman v. People, 4 Mich. 414, 9 Am. Dec. 321. Mississippi. — Denley v. State (Miss.), 12 So. 698. Missouri. — State v. Van Nye, 136 Mo. 227, 37 S. W. 938, 58 Am. St. Rep. 627; State v. Marshall, 121 Mo. 476, 26 S. W. 562; State v. Rags- dale, 59 Mo. App. 590; State v. Ray- mond, 54 Mo. App. 425; State v. Couch, 40 Mo. App. 325. Nebraska. — ^Moline v. State, 67 Neb. 164, 93 N. W. 228. New York. — People v. Albow, 140 N. Y. 130, 55 N. Y. St. R. 253, 35 N. E. 438; People v. Stark, 136 N. Y. 538, 32 N. E. 1046, 49 N. Y. St. R. 899; People v. Blanchard, 90 N. Y. 258 Chaeqing the Offense. § 241 learned author of Bacon's Abridgement remarks that ' every in- dictment ought to contain a complete description of such facts and circimistances as constitute the crime, without inconsistency 314 ; People v. Haight, 54 "Hun, 8, 26 N. Y. St. R. 33, 7 N. Y. Supp. 89; People V. Gates, 13 Wend. 311; Dord T. People, 9 Barb. 671; Lambert v. People, 9 Cow. 578; People v. Stark, 12 N. Y. Supp. 688. Oliio. — Bynam v. State, 17 Ohio St. 142; Dillingham v. State, 5 Ohio St. 280. Oregon. — State v. Lawrence, 20 Or. 236, 25 Pac. 638. Sonth Dakota. — State v. Butcher, 1 S. D. 401, 47 N. W. 406. Tennessee. — State v. Fields, Mart. & Y. 137. Texas.— Click v. State, 3 Tex. 282; Weaver v. State, 34 Tex. Cr. 554, 31 S. W. 400; Maddox v. State, 28 Tex. App. 533, 13 S. W. 861; Brown v. State, 26 Tex. App. 540, 10 S. W. 112. Vermont. — State v. Baeon, 7 Vt. 222. Virginia. — Parkinson v. State, 3 Gratt. 587. England. — ^King v. Stevens, 5 East, 244. It is an elementary rule of pleading that every material fact es- sential to the commission of a crimi- nal offense must be distinctly alleged in the indictment. State v. Webb's River Improvement Co., 97 Me. 559, 55 Atl. 495. Per Peabodt, J., citing Williams v. People, 101 111. 385; State v. Paul, 69 ISIe. 215; State v. Chapman, 68 Me. 477; State v. Bushey, 84 Me. 459, 24 Atl. 940. "The indictment should allege all the material facts necessary to be proved to secure a conviction." Brown V. Williams, 31 Me. 401. Per Shep- LET, J., citing People v. Gates, 13 Wend. (N. Y.) 311. " The indictment should state spe- cifically the facts and circumstances which constitute that oflfense." aick V. State, 3 Tex. 282. Per Whemlee, J. That an offense is a felony or a misdemeanor need not be stated in express terms in an indictment. People V. War, 20 Cal. 117. Wliere some of the connts are abandoned, the purpose of an in- dictment is nevertheless accom- plished if the count or counts un- der which the trial proceeds set out the facts constituting the crime either directly or by reference to the preceding counts. People v. Lewis, 111 App. Div. (N. Y.) 555, 98 N. Y. Supp. 83. Habeas corpus xrill lie where a person is imprisoned under an in- dictment where the facts alleged therein do not constitute a. public of- fense. Ex parte Goldman (Cal. App. 1906), 88 Pac. 819, citing In Matter of Corryell, 22 Cal. 183; Ex parte Harrold, 47 Cal. 130; Ex parte Maier, 103 Cal. 479, 37 Pac. 402, 42 Am. St. Rep. 129; Ex parte Williams, 121 Cal. 331, 53 Pac. 706. To convict one of aiding and abetting, the facts constituting the aiding and abetting should be suffi- ciently stated. Taylor v. Common- 259 § 241 Chaeging the Offense. or repoignancy.' And the author says ' it is laid dowu as a good general rule that in indictments as well as appeals, the special wealth, 28 Ky. Law Rep. 819, 828, 90 S. W. 581, 584. Indictment for assault iritli intent to commit rape.^In order to convict one of assault and battery under such, an indictment it should appear from the allegation that some actual violence accompanied the at- tempt. State V. McAvoy, 73 Iowa, 557, 35 N. W. 630. In an indictment for an at- tempt to commit a crime both the intent and the overt act should be al- leged. State V. Wilson, 30 Conn. 500; Hogan V. State (Fla.), 39 So. 464. In an indictment for bribery- it should be alleged that the bribe was given and received corruptly. State V. Pritchard, 107 N. C. 921, 12 S. E. 50. An indictment for embezzle- ment should aver the facts consti- tuting the unlawful appropriation. Territory v. Heacock, 4 N. M. 354, 20 Pac. 171. In an indictment for extor- tion the amount taken in excess of the lawful fee should be stated. Lof- tus V. State (N. J.), 19 Atl. 183, aff'd 52 N. J. L. 223, 20 Atl. 320. And there should also be an averment that the amount was ex- torted under color of office. State v. Pritchard, 107 N. C. 921, 12 S. B. 50. Indictment for forgery. — There should be a statement of such facts. in an indictment for forgery as show that the instrument alleged to be forged is one in respect to which for- gery can be committed. State t. Haran, 64 N. H. 548, 15 Atl. 20. And in the case of an indictment for ut- tering a forged instrument there should be a statement of the acts which constitute the uttering, lock- ard V. Commonwealth, 85 Ky. 201, 8 S. W. 266; Purvis v. Commonwealth, 13 Ky. Law Rep. 744, 18 S. W. 357. Sufficiency of in particular cases see: Alabama. — Williams t. State, 90 Ala. 649, 8 So. 629, forging a land- lord's release of lien upon crops. Georgia. — Hicken v. State, 96 Ga. 759, 22 S. E. 297, forgery of a cheek. Kentucky. — Commonwealth v. Bowman, 16 Ky. Law Rep. 222, 27 S. W. 816, forgery of a note. Massachusetts. — Commonwealth v. Dunleay, 157 Mass. 386, 32 N. E. 356, forgery of an application for an insurance policy. Texas. — Carder v. State, 35 Tex. Cr. App. 105, 31 S. W. 678, forgery of an obligation to pay. Overly v. State, 34 Tex. Cr. App. 500, 31 S. W. 377, forgery of a railroad ticket. Simms v. State, 32 Tex. Cr. App. 277, 22 S. W. 876, forgery of an instru- ment certifying the sale of a note. King V. State, 27 Tex. App. 567, 11 S. W. 525. Indictment for libel. — See Peo- ple V. Stark, 136 N. Y. 538, 32 N. B. 1046, 49 N. Y. St. R. 899. In an indictment for murder there should be an averment of the time and place of the death of the one murdered. Ball v. United States, 140 U. S. 118, 35 L. Ed. 377, 11 Sup. Ct. 761. Indictment for obtaining 260 Chaeging the Offense. § 241 maimer of the -whole fact ought to be set forth with such certainty that it may judicially appear to the court that the indictors have not gone upon insufficient premises.' " ^® And in an early case in Indiana it is declared that it is a general rule that whatever is essential to the gravamen of the indictment must be set out par- ticularly.^" So in the case of an indictment charging a man with being " a common Sabbath breaker and prophaner of the Lord's day," it was held that the indictment was insiifficient where it did mot show how or in what manner he was a common Sabbath property under false pretenses. — In such an indictment there should be an averment that something was obtained by the false pretences. Jones V. United States, 5 Craneh C. C. 647. Where the indictment is at common law such false tokens should be set forth as the common law recognizes. . United States v. Hale, 4 Craneh C. C. 83. See, also, as to suflSciency, Jen- kins V. State, 97 Ala. 66, 12 So. 110; Scarlett v. State, 25 Fla. 717, 6 So. 767. In an indictment for perjnry it should be alleged that the matter in respect to which it is claimed the perjury was committed was material. State V. Cunningham, 116 Ind. 209, 18 N. E. 613; Commonwealth v. Wood, 2 Pa. Dist. R. 823, 13 Pa. Co. Ct. 477; Buller v. State, 33 Tex. Cr. 551, 28 S. W. 465. And it has been held that an averment that it was material is sufficient. State v. Jean, 42 La. Ann. 946, 8 So. 480; Sisk v. State, 28 Tex. App. 432, 13 S. W. 647. But see Territory v. Remuzon, 3 Gild. (N. M.) 648, 9 Pac. 598. As to the sufficiency of an indictment for perjury in particular cases see: California. — People v. Bartman, 81 Cal. 200, 22 Pac. 592. Kansas. — State v. Smith, 40 Kan. 631, 20 Pac. 529. Kentucky. — Commonwealth v. Taylor, 16 Ky. Law Rep. 482, 29 S. W. 138; Ross v. Commonwealth, 14 Ky. Law Rep. 590, 20 S. W. 1043. Texas. — ^Misener v. State, 34 Tex. Or. 588, 31 S. W. 858. Vermont. — State v. Clogston, 63 Vt. 215, 22 Atl. 697; State v. Smith, 63 Vt. 201, 22 Atl. 604; State v. Collins, 62 Vt. 195, 19 Atl. 368. An indictment for slander should set out the words as spoken and if they are uttered in a foreign tongue it is held they should be set out as uttered and not as translated into English. State v. Marlier, 46 Mo. App. 233. Compare Rogers v. State, 30 Tex. App. 462, 17 S. W. 548. Where a person was indicted for slander in stating that a certain wo- man " is pregnant and will give birth to a child in a few days " it was held to be insufficient in not excluding the fact of her being legitimately preg- nant. Clark V. State, 32 Tex. Cr. 412, 24 S. W. 29. 18. State V. Seary, 3 Stew. (Ala.) 123, 131. Per CoixiEB, J. 19. Markle v. State, 3 Ind. 535. 2G1 § 242 Chaeging the Offense. breaker lOnd prophaner of the Lord's day.^" Wheii th.e act is not in itself necessarily unlawful, but becomes so by other facts con- nected with it the facts in which the illegality consists must be set forth and averred.^ ^ And in an early case in New Jersey it is said thait where an offense consists in an omission to do some act the indictment must show how the defendant's obligation to per- form that act arises, unless it is a duty annexed by law to the office which ithe defendant sustains.^^ And where one is charged with a common law offense, the mere averment that it was done contra pacem, does not dispense with the necessity of setting out in proper terms the circumstances necessary to constitute the alleged common law offense.^^ § 242. Object in requiring particularity — In an early case in Georgia the objects in requiring particularity in setting out an offense are well stated as follows : First, in order to identify the charge, lest the grand jury should find a bill for one offense and the defendant be put on his trial in chief for another. Secondly, that the defendant's conviction or acquittal may inure to his subsequent protection should be again be questioned on the same grounds. Thirdly, in warranting the court in granting or refusing any par- ticular right or indulgence incident under the law to the case. Fourthly, to enable the accused to determine on the line of his defense, and prepare for it both as to the law and facts; and, Fifthly, and finally, to put it in the power of the court to look 20. State v. Brown, 7 N. C. 224. 22. State v. Hogeman, 13 N. J. The court declared in this case that 3l4; citing Stark. Cr. PI. 180; Rex an indictment is a. compound of law v. Holland, 5 Term. R. 623. and fact, and the court, upon an in- 23. State v. Hodges, 55 Md. 127, spection of the indictment, must be wherein it was said : " It is a gen- able to perceive the alleged crime. eral rule that nothing material shall Per Hkndebson, J. ^^ taken by intendment or impliea- 21. Pearce v. State, 1 Sneed tion, but that in all eases the indict- (Tenn.), 63, 60 Am. Dee. 135. See ment must describe with certainty Cearfoss v. State, 42 Md. 403, the offense of which the party is wherein it is said that it is only in charged, and must aver the facts such cases that the facts in which the necessary to constitute such offense." illegality consists must be set out. Per Robinson, J. 262 Chaeging the Offense. § 242 througli the record and to decide whether the facts charged are sufficient to support a conviction for a particular crime and to "warrant the judgment; also to regulate the appropriate punish- ment for the particular offense.^* And a like doctrine is asserted in other cases.^^ 24. Wingard v. State, 13 Ga. 396. Per Lumpkin, J. 25. In a recent ease in the United States Circuit Court of Appeals it is said that an indictment " must set forth the facts which the pleader claims constitute the alleged trans- gression so distinctly as to advise the accused of the charge which he has to meet, so fully as to give him a fair opportunity to prepare his de- fense, so particularly as to enable him to avail himself of a conviction or ac- quittal in defense of another prose- cution for the same crime, and so clearly that the court, upon an exami- nation of the indictment, may be able to determine whether or not, under the law, the facts there stated are sufficient to support a conviction." Miller v. United States, 133 Fed. 337, 341, 66 C. C. A. 399. Per Sanbobn, J., citing United States v. Hess, 124 U. S. 483, 486, 487, 8 Sup. Ct. 571, 31 L. Ed. 516; United States v. Post, 113 Fed. 852. In. u, case in Rhode Island it is said that, " The rules of criminal pleading require that the oflfense shall be charged specifically, first, in order that the accused may know precisely what he is to defend against, and secondly, that a record of his acquittal or conviction may be a bar to a subsequent prosecution for the same offense." State v. Pirlot, 19 E. I. 695, 36 Atl. 715, citing State v. Doyle, 11 R. I. 574; State v. Smith, 17 R. I. 371, 22 Atl. 282. In an early Engli&h case the rnle is laid dotm that, " The charge must contain such a descrip- tion of the crime, that the defendant may know what crime it is, which he is called upon to answer; that the jury may appear to be warranted in their conclusions of guilty or not guilty upon the premises delivered to them, and that the court may see such a definite crime, that they may ap- ply the punishment, which the law prescribes." Rex v. Home, Cowp. 672. Per Lord Chief Justice De Gbey. The charge mnst contain such a, description of the crime, that the respondents may know for what crime they are to answer, that the jury may appear to be warranted in their conclusion of guilty or not guilty, upon the premises delivered to them, and that the court may see such a definite crime that they may apply the punishment which the law pre- scribes. State V. Gary, 36 N. H. 359. Per FowLEB, J., citing State v. Fol- lett, 6 N. H. 53; Rex v. Home, Cowp. 682. " The indictment shonid leave no donbt in the minds of the ac- cused and the court of the exact of- fense intended to be charged, so that the defendant may not only know what he is called upon to meet, but also that a, plea of former acquittal 263 §§ 243, 244: Chaeging the Offense. §1 243. Facts need not be stated in minute detail. — The general rule as to stating in an indictment the facts and circumstances constituting the offense is not to be construed as requiring that all the facts should be stated in minute detail. It is sufficient where they are substantially stated in general terms.^® Where an indict- ment is certain as to the person and the offense charged a more particular specification of the circumstances of the offense is not required where its only result would be to afford greater facilities in escaping a trial upon the merits by surrounding the ease with additional technical requirements.^^ So it has been declared in New York that an indictment is sufficient which contains the sub- stance of the offense, with the circumstances necessary to render it intelligible and inform the defendant of the allegations against Siim.^* And it has been said that it is sufficient if the idea is clearly and distinctly expressed and that the pleader is not con- fined to any precise phraseologj"^, except when technical words are necessary to give character to the offense.^® And if an indictment furnishes to the accused reasonable information of what he is called on to answer, by setting forth the constituent elements of the offense, it will be sufficient, although it omits many averments which at common law, were necessary to the validity of an indict- ment.^" § 244. Minor circiunstances need not be stated. — Minor cir- cumstances which are not vital elements of the offense need not be set out in an indictment.*^ Facts and incidents which do not Con- or conviction can be shown with ac- (S. C.) 190. curacy by the record." United States 30. Noles v. State, 24 Ala. 672 ; V. Baltimore & O. R. Co., 153 Fed. State v. Langford, 3 Hawks (N. C), 997. Per Goff, J. 381; United States v. Clark, 46 Fed. 26. Kersh v. State, 24 Ga. 191; 633. State V. Finley, 6 Kan. 366; State v. 31. State v. New, 36 Ind. App. 521, Ballard, 2 Murph. (N. C.) 186. 76 N. E. 181, citing State v. Allen, 27. People V. Murphy, 39 Cal. 52. 12 Ind. App. 528, 40 N. E. 705; 28. Pontius v. People, 82 N. Y. 339. Fisher v. State, 2 Ind. App. 365, 28 Per Danfobth, J., affirming 21 Hun, N. E. 565; State v. Hogreiver, 152 328. Ind. 652, 53 N. E. 921, 45 L. R. A. 29. State v. Wimberly, 3 MeO. L. 504; Pemberton v. State, 85 Ind. 507. 264 Chaeging the Offense. § 245 stitute a necessary part of the offense, need not be stated for the purpose of distinguishing it, but they may be proved by the defend- ant, so as to fix its identity, and thereby protect himself from a, second prosecution.*^ § 245. Should use direct and positive averments. — In charg- ing the offense in an indictment it should not be done by way of recital, it being essential that direct and positive averments should be used.** " Every fact and circimistance stated in an indictment must be laid positively; it cannot be stated by way of recital, nor by way of argument or inference ; the allegations must be in words, See Quinlan v. People, 6 Park. Cr. (N. Y.) 9; State v. Switzer, 63 Vt. 604, 22 Atl. 724, 25 Am. St. Rep. 789. 32. Horan v. State, 24 Tex. 161, ■wherein the court said that the de- fendant " cannot require the State to do more than state, with reasonable certainty, the facts, and those only which constitute the offense." Per ROBEBTS, J. 3i3. Indiana. — State v. Locke, 35 Ind. 419. Maine.— State v. Paul, 69 Me. 215. Minnesota. — State v. Nelson, 79 Minn. 388, 82 N. W. 650. Mississippi. — ^Breeland v. State, 79 Miss. 527, 31 So. 104. Nevada. — ^People v. Logan, 1 Nev. 111. New York. — People v. Lewis, 111 App. Div. 558, 98 N. Y. Supp. 83. Sonth. Carolina. — State v. Perry, 2 Bailey L. 17. Texas.— Allen v. State, 13 Tex. App. 28; Hunt v. State, 9 Tex. App. 404; Parker v. State, 9 Tex. App. 351. See, also, sections following. " The general rnle is recog- nized that material matters in either civil or criminal pleading must he directly alleged and not stated by way of recital." State v. Trueblood, 25 Ind. App. 437, 440, 57 N. E. 975. Per CoMSTOOK, J. " As he verily believes." — ^In the ease of an information it has been held that it is bad where the district attorney charges the offense "as he verily believes." The charge must be that the defendant committed the crime, not that he is guilty as the district attorney verily believes. Vannatta v. State, 31 Ind. 210. See Ludden v. State, 31 Neb. 429, 48 N. W. 61. And an information which, instead of charging an offense in posi- tive terms, merely charges that the county attorney " has reason to be- lieve and does believe " that the acts constituting the offense have been committed by the accused has been held to be vulnerable to a demurrer. Sothman v. State, 66 Neb. 302, 92 N. W. 303. That complainant "has prob- able canse to suspect." — ^A com- plaint and information on oath " that 265 § 246 Charging the Ofpense. clear, direct, and not argumentative or inferential,"^* So an in- dictment which alleges that the defendant is accused of having com- mitted an offense, stating it, but which does not directly charge that the defendant committed the offense, is insnfiicient, as against an objection that the indictment does not charge a crime or state facts sufficient to constitute a public offense.^^ § 246. Supplying omissions by intendment or implication — General rule — It is a general rule that the want of a direct, posi- tive and material allegation, in the description of the substance, nature or manner of the offense cannot be supplied by any intend- ment, argument or implication.^® So it has been said by the the complainant lias probable cause to suspect " that the accused has com- mitted the offense charged has been held not to be a complaint made with such reasonable and sufficient cer- tainty as to be the ground of a convic- tion and sentence. Commonwealth v. Phillips, 16 Pick. (Mass.) 211. The use of the word " -where- as " does not render a positive aver- ment a mere recital. People v. Ennis, 137 Cal. 263, 70 Pac. 84. See People V. Fitzgerald, 92 Mich. 331. 34. Wabash, St. Louis & Pac. Ry. Co. V. People, 12 111. App. 448. Per Wall, J. 35. State v. Nelson, 79 Minn. 388, 82 N. W. 650, wherein the court said: "There must be a direct charge against the accused that he committed the offense. A recital that he is accused of having committed it is not a charge that he has com- mitted it." Per Lewis, J. 36. TJnited States. — Pettibone v. United States, 148 U. S. 197, 37 L. Ed. 419; 13 Sup. Ct. 542; United States V. Hess, 124 U. S. 483, 8 S. Ct. 571; United States v. Post, 113 Fed. 852. Alabama. — State v. Seay, 3 Stew. 123. Arhansas. — Gage v. State, 67 Ark. 309, 55 S. W. 165. District of Colombia. — United States V. Barker, 19 Wash. L. K. 418. Iowa. — State v. Gallangher, 123 Iowa, 378, 98 N. W. 906; State v. Clark, 80 Iowa, 517, 45 N. W. 910; State V. Potter, 28 Iowa, 554. Kentnchy, — Commonwealth v. Walters, 6 Dana, 290. Maiae.— State v. Paul, 69 Me. 215. Maryland. — State v. Hodges, 55 Md. 127. Mississippi. — Eiggs v. State, 26 Miss. 51. Missonri. — State v. Rector, 126 Mo. 328, 23 S. W. 1074; State v. Fair- lamb, 121 Mo. 137, 25 S. W. 895; State V. Gassard, 103 Mo. App. 143, 77 S. W. 473. Nebraska. — ^Moline v. State, 67 Neb. 164, 93 N. W. 228; State v. Hughes, 38 Neb. 366, 56 N. W. 982; Smith V. State, 21 Neb. 552. 266 Chaeging the Offense. § 246 United States Supreme Court that : " The general and, with few- exceptions . . . the universal rule, on this subject is, that all the material facts and circumstances embraced in the definition of the offense must be stated, or the indictment will be defective. No essential element of the crime can be omitted without destroy- ing the whole pleading. The omission cannot be supplied by in- tendment, or implication, and the charge must be made directly and not inferentially, or by way of recital." *^ And in a case in New York in which this question is considered it is said: "A criminal charge may be and often is supported by inferences from facts which imply the existence of the principal fact constituting the offense. But the principal fact must be charged in the indict- ment. It is not sufficient to allege the facts from which an infer- ence of the principal fact may be drawn, without charging the principal fact. The settled rule of criminal pleadings requires that all the elements which enter into the definition of an offense must be stated in the indictment. The strictness which formerly pre- vailed in respect to unessential matters in indictments, which often defeated the ends of justice, has been properly relaxed. But the rule that the offense must be charged in plain and intelligible lan- guage, and that the indictment must set forth all the essential elements of the crime, is and ought to be preserved alike for the protection of the aiocused and in the interest of the certain and orderly administration of the criminal law." *® And a like doc- trine is asserted in other cases.^® Nevada. — ^People v. Logan, 1 Ner. Vepmont. — State v. Webber, 78 111. Vt. 463, 62 Atl. 1018. New York.— People v. Kane, 161 S''. United States v. Hess, 124 U. N. Y. 380, 55 N. E. 946; People v. S. 483, 486, 8 Sup. Ct. 571. Per Mr. Albow, 140 N. Y. 130, 35 N. e. 438. Justice Field. c *i. r. 1- o+ 4. TT 38. People V. Albow, 140 N. Y. 130, South Carolina. — State t. Hen- i,^ o • 51. Ledbetter v. United States, 170 53. Brassfield v. State, 55 Ark. 556, U. S. 606, 18 S. C. 774. Per Mr. Jus- 18 S. W. 1040; Mansf. Ark. Dig., § tice Brown, citing Commonwealth 2113. V. Tolliver, 8 Gray (Mass.), 386; 54. State v. Brown, 159 Mo. 646, 334 Chaeging the Offense — Paeticttlae Aveements. § 308 ■under the Code in Iowa it has been declared that technical exaot- ness of lan'guage is not required and that it is sufficient if it can be understood from the indiotment that the offense was committed within the jurisdiction of the eourt.^^ But under a code provision in New York making it a requisite to a valid indictment that '" it can be imderstood therefrom that the crime was committed at some place within the jurisdiction of the court," it has been decided that if the eharging part of the indictment does not specify any place where the alleged crime was committed the indictment is defective and a demurrer thereto is properly sustained.*® § 308. Matters of which court will take judicial notice Acts prescribing the limits of counties and towns are public acts of which the court wiU judicially take notice.^^ So stating an offense to have been committed in a certain town without adding the name 60 S. W. 1064; Mo. Eev. St. 1899, § 2527. 55. State v. Jacobs, 75 Iowa, 247, 39 N. E. 293. 56. People v. Horton, 62 Hun (N. Y.) 610, 17 N. Y. Supp. 1. 57. People v. Breese, 7 Cow. (N. Y.) 429; State v. Jordan, 12 Tex. 205. See § 276 herein. " Statutes prescribing the bound- aries of a territory and division into judicial districts are public acts which the courts are bound to know, and of which they will take judicial notice. The limits of such judicial divisions are, therefore, of judicial cognizance. And so with regard to leading places and the geographical features of the land within such limits, as also with regard to the location and position of leading cities, villages and public places therein. ... A court will, likewise, take judicial notice of In- dian Reservations, and of leading pub- lic proclamations aflFecting matters relative to its jurisdiction. And this embraces executive decrees, orders and ordinances of State, and when these are issued in authentic public docu- ments they need not be proved." United States v. Beebe, 2 Dak. 292, 11 N. W. 505. Per Shannon, J. In. EiLgland conirts cannot pre- sume, as in tills conntry, that a certain parish or town is in the county named in the indictment, be- cause the boundaries of such are not defined by public laws. State v. Rob- erts, 26 Me. 263, 269. Per Tenney, J., citing Commonwealth v. Spring- field, 7 Mass. 9. A military reservation is an act of the president, under authority of law, withdrawing so many acres of the public domain from the immediate administration of the commissioner of the public lands, that is, from sale at public auction, and by pre-emption or general private entry, and appro- priating it, for the time being, to some special use of the government, and the court will take judicial notice 335 § 309 Chaeging the Offense — Paeticulae Aveements. of the county in which it is situated is held sufficient to confer jurisdiction, as the court takes judicial cognizance of the towns in a state and that they are in the counties to which they belong by law.^* And where an indictment stated the county as Herkimer both in the margin and in the first count and then described the defendants as of LTtica, in the county of Oneida, and then laid the offense as committed in the town of Franklin in said county and Franklin was in fact in Herkimer county, it was held that this was in effect as laying the offense in the latter county, Franklin being a town created by public statute.*^ And likeiwhise where two cotmties are in the same judicial district it is not necessary to aver this fact in an indictment in one county for an offense com- mitted in the other.®" And where an indictment states the town and county in which an offense was committed it will be regarded as sufficient though it does not give the name of the state.'* § 309. Charging time of offense — General rule. — The indict- ment must be sufficiently certain in charging the offense and with- out setting forth some time as that of its alleged commission there cannot be said to be the certainty required.®* At common law it was essential that time should be stated by laying a day and year certain and an indictment which did not do this was subject to demurrer and this may be said to be the general rule at the present time except so far as it may be modified by statute.®* So in a case of the reeorda of the executive depart- 59. People v. Breese, 7 Cow. (N. ment in reference thereto. State v. Y.) 429. Compare Commonwealth v. TuUy, 31 Mont. 365, 78 Pac. -760. Wheeler, 162 Mas8. 429, 38 N. B. 58. Vanderwerker v. People, 5 1115. Wend. (N. Y.) 530; Hite v. State, 9 qq Mischer v. State, 41 Tex. Or. Yerg. (Tenn.) 357. 212, 53 S. W. 627. An indictment fonnd in the LonisTille City Conrt for an of- 61. State V. Wentworth, 37 N. H. . . 196. See, also. Covey v. State, 4 Port, fense of which that court has juris- ^^j^^ ^^g. ^ ^^^^^^^^^^ ^ diction when committed within the ^^^ g^^. Satterwhite v. State, 6 Tex. limits of the city, need not state the g^g. g^^^ ^ 3g ^^ ^3^ county in which the offense was com- mitted, it being sufficient to charge «2. Allen v. State, 13 Mo. 307. that it was committed in the city of 63. United States. — United Louisville. Pusey v. Commonwealth, States v. Winslow, 3 Sawy. 337. 8 Ky. Law Kept. 538. Alabama. — Roberts v. State, 19 336 Chasging the Offense — Paeticulae Averments. § 309 in Texas it is said that it is the universal practice, in describing an offense to state a day on which it was committed though it may not generally be necessary to prove that it took place on that particular day and the court declared that this rule had been so well and so long established that it did not feel authorized to sanction a de- Ala. 526; state v. Beckwith, 1 Stew. 318. Maine. — State v. Wagner, 61 Me. 178; State v. Hanson, 39 Me. 337; State y. Baker, 34 Me. 52. Massaclmsetts. — Commonwealth v. Gardner, 7 Gray, 494; Commonwealth T. Dutton, 5 Gray, 89. Missonxi. — State v. Welker, 14 Mo. 398; Erwen v. State, 13 Mo. 306; Allen V. State, 13 Mo. 307. New Jersey. — Oliver v. State, 45 N. J. L. 272. NoTitih Carolina. — State v. Roach, 2 Hayw. 352. Pennsylvania. — Jacobs v. Com- monwealth, 5 S. & E. 315; Common- wealth V. Nailor, 29 Pa. Super. Ct. 275. Sontb Carolina. — State v. Brown, 24 S. C. 224. Texas. — State v. Eubanks, 41 Tex. 291 ; Barnes v. State, 42 Tex. Cr. 297, 59 S. W. 882. Vermont. — State v. La Bore, 26 Vt. 765; State v. G. S., 1 Tyler, 295, 4 Am. Dec. 724. " Time and place mnsit accom- pany every material allegation in the indictment, though it is not neces- sary in all cases to prove the offense on the day laid if it is before bill found." State v. Coleman, 8 S. C. 237, 243. Per Moses, J. "Tbe time laid shonld be the day of the month and year upon which the act is supposed to have been committed. A day certain must be stated, and this at present is always tne day of the month, although nam- ing it as a feast day or ' the octave of the Holy Trinity,' or the like seems to be sufficient." Arch. Cr. PI. (1st ed.), p. 12. "Every indictment must al- lege a, day and year on which the offense was committed." 1 Bish. on Cr. Proc. (1st ed.), § 239. '' It is in general requisite to state that the defendant committed the offense for which he was indicted on a specific day and year." 1 Chitty Cr. Law, p. 217. Charging the commission of an offense " on the third day of June instant " is insufficient, al- though the complaint purports to have been sworn to "on the fourth day of June A. D. 1855." Common- wealth v. Hulton, 5 Gray (Mass.), 89. Where time is laid after a scilicet, if it is repugnant to the time stated in a former part of the indictment, the scilicet may be re- jected as surplusage. State v. Haney, 1 Hawks (N. C), 460. The day and year may be ex- pressed in figures and need not be expressed in words at length. Alabama. — State v. Eaiford, 7 Port. 101. Indiana. — ^Hizer v. State, 12 Ind. 330; Hampton v. State, 8 Ind. 336. Iowa. — State v. Seamons, 1 Greene, 418. 337 22 § 310 Chaeging the Offense — Pabticdlae Aveements. parture from it.'* And in a somewhat recent case in. Georgia it is decided that an indictment which charges the commission of an offense in a certain year, without naming either the day or month upon which it was committed is defective and upon, special de- murrer thereto before arraignment should be quashed. ®® And in a case in Maine it is also decided that an omission to state the time when an alleged offense was committed is fatal eveni though the omission was undoubtedly accidental.** § 310. Precise time not essential. — Although it is said that the insertion of a definite date, or a date as definite as could be ascertained by the pleader, wo'uld be a better practice, and would accord fairer treatment to the defendant,®^ yet it is not necessary that the precise time of the commission of the offense be stated in an indictment, it being sufficient if it is shown to have been within the statute of limitations except where time is an indispensable ingredient of the offense.*^ So a defendant may be convicted upon Iionisiana. — State v. Egan, 10 La. Ann. 698. Maine. — State v. Reed, 35 Me. 489. Massachusetts. — Commonwealth v. Smith, 153 Mass. 97, 26 N. E. 436. Vermont. — State v. Hodgeden, 3 Vt. 481. Virginia. — Lazier v. Common- wealth, 10 Gratt. 708; Cody v. Com- monwealth, 10 Gratt. 776. But see Finch v. State, 6 Blackf. (Ind.) 533; State v. Voshall, 4 Ind. 589; Berrian v. State, 22 N. J. L. 9. See § 194 herein. An indictment need not aver the year to be " the year of onr Lord."— Hall v. State, 3 Ga. 18; State V. Bartlett, 47 Me. 388; Com- monwealth V. Doran, 14 Gray (Mass.), 37; Commonwealth v. Sulli- van, 14 Gray (Mass.), 97; State v. Lane, 4 Ired. L. (N. C.) 113. Com- pare Whiteaides v. People, 1 111. 4; Bngleman v. State, 2 Ind. 91. Use of abbreviations in stating date. — See § 195 herein. 64. State v. Eubanks, 41 Tex. 291. Per RoBEBTS, J. 65. Braddy v. State, 102 Ga. 568, 27 S. E. 670. 66. State v. Withee, 87 Me. 462, 32 Atl. 1013, citing State v. Beaton, 79 Me. 314, 9 Atl. 728; State v. O'Donnell, 81 Me. 271, 17 Atl. 66; State V. Dodge, 81 Me. 391, 17 Atl. 313; State v. Fenlason, 79 Me. 117, 8 Atl. 459; State v. Baker, 34 Me. 52. 67. State v. Gottfreedson, 24 Wash. 398, 64 Pac. 523. See Ledbetter t. United States, 170 U. S. 606, 18 Sup. Ct. 774. 68. Alabama. — Shelton v. State, 1 Stew. & P. 208. Arkansas. — Marquardt v. State, 52 Ark. 269, 12 S. W. 582. California.— People v. Miller, 12 Cal. 291. 338 Chakging the Offense — Paeticulae Averments. § 310 proof of tlie offense at any other time, whether before or after the day laid, so that it were before the time when the indictment was preferred. ®® But it has been decided when any time stated in an indictment is to be proved by matter of record, a variance will be fatal, and that in an indictment for perjury the day in which the perjury was committed must be truly laid.''" And in determining Georgia. — Conner v. State, 25 Ga. 515, 71 Am. Dee. 184. Indiana. — Fleming v. State, 136 Ind. 149, 36 N. E. 154; Myers v. State, 121 Ind. 15, 22 N. E. 781; Hub- bard V. State, 7 Ind. 160; State v. Eust, 8 Blackf. 195. loira. — State v. Freeman, 8 Iowa, 428. Kansas. — State v. Barnett, 3 Kan. 250, 87 Am. Dec. 471. Kentncky. — Commonwealth v. Al- fred, 4 Dana, 496. Michigan. — People v. Jenness, 5 Mich. 305. Mississippi. — ^McCarty v. State, 37 Miss. 411; Miller v. State, 33 Miss. 356. Missouri. — State v. Barr, 30 Mo. App. 498. Ne-w Vork. — People v. Jackson, 111 N. Y. 362, 19 N. E. 54, 19 N. Y. St. R. 506. North Carolina. — State v. Peters, 107 K. C. 876, 12 S. E. 74; State v. Swaim, 97 N. C. 462, 2 S. E. 68 ; State V. Sam, 2 Dev. L. 567. Rhode Island. — ^Kenney v. State, 5 E. I. 385. Virginia. — Arrington v. Common- wealth, 87 Va. 96, 12 S. E. 224, 10 L. R. A. 242. Washington. — State v. Gottfreed- Bon, 24 Wash. 398, 64 Pac. 523. Iieaving the day of the month hlank in charging the offense does not render the indictment defective. United States v. Conrad, 59 Fed. 458; State V. EfBnger, 44 Mo. App. 81; Cecil V. Territory (Okla. 1905), 82 Pac. 654; State v. Knight, 29 W. Va. 340, 1 S. E. 569. But see United States V. Law, 50 Fed. 915. 69. State v. Pratt, 14 N. H. 456. • 70. Rhodes v. Commonwealth, 78 Va. 692, 696. Per Lact, J., citing United States v. McNeal, 1 Gall. 387; United States v. Bouman, 2 Wash. C. C. 328; 2 Whart. Cr. Law, 599. But see State v. Perry, 117 Iowa, 463, 91 N. W. 765, holding that in an indictment for perjury an allegation that the crime was com- mitted " on or about " a specified date is sufficient as to time. The court said in this case: "If, when a copy of the record or the other paper con- taining the oath alleged to be false is set out in haec verba in the indict- ment, and the alleged originals are produced, bearing a difi'erent date, the variance is held fatal on the ground that the record or paper of- fered is not identified as the one in- tended. If, however, the charge is not based on a record or other writing under oath, and the statement as- serted to be false might have been made on either the date alleged or that proven, and would have consti- tuted perjury, if taken at either time, then the variance is regarded by the weight of authority as wholly imma- terial." Per Ladd, J., citing Mat- 339 § 311 Chaeging the Offense — Paeticulae Aveements. the sufficiency of an indictment the date alleged is held to becwme material and the court will consider that as the true one.^^ § 311. When variance between time alleged and proof not material. — The general rule is that except when time enters into the character of the offense proof of the precise time specified in an indictment or presentment is not indispensable to conviction. Though the evidence may establish the fact that the date of the offense was other than that alleged, yet the variance is not fatal and a conviction vsdll be supported where it appears that the time of the offense was within the period prescribed by the statute of limitations and prior to the finding of the indictment.^^ So it is thews V. United States, 161 U. S. 500, 16 Sup. Ct. 640, 40 L. Ed. 786; Keator v. People, 32 Mich. 484; State V. Fenlason, 79 Me. 117, 8 Atl. 459; Commonwealth v. Soper, 133 Mass. 393; Dill v. People, 19 Colo. 469, 36 Pac. 229, 41 Am. St. Eep. 454; State V. Lewis, 93 N. C. 581; Lucas v. State, 27 Tex. App. 322, 11 S. W. 443; Commonwealth v. Davis, 94 Ky. 612, 23 S. W. 218. 71. Dreyer v. People, 176 111. 590, 52 N. E. 372. 72. TJnited States. — Johnson v. United States, 3 McLean, 89. Alabama. — McDade v. State, 20 Ala. 81. Arkansas. — ^Medlock v. State, 18 Ark. 363. Florida. — Chandler v. State, 25 Ela. 728, 6 So. 768. Georgia. — Clarke v. State, 90 Ga. 448, 16 S. E. 96; Dacy v. State, 17 Ga. 439; Wingard v. State, 13 Ga. 396. Illinois. — Dreyer v. People, 176 111. 590, 52 N. E. 372. Iowa. — State v. Blanchard, 74 Iowa, 628, 38 N. W. 519; State v. McCTintic, 73 Iowa, 603, 35 N. W. 696. Kansas. — State v. Gill, 63 Ean. 382, 65 Pac. 682. Kentucky. — Commonwealth v. Al- fred, 4 Dana, 496; Faustre v. Com- monwealth, 13 Ky. Law Bep. 347, 17 S. W. 189. Iionisiana. — State v. Walters, 16 La. Ann. 400. Massachnsetts. — Benson v. Com- monwealth, 158 Mass. 164, 33 N. E. 384; Commonwealth v. Harrington, 3 Pick. 26; Commonwealth v. Braynard, Thach. Cr. Cas. 146. Mississippi. — Oliver v. State, 5 How. 14. Missonri.— State v. Kolb, 48 Mo. App. 269. New Jersey. — State v. Lyon, 45 N. J. L. 272. New York. — People v. Jackson, 111 N. Y. 362, 19 N. E. 54, 19 N. Y. St. R. 506; People v. Shannon, 87 App. Div. 32, 83 N. Y. Supp. 1061, 17 N. Y. Cr. R. 532; People v. Stocking, 50 Barb. 573, 6 Park Cr. R. 263; Peo- ple V. Van Santvoord, 9 Cow. 655; 340 Chaeging the Offense — Paetiotjlae Aveements. § 311 said by the United States Supreme Court : " Good pleading un- doubtedly requires an allegation that the offense was committed on a particular day, month and year, but it does not necessarily follow that the omission to state a particular day is fatal upon a motion in arrest of judgment, neither is it necessary to prove that the offense was committed upon the day alleged, unless a particular day be made material by the statute creating the offense. Ordi- narily, proof of any day before the finding of the indictment, and within the statute of limitations, will be sufficient-"''* And it has People V. McGuinness, 15 N. Y. Supp. 230, 39 N. Y. St. R. 533. North Carolina. — State v. New- som, 2 Jones L. 173. Pennsylvania. — Commonwealtli V. Nailor, 29 Pa. Super. Ct. 271; Commonwealth v. Powell, 23 Pa. Super. Ct. 370. Sontli Carolina. — State v. Ander- son, 59 S. C. 229, 37 S. E. 820; State V. Dawkins, 32 S. C. 17, 10 S. E. 772. Tennessee. — State v. Eskridge, 1 Swan, 413. Vermont.— State v. Willett, 78 Vt. 157 62 Atl. 48. Virginia. — ^Rhodes v. Common- wealth, 78 Va. 692. " The general mle requires the pleader to state some time when the offense was committed, within the period prescribed as a bar to the pros- ecution; but it is too well settled now to be questioned that where the time is averred under a videlicet the prose- cutor is not held to proof of it as laid, but may prove that the offense was committed at any time before the finding of the indictment, and within the period prescribed as a bar." McDade v. State, 20 Ala. 81, 82. Per Chilton, J. It is not necessary to prove that the offense was committed at the time averred. It is sufficient to prove that the offense charged was com- mitted at any time within the period fixed by the statute of limitations. Armstrong v. State, 145 Ind. 609, 43 N. E. 866. This principle has been ap- plied to indictments for such of- fenses as an attempt to poison (Ben- son V. Commonwealth, 158 Mass. 164, 33 N. E. 384); bigamy (Faustre v. Commonwealth, 13 Ky. Law Rep. 347, 17 S. W. 189); burglary (State V. Dawkins, 32 S. C. 17, 10 S. E. 772) ; forgery (State v. Blanchard, 74 Iowa, 628, 38 N. W. 519); larceny (State V. Anderson, 59 S. C. 229, 37 S. E. 820); seduction (State v. Mc- Clintic, 73 Iowa, 663, 35 N. W. 696) ; and unlawful sale of liquors (State V. Kolb, 48 Mo. App. 369). In an indictment for mnrder a variance of a day between the time alleged in the indictment and that shown by the proof is immaterial. People V. Jackson, 111 N. Y. 362, 19 N. E. 54, 19 N. Y. St. Rep. 506. 7,3. Ledbetter v. United States, 170 U. S. 606, 18 Sup. Ct. 774. Per Mr. Justice Beown, citing Armstrong v. State, 145 Ind. 609; Gratz v. Com- monwealth, 96 Ky. 162; United 341 § 312 Charging the Offense — Paktioulak Aveements. been said by the United States Circuit Court of Appeals that " It is a well settled rule of criminal practice that the date of an alleged offense, as stated in an indictment, is not binding on the United States, and is only material in reference to the bar of limitations and to show that the offense was committed anterior to the present- ment of the indictment. It is the practice to name in the indict- ment a date on which the offensei was committed ' but in the absence of a special reason rendering it important, this allegation is mere form, and the time proved need not be the same as laid.' "^* And it has been said by the United States Supreme Court that the date named in an indictment for the commission of the crime of murder is not an essential averment and that proof that the crime was committed days before or days after the date named is no § 312. Where time is an essential element. — ^Where time is an essential element of an offense the omission to state it consti- tutes a fatal defect which is not cured by the verdict.'^* So when time is of the essence of the offense, as where the statute prohibits States V. Conrad, 59 Fed. 458; Flem- tokens and swindling, the procur- ing V. State, 136 Ind. 149; State v. ing the goods is a material fact and McCarthy, 44 La. Ann. 323. it should appear by the indictment 74. Hume v. United States, 118 when they were procured. State v. Fed. 689, 696, 55 C. C. A. 407. Per Bacon, 7 Vt. 219. Shelbt, J., citing 1 Bish. New Cr. Necessity of averring time ot Prac, § 386. day in indictment for burglary, see 75. Hardy v. United States, 186 U. State v. Anselm, 43 La. Ann. 195, 8 S. 224, 225, 22 Sup. Ct. 889. Per So. 583; State v. Hutchinson, 111 Bbewee, J. Mo. 257, 20 S. W. 34; Guynes v. 76. Lewis v. State, 16 Conn. 32, so State, 25 Tex. App. 584, 8 S. W. 667; holding where an information for Sampson v. State (Tex. Cr. App.), burglary did not charge the crime to 20 S. W. 708; Shelton v. Common- have been committed in the night wealth, 89 Va. 450, 16 S. E. 355. season, and contained no allegation of The particular honr of the the hour when the ofifense was com- night need not be alleged, in an in- mitted or from which it appeared to dictment for an offense committed in have been committed in the night the night time. Commonwealth v. season. Williams, 2 Gush. (Mass.) 582, de- In an imdictmenit for false cided under Mass. St. 1847, ch. 13. 342 Chaeging the Offense — Paetictjlab Aveements. § 313 the doing of an act on certain days or dates, the indictment should show that the alleged violation of law was of that day or date.'''' § 313. Use of words " on or about " in stating time — Gen- erally. — At common law it was necessary to state an exact day as the time of the commission of the offense and the omissioni to do so was fatal. Therefore an allegation that the offense was com- mitted " on or about " a certain day does not sufficiently state the time and an indictment in which it is so alleged is, at common law, insufficient.''* And it may be stated generally that where the time of the commission of an offense is an essential ingredient thereof it is essential that time should be averred, and the use of the words " on or about "'" renders an indictment defective. So where time is of the essence of the offense, as where the doing of an act? on certain day is prohibited by statute, it is mot sufficient to allege the doing of that act " on or about " the day named in the statute.*" And where by statute the sale of intoxicating liquors is made a criminal offense where made on certain specified days an, indict- ment for such a sale ^ould aver that the sale was made on. one of the days named, it not being sufficient to allege that it was made " on or about " one of such days.*^ In many cases, however, some of which are decided under statutes dispensing with the necessity of stating time, where time is not of the essence of the offense, it has been held that the words " on or about " may be rejected as surplusage.*^ But where the words " on, or about " were used in 77. State v. liand, 42 Me. 311. 81. Ruge v. State, 62 Ind. 388; 78. Territory v. Armijo, 7 N. M. Clark v. State, 34 Ind. 436. 571, 37 Pac. 1117; Barnhouse v. 82. ITnited Sitates. — United State, 31 Ohio St. 39; State v. Con States v. McKinley, 127 Fed. 168. O'Keefe, 41 Vt. 691; United States v. Arkansas. — State v. Hoover, 31 Crittenden, 25 Fed. Cas. No. 14,890a, Ark. 676. Hempst. 61. Coiuiecticiit. — ^Eawson v. State, 79. Clark v. State, 34 Ind. 436. 19 Conn. 292. 80. State v. Land, 42 Me. 311, Indiana. — Hampton v. State, 8 wherein the court said: "On or Ind. 336. about, when the day is essential to Kansas. — State v. Harp, 31 Kan. the commission of the offense, does 496, 3 Pac. 432. not mean, in a penal statute or See following section as to effect prosecution, the very day." Per Pet- of so stating time under various TIT, J. statutes. 343 §§ 314, 315 Chaeging the Offense — Paetioulae Aveemekts. a complaint it was decided that a motion) to amend by striking them out as surplusage could not be allowed, as, if they were stricken out, the complaint would then state an. exact day and such was not the intent of their insertion, they being used to show that there was an uncertainty as to time.®' § 314. Use of words " on or about " — As affected by statute. — Under the statutes in force in many of the States it is sufficient in many cases to aver that the offense was committed " on or about" a certain date.®* Where it is provided by statute that unless time is a material ingredient of the offense the precise date need not be stated in an indictment it is sufficient to allege that the crime was committed " on or about " a specified date.®* Under a statute providing that no indictment or information shall be deemed invalid or defective " for omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense, nor for stating the time imperfectly " it has been decided that an information for larceny is sufficient which alleges the commission of the crime " on or about " a certain date.®* In this connection it has been decided that charging an offense to have been coonmitted " on or about " a date, two days before the filing of the information, sufficiently shows that the offense was committed prior thereto without the express averment that it was so committed.®^ § 315. Averment as to statute of limitations — Necessity of. — In the application of the rule that every fact essential to a 83. State v. Baker, 34 Me. 52, 56; State v. Perry, 117 Iowa, 463, 91 holding that the complaint could not N. W. 765, decided under Iowa Code, be sustained. § 5285; State v. Thompson, 10 Mont. 84. United States v. McKinley, 127 549, 27 Pac. 349, decided under Cr. Fed. 168, decided under Rev. St. U. Prac. Act, §§ 166, 171. S., § 1025 (U. S. Comp. St. 1901, p. 86. Rema v. State, 52 Neb. 375, 72 720); Bellinger & Cotton's Code, § N. W. 474, decided under Neb. Cr. 1309; State v. Williams, 13 Wash. Code, § 412; Gustavenson v. State, 335, 43 Pac. 15, decided under Wash. 10 Wyo. 300, 68 Pac. 1006. Code, §§ 1239, 1244. 87. People v. Miller, 137 Cal. 642, 85. Hampton v. State, 8 Ind. 336, 70 Pac. 735. decided under 2 Ind. R. S., p. 367, § 344 Chabging the Offense — Pakticulae Ateements. § 316 description or statement of the offense should be averred it has been determined that the allegation of a day within the period of limitation is material, whenever the offense is subject to limita- tion.** But it is held unnecessary that there should be an express averment that an offense was committed within the period pre- scribed by the statute of limitations where the date alleged for the commission of the offense was within the period prescribed before the finding of the indictment.*® § 316. Averment of facts to avoid bar of statute of limita- tions. — ^Where there are facts which operate to avoid the bar of the statute, the true date of the offense should be alleged followed by a statement of facts which would avoid the bar of the statute 88. People v. Miller, 12 Cal. 291; Tipton V. State, 119 Ga. 304, 46 S. E. 436; State v. Snyder, 182 Mo. 462, 82 S. W. 12; Commonwealth v. Nailor, 29 Pa. Super. Ct. 271. The -words " inhabitant of " and " nsnally resident -within," as used in a statute of limitations providing that the time which an ac- cused person is not " an inhabitant of or usually resident within this State," is not to be included as a, part of the time designated by the statute as operating to bar a prosecution, are held to be synonymous. State v. Sny- der, 182 Mo. 462, 82 S. W. 12. Bnrden of proof. — Where the period of time prescribed by the statute of limitations has passed and facts are set forth in the indictment which operate to avoid the bar, the burden of proof is on the State to es- tablish those facts. State v. Snyder, 182 Mo. 462, 82 S. W. 12. Unless an indictment for mis- demeanor is returned in Kentucky within twelve months after the com- mission of the offense, the statute of limitations operates as a bar to the prosecution; therefore time is a ma- terial ingredient in the offense, and if the indictment fails to allege that the offense was committed within twelve months before the finding of the indictment, and the date alleged shows that it was eommmitted more than twelve months before the indict- ment was returned, a demurrer should be sustained. Commonwealth V. Megibben Co., 101 Ky. 195, 40 S. W. 694; Williams v. Commonwealth, 18 Ky. Law Rep. 667. In Kentnchy it is provided by Code that "The statement in the in- dictment as to the time at which the offense was committed is not ma- terial further than the statement that it was committed before the time of finding the indictment, unless the time be a material ingredient to the offense." Ky. Crim. Code, § 129. See Williams v. Commonwealth, 18 Ky. Law Rep. 667, 37 S. W. 839; Com- monwealth V. Cain, 14 Bush (Ky.), 525. 89. Commonwealth v. Cook Co., 345 § 316 Chaeging the Offense — Paeticulae Aveements. as an excuse for not having preferred the indictment sooner.®* Where the time that an aocused person is out of the State is ex- cluded in computing the time for the operation of the statute of limitations, this exception should be stated in the pleading, it being declared tha,t prima facie the lapse of time is a good defense, and that if the statutory exception is relied on the State should set it up.®^ So under a statute providing for the prosecution of cer- tain offenses where the prosecution is commenced within one year from the time it has been made known to a public officer having authority to direct a public prosecution, it is essential when one year has elapsed since the offense was committed to insert in the indictment or information the averment to remove the bar of pre- scription.®^ In this connection it is said in a case in Kentucky: " Ordinarily the offense must be laid in the indictment within the time fixed by the statute of limitation. Where, however, the stat- ute does not impose an absolute bar, the prosecution may lay the offense outside the statute and prove without averment that the defendant was within the exception. But wherever a statute exists limiting prosecutions within fixed periods the most exact course is 102 Ky. 288, 43 S. W. 400, citing and following Stamper v. Commonwealth, 102 Ky. 33, 42 S. W. 915. 90. State v. Bilbo, 19 La. Ann. 76; State V. Peiree, 19 La. Ann. 90; State V. Snyder, 182 Mo. 462, 82 S. W. 12; State V. Meyers, 68 Mo. 266; Black- man V. Commonwealth, 124 Pa. St. 578; Hickman v. State, 44 Tex. Cr. 533, 72 S. W. 587. It is a fatal defect where it is shown on the face of an indictment that prosecution for the offense charged is barred by statute. State V. Ball, 30 W. Va. 382, 4 S. E. 645. 91. People V. Miller, 12 Cal. 291. Sufficiency of averment. — Un- der a statute providing that " if any person, who has committed an of- fense is absent from the State, or so conceals himself that process cannot be served on him, or conceals the fact of the crime, the term of ab- sence or concealment shall not be included in computing the period of limitations," concealment is held to be .sufficiently averred by alleging that " ever since the oflFense herein charged that defendant has continu- ously so concealed himself that pro- cess could not be served upon him." State v. Rook, 61 Kan. 382, 59 Pac. 653, decided under Gen. St. 1897, chap. 102, § 33. 92. State v. Hinton, 49 La. Ann. 1354, 22 So. 617, holding in such a case that the allegation that the of- fense has " just come to the knowl- edge of an officer having authority to prosecute " is sufficient. See State v. Wren, 48 La. Ann. 803, 19 So. 745. 346 Chaeging the Offense — Paeticulae Aveembnts. §§ 317, 318 to state the time correctly in tlie imdictment, and tken aver the exceptions, and this mode of pleading is now generally required."®* § 317. Same subject — Where prosecution re-referred to grand jury — Continuous prosecution. — ^Where a prosecution has been re-referred to a grand jury, a new indictment which ha^i been found by them will not be regarded as a continuation of a former prosecution, so as to avoid the operation, of the statute of limita- tions where there is no allegation upon its face of facts as to the former indictment thus showing that the prosecution was intended to be a continuous one.** § 318. Necessity of repeating time and place — It has been said that if taking the indictment as a whole, a day is specified as to any issuable averment, the objection will not be fatal because the day is not repeated with every issuable fact f^ and that if time and place are stated in the beginning of a sentence and may be grammatically read as applying to facts subsequently averred they need not be again averred or referred to by the use of the words " then and there."*® So the omission of the words " then and 93. N. N. & M. v. Co. V. Common- in averring the authority of an ofB- wealth, 14 Ky. Law Rep. 197. Per eer to administer an oath, it is not Yost, J., citing Wharton's Crim. necessary to aver that he " then and Pleading & Practice, § 318; Bishop on there" had authority, if time and Criminal Procedure; 405. place had been added to the act of 94. N. N. & M. v. Co. V. Common- taking the oath before him. State v. wealth, 14 Ky. Law Rep. 196. Com- Dayton, 23 N. J. L. 49. pare State v. Duclos, 35 Mo. 237. Indictment for unlawfully re- 95. State v. Coleman, 8 S. C. 237, moving timlier. — The words "then 243. Per MbsES, J. and there" in stating the value of See in this eoimeetion Noe v. Peo- timber unlawfully removed from the pie, 39 111. 96; Thayer v. State, 11 premises of another are not neces- Ind. 287 ; State v. Reid, 20 Iowa, 413 ; sary. State v. Blackwell, 3 Ind. 529. State v. Watrous, 13 Iowa, 489; State Averment declaring legal con- V. Baker, 50 Me. 45. elusion.— The words then and there 96. Bobel v. People, 173 111. 19, 50 need not be repeated to an averment N. E. 322, 64 Am. St. Rep. 64; which merely declares a legal conelu- Turns v. Commonwealth, 6 Mete. sion. State v. Willis, 78 Me. 70 2 (Mass.), 224. See State v. Harris, Atl. 848. 106 N. C. 682, 11 S. E. 377. An indictment for a felonious In an indictment for perjury, assault and battery, which lays a 347 § 319 Charging the Offense — Paeticulae Averments. there " in a clause describing the uses of a tenement which it is charged is maintained as a nuisance has been held to be of no im- portance.^^ And a code provision that no indictment shall be quashed " for the want of an allegation of the time or place of any material fact, when the venue and time have once been stated, has reference not only to the repeating the languag;e itself but also renders unnecessary the use of the words " then and there."** Again it has been decided that the rule which requires time and place to be repeated to those averments which are traversible is not as strictly applied in indictments for inferior offenses as in those where the offense charged is one which endangers the life of the accused.®* § 319. Where indictment charges future or impossible day. — It is a general rule that an indictment is fatally defective if it charges the commission of the offense as subsequent to the date upon which the indictment is found or on an otherwise impossible date.-' So it has beeai declared that if the indictment lay the venue to the assault and the stroke, has been held sufficient, though there is no venue expressly stated in re- spect to the maiming, wounding and disfiguring. State v. Bailey, 21 Mo. 484. See, also, State v. Freeman, 21 Mo. 481. 97. Commonwealth v. Langley, 14 Gray (Mass.), 21, citing Common- wealth V. Barker, 12 Cush. (Mass.) 186; Commonwealth v. Bugbee, 4 Gray (Mass.), 206; Commonwealth V. Sullivan, 6 Gray (Mass.), 477. See also State v. Doyle, 15 R. I. 527, citing the above case. 98. Turpin v. State, 80 Ind. 148, construing Cr. Code, § 181. 99. State v. Willis, 78 Me. 70, 2 Atl. 848. 1. Alabama. — McGehee v. State, 26 Ala. 154. Indiana.— Terrell v. State, 165 Ind. 443, 75 N. E. 884. Iowa. — Walters v. State, 5 Iowa, 507. Kentucky. — Commonwealth v. Aultmire, 22 Ky. Law Rep. 511, 58 S. W. 369. Maine.— State v. O'Donnell, 81 Me. 271, 17 Atl. 66. BCississippi. — Serpentine v. State, 1 How. 256. Missouri. — ^Markley v. State, 10 Mo. 291. Nexr Hampsliire. — State v. Pratt, 14 N. H. 456. New Jersey. — State v. Jones, 8 N. J. L. 307. North Carolina. — State v. Sex- ton, 3 Hawks, 184; State v. Wood- man, 3 Hawks, 384. Pennsylvania. — Commonwealth V. Nailor, 29 Pa. Super. Ct. 271. Texas.— Joel v. State, 28 Tex. 642; Woraack v. State (Tex. App.), 19 S. W. 605. 348 Chaegiwg the Offensk — Paeticulae Aveements. § 320 offense on an uncertain or impossible day, as where it lays it on a future day, or lays one and the same offense on different days, or lays it on a day which makes the indictment repugnant to itself, it will be void.^ And an indictment which charges the commission of an offense on a date subsequent to the finding of the indictment will not be sustained though it is provided by statute that no indict- ment shall be regarded as insufficient by reason of a failure to state the time when the offense was committed or for stating it imper- fectly unless time is of the essence of the offensa^ But in an early case in Georgia it is decided that an objection that an impossible day is stated in an indictment as that on which the offense was committed comes too late after verdict.* And though an offense may be laid as having been committed after the finding of the indictment yet it has been decided that this may be rejected as surplusage where a day certain is laid before.® And it is said to be unnecessary to allege in express terms that the offense was com- mitted before the finding of the bill where this is the plain import of the indictment from the language used.® § 320. Same subject continued — Application of rule ^In Vennont. — State v. Litch, 33 Vt. reason of a failure to state the time 67. of any material fact when the time An indictment against an ac- has once been stated, or if it can be cessory must, in addition to other understood that the offense was com- matter, contain all the averments mitted prior to the finding of the in- which would be necessary in an in- dictment. dictment against the principal, and it 4. Conner v. State, 25 Ga. 515 71 should be alleged therein that the Am. Dec. 184, holding that it was not crime of the principal was committed a good ground for the arrest of judg- before it was found and presented. ment in a criminal case that the time People V. Thrall, 50 Cal. 415. stated as the time of the offense was 2. State V. Pratt, 14 N. H. 456. Per subsequent to the finding of the in- GiLCHEiST, J. dictment. 3. Terrell v. State, 165 Ind. 443, Compare Commonwealth v. Hitch- 75 N. E. 884. ings, 5 Gray (Mass.), 482. See also State v. Smith, 88 Iowa, 5. State v. Woodman, 10 N. C. 384. 178, 55 N. W. 198, holding that such See Jones v. Commonwealth, 1 Bush a defect is fatal, though it is pro- (Ky.), 34, 89 Am. Dec. 604, decided vided by Code that no indictment under Ky. Cr. Code, § 130. shall be regarded as insufficient by 6. State v. Pratt, 14 N. H. 456. 349 § 321 Chaeging the Offense — Paeticulae Aveements. tiie application of the general rule stated in the preceding section it has been decided that an indictment for resisting an officer is fatally defective -where the commission of the offense is charged as of a time subsequent to the return day of the process.'' And an indictment is defective which alleges the commission of an act at a time subsequent to the passage of the statute making such act au offense.* And an indictment has also been held insufficient which charged the commission of an offense on a specified date in a certain county where the law creating the county was not passed until a date subsequent to that alleged.* But where the year which was stated incorrectly in an indictment was blotted out and the correct date inserted, it was held that the court properly refused to quash the indictment on the ground that an impossible date was alleged.^" § 321. Charging offense as of same day indictment found. — An indictment may allege that the offense was committed on the same day it was returned into court, but in such a case it is decided that it should also contain the allegation that the offense was com- mitted prior to the finding on the indictment. ^^ An indictment, however, which charges the commission of the offense on the same day on which it is found is held to sufficiently show that the offense was committed prior to the finding of the indictment where the offense is charged in the past tense. ^^ And in this connection it has been decided that the attendant facts and conditions which 7. McGehee v. State, 26 Ala. 154. Niehol's Case, 7 Gratt. (Va.) 589, 8. Hodnett v. State, 66 Miss. 26, holding an indictment good in which 5 So. 518, holding that this is true, the time of the offense was changed though it is provided by code that from a day previous to the operation an indictment shall not be regarded of the statute to a day subsequent, as insufficient, where time is not of 9. State v. Jones, 8 N. J. L. 307. the essence of the offence, though it 10. Jacobs v. State, 42 Tex. Cr. omits to state the time of the com- 353, 59 S. W. 1111. mission of the offense or states the 11. Joel v. State, 28 Tex. 642; Gill time imperfectly or charges it as com- v. State ( Tex. Cr. App. ) , 20 S. W. mitted on an impossible day or a day 578. But see People v. Squires, 99 that never happened. Cal. 327, 33 Pac. 1092. See Commonwealth v. Aultmire, 22 12. State v. Pratt, 14 N. H. 456, Ky. Law Rep. 511, 58 S. W. 369; cited and followed in State v. Emmett, 350 Chaeging the Offense — Paeticulae Averments. § 322 make the act charged an indictable offense should not be charged as of the time when the indictment is found, but they should be charged to have existed at the time the alleged offense was com- mitted.i* § 322. Offense consisting of succession of acts — Charging with a continuando. — It may be stated generally that where an offense consists of a succession of acts, an indictment therefor may properly charge that the offense was committed on a given day and " on divers other days between that day and the day of the finding of the indictment."^* So where an offense charged is con- tinuous, as a prohibited traffic, carried on from day to day, it may be laid with a continuando.-^® In this connection it is said in an early case in Massachusetts where the objection was raised that a count was too general in charging the unlawful sale of liquors on 23 Wis. 632. See also Williams v. Commonwealth, 13 Ky. Law Rep. 893, 18 S. W. 1024. See Wilson v. State, 15 Tex. App. 150, holding in the case of an infor- mation filed on the thirty-first day of August, 1883, that the allegation that the offense was committed " hereto- fore on the thirty-first day of August, 1883 " suiBciently showed the commis- sion of the offense before the filing of the information. 13. Sikes v. State, 67 Ala. 77, holding an indictment defective which charged that " James D. Sikes, a per- son who is the owner or keeper of a saloon in which vinous, spirituous, or other intoxicating liquors are kept for sale, having a billiard table con- nected therewith, on which the public can play, knowingly permitted Charley McCaskill, a, minor, to play thereon." 14. State v. Cafren, 48 Me. 364, so holding in case of an indictment for being a common seller of intoxicating liquors. Commonwealth v. Langley, 14 Gray (Mass.), 21, so holding in case of an indictment charging the keeping of a house of ill fame. Com- monwealth V. McKenney, 14 Gray (Mass.), 1; People v. Adams, 17 Wend. (N. Y.) 475; State v. Brown (N. D. 1905), 104 N. W. 1112. Com- pare Commonwealth v. Adams, 4 Gray (Mass.), 11. Indictment for manslaughter caused by negligence in erection of bnildings. — An indictment under the New York Penal Code, §§ 193, 195, charging such an offense suffi- ciently alleges the time of the offense, though it is a continuous one, by charging it as having been committed "heretofore and prior to the 13th day of April, 1885, also divers days and times up to the said 13th day. of April, 1885." People v. Buddensieek, 4 N. Y. Cr. R. 230, affirmed 103 N. Y. 487, 3 N. Y. St. R. 664, 5 N. Y. Cr. R. 69. 15. Our House No. 2 v. State, 4 G. Greene (Iowa), 172. § 322 Chaeging the Offense — Paetioulae Aveements. a day certain and on divers days since: " If this were a mode of criminal pleading, now for the first time presented for the con- sideration of the court, it would certainly deserve great considera- tion, whether it is sufficiently certain' and precise to satisfy the rules of law upon that subject. But such averments are allowable in many cases, and almost from the necessity of the case, as in case of a common barrator, common scold, common brothel, etc., and we consider that this form of indictment has long been allowed in practice upon this and prior analagous statutes.'* And in such cases, common practice, allowed and unquestioned, is of great authority, and stands, like other precedents, as high evidence of the law. Sanctioned by such practice, the court are of opinion that it is sufficient."''^ And a similar doctrine is asserted in a later case in the same State.'* But where the commission of a single and distinct offense is charged on a day certain and on divers other days and times before and after that day it is held that the words after the day specified may be rejected as surplusage.'* In this connection, however, it is decided that some particular day must be alleged as the day upon which some one of the acts charged was done. So an indictment has been held to be insuffi- cient where it charged the commission merely on " sundry and divers days " betwieen certain specified dates but which did not 16. Commonwealth v. Pray, 13 would be a good indictment. But usu- Pick. (Mass.) 359. ally in practice and trom the necessiiy 17. Commonwealth v. Odlin, 23 of the ease, it alleges the offense as Pick. (Mass.) 275. Per Shaw, J. having been committed on a partieu- 18. Commonwealth v. Gardner, 7 lar day named, and divers other days Gray (Mass.), 494, wherein it is said: between that day and some other sub- " Another class of offenses authorize sequent day particularly named; or and may require a more extended al- as committed upon a particular day legation of the time in which they named, and divers days between that were committed; as where a series day and the time cf finding the in- of acts may enter into and constitute dictment. These forms of indictment the offense. Such is the case of being have, in reference to this class of of- a common seller. Sometimes the fact fenses, been fully sanctioned by this may be established by the acts of the court." Per Dewey, J., citing Corn- party done on a single day; and, monwealth v. El well, 1 Gray (Mass.), therefore, an indictment for this of- 463; Commonwealth v. Wood, 4 Gray fense, alleging it to have been com- (Mass.), U. mitted on some one particular day, 19. Cook v. State, 11 Ga. 53, 56 352 Charging the Offense — PAETictrLAE Aveements. § 323 state any particular day on which any one of the acts named was committed.^" And the principle that some particular day must he named in the indictment on which the alleged ofEense was com- mitted, and that too, even if the offense be set out with a con- tinuando, is said to apply as strongly to an act of non-feasance as to an act of misfeasance when such act can logically and correctly be described as having been done on some particular day or upon some particular days. But where the offense consists of an omis- sion and cannot properly be charged as having been done on any particular day or days, as in the case of an indictment against a municipal corporation for failure to open a highway for a certain period of time, the offense may properly be charged as having been committed during the entire period, without naming a particular day or days.^^ § 323. Necessity of stating time — Statutory provisions affecting. — The common law rule as to the necessity of specifically stating a time when the offense was committed is now to a great extent modified or dispensed with by reason of statutory pro- visions.^^ So in some States it is expressly provided by statute that a failure to state the time at which an offense was committed in any case in which time is not the essence of the offense, or stat- ing the time imperfectly, unless time is of the essence of the offense, will not render the indictment insufficient.^* And in other States statutes of a similar import have been passed, such as that the statement in an indictment as to the time the offense was corn- Am. Dec. 410; People v. Adams, 17 322, 11 S. W. 443. See also eases in Wend. (N. Y.) 475; State v. Hunger, notes following in this section. 15 Vt. 291. 23. Armstrong v. State, 145 Ind. go. State V. Beaton, 79 Me. 314, 9 609, 43 N. E. 886, decided under Ind. Atl. 728, citing State v. Baker, 34 Me. R. S. 1881, § 1756; Ind. R. S. 1894, 52; State V. Hanson, 39 Me. 337. § 1825, and citing in this connection 21. State V. City of Auburn, 86 Me. State v. Scammons, 95 Ind. 22; State 276, 29 Atl. 1075. v. McDonald, 106 Ind. 233, 238; State 22. McGuire v. State, 37 Ala. 161; v. Patterson, 116 Ind. 45, 10 N. E. 89; Molettv. State, 33 Ala. 408; State v. Fleming v. State, 136 Ind. 149; 36 Hutchinson, 111 Mo. 257, 20 S. W. N. E. 154. See also State v. Acker- 34; State v. Pratt, 98 Mo. 482, 11 S. man, 51 La. Ann. 1213, 26 So. SO, de- W. 977; Lucas v. State, 27 Tex. App. eided under La. Rev. St., § 1063; 353 23 § 324 Ohabging the Offense — Pakticulae Avekments. mitted is not mateirial, further than as a statement that it was committed before the finding of the indictment, except where time is a material ingredient of the offense,^* or that the time at which the offense was committed need not be stated in the indictment, but the offense may be alleged to have been committed on any day before the finding thereof or generally before the finding of the indictment, unless the time is a material ingredient in the offense.^* Under a statute of this kind it has been held sufficient to aver that the offense was committed within the period prescribed by the statute of limitations preceding the return of the indictment, the exact time and date being to the grand jurors unknown.^® Under the Code in, Texas it is necessary that an indictment should show that the offense was committed anterior to the finding by the grand jury,^^ or in the case of an information that the offense was com- mitted anterior to the filing of the information.^* And by the Code in Kentucky it was early provided that an indictment should be regarded as sufficient, though the precise date was not alleged, if it appeared that the offense was committed prior to the finding of the indictment.^® § 324. Omission to state time supplied by reference to cap- tion or other parts of indictment. — The time of the commission of an offense may be sufficiently stated by reference to a time previously set forth,*" as where it is expressed in a prior count." State V. Peters, 107 N. C. 876, 12 S. Coleman v. State (Tex. Cr. 1901), -62 E. 74, decided under N. C. Code, § S. W. 7.'i3, decided under White's 1189. Ann. Code Cr. Proc, art. 439, subd. 6. 24. State v Hoover, 31 Ark. 676, ^g ^^ ^ 22 Tex. Cr. Gantt'a Dig., § 1796. See People v. ,^3^ 3 g ^ ^g^. ^j^j^^^ ^ gt^^,^ Kelly, 6 Cal. 210; People v. Miller, jg ^ 137 Cal. 642, 70 Pac. 735; Cal. Pen. ^^.j. ^g^ ^^ Code, § 988. 25. State V.Parker, 5 Lea (Tenn.), 2®- -Tones v. Commonwealth, 1 568; Tenn. Code, § 5124. See also ^""^^ '^^y;'' ^*' decided under Ky. Molett V. State, 33 Ala. 408, decided ^^- ^°^^' ^ ^^°- under Ala. Code, § 3512. '30. State v. Schultz, 57 Ind. 19, 26. Armstrong v. State, 145 Ind. holding use of words "then and 609, 613, 43 N. E. 886. See King v. there " sufficient reference. State, 3 Heisk. (Tenn.) 148. 31. Mills v. State, 8 Mo. 52; Mor- 27. Joel V. State, 28 Tex. 42. See gan v. State, 3 Tex. Cr. 1, 18N.W.647. 354 Chakging the Offense — Paeticblae xYveements. § 32.") And it has been decided that an indictment is good in which the daj of the commission of the offense is laid by reference to the cap- tion.^^ If the time has been expressed in a prior part of the indict- . ment it is generally sufficient to refer thereto by the words " then and there. "^* And where in an indictment for manslaughter the wounding was charged of one date and the death as of another, it was decided that after conviction the prisoner could not take advantage of an uncertainty as to time, arising from the averment that the defendant killed the deceased " on the day and year afore- said."** And it is also said that the rule is well settled that an indictment will be good if the day and year can be collected from the whole statement though they be not expressly averred.*** So it is not necessary that there should be an express averment that the offense was committed prior to the finding of the indictment, it being sufficient to allege that it was committed on a certain day, if it appears from the record that the day was prior to the finding of the indictment.*® § 325. Omission to state or defect in, stating time — Power to amend. — ^Where the time of an offense is an essential ingredient thereof, it constitutes a matter of substance and an omission to state it cannot be amended.*^ But where it is provided by statute 32. Jacobs v. Commonwealth, 5 Texas. — Caldwell v. State, 28 Tex. Seig. & R. (Pa.) 315. See also State App. 566, 14 S. W. 122. V, Paine, 1 Ind. 163. Termont. — State v. Ferry, 61 Vt. See § 175 herein. 624, 18 Atl. 451. Charging the time " on the first 34. Reynolds v. People, 17 Abb. Pr. day of August in the present year" (N. Y.) 413. was held good in an indictment which 35. Gill v. People, 3 Hun (N. Y. ), stated the term in its caption as 187, affirmed 60 N. Y. 643. " Fall Term, 1822." State v. Had- 36. Gratz y. Commonwealth, 96 Ky. dock, 9 N. C. 461. 162, 22 S. W. 159. 33. Uiiited States. — United If the plain import of the indict- States V. Potter, 56 Fed. 83. ment be that the offense was corn- Indiana. — State V. Schultz, 57 Ind. mitted prior to the finding of the bill 19. it is not necessary to allege such Massachusetts. — Commonwealth v. fact in express terms. State v. Pratt, Robertson, 162 Mass. 90, 38 N. E. 25. 14 N. H. 456. South Carolina. — State v. Stew- 37. Little v. State (Tex. App.), 19 art, 26 S. C. 125, 1 S. E. 468. S. W. 332. 355 § 325 Chaeging the Offense — Paeticular Averments. that m those cases where time is not of the essence o£ the offense no indictmeoit shall be held insufficient for failure to state it, or for imperfectly stating it, the time of the commission of an offense as alleged in an indictment may be amended, provided it is not an essential element of the offense.^^ ,38. People v. Hoffman, 142 Mich. 531, 105 N. W. 838, decided under Mich. Oomp. Laws, §§11, 575. 356 Charging the Offense — Particulab Averments. CHAPTER XII. Charging the Offense — Particular Averments Contintted. Section 326. When necessary to aver intent. 327. When intent need not be averred. 328. Offense "with intent to defraud;" sufficiency of averment. 329. Malice; necessity of averring; sufficiency of averment. 330. Averment as to wilfulness of act; sufficiency of. 331. Averment as to wilfulness of act; where insufficient. 332. Allegation that offense unlawfully done ; necessity and sufficiency of. 333 Charging that act was " feloniously " done. 334. Use of words " unlawful " or " felonious " in indictment for mis- demeanors. 335. Knowledge; when necessary to aver. 336. Knowledge; when not necessary to aver. 337. Knowledge; necessity of averring; statutes. 338. Sufficiency of averment of knowledge. 339. Setting out instrument or writing as basis of prosecution. 340. Same subject; where writing lost, destroyed, or in hands of defendant. 341. Same subject; attaching instrument to indictment. 342. Same subject; where word in instrument uncertain or illegible. 343. Same subject; effect of mistake. 344. Same subject; where may be omitted. 345. Same subject; obscene publications. 346. Same subject; obscene publications; qualification of rule as to description; New York case. 347. Same subject; obscene publication; effect of statutes. 348. Averments describing personal property; money. 349. Same subject; should aver excuse for failure to give — unknown to grand jury. 350. Same subject; averments as to value. 351. Same subject; averments as to ownership. 352. Averments describing real property. 353. Same subject; averments as to ownership. 354. Names of third persons; necessity of stating. 355. Names of third persons; sufficiency in stating. 356. Names of third persons; names commonly known by. 357. Names of third persons; error in stating; variance; idem sonans. 358. Names of third persons; statutes as to error in stating. 359. Names of third persons; when not necessary to state. 360. Names of third persons; infants. 357 § 326 Chaeging the Offense — Paeticulae Aveements. 361. Names of third persons; In case of corporations. 362. Same subject continued; organization of corporation. 363. Same subject; unnecessary averments. 364. Names of third persons; partner or joint owners. 365. Names of third persons; amendment to correct error in. 366. Charging prior conviction; second conviction changing grade of offense. 367. Same subject; BufBciency of averment. 368. Same subject; as to jurisdiction of prior offense. 369. Same subject; statute making it unnecessary to allege prior con- viction; constitutionality of. 370. Same subject; averment as to discharge; sentence. Sec. 326. When necessary to aver intent. — In those ■where the intent is an essential element of the crime, constituting a material ingredient of the offense, and descriptive of it, such intemt must be charged in the indictment.^ As to the necessity of averring intent it is said in a case in Massachusetts : " The true 1. TTnited States. — Greene v. Mac- Dougall, 199 U. S. 601, 26 S. Ct. 748, 50 L. Ed. 328; Evans v. United States, 153 U. S. 584, 608, 38 L. Ed. 830, 839, 14 Sup. Ct. 934, 939; United States V. Green, 136 Fed. 618; United States V. Garretson, 42 Fed. 22; United States v. Wentworth, 11 Fed. 52. Alaska. — United States v. Alaska Packers' Ass'n, 1 Alaska, 217. Arkansas. — ^Mott v. State, 29 Ark. 147; State v. Eldridge, 12 Ark. 608; Gabe v. State, 6 Ark. 519. California. — People v. Mitchell, 92 Cal. 590, 28 Pac. 597, 788; People V. Ward, 85 Cal. 585, 24 Pac. 785. Florida. — Wiggins v. State, 23 Fla. 180, 1 So. 693. Indiana. — State v. Freeman, 6 Blackf. 248. lo-nra. — State v. Clark, 80 Iowa, 517, 45 N. W. 910. Kansas.— State v. Child, 42 Kan. 611, 22 Pac. 721. Michigan. — Wilson v. People, 24 Mich. 410. Minnesota. — State v. Ullman, 5 Minn. 13. Mississippi. — Edwards v. State (Miss.), 8 So. 464; Norman v. State, 24 Miss. 54. Missonri. — State v. Clayton, 100 Mo. 516, 13 S. W. 819. Nebraska. — ^Winslow v. State, 26 Neb. 308, 41 N. W. 1116; Schaffer v. State, 22 Neb. 557, 35 N. W. 384, 3 Am. St. Rep. 274. New York. — ^Miller v. People, 5 Barb. 203; People v. Lohman, 2 Barb. 216; People v. Enoch, 13 Wend. 159, 27 Am. Dec. 197. Tennessee. — Vaughn v. State, 3 Coldw. 102. Texas. — O'Brien v. State, 27 Tex. App. 448, 11 S. W. 459. Vermont. — State v. Switzer, 63 Vt. 604, 22 Atl. 724, 25 Am. St. Kep. 789; State v. Collins, 62 Vt. 195, 19 Atl. 368. 358 Chaeging the Offense — Paeticulae Aveements. § 326 distinction seems to be this, when by the common law or by the provision of a statute a particular intention is essential to an offense, or a criminal act is attempted but not accomplished, and the evil intent only can be punished, it is necessary to allege the intent with distinctness and precision, and to support the. allega- tion, by proof. On the other hand, if the offense does not rest merely in tendency, or in an attempt to do a certain act with a wicked purpose, but consists in doing an unlawful or criminal act, the evil intention will be presTuned and need not be alleged, or, if alleged, it is a mere formal averment which need not be proved. In such case, the intent is nothing more than the result which the law draws from the act, and requires no proof beyond Wasbingion. — State v. So Ho Me, 1 Wash. 276, 24 Pao. 443; State v. So Ho Ge, 1 Wash. 275, 24 Pac. 442 ; Blanton t. State, 1 Wash. 265, 24 Pac. 439; United States v. Johns, 1 Wash. 363. Sufficiency of averment of in- tent in particular cases, see: Alabama.— White v. State, 86 Ala. 69, 5 So. 674 (indictment for ob- taining money by false pretenses). Arkansas. — State v. Robinson, 55 Ark. 439, 18 S. W. 541 (indictment for assault with intent to kill) ; Fel- ker V. State, 54 Ark. 489, 16 S. W. 663 (indictment for assault with in- tent to kill). California. — ^People v. Forney, 81 Cal. 118, 22 Pac. 481 (information for assault with a deadly weapon ) . Indiana. — State v. Jenkins, 120 Ind. 268, 22 N. E. 133 (indictment for assault and battery with intent to commit murder). Iowa. — State v. Grant, 86 Iowa, 216, 53 N. W. 120 (indictment for conspiracy). Iionisiana. — State v. Causey, 43 La. Ann. 897, 9 So. 900 (indictment for shooting with intent to kill). MicMgan. — People v. Ellsworth, 90 Mich. 442, 51 N. W. 531 (indict- ment for assault and battery). Minnesota. — State v. Haekett, 47 Minn. 425, 50 N. W. 472 (indictment for larceny). Missonri. — State v. Woods, 124 Mo. 412, 27 S. W. 1114 (indictment for assault with intent to kill) ; State V. Noland, 111 Mo. 473, 19 S. W. 715 (indictment for embezzlement of pub- lic moneys). Montana. — ^Territory v. Cadas, 8 Mont. 347, 21 Pac. 26 (indictment for murder in the first degree). Nebraska. — Willis v. State, 43 Neb. 102, 61 N. W. 254 (indictment for murder). Texas. — ^Atkinson v. State, 34 Tex. Cr. 424, 30 S. W. 1064 (indictment for assault with intent to rob) ; Kun- nells V. State, 34 Tex. Cr. 431, 30 S. W. 1065 (indictment for assault with intent to rob) . Utah. — ^People v. Halliday, 5 Utah, 467, 17 Pac. 118 (indictment for shooting with intent to kill ) . 'Wasbington. — State v. Sufferin, 6 Wash. 109, 32 Pac. 1021 (indict- ment for burglary). 359 § 326 Chaeging the Offense — Paeticdlak Averments. that which the law itself supplies."^ So where an act is by statute made criminal only if done with a particular intent, the intent must be alleged and proved according to the terms of the statute.' And where by statute it is made an offense to " wittingly " alter a record an indictment thereunder should charge that the act was so done.* The rule requiring an averment of intent where a material ingredient of the offense has been applied to an indictment for arson ;^ for an assault with intent to commit a felony;* for bur- It is a general mle that 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. State v. West, 10 Tex. 553, Per Wheeleb, J. It is a familiar rnle of criminal pleading, that whenever the intention of a party is necessary to constitute an offense, such intent must be al- leged in every material part of the description where it so constitutes it. Commonwealth v. Boynton, 12 Cush. (Mass.) 499. Per Bigelow, J. Intent may be averred in gen- eral terms. — Evans v. United States, 153 U. S. 584, 608, 38 L. Ed. 830, 839, 14 Sup. Ct. 934, 939. Statutes in some cases modify the rule as to the necessity of averring the intent with which an act is done. Purcelly v. State, 29 Tex. App. 1, 13 S. W. 993; State v. Wilson, 9 Wash. 218, 37 Pac. 424. Indictment for forgery. — ^An averment in an indictment that the instrument was forged and uttered with the " felonious intent to felo- niously cheat and defraud " has been held to be a sufficient averment of the criminal intent, although it is said that there is a useless repetition of epithets. Garmire v. State, 104 Ind. 444, 4 N. E. 54. In an indictment for robTiery the words " felonious " and " rob " have been held to carry with them the intent and to be sufficient as an averment of intent. People v. Butler, I Ida. 231. The tirords " feloniously and maliciously " have been held, ex vi termini, to import that the act charged was done with an unlawful intent. Commonwealth v. Adams, 127 Mass. 15. 2. Commonwealth v. Hersey, 2 Al- len (Mass.) 173, 180. Per Bige- low, J. 3. State V. Malloy, 34 N. J. L. 410. Where the statute makes in- tent the substance of the offense defined therein, an indictment under such statute should state the intent. People V. Martin, 52 Cal. 201. 4. Harrington v. State, 54 Miss. 490, construing an indictment framed under § 2489, Code 1871. 5. Mott v. State, 29 Ark. 147. 6. State V. Child, 42 Kan. 611, 22 Pac. 721; State v. Clayton, 100 Mo. 516, 13 S. W. 819. See State v. Har- rison, 82 Iowa, 716, 47 N. W. 777; State V. Clark, 80 Iowa, 517, 45 N. W. 910; Schaffer v. State, 22 Neb. 557, 35 N. W. 384, 3 Am. St. Rep. 274. 360 Chaeging the Offense — Paeticulae Aveements. § 32T glary;'' for murder in the first degree;* for casting away and destroying a vessel on the high seas f for obtaining a person's sig- nature by false pretenses;^" for perjury ;^^ to an information for forgery and uttering a forged instrument,^^ and to an affidavit for the prosecution of a tenant for the removal by him of property from the premises leased.^^ And it has been decided that tlie conclusion of an indictment for homicide that " so the grand jurors on their oaths aforesaid do find and say that he did felon- iously, purposely, and maliciously kill " the deceased, does not cure the defect in the indictment caused by the failure to aver the intent to kill in describing the offensa^* §1 327. When intent need not be averred. — ^Where the act charged is one which necessarily involves and includes the intent it is not necessary that an intent should be alleged. In tbese cases the intent is tbe natural and necessary consequence of the act done, from which the law infers that the party knew and contemplated the result which followed, and that it was committed with a guilty intention. ^^ So it is said in an early decision in Alabama 7. Winslow V. State, 26 Neb. 308, tent is mmecessary, see following 41 N. W. 1116; O'Brien v. State, 27 'cases: Tex. App. 448, 11 S. W. 459. Dakota. — Territory t. Anderson, 6 8. Wiggins v. State, 25 Fla. 180, 1 Dak. 300 (indictment for larceny). So. 693. See Blanton v. State, 1 Kansas. — State v. Combs, 47 Kan. Wash. 265, 24 Pac. 439. 136 27 Pae. 818 (information for 9. United States v. Johns, 1 Wash. wrongfully embezzling and converting 363. money) ; State v. Bush, 45 Kan. 138, 10. State V. Switzer, 63 Vt. 604, 22 25 Pac. 614 (information for illegal Atl. 724, 25 Am. St. Rep. 789. registration of one as a voter ) . 11. State V. Collins, 62 Vt. 195, 19 Massachusetts. — Commonwealth v. Atl. 368. Shea, 150 Mass. 314, 23 N. E. 47 (in- 12. People V. Mitchell, 92 Cal. 590, dictment for keeping house of ill 28 Pac. 597, 788. fame). 13. Edwards v. State (Miss.), 8 Missouri. — State v. Eowlen, 114 So. 464. Mo. 626, 21 S. W. 729 (indictment 14. Schaffer v. State, 22 Neb. 557, for forgery). 35 N. W. 384, 3 Am. St. Rep. 274. Pennsylvania. — Commonwealth 15. Commonwealth v. Heraey, 2 v. Butler, 144 Pa. St. 568, 24 Atl. 910 Allen (Mass.), 173. indictment for larceny); Commou- Ab to when averment of in- wealth v. Wolfinger, 7 Kulp. 537, 16 361 § 327 Charging the Offense — Paeticulae Averments. that " -whenever one does an act legally wrong in itself, the law presumes the intent to do that act; the act, of itself, evidences the legal intent. The doing of an act in its nature illegal — illegal without any extrinsic qualification — of itself evidences the crim- inal intent."*® And in another case it is declared that 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.-^^ And it is also said that " when the facts going to make out the crime are well pleaded, the law will infer the intent of the accused to commit the crime, as sane men are presumed to intend the plain and obvious consequences of their acts.** So an attempt to commit a wilful and malicious crime is held to import ex vi termini an intent to commit that crime. In such a case the attempt is said to include the intent.*® And where an act is made a criminal offense by statute and intent is not an essential ingredient of the offense, an averment of intent is not necessary.^" Im 'New York the question, as to whether the crime was committed under suah cir- cumstances with reference to intent, as makes it murder in the first degree within the statutory definition, has been held, under several changes of the statute defining that crime, to be one of evidence Pa. Co. Ct. R. 257 (indictment for 16. Stein v. State, 37 Ala. 123, 133. libel). Per Walkee, J. ■West Virginia. — State v. Pearls, 17. State v. West, 10 Tex. 553. Per 35 W. Va. 320, 13 S. E. 1006 (indict- Wheelee, J. ment for furnishing a voter with 18. Tomkins v. State, 33 Tex. 228. liquor on election day). 19- Commonwealth v. McLaughlin, The theory of the la-m is, that a 105 Mass. 460, holding that an aver- eriminal intent is a necessary ingre- ment that the defendant attempted dient of every indictable offense. The " unlawfully, wilfully and mali- maxim is. Actio non facit reum, nisi ciously to administer " poison to a mens sit rea. Stein v. State, 37 Ala. horse sufficiently charged the attempt 123, 132. Per Walkee, J. and the intent. An intent to kill need not be 20. Bolen v. People, 184 111. 338, averred in an indictment charging 56 N. E. 408; People v. Walbridge, 6 that the killing was done while the Cow. (N. Y.) 512; People v. Web- accused was engaged in the commis- ster, 17 Misc. (N. Y.) 410, 40 N. Y. sion of a felony. Cox v. People, 80 N. Supp. 1135; State v. Smith, 17 R. I. Y. 500. 371, 22 Atl. 282. 362 Chaeginq the Offense — Paetiodlak Aveements. §§ 328, 329 determinable by the jury under the instructions of the court.- ^ § 328. Offense "with intent to defraud" — Sufficiency of averment. — In an indictment for an offense done with intent to defraud it is sufficient to aver in the general words that it was done " with intent to defraud," it being held that the pleader is not required to set out the evidence or facts going to prove the intent to defraud or the particular means by which the party named in the indictment was to be defrauded.*^ § 329. Malice — Necessity of averring — Sufficiency of aver- ment. — In case of felony in which malice is the gist of the offense, an averment of malice is essential or otherwise the indictment will be defective.^* And where a malicious intent is an essential in- 21. People V. Conroy, 97 N. Y. 62. In case of a homicide, the paT- ticular intent with which it was committed was not required to be set forth even under the strictest rules of pleading, it being uniformly deemed sufficient to allege it to have been done feloniously, with malice afore- thought, and contrary to the form of the statute. People v. Conroy, 97 N. Y. 62, 68, citing People v. Enoch, 13 Wend. (N. Y.) 159; Kennedy v. Peo- ple, 39 N. Y. 245; People v. Fitzger- ald, 37 N. Y. 413. 22. McCarty v. United States, 101 Fed. 113, 41 C. C. A. 242; United States V. Ulrici, 3 Dill. C. C. 532, 535, Fed. Cas. No. 16,594. 23. Maxwell v. State, 68 Miss. 339, 8 So. 546; Sarah v. State, 28 Miss. 267, 61 Am. Dec. 544. See Mann v. State, 47 Ohio St. 556, 26 N. E. 226, 11 L. R. A. 656. In an indi.ctment for murder an allegation that it was committed with " malice aforethought " is a suf- ficient averment of express malice in its commission. Smith v. State, 31 Tex. Cr. 14, 19 S. W. 252; Giebel v. State, 28 Tex. App. 151, 12 S. W. 591. But an indictment for murder has been held fatally defective where it alleges that .the killing was done with malice " aforesaid " instead of " aforethought." State v. Green, 42 La. Ann. 644, 7 So. 793. And like- wise where an indictment against two charged that the act was committed of " his " malice aforethought. State v. Jones, 45 La. Ann. 1454, 14 So. 218. Averment of malice need not be repeated in that part of indict- ment charging one with being acces- sory where, by apt and appropriate words, a reference is made to the phrase " with malice aforethought and with premeditation and delibera- tion " Tised in charging the principal. Jones V. State, 58 Ark. 390, 24 S. W. 1073. See State v. Hunter, 42 La. Ann. 814, 8 La. 583, as to necessity of repeating words "malice afore- thought" in an indictment for shoot- 3G3 § 330 ClIAEGING THE OfFENSE PaETICULAK AvERMENTS. gredient in the constitution of an offense created by statute, altliougli it is not made so by the express words of the act, an in- dictment under it will be invalid unless it contain an averment of the malicious intent.^* In this connection it has been decided that an ailegatio'U that the act was done feloniously and wilfully suffi- ciently charges that it was done maliciously-^^ § 330. Averment as to wilfulness of act — Sufficiency of In many instances a statute makes a certain act an offense where it is done wilfully and in such a case wilfulness is an essential element of the crime and, in describing the offense it is necessary that the word wilfully should be used, or words equivalent in their mean- ing.^® While, however, it is not always necessary to follow the ing, while lying in wait with intent to murder. In New York in an indictment under the Act of 1876, specifying the cases which should be murder in the first degree, it was not necessary that the technical words " malice afore- thought," which were essential in an indictment at common law, should be used. Cox V. People, 80 N. Y. 500. Tlie tvords " falsely and mali- ciously," if essential in an indict- ment for conspiracy, should be used in connection with the act which it is charged was done by the conspirators and not in connection with the alle- gation of conspiracy. Elkin v. Peo- ple, 24 How. Pr. (N. Y.) 272. In England in an indictment for litael under 6 and 7 Vict., chap. 90, § 5, it is not necessary to aver malice. P^eg v. Munslow (1895), 1 Q. B. 758, 64 L. J. M. C. (N. S.) 138. 24. Sarah v. State, 28 Miss. 267, Gl Am. Dec. 544. 25. Aikman v. Commonwealth, 13 Ky. Law Rep. 894, 18 S. W. 937, so holding in the case of an indictment for arson. See also Commonwealth V. Carson, 166 Pa. St. 179, 30 Atl. 985, holding that an indictment under Pa. Act, April 22, 1863, P. L. 531, for ■' wilfully and maliciously " entering a building was not defective by rea- son of the use of the word " feloni- ously " in place of wilfully. But see Maxwell v. State, 68 Miss. 339, 8 So. 546. 26. United States. — United States V. Edward, 43 Fed. 67. Arkansas. — Casey v. State, 53 Ark. 334, 14 S. W. 90. California. — People v. Turner, 122 Cal. 679, 55 Pac. 685. Florida. — Savannah F & W. R. Co. V. State, 23 Fla. 579, 3 So. 204. Maine. — State v. Hussey, 60 Me. 410, 11 Am. Rep. 209. Missouri. — State v. Day, 100 Mo. 242, 12 S. W. 3U5. New Hampskire.— State v. Gove> 34 N. H. 510. Tennessee. — Morrow v. Statn, 10 Humph. 120. 'Wisconsin. — State v. Delue, 2 Pinn. 204. 364 Chaeging the Offense — Paeticulae Aveements. § 330 literal language of the act in framing indictments for statutory offenses it is essential that either the same word, or words of equivalent meaning, and substantially synonymous, should be used.^^ So it is said " It is undoubtedly safer to follow the lan- guage of the statute in describing the offense charged in the indict- ment. But it has been repeatedly held that words equivalent in their meaning to those in the statute may be used. So, the use of words of more general signification, but clearly including in their meaning all that is embraced in the language of the statute has received, in many instances, judicial sanction. But wherever there is a. change of phraseology, and a word not in the statute is substi- tuted in the indictment for one that is, and the word thus substi- tuted is equivalent to the word used in the statute, or is of more extensive signification than, and includes it, the indictment will be sufficient."^* In this connection the word " maliciously " has been held sufficient in an indictment though the statute uses the word " wilfully," it being declared that the word " malice " im- plies wilfulness.^* So the word " feloniously " instead of " wil- fully " has been held sufficient.*"* And it has been held that an indictment charging that " the defendant did unlawfully, felon- iously, and maliciously, with intent to kill, cut and wound " a certain person is sufficient though the word wilfully is used in the statute, it being declared in this case that the words used import ^ an exercise of the will, and convey the same idea as the words of [the statute.^ ^ Again where the statute makes it a felony where one wilfully and maliciously does a certain act an indictment thereimder will be sufficient though tbe word " wilfully " is omitted in the accusatory part if, as to the mode of committing 27. Harrington v. State, 54 Miss. ing of an act includes the wilful 490. Per Chalmers, J. doing of it. Malice includes intent 28. State v. Robbins, 66 Me. 324, and will." Per Appleton, J. 328. Per Appleton, J. See also Funderbunk v. State, 75 29. State v. Robbins, 66 Me. 324, Miss. 20, 21 So. 658. wherein it is said: "A man may do 30. State v. McDaniel, 45 La. Ann. an act wilfully and yet be free of 686, 12 So. 751. malice. But he cannot do an act 31. Flinn v. Commonwealth, 81 maliciously without at the same time Ky. 186, 23 S. W. 346. doing it wilfully. The malicious do- 365 § 331 Chaegikg the Offense — Paeticulae Aveements. the offense, it is charged that it was done " wilfully."^^ But though words of similar meaning may be used it is said that it is safer to pursue strictly the words of the statute in such cases than to attempt to resort to such words.^^ § 331, Averments as to wilfulness of act — When insufficient. — The word " unlawfully " is not one of equivalent signification with " wilfully." The latter word, used in a statute making an act so done a criminal offense, is descriptive of the offense thereby created and necessarily implies that the act shall be done know- ingly and of purpose which is not expressed hy the word unlaw- fully.®* So the words " unlawfully and maliciously " used in charging an offense under a statute making it criminal to do the act, " vsdUfully and maliciously " are not an equivalent of the latter words.** And where a statute makes criminal the doing of an act " wilfully and maliciously," an indictment thereunder has been held insufficient which charges that the act was done " felon- iously and unlawfully," the latter term not being synonymorus, equivalent, of the same legal import, or substantially the same as the former.'® Again where the statute defines the offense as con- sisting iui " wilfully and maliciously killing," an indictment is not sufficient which chargesi that the killing was " felonious, unlawful (32. Toler v. Commonwealth, 14 Ky. " Unlawfully doing a thing is not 529, 23 S. W. 347. synonymous with wilfully doing it. 33. State v. Delue, 2 Finn. (Wis.) A man may do many things wilfully 204. It was said in this case : " Al- which are not unlawful, and he may though the ancient strictness in fram- do many things unlawfully which are ing indictments is, in many instances, not wilfully done." Per Appleton, J. relaxed, yet where an indictment is See also Rex v. Davis, 1 Leach, 556. grounded upon such a statute, we 36. State v. Gove, 34 N. H. 510. think it a safe rule of practice to pur- The court said: "There can be no sue strictly the words of the statute doubt that the words ' wilfully and in charging the offense." Jer Jack- maliciously,' in the statute under SON, J. consideration, are descriptive of the See also State v. Robbins, 66 Me. offense defined — are an essential part 324; Barthelow v. State, 26 Tex. 175. ot that description. The burning .34. Morrow v. State, 10 Humph. must be wilful and malicious — done (Tenn.) 120. with a wilful and malicious intent— 35. State v. Hussey, 60 Me. 410, 11 or the statute offense is not corn- Am. Rep. 209. The court said: mitted." Per Fowmib, J. 366 Chaeging the Offense — Particulae Aveements. § 332 and malicious.'"^' And where a statute provides that one shall be guilty of perjury who, after having taken an oath, " wilfully and contrary to such oath,- states as true any material matter which he knows to be false," an indictment thereunder which omits such words in the charging part is fatally defective.^* So in an early English case where it was charged in the indictment that the de- fendant " then and there falsely and maliciously " gave false testi- mony it was held on a motion in arrest of judgment that the indict- ment was bad in not averring that the defendant wilfully and corruptly swore falsely,^" and a similar conclusion has been reached in the Federal courts.*" And it is said in reference to the offense of perjury, that " at common law, where wilfulness was an essential element of the crime, and in all the States of this country which by statute have adopted a definition of the crime making wilfulness an element thereof, it is held uniformly and without exception, that the defendant must be charged with wilful false swearing, and the wilfulness of the act must be proved-"*^ §'. 332. Allegation that offense unlawfully done — Necessity and sufficiency of. — Where the offense charged is an offense at common law, and is itself manifestly illegal, the averment that it was done unlawfully is not necessary.*^ And it has been declared that when the fact laid in an indictment appears to be unlawful, it is not necessary to allege it to have been unlawfully 37. State v. Delue, 2 Finn. (Wis.) 42. State v. Hodges, 55 Md. 127. 204. It was said in this case : " Such Per Robinson, J., citing 1 Chitty a departure from the language of the Crim. Law, 160; 2 Hawk P. C, § 25. statute, in charging the offense com- See also Barnard v. State, 88 Wis. mitted, is unauthorized by any of the 656, 60 N. W. 1058. standard authorities upon criminal In an indictment fop murder law." Per Jackson, J. the word " unlawful " need not be 38. People v. Turner, 122 Cal. 679, used. Jerry v. State, 1 Blaekf. (Ind.) 55 Pae. 685. 395. It is not necessary to charge 39. People v. Turner, 122 Cal. 679, that the kilUng was " unlawfully " 55 Pac. 685. done. Hunter v. State, 30 Tex. App. 40. United States v. Stevens, 43 314, 17 S. W. 414; Hall v. State 23 ^ed. 67. Tex. App. 146, 12 S. W. 739; jlck- 41. People v. Turner, 122 Cal. 679, son v. State, 25 Tex. App. 314, 7 S. 55 Pac. 685. W. 872. 367 ■§ 333 Chaegixg the Offense — Particulae Avekments. done, unless it be a part of the descriptiom of the offense> as defined by statute.^^ But even though the statute uses the word " unlaw- ful " it is not absolutely essential that the- word "unlawful" or " unlawfully " should be used in an indictment under the statute. So where the word " feloniously " was used in an indictment instead of the word " unlawful," as used m the statute, it was held sui&cient, the former word being said to be of much more force and more comprehensive meaning than the latter.^* And it has also been decided that an indictment which eontainsi the words ^' injuriously and wrongfully " instead of the word " unlawfully " is sufficient.*^ § 333. Charging that act was " feloniously " done In charg- ing a felony at common law it was a general rule that the word " feloniously " or its equivalent was essential to the sufficiency of the indictment and in the absence of a statute to the contrary, this is also the rule in regard to the charging of an offense which is a felony by statute.*® So an indictment for an assault with intent 4i3. Commonwealth v. Twitehell, 4 Cush. (Mass.) 74. See State v. Mar- tin, 107 N. C. 904, 12 S. E. 194. An indictment nnder the game la^rs in Maine need noc allege act was done " unlawfully." State v. Tib- betts, 86 Me. 189, 29 Atl. 979. An indictment for receiving stolen goods should contain an averment that the goods were unlaw- fully received. State v. Hodges, 55 Md. 127. 4*. Franklin v. State, 108 N. C. 47, 8 K. E. 865. See also Greer v. State, 50 Ind. 267, 19 Am. Rep. 709; State v. Miller, 190 Mo. 449, 89 S. W. 377, holding it sufficient where it is al- leged that the acts charged were com- mitted by the defendant knowingly, wilfully and feloniously. 4-5. State v. Vermont R. R. Co., 27 Vt. 103. 46. Arkansas. — State v. Eldridge, 12 Ark. 608. Illinois.— Bolen v. People, 184 111. 338, 56 N. E. 408; Ervington v. Peo- ple, 181 111. 408, 54 >l. E. 981. Iowa. — State v. Judd, 132 Iowa, 296, 109 N. W. 892 ; State v. Andrews (Iowa), 50 N. W. 549. Kentucky. — ^Kaelin v. Common- wealth, 84 Ky. 354, 1 S. W. 594; Hall V. Commonwealth, 15 Ky. Law Rep. 856, 26 S. W. 8; Jane v. Com- monwealth, 3 Mete. 18. Mississippi. — Bowler v. State, 41 Miss. 540; Sarah v. State, 28 Miss. 267. MissonrL — State v. Feazell, 132 Mo. 176, 33 S. W. 758; State v. Rec- tor (Mo.), 23 S. W, 1074; State v. Herrill, 97 Mo. 105, 10 S. W. 387; State V. Terry, 30 Mo. 368; State v. 3G8 Chaeging the Offense — Paeticulab Aveements. § 333 to commit a rape has been held insufBeient where it omitted the word " feloniously " in the description of the offense,*'' as has also an indictment for rape,*^ for false pretenses,*' and for other offenses whidi are felonies.^" And in an indictment for the com- mon law crime of murder it is decided that the indictment must charge in positive language that the mortal wound was feloniously inflicted, and it is said that this may be done by so arranging the language as to malce the word " feloniously " used in charging the assault, modify the different acts constituting the crime, or it may be repeated in the different portions of the indictment.'^ This principle as to the necessity of repeating the word feloniously is sustained by numerous decisions in indictments for other offenses."*^ But where the gravamen of the offense created by the Feaster, 25 Mo. 324; State v. Gil- bert, 24 Mo. 380. Montana. — State v. Rechnitz, 20 Mont. 488, 52 Pae. 264. New York. — People v. Fish, 4 Park. Cr. R. 206. North Carolina. — State v. Cald- well, 112 N. C. 854, 16 S. E. 1010; State V. Bryan, 112 N. C. 848, 16 S. E. 909. Pennsylvania. — Coramonwealth V. Schall, 12 Pa. Co. Ct. 554. Texas. — Cain v. State, 18 Tex. 387. ■West Virginia. — State v. Whitt, 39 W. Va. 468, 19 S. E. 873. It is not an indictment for a felony where tlie act is not charged to have been done " feloniously." State V. Whitt, 39 W. Va. 468, 19 S. E. 873. Such an indictment only charges a misdemeanor. Common- wealth V. SchaU, 12 Pa. Co. Ct. E. 554. That other words will not snpply the omission of the words " feloniously " or " with felonious in- tent," see Kuelin v. Commonwealth, 84 Ky. 354, 1 S. W. 594. 47. State v. Scott, 72 N. C. 461, citing and approving State v. John- son, 67 N. C. 55, and holding that the indictment should charge the assault with intent, etc., " feloniously to ravish and carnally know." Compare Territory v. Godfrey, 6 Dak. 4G, decided under Dak. Pen. Coae, i 292. 48. Hall v. Commonwealth, 15 Ky. Law Rep. 856, 26 S. W. 8. 49. State v. Caldwell, 112 N. 0. 854, 16 S. E. 1010; State v. Bryan, 112 N. C. 848, 16 S. E. 909. 50. See cases in first note to this section. 51. Wright v. United States (Okla. 1907), 90 Pac. 732. Mnst charge act was done " feloniously " in indictment for mnrder. — Ervington v. People, 181 111. 408, 54 N. E. 981; State v. An- drews, 84 Iowa, 88, 50 N. W. 549; Kaelin v. Commonwealth, 84 Ky. 354, 1 S. W. 594; State v. Kector (Mo.), 23 S. W. 1074; State v. Herrell, 97 Mo. 105, 10 S. W. 387. 52. tTnited States.— St. Clair v. 369 § 334 Chaeging the Offense — Pabticulak Aveembnts. statute was the felonious obtaining of goods by false and fraudu- lent representations and statements, and these facts were sufficiently averred in the indictment, it was decided that the indictment was sufficient though it did not expressly allege that the defendant " feloniously intended " to commit the crime.^* In this connection it was said in an early case by the Uuited States Supreme Court that in cases where felonious intent constitutes no part of the crime, that being complete, under the statute, without it, and de- pending upon another and different criminal intent, the rule at common law as to charging that the act was feloniously done, can have no application in reason, however it may be upon authority.*'' Where, however, the word " feloniously " is one which is essential to the sufficiency of an indictment, an amendment inserting such word in the indictment will not be x>ermitted.^^ §1 334. Use of wrords " unlawful " or " felonious " in indict- ments for misdemeanors. — In the case of misdemeanors where the fact laid in the indictment appears to be unlawful it is unneces- sary to allege it to be unlawfully done, it being said that such an averment is in no case essential unless it be a part of the descrip- tion of the offense as defined by some statute, for if the fact as stated be illegal, it would be superflous to allege it to be unlawful.'" And it has been decided that where an offense which was a misde- meanor at common law is made a felony by statute it is not neces- sary to allege that the act was feloniously done.^^ And as a gen- eral rule the use of the word " feloniously " in charging a misde- Unitcd States, 154 U. S. 134, 38 L. 54. United States v. Staats, 8 How. Ed. 936, 12 Sup. Ct. 1002. (U. S.) 41, 45. Per Nelson, J., cited Indiaaia.— Holland v. State, 131 and followed in Bannon v. United Ind. 568, 31 N. E. 359. States, 156 U. S. 464, 15 Sup. a. 467. Montana—See State v. McCaf- See also State v. Felch, 58 N. H. 1. fery, 16 Mont. 33, 40 Pac. 63. ^^ ^^^ ^- I^'^'^*"' ^0 La. Ann. " 409. North Carolliia.-State v. Owen, ^ ^^^^^ ^ g^^^^ ^ ^^^^ 502 1 Murph. 452. 5^ B^^^^ ^ g^^^^_ 22 Ala. 43; ■ntah.— People v. Davis, 8 Utah, Beasley v. State, 18 Ala. 535. See 412, 32 Pac. 670. § 333 herein as to necessity of charg- 53. State v. Turley, 142 Mo. 403, ing statutory offense to have been 44 S. W. 267. " feloniously " done. 370 CiiAEGiivG THE Offense — Paeticulak Aveements. § 335 meanor is no ground for quashing the indictment,''* but in such a case the word " feloniously " may be rejected as surplusage.®* § 335. Knowledge — When necessary to aver. — Where knowl- edge is an ingredient of the ofFense it is essential that there should be an averment thereof.®'* In the application of this rule it is decided that in an indictment for obstructing a public officer in the per- formance of his duties, knowledge of his official character should be alleged.®^ And to charge a person as accessory it is said that knowledge of the commission of a crime is, and always has been, mecessary.®^ And in an indictment against a justice of the peace for wilful misdemeanor in office there should be an averment that the act was done knowingly and corruptly. ^^ An averment of 58. State v. Sparks, 78 Tnd. 166; State V. Staton, 88 N. C. 654, citing State V. Slagle, 82 N. C. 653; State V. Upchurch, 9 Ired. L. ( N. C. ) 454. 59. Commonwealth v. Philpot, 130 Mass. 59 ; Commonwealth v. Squire, 1 Mete. (Mass.) 258; State v. Crum- mey, 17 Minn. 72 ; Lohman v. Restell, 1 N. Y. 379; Hess v. State, 5 Ohio, 5. 60. United States. — United States V. Nathan, 61 Fed. 936. Alabama. — Stein v. State, 37 Ala. 123. California. — ^People v. Smith, 103 Cal. 563, 37 Pac. 516; Ex parte Gold- man (Cal. App. 1906), 88 Pae. 819. Indiana. — State v. Ross, 4 Ind. 541. Kentucky. — Commonwealth v. Stout, 7 B. Mon. 247. SUcliigaii. — People v. Fitzgerald, 92 Mich. 328, 52 N. W. 726; People V. Behee, 90 Mich. 356, 51 N. W. 515. MissiBsippi. — Gates v. State, 71 Miss. 874, 16 So. 342. BfiasoTiri. — State v. Gardner, 2 Mo. 23. OUo. — ^Bimey v. State, 8 Ohio, 230; Gatewood v. State, 4 Ohio. 386. V. Is- 47 Sonth Carolina. — State v. Brown, 2 Speers L. 129. Virginia. — Commonwealth rael, 4 Leigh, 675. England. — ^Eeg v. Philpots, Eng. Com. Law, 112. It is competent evidence in order to shoir a scienter on the trial of an indictment for uttering a forged note, to prove that the pris- oner uttered another forged note of the same bank on the same day, al- though he had been acquitted on a trial for that oflFense. State v. Robin- son, 16 N. J. L. 507. 61. State V. Maloney, 12 R. I. 251. Knowledge that person as- saulted was an officer is a necessary averment in an indictment for the ag- gravated offense of assault upon an officer in the lawful discharge of his duties. Johnson v. State, 26 Tex. 117. See Commonwealth v. Kirly, 2 Cush. (Mass.) 577, as to sufficiency of averment of knowledge. 62. Ex parte (Soldman (Cal. App. 1906), 88 Pac. 819. 63. State v. Gardner, 2 Mo. 23. See State v. Roas, 4 Ind. 541. 371 § 336 Chabging the Offense — Paeticulae Aveements. knowledge is also essential in an indictment for uttering a forged instrument.®* And where an indictment is brought against one for obtaining money by false pretenses it is held essential to its sufficiency that there should be an averment that the accused knew the representations were false or that they were false in fact.^* So it has been said that " where on© is indicted for selling an obscene book, or for an indecent exposure of the person, or for keeping and suffering to go at large a dog of ferocious and furious n,ature, or for bringing into a public place an aiiimal or person infected with a communicable disease, or for selling unwholesome meat, or for selling a diseased cow, or for uttering a forged note, or for any offense of like character, it is held that an averment of knowledge is necessary."*® § 336. Knowledge — When not necessary to aver. — ^It is a generally accepted rule that where the statement of the act, neces- sarily includes a knowledge of the illegality of the act, no aver- ! ment of knowledge is required.®'^ It is not necessary to allege 64. People v. Smith, 103 Cal. 563, 37 Pae. 516; Gates v. State, 71 Miss. 874, 16 So. 342. 65. People v. Behee, 90 Mich. 356, 51 N. W. 515. 66. Stein v. State, 37 Ala. 123, 133. Per Walkee, J. 67. TTnited States. — United States V. Debs, 65 Fed. 210; United States V. Holmes, 40 Fed. 750 ; United States V. Jolly, 37 Fed. 108. Alabama. — Stein v. State, 37 Ala. 123. Kentucky. — Commonwealth v. Stout, 7 B. Mon. 247. Massachusetts. — Commonwealth v. Raymond, 97 Mass. 567. Sonth Carolina. — State v. Brown, 2 Speers L. 129. VenuoiLt. — State v. Carpenter, 20 Vt. 9. An indictment against a honse, as a dram shop and nuisance, when a lien is not sought on the property, need not aver the owner's knowledge of the unlawful traffic. Our House No. 2 v. State, 4 G. Greene (Iowa), 172. An indictment under the El- kins Act (Act Feb. 19, 1903, chap. 708, 32 Stat. 847; U. S. Comp. St. Supp. 1905, p. 599), where all the acts constituting such offense took place prior to the passage of the Hep- burn Law (Act June 29, 1906, chap. 3591, § 10, 34 Stat. 584), which was found after the passage of the latter bill, held sulflcient, though it did not allege that the giving of the re- bates was done " knowingly," though such allegation would be necessary under the latter law. United States V. Delaware, L. & W. R. Co., 152 Fed. 269. 372 Chakging the Offense — Pakticulae Aveements. § 337 Imowledge where the case is one in which the defendant is bound to know the facts and obey the law at his peril, as in the case of laws against the sale of intoxicating liquor or adulterated milk, and many other police, health and revenue regulations. And this is declared to be the general rule where acts which are not mala in se are made mala prohibita from motives of public policy, and not because of their moral turpitude or the criminal intent with which they are committed.®® So in an early case in South Carolina it is said : "A scienter is never necessary to be alleged, except when the crime is not complete, without some extrinsic circumstance within the prisoner's knowledge, as in cases of aiding a prisoner to escape, uttering a forged note or bill, and cases of that description, where, without the scienter, the act is free from guilt."®* § 337. Knowledge — Necessity of averring — Statutes. — Where by statute knowledge is an essential element of the offense, it is essential to the validity of an indictment that there should be an averment of knowledge therein in the description of the offense.''*' And where the language of the statute is general but is intended to include only those who had knowledge, it is essential Indictment of bankrupt for 489; Commonwealtli v. Waite, 11 Al- concealing money, belonging to len (Mass.), 264. See also Common- iis estate, from trustee. An indict- wealth y. Sellers, 130 Pa. St. 32, 18 ment for such an offense which Atl. 541. avers that the accused did un- 69. State v. Brown, 2 Speers L. (S. lawfully, knowingly, wilfully and c. 129. Per Evans, J. fraudulently conceal from his trus- ^g ^^^^^ grates. - United tee certain property belonging to his g^^^^ ^ ^.^^j,^ ^q. ^ g g^^. ^^.^^^ estate in bankruptcy, and which said ^^^^^ ^ Watkinds, 6 Fed. 152. property was in his hands and posses- sion, sufficiently charges that the ac- Alabama.— Davis v. State, 68 Ala. J 1 iu 4. j-v, 4. 1, 58, 44 Am. Eep. 128. cused knew that the property he was ^ charged with concealing belonged to California. — ^People v. Mitchell, his estate in bankruptcy. SIcXiel v. ^2 Cal. 590, 28 Pac. 597. United States, 150 Fed. 82 (C. C. A.). Indiana.— Powers v. State, 87 68. Commonwealth v. Raymond, 97 Ind. 97. 567. Per Fosteb, J., citing 3 Massachnsetts. — Commonwealth v. Greenl. Ev., § 21; Commonwealth v. Boynton, 12 Cush. (Mass.) 499. Boynton, 2 Allen (Mass.), 160; Com- Mississippi. — Gates v. State, 71 monwealth v. Farren, 9 Allen (Mass.), Miss. 874, 16 So. 342. 373 § 338 Chaeging the Offense — Paeticdlae Aveements. that knowledge should be averred.''* So in the case of a sale of diseased meat or impure food, prohibited by statute, the statute is to be construed as limiting the general words to cases where the accused had knowledge of the quality of the article, and it is not in all cases sufficient to charge the offense in the language of the statute J^ § 338. Sufficiency of averment of knowledge It is not neces- sary that the word " knowingly " should be used to aver knowl- edge, the use of other words having the same meaning being suffi- cient.''^ So the use of the words " well knowing " has been held to be a sufficient allegation of knowledge,^* as had also the use of the word " secretly,"^* and " unlawfully."''® And an indictment charging that the defendant " did wilfully, unlawfully, and know- ingly, and with intent to defraud the revenues of the United State", smuggle and clandestinely introduce into the United States " pre- pared opium, sufficiently alleges scienter.''^ And it has been de- cided that the word " knowingly " is not necessary to an indict- Ohio. — Gatewood v. State, 4 Ohio, 386. Virginia. — Bailey v. Common- wealth, 78 Va. 19. 71. Schmidt v. State, 78 Ind. 41. 72. Schmidt v. State, 78 Ind. 41. 73. Commonwealth v. Hulbert, 12 Mete. (Mass.) 446, holding under a statute providing that it should be an offense " if any person shall de- signedly, by any false pretence, and with intent to defraud, obtain from any other person any money or any goods," that an indictment was suf- ficient which charged that the defend- ant " designedly and unlawfully did falsely pretend," etc. Stifficiency of averment of kno-wledge. — Hester v. State, 103 A!a. 83, 15 So. 857 (indictment for re- ceiving and concealing stolen goods) ; Commonwealth v. Devine, 156 Mass. 224, 29 N. E. 515 (indictment for subornation of perjury). 74. Huggins v. State, 41 Ala. 393. 75. Sutton V. State, 9 Ohio, 133, holding that an averment that a de- fendant secretly kept instruments for counterfeiting sutRciently showed a scienter. 76. United States v. Bardenheier, 49 Fed. 846, so holding in the case of an information charging the unlawful altering and changing of revenue stamps. 77. Dunbar v. United States, 156 U. S. 185, 15 Sup. Ct. 325. Mr. Jus- tice Bbewee said: "The language of the indictment quoted excludes tlie idea of any unintentional and ignor- ant bringing into the country of pre- pared opium upon which the duty had not been paid, and is satisfied only by proof that such bringing in waa 374 Chaegikg the Offense — Pabticulae Aveements. § 339 ment because used in a statute where it is liere used in reference to the proof.''* Again where a defendant is charged with " know- ingly " depositing in the post office an obscene letter the word ■' knowingly " will be regarded as qualifyiag the fuU act charged to be done and is not limited to the mere act of depositing in the post office. And in such a case an objection that it is not averred that the defendant had knowledge of the contents of the letter or envelope placed by him in the post office will not be sustained.^® § 339. Setting out instrument or writing as basis of prosecu- tion. — ^In the application of the general rule requiring criminal charges to be preferred with certainty it is decided that the act or instrument, or both, constituting the basis of prosecution, should be described with certainty, where it is in the power of the grand jury or other accusing tribunal to thus describe it or them, and that where it is not, such fact should be stated in the official accu- sation, as an excuse for want of certainty-®'* And it is declared that by all rules of pleading, criminal as well as civil, when a done intentionally, knowingly and with intent to defraud the revenues of the United States. Indeed, the word ' smuggling,' as used, carries with it the implication of knowl- edge." 78. Roheson v. State, 3 Heisk. (Tenn.) 266. 79. United States v. Nathan, 61 Fed. 936. 80. Whitney v. State, 10 Ind. 404. "It is a irell settled rale of the common law pleading that when the words of a document are essential ingredients of an offense as in for- gery, passing counterfeit money, sell- ing lottery tickets, sending threat- ening letters, libel (Whart. Cr. PI. & Pr., § 167, 8th ed.), or a challenge to fight, or for printing, publishing or distributing obscene papers (Com- monwealth V. Tarbox, 1 Oush. [Mass.] 66, 66n), the document should be set out in words and figures." People v. Wise, 3 N. Y. Cr. R. 303. Per Nott, J. In an indictment for forgery the instrument forged should be set out either with particularity, as was required by the earlier cases (United States V. Smith, 2 Cranch C. C. HI; United States v. Peacock, 1 Cranch C. C. 215; Zellers v. State, 7 Ind. 659; People V. Kingsley, 2 Cow. [N. Y.] 522; People v. Wise, 3 N. Y. Cr. R. 303), or in substance, the latter mode being generally regarded as sufficient (State V. Callahan, 124 Ind. 364, 24 N. E. 732; State v. Sherwood, 41 La. Ann. 316, 6 So. 529; Ferguson v. State, 25 Tex. App. 451, 8 S. W. 479; Hardin v. State, 25 Tex. App. 74, 7 s'. W. 534; State v. Henderson, 29 W. Va. 147, 1 S. E. 225). The substance and effect of the instrument aliould be 375 § 339 Ohaegino the Offense — Paeticular Aveemewts. •written document is relied on to sustain the prosecution or plain- tiff's case, it must be set out either verbatim or in substance, and not a statemeiit of the opinion of the pleader as to the effect it was BO set out in an indictment for for- gery that the court may see that it was such an instrument, that the for- gery of it would constitute a crime, Wallace v. People, 27 111. 45. In an indictment for forging an instmment in a foreign lan- gnage there should be a count in the indictment containing an English translation of the instrument. So in an early English case, where the pris- oner had been convicted of forging an instrument (purporting to be a Prus- sian treasury note) in a foreign lan- guage, judgment was arrested on the ground that there was no count in the indictment containing such a transla- tion. King V. Goldstein, 7 Bug. Com. Law, 685. The English precedents for libel, as well as in most of the States of the Union, require the libelous matter to be stated in full in the in- dictment, that the court may deter- mine whether the article is libelous. McNair v. People, 89 111. 441. The oath, in an indictment for perjury in the taking of an oath by an insolvent, on presenting his petition for a discharge, may be set forth in substance, and where it is set forth to be " in substance and to the effect following, to wit,'' an ex- act recital is not necessary. People v. Warner, 5 Wend. (N. Y.) 271. An affidavit on which a per- jury charge is based need not be set out in haec verba under a statute providing that only the substance of the offense need be charged and that an affidavit, deposition or certificate need not be set forth (United States v. Law, 50 Fed. 915, decided under U. S. Kev. Stat, § 5396). So in New York it is held that such an affidavit need be set forth only in substance and effect under Code Crim. Proc, § 291 (People v. Ostrander, 19 N. Y. Supp. 328, 45 N. Y. St. R. 559). If a count in an indictment for perjury undertake to set ont Gontinously the substance and ef- fect of what the defendant swore when examined as a witness, it is necessary in support of such a count to prove that in substance and effect he swore the whole of that which is thus set out as his evidence, though the count contains several distinct assignments of perjury. Rex v. Leese, 2 Camp. 134, wherein Lord EUenborough said: " It is essential to the security of in- nocence that words set out in the record should be either literally or substantially proved." AVhere the larceny of a rail- road ticket of a, certain value is charged it is held that the informa- tion charging it is demurrable where it does not show that it was signed dated and stamped so as to make it effective. State v. Holmes, 9 Wash. 528, 37 Pac. 283. An indictment charging the defendant with having a conn- terf eit bank note in his possession with intent to pass it has been held sufficient, though the bank note is not set forth in the indictment and no reason for the omission is stated. 376 Chaeging the Offense — Paeticulae Aveements. § 340 intended to or might produce.®* But where the -writing or instru- ment is merely collaterally connected with the offense and is not the basis of the prosecution it is not necessary to set it out.®^ § 340. Same subject — Where writing lost, destroyed or in nands of defendant. — In some cases it may happen that the writ- ing is loet, destroyed or in the hands of the defendant and where such a condition exists a failure to set out the writing in an, indict- ment based thereon will be excused by a proper averment setting forth the reason for such failure, in whioh case also the instrument should be so described in general terms, at least, as to show the offense charged.®^ So in an indictment for forgery it is a general rule that the instrument forged should be particularly described, but if it is in the hands of the defendant, or lost or destroyed by him, the indictment may show this excuse, and set forth the instru- ment in general terms, if it contains enough to show the offense.** And though an indictment for passing counterfeit money purports to set forth the counterfeit note according to its tenor, and contains no averment of its loss or desti'uction, the production of the same may be dispensed with upon proof that it has been muti- lated or destroyed by the defendant, and other evidence of its contents may be omitted.®'* Tomlinson v. People, 5 Park. Cr. (N. 297, 32 N. E. 885, so holding in the Y.) 313. case of an indictment charging a con- In. some States statutes dispense spiracy to defraud an insurance com- with the necessity of setting out a pany by falsely pretending that the copy. Roberts v. State, 72 Miss. 110, person insured was dead. In this case 16 So. 233; State v. Wright, 9 Wash. it was held unnecessary to set out 96, 37 Pac. 313. the insurance policy. 81. United States v. Watson, 17 oo tt -i. j oj. i. -n- ,, .« , ,__ ,^„ „ TT T ^3. United States v. Howell, 40 Fed. 110; People v. Kingsley, 2 Cow. (N. Y.) 522, 14 Am. Dec. 520. Fed. 145, 149. Per Hiix, J. The legal effect of an ins"trument may be stated without using the words found upon the face of the in- 84. People v. Kingsley, 2 Cow. (N. strument. United States v. Keen, 26 Y.) 522, 14 Am. Dec. 520. See State Fed. Cas. No. 15,510, 1 McLean, 429: v. Potts, 9 N. J. L. 26. United States v. Peacock, 1 Cranch 85. State v. Potts, 9 N. J. L. 26. C. C. 215. See United States v. Howell, 64 Fed. 82. Musgrave v. State, 133 Ind. 110. 377 §§ 341, 342 Chaeging the Offense — Paktiodlab Avebmemts. § 341. Same subject — AtUching instrument to indictment. — In some cases instead of setting out an instrumeait in the body of the indictment it may be permissible to attach it to the indictment as an exhibit, reference thereto being made in the body of the indictment. Such a practice, however, is not regarded with favor in the courts and has been declared to be loose and objectionable and not to be encouraged.*® And in a case in which the question of the sufficiency of an indictment under such circumstances arose, the court said : " This practice of attaching a copy of an instru- ment as an eixhibit, instead of incorporating it into the body of the indictment, is certainly novel in criminal pleading. It is a very loose and dangerous practice, and certainly ought not to be encouraged. It is, of course, quite common in civil pleadings, but when we consider the liability of an exhibit to become detached, and the difficulty of properly and conclusively identifying it, such a practice ought not to obtain in criminal pleading. If an indict- ment in this form is presented to the court, we think it would be eminently proper for him on his own motion to refuse to receive it, and to return it to the grand jury with instructions to have it drawn in better form ; and we are not now prepared to say that, if the objection were raised by a defendant upon arraignment, by motion to set aside the indictment, the court would not be justified in granting the motion and resubmitting the case to the grand jury. But, as against a demurrer, we can see no principle of law upon which we can hold that an exhibit attached to an indictment, and referred to in it as attached thereto, and marked and expressly made a. part thereof, should not be considered a part of the indict- ment, the same as' if incorporated in the body of the pleading."*^ § 342. Same subject — Where word in instrument uncertain or illegible — ^Where in setting forth an instrument any uncertainty arises in a name or a word, which is material, it is essential that such uncertainty should be rendered certain by suitable aver- 86. State v. Williams, 32 Minn. was attached a copy of the mortgage. .537, 21 N. W. 746, so holding where 87. State v. Williams, 32 Minn, to an indictment for the fraudulent 537, 21 N. W. 746. Per Mit- sale of mortgaged personal property ohell, J. 378 Ohakging the Offense — Paeticuxab Aveements. §§ 343, 344 ments.^* So whei'e an indictmeat attempts to set out obscene matter, the fact that it omits some parts ■will not vitiate the indict- ment where it is alleged that the omission is due to the faxjt that sueh parts are illegible.** § 343. Same subject — Effect of mistake. — ^A mistake in set- ting forth an instrument will not vitiate the indictment where the variance between the instrument as set forth and that offered in evidence is not a material one. So where an indictment purported to set forth a copy of a deed and the deed offered in evidence on the trial diowed that in the copy in the indictment the easterly and westerly boundary lines were omitted, but the copy showed infer- entially the length of these lines, it was held that the variance was not material.*" So in this connection it has been said : " The gen- eral rule of criminal pleading, when the tenor of a writing is required to be set forth, as in forgery and in libel, is, that the indictment should contain an exact copy. From the older cases it appears that this requirement was originally enforced with great strictnros. But in the more modem practice this severity has been, in several instances, somewhat moderated, so that now we find the law stated in the text books, as extracted from the reports, to the effect that the variance of a letter between the instrument pro- duced and the tenor of the record will not be fatal, provided the meaning be not altered by changing a word into another of a dif- ferent signification."*^ § 344. Same subject — What may be omitted. — In an indict- ment for forgery alleging an instrument to be in the words and 88. United States v. Keen, 26 Fed. Ala. 36, 6 So. 271, as to when parts Cas. No. 15,510, 1 McLean, 429. of an instrument are illegible. The meaning' of mis-spelled 90. Webster v. People, 92 N. Y. words in an instrument alleged to 422, holding also that the omission to be a forgery may be properly set forth allege in the indictment that the deed by inuendo averments in the indict- was under seal was not a material de- ment. Colter V. State, 40 Tex. Cr. 165, feet. 49 S. W. 379. 91. State v. Jay, 34 N. J. L. 368. 89. Thomas v. State, 103 Ind. 419, Per Beasmst, J. 2 N. E. 808. See Fomby v. State, 87 379 § 345 Chaeging the Offense — Particular Aveements. figures following, it has been decided tihat a strict recital is neoee- sary, but that the number of a bill, and the figures in its margin making its amount, are not parts of the bill and need not be set out in the indictment.®^ So in an indictment for forging and uttering a check it is not necessary to set forth indorsements appearing upom the check or a revenue stamp attached thereto. Neither forms part of the check, which is a complete instrumemt of itself, and such omission therefore does not constitute a variance.®* § 345. Same subject — Obscene publications. — In those cases vsrhere a publication is of such an obscene character as to render it improper that it should appear on the record, the statement of the contents may be omitted altogether and a description thereof sub- stituted, in which case it is essential that a reason for the omission 92. Commonwealth v. Bailey, 1 Mass. 62. See also Langdale v. Peo- ple, 100 111. 263, citing Common- wealth V. Stevens, 1 Mass. 203; Grif- fin V. State, 14 Ohio, 54. See People V. Kingsley, 2 Cow. (N. Y.) 522, 14 Am. Dec. 520, holding that dates, sums and times of payment may be omitted. White V. Territory, 1 Wash. 279, 24 Pac. 447. 'Wbere an indictment set ont a part of the vignette or orna- ments of a forged bank note and it was objected to on the ground that if the State undertook to set out a part it was bound, as in other cases, to set out the whole, the court de- clared that it was a. sufficient answer to this objection that setting out the whole, or any part of the ornament, whether consisting of letters, words, figures, mottoes, inscriptions or em- blems of animate or inanimate things is mere surplusage. State v. Robin- son, 16 N. J. L. 507, 510. Per Fobd, J. In am indictment for forging a bill of exchange or bank bill it is not necessary to insert the marks, let- ters or figures used in the margin of the bill, for ornament or the more easy detection of forgeries, as such marks or ciphers form no part of the bill. People v. Franklin, 3 Johns. Cas. (N. Y.) 299, wherein it was said: " It might as well be required that the water marks and a fac simile of all the engraved ornaments used in a bank bill, for the more easy detection of forgeries, should be inserted in an indictment." An indictment for connter- feiting need not set out an indorse- ment upon the counterfeited paper. Hess V. State, 5 Ohio, 5, 22 Am. Dec. 767. 93. Miller v. People, 52 N. Y. 304, citing Hess v. State, 5 Ohio, 9; Com- monwealth V. Ward, 2 Mass. 397; People V. Franklin, 3 Johns. Cas. (N. Y.) 299. 380 Chakging the Offense — Paeticulae Aveements. § 345 appear in the mdictment by proper averments,®* and that there be such a description therein of the publication as to inform the accused what publication is referred to.®^ So it is said that it is now the general American doctrine that the obscene book or paper need not be set out in an indictment, if it be properly described and the indictment contains the averments, that it is so obscene that it would be offensive to the court, and improper to be placed on the records thereof and that therefore the grand jury did not set it forth in the indictment.®® So in an early case in Michigan it is 94. United States. — ^Rosen v. United States, 161 U. S. 29, 16 Sup. a. 434, 40 L. Ed. 606. Massachusetts. — Commonwealth v. Tarbox, 1 Cush. (Mass.) 66; Com- monwealth V. Holmes, 17 Mass. 336. Missouri. — State v. Van Wye, 136 Mo. 227, 37 S. W. 938, 58 Am. St. Rep. 627. Rhode Island. — State y. Smith, 17 R. I. 371, 22 Atl. 282. Vermont. — State v. Brown, 27 Vt. 619. In the English courts the American doctrine is not ac- cepted. — So in a case in which this reason was pointed out it was said: " Another reason is given why an ob- scene libel should not be set out ver- batim in the indictment. The records of the court, it is said, should be kept pure and undefiled. This seems to me a wholly fanciful and imaginary desideratum. And if such an objec- tion is good in the case of an obscene libel, why is it not equally good, or even better, in that of a blasphemous libel, or an indictment for the use of seditious language? And why is it not also an objection in the case of a libel defamatory of private character? There, if anywhere, it seems to me, it should prevail. What can be more in- convenient and grievous, for instance. than the perpetration and publication, by means of the record of the court, of a libel charging a man with the commission of an infamous crime? Therefore the objection is a fanciful one." Reg v. Bradlaugh, 38 L. T. Rep. N. S. 118, 121. Per Bramweli,, L. J. See also Rex v. Carll, 2 Strange, 789; Rex v. Sparling, 1 Strange, 498. Does not violate constitn- tional rights. — The constitutional provision securing to an accused per- son the right to be informed of the nature and cause of the accusation against him is not violated by an omission to set out obscene matter in an indictment, it being alleged that' it is not proper to be spread upon the records of the court, where it is suf- ficiently described. Rosen v. United States, 161 U. S. 29, 16 Sup. Ct. 434, 40 L. Ed. 606. See § 286 herein. 95. United States v. Clark, 40 Fed. 325; Commonwealth v. McConce, 164 Mass. 162, 41 N. E. 133, 29 L. R. A. 61. I 96. Thomas v. State, 103 Ind. 419, 2 N. E. 808. Per Zollabs, J., citing Commonwealth v. Holmes, 17 Mass. 336; Commonwealth v. Sharpless, 2 S. & R. (Pa.) 91; State v. Brown, 27 '^Vt. 619; United States v. Bennett, 16 : Blatchf. 338; McNair v. People, 89 =5 111. 441. 381 § 346 Chabging the Offense — Paeticulae Avsements. said that there is an ancient rule " which forbids the introduction in an indictment of obscene pictures and books. Courts will never allow its records to be polluted by bawdy and obscene matters. To do this would be to require a court of justice to perpetuate and give notoriety to an indecent publication, before its author could be visited for the great wrong he may have done to the public oi' to individuals- And there is no hardship in this rule."®'^ But though in indictments for publishing an obscene paper it is not always necessary that the contents of the publication should be inserted, yet whenever it is necessary to do so or whenever the indictment undertakes to state the contents it is said that the same rule pre- vails as in the case of libel, and the alleged obscene publication must be set out in the very words of which it is composed and the indictment must undertake or profess to do so by the use of appro- priate language.®* In this connection it has been declared by the United States Supreme Court that whether a matter is too obscene to be set forth in the record is a matter primarily to be considered by the district attorney in preparing the indictment; and, in any event, it is within the discretion of the court tx> say whether it is fit to be spread upon the records or not.®* § 346. Same subject — Obscene publications — Qualification of rule as to description — New York case In a case in New York the exception is further extended, it being held that where the matter is too obscene to be set out it is sufficient to use such descriptive allegations as will identify the book or publication in- tended and to also allege that the grand jury deem the matter too obscene and foul to be spread upon the records.^ The court said: " By the American doctrine and practice on this head . . . the avoiding of obscene allegation in the record, breeding corruption, is a necessity, excusing the setting out of the words. It is claimed, however, that the obscene matter should have been described, at least in general t/erms. The answer to this is, that if the matter is 97. People v. Girardin, 1 Mich. 90. 99. Dunlop v. United States, 165 Per WmpptE, .J. IT. S. 486, 497, 17 Sup. Ct. 375. 98. Commonwealth v. Tarbox, X 1. People v. Kaufman, 14 App. Uiv. Cush. (Moss.) 66. (N. Y.) 305. 382 Chaeging the Offense — Pakticdlae Aveements. § 346 too obscene to be set out, it is also too obscene to be properly described. An accurate description of obscene matter, however general, would itself be obsoena Nothing would be gained by condensation. How, indeed, can obscenity be condensed so as to be descriptive and yet sufficiently decent to be placed upon the record ? We refer now to such a description as would enable the court, upon the face of the indictmeat, to determine whether the book or publication is in fact obscene. Any merely general de- scription would not be a description at all — that is, of the obscene words, or matter. A mere description, for instance, of the subject matter — of what, in general, the book is about, — would not be a description of the actual obscenity charged- It would not apprise the defendant of the particular facts upon which the charge is based. It would simply be a means of identifying the book or publication ; and that is as weU, if not better, effected by stating its title. In none of the cases which have been referred to, with the possible exception of Commonwealth v. Sharpless^^ did the in- dictment contain a description, either minute or general, of the mature of the obscenity, and in none of them was a descriptive averment of the obscene matter required. The rule to which we have referred is not in conflict -with that laid dov?n in People v. Hallenheck^ and People v. Danihy.* In neither of these cases was the omission of the obscene matter excused by the statement, in the indictment itself, that it was too gross to be placed upon the record. We agree that, where this excuse is not made by the grand jury upon the face of the indictment, the obscene matter must be set out. ^Vhere, however, that excuse is thus made, we .think the general rule should be modified in the interest of ^public decency ; and the defendant must then be satisfied with such descriptive allegations as clearly identify the book or publication intended, together with the statement that the obscene matter which the grand jury deem too foul to be spread upon the record is contained therein. If anything more is requisite for the protection of the defendant's rights it may well be left to the discretion of the court to compel the public prosecutor to furnish such further informa- tion or specification as may be needful."^ 2. 2 S. & R. (Pa.) 91. 4. 63 Hun (N. Y.), 579. 3. 52 How. Pr. (N. Y.) 502. 5. Per Babrett, J. 383 §§ 347, 348 Charging the Offense — Paetictjlae Averments. § 347. Same subject — Obscene publications — Effect of statutes. — Though it is provided by statute that an indictment or acousation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of the statute creating the offense, or so plainly that the nature of the offense may be easily understood by the jury, it is nevertheless necessary to set out the supposed obscene matter in the indictment, unless the obscene publication is in the hands of the defendant or out of the pO'Wer of the prosecution, or the matter is too gross and obscenie to be spread on the records of the court, either of which facts, if existing, should be averred in the indictment, as an excuse for failing to set out the obscene matter.^ § 348. Averments describing personal property — Money. — In those cases where the offense is one affecting the personal pi'op- erty of an individual, as where larceny, embezzlement or the obtaining of property under false pretenses is alleged, a descrip- tion of the property becomes essential in order that the accused may be informed of the nature and cause of the accusation against him.'' So property stolen musit be described with such certainty as will enable the jury to say whether the chattel proved to have 6. MoNair v. People, 89 111. 441. VTashiiLgton. — State v. Brook- Per WAtKEB, J. See also Reyes v. house, 10 Wash. 87, 38 Pac. 862. State, 34 Fla. 181, 15 So. 875. Mode of taking advantage o£ 7. Florida. — Grant v. State, 35 defective description. — A fatal de- Fla. 581, 17 So. 225. feet in the description of property Georgia. — Brown v. State, 86 Ga. may be taken advantage of by a de- 633, 13 S. E. 20. murrer (Roberts v. State, 83 Ga. 369, Illinois. — See West v. People, 137 9 S. E. 675), or motion in arrest of 111. 189, 27 N. E. 34, 34 N. E. 254. judgment (Grant v. State, 35 Fla. Indiana.— Whitney v. State, 10 581, 17 So. 225; State v. Hoyer, 40 Ind. 404. La. Ann. 744, 4 So. 899). Itonisiana. — State v. Hoyer, 40 Sufficiency of description of La. Ann. 744, 4 So. 899. property in particular cases see: Nebraska. — Barnes v. State, 40 Alabama. — Peters v. State, 100 Neb. 545, 59 N. W. 125. Ala. 10, 14 So. 896 (larceny of two Pennsylvania. — Commonwealth bales of cotton; description suffi- V. Seball (Pa. C. P.), 9 Lane. L. Rev. cient). 332. California.— People v. Nesbitt, 884 Chaegino the Offense — Paeticulab Aveements. § 348 been stolen is the same with that upon which the indictment is founded, and as will judicially show to the court that it could 102 Cal. 327, 36 Pac. 654 (obtaining property under false pretenses; de- scription sufficient). Georgia. — ^Nightengale v. State, 94 Ga. 395, 21 S. E. 221 (theft of cow; description sufficient) ; Sanders v. State, 86 Ga. 717, 12 S. E. 1058 (lar- ceny of cattle; description sufficient). Iowa.— State v. Smith, 88 Iowa, 1, 55 N. W. 16 (larceny of pants; de- scription sufficient). Kansas. — State v. Hoffman, 53 Kan. 700, 37 Pac. 138 (larceny of four steers; description sufficient). Irfkuiaiaiia. — State v. Labauve, 46 La. Ann. 548, 15 So. 172 (theft of eight cords of wood; description suf- ficient) ; State V. Baden, 42 La. Ann. 295, 7 So. 582 (larceny of one beef; description sufficient). Haryland. — Foster v. State, 71 Md. 553, 18 Atl. 972 (larceny of bank note; description sufficient) ; State v. Dowell, 3 Gill. & J. 310 (larceny of one hide; description sufficient). Michigan. — ^People v. Price, 74 Mich. 37, 41 N. W. 853 (stealing a yoke of oxen; amendment of descrip- tion permitted). Miiuiesota. — State v. Friend, 47 Minn. 449, 50 N. W. 692 (larceny of horse; description sufficient). Missouri. — ^Missouri v. Logan, 1 Mo. 532 (stealing a book; description sufficient). New Jersey. — ^Hagerman v. State, 51 N. J. L. 104, 23 Atl. 357 (obtain- ing goods by false pretenses; de- scription sufficient). North CaroIiiLa. — State t. Bishop, 98 N. C. 773, 4 S. E. 357 (theft of United States pension agent's check; description sufficient) ; State t. Wil- kerson, 98 N. C. 696, 3 S. E. 683 (ob- taining money under false pretenses; description sufficient). Obio. — Whiting v. State, 48 Ohio St. 220, 27 N. E. 96 (larceny with count for receiving stolen property). Tennessee. — State v. Shelton, 90 Tenn. 539, 18 S. W. 253 (breaking and entering a building with intent to steal and carry away goods; not necessary to separately describe ar- ticles intended to be stolen) ; State v. Pearce, Peck. 86 (maliciously killing beast; description sufficient). Texas ^Walton v. State, 41 Tex. Cr. 454, 55 S. W. 566 (theft of cat- tle; description sufficient) ; Lewis v. State, 28 Tex. App. 140, 12 S. W. 736 (misapplication of county funds; de- scription sufficient). Wben. description not re- qnired. — In indictments for attempts to commit larceny it is said that the same particularity of description of property is not required as in in- dictments for larceny, and in such a case it has been held sufficient to de- scribe the property as " money, per- sonal goods and chattels." (Clark v. State, 86 Tenn. 511, 8 S. W. 145.) So it is decided that the property in- tended to be stolen need not be de- scribed in an indictment for assault with intent to rob (Grumes v. State, 28 Tex. App. 516, 13 S. W. 868), or in an indictment for burglary with intent to steal. (Lanier v. State, 76 Ga. 304; State v. Jennings, 79 Iowa, 513, 44 N. W. 799. See Reinhold v. State, 130 Ind. 467, 30 N. E. 306.) 385 25 § 348 Chaeging the Offense — Paeticulae Aveements. have been the subject matter of the offense charged.^ Great par- ticularity in describing articles alleged to have been stolen is not required, but they should be described with reasonable certainty, that is, -whait is commonly called certainty to a common intent, which is to be construed as meaning such certainty as will enable the court and jury to determine whether the evidence offered in support of the charge relates to the same property on which the indictment was founded, and thus prevent one from being tried for an offense other than that for which the grand jury indicted him, anid to enable the defendants to plead the judgment in bar of another prosecution for the same offense.® So a description of a watch as " one gold watch " has been held sufficient where it is such a watch as is commonly called a gold watch by the public, though it is not considered a gold watch among jewelers.^** But it is not sufficient to charge a person with having stolen " the goods and chattels " of another with no further description,, as such an averment does not comply with the well-settled rule of the common law as to certainty.^ ^ As to statutory offenses the rule as declared by the United States Supreme Court is that if the description brings the property, in respect to which the offense is charged, clearly within the scope of the statute creating the offense, and at the same time so identifies it as to enable the defendant to fully prepare his defense, it is sufficient.^* These general principles as to description of property also apply generally in the case of indictments for the larceny of money.** In 8. People V. Jackson, 8 Barb. (N. description applicable to them as Y.) 637. chattels. People v. Jackson, 8 Barb. 9. State V. Dawes, 75 Me. 51. See (N. Y.) 637. People V. Piatt, 67 Cal. 21, 7 Pae. 1. It is not necessary to state the 10. Pfister V. State, 84 Ala. 432, 4 nnmber and denomination. — So. 395. United States v. Bornemann, 36 Fed. 11. Merwin V. People, 26 Mich. 298. 257; Reed v. State, 88 Ala. 36, 6 So. 12. Dunbar y. United States, 156 840; Malcolmson v. State, 25 Tex. U. S. 185, 15 Sup. Ct. 325. App. 267, 8 S. W. 468. Compare Barg- 13. Averments as to money. — gett v. State, 69 Miss. 625, 13 So. 816. In an indictment for stealing bank An indictment for the larceny notes it is sufficient to describe them of bank bills, describing them aa in the same manner as other things " sundry bank bills, of some banks which have an intrinsic value, by any respectively to the said jurors un- 386 Chaeging the Offense — Paeticulae Aveements. § 348 case of an indictment charging a larceny of various dis- tinct articles of property, some of which are technically described, and others not so, where a general verdict of guilty is found by the jury, it is said to be well settled that the insufficiency of the deecxiption as to certaini articles has no other effect than to strike them out of the indictment, and the verdict is to be applied to the whole property which is properly and sufficiently charged to have been stolen, and for the larceny known, of the amount and value in all of thirty-eight dollars, of the property, goods and chattels " of a person named, held sufficient. Com- monwealth V. Grimes, 10 Gray (Mass), 470, 71 Am. Dee. 666. In larceny of silTer coins the general form of charging the offense as a larceny of " sundry pieces of sil- ver coin, amounting together to the sum of," followed by the amount, without describing each piece of coin, is sufficient. Commonwealth v. Grimes, 10 Gray (Mass.), 470, 71 Am. Dec. 666. By statnte it may be nnneces- sary to specify any particular coin, it being sufficient to charge the larceny, embezzlement or fraudulent disposition of a sum of money, lawful currency of the United States. Travis V. Commonwealth, 16 Ky. Law Rep. 253, 27 S. W. 863; Commonwealth v. Mann, 12 Ky. Law Rep. 477, 14 S. W. 685, decided under Ky. Crim. Code, § 135; State v. Barr, 61 N. J. L. 131, 32 Atl. 817, decided under Cr. Proc. Act, § 67; State v. Feazell, 132 Mo. 176, 33 S. W. 788, decided under Rev. St. 1889, § 4111. An averment that the money is " lairf nl money " is held un- necessary. Rains v. State, 137 Ind. 83, 36 N. E. 532. The averment that money embezzled was " lawful money of the United States " may be un- necessary under a statute. State v. Noland, 111 Mo. 473, 19 S. W. 715, decided under Mo. Rev. Stat. 1889, § 4111. Sufficient averments as to money in particular cases see: United States. — United States v. Greve, 65 Fed. 488; United States v. Bornemann, 36 Fed. 257. Alabama. — Owens v. State, 104 Ala. 18, 16 So. 575; Garden v. State (Ala.), 7 So. 801. Florida.— Porter v. State, 26 Fla. 56, 7 So. 145. Indiana. — ^Hammond v. State, 121 Ind. 512, 23 N. E. 515. New Mexico. — ^United States v. Fuller, 5 N. M. 80, 20 Pac. 175. Tesas. — Green v. State, 28 Tex. App. 493, 13 S. W. 784; Spencer v. State (Tex. Cr.), 65 S. W. 58; Kelley V. State, 34 Tex. Cr. 412, 31 S. W. 174; Lewis v. State, 28 Tex. App. 140, 12 S. W. 736. An indictment for the embez- zlement of " funds and credits " under U. S. Rev. St., § 5209, U. S. Comp. St. 1901, p. 3497, but which sets forth no particular description of either, and contains no separate state- ment as to the amount of the " funds " or of the "credits" which had been 387 § 349 Charging the Offense — Paeticux-ar Aveements. of sucii property the punishment is to be awarded." In some States the amendment of indictments is permitted by statute in respect to the description or ownership of property where the court is of the opinion that the variance is not material and will not prejudice the defendant in his defense-^® Under such a statute it has been held proper to amend an indictmenit for larceny by changing the description of the property from cotton " in the lint " to cotton " in the seed,"^* and to amend an information changing the robbery of a silver watch by changing the word " silver " to " gold."" § 349. Same subject — Should aver excuse for failure to give — Unknown to grand jury. — If it is not possible to give the description required of the property then the indictment should, by a proper averment, state the reason why this cannot be done.'* Ordinarily such a failure is excused by an averment, after a gen- eral description, that a further or more particular description of the property is to the grand jurors unknown.*' So an indictment has been held suffioient which described the property as lawful money of the United States of America of a value specified, a embezzled or misapplied is insuffi- 17. Meehan v. State, 119 Wis. 621, cient. United States v. Smith, 152 97 N. W. 173. Fed. 542. 18. Burney v. State, 87 Ala, 80, 14. Commonwealth v. Williams, 2 6 So. 391; State v. Dawes, 75 Me. 51; Cush. (Mass.) 582, 588. Per State v. Segermond, 40 Kan. 107, 19 Dewet, J. Pac. 370; Baggett v. State, 69 Miss. 15. State V. Jacobs, 50 La. Ann. 625, 13 So. 816. See Commonwealth 448, 23 So. 608, construing La. Rev. v. Sawtelle, 11 Cush. (Mass.) 142; St., § 1047; State v. Perkins, 49 La. Commonwealth v. Strangford, 112 Ann. 310, 21 So. 839; People v. Price, Mass. 289. 74 Mich. 37, 41 N. W. 853, constru- 19. Porter v. State, 26 Fla. 56, 7 ing How. Stat., § 9537; People v. Ha- So. 145; Fleener v. State, 58 Ark. 98, gan, 14 N. Y. Supp. 233, decided 23 S. W. 1; Campbell v. State under N. Y. Code Crim. Proc, § 293; (Miss.), 17 So. 441. Meehan v. State, 119 Wis. 621, 97 N. In describmg money a general W. 173, construing Wis. Stats. 1898, description may be sufficient where a §§ 4703, 4706. more particular description is so ex- 16. State V. Jacobs, 50 La. Ann. cused. Carr v. State, 104 Ala. 4, 16 447, 23 So. 608. So. 150. 388 Chaeging the Offense — Paeticulae Aveements. § 350 more particular description of which was unknown, the court hold- ing that it was not necessary to allege whether it was gold, silver or paper money of the United States, or whether it was current money.** § 350. Same subject — Averments as to value — Although it is said that it is generally unsafe to omit the statement of value unless some statute clearly dispenses with it, except, perhaps, in the case of the larceny of money which is speeifioally described as being of some of the particular kinds of which the value is expressly prescribed by act of Congress f^ yet it is a general rule that a positive averment of value is only necessary in those cases where value is an ingredient of the offense.** Thus, where by statute a distinction is made in the punishment and grade of the 20. Maleolmson v. State, 25 Tex. App. 267, 8 S. W. 468. Compare State V. Denton, 74 Md. 517, 22 Atl. 305. 21. Merwin v. People, 26 Mich. 298. Judicial notice ivill be taken of the valne of money which is al- leged to be " currency of the United States of America" (Gady v. State, 83 Ala. 51, 3 So. 420. See Morris v. State [Tex. Cr.], 20 S. W. 979). So where an indictment charged the taking of " one hundred and seventy dollars in paper currency of the United States of America commonly called ' greenbacks,' " it was held suf- ficient, without a specific allegation of value (Turner v. State, 124 Ala. 59, 27 So. 272). And "lawful money of the United States " of a stated amount has been held sufficient (Peo- ple V. Riley, 75 Cal. 98). And a de- scription of the property as " five dol- lars in money" has been held suffi- cient (Hammond v. State, 121 Ind. 512, 23 N. E. 515, decided under Ind. Rev. St., § 1750. See State v. Brown, 113 N. C. 645, 18 S. E. 51. But see State V. Segermond, 40 Kan. 107, 19 Pac. 370). The descriptive urords in an indictment " United States pa- per currency money " includes treasury notes, gold and silver cer- tificates. Rucker v. State (Tex. Cr.), 26 S. W. 65. 22. California, — People v. Rice, 73 Cal. 220, 14 Pac. 851. Iionisiana. — State v. Hill, 46 La. Ann. 736, 15 So. 145. Maine. — State v. Perley, 86 Me. 427, 30 Atl. 74, 41 Am. St. Rep. 564. Missouri. — State v. Sharp, 106 Mo. 106, 17 S. W. 225. Nebraska. — Wilson v. State, 43 Neb. 745, 62 N. W. 209. New York. — People v. Jeffery, 82 Hun, 409, 31 N. Y. Supp. 267; People V. Higbie, 66 Barb. 131. North Carolina. — State v. Brown, 113 N. C. 645, 18 S. E. 51. Texas.— Williams v. State, 34 Tex. Cr. 523, 31 S. W. 405; Hamilton v. State (Tex. Cr.), 24 S. W. 32. 389 § 351 Chakging the Offense — Paeticulae Aveements. crime dependent upon the value of the property, it is necessary that there should be a statement of value in the indictment, as value is of the essence of the offense.^^ § 351. Same subject — Averments as to ownership. — There are some offenses, such as larceny or embezzlement, where the criminal act is directed against the personal property of another, and in charging which, it is essential to the sufficiency of an indict- ment, that, ini describing the property affected, there shoxild be an averment of ownership, custody or possession.^* So to constitute a good indictment for larceny the thing stolen must be charged to Za. Grant v. State, 35 Fla. 581, 17 So. 225; Merwin v. People, 26 Mich. 298. Value of several articles stolen at one time may be stated in a lump sum. People v. Kobles, 34 Cal. 591 ; State V. Brew, 4 Wash. 95, 29 Pac. 762. 24. United States. — United States V. Watkins, 3 Cranch C. C. 441, 458. Alabama. — Bowen v. State, 106 Ala. 178, 17 So. 335. ArkaiLsas. — McCowan v. State, 58 Ark. 17, 22 S. W. 955; Boles v. State, 58 Ark. 35, 22 S. W. 887. California. — People v. Hansel- man, 76 Cal. 460, 18 Pae. 425; People V. Hall, 19 Cal. 425. Colorado. — Miller v. People, 13 Colo. 166, 21 Pae. 1025. Florida. — Grant v. State, 35 Fla. 581, 17 So. 225. Georgia. — Cooper v. State, 89 Ga. 222, 15 S. E. 291. Maryland. — State v. Blizzard, 70 Md. 385, 17 Atl. 270. Missonri.— State v. Ellis, 119 Mo. 437, 24 S. W. 1017. New York. — People v. Bennett, 37 N. y. 117, 93 Am. Dec. 551; People V. Romaine, 1 Wheeler's Cr. Cas. 369 ; People V. Smith, 1 Park. Cr. R. 329. Nortb Dakota. — State v. Collins, 4 N. D. 433, 61 N. W. 467. Oregon. — State v. Sterritt, 19 Oreg. 352, 24 Pae. 523. PennsylTania. — Commonwealth V. Hoggel, 7 Kulp. 10. Texas. — Higgins v. State (Tex. App.), 19 S. W. 503; Otero v. State, 30 Tex. App. 450, 17 S. W. 1081; Mays V. State, 28 Tex. App. 484, 13 S. W. 787; Kimbrough v. Stete, 28 Tex. App. 367, 13 S. W. 218; Lang- ham V. State, 26 Tex. App. 533, 10 S. W. 113; Crane v. State, 26 Tex. App. 482, 9 S. W. 773. Tbe nsnal form in stating the ownership of personal chattels is that they are " the goods and chat- tels of A B," or sometimes " the prop- erty of A B." Commonwealth v. Wil- liams, 2 Cush. (Mass.) 582, 587. An allegation by recital is suf- ficient. People V. Piggott, 126 Cal. 509, 59 Pac. 31. Charging ownership in one to the grand jurors unknown may excuse failure to state owner and be sufficient, though it is not stated that the unknown person is not the ac- 390 Chaeging the Offense — Paeticiilae Aveements. § 351 be the property of the actual owner, or of a person having a special property as bailee, and from whose possesision it was stolen.^'' In the application of this rule it has been held sufficient under the facts of particular cases to lay the ownership of property in the one having the lawful possession;** in a bailee;*^ in a conditional pur- chaser;*® in a married woman;** husband;^'' purchaser in good cused. Reed v. State, 32 Tex. Cr. 139, 22 S. W. 403. A statement of the name is suf- ficient where the Christian name is not given in full, only an initial being used (State v. Sweeney, 56 Mo. App. 409 ) . And an indictment is held sufficient where neither the Christian name or an initial is given (Farmer v. State [Tex. Cr.], 28 S. W. 197). And the surname of the owner has been held sufficiently stated where the surname of the father is alleged (Young v. State, 30 Tex. App. 308, 17 S. W. 413). A misnomer is not material where name of owner is not necessary (United States v. Howard, 3 Sumn. 12), or where it is so provided by statute (Hennessey v. Commonwealth, 10 Ky. Law Rep. 823, 11 S. W. 13, de- cided under Ky. Crim. Code, § 128). wnere the otmer is a corpora- tion the indictment should allege such fact (Thurmond v. State, 30 Tex. App. 539, 17 S. W. 1096), but need not allege its capacity to own the property (Territory v. Garcia [N. M. 1904], 75 Pae. 34). It is sufficient to allege the property as that of " an incorporated company, to wit," fol- lowed by the name of the corporation (Stallings v. State, 29 Tex. App. 230, 15 S. W. 716). See, as to stating name of corporation, sections 361-363 herein. In an indictment for break- ing and entering a honse with intent to commit larceny the name of the owner of the property which the defendant intended to steal neett not be given. People v. Shaber, 32 Cal. 36. An amendment as to the name of the owner is allowable where authorized by statute. State v. Casa- vant, 64 Vt. 405, 23 Atl. 636. 25. People v. Bennett, 37 N. Y. 117, 93 Am. Dee. 551. Per FniiEETON, J. Where several different arti- cles belonging to different persons severally are together, and all of them are stolen in one act at the same time, the particular ownership of the several articles should be averred in an indictment therefor. State v. Con- grove, 109 Iowa, 66, 80 N. W. 227. 26. State v. Addington, 1 Bailey (S. C), 310. See State v. Bishop, 98 N. C. 773, 4 S. E. 357. 27. Alabama. — Fowler v. State, 100 Ala. 96, 14 So. 860. Florida. — ^Kennedy v. State, 31 Fla. 428, 12 So. 858. Georgia. — Wimbish v. State, 89 Ga. 294, 15 S. E. 325. TXexr Torh. — ^People v. SmiUi, 1 Park. Cr. R. 329. ITorth Carolina. — State v. Pow- ell, 103 N. C. 424, 9 S. E. 627, 4 L. R. A. 291. 28. Fowler v. State, 100 Ala. 96, 14 So. 860. 29. Johnson v. State, 100 Ala. 55, 391 § 352 Chae«ing the Offense — Paeticuj^ae Aveements. faith and for value, though, the party from whom the purchase was made had. no title ;*^ in the estate of one and partners;*^ in a per- son named, though property owned by him and others jointly;^* in a sheriff in possession under attaehment proceedings;** in one in the actual care, control and managemenit;^^ in a minor;** and, where the property was whiskey stored in a government warehouse, in one who had the right to take it away upon payment of the tax.^^ § 352. Averments describing real property. — Whenever in charging an offense, it is necessary to describe a house or land, the premises must be set out in terms sufficiently certain to identify them.*^ So it is said that " in an indietmenit for forcible entry and detainer, to allege that the defendant entered two closes of meadow or pasture, a house, a rood of land, or certain lands belong- ing to a house is bad ; for the same certainty is required as in a declaration in ejectment.** So it is decided that the offense of 14 So. 627; La Pointe v. United States, 23 Wash. L. Rep. 482; Ken- nedy V. State, 31 Fla. 428, 12 So. 858. 30. Kennedy v. State, 31 Fla. 428, 12 So. 858; People v. McCarty, 5 Utah, 280, 17 Pac. 734. ,31. Gooch V. State, 60 Ark. 5, 28 S. W. 510. 32. People v. Ribolski, 89 Cal. 492, 26 Pac. 1082. i33. Mullins v. Commonwealth, 11 Ky. Law Rep. 345, 12 8. W. 137. 34. Lenhart v. State, 33 Tex. Cr. 504, 27 S. W. 260. 35. Alford v. State, 31 Tex. Cr. 299, 20 S. W. 553 ; Arcia v. State, 28 Tex. App. 198, 12 S. W. 599. 36. Phillips V. State, 85 Tenn. 551, 3 S. W. 434, so holding where the property was clothing owned and worn by her. 37. State v. Harmon, 104 N. C. 792, 10 S. E. 474. 38. Commonwealth v. Brown, 15 Gray (Mass.), 189; State v. Mallory, 34 N. J. L. 410. Wbere a house is indicted it should be so described as to leave no reasonable doubt of its locality^ Norris' House v. State, 3 G. Greene (Iowa), 513. An amendment of the descrip- tion of premises may be allowed by statute. State v. Satterwhite, 52 La. Ann. 499, 26 So. 1006. A vanlt for the interment of the dead is not a building within the provisions of the New York Penal Code, §1 498, 504, defining the crime of burglary in the third degree, nor is it an " erection or enclosure " within § 504, specifying what the term " building " as used in the chap- ter in relation to burglary includes, and an indictment for that oflfense is not sustained by proof of the break- ing and entering such a structure. People V. Richards, 108 N. Y. 137, rev'g 44 Hun, 278. 39. Commonwealth v. Brown, 15 Gray (Mass.), 189, 191. Per BlOE- 392 Chaimjing the Offense — Paeticulak Avekments. § 352 arson is local in its nature and requires a local description of the building the subject of arson and that the -words " there situate " are material.*" And an indictment under a statute for fraudu- lently conveying real estate -without giving notice of an incum- brance which does not describe -with sufficient certainty the real estate conveyed, is bad.*^ Again in an indictment for maintain- ing and keeping a common nuisance there is said to be no doubt that the place in which the nuisance is kept and mainrtained must be alleged to be in a particular town, though the place in the town in which it is kept need not be specifically described.** So ani indictment for an attempt to destroy a dam has been held sufficient in this respect where it contained an allegation that the dam was situated in a certain named town, the court declaring that it has often been held that in indictments for keeping and maintaining as a nuisance a particular building, its location need not be specifi- cally described, it being sufficient if it is alleged to be in a certain town named.** And in an indictment for a nuisance affecting the highway it is not necessary to set out the termini of the highway, it being sufiicient to state the town and county in which the nuis- ance was committed, coupled with an averment that the highway is located there.** LOW, J., citing 1 Hawk, chap. 64, § 42. Commonwealth v. Logan, 12 37; 3 Chit. Crim. Law, 1122. Gray (Mass.), 136. See Common- 40. State v. Gaffrey, 3 Finn. wealth v. Gallagher, 1 Allen (Mass.), (Wis.) 360. 592, wherein it is said: " It is never 41. Commonwealth v. Brown, 15 necessary to set out the precise lo- Gray (Mass.), 189. The court said: callty where the offense was com- " The defendant may have owned mitted. If the city or town where other parcels of land in the city of the building or tenement is situated Salem, which he conveyed to the pros- is distinctly set out, no further aver- ecutor on the day alleged. From the ment of place is necessary." Per Biqe- indictment alone therefore it is im- low, J., citing Commonwealth v. possible to say with certainty to Welsh, 1 Allen (Mass.), 1. what parcel of land the charge re- 43. Commonwealth v. Tolman, 149 lates, or to know that the conveyance Mass. 229, 21 N. E. 377, 14 Am. St. proved at the trial was of the same Kep. 414, 3 L. R. A. 747. parcel as that on which the indict- 44. Commonwealth v. Hall 15 ment was founded." Per Bige- Mass. 240. i^^< J- See also as to description of streets 393 § 353 Charging the Offense — Paetioulae Aveements. § 353. Same subject — Averments as to ownership. — In de- scribing real property in an indictment it may be necessary that there should be an averment as to ownership or occupation of such property, an averment of this character being in many cases essential to a proper charging of the offense as identifying the property referred to, in order to inform the accused of the precise offense of which he is charged.*® In this connection it has been decided that there is a sufficient averment where the name of the occupant or tenant of the house or building is given;*" or of the husband, though the legal title is in the wife, where both occupy it as their home.*'^ And in the case of land it may be described or highways, State v. Mathis, 21 Ind. 277; State v. Newfane, 12 Vt. 422; Parkinson v. State, 2 W. Va. 589. See Commonwealth v. Newbury, 2 Pick. (Mass.) 51, wherein it is de- clared that " It seems not to be neces- sary in an indictment for not repair- ing a highway, to set out the termini a quo and ad quern of the way, though it is certainly better to be thus particular, and is more consist- ent with the course of criminal pro- ceedings, which require certainty whenever it is attainable." Per Fabkeb, J. 45. Kenitncky. — Gregory v. Com- monwealth, 2 Dana, 417. Nebraska. — Winslow v. State, 26 Neb. 308, 41 N. W. 1116. North Carolina. — State v. Mor- gan, 1 Wins. No. 1246. Texas. — Woodward v. State, 33 Tex. Cr. 554, 28 S. W. 204; Mulligan V. State, 25 Tex. App. 199, 7 S. W. 664, 8 Am. St. Rep. 664. West Virginia. — State v. Hupp, 31 W. Va. 355, 6 S. E. 919. A variance between the allega- tion of ownership and the proof is fatal. Morris v. State (Miss.), 8 So. 295, so holding in case of a conviction of arson: Williams v. State (Tex. Or. 1906), 90 S. W. 876, so holding in case of an indictment for burglary. In stating tbe oimership of real property «. very general mode in an indictment for burglary is similar to the following, that is, that the defendant broke and entered " the city hall of the city of Charles- ton." Commonwealth v. Williams, 2 Cush. (Mass.) 582, 587. In an indictment for burglary in breaking and entering a rail- road car under the Alabama Code (Ala. Code, § 4344), the ownership of the car broken into and entered is an indispensable averment. Graves v. State, 63 Ala. 134. 46. Kentucky. — Commonwealth v. Elliston, 14 Ky. Law Rep. 216, 20 S. W. 214. Maine. — State v. Whittier, 21 Me. 341. Missouri. — State v. Tyrrell, 98 Mo. 354, 11 S. W. 734. Texas.— Reed v. State, 34 Tex. Cr. 597, 31 S. W. 404. Waskingiton. — State v. Johnson, 4 Wash. 593, 30 Pac. 672. 47. Young V. State, 100 Ala. 126, 14 So. 872. 394 Chaeging the Offense — Paeticulae Avekments. § 354 as belonging to the estate and heirs of a person deceased, his name being given.** If land is worked by one on shares, ownership may be laid in the actual owner, though the former is in possession of some buildings, his possession being limited to the depositing of cix)ps therein.^" Ownership may also be laid in one or more of several partners under a statute so providing.^" And where two corporations had the exclusive possession and control of a railroad, depot owned by a third corporation, it was held sufficient in an indictment for breaking and entering the depot, to describe it as the railroad depot of such two corporations.^^ Again, an indict- ment for breaking aud entering the storehouse of a certain named company with intent to steal the goods and chattels of that com- pany, has been held to sufficiently aver ownership of the premises and of the goods by stating them to be of the company designated, stating its name.^^ It is also said in this connection that the rule that, where there are several occupants of a house, it must be de- scribed, in an indictment for burglary, as the house of the general owner, would seem to be limited to cases where the owner dwells in part of the house. His mere occupancy of a part for another jiui-pose than a. dwelling house will not prevent another part, ex- clusively occupied by a tenant, from being described in an indict- ment for burglary as the dwelling house of the tenant.^^ § 354. Names of third persons — Necessity of stating. — It is a general rule that the name of the one injured, either in his person or property, by the act of the accused, or of one whose identity is 48. State v. Paul, 81 Iowa, 596, 47 holding that where burglary of a N. W. 773. room in a hotel or boarding house is 49. People v. Smith, 3 How. Pr. alleged, ownership may be laid in one (N. Y.) 226. who occupies it under a contract of 50. Van Horn v. State, 5 Wyo. rental. 501, 40 Pac. 964, decided under Wyo. That an indictment fop break- Seas. Laws 1888, chap. 40, § 10. ing into an office charged it to have 51. State V. Scripture, 42 N. H. been in an individual's passession, 485. when the proof showed that it was in 52. Fisher v. State, 40 N. J. L. 169. the possession of such person as the 53. State v. Rand, 33 N. H. 216, president of a corporation, is imma- ■217. Per Perlbt, J. See State v. terial. State v. Porter, 97 Iowa, 450, Johnson, 4 Wash. 593, 30 Pac. 672, 66 N. W. 745. 395 § 354 Chakging the Offense — Paeticulak Aveements. essential to a proper description, of tlie offense, s.hould be stated in am indictment if it is known, or if not known a failure to state it should be excused by an averment that it is not known.'** So 54. United States. — United States V. Wallace, 40 Fed. 144. Alabama. — Cheek v. State, 38 Ala. 227. Colorado. — Sault v. People, 3 Colo. App. 502, 34 Pac. 263. Connecticnt. — State v. Wilson, 30 Conn. 500. Florida. — Groodson v. State, 29 Fla. 511, 10 So. 738. lUinois.— Willis v. People, 2 111. 399. Indiana. — State v. Irvin, 5 Blackf. 343. lotva. — State v. McConkey, 20 Iowa, 574. Massachusetts. — Commonwealth v. Sheedy, 159 Mass. 55, 34 N. E. 84; Commonwealth v. Sherman, 13 Allen, 248; Commonwealth v. Stoddard, 9 Allen, 280. Missouri. — State v. Martin, 108 Mo. 117, 18 S. W. 1005, aflf'g 44 Mo. App. 45. Nebraska. — State v. Hughes, 38 Neb. 366, 66 N. W. 982. New Mexico. — United States v. Hall, 5 N. M. 178, 21 Pac. 85, Nevir york. — People v. Burns, 53 Hun, 274, 6 N. Y. Supp. 611; People V. Fish, Sheld. 537. North Carolina. — State v. Engel, 7 Ired. L. 27. Ohio.— State v. Trisler, 49 Ohio St. 583, 31 N. E. 881; Block v. State, 1 Ohio St. 61. Pennsylvania. — Commonwealth V. Johnson, 3 Pa. Dist. R. 222, 13 Pa. Co. Ct. 543. Texas. — Armstrong v. State, 27 Tex. App. 462, 11 S. W. 462; Alex- ander V. State, 27 Tex. App. 94, 10 S. W. 764; Smith v. State, 28 Tex. App. 577, 10 S. W. 218; Rutherford V. State, 13 Tex. App. 92. England. — Reg. v. Sowerby, (1894), 2 Q. B. 173. An averment that the name is not knoxm is sufficient. — Florida.— Thomas v. State (Fla. 1905), 38 So. 516. Georgia. — Nelms v. State, 84 Ga. 466, 10 S. E. 1087. Iowa. — State v. Ean, 90 Iowa, 534, 58 N. W. 898. Oklahoma. — Morgan v. Territory, 16 Okla. 530, 85 Pac. 718. Pennsylvania. — Commonwealth V. Edwards, 135 Pa. St. 474, 19 Atl. 1064, 26 W. N. C. 242. IVashington. — State v. Bodeckar, 11 Wash. 417, 39 Pac. 645. But see Hill v. State, 78 Ala. 1, holding that an indictment for the sale or removal of property on which a lien created by law exists should state the name of the person holding the lien, and that an averment that his name is to the grand jury un- known is not sufficient. Charging as nnknoiTn when knonm. — An indictment charging the defendant with conspiracy with others unknown has been held suffi- cient, though the others were in fact known to the grand jury. People v. Mather, 4 Wend. (N. Y.) 229. The name of the deceased iu an indictment for murder was held to be sufficiently stated where the name 396 Chaeging the Offense — Paeticulae Aveements. § 354 the rule is said to be well settled that in, indictments for offenses against the person or property of individuals the christian and surnames of the parties injured must be stated if the injured party be known and that in those cases where the names are not known it must be so stated.^® And in an indictment for attempting to obtain money by false pretenses, it is held essential that the name of the person to whom the false pretenses were made and that of the one from whom it was attempted to obtain the money should be stated.^® And an indictment charging an intent to deceive and defraud " divers citizens of the State " has been held bad where it omitted to name such citizens or to aver that they were to the grand jurors unknown.*'' So it has been held essential that, in an indict- ment for the fraudulent sale of mortgaged property, there should be an. averment either of the name of the person to whom it was sold, or that his name was unknown.^* And likewise it was held in ISTew York that an indictment under the laws of that State in respect to the sale or exposure for sale of impure milk,*® was fatally defective which did not either state the name of the pur- chaser or that his name was unknown.®" was given as " Chino," whose other 537. The court said : " An indict- name was to the grand jurors un- ment must, as an almost universal known. De OUes v. State, 20 Tex. rule, give the accused notice of all the App. 145. particulars of the crime charged. An. indictment charging the which may aid him in preparing for accnsed \rith conspiracy irith his defense, or show a valid excuse. others nnhnoirn is sufficient (Com- Hence, when a fraud is charged, the monwealth v. Edwards, 135 Pa. St. person defrauded must be named, or, 474, 19 Atl. 1064, 26 W. N. C. 242), in excuse, the grand jury must aver and this is held to be true though that he is to them unknown." Per such persons were known to the grand Cunton, J. jury (People v. Mather, 4 Wend. [N. Person against whom a frand Y.] 229). -was perpetrated must be averred 55. Willis v. People, 2 111. 399. in an indictment. State v. Blakely, Per Smith, J. See also State v. Wil- 83 Minn. 432, 86 N. W. 419. son, 30 Conn. 500; State v. McCon- 58. Alexander v. State, 27 Tex. key, 20 Iowa, 574; Commonwealth v. App. 94, 10 S. W. 764; Smith v. State, Stoddard, 9 Allen (Mass.), 280; State 26 Tex. App. 577, 10 S. W. 218. V. Angel, 7 Ired. L. (N. C.) 27. 59. New York Laws 1885, chap. 56. Reg. V. Sowerby (1894), 2 Q. 183. B. 173. 60. People v. Burns, 53 Hun (N. 57. People v. Fish, Sheld. (N. Y.) Y.), 274, 6 N. Y. Supp. 611. 397 §§ 355, 356 CiiAEGiNG THE Offense — Pabticulae Aveem^hts. § 355. Names of third persons — Sufficiency in stating. — In, the description of such persons certainty to a common intent is all that is required.*^ And an indictment is held sufficient where the christian name is omitted,** or where initials are used.®' So it has been declared that where individuals are only collaterally con- cerned in the acts charged in the indictmeant as those whose rights, or persons, or property are affected by the acts constituting the offense, their names are sufficiently indicated by the initials of their christian name.®* And where an information for assault alleges that the assault was committed upon the informant, it is not vitiated by the fact that the name of the person assaulted is not stated in the charging part, where the informant has si^ed and verified the information.®*" § 356. Names of third persons — Names commonly known by. — In stating in aji indictment, the name of the person injured, it is ordinarily sufficient to designate such person by a name by which he is commonly known, and where this is done, the fact that it appears from the evidence that the name stated is not his right name does not constitute a variance which is fatal.®® So it is said in a recent case in Alabama that it is undoubtedly true that the 61. Durham v. People, 5 111. 172; 65. State v. McKinley, 82 Iowa, State V. Crank, 2 Bailey L. (S. C.) 445, 48 N. W. 804. 66, 23 Am. Dec. 117; Cotton v. State, 66. Alabama,— Ford v. State 4 Tex. 260. 129 Ala. 16, 30 So. 27. 62. Commonwealth v. Lampton, 4 GeoPgia.-Whittington v. State, B,bK (Ky.) 261. 121Ga.l93,48S.E.9^. 63. Kansas. — State v. Flack, 48 Kan. 146, 29 Pac. 571 ; State v. Rook, IlImois.-Willl8 y. People, 2 III. 42 Kan. 419, 22 Pac. 626. ' • I,oni9iana.-St«te v. Prince, 42 Iowa.-State v. Bartlett, 128 Iowa, La. Ann. 817, 8 So. 591. ^18, 105 N. W. 59. Maine State v. Cameron, 86 Me. New York.— Cawley v. People, 21 196, 29 Atl. 984. Hun, 415; O'Brien v. People, 48 Barb. Sonth Carolina. — State v. Ander- 274. son, 3 Rich. L. 172. Sonth Carolina. — State v. Crank, Virginia. — Brown v. Common- 2 Bailey's L. 66, 23 Am. Dec. 117. ■wealth, 86 Va. 466, 10 S. E. 745. Texas.— Davis v. State (Tex.), 11 64. Garrish v. State, 53 Ala. 476. - S. W. 64V. 398 Charging the Offense — Paeticulae Aveements. § 357 prosecution may show that the deceased was as well known by the name alleged in the indictment as by his true name, if the one alleged is not his true name, for the purpose of identification.®'^ And in an early case in Illinois it is said that in stating the name of a person upon whom an offense has been committed, certainty to a common intent only is necessary. The name by which he is usually known and distinguished is sufBcient, without stating his resideiuce or addition.®* So in an indictment for assaulting a person with intent to kill it is held in a recent case in New York that it is sufficient to show that such person was known by the name given in the indictment.®® And in this connection it is decided in another case in New York that in an indictment for murder, where the true name of the deceased is charged in the indictment and proved on the trial, there is no variance, though it also appears that the deceased went by another name, and that where the name charged in the indictment is not the true name, yet if it is proved that the deceased was called by that name it is sufficient and there is no variance.'^" § 357. Names of third persons — Error in stating variance — Idem sonans. — The fact that there is a slight error in spelling the name of a third person will not vitiate an indictment where the name as stated and the correct name are idem sonansJ^ And an indictment will not be rendered defective by the fact that there is 67. Stallworth v. State (Ala. name. It 18 sufficient to show that he 1906), 41 So. 184. was known by that name." 68. Durham v. People, 5 111. 172. 70. Walters v. People, 6 Park Cr 69. People v. Way (N. Y. App. Rep. (N. Y.) 15 DJv. 1907), 104 N. Y. Supp. 277. », ., ^ t, . ^ „, T J T .J «vl •*• Alabama. — Point v. State. 37 Judge L0U6HLIN said: "It was 4, , >^<^vc, 01 clearly established that the man at whom defendant shot died as the re- Georgia.— Herron v. State, 93 Ga. suit of a bullet wound inflicted at or ^®*' ^^ ^- ^- '^^^' Chapman v. State, about that time. It was only incum- ^^ ^^^• bent on the people to show that the Illinois. — Barnes v. People, 18 El. defendant assaulted the individual 52. named in the indictment. It was not Massachusetts. — Commonwealth v. essential for the people to show by Woods, 10 Gray, 477. the best evidence that they designated Minnesota. — State v. Timmens 4 tlie person assaulted by his right Minn. 325. 399 § 358 Charging the Offense — Paeticulae Aveemehts. a sligkt eoTor in spelling the christian name of such a person/* or by the fact that theare is an error stating ani initial,''^ or by the omission of an initial.''* In this connection it has been decided where, in an indictment for bigamy, the name of the defendant's first wife was spelled " Celeste " and she testified that her first name was spelled' " Celestia " and she pronounced it in two syllables with the accent on the last, and no other evidence as to the sound or pronunciationi of " Celeste " was given, that the ques- tion of misnomer was rightly submitted to the jury in the applica- tion of the rule that where the two names do not necessarily sound alike, the question of whether they are idem sonans is one for the jury.'''® Again where the name of the person injured is correctly stated in an indictment where it occurs the first time, subsequent stateonents of it in which there is an apparent variation may be rejected as surplusage.''® An error in stating the name may also by statute be cured by amendment.'''' § 358. Names of third persons — Statutes as to error in stating. — In many States statutes have been passed which provide in, substance that if the offense is described with sufficient certainty in an indiotmeint it will not be vitiated by an error in stating the name of the person injured.''® So where it is provided by statute North CaroUna. — State v. Patter- Colombo v. People, 182 111. 411, 55 N. son, 2 Ired. L. 346. E. 519. South Carolina. — State v. Farr, 73. Bernhard v. State, 76 Ga. 613. 12 Rich. L. 24. 74. People v. Ferris, 56 Cal. 442. Compare Haworth v. State, Peck 75. Commonwealth v. Warren, 143 (Tenn.), 89. Mass. 568, 10 N. E. 178. 72. Hall V. State, 32 Tex. Cr. 594, 76. Cotton v. State, 4 Tex. 260. See 25 S. W. 292. See State v. Dickerson, Langdon v. People, 133 111. 382, 24 24 Mo. 365. N. E. 874. There is no Tariance bettpeen 77. State v. TuUa, 72 N. J. L. 575, the indictment and the proof 62 Atl. 675, holding that where the from the fact that the person mur- person killed was described as "John dered is described in the indictment Santa," and it appeared that his as " John Young, Jr.," while most of name was " Joseph Santa," the court the witnesses refer to him as " John- could direct an amendment of the in- nie Young," where it is not shown dictment under Crim. Proc. Act, § 34; that there is any other person in the N. J. Rev. Laws, 1898, p. 878. locality known as " John Young, Jr." 78. People v. Anderson, 80 Cal. 400 Chaeging the Offense — Paeticulae Aveemehts. § 359 that "where an offense involving the oonunission of, or an attemipt to commit, a private injury, is described with sufficient certainty in other respects to identify the act, an erroneous allegation of the person injured is immaterial, an indictment for larceny is held not insufficient, in failing to properly state the owner of the stolen property, if it is sufficiesnt to apprise defendant of the offense of ,which he is charged.''* § 359. Names of third persons — When not necessary to state. — The names of third persons who are coUatefrally connected with the offense, and whose identity is not essential to such a de- scription thereof as is necessary to properly inform the accused of the nature and cause of the accusation against him, need not be stated.*" So it has been decided that in an indictment for altering and defacing ballots the njames of electors whose ballots are claimed to have been altered need not be stated ;^^ that in an indictment for betting at a game of cards the names of others than the accused, who were betting, need not be given f^ that in an indictment for 205, 22 Pac. 139; Cal. Pen. Code, § 956; State v. Congrove, 109 Iowa, 66, 80 N. W. 227; Iowa Code, § 5286; Mcaain's Ann. Code, 1888, § 5687; Commonwealth v. Stone, 152 Mass. 498, 25 N. B. 967; Mass. Pub. Stat., chap. 213, § 16; State v. Eiley, 100 Mo. 493, 13 S. W. 1063; Mo. Rev. Stat., §§ 1812, 1820. 79. State v. Vincent, 16 S. D. 62, 91 N. W. 347. But see State v. Blakely, 83 Minn. 432, 86 N. W. 419. 80. nUaois. — Binger v. People, 21 111. App. 367. Imdiiana. — State t. Hopper, 133 Ind. 460, 32 N. E. 878; State vj Mc- Cormack, 2 Ind. 305. loiva. — State v. Garrett, 80 Iowa, 589, 46 N. W. 748. Mich i gan. — ^People v. Smith, 94 Mich. 644, 54 N. W. 487; People v. Van Alstine, 57 Mich. 69, 23 N. W. 594. Hississippl. — Campbell v. State (Miss.), 17 So. 441. MisBonri. — State v. Warren, 109 Mo. 430, 19 S. W. 191. North Carolina. — State t. Poy, 98 N. C. 744, 3 S. E. 524. Oregon. — State v. light, 17 Oreg. 358, 21 Pac. 132. FejuLsylTania. — Gorman v. Com- monwealth, 124 Pa. St. 536, 17 Atl. 26. Texas.— Franklin v. State, 34 Tex. Cr. 203, 29 S. W. 1088. 'Washington — State ▼. Wilson, 9 Wash. 16, 36 Pac. 967; Foster v. State, 1 Wash. 411, 25 Pac 459. West Virginia,— State t. Tingler, 32 W. Va. 546, 9 S. E. 935. 81. Binger v. People, 21 El. App. 367. 82. State v. Light, 17 Oreg. 358, 21 Pac. 132. See State v. Wilson, 9 401 26 § 359 Chabginq the Offense — Paetioulab Aveements. resisting an officer wMl© taking a prisoner to jail it is not necessary to give the name of the prisoner;** that in an indictment against a justice for failure to make out and file a list of the fines assessed by him, ithe names of those against whom the fines bad been as- sessed need not be stated ;** that it is not necessary to allege, in an information) for receiving stolen goods, the name of the one by whom the gooda were stolen;^' that in an indictment for forgery with intent to defraud it is not necessary to state the name of the one intended to be defrauded ;*® that in am indictment for sale of intoxicating liquors im violation of law the names of parties to whom a sale was made need not be stated,®'' and that the name of a person upon whom the defendant practiced need not be alleged in an indictment for practicing medicdne without a license.*® And it is held that in an indictment for bigamy it is not necessary to state the name of the person by whom the first marriage was solemnized, or the maiden name of the first wife f^ or in an indict- ment for adultery to state the name of the defendant's wife;®" or in an indictment for attempt to commit rape, which chargeis that the prosecutrix was a married woman, to state the name of her husband f^ or in an indictment for keeping a disorderly house, to allege the names of any persons who frequented it.'* Wash. 16, 36 Pac. 967; Foster v. Itoniaiana. — State v. Brown, 41 State, 1 Wash. 411, 25 Pac. 459. La. Ann. 771, 6 So. 638. 83. State v. Garrett, 80 Iowa, 589, Missonxi. — State v. Wingfield, 115 46 N. W. 748. Mo. 428, 22 S. W. 363 ; State v. Ford, 84. State v. McCormaek, 2 Ind. 47 Mo. App. 601 ; State v. Houts, 36 305. See State v. Foy, 98 N. C. 744, Mo. App. 265. 3 S. E. 524. North Dakota. — State v. Del- 85. People v. Smith, 9i Mich. 644, laire, 4 N. D. 312, 60 N. W. 988. 54 N. W. 487. 88. State v. Van Doran, 109 N. C. 86. United States v. Jolly, 37 Fed. 864, 14 S. E. 32. 10; People v. Van Alstine, 57 Mich. 89. Hutehins v. State, 28 Ind. 34. 69, 23 N. W. 594; State v. Warren, Compare State v. La Bore, 26 Vt. 109 Mo. 430, 19 S. W. 191; State v. 765. Tingler, 32 W. Va. 546, 9 S. E. 935. 90. Gorman v. Commonwealth, 124 87. Florida. — Dansey v. State, 23 Pa. St. 536, 17 Atl. 26. Fla. 316, 2 So. 692. »1. Franklin v. State, 34 Tex. Or. Kansaa.— State v. Moseli, 49 Kan. 203, 29 S. W. 1088. 142, 30 Pac. 189; Junction City v. 92. State v. Patterson, 7 Ired. L. Webb, 44 Kan. 71, 23 Pac. 1073. (N. C.) 70. 402 Chaeging the Offense — Paeticulae Aveements. §§ 360, 361 § 360. Names of third persons — Infants. — An indictment for the murder of an infant child, which alleges that the ohild had no name,®' or that its name is to the grand jurors unknown is suffi- cient.®* And in a ease in England, where an indictment for the murder of a bastard child, described the prisoner as a single woman, stated, that she, being big with a male child, did bring forth the said child alive and that she " afterwards, to wit, on the day and year aforesaid, with force and arms ... in and upon the said male child, feloniously did make an assault," etc., it was held that the child was sufficiently described, although the indict- ment neither stated the name of the child, nor that its name was to the jurors unknown, nor that it had no name.®^ In an earlier English case, however, it was held that an indictment for the murder of an illegitimate child could not be sustained which alleged that the child was " a female of tender age, whose name is to the jurors aforesaid unknown," in the absence of evidence show- ing that the name of the child oould not reasonably ihave been supposed to be known by the grand jury.®* § 361. Names of third persons — In case of corporations. — Where the party against whom an offense has been committed is a corporation an indictment therefor should, as a general rule, state the corporate name and that it is a corporation.®'^ So it has been decided in Wew York that it is necessary to allege in the indict- as. Triggs V. State (Tex. Cr. gitimate child, and had no name 1899), 53 S. W. 104, holding also that when it came into the world. To state it was not necessary to allege the that its name was to the jurors un- age or sex of the deceased. See also known assumes that something had Puryear v. State, 28 Tex. App. 73, 11 been done by which the child had ac- S. W. 929. quired a name; but as there is noth- 94. State v. Richmond, 42 La. Ann. ing here to show that the child had 299, 7 So, 459. acquired any name that allegation is 95. Regina v. Willis, 1 Car. & K. unnecessary." 722. Judge Colebidge said in this 96. Regina v. Stroud, 1 Car. & K. case: "I think the objection ought 187, so holding where it clearly ap- not to prevail. The objection is peared that the child had a christian founded in this: that it must be pre- name. sumed that the child had a name,; but 97. Alabama.— Emmonds v. State this child could only acquire a name 87 Ala. 12, 6 So. 54. by reputation, because it was an ille- 403 § 361 Chaeging the Offense — Paeticulae Avebments. memt and also to prove at the trial, that the corporation alleged to have been injured by the offense of the defendant v?as an existing corporation.*^ And in this connection it is said that " the indict- ment should aver facts which show that the company is a corpora- tion. The use of a name wihich may import a corporation, or wliioh, on the other hand, may be that of a voluntary association or a simple partnership, will not suffice. It is enough in civil causes, depending on corporate character, at least on appeal, to allege a name appropriate to a corporation; but the rule which requires indictments to aver every fact necessary to an affirmation of guilt, is not satisfied, as long as any one of these facts is left to implication or inference."*® And it has been decided that the expression " railroad company " does not necessarily import a corporation and that the court will not take judicial notice that the company is a corporation unless it is so alleged.* But it is said in a case in Indiana : " We think it fairly deducible from the authorities, that, when an ideality is referred to in a pleading by a name such as is usual in creating corporations, and which discloses no individuals, a corporate existence is implied without being specially averred."^ And it has been decided that a statement of the name of the corporation as owner of the property in an indidr ment for larceny is sufficient without averring that it is a cor- poration.' So in a case in 'New York it was decided that " The Arkansas. — See Gage v. State, 67 98. Cohen v. People, 5 Park. Cr. Ark. 308, 55 S. W. 165. Rep. (N. Y.) 330. California. — People v. Bogart, 36 9». Emmonds v. State, 87 Ala. 12, Cal. 245. 6 So. 54. Per McCmslian, J. Texas.— Thurmond v. State, 30 1. State v. Mead, 27 Vt. 722. The Tex. App. 539, 17 S. W. 1098; Brown court said: "The expression " rail- V. State, 26 Tex. App. 540, 10 S. W. road company ' does not ex vi termini 112. import that of necessity they must be Venuoat. — State v. Mead, 27 Vt. a corporation under the laws of this 722. State or any other State; and we It is ordinarily sufficient in an cannot, unless it is so alleged, take indictment for an offense committed judicial notice that such is the fact." against a corporation to give the cor- Per Bennett, J. porate name and to state that the 2. Johnson v. State, 65 Ind. 204. company named is a corporation do- Per Niblack, J. ing business in the State. Duncan v. 3. State v. Rollo, 3 Penn. (Del.) State, 29 Fla. 439, 10 So. 815. 421, 54 AU. 683. 404 Chakging the Offense — Paeticulae Aveements. § 361 Meriden Cutlery Company" was a sufficient desigaation of the body, partnership or persons intended to be defrauded, it being declared that it appearing on the trial that a company did business under that name, and was defrauded, it was immaterial whether it was or was not incorporated, or what was its constitution, it being enough to show an existing body of persons, capable of being defrauded.* And in this connection it is held that it is not neces- sary to the sufficiency of an indictment for burglary and larceny that it should allege that the owner of the property was a corpora- tion, or that as such it was capable of owning property.^ And in a case in Tennessee, where one had been indicted for the fraudu- lent possession or concealment of a coimterf eit bank note, purportr ing to have been issued by a public banking corporation of that State, it was complained of as error that the court refused to instruct, the jury that it was necessary to aver and prove that the bank was a chartered institution, and it was held that such refusal was correct, it being declared that "the courts well judicially know that fact, as to the banks within the State, and what is judicially known need not be averred and proved." It was, however, further declared that it was otherwise as to extra-territorial banks, and that their existence when material must be averred and proved by the production of their charters of incorporation.* Again, an averment in an information for the malicious destruction of property, that it belonged to a specified church " society " has been held not to render the information bad where it is provided by statute that no information shall be held insufficient because any person men- tioned therein is designated by a descriptive appellation instead of his proper name and that, in the construction of statutes, the See People v. Henry, 77 Cal. 445, People v. Jaekson, 8 Barb. (N. Y.) 19 Pac. 830. 637, wherein it is said, upon the ques- 4. Noakes v. People, 25 N. Y. 380. tion of judicial notice: " Bank char- 5. State V. Shields, 89 Mo. 259, 1 ters are generally private statutes, S. W. 336; Fisher v. State, 40 N. J. and there are many banks in this L. 169; State V. Grant, 104 N. C. 908, State organized under the general 10 S. E. 554, 27 Am. & Eng. Corp. banking law, carried on by associa- Cas. 490. tions and individual bankers. In all 6. Owen v. State, 5 Sneed. ( Tenn. ) , such cases the court can not take ju- 493. Per Cabuthebs, J. Compare dicial notice of them, any more than 405 § 362 Chaeging the Offense — Paeticdlar Aveements. word person may extend to and be applied to corporations.^ And where by statute certain acts against a railroad corporation are made criminal offenses, it is essential in an indictment thereunder that persons against whom such an offense is alleged to have been committed should be stated as within the class specified by the statute.® § 36l2. Same subject continued — Organization of corpora- tion. — ^Although there should generally be an averment of the name of the corporation and the fact that it is a corporation, yet it is decided that where an offense is committed against the property of another it is generally sufficient to describe the owner, if a corporation, by its corporate name, stating in substance that it is a corporation, without averring that it " was incorporated " or " was duly incorporated-"® So in an indictment for wilfully and ma- liciously burning a bridge owned by a corporation it has been decided that it is sufficient to describe the owner by its corporate name and state in substance that the company is a corporation doing business in the State, it not being necessary to allege that it was " duly organized or incorporated under the laws of any State or territory."^** And in an early case in New York it was held that an indictment for grand larceny of bank notes was sufficient which alleged that the defendant stole, took and carried away certain promissory notes, issued by <»rtain named banks, it being declared that it was of no consequence whether the banks were organized within the bounds and under the laws of that State or were banks of other States or countries, so far as the allegations in the indictment were concerned, the names of the banks being merely mentioned by way of description of the property stolen.*^ And where it is averred in an indictment that the company injured it could of an ordinary partnership 9. Duncan v. State, 29 Fla. 439, 10 between two or more individuals." So. 815; Owen v. State, 5 Sneed. Per Weixs, J. (Tenn.), 493. See Gates v. State, 71 7. People v. Ferguson, 119 Mich. Miss. 874, 16 So. 342. 373, 78 N. W. 334, decided under 2 10. Duncan v. State, 29 Pla. 439, How. Stat., § 9534, and 1 How. Stat., 10 So. 815. § 2, subd. 12. 11. People v. Jackson, 8 Barb. (N. 8. State V. Mead, 27 Vt. 722. Y.) 637. 406 Chakging the Offense — Paeticulae Aveements. §§ 363, 364 is a corporation, proof of the existence of the corporation de facto is held to support the averment.*^ § 363. Same subject — Unnecessary averments. — ^Whether a corporation is a domestic or foreign corporation need not he averred.^* And in an indictment for larceny from a corporation, it is not necessary to state the law under which it is incorporated.** And where the ownership of stolen property is laid in a corporation it is not necessary to state the names of the shareholders.** § 364. Names of third persons — Partners or joint owners. — Where an offense has been committed against a partnership an indictment therefor should allege that fact and state the names of the individual partners.** And at common law if stolen goods are the property of partners, or joint owners, the names of all the partners, or joint owners, must be stated.*^ So in an. early case in' California it was decided that an indictment for burning a building insured against fire, with intent to defraud an insurance company, should aver that the company was a corporation, if such were the fact, or that it was a partnership composed of certain in- dividuals, naming them, if such were the fact, and that the act was done with intent to injure and defraud them in their associate capacity.** And where the charge is the intent to injure a body 12. People V. Schwartz, 32 Cal. 15. Emmonds v. State, 87 Ala. 12, 160; Duncan v. State, 29 Fla. 439, 10 6 So. 54. So. 815, wherein the court said : " It 16. Emmonds v. State, 87 Ala. 12 is sufficient if the indictment states 6 So. 54; People v. Bogart, 36 Cal. simply that it is a corporation; and 245. the proof of this allegation in such 17. People v. Bogart, 36 Cal. 245. cases, we think, is sufficient, if it Per Sandeeson, J., citing Common- shows that the company named was wealth v. Trimmer, 1 Mass. 476 ; Hogg de facto in existence, and, de facto, v. State, 3 Blaekf. (Ind.) 326; State exercising corporate fimetions and v. Owens, 10 Rich. L. (S. C.) 169. franchises." Per Tatlob, J. Compare People v. Curling, 1 13. Johnson v. State, 65 Ind. 204. Johns. (N. Y.) 320. See State v. Fitzpatrick, 9 Houst. 18. People v. Schwartz, 32 Cal. (Del.) 385. 160, holding that a mere averment of 14. McCarney v. People, 83 N. Y. the company name amounted in a 408. See also Smith v. State, 34 Tex. legal sense to an entire absence of any Cr. 265, 30 S. W. 236. averment as to the party intended 407 § 365 Charging the Offense — Paeticulae Avebments. of persons by a company name, imleas sucb company is incor- porated, it is decided that it is necessary to aver that the accused did the act with intent to injure the persons composing that com- pany, stating the names of such, persons.*® But in a case in Indiana it is held that in an indictment for obtaining goods by false pretenses, it is sufficient to charge that the representations were made to a partnership by its firm name, and also the owner- ship of the property, possession of whioh was obtained by means of the false pretenses, to be in the partnership by its firm name.*" § 365. Names of third persons — Amendment to correct error in, — By statute in some States an amendment may be made in the name or descriptiori of any person or body alleged to have been inrjured by the commission of the offense, where the variance between the name stated and that proved is not material to the merits of lhe> ease.''* So it is decided under such a statute that where the name of a third person, as owner, does not go to the substance of the offense, and is a mere matter of description, and the property is otherwise fully identified and the accused placed on his defense as to which property is meant by the description, a statement as to the name of the ovsmer may be amended by insert- ing the true name.^^ So during the progress of the trial of a per- to be injured, for the description was MigBiBslppi. — ^Miller v. State, 53 not of a private individual or of pri- Miss. 403; Miss. Code, 1871, { 2799. vate individuals under a common Montana. — State v. Oliver, 20 name, or of a corporation, or of a Mont. 318, 50 Pae. 1018; Mont. Pen. body politic, or of any other parties Code, § 1859. named in the statute. Pennsylvania. - Rosenberger v. 1». Staaden v. People, 82 111. 432, Commonwealth, 118 Pa. St. 77, 11 citing Wallace v. People, 63 111. 451. ... -„o 20. State v. Williams, 103 Ind. 235. 21. Alabama—Ross v. State, 55 „,'^'!T'„"**7f*!^!!. '■„f^''?"'"*'„l* Ala. 177; Ala. Rev. Code, § 4143. I40iiisiana. — State v. Bright, 105 La. Ann. 341, 29 So. 903; La. Rev. '^'^ England it was so provided by St., § 1047. Stat. 14 and 15 Vict., chap. 100, S 1- Micbigaa. — People v. Brown, 110 22. State v. Satterwhite, 52 La. Mich. 108, 67 N. W. 1112; 2 How. Ann. 499, 26 So. 1006; State v. Stat., § 9537. Haucks, 39 La. Ann. 236. 408 Vt. 405, 23 Atl. 636; Vt. Acts 1882, No. 86. Chaeqing the Offense — Paeticulae Aveements. § 366 son accused of murder it has been held permissible to amend the indictment by changing the ohristian name of the deceased as stated therein so as to eoiJUfonn to the proven facts in the case.** And in a case in New York where the larceny of the property of a certain bank was charged, but the corporate title of the bank was not cor- rectly given, it was held proper to amend the indictment in this respect, it being declared that this amendment did not affect the substance of the charge against the defendant.** And in the case of assault with intent to kill and murder it has been held proper to permit an amendment by changing the surname of the person assaulted to the name diown by the proof .^^ So under such a pro- vision in New York,*® it is decided that where in an indictment for seduction under promise of marriage the correct surname of the female is not given, an amendment may be directed by the court to cure the defect*'' § 366. Charging prior conviction — Second conviction chang- ing grade of offense. — There are many cases in which a second conviction changes the grade of the offense or authorizes the inflic- tion of an increased punishment, and where this is the case the former conviction enters as an element into the new offense and should be alleged as a necessary part of the description and char- 23. State v. Peterson, 41 La. Ann. see any reason for holding that the- 85, 6 So. 527, decided under La. Rev. trial of the accused was at all preiu- St., I 1047. See Miller v. State, 68 diced thereby. The amendment ap- Miss. 221, 8 So. 273, wherein it is pears to have been proper, and is held that it is proper to amend the abundantly supported by precedent in indictment, so as to conform to the this State." Per Woods, J. undisputed facts proved, by substi- 24. People v. Dunn, 53 Hun (N. tuting the true christian name of the Y.), 381, 6 N. Y. Supp. 805 decided deceased for that which has been er- under §§ 281-293, Code of Crim. Proe. roneously inserted by the grand jury, and citing and following People v. The court said: "The identity of the Herman, 45 Hun (N. Y.), 175. offense charged was not disturbed, and 25. Miller v. State, 53 Miss. 403 the real charge preferred by the in- decided under § 2799, Code 1871. dictment was not changed. . . . 26. N. Y. Code of Crim. Proc. § There was no surprise to defendant 293. by the substitution of the true chris- 27. People v. Johnson, 104 N. Y. tian name of the deceased, nor can we 213, 10 N. E. 690. 409 § 366 Charging the Offense — Paeticulae Avebments. acter o£ the crime intended to be pttnislied.*® This priausiple comes within the general rule that the facts constituting the offense 28. 6eore:ia. — McWhorter v. State, 118 Ga. 55, 44 S. E. 873. Iowa. — See State v. Zimmenna.n, 83 Iowa, 118, 49 N. W. 71. Kentucky. — See Commonwealth v. Finn, 27 Ky. Law Rep. 771, 86 S. W. 693; Conner v. Commonwealth, 16 S. W. 454. Massachnsetts. — Commonwealth v. Walker, 163 Mass. 226, 39 N. E. 1014; Wilde V. Commonwealth, 2 Mete. 408. Michigan. — People v. Buck, 109 Mich. 687, 67 N. W. 982. Missouri. — State v. Austin, 113 Mo. 538, 21 S. W. 31. Nexr Hampsliire. — State T. Adams, 64 N. H. 440, 13 Atl. 785. New Tork. — Phelps v. People, 72 N. Y. 334, 355; Wood v. People, 53 N. Y. 511; People v. Powers, 6 N. Y. 50; People v. Bosworth, 64 Hun, 72, 19 N. Y. Supp. 114; People v. Price, 6 N. Y. Cr. R. 141; People v. Youngs, 1 Caines, 37. But see John- son V. People, 65 Barb. 42. OUo. — Blackburn v. State, 50 Ohio St. 428, 36 N. E. 18. Femnsylvania. — ^Rauch v. Com- monwealth, 78 Pa. St. 490. Texas. — Long v. State, 36 Tex. 6; Kinney v. State (Tex. Cr. 1905), 84 S. W. 590; Kinney v. State, 45 Tex. Cr. 500, 78 S. W. 226, 79 S. W. 570. Virginia. — See Satterfleld v. Com- monwealth, 105 Va. 867, 52 S. E. 979. Wisconsin. — Paetz v. State (Wis. 1906), 107 N. W. 1090. But see State v. Smith, 8 Rich. L. (S. C.) 460. Time of raising objection. — An objection that an information for a third offense is defectiTe in not averring prior convictions, may be raised on appeal by assignments al- leging error in the charge, authoriz- ing a conviction for a third offense, and in the sentence, imposing a pun- ishment appropriate to such a. convic- tion, and in excess of what could be lawfully imposed for a first convic- tion; and this, notwithstanding the respondent pleaded to the information before moving to quash the same for the reason stated. People v. Buck, 109 Mich. 687, 67 N. W. 982. The second offense mnst be committed after a conviction of the first in order to warrant the increased punishment. People v. But- ler, 3 Cow. (N. Y.) 347. A statute is constitutional which provides for an increased pen- alty where there has been a prior con- viction. Whorton v. Commonwealth, 7 Ky. Law Rep. 826; Sturtevant v. Commonwealth, 158 Mass. 598, 33 N. E. 648. As affected by time of com- mission of first offense. — ^A code provision increasing the punishment where the offense charged is a second offense, has been held to apply to cases where the first offense was com- mitted before the code went into ef- fect. People V. Raymond, 96 N. Y. 38. An offense iHll be deemed a first offense unless the contrary is charged. People v. Cook, 45 Hun (N. Y.). 34, 37. 410 Chaeging the Offekse — Paeticulae Aveements. § 366 intended to be punished should be averred,'*® and that it is neces- sary to inform the accused of the leading grounds of the charge, so as to enable the court to pronounce the proper judgment affixed by law to the comibination of facts alleged, and to enable the party to plead the judgment in bar of a second prosecution.*" So in a case in Ohio it is held under a statute authorizing a sentence of imprisonment for life upon a third conviction for a felony, that to authorize such a sentence thereunder the indictment should allege that the defendant had been previously twice convicted, sentenced and imprisoned, in some penal institution for felonies, describing each separately.** So a sentence to am increased penalty, imposed by statute upon a second conviction, cannot be rendered, except upon an allegation, in the indictment, and upon proof, of a prior conviction .*'' And it is error on the trial of a person to introduce evidence of a former conviction for a like offense where the prior conviction is not alleged.** But though an indictment may not contain a sufficient allegation of a prior conviction it may neverthe- less be sufficient as to the new offense charged therein,** and there may be a conviction as for a first offense.*® Again where the de- scription of a previous conviction is found to be imperfect, inexact, or in any respect variant from the record, it is decided that under a statute so providing it may be amended so as to conform to the record, without the formality of sending the case back to the grand jury, to find a new indictment.*^ 29. Tuttle V. Commonwealth, 2 the fact of such prior conviction must Gray (Mass.), 505. be charged as well as proved." Per 30. Phelps V. People, 72 N. Y. 334, Shaw, C. J. 355. Per Folgeb, J. 33. Long v. State, 36 Tex. 6. 31. Blackburn v. State, 5 Ohio St. 34. State v. Dorr, 82 Me. 341, 19 428, 36 N. E. 18. Atl. 861, so holding where an indict- 32. Tuttle V. CJommonwealth, 2 ment stated the time of the prior con- Gray (Mass.), 505. It was said in viction as in the year 1088. this case: "When the statute im- 35. Palmer v. People, 5 Hill (N. poses a higher penalty upon a second Y.), 427, so holding where an indict- and a third conviction, respectively, ment for petit larceny described it as it makes the prior conviction of a a second offense, and citing People v. similar offense a part of the descrip- Jackson, 3 Hill (N. Y.), 92, as sna- tion and character of the offense in- taining the decision, tended to be punished; and therefore 36. Conunonwealtii v. Holley, 3 411 §§ 367, 368 Charging the Offense — Paeticulab Aveements. § 367. Same subject — Sufficiency of averment. — The pre- vious conviction need not be set forth in extenso, it being sufficient if the imdictment set forth the conviction with such particularity as to identify it and indicate the character of the offense charged, and if it also set forth the sentence with such exactness as to show that it brings the accused within the law for additional punish- ment.*'^ And where a statute provides for an increased punish- ment for a second conviction for a felony it is sufficient to charge that the prior conviction was for a felony, without alleging the particular offense.*^ § 368. Same subject — As to jurisdiction of prior offense. — It is held to be essential in suxsh a case that the indictment should not only allege the prior conviction but should also state such facts as show that the court before whom the first conviction was had, possessed jurisdiction as well of the subg'ect matter as of the person of the prisoner.** But it has been held sufficient in an indictment Gray (Mass.), 458, holding that » statute so providing is not in viola- tion of the declaration of rights which provides that no subject shall be held to answer for any crime or oflFense until the same is fully and plainly, substantially and formally described to him. a7. Wilde V. Commonwealth, 2 Mete. (Mass.) 408. Teclmical accnracy in setting forth record of a prior conviction not essential. See State v. Wentworth, 65 Me. 234, 20 Am. Kep. 688. It is not necessary to shoir tbe ponishment actually suffered, it being sufficient to charge the prior conviction. Brown v. Commonwealth, 22 Ky. Law Rep. 1582, 61 S. W. 4, decided under Ky. St., § 1130. 38. Whorton v. Commonwealth, 7 Ky. Law Rep. 826. 39. People v. Powers, 6 N. Y. 50, so holding in the case of an indict- ment for the second offense of petit larceny. The court said: "The in- dictment in this case, in order to show a conviction of the prisoner for the first offense, in due form, should have, preliminary to the statement of his trial and conviction, stated the charge made against him before the justice and in what form, the pro- ceedings had before him upon it and the issuing of the process thereon, his arrest and being brought before the justice; showing thereby that there was a charge for petit larceny made in due form against him, and legal process issued for his arrest thereon; that he was arrested, brought before the justice and elected to be tried for the offense charged be- fore the justice, pursuant to the pro- visions of the statute in such cases. Such allegations would have shown 412 Charging the Offense — Pakticulae Aveements. § 369 for petit larceny, charged as a second offense, to aver, generally, that the court before which the defendont was convicted, had full and competent authority and power in the premises, without setting forth the particular facts showing jurisdiction.*" §! 369. Same subject — Statute making it uimecessary to allege prior conviction — Constitutionality of — It is provided by the constitution in most of the States that the accused is entitled to be informed of the natiu^ and cause of the accusation against him.*^ Under such a provision it is necessary that the constituent elements of the offense shall be set out so that the accused may be enabled to properly prepare his defense aad to plead a judgment of acquittal or conviction in bar of a second prosecution. This right so secured requires that vyhere it is sought to convict a person of a second offense carrying with it an increased punishment, it is essential to properly set out the first conviction in the indictment, and it is not within the power of the Legislature to provide that in an indictment for a second offense it shall not be necessary to allege the prior conviction. So in Massachusetts it has been decided that a statutory provision that in complaints for drunken- ness it shall not be necessary to allege previous convictions, though the penalty in such a case is increased, is in conflict with the pro- vision of the declaration of rights in that State that no subject shall be held to answer for any crime or offense until tiie same is fully and plainly, substantially and formally described to him.*^ But in Louisiana it is decided that, under the statute permitting the judge to increase the penalty for a second or third offense, previous convictions should not be charged, as they are not essential ingredients of the offense charged and might prejudice the jury, but that after verdict the State may inform the judge, or he may act upon his own suggestion, in respect to previous convictions.** jurisdiction in the justice of the sub- 40. People v. Golden, 3 Park. Cr. jeet matter and of the person of the R. (N. Y.) 330. prisoner." Per Jewett, J. 41 gee § 237 herein. See also People v. Cook, 2 Park. Cr. K. (N. y.) 12. ^^' Commonwealth v. Harrington, Compare Satterfield v. Common- 130 Miass. 35. ■wealth, 105 Va. 867, 52 S. E. 979. 4^. State v. Hudson, 32 La. Ann. 413 § 370 Charging the Offense — Paktigular Averments. § 370. Same subject — Averment as to discharge — Sentence. — 'Where a statute makes an offense an aggravated one •where com- mitted after a former conviction of an offense punishable by imprisonmenit in a State prison, and a discharge " either upon being pardoned, or upon the expiration of his sentence," upon such conviction, the discharge in one of the ways mentioned in the stair ute becomes a material fact which must be alleged as well as the conviction.** And where a statute provided for an increased punishment where the accused has been convicted and sentenced for a like offense it is necessary to aver not only a conviction but also a sentence.*" 1052. See also State v. Smith, 8 538, 21 S. W. 31; Gibson v. People, Rich. L. (S. C.) 460. 5 Hun (N. Y.), 542, as to sufficiency 44. Wood V. State, 53 N. Y. 511; of allegation of discharge. Stevens v. People, 1 Hill (N. Y.), 261. 45. People v. Ellsworth, 68 Mich- See Evans v. Commonwealth, 3 Mete. 496, 36 N. W. 236. (Mass.) 453; State v. Austin, 113 Mo. 414 Chaeging the Offense — Statutoey Offenses. § 371 CHAPTER XIII. Chabging the Offense — Statutoey Offenses. Section 371. Statutory offenses — General rule as to charging in language of statute. 372. Qualification of general rule as to charging offense in words of statute. 373. Same subject continued — ^Where statute employs general or com- prehensive words. 374. Offense must be brought within words of statute. 375. Same subject — Illustration of rule. 376. Must apprise defendant with reasonable certainty of nature of accusation. 377. Same subject — Sufficient if words used make charge clear — Sur- plusage. 378. Offense composed of several elements or multiplicity of acts. 379. Same subject — Kule in New York. 380. Use of common law form in charging offense. 381. Use of words equivalent to those of statute. 382. Where statute is in disjunctive — Use of conjunctive. 383. Recital of statute on which indictment based not necessary. 384. Effect of misrecitals as to statute. 385. Misrecitals of statutes — Effect of conclusion. 386. Private statutes — Recitals as to. 387. Indictment not sufficient under statute pleader had in view but good under another statute. 388. Where several amendments to statute. 389. Rule as to charging statutory misdemeanors. 390. Exceptions in statute — General rule. 391. Same subject — ^Application of rule. Sec. 371. Statutory offenses — General rule as to charging in language of statute. — It may be stated generally, that it is ordi- narily sufficient for an indictment or information to charge a statu- tory offense in the language of the statute where by so doing the accused is sufficiently apprised of the nature and cause of the 415 § 371 Chaeging the Offense — Statdtoky Offenses. accusation against him.* So it is said that while it is not always sufficient to charge an offense in the language of the statute, yet 1. United States. — ^United States V. Ballard, 118 Fed. 757; United States V. Henry, 26 Fed. Cas. No. 15,350, 3 Ben. 29. Alabama. — State v. Briley, 8 Port. (Ala.) 472. Arkansas. — State v. Culbreath, 71 Ark. 80, 71 S. W. 254. Californiaii — People v. Keeley, 81 Cal. 210, 22 Pac. 593; People v. Eua- dell, 80 Cal. 616, 23 Pac. 418; People V. White, 34 Cal. 183. Connecticut. — State v. Cady, 47 Conn. 44. Georgia. — Glover v. State (Ga. 1906), 55 S. E. 592; Hines v. State, 26 Ga. 614. Idalio. — People v. Butler, 1 Ida. 231. Illinois. — Gallagher v. People, 211 111. 158, 71 N. E. 842; Bolen v. People, 184 111. 338, 56 N". E. 408; Brennan v. People, 113 111. App. 361; Ward V. People, 23 111. App. 510. Indiana. — State v. Beach, 147 Ind. 47, 46 N. E. 145, 36 L. E. A. 179; Benham v. State, 116 Ind. 112, 18 N. E. 454; State v. New (Ind. App. 1905), 76 N. E. 181. Iowa. — State v. Beebe, 115 Iowa, 128, 88 N. W. 358; State v. Grant, 86 Iowa, 216, 53 N. W. 120; State v. Smith, 46 Iowa, 670; Eomp v. State, 3 G. Greene. 276. Kansas. — State v. Blakesley, 39 Kan. 152, 18 Pac. 170. Kemtncky. — Commonwealth v. Chesapeake & Ohio Eailway Com- pany, 101 Ky. 159, 40 S. W. 250; Commonwealth v. Bryant, 11 Ky. Law Eep. 426, 12 S. W. 276; Mitchell V. Commonwealth, 10 Ky. Law Eep. 910, 11 S. W. 209; Iionisiana. — State v. Alexander, 113 La. 747, 37 So. 711; State t. Souier, 107 La. Ann. 794, 32 So. 175; State V. Holmes, 40 La. Ann. 173, 3 So. 564. Main«. — State v. Doran, 99 Me. 329, 54 Atl. 440, 105 Am. St. Eep. 278; State v. Snowman, 94 Me. 99, 46 Atl. 815, 80 Am. St. Eep. 380, 50 L. E. A. 544. Maryland. — Kearney v. State, 48 Md. 16; Parkinson v. State, 14 Md. 184, 74 Am. Dec. 522. Massachusetts. — Commonwealth v. Dewhirst, 190 Mass. 293, 76 N. E. 252; Commonwealth v. Malloy, 119 Mass. 347; Commonwealth v. Con- nelly, 163 Mass. 539, 40 N. E. 862; Commonwealth v. Prescott, 151 Mass. 69, 23 N. E. 729. Hichiean. — Eice v. People, 15 Mich. 9. Minnesota. — State v. Abrisch, 41 Minn. 41. Missouri. — State v. Keutner, 178 Mo. 487, 77 S. W. 522; State v. Adams, 108 Mo. 208, 18 S. W. lOOO State V. Murphy, 49 Mo. App. 270 State V. Smith, 24 Mo. App. 413 State V. Walker, 24 Mo. App. 679. Nebraska. — Peterson v. State, 64 Neb. 875, 90 N. W. 964. New Hampshire. — State v. Kene- ston, 59 N. H. 36; State v. Bust, 35 N. H. 438. New Jersey. — Bassette v. State, 51 N. J. L. 502, 18 Atl. 354; State r. Halsted, 39 N. J. L. 402. 416 Chaeging the Offense — Statutoky Offenses. § 371 ■when the words of the statute creating the offense plainly indi- cate the nature of the crime it is sufficient to charge the offense New York. — Phelps v. People, 72 N. Y. 334; People v. Higbie, 66 Barb. (N. Y.) 131. North Carolina. — State v. Stan- ton, 23 N. C. 424; State v. Howe, 100 N. C. 449, 5 N. E. 671. Oregon. — State v. Light, 17 Or. 358, 21 Pac. 132. Sontlt Carolina. — State v. Wil- liams, 2 Strobh. (S. C.) 474. Tennessee. — ^Harrison v. State, 42 Tenn. 232. Texas. — ^Longley v. State, 42 Texas, 490. Utah.— State v. Swan (Utah, 1906), 88 Pac. 12; State v. William- son, 22 Utah, 248, 62 Pac. 1022, 83 Am. St. Rep. 780. Vermont. — State v. Daly, 41 Vt. 564. ■Washington. — State v. Tiffany (Wash. 1906), 87 Pac. 932. ■West Virginia. — Stale v. Riffe, 10 W. Va. 794. Wyoming. — Edelhoff v. State, 5 Wyo. 19, 36 Pac. 627. Further citations showing ap- plication of rnle.— The rule that charging an offense in the language, or in substantially the language, of the statute has been applied in the case of an information charging the offense of aiding a prisoner to escape (People V. Murray, 57 Mich. 396, 24 N. W. 118); assault with a deadly weapon (People v. Savereord, 81 Cal. 650, 22 Pac. 856) ; an indictment for assault with intent to inflict bodily injury (Murphy v. State, 43 Neb. -34, 61 N. W. 941; attempted abor- tion ( Scott V. People, 141 111. 195, 30 N. E. 329) ; attempt to bribe a wit- ness (State V. Taylor, 44 La. Ann. 967, 11 So. 576) ; breaking into a building used in part as a post office (United States v. Williams, 57 Fed. 201) ; compounding a felony (Watt v. State, 97 Ala. 72, 11 So. 901); em- bezzlement (State V. Trolson, 21 Nev. 419, 32 Pac. 930) ; an information disturbance of the peace (State v. Ramsey,- 52 Mo. App. 668) ; an in- dictment of a county clerk for failure to publish a report (Moose v. State, 49 Ark. 499, 5 S. W. 885) ; of a parent for failure to support a child (State V. Kerby, 110 N. C. 558, 14 S. E. 856) ; for intercourse with an unmar- ried female under a certain age (Hol- tou V. State, 28 Fla. 303, 9 So. 716) ; for keeping a disorderly liquor shop (State V. Hoard, 123 Ind. 34, 23 N. E. 972 ) ; for keeping a house of ill-fame (State V. Osgood, 85 Me. 288, 27 Atl. 154) ; for laboring on Sunday (Clear- ly V. State, 56 Ark. 124, 19 S. W. 313) ; mayhem (United States v. Gunther, 5 Dak. 234, 38 N. W. 79; Kitchens v. State, 80 Ga. 810, 7 S. E. 209) ; murder (People v. Murray, 10 Cal. 309) ; practicing medicine with- out a license (Benham v. State, 116 Ind. 112, 18 N. E. 454); profane swearing (Bodenhamer v. State, 60 Ark. 10, 28 S. W. 507); seduction (State V. Framness, 48 Minn. 490, 45 N. W. 1098) ; taking excessive com- pensation in collection of pension claim (United States v. Reynolds, 48 Fed. 215) ; an information for vag- 27 417 § 371 Chakging the Offense — Statutoey Offenses. substantially in the words of the act.^ And in a recent case in Florida the doctrine is affirmed that an indictment which is in language substantially the same, or of the same import, as that required by the statute is sufficient where it fully acquaints the accused with the " nature and cause " of the accusation against him as required by the constitution.^ And the rule is stated in words of similar import in other decisions.* In a case in New York rancy (State v. Preston, 4 Ida. 215, 38 Pac. 694) ; and indictments for violating intoxicating liquor laws (Cost V. State, 96 Ala. 60, 11 So. 436; Skinner v. State, 120 Ind. 127, 22 N. E. 115; State v. Meagher, 49 Mo. App. 571). It is a general rale that in in- dictments for offenses created by stat- ute, it is sufBcient to follow the exact words of the statute in describing the offense. State v. West, 10 Tex. 553. The general mle as to statn- tory offenses is that, if the statute so far individuates the crime, the of- fender has proper notice from the terms of the particular offense in- tended to be covered, it is sufficient to charge it in the language of the stat- ute. State V. Kendig, 133 Iowa, 164, 110 N. W. 463. Per Deemeb, J., cit- ing State V. Johnson, 114 Iowa, 430, 87 N. W. 279; State v. Beebe, 115 Iowa, 128, 88 N. W. 358; State v. Bangness, 106 Iowa, 107, 76 N. W. 508; State v. Dankwardt, 107 Iowa, 704, 77 N. W. 495. An indictment for forgery in the first degree in New York which in its several counts closely conforms to the language of the statute defining the crime of forgery in the first de- gree is good. People v. Alderdice, 120 App. Div. (N. Y.) 368, citing People V. Herlihy, 66 App. Div. (N. Y.) 540, 73 N. Y. Supp. 236 ; People v. Adams, 85 App. Div. (N. Y.) 390, 83 N. Y. Supp. 481, 176 N. Y. 351, 66 N. E. 636; People v. Williams, 149 N. Y. 1, 43 N. E. 407. Indictment for manslaughter by negligent use of machinery, under New York Penal Code, | 195. As to sufficiency of, see People v. Smith, 56 Misc. R. (N. Y.) 1. The indictment in this case was against one as vice-president and general manager of a railroad for culpable negligence under above act for the running of a railroad train at a dan- gerous rate of speed around a curve by reason of which the train left the rails and was wrecked, causing the death of a passenger. 2. State V. Van Wye, 136 Mo. 227, 37 S. W. 938, 58 Am. St. Rep. 627. Per GrANTT, J. 3. Stutts V. State (Fla. 1906), 42 So. 51. 4. Where a statute creates an of- fense and describes its constituents, or the facts that constitute the of- fense, then it will be sufficient to charge the offense in the language of the act. Batre v. State, 18 Ala. 119. Where a statute is introductive of 418 Chakging the Offense — ^Statdtoky Offenses. § 371 it is said in this coimection that " the general rule is well settled, that an indictment for a statutory offense, and especially when the offense is a naisdemeanor, charging the facts constituting the crime, in the words of the statute, and containing averments as to time, place, person, and other circumstances to identify the par- ticular transaction, is good as a pleading and justifies putting the defendant on trial."® So it is said in a recent case in Illinois : " Every indictment found by a grand jury shall be deemed suffi- ciently technical and correct which alleges and charges the offense in the language of the statute creating the offense, or so charges the offense that it may be understood by the jury. This has been so frequently announced by this court that it is almost unnecessary to cite authorities."® In the application of the general rule that in. an indictment or information it is sufficient to charge the offense in the words of the statute it is decided that where the defendant a new offense, and prescribes its con- stituents without reference to any- thing else — in an indictment founded upon it, it is sufficient to describe the offense in the term of the act. State V. Duncan, 9 Port. (Ala.) 260. Where a statute embraces all the ingredients of the offense intended to be punished, and the language used describes such offense with legal cer- tainty, an indictment or complaint may charge the offense in the words of the statute. Commonwealth v. Malloy, 119 Mass. 347. Where a statute states the elements of a crime, it is generally sufficient in an information or indictment to de- scribe such crime in the language of the statute. Cordson v. State (Neb. 1906), 109 N. W. 764, citing Leiaen- berg V. State, 60 Neb. 628, 84 N. W. 6; Chapman v. State, 61 Neb. 888, 86 N. W. 907; Wagner v. State, 43 Neb. 1, 61 N. W. 85; State v. Lauver. 26 Neb. 757, 42 N. W. 762; State v. Davis, 70 Mo. 467. We are of the opinion that where the offense charged is purely statu- tory, having no relation to the com- mon law, it is, as a general rule, suf- ficient in the indictment to charge the defendant with the act coming fully within the statutory descrip- tion, in the substantial words of the statute without any further expan- sion of the matter. State v. Wil- liamson, 22 Utah, 248, 62 Pac. 1022, 83 Am. St. Rep. 780. Per MiNOB. J. 5. People V. West, 106 N. Y. 293, 295. Per Andbews, J., citing Whar- ton's Cr. Law, § 364; People v. Tay- lor, 3 Den. (N. Y.) 91; see also People V. Webster, 17 Misc. (N. Y.) 410, 413, 40 N. Y. Supp. 1135, quot- ing the above language. 6. Bolen v. People, 184 111. 338, 56 N. E. 408. Per Philups, J., citing Graham v. People, 181 HI. 477, 55 N. E. 179. 419 § 372 Charging the Offense — Statutoet Offenses. insists upon greater particularity, he must show that the case falls within some exception to the general ruleJ §i 372. Qualification of general rule as to charging offense in words of statute. — Although it is said that there can be no safer rule for the pleader to follow, than that he should set forth the offense in the language of the statute,* yet stating an offense in the words of the statute is not sufficient unless every fact necessary to constitute the offense is charged or necessarily implied by fol- lowing the words used therein.® In those cases where the language of a statute creating a new offense does not describe the act or acts constituting such offense the pleader is bound to set them forth specifically.^" And it is a general rule that where the stat- ute does not sufficiently define or describe the offense created therein it is essential that the indictment thereunder should set forth the acts constituting the offense so that the accused may be informed of the nature of the accusation against him.^^ So it 7. Whiting v. State, 14 Conn. 487, 36 Am. Eep. 499 ; Parkinson v. State, 14 Md. 184, 74 Am. Dec. 522 ; Riley v. State, 43 Miss. 397; United States v. Henry, 26 Fed. Cas. No. 15,350. It is a well settled general rule that, in an indictment for an of- fense created by statute, it is suffi- cient to describe the offense in the words of the statute, and if, in any ease, the defendant insists upon a greater particularity, it is for him to show that from the obvious intention of the legislature, or the known prin- ciples of the law, the case falls within some exception to such general rule. But few exceptions to this rule are recognized. Lemon v. State, 19 Ark. 171. Per Hemlt, J. Where the offense created by stat- ute is described in the words of the statute, and the words were sufficient for an intelligent verdict and judg- ment, the prisoner must show that the other omitted averments are nec- essary to insure a fair trial or rea- sonable protection against further prosecution. State v. Lockbaum, 38 Conn. 400. 8. Smith V. State, 34 Texas, 612. 9. Commonwealth v. Stout, 7 B. Mon. (Ky.) 247. 10. Johnson v. People, 113 111. 99. 11. XTnited States. — ^United States V. Beatty, 60 Fed. 740; United States v. Warden, 49 Fed. 914; United States V. Trumbull, 46 Fed. 755; United States v. Grimm, 45 Fed. 558. Alabama. — May v. State, 85 Ala. 14, 5 So. 14; Anthony v. State, 29 Ala. 27. Arkaiisas.^State v. Graham, 38 Ark. 519. 420 Chaeging the Offense — Statutory Offenses. § 372 has been declared by the United States Supreme Court that in an indictment upon a statute, it is not sufficient to set forth the offense in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense in- tended to be punished; and the fact that the statute in question, read in the light of the common law, and of other statutes on the like matter, enables the court to infer the intent of the legisla- ture, does not dispense with the necessity of alleging in the indict- ment all the facts necessary to bring the case without that intent.^^ This general rule is also affirmed in numerous other decisions in California. — People v. Neil, 91 Cal. 465, 27 Pac. 760. Connecticat. — State v. Jackson, 39 Conn. 229. Florida. — Cook v. State, 25 Fla. 698, 6 So. 451. Georgia. — Sanders v. State, 86 Ga. 717, 12 S. E. 1058. Indiana. — Stropea v. State, 120 Ind. 562, 22 N. E. 773; Bowles v. State, 13 Ind. 427. Kentucky. — Commonwealth v. Cook, 52 Ky. 149; Commonwealth v. Ward, 13 Ky. Law Rep. 422, 17 S. W. 283. Maine. — State v. Doran, 99 Me. 329, 59 Atl. 440; State v. Symonds, 57 Maine, 148. MassacIinsettB. — TuUy v. Com- monwealth, 4 Mete. (Mass.) 357. Minnesota. — State v. Farrington, 59 Minn. 147, 60 N. W. 1088, 28 L. K. A. 395. Mississippi. — Sullivan v. State, 47 Miss. 346, 7 So. 275; Kliffield v. State, 5 Miss. 304. Missouri. — State v. Kueger, 134 Mo. 262, 35 S. W. 604; State v. Brown, 8 Mo. 210. New York. — People v. Kane, 61 N. Y. Supp. 632, 14 N. Y. Cr. E. 316; Enright v. People, 21 How. Prac. 383; People v. Taylor, 3 Den. 91; People V. Wilber, 4 Park. Cr. R. 19. North Carolina. — State v. Howe, 100 N. C. 499, 5 S. E. 671, State v. Credle, 91 N. C. 640. Okio. — Lamberton v. State, 11 Ohio, 282. Oregon. — State v. Lee, 17 Oreg. 488, 21 Pac. 455; State v. Packard, 4 Oreg. 157. Pennsylvania. — Commonwealth v. Fohuestaek, 15 Pa. Co. Ct. R. 598, 4 Pa. Dist. R. 297. Tennessee. — Cornell v. State, 66 Tenn. 520. Vermont. — State v. Fiske, 66 Vt. 434, 29 Atl. 633; State v. Higgins, 53 Vt. 191. West Virginia. — State v. Mit- chell, 47 W. Va. 789, 35 S. E. 845. 12. United States v. Carll, 105 U. S. 611, Justice Geat, citing United States V. Cruikshank, 92 U. S. 542; United States v. Simmons, 96 U. S. 360; Commonwealth v. Clifford, 8 Cush. (Mass.) 215; Commonwealth v. Bean, 14 Gray (Mass.), 52; Com- monwealth V. Filburn, 119 Mass. 294. 421 § 372 Chaeoinq the Offense — Statutoky Offenses. the Federal and State courts.^® And in an early case in the United States Supreme Court, it is said by Justice Story in this connection : " In general, it may be said, that it is sufficient cer- tainty in an indictment to allege the offense in the very terms of the statute. We say, in general, for there are doubtless cases where more particularity is required, either from the obvious intention of the legislature, or from the application of known principles of law. At the common law, in certain descriptions of offenses, and especially of capital offenses, great nicety and par- ticularity are often necessary. The rules which regulate this branch of pleading were sometimes founded in considerations which no longer exist either in our own or in English jurispru- dence ; but a rule being once established, it still prevails, although if the case were new, it might not now be incorporated into the law. So, again in certain classes of statutes the rule of very strict certainty has sometimes been applied where the common law furnished a close and appropriate analogy. Such are the cases of indictments for false pretences, and sending threatening letters, where the pretence and the letters are required to be set 13. United States. — In an indict- ■ by statute, an indictment describing ment upon a, statute while the Ian- the offense in the language of the guage of the statute may be used in statute, or in words conveying the the general description of an offense, same meaning, is good, this is npt it should be accompanied with such a sufficient, if such indictment fails to statement of tlie facts and circum- allege the fact, in the doing or not stances as will inform the accused of doing of which the offense consists, the specific offense with which he is Grattan v. State, 71 Ala. 344. charged. United States v. Hess, 124 " In framing an indictment upon a U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. statute creating an offense, it is not 516, citing States v. Simmons, 96 U. always enough to charge the offense S. 360, 24 L. Ed. 819 ; United States in the language of the act, for such a V. Cruikshank, 92 U. S. 542, 23 L. charge may not allege the fact or ^°- °°°- facts which constitute the offense. See, also, Evans v. United States, ^hi^h jnuet always be done, whether 153 U. S. 584, 14 Sup. Ct. 934, 939, t^e offense be created by statute, or 38 L. Ed. 830; United States v. Hess, whether it existed at the common ./,' „_., ,, , , 122. Per Dabgan, J., citing Turnip- Alabama. — While the general rule , „, , „ ., „„. a t ^ . ,, . , ». . X , s^ed V. State, 6 Ala. 664; State v. IS, that where a new offense 18 created _ . t» 1 ,»,,.,« ,^i. x Brown, 4 Port. (Ala.) 413; State v. 422 Chaeging the Offense — Statutoet Offenses. § 372 forth from the close analogy to mdictments for perjury and forgery. Courts of law have thought such certainty not unrea- sonable or inconvenient, and calculated to put the plea of autre fois acquit, or convict, as well as of general defence at the trial, fairly within the power of the prisoner. But these instances are by no means considered as leading to the establishment of any general rule. On the contrary, the course has been to leave every class of cases to be decided very much upon its own peculiar cir- cumstances. Thus in cases of conspiracy, it has never been held necessary to set forth the overt acts or means, though these might materially assist the prisoner's defence. So, in cases of solicita- tion to commit crimes, it has been held sufficient to state the act of solicitation, without any averment of the special means. And in endeavors to commit a revolt, which is by statute in England made a capital offence, it has always been deemed sufficient to al- lege the offence in the words of the statute, without setting forth any particulars of the manner or the means. These cases ap- proach very near to the present ; and if any, by way of precedent, ought to govern it, they well may govern it. The case of treason Worrell, 12 Ala. 732; Williams v. fines the crimes generally without State, 15 Ala. 260. naming the particular acts constitut- Arkonsas. — ^It is sufficient, as a ing it it is necessary in charging the general rule, to charge a statutory ofl'ense to set out the acts done. Ma- ofl'ense in the words of the statute; lone v. State, 14 Ind. 219. but when a more particular state- Kentncky. — An indictment in the ment of the facts is necessary to set words of a statute is not always suf- it forth with requisite certainty they ficient. Whether suflScient or not, de- must be averred. State v. Graham, pends upon the manner of stating the 38 Ark. 519. oifense in the statute. If every fact niinois. — It is only when the stat- necessary to constitute the offense is ute itself does not define the nature charged or necessarily implied by fol- of the offense sufficiently to notify lowing the language of the statute, the defendants of the crime with the indictment in the words of the which they are charged, that the alle- statute, is undoubtedly sufficient gation in the words of the statute will otherwise it is not. Commonwealth be held insufficient. Gallagher v. v. Stout, 46 Ky. 247, per Judge People, 211 111. 158, 166, 71 N. B. Simpson, cited with approval in 842. State v. Campbell, 29 Texas, 44, 46. India n a . — Where the statute de- Maine. — ^If a statute creating an 423 § 372 Chakging the Offense — Statutoey Offenses. stands upon a peculiar ground ; there the overt acts must, by stat- ute, be specially laid in the indictment and must be proved as laid. The very act and mode of the act must, therefore, be laid as it is intended to be proved."^* So a statute may be so inac- curately penned, that its language does not express the whole meaning the legislature had, and by construction, its sense is ex- tended beyond its words in which case, the indictment must con- tain such averments of other facts, not expressly mentioned in the statute, as will bring the case within the true meaning of offense fails to set out the facts con- stituting it suflfieiently to apprise the accused of the precise nature of the charge against him, a more particu- lar statement of the facts will be re- quired in the indictments. State v. Doran, 99 Maine, 329, 54 Atl. 440, 105 Am. St. Eep. 278, per White- house, J. Mississippi. — Though, as a gen- eral rule, it is sufficient to charge a statutory offense in the words of the statute, yet this rule does not apply where there are, in the language of the statute, no sufficient words to de- fine any offense. Harrington v. State, 54 Miss. 490, 494. Per Chalmebs, J. Missouri. — The general rule only applies where all the facts which con- stitute the offense are set forth in a statute. State v. Krueger, 134 Mo. 262, 35 S. W. 604, citing State v. Hayward, 83 Mo. 304; State v. Davis, 70 Mo. 467; State v. Kesslering, 12 Mo. 565; State v. Peirce, 43 N. H. 273. Texas. — As a general rule, it is sufficiently certain to describe an of- fense in an indictment in the lan- guage of the act creating the offense; but there are cases where more par- ticularity is required, either from the obvious intention of the legislature, or from the application of known principles of law. Portwood v. State, 29 Tex. 47, 94 Am. Dec. 258. Per Donley, J. In another case in Texas it is said that there are many excep- tions to the general rule: "As, for instance, ' if extrinsic facts be neces- sary to bring the act within the stat- ute they must be averred.' Burch v. State, 1 Tex. 608; West v. State, 10 Tex. 553; Brewer v. State, 5 Tex. App. 248; Vaughn v. State, 9 Tex. App. 563. And if a penalty be an- nounced for the commission or omis- sion of an act under certain circum- stances, the indictment must charge the commission or omission under the circumstances specified. State v. Wupperman, 13 Tex. 33. And if a statute creates an offense composed of different constituents, each constitu- ent being in itself an offense, the in- dictment must specify the particular constituents relied on, with accuracy." Kerry v. Slate, 17 Tex. App. 178, 50 Am. Rep. 122. Per White, J., citing State V. Williams, 14 Tex. 98. 14. United States v. Gooding, 25 U. S. 460, 475, 6 L. Ed. 693, per Justice Story. 424 Chaeging the Offense — Statutoet Offenses. § 373 the statute; that is, the indictment must contain such words as ought to have been used in the statute, if the legislature had cor- rectly expressed therein their precise meaning.^^ § 373. Same subject continued — Where statute employs general or comprehensive words. — Where the statute employs a general term, very broad in its comprehension, to designate and describe the objects to be protected by it, it is necessary in such case to specify the particular species or class in respect to which the offence is charged.-'® It is not sufficient to charge an offense in the words of the statute creating it where such words are so broad and general as to include therein acts which clearly it was not the intention of the legislature to include.^'^ So it is said that "the principal exception to this general rule respecting statutory of- fenses, is where the words of the statute may, by their generality, embrace cases falling within its literal terms which are not within its meaning and spirit." ^* So where by statute it is an indictable offense to aid or assist a prisoner in escaping and by the literal construction of the statute it would include any person, however innocent, who might do an act the effect of which would be to aid 15. State V. Stanton, 23 N. C. 424. bring the matter within the meaning 16. State V. Credle, 91 N. C. 640, of it. State v. West, 10 Tex. 553. per Meerimon, J. See also Territory Per Wheeler, J., citing Archibald's V. Hubbell (N. M. 1906), 86 Pac. 747. C. PI. 46, 47; Bush v. Republic, 1 There is an exception in re- Tex. 455; Burch v. Republic, 1 Tex. spect to the rule that an indictment 608. is sufficient which follows the exact The general rule has no appli- words of the statute in those cases cation where the statute creates an where an indictment uses generic offense by generic terms. In such terms, in which case it is necessary case an information or indictment fol- to state the species, according to the lowing the statute would be defective, truth of the case; and where the sub- The facts constituting the particular jeet of the indictment cannot be offense must always be pleaded. State brought within the meaning of the v. Seeley, 65 Kan. 185, 69 Pac. 163; statute without the aid of extrinsic per Greene, J. evidence, it is necessary besides charg- 17. Schmidt v. State, 78 Ind. 41; ing the offense in the words of the State v. Goulding, 44 N. H. 284. statute, to aver such facts and cir- 18. State v. Breice, 27 Conn. 319- oumstances as may be necessary to Per Stores, J. 425 § 374 Chahging the Offense — Statutoey Offenses. an escape, a charging of the offense in the words of the statute is not sufficient and a further description is necessary.*® §i 374. Offense must be brought within words of statute. — The general rule that nothing material is to be taken by intend- ment applies to the charging of a statutory offense,^" and it is essential to the sufficiency of an indictment or information there- for that in charging such offense the defendant should be brought within all the material words of the statute descriptive thereof.** 19. King V. State, 42 Fla. 260, 28 So. 206. 20. Humphreys v. State, 17 Fla. 386; Kearney v. State, 48 Md. 16; People V. Albow, 140 N. Y. 130, 35 N. E. 438, 55 N. Y. St. E. 253, rev'g 71 Hun, 123, 24 N. Y. Supp. 519, 53 N. Y. St. R. 869; Kit v. State, 11 Humph. (Tenn.) 167. 21. United States. — Re Greene, 52 Fed. 104; United States v. Green- hut, 50 Fed. 469; United States v. famith, 45 Fed. 561. Alabama. — Tennyson v. State, 97 Ala. 78, 12 So. 391; Copeland v. State, 97 Ala. 30, 12 So. 181; Giles v. State, 89 Ala. 50, 8 So. 121; Under- derwood v. State, 19 Ala. 532. California. — People v. Eppinger, 105 Cal, 36, 38 Pac. 538. Dakota. — United States v. Car- penter, 6 Dak. 294. Florida. — Humphreys v. State, 17 J la. 386. Georgia. — ^Kiser v. State, 89 Ga. 421, 15 S. E. 495; McDuffie v. State, 87 Ga. 687, 13 S. E. 586. Illinois. — Kincaid v. People, 139 111. 213, 28 N. E. 1060. Indiana. — Blough v. State, 121 Ind. 355, 23 N. E. 153. Kentucky. — Waller v. Common- wealth, 97 Ky. 509, 30 S. W. 1023; Commonwealth v. Bell, 17 Ky. Law Rep. 277, 30 S. W. 997. Iionisiana. — State v. Langston, 45 La. Ann. 1182, 14 So. 137; State v. Johnson, 42 La. Ann. 559, 7 So. 588. Maine. — State v. Dunlap, 81 Me. 389, 17 Atl. 313. Maryland. — ^Kearney v. State, 48 Md. 16. Michigan. — People v. Cronin, 80 Mich. 646, 45 N. W. 479. Mississippi. — ^Newman v. State, 69 Miss. 303, 10 So. 580. Missouri. — State v. Rosenblatt, 185 Mo. 114, 83 S. W. 975; State v. Sills, 56 Mo. App. 408; State t. Baskett, 52 Mo. App. 389; State v. Bragg, 51 Mo. App. 334; State t. Greenhogen, 36 Mo. App. 24; State v. Ryan, 30 Mo. App. 159. New Mexico. — Territory v. Ar- mijo, 7 N. M. 571, 37 Pac. 1117. NeTV York, — People v. Lowndes, 130 N. Y. 455, 29 N. E. 751, 42 N. Y. St. R. 360; People v. Olmsted, 74 Hun, 323, 26 N. Y. Supp. 818, 56 N. Y. St. R. 311. Oregon. — State v. Lawrence, 20 Oreg. 236, 25 Pac. 638. Pennsylvania. — Commonwealth t. Clark, 2 Ashm. 105; Commonwealth 426 Chakging the Offense — Statutoey Offenses. § 374 Where the crime is statutory, it is essential that the indictment should charge with certainty and precision aU the facts necessary V. Momingstar, 12 Pa. Co. Ct. K. 34, 2 Pa. Dist. R. 41. South Carolina. — State v. Wil- liams, 32 S. C. 123, 10 S. E. 876. Tennessee. — Kit v. State, 11 Humph. 167. Texas. — ^Patton v. State, 31 Tex. App. 20, 19 S. W. 252; Lamar v. State, 30 Tex. App. 693, 18 S. W. 788; Blackwell v. State, 30 Tex. App. 672, 18 S. W. 676. 'Washing:ton. — State v. Brown, 7 Wash. 10, 34 Pac. 132. It is a -well settled mie of crim- inal pleading that an indictment for an offense created by statute must de- scribe the offense in the words of the statute, or in words of similar import. Conner v. Commonwealth, 13 Bush (Ky.), 714. Per Coopeb, J. " The general rnle is that the charge must be laid in the indictment so as to bring the case within the de- scription of the offense as given in the statute, alleging distinctly all the essential requisites that constitute it. Nothing is to be left to implication or intendment." State v. Eldridge. 12 Ark. 608. Per Johnson, J. The statnlte should be followed. Ohio. — Poage v. State, 3 Ohio St. 229. Pennsylvania. — Hamilton v. Com- monwealth, 3 Pa. 142; Updegraff v. Commonwealth, 6 Serg. & R. (Pa.) 5. South Carolina. — State v. Fos- ter, 3 McC. L. (S. C.) 442; State v. (yBannon, 1 Bailey (S. C.),664; State V. Casados, 1 Nott. & M. (S. C.) 91. Texas. — Drummond v. Republic, 2 Tex. 156. Virginia. — ^Howell v. Common- wealth, 5 Gratt. (Va.) 664. This is not, however, to be con- strued as meaning that the exact words of the statute must be used. See § 381 herein. In New York it is held that in framing an indictment on a statute all the circumstances which constitute the definition of the crime in the stat- ute, so as to bring the accused pre- cisely within it, must be stated, but no other description of the manner in which the offense was committed is necessary than that contained in the statute. People v. Williams, 92 Hun (N. Y.), 354, 71 N. Y. St. R. 541, affd. 149 N. Y. 1, citing People v. Phelps, 72 N. Y. 334, 349; Eckhardt V. People, 83 N. Y. 462; People v. West, 106 N. Y. 293 ; People v. Wel- don. 111 N. Y. 569, 574; People v. King, 110 N. Y. 418; People v. Rock- hill, 74 Hun (N. Y.), 241; People v. Flaherty, 79 N. Y. 48; United States V. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516. And in an earlier case in this State it is held that an indictment upon a statute must state all such facts and circumstances as constitute the stat- ute offense, so as to bring the party indicted closely within the provisions of the statute. If the statute is con- fined to certain classes of persons, or to acts done at some particular time or place, the indictment must show that the party indicted, and the time and place when the alleged criminal 427 § 374 Chaeging the Offense — Statutoey Offenses. to constitute the offense and it must conform to the language or state all the facts which bring it within the terms of the statute. acts were perpetrated, were such as to bring the supposed offender directly within the statute. People v. Allen, 6 Den. (N. Y.) 76, 79. Per Beaeds- LEY, J. Where an essential element of tihe statntory offense of planting oysters is that it be done on account or for the benefit of the person doing it, or for the benefit of a non-resident employer, the failure to charge that fact in an indictment for such ofl'ense is a substantial omission, rendering the indictment fatally defective. People V. Lowndes, 130 N. Y. 455, 42 N. Y. St. E. 360, rev'g 55 Hun, 469, 8 N. Y. Supp. 908. Omission to pnnisli medical aid. — ^An indictment under the New York Pen. Code, § 193, subd. 3, al- leging that the " act, procurement or culpable negligence " was the failure of the defendants to supply and pro- vide the deceased with " proper and necessary medicine, medical care and attention " is subject to demurrer as not showing what particular act or omission is relied upon as constitut- ing the crime. People v. Quimby, 113 App. Div. (N. Y.) 793, 99 N. Y. Supp. 330. But an indictment under i 288 of the Pen. Code in this State which charges that the defendant wilfully, maliciously and unlawfully omitted, without lawful excuse, to perform a duty imposed upon him by law, to furnish medical attendance for his minor child, said minor being ill and suffering from catarrhal pnue- monia, and that he wilfully, ma- liciously and unlawfully neglected and refused to allow said minor to be attended and provided for by a regular licensed and practicing phy- sician, is not bad because it fails to allege that the case was one in which a regular licensed and practicing physician should have been called. People V. Pierson, 176 N. Y. 201, 68 N. E. 243, 63 L. R. A. 187, 98 Am. St. Eep. 666. Indictment under Elklns Act. (Act. Feb. 19, 1903, c. 708, 32 Stat. 847, U. S. Comp. St. Supp. 1905, c. 599.) This act was passed for the purpose of prohibiting rebates, con- cessions or discriminations against the regular charges for the transpor- tation of property and provided that " every person or corporation, whether carrier or shipper, who shall know- ingly offer, grant, or give, or solicit, accept or receive any such rebates, concessions, or discrimination shall be deemed guilty of a misdemeanor " and subject to punishment therefor. It is decided that this act was intended, among other things, to cover the cases where rebates are not paid directly to the shipper, and therefore an indict- ment for this offense is sufiicient though it does not allege that the re- bate was given to the shipper but charges that it was given to a certain designated person who is alleged to be the authorized agent of the shipper and vested by the shipper with the sole and exclusive power and author- ity to determine over what lines of common carriers shipments shall fce made by the shipper. The court said as to this question : " The mere fact 428 Chaeging the Offense — Stattjtokt Offenses. § 374 It must on its face by plain allegations, not by inference merely, charge some act charged by the statute as constituting the of- that a rebate is not paid to the shipper, but is paid to somebody else is quite immaterial under the Elkins Act. If it is in fact a rebate, conces- sion or discrimination whereby the property is transported at a less rate than that named in the tariff, the un- lawful act is committed. If upon the trial of this ease it should appear from all the evidence that the pay- ments charged were nothing but a payment to Palmer as a commission for obtaining business for the rail- road, they would not be rebates within the meaning of the act. But the indictment alleges that they were.'' United States v. Delaware, L. & W. K. Co., 152 Fed. 269. Per Holt, J. Again an indictment for violation of this law need not allege that the pub- lished rate is a reasonable one nor set out in full the carrier's tariffs. United States v. Standard Oil Co., 148 Fed. 719. The giving or receiving of the rebate or concession is the essence of the offense and the device by which the concession or transportation is brought about is not an essential ele- ment of the crime and need not be pleaded in the indictment. Armour Packing Co. v. United States, 153 Fed. 1 ( C. C. A. ) . And an information which described the defendant as the Mutual Transit Company, a " common carrier by water route to the town of West Superior, in the State of Wis- consin," but which did not allege that the Mutual Transit Company, being a water carrier, was " used under a common control, management, or ar- rangement for a continuous carriage," etc., was held sufficient where it set forth facts which showed that the water carrier was used under a common arrangement with the railroads, the other common carriers in the trans- portation of property. United States V. Camden Iron Works, 150 Fed. 214. But in a recent case in the United States Circuit Court it is held in de- termining the sufficiency of an indict- ment under this act, that the clause prohibiting the giving of rebates whereby property in interstate transit " shall by any device whatever be transported at a less rate than that named in the tariffs published and filed by such carrier " has reference only to the carrier proceeded against and a demurrer was in this case sus- tained where it did not appear from the indictment that the carrier filed or published the violated tariff. United States v. New York Central & Hudson River Kailroad, 157 Fed. 293. See further as to indictments under this act §§ 382, 391 herein. TTsuig mail for lottery pur- poses. — ^An indictment for sending through the mails newspapers con- taining an advertisement of a lottery or gift enterprise, framed under U. S. Pen. St., § 3894 (U. S. Comp. St. 1901, p. 2659), should allege the ex- istence of such a device or scheme to bring the offense within the statute. United States v. Irvine, 156 Fed. 376. Indictment under Sherman Anti-Tmst law (Act July 2, 1890, ch. 647, 26 Stat. 209; U. S. Comp. St. 1901, p. 3200) held to sufficiently 429 § 375 CiiAKGiNG THE Okfense — Statutoey Offenses. fense.^* The indictment should, in all cases, employ so many of the substantial words of the statute as will enable the court to see on what statute it is founded, and all other words which are essential to a complete description of the offense or such words which are equivalent, or more than equivalent to those used in the statute, provided they include the full signification of the statu- tory words, but not otherwise.^* So it is said that no principle of criminal pleading is better settled than that an indictment for a mere statutory offense must be proved upon the statute and that this fact must distinctly appear upon the face of the indictment itself. That it shall so appear the pleader must either charge the offense in the language of the act, or specifically set forth the facts constituting the same.^* And in another case it is said to be a well settled, general principle of criminal law that in an indictment for an offense created by statute, the offense must be described in the words of the statute, and when the words thereof are descriptive of the offense, it is necessary that the de- fendant should be brought within all the material words of the statute.25 § 375. Same subject — Illustration of rule. — ^When the in- tention with which an act is done is an ingredient of the statu- tory crime, that intention must be alleged, and a word that con- veys the idea of a physical effort to do the act, instead of the intent with which the act was done, is insufficient.'^® And where an information, under a statute making it a criminal offense to " wilfully " disturb any congregation met for religious worship, omitted to charge that the act of the defendants was " wilfully " charge the eomhination and conspir- 248, 62 Pac. 1022, 83 Am. St. Rep. acy. See United States v. MacAn- 780; per Minor, J. drews & Forbes Co., 149 Fed. 823. 24. Johnson v. People, 113 111. 99. ZZ. State V. Meysenburg, 171 Mo. Per Mulkey, J. 1, 71 S. W. 229, per Gantt, J., citing 25. State v. Elbom, 27 Md. 488, State V. Kesslering, 12 Mo. 565; State 488. Per Chain, J. V. Davis, 70 Mo. 467, 5 Cyclopedia of 26. State v. Marshall, 14 Ala. 411. Law & Procedure, 1042. See §§ 326, 327 herein as to charging 23. State v. Williamson, 22 Utah, intent. 430 Chaegistg the Offense — Statutory Offenses. § 375 done, it was held that it was fatally defective and that the omis- sion was not supplied by the conclusion " contrary to statute."*'^ So an indictment under the Penal Code in New York for the crime of keeping a room for recording bets and selling pools upon the results of horse races, is defective where it fails to allege that the defendants kept and occupied it with books, papers, appara- tus or paraphernaKa for the purpose of recording bets or wagers, since the statute makes the presence of the books or apparatus an essential ingredient of the crime.^^ And where by statute it was made an offense for any "person who shall mark or brand any unmarked or unbranded horse . . . not being his own prop- erty, and withoiit the consent of the owner " and an indictment was drawn in the language of the statute, it was held that it was prop- erly quashed, for want of an averment of the ownership of the animal, or that the owner was unknown.*^ So the omission in an indictment for perjury to charge, in the language of the stat- ute, that the defendant deposed, affirmed, or declared same mat- ter to be fact, knowing the same to be false, or denied some matter to be fact knowing the same to be true, is a substantial defect and is not cured by a statute providing that " no indictment shall be quashed if any indictable offense is clearly charged therein, or if the charge be so explicitly set forth that judgment can be rendered thereon " since no indictable offense is set forth in the indictment 27. State v. Stroud, 99 Iowa, 16, ingredients, necessary to constitute 68 N. W. 450. The court said : " The that offense, do not enter into the law says it must be 'wilfully' done definition of this, and consequently It is not the oflSce of the words ' con- need not be averred and proved in trary to statute in such cases made order to authorize a conviction under and provided ' to supply averments of the statute, yet the ownership of the facts in indictments." Per GbangeE, J property does as certainly enter into 28. People v. Stedeker, 175 N. Y. ^^ constitute an ingredient in this 57, 45 N. E. 398, decided under New "f^^ ^' m that of larceny, as m -, , „ „ , „ „„, that case, so in this, the property in l^ork Pen. Code, § 351. ., „ ■„ , i, ,j J ; . ., the animal should be averred in the 29. State v. Faucett, 15 Tex. 584. true answer, if known; and, if not The court said : " The offense charged, known, it should be stated in the in- though created by statute, is in its dictment, that it was the property of nature essentially the same as the some persons to the jurors unknown.'' crime of larceny; and though all the Per Wheeleb, J. 431 § 376 Chaeging the Offense — Statutoey Offenses. according to statute.^" And it is declared that no allegation of un- lawfulness, nor being against the statute, nor in collusion, will make good the indictment, if it does not bring the acts prohibited or commanded, in the doing or not doing of which the offense consists, within the material words of the statute.^ ^ § 376. Must apprise defendant with reasonable certainty of natxire of .accusation. — The general rule as to charging a purely statutory offense is subject to the qualification, declared to be fundamental in the law of procedure, that the accused must be apprised by the indictment, with reasonable certainty of the nature of the accusation against him, so that he may prepare his defense and plead the judgment as a bar to a subsequent prosecution for the same offense.*^ When the statute creates the offense and de- fines it, it is sufficient if the indictment uses the words of the statute, unless the words be indefinite and vague, ambiguous or general, in which case the indictment must so particularize the act ■complained of that the party charged shall be in no doubt of the offense alleged against him. The certainty required is that which will enable him to plead the verdict in bar of any future action.^^ And in a recent case in the United States Circuit Court of Ap- peals it is said that " where a crime is a statutory one, the indict- ment must set forth with clearness and certainty every essential element of which it is composed. It must portray the facts which the pleader claims constitute the alleged transgression so distinctly as to advise the accused of the charge which he has to meet and 30. State v. Morse, 1 G. Greene New Hampsliire. — State v. Peirce, (Iowa), 503. 43 N. H. 273. 31. State V. Williamson, 22 Utah, jjew York. — People v. Taylor, 3 248, 62 Pac. 1022, 83 Am. St. Eep. Uen. 91. 780 ; per Minor, J. Texas.-Portwood v. State, 29 Tex. 32. United States. — United States V. Simmons, 96 U. S. 360, 24 L. Ed 819 47, 94 Am. Dec. 258. See §§ 250, 251, herein as to charg- .' „, Di i. ^c * 1, ing offense with reasonable certainty. Arkansas. — Glass v. State, 45 Ark. ^ ■' 173. 33. United States v. Crosby, 25 Kentncky. — Commonwealth v. Fed. Cas. No. 14,893, 4 Cranch C. C. Cook, 13 B. Mon. 149. 517. Per Bond, J. 432 Chaeging the Offense — Statutoky Offenses. § 377 to give him a fair opportunity to prepare his defense, so particu- larly as to enable him to avail himself of a conviction or an ac- quittal in defense of another prosecution for the same offense, and so clearly that the court may be able to determine whether or not the facts there stated are sufficient to support a conviction."^* So it has been declared that in proceeding under a statute of a highly penal character the indictment should be construed strictly and that unless it state expressly every fact necessary to consti- tute the offense, and v^ith such certaiaty as to show distinctly what offense has been committed, and what penalty has been in- curred, it is bad, and no judgment can be rendered on it against the defendant.'" § 377. Same subject — Sufficient if words used make charge clear — Surplusage. — ^While an absolute defect will not be cured, or a positive fact supplied by presumption, yet, when the difficulty arises from the inartificial use of language, and it is evident the statute has been complied with, it is held that liberality will be indulged in support of the record.*® " Courts are especially 34. Armour Packing Co. v. United 35. Commonwealtli v. Walters, 6 States, 153 Fed. 1, 16. Per Sanboen, Dana (Ky.) 290. Per Mabshaix, J. J., citing Ledbetter v. United States, 36. Nichols v. State, 46 Miss. 284. 170 U. S. 606, 609, 610, 18 Sup. Ct. Sufficiency of iiidictinen.t for 774, 42 L. Ed. 1162; United States v. false swearing by president of Britten, 107 U. S. 655, 669, 670, 2 corporation in making an afSdayit, Sup. Ct. 512, 27 L. Ed. 520; United under the laws of the State, wherein States V. Carll, 105 U. S. 611, 26 L. the defendant swore that the corpora- Ed. 1135; United States v. Hess, 124 tion, the Waters Pierce Oil Com- U. S. 483, 488, 8 Sup. Ct. 571, 31 L. pany, of which he was president, 'Ed. 516; United States v. Cook, 17 was not "a party to any agreement Wall. (U.S.) 168, 174, 21 L. Ed. 538; ... or understanding with any United States v. Cruikshank, 92 U. S. other corporation ... to regulate 542, 558, 23 L. Ed. 588; United or fix the price of any article of States V. Simmons, 96 U. S. 360, 24 L. manufacture . . . and was not Ed. 819; Pettibone v. United States, then a party to " any agreement . . . 148 U. S. 197, 13 Sup. Ct. 542, 37 L. to fix or limit the amount of supply Ed. 419; Evans v. United States, 153 or quantity of any article of manu- U. S. 584, 14 Sup. Ct. 934, 38 L. Ed. facture." The indictment in this case 830; Miller v. United States, 66 C. C. was held to sufiiciently charge the A. 399, 403, 133 Fed. 337, 341. substance of the offense, the court de- 433 28 § 37Y Chaeging the Offense — Statutoey Offenses, called upon to overlook slight technical objections, to disregard popular prejudices, and to so construe statutes and adjudge causes, that the avowed objects of the legislature for the public good may be respected and enforced. To this end, an indictment in substantial compliance virith the statute upon which it is framed, should not be deemed insufiScient, however defective it may be in mere matters of form, which cannot prejudice the rights of the accused."*^ Therefore an indictment which charges the offense in the language of the statute creating it or so plaiidy that the nature of the offense may be easily understood by the jury is as a general rule regarded as sufficient.^* And in New York it is daring that " Whatever may have been the high degree of certainty re- quired in framing indictments at com- mon law, it is now well settled that refinement and technicality must yield to substantial things. The criterion for judging the sufficiency of indict- ments is whether the words employed make the charge clear to the ' com- mon understanding.' " Ex parte Pierce, 155 Fed. 663, 665. Per Adams, J. An indictment of a United States senator under § 1782, U. S. Rev. St., for receiving compensation from a corporation in respect to a matter in which the United States is interested informs the accused with reasonable certainty of the nature and cause of the accusation against him where the allegations are sufficient to enable him to prepare his defense, and in the event of an acquittal or convic- tion to plead the judgment in bar of a second prosecution against him. The court said : " The accused was not entitled to mrre, nor could he de- mand that all the special or particu- lar means employed in the commission of the offense should be more fully set out in the indictment. The words of the indictment directly and without ambiguity disclosed all the elements essential to the commission of the of- fense charged, and, therefore, within the meaning of the constitution and according to the rules of pleading, the defendant was informed of the nature and cause of the accusation against him." Burton v. United States, 202 U. S. 344, 373, 26 Sup. Ct. 344. Per Mr. Justice Haelan. Sufficient statement of offense within meaning of extradition laws. — " Let it once be conceded or determined that the substance of an offense is stated in the indictment, however inartificially it may be done, or however involved with immaterial or incompetent matters it may be, all other questions affecting the proceed- ings or the merits of the case must be relegated to the consideration and final adjudication of the courts of the demanding State." Ex parte Pierce, 155 Fed. 663. Per Adams. 37. Zumhoff v. State, 4 G. Greene (Iowa), 526, 531. Per Geeene, J. 38. Robbins v. State, 119 Ga. 570, 434 Chakging the Offense — Statutory Offenses. § 377 decided in a recent case that under the code provision defining homicide as " manslaughter, in the first degree, when committed without a design to effect death, either (1) by a person en- gaged in committing or attempting to commit, a misdemeanor affecting the person or property, either of the person killed, or of another; or (2) in the heat of passion, but in a cruel or unusual manner, or by means of a dangerous weapon,"^^ an indictment which contains no allegations that the crime was committed in the heat of passion or by means of a dangerous weapon or alleges in express terms that the defendant was engaged at the time in committing or attempting to commit a misdemeanor affecting the person who was killed sufficiently charges man- slaughter where the facts stated in the indictment show clearly that the defendant was engaged in committing either a felony or misdemeanor upon the person deceased. The court said : " One or the other of these conclusions necessarily follow from the facts stated, and it was unnecessary, therefore, to allege the conclu- sions in addition to the facts from which the conclusions are drawn."*** Again where an offense is sufficiently described in the words of the statute or by the use of equivalent words the fact that there is unnecessary or redundant matter does not 46 S. E. 834; Thomas v. State, 69 Ga. with force and arms, with his fists 747; Warriner v. People, 74 111. 346; and feet, assault, strike and kick one O'Donnell v. People, 110 111. App. 250, Stella Stacy upon her spine, abdo- a£STmed in Gallagher v. People, 211 men and side, thereby inflicting 111. 158, 71 N. E. 842; State v. Cobb, serious, grievous, and mortal wounds 113 Mo. App. 156, 87 S. W. 551. and injuries upon her, the said Stella 39. N. Y. Pen. Code, § 189. Stacy, from the effects of which said 40. People v. Stacy (N. Y. App. wounds and injuries the said Stella Div. 1907), 104 N. Y. Supp. 615. The Stacy thereafter, on the 14th day of part of the indictment charging the November, 1905, died, whereby the crime which was objected to was said Fred Stacy did commit the as follows : " The said Fred Stacy, at crime of manslaughter in the first de- the town of Malone, in the county of gree, against the form of the statute Franklin, in the State of New York, in such case made and provided, and on the 29th day of October, 1905, did against the peace of the people of the wrongfully, unlawfully, and felon- State of New York, and their dig- iously, but without design to kill, nity." 435 §§ 378, 379 Chaeging the Offense — Statutoey Offenses. vitiate an indictment or information but such matter may be rejected as surplusage.*^ § 378. Offense composed of several elements or multiplicity of acts. — Where an offense embraces a number of ele- ments it is esseential in an indictment therefor that such elements should be set out as are sufficient to advise the defendant specifically of what he is to meet.** So, it is declared that "while it is sufficient, ordinarily, to charge the offense in the language of the statute, yet when the words are not precise and are uncertain in their meaning, or imply a multiplicity of acts that may or may not constitute the offense in whole or in part, it is necessary to charge the facts that give special character or significance to the acts charged to have been done."** And where a statute creates an offense, composed of different constituents, and the same statute makes each of these constituents a distinct offense, it is neces- sary in an indictment for the offense first mentioned, that the par- ticular constituent or constituents relied on should be specified with accuracy therein.** § 379. Same subject — Rule in New York. — In New YorE it is provided by code that the indictment must contain (1) the title of the action, specifying the name of the court to which the indictment is presented, and the names of the parties; (2) a plain and concise statement of the act constituting the crime 41. Arkansas. — Moose v. State, Texas. — Johnson v. Waite, 28 Tex. 49 Ark. 499, 5 8. W. 885. App. 562, 13 S. W. 1005. Illinois.— Snell v. People, 29 111. Vermont.— State v. Switzer, 63 ^VV- 470. Vt. 604, 22 Atl. 724, 25 Am. St. Eep. Iionisiana. — State v. Desroche, 47 789_ La. Ann. 651, 17 So. 209; State v. wisconsln.-Bernhardt v. State, Tyler, 46 La. Ann. 1269, 15 So. 624. gg ^.^ gS, 51 N. W. 1009. New York. — People v. Lawrence, 137 N. Y. 517, 33 N. E. 547, 51 N. Y. *2. State v. McDowell, 1 Penn. St. R. 286, rev'g 66 Hun, 574, 21 N. ^"^^■'> ^' ^^ "^*'- *^*- Y. Supp. 818. *^- State v. Patterson, 6 Kan. 677, North Carolina.— State v. Flowers, SO Pac. 65. 109 N. C. 841, 13 S. E. 718. 44. State v. Mills, 14 Tex. 98. 436 Chabging the Offense — Stattjtoey Offenses. § 380 ■without unnecessary repetition.*^ Under this provision of the code, a statement of facts in an indictment which is merely a repetition of the crime charged, is not sufficient, especially in a case where it may he made out by proof of any of many different acts which constitute a violation of the statute under which the indictment is found and it is impossible for the accused to know what specific violation he is called upon to meet and he cannot therefore properly prepare for his trial. In such a case a de- murrer to the indictment upon the ground that it does not contain a plain and concise statement of the acts constituting the crime is properly sustained.*® § 380. Use of common law form in charging offense. — As a general rule where the elements of a crime are the same both at common law and under the State, the indictment may follow either.*'' So where the statute does not employ any terms de- scriptive of the offense, but merely declares the punishment of an offense, known to the common law, then the mode of framing the indictment will be judged of with regard to the comon law rule.** And in a case in New York it has been said that " there would seem to be no reason why the form an indictment, which was considered sufficient under the strict and technical system of pleading formerly prevailing, and which required the allega- tion of every essential fact constituting the crime, should be deemed insufficient under a system directed to the simplification of criminal proceedings, for the avowed purpose of obviating a 45. N. Y. Code Crim. Proc, § 275. 47. Shotwell v. State, 43 Ark. 345. 46. People v. Corbalis, 178 N. Y. See State v. Lu Sing (Mont., 1906), 516, 71 N. E. 106, reversing People v. 85 Pac. 521. Corbalis, 86 App. Div. 531, 83 N. Y. If a statute adopts a common law Supp. 782, and citing People v. offense without otherwise defining the Dumar, 106 N. Y. 502, 13 N. E. 325; crime, all the common law require- People V. Peckens, 153 N. Y. 576, 586, ments should be followed, in the in- 47 N. E. 883; People v. Willis, 158 dictment. State v. Absence, 4 Port. N. Y. 392, 396, 53 N. E. 29 ; People V. (Ala.) 397. Klipfel, 160 N. Y. 371, 374, 54 N. E. 48. State v. Stedman, 7 Port. 788; People v. Kane, 161 N. Y. 380, (Ala.) 495. 386, 55 N. E. 946. 487 g 380 Charging the Offense — Statutoby Offenses. ' failure of justice, which had sometimes occurred through the tech- nicalities of an artificial and complex mode of procedure."^* When the statute punishes an offense, by its legal designation, without enimierating the acts which constitute it, then it is neces- sary to use the terms which technically charge the offense at com- mon law.^° So in the case of an indictment for manslaughter where the statute does not distinguish the crime from that at common law, if it is drawn after an approved common law pre- cedent it will be good.^* And where the statutory definition of murder does not differ from that at common law, an indictment containing every substantial requisite at common law will be sufficient under the statute.^^ So in New York it has been de- cided that the specification in the statute of the cases which shall bfc deemed murder in the first degree,^* does not necessarily re- quire a change in the form of an indictment, and a conviction under a common law indictment, of murder in the first degree, is proper where the offense proved is brought within either of the 49. People v. Conroy, 97 N. Y. 62, 69. Per Rugeb, C. J., who further said : " The form adopted in this case was the old common law form of pleading which has been uniformly approved as sufficient by the courts of this State through all the statu- tory changes in the definition of the crime of murder, and embraces all the allegations deemed material by the authors of the code. It is undoubt- edly the better way of pleading, to charge the crime to have been com- mitted with one of the several intents described in the code, but we are of the opinion that it is sufficient if the description of the ofi'ense be in the language employed in the second count of this indictment." 50. Tully V. Commonwealth, 4 Mete. (Mass.) 357. If the statute uses a common law name for a crime which it proposes to punish, the indictment must set forth the various ingredients of the crime which go to make up the offense at common law. United States v. Crosby, 25 Fed. Cas. No. 14,893, 4 Cranch C. C. 517. 51. Sutcliffe V. State, 18 Ohio, 469, 51 Am. Dec. 459; see Jennings v. State, 7 Tex. App. 350, holding other- wise where the statutory definition differs in its elements, definition and penalty from the definition of the of- fense at common law. 52. Gerhrke v. State, 13 Tex. 568; Jennings v. State, 7 Tex. App. 350, citing Perry v. State, 44 Tex. 473; vvfall V. State, 18 Tex. 682; White v. State, 16 Tex. 206. See State v. Lu Sing (Mont, 1906), 85 Pac. 521. 53. N. Y. Act of 1876 (Oh. 333, Laws of 1876). 438 Charging the Offense — Statutoey Offenses. § 380 statutory definitions.^* It was said in this case: "It has been settled by a series of adjudications commencing with the case of People V. Enoch,^^ that a specification in the statute of the cases which shall be deemed murder in the first degree and the intro- duction of new definitions, or divisions, does not necessarily re- quire a change in the form of indictment and that a conviction under a common law indictment of murder in the first degree may be had in any case where the offense proved is brought within either of the statutory definitions.^® The statute has not made it necessary to change the form of criminal pleading in indict- ments for murder, and it has been held that a common law indict- ment was sufficient to sustain a conviction of murder in the second degree under the act of 1862." ^'' In a case in Louisiana it is declared that "It seems to be no longer an open question in the jurisprudence of this State, that in an indictment imder a statute providing a penalty for the commission of a common law offense, it is insufficient to charge the offense in the statutory terms alone, but all essential averments in an indictment at common law for the same offense will be deemed necessary here." ^* It is, how- ever, held that it is unnecessary to mingle both statutory and com- mon law forms and that when challenged the indictment must be sufficient according to the one or the other standard.^® 54. Cox V. People, 80 N. Y. 500. pleading; but its true oflSce was to 55. 13 Wend. (N. Y.) 159. abrogate the technical rules formerly 56. People v. White, 22 Wend. (N. governing the construction of crim- Y.) 176, 24 Wend. (N. Y.) 520; inal pleadings, and to substitute People V. Fitzgerald, 37 N. Y. 413; therefor the simplicity and liberality People V. Kennedy, 39 N. Y. 245. of interpretation presented by the 57. Per Andrews, J., citing People new system of criminal procedure. V. Keefe, 40 N. Y. 348; People v. People v. Conroy, 97 N. Y. 62, 69. Thompson, 41 N. Y. 1. Per Ettgeb, C. J. The New York Code of Crim- 58. State v. Flint, 33 La. Ann. inal Procedure (§ 273), was not 1288. Per Fenweb, J., citing State v. intended to abolish existing forms of Thomas, 29 La. Ann. 601; State v. pleading in criminal actions, or to Curtis, 30 La. Ann. 814; State v. obliterate forms of expression, or the Cook, 20 La. Ann. 145; State v. Dur- judicial construction theretofore given bin, 20 La. Ann. 408. to the language employed in such 59. Nichols v. State, 46 Miss. 284. 439 § 381 Ohaegiwg the Offense — Statutory Offenses. § 381. Use of words equivalent to those of statute. — Al- though there are some cases which hold that in charging a statu- tory offense it is essential that the words of the statute should be used,®" yet it is not generally considered necessary that the exact words of the statute should be employed unless the words are tech- nical words which constitute the specific offense;*^ and it is a general rule that an indictment is sufficient in which the offense is charged in words equivalent to those used in the statute creating or defining it.®^ So an indictment will be sufficient though it 60. La Vaul v. State, 40 Ala. 44; State V. Stedman, 7 Port. (Ala.) 495; State V. Cheatwood, 2 Hill (S. C.) 459. 61. Drummond v. Republic, 2 Tex. 156. See Schley v. State (Fla., 1904), 37 So. 518. 62. Alabama. — Giles v. State, 88 Ala. 230, 7 So. 271. Arkansas. — Cannon v. State, 60 Ark. 564, 31 S. W. 150. Indiana. — Nichols v. State, 127 Ind. 406, 26 N. E. 839; Dolan v. State, 122 Ind. 141, 23 N. E. 761; Franklin v. State, 108 Ind. 47, 8 N. E. 695. Kentucky. — Flint v. Common- wealth (Ky.), 23 S. W. 346; John- son V. Commonwealth, 94 Ky. 341, 22 S. W. 335. IJonisiana. — State v. Pellerin, 118 La. 547, 43 So. 159; State v. Wash- ington, 41 La. Ann. 778, 6 So. 633; State V. Brown, 41 La. Ann. 345, 6 So. 541. Massachusetts. — Commonwealth v. Dill, 159 Mass. 61, 34 N. E. 84. MississippL — Richberger v. State (Miss. 1907), 44 So. 772. See Woods V. State, 67 Miss. 575, 7 So. 495. Missouri. — State v. Brown, 115 Mo. 409, 22 S. W. 367 ; State v. Terry, 106 Mo. 209, 17 S. W. 288; State v. Mohr, 55 Mo. App. 329; State v. Matheis, 44 Mo. App. 294; State v. Barr, 30 Mo. App. 498; State v. Delay, 30 Mo. App. 357; State v. Lawson, 30 Mo. App. 139. Montana. — State v. Green, 15 Mont. 424, 39 Pac. 322. Nebraska. — Smith v. State, 72 Neb. 345, 100 N. W. 806; Hodgkins v. State, 36 Neb. 160, 54 N. W. 86. Tievr ITork. — People v. Lowndes, 130 N. Y. 455, 29 N. E. 751, 42 N. Y. St. R. 360; Tully v. People, 67 N. Y. 15; People V. Helmer, 13 App. Div. 426, 43 N. Y. Supp. 642; People v. Cleary, 13 Misc. R. 546, 35 N. Y. St. R. 588; People v. Enoch, 13 Wend. 159. North Carolina. — State v. Var- ner, 115 N. C. 744, 20 S. E. 518; State V. Stubbs, 108 N. C. 774, 13 S. E. 90. Pennsylvania. — Commonwealth v. Stewart, 2 Pa. Dist. R. 43, 12 Pa. Co. Ct. R. 151. South Carolina. — Butler v. State, 3 McC. L. 383; State v. Vill, 2 Brev. 262. Tennessee. — State v. Smith (Tenn. 1907), 105 S. W. 68. Wisconsin.— State v. Mueller, 86 Wis. 203, 55 N. W. 165, decided under Wis. Rev. Stat., § 4669. It is a general rule that an in- 440 Changing the Offense — Statutoey Offenses. § 381 contains words whicli have a more extensive signification than those used in the statute, where the latter words are necessarily included in the former.^* So in an early case in New York it is said, " Where an offense is created by statute, which was not an offense by the common law, it is a general rule that the indict- ment must charge the offense to have been committed under the circumstances and with the intent mentioned in the statute, which of course contains the only appropriate definition of the crime. But even in that case it is not necessary to pursue the exact words of the statute creating the offense, providing other words are used in the indictment which are equivalent, or words of more extensive signification, and which necessarily include the words used in the statute." ®* And in a later case in 'Kew York this doctrine is affirmed in the following words : " It is a well settled rule of criminal pleading that an indictment upon a stat- ute must state all the facts and circumstances which constitute the statutory offense, but it is not necessary that the words of the stat- ute should be precisely followed. Words of equivalent import dictment or information will be suf- ficient to withstand a motion to quash, if it charge the offense in the language of the statute or in terms substantially equivalent thereto. Ben- ham V. State, 116 Ind. 158, 18 N. E. 454, per HowK, J., citing Howard v. State, 87 Ind. 68; State v. Miller, 98 Ind. 70; Ritter v. State, 111 Ind. 324. It is not essential in an indict- ment for a statutory offense to em- ploy the precise words of the statute. It is sufficient to state all the facts constituting the offense, so as to bring the accused precisely within the statutory provisions. Eckhardt V. People, 83 N. Y. 462. See People V. Klock, 48 Hun (N. Y.) 275, 16 N. Y. St. Rep. 565. 63. Iionisiana. — State v. Brown, 41 La. Ann. 345, 6 So. 541. Maine. — State v. Lynch, 88 Me. 195, 33 Atl. 978. New York. — Tully v. People, 67 N. Y. 15, citing People v. Enoch, 13 Wend. 159, 172, 27 Am. Dec. 197. Texas. — State v. Wupperman, 13 Tex. 33. TTtah. — State v. Williamson, 22 Utah, 248, 62 Pac. 1022, 83 Am. St. Rep. 780. " It is well settled that wherever there is a change made of phraseology and a word not in the statute is sub- stituted 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 sig- nification than it, and includes it, the indictment will be sufficient." State V. Brown, 41 La. Ann. 345, 6 So. 54. 64. People v. Enoch, 13 Wend. (N. Y.) 159, 33 Atl. 978. 441 § 382 Chaeging the Offense — Statutory Offenses. may be substituted, or words of more extensive signification, and which necessarily include the words in the statute. The decisions are by no means uniform on the subject, and elsewhere great par- ticularity has been required in framing indictments upon stat- utes, and in some cases it has been held that the precise language of the statute must be used. But the rule in this State is in conformity with the more liberal doctrine above stated." *" In this connection it is said that to state the offense in the words of the statute, is the simplest, safest and most correct mode of drafting an indictment, and that, while it is true, equivalent words may be used in lieu of the statutory description of the of- fense, yet it is dangerous as tending not only to material inac- curacy in substance, but also to irregularity in matters of form. But if the words of the statute are not employed, other words clearly equivalent must be used, so as to bring the offense charged within the provision and limitations of the statute defining or creating it.®^ § 382. Where statute is in disjunctive — Use of conjunctive. — Where a statute enumerates several acts disjunctively, which together or separately shall constitute the offense, an indictment thereunder, if it charges more than one of them, which it may do even in the same count, should do so in the counjunctive, and if the disjunctive is used, the indictment will be bad for uncer- tainty.®^ So it has been said that it is permissible where the 65. Tully V. People, 67 N. Y. 15, California. — People v. Tomlinson, 20. Per AwDBBWS, J., citing People 35 Cal. 503. V. Enoch, 13 Wend. (N. Y.) 172; Indian Tepritory.— Stanchcliff v. People V. Holbrook, 13 Johns. R. (N. United States (Ind. Ter., 1904), 82 Y.) 90; People v. Rynders, 12 Wend. 8. W. 882. (N. Y.) 427; Fraser v. People, 54 Iowa. — State v. Beebe, 115 Iowa, Barb. (N. Y.) 306; People v. Thomp- 128, 88 N. W. 358. son, 3 Park Cr. (N. Y.) 208. Kansas.— State v. Seeger, 65 Kan. 66. State v. Riffe, 10 W. Va. 794; 711, 70 Pac. 579. see State v. Watson, 41 La. Ann. 598, MiasonrL — State v. Pittman, 76 7 So. 125. Mo. 56; State v. McCoUum, 44 Mo. 67. Arkansai. — Thompson v. State, 343 ; State v. Fitzsimmons, 30 Mo. 37 Ark. 408. 236; State v. Freeze, 30 Mo. App. '442 Chaeging the Offense — Statutory Offenses. § 382 statute may be violated in one of several ways, to charge or allege conjunctively that the party violated the statute by all the means set forth in the law; but it is not permissible, under any circum- stances, to charge it in the alternative. The allegations must be distinct and affirmative, and not uncertain nor in the alterna- tive.®® This general rule has been applied to an indictment under a statute making it an offense to sell or give away alcoholic liquors,®^ to " utter, publish, pass or attempt to pass " a forged 347 ; State v. Fairgrove, 29 Mo. App. 641. New Hampshire. — State v. Nara- more, 58 N. H. 273. New Jersey. — State v. Drake, 30 N. J. L. 422; State v. Price, 11 N. J. L. 203. New York. — ^People v. Kane, 61 N. Y. Supp. 632, 14 N. Y. Cr. R. 316. See Bork v. People, 91 N. Y. 5. North Carolina. — See State v. Van Doran, 109 N. C. 864, 14 S. E. 32; State v. Harper, 64 N. C. 129. Oregon. — State v. Carr, 6 Oreg. 133. Rhode Island. — State v. Colwell, 3 R. I. 284. Texas. — Copping v. State, 7 Tex. App. 61. Wisconsin. — Clifford v. State, 29 Wis. 327. Such an indictment is suffi- cient. — United States v. Delaware, L. & W. R. Co., 152 Fed. 269; Stock- slager v. United States, 110 Fed. 590, and not bad for duplicity. State v. Pittman, 76 Mo. 56. Indictment nnder Elhins Act. (Act Feb. 19, 1903, c. 708, 32 St. 847, U. S. Comp. Stat. Supp., 1905, c. 5G9.) — Where it is claimed by de- murrer that an indictment under this act containing several counts is bad for duplicity, the objection being based on the fact that the Elkins Act provided that it is unlawful for any corporation to offer, grant, or give a rebate and that each count of the in- dictment alleged that the railroad company offered, granted and gave a rebate, and that as under the stat- ute offering to give a rebate is a crime, and the actual giving of a re- bate is a crime, two crimes are charged in each count of the indict- ment, the indictment is bad, it is held that the indictment charges but one offense and is good. The court said : " In a criminal pleading if -i. statute makes each one of various acts criminal, and the indictment sets forth said acts coupled with the con- junctive ' and ' instead of the dis- junctive ' or,' if such acts are shown to be merely different stages of the same transaction, the indictment is good." United States v. Delaware, L. & W. R. Co., 152 Fed. 269. Per Holt, J. See further as to indictments under this act §§ 374, 391 herein. 68. Venturio v. State, 37 Tex. Cr. 653, 40 S. W. 974. 69. Thompson v. State, 37 Ark. 408. 443 § 383 Chaeging the Offense — Statutory Offenses. instrument with intent to defraud/* for a debtor to fraudulently conceal property " to prevent the attachment or seizure of the same upon mesne process or execution." ''^ for " each and every person who shall deal, play, or carry on any game of faro," '"' and to disturb a congregation assembled for religious worship " by loud or vociferous talking or swearing or by any other noise." '* And under a statute providing that when it is necessary to state the ownership of property " it shall be sufficient to name one of such persons, and state such property to belong to the person so named, and another, or others, as the case may be," an indict- ment for larceny is fatally defective which charges the property taken as the property of a specified person " and another or others." ''* In those cases, however, where the words are synony- mous, the use of the disjunctive or is held permissible. ''' So it has been decided in the case of an information for the larceny of cattle that the use of the disjunctive " or " in the clause " did then and there feloniously take, steal, drive or lead away " did not render the pleading bad because the association of the word " feloniously " with the words " steal, take and carry, lead or drive away " in the statute made each of the phrases synomy- mous with the others.'^^ §1 383. Recital of statute on which indictment based not necessary. — It is not essential to the validity of an indictment that it should specify the particular act upon which it is founded, '''' provided it adequately describes the offense set forth 70. People v. Tomlinson, 35 Cal. - 76. State v. Brookhouse, 10 Wash. 503. 87, 38 Pac. 862. 71. State V. Naramore, 58 N. H. 77. California. — Re Mansfield, 273. 106 Cal. 400, 39 Pac. 775. 72. State v. Carr, 6 Oreg. 133. Georgia.— Crabb v. State, 88 Ga. 73. Copping V. State, 7 Tex. App. 590, 15 S. E. 457. 61. lotpa. — State v. Allen, 32 Iowa, 74. State v. Harper, 64 N. C. 129. 248. 75. People v. Tomlinson, 35 Cal. Kentucky. — Powers v. Common- 503; Clifford v. State, 29 Wis. 327. wealth, 90 Ky. 167, 13 S. W. 450. See State v. Moore, 61 Mo. 276; State Maryland. — Rawlings v. State, 2 V. Ellis, 4 Mo. 474. Md. 201. 444 Chabging the Offense — Statutoky Offenses. § 384 in the statute/^ So in an early case in South Carolina it is said: " Now it has been perfectly settled that there is no necessity in an indictment or information on any public statute, whether the offense be evil in its own nature, or only becomes so by the prohibition of the legislature, to recite the statute upon which it is founded, for the judges are bound, ex vi termini, to take notice of all public acts."^* So it is said in one case that " we have never understood the law to require an indictment for an offense created by statute to state specifically, by particular refer- ence thereto, the statute violated by the acts alleged to be a crime. The counsel making the objection has cited us to no authority in support of his views ; we do not think they are sustained by either authority or sound reason." *" §i 384. Effect of misrecitals as to statute. — The fact that there is a clerical mistake in reciting the date of the passage of the statute upon which an indictment for misdemeanor is founded will not be a ground for arresting the judgment after conviction, where the offense is otherwise siiiBciently described, the recital of the act being unnecessary.^* And it has been decided that the New Jersey. — ^Mayer v. State, 64 81. Harris v. State, 3 Lea (Tenn.), N. J. L. 323, 45 Atl. 624. 324. The court said: "When the North Carolina. — State v. Wal- offense is correctly set forth accord- lace, 94 N. C. 827. ing to Wie statute, and the statute Soutt Carolina.— Butler v. State, "^«" otherwise identified, a variance 3 McC. L. (S. C.) 383. between the date of the act as charged 78. Ee Mansfield, 106 Cal. 400, 39 and its real date, may well be con- ■o 'rne. ct- t. T71 or: Tj T sidered as technical." Per Coopeb, J. Pac. 775; State v. Flanagan, 25 K. I. , . . ^ .. , , „„n KK A C7R " ** ""* a vaUd objection to an 3b9, 55 A. o7o. • j- i x j.^ ^ .j inaictment that it recites the wrong 79. Butler v. State, 3 McC. L. (S. year in which the statute, under C.) 383. Per Colcock, J. ^hieh the defendant was indicted. The statute upon which an indict- ^^s passed by the legislature. People Dient is founded may be a public stat- y. geed 47 Barb. (N. Y.) 235. The ute though it is found in and is a sec- court said in this case : "It is wholly tion of a private statute. State v. immaterial when the statute was Wallace, 94 K C. 827. enacted by the legislature and be- 80. State v. Allen, 32 Iowa, 248. came a law, provided it was in force Per Beck, J. when the offense charged in the in- 445 § 384 Charging the Offense — Statutoey Offenses. particular section of the code upon which the indictment is based need not be stated.*^ And an immaterial defect in reciting the title of a statute will not vitiate the indictment.** A reference in an indictment to the statutes by a particular section must be understood as referring to the section then in force.** But al- though it is not necessary to set out the particular statute upon which an indictment is founded, yet if the allegations in an in- dictment as to the statute make it evident that the finding of the grand jury was upon a law which has been repealed, a judgment rendered thereon will be arrested.*^ And where it does not ap- pear from the statement of facts that any offense whatever has been committed and the only description is by reference to a statute, the year of which is given wrongly, conviction will not be supported, and it is held that the objection may be taken on appeal.*® And a misrecital of the title of a public statute, so as to make it senseless, in an indictment charging an act to have been done in violation thereof, and not otherwise showing that the act was illegal, is a fatal defect.*^ And it has also been de- dictment was committed. It is a pub- lie statute, of the provisions of which courts will take judicial notice, and none of which need have been recited in the indictment. But the statement of the time when it was passed, was altogether surplusage, and wholly im- material, and could by no possibility have prejudiced the defendant. Con- sequently the indictment is not ren- dered invalid by the misstatement of the time of the enactment." Per Johnson, J. 82. Crabb v. State, 88 Ga. 590, 15 8. E. 457, wherein it was said : " It has never been contended, as far as we are aware, since the adoption of the code, that an indictment should specify a particular section thereof, and there would certainly be as much reason for requiring this to be done as that it should designate a particu- lar act of the legislature." 83. People v. Walbridge, 6 Cow. (N. Y.) 512, so holding where in arr indictment under " an act to prevent abuses in the practice of the law, and to regulate costs in certain cases " there was an omission, in reciting the title, of the word " the " after the words " practice of." 84. Oshe v. State, 37 Ohio St. 494, citing Brigel v. Starbuck, 14 Ohio St. 285. 85. United States v. Goodwin, 20 Fed. 237. 86. Commonwealth v. Washburn, 128 Mass. 421, so holding in the case of a complaint. 87. Commonwealth v. A Man- whose Name is Unknown, 6 Gray (Mass.) 489. 446 Chaegihg the Offense — Statdtoky Offenses. §§ 385, 386 cided that if a party undertakes to recite a statute and mistakes a material poiat, it is incurable, but if he recites truly so much as will serve to maintain his action, and mistakes the rest, this will not vitiate.** §' 385. Misrecitals of statute — Effect of — Conclusion. — Where there is a misrecital of a public act which need not be set out, and the indictment would be good without it, if the indict- ment conclude " contrary to the form of the act in such case made and provided," the recital may be rejected as surplusage, though it is held otherwise if the act be referred to in the con- clusion as the " said statute."*^ So in a case in New Jersey it is said that there is no necessity to recite any public statute on which an indictment is founded, but that when it is recited with a ma- terial variance, and the indictment concludes with the words " contrary to the form of the statute in such case made and pro- vided," without referring to the recited statute, the recital may be rejected as surplusage.®* §i 386. Private statutes — Recitals as to. — In respect to a private statute it is said that the existence of such a law is a fact which must be found or admitted of record to give the court in- formation of its contents, and it must be so stated in pleading so as to enable the court to put it in issue by nul tiel record, if the issue to the court be preferred to one to the jury.®* In this con- 88. Eawlings v. State, 2 Md. 201. Butler v. State, 3 McC. L. (S. C.) 89. Eawlings v. State, 2 Md. 201. 383. 90. Mayer v. State, 64 N. J. L. It is sufficient to charge that the criminal act was " contrary to the laws of said State, the good order, !f^' ^^^.t^i" ^^4, citing State v. , ,. .. ' if, r. vu Deney, 55 Vt. 550. peace and dignity thereof. Crabb v. State, 88 Ga. 590, 15 S. E. 457; or 91- State v. Cobb, 18 N. C. 115. "contrary to the form of the statute," That an act is limited in its opera- State V. Allen, 32 Iowa, 248; Zum- tion to a particular county does not hoflf V. State, 4 G. Greene (Iowa), make it a private act where it has 526; Commonwealth v. Hoye, 11 generally, if not always, been enforced Gray (Mass.), 462; People v. Stock- as a public law without regard to the ham, 1 Park. Cr. R. (N. Y.) 424; forms requisite in pleading a private 447 § 387 Chaeging the Offense — Statutory Offenses. nection it is held that in the case of a private statute it is suf- ficient for an indictment thereunder to set the same forth by chap- ter and date, with its material provisions incorporated therein.^^ A statute, however, which, ■ though local in its nature, extends to all persons who might come within the territory described, is a public statute of which the courts are required to take judicial notice without being pleaded and an indictment charging a viola- tion thereof is sufficient, which refers to it by its general tenor and further describes it by the date of its approval.®* §; 387. Indictment not sufficient under statute pleader had in view but good under another statute. — Though an indictment may contain certain matters showing that the pleader had in view one statute under which the indictment is of no force, yet it may be good under another statute.®* So it was said by the United States Supreme Court in a case in which this question arose in construing indictments covering an offense under one statute but drawn by the district-attorney under other statutes : " It is said that these indictments were not returned under that statute, and that the indorsement on the margin of each indictment shows that the district-attorney of the United States proceeded under other statutes that did not cover the case of extortion com- mitted by a Chinese inspector under color of his office. It is wholly immaterial what statute was in the mind of the district- attorney when he drew the indictment, if the charges made are statute. Eawlings v. State, 2 Md. 94. Hodgman v. People, 4 Den. (N. 201. Y.) 235, cited and followed in People 92. State v. Heaton, 77 N. C. 505. v. Townsey, 5 Den. (N. Y.) 70. Sufficiency o£ description. — In See also Commonwealth v. Carter, a case in Alabama it is held that an 14 Ky. Law Rep. 301, holding that indictment for the violation of a spe- where an indictment is good under cial statute may describe it as ." an one statute the fact that the State act of the legislature of Alabama " elects to prosecute the accused under although the technical designation of another statute under which the in- the legislative body is the " General dictment is not good is no ground for Assembly." Block v. State, 66 Ala. sustaining a demurrer to the indiet- 493. ment. 93. Carson v. State, 69 Ala. 235. 448 Chaegih'g the Offense — Statutoet Offenses. § 388 embraced by some statute in force. The indorsement on the mar- gin of the indictment constitutes no part of the indictment and does not add to or weaken the legal force of its averments. We must look to the indictment itself, and if it properly charges an offense under the laws of the United States, that is sufficient to sustain it, although the representative of the United States may have supposed that the offense charged was covered by a different statute."®^ The language of the court in this case is in part quoted in a late case in the United States Circuit Court of Ap- peals and the doctrine is applied to the case of an indictment of a bankrupt for false swearing before a special commissioner, and it is held that where a bankrupt is sufficiently charged by an in- dictment with having knowingly and fraudulently made a false oath in a bankruptcy proceeding, and is tried upon the assump- tion that the indictment was founded on section 5392 of the United States Revised Statutes, and convicted, it is not error to refuse to dismiss the indictment on the ground that the crime charged therein did not come within that section but within section 29 of the bankruptcy act.'* So the fact that an indict- ment may be dravsTi under a section of the statute which is uncon- stitutional does not vitiate it provided it can be sustained under some other section of the same statute, it being declared that it makes no difference under what particular section of the statute the indictment may be drawn nor the infirmities of such section, provided it be good under some other section of the statute, which is valid.®^ § 388. Where several amendments to statute. — The fact that there are several amendments to a statute and that an indict- ment fails to allege under which act the defendant is charged will 95. Williams v. United States, 168 showed that the United States dia- U. S. 382, 18 Sup. Ct. 92, 42 L. Ed. trlct attorney proceeded under section 509. 5392, while the offense charged was 96. Wechsler v. United States, — one within the special provisions of Fed. — , 16 Am. B. K. 1 (U. S. C. C. section 29 of the Bankrupt Act. A., 1907). In this case the indorse- 97. State v. Vandenburg, 159 Mo. ment on the margin of the indictment 230, 60 S. W. 79. 449 29 § 389 Chaeginq the Offense — Statutory Offenses. not vitiate the indictment where the offense charged is alike in- dictable under all the acts and the amendments only relate to penalties and proceedings."* § 389. Rule as to charging statutory misdemeanors An indictment charging a statutory misdemeanor substantially in the language of the statute is generally sufficient,"® and it is said to be rarely necessary to do otherwise.^ But the rule as to charg- ing misdemeanors in the language of the statute is subject to many exceptions, and does not dispense with the necessity of al- leging those facts and circumstances which must necessarily exist in order to bring the act within the purview of the statute, it being said that it will hardly be pretended that an act is within a statute, unless it be within its obvious scope and its true intent and meaning.^ So in a recent case it is said that " The rule that an indictment for a statutory misdemeanor is sufficient, if the language of the statute is used in charging the offense, is lim- ited to cases where such words fully set forth all the assignments 98. state v. Eeyelts, 74 Iowa, 499, 38 N. W. 377. 99. State v. Snyder, 41 Ark. 226, citing State v. Witt, 39 Ark. 216. See also State v. Moser, 33 Ark. 140; State V. Shaw, 22 Oreg. 287, 29 Pae. 1028. Indictments charging misdemeanor are as a general rule sufficient if drawn in the language of the statute. United States v. Irvine, 156 Fed. 376. An indictment which charges a statutory misdemeanor in the general language of the statute and is suffi- cient to apprise the defendant of the nature of the accusation against him, 80 as to enable him to prepare his de- fense and plead the judgment, in bar of another indictment for the same offense is sufficient. Glass v. State, 45 Ark. 173. In a. case in New York it is de- cided in this connection that an in- dictment for a statutory misde- meanor, which charges the facts con- stituting the crime in the words of the statute, and contains averments as to the time, place, person and other circumstances to identify the particular transaction is good. People V. West, 106 N. Y. 293, 12 N. E. 610, 60 Am. Rep. 452. Though a statute does not declare an oiTense to be a misdemeanor an in- dictment may allege it to be. Hall v. State, 3 Ga. 18. 1. Stancliif v. United States (Ind. Ter., 1904), 82 S. W. 882. 2. People V. Wilber, 4 Park. Cr. R. |N. Y.) 19. Per Bboww, J. 450 Charging the Offense — Statutory Offenses. § 389 necessary to constitute the offense intended to be punished, with- out uncertainty or ambiguity." * 3. United States v. Baltimore & O. E. Co., 153 Fed. 997. Per Goff, J., citing Evans v. United States, 153 U. S. 584, 14 Sup. Ct. 934, 38 L. Ed. 830, wherein it is said that " Even in the cases of misdemeanors, the indict- ment must be free from all ambi- guity, and leave no doubt in the minds of the accused and the court of the exact offense intended to be charged, not only that the former may know what he is called upon to meet, but that, upon a plea of for- mer conviction or acquittal, the record may show with accuracy the exact offense to which the plea relates." Per Mr. Justice Brown. As prosecutions under the act under which this indictment was framed are frequent at the present time, it has been deemed advisable to insert the two following forms here used as a guide to prevent the repetition of the error occurring therein. Indictment No. 794 reads as follows: " United States of America, Northern District of West Virginia, ss. : In the District Court of the United States for the Northern District of West Virginia, at the April term thereof, 1906, at Clarksburg, 'The grand jurors of the United States, impaneled, sworn and charged at the term aforesaid on their oaths afore- said present: That on the — day of , 1905, the Baltimore & Ohio Railroad Company was and still is a corporation organized, existing and doing business under and by virtue of the laws of the State of Maryland, and was then and there duly author- ized to and was doing business under and by virtue of the laws of the State of West Virginia in the said district, and that the said railroad company was then and there engaged in the operation of a railroad commonly known as the West Virginia & Pitts- burg Railroad, extending from Clarksburg, in Harrison county, to Buckhannon, in Upshur county, and that the said railroad was then and there wholly situate and being in the district aforesaid, and that in the operation of the same the said rail- road company was then and there en- gaged in and was carrying and trans- porting over, upon and by means thereof interstate commerce, and the said railroad company was then and there a common carrier, and as such common carrier was then and there engaged in the carrying and transportation of interstate commerce and other freights from points along the line of the said railroad and its branches within the said district to points and places within and without the State of West Virginia; and on the day and year last aforesaid there was situate on or near the line of the said railroad the mines and works of the Red Rock Fuel Company, which said company was then and there the owner of about four thousand acres of land along and adjacent to the said railroad, which said land was then and there underlain with valuable coal of merchantable quality and quan- tity which said coal then and there was existing under favorable and profitable mining conditions, and the 451 § 390 Chaeging the Offen^se — Stattjtoet Offenses, §1 390. Exceptions in statute — General rule. — The general rule as to negativing an exception in charging a statutory offense said fuel company had then and there and theretofore already opened its mines upon the said coal lands and erected its mining plant and equipped the same for the mining of coal near to and adjacent to the said railroad, and was then and there ready, able and willing to mine and produce, and to continue to mine and produce, the coal from the saia mine in great quantities to be carried and trans- ported to various markets outside of the State of West Virginia by means of the said railroad, and had then and there already produced and mined great quantities of coal, to wit, at least seven hundred and fifty tons, and the same was then and there ready to be so carried and trans- ported as aforesaid, and the said fuel company was then and there justly and of right entitled to have sidings, switches, turn-outs and connections to and with the said railroad company so to enable it, the fuel company, to have the coal then and there produced and mined, and to be produced and mined, by it, carried and trans- ported by the said railroad company to the markets outside of the State of West Virginia, and the said sidings, switches, turn-outs and connections were then and there necessary to enable it to have said coal so carried and transported; and the said fuel company then and there had made due and proper application and re- quest for the said switches, sidings, turn-outs and connections to the said railroad company. And the said Baltimore & Ohio Railroad Company being then and there engaged in the operation of the said railroad, and being then and there such common carrier engaged in the carrying and transportation of said interstate com- merce by means of and upon and over the said railroad, did then and there knowingly and unlawfully practice an unreasonable and unjust discrim- ination in respect of the transporta- tion of property in interstate com- merce over, upon and by means of said railroad, by failing and refusing to grant and give and furnish the said Red Rock Fuel Company the said switches, sidings, turn-outs and con- nections, to the undue and unreason- able prejudice and disadvantage of the Red Rock Fuel Company, con- trary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. ' Second Count : And the grand jurors aforesaid, upon their oaths aforesaid, do further present on another day, to wit, on the — day of , in the year 1905, the Baltimore & Ohio Railroad Company was and still is a corporation organized, exist- ing and doing business under and by virtue of the laws of the State of Maryland, and was then and there duly authorized to and was doing business under and by virtue of the laws of the State of West Virginia in the said district, and that the said railroad company was then and there engaged in the operation of a rail- road commonly known as the Par- kersburg Branch Railroad, extending from Clarksburg, in Harrison county, to Buckhannon, in Upshur couniy, 452 Charging the Offense — Stattttoey Offenses. § 390 is that where the subject of any exception is found in the enact- ing or prohibitory clause, it must be excluded by averment in the and 'that the said railroad was then and there wholly situate and being in the district aforesaid, and that in the operation of the same the said rail- road company was then and there en- gaged in and was carrying and trans- porting over, upon and by means of interstate commerce, and the said railroad company was then and there a common carrier, and as such com- mon carrier was then and there en- gaged in the carrying and transporta- tion of interstate commerce from points along the line of the said rail- road within the saia district to points and places without the State of West Virginia; and on the day and year last aforesaid there was situate on or near the line of the said railroad the mines and works of the Red Rock Fuel Company, which said company was then and there the owner of about four thousand acres of land along and adjacent to the said rail- road, which said land was then and there imderlain with valuable coal of merchantable quality and quantity, which said coal then and there was existing \mder favorable and profit- able mining conditions, and the said fuel company had then and there theretofore already opened its mines upon the said coal land and con- structed its mining plant and equipped the same for the mining of coal near to and adjacent to said rail- road and was then and there ready, able and willing to mine and produce, and to continue to mine and produce the coal from the said mine and said land in great quantities to be carried and transported to various markets outside of the State of West Virginia by means of the said railroad, and had then and there already produced and mined great quantities of coal, to wit, at least seven hundred and fifty tons, and the same was then and there ready to be carried and trans- ported as aforesaid, and the said fuel company was then and there justly and of right entitled to have sidings, switches, turn-outs and connections to and with the said railroad com- pany, to enable it, the fuel company, to have the coal then and there pro- duced and mined, and to be produced and mined, carried and transported by the said railroad company to the markets outside of the State of West Virginia, and that the said sidings, switches, turn-outs and connections then and there necessary to enable it to have the said coal so carried and transported; and the said fuel com- pany then and there had made due and proper application and request for the said switches, sidings, turn- outs and connections to the said rail- road company. There was then and there situated the works and mines of various and divers other persons, firms and corporations on and along the line of railroads in the said dis- trict operated by said various per- sons, firms and corporations, to wit, the works and mines of the Southern Coal & Transportation Company, the Century Coal Mining Company, and the Fairmouut Coal Company, and others to the grand jurors unknown, with the same and like conditions and 453 § 390 Chakging the Offense — Statutory Offenses. pleading, but if it is found in a separate substantive clause or in circumstances then and there and theretofore as existed and surrounded the Red Eock Fuel Company then and there, and which last-named com- panies, firms and corporations have theretofore been given, granted and furnished switches, sidings, turn-outs and connections with the said rail- roads whereon each was situate to enable each of them, respectively, to have the coal so mined and produced by each of them carried and trans- ported by the said railroad company over and upon and by means of the railroads so operated by it to mar- kets outside of the State of West Vir- ginia. And the said Baltimore & Ohio Bailroad Company being then and there engaged in the operation of the said railroad, and being then and there such common carrier engaged in the carrying and transportation of the said interstate commerce by means of and upon and over the said railroad, then and there knowingly and unlawfully did practice, give and grant an undue and unreasonable preference and advantage in respect to sidings, switches, turn-outs and connections on its said railroad by giving, granting and furnishing to the said Fairmount Coal Company, the Southern Coal and Transporta- tion Company, and the Century Coal Mining Company sidings, switches, turn-outs and connections then and there and theretofore and by refusing and failing under said same condi- tions and circumstances then and there existing to give, grant and fur- nish to the said Red Rock Fuel Com- pany sidings, switches, turn-outs and connections to and with the said West Virginia & Pittsburg Railroad, which the said fuel company was then and there justly and of right entitled to, to the undue and unreasonable preju- dice and disadvantage of the said Red Rock Fuel Company, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America." Indictment No. 795 reads as fol- lows: " United States of America, Northern District of West Virginia, ss. : " In the District Court of the United States in and for the North- ern District of West Virginia, at the April term thereof, A. D. 1906, at Clarksburg. " The grand jurors of the United States impaneled, sworn and charged at the term aforesaid of the court aforesaid on their oaths present: That on the — day of , 1905, the Baltimore & Ohio Railroad Company was and still is a corporation organ- ized, existing and doing business under and by virtue of the laws of the State of Maryland, and was then and there duly authorized to and was doing business under and by vir- tue of the laws of the State of West Virginia in the said district, and that the said railroad company was then and there engaged in the operation of a railroad commonly known as the Parkersburg Branch Railroad, extend- ing from Grafton, in Taylor county, through the counties of Taylor, Har- rison, Doddridge, Ritchie, and Wood, to the city of Parkersburg, in the 454 Changing the Offense — Statutoey Offenses. 390 a subsequent statute, and is not an essential part of the descrip- county of Wood, and that the said railroad with its branches was then and there wholly situate and being in the district aforesaid, and that in the operation of the same the said rail- road company was then and there en- gaged in and was carrying and trans- porting over, upon and by means thereof interstate commerce; and the said railroad company was then and there a common carrier, and as such common carrier was then and there engaged in the carrying and trans- portation of interstate commerce and other freights from points along the line of the said railroad and its branches to points and places within and without the State of West Vir- ginia; and on the day and year last aforesaid there was situate along the line of the said railroad and its branches and adjacent thereto the Pitts Vein Coal Company, the New York Mine Company, the Rosemount Coal Company, and the Fairmount Coal Company, and various and divers other persons, firms and cor- porations to the grand jurors un- known, each respectively engaged as shippers, and in furnishing for ship- ment, carrying and transportation interstate commerce and other freights over, upon and by means of the said railroad from points on the said railroad and its branches to points and places within and without the State of West Virginia. And the said Baltimore & Ohio Railroad Com- pany being then and there engaged in the operation of the said railroad, and being then and there such com- mon carrier engaged in the carrying and transportation of interstate commerce and other freights by means of and upon and over the said rail- road, did then and there knowingly and unlawfully grant and give and practice an imreasonable and unjust discrimination in respect of the transportation of property in inter- state commerce over, upon and by means of the said railroad, by failing and refusing to grant, give and fur- nish to the Pitts Vein Coal Company its proper and rightful share and quota of cars and motive power which it was justly and of right en- titled to receive from the said rail- road company for the carrying and transportation of property in inter- state commerce then and there pro- posed and intended by the Pitts Vein Company to be shipped over, upon and by means of said railroad from points on the said railroad to points and places within and without the State of West Virginia, and by giv- ing, granting and furnishing to the said New York Mine Company, said Rosemount Coal Company, and said Fairmount Coal Company, and to the other said firms, persons and corpora- tions situate and being as aforesaid and to the grand jurors unknown, more than each of their respective proper and rightful share and quota of cars and motive power, and more than each were respectively and of right justly entitled to receive from the said railroad company as ship- pers, for the carrying and transporta- tion of property in interstate com- merce and other freights over and upon and by means of the said rail- 455 § 390 Chaeging the Offense — Statdtoey Offenses. tion of the offense it is a matter of defence and need not be nega- road from points on the said railroad and its branches to points and places within and without the State of West Virginia, to the undue and unreason- able prejudice and disadvantage of the Pitts Vein Coal Company, con- trary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. " Second Count: And the grand jurors aforesaid, upon their oaths aforesaid, do further present that" on another day, to wit, on the — day of , in the year 1905, the Baltimore & Ohio Railroad Company was and still is a corporation organized, exist- ing and doing business under and by virtue of the laws of the State of Marylapd, and was then and there duly authorized to and was doing business under and by virtue of the laws of the State of West Virginia in the said district, and that the said railroad company was then and there engaged in the operation of a railroad commonly known as the Parkersburg Branch Railroad, extending from Grafton in Taylor county, through the counties of Taylor, Harrison, Doddridge, Ritchie, and Wood, to the city of Parkersburg, in the county of Wood, and that the said railroad with all its branches was then and there wholly situate and being in the district aforesaid, and that in the operation of the same the said rail- road company was then and there en- gaged and was carrying and trans- porting over, upon and by means thereof interstate commerce, and the said railroad company was then and there a common carrier, and as such common carrier was then and there engaged in the carrying and transpor- tation of interstate commerce and other freights from points along the line of the said railroad and its branches to points and places within and without the State of West Vir- ginia; and on the day and year last aforesaid there was situate along the line of the said railroad and its branches and adjacent thereto the Pitts Vein Coal Company, the New York Mine Company, and the Rose- mount Coal Company, and various and divers other persons, firms and corporations to the grand jurors un- known, each, respectively engaged as shippers and in furnishing for ship- ment, carrying and transportation in- terstate commerce and other freights over, upon and by means of the said railroad from points on the said rail- road and its branches to points and places within and without the State of West Virginia ; and the said Balti- more & Ohio Railroad Company being then and there engaged in the opera- tion of the said Parkersburg Branch Railroad Company, and being then and there said common carrier en- gaged in the carrying and transporta- tion of interstate commerce and other freights by means of and upon and over the said railroad, did then and there knowingly and unlawfully give, grant and practice an undue and un- reasonable preference and advantage in respect to a division, allotment, ap- portionment and furnishing of cars and motive power owned, controlled and used by the said railroad com- 456 Chabging the Offense — Statutoet Offenses. 390 tived.* So it has been said by the United States Supreme Court that where a statute defining an offense contains an exception, in. the enacting clause of the statute, which is so incorporated with the language defining the offense that the ingredients of the of- fense cannot be accurately and clearly described if the exception is omitted, the rules of good pleading require that an indictment founded upon the statute must allege enough to show that the pany upon and over the said railroad by giving, granting and furnishing to the said New York Mine Company, the said Kosemont Coal Company, and the said Fairmont Coal Com- pany, and to the said other unknown persons, firms and corporations sit- uate and being and unknown, as aforesaid, more than each of their respective proper and rightful share and quota of cars and motive power, and more than each were respectively and of right justly entitled to receive from the said railroad as shippers, for the carrying and transportation of property in interstate commerce and other freights over and upon and by means of the said railroad and its branches from points on the line of the said railroad to points and places within and without the State of West Virginia; and by failing and refusing to grant, give and furnish upon due and proper request and application therefor to the said Pitts Vein Coal Company its proper and rightful share and quota of cars and motive power, which it was justly and of right entitled to receive from the said railroad company for the carrying and transportation of property in interstate commerce, and then and there proposed and intended by said Pitts Vein Coal Company to be shipped over, upon and by means of said railroad and its branches to points and places within and without the State of West Virginia, to the xm- due and unreasonable prejudice and disadvantage of the Pitts Vein Coal Company, contrary to the form of the statute in such case made and pro- vided, and against the peace and dig- nity of the United States of America." 4. TJnited States. — ^United States V. Cook, 17 Wall. (U. S.) 168, 21 L. Ed. 538; United States V. Clark, 38 Fed. 500; United States V. Felderwald, 36 Fed. 490; United States v. MeCormick, 1 Cranch. C. C. 593; United States v. Pond, 2 Curt. 265. Alabama.^Mosby v. State, 98 Ala. 50, 13 So. 148; Davis v. State» 39 Ala. 521. Arkansas. — Mathews v. State, 24 Ark. 484; Bone v. State, 18 Ark. 109; Brittin v. State, 10 Ark. 299. Connecticut. — State v. Powers, 25 Conn. 48; State v. Miller, 24 Conn. 522. Georgia. — Williams v. State, 89 Ga. 483, 15 S. E. 552; Cook v. State, 26 Ga. 593; Elkins v. State, 13 Ga. 435. Illinois. — ^Metzker v. People, 14 111. 101; Johnson v. People, 44 HI. App. 642; Williams v. People, 20 111. App. 92, aflf'd 121 111. 84, 11 N. E. 881. 457 8 390 Chabging the Offense — Statutoby Offenses. accused is not within the exception, but if the language of the section defining the offense is so entirely separable from the ex- ception that the ingredients constituting the offense may be ac- curately and clearly defined without any reference to the excep- tion, the pleader may safely omit any such reference, as the matter contained in the exception is matter of defence and must Indiana. — State v. Kimmerling, 124 Ind. 382, 24 N. E. 722; Hewitt v. State, 121 Ind. 245, 23 N. E. 83; Schneider v. State, 8 Ind. 410; Bouser v. State, 1 Ind. 408; Colson V. State, 7 Blackf. 590. Iowa. — State v. Williams, 20 Iowa, 98; State v. Beneke, 9 Iowa, 203. Kentucky. — Commonwealth v. Mc- Glanahan, 2 Mete. 8. Iionisiana. — State v. Lyons, 3 La. Ann. 154. Maine. — State v. Gurney, 37 Me. 149; State v. Keen, 34 Me. 500; State V. Godfrey, 24 Me. 232. Massachusetts. — Commonwealth v. Fitchburg R. R. Co., 10 Allen, 189; Commonwealth v. Maxwell, 2 Pick. 139. Michigan. — ^People v. Decarie, 80 Mich. 578, 45 N. W. 491. Missouri. — State v. Doerring, 194 Mo. 398, 92 8. W. 489; State v. ilathaway, 106 Mo. 236, 17 S. W. 299 ; State v. Cox, 32 Mo. 566 ; State V. Sutton, 24 Mo. 377; State v. Spar- row, 52 Mo. App. 374; State v. Seal, 47 Mo. App. 603; State v. Harris, 47 Mo. App. 558; State v. Finn, 38 Mo. App. 504. Nebraska. — Gee Woo v. State, 36 Neb. 241, 54 N. W. 513. Jfexr Hampshire. — State v. Mc- Glynn, 34 N. H. 422; State v. Abbott, 31 N. H. 434. Hew Jersey. — State v. Price, 71 N. J. L. 249, 58 Atl. 1015; Mayer v. State, 64 N. J. L. 323, 45 Atl. 624; State V. Peters, 51 N. J. L. 244, 17 Atl. 115. Ifew Tork. — People v. Stedeker, 175 N. y. 57, 67 N. E. 132. North Carolina. — State v. Pool, 106 N. C. 698, 10 S. E. 1033; State v. Turner, 106 N. C. 691, 10 S. E. 1026. Ohio.— Seville v. State, 49 Ohio St. 117, 30 N. E. 621, 15 L. R. A. 516; Stranglein v. State, 17 Ohio St. 453. Oklahoma. — Parker v. Territory, 9 Okla. 109, 59 Pac. 9. South Carolina. — Reynolds v. State, 2 Nott. & M. 365. Tennessee. — ^Worley v. State, 11 Humph. 172. Texas. — State v. Smith, 24 Tex. 285 ; Keizewetter v. State, 34 Tex. Or. 513, 31 S. W. 395; Anderson v. State, 34 Tex. Cr. 96, 29 S. W. 384; Govitt V. State, 25 Tex. App. 419, 8 S. W. 478. Utah.— State v. Williamson, 22 Utah, 248, 6 Pac. 1022, 83 Am. St. Rep. 780; People v. Parman, 7 Utah, 7, 24 Pac. 539; People v. Fairbanks, 7 Utah, 3, 24 Pac. 538. Vermont. — State v. Smith, 61 Vt. 346, 17 Atl. 492; State v. Abbey, 29 Vt. 60; State v. Barker, 18 Vt. 195. Virginia. — Commonwealth v. Hill, 5 Gratt. 682. 458 ChAKGING the OpFENSE StATUTOEY OSTENSISS. § 391 be shown by the accused.^ words by other courts.® And the rule is stated in similar §' 391. Same subject — ^Application of rule. — An indictment under the New York Penal Code for the crime of keeping a room for recording bets and selling pools upon the results of horse races should negative the fact that the case comes within the exception in the statute by averring that the room kept and occupied by the Washington. — State v. Davis (Wash., 1906), 86 Pac. 201. Offenses created by statute, as -n'el! as offenses at common law, must he accurately and clearly described in an indictment, and if they cannot be, in any ease, without an allegation that tlie accused is not within an ex- ception contained in the statute de- fining the offense, it is clear that no indictment founded upon the statute «an be a good one which does not con- tain such an allegation, as it is uni- versally true that no indictment is sufficient if it does not accurately and clearly allege all the ingredients of which the offense is composed. U. S. V. Cook, 17 Wall (U. S.), 168, 21 L. Ed. 538; per Mr. Justice Clxffoed. VThere a proviso or exception is embodied in it. separate clause of a penal statute, and not in the clause creating the offense, it is not necessary that an indictmeut founded on the statute should negative the proviso or exception. Grattan v. State, 71 Ala. 344. 5. U. S. V. Cook, 17 Wall (U. S.), 168, 21 L. Ed. 538; per Mr. Justice Clifford. 6. " It is well established that, when a statute creates a substantive ■criminal offense, the description of the same being complete and definite, and by subsequent clause, either in the same, or some other section, or by another statute, a, certain case or class of cases is withdrawn or ex- cepted from its provisions, these ex- cepted cases need not be negatived in the indictment, nor is proof required to be made in the first instance on the part of the prosecution." State V. Connor, 142 N. C. 200, 55 S. E. 787. " The rule of law is, that where the exception is contained in the body of the statute which creates the of- fense, and enters into it as a part of the description, in stating the offense it becomes necessary to negative the exception or to allege that the party charged does not come within the ex- ception. If the exception is distinct from the enacting clause, or from that part of the statute which creates and describes the offense, it becomes matter of defense, and it need not be negatived that the respondent is within the exception." State v. Nor- ton, 45 Vt. 258, 261. Per Botce, J., citing State v. Jiarker, 18 Vt. 197; State v. Butler, 17 Vt. 149. It is said in a case in Alabama that it is unnecessary to aver that the de- fendant did not come within the operation of the exceptions created by 459 § 391 Chaeging the Offense — Statdtoky Offenses. defendaxit was not on a race course authorized by statute^ So if the statute prohibits the doing of a particular act without the au- thority of either one or two things, the indictment should negative the existence of both these before it can be suflBcient. If the ex- ception is stated in the enacting clause of the statute, it is ordin- arily necessary to negative it in order that the description of the crime may correspond with the statute, as, if a statute imposes a penalty for the sale of spirituous liquors without a license; the indictment should aver the want of a license.® So an indictment under an intoxicating liquor law making it a misdemeanor to have open or unlocked any door " to the room or rooms where any liquors are sold or kept for sale during the hours when the sale of liquors is forbidden, except when necessary for the egress or ingress of the person holding the liquor tax certificate authorizing the traffic in liquors at such place, or members of his family, or his servants, for purposes not forbidden by this act " should nega- tive the exception in the statute as to the necessity of having such a door open or unlocked.® And in this connection an indictment under the Elkins act,^" containing an allegation that there was a common arrangement between several carriers for the trans- portation of property over their roads and that the lowest total rate for petroleum products as shown by the printed tariff sched- ules was a certain sum per hundred pounds and that the product of the defendant was transported at a lower rate between certain points, was held not sufficient, it being necessary to negative the the provisos of an act as this is a 248, 62 Pac. 1022, 83 Am. St. Eep. matter of defense which the prosecu- 780. Per Minor, J. tion is not required to anticipate, but ^ p^^^j^ ^ ^^^^^^^ g2 ^.^^ ^ that the rule is otherwise in the case ^^^ ^^ 33^^ j^g j^ ^ g^^^ j^g. of an exception which is incorporated in the enacting clause as it would Neoesglty of negativing ex- then be necessary to negative it in ceptions in indictment for violating order to bring the alleged crime with- liquor laws. See Johnson v. People, 44 in the words of the statute. Carson HI- App. 642; People v. Decarie, 80 V. State, 69 Ala. 2.35. Mich- 578, 45 N. W. 491; State v. 7. People V. Stedeker, 175 N. Y. 57, ^i™> 38 Mo. App. 504; State v. 45 N. E. 398, decided under New York Harris, 47 Mo. App. 558 ; State v. Pen. Code, § 351. Paige, 78 Vt. 286, 62 Atl. 1017. 8. State V. Williamson, 22 Utah, 10. Act Feb. 19, 1903, c. 708, 32 460 Chaeging the Offense — Statutoey Offenses. § 391 existence of a joint through rate lower than the total of the locals.^* Under this act, however, it is held sufficient in another case to aver that the defendant did wilfully and unlawfully grant and pay certain rebates and concessions without negativing the ex- istence of such facts and circumstances as would make the pay- ment of them legal. ^^ St. 847, U. S. Comp. Stat. Supp. 12. United States v. Chicago St. P. 1905, c. 599. M. & O. Ey. Co., 151 Fed. 84; see fur- 11. United States v. Standard Oil ther as to indictments under this act Co., 148 Fed. 719. §§ 374, 382 herein. 461 Duplicity — Joindeb of Offenses. Chapter xiv. Duplicity — Joindee of Offenses — Of Parties. Section 392. Duplicity — Joinder of offenses in one count — General rule. 393. Same subject — Application of rule. 394. Charging in different counts — Different offenses — Generally — Election. 395. Charging in different counts — Different offenses — Generally — Continued. 396. Same subject — Different felonies. 397. Same subject continued — Election. 398. Charging different misdemeanors. 399. Where several acts may constitute offense. 400. Different means or manner of committing offenses — Single count. 401. Same subject continued — ^Application of rule. 402. Several counts stating offense — Different ways and means. 403. Same subject — ^Application of rule. 404. Different offenses resulting from same act. 405. Same subject — Application of rule — Joinder of counts for lar- ceny and other offenses. 406. Same subject — Further application of rule. 407. Continuous acts as one offense. 408. Same subject continued. 409. Offenses of different degree or grade. 410. Offenses of different degree or grade — Application of rule. 411. Conspiracy to do criminal act and commission of act. 412. Charging commission of act and causing of act to be done — Aiding and abetting. 413. Joinder of a felony and misdemeanor. 414. Counts at common law and under statute. 415. Charging acts stated in disjunctive in statute. 416. Offense affecting different articles — Different owners. 417. Offense affecting different buildings or properties — Arson. 418. Offense affecting different persons. 419. Different description of person affected. 420. Where description of offense includes another offense. 421. Unnecessary averment — Surplusage. 422. Imperfect description of another offense — Surplusage. 462 DtrPLICITY JoiNDEE OF OfPENSES. §392 423. Joinder of parties — Generally. 424. Necessity of joinder of parties. 425. EflFect of joinder of parties. 426. Who may be joined as defendants. 427. Joinder of husband and wife. 428. Principal and accessory or aider and abettor — Principals in first and second degree. Sec. 392. Duplicity — Joinder of offenses in one count — General rule. — It is a general rule of criminal pleading that the charge against the accused must not be stated in such a manner as to render the indictment subject to the objection of duplicity, which is said to be a fault in all pleading in that it tends to con- fusion and the multiplication of issues.^ And the rule may be 1. Sprouse v. Commonwealth, 51 Va. 376, wherein it is said that du- plicity or double pleading consists in alleging for one single purpose or object, two or more distinct grounds of complaint, when one of them would be as effectual in law as both or all. Mode of taking advantage of defect of duplicity — Effect of verdict. — The defect of duplicity in an indictment may be taken advan- tage of by demurrer. People v. Shot- well, 27 Cal. 394; Simons v. State, 25 Ind. 331; State v. Henn, 39 Minn. 464, 40 N. W. 564; People v. Klipfel, 160 N. Y. 371, 54 N. E. 788, 14 N. Y. Cr. R. 169, atf g 37 App. Div. 224, 55 N. Y. Supp. 789. Compare Kooler v. United States, 127 Fed. 509, 62 C. C. A. 307, as to practice in Federal courts. Where two or more offenses are charged the generally accepted rule is that the indictment may on motion be quashed or the prosecutor be compelled to elect on which charge he intends to proceed. Fisher v. State, 33 Tex. 792. And where no attempt is made to have an indict- ment quashed on the ground of du- plici'^y, and no motion is made to re- quire the State to elect it is too late after verdict to raise this objection. State V. Wilson, 143 Mo. 334, 44 S. W. 722. So it is said that it is too late after verdict to raise the ques- tion of duplicity by a motion in ar- rest of judgment where it does not appear that the substantial rights of the accused have been prejudiced by the joinder. Morgan v. United States, 148 Fed. 189 (C. C. A.). This doc- trine is sustained by numerous de- cisions. California. — People v. Shotwell, 27 Cal. 394. Georgia. — Lampkin v. State, 87 Ga. 516, 13 S. E. 523. Indiana. — Simons v. State, 25 Ind. 331. Massachnsetts. — Commonwealth v. Jacobs, 152 Mass. 276, 25 N. E. 463; Commonwealth v. Ryan, 152 Mass. 283, 25 N. E. 465. 463 §392 Duplicity — Joindee of Offenses. stated as well settled that two or more distinct offenses must not be charged in the same count of an indictment.^ And it is said in this connection that no rule of criminal pleading is better estab- lished than that which prohibits the joinder of two or more sub- stantive offences in the same count. A substantive offence is one which is complete of itself, and is not dependant upon another. North Carolma. — State v. Cooper, 101 N. C. 684, 8 S. E. 134. Wisconsin. — ^Ketchingman v. State, 6 Wis. 426. But in an early case in South Carolina it is held that where a defendant is found guilty on a count ■which charges two distinct offenses he may avail himself of the objection by a motion in arrest of judgment. State V. Howe, 1 Rich. L. (S. C.) 260. Wlien duplicity clearly exists it is sufficient ground for sustaining a motion to quash. Herron v. State, 17 Ind. App. 164, citing Davis v. State, 100 Ind. 154; Joslyn v. State, 128 Ind. 160, 27 N. E. 492; Knopf v. State, 84 Ind. 316; Pahnestock v. State, 10 Ind. 156. 2. United States. — United States V. Smith, 162 Fed. 542; United States V. Sharp, Pet. C. C. 131. Alabama. — Burgess v. State, 44 Ala. 190; Ben v. State, 22 Ala. 9, 58 Am. Dec. 234n. Florida. — Hagahagin v. State, 17 Fla. 665. Indiana. — State v. Weil, 89 Ind. 286; Knopf v. State, 84 Ind. 316. Kansas. — State v. Wester, 67 Kan. 810, 74 Pac. 239; State v. Lund, 49 Kan. 209, 30 Pac. 518. Kentucky. — Commonwealth v. Powell, 71 Ky. 7. Iionisiana. — State v. Batson, 108 La. 479, 32 So. 478; State v. Jacques, 45 La. Ann. 1451, 14 So. 213; State v. Johns, 32 La. Ann. 812; State v. Charles, 18 La. Ann. 720. Maine. — State v. Palmer, 35 Me. 9. Massachusetts. — Commonwealth v. Symonds, 2 Mass. 162. Michigan. — Chase v. Van Buren (Mich. 1907), 111 N. W. 750; People V. Van Alstine, 57 Mich. 69, 23 N. W. 594. Minnesota. — State v. Coon, 14 Minn. 456. Mississippi. — Breeland v. State, 79 Miss. 527, 31 So. 104; State v. Brown (Miss.), 28 So. 752. Missouri. — State v. Fox, 148 Mo. 517, 50 S. W. 98; State v. Bridges, 24 Mo. 353; State v. Bach, 25 Mo. App. 554; State v. Green, 24 Mo. App. 227. New Hampshire. — State v. Gor- ham, 55 N. H. 152. New Jersey. — Farrell v. State, 54 N. J. L. 416, 24 Atl. 723. New York. — Woodford v. People, 62 N. Y. 117; People v. Wright, 9 Wend. 193; People v. Stock, 21 Misc. E. 147, 47 N. Y. Supp. 94; People v. Frazier, 36 Misc. R. 280, 73 N. Y. Supp. 446 ; Reed v. People, 1 Park Or. R. (N. Y.) 481. North Dakota. — State v. Matti- son, 13 N. D. 391, 100 N. W. 1091. Ohio. — Myers v. State, 4 Ohio 0. C. 570. Pennsylvania. — Fulmer v. Com- 464 Duplicity — Joindee of Offenses. §392 When several acts relate to the same transaction, and together constitute but one ofiPense, they may be charged in the same count, but not otherwise. Each count in an indictment must stand or fall by itself. The jury cannot find a verdict of guilty as to one part and not guilty as to another part of the same count. This strictness of pleading is necessary in order that the accused may not be in doubt as to the specific charge against which he is called to defend, and that the court may know what sentence to pro- nounce. When two or more independent offences are joined in monwealth, 97 Pa. St. 503; Common- wealth V. Hall, 23 Pa. Super. Ct. 104; Commonwealth v. Delamater, 2 Pa. Dist. Rep. 118. Rhode Island. — State v. Custer (R. I. 1907), 66 Atl. 309. Soath Carolina. — State v. Howe, 1 Rich. L. 260. Tennessee. — Greenlow v. State, 4 Hump. 25; State v. Ferris, 3 Lea, 700. Texas. — Fisher v. State, 33 Tex. 792; Crow v. State (Ter. Cr. 1905), 90 S. W. 650. ■West Virginia. — State v. Gould, 26 W. Va. 258. Tlie criminal la.\r does not permit the joinder of two or more offenses in one count. We must con- sider what are two or more distinct offenses within the rule stated. It is not an objection to an indictment that a part of the allegations might be lopped off and the indictment re- main sufScient, and although the charge might be branched out into two offenses, if the whole be but parts of one fact of endeavor, all the parts may be stated together. Of this there are familiar illustrations. An accused might be charged with selling the different kinds of liquor con- trary to law; the sale of each kind would be an indictable offense, yet an indictment setting forth a violation of the law in selling all would not be to charge several distinct offenses. A man may be indicted for the battery of two or more persons in the same count, yet the battery of each was an offense; yet they may be charged to- gether, because they are but parts of one endeavor — the offense against the commonwealth being the breach of the peace. Or a libel upon two or more persons when the publication is one single act, may be charged in one court without rendering it bad for duplicity under the rule stated above. Or in robbery with having assaulted two persons and stolen from one a sum of money and from the other a different sum if it was all one trans- action. Or where two make an as- sault with an intent to kill, with dif- ferent weapons, they may charge jointly in one count. And if a man shoots at two persons to kill either regardless of which, he may be con- victed on a charge of a joint assault, yet either assault was an offense. Sprouse v. Conunonwealth, 51 Va. 376. 465 30 § 393 Duplicity — Joihdek of Offenses. the same count it will be bad for duplicity.^ This rule, however, is said not to apply where the offenses described are cumulative.'' And a defect arising from a fact that two or more offences are charged in one count has been held to be a mere defect of form which is cured by verdict.® §' 393. Same subject — Application of rule. — An indictment charging in the same count an assault with intent to maim and an assault with intent to kill is bad for duplicity in that it charges two distinct offenses.® And an indictment is defective which charges in one count the two offenses of stabbing any person with intent to commit murder, and that of inflicting with a dangerous weapon a wound less than mayhem.'' So an indictment which charged the defendant, as a member of a board of supervisors, possessing the power to audit and allow claims against the county, with knowingly and corruptly using the power to allow a dis- honest demand, and to authorize the county auditor to pay it,, in violation of the Penal Code in New York,* and which also charged him with presenting a fraudulent claim, being the same claim presented to the county auditor or to an auditing board for allow- ance and payment, in violation of the Penal Code,® was held bad for duplicity, within the Code of Criminal Procedure,^" in that it charged, in one count, two specific crimes." And in another case in New York it is held that where in an indictment for 3. State V. Smith, 61 Me. 388, per Spears, 310. DiCKEBSON, J. WisoonciH.— State v. Brelby, 21 4. IiouiBiajia.— State v. Markhain, Wis. 204. 15 La. Ann. 498; State v. Banton, 4 5. State v. Fox, 148 Mo. 517, 50 S. La. Ann. 31. W. 98. Blassacbaaetts. — Commonwealth v. 6. State v. Leavitt, 87 Me. 72, 32 Turtchell, 4 Cush. 74. Atl. 787. Missouri.— State v. Fletcher, 18 7. State v. Johns, 32 La. 812. Mo. 425. 8. Section 165. New York. — Le Bean v. People, 33 9. Section 672. How. Pr. 66. 10. Section 278. Sontli Carolina. — State v. Meyer, 11. People v. Stock, 21 Misc. Rep. 1 Spears, 305; State v. Helgen, 1 (N. Y.) 147, 47 N. Y. S. 94. 466 Duplicity — Joindek of Offenses. § 394 forgery two distinct offenses requiring different punishments are alleged 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.'* Again an indictment setting forth an offence of omission and also an offence of commission in the same count is bad.'^ But where the gist of an offense was the bringing into town of intoxicating liquors with one or more of the illegal intents specified in the stat- ute it was held that the offense might properly be charged in one count although more than one intent was alleged.'* And in an early case in Alabama it was held that an indictment under a statute declaring that no " cruel or unusual punishment " should be inflicted on any slave was not bad for duplicity in that it charged both the cruel and unusual punishment of a slave.'^ § 394. Charging in different counts — Different offenses — Generally — Election — In determining what offenses may be charged it has been decided that kindred offenses which are gen- eric in kind growing out of the same act may be charged in the same indictment provided they be incorporated in separate counts.'® And different offenses may be joined in the same indictment in different counts, if the offenses are subject to the same punish- ment.''^ So it is a generally accepted rule that two offenses, com- mitted by the same person, may be included in the same indict- ment, in different coimts, where they are of the same general nature, and belong to the same family of crimes, and where the 12. People V. Wright, 9 Wend. (N. 158 Mass. 199, 33 N. E. 339, citing Y.) 193. Commonwealth v. Moody, 143 Mass. 13. State V. Coon, 14 Minn. 456; 177, 9 N. E. 511; Commonwealth v. holding that an indictment against Ferry, 146 Mass. 203, 208, 15 N. E. defendant for "wilfully neglecting 484; Commonwealth v. Clancy, 154 his duty as a justice of the peace, Mass. 128, 132, 27 N. E. 1001. and for misbehavior in office as a jus- 15. Turnipseed \. State, 6 Ala. tice of the peace, is bad as charging 664. two distinct offenses. 16. State v. Jones, 52 La. Ann. Compare People v. Kane, 61 N. T. 211, 26 So. 782; State v. Wren, 48 Supp. 195, 632, 43 App. Div. 472, 14 La. Ann. 803, 19 So. 745; State v. N. Y. Cr. E. 316. Cook, 42 La. Ann. 85, 7 So. 64. 14. Commonwealtn v. Brothers, 17. Baker v. State, 4 Ark. 56. 467 §394 Duplicity — Joindee of Offenses. mode of trial and nature of the punishment are also the same, although they may he punishable with different degrees of se- verity.-'^ In this connection, however, it is declared that it is bad practice and that the state upon motion may, in the discretion of the court, be compelled to elect upon which she will proceed ; but that if no motion to that effect is made, the judgment after verdict will not be arrested.^® So in another case it is decided that sev- eral counts for different offences may be joined in the same in- dictment, where the judgment on conviction of either is the same and in such case it is usual to require the solicitor to elect upon which count he will try the accused before he commences the ex- amination of the witnesses. A refusal to quash for such alleged misjoinder is no ground for arrest of judgment.^" And again it is decided that an indictment which charges two distinct offenses which are not part of the same transaction and are not connected is bad for duplicity and that the state may be required to elect as to which offense it will pro- 18. Alabama. — Wooater v. State, 55 Ala. 217; Johnson v. State, 29 Ala. 62. Georgia. — Lascelles v. State, 90 Ga. 347, 16 S. E. 945, 35 Am. St. Eep. — ; Williams v. State, 72 Ga. 180. Maine.— State v. Welch, 79 Me. 95, 8 Atl. 347 ; State v. Burke, 38 Me. 574; State v. Nelson, 29 Me. 329. Missouri. — Frazler v. State, 5 Mo. 536. Tennessee. — Tucker v. State, 8 Lea, 633. Texas. — Owens v. State, 35 Tex. Cr. 345, 33 S. W. 975. Wisconsin. — Jackson v. State, 91 Wis. 253, 64 N. W. 838. It is well settled, both in Eng- land and in the United States, that distinct offenses, of the same degree, may be joined in the same indictment. Strawhern and Grizzle v. State, 37 Miss. A. 422. Tvro or more otFenses may well he charged in one indictment as having been committed by the same defendant where the offenses are of the same character. Lowe v. State, 134 Ala. 154, 156, 32 Aal. 273. 19. Team v. Mayers, 53 Miss. 458. Matter in discretion of conrt. — ^Whether the State should be put to its election, and if so at what stage of the trial, are matters for the dis- cretion of the trial court. If the ac- cused will be confounded in his de- fense or deprived of the protection of legal rules by requiring him to answer both charges before the same jury, the court will not compel it. But the offenses may be so related to each other that justice will seem to demand a joint trial. State v. Dar- ling, 77 Vt. 70. 20. State v. King, 84 N. C. 737. 468 Duplicity — Joindee of Offenses. §394 eeed upon.^^ It is held, however, that an election between counts cannot be required on the ground that distinct offenses are charged where they are committed by the same acts at the same time, and the same testimony must be relied on for conviction.^^ The com- mon law rule is that, if an indictment contains charges distinct in themselves and growing out of separate transactions, the prose- cutor may be made to elect, or the court may quash. But when it appears that the several counts relate to one transaction, varied simply to meet the probable proofs, the court will neither quash nor enforce an election.^^ And in this connection it is said that the effect of a union in the same indictment of several counts for distinct offences is different, where such distinct offences grow out of the same transaction, and when such offences had no con- nection the one with the other. In the first class, our courts have held that it was the duty of the judge to instruct the jury as to the effect of a general verdict of guilty, which is under- stood to carry the highest offense alleged, if there is testimony to support it, so that the jury may shape their verdict so as to conform to their real convictions by finding upon each count separately. In the second class of cases, it is the duty of the presiding judge, without waiting for a motion to that end from the defendant, to order the prosecuting officer to elect upon what charge he will confine the trial.^* And in another ease it is de- cided that if the indictment contains different counts which are in fact for separate and distinct offenses, and this fact appears on the opening of the cause, or at any time before the jury are 21. State V. Fidment, 35 Iowa, to be for distinct and separate of- 541; Burgess v. State, 81 Miss. 482, fenses, are inserted in good faith for 33 So. 499. See also State v. Caine the purpose of meeting a single (Iowa, 1906), 105 N. W. 1018; charge, the court will neither quash People V. Flaherty, 162 N. Y. 532, 57 the indictment, nor compel the prose- N. E. 73, rev'g 27 App. Div. 535, 50 cutor to elect upon which count he N. Y. Supp. 574. will proceed to trial. State v. Smith, 22. People v. Sweeney, 55 Mich. 24 W. Va. 815. 586, 22 N. W. 50. Compare United 23. State v. Morrison, 85 N. C. States V. Harmon, 38 Fed. 827. 562. If the different counts in an 24. State v. Woodward, 38 S. C. indictment for mnrder purporting 355, 17 S. E. 135. 469 §395 Dui'LICITY JoiNDEE OF OfFENSES. sworn for the trial thereof, the court may quash the same lest it may confound the prisoner in his defense or prejudice his chal- lenges of the jury; and in such case, if the defect is discovered after the jury are sworn and before the verdict is found the court may require the prosecutor to make his election on which charge he will proceed.^® Where a count of an indictment charges more than one substantive offense the election of the state to place the defendant on trial for one of the offenses so charged amounts to an abandonment of the other charges which thereupon cease to be parts of the indictment.^® §, 395. Charging in different counts — Different offenses — Generally — Continued — Where there are different counts in an indictment it has been declared that it is necessary to show by the averments that the offense changed in each is different from those charged in the others,^^ and that every separate count should charge the defendant as if he had committed a distinct offense, because it is upon the principle of the joinder of offenses that the joinder of counts is permitted.^^ But in an early case in Virginia it is held that where in an indictment for murder there are two counts the fact that in the second coxmt the offense is not set out as another offense is not error.^® And where the same of- fense is described in different counts, it is held that it is not necessary to allege the offense described in each of the several counts as other and different from that described in the others.'" 25. State v. Smith, 24 W. Va. 815. was held that a demurrer should have 00 Tvj^-ii oi. i en T J iQ-T been sustained to all but one of the 26. Mills V. State, 52 Ind. 187. , , , , counts or the State should have been 27. State v. Von Haltsehwherr, 72 required to elect on which count it Iowa, 541, 34 N. W. 323, so holding would stand. where several counts in the same Ian- 28. Baker v. State, 4 Ark. 56; guage in an information each charged State v. Lincoln, 49 N. H. 464, citing the sale of intoxicating liquors " to 1 Chitty Cr. Law, 249 ; I Bishop on a person whose name is unknown to Cr. Proc, §§ 183, 184, 197. See also affiant " and there was nothing in the Commonwealth v. Ault, 10 Pa. Super, language used to show that the of- Ct. 651. fense intended to be charged was a 29. Lazier v. Commonwealth, 10 different offense from that charged in Gratt. (Va. ) 708. either of the others. In this case it 30. State v. Rust, 35 N. H. 438, 470 Duplicity — Joindee of Offenses. §395 So it is decided that an indictment may charge the same offense in several counts in several ways for the purpose of meeting the evidence and though it is usual to charge the offense as if the offense in each count was a distinct offense yet this is said to be matter of form and an indictment is not on this account defec- tive.*^ " The introduction of several counts which merely de- scribe the same transaction in different ways, gives the public prosecutor greater latitude in proof, so as to avoid a variance, for if not sufficient to sustain one count it might another."*^ And where, offenses of the same character and subject to the same punishment may be committed with different intents, such intents may be alleged in the same count in the alternative ; they may also be alleged in separate counts of the same indictments.** And an information charging an assault with a deadly weapon is not bad for duplicity on the ground that it alleges the assault was made " without considerable provocation, and with a wilful, malignant and abandoned heart.'"* wherein it is said " when only a single offense is described in different counts, it is manifestly unnecessary and improper to allege and charge the offense described in each count as dis- tinct and different from that de- scribed in all the others." Per FowxEB, J. But see State v. Ruby, 68 Me. 545, holding that the same offense may be stated in different ways in as many counts as are deemed necessary, and that every separate count is required to charge a distinct offense, upon the ground that the law allows the joinder of several dictinct offenses. 31. State v. Brady, 16 E. I. 51, 12 Atl. 238; State v. Doyle, 15 K. I. 527, 9 Atl. 900. See People v. Charbineau, 115 N. Y. 433, 22 N. E. 271, 26 N. Y. St. R. 490. 32. Baker v. State, 4 Ark. 56, 59. Per Dickinson, J. Tbe indictment may contain as many counts as are necessary to meet the contingencies of the evi- dence, without necessitating an elec- tion. Mathews v. State, 10 Tex. App, 279, citing Dill v. State, 1 Tex. App, 278; Weathersby v. State, 1 Tex, App. 643; Dalton v. State, 4 Tex App. 333; Irving v. State, 8 Tex. App 46. It is not only permissible, bnt commendable, to insert in an in- dictment as many counts as will be necessary to provide for every pos- sible contingency in the evidence. Shubert v. State, 20 Tex. App. 330. 33. Carleton v. State, 100 Ala. 131 ; see Commonwealth v. Igo, 158 Mass. 199, 33 N. E. 339; State v. Ward, 61 Vt. 214, 17 Atl. 483. 34. State v. Townaend, 7 Wash. 471 §396 Duplicity — Joindee of Offenses. § 396. Same subject — Different felonies. — Several felonies of the same class may be joined in different counts in the same indictment, and it is not error to refuse to require the State to elect upon which one the defendant shall be tried.^" So in a case in Kansas it is declared that several separate and distinct fellonies may be charged in separate counts of one and the same information where all the offenses charged are of the same gen- eral character, requiring the same mode of trial, the same kind of evidence and the same kind of punishment, and that the defendant may be tried upon all the several counts at one and the same time ; 462, 35 Pac. 367. " But the one crime only is charged, and that is an as- sault with a deadly weapon with in- tent to do great bodily harm, and when that is coupled with either of the conditions, namely, ' without con- siderable provocation ' or ' with a wilful, malignant and abandoned heart,' a crime is made out; and it is as clearly made out when both the conditions accompany the act as when it is accompanied by one, and is ex- actly the same crime in both in- stances; either condition constitutes the crime; both together do no more." Per DuNBAB, C. J. 35. Alabama. — Cawley v. State, 37 Ala. 152; Henry v. State, 33 Ala. 389; Covy v. State, 4 Port. 186. Arkansas. — Orr v. State, 18 Ark. 540; Baker v. State, 4 Ark. 56. Georgia. — Jones v. State (Ga. 1907), 58 S. E. 558; Stephen v. State, 11 Ga. 225. Indiana. — Merrick v. State, 63 Ind. 330; McGregor v. State, 16 Ind. 9; Hudson v. State, 1 Blackf. 317. Kansas. — State v. Hodges, 45 Kan. 389, 26 Pac. 676. lionisiana. — State v. Cazeau, 8 La. Ann. 114. Maine. — State v. Hood, 51 Me. 363; State v. Andrews, 17 Me. 103. Massachasetts. — Benson v. Com- monwealth, 158 Mass. 164, 33 N. E. 384; Commonwealth v. Jacobs, 152 Mass. 276, 25 N. E. 463; Common- wealth V. Mullen, 150 Mass. 394, 23 N. E. 51; Commonwealth v. Hills, 10 Cush. 530. Michigan. — People v. McKinney, 10 Mich. 54. Mississippi. — Sarah v. State, 28 Miss. 267. Missouri. — Storrs v. State, 3 Mo. 9. New Tork. — Kane v. People, 8 Wend. 203; Coats v. People, 4 Park. Cr. E. 662. Ohio.— Bailey v. State, 4 Ohio St. 440. Tennessee. — Cash v. State, 10 Humph. 111. Utah.— United States v. West, 7 Utah, 437, 27 Pac. 84. See also cases cited in preceding section. The rnle is well settled that several distinct felonies, of the same general nature, may well be charged in separate counts of the same indict- ment. Henry v. State, 33 Ala. 389, 472 Duplicity — Joindee of Offenses. §396 all resting in the sound judicial discretion of the trial court.^® And in a case in Missouri it is said that " It is the common and approved practice in this State, to charge in the same indictment several distinct felonies, when all relate to the same transaction and admit of the same legal judgment. "^^ And in an earlier case in the same State it was decided that where the offenses charged in an indictment, containing several counts, were all of the same nature, founded on the same section of the statute, and upon which the same judgment could have been rendered if the evi- dence sustained any of the counts, the jury had a right to find a general verdict as there was no misjoinder.^* So the crimes of embezzlement and larceny may, it is held, be properly joined in different counts in an indictment.^® And the offenses of obtain- ing money imder false pretenses and larceny from the person may be joined in different counts in the same indictment.*" But while under the common law, an indictment for a felony might under certain circumstances, allege in separate counts any number of distinct felonies, provided they were of the same general nature, or were connected with the same transaction, yet even under that system of criminal procedure no rule was better settled than that which prohibited the joinder of two or more substantive offenses in the same count. The rule was necessary in order that the ac- cused might not be in doubt as to the specific charge against which he was called to defend himself ; that the court might know what sentence to pronounce, and that the accused might be fully pro- tected against any other prosecution for the same offense.*^ But descriptive inconsistencies in the several counts of an indictment, with respect to the place of the death of the victim of a murder, or 397. Per R. W. Walkeb, J., citing 38. Pasier v. State, 5 Mo. 536. Johnson v. State, 29 Ala. 65; Com- 39. Mayo v. State, 30 Ala. 32; monwealth v. Hill, 10 Gush. (Mass.) Murphy v. People, 104 111. 528; 530; Sarah v. State, 28 Miss. 267. Stephens v. State, 53 N. J. L. 245, 21 „, , „ , ,^ ^ „„„ Atl. 1038; Coats v. People, 4 Park. 36. State v. Hodges, 45 Kan. 389, q^ R (N Y 1 662 40. Johnson v. State, 29 Ala. 62. 37. State v. Houx, 109 Mo. 660, 19 41. State v. Mattison, 13 N. Da. 26 Pac. 677. 37. State S. W. 35, 32 Am. St. Rep. 686. 393, 100 N. W. 1091 473 § 397 Duplicity — Joindek of Offenses. of the instruments used, do not show that several felonies are em- braced in such indictment; in legal intendment but a single of- fense is described.*^ § 397. Same subject continued — Election — It is held that the only mode of objecting to the joinder of several distinct felon- ies in one indictment is by a motion to the trial court, before plea, to quash the indictment, or in a subsequent stage of the pro- ceedings to apply to compel the prosecutor to elect which charge he will proceed upon.** So in cases of felony, where two or more distinct and separate offences are contained in the same indict- ment, it may be quashed, or the prosecutor compelled to elect upon which charge he will try the accused.** And where upon the trial distinct transactions are developed, it is said that at the request of the defendant, the State should be forced to elect upon which count or transaction it will prosecute.**" But in another case it is decided that though where two or more distinct felonies arising out of different transactions are charged in the same in- dictment or information the prosecutor may, on motion of the accused, be compelled to elect upon which he will proceed yet that such objection must be made before trial and ver- dict, otherwise it will be waived.** The practice, however, of joining distinct felonies in the same indictment, is not to be com- mended ; and although the joinder of distinct offenses in the same indictment constitutes no legal ground for quashing the indict- ment; yet if objection, on that ground, be made before plea, the court, at its discretion, may order the indictment to be quashed, lest it should embarrass the prisoner in his defence, or prejudice him in his challeaige to the jury.*^ So where separate and distinct L. 45. McKenzi'e v. State, 32 Texas, 575. L 46. Blodgett v. State, 50 Neb. 121, 69 N. W. 751, citing Thompaon t. People, 4 Neb. 524; Aiken v. State, 44. Kane v. The People, 8 Wend. 41 Neb. 263, 59 N. W. 888. (N. Y.) 203; see also State v. Kibby, 47. Strawhern and Grizzle v. 7 Mo. 317. State, 37 Miss. 428. 474 42. Hunter v. State, 40 N. J. 495. 43. Hunter v. State, 40 N. J. 495, 523. Duplicity — Joindee of Offenses. § 397 felonies are charged in different counts in the same indictment, the court has a discretion to compel the prosecuting attorney to elect the counts he intends to rely upon and it is said that the court wUl not interfere unless the prisoner is embarrassed in his plea or challenges in consequence of the separate felonies charged in the one indictment.** So it is decided in an early case that where two distinct felonies are charged in different counts it is not a matter of legal right pertaining to the accused, that the State should be compelled to elect for which one of the offenses it will prosecute; nor will the court compel such election where the two counts are joined, in good faith, for the purpose of meet- ing a single offense. It is a practice sanctioned by common cus- tom, and by the law, to charge a felony in different ways, in dif- ferent counts of the indictment so as to provide for the different phases which the evidence may present upon the trial ; and where such is the bona fide purpose of the joinder of counts the court never exercises its power of quashing the indictment, or com- pelling an election.'** And it is said by the United States Supreme court " while recognizing as fundamental the principle that the court must not permit the defendant to be embarrassed in his de- fence by a multiplicity of charges embraced in one indictment and to be tried by one jury, and while conceding that regularly or usiially an indictment should not include more than one felony, the authorities concur in holding that a joinder in one indictment, in separate counts, of different felonies at least of 48. People v. Johnson, 2 Wheeler's counts are joined, in good faith, for Cr. Cas. (N. Y.) 361. the purpose of meeting a single of- 49. Mayo v. State, 30 Ala. 32; per fense. It is a practice sanctioned by WaI/KEE, J., who said: "The prin- common custom, and by the law, to ciple to be extracted from the au- charge a felony in different ways, ia thorities is said to be that where two different counts of the indictment, so distinct felonies are charged in dif- as to provide for the different phases ferent counts, it is not » matter of which the evidence may present upon legal right pertaining to the accused, the trial, and where such is the bona that the State should be compelled to fide purpose of the joinder of counts, elect for which one of the offices it the court never exercises its power of will prosecute ; nor will the court quashing an indictment, or compelling compel such election, where the two an election." 475 §397 Duplicity — Joindee of Offenses. the same class or grade, and subject to the same punishment, is not necessarily fatal to the indictment upon demurrer or upon motion to quash or on motion in arrest of judgment and does not, in every case, by reason alone of such joinder, make it the duty of the court, upon motion of the accused to compel the prosecutor to elect upon what one of the charges he will go to trial. The court is invested with such discretion as enables it to do justice between the government and the accused. If it be discovered at any time during a trial that the substantial rights of the accused may be prejudiced by a submission to the same jury of more than one distinct charge of felony among two or more of the same class, the court according to the established principles of crim- inal law, can compel an election by the prosecutor."^*" And in a case in Massachusetts it is said " this court has often held, that distinct felonies, if of the same general description, and if the mode of trial and the nature of the punishment are the same, may be charged in the same indictment, and may be tried together, unless the court shall direct the government, to proceed upon one count or set of counts only, if it sees any danger that the defendant will be embarrassed by the multiplicity of the charges against him, . . . And it has also been distinctly held, that whether the charges shall be tried separately or together is a mat- ter within the discretion of the presiding judge, and that if a gen- eral verdict of guilty is returned upon counts charging distinct offense, and no inquiry is made of the jury as to the counts upon which they found their verdict, the general verdict of guilty will apply to each count."^^ And it is a rule of the common law and also in those states where there are no statutory provisions to the contrary that where there are several counts in an indictment charging the defendant with more than one distinct and separate felony the court may in its discretion eithor require an election by the prosecutor as to the count upon which he wiU proceed or in 50. Pointer V. United States, 151 U. 51. Benson v. Commonwealth, 158 . 396, 403, 14 Sup. Ct. 410. Mass. 164, 166, 33 N. E. 384. 476 Duplicity — Joindee of Offenses. §398 a clear case quash the indictment.®^ So as a general rule where an indictment charges several felonies in distinct counts the court at the trial has a discretion in respect to compelling the district attorney to elect upon which count he will proceed and the de- cision of the court in regard thereto is not the subject of a writ of error or of a bill of exceptions.®^ § 398. Charging different misdemeanors. — Separate public offenses, where they are all misdemeanors of a kindred character, and charged against the same person, may generally be joined in separate courts in an indictment or information to be followed by one trial for all with a separate conviction and punishment for each, the same as though all such oflFenses were charged in sepa- rate indictments or informations and tried at different times.®* 52. state v. Blakeney, 96 Md. 711, 54 Atl. 614; State v. McNally and Myers, 55 Md. 559. 53. People v. Baker, 3 Hill (N. Y.), 159. See also McGregor v. State, 16 Ind. 9; Hunter v. State, 40 N. J. L. 523; State v. Banknight, 55 S. C. 353, 33 S. E. 451, 74 Am. St. Rep. 751. Compare Gardes v. United States, 87 Fed. 172, 30 C. C. A. 596. 54. United States. — United States V. Belvin, 46 Fed. 381; United States V. Nye, 4 Fed. 891. Kansas. — State v. Chandler, 31 Kan. 204. Maryland. — State v. Blakeney, 96 Md. 711, 54 Atl. 614. Mississippi. — Jones v. State, 67 Miss. Ill, 7 So. 220. Nebraska. — Little v. State, 60 Neb. 749, 84 N. W. 248, 51 L. R. A. — ; Hans v. State, 50 Neb. 150, 69 N. W. 838 ; Martin v. State, 30 Neb. 507, 46 N. W. 621; Burrell v. State, 25 Neb. 581, 41 N. W. 399. New Jersey. — Stephens v. State, 53 N. J. L. 245, 21 Atl. 1038; Stone v. State, 20 N. J. L. 404. Hexr Tork. — People v. Costello, 1 Den. 83. North Carolina. — State v. Mor- gan, 133 N. C. 743, 45 S. E. 1033; State V. Slagle, 82 N. C. 653. Texas.— Stebbins v. State, 31 Tex. Cr. 294, 20 S. W. 552. Virginia. — Mitchell v. Common- wealth, 93 Va. 775, 20 S. E. 892. Wisconsin. — State v. Gummer, 22 Wis. 441. In Michigan the doctrine that a person should not be subjected to trial for two separate and distinct of- fenses at one time, has been applied to misdemeanors. People v. Rohrer, 100 Mich. 126, 58 N. W. 661; per HooKEE, J., citing People v. Jenness, 5 Mich. 305; Tiedke v. Saginaw, 43 Mich. 64; People v. Aikin, 66 Mich. 460; People v. Jackman, 96 Mich. 269, 274. 477 §399 Duplicity — Joindek ov Offenses. So in an early case in New York it is declared that it is well settled law that several misdemeanors may be joined in the same indictment, and a conviction for all may take place at the same trial.*^ And this doctrine is asserted in other decisions in the same State.^* § 399. Where several acts may constitute offense. — Where acts of omission or commission are component parts or represent preliminary stages of a single transaction, to set them out is not to charge separate crimes.^^ And it is a general rule that wherp several acts go to constitute an offense an indictment charginff such acts where they are a part of the same transaction is not on this account duplicitous.®* So in a case in New York it is dp- 55. People v. Costello, 1 Den. (N. Y.) 90. 56. In cases of misdemeanor, pun- ishable by fine and imprisonment the prosecutor may join several distinct offenses in the same Indictment and try them at the same time. Kane v. People, 8 Wend. (N. Y.) 203. The joinder of several distinct mis- demeanors in the same indictment is not a cause for the reversal of the judgment on writ of error when the sentence is single, and is appropriate to either of the counts upon which the conviction was had. Polinsky v. People, 73 N. Y. 69, citing Kane v. People, 8 Wend. 203; People v. Eyn- ders, 12 Wend. 425; People v. Cos- tello, 1 Denio, 83 ; People v. Baker, 3 Hill, 159; People v. Liscomb, 60 N. Y. 589. 57. People v. Kane, 61 N. Y. Supp. 195, 632, 43 App. Div. 472, 14 N. Y. Crim. 316; per Jbnks, J., citing Boland v. People, 25 Hun, 427, af- firmed in 90 N. Y. 678; Reed v. People, 86 N. Y. 382; Woodford v. People, 62 N. Y. 128; Osgood v. People, 39 N. Y. 451. 58. United State*.— United States v. Cutajar, 60 Fed. 744. California. — People v. Egan, 116 Cal. 287, 48 Pac. 120. Colorado. — Adams v. People, 2.5 Colo. 532. Indiana Todd v. State, 31 Ind. 516. Iowa. — State v. McPherson, fl Iowa, 53. Iioniaiana. — State v. Parker, 42 La. Ann. 972, 8 So. 473. Hassachnaetta. — Commonwealth v. Curran, 119 Mass. 206. Miobigan. — People v. Paguin, 74 Mich. 34, 41 N. W. 852. Miasisalppi.— Clive v. State, 78 Miss. 661, 29 So. 516. MiwionrL— State v. Jones, 106 Mo. 302, 17 S. W. 366 ; Missouri v. Ames, 10 Mo. 743; State v. Palmer, 4 Mo. 4S3. 478 Duplicity — Joinder of Offenses. § 399 cided that where an offense may be committed by doing any one of several things the indictment may, in a single count, group them together and charge the defendant to have committed them all and a conviction may be had on proof of the commission of any one of the things, without proof of the commission of the others."® And it is declared in this connection that there are many substantive acts which in and of themselves may not be unlawful, but which are made so by statute, when done in a particular manner, or from particular motives. . . . The expletives only give criminal character to that act, and whether one, or more are used, the act remains single, and the penalty the same. If, by increasing the number of exple- tives, the legal character of the substantive act were changed or penalty increased, there might be some foundation for the asser- tion, that more than one offense was charged.®" So where a stat- ute makes two or more distinct acts committed with the same transaction indictable, each one of which may be considered as representing a phase in the same offense, the different acts may be coupled in one count and it is not regarded as duplicity thus Ifeliraska. — Aiken v. State, 41 An indictment charging the Neb. 263, 59 N. W. 888. forgery of a deed and of the ac- TXexr Jersey. — Farrell v. State, 54 knowledgment thereof charges but N. J. L. 416, 24 Atl. 723. one oflFense. Bennett v. State, 62 Ark. Ne-w Tork. — People v. Harris, 7 516. N. Y. Supp. 773. Good* obtained from one person Ohio. — Watson v. State, 39 Ohio, by the same false pretense, twice re- 123. peated on different days, constitute Pennsyl-vanixk — Commonwealth v. only one transaction, and is not a Mentzer, 162 Pa. 646, 29 Atl. 720. case for election. Beasley v. State, South Carolina. — State v. Smalls, 59 Ala. 20. 11 Shand. (S. C.) 262; State v. An- 59. Bork v. People, 91 N. Y. 13. derson, 3 Rich. (S. C.) 172. It is never necessary for the Texas. — Segars v. State, 35 Tei. people to prove all the allegations in Cr. 45. the indictment if those which are sup- TTtah. — People v. Hill, 3 Utah, 334, ported by the evidence constitute the 3 Pac. 75. crime charged therein. People v. Vermont. — State v. Morton, 27 Everest, 51 Hun (N. Y.), 19, 26, 3 N. Vt. 310. Y. Supp. 612, 20 N. Y. St. Rep. 456. 'Wisconsin. — Byrne v. State, 12 60. State v. Burgess, 40 Me. 594, Wis. 519. per Rice, J. 479 §399 DtrPLICITT JOINDEE OP OfPENSES. to join successive statutory phases of the same offense.'* And this rule is well settled ®*^ and is supported by numerous other decisions.®* So an indictment which, in one count charges the crime of selling liquor on Sun- day, and, in another, the crime of offering and exposing it for sale on Sunday, the description of the date, place, persons and goods sold or offered for sale, being identical in each count, is held not to charge two crimes, but different aspects of the single crime described by statute.®^ Since it is a rule that such acts may be charged in a single count without rendering the indictment defective for duplicity it naturally follows that an indictment is not defective in which there is a joinder in different counts of such acts.®* So an indictment for forgery in the first degree is held in New York not to be subject to objection by rea- son of the fact that in several counts following the first count, the same crime is charged in different forms, all based upon the same alleged forged deed.®^ And where one was indicted foi- forgery, 61. Commonwealth v. Hall, 23 Penn. St. 104. 61a. "It is a well-settled rnle of lavr that when a statute enunci- ates a series of acts, either of which separately or all together may con- stitute the offense, all of such acts may be charged in a single count, for the reason that notwithstanding each act may by itself, constitute the of- fense, all of them together do no more, and likewise constitute but one and the sam- offense. People v. Gusti, 113 Cal. 177, 45 Pac. 263; People v. Harrold, 84 Cal. 568, 24 Pac. 106; Flohr V. Territory, 14 Okla. 477, 486, 78 Pac. 565. 62. California. — People v. Tyler, 35 Cal. 553; People v. Frank, 28 Cal. 507; People v. Shotwell, 27 Cal. 94. Massaclhnsetts. — Commonwealth v. Coleman, 184 Mass. 198, 68 N. E. 220. New Jersey.— State v. Hill (N. J. L. 1906), 62 Atl. 936. Ne-w Yorb. — ^People v. Harris, 7 N. Y. Supp. 773. PennsylTania. — Commonwealth v. Soler, 15 Pa. Super. Ct. 520. 63. People v. Haren, 35 Misc. 590, 72 N. y. S. 205, N. Y. Laws 1896, c. 112, § 31. 64. Iowa. — State v. Trusty, 122 Iowa, 82, 97 N. W. 989. Ijonisiama. — State t. Scott, 48 La. Ann. 293, 19 So. 141. Missouri. — State v. Williams, 191 Mo. 205, 90 S. W. 448. New HampslilTe. — State T. Lin- coln, 49 N. H. 464. New Tork. — ^People v. Adler, 140 N. Y. 331, 35 N. E. 644. PennsylTania. — Commonwealth v. Carson, 166 Pa. St. 179, 30 Atl. 985. Texas. — Flynn v. State (Tex. Cr. 1904), 83 S. W. 206. 65. People v. Alderdice (N. Y. App. Div. 1907), 105 N. Y. Supp. 396. 480 Duplicity — Joindee of Offenses. § 400 and the indictment set out an instrument purporting to be a for- mal statement of an account for services to a county, with the affidavit of the claimant as required by law and the plaintiff in error demurred to each of the counts for duplicity, insisting that the bill or account, the signature to the affidavit, and the signature to the jurat or certificate, were different instruments within the meaning of the statute and that the forgery of each of them was a distinct offense, it was held that the demurrer was properly overruled and that the account and signatures were not separate instruments as they were all essential to the completion of the account before it could be properly presented to the board of supervisors.®® And where in charging the offense several acts, are stated as part of the same trans- action it is proper to refuse to compel an election between the counts.®'^ § 400. Different means or manner of committing offense — Single count. — ^Where an offense charged may be committed by two different means, its commission by both means may be charged in one count of an indictment, and proof of either will sustain the allegation.®* In such a case it is said that proof that any 66. Eosekrans v. People, 3 Hun Maine. — State v. Willia, 78 Me. 70, (N. Y.), 287, 5 T. and C. 467. 2 Atl. 848. 67. State v. WilliamB, 191 Mo. Hassaclmsetts. — Commonwealth v. 205, 90 S. W. 448. Brown, 80 Mass. 419. 68. United States. — Bridgeman Missouri. — State v. Montgomery, V. United States, 140 Fed. 577; 109 Mo. 645, 19 S. W. 221. United States v. Watkins, 3 Cranch New Jersey. — State v. The Mid- C. Ct. 545 ; United States v. Gordan, dlesex & Somerset Traction Co., 67 N. 22 Fed. 250. J. L. 14, 50 Atl. 354. Georgia. — ^Heath v. State, 91 Ga. New Tork. — Eead v. People of the 126, 16 S. B. 657. State of N. Y., 86 N. Y. 381 ; People Iowa. — State v. Blair, 92 Iowa, of the State of N. Y. v. Davis, 56 N. 28, 60 N. W. 486. Y. 951; Taylor v. People, 12 Hun, Kansas. — State v. Heives, 60 Kan. 212; People v. Everest, 51 Hun, 19, 765, 57 Pae. 959. 20 N. Y. St. E. 456, 3 N. Y. Supp. Louisiana. — State v. Buford, 52 612. Xa. Ann. 539, 26 So. 991. Ohio.— State v. Frieberg, 49 Ohio 481 § 400 Duplicity — Joindeb of Offenses. of the means were used proves the offense and that proof that all the means described were used proves no more, the penalty also being the same in each case.^* So where a statute provides that an offense may be committed in several different ways, one may be charged with the commission of such offense in any one of such ways, or he may be charged conjunctively, in the same count, with having committed the offense in all of the ways enumerated in the statute. This would only be charging one of- fense.^" In a case before the United States Supreme Court in which this question was raised in construing an indictment for counterfeiting in violation of the Federal statute,''* it was said by Mr. Justice Harlan, " The evil that congress intended to reach was the obtaining of money from the United States by means of fraudulent deeds, powers of attorney, orders, certificates, receipts or other writings. The statute was directed against certain de- fined modes for accomplishing a general object, and declared that the doing either one of several specified things, each having refer- ence to that object, should be punished by imprisonment at hard labor for a period of not less than five years nor more than ten years, or by imprisonment for not more than five years and a fine of not more than one thousand dollars. We perceive no sound reason why the doing of the prohibited thing, in each and all of the prohibited modes, may not be charged in one count, so that there may be a verdict of guilty upon proof that the accused had' done any one of the things constituting a substantive crime under the statute. And this is a view altogether favorable to an accused, who pleads not guilty to the charge contained in a single count; for a judgment on a general verdict of guilty upon that count will St. 585, 31 N. E. 881. Utah.— State v. Carrington, 15 Pennsylvania. — Commonwealth v. Utah, 480, 50 Pac. 526. Hall, 23 Pa. Super. Ct. 104. Vermont.— State v. Ferry, 61 Vt. Tezajb — ^Reum v. State (Tex. Cr. 624, 18 Atl. 451. App.), 90 8. W. 1109; Holman v. 69. State v. Haskell, 76 Me. 399. State, 90 S. W. 174 (Tex. Cr. App.) ; Thomas v. State (Tex. Crim. App.), "^O. State v. Wester, 67 Kan. 812. 26 S. W. 724. "^l- R. S., § 5421. 482 Duplicity — Joindee of Offenses. §401 be a bar to any further prosecution in respect of any of the matters embraced by it.^^ § 401. Same subject continued — Application of rule. — ^An indictment which in a single count charging the crime of grand larceny alleges that the property was taken by fraud and stealth with not be held insufficient upon an objection to the introduc- tion of testimony upon the ground that the indictment charges two separate and distinct offenses, or that the indictment is un- certain, and fails to charge larceny under the statute, or because the offense is charged to have been committed in the different ways in which the statute designates the same may be accom- plished.'^* And an indictment for forgery in the second degree, which, in a single count, alleges that the defendant forged an indorsement on a bank check, with the intent to defraud a per- son named, and offered the same to such person in payment for goods purchased, is not open to the objection that it charges two distinct crimes, namely, forgery and uttering, it being declerad that the allegation of uttering the check was simply the statement of a fact evidentiary of the intent to defraud essential to consti- tute the charge of forgery.^* So it has been held that where a murder may have been committed by different means, and it is doubtful which was employed, its commission by all may be charged in one count of the information, and proof of any one will sustain the allegation, but the means so charged in the same count of the information must not be repugnant.''^ And although it appears upon the face of the indictment that the acts set forth constitute several modes by which the defendant committed a single breach of the peace, if it also appears from the indictment that the acts, charged were committed at the same time and are parts of the same transaction, the charge is not subject to the ob- jecion of duplicity.''^ And a count in an information was held 72. Grain v. United States, 162 74. People v. Attman, 147 N. Y. U. S. 625, 636, 16 S. Ct. 952, 40 L. 473, 42 N. E. 180. Ed. 1097. 75. State v. Hugh OTSTeil, 51 Kan. 73. Flohr v. Territory, l4 Okla. 651, 33 Pae. 287. 477, 486, 78 Pac. 565. 76. State v. Matthews, 42 Vt. 547. 483 §402 Duplicity — Joiwdee of Offenses. not bad for duplicity which charged the defendant with selling and exchanging intoxicating liquors contrary to lawJ'^ §^ 402. Several counts stating offense — Different ways and means. — In an indictment several counts may be inserted alleg- ing the offense distinctly and separately, in various ways, to meet the evidence, and the court will not compel an election be- tween them on the trial.^® So in a case in New York where an indictment was objected to on this ground the court said, " It is now objected on behalf of the plaintiff in earor that the in- dictment is fatally defective because it charges two distinst felon- ies, one under the first section, and one under the third section of the statute. This objection is not well founded. All the counts are under the same statute, and relate to the same tran- saction. In such a case it matters not that the offense alleged to have been committed is charged in different ways in several counts for the purpose of meeting the evidence that may be ad- duced. And it matters not that the offence alleged in the different counts are of different grades, and call for different punish- 77. State v. Teahan, 50 Conn. 92. The court said : " The intention of the legislature is plain, which is to prevent the disposition of liquor for consideration. Hence an exchange, as well as a sale, is in terms prohibited. The intention of the pleader is equally plain — to charge one trans- action and one only. There is but one time and one place, and we think it was intended to charge but one act; but whether this act was a sale for cash or a sale in a broader sense by way of an exchange, the pleader not knowing alleged that it was both, so that proof of either would sustain the charge." Per Carpenter, J. 78. ITnited States.— United States V. Howell, 65 Fed. 402. Illinois. — Herman v. People, 131 111. 594, 22 N. E. 471, 9 L. E. A. 182. Indiana. — Engleman v. State, 2 Ind. 91. loxra. — State v. Baldwin, 79 Iowa, 714, 45 N. W. 297. Louisiana. — State v. Clement, 42 La. Ann. 583, 7 So. 685. Maryland.— State v. Bell, 27 Md. 675. Massachusetts. — Commonwealth v. Thompson, 159 Mass. 56, 33 N. E. 1111. New York. — People v. Dimick, 107 N. Y. 13, 14 N. E. 178; People v. Kellogg, 105 App. Div. 505, 94 N. Y. Supp. 617; Lonergan v. People, 6 Park. Cr. R. 209; Nelson v. People, 6 Park. Cr. R. 39; People v. Rice, 13 N. Y. Supp. 161; Kane v. People, 8 Wend. 203. 484 Duplicity — Joindee of Offenses. §402 ments.''® A count for burglary with an attempt to commit lar- ceny may be united with a count for larceny. So burglary and larceny, rape and an assault with intent to commit rape, larceny and receiving stolen goods, assault with intent to kill, and a sim- ple assault, may be united, and it matters not that the offences thus united, call for different punishments. ... So long as all the counts relate to the same transaction, as in this case, there can be no objection to the union of such counts in the same in- dictment."*" And in another case it is decided that it is often necessary to insert in one indictment many counts charging the crime in as many different ways, in order to meet the various phases of the case as developed by the evidence and after a gen- eral verdict if one count is sufficient, and others bad, the court will pronounce judgment upon the good count only, and if all are good, judgment will be rendered upon the count charging the highest offense.®^ In this connection it is held in New York that North Carolina. — State v. Howard, 129 N. C. 584, 40 S. E. 71; State V. Barber, 113 N. C. 711, 18 S. E. 575; State v. Harris, 106 N. C. 682, 11 S. E. 377; State v. Morrison, 85 N. C. 561. Texas. — ^Hughes v. State (Tex. Cr.), 60 S. W. 562. West Virginia. — State v. Shores, 31 W. Va. 491, 7 S. E. 413. 'Wisconsin. — ^Newman v. State, 14 Wis. 393. " The mle is, that although it is not proper to include separate and dis- tinct felonies in different counts of the same indictment, it is proper to state the offense in different ways in as many different counts as the pleader may think necessary. Lyons v. People, 68 111. 271. Although it is not proper to include separate and distinct fel- onies in different counts of the same indictment, it is allowable to state the same offense in different ways, it being understood that all the counts really relate to one transaction." Kotter V. People, 150 111. 441, 37 N. E. 932, per Justice Bakeb, citing Bennett v. People, 96 111. 602. A carefnl solicitor shonld always frame the indictment with as many counts as may be necessary to meet the different phases of the evi- dence. Orr V. State, 107 Ala. 37, 18 So. 142. 79. People v. Eynders, 12 Wend. (N. Y.) 425; People v. Baker, 3 Hill, 159; People v. Costello, 1 Denio, 83; Taylor \. People, 12 Hun, 213; Re- gina V. Trueman, 8 Carr. & P. 727; Wharton's Grim. Law, § 416. 80. Hawker v. The People, 75 N. Y. E. 489. See also People v. Emer- son, 53 Hun (N. Y.), 437, wherein tne above language is quoted. 81. State V. Ward, 61 Vt. 153, 17 Atl. 483. 485 § 403 Duplicity — Joindek of Offenses. the provisions of the New York Code of Criminal Procedure *^ abolishing all previously existing forms of pleading in criminal actions and providing that an indictment shall contain " a plain and concise statement of the act constituting the crime, withour unnecessary repetition" does not prohibit the charging of the offense in different forms in different counts and such an indictment is not subject to the objection that it charges more than one crime.®^ But an indictment charging two separate and distinct offences, is not within the meaning of the New York Code of Criminal Pro- cedure providing that " the crime may be charged in separate counts to have been committed in a different manner or by dif- ferent means, and where the acts complained of may constitute different crimes, such crimes may be charged in separate counts."** §! 403. Same subject — Application of rules. — In an indict- ment for murder the death of the murdered person may be laid in several counts as having been occasioned in different and incon- sistent modes.*** So where an indictment contains several counts, 82. §§ 273, 275. allegations were proper and within 83. People v. Eugg, 98 N. Y. 537. the provisions of the Criminal Code. The court said, "Nor is there any There is nothing in these provisions ground for the claim that the indict- which compels the pleader to confine ment charges more than one crime. the indictment to a single statement Although it contains different counts, of the facts where the proof is im- it merely states the commission of certain. The object of the pleading the same offense in different forms, is to inform the defendant of the so as to meet the evidence which crime alleged against him, and when might be presented upon the trial. this is done, without needless repeti- As there was no direct proof, by an tion, it cannot be urged that he has eye-witness of the commission of the not been fully advised of the charac- offense charged, and as it was con- ter of the crime for which he is in- neeted with the commission of other dieted. Per Miller, J. This case is crimes, it was entirely competent for followed in People v. Menken, 36 the pleader to allege in different Hun (N. Y.), 90. counts such facts as might, by possi- 84. People v. Harmon, 49 Hun (N. bility, be presented upon the trial, Y.), 558, see also People v. O'Doh- and as the proof as to these could nolf nell, 46 Hun (N. Y.), 358. be anticipated with exactness, such 85. Smith v. Commonwealth, 21 486 Duplicity — Joindee of Offenses. § 403 each charging the murder of the same person, but in a different manner, the State cannot be compelled to elect between such counts.*® And where in one count of an information for murder the accused was charged with having purposely, and of his de- liberate and premeditated malice, killed the deceased, and in two other counts the killing was alleged to have been done in an at- tempt to rob the deceased it was held, to charge but one offense, and a motion to require the State to elect between the several counts of the information was held to be properly overruled.*'' And where an indictment for murder contained four coimts and in the first, the mortal wound was charged to have been given with a dagger; in the second with a dirk, made of iron and steel; in the third, with a knife; and in the fourth with a dirk knife, and there was also in the different counts a variation in the description of the injury charged to have been inflicted and there was verdict guilty on the four counts, it was held, that the four counts charged but one offence, and that the verdict was good, the mode of death being substantially the same.**. Again in an indict- ment charging the use of the mails to defraud, allegations in each count respecting the artifices that were designed to give one under- standing of the scheme to one class of people and another under- standing to another class, neither class being given the true mean- ing and each class being deceived and defrauded by the same arti- fices do not make out two separate schemes to defraud, but a single Gratt. (Va.) 809. The court said: sert as many counts as will be neces- " It is a well-settled principle of sary to provide for every possible criminal pleading and practice, that contingency in the evidence. If the several modes of death, inconsistent mode of death is uncertain, he may with each other, may be set out in and ought to state it in different the same indictment. This grows out counts, in every possible form to cor- of the very necessity of the case, respond with the evidence at the trial The indictment is but the charge or as to the mode of death." Per accusation made by the grand jury Chkistian, J. with as much certainty and precision 86. Merrick v. State, 63 Ind. 327. as the evidence before them will war- 87. Harry Hill v. State of Ne- rant. In many cases the mode of braska, 42 Neb. 503, 60 N. W. 916; death is uncertain, while the homi- Furst v. State, 31 Neb. 403. cide is beyond question. Every 88. Donnelly v. State, 20 N. J. L. cautious pleader, therefore, will in- 464. 487 §404 Duplicity — JoiiirDEii of Offenses. scheme calculated to entice in either view and such an indict- ment is not bad for duplicity.®® § 404. Different offenses resulting from same act. — It is a general rule that when two or more offenses result from the same criminal act or transaction such offenses may be charged in differ- ent counts without rendering the indictment defective for de- plicity.®"* It must be conceded that when two or more offenses arise from a single act or transaction, or are closely related, they may be joined in one count.® ^ And if two or more offenses 89. Gourdain v. United States, 154 Fed. 453 (C. C. A.). 90. Viiited States. — ^United States V. MacAndrews & Forbes, 149 Fed. 823. Alabama. — Grimes v. State, 105 Ala. 86, 17 So. 184. Arkansas. — Baker v. State, 4 Ark. 56. Illmois. — Thompson v. People, 125 111. 256, 17 N. B. 749. Indiana. — ^McCullough v. State, 132 Ind. 427, 31 N. E. nl6. Iowa. — State v. Trusty, 122 Iowa, 82, 97 N. W. 989. Kansas. — State v. Blakesly, 43 Kan. 250, 23 Pac. 570. Lonisiana. — State v. Young, 104 La. 201, 28 So. 984; State v. Cook, 42 La. Ann. 860, 7 So. 64. Maine. — State v. Porter, 26 Me. 201. Michigan. — People v. Summers, 115 Mich. 538, 73 N. W. 818. Nebraska. — Blodgett v. State, 50 Neb. 121, 69 N. W. 751. Ne'w Hampshire. — State v. Lin- coln, 49 N. H. 464. New York. — People v. Wilson, 151 N. Y. 403, 45 N. E. 862; People V. Davis, 56 N. Y. 95; People v. Trainer, 57 App. Div. 422, 68 N. Y. Supp. 263, 15 N. Y. Cr. Rep. 333; People V. Callahan, 29 Hun, 580; People V. Rose, 39 N. Y. St. R. 291; People V. Kelly, 3 N. Y. Cr. R. 272; People V. Crotty, 9 N. Y. Supp. 437. Pennsylvania. — Commonwealth v. Church, 17 Pa.' Super. Ct. 39. Rhode Island. — State v. Murphy, 17 R. I. 698, 24 Atl. 473, 16 L. E. A. 550. Sonth Carolina. — State v. Nel- son, 14 Rich. L. 169. Texas. — ^Martinez v. State (Tex. Cr. 1907), 103 S. W. 930. Utah. — State v. Carrington, 15 Utah, 480, 50 Pac. 526. Virginia. — Speere v. Common- wealth, 17 Gratt. 570. It mnst be conceded that when two or more offenses arise from a single act or transaction, or are closely related, they may be joined in one count. Commonwealth v. Hall, 23 Pa. Super. Ct. 104. 91. Commonwealth v. Hall, 23 Pa. Super. Ct. 104. In New York the effect of the provision of sectioa 279 of the Code of Criminal Procedure that " where the acts complained of may consti- 488 Duplicity — Joindee of Offenses. § 405 from part of one transaction, and are of such a nature that a de- fendant may be guilty of both or all the prosecution will not, as a general rule, be put to an election. The right of demanding an election, and the limitation of the prosecution to one offense, is confined to charges which are actually distinct from each other, and do not form parts of one and the same transaction.®^ Election between counts cannot be required on the ground that distinct offenses are charged where they are committed by the same acts at the same time and the same testimony must be relied on for con^ viction.®* §1 405. Same subject — Application of rule — Joinder of counts for larceny and other offenses. — ^Robbery and larceny of the same articles of personal property from the same person and at the same time and place may be charged in different counts in the indictment, one count charging the taking to have been by violence and the other without.®* And there may be a joinder of counts for burglary and larceny.*^ And where counts for lar- ceny and obtaining the same goods by burglary are joined it is tute different crimes such crimes may People v. Ollalley, 52 App. Div. (N. be charged in separate counts," con- Y.) 47. Under these provisions of stituting an exception to the provi- the Code an indictment is proper sion of section 278, that " the indict- which sets forth in separate counts ment must charge but one crime," is two or more offenses of the same to permit a continuance of the former nature, based upon the same or a con- practice of joining different crimes tinuous set of facts either of which by separate counts when they are re- offenses makes the accused guilty of lated to the same transaction. People the same crime. People v. Adler, 140 V. Wilson, 151 N. Y. 403, 45 N. E. N. Y. 331, 35 N. E. 644. 862, aff'g 7 App. Div. 326. The Ian- 92. Herman v. People, 131 111. guage of § 279 of New York Code 594, 602, 22 X. E. 471; Goodhue v. Crim. Proc. when properly construed People, 9''- 111. 51; MiUer v. State means simply that where two or (Xeb. 1907), 111 N. W. 637. more offenses of the same nature are 93. People v. Sweeney, 55 Mich, based upon the same or a continuous 586, 22 N. W. 50. set of facts, either of which offenses 94. People v. Callahan, 29 Hun makes the accused guilty of the same (N. Y.), 580. crime, they may be charged in sep- 95. Alabama. — ^Bowen v. State, arate counts in the same indictment. 106 Ala. 178, 17 So. 335. 489 405 Duplicity — Joindee of Offenses. decided that it is not necessary that it should affirmatively appear in the indictment, or either count thea-eof , that the goods obtained by the burglary are the same goods mentioned as being the sub- ject of the larceny. It is sufficient, when the indictment is as- sailed, that the contrary does not affirmatively appear.^* In Eng- land it was also held in an early case that it was proper to join in the indictment a count for feloniously stealing property, with a count for feloniously receiving the same or any part thereof, knowing it to have been stolen.®^ And it has been generally de- cided that an indictment may properly charge larceny in one count and the receiving of stolen goods in another and in such a ease the State will not be required to elect on which count it will proceed.'* So the receiving and concealing of a specified stolen article may be distinct acts yet they are necessarily parts Arkansas. — Baker v. State, 4 Ark. 56. Colorado. — ^Parker v. People, 13 Colo. 155, 21 Pac. 1120, 4 L. E. A. 803. Indiana. — McCullough v. State, 132 Ind. 427, 31 N. E. 1116. Missonri. — State v. Moore, 121 Mo. 514, 26 S. W. 345. Pennsylvania. — Shutte's Appeal, 130 Pa. St. 272, 18 Atl. 635; Com- monwealth V. Church, 17 Pa. Super. Ct. 37. Sonth Carolina. — State v. Nel- aon, 14 Rich. L. 169. But see State v. Smith, 2 N. D. 515, 52 N. W. 320. 96. McCallaugh v. State, 132 Ind. 428, 31 N. E. 1116. 97. People v. Wilson, 151 N. Y. 403, 45 N. E. 862, citing Reg. v. Bee- ton, 2 C. & K. 960. 98. Alabama. — Orr v. State, 107 Ala. 35, 18 So. 142. Georgia — Johnson v. State, 61 Ga. 212. Illinois. — ^Andrews v. People, 117 111. 195, 7 N. E. 265; Bennett v. People, 96 111. 602. Indiana. — Goodman v. State, 141 Ind. 35, 39 N. E. 939; Kennegan v. State, 120 Ind. 176, 21 N. E. 917. Kansas. — State v. Blakesly, 43 Kan. 250, 23 Pac. 570. Kentucky. — Upton v. Common- wealth, 14 Ky. Law Rep. 165, 19 S. W. 744; Sanderson v. Commonwealth, 11 Ky. Law Rep. 341, 12 S. W. 136. Maine. — State v. Simpson, 45 Me. 608. Missonri. — State v. Richmond, 186 Mo. 71, 84 S. W. 880; State t. Gray, 37 Mo. 464. New York. — People v. Baker, 3 Hill, 159. North Carolina. — State v. Speight, 69 N. C. 72. Tennessee. — ^Hampton v. State, 8 Humph. 69. Virginia. — Dowdy t. Commo*- wealth, 9 Gratt. 727. 490 Duplicity — Joindee of Offenses. § 406 of the same transaction.®® Again separate counts for burglary, larceny and receiving stolen goods respectively may be joined in the same indictment when they are all founded upon the same transaction and the acts charged relate to the same property.^ And counts for lai'ceny and embezzlement may be joined in the same indictment ; and where they relate to the same transaction it is not error to refuse to compel the prosecutor to elect upon which coimt he would proceed.^ §' 406. Same subject — Further application of rule. — Counts for embezzlement and for obtaining the same money by false pre- tenses may be joined in the same indictment where they relate to the same transaction.^ And an indictment may charge in separate counts the forging by defendant of a written instrument set forth, and the uttering on the same date and at the same place of such instrument.* So an information may charge, in different counts the obtaining of a note by false pretenses, and a conspiracy to commit that crime, founded on the same transaction.^ A charge of malpractice against an attorney and counselor at law may also be joined with a prosecution for a contempt of court where both charges involve a single transaction.^ This rule has also been frequently applied in the case of indictments for procuring an 99. Keefer t. The State, 4 Ind. 7 App. Div. (N. Y.) 535, 40 N. Y. 246. The court said : " By the stat- Supp. 243. ute, the nature of the crime and the 2. State v. Porter, 26 Mo. 201. punishment are the same. The fact 3. State v. Lincoln, 49 N. H. 464. of his being charged with two acts, 4. People v. Adler, 140 N. Y. 331, which together make up and are but 35 N. E. 644; see also Baker v. State, parts of the same transaction, could 4 Ark. 56; State v. Zimmerman, 47 not mislead or embarrass the defend- Kan. 242, 27 Pac. 999; Johnson v. ant in making his defense." Commonwealth, 12 Ky. Law. Rep. 1. People V. Wilson, 151 N. Y. 442, 14 S. W. 492; State v. Murphy, Rep. 403, 45 N. E. 862, aff'g 7 App. 17 R. 1. 698, 24 Atl. 473, 16 L. R. A. Div. 326. See also Thompson v. 550. People, 125 lU. 256, 17 N. E. 749; 5. People v. Summers, 115 Mich. People V. Rose, 39 N. Y. St. R. 291; 538, 73 N. W. 818. State V. Woodard, 38 S. C. 353, 17 6. Blodgett v. State, 50 Neb. 121, S. E. 135. But see People v. Kerns, 69 N. W. 751. 491 §406 Duplicity — Joindee of Offenses. abortion and miscarriage.'' And it is also applicable where an indictment charges in separate counts the offense of kidnapping and also the offense of abducting a female for the purpose of pros- titution.* Likewise, an indictment containing two counts, one of which charges the defendant with rape and the other with car- nal knowledge of a female under a certain age, is not demurrable for duplicity, since there is but one unlawful act charged, and the indictment is thus framed to meet the different phases in which the evidence might present the offense.* And an indictment in two counts, the first charging the crime of rape committed upon a child under the age of fifteen years, and the second charging the same crime upon the same person, who is alleged to be naturally imbecile, is not had for duplicity, and the State cannot be re- quired to elect upon which count it will proceed to trial. '^'' And it is also held that one may be charged in the same count with rape and bastardy,^^ and with keeping and knowingly permitting his house to be kept as a disorderly house,^^ and likewise an in- dictment may charge in different counts the offense of keeping a room for gambling purposes and that of allowing a room or table to be used for such purposes. ^^ And the offenses of theft and of illegally branding and marking an animal may be joined in dif- ferent counts.^* Again, there may be a joinder in an indictment of the charges of doing an act with the intent of committing a cer- tain offense and of the actual commission of such offense.-'^ 7. People V. Davis, 56 N. Y. 95; 13. People v. Trainer, 57 App. State V. Carrington, 15 Utah, 480, 50 Div. (N. Y.) 422, 68 N. Y. Supp. 263, Pac. 526. 15 N. Y. Cr. Rep. 333, decided under 8. Mason v. State, 29 Tex. App. 24, New York Code Cr. Proc, § 279. 14 S. W. 71. 14. Welhausen v. State, 30 Tex. 9. Grimes v. State, 105 Ala. 86, 17 ^pp, 263, 18 S. W. 300. So. 184; State v. Houx, 109 Mo. 654, jg Alabama.-Walker v. State, 19 S. W. 35. See also Jackson v. g^ ^,^_ ^^ So. 83. State, 91 Wis. 253, 64 N. W. 838. 10. State V. Trusty, 122 Iowa, 82. California—People v. De la 97 N. W. 989. Guerra, 31 Cal. 459. 11. Commonwealth v. Lewis, 140 Iowa.— State v. Hull, 83 Iowa, Pa. St. 561, 21 Atl. 501. 112> 48 N. W. 917. 12. Willis V. State, 34 Tex. Cr. Kansas.— State v. Hodges, 45 148, 29 S. W. 787. Kan. 389, 26 Pac. 676, followed in 493 Duplicity — Joindee of Offenses. § 407 § 4:07. Continuous acts as one offense. — ^Where an offense con- sists of several distinct acts, which are in fact to be construed when taken together as one continuous act, such acts may be charged in an indictment without rendering it duplicitous.^® So under a statute providing that if an officer intrusted by law to collect money for a county shall fail or refuse to pay over all moneys so eoUected when required, he shall, if the amount equal a specified sum, be punished by confinement in the penitentiary, it has been held that an indictment which charges a clerk of the district court with failure to pay over a large number of jury and witness fees, amounting to several thousand dollars, is not defec- tive as charging a number of offenses in one count, because the fees were collected by him at various times in small amounts, nor because part of it was collected during each of three different appointments under which he acted in discharge of his official duties.-^'' And in another case it is held that an information which charges that defendant feloniously made, forged and coun- terfeited a certain bank check, and then and there unlawfully ut- tered and published it as true, states but one continuous act with reference to the same instrument, and hence is not void for du- plicity or on the ground of charging more than one crime.^^ State V. Emmons, 45 Kan. 397, 26 Kansas. — State v. Komstett, 62 Pac. 679. Kan. 221, 61 Pac. 805. Massachusetts.— Commonwealthv. Kentucky.— Louisville & Jeffer- Tack, 20 Pick. 356. g^^ ^^^.^^ q^ ^ Commonwealth, 104 New Hampshire.— State v. Ayer, ^^ ^^6, 47 S. W. 877; Common- 23 N. H. 301. wealth v. Duff, 87 Ky. 586, 9 S. W. Tennessee.— Davis v. State, 3 g^g^ ^^ ^ Law E. 617. Caldw. 77. Virginia.— See Spears v. Com- Massachusetto.— Commonwealthv. monwealth, 17 Gratt. 570. ^^^' ^ Mass. 426. 16. United States. — ^United States Washington. — State v. Newton, V. Byrne, 44 Fed. 188. 29 Wash. 373, 70 Pac. 31. Colorado. — ^Adams v. People, 25 Colo. 532, 55 Pac. 806. 17. Adams v. People, 25 Colo. 532, Connecticut. — State v. Falk, 66 55 Pac. 806. Conn. 250, 33 Atl. 913. Iowa. — Zumhoff v. State, 4 G. 18. State v. Newton, 29 Wash. Greene, 526. 373, 70 Pac. 31. 493 407 Duplicity — Joinder of Offenses. Again, where one was indicted for the offense of retailing intox- icating liquors by the glass or dram in violation of law, it was decided that the charging that the defendant had retailed twenty glasses or drams to divers persons at divers times did not present more than one offense.^'' So, in a case in Iowa, it is decided that an information charging that defendant " did unlawfully sell beer to persons unknown," is in effect to charge one sale to sev- eral persons jointly, and hence, not bad for duplicity under an ordinance making each separate act of selling an offense. '''' And an indictment under the statute which charges the keeping and maintaining of a tenement for the illegal sale and keeping of in- toxicating liquors on a certain day " and on divers other days and times between that day and the day of the finding of this indict- ment " is not bad for duplicity.^ ^ So in the case of a complaint for cruelty to animals in which one count charged the defendant 19. Zumhoff V. State, 4 G. Greene (Iowa), 526. The court said, after referring to the provision of the Code that an indictment must present but one public offense : " The offense presented by the indictment in the case is no departure from the above section. It charges but one public of- fense, and that is ' the retailing of intoxicating liquors by the dram.' It matters not whether the defendant retailed one or twenty drams, the of- fense is still the same and in viola- tion of the same section of the Code. In the one case a mild penalty would be called for and in the other a heavier fine, or both fine and im- prisonment according to the extent and flagitious character of the of- fense. If long continued and under atrocious circumstances, the severest penalty of the law should be enforced. The indictment in this case alleges the offense to have been committed as a continuous traffic 'on divers occa- sions, to divers persons,' and still it presents only the one offense; the re- tail of ' intoxicating liquors by the dram.' The offense charged is of a continuous character, carried on from day to day, and although the unlaw- ful traffic is alleged to have been con- tinued for several days or weeks prior to the commencement of the prosecution, it must still be regarded as but the one offense, made the more enormous by its long continuance, and requiring the more exemplary punishment." Per Gbeene, J. See also State v. Stinson, 17 Me. 154. Alleging a sale on a day cer- tain and divers other days does not vitiate as charging more than one offense. State v. Kobe, 26 Minn. 148 ; Osgood V. People, 39 N. Y. 449; People V. Adams, 17 Wend. (N. Y.) 475. 20. State v. King, 37 Iowa, 462. 21. Commonwealth v. Dunn, 111 Mass. 426. 494 Duplicity — Joindee of Offenses. §408 with overworking certain oxen from the first to the fourteenth day of a certain month and another count charged him with neglect- ing to provide them with proper food and shelter for the same time, it was held that each count charged but a single offense, and properly charged it as a continuing one.^^ §1 408. Same subject continued. — Where several acts are charged and each act is a distinct offense, and not one of a series of acts forming a part of a single transaction, it has been decided that it is reversible error to overrule a motion to compel the State to elect on which transaction it would rely.^* So, where on each day on which an act is done is under the statute a separate of- fense, is committed, a series of such acts should not be charged in one count as a continuing offense, and where this is done it is proper for the court to sustain a motion to quash the indictment or information.^* So it has been decided that an information is bad for duplicity which charges in a single count that on a certain date and divers days between that and a subsequent date, the defendant did publicly and privately open, set on foot and carry on a lottery, where, under the statute creating and defining the offense, each day the lottery is carried on constitutes a separ- ate and distinct crime.^^ And where a statute forbid the sale of cotton futures and provided that " each day such business is car- ried on or kept shall constitute a separate offense," it was held that an indictment thereunder which charged in one count that the accused did on a day stated " and on each succeeding day thereafter " until another specified date, " conduct, carry on and transact a business, commonly known as dealing in futures in cot- 22. State v. Bosworth, 54 Conn. 1, and which may be continued from day 4 Atl. 248, wherein it is said: " The to day, may be so alleged." Per Cak- gist of the offense is cruelty to ani- pentee, J. mals. That may consist of over-work- 23. State v. Jamison, 110 Iowa, ing, under-feeding, or depriving of 337, 81 N. W. 594. proper protection, or all these ele- 24. State v. Dennison, 60 Neb. 192, ments may combine and constitute 82 N. W. 628. the offense. But aside from this, all 25. State v. Dennison, 60 Neb. 192, offenses involving continuous action, 82 N. W. 628, citing State v. Pischel, 495 §408 Duplicity — Joinder of Offenses. ton," was bad for duplicity.^® And it has been decided that an indictment for incest, charging the criminal act to have been committed continuously through a specified period of years, is to be regarded as charging several distinct offenses, and to be bad for duplicity.^ ^ 16 Neb. 490; Smith v. State, 32 Neb. 105; Wendell v. State, 46 Neb. 823, 65 N. W. 884; Barnhouse v. State, 31 Ohio St. 39; State v. Temple, 38 Vt. 37; People v. Hamilton, 101 Mich. 87, 59 N. W. 401. 26. Scales v. State, 46 Tex. Cr. 296, 81 S. W. 947, 66 L. R. A. 730. The court said : " In this indictment, the separate days are not set out in distinct counts, but it seems that the attempt was here made to charge a separate offense for each day in one count. We believe tnat the separate occasions should be set out in dis- tinct counts, and the dates and proof should correspond with some degree of particularity, so that in case of conviction or acquittal, appellant might be secure in his right against being placed in jeopardy again for the same offense. In our opinion the indictment is vicious in the respect pointed out. And being so it was not cured by the court confining the prosecution to one day." 27. Barnhouse, 31 Ohio St. 39. This indictment was upon a statute providing that " if any brother and sister, being of the age of sixteen years or upward, shall have sexual intercourse together, having knowl- edge of their consanguinity," they shall be deemed guilty of a misde- meanor. The court said : " A single act of sexual intercourse, where the other conditions exist, is all that is required under the statute to com- plete the offense. The indictment therefore in the present case, can only be regarded as charging a series of offenses committed within the period specified in the indictment." Per White, J. See also State v. Temple, 38 Vt. 37, wherein the court says in this connec- tion : " Charging in one count a series of distinct offenses, each merit- ing a separate penalty or punishment, with a continuando or as committed at divers days and times between certain dates is certainly not in ac- cordance with the general principles of criminal pleading, and we are re- ferred to no authority showing that it is permitted in offenses of this kind, or in any analogous cases. As adultery and incest are not criminal by the municipal laws of England, and have not been for about two hun- dred years, no precedents of indict- ments for these particular offenses can be expected to be found in the English books. Nor has any case been cited, either English or Ameri- can, of an indictment in this form for several distinct offenses in one count. No satisfactory reason is perceived why this case should not be subject to the general rule of criminal plead- ing which forbids putting the accused on trial for a multitude of offenses charged in a single count. The same reason exists for departing from this 496 Duplicity — Joinder of Offenses. •i09 § 409. Offenses of different degree or grade. — Offenses of the same character, though differing in degree, may be united in the same indictment, and the prisoner tried on both at the same time, and on the trial may be convicted on the one and not on the other.^® It is often the case that one felony of considerable mag- nitude may include within itself other offences of less magnitude, and then all may be charged in one count, as, for instance, the rule in case of an indictment for as- sault and battery repeated upon the same person as in this case. An in- dictment for assault and battery on divers days and times covering a period of two years, would certainly be a novelty. The uncertainty and embarrassment in the mind of the re- spondent as to what he was called on to meet, would be the same in this case as in that. How can it be ascer- tained after verdict of guilty upon this indictment, of how many offenses the respondent is convicted. It is true in offenses of this character the evidence might be not positive and direct to the commission of the of- fense on any certain day or occasion, it might be of a general character embracing a considerable period of time; for instance, the admission of the respondent testified to by Button, in this case, that the respondent and the said Amy had been living to- gether as man and wife would be ad- missible. Neither this uncertainty in the proof as to the particular day and occasion when the offense was committed, nor the fact that it nec- essarily tended to prove more than one offense, would be any objection to the evidence, but It is no reason why the respondent should be put on trial for more than one offense charged in one count, nor any reason why the offense should not be charged in the indictment with legal certainty as to time and place. We think the count in question regularly should have charged but one offense, and that the law does not warrant the government in putting the respondent on trial for the multitude of offenses therein alleged." Per Peck, J. 28. Alabama. — ^Henry v. State, 33 Ala. 339. Arkansas. — Baker v. State, 4 Ark. 56. Colorado. — Kelly v. People, 17 Colo. 130, 29 Pac. 805. Georgia. — Harris v. State (Ga. 1907), 57 S. E. 937; Sims v. State, 110 Ga. 290, 34 S. E. 1020; Lampkin V. State, 87 Ga. 516, 13 S. E. 523; Long V. State, 12 Ga. 293. Kansas. — State v. Pryor, 53 Ean. 657, 37 Pac. 169. Iionisisna. — State v. Parker, 42 La. Ann. 972, 8 So. 473; State v. Smith, 41 La. Ann. 791, 6 So. 623; State V. Stouderman, 6 La. Ann. 286. Maine. — State v. Hood, 51 Me. 363. Massaclmsetts. — Commonwealth v. Clark, 162 Mass. 495, 39 N. E. 280; Commonwealth v. McLaughlin, 12 Cush. 615. 497 32 §409 Duplicity — Joindee of Offenses. offense of murder in the first degree, the greater offense, may be charged in one count of an indictment or information, although, by so doing several smaller offenses are also charged in the same count. And it is decided that in all cases an offense may be set forth in a single coujit of an information, although such offence may include the smaller offence, and although an attempt to com- mit the principal offence.^® So in a case in Tennessee it is said Michigan. — ^People v. Sweeney, 55 Mich. 586, 22 N. W. 50. Montana.— Territory v. Milroy, 8 Mont. 361, 20 Pac. 650. "Sevr Hampshire. — State v. Gor- ham, 55 N. H. 163. Neir York. — People v. Wright, 136 N. Y. 626, 32 N. E. 629; People V. McCarthy, 110 N. Y. 309, 18 N. e. 128; Hawker v. People, 75 N. Y. 487; People V. Kellogg, 105 App. Div. 505, 94 N. Y. Supp. 617; People v. Trainor, 57 App. Div. 422, 68 N. Y. Supp. 263; People v. Emerson, 53 Hun, 437, 6 N. Y. Supp. 274 ; compare People V. Van Home, 8 Barb. 158. Ohio. — See State v. Inskeep, 49 Ohio St. 228. Oklahoma. — Berysinger v. Terri- tory, 15 Okla. 386, 82 Pac. 728. Pennsylvania. — Commonwealth v. Lewis, 140 Pa. St. 561, 21 Atl. 501. Tennessee. — Foute v. People, 15 Lea, 715. Texas. — Reagan v. State, 28 Tex. App. 227, 12 S. W. 601 ; Akin v. State (Tex. App.), 12 S. W. 1101; Waddell V. State, 1 Tex. App. 720, citing and approving Weathersby v. State, 1 Tex. App. 643. But see State v. Marcks, 3 N. D. 532, 58 N. W. 25, decided under Dak. Comp. Lans. 8 7244, providing that only one oflFense may be charged in an indictment. An indictment is good, charg- ing an offense in different ways in several counts but all under the same statute and relating to the same transaction, but it matters not that the offense alleged in one count is of a different grade from that alleged in another, and calls for a, different punishment. Hawker v. People, 75 N. Y. 487. A single connt may allege all the circumstances necessary tn constitute two different crimes where the offense described is a complicated one, comprehending in itself circum- stances each of which is an offense; and a respondent thus charged with a greater offense may be convicted of one of lesser magnitude contained within it. Thus any indictment charging the breaking and entering of a dwelling-house with intent to steal, will sustain a conviction of entering without breaking, with in- tent to steal. L'pon an indictment for assaulting and obstructing an offi- cer in the service of process, a. convic- tion may be had for a single assault and battery. Such indictments are not bad for duplicity. State v. Gor- ham, 55 N. H. 163; per Fosteb, .1. 29. State v. Hodges, 45 Kan. 390, 26 Pac. 676; per Valentin^e, J. 498 Duplicity — J oindeb of Offenses. § 410 in this connection that, " It has long been settled in this State, in accord with authority, that different offences punished by differ- ent degrees of severity, differing only in degree, and belonging to the same class of crimes, may be united, and it is not error for the court below to refuse to quash for this reason, or to refuse to compel the prosecutor to elect on which of the charges he would proceed." *" § 410. Offenses of different degree or grade — Application of rule. — There may be a joinder in an indictment of counts for murder and manslaughter.*^ So in a case where the first count was for murder and the second for manslaughter, the court said : " As murder includes manslaughter, the second count was un- necessary, though it did not vitiate the indictment. The district attorney was at liberty to proceed to trial upon both counts of the indictment at the same time; and he could not properly be re- quired to elect upon which count he would rely so long as it ap- peared from the evidence that the two counts related to the same transaction."*^ And where, by statute, there are different de- grees of manslaughter, an indictment may contain separate counts, one charging the defendant with manslaughter in the first degree and the other with manslaughter in the second degree.** And 30. Foute V. state, 15 Lea. mencement of the trial defendant's (Tenn.) 715. counsel asked the court to instruct 31. Henry v. State, 33 Ala. 389; the district attorney to elect which Baker v. State, 4 Ark. 56. count he would proceed on, and at 32. Kelly v. People, 17 Colo. 130, the close of the evidence for the 29 Pae. 805. Per Mr. Justice Eluott. prosecution, and again upon all the 33. People v. McCarthy, 110 N. Y. evidence, that he be directed to elect on 309, 18 N. E. 128. In this case the which count a conviction was asked, indictment in two separate counts These requests were denied and it was charged the defendant with man- held, no error; that if more than one slaughter in the first degree, com- crime was charged, except as per- mitted under different circumstances; mitted by the Code of Criminal Pro- in a third count the charge was man- cedure (§ 279), the only remedy was slaughter in the second degree by dis- by demurrer (§§ 324, 331) ; but that, charging his pistol " in a culpably in any event, such a request is an negligent manner " in the direction appeal to the discretion of the court, of D., the person killed. At the com- and a denial of the application can- 499 § 410 Duplicity — Joindee of Offenses. where the indictment contained two counts, one charging deliber- ate and premeditated homicide, the other that defendant killed the deceased without the design to effect death, but while engaged in the attempt to commit another crime, it was held that a refusal of the court on the trial to compel counsel for the prosecution to elect on which count they would proceed was not error.^* So the fact that an indictment includes a count for assault with intent to murder and one for aiming and pointing a pistol at another is held not to render it so defective that it should be quashed on motion ore tenus.^^ Again a count for a felonious assault and a count for the same transaction described as a common assault, may be joined in the same indictment.** So a count for the statutory offense of assault with intent to do great bodily harm may be joined with one for the common law offense of assault with intent to kill and murder, though the penalties be different, where both are felonies defined by statute, and one includes the other, so that evidence applicable to the greater applies to the less.*'' Kob- bery by force and robbery by intimidation- are also two grades of the same offense, and both grades may be charged in the same count.** Likewise an indictment for rape may charge the princi- pal offense in one count and an assault with intent to commit such offense in another, and is not subject to demurrer on the ground that two offenses are charged.** So it is said that rape neces- sarily includes an assault and battery, and though in an indict- ment for an assault with intent to commit a rape it is not neces- sary to allege or prove a battery, yet a battery may be one of the facts by which the offense is made out, in which case it consti- tutes a part of the offense, though not essential, and if alleged there is no duplicity.*" And where an indictment contained two not be successfully assigned as error. 13 S. E. 523; Long v. State, 12 Ga. 34. People v. Wright, 136 N. Y. 293. 626, 32 N. E. 629. 39 p^ ^ g^ ^^, 35. Williams v. State, 72 Ga. 180. ^,^^^^^ ^ g,^^^^ /^ ^^ ^25; State v. 36. Commonwealth v. McLaughlin, «„+. . ^.,, ,,,, , ... _., _ , ,0^1. ,1.^ ^ ^,= 6 ' button, 4 Gill. Md. 494; Silas Cook 12 Cush. (Mass.) 615. 37. People v. Sweeney, 55 Mich. 586, 22 N. W. 50. 40. Commonwealth v. Thompson, V. State, 24 N. J. L. 843. 40. Common 38. Sampkin v. State, 87 Ga. 524, 116 Mass. 346. 500 Duplicity — Joindee of Offenses. §411 counts, one for rape and the other for assault with intent to com- mit rape, it was held that a request that the district attorney be required to elect on which count he would proceed was properly denied.*^ And where there were three counts in an indictment, one for rape in the first degree, the second for assault in the sec- ond degree, and the third for rape in the second degree, it was held that the district attorney would not be required to elect upon which of the counts he would go to the jury, as he had the right to go upon all the counts.'*^ § 411. Conspiracy to do criminal act and commission of act. — An indictment may charge a conspiracy to commit a criminal act and also the commission of such act in pursuance of the conspi- racy without rendering the indictment subject to the objection of duplicity.** So there is no misjoinder in an indictment which in one count charges several defendants with conspiracy to com- mit a larceny and in another count charges the commission of the larceny in pursuance 'of the conspiracy.** And while burglary and conspiracy to commit burglary constitute two distinct of- fenses, there may be a joinder in separate counts of an indict- ment where it appears that there is only one criminal transaction involved.*^ Again, where one count of an indictment charged the defendant with accepting a bribe in consideration of his agree- ment to release certain contraband liquors held by him as con- stable and another count charged the same offense, and alleged 41. People V. Satterlee, 5 Hun (N. wealth, 88 Va. 847, 14 S. E. 534. Y.), 167. West Virginia.— State v. Grove 42. People v. Adams, 72 App. Div. (W. Va. 1907), 57 S. E. 296. (N. Y.) 166, 76 N. Y. Supp. 366. Am indictment cannot be said 43. Illinois. — ^Hoyt v. People, 140 to charge more than one crime III. 588, 30 N. E. 315, 16 L. R. A. where it alleges a conspiracy to mur- 239. der resulting in the murder itself as Iowa. — State v. Grant, 86 Iowa, the conspiracy merges in the felony. 216, 53 N. W. 120. People v. Thoon, 21 Misc. R. (N. Y.) New York.— People v. Thorn, 21 130. Misc. R. 130, 47 N. Y. Supp. 46. 44. Anthony v. Commonwealth, 88 Texas.— Dill v. State, 35 Tex. Or. Va. 847, 14 S. E. 534. 240, 33 S. W. 126, 60 Am. St. Rep. 37. 45. Dill v. State, 35 Tex. Cr. 240, Virginia. — ^Anthony v. Common- 33 S. W. 126, 60 Am. St. Rep. 37. 501 § 412 Duplicity — Joindee of Offenses. that it was committed by means of an unlawful conspiracy be- tween the defendant and another, but in reference to the crime charged the court declared that, " The two counts in this indict- ment describe but one transaction, and are intended to charge but one offense," it was held that the indictment was not bad for duplicity, but was simply charging the offense under different forms, to meet the testimony.*® ! § 412. Charging commission of act and causing of act to be done — Aiding and abetting. — ^An indictment charging a defend- ant with the commission of an act and of causing it to be com- mitted is not defective as charging two offenses.*'' So where an information alleged that the defendant unlawfully, maliciously and mischievously did injure and cause to be injured certain property of another it was held that the phrase " injured and caused to be injured " was not objectionable.** And likewise an indictment charging that the defendant unlawfully and mali- ciously destroyed and maliciously caused to be destroyed certain property was held not to be objectionable on the ground that it charged two offenses.** And in the case of an indictment against an officer of a corporation for altering the corporate books in vio- lation of a statute, it is held that an allegation that the defendant altered and caused to be altered the book in question does not ren- der the indictment subject to the objection that two offenses are charged where there is only one alteration complained of.*" And where an indictment charged that the defendant caused to be set fire to and burned a large amount of combustible material, with the intention to cause a certain described store building to be burned, and did then and there, in the manner and at the time and place aforesaid, set fire to, and cause to be burned, in the night time, the said store building, it was held that the charge as to 46. State v. Potts, 78 Iowa, 656, 48. Boswell v. State, 8 Ind. 499. 43 N. W. 534, 5 L. R. A. 814. 47. State v. Runs, 5 Blackf. *»" S***^ ^- ^™8' ^ Blackf. (Ind.) 314; see People v. Klipfel, 160 '^^^^'^ ^^*- N. Y. 371, 54 N. E. 788, 14 N. Y. Cr. 50. Qualey v. Territory, 8 Ariz. 45, R. 169. 68 Pac. 546. 502 Duplicity — Joindek of Offenses. § 413 ihe actual burning must be regarded as an allegation of evidence, to he treated as surplusage, and that the indictment was not, there- fore, bad for duplicity.'^ So there is no duplicity in an indict- ment which alleges that the respondent forged and caused to be forged, and aided and assisted in forging — they being the same offense under the statute, and in legal contemplation the same act.®^ Again, where it is provided by statute that " every per- son who shall be convicted of having administered, or of having caused and procured to be administered, any poison," etc., shall be punished as therein stated a count in an indictment, which charges that the prisoner did administer, and did cause and pro- cure to be administered, etc., does not charge two distinct of- fenses and is not subject to the objection of duplicity.®^ So it is held that one who aids and abets in keeping a banking game or banking house, the act being made one by statute with the prin- cipal act, may be prosecuted in one count setting out the principal and the acts of aiding and abetting.^* § 413. Joinder of a felony and misdemeanor. — Where but one transaction is intended to be charged and prosecuted it is held in many jurisdictions that a count charging a misdemeanor may be joined with a count in the same indictment, charging an offense which is ordinarily denominated a felony.^ ^ So it has been de- al. State V. Hull, 83 Iowa, 112, App. Div. 422, 68 N. Y. Supp. 263, 15 48 N. W. 917. N. Y. Cr. E. 333. 52. State v. Morton, 27 Vt. 310. Ohio. — ^Barton v. State, 18 Ohio, 53. lia Beau v. People, 33 How. 121. Prac. (N. Y.) 66. Bhode Island.— State v. Fitz- 54. State v. Behan, 113 La. 754, 37 simon, 18 E. I. 236, 27 Atl. 446, 49 So. 714. Am. St. Eep. 766. 55. Arkansas. — State v. Cryer, South Carolina. — State v. Beek- 20 Ark. 67. roge, 49 S. C. 484, 27 S. E. 658. Illinois. — ^Herman v. People, 131 Must be charged in separate III. 594, 22 N. E. 471, 9 L. E. A. 182. counts. — Where the acts complained Bfaryland. — Burk v. State, 2 Har. of " in a criminal prosecution consti- & J. 426. tute a felony and also a misdemeanor, Hexr Hampshire. — i9 N. H. 464. both the felony and the misdemeanor New Torfc. — ^People v. Trainor, 57 may be joined in the same indictment, 503 §413 Duplicity — Joindee of Offenses. clared that the better rule is to permit the joinder of counts, whether for felony or for misdemeanor, where one and the same criminal transaction is involved in the different counts or the felonies and the misdemeanors charged arise from distinct stages in the same offense.^" And in a somewhat recent case in South Carolina it is said that the power to include distinct offenses of different grades — felony on the one hand and misdemeanor on the other hand, has been recognized in that State in a long line of cases.^'' In other cases, however, it is held that a count charging a felony cannot be united with a count charging a misdemeanor.®* So in a case in which this view is taken it is said that whilst two or more counts, charging the defendant with the same species of felony, may be joined in the same indictment, as well as different counts charging the defendant with misdemeanors, still the indictment is demurrable when it contains two counts — the one charging the defendant with an offense amounting to a felony, and the other charging him with an offense which amounts to a misdemeanor only, and the reason is that it would embarrass the defendant in provided that they are charged in separate counts. People v. Linhardt, 4 N. y. Crim. 327. 56. Herman v. People, 131 111. 602. 57. State v. Beckroge, 49 S. C. 484, 27 S. E. 658. Per Pope, J., citing State V. Nelson, 14 Rich. 172; State V. Scott, 15 S. C. 434; State v. Nor- ton, 28 S. C. 576; State v. Woodard, 38 S. C. 353. 58. Alabama. — James v. State, 104 Ala. 20, 16 So. 94. Georgia. — Doyle v. State, 77 Ga. 513. Missouri. — Hilderbrand v. State, 5 Mo. 548. Tenmessee. — State v. Freele, 3 Humph. 228. Texas. — Samuels v. State (Tex. Cr.) 29 S. W. 1079. There sHonld not be a joinder in one count of a charge of an at- tempt to commit a felony with a charge of an attempt to commit a. misdemeanor. Hogan v. State (Fla. 1905), 39 So. 464. By the common law, it seems, counts for a. felony and misdemeanor cannot be joined in the same indict- ment; and if improperly joined, the indictment will be bad on demurrer, or on motion in arrest of judgment. In our country some of the States have adhered to this rule; and in others, it has been held that the reason of the rule has no application in this country and consequently the rule has not been observed. State v. Cryer, 20 Ark. 67. 504 Duplicity — Joindee of Offenses. § 414 the selection of a jury, for he might be willing that a juror should try him for the one offense and not for the other.®® § 414. Counts at common law and under statute. — There may be a joinder in an indictment of counts at common law and under a statute for offenses which are of the same general character and result from the same criminal act.®" So it has been decided that counts at common law and under a statute, for the same offense, may be joined ; and that, although one be good and the other bad, and there be a verdict equally applicable to both, yet the judg- ment need not be arrested therefor.®^ So a coimt for the statu- tory offense of assault with intent to do great bodily harm may be joined with one for the common law offense of assault with in- tent to kill and murder, though the penalties be different, where both are felonies defined by statute, and one includes the other, so that the evidence applicable to the greater applies to the less.®^ And the common law offense of keeping a bawdy-house, and the statutory offense of being a common prostitute, or the keeper of a house of prostitution, having no honest employment whereby to maintain " herself," may be joined, in separate counts, in the same indictment.®^ And a count for the larceny of a horse, con- cluding at common law, may be joined with a count for the statu- tory offense of receiving the same, and the indictment thus drawn will warrant a general verdict of guilty.®* In this connection it has also been decided that, where an indictment charged a distil- lery company with permitting its still slops to flow into the waters of a creek, " whereby the said stream of water was ren- dered foul, noisome, unfit for man or beast, and caused the fish in said stream to die," it was not subject to the objection that it charged two offenses, one the common law offense of maintaining 59. Davis v. State, 57 Ga. 67. 61. State v. Posey, 7 Eich. L. (S. 60. People v. Sweeney, 55 C.) 491. Mich. 586, 22 N. W. 50; State 62. People v. Sweeney, 55 Mich. V. Williams, 2 McC. L. (S. C.) 586, 22 N. W. 50. 301; State v. Thompson, 2 Strobh. 63. Wooater v. State, 55 Ala. 217. (S. C.) 12. 64. State v. Lawrence, 81 N. C. 523. 505 §§ 43 5, 416 Dui^LiciTY — Joindek of Offenses. a nuisance, and the other the statutory offense of poisoning or polluting a stream of water, whereby fish are sickened and killed-^!* § 415. Charging acts stated in disjunctive in statute. — ^Where a statute enumerates several acts in the disjunctive, which, either together or separately, shall constitute the offense stated therein, an indictment may charge more than one of them in the conjunc- tive without being duplicitous.®* It should not, however, charge such acts in the alternative.*^ § 416. Offense affecting different articles — Different own- ers. — Where several articles of property are stolen at the same time and place the stealing constitutes but one offense, and an in- dictment or information for the offense so committed may cliarge such stealing in one count, setting forth specifically the owner- 65. Peacock Distilling Co. v. Com- monwealth, 25 Ky. Law Eep. 778, 78 S. W. 893. The court said: "It not infrequently occurs that the same act may constitute, in whole or in part, two or more cases. In that event it is the accusative part of the indict- ment that determines the offense charged by the commonwealth. This indictment does not go upon the idea that the statute has been violated. It is not a prosecution for a viola- tion of that or any statute, but it is drawn to charge the common law of- fense of maintaining and suffering a nuisance. The description of the acts constituting the offense states not only the suffering of the filth and slop to accumulate so as to create un- healthful and offensive odors, but that by letting the slops and filth escape into the stream it killed the fish, which decomposing, added to the offensiveness of the other odors. The gravamen is the ci-eation of unhealth- ful, noisome, odors, that fish were killed and waters polluted by the slop were only incidents and parts of the main offense. The indictment was not duplex, and the demurrer was properly overruled." Per O'Reae, J. 66. United States.— United States V. Stone, 49 Fed. 848. California. — People v. Gosset, 93 Cal. 641, 29 Pac. 246. Kentucky. — Vowells v. Common- wealth, 84 Ky. 52. Iionislana. — State v. Stanley, 42 La. Ann. 978, 8 So. 469. Missonrl. — State v. Fitzsimmons, 30 Mo. 236. Texas. — Laroe v. State, 30 Tex. App. 375, 17 S. W. 934. See also § 382 herein where this question is more fully considered. 67. See § 382 herein. 506 DuPLICITT JoiNDEE OF OfFENSES. §416 ship of each article.** That the property stolen was owned by different pea-sons does not make the felonious taking separate of- fenses. If, in point of time and circumstances, the taking was done as a single act, then it is but one offense.®' Whether the count is double depends on whether it charges more than one lar- ceny and whether there was more than one larceny depends on whether there was more than one taking, and not on the number of articles taken.'''* The particular ownership of the property which is the subject of a larceny does not fall within the deiini- tion and is not of the essence of the crime. The gist of the of- fense consists in feloniously taking the property of another; and neither tlie legal or the moral quality of the act is at all af- fected by the fact that the property stolen, instead of being owned by one, or by two or more jointly, is the several property of dif- ferent persons. The particular ownership of the property is, charged in the indictment, not to give character to the act of tak- es. Alabama. — Reed v. State, 88 Ala. 36, 6 So. 840. District Columbia. — ^Hoiles v. United States, 3 MacA. (D. C.) 370, 36 Am. Eep. 104. Georgia. — Lowe v. State of Georgia, 57 Ga. 171. Indiana. — Furnace v. State, 153 Ind. 93, 54 N. E. 441. loira. — State v. Larson, 85 Iowa, 659, 52 N. W. 539. Kentucky. — ^Nichols v. Common- wealth, 78 Ky. 180. Maryland. — State v. Warren, 77 Md. 121, 26 Atl. 500. Massachusetts. — Bushman y. Com- monwealth, 138 Mass. 507. Michigan. — People v. Johnson, 81 Mich. 573, 45 N. W. 1119. Missouri. — State v. Wagner, 118 Mo. 626, 24 S. W. 219; State v. Daniels, 32 Mo. 558. Montana. — State v. Wjelde, 29 Mont. 490, 75 Pac. 87. Nevada. — State v. Douglass, 26 Nev. 196, 65 Pac. 802, 22 Am. St. Eep. 685. He-w Hampshire. — State v. Mer- rill, 44 N. H. 624. Pennsylvania. — Fulmer v. Com- monwealth, 97 Pa. St. 503; Common- wealth V. Ault, 1 Pa. Super. Ct. 651. South Carolina. — State t. Hol- land, 5 Rich. Law (S. C.) 512. Texas. — Wilson v. State, 45 Texas, 76, 23 Am. Eep. 602; Clark v. State, 28 Tex. App. 189, 12 S. W. 729. Vermont. — State v. Cameron, 40 Vt. 555. Virginia. — ^Alexander t. Common- wealth, 90 Va. 809, 20 S. E. 782. Washington. — ^Territory v. Hey- wood, 2 Wash. Ter. 180. 69. State v. Larson, 85 Iowa, 659, 52 N. W. 539. 70. Morse v. Bichmond, 42 Vt. 539. 507 §416 Duplicity — Joindee of Offenses. ing, but merely by way of description of the particular offense. ''^ So it has been declared that the stealing of several articles of property at the same time and place undoubtedly constitutes but one offense against the laws, and the circumstance of several ownerships cannot increase or mitigate the nature of the offense.''^ And in a leading case, in which this question is considered, it is said : " Upon principle it would seem clear that the stealing of several articles at the same time, whether belonging to the same person, or to several persons, constituted but one offense. It is but one offense, because the act is one continuous act^ — the same transaction, and the gist of the offense being the felonious taking of the property, we do not see how the legal quality of the act is in any manner affected by the fact that the property stolen, instead of belonging to one person, is the several property of dif- ferent persons. The offense is an offense against the public, and the prosecution is conducted, not in the name of the owner of the property, nor in his behalf, but in the name of the State, the pri- mary object being to protect the public against such offenses by the punishment of the offender. And, although it is necessary To set out in the indictment the ownership of the property, this the law requires in order that the prisoner may be informed as to the precise nature of the offense charged against him, and fur- ther, to enable him to plead a former conviction or acquittal, in bar of a subsequent prosecution for the same offense. So it seems clear to us on principle that the taking of several articles of property under such circumstances constitutes but one felony. And this view is fully sustained, not only by the standard ele- mentary books on criminal law, but by the best considered cases."^^ Where an offense of this character is charged in separ- ate counts, the State will not be required to elect on which count it will stand.^* So where an indictment for robbery contained three counts, one of which charged the property feloniously taken to be '■' thirty cents in specie coin of the United States, consisting 71. Ohio V. Hennessey, 23 Ohio, 73. State v. Warren, 77 Md. 122, 347, 13 Am. Eep. 253. 26 Atl. 500, 39 Am. State Rep. 401 ; per Robinson, J. 72. Lorton v. State, 7 Mo. 55, 37 74. State v. Douglass, 26 Nev. 196, Am. Dec. 179. 65 Pac. 802. 508 Duplicity — Joindee of Offenses. § 417 of one piece of the denomination of twenty-five cents and one piece of the denomination of five cents," and the second count charges the property alleged to have been taken as "a bunch of keys of the value of one dollar," and the third count charged that the defendant feloniously took " a knife of the value of seventy-five cents," it was held that there was not presented a case for compelling the State to elect as between the several counts of the indictment, as to which one he would ask for a convic- tion.''^ Where, however, an indictment or information charges in one count the larceny of different articles belonging to differ- ent owners, it should appear that the taking of each article was a part of the same transaction in which the other articles were taken.''® And in this connection, in a case where there were several counts, in each of which the larceny of the property of a different person was charged, it was said that the court is not bound to assume that they were for one and the same offense, though alleged to have been committed on the same day.'" § 417. Offense affecting different buildings or properties — Arson. — An offense affecting different buildings or parcels of property, whether owned by the same party or by different par- ties, may be properly charged either in different counts or in the same count where the injury thereto is a consequence of the same act or acts which are a part of the same transaction. So an in- dictment charging as a single act the burning of a number of designated dwelling-houses, charges but one offense, and is, there- fore, not bad for duplicity. The criminal act is the kindling of the fire with felonious intent to bum the houses specified, and is consummated when the burning is effected ; and the fact that the houses did not burn at the same time, and that but one was set on fire, the fire communicating therefrom to the others, does not make the burning of each a separate offense.''* So an indict- 75. Nevill v. State, 138 Ala. 99. ling the fire with the felonious intent 76. Joslyn v. State, 128 Ind. 160, to burn the dwelling-houses specified, 27 N. E. 492. and was fully consummated when the 77. Bushman v. Commonwealth, burning was effected. The firs was 138 Mass. 507. not set in any one of the houses 78. Woodford v. People, 62 N. Y. specified, but the charge is that the 118. The criminal act was in kind- fire was kindled in the shed for the 509 § 418 Duplicity — Joindeb of Offenses. ment for arson containing four counts, each of which charges the offense in the first degree, but alleging a different house and dif- ferent ownership, is not liable to demurrer for misjoinder of counts.''* And two offenses are not. charged by an indictment which alleges the burning of a building and of certain specified personal property therein.*" And where an indictment contained two counts, one for breaking and entering the dwelling-house of another, and another for breaking and entering, at the same time, the storehouse of the same person, it was held on motion to quash, that the indictment was good, and also that the prosecutor would not be required to elect on which count he would proceed to trial.^' § 418. Offense afEecting different persons — Where a criminal act is a single act consummated at one time it may be charged as one offense, though it affects different persons. So where a per- son by the same act kills two or more persons, an indictment charging such killing in one count will not be bad for duplic- ity.*^ And likewise an indictment is not defective wherein there is a joinder of counts charging an assault with intent to murder different persons.*^ So in an early case in Alabama it was held that in an indictment against a slave for administering purpose of burning the houses, and 79. Miller v. State, 45 Ala. 24. there can be no question that an in- 80. Clue v. State, 78 Miss. 661, 29 dictment for burning one house will So. 516. be sustained by proof of the firing of 81. State v. Shores, 31 W. Va. another with the criminal intent of 492. burning the house specified. Other- 82. Iionisiana. — State v. Batson, wise, a criminal liability for a higher 108 La. 479, 27 So. 639. offense could be avoided in most Mississippi. — Williamson v. State, cases. The several houses could not 77 Miss. 705, 27 So. 639. burn at the same Instant, nor could Tennessee. — Forrest v. State, 81 they occupy precisely the same place, Tenn. 103; Kannon v. State, 10 Lea, but the criminal act was single, and 386; Womack v. State, 7 Cold. 508. the consequences ensued according to Texas. — Chivario v. State, 15 Tex. the nature of the act. Per Church, App. 330; Kicker v. State, 7 Tex. Oh. J. App. 549; Cornell v. State, 104 Wis. See also State v. Ward, 61 Vt. 153, 527, 80 N. W. 745. 17 Atl. 483; Early v. Commonwealth, 83. Tanner v. State, 92 Ala. 1, 9^ 86 Va. 921, II S. E. 795. So. 613. 510 Duplicity — Joiudee of Offenses. §418 poison to white persons, a coimt was not demurrable for duplic- ity which charged that the defendant " did administer to, and cause to be administered to and taken by " three certain free white persons, " a large quantity of arsenic."** And it is held in this connection that where two or more persons are killed by the same act, the State cannot indict the guilty party for killing one of the persons and after a conviction or acquittal indict him for killing the other.*® Again, an indictment for embezzlement by an officer of a corporation, which charged that he embezzled money of the corporation, and also that he embezzled money of persons other than the corporation, was held not to be duplici- tious, on the ground that it charged two offenses when, under the statute under which the indictment was framed, the distinguish- ing feature of the crime of embezzlement were that the official should have come into possession of the property converted by reason of the confidence and trust reposed in him by virtue of his position, and that he should have converted such property fraud- ulently.*® And likewise an indictment charging a person with assault upon two or more persons, in one count, where such as- sault is committed at the same time and by one act and with the same intent, is not objectionable as charging two offenses in one count as such an assault constitutes but one offense.*'^ And a count in such an indictment charging the sale of divers quantities of different sorts of liquors, to divers citizens of the State and to divers persons unknown, cannot be objected to on error as a count embracing more than one offense ; the whole will be deemed a sin- gle transaction.** 84. Ben v. State, 22 Ala. 9, 58 Am. New Tork. — People v. Rockhill, Dec. 234. 74 Hun, 241. 85. Clun V. State, 42 Ind. 421. Rhode Idaad.— Kenney v. State, 86. Taylor v. Commonwealth, 25 5 ;g_ j 335 Ky. L. R. 374, 75 S. W. 244. Tenn«.ee.-Fowler v. State, 3 87. Kansas — State v. Johnson, 70 geisk 154 Kan. 861, 79 Pac. 732. „ " ' ^^ „^ ^ MassacHusetts— Commonwealthv. Texa..-Scott v. State, 46 Tex. Cr. 305, 81 S. W. 950. 88. People v. Ad 90 Mich. 442, 51 N. \V. 531. Y.) 475; see also Stoss v. State, 3 Chamberlain, 107 Mass. 209. BUchigam. — People v. Ellsworth, 88. People v. Adams, 17 Wend. (N. 511 §§ 419, 420 Duplicity — Joindee of Offenses. § 419. Different description of person affected. — One whose person or property is affected by the criminal act of another may in many cases be differently described in different counts in order to meet the evidence in the case. So an indictment for the em- bezzlement of one sum of money at one time may, in different counts, charge that the money embezzled was the property of dif- ferent persons.*^ And an indictment for murder may contain two or more counts, in each of which the person allied to have been murdered may be described by a different name.®" Nor is it any objection to an indictment for larceny, which contains two counts, that in each of the counts the property alleged to have been stolen is alleged to have belonged to a different person.*^ So where an indictment contains several counts, one for larceny, others for receiving stolen goods knowing them to have been stolen, and others for aiding another person to conceal stolen goods, knowing them to have been stolen, but the charges in all the counts, however, relate to the same goods, which in different counts are laid to be the goods of different persons, or of a person unknown, it is held that it is not a case in which the court should quash some of the counts, or compel the prosecution to elect on which count the prisoner shall be tried.®^ § 420. Where description of offense includes another offense. — If the description of one offense when complete necessarily im- plies or includes another, there is no repugnancy created which renders their joinder in the same count improper.®^ And as a general rule the fact that in describing an oflFeaise a part of the facts stated are descriptive of another offense does not render the indictment subject to the objection that it charges two offenses.'* Mo. 9 ; Endleman v. United States, 93. State v. Randle, 41 Tex. 292. 86 Fed. K. 456. 94. United States.— United States 89. Myers v. State, 4 Ohio C. C. v. Hausee, 79 Fed. 303. 570. California. — People v. Ah Oun, 90. State v. Smith, 24 W. Va. 814. 39 Cal. 604. 91. Crittenden v. State, 134 Ala. Iowa. — State v. Edmunds, 127 145, 32 So. 273; Kennedy v. State, 31 Iowa, 333, 101 N. W. 431. Fla. 428, 12 So. 858. Kentucky.— Peacock Distillery 92. Dowdy v. Commonwealth, 9 Co. v. Commonwealth, 25 Ky. Law Gratt. (Va.) 727. Rep. 1778, 78 S. W. 893; Farris v. 512 DtJPLICITT JOINDEE OF OfFENSES. §420 So in Massachusetts it is said " That allegations of facts con- nected with the particular offense intended to be charged, and showing that another offense was committed at the same time and by the same acts as set forth, do not necessarily amount to du- plicity of pleading, is established by various decisions of this court."®^ So the fact that in stating the manner or means of the commission of an offense another offense is stated by name does not render an indictment duplicitous.*® And an indictment for forgery is not bad for duplicity in charging the forgery of a bank check and signature, it being intended merely by alleging the for- gery of the signature to set out the manner in which the check was forged.®^ And two distinct offenses are not charged by an Commonwealth, 12 Ky. Law Rep. 592, 14 S. W. 681; Commonwealth v. Powell, 8 Bush. 7. Iionisiana. — State v. Desroche, 47 La. Ann. 651, 17 So. 209; State v. McTier, 45 La. Ann. 440, 12 So. 516. Massachusetts. — Commonwealth v. Holmes, 165 Mass. 457, 43 N. E. 189; Commonwealth v. Hart, 10 Gray, 465. Missonri. — State v. Knock, 142 Mo. 515, 44 S. W. 235; State v. Gil- more, 110 Mo. 1, 19 S. W. 218. New Jersey. — State t. Middlesex 4. Somerset Traction Co., 67 N. J. L. 14, 50 Atl. 354; Farrell v. State, 54 N. J. L. 416, 24 Atl. 723. New Tork. — Polinsky v. People, 73 N. Y. 65. NoTth Carolina. — State T. Har- ris, 106 N. C. 682, 11 S. E. 377. Ohio. — Blair v. State, 5 Ohio C. C. 496. Tennessee. — Cornell v. State, 66 Tenn. 520. IVisconsin. — ^McBanney v. State, 25 Wis. 378. Compare State v. Mattison, 13 N. D. 391, 100 N. W. 1091, holding that where in charging a single offense in an information matters of aggrava- tion are unnecessarily alleged which fully describe another offense not nec- essarily included in the one attempted to be charged, the information is bad for duplicity. As to a conTiction of an of- fense in any degree inferior to that charged in the indictment, see Dedieu v. People, 22 N. Y. 178. 95. Commonwealth v. Thompson, 116 Mass. 346. Per Wells, J., citing Commonwealth v. Eaton, 15 Pick. (Mass.) 273; Commonwealth v. Twitchell, 4 Cush. (Mass.) 74; Com- monwealth V. Tuck, 20 Pick. (Mass.) 356; Commonwealth v. Hope, 22 Pick. (Mass.) 1; Commonwealth v. Nichols, 10 Allen (Mass.), 199; Com- monwealth V. Harris, 13 Allen (Mass.), 534. 96. Moline v. State, 72 Neb. 361, 100 N. W. 810; State v. Ferry, 61 Vt. 625, 18 Atl. 451. 97. Barnes v. Commonwealth, 101 Ky. 556, 41 S. W. 772. 513 §421 Duplicity — Joindee of Offenses. indictment alleging that the respondents made an assatdt upon a person, attempting thereby by intimidations to procure such per- son to avoid voting at an annual tovra meeting.®* § 421. Unnecessary averments — Surplusage. — Though an indictment may contain a more elaborate and specific statement of the facts than is necessary, the defendant cannot on this ac- count alone demur thereto on the ground that it charges more than one crime," as such unnecessary matter may be treated as surplusage.^ So an indictment for disturbing religious worship " by talking and laughing " and by indecent gestures, is not bad for duplicity. It charges but one offense, the words " by talking and laughing " being mere surplusage.^ And in an indictment for selling on Sunday intoxicating liquor, to be drank on the premises where sold, an averment that the defendant had no li- cense or permit authorizing him so to do does not render the in- dictment objectionable for duplicity, but such averment is merely surplusage.* And in an indictment for fraudulently obtaining the signature of the prosecutor to a promissory note, a count charging the fraudulent obtaining of the signature is not defec- tive because the actual payment of the note was therein after- wards alleged; the allegation of payment being held not a state- ment of another offense, but simply surplusage, which could be 98. The assault set forth in the in- See also Traylor v. State, 101 Jnd. dictment is not alleged as a substan- 65; State v. Palmer, 35 Me. 9. tive oflfense, but as a specific state- , oi. ^ t. i /^/^ . • m no ' ^ 1. State V. Rapley, 60 Ark. 13, 28 ment of the manner m which the re- g ^ g^g. g^^^^,^ ^ ^^^^ ^ ^^^ spondents attempted to prevent But- ^^^ ^Qe, 36 N. E. 664; State v. ler from voting. The gist of the of- ^ . _. -,. „,„ ^„ ^_ ,_, .. °, ,, . , ,. Commgs, 54 Minn. 359, 56 N. W. 50; fense laid is the attempt, and the „, . . , ,no ,«■ „„„ ,o o "^ ' State V. Adams, 108 Mo. 208, 18 S. assault is alleged merely to describe _, ,_„_ „, . . . ,„„ , . ^ •', . W. 1000; State v. Armstrong, 106 the act, which, in combination with ^^ ^^^ j^ g ^ ^^^ the intent, is signified by the word ^ _ ' 04. i. m ^.i- ,n -vt ' ^ . ■' „ Compare State v. Mattison, 13 N. of compound meaning, attempt.' p ggj^ ^^^ j^ ^ ^^^^ State V. Josiah Hardy & als., 47 N. H. 538. Per Smith, J. 2. State v. Bledsoe, 47 Ark. 233, 1 99. People v. Wicks, 11 App. Div. S. W. 149. (N. Y.) 639, 42 N. Y. Supp. 630. 3. State v. Hutzell, 53 Ind. 160. 614 Duplicity — Joixdee of Offenses. §422 stricken out by the court on motion/ Again, where an indict- ment charged that the defendant " feloniously, willfully and for his own gain did buy and receive " a certain stolen mule, it was held that it did not charge two offenses, as the addition of the word " received," though not necessary, did not make the offense less or different from buying the property stolen.* Likewise where a statute forbid the sale of " adulterated milk or milk to which water or any foreign substance has been added," an in- dictment thereunder was held not to be bad for duplicity in that it charged that the defendant sold a certain quantity of " adul- terated mUk, to which a large quantity, that is to say, four quarts, of water had been added."* And an indictment which alleged that the defendant did " embezzle, steal, take and carry away " certain goods was held not bad as charging the two offenses of embezzlement and larceny, and that the word " embezzle " would be rejected as surplusage and the indictment be regarded as charg- ing a larceny only.'^ But words in an indictment which may have been the grounds of the verdict cannot be rejected as surplus- age to support a conviction.* i§ 422. Imperfect description of another offense — Surplus- age. — ^Where an indictment, in charging an offense, states facts which insufficiently describe another offense, the latter state- ments do not vitiate the indictment, but may be rejected as sur- plusage.* So it is said in this connection, in a case in which this 4. Commonwealth v. Frey, 50 Pa. Minn. 359, 56 N. W. 50; State v. St. 245. Henn, 39 Minn. 464, 476, 40 N. W. 5. People V. Montejo, 18 Cal. 38. 564. 6. Commonwealth v. Farren, 9 BUssonri. — State v. Flanders, 118 Allen (Mass.), 489. Mo. 227, 23 S. W. 1086. 7. Commonwealth v. Simpson, 9 Ne\ir York. — ^People v. Casey, 72 Mete. (Mass.) 138. N. Y. 393; Lohman v. People, 1 N. Y. 8. Ellis V. Ellis, 11 Mass. 92. 379, 2 Barb. 216. 9. Maine. — State v. Haskell, 76 Nortb Carolina. — State v. Dar- Me. 401. den, 117 N. C. 697, 23 S. E. 106. Massadtosetts. — Commonwealth v. Peiuisylvaiiia. — Jillard t. Com- Stowell, 9 Mete. 569. monwealth, 26 Pa. St. 169; State v. SCisnesota. — State v. Comings, 54 Gould, 26 W. Va. 258. 515 § 423 Duplicity — Joinder of Offenses. question was raised : " The accused could not have been sub- jected to any additional danger on account of the defective aver- ments in the count, upon which they were found guilty. They were of no importance, and their insertion does not render the count bad for duplicity for it does not contain a description of two different offenses. It contains a description of one offense and some additional averments not describing any other offense. To constitute duplicity two offenses must be sufficiently de- scribed."^"' So an indictment is not bad for duplicity which con- tains the necessary averments charging an aggravated assault and which also details the facts necessary to make the offense of threatening to take life, but omitting to charge that such threat was seriously made.^^ And an affidavit charging a violation of a statute prohibiting during such days and hours when the sales of intoxicating liquors are unlawful, the maintaining of screens ob- structing the view of a room in which such liquors are sold, is not bad for duplicity because it contains some, though not all, of the averments necessary to charge an offense under another and dif- ferent statute.-'^ Again, where two sections of a criminal statute are intended, in a general way, to cover the same offense, or differ- ent degrees of the same offense, but the offense defined in either is not included in the other, an information which fairly charges an offense under one of such sections is, not open to the charge of du- plicity because some of the language used is similar to that found in the other section.^* §! 423. Joinder of parties — Generally. — Where more persons than one engage in the doing of a criminal act, in such a way as to make each one guilty of the crime, they may be jointly indicted, either in a single count or in separate counts.''* So two or more 10. State V. Parmer, 35 Me. 13. 161, 46 N. E. 540; determining suflS- Two offenses lunst be set ont ciency of an affidavit alleging viola- snfficiently to render an indictment tion of S 4, Act of March 11, 1895. double. State v. Henn, 39 Minn. 464, 13. State v. Appleby, 66 Kan. 351, 40 N. W. 564. 71 Pac. 847. 11. Crow V. State, 41 Tex. 468. 14. District of Colnmbia. — 12. Herron v. State, 17 Ind. App. Ainsworth v. United States, 21 Wash. 516 Duplicity — Joindek of Offenses. ,424 persons may be jointly indicted where the same evidence as to the act which constitutes the crime applies to them all.^^ So in an early English case it is said that several defendants may be joiaed in one count of the same indictment or information, if the offense wholly arises from such a joint act as is criminal in itself, without regard to any personal default of the defendant, which is peculiar to himself.^® And it has been decided that several offenders may, in some cases, be included in the one indictment for different offenses which are of the same nature, in which case the word separately should be inserted, which has the effect of making the indictment several as to each of the offenders. Where an indictment is so framed, however, it may be quashed by the court in its discretion if it appears that any material disadvant- age will arise from so preferring the charge.^^ It is, however, a Law R. 806, 1 App. D. C. 518. Iionisiaiia. — State v. Adam, 105 La. 737, 30 So. 101. Minxesota. — State v. Johnson, 37 Minn. 493, 35 N. W. 373. MisBonri. — State v. Gay, 10 Mo. 440. New Hampshire. — State v. For- cier, 65 N. H. 42, 17 Atl. 577. New York. — People v. Coombs, 36 App. Div. 284, 55 N. Y. Supp. 276. Oliio. — ^Hess V. State, 5 Ohio, 5. Feansylvania. — Commonwealth v. Gillespie, 7 Serg. & K. 439. Soutli Carolina. — State v. Wood- ard, 38 S. C. 353, 17 S. E. 135. Texas. — ^Lewellen v. State, 18 Tex. 538. Virginia. — ^Anthony v. Common- wealth, 88 Va. 847, 14 S. E. 834; Hash V. Commonwealth, 88 Va. 172, 13 S. E. 398. Sufficiency of joint indictment for mnrder. — ^A joint indictment against two persons charging that they "on the — day of , 1896, before the finding of this indictment. did wilfully, feloniously and with malice aforethought, kill and murder Pearl Bryan, by the one or. the other, . . . with a knife or other sharp instrument, cutting the throat of the said Pearl Bryan, so that she did then and there die, the other being then and there present, aiding and abetting the same, the exact manner whereof is imknown to the grand jurors; and which did the cutting . . . or which aided and abetted the same, is vinknown to the jurors," is held sufficiently direct and certain as to the party charged; they each being charged with the murder, either by the cutting or by aiding or abet- ting the other. Jackson v. Common- wealth, 100 Ky. 239, 38 S. W. 422. 15. Commonwealth v. Elwell, 2 Mete. (Mass.) 190, 35 Am. Dec. 398. 16. Rex V. Benfield, 2 Burr. 980. 17. Lewellen v. State, 18 Tex. 538. See also State v. Vail, 19 Ark. 563; Commonwealth v. Gillespie, 7 Serg. & R. (Pa.) 469. 517 § 424 Duplicity — Joibtdee of Offej^tses. general rule that where the offense is of such a character that it cannot he committed hy two or more persons jointly, it is error in an indictment to charge several persons jointly with the com- mission of such an offense,^® Nor should persons be jointly charged in an indictment with the commission of offenses which are distinct and independent and not of the same nature.*® So it has been held that two persons can not be jointly indicted for the statutory offense of the use of " abusive, insulting or obscene language " in the presence of a female.*" So two defendants can- not be jointly indicted in the same count for uttering vulgar or profane language, or making violent threats against another, at his residence.** And an indicthient charging two persons with betting on the result of an election and a third with becoming the stakeholder of such bet, has been held defective, the offenses being separate and distinct crimes.** § 424. Necessity of joinder of parties — The State may de- termine whether it will proceed against defendants accused of the commission of a single crime, either jointly, with the privi- 18. Cox V. State, 76 Ala. 66; State perceive how the guilt conld be joint. V. Wainwright, 60 Ark. 280, 29 S. W. Possibly one might procure another 981 ; State t. Deaton, 92 N. C. 788. to use language interdicted by the 19. Townsend v. State, 137 Ala. statute; and possibly such offense, s» 91, 34 So. 382; Elliott v. Smith, 26 procured to be committed, -would pre- Ala. 78; State v. Hall, 97 N. C. 474, sent a case of joint criminality. That 1 S. E. 683; State v. Nichols, 12 is not this case. There is neither Rich. L. (S. C.) 673. proof, nor ground for inference, that 80. Cox V. State, 76 Ala. 66. The either of these defendants procured court said in this case : " It would the other to use the language the seem that, ex vi terminorum, this of- testimony tends to show was uttered fense can scarcely be committed by by that other. No joint offense was two or more persons conjointly. It shown, and, under our rulings, it was Is made up of speech — perverted error to indict them jointly, as hav- speech — which is necessarily a per- ing participated in the commission of sonal, individual act; and if two one and the same misdemeanor." Per should employ the same abusive or Stone, C. J. See also State v. Raul- obscene language, it would seem this stone, 3 Sund. (Tenn.) 107. could not amount to a joint act. 21. State v. Lancaster, 36 Ark. 6<. Each might be guilty, but we can not 22. State v. Bridge, 24 Mo. 353. 518 Duplicity — Joindek of Offenses. § 425 lege to each of them of securing a separate trial, or separately.^® And a defendant cannot avail himself by plea in abatement or otherwise of the fact that others were employed with him in the identical offense of which he is indicted, who are not embraced in the indictment.^* So an indictment, charging that the defendant and another " did commit an affray, by fight- ing together by mutual and common consent, in public view," includes a charge of mutual assault and battery, and the defend- ant may be convicted under it, though the grand jury endorsed not a true bill as to the other.^^ And an act providing that all persons engaged in the same offense shall be embraced in the same indictment has been held to be directory and one to be pursued if practicable, but to be no matter of defense to one of several co- defendants who is indicted alone.'^® So where, by statute, it is intended that when two or more persons are charged before the grand jury with the joint commission of a crime, in preferring a bill they shall find it against all who are charged, and not indict one and let the others go free, so that they will be at liberty to appear and testify in the interest of their confederate, yet the fact that one is not included in the indictment with the defend- ant named works no injury to him and the indictment will not be held invalid on that account.^^ Where, however, a single indi- vidual, unconnected with others, cannot commit the offense in- tended in an indictment, it is not sufficient in an indictment to charge the commission of such offense by an individual.** § 425. Effect of joinder of parties. — Offenses, thongh com- mitted jointly, are said to be in law several, and a charge that two persons committed a crime is equivalent to a charge that each 23. People v. Plyler, 121 Cal. 162. 26. State v. Davis, S Sneed. A joint prosecution is not (Tenn.) 273. essential except as to oflfenses 27. State v. Steptoe, 65 Mo. 640. which cannot be committed by a 28. State v. iox, 15 Vt. 22, hold- single person. People v. Lange, 56 ing that an indictment against an in- Mieh. 549, 23 N. W. 217. dividual, unconnected with others, 24. State v. Davis, 2 Sneed. for aught that was averred, predi- pants are principals, and may be indicted therefor either separately or jointly. State v. Nowell, 60 N. H. 799. AH participants in a misde- meanor are severally liable, the same as if each had committed the offense alone, and all or any number of them may be charged together in one count of one indictment, or each may be indicted separately at the election of the commonwealth. Shel- 525 § 428 Duplicity — Joindee of Offenses. stitute two offenses, but one, in which both are principals.^' So in case of felony, where several are present, aiding and abetting, they may all be joined in the same indictment, and some one of them may be charged as actual perpetrator of the crime, and the others as aiders and abettors ; still they will all be held guilty as principals, and punished accordingly.^^ So two defendants who are principals in the same felony may be charged in the same coiuit, though one may be a principal in the first degree, as hav- ing actually committed the offense, the other as principal in the second degree, either by reason of being an accessory before the fact or being present, aiding, abetting and inciting his co-defend- ant in the commission of the crime, though not actually taking part in the criminal act itself, which is the gist of the offense.** And one who actually commits a homicide and one who is present, aiding, abetting, encouraging and advising the commission of the act, may be jointly indicted, though it may appear that only one of them actually committed the act of killing, as there is in legal contemplation but one offense of which all or any one of them can be convicted as principals.®* Again, an indictment against two, which charges one with an assault, with the intent maliciously and feloniously to kill and murder, and the other with having maliciously and feloniously incited his co-defendant to make the assault with that intent, is good at common law.*" And it has been decided that two persons may be jointly indicted, one for maintaining a liquor nuisance and the other for aiding in its maintenance.** Where, by Code, those who aid and abet the commission of a crime, which, from its nature, could in fact have been committed by but one, are chargeable as principals, such byville & Eminence T. P. R. Co. v. 59. Hatfield v. Commonwealth, 21 Commonwealth, 9 Ky. Law E. 244. Ky. Law Rep. 1461, 55 S. W. 679. 56. People v. Martin, 77 App. Div. (N.Y.) 406; See Everett V. State, 33 60- State v. Pile, 5 Ala. 72, Fla. 661, 15 So. 543; Cupp v. Com- ""'lierein the court said that the one monwealth, 87 Ky. 35, 9 Ky. Law <'^^''Se<^ "^^^ inciting his codefendant Rep 877 7 8 W 405 ^^^ ""* indicted as an accessory but 57. Dennus, a Slave, v. State, 5 *''** ^^ ^*« *1'"'"y g"i"y ^ *•« ^'"' Ark. 230. ^^^ prompted to act and might be 58. Pettes t. Commonwealth, 126 P^n'^hed as a principal with him. Mass. 248. 61. State v. Ruby, 68 Me. 543. 526 Duplicity — Joindee of Offenses. §428 persons may be jointly charged in an indictment with such crime.®* And under a statute providing that no distinction shall exist between an accessory before the fact and a principal, and providing that all persons concerned in the commission of a fel- ony, whether it is the person who committed the act constituting the offense or those who may aid and abet in its commission, shall be indicted, tried and punished as principals, an indictment charging a felony and setting forth that one of the defendants was an accessory before the fact is good.®^ In this connection it is said, in construing an indictment under a statute to this effect, which also provided that " no other facts need be alleged in any indictment against such an accessory than are required in an in- dictment against his principal ;" " It is true the statute makes an accessory before the fact a principal, and it is wholly unneces- sary to charge the accused in any other form than as principal; but, if the grand jury does charge one who is in fact an accessory before the fact as such, the effect is simply to inform him more clearly of what he must defend against, and therefore it is not a defect of which he can be heard to complain."** 62. State v. Comstock, 46 Iowa, 64. Territory v. Guthrie, 2 Ida.. 2*6. 432, 43S, 17 Pac. 39. 63. People y. Cryder, 6 Cal. 23. 527 Conclusiojst^ Indoesements and Signatuees. CHAPTER XV. CONCLUSIOH', InDOESEMENTS AND SiGNATUEES. -Section 429. Necessity of conclusion — Generally. 430. Effect of constitutional provision as to manner of conclusion, 431. Same subject — Strictly literal compliance not necessary. 432. Same subject — ^Unnecessary words — Surplusage. 433. Necessity of conclusion to each count. 434. Same subject — Effect of constitutional provision as to conclusion. 435. Necessity of concluding contrary to the form of the statute. 436. Where statute merely declaratory of common law. 437. Indictment for common law offense — Conclusion contrary to stat- ute — Surplusage. 438. Use of word " statutes " or " statute " in conclusion. 439. Necessity of indorsement " A true bill." 440. Same subject — Contrary view. 441. Same subject — Statutory provisions requiring indorsement. 442. Indorsement of names of witnesses. 443. Indorsement of title of cause. 444. Indorsement of name or nature of offense. 445. Necessity of signature of foreman of grand jury. 446. Signature of foreman — What is sufficient. 447. Necessity of signature of public prosecutor. 448. Signature of public prosecutors — Who may sign. 449. Signature of public prosecutor — What is sufficient. § 429. Necessity of conclusion — Generally. — In concludiBg an indictment at common law it was essential that words should be used indicating that the acts committed were an offense against the peace and dignity of the sovereign power in whose name the accusation proceeded. In England the usual words were " against the peace of our Lord the King (or Lady the Queen), his crown and dignity." In this country the words are simply changed to conform to the proper designation of the sovereign power.^ And it 1. Harden v. State, 106 Ga. 387, 32 An indictment for violating S. E. 365. the laws of a state against 528 CONCLUSIOH', InDOBSBMENTS AND SiGNATUEES. § 429 is declared in an early case that whoever commits an offense indict- able either by statute or at common law is guilty of a breach of the peace of that government which exercises jurisdiction for the time being over the place where such offense is committed and that in setting forth the offense, an omission to charge it as having been done against the peace of the government is fatal.^ In another case, however, in which this question is considered it is said: " The conclusion ' against the peace and dignity of the king ' was held in England to be necessary in all indictments, ^o reason was assigned for it except that it had been customary. It fur- nished no light to the defendant, and its employment was not re- quired by any statute. As every criminal offense is in its nature ' against the peace ' its use is tautology, and, doubtless, originated in the rhetorical flourish of some ancient and forgotten pleader."' Where the name of the State is given in the caption of the indict- ment it is held sufficient if the indictment conclude " against the peace and dignity of the State," without again naming it.* And connterfeitijig, properly charges the oflFense to have been committed against the sovereignty of the people of that state, instead of charging it to have been committed against the sovereignty of the people of the United States. Harlan v. People, 1 Doug. (Mich.) 207. An indictment in a territorial conrt for a violation of the laws adopted by Congress for the govern- ment of the territory properly con- cludes " against the peace and dig- nity of the United States " though it is said that it might be sufficient to conclude " contrary to the statute in such case made and provided." Jfick- son V. United States, 102 Fed. 473, 42 C. C. A. 452. 2. Damon's Case, 6 Me. 128; see State V. Pemberton, 30 Mo. 376; State V. Lopez, 19 Mo. 254 ; Wood v. State, 27 Tex. App. 538, 11 S. W. 525; United States v. Crittenden, Hempst. 61. 3. State V. Kirkman, 104 N. C. 911, 10 S. E. 312. Per Clakk, J. Any material omission in the conclusion of an indictment is as fatal as if occurring in any other portion of the instrument. State v. Rector, 126 Mo. 328, 23 S. W. 1074. In England where the words " against the peace of the king " are held material it is considered that their omission is not ground for a motion in arrest of judgment, but the objection must be taken at an earlier stage. State v. Kirkman, 104 N. C. 911, 10 S. E. 312, citing Arch. Cr. PI. p. 58. 4. Atwell V. State, 63 Ala. 61. See also Commonwealth v. Yovmg, 7 B. Mon. (Ky.) 1. 529 34 § 4:30 Conclusion, Indoesemknts and Signatuees. it is not the office of the conclusion of an indictment to restate the time or place of the commission of the offense.® An indictment may also, it is held, be amended to supply a defect caused by the omission of the conclusion.® In some States a conclusion is by statute not essential to the sufficiency of an indictment.'' And ■where it is provided by statute that an indictment is " sufficient in form for all intents and purposes if it express the charge against the defendant in a plain, intelligible and explicit manner and that it shall not be " quashed or judgment arrested " by any mere in- formality, an omission to conclude an indictment " against the peace and dignity of the State " does not vitiate it.* § 430. Effect of constitutional provision as to manner of con- clusion. — ^Where the constitution or statutes of a State provide that an indictment shall conclude in a certain manner compliance therewith is essential.* So it is said that the authorities seem to be absolutely uniform that vrhen the rule in relation to this par- ticular form in an indictment is expressly provided for by the written law of a State, it must be strictly applied, and the omission of the words thus formally prescribed, either by the constitution or 5. State V. Hudspeth, 150 Mo. 12, 269 ("contrary to the laws of saifi 51 S. W. 483. state, the good order, peace and dip- 6. Cain v. State, 4 Blaekf. (Ind.) nity thereof"). 512. Maryland. — State v. Dyoer, 85 7. State V. Schelling, 14 Iowa, 455; Md. 246, 36 Atl. 763 ("against the Commonwealth v. Freelove, 150 Mass. peace, government and dignity of the 66, 22 N. E. 435. state"). 8. State V. Kirkman, 104 N. C. Missouri. — State v. Pemberton, 30 911, 10 S. E. 312, approved in State Mo. 376 ("against the peace and dig- v. Peters, 107 N. C. 876, 12 S. E. 74. nity of the state") ; State v. Lopez. See ShiTer v. State, 41 Fla. 630, 27 19 Mo. 254 ( " against the peace and So. 36. dignity of the state"). 9. Alabama. — Cagle v. State, Tennessee. — Rice v. State, 3 (Ala. 1907), 44 So. 381; Smith v. Heisk. (Tenn.) 215 ("against the State, 139 Ala. 115, 36 So. 727 peace and dignity of the state "). ( " against the peace and dignity of Texas. — Cox v. State, 8 Tex. App. the state"). 254, 34 Am. Rep. 746 ("against tlie Georgia. — Hardin v. State, 106 peace and dignity of the state ") . Ga. 384, 32 S. E. 365, 71 Am. St. Rep. West Virginia.— State v. Mc- 530 Conclusion, Indorsements and Signatures. § 4r31 statute of a State is fatal.*" So where it is provided by the con- stitution of a State that indictments shall conclude " against the peace and dignity of the State " it is essential to the validity of an indictment that it should so conclude.** § 431. Same subject — Strictly literal compliance not neces- sary. — Though the form of the conclusion is prescribed by the constitution of the State, it seems to be a general rule that a strictly literal compliance is not necessary, it being sufficient if the conclusion is the same in substance and within the spirit and meaning of the requirement.*^ So the provision in the constitu- tion requiring all indictments to terminate with the words, " against the peace and dignity of the State," is sufficiently com- plied with by an indictment concluding " against the peace and dignity of our said State."*^ And where an indictment concluded " against the peace and dignity of the same State aforesaid " there was held to be a sufficient compliance with a constitutional pro- vision that an indictment shall conclude " against the peace and dignity of the State."** And under a constitutional provision that Clung, 35 W. Va. 280, 13 S. E. 654 to conclude properly "against the ( " against the peace and dignity of peace and dignity of the people of the state"); Emons v. State, 4 W. the state of Colorado.'' Packer v. Va. 755, 6 Am. Rep. 293 ("against People, 8 Colo. 361. the peace and dignity of the state of 10. Hardin v. State, 106 6a. 387, West Virginia"). 32 S. E. 365. An indictment which fails to con- 11. State v. Cadle, 19 Ark. 613; tain the conclusion provided fails to Anderson v. State, 5 Ark. 444. state an offense and will not support 12. Washington v. State, 53 Ala. a conviction. Cagle v. State (Ala. 29; Toney v. People, 17 111. 105; 1907), 44 So. 381. State v. Kobinson, 27 S. C. 615, 4 S. Am Indictmeut concludes E. 570; State v. Washington, 1 Bay. properly if it follows the form pre- (S. C.) 120; State v. Yancey, 1 scribed by the statute. Camp v. State, Treadw. Const. (S. C.) 237. 25 Ga. 689. 13. State v. Keau, 10 N. H. 347. Am imdictmemt fonmd after 14. State v. Powers, 59 S. C. 200, the adoptiom of the oomstitntiom 37 S. E. 690, the court after referring for an offense committed before the to the following cases in this state adoption of that instrument was held (State v. Washington, 1 Bay. 120; 531 § 432 Conclusion', Indoesements and Signatuees. all prosecutions shall be carried on " in the name and by the authority of the people of the State of Illinois," and conclude "against the peace and dignity of the same," an indictment has been held sufficient which concludes " against the peace and dignity of the people of the State of lUinois."^^ Again, where it was urged as error that each count of the indictment concluded " against the peace and dignity of the People of the State of Illinois," instead of using the tea-m " against the peace and dignity of the same Peo- ple of the State of Illinois," the court declared that whilst the lat- ter term is that used in the constitution, the omission of the word " same " does not vitiate the indictment.^® But in a case in West Virginia in which this question was raised, the court said " the precise words for the conclusion of all indictments are prescribed in this provision, and the quotation marks, which are superadded, would indicate a purpose that a strict and literal compliance in ex- act language of the constitution would be required.^ ^ § 432. Same subject — Unnecessary words — Surplusage. — Where an indictment concludes in the words prescribed by the constitution the fact that such words are followed by other words of conclusion does not vitiate the indictment, as the latter words may be rejected as surplusage.^^ So allegations in the conclusion of an indictment, beyond the words " against the peace, govern- ment and dignity of the State," are immaterial, and may be re- State V. Anthony, 1 McC. 285 ; State v. obscure the meaning of the required Robinson, 27 S. C. 618; State v. Mason, words, such additional words should 54S. C. 240, 32S. E. 357) said: "None be regarded as surplusage." of the cases above cited are rested 15. Zarresseller v. People, 17 111. upon the groimd that the provision 101. of the constitution requiring indict- 16. Kirkham v. People, 170 HI. 11, ments to conclude ' against the peace 48 N. E. 465. and dignity of the state,' are to be 17. Emons v. State, 4 W. Va. 755, regarded as directory merely, but 6 Am. Rep. 293, per Bekkshiee, J. they rest upon the ground that where 18. State v. Schloss, 93 Mo. 361, 6 an indictment, in its conclusion, con- S. W. 244. In this case the constitu- tains all the words required by the tional words " against the peace and constitution, and also contains addi- dignity of the state " were followed tional words, which do not change or by the words " and contrary to the 532 Conclusion^ Indoesements and Signatuees. § 433 jected as surplusage.^ ^ And in a case in Texas it is decided that the addition of the name of the State after the words " against the peace and dignity of the State " does not vitiate the indictment.^** And a similar conclusion is reached in Virgiuia.^^ § 433. Necessity of conclusion to each count. — The question whether, where there are several counts in an indictment, a conclu- sion to each count is necessary is one in respect to which the de- cisions are conflicting. There are several cases which are author- ity for the doctrine that where there are several counts in an indict- ment the fact that the last count contains the usual and correct con- clusion does not cure the defect in the first counts caused by the omission of the conclusion.^^ In other cases, however, it is de- cided that a conclusion to each count is not absolutely essential and that where the last count contains the proper conclusion this applies to the other counts. And this seems to be the rule sup- form of the statute in such cases made and provided." See State v. Hays, 78 Mo. 600. 19. Kichardson v. State, 66 Md. 205, 7 Atl. 43. The court said: "In respect to the conclusion of the in- dictment, on which stress has been laid by the appellant's counsel, it may be said, that so far as the omission to allege in the conclusion that what had been set forth as published, had redounded to the damage of Judge Fowler, is concerned, it is wholly im- material; and as to the allegation that it was ' to the great scandal and disgrace of the administration of justice in Baltimore county, and in contempt of the State of Maryland and its laws, and to the evil example of all others in like cases offending " we may add, that they are wholly unnecessary, and may be rejected as surplusage," per Ibving, J. 20. State v. Pratt, 44 Tex. 93. The court said : " If the name of the state being added at the end of the sentence was held to vitiate the in- dictment, it is not perceived on what principle such a ruling could have been made. The name being added neither detracts from nor adds to the sentence, as the state whose peace and dignity are affected by the com- mission of the offense can possibly be none other than the state of Texas. It is simply useless without being noxious in the indictment." Per EOBEBTS, J. 21. Brown v. Commonwealth, 86 Va. 466, 10 S. E. 745. The court said " The indictment concludes ' against the peace and dignity of the commonwealth of Virginia,' the last two words being in addition to the required form prescribed by the con- stitution. The demurrer, however. 533 § 4r34 Conclusion, Indoesements and Signatubes. ported by the majority of the decisions.^^ So in the United States Supreme Court it is said in reply to an objection that a count of an indictment is defective in that it does not conclude that the offense charged was " contrary to the form of the statutes in such case made and provided and against the peace and dignity of the United States," that it is sufficient to say that such allega- tion, which is one of a mere conclusion of law, is not of the sub- si ance of the charge, and the omission is of a matter of form, which does not tend to the prejudice of the defendant.^* § 434. Same subject — Effect of constitutional provision as to conclusion. — In determining this question it has been decided that a constitutional provision that all indictments shall conclude " against the peace and dignity of the State " requires that each count of an indictment must so conclude, it being declared that each count must be complete in itself, and capable of standing alone if the other counts are quashed.^® So in Missouri it is de- cided that each count in an indictment must conclude as required by the constitution or else it is fatally defective, and that if there are two or more counts in an indictment and the last one concludes properly, but the others do not, the conclusion in the last will wA was OTerruled, and in this there was Alexander v. State, 27 Tex. App. 533, no error." Per Servis, J. US. W. 628. 22. State v. Cadle, 19 Ark. 613; State V. Soule, 20 Me. 19; Common- ^* ^"^'''^ ^- United States, 157 wealth V. Carney, 4 Gratt. (Va.) 546. U. S. 168, 15 Sup. Ct. 586, 39 L, 23. Alabama. — McGuire v. State, Ed. 657. 37 Ala. 161. 25. Williams v. State, 47 Ark. 230, Lonisiana.— State v. Scott, 46 La. 1 S. W. 149; State v. Strickland, 10 Ann. 293, 25 So. 954. S. C. 191 ; Early v. Commonwealth, North Carolina. — State v. Beatty, 86 Va. 921, 11 S. E. 795; State v. 61 N. C. 52. McClung, 35 W. Va. 280, 13 S. E. 658, Tennessee. — Rice v. State, 3 wherein it is said : " Each count is Heisk. 215. as to this point to be regarded a sep- Texas. — Bink v. State (Tex. Cr. arate indictment, and each must have 1906), 98 S. W. 863; Stebbins v. the conclusion, and the conclusion State, 31 Tex. Cr. 294, 20 8. W. 552; found in one count, though the last, 534 Conclusion^ Indoesements and Sigwatdkeb. § 4:34 help or supply the omission in the others.*® In this same case, however, it is said that in Louisiana, Texas and Wisconsin the rule is that a constitutional provision as to the manner in which an in- dictment shall conclude is satisfied, though there are several counts, where the last count concludes according to the formula pre- scribed.*^ And in Wisconsin it is declared that where the consti- tution of the State contains such a provision in case of an in- dictment with two counts, one against the principal and another against an accessory before the fact, if the latter count contains the said formula, the court would probably be justified (in view of the uselessness of such formula) in holding this a sufficient compliance with the constitution.** And a similar doctrine is as- serted in a case in Vermont.*® And in a recent case in Ohio it is decided that where it is provided by the constitution that " all in- dictments " shall conclude in a certain way, this does not require that each count shall so conclude, and that where there is no statute which requires this it is unnecessary.^" And a similar conclusion is reached in a late case in Mississippi.*' It will be seen from these cases that the authorities are far from being in harmony in will not cure its absence from another v. Commonwealth, 20 Gratt. (Va.) covint." Per Bbannon, J. 724, wherein it is said: "The court is 26. State v. Ulrich, 96 Mo. App. of opinion that as the constitution re- 689, 70 S. W. 933, citing State v. quires that indictments shall conclude Clevenger, 25 Mo. App. 655 ; State v. ' against the peace and dignity of the Lopez, 19 Mo. 654; State v. Pember- commonwealth,' and as the first ton, 30 Mo. 676; State v. Schloss, 93 count of the indictment in this case Mo. 361. The constitution of Mis- does not so conclude, though the souri, § 38, art. 6, provides that all second count does; the first count is indictments shall conclude " against therefore fatally defective in that re- the peace and dignity of the state." spect, and the demurrer thereto ought 27. State v. Ulrich, 96 Mo. App. to have been sustained instead of 689, 70 S. W. 933, citing State v. overruled." Per Moncube, J. Scott, 48 La. Ann. 293; Alexander v. 31. Starling v. State (Misa. 1907), State, 27 Tex. App. 533; Nichols v. 43 So. 952, wherein the court said: State, 35 Wis. 308. " We are clearly of the opinion that 28. Nichols v. State, 35 Wis. 308. the words ' against the peace and dig- 29. State v. Amidon, 58 Vt. 524. nity of the State of MisBissippi/ are 30. Olendorf v. State, 64 Ohio St. only required to appear, in the lan- 118, 59 N. E. 892. But see Thompson guage of the constitution, at the con- 535 § 435 CoNCLUsioiir, Indorsements and Signatuees. their conclusions and that no rule can really be stated as clearly supported by the weight of authority. So, far, however, as the cases stand, the weight is slightly in favor of the doctrine that a conclusion to each count is not essential and that a conclusion to the final count is suflBcient. In those States, however, where there is no decision supporting such a doctrine, the better and safer practice, in view of the decisions being so much at conflict, would therefore be to have a conclusion to each count. § 435. Necessity of concluding contrary to the form of the statute. — ^Where the statute creates an offense which did not ex- ist at common law the indictment should conclude contra formam statuti.^^ So it has been declared that where an offense is created elusion of the indictment. It is not necessary that they should be re- peated after each count. The lan- guage of the constitution is : ' All indictments shall conclude against the peace and dignity of the State.' No single count in an indictment con- taining more than one is the indict- ment. The indictment is the thing which contains all the counts. There may be many counts, but there can be but one indictment. The bill of indictment, in the language of the law, is a unit, is one complete thing, and it is this bill of indictment to which the constitution has reference in section 169. The bill of indict- ment in this case did conclude, as the constitution requires, with the words ■ against the peace and dignity of the State.' Those words wherever they appear at the conclusion of an indict- ment, necessarily apply to every count in the indictment before its conclusion, and it would be the merest tautology to repeat them at the end of each count. All that is meant. when it is said that each count must be complete in itself, is that each count must completely and accurately define the offense, giving all its es- sential constituent elements, em- braced in that count; and, whenever a count in an indictment does that, it has perfectly fulfilled its office. The words in this indictment, ' against the peace and dignity of the State,' do not belong to either count, tech- nically considered. They belong to the conclusion of the whole indict- ment, as the constitution requires.'' 32. Indiana. — Fuller v. State, 1 Blackf. 63. Kentucky. — ^McCullough v. Com- monwealth, Hard. 95. Maine. — Davis v. French, 20 Me. 21. Maryland. — State v. Negro Jesse Evans, 7 Gill & J. (Md.) 290. Massachusetts. — Commonwealth v. Cooley, 10 Pick. (Mass.) 37; Com- monwealth V. Inhabitants of Spring- field, 7 Mass. 9. New York. — People v. Cook, 2 636 Conclusion, Indoesements and Signatttees. § 435 by statute, or the statute declares a common law offense, committed under peculiar circumstances not necessarily included in the orig- inal offense, punishable in a different manner from what it would be without such circumstances ; or where the nature of the conmion law offense is changed by the statute from a lower to a higher, as where a misdemeanor is changed into a felony, the indictment must be drawn with reference to the provisions of the statute, and Park. Cr. E. 12; Hughes' Case, 4 City HaU Eee. 132. PennsylTania. — Warner v. Com- monwealth, 1 Pa. St. 154, 44 Am. Dec. 114. South Carolina. — State v. Mc- Keltrick, 14 S. C. 346 ; State v. Gray, 14 Rich. L. 174. England. — ^Eeg. v. Mayor & Cor- poration of Poole, 57 Law T. N. S. 485. From the earliest age of the law, it has been conceded, that an indict- ment concluding contra pacem, charges only a violation of the com- mon law, and with such an indict- ment, the accused need only refer, when preparing for his defense, to the criminal code of the common law, to ascertain what are the ingredients constituting the offense charged, and what will vindicate or excuse him. If the facts as charged in such in- dictment, do not constitute the of- fense by the rules of common law, the party accused need do no more than to show that those rules do not em- brace the case made out in the indict- ment. To sustain a charge so made, by the aid of a statute which pro- hibits the act imputed as a crime, would be a surprise upon the accused, because the indictment gave him no notice that he was charged with n violation of a statute. State v. Negro Jesse Evans, 7 Gill & J. (Md.) 292; per Chambers, J. It is settled that indictments given by statute must conclude contra for- mam statuti as a means of notifying the accused of what law he is charged with offending and unless they so con- clude, then the charge is at common law, and if by that law the thing done be no crime, there can be no judgment. State v. Perkins, 82 N. C. 679. The office of the conclnsion "contra formam statuti" is to show the court that the action is founded on the statute, and not an action at common law. Crain v. State, 2 Yer- ger (Tenn.), 390. 'Where the same acts are declared to be an offense and punishable both by statute and by a municipal ordinance an in- dictment or complaint should con- clude contrary to the statute or the ordinance, as the case may be. State V. Gill, 89 Minn. 502, 95 N. W. 449. Examine State v. Soragon, 40 Vt. 450. In the case of a justice's -war- rant it has been held that the same particularity in this respect is re- quired as in the case of indictments and that in the case of an offense 537 § 435 Conclusion, Indoesementb and Signatubbh. conclude, contra formam statuti.^^ In this connection it has been decided that a conclusion that the offense is contrary to the form of the " statue " instead of the " statute " will not vitiate an indict- ment, especially where the necessity of a conclusion is dispensed with by statute.^* And an indictment concluding " contrary to the form of the Act of Assembly in such case made and provided " has been held sufficient.^® But it is held that it is not sufficient in an indictment for an offense created by statute to allege the same to have been committed against the law in such case pro- vided, these words not being an equivalent of the words " against the form of the statute."*® The words " contrary to the form of the statute " are in some cases dispensed with by statutory provi- sions.*^ So where by statute all common law offenses are repealed it is held that it is not necessary to the validity of an indictment that it should conclude " contrary to the form of the statute."** Again, a conclusion " contrary to the form of the statute in such case made and provided " must be intended to mean the statute of the State in which the indictment is found, as it is said that the courts of one State do not take cognizance of the criminal statutes of another State.*® So an indictment is defective which concludes against the statute of another county or State.^" The words " con- created by statute a warrant which 38. State v. Gill, 89 Minn. 602, 95 concludes " contrary to law " is de- N. W. 449. fective. State v. Lowder, 85 N. C. 39. State v. Kam, 16 La. Ann. 183. .564. 40. State v. Holly, 2 Bay (S. C), 33. State v. Cadle, 19 Ark. 621 ; 262, holding that where an indictment People V. Enock, 13 Wend. (N. Y.) charged the offense to be against the 159, 27 Am. Dec. 197n. British statute made of force in this 34. State v. Dorr, 82 Me. 341, 19 state when in fact there was no such Atl. 861. See State v. Coleman, 8 S. statute made of force here was de- C. 237. fective and that a judgment thereon 35. Slymer v. State, 62 Md. 237. ought to be arrested, the court de- 36. Commonwealth v. Inhabitants daring that if the indictment had of Stockbridge, 1 1 Mass. 279. concluded against the act of the Legis- 37. State v. Stroud, 99 Iowa, 16, lature, in such case made and pro- 68 N. W. 450; State v. Dorr, 82 Me. vided," it would have been good but 341, 19 Atl. 861. See State v. Cadle, that as it concluded against a British 19 Ark. 613; State v. Culbreath, 71 act of parliament, which never was in Ark. 80, 71 S. W. 254. force in this country, it was vitious, 538 CoXCLUSIONj InDOESEMEXTS AJSD SlGNATUEEB. § 436 trary to the form of the statute " in the conclusion of an indict^ mcnt will not meet the omission of averments of fact in the in- dictment.*^ § 436. Where statute merely declaratory of common law. — Where the crime is of common law origin and the statute on the subject is merely declaratory of the common law, the indictment is good without the conclusion contra formam statuti.*^ So in the case of an indictment for murder for which the punishment is pro- vided or altered by statute it is decided that the conclusion contra formam statuti is not essential.** And where a statute merely prescribes a mode of trial or procedure in respect to a common law offense and does not raise the act to a higher offense or impose an additional punishment, an indictment for such an offense need not conclude "■ against the form of thp statute."** And where a statute does not create an offense, but merely grades a common law offense, it is held that it is not nccissary that an indictment therefor should conclude " against the form of the statute," but that it may be at common law."*'^ So where the grade of a common law offense has been made higher by statute, the indictment should conclude against the statute, but where the punishment has been mitigated it is held that it may conclude at common law.*® and the court could not by intend- Cranch. C. C. 411; State v. Raits, 63 inent say that the British act of par- N. C. 503. liament intended to have been made Where the statute is only declara- of force here meant an act of the as- tory of what was previously an of- sembly. fense at common law without adding 41. State V. Stroud, 99 Iowa, 16, to or altering the punishment, the in- 08 N. W. 450, holding that the omis- dictment need not conclude contra sion of the word " wilfully " used in formam statuti. People v. Enoch, 13 tiefining an offense in a statute is not Wend. (X. Y.) 159, 27 Am Dec. 197n. supplied by the conclusion contrary 43. State v. Harris, 12 Nev. 414; to the form of the statute. State v. Raits, 63 N. C. 603. See 42. Fuller v. State, 1 Blackf. Hudson v. State, 1 Blackf. (Ind.) (Ind.) 63; followed in Hudson v. 317. State, 1 Blackf. (Ind.) 317, wherein 44. State v. Dunkley, 25 N. C. it is held that the conclusion "con- 117. trary to law " of an indictment for 45. State v. Coon, 18 Minn. 518. murder is sufScient. 46. State v. Lawrence, 81 N. C. See also United States v. Norris, 1 522. See State v. Raits, 63 N. C. 503. 539 § 437 Conclusion^ Indoesements and Signatures. But where, what was a misdemeanor only at common law, is made punishable as a felony by statute, or where the statute declares a common law offense, committed under peculiar circumstances and with a particular intent, not necessarily included in the original offense, punishable in a different manner from what it would be without such circumstances and intent, an indictment for the statute offense, bad as such for insufficient or defective descrip- tion, will not be good at common law.*'^ § 437. Indictment for common law offense — Conclusion con- trary to statute — Surplusage — Where an offense as described in the indictment is punishable at common law only, although the indictment aver it to have been committed against the form of the statute, the conclusion may be rejected as surplusage, and the in- dictment held good as for a common law offense.*® In this con- nection it is said in an early ease in Pennsylvania : " It was for- merly held that no indictment grounded on a statute and conclud- ing contra formam statuti, could be maintained as an indictment at common law ; but the contrary is now adjudged, and the words contra formam statuti shall be rejected as useless where the offense is prohibited by the common law only. The substance of the in- dictment being found, the rest is but surplusage, which hurteth not the verdict, and it shall be taken as it may stand by law."** So concluding an indictment for keeping a common gaming house " contrary to the form of the statute in such case made and pro- vided " will not vitiate it, when it is coupled with an allegation 47. State v. Gove, 34 N. H. 510. 42 N. H. 393; State v. Gove, 34 N. 48. Connecticnt. — Southworth v. H. 510; State v. Buckman, 8 N. H. State, 5 Conn. 325; Knowlea v. State, 203. 3 Day, 103. New Jersey.— Cruiser v. State, 18 Kentucky. — Gregory v. Common- N. J. L. 206. wealth, 2 Dana, 417. New York.— Syracuse & TuUy Maryland. — Davis v. State, 3 Plank Road Co. v. People, 66 Barb. Har. & J. 154. 25. Massachnsetts. — Commonwealtli v. South Carolina. — State v. Wim- Keynolds, 14 Gray, 87, 74 Am. Dec. berly, 3 McCord L. 190. 665; Commonwealth v. Hoxey, 16 Vermont. — State v. Phelps, 11 Vt. Mass. 385. 116, 34 Am. Dec. 672. New Hampshire.- State v. Staaw, 49. Kespublica v. Newell, 3 Yeates 540 Conclusion, Indobsements and Signatuees. § 438 that the oflfense charged was a " common nuisance " and a further conclusion " against the peace and dignity of the State," as the words "contrary to the statute" will be disregarded as surplus- age.s" §, 438. Use of word " statutes " or " statute " in conclusion. — The question of the suflBciency of an indictment which concludes contrary to the " statute " where founded on more than one statute, or contrary to the " statutes," where founded on one statute, is one upon which the decisions are not in harmony. In several cases it has been decided that a conclusion " contrary to the form of tbe statutes " is essential where an indictment is founded on two statutes f^ as where one statute creates the offense and an- other directs the penalty.*^ In other cases, however, it is held that *uch a conclusion is not a fatal objection.^^ In this connection it has been decided that where one statute creates an offense and inflicts the penalty, and a later statute imposes another and further pen- alty, an indictment for such offense may properly conclude in the singular.®* And a conclusion " contrary to the form of the sta- tute " has also been held proper where the second statute simply abridges or limits the discretion of the court with respect to the amoimt of the fine and the duration of the imprisonment, but in no wise attaches the penalty or punishment to the offense f^ where the latter statute only qualifies the method of proceeding upon the earlier statute, without altering the substance of its purview;^® or where the second statute merely makes some slight alterations (Pa.), 407, 414, 2 Am. Dec. 381. Per G. (Md.) 407; State v. Pool, 13 N. Smith, J. C. 202. 50. Vanderworker v. State, 13 53. State v. Dayton, 23 N. J. L. Ark. 700. 49, 53 Am. Dec. 270; People v. Wal- 51. Tevi8 V. State, 8 Blackf. bridge, 6 Cow. (N. Y.) 512; State v. (Ind.) 303; Francisco v. State, 1 Wilbor, 1 R. I. 199, 36 Am. Dec. 245; Ind. 179; State v. Sandy, 25 N. C. State v. Eobbins, 1 Strobh. (S. C.) 570; State v. Jim, 3 Murph. (N. C.) 3. 355. 52. State v. Moses, 7 Blackf. 54. Butman's Case, 8 Me. 113. (Ind.) 244. See also King v. State, 55. State v. Berry, 9 N. J. L. 374. 2 Ind. 523; Morrison v. Witham, 10 56. Morrison v. Witham, 10 Ma. Me. 425; State v. Cassel, 2 Harr. & 421. 541 § 439 Conclusion^ Indoesements and Signatuees. in the prior statute, which do not affect the substance of the offense."^ And in an early case in New York it is said in this connection by Chancellor Walworth : " Where the statute creating the offense is only amended or regulated, or altered in parts thereof which do not relate to the offense or to the punishment thereof, a conclusion in the singular is proper."®® Where the offense and penalty are both declared by the same statute the indictment should conclude in the singular,^® and a failure to so conclude is held to be fatal.®'' So it is declared in a nearly case in Maryland that where an indictment is founded upon a single statute, and not upon any other in conjunction with it, it is clear that, its conclusion must be in the singular.*^ Other cases, however, hold that if the offense is punishable by a single statute only, and the conclusion of the indictment is against the statutes, the conclusion will be con- sidered good.®^ And it is decided that a defect arising from a conclusion in the plural where it should be in the singular may be immaterial by reason of a statute.*^ It will be seen from these cases, most of which are early decisions, that the authorities are in decided conflict upon this question. At the present time, how- ever, in view of the statutes in force in the various States, which dispense with many of the strict technicalities regarded as essen- tial in the earlier decision, where the rights of the accused are not prejudiced, a conclusion either in the singular, where founded on more than one statute, or in the plural, where founded on one statute, would not be regarded as a fatal defect. § 439. Necessity of indorsement " a true bill." — The indorse- ment " a true bill " which was required at common law as an es- sential to a valid indictment is in several S-tates, independent of 57. Kane v. People, 8 Wend. (N. viction judgment will be arrested. Y.) 203. 61. State v. Caasel, 2 Harr. & G. 58. Kane v. People, 8 Wend. (N. (Md.) 407. \.) 203. 212. 62. Carter v. State, 2 Ind. 617; 59. Crawford v. State, 2 Ind. 132; Commonwealth v. Hooper, 5 Pick. Morrison v. Witham, 10 Me. 421. (Mass.) 42; Townley v. State, 18 N. 60. State v. Sandy, 25 N. C. 670, J. L. 311. 312. holding in such a case that after con- 63. Michael v. State, 40 Fla. 26S, 642 Conclusion, Indoksements and Signattjkes. § 439 any statutory provision to that eifect, also a requisite,®* it being declared that an inference that it was found a true bill arising 83 So. 944, decided under Rev. Stat., { 2893, providing that " No indict- ment shall be quashed or judgment be arrested, or new trial be granted, on account of any defect in the form ot the indictment, or of any mis- joinder of oflfenses, or for any cause whatsoever, unless the court shall be of opinion that the indictment is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense, «r expose him after conviction or acquittal to substantial danger of a new prosecution for the same of- fense." 64. Mose V. State, 35 Ala. 421; Nomaque v. People, 1 111. 145, 12 Am. Dec. 157; Webster's Case, 5 Me. 432; State v. McBroom, 127 N. C. 528, 37 S. E. 193; State v. McLain, 104 N. C. 894, 10 S. E. 518. By the English practice the uniform mode of authenticating an indictment is " to enter upon it a true bill, and the foreman, accom- panied by the grand jurors, carries the indictment so endorsed into court.'' State v. Squire, 10 N. H. S§8. In this oonntry the practice has been, after an indictment has been duly enrolled, to add the finding: ■' This is a true bill," and affix to it the signature of the foreman; and indictments thus found are presented to the court in the presence of the jury. State v. Squire, 10 N. H. 558. It shmild appear from the record that an indictment was re- turned into open court " a true bill." State V. Muzingo, Meigs. (Tenn.) 112. It is immaterial on. xvhat part of an indictment the indorsement and grand jury foreman's signature appears. Blume v. State, 154 Ind. 343, 56 N. E. 771. Application of -words " a trne bill."— The words " a true bill " will be taken as applying to offense as charged in the body of the indict- ment and not to that designated in the indorsement. Cherry v. State, 6 Fla. 679; Collins v. People, 39 111. 233; State v. DeHart, 109 La. 570, 33 So. 605. And where more than one defend- ant is indicted the indorsement " a true bill " applies to all of the de- fendants. Thurmond v. State, 55 Ga. 598. Effect of indorsement " a true bill." — The presumption arises that an indictment was properly presented where it is indorsed a true bill and signed by the foreman of the grand jury. State v. Weaver, 104 N. C. 758, 10 S. E. 486. And it is also pre- sumed that it was found by a legal grand jury. Dutell v. State, 4 G. Greene (Iowa), 125; Harriman v. State, 2 G. Greene (Iowa), 270. That a copy has no indorse- ment thereon of " true bill " is not a good ground for a motion in arrest of judgment. Such an exception goes to the form of the indictment, does not affect the real merits of the offense charged, and should be urged before 543 § 439 CojTCLTrsiON, Indoesements and Sigh-atitees. from the fact that it was returned into court is not justified.^® So it has been said that the indorsement by the grand jury of a bill as a " true bill " is the perfection of the indictment, that it touches it principally, and is the life of it.** And the fact that an indict- ment is endorsed " a true bill," the endorsement signed by the foreman, and the indictment properly filed, are evidence that the indictment has been found by the grand jury.*^ So in a case in Tennessee it is held that there being no such endorsement on the bill, and nothing in the record to show that the indictment was returned a true bill, the indictment is bad.** And where this endorsement is essential it is decided that the defect, caused by its omission, is not cured by a statute providing that an indictment is to be regarded as sufficient where the charge is expressed in a plain, intelligible and explicit manner, and that a mere infor- mality shall not be ground for quashing the indictment or for an arrest of judgment if sufficient matter is stated to enable the court to proceed to judgment.*® Evidence, however, is held admissible is a true bill indorsed upon an in- dictment is no part of the indictment but simply the statutory mode of authenticating i'^. Brotherton v. People, 75 N. Y. 159; see State v. Thacher Coal & Coke Co., 49 W. Va. 140, 38 S. E. 539. 65. State v. McBroom, 127 N. C. 528, 37 S. E. 193. 66. Mose V. State, 35 Ala. 421. 67. State v. McCartey, 17 Minn. 76; see State v. O'Brien, 18 K. I. 105, 25 Atl. 910. The indorsement of a bill " a true bill " and the signing thereof by the foreman is the evidence which the law requires to show a concur- rence of the requisite number of the grand jury in the finding. Laurent V. State, 1 Kan. 313. 68. Gunkle v. State, 6 Baxt. (Tenn.) 625. 69. State v. McBroom, 127 N. C. 528, 37 S. E. 193. trial. Hughes v. State, 79 Ga. 39. See State v. Burgess, 24 Mo. 381. Sufficiency of indorsement. — The indorsement upon an indictment of the words " true bill " followed by the signature of the foreman of the grand jury, has been held sufficient, the omission of " a " not rendering it defective (Martin v. State, 30 Neb. 507, 46 N. W. 621; State v. Elkins, Meigs [Tenn.], 109; State v. David- son, 12 Vt. 300), as has also the in- dorsement " a bill." Sparks v. Com- monwealth, 9 Pa. St. 354. But an in- dorsement " this bill found " has' been held insufficient. State v. McBroom, 127 N. C. 528, 37 S. E. 193. A printed indorsement " a true bill " followed by the name of the foreman of the grand jury is suffi- cient. State V. Hogan, 31 Mo. 342. Certificate of foreman no part of indictment. — The certificate of the foreman of the grand jury that it 544: Conclusion, Indoksements and Signatuees. § 440 to show that an indictment was, by mistake, endorsed " a true bilL"''" §1 440. Same subject — Contrary view. — In a note to an early case in Illinois in which this doctrine is asserted, that the endorse- ment " a true bill " is essentiaV^ it is said: " If an indictment has been fairly and legally found, if the offense is charged in the manner required by the laws, if the court has received it from the grand jury as a true bill, and so entered it on its records, the omis- sion of a useless form, the reason for which has, long since, become obsolete, ought not to intervene to prevent a fair and im- partial trial on the merits." And this is the rule which is ac- cepted in many jurisdictions where such an endorsement is not required by statute.''^ So it is said in a case in West Virginia that the fact that an indictment was not endorsed a true biU and signed by the foreman of the grand jury, while highly proper for the purpose of additional identification, has never been held abso- lutely essential.''^ And it has been declared by the United States Supreme Court: " There is in the Federal statutes no mandatory provision requiring such endorsement or authentication, and the matter must, therefore, be determined on general principles. It may be conceded that in the mother country, formerly at least, such endorsement and authentication were essential. The en- 70. State v. Horton, 63 N. C. 595, Maasachnsetts. — Commonwealth v. holding that if a bill of indictment Smyth, 11 Gush. 473. be endorsed " a true bill " by mistake, Uew Jersey. — State t. Magrath, when the grand jury had ordered 44 u. J. L. 227. their clerk to endorse it "not a true j,^^^^ Carolina.— State T. Sul- bill," the defendant may show that ^^^^ j^g N. C. 569, 54 S. E. 841. fact by aflSdavit or otherwise, either 1. X 1. Virginia. — Miller v. Common- upon a motion to quash or upon a ,1, ,^t , „, „ „ « . , . ^ ^ i J 4.1, tv.,. -wealth (Va.), 21 S. E. 499; White v. plea in abatement, and thereupon the " ,, ' . ^. ■ J- i i 1, ij K „ =1,..^ Commonwealth, 29 Gratt. 824; Price mdic-^ment should be quashed. L-. ^, r^ ^^ „.„ __ „ r> i„ 1 Til i/iK ^- Commonwealth, 21 Gratt. 846. 71. Nomaque v. People, 1 111. 145, 12 Am. Dec. 157. West Virginia. — State y. Grove 72. United States.— Frisbie v. (W. Va. 1907), 57 S. E. 296. United States, 157 U. S. 163, 15 Sup. 73. State v. Hill, 48 W. Va. 132, Ct. 586, 39 L. Ed. 657. 35 S. E. 831. 545 3& § 441 Conclusion, Indoesements and Signatuees. dorsement ia parcel of the indictment and the perfection of it.^* But this grew out of the practice which there obtained. The bills of indictment or formal accusations of crime were prepared and presented to the grand jury, who, after investigation, either ap- proved or disapproved of the accusation, and indicated their action by the endorsement, ' a true bill ' or ' ignoramus,' or sometimes, in lieu of the latter, ' not found,' and all the bills thus acted upon were returned by the grand jury to the court. In this way the endorsement became the evidence, if not the only evidence, to the court of their action. But in this country the common practice is for the grand jury to investigate any alleged crime, no matcer how or by whom suggested to them, and after determining that the evidence is sufficient to justify putting the party suspected on trial, to direct the preparation of the formal charge or indictment.. Thus they return into court only those accusations which they have approved, and the fact that they thus return them into court is evidence of such approval, and the formal endorsement loses its essential character. "''' So the fact that the record of a criminal cause, on a change of venue to another county, fails to show that the indictment therein had been endorsed " a true bill," over the signature of the foreman of the grand jury, is not ground for a motion to quash.''® §' 441. Same subject — Statutory provisions requiring en- dorsement. — In some States by statute it is essential to the suffi- ciency of an indictment that it should be endorsed " a true bill."^' So in Indiana it has been held that a statute requiring the en- dorsement " a true bill " on the back of an indictment is impera tive, and that in the absence of such endorsement, although the name of the foreman is endorsed thereon, the indictment is bad 74. King V. Ford, Yelv. 99. Florida.— Alden v. State, 18 75. Frisbie v. United States, 157 Florida, 187. U. S. 163, 15 Sup. Ct. 586, 39 L. Ed. lUinols.— Gardner v. People, 4 657. 111. 83. 76. Beard v. State, 67 Ind. 8. Indiana.— State t. Buntin, 123 77. Colorado. — Board of County Ind. 124, 23 N. £. 1140; Cooper v. Com. T. Graham, 4 Colo. 201. State, 79 Ind. 206. 546 Conclusion, Indoesements and Signatuees. § 4:4:2, and may be taken advantage of by a motion to quashJ* But where the statute provides that an indictment shall be set aside, upon motion of the defendant, when not endorsed " a true bill," provided the motion be made before a demurrer or plea is inter- posed, and that if not thus made the defendant shall be precluded from afterward taking the objection, an objection that an indict- ment is not so endorsed must be raised before demurrer or plea.''^ And where the endorsement upon an indictment is in substantial compliance, although not in strict accordance, with the code, it is sufficient if it appears that the indictment was legally found aad presented by the grand jury.^" § 442. Endorsement of names of witnesses. — It is not, as a general rule, essential to the validity of an indictment that there should be an endorsement thereon of the name of the witnesses upon whose evidence the indictment was found, it being held that a statutory provision requiring such an endorsement is merely directory.*^ So the fact that the record contains no endorsement of the names of witnesses upon the indictment, as required by the New York Code of Criminal Procedure, does not overcome the presumption that the indictment was based upon legal and suffi- Kentncky. — Oliver v. Common- (Va.) 669; State v. Shores, 31 W. wealth, 95 Ky. 372, 15 Ky. Law Eep. Va. 491. 7 S. E. 413. 662, 25 S. W. 600. A failure to indorse tbe names Xjonisiana. — State v. Logan, 104 is not a ground for a motion in La. 254, 28 So. 912. arrest of judgment (State v. Sultan, Tennessee. — Bird v. State, 103 142 N. C. 569, 54 S. E. 841 ) , or for a Tenn. 343, 52 S. W. 1076. demurrer or a plea in abatement. 78. State v. Bvmtin, 123 Ind. 124, Parker v. State, 125 Ala. 86, 27 So. 23 N. E. 1140. 780. ■ 79. People v. Lawrence, 21 Cal. Indorsement of names after 368. indictment filed. — ^Names of wit- 80. Dixon v. State, 4 G. Greene nesses may be indorsed after the in- (lowa), 381. dictment has been filed (Germolgez v. 81. Steele v. State, 1 Tex. 142; Stat«, 99 Ala. 216), and prior to the Shelton v. Commonwealth, 89 Va. commencement of the trial. State v. 450, 16 S. E. 355; Commonwealth v. Doyle, 107 Mo. 36, 17 S. W. 751. And Williams, 5 Gratt. (Va.) 702; it has been held that such an in- Wortham v. United States, 5 Rand, doraement may be made at the trial. 547 g 442 Conclusion, Indoksements and Signatuees. eient evidence.*^ In some jurisdictions, however, it is held that a, statutory provision to this effect must be complied with. So in. Iowa it is decided that where it is provided by statute that the names of the witnesses on whose evidence an indictment is found must be endoi'sed thereon before it is presented to court and must be, with the minutes of the evidence of such witnesses, presented to the court, a compliance with such requirement is essential, and an indictment not so returned will, on motion, be set aside.*^ Such Johnson v. State, 34 Neb. 257, 51 N. W. 835; compare People v. Howes, 81 iMich. 396, 45 N. W. 961. Tbe coiurt may order the re- turn of the indictment to the grand jnry to have the names in- dorsed thereon. State v. McNamara, J 00 Mo. 100, 13 S. W. 938. It is prima facie evidence where name of a witness is indorsed that the indictment was found on his testimony. Virginia v. Gordon, 1 Cranch. C. C. 48. Where the gurname and initials of the christian name are indorsed there is a sufficient com- pliance with a statutory requirement as to indorsement of names of wit- nesses. Basye v. State, 45 Neb. 261, 63 N. W. 811. The accnsed acquires no right from the fact that the names of wit- nesses are indorsed to demand on his trial that the prosecution shall call and swear all of them. State v. Ford, 42 La. Ann. 255, 7 So. 696. Betnm of list of tidtnesses for term. — In Hathaway v. State, 32 Fla. 56, 13 So. 592, it is decided that, under a statute requiring the foreman of every grand jury to re- turn to the court a list under his hand of all witnesses who shall have been sworn before the grand jury during the term, to be filed of record by the clerk, compliance or non-com- pliance therewith could not in any way affect the validity of any special indictment that might be regularly found and presented by any such grand Jury or the rights of any such indicted individual. 82. People v. Glen, 173 N. Y. 395, 66 N. E. 112; see §271 New York Code Cr. Proc. 83. State v. Hasty, 121 Iowa, 507, 90 N. W. 1115, decided under Iowa Code, § 5276 et seq. The minntes returned are con- clusive under such m statute as to whether all witnesses examined are indorsed, and neither the affidavits of jurors nor admissions by the county attorney are receivable to contradict them. State v. Miller, 95 Iowa, 368, 64 N. W. 288. In this connection, however, it is decided in a later case in this state that the fact that the transcript of the evidence of the ex- amination before the magistrate, in- stead of a minute thereof made by the clerk of the grand jury, was re- turned with the indictment, is not prejudicial to the defendant. State v. Turner, 114 Iowa, 426, 87 N. W. 287. It was said in this case that the 548 Conclusion, Indoesements and Signattjbes. § 443 a statute does not, however, render it necessary that the name of every witness shall be endorsed, but only those who give some evi- dence in reference to the matter under investigation.** And it has been decided that the failure to endorse the names of witnesses who gave evidence will not cause an indictment to be set aside unless they gave evidence which contributed to the finding of the indictment.*^ § 443. Endorsement of title of cause. — In the absence of a statute requiring an endorsement of the title of the cause upon an indictment, such an endorsement is not necessary.*® So an en- dorsement by the prosecuting officer of the title of the case is to be regarded as a mere memorandum for the convenience of reference to distinguish it from other papers of a similar character. It con- stitutes no part of the indictment, it imparts no vitality, nor does transcript informed the defendants more fully of the evidence against them than would the minute thereof and as fully as to the names of the witnesses to be examined. Under the code in lotra an in- dictment may be found " upon the minutes of the evidence given by wit- nesses before the committing magis- trate." Iowa Code, § 4273. Under this provision it was decided, there being no requirement that the person writing out the testimony should be sworn, that where the stenographic notes of the evidence of witnesses upon the preliminary examination in a criminal cause, taken by one not under oath, were transcribed by the stenographer in typewriting, and such copy was certified to by the justice, and returned to the clerk of the Dis- trict Court as the minutes of the testimony taken before him on such examination, such certified transcript was sufSciently authenticated to au- thorize the grand jury to act upon ir. and to endorse the names of the wit- nesses given therein upon the indict- ment. State T. Wise, 83 Iowa, 596, 50 N. W. 59. 84. " The names of witnesses ex- amined before the grand jury who give evidence concerning the case in hand, and none others, should be in- dorsed on the indictment. The stat- ute does not require the folly of in- dorsing the names of persons who have no knowledge, and give no evi- dence touching the matter under in- vestigation, merely because they have been called before the grand jury and inquired of in reference thereto." Per MnxEB, J., in State v. Little, 42 Iowa, 51. See also State v. Lewis, 96 Iowa, 286, 65 N. W. 295. 85. State v. Miller, 95 Iowa, 368, 64 N. W. 288. See State v. Hawks, 56 Minn. 129, 57 N. W. 455. 86. State v. Marion, 14 Mont. 458, 36 Pac. 1044. 549 § 444 Conclusion, Indorsements and Signattjees. it give any validity to the instrument. ^^ And in a case in Vir- ginia where an indictment was for breaking into a house in the day time and stealing money therefrom, and the grand jury en- dorsed it, " An indictment for larceny, A true bill," and the prisoner wag tried upon it, and there was a general verdict of guilty, it was held that there was no error in overruling a motion in arrest of judgment, on the ground that the grand jury only found an indictment against him for larceny, whilst the indict- ment charged him with housebreaking and larceny.*® So in an early case it is decided that the omission of a letter in the title of a bill found by a grand jury is not a good ground of a motion in arrest of judgment, where the prisoner has pleaded to it, and been convicted on it, especially where the name is properly stated in the body of the indictment itself.^® § 444. Endorsement of name or nature of offense. — ^Where there is no statutory provision requiring it, an endorsement upon an indictment of the name or nature of the offense is not essential to its validity.^" So an indictment is not vitiated by the fact that there is an endorsement thereon of an offense which is differ- ent from that stated in the body of the indictment.®* So it is said in this connection : " If to this endorsement on the indictment of the words ' a true bill ' there is added, as is frequently done, a brief description of the contents of the indictment, such addition to these words ' a true bill,' though signed by the foreman of the grand jury, would institute no part of their charge or action, but would be considered as mere surplusage; and as such additions to these words ' a true bill ' can serve no useful purpose, they ought not to be made. If, however, such additions are made, they will be regarded as surplusage; and if, therefore, they are incor- rect or even inconsistent with the indictment, they will not vitiate 87. Cherrj- v. State, 6 Fla. 679. 90. Cherry v. State, 6 Fla. 679; 88. Hall's Case, 3 Gratt. (Va.) State v. Rohfrischt, 12 La. Am. 382j 593. State v. Fitzpatriek, 8 W. Va. 707. 89. State v. Duestor, 1 Bay (S. C), 377. 91. Collins v. People, 39 111. 233. 550 Conclusion^ Indoesements and Signatuehb. § 445 it, as they will be regarded as no part of the finding ol the grand jury,"®* § 446. Necessity of signature of foreman of grand jury. — It is said in an early case in JSIorth Carolina that neither a present- ment of a grand jury nor an indictment requires necessarily that it should be signed by any one.** And it may be stated as a gen- eral rule that although it is the practice for the foreman to sign his name to the finding of the grand jury,®* yet, in the absence of a statute to the contrary, such signature is not essential.®^ And in a late case in Georgia it is said that there is no positive law re- quiring that the foreman of the grand jury shall sign the finding of true bill at all. It was not required at common law. If it be indispensable that the foreman shall sign it, the defect arising from failure to sign it is at least not ground for a motion in ar- rest of judgment.®® So in an early case in South Carolina it was held that the finding of a grand jury in writing which had been publicly announced by the clerk in their presence, was good, al- 92. State v. Heaton, 23 W. Va. 779. 93. State v. Cox, 28 N. C. 440. 94r. It is the practice for the foreman to sign his name to the find- ing of the grand jury; and it seems to be a salutary practice, as it tends to the more complete identification of the instrument containing the ac- cusation. We do not know in what it had its origin; but though useful and proper it does not seem to be essential, nor to have been, at any time the course in England. State v. Calhoun, 18 N. C. 374. 95. Georgia. — ^McAllister v. State (Ga. 1907), 58 S. B. 1110. KemtBoky. — Commonwealth v. Ripperdon, 1 Litt. Sel. Cas. 194. North Carolina. — State t. Mace, 86 N. C. 668. South Carolina. — State v. Creigh- ton, 1 Nott. & McC. 256. Texas. — State v. Flores, 33 Tex. 444; State v. Powell, 24 Tex. 135; Eobinson v. State, 24 Tex. App. 4, 5 S. W. 509. These cases were decided under a provision of the code that the want of the signature of the fore- man of the grand jury is not a mat- ter of exception to an indictment and does not affect its validity. Virginia. — Price t. Common- wealth, 21 Gratt. 846. West Virginia.— State v. Hill, 48 W. Va. 132, 35 S. E. 831. 9&. McAllister v. State (Ga. 1907), 58 S. E. 1110; see Barlow v. State, 127 Ga. 62, 56 S. B. 131. 551 § 445 Conclusion^ Indoesements and Sionatubes. though not signed by the foreman.*^ The court said in this case : " The finding of the grand jury is an expression of their convic- tion as to the truth of the charge contained in the indictment, and it is only necessary that it should be done in such a manner as to prevent misconstruction or perversion. It has long been a custom in this State for the foreman of a grand jury to sign their finding,^ and perhaps it vsrould still be advisable to adhere to it. But I concur in the opinion that its being in writing, and having been publicly announced by the clerk, as is invariably the case, in the presence of the grand jury, is a sufficient guard against misconstruc- tion or perversion ; and as there is no positive law requiring it that it is not essentially necessary to its validity that it should be signed by the foreman."^* And it not being necessary that the name of the foreman of the grand jury appear at the bottom of the indictment, it is immaterial that the district attorney was per- mitted to add the name after the trial began.®* In other cases, however, it is held that indictments found by the grand jury should be signed by the foreman.^ And in this connection it has been held that, where a trial had been commenced and it was then discovered that the indictment was not signed by the foreman of the grand jury, no further proceedings could be had on it.* And in another case, where an indictment was returned into court, but the signature of the foreman was by accident omitted, it was held that it could not afterwards be affixed by the foreman, or amended, except on recommitment to the jury.^ Where, by statute, a bill should be endorsed " a true bill " and signed by the foreman, such endorsement and signature are essential to validity.* In other 97. State v. Creighton, 1 Nott. & Thach. Cr. Cas. (Mass.) 116. McC. (S. C.) 256. 3. State v. Squire, 10 N. H. 558. 98. Per Johnson, J. 4. Colorado. — Board of County 99. James v. State (Tex. Cr. Comm'rs v. Graham, 4 Colo. 201. 1907), 105 8. W. 179. Flopida.— Alden v. State, 18 1. Nomaquc v. People, 1 111. 145, Florida, 187. 12 Am. Dec. 157; State v. Squire, 10 Illinoii. — Gardner v. People, 4 N. H. 558. See Coburn v. State 111. 83. (Ala. 1907), 44 So. 58. Indiana. — Cooper v. State, 1» 2. Commonwealth v. Sargent, Ind. 206. 552 Conclusion, Indoesements and Signatures. § 446 cases, however, it is decided that a statutory provision that the foreman of the grand jury shall sign the endorsement " a true bill " upon indictments, is directory, and that the objection to the irregularity is waived, unless made before pleading.^ § 446. Signature of foremaii — What is sufficient. — ^An indict- ment is properly certified by the foreman of the grand jury al- though in affixing his signature he makes use of only the initials of his christian name.® So it has been declared that there is no rule of the common law rendering official acts void when signed with the initial letters of the christian name of the public official whose signature may be required and that where there is no statu- tory provision to this effect an indictment is properly certified by the foreman of the grand jury, although in affixing his signature he makes use of only the initials of his christian name.'' And a difference between the designation of the foreman in the endorse- ment and the body of the indictment constitutes no reason for Kentveky. — Oliver v. Common- wealth, 95 Ky. 372, 25 S. W. 600. Iionisiana. — State v. Logan, 104 La. 254, 28 So. 912. Tennessee. — Bird v. State, 103 Tenn. 343, 52 S. W. 1076. 5. State V. Agnew, 52 Ark. 275, 12 S. W. 563. Time of maklne objection. — Such a defect should be taken advan- tage of by a motion to set aside the indictment or by demurrer. State v. Shippey, 10 Minn. 223, 88 Am. Dec. 70; State y. Murphy, 47 Mo. 274. A defect in an indictment arising from the fact that it is not signed or indorsed by the foreman of the grand jury is waived where the accused goes to trial on a plea of not guilty. People v. Johnston, 48 Cal. 549. See also McGuffie v. State, 17 Ga. 498. So a statutory provision requiring the foreman of a grand jury to cer- tify under his hand the indictment is a true bill, is merely directory and after a defendant has been convicted, upon an indictment not thus certified, it is too late, upon a motion in ar- rest, to raise this objection. State v. Mertens, 14 Mo. 94. 6. Alabama. — Germolgez v. State, 99 Ala. 216. Indiana. — ^Anderson v. State, 26 Ind. 89; Zimmerman v. State (Ind. App.), 31 N. E. 550. Iowa. — State v. Groome, 10 Iowa, 308. Maine. — State v. Taggart, 38 Me. 298. Mississippi. — Easterling v. State, 35 Miss. 210. 7. State V. Taggart, 38 Me. 298. See also Easterling v. State, 35 Miss. 210. 553 § 446 Conclusion, Indoesembnts and Signatuebs. quashing the indictment.* It is also immaterial on what part of an indictment the endorsement and grand jury foreman's signature appear.* So the fact that the name of the foreman is endorsed preceding the words " a true bill " is no ground for quashing an indictment.^" And where a statute provides that indictments shall be signed by the foreman, but does not direct where the signa- ture is to be placed, the affixing of the signature after the words " a true biU " is sufficients^ And, though it is the better practice, it is not essential to the validity of an indictment, in the absence of a statute requiring it, that the foreman of a grand jury, in en- dorsing an indictment " a true bill," should describe himself as foreman, as the court, having appointed him, is presumed to know who the foreman is.^^ And where a bill of indictment was en- dorsed " a true bill," and to the signature of the foreman the let- ters " F. G. J." were added, it was held sufficient to indicate that he acted as foreman, where it appeared from the record that such person was in fact the foreman of the grand jury when the bill was found. And it was declared in this case that even if no letters had been added, after his name, his subscription to the endorse- 8. Meadows v. State, 121 Ga. 362, 495, it was also held that the fact 49 S. E. 268. See Deitz v. State, 123 that a bill of indictment was en- Ind. 85, 23 N. E. 1086, holding that dorsed by Alexander E. Hutchinson, where the name of Thomas Bel- instead of Hutcheson, as foreman of lows appeared on the indictment as the grand jury, no valid objee- the foreman of the grand jury re- tion thereto was, though it appeared turning the same, while the tran- by the record that Alexander R. script recited that George Bellows Hutcheson was appointed foreman by acted as such foreman, it must be the court, it being declared that if presumed that he whose name ap- necessary the court will intend the peared on the indictment was the two names to indicate the same per- duly appointed foreman, and that the son. recital to the contrary in the tran- 9. Blume v. State, 154 Ind. 343, 51 script was a mistake of the clerk and N. B. 771. that it must be also presumed that 10. State v. Bowman, 103 Ind. 69. the judge whose duty it was to in- H. Overshiner v. Commonwealth, spect the indictment, knew who the 2 B. Mon. (Ky.) 344. foreman of the grand jury was at the 12. Whiting v. State, 48 Ohio St. time the indictment was returned. 220, 27 N. E. 96; State v. Brown, In State v. Stedman, 7 Port. (Ala.) 31 Vt. 602. See Commonwealth 554 Conclusion, Indoksements and Signattteis. § M7 ment could only be referred to his official act as foreman, and would therefore be sufficient.^* Again, it has been decided that an indictment is not vitiated by the fact that the name of the foreman is signed by another person.^* And it is no objection to an indictment that it is endorsed " a true bill " by one of the jury as " special foreman of the grand jury," when his appointment as such pro tern appears of record, though the record fails to show the absence of the regular foreman or that he was excused or dis- charged, this, being presumed in the absence of proof to the con- trary.^** §1 447. Necessity of signature of public prosecutor. — ^It is a general rule that, in the absence of a statute to the contrary, it is not an essential to a valid indictment that it should be signed by the public prosecutor,^* it being sufficient if found by the grand V. Walters, 6 Dana (Ky.), 291, liolding that the words " a true bill " must be endorsed upon every indictment found by the grand jury but that there is no law requir- ing that they shall be signed by the foreman and that 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. 13. State V. Chandler, 9 N. C. 439. The court said : " It is also ob- jected, that the person who subscribes the indorsement on the bill, does not appear to have done so as foreman; that the letters, following his name, are equivocal, and may import many things. But it appears upon this record, that William Bullock was foreman of the grand jury when the bill was found, and therefore, if no letters had been added after his name, his subscription to the indorse- ment could only be referred to his official act as foreman. The signa- ture cannot be referred to Bullock's natural or private capacity, for that gave him no right to authenticate an official paper, but his political capa- city did; in the same manner, as if a magistrate signs a warrant, or a judgment, without any letters indi- cating his judicial character, the sig- nature must, nevertheless, be re- ferred to that." 14. State V. Powell, 24 Tex. 135; Witherspoon v. State, 39 Tex. Cr. 65, 44 S. W. 164, 1096. 15. State v. Collins, & Baxt. (Tenn.) 151. 16. United States. — ^Ex parte Lane, 135 U. S. 443, 10 Sup. Ct. 760, 34 L. Ed. 219. Arkansas. — Watkins t. State, 37 Ark. 370. Georgia. — Newman v. State, 101 Ga. 534, 28 S. E. 1005. lo'wa. — State v. Mathews (Iowa, 555 § 447 Conclusion", Indoesements and Signatuees. jury and endorsed by their foreman.^^ So it is said in a case in Maine: " In this State, as in many others (in some of which we believe it is required by statute), the public prosecuting officer who drawns the indictment habitually countersigns it in his official capacity. In fact the custom has been so invariable here, we recall no other instance of the omission of such official countersig- matter. But however uniform the custom has been, and how much soever we might regret a discontinuance of any such purely formal practice in criminal procedure, we know of no rule in the common law, we are sure there is no statute in this State, making such countersigning essential to the validity of an indictment. Otherwise the grand jury would be entirely under the control of the prosecuting officer."^* And a similar doctrine is asserted in a case in North Carolina,^^ and in a late case in Alabama,^" and it has been decided that the omission of the signature of the prosecut- ing attorney, even if essential to an indictment, is a formal defect 1906), 109 N. W. 616; State v. Wil- moth, 63 Iowa, 380, 19 N. W. 249; State V. Kuby, 61 Iowa, 86, 15 N. W. 848. Kemtmoky. — Sims v. Common- wealth, 12 Ky. Law Rep. 215, 13 S. W. 1079. Iionislama. — State v. Crensbaw, 45 La. Ann. 496, 12 So. 628. Maine. — State v. Eeed, 67 Me. 127. Maasaohtuetts. — Commonwealth v. Stone, 106 Mass. 469. MissoiirL — State v. Murphy, 47 Mo. 274. South Carolina. — State v. Cole- man, 8 8. C. 237. Texas. — Eppes v. State, 10 Tex. 474. Virginia. — Brown v. Common- wealth, 88 Va. 466, 10 S. E. 745. 17. Watkina v. State, 37 Ark. 370, citing Anderson v. State, 5 Ark. 444. 18. State V. Eeed, 67 Me. 127, 129. Per ViBGiN, .J. See also Keitler v. State, 10 Sm. & M. (Miss.) 192, where similar language is used. 19. " The signature of the prose- cuting officer, while usually attached to the indictment, forms no part of it and is in no manner essential to its validity. The indictment is not his work, but is the act of the grand jury declared in open court, and need not be signed by any one; and if it be, it is mere surplusage and cannot vitiate it." State v. Mace, 86 N. C. 668, 669. Per Ruftin, J. 20. " It was not essential to the validity of the indictment that it should have been prepared or signed by the solicitor. It ' receives its legal efficacy from the finding and return of the grand jury; and the legal evi- dence of its verity is the return " a true bill " apparent upon some part 556 Conclusion, Indobsements and Signatubes. § 448 to be taken advantage of by demurrer or motion to quash before the jury is sworn.^^ But an indictment has been held insufficient where not signed by tfae prosecuting attorney or any one else, and where it did not appear from the record in any place or manner that it was returned by the grand jury.^^ In some States the sig- nature of the public prosecutor is required by statute.^* And in Tennessee it is decided in an early case that the official signature of the district attorney general to an endorsement on an indict- ment directing what witnesses shall be summoned does not cure rhe want of a signature to the indictment itself.^* §' 448. Signature of public prosecutor — Who may sign. — Even though the signature of the prosecuting officer may be essen- tial to the validity of an indictment, it is held sufficient if placed thereon by his authority.^'' And the fact that one who is acting as public prosecutor pro tern affixes his own signature to an indict- ment as public prosecutor is not an objection to its validity.^* So an indictment which is signed by one as " special prosecuting at- torney " is not subject to a motion to quash or to a plea in abate- ment which does not deny that the special prosecuting attorney had been duly appointed, as a court takes cognizance of the genuine- of it bearing the signature of the See the statutes of the various foreman.' " Prince v. State, 140 Ala. states as to the necessity of such sig- 158, 163, 37 So. 171. Per Tyson, J., nature. citing Holly v. State, 75 Ala. 14; o., oj. i t . xi o tx • i ^ „x X no a/ ^.o 2*. State V. Loekett, 3 Heisk. Joyner v. State, 78 Ala. 448. (Tenn.) 274. 21. State V. Crenshaw, 45 La. Ann. 496, 12 So. 628. 25. Newman v. State, 101 Ga. 534, 22. Heacock v. State, 42 Ind. 393, 28 S. E. 1005; State v. Mathews wherein it is said: "Without these (Iowa, 1906), 109 N. W. 616. See requisites the indictment had no more People v. Etting, 99 Cal. 577, 34 Pac. force than a blank piece of paper. It 237. could not subject the party to trial and punishment under it, but ought 26. Turner v. State, 89 Tenn. 547, to have been quashed on motion." 15 S. W. 838; State v. Johnson, 12 Per Pettit, J. Tex. 231; Reynolds v. State, 11 Tex. 23. Taylor v. State, 113 Ind. 471, 120. See also State v. Moxley, 102 16 N. E. 83. Mo. 374, 14 S. 'V. 969, 15 S. W. 556. 557 § 449 Conclusion, Indoesements and Signatukes. iiess of their ofEcial signatures and designation.^'' And though it is provided by statute that an indictment shall be signed by the prosecuting attorney, yet it has been decided that if it be signed by the deputy prosecuting attorney it will be presumed on appeal, in the absence of a showing to the contrary, that a sufficient reason existed therefor, and that judgment will not be reversed.** So where, by statute, the attorney-general may be required by the governor to appear and prosecute criminal proceedings in any county, he becomes the prosecuting attorney of that county in such proceedings, and as such may sign indictments presented by the grand jury.^* And it is no objection to an indictment that a wrong person signed it as the prosecuting officer, where such signa- ture is not required by statute.*** §: 449. Signature of public prosecutor — What is sufficient. — If an indictment be signed by the prosecuting attorney by his surname in full and his christian name by its initials it is suffi- cient.** And an indictment has been held sufficient where the name of the prosecuting attorney, with the title of his office an- nexed, was printed at the bottom instead of being written, as is- usual in attaching the name of that office.*" Again, where the 27. Choen v. State, 85 Ind. 209. the prosecuting attorney.'" Per See also Territory v. Layne, 7 Mont. Mitchell, J. 225, 14 Pae. 705; Territory v. Hard- Compare State v. Amos, 101 Tenn^ ing, 6 Mont. 323, 12 Pac. 750; State 350, 47 S. W. 410. V. Johnson, 12 Tex. 231. 29. State v. Bowles, 70 Kan. 821, 28. Taylor v. State, 113 Ind. 471, 79 Pac. 726, followed in State v. 16 N. E. 83. The court said : " The Campbell, 70 Kan. 899, 900, 79 Pac. indictment having been verified by 1133. the signature of a deputy prosecut- 30. State v. Kovolosky, 92 Iowa,. ing attorney, an officer who is re- 498, 61 N. W. 223. See Caha v. quired to act under an official oath. United States, 152 U. S. 211, 221, 14 we may well presume that some suf- Sup. Ct. 513, 38 L. Ed. 415. ficlent reason appeared to the court 31. Vanderkarr v. State, 51 Ind. into which the indictment was re- 91. turned for the absence of the name of 32. Hamilton v. State, 103 Ind. 96,. 558 Conclusion, Indobsement and Signatuees. § 449 caption and body of the indictment designate the county in which it is found, and the prosecuting officer signs the indictment offi- cially, it is not necessary that he should add to such signature the name of the county of which he is attorney.^' And the fact that the prosecuting officer affixes a wrong designation of his office tf) his signature does not affect the sufficiency of an indictment.^* 2 N. E. 299, 53 Am. Rep. 491. See See also Commonwealth v. Beaman, 8 Miller v. State, 36 Tex. Cr. 47, 35 S. Gray (Mass.), 497. W. 391, holding an indictment sufifi- 34. Baldwin v. State, 12 Ind. 383; cient where the name was typewrit- State v. Myers, 85 Tenn. 203, 5 S. ten. W. 377. 33. People t. Ashnauer, 47 Cal. 98. 559 Pbecedents of Foems. FORMS Precedents of Foniis.i [1. In the following pages are given forms of indictments for Tarious offenses which have either received judicial approval or have been nsed in eases where their sufficiency has not been questioned. In a very few instances the formal commencement has been omitted, owing to the fact that it is not given in the report of the case from which the form is taken. In such a case, in order to prepare a complete indictment, reference may be had to the notes to section 177 herein, where several forms of commencement are given, which have been approved by the courts.] FORM I. Admissioii of Prisoner to Bail in Violation of Statmte. tiiTY AND County of New Yoke, 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 oath present; That Abraham Bogart, late of the first ward of the city of New York, in the county of New York, aforesaid, junior, on the twenty-eighth day of July, in the year of our Lord one thousand eight hundred and fifty-five, at the ward, city and county aforesaid, with force and arms, acted as and was, and yet acts and is, one of the police justices for the city of New York. That he, the said Abraham Bogart, Jr. as police justice as aforesaid, was prohibited by law from letting to bail any person charged with a criminal offense in any ease wherein he, the said Abraham Bogart, Jr. was not the committing Magistrate, unless notice of the application to bail such person should have been given to the district attorney of the city and county of New York, at least two days before such application, specifying the name, the officer, the time and place when and where such application would be made, and the name and residence of the proposed bail, and the original commitment, and proofs upon which it was founded, should have been presented to him, as fully appears, by the eighth section of an act passed May thirteenth, one thousand eight-hundred and forty-six entitled " An Act to amend an act entitled ' An act for the estab- lishment and regulation of the police of the city of New York,' " passed May the seventh, one thousand eight hundred and forty-four, and is the words 561 36 Peecedents of Foems. following: "No officer other than the committing Magistrate shall let to bail any person charged with a criminal oflFence, unless notice of the application to bail such person shall have been given to the district attorney of the city and county of New York, at least two days before such application, specifying the name of the officer, the time and place and where such application will be made, and the name and residence of the proposed bail, and the original commitment and proofs upon which it is founded shall have been presented to the officer to whom the application for bail is made. The person having the custody of such commitment and proofs shall, when required in writing, produce the same before the officer last mentioned." That while such law was in force and in effect, one William Nambe, otherwise called William Lambe, was indicted in the court of General Sessions of the Peace in and for the said city and county of New York, on the fourth day of April, one thousand eight himd'red and fifty-five, for the crime of grand larceny, in feloniously stealing, taking and carrying away the goods, chattels and pei - sonal property of one James E. Miller, and thereafter, on such indictment, was committed to the custody of the keeper of the city prison, to await his trial on such indictment by a magistrate of the city and county of New York, viz., James M. Smith, Jr., Esq., recorder of the city of New York, That whilst the said William Nambe, otherwise called William Lambe, stood committed, as aforesaid, by the said James M. Smith, Jr. Esq. recorder as aforesaid, the said Abraham Bogart, Jr. well knowing such law aforesaid, with force and arms, at the ward, city and county aforesaid, on the twenty-eighth day of July, in the year of our Lord one thousand eight hundred and forty-five, did willfully, unlawfully maliciously and corruptly, admit to bail said William Nambe, otherwise called William Lambe, as appears by the said recognizance, to answer then and there, by the said Abraham Bogart, Jr., police justice, taken in the words and figures following, to wit: CITY AND County of New Yobk, Be it remembered, that on the twenty-eight day of July, one thousand eight hundred and fifty-five, William Nambfe, alias Lambe, of number , Brooklyn Nassau Street, in the city of New York, and Joseph Porkousky, of number two hundred and ninety-eight Houston-street, in the said city personally came before me, the undersigned, one of the police Justices in the city of New York, and acknowledged themselves to owe to the people of the State of New York, that is to say the said William Nambe, alias Lambe, the sum of ten hundred dol- lars and the said Joseph Porkousky the sum of ten hundred dollars, separately of good and lawful money of the State of New York to be levied and made of their respective goods and chattels and tenements, to the use of said people, if default shall be made in the condition following viz. Whereas, the said William Nambe, alias Lambe, was indicted in the Court of General Sessions, for having committed the crime of grand larceny in the city and county aforesaid; and where as he has been brought before said justice to answer 5G2 Peecedents of Forms. said charge, and upon the examination of the whole matter, pursuant to statute, it appearing to said justice that said offence has been committed, and there is probable cause to believe said defendant to be guilty thereof, and the said offence being bailable by said justice, he did thereupon order the said defendant do find sufficient bail in the sum of ten hundred dollars to answer to any indictment to be preferred against him for said offence: Now, there- for, the condition of this recognizance is such that if the above named William Nambe, alias Lambe, shall personally appear at the next court of General session, to be held in said city and county on the first Monday of August next, to answer any indictment that may be preferred against him for said offense and abide the order of the said court and not depart therefrom without leave, then this recognizance to be void otherwise to remain in full force. WILLIAM LAMBE WILLIAM PORKOUSKY. Taken and acknowledged before me this day and year aforesaid. J. BOGAE.T, Jr. Police Justice. City and County of New Yobk, ss. : Joseph Porkousky, the within named bail, being duly sworn, says that he is a householder in said city, and is worth ten hundred dollars over and above the amount of all his debts and liabilities, and that his property consists of three lots of land in Morrisaina, valued at fifteen hundred dollars, and stock in trade insured for two thousand dollars in the City Insurance Office in this City. JOSEPH PORKOUSKY. Sworn before me this 28th day of July, 1855. A. BOGART Jr. Police Justice. And then and there after such recognizance being taken by him did discharge from custody the said William Nambe, otherwise called William Lambe, h«, the said Abraham Bogart, Jr. then and there, well knowing that the said William Nambe, otherwise called William Lambe, then and there stood committed, as aforesaid by the said James M. Smith, Jr. Esq. recorder, as aforesaid, and that he, the said Abraham Bogart, Jr. was not the committing Magistrate and then and there well knowing that no notice of the application to bail said William Nambe, otherwise called William Lambe, had been given to the district Attorney of the city and county of New York, and that the proofs upon which said commitment was founded had not been presented to him, the said Abraham Bogart, Jr. police justice, as aforesaid, upon said application to bail. And the jurors aforesaid do say that notice of the application to bail said William Nambe, otherwise called William Lambe. had not been given to the district attorney of the city and county of New York, 563 Pbecedents of Foems. and that the proofs upon which the commitment was founded had not been presented to the said Abraham Bogart, Jr. police justice as aforesaid, upon said application to bail. Wherefore the jurors aforesaid upon their oaths aforesaid, do say that the said Abraham Bogart, Jr: police justice, as aforesaid did willfully, ma- liciously, unlawfully and corruptly, an act prohibited by law, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York, and their dignity A. OAKEY HALL, District Attomey.2 [2. People V. Bogart, 3 Park Cr. R. (N. Y.) 144. The above form was used in this case for a. misdemeanor in wilfully admitting a prisoner to bail in the city of New York without notice to the district attorney in a case ia which the defendant was not the committing magistrate.] FORM 2, Arson. CouBT OP Getneeai, Sessions or the Peace, In and for the County of New York. The People of the State of New York against Frederick Wagner. The grand jury of the county of New York by this indictment accuaa Frederick Wagner of the crime of arson in the first degree, committed as follows: The said Frederick Wagner, late of the twelfth ward of the Borough of Manhattan, of the city of New York, in the county of New York aforesaid, on the thirtieth day of January in the year of our Lord one thousand nine hundred and one, at the ward, borough and county aforesaid, in the night time of said day, a certain dwelling house of one Stephen Kiel there situate, there being then and there within the said dwelling house some human being, feloniously, wilfully and maliciously did set on fire and bum, against the form of the statute in such case made and provided and against the peace of the people of the State of New York and their dignity. Second Count. And the grand jury aforesaid, by this indictment, further accuse the said Frederick Wagner of the crime of arson in the first degree, committed as follows: The said Frederick Wagner, late of the ward, borough and county aforesaid, to wit, on the day and in the year aforesaid, at the ward, borough and county aforesaid, in the night time of said day, a certain dwelling house, of a cer- tain person, whose name is to the grand jury aforesaid unknown, there situate, there being then and there within the said dwelling house some human being, feloniously, wilfully and maliciously did set on fire and bum, 564 Peecedents of Foems. against the form of the statute in such case made and provided and against the peace of the people of the State of New York and their dignity. EUGENE PHILBIN, District Attorney.* [3. In People v. Wagner, 180 N. Y. 58, 72 N. E. 577, a judgment of convic- tion on the above indictment was affirmed.] FORM 3. Arson. Cnr AND CotJNTy or 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 oath, present: That Francis Didieu, late of the Fifth Ward of the City of New York, in the County of New York, aforesaid, on the Twenty-first day of March, in the year of our Lord, one thousand eight hundred and fifty-eight, at the Ward, City and County aforesaid, with force and arms, in the night time of the said day, a certain dwelling-house, of one Amelia Asselin, then and there situate (there being then and there within the said dwelling-house, some human being), feloniously, willfully, and maliciously, did set fire to, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York, and their dignity. PETER D. SWEENY, District Attorney .■< [4. Didieu v. People, 4 Park. Cr. R. (N. Y.) 593. The above form was used in this case in indicting a person for arson in the first degree.] FORM 4. Assault and Battexy. The State of Alabama, Circuit Court for Tuskaloosa county. Fall Term, 1836, The grand jurors for the State of Alabama, elected, impaneled, sworn, and charged to inquire for the body of Tuskaloosa county, upon their oathj present, that Zachariah Middleton, late of said county, in the county afore- said, on the 26th day of July in the year of our Lord, 1836, with force and arms, at , in the county aforesaid, in and upon one Nimrod Freeman, in the peace of God, and the said State, then and there being did make an assault, and him the said Nimrod Freeman, then and there did beat, wound and ill treat, and other wrongs to the said Nimrod Freeman, then and there did, to the great damage of him, the said Nimrod Freeman; and 565 Peecedents of Foems. against the peace and dignity of the State of Alabama. A. B. Meek, Attorney General of the State of Alabama. John Thomas, foreman of the grand jury, endorsed a true bill.^ [5. State V. Middleton, 5 Port. (Ala.) 485.] FORM 5. Assanlt and Battery. Washinoton County, ss. ; The jurors of the people of the state of New York of the body of the county of Washington, to wit, Emezer MeMurray, &e., good and lawful men of the body aforesaid, then and there sworn and charged in inquire for the people of the said body, upon their oath present: That Joel W. Holcomb, James Woodard, Henry Loomis and Charles Pardo, late of Whitehall, in said county of Wasington, on the twenty-ninth day of May, in the year of our Lord one thousand eight hundred and fifty-five, at the said town of Whitehall and county of Washington, in and upon one Henry H. Knight, then being one of the constables of said county in the peace of God and of the said people, then and there being, and in the due execution of his said oflSce, then and there also being, did make an assault, and him the said Henry H. Knight, then and there did beat, wound and ill treat, and the due execution of his said office, did then and there, with force and arms, resist, hinder and prevent, contrary to the statute in that case made and provided, and against the peace of the people of the State of New York, and their dignity. And the jurors aforesaid, upon their oath aforesaid, do further present: That Florus D. Meacham, Esquire, was a justice of the peace, in and for the county of Washington at the town of Whitehall, on the said twenty- ninth day of May, in the year of our Lord, one thousand eight hundred and fifty-five, that on the said twenty-ninth day of May, in the year of our Lord, one thousand eight hundred and fifty-five, at said town and county, the said Meacham, as a justice of the peace aforesaid, duly issued a certain process called a search warrant, subscribed with his name directed to any constable of said county and commanding them in the name of the people of the state of New York, to search a certain barn in said town of Whitehall which was in said warrant particularly described, in the day time for certain personal property, in said warrant partitrularly set forth and described, belonging to one Alwyn Martin and one Moses T. Clough, which property had been stolen and feloniously taken, and was then concealed in said barn, and said stolen property to bring before said justice of the peace, all of which will by said warrant, more fully and at large appear, that one Henry H. Knight, then and there, was a constable in and for said county, at Whitehall in said county, that said process was duly delivered to him for execution at the time 566 PeECEBENTS OS' FOEMS. and place aforesaid, that said constable then and there proceeded to the due execution thereof, and was at and about the searching said bam, in the day time for said stolen property, to take the same before said justice, as by said warrant he was commanded; and on the day and at the place last afore- said, Joel W. Holcomb, James Woodard, Henry Loomis and Charles Pardo, in and upon the said Henry H. Knight, then and there being in the due execution of said process, did make an assault, and the execution of said process did then and there, with force and arms, maliciously and wilfully resist, and him the said Henry H. Knight, did then and there from the exe- cution of said process, hinder and prevent, and the said stolen property did then and there, with force and arms violently and unlawfully, from the custody and possession of him the said Henry H. Knight, receive and take away, contrary to the statute in that case made and provided and against the peace of the people of the State of New York and their dignity. And the jurors aforesaid, upon their oath aforesaid, do further present: That Joel W. Holcomb, James Woodard, Henry Loomis and Charles Pardo, late of Whitehall, in said county, on the twenty-ninth day of May, in the year of our Lord, one thousand eight hundred and fifty-five, at the said town of Whitehall and county of Washngton, with force and arms, did unlawfully, riotously and routously assemble together to disturb the peace, and being so assembled together, in and upon one Henry H. Knight, then and there being one of the constables of the said county of Washington, in the due and lawful discharge of the duties of his oflBce as constable of said county being in the service of a lawful process, to any constable of said coimty directed and by him then and there had and held for execution as such constable, commanding him to search certain premises in said town and county, for certain stolen property, and the same to bring before the Magistrate issuing said process; which place and property was, in said process, particularly described and set forth, said process having been issued by one F. D. Mcacham, a justice of the peace in and for said county, at said town of Whitehall, and having due authority and power to issue the same, did make an assault, and riotously and routously him, the said Henry H. Knight, did resist, hinder and obstruct in the discharge of the duties of his office of constable, and the execution of said process, and the place which by said process said Knight was commanding to search, did with force and arms, unlawfully hinder and prevent from searching, and the said stolen property did prevent and hinder from being taken before the Magistrate issuing said process, as by the command thereof said constable was directed. And the jurors aforesaid, upon their oath aforesaid, do further present : That Joel W. Holcomb, James Woodard, Henry Loomis and Charles Pardo, late of Whitehall, in said coimty of Washington, on the twenty-ninth day of May, in the year of our Lord, one thousand eight hundred and fifty-five, with force and arms, at said town of Whitehall and county of Washington, the execu- tion of a certain process called a search warrant, in due form of law issued 567 Peecedents of Foems. by an <^cer having full authority and jurisdiction to issue the same and then and there had and held by one Henry H. Knight, then and there being a constable in and for said county, for execution, did resist, and the execution thereof did then and there prevent, hinder and obstruct, contrary to the statute in that case made and provided, and against the peace of the people of the State of New York, and their dignity. JOSEPH POTTER, District Attorney.* [6. The People v. Holcomb, 3 Park. Cr. R. (N. Y.) 656. Form for an assault and battery committed on an o£Scer while engaged in the execution of his office, with a count for riotously resisting the execution of process and a count for resisting the execution of a search warrant under N. Y. Act of 1845, ch. 69, § 17.] FORM 6. Assanlt and Battery. City and Couwtt op Netw Yoek, ss. : The jurors of the people of the state of New York, in and for the city and county of New York, upon their oath, present, that John Moore, late of the first ward of the city of New York, in the county of New York aforesaid, laborer; John Miller, late of the same place, laborer; .John Lowry, late of the same place, laborer, and Henry Bush, late of the same place, laborer, on the 12th day of July, in the year of our Lord one thousand eight hundred and twenty-four, at the eighth ward of the city of New York, in the county of New York aforesaid, in and upon the body of James Murney, in the peace of God, and of the said people, then and there being, with force and arms, did make an assault, and him the said James did then and there beat, wound, and ill treat, and other wrongs and injuries to the said James, then and there did, to the great damage of the said James, to the evil example of all others in like case offending, and against the peace of the people of the State of New York, and their dignity. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said John, John, John, and Henry afterwards, to wit, on the same day and year aforesaid, in and upon the body of the said James, in the peace of God, and of the said people, then and there being, with force and arms, did make another assault, and him the said James did then and there beat, wound and ill treat, and other wrongs and injuries to the said James then and there did to the great damage of the said James, to the evil example of all others, in like case oflFending, and against the peace of the people of the state of New York, and their dignity. MAXWEJX, District Attorney.'? [7. People v. Moore, 3 Wheeler's Cr. Case (N. Y.) 82. 568 Peecedents of Foems. FORM 7. Assault and Battery. State op Vebuont, Addison County, ss.: Be it remembered, that, at a term of the County Court, begun and holden at Middlebury, within and for said county of Addison, on the second Tuesday of June, A. D. 1843: The grand jurors within and for the body of the county of Addison, now here in court duly impaneled and sworn, upon their oath present, that William P. Hooker, of Mid'dlebury aforesaid, at Middle- bury aforesaid, on the seventh day of November, in the year of our Lord one thousand eight hundred and forty- two, with force and arms, in and upon one Adnah Smith, in the peace of God and of this State then and there being, and then being sheriff of said county of Addison, and in the due execution of his said office, then and there did make an assault, and him, the said Adnah Smith, so being in the due execution of his said office aforesaid, then and there did hinder and impede, and then and there did beat, wound and ill treat, and other wrongs to the said Adnah Smith then and there did, to the great damage of the said Adnah Smith and against the peace and the dignity of the State. And the grand jurors aforesaid, on their oaths as aforesaid, do further present, that the said William P. Hooker, at Middlebury aforesaid, on the seventh day of November, in the year of our Lord one thousand eight hun- dred and forty-two, with force and arms, wilfully and knowingly did impede and hinder a civil officer, under the authority of this State, in the execution of h'is office, to wit, Adnah Smith, sheriff of the county of Addison aforesaid, in the peace of God and this State then and there being, in then and there serving and attempting to serve and execute a legal writ of execution, to wit, a pluriea writ of execution, regularly issued on a judgment rendered by the honorable County Court in and for said county of Addison, at the term of said court begun and holden at Middlebury, in and for said county of Addison, on the second Tuesday of June, A. D. 1842, said execution dated the 27th day of September, A. D. 1842, and signed by Samuel Swift, clerk of said court, and directed to any sheriff or constable in the State, and made returnable in sixty days from the date thereof, whereby, after reciting that Harry Goodrich of said Middlebury, by the consideration of the County Court begim and holden at Middlebury, in and for said county of Addson, on the second Tueeday of June, A. D. 1842, recovered judgment against the said William P. Hooker and one Charles Hooker in an action of trespass (the cause of which action it was adjudged by said court arose from the wilful and malicious act of the defendants), in the sum of three hundred and forty- one dollars and fifty-six cents, damages, and for the sum of thirty-two dol- lars and seventy cents, costs of suit, whereof execution remains to be done for the sum of $307.70, said officer, as often before com- manded, is therefore, by virtue of said writ of execution by the 5G9 Peecedents of Foems. authority of the State of Vermont, commanded to cause to be levied, of the goods, chattels, or estate of the said William P. Hooker and Charles Hooker, said sum of $307.70, with 25 cents more for said writ of execution and 50 cents for two others, and, for want of the goods and chattels of said William P. and Charles, shown or to be found by said' officer within his pre- cinct, commanding him to take the bodies of said William P. Hooker and Charles Hooker, and them commit to the keeper of the common jail in Mid- dlebury, in said county, within said prison, which said writ of execution, so duly issued as aforesaid, in full life, and in no way satisfied, paid, or dis- charged, was, on the 6th day of October, A. D. 1842, delivered to said Adnah Smith, sheriff as aforesaid, to serve and return, and afterwards, to wit, on the seventh day of November, A. D. 1842, at Middlebury aforesaid, the said Adnah Smith, then being sheriff as aforesaid, for want of the goodls, chattels, or lands of the said William P. and Charles, shown him or to be found within his precinct, whereon to levy said writ of execution, attempted to serve and execute said writ of execution, as he was therein commanded, by arrest- ing the body of said William P. Hooker; and the said William P. Hooker then and there unlawfully and wickedly intending to impede and hinder the said Adnah Smith in the execution of his said office, and well knowing that said Adnah Smith was sheriff of the county of Addison as aforesaid, and that said Adnah Smith then and there had said writ of execution, so duly issued and in full force as aforesaid, to serve and execute, and was then and there attempting to serve and execute said writ of execution, did, with force and arms, then and there impede and hinder the said Adnah Smith, sheriff as aforesaid, in attempting to serve and execute said writ of execution, in the execution of his said office, by beating and bruising the said Adnah Smith with a large and heavy bludgeon on his head, shoulders and arms, to the great damage of the said Adnah Smith, to the great hindrance and obstruc- tion of justice, and contrary to the form, force and effect of the statute in such case made and provided, and against the peace and dignity of the State.s [8. State V. Hooker, 17 Vt. 659. The assault in this case was committed upon a sheriff.] FORM 8. Assault with Inten't to Kill, The grand jurors of the State of Indiana, in and for the county of Rush, good and lawful men, duly and legally impanelled, sworn and charged in the Rush Circuit Court, at the March term, 1877, to inquire in and for the body of said county, in the name and by the authority of the State of Indiana, upon their oath, present and charge, that on the 18th day of January, 1877, and in the county of Rush and State of Indiana, William A. Jones, in and upon one Orlando B. Scobey, did then and there unlawfully, feloniously, pur- 570 Peecedents op FoEiis. posely and with premeditated malice, make an assault, and then and there, at and against, and in contact with, the said Orlando B. Scobey did felon- iously, purposely and with premeditated malice, shoot a certain pistol, then and there loaded with gxmpowder and leaden balls, which he, the said William A. Jones then and there in his hand's had and held, with the intent then and there him, the said Orlando B. Scobey, feloniously, purposely and with premeditated malice, to kill and murder.9 [9. Jones v. State, 60 Ind. 240, holding that the above indictment was not open to the objection of duplicity.] FORM 9. Assault with Intent to KlIL SARATOGA County, ss.: The Jurors of the People of the State of New York, in and for the body of the coimty aforesaid, to wit: Lawrence W. Bristol, &e., &c., good and lawful men of the county aforesaid then and there sworn and charged to inquire for the said People for the body of the county aforesaid, upon their oaths present: That Daniel OTieary, late of the village of Waterford, in the county of Saratoga aforesaid, on the twenty-second day of September, in the year of our Lord one thousand eight hundred and fifty-seven, with force and arms, at the village of Waterford, in the county of Saratoga aforesaid, in and upon one Margaret Collins then and there being, feloniously did make an assault, and her, the said Margaret Collins, with a certain deadly weapon, commonly called a cleaver, which the said Daniel O'Leary in his right hand then and there had and held feloniously, did beat, strike, and cut, and wound, with intent her, the said Margaret Collins, then and there feloniously and wilfully to kill, and other wrongs to the said Margaret Collins, then and there did to the great damage of the said Margaret Collins, against the stat- ute in such ease made and provided, and against the peace of the people of the State of New York and their dignity. And the jurors aforesaid, in their oath aforesaid, do further present, that the said Daniel O'Leary, late of the town and village of Waterford, in the county of Saratoga, on the twenty-second day of September, in the year of our Lord one thousand eight hundred and fifty-seven, with force and arms at the village and county aforesaid, in and upon Margaret Collins, then and there being, feloniously did make an assault and her, the said Margaret Collins, with a certain deadly weapon commonly called a cleaver, which he, the said Daniel O'l^eary, in both his right hand then and there had and held felon- iously did beat, in both his hands then and there had and held, felon- iously did beat, strike, and cut, and wound, with intent her, the said Margaret Collins, then and there feloniously and wilfully to kill, and other wrongs to 571 Peecedents of Foems. the said Margaret Collins then and there did, to the great damage of the said Margaret Collins, and against the statute in such case made and pro- vided, and against the peace of the People of the State of New York and their dignity. And the jurors aforesaid, on their oath aforesaid, do further present, that the said Daniel O'Leary, on the said twenty-second day of September, in the year last aforesaid, with force and arms, at the village and county aforesaid, in and upon the said Margaret Collins, then and there being, feloniously did make another assault, and her, the -said Margaret Collins, with a certain cleaver, which he, the said Daniel O'Leary, in both of his hands then and there had and held the said cleaver, being a deadly weapon, feloniously did beat, strike, cut, and woiuid, with intent her, the said Margaret Collins, then and there feloniously and wilfully to maim, against the form the statute in such case made and provided, and against the peace of the People of the State of New York, and their dignity. JOHN O. MOTT, District Attorney .10 [10. O'Leary v. The People, 4 Park. Crim. Eep. (N. Y.) 187. Form for an assault and battery with intent to kill, with a count charging an intent to maim.] FORM 10. Assault xpith Intent to Kill. State OF Illinois, Wayne County, ss. : The grand jurors chosen, selected and sworn, in and for the county of Wayne, in the name, and by the authority of the people of the State of Illinois, upon their oaths present that Absalom Nixon, late of the county aforesaid, laborer, on the twenty-third day of October, in the year of our Lord one thousand eight hundred and thirty-eight, with force and arms, at and in the county aforesaid, in and upon one Adam, a man of color, then and there being a, deformed person, and by reason of his being such deformed person being unable to walk or otherwise move himself from place to place and also then and there being deficient in voice, so as to be unable to call aloud, and in the peace of God, and of the people of the State of Illinois, then and there also being, unlawfully did make an assault, and then and there forced and threw the said Adam from a certain wagon, in which he, the said Adam, then and there was, to and upon the ground, the said ground then and there being frozen and very cold, and then and there did force and compel the said Adam (so being such deformed person as aforesaid and also by reason of his being such deformed person, being unable to move himself from place to place as aforesaid, and also, being deficient in voice, so as to be unable to call aloud as aforesaid ) , then and there to lie upon the ground so being 572 Pbecedents of Foems. frozen and very cold as aforesaid, and then and there did abandon and' leave him, the said Adam, lying on the ground as aforesaid, to the great pain and torture of the said Adam, and to the great damage and impoverishment of his health and strength of body, with intent him, the said Adam, by the means aforesaid, then and there feloniously, wilfully and of his malice afore- thought, to kill and murder and other wrongs to him, the said Adam, then and there did to the great damage of him, the said Adam, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Illinois. G. B. SHELLEDY, State's Attorney .11 111. Nixon V. People, 3 111. 267. The above form was used in indicting one for an assault upon a deformed person who was unable to walk or move himself.] FORM II. Attempting Suicide. Centkal Cbiminal Court, To Wit. The jurors for our Lady the Queen upon their oath present, that Marian, the wife of Henry Thomas Johnson, late of the parish of St. Mary-le-bow, in London, and within the jurisdiction of the said court, not having the fear of God before her eyes, and being moved and seduced by the instigation of the devil, heretofore, to wit, on the 18th day of July, A. D. 1851, with force and arms, at the parish aforesaid, in the county aforesaid, unlawfully and wil- fully did cast and throw herself from and off a certain steamboat called The Bee, then and there being propelled along the waters of a certain river there, called the Thames, into the waters of the said river, with the wicked intent and purpose of then and there feloniously, wilfully and of her malice aforethought, choking, suffocating, drowning, and murdering herself in and by the waters aforesaid, and so the jurors aforesaid, upon their oath aforesaid, do say that the said M. J., on the day and year aforesaid, at the parish afore- said, in London aforesaid, and within the jurisdiction of the said Central Criminal Court, unlawfully, wilfully and wickedly did attempt and en- deavour feloniously, wilfully and of her malice aforethought, to kill and murder herself in manner aforesaid, to the great displeasure of Almighty God, in contempt of our said Lady the Queen and her laws, to the evil and pernicious example of all other persons in the like case offending, and against the peace of our said Lady the Queen, her crown and dignity.iz [12. V Cox. Cr. Cas. Appendix XCIL] 573 Pkecedents of Foems. FORM 12. BaTvdy House — Keeping of. NoBTH Cajwuka, Rowan County, ss. — Si/Tebioe Coubt of Law, Fall Tebm, 1844. The jurors for the State upon their oath present, that Augusta Ann Evans, late of the said county, spinster, on the 10th day of August, 1843, and thence continually to the time of the finding of this bill, and before, in the said county of Rowan, with force and arms unlawfully did keep and maintaia a certain ill-governed and disorderly house, and in the said house then, and on said other days there, did procure and cause and permit persons of lewd con- versation and demeanor to frequent and come together, and then and on the said other days, there to remain, drinking, whoring, cursing, swearing and mis- behaving themselves, to the great damage and common nuisance of all the good citizens of the said State there inhabiting and living and passing, to the evil example of all others in the like case oiTending, and against the peace and dignity of the State.i^ [13. The State v. Augusta A. Evans, 5 Ired. L. (N. C.) 603. In this case the question of the sufficiency of the indictment was raised on a motion to ar- rest, but the court reversed the judgment on the ground of insufficiency of evidence and declared that therefore the question of the sufficiency of the indictment on such motion did not present itseU to them.] FORM 13. Bigamy. CiTT awd Countt of New Yobk, 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 oath, present: That John J. Hayes, late of the first ward of the city of New York, in the county of New York, aforesaid, on the third day of February, in the year of our Lord one thousand eight hundred and forty-five, did marry one Sarah E. Blair, and her, the said Sarah E. Blair, did then and there have for his wife, and that the said John J. Hayes afterwards, to wit, on the thirteenth day of September, in the year of our Lord one thousand eight hiindred and sixty, at the ward, city and county aforesaid, whUe he was married to the said Sarah, with force and arms did feloniously marry and take as his wife one Jane White, and to the said Jane White was then and there married, the said Sarah E. Blair being then and there living and in full life, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity. NELSON J. WATERBURY, District Attorney.!* [14. Hayes v. The People, 5 Park. Cr. R. (N. Y.) 325.] 574 Peecedents oe Foems. FORM 14. Bribery. State of ICaihe, Knox, sb. : At the Supreme Judicial Court, begun and holden at Rockland, within and for the county of Knox, on the second Tuesday of March, in the year of our Lord one thousand eight hundred and eight-ohe. The jurors for said State, upon their oath present, that a meeting of the inhabitants qualified to vote, of ward one in Rockland, in the county of Knox, for the election of one alderman, and three common eoimcilmen, on the eighth day of March, in the year of our Lord one thousand eight hundred and eighty- one at said Rockland, was then and there duly holden. And the jurors afore- said upon their oath aforesaid do further present that one Augustus Mont- gomery was then and there a, qualified voter in this State, to wit, in ward one, in said Rockland, in the county aforesaid. And the jurors aforesaid, upon their oath aforesaid, do further present that Charles A. Jackson, of Rockland, in said county of Knox, did then and there at the said election, unlawfully and wilfully attempt to iniluence the said Augustus Montgomery, so being a qualified voter in this State as aforesaid to give his, the said Augustus Montgomei-y's ballot, in said election then and there duly holden, by then and there offering and paying him the said Augus- tus Montgomery, the sum of two dollars in lawful money, against the peace of said State. A true bill. ROBERT LONG, Foreman, pro tem.is [15. State T. Jackson, 73 Me. 91. Form used in this case for bribing a qualified voter.] FORM 15. Bribery. (State or Maine, Cumberland, ss. : ^t the Court, begun and holden at , within and for the county of Cumberland, on the day of , in the year of our Lord one thousand eight hundred and .)16 [16. Omitted in form given in report of case.] The grand jurors for said State upon their oath present that Dana H. Miles of Portland, in the county of Cumberland, on the fourth day of June, in the year of our Lord one thousand eight hundred and ninety-four, at said Portland, was a police ofiicer of said Portland, duly and legally appointetl and authorised to discharge the duties of that oflSce, that as such police officer, 575 Peecedents of Foems. it was then and there the duty of said Dana H. Miles to arrest one John Murphy, the younger of that name, who was then and there, on said fourth day of June, unlawfully concerned in a certain lottery, scheme and device of chance not authorized by law in said State, by then and there having ia his possession, with intent to sell and dispose of the same, certain certificates, tickets, shares and interests in said lottery, scheme and device of chance, as he, the said Dana H. Miles, then and there well knew; nevertheless, the said Dana H. Miles, not regarding the duties of his office as aforesaid, but per- verting the trust reposed in him, and contriving and intending the citizens of this State for the private gain of him, the said Dana H. Miles, to oppress and impoverish and the due execution of justice as much as in him lay to hinder, obstruct and destroy, on said fourth day of June, in said Portland, under color of his said office as a police officer as aforesaid, a certain sum of money, to wit, the sum of five dollars, for not arresting said John Murphy, the younger of that name, and for not interfering with said John Murphy, the younger of that name, in the prosecution of said business of being unlaw- fully concerned in a certain lottery, scheme and device of chance not author- ized by law in said State as aforesaid, the said Dana H. Miles from the said John Murphy, the younger of that name, unlawfully, unjustly and extorsively did accept, receive and have, against the duties of his 'said office, to the great hindrance of justice and against the peace of said State. (The second count alleged the same offense to have been committed on the eleventh day of the same month.) (Third Count) that said Dana H. Miles afterwards, to wit, ob the tenth day of June, in the year of our Ijord one thousand eight hundred and ninety-four, at said Portland, was an officer having power to serve crim- inal process within said Portland, to wit, a police officer of said Portland, duly and legally appointed and authorized to discharge the duties of that office; that by virtue of his authority as such police officer, he then and there seized in a certain tenement situated on the northerly side of Fore street, so called, in said Portland, certain intoxicating liquors, a more particular de- scription of which said intoxicating liquors is to the grand jurors xmknown, which said intoxicating liquors were then and there kept and deposited im said tenement and intended for illegal sale in said State, by one Lewis Levi, as he, the said Dana H. Miles, then and there well knew ; that it was then and there the duty of said Dana H. Miles as such officer, to institute pro- ceedings against said Lewis Levi for having violated as aforesaid, the laws relative to the illegal sale and the illegal keeping of intoxicating liquors; nevertheless, the said Dana H. Miles, not regarding the duties of his offiee as aforesaid, but perverting the trust reposed in him and contriving and intending the citizens of this State for the private gain of him, the said Dana H. Miles, to oppress and impoverish and the due execution of justice aa much as in him lay to hinder, obstruct and destroy, on said tenth day of June, at said Portland, under color of his said offiee as a police officer as aforesaid, a 576 Peecedents of Fokms. certain svan. of money, to wit, the sum of ten dollars, for not instituting pro- ceedings against him, the said Lewis Levi, for having violated the laws against the illegal sale and the illegal keeping of intoxicating liquors as afore- said, he, the said Dana H. Miles, from the said Lewis Levi did then and there unlawfully, unjustly and extorsively accept, receive and have, against the duties of his said office, to the great hindrance of justice and against the peace of said State. (Fourth Count) .... that said Dana H. Miles afterwards, to wit, on the fourteenth day of July, in the year of our Lord one thousand! eight hun- dred and ninety-four, at said Portland, was an officer having power to serve criminal process within said Portland, to wit, a police officer of said Port- land, duly and legally appointed and authorized to discharge the duties of that office; that he, the said Dana H. Miles, did then and there on said four- teenth day of July, find in a certain tenement situated on the Northerly side of Federal street, so called', in said Portland, certain intoxicating liquors, a. more particular description of which said intoxicating liquors is to the grand jurors unknown, which said intoxicating liquors were then and there kept and deposited in said tenement and intended for illegal sale in said State; that it was then and there the duty of said Dana H. Miles as such police officer to endeavor to ascertain the owner and keeper of said intoxicating liquors so then and there kept and deposited as aforesaid, and to further endeavor to ascertain the person or persons intending to unlawfully sell such intoxicating liquors so then and there kept and deposited as aforesaid, and it was then and there the duty of said Dana H. Miles as such police officer to institute proceedings against the owner and keeper of said intoxicating liquors so then and there kept and deposited as aforesaid, and it was then and' there the duty of said Dana H. Miles as such police officer to institute proceedings against the person or persons intending to unlawfully sell such intoxicating liquors so then and there kept and deposited as aforesaid; never- theless, the said Dana H. Miles, not regarding the duties of his office as aforesaid, but perverting the trust reposed in him and contriving and intend- ing the citizens of the State for the private gain of him, the said Dana H. Miles, to oppress and impoverish and the due execution of justice as much as in him lay to hinder, obstruct and destroy, on said fourteenth day of July, at said Portland, under color of his said office as a police officer as aforesaid, a certain sum of money, to wit, the sum of twenty-five dollars, for not en- deavoring to ascertain the owner and keeper of said intoxicating liquors so then and there kept and deposited as aforesaid, and for not endeavoring to ascertain the person or persons intending to unlawfully sell said intoxicating liquors so then and there kept and deposited as aforesaid, and for not insti- tuting proceedings against the owner and keeper of said intoxicating liquors so then and there kept and deposited as aforesaid, and for not then and there instituting proceedings against the person or persons intending to unlawfully sell such intoxicating liquors so then and there kept and deposited as afore- 577 37 Peecedents of Foems. said, thie said Dana H. Miles from one William H. Lord' did unlawfully,, unjustly and extorsively accept, receive and have, against the duties of his said olSce, to the great hindrance of justice and against the peace of said State. (Fifth Count) .... that the said Dana H. Miles afterwards, to wit, on the twenty-seventh day of September, in the year of our Lord one thousand eight hundred! and ninety-four, waa an officer having power to serve criminal process within said Portland, to wit, a police officer of said Portland duly and legally appointed and authorized to discharge the duties of that office; that by virtue of his authority as such police officer, he then and there seized in a, certain tenement situated on the easterly side of Monument square, so called, in said Portland, certain intoxicating liquors, a. more particular de- scription of which said intoxicating liquors is to the grand jurors unknown, which said intoxicating liquors were then and there kept and deposited and intended for unlawful sale within said State by one Henry A. Harding, as he, the said Dana H. Miles, then and there well knew; that it was then and there the duty of said Dana H. Miles, as such officer, to institute pro- ceedings against the said Henry A. Harding for having violated as aforesaid the laws relative to the illegal sale and the illegal keeping of intoxicating liquors; nevertheless, the said Dana H. Miles, not regarding the duties of his office as aforesaid, but perverting the trust reposed in him and contriving and intending the citizens of this State for the private gain of him, the said Dana H. Miles, to oppress and impoverish and the due execution of justice as much as in him lay to hinder, obstruct and destroy, on said twenty-seventh day of September, at said Portland, under color of his said office as a police officer as aforesaid, a certain sum of money, to wit, the sum of ten dollars, as a consideration for using his influence and endeavoring in divers other ways to have such proceedings to be so instituted against said Henry Hard- ing, dismissed, he, the said Dana H. Miles, from said Henry A. Harding did unlawfully, unjustly and extorsively accept, receive and have, against the duties of his said office, to the great hindrance of justice and against the peace of said State.i' [17. State V. Miles, 89 Me. 142, 143. Form used for indicting police official for accepting bribe.] FORM 1 6. Bribery. The grand jury of the city and county of New York, by this indictment accuse Jacob Sharp, James A. Richmond, James W. Foshay, Thomas B. Kerr, John Keenan, Robert E. De Lacey, and William H. Maloney of the crime of 578 Peecedents of Foems. bribery, committed as follows: Heretofore, to wit; on the thirtieth day of August, in year of our Ijord one thousand eight hundred and eighty-four, at the city of New York, in the county of New York aforesaid, a certain petition and application of the Broadway Surface Railroad Company, a cor- poration dWy organized and incorporated under and by virtue of the laws of the State of New York before then duly made and presented to the common council of the city of New York, praying and making application to the said common council for its consent and permission to construct, maintain, operate and use a street surface railroad for public use in the conveyance of persons and property in cars upon and along the surface of certain streets, avenues and highways in the said city, together with the necessary connec- tions, switches, turnouts, turntables, sidings and suitable stand's for the convenient working of the said road, was duly pending before and under the consideration of the said common council. And the said petition and appli- cation having been so as aforesaid made and presented to the said common council and being so pending and under its consideration as aforesaid, th& said Jacob Sharp, James A. Richmond, James W. Foshay, Thomas B. Kerr, John Keenan, Robert E. De Lacey, and William H. Moloney, all late of tHe city and county of New York aforesaid, well knowing the premises after- wards, to wit, on the said thirtieth day of August, in the year aforesaid and whilst the said petition and application was yet pending before and under the consideration of the said common council, at the city and county afore- said, with force and arms, unlawfully, wickedly and corruptly did felon- iously give and offer and cause to be given and offered to one Ludolph A. Fullgraff, who was then and there a public officer and a person executing th» functions of a public office, to wit, an alderman and member of the board of aldermen of the city of New York, and as such being then and there a. member of the common council aforesaid, the sum of twenty thousand dollars in money and a promise and agreement therefore with intent in so doing to influence him, the said Ludolph A. Fullgraff, in respect to his acts, vote and proceeding in the exercise of his powers and functions as such member of the common council aforesaid upon and concerning the said' petition and application of the said Broadway Surface Railroad Company so pending before and under the consideration of the said common council as aforesaid so that the acts, vote and proceeding of the said Ludolph A. Fullgraff as such num- ber of the common council aforesaid upon and concerning the said petition and application should be in favor of the granting and giving by the said common council of the consent and permission so as aforesaid in and by the said petition and application prayed and applied for; against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity.is [18. People V. Sharp, 5 N. Y. Cr. R. 389, 391. Form used in this case for indicting persons for bribery of alderman.] 579 Pkecedents of Fobms. FORM 17. Bribery. State of West ViBaiwiA, Wyomtng Countt, to wit: la the Circuit C!ourt said county. The jurors of the State of West Virginia in and for the body of the county of Wyoming, and now attending the said court, upon their oath present that on the 28th day of January, in the year 1876, a certain cause in which Boyd E. Lusk was plaintiff and Drury Halsey was defendant, was pending and undetermined in the County Court of said county and at the January term of said court, on the 28th day of January, 1876, by agreement of parties the matters in controversy in said cause were submitted to the arbitration and award of Martin G. Clay, Henry Ellis and Smith Trent, selected and chosen by the parties, and duly qualified according to law to act as such arbi- trators; and that on the 29th day of January, 1876, while the said matters of controversy in said cause were before the said arbitrators, the said Boyd E. Lusk in the said county, with the intent to bias the opinion and influence the decision of the said Martin G. Clay, one of the said arbitrators to whom was submitted the matter in controversy in said cause, pending as aforesaid, did then and there unlawfully, wilfully and corruptly, promise to give and offer to pay to him, the said Martin G. Clay as such arbitrator as aforesaid, to prostitute and betray the duties devolving on him as such arbi- trator as aforesaid by giving his opinion and deciding the said matters in controversy in said cause then pending before said arbitrators as aforesaid, in favor of the said Boyd E. Lusk, against the peace and dignity of the State. Upon the evidence of Martin G. Clay, sworn in open court, to give testimony before the grand jury.w [19. State V. Lusk, 16 W. Va. 767. Form used in this case for indicting one for offering to bribe an arbitrator.] FORM 18. Barglary. In the CmcuiT Cotjkt of the State of Oregon, fob the CotrNTT of Linn : The State of Oregon, Plaintiff, v. Charles Ryan, Defendant. Charles Ryan is accused by the giand jury of the county of Linn, in the State of Oregon, by this indictment, of the crime of burglary, committed as follows : The said Charles Ryan, on the eighth day of November, A. D. 1887, in the county of Linn, and State of Oregon, then and there being, did then and there feloniously and burglariously break and enter in the night time a dwelling-house, in which there was at that time a human being, namely, 580 Precedents of Foems. Ella M. Ma«k, with the intent to commit rape therein, by forcibly breaking aji outer door of said dVelling-houae; and the said Charles Ryan having so entered said dwelling-house with such intent, did then and there commit an assault upon Ella M. Mack, the person lawfully then in such house. Con- trary to the statutes in such cases made and provided', and against the peace and dignity of the State of Oregon. Dated at Albany, in the county of Linn, and State of Oregon, the 15th day of November, A. D. 1887. GEO. W. BELT, District Attorney, so [20. State v. Ryan, 15 Oreg. 572, holding that an accused could not be convicted of assaidt with intent to commit rape, under the above indictment.] FORM 19. Burglary. The grand inquest of the Commonwealth of Pennsylvania, inquiring in and' for the county of Clarion, upon their respective oaths and aflBrmations, do present, that J. M. Carson, late of said county, yeoman; James McAbee, late of said county yeoman; William Reath, late of said county, yeoman ; Bub Gilger, late of said county, yeoman ; on the sixth day of January, A. D. 1893, at the county aforesaid, and within the jurisdiction of this court, wilfully and feloniously did break and enter the dwelling-house of M. J. Baker, there situate, with intention the goods, chat- tels and property of M. J. Baker, in the said dwelling-house, then and there being, then and there feloniously to steal, take and carry away, one range, of the value of eight dollars; one lot of carpets of the value of five dollars; one lot of carpenter tools, of the value of ten dollars; one lot of lumber of the value of forty dollars, the goods, chattels and property of the said M. J. Baker, then and there being found, did then and there the good's, chattels, and property above mentioned, in the said dwelling-house, feloniously steal, take and carry, to the great damage of the said M. J. Baker, contrary to the form of the Act of Assembly, in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania. And the inquest aforesaid, inquiring as aforesaid, upon their oaths and aflSrraations respectively, as aforesaid, do further present, that J. M. Car- son, late of said county, yoeman; James McAbee, late of said county, yeo- man; William Reath, late of said county, yeoman; Bub Gilger, late of said county, yeoman, on the day and year aforesaid, at the county aforesaid, and within the jurisdiction of this court, did wilfully and maliciously break, injure and destroy a certain: window, belonging to the dwelling-house of one M. J. Baker, contrary to the form of the Act of Assembly, in such case 581 Peecedents of Foems. made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.^! [21. Common, v. Carson et al., 166 Pa. St. 179, 180, holding that the first count was defective as a count for burglary at common law, but that it was good under the Pa. Act of April 22, 1863, P. L. 531, prescribing a penalty for breaking and entering a dwelling-house in the day time, and also for wilfully and maliciously entering the same with felonious intent " either by day or by night, with or without breaking."] FORM 20. Burglary 'with Intent to Commit Rape. STATE OF ABKANSAS AGAINST PaT BEADUTY INDICTMENT FOB BUBOLABT. Bradley County Circuit Court, March Term, A. D. 1878. The grand jury of Bradley county, in th-e name and by the authority of the State of Arkansas, accuse Pat. Bradley of the crime of burglary, com- mitted as follows, to wit: The said Pat. Bradley, in the eovmty aforesaid, on or about 11 o'clock of the night time of the fourteenth day of July, A. D. 1877, did unlawfully, feloni- ously, and burglariously enter the dwelling house of one E. D. Sled, with the intention to commit a felony, to wit, an assault with intent to commit rape in and upon the body of one Mary J. Sled, a female, the wife of the said E. D. Sled, with intent feloniously to ravish and carnally know the said Mary J. Sled, forcible and against her will, contrary to the statute in such case made and provided, and against the peace and dignity of the State of Arkansas. J. C. BARROW, Prosecuting Attorney .22 [22. Bradley v. State, 32 Ark. 704, holding that in an indictment for such an offense it is unnecessary to allege an assault.] FORM 21. Carrying IVeapons. STATE OF ABKANSAB V. J. S. HELT: The grand jury of Lincoln county, in the name and by the authority of the State of Arkansas, accuses J. S. Helt of the crime of carrying a weapon, com- mitted as follows, to wit: The said J. S. Helt, in the county and State afcwe- said, on the 20th day of April, 1888, did carry a pistol as a weapon contrary 582 Peecedents of Fokms. to the statute in such cases made and provided, and against the peace and dignity of the State of Arkansas.23 [23. Helt V. State, 52 Ark. 279, 280, holding that where an indictment recites that it was found in the Circuit Court of a county emhrasing two judicial districts, without specifying in which district it was found, and it appears from the term at which the indictment was found and the date of the clerk's indorsement upon it when it was received from the grand jury, that it was returned at a time when the court for one of the districts alone could legally be in session, it will be presumed from the indictment itself that it was returned by a grand jury legally empaneled in that district.] FORM 22. Concealing Birth of Child. State of Nobth Cabomna, Bueke County — Sdpebioe Cotjet, SPBnia Tebm, 1855. The jurors for the State, upon their oath, present that Lura Stewart, late of the county of Burke, on the first day of March, A. D. 1885, with force and arms at and in the county aforesaid, unlawfully and wilfully did endeavor to conceal the birth of a new born male child, not yet named of her, the said Lura Stewart, by then and there secretly placing and leaving the dead body of said child in a secret place, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State. J. S. ADAMS, Solicitor.24 [2*. State V. Stewart, 93 N. C. 539, 540.] FORM 23. Confidence Game — Obtaining Money by Mean* of. State of Iujnois, St. Cxair County, ss.: Of the March Term of the St. Clair Circuit Court, in the year of our Lord 1868. The grand jurors chosen, selected, and sworn, in and for the county of St. Clair, State of Illinois, upon their oaths present, that Thomas Morton and James Stewart did, on the 18th day of February, in the year of our Lord one thousand eight hundred and sixty-eight, in the county of St. Clair aforesaid, unlawfully and feloniously obtain from one Daniel Hughes thirty dollars, of his money, by means and by use of the confidence game, 583 Peecedents of Foems. contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Illinois. And the jurors aforesaid, in the name and by the authority aforesaid, upon their oaths aforesaid, do further present that Thomas Morton and James Stewart, on the day and year aforesaid, and in the county aforesaid, did unlawfully and feloniously obtain from Daniel Hughes one United States legal tender treasury note, for the payment of ten dollars, and of the value of ten dollars, one bank note for the payment of ten dollars, and of the value of ten dollars, and two bank nptes for the payment of five dollars each, and of the value of five dollars each, the personal property then and there of the said Daniel Hughes, by means and by use then and there of the confidence game, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Illinois. J. B. HAY, State's Attorney .25 I2S. Morton v. People, 47 HI. 468.] FORM 24. Conspiracy. We, the grand jurors of the United States, chosen, selected, and sworn in and for the Northern District of Gfeorgia, upon our oaths, present: That heretofore, to wit, on the twenty-fifth day of July, in the year of our Lord one thousand eight hundred and eighty-three, Jasper Yarbrough, James Yarbrough, Dilmus Yarbrough, Neal Yarbrough, Lovel Streetman, Bold Emory, State Lemmons, Jake Hayes, and E. H. Green, all late of said Northern Dis- trict of Georgia, did, within the said Northern District of Georgia, and within the jurisdiction of this court, commit the offence of conspiracy, for that the said Jasper Yarbrough, James Yarbrough, Dilmus Yarbrough, Neal Yarbrough, Lovel Streetman, Bold Emory, State Lemmons, Jake Hayes and E. H. Green did then and there, at the time and place aforesaid, combine, con- spire and confederate together, by force, to injure, oppress, threaten, and intimidate Berry Saunders, a, person of color and a citizen of the United States of America of African descent, on account of his race, color, and pre- vious condition of servitude, in the full exercise and enjoyment of the right and privilege of suffrage in the election of a lawfully qualified person as a member of the Congress of the United States of America, and because the said Berry Saunders had so exercised the same, and on account of such exercise, which said right and privilege of suffrage was secured to the said Berry Saunders by the Constitution and law of the United States of America, the said Berry Saunders being then and there lawfully entitled to vote in said 584 Peecedents of Fokms. election, and having so then and there conspired the said Jasper Yarbrough, James Yarbrough, Dilmus Yarbrough, Neal Yarbrough, Lovel Streetman, Bold Emory, State Lemmons, Jake Hayes and E. H. Green did unlawfully, felo- niously and wilfully beat, bruise, wound and maltreat the said Berry Saund- ers, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America. "Second Count — And the jurors aforesaid, upon their oaths aforesaid, do further present: That heretofore, to wit, on the twenty-fifth day of July, in the year of our Lord one thousand eight hundred and eighty-three, Jasper Yarbrough, James Yarbrough, Dilmus Yarbrough, Neal Yarbrough, Lovel Streetman, Bold Emory, State Lemmons, Jake Hayes and E. H. Green, all late of said Northern District of Georgia, within the said Northern District of Georgia and within the jurisdiction of this court, did commit the offence of conspiracy, for that the said Jasper Yarbrough, James Yarbrough, Dilmus Yarbrough, Neal Yarbrough, Lovel Streetman, Bold Emory, State Lem- mons, Jake Hayes and E. H. Green, having then and there conspired together, by force, to injure, oppress, threaten and intimidate Berry Saunders, a person of color and a. citizen of the United States of America, of African descent, on account of his race, color, and pre- vious condition of servitude, did then and there unlawfully, wilfully and feloniously go in disguise on the highway, and on the premises of Berry Saunders, with the intent to prevent and hinder his free exercise and enjoy- ment of the right to vote at an election for a lawfully qualified person as a member of Congress of the United States of America, which said right had then and there been guaranteed to the said Berry Saunders by the Constitution and laws of the United States of America, the said Berry Saunders being then and there lawfully qualified to vote at said election; and having so con- spired with intent as aforesaid, the said Jasper Yarbrough, James Yarbrough, Dilmus Yarbrough, Neal Yarbrough, Lovel Streetman, Bold Emory, State Lem- mons, Jake Hayes and E. H. Green did then and there beat, bruise, wound and maltreat the said Berry Saunders, contrary to the form of the statute in such ease made and provided, and against the peace and dignity of the United States of America. EMORY, Supr. U. S. Atty. A true bill. Oct. 12th, 1883. J. C. KIRKPATRICK, Foreman. 26 [26. Ex parte Yarbrough, 110 U. S. 651, 655, holding that the ofi'ense of conspiring to intimidate a person of African descent from voting at an elec- tion for a member of Congress, as provided for by §§ 5508, 5520, U. S. Rev. St., was sufficiently described by the above indictment.] 585 Peecedents of Foems. FORM 25. Conspiracy. ■ United States of Ameeica, Easteen Disteict of Missoubi, ss. : In the District Court of the United States, for the Eastern Dieirict of Missouri. At the November Term of said court, A. D. 1875. The grand jurors of the United States of America, duly impanelled, sworn, and charged to inquire in and for the Eastern District of Missouri, on their oaths present that Orville E. Babcock and John A. Joyce, late of said district, on the first day of January, in the year of our Lord one thousand eight hundred and seventy-four, at the said district, did conspire, combine, confederate, and agree together among themselves, and with John McDonald, Joseph M. Fitzroy, Alfred Bevis, Edward B. Eraser, Rudolph W. Ulrici, Louis Teuscher, John Busby, Gordon B. Bingham and John W. Bingham, with cer- tain other persons, to the grand jurors aforesaid unknown, to defraud the United States of the internal revenue tax of seventy cents, then and there imposed by law upon each and every proof gallon of a large quantity, to wit, one million proof gallons of distilled spirits, thereafter to be produced at cer- tain distilleries, then and there situated in the city of St. Louis, within said district, to wit, the distillery then and there occupied by the said Alfred Bevis, and Edward B. Eraser, then and there situated at the northeast comer of Barton street and DeKalb street, in said city of St. Louis, and within said -district; the distillery then and there occupied by the said Rudolph W. Ulrici, and then and there situated at the southeast corner of Cedar street and Main street in the said city of St. Louis, and within said district; the dis- tillery then and there occupied by the said Louis Tenseher, and then and there situated at Nos. 2808, 2810, 2812, 2814 and 2816, inclusive. North Second street, in said city of St. Iiouis, and in said district; the distillery then and there occupied by the said John Busby, and then and there situated at the southwest corner of Cass avenue and Eleventh street, in said city of St. Louis, and within said district; the distillery then and there occupied by said Gordon B. Bingham and John W. Bingham, and then and there situated at No. 1313 Papin street, in said city of St. Louis, and within said district. • That afterward, to wit, on the eleventh day of July, in the year of our Lord one thousand eight hundred and seventy-four, and at the Eastern Dis- trict of Missouri, the said Alfred Bevis and Edward B. Eraser, in pursuance of, and in order to effect, the object of said conspiracy, combination, confed- eracy and agreement, so had as aforesaid, did remove from the said distillery situated as aforesaid at the northeast corner of Barton street and DeKalb street, in the said city of St. Louis, to a place other than the distillery ware- house, situated upon and constituting a part of the distillery premises, to wit, to a place to the jurors aforesaid unknown, a large quantity of spirits, to wit, ten thousand proof gallons thereof, upon which said spirits the internal reve- nue tax of seventy cents, then and there imposed by law upon each and every 586 Peecedents of Foems. proof gallon thereof, had not been first paid, and thereby did then and there defraud the United States of said tax. 5Chat afterward, to wit, on the said fifteenth day of July, in the year of our Lord one thousand eight hundred and seventy-four, and at the said Eastern District of Missouri, the said Rudolph W. Ulrici, in pursuance of, and in order to eflfeet, the object of said conspiracy, combination, confederacy and agreement, so had as aforesaid, did remove from the said distillery situated as aforesaid at the southwest corner of Cedar street and Main street, in the said city of St. Louis, to a place other than the distillery warehouse, situated upon and constituting a part of the said distillery premises, to wit, to a place to the jurors aforesaid unknown, a large quantity of spirits, to wit, ten thousand proof gallons thereof, upon which said spirits the internal revenue tax of seventy cents then and there imposed by law upon each and every proof gallon thereof, had not been first paid, and thereby did then and there defraud the United States of said tax. That afterward, to wit, on the said fifteenth day of July, in the year of our Lord one thousand eight hundred and seventy-four, at the Eastern District of Missouri, the said Louis Teuscher, in pursuance of, and in order to «fi'ect, the object of said conspiracy, combination, confederacy and agreement, so had as aforesaid, did remove from the said distillery, situated as afore- said at Nos. 2808, 2810, 2812, 2814 and 2816, inclusive, North Second street, in said pity of St. Louis, to a place other than a distillery warehouse, situated upon and constituting a part of the said distillery premises, to wit, to a place to the jurors aforesaid unknown, a large quantity of spirits, to wit, ten thou- sand proof gallons thereof, upon which said spirits the internal revenue tax of seventy cents, then and there imposed by law upon each and every proof gallon thereof, had not been first paid, and thereby did then and there defraud the United States of said tax. That afterward, to wit, on the said fifteenth day of July, in the year of our Lord one thousand eight hundred and seventy-four, and at the said Eastern District of Missouri, the said John Busby, in pursuance of and in order to effect, the object of said conspiracy, combination, confederacy and agreement, so had as aforesaid, did remove from the said distillery, situated as aforesaid at the southwest corner of Cass avenue and Eleventh street, in the said city of St. Louis, to a place other than the distillery warehouse, situ- ated upon and constituting a part of the said distillery premises, to vrit, to a place to the jurors aforesaid unknown, a large quantity of spirits, to wit, ten thousand proof gallons thereof, upon which said spirits the internal revenue tax of seventy cents, then and there imposed by law upon each and every proof gallon thereof, had not been first paid, and thereby did then and there defraud the United States of said tax. That afterward, to wit, on the said fifteenth day of July, in the year of our Lord one thousand eight hundred and seventy-four, and at the said Eastern District of Missouri, the said Gordon B. Bingham and John W. Bing- ham, in pursuance of, and in order to effect, the object of said conspiracy, 587 Peecedents of Forms. combination, confederacy and agreement, so had as aforesaid, did remove from the said distillery situated as aforesaid at No. 313 Papin street, in the said city of St. Louis, to a place other than the distillery warehouse, situated upon and constituting a part of the said distillery premises, to wit, ten thousand proof gallons thereof, upon which said spirits the internal revenue tax of seventy cents, then and there imposed by law upon each and every proof gallon thereof, had not been first paid, and thereby did then and there defraud the United States of said tax. That afterward, to wit, on the first day of February, in the year of our Lord one thousand eight hundred and seventy-four, and at the said Eastern District of Missouri, the said John A. Joyce, in pursuance of, and in order to effect, the object of said conspiracy, combination, confederacy and agree- ment, so had as aforesaid, did aid and abet in the removal from the said dis- tillery of Alfred Bevis and Edward B. Fraser, to a place to the jurors afore- said unknown, of a large quantity of distilled spirits, to wit, one thousand propf gallons thereof, upon each and every proof gallon of which said spirits the internal revenue tax of seventy cents then and there imposed by law, had not first been paid, contrary to the form of the statute of the United States in such cases made and provided, and against their peace and dignity. DAVID P. DYER, United States Attorney for the Eastern District of Missouri. '27 [27. United States v. Babcock, 3 Dillon C. C. C. 623. Form used in this case for conspiracy to defraud the United States of internal revenue tax.] FORM 26. Conspiracy. DisTEicr OP Minnesota, ss. : The grand jury of the United States of America, within and for said district, on their oath present that heretofore, to wit, on the second day of June, in the year of our Lord one thousand eight hundred and ninety, at the city of Minneapolis, in this district, Edward A. Stevens, Thaddens S. Dickey, Louis E. Strum, and other persons to the grand jurors aforesaid unknown, meditated and devised a scheme to procure false, exaggerated, and fictitious schedules and returns of the population of said city on the first day of June, in the year of our Lord one thousand eight hundred and ninety, to be made and forwarded to the supervisor of the second census district of Minnesota by the several enumerators employed, and to be employed, to take the eleventh census of the United' States within said city. That on said second day of June, one Edward J. Davenport was one of the supervisors of census, to wit, the supervisor of census within and for the second supervisor's district of Minnesota, duly appointed, qualiiied, and acting as such, under and pursuant to the provisions of an act of Congress of the United States, to wit, an act 588 Pebcedents of Fokms. entitled "An act to provide for taking the eleventh and subsequent censuses;" approved March first, A. D. one thousand eight hundred and eighty-nine, and one Louis A. Strum was an. enumerator duly employed, appointed and quali- fied, and acting as such under and pursuant to the provision of said act, within and for a certain subdivision of and within said census district, to wit, subdivision number 367; he, the said Louis B. Strum, lately before then, to wit, on said second day of June, having taken and subscribed the oath required by (section eight of) said act. That the said Louis E. Strum on said second day of June had in his custody and possession, as such enumerator divers, to wit, three hundred, blank schedules of the form approved by the Secretary of the Interior to be filled in the course of the enumeration to be by him. made, according to the provisions of said act, and being the same blank schedules that had been issued, pursuant to the provisions of said act, from the census office, and to him, the said Louis E. Strum, before then, lately, to wit, on said second day of June, transmitted and delivered by said supervisor of census. And the jurors aforesaid, upon their oath aforesaid, do further present that afterwards, to wit, on the said second day of June, in the year of our Lord one thousand eight hundred and ninety, at the city of Minneapolis, in this district, the said Davenport still being and acting as the supervisor of census within and for said census district, and the said Louis E. Strum still being and acting as an, enumerator within and for his said subdivision, and still having in his custody and possession as such enumerator the said blank original schedules, the same being of the kind and form known as " schedule No. 1," and relating to and containing inquiries touching and concerning popu- lation and social statistics, Edward A. Stevens, Thaddens S. Dickey, and the _ said Louis E. Strum, yeomen, late of said city, together with other evil dis- posed persons whose names are as yet to the jurors aforesaid unknown, did unlawfully and maliciously conspire, combine, and confederate together and with each other, in and upon one of said schedules then and there unlawfully, wilfully, and knowingly to put, place, insert, and write the following imag- inary, false, and fictitious names of persons, that is to say: Gordon Douglas, Grace Douglas, David Douglas, Belke Douglas, Robert Douglas, Mary J. Douglas, Ann F. Douglas, William Douglas, Andrew Douglas, — in the several blanks left and provided thereon for the names of persons respectively to be enumerated thereon, pursuant to the provision of said act, and imaginary, false, pretended and fictitious answers, items of information, particulars, facts, and statistics in the several blanks left and provided in said blank schedule for answers of the several inquiries respectively set forth and contained therein concerning the persons to be enumerated thereon and required by said act to be answered in and upon said schedule, and' the same schedule, afterwards, to wit, on said day with said names and said imaginary, false, pretended, and fictitious answers, items of information, particulars, facts aiid statistics, put, placed, inserted, and written therein in manner and form aforesaid, to wilfully and knowingly duly certify, and have and procure to be duly certi- 589 Peecedents of Foems. fled, in form of law, by him, the said Louis S. Strum, as enumerator, as afore- said, within and for said subdivision, and the same schedule filled and certi- fied as aforesaid, afterwards, to wit, at said city of Minneapolis on said day, to unlawfully, knowingly, ana wilfully forward, with other like schedules, to the said supervisor as his, the said Louis E. Strum's, returns under the pro- visions of said act, they, the said Edward S. Stevens, Thaddens S. Dickey, and Louis E. Strum, then and there, to wit, when they conspired, combined, and confederated together as aforesaid, well knowing that the said names, answers, items of information, particulars, facts, and statistics, and each and every one of them, were imaginary, pretended, false, and fictitious, and that none of said imaginary, pretended, and fictitious persons were, on the first day of June, in the year of our Lord one thousand eight hundred and ninety, or ever, residents or inhabitants of his, the said Louis E. Strum's, said sub- division; and he, the said Louis E. Strum, not having obtained said names, answers, items of information, particulars, facts, and statistics, or any or either of them, by an inquiry made by him, the said Louis E. Strum, of any one, nor by visit by him, the said Louis E. Strum, personally to any dwell- ing-house or family in his said subdivision, nor in the course of enumeration or canvass by him, the said Louis E. Strum, of his said subdivision, as they, the said Edward A. Stevens, Thaddens S. Dickey, and Louis E. Strum then and there well knew. That afterwards, to wit, on the said second day of June, in the year of our Lord one thousand eight hundred and ninety, at the city of Minneapolis, in said district, pursuant to said conspiracy, and to promote and effect the object thereof the said Louis E. Strum, he, the said I>ouis E. Strum, still being and acting then and there as enumerator, as aforesaid, within and for his said subdivision, and still having in his custody and possession as such enumerator, the said schedules, and the said Davenport still being and acting then and there as supervisor of census within and for said second census district, in and upon one of said blank schedules, to wit, the blank schedule last hereinbefore mentioned, did then and there unlawfully, wilfully, and knowingly put, place, insert, and write the several imaginary false and fic- titious names aforesaid, in the several blanks left and provided therein for the names of persons respectively to be enumeratod thereupon, pursuant to the provbions of said act, and divers imaginary, false, pretended, and ficti- tious answers, items of information, particulars, facts and statistics in the sev- eral blanks left and provided in said blank schedule for answers to the several inquiries respectively set forth and contained therein concerning the persons to be enumerated thereon, and required by said act to be answered in and upon said schedule. And the jurors aforesaid, upon their oath aforesaid, do say that the said Edward A. Stevens, Thaddens S. Dickey, and Louis E. Strum, then and there, to wit, at the said city of Minneapolis, on the said second day of June, in the year of our Lord one thousand eight hundred and ninety, unlawfully and maliciously did conspire, combine, and confederate together and with each. 590 Peecedents of Foems. other to unlawfully, wilfully, and knowingly make the fictitious returns afore- said, in manner and form aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States. And the jurors aforesaid, upon their oath aforesaid, do further present that afterwards, to wit, on the said second day of June ui the year of our Lord one thousand eight hundred and ninety, at the city of Minneapolis, in this district, the said Davenport, still being and acting as the supervisor of census within and for said census district, and the said Louis E. Stnun, still being and acting as an enumerator within and for his said subdivision, and stiU having in his custody and possession as such enumerator the said blank original schedules, the same being of the kind and form known as " Schedule No. 1," relating to and containing inquiries touching and concerning popula- tion and social statistics, Edward A. Stevens, Thaddens S. Dickey, and the said Louis E. Strum, yeomen, late of said city, together with other evil dis- posed persons whose names are as yet to the jurors aforesaid unknown, did unlawfully and maliciously conspire, combine and confederate together with each other in and upon one of said schedules then and there unlawfully, wil- fully, and knowingly to put, place, insert and write the following imaginary, false and fictitious names of persons, that is to say: Ambrose W. Daynes, Mattie F. Daynes, John P. Daynes, William Daynes, Obedia Daynes, Lizzie Daynes, in the several blanks left and provided thereon for the names of per- sons respectively to be enumerated thereon, pursuant to the provisions of said act, and imaginary false, pretended, and fictitious answers, items of informa- tion, particulars, facts, and statistics in the several blanks left and provided in said blank schedule for answers to the several inquiries respectively set forth and contained therein, concerning the persons to be enumerated thereon, and required by said act to be answered in and upon said schedule, and the same schedule afterwards, to wit, on said day, with said names and said imaginary, false, pretended and fictitious answers, items of information, par- ticulars, facts and statistics put, placed, inserted and written therein, in manner and form aforesaid, to wilfully and knowingly duly certify and have, and procure to be certified in form of law, by him, the said Louis E. Strum, as enumerator as aforesaid, within and for said subdivision, and the same schedule filled and certified as aforesaid, afterwards, to wit, at said city of Minneapolis on said day, to unlawfully, wilfully and knowingly forward, with other like schedules to the said supervisor as his, the said Louis E. Strum's returns, under the provisions of said act, they, the said Edward A. Stevens, Thaddens S. Dickey, and Louis E. Strum, then and there, to wit, when they conspired, combined, and confederated together as aforesaid, well knowing that the said names, answers, items of information, particulars, facts and statistics, and each and every one of them, were imaginary, pretended, false and fictitious, and that none of said imaginary, pretended, and fictitious persons were, on the first day of June, in the year of our Lord one thousand 591 Peecedents of Foems. eight hundred and ninety, or ever, residents or inhabitants of his, the said Louis E. Strum's said subdivision, and he, the said Louis E. Strum, not having obtained said names, answers, items of information, particulars, facts, and statistics, or any or either of them, by any inquiry made by him, the said Louis E. Strum, of any one, nor by visit by him, the said Louis E. Strum, personally to any dwelling-house or family in his said subdivision, nor in the course of enumeration or convass by him, the said Louis E. Strum, of his said subdivision, as they, the said Edward A. Stevens, Thaddens S. Dickey, and Louis E. Strum, then and there well knew. That afterwards, to wit, on the said second day of June, in the year of our Lord one thousand eight hundred and ninety, at the city of Minneapolis, in said district, pursuant to said conspiracy, and to promote and effect the object thereof, the said Louis E. Strum, he, the said Louis E. Strum, still being and acting then and there as enumerator as aforesaid, within and for his said subdivision and still having in his custody and possession as such enumerator, the said schedules, and the said Davenport, still being and acting then and there as supervisor of census within and for said second census district, in and upon one of said blank schedules, to wit, the blank schedule last herein- before mentioned, did then and there unlawfully, wilfully and knowingly put, place, insert, and write the several imaginary, false, and fictitious names aforesaid in the several blanks left and provided for the names of persons respectively to be enumerated thereon pursuant to the provisions of said act, and divers imaginary, false, pretended and fictitious answers, items of in- formation, particulars, facts, and statistics in the several blanks left and provided in said blank schedule for answers, to the several inquiries respect- ively set forth and contained therein concerning the persons to be enumerated thereon, and required by said act to be answered in and upon said schedule. And so the grand jurors aforesaid, do say that the said Edward A. Stevens, Thaddens S. Dickey, and Louis E. Strum, then and there, to wit, at the said city of Minneapolis, on the said second day of June, in the year of our Lord one thousand eight hundred and ninety, unlawfully and maliciously did con- spire, combine and confederate together, and with each other, to unlawfully, wilfully, and knowingly make the fictitious returns aforesaid, in manner and form aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States. And the jurors aforesaid, upon their oath aforesaid, do further present that after- wards, to wit, on the said second day of June, in the year of our Lord one thousand eight hundred and ninety, at the city of Minneapolis, in this district, the said Davenport still being and acting as the supervisor of census within and for said second census district, and the said Louis E. Strum still being and acting as an enumerator within and for his said sub- division, and still having in hia custody and possession as such enumerator, the said blank original schedules, Edward A. Stevens, Thaddens S. Dickey, and the said Louis E. Strum, yeomen, late of said city, together with other 593 Peecedbnts of Foems. «vil disposed persons, whose names are as yet to the jurors aforesaid un- known, did unlawfully and maliciously conspire, combine and confederate together, and with each other, in and upon one of said schedules then and there unlawfully, wilfully, and knowingly to put, place, insert, and write the following imaginary, false, and fictitious names of persons, that is to say: Gordon Douglas, Grace Douglass, David Douglass, Belke Douglas, Robert Douglass, Mary J. Douglass, Ann F. Douglass, William Douglas, Andrew Douglas, in the several blanks left and provided thereon for the names of persons respectively to be enumerated thereon, pursuant to the provisions of said act, and imaginary, false, pretended, and fictitious answers, items of information, particulars, facts, and statistics in the several blanks left and provided in said blank schedule for answers to the several inquiries respect- ively set forth and contained therein concerning the persons to be enumerated thereon, and required by said act to be answered in and upon said schedule; and in and upon one other of said schedules then and there unlawfully and knowingly to put, place, insert and write the following names of persons not inhabitants of or within his, the said Louis E. Strum's, said subdivision on the first day of June, in the year of our Lord one thousand eight hundred and ninety, that is to say: Ambrose W. Daynes, Mattie F. Daynes, John P. Daynes, William Daynes, Obedia Daynes, Lizzie Daynes, in the several blanks left and provided thereon for the names of persons respectively to be enxune- rated thereon, pursuant to the provisions of said act, and imaginary false, pretended, and fictitious answers, items of information, particulars, facts and statistics in the several blanks left and provided in said blank schedule for answers to the several inquiries respectively set forth and contained therein concerning the persons to be enumerated thereon and required by said act to be answered in and upon said schedule, and the said schedules afterwards, to wit, on such day, with said names and said imaginary, false, pretended, and fictitious answers, items of information, particu- lars, facts and statistics put, placed, inserted, and written therein, in manner and form aforesaid, to then and there wilfully and know- ingly duly certify, and have and procure to be certified in form of law by him, the said Louis E. Strum, as enumerator as aforesaid, written and for said subdivision, and the same schedules, filled and certified as aforesaid afterwards, to wit, at said city of Minneapolis, on said day to unlawfully, knowingly, and wilfully forward with other like schedules, to the said supervisor as his, the said Louis E. Strum's, returns under the pro- vision of said act; they, the said Edward E. Stevens, Thaddens S. Dickey, and Louis E. Strum, then and there, to wit, when they conspired, combined, and confederated together as aforesaid, well knowing that said names, answers, items of information, particulars, facts, and statistics, and each and every of them, were -then and there imaginary, pretended, false, and fictitious, and that none of said imaginary, pretended, fictitious, and non-resident persons were, on the first day of June, in the year of our Irf>rd one thousand eight hundred and ninety, or ever, residents or inhabitants of his, the said Louis 593 38 Peecedents of Foems. E. strum's, said subdivision, and' he, the said Louis E. Strum, not baying obtained said names, answers, items of information, particulars, facts and statistics, or any or either of them, by any inquiry made by him or any one, nor by visit by him, the said Louis E. Strum, personally to any dwelling- house or family in his subdivision, nor in the census of enumeration or can- vass by him, the said Louis E. Strum, of his subdivision, as they, the said Edward A- Stevens, Thaddens S. Dickey and Louis E. Strum, then and there well knew. That afterwards, to wit, on said second day of June, in the year of our Lord one thousand eight hundred and ninety, at the city of llinneapolis, in said district, pursuant to said conspiracy, and to promote and effect the object thereof, the said Louis E. Strum, he, the said Louis E. Strum, still being and then and there acting as enumerator as aforesaid, within and for his said subdivision, and still having in his custody and possession as such enumerator, the said schedules, and the said Davenport still being and acting then and there as supervisor of census within and for said second census district, in and upon one of said blank schedules did then and there unlaw- fully, wilfully, and knowingly, insert, put, place, and write the following imaginary, false, and fictitious names, that is to say: Gordon Douglas, Grace Douglas, David Douglas, Belke Douglas, Robert Douglas, Mary J. Douglas, Ann F. Douglas, William Douglas, Andrew Douglas, — in the several blanks left and provided thereon for the names of persons respectively to be enumerated thereon, pursuant to the provisions of said act, and divers imag- inary, false, pretended, and fictitious aiLswers, items of information, particu- lars, facts and statistics in the several blanks left and provided in said blank schedules for answers to the several inquiries respectively set forth and contained therein concerning the persons to be enumerated thereon, and required by said act to be answered in and upon said schedule, and in and upon another one of said blank schedules did then and there unlawfully, wil- fully, and knowingly put, place, insert, and write the following imaginary, false, and non-resident names, that is to say: Ambrose W. Daynes, Mattie F. Daynes, John P. Daynes, William Daynes, Obedia Daynes, Lizzie Daynes, — in the several blanks left and provided thereon for the names of persons respectively to be enumerated thereon pursuant to the provisions of said act, and divers imaginary, false, pretended, and fictitious answers, items of in- formation, particulars, facts and statistics in the several blanks left and provided in said blank schedule for answers to the several inquiries respec- tively set forth and contained therein concerning the persons to be enume- rated thereon, and required by said act to be answered in and upon said schedule. And so the grand jurors aforesaid, upon their oath aforesaid, do say that the said Edward A. Stevens, Thaddens S. Dickey, and Louis E. Strum, then and there, to wit, at the said city of Minneapolis, on the said second day of June, in the year of our Lord one thousand eight h\mdred and ninety, unlaw- fully and maliciously did conspire, combine, and confederate together, and 594 Peecedents of Foems. ■with each other, to unlawfully, wilfully, and knowingly make the fictitious returns aforesaid, in manner and form aforesaid contrary to the form of the statute in such eases made and provided, and against the peace and dignity of the United States, And the jurors aforesaid, upon their oath aforesaid, do further present that afterwards, to wit, on said second day of June, in the year of our Lord one thousand eight hundred and ninety, at the city of Minneapolis, in this district, the said Davenport still being and acting as the supervisor of census within and for said census district, and the said Louis E. Strum still being and acting as an enumeratoo: within and for his said subdivision, and still having in his custody and possession as such enumerator the said blank original schedules, Edward A. Stevens, Thaddens S. Dickey, and the said Louis E. Strum, yeoman, late of said city, together with other evil disposed persons whose names are as yet to the jurors aforesaid unknown, did unlaw- fully and maliciously conspire, combine, and confederate together, and with each other, in and upon divers, to wit, fifty, of said blank schedules then and there unlawfully, wilfully, and knowingly, to put, place, insert, and write divers, to wit, three hundred imaginary, false, and fictitious names in the several blanks left and provided thereon respectively for the names of persons to be enumerated thereon, pursuant to the provisions of said act, and divers imaginary, false, pretended, and fictitious answers, items of information, particulars, facts and statistics in the several blanks left and pro- vided in said blank schedules respectively for answers to the several inquiries set forth and cointained therein respectively concerning the persons to be enumerated thereon, and required by said act to be answered in and upon said schedules respectively, and in and upon divers, to wit, fifty, other of said blank schedules, then and there unlawfully, wilfully and knowingly to put, place, insert, and write divers, to wit, three hundred names of persons not inhabitants or within his, the said Louis E. Strum's, said subdivision, on the first day of June, in the year of our Lord one thousand eight hundred and Hinety, in the several blanks left and provided thereon respectively for the names of persons to be enumerated thereon, piirsuant to the provisions of said act, and divers imaginary, false, pretended and fictitious answers, items of information, particulars, facts, and statistics in the several blanks left and pro- vided in said blank schedules respectively for answers to the several inquiries set forth and contained therein respectively concerning the persons to be enumerated thereon, and required by said act to be answered in and upon said schedules, and the said schedules, and each and every of them, with said imaginary, false, pretended, fictitious, and non-resident names, and said imaginary, false, pretended, and fictitious answers, items of information, par- ticulars, facts and statistics put, placed, inserted, and written therein, in man- ner and form aforesaid, to unlawfully, wilfully and knowingly, duly certify and have and procure to be duly certified, in form of law by him, the said Louis E. Strum, as enumerator as aforesaid, within and for his said sub- division, and the same schedules filled and certified as aforesaid afterwards, 595 Peecedents of Forms. to wit, at the said city of Minneapolis on said day to unlawfully, knowingly and wilfully forward, with other like schedules to the said supervisor as his, the said Louis E. Strum's, returns under the provision of said act, they, the said Edward A. Stevens, Thaddens S. Dickey, and Louis E. Strum, then and there, to wit, when they conspired, combined, and confederated together as aforesaid, well knowing that the said names, answers, items of informa- tion, particulars, facts and statistics, and each and every of them, were then and there imaginary, pretended, false and fictitioas and that none of said imaginary, pretended, fictitious and non-resident persons were on the first day of June, in the year of our Lord one thousand eight hundred and ninety, or ever, residents or inhabitants of his, the said Louis E. Strnm's, said sub- division and that the said names were not then and there, or ever, the names of persons having their place or places of abode or being inhabitants, nor was either of them the name of any person having his or her place of abode, or being an inhabitant of or within his, the said Louis E. Strum's, said sub- division, on said first day of June in the year of our Lord one thousand eight hundred and ninety, and he, the said Louis E. Strum, not having obtained said names, answers, items of information, particulars, facts, and statistics, or any or either of them, by any inquiry made by him of any one, nor by visit by him, the said Louis E. Strum, personally to any dwelling-house or family in his said subdivision, nor in the course of enumeration or canvass by him, the said Louis E. Strum, of his said subdivision, as they, the said Edward A. Stevens, Thaddens S. Dickey, and Louis E. Strum, then and there well knew. That afterwards, to wit, on second day of June, in the year of our Lord one thousand eight hundred and ninety, at the city of Minneapolis, in said district, pursuant to said conspiracy, and to promote and effect the object thereof, the said Louis E. Strum, he, the said Louis E. Strum, still being and acting then and there as enumerator as aforesaid within and for his said subdivision, and still having in his custody and possession as such enume- rator the said schedules, and the said Davenport still being and acting then and there as supervisor of census within and for said second census district, in and upon divers, to wit, fifty, of said blank schedules, did then and there unlawfully, wilfully and knowingly put, place, insert, and write the follow- ing fictitious names, to wit, Grace Douglas, and Mattie F. Daynes and other names, to wit, three hundred imaginary, false and fictitious names in the several blanks left and provided thereon respectively for the names of per- sons to be enumerated thereon, pursuant to the provisions of said act, and divers imaginary, false, pretended and fictitious answers, items of information, particular!?, facts, and statistics, in the several blanks left and provided in said blank schedules respectively for answers to the several inquiries set forth and contained therein respectively concerning the persons to be enumerated thereon, and required by said act to be answered in and upon said schedules respectively ; and in and upon divers, to wit, fifty other of said blank schedules, did then and there unlawfully, wilfully and knowingly put, place, insert and 596 Peecedents of Forms. write divers, to wit, thi-ee hundred imaginary, false, pretended, and non- resident names, in the several blanks left and provided thereon respectively for the names of persons to be enumerated thereon, pursuant to the pro- visions of said act, and divers imaginary, false, pretended, and fictitious answers, items of information, particulars, facts and statistics in the several blanks left and provided in said blank schedules respectively for answers to the several inquiries set forth and contained therein respectively concerning the persons to be enumerated thereon, and required by said act to be answered in and upon said schedules respectively. And so the grand' jurors aforesaid, upon their oath aforesaid, do say that the said Edward A. Stevens, Thaddens S. Dickey, and Louis E. Strum, then and there, to wit, at the said city of Minneapolis, on the said second day of June, in the year of our Lord one thousand eight hundred and ninety, unlawfully and maliciously did conspire, combine, and confederate together and with each other to vinlawfully, wilfully, and knowingly, make the ficti- tious returns aforesaid, in manner and form aforesaid, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the United States. i GEO. N. BAXTER, Special Assistant U. S. Attorney .28 [28. United States v. Stevens, 44 Fed. 132. Form used in this case in in- dicting for conspiracy to make false certificates and also to make false re- turns in violation of the census laws. It was held that in stating the object of the conspiracy, the same certainty and strictness are not required as in the indictment for the offense conspired to be committed and declaring that " certainty to a common intent suJBficient to identify the offense which the defendants conspired to commit is all that is required."] FORM 27. Conspiracy. The grand inquest of the State of Delaware and the body of New Castle county on their oath and aflSrmation, respectively, do present: That Samuel A. McDaniel, of the Hundred of New Castle; Harvey B. Wig- glesworth, of the Hundred of Wilmington, and Walter Rash, of the Hundred of Wilmington, all in the county of New Castle and the State of Delaware, on the 31st of March in the year of our Lord one thousand nine hundred and one, at New Castle Hundred, in the county of New Castle, aforesaid, he, the said Samuel A. McDaniel then and there being the sheriff of said county of New Castle, and he, the said Harvey B. Wigglesworth, then and there being a warden in the county jail for said county and a deputy under him, the said Samuel A. McDaniel sheriff as aforesaid, and the said Walter Rash, then and there 597 Peecedents of Fobms being a warden in the said county jail and a deputy under him, the said Samuel A. McDaniel, sheriff as aforesaid, and he, the said Evan G. Boyd, then and there being mayor of the city of New Castle, in said county, and being persons of evil minds and dispositions, with force and arms unlawfully and wickedly did conspire, combine, confederate and agree together, by certain false pretenses, unlawfully to obtain for the use and benefit of the said Samuel A. McDaniel, from a certain Horace G. Eettew, the said Horace G. Eettew then and there being receiver of taxes and county treasurer of the county of New Castle aforesaid, a large sum of money, to wit, the sum of two thousand five hundred dollars, lawful money of the United States of America, the kind and denomination of which money is to the jurors afore- said unknown, of the money, goods and chattels then and there the property of and in the ownership, possession and control of him, the said Horace G. Rettew, receiver of taxes and county treasurer for said New Castle county as aforesaid, the which said false pretenses in pursuance of and according to the said conspiracy, combination, confederacy and agreement of the said Samuel A. McDaniel, Harvey B. Wigglesworth, Walter Bash and Evan G. Boyd, so had as aforesaid, were thereafter, on and about the 30th of June, 1901, at the county aforesaid, embodied in a certain false, deceitful, fraudu- lent and padded bill of the said Samuel A. McDaniel, as sheriff as aforesaid, for the three months ending on the said 30th day of June, A. D. 1901, which said false, deceitful, fraudulent and padded bill was in due course then and there presented by the said Samuel A. McDaniel, as sheriff as aforesaid, to George D. Kelley, county comptroller for the county of New Castle aforesaid, and to the Lievy Court commissioners of New Castle county aforesaid, for the purpose of then and there obtaining the approval thereon by the said comptroller for said county and by the said Levy Court commissioners for said county, and the consequent payment thereof then and there out of the funds and moneys which were then and there of the property of and in the possession, ownership and control of him, the said Horace G. Kettew, receiver of taxes and county treasurer for said county, and by which said false, deceitful, fraudulent and padded bill was then and there falsely, untruly, fraudulently and knowingly stated and set forth the pretended and therein alleged number of vagrants lodging and prisoners being and remaining in the jail of New Castle couniy from day to day in and dur- ing the three months ending on the said 30th day of June, A. D. 1901, with intent then and there by means of the said false pretenses to cheat and de- fraud the said Horace G. Kettew, receiver of taxes and county treasurer of said county as aforesaid, of the said sum of money, to the evil example of all others in like case offending and against the form. of an act of the General Assembly in case made and provided, and against the peace and dignity of the State.29 (29. State v. McDaniel, 4 Penn. (Del.) 97, 54 A. 1056. In this case the above Indictment was, on a motion to quash, held suflBcient.] 598 Peecedents of Foems. FORM 28. Conspiracy. State of Maeyiand, City of Baltimoke, to wit: The jurors for the State of Maryland for the body of the city of Baltimore, on their oath present, that by an act of C!ongress of the United States, passed on the tenth day of April, in the year of our Lord one thousand eight hundred and sixteen, at the city of Washington, entitled " An act to incorporate the subscribers to the Bank of the United States," a bank was established and chartered as a corporation and body politic, by the name and style of The President, Directors and Company, of the Bank of the United States, with authority, power and capacity, among other things, to have, purchase, receive, possess, enjoy and retain, to them and their successors, lands, rents, tenements, hereditaments, goods, chattels and effects, of whatsoever kind, nature and quality, to an amount not exceeding in the whole fifty-five millions of dollars, to deal and trade in bills of exchange, gold and silver bullion, and to take at the rate of six per centum per annum for or upon its loans or discounts, and to issue bills or notes signed by the president, and countersigned by the prin- cipal cashier or treasurer thereof, promising the payment of money to any person or persons, his, her, or their order, or to bearer. And that under and by virtue of the power and authority given to the said directors by the said act of Congress, an ofiice of discount and deposit of the said corporation was, at the time hereinafter mentioned, regularly and duly established in pursu- ance of the power contained in the said act, at the city of Baltimore, in the State of Maryland aforesaid, and that George Williams, late of the city of Baltimore, merchant, was at the time hereinafter mentioned, and before and afterwards one of the directors of the said bank of the United States at Philadelphia, to wit, at the city of Baltimore aforesaid, and that James A. Buchanan, late of the city of Baltimore, merchant, was at the time herein- after mentioned, and before and since, president of the said oflSce of dis- count and deposit of the said Bank of the United States, in the city of Baltimore, and James W. M'CuUoh, late of the city of Baltimore, gen- tleman, was at the time hereinafter mentioned, and before and afterwards cashier of the said oflSce of discount and deposit of the said Bank of the United States in the city of Baltimore, to wit", at the city of Baltimore afore- said. And that the said George Williams, so being one of the directors of the said Bank of the United States, and the said James A. Buchanan, so being president of the said oflSce of discount and deposit of the said bank in the city of Baltimore, and the said James W. M'Culloh, so being cashier of the said office of discount and deposit of the said bank in the city of Baltimore, being evil disposed and dishonest persons, and wickedly devising, contriving and intending, falsely, unlawfully, fraudulently, craftily and unjustly, and by indirect means, to cheat and impoverish the said president, directors and company, of the Bank of the United States, and to defraud them of their monies funds and promissory notes for the payment of money, commonly 599 Peecedents of Foems. called bank notes, and of their honest and fair gains to be derived under and pursuant to the said act of Congress from the use of their said monies, funds and promissory notes for the payment of money, commonly called bank notes, on the eighth day of May, in the year of our Lord one thousand eight himdred and nineteen, at the city of Baltimore aforesaid, with force and arms, etc., did wickedly, falsely, fraudulently and unlawfully conspire, combine, con- federate and agree together, by wrongful and indirect means, to cheat, defraud and impoverish the said president, directors and company of the Bank of the United States, and by subtle fraudulent and indirect means, and divers artful, unlawful and dishonest devices and practices, to obtain and embezzle a. large amount of money, and promissory notes for the payment of money, commonly called bank notes, to wit, of the amount and value of fifteen hundred thousand dollars current money of the United States, the same being then and there the property, and part of the proper funds of the said president, directors and company, of the Bank of the United States, from and out of the said office of discount and deposit of the said bank in the city of Baltimore, with- out the knowledge, privity or consent of the said president, directors and company, of the Bank of the United States, and also without the privity, consent or knowledge of the directors of the said office of discount and deposit of the said bank in the city of Baltimore for the purpose of having and enjoy- ing the xise thereof for a long space of time, to wit, for the space of two months, without paying any interest, discount or equivalent, for the use thereof, and without securing the repayment thereof to the said corporation. And the more effectually and securely to perpetrate and conceal the same, that the said James W. M'Oulloh should, from time to time, falsely and fraudu- lently state, allege and represent, to the said directors of the said office of discount and deposit in the city of Baltimore, that such monies and promis- sory notes, so agreed to be obtained and embezzled as aforesaid, were loaned on good, sufficient and ample security, in capital stock of the said bank, pledged and deposited therefor; and also should, from time to time, make and fabricate false statements and vouchers respecting the same, and other property and funds of the said corporation, to be laid before and exhibited to the said directors of the said office of discount and deposit of the said bank in the city of Baltimore. And that the said George Williams, James A. Buchanan, and James W. M'Culloh, being such officers of the said corporation as afore- said, did then and there, in pursuance of and according to the said unlawful, false and wicked conspiracy and confederacy, combination and agreement aforesaid, by indirect, subtle, wrongful, fraudulent and unlawful means, and by divers artful and dishonest devices and practices, and without the knowl- edge, privity or consent of the said president, directors and company, of the Bank of the United States, and without the privity, knowledge or consent of the directors of the said office of discount and deposit of the said bank in the city of Baltimore, obtain and embezzle a large amount of monies, and of promissory notes for the payment of money, commonly called bank notes, the same being the property and part of the proper funds of the said corporation,. 000 Peecedents of Fokms. from and out of their said office of discount and deposit in the city of Baltimore, to wit, of the amount and value of fifteen hundred thousand dol- lars current money of the United States, for the purpose of having and enjoy- ing the use thereof, and did have and enjoy the use thereby, for a long space of time, to wit, for the space of two months, without paying interest, dis- qpunt or equivalent therefor, and without securing the repayment of the said monies, and the said promissory notes for the payment of money commonly called bank notes; and did then and there falsely, craftily, deceitfully, fraud- ulently, wrongfully and unlawfully keep and convert the same to their own use and benefit, without the knowledge, privity or consent of the said cor- poration, and without the knowledge, privity or consent of the directors of the said office of discount and deposit in the city of Baltimore, and did then and there, the more effectually to perpetrate and conceal the said conspiracy, confederacy, fraud and embezzlement, cause and procure false and fraudulent representations, allegations, statements and vouchers, to be made and fabri- cated, and the same to be exhibited to and laid before the directors of the said office of discount and deposit in the city of Baltimore, by the said James W. M'CuUoh, as cashier of the said office of discount and deposit, respecting the said monies, and the said promissory notes for the payment' of money so obtained and embezzled as aforesaid, in which said representations, allegations, statements and vouchers, it was then and there falsely and fraudulently repre- sented, alleged and exhibited, that the said monies, and promissory notes for the payment of money, were loaned on good, sufficient and ample security, in capital stock of the said bank, pledged and deposited therefor, when in truth and in fact no capital stock of the said bank and no other security was pledged or deposited therefor, as the said George Williams, James A. Buchanan and James W. M'Culloh then and there well knew. And that the said false, wicked, unlawful and fraudulent conspiracy, confederacy and agreement above mentioned, and the said false, wicked, unlawful and fraudulent acts done in pursuance thereof, above set forth, were then and there made, done and perpetrated, by the said George Williams, James A. Buchanan and James W. M'Culloh, in abuse and violation of their duty, and the trust reposed in them and the oaths taken and lawfully sworn by them respectively as such officers of the said corporation as aforesaid. And that the said George Williams, James A. Buchanan and James W. M'Culloh did then and there thereby falsely, wickedly, fraudulently, wrongfully and unlawfully impoverish, cheat and defraud the said president, directors and company of the bank of the United Stetes, to the great damage of the said president, directors and com- pany to the evil example of all others in like manner offending and against the peace, government and dignity of the State of Maryland, etc. And the jurors aforesaid, on their oath aforesaid, do further present, that the said George Williams, so being one of the directors of the said Bank of the United Stltes at Philadelphia, to wit, at Baltimore aforesaid, and the said James A Buchanan, so being president of the said office of discount and deposit of the said bank in the city of Baltimore, and the said James W. M'Culloh, so GOl Precedents of Foems, being cashier of the said office of discount and deposit of the said bank in the city of Baltimore, being evil disposed and dishonest persons, and wickedly devising and contriving, and intending, falsely, unlawfully, fraudulently, craftily and unjustly, and by direct means, to cheat and impoverish the said president, directors and company of the Bank of the United States, to defraud them of their monies, funds and promissory notes for the payment of money, commonly called bank notes, and of their honest and fair gains to be derived under and pursuant to the said act of Congress, from the use of their said monies, funds and promissory notes for the payment of money, commonly called bank notes, afterwards, to wit, on the eighth day of May, in the year of our Lord one thousand eight hundred and nineteen, at the city of Balti- more, aforesaid, with force and arms, etc., did wickedly, falsely, fraudulently and unlawfully conspire, combine, confederate and agree together, by wrongful and indirect means, to cheat, defraud and impoverish the said president, directors and company of the Bank of the United States, and by subtle fraudu- lent and indirect means and divers artful, unlawful and dishonest devices and practices, to obtain and embezzle a large amount of money, and of promissory notes for the payment of money, commonly called bank notes, to wit, of the amount and value of fifteen hundred thousand dollars current money of the United States, the same being then and there the property and part of the proper funds of the said president, directors and company of the Bank of the United States of and out of the said office of discount and deposit of the said bank in the city of Baltimore, without the knowledge, privity or consent of the said president, directors and company of the Bank of the United States, and also without the privity, consent or knowledge of the directors of the said office of discount and deposit of the said bank in the city of Baltimore, for the purpose of having and enjoying the use thereof for a long space of time, to wit, for the space of two months, without paying any interest, discount or equivalent for the use thereof, and without securing the repayment thereof to the said corporation. And that the said false, wicked, unlawful and fraudulent conspiracy, con- federacy and agreement, above mentioned, were then and there made, done and perpetrated by the said Greorge Williams, James A. Buchanan and James W. M'CuUoh, in abuse and violation of their duty, and the trust reported in them, and the oaths taken and lawfully sworn by them respectively as such officers of said corporation as aforesaid, to the great damage of the said president, directors and company, to the evil example of all others in lik« manner offending, and against the peace, government and dignity of the State of Maryland, etc. LUTHER MARTIN, Attorney-General of Maryland and District Attorney of Baltimore City Court.w [30. The State v. Buchanan, 6 Har. & J. (Md.) 317, 318. Fonn naed i« this case in indicting for conspiracy to defraud a bank.] 602 Peecedents of Foems. FORM 29, Conspiracy. Bkbgen Otee and Teeminee and General Jail Dhxivebt, Deceubek Tebu, A. D. 1854 — Bergen County, To Wit: The grand inquest of the State of New Jersey in and for the body of the county of Bergen, upon their oaths present, that Susan Ann Smith, Albert Smith, Maria Smith, Joel M. Johnson and Richard Van Winkle, late of the township of Franklin, in the said county of Bergen, wickedly devising and intending one William W. Packer, not only of his credit and good name unjustly to deprive, but also to obtain and acquire to themselves of and from the said W. W. P. divers sums of money, and large amounts of property and other valuable things, on the fifth day of October, in the year one thousand eight hundred and fifty-four, with force and arms, at the township aforesaid, in the county aforesaid, and within the jurisdiction of this court, did amongst themselves unlawfully conspire, combine, confederate and agree to extort, obtain and procure of and from the said W. W. P. large sums of money, and a large amount of property, and security for a large sum of money, for their own use; and in order to extort, obtain and procure the same, did corruptly and unlaAvfuIly conspire and agree together falsely to charge, and cause to have falsely charged the said W. W. P., before one of the justices of the peace of the said county, on and by the oath of the said Susan Ann Smith, with having got the said S. A. S., she then being a, single woman, with child of a bastard, and to procure the issuing of a warrant thereupon by such jus- tice of the peace for the arrest of the said W. W. P., and when the said W. W. P. should be so arrested and under duress of imprisonment, to extort, obtain and procure from the said W. W. P. said money, property and security for money for their use, by offering to receive the same for the suppression and compromise of the said charge, and for the liberation of said W. W. P. from arrest and imprisonment under such warrant. And the jurors aforesaid, upon their oath aforesaid, say that the said S. A. S., A. S., J. M. J., M. S. and R. v. W., the defendants, in furtherance of their conspiracy, afterwards, to wit, on the day and year aforesaid, at the township and in the county afore- said, did, before one James V. Jeralemon, then being one of the justices of the peace in and for the said county, falsely charge, and cause and procure the said S. A. S., upon and by her oath, falsely to charge that the said W. W. P. was the father of the bastard of which she then alleged herself to be with child, and which she then alleged was to be born a bastard, and chargeable upon the township of Franklin, in the said county, and that upon the said charge the said defendants procured a warrant to be issued by the said J. V. J., justice of the peace as aforesaid, by virtue of which said warrant the said defendants afterwards arrested, and caused and procured to be arrested, the body of the said W. W. P., and him held in custody, and while so under arrest 603 Peecedents of Foems. and in custody then and there did unlawfully, wilfully and deceitfully endeavor to obtain, extort and procure of and from the said W. W. P. a large sum of money, security for a large sum of money, and property aiid things of great value, as and for a consideration or recompense to them for compromising and suppressing said charge, giving up the further prosecution thereof, and releas- ing the said W. W. P., and then and there the said defendants did unlawfully, wilfully and fraudulently obtain, extort and procure from the said W. W. P. and cause him to make, execute and deliver a bond or obligation, under the hand and seal of the said W. W. P. bearing date the fifth day of October, in the year last aforesaid, to the said A. S. in the penal sum of two thousand dollars, upon condition that the said W. W. P. should pay to the said A. S. on the first day of May next ensuing the date thereof, the sum of one thou- sand dollars, also, a certain mortgage, dated the day and year last aforesaid, executed and given by the said W. W. P. on lands of him, the said W. W. P., situate in the township of Franklin aforesaid, to the said A. S. to secure the payment of the said bond, which bond and mortgage were given as the con- sideration or price for suppressing and compromising said charge, and re- leasing said W. W. P. from arrest; that the said bond and mortgage were taken and received by the said defendants from the said W. W. P. for their use to the great perversion and obstruction of justice and the due administra- tion of the laws, to the evil example of all others in like cases offending, contrary to the form of the statute in such case made and provided, and! against the peace of this State, the government and dignity of the same. And the jurors aforesaid, upon their oaths aforesaid, do further present, that the said defendants, on the fifth of October, in the year eighteen hundred and fifty-four, with force and arms aforesaid, at the county aforesaid, and within the jurisdiction aforesaid, wickedly intending to extort, obtain and procure of and from the said W. W. P. a large sum of money, property of great value, and securities for the payment of a large sum of money for their use, and in order to extort, obtain and procure the same, did corruptly, unlawfully and falsely conspire and agree to charge, and caused to be charged the said W. W. P. on and by the oath of the said S. A. S., to be taken and sworn, by the said S'. A. S., before one of the justices of the peace of said co\mty,_ with having got the said S. A. S. with child of a bastard, which would, when bom, be chargeable on the said township of Franklin as a pauper, and to cause aad procure the arrest of the said W. W. P. and' thereby to put the said W. W. P. in constraint and in fear of public infamy and disgrace, and of liability to secure and indemnify the said township of Franklin from the support of such bastard child when bom, and to extort, obtain and procure from the said W. W. P. the said sum of money, property and security for mpney, for their use by offering to receive the same as a consideration or price for the suppression of the said charge, and liberating him from arrest, and indemnifying the said W. W. P. from the pretended liability for the support of such bastard when bom. That the said defendants, in furtherance of their said conspiracy after- 604 Peecedents of Foems. wards, to wit, on the day and year last aforesaid, at the township, in the county, ajid within the jurisdiction aforesaid, did falsely, corruptly and wil- fully present, and caused and procured to be presented', to one J. V. J., then being one of the justices of the peace in and for said county a certain writ- ing purporting to be the voluntary examination of the said S. A. S. taken on the oath of the said S. A. S. before the said justice of the peace, by which writing it was charged and declared that the said S. A. S. was then with child, and that the said child was likely to be bom a bastard, and to be chargeable to the said township of Franklin, and that the said W. W. P. was the father of the said child, and the said defendants falsely and cor- ruptly caused and procured the said S. A. S. to make oath before the said justice of the peace that the statements and charge in the said writing were true, that the said defendants then and there procured a warrant to be issued by the said justice of the peace for the arrest of the said W. W. P. and put into the hands of said defendants, under and by virtue of which said war- rant the said defendants afterwards, to wit, on the day and year last afore- said, arrested, and caused and procured to be arrested the body of the said W. W. P. and him there held in custody, and while so tmder arrest and in custody, then and there did unlawfully, wilfully and deceitfully endeavor to obtain, extort and procure from the said W. W. P. a large sum of money, property of great value, and securities for the payment of a large sum of money, as and for a consideration or recompense to them for the compromis- ing and suppression of the said charge, saving him, the said W. W. P., from any public disrepute, liberating him from custody under said warrant and indemnifying him, from any liability for the support of said bastard child when born, and the said defendants then and there did imlawfully, wilfully and fraudulently did obtain, extort and procure from the said W. W. P. and cause him, the said W. W. P., to make, execute and deliver to the said A. S. a certain bond or writing obligatory under the hand and seal of the said W. W. P., dated the fifth day of October, in the year last aforesaid, by which the said W. W. P. bound himself to the said' A. S. in the penal sum of two thousand dollars, the said bond by virtue of a condition thereunto written, to be void if said W. W. P. should pay to the said A. S. on the first day of May next ensuing the date thereof, the sum of one thousand dollars and also a certain mortgage of the same date, given by the said W. W. P. upon land and real estate of the said W. W. P., situate in the said township of Franklin, to secure to the said A. S. payment of the sum of money mentioned in the condi- tions of the said bond, which said bond and mortgage were given to the said A. S. by the said W. W. P. as a composition of and an agreement to suppress the said charge, saving the said W. W. P. from public scandal and disrepute, liberat- ing him. from custody under said warrant, and indemnifying him from the said pretended liability, and that the said bond and mortgage were taken and received by the said defendants for the use and benefit of said defendants, to the perversion and obstruction of justice and the due administration of the laws, to the evil example of all others in like cases oflFending, contrary 605 Peecedents of Foems. to the form of the statute in such case made and provided, and against the peace of this State, the government and dignity of the same.si [31. Johnson v. Smith, 26 N. J. L. 313, 314. Form used in this case for indicting for conspiracy to falsely charge the commission of an offense and to procure the accused's arrest and to extort money by offering to compromise and settle the charge. It was held that if the indictment charge that the defendants falsely conspired it is not necessary to aver the innocence of the party against whom the conspiracy is found, or that he was falsely charged.] FORM 30. Conspiracy. COTTBfTT COTIBT — ^EbIE COUffTY. The People of the State of New York against Anton .J. Wiechers and Franklin S. Temple. The grand jury of the county of Erie by this indictment accuse Anton .J. Wiechers and Franklin S. Temple of the crime of conspiracy, committed as follows, to wit: That heretofore and prior to the finding of this indictment, and on the 20th day of October, in the year of our Lord one thousand nine hundred and two, at the city of Buffalo, in the county of Erie aforesaid, the said Anton J. Wiechers and Franklin S. Temple, and each of them, with force and arms and with intent to cheat and defraud and obtain money and other property from the person and persons hereinafter named or mentioned and from divers citizens of the county of Erie, and the public generally, whose names are to the grand jury aforesaid unknown, and the further particulars whereof cannot therefore now be given, and with and by color and aid Oi certain false and fraudulent representations and pretenses hereinafter named and recited, did wilfully, maliciously and feloniously and wrongfully con- spire, combine and confederate and agree together to obtain from the posses- sion of said person and persons hereinafter named or mentioned, and from the said divers citizens of the county of Erie, and the said public generally, the money and other property in kind and amounts hereinafter specified, and in further kinds and amounts to the grand jury aforesaid unknown, the par- ticulars whereof cannot therefore now be given, of the goods, chattels, and personal property of the said person, persons, citizens and public generally, the true owner and owners thereof, of their said property and to appropriate the same to the use of the said Anton J. Wiechers and Franklin S. Temple, and to each of them, and that thereupon and heretofore and upon the afore- said day and the said Anton J. Wiechers and Franklin S. Temple, and each of them, in furtherance of said unlawful, malicious and fraudulent conspiracy and agreement and with Intent to cheat and defraud and obtain money and other property, as aforesaid, did then and there feloniously, falsely and fraud- ulently pretend and represent in, through and by means of the public press 606 Peecedents of Foems. and certain newspapers published in the city of Buffalo, aforesaid, and in and through and by means of certain advertisements and printed matter, caused to be printed and published in said newspapers by the said Anton J. Wiechera and Franklin S. Temple, and in divers other ways, that a. certain individual known by and under the name of " Antonius " and as " Antonius, the boy phenomenon,'' possessed a marvelous power in healing the sick and afflicted and stood peerless and alone the greatest magnetist of modern times, with a present ability and power to cure the deaf, blind, lame and all forms of paralysis, epilepsy, dropsy, diabetes and Bright's disease, and all other bodily afflictions, and that he possessed the power to heal the sick and afflicted by means of certain magnetism contained in his body, and that the said Anton J. Wiechers and Franklin S. Temple, and each of them, in furtherance of the said unlawful, malicious and fraudulent conspiracy and agreement, and with intent to cheat and defraud and obtain money and other property, as afore- said, did then and there wilfully, maliciously and feloniously conspire, com- bine, confederate and agree together that the said Anton J. Wiechers and Franklin S. Temple, and each of them, should falsely and fraudulently pre- tend and represent to the said person and persons, and the said divers citizens of the county of Erie, and the said public generally, that the said Anton J. Wiechers and Franklin S. Temple, and each of them, was the same certain individual known by and under the name of " Antonius " and as " Antonius, the boy phenomenon," mentioned and described and possessing the powers as set forth in, through and by means of the public press and certain newspapers published in the city of Buffalo aforesaid, and in, through and by means of certain advertisements and printed matter, cause to be printed and published in said newspapers by said Anton J. Wiechers and Franklin S. Temple, and in divers other ways, as hereinbefore set forth, that they, the said Anton J. Wiechers and Franklin S. Temple, and each of them, falsely pretending and representing himself, to be the individual " Antonius " and " Antonius, the boy phenomenon " as aforesaid, should practice medicine and assume and attempt to exercise the powers of healing and curing ascribed to the said " Antonius " and " Antonius, the boy phenomenon," as aforesaid, in and upon the person, persons, divers citizens of the county of Erie, and the public generally, herein- before mentioned. That thereupon and heretofore and upon the aforesaid day, the said Anton J. Wiechers and Franklin S. Temple, and each of them, in furtherance of the said unlawful, malicious and fraudulent conspiracy and agreement, and with intent to cheat and defraud and obtain money and other property, as aforesaid, did then and there falsely and fraudulently pretend and represent to the said person and persons, and the said divers citizens of the county of Erie, and the said public generally, that the said Anton J. Wiechers and Franklin S. Temple, and each of them, was the same certain individual known by and under the ■ame of "Antonius" and as "Antonius, the boy phenomenon," mentioned and described and possessing the powers as set forth in, through and by means of ihe public press and certain newspapers published in the city of Buffalo afore- 607 Peecedents of Foems. said, and in, through and by means of certain advertisements and printed matter caused to be printed and published in said newspapers by said Anton J. Wiechers and Franklin S. Temple, and in divers other ways, as hereinbefore set forth, and that they, the said Anton J. Wiechers and Franklin S. Temple, and each of them, falsely pretending and representing himself to be the indi- vidual " Antonius '' and Antonius, the boy phenomenon," as aforesaid, did then and there practice medicine and assume and attempt to exercise the powers of healing and curing ascribed to the said " Antonius " and " Antonius, the boy phenomenon," as aforesaid, in and upon the person, persons, divers citizens of the county of Erie, and the public generally, hereinbefore mentioned; and that in particular the said Franklin S. Temple, conspiring and falsely and fraudulently pretending and representing as aforesaid, did examine, treat, practice medicine upon and prescribe for one Ethel Mackey, who then and there was suffering from some disease to the grand jury aforesaid unknown, affecting one of her knees, and the said Franklin S. Temple did then and there falsely and fraudulently represent to the father and mother of the said Ethel Mackey that he, the said Franklin S. Temple, was the individual " Antonius " and " Antonius, the boy phenomenon,'' as hereinbefore mentioned and de- scribed, and that he had cured many cases of the same kind and could cure the said Ethel Mackey of the said disease and would so cure her, upon the payment of the sum of two dollars for an examination and of twenty-eight dollars in addition thereto for home and personal treatments, and thereafter, upon the said day, the said Franklin S. Temple falsely, by pretending and representing as aforesaid, did wrongfully and maliciously undertake to cure and treat and practice medicine upon and prescribe for the said Ethel Mackey, and did give to the father and mother of the said Ethel Mackey medicines, with directions for the use of the same, and did, by means of such false, fraudulent and malicious pretenses and representations, obtain from Francis J. Mackey the sum of thirty dollars in lawful money of the United States, well knowing at the time that he obtained and received said money that he was not the individual " Antonious " and " Antonius, the boy phenomenon," and that the treatment and medicines prescribed and given by him for said Ethel Mackey would be ineffectual, and well knowing at the time that he could not effect a cure of the said disease. Whereas, in truth and in fact the said individual known by and under the name of " Antonius " and as " Antonius, the boy phenomenon," did not possess a marvelous power in healing the sick and afflicted and did not stand peerless and alone the greatest magnetist of modern times and did not have a present ability and power to cure the deaf, blind, lame and all forms of paralysis, epilepsy, dropsy, diabetes and Bright's disease, and all other bodily afflictions, and did not possess power to heal the sick and afflicted by means of certain magnetism contained in his body, and, whereas, in truth and in fact, the said Anton J. Wiechers and Franklin S. Temple, and each of them, was not the individual known by and under the name of " Antonius " and as " Antonius, the boy phenomenon," mentioned and described as possessing the powers set forth 608 Peecedents of Foems. in, through, by means of the public press and certain newspapers published in the city of Buffalo aforesaid, and in, through and by means of certain ad- vertisements and printed matter caused to be printed and published in said newspapers by said Anton J. Wieehers and Franklin S. Temple, and in divers other ways, as hereinbefore set forth, and, whereas, in truth and in fact, the said Anton J. Wieehers and Franklin S. Temple, and each of them, did not possess a marvelous power in healing the sick and afflicted and did not stand peerless and alone the greatest magnetist of modern times and did not have present ability and power to cure the deaf, blind, lame and all forms of paralysis, epilepsy, dropsy, diabetes, and Bright's disease, and all other bodily ailments and did not possess the power to heal the sick and afflicted, by means of certain magnetism contained in his body, all of which was well known to the said Anton J. Wieehers and Franklin S. Temple. And theretofore, and because of the said conspiracy, combination, confed- eracy, and agreement of the said Anton J. Wieehers and Franklin S. Temple and the acts committed thereunder and in furtherance thereof, as hereinbefore set forth, the grand jury do, upon their oath, by this indictment accuse the said Anton J. Wieehers and Franklin S. Temple of the crime of conspiracy, contrary to the form of the statute in such case made and provided and against the peace of the people of the State of New York and their dignity. EDWARD E. COATSWORTH, District Attorney of Erie County .32 [32. In People v. Wieehers, 179 N. Y. 459, a judgment of conviction on the above indictment was affirmed. On the appeal the defendant sought to attack the indictment upon the ground that the representations set forth therein did not refer to any existing fact capable of proof, but only to the belief of the de- fendants that they, or the mythical boy "Antonius," whom they personated, pos- sessed certain magnetism sufficient to cure all bodily afflictions. The court held that an accused person who has omitted to question an indictment, either by de- murrer before the trial, or by objecting thereto during the trial or by a motion in arrest of judgment made after the trial, cannot attack it for the first time on appeal unless it is by an argument addressed to the discretion of the court hearing the appeal in the first instance, and that that discretion does not be- long to the Court of Appeals except in capital cases.] FORM 31. Conspiracy. BoBOUGH, Town and County of the Town of Southampton: The jurors for our Lady the Queen, upon their oath and affirmation pre- sent, that Mary Ann Mears, late of the pariah of Saint Mary, in the town and county of the town aforesaid, single woman, being a person of wicked and depraved mind and disposition, and contriving, and craftily, and deceit- fully intending to debauch and corrupt the morals of one Johanna CSarroU, 609 39 Peecedents of Foems. as hereafter mentioned, and to seduce her into an infamous and wicked course of life, heretofore and after the paSsing of a certain act of Parliament for the better preventing the heinous offense of procuring the dtefiling of women, to wit, on the 14th day of November, A. D. 1850, with force and arms, at the parish aforesaid, in the town and county aforesaid, did know- ingly, deceitfully and unlawfully attempt and endeavor, as much as in her lay, to procure the said Johanna Carroll, the said Johanna Carroll then and there being a child under the age of twenty-one years, to wit, the age of fifteen years, an orphan and a servant out of place, to have illicit carnal connection with a man, to wit, a certain man whose name is to the jurors aforesaid unknown, by then and there knowingly and unlawfully falsely and fraudulently pretending and representing to the said Johanna Carroll, that she, the said Mary Atiti Hears, was the friend of the said Johanna Carroll, and knew her father and mother, and that if she, the said Johanna Carroll, would go home with her, the said Mary Ann Mears, the said Mary Atiti Mears would keep her until she, the said Johanna Carroll, could get a place, and that she, the said Mary Ann Mears, would herself try all she could to get her a place, and by then and there, under such false and fraudulent pretenses and representations, taking her, the said Johanna Carroll, to the house of the said Mary Ann Mears, and keeping her there for a long space of time, and soliciting her and trying to induce her then and there to have illicit carnal connection with the said man, whereas in truth and in fact the said Mary Ann Mears was not the friend of the said Johanna Carroll, and the said Mary Ann Means did not intend to take, and did not take, the said Johanna Carroll home with her to keep the said Johanna Carroll till she, the said Johanna Carroll, could get a place, or till she, the said Mary Ann Mears, could obtain a place for her, but craftily and subtilly with the wicked design and purpose, by the said false and fraudu- lent pretenses, representations and means aforesaid, to procure the said Johanna Carroll to have connection with a man as aforesaid, contrary to the form of the statute in such case made and provided, and against the peace of our Iiady the Queen, her crown and dignity. And the jurors aforesaid, upon their oath and affirmation aforesaid, do further present, that Amelia Chalk, late of the parish aforesaid, in the town and county aforesaid, laborer, at the time of the committing of the said misdemeanor, by the said Mary Ann Mears, as aforesaid', to wit, on the day and year aforesaid, at the parish aforesaid, at the town and county aforesaid, the said Mary Ann Mears, to do and commit the said misdemeanor wickedly, knowingly and imlawfully did abet and assist, contrary to the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. That the said Mary Ann Mears and Amelia Chalk after- wards, to wit, on the day and year last aforesaid, with force and arms, at the parish aforesaid, in the town and county aforesaid, wickedly, designedly and unlawfully did attempt and endeavor, by false pretenses, false representa- tions, and other fraudulent means, to procure the said Johanna Carroll, then 610 Pkecedents op Foems. being a child under the age of twenty-one years, to wit, of the age of fifteen years, to have illicit carnal connection with a. man, to wit, a certain man whose name is to the jurors aforesaid unknown, contrary to the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. That the said Mary Ann Mears and the said Amelia Chalk, afterwards, to wit, on the day and year aforesaid, with force and arms at the parish aforesaid, in the town and county aforesaid, did between themselves conspire, combine, confederate and agree together wickedly, knowingly and designedly to procure by false pretenses, false representations and other fraudulent means, the said Johanna Carroll, then being a poor child under the age of twenty-one years, to wit, of the age of fifteen years, to have illicit carnal connection with a man, to wit, a certain man whose name is to the jurors aforesaid unknown, contrary to the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity .33 [33. Eeg. V. Mary Ann Mears and Amelia Chalk, 4 Cox Cr. Cas. 423. Form given for indicting for conspiracy to procure prostitution by false pretenses. I FORM 32. Connterfeiting. State of Illinois, Ojok County, ss.: The grand jurors chosen, selected and sworn, in and for the county of Cook, in the name and by the authority of the people of the State of Illinois, upon their oaths present, that John B. Miller, late of said county, on the first day of December, in the year of our Lord one thousand eight hundred and thirty- seven, in the county aforesaid, one press for coinage, made of iron, other- wise called a bogus press; one edging tool, made of iron and steel, adapted and intended for the working of coin round the edge with grainings, appar- ently resembling those on the edges of coin then and now current in the State aforesaid, to wit, Mexican dollars; one die, made of steel, in and upon which then and there were made and impressed the figure, resemblance and similitude of one of the sides, to wit, the eagle side of the coin then and now current within the State aforesaid, to wit, a Mexican dollar; one other die, made of steel, in and upon which then and there were made and impressed the figure, resemblance and similitude, to wit, the reverse of the eagle side of the coin then and now current within the State of Illinois, called a Mexican dollar; two crucibles made of clay and sand, made use of in counterfeiting the coin then and now current within the State aforesaid, to wit, Mexican dollars, without lawful excuse; then and there knowingly had in his posses- sion, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the same people of the State of Illinois. 611 Peecedejtts of Foems. And the same grand jurors, chosen, selected and sworn, in and for the comity aforesaid, in the name and by the authority aforesaid, upon their oaths aforesaid, do further present, that John B. Miller, late of said county, on the first day of December, in the year of our Lord one thousand eight hundred and thirty-seven, in the county aforesaid, one press for coinage, made of iron, one edging tool, made of iron and steel, adapted and intended for the working of coin round the edges, with grainings, apparently resem- bling those on the edges of coin then and now current within the State afore- said, to wit, Mexican dollars; one die, made of steel in and upon which then and there were made and impressed the figure, resemblance and similitude of one of the sides, to wit, the eagle side of the coin then and now current within the State aforesaid, to wit, Mexican dollars; one other die, made of steel in and upon which then and there were made and impressed the figure resemblance and similitude of one of the sides, to wit, the reverse of the eagle side of the coin then and now current within the State of Illinois, called Mexican dollars; two crucibles, made of sand and clay, made use of in counterfeiting the coin then and now current within the State aforesaid, called Mexican dollars, then and there knowingly and unlawfully had in his custody and possession, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the same people of the State of Illinois. HUNTINGTON, State Attorney .3* [34. Miller v. The People, 3 111. 233. Form used in this case for indict- ment for having in possession instruments used in counterfeiting coin. It was held that the allegations were sufficiently descriptive of the offense and in conformity to the definition of the crime in the Criminal Code.] FORM 33. Disorderly House— Keeping of. DisTEicT OF Columbia, Washington County, To Wit: The jurors of the United States for the county aforesaid, upon their oatk present, that Charles Columbus, late of the county aforesaid, yeoman, on the fifteenth day of December, in the year of our Lord eighteen hundred and thirty- six, at Washington county aforesaid, and on other days and times between that day and the day of taking this inquisition, with force and arms, kept a certain unlawful, disorderly and ill-governed house in the city of Washington, in the said county, as a common tavern, without any lawful authority or license therefor, did take upon himself to keep and maintain ; and the said house did then and there, at the days and times aforesaid, keep as a common tippling- house : and did therein openly sell spirituous liquors to all persons calling for 612 Precedents of Foems. the same, and allow the same to be drunk by such persons, in and about his said house at all times both at day and night, and on all days, both Sundays and other days; and did permit certain idle and ill-disposed persons to the jurors aforesaid unknown, to assemble together in his said house, and then and there continue drinking and tippling, to the common nuisance of the good people of the United States, to the evil example of all others, the corruption of the public morals and against the peace and government of the United States. F. S. KEY, United States Attorney, District Columbia.35 [35. United States v. Columbus, 5 Cranch C. C. 304.] FORM 34. Disorderly House— Keeping of. GabiaAnd County Cikcuit Couet: The State of Arkansas against H. A. Ballentine and Henry Thatcher- Indictment. The grand jury of Garland county, in the name and by the authority of the State of Arkansas, accuse H. A. Ballentine and Henry Thatcher of the crime of keeping a disorderly house, committed as follows: The said H. A. Ballen- tine and Henry Thatcher, on the 15th day of March, 1886, in the county and State aforesaid, and on divers other days and times between that day and the day of the presentation of this indictment, a, certain, common, ill-governed and disorderly house, unlawfully; did keep and maintain, and, in said house, for their own gain and lucre, certain evil-disposed persons, as well men as women, of evil name, fame and conversation, to come together, on the days and times aforesaid, there unlawfully and willfully did cause and procure; and the said persons in the said house, at unlawful times, as well in the night as the day, on the days and times aforesaid, there to be and remain drinking, tippling, cursing, swearing, quarreling, gambling, whoring and otherwise mis- behaving themselves, unlawfully did permit and suffer, to the great injury and common nuisance of all the peaceable citizens of the State, there residing, inhabiting and passing; to the evil example of all others in the like case offending, to the great injury of public morals, the perversion of public jus- tice, and against the peace and dignity of the State of Arkansas. J. P. HENDERSON, Prosecuting Attorney.se [36. Thatcher v. State, 48 Ark. 60, 62.] 613 Peecedents of Foems. FORM 35. Disorderly Sonae— Keepine of. STATE OF New HAMPSHIEE, HiLIfiBOEOUOH, SB. : At the trial term of the Supreme Judicial Court, holden at Amherst, within and for the county of Hillsborough aforesaid, on the first Tuesday of Septem- ber, in the year of our Lord one thousand eight hundred and sixty : The grand jurors for the State of New Hampshire, upon their oath present, that James M'Gregor, of Manchester, in the said county of Hillsborough, ou the first day of January, in the year of our Lord one thousand eight hundred and sixty, at Manchester aforesaid, in the county aforesaid, and on divers other days and times between that day and the twenty-second day of June, now last past, a certain common, ill-governed and disorderly house then and there unlawfully did keep and maintain, and in the said house, for his own lucre and gain, certain persons, as well men as women, of evil name, fame and conversation, to come together on the days and times aforesaid, there unlaw- fully and wilfully did cause and procure, and the said persons, in the said house, at unlawful times, as well in the night as in the day, on the days and time aforesaid, there to be and remain drinking, whoring and otherwise misbe- having themselves, unlawfully did permit and still doth permit, to the great damage and common nuisance of all the peaceable citizens of said State there residing, inhabiting and passing, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State. A. F. STEVENS, Solicitor.37 [37. Stat« v. M'Gregor, 41 N. H. 407, 409.] FORM 36. Disorderly House— Keeping of. State of Noeth Cabouna, Geeene County — Supeeiob Coxjbt of Law, Fall Teem, 1864. The jurors for the State, upon their oath present, that John Patterson, late of the county of Green, on the 1st day of August, 1845, and on divers other days and times between that day and the day of the taking of this inquisition, with force and arms, at and in the county aforesaid, did keep and maintain a certain common ill-governed and disorderly house, and, in his said house, for his own lucre and gain, certain persons, as well free as slaves, to frequent and come together, then and on the said other days and times, there unlawfully and wilfully did cause and procure, and the said persons in his said house at unlawful times, as well in the night as in the day, then and on the said other days and times, there to be and remain, drinking, tippling and misbehaving 614 Pbecedents of Forms. themselves unlawfully and wilfully did permit, and doth permit, to the great damage and common nuisance of all the citizens of the State there inhabiting, residing and passing, to the evil example of all others in like case offending, and against the peace and dignity of the State.38 [38. State v. Patterson, 7 Ired L. (N. C.) 70.] FORM 37. Embezzlenient. The jurors for the Commonwealth of Massachusetts, on their oath present, that Nathan P. Pratt, late resident of Reading, in the county of Middlesex and Commonwealth aforesaid, on the first day of October, in the year of our Lord one thousanl eight hundred and seventy-eight, was, and for the space of six months next following said first day of October continued to be an officer, to wit, the treasurer, of the Reading Savings Bank, which was then and there an incorporated company duly and legally established, organized and existing as a corporation imder and by virtue of the laws of said Commonwealth, he, the said Nathan P. Pratt, not being during any part of the time aforesaid an apprentice of said Reading Saving Bank, and not being during any part of the time aforesaid a person under the age of sixteen years; and that said Nathan P. Pratt on the first day of October, in the year one thousand eight hundred and seventy-eight, at Reading, aforesaid, in the county aforesaid, did by virtue of his said ofliee as treasurer as aforesaid, and while he continued and was employed in his said office as treasurer as aforesaid, have, receive and take into his possession certain money to a large amount, to wit, to the amount of twenty thousand dollars, and of the value of twenty thousand dol- lars; sundry bank bills amounting in the whole to twenty thousand dollars, and of the value of twenty thousand dollars; sundry bank checks for money, amounting in the whole to twenty thousand dollars, and of the value of twenty thousand dollars; sundry promissory notes, amounting in the whole to twenty thousand dollars, and of the value of twenty thousand dollars; sundry bills ■of exchange, amounting in the whole to twenty thousand dollars, and of the value of twenty thousand dollars; sundry drafts for money, amounting in the whole to twenty thousand dollars, and of the value of twenty thousand dol- lars ; and one hundred pieces of paper, said pieces of paper being securities for money, each of the value of one thousand dollars, all of the goods, property and money of said Reading Savings Bank; and the said money, bank bills, checks, promissory notes, bills of exchange, drafts and pieces of paper, then and there unlawfully, fraudulently and feloniously did embezzle and con- vert to his own use, without the consent of said Reading Savings Bank. Whereby, and by force of the statute in such case made and provided, the said Nathan P. Pratt is deemed to have committed the crime of simple larceny. 615 Peecedents of Foems. And so the jurors aforesaid, upon their oath aforesaid, do say that the said Nathan P. Pratt, on said first day of October, in the year eighteen hundred and seventy-eight, at Reading aforesaid, in manner and form aforesaid, the said money, bank bills, cheeks, promissory notes, bills of exchange, drafts and pieces of paper, the property of said Reading Savings Bank, from the said Reading Savings Bank feloniously did steal, take and carry away, contrary to the form of the statute in such case made and provided. 2. And the jurors aforesaid, on their oath aforesaid, do further present, that the said Nathan P. Pratt, late resident of Reading, in the county of Middlesex aforesaid, on the thirty-first day of October, in the year of our Lord one thousand eight hundred and seventy-eight, at said Reading, in the county of Middlesex aforesaid, being then and there an ofiicer, to wit, the treasurer, of the Reading Savings Bank, the same being then and there an incorporated company duly and legally established, organized and existing by the laws of said Commonwealth, he, the said Nathan P. Pratt, not being then and there an apprentice to the said Reading Savings Bank, nor a person under the age of sixteen years, did then and there, by virtue of his said ofiice and employment as treasurer as aforesaid, have, receive and take into his pos- session a certain paper writing containing a. conveyance of land, the same being then and there a deed of mortgage of certain land situate in said Reading, before then made and executed by David P. Brown to said Reading Savings Bank, and delivered to said Reading Savings Bank by said David P. Brown, and given to secure to said Reading Savings Bank the payment of the sum of two thousand dollars, which said deed of mortgage was then aRraham H. Hummel and Benjamin Stein- hardt, for such use and to influence the said court in its disposition of the said motion, and containing divers allegations and statements of and con- cerning the matters in question upon the said motion, the same being then and there duly signed and subscribed by him, the said Charles F. Dodge, in his own proper handwriting, with his certain signature as follows, to wit, C. F. Dodge, and in due form of law to swear and take his corporal oath by and before the said John J. Cauavan, such commissioner of deeds as afore- said, touching and concerning the truth of the matters so contained in the said aflttdavit and writing, that the said affidavit in writing so subscribed by him as aforesaid was true. And afterwards, to wit, on the 19th day of October, in the year of our Lord one thousand nine hundred three, the said Charles F. Dodge, late of the Borough of Manhattan, of the city of New York, in the county of New York aforesaid, at the borough and county aforesaid, in conse- quence of, and by the means, encouragement and effect of the said wicked, wilful and corrupt subornation and procurement of the said Abraham H. Hummel and Benjamin Steinhardt, did personally go and appear before the said John J. Canavan, then and there being such com- missioner of deeds of the city of New York as aforesaid, duly appointed, quali- fied and acting as such, and did then and there produce and exhibit to the said John J. Canavan, Esquire, such commissioner of deeds as aforesaid, the said affidavit in writing of him, the said Charles F. Dodge, entitled in the said court and action and prepared for use in the said action upon the motion brought on by the order to show cause hereinbelow described, and then and there intended by him, the said Charles F. Dodge, and by them, the said Abraham H. Hummel and Benjamin Steinhardt, for such use and to influ- ence the said court in its disposition of the said motion, and containing divers allegations and statements of and concerning the matters in question upon the said motion, the same being then and there duly signed and sub- scribed by him, the said Charles F. Dodge, in his own proper handwriting with his certain signature as follows, to wit, C. F. Dodge. And the said Charles F. Dodge was then and there in due form of law duly sworn and did' take his corporal oath by and before the said John J. Canavan, such commissioner of deeds as aforesaid, touching and concerning the truth of the matters so contained in the said affidavit and writing that the said affidavit iri writing so subscribed by him as aforesaid was true, he, the said John J. Canavan, such commissioner of deeds as aforesaid, having then and there full and competent power and authority to administer such oath to the said Charles F. Dodge in that behalf. And the said Charles F. Dodge, being so sworn as aforesaid, then and there, to wit, on the said 19th day of October, 1903, at the borough! and county 811 Peecedexts of Foems. aforesaid, before the said John J. Canavan, Esquire, such commissioner of deeds as aforesaid, upon his oath aforesaid, in and by his said affidavit in writing, and of and concerning the material matters aforesaid, in consequence of and by the means, encouragement and effect of the said wicked, wilful and corrupt subornation and procurement of the said Abraham H. Hummel and Benjamin Steinhardt, feloniously, wilfully, knowingly and corruptly did falsely swear, depose and say, among other things, in substance and to the effect following, that is to say: That he, the said Charles F. Dodge, never, directly or indirectly, retained the said Mortimer A. Ruger, or authorized him to appear as his lawyer in the aforesaid action; that he was at no time or place served with the sum- mons in the said action; that a certain affidavit theretofore made by the said William A. Sweetser, to the effect that the said Charles F. Dodge was on the 31st day of March, 1897, served with a summons in the said action by the said William A. Sweetser, was absolutely false; that he, the said Charles F. Dodge, was not at that or any other time served with a summons in the said action; and that he, the said Charles F. Dodge, had never seen or met the said William A. Sweetser. Whereas, in truth and in fact, the said Charles F. Dodge had directly re- tained the said Mortimer A. Kuger as his lawyer and authorized him to ap- pear in the said action, and was served with the summons in the said action on the 31st day of March, 1897, at the Everett House, in the city and county of New York, by the said William A. Sweetser, and the said affidavit thereto- fore made by the said William A. Sweetser, to the effect that he had on the 31st day of March, 1897, served the said Charles F. Dodge with a summons in the said action, was not absolutely false, but was wholly true, and the said Charles F. Dodge had met and seen the said William A. Sweetser, to wit, on the said 31st day of March, one thousand eight hundred and ninety- seven, at the said Everett House in the said city and county of New York, all of which he, the said Charles F. Dodge, then and there, to wit, at the time he so as aforesaid falsely swore, deposed and said, well knew. And whereas, in truth and in fact, at the time the said Abraham H. Hum- mel and Benjamin Steinhardt so as aforesaid solicited, suborned, instigated, induced and procured the said Charles F. Dodge to so personally go and ap- pear before the said John J. Canavan, such commissioner of deeds as afore- said, and there to produce and exhibit to him the affidavit aforesaid and to swear as aforesaid that the said affidavit was true, thej', the said Abraham H. Hummel and Benjamin Steinhardt, and the said Charles F. Dodge, well knew that the said affidavit was not true, and that the said Charles F. Dodge had directly retained the said Mortimer A. Ruger as his lawyer and authorized him to appear in the said action, and that he, the said Charles F. Dodge, was served with the summons in the said action on the 31st day of March, 1897, at the Everett House, in the city and county of New York, by the said William A. Sweetser, and that the said affidavit theretofore made by the said William A. Sweetser, to the effect that he had on the Slst day of Marel, 812 Pbecedents of Foems. 1897, served the said Charles F. Dodge with a summons in the said action, was not absolutely false, but was wholly true, and the said Charles F. Dodge had met and seen the said William A. Sweetser, to wit, on the said 31st day of March, one thousand eight hundred ninety-seven, at the said Everett House, in the said city and covmty of New York. And afterwards, to wit, on the said 19th day of October, 1903, at the borough and county aforesaid, the said Charles F. Dodge, in consequence of and by the means, encouragement and effect of the said wicked, wilful and corrupt subornation and procurement of the said Abraham H. Hummel and Benjamin Steinhardt, delivered the said affidavit in writing so sworn to as aforesaid by him, the said Charles F. Dodge, to some person or persons to the grand jury aforesaid unknown, with the intent on his part and on the part of the said Abraham H. Hummel and Benjamin Steinhardt that it should be produced and used on behalf of him, the said Charles F. Dodge, such defendant in the said action as aforesaid, upon the motion hereinbelow described. And afterwards, to wit, on the 20th day of October, 1903, upon the judgment-roll in the said action and the testi- mony taken before the referee therein and on all the pleadings and proceed- ings therein and upon the said affidavit of the said Charles F. Dodge, produced before the Honorable Edward E. McCall, a Justice of the Supreme Court of the State of New York, an order was duly made by the said Honorable Edward E. McCall, such justice as aforesaid, requiring the said Clemence Dodge, the plaintiff in the said action as aforesaid, to show cause before one of the justices of the said court, at a Special Term, at a Part I thereof, to be held at the court house in the City Hall of the city of New York, in the Borough of Manhattan, on the 2d day of November, 1903, at half-past ten o'clock in the forenoon of the said day, or as soon thereafter as counsel could be heard, why the said judgment and decree of divorce entered in the said action should not be vacated and set aside upon the grounds stated in the said affidavit of the said Charles F. Dodge, and why the defendant in the said action should not have such other and further relief as to the court should seem just and proper, and by which said order it was also provided that ser- vice of the said order on or before the 31st day of October, 1903, should be deemed due and timely. And afterwards, to wit, on the 29th day of October, 1903, the said affidavit and order were duly served upon Clemence Dodge, the plaintiff in the said action, and the said affidavit of the said Charles F. Dodge was thereafter by the act and procurement of him, the said Charles F. Dodge, and in consequence of and by the means, encouragement and effect of the said wicked, wilful and corrupt subornation and procurement of the said Abraham H. Hummel and Benjamin Steinhardt, produced and used on behalf of him, the said Charles F. Dodge, such defendant as aforesaid, upon the said motion, and filed in the office of the clerk of the county of New York. And so the grand jury aforesaid do say that the said Abraham H. Hummel and Benjamin Steinhardt, in the manner and form aforesaid, felo- niously, corruptly, knowingly, wilfully, maliciously and falsely did solicit, Bubom, instigate, persuade, procure and induce him, the said Charles F. 813 Pbecedents of Foems. Dodge, to commit wilful and corrupt perjury; against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. WM. TRAVERS JEROME, District Attorney .26 [26. In People ex rel. Hummel v. Trial Term, 184 N. Y. 30, — N. E. — , the case in which this indictment was found is reported, the decision being in respect to the right to a writ of prohibition. In the lower court the defendant moved the court for an order quashing the indictment upon the ground that he had been compelled to testify against himself before the grand jury, which motion was denied.] FORM 121. Petit Larceny as a Second Offense. State of New York, Columbia County, ss. : The jurors of the people of the State of New York, in and for the body of the county of Columbia, upon their oath and affirmation do present, that at the court of common pleas begun and holden at Lenox, within and for the county of Berkshire, in the Commonwealth of Massachusetts, on the first Monday of January, in the year 1853, George Caesar was indicted for that at Richmond, in the said county of Berkshire, on the seventh day of August then last past, in a certain building then and there called and being a dwell- ing house of one Mary Van Buren, there situate, then and there in the said building, one pair of pantaloons of the value of five dollars, the proper goods and chattels of one Charles M. Van Buren, and one cloth cap of the value of fifty cents, and one gun of the value of ten dollars, of the goods and chattels of one George Albert Van Buren, all in the said building then and there being found, then and there feloniously did steal, take and carry away, against the peace of the Commonwealth of Massachusetts, and contrary to the form of the statute of the said Commonwealth in such case made and provided, whereupon such proceedings were had in due form of law, at the said .January term of the said court, that the said George Caesar was con- victed of the off'ense above set forth whereof he was indicted as aforesaid and the said court thereupon considered, ordered and adjudged that the said George Caesar, convicted of the ofl'ense aforesaid, be confined to hard labor in the house of correction, within the county of Berkshire aforesaid, for the term of eighteen months and that he stand committed according to said sen- tence, and the said George Caesar was so sentenced at the said term of the said court on the tenth day of January, 1853, the said court then and there at the times aforesaid, having full power, jurisdiction, and authority in the premises. And the jurors aforesaid upon their oath and affirmation aforesaid, do 814 Pbecedents of Foems. further present that the said George Caesar, late of the town of Canaan, in the county of Columbia, and State of New York, being the same George Caesar who was convicted and sentenced as aforesaid of petit larceny, after the said conviction and sentence, and after having been dis- charged from the said conviction and sentence, to wit, on the 27th day of December, 1854, at the town of Canaan, in the county of Columbia, and State of New York, with force and arms, three cotton shirts of the value of fifty cents each, one skirt of the value of one dollar and fifty cents, one table cloth of the value of fifty cents, six pillow covers of the value of twenty-five cents, the goods, chattels and property of Alonzo Loekwood, then and there being found, did then and there feloniously steal, take and carry away against the form of the statute in such case made and provided, and against the peace of the people of the State of New York ,and their dignity. WILLIAM A. PORTER, District Attorney.27 [27. People v. Caesar, 1 Park. Cr. R. (N. Y.) 645.] FORM 122. Piracy. United States or Ameeica, Massachusetts Disthict, sb. ; At a. Circuit Court of the United States, for the First Circuit, begun and held at Boston, within and for the District of Massachusetts, on the 15th day of October, in the year of our Lord eighteen hundred and twelve. The jurors for the United States, within and for the district and circuit aforesaid, upon their oath, present, that Samuel TuUy, late of the city of Philadelphia, in the district of Pennsylvania, mariner, and John Dalton, late also of the same city of Philadelphia, mariner, on the 10th day of January, now last past, with force and arms, upon the high seas, near a place called the Isle of May, one of the Cape Verde Islands, and out of the jurisdiction of any particular state, they, the said Samuel Tully and John Dalton, being then and there mariners of a certain vessel of the United States, being a schooner called the George Wash- ington, then and there belonging and appertaining to a certain citizen or citi- zens of the United States, to the jurors aforesaid as yet unknown, of which said vessel, one Uriah Phillips Levy, a citizen of the United States, was then and there master and commander, piratically and feloniously did then and there run away with the aforesaid vessel called the George Washington, and with cer- tain goods and merchandise, that is to say, fourteen quarter casks of Teneriffe wine, and two thousand Spanish milled dollars, being altogether of the value of five thousand dollars, which were then and there on board of the vessel aforesaid; they, the said Samuel Tully and John Dalton, during all the time aforesaid being then and there mariners of the said vessel, and in and on board of the same on the high seas as aforesaid, against the peace and dignity 815, Peecedents of Foems. of the United States, and the form of the statute in such cases made and pro- vided. And the jurors aforesaid, upon their oath aforesaid, do further pre- sent, that the said Samuel Tully and John Dalton, on the said 10th day of January, now last past, then being mariners of, in, and on board the said schooner or vessel called George Washington, belonging and appertaining to certain citizens of the United States (to the jurors aforesaid as yet un- known), with force and arms upon the high seas aforesaid, and out of the jurisdiction of any particular state, near a place called the Isle of May, one of the Cape Verde Islands, in and on board the said schooner or vessel called the George Washington, whereof the said Uriah Phillips Levy, a citizen of the said United States, then and there was master as aforesaid, the same schooner or vessel, and the tackle and apparel thereof, of the value of five thousand dollars, of lawful money of the United States, and certain goods and mer- chandise, to wit, fourteen quarter casks of Teneriffe wine, of the value of one thousand dollars of like lawful money, and two thousand Spanish milled dollars, of the value of two thousand dollars of like lawful money, of the goods and chattels of certain citizens of the United States (to the jurors aforesaid as yet unknown) then and there being in the said schooner or vessel, under the care and custody, and in possession of the said Uriah Phillips Levy, as master of the said schooner or vessel, then and there upon the high seas aforesaid, near the said Isle of May, and out of the juris- diction of any particular state, with fcvrce and arms as aforesaid, from the care, custody and possession of the said Uriah Phillips Levy, piratically and feloniously did steal, take and run away with; they (the said Samuel Tully and John Dalton) then and there being mariners of the said vessel, and in and on board the said vessel, upon the high seas as aforesaid, against the peace and dignity of the said United States, and the form of the statute in such ease made and provided. And the jurors aforesaid, upon their oath aforesaid, do further present that after the commission of the said offenses, to wit, on the 15th of July, now last past, the said Samuel and John, the offenders aforesaid, were first brought into the Massachusetts district and that the said Massachusetts district is the district into which the said offenders were as aforesaid first brought. A true bill. HUMPHREY DEVEREUX, Foreman. GEORGE BLAKE, United States Attorney for Massachusetts District.28 [28. United States v. Tully, 28 Fed. Cas. No. 16,545.] 816 Peecedents of Forms. FORM 123. Policy Gambling and Having in Possession the Apparatus Therefor. Court of Genebal Sessions of the Peace In and for the County of New York. The People of the State of New York against Albert J. Adams. The grand jury of the county of New York, by this indictment, accuse Albert J. Adams of the crime of knowingly having in his possession a writing, paper and document representing and being a record of a chance, share and interest in numbers sold in what is commonly called policy, committed as follows : The said Albert J. Adams, late of the twentieth ward of the borough of Manhattan, of the city of New York, in the county of New York aforesaid, on the twelfth day of December, in the year of our Lord one thousand nine hundred and one, at the ward, borough and county aforesaid, feloniously did knowingly have in his possession a certain writing, paper and document repre- senting and being a record of a chance, share and interest in numbers sold in what is commonly called policy, which said writing, paper and document is as follows, that is to say: Manifold books and sheets, being records of numbers sold and lottery policies sold, commonly known as a manifold book, a more particular description whereof is to the grand jury aforesaid unknown, and cannot now be given; against the form of the statute in such cases made and provided and against the peace of the people of the State of New York, and their dignity. Second Count. And the grand jury aforesaid, by this indictment, further accuse the said Albert J. Adams of the crime of knowingly having in his possession a paper, writing, print, numbers, device, policy slip and articles of a kind such as is commonly used in carrying on, promoting and playing the game commonly called policy, committed as follows: The said Albert J. Adams, late of the ward, borough and county aforesaid, afterwards, to wit, on the day and in the year aforesaid, at the ward, borough and county aforesaid, feloniously did knowingly have in his possession a paper, print, writing, numbers, device, policy slip and articles of a kind such as is commonly used in carrying on, promoting and playing the game com- monly called policy, which said paper, print, writing, numbers, device, policy slip and articles aforesaid is as follows: Manifold books and sheets, being records of numbers sold and lottery policies sold, and commonly called mani- fold books, policy slips, and being numbers alleged to have been drawn, and policy lists, being alleged records of alleged drawings, a, more particular description whereof is to the grand jury aforesaid unknown, and cannot now be given; and against the form of the statute in such case made and pro- 817 Peecedents of Forms. vided and against the peace of the people of the State of New York and their dignity. WILLIAM TRAVERS JEROME, District Attorney.29 [29. In People v. Adams, 176 N. Y. 351, 68 N. E. 636, a judgment of con- viction on the above indictment was affirmed. The indictment was under New York Pen. Code, § 344a.] FORM 124. Postal Iiaws — ^Violation of. See forms for " Robbing United States Mails " for forms for such offenses. SOUTHEBN DiSTBICT OF NEW YOBK, IN THE SECOND ClECTJIT : At a stated term of the Circuit Court of the United States of America, for the Southern District of New York, in the Second Circuit, begun and held at the city of New York, within and for the District and Circuit aforesaid, on the last Monday of February, in the year of our Lord one thousand eight hundred and fifty-nine, and continued by adjournment to and including the third day of March in the same year. SouTHEBN District or New Yokk, ss. . The jurors of the United States of America, within and for the district and Circuit aforesaid, on their oath present: That John Mulvaney, late of the city and county of New York, in the district and circuit aforesaid, laborer, heretofere, to wit, on the seventeenth day of January, in the year of our Lord one thousand eight hundred and fifty-nine, at the city of New York, in the Southern District aforesaid, and within the jurisdiction of this court, did open a letter which had been in the custody of a mail carrier, before it had been delivered to the person to whom it was directed, with a. design to obstruct the correspondence, to pry into another's business and secrets, against the peace of the United States and their dignity, and against the form of the statute of the said United States in such case made and provided. Second Count. And the jurors aforesaid, on their oath aforesaid, do further present: That John Mulvaney, late of the city and county of New York, in the district and circuit aforesaid, laborer, heretofore, to wit, on the seventeenth day of Jan- uary, in the year eighteen hundred and fifty-nine at New York, in the district and circuit aforesaid, and within the jurisdiction of this court, did destroy a certain letter which had been in custody of a mail carrier, before it had been delivered to the person to whom it was directed, with a design to obstruct the correspondence, to pry into another's business and secrets, against the peace of the United States and their dignity and against the form of the statute of the said United States in such ease made and provided. THEODORE LEDGWICK, U. S. District Attorney .M [30. United States v. Mulvaney, 4 Park. Cr. R. (N. Y.) 164. Form used in indictment for opening a letter, which had been in the custody of a mail carrier, befors it was delivered to the person to whom it was directed.] 818 Peecedents of Forms. FORM 125. Rape. Mercer Oyer and Terminer and General Jail Delivery. January Term, 1891. Mercer County^ to wit: The grand inquest of the State of New Jersey, in and for the body of the county of Mercer, upon their respective oath " Present, that John Farrell, late of the city of Trenton, in the said county of Mercer, on the fifth day of January, in the year of our Lord one thousand eight hundred and ninety-one, with force and arms, at the city of Trenton aforesaid, in the county aforesaid, and within the jurisdiction of this court, in and upon the body of one Mamie E. Morgan, in the peace of God and this State then and there being, an assault did make, and her, the said Mamie E. Morgan, being then and there a woman under the age of sixteen years, he, the said John Farrell, being then and there above the age of sixteen years, did unlawfully and carnally abuse and other wrongs to the said Mamie E. Morgan then and there did, to the great damage of the said Mamie E. Morgan. " BAYARD STOCKTON, Prosecutor of the Pleas."3i [31. Farrell v. State, 54 N. J. L. 416, — Atl. — , affirming a judgment of conviction on the above indictment and holding that the joinder of two or more distinct ofl'enses in one count of an indictment is faulty but that where the acts imputed are component parts of the same ofl'ense, the pleading is not obnoxious to the charge of duplicity.] FORM 126. Kape. Kings County, ss. : The jurors of the people of the State of New York, in and for the county of Kings, upon their oath present: That Joseph Jackson and John Dixon, now or late of the city of Brooklyn, in the county of Kings aforesaid, on the twenty-third day of August, in the year of our Lord one thousand eight hun- dred and fifty-six, at the town of Gravesend, and in the county of Kings aforesaid, in and upon the body of Catharine Sullivan, a woman of the age of ten years and upwards, in the peace of God and of the said people then and there being, with force and arms, did feloniously make an assault, and her, the said Catherine Sullivan, did then and there wickedly and feloniously and against her will, forcibly ravish and carnally and unlawfully know against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. R. C. UNDERBILL, District Attorney .'32 [32. People v. Jackson, 3 Park. Cr. R. (N. Y.) 391.] 819 Pkecedents of Foems. FORM 127. Rape — ^Attempt to Commit. Supreme Coukt — Niagaba County. The People of the State of New York against William H. Davey. The grand jury of the county of Niagara by this indictment accuse William H. Davey of the crime of an attempt to commit rape in the first degree, com- mitted as follows, to wit: That the said William H. Davey, on or about the 22nd day of June, 1903, at the city of Niagara Falls, within the county of Niagara, did then and there wilfully and feloniously, with force and arms, assault one Edith Brott, then and there being, and did then and there lay violent hands upon the said Edith Brott and did force her to lie across a chair upon her back and did then and there forcibly place his hands under the clothing of the said Edith Brott and tear the buttons therefrom and he, the said William H. Davey, did then and there by means of force and violence place his hands upon and against the privates of said Edith Brott, and insert his fingers into her privates, all of which was done by means of force and violence employed by him, the said William H. Davey, without the consent of said Edith Brott, against her will and consent, and was done by him, the said Davey, with the felonious intent of having sexual intercourse with said Edith Brott against her will and consent and of committing the crime of rape in the first degree upon said Edith Brott. That of all said acts done by him, the said Davey, as aforesaid, tended to but failed to effect the commission of the crime of rape in the first degree, and that by reason thereof the said Davey did then and there felon- iously commit the crime of an attempt to commit the crime of rape in the first degree, contrary to the form of the statute in such case made and pro- vided. Second Count. And the grand jury aforesaid, by this indictment, further accuse the said William H. Davey of the crime of assault, second degree, committed as follows, to wit: That the said William H. Davey on or about the 22nd day of June, 1903, at the city of Niagara Falls, within the county of Niagara, with intent to commit a felony upon the person of one Edith Brott, a female not his wife, to wit, the crime of rape, she then and there being, wilfully and feloniously and with force and arms did commit an assault upon her, the said Edith Brott, by violently and forcibly seizing her and compelling her to lie across a chair upon her back and did then and there forcibly place his hands under her clothing and tear the buttons therefrom, and he, the said William H. Davey, did then and there by means of force and violence place his hands upon and against the privates of said Edith Brott, and insert his finger into her privates, all of which was done by means of force and violence employed by him, the said William H. Davey, without the consent of said Edith Brott and against her will and consent, and was done by him, the said Davey, with 820 Pkecedents of Fokms. the felonious intent of having sexual intercourse with said Edith Brott, against her will and consent, and of committing the crime of rape in the first degree upon the said Edith Brott, contrary to the form of the statute in such ease made and provided, being the same acts set forth in the first count of this indictment. BURT G. STOCKWELL, District Attorney of Niagara County .33 [33. In People v. Davey, 179 N. Y. 345, 72 N. E. 244, this form was used but a conviction was reversed on the ground of the erroneous admission of evidence.] FORM 128. Receiving Stolen Property. SUPEEME COTIET COTJNTY OF CATTAEAUGUS. The People against Charles A. Doty. The grand jury of the county of Cattaraugus, by this indictment, acci-l. Charles A. Doty of the crime of knowingly and criminally receiving stolen property committed as follows: The said Charles A. Doty, on the 6th day of December, 1900, at the town of Salamanca, in this county, knowingly and wil- fully, unlawfully and feloniously did buy, take and receive from one Louis Torge, Jr., one certain hide taken from a horned creature, of the value of six dollars, of the goods, chattels and personal property of The United States Leather Company of New Jersey, a corporation duly organized under the laws of the State of New Jersey, which said hide was then and there stolen prop- erty, and which then and there had been and which he, the said Charles A. Doty, then and there well knew, had lately before been stolen from the said The United States Leather Company of New Jersey at said town by the said Louis Torge, Jr., against the form of the statute in such case made and pro- vided and against the peace of the people of the State of New York. J. M. CONGDON, District Attorney of Niagara County.*3 [34. In People v. Doty, 175 N. Y. 164, 67 N. E. 303, a judgment of convic- tion on the above indictment was afSrmed.] FORM 129. Receiving Stolen Property. City and County of New Yoek, ss. : The jurors of the people of the State of New York, in and for the body of the city and coimty of New York, upon their oath present: That Charles Wills, late of the first ward of the city of New York, in the county of New York, aforesaid; William Conley, late of the same place, and James R. Wilson, late of the same place, on the fifth day of January, in the 821 PEECEDEIfTS OF FoEMS. year of our Lord one thousand eight hundred and fifty-six, with force and arms, at the ward, city and county aforesaid, fifty veils, of the value of five dollars each; fifty shirts, of the value of five dollars each; fifty collars, of the value of five dollars each; fifty pieces of edging, of the value of five dollars each; fifty pieces of inserting, of the value of five dollars each; fifty robes, of the value of five dollars each, and fifty waists of the value of five dollars each, of the goods and chattels of Aaron G. Crane, by some person to the jurors aforesaid unknown, then lately before feloni- ously stolen of the said Aaron G. Crane, unlawfully, unjustly and for the sake of wicked gain, did feloniously receive and have; the said Charles Wills, William Conley and James R. Wilson then and there well knowing the said goods and chattels to have been feloniously stolen, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. And the jurors aforesaid, upon their oath aforesaid, do further present: That afterwards, to wit, on the day and in the year last aforesaid, the said Charles Wills, late of the ward, city and county aforesaid, with force and arms, at the ward, city and county aforesaid, fifty veils, of the value of five dollars each; fifty shirts, of the value of five dollars each; fifty collars, of the value of five dollars each; fifty pieces of edging, of the value of five dollars each; fifty pieces of inserting, of the value of five dollars each; fifty robes, of the value of five dollars each; fifty waists, of the value of five dollars each, of the goods and chattels of one Aaron G. Crane, by some person to the jurors aforesaid unknown, then lately before feloniously stolen of the said Aaron G. Crane, unlawfully, unjustly and for the sake of wicked gain, did feloniously and wilfully receive and have, the said Charles Wills then and there well knowing the said goods and chattels to have been feloniously stolen. And the jurors aforesaid, upon their oath aforesaid, do further present: That William Conley and James R. Wilson, each late of the ward, city and county aforesaid, at the ward, city and county aforesaid, before the said felony and receiving stolen goods so as committed in form aforesaid, on the fifth day of January, in the year last aforesaid, did feloniously, wilfully and maliciously incite, move, procure, aid, counsel, hire and command the said Charles Wills the said felony and receiving stolen goods in manner and form aforesaid, to do and commit, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. And the jurors aforesaid, upon their oath aforesaid, do further present: That afterwards, to wit, on the day and in the year last aforesaid, the said William Conley, late of the ward, city and county aforesaid, with force and arms, at the ward, city and county aforesaid, fifty veils, of the value of five dollars each; fifty shirts, of the value of five dollars each; fifty collars, of the value of five dollars each; fifty pieces of edging, of the value of five dol- lars each; fifty pieces of inserting, of the value of five dollars each; fifty 822 Precedents of Foems. robes, of the value of five dollars each; fifty waists, of the value of five dol- lars each, of the goods and chattels of one Aaron G. Crane, by some person to the persons aforesaid unknown, then lately before feloniously stolen of the said Aaron G. Crane, unlawfully, unjustly and for the sake of wicked gain, did feloniously and wilfully receive and have; the said William Conley, then and there well knowing the said goods and chattels to have been feloniously stolen. And the jurors aforesaid, upon their oath aforesaid, do further present: That Charles Wills and James R. Wilson, each late of the ward, city and county aforesaid, before the said felony and receiving stolen goods was com- mitted, in form aforesaid, to wit, on the fifth day of January, in the year aforesaid, at the ward, city and county aforesaid, did feloniously, wilfully and maliciously incite, move, procure, aid, counsel, hire and command the said James R. Wilson the said felony and receiving stolen goods, in manner and form aforesaid, to do and commit, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. And the jurors aforesaid, upon their oath aforesaid, do further present: That afterwards, to wit, on the day and in the year last aforesaid, the said James R. Wilson, late of the ward, city and county aforesaid, with force and arms, at the ward, city and county aforesaid, fifty veils, of the value of five dollars each; fifty shirts, of the value of five dollars each; fifty collars, of the value of five dollars each ; fifty pieces of edging, of the value of five dollars each; fifty pieces of inserting, of the value of five dollars each; fifty robes, of the value of five dollars each; fifty waists, of the value of five dollars each, of thf: goods and chattels of Aaron G. Crane, by some person to the jurors unknown, then lately before feloniously stolen of the said Aaron G. Crane, unlawfully, unjustly, and for the sake of wicked gain, did feloniously and wilfully receive and have, the said James E. Wilson then and there well knowing the said goods and chattels to have been feloniously stolen. And the jurors aforesaid, upon their oath aforesaid, do further present: That Charles Wills and William Conley, each late of the ward, city and county aforesaid, before the said felony and receiving stolen goods was com- mitted in form aforesaid, to wit, on the fifth day of January, in the year last aforesaid, at the ward, city and county aforesaid, did feloniously, wil- fully and maliciously incite, move, procure, aid, counsel, hire and command the said James R. Wilson the said felony and receiving stolen goods, in man- ner and form aforesaid, to do and commit, against the form of the statute in such case made and provided, and against the peace of the people of the State t.if New York and their dignity. A. OAKLEY HALL, District Attorney.2« [35. Wills v. People, 3 Park. Cr. E. (N. Y.) 473. Form for feloniously Teceiving and having stolen property, with counts charging some of the de- fendants as accessories.] 823 Peecedents of Foems. FORM 130. Records — Removal, Concealing and Destraction of. Court of Genebal Sessions of the Peacb, In and for the County of New York. The People of the State of New York against George E. Mills. The grand jury of the county of New York, by this indictment, accuse George E. Mills of the crime of an attempt to commit the crime of wilfully and unlawfully removing, concealing and destroying records and documents filed and deposited in a public office by authority of law, committed as follows : Heretofore, to wit, on the 25th day of March, in the year one thousand nine hundred and three, at the Borough of Manhattan, of the city of New York, in the county of New York aforesaid, the grand jury of the coimty of New York, theretofore duly drawn for the term of the Court of Geneal Ses- sions of the Peace, in and for the said county of New York, appointed to be held on the first Monday of March, in the year one thousand nine hundred and three, and duly empanelled and sworn, and then duly in session, duly presented to the said Court of General Sessions of the Peace in and for the said county, by one William G. Rockefeller, then being foreman of the said grand jury, duly appointed, qualified and acting as such, in the presence ot the said grand jury, a certain indictment theretofore duly found by the said grand jury, endorsed a " True bill," and with the said endorsement signed by the said William G. Rockefeller, so being then and there such foreman as aforesaid, charging one Richard C. Flower with the crime of grand larceny in the first degree, which said indictment was then and there duly filed by authority of the law with one Edward R. Carroll, then and there and at all times herein mentioned being the clerk of the said court, and then and there duly deposited by him by like authority in his oflSce in the Criminal Courts Building in the Borough of Manhattan, in the city and county of New York, the same being then and there and at all times herein mentioned a public office, and he being then and there and at all said times a public officer; and afterwards, to wit, on the 27th day of March, in the year aforesaid, at the borough and county aforesaid, the said grand jury, so drawn, empanelled and sworn as aforesaid, and then duly in session, duly presented to the said court, by the said William G. Rockefeller, then being its said foreman, so appointed, qualified and acting as such, in the presence of said grand jury, five other indictments, each theretofore duly found by the said grand jury, and duly endorsed and with the endorsement thereon duly signed as aforesaid, each of which said indictments charged the said Richard C. Flower with the crime of grand larceny in the first degree, each of which said indictments was then and there duly filed by authority of law with the said Edward R. Carroll, so being the clerk of the said court, as aforesaid, and was then and there duly deposited by him by like authority in his said office, all of which aforesaid indictments were then and there and at all times thereafter herein mentioned public records, papers and documents. 824 Pbecedents of Foems. And afterwards, to wit, on the 3d day of April, in the year of our Lord one thousand nine hundred and three, the said George E. Mills, late of the Borough of Manhattan, of the eity of New York, in the county of New York aforesaid, at the borough and county aforesaid, feloniously did wilfully and unlawfully attempt to remove, steal and destroy the said indictments so as aforesaid by authority of the law, filed with the said clerk of the said Court of General Sessions of the Peace in and for the county of New York, and deposited in his office, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York, and their dignity. Second Count. And the grand jury aforesaid, by this indictment, further accuse the said George E. Mills of the crime of an attempt to commit the crime of grand larceny in the second degree, committed as follows: Heretofore, to wit, on the 25th day of March, in the year of our Lord one thousand nine hundred and three, at the borough and county aforesaid, the grand jury of the county of New York theretofore duly drawn, for the term of the Court of General Sessions of the Peace in and for the said county of New York, appointed to be held on the first Monday of March in the year one thousand nine hundred and three, and duly impanelled and sworn and then duly in session, duly presented to the said court of General Sessions of the Peace in and for the said county by one William G. Rocke- feller, then being the foreman of the said grand jury, duly appointed, qualified and acting as such, in the presence of the said grand jury, a certain indictment theretofore duly found by the said grand jury, endorsed a "True bill," and with the said endorsement signed by the said William G. Rockefeller, so being then and there such foreman as afore- said, charging one Richard C. Flower with the crime of grand larceny in the first degree, which said indictment was then and there duly filed by authority of law with one Edward R. Carroll, then and there and at all times herein mentioned being the clerk of the said court, and then and there duly deposited by him by like authority in his office in the Criminal Courts Building, in the Borough of Manhattan, in the city and county of New York, the same being then and there and at all the times herein mentioned a public office, and he being then and there and at all said times a. public officer; and after- wards, to wit, on the 27th day of March, in the year aforesaid, at the bor- ough and county aforesaid, the said grand jury so drawn, impanelled and sworn as aforesaid, and then duly in session, duly presented to the said court, by the said William G. Rockefeller, then being its said foreman, so ap- pointed, qualified and acting as such, in the presence of the said grand jury, five other indictments, each theretofore duly found by the said grand jury and duly endorsed, and with the endorsement thereon duly signed as aforesaid, each of which said indictments charged the said Richard C. Flower with the crime of grand larceny in the first degree, each of which said indictments was then and there duly filed by authority of law with the 825 Precedents or Forms. said Edward R- Carroll, so being the clerk of the said court as aforesaid, and was then and there duly deposited by him by like authority in his said office, all of which aforesaid indictments were then and there and at all times thereafter herein mentioned records of the said Court of General Sessions of the Peace in and for the said county of New York, and of the said clerk thereof, and writings, instruments and records kept, filed and deposited ac- cording to law with, and in, the keeping of the said clerk, and as follows: And afterwards, to wit, on the 3d day of April, in the year of our Lord one thousand nine hundred and three, at the borough and county aforesaid, the said George E. Mills, late of the borough and county aforesaid, with force and arms, the said six indictments herein above described then and there being found, then and there feloniously did attempt to steal, take and carry away, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York, and their dignity. WILLIAM TRAVERS JEROME, District Attomey.ss [36. In People v. Mills, 178 N. Y. 274, 70 N. E. 786, a judgment of convic- tion on the above indictment was sustained.] FORM 131. Removing Dead Body of a Human Being Feloniously. State of New Yobk, Ontabio County, ss. ; The jurors for the people of the State of New York and for the body of the county of Ontario, to wit: Jonas M. Wheeler, etc., being sworn and charged to inquire for the people of the said State, and for the body of the county aforesaid, upon their oath, present that John C. Weed, Alanson R. Simops and Judson H. Graves, late of the town of Bristol, in the county aforesaid, on the 1st day of June, 1858, with force and arms, at the town of Bristol, in the county aforesaid, a graveyard situated in the said town of Bristol, county of Ontario aforesaid, did enter, and the grave therein in which the body of one Martha J. Brockelbank, deceased, had lately before then been Interred and then was, with force and arms, unlawfully, voluntarily, wilfully and in- decently, did dig, open and afterward, to wit, on the same day and year afore- said, with force and arms, at the town of Bristol, in the county aforesaid, the dead body of her, the said Martha J. Brockelbank, out of the grave aforesaid, unlawfully, feloniously and indecently did take and carry away, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. And the jurors aforesaid, upon their oath aforesaid, do further present that the said John C. Weed, Alanson R. Simmons and Judson H. Graves, on the ■day and year last aforesaid, and at the town, county and State aforesaid, a 826 Pkecedents of Foems. graveyard situated in the said town of Bristol and county aforesaid, did enter and the grave in which the body of one Martha J. Brockelbank, deceased, had lately before then been interred and then was, with force and arms, unlawfully, voluntarily and wilfully, feloniously and indecently, did dig open and after- wards, to wit, on the same day and year aforesaid, with force and arms, at the town of Bristol, in the county and State aforesaid, the dead body of her, the said Martha J. Brockelbank, out of the grave aforesaid, unlawfully, felon- iously and indecently did take, remove and carry away for the purpose of dissection, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. And the jurors aforesaid, upon their oath aforesaid, do further present that the said John C. Weed, Alanson E. Simmons and Judson H. Graves, on the day and year aforesaid, at the town, county and State aforesaid, a graveyard, sit- uated in the said town of Bristol, county aforesaid, unlawfully did enter, and the grave there in which the body of one Martha J. Brockelbank, deceased, had lately before then been interred, and then was with force and arms, unlaw- fully, voluntarily, wilfully, feloniously and indecently did dig open, and after- wards, to wit, on the same day and year aforesaid, with force and arms, at the town and county aforesaid, the dead body of her, the said Martha J. Brockelbank, out of the grave aforesaid, unlawfully, feloniously and indecently did take, remove and carry away, for the purpose of selling the same, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. And the jurors aforesaid, upon their oath aforesaid, do further present that the said John C. Weed, Alanson R. Simmons and Judson H. Graves afterward, to wit, on the same day and year last aforesaid, at the town of Bristol, in the county aforesaid, the dead body of one Martha J. Brockelbank, deceased, so as aforesaid, unlawfully, feloniously and indecently dug up from the grave afore- said and unlawfully and indecently taken and carried away as aforesaid, from the said grave, unlawfully, feloniously and indecently did receive for the pur- pose of dissection they, the said John S. Weed, Alanson E. Simmons and Judson H. Graves, then and there well knowing the said dead body of the said Martha J. Brockelbank, deceased, to have been so as aforesaid, unlaw- fully, feloniously and indecently dug up, taken and carried away from the grave aforesaid, for the purpose of dissection, against the peace of the people of the State of New York, and their dignity, and against the form of the statute in such case made and provided. WM. H. SMITH, District Attorney.37 [37. People v. Graves, 5 Park. Cr. E. (N. Y.) 135, holding that an indict- ment for feloniously disinterring the body of a Martha J. Brockelbank was not defective in not alleging that she was a human being and also that where the burial place was described as "a graveyard in the town of Bristol, Ontario county " it was no material defect that the particular graveyard was not designated. Peecedents of Foems. FORM 132. Robbing ITnited States Mail. In the C'ireuit Court of the United States of America, holden in and for the Eastern District of Pennsylvania, of April sessions, in the year of our Lord one thousand eight hundred and thirty. Eastern District of Pennsylvania, to wit: The grand inquest of the United States of America, inquiring for the Eastern District of Pennsylvania, upon their oaths and aflSrmations respect- ively, do present: That James Porter, otherwise called James May, late of the Eastern District aforesaid, yeoman ; and George Wilson, late of the Eastern District aforesaid, yeoman, on the 6th day of December, in the year of our Lord one thousand eight hundred and twenty-nine, at the Eastern District aforesaid, and within the jurisdiction of this court, with force and arms in and upon one Samuel M'Crea, in the peace of God and of the United States of America then and there being, and then and there being a carrier of the mail of the United States of America, and then and there having the custody of the said mail, and then and there proceeding with said mail from the city of Philadelphia to the borough of Reading, feloniously did make an assault, and him, the said carrier, did then and there of the said mail feloniously rob, and in then and there effecting the said robbery did then and there by the use of dangerous weapons, to wit, pistols, put in jeopardy the life of the said Samuel M'Crea, he, the said Samuel M'Crea then and there being as afore- said, the carrier of the said mail of the United States, and having then and there the custody thereof, contrary to the form of the act of Congress in such case made and provided, and against the peace and dignity of the United States of America. And the inquest aforesaid, upon their oaths and aflBrma- tions aforesaid, do further present, that the said James Porter, otherwise called James May, and the said George Wilson, afterwards, to wit, on the same day and year aforesaid, at the Eastern District aforesaid, and within the jurisdiction of this court, with force and arms in and upon the said Samuel M'Crea, then and there being a carrier of the mail of the United States, and then and there having the custody of the said mail from the city of Phila- delphia to the borough of Reading, feloniously did make an assault, and him, the said Samuel M'Crea, in bodily fear and danger of his life then and there feloniously did put, and the said mail of the United States, from him, the said Samuel M'Crea, then and there, as aforesaid, a carrier of the mail of the United States, and then and there having the custody thereof, then and there feloniously, violently and against his will, did steal, take and carry away, and in then and there effecting the robbery so as aforesaid described, did then and there by the use of dangerous weapons, to wit, pistols, put in jeopsirdy the life of the said Samuel M'Crea, then and there the carrier of the mail of the United States, and then and there having the custody thereof, contrary to the form of the act of Congress in such case made and provided, and against the peace and dignity of the United States of America. And the inquest aforesaid, upon their oaths and affirmations aforesaid, do further present, that 828 Peecedents of Foems. the said James Porter, otherwise called James May, and the said George Wil- son, afterwards, to wit, on the same day and year aforesaid, at the Eastern District aforesaid, and within the jurisdiction of this court, with force and arms, in and upon the said Samuel M'Crea, then and there being a carrier of the mail of the United States, and then and there having the custody of the said mail, feloniously did make an assault and the life of him, the said Samuel M'Crea, by the use of dangerous weapons, did then and there put in jeopardy, and the said mail of the United States from him, the said Samuel M'Crea, then and there, feloniously, violently and against the will of him, the said Samuel M'Crea, did steal, take and carry away, contrary to the form of the act of Congress in such case made and provided, and against the peace and dignity of the United States of America. GEORGE M. DALLAS, Attorney of the United States for the Eastern District of Pennsylvania. True bill. JOSEPH WATSON, Foreman.38 April 13. 1820. [38. United States v. Wilson, 28 Fed. Cas. No. 16,730, Baldw. 78. Form used in indicting for robbing the mail of the United States with the use of dangerous weapons and putting the life of the carrier in jeopardy.] FORM 133. Robbing United States Mail, In the Circuit Court of the United States of America for the Fourth Circuit, held at the city of Baltimore, in and for the Maryland District. "Maeyland District, to wit: The grand inquest of the United States of America for the Fourth Circuit, inquiring for the body of the Maryland Dis- trict upon their oath do present, that Joseph Thompson Hare, late of the said district, yeoman, together with a certain Lewis Hare and a certain John Alex- ander, on the eleventh day of March, in the year eighteen hundred and eighteen, in the night of the same day, in the public highway at Harford county, at the district aforesaid, in and upon one David Boyer, then and there being the carrier of the mail of the said United States, and the person entrusted there- with, and in the peace of God and of the said United States then and there being, with force and arms, at the district aforesaid, feloniously did make an assault, and him, the said David Boyer, in bodily fear and danger of his life in the highway aforesaid, then and there did put, and with the use of certain dangerous weapons, to wit, pistols and dirks, which the said Joseph Thompson Hare then and there in his hands held, he, the said Joseph, did put in jeopardy the life of said David Boyer, he, the said David Boyer, then and there being entrusted with, and having the custody of the said mail of the 829 Peeoedents of Foems. said United States, and the mail aforesaid, so entrusted and in the custody as aforesaid of said Beyer, certain bank bills, letters, and packets, to the jurors aforesaid unknown, belonging to certain persons to the jurors aforesaid unknown, from the personal custody and care of the said David Boyer, and against his will in the highway aforesai3, at the district aforesaid, then and there feloniously did rob, steal, take and carry away, against the form of the statute of the said United States in such cases made and provided and against the peace, government, and dignity of the said United States of America. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Joseph Thompson Hare, together with the said John Alexander and Lewis Hare, on the eleventh day of March, in the year aforesaid, in the night of the same day, in the public highway at Harford county, at the dis- trict aforesaid, in and upon David Boyer, he then and there being the carrier of the mail of the said United States, and the person entrusted therewith, and in the peace of God and of the said United States then and there being, with force and arms, at the district aforesaid, feloniously did make an assault, and him, the said David Boyer, in bodily fear and danger of his life, in the said public highway, then and there, and with the use of certain dangerous weapons, to wit, pistols and dirks, which the said Joseph Thompson Hare then and there held in his hands, the said Joseph Thompson Hare did put in jeopardy the life of said David Boyer, then and there being entrusted with, and having the custody of said mail, and the said mail of the United States from the custody, possession, and care of said David Boyer, and against the will of said David Boyer, in the highway aforesaid, at the district aforesaid, did then and there feloniously and violently rob, steal, take, and carry away, against the form of the statute of the said United States of America in such cases made and provided, and against the peace, government, and dignity of the said United States of America. And the jurors aforesaid, upon their oaths aforesaid, do further present that the said Joseph Thompson Hare, together with the said John Alexander and Lewis Hare, on the eleventh day of March, in the year aforesaid, in the night of the same day, at Harford county, in the district aforesaid, in the public highway, in and upon said Boyer, then and there in the peace of God and the said United States being, and then and there being the carrier of the mail of the said United States, and the person entrusted therewith, at the district aforesaid, feloniously did make an assault, and him, the said David Boyer, then and there having the custody of the said mail of the United States, in bodily fear and danger of his life, then and there feloniously did put, and from the custody and possession of said David Boyer, and against the will of said David Boyer, in the highway aforesaid, at the district aforesaid, feloniously and violently did rob, steal, take, and carry away the said mail of the said United States, then and there containing sundry letters, bank bills, and packets, to the jurors aforesaid unknown, beloncing to certain per- sons to the jurors aforesaid unknown, contrary to the form of the statute of 830 Peecedents of Foems. the said United States in such cases made and provided and against the peace, government and dignity of the said United States of America. ELIAS GLEKN, District Attorney of the United States for Maryland District.39 [39. United States v. Hare, 2 Wheeler's Crim. Cas. (N. Y.) 283, 284.] FORM 134. Robbery. City and Cotjntt or New Yobk, 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 oath present: That Rosanna Quinlan, late of the first ward of the city of New York, in the county of New York aforesaid, James Quinlan, Margaret E. M. Smith, and Catharine Kinsley, late of the same place, on the fourteenth day of October, in the year of our Lord one thousand eight hundred and sixty-two, at the ward, city and county aforesaid, with force and arms, in and upon one Maria Braimigan, in the peace of the said people then and there being, feloniously did make an assault, and bank bills, of bank to the jurors aforesaid unknown, and of a number and denomination to the jurors aforesaid unknown, of the value of forty-nine dollars, of the goods, chattels, and personal property of the said Maria Brannigan, from the person of said Maria Brannigan, and against the will and by violence to the person of said Maria Braningan, then and there violently and feloniously did rob, steal, take and carry away, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York, and their dignity .^o A. OAKEY HALL, District Attorney. [40. Form of an indictment for robbery in the first degree. Quinlan v. People, 6 Park. Cr. K. (N. Y.) 9, 10, holding where in an indictment for robbery in the first degree, the prisoner was charged with taking " bank bill of banks, to the jurors unknown, and of a number and denomination to the jurors aforesaid unknown, of the value of forty-nine dollars, &e., &c.," that the allegation was sufficient. FORM 135. Seduction. State of New Yoek, Yates Cou.nty, ss. : The jurors of the people of the State of New York, and for the body of the county of Yates aforesaid, upon their oath do present, that Edward Kenyon, 831 Peecedexts of Forms. late of the town of Jerusalem, in the county of Yates aforesaid, heretofore, to wit, on the second day of May, in the year of our Lord one thousand eight hundred and sixty, at the town of Jerusalem, in the county of Yates afore- said, unlawfully, wilfully and feloniously, under and by means of promise of marriage, did seduce and have illicit sexual intercourse and connection with one Mary Chissom, he, the said Edgar Kenyon, being then and there a man, and the said Mary Chissom then and there being an unmarried female of previous chaste character, contrary to the form of the statute in such case made and provided, and against the peace of the people of the State of New York, their laws and dignity. And their jurors aforesaid, upon their oath aforesaid, do further present, that heretofore, to wit, on the twentieth day of March, in the year of our Lord one thousand eight hundred and sixty, at the town of Jerusalem, in the county of Yates aforesaid, the said Edgar Kenyon undertook and promised to and with one Mary Chissom, who was then and there an unmarried female of marriageable age and condition, to marry her, the said Mary Chissom, when- ever he, the said Edgar Kenyon, should be thereunto afterwards requested, and mutual promises of marriage were then and there made by and between the said Edgar Kenyon and the said Mary Chissom. And the jurors aforesaid, upon their oaths aforesaid, do further say, that after the making of the said promise of marriage by the said Edgar Kenyon, to wit, on the second day of May, in the year of our Lord one thousand eight hundred and sixty, at the town and in the county aforesaid, he, the said Edgar Kenyon, did, under and by means of his said promise of marriage, wilfully and feloniously seduce and have illicit connection with the said Mary Chissom, he, the said Edgar Kenyon, at the time aforesaid of the making of the promise of marriage afore- said, and also at the time last aforesaid of the seduction and illicit connec- tion aforesaid, at the town and in the county aforesaid, being a man, and she, the said Mary Chissom, at the time aforesaid of the making the promise of marriage aforesaid, and also at the time aforesaid of the seduction and illicit connection aforesaid, at the town and in the county aforesaid, being an un- married female of previous chaste character, contrary to the form of the statute in such case made and provided, and against the peace of the people of the State of New York, their laws and dignity. And the jurors aforesaid, upon their oaths aforesaid, do further present that heretofore, to wit, on the twentieth day of March, in the year of our Lord one thousand eight hundred and sixty, at the town of Jerusalem, in the said county of Yates, the said Edgar Kenyon undertook to and promised to and with one Mary Chissom, who then and there was an unmarried female of marriageable age and condition, to marry her, the said Mary Chissom, and mutual promises of marriage were then and there made and entered into by and between the said Edgar and Mary. And the jurors aforesaid, upon their oath, do further say: That after the making the said promise of marriage by the said Edgar Kenyon, he, the said 832 Peecede^ts of Foems. Edgar Kenyon, under and by means of his said promise of marriage, wilfully and feloniously did seduce and have illicit connection with the said Mary Chissom, she being then and there an unmarried female of previous chaste character, contrary to the form of the statute in such case made and pro- vided, and against the peace of the people of the State of New York, their laws and dignity. H. M. STEWART, District Attorney .Ex. A. Abatement: See Plea in abatement. SECTIoit Abbreviatioits : use of in indictment 195 in abating name of accused 222 Abduction : for purpose of prostitution and kidnapping may join in separate counts 406 Abortion : bill of particulars in case of indictment for n285 necessity of alleging means used n294 procuring of and miscarriage — may join in separate counts 406 Accessory: See Principal. and principal — code provision as to indictment against — constitu- tionality of 57 indictment against — laying time of offense n319 indictment as — averment of knowledge 325 and principal — ^joinder of 428 Accnsed: See Description of Accused; Name. error in name of 202 Acts: wheie "everal coEStitute offense: See Duplicity. A. D.i use of in stating date 195 Additions : English statute of 229 Adjonrned Term: power of grand jury to find indictment at 96 Adultery : parties to may be jointly indicted 426 AdTcrtisement : effect of printing at top of indictment nl84 Affidavit: of private individual not an information n5 and information — prosecution by not excluded by statute as to in- dictment 12 on which perjury charge based need not be set out in haec verba. . . n339 and information — prosecution by in Indiana nl3 and information need not be filed in open court nl28 845 Index. SECTION Affirmation : where indictment on affirmation of grand jury 80 of grand jurors — where indictment purports to be on nl81 Aforesaid: use of word "aforesaid" where name of accused stated differently. 224 reference to venue already laid — city, county or State " afore- said " 301, 302 Af orethongbt : spelled " aforethou " vitiates 206 Against: spelled " aganist " does not vitiate 205 Age: of grand jurors as a disqualification 83 Agent: prosecution of under liquor law — necessity of indictment nl3 Aiding and Abetting: to convict one of facts should be charged n241 means of need not be stated in indictment for larceny 293 Alias: name of accused may be stated under 217 is equivalent of alias dictus n217 use of word " alias " instead of and 226 Alterations: effect of 210 effect of plea or verdict 212 Alternative : means used may be stated in n293 Amendment : to indictment — motion to recommit for nll9 of record — nunc pro tunc entries 143 of record — mode of 144 of record — failure of clerk to enter order of 144 of caption — to show place at which indictment found 156 to cure defect in caption as to time indictment found 158 of caption to show jurisdiction of court 162 to correct error in name of grand juror in caption 174 of caption to show presented by grand jury upon oath 176 to insert word " court " in caption 176 of caption to show court 176 of caption 176 of commencement 177 inserting word " oath " in commencement 181 to cure misnomer of accused 235 to cure misnomer of accused — statutory provisions as to 236 power as to — omission to state place of offense 305 846 Index. SECTION- AmemdjMemts — (Continued) : to cure omission to state or defect in stating time of offense 325 as to description or ownership of property 348 as to name of owner of personal property n351 of description of premises ' n352 to correct error in names of third persons 365 to statute — pleading statutory offense 388 to cure defect by omission of conclusion 429 Am: spelled " and " does not vitiate 205 And: use of ordinary sign for 196 use of " or " instead of " and " n202 use of word " alias " instead of 226 Animals: cruelty to — continuous acts as one offense 407 Anno Domini: use of in stating date 195 Anti-tmst Iiatv: charging offense under n374 presidents of corporations may be joined in indictment under 426 Apprehension : of offender as ground of jurisdiction of grand jury 91 Appropriate : spelled " appriate " vitiates 206 Argumentative : allegations should not be used 245 Arraignment : where indictment lost after 147 Arrest: of accused as essential to action by grand jury 90 of accused illegal — validity of indictment not affected 92 Arrest of Judgment: prior indictment not ground for motion in 106 on first indictment — effect as to second 108 where record fails to show return of indictment .^r. 128 use of " sd " for " said " not ground for 195 offense charged in disjunctive 259 want of sufficiency in charging offense 280 defects available on motion to quash may not be on motion in ... . 282 283, 284 cannot raise objection of misnomer of offense by motion in 289 repeal of law on which indictment based 384 misjoinder — refusal to quash 394 847 Index. SECTION Arson : offense charged disjunctively 261 rejection of surplusage in charging 268 location of building in indictment for nSOl averment of intent 326 building should be described 352 affecting different buildings or properties — charging of 417 Assault: statute may provide for prosecution of in summary way 18 with intent to kill is an infamous crime n30 conviction for under indictment for manslaughter — ex post facto law - 50 with intent to murder — bill for — grand jury can not return for assault and battery 104 spelled " assatt " does not vitiate 205 with intent to commit rape — charging of n241 indictment for felonious assault and battery— charging time n318 with intent to commit felony — averment of intent 326 with intent to commit — must charge act " feloniously " done 333 on an officer — averment of knowledge n335 with intent to maim and intent to kill — joinder of 393 charge of not duplicitous 395 with intent to commit rape and rape — joinder of counts for 410 charging different degrees of 410 joinder of counts at common law and under statute 414 upon two or more persons may be charged 418 with intent to murder — joinder of defendants 426 Assessment Bolls: right to object that some names of grand j urors not on n72 "A True Bill": copying of indorsement of on record not necessary 132 immaterial where indorsement made n439 application of words n439 indorsement of — where not on copy n439 indorsement of — English practice n439 indorsement of — where printed n439 necessity of indorsement of 439, 440 effect of indorsement of n439 statutory provisions requiring 441 Attempt : to commit crime and commission of crime may be charged nll5 both attempt and overt act should be alleged in charging n241 Attorney-General: See Public Prosecutor. JLntre Fois Arraign^: no such plea as nl06 848 Index. SECTION B. Bailee: alleging ownership in 351 Bank Bill: surplusage in description of n264 forged — setting forth vignette or ornaments n344 larceny of — description of n348 Bankrupt: indictment of for concealing money — sufficient averment of knowl- edge. . n336 Bastard Child: indictment for concealing death of — should allege death of 248 Bastardy: and rape — may be joined in same count 406 Bawdy Honse: joinder of counts at common law and under statute 414 joinder of husband and wife for keeping 427 "Being": use of in. charging oflFense n268 Bigamy: county in which indictments for may be found — statute 91 proof of time of offense as alleged not essential nSll Billa Vera: grand jury must find either hilla vera or ignoramus 104 Bill of Particulars: matter of requiring is in discretion of court 286 affects proof and mode of trial only 287 not part of indictment effect of granting motion for 287 right to generally 285 office of n285 motion for should be in writing n285 in case of indictment for abortion n285 time to interpose motion for n285 when defendant not entitled to n285 Body of Indictment Generally: construction of indictment generally 187 use of words which refer back 188 where pronouns are used 189 words to be construed according to usual meaning 190 where technical words ate used 191 indictment must be in English language 192 bad handwriting does not necessarily vitiate 193 stating dates — use of figures 194 use of abbreviations or Latin words 195 use of signs 196 849 54 Index. SECTION Body of Indictment Generally— ( Continued ) : requisites and suiEciency of indictment generally 197 following precedent or statute 198 strict adherence to form — early English rule — not generally fol- lowed 199 rule generally as to defects and infirmities 200 use of ungrammatical language 201 mistakes which are merely clerical 202 use of wrong pronouns 203 error in spelling 204, 205 errors in spelling which have been held to vitiate 206 effect of omissions generally 207 effect of omissions — when fatal 208, 209 effect of erasures or alterations 210 effect of interlineations 211 fatal defect in charging offense — alteration or interlineation — effect of plea or verdict 212 Boundary Ijine: between counties — offense near— charging place n298 Breast : spelled " brest " vitiates 206 Bribery : indictment should allege bribe given and received corruptly n241 Building : location of in county n298 location of in indictment for arson n301 negligence in erection of — manslaughter — charging time of offense. n322 averment of ownership of 353 Burden : of showing irregularities in organization of grand jury 68 Burden of Proof: See Evidence. Burgess: of borough — description of 227 Burglary: in one county — property taken to another — power of grand jury as to indictment 64 surplusage in charging 265 proof of time of offense as alleged not essential n311 averment of intent 326 averment of ownership of car broken into n353 and larceny — joinder of counts 402 and larceny — may join counts for 405 larceny, and receiving stolen goods — may join counts for 405 and conspiracy to commit — joinder of counts for 411 850 Index. SECTION Business : of hawking and peddling — charging offense of 255 Business Card: effect of printing at top of indictment nl84 C. Caption: not necessary at common law to repeat name of county in 61 not a part of indictment 149 merely record of court 149 an abbreviation in of name of State not fatal nl49 sufficiency not determined by adherence to technicalities 150 sufficiency of generally 150 dates in Arabic niunbers immaterial nl50 error in date not material 151 misnomer in of offense not material 151 error in as to place of offense not material 151 effect of errors or defects in 151 variance between and record not fatal nl51 applies to each count ; 152 should be distinguished from commencement — confusion between... 153 not necessity where indictment removed from superior to inferior court 154 necessity for generally 154 necessary where indictment removed to a superior court 154 when it appears nl54 defined 155 what it should state generally 155 is mere history or record of case nl55 amendment of to show place at Which indictment found 156 should state place at which found 156 statement in of place where indictment found — application of rule. 157 stating place where indictment found — sufficiency of 157 statement as to time of finding indictment generally 158 error in statement in as to time indictment found — ^amendment to cure 158 statement as to time indictment found — effect of clerk's certificate. 159 should show jurisdiction of court generally 160 failing to state name of court in — objection cannot be raised by demurrer 160 sufficiency of as to name or description of court nl60 error in as to description of court 161 nor statement in as to jurisdiction of court — sufficient if record shows 161 amendment of to show jurisdiction of court 162 851 Index. SECTION Caption — (Continued) : necessity of stating names of judges 163 time and place of holding court — generally 164 form of showing place where court held nl64 presumption as to place of holding court arising from statement in. nl64 should show county in which court held nl64 statement as to terms of holding court 165 reference to first day in stating term 166 statement of name of offense 167 statement of name of defendant 168 statement as to grand jury and county of 169 sufficiency of in showing of what county grand jury were nl69 statement as to qualification of grand jury 170 that grand jury summoned and returned 171 need not show grand jury were sworn 172 need not state number of grand jurors 173 where it shows grand jury composed of less than necessary 173 variance between name of grand juror in caption and in panel 174 names of grand jurors — whether necessary to state 174 reference to to show place of offense 175 reference to to cure defects in indictment 175 reference to to show state 175 reference to to show year ©f offense 175 reference to to show jurisdiction nl75 may be affixed by clerk to perfect record 176 amendment of 176 distinguished from commencement 177 reference to to supply omission in commencement 183 reference to to cure defects in commencement 186 omission to state time supplied by reference to 324 Caption and Commencement: of indictment 149-186 Case: spelled " cash " does not vitiate 205 Canse: of accusation — constitutional guaranty 237 Certainty: in charging offense^general rule 250 required in indictments for felony or misdemeanor n250 in charging offense, highest degree not required 251 in charging offense — reasonable certainty only required 251 statutes as to setting out facts and circumstances 252 Change of Venne: power of grand jury to find new indictment in case of Ill 852 Index. SECTION Character : of indictment 10 Charging the Offense: See Duplicity; Joinder of Offenses; Statutory Offenses. alteration or interlineation — effect of plea or verdict 212 legislature cannot deprive accused of constitutional right to know nature of charge 238 generic term felony should not be used 239 constitutional guaranty as to nature and cause of accusation 237 supposition on which rules of criminal pleading are framed n237 necessity of using technical words 240 in indictment for mayhem at common law n240 where offense consists in omission to do an act 241 facts and circumstances should be stated — ^general rule 241 necessary allegations where act not necessarily unlawful 241 indictment for libel n241 assault with intent to commit rape — should charge actual violence. n241 necessary allegations in indictment for slander n241 what facts indictment for forgery should allege n241 aiding and abetting — facts should be stated n241 indictment for perjury — necessary allegations n241 indictment for murder should allege time and place of death n241 attempt to commit crime — should allege both attempt and overt act. n241 offense of extortion n241 habeas corpus will lie where offense not charged n241 bribery — should allege bribe given and received corruptly n241 need not charge that offense is a felony or misdemeanor n241 embezzlement — should allege facts of unlawful appropriation n241 obtaining property under false pretenses — what should be alleged.. n241 object in requiring particularity 242 facts need not be stated in minute detail 243 sufficient if constituent elements of offense be set forth 243 minor circumstances need not be stated 244 direct and positive averments should be used 245 use of word " whereas " n245 supplying omissions by intendment or implication — general rule. 246, 247 ooncealing death of bastard child — death of child should be alleged. 248 murder or manslaughter — ^necessary averments as to death 248 offense of advertising counterfeit money 249 offenses under a statute 249 offense of drunkenness of one holding public office 249 offense of using false weights 249 necessity as to certainty — ^general rule 250 indictment must be as certain as declaration n250 highest degree of certainty not required 251 853 IlVDEX. SECTION Charging the Offense — (Continued) : statutory provisions as to setting out facts and circumstances — certainty 252 reasonable certainty only required 251 statutes requiring less strictness in pleading 253 where crime consists of series of acts 254, 255 offense of night walking 255 offense of being a common scold 255 of night hawking and peddling 255 offense of being a common barrator 255 repugnancy — generally 256 code provision as to what indictment must contain — New York .... n252 charging different offenses as combined act n254 Intent — violation of Unitted States statutes relating to distilled spirits n256 publishing scandalous newspapers n256 repugnancy — application of rule 257 ; repugnancy — rejection of averment as surplusage 258 indictment must not charge disjunctively 259 disjunctive averments — surplusage 260 disjunctive averments — unlawful sale of " spirituous or intoxicating liquor " 261 in disjunctive — arson 261 disjunctive averment fatal — instances 261 disjunctive averment not fatal — instances 262 surplusage does not vitiate 263 surplusage may be rejected 264 rejection of continuendo clause n264 where one of two offenses insufficiently charged surplusage n264 application and illustration of rule as to rejection of surplus- age 265, 266 surplusage — power of court to reject matter as — what may not be rejected 267 descriptive averment must be literally proved n267 use of participial form 268 use of word " being " n268 use of videlicet 269 averment that matters are unknown to grand jury 270, 271 matters of inducement 272 matters necessarily implied 273 legal conclusions — rule 274 legal conclusions — application of rule 275 matters of which court will take judicial notice 276 matters of evidence 277 matters of evidence — rule illustrated 278 854 Index. SECTIOiV charging the OSense — (Continued) : matters of defense — rule as to 279 objection to sufficiency of charge may be raised at any time 280 when question as to sufficiency of charge may be raised 280, 281 282, 283, 284 defects cured by verdict 282, 283, 284 when omission of word feloniously not ground for arrest of judg- ment n284 bill of particulars — right to generally 285 matter of requiring bill of particulars is in discretion of court 286 bill of particulars not part of indictment — effect of granting motion for 287 name of offense — failure to state 288 name of offense — failure to state correctly 289 description of offense — ^where offense created by statute 290 rejection of misnomer of offense as surplusage 291 failure to state name of offense correctly — statutes affecting 291 failure to state name of offense — statutes affecting 291 name of offense — application of rules 292 where offense named as manslaughter and body of indictment charges murder 292 means or manner of commission of offense 293, 294, 295 where gist of offense is the illegal means 294 statutes dispensing with charging means — constitutionality of 295 averments as to place — general rule 296 charging place — -false tokens and swindling n296 negligent homicide — exact place in city need not be alleged n296 indictment of town for not repairing highway — should locate high- way n296 offense committed on a highway — charging place n296 should allege place of disturbing religious worship n296 charging place of affray n296 charging place — fraudulent registration n296 averments as to place — qualification of general rule 297 where it can only be committed in certain municipal division 298 averments as to county or town 298 place — offenses near boundary line between counties n298 location of building in county n298 alleging commission of offense " at " a certain place n298 charging place where place unincorporated n298 charging county of offense — conspiracy n298 where offense indictable in different counties 299 where new county created after commission of offense includes place where committed 300 855 Index. Charging the Offense — (Continued) : section reference to venue already laid — use of words " then and there " — city, county or state '' aforesaid " 301, 302 offenses committed on board vessels 303 indictment in state court need not negative jurisdiction of federal court 304 omission to state place — power to amend 305 defects in stating place cured by verdict 306 statutes dispensing with necessity of averring place 307 matters of which court will take judicial notice 308 charging time of offense — general rule 309 where time of offense is laid after a videlicet n309 an indictment need not aver the year to be " the year of our Lord ". n309 day and year may be expressed in figures — time of offense n309 charging offense— sufficient if charged within statute of limitations. 310 where variance between time charged and proof fatal 310 precise time not assential 310 when variance between time alleged and proof not material 311 where time is an essential element 312 necessity of averring time of day in indictment for burglary n312 charging particular hour of night — offense committed in night time. n312 use of words " on or about " in stating time — generally 313 use of words " on or about " — as affected by statute 314 statute of limitations — burden of proof n315 averment as to statute of limitations — necessity of 315 averment of facts to avoid bar of statute of limitations 316 statute of limitations — where prosecution re-referred to grand jury — continuous prosecution 317 necessity of repeating time and place 318 use of words "then and there" in referring to time and place n318 where indictment charges future or impossible day 319, 320 charging offense as of same day indictment found 321 offense consisting of succession of acts — continuendo 322 necessity of stating time — statutory provisions affecting 323 omission to state time supplied by reference to caption or other parts of indictment 324 omission to state or defect in stating time — power to amend 325 when necessary to aver intent 326 when need not be averred 327 offense " with intent to defraud " — sufficiency of averment of intent. 328 necessity of averring malice — sufficiency of 329 setting out instrument or writing as basis of prosecution 339-347 setting out writings or documents — general rule 339 sufficiency of averment of knowledge 338 averment as to wilfullness of act — sufficiency of 330 averments as to wilfullness of act — when insufficient 331 856 Index. SECTION Charging tbe Offense — (Continued) : allegation that offense unlawfully done — necessity and sufficiency of. 332 charging that was " feloniously " done 333 use of words " unlawful " or " felonious " in indictment for misde- meanors 334 when necessary to aver knowledge 335 knowledge — when not necessary to aver 336 necessity of averring knowledge — statutes 337 setting out writing — where writing lost, destroyed or in hands of defendant 340 instrument basis of prosecution — attaching of to indictment 341 setting forth writing — ^where word in instrument uncertain or il- legible 342 setting forth instrument — meaning of mis-spelled words n342 setting forth writing — effect of mistake 343 setting forth writing — what may be omitted 344 setting forth obscene publication — rule as to 345 setting forth obscene publications — qualification of rule — New York case 346 setting forth obscene publications — effect of statute 347 averment describing personal property — money. . 348 description of personal property — sufficiency of in particular eases. n348 should aver excuse for failure to describe personal property — un- known to grand jury 349 averments as to value of personal property 350 averments as to ownership 351 averments describing real property 352 averments as to ownership of real property 353 names of third person — necessity of stating 354 names of third persons — sufficiency in stating 355 names of third persons — names commonly known by 356 names of third persons — error in stating — variance — idem sonans. . 357 names of third persons — statutes as to error in stating 358 names of third persons — infants 360 names of third persons — when not necessary to state 359 names of third persons — in case of corporations 361 corporation one injured — description of — organization of 362, 363 names of third persons — partners or joint owners 364 names of third persons — amendment to correct error in 365 charging prior conviction — second conviction charging grade of offense 366 charging prior offense — sufficiency of averment 367 charging prior offense — showing as to jurisdiction of 368 statute making it unnecessary to allege prior conviction — constitu- tionality of 369 charging prior conviction — averment as to discharge— sentence ... . 370 857 Index. SECTIOlSf Christian Name: of accused should be given 213 code provision dispensing with necessity of stating n213 every person presumed to have n213 of accused — use of initials instead 215 of accused — use of initials instead — effect of statute. . . . ■. 216 of accused may be stated under an alias 217 of accused unknown — use of fictitious name 218 name by which accused commonly known 219 law only knows one 221 of third person may be omitted 355 Citizen: of United States — where member of grand jury not 83 Civil Divisions: of a State — court will take judicial notice of n276 Civil Injury: indictment will not lie for 10 Clerical Errors: See Defects; Errors; Mistakes. Clerk: court cannot prohibit him from filing indictment nl33 failure of to enter on indictment day of return nl33 clerical error of in record— amendment of 143 failure to enter order amending record 144 may affix caption to perfect record 176 Clerk's Certificate: effect where error in date of caption 159 Code: definition of indictment nl provision as to indictment against accessory and principal — consti- tutionality of 57 provision dispensing with necessity of stating christian name n213 provisions as to setting out facts and circumstances — certainty. . . . 252 provision in New York as to what indictment must contain n252 provision — dispensing with necessity of repeating time and place.. 318 provision — misrecital of in indictment 384 of criminal procedure in New York — may charge offense in different forms under 402 Commencement : of proceedings as affecting jurisdiction of court n61 should be distinguished from caption — confusion between 153 reference to caption to cure defects in 175 distinguished from caption 177 is a recital of preliminary facts 177 may be omitted 177 858 Index. SECTION Commenceaient— ( Continued ) : of indictment generally 177 may be amended 177 name of court need not be stated in nl77 form of , il77 eflfect of clerical or grammatical errors in 178 as to grand jury — should show county 179 words " body of the county " not necessary nl79 matters unnecessary to state as to grand jury 180 word " jurors " instead of " grand jurors " sufficient 180 at common law should state grand jurors were sworn nl80 indictment should show presented on oath of grand jury 181 showing as to presentment — use of words " on their oath " 181 sufficiency of recital as to oath 181 where indictment purports to be on affirmations of grand jurors. . . . nl81 as to grand jury — whether it applies to each count 182 omission of name of State in 183 showing that prosecution is in name and by authority of State. .183, 184 as to the offense 185 omission of name of State in 186 defects cured by reference to caption or other parts of indictment. . 186 Common Barrator: charging offense of 255 Conunon Ijav: prosecution by information at 7 word information in constitution construed with reference to 8 every act contra bonos mores indictable at 10 indictment in constitution or statute construed with reference to ... . 11 rule as to number necessary to compose grand jury 73 joinder of counts at common law and under statute 414 Conuaon Iiaxr Form: use of in charging statutory offense 380 Common Nuisance: description as to place kept 352 Common Scold: charging offense of 255 Complaint: not an information n5 Conclnsion : constitutional provision as to cannot be waived 32 necessity of generally 429 in some States not essential — statute 429 effect of material omission in n429 of indictment in territorial court n429 effect of constitutional provision as to manner of 430 859 Index. SECTION Conclusion — (Continued) : is proper if in statutory form Jl430 of indictment found after adoption of constitution n430 constitutional provision as to manner of — strictly literal compliance not necessary 431 constitutional provision as to — unnecessary vcords — surplusage 432 necessity of conclusion to each count 433 necessity of to each count — effect of constitutional provision as to conclusion 434 necessity of concluding contrary to the form of the statute 435 contrary to form of statute — unnecessary by statute 435 contra formam statuti — office of n435 offense punishable by statute and municipal ordinance n43') where statute merely declaratory of common lavir 436 contrary to statute — misrecital of statute 385 indictment for common law offense — conclusion contrary to statute — surplusage 437 use of word " statutes " in place of " statute " 438 use of word " statute " instead of " statutes " 438 does not cure failure to aver intent 326 omission of — amendment 429 Conclusiveness : of finding of grand jury 123-126 of minutes — as to witnesses n442 Conditional FnrehaseT: alleging ownership in 351 Confessism: without indictment does not warrant judgment of conviction 32 Congress: no declaration of needed to secure constitutional safeguard 12 cannot take away right of indictment 34 may change grade of crime 34 Conjunctive : use of in charging offense under Elkins Act n382 use of — where statute is in disjunctive 382 Conspiracy : means used when necessary to allege 294, n294 charging county of offense n298 necessity of using words " falsely and maliciously " n329 charging one with others unknown is sufficient n354 to obtain note and obtaining by false pretenses — may join in separ- ate counts 406 to do criminal act and commission of act — charging of not duplicity. 411 Construction : of indictment generally. See Body of Indictment. 860 Index. SECTION Constitution: See Constitutional and Statutory Provisions. word information in construed with reference to common law 8 indictment as used in construed with reference to common law 11 of United States — right to and necessity of indictment under 12 provision of as to indictment — effect of generally 12 where made of prosecution prescribed by 13 provision of as to indictment — does not apply to proceedings to com- pel payment of debt nl3 gives no right to indictment for misdemeanor 17 provision of as to indictment applies to offense indictable at com- mon law 17 not violated by statute as to prosecution of misdemeanors by com- plaint. . . 18 right to indictment secured by 58 Constitutional and Statutory Provisions: See Statutes. term " law of the land " construed 25 term " due process of law " construed 25 " due process of law " does not require preservation of grand jury and indictment 26 " law of the land " has reference to time offense committed and not time of trial 27 what are infamous crimes within constitutional provisions. .28, 29, 30 constitutional right to indictment cannot be waived 31, 32 of right to indictment by failure to demand — misdemeanors — statute 33 Congress cannot take away right of indictment 34 Congress may change grade of crime 34 State may dispense with indictment — not restricted by fifth amend- ment to United States Constitution 35 State may dispense with indictment — not restricted by fourteenth amendment 36 State may dispense with indictment — not restricted by United States Constitution 37 State may dispense with indictment — not restricted by adoption of United States Constitution 38 where indictment and information concurrent remedies — may proceed by information though grand jury in session 39 powers of territorial government to dispense with indictment 40 a constitutional provision as to indictment gives no vested right — California case 41 a constitutional provision as to indictment gives no vested right — Missouri case 42 crime committed before admission of Territory as State — right to prosecute by information 44 legislature may prescribe form of indictment — general rule 45 limitations on power of legislature to prescribe form of indict- ment 46, 47 861 Index. SECTION Constitntional and Statutory Provisions — (Continued) : power of legislature to dispense with indictment where provided for by state constitution 48 indictment essential to jurisdictment where Constitution requires prosecution by 49 conviction of assault under indictment for manslaughter — ex post faoto law — New York case 50 whether constitutional provision for prosecution by information instead of indictment is self executing 52 legislature may dispense with indictment where authorized by Con- stitution 51 changing charge in indictment — power of courts as to 53 legislature has no power to authorize court to change charge in in- dictment 54 constitutional provision requiring indictment for offenses punish- able with imprisonment for life construed 55 right of State to provide for prosecution by information as af- fected by treaty 56 code provision as to indictment against accessory and principal- constitutionality of 57 validity of indictment not affected by failure to designate term as provided by statute 60 constitutional provision as to indictment construed with reference to common law — power of grand jury 63 statute as to indictment where goods stolen in one county and carried into another 64 statute divesting court of jurisdiction by indictment 67 securing right to indictment means indictment by valid grand jury. . 68 statute may limit right to object to formation of grand jury 72 requiring indictment — when construed with reference to common law as to number of grand jury 73 as to number of grand jury — compliance essential 74 statutes of United States as to number necessary to compose grand jury — when not applicable n74 statute exempting person from service on grand jury — effect on in- dictment 83, 84 statute as to county in which indictment for bigamy may be found . . 91 statutes as to finding indictment at term other than that following commitment 100 constitutional provision as to right to be heard construed 102 statutes as to finding indictment where prior one pending 107, 108 statute that indictment shall charge but one offense prevents joinder of several 114 statutory provisions as to resubmission of charge to grand jury. . . . 121 statute forbidding entry of indictment on record under certain con- ditions nl28 862 Index. SECTION Constitutional and Statutory Provisions — (Continued) : statute directory which requires filing of indictment nl33 statutes as to filing informations construed nl33 lost Indictment — statutory provision as to 146 as to commencement of indictment 1 84 as to construing language of indictment. 190 that offense shall be in ordinary and concise language requires use of English language 192 code provision dispensing with necessity of averring christian name. n213 constitutional guaranty as to nature and cause of accusation 237 omission to set forth abscene matter — not violation of constitutional right n345 eft'ect of constitutional provision as to manner of conclusion .... 430 431, 432 as to conclusion — necessity of to each count 434 Construction Generally : words to be construed according to usual meaning 190 of indictment generally 187 of word ■' said " - 188 of word " same " 188 where pronouns are used 189 statutes as to 190 where words have both common and technical meaning 190 of word " had " 190 of word " until " nl90 of technical words 191 Contempt of Court: in assaulting an attorney — indictment not required nl7 and malpractice — may join in separate counts 406 Continuendo : clause — rejection of as surplusage n264 offense consisting of succession of acts 322 Continuous Acts: as one offense 407, 408 Contra Bonos Mores: every act indictable 10 Contra Formam Statuti: See Conclusion. indictment may be attacked after plea of nolo contendere where it does not contain this averment n280 Contra Facem: averment that act so done does not dispense with necessary facts.. 241 Contrary to the Form of the Statute: See Conclusion. rejection of as surplusage 258 Conviction : may be had on indictment though there is a prior indictment 106 in different degree than that charged : 420 863 Index. SECTION Coroner's Inquisition: an indictment comprehends 10 Corporations: description of public corporations 227 description of generally' 228 need not state time and place defendant became corporation 228 where owner of personal property is — alleging ownership n351 averment of ownership of real property in 353 as one injured — stating name of 361 as one injured — description of — organization of 362, 363 indictment of presidents of — false swearing — sufficiency of charge. n377 presidents of may be joined 426 and individual may be jointly indicted 426 Cotton Fntnres: duplicity in charging violation of law — forbidding 408 Conncilmen : description of 227 Counterfeit Bank Note: indictment for having in possession sufficient though not set forth. h339 Counterfeiting : indictment need not set out indorsement on counterfeited paper . . . n344 continuous acts as one offense 407 conclusion of indictment for n429 Counterfeit Money: indictment for advertising — necessary averments 249 indictment for passing of — excuse for failure to produce 340 County : as affecting jurisdiction of grand jury 61, 63, 64 where offense committed indictment must be by grand jury of 63 in which indictments for bigamy may be found — ^statute as to 91 in which court held — caption should state nl64 statement in caption as to grand jury 169 of grand jury — sufficiency of caption in showing nl69 of grand jury — commencement should show 179 averment as to — place of offense 298 where offense committed — proof of essential n298 location of building in n298 created after commission of offense and including place committed. . 300 in which deceased died — sufficient averment of n301 Court: power of as to changing charge in indictment 53 legislature has no power to authorize to change charge in indict- ment 54 commencement of proceedings as affecting jurisdiction of n61 jurisdiction of as affecting jurisdiction of grand jury 62 864 Index. SECTION Court — (Continued) : direction of that grand jury be summoned from portion of district not violation of Federal Constitution 65 divested of jurisdiction by indictment — statute 67 cannot remove or change members of grand jury 79 presumption as to action of in swearing grand jury 80 order of necessary to quash a prior indictment nl06 when it may vacate order declaring first indictment superseded by second 108 power of to resubmit bill to grand jury 119 resubmission by to grand jury where no indictment found — limita- tion on power 120 return of indictment into should be shown by record — general rule. . 128 unconstitutional law as to time of holding — return of indictment. . nl28 need not be named in indorsement of filing nl33 no power to prohibit clerk from filing indictment nl33 record should show jurisdiction of 134 power of to supply record 145 power of to supply lost indictment 145 caption should show jurisdiction of 160 no statement in caption as to jurisdiction of — sufficient if record shows. . . 161 error in caption in description of 161 amendment of caption to show jurisdiction of 162 caption should state time and place of holding 164 caption should show county in which held nl64 statement in caption as to term of holding 165 amendment of caption to show 176 name of need not be stated in commencement nl77 power of to reject matter as surplusage — charging offense 267 matter of requiring bill of particulars is in discretion of 286 sufficient designation and description of — ^indictment for perjury. . n296 matters of which judicial notice will be taken 308 election matter in discretion of n394 power to require election — difi'erent felonies charged 397 may order return of indictment to grand jury to indorse names of witnesses n442 Court Martial: Congress may provide for trial by — not in violation of fifth amend- ment to Constitution 22 Cruelty to Animals: continuous acts as one offense 407 Custody: of accused as essential to action by grand jury 90 865 55 D. SECTION' Date: See Time. Dates: in caption in Arabic numbers immaterial nl50 in caption — error in not material 151 use of figures in stating 194 Death: of one murdered — time and place of should be alleged n241 should be alleged in indictment for murder or manslaughter 248 Debt: constitutional provision as to indictment does not apply to proceed- ing to compel payment of nl3 De Facto: grand jury 94 Defects: See Errors. in caption — effect of 151 in indictment — reference to caption to cure 175 in caption— amendment to cure 176 in commencement — eflfect of 178 not tending to prejudice of accused 199, nl99 in indictment — rule generally as to 200 in charging offense cured by verdict 282, 283, 284 in stating place of offense cured by verdict 306 Defendant: See Description of Accused; Joinder of Parties. statement of name of in caption 168 spelled " defendants " does not vitiate 205 Defense : matters of need not be stated 279 Definition : of indictment 1 code definition of indictment nl of presentment 2 of information 5 of caption 155 of commencement 177 Degree : charging offenses of different degree 409, 410 DemnTTer: to information sustained — right to prosecute by indictment after.. 21 to indictment — effect of n61 to first indictment — effect as to second 108 failure of caption to state name of court — objection cannot be raised by 160 on ground of repugnancy 256 866 Index. SECTION Demurrer^ ( Continued ) : want of sufficiency in charging offense 280 ■where venue of accessorial act not laid n296 prosecution barred by statute n31S on ground of duplicity n392 Description: See Description of Accused; Personal Property; Real Property. Description of Accused: general rule as to stating name 213 every person presumed to have christian name n213 necessity of repeating name 214 use of initials instead of christian name 215 use of initials instead of christian name — effect of statute 216 name may be stated under an alias 217 use of fictitious name — given name or surname unknov?n 218 use of name by which defendant commonly or generally known. . . . 219 sufficiency of proof of assumed name described by n219 indictment of foreigner under English equivalent of name '. . 220 middle name or initial — omission or insertion of 221 abbreviations in stating name 222 stating name differently in different parts of indictment 223 different names given as accused's — use of word " said " 224 where names are idem sonans 225 where two or more defendants are joined 226 public corporations and officers 227 members of partnership 228 corporations generally 228 matters of description — English statute of additions 229 use of words " junior " or " senior " 230 residence of defendant 231 mode of raising objection on ground of misnomer 232 waiver of misnomer 233 statute as to mode of objecting to misnomer 234 amendment to cure misnomer 235 amendment to cure misnomer — statutory provisions 235 DiiEerent: degree or grade — charging offenses of 409, 410 Different Articles: charging offense affecting 416 Different Bnildings: charging offense affecting 417 Different Offenses: may be included in same indictment 114 charging of in different indictments 115 Different Owners: charging offense affecting 416 867 Index. SECTION Different Persons: charging offense affecting 418 Dignity: spelled " dignily " does not vitiate 205 Discharge: averments to — charging prior conviction 370 Discretion: of court — matter of requiring bill of particulars is in 286 of court: See Election. Diseased Meat: sale of — necessity of averring knowledge 337 Disjunctive: offense should not be charged in 259 averments — surplusage 260 averment in charging offense of arson 261 averments fatal — instances 261 averment not fatal — instances 262 where statute is in — use of conjunctive 382 where acts stated in in statute — when charging of not duplicity. . . 415 Distilled Spirits: violation of United States statutes relating to charging offense of . . n256 Distinction: between presentment and indictment 3 between indictment and presentment abolished by code 4 between indictment and information 6 District Attorney: See Public Prosecutor. " Divers Other Days"; alleging offense as committed on 322 Docmnent: basis of prosecution — setting forth of 339-347 Dollars: use of sign for 196 Dram Houses: indictment against — averment of knowledge of unlawful traffic. . . . n336 Drink: spelled ■' dring " does not vitiate 205 "Due Process of I>avr": term construed 25 does not require indictment for misdemeanor 26 does not require preservation of grand jury and indictment 26 Duplicity: See Joinder of Parties. joinder of offenses in one count — general rule 392 mode of taking advantage of defect of n392 application of general as to joinder of offenses in one count 393 charging different offenses in different counts — generally — elec- tion 394, 395 868 Index. SECTION Duplicity — ( Continued ) : charging assault 395 describing same oflFense in different counts 395 may join false pretense and larceny in separate counts 396 may join embezzlement and larceny in separate counts 396 charging different felonies in different counts 396 different felonies in different counts — election 397 charging different misdemeanors 398 where several acts may constitute offense 399 different manner or means of committing offense — single count. .400, 401 several counts stating offense — different ways and means 402, 403 charging different offenses resulting from same act 404, 405, 406 counts for larceny and other offenses 405 continuous acts as one offense 407, 408 charging several acts — each a distinct offense 408 may unite offenses of different grade or degree 409, 410 charging conspiracy to do criminal act and commission of act not. . 411 charging commission of act and causing of act to be done — aiding and abetting. . 412 joinder of counts at common law and under statute 414 charging acts abated in disjunctive in statute 415 offense affecting different articles — different owners 416 where offense affects different buildings or properties — arson 417 where offense affects different persons 418 different description of person affected 419 where description of offense includes another offense 420 unnecessary averments — surplusage 421 imperfect description of another offense — surplusage 422 Dwelling-honse : spelled " dwell-house " vitiates 206 E. Eight: spelled " eiget " does not vitiate 205 Election: required of State where two indictments for same offense 106 in case of duplicity n392 effect of where different offenses charged 394 different offenses charged in different counts 394, 395 matter in discretion of court n394 requiring of — matter in discretion of court 397 different felonies in different counts 397 different offenses resulting from same act 404 charging several acts — distinct offenses 408 not required — offenses affecting different articles — different owners . . 416 698 Ijtdex. SBCTION Elkins Act: indictment under — failure to use word " knowingly " n336 charging offense under n374 use of conjunctive in charging offense under n382 negativing exceptions — indictment under 391 Embezzle : rejection of word as surplusage 266 Bmbezzlement : of a letter not an infamous crime n28 by a postmaster not an infamous crime n28 and making of false entries by a national bank president infamous crime n30 facts showing unlawful appropriation should be alleged n241 and converting money — averment of intent n327 of funds and credits — insufficient description n348 and larceny may be joinder in separate counts 396 and larceny — may join in separate counts 405 and obtaining money by false pretenses — may join in separate counts 406 of money of different persons may be charged 418 form of indictment for: See Form 68. English laangnage: indictment must be in 192 English Statute of Additions: construction and application of 229 Entry: of indictment on record: See Record. Equivalent Words: use of in charging statutory offense 381 Erasures : effect of 210 Errors: See Defects. in caption — effect of 151 in caption as to time of finding indictment not fatal 158 in caption in description of court 161 effect of in commencement 178 clerical error in stating a name 202 clerical error in stating time 202 in spelling do not vitiate 204, 205 in spelling which vitiate 206 Estate: of one and partners — alleging ownership in 351 and heirs of a person deceased — averring ownership of real prop- erty 353 " Estate or Mystery " ; in statute of additions construed n229 870 Index. SECTIOIf Evidence : showing grand jury not a legal body 68 indictment must be founded upon 103 finding of grand jury cannot be varied by extrinsic evidence — gen- eral rule 123 on which indictment found conclusiveness of finding of grand jury as to 124, 125. 126 insuflScient to show substitute for lost indictment a substantial copy nl45 sufficiency of proof of assumed name accused described by n2 19 descriptive averments must be literally proved n267 averment of matters of does not vitiate 277 matters of evidence need not be stated 277 averring matters of — rule illustrated 278 proof of county of offense is essential n298 proof of precise time of offense as alleged not essential to conviction. 311 burden of proof statute of limitations n315 as to offense— statute of limitations 316 to show knowledge — uttering forged note n335 Exceptions: in statute — generally matters of defense — when necessary to nega- tive 279 in statute — general rule as to negativing 390 in statute — negativing of — indictment for keeping a room for record- ing bets and selling pools 391 in statute — application of rule as to negativing 391 negativing of — indictment under Elkin's Act 391 negativing of — indictment violation of liquor laws n391 Excuse : for failure to describe personal property — unknown to grand jury. . 349 need not be negatived in indictment 279 Executive Department: of United States — judicial notice of record of n308 Exemption: from service as grand juror a personal privilege which may be waived 84 Ex Post Facto IaTr: use of word " knowingly " in indictment under n336 878 Index. SECTION His: use of pronoun " their " for " his " 203 use of pronoun " his " for " their " 203 Homicide: necessity of averring intent n327 different degrees of may be joined in separate counts 410 Honse: description of — ^where indicted n352 Householder : where member of grand jury not 83 Hnsband: alleging ownership in 351 and wife — joinder of 427 I. Idem Sonans: where bad handwriting 193 mistake in spelling name of place of offense — idem sonans 199 where names are 225 error in stating names of third persons 357 Illegal: arrest or custody of accused does not effect indictment 92 testimony — where indictment founded on 103 is a conclusion of law 275 Illegal Registration: averment of intent n327 111 Fame: keeping house of — averment of intent n327 keeping house of — form of indictment: See Form 52. Impanelling : of grand jury: See Grand Jury. Implication: supplying omissions by — charging offense — general rule 246, 247 Implied: matters — necessity of averring 273 Impossible : day — charging time of offense 319, 320 Incest: duplicity in charging 408 Indictment: See Body of Indictment. defined 1 code definition of nl distinguished from .presentment 3 distinguished from information 6 object of 9 879 Index. SECTION Indictment — ( Continued ) : comprehends a coroner's inquisition 10 will not lie for civil injury 10 nature and character of 10 remedy by is for redress of public injuries 10 or judicial proceeding nlO in statute — construed with reference to common law 11 common law term 11 in Constitution — construed with reference to common law II right to and necessity of 12-24 statute as to — does not exclude prosecution by affidavit — informa- tion 12 necessity of in cases of misdemeanor 17, 18, 19 when not proper remedy 20 right to prosecute by — after demurrer to information sustained. ... 21 power to indict person confined as military prisoner 22 presenting questions in moot form 24 " due process of law " does not require preservation of 26 constitutional right to cannot be waived 31, 32 waiver of right to by failure to demand — misdemeanors — statute. . . 33 power of State to dispense with 35-38 power of territorial government to dispense with 40 whether vested right to 41-43 legislature may prescribe form of — general rule 45 limitations on power of legislature to prescribe 46, 47 power of to dispense with indictment where provided for by State Constitution 48 essential to jurisdiction where constitution requires prosecution by. 49 legislature may dispense with where authorized by Constitution... 51 right to secured by Constitution 58 powers and jurisdiction of grand jury as to 58-103 should be in English language 192 may be partly written and partly printed 197 consisting of two papers pinned together 197 may be partly written with lead pencil 197 not vitiated by writing on back 197 Indorsement : on indictment not sufficient proof of organization of grand jury. ... 68 on indictment as sufficient record of return 129 on indictment — copying of on record not necessary 132 of indictment 133 of filing need not name court nl33 of filing — sufficiency of nl33 a true bill — necessity of 439, 440 " a true bill " — immaterial where made n439 880 Index. SECTION Indorsement — ( Continued ) : " a true bill "—effect of n439 " a true bill " — where copy has none n439 sufiicincy of n439 " a true bill " — where printed n439 " n true bill " — English practice n439 " a true bill " — application of words n439 statutory provision requiring indorsement " a true bill " 441 of names of witnesses 442 court may order return to grand jury to have names of witnesses indorsed n442 of names of witnesses — sufficiency of n442 of names of witness — effect of failure to indorse n442 of names of witnesses after indictment filed n442 certificate of foremen that a true bill — no part of indictment n439 of title of cause 443 of name or nature of offense 444 alleging matters of 272 Infamous Crimes: what are within constitutional provision 28, 29, 30 embezzlement by a postmaster not n28 passing counterfeited obligation of United States coupon bond not. n28 embezzlement of a letter not n28 stealing from mail not n28 conspiring to make counterfeit coin not n28 passing counterfeit money not n28 misapplying funds of a national bank is n30 assault with intent to kill is n30 larceny is n30 embezzlement and making of false entries by a national bank presi- dent is n30 Infants : as ones injured — stating names of 360 Inferential: allegations should not be used 245 Information : defined 5 distinguished from indictment 6 prosecution by as ancient as common law 7 prosecution by in absence of Constitution or statute 7 in Constitution construed with reference to common law 8 prosecution by not excluded by statute as to indictment 12 power of State to provide for prosecution by 35, 36, 37, 38 right to proceed by though grand jury in session where concurrent remedy with indictment 39 881 56 Index. SECTION Information — ( Continued ) : right to prosecute by where crime committed before admission of Territory as State 44 whether constitutional provision for prosecution by instead of in- dictment is self-executing 52 right of State to provide for prosecution by — as affected by treaty . . 56 statute as to amendment to cure misnomer of accused applies to . . . n236 •' IiLhabitant of": synonymous with " usually resident within " n315 Inhabitants : spelled ' 'inhabitanee " does not vitiate 205 Initials : use of instead of christian name of accused 215 use of instead of christian name of accused — effect of statute 216 in stating names of third persons 355 Inquisitorial : powers of grand jury 87 Instrument : basis of prosecution — should be set out 339 basis of prosecution — attaching of to indictment 341 setting forth of — ^where word in uncertain or illegible 342 mistake in setting forth 343 setting forth obscene publications 345, 346, 347 Intendment : supplying omissions by — charging offense — general rule 246, 247 nothing material to be taken by — applies to statutory offenses 374 Intent : averment of — murder in first degree 326 averment of — casting away and destroying a vessel on the high seas 326 averment of — assault with intent to commit felony 326 averment of — removal by tenant of property from leased premises . . 326 averment of — forgery and uttering a, forged instrument 326 when necessary to aver 326 averment — arson 326 averment — perjury 326 failure to aver — conclusion does not cure 326 averment of — obtaining a person's signature by false pretenses .... 326 averment of — burglary 326 averment of — robbery n326 use of words " feloniously and maliciously " in averring n326 necessity of averring as affected by statute n326 may be averred in general terms n326 averment of — forgery n326, n327 where made substance of offense by statute n326 882 I?fDEX. SECTION Intent — { Continued ) : averment of — illegal registration 327 to kill — when not necessary to aver n327 when not necssary to aver 327 averment of — keeping house of ill fame n327 averment of — larceny n327 necessity of averring — homicide n327 averment of — libel n327 offense " with intent to defraud" — sufficiency of averment of intent. 328 charging offense violation of United States statutes relating to dis- tilled spirits n256 to commit and actual commission — ^may join in separate counts .... 406 Interlineations : effect of 211 effect of plea or verdict 212 Internal Bevenne Laws: mode of prosecution of offense under 19 Interstate Commerce: violation of laws as to form of indictment: See Forms 53-55. Intoxicating Liquor Laiv: surplusage in charging violation of 266 violation of — negativing exceptions n391 continuous acts as one offense 407 sale of liquor to different persons may be charged 418 violation of — joinder of defendants 426 violation of laws as to — form of indictment: See Forms 56-59. It: use of " it " for " them " 203 J. January : spelled " Janury " does not vitiate 205 Joinder of Defendants: See Joinder of Parties. Joinder of Offenses: of different offenses in same indictment 114 in one count — general rule 392 in one count — application of general rule 393 charging different offenses in different counts — general rule — elec- tion 394, 395 in different counts — what necessary to show 395 charging several felonies in different counts 396 larceny and false pretenses in separate counts 396 embezzlement and larceny in separate counts 396 different felonies in different counts — election 397 of different felonies not to be commended 397 883 Index. SECTION Joinder of Offenses — (Continued) : charging different misdemeanors 398 where several acts may constitute offense 399 different offenses resulting from same act 404, 405 charging different offenses resulting from same act 404, 405, 406 joinder of counts for larceny and other offenses 405 continuous acts as one offense 407, 408 charging several acts — distinct offenses 408 of different degree or grade 409 conspiracy to do criminal act and commission of act 411 charging commission of act and causing act to be done — aiding and abetting 412 joinder of felony and misdemeanor 413 joinder of counts at common law and under statute 414 charging acts stated in disjunctive in statute 415 offense against different articles — different owners 416 where offense affects different buildings or properties — arson 417 where offense affects different persons 418 where description of offense includes another offense 420 unnecessary averments — surplusage 421 imperfect description of another offense — surplusage 422 Joinder of Parties: rule as to generally 423 application of general rule 423 necessity of 424 right to a severance n425 when joint prosecution essential n424 effect of 425 who may be joined as defendants 426 of husband and wife 427 principal and accessory — aider and abettor — principals in first and second degree 428 of defendants — record of 140 description of accused 226 Joint Ovrners: laying ownership in one of 351 as third persons — names of 364 Judges: names of — necessity of stating in caption 163 Judge's Certificate: where return of prerequisite to presenting charge to grand jury. ... 61 Judgment: arrested on first indictment — effect as to second 108 against defendant will be reversed whore record does not show return of indictment nl28 884 Index. SECTION Judgment— (Continued) : suflSciency of averment of jurisdiction in pleading 275 arrest of: See Arrest of Judgment. Judicial Knourledge: See Judicial Notice. matters of which court will take need not be averred 276 Judicial Notice: of value of currency of United States 276 that road or highway is a public place 276 of ownership of county jails 276 of acts prescribing the limits of cities or towns 276 not taken of city ordinance 276 of regulations prescribed by president and heads of departments . . . 276 of the civil divisions of a State will be taken n276 of the laws of a State will be taken n276 of acts prescribing limits of counties and towns 308 matters of which court will take 308 of record as to military reservation n308 of the value of money will be taken n350 of a public statute 386 Judicial Proceeding: an indictment is nlO "Junior": use of in describing accused 230 Jurisdiction : of grand jury: See Grand Jury. of court dependent on indictment, where case appealed 23 an essential to — fifth amendment to United States Constitution. ... 31 indictment essential to where Constitution requires prosecution of . . 49 of grand jury essential to validity of indictment 61 indictment must show on face facts necessary to confer n61 of court — commencement of proceedings as affecting n61 of grand jury co-extensive with and limited by that of court 62 court divested of by indictment — statute 67 of court — record should show 134 of court — caption should show 160 no statement as to in caption — sufficient if record shows 161 of court — amendment of caption to show 162 reference to caption to show nl75 of grand jury — commencement should show 179 sufficiency of averment of in pleading judgments 275 existing only in certain cases — averments should show 296 of federal court need not be negatived in indictment in State court. 304 showing as to in charging prior offense 368 Justification : matters in need not be negatived 279 885 Index. k. section Kidnapping : and abducting for purposes of prostitution— may join in separate counts 406 form of indictment for: See Form 60. Knoirledge : of members of grand jury — power to indict on 59 averment of — indictment of accessory 335 averment of — indictment for false pretenses 335 when necessary to aver 335 averment of — obstructing public officer 335 when not necessary to aver '. 336 sufficient averment of — indictment of bankrupt n336 necessity of averring — statutes 337 necessity of averring — sale of diseased meat 337 sufficiency of averment of 338 averment of — ^word "knowingly" not essential 338 L. Iiake Huron: charging offense committed on board vessel on n303 I( Continued) : as to names of grand jurors 137 presumption that oflScial duty regularly performed nl37 recital that grand jurors sworn '' according to statute " nl37 as to offense charged 138 need not show all constituents of offense charged 138 entry in misnaming offense nl38 sufficient description of offense in nl38 need not show indictment on testimony duly sworn 139 of indictment against two or more persons 140 filing away and reinstatement of indictment 141 omissions in supplied by reference to other parts of 142 nunc pro tunc entry as to filing of indictment 143 amendment to show date of filing 143 when amendment not allowed as to name of accused 143 amendment of — nunc pro tunc entries 143 error in as to impanelling of grand jury— amendment to correct .... 143 amendment of — mode of 144 time of amending 144 entry on at subsequent term will not cure omission to enter where no order for 144 failure of clerk to enter order amending record 144 power of court to supply — lost indictment 145 lost indictment — evidence insufficient to show substitute a substan- tial copy nl45 lost indictment — statutory provisions — affecting 146 indictment lost after arraignment or trial 147 where indictment found after substitution 148 variance between and caption not fatal nl51 presumption as to qualifications of grand jurors from statement in. nl70 caption may be affixed by clerk to perfect 176 reference to to supply omission in commencement 183 of executive department of United Statefe — judicial notice of n308 should show return into court " a true bill " n439 Records: removal, concealing and destruction- — form of indictment for: See Form 130. Registration : fraudulent — charging place n296 Reinstatement : of indictment after being filed away 141 Rejection: of surplusage: See Surplusage. Removing Dead Body: form of indictment for: See Form 131. 904 Index. SECTION Kepngnancy : in charging oflFense — rule 256 Tvords " store " and " shop ' not synonymous n256 in stating facts as to time and place is fatal n25G rejection of averment as surplusage 258 Requisites : indictment may be partly written and partly printed 197 indictment valid though partly written with lead pencil 197 and sufficiency generally 197 specified by statute — pleader should be guided by 198 Residence: of defendant need not be stated 231 Resubmission : of bill to grand jury — power of court as to 119 by court to grand jury where no indictment found — limitation on power 120 of charge to grand jury — statutory provisions may control 121 of charge to grand jury — where order uncertain 122 Retnrn : of indictment into court should be shown by record — general rule. . 128 of indictment — arrest of judgment where record fails to show 128 sufficiency of record of in particular cases nl28 of indictment — ^unconstitutional law as to time of holding court. . . . nl28 specific entry of on record not necessary 129 record of — indorsement on indictment as 129 sufficiency of showing of on record nl29 of indictment — presumption as to 130 Right: to indictment — generally 12 to indictment — ofi'ense created by statute 14 to indictment — summary proceedings 17 to indictment — misdemeanors 17, 18 to prosecute by indictment after demurrer to information sustained. 21 to indict one confined as military prisoner 22 to indictment — ^where case appealed 23 to indictment— when it cannot be waived 31, 32 to indictment for misdemeanors — waiver of 33 to indictment — Congress cannot take away 34 to indictment — ^power of state to dispense with 35, 36, 37, 38 to indictment — ^whether vested 41-43 of state to provide for prosecution by information as affected by treaty 56 to indictment secured by Constitution 58 to know exact charge is a sacred one n237 to indictment: See Constitutional and Statutory Provisions. 905 Index. SECTION Koad Overseer: indictment of — location of road n298 Robbery: averment of intent n326 and larceny may be joined in separate counts 405 charging different grades of 410 form of indictment for: See Form 134. Robbing United States Mail: form of indictment for: See Forms 132, 133. S. Said: construction of word " said " 188 use of word " said " where name of accused stated differently 224 Same: construction of word " same " 188 Scandalous Neivspapers: charging offense of publishing n256 School Directors: indictment against — sufficiency of description 227 Scienter: See Knowledge. Sd.: use of for word " said " not ground for arrest of judgment 195 Second Conviction: charging prior conviction: See Prior Conviction. statute as to increased penalty constitutional n366 " Secretly ": sufficient allegation of knowledge 338 Sednction : proof of time of offense as alleged not essential n3U form of indictment for: See Forms 135, 136. Selling Diseased Covr in Fnblic Market: form of indictment for: See Form 137. Senator : of United States — sufficiency of charge n377 "Senior": use of in describing accused 230 Sentence: no power to where no indictment or presentment 32 averment as to — charging prior conviction 370 Series: of acts— crime consisting of — charging offense 254, 255 Seventy-five : spelled " sunty five " does not vitiate 205 906 Index. SECTION Several : indictment against may be found true as to one 113 Several Acts: constituting offense: See Duplicity. Several Connts: grand jury may find one true and ignore others 104 necessity of averment as to grand jury in each 182 Several Offenses: may be included in same indictment U4 charging of in different indictments 115 charged as combined act n2o4 Severanoe: right to where parties joined n425 Sheriff: prosecution of for misfeasance in office nl3 summoning grand jury without process — indictment void 70 indictment against — should state county sheriflf of 227 alleging ownership in 351 Sherman Anti-Trnst Iiaw: charging oflFense under n374 presidents of corporations may be joined in indictment under 426 form of indictment under: See Form 54. Shooting: spelled " shorting " does not vitiate 205 Shooting at Qneen: form of indictment for: See Form 138. Shooting with Intent to Kill: See Form 139. "Shop": and " store " not synonymous n256 Sieve : spelled " sive " does not vitiate .- 205 Signature : of foreman of grand jury — necessity of 445 of foreman — practice is to affix n445 of foreman — ^want of — waiver n445 of foreman — place of 446 as foreman — who may affix 446 of foreman — ^what is sufficient 446 of public prosecutor — necessity of 447 of public prosecutor — who may sign 448 of public prosecutor — ^what is sufficient 449 Signs: use of in indictment 196 Silver Coins: larceny of — sufficiency of description n348 907 Index. SECTION Singular: pronoun — use of instead of plural 203 Slander : necessary allegations in indictment for n241 Slot Machine: sufficiency of indictment for operating 200 Special Iiavr: statute as to information not nl3 Special Term: power of grand jury to find indictment at 97 word " trial " in act providing for construed 98 Spelling : errors in do not vitiate 204, 205 errors in which vitiate 206 Spirituous : spelled " spiritual " or " spiritous " does not vitiate 205 State: abbreviation in caption of name of not fatal nl49 reference to caption to show 175 commencement need not show prosecution in name and by authority of 183 omission of name of in commencement 183, 186 when commencement should show prosecution in name and by authority of state 184 State's Attorney: See Public Prosecutor. Statute: See Constitutional and Statutory Provisions. designation complaint on information does not change legal effect.. n5 indictment as used in construed with reference to common law 11 where mode of prosecution prescribed by 13 as to affidavit and information not a local and special law nl3 as to mode of prosecution — effect of repeal of nl3 where offense created by — right to and necessity of indictment.... 14 mode of prosecution " by bill, plaint or information " nl4 as to prosecution in a summary way 18 as to prosecution of misdemeanors upon complaint 18 may provide for prosecution for assault in smnmary way 18 as to waiver of right to indictment by failure to demand 33 directory which requires filing of indictment nl33 as to filing informations construed nl33 as to course to be pursued — lost indictments 146 as to construing language of indictment 190 that indictment is a " written statement " does not vitiate indict- ment partly printed 197 pleader should be guided by 198 spelled " statue " does not vitiate 205 908 Index. SECTION Statute — ( Continued ) " : as affecting use of initials instead of christian name of accused. . . 216 English statute of additions 229 as to mode of objecting to misnomer of accused 234 a^ to amendment to cure misnomer of accused 236 in some states — dispenses with technical expressions 240 as to setting out facts and circumstances — certainty 252 requiring less strictness in pleading 253 as to verdict curing defects in charging offense 284 creating offense — sufficiency of description in charging 290 dispensing with necessity charging means — constitutionality of . . . . 295 dispensing with necessity of averring place of offense 307 as affecting use of words " on or about " In stating time 314 creating offense — ^laying time of subsequent to passage of 320 as to necessity of stating time 323 affecting necessity of averring intent n326 making intent substance of offense — averring intent n326 affecting necessity of averring knowledge 337 as affecting the setting forth of obscene publications 347 as to amendment in respect to description or ownership of property. 348 affecting description of money stolen n348 as to error in stating names of third persons 358 making it unnecessary to allege prior conviction — constitutionality of 369 charging offense in language of — ^general rule 371 charging offense in language of — qualification of general rule 372 on which indictment based — recital of not necessary 383 on which indictment based — effect of misrecital 384 misreeital of — effect of conclusion 385 as to conclusion 429 dispensing with conclusion contrary to form of 435 requiring indorsement " a true bill " 441 charging statutory offenses 371-391 conclusion contrary to form of: See Conclusion. Statute of Ijiiaitations : necessity of averment as to 315 burden of proof n315 averment of facts to avoid bar of 316 averment to avoid bar of — sufficiency of n316 where prosecution re;referred to grand jury — continuous prosecu- tion 317 Statutory Offenses: laying time of subsequent to passage of statute 320 where malice essential ingredient of — averment of malice 329 general rule as to charging in language of statute 371 909 Index. SECTION Statntory Offenses — (Continued) : equivalent words may be used 330 application of rule as to charging offense in language of statute. . . . n371 qualification of general rule as to charging offense in language of statute 372 where statute employs general or comprehensive terms 373 offense must be brought within words of statute 374 nothing material to be taken by intendment applies to 374 offense must be brought within words of statute 374 charging offense under Elkin's Act n374 omission to permit medical aid — charging offense n374 statute should be followed n374 rule as to charging in New York n374 application of rule as to bringing offense within words of statute. . 375 must apprise defendant with reasonable certainty of nature of accu- sation 376 sufficient if words used make charge clear — surplusage 377 offense composed of several elements or multiplicity of acts . . . 378, 379 use of common law form in charging offense 380 use of equivalent words to those of statute 381 where statute is in disjunctive — use of conjunctive 382 offense under Elkin's Act — use of conjunctive n382 recital of statute on which indictment based not necessary 383 effect of misreeitals as to statute 384 misrecitals of statute — effect of — conclusion 385 private statutes — recitals as to 386 indictment not sufficient under statute pleader bad in view but good under another statute 387 where several amendments to statute 388 rule as to charging statutory misdemeanors 389 exceptions in statute — general rule as to negativing 390 application of rule as to negativing exceptions in statute 391 charging acts stated in disjunctive in statute — not duplioitous 415 Steal: spelled " stal " does not vitiate 205 "Store": and " shop " not synonymous n256 Subornation of Perjnry: form of indictment for: See Form 120. Summary : punishment — mode of prosecution IS Summary Proceedings: what is meant by nl7 necessity of indictment 17, 18 910 Index. SECTIO?J Surname : of accused should be stated 213 of accused may be stated under an alias 217 of accused unknown — ^use of fictitious name 218 name by which accused commonly known 219 Snrplnsage : use of words which are does not vitiate 202 rejection of misnomer of accused as 223 repugnant averment — rejection as surplusage 258 rejection of averment contrary to the form of the statute 258 disjunctive averments 260 does not vitiate in charging offense 263 in charging offense may be rejected 264 rejection of continuendo clause as n264 where one of two offenses insufEcieutly charged n264 rule as to in charging offense — application and illustration of. .265, 266 power of court to reject matter as — charging offense 267 in charging offense — what may not be rejected 267 that which may have been ground of conviction cannot be rejected as n267 rejection of misnomer of offense as 291 rejection as of words " on or about" used in stating time 313 rejection as of word " feloniously " in charging misdemeanors 334 charging statutory offenses 377 misrecital of statute 385 imperfect description of another offense 422 unnecessary words in conclusion 432 indictment for common law offense — conclusion contrary to statute. 437 unnecessary averments — not duplioitous 421 S'wearing : of grand jury assential 80 of grand jury — should be shown by record. 136 T. Taxes: where member of grand jury has not paid 83 Technical 'Words: having also a common meaning 190 use and construction of 191 necessity of using in charging offense 240 Tenant: name of sufficient averment of occupation or ownership 353 Term: validity of indictment not affected by failure to designate as pro- vided by statute 60 911 Index. SECTION Term — (Continued) : of court unauthorized by law — indictment found at 93 adjourned — power of grand jury to iind indictment at 96 power of grand jury to find indictment at special term 97 word " trial " in act providing for special term construed 98 power to find indictment at term other than that following com- mitment 99, 100 failure to record before last day of term not ground for quashal.. nl28 indictment may be marked filed at subsequent term nl33 of holding court — statement in caption as to 165 sufficiently stated in caption by giving day indictment found nl65 of court — reference in caption to first day of in stating 166 Territorial Court: conclusion of indictment in n429 Territorial Govermuent : power of to dispense with indictment 40 Territory: crime committed before admission of as state — right to prosecute by information 44 Testimony : record need not show indictment on testimony duly sworn 139 Theft: and illegally branding cattle — may join in separate counts 406 Their: us of pronoun " his " for " their " 203 use of pronoun " their " for " his " 203 Them: use of word " them " — construction of 189 use of " it " for " them " 203 "Then and There": referring to venue already laid 301, 302 not necessary under code provision 318 use of in referring to time and place n318 need not repeated to averment by legal conclusion n318 Third Persons :.. See Charging Ofi'ense; Names. Time: when person may be presented by indictment 93-97 of presentment incorrect on record — error supplied by reference... 142 of filing — amendment to show 143 of making amendment of record 144 of finding indictment — statement of in caption 158 of holding court — caption should state 164 of ofl^ense — reference to caption to show year 175 of death — indictment for murder should allege n241 repugnancy in stating — fatal n256 912 Inbex. SECTION Time— (Continued) : of objecting to sufficiency of charge 280, 281, 282, 283, 284 to interpose motion for bill of particulars n285 of offense — general rule as to charging 309 of offense — indictment need not allege year to " year of our Lord " . n309 of offense — ^when variance between time charged and proof fatal. ... 310 of offense — precise time not essential 310 of offense — when variance between time alleged and proof not material 311 of offense — pleader should state same time nSll of offense — charging of where an essential element 312 of day — necessity of averring in indictment for burglary n312 of offense — particular hour of night — offense committed in night time. . n312 of offense — use of words " on or about" in stating 313 of offense — use of words "on or about" — as affected by statute. ... 314 of offense — necessity of averment as to statute of limitations 315 averrment of facts to avoid bar of statute of limitations 316 of offense — necessity of repeating 318 of offense — charging of — indictment for felonious assault and bat- tery n318 of offense — indictment against accessory n319 of offense — charging future or impossible day 319, 320 alleging time of offense as subsequent to statute creating 320 charging offense as same day indictment found 321 of offense consisting of succession of acts — charging with a oon- tinuendo 322 of offense — indictment for manslaughter caused by negligence in erection of buildings n322 of offense — necessity of stating — statutory provisions affecting 323 omission to state — supplied by reference to caption or other parts of indictment 324 of offense — omission to state or defect in stating — power to amend. . 325 of raising objection to sufficiency of averment of prior conviction . . n366 Title: of statute — misrecital of 384 of cause — ^necessity of indorsement of 443 Town: description of in indictment against 227 avermeilts as to — name of offense 298 Treason: form of indictment for: See Forms 140, 141. Treaty: right of state to provide for prosecution by information as af- fected by 56 913 68 Index. SECTION "Trial": in act providing for special term construed 98 where indictment lost after 147 Two: spelled " too " does not vitiate 205 U. XTngraiuiuatical Ijangnage: eflfect of use of 201 Vnited States Constitution: See Constitutional and Statutory- Provisions. United States Senator: indictment of — sufficiency of charge n377 Unhnotrn : to grand jury — description of personal property 349 to grand jurors — alleging ownership as n351 charging name of third person as unknown when known n3S4 averment that names of third persons are n354 Unla-nrfnl: use of word " unlawful " in indictment for misdemeanors 334 "Unlawfully": not equivalent of " wilfully " 331 sufficient allegation of knowledge 338 Unla-wf nlness : of act — averment that act unlawfully done — necessity and suffi- ciency of 332 Until: word " until " construed nl90 " Un-warranted " : is a conclusion of law 275 "Usually Resident VTithin": synonymous with inhabitant of n315 V. Vacation: power of grand jury to find indictment during 95 Validity: of indictment not affected by failure to designate term as provided by statute 60 of indictment — jurisdiction by grand jury essential to ■ 61 Value: of personal property — averments as to 350 of several articles may be stated in lump sum n350 judicial notice will be taken of the" value of money n350 914 Index. SECTION Variance: between indorsements on indictment and record of nl32 between caption and record not ground for quashing nl51 between name of grand juror in caption and panel 174 between name of offense and facts charged 292 between time charged and proof — when fatal 310 between time alleged and proof — ^when not material 311 in stating names of third persons — idem sonans 357 Vault: for interment of dead not a building n352 Venires : not having seal of court — effect on indictment 70 Venue: See Place. power of grand jury to find new indictment in case of change of . . . . Ill of accessorial act should be laid n296 Verdict: as to part of articles alleged to have been stolen — effect of 116 as to part of charge — right to indict anew as to balance 116 effect of where alteration or interlineation 212 defects in charging offense cured by 282, 283, 284 defects in stating place of offense cured by 306 too late after to object on ground of duplicity n392 Vessels: charging offense committed on board of 303 Videlicet: use of in charging offense 269 where time of offense is laid after n309 Vignette: of forged bank bill — setting forth of n344 Vocation: Spelled " avocation " does not vitiate 205 W. Waiver : constitutional right to indictment cannot be waived 31, 32 constitutional provision as to conclusion cannot be waived 32 of right to indictment by failure to demand — misdemeanors — statute .- 33 of right to indictment by grand jury of county in which offense committed 63 of objection to want of qualification of grand jurors 82 of right to exemption from service on grand jury 84 of right to be tried by grand jury of county where offense committed 111 of misnomer of accused 233 want of signature of foreman of grand jury n445 915 Index. SECTION \iratch: sufficiency of description of 348 "Whereas": effect of use of in charging offense n245 ■Wife: and husband — joinder of 427 IVilfnlness: of act — averment as to 330 of act — averments as to — ^when insufficient 331 averment of essential — indictment for perjury 331 Witnesses : necessity of recalling — new indictment 103 before grand jury incompetent — as affecting validity of indictment. nl26 indorsement of names of 442 court may order return to grand jury to have names of indorsed. . . n442 indorsement of names of after indictment filed n442 return of list of for term — statute n442 sufficiency of indorsement of names of n442 effect of failure to indorse n442 W^ords: Vfhich refer back — use of 188 having both technical and common meaning construed 190 to be construed according to usual meaning. . '. 190 use of in stating dates more certain than figures 194 use of Latin words 195 effect of omissions of generally 207 when omissions of are fatal 208, 209 necessity of using technical words in charging offense 240 equivalent to those of statute — use of 381 Writing: on back of indictment does not vitiate 197 basis of prosecution — should be set out 339 setting out of — ^where lost, destroyed or in hands of defendant 340 basis of prosecution — attaching of to indictment 341 setting forth of — where word in uncertain or illegible 342 effect of mistake in setting forth 343 setting forth obscene publications 345, 346, 347 Y. Year : in which statute passed — misrecital n384 (Total number of pages, 1008.) 916