(JflritpU ICam i>rl|00l Hibrarg Cornell University Library KF9619.B62P8 Prosecution and defence.Practical direct' 3 1924 020 200 824 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924020200824 PROSECUTION AND DEFENCE. PRACTICAL DIRECTIONS AND FORMS FOR THE GRAND-JURY ROOM, TRIAL COURT, AND COURT OF APPEAL IN CRIMINAL CAUSES, WITH FULL CITATIONS OF PRECEDENTS FROM THE REPORTS AND OTHER BOOKS, AKD A GENERAL INDEX TO THE AUTHOR'S SERIES OP CRIMINAL LAW WORKS. BY JOEL PRENTISS BISHOP, LL.D. BOSTON: LITTLE, BROWN, AND COMPANY. 1885. Entered according to Act of Congress, in the year 1885, Br Joel Pkbntiss Bishop, In the Office of the Librarian of Congress, at Washington. TTurvEKSiTT Press: JoHS Wilson and Son, Cambbidob. PREFACE. This volume completes my Criminal-law Series. The great undertaking was entered upbnv thirty-two years ago, and it has been consuming ever since the larger part of an active life of uninterrupted law writing. It consists of the personal examina- tion by one mind of all the sources of the American criminal law, including all the English, Irish, American, and leading Scotch and colonial reported cases, — of reducing the appar- ently and in some respects actually discordant mass to a system, — of eliminating from the system, not by slurrings over or denials, but by bringing to view and explaining, such ill-formed doctrines and absurdities as the courts can be readily induced to cast off, — and presenting the whole in language as compact, and with as few repetitions, as perspicuity and an exact precision would per- mit, and otherwise in manner deemed best adapted to practical, every-day use. The finished Series is in six volumes ; namely, " Criminal Law," two volumes ; Criminal Evidence, Criminal Pleading, and Criminal Practice, combined under the name of " Criminal Procedure," two volumes ; " Statutory Crimes," one volume ; and the present work, -one volume, ending with a " General Index " to the whole.^ Further and ample expla- 1 In another view, this series consists day use and necessity that no practitioner of only five volumes. " Statutory Crimes " who cares for any of my law writings will comprehends the work separately published be without it. The price of "Statutory under the title of " Commentaries on the Crimes " is but little more than of this Written Laws and their Interpretation," work, so that it need not be reckoned in meant for civil practice, and of such every- the cost of my Criminal-law Series. IV PEEPACB. nations of the nature of the work and the manner of its exe- cution are given in three Introductions published in the last editions of " Criminal Law," " Criminal Procedure," and " Mar- riage and Divorce " respectively. This volume consists of full and ample " directions " for the various steps in every sort of criminal cause within the range of the reported cases, whether on the common law or on a statute, and whether on behalf of the State or of the defendant, with the needful " forms," and references to the other pi^ecedents in the books. The indictments are given in the alphabetical order of the offences, and the citations of the American precedents in the alphabetical order of the States. For the rest of the matter, ar- ranged in chapters preceding and following those containing the indictments, the alphabetical order did not seem practical or best. Whether this closing instalment of the series should be con- densed, as it is, to one volume, or with less labor be made to occupy more expansively two or three, and so bring to me more money and to the profession less profit, was a question settled by a sacrifice which I should be glad to know will be appreciated in my lifetime ; but, if this cannot be, I rest content in the cer- tainty of the verdict of the future. All my friends, all the lawyers, whom I consulted, said it was impossible to do other- wise than put the work into not less than two volumes or spoil it. If, now it is finished, gentlemen will do me the favor to look into it and see how in fact it is, they shall receive my hearty thanks. They will discover, that, excluding what by universal consent is of no practical value, this one volume contains more matter in quantity, not speaking of the quality, than all the other books of forms and precedents in the criminal law, English and American, old and new, in however many volumes, combined. I repeat, that this is what one who " looks " will " see." I ask no reader to accept this statement except as the result of his personal examination. Let me suggest for observation the following. First. Our books of precedents are full of verbosity, by all opinions useless, not retained in the forms in this volume. Few persons are prepared to accept the whole truth on this point, PREFACE. V as to which it can be affirmed only that those who " look " will "see."i Secondly. Our books of precedents are, without exception, largely made up of useless repetitions ; a thing which need be said but once being repeated, and again repeated, and thence continually dozens and even hundreds of times. By which means great numbers of pages are consumed with what might more clearly appear, and in a way more convenient for use, on a single half page. One illustration is where verbose counts are multiplied, varying only in such few words as in the present work are introduced, between brackets, into the single form given. Another illustration consists in constant repetitions of such ridiculous surplusage as " not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil," " with force and arms," " to the great damage of the said," &c., " to the great displeasure of Almighty God," and immense quantities of other stuff of this sort. Other illustra- tions will occur to any one who compares our books of prece- dents in common use with the following pages. Thirdly. Our books of precedents are almost destitute of references to places in the other books where precedents may be found. The free insertion of such references here has given the reader practical access to nearly five thousand precedents ' I present an illustration which, I sub- and against, &c. [Conclude as in hook I. mit, is not an extreme instance, but simply chap. 3.] a fair average. The indictment in Sher- The same form, omitting nothing which ban V. Commonwealth, 8 Watts, 212, as any pleader would deem important, is, as in substance copied for use into a current given post, § 398, but little over half as book of precedents, is, long ; namely, — That A, &c. on, &c. at, &c. did lay a wager •if ii. • • J- .- i>iL- _x j-j 1 and bet of fifty dollars with one X, that a withm the lunsdiction of this court, did lay a ^ . ^r ,_ .y. jit j' ,...., L ■ r ry jLi certam M, who was then and there a candi- That D. S., late, &c. on, &c. at, &c. and wager and bet with a certain J. C, and that date nominated for the public office of gov- the said D. S. did then and there laj' a wager r ^u- o^ ^ u » i *• » J L i n j^^^ J „ •!■- .^1. ■:, T r, ernorof this State, would, at an election to and bet of fifty dollars with the said J. C. , , , . , ... .... ^- j , c . / -, be held under the constitution and laws of that a certain J. K. would be elected governor .,,_.£,... c u i . j tu , , „ , , , « , this State, on, &c. be elected governor there- of the Commonwealth of Pennsylvama at an ^j.. .^^^j ^^^ ^.^ ^^_ election to be held in said Commonwealth ' . . under the constitution and laws of said Com- This sort of condensation, if there were monwealth, on, &c. the said J. R. then and "o °*e''. ^0"^ almost, perhaps quite, re- there being a candidate nominated for pub- duce a two volume book to one volume, lie office, to wit, for the office of gover- But I have introduced other condensations nor of said Commouwealth ; contrary, &c. also, vastly more effective. VI PREFACE. neither printed nor cited in all the other books of precedents combined. I -would not, with this specification, intercept the reader's further looking and seeing. There is more discoverable ; and my wish is to stimulate him, not only to examine what is thus indicated, but, uninfluenced by suggestions from me, to pursue for himself the investigation to the end. By the means thus pointed out, this volume is made harmo- nious with the other volumes of the series. They, too, are condensed beyond what is common in books on the criminal law. If they seem to occupy large space, it is because of the great dimensions to which our criminal law has grown. Con- tinually, in writing those volumes, I had to struggle with the immensity of the material, and even to reject more or less of what presented strong claims to a place on the written page. But it has been otherwise in preparing this volume. Without any absolute restriction as to its number of pages, and without making it greatly larger than the average, I found room in it for all my material, omitting not even a word deemed important, and compressing nothing to its detriment. True, the reader will sometimes wish to look into books cited, but this is an incident of every text-book. Though not approving of verbose indictments, I have still fur- nished to the lovers of verbosity the amplest facilities for spin- ning the humdrum thread through as long a series of useless allegations, repetitions, and counts as their hearts may desire. The stuff is all given, in approved form, and with the amplest directions for its use. It is even my claim that for this sort of service the book is a great improvement on its more wordy predecessors ; for, with it, the pleader will feel a larger freedom than with them in roaming over these marvellous old grounds. To illustrate, the "devil" clause appears here, in its proper place, in various precedents copied in exact words from books in common use. The pleader can thus know its terms and position, and as easily transfer it into every indictment he draws as though it were repeated in every one of these forms. And he will feel more liberty in making 'amplifications upon it ; result- PREFACE. Vii ing, let us hope, in new and useful views concerning satanic in- fluences, and something valuable added to " science." So the art of multiplying counts uselessly is here explained, and all the help which can be of practical service for doing it is furnished. For more of the plan of the book, not necessary to be here repeated, the reader is referred to the first chapter, and to the first sub-title of the second. Nearly all the forms for the indictment, whether on the com- mon law or on a statute, are given in terms to satisfy the com- mon-law requirements as unmodified by statutes. In the few instances where mere statutory forms are inserted, the fact that they are such, and that they are not good at the common law, is distinctly stated. Those of ancient origin are constructed by eliminating from the approved precedents the allegations which the courts have adjudged to be useless ; and, where there is doubt of the necessity of an allegation, or otherwise it is in rea- son useful, it is retained. The rejected allegations are presented once in their several proper connections under each offence ; and their uselessness, and the authorities showing it, are pointed out. Since, in the States where statutory forms are provided, the pleader has his choice between them and those of the common law, the forms here given are severally good in every State in the Union, and in the United States Courts, except in the few instances where the contrary is specified. And as the common law is widely abused for its alleged unreasonable requirements regarding the indictment, and because I have a profound sympa- thy for the wronged, I take pleasure and pride in pointing to the forms in the following pages, and demanding a comparison of them with the statutory ones in "the most favored State" of the Union. Even in mere brevity, they are, as a whole, scarcely inferior ; in reason, they are not objectionable for length ; and, as furnishing precise pointings-out of the offence charged, they are surpassed by none ever enacted or devised. To this there are simply a very few partial exceptions. Nor is this conclusion modified by what is mentioned in the text, of the remissness of some of the courts in not excluding from their records disgraceful verbosity and needlessly multi- VIU PREFACE. plied and complicated counts.^ Lax judicial habits constitute no part of the law. The purpose of the directions interspersed with the forms is obvious, requiring no explanation. The concluding " General Index," opening to one view the contents of the entire series, will save the active practitioner a great deal of time. It was not deemed necessary to consume space with a separate index to the present volume, except to the forms. And all in search of forms should consult that index, not the general one to the series. In other connections I have mentioned, though with less par- ticularity than desirable, that great impediment to the improve^ ment of our legal literature, — piracy, and the countenance given it by the profession. I include herein, not only technical piracy, but all appropriations by legal writers of the labors of others without the acknowledgment which honesty demands. The evil has been creeping on us for ages, in later years its progress has been enormous, and it has now become so gigantic that it would seem impossible for reform to be longer postponed. The course of reform in nearly aU things is uniform, and it is as well known as the path of the sun. An evil grows until earth can endure it no longer. Then from some person or body of persons comes the protest; those who profit from the evil quietly put their hands over the mouths of the people, and their fingers in the ears of those who ought to hear, and for themselves assume the appearance of ignorance alike of the protest and the evil. The protest becomes louder and louder, the very rocks send it through all the air, and the policy of silence is of necessity reversed. Those from whom the protest came are vilified, the entire vo- cabulary of opprobrious epithets is emptied upon them, falsehood blackens them, and they are even denied a place in decent society. But the morning nevertheless arrives, what was dark is illumined, and the day travels onward to its noon. In the present instance, reform ought to be possible by other means. Those who profit by piracy in legal literature are com- paratively few, and those who are injured by it are not only 1 Post, § 11-14. PREFACE. ix numerous, but they constitute a considerable part of the more educated and enlightened public. If the literature of the law- kept step with the mechanic arts in improvement, the practice would be a very different thing from what it is now. And if the same protection were given it by copyright laws and a public sentiment sustaining them which improvements in mechanic arts receive from patent laws and their sustaining public sentiment, the improvements in the one would equal those in the other. In the preface to the seventh edition of " Criminal Law " I briefly pointed out the steps by which the practising lawyers can, if they will, with little trouble and expense, correct the evil and bring the day to our legal literature. An author cannot do it ; the work does not belong to me. It is not the proper function of any legal writer, it is for the practising part of the profession. If they will not take up the work, mine must be to give such warning as will prevent others from throwing away their lives in feeding pirates. A good may thus be accomplished indirectly ; for even the pirates know that, if honest authorship ceases, their vocation is gone. The present spectacle is amazing. Our practising lawyers and judges constitute a body of men not surpassed in good qualities by any other in the community. If, as may happen, a lawyer sunk in the depths of wickedness utters a falsehood with every wag of his tongue, if he steals the books from the shelves of his neighbors and claims them as his own, if at night he prowls about with the pads of the burglar on his feet and in the day loads his sideboard and table with plate for which he never paid, he will sigh in vain for any recognition among his professional brethren except what the State's attorney will give him. But let the same man, with the same purpose, fearful of prison bars, turn aside into legal authorship, — let him write his lies in a law book, — let him steal, not printed paper, sheepskin, and plate, but, what is infinitely more valuable and in a just view more to be protected, the illumined jewels and star-gems which were shed with the brain-sweat and brain-blood of honest authorship, — let him put, I repeat, this stolen matter into a law book, mingled, or not, with original gangrene from his own brain. PEEFACE. saying at every sentence, not in words, but by the more effectiYS lie which is implied in the withholding of due acknowledgment, "This is mine," thus making every page bristle with thefts and with falsehoods, then will all the learned judges, from the robed pomp of the highest judicial tribunal of the nation down through the unadorned benches of the State tribunals, listen and bow with profoundest deference to what is quoted from " the learned author," decide cases by it, and honor it by writing or citing it in their opinions. Professors of law will recommend it to pupils, alike for the building up of their understandings, and the destruction of their morals. And the legal reviews will stand as guards about the thief to see that no hound pursues him. Is there nothing here for reform? Will those eminent and honored men who thus inconsiderately reach out their hands to sustain the meanest of villains continue their encouragement forever ? Will they even join the hunt against those who plead for reform ? Until they take this further step, I shall refuse to believe that they will take it. Excellent men often do thought- lessly, or through neglect to inform themselves of the facts, what on due enlightenment and reflection they would abhor. As a consequence of this abuse, we hear constant complaints of the quality of our legal literature. Yet the cause is obvious, and so is the remedy. When the ocean is black with pirate-craft, no one wonders that commerce languishes. And if we could imagine a state of things in which, in addition to this, all the people, including the public press, bestowed equal praise, equal rewards in money, and equal protection from the prison and the gallows, upon the mariner who, three days after leaving port, returned with a cargo taken at the cannon's mouth, and him who, after a three years' voyage, brought back a like cargo for which he had honestly paid, it would not require an appeal to science to ascertain why there were so few merchant ships upon the ocean, and the few bore so little of value. The monstrosity of a human skull filled with brains both strong enough to do fit work in legal authorship and weak enough to expend their energies in feeding pirates, thus doing alike to their owner and the public a hundred-fold more harm than good, — sacrificing PEEPACB. XI a life, not like our Great Exemplar to save the world, but like Satan in his fall to damn it, — is not abundant even in the dime museums. In view of the condition of things just mentioned, and in view of the further fact that books occupying the sphere of this vol- ume seem hitherto to have been the special delight of the pirates, — in view, in short, of the strong probability that the contents of this volume, which only very great labor could produce, would be pillaged and swallowed, — it was but after a long struggle between inclination and duty, and with deep regrets, that, to satisfy the just expectations of the professional public, I resolved to add this venture to the not unsuccessful ones which have gone before. If it is His Will, without whose leave not even a pirate's sail was ever filled, that this frail bark shall pass through these seas unharmed to the haven beyond, I will thank God, whether man shall also have given occasion for my thanks or not. Nor should I quite despair, even if I did not remember that we have copyright laws, and that, though they need amend- ment, they are much more effective for the protection of an author than the pirates commonly suppose. The cycles are changing. Captain Kidd could once roam the ocean, murder his victims, rob them, sink their ships ; and acquire a wealth for which, in after ages, all the fools would turn out and dig. But that sort of captain has had his day, and the night for him has come. And who knows how near may be the time when Heav- en's breath will find its way into the legal profession, and move the hearts of the true and sturdy ones in it to sweep clean the seas of legal authorship, and leave its paths as secure as are the watery ones of commerce in times of peace ? Craving the pardon of any reader who may not understand the necessity of saying in this preface what he disapproves, I commit this volume, with the rest of the series, to the indul- gence which has hitherto made success in these labors possible. J. P. B. Cambridge, March, 1885. CONTENTS. BOOK L PRELIMINARIES. Chafteb Section I. In General of Precedents and Other Forms .... 1-8 II. Suggestions as to the Drawing of the Indictment or Information 9-36 § 9. Introdaction. 10-24. Brevity and how promoted. 25-27. Directness and Distinctness of Allegation. 28-36. Practical Methods for drawing Indictment. HI. Suggestions as to Preparations for the Defence . . 37-41 BOOK II. COMMON TO ALL OFFENCES. IV. Familiar Allegations which are to be Omitted be- cause Needless 42-49 V. The Introductory and Closing Parts of the Indict- ment OR Information and the Indorsements thereon 50-72 § 50-52. Introduction. 53-56. Caption. 57-64. Commencement, i 65-69. Concluding Part. 70-72. Indorsements. VI. Allegations in the Body op the Indictment Common to all the Offences 73-90 § 73. Introduction. 74-77. Name and Addition of Defendant. 78, 79. Names of Third Persons. 80-90. Time and Place. XIV CONTENTS. Chaptek Section Vn. The Allegation of a Pkevious Offence rendering THE Present more heavily Punishable 91-97 VIII. The Forms of Allegation against the Respective Participants in One Offence 98-130 § 98, 99. Introduction. 100-112. The Attempt. 113-118. Principals and Accessories in Felony. 1 19-122. The Like Participants in other Crimes. 123-127. Compounding. 128-130. Misprision. IX. Indictments and Complaints on Private Statutes AND Municipal By-Laws 131-136 § 131. Introduction. 132. Private Statutes. 133-136. Municipal By-Laws. BOOK III. THE SPECIFIC OFFENCES. X. Abortion 137-146 XI. Adultery, Fornication, Bastardy, Living in Adul- tery OR Fornication, Open and Notorious Lewd- ness • 147-162 Xn. Animals, Offences relating to 163-177 § 163. Introduction. 164^166. Illegal Marking and Altering Marks. 167, 168. Unlawful Driving. 169. Unlawful Herding. 170. Purchasing and Slaughtering. 171-176. Neglect to restrain, Estrays, Impounding, &c. 177. Unlicensed Keeping of Dogs. Xm. AitsoN AND other Burnings 178-199 § 178. Introduction. 179-190. The Substantive Offence. 191-195. Attempts. 196-199. Practical Suggestions. XIV. Assault and Battery 200-229 § 200. Introduction. 201-210. The Indictment in General. 211-226. Special Forms and Aggravations. 227-229. Practical Suggestions. CONTENTS, XV Ceapteb Section XV". Bankruptcy and Insolvency, Offences connected WITH 230-239 XVI. Blasphemy and Pkofaneness 240-244 XVII. Bribery 245-250 XVni. Burglary and other Breakings 251-261 § 251. Introduction. 252-257. The Substantive Offence. 258-261. Attempt. XIX. Carrying Weapons 262-268 XX. Champerty and Maintenance 269,270 XXI. Cheats at Common Law 271-277 XXII. Concealment of Birth, or Child Murder . . . 278 XXIII. Conspiracy 279-315 § 279. Introduction. 280-286. Indictment in General. 287-312. For Particular Conspiracies. 313-315. Practical Suggestions. XXrV". Contempt of Court and the Like 316-329 § 316. Introduction. 317-321. The Summary Proceeding. 322, 323. Indictment for disobeying Judicial Orders. 324-329. Same for other Contempts. XXV. Counterfeiting and the Like as to Coin . . . 330-344 XXVI. Cruelty to Animals 345-362 XXVII. Disturbing Meetings 363-372 XXVni. Drunkenness 373-376 XXIX. Duelling 377-381 XXX. Election Offences 382-400 § 382, 383. Introduction. 384-388. Illegal Voting and Attempts thereat. 389-391. Offences by Election Officers. 392-394. Other Obstructions and Undue Influencing. 395-398. Betting on Elections. 399, 400. Practical Suggestions. XXXI. Embezzlement 401-412 XXXn. Extortion 413-417 XVI CONTENTS. Chapteb Section XXXni. False Pretences 418-434 XXXIV. Fish and Game 435-440 XXXV. Forcible Entry and Detainer 441-448 XXXVI. Forcible Trespass 449-452 XXXVII. Forgery of Writings and its Kindred Offences 453-480 XXXVin. Fraudulent Conveyances, Sales, and Conceal- ments 481-487 XXXIX. Gaming 488-507 XL. Hawkers and Peddlers 508-510 XLI. Health Kegulations 511-514 XLII. Homicide, The Substantive Felony op ... . 515-548 § 515. Introduction. 516-540. Indictment under Common-law Bttles. 541-546. Same as modified by Statutes. 547, 548. Practical Suggestions. XLHI. Homicide, Attempts by Assault and otherwise to commit 549-559 XLFV. Horse-Racing and Furious Driving 560-562 XLV. Incest 563-566 XLVT. Innkeeper refusing Guest 567 XLVn. Kidnapping and False Imprisonment .... 568-572 XLVm. Labor Offences 573-580 XLIX. Larceny, Simple and Compound 581-616 L. Libel and Slander 617-639 § 617. Introduction. 618-627. By Written or Printed Words. 628-631. By Signs, Pictures, and EfiSgiea. 632-635. By Oral Words. 636-639. Practical Suggestions. LI. Liquor Keeping and Selling 640-660 LE. Lord's Day 661-671 LHI. Lotteries 672-679 LrV. Malfeasance and Non-feasance in Office . . 680-692 LV. Malicious Injuries to the Person 693-696 CONTENTS. XVU Chapter Section LVI. Malicious Mischief 697-732 § 697. Introduction. 698-700. In General. 701-707. At Common Law. 708-717. To Animals under Statutes. 718-721. To other Personal Property under Statutes. 722-730. To the Realty under Statutes. 731, 732. Practical Suggestions. LVli. Maekiage, Offences against 733-740 LVni. Mayhem and Statutory Maims 741-748 LIX. Neglects 749-758 LX. Neutrality Laws, Offences against 759,760 LXI. Noxious and Adulterated Food and the Like . . 761-772 LXII. Nuisance 773-835 § 773, 774. Introdnction. 775-777. In General. 778, 779. Barratry. 780-787. Bawdy-house. 788-790. Combustible and other Dangerous Things. 791, 792. Common Scold. 793-795. Disorderly House. 796, 797. Eavesdropping. 798-801. Evil Shows and Exhibitions. 802-804. Exposure of Person. 805-809. Gaming-house. 810-816. Injurious or Offensive Air. 817-822. Liquor and Tippling Shop3. 823-826. Making Self a Nuisance. 827-831. Noxious and Offensive Trades, &C. 832, 833. Offensive and Hurtful Noises. 834, 835. Unwholesome Food and Water. LXm. Obstructing Justice and Government 836-854 § 836, 837. Introduction. 838-843. Injuring, Resisting, &c. Official Person. 844-847. Refusing to assist Officer. 848, 849. Usurping or Assuming Office. • 850,851. Embracery. 852-854. Other Obstructions. LXrV. Peace, Breaches of the 855-861 LXV. Pension Laws, Offences against the 862-868 LXVI. Perjury 869-877 LXVn. Piracy 878,879 b XVIU CONTENTS. Chapter Section LXVin. Polygamy 880-883 LXIX. Postal Offences 884-888 LXX. Prison Breach, Bescce, and Escape .... 889-898 LXXI. Prize-Fighting 899-902 LXXn. Rape and Carnal Abuse of Children . . . 903-914 LXXni. Receiving Stolen Goods 915-918 LXXIV. Refusing Office 919 LXXV. Registry Laws, Violating 920-923 LXXVI. Riot, Rout, Affray, Unlawful Assembly . . 924^930 LXXVn. Robbery 931-938 LXXVm. Sedition 939-942 LXXIX. Seduction and Abduction of Women .... 943-951 LXXX. Self-murder 952-954 LXXXI. Sepulture 955-958 LXXXn. Slave-Trade 959-961 LXXXin. Sodomy 962-965 LXXXIV. Subornation of Perjury 966-969 LXXXV. Tax and other Revenue Laws 970-975 LXXXVL Threatening Letters and other Threats , . 976-980 LXXXVII. Tolls, Offences as to 981-985 LXXXVIIL Treason 986-989 LXXXIX. Trespass to Lands 990-995 XC. Unlicensed Business 996-1001 XCL Usury 1002,1003 XCn. Vagrancy and other like Offences . . . 1004-1010 XCm. Way 1011-1QC9 § 1011-1013. Introduction and General Fonnnla. 1014-1020. Ordinary and Turnpike Streets and Roads. 1021, 1022. Railways. 1023. Public Bridges. 1024, 1025. Public Squares and Pleasnre-Grounds. 1026-1028. Rivers and other "Ways by Water. 1029. Harbors and Public Ponds. CONTENTS. XIX BOOK IV- BEFOEE AND AFTER. Chapter Section XCIV. Steps by the Defendant before Verdict . . . 1030-1065 § 1030. Introduction. 1031, 1032. Motion to Quash. 1033-1035. Plea to Jurisdiction. 1036-1039. Pleas in Abatement. 1040, 1041. Demurrers. 1042-1047. Pleas in Bar. 1048-10.50. General Issue. 10.51, 1052. Nolo Contendere. 1053-1060. Pleadings subsequent to the Pleas. 1061-1063. Setting up Insanity. 1064. Change of Venue. 1065. Application for Continuance. XCV. The Record 1066-1073 XCVI. Steps to Procure a Reversal 1074-1091 § 1074. Introduction. 1075-1077. Motion for New Trial. 1078. Exceptions. 1079. Arrest of Judgment. 1080-1082. Certiorari. 1083-1091. Writ of Error. Page Index to the Cases cited 599 Index to the Forms in this Volume 655 General Index to the Series of Six Volumes 709 DIRECTIONS AND FOUMS. BOOK I. PRELIMINARIES. CHAPTER I. IN GENERAL OV PEBCEDENTS AND OTHER FORMS. § 1. As of Three Parts. — A form of indictment may be con- templated as consisting of three parts ; namely, what is common to all indictments, what pertains to all for the specific offence, and what is special to the individual instance. And something like this may be said of the subsequent pleadings and other forms. Now, — § 2. Books of Forms. — A book of forms properly contains the first two parts. Such a book, in any department of the law, is helpful ; and, in the criminal law, it is indispensable to the prac- titioner. Our criminal procedure runs so much in ruts that it is inconvenient, and offensive- to the courts, for the pleader to depart from what is common, even though he invents a form legally suflBcient. " Pleaders," said Wagner, J. in rebuke of what had been done in disregard of this rule, " should be more careful and pay some attention to the prescribed forms which have grown up and become familiar to the profession."^ It is little short of an insult to a judge to compel him, without any necessity, to pass upon the sufficiency of a form got up for the occasion in disre- gard of established practice. But these observations do not 1 The State v. Eeakey, 62 Misso. 40, 41. 1 1 § 4 PEELIMINARIES. [BOOK I. apply to the averments of those facts which are special to the particular instance. They ought to individualize the transaction complained of;' and, as transactions differ, the pleader cannot ordinarily, with true propriety, set out the facts special to his case in words which another pleader had employed in describing a different transaction. A book of forms, therefore, should con- tain the first two parts, and just and only enough of the third to illustrate to the practitioner the methods of its construction. How far otherwise our books of forms in the criminal law have commonly been made the reader familiar with them does not need to be told. The departures from this method, and their heaps of useless lumber, are patent on the face of most of them. Hence — § 3. This Book. — It is proposed, in the present work, simply to give so much and so many of the forms as are common to all cases, and to all of each class ; with the directions and illustra- tive instances which will enable the pleader intelligently to fill in, for each emergency, the facts special to the individual instance. And, to supply him with all practicable help, so that he can look up for himself any question in its minuter details, references will be added to such other forms and precedents as our books contain. The difference, therefore, between those parts of this volume which consist of forms, and the books of forms and precedents in the criminal law heretofore in common use, is the same as between an exhaustive treatise on a legal subject, sustained by full citations of the authorities, and one or more volumes consisting of mere reports of cases and opinions of eminent lawyers. § 4. Authority of Precedents. — A precedent is a form which has been used, and has thus received a sort of judicial sanction. And as judicial usage is one of the evidences of the law,* pre- cedents are looked upon as possessing more or less of authority. What is done daily in our courts, and not objected to, is pre- sumably right. But not unfrequently a fatal omission or ill averment in an indictment passes for years, under the eye of able courts and counsel, unnoticed.^ Such a course of things does 1 Crim. Proced. I. § 566-584, 6U, 619, v. Wright, 1 Cush. 46, and Commonwealth 620. V. Tarbox, 1 Cush. 66, where a form for a 2 Stat. Crimes, § 104. long series of years in common use in ' Crim. Proced. II. § 587. An illustra- Massachusetts, and specially recommended .tion of this may he seen in Commonwealth by a famous prosecuting officer in a hook 2 CHAP. I.] OP PEECEDENTS AND FORMS. § 6 not make the precedent good against an objection clearly well taken in principle. Again, almost all our forms contain more or less words inserted from what is termed "abundant caution," where their necessity is not even seriously presumed. It would be absurd, therefore, to argue that, because a particular phrase is found in all the indictments for a given offence it is couse- quently indispensable.^ But, with these qualifications, such of the precedents in our books as are taken from actual and long- continued usage are high evidence of what should be in allega- tion. Still, — § 5. Our Form-books. — In matter of fact, not all the forms in our books of " precedents of indictments " and the like are of this high order. They are of various grades ; some of them are simply such as have been drawn by the author of the book or by some eminent pleader, having never been subjected to criticism in the tribunals. These, therefore, while suggestive, have little or no weight in authority. Moreover, — § 6. Forms sustained by the Courts. — In actual practice, when an indictment or other pleading has been neatly drawn, — when it is in arrangement perfect, and in matter clear and full, — in short, when it is without fault, not often is it questioned ; so that, on this class of allegations, our courts seldom have occasion of forms which he had compiled, was ad- where the indictment was held to be good, judged bad. These cases, I will say from this particular question not having been remembrance, were argued in succession, raised. To meet this view, I brought for- flnd as though together, under a mutual ward what the reporter did not deem it understanding between the several counsel necessary to preserve. I searched, spend- for the defendants. It was while I was a ing a week's time, the unpublished records young lawyer in practice, but I took a of the highest judicial court during the leading part as to the point now alluded to. entire colonial period, and down somewhat In each case, on the motion in arrest of below ; and showed that, in every case judgment in the lower court, the judges involving the point, the form had been the of that court expressed the unqualified same for which we contended. The change opinion that long usage in Massachusetts had come later ; and, while never objected had changed for this State the common to, had never been adjudged good. Thus law on the subject. And in the higher the case was won. And never did I have court the attorney for the Commonwealth the slightest doubt, or know of a doubt in declared that to yield to the views urged the mind of any one else, that the decision for the defendants would be equivalent to was right. The prisoners in the State opening the door of the State prison to prison did not hear of it, and so the one-third of its inmates. So far as research prophecy of the attorney for the Common- could disclose, the form controverted had wealth was not fulfilled. been the uniform one, never departed from ' And see observations of Lord Kenyon, and never objected to, during the whole C. J. in Rex v. Crossley, 7 T. R. 315, period covered by our published reports. 318. It even appeared in cases in the reports § 7 PRELIMINABIES. [BOOK I. to pass. It is when an indictment, for example, is obscure, or there is otherwise real doubt of its sufficiency, that it comes into judicial question. If it is sustained, forthwith all the inconsider- ate members of our profession who, in every profession, consti- tute the majorit}', look upon it, preserve it, and guard it about, as pure gold tried in the fire They put their own good sense to sleep ; and, when they have occasion to draw a like pleading, follow the "precedent." The average compiler takes this one, sets it in the best of printer's black ink, and passes it down for the admiration of ages. Thus the form which was too certainly correct for dispute is rejected, and the ill-shapen and doubtful one is crowned to reign forever. " This indictment," a learned judge once said, " was carelessly drawn, and should not be fol- lowed as a precedent ; " while yet it was adjudged to answer the legal requirement.^ In another case, the court observed : " This indictment is drawn in a careless manner, without regard to that precision and professional accuracy which should always be used in the preparation of such instruments. Indeed, it is a source of painful regret to notice the general want of skill so often manifest before us, in criminal cases, in the drawing of indict- ments. This, no doubt, often happens from the haste with which such matters are prepared on the circuits, and from the want of books and other conveniences necessary for the calm and delib- erate performance of such duties." ^ Yet, should we trace care- fully the history of our " honored precedents," we should find many of them to be made of this sort of stuff; their glory con- sisting of their grotesqueness, and their hoary snows. Nor should we, therefore, reject the old forms of this sort, but we should scrupulously avoid the adopting of like new ones. § 7. Improving the Forms. — In every other department, the law improves practically, the same as theoretically, with the decisions which render it more precise, just, and scientific. Not so in this. It matters not how often the courts decide, and how well every lawyer knows, that such allegations as the defendant's having committed the wrong "instigated by the devil," "not having the fear of God before his eyes," " with force and arms," and other like nonsense which originated in superstition and 1 Bliss, J. in The State v. Murphy, 47 ^ Ryjand, J. in The State v. Edwards, Misso. 274, 276. And see to the like effect 19 Misso. 674, 677. Gay V. The State, 2 Texas Ap. 127. 4 CHAP. I.] OP PEECEDENTS AND FORMS. § 8 stupidity, are of no legal effect ; pleaders, down to the present moment, even in States wherein legislation has endeavored to simplify the averments, persist in inserting them.i And, not speaking of books for local use in particular States, the writer is not aware of any general one of forms for the indictment, wherein this absurd trash does not more or less abound ; though it is less in some small volumes than in the larger. Is there any just reason that we should all shut our eyes as though we were fools, when dealing with matter of this sort? Again, the old forms are largely made up of awkwardly constructed sentences, con- taining thrice the number of words necessary to convey the idea. It might not be safe for one having no knowledge of the criminal law to undertake to reduce these expressions to proper shape. He might use the knife where he should not, and fear to prune where truly the operation was safe. But the adjadications are now suflEiciently full to enable any one who has mastered the subject to do this work, if not in absolute perfection, with reason- ably satisfactory results. Can any man assign a reason why it should not be done ? Hence, — § 8. How in this Volume. — While the present author will ask neither courts nor counsel to rely on his skill, or to accept any- thing as by his authority, he will do, on the authority of the adjudged law, what in the way of improvement seems practically desirable. He will give, for each offence, an approved precedent, not with absolutely all the lumber of the darker periods of our law, but as pruned by modern hands. He will show what in the precedent is certainly unnecessary under the decisions of the tribunals. Having thus obtained a skeleton with the real bones and no false ones, he will proceed to show, as far as each step in the showing can be made certainly safe, how about the muscles and the superfluous fat. In this way, introducing also appro- priate suggestions and references to authorities, we shall pursue our course to the end. And the result will be, that the pleadings prescribed by the common law will appear much less imperfect, while yet not all are without fault, than our " codifiers " and " reformers " commonly find it convenient to assume. Nor yet shall we overlook what legislation has done in the way of real or imaginary improvement. 1 See post, § 42-49. 5 § 11 PBELIMINABIEa. [BOOK I. CHAPTER II. SUGGESTIONS AS TO THE DRAWING OF THE INDICTMENT OB INFOEMATION. § 9. Introdaction. 10-24. Brevity and how promoted. 25-27. Directness and Distinctness of Allegation. 28-36. Practical Methods for drawing Indictment. § 9. How Chapter divided. — We shall consider, I. Practically of Brevity and how it is promoted ; II. Directness and Dis- tinctness of Allegation ; III. Practical Methods for drawing the Indictment. I. Praetieally of Brevity and how it is promoted. § 10. How in Reason. — The purpose of the indictment being to inform the defendant of what is to be produced against him, and guide the court at the trial, — it not being a lecture, a romance, or a poem, — it is, in reason, best when in the fewest and aptest words, with no supei-fluous matter. The rule of rea- son, therefore, is, that it should be in just so many and such terms as will simply accomplish this object, and no ot^er or more. But, — § 11. How in Practice. — While there is nothing in the law forbidding the indictment to be so, and while even the principles of the law require this, the courts are to a great extent neglect- ful of their duty to restrain departures from what is thus obvi- ously just. In Sir James Fitzjames Stephen's late admirable " History of the Criminal Law of England," we are told how it is there. Those who draw the indictment being, or having been, paid for their work in proportion to its length or number of counts,^ they have trained themselves to make it very long. Nor 1 1 Stephen Hist. Grim. Law, 287, note. 6 CHAP. II.J HOW DRAW INDICTMENT. § 12 have they deemed that much information should be conveyed by it to the defendant. " I have heard," he says, " of a very emi- nent special pleader who, when he had drawn a specially long indictment, used to ' shuffle his counts,' so that his opponent might find it, humanly speaking, impossible to understand what the indictment did and did not contain." ^ Again : " Indict- ments for fraudulent misdemeanors sometimes consist of more than a hundred counts, differing from each other almost imper- ceptibly by minute shades of meaning and expression. No one ever reads them except the clerk who compares the draft with the engrossed copy. . . . The judge never looks at the indict- ment unless his attention is directed to some particular point. . . . No undefended prisoner would get the least information from it." 2 The writer of this is a judge of the High Court of Justice, Queen's Bench Division. And he is one of those who habitually try criminal causes, and sit en banc for their review. Said another learned judge : " In my opinion, there cannot be a much greater grievance or oppression than these endless, volumi- nous, unintelligible, and unwieldy indictments. An indictment which fills fifty-seven close folio pages is an abuse to be put down. . . . Most of the persons who are accused of offences are in a line of life which does not enable them even to get a copy, of such a charge from the clerk of assize, who will not part with it without his fees ; and, when the party accused has obtained a copy, the greatest stretch of mind of the most trained persons can hardly, even for days, . . . find out what it is that is really the matter of criminal charge." ^ § 12. A Death-bed Repentance. — The late Joseph Chitty, the elder, famous on both sides of the Atlantic as a special pleader, compiler of precedents and other law books, and barrister, said in the last edition of his last work : " A scientific pleader " — he is speaking particularly of civil causes, but his observations apply equally to criminal — " would not incumber the record with unnecessary statements or complicated counts or pleas. . . . The late Mr. Justice Dampier rarely suffered more than one count to be introduced into a declaration ; but then he took care first well to ascertain the facts, and he already knew the law. Precedents should merely assist, and never govern." He goes 1 lb. 290, note. " Lord Denman, C. J. in O'Connell v. 2 lb. 290, 291. s Beg. 1 Cox C. C. 413, 528, 11 CI. & F. 155. 7 § 13 PEBLIMINAEIES. [BOOK I. on to say how absolutely contrary to this rule the course of things has commonly been.i The whole passage, every word of which is just, has the true ring of a death-bed repentance. He had published collections of precedents, the chief ones whereof constitute the second and third volumes of " Chitty on Plead- ing," and the second, third, and fourth ^ volumes of "Chitty on Criminal Law," incumbered by the common verbosity and mul- tiplicity of counts, and they had been widely circulated and used on both sides of the Atlantic. Did he not put upon the market the wares which purchasers demanded? But in atonement for his sins, if such they are to be deemed, he has left behind him advice which we shall do well to heed. He goes on to say : "As Dr. Johnson apologized for writing a long letter ' because he had not time to dictate a short one, that is, to consider and com- press ; ' so the circumstance of a declaration or other pleading being very lengthy, in general indicates that it was framed has- tily, or that the pleader had not sufficient knowledge of the law, or strength of mind, to enable and embolden him to compress, or still more disreputably that he crowded repetition or useless variations with the sordid and unworthy desire of increasing his own fee."^ Will the writer of the present volume, and his publishers, fail to find a market for it, with a due return for his labor of authorship and their expenditures, because, written with three times the toil which two volumes would entail, it enables the practitioner, both to save himself work, and make the indict- ment what the true spirit of our law and the behests of justice require ? § 13. "With us — the practice is much as it is in England; but it varies with our States. In some of them, the lumber just described is piled high enough to shame even the worst English pleader. In others, the indictment is commonly simple, in one count unless special reasons properly require more, and not unreasonably long. And where verbosity is tolerated it is not eulogized.* In praise of the better course, Tarbell, J. once ob- served in the Mississippi court : " The indictment in this case 1 2 Chit. Gen. Pract. 3d ed. 44. ^ Chit. Gen. Pract. ut sup. 2 Chitty on Criminal Law, as known * See, for example, observations of through our American reprints, is in three Pearson, J. in The State v. Boon, 4 Jones, volumes ; but the English work is in four, N. C. 463, 465. the fourth volume not having been repro- duced for American use. 8 CHAP, n.] HOW DRAW INDICTMENT. § 15 pursues the precise language of the statute ; it presents the issue fairly ; and is commendable for discarding technicalities, which, having long since ceased to serve any useful purpose, cannot be otherwise than mischievous, although honored monuments in the progress of the jurisprudence of the world." ^ § 14. Reform of Abuses. — That the abuses above described need to be reformed no honest man will question ; for not a word in their support can be found in all our books. If there are men to profit by them, still there are none to praise them. The courts can reforpi them if they choose. The draftsmen of the indictments, both in England and this country, are officers of the courts ; compellable to obey, as to their acts connected with judicial proceedings, the judicial commands. Moreover, and if this were not so, the trial court has the power to quash an indictment drawn in a way to perplex or otherwise injuriously burden the defendant; compelling the prosecutor, if he would succeed, to prepare and lay before the grand jury a proper indictment. Or the judge can quash a part of the counts, or order separate trials on the several counts or clusters of them, or both. If he is not moved to do this, he can do it ex officio? Sir James Fitzjames Stephen sets down the evil practice, suffered by the court of which he is a member, among the reasons why Par- liament should enact a Criminal Code. He is silent as to the duty of the judges. One who saw less than he does of the good effects to come from codification, and more of what might result from practical improvements in the administration of the laws which we already have, would be apt to ask whether really a code will, better than the common law, administer itself without proper judicial supervision. Why should not the work of re- form begin, where the neglect to supervise did, on the bench, with those whose duty it has always been to guide the course of justice and especially to protect from oppression persons accused of crime? A code could scarcely give fuller powers than the common law does, and it is difficult to see why the administration of the one may not as well lapse into neglect as of the other. § 15. Exceptions as to Brevity. — (Avoiding Duplicity.) — There are circumstances in which the briefest forms possible would not 1 EUey w. The State, 43 Missis. 397, 421. Proced. I. k 425, 447, 449, 454, 455, 458, 2 All will be found explained in Crim. 758, 759, 764, 766. 9 § 18 PEELIMINABIES. [BOOK I. be the best, and then they should not be practically employed. For example, every charge should be made distinct ; and, if two offences are to be averred against a defendant, both should not be huddled into one count. As to this, the rule of law^ is the rule also of reason. Yet the just course may require more words than would the unjust. Again, — § 16. ni Form, which Court wiU accept. — If the decisions have sustained a short form which really gives the prisoner no suffi- cient information of what is to be proved against him, a just prosecuting officer will either expand further the allegations in the indictment, or voluntarily tender to him a note or bill of the particulars. And if, as in a few instances it has happened, the courts violate constitutional guaranties by sustaining indictments really inadequate, such a prosecuting officer will add what the constitution requires, though the judge should deem it super- fluous ; because he, too, is acting under an oath to support the constitution. Moreover, — § 17. Cases of Legal Doubt — There are cases wherein it is doubtful whether the court will deem a particular averment to be necessary or not ; then it is generally, but not quite always, practically best to introduce it. Especially is this true in those States wherein the State has no appeal from the decision of an inferior judge on a question of law. Inevitably, in such a State, an indictment must be made to pass the scrutiny of the trial court, by whomsoever presided over, or justice will fail. And, in a larger view, " it is," in the words of Pollock, C. B. commonly " better to adhere to precedents than to make experi- ments with how little an indictable offence may be stated.""^ But there are circumstances wherein a far-seeing prosecuting officer will, even against great danger of overthrow, avoid a cum- bersome and ill-constructed precedent in common use, for the chance of establishing a better form for the future, as well as proceeding more justly or more effectively in the individual case, — a question the decision whereof must ordinarily turn on what is special to the particular instance. Finally, — § 18. Doubt on the Proofs. — Where there is a doubt, or room for it, as to what form the proofs will assume at the trial, the considerate pleader will so arrange his allegations as to fit them for any event. This may require more counts than one for what 1 Crim. Proced. I. ^ 432 et seq. ^ Reg v. Webb, 3 Cox C. C. 183, 186. 10 CHAP. II.] HOW DEAW INDICTMENT. §10 is really a single offence, or it may not, according to the circum- stances. No general rule can furnish a complete guide, but the pleader who has thoroughly qualified himself for his work will commonly find the course reasonably plain. While a bungler, for example, will have a count for each manner in which the one offence lastj have been committed, the skilful pleader will call to mind that, — § 19. Offence committed in Different Ways. — If the law per- mits an offence to be committed in different ways, a count is not double, but is good, which charges all the ways, unless repug- nant.i And the pleader, by availing himself of this doctrine, can ordinarily anticipate, in a single count, any and every one of 1 Post, § 21 ; Crim. Proced. I. § 434, 453 ; Stat. Crimes, § 244. Even so good a criminal-law lawyer as Sir James Fitz- james Stephen has, in his zeal to show the necessity of a criminal code, overlooked this principle. He says, that the rule which forbids the indictment to be double has caused very great "prolixity, obscurity, and expense." And he illustrates thus : " A policeman tries to apprehend a bur- glar, who fires a pistol in his face and learning, especially in our commercial communities, is at the time of this writing at its very lowest ebb. This fact places upon the practitioner for the defence a duty as to the law more burdensome than is common in civil causes. It gives him also a special advantage, if he is one of the few who have the wisdom to see and seize it. Almost as of course, though with many exceptions, the prosecuting offi- cer knows little or nothing of the criminal law. And it is the same with the judge. In this condition of things, an able lawyer who will study and learn the criminal law has it in his power to become ordinarily master of the situation in cases of defence. 1 Crim. Proced. I. § 1287 and the places 2 Ante, § 36, question 6, and the places there referred to; Stat Crimes, § 1116. there referred to. » Stat Crimes, § 85 o, 176-178. 19 § 41 . PRELIMINARIES. [BOOK I. One, to occupy this position, must not be content with simply- posting himself up for the several occasions, but he must fam- iliarize himself with the entire law of crimes. Then, in each case, he can go before the court prepared to take advantage of the blunders of the prosecuting officer, and to instruct the judge. As men are most confident of the depth of their knowledge when it is the most shallow, he will be obliged to use special adroitness in the manner of his teachings, and particularly not to appear to teach. The reasons of the criminal law, in all its parts, must have become parcel of his understanding ; and every- thing he propounds or argues should, if possible, be stated on a formula of those reasons. In this way, his mere enunciations will in most instances carry conviction, and the judicial judgment will be quietly borne along to the just conclusions. " But," says one, " the just conclusions are preciselj' what I must avoid if I would save my client." When this is so, the end may sometimes be secured by abstaining from any interruption of the prosecut- ing officer and the court while shaping the law according to their own ideas, or sometimes by referring to expositions of legal doctrine by an incompetent or careless author or judge, or even by following up such reference in an argument on the wrong side. Is this method right? It is not right, and it would deserve severe punishment, for a practitioner to falsify, or to mislead the court. Nor yet, if he could avoid detection for the moment, would it be in the end compatible with his true interests. But it is not his privilege to decide the law of the case, or pass upon the accuracy of what an author or judge has laid down in a book to which the court permits reference ; nor yet is it his duty to help the officials, appointed by the prosecuting public, to convict the client whom he is sworn faithfully to defend and protect. In conclusion, — § 41. Differing Cases. — Since the cases will differ, whut further is to be suggested on the subject of this chapter will be set down under the titles of the several offences in a subsequent division of the present volume. 20 CHAP. IV.] NEEDLESS ALLEGATIONS. §43 BOOK II. COMMOiSr TO ALL OFFENCES. CHAPTER IV. FAMILIAR ALLEGATIONS "WHICH AHE TO BE OMITTED BECAUSE NEEDLESS. § 42. Elsewhere and here. — In other parts of this series, vari- ous common allegations of the indictment have been pointed out as needless ; but, for the convenience of the practitioner, the more familiar ones will be here inserted together. § 43. Force and Arms. — By the ancient common law, the words " with force and arms," vi et armis, to which were commonly added videlicet, cum baculis, eultellis, arcubus, et sagittis, were neces- sary in certain classes of indictments. But a statute of Henry VIII.,^ which is common law in this country, dispensed with them. At first, the courts disagreed as to whether it extended to vi et armis, or only to the partieularization which followed. The wider interpretation prevailed ; and, since nearly a century before the American Revolution, there is reported no English case, and there has never been an American one, wherein the indictment was held ill for the lack of any of these words.^ Besides, there are in most of our States statutes which expressly or by construction render them unnecessary. Still, in practice, our pleaders cling to the expression " with force and arms " as for dear life. Even in States where short forms are provided by legislation, many of the pleaders can no more give them up than their very eyes. They use them even in cases where the ancient 1 37 Hen. 8, c. 8. By its terms it ex- suit, see Sawe v. King, 1 Saund. 81 ; Gould tended only to the "inquisition or indict- PI. 1S7-189. ment." As to the declaration in a civil ^ Crim. Proced. I. § 502, 648, note. 21 46 COMMON TO ALL OFFENCES. [book II. common law did not require them.^ The present author, en- deavoring to stem the prejudice, will omit them from this collection. § 44. Pear of God — Instigated by Devil. — Words which were never necessary, yet were common in the old forms, and are still not banished from our reports of cases and books of precedents, are, that the defendant committed the offence " not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil." ^ Let us try, in this country, to get on without this remnant of a faded-out superstition. § 45. Not regarding Law. — Another allegation, plainly un- necessary and better practically not to be employed, is, that the defendant committed the criminal act " little regarding the laws of this realm or the pains and penalties in the same contained." ' § 46. Bad Disposition. — Many of the forms aver, in varying words, that the defendant was of a bad disposition ; as, " being an evil-disposed person," * " being an evil-minded and cruelly dis- posed person," ^ " being a person of wicked, dishonest, and evil 1 For example, persons are indicted for receiving stolen goods " with force and arms," Commonwealth v. Cohen, 120 Mass. 198; for obtaining money by false pre- tences "with force and arms," People v. Cooke, 6 Parker C. C. 31 ; for betting money. Drew v. The State, 5 Eng. 82, and selling liquor, "with force and arms," Woody V. The State, 32 Ga. 595 ; for hav- ing unlawfully in possession forged paper " with force and arms," Cantor v. People, 5 Parker C. C. 217; for marrying, while having a husband or wife living, another person, "with force and arms," Hayes i). People, 5 Parker C. C. 325 ; for unlawfully keeping for sale intoxicating liquor, The State V. Tracey, 12 R. I. 216, or keeping a disorderly house. Smith v. Common- wealth, 6 B. Monr. 21, or bawdy-house, Thompson v. The State, 1 Texas Ap. 56, or letting a house for bawdry. Smith v. The State, 6 Gill, 425, or exposing the person. The State r. Roper, 6 Dev. & Bat. 208, or unlawfully establishing a lottery, " with force and arms," Holoman v. The State, 2 Texas Ap. 610; for committing open and gross lewdness "with force and arms," The State v. Osborne, 69 Misso. 143; and a clergyman is indicted for celebrating the marriage of a minor, without consent ot 22 parents, " with force and arms," The State V. Willis, 4 Eng. 196. 2 2 Chit. Crim. Law, 319, 321, and multitudes of other places ; The State v. Chandler, 2 Barring. Del. 553 ; The State V. Jeffreys, 3 Murph. 480 ; Crim. Proced. I. § 501 . Mr. Justice Stephen, in his " His- tory of the Criminal Law of England," London, 1883, speaking (Vol. I. p. 286) of the provision in 14 & 15 Vict. c. 100, § 24, that " no indictment for any offence shall be held insufficient for want of the averment of any matter unnecessary to be proved," says : " This did away with the statements that the crime was committed by a person ' not having the fear of God before his eyes,' and, ' at the special insti- gation of the devil.' " It is impossible that this learned writer really believed these words ever to have been essential. The oversight must be attributed to his zeal for codification, to promote which his, in the main, excellent history was written. And see ante, § 19, note. 8 2 Chit. Crim. Law, 321. « lb. 116, 119; Hamilton a. Reg. 2 Cox C. C. 11 ; The State v. Boon, 4 Jones, N. C. 463. « Cowley V. People, 21 Hun, 415, 417. CHAP. IV.] NEEDLESS ALLEGATIONS. § 49 mind and disposition," ^ " being a person of unfeeling and inhu- man disposition," ^ " being a person of envious, evil, malicious, and wicked mind." ^ It is surely not necessary to say that all such expressions are lumber which is better omitted. What if a juror, with mind in a fog similar to the pleader's, and believing the defendant's disposition to be good, while yet he committed the offence, should deem the indictment not proved, and refuse assent to a verdict of guilty ? § 47. In Peace. — Some of the forms aver that the person assaulted or killed was " in the peace of God and the king " ■* or " the State." ^ Yet these expressions are worse than useless.® § 48. other Unneoessary — expressions are — Damage. — " To the great damage " of the person injured ; — Example. — " To the evil example of all others ; " ' — Displeasure of God. — " To the great displeasure of Almighty God." 8 § 49. still others. — The foregoing are specimens of pernicious verbosity in forms too much in use. Other instances are pointed out in " Criminal Procedure " and " Statutory Crimes." The author, in the following pages, will endeavor to do his part toward weeding out the entire tangle of this rubbish. If plead- ers will hereafter help him, the records of our courts will, at least, appear distinct and clean. 1 2 Chit. Crim. Law, 232; Brown o. s Moore v. The State, 2 Ohio State, The State, 2 Texas Ap. 115 ; Mortpn ». 500. The State, 3 Texas Ap. 510. « Crim. Proced. I. § 502 ; II. § 57, 504. "^ Reg. w. Chandler, Dears. 453, 454. ' As, for illustration, in Campbell u. ? Morton V. The State, 3 Texas Ap. Commonwealth, 9 Smith, Pa. 266. 510 ; Kex v. Carlile, 1 Cox C. C. 229. 8 Crim. Prpced. I. § 500, 647 ; II. § 57. * Eeg. V. Sawyer, 2 Car. & K. 101; O'Neill V. Eeg. 6 Cox C. C. 495, 496. 23 § 53 COMMON TO ALL OFFENCES. [BOOK II. CHAPTER V. THE INTEODUCTOKY AND CLOSING PARTS OP THE INDICTMENT OB INPOKMATION AND THE INDORSEMENTS THEREON. § 50-52. Introduction. 53-56. Caption. 57-64. Commencement. 65-69. Concluding Part. 70-72. Indorsements. § 50. In G-eneral. — (Differences in States). — The law of this subject is explained in " Criminal Procedure." While the prin- ciples relating to it are uniform, the practice differs considerably in our States.^ Now, — § 51. Printed Blanks. — Printing promotes accuracy; and, within limits which vary with circumstances, it saves labor. It can be everywhere had. Therefore no judicious prosecuting offi- cer will attempt to get on without blanks whereon are printed the commencement, the concluding part, and the indorsements'of the indictment or information, being the same in all offences. These forms this officer will settle once for all, according to the law and the practice of his particular State. In a compact com- munity, where many indictments are to be drawn, he will have also fuller forms for the more common offences ; such as larceny, burglary, arson, assault and battery, and others practically found desirable. § 62. How Chapter divided. — We shall consider, I. The Cap- tion ; II. The Commencement ; III. The Concluding Part ; IV. The Indorsements. I. The Caption. § 53. In Limited Jurisdiction. — Where the court is of special or limited jurisdiction, so that its authority to entertain the 1 As to the caption and commencement, eluding part, lb. § 647-652 a; as to indorse- Crim. Proced. I. § 653-668 ; as to the con- ments, lb. § 690-704. 24 CHAP, v.] INTEODUCTORT, CLOSING, INDORSEMENTS. § 56 indictment must appear in the record,^ the caption is ordinarily the part of it to which this matter is allotted, and it may be as follows : — State of New York.^ City and County of New York, ss. Be it remembered, that at a Court of General Sessions of the Peace holden at, &c. in and for the city and county of New York, on the first Mon- day of June, in the year of our Lord one thousand eight hundred and sixty- five, before John T. Hoffman, Esquire, Recorder of the said city of New York, justice of the said court assigned to keep the peace of the said city and county of New York, and to inquire by the oaths of good and lawful men of the said county of all crimes and misdemeanors committed or triable in the said county, to hear, determine, and punish according to law all crimes and misdemeanors in the said city and county done and com- mitted. By the oath of John T. McKesson, Foreman [here add the several names of the other grand jurors],'' it was [is^] then and there pre- sented as follows, that is to say.^ § 54. In General Jurisdiction. — Where the court is of superior and general jurisdiction, it is not uncommon for the caption sim- ply to say : — Knox, ss. 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 eighty-one, the jurors, &c.° § 55. In the United States Courts, — the form may, for example, be — In the Circuit 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, the jurors, &c.' § 56. In General. — The foregoing forms are in actual use ; yet 1 Grim. Proced. I. § 657, 663, 1350. Eex v. Brooks, Trem. P. C. 151 ; Eex v. 2 Common and proper, but not neces- Townley, 18 Howell St. Tr. 329, 332 ; Rex sary. Grim. Proced. I. § 383. v. Fearnley, 1 T. R. 316 ; HoUoway v. ' But the names are generally held to Reg. 2 Den. C. C. 287. be unnecessary. Grim. Proced. I. § 665, « The State v. Jackson, 73 Maine, 91 ; 666. The State v. Hurley, 71 Maine, 354; The * Ordinarily "is." As to the distinc- State v. Gonley, 39 Maine, 78; The State tion, see Grim. Proced. I. § 657, 658 and v. Bartlett, 55 Maine, 200 ; Turner v. Gom- note, 1349. monwealth, 5 Norris, Pa. 54; Grim. Proced. 6 Keefe v. People, 40 N. Y. 348. And I. § 665, note. And see Broome v. Reg. 12 see, for forms, 2 Hale P. C. 165 ; 6 Went. Q. B. 834 ; Grim. Proced. I. § 658. PI. 357, 373; 4 Chit. Grim. Law, 189-195, ' United States v. Wilson, Bald. 78; 258 ■ Archb. Grim. PI. & Et. 19th ed. 40 ; United States v. Dawson, Hemp. 643, 644. 26 § 68 COMMON TO XhL OFFENCES. [BOOK U, their insertion here is only suggestiye to the practitioner, who will frame this matter with due regard to the requirements and usages in his own tribunals.^ II. 2%e Commencement. § 57. First. To the Indictment : — May be Short. — A commencement which is not required to supply defects in the caption ^ may be brief. Thus, — § 58. In England. — The common form in England has been from early times, and is, — The jurors of our lady the queen [or lord the king] upon their oath present, that, &c.' "With us — the like form is common, but not universal; namel)', — The jurors of the State of [or of the Commonwealth of , or of the People of the State of ^-- — , or of the United States of America] on their oath [or oath and affirmation] present, that, &c.* Under Statutes. — In a considerable number of our States, statutes have directly or by implication provided the form. It is not the same in all these States, and to transcribe into these pages the various statutes would be useless.^ 1 And see Crim. Proced. I. § 656-659, Commonwealth, 12 Allen, 145; Common- 663-667; Keithler w. The State, 10 Sm. & wealth v. Glover, 111 Mass. 395, 396; M. 192, 196; Mitchell u. The State, 8 Yerg. Commonwealth u. Costley, 118 Mass. 1. 514 ; The State v. Freeman, 21 Misso. 481, Doubtless this short form, which practically 483; Benedict V. The State, 12 Wis. 313; is shoi-t enough, will bear further abridg- Bass 1). The State, 17 Fla. 685; Dowlingu. ment. Thus, where the word "present" The State, 5 Sm. & M. 664 ; Goodloe v, was omitted, it was sustained. The State The State, 60 Ala. 93 ; Carpenter v. The v. Freeman, 21 Misso. 481. And it appears State, 4 How. Missis 163; Woodsides u. to be sufiScient to say, " The jurors for the The State, 2 How. Missis. 655; Mitchell State upon their oath present," &c. The V. The State, 1 Texas Ap. 725, 726 ; Mills State v. Scott, 2 Dev. & Bat. 35. Terri- V The State, 52 Ind. 187; LoveU u. The tory.^ — In a case now before me, where the State, 45 Ind. 550 ; The State v. Zule, 5 indictment was in a court of a Territory Halst. 348. of the United States, the form was : " The 2 Crim. Proced. I. § 660. grand jurors of the Territory of Kansas, s Archb. Crim. PI. & Ev. 19th ed. 26; impanelled and sworn to inquire within 1 Stephen Hist. Crim Law, 276 ; 2 Chit, and for the county of Leavenworth, upon Crim. Law, 1 et seq. ; Rex v. Sanquire, 2 their solemn oaths and affirmations do Howell St. Tr. 743 ; Rex o. Audley, 3 present." Territory v. Reybum, McCahon, Howell St. Tr. 401, 406 ; Reg. v. Lister, 7 134. Perhaps it would be more nicely Cox C, C. 342, 344 ; Reg. v. Rj'land, Law accurate to say, "The jurors of the United Rep. 1 C. C. 99. The same in the colonies. States, in and for the Territory of Kansas, Whelan v. Reg. 28 U. C. Q. B. 2, 7. on their oath and affirmation present." * Crim. Prpced, I, § 668; Jeffries v. 6 For Ulustratjons, consult Cothrjin's 26 CHAP. V.J INTEODUCTOET, CLOSING, INDOESEMENTS. 58 In General. — There are other variations, either of what ia required or what is customary. But, as to all, the forms before given, and a simple reference to cases containing forms, will BufBce.^ Rev. Stats, of 111. p. 408, § 408 ; Ala. Code of 1876, §4824; Reed's Ga. Ciim. Law, 215 ; Garling v. The State, 2 Texas Ap. 44 ; The State v. Mohr, 53 Iowa, 261 ; Com- monwealth V. Stephenson, 3 Met. Ky. 226; McCutcheon v. People, 69 Il^Ol ; Noles V. The State, 24 Ala. 672, 688 ; Perkins v. The State, 50 Ala. 154; Walker v. The State, 35 Ark. 386 ; People v. War, 20 Cal. 117 ; The State v. Davis, 22 Minn. 423. 1 Alabama. — The State v. Bell, 5 Port. 365 ; Reeves a. The State, 20 Ala. 33, 35 ; Noles V. The State, 24 Ala. 672, 688; Lowenthal v. The State, S2 Ala. 589 ; Mc- Guire v. The State, 37 Ala. 161 ; Schuster V. The State, 48 Ala. 199; Anderson v. The State, 48 Ala. 665 ; Caldwell v. The State, 49 Ala. 34 ; Diggs v. The State, 49 Ala. 311; Perkins v. The State, 50 Ala. 154; Sanders u. The State, 55 Ala. 183, 184; Glenn u. The State, 60 Ala. 104. And see Crim. Proced. I. § 665, note. Arkansas. — The State v. Willis, 4 Eng. 196 ; Dixon v. The State, 29 Ark. 165, 167 ; The State v. Hinson, 31 Ark. 638 ; Martin V. The State, 32 Ark. 124; Bradley v. The State, 32 Ark. 704 ; Howard v. The State, 34 Ark. 433, 435 ; Walker v. The State, 35 Ark. 386 ; Bridges v. The State, 37 Ark. 224 ; McClure v. The State, 37 Ark. 426. And see Crim. Proced. I. § 665, note. California. — People v. Saviers, 14 Cal. 29 ; People v. Mills, 17 Cal. 276 ; People v. War, 20 Cal. 117. Georgia. — Long v. The State, 12 Ga. 293. Illinois. — Nixon v. People, 2 Scam. 267 ; Townsend v. People, 3 Scam. 326 ; Fairlee V. People, 11 111. 1 ; McCutcheon v. People, 69 111. 601, 602. And see Crim. Proced. L § 665, note. Indiana. — Dukes v. The State, 11 Ind. 557 ; Mains v. The State, 42 Ind. 327 ; Lovell V. The State, 45 Ind. 550 ; Mills v. The State, 52 Ind. 187; Snyder o. The State, 59 Ind. 105 ; Edwards v. The State, 62 Ind. 34 ; Mitchell v. The State, 63 Ind. 276 ; The State v. Howard, 63 Ind. 502 ; Batterson v. The State, 63 Ind. 531 ; The State V. Stephens, 63 Ind. 542 ; Shepherd V. The State, 64 Ind. 43 ; Howard v. The State, 64 Ind. 516 ; Manheim v. The State, 66 Ind. 65 ; The State v. Stewart, 66 Ind. 555. And see Crim. Proced. I. § 665, note. Iowa. — The State u. Reid, 20 Iowa, 413,417; The State !7. Close, 35 Iowa, 570 ; The State v. Jordan, 39 Iowa, 387 ; The State V. Book, 41 Iowa, 550 ; The State v. Baumon, 52 Iowa, 68; The State v. Mohr, 53 Iowa, 261. Kansas. — Rice u. The State, 3 Kan. 141, 156. Kentucky. — Commonwealth v. Stephen- son, 3 Met. Ky. 226. Maine. — The State v. Conley, 39 Maine, 78 ; The State v. Stevens, 40 Maine, 559 ; The State v. Bartlett, 55 Maine, 200; The State V. Corson, 59 Maine, 137 ; The State V. Smith, 65 Maine, 257; The State v. Smith, 67 Maine, 328 ; The State v. God- dard, 69 Maine, 181 ; The State v. Hurley, 71 Maine, 354; The State v. Jackson, 73 Maine, 91. Massachusetts. — Commonwealth v. Co- hen, 120 Mass. 198; Commonwealth u. Howe, 132 Mass. 250, 251. And see Crim. Proced. I. § 665, note. Minnesota. — The State v. Davis, 22 Minn. 423; The State v. Armington, 25 Minn. 29. Missouri. — The State v. England, 19 Misso. 386; The State v. Freeman, 21 Misso. 481 ; The State v. Ragan, 22 Misso. 459 ; The State v. Cutter, 65 Misso. 503 ; The State v. Osborne, 69 Misso. 143 ; The State V. Hatfield, 72 Misso. 518. And see Crim. Proced. I. § 665, note. Nevada. — The State li. Malim, 14 Nev. 288. New Jersey. — See Crim. Proced. I. § 665, note. New Mexico. — Territory v. Sevailles, 1 New Mex. 119. New York. — Woodford a. People, 5 Thomp. & C. 539 ; People v. Bennett, 37 N. Y. 117, 122 ; Keefe v. People, 40 N. Y. 348 ; People w. Smith, I Parker C. C. 329 ; Peojjle V. Thorns, 3 Parker C. C. 256; People V. Sweetraan, 3 Parker C. C. 358 ; Goodrich v. People, 3 Parker C. C. 622 ; 27 §60 COMMON TO ALL OFFENCES. [book n. §59. Secondly. To the Information:'^ — Variable. — Neither law nor usage has established any one un- varying form. But, — § 60. Common. — Where the attorney for the State proceeds as of right, it will accord with what is common in England and a part of our States to say, after properly entitling the cause : — Be it remembered, that George G. Wadley, Esquire, Attorney-General, &c. [or County Attorney, &c.] who prosecutes on behalf of the State, comes here in person into court, at this term thereof, and for the State gives the court to understand and be informed, that, &c.^ In other States, — the form would vary, but it may be : — George G. Wadley, Esquire, &c., comes here into court, on, &c., and in the name and on behalf [and by. the authority^] of the State, gives this court to understand and be informed.* Didieu v. People, 4 Parker C. C. 593; Cantor v. People, 5 Parker C. C. 217; Hayes v. People, 5 Parker C. C. 325 ; Co- hen y. People, 5 Parker C. C. 330 ; Quin- lan V. People, 6 Parker C. C. 9 ; People v. Cooke, 6 Parker C C. 31. And see Grim. Proced. I. § 665, note. North Carolina. — The State v. Smith, 3 Hawks, 378 ; The State v. Jasper, 4 Dev. 323 ; The State v. Cobb, 1 Dev. & Bat. 115 ; The State v. Davis, 2 Ire. 153 ; The State V. Huntly, 3 Ire. 418 ; The State v. Farmer, 4 Ire. 224; The State v. Tolever, 5 Ire. 452 ; The State v. Clark, 8 Ire. 226 ; The State V. Williams, 7 Jones, N. C. 446 ; The State V. Whitehurst, 70 N. C. 85; The State V. Walker, 87 N. C. 541. Ohio. — Mackey u. The State, 3 Ohio State, 362, 366; Fonts v. The State, 8 Ohio State, 98, 116; Eobbins v. The State, 8 Ohio State, 131, 132; Clarke v. The State, 8 Ohio State, 630; Davis v. The State, 19 Ohio State, 270, 271 ; Egner v. The State, 25 Ohio State, 464, 495. Pennsylvania. — The common form of commencement appears to be : " The grand inquest of the Commonwealth of Pennsyl- vania, inquiring in and for the county of , upon their oaths and solemn afiSrm- ations respectfully do present." But there are slight variations. Commonwealth v. Sharpless, 2 S. & R. 91 ; Sherban v. Com- monwealth, 8 Watts, 212; Comfort v. Commonwealth, 5 Whart. 437 ; Common- wealth V. Jackson, 1 Grant, Pa. 262 ; Hackett V. Commonwealth, 3 Harris, Pa. 95 ; Camp- 28 bell u. Commonwealth, 3 Norris, Pa. 1 87 ; Turner v. Commonwealth, 5 Norris, Pa. 54; Brandt v. Commonwealth, 13 Norris, Pa. 290. Tennessee. — The State v. Saylor, 6 Lea, 586. Texas. — Garling v. The State, 2 Texas Ap. 44; Conner v. The State, 6 Texas Ap. 455, 457; Ferguson v. The State, 6 Texas Ap. 504. Vermont. — See Crim. Proced. I. § 665, note. Virginia. — Johnson v. Commonwealth, 29 Grat. 796. West Virginia. — The State v. Balti- more, &c. Railroad, 15 W. Va. 362; The State V. Lusk, 16 W. Va. 767. Wisconsin. — See Crim. Proced. I. § 665, note United States. — The form varies some- what with the practice in the particular State in which the district is located. And see United States v. Paul, 6 Pet. 141 ; United States v. Mulvaney, 4 Parker C. C. 164; United States v. Wilson, Bald. 78; United States v. Dawson, Hemp. 643, 644. 1 Crim. Proced. I. § 144-147, 712-715. 2 Crim. Proced. I. § 146 ; 2 Chit. Crim. Law, 6 ; Archb. Crim. PI. & Ev. 19 th ed. 116; Rex v. Sfratton, 21 Howell St. Tr. 1045, 1049 ; Rex v. Wilkes, 19 Howell St. Tr. 1382 ;» Rex o. Sutton, 1 Saund. 269 if; Commonwealth v. Feely, 2 Va. Cas. 1 ; Commonwealth v. Stockley, 10 Leigh, 678. 8 Crim. Proced. I. § 668. * People V. McKinney, 10 Mich. 54; CHAP, v.] INTRODUCTORY, CLOSING, INDORSEMENTS. § 64 § 61. Thirdly. Before a Magistrate : — Variable. — The form of the information, complaint, or affidavit, on a proceeding commonly instituted by a private person or a police officer before an inferior magistrate,^ differs in our States. § 62. In England. — Chitty's form for the commencement is : — Middlesex, to wit. The information and complaint of James Johnson, of, &c., taken and made on the oath of the said Johnson, before me, Rich- ard Robinson, Esquire, one of his majesty's justices of the peace in and for the said county, on, &c., who on his oath saith, that, &c. Or,- Middlesex, to wit. Be it remembered, that, on, &c., in, &c., James Johnson, of, &c., in his proper person cometh before me, Richard Robin- son, Esquire, one of his majesty's justices of the peace in and for the said county, and upon his oath maketh complaint, that, &c.^ § 63. With us, — the commencement foUovrs more or less closely these English forms, but varying with the local practice and the tastes of the particular pleader.^ § 64. Fourthly. More Counts than one : — How. — Where there are more counts than one, the commence- ment, unlike the caption which covers the entire indictment, should be repeated at each count. But since it is permissible to refer from one count to another,* this is commonly done in an abbreviated form, thus, — And the jurors aforesaid upon their oath aforesaid do further present.^ Or,- And the attorney as aforesaid, who prosecutes as aforesaid, [in some States adding,^ in the name and by the authority aforesaid], further gives this court to understand and be informed.' Shafer v. The State, 18 Ind. 444; The The State v. Thompson, 44 Iowa, 399; State V. Smith, 13 Kan. 274, 277 ; The The State v. Woulfe, 58 Ind. 17 ; Schmidt State V. Cassady, 12 Kan. 550 ; Walker v. v. The State, 78 Ind. 41 ; Housh v. People, The State, 23 Ind. 61 ; Sneed v. People, 38 75 111. 487. Mich. 248 ; Crim. Proced. I. § 146, note. * Crim. Proced. I. § 429-431. 1 Crim. Proced. I. §148-154, 230-239 o, 5 2 Chit. Crim. Law, 3; The State v. 716-727. McAllister, 26 Maine, 374. 2 4 Chit. Crim. Law, I. « Crim. Proced. I. § 668. » Kinsman v. The State, 77 Ind. 132 ; 7 2 Chit. Crim. Law, 6. 29 § 68 COMMON TO ALL OFFENCES, [BOOK II. III. The Concluding Part. § 65. Diversities in our States. — Under the differing written constitutions and statutes of our States, there are considerable diversities as to what the concluding part of an indictment must contain.! § 66. At Common Law, — the following, not considering now whether anything or what further is required in nuisance and treason,^ is the form : — ' Against the peace [and dignity'] of the State [or Commonwealth, or United States of America *]. On Statute. — Where the indictment is on a statute, the con- clusion is — Against the peace [&c., as above], and contrary to the form of the statute [or statutes ^] in such case made and proyided." Constitutional Forms. — If the constitution prescribes a form of conclusion, the pleader should carefully copy its words.^ § 67. Every Count. — Except where a statute permits otherwise, this conclusion must be attached to each several count.** § 68. The Information — has, to every count, the same conclu- sion as the indictment ; ® to which is added, not necessarily ,i*' but in proper cases, and not to each count, but to the entire informa- tion, a — ^ As to the whole question, see Crim. ler, 9 Cal. 234 ; Cross v. People, 47 HI. 152 ; Proced. I. § 647-652 a. Coggins v. The State, 7 Port 263 ; The 2 lb. I. § 647 ; II. § 863, 864, 897, State v. Click, 2 Ala. 26. 1034. 1 Crim. Proced. I. § 650-652 a. 3 Unnecessary at common law, 2 Hale 8 ib. § 429, 648. P. C. 188 ; but, in some of our States, made ^ lb. § 146, 652 a ; 2 Chit. Crim. Law, necessary by the constitution. Crim. Pro- 6; Archb. Crim. PI. & Ev. 19th ed. 117; ced. I. § 650, 651 ; Cox v. The State, 8 The State v. Smith, 13 Kan. 274 ; Corn- Texas Ap. 254; Calvert v. The State, 8 mouwealth v. Stockley, 10 Leigh, 678; Texas Ap. 538; The State o. Parker, 81 Commonwealth v. Feely, 2 Va. Cas. 1. N. C. 531. lO Sneed v. People, 38 Mich. 248. I have * 2 Chit. Crim. Law, 3-6 ; Archb. Crim. not before me authorities to justify a more PI. & Ev. 19th ed. 71 ; Bex v. Boucher, exact statement. All the English forms Trem. P. C. 150, 151. which I have observed, and a part of the ^ As to when the word should be in the American ones, have the prayer for pro- singular and when in the plural, see Crim. cess. I cannot see, in reason, why process, Proced. I. § 605-607. which issues on motion upon an indict- * Some variations from this form, and ment, may not be awarded in the same abridgments of it, do not render the con- way upon an information. And, especially, elusion ill. lb. § 602-604 ; Whiting v. if the defendant is in custody awaiting the The State, 14 Conn. 487 ; People v. Wink- criminal proceeding, or on bail awaiting it, 30 CHAP, v.] INTEODtTCTOEY, CLOSING, INDORSEMENTS. § 72 § 69. Prayer for Process. — There is no precise form of Words for it, but it may be, following in substance the English forms : — Whereupon the said attorney-general [or district attorney] prays the consideration of the court here in the premises, and that due process of law may be awarded against him the said [defendant] in this behalf, to make him answer to the said State [_or Commonwealth, or People of the said State] touching and concerning the premises aforesaid.' IV. The Indorsements. § 70. In General — Elsewhere. — Under the differing legisla- tion of our various States, there has ceased to be any uniformity in the indorsements required upon the indictment. The leading ones are explained in " Criminal Procedure." ^ There are stat- utes, in some of the States, providing for others.^ § 71. Printing. — The prosecuting ofl&cer should consider care- fully what ones are necessary in his State, and their forms, and have all printed* upon his blanks. As to — § 72. The Method. — There is no particular place upon the blank where the indorsements must, as of law, appear. If the names of the witnesses are required, ample space for them should be provided ; and it will not be incorrect to let them follow, on the indictment, the printed word " Witnesses." As to the short indorsements, it will be specially convenient to put them upon the back, after the paper is folded and ready for the files of the court. A form for them employed in one of the districts of New York is given on the next page as suggestive. In the blank from which it was copied, the district attorney's name is printed, instead of leaving a space for it to be written. But in those States in which he is required to sign the indictment, no reason occurs to the writer why he may not write his name here, as such signing. Where a prosecutor's name is required to be indorsed, or any other short indorsement is provided for by why pray for process which is neither " Crim. Proced. I. § 690-704. needed nor expected? ' The State u. Smouse, 50 Iowa, 43; 1 Archb. Crim. PI. & Ev. 19th ed. 117 ; The State v. Harris, 12 Nev. 414. Crim. Proced. I. § 146 and note; 1 Chit. * Ante, § 51. Crim. Law, 846, 847 ; 2 lb. 6. 31 § 72 COMMON TO ALL OFFENCES. [bOOK H. statute, the officer who prepares the blanks can find a place and method for it on the back. COUNTY OF ALBANY. Court of THE PE O PL E against Indictment: MAYHEM. District Attorney. A TBTTE BILL. Foreman. Filed day of 188 Arraigned day of 188 Plead Guilty. Tried day of 188 32 CHAP. TI.] BODY OF INDICTMENT. § 74 CHAPTER VI. ALLEGATIONS IN THE BODY OP THE INDICTMENT COMMON TO ALL THE OEEENCES. § 73. Introduction. 74-77. Name and Addition of Defendant. 78, 79. Names of Third Persons. 80-90. Time and Place. § 73. How Chapter divided. — We shall consider, I. The, Name and Addition of the Defendant ; II. The Names of Third Per- sons ; III. The Allegations of Time and Place. I. The Name and Addition of the Defendant. § 74. United. — Though the Statute of Additions is not gen- erally in force in our States,^ or legislation has rendered harmless the non-observance of its forms, the pleader may like to see how the allegation under it should be ; namely, — John Jones, late of Chicago in the county of Cook, laborer ; '^ — Or,- John Jones, late of Chicago in the county of Cook, laborer, otherwise called Billy Thompson [late of said Chicago, laborer] ; * — Or,- John Jones [&c. as above], and Jacob Roper, late of said Chicago, clerk, and Jane Roper, wife of said Jacob ; * — Or, where the indictment is against a married woman alone, — 1 Crim. Proced. I. § 672-674. quired. Crim. Proced. I. § 681 ; 1 Chit. 2 1 Chit. Crim. Law, 176 ; 2 lb. 1. Crim. Law, 210, 211 ; 2 lb. 2. 8 The words in brackets are not re- * 1 Chit. Crim. Law, 210, 211 ; 2 lb. 2,3. 3 33 § 77 COMMON TO ALL OFFENCES. [bOOE IL Jane Roper, wife of Jacob Eoper, of Chicago, in the county of Cook, clerk [the husband's addition].' §75. "Late of," &o. — The expression "late of," adding the place of the commission of the offence instead of the actual domi- oil, is sufficient in law, it is convenient, and it is nearly universal in practice both in England and in our States.^ § 76. Name, if known — (Corporation). — How the name is al- leged when known we have just seen.^ It should be the entire Christian and surname, and not the surname and the initial letter of the Christian name ; * with the exception, it would appeaa-; that the initials will suffice where the party has become com- monly known by them.^ How the name of a corporation is to be alleged when indicted we saw in another connection.^ Now, — § 77. Name unknown. — If the name of the defendant is un- known, one practical method is to indict him by a wrong name ; and he cannot avail himself of the defect without disclosing, in advance of his plea to the merits, a name to which he cannot avoid answering.' But ordinarily this is not necessary, and the allegation may be, for example, — One Montgomery, &c. whose given name is to the jurors un- known ; * — Or,- One whose surname is Montgomery, and the initial of hig. Christian name is C, but further it is to the jurors unknown ; ' — Or,- A man who was personally brought before the jurors by the keeper of the prison, and refused to disck)se to them his name, and his name is to them unknown ; " — Or,- 1 2 lb. 2 ; Lasington's Case, Cro. Eliz. 1 Har. & W. 672 ; Anderson v. Baker, 3 750; 2 Hawk. P. C. c. 23, § 124. See Bex Dowl. P. C. 107. V. Hurrell, Eyan & Moody N. P. 296. ^ critn. Proced. I. § 685, 686. 2 I Chit. Crim. Law, 209, 210 ; United « lb. § 682. And see post, § 79. States V. Wilcox, 4 Blatch. 385 ; The State ' lb. § 675 a, 677, 756, 791-793 J Plum- V. Medbury, 3 E. I. 138 ; Ivey v. The State, ley v. The State, 8 Texas Ap. 529 ; Alford 12 Ala. 276; Buckland v. Commonwealth, v. The State, 8 Texas Ap. 545. 8 Leigh, 732 ; The State w. Mulhisen, 69 » Harris v. The State, 2 Texas Ap. 102, Ind. 145 ; Cowley v. People, 21 Hun, 415 ; 106. And see Jones v. The State, 63 Ala. Myers v. People, 26 111. 173. 27. 3 Ante, § 74. 9 And compare with Crim. Proced. L « Masters v. Carter, 4 Dowl. P. C> 577, § 678, 685. M Crim. Proced. I. § 676. CHAP. VI.J BODY OF INDICTMENT. | 80 A woman of medium height and weight, dark features, black hair, and a scar on the left cheek, whose name is to the jurors unknown.' II. The Names of Third Persons. § 78. Additions — are not required to the names of third per- sons,^ except where they constitute an element in the offence. Nor, in general, are they commonly given ; though, quite appro- priately, in special circumstances they are, even where not strictly required. § 79. Names. — When and what names of third persons should be averred is explained in other connections.^ The forms of aver- ment may be such as — Edward Ferguson \or Edward Ferguson, clerk].* Edward Ferguson, Jacob Jones, and John Hubbard. \_Not Ferguson, Jones, & Co.^] Edward Ferguson, Administrator of the estate of the late Richard Hopkinsj deceased. \_Not Richard Hopkins, unless he was living when the offence was committed.^ But it is proper to say], — The body of Richard Hopkins, then lately deceased.'' A certain person whose name is to the jurors unknown.' An adult male white person whose name is to the jurors unknown.' A certain male child then recently born of the said Jane, and not named.'"' The Farmers' and Mechanics' National Bank of Buffalo [a corporation. Or a corporation called, &c.]." III. The Allegations of Time and Place. § 80. United. — In ordinary cases, the time and place are alleged as follows : — 1 And see, further, lb. § 676-680 ; Jus- ' Crim. Proced. II. § 723. tiee V. The State, 17 Ind. 56; Alford o. « Crim. Proced. II. § 725. And see 3 The State, 8 Texas Ap. 545 ; Harwood v. Chit. Crim. Law, 964. Siphers, 70 Maine, 464. ' 2 Chit. Crim. Law, 36 ; People v. 2 Crim. Proced. II. § 506, 718; 1 Chit. Graves, 5 Parker C. C. 134. Crim. Law, 211. * Archb. Crim. PI. & Ev. 19th ed. 49; 8 For example, Crim. Proced. I. § 104, Crim. Proced. II. § 507 ; Edmonds v. The 495, 546-552, 571-573, 581 ; II. § 62, 107, State, 34 Ark. 720. 137-139, 492, 493, 506-511, 718-726, <843, 9 Rye v. The State, 8 Texas Ap. 153. 890, 1006 ;. Stat. Crimes, § 335, 428, 443, •» Crim. Proced. II. § 510. 457, 602, 603, 644, 672, 673, 894, 923, 944, " On principle, and, it is believed, on 1037 1120. tli6 authorities, which still are somewhat * 2 Chit Crim. Law, 21 et seq. indistinct and contradictory, it is sufficient 35 § 82 COMMON TO ALL OFFENCES. [BOOK 11. On the tenth day of June, in the year of our Lord one thousand eight hundred and eighty-three,^ at ^ [the Sfth ward of the city of '] New York, in the county of New York^ [or, in some of our States, at the county of , naming it, and not specifying the iown.^~\ § 81. Time in Continuing Ofiences. — If the offence, though in its nature continuing, admits of being perpetrated on a single day, and so the pleader may charge it either way at his election,^ the writer deems it to be ordinarily the better practice to aver simply one day ; unless a judgment of abatement is sought, and then only the continuing form will suffice. If alleged as on one day, the proofs may still be that it was continuing ; that is, com- mitted on any number of other days, the same as under the other form of allegation.'^ There is an exceptional doctrine to the contrary in Massachusetts ; in which'State, therefore, what is thus advised would not be practicable.^ But however the prac- titioner may regard this suggestion, — § 82. Never to be employed. — The following form, not un- frequently found in the books, and in most circumstances not rendering the indictment bad, either because the uncertain days may be rejected as surplusage,* or because the courts do not deem it necessary to compel absolute accuracy, is not fit for prac- tical use, so long as the language provides what is better : — to state correctly the name of the corpora- Texas Ap. 610 ; The State v. Bo.wen, 16 tion (which is an artificial person, Crim. Kan. 475 ; Wilkinson v. The State, 10 Law, I. § 417), the same as in designating Ind. 372 ; The State v. Mulhisen, 69 Ind. a natural person, without adding the matter 145 ; The State v. Roper, 1 Dev. & Bat. here given in brackets. Crim. Proced. I. 208 ; Woody v. The State, 32 Ga. 595 ; § 682 and notes ; II. § 445, 455, 456 ; Mc- Davis v. The State, 33 Ga. 98 ; Steerman Carney v. People, 83 N. Y. 408, 410, 411 ; v. The State, 10 Misso. 503 ; Norris v. The Noakes v. People, 25 N. Y. 380; Murphy State, 25 Ohio State, 217 ; Henry v. The V. The State, 36 Ohio State, 628 ; Burke v. State, 35 Ohio State, 128 ; Davis v. Cora- The State, 34 Ohio State, 79. monwealth, 13 Bush, 318; Williams r. The 1 Crim. Proced. I. § 389. State, 42 Missis. 328 ; Ncwcomb v. The 2 It is immaterial whether the word State, 37 Missis. 383. here is "at" or "in." lb. § 378. « For example, Stat. Crimes, § 697, 703, 3 Quinlan v. People, 6 Parker C. C. 9 ; 722, 734, 979. People V. Holmes, 6 Parker C. C. 25. Not ' dim. Proced. I. § 392, 393, 397 ; used, except in a few cities such as New Cowley v. People, 83 N. Y. 464, 472, 8 York and Albany. Abb. New Cas. 1 ; The State v. Haley, 52 * People V. Casey, 72 N. Y. 393 ; Bacci- Vt. 476. galupo 0. Commonwealth, 33 Giat. 807; 8 Crim. Proced. I. § 402; Common- McDermott v. People, 5 Parker C. C. 102 ; wealth v. Foley, 99 Mass. 499 ; Common- People V. Sully, 5 Parker C. C. 142. wealth v. Robinson, 126 Mass. 259; Com- 5 Crim. Proced. I. § 370 ; The State v. monwealth v. Elwell, 1 Gray, 463. Martin, 34 Ark. 340 ; Lowe v. The State, 9 Crim. Proced. I. § 388; Cook v. The 4 Texas Ap. 34; Holoman v. The State, 2 State, 11 Ga. 53. 36 CHAP. VI.] BODY OP INDICTMENT. § 84 On the tenth day of March, in the year of our Lord one thousand eight hundred and eighty-three, and on divers other days and times between that day and the day of the [taking of this inquisition, or] finding of this indict- ment.'' §83. Proper Forms. — The pleader can select between the following, with or without slight variations, according to his taste and the nature of the particular case : — On the tenth day of June, in the year of our Lord one thousand eight hundred and eighty-three, and thence continually until [the fourteenth day of August, in the same year, or, what is best in most cases'] the day of the finding of this indictment.'^ On [&c. specifying a day, as above], and on [each day from then until the finding of this indictment,' or] all the other days since, and up to the finding of this indictment.* § 84. " Then and There." — The common rule being that repeti- tions of time and place may be made by "then and there,"" we have not many authorities to the question whether the same will suffice after the allegations in the last two forms. That it will, after the former of them, is reasonably plain ; ^ because there is one unbroken period, and the word " then ' may as well indicate it where it exceeds twenty-four hours as where it does not. On the other hand, if two separate days have been mentioned, " then " can refer to only one ; and, when it is uncertain to which one, the averment will be bad.^ But is the second of the above forms to be interpreted as denoting separate days? Probably not; be- 1 Crim. Proced. I. § 395 ; 2 Chit. Crim. Law, 48 ; 3 lb. 577, 580, 583, 618 ; Common- Law, 39, 40, 47; Commonwealth v. Gal- wealth v. Kendall, 12 Cash. 414; Com- lagher, I Allen, 592 ; Barth o. The State, monwealth v. Belding, 13 Met. 10. Piac- 18 Conn. 432 ; The State o. Thomas, 50 tically, in a strictly continuing offence, and Ind. 292; The State w. Stogsdale, 67 Misso. especially where an order for the abate- 630 ; The State v. Prescott, 33 N. H. 212 ; ment of a nuisance set out was to be asked. The State v. Boling, 2 Humph. 414 ; Smith I should adopt this form, rejecting the V. Commonwealth, 6 B. Monr. 21 ; Com- words in brackets. And I see no reason monwealth v. Ashley, 2 Gray, 356 ; Com- why another form should be preferred in monwealth v. Sullivan, 5 Allen, 511 ; The any case of a continuing offence. State V. Tracey, 12 R. I. 216 ; Rex v. Eus- ^ The State v. Odell, 42 Iowa, 75 ; The sell, 6 East, 427 ; United States v. Lums- State v. Allen, 32 Iowa, 248. den, 1 Bond, 5 ; The State v. Collins, 48 * The State v. Freeman, 27 Iowa, 333. Maine, 217. A similar form, but worse, is. And see Commonwealth i/. Walton, 11 " on, &c., and on divers other days as well Allen, 238 ; The State u. Way, 5 Neb. before as after that day." 2 Chit. Crim. 283. Law, 68, 69, 73 ; Commonwealth v. McClan- 5 Crim. Proced. I. § 407 et seq. ahan, 2 Met. Ky. 8; The State u. Spurbeck, ^ Commonwealth v. Wood, 4 Gray, 11. 44 Iowa, 667. ' 2 Hale P. C. 178; 1 Chit. Crim. Law, 2 Crim. Proced. L § 394; 2 Chit. Crim. 218. 87 § 87 COMMON TO ALL OFFENCES. [BOOK II. cause each day consists of a full twenty-four hours, and so this form also discloses no break. Still, there are various ways of avoiding the objection. In an indictment with no other specifi- cations of time, the following will be plainly adequate : — During the time [^or times] aforesaid.^ §85. Day of Week — (Sunday). — Most of the indictments wherein the day of the week must be alleged^ are, upon statutes, for violations of the Sabbath, Sunday, or Lord's Day, as the expression may be. It is practically best to employ the statutory term. And, where it is immaterial during what part of the twenty-four hours the act is done, the form may be, — On [&c. as in ordinary cases,^'\ being Sunday [or being the Sabbath, or being the Lord's Day, or being the Lord's l5ay commonly called Sunday, or being the first day of the week commonly called Sunday].^ § 86. Hour of Day of Week. — If the hour, as well as the day of the week, or otherwise the part of the day, is also material,^ the expression will likewise preserve the statutory terms. It may, for example, be : — On the fourteenth day of July, in the year of our Lord one thousand eight hundred and eighty-three, being Saturday, and after the hour of six o'clock in the afternoon of said day * [or being the Lord's Day, and between the midnight preceding and the midnight succeeding the said day.'] Or, there may be circumstances in which the allegation sup- plementing that of the day of the week should be, — During the time of divine worship.' § 87. Night. — If — as, for example, in burglary — the crime, or the degree of it for which a special punishment is sought to be inflicted, can be perpetrated only in the night, the indictment must lay it as in the night of the day.^ And it is practically the 1 3 Chit. Crim. Law, 577. And see lb. Railroad, 15 W. Ya. 362 ; Bridges u. The 664-667. State, 37 Ark. 224; Reg. v. Cleworth, 4 2 Crim. Proced. I. § 399. B. & S. 927 ; Commonwealth v. Crowther, 8 Ante, §80. 117 Mass. 116. * 2 Chit. Crim. Law, 21, 25, and note; 5 Crim. Proced. I. § 399. 3 lb. 672; The State u. Parnell, 16 Ark. 6 Commonwealth v. Colton, 8 Gray, 506 ; Eitel v. The State, 33 Ind. 201 ; Car- 488. yer v. The State, 69 Ind. 61 ; Albrecht v. "< Commonwealth v. Wright, 12 Allen, The State, 8 Texas Ap. 313; Archer v. 187. The State, 10 Texas Ap. 482 ; The State v. 8 2 Chit. Crim. Law, 27, 28. Meyer, 1 Speers, 305; The State v. Helgen, 9 Crim. Proced. I. § 399 ; 2 lb. § 131 ; 1 Speers, 310 ; The State v. Baltimore, &c. Hall v. People, 43 Mich. 417. 38 CHAP. TI.] BODT OP INDICTMENT. § 89 safer way, and in some eircumstances necessary, to add the hour, which may be, and commonly is, preceded by the word "about."i Thus,— On the first day of June, in the year of our Lord one thousand eight hundred and eighty-three, about the hour of one in the night thereof.^ § 88. Negativing Limitations Bar — When the offence appears, prima facie, to be barred by the Statute of Limitations,^ and it is desirable to negative the bar,^ the matter should be alleged in accordance with the statutory terms. There are various methods ; as, for example, follow the setting out of the offence in the ordinary way by — After the commission of the said offence, as aforesaid, the said A [one of the defendants] was absent from the State for the period of five months, to wit, from, &c. to &e. ; and the said B [another defendant] concealed himself from the aforesaid time of its commission for the space of two years until, &c. [but keeping within the terms of the particular statutory exception.]' Or, while the dates show no bar, if the pleader desires to fore- stall suspicion thereof, though unnecessarily, he may set forth the time of the offence as follows : — On [&c. laying the time in the ordinary way], the same being within ten days next before the [presenting of this complaiift, or^ finding of this indictment.' § 89. On High Seas and Abroad. — There are various distinc- tions as to what will give jurisdiction to the courts of the United States over offences committed on the high seas and elsewhere outside of our territorial limits.' And the rule for the indictment is, that it must lay the place and the crime in a way to make the 1 Crim. Proced. II. § 131-133 a. Wis. 217 ; The State v. Jones, 10 Iowa, 2 3 Chit. Crim.^ Law, 1117 ; The State 206 ; The State v. Hayden, 45 Iowa, 11. V. Clark, 42 Vt. 629 ; The State v. Jordan, " Stat. Crimes, § 257-267. 75 N. C. 27 ; Lyons v. People, 68 III. 271 ; » Crim. Proced. I. § 405 ; Stat. Crimes, Commonwealth v. Taylor, 5 Binn. 277 ; § 264. Eex V. Jones, 1 Leach, 4th ed. 537 ; Rex v. ^ Ulmer u. The State, 14 Ind. 52 ; Stat. Compton, 7 Car. & P. 139 ; Eex v. Turner, Crimes, § 261 b, 261 c ; The State v. Meyers, 6 Howell St. Tr. 565 ; Johnson v. Com- 68 Misso. 266 ; Hansford u. The State, 54 monwealth, 29 Grat. 796 ; The State v. Ga. 55. Bartlett, 55 Maine, 200 ; Edwards v. The « Eeg. v. Cleworth, 4 B. & S. 927. State, 62 Ind. 34 ; Bradlfey v. The State, 7 See, in connection with the statutes, 32 Ark. 704; Hamilton v. The State, 11 Crim. Law, I. § 109-123, 136-144, 182-186, Texas Ap. 116 ; Hagar v. The State, 35 201, 202. And see post, § 879, note. Ohio State, 268 ; Powell v. The State, 52 39 §90 COMMON TO ALL OFFENCES. [book II. jurisdiction, equally with the wrongful act itself, prima fade appear.' Every allegation should conform to the combined law and facts of the individual case ; for example, the following, when thus conforming, is correct : — Upon the high seas, out of the jurisdiction of any particular State, in and on board a certain ship or vessel of the United States [the name whereof is to the jurors unknown, or^ named the Mary Ann.^ § 90. Other Special Places. — When, in Other cases, a special locality is an element in the offence, it must be alleged. The occasions for the application of this rule are various, but at- tended by no such difficulties as to require forms to be given here.^ 1 Grim. Proced. I. § 45 et seq., 325, 364- 376, 381, 384. ^ United States v. Holmes, 5 Wheat. 412; United States v. Moultou, 5 Mason, 537 ; United States v. Palmer, 3 Wheat. 610 ; United States v. Plumer, 3 Clif. 28 ; Keg. V. Keyn, 13 Cox C. C. 403 ; Reg. v. Serva, 2 Car. & K. 53, 1 Cox C. C. 292 ; Keg. V. Menham, I Post. & F. 369 ; Kex v. Hindmarsh, 2 Leach, 4th ed. 569 ; Rex v. Amarro, Russ.^ & Ry. 286 ; Rex v. Kidd, 14 Howell St. Tr. 123, 130. Committed in a Foreign Country, — see Reg. v. Sawyer, 2 Car. & K. 101. 40 8 Harris v. The State, 50 Ala. 127; United States v. Jackson, 4 Cranch C. C. 483 ; The State v. Raster, 35 Iowa, 221 ; Rex V. Pedly, 1 A. & E. 822 ; Rex v. White, 1 Bur. 333 ; Rex v. Brooks, Trem. P. C. 195 ; Reg. v. Mutters, Leigh & C. 491, 10 Cox C. C. 6 ; The State v. Hazle, 20 Ark. 156 ; Commonwealth v. Haynes, 2 Gray, 72 ; Commonwealth v. Goodnow, 117 Mass. 114; Commonwealth v. Wentworth, Brightly, 318; Commonwealth v. Waters, 11 Gray, 81. Place, in State, under Jurisdiction of United States, — United States V. Paul, 6 Pet. 141. CHAP. VII.] ALLEGATION OP PREVIOUS OFFENCE. CHAPTER VII. THE ALLEGATION OF A PBEVIOTJS OFFENCE RENDERING THE PRESENT MORE HEAVILY PUNISHABLE. § 91. In General. — As seen elsewhere, the statutes making a second or third offence punishable more heavily than the first are in terms quite diverse. Each practitioner, therefore, should specially note and follow what is enacted in his own State. But. in every State the prior offence or conviction must in some form be alleged ; for it is a fact indispensable to the heavier punishment to be inflicted.^ Now, — § 92. Prior Conviction. — If, by the terms of the statute, or by its interpreted meaning,^ there must be a conviction of the prior offence, either with or without sentence thereon,^ before the second is committed, or before the prosecution therefor is begun, the fact to be alleged is, it is perceived, not in pais, but of judicial record. So that we are confronted with the question, which will several times arise in this volume, and upon which the authorities appear to be a little confused and uncertain, — § 93. How is a Record Tact to be Alleged? — On a question like this, the rules in criminal and civil causes are the same.* In early times, in both, pleaders commonly set out record facts in #fche plethoric terms of the extended record ; ^ and so, in practice, they often do still, even where it is certain that so great fulness is not required. But some of the old cases have been overruled ; and at present, and for a long time past, the prevailing doctrine in our States and in England has been and is, that a record fact 1 Grim. Law, I. §959-965; Stat. Crimes, = Stat. Crimes, § 348; Crim. Law, L § 981, 1044 a; Commonwealth v. Harring- § 963. ton, 130 Mass. 35 ; Johnson v. People, 55 ^ Crim. Proced. I. § 320, 321, 323, N. Y. 512 ; Larney u. Cleveland, 34 Ohio 325. State, 599. * Crim. Proced. 11. § 906 ; Pitt v. Knight, 2 Stat Crimes, § 240 ; 1 Hale P. C. 685, 1 Saund. 86. 686 ; ante, § 32. 41 §93 COMMON TO AlJi OFFENCES. [book n. is not distinguishable from any other ; and, like one resting in oral proofs, it may be alleged in any apt phrase which, in a man- ner not creating a variance,^ fully covers the law relied on, and gives the other party adequate information of what he is to answer ; rejecting such collateral and related facts as, by reason of their connection with those alleged, are indispensable parts of the evidence.^ For example, a declaration in debt on a judg- ment may simply aver that, at a term and court named, the plaintiff, by the judgment for by the consideration] of the said court, recovered against the defendant a sum specified, &c., for, &c. without any full setting out of the record.^ So, in a suit for malicious prosecution, the record of the proceeding complained of and its termination may be similarly described in brief.* Where the record is of a court of inferior jurisdiction, the allega- tions must also show the jurisdiction ; but on the question of the form and extent of them the authorities are discordant.^ Of course, within this doctrine, there may be circumstances in which 1 Ducommun v. Hysinger, 14 111. 249; Noyes v. Newmarch, 1 Allen, 51 ; Gulick V. Loder, 2 Green, N. J. 572 ; Hunt v. Middlesworth, 44 Mich. 448; Weber v. Flckey, 52 Md. 500. 2 Saund. 6th ed. by Wms. 91 a, note, and the cases there cited ; I Chit. PI, 370 ; 2 lb. 482 et seq. ; Grim. Proced. II. § 346, 888, 897, 902, 904, 905, 911, 941, 943, 945, 1051; Rex v. Brooks, Trem. P. C. 175; Chittenden v. Catlin, 2 D. Chip. 22 ; Bliz- ard V. Kelly, 2 B. & C. 283 ; Walker v. Play, 22 Ark. 103 ; Hamilton v. Lyman, 9 Mass. 14,,17 ; Leland v. Kingsbury, 24 Pick. 315 ; Peebles v. Kittle, 2 Johns. 363 ; La- throp V. Stuart, 5 McLean, 167. 8 7 Went. PI. 79 et seq, ; 1 Chit. PI. 370, 371 ; Caldwell v. Richards, 2 Bibb, 331 ; Central Bank v. Veasey, 14 Ark. 671. < 8 Went. PI. 316; 2 Chit. PI. 607; Peppet V. Hearn, 5 B. & Aid. 634 ; Gregory V. Derby, 8 Car. & P. 749; Leigh v. Webb, 3 Esp. 165 J Hughes v. Ros.s, 1 Stew. & P. 258; Bacon v. Towne, 4 Cush. 217 ; Mills V. McCoy, 4 Cow. 406 ; Richards v. Foulks, 3 Ohio, 66 ; Johnson v. Browning, 6 Mod. 216. 5 Richardson v. Hickman, 22 Ind. 244 ; Reeves v. Townsend, 2 Zab. 396 ; Van Etten V. Hurst, 6 Hill, N. Y. 311 ; People v. Wes- ton, 4 Parker C. C. 226 ; Dakin v. Hudson, 42 6 Cow. 221 ; Bowman v. Russ, 6 Cow. 234; Holden v. Scanlin, 30 Vt. 177; Roys v. Lull, 9 Wis. 324 ; Currie v. Henry, 2 Johns. 433 ; Moseley v. White, 1 Port. 410 ; Beans v. Emanuelli, 36 Cal. 117; Wormer v. Smith, 2 Ind. 235; Rowley v. Howard, 23 Cal. 401. In 1 Saund. Wms. ed. 91 a, notes, the English doctrine is stated thus; "In pleading the judgments even of inferior courts, whether of record or not, it is now held not to be necessary to set out the cause of action, or that the defendant be- came indebted within the jurisdiction of the court ; but it is sufficient to say that, at a certain court, &c. held at, &c. A. B. levied his certain plaint against C. D. in a certain plea of trespass on the case or debt, &c. (as the case may be), for a cause of action arising within the jurisdiction of the court, and thereupon such proceedings were had that afterwards, &c. it was con- sidered by the said court that the said A. B. should recover against the said, &c." Referring to Rowland v. Veale, Cowp. 18, which also was recognized in Belk ?;. Broadbent, 3 T. R. 183, 185. This is the doctrine of a part of the American courts ; and it is submitted that, in reason, no fur- ther allegation of jurisdictional facts should be required. CHAP. VII.] ALLEGATION OF PREVIOUS OFFENCE. § 94 ithe exact words of 3, judicial recprd must be set out, just as there are in which oral words must be. An illustration of the latter is the action for slander ; ^ of the former, the plea of former acquittal or conviction.^ Hereupon — § 94. Prior Conviction, again. — Some appear to have deemed that a prior conviction for one offence, when charged in an indict- ment as ground for a heavier punishment of a subsequent one, must be set out in the same full and exact way as a former con- viction of the same offence when pleaded in bar of a second indictment for it. On this idea rests the form next to be given. In any view, the jurisdiction of the convicting tribunal ought, if an inferior one, to be duly averred.^ And there is doubtless no better practical method of doing this than by setting out what- ever caption the prior record necessarily contains.* Where, besides the verdict or other conviction, the sentence is made also by law necessary to the heavier punishment, it must be averred. And so must anything else which the statute renders thus material.^ The following, to be varied with the varying laws proceeded on, will suffice for illustration : — The jurors [&c. ante, § 58], that heretofore, to wit, at a Court of Gen- eral Sessions of the Peace holden in the city of New York, in and for the city and county of New York, on the sixth day of July in the year of our Lord one thousand eight hundred and fifty-three, before Welcome R. Beebe, Esquire, city judge and justice of the said court assigned to keep the peace of the said city and county of New York, A [ante, § 74], by the name and description of B [ante, § 74], was in due form of law tried and convicted of forgery upon a certain indictment then and there depend- ing against the said A, by the name and description aforesaid ; for that he, on [&c. setting out the entire former indictment] ; and therefore it was considered by the said court then, that the said A, otherwise called B^ should be imprisoned in the State prison for the terra of eight years, as by the record thereof doth more fully appear. And the jurors aforesaid, now here sworn upon their oath aforesaid, do further present, that the said A, otherwise called B, having been so convicted of forgery, and having been duly discharged and remitted of such judgment and conviction, afterward, 1 Gutsole V. Mathers, 1 M. & W. 495, 2 Crim. Proced. I. § 808, 810, 814-816. and the eases there referred to ; Wormouth ^ Ante, § 93 ; Crim. Law, L § 962. ». Cramer, 3 Wend. 394 ; Taylor v. Moran, Query whether the dicta in People v. Pow- 4 Met. Ky. 127 ; Watson v. Musick, 2 Misso. ers, 2 Seld. 50, do not go too far. 29 ; Parsons v. Bellows, 6 N. H. 289 ; Bas- * Ante, § 53-56. sett V. Spofford, 11 N. H. 127. The rule « Stevens v. People, 1 HiU, N. Y. 261. is somewhat different in Massachusetts. Lee V. Kane, 6 Gray, 495. 43 § 95 COMMON TO ALL OFFENCES. [BOOK II. to wit, on [&c. proceeding to set out the second offence precisely as if there had been no first].* § 95. Further as to which. — This particularity seems to have been deemed necessary in New York ; and in England prior to the enactment of 7 & 8 Geo. 4, c. 28, § 11, in the year 1827.^ In reason, the distinction under the common-law rules is as fol- lows. The plea of autrefois acquit or autrefois convict should set out accurately and fully the former indictment ; because the identity of the two offences is the very gist of it, and such iden- tity cannot otherwise be made duly to appear. But if a statute simply declares a second conviction of forgery more heavily punishable than the first, no question of identity arises, and it is sufficient to allege the first in the briefest words which will ade- quately inform the defendant of what he has to answer. Not so was it under 5 Eliz. c. 14.^ That statute created certain specific forgeries ; and, being silent as to others, left them punishable at the common law.* Then, in § 7, it rendered more heavily penal a forgery of the specified kind when committed by one who had been before " convicted or condemned of any of the offences aforesaid, by any of the ways and means aforesaid ; " not, the reader will note, convicted or condemned of any forgery, but of any of the forgeries particularized. Thereupon Hale well observes : " The indictment for a second offence must recite the record of the first conviction, that it may appear to he a con- viction of such a forgery as is within the statute,"^ — a reason which shows the like recital not to be necessary under statutes in the terms common in our States. Let the following, therefore, stand as an illustration of what is believed to be ordinarily suffi- cient with us, when so the interpreted^ statute is covered : — The jurors [&c. ante, § 58], that A [&c. ante, § 74], on, &c. at [&c. ante, § 80], was, by the name of A, &c. of, &c. duly convicted before Eichard Roe, a justice of the peace having then and there competent 1 This is the form in Cantor v. People, ^ See the places cited ante, § 94. 5 Parker C. C. 217. For other like forms, « Crim. Law, II. § 549-553. see People v. Butler, 3 Cow. 347 ; Vincent * lb. § 521 ; 1 Hawk. P. C. Curw. ed. V. People, 5 Parker C. C. 88, 15 Abb. Pr. p. 267 et seq.; Rex v. Ward, 2 Ld. Raym. 234; People v. Caesar, 1 Parker C. C. 645 ; 1461, 2 Stra. 747 ; Newman's Case, 3 Leon. Gibson v. People, 5 Hun, 542; Archb. 170. Forms (Am. reprint of 1828), 143, 1 52, 264 ; '1 Hale P. C. 686. and see p. 295, 296 ; Reg. v. Page, 2 Moody, 6 Ante, § 32, 92. 219, 9 Car. & P. 756. 44 CHAP. VII.] ALLEGATION OP PEEVIOTJS OFFENCE. § 97 authority in the premises, of the crime of drunkenness committed by the voluntary use of intoxicating liquor ; ^ and, after said conviction, he, the said A, on, &c. at, &c. [proceeding to set out the second offence the same as if there had been no other].'' § 96. Simplified by Statute. — In some of our ^tates, and in England, statutes have permitted or required modifications of the common-law form. An English form under the later stat- utes^ is the following : — That A, &c. on, &c. [setting out the second offence in the ordinary way, as though there had been no other. Then proceed] : And the jurors aforesaid upon their oath aforesaid do further present, that heretofore and before the commission of the felony hereinbefore charged, to wit, at [de- scribing the court wherein was the first conviction], on [adding the date], the said A was convicted of felony.* § 97. Information for Further Sentence. — When the proceeding is by information, while the prisoner is undergoing his punish- ment under the second conviction had without reference to the first,'^ the form, if so the statutory terms are covered, may be as follows : — Be it remembered [&c. as at ante, § 60], that at [&c. setting out the court, the time, and the previous conviction and sentence, and the under- ^ By the statute upon which the form (see Hopkins v. Commonwealth, 3 Met. 460 ; here given is supposed to be drawn, "any Wilde v. Commonwealth, 2 Met. 408), if person who shall be guilty of the crime of there has been one, is matter of defence, drunkenness, by the voluntary use of any 1 Chit. PI. 371 ; 1 Saand. Wms. ed. 330, intoxicating liquor, shall, for the first note ; Masterson v. Matthews, 60 Ala. 260 ; offence, be punished, &c., and, for any like Stroup v. Common^vealth, 1 Eob. Va. 754. offence committed after the first conviction, And indictments, omitting these words, shall be punished," &c. R. S. of Mass. have been sustained. Reg. v. Martin, 11 c. 130, § 18. Cox C. C. 343; Reg. v. Page, 2 Moody, ^ I have here, in some degree, followed 219, 9 Car. & P. 756 ; Reg. v. Clark, Dears, the form in Commonwealth v. Miller, 8 198, 6 Cox C. C. 210, 3 Car. &K. 367. In Gray, 484. See Stat. Crimes, § 981. And Reg. v. Christopher, Bell, 27, 8 Cox C. C. see Davis Prec. 39 ; The State v. Gorham, 91, the conviction was quashed simply be- 65 Maine, 270; The State v. Dolan, 69 cause of a defect in the evidence. For Maine, 573 ; The State v. Volmer, 6 Kan. further forms under the modern English 379. statutes, see 2 Bum Just. 28th ed. Felony, » Crim. Law, I. § 964. vi. ; Mat. Crim. Law, 483 &c. Nos. 161, 220, < Archb. Crim. PI. & Ev. 19th ed. 1033. 225, 261 ; 6 Cox C. C. App. 6; Reg, v. This form, in Archbold, proceeds further Martin, supra ; Reg. v. Christopher, supra ; to say: "which said conviction is still in Reg. w. Garland, 11 Cox C. C. 224; Reg. full force, strength, and effect, and not in v. Clark, supra ; Reg. v. Thomas, Law the least reversed, annulled, or made void." Rep. 2 C. C. 141 , 13 Cox C. C. 52 ; Reg. v. But plainly this allegation is not necessary; Fox, 10 Cox C. C. 502; Reg. r. Byrne, 4 for the indictment is required to set out Cox C. C. 248. only a prima facie case, and the reversal ^ Crim. Law, I. § 959. 45 § 97 COMMON TO ALL OFFENCES. [BOOK II. going of the sentence if the statute renders it material]. And that after- ward, at [&c. setting forth the second conviction and sentence in the same' way^ ; in execution of which last-mentioned sentence the said [defendant] is now confined in the State prison, at, &c. And, further, that [if by the statute material], at the time of the finding and the trial of the indictment whereon was rendered the last-mentioned conviction and sentence, it was not known either to the grand jury or ^ to the attorney-general that the said [defendant] had been before convicted and sentenced as aforesaid. Wherefore the said attorney-general prays that the said [defendant] may be brought before this honorable court, and receive the further sentence by the statute in such case provided." 1 The conjunction here should be "or," 2 Boss's Case, 2 Pict 165; Common- nol "and," within the rule stated Crim. wealth v. Mott, 21 Pick. 492. Proced. I. § 591 ; Stat. Crimes, § 1043. 46 CHAP, tin.] AGAINST EESPECTIVE PAEflClPANTS. . § 100 CHAPTER VIII. THE FOEMS OP ALLEGATION AGAINST THE EESPECTIVE PAK- TICIPANTS IN ONE OFFENCE. § 98, 99. Introdnction. 100-112. The Attempt. 113-118. Principals and Accessories in Felony. 119-122. Like F'articipants in other Crimes. 123-127. Compounding. 128-130. Misprision. § 98. Scope of Chapter. — The " Diagram of Crime " in " Crimi- nal Law " ^ will, at a glance, convey a better idea of the scope of this chapter than a long explanation here would do. It appears in the vertical and nearly vertical lines, disregarding the hori- zontal. Beginning at the left hand and working to the right, — § 99. How Chapter divided. — We shall consider, I. The At- tempt (represented by A B P) ; 11. The Principals of the two Degrees and the two Accessories in Felony (represented by so much of B F L N O P as pertains to felony) ; III. The like Participants in other Crimes (represented by the rest of B F L NOP); IV. Compounding (represented by F G K L) ; V. Mispiision (represented by G H K). I. The Attempt? § 100. In General and how Indictment. — An attempt consists of the two elements of an intent to commit a substantive offence, and a sufficient act done pursuant thereto yet falling short of the consummation meant.' And whether the wrong intended is treason, felony, or misdemeanor, the attempt is at the common law misdemeanor ; but, in some of our States, there are statutes 1 Crim. Law, I. § 602. practice, and evidence, see Crim. Proced. 2 For the law of attempt, see Crim. II. § 71-97. Law, I. § 723-772 a ; for the pleading, » Crim. Law, L § 727-729. 47 § 105 COMMON TO ALL OFFENCES. [BOOK II. making particular attempts felony .^ The indictment, therefore, is required simply to set out, in due form, the specific intent, and the act done pursuant thereto. The particulars of the sub- stantive offence meant need not be given ; because, not having been executed, there are no particulars.^ Where the attempt is felony, the word " feloniously " should under the common-law rules be inserted in the proper place ; ^ and, where the indictment is on a statute, the statutory terms should be duly followed.* But — § 101. Local Differences. — There are, on this subject, differ- ences in our States, requiring the practitioner to acquaint him- self with what is special to his own State. Thus, under the common-law rules, a count for a substantive felony and another for an attempt to commit it should not be inserted in one indict- ment, because felony and misdemeanor cannot at common law be joined ; but such joinder is permissible under the present English statutes and those of many of our States.^ And, — § 102. Count for Attempt. — Wherever the joinder is permis- sible, the pleader should take the precaution in all cases wherein by any probability the occasion for it may arise, to add to the counts for a substantive felony one for the attempt ; or otherwise so to frame the allegations that there may be a conviction for the latter should the proofs of the former come short of showing its consummation. Now, — § 103. Conspiracy, — or some forms of it, may be properly regarded as attempt." But our books do not treat of it under this head ; so, passing it by, — § 104. Three Sorts. — There are, distinguishable as to the in- dictment, three sorts of attempt. They are. First, Solicitations ; Secondly, The doing of what is in itself indictable, meaning it for a step in a heavier offence the consummation whereof fails ; Thirdly, Acts in themselves less reprehensible, yet intended for steps in a crime which is not completed." § 105. First. Solicitations:^ — 1 lb. § 772. 6 lb. I. § 445, 446, 450, 451 ; Crim. 2 Reg. V. Quail, 4 Tost. & F. 1076 ; Law, I. § 809. Commonwealth v. Doherty, 10 Cush. 52; ' Crim. Law, II. § 191 et seq. Crim. Proced. II. § 76, 87. 7 Crim. Proced. II. § 73 et seq. ' Crim. Proced. I. § 533-537. .8 lb. § 74-76. * And see Crim. Proced. I. § 608-612 ; II. § 74-93. 48 CHAP. VIII.] AGAINST RESPECTIVE PARTICIPANTS. § 107 Described. — One, by soliciting another to commit a crime, does the full act which would cause him to be an accessory before the fact in felony, or a principal in treason or misde- meanor, should the other do it. If the latter declines, or en- deavors and fails, the former is not thereby made innocent ; this interruption of his plans simply renders it impossible he should be held as a principal, or as an accessory before the fact, in a substantive offence. His guilt has assumed the form of attempt.^ Hence — § 106. How the Indictment. — The solicitation, which in this case is the act, is averred in the same or equivalent words ^ as in the indictment against an accessory before the fact. The setting out of the substantive offence intended may, as already explained, be less minute than is required in a charge of such offence as actually committed.^ There is no one model whereon the alle- gations must necessarily be framed to be adequate ; but the fol- lowing, for example, will be found simple and plain : — That A, &c. [ante, § 74-77], on, &c. at, &c. [ante, § 80], intending to procure and cause [state the substantive offence meant], did then and there * [feloniously, &c.* ] solicit and incite one X to [state what it was that X was solicited to do] ; against the peace, &c. [ante, § 65-67].° § 107. Particular Offences. — Solicitations to particular offences 1 Crim. Law, I. General Introduction, Howell St. Tr. 359, 360 ; Reg. «. Calling- xxxv-xxxvii, in the notes; § 675, 767- wood, 2 Ld. Eaym. 1116, 6 Mod. 288 ; Rex 768 d, 772 a. v. Higgins, 2 East, 5 ; Rex v. Petitt, Jebb, 2 Post, § 114-117. 151 ; Rex v. Fuller, 2 Leach, 4th ed. 790 ; ' Ante, § 100. Reg. f. Welham, 1 Cox C. C. 192 ; Reg. * These words "then and there" are v. Gregory, Law Rep. 1 C. C. 77, 10 Cox quickly written and occupy but little space ; C. C. 459 ; Reg. v. Ransford, 13 Cox C. C. so I insert them for caution. Yet I do not 9, 11 Eng. Rep 363 ; Reg. v. Most, 7 Q. B. think that, in this form of allegation, they D. 244, 14 Cox C. C. 583, 585 ; Reg. v. are necessary, though a slight change in O'Callaghan, 14 Cox C. C. 499; Reg. v. the form might render them so. Common- Clement, 26 U. C. Q. B. 297. wealth V. Doherty, 10 Cush. 52; Crim. Maine. — The State t7. Ames, 64 Maine, Proced. I. § 408, 413 ; II. § 57. 386. ' Say "feloniously" where the attempt Massachusetts. — Commonwealth v. Ja- is felony. Ante, § 100. And, if the in- cobs, 9 Allen, 274. dictment is on a statute, whether the at- Michigan. — People v. Thompson, 37 tempt is felony or misdemeanor, add the Mich. 118. statutory adverbs, adjectives, and the like. New York. — People o. Bush, 4 Hill, 6 For forms, see 2 Chit. Crim. Law, N. Y. 133. 139, 480, 481, 482, 506, 542, 544; 3 lb. Pennsylvania. — Smith v. Common- 684, 693, 992, 993, 1129 ; Burn Just. At- wealth, 4 Smith, Pa. 209. tempt ; 6 Went. PI. 385 ; Rex v. Devon- United States. — United States v. Lyles, shire, Trem. P. C, 188; Eex v. Montague, 4 Cranch C. C. 469. Tram. P. C. 209 ; Rex v. Goodman, 13 4 49 § 110 COMMON TO ALL OFFENCES. [BOOK IL will be considered under the titles of the offences them- selves. § 108. Secondly. The doing of what is in itself indictable, mean- ing it for a step in a Heavier Offence the consummation whereof fails : — Elsewhere. — The rules for the indictment under this head are pretty fully stated in " Criminal Procedure." ^ And, in this volume, under the titles of some of the minor offences, particu- larly Assault and Battery, the form for alleging the intent to commit a heavier crime will be given. § 109. How the Indictment. — The indictment is simple ; name- ly, it sets out the lighter offence as though it was the only thing complained of, and adds the intent to commit the heavier. The following is an adequate formula : — That A, &c. [alleging the minor offence, with time and place, in the same way as though it alone was being proceeded against,^ and continue] with the intent then and there ' to [specifying the ulterior crime meant, as already * explained] ; against the peace, &c. [ante, § 65-67]/ § 110. Thirdly. Acts in themselves less reprehensible, yet in- tended for steps in a Orime which is not completed .• ® — The Indictment — under this head has the allegation, already explained, of a specific intent to do the substantive wrong. ^ And it further sets out any act or acts toward it which, com- bined with the intent, will prima facie make the transaction in- dictable as an attempt.^ The law, as to what acts will suffice, is a little uncertain and variable ; ^ and the obscurities and con- 1 Crim. Proced. II. § 77-85. 862, 1096 ; Eeg. v. Furguson, Dears. 427, 6 2 " Feloniously." —I think the com- Cox C. C. 454, 29 Eng. L. & Eq. 536 ; Reg. mon-law rules, not ia force in all the States, v. Douglas, Car. & M. 193 ; Keg. v. Cramp, make to this a single exception. Where 5 Q. B. D. 307, 14 Cox C. C. 401 ; Hen- the minor offence is a misdemeanor, and shall's Case, 2 Lewin, 135 ; People v. Pettit, the statute elevates it to a felony when 3 Johns. 511; Davis v. The State, 3 Har. committed with the intent to inflict the & J. 154; People k. Girr, 53 Cal. 629 ; The higher wrong, it should be alleged to have State v. Painter, 67 Misso. 84 ; Dickinson been done feloniously; as, " Aii felom'ousli/ v. The State, 70 Ind. 247, 250; Common- make an assault," not simply "did make wealth v. Nutter, 8 Grat. 699; Cole v. The an assault." State, 10 Eng. 318 ; Harrison v. The State, 8 As to "then and there," see ante, § 106 ; 2 Coldw. 232 ; Reg. ». Brown, 10 Q. B. D. Commonwealth v. Doherty, 10 Cush. 52. 381. * Ante, § 100, 106. 8 Crim. Proced. 11. | 86-93. 5 For forms, see the places mentioned ' Ante, § 100, 106, 109. and referred to ante, § 111. I insert here, 8 Crim. Proced. II. § 86. for convenience, a few particuJar references: ' Crim. Law, I. §724, 725, 737-766, 3 Chit. Crim. Law, 798, 807, 828, 829, 769. 50 CHAP. Till. J AGAINST RESPECTIVE PARTICIPANTS. §111 flicts extend equally, and perhaps further, into the form of the indictment.^ . § 111. Formula. — There is no one formula for the indictment which is indispensable. The following is simple, convenient, and sufficient : — That A, &c. [ante, § 74-77], on, &c. at, &c. [ante, § 80] intending to [state the substantive offence meant] did then and there ^ [feloniously, &c.°] thrust his hand, &c. [proceeding to particularize, or otherwise show what he did; and close as directed ante, § 106]. Or, the order of the averments may be reversed ; thus, — That A, &c. on, &c. at, &c. did [say what], with the intent then and there to, &c. [setting out what substantive offence was meant ; and close as before directed].* 1 Crim. Proced. II. § 87-91. 2 " Then and there " probably not neces- sary. See ante, § 106 and note, 109. ' See the note, ante, § 106. * For forms, see Crim. Proced. II. § 87- 91; Stat. Crimes, § 752, 758 a; 2 Chit. Crim. Law, 162, 169, 493; 3 lb. 696, 795, 796, 797, 798, 817, 846, 981, 984, 1050, 1131, 1132, 1133, 1134; 4 Went. PI. 58, 59, 60 ; 5 Cox C. C. App. 92 ; 6 lb. App. 45, 46, 61, 67, 68, 107, 108, 109; Rex v. Giles, 7 Howell St. Tr. 1129; Reg. v. Burgess, Leigh & 0. 258, 9 Cox C. C. 247 ; Reg. v. Collins, Leigh & C. 471, 9 Cox C. C. 497 ; Reg. V. Johnson, Leigh & C. 489, 10 Cox C. C. 13 ; Rex v. Roberts, Dears. 539, 7 Cox C. C. 39, 33 Eng. L. & Eq. 553 ; Reg. V. Garrett, Dears. 232, 22 Eng. L. & Eq. 607 ; Reg. ;;. Marsh, 1 Den. C. C. 505, 3 Cox C. C. 570; Reg. .;. Kealey, 2 Den. C. C. 68, 70, 5 Cox C. C. 193 ; Rex v. Shan- non, Jebb, 209 ; Reg. v. Henshaw, Leigh & C. 444, 9 Cox C. C. 472 ; Sinclair's Case, 2 Lewin, 49 ; Rex v. Butler, 6 Car. & P. 368; Reg. v. Martin, 9 Car. & P. 215; Beg. V. St. George, 9 Car. & P. 483 ; Reg. V. Lewis, 9 Car. & P. 523 ; Reg. u. March, 1 Car. & K. 496 ; Reg. o. James, 1 Car. & K. 530 ; Reg. v. Perry, 2 Cox C. C. 223 ; Eeg. V. Donovan, 4 Cox C. C. 399 ; Reg. V. Jarman, 14 Cox C. C. Ill ; Reg. i>. Bur- ton, 13 Cox C. C. 71, 13 Eng. Rep. 418. Alabama. — The State v. Clarissa, 11 Ala. 57. Arkansas. — SuUivant v. The State, 3 Eng. 400. Connecticut. — The State v. Wilson, 30 Conn. 500. Georgia. — Griffin v. The State, 26 Ga. 493 ; Black v. The State, 36 Ga. 447 ; Gib- son V. The State, 38 Ga. 571. Indiana. — McMillen <:. The State, 60 Ind. 216. Massachusetts. — Commonwealth v. Har- ney, 10 Met. 422 ; Commonwealth v. Flynn, 3 Cush. 529 ; Commonwealth v. McDon- ald, 5 Cush. 365 ; Commonwealth v. Gala- van, 9 Allen, 271; Commonwealth v. Sherman, 105 Mass. 169 ; Commonwealth u. McLaughlin, 105 Mass. 460; Common- wealth V. Fortune, 105 Mass. 592; Com- monwealth V. Bearse, 108 Mass. 487 ; Commonwealth v. Wunsch, 129 Mass. 477. Michigan. — McDade v. People, 29 Mich. 50. Mississippi. — Sarah v. The State, 28 Missis. 267. Missouri. — The State u. Anderson, 19 Misso. 241 ; The State v. Matthews, 20 Misso. 55; The State v. McDonald, 67 Misso. 13, 15 ; The State v. Craft, 72 Misso. 456. North Carolina. — The State v. Welsh, 3 Hawks, 404. New Yirrk. — Peverelly v. People, 3 Parker C. C. 59, 61 ; La Beau v. People, 6 Parker C.C. 371. Pennsylvama. — Hackott v. Common- wealth, 3 Harris, Pa. 95. Texas. — The State v. Franks, 38 Texas, 640 ; The State v. Williams, 41 Texas, 98 ; Shepherd v. The State, 42 Texas, 501; 61 § 114 COMMON TO ALL OFFENCES. [BOOK 11. § 112. Elsewhere. — Descending to particulars, the form for the attempt to commit each substantive offence will be given under the title of the offence itself. II. The Principals of the Two Degrees and the Two Accessories in Felony^ § 113. One Count — (Or Separate Indictments). — All the par- ticipants in a felony — namely, the principal of the first degree, the principal of the second degree, the accessory before the fact, and the accessory after — are felons.^ They may be indicted separately or together ; if the latter, there need not and properly should not be a separate count for each, but all are charged, each in a form appropriate to his act of participation, in the same count.^ Thus, — § 114. Formula for One Count against All. — If all are charged together, the formula, drawn after the common-law rules, is as follows : — That A, &c. [ante, § 74-77], on, &c. at, &c. [ante, § 80], feloniously did, &c. [setting out a felony as though committed by A alone, but not adding the conclusion. Then proceed against the principal of the second degree thus :] And that B, &c. [ante, § 74-77] was then and there, at the commission of said felony, feloniously present, aiding, inciting, and abetting the said A therein. [Still stopping short of the conclusion, charge next an accessory, better the accessory before the fact, thus :] And that, before the commission of the said felony, C, &c. [ante, § 74—77], on, &c. at, &c. [ante, § 80], did feloniously counsel, aid, incite, and procure the said A \or the said B, or the said A and B*] to commit, in manner and forn^ afore- said, the said felony. [Still stopping short of the conclusion, proceed as follows against the accessory after the fact :] And that D, &c. [ante, § 74- Watson V. The State, 9 Texas Ap.' 237, appear to be charged in distinct counts. 242. Beg. V. Brannon, 14 Cox C. C. 394. Virginia. — XJhl o. 'Commonwealth, 6 Doubtless such an indictment is not ill; Grat. 706 ; Christian v. Commonwealth, 23 because, among other reasons, all the con- Grat. 954. elusions but the one to the last count may United States, — United States v. Wor- be rejected as surplusage, and then there rail, 2 Ball. 384. is but one count. And see Commonwealth 1 Crim. Law, I. § 646-654, 660-680, v. Chiovaro, 129 Mass. 489. 692-700 a; Crim. Proced. 11. § 3-11. * Doubtless, if the ayerment is of an 2 Crim. Law, I. § 646, 673, 700 a. enticement of A and B, proof of either 3 Crim. Proced. I. § 467, 468 ; II. § 5, alone will be competent and sufficient. 8, 9, 1 1 . We sometimes meet with indict- Crim. Proced. II. § 60. ments wherein the different participants 52 CHAP. VIII.] AGAINST RESPECTIVE PARTICIPANTS. § 116 77], after the commission of the said felony, on, &c. at, &c. [ante, § 80], well knowing the said A [or the said B, or the said C, or the said A, B, and C] to have committed and procured the commission of the same in manner and form aforesaid, him the said A [or B, &c. as above] did felo- niously receive, harbor, and maintain ; against the peace, &c. [concluding as in any other single count, ante, § 65-69].^ § 115. Principal of Second Degree. — Not often will the pleader elect to charge one as principal of the second degree ; because, since this participant can be equally well convicted on an allega- tion of being the actual doer, or principal of the first degree,^ the latter method will ordinarily be deemed the more convenient. But, if the former is adopted, the form appears in the last section ; or, to copy more nicely the precedents in our books, it is — That A, &c. [the principal of the first degree, setting out the felony against him down to but not including the conclusion]. And [the jurors aforesaid, upon their oath aforesaid, do further present^], that B, &c. [ante, § 74-77] on the day and year aforesaid,* [with force and arms ^] at the [place] aforesaid, in the county aforesaid, feloniously was present, aiding, abetting, and assisting the said A the [felony and larceny] aforesaid to do and commit ; against the peace, &c. [ante, § 65-69].* § 116. Accessory before the Fact. — The ordinary principles of the common law, as applied in all its departments except in felony, and under the statutes of some of the States in felony 1 The precedents in the books are all, Chit. Crim. Law, 4. See Crim. Proced. I. or nearly all, more or less encumbered by § 412. verbiage; but, excluding it, this formula ' Not necessary. Ante, § 43. conforms in substance to them ; though, in •> Arehb. PI. & Ev., compare the various non-essentials, they differ in various de- editions, the pages of which differ; as, 6th grees from it, and equally from one another. Eng. ed. 681, 13th, 797. For other forms, Some of the common forms appear in the see 3 Chit. Crim. Law, 753, 755, 761, 762, remaining sections of this sub-title, and 787, 792, 855, 973, 979 ; 6 Cox C. C. App. others are referred to in the notes to them. 100; Parker's Case, 2 Dy. 186a; Ttex v. 2 Crim. Law, I. §648; Crim. Proced. Atkins, 7 Howell St. Tr. 231; Rex v. n. § 3 ; Sharp v. The State, 6 Texas Ap. "White, 17 Howell St. Tr 1079 ; Mackalley's 650; Raiford v. The State, 59 Ala. 106; Case, 9 Co. 616, 62 6; Rex v. Doughty, The State v. O'Neal, 1 Houst. Crim. 58. Trem. P. C. 285 ; Rex w. Taylor, 1 Leach ^ This repetition of the commencement 4th ed. 360 ; Rex v. Potts, Russ. & Ry. 353 is common, but not universal, in our books Rex y. Folkes, 1 Moody, 354 ; Reg. u of precedents and in actual practice. It O'Brian, 1 Den. C. C. 9, 2 Car. & K. 115 is never necessary, except as introducing 1 Cox C- C. 126; Reg. y. Brady, Jebb. 257 a new count. Crim. Proced. I. § 429 ; Reg. u. Pym, 1 Cox C. C. 339 ; Reg. u IL § 5. Crisham, Car. & M. 187 ; Reg. v. Downing, * Instead of these italic words, which 2 Car. & K. 382; The State v. Hopper, 71 perhaps are legally sufficient, it is neater Misso. 425, 427 ; The State v. Rabon, 4 and safer to say " then and there," as in 2 Eich. 260. 53 §116 COMMON TO ALL OFFENCES. [book II. also, would permit the accessory before the fact to be charged as principal, in the same manner as may be the principal in the second degree.^ But a technical rule of the common law, ex- tending only to felony, has forbidden this ; so that, in the absence of any interposing statute, the allegation against such accessory must be special.^ The course is to set out, first, the offence of the principal, and then the counselling of the accessory. The form already given in outline will, if detached from the rest, suffice ; ^ or, as commonly appearing in our books of precedents, it is as follows : — That A, &c. [the principal, setting out his felony in full, except the con- clusion]. And [the jurors aforesaid upon their oath aforesaid do further present^], that B, &c. [ante, § 74-77] before the said felony [or felony and murder, or burglary, &c. as the case is] was committed in form afore- said, to wit, on, &c., [with force and arms ^] at, &c., did unlawfully and feloniously counsel, aid, abet, and procure [or, if for murder, did feloniously and maliciously incite, move, procure, aid, counsel, hire, and command] the said A to do and commit the said felony [or the said felony aud murder] in manner and form aforesaid ; against the peace, &c. [ante, § 65-69].« 1 Crim. Law, J. § 673, 674, 680, 685 ; Crim. Proced. I. § 57, 332 ; II. § 4. '^ Crim. Law, I. § 663 ; Crim. Proced. II. § 7-9. 8 Ante, § 114. * Unnecessary, yet harmless. Ante, § 115, note. 5 Unnecessary. Ante, § 43. 6 2 Chit. Crim. Law, 5. For other forms, see Archb. Crim. PI. & Et. 13th ed. 802 ; 3 Chit. Crim. Law, 1118; 6 Cox C. C. App. 101 ; Rex v. Atkins, 7 Howell St. Tr. 231 ; Parker's Case, 2 Dy. 186 a ; Reg. v. Saunders, 2 Plow. 473 ; Rex v. Dannelly, Russ. & Ry. 310; Rex v. Foy, Vern. & S. 540; Rex v. Scott, 1 Leach, 4th ed. 401 ; Rex V. Blackson, 8 Car. & P. 43 ; Reg. o. Greenwood, 23 U. C. Q. B. 255. Foreign Country. — Against the accessory to a fact committed in a foreign country. Reg. v. Bernard, 1 Fost. & F. 240, 243. Different Counties. — Where the accessorial act is in one county, and that of the principal is in another, if the law requires the accessory to be indicted in the former county (Crim. Proced. I. § 58), the form in the text may be employed the same as in other cases. But the locality of the respective offences 54 should be laid, according to the fact, each in its proper county. Sanchar's Case, 9 Co. 117 a, 118 a; Admiralty Case, 13 Co. 51 ; Reg. v. Saunders, 3 Dy. 254 a. Georgia. — Loyd v. The State, 42 Ga. 221. Maine. — The State v. Carver, 49 Maine, 588. Massachusetts. — Commonwealth ». Glover, 1 1 1 Mass. 395 ; Commonwealth v. Adams, 127 Mass. 15; Commonwealths. Chiovaro, 129 Mass. 489. Nete York. — People v. Hartung, 4 Parker C. C. 256. Nevada. — The State v. Chapman, 6 Nev. 320. O/iio. — Hartshorn v. The State, 29 Ohio State, 635. Pennsylvania. — Commonwealth v. Kaas, 3 Brews. 422. And see Brandt v. Com- monwealth, 13 Norris, Pa. 290. Texas. — Cohea v. The State, 1 1 Texas Ap. 622. And see McKeen v. The State, 7 Texas Ap. 631. Virginia. — Hawley v. Commonwealth, 1 Mat. 847. CHAP. VIII.] AGAINST RESPECTIVE PARTICIPANTS. § 118 § 117. Same after Conviction of Principal. — It is reasonably plain that, though the principal has been convicted, the fore- going form will still suffice against the accessory before the fact.^ But for obvious reasons it is convenient, and it has been the custom, to allege such conviction ; nor, under the common-law rules, need the principal's guilt be also averred in this case.^ The following is the form : — That heretofore, at, &c. [setting out the court and the time of holding it], one A, of, &c. was by the name of A, of, &c. duly convicted for that, &c. [reciting the indictment].^ And that B, of, &c. [ante, § 74-77], be- fore the said felony was by the said A committed in form and manner aforesaid, on, &c. at, &c. [ante, § 80], did feloniously and maliciously incite, procure, counsel, hire, and command the said A in form and manner aforesaid to do and commit the said felony ; against the peace, &c. [ante, § 65-69].* § 118. Accessory after the Fact. — On the principles of our law, as appearing in other parts of it, the accessory after the fact, unlike the accessory before,^ could neither be charged as prin- cipal nor even be joined with him in the same count.® Yet a technical rule of the common law permits the latter, hnt requires the allegation to be special, in exact analogy to the proceedings against the accessory before the fact.'' The form has already been given ; ^ or, as commonly appearing in our books of prece- dents, it is, rejecting the ordinary surplusage, as follows: — [After stating the guilt or conviction of the principal, as in ante, § 116 or 117, proceed :] And that B, &c. [ante, § 74-77] afterward, on, &c. at, &c. [ante, § 80], well knowing the said A to have done and committed the 1 Crim. Law, I. § 667. [continuing the indictment to the end, reciting ^ Crim. Proced. II. § 1 1 . i' however in the past, and not in the present s There are differences of opinion, and tense] ; upon which said indictment the said Bome uncertainties, as to what this part of J- S-, at the session of the jail delivery ...... . , ij „„4„-„ rpv,„ „„„„ aforesaid, was duly convicted of the [felony the indictment snould contain, iheques- ,,!-.. i, »i, j . , . . ., J ^ o „o and larcenyl aforesaid: as by the record tion, with forms, is considered ante, § 93- ., . _ ■'„ . ,, , „„ , „, , „„„„„„ „ * , ' „ «,,,,-. thereof more luUy and at large appears." 96. And see Reg. v. Butterfield, 2 Moody ■' & K. 522, 1 Cox C. C. 39. In Archb. Crim. * Reg. v. Read, 1 Cox C. C. 65 ; Reg. v. PI. & Ev. 10th Eng. ed. 689, the conviction Butterfield, 1 Cox C. C. 39 ; 2 Morris St. of the principal is alleged as follows : — Cas. App. 1760. 5 Ante, § 116. " Middlesex, to wit: - The jurors for our , ^^.^^ ^ j g g92 g^^ ^ lady the Queen upon their oath present, that heretofore, to wit, at the general sessions of S ■ _ the delivery of the jail of, &c. &c. - [so con- ' Cnm. Law, I. § 692 ; Crim. Proced. tinning the caption of the indictment against !■ § 467 ; II. § 7-11. the principal,] — it was presented upon the ° Ante, § 114. oaths of, &c., that one J. S., late of &c. — 65 § 120 COMMON TO ALL OFFENCES. [BOOK II. said felony and burglary [according to the fact] in form aforesaid, did feloniously receive, harbor, and maintain^ him the said A; against the peace, &c. [ante, § 65-69].^ III. The like Participants in other Crimes.^ § 119. Option to follo-w Foregoing — (Esiception as to Receivers). — Since the pleader has the option, if he deems practically best, to set out in an indictment the facts according to their outward form rather than their legal effect,* it follows that in misde- meanor and treason, wherein all inciters, whether present or absent, are by legal construction of their act doers, ^ a count is sufficient which charges the respective participants at and before the fact after the rules laid down in the last sub-title." But as in cases other than felony,^ — at least, as in misdemeanor, the law in treason being less certain and settled, — the offence of the helper after the fact who incurs any guilt is separate and not parcel of the principal's, the two cannot in reason be joined in one count, whatever be the rule as to joining them in one indict- ment in separate counts. And the charge against such helper must, of course, be special.^ Hence, — § 120. Present Aiding or Counselling. — One present aiding or 1 On the question whether time and other forms, see Parlier's Case, 2 Dy place should be repeated to this allegation, 1 86 a ; ReK v. Atkins, 7 Howell St. Tr. 231 ; see ante, § 106, note. Reg. v. Swendsen, 14 Howell St. Tr. 559; 2 In substance, but with a transposition. Rex v. Farringdon, Trem. P. C. 250 ; Rex as in 2 Chit. Crim. Law, 5. This precedent v. Blaekson, 8 Car. & P. 43 ; 6 Cox C. C. in Chitty, and the same in various other App. 101 ; Reg. u. Hansill, 3 Cox C. C. places in our books, after charging the 597; Reg. «. Richards, 2 Q. B. D. 311, 13 felony of the principal, proceeds : " That Cox C. C. 611 ; Reg. v. Hancock, 14 Cox B, &c. well knowing the said A to have, C. C. 119. &c. afterwards, to wit, on, &c. at, &c. him Georgia. — Bieber v. The State, 45 Ga. the said A did feloniously receive," &c. 569. Now, to constitute the offence of B, the Ohio. — Hallett u. The State, 29 Ohio, knowledge of A's felony must have existed 168, 169. simultaneously with the receiving; but, in Texas. — Postonu. The State, 12 Texas this form, it is not so charged, nor is there Ap. 408. any allegation of time and place to it. Virginia. — Wren v. Commonwealth, 25 There is simply an averment that the re- Grat. 989, 991. ceiving was "after" the knowledge; and ^ Crim. Law, I. § 655-659, 681-689, so, perhaps, the continuance of the knowl- 701-708 ; Crim. Proced. II. § 2. edge may be inferred. I could not say * Crim. Proced. I. § 332-335. that a particular court vrill not accept this ' Ante, § 116 ; Crim. Law, I. § 655, 656, as sufficient, especially in deference to long 681-686. usage. But it is better in pleading to " Crim. Proced. II. § 2. avoid objections of this sort, when it can ' Ante, § 118. be so easily done as in this instance. JFor 8 n,. ; Crim. Law, I. § 701-707. 56 CHAP. Vm.] AGAINST RESPECTIVE PARTICIPANTS. § 124 counselling in these offences may be charged in either of the two forms permissible in felony.^ To repeat here a form of the indictment would be of no practical service.^ § 121. Inciting, but Absent. — A person who has incited an- other to one of these offences, but was absent at its commission, may be indicted after the form against the accessory before the factj substituting 3 "maliciously" in misdemeanor, or, "traitor- ously" in treason, for "feloniously";* or, at the election of the pleader, he may be charged directly as doer.^ The forms for this, therefore, appear in other connections, and are not here required. §122. Aiding after Pact. — From explanations in "Criminal Law," 8 the reader will be satisfied that he will probably never have occasion to prosecute or defend an abettor after the fact in treason or misdemeanor. Hence, as the bodks appear to furnish us no precedents for these indictments, the present writer does not deem it incumbent on him to construct never-to-be-called-for forms. IV. Compounding J § 123. As to Accessorial, &c. — The chief difference between the compounder of an offence and an accessory after the fact in felony is, that the guilt of the former is less intense than of the latter; he may be prosecuted in advance of the principal, and his crime is never felony but always misdemeanor.^ Therefore the indictment charges, first, the offence compounded, and then the defendant's act of compounding it. Thus, — § 124. Formula for Indictment. — The indictment may be, — That A, &c. on, &c. at, &c. [ante, § 74], did, &c. [setting out his offence as directed, ante, § 116-118, 121], against the peace, &c. [ante, § 65-69] ; and that afterward B, of, &c. [the defendant], on, &c. at, &c. did, well knowing the premises and the guilt of the said A therein, take and receive of the said A the sum" of, &c. in consideration whereof he, the 1 Ante, § 114, 115. but of the doing. Crim. Proced. I. § 53, 2 Conspiracy and Tumult. — For a 57. form for stimulating a conspiracy and * Crim. Proced. II. § 2 ; Crim. Law, I. tumult, see Rex v. Hanson, 31 Howell St. § 682-686. Tr. 1. « Crim. Law, I. § 701-708. 8 Crim. Proced. I. § 533-537. ' Crim. Law, I. § 709-715. And see * Ante, § 116, 117. County. — The lb. § 247, 267-276, 604, 699; Crim. Proced. county will not be that of the incitement, I. § 404. 8 Crim. Law, I. § 709, 710. 57 § 125 COMMON TO ALL OFFENCES. [BOOK U. said B, did while so taking and receiving it there promise to and agree with the said A, that he would not thereafter prosecute or * appear against him the said A by reason of his aforesaid offence, but would and thereby did compound the same ; against the peace, &c.^ § 125. Puller and Common Forms. — Most of the forms in OUr books are expressed somewhat differently from the foregoing, and are more extended. Thus, one of Chitty's is — That heretofore, to wit, on, &c. at, &c. one A [with force and arms'] felo- niously did steal, take, and carry away one lamp, of the value of twenty shillings, of the goods and chattels of one X, late of, &c. against the peace, &c. ; and that B, &c. [the defendant], well knowing the premises, and the said felony to have been by the said A so as aforesaid done and committed, [but contriving and intending unlawfully and unjustly to pervert the due course of law in this behalf, and to cause and procure the said A for the felony aforesaid to escape with impunity ^], afterwards, to wit, on, &c. with force and arms, at, &c. unlawfully [and for wicked gain's sake ^] did com- pound the said felony with the said A, and did on said last-mentioned day there exact, receive, and have of the said A the sum of eighteen shillings [in moneys numbered °] for and as a reward for compounding the said felony and desisting from all further prosecution against the said A for the said felony, [and that the said B, on, &c. last aforesaid, at, &c. aforesaid, did thereupon desist, and from that time hitherto hath desisted, from all further prosecution of the said A for the said felony, to the great hindrance of justice, in contempt, &c. and '] against the peace, &c.^ 1 This is one of those exceptional cases and thereby obtaining money for com- wherein or is proper in allegation, not and. pounding the offence, &c., 3 Chit. Crim. Crim. Proced. I. §591; Stat. Crimes, Law, 1182. § 1043. ' Unnecessary. Ante, § 43. ^ As a question of principle, an indict- * These words seem not to be necessary ; ment on this formula will be adequate, but I am not aware of any direct authority But the next three sections disclose, that on the question, and it may admit of argu- the common forms are more voluminous, ment. The decisions are not sufficiently numerous ^ In reason, not necessary. See, as to render it certainly safe, before every illustrative, Crim. Law, I. § 1086, 1112; court, to reject all the customary verbosity. Crim. Proced. II. § 108, 274. For other and the more common forms, see ^ Plainly not necessary. 2 Chit. Crim. Law, 220 et seq. ; 2 Burn ' " To the great hindrance," &c. " in Just. 832; Mat. Crim. Law, 450; 4 Went, contempt," &c. unnecessary. Ante, § 48; PI. 327, 329 ; Davis Prec. 97, 98 ; Reg. v. Crim. Proced. I. § 647. The rest in these Mabey, 37 U. C. Q. B. 248. Misde- brackets is common. I am not aware of meanor. — The form in Reg. i: Mabey, any authority or reason requiring it; though snpra, is for compounding a misdemeanor, it would, at least in some circumstances, be Inciting. — For prevailing on a victim of a defence that the defendant did not desist rape to compound it with the offender, who but prosecuted the offender. Rex v. Stone, was imprisoned and about to be prosecuted, 4 Car. & P. 379. In a printed blank before see 2 Chit. Crim. Law, 221. Conspiracy me, drawn for use in Albany, New York, and Compounding. — For conspiring to this clause is employed, charge a man with receiving stolen goods * 2 Chit. Crim. Law, 221. For a sim- 58 CHAP. Vni.] AGAINST RESPECTIVE PARTICIPANTS. § 126 § 126. After Steps taken. — When the compounding has oc- curred after steps have been taken in the prosecution of the principal offender, it is common for the indictment to set them out, while yet it is believed by the present writer not to be necessary. For example, — That B, &c. of, &c. on, &c. at, &c. came before M, esquire, then and there being one of the justices of the peace in and for, &c. duly authorized and qualified to execute and perform the duties of that of5ce, and act as hereinafter recited ; and then and there upon his oath did charge, accuse, and complain against one A, &c. of, &c. for that, &c. [setting out the offence of A], which said accusation was and is true ;^ and thereupon the said M, at the said time and place of the making of the said accusation and complaint,^ issued his warrant under his hand and seal, in due form of law, for the apprehension and taking of the said A to answer to and be exam- ined and dealt with touching and concerning the felony aforesaid, so as aforesaid charged upon him the said A, as to law and justice might apper- tain. And afterwards, to wit, on, &c. at, &c. by virtue of the said warrant, and for the felony aforesaid, the said A was duly arrested and taken and carried before the said M, esquire, the justice aforesaid, and examined by him the said justice of and concerning the felony aforesaid, and the subject-matter of said complaint was examined into and heard by the said justice. Upon which said examination and hearing the said M, esquire, did on said last- mentioned day there make a certain warrant under his hand and seal, in due form of law, directed to the Keeper of the Commonwealth's jail in, &c. or hia under-keeper or deputy, thereby commanding the said keeper or his deputy to receive into his custody the body of the said A, so charged with such felony as aforesaid, and him in custody safely to keep until he should be discharged by due course of law. And that the said B, well knowing the premises, but contriving and intending unlawfully and unjustly to pervert the due course of law in this behalf, and to cause and procure the said A, for the felony aforesaid, to escape with impunity, afterwards, to wit, on, &c. at, &c. unlawfully and for the sake of private gain did take upon himself to compound the said felony on behalf of the said A, and on said last-mentioned day there did exact, receive, and have of the said A the sum of, &c. for and as a reward for compounding the said felony, and for desisting from all further prosecution against the said A for the same ; against the peace, &c.* ilar form, see Archb. Crim. PI. & Ev. 19th able interference with public justice to g^ gg5_ agree to desist from the prosecution, but — 1 These italic words are not in the form would it be a compounding? from which I am copying, but there is so ^ Not in the original, much room to doubt the adequacy of the » Davis Prec. 97. And see, of the like indictment without them that I suggest sort, 4 Went. PI. 327. The pleader can their insertion. If A in this case was not abridge the verbosity of this form to suit guilty, perhaps it might still be an indict- his taste. 59 § 128 COMMON TO ALL OFFENCES. [BOOK II. § 127. On Statute — (l8 Eliz.). — The foregoing forms are for the offence as at common law. They will serve equally as guides to the indictment on a statute.^ On the old statute of 18 Eliz. c. 5,^ the ordinary form was as follows : — That [the defendant] B, &c. [being an evil-disposed person and not regarding the statute in such case made and provided, nor fearing the penalties therein contained'], heretofore, to wit,* on, &c. at, &c. by and upon color and pretence of a certain matter of offence then and there pretended to have been committed by one A against a certain penal law, that is to say, by and upon color and pretence that, &c. [setting out A's act in violation of the penal law], unlawfully, wilfully, and corruptly did compound and agree with the said A, who was surmised to have offended against the same statute in manner aforesaid, for the said pretended offence ; and did then and there, to wit, on, &c. at, &c. aforesaid, without process, take of and from the said A a certain sum of money, to wit, the sum of, &c. and divers, to wit, three bank-notes of the bank of, &c. for the pay- ment of, &c. of the value of, &c. as and by way of composition for the said pretended offence, and in order to prevent an action being brought against him the said A for and in respect of the same ; without the order or con- sent of any or either of His Majesty's courts at Westminster, and without any lawful authority for so doing [to the great hindrance and obstruction of public justice, in contempt of our said Lord the King and his laws, to the evil and pernicious example of, &c.^] ; against the form of the statute, &c. against the peace, &c.^ V. Misprision.'' § 128. As to accessorial, &c. — A misprision is of the same nature with a compounding,^ except that the guilt of the offender is less intense. Practically it is almost never prosecuted, and the books are barren of forms. There are two sorts of it ; thus, — § 129. Neglect to Disclose and Prosecute. — Chitty's form is, rejecting palpable verbiage, — [After setting out the principal offence, proceed] : and that B, &c. [the defendant]," well knowing the premises, and well knowing the name and 1 Ante, § 31. 232 ; 4 Went. PI. 319-326 ; 6 lb. 399 ; Eeg. 2 Crim. Law, L § 712. v. Best, 2 Moody, 124 ; Rex v. Crisp, 1 B. 8 Not necessary. Ante, § 45, 46. & Aid. 282. * Also unnecessary. ' Crim. Law, I. § 716-722. ^ Unnecessary. Ante, § 45, 48. " Ante, § 123. 8 Rex V. Gotley, Russ. & Ry. 84, note. 9 I should prefer to add here an aver- For other forms on this and similar Eng- ment of time and place. See ante, § 106, lish statutes, see 2 Cliit. Crim. Law, 223- 111, and the places there referred to. 60 CHAP. VIII.] AGAINST RESPECTIVE PARTICIPANTS. § 130 person and usual place of resort of the said A, but devising and intending to obstruct and hinder the due course of justice and to cause the said A to escape unpunished for the said offence so by him committed, afterwards, to wit, on, &c. at, &c.' unlawfully, maliciously, wickedly, wilfully, and con- temptuously did conceal, keep secret, and neglect to discover the said felony so as aforesaid committed by the said A, and the name, person, and usual place of resort of the said A did utterly refrain and forbear to dis- close and make known ; against the peace, &c,? § 130. Neglect to prevent Felony. — The only form for this branch of the offence before the compiler was drawn by an attorney-general of Massachusetts and never used. Omitting what the practitioner can readily supply, it is, — That one A, &c. one B, &c. and one C, &c. on, &c. at, &c. wickedly, injuriously, and maliciously did conspire, combine, agree, intend, and deter- mine, &c. [proceeding to state the offence proposed to be committed], and that D, &c. [the defendant] well knowing the premises, and also well knowing the names, persons, and usual places of abode and resort of the said A, B, and C, but devising and intending that they should carry into effect and commit the said intended felony without being prevented and brought to justice therefor, on, &c. at, &c. unlawfully, wickedly, wilfully, maliciously, and contemptuously did conceal, keep secret, and neglect to discover the felony so as aforesaid agreed, intended, and determined to be done and committed in manner aforesaid ; and the names, persons, and usual places of resort of the said A, B, and C, did, during all the time aforesaid, utterly refrain and forbear to disclose and make known ; against the peace, &c.' 1 Better transpose this allegation of 2 2 Chit. Grim. Law, 232. And see 4 time to the earlier part of the sentence to Chit. Crim. Law, 14. read, "that afterward, on, &c. at, &c. B, ^ Davis Prec. 169. &c. well knowing," &c. See ante, § 118, note. 61 § 132 COMMON TO ALL OFFENCES. [BOOK II. CHAPTER IX. INDICTMBNTS AND COMPLAINTS ON PKIVATB STATUTES AND MUNICIPAL BT-LA"WS.^ § 131. Introduction. 132. Private Statutes. 133-136. Municipal By-laws. § 131. How Chapter divided. — We shall consider the forms for, I. Private Statutes ; II. Municipal By-laws. I. Private Statutes. § 132. Averring Statute. — The indictment or complaint on a private statute differs from that on a public one only in requiring the statute to be set out therein. The form is not well settled by precedents; indeed, the present compiler, after considerable re- search, has been able to find in the books no precedent for it, except in civil causes. The following is suggested : — That heretofore and before the transpiring of the facts hereinafter al- leged, it was enacted by the Senate and House of Representatives of the United States of America \or, should the statute be a Massachusetts one, it was enacted by the Senate and House of Representatives in General Court assembled and by the authority of the same, pursuing the enacting style of the particular State], in manner and form following, that is to say, that, &c. [here copying simply so much of the statute as the indictment is to be founded upon, but substituting should ^ for " shall," &c.], and that afterward, &c. [proceeding now to draw the indictment in the same manner as on a general statute].' 1 Stat. Crimes, § 394-408. Proced. I. § 1349. And see the form in ' The past tense seems to be appro- the next note, priate and perhaps necessary ; because, in ^ Shorter forms for this averment are some way, the statute must appear to have permitted by statutes in some of the States, been in existence when the offence was Stat. Crimes, § 402 ; The State t. Hea- committed and before the indictment was ton, 77 N. C. 505. To show the ancient found. And see, as illustrative, Crim. method, I will here copy from Wentworth 62 CHAP. IX.] PRIVATE STATUTES AND BY-LAWS. §134 II. Municipal By-laws. § 133. Setting out By-law. — If, by the practice of the particu- lar State, the indictment or complaint must set out the by-law, the form in the last section will be suggestive, and the discussions in " Statutory Crimes " will show how the rest should be.^ § 134. Illustrative English Form — (Obstruction in Street). — The following is on the Municipal Corporations Act of 5 & 6 Wm. 4, c. 76, § 90, 91 : — That A, &c. on, &c. at, &c. [within the precincts of said borough ^ ], did unlawfully suspend an article of dress, to wit, a shirt, over the causeway the form of reciting a statute in a penal action of debt. The 4th section of 6 Anne, c. 16, after a preamble, proceeds : " From and after the determination of this present session of Parliament, all persons that shall act as brokers within the city of London and liberties thereof shall from time to time be admitted so to do by the court of mayor and aldermen of the said city for the time being, under such restrictions and limitations for their honest and good be- havior as that court shall think fit and rea- sonable, and shall upon such their admission pay to the chamberlain of the said city for the time being, for the uses hereinafter mentioned, the sum of forty shillings, and shall also yearly pay to the said uses the sum of forty shillings, upon the nine and twentieth day of September in every year." Then the 5th section declares: "If any person or persons, from and after the de- termination of this present session of Par- liament, shall take upon hira to act as a broker, or employ any other under him to act as such, within the said city and liber- ties, not being admitted as aforesaid, every such person so offending shall forfeit and pay, to the use of the said mayor and com- monalty and citizens of the said city, for every such offence, the sum of five and twenty pounds, to be recovered by action of debt, in the name of the chamberlain of tlie said city, in any of her Majesty's courts of record, in which no protection, essoin, or wager of law shall be allowed, or any more than one imparlance." And the fol- lowing is the opening part of a count of a declaration on this statute for acting as broker in London, not being admitted by the court of the mayor and aldermen to act as such : — "That whereas, in and by a certain act made in a Parliament of the Lady Aime, late Queen of Great Britain, holden at West- minster in the county of Middlesex, the twenty-third day of October in the sixth 3'ear of her reign, it was amongst other things enacted by the authority of the same Parlia- ment, that from and after the termination of the then session of Parliament all persons that should act as brokers within the city of London and liberties thereof should from that time be admitted so to do by the court of the mayor and aldennen of the said city for the time being, under such restrictions and limi- tations for their good behavior as that court should think fit and reasonable ; and it was further enacted by the said act, that, if any person or persons from and after the de- termination of the then present session of Parliament should take upon him to act as a broker, or employ any under him as such, within the said cit}^ and liberties, not being admitted as aforesaid, every such person so offending should forfeit and pay to the mayor and commonalty and citizens of the said city for every such offence the sum of twenty-five pounds, to be recovered by action of debt in the name of the chamberlain of the said city in any court of record (of the said lady the queen)." 7 Went. PI. 241. 1 Stat. Crimes, § 403-408. 2 Not in the form quoted from, but I presume something like this is desirable or perhaps necessary. 63 § 136 COMMON TO ALL OFFENCES. [BOOK II. of a certain street there called High Street, for the purpose of then and there drying the same, contrary to the by-law of and for the said borough in that behalf duly made at a meeting of the council of the said borough, held on, &c. and which said by-law was at the time of the commission of the said offence, and still is, in force for the said borough, and contrary to the form of the statute in such case made and provided.^ § 135. In General. — The above form is sufficient only under statutes modifying the common-law rule. One defect at the common law would be, that it does not set out the by-law. Pos- sibly it is otherwise insufficient at the common law ; as, for example, it does not say " against the peace," &c., but it is not proposed to intimate an opinion on this question. The prac- titioner, to be safe, will carefully look into the statutes of his own State and the decisions of the courts thereon. § 136. other Forms. — For other forms on municipal by-laws, the reader is referred to a subsequent section,'-^ and to cases cited in the note.^ 1 Paley ConTict. 4th ed. 522. Met. 382 ; Commonwealth v. Curtis, 9 AI- 2 Post, § 171. len, 266. ' Kansas. — West v. Columbus, 20 Kan. Michigan. — Napman v. People, 1 9 Mich. 633. 352. Massachusetts. — Commonwealth ». Kice, Texas. — Ex parte Slaren, 3 Texas Ap. 9 Met. 253; Commonwealth v. Dow, 10 662; Ex parte Boland, 11 Texas Ap. 159. 64 CHAP. Z.] ABORTION. § 138 BOOK III. THE SPECIFIC OFFENCES. For ABDUCTION OF WOMEN, see Seditction And Abduction. ABETTORS, see ante, § U4-117, 119-121. CHAPTER X. ABOETION.^ § 137. Differences. — Both under the statutes of our differing States, and under the common law as adjudged in the tribunals, there are differences in the elements which constitute this of- fence. The indictment must conform to the law prevailing in the place where it is to be tried. Still, — § 138. Formula. — The following formula, to be varied to con- form to what the particular court in the particular State will hold the law to be, will serve for nearly every sort of indictment, whether for the substantive offence or for the attempt, at com- mon law or under a statute : -^ That one X [ante, § 79] being, on, &c. at, &c. [ante, § 80] a woman ' pregnant [and quick'] with child, A, &c. [ante, § 74-77] did then and 1 For the direct exposition, as to both Car. & P. 236 ; Eex v. Scudder, 1 Moody, law and procedure, see Stat. Crimes, § 740- 216 ; Archb. Crim. PI. & Ev. 19th ed. 771 762. Collateral, Crim. Law, I. § 328, 741, 772 ; Reg. v. Hillman, Leigh & C. 343 169; IL § 691 ; Crim. Proced. I § 1173. Eeg. v. Cramp, 5 Q. B. D. 307; Common And compare with Assault akd Bat- wealth u. Jackson, 15 Gray, 187; Common- TERT — Homicide. wealth u. Snow, 1 1 6 Mass. 47 ; Common- 2 These words, "a woman," are here wealth «. Boynton, 116 Mass. 343 ; Com- inserted out of respect to the usage in many monwealth v. Brown, 121 Mass. 69, 71 of our States. I do not deem them neces- Commonwealth v. Drake, 124 Mass. 21 saty, even in an indictment on a statute Commonwealth v. Blair, 126 Mass. 40 containing them ; the same reasons govern- Commonwealth ii. Adams, 127 Mass. 15 ing as in rape, wherein they are not re- Hunt v. People, 3 Parker C. C. 569 ; Cobel quired. Crim. Proced. II. § 952. And v. People, 5 Parker C. C. 348 ; Mongeou indictments for abortion without them have v. People, 55 N. Y. 613 ; The State v. been sustained ; nor is it tbe more com- Vawter, 7 Blackf. 592. mon practice in England or in all of our * By some opinions necessary at the States to insert them. Eeg. v. Ashmall, 9 common law. Stat. Crimes, § 744, 745, 5 65 §138 SPECIFIC OFFENCES. [book III. there unlawfully [if the indictment is on a statute, use, instead of " unlaw- fully," the statutory adverbs and other qualifying words, whatever they may be ^] administer to her [or thrust, &c. or both ; setting out, on the prin- ciple explained ante, § 18-21, all the acts of the defendant which, while not repugnant, are within any fair probability of being covered by the proofs^], with the intent thereby ' to cause and procure the abortion and miscarriage of her the said X of the child wherewith she was so [quick and] pregnant [thus far, an indictable attempt is alleged. If it culminated in the accom- plished abortion, proceed] : in consequence whereof, the life of the said child was then and there destroyed, and it was then and there prematurely • bom [adding, if the indictment is on a statute, any further words which may be necessary to bring it within the interpreted ^ statutory terms, such as] the same not being then and there necessary to preserve the life of the said X [or, not having been advised by any physician to be, &c.];^ against the peace, &c. [ante, § 65-69].^ 753 ; Mitchell v. Commonwealth, 78 Ky. 204 ; Commonwealth v. Parker, 9 Met 263. By others, not necessary. Stat. Crimes, ut sup. and the cases there referred to. Generally unnecessary under statutes, but that will depend on the statutory terms. Stat. Crimes, § 746, 753, 754. 1 " Feloniously." — Where the offence is felony, add, in most of the States, " felo- niously," though the word is not in the statute. Ante, § 100, and the places there referred to. 2 That method is permissible. See also Stat Crimes, § 759. And see, for a form. Commonwealth v. Brown, 14 Gray, 419. 8 As to adding time and place here, see post, § 140, note. * Ante, § 32, 33. 5 Stat. Crimes, § 755. ^ Our books often designate the mere attempt — like the administering of a drag or the employing of an instrument with the intent to procure a miscarriage — abortion. And there is between it and the substan- tive offence no distinction which will not be obvious. For further forms, see Stat. Crimes, § 7,52, 758 a ; 3 Chit. Crim. Law, 797-801 ; Archb. Crim. PI. & Ev. 1 9th ed. 771, 772 ; 6 Cox C. C. App. 99, 100 ; Eex t\ Scudder, 1 Moody, 216, 3 Car. & P. 605 ; Anonymous, 3 Camp. 74 ; Reg. v. Ash- mall, 9 Car. & P. 236 ; Reg. v. Hillman, Leigh & C. 343, 9 Cox C. C. 386 ; Reg. v. Isaacs, Leigh & C 220, 9 Cox C. C. 228 ; Reg. V. Cramp, 5 Q. B. D. 307, 14 Cox C. 0. 401 ; Reg. v. Perry, 2 Cox C. C. 223 ; Jleg. V. Hollis, 12 Cox C. C. 463, 6 Eng. 66 Reg. V. O'Callaghan, 14 Cox - Dougherty v. People, 1 Col. Rep. 319; C. C. 499. Colorado. Ter. 514. Indiana. — Willey v. The State, 52 Ind. 246 ; The State v. Elder, 65 Ind. 282 ; The State V. Sherwood, 75 Ind. 15. Iowa. — The State v. Hollenbeck, 36 Iowa, 112; The State v. Stewart, 52 Iowa, 284. Kansas. — Madden v. The State, 1 Kan. 340, 347. Kentucky. — Mitchell v. Commonwealth, 78 Ky. 204. Maine. — The State r. Dyer, 59 Maine, 303. Maryland. — Hays v. The State, 40 Md. 633. Massachusetts. — Commonwealth v. Bangs, 9 Mass. 387 ; Commonwealth v. Parker, 9 Met. 263 ; Commonwealth v. Wood, 11 Gray, 85 ; Commonwealth u. Brown, 14 Gray, 419; Commonwealth v. Jackson, 15 Gray, 187 ; Commonwealth V. Sholes, 13 Allen, 554 ; Commonwealth V. Thompson, 108 Mass. 461 ; Common- wealth V. Snow, 116 Mass. 47; Common- wealth V. Boynton, 116 Mass. 343; Com- monwealth V. Brown, 121 Mass. 69, 71 ; Commonwealth v. Drake, 124 Mass. 21 ; Commonwealth v. Blair, 126 Mass. 40 ; Commonwealth v. Adams, 127 Mass. 1 5 ; Commonwealth v. Wunsch, 129 Mass. 477. Minnesota. — The State o. Mclntyre, 19 Minn. 93 ; The State v. Owens, 22 Minn. 238. Missouri. — The State v. Van Houten, CHAP. X.] ABORTION. § 139 § 139. Form •with the Common Surplusage — (Assault and Ab- ortion — Administering with Intent). — Rarely will the occasion arise to allege an assault as an element in this offence ; because the woman commonly consents, and this takes from the wrongful act the legal quality of assault.^ But there may be such a case.^ And Chitty has for it the following form, drawn upon the com- mon law. It exhibits the ordinary useless redundancies in the allegation : — That A, &c. [being a wicked, malicious, and evil disposed person, and not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil "], on, &c. [with force and arms *], af, &c. aforesaid, in and upon one X, the wife of Y [in the peace of God and our said sovereign lord the king then and there being °], and also then and there being big and pregnant with child, did make a violent assault, and that he the said A then [and on divers other days and times between that day and the day of the taking of this inquisition, with force and arms °], at, &c. aforesaid, knowingly, unlawfully, wilfully, wickedly, maliciously, and injuriously did give and administer [and cause and procure to be given and administered '] to the said X, so being big and pregnant with child as aforesaid, divers deadly, dangerous, unwholesome, and pernicious pills, herbs, drugs, potions, and mixtures,' with intent feloniously, wilfully, and of his the said A's malice aforethought, to kill and murder the said child, with which the said X was so then big and pregnant as aforesaid [by rea- 37 Misso. 357; The State v. Meek, 70 Misso. brackets is better omitted. Ante, § 81, 82 ; 355. Critn. Proced. I. § 387-401. New Jersey. — The State v. Drake, 1 ' These words, though not legally harm- Vroom, 422 ; The State i;. Gedicke, 14 ful, can in no condition of the proofs do Vroom, 86. any practical good, and they better be New York. — People v. Jackson, 3 Hill, omitted. Crim. Proced. I. § 332-334, 585, N. Y. 92 ; Hunt v. People, 3 Parker C. C. 586 ; 11. § 224, 438. The statutory ex- 669 ; Cobel v. People, 5 Parker C. C. 348 ; pression " cause and procure the miscar- Crichtou v. People, 6 Parker C. C. 363, 1 riage," &c. is different ; and the indictment Abb. Ap. 467 ; Mongeon v. People, 55 must contain both terms. Stat. Crimes, N. Y. 613. § 758. Pennsylvania. — Mills w. Commonwealth, ^ Pavis says, in a note to one of his 1 Harris, Pa. 631. precedents : " It may be advisable in all Texas. — Watson v. The State, 9 Texas cases, when the name of the medicine or Ap. 237, 242. drug is unknown, to allege in the indict- 1 Crim. Law, I. § 260, 261 ; II. § 35, ment that it was a certain dangerous, &c. 36, 72 b ; Stat. Crimes, § 495, 496, 744, drug, potion, &c. 'the name of which is to 749. the jurors aforesaid unknown.' But see 3 2 And see Stat. Crimes, § 744. Chit. 797, note, where it is said the name 8 Unnecessary. Ante, § 44, 46. of the poison is not material ; cites 3 Camp. 4 Unnecessary. Ante, § 43. 75." Davis Prec. 35, note. I should cer- 6 Unnecessary. Ante, § 47. tainly concur with Davis in this recom- s " With force and arms " unnecessary, mendation, and should name the drug when Ante, § 43. The rest of this matter in it is known. As to which see further Stat. Crimes, § 756, 757. 67 § 140 SPECIFIC OFFENCES. [BOOK III. son and means whereof, not only the said child whereof she the said X was afterwards delivered, and which by the providence of God was born alive, became and was rendered weak, sick, diseased, and distempered in body, but also the said X, as well before as at the time of her said delivery, and for a long time, to wit, for the space of six months then next following, became and was rendered weak, sick, diseased, and distempered in body, and during all tliat time underwent and suffered great and excruciating pains, anguish, and torture, both of body and mind,-" and other wrongs to the said X he the said A then and there unlawfully, wilfully, wickedly, ma- liciously, and injuriously did ; to the grievous damage of the said X ^], and against the peace of, &c.^ § 140. Administering •with Intent, at Common La-w. — The fol- lowing form, omitting allegations certainly needless, has been adjudged good at the common law, and especially against the objection that it should have charged " the intent to cause and procure the miscarriage and abortion of the child," instead of the pregnant mother : — That A, &c. on, &c. at, &c. did wilfully, maliciously, unlawfully, and wickedly administer to and cause to be taken by one X, [single woman,*] she the said X being then and there big and pregnant [and quick ^] with child, divers large quantities of deadly, dangerous, unwholesome, and per- nicious pills, herbs, drugs, potions, teas, liquids, powders, and mixtures ; * with intent thereby then and there ' to cause and procure the miscarriage and abortion of the said X, and the premature birth and destruction of the said child, of which she was then and there, &c. ; against the peace, &c.' 1 Looking upon this indictment as at them legally necessary ; because, first, the common law, the matter within these brack- earlier allegation of time and place may ets thus far is, while not legally necessary, well be understood to qualify the whole not altogether objectionable. See, for the sentence; and, secondly, if this were not explanation, Crim. Proced. II. § 63, 63 a ; so, still, in point of law, the intent need not Crim. Law, II. § 42, 43. be to have the miscarriage occur when and 2 The rest of this matter in brackets is where the wrongful act was done. The of- not only needless, but it plainly better be fence would be equally perpetrated if the omitted. Ante, § 48 ; Crim. Proced. II. purpose were to have the miscarriage occur § 55, 57. at any other time or place. And see ante, 3 3 Chit. Crim. Law, 798. And see § 106, 109, 111, and notes, and the places Commonwealth v. Snow, 116 Mass. 47. there referred to. And see the form ante, * Unnecessary. Ante, § 78, 138, note. § 139. 5 These words were not in the indict- 8 Mills v. Commonwealth, 1 Hanis, Pa. mcnt which was sustained, but in some 631. Compare this case with People i;. States they are necessary. Ante, § 138 Lohman, 2 Barb. 216 ; Commonwealth v. and note. Parker, 9 Met. 263 ; Mitchell v. Common- ^ See ante, § 139 and note. wealth, 78 Ky. 204 ; People v. Jackson, 3 7 It may be prudent to retain these Hill, N. Y. 92. words " then and there," but I do not deem 68 CHAP. X.] ABORTION. § 142 § 141. Particular Allegations on Statutes : — Administering Drug, &o. — The terms of these statutes differ, and the pleader will follow those of the one on which he is proceed- ing. Examples of the allegation are — Did feloniously, wilfully, and unlawfully administer to one X, then and there being pregnant with a child, a large quantity of medicine, with intent thereby feloniously, &c. to procure the miscarriage of said X ; the admin- istering of said medicine to said X not then and there being necessary to preserve her life.^ Did advise and attempt to procure and did procure one X to take cer- tain medicines, drugs, and substances ; to wit, certain pills known as Dr. James Clark's Female Pills ; which, &c., with the intent of procuring the miscarriage of her, the said X, she then and there being a pregnant woman.' § 142. Operating with Instrument. — The statutory terms as to this method of abortion differ, and the pleader will follow those on which he proceeds. Specimens of the allegation are — Did unlawfully and wilfully employ and use in and upon the body and womb of one X, who was then and there a pregnant woman [as the said A well knew '], a certain instrument called a catheter,^ with intent then and there and thereby to procure and produce the miscarriage of the said X ; it not being then and there necessary to cause said miscarriage to preserve her life.= Did unlawfully use a certain instrument, a more particular description 1 The State v. Vawter, 7 Blackf. 592. v. Drake, 1 Vroom, 422 ; The State v. Van It was deemed in this case not necessary Houten, 37 Misso. 357 ; The State o. Mc- to set out the name of the medicine or Intyre, 19 Minn. 93 ; 3 Chit. Ciim. Law, describe it as noxious. And see Shotwell 797, 798. V. The State, 37 Misso. 359 ; The State v. 8 These words are plainly not neces- Van Houten, 37 Misso. 357. Further on sary. this question see Stat. Crimes, § 756, 757 ; < Doubtless, if the instrument is known ante, § 139, note. by name to the grand jury, they should say 2 Crichton v. People, 1 Abb. Ap. 467, what it is ; yet they should avoid needless 6 Parker C. C. 363. For other forms of description, embarrassing the proofs. The the like sort with these two, see Rex v. instrument need not be one expressly made Scudder, 1 Moody, 216, 3 Car. & P. 605 ; for this work; thus, in People v. Jackson, Anonymous, 3 Camp. 74 ; Watson v. The 3 Hill, N. Y. 92, the allegation is, " certain State, 9 Texas Ap. 237, 242 ; Reg. v. Hill- instruments, to wit, one piece of wire, &c. man, Leigh & C. 343, 9 Cox C. C. 386 ; with the intent," &c. Reg. w. Isaacs, Leigh & C. 220, 9 Cox C. C. ^ The State v. Sherwood, 75 Ind. 15. 228; Reg. V, Cramp, 5 Q. B. D. 307, 14 The words of the statute in this case are, — Cox C. C. 401 ; Reg. v. Perry, 2 Cox C. C. " shall wilfully administer to any pregnant 223; Reg. o. Hollis, 12 Cox C. C. 463; woman, or to any woman whom he sup- Dougherty V. People, 1 Col. Ter. 514 ; poses to be pregnant, anything whatever. Commonwealth u. Bangs, 9 Mass. 387 ; or shall employ any means with intent Hays V. The State, 40 Md. 633 ; The State thereby to procure the miscarriage of such 69 §143 SPECIFIC OFFENCES. [book m. whereof is to the jurors unknown, by then and there forcing and thrusting it into the body and womb of one X, who was then and there pregnant with child, with the intent to procure her miscarriage thereof.^ Unlawfully and maliciously did thrust a certain instrument, the name of which is to the jurors aforesaid unknown, into the body and womb of one X, then and there being pregnant with child, with intent, &c. [as above] .^ Did feloniously, unlawfully, and maliciously use a certain instrument, the name whereof is to the jurors unknown, by then and there forcing, thrusting, and inserting the same into the private parts of one X, with the intent thereby then and there ^ to procure her miscarriage.* § 143. Causing Death. — To cause the woman's death by an actual or attempted abortion is, at the common law, and under some of our statutes, a felonious homicide.^ But there are, in some of our States, statutes under which this offence may or woman, unless the same is necessary to preserve her life." The form might be — Did wilfully employ in and about the person and womb of one X, supposing and believing her to be pregnant with child, an in- strument called a catheter, with intent thereby to procure her miscarriage, the same not being a necessary means to preserve her life. 1 Commonwealth v. Drake, 124 Mass. 21 ; Commonwealth v. Brown, 121 Mass. 69,71; Commonwealth v. Boynton, 1}6 Mass. 343 ; The State v. Dyer, 59 Maine, 303 ; Commonwealth v. Wood, 1 1 Gray, 85 ; Commonwealth v. Sholes, 13 Allen, 554. 2 Commonwealth v. Blair, 1 26 Mass. 40 ; Commonwealth v. Snow, 116 JIass. 47. ^ As to this " then and there," see ante, § 140, note. * Keg. V. Ashmall, 9 Car. & P. 236. As to alleging Pregnancy. — This in- dictment is for the attempt, and, the reader observes, it does not aver that the woman was pregnant. On principle, and, it is believed, on the authorities, such an allega- tion is necessary only when her pregnancy is an aflBrmative element in the offence. The statute is not given in the report of this case ; but, from its date, it must have been 7 Will. 4 & 1 Vict, c 8.^, § 6, the words of which are " with intent to pro- cure the miscarriage of any woman, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any in- 70 strument or other means whatsoever with the like intent." Under these words the woman's pregnancy, the offender believing it to exist, was held not to be necessary ; hence this form of the indictment was good. Reg. V. Goodhall, 1 Den. C. C. 1 87 ; s. c. nom. Keg. v. Goodall, 2 Cox C. C. 41 ; ». 0. nom. Keg. v. Goodchild, 2 Car. & K. 293. It was otherwise under 43 Geo. 3. c. 58, and 9 Geo. 4, c. 31, § 13, the terms of which are different. Rex v. Scudder, I Moody, 216, 3 Car. & P. 605 ; Crim. Law, I. § 741, note. And see Archb. Crim. PI. & Ev. 19th ed. § 770, 771 ; Crim. Proced. II. § 86-92. As to the effect, in the law of attempt, of the non-existence of a supposed fact, both at the common law and under the statutes, see Crim. Law, I. 741-758. On an indictment in the following form, in substance nearly like that in the text, judg- ment was, in Commonwealth v. Wunsch, 129 Mass. 477, rendered against the de- fendant : — Unlawfully did use a certain instrument, a particular description whereof is to the jurors imkno\vn, by then and there forcing and thrusting it into the body and womb of X, with intent thereby then and there to cause and procure her miscarriage. 5 Crim. Law, II. § 691 ; Stat. Crimes, § 742, 743. For the indictment in this as- pect see the title Homicide. For some forms see People v. Jackson, 3 Hill, N. Y. 92 ; Cobel v. People, 5 Parker C. C. 348 ; Hunt V. People, 3 Parker C. C. 569. CHAP. X.] ABORTION. § 144 must be treated as an aggravated abortion.^ The indictment may follow the appropriate one of the foregoing forms ; simply adding the fact of the death in aggravation, in apt words, but not necessarily as in murder.^ For example, it may be, — That A, &c. [setting out his intent to procure an abortion, on whom, and his act toward it, or its accomplishment, with the statutory particulars and qualifications, as in the foregoing forms ; then arid] by reason and in consequence whereof the said X did afterward, on, &c. at, &c. die [or, in any other words to this effect, following the statutory expression] ; against, &c.» § 144. Practical Suggestions : — Witnesses. — Where the woman is alive, there is ordinarily this one competent witness* who, besides the defendant, knows per- sonally the facts ; and not often is there any other whose evidence is other than circumstantial. Therefore the prosecuting ofiBcer should, before he draws the indictment, take special pains to make himself sure of what this one direct witness will say. And to her testimony, on the other side, should the scrutiny of the counsel for the defence be specially directed. All the facts from other sources, which the court will permit to be laid before the jury, adapted to satisfy them of the degree of credit to be given this witness, should be, by the party they will benefit, produced. In rape there are special rules as to impeaching or confirming the like principal witness ; ^ and, in reason, a similar, though per- haps not just the same, latitude would seem to be demanded in this offence. Still the cases thus far have not proceeded on this view, while yet it might well be urged to the judge on a doubtful question. Where the defendant is a professional abortionist, such as are found in our large cities, he is apt to be surrounded by persons on whose testimony very little reliance can be placed. To get at the true merits of these witnesses may well exhaust the fullest professional skill. Again, — 1 Stat. Crimes, § 743, 759. Mass. 15; Commonwealth a. Thompson, " lb. § 759. 108 Mass. 461 ; Mongeon v. People, 55 8 InCommonwealthw. Jackson, ISGray, N. Y. 613. Soliciting. — In Reg. w. O'Cal- 187, this part of the indictment ran, that laghan, 14 Cox C. C. 499, is an indictment the said X, afterward, to wit, on, &c. at, &c. for soliciting to abortion, held to be defec- by means of the forcing and thrusting the tively drawn. And see ante, § 141, the instrument aforesaid by the said A as afore- second form. said in manner and form as aforesaid, then ^ Stat. Crimes, § 760. and there died ; against, &c. For other ^ Crim. Proced. II. § 961-967. forms, see Commonwealth v. Adams, 127 ,71 § 146 8PECIMC OFFENCES. [BOOK III, § 145. Medical Jurisprudence. — Not infrequently these are cases for consulting the books of medical jurisprudence, and medical and surgical experts ; and sometimes for laying the testi- mony of the latter before the jury. No counsel, on either side, whatever his legal acquirements, can do justice to them, and no one should permit himself to enter upon them, except after full reading, conference with thoroughly competent experts, and pro- found reflection. § 146. TiTramining Indictment. — • The counsel on both sides should examine the indictment as pointed out in earlier seC' tions.i 1 Ante, § 34-36. For ABUSE, CARNAL, see post, § 903 et seq. ACCESSORr, see ante, § 113-118. ADMINISTERING POISON, see post, § 213, 533. ADULTERATED FOOD, see Noxious, &c. 72 CHAP. XI.] ADULTKRY, FOENICATION, ETC. § 148 CHAPTER XI. ADUIiTERY, FORNICATION, BASTARDY, LIVING IN ADULTERY OR FORNICATION, OPEN AND NOTORIOUS LEWDNESS.^ § 147. Diversities. — The statutes creating these offences are in differing terms, and to some extent the interpretations given by the courts to the same words differ in our States. The indict- ment is to be drawn on the interpreted ^ statute ; hence the forms, in our respective States, are not quite uniform. Still, — § 148. Formula for Indictment. — The following formula, to be SO varied with the differing interpreted terms of the statute as in each case to cover them, will ordinarily be adequate : — That A, &c. [ante, § 74-77], on, &c. at, &c. [ante, § 80], being then and there" the husband of one X [ante, § 79]* [or, being then and there an un- married man'], did commit adultery [or fornication] by then and there hav- ing carnal knowledge of the body of one Y,' a woman other than said X [or, did live in adultery' with one Y, a woman other than said X ; or, did live in fornication, &c. ; or, did openly, lewdly, lasciviously, and grossly cohabit in adultery and fornication with, &c.] ; the said Y being then and there the wife of a man other than the said A,* to wit, of one Z ; against the peace, &c. [ante, § 66].» 1 See, for the direct discussions of these riage, should be given, see Stat. Crimes, offences, Stat. Cvimes, § 653-725. CoUat- § 601-603 a., 673. era!. Grim. Law, I. § 38, 39, 500, 501, 706, ' Necessary only when the special terms 767, 768, 795, 1121 ; II. § 184, 235, 708; of the statute make this an affirmative ele- Crim. Proced. I. § 419 ; IL § 241, 244, 956 ; meut in the offence. Stat. Crimes, § 693. Stat. Crimes, § 221, 643, 728. And con- *> As to this part of the form, see Stat, suit Incest — Makkiagb Offences — Crimes, § 674. Nuisance — Poltgamx — . Sjiuuction ' Not adequate under all forms of AND Abduction. the statute. Stat. Crimes, § 699-702, 8 Ante, § 32, 33. • 706. 8 As to this repetition of time and place, * To be inserted only when an element see Stat. Crimes, § 676. of the offence, * This allegation is required only when ' For forms for these several offences in the defendant's marriage is an element particular States, see — in the offence. As to whether the name of Alabama. — Lawson v. The State, 20 thQ -wife, and the time and place of the xnar- Ala. 65 ; McNeil u. The State, 47 Ala. 73 §149 SPECIFIC OFFENCES. [book IIL § 149. Simple Adultery. — The common forms of charging a single act of adultery are various. For example, — That A, &c. on, &c. at, &c. did commit the crime of adultery with one X, who was then and there the lawful wife of Y, by then and there having carnal knowledge of the body of the said X ; against, &c.^ Or,- That A, &c. on, &c. at, &c. being then and there a married man and having a lawful wife alive, did commit adultery with a certain other woman whose name is to the jurors unknown ; against, &c.^ 498; Buchanan v. The State, 55 Ala. 154; Hoover v. The State, 59 Ala. 57, 58. Arkansas. — The State v. Dunn, 26 Ark. 34. Connecticut. — The State v. Bates, 10 Conn. 372. Georgia. — Walker v. The State, 5 Ga. 491; Bigby v. The State, 44 Ga. 344; Hopper V. The State, 54 Ga. 389. Indiana. — Robinson v. The State, 57 Ind. 113; The State v. Stephens, 63 Ind. 542 ; Williams v. The State, 64 Ind. 553 ; The State v. Johnson, 69 Ind. 85. Iowa. — The State u. Fleak, 54 Iowa, 429. Maine. — The State v. Hutchinson, 36 Maine, 261 ; The State v. Jackson, 39 Maine, 291 ; The State ;;. Weatherby, 43 Maine, 258. Maryland. — Eoot v. The State, 10 GiU & J. 374 ; Norwood y. The State, 45 Md. 68. Massachusetts. — Commonwealth v. Cat- lin, 1 Mass. 8 ; Commonwealth v. Calef, 10 Mass. 153 ; Moore v. Commonwealth, 6 Met. 243 ; Booth v. Commonwealth, 7 Met. 285 ; Commonwealth v. Tompson, 2 Cush. 551 ; Commonwealth o. Reardon, 6 Cush. 78 ; Commonwealth v. Parker, 4 Allen, 313 ; Commonwealth v. Squires, 97 Mass. 59. Michigan. — Delany v. People, 10 Mich. 241. Missouri. — The State v. Helm, 6 Misso. 263; The State v. Bess, 20 Misso. 419; The State v. Byron, 20 Misso. 210; The State V. Crowner, 56 Misso. 147 ; The State V. Osborne, 69 Misso. 143. New Hampshire. — The State v. Clark, 54 N. H. 456 ; The State v. Parker, 57 N. H. 123. North Carolina. — The State v. Al- 74 dridge, 3 Dev. 331 ; The State v. Jolly, 3 Dev. & Bat. 110; The State v. Fore, 1 Ire. 378; The State v. Cowell, 4 Ire. 231 ; The State V. Lyerly, 7 Jones, N. C. 158; The State V. Tally, 74 N. C. 322. Pennsylvania. — Helfrich v. Common- wealth, 9 Casey, Pa. 68 ; Smith a. Com- monwealth , 4 Smith, Pa. 209. South Carolina. — The State v. Brun- son, 2 Bailey, 149 ; The State v. Crawford, 10 Rich. 361, 363, 365. Tennessee. — Grisham v. The State, 2 Yerg. 589 ; The State v. Ca^le, 2 Humph. 414 ; Britain v. The State, 3 Humph. 203. Texas. — Ashworth v. The State, 9 Texas, 490 ; Fox v. The State, 3 Texas Ap. 329, 332 ; Clay v. The State, 3 Texas Ap. 499 ; Parks v. The State, 4 Texas Ap. 134, 138 ; Swancoat v. The State, 4 Texas Ap. 105 ; McKnight v. The State, 6 Texas Ap. 158, 162; Edwards u. The State, 10 Texas Ap. 25. Vermont. — The State v. Way, 6 Vt. 311 ; The State v. Bridgman, 49 Vt. 202. Wisconsin. — Ketchingham v. The State, 6 Wis. 426 ; The State v. Fellows, 50 Wis. 65. 1 Commonwealth v. Reardon, 6 Cush. 78. Similar is the form in The State v. Parker, 57 N. H. 123 ; The State v. Bridg- man, 49 Vt. 202. '^ Commonwealth o. Tompson, 2 Cush. 551. Two questions might be raised on this form ; namely, whether the wife's name should not be given, and whether the words "by having carnal knowledge" should not be employed. As to which, see Stat. Crimes, § 673, 674. The form in Helfrich V. Commonwealth, 9 Casey, Pa. 68, 70, 74, adjudged to be good, is — That A, &c. on, &c. at, &c. [and within the jurisdiction of this court, unnecessary, for CHAP. XI.] ADULTERY, FORNICATION, ETC. § 151 Or,- That A, &c. [the woman], on, &c. at, &c. being then and there the lawful wife of X, feloniously ^ permitted another man, one Y, to have, and the said Y did then and there have, carnal knowledge of her body; against the peace, &c.^ § 150. Joint. — Where, by the interpreted statute, the carnal act between a man who is either married or single and a woman who is the wife of another man is adultery in both, they may be jointly proceeded against, if so the prosecuting power chooses.^ The following is an adequate form : — That A, &c. and B, &c. on, &c. at, &c. not being then and there married to each other, but the said B then and there having a husband living other than the said A, to wit, one X, had carnal knowledge together, each of the body of the other, and thereby committed adultery ; against the peace, &c.* § 151. Fornication. — Where the statute does not contain special terms ^ which the indictment is required to cover,^ it is precisely the same for fornication as for adultery, omitting the allegation of a marriage of one of the parties to a third person ; or, on an indictment for adultery, the conviction may be of forni- cation, if the proof of such marriage fails.'' Yet, by some opinions, this proposition is subject to the further one, that, as carnal intercourse between husband and wife is lawful, a marriage between the parties must in some way be negatived in fornication. This is so held^ under the terms of the Massachusetts statute, the jarisdiction appears as of law], then and 6 Crim. Proced. I. § 610-614, 618, 636. there being a married man and having a wife ^ Stat. Crimes, § 690, 692, 693 ; The in full life, to wit, X, did commit adultery State v. Stephens, 63 Ind. 542 ; The State with a certain Y [then late of the same coun- ^ Jolly, 3 Dev. & Bat. 110. ty, unnecessary. Ante, § 78, 79] ; contrary, s Commonwealth v. Murphy, 2 Allen, &<=• 163. Compare with Stat. Crimes, § 693. 1 "Feloniously" to be employed in In Commonwealth w. Murphy, the learned States where adultery is felony. See ante, judge denies the analogy, as to the point § 100, 106, 109. in contemplation, between fornication and 2 The State w. Bates, 10 Conn. 372. I rape. He says : "A different rule is appli- have made this form a little more full than cable to the offence of rape, because a man it is in the report, not saying that the ex- may be principal in the second degree in pansion is necessary, but I deem it expe- the commission of that "crime on his wife." (jient. To this view there are several answers, ' Stat. Crimes, § 670. any one of which is conclusive. One is, 4 Commonwealth v. Blwell, 2 Met. 190. that, though the law as to rape is so, it is And see Commonwealth v. Thompson, 99 equally true of any other sexual offence Mass. 444. which a third person commits against a 5 Stat. Crimes, § 692, 693. wife; if the husband participates in it, he 75 §153 SPECIFIC OFFENCES. [book III. "if a man commits fornication with a single woman, each of them shall be punished."-' The allegations may be, — That A, &c. on, &c. at, &c. did commit fornication with one X, who was then and there a single and unmarried woman, by then and there having carnal knowledge of her person ; against, &c.^ Or,- That A, &c. and B, &c. on, &c. at, &c. being then and there single and unmarried persons,' did commit fornication together, by then and there having carnal knowledge each of the body of the other ; against, &c. § 152. Living in Adultery or Fornication. — The indictment for these offences is the same as for the single act ; except that it charges a living together by the parties, and permits the time to be laid with a eontinuando if the prosecuting power chooses * It should pursue the statutory terms ; which, as they differ in our respective States, should be before the pleader while drawing the indictment. For example, — § 153. Indiana Provision. — Under the words " every person who shall live in open and notorious adultery or fornication," the form may be, — That A, &c. on, &c. [ante, § 80, or as at ante, § 83, 84], at, &c. did un- lawfully live in open and notorious fornication [together ^] with a woman is punishable, however impossible its com- mission by him in person may he. But the reason for the sufficiency of the ordi- nary allegation in rape is not, for it cannot he, the one stated by the learned judge. Were there no other reason, such allega- tion could not be held to show prima fade guilt, as required by the rules of criminal pleading. It would make apparent a pos- sible, not a prima facie guilt. Or, in the language of the learned judge, the effect of the allegation would he, that the defendant " may he a principal in the second degree." This is not enough. It never suffices to set out against a defendant matter from which it simply appears that he " may be " guilty; prima facie guilt must appear, nor will less ever suffice. Hence the true ex- planation is the one given at the place referred to in " Statutory Crimes." 1 Mass. Pub. Stats, c. 207, § 8 ; Stat. Crimes, § 693. 2 Compare with Train & H. Prec. 233, where the averments are more full. 76 It cannot be necessary to deny that the man was married to a third person ; be- cause, though under another statute this would make his offence adultery, the excep- tion, even should we regard it as one, is not in the statute whereon the indictment is drawn, and its negation does not consti- tute a part of the prima facie offence. Crim. Proced. I. § 632, 635, 636, 639. And, if we admit it to be necessary to al- lege that the parties were not married to each other, this appears in the averment that the woman was single and unmar- ried. ' As to alleging the one to he a man and the other a woman, .see ante, § 138, note; Stat. Crimes, § 705. * Stat. Crimes, § 699,702, 703; Edwards V. The State, 10 Texas Ap. 25. ^ The word " together" is in the form copied, and it would be necessary if it wore in the statute. Stat. Crimes, § 699, 702, 706. I cannot see its propriety under a statute in the terms of this one. CHAP. XI.J ADULTERY, FORNICATION, ETC. §155 named X^ [^or in open and notorious adultery with one X, to whom he was then and there not married, and who was then and there the wife of Y] ; against, &c.^ § 154. North Carolina. — Under a statute making it punishable " if any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed, and cohabit together," [or, " where they bed or cohabit together, they not being lawfully married,"] ' the form may be, — That A, &c. and B, &c. on, &c. [as at ante, § 80, or § 83, 84, at the election of the pleader], at, &c. not being then and there lawfully married to each other, unlawfully did lewdly and lasciviously associate, bed, and cohabit together ; against, (fee* § 155. Another Provision — in North Carolina creates a crime which it defines to be " a man taking a woman, or a woman a man, into his or her house, and having one or more children, without parting, or an entire separation." This is a clause of the statute last quoted ; hence, or even if it did not stand in such a connection, a fair interpretation would require the words " not being married to each other " to be incorporated into it, and the 1 The State v. Stephens, 63 Ind. 542. No averment that the woman was unmar- ried is necessary. Ante, § 151 ; Bicknell Crim. Pr. 446, 447 ; The State v. Gooch, 7 Blackf. 468. If the pleader should deem this question open to doubt, he could add, after X, " to whom he was then and there not married." 2 See also The State v. Gartrell, 14 Ind. 280. See, for a form under the Ala- bama statute, Lawson v. The State, 20 Ala. 65. 8 I think the expression has varied at different times, but the question is not ma- terial. The practitioner will follow the terms of what he finds to be the present statute. 1 The State v. Jolly, 3 Dev. & Bat. 110; The State v. Lyerly, 7 Jones, N. C. 158 ; The State v. Tally, 74 N. C. 322. The form is here given in terms somewhat briefer than in any of the cited cases. Thus, in The State v. Jolly, after " cohabit together," it is added " as man and wife." I cannot see the necessity or even strict propriety of these words. In The State v. Lyerly, the allegations indicated by the statute are followed by the further one, that the defendants did then and there "com- mit fornication and adultery." There is nothing in the terms of the statute, or their interpreted meaning, which seems to require this. In The State v. Tally, where, as in the other cases, the indictment was held to be good. Settle, J. observed : " I believe it is a copy of an old and well-approved form, long in use by the solicitors of this State," p. 323. Yet it contains manifestly needless averments. It is, — That A, &c. and B, &c. [being lewd and vicious persons. Unnecessary. Ante, § 46] and not united together in marriage, on, &c. [and on divers other days and times, both before and after that day. Ill as a contimi- ando, and to be rejected as surplusage. Crim . Proced. I. § 388. There is a somewhat simi- lar form which might pass. Ante, § 82], at, &c. did unlawfully and adulterously bed and cohabit together [and then and there did un- lawfully commit fornication and adultery, in contempt of the holj' rites of matrimony. As to the former of these two clauses, see above ; the latter is unnecessary. Ante, § 48 ; Crim. Proced. I. § 647] i contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State. 77 § 157 SPECIFIC OFFENCES. [BOOK III. indictment to be framed as though it contained them.^ In this view of the statute, the allegations may be, — That A, &c. on, &c. at, &c. did take into his house one X, he and the said X not being then and there lawfully married to each other, and thence continually until, &c. did there cause her to remain in his said house with- out parting and without an entire separation ; and on, &c. while she was remaining as aforesaid in his said house, he had there by her a child born ; against, &c.'^ §156. Open Lewdness at Common Law. — All lewdness, of a degree to be offensive or demoralizing, committed in a public place and in the presence of people there, is indictable at the common law as a public nuisance.^ Of course, therefore, so is sexual commerce in public* And so also it may be of an in- decent living together by a man and woman not in matrimonj', though the carnal acts are not before witnesses ; ^ while yet the courts are perhaps not quite agreed as to where the line is here to be drawn between the indictable and unindictable. In Ten- nessee it is held sufficient at common law to allege, — That A, &c. and B, &c. on, &c. at, &c. [being persons of evil disposition and designing to corrupt the morals of the people of the State °J, unlawfully, openly, and publicly did live, dwell, and cohabit together in lewdness and adultery [in the county of Sevier'j, they being unmarried to and with each other ; against, &c.* § 157. Under Statutes. — The indictment for open lewdness under statutes will vary with the statutory expressions and their interpretations. Thus, — 1 Ante, § 32, 33 ; Crim. Proced. I. 6 These words in brackets add nothing § 623-629. to the charge, and the former clause, if not 2 The State v. Fore, 1 Ire. 378. The all, is better omitted. Ante, § 45, 46 ; indictment in this case alleged that the Crim. Proced. I. § 503. defendant, Joel Pore, "did take into his ' This repetition of the place is, of house one Susan Chesnut, and they did course, needless. then and there have one or more children, 8 The State v. Cagle, 2 Humph. 414. without parting or entire separation ; they, In Grisham v. The State, 2 Yerg. 589, the said Joel Pore and Susan Chesnut, the indictment was like this, but more volu- never having been lawfully married." And minous. It was held su6Bcient. In the it was held to be, though "very carelessly South Carolina case of The State v. Brun- drawn, . . . sufficient." son, 2 Bailey, 149, the allegations were 8 Crim. Law, 1. § 500-502, 1125. held not to set out a common-law crime. * Stat. Crimes, § 7U ; Reg. v. Elliot, And compare with Reg. u. Rowed, supra; Leigh & C. 103 J Reg. v. Rowed, 3 Q. B. Rex v. Montague, Trem. P. C. 209; Rex 180. V. Aleway, Trem. P. C. 214. ^ Stat. Crimes, § 711 and the places there referred to. 78 CHAP. XI.] ADULTERY, FORNICATION, ETC. § 159 Lewd, &c. Person. — Under the words "lewd, wanton, and lascivious persons in speech or behavior," ^ the allegation may- be, — That A, &c. on, &c. [with the continuando as at ante, § 83, 84, though probably this is not necessary], at, &c. was and still is a lewd, wanton, and lascivious person in speech and behavior ; against, &c.^ § 158. Lewdly, &c., Cohabiting. — Under a statute making pun- ishable "every man and woman, one or both of whom are married and not to each other, who shall lewdly and lasciviously abide and cohabit with each other," the allegation may be, — That A, &c. and B, &c. on, &c. at, &c. not being then and there married to each other, did lewdly and lasciviously abide and cohabit with each other, the said A being then and there a married man [the husband of one X, a woman other than said A^] ; against, &c.^ Or, should the statutory words be simply, " if any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together,"^ the form may be, — That A, &c. and B, &c. on, &c. at, &c. not being then and there married to each other, did lewdly and lasciviously associate and cohabit together ; against, &c.^ § 159. Bastardy. — Where this offence^ is the begetting of a bastard child, the indictment will follow the analogies in adultery and fornication. But where it consists of a refusal or neglect to give bonds, or obey a judicial order, for the support of such child, the form of allegation will be different. The special statutory words must be pursued, with due particularization of the indi- vidual instance. Something like the following appears to have been deemed adequate in South Carolina : — That X, &c. a single woman, was, on, &c. at, &c. in the district of, &c. delivered of a female child, which by the laws of this State is a bastard, 1 Mass. Gen. Stats, c. 165, § 28. And see The State v. Crowner, 56 Misso. 2 Commonwealth v. Parker, 4 Allen, 147; The State w. Osborne, 69 Misso. 143 ; 313. Por the principle which renders un- The State v. Bess, 20 Misso. 419; Delany necessary the specification of particular v. People, 10 Mich. 241. acts of lewdness, see Crim. Proced. I. * Mass. Gen. Stats, u. 165, § 6 ; R. S. § 493-498. C. 130, § 4. ^ This matter in brackets is not in the * Compare with forms in Train & Heard form given in the case to which I am re- Prec. 352, as to which, query. And see ferring, and probably it is not necessary. Commonwealth v. Calef, 10 Mass. 153 ; But some courts might require it. Stat The State v. Clark, 54 N. H. 456. Crimes, § 673. ' Stat. Crimes, § 691 et seq. * The State v. Byron, 20 Misso. 210. 79 § 161 SPECIFIC OFFENCES. [BOOK IH. that the said child is likely to become a burden to the district aforesaid ; that A, &e. [the defendant] is the father of the said child ; and that, on, &c. and thence continually to the day of the finding of this indictment, at, &c. the said A did and still does, being thereto duly and lawfully required, refuse and neglect to enter into a cognizance, with two good and sufBcient sureties, according to law, for and toward the maintenance of the said child ; against the peace, &c.^ § 160. Practical Suggestions : — Name of Partioeps Criminis doubtful — (Duplicity). — Where, ill single adultery or fornication, there is doubt how the proofs of the name of the particips criminis may be, and it seems not safe to trust alone to the allegation that it is unknown, the beat prac- tical course is to add a second count or more. The method of bringing all into a single count, and still avoiding duplicity, stated in a previous chapter,' is not applicable here ; because, if one commits adultery or fornication with two persons, in however close succession, there are evidently two offences, and to charge both in one count would render it double. It is otherwise with such an offence as assault and battery ; for one blow may take effect on two persons.^ But there cannot be one carnal penetra- tion of two women. Where the wrong is the continuing one of living in adultery or fornication, or of open lewdness, the case in reason is different. A man may live in adultery, or commit open lewdness, with any number of women at once ; thereby, probably, subjecting himself to but one punishment. Still this question has not been judicially passed upon, and a careful prac- titioner is cautious in treading on ground not hardened into a highway by adjudication. Joining Oflfences. — In this class of crime it is of tener desirable than in some others to proceed for two or more criminal acts in one indictment. Then there must be not less than one count for each separate transaction. Still, — § 161. Caution as to Evidence. — Whether there are several counts or but a single one, the prosecuting officer should be on his guard not to be defeated in his efforts to lay before the jury 1 The State v. Crawford, 10 Rich. 361, The State, 5 Ga. 491. And see Koot t-. 363, 365. I have made some slight depart- The State, 10 Gill & J, 374 ; Norwood v. ure from the words in the report, and I The State, iH Md. 68. For an English should advise following this form only on form for disobeying an order of main- a careful comparison of it with the existing tenance, see Matt. Crim. Law, 429. statute. For a fuller form, with the stat- '■' Ante, § 18-21. ute on which it is drawn, see Walker v. » Crim. Froced. I. § 437 ; II. § 60. 80 CHAP. XI.j ADULTERY, FORNICATION, ETC. § 162 all the relevant testimony. Perhaps he will be required to elect, at an early stage of the hearing, on what particular transaction or count or counts he will ask for a verdict. This question being within the judicial discretion of the presiding judge, he can com- monly do no otherwise than submit to whatever order is made.^ But the admissibility of evidence is of law, not of discretion. And, to establish in this offence a particular act, it is competent to show, within recognized limits, what the defendant did both before and after, — a doctrine^ which the prosecuting officer should familiarize himself with, and become able to explain and enforce to the court, before entering upon the trial. § 162. Defence. — Where, as in the majority of these cases, the evidence is circumstantial, the most available method for the defendant's counsel will ordinarily be to point out the absence of some needful link, or to break by counter testimony some such link, in the chain of the adduced circumstances. He should not suffer the jury to overlook the fact, or be allured from it by any artifice, that even an insufficient strength, creating reasonable doubt, at any one place in the chain,^ is equivalent to the same thing in the whole. 1 Grim. Proced. I. § 454 et seq. ' Grim. Proced. I. § 1076-1079. 2 Stat. Grimes, § 677-685, 709. For AFFEAY, see Riot, &c. AIDING AND ABETTING, ante, § 114-117, 119-121. ALEHOUSE, see Liquor Selling — Nuisance. ALLURING TO CRIME, see ante, § 105-107. 6 81 § 164 SPECIFIC OFFENCES. [BOOK III. CHAPTER XII. ANIMALS, OFFENCES RELATING TO. § 163. Introduction. 164-166. Illegal Marking and Altering Marks. 167,168. Unlawful Driving. 169. Unlawful Herding. 170. Purchasing and Slaughtering. 171-176. Neglect to restrain, Estrays, Impounding, &e. 177. Unlicensed Keeping of Dogs. § 163. Here — Elsewhere — How Chapter divided. — We shall in this chapter consider, I. Illegal Marking and Altering of Marks; II. The Unlawful Driving of Cattle; III. Unlawful Herding ; IV. Offences connected with Purchasing and Slaught- ering ; V. Neglect to restrain, Estrays, Impounding, and Offences relating thereto ; VI. The Unlicensed Keeping of Dogs. The subject of Cruelty to Animals will constitute a chapter by itself. And larcenies of and malicious mischief to them, and cheats and nuisances effected by their means, will be placed under the sev- eral titles of Larceny, Malicious Mischief, Cheats and False Pre- tences, and Nuisances. Under some of the other titles something also of animals will appear. I. Illegal Marking and Altering of Marks.^ § 164. Formula for Indictment. — The terms of the statutes differ, and the pleader should duly cover the particular ones on which he is proceeding. His allegations, if they fulfil this rule, may be, — That A, &c. [ante, § 74-77], on, &c. at, &c. [ante, § 80], did, to defraud one X, put upon a certain heifer of the cattle'' of the said X, the mark of him the said A,' without the consent of the said X [or, did, &c. alter the 1 For discussions of these offences, with ^ Crim. Proced. I. § 568-570, 619. the pleading, practice, and evidence, see ' Stat. Crimes, § 459 ; The State v. Stat. Crimes, § 454-461. Davis, 2 Ire. 153. 82 CHAP. XII.J ANIMALS. §166 mark^ upon a certain heifer of the cattle of the said X, by substituting therefor the mark of the said A, without the consent, &c.] ; against, &c. [ante, § 66].=' § 165. Branding. — Under the Texas statute it is good to say, following its terms, — That A, &c. on, &c. at, &c. did unlawfully brand a certain colt [to wit, a sorrel mare colt'], said colt being then and there not his own, and being then and there the property of* some person whose name is to the jurors unknown, without the consent of the owner, and with the intent to defraud the owner thereof; against, &c.' § 166. Altering. — Under a provision making ptinishable one who "shall fraudulently alter or change the mark or brand of any animal, or shall fraudulently mark or brand any unmarked animal, with intent to claim the same, or prevent identification by the true owner thereof," the charge for altering may be, — That A, &c. on, &c. at, &c. did fraudulently alter the brand of an animal to wit, a cow, of one X [of the value of five dollars^], by putting the 1 And see The State v. Davis, supra. 2 For forms practically in use, see Bick- nell Ind. Crim. Pr. 482 ; Bassett 111. Crim. PI. 85. A form in Bicknell is on a statute which provides that "every person who shall alter the mark or brands on the horse, mare, gelding, ass, mule, sheep, goat, neat cattle, or hog of another, or mark or brand any such animal, with intent to steal the same, if the value of the animal so marked be five dollars or upward, shall be subject to the punishment inflicted on those guilty of grand larceny ; and, if the value of such animal be less than five dollars, such per- son shall be subject to the punishment in- flicted on those guilty of petit larceny." It is, — That A, &c. on, &c. at, &c. unlawfully and feloniouslj' altered the mark of a certain hog, of the goods and chattels of X, of the value of fifteen dollars [with the intent to steal the same], by then and there unlawfully and feloniously cutting out a crop on the right ear of said hog, and changing said mark into a swallow fork, said crop on the right ear being then and there the lawful and duly recorded mark for the hogs of the said X; against, &c. The matter here inserted in brackets is not in the original, but it is clearly essen- tial. The allegation of value, not generally required, is necessary on this form of the statute. Stat. Crimes, § 427, 444, 445, 464, 945. For other forms see — Florida. — Atzroth v. The State, 10 Fla. 207 ; Morgan v. The State, 13 Fla. 671 ; Curry v. The State, 17 Fla. 683. North Carolina. — The State v. Davis, 2 Ire. 153. Texas. — The State u. Hall, 27 Texas, 333 ; The State u. Haws, 41 Texas, 161 ; Senterfit v. The State, 41 Texas, 186 ; Fos- sett V. The State, 11 Texas Ap. 40; Davis V. The State, 13 Texas Ap. 215. 8 Unnecessary, and better omitted. Stat. Crimes, § 440, 443 ; Crim. Proced. I. § 486. * It would be neater to say more briefly, a certain colt not then and there his own, but the property of, &c. 5 The State v. Haws, 41 Texas, 161 ; Fossett o. The State, 11 Texas Ap. 40. " Without the consent," and " with intent to defraud," &c. are essential. The State V. Hall, 27 Texas, 333. 6 As the value appears under this stat- ute not to be an element of the offence, — that is, essential to the punishment, — it need not be alleged in the indictment. See the places cited ante, § 164, note. 83 § 169 SPECIFIC OFFENCES. [BOOK IH. same into his the said A's own proper brand [to wit, the letter A ^], with intent to claim the said animal as his own ; against, &c.^ II. The Unlawful Driving of Cattle.^ §167. From Accustomed Range. — Under the Texas statute, making punishable one who shall " wilfully take into possession and drive, use, or remove from its accustomed range, any live- stock not his own, without the consent of the owner, and with intent to defraud the owner thereof," the allegations may be, — That A, &c. on, &c. at, &c. did wilfully take into his possession, and drive and remove from their accustomed range, one cow and one heifer,^ not his own, being then and there the live-stock of one X, without the con- sent^ of the said X, and with the intent to defraud him thereof; against, &c.« § 168. Not having been Inspected. — Under another Texas statute it would seem to be sufficient to say, — That A, &c. on, &c. at, &c. did unlawfully drive out of said county of, &c. one hundred and fifty head of cattle the property of X, and not of said A, without the written consent of the said X, and without first having them duly inspected as the law requires ; against, &c.' III. Unlawful Herding. § 169. Statute and Indictment. — A Texas statute makes it un- lawful for one " to herd any drove of horses or cattle, numbering more than twenty-five head," upon any land not his own within one half mile of any residence, without the consent of the owner of the land. And " whenever any person so unlawfully herding horses or cattle shall be requested by any resident of this State, residing within one-half mile of the place where such stock are 1 Probably not necessary. See the The State v. Thompson, 40 Texas, 515 ; places referred to ante, § 164. Long v. The State, 43 Texas, 467. For a 2 Atzroth 0. The State, 10 Fla. 207; form on a somewhat analogous English Morgan v. The State, 13 Fla. 671. statute, see Reg. v. Fitzsimons, 4 Cox 8 Stat. Crimes, § 4.52, 453. C. C. 246. * A further description of the animals ' Covington v. The State, 6 Texas Ap. is unnecessary and injudicious. Ante, 512. Wot having Marks recorded. — § 1 65 and places there referred to. For the driving of cattle without having ^ Where the statute requires the consent their marks on record, see Senterfit v. to be in writing, say " written consent." The State, 41 Texas, 186. 6 Darnell v. The State, 43 Texas, 147 ; 84 CHAP. XII.] ANIMALS. § 171 being so unlawfully herded, to remove the same from such land, and shall fail, refuse, or neglect to remove such stock at once, he shall be deemed guilty of a misdemeanor ; and, upon conviction, &c. shall be fined in any sum not exceeding one hundred dollars for each hour of delay after notice given." The indictment may allege, — That A, &c. on, &c. at, &c. did unlawfully herd, upon land not his own, within less than one-half mile of the residence of X, then residing in said county, and without the consent of the owner of the land, a drove of fifty horses ; and, upon being then and there requested by thq said X to remove the same from said land, did then and there neglect and refuse so to remove them for the space of one hundred several and consecutive hours from and after the making of the said request and notice ; to wit, from and after three of the clock in the afternoon of said day to the end of the day of, &c. ; against, &c.^ IV. Offences connected with Purchasing and Slaughtering. § 170. The Indictment — for these offences presents no prac- tical difficulties, and it will be sufficient to refer to cases con- taining forms.^ V. Neglect to restrain,^ Estrays,^ Impounding, and Offences relating thereto. § 171. Swine on Sidewalk — (Against City Ordinance). — Under a city by-law making one punishable who shall " permit any horse, cattle, swine, or sheep under his care to go upon any side- walk in the city, or otherwise occupy, obstruct, injure, or incumber any such sidewalk, so as to interfere with the convenient use of the same by all passengers," it is sufficient, where not necessary to set out the by-law,^ to say in allegation, — That A, &c. on, &c. at, &c. did unlawfully permit thirty swine then and there under his care to go upon and injure the sidewalks on certain public * Caldwell v. The State, 2 Texas Ap, Garcia, 38 Texas, 543. Purchasing with- 53 ; Linney v. The State, 5 Texas Ap. out bill of sale, with expositions of the 344. statute. Lastro v. The State, 3 Texas Ap. 2 Against butcher for failing to re- 363 ; Houston u. The State, 13 Texas Ap. turn list of brands of cattle slaughtered. 595. Schutze V. The State, 30 Texas, 508. For ^ gtat. Crimes, § 223, 1136-1139. buying hide taken from a dead animal * lb. § 462-464. without owner's consent. The State v. ^ Ante, § 133-135 ; Stat. Crimes, § 406. 85 § 173 SPECIFIC OFFENCES. [bOOK III. Streets in the city of Cambridge, to wit, the sidewalks in Harvard Square and North Avenue, by rooting and destroying the same, so as to interfere with the convenient use of the same by all passengers ; ■" against the peace of the Commonwealth and of the said city of Cambridge, and contrary to the form of the statute and of the by-law of said city in such case made and provided.^ § 172. Distraining and Impounding. — At the common law, one finding cattle on his land doing damage may distrain and im- pound them.^ This right and the general subject of impounding cattle have been much legislated upon in our States ; and, in some of them, not in all,* but perhaps generally, the statutes have superseded the common law.^ Hence, — § 173. Pound Breach and Rescuing Cattle. — Within principles explained in another connection,^ the rescue, by breaking the pound or otherwise, of cattle lawfully distrained under either common-law or statutory authority, is indictable at the common law. So, at least on the better reason, the doctrine appears pretty plainly to be ; though, as to cases in which there has been no assault or other breach of the peace, the authorities to it are a little contradictory and confused.' In the words of Chitty, "pound breach is an injury and insult to public jus- tice, and as such seems to be indictable at common law."^ If ' Commonwealth v. Curtis, 9 Allen, Colden k. Eldred, 15 Johns. 220; Rockwell 266. V. Nearing, 35 N. Y. 302 ; Fitzwater v. 2 Ante, § 135 ; Stat. Crimes, § 406, Stout, 4 Harris, Pa. 22 ; Collins v. Larkin, 407. 1 R. I. 219. 3 1 Chit. Gen. Pract. 656-659 ; Co. « Crim. Law, I. § 465-468. See II. Lit. 96 a, 161a; 3 Bl. Com. 6 ; Vaspor v. § 1013 ; Reg. v. Williams, 1 Den. C. C. Edwards, 12 Mod. 658; Storey v. Robin- 529, 4 Cox C. C. 87, 2 Car. & K. 1001; son, 6 T. R. 138; Gimbart v. Pelah, 2 Reg. r. Brenan, 6 Cox C. C. 381 ; Reg. o. Stra. 1272; Anscomb v. Shore, 1 Camp. Boyle, 7 Cox C. C. 428. 285; Tyrringham's Case, 4 Co. 36 a, 38 6; '1 Russ. Crimes, 5th Eng. ed. 560; 2 Anonymous, 3 Wils. 126 ; Dovaston a. Hawk. P. C. c. 10, § 56 ; The State v. Payne, 2 H. Bl. 527 ; Hawkins v. Eckles, Young, 18 N. H. 543; Rex u. Bradshaw, 2 B. & P. 359 ; Clement a. Milner, 3 Esp. 7 Car. & P. 233. According to the latter 95 ; Whiteman v. King, 2 H. Bl. 4 ; Sheriff case, and in reason, the rescue is indictable V. James, 1 Bing. 341 ; Gulliver u. Cozens, from the time when the cattle are "in the 1 C. B. 788 ; Cape v. Scott, Law Rep. 9 custody of the law." In The State v. Bar- Q. B. 269. rett, 42 N. H. 466, the court observed : * Hamlin v. Mack, 33 Mich. 103. And "At common law, a rescue [not speaking see Oil v. Rowley, 69 111. 469. of the rescue of a person arrested or im- f Eastman v. Rice, 14 Maine, 419; prisoned] is defined as the taking and set- Morse V. Reed, 28 Maine, 481 ; Sloan o. ting at liberty, against law, a distress Hubbard, 34 Ohio State, 583 ; Dent v. taken for rent, or services, or damage Ross, 52 Missis. 188; Mooney u. Maynard, feasant." p. 469. And see The State v. 1 Vt. 470 ; The State o. Young, 18 N. H. Young, 18 N. H. 543. 543 ; Crocker v. Mann, 3 Misso. 472. See » 2 Chit. Crim. Law, 204, note. 86 CHAP. XII.] ANIMALS. § 175 this were not so, still we have statutes making it indictable.^ Now, — § 174. Common-law Indictment. — The indictment at the com- mon law sets out the impounding, and then the rescue, or the breach of the pound, according to the facts.. One of Chitty's forms for pound-breach and rescue, some parts whereof are need- lessly plethoric, is, — That on, &c. at, &c. [ante, § 80], one X, &c. [ante, § 79] took and dis- trained one mare and two colts of the cattle of A, &c. [the defendant, ante, § 74-77], [of the price of, &c. ; in other forms in Chitty the words are, of the value, &c.^], in and upon a certain parcel of land of the said X there situate being found then wrongfully feeding, depasturing, destroying the growing grass, and doing damage to the said X,' as a distress for the dam- age then and there done and doing by the said animals ; and did thereupon then and there impound and keep the same in the common pound of, &c. and detain them in said common pound there as a distress for the cause and damage aforesaid.* And [the jurors, &c. do further present^], that, while the said mare and colt were so impounded and remaining in the said common pound there as a distress for the cause aforesaid, the said A, on, &c. [with force and arms^], at, &c. aforesaid, broke and entered the said common pound, and, without the license and against the will of the said X, and without any satisfaction having been made to him for the said damage, did then and there unlawfully rescue, take, lead, and drive away the said mare and colt from and out of the said common pound ; [in contempt, &c. to the evil example, &c. and'] against the peace, &c.' § 175. Indictment on Statute. — Under a statute to punish "any one who shall make any pound breach, or in any way, directly or indirectly, convey or deliver any creature out of any pound without lawful authority," the allegations may be, — That A, &c. on, &c. at, &c. did unlawfully break and set open a good, lawful, and sufficient pound, erected and maintained by said town of, &c. for restraining and impounding all creatures therein liable to be impounded; 1 Commonwealth v. Beale, 5 Pick. 514. 6 Unnecessary. Ante, § 115, note. 2 I am not aware of any reason requir- ^ Unnecessary. Ante, § 43. ing the price or value to be alleged, and I ' Unnecessary. Ante, § 48 ; Crim. do not believe it to be necessary. It is Proced. I. § 647. not in the form in Rex v. Bradshaw, 7 Car. 8 2 Chit. Crim. Law, 204. For other & P. 233. See, for the rule, Crioa. Proced. forms, see lb. 405, 406 ; The State v. L § 540, 541, 567 ; Stat. Crimes, §427,444, Young, 18 K H. 543. For rescue only, 445, 464, 945. before impounding, see 2 Chit. Crim. Law, ' I have slightly abridged this allega- 203 ; Rex v. Bradshaw, 7 Car. & P. 233 ; tion. The State v. Barrett, 42 N. H. 466 ; Com- * I am still abridging the form a little. monwealth v. Hubbard, 24 Pick. 98. 87 § 177 SPECIFIC OFFENCES. [BOOK III. and did then and there without lawful authority deliver and convey out of said pound one cow and one heifer,^ then being in said pound lawfully impounded ; against, &c.^ § 176. Estrays — (Taking up and using). — One of the princJ^al offences under our estray laws^ is the taking up and using of an estray without complying with the statutory directions. A good indictment for it, upon the Texas statute, is the following : — That A, &c. on, &c. at, &c. did unlawfully, without complying with the laws regulating estrays,* take up and use [a certain estray animal, to wit,'] a certain estray mare,^ of the value of fifty dollars,' the property of* some person to the jurors unknown ; against, &c.' VI. The Unlicensed Keeping of Dogs. § 177. Offence — Indictment or Complaint. — There are, in some of our States, statutes requiring the keepers of dogs to procure licenses therefor, and making a non-compliance with their pro- visions criminal. But they are not so general as to render a dis- cussion of them, and a presentation of the forms of procedure, a judicious use of our space. It will suffice to cite some cases wherein also are forms.'" 1 A particular description of the ani- ' The State v. Apel, 14 Texas, 428. mals, such as their color, marks, and the ° Davis v. The State, 2 Texas Ap. 162. like, need not be given. Ante, § 165 and ^or another form, see The State v. Cara- note ; Stat. Crimes, § 464. bin, supra. For a foi-m for Taking up 2 The State v. Young, 18 K H. 543. and Converting to own Use, see Greene 8 Stat. Crimes, § 462-464. v. The State, 79 Ind. 537. See Dixon v. * The State v. Hutchinson, 26 Texas, The State, 4 Blackf. 312. Ill ; The State v. Moreland, 27 Texas, '" Blair v. Forehand, 100 Mass. 136, 726. 137, note ; Commonwealth v. Dow, 10 Met. 5 Not necessary. The State u. Cara- 382 ; Jones v. Commonwealth, 1 5 Gray, bin, 33 Texas, 697. 193 ; Commonwealth v. Gorman, 16 Gray, 8 That this description of the animal is 601 ; Commonwealth v. Thompson, 2 Al- suiBcient, see ante, § 165, 175; Stat. Crimes, len, 507 ; Commonwealth b. Brahany, 123 § 464. Mass. 245 ; Commonwealth v. Washburn, ' The value is important in Texas, as 128 Mass. 421. explained in Stat. Crimes, § 464. See ante, § 174 and note. CHAP. XIII.] AESON AND OTHER BURNINGS, § 179 CHAPTER XIII. AESON AND OTHER BURNINGS.^ § 178. Introduction. 179-190. The Substantive Offence. 191-195. Attempts. 196-199. Practical Suggestions. § 178. How Chapter divided. — We shall consider the indict- ment as to, I. The Substantive Offence ; II. Attempts. To which will be added, III. Practical Suggestions. I. The Substantive Offence. § 179. Common-law Indictment. — The ordinary indictment for common-law arson is, to copy Chitty's form, which is needlessly plethoric, — That A, &c. [not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil ^], on, &c. [with force and arms'], at, &c. a certain house ^ of one X [ante, § 79] there situate,' feloniously, wilfully, and maliciously ' did set fire to and [the same house 1 For direct expositions of these offences, is to omit them. Crim. Proced. II. §41, with the pleading, practice, and evidence, 135. see Crim. Law, II. § 8-21 ; Crim. Proced. ^ "Feloniously" is, of course, neces- II. § 31-53. Incidental, Crim. Law, I. sary, the offence being felony. " Volun- §224, 318, 329, 334, 514, 559, 577, 686, tarily " may be substituted for "wilfully" 765, 781 ; Crim. Proced. I. § 540, 573, if the pleader chooses. "Maliciously" is 613; Stat. Crimes, § 207, 213, 277, 289, probably indispensable ; but it is not clear 291,310,311. that either "voluntarily" or "wilfully" ^ Unnecessary. Ante, § 44. must be connected with it, for in meaning " Unnecessary. Ante, § 43. it seems to include them. Perhaps not all * Not " dwelling-house," as in burglary, these distinctions are firmly established. but "house." Crim. Proced. II. § 34. And the rules may be different under stat- ' The words " there situate " are com- utes, for then the statutory words should mon ; but they are believed not to be neces- be followed. Consult Crim. Proced. I. sary, though this is not in all the States § 6i3; II. § 42-44; 3 Chit. Crim. Law, clear beyond argument. Where they are 1122 ; 1 Hale P. C. 567, 569 ; 3 Inst. 67. certainly not necessary, the better practice 89 §180 SPECIFIC OFFENCES. [book III. then and there, by such firing as aforesaid, feloniously, wilfully, and mali- ciously did ^] burn [and consume ^] ; against the peace, &o.° § 180. General Formula. — Most of the indictments are drawn on statutes, some of which have enlarged the bounds of this fel- ony, and others created misdemeanors analogous to it. They follow the common-law form, except that they substitute for the common-law terms such statutory ones as differ from them, and add any ingredients which the statutes have introduced into the offence.* The outline, to be filled up and varied to cover the particular facts and statutory words, may be, — That A, &c. on, &c. [if the time of day is material add it here, as ex- plained ante, § 86, 87 ^], at, &c. [ante, § 80], did feloniously,^ wilfully, and maliciously ' set fire to [or burn, employing the statutory expression °] a certain house [or dwelling-house, or shop, or barn, using the statutory word] of one X [ante, § 79],° there situate ^^ [adding, if the statute re- quires], with the intent, &c. [or whatever else it has set down as enhancing t^e criminality of — that is, the punishment for — the burning] ; against the peace, &c." 1 This matter in brackets adds nothing to the sense, and it is plainly not necessary. Nor is it always found even in the old in- dictments. For illustration, Rex v. Ped- ley, Cald. 218 ; Bex v. Scofield, Cald. 397. 2 " And consume " not necessary ; and, it is believed, not common. " Burn " is essential, but pi-obably " set fire to" need not be added ; though, in the absence' of adjudications to the point, it is practically safer to employ both terms. 3 3 Chit. Grim. Law, 1127. And com- pare form in Matthews Grim. Law, 436. « Ante, § 31 ; Grim. Proced. II. § 34, 35. ^ As, see The State v. Hurley, 71 Maine, 354. s Omit " feloniously " in misdemeanors. t But follow the statutory words. And see ante, § 179 and note; TuUer v. The State, 8 Texas Ap. .501, 505. s The two expressions are defined and distinguished in Stat. Grimes, § 310,311. And see Grim. Proced. L § 612, 613 ; II. § 47 ; Rex v. Smith, 4 Gar. & P. 569 ; The State V. Johnson, 19 Iowa, 230; Mary v. The State, 24 Ark. 44. 9 Grim. Proced. II. § 36-39. 1" As to whether these words should be 90 employed or not, see ante, § 179 and note. 11 For forms, see 4 Went. PI. 20-22 ; 3 Ghit. Grim. Law, 1127-1131 ; Archb. Grim. PI. & Ev. 19th ed. 555, 561, 563-570; Da- vis Prec. 49-54; 6 Gox G. C. App. 23, 102-107 ; Rex v. Hill, 20 Howell St. Tr. 1317 ; Rex V. Pedley, Gald. 218 ; Rex ■;. Scofield, Gald. 397 ; Rex v. Newiil, 1 Moody, 458 ; Rex v. Woodward, 1 Moody, 323 ; Reg. v. Child, Law Rep. 1 G. C. 307, 12 Gox G. C. 64 ; Reg. o. Manning, Law Rep. 1 G. G. 338, 12 Cox C. G. 106; Reg. V. Newboult, Law Rep. 1 C. G. 344, 12 Gox C. G. 148 ; Hunter's Case, 1 Lewin, 3, 4 ; McDonald's Case, 2 Lewin, 46 ; Reg. V. Paice, 1 Car. & K. 73 ; Reg. u. Fletcher, 2 Gar. & K. 215 ; Reg. v. Munson, 2 Cox C. C. 186; Reg. v. Lyons, 8 Gox G. C 84, Bell, 38, 43 ; Reg. v. Batstone, 10 Gox C. G. 20; Reg. V. Faulkner, 13 Cox C. C. 550 ; Reg. i;. Greenwood, 23 U. G. Q. B. 250 ; Reg. V. Gronin, 36 U. C. Q. B. 342. Alabama. — Martin v. The State, 28 Ala. 71 ; Grim v. The State, 43 Ala. 53 ; Hinds V. The State, 55 Ala. 145 ; Cheatham v. The State, 59 Ala. 40 ; Walker v. The State, 61 Ala.pO; Hudson f. The State, 61 Ala. 333 ; Lockett v. The State, 63 Ala. 5. Arkansas. — Mary v. The State, 24 Ark. CHAP, xni.] ARSON AND OTHBE BURNINGS. §181 § 181. Under Particular Statutes : — Mill. — Under a statute making one a felon who " shall unlaw- fully and maliciously set fire to any church, chapel, or meeting- house, or shall unlawfully and maliciously set fire to any house, stable, coach-house, outhouse, warehouse, shop, mill, or granary," the allegations for the arson of a mill may be, — That A, &c. on, «&c. at, &c. did feloniously, unlawfully, and maliciously set fire to and burn one mill [there situate ■'], the property of one X [with intent thereby to injure the said X ^] ; against, &c.^ 44 ; Mott V. The State, 29 Ark. 147, 148. California. — People v. Hood, 6 Cal. 236 ; People v. Scliwartz, 32 Cal. 160. Connecticut. — The State o. Byrne, 45 Conn. 273. Georgia. — McLane v. The State, 4 Ga. 335. Illinois. — Staaden v. People, 82 111. 432. Indiana. — Wolf v. The State, 53 Ind. 30 ; Johnson v. The State, 65 Ind. 204. Iowa. — The State v. Johnson, 19 Iowa, 230. Louisiana. — The State v. Gregory, 33 La. An. 737, 739. Maine. — The State v. Ricker, 29 Maine, 84 ; The State v. Hurley, 71 Maine, 354. Maryland. — Gibson o. The State, 54 Md. 447. Massachusetts, — Commonwealth v. Macomber, 3 Mass. 254 ; Commonwealth u. Wade, 17 Pick. 395 ; Commonwealth V. Squire, 1 Met. 258 ; Commonwealth v. Harney, 10 Met. 422 ; Commonwealth v. Flynn, 3 Cush. 529 ; Commonwealth v. Barney, 10 Cush. 480 ; Commonwealth V. Lamb, 1 Gray, 493 ; Commonwealth v. Goldstein, 114 Mass. 272 ; Commonwealth V. Bradford, 126 Mass. 42 ; Commonwealth K. Allen, 128 Mass. 46. Michigan. — McDade v. People, 29 Mich. .50; People y. Thompson, 37 Mich. 118; People V. Fairchild, 48 Mich. 31, 33. Mississippi. — Lewis v. The State, 49 Missis. 354. New Hampshire. — The State v. Liver- more, 44 N. H. 386. Neio Jersey. — The State v. Price, 6 Halst. 203. New York. — People v. Bush, 4 Hill, N. Y. 133 ; Woodford v. People, 62 N". Y, 117, 119, 5 Thomp. &, C. 539; Levy u. People, 80 N. Y. 327, 328 ; McGarry v. People, 2 Lans. 227 ; Peverelly v. People, 3 Parker C. C. 59, 61 ; Didieu v. People, 4 Parker C. C. 593 ; McDermott v. People, 5 Parker C. C. 102. Nevada. — The State v. Cohn, 9 Nev. 179, 180. iSfarth Carolina. — The State v. Wise, 66 N. C. 120 ; The State v. King, 69 N. C. 419; The State v Jaynes, 78 N. C. 504; The State v. Thorne, 81 N. C. 555. Ohio. — Allen i/. The State, 10 Ohio State. 287. Pennsylvania. — Chapman v. Common- wealth, 5 Whart. 427. South Carolina. — The State v. Pope, 9 S. C 273. Texas. — Thomas v. The State, 41 Texas, 27, 28 ; Cesure a. The State, 1 Texas Ap. 19 ; TuUer v. The State, 8 Texas Ap. 501, 502 ; Bullock v. The State, 12 Texas Ap. 42, Vermont. — The State v. Roe, 12 Vt. 93. Virginia. — Commonwealth v. Posey, 4 Call, 109 ; Uhl v. Commonwealth, 6 Grat. 706 ; Commonwealth v. Page, 26 Grat. 943, 945 ; White v. Commonwealth, 29 Grat. 824. United States. — District of Columbia. United States v. White, 5 Cranch C. C. 38, 73. 1 As to these words see ante, § 179, note. 2 Follow the statutory terms here ; or, where the statute has only the words given in our text, consider whether anything is to be inserted by construction, and let the averments cover such matter if any. Oth- erwise there is probably no occasion for this clause. 8 The State v. Jaynes, 78 N. C. 504. 91 § 184 SPECIFIC OFFENCES. [BOOK III. § 182. Uninhabited Dwelling. — Under statutory terms more complicated, making it a punishable misdemeanor to " wilfully and maliciously burn, either in the night or in the day time, any banking-house, store, manufactory, mill, barn, stable, ship, office, outhouse, or other building whatsoever of another, other than is mentioned in the third section," the indibtment for burning an unfinished and uninhabited dwelling-house within the words " other building," may be, — That A, &c. on, &c. [about the hour of twelve o'clock in the night-time of the same day ^], at, &c. did [feloniously "'], wilfully, and maliciously burn ° a building of one X there situate,* erected for a dwelling-house and not com- pletely finished therefor and not inhabited ; against the peace, &c.' § 183. Public Building. — An indictment on the Vermont stat- ute for arson of a public building may allege, — That A, &o. on, &c. at, &c. did feloniously, wilfully, and maliciously set fire to and burn a certain public building there situate, being a meeting- house erected for the public worship of Almighty God ; against the peace, &c.' § 184. To defraud Insurer. — The indictment for arson of one's own house to defraud insurers ' is necessarily upon a statute, the terms whereof should be covered by the allegations.^ Under the English 43 Geo. 3, c. 58, § 1, making it felony to " wilfully, ma- liciously, and unlawfully set fire to any house, &c. whether such house, &c. shall then be in the possession of the person or per- sons so setting fire to the same, or in the possession of any other person or persons, or of any body corporate, with intent thereby to injure or defraud his majesty, or any of his majesty's subjects, or any body corporate," the form of the indictment for the of- fence now in contemplation was, as given in all the books of practice, omitting obvious surplusage, — 1 This clause is in the foiin now before These allegations make a prima facie case ; me, but it is plainly not necessary. Ante, hence it is not necessary to say that the § 87 ; Crim. Proced. I. § 614. building is "other than is mentioned," &c. 2 Omit " feloniously " if the oflFcnce is lb. ; dim. Proced. I. § 637-639. misdemeanor, Crim. Proced. II. § 35. ^ The State o. Roe, 12 Vt. 93. Own- ' "Burn" being the statutory word, it ership of such a building need not be al- is not necessary, whatever be the common- leged. lb. ; Crim. Proced. II. § 36. law rule, to add " set fire to," &c. Crim. ' Crim. Law, II. § 12, 16 ; Crim. Proced. Proced. II. § 46, 47. II. § 45 a, 50. * See ante, § 179. 8 Crim. Proced. IL § 34, 35, 40, 42, 5 Commonwealth v. Squire, 1 Met. 258. 44-48. 92 CHAP. XIII.] ARSON AND OTHER BURNINGS. §186 That A, &o. on, &c. at, &c. did feloniously, wilfully, maliciously, and unlawfully set fire to a certain house there situate and then in his posses- sion, with intent thereby to injure and defraud the London Insurance Com- pany ; ^ against the peace, &c.^ . § 185. Continued. — Following this model, an information on a Connecticut statute, making it felony in " every owner or tenant of any building who shall wilfully burn it, or anything therein, with intent to defraud another," would be good which alleged, — That A, &c. on, &c. at, &c. did feloniously and wilfully burn a certain building, to wit, a dwelling house, then and there owned by him, with in- tent thereby to defraud the Republic Fire Insurance Company ; against the peace, &c.° § 186. Another's Building to defraud Insurer. — Where one who " wilfully burns a building ... at the time insured against loss or damage by fire, with intent to injure the insurer, whether such person is the owner of the property burnt or not," is made by statute punishable as a felon,* the allegation, if so are the facts, may be, — 1 As to the methods of alleging the name of the corporation, see ante, § 79 and note, and the places there referred to. 2 3 Chit. Crim. Law, 1131 J; 2 Stark. Crim. PI. 2d ed. 443 ; Crown C. C. 10th ed. byEy. 113; Archb. Crim. PI. & Et. 10th Lond ed. 313. " The State u. Byrne, 45 Conn. 273, is before me while writing this form ; but the information, which was therein held to be good, is much more voUiminous and mi- nute. It alleges that A, &c. on, &c. at, &c. "wilfully and feloniously did burn a certain building, to wit, a dwelling house there situated," adding the street and number, "of which building said A was at the time of the burning of the same as aforesaid the owner, with intent thereby to defraud the Republic Fire Insurance Company, a com- pany duly organized and existing under the laws of the State of New York, for the purpose of carrying on a general insurance business throughout the United States, and especially in the State of Connecticut, hav- ing its principal office in the city of New York, and which said corporation had pre- "viously insured said building of said A, to him the said A, against loss by fire, to the amount of fourteen hundred dollars, by its written policy of insurance theretofore issued and delivered by it to said A, a more particular description whereof is to the attorney unknown, which said policy of insurance was at the time of the burning of said house in force as a valid policy of insurance. And so the said attorney says, that on, &c. at, &c. aforesaid, said A, being then and there the owner of said building as aforesaid, the same wilfully and felo- niously did burn, with intent to defraud said insurance company out of said four- teen hundred dollars insurance as aforesaid ; against the peace," &c. I know of no principle of criminal pleading rendering this particularity necessary. And it might prove embarrassing in the evidence. Nor is it usual. Consult, for kindred and illus- trative forms, Commonwealth v. Bradford, 126 Mass. 42 ; Commonwealth v. Goldstein, 114 Mass. 272 ; People v. Schwartz, 32 Cal. 160; Johnson u. The State, 65 Ind. 204; Staaden v. People, 82 111. 432; Reg. v. Lyons, Bell C. C. 38, 8 Cox C. C. 84. 1 Mass. Gen. Stats, c. 161, § 7. 98 § 188 SPECIFIC OFFENCES. [BOOK III, That A, &c. on, &c. at, &c. did feloniously and wilfully burn a certain grist-mill building of one X, there situate, which building was then and there insured against loss and damage by fire, with intent thereby^ to in- jure a certain insurance company called the Springfield Fire and Marine Insurance Company ; against the peace, &C.'' § 187. Burning Goods to injure Insurer. — The allegatious are in like terms as for burning a building, except that the property is described according to the different fact.^ Under two statutes, the one rendering it felony to " unlawfully and maliciously set fire to any . . . building, . . . whether ... in the possession of the offender or in the possession of any other person, with in- tent thereby to injure or defraud any person," * and the other declaring it felony to " wilfully and maliciously set fire to any goods or chattels being in any building the setting fire to which is made felony by" any statute,* it is good in allegation to say,— That A, &c. on, &c. at, &c. did feloniously, wilfully, and maliciously set fire to certain goods and chattels of him the said A, to wit, one straw mat- tress and one thousand lucifer matches, then being in a certain building, to wit, a house, in his possession and there situate,^ with intent thereby to defraud an insurance company known by the name of, &c. ; against the peace, &c.' § 188. Person being in House. — Under a statute declaring it felony to " unlawfully and maliciously set fire to any dwelling- house, any person being therein,"^ the allegations may be, — That A, &c. on, &c. at, &c. did feloniously, unlawfully, and maliciously set fire to his own dwelling-house there situate, his wife Y being then in said dwelling-house [or the dwelling-house of one X there situate, the said X, and Z the wife of the said X, and another person whose name is to 1 There is no need to add here, as in the and note. It is doubtful whether the pos- form before me, " then and there ; " because, session of the house need be alleged, since among other reasons, the time and place of the statute declares it immaterial to the the injury meant to follow the burning are constitution of the offence. See ante, § 182 not essential elements in the ofience. and note. And as the court judicially knows 2 Commonwealth !i. Bradford, 126 Mass. that straw mattresses and lucifer matches 42. are " goods and chattels " and a house is a " For forms, see Commonwealth v. Gold- " building," there seems to be no necessity stein, 114 Mass. 272; Reg. v. Child, Law for the allegation to contain these quoted Rep. 1 C. C. 307 ; Commonwealth v. Ma- words, followed by " to-wit." Crim. Pro- comber, 3 Mass. 254 ; 6 Cox C. C. App. 23, ced. I. § 514, 568, 570, 612, 616, 619 ; Stat. 105-107. Crimes, § 426, 440. * 7 Will. 4 & 1 Vict. c. 89, § 3. ' Reg. v. Lyons, Bell C. C. 38, 43, 8 6 14 & 15 Vict. c. 19, § 8. Cox C. C. 84. » As to "there situate," see ante, § 179 8 24 & 25 Vict. c. 97, § 2. 94 CHAP. Xril.] ARSON AND OTHER BURNINGS. § 192 the jurors unknown, being there in said dwelling-house] ; against the peace, &C.1 § 189. Statutory Degrees. — Some forms under statutes divid- ing arson into degrees^ appear in the cases cited in the note.^ § 190. Accessories — Principals of Second Degree. — In a note, also, cases are referred to containing the allegations against the accessory.* But, for practical use, nothing more or better is required for charging the accessory whether before or after the fact, and the principal in the second degree, than the general forms given in another chapter.^ As to them, the offences now under consideration present no peculiarities. II. Attempts. § 191. Elsewhere — Here. — In addition to the general forms for charging the attempt, given in a previous chapter,^ it is deemed best to insert in this place some particular ones. Thus, — § 192. Burning own House to burn Neighbor's.^ — Condensing some forms from Chitty, we have the following, believed to be good at the common law : — That A, &c. on, &c. at, &c. [unlawfully and maliciously '] devising and intending to feloniously and maliciously burn and consume the house of 1 Arclib. Crim. PI. & Ev. 10th ed. 317, Didieu v. People, 4 Parker C. C. 59.3 (re- 19th ed. 562 ; Reg. v. Paice, 1 Car. & K. 73 ; versed, but not for any defect in the indict- Eeg. V. Fletcher, 2 Car. & K. 215; Levy v. ment, 22 N. Y. 178) ; Levy v. People, 80 People, 80 N. Y. 327, 328 ; Woodford v. N. Y. 327, 328. Second degree. Peverelly People, 62 N. Y. 117, 119, 5 Thomp. & C. v. People, 3 Parker C. C. 59, 61 ; Tlie State 539; Didieu v. People, 4 Parker C. C. 593 v. Cohn, 9 Nev. 179, 180. Third degree, (finally adjudged 22 N. Y. 178). In these McDermott v. People, 5 Parker C. C. 102 ; New York forms, the burning is properly McGarry v. People, 2 Lans. 227. alleged to be in the night, for so the statute * Levy v. People, 80 N. Y. 327, 328 ; requires the fact to be. But the name of McLane v. The State, 4 Ga. 335 ; The the person in the house is not in all of State v. Ricker, 29 Maine, 84; Hunter's them given; why, I have not inquired. It Case, 1 Lewin, 3, 4; Peoplau. Thompson, is in all the English forms. Possibly there 37 Mich. 118. may be a difference of opinion as to the ^ Ante, § 113-122. necessity of alleging the name. I should ' Ante, § 100-112. recommend its insertion as, at least, the ' Crim. Law, I. § 765 ; II. § 20. better practice, wherever its omission is " When these or other similar adverbs not expressly sanctioned by a statute or are made to qualify the verbs " burn and judicial decision. consume," as in this form, I cannot see the ^ Crim. Law, II. § 19; Crim. Proced. necessity of inserting them here also, and II. § 48 a. I should think it reasonably safe to omit 2 First degree. Woodford v. People, them. See post, § 194. 62 N. Y. 117, 119, 5 Thomp. & C. 539; 95 §194 SPECIFIC OFFENCES. [book III. one X there situate, did then and there, with the said intent so to burn and consume the said house of X, unlawfully and maliciously set fire to and burn his own house contiguous and near thereto ; against the peace, &c.^ § 193. Special Statutory Felony. — The indictment on a statute making it felony to " unlawfully and maliciously, by any overt act, attempt to set fire to any building, &c. under such circum- stances that if the same were thereby set fire to the offender would be guilty of felony," ^ may allege, — That A, &c. on, &c. at, &c. did feloniously, unlawfully, and maliciously attempt, by then and there, &c. [stating the overt act], to feloniously, un- lawfully, and maliciously set fire to a certain building, to wit, &c. there situate and then belonging to one X [with intent thereby then and there to injure the said X '] ; against the peace, &c.* § 194. Another Statutory Attempt. — Under a statute, substan- tially in the terms of the unwritten law, providing a punishment for " every person who shall attempt to commit an offence pro- hibited by law, and in such attempt shall do an act towards the commission of such offence, but shall fail in the perpetration. 1 3 Chit. Crim. Law, 1129-1131 u. Chitty's forms are much more Toluminous, but I cannot discover that this condensa- tion omits anything which any legal person would deem essential. For other forms, see Rex v. Wead, 4 "Went. PI. 59, 60 ; Rex V. Broome, 4 Went. PI. 21. And see 4 "Went. Pi. 58. One of Chitty's forms — 3 Chit. Crim. Law, 1129 — is the follow- ing:— That A, &c. on, &o. at, &c. unlawfully and maliciously devising and Intending to set fire to and burn a certain house belonging to him the said A, there situate, [with force and arro.s, useless] unlawfully, wickedly, and ma- liciously did set fire to a certain part of the wooden floor of and belonging to the said house, which said wooden floor was then and there placed on the ground floor of the said house, which said house was then and there contiguous and near to certain dwelling- houses of and belonging to divers of the liege subjects of our said lord the king, situate at, &c. aforesaid, with a wicked intention, by means of such setting fire to the said part of the said wooden floor of and belonging to the said house of the said A, then and there un- lawfully, wilfulh', and maliciously to burn the said house of the said A [so far, it is plain, no offence at the common law is set out, unless the mere fact of contiguity to 96 other houses will supply the defect. Crim. Law, I. § 318, 514, 559, 577 ; II. § 12, 21] ; to the great damage, danger, terror, and af- frightment of the liege subjects of our said lord the king near the house of the said A then and there inhabiting and dwelling, in contempt of our said lord the king and his laws, to the evil example, &c. and against the peace, &c. Assuming the body of this indictment to charge no offence, it is not quite plain how the conclusion can make up the de- ficiency. Evidently it is not good for an attempt; because this requires a specific intent to burn the neighbor's house, and here the alleged intent is simply to burn his own. Crim. Law, L § 729, 731. Still it is possibly good as for a public nuisance, but in the absence of adjudications directly sustaining it I should advise further allega- tions showing the publicity of the place. For the law in this view, see Crim. Law, IL§21. 2 24 & 25 Vict. c. 97, § 8. ' This averment, which is in the form before me, is necessary only where such intent to injure constitutes, by statute, an element in the substantive burning at- tempted. * Archb. Crim. PI. & Et. 19th ed. 567. CHAP. XIII.] AESON AND OTHEE BUENINGS. §195 or shall be intercepted or prevented in the execution of the same,"^ the allegations may be, — That A, &c. on, &c. at, &c. did attempt feloniously,'^ wilfully, and mali- ciously to set fire to and burn " a certain house of one X, there situate, and in pursuance thereof did then and there place and set fire to combustilile materials on certain boards under said house, with the intent feloniously and maliciously to then and there burn thereby the said house [but did then and there fail to perpetrate the offence thus intended *] ; against the peace, &c.° § 195. Solicitations. — On a statute like the one quoted in the last section, or at common law, the indictment for a solicitation, which is a form of attempt,® may aver, — That A, &c. on, &c. at, &c. did unlawfully and maliciously [or, falsely and wickedly ''] solicit and incite ^ one B to feloniously, unlawfully, and ma- liciously* set fire to [or burn, or set fire to and burn] a certain house of one X, situate, &c." [with intent to injure said X "] ; against the peace, &C.12 1 Mass. Rev. Stats, c. 133, § 12; Crim. Law, I. § 743 ; Crim. Proced. II. § 86. 2 Omit this " feloniously " if the attempt is only misdemeanor. ' In one of the forms now before me, the collocation of these words is different ; namely, " did feloniously, wilfully, and maliciously attempt to set fire to and burn." In the form given in the last section, this sort of adverb stands in both places, being repeated. Now, in both places, the offence consists, not in the attempt to burn, but to feloniously and maliciously burn — to commit the felony of malicious burning. Hence, whether we should trust to a court's overlooking an inaccuracy of expression or not, true precision requires these adverbs to stand where they will qualify " set fire to and burn." And the statute proceeded on in this section has no qualifying words to the intent. That in the last section has ; therefore the form there has these words at both places. * This allegation, or something like it, appears to be common in Massachusetts under the statute now in contemplation ; but, in reason, such failure is not an essen- tial part of the prima facie offence of at- tempt, therefore it is probably not neces- sary. See ante, § 182, first note to the 7 form, and the places there referred to. In New York, under a statute in like terms, this allegation does not appear in the cases of attempted arson now before me, wherein the indictments were sustained. People «. Bush, 4 Hill, N. Y. 133 ; McDermott v. People, 5 Parker C. C. 102. And see Crim. Proced. II. § 86 ; post, § 260. 5 Commonwealth v. Flynn, 3 Cush. 529 ; Commonwealth v. Harney, 10 Met. 422. For other forms, see The State v. Johnson, 19 Iowa, 230; Uhl u. Commonwealth, 6 Grat. 706 ; McDade v. People, 29 Mich. .'50. " Ante, § 105, 106. 7 People V. Bush, 4 Hill, N. Y. 133. Or omit these words, see note to the last section. 8 Crim. Proced. IT. § 74. ' Add, " in the night time," where such is an element in the offence solicited. '" It is not necessary, in point of law, that the house should be located in the' county of the solicitation. Crim. Proced. I. § 57. " See ante, § 193 and note. 12 People V. Bush, supra ; People v. , Thompson, 37 Mich. 118; McDermott v. Feo^e, 5 Parker C. C. 102. And see 3 Chit. Crim. Law, 1129 ; post, § 258. 97 199 SPECIFIC OFFENCES. [BOOK III. III. Practical Suffgestions. § 196. Joining Substantive Offence emd Attempt. — By the rules of the common law, the misdemeanor of an attempt to commit the felony of arson cannot be joined in an indictment for the fel- ony. But generally, in our States, the obstacle is in one way or another removed by legislation ;^ and, where it does not inter- pose, the judicious prosecuting officer will, in all cases of possible doubt as to the completion of the offence, so shape his allegations that the conviction may be for the attempt should no more be proved. So, — § 197. Ownership. — If it is uncertain who will be shown at the trial to have been the owner of the structure burned, counts should be joined laying the ownership in different persons.^ But — § 198. Methods of Offending. — We have seen that the forms do not specify the manner of a substantive burning, yet the}"- do that of an attempt. Still, for neither is it ordinarily necessary or judicious to allege different means in different counts ; but, where there is no repugnance, it is better to lay in one count all the ways within the probable proofs, and then the charge will be sustained by showing enough to constitute an offence.^ § 199. The Defendant — will avail himself of the mistakes of the prosecuting officer and the weakness of his proofs. And, as in most cases the evidence will be circumstantial, he will have the usual facilities for creating doubts * which this species of evi- dence affords. 1 Crim. Law, I. § 804-809; The State « Ante, § 19 et seq. V. Sloanaker, 1 Houst. Crira. 62, 65. * Ante, § 162. 2 Compare with ante, § 160. 98 CHAP. XIV.] ASSAULT AND BATTEBT, § 201 CHAPTER XIV. ASSAULT AND BATTERY.^ § 200. Introduction. 201-210. The Indictment in General. 211-226. Special Forms and Aggravations. 227-229. Practical Suggestions. § 200. How Chapter divided. — We shall consider, I. The In- dictment in General ; II. Special Forms and Aggravations ; followed by, III. Practical Suggestions. I. The Indictment in Greneral. § 201. Simple Assault and Battery at Common Law. — Chitty's form is, — That A, &c. on, &c. [with force and arms "], at, &c. in and upon one X [in the peace of God and our Lord the King then and there being '], did make an assault [thus far an assault is alleged, what follows is a charge of a battery *], and him the said X then and there did beat, bruise, wound, and ill-treat [so that his life was greatly despaired of ^], [and other wrongs to the said X then and there did ^] ; [to the great damage of the said X '], and against the peace, &c.^ 1 For direct discussions of these of- these words "when only a slight assault fences, with the pleading, practice, and can be proved." 3 Chit. Criin. Law, 821, evidence, see Crim. Law, II. § 22-62, 69 a- note. They are never necessary. Crim. 72 e; Crim. Proced. 11 § 54-70 a ; Stat. Proced. II. § 5.5 and note. Practically, if, Crimes, § 500-515. Incidental, Crim. Law, in an extreme case, the pleader wishes to I. § 260, 265, 413, note, 422, 470, 548, 553, state anything of the sort, it will be better 736, 746, 788, 792, 795, 843, 861, 862, 867 ; to give the pertinent facts, and not the IL § 698-713; Crim. Proced. I. § 82, 411, "despair" of unnamed third persons. 413, 437, 438, note, 452, 469, 481, note, 548, ^ jj, reason, these indefinite words can- 617; IL § 6 a, 25, 26, 77-85, 297, 303, 366, not afford foundation for any proofs. 512, 513, 554, 579, 646, 651-654, 658, 692, And it is believed that the courts will 859, 881-883, 955, 992, 993, 1000; Stat, so treat them. Crim. Proced. II. § 57. Crimes, § 216, 320, note, 496-499, 744. Plainly, then, it is practically best to omit ^ Not necessary. Ante, § 43. them. ' Unnecessary. Ante, § 47, and places '. Unnecessary. Ante, § 48 ; Crim, Pro- there referred to. ced. II. § 57. * Crim. Proced. II. § 56. 8 3 Chit. Crim. Law, 821. ' Chitty recommends the omission of 99 § 204 SPECIFIC OFFENCES. [BOOK III. § 202. Greater Particularity of Charge. — Where the facts are specially aggravated, and the pleader wishes to set them out more fully, as ground for appealing to the discretion of the court to inflict a heavier punishment, or as in law requiring it,^ he will introduce them in language expressing the truth of the individual case ; for example, to follow a common form, — [After proceeding as in the last form down to " and ill-treat," add] : and the said A did then and there with both his hands violently cast, fling, and throw the said X to, upon, and against a certain brick floor there ; and him the said X, in and upon his head, neck, breast, back, sides, and other parts of his body, with both the feet of him the said A then and there violently and grievously did kick, strike, and beat, giving to the said X then and there, as well by such flinging, casting, and throwing of him the said X as also by such kicking, striking, and beating of the said X as afore- said, in and upon the head, neck, breast, sides, back, and other parts of the body of him the said X, divers bruises, hurts, and wounds ; against the peace, &C.'' § 203. As to which, — if a statute makes such matter essential to a higher punishment to be inflicted, it must be alleged ; but, where the purpose is only to move the discretion of the court, it may as well be presented on the hearing for sentence.^ With us, the statutes point out most of the aggravations worthy of notice, and affix to each its particular consequence ; so that the indictment necessarily alleges, in the statutory words, this aggra- vating matter, and there is little practical temptation, unless per- haps in the States where the jury assess the punishment, to add anything more in aggravation. § 204. statutory Assaults and Batteries — are Ordinarily alleged in the same terms as those at the common law.* ^ The principal exception ^ is in — 1 Ciim. Law, II. § 42, 43, 50; Crim. cietit to aver, that, at a time and place Proced. II. § 63, 63a. named, tlie defendants "did wilfully and ^ 3 Chit. Crim. Law, 821, 822. maliciously assault one Bridget McCoy, s Crim. Proced. I. § 77 et seq.; Crim. contrary to the statute in such cases made Law, I. § 934, 948-950. and provided, and against the peace and ^ Stat. Crimes, § 500, 514, 515. See digni'y of said State." Miller, C. J. ob- ante, § 31, 32. served, that "the information in this case ^ loioa. — It is enacted in Iowa, that the fails to comply with this provision of the information before a justice of the peace statute, in that the 'acts constituting the "must contain ... a statement of the offence' are not stated therein. It accuses acts constituting the offence in ordinary the defendants with committing an assault, and concise language, and the time and for that they committed an assault. It commission of the offence, as near as may would not do to accuse a person with the he." Thereupon it was adjudged not suffi- crime of larceny, and merely allege that he 100 CHAP. XIV.] ASSAULT AND BATTEET. § 205 § 205. Indiana. — In this State there are no common-law crimes,^ though in other respects the common law pervades its criminal as well as civil jurisprudence.^ The statutes making assault and battery punishable have a particular definition for " assault," and another for " assault and battery," into which that for assault does not enter as an element. " An assault is an un- lawful attempt, coupled with a present ability, to commit a vio- lent injury on the person of another." " Every person who in a rude, insolent, or angry manner, shall unlawfully touch another, shall be deemed guilty of an assault and battery." And the courts hold, that the indictment, whether for assault or for as- sault and battery, must cover these respective statutory terms. ^ Hence, while there are some varieties in the forms which have been approved, the following will probably suffice, yet admit of little or no abridgment : — For assault, — That A, &c. on, &c. at, &c. did unlawfully attempt, having then and there the present ability, to commit a violent injury on the person of one X [by then and there in a threatening manner striking at and near said X with a walking-stick* ] ; against the peace, &c. For assault and battery, — That A, &c. on, &c. at, &c. [in and upon one X did unlawfully make an assault ^], and in a rude manner [or insolent manner, or angry manner, or committed larceny at a time and place ' Grim. Law, I. § 35. stated. The acts which in law constitute ^ Bishop First Book, § 58 and note, larceny must be alleged. So in respect to ^ gjat. Crimes, § 512, 513 ; and compare every criminal offence. It will not do to with § 514, 515. accuse a party with the commission of a < I do not think the Indiana reports crime by its technical name merely. The contain any decisions on the sufficiency of acts which make up the offence must be the allegation for a simple assault, where charged. This w.-is so without the statute." nothing is joined to it. The adjudications The State v. Murray, 41 low.i, 580, 581. have been on the simple-assault part of the Still the difference between this form and indictment for an assault and battery or the ordinary one at common law is slight, for an aggravated assault. In such a case, Itswordsare," did wilfully and maliciously the acts performed in aggravation may assault one X ; " those of the common-law stand in the place of what I have here set form are, " Upon one X did make an down in brackets. But, in the absence of assault." The common-law form seems to such acts in averment, it seems to me, in be justifiable only on the grounds of long- principle, that such matter as I have in- continued usage, and the lack of language serted in these brackets, shaped to suit to express the somewhat complicated idea the particular facts, ought to be intro- more minutely. Grim. Proced. I. § 493, duced ; the indictment without it being 494, 497. I do not discover that such too indefinite. See Grim. Proced. II. form is deemed inadequate in Iowa. See, § 86-92. for example, The State v. Newton, 44 s These words are in the form in The lo^a 45 Sl^'e «'• Philley, 67 Ind. 304, and in some ' ■ 101 §205 SPECIFIC OFFENCES. [book III. rude, insolent, and angry manner] did then and there unlawfully touch [with his clenched fist, or with a stick held in his hand, or with the butt end of a gun i] the said X ; against the peace, &c.^ Or, what is practically better, putting the indictment into such form that there may be a conviction for assault if the proof of the alleged battery fails, — That A, &c. on, &c. at, &c. did unlawfully attempt, having then and there the present ability, to commit a violent injury on the person of one X, and therein did then and there, in a rude, insolent, and angry manner, unlawfully touch [with, &c. as before '] the said X ; against the peace, &c.^ For an aggravated assault, or an aggravated assault and bat- tery, it is good and customary to employ the appropriate one of the foregoing forms ; weaving into or introducing after it, before the conclusion, the aggravating matter. The pleader may say, for example, " by," &c. following in substance the statutory terms.^ others; but, as by the Indiana decisions they are inadequate to charge an assault, I cannot see that they are of any use. 1 None of these words, or their equiva- lents, are in the form in The State v. Phil- ley, supra. Query, whether something should not be added to the word " touch " to make the charge more specific. And see . the note before the last. If, as, for example, in Agee u. The State, 64 Ind. 340, the in- dictment proceeds, " by," &c. setting out some statutory aggravation, that, of course, will suffice. In like manner, some of the forms say " touch, beat, bruise," &c. ; and I do not see any weighty objection to this method of averment. 2 The State v. Philley, supra; The State V. Wright, 52 Ind. 307. ^ See the note to the last form. * Thie form in Dickinson w. The State, 70 Ind. 247, 250, which I have not copied very closely, is drawn on this idea. And see McCuUcy u. The State, 62 Ind. 428. ^ Cases containing forms under the several paragraphs of this section are Nash V. The State, 7 Ind. 666; The State f. Farley, 14 Ind. 23 ; Rice c. The State, 1 6 Ind. 298; McCarty v. The State, 16 Ind. 310; Cardert). The State, 17 Ind. 307; The 102 State V. Murphy, 21 Ind. 441; Wall v. The State, 23 Ind. 150; The State v. Mil- ler, 27 Ind. 15; Adell -j. The State, 34 Ind. 543, 544 ; Hamilton v. The State, 36 Ind. 280; Sloan v. The State, 42 Ind. 570 ; Williams v. The State, 47 Ind. 568 ; Greer v. The State, 50 Ind. 267 ; Ryan v. The State, 52 Ind. 167; The State v. Wright, 52 Ind. 307 ; The State v. Throck- morton, 53 Ind. 354 ; Harris v. The State, 54 Ind. 2, 3 ; The State v. Prather, 54 Ind. 63 ; Jarrell v. The State, 58 Ind. 293 ; The State V. Hubbs, 58 Ind. 415 ; The State v. Neff, 58 Ind. 516; Jones v. The State, 60 Ind. 241 ; The State y. Morgan, 62 Ind. 35 ; McCuUey v. The State, 62 Ind. 428 ; Green- wood V. The State, 64 Ind. 250 ; Agee v. The State, 64 Ind. 340; Hughes v. The State, 65 Ind. 39 ; The Slate v. Hattabougli, 66 Ind. 223 ; The State v. Philley, 67 Ind. 304; Pierce v. The State, 67 Ind. 354; Howard v. The State, 67 Ind, 401 ; Shinn V. The State, 68 Ind. 423; Dickinson v. The State, 70 Ind. 247, 250 ; Slusser v. The State, 71 Ind. 280 ; Bryant v. The State, 72 Ind. 400 ; The State v. Maddox, 74 Ind. 105; The State ,.: Smith, 74 Ind. 557; Pierce v. The State, 75 Ind. 199; Hays w. The State, 77 Ind. 450. CHAP. XIV.] ASSAULT AND BATTERY. §206 § 206. General Formula. — Leaving out of view the peculiari- ties of the Indiana practice, we may set down the following as a general formula for the indictment : — That A, &c. [ante, § 74-77] on, &c. at, &c. [ante, § 80] did [wilfully and feloniously i], with an axe [or, &c. specifying any other weapon which by statute aggravates the punishment ^], make an assault ^ on one X [ante, § 79 ; if X was an officer in the execution of his office, or other special person, and this fact enhances as of law the punishment, aver it here], and him the said X [so executing his said office] did then and there beat, wound, and ill-treat * [adding here any other act rendered by the statute essential to the punishment sought to be inflicted] ; with the intent, &c. [setting out, in the statutory terms, any such special intent] ; against the peace, &c. [ante, § 66-69].^ 1 " Feloniously " should be limited to those attempts which the statute makes felonies. Crim. Proced. I. § 533-537. "Wil- fully " is required only when the word is in the statute. lb. II. § 58. 2 Crim. Proced. II. § 63 a, 64. = lb. § 57, 58. The word "assault" is not so technical as not to admit of a substi- tute. Reg. V. Taylor, Law Rep 1 C. C. 194; Reg. v. Canwell, 11 Cox C. C. 263. * No one of these yerbs is essential to the extent of not admitting of a substitute. They, or " beat, bruise, wound, and ill- treat," have in most circumstances, from early times, been commonly employed. I presume "beat" alone will suffice, though I have before me no authorities to the point. " Ill-treat " is, in reason, too inde- finite to be of any effect, nor is there appar- ently any propriety in continuing its use. ^ For forms for the various sorts of as- sault and assault and battery, simple and aggravated, see 2 Chit. Crim. Law, 50, 99, 126-133, 137, 138, 144, 146, 1.55, 157, 201, 202, 208, 504, 538, 553, 555 ; 3 lb. 788, 789, 791, 792, 794, 795, 798, 807, 809, 816, 817, 821-841, 862, 1096 ; 4 Went. PI. 60, 63, 70, 71, 73, 310, 311, 314, 387, 392, 394; 6 lb. 392, 394, 435 ; Rex v. Devonshire, Trem. P. C. 188 ; Rex v. Colepeppar, Trem. P. C. 190 ; Rex v. Pick, Trem. P. C. 240 ; Rex v. Holies, Trem. P. C. 294 ; Rex «. Giles, 7 Howell St. Tr. 1129; Rex v. Bethel, 8 Howell St. Tr. 747; Rex v. Anglesea, 18 Howell St. Tr. 197 ; Rex v. Osmer, 5 East, 304 ; Rex v. Brady, 1 B. & P. 187 ; Reg. r. Mitchell, 2 Q. B. 636 ; Reg. v. Pelham, 8 Q. B. 959, 2 Cox C. C. 17 ; Reg. u. Cres- pin, 11 Q.B. 913; Reg. o. EIrington, 1 B. & S. 688 ; Reg. v. Taylor, Law Rep. 1 C. C. 194, U Cox C. C. 261 ; Sinclair's Case, 2 Lewin, 49; Elmsly's Case, 2 Lewin, 126; Henshall's Case, 2 Lewin, 135 ; Rex v. Williams, 1 Leach, 4th ed. 529; Rex v. Mathews, 2 Leach, 4th ed. 584 ; Rex V. Phipoe, 2 Leach, 4th ed. 673 ; Rex v. Monteth, 2 Leach, 4th ed. 702 ; Rex v. Brady, 2 Leach, 4th ed. 803 ; Rex v. Towle, Russ. & Ry. 314; Rex v. Ford, Russ. & Ry. 329 ; Rex v. Voke, Russ. & Ry. 531 ; Rex V. Rosinski, 1 Moody, 19, 1 Lewin, 11; Rex f. Withers, 1 Moody, 294; Rex v. Briggs, 1 Moody, 318, 1 Lewin, 61 ; Rex V. Hood, 1 Moody, 281 ; Reg. v. Cruse, 2 Moody, 53, 8 Car. & P. 541 ; Reg. v. Craw- ford, 1 Den. C. C. 100, 2 Car. & K. 129;' Reg. V. Cooper, 1 Den. C. C. 459, 3 Cox C. C. 559, 2 Car. & K. 876 ; Reg. v. Hogan, 2 Den. C. C. 277, 5 Cox C. C. 255 ; Reg. a. Phillpot, Dears. 179 ; s. c. nom. Reg. «. Philpott, 6 Cox C. C. 140; Reg. o. Furgu- son. Dears. 427, 6 Cox C. C. 454 ; Reg. v. Yeadon, Leigh & C. 81, 9 Cox C. C. 91 ; Reg. 0. Porter, Leigh & C. 394, 9 Cox C. C. 449 ; Reg. u. Johnson, Leigh & C. 632, 10 Cox C. C. 114; Reg. v. Shannon, Jebb, 209 ; Reg. v. Oulaghan, Jebb, 270 ; Reg. V. Dilworth, 2 Moody & R. 531 ; Rex v. Smith, 2 Car. & P. 449 ; Rex v. Shadholt, 5 Car. & P. 504; Rex u. Butler, 6 Car. & P. 368 ; Reg. v. Button, 8 Car. & P. 660 ; Reg. V. Martin, 9 Car. & P. 215; Reg. v. St. George, 9 Car. & P. 483 ; Reg. v. Lewis, 9 Car. & P. 523 ; Reg. v. Pearce, 9 Car. & P. 667 ; Reg. u. Douglas, Car. & M. 193 ; Reg. V. March, 1 Car. & K. 496 ; Reg. o. 103 §208 SPECIFIC OFFENCES. [book hi. § 207. Less Technical. — The books contain forms less techni- cal than the foregoing, yet doubtless good. They are seldom used in modern practice. Thus, — § 208. With Dog. — If one, being near another with a dog. James, 1 Car. & K. 530 ; Reg. v. Hanson, 2 Car. & K. 912, 4 Cox C. C. 138; Reg. v. McGavaron, 3 Car. & K. 320, 6 Cox C. C. 64 ; Shea v. Reg. 3 Cox C. C. 141 ; Reg. v. Donovan, 4 Cox C. C. 399 ; Reg. v. Bird, 5 Cox C. C. 11, 12; Reg. v. May, 5 Cox C.. C. 176; Reg. v. S. 5 Cox C. C. 279; Reg. v. Heppingstall, 8 Cox C. C. Ill; Reg. u. Canwell, 1 1 Cox C. C. 263 ; Reg. V. Macpherson, Law Rep. 3 P. C. 268, 11 Cox C. C. 604; Reg. v. Smith, 14 Cox C. C. 398; 6 Cox C. C. App. 18, 24-46, 108, 109, 117; Reg. v. McEvoy, 20 U. C. Q. B. 344; Reg. v. Shaw, 23 U. C. Q. B. 616; Reg. V. Richardson, 46 U. C. Q. B. 375. Alabama. — Ben v. The State, 22 Ala. 9; The State u. Clarissa, 11 Ala. !>7 ; Shaw «. The State, 1 8 Ala. 547 ; Reeres v. The State, 20 Ala. 33, 35 ; Thompson v. The State, 25 Ala. 41 ; Clark v. The State, 46 Ala. 317 ; Higginbotham v. The State, 50 Ala. 133 ; Wood v. The State, 50 Ala. 144 ; Meredith u. The State, 60 Ala. 441. Arkansas. — Robinson v. The State, 5 Pike, 659 ; SuUivant v. The State, 3 Eng. 400; McCoy v. The State, 3 Eng. 451; Cole V. The State, 5 Eng. 318; Charles v. The State, 6 Eng. 389 ; The State v. Lonon, 19 Ark. 577 ; Milan v. The State, 24 Ark. 346, 348 ; The State v. Seely, 30 Ark. 162 ; Lacefield v. The State, 34 Ark. 275 ; But- ler V. The State, 34 Ark. 480. California. — People v. War, 20 Cal. 117; People v. English, 30 Cal. 214; People V. O'Neil, 48 Cal. 257 ; People ;;. Swenson, 49 Cal. 388 ; People v. Alibez, 49 Cal. 452 ; People v. Vierra, 52 Cal. 451 ; People V. Glrr, 53 Cal. 629; People v. Gar- cia, 58 Cal. 102. Connecticut. — The State v. Danforth, 3 Conn 112; Soiithworth v. The State, 5 Conn. 325 ; The State v. Nichols, 8 Conn. 496 ; The State v. Wells, 31 Conn. 210. Florida. — Warrock v. The State, 9 Fla. 404 ; Sherman v. The State, 17 Fla. 888. Georijia. — The State v. Howell, 1 Ga. Dec. 158; Monday v. The State, 32 Ga. 672 ; Jones v. The State, 37 Ga. 51 ; Prior .;. The State, 41 Ga. 155; Hansford v. The 104 State, 54 Ga. 55 ; Bard v. The State, 55 Ga. 319 ; Plain v. The State, 60 Ga. 284. Illinois. — Curtis v. People, Breese, 197 ; Curtis u. People, 1 Scam. 285 ; Nixon ;;. People, 2 Scam. 267 ; ConoUy v. People! 3 Scam. 474 ; Beckwith u. People, 26 111. 500; Hanrahan v. People, 91 III. 142, 144. Indiana. — Cases cited ante, § 205. Iowa. — Dollarhide v. United States, Morris, 233 ; The State v. McClintock, 1 Greene, Iowa, 392 ; The State v. McClin- tock, 8 Iowa, 203 ; The State v. Murray, 41 Iowa, 580; The State v. Newton, 44 Iowa, 45; The State v. Graham, 51 Iowa, 72. And see ante, § 204, note. Kansas. — Millar v. The State, 2 Kan. 174; The State !). Einley, 6 Kan. 366 ; The State V. White, 14 Kan. 538 ; The State v. Bybee, 17 Kan. 462; The State v. Miller, 25 Kan. 699. Kentucky. — Commonwealth «. Haw- kins, 1 1 Bush, 603. Louisiana. — The State v. Green, 7 La. An. 518 ; The State v. Munro, 12 La. An. 625 ; The State v. Thomas, 29 La. An. 601 ; The State i,. Bradford, 33 La. An. 921 ; The State v. Richards, 33 La. An. 1294. Maine. — The State v. Roberts, 26 Maine, 263 ; The State v. Palmer, 35 Maine, 9 ; The State v Blake, 39 Maine, 322 ; The State v. Dearborn, 54 Maine, 442 ; The State v. Goddard, 69 Maine, 181. Maryland. — Davis v. The State, 3 Har. & J. 1 54 ; The State v. Dent, 3 Gill & J. 8 ; The State i'. Bell, 27 Md. 675 ; HoUo- han V. The State, 32 Md. 399. Massachusetts. — Commonwealth v. Lan- igan, 2 Law Reporter (old), 49 ; Com- monwealth V. Hunt, 4 Pick. 252 ; Common- wealth V. Kennard, 8 Pick. 133 ; Common- wealth V. Gallagher, 6 Met. 565 ; Com- monwealth V. Hastings, 9 Met. 259 ; Com- monwealth u. Peters, 12 Met. 387 ; Com- monwealth V. Kirby, 2 Cush. 577, 579 ; Commonwealth v. McLaughlin, 12 Cush. 612; Commonwealth o. Randall, 4 Gray, 36 ; Commonwealth v. Ford, 5 Gray, 475 ; Commonwealth u. Creed, 8 Gray, 387; Commonwealth v. Lang, 10 Gray, 11 ; Commonwealth v. Sanborn, 14 Gray, 393 ; CHAP. XIV.] ASSAULT AND BATTERY. § 208 incites it to bite him, this is undoubtedly an assault ; and, if it does bite him, a battery also ; and there is no reason why the Commonwealth f. Bradley, 16 Gray, 241 Commonwealth v. Nickerson, 5 Allen, 518 Commonwealth v. Galavan, 9 Allen, 271 Commonwealth v. Stoddard, 9 Allen, 280 Commonwealth v. Eagan, 103 Mass. 71 Commonwealth v. O'Brien, 107 Mass. 208 Commonwealth v. Tobin, 108 Mass. 426 Commonwealth v. Bearse, 108 Mass. 487 Commonwealth v. McGrath, 115 Mass. 1.W ; Commonwealth v. Thompson, 116 Mass. 346 ; Commonwealth i). Ducey, 126 Mass. 269 ; Commonwealth v. Blaney, 133 Mass. 571. Michigan. — Shannon v. People, 5 Mich. 71; People u. McDonald, 9 Mich. 150; Rice V. People, 15 Mich. 9, 15; Hanna v. People, 19 Mich. 316 ; People u. Lynch, 29 Mich. 274. Minnesota. — The State ii. Dineen, 10 Minn. 407 ; The State v. Garvey, 11 Minn. 154, 161. Mississippi. — Ainsworth v. The State, 5 How. Missis. 242 ; Jones v. The State, 11 Sm. & M. 315 ; Morgan v. The State, 13 Sm. & M. 242 ; Brantley v. The State, 13 Sm. & M. 468 ; Sarah u. The State, 28 Missis. 267 ; Williams v. The State, 42 Missis.- 328. Missouri. — The State v. Bray, 1 Misso. 180 ; The State v. Comfort, 5 Misso. 357 ; Ruby V. The State, 7 Misso. 206 ; Jennings V. The State, 9 Misso. 862 ; McComas v. The State, 11 Misso. 116; Carrico v. The State, 11 Misso. 579 ; The State v. Jordan, 19 Misso. 212 ; The State v. Anderson, 19 Misso. 241 ; The State v. Magrath, 19 Misso. 678 ; The State v. Freeman, 21 Misso. 481 ; The State v. Bohannon, 21 Misso. 490 ; The State u. Chandler, 24 Misso. 371 ; The State v. Greenhalgh, 24 Misso. 373 ; The State v. Dalton, 27 Misso. 13 ; The State v. Davis, 29 Misso. 391, 395 The State v. Thompson, 30 Misso. 470 The State v. McDonald, 67 Misso. 13, 15 The State i. Chumley, 67 Misso. 41 ; The State V. Little, 67 Misso. 624 ; The State V. Hays, 67 Misso. 692; The State v. Harper, 69 Misso. 425 ; The State v. Van Zant, 71 Misso. 541 ; The State k. Painter, 67 Misso. 84. Nebraska. — 'Eisk v. The State, 9 Neb. 62, 63. Nevada. — The State v. Lawry, 4 Nev. 161 ; The State v. O'Flaherty, 7 Nev. 153 ; The State v. Roderigas, 7 Nev. 328, 330 ; The State v. Robey, 8 Nev. 312. New Hampshire. — The State v. Rol- lins, 8 N. H. 550 ; The State o. Calligan, 17 N. I-L 253; The State v. Hilton, 32 N. H. 285 ; The State v. Bean, 36 N. H. 122 ; The State v. Webster, 39 N. H. 96 ; The State v. Hardy, 47 N. H. 538 ; The State w. Roberts, 52 N. H. 492. New Jersey. — The State v. Mairs, Coxe, 453. New York. — People v. McKinnon, 1 Wheeler Crim. Cas. 170; People v. Moore, 3 Wheeler Crim. Cas. 82; People v. Hol- comb, 3 Parker C. C. 656 ; People v. Da- vis, 4 Parker C. C. 61 ; O'Lcary v. People, 4 Parker C. C. 187; Nelson v. People, 5 Parker C. C. 39 ; La Beau v. People, 6 Pai-ker C. C. 371 ; Lenahan v. People, 5 Thomp. & C. 265 ; People v. White, 55 Barb. 606; People v. Pettit, 3 Johns. 511 ; Dawson u. People, 25 N. Y. 399 ; People V. Casey, 72 N. Y. 393, 394 ; Pontius v. People, 82 N. Y. 339. North Carolina. — The State v. Sam, 2 Dev. 567 ; The State v. Tom, 2 Jones, N. C. 414 ; The State v. Sprinkle, 65 N. C. 463 ; The State v. Scott, 72 N. C. 461 ; The State V. Dancy, 83 N. C. 608. OAio. — White u. The State, 13 Ohio State, 569 ; O'Meara v. The State, 17 Ohio State, 515. Oregon. — The State v. Doty, 5 Oregon, 491. Pennsylvania. — Stout v. Common- wealth, 11 S. & R. 177; Hunter «. Com- monwealth, 29 Smith, Pa. 503 ; Mears v. Commonwealth, 2 Grant, Pa. 385. South Carolina. — The State o. Hailey, 2 Strob. 73 ; The State v. McKettrick, 14 S. C. 346, 348. Tennessee. — Haslip v. The State, 4 Hayw. 273 ; Evans v. The State, 1 Humph. 394; The State v. Freels, 3 Humph. 228; Williams t/. The State, 8 Humph. 585; The State u. McCarn, 11 Humph. 494; Harrison v. The State, 2 Coldw. 232; Nevills V. The State, 7 Coldw. 78 ; Dillard v. The State, 3 Heisk. 260; Brown v. The State, 6 Baxter, 422; Logan v. The State, 2 Lea, 222 ; The State v. Saylor, 6 Lea, 586. Texas. — The, State v. Rutherford, 13 105 209 SPECIFIC OFFENCES. [book III. offence should not be charged in the ordinary way according to the legal effect of the act. But it may equally well be alleged according to its outward form ; ^ and, for the latter, Chitty fur- nishes the following precedent : — That A, &c. on, &c. at, &c. did unlawfully incite, provoke, and encourage a certain dog of and belonging to him the said A to bite one X, by means whereof the same dog did then and there grievously bite the said X in and upon the right leg of him the said X, thereby then and there grievously hurting and wounding the said leg of him the said X ; against the peace, &C.2 § 209. Driving against Carriage. — On the same principle pro- ceeds the following precedent, while yet the common form would doubtless be equally good : — That A, &c. on, &c. at, &c. in the public highway there, unlawfully, wilfully, and violently did drive and force a certain horse and cart, under his care and guidance, at and against a certain chaise drawn by two horses, under the care of one X, by means whereof the said X was then and there Texas, 24 ; The State v. Davis, 26 Texas, 201 ; The State v. Nations, 31 Texas, 561 ; The State v. Killough, 32 Texas, 74 ; The State V. Bradley, 34 Texas, 95 ; Blackburn V. The State, 39 Texas, 153 ; Bittick v. The State, 40 Texas, 117; The State v. Walker, 40 Texas, 485; The State v. Coffey, 41 Texas, 46 ; Crow v. The State, 41 Texas, 468; The State v. Thompson, 41 Texas, 523 ; The State v. Hartmah, 41 Texas, 562 ; Gorman i: The State, 42 Texas, 221 ; May- field V. The State, 44 Texas, 59 ; Green v. The State, 1 Texas Ap. 82 ; Browning v. The State, 1 Texas Ap. 96; Johnson v. The State, 1 Texas Ap. 130; Browning o. The State, 2 Texas Ap. 47, 49 ; Coney V. The State, 2 Texas Ap. 62 ; Wilks v. The State, 3 Texas Ap. 34 ; Montgomery V. The State, 4 Texas Ap. 140; Greenlee V. The State, 4 Texas Ap. 345, 346 ; Davis V. The State, 4 Texas Ap. 456, 458; Curry . Phipoe, 2 Leach, 4th ed. 673. And see 2 Chit. Crim. Law, 504. On woman quick with child. 3 Chit. Crim. Law, 831. On clergyman. 3 Chit. Crim. Law, 827. On speaker of House of Commons in his place. Eex v. Holies, Trem. P. C. 294. Tearing out hair. 3 Chit. Crim. Law, 822. Beating out an eye. 3 Chit. Crim. Law, 822. In connec- tion with opprobrious language. 3 Chit 8 Crim. Law, 862. And taking away receipt. 3 Chit. Crim. Law, 827 ; 6 Went. PI. 435. On account of money won at play. 3 Chit. Crim. Law, 833. 8 Ante, § 100-112. And see Rex v. Butler, 6 Car. & P. 368. * Crim. Law, II. § 62. 5 Ante, § 106 and note. ^ The form in United States v. Lyles, 4 Cranch C. C. 469, is before me; but, be- sides containing surplusage, it is otherwise not drawn with suflBcient neatness to be properly preserved for use. And see ante, § 106 ; and forms in Rex v. Butler, 6 Car. & P, 368 ; Rex v. Goodman, 13 Howell St. Tr. 359 ; Eex i/. Devonshire, Trem. P. C. 188. ' And see the forms in Commonwealth V. Bearse, 108 Mass. 487, and Common- wealth V. Galavan, 9 Allen, 271, for min- gling poison with intent ; Reg. v. Shannon, Jebb, 209, and The State v. Clarissa, 11 Ala. 57, for attempt to poison ; and Reg. V. James, 1 Car. & K. 530, Reg. v. Lewis, 9 Car. & P. 523, White v. The State, 13 Ohio State, 569, for shooting and attempt- ing to shoot with intent. 113 § 229 SPECIFIC OFFENCES. [BOOK HI. Til. Practical Suggestions. § 227. Surplusage. — The allegations for these offences may, the reader perceives, be short. Hence pleaders are tempted, in order to make a good showing for their work, to crowd the in- dictment with surplusage. They should bear in mind that such matter, while oppressive to the innocent, and never serving any good purpose, not unfrequently increases the chances of escape to the guilty. § 228. Numerous Counts. — The suggestions already given ^ for avoiding numerous counts, by charging in one count the different consistent methods of committing the one offence meant, are oftener applicable in assault and battery than in most other crimes. If, for example, the statute enumerates several weapons, the use of any one of which enhances the guilt, and it is uncer- tain what one of them will be proved to have been employed in the particular instance, no good can come, but evil may, from specifying a single weapon in a count, and covering all by adding count to count. Thus, it is better to charge in one count, that the assault or the battery was committed with a pair of tongs, a hammer, and an axe-handle ; '■' or, with a pistol, and with a large wooden stick, and with a fence-rail, and with a wooden board, being severally deadly weapons ; ^ than to have a count for each weapon, and perhaps compel the jury to select the count on which to found their verdict, and entangle the record. § 229. For Defendant. — In complicated cases, the defendant's counsel has a wide field over which to look and watch for defects in the inculpating proofs. If, for illustration, the indictment is for assault with a particular intent, he will hold the prosecuting power strictly to its duty of satisfying the jury that the defend- ant's purpose was, in fact, the one charged.* But it is needless to -attempt here to specify all. 1 Ante, § 19-21. And see Crim. Pro- = The State v. McClintock, 1 GreeDe, ced. II. § 65, 656. Iowa, 392. 2 The State v. McDonald, 67 Misso. « Crim. Law, I. § 729-736 ; Crim. Pro- 13. ced. I. § 1101, 1126, 1184. For ATTEMPT, see ante, § 100-112. 114 CHAP. XV.] BANKEUPTCT AND INSOLVENCY. § 236 CHAPTER XV. BANKRUPTCY AND INSOLVENCY, OFFENCES CONNECTED WITH.l § 230. What for this Chapter. — The bankruptcy and insol- vency provisions being various and changing, it is deemed not best to enter minutely into them here. No forms need be given. But, for the convenience of practitioners, some references will be made to places where forms may be found for offences under the English and repealed American statutes. § 231. Omitting from Schedule. — The insolvent wilfully omit- ting money or effects from his schedule, and the like.^ § 232. Wot Disclosing. — The bankrupt otherwise concealing or not duly disclosing his effects.^ § 233. Act of Bankruptcy — of various sorts.* § 234. Wrongful P.urchases and Sales — by bankrupt before bankruptcy.^ § 235. Not Surrendering himself, — to be examined, &C.® § 286. Examination on Oath. — The bankrupt refusing to be examined on oath, or to answer questions, or answering them wrongly.' 1 See Crira. Law, I. § 298, 572 a, note ; & F. 165 ; Keg. v. Hilton, 2 Cox C. C. 318 ; Grim. Proced. I. § 53, 1304 ; Stat. Crimes, Reg. v. Swan, 4 Cox C. C. 108. § 29, 103, 129, 183, 823 5 Reg. v. Knight, 14 Cox C. C. 31 ; Reg. ^ Reg. V. Marner, Car. & M. 628. And v. Watkinson, 12 Cox C. C. 271, 4 Eng. see United States v. Block, 15 Bankr. Reg. Rep. 547; Keg. v. Oliver, 13 Cox C. C. 325, 4 Saw. 211 ; United States u. Clark, 588; Reg. o. Hilton, 2 Cox C. C. 318; 4 Bankr. Reg. 59. Reg. v. Harris, 4 Cox C. C. 140; Reg v. 8 2 Chit. Crim. Law, 509, 523 ; 6 Cox Thomas, 11 Cox C. C. 535; United States C. C. App. 90, HI, 128, 133; Ratcliffe's o. Prescott, 2 Abb. U. S. 169, 2 Bis. 325. Case, 2 Lewin, 57 ; Reg. v. Manser, 4 Fost. And see United States v. Pusey, 6 Bankr. & F. 45 ; Rex v. Forsyth, Russ. & Ry. 274; Beg. 284. Nash V. Reg. 4 B. & S. 935, 9 Cox C. C. "6 Cox C. C. App. 110; Reg. «. Ken- 424, 425; Reg. ... Michell, 14 Cox C. C. rick, 1 Cox C. C. 146; Reg. v. Buckwell, 490; Respublica v Tryer, 3 Yeates, 451; 9 Cox C. C. 333; Reg. r. Hill, I Car. & Reg. 0. Harris, 4 Cox C. C. 140. And see K. 168; Reg, v. Hughes, 1 Fost. & F. 726. United States v. Crane, 3 Clif. 211 ; Rex v. '7 Cox C. C. App. 35 ; Rex v. Hynde, Forsyth, Russ. & By. 274. Trem. P. C. 239 ; Rex v. Page, Buss. & Ry. ^ Reg, V. Hillam, 12 Cox C, C, 174, 2 392, 1 Brod. & B. 308, Eng. Rep. 227 ; Reg. v. Baudnitz, 4 Fost. 115 § 239 SPECIFIC OFFENCES. [BOOK III. § 237. Altering Books. — The bankrupt altering or mutilatir - his books of account.^ § 238. Concealing Books. — The bankrupt concealing his books of account.^ § 239. Fraudulent Insolvency — under the Pennsylvania stat- ute.^ 1 Eeg. V. Scott, Dears. & B. 47, 1 Cox = Eex v. Walters, 5 Car. & P. 138, 139, C. C. 164; Reg. v. Braun, 9 Cox C. C. note. 284 ; Eeg. V. Leatherbarrow, 10 Cox C. C. ° Dyott v. Commonwealth, 5 Whart. 637. 67, 69. Eor BAEEATET, see Nuisance. BASTAEDY, see ante, § 159. BATTEEY, see Assault and Battbet. BAWDY-HOUSE, see Nuisance. BEGGING, see Vagkanct. BESTIALITY, see Sodomy. BETTING ON ELECTIONS, see Election Opfences. BIGAMY, see Poltgamt. BLACKIVLAIL, see Thbeatenino Lettebs, &c. 116 CHAP. XVI.] BLASPHEMY AND PROFANENESS. § 241 CHAPTER XVI. BLASPHEMY AND PEOFANENBSS.^ § 240. Surplusage. — The precedents of indictment for these nearly identical offences are so crowded with surplusage, and the decisions on them are so few, that it is not quite plain to how narrow proportions the allegations may be safely and judi- ciously reduced. Yet certainly they may be reasonably short. § 241. Blasphemy at Common Law. — Chitty's common-law form for oral blasphemy is : — That A, &c. [not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil,^ and contriving and in- tending to scandalize and vilify the true and Christian religion as received and publicly professed within this realm of England, and to blaspheme God and our Lord Jesus Christ the Saviour of the world '], on, &c. at, &c. having and holding in his hands a certain cup of vpine, unlawfully, wickedly, and blasphemously, in the presence and hearing of divers liege subjects of our said Lord the King, spoke, pronounced, and with a loud voice published these profane and blasphemous words following, that is to say, '' Here 's a health to Father, Son, and Holy Ghost " (meaning Almighty God, Jesus Christ the Saviour of the world, and the Holy Spirit), and immediately thereupon then and there drank the wine from said cup ; [to the great dis- honor of Almighty God, in contempt and disgrace of the Holy Trinity, to 1 For direct expositions of these offences, intent herp charged. And it is always with the pleading, practice, and evidence, practically best not to aver what need not see Crim. Law, II. § 73-84 ; Crim. Proced. in fact exist ; otherwise the jury, hearing II. § 123-125. Incidental, Crim. Law, I. the indictment read, and not finding the § 498 ; II. § 946 ; Crim. Proced. I. § .557. fact, may refuse to convict. Something 2 The matter in these brackets so far is like this matter appears in the form in The certainly unnecessary. Ante, § 44. State v. Chandler, 2 Harring. Del. 553 ; 3 Speaking without specific judicial de- and, almost as of course, in such forms as terminations before me, I should say that in Rex v. Doyley, Trem. P. C. 225, and the rest of this matter in brackets is mani- Kex v. Taylor, Trem. P. C, 226. But it is festly needless, and better omitted. If one not in the form in People v. Buggies, 8 from foul-mouthed recklessness utters the Johns. 290 ; or The State w. Moser, 33 Ark. blasphemous words, plainly he commits 140; or Commonwealth v. Kneeland, 20 the offence, though he has not the specific Pick. 206. 117 § 243 SPECIFIC OFFENCES. [BOOK III. the great scandal of the profession of the Christian religion, to the evil example of all others in the like case offending,^] and against the peace, &C.2 § 242. Analogies. — The indictment wUl follow the analogies in " Libel and Slander," the forms under which head will be ser- viceable here.^ And for some varieties of the offence, particu- larly of profaneness, and even of blasphemy, the analogies from "Nuisance" may be helpful ;* while yet the conclusion "to the common nuisance," &c.^ is not in use or probably necessary. § 243. General Formulas. — The following formulas, which, when the indictment is on a statute, may be varied with the stat- utory terms, will be helpful, — Oral. — That A, &c. [ante, § 74-77], on, &c. at, &c. [ante, § 80] did, maliciously and blasphemously \or profanely], in the presence and hearing of divers people there assembled, pronounce, publish, and proclaim the fol- lowing blasphemous \or profane] words ; that is to say [setting out the words according to their tenor ; and, when their meaning is not plain, add- ing explanations, as see the title " Libel and Slander"] ; against the peace, &c. [ante, § 66-69]. Written. — That A, &c. on, &c. at, &c. did maliciously, blasphemously, and profanely write, print, and publish a certain malicious, blasphemous, scandalous, and profane libel, of and concerning God the Creator and Ruler of the world, and of and concerning the Holy Scriptures, and of and concerning the Christian religion [inserting a part or all of these expres- sions according to the fact], in one part whereof are the following words,^ to wit [here setting out the words, with any innuendoes which may be re- quired to make their meaning plain] ; and in another part whereof are the following words, to wit [setting them out, with innuendoes when necessary, as before] ; against the peace, dsc' ' No part of the matter in these brack- Arkansas. — The State v. Moser, 33 6ts is necessary. Ante, § 48. Ark. 140. 2 2 Chit. Crim. Law, 13. The form is Delaware. — The State v. Chandler, 2 similar in The State v. Chandler, supra. Barring. Del. 553. 8 Crim. Proced. II. § 123. Massachusetts. — Commonwealth v. 4 Crim. Law, II. § 79 ; Reg. v. Brad- Kneeland, 20 Pick. 206. laugh, 15 Cox C. C, 217, 230. New York. — People v. Ruggles, 8 ' Crim. Proced. II. § 862-864. Johns. 290. « For various forms of averring, as here. North Carolina. — The State v. Jones, the tenor, see Crim. Proced. I. § 559. 9 Ire. 38 ; The State v. Chrisp, 85 N. C. 7 For other forms, see 2 Chit. Crim. sog. Law, 13-20; Rex u. Doyley, Trem. P. C. Pennsylvania. — Updegraph v. Com- 225 ; Eex v. Taylor, Trem. P. C. 226 ; Rex monwealth, H S. & R. 394. V. Williams, 26 Howell St. Tr. 653; Reg. Tennessee. —Ths State v. Graham, 3 V. Ramsey, 1 Cab. & E. 126 ; Reg. v. Brad- Sneed, 134 ; Young v. The State, 10 Lea, laugh, 15 Cox C.C. 217. And see Rex w. 165. Eaton, 31 Howell St. Tr. 927. 118 CHAP. XVI.J BLASPHEMY AND PROPANENESS. § 244 § 244. On Statute. — The statutes creating these offences differ in terms. Under one rendering it punishable for any persoa to " make use of any profane, violent, abusive, or insulting language toward or about another person in his presence or hearing, which language in its common application is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault," the allegations may be, — That A, &c. on, &c. at, &c. unlawfully and violently did make use of profane and abusive language toward and about and in the presence and hearing of one X then and there being, by then and there saying to the said X, " Go to hell, God damn you ; " which said language was then and there calculated to rouse the said X to anger, and to cause then and there a breach of the peace ; against the peace, &c.* 1 The State v. Moser, 33 Ark. 140. For BRANDING CATTLE, ILLEGAL, see ante, § 165. BREACH OF PRISON, see Pkison Breach, &c. BREAKING HOUSE, see Bueglabt, &c 119 § 246 SPECIFIC OFFENCES. [BOOK III, CHAPTER XVII. BRIBEET.^ § 245. Attempt and Substantive Offence. — An unaccepted offer of money as a bribe — in its nature, a mere attempt — is so often mentioned in our books under the substantive name of bribery,^ that the distinction will not be regarded in the arrange- ment of this chapter. § 246. Common-law Indictment — (Offering Bribe to Constable). — It is a leading form, from an early period and still prominent in the English books, while yet it is needlessly prolix, to say, — That heretofore, to wit, on, &c. at, &c. one M, esquire, then and yet being one of the justices of our said Lady the Queen, assigned to keep the peace for our said Lady the Queen in and for the county aforesaid, and also to hear and determine divers felonies, trespasses, and other misdeeds com- mitted in the said county, did then and there make a certain warrant under his hand and seal, in due form of law, bearing date the day and year afore- said, directed to all constables and other peace officers of the said county, and especially to X, thereby commanding them upon sight thereof to take and bring before him the said M, so being such justice as aforesaid, or some other of her Majesty's justices of the peace for the said county, the body of Y, late of the parish aforesaid in the county aforesaid, to answer [&c. as in the warrant] ; and which said warrant afterwards, to wit, on the day and year aforesaid, at the parish aforesaid in the county aforesaid, was delivered to the said X, then being one of the constables of the same parish, to be executed in due form of law. And [the jurors aforesaid upon their oath aforesaid do further present ^], that A, &c. [the defendant], well know- ing the premises, but contriving and unlawfully intending to pervert the due course of law and justice, and to prevent the said Y from being arrested and taken under and by virtue of the warrant aforesaid, afterwards, to wit, on the day and year aforesaid, at the parish aforesaid in the county afore- 1 For direct elucidations of this offence, ced. I, § 61, 12.51 ; II. § 75 ; Stat. Crimes, with the pleading, practice, and evidence, § 803, 818, 843. see Crim. Law, II. § 85-89; Crira. Proced. ^ Crim. Law, IL § 88; Crim. Pioced. II. § 1-26, 127. Incidental, Crira. Law, I. II. § 126. § 246, 468, 471, 767, 974, 975; Crim. Pro- » Unnecessary. Ante, § 64, 115, note. 120 CHAP. XVII.] BEIBERT. § 247 said, unlawfully, wickedly, and corruptly did offer unto the said X, so being constable as aforesaid, and having in his custody and possession the said warrant so delivered to him to be executed as aforesaid, the sum of ten pounds, if he the said X would refrain from executing the said warrant, and from taking and arresting the said Y under and by virtue of the same, for and during fourteen days from that time, that is to say, from the time he the said A so offered the said sum of ten pounds to the said X as afore- said : and so the jurors aforesaid upon their oath aforesaid do say, that the said A, on the said day of , in the year aforesaid, at the parish aforesaid in the county aforesaid, in manner and form aforesaid, did at- tempt and endeavor to bribe the said X, so being constable as aforesaid, to neglect and omit to do his duty as such constable, and to refrain from taking and arresting the said Y under and by virtue of the warrant afore- said : in contempt of our Lady the Queen and her laws, to the evil and per- nicious example of all others in the like case offending, and against the peace of our Lady the Queen, her crown, and dignity.^ § 247. General Formula. — Subject to be varied by the statute, or by views special to the particular pleader or court, we may set down the following as a good general formula for the in- dictment : — That on, &c. at, &c. [stating briefly, as see note to the last section, the judicial, governmental, or other proceeding or occasion by reason of which the act complained of becomes indictable]. Whereupon A, &c. [the defend- ant, aate, § 74-77], then and there [or, afterward, on, &c. at, &c. ante, § 80, according to the nature of the case], did, well knowing the premises, corruptly and maliciously ^ tender and offer to X [or to said X, proceeding to show his connection with the case if it has not already been explained ; ^ Archb. Crim. PI. & Et. 10th Lond. did then and there deliver the same to the ed. 686, 19th ed. 890; 3 Chit. Crim. Law, said X, commanding them, for a cause there- 696 • 6 Cox C C. App. 114. As to which '" d»b' appearing, whereof the said M had Form. — The question of setting out the then and there jurisdiction, to bring forthwith .. r \ J .!,„ fn-.^/int;^., f^- before him the said M, or any other justice of warrant of arrest, and the foundation lor \ . ■ , \. ^v. . , .^, ■ . • ,„ „ the peace within and for said county, the It, appears to me to be within princ pies ^^^ ^^^ ^ ^^^^ ^^^^ J^^ ^^ discussed ante, § 91-97. Keasomng from ^^^/^^^.^^^t^ ^j^ich differ somewhat in our the views there presented, from the general states]. Whereupon A, &c. [the defend- rules of criminal pleading, and from what ^^^-^^ ^^^ afterward, on, &c. at, &c. well I have observed of the American practice, knowing the premises, and devising to defeat I should deem it sufficient, under the com- the ends of justice, and to enable the said Y mon law of our States, to say, — to escape, corruptly and maliciously offer and tender to the said X, as and by way of a That on, &c, at, &c. M, esquire, being then bribe, five dollars if he the said X would, for one of the justices of the peace within and the space of fourteen days then next foUow- for said county, did, acting in his said office, ing, forbear to execute the said warrant, and in a cause within his jurisdiction, duly issue abstain from taking by virtue of it the said his official warrant, directed to one X, who x into custody ; against the peace, &c. was then and there a constable in and for said ,. a, ■ ., .,, „, county [or, city, &c. according as the fact ^ Where the offence is felony, add fe- mav he], or to any other such constable, and loniously. 121 §248 SPECIFIC OFFENCES. [book hi. or, pay to said X, &c. ; or, accept and receive of and from the said X, &c.] as and by way of a bribe, the sum of, &c. \or, mentioning any other valu- able thing which will appear in evidence], to, &c. [setting out the purpose, &c. of the bribe] ; against the peace, &c. [ante, § 66-69].^ § 248. Election Bribery. — A common sort of bribery occurs in connection with elections. Some of the English precedents of the indictment or information for it are very voluminous,^ but no great expansion of the allegations is necessary.^ Thus, it is adequate under the common law to say, — That on, &c. a meeting of the inhabitants qualified to vote, of ward one in R in the county of K, for the election of one alderman and three common councilmen, was in said ward duly had and held,* and thereat one X was then and there a qualified voter. Whereupon A, &c. [the defendant], then and there wilfully and maliciously endeavoring to influ- ence corruptly the said X concerning his said right of voting at said elec- tion, did then and there oflfer and pay to the said X the sum of two dollars in money' and current bank bills, as and for a bribe, to cast thereat his vote [this appears to be sufficient, but if the proposition of the defendant was that X should vote in a particular way, or for a candidate named, the pleader will in prudence and perhaps of necessity add this specification] ; against the peace, &c.° 1 For forms, see 3 Chit. Crim. Law, 682- 698 ; 4 "Went. PI. 44.5 ; Rex v. Smith, 20 Howell St. Tr. 1225, 1227 ; Reg. v. B.irfoot, 13 East, 506 ; Rex v. Stevens, 5 East, 244; Reg. o. Charretie, 13 Q. B. 447 ; Reg. i>. Boyes, 1 B. & S. 31 1, 312 ; Reg. v. Leatham, 8 Cox C. C. 425 ; Reg. v. Mercer, 17 U. C. Q. B. 602. Alabama. — Diggs v. The State, 49 Ala. 311 ; Cummins v. The State, 58 Ala. 387. Arkansas. — Watson - 117; Rex v. Marshall, 4 Went. PI. 52; Rex V. Turner, 6 Howell St. Tr. 565 ; Rex V. Comer, 1 Leach, 4th ed. 36 ; Rex v. Jones, 1 Leach, 4th ed. 537 ; Rex v. Moun- cer, 2 Leach, 4th cd. 567 ; Rex v. Vander- comb, 2 Leach, 4th ed. 708, 1 Ben. & H. Lead. Cas. 2d ed. 516 ; Rex v. Jenks, 2 Leach, 4th ed. 774 ; Rex v. Dannelly, Russ. & Ry. 310 ; Rex v. Byford, Russ. & Ry. 521 ; Rex v. Marshall, 1 Moody, 158; Rex V. Watkins, 2 Moody, 217, Car. & M. 264; Rex u. Compton, 7 Car. & P. 139; Reg. V. Lawes, 1 Car. & K. 62 ; Reg. v. Clarke, 1 Car. & K. 421 ; Reg. v. Howell, 1 Cox C. C. 190 ; Reg. V. Nicholas, 1 Cox 126 C. C. 218; Reg. v. Frowen, 4 Cox C. C. 266 ; Kerkin v. Jenkins, 9 Cox C. C. 31 1 ; Reg. V. Thompson, 11 Cox C. C. 362; Reg. V. Bailey, Dears. 244, 6 Cox C. C. 241 ; Reg. v. Parsons, Law Rep. 1 C. C. 24. Alabama. — Mason v. The State, 42 Ala. 543; Fisher v. The State, 46 Ala. 717; Anderson v. The State, 48 Ala. 665 ; Mur- ray V. The State, 48 Ala. 675 ; Newman V. The State, 49 Ala. 9 ; Paris ;;. The State, 49 Ala. 25 ; Ward v. , The State, 50 Ala. 120; Pines v. The State, 50 Ala. 153; Beall V. The State, 53 Ala. 460 ; Davis v. The State, 54 Ala. 88 ; Snowu. The State, 54 Ala. 138; Matthews v. The State, 55 Ala. 65 ; Adams u. The State, 55 Ala. 143; Pond v. The State, 55 Ala. 196; Rowland v. The State, 55 Ala. 210 ; Hurt V. The State, 55 Ala. 214; Murphy v. The State, 63 Ala. 1 ; Stone v. The State, 63 Ala. 115; Graves v. The State, 63 Ala. 134; Borara v. The State, 66 Ala. 468; Williams <,. The State, 67 Ala. 183. Arkansas. — Bradley v. The State, 32 Ark. 704 ; Dodd v. The State, 33 Ark. 517, 518. California. — People v. Burgess, 35 Cal. 115 ; People v. Shaber, 32 Cal. 36 ; People i>. Taggart, 43 Cal. 81 ; People v. Beaver, 49 Cal. 57 ; People v. Mitchell, 55 Cal. 236 ; People V. Nelson, 58 Cal. 104. Connecticut. — Lewis v. The State, 1 6 Conn. 32. Georgia. — Griffin v. The State, 26 Ga. 493; Loyd v. The State, 42 Ga. 221; Williams v. The State, 46 Ga. 212; Wood V. The State, 46 Ga. 322 ; Bethune v. The State, 48 Ga. 505 ; Goldsmith v. The State, 63 Ga. 85. Illinois. — Lyons v. People, 68 111. 271. Indiana. — Edwards v. The State, 62 lad. 34. CHAP. XVIII.] BUEGLAET AND OTHER BREAKINGS. § 255 § 255. In Daytime. — Where, by the statutory terms, the of- fence consists of the breaking, entering, &c. in the daytime, the Iowa. — The State v. Jones, 10 Iowa, 206; The State v. Reid, 20 Iowa, 413; The State v. Morrissey, 22 Iowa, 1 58 ; The State v. Hayden, 45 Iowa, 11 ; The State u. Ridley, 48 Iowa, 370 ; The State V. Short, 54 Iowa, 392. Kansas. — The State v. Cassady, 12 Kan. 550 ; The State v. Fockler, 22 Kan. 542 ; The State v. Thompson, 23 Kan. 338 ; The State v. McAnulty, 26 Kan. 533. Louisiana. — The State v. Morris, 27 La. An. 480 ; The State v. Malloy, 30 La. An. 61 ; The State v. Curtis, 30 La. An. 814. Maine. — The State v. Carver, 49 Maine, 588 ; The State v. Bartlett, 55 Maine, 200. Massachusetts. — Tully u. Common- wealth, 4 Met. 357 ; Carlton v. Common- wealth, 5 Met. 532 ; Josslyn v. Common- wealth, 6 Met. 236; Lamed v. Common- wealth, 12 Met. 240 ; Commonwealth v. Williams, 2 Cush. 582 ; Commonwealth V. Doherty, 10 Cush. 52 ; Commonwealth V. Tlvnon, 8 Gray, 375 ; Jennings v. Com- monwealth, 105 Mass. 586 ; Common- wealth V. Glover, 111 Mass. 395 ; Com- monwealth V. Reynolds, 122 Mass. 454; Commonwealth a. Darling, 129 Mass. 112; Commonwealth <^. Moore, 130 Mass. 45; Commonwealth v. Whalen, 131 Mass. 419. Michigan. — Koster v. People, 8 Mich. 431 ; Moore v. People, 47 Mich. 639 ; Hall V. People, 43 Mich. 417, 418. Mississippi. — Roberts v. The State, 55 Missis 421. Missouri. — Conner v. The State, 14 Misso. 561, 565; The State v. Tutt, 63 Misso. 595, 596 ; The State v. Dooly, 64 Misso. 146; The State v. Beckworth, 68 Misso. 82 ; The State v. Butterfield, 75 Misso. 297, 298. Nevada. — The State v. Ah Sam, 7 Nev. 127. New Hampshire. — The State v. Squires, 1 1 N. H. 37 ; The State v. Canney, 1 9 N. H. 135; The State v. Rand, 33 N. H. 216; The State v. Blaisdell, 49 N. H. 81. New York. — Butler v. People, 4 Denio, 68; Fellinger v. People, 15 Abb. Pr. 128; People V. Van Gaasbeck, 9 Abb. Pr. n. s. 328 ; People v. Smith, 1 Parker C. C. 329. North Carolina. — The State v. Jim, 3 Murph. 3 ; The State v. Dozier, 73 N. C. 117 ; The State v. Jordan, 75 N. C. 27 ; The State v. Hughes, 86 N. C. 662. Ohio. — Spencer v. The State, 13 Ohio, 401 ; Hartshorn v. The State, 29 Ohio State, 635 ; Hagar v. The State, 35 Ohio State, 268 ; The State v. Beal, 37 Ohio State, 108, 109. Pennsylvania. — Stewart v. Common- wealth, 4 S. & R. 194 ; Stoops v. Common- wealth, 7 S. & R. 491 ; Hackett v. Com- monwealth, 3 Harris, Pa. 95 ; HoUister v. Commonwealth, 10 Smith, Pa. 103; Hol- land V. Commonwealth, 1 Norris, Pa. 306. Rhode Island. — The State v. Colter, 6 R. L 195. Tennessee. — Davis v. The State, 3 Coldw. 77 ; Wynne v. The State, 5 Coldw. 319; Pardue v. The State, 4 Baxter, 10; Adkinson v. The State, 5 Baxter, 569 ; Wormack u. The State, 6 Lea, 146. Texas. — The State v. Robertson, 32 Texas, 159 ; The State o. Williams, 41 Texas, 98 ; Shepherd v. The State, 42 Texas, 501 ; Johnson v. The State, 1 Texas Ap. 146, 150 ; White v. The State, 1 Texas Ap. 211 ; Searcy v. The State, 1 Texas Ap. 440, 441 ; Martin v. The State, 1 Texas Ap. 525, 527 ; Simms u. The State, 2 Texas Ap. 110; Conoly v. The State, 2 Texas Ap. 412; Coleman v. The State, 2 Texas Ap. 512 ; Burke v. The State, 5 Texas Ap. 74, 76 ; Reeves u. The State, 7 Texas Ap. 276 ; Brown u. The State, 7 Texas Ap. 619, 620 ; Webster V. The State, 9 Texas Ap. 75; Mace v. The State, 9 Texas Ap. 110, 111; Sum- mers V. The State, 9 Texas Ap. 396 ; Hamilton v. The State, 11 Texas Ap. 116; Cohea v. The State, 11 Texas Ap. 622; Lawson v. The State, 13 Texas Ap. 264. Vermont. — The State v. Clark, 42 Vt. 629 ; The State v. Bishop, 51 Vt. 287. Virginia. — Vaughan v. Commonwealth, 17 Grat. 576; Walker v. Commonwealth, 28 Grat. 969 ; Johnson v. Commonwealth, 29 Grat. 796. West Virrjinia. — The State v. Mc- Donald, 9 W. Va. 456 ; The State v. Betsall, 11 W. Va. 703, 705. Wisconsin. — Powell v. The State, 52 Wis. 217. United Slates. — United States i;. Paul, 127 § 258 SPECIFIC OFFENCES. [BOOK III. allegations are the same as in the foregoing formula, except as to time. If the statutes make the same acts punishable in a par- ticular way when committed in the night, and less heavily when committed in the day, the averment of time, at least by the better opinion, may be that they were done on a day named, with no mention of the hour ; while, if in fact they transpired in the night, the defendant may be convicted, yet only the pun- ishment for day-breaking can be imposed.^ Or the allegation may be, — That, &o. [as in the foregoing formula], on, &c. about the hour of three in the afternoon of said day [or, in the daytime of said day], &c.^ § 256. Principals of Second Degree and Accessories. — The methods of joining principals of the second degree, and acces- sories both before and after the fact, which last include under the modern statutes receivers of goods feloniously stolen, are explained in an earlier chapter.^ Some references to cases con- taining forms in burglary and other like breakings may be con- venient.* § 257. Degrees. — The division of burglary into degrees, in two or three of the States, creates in them some questions as to the indictment.^ But they are simple, and the reader can refer to the cases cited for forms.^ II. The Indictment for the Attempt. § 258. By Solicitation. — Filling up the outline of the indict- ment for a criminal solicitation already given,^ we have the fol- lowing form for the misdemeanor of a solicitation to commit a 6 Pet. 141 (place mthin the jurisdiction of * Against Principal and Accessory the United States). before the Fact. — Hex v. Dannelly, 1 Crim. Proced. II. § 133 o ; Common- Russ. & Ry. 310 ; The State v. Cai-ver, 49 wealth !). Reynolds, 122 Mass. 454, 456, 457 ; Maine, 588 ; Commonwealth «. Glover, HI Butler V. People, 4 Denio, 68 ; Summers v. Mass. 395 ; Hartshorn v. The State, 29 The State, 9 Texas Ap. 396, 398. Ap- Ohio State, 635; Loyd v. The State, 42 parently contra is Hall w. People, 43 Mich. Ga. 221; Cohea «. The State, 11 Texas 417. Ap. 622. Against Principal and Ke- 2 Rex V. Marshall, 4 Went. PI. 52 ; Rex ceiver of the Goods. — Commonwealth v. V. Mouncer, 2 Leach, 4th ed. 567 ; Rex w. Darling, 129 Mass. 112. Marshall, 1 Moody, 158; Rex «. Byford, 5 Crim. Proced. II. § 130 and ca^es Russ. & Ry. 521 ; The State i^. Jim, 3 there cited. Murph. 3 ; The State i^. Colter, 6 R. I. « The State v. Tutt, 63 Misso. 595, 596 ; 195. Butler ». People, 4 Denio, 68. 8 Ante, § 113-118. 7 Ante, § 106. 128 CHAP. XVIII.] BURGLARY AND OTHER BREAKINGS. § 260 felonious burglary, good at the common law, and equally so upon a statute if duly expanded to cover its terms, — That A, &c. on, &c. at, &c. [maliciously devising and intending to pro- cure and cause the commission of the felony hereinafter specified'], did then and there solicit and incite one X burglariously and feloniously in the night-time to break and enter the dwelling-house of Y, at, &c.^ and then feloniously to steal, take, and carry away the goods and chattels therein found' [or, then and therein of his malice aforethought feloniously to kill and murder the said Y ; or, then and therein feloniously to ravish and carnally know the said Y forcibly and against her will ; or, if the pleader chooses, he may insert all these and other felonious intents in the one count, connecting them by the conjunction and^l ; against the peace, &c. § 259. By Unsuccessful Act. — Filling up in this place also an outline already given,^ we have the following, good at the com- mon law, and upon any statute the words of which it duly covers, — That A, &c. on, &c. about the hour of eleven in the night-time of the same day, at, &c. with the malicious [and felonious °] intent then and there burglariously and feloniously to break and enter the dwelling-house of one X there situate, and feloniously to steal, take, and carry away the goods and chattels therein found, did then and there burglariously and feloniously put his hands upon a closed window of said dwelling-house and endeavor to raise the same, and with a false key and with some other implement to the jurors unknown endeavor to open a closed outer door of said dwelling- house ; against the peace, &c.' § 260. Same by taking Impression of Key, &c. — Under a stat- ute in terms as given in another chapter,^ following the unwritten law, the allegations may be, — That A, &c. on, &c. [no need to say here in the night], at, &c. unlaw- fully [and feloniously °] devising and intending burglariously and feloni- 1 I do not understand that this matter it is immaterial when and where the solicited in hrackets, however appropriate we may burglary was to be committed. deem it, is of strict rule necessary. Grim. * Grim. Proced. I. § 439 ; II. § 74, 93. Proced. II. § 74 ; ante, § 195. " 5 Ante, §111. 2 It is not essential that the place of 6 Required only when the indictment is the solicited burglary should be in the on a statute making the attempt a felony, county of the indictment. Grim. Proced. ' Compare with forms in Hackett v. I. § 53, 57. Commonwealth, 3 Harris, Pa. 95 ; The 3 It is evident that no other allegation State v. Jordan, 75 N. C. 27. of time than that it was in the night is 8 Ante, § 194. necessary to these averments, and proba- » Necessary only where the attempt is bly none of place ; because, in point of law, felony. 9 129 § 261 SPECIFIC OFFENCES. [BOOK HI. ously to break and enter in the night-time the storehouse of X there situate, and feloniously to steal, take, and carry away the goods and chattels there- in found, did then and there, to facilitate such breaking and entering, un- lawfully, [feloniously], and privately take an impression of the key which unlocked an outer door of said storehouse, and from said impression did then and there make and prepare a false key for the unlocking, breaking, and entering of said storehouse ; against the peace, &c.^ § 261. Possessing Implements. — Under a statute to punish as a felon one " who shall knowingly have in his possession any engine, machine, tool, or implement adapted and designed for cutting through, forcing, or breaking open any building, room, vault, safe, or other depository, in order to steal therefrom any money or other property, knowing the same to be adapted and designed for the purpose aforesaid, with intent to use or employ the same for the purpose aforesaid," the allegations may be, — That A, &c. on, &c. at, &c. did feloniously and knowingly have in his possession thirty false keys,^ &c. adapted and designed for forcing and breaking open houses, stores, shops, rooms, safes, trunks, and vaults, in order feloniously to steal, take, and carry away therefrom such money and other property capable of being stolen as might be found therein ; he the said A then and there feloniously, knowing the said implements and tools to be adapted and designed for the said purpose, intending to use and employ them therefor ; against the peace, &c.' 1 GrifiBn v. The State, 26 Ga. 493. See 375. For other forms, see Archb. Grim, ante, § 194 and note. PI. & Et. 19th ed. 550 ; 6 Cox C. C. App. 2 It is not necessary to say, as in the 66 ; Reg. v. Bailey, Dears. 244, 6 Cox form before me, "certain implements, that C. C. 241; Keg. v. Thompson, 11 Cox is to say, thirty," &c. ; for the court will C. C. 362. Being Found in Dwelliug- judicially know that the things mentioned house witli intent to steal, Kerkin v. Jen- are implements. Ante, § 187, note, and kins, 9 Cox C. C. 311 ; 6 Cox G. C. App. places there referred to. 67. Armed with Intent to break into 8 Commonwealth v. Tivnon, 8 Gray, house. 6 Cox G. G. App. 66, 68. For BURIALS, see Sepulture. BURNING BUILDINGS, see Arson, &c. BY-LAWS, see ante, § 133-136, 171. CARNAL ABUSE, see Rape, &c. 130 CHAP. XIX.] CARRYING WEAPONS. § 263 CHAPTER XIX. CAEEYINa ■WEAPONS.^ ♦ § 262. Common-law ^ Indictment. — Slightly modifying and abridging the terms of an indictment adjudged good at the com- mon law, we have the following : — That A, &c. on, &c. at, &c. did arm himself with pistols, guns, knives, and other dangerous and unusual weapons, and thereupon while so armed did then and there, both in the night-time and in the daytime, go forth into the highways and other public places exhibiting himself to the people there, and then and there to and iu the presence of the said people did pub- licly proclaim and declare it to be his purpose and intent, and it then and there was his purpose and intent, to beat, wound, kill, and murder one X and other persons there being, whereby the public peace was then and there broken, and all persons then and there being were greatly terrified ; against the peace, &c.' § 263. Formula on Statute. — The statutes creating this offence differ so much in their terms and meaning that it becomes spe- cially difficult to construct a general formula for the indictment on them. The following may be of some service : — That A, &c. [ante, § 74-77] on, &c. at, &c. [ante, § 80], did go about the streets and other public places there [or otherwise as the particular statutory terms may require], carrying concealed upon his person [or openly carrying and eishibiting to the terror of the people, or otherwise following the statutory terms and meaning] two deadly weapons, to wit, a pistol loaded with powder and ball, and a bowie-knife ; he the said A not being then and there a traveller [or otherwise negativing the exceptions of the statute] ; against the peace, &c. [ante, § 66-69].^ 1 For the direct discussion of this of- P. C. 330; Eeg. v. Jarrald, Leigh & C. fence, including the pleading, practice, and 301, 9 Cox C. C. 307. evidence, see Stat. Crimes, § 781-801. Alabama. — The State v. Click, 2 Ala. Incidental, Ih. § 238 ; Crim. Proced. I. 26 ; Jones v. The State, 63 Ala. 27. § 588. Arkansas. — Wilson v. The State, 33 2 Stat. Crimes, § 784. Ark. 557 ; Carr v. The State, 34 Ark. 448 ; » The State v. Huntly, 3 Ire. 418. Walker v. The State, 35 Ark. 386. * For forms see Kex t. Dennis, Trem. Indiana. — The State v. Swope, 20 Ind. 181 § 266 SPECIFIC OFFENCES. [BOOK III. § 264. Concealed Weapon. — Under a statute making it a pun- ishable misdemeanor in " every person, not being a traveller, who shall wear or carry any dirk, pistol, bowie-knife, dagger, sword in cane, or any other dangerous or deadly weapon, concealed," the allegations may be, — That A, &c. OD, &c. at, &c. not being then and there a traveller, did carry concealed about his person a fire-arm called a revolver, which then and there was a dangerous weapon ; against the peace, &c.^ • § 265. Same on another Statute. — Under a statute making it a punishable misdemeanor " if any person. shall hereafter carry any concealed deadly weapons, other than an ordinary pocket- knife, except as provided in the next section," the indictment, when the matter of the next section is of a sort not required by the rules of pleading to be negatived therein,^ may be, — That A, &c. on, &c. at, &c. did carry concealed [about his person '] a certain deadly weapon commonly called a slung-shot, and other deadly weapons to the jurors unknown, every one of said deadly weapons being other than an ordinary pocket-knife ; against the peace, &c.* § 266. Carrying privately, to Terror. — Upon a statute making it a punishable misdemeanor to "privately carry any dirk, large knife, pistol, or any dangerous weapon, to the fear or terror of any person," it is good in allegation to say, — That A, &c. on, &c. at, &c. unlawfully did privately carry, to the fear and terror of persons then and there being, a certain large knife, which, then and there was a dangerous weapon ; against the peace, &c.^ 106; TheStatev. Judy, 60lnd.l38; Ride- Leatherwood u. The State, 6 Texas Ap. nour v. The State, 6.5 Ind. 411 ; The State 244; Rainey «. The State, 8 Texas Ap. V. Boss, 74 Ind. 80. 62 ; Pickett v. The State, 10 Texas Ap. Kentucky. — Commonwealth v. McClan- 290. ahan, 2 Met. Ky. 8. i The State v. Swope, 20 Ind. 106. Massachusetts, — Commonwealth v. ^ Crim. Proced I. § 636-639. O'Connor, 7 Allen, 583 ; Commonwealth ' These words are not in the form he- v. Doherty, 103 Mass. 443. fore me; but, if the court should interpret North Carolina. — The State v. Newsom, the statute as embracing them in meaning, 5 Ire. 250. so that it would not be an offence to carry Tennessee. — The State );. Wilbnrn, 7 the weapon apart from the person in a Baxter, 57, 63 ; Porter v. The State, 7 trunk or under the seat of a vehicle in Baxter, 106 ; The State v. Bentley, 6 Lea, which one was riding, the indictment would 205. probably be held ill without them. Crim. Texas. — Scott i>. The State, 40 Texas, Proced. I. § 623-628 ; Stat. Crimes, § 796. 503 ; Smith v. The State, 42 Texas, 464 Porter v. The State, 1 Texas Ap. 477 Lewis V. The State, 2 Texas Ap. 26 132 * Commonwealth 2, 505; Crim. Proced. I. § 61, 437, fence, with the pleading, practice, and 464, 468, 516, 530, 644, 1019, 1022, 1038, evidence, see Crim. Law, II. § 169-240; 1248; Stat. Crimes, § 260, 625, 629, 688, Crim. Proced. II. § 202-245. Incidental, 803. Crim. Law, I. § 432, 592, 593, 597 a, 633- 2 Crim. Proced. I. § 61 ; II. § 206, 236. 639, 767, 768, 792, 801, 814, 974; II. § 86, 141 § 285 SPECIFIC OFFENCES. [BOOK HI. § 282. Overt Act — He should see whether or not it is neces- sary, under the statutes and adjudications of his State, to lay, what is not required by the common law, one or more overt acts, and whether such acts are essential to the constitution of the offence itself,^ and frame his allegations to satisfy the law in this respect. Moreover, — § 283. Nature of "Unlawful." — Conspiracy being the corrupt agreeing together of two or more persons to do, by concerted action, something unlawful, either as a means or an end,^ he should acquaint himself with the meaning of "unlawful " as held in his own State. By the English common law, and the adjudi- cations believed to be the more numerous with us, "unlawful" is not in this connection a synonym for criminal, but it includes also what is forbidden on the civil side of our jurisprudence. Yet the tribunals in some of our States, rather by a series of blunders than by any enlightened examinations of the question, have assumed that " unlawful" means, in criminal conspiracy, indictable; so that, for example, an allegation of a conspiracy to cheat a person named of his money and goods, cheating being necessarily unlawful but not necessarily criminal, is not good, unless criminal methods are set out, — contrary to the English and better American doctrine.'' The pleader must be careful not to mistake how this question is regarded in his own State. § 284. Rule for Indictment. — In conspiracy, the same as in any other misdemeanor,* the rule for the indictment is, that, with reasonable particularity and individualization, it must aver facts which together constitute in matter of law prima facie guilt ; ^ and, if it is on a statute, it must pursue therein the substantial statutory terms.^ Therefore the pleader is required to know what constitutes guilt under the administration of this branch of our jurisprudence in his own State. § 285. Formula. — Unless resulting from some statute, there are probably in the indictment for conspiracy no words so tech- nical as not to admit of substitutes. In the beaten track, a good formula is, — 1 Crim. Law, II. § 192, 193; Crim. ♦ Crim. Proced. I. § 532-537. Proced. 11. § 205, 206, 217, 222. 6 ib. I. § 326, 329-331, 335, 493, 2 Crim. Law, IL § 171. 509, 513, 513 a, 519, 523, 666-584 ; II. » Crim. Law, IL § 172, 178, 185, 198- § 217. 202 ; Crim. Proced. II. § 207-209, 212- « lb. L § 610-612. 217. 142 CHAP. XXIII.] CONSPIEACT. §285 That A, &c. [ante, § 74-77], B, &c. [ante, § 74-77], and, &c. [adding, in the same way, the names of any other persons whom it is desirable to include as defendants'], on, &c. at, &c. [ante, § 80],^ unlawfully and maliciously did conspire, combine, and confederate together" to, &c. [say what. If the thing thus set down is such as the law deems " unlawful," within the meaning of the word in the definition of conspiracy,* the offence is fully charged, and the indictment may conclude here, unless a statute has required an overt net. If such thing is not in this sense unlawful, then the pleader must proceed to allege unlawful means ; thus], by, &c. [proceeding to set out the means whereby the thing was by the conspirators agreed to be accomplished.' Here, by the common law, and under most, not all, of our statutes, the indictment may, if the pleader chooses, conclude. But he may elect to add overt acts,* or the statute may require them. Then the allegations proceed] : And in pursuance of the said unlawful and malicious combination and conspiracy, the said A, B, &c. did afterward, on, &c. at, &c. [here setting out as many and such overt acts as the pleader deems advisable] ; against the peace, &c. [ante, § 66-69].' 1 The indictment sometimes proceeds, " together with sundry other persons whose names are to the jurors unknown." For explanations, see Crim. Proced. II. § 225 ; Crim. Law, II. § 187, 188. There are cir- cumstances in which an allegation of this sort will serve some useful purpose, but generally it does not. 2 As to the place see ante, § 281. 3 Crim. Proced. XI. § 205. * Ante, § 283. 6 It is not necessary to give time and place to this ; because, in matter of law, it is not material when and where the object of the conspiracy was to be carried out. 6 Crim. Proced. II. § 205, 206. ^ For forms see 2 Chit. Crim. Law, 29, 36 ; 3 lb. 1145-1193 ; Archb. Crim. PI. & Ev! 10th ed. 672, 678, 19th ed. 1005, 1013; 4 Went. PI. 79-146 ; 6 lb. 375-383, 387, 398,439,443; 1 CoxC. C. App. 11, 13 ; 4 lb. App. 13, 35, 38 ; 5 lb. App. 8, 9; 6 lb. App. 63-65, 79, 81, 157; 7 lb. App. 15; 8 lb. App. 14 ; Rex v. Turner, Trem. P. C. 82 ; Rex v. Crispe, Trem. P. C. 83 ; Rex V. Freeman, Trem. P. C. 85 Rex v. Gost- wick, Trem. P. C. 187 ; Rex v. Dingley, Trem. P. C. 213 ; Rex v. Grey, Trem. P. C. 215, 9 Howell St. Tr. 127; Rex v. Knox, 7 Howell St. Tr. 763 ; Reg. v. Denew, 14 Howell St. Tr. 895 ; Rex v. Fowke, 20 Howell St. Tr. 1077, 1143, 1185 ; Rex V. Walker, 23 Howell St. Tr. 1055, 1078 ; Rex v. Bedhead, 25 Howell St. Tr. 1003; Rex v. Dunn, 26 Howell St. Tr. 839 ; Rex u. Glennan, 26 Howell St. Tr. 437 ; Rex v. Hedges, 28 Howell St. Tr. 1315 ; Rex v. Hanson, 31 Howell St. Tr. 1 ; Reg. V. Wright, 2 Cox C. C. 336 ; Reg. V. Bailey, 4 Cox C. C. 390 ; Reg. vi Duf- field, 5 Oox C. C. 404 ; Reg. v. White- house, 6 Cox C. C. 38 ; Reg. v. Whitehouse, 6 Cox C. C. 129 ; Reg. v. Hamp, 6 Cox C. C. 167 ; Reg. v. Yates, 6 Cox C. C. 441 ; Reg. v. Brown, 7 Cox C. C. 442 ; Reg. V. Lewis, 11 Cox C. C. 404 ; Reg. v. Gurney, 11 Cox C. C. 414 ; Reg. v. Bunn, 12 Cox C. C. 316; Reg. u. Banks, 12 Cox C. C. 393, 5 Eng. Rep. 471 ; Reg. v. Hib- bert, 13 Cox C. C. 82, 13 Eng. Rep. 433; White V. Reg. 13 Cox C. C. 318 ; Reg. v. Parnell, 14 Cox C. C. 508 ; Rex v. Fergu- son, 2 Stark. 489 ; Rexw. Roberts, 1 Camp. 399 ; Rex v. PoUman, 2 Camp. 229 ; Rex V. Serjeant, Ryan & Moody N. P. 352; Rex V. Bykerdike, 1 Moody &R 179; Rex V. Richardson, 1 Moody &■ R. 402 ; Rex v. Fowie, 4 Car. & P. 592 ; Rex v. Hamil- ton, 7 Car. & P. 448 ; Reg. u. Murphy, 8 Car. & P. 297 ; Reg. u. Vincent, 9 Car. & P. 91 ; Beg. V. Vincent, 9 Car. & P. 275 ; Reg. v. Shellard, 9 Car. & P. 277 ; Reg. V. Goldshede, 1 Car. & K. 657 ; Reg. V. Hall, 1 Fost. & F. 33 ; Reg. v. Esdaile, 1 Fost. & F. 213, 8 Cox C. C. 69 ; Reg. ,i. Kohn, 4 Fost. & F. 68 ; Beg. v. Howell, 4 Fost. &F. 160; Beg. o. Barry, 4 Fost. & F. 389 ; Rex v. Hevey, 1 Leach, 4th ed. 143 § 286 SPECIFIC OFFENCES. [book III- §286. Common Form, with Overt Acts — (To Cheat). — The common method of laying this offence appears in the following familiar form from the English books : — 232 ; Rex v. Eccles, 1 Leach, 4th ed. 274 ; Keg. V. Steel, 2 Moody, 246, Car. & M. 337 ; Reg. «. Mears, 2 Den. C. C. 79, 4 Cox C. C. 423 ; Reg. v. Rowlands, 2 Den. C. C. 364, 5 Cox C. C. 436, 466, 17 Q. B. 671 ; Reg. v. Carlisle, Dears. 337 ; Reg. v. Bullock, Dears. 653 ; Reg. v. Hudson, Bell, 263, 8 Cox C. C. 305; Rex v. Opie, 1 Saund. 300 ; Rex v. Thorp, 5 Mod. 218, 221 ; Reg. v. Best, 6 Mod. 137, 185, 2 Ld. Raym. 1167 ; Rex v. Spragg, 2 Bur. 993 ; Rex V. Vipont, 2 Bur. 1163 ; Rex v. Ris- pal, 3 Bur. 1320 ; Rex i'. Eccles, 3 Doug. 337 ; Rex v. Woolf, 1 Chit. 401 ; Wake- field's Case, 2 Lewin, 1, 7 ; Rex o. Hol- lingberry, 2 Ben. & H. Lead. Cas. 2d ed. 34, 6 D. & E. 345, 4 B. & C. 329 ; Rex <.-. De Berenger, 3 M. & S. 67 ; Rex v. Hunt, 3 B. & Aid. 566 •, Rex v. Biers, 1 A. & E. 327 ; Rex v. Seward, 1 A. & E. 706 ; Reg. V. Peck, 9 A. & E. 686 ; Reg. v. Parker, 3 Q. B. 292 ; Reg. v. O'Connor, 5 Q. B. 16 ; Reg. V. Kenrick, 5 Q. E. 49 ; Reg. v. Blake, 6 Q. B. 126 ; Reg. v. King, 7 Q. B. 782, 795 ; Reg. v. Gonipertz, 9 Q. B. 824, 2 Cox C. C. 145; Reg. v. Button, 11 Q. B. 929, 3 Cox C. C. 229; Reg. v. Thompson, 16 Q. B. 832, 5 Cox C. C. 166 ; Latham v. Reg. 5 B. & S. 635, 9 Cox C. C. 516 ; Mul- cahy V. Reg. Law Rep. 3 H. L. 306, 307 ; Heymann v. Reg. Law Rep. 8 Q. B. 102 ; Reg. V. Warburton, Law Rep. 1 C. C. 274 ; Reg. V. Aspinall, 1 Q. B. D. 730, 2 Q. B. D. 48, 13CoxC. C. 231. Alabama. — The State v. Cawood, 2 Stew. 360 ; The State (/. Murphy, 6 Ala. 765 ; Miles i'. The State, 58 Ala. 390. Connecticut. — The State v. Rowley, 12 Conn. 101 ; The State v. Bradley, 48 Conn. 535. Illinois. — Johnson v. People, 22 111. 314; Smith v. People, 25 111. 17; Cole v. People, 84 111. 216, 220 ; Evans v. People, 90 111. 384. Indiana. — Landringham v. The State, 49 Ind. 186; The State v. McKinstry, 50 Ind. 465 ; Scudder v. The State, 62 Ind. 13. Iowa. — The State v. Jones, 13 Iowa, 269 ; The State !•. Potter, 28 Iowa, 554 ; The State v. Stevena, 30 Iowa, 391 ; The 144 State V. Harris, 38 Iowa, 242 ; The State V. Savoye, 48 Iowa, 562. Kentucky. — Commonwealth v. Black- burn, I Duv. 4. Maine. — The State v. Mayberry, 48 Maine, 218 ; The State v. Clary, 64 Maine, 369. Maryland. — The State v. Buchanan, 5 Har. & J. 317 ; Bloomer v. The State, 48 Md. 521. Massachusetts. — Commonwealth a. Ward, 1 Mass. 473 ; Commonwealth v. Judd, 2 Mass. 329 ; Commonwealth v. Tib- betts, 2 Mass. 536 ; Commonwealth v. Kingsbury, 5 Mass. 106; Commonweal; h I!. Davis, 9 Mass. 415 ; Commonwealth .-. Hunt, 4 Met. Ill ; Commonwealth v. Har- ley, 7 Met. 506 ; Commonwealth v. East- man, 1 Cush. 189 ; Commonwealth v. Kel- logg, 7 Cush. 473 ; Commonwealth v. Shedd, 7 Cush. 514; Commonwealth v. O'Brien, 12 Cush. 84 ; Commonwealth v. Prius, 9 Gray, 127; Commonwealth v. Wallace, 16 Gray, 221 ; Commonwealth v. Walker, 108 Mass. 309 ; Commonwealth v. Waterman, 122 Mass. 43 ; Commonwealth v. Barnes, 132 Mass. 242 ; Commonwealth v. Fuller, 132 Mass. 563. Michigan. — People v. Richards, 1 Mich. 216; People v. Clark, 10 Mich. 310; Peo- ple V. Arnold, 46 Mich. 268. Minnesota. — The State v. PuUe, 12 Minn. 164. Nebraska. — Gandy v. The State, 10 Neb. 243, 245. iV. Walsh, 5 Dil. 58 ; United States v. Cros- 296 ; Williams v. Commonwealth, 10 Ca- by, 1 Hughes, 448 ; United States v. sey. Pa. 178 ; Commonwealth v. Bartilson, Fehrenback, 2 Woods, 175 ; United States 4 Norris, Pa. 482 ; Wilson v. Common- v. Dennee, 3 Woods, 47, 48. wealth, 15 Norris, Pa. 56; Huntzinger v. i Not necessary. Ante, § 45, 46, 48. Commonwealth, 1 Out. Pa. 336 ; Com- 2 Unnecessary. Ante, § 43. monwealth v. McHale, 1 Out. Pa. 397 ; s Ante, § 282-284, and places there re- Commonwealth V. Delany, 1 Grant, Pa. ferred to. 224 ; Commonwealth v. Boyer, 2 Wheeler * Not necessary. Ante, § 64, 115, note. Crim. Cas. 140; Commonwealth f. Foering, ^ jf two different times or places have Brightly, 315; Commonwealth a. Eng- been specified, "then and there" will be lish, 11 Philad. 439; Commonwealth v. ill for the uncertainty as to which is meant. Goldsmith, 12 Philad. 632. Crim. Proced. I. § 414. South Carolina. — The State v. Shooter, « Not necessary. See above. 10 145 § 287 SPECIFIC OFFENCES. ^ [BOOK III. eracy, and agreement amongst themselves, had as aforesaid, did remove and unlade from on board the said ship divers goods insured as aforesaid, of great value, to wit, of the value of four hundred pounds, before the said ship had reached the port or place of destination aforesaid [to wit, at the parish aforesaid, in the county aforesaid '] : And [the jurors aforesaid upon their oath aforesaid do further present''], that, in further pursuance of and according to the said conspiracy, combination, confederacy, and agreement amongst themselves, had as aforesaid, the said A, B, and C, afterwards, to wit, on the twentieth day of September, in the year aforesaid, on the high seas [to wit, at the parish aforesaid, in the county aforesaid'], did cut, bore, aud make [and did cause and procure to be cut, bored, and made^] divers holes in the bottom and sides of the said ship [or vessiel'], with intent thereby to sink, cast away, and destroy the said ship, and the goods in and upon the said ship so laden as aforesaid, and with intent and design thus and thereby wilfully and maliciously to prejudice the said several persons who had so underwritten the said policy of insurance upon the said ship, and upon the goods so therein and thereupon laden as aforesaid : [to the great damage of the said X, Y, Z, and U, who had so underwritten the said policy as aforesaid^], and against the peace, &C.'' II. The Indictment for Particular Conspiracies. § 287. To Murder. — The forms for this in the books are more or less loaded with surplusage ; but, rejecting what is obviously such, we have, — 1 How lay Place of Overt Act. — To occurring elsewhere. But the better and lay thus, under the videlicet, the place of orderly course, to put the rule mildly, is to the overt act in the county of the indict- charge them according to the real fact, ment when in truth it was elsewhere, seems Crim. Proced. I. § 381. to be a sort of copying of an old practice ^ j^gt necessary. See above, in civil cases long since exploded. See, for ^ See the last note but one. explanations of it, Gould PI. t. 3, § 159- « There is no good reason for inserting 161 ; Steph. PI. 4th ed. 281 et seq. I can these words, though they are not legally recall no decisions directly to the question ; objectionable. Ante, § 139 and note, and but, if this false allegation were necessary, the places there referred to. we should certainly have them in abun- ^ The word " ship " alone has been in the dance. The question, in legal reason, is other places used, and it better be here. If plain. To give the court jurisdiction, the "vessel" were not in this place a synonym locality of the conspiracy must be averred, for "ship," the disjunctive "or" would and it roust be the county of the indict- make the allegation bad. Crim. Proced. ment. But as in matter of law overt acts I. § 585, 590. in other counties or abroad are relevant, <> Unnecessary. Ante, § 48. and proper to be intioduced, the indictment ' Archb. Crim. PI. & Ev. 10th ed. 677, cannot be ill which sets them down as 678. Compare with post, § 290, 291 ; 6 transpiring where the proof will show that Went. PI. 387 ; Commonwealth v. Barnes, they did transpire. Quite liitely, if they 132 Mass. 242 ; Commonwealth v. Prius, are laid in the county of the trial, the 9 Gray, 127 ; Commonwealth v. Kellogg, court, in the absence of surprise to the de- 7 Gush. 473 ; Reg. v. Kohn, 4 Fost. & F. fendant, will permit them to be proved as 68. 146 CHAP. XXIII.J CONSPIRACT. § 288 That A, &c. and B, &c. on, &c. at, &c. unlawfully, wickedly, and ma- liciously did conspire, confederate, and agree together feloniously, wilfully, and of their malice aforethought to kill and murder one X [or, a certain infant female child of tender age, to wit, of the age of two days, the name whereof is to the jurors unknown, or not named]; against the peace, &c.^ § 288. To commit Burglary — (■With Overt Acts). — Still re- jecting from the old forms what is certainly surplusage, we have, — That A, &c. B, &c. and C, &c. on, &c. at, &c. unlawfully and wickedly did conspire, combine, confederate, and agree together [and with divers other persons whose names are to the jurors unknown^], unlawfully [to attempt and endeavor'] to feloniously and burglariously break and enter [in the night-time*] the dwelling-house of X [there situate^], with in- tent the goods and chattels therein feloniously and burglariously to steal, take, and carry away [if the pleader chooses, he proceeds to allege overt acts, thus] ; and, in pursuance of said conspiracy, combination, confedera- tion, and agreement, afterward, on the day and year aforesaid, about the hour of eight in the night-time of the same day, at, &c. aforesaid, the said dwelling-house of the said X unlawfully did attempt feloniously and bur- glariously to break and enter, with intent the goods and chattels there- in feloniously and burglariously to steal, take, and carry away, by then and there endeavoring to break and force open the outer door of the said dwelling-house with an iron crow, and also by then and there endeavoring to open the outer door of the said dwelling-house with a pick-lock key ; against the peace, &c.^ 1 Rex V. Glennan, 26 Howell St. Tr. 2 gee ante, § 285, note. 437 ; Rex v. Dunn, 26 Howell St. Tr. 839 ; " These words are in the form in Chitty. Reg. V. Banks, 12 Cox C. C. 393, 5 Eng. The conspiring is itself an "attempt and Rep. 471 ; The State v. Tom, 2 Dev. 569. endeavor;" so that, at least, the indictment To Murder one yet Unborn. — One of will be neater without them, the counts in Reg. v. Banks, which was * These words are not in Chitty. I treated as good, charged, rejecting surplus- cannot see how, without them, the indict- age, omitting allegations of overt acts not ment charges anything more than a con- considered at the trial, and adding the spiring to commit larceny, averments of place required by the com- ^ I deem these words not only needless, mon law, — bnt better omitted. Ante, § 253. « 3 Chit. Crim. Law, 1190. For an- That on, &c. at, &c. A, &c. was delivered other form see Brown v. The State, 2 Texas of a female child, there and then and still Ap. 115. Other Felonies. — For conspir- alive, the name whereof is to the jurors un- j^g {g commit other felonies, larceny, rob- known, and that, before the said child was ^^^y^ ^^^ ^^pe. The State v. McKinstry, born, and while the said A carried and was gg j„^ ^gg. Landringham v. The State, quick with the said child, on, &c. at, &c. she ^g j^^ jg g^^^^^^ ^ .j,^^ g ^^ the said A, and B, &c. did unlawfully and t j .o rnv o. . -m, i. ,. ai •tcc wickedly conspire, confederate, and agree I^-^' '^ J The State .. Murphy, 6 Ala. 765. together the said child, if born alive, felo- Adultery. - For a conspiracy to com- niously, wilfully, and of their malice afore- mit adultery. Miles v. The State, 58 Ala. thought to kill and murder ; against the 390. peace, &c. 14T § 290 SPECIFIC OFFENCES. [BOOK III. § 289. To cheat by False Token — (Dice). — An awkwaidly- constructed form in Chitty may be so modified as to charge, reasonably well, — That A, &c. B, &c. and C, &c. on, &c. at, &c. falsely, unlawfully, and wickedly did conspire, combine, confederate, and agree together to cheat and defraud, by such unlawful means as they should thereafter deem avail- able, and likewise by the means of false dice to be employed at play and in gaming, divers people whose names are to the jurors unknown, and also those persons who are hereinafter mentioned as having been cheated and defrauded, of large sums of money ; and, in pursuance of the same con- spiracy, combination, confederacy, and agreeing together, then and there in a certain room parcel of the dwelling-house of one M there, did fraudulently, unlawfully, and deceitfully produce and deliver to divers people then and there assembled to play at dice, thirty false, deceitful, and loaded dice, knowing them to be such, to be then and there used in play, and the same were then and there used and played with by divers people so assembled for the purpose aforesaid ; by means whereof, divers people then and there so playing with the said dice as aforesaid, not knowing the same to be false, deceitful, and loaded dice, did then and there lose large sums of money, and in particular one X did then and there so lose twenty dollars, one Y did then and there so lose fifteen dollars, and one Z did then and there so lose fifty dollars, by playing respectively with certain other persons to the jurors unknown, with the said false, deceitful, and loaded dice, and were then and there and thereby severally cheated and defrauded of said respective sums of money ; against the peace, &c.^ § 290. By Statutory False Pretences. — The pleader should have regard to the terms of the statutes against cheating by false pretences, and to the special facts of his case. While he will set out overt acts if the law of his State makes them essential ele- ments in the offence,^ or if otherwise he deems their introduc- tion into the indictment practically wise,^ the allegations for the conspiracy itself, alone adequate under the common-law rules, may be, — That A, &c. and B, &c- on, &c. at, &c. maliciously and unjustly devising to cheat and defraud one X, did then and there falsely and fraudulently conspire, combine, confederate, and agree together to get and obtain, know- ingly and designedly, by means of false pretences * [or, by some opinions 1 3 Chit. Crim. Law, 1160. And see E. 220. To defraud a bank by Overdraw- for a form for cheatinp; by one of the con- ing and False Entries, Commonwealth spirators appearing to have little skill in v. Foering, Brightly, 315. gaming, and thereby inducing a looker-on ^ Ante, § 282. to play with him, Reg. v. Bailey, 4 Cox » lb. ; Crim. Proced. II. § 205, 206. C. C. 390. Conspiring to cheat by false * In some of the precedents, the words tokens, Collins v. Commonwealth, 3 S. & " against the form of the statute in that 148 CHAP. XXIII.] CONSPIRACT. § 291 this not being enough, by means of, &c. setting out briefly the particular false pretences agreed to be employed^], one horse, of the value ^ of six hundred dollars, the property of him the said X,' with the intent then and there to cheat and defraud the said X thereof [or, in any other like general way, it not being necessary to descend to the particularity required in the indictment for the actual statutory cheat, state any other facts which would constitute an indictable fraud under the statute] ; against the peace, &c.* §291. Other Conspiracy to cheat. — All cheating beinc "un- lawful," — that is, contrary to the law as administered in the civil department, or in the criminal, or in both, — persons who mutually undertake to employ their combined powers to cheat another, while yet they have not considered of the means, com- mit thereby an indictable conspiracj'. Such is, at least, the Eng- lish and better American doctrine.^ Hence, since in the nature of things an indictment cannot allege contemplated means where none have been contemplated, and every indictment is good which fully sets out an offence whether in few words or in many,® it is adequate to allege, where no more of fact exists or is to be proved, — That A, &c. and 15, &c. on, &c. at, &c. did unlawfully and maliciously conspire, combine, confederate, and agree together to cheat and defraud one X of his goods and chattels [or, &c. specifying in any other appropriate case made and provided " are added here. 66 ; Commonwealth v. Ward, 1 Mass. 473; From most they are omitted, and I see no Commonwealth v. Kingsbury, 5 Mass. 106; reason to suppose they are deemed essen- Reg. v. Barry, 4 Fost. & F. 3S9 ; People v. tial. Arnold, 46 Mich. 268 ; Respublica v. Ross, 1 As, see Commonwealth u. Wallace, 2 Ycates, 1 ; Commonwealth u. Delany, 1 16 Gray, 221 ; Commonwealth y. Walker, Grant, Pa. 224; Williams v. Commou- 108 Mass. 309; Commonwealth v. Fuller, wealth, 10 Casey, Pa. 178; 3 Chit. Crim. 132 Mass. .'563. Law, 1180, 1186; 4 Went. PI. 80, 89; 6 2 Generally, in our States, the value lb. 378 ; 4 Cox C. C. App. 13, 35 ; 6 lb. does not affect, as of law, the punishment App. 64, 65, 157. to be inflicted for the conspiracy ; and, ^ Ante, § 283 and the places there re- where it does not, it need not be alleged, ferred to. " When parties have once agreed See ante, § 174, note, and the places there to cheat a particular person of his moneys, referred to. although they may not then have fixed on * For the rule for describing the things any means for that purpose, the offence of and their ownership, see Crim. Proced. II. conspiracy is complete." Bayley, J. in § 210, 211. Reg. V. Gill, 2 B. & Aid. 204, 205. " The * Johnson v. People, 22 111. 314; The offence does not consist in doing the acts State V. Crowley, 41 Wis. 271 ; People v. by which the mischief is effected, for they Clark, 10 Mich. 310 ; Latham v. Reg. 5 may be perfectly indifferent, but in con- B. & S. 635, 9 Cox C. C. 516 ; Reg. t). spiring with a view to effect the intended Kenrick, 5 Q. B. 49 ; Reg. v. Parker, 3 mischief by any means." Lord Mansfield Q. B. 292 ; Rex u. Gill, 2 B. & Aid. 204. in Kex v. Eccles, 1 Leach, 4th ed. 274, For other forms see Reg. v. Whitehouse, 6 276. Cox C. C. 38 ; People v. Barrett, 1 Johns. ^ Ante, § 284. 149 §293 SPECIFIC OFFENCES. [book in. terms the object of the cheat according to the special facts. In those States in which the means are required to be set out, add, by, &c. proceed- ing to specify the means contemplated by the conspirators-']; against the peace, &c.^ § 292. To Assault — Ravish. — The object of this sort of con- spiracy being by all opinions unlawful, the indictment may simply aver, — That A, &c. and B, &c. on, &c. at, &c. did unlawfully and maliciously conspire, combine, confederate, and agree together to assault, beat, bruise, and wound one X^ [or, to ravish and carnally know one Y, violently and against her will'*], [adding overt acts,^ or not, as the pleader deems best]; against the peace, &c. § 293. Setting out Contemplated Means — (^Something of the Law). — But when we attempt to pass forward to other cases, we are confronted by the perturbations which some of our Amer- ican courts have created in the law of the offence and of the indictment, through the rulings already mentioned on the single 1 Ante, § 285. In this view, see the fol- lowing cases and the forms therein : The State V. Parker, 43 N. H. 83 ; The State v. Straw, 42 N. H. 39.3 ; Commonwealth v. Fuller, 132 Mass. 563; Commonwealth v. Prius, 9 Gray, 127 ; Commonwealth v. Shedd, 7 Cush. 514; Commonwealth v. Eastman, 1 Cush. 189; Commonwealth u. Davis, 9 Mass. 415 ; Tlie State v. Jones, 13 Iowa, 269; The State o. May berry, 48 Maine, 218. It is believed that the courts which require this allegation are not agreed as to what it must contain. The pleader should bo cautious on this point; for his duty requires him to produce averments, which, while the proofs support them as to the facts, will in law be upheld by the tribunals of his own State. And see ante, § 280-284. ^ For forms, see, besides the above cases, ante, § 286 ; Reg. v. Gorapertz, 9 Q. B. 824, 2'Cox C C. 145; Sydsorff v. Reg. 11 Q. B. 245; Reg. v. Kiiig, 7 Q. B. 782; Reg. II. Warlmrton, Lnw Rep. 1 C. 0. 274 ; Reg. V. Peck, 9 A. & E. 686; Rex v. Woolf, 1 Chit. 401 ; Reg. i'. Hudson, Bell, 263, 8 Cox O. C. 305; Reg v. Carlisle, Bears. 337, 6 Cox C. C. 366 ; Reg. v. Bul- lock, Dears. 653 ; Reg. v. Steel, 2 Moody, 246, Car. & M. 337 ; Reg. 0. Hall, 1 Fost. & F. 33 ; Reg. v. Esdaile, 1 Fost. & F. 213, 150 8 Cox C. C. 69; Reg. v. Lewis, 11 Cox C. C. 404 ; Rex u. Richardson, 1 Moody & R. 402; Reg. v. Brown, 7 Cox C. C. 442; Reg. f. Gurney, 11 Cox C. C. 414; Rex V. Roberts, 1 Camp. 399 ; Rex v. Fowle, 4 Car. & P. 592 ; Heymann v. Reg. Law Rep. 8 Q. B. 102 ; Reg. v. Whitehouse, 6 CoxC. C. 129; 3 Chit. Crim. Law, 1184; 4 Cox C. C. App. 38; 6 lb. App. 63, 64, 81 ; 8 lb. App. 14; People v. Richards, 1 Mich. 216; The State v. Younger, 1 Dev. 357; Lambert <-. People, 7 Cow. 166, 9 Cow. 578 ; Johnson v. People, 22 111. 314 ; Evans v. People, 90 111. 384 ; The State v. Young, 8 Vroom, 184,185; The State w. Rowley, 12 Conn. 101 ; Commonwealth v. Baitilson, 4 Norris, Pa. 482 ; The State v. Buchanan, 5 Hnr. & J. 317; Bloomer v. The State, 48 Md. 521. 8 For other forms, see Commonwealth V. Putnam, 5 Casey, Pa. 296 ; Rex v. Gost- wick, Trcm. P. C. 187. '' For form sec The State v. Murphy, 6 Ala. 765. It is not necessary to say which of the defendants was to perform the part of principal of the first degree, or whether both were; because, in cither case, if they carried out what they meant, they would be jointly guilty of the rape. 5 Ante, § 285, 286. CHAP. XXIII.] CONSPIRACY. § 294 question of the conspiracy to cheat individuals.^ If the courts in the States affected by this suggestion intend really to hold, that no conspiracies can be punished by the criminal law except those wherein either the end or the means contemplated is " un- lawful" in the sense of being indictable when accomplished with- out conspiracy, a large part of the law of conspiiacy as it existed in England when we derived thence our common law is wiped out in those States, and we have no need of forms for use there for what does not there exist. But, beyond doubt, the English law of conspiracy does prevail in most of our States, and the fol- lowing forms are meant for use only where it does. § 294. To debauch a Female. — In some of our States fornica- tion is by statute indictable, and so in some others is the defile- ment of a girl through seduction.^ Iii these States, therefore, a conspiracy to commit either stands on the same ground as to both the offence and the indictment with one to commit a bursr- lary, a rape, an assault, or any other crime.^ But in other States these derelictions are not crimes. Yet in all seduction is a civil wrong, which the law will redress whenever there is a plaintiff — such, for example, as a master injured by the loss of services of the woman who was his servant,* or a husband by the alienation of a seduced wife^ — to bring the action rectus in curia. The woman herself cannot sue because she was a partaker in the wrong,^ nor can the master^ or the husband^ if he was partaker. The State, that is the plaintiff in criminal prosecutions, is always rectus in curia, for it can do no wrong.^ The result of all which is, that, even aside from considerations of public morals, which still should be taken into the account,-"' adultery and fornication are "unlawful," in the sense of being contrary to the law admin- istered in the civil courts, however the rule may be in the crim- 1 Ante, § 283, 286, 291, and places there Clouserw. Clapper, 59 Ind. 548; Bigaouette referred to. u. Paulet, 134 Mass. 123. 2 Stat. Crimes, § 625-652, 691. « Paul u.Frazier, 3 Mass. 71; Hamilton u. " Ante, § 287, 288, 292. Lomax, 26 Barb. 615 ; Jordan v. Hovey, 72 * Eeddie v. Scoolt, Peake, 240 ; Fores Misso. 574 ; Buckles v. Ellers, 72 Ind. 220. «. Wilson, Peake, 55; Davidson d. Goodall, ' Eichardson !•. Pouts, 11 Ind. 466. 18 N. H. 423 ; Bennett v. Allcott, 2 T. R. ^ Hodges v. Windham, Peiike, 39 ; Fry 166 ; Sattertliwaite u, Dewhurst, 4 Doug. v. Derstler, 2 Yeates, 278; Cook v. Wood, 315 ; Martin v. Payne, 9 Johns. 387 ; Bart- 30 Ga. 891 ; Bunnell r. Greathead, 49 Barb, ley V. Eichtmyer, 4 Comst. 38 ; Blagge v. 106 ; Sherwood v. Titman, 5 Smith, Pa. 77. Ilsley, 127 Mass. 191. " Crim. Proced. I. § 224 b. 5 Van Vacter v. McKillip, 7 Blackf. 578; i» Crim. Law. I. § 500-506 ; Rex u. De- laval, 3 Bur. 1434. 151 § 296 SPECIFIC OFFENCES. [BOOK III. inal ; so that on this ground alone a conspiracy to commit either is, even where no unlawful means have been agreed upon, indict- able.i The indictment, therefore, need not contain averments of " unlawful " means. The form may be simply, — That A, &c. and B, &c. on, &c. at, &c. unlawfully and maliciously did conspire, combine, confederate, and agree together [by false pretences, false representations, and other fraudulent means ^] to cause and procure one X, an unmarried woman [or, the wife of one Y, or an unmarried girl under the age of twenty-one years, or an unmarried girl of the tender age of fourteen years] to have carnal intercourse with the said A [or with Z, or with a man whose name is to the jurors unknown other than the said Y, or to become a common prostitute] ; against the peace, &c.' §295. Against Marriage. — Marriage is " lawful." But to vio- late the laws regulating it, or the legal rights of parents and guardians to forbid indiscreet marriages by persons of immature age or weakened intellect, or the rights of the marrying or mar- ried parties themselves, is " unlawful." The indictment for a con- spiracy against marriage, therefore, must aver unlawful means,* yet not necessarily means which would be indictable if carried into execution without conspiring. Thus, — § 296. To procure Elopement and Marriage. — The allegations may be, — That on, &c. at &c. X was an unmarried minor girl of the tender age of fifteen years ^ and Y was her father, and she was then living and abiding under his care, protection, and guardianship, and rendering him her ser- vices, in his dwelling-house there [he having then and there the right to control her person and restrain her from entering into any marriage which he might deem to be contrary to her interests^]; that A, &e. [one of the 1 Ante, § 283; Stat. Crimes, § 625; C. C. App. 8; 6 lb. App. 79. For a con- Crim. Law, II. § 235 ; Smith w. People, 25 spiracy to seduce a woman by means of a Bl. 17, 23. sham marriage, see The State ■/. Savoye, 2 These words are in the form in Reg. 48 Iowa, 562. V. Mears and Smith v. People, infra, which * And see Rex v. Fowler, 1 East P. C. was adjudged good. But they are plainly 461. mere surplusage. For, if they are meant * A mistake of her age would not be to charge contemplated unlawful means, fatal if the proof showed any other age and if such an allegation is necessary, they from which would result the same len-al lire not sufficiently definite. This appears consequences. Crim. Proced. I. § 488 6- in ante, § 290. 488 e. 3 Reg. o. Mears, 2 Den. C. C. 79, 4 <* Some pleaders will choose to insert a Cox C. C. 423 ; Smith v. People, 25 HI. clause like this ; though, as the father's 17; Rex y. Delaval, supra; Rex v. Grey, rights are of law, which need not be averred, 9 Howell St. Tr. 127, Trem. P.O. 215; it is not necessary. Reg. V. Howell, 4 Fost. & F. 160; 5 Cox 152 CHAP. XXIU.J CONSPIEACT. § 297 defendants], was then and there desirous of marrying the said X, and the said Y [deeming the said proposed marriage prejudicial to her^] then and there forbade the same and all intercourse between her and the said A. Whereupon the said A, B, &c. and C, &c. well knowing the premises, did afterward, then and there, unlawfully and maliciously conspire, combine, confederate, and agree together to seduce and assist the said X clandestinely and against the will and without the knowledge of the said Y, her father, to leave and abandon his said dwelling-house, protection, control, and service, and live and abide with the said A, and against the said Y's will and with- out his knowledge marry the said A [to which, in most cases, the pleader will elect to add overt acts, though in matter of law they are unnecessary except in a few of our States] ; against the peace, &c.^ § 297. To cause a Marriage falsely to appear of Record. — A public record imports verity, and it is of high interest to parties and the community. To cause, therefore, any such record to be entered up falsely is " unlawful," and especially is it when the record is made to declare falsely a marriage. Therefore an indictment for a conspiracy to commit this wrong need not set forth contemplated means. It may simply aver, — That A, &c. B, &c. and C, &c. on, &c. at, &c. did unlawfully and maliciously conspire, combine, confederate, and agree together to cause it falsely to appear of record, &c. [specifying some record wherein matter of this sort is by law to be perpetuated], that on, &c. at, &c. one X and one 1 This clause is, like the other, not of an indictment for a conspiracy to entice a necessary, yet such as some may choose to young man, who was a minor, into marry- insert. ing a prostitute, without the knowledge or 2 I have drawn this form without much consent of his mother, his father being dead, reference to precedents ; for the books con- In Respublica u. Hevice, 3 Wheeler Crim. tain none which seem to me quite suited to Cas.,505, 3 Yeates, 114, is the form of an practical use. The supposed facts are sim- indictment for a conspiracy to entice away ilar to those in Commonwealth t*. Mifflin, a young girl under guardianship and pro- 5 Watts & S. 461, wherein the question cure her marriage when drunk. The in- was whether or not the transaction was in- dictment in the famous Wakefield's Case, dictable, and the court adjudged it to be. 2 Lewin, 1, 7, where it appears at large. The indictment, in two counts, is preserved was for a conspiracy to bring about a mar- in Whart. Free. Nos. 651, 652. The facts riage by abducting the girl through false as averred in the second count are the ones representations, under constraint of which discussed by the court. In Rex o. Thorp, she gave her consent. A form in Rex u. 5 Mod. 218, 221, is the form of an informa- Cobb, 4 Went. PI. 79, is for a conspiracy, tion for a conspiracy to alienate a minor among other things, " to induce the mother son, away at school, from his father, and and other relations " of a minor girl " to entice liim into marrying a girl (of inferior consent to her marrying" one of the con- rank and fortune, if this is material) with- spirators, by giving ou*- and publishing out his consent. The information seems that he "had lain with taer," and "had to have been deemed good, but the case did carnal knowledge " of hii bi/dy, "and had not proceed to judgment. In Rex u. Ser- gotten her with eiili.'- jeant, Ryan & Moody N. P. 352, is the form 153 § 299 SPECIFIC OFFENCES. [BOOK HI. Y were, by M, a minister of the gospel [or justice of the peace], duly- united in marriage [or, a less minute setting out of the record will doubtless suffice, especially where in fact it has not been made], whereas in truth neither the aforesaid nor any other marriage between the said X and the said Y ever transpired, and this the said A, B, cfe C at the said time and place of their said conspiring well knew [adding averments of overt acts or not as the pleader may elect] ; against the peace, &c.^ § 298. To entice away Wife. — There is in Tremaine an infor- mation for a conspiracy to entice from a man his wife, not con- taining the ordinary element of a purpose for her to live in adultery. This if done by one would be " unlawful," though not indictable. Hence the indictment for the conspiracy need not aver contemplated means. Reducing to modern shape the form, supplying imperfections, and rejecting redundancies, we have, — That on, &c. at, &c. X and Y his wife were persons married to each other and cohabiting in concord and mutual love ; whereupon A, &c. B, &c. and C, &c. did then and there unlawfully and maliciously conspire, combine, confederate, and agree together, by falsehood, enticement, and other wrong- ful means and devices, to persuade and cause the said Y to hate without cause the said X, and without cause to withdraw herself from cohabitation with him, and without his consent and without cause to live in separation from him in parts and places to him unknown [and, if the conspiracy was successful, it is well to set out her desertion as an overt act] ; against the peace, Sac' § 299. To procure Divorce. — It is lawful for a married person to procure a divorce, by honest means, without producing testi- mony which he knows to be false, or imposing on the court. But to do it otherwise is " unlawful," as a fraud on the law and on the tribunal, a disturbance of the public order, and a wrong to the divorced party, whether the thing done is indictable per- formed without conspiracy, or not.^ Hence a conspiracy to obtain 1 I have before me no precedent for this of the marriage relation, and the protection offence except the needlessly long and com- of the important rights arising therefrom ; plicated indictment in Commonwealth v. and, (/ this were the only charge made, the Waterman, 122 Mass. 43. The court was prosecution might well be maintained." plainly right in sustaining it, and equally p. 57, 58. so in the following observation, by Colt, ^ Rex u. Dingley, Trem. P. C. 213. I J. : "It is charged that the main purpose have omitted to say, as in the form before of the defendants in this case was to cause me, that the wife had a separate estate, a marriage between certain parties falsely which the conspirators meant to and did to appear of record. This, if successful, " make a prey of." would directly tend to impair the value of » And see further for the principle, a public record, necessary for the security Grim. Law, II. § 216, 217, 219-221 154 CHAP. XXin.] CONSPIRACY. § 300 a divorce by such unlawful means is indictable because of their unlawfulness, and the indictment must set them out. Thus, — That A, &c. B, &c. and C, &c. on, &c. at, &c. the said A being then and there the husband of X his wife, did unlawfully and maliciously conspire, combine, confederate, and agree together to procure, and enable and cause the said A to obtain, in form and in fraud of law, a judicial divorce dis- solving his marriage with the said X his wife, by the following false, unlawful, and pernicious means ; to wit [here setting out the means con- templated] ; against the peace, &c.-^ § 300. Falsely to charge -with Crime — ^Less than Crime, &c.). — On various grounds it is " unlawful " to charge one falsely with crime, but chiefly because it is both a wrong to the accused per- son and a disturbance of public justice. Therefore a conspiracy to do this is indictable by reason of the unlawful end, and it is immaterial whether indictable means are contemplated or not.^ So the indictment for the conspiracy need not contain any setting out of means. It may aver, — That A, &c. B, &c. and C, &c. on, &c. at, &c. did unlawfully and mali- ciously conspire, combine, confederate, and agree together falsely to charge and accuse one X with having then lately before feloniously ravished and carnally known the said A violently and against her will [or, feloniously and of his malice aforethought killed and murdered one M ; or, &c. setting out, ifi the like brief way, such other contemplated accusation of an offence as the proofs will disclose. This is enough. But if the purpose was to extort money, or other thing, in a compounding of the offence or otherwise, or if there was any other specially evil purpose, the pleader may choose to aver it;° and, in some cases, where less than a crime was agreed to be charged, this may be necessary] ; against the peace, &c.* 1 I have before me but two precedents Did conspire, combine, confederate, and for this sort of indictment, neither of which agree together to extort money from the said is adapted to the present use. Cole v. X, by falsely and without any reasonable People, 84 III. 216, is on a statute ; and and probable cause accusing the said X the indictment in The State ..Stevens, 30 »f h''^'"S defrauded Her Majesty s Inland Iowa, 391, was held ill on the ground, ex- plained in the preceding parts of this chap- The form is not greatly dissimilar in ter, and accepted in not many of our States, Rex v. HoUingberry, 2 Ben. & H. Lead, that a cons])iracy to be indictable must be Cas. 2d ed. 34, 6 D. & R. 345. to do something which would be a crime if « Crim. Proced. II. § 240 ; Archb. Crim. performed without conspiracy ; Common- PI. & Et. 10th Lond. ed. 672, 673 ; 3 Chit, wealtli V. Nichols, 134 Mass. 531, is partly Crim. Law, 1171, 1174; Rex v. Freeman, of this sort. Trem. P. C. 85; Rex v. Spragg, 2 Bur. 2 Crim. Law, IL §217,220. 993; The State o. Hickling, 12 Vroom, 3 The averment may be inserted in this 208 ; Commonwealth u. Tibbetts, 2 Mass. place, but it is not always. In one case 536. More specifically, some of the forms before me (Reg. v. Yates, 6 Cox C. C. 441) are, to accuse of larceny, The State v. Ca- the pleader says, — wood, 2 Stew. 360 ; Rex v. Rispal, 3 Bur. 155 § 302 SPECIFIC OFFENCES. [BOOK HI. § 301. To injure one in his Business. — The law protects every perbon in his lawful business ; and to injure one therein is, either in itself or as viewed in connection with particular means, " un- lawful." It is "unlawful" simply to prevent a man from carry- ing on his business, — as, for example, from working at his trade, — so that an indictment for a conspiracy therefor is good without any setting out of means.^ But competition is permissible, it is beneficial to the public and not opposed to any policy of the law, while yet its consequences may be injurious to persons in the same employment. And the like is true of various other things which men properly do in the pursuit of their own interest. Therefore it may be lawful, or it may be unlawful, for one person to injure another in his business, the question depending on the means employed ; while, whatever the means, it is alwaj-s unlaw- ful to prevent a carrying on of the business. The distinction, therefore, appears to be, that, while the indictment for a con- spiracy to prevent one's carrying on his business need make no mention of means, that for a conspiracy to injure one therein must set out contemplated means, and they must be "unlaw- ful," — a distinction, however, the application of which will not unfrequently require nice discrimination. Bearing it in mind, — § 302. To injure Actor by Hissing. — The hissing of an actor is lawful or unlawful according as it expresses feelings which spontaneously arise, or is resorted to for injuring him in his call- ing. A conspiracy to do it for the latter purpose is, therefore, indictable; 2 and the allegations should set out such a com- 1320; Jones v. Commonwealth, 31 Grat. monwealth k. O'Brien, 12 Cush. 84; Oom- 836. To pervert legal process for the pur- monwealth v. Nichols, 134 Mass. 531. pose of extorting a deed from one. The With poisoning horses, 4 Went PI. 98. State u. Shooter, 8 Rich. 72. To lay an With forging a will to defraud heirs. Rex information ag.ninst one for illegal insur- K.Thompson, 4 Went. PI 96. With being ance in the lottery and then to obtain the father of a child horn of another man "s money from him to compromise it. 3 Chit, wife, Rex d. Turner, Trem. P. C. 82. Wilh Crim Law, 1176. To charge a man with being the father of a bastard, 3 Chit. Crira. having stolen goods from one of the con- Law, 1179 ; Reg. v. Best, 6 Mod. 137, 185, spirators, and thereby obtaining a promis- 2 Ld. Raym. 1167 ; Johnson t. The State, sory note, &c., 3 Chit. Crim. Law, 1175. 2 Dutcher, 313; and see Crim. Proced. II. To accuse one of having committed an un- § 241. natural crime, &c., and thereby obtaining i Crim. Proced. II. § 242 ; Rex v. Eo- money to conceal it, 3 Chit. Crim. Law, cles, 3 Doug. 337, 1 Leach, 4th ed. 274 1184. To charge with rape with intent to (where may be seen a form), extort money, 3 Chit. Crim. Law, 1182; 2 Crim. Law, II. § 216, 308 and note, with adultcrv, for the same purpose, Com- 156 CHAP. XXm.] CONSPIRACY. § 303 bination of means and end as will make the criminality of the transaction appear. For example, — That on, &c. at, &c. X was a person who followed the profession and calling of actor and player at theatres and other places where people assemble for amusement and instruction, by which profession and calling he obtained large gains ; and that then and there, at a certain theatre com- monly termed the M theatre, a play known as the Merchant of Venice was appointed and to the public announced to be acted and played, wherein the said X was to perform the part of Shylock. Wliereupon A, &c. B, &c. C, &c. and D, &c. did then and there, knowing the premises, unlaw- fully and maliciously conspire, combine, confederate, and agree together to injure and ruin the said X in his said profession and calling, and deprive him of iiis good name therein and of all future gains therefrom, by hissing and otherwise expressing disapprobation of his performance, and by causing and procuring others to join therein, when he should so appear in said play, without reference to what might be their own real and spontaneous judgment of his said performance, and by thereafter, at all times and places when and where the said X should appear performing any part in his said profession and calling, doing the same in respect of his performance therein, without reference to what should be their own spontaneous opinions, so as by all means to bring about the ruin of the said X in his said profession and calling ; against the peace, &c.^ § 303. To seduce a-way Workmen — (Under Contract — Not). — To seduce a workman or any other servant under contract to leave his employer, or probably to seduce any other person to violate a contract, is, if the person seducing knows of the con- tract, and the one seduced yields and thereby injures the other party, such an " unlawful " act that a civil action for the injury is maintainable.^ And, where there is no contract, if the seduc- tion of workmen or other servants is malicious and meant to injure the employer, it is in like manner actionable ; ^ though, in 1 The only precedent before me is that ley v. Gye, 2 Ellis & B. 216 ; Lee v. West, in 6 Went. 443, for the nearly identical 47 Ga. 311 ; Salter v. Howard, 43 Ga. offence of a conspiracy to ruin an actor by 601 ; Haskins o. Royster, 70 N. C. 601 ; making a great noise at the performance Miburne o. Byrne, 1 Cranch C. C. 239 ; and compelling the manager to discharge Haight o. Badgeley, 15 Barb. 499; Scid- him from an engagement. It is too long more v. Smith, 13 Johns. 322 ; Campbell and verbose, and not precise enough in its v. Cooper, 34 N. H. 49 ; Hart v. Aldridge, forms of allegation, for insertion here. For Cowp. 54 ; Keane v. Boycott, 2 H. Bl. 51 1 ; a form for a conspiracy to seduce people Blake v. Lanyon, 6 T. R. 221 ; Morgan v. to withdraw their custom from a common Smith, 77 N. C. 37. brewer, see Rex v. Morgan, 4 Went. PI. ' Walker a. Cronin, 107 Mass. 555, 106-111. To ruin gun-makers in their where the sereral distinctions are explained, trade, 6 Went. PI. 439. And see Evans c/. Walton, Law Rep. 2 2 Bixby u. Dunlap, 56 N. H. 456 ; Lum- C. P. 615; Carew v. Rutherford, 106 157 § 304 SPECIFIC OFFENCES. [BOOK III. the interest of competition in business, one man is at liberty to hire away the employees of another, to take effect when their contracts have expired, or so otherwise as not to violate any- valid agreement.! Therefore a conspiracy to seduce from their emplo^^ers workmen under contract, in breach of the contract, is of itself criminal, and no allegation of unlawful contemplated means is required in the indictment. It may aver, — That on, &c. at, &c. M was a servant and workman in the employ of and rendering service and labor to X, under a contract theretofore on a valuable consideration made between them, not expired, of full force, and service and labor thereunder remaining due to the said X from the said M,^ from which the said X would derive large benefits and gains ; where- upon A, &c. and B, &c. did, then and there, knowing the premises, and devising to prejudice and injure the said X, unlawfully and maliciously conspire, combine, confederate, and agree together to seduce and entice away the said M from the said X and his said employment and service in breach of the contract aforesaid [probably, in most cases, the pleader will elect to add overt acts] ; against the peace, &c.' § 304. To seduce away 'Workmen where no Contract. — Follow- ing up the views already presented,* if the object of the con- spiracy is to prevent the employer from doing business, it may be charged in the simple manner already pointed out;^ and the seducing away of workmen who are not under contract, as well as of those who are, may be made to perform the part only of overt Mass. 1, and other cases cited to this danger whereof constitutes the objection to section. following the forms in assumpsit. In Reg. 1 lb. ; Sykes v. Dixon, 9 A. & E. 693 ; v. Duffield, 5 Cox C. C. 404, 408, the part Boston Glass. Manuf v. Binney, 4 Pick, of a count corresponding to the form thus 425 ; Bird v. Randall, 3 Bur. 1345 ; Nichol far in our text, and on which there was a V. Martyn, 2 Esp. 732 ; Langham u. The conviction, is, — State 55 Ala. 114. That on, &c. X "carried on trade and In an action on the contract, this business as a manufacturer of japanned and would not be a sufficient allegation of it. tin wares at, &c. and that divers, to wit, But even less would suffice in an action by fifty, persons, being artificers, had contracted the master for seducing the servant from with the said X to serve him as workmen and him, 2 Chit. PI. 645 and note ; Hamble- artificers in his said trade and business for ton I'. Veere, 2,Saund. 169; Walker v. certain times and periods respectively agreed Cornin, 107 Mass. 555; the gist of the "Pon between them and the said X, and that action being the wrong and not the con- "'^ ="''' persons so being such artificers as tract. The like distinction prevails in crim- "foresaid have entered into the service of the inal pleading. Crim. Proced. I. § 554-558. '^"^ ^ "' ™* manufacturer as aforesaid." I think this form of the allegation ade- 8 Compare with the forms in Reg. v. quate. If the pleader, for caution, elects Duffield, supra, to set out the contract more fully, let him * Ante, § 301, 303. he equally careful to avoid a variance be- 6 Ante, § 301 and the places there re- tween the averment and proof of it, the ferred to. 158 CHAP. XXIII.] CONSPIRACY. § 305 acts. Or, whether the purpose is such, or merely to injure in a less degree the employer in his business, the allegations may be, — That on, &c. at, &c. X was a manufacturer of tin ware, employing in his said business workmen to the number of one hundred and more, and deriving therefrom large gains ; whereupon A, &c. B, &c. C, &c. D, &c. and sundry other persons whose names are to the jurors unknown, did, then and there, having no guardianship over said workmen, and not de- vising to promote in any lawful way any interests of their own, but of malice toward the said X, and planning, purposing, and intending to injure him in his said business, and to ruin him therein, and to prevent his there- after carrying it on, unlawfully and maliciously conspire, combine, confed- erate, and agree together to persuade, entice, induce, and cause each and every one of the workmen so employed by the said X to leave him and his said employment at such time and times as would most injure and prejudice him therein ; and in like manner and to the like end seduce and keep away from entering into his employment in said business all other workmen ; causing them and the before-mentioned workmen to idle away their time and waste their substance, to the detriment alike of themselves and of all other people of the State ;^ against the peace, (Sec." § 305. To compel Workman — Employer to discharge him. — To close against a workman every avenue to employment, unless he will do what the law does not require of him, is to prevent his working, — a conspiracy to do which is indictable without any allegation of contemplated means.^ Or the averments may be, if so are the facts, — That A, &c. B, &c. C, &c. D, &c. and other p.ersons to the number of one hundred and more whose names are to the jurors unknown, on, &c. at, &c. being members of an association not established by law called the M Association, and X being a journeyman tailor and not a member thereof, and the said association requiring of its members the payment of certain moneys and compliance with certain rules, did then and there unlawfully and maliciously conspire, combine, confederate, and agree together to com- pel all journeymen tailors and especially said X to become members of said 1 This extended averment of tlie con- higher wages than he had before offered, or spiracy will in no way interfere with alle- take into his service men whom he did not gations here ofovert acts, should the pleader want, or turn off workmen whom he de- clect to make them. sired to retain ; this circumstance would 2 Should the proof be, that the conspira- not create a variance. For a business man tors intended what is here alleged only on to transmute himself into a puppet, and be condition that X refused compliance with moved by the showman, is to abandon demands from persons having no authority business. And he who is compelled to do to make them ; as, for ex. Coonish, 8 Conn. 230; Neel v. The State, 4 Eng. 259. 375, 379; The State i: Matthews, 37 N. H. 1 The State v. Sheriff, 1 Mill, 145, 152; 450; Spilsbury v. Micklcthwaite, 1 Taunt. Ex parte Kiljfore, 3 Texas A p. 247 ; The 147; Watt u. Ligertwood, Law Eep. 2 State V. Blackwell, 10 S. C. 35 ; Geisse v. H. L. Sc. 361 ; Phillips r. Welch, 12 Nev. Beall, 5 Wis. 224 ; People a. Brower, 4 158 ; Rex v. Leech, 9 Howell St. Tr. 351. Paige, 405; In re Pollard, Law Kep. 2 P. C. ^ Middlebrook v. The State, 43 Conn. 106; Reg. !'. Castro, Law Rep. 9 Q.B. 219. 257; Watt o. Ligertwood, supra. See 2 2 Gude Crown Pract. 151 ; 4 Chit. Ci im. Proced. I. § 1 78 ; In re Pollard, Law Crim.Law,362. SeeRobbinsv Gorham,25 Rep. 2 P. C. 106. N. Y. 588 ; People v. Pearson, 3 Scam. 270. e 2 Hawk. P. C. c. 16, § 13 • Furlon"- v 168 CHAP. XXIV.J CONTEMPT OP COURT AND THE LIKE. § 322 § 321. For Refusing to Testify. — The following is an English form of commitment of a witness by a magistrate for refusing to testify. It should be adjusted to the practice of the particular State, — not done here, because the practice in the several States differs : — To the Keeper of New Prison at, &c. or his Deputy.^ Middlesex, to wit. Receive into your custody the body of A herewith sent you, brought before me M, one of her Majesty's justices of the peace in and for the said county, by X, upon whose information taken upon oath before me it appears that a certain felony hath been committed, touching which the said A can give material evidence, and the said A admitting on his examination that he knows the name and residence of the person suspected to have committed the said felony, but refusing to answer touching the same, or to disclose the name and residence of the said person, him the said A therefore safely keep in your said custody until he shall submit to be examined touching the said felony,^ and for so doing this shall be your sufficient warrant. Given under my hand and seal this, &c. M (l. s.).« II. The Indictment for disobeying Judicial Orders.'^ § 322. Practically Unimportant. — While this offence is proba- bly cognizable by the common law of our States in general, we have no reports of indictments for it, except an occasional statu- tory one.® In like manner, iu England, it appears to extend practically only to disobedience to orders of magistrates in ses- sions or otherwise ; though, in point of law, it would appear not to be so limited.® Hence, — Bray, 2 Saand. 182, 1 Mod. 272; Mayhew like forms see same page and page 38. I V. Locke, 7 Taunt. 63 ; Ex parte Manlsby, cannot safely say how much of this is sur- 13Md. 625; Ex parte Cohen, 6 Cal. 318. plusage. Evidently less particularity would And see People v. Pirfenbrink, 96 111. 68. be required in a commitment for a like See Wilson's Case, 7 Q. B. 984, 1000. offence by a superior court. And see Peo- 1 " In strictness it should be directed to pie v. Turner, 1 Cal. 188 : Ex parte McKee, aconstable,and to the jailer or keeperof the 18 Misso. 599 ; Burnham y. Morrissey, 14 prison, requiring the former to convey the Gray, 226 ; In re Morton, 10 Mich. 208; prisoner into the custody of the jailer, and Ex parte Eowe, 7 Cal. 175 ; De Witt v. the latter to receive and keep him ; but, in Dennis, 30 How. Pr. 131 ; Ex parte Sum- the police districts of London and Dublin mers, 5 Ire. 149. Eor a form of conviction metropolis respectively, it is usually directed of a witness before the grand jury for re- to the jailer only." 2 Gab. Grim. Law, 177. fusing to answer questions, see People v. 2 Chitty suggests the query whether it Kelly, 24 N. Y. 74. would not be better to add, "or shall be * Crim. Law, I. § 240. discharged by due course of law." ^ Ante, § 159 ; Crim. Law, I. § 240. 8 4 Chit. Crim. Law, 37. And for other « In Keg. v. Ferrall, 2 Den. C. C. 51, 169 §323 SPECIFIC OFFENCES. [book III. § 823. Form of Indictment. — It will serve all practical pur- poses simply to present one form of the indictment from the English books ; namely, — That, at the general quarter sessions of the peace of our Lady the Queen, holden for the couuty of Middlesex, at the New Sessions House on Clerk- enwell Green, in and for the county aforesaid, by adjournment, to wit, on, &c. before M, N, O, and P, esquires, and others their fellows, justices, &c. it was ordered by the same justices and court there, that, &c. [proceeding to state the order of sessions in the past tense '], [as by the said order, reference being thereunto had, will more fully and at large appear ^] ; of which said order the said A, one of the high constables in the order afore- said named, afterwards, to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, had notice. Nevertheless, the said A, late of the parish aforesaid, in the county aforesaid, gentleman, then being one of the high constables iu the order aforesaid mentioned, unlawfully and contemptuously, upon being served with the said order, did neglect and refuse to, &c. [here insert what the order required of him], as by the said order he the said A was required to do ; nor hath he the said A at any time since complied with the said order, although often requested so to do ; [in contempt of our Lady the Queen and her laws, to the evil example of other persons in the like case offending, and '] against the peace, &c.* 54, 56, Pollock, C. B., after distinguishing " between a non-payment of money and a refusal to do some act, such as being sworn in as a constable, or doing some other act of a public nature," intimates that, on principle, disobedience to an order simply to pay money should not be held indictable. Still he says : " The authorities are clear upon the point, that an indictment will lie for a refusal to comply with an order of justices for the payment of money; and, although I individually should not be dis- posed to hold, for the first time, that such a refusal was indictable since a like recusal to comply with an order of a superior court is not so, yet I feel bound by the authorities to concur with the rest of the court in this view of the law." But is it true that, by the English common law, a like order from a superior court, attended by the like cir- cumstances, would not come under the same rule ? I have read the English cases pretty thoroughly, yet I may have over- looked something ; but I can recall no de- cision to the proposition that disobedience to a judicial order from the higher courts is not indictable in circumstances wherein the like disobedience to a judicial order 170 from a magistrate would be. Stephen, in his "Digest," puts the doctrine, it seems to me with admirable precision ; thus, — " Every one commits a misdemeanor who disobeys any order, warrant, or command duly made, issued, or given by any court, oflBcer, or person acting in any public ca^ pacity, and duly authorized in that behalf, unless [here comes the important qualifica- tion, explaining why this doctrine is not more widely acted upon] any other penalty or mode of proceeding is expressly pre- scribed in respect of such disobedience." Steph. Dig. Crim. Law, 83. 1 See also, as to the setting out of the order. Rex v. Boys, Say. 143. 2 Doubtless not necessary. It is omitted from the 19th and I presume other late editions of Archbold. 8 Unnecessary. i\nte, §48; Crim. Pro- ced. I. § 647. * Archb. Crim. PI. & Ev. 10th ed. 584, 19th ed. 894. For other forms see 2 Chit. Crim. Law, 283, 284, 287, 291 ; 4 Went. PI. 229 ; Eex v. Winship, Cald. 72, 5 Bur. 2677 ; Eex a. Robinson, 2 Bur. 799 ; Rex V. Mytton, 4 Doug. 333; Eex v. Moorhouse, 4 Doug. 388, Cald. 554 ; Rex CHAP. XXIV.J CONTEMPT OP COURT AND THE LIKE. § 325 III. The Indictment for other Contempts} § 324. Elsewherfc — Here. — Most of the offences which are in- dictable contempts of court are known also by some other name ; as, for example, assault and battery, when committed in the judicial presence ; libel and oral slander, under circumstances to be such contempt ; and many of the offences for which forms will be given under the title " Obstructions of Justice and Gov- ernment " are also ^ contempts of court. The pleader, therefore, should consult other titles analogous to this for forms which would be equally appropriate here. § 325. Formula. — This offence is committed in such a variety of waj's and circumstances as to render it impossible to suggest any one set of allegations which will be adapted to all cases. The following incomplete formula may be in some degree helpful : — That A, &c. [ante, § 74-77] on, &c. at, &c. [ante, § 80], being personally then and there in presence of the court of, &c. which was then and there open and in the transaction of business, did, &c. [say what] whereby [for example] the business of said court was interrupted and disturbed, and the Honorable X, judge of the said court, who was then and there presiding therein, was insulted and maliciously defamed [or set out any transaction in the absence of the court amounting to an indictable contempt] ; against the peace, &c. [ante, § 66].* V. Kingston, 8 East, 41 ; Rex v. GUkes, 3 i Crim. Law, II. § 264-267, 273. Car. & P. 52 ; Eeg. -. Thornton, 2 Cox 2 lb. I. § 465-469 ; IL § 265. C. C. 493. More particularly, order for * For forms see other titles, particularly maintenance of bastard child, 2 Chit. Crim. "Libel and Slander" and "Obstructions Law, 281 ; 4 Went. PI. 227 ; Reg. v. Brisby, of Justice and Government ; " also 2 Chit. 1 Den. C. C. 416, 418, 2 Car. & K. 962; Crim. Law, 149, 235; Rex v. Barbone, Eeg. o. Ferrall, 2 Den. C. C. 51, 4 Cox Trem. P. C. 73; Rex v. Vavasour, Trem. C. C. 431. To pay costs of appeal, Reg. P. C. 79 ; Rex o. Forth, Trem. P. C. V. Orr, 12 U. C. Q. B. 57. To work on 80 ; Rex v. Harrison, 3 Howell St. Tr. highway. Rex v. Boyall, 2 Bur. 832. To 1369 ; Rex v. Barnardiston, 9 Howell make provision for the poor (against over- St. Tr. 1333 ; Rex o. Griffith, Vern. & S. seers), Rex v. Fearnley, 1 T. R. 316. To 612. pay church-rate, Eeg. v. Bidwell, 1 Den. Arkansas. — Wilson v. The State, 5 C. C. 222, 2 Car. & K. 564, 2 Cox C. C. Pike, 513. 298. To admit a person to a benefit Massachusetts. — Commonwealth u. Rey- society. Rex v. Gilkes, 8 B. & C. 439. To nolds, 14 Gray, 87. restore lands, Reg. v. Sewell, 8 Q. B. 161 ; Vermont. — The State v. Carpenter, 20 Reg. V. Wilson, 1 Cox C. C. 255. To pro- Vt. 9. duce a will of a deceased person. The State Virginia. — Commonwealth v. Feely, 2 V. Pace, 9 Rich. 355. "Va. Cas. 1. 171 § 327 SPECIFIC OFFENCES. [BOOK III. § 326. Words spoken to Judge in Open Court. — Reducing au old and voluminous form to modern proportions, we have, — That on, &c. at, &c. the Court of Common Pleas there was open for and occupied in the transaction of the business thereof, and the Honorable X, one of the judges thereof, was therein judicially sitting and presiding ; whereupon A, &c. wilfully, wickedly, and maliciously, presenting himself at the bar of said court, and not in the discharge of any duty, did then awl there proclaim and declare, in the presence and hearing of the; said Hon- orable X, aud of the jurors, witnesses, counsellors at law, and a large con- course of people there assembled and attending on said court, and to the disturbance and scandal thereof and of the said Honorable X, the words following, to wit, " You,'' meaning the said Honorable X, " are a traitor to your country, and I will have you impeached and turned out of your judicial seat, and hung ; " against the peace, &o.^ § 327. Threat made to induce Relinquishment of Verdict. — One of Chitty's forms is against an attorney at law, who, appearing in a cause for the plaintiff, and having a verdict rendered against him on the testimony of the defendant's son, wrote to the defend- ant's attorney threatening to prosecute the son for perjury unless he would relinquish all benefit from the verdict. Altered for use with us, it is, — That at a court of, &c. holden on, &o. at, &c. there came on in due form of law for trial before a jury a certain cause within the jurisdiction of said court, wherein one X was plaintiff, one Y was defendant, and one M appeared as attorney for the said Y ; and one Z, a son of the said Y, tes- tified therein on his oath duly administered as a w^itness for the said Y his father ; whereupon the said jury rendered, in due form of law, their ver- dict in favor of the said Y.^ And afterward, on, &c. at, &c. A. &c. who was the attorney of the said X at the trial of said cause, maliciously and unlawfully devising to obstruct the course of justice in said court and cause, and by wrongful means and unlawful threats to prevent the said verdict from being carried into execution, wrote to the said M, still being the attorney of the said Y in said cause, a letter in the words following, to wit [setting out the letter by its tenor, with the innuendoes necessary to explain its meaning], with the intent thereby to extort and procure from the said Y, through the wish of him the said Y to prevent, and for the purpose of preventing, the said threatened prosecution of the s:iid Z, a relinquishment of all benefit from the said verdict ; against the peace, &c.' 1 Rex u. Harrison, 3 Howell St, Tr. 2 Consult, ns to the form thus far, the 1369. Tor other forms see Avehb. Ciim. discussions in the chapter beginning ante, PI. & Ev. 19th cd. 899; Rex r. Griffith, §91. Vern. & S. 612 ; Ciim. Proced. II. § 807. » 2 Chit. Crim. Law, 149. 172 CHAP. XXIV.] CONTEMPT OP COURT AND THE LIKE. § 328 § 328. To prevent Witness appearing. — The adjudications are not sufficiently numerous to enable one to say, on authority, to exactly how small proportions the indictment for this offence may be reduced. The following is in substance a form held, on careful consideration, to be good ; it is shorter than Chitty's, which it resembles,^ yet pretty plainly it admits of further abridgment : — That heretofore, on, &c. N, a deputy sheriff of the county of [duly authorized and legally qualified to perform the duties of said office ''], by virtue of a warrant directed to him, and issued in due course of law, by M, esquire, a justice of the peace within aud for the county of O, did [at, &c.^] summon and give notice to one X to appear before the Police Court of the city of, &c. when and where the complaint hereinafter stated should come on for trial, to give evidence of what he the said X knew relating to the matter of a certain complaint of P, it being withiu the jurisdiction of said court, charging that A, &c. [the defendant], did theretofore, on, &c. at, &c. in said county, in and upon the body of one P make an assault ; * where- upon the said A, on, &c. at, &c. did, well knowing the premises, and de- vising to obstruct the course of justice in the said Police Court, wilfully, unlawfully, designedly, and unjustly, hinder and prevent the said X from appearing [and the said X did not appear ^] before the said Police Court when and where the said A was had for trial on the aforesaid complaint, in obedience to the aforesaid notice and summons, to give evidence of what he knew relating to the matter of the said complaint [by then ^ and there 1 2 Chit. Crim. Law, 235. That on, &c. at, &c. one X having been in 2 There is no ground for deeming this due form of law summoned to appear before allegation necessary. In point of law, it is the Police Court of, &c. to give evidence of immaterial whether the officer was "legally ^^at he knew of the matter of a complaint qualified," or was merely an officer de-facto. 1''™ pending in said court, and within its Cvira. Law, I. § 464. And the court judi- J^nsdiction wherein P complained that there- . ,, , , c J ^ 1. -cc tofore m said countv, on a dav named, A, &c. cially knows the powers of a deputy sheniT. .... ■,' ,. r, ■litri^ c T. ■ "^ , , S ' . , committed an assault on him the said F [all of If there were two classes ot officers of the ^^-^^ -^ inducement, and so pvoperlv averred same name, and only those of the one class ;„ ^^iiB indirect and brief form. Then pro- were legally competent to do this service, ceed] ; the said A did then and there, well there should be an averment bringing the knowing the premises, &c. [setting out the particular officer within the authorized offence], class. The information in Commonwealth v. 8 This was notin the form before me, and Feely, 2 Va. Cas, 1, which was adjudged the court held it not to be necessary. Pos- good, contains but little more than is thus sibly some pleader may choose to insert it. suggested. * A review of the principles stated in ^ This is not necessary, because such the chapter beginning ante, § 91, may assist fact is not essential to the constitution of the practitioner in determining how this the offence. Crim. Law, I, § 468. Still its part of the indictment should be. If I insertion may be practically well if the mat- were to express my individual opinion, I ter within the next brackets is omitted. It should say that the following is sufficient is not at this place in the form before me. in law, and practically better than the ^ If the matter between these brackets elaborate setting out in the text : — is important, it is rendered nugatory and 173 § 329 SPECIFIC OFFENCES. [BOOK III. threatening to cause the said X to be arrested and imprisoned if he appeared before said Police Court as he was then and there summoned, notified, and required by law to do ; and that by the threatening of the said A as aforesaid, the said X was then and there hindered, dissuaded and prevented from appearing, and did not appear, before said Police Court, when and where the said A was had for trial before said Police Court on said complaint, then and there to give evidence of what he the said X knew relating to the matter of said complaint ^] ; against the peace, &C.'' § 329. Practically, — in most cases of contempt of court, the proceeding will be the summary one explained in the first sub- title. But circumstances not unfrequently occur wherein the indictment is both the more judicious and the more effectual remedy. With the help afforded here and in other titles of this volume, the practitioner will readily devise all needed forms. the indictment bad by the use of "then" "That he the said John Feely did use in this place to denote the time ; provided means to prevent, and did then and there that, as in the form before me, the pleader prevent, one Samuel Wright from attending inserts different days where I have used «« ~ -^'^ess to give evidence to prove the the &c. It so becomes uncertain to which «^«™ti»° "^ » d^^/ »* trust, which deed of . ^, J ^. I. ^1. » r n • trust was executed by the said John leelv one of the days the then refers. Unm. * t i, t) » Proced. I. § 414, This defect seems to have been overlooked by counsel. ^ Commonwealth v. Reynolds, 14 Gray, I I cannot think that any of the matter 87. For a form for endeavoring to pre- in these brackets is essential, especially if vent a witness from appearing and testify- that in the last preceding brackets is in- ing before a grand jury, see The State v. serted ; because a complete offence has Carpenter, 20 Vt. 9. Against 'Witness, already been set out, and with sufficient — for not testifying before grand jury, minuteness. In Commonwealth v. Feely, Batre v. The State, 18 Ala. 119. Bupra, this part of the indictment is, — For CONVEYANCES, FRAUDULENT, see Fraudulent Conveyances. CORRUPTION IN ELECTIONS, see Election Offences. COUNSELLING, see ante, § 105, 106, 114-117, U9-121. COUNTERFEIT MONEY, see, besides the next chapter, Fokgekt. 174 CHAP. XXV.] COUNTERFEITING, ETC. AS TO COIN. § 331 CHAPTER XXV. COTTNTEEPEITING AND THE LIKE AS TO COIN.^ § 830. Elsewhere. — The substantial parts of the indictment for various offences against the coin are given in the chapter in " Criminal Procedure," reducing the necessity for multiplying forms in the present connection. § 331. Under Common Law — (Uttering). — All indictments in the United States courts are statutorj' ; and, for reasons explained in other volumes of this series, the practitioner will seldom or never have occasion to draw an indictment for any offence against the coin under the common law of his State.^ In England, also, where doubtless some of the common law of these offences re- mains, the judicial reports contain few or no modern cases upon it, and even the current books of practice furnish no common-law forms for the indictment. But Chitty lias four forms, severally for the common-law misdemeanor of fraudulent uttering, one of which is, — That A, &c. [being an evil-disposed person '], on, &c. at, &c. did unlaw- fully and deceitfully, with intent to defraud one X, utter and expose [and cause and procure to be uttered and exposed *] to the said X nine pieces of gold, for and as good and true guineas of the proper money of this realm [with us, gold coins of the proper money of the United States of America], notwithstanding none of the said nine pieces of gold, at the said time when they were so uttered and exposed [and caused and procured to be uttered and exposed '], were good and true guineas of the proper money of this realm 1 For the direct discussions of this of- = Crim. Law, I. § 178, 194, 198, 199, fence, including the pleading, practice, and 479, 988 ; II. § 279, 281, 284-287 ; Crim. evidence, see Crim. Law, II. § 274-300; Proced. IL § 248, 265. Crim. Proced. II. § 246-271. Collateral, « Unnecessary. Ante, § 46. Crim.Law, I. § 178, 204, 359, 412, 479, 686, * A needless supplement to the clause 765,769,799,988; II. § 607 ; Crim. Pro- next preceding. Ante, § 139 and note, ced. I. §529, 636, 1126, 1127 ; Stat. Crimes, and the places there referred to. § 214, 225, 306-308, 319. And compare ' Useless, as see last note. with the title Forgbrt, &c. 175 § 333 SPECIFIC OFFENCES. [book m. \with us, gold coins of the proper money of the United States of America], but each of them had been unlawfully filed and by such filing diminished and rendered defective in their weight, which before such filing they had, being before such filing good and true guineas [gold coins] of the proper money of this realm [the said United States] ; he, the said A, at tlie time he so uttered and exposed [and caused and procured to be uttered and exposed ■■] the said nine pieces of gold as aforesaid, then and there well knowing that none of them were good and true guineas [gold coins of the said United States], but that each of them had been so as aforesaid filed, diminished, and rendered defective in their weight ; [to the evil example, &c.^ and] against the peace, &c.' § 332. On Statute. — The indictment on a statute must follow the same rules as other statutory indictments. Viewing together the State and United States enactments, they are so diverse that no one formula can profitably be given for all. Hence, classify- ing them, — § 333. Counterfeiting. — On a statute. State or National, in the terms of that of the United States,* the allegations may be, — That A, &c. [ante, § 74-77], on, &c. at, &c. [ante, § 80, 89], did falsely and feloniously make, forge, and counterfeit ' ten ^ pieces cf [false, forged, and counterfeit'] coin, each in resemblance and similitude of a gold coin of 1 Needless, as see above. 2 Needless. Ante, § 48. 8 2 Chit. Crim. Law, 116. These aver- ments are uselessly verbose. The plead- er, if he chooses, can reduce them to one half their words without omitting any- thing. Chitty's other three common-law forms are for uttering a counterfeit half guinea, p. 116 ; for uttering a counterfeit sixpence, while another is found in the utterer's custody, p. 117; and for selling counterfeit Dutch guilders as good, p. 119. They are substantially like the one in the text. * R. S. ofU. S. § 5457. ^ These are the words of the indictment in United States a. Gardner, 10 Pet. 618. The words of the present English enact- ment are " falsely make or counterfeit any coin resembling," &c. 24 & 25 Vict. c. 99, § 2. This expression is simple and suf- ficient. But the terms of our national legislation are needlessly prolix ; thus, — " falsely makes, forges, or counterfeits, or causes or procures to be falsely made, forged, or counterfeited, or willingly aids or 176 assists in falsely making, forging, or coun- terfeiting any coin or bars in resemblance," &c. E.S.ofU. S. §5457. All this means nothing more than the simpler English expression, and few pleaders will deem it wise to cover the latter alternatives here quoted. Ante, § 139 and note, and the places there referred to. It might not practically be as well to use the still sim- pler expression " did falsely and feloniously counterfeit ; " because, in some circum- stances, it might be contended for the de- fendant that, though he " fiilsely made " the coin, he did not "counterfeit" it; thus opening the door to a useless discussion which the writing of two words would avoid. '^ A variance between allegation and proof in the number of pieces will work no harm. Crim.Proced.il S 252 (I §4?8/j, 579) ; Archb. Crlm. PI. & Ev. 19th ed. 804. ' Tlie words in these brackets, or a part of them, are in the forms commonly used. And though the expression counlerfeited a counterfeit coin seems inaccurate, it has CHAP. XXV.] COUNTERFEITING, ETC. AS TO COIN. §334 the coinage of the United States of America^ called a half-eagle^ [or, of a foreign silver coin, to wit, a silver coin of Spain, called, &c. by law then ^ cur- rent in the said United States, or then in actual use and circulating as money within the said United States] ; against the peace, &c. [ante, § 66-69].^ § 334. Same on Different Statute. — The indictment on a stat- ute differently expressed will vary with its terms. Under the simpler phrase " counterfeits any gold or silver coin current by law or usage within this State," ° the allegations may be, — That A, &c. on, &c. at, &c. did fraudulently and feloniously ' counterfeit ten pieces of the gold coin of the United States of America [current by law and usage within this State'], one piece whereof is called an eagle, two pieces whereof are called half-eagles, and seven pieces whereof are called quarter-eagles ; against the peace, &c.* been adjudged legally good. Crim. Pro- ced. II. § 253. Still as the adjectives " false, forged, and counterfeit " are not found in this place in the statute, I see no reason why they should be put into the indictment. 1 The words of the United States stat- ute are, at this place, " in resemblance or similitude of the gold or silver coins or bars which have been or hereafter may be coined or stamped at the mints and assay offices of the United States." If from the allega- tion in the text we omit the words " of the coinage," it will probably remain sufficient, but I hhould prefer to retain them. Vari- ous other methods of covering this statu- tory expression have been devised. I have given what seems to me the best. 2 Or, " five-dollar piece," as the pleader prefers. In designating the coin, it is prac- tically best to use the statutory name, though perhaps the indictment would not always be ill if a common name not in the statute was employed instead. For the statutory names of our American coins, whether of gold, silver, copper, or nickel, see R. S. of U. S. § 3511, 3513, 3515. A variance between allegation and proof, in the name of the coin, is fatal. Crim. Pro- ced. II. § 252, compared with lb. I. § 488. 8 In United States t. Gardner, supra, the expression is " which by law was then and still is made current in the United States of America." I see no propriety in thus alleging that the coin remains at the time of the indictment current with us. It need not so remain in point of law; or, 12 were this material, the former condition of things is presumed to continue ; or, again, the court judicially knows how the law is on this subject, the same as on every other. * For forms see Archb. Crim. PI. & Ev. 19th ed. 804 ; 2 Chit. Crim. Law, 103-108 ; Rex w. J. C. Trem. P. C. 227 ; Rex u. Harris, 1 Leach, 4th ed. 135 ; Rex v. Scott, 1 Leach, 4th ed. 401 (against principal and accessory before the fact) ; Crim. Proced. II. § 249, 251. Arhmsas. — Bell v. The State, 5 Eng. 536. Connecticut. — The State v. Stutson, Kirby, 52. Vermont. — The State v. Griffin, 18 Vt. 198. United States, — United States v, Gard- ner, 10 Pet. 618. 6 Mass. Pub. Stats, c. 204, § 14. 6 To be used only in a State where the offence is felony. ' These words appropriately bring the case within the statutory terms. Yet where, as in this particular form, the court can see that the pieces are current by law, I do not deem it necessary to aver that they are. Ante, § 175, 182 and note, 187 and note, 214, 255. 8 Compare with forms in Davis Prec. 131, and Train & H. Prec. 229. In these forms, to copy from the former, the coin counterfeited is described as " a certain piece of silver coin, current within this Commonwealth by the laws and usages thereof, called a dollar." In the text I have Used greater particularity of descrip- 177 §335 SPECIFIC OFFENCES. [book m. § 335. Impairing, &c. — In varying statutory terms one is made punishable " who," to copy from the United States statute, " fraudulently, by any art, way, or means, defaces, mutilates, impairs, diminishes, falsifies, scales, or lightens the gold and silver coins which have been, or which may hereafter be, coined at the mints of the United States," &c.^ On a provision in these words the allegations may be, for example, — That A, &c. on, &c, at, &c. did feloniously and fraudulently lighten one piece of the gold coin of the coinage of ^ the United States of America called an eagle, by abstracting from the surface thereof [or inner parts thereof], [by means to the jurors unknown '], one tenth ' part of the gold thereof, with intent to pass the said coin so lightened, and cause it to cir- culate, as and for a gold eagle of the standard weight ; against the peace, &c.« tion (Crim. Proced. L § 568) as better in accord with ordinary good pleading. Still I do not intend to intimate any donbt of flie sufficiency of the other method. 1 E. S. oftr. S. §5459. ^ See ante, § 333 and note. 8 Probably, as the terms of the statute are " by any means." this clause in the in- dictment is not necessary. Ante, § 334, note. * A variance as to the quantity remoTed would work no injury. Crim. Proced. L § 488 h. ^ We have not sufficient decisions to enable one to say how, upon authority, the indictment should be. Yet I cannot doubt the sufficiency of the form in the text. Our federal statute is a sort of copying and im- proving of the English 5 Eliz. c. 11, § 2, and 18 Eliz. t. 1, § 1. By the former, the "clipping, washing, rounding, or filing, for wicked lucre or gain's sake, of," &c. was made treason, and by the latter any one was declared a traitor who " shall, for wicked lucre or gain's sake, by any art, ways, or means whatsoever, impair, dimin- ish, falsify, scale, or lighten the proper moneys or coins of this realm," &c. On the former, Chitty's (2 Chit. Crim. Law, 110) form for the indictment is, — That A, &c. on, &c. at, &c. thirty pieces of gold called guineas, and three hundred pieces of silver called sixpences, of the proper moneys and coins of this realm, for wicked lucre and gain's sake falsely, feloniously, and traitorously clipped and filed, so that by means of the clipping and filing aforesaid every one of the said pieces of gold was 178 greatly diminished in the weight of which it ought by law to have been, and thereby be- came and was greatl}' lessened in value, to wit, to the amount of two shillings each, and the said pieces of silver were also thereby then and there greatly diminished in the weight of which they ought by law to have been, and thereby became and were gi-eatly lessened in value, to wit, to the amount of one penny each, and the same moneys so clipped and filed as aforesaid the said A, on, &c. at, &c. aforesaid, falsely, feloniously, and traitorously did expose and utter; against the peace, &c. The only form I have been able to find in our hooks on the American statute is the one originally published in Davis Prec. 138,— That A, &c. on, &c. at, &c. did unlaw- fully, fraudulently, and [for gain's sake, un- necessary, these words not being in our stat- ute] impair, diminish, falsify, scale, and lighten certain pieces, to wit, ten pieces of gold coin called eagles, which had been coined at the mint of the United States [or, ten pieces of foreign gold coin, which were by the laws of the United States made cur- rent, and were in actual use and circulation as money within the United States], with in- tent to defraud some person to the jurors un- known ; against the peace, &c. I do not propose to raise a question as to the sufficiency of this form. The one in the text better accords with my ideas of the precision and individualization of things proper to be employed in criminal plead- ing. CHAP. XXV.] COUNTERFEITING, ETC. AS TO COIN. § 337 § 336. Gilding, Coloring, &c., — to make an inferior substance pass for a gold or silver coin, are offences less common with us, and no form for the indictment need here be given.^ This is a counterfeiting of the coin, and no separate statute against it seems to be required. § 337. uttering, &c? — The offence against the coin oftenest prosecuted in our courts is the criminal uttering or passing of counterfeits. The pleader should carefully note the terms of the particular statute, and especially its meaning under interpreta- tion, and so frame his allegations as duly to cover the latter.^ We have seen what is the simple form in use under the not-com- plicated English enactment.* A form which will be suggestive, while embracing somewhat more than most of our statutes re- quire, is the following : — That A, &c. on, &c. at, &c. did feloniously,^ falsely, and deceitfully, with intent to defraud one X, utter and pass off [use the statutory words] to the said X two false and counterfeit coins, one of them in the resemblance [or likeness] and similitude of a gold coin of the coinage of the United States of America called a quarter-eagle, and the other in the resemblance and similitude of a foreign coin of Mexico called a dollar, then made current and then in actual use and circulation as money within the said United States ; he the said A then and there, while so uttering and passing the said coins, well knowing them to be false and counterfeit ; against the peace, &c.° 1 For English forms, see 2 Chit. Crim. 5 Omit where the offence is misde- Law, 105 ; Archb. Crim. PI. & Et. 19th meanor. ed. 806 ; Reg. v. Turner, 2 Moody, 42. In ^ I haye drawn this form with a sort of this case, the majority of the judges held it general reference to our statutes, State and to be sufficient under 2 Will. 4, u. 34, to National, but especially with E. S. of U. S. say, " three pieces of the queen's current § 5457, lying before me. And see Crim. silver coin called sixpences then and there Proced. II § 258. For other forms, see 2 feloniously did gild with materials capable Chit. Crim. Law, 112; 6 Cox C. C. App. of producing the color of gold, with intent 79. In interpreting our statutes, and in to make the same resemble and pass for framing indictments upon them, we may the queen's current gold coin called half- derive help from Rex v. Franks, 2 Leach, sovereigns; against," &c. 4th ed. 644. By 15 Geo. 2, c. 28, it was 2 For the meaning of the verbs to " ut- made punishable for one to " utter or ten- ter," to " put off," to " pass," &c. see Stat, der in payment any false or counterfeit Crimes, § 306-309 ; Crim. Law, II. § 605- money, knowing the same to be false or 608; procedure, as to coin, Crim. Proced. counterfeit, to any person or persons." And II. § 257-263 ; as to forged paper, &c. lb. the judges held, that, while the word " ten- II. § 425-425 b, 442, 447, 453, 460. der " was qualified by the words " in pay- 8 Ante, § 32. ment," " utter " was not ; so that an indict- * Crim. Proced. II. § 258. And see ment for uttering need not aver that the coin Archb. Crim. PI. & Ev. 19th ed. 812 The was passed as good. It sufficed to say, — present 24 & 25 Vict. c. 99, § 9, is a re- ^^^^ ^_ ^^ ^^_ ^^_ ^^^ ^^_ „^^^ p.^^^ ^^ enactment of 2 Will. 4, c. 34, § 7. j^j^^ ^^^ counterfeit money, made and coun- 179 §339 SPECIFIC OFFENCES. [book III. § 338. uttering after Former Conviction. — How the indictment should be for an uttering after a former conviction appears in previous explanations,^ compared with the last section.^ § 339. Two Titterings on Same Day or within Ten Days. — Utlder a statute simply making punishable the uttering of counterfeit coin, a count would be double and therefore bad which should charge two separate and distinct utterings. But where the pro- vision is, that two utterings on one day or within ten days of each other shall be punished in a particular way, there is only one offence committed by both utterings, and both must be alleged in one count.^ The method is to set out the first as though it alone constituted the offence ; and then, before the words " against the peace," charge the second in like manner. Thus, — [After setting out the first uttering, proceed] : and afterward, on, &c. being the same day [or within ten days of the said day] whereon the said A so as aforesaid uttered and passed the said counterfeit coin, he the said A did, &c. [averring the second uttering as though it were alone the offence].^ terieited in the likeness and similitude of a piece of good, lawful, and current money and silver coin of this realm, called a shilling, then and there unlawfully, unjustly, and de- ceitfully did utter to one X, he the said A at the time when he so uttered the said piece of false and counterfeit money, then^and there well knowing the same to be false and coun- terfeit; " against the peace, &c, English forms for various modifications of this offence may be fonnd in Archb. Crim. PI. & Ev. 19th ed. 810, 812, 814, 815; 2 Chit. Grim. Law, 111, 113, 114, 117 ; Rex i-. Deane, 4 Went. PI. 5.3. For two utterings in one day, Rex u. Smith, 2 Leach, 4th ed. 956, Russ. & Ry. 5 ; Rex v. Martin, 2 Leach, 4th ed. 923 ; Reg. o. Jones, 9 Car. & P. 761. Two in ten days, 6 Cox C. C. App. 80 ; Rex o. Tandy, 2 Leach, 4th ed. 833 ; Rex o. Michael, 2 Leach, 4th ed. 938, Russ. & Ry. 29. Ut- tering, having other counterfeit coin in pos- session, Reg. V. Page, 2 Moody, 219, 221, note, 9 Car. & P. 756. After conviction of former offence, Reg. v. Page, supra ; Rex V. Booth, Russ. & Ry. 7; Reg. v. Thomas, Law Rep. 2 C. C. 141, 143, 13 Cox C. C. 52. Various modifications of Ae offence under our American statutes, — 180 - Gabe v. The State, 1 Eng. -People V. White, 34 Cal. Arkansas. — 540. California. ■ 183. Georgia. — Gentry v. The State, 6 Ga. 503. Indiana. — Dashing v. The State, 78 Ind. 357. Massachusetts, — Commonwealth v. Bond, 1 Gray, 564. Ohio. — Leonard u. The State, 29 Ohio State, 408. Tennessee. — Peck v. The State, 2 Humph. 78 ; McKinley v. The State, 8 Humph. 72. Virginia. — Kirk v. Commonwealth, 9 Leigh, 627. Wiscomdn. — Wilson v. The State, 1 Wis. 184. 1 Ante, § 91-96. ^ See also, for forms, places referred to in the last section. The reader should not overlook any statutes in his own State, in modification of the common-law rules of pleading the former conviction. 8 Crim. Proced. I. § 432 et seq. ; Eex v. Tandy, 2 Leach, 4th ed. 833 ; Rex v. Mar- tin, 2 Leach, 4th ed. 923. * Compare with Archb. Crim. PI. & Ev. CHAP. XXV.J COUNTERFEITING, ETC. AS TO COIN. § 342 § 340. Uttering, having other Counterfeits in Possession. — The indictment, after the manner of the form in the last section, sets out the uttering as though it alone constituted the offence, then proceeds : — And that he the said A, then and there [if two days or places have before been alleged, alter the expression to avoid the uncertainty ^], while so as aforesaid uttering the said pieces of counterfeit coin, had in his possession [or otherwise following the statutory words] one other piece [or ten other pieces] of counterfeit coin, &c. [describing the coin as in a charge of utter- ing it, and adhering to the statutory terms] ; against the peace, &c.^ § 341. Possessing with Intent. — The indictment for possessing counterfeit coin with the intent to utter it follows the statutory terms, and in other respects is similar to that for uttering ; as, for example, — That A, &c. on, &c. at, &c. [feloniously], deceitfully, and fraudulently had in his possession one piece [or, in his custody and possession at the same time ten similar pieces, or otherwise covering the statutory terms] of false and counterfeit coin [each of said pieces being] in resemblance and similitude of the gold coin of the coinage of the United States of America called an eagle [or, in resemblance and similitude of a silver coin current within this State called a Mexican dollar,' or otherwise adapting the alle- gation to the particular statutory terms and the special facts], then and there well knowing the said piece [or said several pieces] of false and counterfeit coin to be false and counterfeit, with the intent to utter and pass the same as true ; against the peace, &c.* § 342. Having the Tools, Materials, &c. — The indictment for having in possession tools or materials for counterfeiting the coin follows the statutory terms, and particularizes the thing pos- sessed. If, for example, the statute makes punishable " every person who shall knowingly have in his possession any mouia, 19thed. 815, andKeR. ,-. Jones, 9 Car. &P. 2 Moody, 219, 221, note, 9 Car. & P. 761. In Rex u. Martin, supra, the averment 756. was simply, "and that the said A, on the ^ Commonwealth v. Fuller, 8 Met. 313. said fourteenth day of February," &c. not * For other forms, see Archb. Crim. PI. saying otherwise that it was the same day, & Ev. 19th ed. 81 7 ; 6 Cox C. C. App. 80 ; and it was adjudged adequate. Still the Eex i>. Fuller, Russ. & Ry. 308 ; Reg. v. correctness of this decision is not quite clear, Jarvis, Dears. 552, 7 Cox C. C. .53 ; Reg. and it has not been followed in the English v. Martin, 1 1 Cox C. C. 343 ; Reg. v. Tier- practice. Certainly the form in the text, ney, 29 U. C. Q. B. 181. or something like it, is more judicious. Massachusetts. — Commonwealth v. Grif- 1 Crim. Proced. I. § 414. fin, 21 Pick. 523 ; Commonwealth v. Fuller, 2 Archb. Crim. PI. & Ev. 19th ed. 814 ; supra; Commonwealth v. Stearns, 10 Met. 2 Chit. Crim. Law, 114; Reg. v. Page, 256. 181 § 343 SPECIFIC OFFENCES. [BOOK III. pattern, die, puncheon, engine, press, or other tool or instrument, adapted and designed for coining or making any counterfeit coin, in the similitude of any gold or silver coin current by law or usage in this State, with intent to use or employ the same, or to cause or permit the same to be used, in coining or making any such false and counterfeit coin as aforesaid," the allegations may be, — That A, &c. on, &c. at, &c. did [feloniously ^ and] knowingly have in his possession a mould, a pattern, a die, a puncheon, a tool, and an instru- ment, severally and collectively adapted and designed^ for coining and making one side of a counterfeit coin in the similitude of one side of the silver coin of the coinage of the United States of America, current by law and usage in this State, called a half-dollar,' to wit, the side whereon is the figure of an eagle, with the inscription " United States of America," * with intent to use and employ the same mould, pattern, die, puncheon, tool, and instrument, and cause and permit the same to be used and employed, in coining and making such false and counterfeit coin as aforesaid; against the peace, &c.° § 343. Attempt — (Coin not Current). — In England, by 37 Geo. 3, c. 126, § 2, it was declared punishable to " make, coin, or counterfeit any kind of coin not the proper coin of this realm nor permitted to be current within the same, but resembling or made with intent to resemble, or look like, any gold or silver coin of any foreign prince, state, or country, or to pass as such foreign coin." Whereupon, by force of the common law, it became what with us would be termed an indictable attempt, 1 To be inserted where the offence is should think the simple expression "the felony. reverse side " alone adequate. ^ In the indictment before me the words ^ Commonwealth ti. Kent, 6 Met. 221. hefe are "a certain mould, pattern, die, For other forms, see 2 Chit. Crim. Law, puncheon, tool, and instrument." There 108, 110; Arclib. Crim. PI. & Ev. 19th ed. is some difference in the meaning of these 819, 820; Rex v. Moore, 1 Moody, 122; several names of the thing, and this form Reg. v. Harvey, 11 Cox C. C. 662. of the allegation might not unfairly be held Arkansas. — Bell v. The State, 5 Eng. to require that it appear in the proofs to 536. be all six. The changed language in the Illinois. — Miller v. People, 2 Scam. text is introduced to obviate the objection. 233. Crim. Proced. I. § 586-588. Massachusetts. — Commonwealth o. 8 R. S. of U. S. § 3513. Morse, 2 Mass. 128. * lb. § 3517. I doubt the necessity of North Carolina.— The State v. Collins, designating the side. But, assuming it to 3 Hawks, 191. be necessary, surely no more can be requii-ed Texas. — Long k. The State, 10 Texas than clearly to indicate which of the two Ap. 186. sides, where the devices for each are defined Virginia. — Commonwealth c . Scott, 1 by public law, is meant. In this view, I Eob. Va. 695. 182 CHAP. XXV.] COUNTERFEITING, ETC. AS TO COIN. § 344 though the English judges gave it another name,^ to prepare im- plements for such counterfeiting. And a count in the fol- lowing form, in more words than are strictly necessary, was sustained : — That A, &c. on, &c. at, &c. unlawfully, knowingly, and without any lawful authority or excuse, made [and caused to be made^], cut, and en- giaved, two certain dies upon one of which there was then and there made and impressed the figure, stamp, and apparent resemblance of one of the sides, to wit, the obverse side, of a certain silver coin, not the proper coin of this realm, nor permitted to be current within the same, called a half-dollar, being a silver coin of a certain foreign country, to wit, Peru [in South America, in parts beyond the seas °]. and in and upon the other of which said dies there was then and there made and impressed the figure, stamp, and apparent resemblance of the other side, to wit, the reverse side, of the said silver coin of the said foreign state, with intent in so doing to use the said dies, and by means of the said dies so made as aforesaid feloniously and contrary to the form of the statute in such case made and provided to make, coin, and counterfeit divers pieces of coin not being the proper coin of this realm nor permitted to be current within the same, but resembling and looking like, and intending to resemble and look like, the said silver coin called a half-dollar of the said foreign country [and so the jurors aforesaid upon their oath aforesaid do say that the said A, in manner and form afore- said, unlawfully did attempt feloniously to make, coin, and counterfeit cer- tain coin, not the proper coin of this realm, nor permitted to be current ■within the same, but resembling silver coin of the said foreign country, to wit, Peru aforesaid *] ; against the peace, &c.' § 344. Other Forms — might be given ; but it is believed that the foregoing admit of such ready adaptation tO differing statu- tory terms as to furnish ample guides for every emergency.^ 1 Crim. Law, I. § 435, 723 et seq. ' Reg. v. Roberts, Dears. 539, 7 Cox 2 Needless. Ante, § 139, note. C. C. 39. 3 Obviously not necessary. ^ For uttering a medal resembling a * I can see no occasion for the matter half-soYereign in size, figure, and color, but within these brackets, except possibly where of less value, Reg. v. Robinson, Leigh & C. the indictment is on a statute the terms of 604, 10 Cox C. C. 107. Selling counterfeit which have not been sufficiently employed coin, Leonard v. The State, 29 Ohio State, in the other allegations, within the illustra- 408. tion in Crim. Proced. 11. § 548-550. 183 § 346 SPECIFIC OFFENCES. [BOOK III. CHAPTER XXVI. CRtTELTY TO ANIMALS.^ § 345. What for this Chapter. — Cruelty to animals is, in Eng- land and most of our States, punishable under statutes so nearly identical that forms drawn after the common-law rules for use in one State will be nearly as serviceable in every other. In 1878, the " Massachusetts Society for the Prevention of Cruelty to Animals " issued, in a pamphlet, " Forms for Complaints " under the Massachusetts statute, and gave them wide circulation. Not many of them have been before the highest court ; but, through- out the State, they have been in constant use in the lower tri- bunals, and no judicial person has pronounced any of them ill. Thus they have acquired an indorsement which, though not au- thority, approaches toward it. They are characterized by the brevity and absence of verbiage recommended in tlie present vol- ume. This chapter, therefore, will consist of these forms, more or less modified in the expression, and such other forms as the books enable the author to furnish, accompanied by explanations and the needful references. § 346. Overdriving. — Under a statute making punishable one who " overdrives any animal" the allegations may be, — That A, &c. on, &c. at, &c. did cruelly overdrive a certain horse ^ on which he was riding [^or harnessed to a sleigh wherein he was riding], whereby the said horse was subjected to unreasonable and needless suffer- ing ; against the peace, &c.' 1 Por the direct discussion of this of- judicially knows that a horse is an animal, fence, with the pleading, practice, and evi- Crim. Proced. I. § 568-570 ; Stat. Crimes, dence, see Stat. Crimes, § 1099-1122. §426,440. The name of the owner need Incidental, Crim. Law, I. § 594-597 a ; not be given. Stat. Crimes, § 1120; nor, Crim. Proced. I. § 356, 629. as the value is immaterial to the punish- 2 It would not do to use merely the stat> ment to be inflicted, need it be alleged, utory word " animal," being too indefinite ; Crim. Proced. I. § 567; Stat. Crimes, nor is it necessary to say "a certain ani- § 427, 444, 445. mal, to wit, a horse," because the court ' Stat. Crimes, § 1118. In the coUec- 184 CHAP. XXVI.] CRUELTY TO ANIMALS. §348 § 347. Overloading. — Under a statute to punish one who " overloads any animal," the averments may be, — That A, &c. on, «&c. at, &c. having the charge and custody of a certain vehicle, to wit, a wagon, and of two ^ horses ^ harnessed thereto, did then and there cruelly overload said horses, by then and there placing upon said wagon a large number of boxes, barrels, and articles of merchandise too heavy in weight for the strength of said horses, and urging and compelling them to draw and attempt to draw said wagon while so overladen as afore- said ; against the peace, &e.' § 348. Driving Overloaded Horse. — This offence differs little from the last. The statutory words "drive, when overloaded, any animal," may be covered thus, — That A, &c. on, &c. at, &c. having the charge and custody of a certain horse-car and of two horses harnessed and attached thereto, and the said horses being then and there overloaded by the great weight of the said car and of excessive numbers of passengers admitted to and remaining in it, and by other things, all constituting a load too heavy for the strength of said horses, did then and there cruelly drive them when so overloaded, by then and there compelling them greatly to their suffering to draw the said overladen car ; against the peace, &c.* tion of "Forms" mentioned in the last section, the allegation is simply " did cru- elly overdfive a certain horse," and the compiler deems this to be sufficient. There is no authority to the contrary. The case lies near the line dividing two classes, and the majority of pleaders will probably choose to be certainly safe. For the prin- ciples, see Stat, primes, § 1115-1119, and the places there referred to. And see Dar- nell V. The State, 6 Texas Ap. 482. 1 Stat. Crimes, § 1121. 2 See ante, § 346, note. 5 As to how the allegations should be, see Stat. Crimes, § 1117. This, with one or two minor changes in mere words, is one of the forms mentioned ante, § 345. The New York statute is in similar terms, — "shall overload, or procure to be over- loaded, any living creature," — and it was by Recorder Hackett in People v. Tinsdale, 10 Abb. Pr. N. s. 374, accepted-as good to aver, — That A, &o. being a conductor of a pas- senger car on the Bleecker Street and Fulton Ferry Eailroad of the city of New York, and B, &c. being the driver of said passenger car of said railroad, on, &c. at, &c. did unneces- sarily overload and procure said passenger car to be overloaded, then and there being attached to said passenger car two living creatures, to wit, two horses ; by means whereof on a certain portion of the route of the said railroad the horses so attached to said passenger car were unable to draw said passenger car, but were, by reason of the premises aforesaid, overloaded, overdriven, tortured, and tormented; against the peace, &c. This form may be rendered more cer- tainly correct, and at the same time reduced, thus, — That A, &c. and B, &c. on, &c. at, &o. the said A being the conductor and tlje said B the driver on a certain passenger horse-car there, drawn by two horses harnessed and at- tached thereto, did then and there cruelly overload said horses, by admitting into said horse-car too great a weight of passengers and other things for their strength, and re- quiring them to their great and needless suf- fering to draw and attempt to draw it so overladen ; against the peace, &c. * See ante, § 345, 347, and notes. 185 § 351 SPECIFIC OFFENCES. [BOOK III. § 349. Torturing. — The indictment for torturing is constructed on the same principles as that for overloading.^ Under the stat- utory expression " tortures any animal," it may aver, — That A, &c. on, &c. at, &c. did cruelly ^ torture a certain cow ° by then and there cruelly beating, bruising, wounding, and mutilating the said cow ' [or, a certain cat, by then and there hanging the said cat in the air by a string fastened around its neck ; or, a certain rat, by then and there pouring over and upon its body an inflammable substance, setting fire there- to, and so cruelly and wantonly burning the said rat] ; against the peace, &C.5 § 350. Cruel Beating. — The offence of cruel beating requires no such expansion of the allegation as torturing.^ Under the statutory words " cruelly beats any animal," it may be, — That A, &c. on, &c. at, &c. did cruelly beat a certain horse ; ' against the peace, &c.' § 351. Mutilating. — The idea of mutilating is more complex than that of beating ; and, unlike beating, the act admits of many forms. Hence, though probably the question has not been ju- dicially determined, it is assumed that the indictment must set out the special manner of the mutilation.^ Where the statutory words are " cruelly beats, mutilates, or cruelly kills any animal," it being necessary to interpret them before drawing the indict- ment thereouji" ^g a,re confronted by the question whether " cru- elly" qualifies "mutilates" the same as "beats" and "kills." Considerably to shorten a dog's tail is to mutilate the animal ; so that, if "cruelly" in the statute does not qualify "mutilates," the shortening is certainl}' within its penalties ; otherwise it is so only if such mutilation is deemed " cruel." In this case, con- trary to what is common when a doubt about the interpretation 1 Stat. Crimes, § 1116, 1117. 8 Ante, § 346, note. ^ I insert this word "cruelly" here, * Commonwealth ^.Whitman, 11 8 Mass. though it is not in the statute, and though 458. I do not deem it necessary. No indictment ^ Ante, § 345. is drawn in ahsolutely the fewest words the ^ Stat. Crimes, § 1115, 1116. pleader thinks will pass. The statutes con- ' Ante, § 346, note, templated in this chapter are all construed 8 Commonwealth v. McClellan, 101 with a view to protecting the animal from Mass. 34 ; Commonwealth v. Lufkin, 7 cruelty, — there might be, for example, a, Allen, 579. torturing which would not be cruel because 9 gtat. Crimes, § 1U5-1119. necessary or otherwise justifiable, — and so W Ante, § 32. it seems to be appropriate in averment to say " cruelly torture," &o. 186 CHAP. XXVI.] CRUELTY TO ANIMALS. § 353 presents itself, we can so frame the allegations without resorting to a second count as to leave the question for the final adjudica- tion of the court.i They may be, — That A, &c. on, &c. at, &c. did cruelly mutilate a certain dog,^ by then and there cutting oflf a large piece, to wit, a j)iece six inches in length, of the tail of the said dog ; against the peace, &c.' § 352. Wilful and Wanton Wounding. — What is a "wound" we saw in another connection.* The idea is reasonably precise and single ; so that the manner of the wounding, or the particu- lars of the wound, need not be averred.^ Therefore a statute in Texas having made it punishable "if any person shall wilfully and wantonly kill, maim, wound, &c. any dumb animal," it was adjudged adequate to say, — That A, &c. on, &c. at, &c. unlawfully did wilfully and wantonly wound a certain bull ; against the peace, &c.° § 353. Cruel Killing. — Under a statute to protect the owners of animals from malicious mischief to them as property, to " kill " an animal presents a simple and not a double or complex idea, and in averment the method of killing being immaterial need not be stated.'' But under an enactment made to shield the animal from needless suffering, " cruelly " to kill it involves a great variety of methods, and the method of killing is that wherein the offence consists ; consequently it must be stated in the indict- ment.^ Where the statutory words are " cruelly kills any ani- mal," the allegations may be, — That A, &c. on, &c. at, &c. did cruelly kill a certain woodchuck,' by then and there burning and roasting it to death [or, a certain dog, by then and there wantonly and without justifiable cause throwing the said dog from and out of a high window down to and upon the ground, thereby so wounding and bruising the said dog that it was put into great pain 1 Consult again ante, § 32. & Ev. 19th ed. 720, 721. And see Eex v. 2 Ante, § 346, note. Owens, 1 Moody, 205 ; Reg. «. Bullock, 3 This is one of the " Forms " mentioned Law Rep. 1 C. C. 115. ante, § 345. ° The State v. Brocker, 32 Texas, 611. 4' Stat. Crimes, § 314, and see § 216. ' Stat. Crimes, § 446. 6 Thus, under the statutory words {24 ' Stat. Crimes, § 1119. & 25 Vict. c. 100, § 18), "shall unlawfully » Ante, § 346, note. If the pleader and maliciously by any means whatsoever should doubt, as he will not be likely to, wound, &c. any person," the common form whether the name woodchuck belongs to of the averment is, that the defendant " un- the general English language or is local, lawfully and maliciously did wound " him, he may say " a certain animal then and not specifying further. Archb. Crim. PI. there called a woodchuck." 187 § 356 SPECIFIC OFFENCES. [BOOK IH, and torment for fifteen minutes and more, continuing therein until afterward it did then and there of the said cruel wounds and bruises die ; or, a cer- tain rat, by then and there pouring over and upon its body an inflammable substance, setting the said inflammable substance on fire, and thereby caus- ing it in great and needless pain and suffering then and there to die] ; against the peace, &C.'' § 354. Depriving of Necessary Sustenance. — Under the statu- tory words " deprives of necessary sustenance any animal " the allegations may be, — That A, &c. on, &c. [as at ante, § 80, or with the continuando as at ante, § 83, either method being permissible], at, &c. having the care and custody of a certain horse,^ under the duty to provide the said horse with necessary sustenance, did then and [during the whole time aforesaid ^] there cruelly deprive the said horse of necessary sustenance ; against the peace, &c. § 355. Inflicting Unnecessary Cruelty. — Upon a statute pun- ishing one who, " having the charge or custody of any animal, either as owner or otherwise, inflicts unnecessary cruelty upon the same," the allegations may be, for example, — That A, &c. on, &c. at, &c. having the charge and custody of a certain calf, did then and there inflict unnecessary cruelty upon the same, by lay- ing it upon its side, and cruelly placing and piling upon it the bodies of three other calves, whose weight did then and there and thereby press upon, crush, and torture the said calf so laid upon its side beneath said other calves as aforesaid [or, a certain cow, did then and there inflict un- necessary cruelty thereon, by then and there fastening the said cow to a wagon drawn by a horse, and driving the same, with the said cow so fastened to said wagon, at a furious rate of speed, faster than the said cow was able to travel, thereby cruelly dragging the said cow in great pain and suffering after said wagon] ; against the peace, &c.* § 356. Not providing Proper Shelter. — Under a statute to pun- ish one who, " having the charge or custody of any animal, either as owner or otherwise, unnecessarily fails to provide the same with proper food, drink, shelter, or protection from the weather," it is good in averment to say, — 1 Ante, § 345. In Collier «. The State, ' To be inserted only if the continuando 4 Texas Ap. 12, where the indictment is is used. And probably it is not even then otherwise constructed, the terms and pur- necessary. Ante, § 84. poses of the statute avo different. * See ante, § 345, 346, note. 2 Ante, § 346, note. 188 CHAP. XXVI.] CRUELTY TO ANIMALS. § 359 That A, &c. OS, &c. [without the continuando, as at ante, § 80, or with it, as at ante, § 83, either being permissible], at, &c. having the charge and custody of a certain horse,^ under the duty to provide the said horse with proper shelter and protection from the weather,^ did then and [during the whole time aforesaid '] there unnecessarily and cruelly fail to provide the said horse with proper shelter and protection from the weather ; against the peace, &c. § 357. Driving when Unfit for Labor. — A statute making pun- ishable " every owner, possessor, or person having the charge or custody of any animal, who cruelly drives or works the same when unfit for labor, or cruelly abandons the same," is sufficiently covered as to the driving by, — That A, &c. on, &c. at, &c. having the charge and custody of a certain horse, which by reason of a recent sprain in the cords of one of its legs so that any movement of said leg created great pain, and by reason of a sick- ness the name whereof is to the jurors unknown, and, &c. [setting out as many distinct and not repugnant causes as the pleader chooses^], was then and there unfit for labor, did then and there cruelly drive said horse along the public way for a long distance and time, thereby then and there inflict- ing upon the said horse great and cruel pain and suffering ; against the peace, &c. § 358. Abandoning. — The allegations, upon the statutory words given in the last section, for abandoning an animal, may be, — That A, &c. on, &c. at, &c. having the charge and custody of a certain horse, which, by reason that one of its legs was broken, was in great pain and suffering, unable to move about, and incapable of supplying itself with food, and so in great need of being relieved and cared for by the hand of man, did then and there cruelly abandon the said horse so in pain, suffer- ing, and want, without relieving or caring for the same ; against the peace, &c. § 859. Cruelly Transporting. — Adding, to the statutory words now in contemplation,^ " or who carries the same, or causes the 1 Ante, § 346, note. Hence interpretation puts into the present ^ The reader perceives that the statute statute the clause here introduced into the is silent as to this duty. But it is a part indictment. And an indictment is always of the common law, that, for a neglect to to be drawn, not on the verbal, but on the be punishable, it must be accompanied by interpreted statute. Ante, § 32 and the a duty. Crim. Law, I. § 314, 433, 557, plates there referred to. 883, 884 ; II. § 667 ; Crim. Proced. II. ' See ante, § 354, note. § 538, 538 a. And statutes are construed * Within the principles stated ante, in harmony with the common law, and § 19-21. as contracted and expanded in meaning by * Ante, § 357. it. Stat. Crimes, § 88, 119, 123, 134-144. 189 § 362 SPECIFIC OFFENCES. [BOOK III. same to be carried, in or upon any vehicle or otherwise, in an unnecessarily cruel or inhuman manner," we have those whereon is drawn the following form : — That A, &c. on, &c. at, &c. having the charge and custody of a certain sheep, did then and there carry the said sheep in an unnecessarily cruel and inhuman manner, in and upon a vehicle [or wagon, &c.] by him driven and under his control, by then and there, &c. [saying how the animal was carried] ; against the peace, &c. § 360. Suffering Cruelty to be inflicted. — Again, adding to the statutory words now in contemplation,^ " or knowingly and wil- fully authorizes or permits the same to be subjected to unneces- sary torture, suffering, or cruelty of any kind," we have those on which the following form is constructed : — That A, &c. on, &c. at, &c. having the charge and custody of a certain dog,^ did then and there knowingly and wilfully authorize and permit the said dog to be subjected to unnecessary torture, suffering, and cru- elty, by then and there knowingly and wilfully permitting it to be bit- ten, mangled, and cruelly tortured by a certain other dog ; against the peace, &c.' § 361. Cock-fighting as Cruelty. — Under some or all of the stat- utory words " cruelly beat, ill-treat, overdrive, abuse, or tor- ture," * is included cock-fighting.^ It is deemed to be good in allegation to say, — That A, &c. on, &c. at, &c. did cruelly beat, abuse, ill-treat, and tor- ture two certain cocks,^ by then and there wilfully and cruelly setting on, provoking, inciting, and causing each to fight the other in a bar- barous and unlawful cruel sport called a cock-fight, whereby each of said cocks was cruelly torn, mangled, and maltreated ; against the peace, &c.' § 362. Other Forms. — These forms might be further ex- tended ; ^ but it is believed that, without more, the pleader will 1 Ante, § 357, 359. 7 I do not deem the form in Budge v. ^ Ante, § 346, note. Parsons, supra, one which ought practi- » Commonwealth v. Thornton, 113 cally to be followed, not deeming it neces- Mass. 457. sary to say whether or not it is sufBcient * 12 & 13 Vict c. 92, § 2. in law. For a form for assisting in a. ' Stat. Crimes, § 1110; Budge i>. Par- game of cock-fighting, see Moriey w. Green- sons, 3 B. & S. 382. halgh, 3 B. & S. 374. 8 Compare with ante, § 222. And see ^ Shooting Pigeons. — See, for a form ante, § 346, note. " Cock " is the word for this, The State v. Bogardus, 4 Misso. in Budge v. Parsons, supra. I presume Ap. 215. "rooster" would be equally well. 190 CHAP. XXVI.] CRUELTY TO ANIMALS. § 362 find in them and the accompanying explanations a sufficient guide for all emergencies. For DEAD BODIES, see Sepultbeb. DEFILEMENT OF WOMEN, see Conspikaot — Rape — SBDtrcTiON and Abduction, &c. DISOBEYING ORDER, see ante, § 322, 323. DISORDERLY HOUSE, see Nuisance. DISSUADING "WITNESS, see ante, § 328. 191 § 365 SPECIFIC OFPENCKS. [BOOK IH. CHAPTER XXVII. DISTUEBING MEETINGS.* § 363. In General. — The offence of disturbing meetings with the allegations for it, under the common law and the various statutes, is of pretty wide range ; the considerations relating to ■which are the special nature of the meeting, the sort of disturb- ance resorted to, and, where it is statutory, the terms of the par- ticular statute. As to the indictment, what is special to this offence is that, — § 364. Alleging Disturbance. — The particular disturbance must, in principle, and by the general practice, be set out, instead of the mere averment that the defendant disturbed the meeting ; though there is much not well considered authority to the effect that the latter alone will suffice.^ But if, for example, it was by ■words spoken, they need not be given as in oral blasphemy ,'^ some forms of contempt of court,* and other offences the gist whereof consists of the special words ; for, whether the disturbance was by words or acts, they need only be characterized in the way of general description.^ § 365. Formula for Indictment. — The following formula, sub- ject to be varied, when on a statute, to conform to the particular statutory terms, indicates how the indictment may be : — That A, &c. [ante, § 74-77], on, &c. at,^ &c. [ante, § 80. If the day of the week is material, as, for example, that it was Sunday, lay the time as ^ For the direct expositions of this of- Hinson, 31 Ark. 638 ; Bush v. The State, 5 fence, with the pleading, practice, and evi- Texas Ap. 64 ; Richardson v. The State, dence, see Crim. Law, I. § 542 ; II. § 301- 5 Texas Ap. 470 ; Kidder v. The State, 58 310 a; Crim. Proced. II. § 284-301. Inci- Ind. 68; The State c. Stubblefield, 32 dental, Crim. Law, II. § 249 ; Crim. Pro- Misso. 663 ; Cockreham o. The State, 7 ced.X.§ 374, 441,484; Stat. Crimes, § 211. Humph. 11; United States v. Brooks, 4 2 Crim. Proced. II. § 285, 287, 289, 290. Craneh C. C. 427 ; The State -•. Swink, 8 Ante, § 242-244. 4 Dev. & Bat. 358 ; The State v. Jasper, * Ante, § 326. 4 Dev. 323. ' Crim. Proced. ut snp. ; The State v. » Crim. Proced. II. § 286 a. 192 CHAP, XXVII.J DISTURBING MEETINGS. § 366 in ante, § 85], did wilfully interrupt and disturb ■^ [or, follow the statutory- expression ^] a congregation of people there lawfully and peaceably assem- bled for, &c. [setting out enough to show that the meeting is one the dis- turbance of which is indictable. For various forms for this see Crim. Proced. II. § 28G], by then and there, &c. [saying what the disturbance was.^ The pleader may here set down, in the one count, whatever he chooses to present to the jury, and the indictment will be sustained by proof of enough to constitute an offence *] ; against the peace, &c.^ § 366. Common-law Form — (Disturbing Religious Worship). — The books do not contain any form for this offence at common law so neatly constructed, or become so venerable by age and use, as to render important its preservation in exact words. But, removing minor blemishes, we have such as, — That A, &c. on, &c. [being Sunday ^] , at, &c. did, in the parish church there [while the people of the said parish and others were therein assem- bled for divine service'], and during the celebration thereof, unlawfully and unjustly take and remove the bench of one X from its ancient and proper place, and also * did then and there unlawfully, unjustly, and irrev- 1 The expression here varies greatly in the precedents, and the pleader has a wide choice. 2 Crim. Proced. II. § 296. 8 Ante, § 364. 4 Crim. Proced. II. § 295 ; ante, § 19-21. 5 For forms see Archb. Crim. PI. & Ev. 19th ed. 998; 2 Chit. Crim. Law, 21-34; 4 lb. 3 ; Eex v. 'Wilson, 4 Went. PI. 362 ; Eex V. Parry, Trem. P. C. 239 ; Eex v. Hube, 5 T. E. 542. Alabama. — Smith v The State, 63 Ala. 55. Arkansas. — The State v. Horn, 19 Arlc. 578 ; The State v. Hinson, 31 Arlc. 638. Connecticut. — The State v. Gager, 26 Conn. 607, 28 Conn. 232. Georgia. — Hicks v. The State, 60 Ga. 464. Indiana. — The State v. Zimmerman, 53 Ind. 360 ; Kidder v. The State, 58 Ind. 68 ; Smith «. The State, 71 Ind. 250; Cooper V. The State, 75 Ind. 62. Massachusetts. — Commonwealth v. Sy- monds, 2 Mass. 163 ; Commonwealth v. Hoxey, 16 Mass. 385 ; Commonwealth v. Bearse, 132 Mass. 542. Missouri. — The State v. Bankhead, 25 Misso. 558 ; The State u. Stubblefield, 32 Misso. 563; The State v. Schieneman, 64 Misso. 386. 13 New York. — People v. Degey, 2 Wheeler Crim. Cas. 135 ; People u. Crow- ley, 23 Hun, 412. North Carolina. — The State v. Jasper, 4 Dev. 323 ; The State v. Swink, 4 Dev. & Bat. 358 ; The State v. Fisher, 3 Ire. Ill ; The State v. Bryson, 82 N. C. 576. Pennsylvania. — Campbell v. Common- wealth, 9 Smith, Pa. 266. Rhode Island. — The State u. Eead, 12 K. I. 135. Tennessee. — Cockreham v. The State, 7 Humph. 11. Texas. — Loekett v. The State, 40 Texas, 4 ; Bush u. The State, 5 Texas Ap. 64 ; Eichardson v. The State, 5 Texas Ap. 470 ; Copping v. The State, 7 Texas Ap. 61. Virginia. — Commonwealth v. Daniels, 2 Va. Cas. 402. United States. — District of Columbia. United States v. Brooks, 4 Cranch C. C. 427. 6 In the form before me, but I presume not necessary. ' Not in the form before me. In the absence of this it appears only inferentially that there was a meeting ; hardly, in rea- son, sufficient. 8 This is an instance of charging more than one act' of disturbance as explained ante, § 365. 193 § 368 SPECIFIC OFFENCES. [BOOK III. erently disturb and hinder one Y, then being curate of the said parish church, and in the execution of his office, and in the reading of divine ser- vice ' [or, as the expression has been altered in some American cases, in the Ebenezer Baptist Church there, during the celebration of divine ser- vice, unlawfully, unjustly, and irreverently did disturb and hinder one Y, then being the minister officiating in the said church, and then being in the discharge therein of his sacred functions and in the performance of divine service] ; ^ against the peace, &c. § 367. Another. — Or, under other facts, the allegations at common law may be, — That A, &c. on, &c. [being, &c. as at ante, § 85, or not, as the fact is and the pleader chooses], at, &c. did unlawfully, maliciously, and irrever- ently hinder and disturb a congregation of people lawfully assembled in a building called the M meeting-house [or church ; or in the dwelling-house of one N], for the purpose of, and then and there engaged in, public divine worship [and prayer to Almighty God] ; by then and there loudly talking and profanely cursing and swearing, and thereby and otherwise then and there making a great noise in and near the said meeting-house, and in the hearing of the people therein assembled and worshipping as aforesaid [or, by then and there making divers ridiculous and indecent actions and grim- aces, talking and laughing in a loud voice, and otherwise misbehaving himself during the performance of such divine service] ; against the peace, &c.» § 368. Secular Meeting at Common Law.* — The allegation will vary with the nature of the meeting, and the laws under which it is held. It may, for example, be, — That on, &c. at, &c. a meeting of the School Committee of the town of, &c. [or otherwise stating what the meeting was, according to the law and fact], having been duly summoned and called, was lawfully held ; and then and there, while the said meeting was duly engaged in the transaction of the business for which it was so summoned and called [or otherwise], A, &c. and B, &c. came into the presence thereof, and wilfully and unlawfully, by loud noises, profane swearing, indecent talking and actions, and ludi- ' 2 Chit. Crim. Law, 21 ; Rex v. Parry, the public worship of God, and of the due Trem. P. C. 239. observation of the Lord's day," and the con- ^ People V. Degey, 2 Wheeler Crim. elusion that his conduct was " to the great Cas. 135; People v. Crowley, 23 Hun, disturbance and insult of the orderly people 412. there, and on the said other days and times, ' United States v. Brooks, 4 Cranch then and there assembled," and similar C. C. 427 ; The State v. Jasper, 4 Dev. averments in the other cases, are needless. 323 ; The State o. Swink, 4 Dev. & Bat. Ante, § 46, 48. 358. The allegation, as in The State v. * As to what meetings, see Crim. Law, Jasper, that the defendant was " a person I. § 542. regardless of the duties and solemnities of 194 CHAP. XXVII.] DISTURBING MEETINGS. § 369 crous grimaces, hindered, disturbed, obstructed, and interrupted it in the transaction of its lawful business as aforesaid ; against the peace, &c.^ § 369. Under Statutes — (English Form). — Generally, for this offence, the indictment on a statute differs from that on the com- mon law only in embracing the special statutory terms. And it is explained in " Criminal Procedure." ^ Thus, in England, the Toleration Act, after providing for the registration of places wherein Dissenters may lawfully worship, declares punishable any one who " shall wilfully and maliciously or contemptuously disquiet or disturb any meeting, assembly, or congregation of persons assembled for religious worship, permitted or authorized by this act, or any former act or acts of Parliament ; or shall in any way disturb, molest, or misuse any preacher, teacher, or per- son officiating at such meeting, assembly, or congregation ; or any person or persons there assembled."^ And a form of in- dictment in common use, after setting out the registration of the place, — as, for example, " a certain house situate at, &c. therein to assemble and meet for religious worship," — pro- ceeds, — That afterward, on, &c. a congregation of Protestants, dissenting from the Church of England, of which the said X was then the teacher and preacher, were assembled for the public worship and service of Almighty God in the house aforesaid, so certified, registered, and recorded as aforesaid ; and that A, &c. B, &c. and C, &c. then,* whilst the said congregation were so assembled as aforesaid, and during divine service, at, &c. afore- said, unlawfully, willingly, and of purpose, maliciously and contemptuously did come into the said congregation, during divine service as aforesaid, and did then and there willingly, and of purpose, maliciously and contemptu- ously disquiet and disturb the said congregation by then and there talking, cursing, and swearing, with a loud voice, and also by talking with a loud voice to the said X, he the said X then and there being in the pulpit [the doors of the said meeting-house and place where the said congregation were so assembled as aforesaid not being then locked, barred, or bolted '] ; against the peace, &c.° 1 In Campbell v. Commonwealth, 9 « 52 Geo. 3, c. 155, § 12. Smith, Pa. 266, is the form of an indict- * Assuming that only one day has been ment held good, but in principle of doubt- alleged, as see ante, § 328 and note, ful suflScioncy, for disturbing a meeting of ^ An allegation like this could be re- school directors. In Commomvealth v. quired only to cover an exception in the Hoxey, 16 Mass. 385, the indictment, which statute. was held good, was for disturbing a town ^ Archb. Crim. PI. & Ev. 10th ed. 667, meeting for the election of town officers. 19th ed. 998. 2 Crim. Proced. II. § 289-300. 195 § 872 SPECIFIC OFFENCES. [BOOK III. § 370. Simpler Form. — Under the less complicated statutory ■words " shall interrupt a congregation assembled for the purpose of worshipping the Deity," it has been adjudged good simply to say,— That A, &c. on, &c. at, &c. did [unlawfully, contemptuously, and of purpose ^] interrupt a congregation of Methodists, then and there assem- bled for the purpose of worshipping the Deity, by then and there talk- ing and swearing with a loud voice ; against the peace, &c.^ § 371. Other like Forms — may readily be drawn upon the statutes as required, it being deemed that further specimens would be superfluous.^ § 372. Trading, &c. near Camp-meeting. — We have a few stat- utes against interrupting camp-meetings by trading and other things not harmonious with their objects, in the vicinity of the places where they are held ; but the indictment for the offence is easily constructed, and no form for it need here be given.* ' Probably not necessary, not being in 31 Ark. 638 ; Richardson v. The State, 5 the statute. Texas Ap. 470 ; Bush u. The State, 5 ^ Cockreham v. The State, 7 Humph. Texas Ap. 64 ; and other cases cited ante, n. § 365. * And see the forms in Kidder v. The * See forms in Commonwealth u.Bearse, State, 58 Ind. 68; The State v. Stubble- 132 Mass. 542; The State i;. Read, 12 K. I. field, 32 Misso. 563 ; The State v. Hinson, 135. For DOG, see ante, § 177. DOMESTIC ANIMALS, see Animals. DOUBLE OFFENCES, see ante, § 91 et seq. DOUBLE VOTING, see Election Offences. 196 CHAP. XXVm.] DRUNKENNESS. § 375 CHAPTER XXVIII. DRUNKENNESS.^ § 373. Common-law Nuisance. — A form of the indictment for the common-law nuisance of public drunkenness is given in " Statutory Crimes." '^ The dimensions of the offence are a little uncertain, and in a majority of our States any form of the indict- ment could be deemed only experimental. § 874. Common Drunkard. — Under a statute making it a mis- demeanor to be a " common drunkard," the allegations may be, — That A, &c. [ante, § 74-77] on, &c. at, &c. [without the continuando, as at ante, § 80, or with it, as at ante, § 83, at the election of the pleader '], was a common drunkard [having been on divers days and times within the six months then last past, at, &c. aforesaid, drunk and intoxicated by the voluntary and excessive use of spirituous and intoxicating liquors ; ^ or, having been, at, &c. aforesaid, on three several days and times within six months next preceding the said day, intoxicated under such circumstances as to amount to a violation of decency ^] ; against the peace, &c. [ante, § 66-69].° § 375. Drunk in Public Place. — To be drunk in a pubhc place is a misdemeanor under some of our statutes ; as, in Indiana, 1 For the direct expositions of this of- * Commonwealth v. Boon, 2 Gray, 74. fence, with the pleading, practice, and * The State n. Kelly, 12 R. I. 535. evidence, see Stat. Crimes, § 967-982. In- None of this matter in brackets is probably cidental, Crim. Law, I. § 399, 1113-1117; necessary, unless the statute contains more Crim. Proced. I. § 869; Stat. Crimes, than the words " common drunkard." Stat. § 796, 1064 et seq. These references do Crimes, § 977, 978. If it is necessary, the not include the many places in which form should perhaps be more carefully con- drunkenness as an excuse for crime is con- sidered. I have slightly amended both sidered. of these forms as extracted from the cases 2 Stat. Climes, § 974. And see form in cited, but if I deemed them essential I The State v. Deberry, 5 Ire. 371. should attempt still further improvement. ^ Stat. Crimes, § 979 ; The State v. ^ For forms, see the cases before cited Kelly, 12 R. I. 535. And see the explana- to this section; Commonwealth v. Whit- tions in Crim. Proced. I. § 392, 397, 402 ney, 5 Gray, 85 ; Commonwealth v. Foley, and note. 99 Mass. 499. 197 § 376 SPECIFIC OFFENCES. [BOOK III. where the words are " any person of sound mind found in any public place in a state of intoxication." The allegation may be, — That A, &c. on, &c. at, &c. was found ' in a public street, highway, and sidewalk there, in a state of intoxication ; against the peace, &c? § 376. Being Drunk. — Under a statute making punishable any one who " is guilty of drunkenness by the voluntary use of in- toxicating liquor," ^ it has been adjudged adequate simply to cover its terms by saying that, at a time and place specified, the defendant was, " with force and arms,* guilty of the crime of drunkenness by the voluntary use of intoxicating liquor," — a form, said the court, " not to be commended." ® The better allegation is, — That A, &e. on, &c. at, &c. was, by the voluntary use of intoxicating liquor, drunk to the degree of drunkenness ; against the peace, &c.° 1 " Fonnd " is necessary under a statute Stat. Crimes, § 903 ; ante, § 346 and note, in these terms. Stat. Crimes, § 980. For a form under the Vermont statute, see 2 The State v. Waggoner, 52 Ind. 481, The State v. Deavitt, 47 Vt. 287. 482 ; The State v. Moriarty, 74 Ind. 103 ; ^ Mass. Pub. Stats, c. 207, § 26. Stat. Crimes, § 975. The indictment being * Needless. Ante, § 43. required to set out only prima facie guilt, ^ Commonwealth v. Miller, 8 Gray, and the /Jn'mayacte presumption being that 484; Commonwealth c. McNamara, 116 the defendant was sane, the allegations need Mass. 340. not cover the statutory words " of sound ^ For forms, see the cases last above mind." Crira. Proced. II. § 669. Like- cited ; also The State v. Bromley, 25 Conn. wise a "public street, highway, and side- 6; The State v. Smith, 3 Heisk. 465, 466; walk" being, as of law, a "public place" The State v. First, 82 Ind. 81. Drunken- (Stat. Crimes, § 298), the indictment need ness in Office (as to which see Stat. Crimes, not aver that such place was public; nor § 969). — Shanks v. The State, 51 Missis. would it suffice to say simply that the of- 464, 467 (not good) ; Stat. Crimes, § 976, fence was committed in " a public place." and see cases in lb. § 969. 198 CHAP. XXIX.] DUELLING. § 378 CHAPTER XXIX. DUELLING.^ § 377. Elsewhere — Here. — Duelling being, when death fol- lows, murder, the consideration of it in this aspect belongs to the title " Homicide." We here contemplate it only as an attempt to kill, or breach of the peace ; embracing challenges and the like.2 § 378. Challenging. — Though the challenge is in most cases in writing it is, under the common law, optional with the pleader to set it out by its words or not ; and it is the same of a verbal challenge.^ The following is a familiar form for challenging at common law : — That A, &c. [ante, § 74-77], [being a person of a turbulent and quarrel- some temper and disposition, and contriving and intending, not only to vex, injure, and disquiet one X, and do the said X some grievous bodily harm, but also to provoke, instigate, and excite the said X to break the peace and to fight a duel with and against him the said A ^], on, &c. at, &c. [ante, § 80], wickedly, wilfully, and maliciously did write, send, and deliver [and cause and procure to be written, sent, and delivered^] unto him the said X a cer- tain letter and paper writing, containing a challenge to fight a duel with and against him the said A, and which said letter and paper writing is as fol- lows, that is to say, &c. [setting out the letter, with the innuendoes neces- sary to explain its meaning, as in libel ; or, more simply, wickedly, wilfully, and maliciously did provoke, instigate, excite, and challenge the said X to fight a duel with and against him the said A] ; [to the great damage, scan- dal, and disgrace of the said X, in contempt of, &c. and *] against the peace, &c. [ante, § 66-69].' 1 For the direct expositions of this of- Rowan, 3 Dana, 395 ; Commonwealth v. fence, with the pleading, practice, and evi- Hart, 6 J. J. Mar. 119 ; Brown v. Common- dence, see Crim. Law, II. § 311-317 ; Crim. wealth, 2 Ya. Cas. 516. Proced. II. § 302-311. Incidental, Crim. * Not necessary. Ante, § 45, 46. Law, I. § 10 and note, 143, 540, 654; II. 5 Unnecessary. Ante, § 139 and note. § 5 ; Crim. Proced. I. § 61. , ^ Unnecessary. Ante, § 48. 2 Crim. Law, II. § 311, 312. ' Archb. Crim. PI. & Ev. 10th ed. 604, ' Crim. Proced. II. § 305 ; The State v. 19th ed. 910. There is no need to multiply Farrier, 1 Hawks, 487 ; Commonwealth v. counts. If the pleader is in doubt how the 199 § 381 SPECIFIC OFFENCES. [BOOK III. § 379. Same on Statute. — Under a statute making punishable one " who shall give, accept, or knowingly carry a challenge, in Avriting or otherwise, to fight in single combat with any deadly weapon, either in or out of the State, and be thereof convicted," the allegations may be, — That A, &c. on, &c. at, &c. did give unlawfully and verbally a challenge to one X to fight him the said A, in single combat, with a deadly weapon, to wit, a pistol ; against the peace, &c.i § 380. Provoking One to challenge.^ — There is no single set of words in which alone this offence can be charged. The allega- tions at common law may be, for example, — That A, &c. on, &c. at, &c. did wickedly and maliciously endeavor to stir up, provoke, and excite one X to challenge the said A to fight with him a duel ; by then and there writing and sending to the said X a letter of the tenor [or effect *] following, that is to say, &c. [setting out the letter with the innuendoes necessary to explain its meaning ; or, by uttering and declaring in the presence and hearing of the said X the following words, — you are a scoundrel and a liar, and I shall take care to let the world know that you are so] ; with intent to instigate, excite, and provoke the said X to challenge him the said A to fight a duel with and against him the said A ; * against the peace, &c.^ § 381. Other Forms. — The foregoing forms cover, in sub- stance, the derelictions within the present title. Should other challenge was, or how it should be alleged, New Jersey. — The State v. Gibbons, 1 he can put all into one count, and at the Southard, 40. trial rely on so much as he is able to prove, North Carolina. — The State v. Parrier, within the principles explained ante, § 18- 1 Hawks, 487. 22. But he should say " did, &c. and, &c. South Carolina. — Cunningham o. The and, &c." or by some other like words avoid State, 2 Speers, 246. the appearance of charging two or more Virginia. — Brown v. Commonwealth, 2 offences. To put the allegations in the Va. Cas. 516. way they stand in two or more counts i Ivey t). The State, 12 Ala. 276. would render the one count double. Eor '^ Crim. Law, 11. § 312 ; Crim. Proced. other forms for challenging, at common II. § 310. law and on statutes, see 3 Chit. Crim. Law, ^ Crim. Proced. I. § 559, 560. In the 849-862; 4 Went. PI. 315, 317; 6 lb. 385; form in Chitty the words arc set out by Rex V. Devonshire, Trem. P. C. 188; Rex their tenor. But this would seem not to V. Philipps, 6 East, 464. be necessary. Ante, § 378 ; dim. Proced. Alabama. — Ivey v. The State, 12 Ala. IL § 310. 276. < This clause is a sort of repetition of Keniucli/. — Commonwealth v. Hart, 6 what has gone before, and its necessity is J. J. Mar 119 ; Commonwealth v. Rowan, doubtful. I retain it because it is in each 3 Dana, 395. of the three precedents cited below. Massachusetts. — Commonwealth u. ^ 3 Chit. Crim. Law, 861 ; Archb. Crim. Boott, Thacher Crim. Cas. 390; Common- PI. & Ev. 10th ed. 605, 19th ed. 911 ; Rex wealth V. Hooper, Thacher Crim. Cas. 400. v. Philipps, 6 East, 464. 200 CHAP. XXIX.J DUELLING. §381 forms ^ be needed, they may be readily drawn in analogy to those here given. ' The books furnish the following : For carrying a challenge, 3 Chit. Crim. Law, 855. Accepting challenge, Commonwealth i>. Eowan, 3 Dana, 395. Aiding and abet- ting a duel, Commonwealth v. Dudley, 6 Leigh, 613. Feloniously shooting at one in a duel. Keg. v. Douglas, Car. & M. 193. Sending a challenge about money lost in gaming, 3 Chit. Crim. Law, 862. For EAVESDROPPING, see Nuisance. 201 § 384 SPECIFIC OPPKNCES. [BOOK III. CHAPTER XXX. ELECTION OFFENCES.' § 382, 383. Introduction. 384-388. Illegal Voting and Attempts thereat. 389-391. Offences by Election OiBcers. 392-394. Other Obstructions and Undue Influencing. 395-398. Betting on Elections. 399, 400. Practical Suggestions. § 382. Elsewhere. — Under the titles Bribery ,2 Liquor Selling, Perjury, and some others, are forms of indictment for the several offences as against elections. In this chapter, — § 383. How Chapter divided. — We shall consider the indict- ment as to, I. Illegal Voting and Attempts thereat ; II. Offences by Election Officers ; III. Other Obstructions and Undue Influ- encing ; IV. Betting on Elections ; supplemented by, V. Prac- tical Suggestions. I. Illegal Voting and Attempts thereat. § 384. Formula. — The indictment which, when on a statute, must be so shaped as to cover the statutory terms, may, if it does, or if on the common law, aver, — That on, &c. at, &c. [ante, § 80] there was an election \or meeting of the electors, or town meeting, &c.] duly and in due form of law had and held for the choice of, &c.' and that A, &c. [ante, § 74-77], did then and there at said election \or meeting], &c. [setting out his offence] ; against the peace, &c. [ante, § 66-69].* 1 For the direct elucidations of these of- ^ Ante, § 248, 249. fences, with the pleading, practice, and 5 gtat. Crimes, § 832-834 ; ante, § 248, evidence', see Stat. Crimes, § 802-843, 931- 249. 949. Collateral, Crim. Law, I. § 471, 686, * For forms see Reg. v. Bent, 1 Cox 821 ; Crim. Proced. I. § 627 j Stat. Crimes, C. C. 356, 1 Den. C. C. 157, 160, 2 Car. & § 205, 852, 872. K. 179; Eeg. u. Bowler, Car. & M. 559; 202 CHAP. XXX.J ELECTION OFFENCES. §385 § 385. Double Voting. — None of the variously- worded prece- dents in the books for double voting are constructed with much neatness or skill. The following, which does not literally copy any particular one, embraces what of all is needful, good either on the common law ^ or on a statute the terms whereof it duly covers : — That on, &c. at, &c. there was an election duly and in due form of law had and held for the choice of, &c. ; and, at said election, A, &c. who was then and there a voter entitled to cast one ballot bearing the several names of the respective persons whom he wished chosen to the said several of- fices, did nevertheless then and there surreptitiously and corruptly cast at one time two such ballots \_or, having cast such ballot and retired, did then and there corruptly return to the place of voting and surreptitiously cast another such ballot], [or, going back further in the form, there being a place for voting called the M precinct, and another called the N precinct, A, &c. did then and there cast his vote in due form in the said M precinct, and afterward did then and there corruptly and surreptitiously repair to and so cast another vote in the said N precinct] ; ^ against the peace, &o.' Beg. V. Vaile, 6 Cox C. C. 470 ; Eeg. v. Hague, 9 Cox C. C. 412; Keg. v. Turner, 12 Cox 0. C. 313, 4 Eng. Rep. 561 ; Reg. 1^. Hogg, 25 U. C. Q. B. 66. Alabama. — Nettles v. The State, 49 Ala. 35; Carter v. The State, 55 Ala. 181. Connecticut. — The State v, Gorham, 11 Conn. 233. Florida. — Humphreys v. The State, 17 Fla. 381, 383 ; Dennis v. The State, 17 Fla. 389, 390. Indiana. — Quinn v. The State, 35 Ind. 485. Maine. — The State v. Boyington, 56 Maine, 512 ; The State v. Symonds, 57 Maine, 148. Massachusetts. — Commonwealth v. Sils- bee, 9 Mass. 417 , Commonwealth v. Shaw, 7 Met. 52 ; Commonwealth v. Bradford, 9 Met. 268 ; Commonwealth v. Desmond, 122 Mass. 12. Minnesota. —The State v. Welch, 21 Minn. 22 ; The State u. Davis, 22 Minn. 423. New Hampshire. — The State v. Mar- shall, 45 N. H. 281. New Jersey. — The State v. Moore, 3 Dutcher, 105. New York. — People v. Standish, 6 Par- ker C. C. Ill ; Burns v. People, 5 Lans, 189. Oregon. — The State v. Bruce, 5 Oregon, 68. Rhode Island. — The State v. Fitzpat- rick, 4 R. I. 269 ; The State v. Macomber, 7 R. I. 349. 1 As to the indictability of this offence at common law, see Crim. Law, I. § 471. In addition to the reason there given, the court, in Commonwealth v. Silsbee, 9 Mass. 417, 418, observed: "There cannot be a doubt that the offence described in the in- dictment is a misdemeanor at the common law. It is a general principle that, where a statute gives a privilege and one wilfully violates such privilege, the common law will punish such violation. In town meetings every qualified voter has equal rights, and is entitled to give one vote for every oflScer to be elected. The person who gives more infringes and violates the rights of the other voters, and for this offence the com- mon law gives the indictment." 2 The indictment in Commonwealth v. Silsbee, supra, concludes : "to the great destruction of the freedom of elections, to the great prejudice of the rights of the other qualified voters in said town of Salem, to the evil example of others in like case to offend," &c. The court observes that this " is proper for the case." Still it is need- less. Ante, § 48. 8 Commonwealth v. Silsbee, supra ; The State V. Welch, 21 Minn. 22 ; The State V. Davis, 22 Minn. 423 ; Commonwealth v. 208 § 387 SPECIFIC OFFENCES. [BOOK III. § 386. Voting when not Qualified. — The form may be, — That on, &c. at, &c. [setting out the holding of the election and its pur- pose as at ante, § 384, 385 '] ; and that A, &c. at said election, did then and there, not being and knowing himself not to be then and there duly qualified to vote thereat by reason that, &c. [setting out the want of quali- fication;^ as, that he had not attained the age of twenty -one years; or, that he was not then an inhabitant, &c. ; ' or, that he had made a bet then depending on the result of said election], nevertheless wilfully and cor- ruptly give in his vote for persons to serve in said offices, as though he were and as pretending to be qualified ; against the peace, &c.* § 887. Falsely Personating. — There is some English and Cana- dian authority apparently to the effect, that it is not an offence at the common law falsely to personate a voter at a municipal election and vote on his right.^ But this is plainly a voting with- out being qualified. And there can be little doubt that it would be deemed indictable at common law in the greater number of our States.^ It is a criminal misdemeanor or felonj' under vari- ous English and some American statutes.'^ The indictment will vary with the statutory terms, and with the differing rules which govern an election, and it is practically more voluminous in Eng- land, whether necessarily so or not, than is required by the de- cisions of our courts. The following is suggested, to be modified for the occasion as the pleader will know how : — That on, &c. at, &c. [setting out the holding of the election and its purpose as at ante, § 384, 385], one X was then and there a legal voter, and his name was duly registered as such, and as such it then and there stood on the voting lists. Whereupon A, &c. not being, and knowing himself not to be, then and there a legal voter [feloniously], wickedly, maliciously, Desmond, 122 Mass. 12; The State u. Gor- People u. Standish, 6 Parker C. C. Ill; ham, 11 Conn. 233; The State u. Boying- The State v. Bruce, 5 Oregon, 68; The ton, 56 Maine, 512. State v. Moore, 3 Dntcher, 105 ; Common- 1 And see Stat. Crimes, § 832, 833 ; wealth v. Shaw, 7 Met. 52 ; Commonwealth ante, § 248, 249. U.Bradford, supra; Quinn c. The State, 35 2 As to the necessity of this, see Stat. Ind. 485 ; The State v. Macomber, 7 R. I. Crimes, § 835, and the cases infra. And 349 ; and other cases cited ante, § 384. see the form ante, § 249. * Crim. Law, I. § 471 and note; Reg. 2 In one case before me this allegation v. Bent, 1 Den C. C. 157, 2 Car. & K. 179, is, " that he had not, before the said elec- 1 Cox C. C. 356 ; Reg. v. Hogg, 25 U. C. tion on the day aforesaid, resided in the Q. B. 66. Commonwealth one year, and within the ^ Andsee, on this question, Stat. Crimes, said city six months next preceding said § 803, 818, 818 a, and the places referred day." Commonwealth v. Bradford, 9 Met. to. 268. ' Stat. Crimes, § 818 a. 4 The State v. Marshall, 45 N. H. 281 ; 204 CHAP. 2XX.] ELECTION OFFENCES. § 389 and stealthily did then and there present himself, at the place of voting as aforesaid, before one M and one N, who were then and there inspectors of the said election with authority to receive and reject the votes tendered to be cast, and [feloniously], wickedly, maliciously, and falsely represent, state, and affirm to them that he was the said X, who was authorized as aforesaid to vote, and thereupon [feloniously], &c. offered and tendered to the said IM and N a vote in due form as though he was, and as being, the said X [which said offered and tendered vote the said M and N, as such inspectors as aforesaid, then and there received ■'] ; against the peace, &c.^ - § 388. False Answer. — Swearing falsely as to one's right to vote is under some of the statutes a species of perjury.^ Other statutes make the answer not under oath indictable. Under the words " wilfully give any false answer to the selectmen or mod- erator presiding at any election," the allegations may be, — That on, &c. at, &c. there was a town meeting of the inhabitants of the said town of, &c. for the election of, &c. presided over by the selectmen of the said town ; whereupon A, &c. then and there presented himself before the said selectmen, and, knowing himself not to possess the qualifications of a voter, fraudulently and surreptitiously demanded to have his name inserted on the voters' list of the said town and to be permitted then and there at said election to vote ; and, being then and there inquired of by the said select- men for the purpose of ascertaining and passing upon his said asserted right to vote, whether he had paid any tax assessed upon him within the two years then next preceding in any town or district in this State, he the said A did then and there knowingly and wilfully give to the said question the false answer that he had theretofore paid a tax assessed upon him in the city of, &c. in the county of, &c. within two years next preceding the said election, to wit, the annual tax of the year, &c. ; whereas, in truth and in fact, the said A had not paid any such tax so assessed on him within the said two years in the said city of, &c. as he the said A then and there well knew ; against the peace, &c.* II. Offences by Election Officers. §389. Malfeasance in Office — (Varying Statutes). — The of- fences within this sub-title consist of the differing sorts of mal- 1 This allegation introduces matter ate voter, Reg. v. Hague, 9 Cox C. C. probably not necessary to the offence, but 412. the pleader will choose to insert it when the ^ Humphreys v. The State, 17 Fla. 381, fact is thus. 383 ; Dennis v. The State, 17 Fla. 389, 2 For forms see Keg. v. Turner, 12 Cox 390 ; Burns v. People, 5 Lans. 189. C. C. 313, 4 Eng. Rep. 561 ; Reg. v. Bent, * Commonwealth v. Shaw, 7 Met. 52. supra ; Reg. v. Hogg, supra ; Reg. v. Vaile, For another form see Reg. v. Bowler, Car. 6 Cox C. C. 470 ; inducing one to person- & M. 559. 205 § 392 SPEcmc offences. [book hi. feasance in office which may occur under great varieties of elec- tion regulations, in our States and under the government of the United States. The pleader, therefore, should lay before him the particular statutes on which he is proceeding ; and consult, in connection with this chapter and the corresponding one in " Statutory Crimes," the title " Malfeasance and Non-feasance in Office." As a specimen form, — § 390. Refusal to Receive Vote. — Under the Indiana statute making punishable for misdemeanor " any inspector or judge of any election held within this State, who shall knowingly and wilfully, or corruptly, refuse or neglect to receive the vote of any legal voter, at any election held within this State," we have the following, — That on, &c. at, &c. [setting out the holding of the election and for what as at ante, § 384, 385, 388], and A, &c. [the defendant] was then and there the inspector of said election, and X was then and there one of the electors competent to vote thereat; whereupon the said X, then and there, offering and endeavoring to vote at said election, tendered to the said A who was then and there acting in the said office of inspector as aforesaid, his ballot for said purpose in due form of law ; but neverthe- less the said A, well knowing these premised facts, did then and there knowingly, wilfully, and corruptly neglect and refuse to receive the said vote of the said X ; against the peace, &c.* § 391. Other Forms — may be found at the places cited in the note.^ III. Other Obstructions and Undue Influencing. § 392. Attempting to prevent from Voting. — Under a Statute tO punish " any person who shall attempt or procure, by threats or intimidation, any other person to avoid voting at any town meet- 1 Bicknell Crim. Pr. 466, 467 ; referring, for neglect of daty. The State v. Handles, 7 for the statute, to Laws Spec. Sess. 1858, Humph. 9. Against commissioners of elec- p. 40. I have slightly altered and enlarged tion for malfeasance, United States v. Nich- the words of this form as it stands in Bick- olson, 3 Woods, 215. For giving a. false nell, to render it more acceptable for gen- certificate of election, United States v. eral use in our States. For a form for a Clayton, 2 Dil. 219, 220. Against a con- similar offence in a United States court, stable for not attending an election, 2 Chit, see United States !>. Foster, 4 Hughes, 514. Crim. Law, 265 Irregular holding of And see Stat. Crimes, § 838. election. Rex v. Atkins, Trem. P. C. 230, 2 Against inspector for neglect of duty 3 Mod 3, 2 Show. 236 ; Wyman v. Com- (form only in part given). Hall i>. People, monwealth, 14 Bush, 466, 469. 90 N. Y. 498. Against judges of election 206 CHAP. XXX.] ELECTION OFFENCES. § 394 ing," the allegations will vary with the facts. For example, they may be, — That A, &c. on, &c. at, &c. did make an assault on one X, and did then and there beat, bruise, kick, wound, and ill-treat the said X [or, did threaten one X, who obtained his livelihood by working for the said A as a journey- man boot-maker, to discharge him from said employment and give him no more work], in order and thereby attempting to procure, by threats and in- timidation, the said X, to avoid voting at the annual town meeting of said town of M, the said town meeting being then and there legally and duly held and in session [or, did threaten one X, who was then and there a per- son duly qualified to vote at the annual town meeting of the said town of M, which meeting was then and there being legally and duly held and in session, that he the said A would on the first opportunity horsewhip the said X in some private place, if he then and there voted at said town meet- ing, intending by said threat to procure the said X not to vote at said town meeting] ; against the peace, &C.-' § 393. Disturbing Election. — The allegations may be, — That on, &c. at, &c. [setting out the holding of the election, &c. as at ante, § 384, 385, 388], and A, &c. then and there came into the open meet- ing where the said election was being had and held, and did then and there, &c. [averring the act of disturbance in the manner shown ante, § 365 et seq.] ; against the peace, &c.^ § 394. Conspiracy against Election. — One form of obstruct- ing or corrupting an election is through conspiracy. The methods of averment do not differ from those already shown in the chapter on " Conspiracy," ^ and it will be sufficient here simply to refer to places where forms under the present head appear.* 1 The State v. Hardy, 47 N. H. 538. Eiots, Assaults, &c. at Election. — See It seems to me best, in general practice, to forms in Rex v. Pilkington, Trem. P. C. introduce in some form the allegation that 182 ; Commonwealth v. Runnels, 10 Mass. X was a qualified voter ; for I can well 518 ; People v. White, 55 Barb. 606. imagine that some courts will require this. ' Ante, § 279 et seq. Whatever is held in one State, the question * 7 Cox C. C. App. 15 ; Rex v. Has- will be a fair one in another, whether it is lam, 1 Den. C. C. 73 ; United States u. an offence under a statute in these terms to Butler, 1 Hughes, 457; United States v. procure a person to avoid voting who has Cruikshank, 1 Woods, 308 ; United States no right to vote. For other forms under t>. Goldman, 3 Woods, 187, 189. In Wa- other like statutes, see The State v. Franks, ture of Conspiracy. — The following 38 Texas, 640 ; United States v. Judges of forms may be consulted : for a corrupt Elections, 1 Hughes, 493, 494 ; Train & H. agreeing to receive the office of distributor Prec. 185. of stamps, on condition of allowing the 2 For a form see Commonwealth v. former possessor to have the profits for Hoxey, 16 Mass. 385. And see the form life, 3 Chit. Crim. Law, 682. Trafficking in Rex w Leech 9 Howell St. Tr. 351. in appointments to public offices, 3 Cox 207 §395 SPECIFIC OFFENCES. [book III. IV. Betting on Elections?- § 395. Formula. — The statutory terms creating this offence are so diverse that, as the indictment must cover the particular ones on which it is drawn, there can be for it no general formula which will not leave considerable to be filled in or adapted to fit the individual statute or instance. Still, assuming the offence not to be felony, and so not requiring to be charged as committed "feloniously," the outline may be, — That A, &o. [ante, § 74^77], on, &c. at, &c. [ante, § 80], did unlawfully [or, &c. using the statutory word] bet \or lay a wager, or otherwise as the statutory expression may be] with one X^ [ante, § 79], (in) the sura of fifty dollars * [or one suit of clothes of the value * of forty dollars], that, at the general State election in this State then next to be held,^ M [who was then a candidate nominated for the office of governor of the State ^] would be elected and chosen governor of the State [or did win from X by betting, &c. or otherwise, following the statute] ; against the peace, &c. [ante, § 66-69].' C. C. App. 33 ; Eeg. v. Charretie, 3 Cox C. C. 499. Corrupt contract to procure appointment to office, Samo «. Reg. 2 Cox C. C. 178. 1 Stat. Crimes, § 931-949. ^ The name should be averred. Stat. Crimes, § 944. ' It is well to be cautioiis about this sort of averment. See ante, § 248 and note, 250, note. In Williams v. The State, 12 Sm. & M. 58, 63, the learned judge ob- served : " It is relied upon that, while the indictment charges a bet of money to the amount of two hundred dollars, the evi- dence shows the bet upon the part of Wil- liams to have been four United States treasury notes, each of the denomination of fifty dollars. . . . This point we deem to be well taken. In legal acceptation, such notes are not money ; and, even if the in- dictment had charged the bet to have been made with them as valuable things, their value must have been proved, to have war- ranted a conviction." Thacher, J. And see Stat. Crimes, § 874, 875, 901, 920, 921. ^ Necessary only when as of law affect- ing the punishment. Stat. Crimes, § 945. See also The State v. Bridges, 24 Misso. 353. ^ There are cases which hold it to be 208 necessary to state the time of the election. Lewellen v. The State, 18 Texas, 538. Aod doubtless this is the correct rule for some circumstances. But where, as in the form in the text, the time is fixed by gen- eral law, whereof the court takes judicial cognizance, no just reason can be given why it should be averred otherwise than as in the text. ^ As to the necessity of this allegation, see Stat. Crimes, § ,942, 943. It appears in most of the precedents. ' For forms see Stat. Crimes, § 938-940, 944 ; also, — Indiana. — Parsons v. The State, 2 Ind. 499 ; Hizer v. The State, 12 Ind. 330 ; Fra- zee V. The State, 58 Ind. 8 ; The State v. Windell, 60 Ind. 300 ; Wagner v. The State, 63 Ind. 250 ; Caldwell v. The State, 63 Ind. 283. Kentucky. — Commonwealth v. Kennedy, 15 B. Monr. 531. Mississippi. — Miller o. The State, 33 Missis. 356. Missouri. — The State v. Eagan, 22 Misso. 459 ; The State v. Bridges, 24 Misso. 353 ; The State v. Smith, 24 Misso. 356. Pennsylvania. — Sherban v. Common- wealth, 8 Watts, 212. Tiaras. — Lewellen v. The State, 18 Texas, 538. CHAP. XXX.] ELECTION OFFENCES. § 398 § 396. Lose or Win — (Value). — On a statute in the words " Every person who shall, by . . . betting at or upon ... the result of any election, either lose or win any article of value, shall be fined in any sum not less than the value of the article so lost or won, nor exceeding twice the value thereof," ^ the allegations may be, — That A, &c. on, &c. at, &c. unlawfully won and took from one X twenty-five dollars,^ by then and there unlawfully betting and wagering the same with him upon the result of a certain election had and held on, &c. in this State, for governor thereof ; against the peace, &c.^ § 397. Bet. — On a statute to punish one who " shall wager or bet any sum of money, or anything of value, upon any election under the constitution and laws of this State or of the United States," it is a good form to say, — That A, &c. on, &c. at, &c. did wager and bet one hundred dollars in money * [or one hat of the value of five dollars,^ or a valuable thing called a hat, or suit of clothes °] with X, that he the said A would get and re- ceive, at the M precinct, in T county, one hundred votes for tlie office of clerk of the County Court of said county, for which office he the said A was then and there a candidate,^ at an election then and there being held under the constitution and laws of this State ; against the peace, &c.° § 398. Another Form for Betting — may be, — That A, &c. on, &c. at, &c. did lay a wager and bet of fifty dollars with one X, that a certain M, who was then and there a candidate nominated for the public office of governor of this State, would, at an election to be held under the constitution and lav7S of this State, on, &c. be elected gov- ernor thereof; against the peace, &c.' 1 For the statute see Wagner v. The But, in the absence of any decision to this State, 63 Ind. 250. effect, I should deem it safer to pnt the 2 Ante, § 395, note. averment in some form into the indict- 8 Caldwell v. The State, 63 Ind. 283. ment. And compare with Stat. Crimes, § 885, ^ Stat. Crimes, § 900, 901. 938-941 , 944, 945, 947 ; Hizer v. The State, ' Deemed important in Kentucky, and 12 Ind. 330. perhaps also in some other States. Ante, * As to this, see ante, § 395, note ; Stat. § 395 and note, and places there referred Crimes, § 901, 939. to. 5 This allegation of value would not be ' Commonwealth i>. Kennedy, 1 5 B. necessary but for the special terms of the Monr. 531. And see, for a like form on a statute " anything of value." Ante, § 395, similar statute. The State v. Smith, 24 note; Stat. Crimes, § 938, 945. Perhaps Misso. 356, 357 ; The State v. Ragan, 22 the court will take judicial cojrnizance of Misso. 459. what is palpable to the non-judicial under- 9 Sherban v. Commonwealth, 8 Wiitts, standing, that a hat is a "valuable thing." 212. 14 209 § 400 SPECIFIC OFFENCES. [BOOK IIT. V. Practical Suggestions. § 399. Duty of Prosecuting Officer. — There is DO duty of a prosecuting officer more urgent, or demanding greater fidelity in its performance, than the prompt, energetic, and intelligent fol- lowing up to conviction of every offence against the purity of the elections. This multiform wrong is the one great crime which, in a republic, should never be overlooked or forgiven. "When laxity herein becomes possible in any large part of our country, hope for the permanency of fiee institutions dies. And he who herein murders hope deserves, in a just estimation of his offence, whatever the laws may say, the heaviest punishment possible for a government to inflict on the subject. In the frenzy of party strife, the temptation of a prosecuting officer, manipulated by the unprincipled great men of his own party, to overlook an offence committed in the interest of the party, when there is a public opinion declaring the success of the party necessary to the salva- tion of the country, and the offence indispensable to party suc- cess, is immense. He who resists the temptation and does his duty, finds, in his own breast, and he will ultimately find in the public regard, a reward which only a madman would throw away. § 400. Methods. — There is nothing in methods of prosecution special to this offence. The prosecuting officer should bring learning, industry, and integrity into all his work ; and only these, with integrity most carefully erect, are required under the present head. 210 CHAP. XXXI.] EMBEZZLEMENT. § 403 CHAPTER XXXI. EMBEZZLEMENT.! §■ 401. Indictment Peculiar and how. — Alike under the earlier statutes of embezzlement and under most of the modern ones, as commonly interpreted, the indictment is required to be wrought and twisted into such special shape as to charge, in a single count and as one offence, two dissimilar offences, the one statu- tory and the other at common law. The one of these offences is embezzlement as defined by the statute, and the other is com- mon-law larceny ; and the pleader must not omit from his alle- gations a particle of what belongs to either,^ — a rule, however, which by statutes passed from time to time has been more or less relaxed.^ Hence, — § 402. Elements of Indictment. — In the absence of a relaxing statute, the indictment must charge, in addition to Tenue and time, that the defendant did feloniously steal, take, and carry away, not so much money, but such and such enumerated coins, bank-bills, chairs, tables, or other articles ; stating also the own- ership of them, and, as far as the rule in larceny requires, the value.* This is the larceny element, charged after the manner of the common law. The other is the statutory element ; and the indictment, into which the larceny element is woven, cov- ers the particular statute, like other indictments on statutes.* Thus, — § 403. Formula. — Many of our American statutes are copied 1 For the direct elucidations of the law And see lb. § 417-424. See also Lak- of this offence, with the pleading, practice, cent. and evidence, see Crim. Law, II. § 318- " Rex v. McGregor, Enss. & Ry. 23, 2 383; Crim. Proced. II. § 314-343. Col- Leach, 4th ed. 932, 3 B. & P. 106. lateral, Crim. Law, I. § 567; II. § 1137; ' See, for the fuller explanations, Crim. Crim. Proced. I. § 61, 397, 423, 449, Proced. II. § 315-320. 480, 645, 1010; Stat. Crimes, § 271, 413. * Crim. Proced. II. § 697 et seq. 6 Crim. Proced. I. § 593 et seq. 211 § 403 SPECIFIC OFFENCES. [BOOK III. more or less closely from the English 7 & 8 Geo. 4, c. 29, § 47, now superseded in England by one in slightly different words.^ So much of the former as will suffice for the present illustration is, " If any clerk or servant . . . shall by virtue of such employ- ment receive or take into his possession any chattel, money, or valuable security, for or in the name or on the account of his mas- ter, and shall fraudulently embezzle the same or any part thereof, every such offender shall be deemed to have feloniously stolen the same from his master, although such chattel, money, or security was not received into the possession of such master otherwise than by the actual possession of his clerk, servant," &c. Now, leav- ing out of view the provisions modifying the common-law require- ments for the indictment, and bearing in mind that our statutes differ more or less from this and from one another, and the terms of the particular statute must be covered, we have, — That A, &c. on, &c. at, &c. being then and there the servant l_or clerk, or agent, using the statutory term] of one X, did [now look at the statute and follow its words ; as, for example, if the indictment is on those above q\ioted] by virtue of his said employment receive and take into his posses- sion one gold coin [we are now on the larceny part] of the coinage of the United States of America called an eagle, of the value ^ of ten dollars ^ [or, &c. setting out any other thing or things of which by the statute em- bezzlement may be committed, in precisely the same manner as in an indictment for the larceny thereof],^ [of the property of the said X his master^], for and in the name and on the account of the said X ^ [folio w- 1 Crim. Law, II. § 322, 323. Crim. Proced. II. § 321, 703-705. And 2 The rule in larceny is, that the value English and American statutes, regulating of the stolen thing is required to be alleged the procedure, have relaxed this require- only when it is an element influencing as ment as to " money." of law the punishment. Crim. Proced. II. « The form, thus far, is a little less § 713 ; Stat. Crimes, § 427. Therefore it plethoric than the ordinary English indict- is the same in embezzlement. ment (Crim. Proced. II. § 333), but there is » R. S. of U. S. § 3.511. The reader no just ground to question its sufficiency, obsei-ves that the terms of the above-recited ^ The ownership of the thing embezzled English statute are at this place " any chat- must be alleged. Crim Proced. II. § 320. tel, money, or valuable security." But, be- It is generally done, not here, but in the fore the statutes relaxing the rules for the closing part. This hint may be serviceable indictment were passed, it was held not to in States where such part is not emploj-cd, be sufficiently definite to employ therein and in forms of the otfenee for which it is the word of wide meaning " money " (Crim. nowhere required. Proced. II. ' § 320, 321) ; because such ^ Under the statute in the text and oth- method of allegation would not be ade- ers in like terms, it is not customary and quate in larceny, while yet some want of seems not necessary to allege from whom description, it is not certain how much, the embezzled things were received by the might be excused by the allegation that defendant. But under some of our Ameri- the particulars were to the jurors unknown, can statutes it is necessary. Crim. Pi'oced. 212 CHAP. XXXI.] EMBEZZLEMENT. §403 ing here also the statutory terms], and afterward * did then and there fraud- ulently [and feloniously ^] embezzle [or, &c. using the statutory word or expression *] the same ; and so [returning now to the larceny part] the said A did then and there, in manner and form aforesaid, the said gold coin [or, &c. stating whatever else was specified above, but general terms will here, where they are qualified by "said," suffice], the property of the said X his master, from the said X feloniously steal, take, and cany away ; against the peace, &c. [ante, § 66-69].* II. § 323 a. And then the allegation must be added to those in our formula. 1 This word " afterward " is in some, not all, of the forms before me. I do not deem it essential ; but it renders more dis- tinct the statement of the offence, for which reason I should prefer to use it. 2 This offence being felony, " felonious- ly " should be employed in the indictment. But to insert it only in the concluding part has been adjudged sufficient. Crim. Pro- ced. II. § 323. Still its insertion here also is proper ; and, in States where the larceny conclusion is not appended, this is the special place for it. 8 Crim. Proced. II. § 322. * For forms see Archb. Crim. PI. & Ev. 19th ed. 482, 500, 502, 503, 505, 509; 3 Chit. Crim. Law, 666, 701, 961-971^.992, 993 ; Rex u. Bourne, 4 Went. PI. 42 ; 6 Cox C. C. App. 14, 109 ; 8 lb. App. 20; Reg. V. Harman, 2 Ld. Raym. 1104; Rex u. Johnson, 3 M. & S. 539 ; Rex ?;. Taylor, 3 B. & P. 596, Kuss. & Ry. 63 ; Rex u. Higgins, 2 East, 5 ; Rex v. Whittinghain, 2 Leach, 4th ed. 912 ; Rex v. Aslett, 2 Leach, 4th ed. 958, Russ. & Ry. 67, 1 N. R. 1 ; Rex V. Johnson, 2 Leach, 4 th ed. 1 103 ; Rex u. McGregor, Russ. & Ry. 23, 2 Leach, 4th ed. 932, 3 B. & P. 106 ; Rex v. Bakewell, Russ. & Ry. 35 ; Rex v. Crigh- ton, Russ. & Ry. 62 ; Rex v. Mellish, Russ. & Ry. 80 ; Rex u. Hartley, Russ. & Ry. 139; Rex v. Beechey, Russ. & Ry. 319; Rex V. Burton, 1 Moody, 237 ; Rex v. Net- tleton, 1 Moody, 259 ; Rex i: Murray, 1 Moody, 276 ; Rex v. Hughes, 1 Moody, 370 ; Rex v. Jenson, 1 Moody, 434 ; Reg. V. Adey, 1 Den. C. C. 571 ; Rex v. Haw- kins, 1 Den. C. C. 584 ; Reg. a. Wort- ley, 2 Den. C. C. 333, 5 Cox C. C. 382 ; Reg. V. Goodenough, Dears. 210 ; Reg. v. Moah, Dears. 626, 7 Cox C. C. 60 ; Reg. V. Bayley, Dears. & B. 121 ; s. c. nom. Reg. V. Bailey, 7 Cox C. C. 179; Reg. v. Tite, Leigh & C. 29, 8 Cox C. C. 458; Reg. V. Proud, Leigh & C. 97, 9 Cox C. C. 22; Hog. V. Holman, Leigh & C. 177, 9 Cox C. C. 201 ; Reg. v. Fletcher, Leigh & C. 180, 9 Cox C. C. 189; Reg. v. Massey, Leigh & C. 206, 9 Cox C. C. 234 ; Reg. r. Glover, Leigh & C. 466, 9 Cox C. C. 500; Reg. u. Balls, Law Rep. 1 C. C. 328 ; Reg. V. Cooper, Law Rep. 2 C. C. 123, 125; Reg. V. Foulkes, Law Rep. 2 C. C. 150 ; Reg. V. Tatlock, 2 Q. B. D. 157, 13 Cox C. C. 328 ; Reg. v. Lovell, 2 Moody & R. 236 ; Rex v. Becall, 1 Car. & P. 310 ; Rex «. White, 4 Car. & P. 46 ; Reg. u. Purchase, Car. & M. 617 ; Reg. v. Lanauze, 2 Cox C. C. 362 ; Reg. v. Gomm, 3 Cox C. C. 64 ; Reg. V. Murphy, 4 Cox C. C. 101, 104 ; Reg. V. Taffs, 4 Cox C. C 169 ; Reg. v. WooUey, 4 Cox C. C. 251 ; Reg. u. Woolley, 4 Cox C. C. 255 ; Reg. v. Tyrie, 1 1 Cox C. C. 241 ; Reg. V. Rudge, 13 Cox C. C. 17; Reg. v. Graham, 13 Cox C. C, 57 ; Reg. v. Cosser, 13 Cox C. C. 187 ; Reg. v. Fullagar, 14 Cox C. C. 370 ; Rex v. Gourlay, Jebb, 82 ; Keg. V. Hynes, 13 U. C. Q. B. 194 ; Reg. v. Armstrong, 20 U. C. Q. B. 245. Alabama. — Lowenthal v. The State, 32 Ala. 589 ; Doyle v. The State, 49 Ala. 28 ; Noble V. The State, 59 Ala. 73. Arkansas. — The State v. Hunnicut, 34 Ark. 562. California. — People v. Cohen, 8 Cal. 42 ; People v. Peterson, 9 Cal. 313 ; People V. Garcia, 25 Cal. 531 ; People v. Potter, 35 Cal. 110; People v. Cairillo, 54 Cal. 63. Georgia. —Bulloch v. The State, 10 Ga. 46; Snell v. The State, 50 Ga. 219. Illinois. — Wright !-. People, 61 111. 382 ; Goodhue ;•. People, 94 111. 37. Indiana. — The State v. Hebel, 72 Ind. 361 ; The State v. Tumey, 81 Ind. 559. Icwa. — The State v. Orwig, 24 Iowa, 102; The State v. Foster, 37 Iowa, 404; The State u. Stoller, 38 Iowa, 321 ; The State V. Brandt, 41 Iowa, 593, 595 ; The State V. Parsons, 54 Iowa, 405. Kansas. — The State v. Smith, 13 Kan. 213 §404 SPECIFIC OFFENCES. [book III. § 404. AUegation of Thing embezzled. — As the thing embezzled does not, in the ordinary offence such as is supposed in the last section, pass through the hands of the injured person, and com- monly he never had it in them, to require the pleader to set it out as in the indictment for common-law larceny, especially where it consists of parcels of coins and bank-bills whereof prac- tically men take cognizance only in the sums which they aggre- gate, is almost a denial of justice.^ Therefore statutes to correct this wrong were long ago passed in England, and they have been adopted with us ; and, in both countries since their original enactment, they have been modified and made more liberal. The 274, 277 ; The State v. Graham, 13 Kan. 299 ; The State v. Crosby, 17 Kan. 396. Kentucky. — Johnson v. Commonwealth, 5 Bush, 430. Louisiana. — The State v. Muston, 21 La. An. 442 ; The State v. Thompson, 32 La. An. 796. Maine. — The State v. Hinckley, 38 Maine, 21 ; The State v. Goss, 69 Maine, 22 ; The State u. Haskell, 33 Maine, 127. Massachusetts. — Commonwealth v. Stearns, 2 Met. 343 ; Commonwealtli v. Wyman, 8 Met. 247 ; Commonwealth v. Smart, 6 Gray, 15 ; Commonwealth v. Shepard, 1 Allen, 575 ; Commonwealth v. Concannon, 5 Allen, 502 ; Common- wealth V. Tenney, 97 Mass. 50 ; Com- monwealth V. Butterick, 100 Mass. 1 Commonwealth v. Hussey, 111 Mass. 432 Commonwealth v. Smith, 116 Mass. 40 Commonwealth v. Bennett, 118 Mass. 443 ; Commonwealth v. Doherty, 127 Mass. 20. Michigan. — People v. McKinney, 10 Mich. 54 ; People v. Donald, 48 Mich. 491. Minnesota. — The State v. Munch, 22 Minn. 67, 68 ; The State v. New, 22 Minn. 76 ; The State v. Butler, 26 Minn. 90 ; The State u. Mims, 26 Minn. 183, 18.') ; The State v. Mims, 26 Minn. 191 ; The State V. Ring, 29 Minn. 78, 80. Missouri. — The State o. Mohr, 68 Misso. 303 ; The State v. Heath, 70 Misso. 565, 567. Montana. — United States v. McElroy, 2 Mon. Ter. 494, 497. Nevada. — The State v. Malim, 14 Nev. 288. 214 New Jersey. — The State o. Stimpson, 4 Zab. 9. New York. — People v. Allen, 5 Denio, 76 ; Coats u. People, 4 Parker C. C. 662, 664 ; Bork v. People, 91 N. Y. 5. North Carolina. — The State v. Lanier, 89 N. C. 517. Ohio. — The State v. Newton, 26 Ohio State, 265. Oregon. — The State v. Dale, 8 Oregon, 229. Pennsylvania. — Commonwealth v. Wade, stated 1 Dall. 337 ; Commonwealth V. Newcomer, 13 Wright, Pa. 478; Hutch- ison V. Commonwealth, 1 Norris, Pa. 472 ; Commonwealth v. Leisenring, 11 Philad. 389. Rhode Island. — The State v. Snell, 9 E. 1. 112. Tennessee. — The State v. Cameron, 3 Heisk. 78, 81, 82; The State v. Henry, 1 Lea, 720. Texas. — Riley v. The State, 32 Texas, 763 ; Wise i/. The State, 41 Texas, 139 ; The State u. Longworth, 41 Texas, 162; The State v. Brooks, 42 Texas, 62 ; The State V. McLane, 43 Texas, 404 ; Hender- son V. The State, 1 Texas Ap. 432, 434 ; Griffin V. The State, 4 Texas Ap. 390; Keeller v. The State, 4 Texas Ap. 527 ; Gaddy v. The State, 8 Texas Ap. 127; Reside v. The State, 10 Texas Ap. 675. Wisconsin. — The State v. Campbell, 44 Wis. 529. Wyoming. — McCann t'. United States, 2 Wy. Ter.' 274, 275. United States. — United States v. For- rest, 3 Cranch, C. C. 56 ; United States ». Clark, Crabbe, 584. 1 Crim. Proced. II. § 319. CHAP. XXXI.] EMBEZZLEMENT. § 405 practitioner should carefully note what are the provisions on this topic in his own State. They differ in our States, but largely they are in substance the same as now in England ; namely, — " Where the offence shall relate to any money or any valuable security [the reader perceives that this does not change the rule as to ordinary chattels], it shall be sufficient to allege the embez- zlement, &c. to be of money, without specifying any particular coin or valuable security ; and such allegation, as far as regards the description of the property, shall be sustained if the offender shall be proved to have embezzled, &c. any amount, although the particular species of coin or valuable security of wliich such amount was composed shall not be proved." ^ Under this pro- vision, a common form of the averment in England is, — " Certain money to a large amount, to wit, to the amount of ten pounds " ^ [a circumlocution plainly useless. It is equally good in law, while more simple, to say, " ten pounds in money " *]. With us, under our Constitutions, which, in varying terms, yet in substance, provide that the accused shall be entitled to have the charge against him plainly and fully set out,* there may be doubt whether it is competent for legislation to make punish- able a man. for one thing on the allegation of another, and whether the statute should not therefore be so interpreted ^ as to avoid this. To forestall the objection ® it is proposed that the averment be, — Five hundred dollars in money and such valuable securities as under the statute in that case made and provided may be charged as money. § 405. Three Offences in One Indictment. — The COmmon-law rule in felony, that, however many counts an indictment may contain, it shall charge but one offence,' has been found not to work well in embezzlement. Therefore, as to this offence, it has been variously modified in England and most of our States ; a sufficient explanation whereof is given in " Criminal Pro- cedure." ^ The practitioner should carefully note the statutes on this point in his own State. Now, — 1 24 & 25 Vict. c. 96, § 71. rather a different objection, has been, and 2 Archb. Crim. PI. & Er. 19th ed. 482. no doubt coiTectly, overruled. Crim. Pro- 8 Ante, § 250 and note. ced. II. § 332; Commonwealth v. Bennett, « Crim. Proced. I. § 86-88, 95-1 11. 118 Mass. 443. 6 Stat. Crimes, § 89, 90. ' Crim. Proced. I. § 449-451, 457. 8 The objection in a diiferent form, or 8 ib. II. § 332-334. 215 § 407 SPECIFIC OFFENCES. [BOOK III. §406. Further of Forms. — With these hiuts, directions, and formulas, the pleader, laying his own statutes before him, can, on any of them, draw an indictment which will be sure to be good. If he looks further for a precedent and follows it, he may fail. The welfare of the reader, therefore, would probably be best pro- moted by closing the chapter here. But, as most would not be satisfied with it so, and as the wise can refuse to read further, let us proceed. § 407. Statute differently Expressed. — Some of our American statutes, while in substance copied from the English ones, are differently expressed, and in ways to require somewhat modified interpretations. Thus, " An officer, agent, clerk, or servant of an incorporated company, or a clerk, agent, or servant of a pri- vate person or partnership, except an apprentice or other person under the age of sixteen years, who embezzles or fraudulently converts to his own use, or takes or secretes with intent so to do, without consent of his employer or master, any property of an- other which has come to his possession or is under his care by virtue of such employment, shall be deemed guilty of simple lar- ceny." 1 And this is accompanied by the provision, that, where the thing embezzled, &c. is " bullion, money, notes, bank-notes, checks, drafts, bills of exchange, obligations, or other securities for money, ... it shall be sufficient to allege generally in the indictment an embezzlement, &c. of money to a certain amount," &c. substantially as in the English statute.^ Upon this it will be a good form to say, — That A, &c. on, &c. at, &c. being the clerk and agent ' of one X, and not under the age of sixteen years ^ and not an apprentice, did then and there, by virtue of his employment as such clerk and agent, have under his care, of the property of the said X l_or, of one Y],^ one sewing-machine of the value of thirty dollars," and five hundred dollars in money [or money 1 Mass. Pub. Stats, c. 203, § 40. Com- wealth v. Smith, 116 Mass. 40, though the pare with ante, § 403. point is not adjudged. 2 Ante, § 404 ; Mass. Pub. Stats, c. 203, ^ xhe pleader will follow his choice § 44. whether or not to allege the ownership 8 Or, "clerk" alone will suffice, or here; as, see ante, § 403 and note. And "agent" alone, or " servant" alone. the terms of this statute seem to imply * As I interpret the statute, this form that such ownership may be in a third of the negative completely covers the ex- person as well as in the employer or ception. It is not necessary to say " not master. an apprentice." Crim. Proced. I. § 641 ; 6 j^„ article like this, not being within Stat. Crimes, § 1042. But a different the statute permitting a more general alle- meaning seems to be implied in Common- gation, must be described as in the com- 216 CHAP. XXXI.] EMBEZZLEMENT. §408 to the amount of five hundred dollars ^], consisting of money, bank-notes, and checks,^ here alleged as money within the provisions of the statute in that case made and provided,^ and did afterward,* then and there, without the consent of the said X, feloniously embezzle the same, and fraudulently and feloniously convert the same to his own use ; ^ and so ' the said A did then and there, in manner and form aforesaid, the said sewing-machine and the said money, of the property of the said X [or of the said Y], [from the said X'], feloniously steal, take, and carry away; against the peace, &c.* § 408. Same in Statutory Form. — On a statute substantially identical with the one copied into the last section, the following form, which legislation had declared to be sufficient, was sus- tained by the court : — That, before the finding of this indictment, A, &c. being the agent or clerk of X, the said X not being an apprentice, or under the age of eighteen years, embezzled, or fraudulently converted to his own use, money to about the amount of eighteen hundred dollars, and a bill of exchange to about the amount of eighteen hundred dollars, which came into his pos- session by virtue of his employment ; against the peace, &c.° mon-law indictment for larceny. Ante, § 401-404. 1 This form more exactly covers the statutory words, but I think the other means the same thing. Some might choose to say "amount and value," but it would be difficult to assign any good reason for this. ^ See, as to this, ante, § 404. I should use here only such of the statutory terms as are applicable to the facts to be proVed. ^ If the pleader is framing his indict- ment with reference to this particular stat- ute, there is a part of it, not given in the text, to which I wish to call his attention. It goes on, very singularly, to provide, that, " on the trial, evidence may be given of any such embezzlement, &c. cammiited within six months next after ih& time stated in the indictment," &c. I shall not undertake to interpret this. Does it mean that, for the prosecuting officer to avail himself of this provision, he must lay the offence as committed before it transpired in fact ■? * As to this " afterward," see ante, § 403 and note. 5 This latter clause, " fraudulently," &c. is, of course, not necessary ; yet I should prefer to insert it. 8 There are forms which add here, in varying terms, that by this means the de- fendant became guilty of larceny. Of which offence, the reader perceives, the statute says he is guilty, — a mere conclu- sion of law. No mere conclusion of law need be averred. Crim. Proced. I. § 51.5. ' The statute of 7 & 8 Geo. 4, c. 29, § 47, on which the foregoing formula is drawn, provides that the person embezzling the property " shall be deemed to have fe- loniously stolen the same /com his master." Hence the words " from the said X " were at this place used in the formula. Ante, § 403. But the terms of the statute on which we are here proceeding are, " shall be deemed guilty of simple larceny." And the indictment for simple larceny does not contain the words " from the said X." Crim. Proced. II. § 697. Therefore they need not be used in the presen t form. ^ And see the places cited ante, § 403, note; and particularly, Commonwealth v. Bennett, 118 Mass. 443; Commonwealth V. Smith, 115 Mass. 40 ; Commonwealth v. Stearns, 2 Met. 343 ; Johnson v. Common- wealth, 5 Bush, 430. 9 Lowenthal v. The State, 32 Ala. 589. 217 § 409 SPECIFIC OFFENCES. [BOOK IIL § 409. By Public Officers. — Embezzlements by public officers are punishable under statutes which differ in the respective States, and are not always quite the same in terms with those against private embezzlements. No general form of the indict- ment for all is possible. A statute now before the writer makes it a penitentiary offence " if any officer of the government, who is by law a receiver or depositary of public money, or any clerk or other person employed about the office of such officer, shall fraudulently take or misapply or convert to his own use any part of such public money, or secrete the same with intent to take, misapply, or convert to his own use, or shall pay or deliver the same to any person knowing that he is not entitled to receive it." 1 There is nothing here about the offence being larceny ; and as, if there were, it would still be contrary to just principle to compel the pleader to weave into the indictment on the statute the larceny allegations,^ a fortiori they are not required on this statute. It has been adjudged good to say, — That on, &c. at, &c. A, &c. who was then and there an officer of the government, to wit, a deputy sheriff in and for the said county of M, and by virtue of his said office then and there by law a receiver of public money, to wit, a collector of taxes assessed in said county of M, and author- ized to collect and receive the moneys due the government of the State, and then and there acting in said office, did then and there wickedly, wil- fully, unlawfully, feloniously, and fraudulently tak% and misapply, and convert to his own use, a part of the money entrusted to him as aforesaid, to wit, the sum of one thousand dollars, money collected by hiA as afore- said for the State of , from the citizens of M county, for the year [specifying it], and also large sums of said taxes for that year to the grand jurors unknown in amount, he the said A then and there well knowing that he was not entitled to the same ; against the peace, &c.° 1 The State v. Brooks, 42 Texas, 62. hare been thus specifically described. The ^ Crim. Proced. II. § 318-320. learned judge continues: "In transactions 8 The State t. Brooks, supra. I have such as are now under consideration, rnn- not deemed it necessary to consider what ning through a long period of time, and abridgments might be made of these alle- involving large sums of money, received gations. In The State v. Smith, 13 Kan. from a whole community, and being con- 274, 277, which was an information against stantly changed by the necessities of the a county treasurer, the form is quite simi- oiBce, such a description of the funds is lar, and it was adjudged adequate. "The impossible; and, if necessary to be averred, information," said Kingman, C. J., deliv- must be proven; and, therefore, is an ef- ering the opinion of the court, "charges fectual bar to all prosecutions under the specifically to what fund each portion of law." After speaking of the rule of the the total charged belongs, but does not de- English courts under differently-worded scribe the kinds of moneys embezzled." statutes, he proceeds : " We are not forced And counsel had urged that they should to discuss the authorities on this point, for 218 CHAP, XXXI.] EMBEZZLEMENT. §411 § 410. Not Larceny. — The pleader, therefore, should carry in his mind the distinction between those embezzlements which the statute does not make larceny, and those which it does, — a dis- tinction not always present to the thoughts of counsel and judges as disclosed by the cases. There is no reason why, when the statute is silent as to larceny, the indictment should be drawn otherwise than after the ordinary rules for indictments on stat- utes.^ With this distinction in the mind of the pleader, and the foregoing specimens of the indictment before him, — §411. other Forms — may be readily constructed as needed. It would be little else than waste of space to swell this chapter with them. Yet references to some places where other particular forms appear will be useful. ^ the change in the law necessarily compels such construction of its provisions as will give it effect. And we do not think that the reason of those decisions, when applied to the agent of private persons who can at all times scrutinize the acts of those in their employ, apply to a public oflScer. The public at large can exercise no constant su- pervision over his acts, nor can it, like a private individual, assume the direct cus- tody of the funds at any moment. The proper authorities may require him to account, may examine the funds in his possession, but in the next hour all these funds may be changed, long before the act of embezzlement is done, or the intent is formed. To suppose that the legislature, when they added the large class of public ofScers to those who might be amenable to the law for the offence of embezzlement, in- tended to require proof of the identity of the money embezzled, or a description of it, and from whom it was received, is to infer that they intended to enact a law the enforcement of which would be impossible. It will not do to permit an artificial rule of pleading, having a doubtful foundation in reason, to lead to such a disastrous result. This exact point has been decided in Michi- gan in a very able opinion (People v. Mc- Kinney, 10 Mich. 54), and we but follow that decision in holding that the informa- tion is not defective in not describing pre- cisely the funds embezzled." p. 295, 296. For other forms of the indictment for em- bezzlement by a public officer, under vari- ous statutes, see Bork u. People, 91 N. Y. 5; The State v. Hebel, 72 Ind. 361 ; Peo. pie V. McKinney, 10 Mich. 54; The State V. Graham, 13 Kan. 299 ; The State v. Parsons, 54 Iowa, 405 ; The State v. Brandt, 41 Iowa, 593, 595 ; The State v. Goss, 69 Maine, 22 ; The State v. Ring, 29 Minn. 78, 80; Eeg. v. Moah, Dears. 626, 7 Cox C. C. 60. 1 For the rules see Crim. Proced. I. § 593 et seq. 2 For embezzlement by a common car- rier, The State v. Hinckley, 38 Maine, 21. Embezzlement of promissory notes deliv- ered to the defendant to keep and return. Commonwealth i\ Hussey, 111 Mass. 432. Against a bill broker for embezzling a bill delivered to be discounted, 3 Chit. Crim. Law, 967. Note entrusted for special pur- pose, Reg. V. Hynes, 13 U. C. Q. B. 194. Bonds, Commonwealth v. Tenney, 97 Mass. 50. Bank-book, Commonwealth v. Doher- ty, 127 Mass. -20. Exchequer bills, 3 Chit. Crim Law, 968. Various securities, Reg. V. Cooper, Law Rep. 2 C. C. 123, 125; 3 Chit. Crim. Law, 965, 966. Funds of a benefit society, Reg. v. Taffs, 4 Cox C. C. 169 ; Reg. v. Woolley, 4 Cox C. C. 251 ; Reg. V. Woolley, 4 Cox C. C. 255 ; Reg. v. Proud, Leigh & C. 97, 9 Cox C. C. 22 ; Reg. V. Tyrie, 11 Cox C. C. 241. By a bank officer. Commonwealth v. Shepard, 1 Al- len, 575. Against trustee of savings bank, Reg. o. Fletcher, Leigh & C. 180, 9 Cox C. C. 189. Against servant. People t. Garcia, 25 Cal. 531. Guardian, The State V. Henry, 1 Lea, 720. Trustee, Reg. v. FuUagar, 14 Cox C. C. 370. Bailee of 219 § 412 SPECIFIC OFFENCES. [BOOK III. § 412. Solicitations — and other attempts at embezzlement are, of course, indictable under the general law of attempt. And we have seen what are the proper forms for the indict- ment.^ It has been adjudged good for the solicitation to say, — That A, &c. on, &c. at, &c. " did falsely, wickedly, and unlawfully so- licit and incite one X, a servant of Y, to take, embezzle, and steal a quan- tity of twist, of the value of, &c. of the goods and chattels of his master Y aforesaid ; " against the peace, &c.^ coin and gold-dust, People v. Peterson, 111. 382 ; Reg. v. Harman, 2 Ld. Raym. 9 Cal. 313. Warehouseman embezzling 1104. grain, The StJite v. StoUer, 38 Iowa, i Ante, § 100-107, 110, 111. 321. Commission merchant embezzling 2 jjgx d. Higgins, 2 East, 5. For other proceeds of sale, Wright v. People, 61 forms, see 3 Chit. Crim. Law, 992, 993. For EMBRACERY, see Obstructing Jdstice, &c. ENDEAVORS, see ante, § 100-112. ENGROSSING, see Crim. Proeed. II. § 348-350. ENTICING, see ante, § 105-107, 114, 116, 117. ENTRY, FORCIBLE, see Forcible Ektky, &c, ESCAPE, see Prison Breach, &c. ESTRAY ANIMALS, see ante, § 176. EXPOSING DEPENDENT PERSON, see Neglects. EXPOSURE OF PERSON, see Nuisance. 220 CHAP. XXXII.] EXTORTION. § 415 CHAPTER XXXII. EXTOETION.^ § 413. Extortion — is a species of Malfeasance in Office ; and, as such, it might well be relegated to the chapter further on. But, because it is commonly treated as a separate offence, the pleader will be better served by giving its forms here, where he will first look for them. § 414. Common Form — (Constable). — The following is a com- mon English form for extortion by a constable : — That A, &c. on, &c. at, &c. being then and there one of the constables of the said parish,^ did take and arrest one X, by color of a certain war- rant, commonly called a bench warrant, which he the said A then and there alleged to be in his possession ; and that the said A afterwards, and whilst the said X so remained in his custody as aforesaid [to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid '], unlawfully, corruptly, deceitfully, extorsively, and by color of his said office, did extort, receive, and take of and from the said X the sum of five shillings, as and for a fee due to him the said A as such constable as afore- said, for tfie obtaining and discharging of the said warrant, as he the said A then and there alleged ; whereas, in truth and in fact, no fee whatever was then due from the said X to the said A, as such constable as aforesaid in that behalf; [in contempt of our said Lady the Queen and her laws, to the evil and pernicious example of all others in the like case offending,* and] against the peace, &o.* § 415. Formula. — The indictment will vary with the office, with the special facts ; and, when on a statute, with its terms, ' 1 For the direct expositions of this ^ j have omitted from this introduction offence, with the pleading, practice, and a few useless words. evidence, see Crim. Law, 11. § 390-408; ^ " Then and there " would be an ample Crim. Proced. II. § 357-364. Incidental, substitute for all this matter in brackets. Crira. Law, I. § 573, 587, 715 ; Crim. Pro- * Needless. Ante, § 48; Crim. Proced. ced. I § 469 ; Stat. Crimes, § 159, note, L § 647. 171, note, 217, 346, note. And consult ^ Archb. Crim. PI. & Ev. 10th ed. 581, Malfeasance and Non-feasance in 19th ed. 891. Office — Thkeatening Letteks, &c. 221 § 416 SPECIFIC OFFENCES. [bOOK IU. An outline of its allegations is given in " Criminal Procedure." ^ The formula may be, — That A, &c. [ante, § 74-77], on, &c. at, &c. [ante, § 80], being a dep- uty of M the sheriff of said county [^or, &c. setting out the office according to the fact], and then and there having taken into and keeping in his cus- tody as such deputy sheriff the body of one X [ante, § 78, 79] by him the said A arrested and held under and by virtue of, &c. [specifying the au- thority ; or, in other apt terms, stating according to the fact some condi- tion of things which gave opportunity for the extortion and rendered it legally possible], did corruptly, deceitfully, fraudulently, extorsively, and by color of his said office demand and receive of and from the said X twenty dollars, as and for a fee due him the said A from the said X for, &c. [saying for what] ; whereas, in truth and in fact, there was then and there no fee due the said A from the said X [or, the fee due to the said A from the said X was, for the services aforesaid, or otherwise specifying for what,'' nine dollars and fifty-one cents and no more] ; against the peace, &c. [ante, § 65-69].» § 416. Upon Statute — (County Treasurer). — The indictment upon the Indiana statute may be, for example, — That A, &c. on, &c. at, &c. being the treasurer of the said county of M, did then and there corruptly, unlawfully, extorsively, and by color of his said office eitort, demand, and receive of and from one X thirty-five cents as and for a fee due from the said X to him the said A as such treasurer, for making distress and sale of the said X's goods and chattels in payment ^ Crim. Proced. II. § 357. Montana. — Territory v. McElroy, 1 2 Crim. Proced. II. § 358, 359. Mon. Ter. 86. 8 For other forms see 2 Cliit. Crim. New Hampshire. — The State v. An- Law, 293-301, 550; 4 Went. PI. 146; drews, 51 N. H. 582. Rex V. Norton, 4 Went. PI. 147 ; Eex v. New Jersey. — Halsey v. The State, 1 Bronghton, Trem. P. C. Ill ; Rex v. Southard, 324; The State v. Maires, 4 Johnson, Trem. P. C. 119; Rex v. New- Vroom, 142. man, Trem. P. C. 123 ; Reg. v. Atkinson, Oregon. — The State v. Perham, 4 Ore- 11 Mod. 79 ; Reg. o. Badger, -6 Ellis & B. gon, 188. 137. Pennsylvania. — Commonwealth v. Arkansas. — Leeman v. The State, 35 Evans, 13 S. & R. 426. Ark. 438. Tennessee. — The State v. Fields, Mart. Georgia. — Oliveira v. The State, 45 Ga. & Terg. 137. 555. Texas. — Smith v. The State, 10 Texas Indiana. — The State v. Coggswell, 3 Ap. 413. Blackf. 54 ; Emory v. The State, 6 Blackf. Wyoming. — McCarthy v. Territory, I 106 ; The State v. Moore, 1 Ind. 548; The Wy. Ter. 311. State V. Barton, 3 Ind. 93. United States. — United States u. Marks, Massachusetts. — Commonwealth v. 2 Abb. U. S. 531, 536; United States u. Shed, I Mass. 227 ; Commonwealth v. More, 3 Cranch, 159 ; United States v. Cony, 2 Mass. 523. Jackson, 3 Saw. 59. Minnesota. — The State v. Brown, 12 Minn. 490. 222 CHAP. XXXII.] EXTORTION. § 417 of taxes by the said X owing to the State and county ; whereas, in truth and in fact, no distress and no sale of such goods and chattels for such purpose had been made, and no fee was then due from the said X to the said A ; against the peace, &C.'' § 417. Other Forms — may be readily constructed from the foregoing, or found in the places referred to in the note to the formula.^ 1 The State v. Burton, 3 Ind. 93. And compare with Reg. v. Atkinson, 1 1 Mod. 79 ; 2 Chit. Crim. Law, 300. 2 Ante, § 415. For FALSE IMPRISONMENT, see Kidnapping, &c. FALSE NEWS, see ante, § 310 ; Crim. Law, I. § 472-478, 540. FALSE PERSONATION, see False Pketencbs. 223 § 419 SPECIFIC OFFENCES. [BOOK III. CHAPTER XXXIII. FALSE PKBTENCBS.^ § 418. Not Complicated — (What Forms needed). — The of- fence of Cheating by False Pretences, as distinguished from " Cheats at Comnaon Law," is purely statutory. But the stat- utes, while presenting verbal differences, are nearly uniform in substance ; the elements of the wrong are simple and few; and, though the facts of now and then a case can be set out only in many words, no two cases of this sort are identical, and no help can come to the pleader from preserving for him in a book of precedents what he will never have occasion to use. Or, if the facts should repeat themselves, he could better write them down without the form than with it. So that the outlines of the in- dictment, showing the allegations which remain the same through the infinite shiftings of facts, are all that will be required for this chapter. The girl who copies her correspondence from a " Com- plete Letter-writer " is wise in comparison with the pleader who would use more were it furnished him. § 419. How the Indictment. — The substantial allegations are, that the defendant employed, with another person, such and such false pretences, which are specified; that they were false ;^ that he knew them to be false, and this whether^ the statutory words 1 For the direct einciclations of this of- must allege the defendant's knowledge of fence, with the pleading, practice, and evi- the falsity of the pretences. If, primn/ocie, dence, see Crim. Law, II. § 409-488 ; Crim. from the facts set out in it, knowledge may Proced. II. § 162-198. Incidental, Crim. he presumed, does it not disclose a prima Law, I. § 110, 2.'57, 369, 438, 468, . 571, 586, facie offence, though it does not say in 587, 633, 686, 758, 815; II. § 152-155, words that the defendant knew? There 583; Crim. Proced. I. § 53,397,449,468; are, in the books, forms assumed to he good, Stat, Crimes, § 133, 134, 231. And com- not in terms averring knowledge. For ex- pare with Cheats at Common Law. ample, Reg. v. Bull, 13 Cox C. C. 608; 2 Rex V. Perrott, 2 M. & S. 379 ; Crim. The State r. Call, 48 N. H. 126 ; The State Law, II. § 471 . V. Boon, 4 Jones, N. C. 463. Still, the ju- ^ Crim. Prooed. II. § 172. I am not dicious pleader will not intentionally, in certain of the universality of the proposi- any case, omit this allegation, tion, that, for an indictment to be good, it 224 CHAP. XXXIII.] FALSE PRETENCES. § 420 are so or not ; that he got of aiiotlier certain things of value, which must be particularized, and must be within the statutory- inhibition ; and that the pretences were the moving cause where- by the things were obtained. The phraseology of the statute must be followed, as in other indictments on statutes ; and, where the offence is felony, the word " feloniously " should be used, whether it is in the statute or not.^ §420. Formula. — The allegations which, when not coverhig the statutory terms, must be modified until they do cover them, may be, — That A, &c. [ante, § 74-77], on, &c. at, &c. [ante, § 80], [feloniously devising and intending to cheat and defraud one X^], did then and there falsely and feloniously * pretend [look at the statute and follow its words ^] to the said X, that one M was desirous of borrowing of him the said X a certain gun, and that he the said A was a messenger from said M author- ized and required to bring it to the said M ^ [or, &c. setting out any other false pretence acccording to the special fact, and adding, coupled by and, as many other not-repugnant false pretences as the pleader chooses °] ; by means of which false pretences he the said A did then and there fraudu- lently [and feloniously] obtain of the said X, of the property [or, goods and chattels, &c. as the expression is in the statute] of the said X,' the said gun [or, &c. setting out, in like manner, any other things obtained *], of the value of, &c. ; ' whereas, in truth and in fact, the said M was not then desirous of borrowing the said or" any other gun of the said X, and the said X was not then and there a messenger from said M authorized and required to bring it to him [or, whatever the false pretences were, negative them after this manner "], all of which the said X then and there well knew; against the peace, &c. [ante, § 65-69].^^ 1 Crim.Proced. II. § 163, 165, 168, 172, § 173; The State v. Lathrop, 15 Vt. 173, 175, 176, 179-182. 279. 2 Necessary only if the expression is in ^ Crim. Proced. II. § 173 ; post, § 423 the statute, in wliich case follow the statu- and note. tory terms. Crim.Proced. 11. § 182; Ham- 'The allegation of value is necessary ilton V. Reg. 2 Cox C. C. 11, 16. only under a statute making value an ele- 3 " Feloniously " to be used only if in ment in the punishment. Crim. Proced. the statute, or if the offence is felony. II. § 177. Ante, § 206, note. i° " Or,'' instead of " and," proper in * Por example, 30 Geo. 2, c. 24, § 1, negative averments. Ante, § 97, note, and had also the words " knowingly and de- the places there referred to. signedly." On such a statute the allega- ii Further as to which see Crim. Pro- tion should be "did knowingly and design- ced. II. § 168. edly, falsely," &c. ^'^ Por forms see Archb. Crim. PI. & Ev. 6 Crim. Proced. II. § 165, 173, 174, 177. 10th ed. 289, 19th ed. 513, .532 ; 3 Chit. 6 Ante, § 19-21 ; Crim. Proced. II. Crim. Law, 1003-1021 ; 4 lb. 2 ; 4 Went. § 170, 171. PI. 55, 78, 79 ; 2 Cox C. C. App. 6 : 3 lb. ' The allegation of ownership, as in App. 49; 4 lb. 3, 33, 41, 45 ; 5 Ih. App. larceny, is essential. Crim. Proced. II. 51, 53, 79, 90; 6 lb. App. 46-62, 94, 138, 15 225 §421 SPECIFIC OFFENCES. [book III. § 421. Authorized by Statute. — Legislative ingenuity has not devised a form for alleging this offence more compact or other- 157; 7 lb. App. 24; 8 lb. App. 17; 11 lb. App. 11 ; Rex v. Story, Russ. & Ey. 81 ; Rex v. Freeth, Russ. & Ry. 127 ; Rex V. Hill, Russ. & Ry. 190 ; Rex v. Tannet, Russ. & Ey. 351 ; Rex v. Flint, Russ. & Ey. 460 ; Rex v. Goodhall, Russ. & Ry. 461 ; Rex v. Yates, 1 Moody, 170; Rex V. Douglas, 1 Moody, 462 ; Rex v. Parker, 2 Moody, 1 ; Reg. o. Henderson, 2 Moody, 192, Car. & M. 328 ; Reg. o. Johnston, 2 Moody, 254 ; Reg. v. Abbott, 1 Den. C. C. 273, 2 Car. & K. 630, 2 Cox C. C. 430 ; Reg. v. Brown, I Den. C. C. 291, 299, 2 Car. & K. 504, 3 Cox C. C. 127 ; Reg.w. Leonard, 1 Den. C. C. 304, 2 Car. & K. 514, 3 Cox C. C. 284 ; Reg. v. Boulton, 1 Den. C. C. 508, 2 Car. & K. 917, 3 Cox C. C. 576; Reg. v. Coulson, 1 Den. C. C. 592, 4 Cox C. C. 227 ; Eeg. v. Kealey, 2 Den. C. C. 68, 70, 5 Cox C. C. 193; Reg. v. Welman, Dears. 188, 6 Cox C. C. 153 ; Reg. v. Garrett, Dears. 232 ; Eeg. 7). Hewgill, Dears. 315 ; Reg. v. Eagle- ton, Dears. 376, 515 ; Eeg. v. Archer, Dears. 449, 6 Cox C. C. 515; Eeg. v. Gates, Dears. 459, 6 Cox C. C. 540 ; Reg. V. Burgon, Dears. & B. 11, 14; Eeg. v. Gardner, Dears. & B. 40 ; Eeg. t. Keighley, Dears. & B. 145, 7 Cox C. C. 217 ; Reg. v. Mills, Dears. & B. 205, 7 Cox C. C. 263 ; Eeg. V. Danger, Dears. & B. 307, 309, 7 Cox C. C. 303 ; Eeg. v. Watson, Dears. & B. 348, 7 Cox C. C. 364, 369 ; Reg. v. Godfrey, Dears. & B. 426, 7 Cox C C. 392 ; Eeg. i;. Fry, Dears. & B. 449, 7 Cox C. C. 394 ; Eeg. !•. West, Dears. & B. 575, 8 Cox C. C. 12 ; Eeg. v. Butcher, Bell C. C. 6, 8 Cox C. C. 77 ; Reg. v. Goss, Bell C. C. 208, 8 Cox C. C. 262 ; Reg. v. Burnsides, Bell C. C. 282, 8 Cox C. C. 370 ; Reg. r. Moseley, Leigh & C. 92 ; Reg. v. Kerrigan, Leigh & C. 383, 9 Cox C. C. 441 ; Reg. v. Lee, Leigh & C. 309, 9 Cox C. C. 304 ; Eeg. V. Lee, Leigh & C. 418, 9 Cox C. C. 460 ; Eeg, v. Henshaw, Leigh & C. 444 ; Eeg. V. Bulmer, Leigh & C. 476, 9 Cox C. C. 492 ; Eeg. v. Giles, Leigh & C. 502, 10 Cox C. C 44; Eeg. v. Naylor, Law Rep. 1 C. C. 4, 10 Cox C. C. 149; Eeg. u. Martin, Law Rep. 1 C. C. 56, 10 Cox C. C. 383 ; Reg. v. Hazelton, Law Rep. 2 C. C. 134, 13 Cox C. C. 1 ; Rex v. Airey, 2 East, 30 ; Rex v. Perrott, 2 M. & S, 379 ; 226 Eeg. V. Wickham, 10 A. & E. 34 ; Hamil- ton V. Eeg. 9 Q. B. 271, 2 Cox C. C. 11 (same form in Reg. v. Hamilton, 1 Cox C. C. 244, 245) ; Reg. v. Bowen, 13 Q. B. 790 ; Sill u. Eeg. 1 Ellis & B. 553, Dears. 132; Reg. o. Cooper, 1 Q. B. D. 19, 13 Cox C. C. 123 ; Reg. v. Foster, 2 Q. B. D. 301, 13 Cox C. C. 393 ; Reg. v. Cooper, 2 Q. B. D. 510, 13 Cox C. C. 617 ; Rex i,. Douglass, 1 Camp. 212 ; Rex v. Plestow, 1 Camp. 494 ; Eex v. Evans, 5 Car. & P. 553 ; Rex v. Eeed, 7 Car. & P. 848 ; Reg. v. TuUy, 9 Car. & P. 227 ; Reg. v. Copeland, Car. & M. 516; Eeg. v. Bloomfield, Car. & M. 537 ; Reg. v Philpotts, 1 Car. & K. 112; Reg. ^. Dent, 1 Car. & IC. 249, 251, note ; Eeg. v. Cooke, 1 Fost. & F. 64 ; Reg. V. Franklin, 4 Fost. & F. 94 ; Keg. v. Ward, I Cox C. C. 101 ; Reg. v. Gruby, 1 Cox C. C. 249 ; Reg.!;. Molony,2 Cox C. C. 171 ; Eeg. I'. Bates, 3 Cox C. C. 201 ; Reg. v. Brown, 2 Cox C. C. 348 ; Reg. v. Bowen, 3 Cox C. C. 483 ; Reg. v. Baroisse, 5 Cox C. C. 559 ; Eeg. V. Bailey, 6 Cox C. C. 29 ; Reg. v. Partridge, C Cox C. C. 182 ; Reg. v. Smith, 6 Cox C. C 314 ; Eeg. v. Jones, 6 Cox C. C. 467 ; Latham v. Reg. 9 Cox C. C. 516 ; Reg. v. Carter, 10 Cox C. C. 645; Reg. V. Hunter, 10 Cox C. C. 642 ; Reg. V. Steels, 1 1 Cox C. C. 5 ; Reg. v. Davis, II Cox C. C. 181 ; Eeg. o. Garland, 11 Cox C. C. 224, 225; Eeg. u. Meakin, 11 Cox C. C. 270 ; Reg. v. Lake, 1 1 Cox C. C. 333; Eeg v. Hensler, 11 Cox C. C. 570; Eeg. .■. Howarth, 11 Cox C. C. 588 ; Reg. V. James, 12 Cox C. C. 127 ; Reg. ii. Eng- lish, 12 Cox C. C. 171 ; Reg. v. Lince, 12 Cox C. C. 451 ; Reg. t: John, 13 Cox C. C. 100, 107; Reg. V. Murphy, 13 Cox C. C. 298 ; Reg. v. Bull, 13 Cox C. C. 608; Reg. v. Knieht, 14 Cox C. C. 31; Reg. K. Kellehcr, 14 Cox C. C. 48; Reg. V. Jarman, 14 Cox 0. C. Ill ; Reg. v. Lamer, 14 Cox C. C. 497 ; Rex v. Keefe, Jebb, 6 ; Rex u. Eitzmaurice, Jebb, 29 ; Eeg. V. Davis, 18 U. C. Q. B. 180 ; Reg. V. Campbell, 18 U. C. Q. B. 413 ; Reg. v. Dessauer, 21 U. C. Q. B. 231 ; Reg. o. McQuarrie, 22 U. C. Q. B. 600. Alabama. — Oliver v. The State, 37 Ala. 134 ; Clay v. The State, 43 Ala. 350 ; Lang- ford (I. The State, 45 Ala. 26 ; Edwards v. The State, 49 Ala. 334 ; Franklin v. The CHAP. XXXIII.] FALSE PRETENCES. §421 wise better than the common-law rules present. Following the outline provided in the Alabama code we have, — State, 52 Ala. 414 ; Colly v. The State, 55 Ala. 85 ; Sandy v. The State, 60 Ala. 58 ; Daniel v. The State, 61 Ala. 4 ; Mack v. The State, 63 Ala. 138. Arkansas. — The State v. Hand, 1 Eng. 165 ; MeKenzie o. The State, 6 Eng. 594; Burrow v. The State, 7 Eng. 65 ; The State V. Vandlmark, 35 Ark. 396 ; John- son V. The State, 36 Ark. 242 ; Treadaway V. The State, 37 Ark. 443. Connecticut. — The State v. Penley, 27 Conn. 587 ; The State v. Pritchard, 35 Conn. 319 ; The State t>. Jackson, 39 Conn. 229. Florida. — Hamilton u. The State, 1 6 Fla. 288 ; Ladd v. The State, 17 Fla. 215, 217. Illinois. — Thomson v. People, 24 III. 60 ; Morton ti. People, 47 111. 468 Rain- forth V. People, 61 111. 365. Indiana. — The State v. Smith, 8 Blackf. 489, 490; The State v. Magee, 11 Ind. 154; The State v. Orvis, 13 Ind. 569 ; The State v. Pryor, 30 Ind. 350 ; Maley V. The State, 31 Ind. 192 ; Todd v. The State, 31 Ind. 514, 516; Leobold v. The State, 33 Ind. 484 ; The State v. Locke, 35 Ind. 419 ; Halley v. The State, 43 Ind. 509 ; Jones v. The State, 50 Ind. 473 ; Keller w. The State, 51 Ind. Ill ; Clifford V. The State, 56 Ind. 245, 246 ; The State V. Timmons, 58 Ind. 98 ; Bonnell v. The State, 64 Ind. 498 ; The State v. Snyder, 66 Ind. 203 Perkins v. The State, 67 Ind. 270 ; Miller v. The State, 73 Ind. 88 ; Shaffer v. The State, 82 Ind. 221, 222; Strong V. The State, 86 Ind. 208. Iowa. — The State v. Webb, 26 Iowa, 262; The State v. Dowe, 27 Iowa, 273; The State v. Joaquin, 43 Iowa, 131 ; The State V. Anderson, 47 Iowa, 142 ; The State V. Quinn, 47 Iowa, 368 ; The State V. McConkey, 49 Iowa, 499 ; The State v. House, 55 Iowa, 466 ; The State v. Mont- gomery, 56 Iowa, 195. Kansas. — The State v. Snyder, 20 Kan. 306 ; The State v. Cowdin, 28 Kan. 269. Kentucky. — Cojnmonwealth v. Haughey, 3 Met. Ky. 223 ; Glackan v. Common- wealth, 3 Met. Ky. 232. Maine. — The State v. Mills, 17 Maine, 211 ; The State v. Philbrick, 31 Maine, 401 ; The State v. Paul, 69 Maine, 215 ; The State v. Hill, 72 Maine, 238. Massachusetts. — Commonwealth u. Wilgus, 4 Pick. 177 ; Commonwealth t-. Call, 21 Pick. 515 ; Commonwealth u. Stone, 4 Met. 43 ; Commonwealth v. Har- ley, 7 Met. 462 ; Commonwealth v. Strain, 10 Met. 521 ; Commonwealth v. Hulbert, 12 Met. 446; Commonwealth v. Davidson, I Cush. 33 ; Commonwealth v. Morrill, 8 Cush. 571 ; Commonwealth «. Nason, 9 Gray, 125 ; Commonwealth v. Lannan, 1 Allen, 590 ; Commonwealth v. Goddard, 4 Allen, 312; Commonwealth tf. Jeffries, 7 Allen, 548 ; Commonwealth v. Lincoln, 11 Allen, 233; Commonwealth u. Norton, II Allen, 266 ; Jeffries v. Commonwealth, 12 Allen, 145 ; Commonwealth v. Con- nolly, 97 Mass, 591 ; Commonwealth v. Hooper, 104 Mass. 549 ; Commonwealth V. Dean, 110 Mass. 64 ; Commonwealth v. Hutchison, 114 Mass. 325 : Commonwealth V. Coe, 115 Mass. 481 ; Commonwealth v. Parmenter, 121 Mass. 354; Commonwealth ». Ashton, 125 Mass 384; Commonwealth u. Stevenson, 127 Mass. 446 ; Common- wealth V. Harkins, 128 Mass. 79 ; Com- monwealth V. Howe, 132 Mass. 250. Michigan. — People v. Winslow, 39 Mich. 505 ; People v. Cline, 44 Mich. 290 ; Higler ?;. People, 44 Mich. 299, 300, note ; People V. Pray, 1 Mich. N. P. 69 ; People V. Sumner, 1 Mich. N. P. 214. Minnesota. — The State v. Benson, 28 Minn. 424 ; The State v. Gray, 29 Minn. 142, Mississippi. — Bowler i>. The State, 41 Missis. 570. Missouri. — The State o. Evers,, 49 Misso. 542 ; The State u. Saunders, 63 Misso. 482, 483 ; The State v. Vorback, 66 Misso, 168, 171 ; The State v. Bradley, 68 Misso. 140; The State v. Smallwood, 68 Misso. 192; The State ,,. Fancher, 71 Misso. 460 ; The State v. Porter, 75 Misso. 171, 172. New Hampshire. — The State v. Call, 48 N. H. 126. New Jersey. — The State v. Tomlin, 5 Dutcher, 13 ; The State v. Blauvelt, 9 Vroom, 306. New York. — People v. Stone, 9 Wend. 181 ; People v. Gates, 13 Wend. 311 ; Peo- ple V. Clough, 17 Wend. 351 ; People v. Williams, 4 Hill, N. Y. 9 ; Fenton v. 227 §422 SPECIFIC OFFENCES. [book III. That, before the finding of this indictment, A, &c. did falsely pretend to X and Y, who were at the time members of a mercantile firm of the name and style of X & Y, with intent to defraud, that he had satisfied a certain deed of trust which M had or held upon the said A's cotton crop, and that the said M had directed and given authority to him the said A to receive from the said X and Y the proceeds of said cotton crop, which was then in their hands, and by means of such false pretence obtained from the said X and Y the sum of sixty-five dollars in money; against the peace, Jfcc.^ § 422. At Common La-w, Shorter — (By Counterfeit Coin). — Under the common-law rules, a somewhat, though not greatly, briefer expression of the idea than the foregoing, changing, prob- ably for the better, the order of the allegations (the foregoing following the common order), was employed in a late case and adjudged adequate. It is, — That A, &c. on, &c. at, &c. [devising and intending to cheat and defraud one X of his goods, money, and property "^j, unlawfully, knowingly, and People, 4 Hill, N. Y. 126 ; People v. Crissie, 4 Denio, 525 ; Smith v. People, 47 N. Y 303 ; People v. Blanchard, 90 N. Y. 314, 315; Webster v. People, 92 N. Y. 422 People I'. Hale, 1 Wheeler Crim. Cas. 174 People V. Conger, 1 Wheeler Crim. Cas 448 ; Skiff V. People, 2 Parker C. C. 139 People V. Chandler, 4 Parker C. C. 231 People V. Sully, 5 Parker C. C. 142 ; Peo- ple V. Smith, 5 Parker C. C. 490 : People V. Cooke, 6 Parker C. C. 31 ; People v. Stetson, 4 Barb. 151 ; People r. Higbie, 66 Barb. 131 ; Clark tf. People, 2 Lans. 329 ; People V. Chandler, 1 Buf. 560, 561. North Carolina. — The State v. Fitz- gerald, 1 Dev. & Bat. 408 ; The State v. Boon, 4 Jones, N. C. 463 ; The State v. Pickett, 78 N. C. 458 ; The State v. Wiin- day, 78 N. C. 460 ; The State v. Lambeth, 80 N. C. 393 ; The State v. Holmes, 82 N. C. 607 ; The State v. Reese, 83 N. C. 637; The State v. Eason, 86 N. C. 674; The State v. Dickson, 88 N. C. 643. OA/o. — Norris v. The State, 25 Ohio State, 217; EUars v. The State, 25 Chio State, 385 ; Baker ,'. The State, 31 Ohio State, 314 ; Kennedy ^. The State, 34 Ohio State, 310 ; Redmond u. The State, 35 Ohio State, 81. Pennsyloania. — Commonwealth v. Hen- ry, 10 Harris, Pa. 253. South Carolina. — The State v. Wilson, 2 Mill, 135 ; Middleton «. The State, Dudley, S. C. 275. 228 Tennessee. — Jim v. The State, 8 Humph. 603 ; Britt v. The State, 9 Humph. 31 ; The State v. De Hart, 6 Baxter, 222 ; Wallace v. The State, 2 Lea, 29, 30; Moulden v. The State, 5 Lea, 577 ; Canter I). The State, 7 Lea, 349. Texas. — The State v. Vickery, 19 Texas, 326 ; Tomkins v. The State, 33 Texas, 228 ; Burd v. The State, 39 Texas, 509 ; Johnson v. The State, 41 Texas, 65 ; The State v. Dyer, 41 Texas, 520; The State V. Levi, 41 Texas, 563 ; Wa.'ihington V. The State, 41 Texas, 583 ; Martin v. The State, 1 Texas Ap. 586, 587; Mar- wilsky V. The State, 9 Texas Ap. 377; Mathews v. The State, 10 Texas Ap. 279; Stringer v. The State, 13 Texas Ap. 520. Vermont. — The State c Bacon, 7 Vt. 219; The State c. Snmner, 10 Vt. 587; The Stnte v. Lathrop, 15' Vt 279. Virginia. — Commonwealth v. Swinney, I Va. Cas. 146, 150. West Virginia. — The State k. Hurst, II W. Va. 54. Wisconsin. — The Stiite v. Kube, 20 Wis. 217. United States. — District of Columbia. United States v. Hale, 4 Cranch C. C. 83 ; Jones 1'. United States, 5 Cranch C. C. 647. 1 Oliver v. The State, 37 Ala. 134. '^ As to this, see ante, § 420 and note. If its insertion is necessary, plainly it need not be both here and at the close of the indictment. CHAP. XXXIII.J FALSE PRETENCES. § 423 designedly did falsely pretend to the said X, that he the said A had run three clamps of timber from Davis bridge in said county to the mouth of Rocli Fish creek ; whereas, in truth and in fact, he the said A had not run three clamps of timber from Davis bridge in said county to the mouth of Bock Fish creek, as he the said A then and there well knew ; by color and means of which said false pretences he the said A did then and there unlawfully, knowingly, and designedly obtain from the said X the sum of nine dollars [query, see post, § 423], property of said X, with intent' to cheat and defraud the said X ; against the peace, &c.^ §423. By Forged and other Worthless Paper.^ — For obtaining a chattel and coin by the false pretence that a flash note was good, it has been adjudged adequate in allegation, where the offence was misdemeanor, to say, — That A, &c. and B, &c. on, &c. at, &c. unlawfully did falsely pretend to one X, that a certain printed paper then and there produced by him the said A, and by him offered and given to the said X in payment for certain pigs, before then agreed to be sold by the said X to the said A, was a good and valid promissory note for the payment of, &c. ; by means of which said false pretence, the said A and B did then and there unlaw- fully obtain from the said X five pigs of the value of, &c., one piece of the current gold coin, &c. called, &c. of the value of, &c. [and specifying in like manner the rest of what was received in change *], of the moneys, 1 See the last note. ^ Crim. Law, II. § 448. 2 The State v. Dickson, 88 N. C. 643. * How allege Money, &e. — It appears In this form, which omits the word "felo- to be the doctrine, that, in the absence of niously," the offence is assumed to be mis- any statutory modification of common-law demeanor. Of course, whether the pleader requirements, the allegation of the thing takes this form or the formula in section wrongfully taken must be the same in false before the last, or any other, for his model, pretences as in larceny. Crim. Proced. II. he will lay the statute on which he is pro- § 173. "Money" ordinarily means coin ceeding before him, and see that his allega- (Stat. Crimes, § 217, 344-346), the pieces tions do not depart from its terms. An- taken must be described, and it will not other short form adjudged also to be good suffice simply to say such a sum in money, — The State u. Boon, 4 Jones, N. C. or coin of so much value. Ciim. Proced. 463 is, — II. § 703-705. ^/ortion, the allegation of mi. i A !■ ru • -I .qv.,„„„j „„• money will not cover bank-notes. Crim. That A, &c. [bemg an evil-disposed per- j tt i; .,00 t, ,1, • 1 . .1, j • son, needless, ante, § 46, and wickedly design- Proced. II. § 732, where the right method ,8 ing to cheat one X, needless, as see above], pointed out. The rules for this are embar- on, &c, [with force and arms, needless, ante, rassing in practice, and they are in Eng- § 43], at, &c. knowingly and designedly, by land and pretty extensively in this country means of a certain false token, to wit, by relaxed by statute. In England the pro- means of a quarter of a dollar which the said vision (14 & 15 Vict. c. 100, § 18) is, that, A well knew to be counterfeit, did then and " ;„ every indictment in which it shall be there obtain from the said X one piece of necessary to make any averment as to any gingerbread, with intent to cheat and defraud ^^^^y. ^^. ^„^ ^^jg ^f j^g ^^^^.^ ^^ jj gj^g,} the said X ; against the peace, &c. ^^ sufficient to describe such money or Compare this form with the one several bank-note simply as money, without speci- times longer, for the like offence, in Com- fying the particular coin," &c. And see mouwealth v. Nason, 9 Gray, 125. ante, § 404. 229 § 425 SPECIFIC OFFENCES. [BOOK III. goods, and chattels of the said X, with intent then and there to cheat and defraud him the said X of the same. Whereas in truth and in fact the said printed paper was not a good and valid promissory note for the pay- ment of the aforesaid sum of, &c. or for the payment of any sum whatever [and this the said A and B then and there well knew ^] ; against the peace, •fee.'' § 424. As to Pecuniary Standing. — The allegations may be, — That A, &c. on, &c. at, &c. did, with the intent to cheat and defraud one X, then and there [feloniously], unlawfully, knowingly, and designedly felsely pretend to the said X, that he the said A was owing but little ; that he was owing M for a pair of oxen, and was not owing any other large debt ; that the sale of wood and bark owned by him the said A would more than pay all he owed [_or, setting out any other false pretences as they were actually made '] ; and that his note for two hundred and fifty dollars [^or, &c. as the proofs will be] was good; whereas, in truth and in fact, he was then owing large amounts ; he was then owing other large debts in addition to what he was then owing M for a pair of oxen,* and the sale of wood and bark which he then owned would not more than pay for all he then owed, and his note for two hundred and fifty dollars was not then good [or, &c. negativing whatever pretences have been alleged], all of which he the said A then and there well knew ; by color and means of which false pretences he the said A did then and there [feloniously], un- lawfully, knowingly, and designedly obtain from the said X one pair of oxen of the property [or, goods and chattels, &c.^] of the said X, of the value of, &c. with the intent to cheat and defraud as aforesaid the said X ; against the peace, &c.° § 425. Other Pretences. — The books are full of forms, setting out the allegations for almost every sort of false pretence imagin- able. To copy them would simply augment these pages with no 1 The matter in these brackets is, be- false pretences consist of words used by yond a reasonable doubt, necessary in this the respondent, it is sufficient to set them case. Ante, § 419 and note. It is not in out in the indictment as they were uttered, the indictment copied, but the particular without undertaking to explain their mean- question was not raised. ing." Bellows, J. in The State v. Call, 48 2 Reg. V. Coulson, 1 Den. C. C. 592, 4 N. H. 126, 131, 132. Cox C. C. 227. Compare this form with * Crim. Proced. II. 5 168; post, § 425, that for the like common-law cheat, ante, note. § 276. For other forms for cheating by 6 Ante, § 420. the use of different sorti of forged and other 6 The State v. Call, supra. For other worthless paper, see 3 Chit. Crim. Law, forms see post, § 434 ; 6 Cox C. C. App. 1016; 6 Cox C. C. App. 49; 11 lb. App. 51, 53, 54, 94, 157. Against a married 11; Rex «. Freeth, Russ. & Ry. 127; Reg. woman, who, living apart from her hus- V. Philpotts, 1 Car. & K. 112; Reg. v. band under an allowance, bought goods un- Evans, 5 Car. & P. 553 ; Smith v. People, der the pretence that she was living with 47 N. Y. 303. him and he would pay for them. Reg. i>. 8 Crim. Proced. H. § 178. "Where the Davis, 11 Cox C. C. 181. 230 CHAP. XXXIII.] FALSE PRETENCES. 426 compensating advantages to the pleader.^ Still what is set down in the note may be helpful. § 426. Personating. — A species of false pretence is falsely per- sonating another ; ^ and, as such, it may be laid in the same manner as any other false pretence. Various sorts of it are like- wise punishable under statutes made in special terms for llieir 1 Ante, §418. Ownership. — For ob- taining valuables under the false pretence of owning particular property ( Crim. Law, IL § 426, 444), The State i>. McConkey, 49 Iowa, 499 ; Webster v. People, 92 N. Y. 422 (where land conveyed was subject to a mortgage) ; Commonwealth v. Lincoln, 11 Allen, 233 (personal property) ; 5 Cox C. C. App. 51, 90 ; 6 lb. App. 60. In The State V. McConkey, supra, the allegation of the false pretence was, " that he the said A was then and there the owner of a cer- tain city lot ; to wit, lot one, in block two in Van's addition to the city of Des Moines, Iowa, and . . . that a certain lot which he the said A then and there pointed out, showed, and designated to him the said X, was lot one, in block two, in Van's addi- tion to the city of Des Moines, Iowa, afore- said." Being Military Officer, &o. — In one case the false pretence alleged was, " that he the said A was then and there a captain in the Sixth New York cavalry, and was then and there enlisting soldiers by authority of the United States govern- ment for his company, to wit, a company in," &c. People v. Cooke, 6 Parker C. C. 31. And see Reg. v. Gardner, Dears. & B. 40, 7 Cox C. C. 136. And for another like form, see Hamilton v. Reg. 9 Q. B. 271, 2 Cox C. C. 11 ; and the same form in Reg. V. Hamilton, 1 Cox C. C. 244, 245. Bought Property — which must be im- mediately paid for, 4 Cox C. C. App. 33. Horse — falsely represented sound, &c. Reg. o. Keighley, Dears. & B. 145, 7 Cox C. C. 217 ; 3 Cox C. C. App, 49 ; The State V. Jackson, 39 Conn. 229. Author- ity. — False pretence of authority to re- ceive money, &c., ante, § 420 ; 6 Cox C. C, App. 51, 138, Carrier, &c.— falsely pre- tending delivery of parcel, or otherwise », sum due, 3 Chit. Crim. Law, 1019 ; The State V. Kube, 20 "Wis, 217 ; Rex v. Airey, 2 East, 30 ; 6 Cox C. C, App. 55. Work, — false account of, 6 Cox C. C. App. 56. Weight or Measure, — false, 6 Cox C. C. App. 59, 62 ; Rex v. Reed, 7 Car. & P. 848 ; Reg. v. Lee, Leigh & C. 418, 9 Cox C, C. 460, Society, — false pretence as to enrolment of, &c. 5 Cox C. C. App, 79 ; 6 lb, App. 58, Unmarried, — that the defendant was, Reg, u. Copeland, Car. & M. 516 ; Reg. v. Johnston, 2 Moody, 254. Money Paid, — false pretence as to, 3 Chit, Crim, Law, 1011 ; 6 Cox C, C. App. 51, Pauper, — falsely pretending a child to be a, 3 Chit, Crim. Law, 1009. Goods, — quality of, 6 Cox C, C. App. 60. In Reg. V. Kerrigan, Leigh & C, 383, 9 Cox C, C. 441, the allegations, a conviction whereon was affirmed, were, — That A, &c. and B, &c, on, &c. at, &c. un- lawfully, knowingly, and designedly did false- ly pretend to X, that they the said A and B were possessed of a large quantity of good tobacco, to wit, two bales of tobacco contain- ing, &c, of the value of, &c. and which they the said A and B then proposed to and did sell and deliver to the said X ; by means of which said false pretence the said A and B did then and there unlawfully obtain from the said X the sum of, &c. of the moneys of him the said X [this allegation of money is probably not good except by the aid of stat- utes which now exist in England and largely in our States, as see ante, § 423 and note], with intent thereby then and there to cheat and defraud the said X [here slightly alter- ing expressions authorized by English stat- ute, to satisfy common-law rules] ; whereas, in truth and in fact, the said A and B were not then possessed of and had not then in their possession a large quantity of good tobacco, to wit, two bales of tobacco containing, &c. of the value of, &c. as thej' the said A and B did then and there so falsely pretend, but only [here extending the negative averment be- yond a bare denial, as see ante, § 424; Crim. Proced. II. § 168] two bales which contained half a pound weight of tobacco together with a large quantity of stones, bricks, and saw- dust, as they the said A and B, at the time they so falsely pretended as aforesaid, well knew ; against the peace, &c. 2 Crim. Law, II. § 152-155, 439. 231 § 428 SPECIFIC OFFENCES. [BOOK III. suppression. The indictment is easily drawn, and no special forms for it, under the greatly varying statutes, need here be given.^ § 427. Chose in Action. — The indictment for obtaining a chose in action by false pretences is the same as that for thus getting any other property. But the pleader must see that he laj-s the acquired thing in proper terms.^ And he should not confound this dereliction with that of — § 428. Obtaining Signature.^ — A common form of the statutory expressiou is "obtain the signature of any person to any written instrument," the offence being otherwise the same as is sup- posed in the foregoing sections. The allegations may be, for example, — [After setting out the false pretences in the usual way, proceed] : By means of which said false pretences the said A did then and there unlawfully, knowingly, and designedly \or, &o. employing the words of the statute] ob- tain the signature of the said X* to a certain bond bearing date, &o. in the penal sum of, &c. conditioned for the payment of, &c. to the said A, and also the signature of the said X and Y his wife to a certain indenture of mortgage bearing date, &c. executed to the said A upon certain real estate of the said X situated in the county of M. conditioned for the payment of the said sum of, &n. which indenture of mortgage was afterward duly re- corded [and following, with the other allegations, the common forms].^ Or, the allegations may be, — That A, &c. on, &c. at, &c. did unlawfully, feloniously, designedly, and with intent to defraud one X, represent and pretend to him the said X, that a certain instrument in writing which he the said A then and there had prepared ready to be executed by him the said X was an order for a certain number of patent churns ; it being then and there understood by 1 For forms, see 3 Chit. Crim. Law, able security, Rex v. Yates, 1 Moody, 170; 1083, 1085, 1086; 6 Cox C. C. App. 53; Reg. v. Danger, Dears. & B. 307, 309, 7 Rex V. Berthand, 4 Went. PI. 55 ; Reg. e. Cox C. C. 303. Railway ticket, Reg. «. Lake, 11 Cox C. C. 333; Rex v. Tannet, Boulton, 1 Den. C. C. 508, 2 Car. & K. Russ. & Ry. 351 ; Rex v. Story, Russ. & 917, 3 Cox C. C. 576. Ry. 81 ; Rex v. Martin, Russ & Ry. 324 ; ' Crim. Law, II. § 460, 484. , Rex ('. Ci'amp, Russ. & Ry. 327; Rex «. ' This sufficiently implies, what is a Keefe, Jebb, 6 ; Rex v. Fitzmaurice, Jebb, necessary part of the oSence, that the in- 29; Martin «. The State, 1 Texas Ap. 586, striiment was delivered. Fcnton y. People, 587. 4 Hill, N. Y. 126. 2 As to which see ante, § 423, note ; ^ Fenton v. People, supra. For other Crim. Proced. II. § 732. For a form for forms on the same statute see People v. thus obtaining a promissory note, see 4 Stone, 9 Wend. 181 ; People v. Crissie, 4 Went. PI. 78. Bill of exchange, 3 Chit. Denio, 525; People i'. Sully, 5 Parker C. C. Crim. Law, 1020; 6 Cox C. C. App. 57. 142. Bank check, 6 Cox C. C. App. 57. Valu- CHAP. XXXIII.] FALSE PRETENCES. § 432 and between the said A and the said X that he the said X should execute and deliver to him the said A such an order for patent churns. By means of which false representations and pretences the said A did then and there obtain the name and signature of him the said X to a certain written instru- ment in form of a promissory note of him the said X, purporting to bear date the day and year aforesaid, for the sum of, &c. payable sixty days after date to the said A or order, for value received. Whereas, in truth and in fact, the said instrument so prepared and made ready for the signa- ture of him the said X was not an order for a certain number of patent churns, and was not any instrument which it was then and there under- stood between the said A and the said X that the said X should execute, all of which the said A then and there well knew ; against the peace, &C.'' § 429. Money in Charity. — For obtaining, by false pretences, a gift in charity,^ the indictment sets out the particular pretences according to the fact, which varies in the several cases. And otherwise it is constructed on the ordinary models.^ § 430. Swindling. — The various sorts of cheating, including this offence, are in some of the States termed swindling.'' There appears to be nothing, depending on the name, to modify the indictment ; but a reference to some cases in which are forms may be convenient.^ § 431. Confidence Game. — We have a statute making it indict- able to obtain " any money or property by means of the use of any false or bogus checks, or by any other means or device com- monly called the confidence game." ^ The statute prescribes the form for the indictment.'^ § 432. Sleight of Hand, &c. — A statute makes punishable one who, "by the game of three-card monte, so called, or any other game, device, sleight of hand, pretensions to fortune-telling, trick, or other means whatever, by the use of card.s or other im- 1 The State o. Joaquin, 43 Iowa, 131. 275; The State . The State, 11 Ohio, 82 ; Bcvington v. The State, 2 Ohio State, 160; Poago v. The State, 3 Ohio State, 229 ; Chidester u. The Stale, 25 Ohio State, 433 ; Henry v. The State, 35 Ohio State, 128. Pennsylvania. — Respublica v. Sweers, 1 Dall. 41, 42 ; Pennsylvania v. Huffman, Addison, 140; White o. Commonwealth, CHAP. XXXVII.j FORGERY OP WBITINGfS, ETC. 463 law; but they are not in extensive use, and they require no explanations.^ § 462. Joining Forgery and Uttering. — It is common to join, to the charge of forgery, that for uttering the forged instrument. A part of the precedents for the common-law offence put both accusations in one count, and a part have a count for each. Relying on the former class of precedents 'as evidence of the law, we have the result, which reason confirms, that a count charging both is not on its face double ; and, where the facts to be shown in evidence may properly be deemed one transaction, this is evi- dently the better practical method.^ The terms of most of our statutes are "forge or utter," &c. ; and, on such a statute also, in a case of one transaction, the indictment may be either way.^ But under the common-law rules, there can be no joinder, even by separate counts, where the one is felony and the other is mis- demeanor.* Now, — §463. Ordinary Common-law Form — (Writ). — The old com- mou-law precedents for this offence abound in redundancies 4 Binn. 418; Ream y. Commonwealth, 3 S. & K. 207 ; Braddee v. Commonwealth, 6 Watts, 530 ; Drew i^. Commonwealth, X Whart. 279 ; Commonwealth v. Beamish, 31 Smith, Pa. 389 ; McClure v. Common- wealth, 5 Norris, Pa. 353 ; Commonwealth V. Luherg, 13 Norris, Pa. 85. Rhode Island. — The State v. Brown, 1 K. I. 528. South Carolina. — The State u. Wash- ington, 1 Bay, 120. Tennessee. — Rice v. The State, 1 Yerg. 432 ; Matthews v. The State, 2 Yerg 233 ; Walton V. The State, 6 Yerg. 377 ; Hooper V. The State, 8 Humph. 93 ; The State v. Martin, 9 Humph. 55 ; Williams v. The State, 9 Humph. 80 ; The State «. Corley, 4 Baxter, 410; The State v. Ward, 7 Bax- ter, 76. Texas. — Shanks a. The State, 25 Texas Supp. 326 ; Horton v. The State, 32 Texas, 79 ; Ham v. The State, 4 Texas Ap. 645, 647 ; Labbaite v. The State, 6 Texas Ap. 257 ; Potter v. The State, 9 Texas Ap. 55 ; Johnson v. The State, 9 Texas Ap. 249, 250 ; Rogers c. The State, 11 Texas Ap. 608, 610. Vermont, — The State v. McLeran, 1 Ail. Newland, 7 Iowa, 242 ; The State 1048-1054; Archb. dim. PI. & Ev. 19th v. Barrett, 8 Iowa, 536; The State k. Hay- ed. 624; Rex ti. Graham, 4 Went. PI. 25, den, 15 N. H. 355; Reg. v. Lee, 2 Moody 27; United States w. Brewster, 7 Pet. 164; & R. 281 ; Mount v. Oommonwealth, 1 Rex V. Palmer, 2 Leach, 4th ed. 978, Russ. Duv. 90 ; The State v. Ward, 6 N. H. 529 ; & Ry. 72 ; Wilkinson v. The State, 10 Ind. The State v. Cair, 5 N. H. 307 ; People v. 372; Commonwealth v. Boynton, 2 Mass. Lewis, 1 Wheeler Crim. Cas. 181. 77 ; Commonwealth v. Simonds, 14 Gray, ' Probably not necessary; as see ante, 59 ; Hobbs v. The State, 9 Misso. 855 ; § 460 and note. Bnckland «. Commonwealth, 8 Leigh, 732; * For other forms, see 3 Chit. Crim. Commonwealth u- Thomas, 10 Gray, 483; Law, 1050; Townsend v People, 3 Scam. Commonwealth v. Carey, 2 Pick. 47 ; 326 ; United States «. Williams, 4 Bis. United States v. Cantril, 4 Cranch, 167; 302; People v. Peabody, 25 Wend. 472; United States v. Hall, 4 Cranch C. C. Brown a. Comraonwcalth, 8 Mass. 59 ; 229; Hooper v. The State, 8 Hniioph. 93; Commonwealth v. Atwood, 11 Mass. 93; Williams v. The State, 9 Humph. 80 ; The People v. Thoms, 3 Parker C. C. 256, 257 ; State V. Wilkins, 17 Vt. 151 ; Murry v. The State v. Dourdon, 2 Dev. 443; Com- Commonwealth, 5 Leigh, 720; Jett v. monwealth w. Woods, 10 Gray, 477 ; Com- Commonwealth, 18 Grat. 933; Rex v. monwealth v. Houghton, 8 Mass. 107; Holden, Russ. & Ry. 154, 2 Taunt. 334; Commonwealth v. Morse, 2 Mass. 138; Reg. B. Green, 3 Car. & K. 209; Buckley The State v. Symonds, 36 Maine, 128; 252 CHAP. XXXYII.J FORGERY OF WRITINGS, ETC. § 469 § 468. Bill of Exchange — (Forging and Uttering). — The fore- going models will serve for a bill of exchange. Or the form may- be varied ; as, for example, on a statute making it felony to " forge any bill of exchange, or utter as true any forged bill of exchange knowing it to be forged," it will be good to say, — That A, &c. on, &c. at, &c. did feloniously forge a bill of exchange [or a writing on paper, or a writing on paper purporting to be a bill of ex- change], and did: then and there, knowing such bill of exchange \_or writ- ing] to be forged, utter the same as true^ [to one X^], of the tenor following [here setting it out^], with the intent to defraud the said X, the said Y [the apparent drawer of the bDl], the said Z [the drawee or ac- ceptor], and other persons whose names are to the jurors unknown ; * against the peace, &c.' § 469. Bank-cheok. — A bank-check is so far in the nature of a bill of exchange that the indictment for forging or uttering it may assume the same form ; of course, designating it, not as a " bill of exchange," but as a " bank-check." No separate form, therefore, need be here given. The pleader should bear in mind the necessity of adhering to the statutory terms.® The State v. Bonney, 34 Maine, 223 ; Gabe V. The State, 1 Eng. 51S ; The State u, Morton, 8 Wis. 352 ; United States v. Noble, 5 Cranch C. C. 371 ; The State v. Randall, 2 Aikens, 89 ; McMillen u. The State, 5 Ohio, 268 ; Bevington u. The State, 2 Ohio State, 160; Tomlinson u. People, 5 Parker C. C. 313 ; People v. Van Kenren, 5 Parker C. C. 66 ; Dennis y. Peo- ple, 1 Parker C. C. 469 ; People v. Lewis, 1 Wheeler Crim. Gas. 181 ; People v. Davis, 21 Wend. 309 ; Gommonwealth v. Hall, 97 Mass. 570; Matthews v. The State, 2 Yerg. 233 ; United States v. Fisler, 4 Bis. 59. 1 These words " as true " are necessary even under some statutes which do not con- tain them, being introduced by interpreta- tion. Crim. Proccd. II. § 464. 2 As to the necessity for this, see ante, § 460 and note. 8 If the forgery or uttering has no rela- tion to the acceptance, there is no need of setting out the latter; as, see the forms in 3 Chit. Grim. Law, 1071 ; Rex v. Gilchrist, 2 Leach, 4th ed. 657 ; Rex v. Hart, 1 Moody, 486, 7 Car. & P. 652 ; and in perhaps most of the precedents it is not set out. Under some of the statutes, and generally, it is no part of the bill. Stat. Crimes, § 338 and note ; Rex v. Horwell, 1 Moody, 405, 6 Car. & P. 148. Yet in some cases the pleader will choose to set it out. To let it simply follow in the copy the bill, as though a part of it, would seem to he ordinarily adequate ; or, if it is across the face of the original, it may be written across the face of the copy. See Rex v. Horwell, supra ; Rex t. Szudurskie, 1 Moody, 429. Or, after the copy of the bill proper, the allegation may proceed : — And on the back \or across the face] of said forged bill of exchange [oi- forged writ- ing] [or, across which bill of exchange] were and are the words " Accepted, George John- 1 Ante, § 457. 5 For other forms, see the places re- ferred to in the note before the last ; Archb. Crim. PI. & Ev. 10th ed. 372, 373 ; 4 Went. PI. 28-31 ; Rex. v. Reading, 2 Leach, 4th ed. 590 ; Rex v. Brewer, 6 Car. & P. 363. 6 For forms, see The State v. Kroeger, 47 Misso. 552 ; Cross v. People, 47 111. 152 ; Clements v. People, 5 Parker G. C. 337 ; The State v. Morton, 27 Vt. 310 ; Crofts V. People, 2 Scam. 442. 253 § 470 SPECIFIC OFFENCES. [BOOK III. § 470. Order, Warrant, Request, Draft, &c} — These instru- ments, authorizing or requiring the payment of money, the de- livery of goods, or the like, so far resemble bills of exchange that ordinarily, as in the case of bank-checks, the indictment for the forgery or the uttering is in substantially the same form. But there is sometimes doubt as to the. right name of an instru- ment of this class, rendering the indictment and proofs specially troublesome by reason of a threatened variance, where the pur- port clause is employed ; for which and other reasons the pleader is recommended commonly to omit this clause entirely, not even designating the instrument by its name."^ Still, though the name is omitted, the instrument must appear on its face as set out, or be made in averment to appear, to the judicial understanding, to be within the statutory term§ and of prima facie validity. When extrinsic matter is for this reason required to be alleged, weave it into the other averments in the manner already directed.^ When not, the form may be, for the forgery, if so the terms of the statute are covered, — That A, &c. on, &c. at, &c. did falsely [and feloniously] make and forge \or, &c. employing the statutory expression] a writing on paper of the tenor following [here setting it out], with the intent to injure and defraud the said X, the said Y, and some person to the jurors unknown ; against the peace, &c. If the pleader chooses to charge an uttering in a second count,* which is the method in the greater number of the precedents, let him proceed, — And the jurors aforesaid on their oath aforesaid do further present,^ that the said A did afterward, on the day and year aforesaid, at, &c. aforesaid, fraudulently [and feloniously] utter, publish, and put off as true [or, &c. em- ploying the statutory words], [to one X ^], a certain other false, forged, and counterfeit [or, &c. following the language of the statute] writing on paper, of the tenor following [here setting it out], he the said A then and there well knowing the same to be false, forged, and counterfeit, with intent to injure and defraud the said X, the said Y, the said Z, and other persons to the jurors unknown ; against the peace, &C.'' 1 Stat. Crimes, § 325-336 ; Crim. Law, « Ante, § 64. II. § 545-547, 560 ; Crim. Proced. II. « As to which see ante, § 460 and note. § 439, 473, 474. ' For other forms, for the forgery and 2 Ante, § 456. for the uttering, see Crim. Proced. II. » Ante, § 459. § 473 ; Archb. Crim. PI. & Ev. 10th ed. * Ante, § 462. 374 ; 3 Chit. Crim. Law, 1054, 1074 ; Rex 254 CHAP. XXXVII.] FORGERY OP WRITINGS, ETC. § 472 -§ 471. Receipt, Acquittance, &o. — For forging and uttering receipts, acquittances, and other like writings, the indictment is readily drawn on such of the foregoing models as the pleader may select. Some places where precedents can be found are referred to in the note.^ § 472. Indorsement — (Acceptance — Other Indorsed Matter). — Where the offence consists of forging something upon the back or other part of a genuine instrument, the indictment first re- cites such instrument, then charges the forgery of the added matter, and copies it. For example, — That A, &c. on, &c. at, &c. did, upon the back of a bill of exchange of the tenor following [here setting it out], falsely [and feloniously] make, forge, and counterfeit [or, &c. employing the statutory expression] an in- dorsement thereof in the following words, " Mary M. McCarthy " [the name of the payee] ; with the intent to injure and defraud the said, &c. [as at ante, § 457, 470, &c.] ; against the peace, &c. Or, for uttering, — That A, &c. on, &c. at, &c. having in his hands and possession a bill of exchange [or writing on paper] of the tenor following [here setting it out], on the back of which bill of exchange [or writing] was and is a false, forged, and counterfeit acceptance [or indorsement] in the following words [setting it out], did then and there, well knowing the said acceptance [^or u. Lovell, 1 Leach, 4th ed. 248 ; Rex v. 2 Leach, 4th ed. 597 ; Hex v. Hunter, 2 Clinch, 1 Leach, 4th ed. 540 ; Rex v. Leach, 4th ed. 624 ; Rex u. Thompson, 2 Thomas, 2 Leach, 4th ed. 877 ; Rex v. Leach, 4th ed. 910 ; Reg. v. Pringle, 2 Rushworth, Russ. & Ry. 317 ; Rex v. Moody, 127, 9 Car. & P. 408 ; Reg. v. Proud, Russ. & Ry. 389, 1 Brad. & B. 300 ; West, 1 Den. C. C. 258, 2 Car. & K. 496, Rex V. Bamfield, 1 Moody, 416; Rex 2 Cox C. C. 437 ; Reg. c-. Green, Jehb, 282 ; V. Donnelly, 1 Moody, 438 ; Reg. u. The State v. Thornburg, 6 Ire. 79 ; The Pike, 2 Moody, 70 ; Reg. v. Robson, 2 State v. Bihb, 68 Misso. 286 ; Henry v. The Moody, 182, 9 Car. & P. 423; Reg. v. Mc- State, 35 Ohio State, 128; Pennsylvania Connell, 2 Moody, 298, 1 Car. & K. 371 ; v. Huffman, Addison, 140 ; Rice v. The Reg. V. Williams, 2 Den. C. C. 61, 64 ; Reg. State, 1 Yerg. 432. In this case of Rice v. V. Carter, 1 Cox C. C. 170 ; Reg. v. Lons- The State, it was held that the indictment dale, 2 Cox C. C. 222 ; Reg. v. Dixon, 3 for forging a receipt must aver an indebt- Cox C. C. 289 ; Rex v. Thomas, 7 Car. & edness. But such, it is believed, is not the P. 851 ; Langdale v. People, 100 111. 263, 266 ; Commonwealth v. Quann, 2 Va. Cas 89 ; The State v. Flye, 26 Maine, 312, 314 The State v. Watson, 65 Misso. 115, 117 People u. Noakes, 5 Parker C. C. 291 general doctrine, either on principle or on authority, in the absence of special statu- tory terms. And though there are prece- dents with this averment, most do not have it. Still the language of a receipt may be The State u. Lamb, 65 N. C. 419; Cora- so imperfect as to require this averment in monwealth v. ICearns, 1 Va. Cas. 109; The explanation. And in various other cases State V. Baumon, 52 Iowa, 68. explanatory allegations are necessary, in 13 Chit. Crim. Law, 1076, 1079; order to show ;)rima/ac!e guilt, in this class Archb. Crim. PI. & Ev. I9th ed. 638; Rex of indictments. V. Ferrers, Trem. P. C.129; Rex v. Lyon, 255 § 474 SPECIFIC OFFENCES. [BOOK HI. indorsement] to be false, forged, and counterfeit, utter and publish the same [to X ^], as true, with intent to injure and defraud the said, &c. [as in the last form] ; against the peace, &c.^ § 473. Erasing or Detaching Indorsement. — To erase or detach an indorsement which constitutes no part of the original instru- ment is not ordinarily deemed a forgery at the common law, though it is an indictable misdemeanor.^ For such common-law misdemeanor, the following form, here somewhat amended in immaterial parts, has been judicially sustained: — That A, &c. on, &c. at, &c. having in his possession a certain promissory note of the tenor following [here setting it out], on the back whereof was then and there indorsed the receipt of twenty dollars in part pay- ment thereof, and the balance of said note and no more being then and there due and unpaid, did then and there wittingly, falsely, and deceitfully alter the said promissory note, by then and there wittingly and deceitfully separating said indorsement from said promissory note, with intent to de- fraud and deceive the said X [the maker] ; against the peace, &c.^ § 474. Altering. — Though commonly it is practically best to charge an alteration as an original forgery,^ it is not always so. When, therefore, the pleader chooses, he first sets out the origi- nal writing, then states the alteration ; ^ and sometimes, but not necessarily, adds a recital of the whole in its altered form. It is good to say, — That A, &c. on, &c. at, &c. having in possession a certain writing on paper [or a certain writing sealed, or a certain deed '] of the tenor follow- ing [here set out the genuine original], did then and there fraudulently [and feloniously] alter' the same by removing the word "hundred" where it stands between the words "one" and "dollars," and substitutmg therefor > the word " thousand," and by, &c. [proceeding to state all the other altera- tions ; and, if the pleader chooses, or, if the tenor of the alterations has not been thus made absolutely certain, add], so that the said writing thereby 1 Ante, § 460 and note, and other The State, 3 Ohio State, 229 ; The State places. V. Davis, 53 Iowa, 252 ; Commonwealth v. ^ For other forms, for the forgery and Spilman, 124 Mass. 327 ; The State a. for the uttering, see 3 Chit. Crim. Law, Martin, 9 Humph. 55. 1046 ; Rex v. Burton, 4 Went. PI. 32 ; » Crim. Law, IL § 578. Eeg. V. Koberts, 7 Cox C. C. 422 ; Eeg. v. ^ The State v. McLcran, 1 Aikens, 311. Hawkes, 2 Moody, 60 ; Rex v. Marshall, And see further of this case, Crim. Law, RuS3. & Ry. 75 ; Rex v. Chalmers, 1 I. § 806. Moody, 352 ; Reg. v. Winterbottom, I * Ante, § 458. Den. C. C. 41, 2 Car. & K. 37, 1 Cox C. C. ^ Crim. Proced. II. § 419, 446. 164; Rex u. Bontien, Russ. & Ry. 260; ' Ante, § 460. Reg. V. Cropper, 2 Moody, 18; Common- 8 Crim.Proced.il. § 426 and note, 446. wealth u. Castles, 9 Gray, 123 ; Poage v. 256 CHAP. XXXVII.] FORGERY OP WRITINGS, ETC. §476 became and then and there was of the tenor following * [here setting it out in its altered form], with the intent to injure and defraud, &c. [as in the foregoing forms] ; against the peace, &c.'' § 475. Other Forgeries. — The foregoing forms do not in terms cover every forgery and indictable uttering known to the law ; but they furnish the models after which the indictments for the rest may be constructed, and it would be of but slight service to the practitioner to extend the forms over the entire ground. The reader will see, in the note, helpful references to places where other forms may be found.^ § 476. Stamps and Seals. — Where the law has provided for 1 Or, omitting all specifications of the alterations, and going back in the form to the end of the setting out of the genuine original, it is undoubtedly good, though I never saw a precedent so, simply to say, — Did then and there fraudulently and felo- niously alter and change the same to the tenor following. 2 And see for precedents for the forgery by altering, and for the uttering, Crim. Pro- ced. II. § 446 ; 3 Chit. Crim. Law, 1047, 1051, 10.')4, 1079 ; Rex v. AVeldon, 4 Went. PI. 23 ; Hex u. Graham, 4 Went. PI. 25 ; Rex V. Newman, Trem. P. C. 130; Rex v. Post, Russ. & Ry. 101 ; Commonwealth u. Mycall, 2 Mass. 136 ; Commonwealth v. Hayward, 10 Mass. 34 ; Kahn v. The State, 58 Ind. 168 ; The State v. Dourdon, 2 Dev. 443 ; Mount v. Commonwealth, 1 Duv. 90; The State v. Bryant, 17 N. H. 323 ; The State v. Martin, 9 Humph. 55 ; The State v. Davis, 53 Iowa, 252 ; Ream V. Commonwealth, 3 S. & R. 207 ; Har- rington V. The State, 54 Missis. 490 ; Com- monwealth V. Beamish, 31 Smith, Pa. 389 ; Coleman v. Commonwealth, 25 Grat. 865 ; Respublica v. Sweers, 1 Dall. 41, 42. " For forging and uttering Entries in Books of Account, — Coleman v. Com- monwealth, 25 Grat. 865 ; Commonwealth V. Beamish, 31 Smith, Pa. 389 ; Phelps o. People, 6 Hun, 428-432, 72 N. Y. 365 ; 7 Cox C. C. App. 51. Public Kecorda,— Coleman v. Commonwealth, supra ; Rex V. Newman, Trem. P. C. 130 ; Reg. v. Sharpe, 8 Car. & P. 436 ; Reg. o. Powner, 12 Cox C. C. 235 ; Ream v. Common- wealth, 3 S. & R. 207 ; Harrington v. The State, 54 Missis. 490; Brown v. People, 86 17 111. 239. Wills, — 3 Chit; Crim. Law, 1067, 1069 ; 4Went. PI. 35-41 ; Rex v. Mur- phy, 19 Howell St. Tr. 694. Instruments under Seal, — such as bonds, conveyances of lands, and the like, 3 Chit. Crim. Law, 1063, 1065 b, 1066 ; Rex o. Nundocomar, 20 Howell St. Tr. 923 ; Rex v. Dunnctt, 2 Leach, 4th ed. 581 ; Rex v. Pauntleroy, 1 Moody, 52 ; Reg. v. Davis, 2 Moody, 177, 9 Car. & P. 427 ; The State v. McGardiner, 1 Ire. 27 ; The State v. Dufour, 63 Ind. 567, 570 ; The State a. Fisher, 65 Misso. 437. Letter or Warrant of Attorney, — 3 Chit. Crim. Law, 1065 ; 6 Went. PI. 370; Rex V. Wordell, Trem. P. C. 132. Cer- tifloate of Character, &o. — 5 Cox C. C. App. 77 ; 10 Cox C. C. App. 2 ; 3 Chit. Crim. Law, 1056 ; Reg. v. Toshack, 1 Den. C. C. 492, 494, 4 Cox C. C. 38 ; Reg. v. Mitchell, 2 Fost. & F. 44 ; The State v. Carr, 25 La. An. 407, 409 ; Commmon- wealth V. Hinds, 101 Mass. 209. Transfer of Stock, — 3 Chit. Crim. Law, 1052 ; Rex V. Gade, 2 Leach, 4th ed. 732. Order of Magistrate — to discharge prisoner, Rex V. Harris, 1 Moody, 393. Next Friend, — consent to be, of infant, Reg. v. Smythies, 4 Cox C. C. 94. Forged Letter, — pass- ing as true. Waterman v. People, 67 111. 91. County Warrant, — The State a. Fen- ly, 18 Misso. 445,448. Bailway Pass, — Reg. V. Boult, 2 Car. & K. 604. Principal and Accessory. — Against wife as prin- cipal and husband as accessory before the fact, Rex v. Morris, 2 Leach, 4th ed. 1096, Russ. & Ry. 270. As Second Offence, — Vincent v. People, 5 Parker C. C. 88, 15 Abb. Pr. 234 ; Cantor v. People, 5 Parker 0. C. 217. 257 § 477 SPECIFIC OFFENCES. [BOOK III. stamps and seals to be used on particular occasions, the court judicially knows what are their devices, words, and appearance ; and any setting out of them by their tenor, were it possible, would be useless. Hence the indictment for counterfeiting them, or for uttering the counterfeits, is similar to that for the like offences against the coin.' It need only allege that the de- fendant, with the fraudulent intent, counterfeited, or, with knowl- edge, uttered the counterfeited stamp, seal, or whatever else the thing is, in resemblance of the one provided by law.^ Or even less will suffice where the statutory limits of the offence are less broad. Thus, under the English statute making one a felon who " shall forge or counterfeit, or shall utter, knowing the same to be forged or counterfeited, the great seal of the United King- dom," ^ the two counts* given in the English books for the forg- ing and the uttering are simply, — Forging. — That A, &c. on, &c. at, &c. the great seal of the United Kingdom falsely, deceitfully, and feloniously did forge and counterfeit ; against the peace, &c. Uttering (second count). — And the jurors aforesaid upon their oath aforesaid do further present, that the said A, afterwards, to wit, on the day and year aforesaid, at, &c. aforesaid, falsely, deceitfully, and feloniously did utter a certain other false, forged, and counterfeited great seal as afore- said, then and there well knowing the same to be false, forged, and coun- terfeited ; against the peace, &c.° § 477. Lost, &c. — Where the forged writing is lost, destroyed, or in the hands of the defendant, there is no precise form of the allegation which alone will suffice, but it may be, for example, — A certain writing on paper [or, &c.J, which said writing is in the pos- session of the said A \or is lost, or is destroyed], by reason whereof the jurors are unable to set it out by its tenor, but it is and then and there was in substance as follows [stating its contents in a form to harmonize with the proofs at the trial, and as exactly and minutely as they will permit].' 1 Ante, § 332, &c. Rex v. Richardson, 4 Went. PI. 22; Rex 2 Rex V. CoUicott, 2 Leach, 4th ed. 1048, v. Palmer, 1 Leach, 4th ed. 352 ; ^Rex v. Riiss. & Ry. 212. Collicott, supra. 3 24 & 25 Vict. c. 98, § 1. 6 Crim. Proced. H. § 404 and notes; ' Ante, § 462, 470. People v. Badgley, 16 "Wend. 53 ; Chides- 5 Archb. Crim. PI. & Ev. 19th ed. 621. ter v. The State, 25 Ohio State, 433; Wal- For forms for forging, and uttering forged lace v. People, 27 111. 45. Btamps, see 3 Chit. Crim. Law, 1057-1062; 258 CHAP. XXXVII.] FORGERY OF WRITINGS, ETC. § 478 § 478. Implements of Forgery. — The indictment for having in possession the implements of forgery follows the particular statute on which it is constructed, and otherwise conforms to that for thus having the tools for counterfeiting the coin. The statutory- terms are so varying that perhaps no separate form here, in ad- dition to the one already given,i would be specially helpful.^ Yet one for taking a photographic "positive " of a foreign note, circulating in the foreign country as money, will be given. The English statute of 24 & 25 Vict. c. 98, § 19, made it felony in one who should, " without lawful authority or excuse, &c. en- grave or in any wise make upon any plate whatsoever, &c. any bill of exchange, promissory note, undertaking, or order for pay- ment of money, &c. in whatsoever language the same may be expressed, &c. purporting to be the bill, note, undertaking, &c. of any foreign prince or State." And the following is one of the counts of an indictment which was sustained, — containing, no doubt, many needless words, but its abridgment here is not deemed desirable : — That in a certain foreign state, that is to say, the empire of Austria, for a long time previously to the commission of the felony and offence herein- after charged, and at the time when the said felony and offence was com- mitted, and since hitherto and up to the present time, divers undertakings for payment of money of the said foreign state, that is to say, the said empire of Austria, were made, issued, negotiated, and circulated, and were lawfully current in the said foreign state, and that the said undertaliings for payment of money were, and each of them respectively was, during all the time aforesaid, made, issued, negotiated, and circulated, and were cur- rent as aforesaid, for payment of a certain amount of foreign money, that is to say, for payment of one piece of coin called a gulden of the currency of the said foreign state, to wit, the empire of Austria, the said piece of coin being lawfully current in the said foreign state, and being during all the time aforesaid of great value, to wit, each gulden being of the value of two shillings in English money, and each of the said undertakings for the payment of money being for the payment of one gulden. Whereupon A, &c. well knowing the premises, and whilst the said undertakings were so as aforesaid lawfully current in the said foreign state, on, &c. at, &c. wil- fully and feloniously, and without the authority of the said foreign state, and without lawful authority and without lawful excuse, did make upon a 1 Ante, § 342. & P' !!• For engraving on a plate parts 2 For having in possession plates for of a foreign promissory note in the foreign forging bank-bills, &c. see Rex v. Moses, 7 language, Reg. v. Faderman, 4 Cox C. C. Car. & P. 423 ; Rex v. Warshaner, 1 Moody, 359. 466 ; Rex V. Hannon, 2 Moody, 77, 9 Car. 259 § 480 SPECIFIC OFFENCES. [BOOK III. certain plate, to wit, a plate of glass, an undertaking for payment of money, to wit, for payment of one gulden, purporting to be one of the said under- takings for payment of money, of the foreign state aforesaid, to wit, the said empire of Austria, so made, issued, negotiated, and circulated, and law- fully current in the said foreign state as aforesaid ; against the peace, &c.' § 479. Attempts. — Utterings of forgeries,^ having them in pos- session with the intent to utter them,^ and possessing and making the implements for forgery,* already considered, are attempts and acts in the nature of attempt. No separate forms are here required.^ § 480. Practical Suggestions. — This chapter opened with prac- tical suggestions to the prosecuting officer, and they have been continued interspersed through the subsequent sections. Should the proposals for simplifj'ing the indictment be adopted, possibly a few courts may give more than an attentive ear to objections interposed on behalf of defendants. At all events, whatever form the pleader employs, he should qualify himself to sustain it by arguments and authorities before the court. And there can be no question of the success, on the whole, of these reformatory efforts, if duly seconded by prosecuting officers. It is the assur- ance of this which has induced the author not to encumber his pages with needlessly complicated and otherwise undesirable forms. Those who have occasion for them can find them in the places referred to in the notes. 1 Reg. V. Einaldi, Leigh & C. 330, 9 i Ante, § 478. Cox C. C. 391. And see Reg. v. Fader- ^ gge, for forms. The State v. Morton, man, supra. 8 Wis. 352 ; The State v. Watson, 65 2 Ante, § 460, 462, 466, and other Misso. 115, 117; The State K.Welsh, 3 places. Hawks, 404; Jett v. Commonwealth, 18 ' Ante, § 467. Grat. 933. For FORNICATION, see ante,-§ 147 et seq. FRAUDS, see Cheats at Common Law — False Pretences — Foegert — Feaudui-ent Conveyances, &c. FRAUDULENT BANKRUPTCY, see Bankruptcy, &c 260 CHAP. XXXVIII.] FEAUDULENT CONVEYANCES, ETC. § 481 CHAPTER XXXVIII. FRAUDULENT CONVEYANCES, SALES, AND CONCEALMENTS.^ § 481. Under 13 Eliz. c. 5. — This English statute, famous in civil jurisprudence and generally understood to be common law with us, after defining what civil effect shall be given to convey- ances made to hinder or defeat creditors, proceeds, in § 3, to make it, among other things, an indictable misdemeanor in "all and every the parties to such feigned, &c. conveyance, . . . and being privy and knowing of the same," to " wittingly and will- ingly put in ure, avow, maintain, and justify or defend the same " as being true " and upon good consideration." ^ These terms seem to imply that the party must perform some distinct act, or, at least, utter some words, subsequently to the transaction which is visited by the civil consequences defined in the preceding sec- tion, in order to incur the criminal liability. Indeed, they appear to make the crime consist in such act or words. But on this question, and on most others relating to the criminal part of this statute, we have no decisions. There is in Wentworth a form for the indictment, in substance, — That A, &c. B, &c. and C, &o. on, &c. at, &c. did wittingly and willingly put in use,' maintain, and justify as true, a certain covinous and fraudu- lent grant and conveyance of goods and chattels, bearing date * the thirty- first day of May, in the year, &c. and made between the said A, by the name and description of, &c.^ of the one part, and the said B, by the name 1 For matter relating to this title, see * This is an objectionable form of the Crim. Law, I. § 572 a. averment ; because, under it, the alleged ^ lb. ut sup. ; Cathcart v. Robinson, 5 time and the time in the written conveyance Pet. 264, 280 ; Gardner v. Cole, 21 Iowa, must exactly correspond or the variance 205 ; Robinson v. Holt, 39 N. H. 557. will be fatal. It is better to say simply, 2 "Use" is the word in Wentworth, made on such a day, and then the time laid perhaps by a misprint. But it is " ure " will not be material. Crim. Proced. I. in the statute, and in the indictment in Reg. § 486, 488 a. This form might be changed ». Smith, infra. I should employ the latter, to read, " entered into in writing on," &c. but undoubtedly either is good. ' Ante, § 94. 261 § 483 SPECIFIC OFFENCES. [BOOK III, and description of, &c. of the other part, to the end, purpose, and intent [to all of which the said A, B, and C were then and there privy and know- ing of the same '] to delay, hinder, and defraud one X, then being a cred- itor of the said A, of his just and lawful debt ; against the peace, &c.^ § 482. Our Similar Statutes. — Some of our States have statutes similar in purpose ; namely, making it punishable for a debtor fraudulently to put his property beyond the reach of creditors, or for another person to help him therein.^ Their terms are not quite uniform ; but the gist of the offence is some form of se- creting, so that it is held not to be within the New York statute for one to carry a watch in his pocket and refuse to surrender it to an attaching officer.* But the common method of secreting, aimed at by these statutes, is the conveying away or pledging of the property to defraud creditors. Now, — § 483. Indictment. — There must be an indebtedness, and the indictment must allege it. But the terms of the allegation may be general,^ as in the precedent under the statute of Elizabeth.^ Where the statutory words are "fraudulently mortgage, pledge, sell, alienate, or convey any of his real or personal estate amount- ing in value to the sum of one hundred dollars, ... to prevent the attachment or seizure of the same upon mesne process or execution," ^ it is believed to be good in averment to say, — That A, &c. on, &c. at, &c. being the owner of certain real estate there situate, consisting of a lot of land with a dwelling-house thereon, of the 1 This matter in brackets is not in the Massachusetts. — Stockwell v. Silloway, precedent before me, but without it one of 113 Mass. 384. the clauses of the statute would seem not Michigan. — People v. Detroit Police to be so distinctly covered as it ought. Justice, 41 Mich. 224. 2 6 Went. PI. 385., The only- other New Hampshire. — The State v. IjesMe, precedent on this statute known to me is 16 N. H. 93; The State ;;. Robinson, 9 the indictment in nine counts in Reg. v. Fost. N. H. 274 ; The State v. Marsh, 36 Smith, 6 Cox C. C. 31. It was held good. N. H. 196 ; The State v. Hunkins, 43 N. H. But it is needlessly long. It differs from 557. the form in the text chiefly by setting out New York. — People v. Morrison, 13 the particulars of the indebtedness of A to Wend. 399; People v. Underwood, 16 X, and describing more minutely the con- Wend. 546 ; Blason v. Bruno, 33 Barb. veyancc. Perhaps such averments are well 520 ; Loomis v. People, 19 Hun, 601. by way of caution, but I doubt their neces- » People v. Morrison, 13 Wend. 399. sity in strict law. 5 Loomis v. People, 19 Hun, 601 ; The 8 Concerning these statutes, their inter- State v. Robinson, 9 Fost. N. H. 274. pretation, and the procedure thereon, see, — 6 Ante, § 481. Illinois. — Stow v. People, 25 111. 81; ' The State v. Leslie, 16 N.H. 93. For Mathes u.'Dobschuetz, 72 111. 438. the similar New York statute see People v. Maine. — The State «. Chapman, 68 Underwood, 16 Wend. 546. Maine, 477. 262 CHAP. XXXVIII.] FRAUDULENT CONVEYANCES, ETC. § 485 value of more than one hundred dollars, to wit, of the value of two thousand dollars, and being then and there indebted to X [in the sum of one thou- sand dollars ■'], did then and there fraudulently sell, alienate, and convey the said real estate to Y, with the intent thereby to prevent the attachment and seizure of the same on mesne process, and on execution, for enforcing the payment of said indebtedness ; against the peace, &c.'' § 484. Selling, &c. Property Mortgaged, &c. — Different in pur- pose are statutes, prevailing in considerable numbers of our States, to punish the selling, removing, secreting, or the like, of real and personal property mortgaged or under a lien, or selling it without disclosing the facts. The terms of these provisions differ ; they sufficiently appear, with various constructions, in the cases cited in the note.^ If, by the terms of the statute, the offence consists in selling the mortgaged property for the purpose of hindering, delaying, or defrauding the mortgagee, a mortgagor does not commit it who, under the fairly induced belief that he has the consent of the mortgagee, makes the sale to pay the mortgage debt.* § 485. Indictment. — The indictment must cover the statutory language ; as, for example, aver the mortgage or other lien to be " in writing," if so is the statute.^ And it must cover the mean- ing of the statute ; as, by alleging that the mortgage or other lien is subsisting, or remains unsatisfied.^ Under a provision to punish one who, " with a fraudulent intent to place mortgaged 1 I should think this matter in brackets Wallace, 108 Mass. 12; Commonwealth ». might be deemed necessary in a State Williams, 127 Mass. 285 ; Commonwealth where a levy could not be made on real o. Harriman, 127 Mass. 287. property unless the judgment or execution Minnesota. — The State v. Ruhnke, 27 amounted to a specified sum. But in other Minn. 309. circumstances I can see no occasion for it. Missouri. — The State v. Jones, 68 Compare with the form ante, § 481. Misso. 197. 2 For other forms, see The State v. Les- North Carolina. — The State v. Pickens, lie, supra ; The State u. Robinson, supra ; 79 N. C. 652 ; The State v. B^rns, 80 N. C. The State v. Hunkins, 43 N. H. 557; 376. Loomis V. People, supra. Texas. — The State a. Small, 31 Texas, 8 Alabama. — Nixon v. The State, 55 184; The State w. Devereaux, 41 Texas, Ala. 120; Glenn !>. The State, 60 Ala. 104 ; 383; Robberson v. The State, 3 Texas Atwellw. The State, 63 .Ala. 61. Ap. 502; Moye u. The State, 9 Texas Arkansas. — Cooper v. The State, 37 Ap. 88. Ark. 412; Cooper t). The State, 37 Ark. * Atwellu. The State, 63 Ala. 61. And 421. see Commonwealth v. Harriman,127 Mass. Iowa. — The State v. Julien, 48 Iowa, 287. 445 ; The State v. Gustafson, 50 Iowa, 194; 5 Moye v. The State, 9 Texas Ap. 88. The State u. Stevenson, 52 Iowa, 701. ^ Satchell v. The State, 1 Texas Ap. Massachusetts. — Commonwealth v. 438 ; The State v. Burns, 80 N. C. 376. Brown 15 Gray, 189 ; Commonwealth v. See The State v. Gustafson, 50 Iowa, 194. 263 § 486 SPECIFIC OFFENCES. [BOOK III. personal property beyond the control of the mortgagee, removes or conceals, &c. the same," ^ the indictment may charge, — That A, &c. on, &c. at, &c. did mortgage to X, in due form of law, one horse, &c. [setting out the mortgaged property], and that afterward, on, &c. [the pleader will commonly elect to make this date subsequent to the other if the fact is so, though doubtless this is not necessary], at, &c. the said mortgage being in full force and the said X remaining the owner thereof, he the said A did, to cheat and injure the said X, fraudulently remove and conceal the said mortgaged personal property, with the fraudulent intent to place the same beyond the control of the said X ; against the peace, &c.^ § 486. Conveying Land without Title. — A statute subjecting to imprisonment one who " knowingly sells or conveys any land, or any interest therein, without having title to the same, either in law or equity, by descent, devise, written contract, or deed of conveyance, with intent to defraud," applies as well to lands lying without as within the State. The indictment may aver, — That A, &c. on, &c. at, &c. did, with intent to defraud X, knowingly sell and convey to him, by deed, a certain tract of land, &c. [describing it], situate at, &c. he the said A not then and there having, and know- ing himself not then and there to have, title to the same in law, or equity, by descent, devise, written contract, or deed of conveyance ; against the peace, &c.' 1 Mass. Gen. Stats, c. 161, § 61. So is the indictment in Glenn v. The 2 Partly following the precedent in Com- State, 60 Ala. 104-. And for other forms monwealth v. Wallace, 108 Mass. 12. And see Nixon u. The State, 55 Ala. 120 ; At- see, for other forms, Satchell u. The State, well u. The State, 63 Ala. 61. The Iowa snpra ; Cooper v. The State, 37 Ark. statute differs from the others considered 412; Cooper v. The State, 37 Ark. 421; in this connection. It is: "If any mort- The State u. Ruhnke, 27 Minn. 309 ; The gagor of personal property, while his mort- State V. Devereaux, 41 Texas, 383 ; The gage of it remains unsatisfied, wilfully State V. Pickens, 79 N. C. 652. For giv- destroy, conceal, sell, or in any manner dis- ing a deed without mentioning incum- pose of the property covered by such mort- brance. Commonwealth v. Brown, 1 5 Gray, gage, without the consent of the then 189 ; Commonwealth v. Williams, 127 holder of such mortgage, he shall be Mass. 285 ; The State v. Jones, 68 Misso. deemed guilty of larceny and punished ac- 197. In Alabama it satisfies the code to cordingly." For a form under it, see The allege, — State v, Gustafson, 50 Iowa, 194. And That, before the finding of this indictment, 'f ^he State v. Julien. 48 Iowa, 445. A, &c. did remove, conceal, or sell a horse, -'^"° consult the Utle Embezzlement, the personal property of, &c. for the purpose ante, § 40 1 et seq. of hindering, delaying, or defrauding the " Kerr v. The State, 36 Ohio State, said, &o. who had a claim to said horse, under 614, 621. " Or," not " and," is the proper a written instrument, to wit, a mortgage; conjunction in these negative averments, against the peace, &c. Ante, § 124 and note. 264 CHAP. XXXYIII.] FRAUDULENT CONVEYANCES, ETC. § 487 § 487. Twice Selling Land. — Under a statute to punish one who, " after once selling," &c. any land, " shall again knowingly and fraudulently sell, &o. the same tract or tracts of land, &;c. to any other person or persons for a valuable consideration," the indictment may charge, — That A, &c. on, &c. at, &c. did bargain, sell, and convey to M three tracts of land, &c. [describing them] ; whereupon he the said A did after- ward, on, &c. at, &c. with the intent to cheat and defraud X, knowingly and fraudulently bargain, sell, and in form of law convey to the said X, for a valuable consideration, to wit, for two thousand dollars, paid by the said X to the said A, the same tracts of land ; against the peace, &c.^ 1 People V. Garnett, 35 Cal. 470. For FRAUDULENT INSOLVKNCY, see Bankruptcy and Insolvency. FUEIOUS DRIVING, see Hoksb-kacing, &c. GAME, see Fish and Gaub. 265 § 489 SPECIFIC OFFE\CES. [BOOK III. CHAPTER XXXIX. GAMING.^ § 488. Elsewhere. — 111 this volume, and in the other volumes of the series, the nuisance of keeping a gaming-house is treated of under a separate title from Gaming. Its treatment consti- tutes, in the present volume, a sub-title under " Nuisance." § 489. Formula for Indictment. — The statutes are SO diverse as to render any formula for the indictment on them unavailing to the practitioner except in the way of general suggestion. Therefore only an incomplete outline will be attempted, so that the pleader's resort will be chiefly to the special forms further on. The allegations may be, — That A, &c. [ante, § 74^77], on, &c. at, &c. [ante, § 80], did unlaw- fully ^ play at a certain game of cards ' [or, &c. following the statutory terms] for money ,^ &c. [follow here also the statutory words], with X ° [or, did win, &c. or fraudulently win, &c. or lose, &c. following the statute ; or, did bet, &c. on the hands and games, &c. following the statute ; or, having under his control a certain building, &c. did nnlawfully suffer and permit, &c. therein, &c. pursuing the statutory terms ; or, &c. following whatever other statutory provision is being proceeded upon, and expanding the allegation beyond the words when the rules of good pleading require *j ; against the peace, &c. [ante, § 66-69].' 1 For the direct expositions of this * Stat. Crimes, § 901. offence, with the pleading, practice, and ' The name of the person played with evidence, see Stat. Crimes, § 844-930. not universally held to be necessary. Stat. Incidental, Crim. Law, I. § 504 ; Crim. Crimes, § 894. Proced. I. § 241, 374, 476, 639, note, 641, « Stat. Crimes, § 909. note; Stat. Crimes, § 55, 135, 221, 294, ' For forms, see Archb. Crim. PI. & Et. 298, 299, 936. And see the title Gaming- 19th ed. 989 ; 5 Cox C. C. App. 47; 3 HOUSE, in this volume it is a sub-title under Chit. Crim. Law, 677-681; 4 VV'ent. PI. Nuisance. 355 ; 6 lb. 383, 391, 432 ; Fowler v. Alsop, 2 Here the offence is assumed to be, Trem. P. C. 263 ; Kex <;. Clarke, Cowp. what it generally is, a misdemeanor. Stat. 35; Eex v. Darley, 4 East, 174; Reg. w. Crimes, § 880. If it is felony, add " and Bailey, 4 Cox C. C. 390 ; Reg. v. Moss, feloniously." Dears. & B. 104, 7 Cox C. C. 200 ; Morley 8 As to naming the game, &c. see Stat. . Ames, 10 Misso. 743 ; The State V. Kesslering, 12 Misso. 565 ; The State «. Nelson, 19 Misso. 393, The State v. Ful- ton, 19 Misso. 680, The State v. Flack, 24 Misso. 378 ; The State v. Scaggs, 33 Misso. 92 ; The State v. Stogsdale, 67 Misso. 630. JVew Hampshire. — The State «. Leigh- ton, 3 Fost. N. H. 167 ; The State «. Stearns, 11 Fost. N. H. 106 ; The State v. Prescott, 33 N. H. 212. New Mexico. — Territory v. Copely, 1 New Mex. 571. NoHh Carolina. — The State o. Hix, 3 Dev. 116; The State u. Ritchie, 2 Dev. & 267 §491 SPECIFIC OFFENCES. [book III. money," and another statute having declared it to be sufficient for the indictment to charge the general name of the game with- out saying against whom the defendant played, it was adjudged adequate simply to aver, — That A, &c. on, &c. at, &c. did play at a game at cards for money ; ^ against the peace, &c.^ § 491. As to which —Another. — Without the aid of the stat- ute simplifying the indictment, it is believed that a form which thus omits to state the nature of the game, with whom played, or in any other way to identify the particular instance, would be too meagre ; though the mere omission of the name of the person played with, where there was other adequate identifying matter, would not, before all courts, be fatal.^ Under the statutory words " play at any game whatsoever, for any sum of money, or other property of any value," an indictment omitting the name of the person played with, but with other particularizatiou, was sus- tained. Thus, — Bat. 29 ; The State v. Terry, 4 Dev. & Bat. 185; The State w. Langford, 3 Ire. 3.54. Ohio. — Davis v. The State, 7 Ohio, 204; Davis u. The State, 19 Ohio State, 270 ; Carper v. The State, 27 Ohio State, 572 ; Davis v. The State, 32 Ohio State, 24 ; Koberts v. The State, 32 Ohio State, 171. Oregon. — Tlie State v. Carr, 6 Oregon, 133 ; The State v. Gitt Lee, 6 Oregon, 425. Pennsyhama. — Commonwealth v. Car- son, 6 Philad. 381. Rhode lUand. — The State v. Melville, U R. 1.417. Tennessee. — Dean v. The State, Mart. & Yerg. 127 , Johnston v. The State, Mart. & Yerg. 129; Anthony o. The State, 4 Humph. 83 ; The State c. McBride, 8 Humph. 66 ; Johnson u. The State, 4 Sneed, 614. Texas. — Bailey v. The State, 2 Texas, 202 ; The State v. Ward, 9 Texas, 370 ; Royal V. The State, 9 Texas, 449 ; Barker V. The State, 12 Texas, 273; The State v. Lopez, 18 Texas, 33 ; The State v. Blair, 41 Texas, 30, 31 ; The State v. Bullion, 42 Texas, 77 ; Reed v. The State, 1 Texas Ap. 1 ; Chiles v. The State, 1 Texas Ap. 27, 28 ; Sheppard v. The State, 1 Texas 268 Ap. 304 ; Ben v. The State, 9 Texas Ap. 107, 108; Anderson, w. The SUte, 9 Texas Ap. 177 ; Harris v. The State, 9 Texas Ap. 308 ; O'Brien v. The State, 10 Texas Ap. 544 i Scribner v. The State, 12 Texas Ap. 173 ; Reeves u. The State, 12 Texas Ap. 199 ; Wallace v. The State, 12 Texas Ap. 479. Virginia. — Commonwealth ,;. Offener, 2 Va. Cas. 17 ; Roberts v. Commonwealth, 10 Leigh, 686 ; Day i'. Commonwealth, 23 Grat. 915 ; Loath v. Commonwealth, 32 Grat. 873 ; Nuckolls v. Commonwealth, 32 Grat. 884. Wisconsin. — Gallagher v. The State, 26 Wis. 423. Wyom.ing, — Fields u. Territory, 1 'Vfy. Ter. 78. United States. — District -of Columbia. United States u. Simms, 1 Cranch C. C. 252. ^ Money. — As to alleging the thing played for to be " money," see ante, § 248 and note, 250, notes, 395 and note; Stat. Crimes, § 874, 898, 899, 901. 2 Johnston v. The State, 7 Sm. & M. 58. And compare with form in Strawheu V. The State, 37 Missis. 422, 426 ; People u. Saviers, 14 Cal. 29, ' Stat. Crimes, § 894-897, 922, 923, 925. CHAP. XXXIX.] GAMING. § 494 That A, cfec. on, &c. at, &c. did unlawfully play ' at a certain game called poker, for a large sum of money,^ to wit, for the sum of two dollars, by means of a certain gaming device, to wit, a pack of cards ; against the peace, &c.^ § 492. Playing for " Valuable Tiling." — Under a statute which " makes it a penal offence for any person to play for money or other valuable thing at any game with cards, dice, checks, or at billiards," if the things played for were checks practically but not legally redeemable,* the allegations may be, — That A, &c. on, &c. at, &c. did unlawfully play at a game of billiards [with, &c.*] for certain checks and promissory notes, payable and redeem- able, &c. the same being then and there valuable things, of the value of, &c. ; against the peace, ifec." §493. In Particular Place — ("Public Place" — "Storehouse," &c.). — How the place should be described we saw elsewhere.^ The form may be, — That A, &c. on, &c. at, &c. did, &c. [setting out the offence as in the last three forms], in a certain highway there [or, in a certain storehouse there ; or, in a certain outhouse there ; or, in a storehouse there wherein then and there spirituous liquors were sold ; or, in the public place and room in the City Hall there wherein the mayor and aldermen habitually meet for the transaction of public business ; or, &c. varying the allegation with the statute and the particular facts] ; against the peace, &c.^ § 494. Professional Gambler — (Habitual Gaming, &o.). — The statutes creating this offence ^ are in varjdng terms. Under the provision that one who " shall, &c. or shall frequent any place 1 In the atsence of any decision in the The State v. Atkyns, 1 Ala. 180; Burdine particular State, it will be safer to insert v. The State, 25 Ala. 60. In Alabama, the here " with X." Stat. Crimes, § 894, 923. Code permits forms which would be wholly 2 See the note to the last section. inadequate under the common-law rules. 8 Roberts v. The State, 32 Ohio State, -Thus, in this case of Burdine v. The State, 1 71. And for other forms on similar stat- it was adjudged good to say, — utes, see Rex v. Clarke, Cowp. 35 ; Rob- ^j^^j j^^ ^(, ^^^ g^ ^^_ before the finding erts V. Commonwealth, 10 Leigh, 686; of this indictment, at, &c. played at a game Royal V. The State, 9 Texas, 449. ^ith cards, or dice, or at some device or sub- * Stat. Crimes, § 875, 900. stitute therefor, at a tavern, inn, storehouse 6 See note to the last form. for retailing spirituous liquors, or house or 6 Gibbons v. People, 33 111. 442. place where spirituous liquors were, at the ' Stat. Crimes, § 902-906. time, retailed or given away, or at a public 8 For forms, see The State v. Ward, 9 house, highway, or at some other public place, Texas, 370 ; The State v. Lopez, 18 Texas, ^^ J^,^^",^ '^^^f &"„''"^ '""'"' ""^^'^ ' 33; Sheppard v. The State, 1 Texas Ap. «g«'°=' """ P^'"='=' *'''• 304; Scribner v. The State, 12 Texas Ap. 9 Stat. Crimes, § 853, 854, 879. 173; Coggins v. The State, 7 Port. 263; 269 § 496 SPECIFIC OFFENCES. [BOOK III. where gambling is permitted, shall be deemed a professional gambler," it is not necessary for the indictment to aver the con- clusion of law that the defendant became a professional gambler.^ It may charge, — That A, &c. on, &c. [as at ante, § 80, and, if the pleader chooses, with the continuando as at ante, § 83], at, &c. did [for the purpose of gaming with cards ^], unlawfully frequent a certain room occupied by X, in a build- ing called the M House, in which room gambling was there [during all the time aforesaid, ante, § 84] permitted and carried on ; against the peace, &c.» §495. Another — (Common Gambler). — Under the provision that one " who shall be guilty of dealing faro, or banking for others to deal faro, or acting as lookout, game-keeper, or assistant for the game of faro, or any other banking game where money or property is dependent on the result, shall be taken and held to be a common gambler," it is goo.d to allege, — That A, &c. on, &c. at, &c. did deal faro, a certain banking game where money and other property were then and there dependent on the result [whereby, and by force of the statute in such case made and provided, the said A was then and there taken and held to be a common gambler *] ; against the peace, &c.* ^ § 496. Fraudulent ■Winning. — The elements of the indictment under the statute of Anne are stated elsewhere.® There are statutes in terms somewhat different ; as, for example, 8 & 9 Vict. c. 109, § 17, provides, among other things, that one who " shall, by any fraud or unlawful device or ill practice in playing at or with cards, dice, tables, or other game, . . . win from any other person, to himself or to any other or others, any sum of money or valuable thing, shall be deemed guilty of obtain- ing such money or valuable thing from such other person by a false pretence, with intent to cheat or defraud such person of the same ; and, being convicted thereof, shall be punished accord- 1 Crim. Proced. I. § 515 ; post, § 496. * This matter in brackets is in the form 2 These words are in the form before me, before me. That it is not necessary, see but I doubt their necessity. One would ante, § 494 and note. seem to be within the statute who should ^ xhe State v. Melville, U R. I. 417. frequent the place as a mere looker-on. e gt^t Crimes, § 885. And see further, 8 Howard v. The State, 64 Ind. 516; for forms, ante, § 274 ; 6 Went. PI. 391, The State ... Thomas, 50 Ind. 292. For 392 ; 3 Chit. Crim. Law, 678-681 ; 5 Cox other forms, see Hamilton v. The State, 25 C. C. App. 47. Ind. 426 ; The State b. Allen, 69 Ind. 124. 270 CHAP. XXXIX.] GAMING. § 499 ingly." There are precedents ^ for weaving into the indictment this false pretence clause as the larceny clause is woven into the indictment for embezzlement.^ But there is no just ground for requiring this, and forms without it have been sustained,^ and beyond reasonable question they are in principle goo'd.^ The averments may be, — That A, &c. on, &c. at, &c. did, by fraud, unlawful device, and ill prac- tice in playing at and with cards, unlawfully win from one X, to a certain person whose name is to the jurors unknown, a certain sum of money [of the property of the said X "], with intent to cheat him the said X of the same [to the great damage of the said X, to the evil example of all others in the like case offending^] ; against the peace, &c.' § 497. Losing or 'Winning. — Some of the statutes, excluding the element of fraud, make punishable, for example, one " who shall, by playing or betting at or upon any game or wager what- ever, either lose or win any article of value." And it is good in averment to say, — That A, &c. on, &c. at, &c. did unlawfully win [or lose] of [or to] one X a certain hat of the value of three dollars, by then and there unlawfully betting and wagering the same against another hat upon a game of tenpins then and there had and played between the said A and the said X ; against the peace, &c.' §498. Same at one Sitting, &c. — sufficiently explained else- where.^ § 499. Keeping Gaming Device. — There are statutes, in various terms, to punish this sort of offence. The indictment need only cover the words and meaning of the particular enactment ; ^° as, for example, under the phrase " shall be the keeper of any gaming apparatus for the purpose of winning or gaining any article of value," the allegations may be, — 1 Archb. Crim. PI. & Ev. 19th ed. 989; ' Reg. v. Moss, supra. And for other Reg. V. Bailey, i Cox C. C. 390. forms, see the places already referred to in 2 Ante, § 401-403. this section. Massachusetts statute and " Reg. V. Moss, Dears. & B. 104, 7 Cox form, Commonwealth v. Parker, 117 Mass. C. C. 200. 112 ; Fitzgerald v. Commonwealth, 135 * Ante, § 494 ; Crim. Proced. II. § 318, Mass. 266. and the places there referred to. ^ Mount v. The State, 7 Ind. 654 ; Web- 5 Some may deem these words in ster v. The State, 8 Blackf. 400. brackets to be necessary. The indictment ' Stat. Crimes, § 887 ; and, for other in Reg. v. Moss, supra, was objected to forms for this, see 4 Went. PI. 355 ; 6 lb. after verdict for not containing them, but 383 ; 3 Chit. Crim. Law, 679, 680. the court overruled the objection. i" Stat. Crimes, § 890. » Not necessary. Ante, § 48. 271 § 503 SPECIFIC OFFENCES. [BOOK III. That A, &c. on, &c. at, &c. did unlawfully [and feloniously] keep a cer- tain gaming apparatus, commonly called a wheel of fortune, then and there to play for, win, and gain money and other articles of value, by then and there playing a certain game commonly called a game of fortune ; against the peace, &c.^ § 500. Another. — Or the allegation, if so it covers the statu- tory words, may be, — That, &c. [as above] unlawfully did permit a certain gambling device called a pack of cards, being a gambling device adapted, used, and designed for playing games of chance for money and other property, &c. , against the peace, &c.^ § 501. Another. — Or, under the statutory expression " keeping any E O table, or any other kind of gaming table (billiard tables excepted) at which the game of faro, equality, or any other game of chance shall be played for money," the averments, by implica- tion negativing the exception of the statute, will suffice, — That A, &c. [as above] unlawfully did keep a certain gaming table called a faro table, at which gaming table so unlawfully kept the game of faro was then and there unlawfully played for money ; against the peace, (fee." § 502. Another. — Or, under a statute differently expressed, — That A, &c. [as above] unlawfully did keep and exhibit gaming tables called A B C or E O tables, faro bank, wheel of fortune, keno table, and tables of the like kind being under denominations to the jurors unknown, the games played on said tables being then and there played with cards ; against the peace, &c.* § 503. Permitting Gaming. — This form of the offence rests on variously worded statutes ; ^ as, for example, making it a misde- 1 The State u. Thomas, 50 Ind. 292. Trem. P. C. 263 ; Commonwealth v. Mon- For other forms, see places referred to post, arch, 6 Bush, 298 ; Montee v. Common- § 502, note. wealth, 3 J. J. Mar. 132 ; The State v. 2 The State v. Scaggs, 33 Misso. 92. Hope, 15 Ind. 474; The State v. Ames, 10 For other forms, see places referred to post, Misso. 743; The State v. Kesslering, 12 § 502, note. Misso. 565 ; The State v. Nelson, 19 Misso. 8 The State v. Price, 12 Gill & J. 260. 393; The State v. Fulton, 19 Misso. 680 For other forms, see places referred to post, Davis u. The State, 19 Ohio State, 270 § 502, note. Harris v. The State, 9 Texas Ap. 308 * Leath v. Commonwealth, 32 Grat. Davis v. The State, 32 Ohio State, 24 873. And, for other forms similar to these Reeves v. The State, 12 Texas Ap. 199 four, see Baker v. The State, 2 Har. & J. Gallagher v. The State, 26 Wis. 423 ; The 5 ; Sumner v. The State, 74 Ind. 52 ; The State v. Whitworth, 8 Port. 434 ; Coin- State V. Stogsdale, 67 Misso. 630; Terri- monwealth v. Tilton, 8 Met. 232. tory V. Copely, 1 New Mex. 571 ; The State » Stat. Crimes, § 889-892, 895. V. Newton, 59 Ind. 173; Fowler v. Alsop, 272 CHAP. XXXIX.] GAMING. § 505 meanor for one to "permit or suffer any person, in any house, shop, or other place under his control or care, to play at cards, faro, roulette, equality, or other game, for money or other thing." Upon these statutory terms the indictment may allege, — That A, &c. on, &c. at, &c. did, in a certain house [or shop, or tent, &c.] there, and then under his control and care, permit and suffer X, Y, Z, &c. [or, divers persons to the jurors unknown ; or, X, Y, and divers other persons to the jurors unknown] to play [proceeding to state the facts of the particular case in the statutory language ; as] at cards, dice, dominoes, and other games for money, cigars, beer, and other things ^ [or, under a statute differently worded, X to keep and exhibit a certain gaming bank, commonly called a chuck-luck bank, for the purpose of gaming and obtaining bets thereon ; ^ or, a certain gambling device, commonly called pico, adapted, devised, and designed for playing a game of chance at which money and other property may be won and lost ; ' or, a certain gambling device commonly called cards, adapted, devised, and designed for the purpose of playing at games of chance for money and other property, and did then and there knowingly, wilfully, and unlawfully suffer games of chance to be played at and upon said gambling device for money and other property, upon which said games money was then and there bet, won, and lost *] ; against the peace, &c.* § 504. Minors to play. — The indictment for permitting minors to play at games on one's premises or appliances will follow these forms, adding the averment of their minority.^ § 505. Minors to congregate. — Under a provision to punish 1 The State jj. Kaufman, 59 Iowa, 273. State, 4 Port. 186. Massachusetts. — And for other forms see The States. Book, Under some Massachusetts statutes, ditfer- 41 Iowa, 550; The State v. Middleton, 11 ing more or less from those on which the Iowa, 246. foregoing forms are constructed, precedents 2 Reed t'. The State, 1 Texas Ap. 1 ; may be fovind in the following cases : The State u. Bullion, 42 Texas, 77 ; O'Brien Commonwealth v. Bnlkom, .3 Pink. 281; V. The State, 10 Texas Ap. 544; Wallace Commonwealth «. Arnold, 4 Pick. 251 ; V. The State, 12 Texas Ap. 479. Commonwealth v. Coding, 3 Met. 130 ; " Euper V. The State, 35 Ark. 629; Commonwealth u. Rtowell, 9 Met. 572; Brockway v. The State, 36 Ark. 629. Commonwealth u. Drew, 3 Cush. 279 ; * The State v. Mitchell, 6 Misso. 147; Commonwealth o. Pattce, 12 Cush. 501; The State u. Pulton, 19 Misso. 680. Commonwealth v. Colton, 8 Gray, 488; s For other forms, see Rice v. The State, Commonwealth v. Crawford, 9 Gray, 128. 3 Kan. 141, 156; Brown (>. The State, 40 « And, for more specific directions, see Ga. 689; United States u. Simms, 1 Stat. Crimes, § 889. -For forms, see Powell Cranch C. C. 252 ; Day v. Commonwealth, v. The State, 62 Ind. 531 ; Moore o. The 23 Grat. 915 ; Davis v. The State, 7 Ohio, State, 65 Ind. 213 ; Ready v. The State, 204 ; Commonwealth w. Perripo, 3 Met. 62 Ind. 1 ; The State v. Ward, 57 Ind. Ky. 5 ; Mclnnis v. The State, 51 Ala. 23 ; 537 ; Hanrahan v. The State, 57 Ind. 527 ; The State v. Pancake, 74 Ind. 15 ; Hamil- Donniger v. The State, 52 Ind. 326; Silies ton V. The State, 75 Ind. 586 ; Campbell v. The State, 67 Ala. 77. u. The State, 55 Ala. 89 ; Covy u. The 18 273 ■§ 606 SPECIFIC OFFENCES. [BOOK III. " any person, owning or having the care, management, or control of any billiard table or tables, bagatelle table or pigeon-hole table kept in any saloon, hotel, or other public place, who shall suffer or permit minors to congregate at, in, and about such place where such billiard table or tables, bagatelle table, or pigeon-hole table maj' be kept," the allegations may be, — That A, &c. on, &c. [adding the continuando as at ante, § 83, or not, as the pleader chooses '], at, &e. having the care, management, and control of certain billiard tables then and there kept in a public billiard hall, did then and there unlawfully suffer and permit X, Y, Z, &c. persons who then and there were severally minors under the age of twenty-one years, to then and there unlawfully congregate, at, in, and about said public billiard hall, wherein said billiard tables were so kept ; against the peace, &c.^ § 506. Betting on Games, &c.^ — Under a statute which, after forbidding people to " set up, keep, or exhibit any gaming-table or gambling device, commonly called A B C, E O, roulette, rouge et noir, or any faro-bank," &c., makes it a misdemeanor for any person to bet " on any of the games " thus prohibited, the allega- tions may be, — That A, &c. on, &c. at, &c. did unlawfully bpt [with X ^] one dollar in money, and other things then and there treated as money ° \_or ten checks of the representative value of five dollars, or one hat of the value ' of five dollars], upon a certain gambling device then and there exhibited, com- monly called a faro-bank [or, under a statute differently worded, upou a certain game of cards, &c.' then and there being played between M and N '] ; against the peace, &c.' 1 Ante, §81. Hunn, 34 Ark, 321, 322; Orr v. The 2 Manheim v. The State, 66 Ind. 65. State, 18 Ark. 540 ; Moffatt v. The State, 8 And compare with ante, § 395-398. 6 Eng. 169; Hany v. The State, 4 Eng. For explanations, see Stat. Crimes, § 918- 193; Graham y. The State, 1 Pike, 171, 926. 1 "3 ; Iseley v'. The State, 8 Blackf. 403 ; * Required in only a part of the States. The State v. Nichols, 5 Iowa, 413 ; The Stat. Crimes, § 923. State v. Ames, 1 Misso 524 ; The State s Ante, § 248 and note, 395 and note. v. Kyle, 10 Misso. 389 ; Johnston <.. The ^ As to the necessity of alleging value, State, Mart. & Yerg, 129; Anthony v. see ante, § 395 and note. The State, 4 Humph. 83; The State v. 1 Stat. Crimes, § 926. McBride, 8 Humph. 66 ; Johnson v. The " Not necessary in all circumstances, or State, 4 Sneed, 614 ; Bailey v. The State, in all the States, to name the players. 2 Texas, 202; Barker v. The State, 12 -Stat. Crimes, § 894. Texas, 273; Chiles a. The State, 1 Texas ' For various forms under the differing Ap. 27, 28 ; Ben v. The State, 9 Texas statutes, see Warren v. The State, 18 Ark. Ap. 107, 108 ; Anderson v. The State, 9 195 ; The State v. Holland, 22 Ark. 242 ; Texas Ap. 177 ; Commonwealth v. Offener, Drew V. The State, 5 Eng. 82 ; Cohen v. 2 Va. Cas. 17. Alabama.— The Alabama Xhc State, 32 Ark. 226 ; The State v. statutes permit forms which do not satisfy 274 GHAP. XXXIX.] GAMING. §50f § 507. other Forms — will be required in practice, but none which cannot readily be constructed from the foregoing models.^ the common-law rules. They may be seen in Rodgers v. The State, 26 Ala. 76 ; Es- lava V. The State, 44 Ala. 406, 408 ; Schus- ter V. The State, 48 Ala. 199; Napier v. The State, 50 Ala. 168 ; Ray v. The State, 50 Ala. 172 ; Jacobson v. The State, 55 Ala. 151 ; Mitchell v. The State, 55 Ala. 160. 1 tTnlicensed. — For keeping a bowling alley, without license, contrary to a city ordinance, The State v. Steams, 11 Fost. N. H. 106. Dealing the Game. — People V. Saviers, 14 Cal. 29 ; Brown v. The State, 40 Ga. 689. On Sunday. — Under the title Lord's Day. Assisting in Cook-flght- ing. — Morley v. Greenhalgh, 3 B. & S. 374. Assault — on account of money won at gaming, Rex v. Darley, 4 East, 1 74. Proceedings for Forfeiture — of gaming implements. Commonwealth v. Gaming Implements, 119 Mass. 332. For GAMING-HOUSE, see Nuisance. GRAND LARCENY, see Laecent. GRAVEYARD, see Sepulture. HARBORING, see ante, § 114, 118, 122. 275 § 510 SPECIFIC OFFENCES. [BOOK III. CHAPTER XL. HAWKEKS AND PEDDLEBS.* § .508. Diversities and the Consequence. — The statutes prohib- iting unlicensed hawking and peddling, and the proceedings upon them, are in our various States so diverse as to render hopeless any attempt to aid the practitioner by general forms. All that can be profitably done under this head is embodied in the expla- nations in " Statutory Crimes." § 509. Forms — may be found at the places referred to in the note .2 § 510. Practical Method. — One having occasion to proceed on a statute of this sort will do best to lay it before him, and with it any forms which the reports of his own State contain, as cited in the note to the last section ; then let him carefully read the chap- ter entitled "Hawkers and Peddlers" in " Statutory Crimes." If thereupon he follows the directions given in an early chapter of this volume,^ he will encounter no difficulties. * For the direct expositions of the of- Indiana. — Alcott v. The State, 8 fence of unlawful hawking and peddling, Blackf. 6. with the pleading, practice, and evidence, Iowa. — The State w. Doe, 50 Iowa, 541. see Suit. Crimes. § 1071-1088. Incidental, Massachusetts. ' — Commonwealth v. lb. § 210. Ober, 12 Cush. 493 ; Commonwealth v. 2 Bum Just. Hawkers and Peddlers; Bruckheimer, 14 Gray, 29. Rex V. Little, 1 Bur. 609 ; Rex c. Selway, South Carolina. — The State v. Powell a Chit. 522. 10 Rich. 373. .d/aftama. — Hirschfelder v. The State, rcimessee. —The States. Moore, Meigs, 18 Ala. 112 ; Sterne v. The State, 20 Ala. 476 ; The State v. Sprinkle, 7 Humph. 36. 43; Seymour w. The State, 51 Ala. 52. PFisconsm. — Morrill v. The State, 38 Arkansas. — The State v. McGinnis, 37 Wis. 428. Ark. 362. s Ante, § 9-36. 276 CHAP. XLI.J HRALTH REGULATIONS. § 513 CHAPTER XLI. HEALTH BEGULATIONS.l § 511. Elsewhere. — Most of what might properly be placed under this head is considered under other titles ; as, " Noxious and Adulterated Food," " Nuisance," and the like. § 512. Board of Health Order. — We have the form of an in- dictment for disobeying the order of a board of health to remove a nuisance detrimental to the public health. But it need not be transferred to these pages ; for it will seldom be wanted, and it can be readily consulted in its original place.^ § 513. Breach of Quarantine. — An English precedent, which the American practitioner can readily adapt to the particular facts and law of his case, is, — That on, &c. au order was made by the King in council whereby it was ordered, that, if any pilot or other person should go on board of any ship or vessel obliged to perform quarantine, such pilot or other person should perform quarantine in like maimer as any person coming in such ship or vessel should be obliged to perform the same ; that the said order was pub- lished, &c. and has ever since been in force ; that, after such making and publishing of said order, A, &c. on, &c. at, &c. well knowing the premises [but having no regard to the laws and statutes of this realm °], [with force and arms ^] went on board a certain ship called the Stephen, which was then obliged to perform quarantine, in order to conduct the same into the port of Bristol, and did not perform quarantine in like manner as any per- son coming in the said ship was obliged to perform the same, but did [with force and arms], on, &c. at, &c. unlawfully quit the said ship by going on board a certain other vessel, in a certain place within his Majesty's do- minions before the aforesaid ship Stephen had fully performed and been discharged from such quarantine ; he the said A not being in any manner or in any case, or by any license, directed or permitted by any order made by his Majesty in council so to do ; against the peace, &c.* 1 Critn. Law, I. § 489^94. * Unnecessary. Ante, § 43. 2 Eeed v. People, 1 Parker C. C. 481. * 2 Chit. Crim. Law, 551 ; Rex v. Har- 8 Not necessary. Ante, § 45. ris, 4 T. R. 202, 2 Leach, 4th ed. 549. Ae 277 I 614 SPECIFIC 0PPE1NCE8. [BOOK III. § 614. Not Vaccinating. — There are statutes in England and generally in our States, making it penal for parents and others having the care of children to neglect or refuse to have them vaccinated. We appear to have no American precedents for the indictment or complaint. By construction of the English enact- ments, a person who has been once convicted and has paid his fine is not liable to a second prosecution in respect of the same child. The allegations, under complicated provisions which it is not necessary here to recite, may be, — That A, &c. on, &c. at, &c. being then and there the father of a child called X, born after, &c. to wit, on, &c. unlawfully did not, within three calendar months after the birth of the said child, take or * cause to be taken the said child, the same not having been previously vaccinated by some duly qualified medical practitioner, to one of the medical officers duly aippointed in that behalf in M aforesaid, for the purpose of being vaccinated, slccording to the provisions of the statute in such case made and ordained, although one O, the late registrar of births in said M, did, on the registra- tion of the birth of the said child, to wit, on, &c. give due notice in writing to the said A in manner and form directed by the said statute ; against the peace, &c.^ to the Mississippi statute, see Bloom v. The not " and," because the allegation is nega- State, 57 Missis. 752. tive. Ante, § 97, note, 420 and note. 1 " Or" is the proper conjunction here, ^ piicher v. Staflford, 4 B. & S. 775. For HIGH TREASON, see Tbeasow. HIGHWAY, see Wat. 278 CHAP. XUI.j HOMICIDE — SUBSTANTIVE. § 516 CHAPTER XLII. HOMICIDB, THE SUBSTANTIVE FELONY OF.^ § 515. Introduction. 516-540. Indictment under Common-law Rules. 541-546. Same as modified by Statutes. 547, 548. Practical Suggestions. § 515. How Chapter divided. — We shall consider, I. The In- dictment under the Common-law Rules, both for the Common- law and for the Statutory Offence ; II. The Indictment as modified by Statutes ; III. Practical Suggestions. I. The Indictment under the Common-law Rules. § 516. Degrees. — There are, at the common law, two degrees of felonious homicide ; and, under statutes prevailing in consid- erable numbers of our States, there is an additional degree, making in all three degrees. Only these three need be men- tioned here, though in two or three exceptional States there are still other degrees. Speaking in general terms and without re- ferring to possible statutory exceptions, these three degrees con- sist of what in olden times was simply felonious homicide, or manslaughter, — a purely common-law offence. A statute, now woven into the common law and become parcel of it, elevated to "murder" such of these felonious killings as proceeded from 1 For the direct expositions of this of- 808, 811, 843-877, 883, 968, 988, 1004, fence, with the pleading, practice, and evi- 1005, 1053, 1056, 1058, 1059, 1061; II. dence, see Crim. Law, IL § 613-738 ; § 56, 311 ; Crim. Proced. I. § 50-53, 102, Crim. Proced. II. § 495-642 ; Stat. Crimes, 104-106, 108, 159, 162, 374, 392, 470, 542, § 46.5-477. Incidental, Crim. Law, L 548, 5i>3, 914, 959 d, 966 c, 1006, 1007, § 112-116, 131-134, 143, 217, 227, 259, 1010,1056, 1086, 1098, 1124, 1207-1216; 305, 314, 321, 328, 332, 334, 346-349, 358, IL § 302, 747 ; Stat. Crimes, § 184, note, 361, 364, 371, 401, 409, 410, 414, 415, 429, 185, 242, 260 a, 742, 743, 747, 759. And 510, 547, 557, 558, 562-564, 600, 615, 635, see DnELLiNG — Neglects — Self 637, 639, 640, note, 652, 654, 666, 676, 678, MuEDEK. 693, 698, 736, 780, 781, 788, 792, 795, 797, 279 § 517 SPECIFIC OFFENCES. [BOOK III. " malice aforethought ; " the statutory expression being " wilful murder of malice prepensed." ^ Thus we have the two common- law degrees of manslaughter and murder. The statutory degree, called murder in the first degree, was made out of murder, and the part of it oftenest brought into notice was created in the same way as murder had been produced from manslaughter. It consists of those murders wherein the malice aforethought is " deliberatel)' premeditated," or something else of the sort ; the statutory expression in this particular differing in our respective States.^ Now, — § 517. Indictment. — The reader perceives that the killing is the same in these several forms of felonious homicide ; the differ- ence consisting in the different states of mind, or iutents, or con- templated objects, which impelled the slayer to do what resulted in death. Thus, — Manslaughter — is simply where one kills another "feloniously." Murder — is where one kills another " feloniously " and of " malice aforethought." Murder in the First Degree — is where one kills another " felo- niously " and of such ^'■malice aforethought'^ as is "deliber- ately PREMEDITATED," or whatever else the statutory expression may be. So that — Distinction in Indictment. — The main part of the indictment for all three forms of killing is the same. For manslaughter, the killing must be alleged to have been done " feloniously." For murder (or murder in the second degree), it must be charged to have been done "feloniously and of malice aforethought ; " and the word ^'■murder'" must also be woven in some way into the alle- gations, so as fully to cover the phrase in the old statute. For murder in the first degree the statutory expression "deliber- ately premeditated," or whatever else it is, must be added; resulting, for example, in the phrase " feloniously and of delib- erately premeditated malice aforethought.'" Taking, from this averment, the words here printed in small capitals, what remains is an indictment for common-law murder, or the statutory mur- der in the second degree ; taking from it also the words here printed in italics, and the word " murder,''' an indictment for manslaughter remains.^ Hence, — 1 Crim. Law, II. § 624-628. s Grim. Proced. II. § 540-550, 561- 2 Crim. Law, II. § 723-730. 564. 280 CHAP. XLII.] HOMICIDE — SUBSTANTIVE. §520 § 518. How in this Chapter — (Degrees distinguished). — We shall not, in this chapter, to any great extent have separate in- dictments for manslaughter, for murder, and for murder in the first degree. But those special allegations which are essential to murder in the first degree will be printed in small capitals, and those required in murder, or murder in the second degree, will be set here in italics ; so that, when the words in small capi- tals are stricken out, what remains will be an indictment for common-law murder, or murder in the statutory second degree, and when both the small capitals and the italics are struck out the residue will be an indictment for manslaughter. § 519. Elsewhere. — There are in " Criminal Procedure " some forms ^ which, and especially the explanations attending which, the reader will do well to consult in connection with this chap- ter. Indeed, all the elucidations of this subject iu that work ought to be carefully studied by the inexperienced pleader, before he draws an indictment for any sort of felonious homicide. § 520. Formula — (Forms). — In consequence of the exact in- structions which the nature of this subject rendered possible in " Criminal Procedure," and in consequence of the uniform plan on which under the common-law rules the indictment for feloni- ous homicide has always been drawn, the formula for it, em- bracing its various degrees, may be more minutely constructed than in the natures of the several other subjects could be the formulas under most of the other titles. The consequence of which is, that the present formula will serve also as a compact series of forms, more available to the practitioner than would be many pages of the ordinary precedents. Thus, — That A, &c. [ante, § 74-77], on, &c. at, &c. [ante, § 80], did feloni- ously, [wilfully^], and of his deliberately premeditated [or, &c. as to the matter in these small capitals, employing the words, whatever they may be, of the statute creating murder in the first degree] malice aforethought,^ make an assault* on one X [ante, § 79; Crim. Proced. II. § 506-511], 1 Crim. Proced. II. § 502, 541, 564. necessarily in all. When it is such ele- ^ It is common, in the indictment both ment, it should be averred ; when not, it for murder and for manslaughter, to insert need not be, though if the useless allegation here the word " wilfully." But it is not is inserted it will do no harm. But the necessary in either. Crim Proced. II. word " assault " is not indispensable in the § 502, 543, 545 ; post, § 542, note. allegation of it ; yet it is common in all = For the significance of these small these indictments, whether required or not. CAPITALS and UaUcs see ante, § 517, 518. Crim. Proced. II. § 512, 513, 537, 538, 553, 4 Charging Assault. — Assault is an 554 ; ante, § 207-209. element in most felonious homicides, not 281 §520 SPECIFIC OFFENCES. [book HL and [proceeding now to state what is special to the particular case ; as, when it is With Fire-arms], — a certain gun, which then and there was loaded with gunpowder and one leaden bullet,^ and by him the said A had and held in both his hands,^ he the said A did then and there feloniously and of his DELiBEKATELT PREMEDITATED [or, &c. as above] molice afore- thought ° shoot off and discharge at and upon the said X, thereby, and by thus striking the said X with the said leaden bullet, inflicting on and in the left side of his head one mortal wound ^ [or, By Stabbing, — with a cer- tain knife (or sword, or dagger, or sharp instrument to the jurors unknown), which he the said A then and there had and held in his right hand, did then and there feloniously and of his deliberately premeditated {or, &c. as above) malice aforethought strike, stab, thrust, and cut at, upon, and into the said X, inflicting on the said X, in the abdomen of the said X, one mortal wound ; ^ or, By Cutting the Throat, — with a certain knife which 1 While something of this sort of par- ticularity is required in averment, the proofs need not be exact in point of form. For example, the allegation in the text would doubtless be satisfied by showing that tlie gun was charged with compressed air and dynamite. Certainly it would be no fatal variance should it appear that the bullet was of iron. Crim. Proced. XL § 514. ^ Probably this averment is more mi- nute than is necessary, but it may be safer so. Crim. Proced. II. § 515. In Com- monwealth r. Costley, 118 Mass. 1, 21, it was adjudged permissible to omit the entire allegation that the weapon was held by the defendant. 8 This repetition of "feloniously," &c. is nearly universal in the precedents, but it would appear to be unnecessary ; the for- mer "feloniously," &c. extending to and qualifying this clause also. Still I should prefer to continue its use. Crim. Proced. II. § 547. * I have endeavored to avoid some of the common verbiage of this allegation, yet to omit nothing which any pleader would deem important. Consult, for further forms for it, Crim. Proced. II. § 564; 3 Chit. Crim. Law, 752-756, 781 ; Rex v. Morley, Trem. P. C. 280 ; Rex v. Kinch, 28 Howell St. Tr. 619 ; Reg. v. Downing, 2 Cur. & K. 382 ; Shropshire v. The State, 7 Eng. 190, 192 ; Dixon i. The State, 29 Ark. 165, 167 ; Haney v. The State, 34 Ark. 263 ; Studstill v. The State, 7 Ga. 2;, Eeed v. The State, 8 Ind. 200 ; Dukes v. The State, 11 Ind. 557; Shepherd v. The 282 State, 64 Ind. 43 ; The State See, for various forms of this allega- on different days, I have charged all as on tion, ante, title Abortion. But the plead- one dav ; deeming such to be ordinarily er should weave into it the expressions the better method. Crim. Proced. I. § 397. peculiar to murder. But the pleader can easily vary the form, ' I have in some measure followed here- should he wish, so as to aver the several in the precedent in The State v. Wood, 53 facts as of the dates when they respectively N. H. 484. And for other forms see Pco- transpired. pie v. Jackson, 3 Hill, N. Y. 92 ; Hunt r. 2 Ante, § 143. People, 3 Parker C. C. 569 ; Cobel i'. Peo- 8 Crim. Law, II. § 691 ; ante, § 143. pie, 5 Parker C. C. 348 ; Beasley u. People, * Crim. Law, II. § 723-730. Yet query 89 111. 571, 573; Bechtelheimer v. The under such a statute as that of Alabama. State, 54 Ind. 128. lb. § 728. And see the cases cited at the end of the form. 291 § 529 SPECIFIC OFFENCES. [BOOK III. § 529. Medical Malpractice, &c. — The grade of homicide by medical or surgical malpractice will seldom be higher than man- slaughter.i -phe indictment should set out the special facts, which will vary with the cases ; and the better and safer way is to weave them into one of the foregoing models, omitting the words there printed in small capitals and italics. Still the pleader may like to have before him the following form, some- what departing from the common approved forms, whereon, in a case of neglect, a defendant who was a surgeon and man-midwife was convicted and sentenced : — That on, &c. at, &c. X the wife of Y was pregnant and laboring with child, and that A, &c. then and there took the care and charge of the said X, as a man midwife, and to assist and attend upon and to take care of her the said X, and to do everything needful and proper to and for her during and after the time of her labor and delivery of the said child wherewith the said X was then pregnant ; and that the said A afterwards, and whilst he had such care of the said X as aforesaid, and immediately after the said X was delivered of the said child wherewith she had then lately before been pregnant, to wit, on, &c. at, &c. in and upon the said X feloniously did make an assault,^ and her the said X, lying on a bed in great illness, pain, and weakness, did on said last-mentioned day there feloniously neglect and refuse to attend upon, and to take proper, sufficient, and necessary care of, and to render her proper and necessary assistance, and did then on said last-mentioned day there feloniously neglect and refuse to do to and for her, being in such state, and did then on said last-mentioned day there leave and desert the said X in such state as aforesaid without a proper and suffi- cient person to take care of her, and to do for her what was needful for her, being in such state, and unable to take care of and to do what was needful and necessary for herself ; and that by reason and means of the said A there on said last-mentioned day so neglecting and refusing as afore- said to do to and for her the said X wliat was needful and proper for her, and by the said A so leaving and deserting the said X as aforesaid, the said X [became mortally sick, emaciated, and enfeebled in body, and of said mortal sickness, emaciation, and feebleness of body ^] there, on, &c. died. And so the jurors do say, that the said A, her the said X, in manner and by the means aforesaid, feloniously did kill and slay ; against the peace, &c.^ 1 Crim. Law, I. § 217, 314, 558; II. * Ferguson's Case, 1 Lewin, 181. For § 664, 685, 693.. other forms, see Reg. v. Ellis, 2 Car. & K. 2 This allegation of assault in such a 470 ; Eex v. Spiller, 5 Car. & P. 333 ; Rex case is plainly needless. Ante, § 520, note. v. Long, 4 Car. & P. 423 ; Reg. v. Spilling, ' Not In the form which I am in the 2 Moody & R. 1 07 ; Webb's Case, 2 Lewin, main copying. But, in States where the 196. Against a person ignorantly acting strict common-law rules prevail, I should, as a physician and causing death. Rice ». at least as a matter of prudence, insert it. The State, 8 Misso. 561. Against one 292 CHAP. XLII.] HOMICIDE — SUBSTANTIVE. § 531 § 530. Manslaughter by Neglect of Duty. — The form in the last section is of this sort. For a husband's neglect of his wife, by reason whereof she dies, the allegations may be, — That A, &c. OD, &c. at, &c. being the husband of one X his wife, under the legal duty to provide for her necessary clothing, shelter, and protection from the frost, cold, and inclemency of the weather, and then and there having the means to provide the same, and she the said X being then and there weak, feeble, destitute, and infirm, and unable to go abroad, did then and there feloniously and wilfully neglect and refuse to provide necessary clothing, shelter, and protection from the frost, cold, and inclemency of the weather for his said wife, whereby her health was greatly injured ; and he, the said A, afterward, to wit, ou the next succeeding day and on every day between the said day first named and the day of her death here- inafter to be mentioned, did there feloniously and wilfully continue to neg- lect and refuse to provide her the said X with necessary clothing, shelter, and protection from the frost, cold, and inclemency of the weather, the said A being there on all said days and times her husband as aforesaid, and having the means to provide the same as aforesaid, and under the legal duty to provide the same as aforesaid, and she the said X having no means to provide the same as aforesaid, and being weak, feeble, destitute, infirm, and unable to go abroad as aforesaid. By reason whereof the said X there on all the days and times before mentioned, until, &c. sickened and lan- guished with a mortal sickness and feebleness of body so as aforesaid cre- ated and produced by the said A, until, on the said last-mentioned day, at said, &c. she, the said X, there of said mortal sickness and feebleness of body died. And so the said A her the said X, in manner and by the means aforesaid, feloniously did kill and slay ; against the peace, &c.^ § 531. Indictable Civil Injury of Causing Death. — Under the statutes on this subject^ the homicide, for which an indictment is provided as a civil remedy, is not felonious. It is neither mur- falsely pretending to be a physician, The C. C. 97. Against a pilot, causing death State V. McBride, 26 Wis. 409. Causing by bad management of the vessel, I?eg. v. death by administering noxious and im- Spence, 1 Cox C. C. 352. Careless navi- proper medicine, Rex v. Webb, 1 Moody & gation, running down a boat and drowning R. 40.1. a man, Reg. v. Taylor, 9 Car. & P. 672. ' In The State v. Smith, 65 Maine, 257, Against a railroad conductor for causing this form was adjudged good. It was first death by running his train in disobedience published in " Criminal Procedure " fCrim. of rules, Commonwealth v. Hartwell, 128 Proced. 2d ed. II. § 538), where it was a Mass. 415. Same for negligently driving sort of compilation from the forms in Rex his engine against another engine, causing 1^. Ridley, 2 Camp. 650 ; Reg. v. Crump- death, 3 Cox C. C. App. 57. Neglect to ton. Car. & M. 597 ; and Reg. v. Plummer, give the proper signal, Reg. v. Pargeter, 3 1 Car. & K. 600. And see 3 Cox C. C. Cox C. C. 191. Various neglects at coal App. 75. Other Neglects. — See, for mines, Reg. v. Whitehouse, 5 Cox C. C. forms, — Against the owner of an unli- 144; Reg. r. Barrett, 2 Car. & K. 343; censed passenger boat, causing death by Reg. v. Haines, 2 Car. & K. 368. overloading it, Reg. v. Williamson, 1 Cox * Stat. Crimes, § 467-470. 293 § 531 SPECIFIC OFFENCES. [BOOK III. der nor manslaughter. Therefore strictly we should give this topic a separate chapter, j^et practically it is well enough here. The statutes are numerous and diverse, and the indictment must cover the particular one on which it is drawn. On the words, "If the life of any person,. being a passenger, shall be lost by reason of the negligence or carelessness of the proprietor or pro- prietors of any railroad, steamboat, stage coach, or of common carriers of passengers, or by the unfitness or gross negligence or carelessness of their servants or agents, in this Commonwealth, such proprietor or proprietors and common carriers shall be liable to a fine not exceeding five thousand dollars nor less than five hundred dollars, to be recovered by indictment to the use of the executor or administrator of the deceased person, for the benefit of his widow and heirs ; one moiety thereof to go to the widow, and the other to the children of the deceased, but if there shall be no children, the whole to the widow, and if no widow, to heirs according to the law regulating the distribution of intes- tate personal estate among heirs," ^ we have a form which was adjudged good. It is, — not inquiring whether it might not be shorter, — That the A Railroad Corporation, a body politic and corporation duly and legally established in this Commonwealth, were, on, &c. the proprietors of a certain railroad leading and extending from M to N, through the town of O, in the county of [the indictment], called and known by the name of the Q Railroad, and were common carriers of passengers over, upon, and along said railroad, and being such proprietors and common carriers of passengers did, by their agents and servants, on the said, &c. at the said, &c. run, conduct, and drive a certain engine and train of cars, in one of which said cars X was then and there a passenger over, upon, and along said railroad, and by their agents and servants then and there had the custody, care, and management of said railroad, engine, and cars, and by the gross negligence and carelessness of their said agents and servants said railroad was suffered to be and was then and there out of repair and defective, and the rails tiiereof uneven and in a condition unsuitable and dangerous for the passage of engines and cars upon, over, and along the same, and the aforesaid engine and train of cars run, conducted, and driven as aforesaid were then and there, by the gross negligence and carelessness of the said agents and servants, run, conducted, and driven with great un- reasonable and improper speed, and in an unsafe and unskilful manner, by means of all which the aforesaid car wherein the said X was then and there a passenger as aforesaid, was then and there thrown with great vio- 1 Mass. Stat. 1840, t. 80. 294 CHAP. XLII.] HOMICIDE — SUBSTANTIVE. § 532 lence from the track of said railroad and broken in pieces, whereby divers injuries, bruises, and wounds were then and there inflicted on the head, body, and limbs of said X, of which said injuries, bruises, and wounds he the said X then and there instantly died. And so the jurors aforesaid on their oath aforesaid do say, that the life of said X, being a passenger as aforesaid, was then and there lost by reason of the gross negligence and carelessness of the aforesaid agents and servants of said A Corporation, in manner and form aforesaid ; the names of which said agents and servants are to the jurors aforesaid unknown ; whereby said A Corporation have become liable to a fine not exceeding five thousand dollars nor le-s than five hundred dollars, to be recovered by indictment to the use of the exec- utor or administrator of said deceased person, for the benefit of his widow and heirs ; and that Y has been duly appointed and now is administrator of said X deceased, and of his goods and estate, and that there is no widow nor are there children of said X ; and that there are heirs of the said X, according to the law regulating the distribution of intestate personal estate among heirs now living, whose names are to the jurors unknown; against the peace, &c.* § 532. First Degree Murder of another Sort. — Not all murders of the first degree depend, like those for charging which the forms have already been given, on an aggravated malice afore- thought in the mind of the murderer. Most of the statutes pro- vide that, in addition to such distinction, all murders by poison, and by perpetrating or attempting to perpetrate arson, rape, rob- bery, or burglary shall be in this higher degree. The special condition of the offender's mind, in other words the sort of malice aforethought, has nothing to do with these murders ; they are in the first, and there is no second degree of them.^ If the indict- ment avers simply the malice aforethought, not introducing the words " deliberately premeditated " or any other similar ones, and then sets out the killing as having been effected by poison, or by an actual or attempted arson, eapb, bobbery, or bur- glary, it duly alleges a murder in the first degree. But the words here printed in small capitals cannot, as in the other sort of murder in the first degree, be stricken out and leave an accu- 1 Commonwealth U.Boston and Worces- other forms, see The State v. Manchester, ter Railroad, 11 Cush. 512. Mere verbal &c. Railroad, 52 N. H. 528, 530 ; Corn- abridgments of this form are readily made, monwealth v. Coburn, 132 Mass. 555; In the present condition of the authorities Commonwealth v. Fitchburg Railroad, 120 I could not serve the pleader much by Mass. 372; The State v. Maine Central pointing out others, without entering into Railroad, 60 Maine, 490 ; The State v. discussions with which I do not deem it Grand Trunk Railway, 60 Maine, 145. advisable to encumber this volume. For ^ Crim. Law, II. § 723-725, 727. 295 § 533 SPECIFIC OFFENCES. [BOOK III. sation of murder in the second degree ; because, among other reasons, there is, as just said, no murder in the second degree where the life is taken by any of the means here specified. ^ Hence, in the forms to follow, the words indicating the degree will not, as in the foregoing, be put in small capitals. §533. By Poison. — Ordinarily, at common law, a felonious killing by poison is murder ; but it may be, and it sometimes is, manslaughter. And, as just seen, generally in the States wheie- in murder is of two degrees, it is of the first degree, and it has no second. Therefore, under the statutes creating degrees, the indictment is in the same form as at the common law. There is a precedent for it in " Criminal Procedure ; " ^ and it is there, in connection with the precedent, pretty fully explained. But the following, into which are introduced some diversities in the alle- gations, will be found convenient : — That A, &c. on, &c. at &c. did feloniously and of his malice aforethought [devising and intending, &c.^ make an assault, &c.^] administer to and cause to be taken by one X into his stomach a deadly quantity of a certain deadly poison called strychnine,' he the said A then and there well know- ing the same to be, in quantity and kind as so administered and taken, a deadly poison ° \or, in substance copying allegations found in the books, feloniously, &c. did put, infuse, mix, and mingle in and together with 1 And see Crim. Proced. II. § 588, 589. dered person to find and take. Of course, 2 Crim. Proced. II. § 553. as every court rules the law according to ' It is common to allege here that the its own views, it is impossible for me to say defendant meant to kill the deceased. But that a particular tribunal will accept as this is unnecessary, and it is better omitted, correct what is here set down. Were I in Crim. Proced. II. § 554. practice before some judges, I should cer- * Many of the precedents aver an as- tainly add » count more nearly after the sault here, as at ante, § 520. Others do common precedents ; before other judges, not ; and unquestionably this averment is I should not. In Commonwealth v. Her- ncedless. Crim. Proced. supra. sey, 2 Allen, 173, allegations which appear * I should state the name of the poison, to have been regarded by the tribunal as and should deem its omission in most of sufficient were, — our States unsafe. Crim. Proced. II. Did feloniously, &c. give and administer § 555 ; ante, § 139, note, a certain large quantity, to wit, ten grains in * I put the averment thus because I weight, of a certain deadly poison called believe it to be the proper form in just legal strychnine, he the said A tiien and there well doctrine and practical convenience, though knowing tlie same to be a deadly poison, with I have not seen it precisely so in any pre- '""^ '"'«'"■ '^at the said X should then and cedent. Under this averment, according to "'"« ^^^ »"^ '^''"''"' "J"^" ""= '""'^ '"'" my understanding, the proof may be that ''"'' ^."^^'^ ""^ "'" '^'^^ 'l^« said strychnine ., ■ r .' ■' . J so given and admmistered as aforesaid, did the poison was given euher pure or muxed j,,,^ ^^^ ^^ere take and swallow into her with other ingredients, by the defendant body, and bv reason thereof became tlien and with his own hands, or through an inno- there mortally sick and distempered in her cent agent, or through a guilty agent in body, and of said mortal sickness and distem- his presence, or left by him for the mur- per did, &o. 296 CHAP. XLir.] HOMICIDE — SUBSTANTIVE. § 633 water a certain quantity of arsenic, to wit, two drachms of arsenic, being a deadly poison, then and there well knowing the said arsenic to be a deadly poison, and the said arsenic, so put, infused in, and mixed and mingled in and together with water, into a certain glass vial bottle did put and pour, and the said glass vial bottle with the said arsenic put, infused in, and mixed and mingled in and together with water as aforesaid contained therein, then and there feloniously and of his malice aforethought in the lodging-room of the said X did put and place, in the place and stead of a certain medicine then lately before prescribed and made up for the said X and to be taken by the said X, he the said A then and there feloniously and of his malice aforethought intending that the said X should drink and swallow down into his body the said arsenic put, infused, mixed, and mingled in and together with water as aforesaid, contained in the said glass vial bottle, by mistaking the same as and for the said medicine so prescribed and made up for the said X and to be by him taken as aforesaid ; and the said X, not knowing the said arsenic put, infused in, and mixed together with water as aforesaid, contained in the said glass vial bottle so put and placed by the said A in the lodging-room of the said X in the place and stead of the said medicine then lately before prescribed and made up for the said X and to be taken by him the said X in manner aforesaid, to be a deadly poison, but believing the same to be the true and real medicine then lately before prescribed and made up for and to be taken by him the said X, afterward, on, &c. at, &c. aforesaid, the said arsenic so as aforesaid put, infused in, and mixed together with water by the said A as aforesaid contained in the said glass vial bottle so put up and placed by the said A in the lodging-room of him the said X in the place and stead of the said medicine then lately before prescribed and made up for the said X, he the said X did take, drink, and swallow down into his body ■" ] ; by means of the taking of which deadly poison into the stomach and body of the said X, he the said X became then and there mortally sick and distempered in his body, of which said mortal sickness and distemper of body, &c. [as at ante, § 520].'' 1 3 Chit. Crim. Law, 775. No won- 345 ; Reg. v. Webb, 1 Moody & R. 405 ; der those who really suppose that the Reg. u. Packard, Car. & M. 236 (getting a common law requires such ridiculously man to drink excessive quantities of intoxi- verbose forms as this, hold it in contempt caljng liqnor, &c.) ; Snyder v. The State, and desire to have it codified and 59 Ind. 105 (murder of first degree under amended. statute) ; Commonwealth v. Hersey, 2 Al- '•^ And see, for forms, Crim. Proced. II. len, 173 ; Josephine v. The State, 39 §553; 3 Chit. Crim. Law, 772-778; 2 Misso. 613; People v. Robinson, 2 Parker Cox C. C. App. 4 ; Rex u. Weston, 2 C. C. 235 ; People v. Hartung, 4 Parker Howell St. Tr. 911 ; Rex u. Blandy, IS C. C. 256; Stephens v. People, 4 Parker Howell St. Tr. 1118 ; Reg. v. Saunders, 2 C. C. 396, 399 ; Robbins v. The State, 8 Plow. 473 ; Vaux's Case, 4 Co. 44 a , Rex Ohio State, 131 ; Blackburn v. The State, V Clark 1 Brod. & B. 473 ; Reg. u. 23 Ohio State, 146 ; Commonwealth v. Michael, 2 Moody, 120, 9 Car. & P. 356 Earle, 1 Whart. 525 ; Marshall Of course, the pleader will more or affirmative, if the girl was below ten and less modify these allegations to cover the consented, there should be an allegation actual facts as they will appear at the trial, here that she was under ten. Rex u. For a partial and imperfect form, see Rex Lad, 1 Leach, 4th cd. 96 ; Stat. Crimes, v. Lad, supra. §486. 7 Ante, § 14-21. * The averment of an assault is com- 8 p-Qr illustrative forms see The State 298 CHAP. XLII.] HOMICIDE — SUBSTANTIVE. § 537 of killing — as, for example, such as is set out in either of the last two sections — is murder of the first degree when committed simply of malice aforethought and it has no second degree, and another sort of killing is murder in the first or second degree according as the malice aforethought is deliberately premedi- tated or not, there are practical objections to weaving the two into one count, which should lead the pleader to avoid it, what- ever may be his opinion as to what would be the judgment of the court thereon. § 536. Death out of Jurisdiction. — There is, in the criminal law, no jurisdiction by fiction. So that, when the blow was given in the county of the indictment and the death occurred else- where, the proper way is to allege each according to the real fact. If the proofs do not disclose a jurisdiction, the defect can- not be supplied by false averment. ^ § 537. Wound out df Jurisdiction. — If the court has authority to take cognizance of a case by reason of the death having been within its jurisdiction while the mortal wound was inflicted else- where,^ the same rule still applies; namely, the indictment should charge the place of the transactions according to the fact. For example, where, in such a case, the deceased was wounded on the high seas and died on land, the wounding will be charged to V. McDonald, 67 Misso. 13 ; Common- legally unimportant on a just view of the wealth «. Macloon, 101 Mass. 1; Howard case, and as ultimately regarded by the V. The State, 34 Ark. 433, 435. court, was under the circumstances highly 1 Crim. Proced. I. §381; ante, § 116, commendable for its practical good sense; note, 286, note. In United States w.Guiteau, because founded in opinions once judicially Official Record of the case, 1 et seq. for entertained, and still preserved in our the murder of the late President Garfield, books. There was a chance of its proving where the mortal injury was inflicted in the salvation of the whole proceeding. I Washington, D. C, and the death was in should recommend its insertion in any Monmouth Co., N. J., the indictment, other case under similar doubts. After which was in ten counts, laid the place of stating the death on, &c. " at the county of the death in all manner of ways. Thus, Monmouth, in the State of New Jersey," one count would allege it to have been in the count proceeds,— the District of Columbia; another, in New And thereafter, to wit, on, &c. the dead Jersey ; another in the District of Colum- body of the said X was removed from the bia, to wit, New Jersey ; another in New said county of Monmouth and State of New Jersey to wit, the District of Columbia. Jersey and brought into the county of Wash- As the question whether or not the court ington and District of Columbia, within which , 1 i • u ■ -J- .-„„ ,„no cffi said last-mentioned county it lay and re- would sustain the jurisdiction was sum- ='"';' .-, » , , . .• , „„,i mained from, &c. until, &c. ciently in doubt to suggest caution, and the case was of world-wide notoriety, one 2 Por expositions of this question, see cannot much blame the pleader for thus Crim. Law, L § 112-116; Crim. Proced. I. " clutching at straws." In one of the counts §50-53. there was a special averment, which, though 299 § 539 SPECIFIC OFFENCES. [BOOK III. have transpired on the high seas, and then the averments will proceed, — And after the said mortal wounds, bruises, &c. were so as aforesaid in- flicted on the said X by the said A, he the said X came into the county of, &c. and there languished of the same until, on, &c. he did there of the same die. And so, &c. [as at ante, § 520].* § 538. On High Seas, &c. — How the allegations of place should be, where the homicide was on the high seas or abroad, we have already seen.^ Forms in homicide, wherein it was so, are referred to in the note.^ § 539. Accessories, &o. — How the forms should be where there are principals as well of the second degree as the first, and accessories, in cases of felony generally, we have already seen.* Most of the precedents in murder enlarge the expression^ " was feloniously present," " did feloniously counsel," &c. to " was felo- niously and of his malice aforethought present," " did feloniously and of his malice aforethought counsel," &c. Not all do.^ In reason, the counselling and the like should be charged to have been done " feloniously," to distinguish the offence of the accused person from misdemeanor and treason. But the charge that the principal of the second degree was " present aiding, inciting, and abetting " the principal of the first degree ; or that the accessory before the fact procured the principal to commit the offence " in manner and form aforesaid," covers as well the " malice afore- thought" as the rest of what has been alleged against the prin- cipal of the first degree. Still, for caution, the prudent pleader will be likely to employ the enlarged form. It, with its accom- panying averments, is made to occupy different places in the J For a precedent, see Commonwealth * Ante, § 113-118. V. Macloon, 101 Mass. 1, 2. ^ Thus, in Parker's Case, 2 Dy. 186 a, 2 Ante, § 89. the indictment charged the principal of the 3 3 Chit. Crim. Law, 753, 759 ; Rex i;. first degree with committing the murder Clarke, 4 Went. PI. 47 ; Kex v. Kidd, 14 feloniously and of malice aforethought, Howell St. Tr. 123, 130 ; Rex i'. Coombes, the principal of the second degree simply 1 Leach, 4tli ed. 388 ; Rex o. Hindmarsh, with being present, &c. feloniously ; the 2 Leach, 4th ed. 569 ; Rex u. Depardo, accessory before the fact, with " feloni- Russ. & Ry. 134 ; Reg. v. Serva, 2 Car. & ously," &c. only ; and the accessory after K. 53, 1 Cox C. C. 292 ; Reg. v. Sawyer, the fact the same. Parker was accessory 2 Car. & K. 101 ; Reg. v. Bernard, 1 Fost. both before and after; "and," says the re- ft F. 240, 243 ; Reg. w. Keyn, 13 Cox port, "although he was » clergyman, yet C. C. 403, 404 ; United States o. Holmes, he was hanged for the procurement afore- 5 Wheat. 412; United States v. Plumer, 3 said." Clif. 28, 29. 300 CHAP. XLII.J HOMICIDE — SUBSTANTIVE. § 541 precedents, but the best is after the clause " and so," &c. and before " against the peace," &c.i It would be useless to repeat the forms here, but some references to cases in homicide contain- ing them will be convenient.^ § 540. On Statutes. — Most of the indictments on statutes cre- ating murder and manslaughter follow, in the absence of statu- tory direction, these common-law forms. But there are statutes in terms so departing from the common-law definitions of these offences as to require the allegations to be modifie^d.^ This ob- servation relates to but a few States, and to statutes differing from one another. For which reason, and because the modifica- tions required will be palpable to the pleader and easily made, it would not be a wise use of our space to give such modified forms here. But in a note some cases will be referred to, wherein ap- pear explanations besides those in the place last cited, and forms on these statutes. Thus the pleader will have at command all needed help.* II. The Indictment as modified ly Statutes. § 541. Everywhere — (Right to elect). — It is believed that in all our States, with the slight qualification mentioned in the last section, applicable only to a few States, the forms given in the last sub-title are adequate. Where others are provided by stat- ute, the pleader may elect between them and those of the com- mon law ; but he cannot employ a form not before permissible, 1 And see Crim. Proced. II. § 3-9. v. Coleman, 5 Port. 32 ; Studstill a. The 2 3 Chit. Crim. Law, 7.53-756, 761-764, State, 7 Ga. 2 ; Commonwealth u. Rob- 766 ; Rex u. Clarke, 4 Went. PI. 47 ; Rex erts, 108 Mass. 296 ; Commonwealth v. V. Doughty, Trem. P. C. 28.5; Rex v. At- Chiovaro, 129 Mass. 489 ; The State v. kins, 7 Howell St. Tr. 231 ; Rex v. Good- Hopper, 71 Misso. 425, 427 ; People v. ere, 17 Howell St. Tr. 1003; Rex v. Hartung, 4 Parker C. C. 256 ; The State White, 17 Howell St. Tr. 1079; Rex v. b. Rabon, 4 Rich 260; The State ?•. Ayers, Annesley, 17 Howell St. Tr. 1094; Par- 8 Baxter, 96; Ilawley k. Coramonwealtli, ker's Case, 2 Dy. 186 a ; Reg. v. Saunders, 75 Va. 847. 2 Plow. 473 ; Mackalley's Case, 9 Co. » Stat. Crimes § 471^76. 616; Rex D. Taylor, 1 Leach, 4th ed. 360 ; < Dakes v. The State, 11 Ind. 557; Reg.' «. O'Brian, 1 Den. C. C. 9, 1 Cox Snyder v. The State, 59 Ind. 105 ; Ken- C. C. 126 ; Reg. <.. Downing, 2 Car. & K. nedy v. The State, 62 Ind. 136 ; Shepherd 382 ; Reg. v. Pym, 1 Cox C. C. 339 ; Reg. v. The State, 64 Ind. 43 ; The State v. V. Richards, 2 Q. B. D. 311, 13 Cox C. C. Stanley, 33 Iowa, 526; Robbins v. The 611 • Rex V. Foy, Vern. & S. 540; Reg. v. State, 8 Ohio State, 131 ; Blackburn v. Breden, 16 U.C. Q. B. 487 ; Reg. v. The State, 23 Ohio State, 146; Rufer v. Greenwood 23 U. C. Q. B. 255 ; The State The State, 25 Ohio State, 464. 301 § 543 SPECIFIC OFFENCES. [BOOK HI, on the ground that, though differing from the statutory one, it is in reason as good.^ § 542. Short Form, — Legislation in England, in 1851, adopted afterward in Canada, authorized a very short form in these homi- cide cases.''' It has been incorporated into the statutes of sev- eral of our States, in a part of them literally, in the others modified. And thus far the constitutionality of it has been up- held by our courts.^ Under the unmodified statutory terms the allegations for murder may be, — That A, &c. on, &c. at, &c. feloniously, wilfully,* and of his malice aforethought ^ did kill and murder X ; against the peace, &c.° § 543. Other Short Forms. — The form thus given, containing nothing to identify or individualize the transaction except the name of the person killed, runs very close to what is inadmissible either in natural justice or under our constitutions, — too close to be commendable. Hence, some of our States that have adopted short forms have not gone so far. And in some States, where the English words have been enacted, pleaders have in practice been considerate, and introduced identifying matter not in terms required. Thus, — That A, &c. on, cSsc. at, &c. in and upon the body of one X feloniously, wilfully, and of his malice aforethought did make an assault, and him the 1 Nichols V. The State, 46 Missis. 284. fully," though the latter would not suffice 2 Crim. Proced. II. § 523 ; Whelan v. in place of the former. Crira. Proced. I. Reg. 28 U. C. Q. B. 2. § 613 ; II. § 43, 922 ; McCoy v. The State, ' Crim. Proced. II. § 539. 3 Eng. 451. But the statute now in qncs- * ""WilfuUy." — In forms drawn after tion is different. It declares it to be un- the common-law rules, it has hitherto been necessary in the indictment to set out the common to insert in this place the word manner, &c. of the killing, but it shall suf- " wilfully " in addition to " of his malice fice to charge " that the defendant did felo- aforethought," — unnecessarily, as already niously, wilfully, and of his malice afore- explained. Ante, § 520, note. And on a thought kill," &c. Is this statute complied statute making it murder for one to kill with when " wilfully " is omitted t In the another " wilfully and of his malice afore- absence of decisions that it is, I should thought," it is plain that an indictment deem it, at least, prudent to retain the word which omitted the word "wilfully," but " wilfully " in the allegation, had " maliciously," &c. or more accurately, ' In Oregon, " purposely and mali- " of his malice aforethought," would be ciously killed," &c. The State v. Dodson, good ; because an indictment in this sort 4 Oregon, 64. of case is required to cover only the statu- « j-Qr forms, see O'Neill r. Reg. 6 Cox tory meaning, and it is settled in adjudica- C. C. 495, 496 ; Whelan v. Reg. supra; tion that "maliciously" signifies whatever People v. Murphy, 39 Cal. 52 ; People v. is meant by " wilfully," and more. So Alviso, 55 Cal. 230 ; Sneed v. People, 38 that "maliciously "is a good substitute in Mich. 248; Necomb v. The State, 37 any indictment for the statutory "wil- Missis. 383. 302 CHAP. XLII.] HOMICIDE — SUBSTANTIVE. § 546 said X then and there feloniously, wilfully, and of his malice aforethought, did kill and murder ; against the peace, &c.* Or, under a different statute, — That before the finding of this indictment, A, &c. unlawfully and with malice aforethought killed X by shooting him with a pistol \^or, &c. men- tioning, in the like short way, whatever other method of killing was resorted to] ; against the peace, &c.^ §544. Other like Forms, — good in the particular States, are given in the reports.* § 545. Less Radical Modifications — than the foregoing, not allowable under the common-law rules, are open to the pleader, should he prefer them, under the statutes of a small number of our States. They have few, if any, practical advantages over the common-law forms. It is needless to pursue the question further here ; * except as to — §546. Murder of First Degree. — In another connection^ it is explained how, by considerable numbers of our courts, not all of them, various statutes have been interpreted as permitting a conviction of murder in the first degree on an indictment which sets out the elements of murder in the second degree only, and how such a statute so interpreted violates guaranties in the con- stitutions of all our States. There is not in the pages of our many thousand law books, another so startling illustration of the effects of the excellent rule of stare decisis when, after a judicial blunder, the courts shut their eyes and refuse to look however importuned, and follow it blind.^ It would be useless to repeat ^ Brandt v. Commonwealth, 13 Norris, ' Kansas, The State v. Bowen, 16 Kan. Pa. 290 ; Turner v. Commonwealth, 5 475, 476 ; Tennessee, Womack v. The Norris, Pa. 54 ; Campbell v. Common- State, 7 Coldw. 508, 510 ; Texas, Dwyer v. wealth, 3 Norris, Pa. 187. I have omitted The State, 12 Texas Ap. 535, 539. from this form, as it stands in the reports, * Crim. Proced. II. § 539. For forms, some of the hoary redundancies. It is &c. see White v. Commonwealth, 9 Bush, marvellous how, even in spite of legisla- 178; Haney v. The State, 34 Ark. 263; tion, pleaders will stick to what is sense- Dixon v. The State, 29 Ark. 165, 167 ; The less ; such matter is vastly harder to get rid State v. Moran, 7 Iowa, 236. of in actual practice than the sensible and ^ Crim. Proced. II. § 561-589. useful. In The State v. Smith, 67 Maine, ' The correct forms for the indictment 328, this form, which was deemed good, are given in the last sub-title. Looking had only the " force and arms " super- now only at the ordinary case : while there gyijy was no distinction between murder and 2 Beasley u. The State, 50 Ala. 149 ; manslaughter, the killing was alleged to Noles V. The State, 24 Ala. 672, 688; have been done by the defendant " fclo- Ezell V. The State, 54 Ala. 165, 166; niously;" when this felony was divided Youne v The State, 58 Ala. 379. into the two degrees of murder and man- 303 §546 SPECIFIC OFFENCES. [book III. here what is said in the other place. In practice, even in States where the judicial blunder prevails, prosecuting officers often — slaughter, murder was by the common-law rules of the indictment required to be charged by incorporating into the allega- tions its distinguishing element, namely, as done " feloniously and of malice afore- thought ,- " and, when murder — that is, " felonious killing of malice aforethought " — was divided into the two degrees called murder in the first degree and murder in the second degree, the first distinguished by the malice aforethought being therein "deliberately premeditated," the indict- ment for this degree was by the same rules required to charge that the defendant did it "feloniously and of his dehbekatelt PREMEDITATED molicc afoTethought." So much is a repetition of what has gone be- fore, but it will make the rest of this note plain to the reader. Now, according both to natural reason and to the common law, while murder is distinguished from man- slaughter by being done of " malice afore- thought," no indictment can charge murder except by these words or their equivalent. Equally certain is it, that, while murder of the first degree is distinguished from mur- der of the second degree by being done of "deliberately premeditated" malice afore- thought, no indictment without the words " deliberately premeditated " or their equiv- alent charges murder in the first degree. Suppose we take up here and echo and re- echo the language with which certain of the decisions abound, that " the two degrees of murder are one crime," still, without the words " deliberately premeditated " the ag- gravated degree of the " one crime " is not charged. Where the government seeks to hang the prisoner because he committed, not the "one crime," but the particular branch of it which is in the first degree, how can it do this without alleging the fact which constitutes the "one crime" of this degreel The court will not permit the hanging unless the verdict declares the crime to be in this degree. But every law- yer knows that, alike in law and reason, a verdict cannot be broader than the allega- tions. And no lawyer will deny that a verdict which is broader violates, in a crim- inal case, guaranties written in all our Constitutions. " True," say some of the judges, " but it has been decided that you 304 can convict one of murder in the first de- gree on an indictment silent as to the mat- ter distinguishing this degree ; hence it logically follows that an indictment wherein no one of the elements of this degree is visible, does nevertheless in some occult way aver all those elements ; if the eyes of the flesh do not discern them, still the eyes of the law do ; else the former adjudi- cations would have been impossible. For certainly nothing transpired which could not; and, in the law, what was, is, and thusit must remain. Stare decisis ! " But I need not proceed further with this ; it is all — or, rather, enough of it to create dis- gust where we ought to be able to enter- tain respect — explained in " Criminal Procedure." Referring to the explanations there, let us now imagine an exactly par- allel case. One brings suit to recover two items of book account of two dollars each. At the trial, he proves an indebtedness of sixteen dollars, and has judgment for the sixteen ; the attention of the court not having been directed distinctly to the fact that only four dollars were claimed. By and by another like suit is brought, and judgment for sixteen dollars is rendered on the authority of this case. Still other ad- judications of the same kind inconsiderately follow ; until, at length, the court is boldly confronted with the doctrine that proofs cannot authorize a judgment in excess of ihe allegations, and that to permit such a thing is equivalent to suffering parties to enter up judgments without any allcjia- tions. And the court is pressed with this objection till it speaks. But it will not entertain the idea that there has been a blunder, and that blunders do not become by repetition law. No! Stare decinis! After it has been decided and affirmed and reaffirmed, by learned tribunals announcing the law, that the sun rises at midnight, it does rise at midnight! Law is law, and the Universe rolls by law ! So the court, with the drop of pity in its eye for the ignorant, reasons the question out. " This plaintiff," says the learned judge, "claims in his declaration to have sold to the de- fendant a hat for two dollars, and a cap for two dollars, for which he seeks to recover pay. It <8 not questioned that at the trial CHAP. XLII.J HOMICIDE — SUBSTANTIVE. §546 it is believed oftener than otherwise — frame the indictment for murder in the first degree properly, as indicated in our last sub- he duly proved so much of the case. But he was permitted, against the objection of the defendant, to prove also the sale of a coat for twelve dollars, and to have judg- ment for sixteen dollars. And it is said that the declaration is silent as to the coat and the twelve dollars. But the question is res adjudicata. In our opinion, two dol- lars, four dollars, and twelve dollars are all one money. And sixteen dollars are one money with the rest. But, not to enlarge so far, four dollars are admitted to be due ; and a long course of decision, not to be disturbed, has settled the question that, where a plaintiff demands two dollars and two dollars, he may have jud^^ment for six- teen dollars. Hence, on a claim of two - dollars and two dollars, judgment may be for four dollars or for sixteen according as the proofs are at the trial. JFrom which premises, as the judgment cannot exceed the allegations, it logically follows, that two dollars and two dollars include sixteen dollars ; while still it is just as true that the sum of two and two is four as that it is sixteen. In fact, four and sixteen dol- lars are one money, and the plaintiff is to •have either, according as the proofs may be at the trial. Indeed, except that the distinction both does and does not appear at the verdict, it does not arise during the progress of the cause, or until the defend- ant takes out his pocket book to pay the judgment. Stare decisis! This objection has nothing in it. Judgment for sixteen dollars." Another learned tribunal varies the reasoning; thus, "Two and two are four. So much is conceded. It Is likewise plain that we have here a four, a two, too, another two, too, and the two repeated two times. The result is six twos, amounting to twelve, and an added four, making in all sixteen. Consequently the plaintiff may, at the hearing, prove four or sixteen as be is able, and have judgment accord- ingly. The two sums are one money, and are equally well charged in the declara- tion." On another occasion, a learned judge pronounces the unanimous opinion of the court as follows : " This great ques- tion, whether the sum of two and two is uniformly four, or is both four and sixteen with authority in the plaintiff to elect at 20 the rendering of the verdict which on the particular occasion he will have it, has been most ably argued before us. We have been urged to use our reason upon it, but we sit here for no such purpose. The judicial function is to .administer, not rea- son, but law. Our guide is Stare decisis ; which, as the counsel for the plaintiff has learnedly pointed out, signifies ' Stand still, reason ' On behalf of the defendant it has been made to appear, that there are decisions on his side of the question. True, but an exact count shows the others to be the more numerous. Here we are reminded that the defendant asks us to count. He says, ' Put up two fingers, then two more, and the result of counting, them will be four every time, never sixteen.' But, Stare decisis. . We must first count the decisions, to ascertain whether we are per- mitted to count the fingers. So, counting the decisions, we find ourselves forbidden, sitting here as judges, whatever we might do off the bench, to count the fingers. The weight, indeed the great weight, of authority compels us to stop counting, and to hold, as most confidently and unanimously we do, that the sum of two and two is both four and sixteen, and the plaintiff may have it the way he chooses when the ver- dict is given in. The further question re- mains, whether it is not also twenty ; but we are happily not compelled to decide it in this case. When that question does arise, we shall meet it fairly and dispassion- ately, and render judgment agreeably to the analogies of this branch of our Law. We shall here simply intimate as to it, that, since four dollars and sixteen dollars are one money, differing only in degrees, — the sixteen being in the first degree and the four in the second degree, — and since, as by an immense weight of authority it is held, the four dollars include the sixteen dollars, BO that when you charge a man with four dollars you charge him also by force of the logic of the law with sixteen, we do not as at present advised pee any ground to doubt that their sum, which is twenty dollars, may be one money also; included, the same as the sixteen, by the logic of the law in the four. At all events, whenever the question arises, we, sitting § 547 SPECIFIC OFFENCES. [BOOK III. title. Only the writing of some half-dozen additional words is required for this, and then all is plain to the defendant, to the jury, and to the trial judge. It is likewise an excellent fore- stalling of troubles which might arise at the verdict. And alto- gether it is easier, while it is simpler, in this matter as in many others, to do right than to do wrong. Another consideration, of perhaps some consequence, is, that no prosecuting officer can V)e absolutely sure of the prolongation of the sleep of his court. The case, he should remember, is of the exceptional class to which the rule of stare decisis does not apply ; because the applicant for the overruling of the doctrine is the defendant who waives all claim under it,^ and there is no individual whom such over- ruling can harm ; while the only party to oppose is the State, that, having no interest to perpetuate what is wrong, but every interest to have the wrong corrected, must be conclusively pre- sumed both to consent and to join in the prayer for reversal ; ^ and because this is of the sort of decisions which, originating in a blunder, and overturning fundamental law and natural and consti- tutional right, no number of repetitions can render permanent.^ III. Practical Suggestions. § 547. Useless Technicalities — (Following Beaten Path). — The reader perceives that the indictment for felonious homicide, when drawn strictly after the common-law rules, with all the allegations which a cautious pleader will introduce in order to prevent troublesome questions at the trial, contains more useless technicalities than the common-law indictment for most other ofPences. Yet there is nothing about it difficult, or loudly calling for reform. The extremely short form, giving the defendant no real information and furnishing no sort of guide for the trial, authorized by statute in England and a few of our States,* is a heavy lurch in the other direction. On the whole, therefore, here as supreme judges, and administering allegations for murder in the first degree. law, not reason, shall count the cases, not But — stare decisis! If Stare Decisis has . our fingers. Nor shall we suffer reason to the feelings of an animal, we ought to get beguile us from the path of duty. Stare up a society for its protection from cru- . decisis !" 1 could carry out this illustrative elty. case to a very great length, and every sup- i Crim. Proced. I. § 117 et seq. posed absurdity would be matched by a ^ Crim. Law, I. § 93-97. real one, substantially identical with it, in ' Bishop First Book, § 455-458. . opinions of courts on this question of the * Ante, § 542. 306 CHAP. XLII.] HOMICIDE — SUBSTANTIVE. §548 there is no very urgent reason why the pleader should not, in this ofiFence as in others, travel the beaten highway, where he can know of a certainty that every step is on solid ground, and where- in the utmost fairness to the prisoner is secured. A prosecuting officer, who wishes to obtain just verdicts of conviction, will do best to appear before the jury as being, and to be, fair and open in all his steps, and in his allegations in the indictment reason- ably full yet not oppressively diffuse. He should neither seek nor seem to banish from himself the thought, which will certainly be in the consulting-room of the jury, that the question at issue is of the life or ignominious death of a fellow-being, of like feel- ings and aspirations with ourselves. § 648. Preparation. — Cases of this class make a special call on the counsel both for the prosecution and for the defence to pre- pare carefully the case in advance of the trial. Questions of expert evidence, circumstantial evidence, the competency of ju- rors, and some others, all requiring the most exact and cautious consideration, are particularly liable to present themselves in these capital cases. And counsel should never enter upon the trial until he has become thoroughly master of all such questions as by any possibility may arise. 307 § 651 SPKCIFIC OFFENCES. [BOOK III. CHAPTER XLIII. HOMICIDE, ATTEMPTS BY ASSAULT AND OTHERWISE TO COMMIT.^ § 549. Elsewhere. — The forms of the indictment for attempts, which necessarily include the attempt wrongfully to take human life, are considered in a general way in another chapter.^ And in the chapter on "Assault and Battery" we saw how compound as well as simple assaults and assaults and batteries, the com- pound ones including those which are committed with intent to kill, are to be charged.^ So that — § 560. For this Chapter — it remains only to present a few explanations, practical suggestions, and forms, and to cite places where other forms may be found. § 551. Sufficient, but not ordinarily Best — (Alleging Act). — Undoubtedly, under the common law, or any statute the terms whereof would be duly covered, it would be adequate, in analogy to the common method of charging the attempt to cheat by false pretences,* to aver, that, at a specified time and place, the defend-, ant did, &c. proceeding to set out his act, as for an accomplished murder or manslaughter, in the words of any of the forms in the last chapter ; but, instead of continuing to the fatal result, say- ing, " with intent," &c. Yet, in this attempt upon life, one need not, to be punishable, go so far as to perform all the acts neces- sary to complete the substantive felony if they should prove fatal ; he is required only to take a step toward the fatal result, of sulBcient magnitude and reaching sufficiently near it for the 1 For the direct explanations of this 803 ; II. § 730 ; Stat. Crimes, § 225 ; also, offence, with the pleading, practice, and many other places, evidence, see Crim. Law, II. § 739-743; ^ Ante, § 100-112. Crim. Proced. 11. § 643-663. And see the ' And see particularly ante, § 206, 212, title Attempt in both Crim. Law and 213. Crim. Proced. Incidental, Crim. Law, I. * Ante, § 434. § 413, 441, 736, 750, 751, 756, 758, 768 a, 308 CHAP. XLIII.] HOMICIDE — ATTEMPT. § 554 law's notice.^ And it would be idle to allege acts neither per- formed in fact nor in law essential to the attempt charged. For which and other reasons, there is ordinarily a simpler way, and practically better ; while yet doubtless, in special circumstances, this should be preferred. § 552. Alleging Intent. — The part of the indictment requiring more than ordinary care is the allegation of the defendant's in- tent. Such intent must have been in fact, and in some appro- priate terms it must be charged to have been, to take life ; not merely to do what, if death followed, would constitute common- law murder or manslaughter.^ Now, a man contemplating the taking of another's life does not first lay before his mind the law's classifications of homicide, and then resolve to commit man- slaughter, or common-law murder, or murder in the first degree, or murder in the second degree ; but he simply determines to kill the hated person, or to kill him by means which he has de- vised, and elude the law altogether. Our statutes, the terms whereof must be duly covered by any indictment upon them, have such expressions as " with intent to kill," " with intent to commit manslaughter," " with intent to commit murder," " with intent to commit murder in the first degree," and the like. Now, — § 553. Meaning of Statutory Terms as to Intent. — In general, the verb "to kill," in such a connection, requires only the intent to do what would constitute, if done, either murder or man- slaughter. And if the two words " kill and murder " are in the indictment, proof of an intent to commit manslaughter will sat- isfy the former, and of an intent to commit murder the latter ; and there may be a conviction of one or both, or a conviction of the one and an acquittal of the other, upon the same count.^ But in some connections in a statute, the words " intent to kill " may be interpreted, and they have been so in Mississippi, to sig- nify the intent to commit murder.* Whereupon, — § 554. What Intent in Fact is within Statute. — If one, meaning to deprive another of life, adopts measures which, should they 1 Crim. Law, I. § 728, 768 a. * Morman v. The State, 24 Missis. 2 lb. § 729, 730, 736 ; II. § 741. 54 ; Bradley v. The State, 10 Sm. & M. 8 The State w. Butman, 42 N. H. 490; 618; Morgan v. The State, 13 Sm. & M. Hall V. The State, 9 Fla. 203; The State 242; Anthony v. The State, 13 Sm. & M. V. Reed, 40 Vt. 603. And see The State 263. V. Calligan, 17 N. H. 253. 309 § 556 SPECIFIC OFFENCES. [BOOK III. succeed, would render the killing murder, he becomes, on his measures failing, guilty of what the statutes term an " attempt to commit murder ; " or, if the consummated offence would have been manslaughter, guilty of an " attempt to commit man- slaughter ; " and so of all the rest. When thus he has resolved to kill, the grade of his attempt will be what the killing would have been had he succeeded.^ And — § 555. Form of alleging Intent. — The common and prudent method of alleging this intent, not inquiring whether any other is permissible, is after its legal effect in distinction from its out- ward form ; ^ as, " with intent to kill the said X," ^ or, " with intent to murder the said X," * or " with intent to kill and mur- der the said X," ^ or " with intent feloniously and of his malice aforethought to kill and murder the said X," ^ or, " with intent feloniously and of his malice aforethought to commit murder in the first degree." ^ § 556. Joining Intents. — Where the statutes have indicated as within their penalties several distinguishable intents, like those just explained, and the pleader is uncertain which one of them will be proved at the trial, he may in general, within principles already stated,^ join in allegation, in a single count, any number of intents, connecting them by the conjunction " and," and have a verdict for the highest or a lower one, or a general verdict, as the jury may deem the fact to have been. And this is so even under a statute in such words as " to kill or do other bodily in- jury," where an intent short of taking life is introduced.* But where different statutes have created different crimes out of the 1 Crim. Law, II. § 740-742. 111. 500 ; Baccigalapo v. Commonwealth, 2 Crim. Pioced. I. § 3.32-334. 33 Grat. 807 ; Murphy v. Commonwealth, 8 The State o. Greenhalgh, 24 Misso. 23 Grat. 960 ; Crookham v. The State, 5 373; TheStateK. Chandler, 24 Misso. 371. W. Va. 510; The State v. Danforth, 3 ^ People D. Pettit, 3 Johns. 511 ; Payne Conn. 112. Verdict for Assault. — Of V. The State, 5 Texas Ap. 35 ; Montgom- course, also^the verdict may be for a simple cry V. The State, 4 Texas A p. 140. assault, if no more is proved and the indict- 5 The State v. Painter, 67 Misso. 84 ; ment alleges it ; unless the aggravated The State v. Newberry, 26 Iowa, 467. offence is by statute a felony, and the sim- •> Commonwealth v. Galavan, 9 Allen, pie assault is a misdemeanor, and the com- 271; Commonwealth v. Nutter, 8 Grat. mon-law rule applicable to such a case has 699 ; Nixon v. People, 2 Scam. 267 ; McCoy not been altered by statute, as it has in V. The State, 3 Eng. 451 ; Eobinson v. many of our States. Commonwealth v. The State, 5 Pike, 659. Lang, 10 Gray, 11 ; The State v. Shepard, ' The State v. Saylor, 6 Lea, 586. 10 Iowa, 126 ; Boyd o. The State, 4 Minn. 8 Ante, § 18-21, 254, 457, 460, 535. 321 ; Strawn v. The State, 14 Ark. 549 ; 9 Ante, § 553 ; Beckwith v. People, 26 Warrock v. The State, 9 Fla. 404. 310 CHAP. XLIII.] HOMICIDE — ATTEMPT. § 556 same act, depending on similar yet not identical intents, and the indictment charges the intent of one of the statutes only, there cannot be a conviction on the other statute upon proof of its analogous intent which is not charged. ^ Then how, in a case of this sort, would it be if the indictment set out the one act com- mon to the two statutes, and charged both intents, coupled by " and " ? There are dicta and perhaps adjudications almost or quite to the point that such an indictment would be bad for duplicity J^ But certainly it is not double. An act, not merely an intent, is essential to every offence.^ Consequently in reason, and equally on authority,* it is not duplicity in an indictment for attempt to charge one act as committed with two or more intents. Nor does the existence, in fact, of needless intents, im- pair the eflScacy of the needful ones;^ therefore the allegation of tlie former in the indictment will not harm it. If, then, dis- tinct statutes make punishable a particular act differently when done with this intent, or that intent, or still another, which they severally specify, an indictment is not double, nor is it objection- ably repugnant, if it charges that A did the act with all the intents conjunctively coupled. Indeed, the single fact might be so, and yet the complication of intents in the doer would furnish no ground for his escape. The only objection, therefore, to an indictment setting out this entire single fact, is the possible un- certainty upon which one of several statutes the indictment is drawn.^ The mere language of some of the cases would seem to give validity to this objection, and perhaps some of the courts will sustain it. But the author submits, that the law in its reasons and common practice is against the objection. The in- dictment is to be deemed on the statute inflicting the heaviest penalty. If the intent of that statute is not proved at the trial, then it drops to the statute inflicting the heaviest penalty for what is proved. Nor is there anything unusual or inconvenient in this. If one section of a statute provides a punishment for a simple felonious killing, and another for the felonious killing when done of malice aforethought, the indictment may be still, as at common law, for murder, and the verdict for manslaughter ; so that the defendant is not convicted under the statutory 1 Morman v. The State, 24 Missis. 54. « Criin. Proced. I. § 437. 2 Dawson v. People, 25 N. Y. 399; 5 Crim. Law, I. § 337-339. Pontius V. People, 82 N. Y. 339. ^ Crim. Proced. I. § 612. 3 Crim. Law, I. § 204, 206. 311 § 558 SPECIFIC OPPENCES. [BOOK III. provision on which he is indicted. And all this is inherently just. § 557. Forms of Indictment — for this attempt are, in consid- erable numbers, given in " Criminal Procedure." ^ These, in connection with what can be found at the places referred to in the opening section of this chapter, might probably be deemed sufficient for the pleader. Yet something more will be con- venient. § 558. General Formula and Forms. — A general formula, com- prehending forms for the indictment which, when on a statute, should be modified to cover the statutory terms, may be, — That A, &c. [ante, § 74-77], on, &c. at, &c. [ante, § 80] did [feloni- ously ^], with a club [or, gun loaded with gunpowder and a leaden ball, or, &c. following the statute and the special fact], being a dangerous weapon,' which he then and there had and held,^ make an assault on one X,* and him the said X with the said club did [feloniously] beat and bruise \or, at and against the said X (feloniously) discharge the said loaded gun, thereby and by force of the ball from the same grievously wounding the said X],° \or, administer, &c. poison, as at ante, § 213, 533] ; with intent then and there feloniously and of his malice aforethought to kill and murder' the said X \or, &c. setting out the intent or intents in the statutory terms, and as directed ante, § 552-556] ; against the peace, &c. [ante, § 66-69].' 1 Grim. Proced. II. § 645, 651-655. 8 for forms see ante, § 110-112, 200 et ^ The attempt is in some of the States seq. ; Crim. Proced. II. § 645, 651-655; a, statutory felony, but at common law it is Archb. Crim. PI. & Ev. 19th ed. 706-713 ; misdemeanor. Crim. Law, II. § 743. 3 Chit. Crim. Law, 791, 795-797, 828, 829, 8 Ante, § 212, note. 1096; 6 Cox C. C. App. 108, 109, 117; * Crim. Proced. II. § 656 ; ante, § 520, Reg. v. Giles, 7 Howell St. Tr. 1130; Rex note. V. Goodman, stated 13 Howell St. Tr. 359 ; 5 Compare with ante, § 206 and 212, Rex v. Towle, Russ. & Ry. 314; Rex v. where also the form is sufficient. Ford, Russ. & Ry. 329 ; Rex v. Voice, 8 None of this setting out of a battery Russ. & Ry. 531 ; Kex v. Withers, 1 Moody, is necessary under a statute making the 294; Reg. v. Most, 7 Q. B. D. 244, 14 Cox offence consist of assault, not assault and C. C. 583, 585 ; Reg. u. Dilworth, 2 Moody battery, with a dangerous weapon with in- & R. 531; Sinclair's Case, 2 Lewin, 49; tent, &c. Ante, §212; Crim.Proced.il. Elmsly's Case, 2 Lewin, 126; Reg. v. § 658 ; The State v. Painter, 67 Misso. 84 ; Lewis, 9 Car. & P. 523 ; Reg. v. Pearce, 9 Harrison v. The State, 2 Coldw. 232. Car. & P. 667 ; Reg. v. March, 1 Car. & K. ' Without authorities to guide rae, I 496 ; Shea i). Reg. 3 Cox C. C. 141 ; Reg. should say, on principle, that, while this v. Brady, Jehb, 257 ; Reg. v. McEvoy, 20 expression charges the intent to commit U. C. Q. B. 344. murder, if the proof shows it to have been Alabama. — Shaw v. The State, 18 Ala. to commit manslaughter the words " mal- 547 ; Wood v. The State, 50 Ala. 144 ; ice aforethought" and "murder" may be Meredith v. The State, 60 Ala. 441. rejected as surplusage, and the allegation Arkansas. — Robinson v. The State, 5 so reduced will sustain a verdict of attempt Pike, 659 ; MeCoy u. The State, 3 Eng. to commit manslaughter. And see ante, 451; Cole v. The State, 5 Eng. 318 ; Milan § 555, 556. 0. The State, 24 Ark. 346, 348 ; Lacefield 312 CHAP. XLIII.] HOMICIDE — ATTEMPT. 559 § 559. other Forms. — Considering the forms given in the other places in this volume already referred to, and in " Criminal V. The State, 34 Ark. 275 ; Butler v. The State, 34 Ark. 480. California. — People v. English, 30 Cal. 214 ; People v. Swenson, 49 Cal. 388 ; People o. Alibcz, 49 Cal. 452. Connecticut. — The State v. Danforth, 3 Conn. 112; The State v. Nichols, 8 Conn. 496. Florida. — Warrock v. The State, 9 Fla. 404; Sumpter v. The State, 11 Fla. 247; Sherman v. The State, 17 Fla. 888. Georgia. — The State v. Howell, 1 Ga. Decis. 158 ; Monday v. The State, 32 Ga. 672 ; Jones v. The State, 37 Ga. 51 ; Prior V. The State, 41 Ga. 155 ; Bard v. The State, 55 Ga. 319 ; Plain v. The State, 60 Ga. 284. Illinois. — Curtis v. People, Breese, 197 ; Curtis v. People, 1 Scam. 285 ; Nixon V. People, 2 Scam. 267 ; Beckwith v. Peo- ple, 26 111. 500 ; Hanrahan v. People, 91 111. 142, 144. Iowa. — The State v. Graham, 51 Iowa, 72. Kansas. — Millar v. The State, 2 Kan. 174; The State v. Finley, 6 Kan. 366; The State v. White, 14 Kan. 538; The State V. Bybee, 17 Kan. 462 ; The State v. Miller, 25 Kan. 699; The State v. Bever- lin, 30 Kan. 611. Kentucky. — Commonwealth v. Patrick, 80 Ky. 605, 606. Louisiana. — The State v. Green, 7 La. An. 518 ; The State v. Munco, 12 La. An. 625 ; The State <^. Thomas, 29 La. An. 601 ; The State v. Bradford, 33 La. An. 921. Maryland. — The State v. Dent, 3 Gill & J. 8. Massachusetts. — Commonwealth v. Creed, 8 Gray, 387 ; Commonwealth v. Lang, 10 Gray, 11 ; Commonwealth v. Galavan, 9 Allen, 271 ; Commonwealth v. Bearse, 108 Mass. 487. Michigan. — Rice v. People, 15 Mich. 9, 15 ; Hanna v. People, 19 Mich. 316. Mississippi. — Ainsworth v. The State, 5 How. Missis. 242 ; Jones o. The State, 11 Sm. & M. 315 ; Morgan v. The State, 1 3 Sm. & M. 242 ; Brantley v. The State, 13 Sm. & M. 468 ; Sarah o. The State, 28 Missis. 267 ; Williams v. The State, 42 Missis. 328. Missouri. — The State o. Comfort, 5 Misso. 357 ; The State v. Jordan, 19 Misso. 212 ; The State «. Chandler, 24 Misso. 371 ; The State c.. Greenhaigh, 24 Misso. 373 ; The State . Dyer, 128 followed in the above form) ; Murrell v. Mass. 70. The State, 44 Ala. 367 ; The State v. 5 Constitutional, Commonwealth ». Daniel, 89 N. C. .553 ; Roseberry v. The Hamilton Manuf Co. 120 Mass. 388. State, 50 Ala. 160. Indentured Servant. Form, &c. Commonwealth w. Osborn Mills, As to harboring an indentured servant, 130 Mass. 33. or enabling him to escape, see The State v. ^ For decisions relating thereto, see Hooper, l^Houst. Crim. 17; The State v. Crim. Law, I. § 564, note. Owens,' 1 Honst. Crim. 72. Old Forms. ' United States v. Peterson, 1 Wopdb. — Under various former English provisions & M. 305; Reg. v. McGregor, 1 Car. & K. not in force with us, — for enticing artificers 429 ; Reg. ;;. Smith, 3 COx C. C. 443 ; Reg. out of the kingdom. Rex v. Cox, Trem. v. Jones, 11 Cox C. C. 393. Disobeying P. C. 252 • 2 Chit. Crim. Law, 542, 544. Commands — of officer of ship. United For exercising a trade, not having served States b. McArdle, 2 Saw. 367. 323 § 582 SPECIFIC OFFENCES. [bOOK III. CHAPTER XLIX. LARCENY, SIMPLE AND COMPOUND.^ § 581. In General of Form of Indictment. — The indictment for larceu}'-, except under statutes which have changed the essential ingredients of the offence,^ is, in the absence of any statutory aggravation, — that is, for simple larceny, — uniform in its allega- tions of the wrong. ^ If a statute has provided a heavier punish- ment for it when committed under special circumstances of time, place, or the like, the indictment should be merely enlarged by a proper averment of the particular aggravating matter, drawn on the statutory terms.* In the description of the property stolen, the averments will vary with the facts of the individual case. Therefore, in the expositions of this chapter, we shall not have occasion to encumber the pages with numerous repetitions of those parts of forms which are the same in all. § 582. Formula for Indictment — The allegations may be, — That A, &c. [ante, § 74-77], on, &c. [^add, if the punishment is heavier when the larceny is in the night, the averment in ante, § 87, but doubtless the hour need not be stated unless the statute makes it an element in the aggravated offence *], [with force and arms '], at, &c. [ante, § 80], one silver spoon ' of the value of three dollars, two, &c. [setting down all the 1 For the direct expositions of this of- 1010, 1056-1060, 1112, 1124 ; II. § 74, 87- fence, with the pleading, practice, and evi- 92, 142-145, 152, 185, 230, 315-319, 325, dence, see Crim. Law, II. § 757-904 ; Crim. 989, 1001; Stat. Crimes, § 7, 127, 140, Proced.n.§ 696-780; Stat. Crimes, § 409- 205, 209, 211, note, 213, 222, 232-234, 246, 429. Incidental, Crim. Law, I. § 137-142, 247, 248, 325-344, 454. And see Embez- 207, 224, 232, 260, 262, 263, 297, 320, 342, zlement — Robbery. 349, 411, 426, 440, 566, 567, 578, 579, 582, 2 Stat. Crimes, § 414, 418. 583, 585, 654, 676, 679, 680, 741, 743-745, 3 Crim. Proced. II. § 697. 757, 767, 792, 795, 796, 799, 801, 811, 935, i lb. II. § 772 ; Stat. Crimes, § 415, 937, 942, 974, 1052, 1055, 1061-1064, 1066; 416. II. § 319, 320, 327-329, 365, 368, 1084, 6 Crim. Proced. I. § 399; II. § 131- 1156; Crim. Proced. L § 59, 60, 241, 397, 133. 449, 480-483, 488 6, 488 e, 530, 541, 553, 6 Not necessary. Ante, § 43. 573, 575, 580, 583, 590, 616, 620, 639, note, ' Order of Averments.— I am foUow- 324 CHAP. XLIX.] LARCENY — SIMPLE AND COMPOUND. § 582 Stolen articles in like manner, and giving the separate value of each ^], of the property ot^ X [ante, § 78, 79], [then and there being found'], in and from the dwelling-house of the said X * [or, from the person of the said X ; ^ or, &c. setting out, according to the fact, and in the statutory terms, any other aggravating matter which of law enhances the punishment], felo- niously did steal, take, and carry away ; ^ agaiust the peace, &c. [ante, § G5-69].' ing the old order of the averments, which the pleader can change if he chooses. It is specially suited to the present use. The translations of our old common-law indict- ments from Latin to English (Crim. Pro- ced. I. § 340, 341 ; 4 Bl. Com. 323) were literal to the extent even of preserving the Latin idiom. Hence many of the old forms have come to us constructed in ways not to be approved by any critic of English sen- tences. Some of them I have slightly varied in what was not material, to render them more nearly good English. Yet in this I am not without judicial precedent. I could find precedents for treating this in- dictment in the same way. But the old form is so convenient that many pleaders will feel justified in objecting to any change. 1 An indictment stating simply the ag- gregate value of enumerated articles is not bad in law; but so many and so grave dif- ficulties are liable to arise upon it at the trial and verdict^ that the judicious pleader will not ordinarily allege the value in this way. Crim. f roced. II. § 714. As to when the allegation of value may be omitted, see lb. § 713; Stat. Crimes, § 427. 2 Instead of these words, "of the prop- erty of," the old and common precedents have, " of the goods and Chattels of" At the common law, there could be no larceny of anything except goods and chattels; therefore the expression was always accu- rate and appropriate. But our statutes have made various other things the subjects of larceny. And the word "property" covers in meaning the whole, and it is lield to be good for all. This part of the indict- ment is generally printed in the pleader's blanks (ante, § 51), and convenience re- quires it to be in language which will suf- fice for all cases. Crim. Proced. II. § 697, 699, 718, 736. 5 Nearly universal in the precedents. It is eliminated from the late English ones. Archb. Crim. PI. & Ev. 19tb ed. 344; 6 Cox C. C. App. 1 ; Keg. u. Evans, 7 Cox C. C. 151 ; and from various others, The State V. Eenn, 41 Conn. 590 ; Musquez v. The State, 41 Texas, 226 ; The State <,-. Hoppe, 39 Iowa, 468 ; The State v. Taunt, 16 Minn. 109. It was long ago adjudged unnecessary. Crim. Proced. II. § 697. In just meaning, it seems to point to the idea of the thing being lost ; for which and for other reasons, as well as because it occupies needless space, it is better omitted. * Crim. Proced. II. § 777, 778. 6 lb. § 780. ^ Hale says, " The indictment runs vi et armis felonice faratus fali, cepit, et asporia- vit, in case of dead chattels ; cepil et ab- duxit, in case of a liorse; cepit et effugavit, in case of sheep, cows, &c. ; wherein the words feloiiice, furatus fait, cepit, are essen- tial to the crime." 1 Hale P. C. 504. With us, and in England in the modem cases, this distinction is occasionally noted ; but there can bo no doubt that the form in the text is for every sort of larceny legally sufficient. Crim. Proced. II. § 698. If we assume that, in Commonwealth v. Adams, 7 Gray, 43, the court was right in holding the indictment ill for omitting the word " away," the expression being " steal, take, and carry," so that " carry away," or " lead away," or "drive away" is essential, still " carry away " includes in meaning the other two. One of the definitions of " car- ry," according to Webster, is, " to cause to go ; " a.s, Iti the expression, " The king of Assyria did carrijaivatj Israel to Assyria." In like manner one may be said to "carry away" a horse or a sheep, when he no more bears the animal on liis shoulders or in his arms than did the Assyrian king thus bear " Israel." Indeed, another of the meanings is, " to remove, lead, or drive ; " as in " He carried awaij all his cattle." As this part of the form is commonly printed in our blanks, I should not recommend undergoing the inconvenience of changing it for special cases. ' Eor precedents, see 3 Chit. Crim. Law, 325 §583 SPECIFIC OFFENCES. [book m. § 683. Simple — Compound. — The reader perceives, that the allegations for a simple and for a compound larceny are the 77, 10 Cox C. C. 459 ; Reg. v. Bailey, Law Rep. 1 C. C. 347, 12 Cox C. C. 129; Reg. V. Tatlock, 2 Q. B. D. 157, 13 Cox C. C. 328 ; Rex u. Hurrell, Ryan & Moody N. P. 296 ; Reg. u. Trevenner, 2 Moody & R. 471 ; Reg. v. Hinley, 2 Moody & K. 524 ; Rex D. John, 7 Car. & P. 324; Reg. v. Welham, 1 Cox C. C. 192; Campbell v. Reg. 1 Cox C. C. 269 ; Reg. v. Evans, 7 Cox C. C. 151; Reg. v. Toole, 11 Cox C. C. 75 (treasure-trove) ; Reg. v. Halford, 11 Cox C. C. 88; Reg. o. Henwood, 11 Cox C. C. 526 ; Reg. v. Roe, 11 Cox C. C. 554; Reg. v. Henderson, 11 Cox C. C. 593; Reg. v. Butterworth, 12 Cox C. G. 132, 2 Eng. Rep. 195; Reg. v. Bird, 12 Cox C. C. 257, 4 Eng. Rep. 533 ; Reg. v. Matthews, 12 Cox C. C. 489, 6 Eng. Rep. 329; Reg. v. Hancock, 14 Cox C. C. 119; Reg. V. Tonkinson, 14 Cox C. C. 603 ; Reg. V. Barran, Jebb, 245. Alabama. — The State v. Seay, 3 Stew. 123 ; The State v. Greenwood, 5 Port. 474 ; Williams v. The State, 15 Ala. 259 ; Mur- ray 17. The State, 18 Ala. 727 ; Foster v. The State, 39 Ala. 229; Alsey v. The State, 39 Ala. 664 ; Sallie v. The State, 39 Ala. 691 ; Moore v. The State, 40 Ala. 49 ; Maynard v. The State, 46 Ala. 85 ; Parmer V. The Slate, 41 Ala. 416 ; Sheppard v. The State, 42 Ala. 531 ; WiUiams v. The State, 44 Ala. 396 ; Ward v. The State, 48 Ala. 161 ; Du Bois n. The State, 50 Ala. 139 ; Smith v. The State, 55 Ala. 59 ; Hunt !;. The State, 55 Ala. 138; StoUen- werk V. The State, 55 Ala. 142; Grant v. The State, 55 Ala. 201 ; Bonner v. The State, 55 Ala. 242 ; Rountrce v. The State, 58 Ala. 381 ; Johnson v. The State, 59 Ala. 37, 38 ; Harris v. The State, 60 Ala. 50 ; Adams v. The State, 60 Ala. 52 ; Peacher v. The State, 61 Ala. 22; Mc- Dowell t. The State, 61 Ala. 172; Lyon V. The State, 61 Ala. 224 ; Roberts v. The State, 61 Ala. 401 ; Piiickard v. The State, 62 Ala. 167 ; Duvall v. The State, 63 Ala. 12 ; Smitherman v. The State, 63 Ala. 24. Arkansas. — Wilson v. The State, 5 Pike, 513 ; Barton v. The State, 29 Ark. 68; Johnson w. The State, 32 Ark. 181; The State v. Jourdan, 32 Ark. 203 ; The State V. Parker, 34 Ark, 158 ; The State v. 959-988, 1098, 1118; 4 Went. PI. 41-44; 6 lb. 1, 2; 4 Cox C. C. App. 18; 6 lb. App. 1-13, 16-18; Reg. v. Callingwood, 2 Ld. Raym. 1116; Rex v. Johnson, 3 M. & S. 539 ; Rex v. Somerton, 7 B. & C. 463 ; Campbell u. Reg. 11 Q. B. 799, 800 ; Rex i;. Hickman, 1 Leach, 4th ed. 318; Rex v. Pope, 1 Leach, 4th ed. 336 ; Rex v. God- dard, 2 Leach, 4th ed. 545 ; Rex v. Gra- ham, 2 Leach, 4tli ed. 547 ; Rex v. Burnel, 2 Leach, 4th ed. 588 ; Rex v. Campbell, 2 Leach, 4th ed. 564 ; Rex v. Owen, 2 Leach, 4th ed. 572 ; Rex v. Etherington, 2 Leach, 4th ed. 671 ; Rex v. Palmer, 2 Leach, 4th ed. 680 ; Rex v. Pooley, 2 Leach, 4th ed. 900, 3 B. & P. 315; Rex v. Clarke, 2 Leach, 4tb ed. 1036 ; s. c. nom. Rex v. Clark, Russ. & Ry. 181 ; Rex v. Walsh, 2 Leach, 4th ed. 1054 ; Rex v. Craven, Russ. 6 Ry. 14; Rex u. Pearson, 1 Moody, 313, 314 ; Reg. v. Heath, 2 Moody, 33 ; Reg. v. Jones, 1 Den. C. C. 101, 2 Car. & K. 165; Reg. V. HoUoway, 1 Den. C. C. 370 ; Reg. t). Martin, 1 Den. C. C 398, 399, 2 Car. & K. 950, 3 Cox C. C. 447 ; Reg. v. Radley, 1 Den. C. C. 450, 2 Car. & K. 974, 3 Cox C. C. 460 ; Reg. v. Matthews, 1 Den. C. C. 596 ; Reg. v. Craddock, 2 Den. C. C. 31, 4 Cox C. C. 409 ; Reg. v. Clark, Dears. 198, 3 Car.'&K. 367, 6 Cox C. C. 210; Reg. V. West, Dears. & B. 109, 110, note, 7 Cox C. C. 183 ; Reg. v. Gorbutt, Dears. & B. 166, 7 Cox C. C. 221 ; Reg. v. John- son, Dears. & B. 340, 7 Cox C. C. 379 ; Reg. u. Jennings, Dears. & B. 447, 7 Cox C. C. 397; Reg. v. Hilton, Bell C. C. 20, 8 Cox C. C. 87 ; Reg. v. Christopher, Bell C. C. 27, 8 Cox C. C. 91 ; Reg. v. Rice, Bell C. C. 87, 8 Cox C. C. 119; Reg. v. Betts, Bell C. C. 90, 8 Cox C. C. 140 ; Reg. V. Huntley, Bell C. C. 238, 8 Cox C. C. 260 ; Reg. v. Hughes, Bell C. C. 242, 8 Cox C. C. 278 ; Reg. v. Loose, Bell C. C. 259, 8 Cox C. C. 302 ; Reg. ,.. Pierce, Boll C. C. 235, 8 Cox C. C. 344 ; Reg. v. Hol- man, Leigh & C. 177 ; Reg. v. Fallon, Leigh & C. 217, 9 Cox C. C. 242 ; Reg. v. Thomas, Leigh & C. 313, 9 Cox C. C. 376 (treasure-trove) ; Reg. v. Collins, Leigh & C. 471, 9 Cox C. C. 497 ; Reg. v. Johnson, Leigh & C. 489, 10 Cox C. C. 13; Reg. i;. Lowrie, Law Rep. 1 C. C. 61, 10 Cox C. C. 388 ; Reg. u. Gregory, Law Rep. 1 C. C. 326 CHAP. XLIX.J LARCENY — SIMPLE AND COMPOUND. §583 same ; except that, in setting out the latter, the pleader intro- duces into the form for the former, in a manner to cover the McMinn, 34 Ark. 160 ; Boykin v. The State, 34 Ark. 443. California. — People v. Winkler, 9 Cal. 234 ; People v. Green, 15 Cal. .'512 ; People V. Connor, 17 Cal. 354; People c. Brown, 27 Cal. 500 ; People v. Quvise, 56 Cal. 396. Connecticut. — The State v. Holmes, 28 Conn. 230 ; The State v. Wilson, 30 Conn. 500 ; The State v. TuUer, 34 Conn. 280 ; The State v. Fenn, 41 Conn. 590. Georgia. — McCoy v. The State, 15 Ga. 205 ; Davis v. The State, 33 Ga. 98 ; Black V. The State, 36 Ga. 447 ; Davis v. The State, 40 Ga. 229 ; Frain v. The State, 40 Ga. 529, 531 ; Jenkins v. The State, 50 Ga. 258 ; Carter v. The State, 53 Ga. 326 ; Inman v. The State, 54 Ga. 219 ; Alder- man V. The State, 57 Ga. 367, 368 ; Miller V. The State, 58 Ga. 200 ; Smith v. The State, 60 Ga. 430. Idaho. — People v. Freeman, 1 Idaho Tor. N. s. 322. Illinois. — Myers a. People, 26 111. 173. Indiana. — The State a. Murphy, 8 Blackf. 498 ; Hall v. The State, 8 Ind. 439 ; Daily v. The State, 10 Ind. 536 ; Ulmer v. The State, 14 Ind. 52; Holland u. The State, 22 Ind. 343 ; Walker v. The State, 23 Ind. 61 ; Hoskins v. The State, 27 Ind. 470 ; King v. The State, 44 Ind. 285 ; Beard v. The State, 54 Ind. 413; Hart v. The State, 55 Ind. 599 ; The State v. Mil- ler, 58 Ind. 399 ; Jones v. The State, 59 Ind. 229 ; Good v. The State, 61 Ind. 69; Umphrey v. The State, 63 Ind. 223 ; Gregg V. The State, 64 Ind. 223 ; Johnson v. The State, 68 Ind. 43 ; The State v. Allisbach, 69 Ind. 50; Stout v. The State, 78 Ind. 492 ; The State v. Doe, 79 Ind. 9. Iowa. — The State !^. Hoppe, 39 Iowa, 468 ; The State v. Gleason, 56 Iowa, 203 ; The State u. Mclntire, 59 Iowa, 267 ; The State u. Pierson, 59 Iowa, 271. Kansas. — Wessells u. Territory, Mc- Cahon, 100 ; The State v. Ingram, 16 Kan. 14. Kentuchj. — Elliott v. Commonwealth, 12 Bush, 176 ; McBride v. Commonwealth, 13 Bush, 337 ; Jones v. Commonwealth, 13 Bush, 356; Miller v. Commonwealth, 78 ICy. 15. Louisiana. — The State «. Lartigue, 29 La. An. 642 ; The State v. Thomas, 30 La. An. 600. Maine. — The State v. McAllister, 26 Maine, 374 ; The State v. Satage, 32 Maine, 583 ; The State u. Carver, 49 Maine, 588; The State u. Bartlett, 55 Maine, 200 ; The State v. Stevens, 62 Maine, 284 ; The State V. Leavitt, 66 Maine, 440. Maryland. — Peter v. The State, 4 Har. & McH. 3 ; The State v. Cassel, 2 Har. & G. 407 ; The State v. Dowell, 3 Gill & J. 310 ; The State v. Evans, 7 Gill & J. 290 ; Wedge V. The State, 12 Md. 232. Massachusetts. — Commonwealth v. Smith, 1 Mass. 245 ; Commonwealth u. James, 1 Pick. 375 ; Commonwealth v. Curtis, 11 Pick. 134; Commonwealth v. Merrifield, 4 Met. 468 ; Hope v. Common- wealth, 9 Met. 134 ; Commonwealth v. Simpson, 9 Met. 138 ; Commonwealth u. Williams, 9 Met. 273 ; Commonwealth v. McDonald, 5 Cush. 365 ; Commonwealth V. Adams, 7 Gray, 43 ; Commonwealth u. Beaman, 8 Gray, 497 ; Commonwealth v. Sherman, 105 Mass. 169 ; Commonwealth V. Fortune, 105 Mass. 592 ; Commonwealth V. Glover, HI Mass. 395; Commonwealth W.Smith, 111 Mass. 429; Commonwealth u. Randall, 119 Mass. 107 ; Commonwealth V. Gallagher, 126 Mass. 54. Michigan. — Merwin u. People, 26 Mith. 298 ; Brown v. People, 29 Mich. 232. Minnesota. — The State v. Taunt, 16 Minn. 109; The State y. Loomis, 27 Minn. 521. Missouri. — Steerman u. The State, 10 Misso. 503 ; Wein i;. The State, 14 Misso. 125 ; The State o. Matthews, 20 Misso. 55 ; The State b. Edwards, 36 Misso. 394 ; The State V. Casteel, 53 Misso. 124 ; The State V. Williams, 54 Misso. 170; The State u. Arter, 65 Misso. 653 ; The State v. Eng- lish, 67 Misso. 136, 137.; The State v. Schatz, 71 Misso. 502 ; The State v. Craft, 72 Misso. 456 ; The State v. Welch, 73 Misso. 284 ; The State v. Hughes, 76 Misso. 323. Nevada. — The State v. Berryman, 8 Nev. 262, 268. New Hampshire. — The State v. Nelson, 8 N. H. 163; Arlen v. The State, 18 N. H. 327 §584 SPECIFIC OFFENCES. [book IIL terms of the statute, averments of the special facts which render it compound. So much, therefore, of the foregoing formula as charges a simple larcenjs requiring only to be thus augmented to charge also a compound larceny, is, when reduced to its smallest proportions, — That A, &c. on, &c. at, &c. one, &c. [setting out the things stolen, and their respective values when essential to the punishment], of the prop- erty of X, feloniously did steal, take, and carry away ; against the peace, &c. § 584. By Servant, &c. — Under such statutory words as " if 563 ; The State v. Cotton, 4 Fost. N. H. 143 ; The State v. Goodrich, 46 N. H. 186 ; The State v. Snyder, 50 N. H. 150. New York. — People v. Maxwell, 1 Wheeler Crim. Cas. 163 ; People «. Butler, 3 Cow. 347 ; Phelps u. People, 72 N. Y. 334, 336, 6 Hun, 401, 402, 403 ; People v. Phelps, 49 How. Pr. 437 ; Gibson v. Peo- ple, 5 Hun, 542 ; People v. Jackson, 8 Barb. 637 ; People v. Csesar, 1 Parker C. C. 645 ; Shay v. People, 4 Parker C. C. 353, 355. Nm-th Carolina. — The State u. Jernigan, 3 Murph. 12; The State v. Arrington, 3 Murph. 571 ; The State v. Allen, 3 Hawks, 614; The State v. Clark, 8 Ire. 226; The State V. McLeod, 5 Jones, N. C. 318 ; The State u. Brown, 8 Jones, N. C. 443 ; The State u. Simons, 70 N. C. 336 ; The State i\ Gaston, 73 N. C. 93 ; The State v. Kri- der, 78 N. C. 481 ; The State v. Liles, 78 N. C. 496 ; The State v. McCoy, 89 N. C. 466. Ohio. — Stanley v. The State, 24 Ohio State, 166. Oregon.. — The State v. Lee Ping Bow, 10 Oregon, 27. Pennsi/lvania. — Fulmer v. Common- wealth, 1 Out. Pa. 503. South Carolina. — The State v. Thomas, 2 McCord, 527 ; The State v. Major, 14 Rich. 76 ; The State v. Hamblin, 4 S. C. 1. Tennessee. — Hampton v. The State, 8 Humph. 69 ; Bolton v. The State, 5 Coldw. 650 ; Wedge v. The State, 7 Lea, 687. Texas. — Goodson u. The State, 32 Texas, 121 ; The State v. Stephens, 32 Texas, 155 ; Prim v. The State, 32 Texas, 157; The State v. Mansfield, 33 Texas, 129 ; Potter v. The State, 39 Texas, 388 ; Musquez v. The State, 41 Texas, 226 ; The 328 State V. Earp, 41 Texas, 487 ; The State v. Williamson, 43 Texas, 500, 503 ; Wenz i . The State, 1 Texas Ap. 36 ; Quitzow v. The State, 1 Texas Ap. 47,49; Lavarre u. The State, 1 Texas Ap. 685, 686 ; Har- ris u. The State, 2 Texas Ap. 102, 104 ; Ware u. The State, 2 Texas Ap. 547 ; Addison v. The State, 3 Texas Ap. 40, 42 ; Snow V. The State, 6 Texas Ap. 284 ; Con- ner V. The State, 6 Texas Ap. 455, 459 ; West V. The State, 6 Texas Ap. 485, 486; Lancaster v. The State, 9 Texas Ap. 393 ; Roth K.-The State, 10 Texas Ap. 27 ; Mc- Adams v. The State, 10 Texas Ap. .317; Dreyer v. The State, 11 Texas Ap. 503; Cummins o. The State, 12 Texas Ap. 121, 122 ; Williams v. The State. 12 Texas Ap. 395. 397. Vermont. — The State v. S. L. 2 Tyler, 249; The State u. White, 2 Tyler, 352; The State v. Jenkins, 2 Tyler, 377 ; The State V. Gilbert, 13 Vt. 647 ; The State v. Newton, 42 Vt. 537. Virginia. — Halkem v. Commonwealth, 2 Va. Cas. 4 ; Blevins's Case, 5 Grat. 703 ; Speers v. Commonwealth, 1 7 Grat. 570 ; Adams u. Commonwealth, 23 Grat. 949; Johnson v. Commonwealth, 24 Grat. 555 ; Johnson v. Commonwealth, 29 Grat. 796 ; Robinson v. Commonwealth, 32 Grat. 866. West Virginia. — Fredrick v. The State, 3 W. Va. 695; The State v. Vest, 21 W. Va. 796, 797. Wisconsin. — Ford v. The State, 3 Pin. 449 ; McEntee v. The State, 24 Wis. 43. United States. — United States v. Davis, 5 Mason, 356 ; United States u. Moulton, 5 Mason, 537. CHAP. XLIX.] LAECENT — SIMPLE AND COMPOUND. § 588 any clerk or servant shall steal, &c. of his master," &c. the allegations may be, — That A, &c. on, &c. at, &c. being ^ the servant [or clerk] of X, one, &c. [as in the last form], of the property of the said X his master, did then and there feloniously steal, take, and carry away ; against the peace, &c.'^ § 585. la Night. — The allegations may be, — That A, &c. on, &c. [as in burglary, ante, § 253, 254. And see ante, § 87. The rest as in ante, § 583].= § 586. "With Breaking and Entering. — Where the aggravation consists of breaking and entering a building, wherein the larceny is committed, the analogies of bm'glary will show how the indict- ment should be.* § 587. "With Putting in Pear. — The words of 3 Will. & M. c. 9, § 1, creating some capital felonies, are, among others, " shall felo- niously take away any goods or chattels, being in any dwelling- house, the owner or any other person being therein and put in fear ; " and Chitty has, under this clause, the following : — That A, &c. on, &c. [with force and arms *], at, &c. one silver teapot of the value of, &c. of the goods and chattels of one X, in the dwelling- house of her the said X there situate then and there found and being, felo- niously did steal, take, and carry away ; and her the said X, then and there being in the said dwelling-house, did then and there put in bodily fear of her life ; against the peace, &c.° § 588. Prom Particular Place.'^ — The statutes enhancing the punishment of larcenies when committed in particular places, 1 It would accord with some of the pre- 111 Mass. 395; The State u. Carver, 49 cedents, and it would make the allegation Maine, 588 ; Johnson v. Commonwealth, apparently more precise, to add here " and 29 Grat. 796; The State v. Bartlctt, 55 while he was." But, alike in reason and Maine, 200. authority, it is not necessary. Rex v. * For the form, see ante, § 254, 255; Somerton, 7 B. & C. 463. Crim. Proced. II. § 777 ; 3 Chit. Crim. 2 For other forms and precedents, see Law, 985, 986 ; Johnson v. Commonwealth, Crim. Proced. II. § 775; 6 Cox C. C. App. 29 Grat. 796; Commonwealth v. Glover, 13; Kex v. Somerton, supra; Reg. v. Ill Mass. 395 ; The State v. Baitlett, 55 Heath, 2 Moody, 33 ; Reg. o. Holloway, 1 Maine, 200 ; The State v. Carver, 49 Maine, Den. C. C. 370 ; Reg. v. West, Dears. & B. 588. 109, 110, note, 7 Cox C. C. 183; Reg. v. ^ Needless. Ante, § 43. Gorbutt, Dears. & B. 166, 7 Cox C. C. ^ 3 Chit. Crim. Law, 986; Crim. Pro- 221 ; Reg. v. Jennings, Dears. & B. 447, ced. II. § 778. For a form adjudged not 7 Cox C. C. 397 ; Reg. u. Hinley, 2 Moody good, see Rex v. Etherington, 2 Leach, 4th &R. 524. ed. 671. 8 For precedents, see 3 Chit. Crim. ' Crim. Proced. IL § 778; Crim. Law, Law 972 979 ; Commonwealth o. Glover, II. § 900-902 ; Stat. Crimes, § 233, 234. 329 §589 SPBCIPIO OFFENCES. [book m. which they specify, are in varying terms, and the pleader should be careful to follow those of the one on which he is proceeding. The form, to be varied with the differing statutes, may be, — That A, &c. on, &c. at, &c. did, in the dwelling-house [or shop, or store, or, &c. employing the term in the statute when sufficiently definite '] of X, one, &c. [setting out the articles stolen, and, when necessary, their respec- tive values ^], of the property ' of the said X [or of Y], then being in said dwelling-house [or, shop, &o.],^ feloniously steal, take, and cairy away ; against the peace, &c.' § 589. Prom the Person.^ — The indictment must cover the special statutory terms ; but, assuming that it does, it may be the same as for simple larceny,' enlarged by the words, in any appro- priate connection, "from the person of the said X." Thus, — That A, &c. [as at ante, § 583, down to and including " property of X "], from the person of the said X,^ feloniously did steal, &c.° 1 Such words as "dwelling-house," "shop," and "store" are sufficiently spe- cific ; and, if one of them is in the statute, the pleader has only to transfer it to the in- dictment. Query, as to " building." Com- monwealth V. Smith, 111 Mass. 429; Rex V. Hickman, 1 Leach, 4th ed. 318; Crim. Proced. II. § 779. If " public place" were the statutory term, it would not suffice in the indictment, but the particular public place must be stated. Stat. Crimes, § 902- 906 ; ante, § 493. 2 Ante, § 582, 583. 3 Ante, § 582 and note. * Then being, &o. — This clause would seem, on first impression, not to be neces- sary, except to cover special statutory terms ; because the averment that the de- fendant stole the goods in the dwelling- house carries with it the idea that they were in it. And see ante, § 582 and note. On the other hand, as statutes of this sort are interpreted to extend only to goods under the protection of the place and oth- erwise within their spirit (Stat. Crimes, § 233, 234 ; Crim. Law, II. § 902), there would appear to be ground for requiring even more of allefration than is contained in this clause. The form, as given in the text, accords with the majority of the pre- cedents, which certainly do not demand more, and it might not be quite safe with less. 330 * See, for forms and precedents for larceny From Dwelling-house, — ante, § 587 ; 3 Chit. Crim. Law, 985-987 ; 6 Cox C. C. App. 16 ; Rex v. Pope, 1 Leach, 4th ed. 336 ; Rex v. Campbell, 2 Leach, 4th ed. 564 ; Campbell v. Reg. 1 Cox C. C. 269, 11 Q. B. 799. 800; Commonwealth w. Curtis, 11 Pick. 134; Commonwealth u. Williams, 9 Met. 273 ; Inman v. The State, 54 Ga. 219; Smith v. The State, 60 Ga. 430; Sallie . Commonwealth, 2 Va. Cas. 8 The single word "sheep," "ox," 4 ; ' Snow v. The State, 6 Texas Ap. 284 ; " cow," &c. means the live animal. Crim. 3 Chit. Crim. Law, 980. Proced. II. § 708. 5 Crim Proced and Stat. Crimes as " Beard n. The State, 54 Ind. 413; Boy- 331 593 SPECIFIC OFFENCES. [book III. Twenty pounds of wool [in a case where the defendant caught live sheep and pulled the wool from them] each pound thereof of the value of, &c. ; ^ one thousand gallons of water [taken from a water-supply company] each hundred gallons thereof of the value of, &c. ; ^ ten thousand cubic feet of illuminating gas [where the defendant surreptitiously attached a pipe to the supply pipe of a gas company], each cubic foot thereof of the value of, &c. ; ° six quarts of mills [as well where it is taken by milking another's cow as in other cases] , each quart thereof of the value of, &c.'' Twelve pounds of beef, each pound thereof of the value of, &c. ; fourteen pounds of lamb,' killed and dressed for food, each pound thereof of the value of, &c. ; one turkey, killed and dressed for food, of the value of, &c. ; ° three eggs of hens,' each egg of the value of, &c.' § 593. Other Forms — may readily be constructed by consid- eriug these and the expositions in " Criminal Procedure " and " Statutory Crimes." ^ kin V. The State, 34 Ark. 443 ; McDowell V. The State, 61 Ala. 172 ; Bonner v. The State, 55 Ala. 242 ; Hunt v. The State, 55 Ala. 138 ; The State v. Matthews, 20 Misso. 55. 1 Rex V. Martin, 1 Leach, 4th ed. 171. 2 In Ferens v. O'Biien, 15 Cox C. C. 332, the averment was "feloniously did Bteal, take, and carry away two buckets of water of the value of one penny," &c. The defendant had drawn the water, without permission, from the tap of a water-supply company. There was a conviction with- out objection to the form of the allegation. But, with us, a charge of stealing two " bottles " of a liquid is held not to be sus- tained by proof that the defendant filled his own bottles from the cask of the injured person. Crim. Proced. II. § 710. And plainly, in both these cases, the fluid was stolen before it became a "bucket" or " bottle " thereof. Yet as a, gallon is a measure independent of the particular ves- sel holding it, there was a certain number of gallons as well before the theft as after- ward. 8 Reg. V. White, Dears. 203, 6 Cox C C. 213 ; Commonwealth v. Shaw, 4 Allen, 308 ; Reg. u. Firth, Law Rep. 1 C. C. 1 72. * Of course, the allegation in other terms may be equally good. A precedent in 3 Chit. Crim. Law, 982, is, — That A, &c. on. &c. at, &o. "unlawfully did enter a certain stable there situate, be- longing to one X, and then and there unlaw- fully and injuriously did milk a certain cow, 332 of and belonging to the said X, being in the stable of him the said X ; and that he the said A by such milking did then and there draw and extract three quarts of milk, of the value of three pence, from and out of the said cow; and the said three quarts of milk, so drawn and extracted as aforesaid, of the goods and chattels of the said X, he the said A tlien and there unlawfully and feloniously did steal, take, and carry away," &c. ^ Perhaps " fourteen pounds of lamb " would be held to indicate the killed and dressed article, not the living creature. But the fuller form in the text is certainly safe. ^ Compare with Crim. Proced. II. § 706. ' " Of hens," necessary. lb. § "07, 8 " Meat." — AH these things, and many more, are " meat ; " therefore the word "meat " is too indefinite. Ciim. Pro- ced. n. § 700. ^ Coin. — How to describe coin, current and uncurrcnt, ante, § 403 and note, 404, 407, 423, note ; Crim. Proced. II. § 703- 705 ; 3 Chit. Crim. Law, 960, 987 ; 6 Cox C. C. App. 7, 137 ; Sallie ;;. The State, 39 Ala. 691 ; The State v. Bartlett, 55 Maine, 200 ; Daily v. The State, 10 Ind. 536 ; The State V. Evans, 7 Gill & J. 290 ; Lavarre V. The State, 1 Texas Ap. 685, 686. Books — Printed Sheets. — One hun- dred copies of the printed sheets of a cer- tain publication called, &c. is good, but not supported by prbof of the larceny of them after they are bound. Common- wealth V. Merrifield, 4 Met. 468. CHAP. XLIX.] LAECENY — SIMPLE AND COMPOUND, § 597 § 594. Statutory Larcenies. — Where a thing is newly made the subject of larceny by a statute, it should be described after the analogies from the rules for common-law larceny, following also the statutory terms, as in other indictments on statutes.^ Hence, — § 595. Practical Methods. — As the statutes of our States vary, and even those of the same State change from time to time, it is not safe simply to follow a printed form, whether found in a book of precedents or in an adjudged case. The pleader, before he draws the indictment, should lay before him the particular stat- ute on which he is to proceed, with the judicial interpretations of it which the courts have made, or he deems they will make.^ And he should bear in mind, that he must cover its interpreted terms, according to the ordinary rules for indictments on stat- utes,^ and at the same time satisfy the common-law rules for describing the things stolen. Thus, — § 596. Ore from Mine. — Under a statute making it larceny to " steal . . . the ore of any metal . . . from any mine," * the ore should be described according to the rules of the common law ; that is, if we follow the ordinary precedents, by saying so many pounds of pre. Then, looking into the statute, we find the added words " of any metal ; " and these must be covered. Probably the word " metal " alone would be deemed too general in allega- tion, consequently the species of it should be stated.^ And, lastly, we have the statutory expression " from any mine." This also must be taken into the averments ; and it will not be adequate simply to say, after the ordinary common-law precedents, " then and there being found." ^ The form may be, — That A, &c. on, &c. at, &c. did feloniously steal, take, and carry away, from the mine of copper of X, twenty pounds of copper ore, of the value of, &c. of the property of the said X ; against the peace, &c.' § 597. Lead fixed to Dwelling-house. — Under the statutory words "steal, rip, cut, or break with intent to steal, any lead, . Pray, 13 Pick. 359 ; Commonwealth u. Odlin, 23 Pick. 275 ; Commonwealth v. Tower, 8 Met. 527 ; Commonwealth v. Briggs, 11 Met. 573 ; Commonwealth ■/. Hart, 1 1 Cush. 130 ; Commonwealth i^. Wilson, 1 1 Cush. 412 ; Commonwealth v. Giles, 1 Gray, 466 ; Commonwealth v. Murphy, 2 Gray, 510 ; Commonwealth w. Edwards, 4 Gray, 1 ; Commonwealth o. Wood, 4 Gray, 11 ; Commonwealth v. Clapp, 5 Gray, 97 ; Commonwealth v. Jones, 7 Gray, 415 ; Commonwealth v. Woods, 9 Gray, 131 ; Commonwealth v. Colton, II Gray, 1 ; Commonwealth v. Hove, 1 1 Gray, 462 ; Commonwealth v. McKenney, 14 Gray, 1 ; Commonwealth v. Snow, 14 Gray, 20; Commonwealth v. Kingman, 14 Gray, 85 ; The State v. Cottle, 15 Maine, 473; The State v. Stinson, 17 Maine, 154; The State v. Churchill, 25 Maine, 306. 369 § 658 SPECIFIC OFFENCES. [BOOK III. § 656. Business of Selling — (Revenue Laws). — Similar, as to the form of the indietmeDt, is the carrying on of the business of selling, in violation of a revenue law. In Texas it was adjudged good to aver, substantially in the language of the statute, — That A, &c. on, &c, at, &c. did pursue the occupation of selling spiritu- ous liquors iu quantities less than one quart, without first obtaining a license therefor, and he has not since paid the tax on such occupation ; against the peace, &c.^ § 657. Traveller for Orders. — A statute provided, that " no person shall travel from town to town or from place to place in any city, town, or plantation in this State, on foot, or by any kind of land or water public or private conveyance whatever, carrying for sale or offering for sale, or offering to obtain or ob- taining orders for the sale or delivery of any spirituous, intoxi- cating, or fermented liquors, in any quantity, under a penalty of not less than twenty nor more than a hundred dollars for each offer to take an order, and for each order taken, and for each sale so made." And it was adjudged good to aver, — That A, &c. on, &c. at a plantation called M, &c. did travel from place to place in said M, and did then and there represent himself to one X to be the agent of Y [of 'N^'], for the purpose of procuring orders for the sale of intoxicating liquors, and did then and there obtain of the said X an order on said Y for the sale of a quantity of intoxicating liquors, to wit, four and three-fourths gallons of Medford rum, which said liquors were afterwards, to wit, on, &c. sent to said X [and by him received at M afore- said '] on said order so obtained ; against the peace, &c.^ § 658. Not Registering — (Bell-punch Law). — The terms of the particular statute must be adhered to ; in Texas, a conviction was sustained on the allegations, — That A, &c. on, &c. at, &c. being a duly and legally licensed dealer in spirituous, vinous, and malt liquors in quantities less than a quart, then and there had permanently attached to his counter the register provided by law, marked "Malt," which said register had been obtained by him from ' Carr w. The State, 5 Texas Ap. 153. ^ The matter in these brackets is not in For precedents under the Alabama statute, the form before me, nor does this or the isee Harris v. The State, 50 Ala. 127; otherpartof the averment that the rum was Lemons ». The State, 50 Ala. 130 ; Hafter sent to the purchaser seem essential. But is V. The State, 51 Ala. 37 ; Lawson o. The not this matter in brackets necessary if the State, 55 Ala. 118. rest is? I should reject all, especially as ^ I presume this allegation of the resi- thereby an embarrassing question of du- dence of the principal is needless. Ante, plicity would be avoided. .§ 78, 79. * The State v. Smith, 64 Maine, 423. 370 CHAP. LI.] LIQUOR KEEPING AND SELLING. § 660 the tax-collector of M county, and was then and there provided with a crank and bell as the law directs ; whereupon the said A did then and there sell a drink of beer, being a glass thereof, and being malt liquor, to X, and unlawfully and wilfully, on the sale of the same, did fail to turn the crank of said register marked " Malt," and then and there unlawfully and wil- fully did fail to register said drink of beer so sold as aforesaid to said X ; against the peace, &c.^ § 659. Screen. — Upon the words, "No licensed person shall place or maintain, or authorize or permit to be placed or main- tained, upon any premises used by him for the sale of spirituous or intoxicating liquors under the provisions of his license, any screen, blind, shutter, curtain, partition, or painted, ground, or stained glass window, or any other obstruction, which shall inter- fere with a view of the business conducted upon the premises," the averments may be, — That A, &c. on, &c. at, &c. being duly licensed to sell spirituous and in- toxicating liquors in a certain room in a certain building there, and using said room for said purpose under his said license, did then and there unlaw- fully place and maintain [and authorize to be placed and maintained ^], upon the said premises so used by him for said purpose under said license [say what, as], certain screens, blinds, shutters, partitions, and other ob- structions, which interfered with a view of the business conducted upon said premises ; against the peace, &c.' § 660. Practical Suggestions. — The legislation considered in this chapter is so rapidly changing that the pleader should be cautious about relying implicitly upon forms once good, whether found in reported cases or in books, of forms. Let him consider, carefully the present condition of the statutory law in his State, then lay before him the statutes and printed forms, and he will encounter no difficulties. For the defence, when the law is duly mastered, there will remain nothing which will not be obvious to the competent practitioner. 1 Albrecht v. The State, 8 Texas Ap. * Needless, unless perhaps under special 216. For like precedents under the Vir- facts. Ante, § 139 and note, ginia statute, see Helfrick o. Common- ^ For precedents, see Commonwealth v. wealth, 29 Grat, 844 ; Glass v. Common- Costello, 133 Mass. 192 ; Commonwealth wealth, 33 Grat. 827. v. Auberton, 133 Mass. 404. For LIQUOR NUISANCE, see Nuisancb. LIVING IN ADULTERY OR FORNICATION, see ADUMBiEY, &c. 371 § 662 SPECIFIC OFFENCES. [BOOK III. CHAPTER LII. lord's DAY.l § 661. How the Indictment. — Whatever be the common law of Sabbath-breaking, seldom will there be occasion to draw an indictment upon it ; for, in the ordinary case, the proceeding on the statute will be plainer and more effective. Still, — § 662. Common-law Nuisance. — There may be circumstances in which the indictment for the common-law nuisance of Sabbath- breaking should be chosen. The practical difficulty is that the law of this offence is not with exactness defined.^ But it is believed that the following will suffice in allegation : — That A, &c. on, &c. being the day of the week set apart by law and custom for the cessation of ordinary labor and merchandising, and for repose, and for religious worship, called Sunday, or the Sabbath, or the Lord's day, and thence continually on every Sunday down to and including the last Sunday before the finding of this indictment,^ at &c. was a com- mon Sabbath-breaker and profaner of the Sabbath, and did then and there, and on all of said days there [ante, § 84], to the disturbance of the public repose and public order, and in annoyance of all well disposed people, open and keep open, beside and within view from a certain highway there, whereon were people continually and lawfully passing, and within view from many dwelling-houses wherein people were abiding, a certain shop and store, and publicly carry on the business of merchandising and buying and selling goods and chattels in and around the same, and continually bring and convey away merchandise to and from the same ; to the common nuisance of all the people, and against the peace, &c.* • For the direct expositions of the of- ' I do not doubt that this offence may fence of Sabbath-breaking, or violating the be committed on a single Sunday, and so Lord's day, see Crim. Law, II. § 950-970 ; the continuando is not strictly necessary. Crim. Proced. II. § 812-818. Incidental, Ante, §81. Still, in various circumstances, Crim. Law, I. § 499; II. § 1280; Crim. the pleader will doubtless choose to employ Proced. I. § 207, 399, 636, 641, 1001 ; Stat. it. Crimes, § 143, 198, 213, 237, 245, 852, < The following precedent is from 2 Chit. 1070 a. Crim. Law, 20 ; — 2 Crim. Law, n. § 965, 967 ; Crim. That A, &c. on, &c. and continually after- Proced. II. § 812. wards until the day of the taking of this 372 CHAP. LII.] LORD 8 DAT. §663 § 663. Formula for Indictment on Statute. — The statutes are SO diverse that no formula for the indictment upon them can be more than a partial outline and be accurate. Therefore only the following will be attempted : — That A, &c. [ante, § 74-77] on, &c. being Sunday [or, the Lord's day, &c. employing the statutoi-y word, ajid, where the statute Umits the offence to a part of the day, add the allegation here, as see ante, § 85, 86, 653 ^], inquisition, at, &c. was and yet is a common Sabbath-brealter and profaner of tlie Lord's day, commonly called Sunday ; and that the said A, on the said, &c. being- the Lord's day, and on divers other days and times being the Lord's days during the time afore- said, at, &c. in a certain place thei'e called Claremarket, did keep a common public and open shop, and in the same shop did then and on the said other days and times being the Lord's days, there openly and publicly sell, and expose to sale, flesh meat, to divers per- sons to the jurors aforesaid as 3'et unknown; to the evil example of all others, to the com- mon nuisance of all the liege subjects of our said Lord the King, and against the peace, &c. Chitty explains : " See the precedent in Cro. C. C. 7th ed. 529, omitted in the 8th. As to the offence, according to Rex v. Brotherton, 1 Stra. 702, 2 Sess. Cas. 224 ; Drury v. Defontaine, 1 Taunt. 131, 134, it is not an offence at common law to sell goods on a Sunday, but publicly keeping an open shop seems to be indictable. See 4 Bl. Com. 63 ; 1 East P. C. 5. It is said in 1 Hawk. P. C. 7th ed. c. 6, § 6, that the selling meat on Sunday is no offence at the common law ; yet that, if the offender keep open shop, the nsual method is to indict at the sessions for the nuisance." This compiler, in another place (3 Chit. Grim. Law, 672), has the following, also upon the common law : — That A, &c. being a common Sabbath- breaker and profaner of the Lord's day, on, &c. and on divers other days respectively, being the Lord's day, and between that day and the taking of this inquisition, during the time of divine service on each of the said re- spective days, to wit, at the hour of twelve on each of those days, at, &c. aforesaid, in the dwelling-house of him the said A there situate, being a common tippling-house, did openly sell and utter, and caused to be sold and uttered, ale and beer, and other liquors, to divers idle and ill-disposed persons, whose names to the jurors aforesaid are as yet un- known ; and that the said A, on the said, &:e. and on divers other days during the time of divine service on each respective day, at, &c. in his said dwelling-house, did unlawfully and wilfully permit and suffer divers idle, &c. to remain and continue drinking and tippling; to the common nuisance of hisMajcstj^'s liege subjects [an allegation which, Chitty inti- mates, is not necessary] ; to the evil example, &c. in contempt, &c. and against the peace," &c. Returning to the form proposed in the text, perhaps some pleaders will choose to add an averment of sales to persons named or unknown. Still I can discover no prin- ciple requiring this. And see ante, § 65.5, 656, and particularly the places there re- ferred to ; showing that such minuteness, in this class of offences, is not necessary. It will be seen that I have taken more pains than did the draughtsmen of the pre- cedents from Chitty to set out the particu- lars which make the defendant's acts a public nuisance, not meaning to express any opinion upon the sufSciency of those precedents. Since a private sale on Sun- day is not a common-law offence, the in- dictment must allege more ; and the au- thorities are not distinct as to how much more. 1 A statute, after creating various of- fences against the Lord's day, concluded, in a separate section : " The Lord's day shall include the time from midnight to mid- night." Mass. Gen. Stats, c. 84, § 12. And a form of the allegation before me is, that on, &c. " that day being the Lord's day, and between the midnight preceding and the midnight succeeding the s.iid day." Commonwealth o. Wright, 12 Allen, 187. Pretty plainly, in principle, the simple aver- ment that the time was the Lord's dav, without the words " between the midnight," &c. would have sufficed. And, in Com- monwealth V. Lynch, 8 Gray, 384 ; Com- 373 §664 SPECIFIC OFFENCES. [book III. at, &c. did, &c. [say what] ; against the peace, &c. [ante, § 65- 69].i § 664. Keeping Open Shop. — Under a statute to punish one who, " on the Lord's day, keeps open his shop, warehouse, or workhouse, or does any manner of labor, business, or work, ex- cept works of necessity and charity," ^ the allegations for keeping open shop must extend beyond these mere statutory words, and state some unlawful purpose therein ; for such purpose the stat- ute, by interpretation, 3 requires as an element in the offence.* The averments may be, — That A, &c. on, &c. being the Lord's day,' at, &c. did keep open his shop there for the purpose of doing business therein [or exposing for sale monwealth v. Sampson, 97 Mass. 407, and various other cases wherein the proceeding was sustained, no more was alleged. An earlier statute in this State declared that the Lord's day should "extend from the midnight preceding to the sunsetting of that day." And it was held that these words need not be covered by averment. " The statute," said Parsons, C. J., " has defined the time which is intended to be considered as the Lord's day. It is, there- fore, regular to allege the fact on the Lord's day generally." Commonwealth v. Messenger, 4 Mass. 462, 465. For a doc- trine local to Georgia, see Werner v. The State, 51 Ga. 426 ; Grim. Proced. L § 399. 1 For precedents, see Reg. c. Cleworth, 4 B. & S. 926 ; Reg. v. Howarth, 33 U. C. Q. B. 537. Arkansas. — The State v. Anderson, 30 Ark. 131 ; The State v. Jeffrey, 33 Ark. 136; Bridges v. The State, 37 Ark. 224. California. — People v. Maguire, 26 Cal. 635, 639. Georgia. — Werner v. The State, 51 Ga. 426. Idaho. — People v. Griffin, 1 Idaho Ter. K. 8. 476. Indiana. — Poltz v. The State, 33 Ind. 215 ; Eitel v. The State, 33 Ind. 201 ; Mc- Carthy V. The State, 56 Ind. 203 ; Wilkin- son V. The State, 59 Ind. 416 ; Edgerton v. The State, 67 Ind. 588 ; Carver v. The State, 69 Ind. 61 ; Mueller v. The State, 76 Ind. 310 ; Yonoski v. The State, 79 Ind. 393. Massachusetts. — Commonwealth v. 374 Messenger, 4 Mass. 462 ; Commonwealth V. Knox, 6 Mass. 76 ; Commonwealth u. Maxwell, 2 Pick. 139 ; Commonwealth v. Collins, 2 Cush. 556 ; Commonwealth v. Lynch, 8 Gray, 384 ; Commonwealth v. Colton, 8 Gray, 488 ; Commonwealth v. Wright, 12 Allen, 187 ; Commonwealth v. Sampson, 97 Mass. 407 ; Commonwealth V. Crowther, 117 Mass. 116. Michigan. — Lynch u. People, 16 Mich. 472. Mississippi. — Kline v. The State, 44 Missis. 317, 319. Missouri. — The State i;. Crabtree, 27 Misso. 232 ; The State v. Carpenter, 62 Misso. 594. New York. — People v. Hoym, 20 How. Pr. 76. Nonh Carolina. — The State i;. WilliamSi 4 Ire. 400 ; The State v. Howard, 67 N. C. 24. Pennsylvania. — Johnston v. Common- wealth, 10 Harris, Pa. 102 ; Common- wealth V. Nesbit, 10 Casey, Pa. 398. South Carolina. — The State v. Meyer, 1 Speers, 305 ; The State «. Helgen, I Speers, 310. Virginia. — Thon «. Commonwealth, 31 Grat. 887. West Virginia. — The State v. Balti- more and Ohio Railroad, 15 W. Va. 362. 2 Mass. Pub. Stats, c. 98, § 2 ; Gen. Stats, c. 84, § 1. s Ante, § 32. * Commonwealth Plainly enough not necessary. And statute: "If any person or persons, from compare with "then and there being and after the firet day of June, in the year found," ante, § 582 and note, of our Lord one thousand seven hundred " Ante, § 699, note, and twenty-three," &c. But such matter '^ Not necessary. Ante, § 48. need never be alleged. Crim. Proced. I. i' 3 Chit. Crim. Law, 1086. § 622. M Ante, § 353 ; Stat. Crimes, § 446. 1 Unnecessary. Ante, § 43 ; Taylor v. i* I should retain this word " wilfully,'' The State, 6 Humph. 285. whether deeming it essential or not, for the reason stated ante, § 542, note. 398 CHAP. LVI.] MALICIOtrS MISCHIEF. § 713 kill a certain horse of one X [of the value of, &c.'] ; against the peace, § 711. Another. — Under the statutory words " wilfully or ma- liciously kill or destroy, or wound, the beast of another," the indictment for killing may allege, — That A, &c. on, &c. at, &c. did [wilfully '] and maliciously kill a cow, of the value of five dollars, the property of X ; against the peace, &c.* § 712. Killing under Special Circumstances. • — - Under a statute making it a misdemeanor for one to " kill any horse, mule, cat- tle, hog, sheep, or neat cattle, the property of another, in any enclosure not surrounded by a lawful fence," the averments may be, — That A, &c. on, &c. at, &c. unlawfully [and wilfully ^] did kill [injure, and destroy*], of the property of X, one cow and one heifer' then and there being in an enclosure not surrounded by a lawful and sufficient fence ; against the peace, &c.^ § 713. Killing by Poison, &c. — There may be ground for the opinion, on a question probably not adjudged, that the word " kill," in this sort of indictment, signifies the outright killing by ordinary means ; and tliat if, for example, the animal's life is taken by poison, the manner of killing should be stated. Thus, the word in the Black Act is " kill," ^ and it is silent as to 1 As to alleging the value, see ante, quite likely not strictly necessary. But as § 699, 702. the statute would be construed to refer only 2 The State v. Hambleton, 22 Misso. 452. to the unlawful killing, an indictment with And see the places cited to the next section, the word " unlawful " is, at least, more ^ The words of this statute being " wil- artistic than without it. Some would pre- fully or maliciously," there is nO such rea- fer " maliciously," — the technical term in son for retaining "wilfully" in averment malicious mischief. as in the last form. Since it adds nothing <> In the form before me. These words in meaning to "maliciously," the neater not being in the statute, there is no propri- way is to omit it, though the question is of ety in introducing them into the allega- little consequence. tion. " Injure," if in the statute, would * Taylor v. The State, 6 Humph. 285. require expansion in the indictment ; " de- For otlier forms, see Rex v. King, 6 Went, stroy " would not. Stat. Crimes, § 446, PI. 372 ; Collier v. The State, 4 Texas Ap. 447 ; post, § 715. 12 ; Commonwealth v. Walden, 3 Cush. ' Charging an injury to two animals 558; United States K. Gideon, 1 Minn. 292, does not make the indictment double. Stat. 295 ; Swartzbaugh v. People, 85 111. 457 ; Crimes, § 447 6. Commonwealth v. Sowle, 9 Gray, 304; 8 xhe State v. Painter, 70 N. C. 70. The State v. Harriman, 75 Maine, 562. For other like forms, see The State v. 5 This word " wilfully," not being in Simpson, 73 N. C. 269 ; The State v. Mc- the statute, is plainly not required in alle- Duffie, 34 N. H. 523 ; The State i'. Allen, gation. I should retain " unlawfully," 69 N. C. 23. though it also is not in the statute, and ' Ante, § 709. 399 § 715 SPECIFIC OFFENCES. [BOOK III. " poison ; " yet such precedents as we have upon it, in cases of poisoning, specify the poisoning. In the absence of adjudication, it will be the safer course with us to follow this method. Thus, where the offence is felony, as under the Black Act, — That A, &c. on, &c. at, &c. did feloniously, unlawfully, and maliciously kill, with and by means of poison, three pigs of the swine, cattle, and prop- erty of X, of the value of, &c. ; against the peace, &c.' § 714. Administering Poison. — Under a statute to punish one " who shall wilfully and maliciously kill, maim, or disfigure any horses, cattle, or other beasts of another person, or shall wil- fully and maliciously administer poison to any such beasts," the indictment for the poisoning may charge, — That A, &c. on, &c. at, &c. did wilfully and maliciously administer to a certain horse, of the value of, &c. of the property of one X [a large quan- tity, to wit'^], fifty grains of a certain poison called strychnine; against the peace, &c.^ § 715. Injuring. — The word " injure," in a statute, is, in rea- son, quite unlike the word " kill." Though there are different ways of killing, there is but one result, death. But there are all sorts of results called injuries, probably not every one of which is to be interpreted as within the statute ; the consequence of ^ Rex V. Chappie, Buss. & Ry. 77. I oning did afterward, on the same day, there have omitted the surplusage (ante, § 709, die ; against the peace, &c. 710), except the allegation of value, which 2 In the form hefore me. Such words may be surplusage or not. Chitty's prece- are often found in the precedents, particu- dent sets out the poisoning with greater larly the older ones ; introduced, one may minuteness. 3 Chit. Crim. Law, 1088. imagine, to avoid a supposed necessity of One of his counts, omitting its obvious sur- proving the exact quantity specitied. But, plnsage, is, — in a case like this, the quantity, in what- That A, &c. on, &c, at, &c. one mare, of ever form of words laid, is not of the es- the value of, &c. of th; go'ods and chattels of ^™=« f *^ allegation and it need not be one X, feloniously, unlawfully, wilfully, and P^^^^ t° '^^^« ''^«" *« ='""« "^ charged, maliciously did kill and destroy, by having Crim. Proced. I. § 488 6, 488 c. Where it before then, on, &c. there wilfullj', mail- is of the essence of the offence, and must be ciously, and unlawfully put and infused into, exactly proved, this consequence cannot be and mixed with, certain water in a trough averted by the "to wit." there, used for the purpose of watering horses, ^ Commonwealth v. Brooks, 9 Gray, at which trough the said mare was usually 299. " Personal Property." — Where watered, a certain quantity of deadly poison, ^Yii statute has the words " personal prop- to wit, white arsenic, of which said water erty," instead of such words as "horse," wherem the said poison had been so put, „ \.i, >, o .i ■ j- » » u . i .,„„„,, 1 „• J t J iu -J cattle, &c. the indictment may be m the infused, and mixed as aforesaid, the said . ' , , „ , /^ mare of the said X afterwards, to wit, on the ^™^ ^°™- "^"^ ^«« *^°'" "^ precedent Com- day and year first aforesaid, did there drink, monwealth v. Falvey, 108 Mass. 304. Al- and by reason and in consequence thereof did tempt to poison. — See, for a precedent, become at the said time and place of the Commonwealth v. McLaughlin, 105 Mass. drinking thereof poisoned, and of said pois- 460. 400 CHAP. LVI.] MALICIOUS MISCHIEF. § 717 which is, that the word "injure" alone is not adequate in alle- gation.^ Many of the statutes also make the extent of the pun- ishment depend on that of the injury, and some of the others render a certain standard of injury essential to the offence itself ; requiring, therefore, the same to be, in some proper form, alleged. If, by the statutory terms, it is a misdemeanor for one to " wil- fully and maliciously injure any [of certain enumerated] animal or animals, the property of another or others, to the amount of thirty-five dollars or upward," the allegations may be, — That A, &c. on, &c. at, &c. did wilfully and maliciously injure a certain horse [^or, mare, &c.J, the property of one X, to the amount in value of seventy-five dollars, by then and there cutting from the neck of said horse his entire mane, as close to the skin as the same could be cut and sheared, &c. [proceeding to state, in this way, all the various items of injury ; or, by then and there injecting into the sides of said mare, near the shoulders, by means of a certain syringe which he the said A then and there had and held, a large quantity of a poisonous substance the name whereof is to the jurors unknown] ; against the peace, &c.^ § 716. Another. — Under the provision that one " who shall maliciously or mischievously injure, or cause to be injured, any property of another, or any public property, shall be deemed guilty of a malicious trespass, and be fined not exceeding twofold the value of the damage done, to which may be added imprison- ment not exceeding twelve months," it is good to aver, — That A, &c. on, &c. at, &c. did maliciously and mischievously injure a certain dog, the property of one X, doing then and there and thereby dam- age to the said property to the value of twelve dollars, by then and there maliciously and mischievously shooting and discharging certain dangerous and deadly materials out of a gun which he the said A then and there had and held, at and against the said dog, and killing the said dog ; against the peace, &c.° § 717. Maiming — Wounding. — Neither " maim" nor "wound" is quite so precise a word as " kill," but each is reasonably exact 1 Stat. Crimes, § 447. The State v. Hill, 79 N. C. 656 ; The State 2 Brown i). The State, 26 Ohio State, v. Stanton, 66 N. C. 640 ; McGahagin v. 176 ; Oriatt v. The State, 19 Ohio State, The State, 17 Fla. 665 ; Caldwell v. The 573. And for other forms see post, § 716 State, 49 Ala. 34 ; Burgess v. The State, and places referred to in the note. 44 Ala. 190, 192 ; Bass v. The State, 63 8 Kinsman v. The State, 77 Ind. 132. Ala. 108 ; Ashworth v. The State, 63 Ala. For other forms and precedents, see Stat. 120. Some of these cases proceed on the Crimes, § 447 ; The State v. Merrill, 3 idea, that the word "injure" is sufficient Blackf. 346; The State w. Roberts, 81 N. C. alone in allegation, and the particulars of 605; The State v. Parker, 81 N. C. 548; the injury need not be stated. 26 401 § 720 SPECIFIC OFFENCES. [BOOK III. and single in meaning.^ Therefore the precedents almost uni- formly, and beyond doubt correctly, have only the single word " maim," or the word " wound," or the two connected by " and," without specification of particulars.^ Thus, — That A, &c. on, &c. at, &c. did [feloniously '] wilfully and maliciously [or, &c. following the statutory words] maim [or wound, or maim and wound] a certain horse [or ox, or cow, or ten certain pigs, or, &c.] of one X, of the value of, &c. [or, otherwise varying the allegations to cover the terms of the statute] ; against the peace, &c.* IV. To other Personal Property under Statutes. § 718. Injuring. — It is the same in malicious mischief to ordi- nary chattels as to animals ; " injure," in the statute, must be expanded to the particulars in the indictment.^ For example, — That A, &c. on, &c. at, &c. did wilfully and maliciously [following the statutory terms] injure a certain omnibus, the personal property of X [of the value of, &c.^], by then and there wilfully and maliciously driving the pole of a horse-railroad car at, against, and through a panel thereof, thereby breaking in pieces the said panel, and otherwise doing damage to the said omnibus; against the peace, &c.' § 719. "Damaging." — The verb "damage," used in some of the English statutes, is so nearly the same in meaning as " in- jure," as to render it plain that the indictment should be con- structed in the same way, simply substituting the one statutory word for the other.^ § 720. Destroying. — "Destroy," like "kill," indicates a single, definite result ; and the means of destruction, like those of taking ' For the signification of " maim," see 463 ; Ronntree v. The State, 10 Texas Ap. 6tat. Crimes, § 316, 448 ; of "wound," lb. 110. §314. 5 Ante, § 715. 2 And see ante, § 352. « Ante, § 699, 702, and the notes. * To be used only if the oflFence is ' Commonwealth r. Cox, 7 Allen, 577. I felony. And see the form in McKinney v. People, * 3 Chit. Crim. Law, 1087, 1087 a ; Rex 32 Mich. 284 ; post, § 720, note. K. Chalkley, Rass. & Ry. 258 ; Rex w. Shep- ^ For precedents see Rex v. Tracy, ■herd, 1 Leach, 4th ed. 539 ; Rex v. Whitney, Russ. & Ry. 452 (as to which, if the whole 1 Moody, 3 ; Lemon v. The State, 19 Ark 171 ; Swartzbaugh o. People, 85 111. 457 The State v. Beekman, 3 Dutcher, 124 The State v. Brocker, 32 Texas, 611 Turman v. The State, 4 Texas Ap. 586 Reid r. The State, 8 Texas Ap. 430 -Achterberg o. The State, 8 Texas Ap. 402 form appears in the report, query) ; Reg. V. Clegg, 3 Cox C. C. 295 ; Reg. v. Foster, 6 Cox C. C. 25. Damaging with Intent to Destroy, — 6 Cox C. C. App. 21, 22 ; Reg. V. Gray, Leigh & C. 365, 9 Cox C. C. 417. CHAP. LTI.] MALICIOUS MISCHIEF. § 722 the life, need not be set out. And it is the same though, in the statute and in the indictment, "injure" is connected with "de- stroy." ^ Thus, under a statute to punish one who shall " wilfully and maliciously destroy or injure the personal property of another person," &c. though the indictment may use the word " destroy " alone, it may equally well ^ allege, — That A, &c. on, &c. at, &c. did wilfully and maliciously destroy and in- jure ° two lobster cars, &c. [setting out all the articles], the property of one X ; against the peace, &c.* § 721. Destroying Vessel, &c. — The offences of destroying a vessel, conspiring to destroy it, and the like, under the legisla- tion of Congress, are considered in another connection.^ Only seldom is a lawyer called upon to prosecute or defend one fpr these offences, and then adequate time is given to look up the forms. So that no more is required here than references to places where precedents may be found.^ V. To the Realty under Statutes. § 722. How in this Sub-title. — The foregoing expositions of the allegations under such statutory words as " kill," " destroy," "injure," and "damage," will so far serve the pleader under this sub-title as to enable us to proceed in a different order. 1 Ante, § 708-715; Stat. Crimes, § 446. App. 21. Destroying threshing-machine, 2 Stat. Crimes, § 244. 6 Cox C. C. App. 22. A note given for 8 Still, plainly enough, the word "in- rent, 4 Went. PI. 79. Things for art mu- jure," standing thus without particulariza- seam, 6 Cox C. C. App. 70. Cutting cot- tion, is mere surplusage ; so that, if the ton warp on looms. The State v. Hamilton, proof shows an injury, but not a destroy- 1 Houst. Crim. 281. Burning stack of ing, there cannot be a conviction. On this hay, Black v. The State, 2 Md. 376, 378. idea we have, in McKinney v. People, 32 Forcibly entering dwelling-house with in- Mich. 284, the following, which is good tent to cut serge from looms, 3 Chit. Crim. both for the injuring and for the destroy- Law, 1132. ing ; ^ Crim. Law, I. § 570, note. That A, &c. on, &c. at, &c. a certain ° Destroying and casting away to de- harness of the value of, &c. of the personal fraud underwriters, &c. 3 Chit. Crim. Law, property of X [then and there being found, 1098; Rex v. Easterby, 2 Leach, 4th ed. needless, ante, § 582 and note], feloniously, 947, Russ. & Ry. 37 ; Rex t . Codling, 28 wilfully, and maliciously did injure and de- Howell St. Tr. 178; Reg. v. Wallace, 2 stroy, by then and there cutting the lines Moody, 200, Car. & M. 200. Conspiracy and martingales of said harness, and taking to Jq the same, Reg. v. Kohn, 4 Post. & F. the rings from said martingales ; against the gg wilfully burning and destroying a ship peace, &c. having merchandise on board, 3 Chit. Crim. * Commonwealth v. Soule, 2 Met. 21 ; Law, 1098. Plundering a wreck. Rex v. Commonwealth v. Dougherty, 6 Gray, 349. Harry, 4 Went. PI. 54 ; Eex v. Francis, For destroying a steam-engine, 6 Cox C. C. 6 Went. PI. 373. 403 § 725 SPECIFIC OFFENCES. [BOOK III. § 723. Fences. — For the protection of fences, statutes have made various sorts of mischief to them punishable. Under the words " break, pull down, or injure the fence or fences of an- other, without the consent of the owner, or person in possession thereof," it is not quite artistic but it is practically good to aver, — That A, &c. on, &c. at, &c. did unlawfully break, pull, cut down, and injure a certain fence, then and there the property of X, in possession of Y, without the consent of her the said X ; against the peace, &c.' § 724. Landmark — (Bounds). -:- Under a statute to punish one who " shall mischievously remove any monument erected for the purpose of designating the corner or any other point in the boundary of any tract of land, or," &c. the allegations may be, — That A, &c. on, &c. at, &c. did maliciously and mischievously remove away from its true and accustomed place a certain stone monument there, and theretofore erected on and for the purpose of designating the south- west corner of a certain tract of land, of the property of X, there lying and being [to wit, the south half of the southeast quarter of section twenty- nine, in township seventeen of range ten east, in Henry County, Indiana ^] ; against the peace, &c.' § 725. Timber and Trees — (Allegation of Place). — In a case before a single judge, an indictment alleging that, at a town in a county specified, A cut and carried away hoop-poles " standing and growing upon certain lands of X there situate," was quashed ^ Brewer v. The State, 5 Texaa Ap. Other cases containing similar prece- 248. If, in a case of this sort, the court dents are Campbell v. Commonwealth, 2 should, as not unreasonably it might, so Rob. Va. 791 ; Ratcliffe v. Commonwealth, interpret the statute as to render the con- 5 Grat. 657 ; The State u. McMinn, 81 sent of Y, equally with that of X, available N. C. 585 ; Brazleton o. The State, 66 Ala. in defence, this form would be ill for not 96. negativing Y's consent. On such an in- ^ xhis matter in brackets is copied in terpretation, the negation might be, " with- exact words from the form before me. The out the consent either of the said X or of analogies from forpible entry (ante, § 442 the said Y." And, in a State where the and note), larceny from the realty (ante, question has not been adjudged, this will be § 596-600), and various other offences, in- the safer method. For another form, see dicate that it is not necessary, unless there Jenkins v. The State, 7 Texaa Ap. 146, is to be a proceeding for the restoration of 149. A form held good in The State v. the landmark. And see post, § 725. Hoover, 31 Ark. 676, is,— » Stratton v. The State, 45 Ind. 468. That A, &c. on, &c. at, &c. did wilfully ^'"^ removing a comer-stone from the and unlawfully pull down the fence of certain boundary hne. The -State o. Burroughs, 2 enclosed grounds belonging to one X, without Halst. 426. Cutting down and removing the consent of the said X ; against the peace, a tree marked as a bound. The State v. &c. Malloy, 5 Vroom, 410. 404 CHAP. LVI.] MALICIOUS MISCHIEF. § 726 as not setting out the place with sufficient precision. The judge observed, that X may have owned " several pieces of land in the town," and the allegation should have been so definite as to enable him to know what piece was meant, and so "come to the trial prepared " to make any appropriate defence as to it.^ This decision, if it were followed, would overturn a great part of what is established, both in criminal and civil pleading. As in- dicated in a note to the last section, the indictment for a forcible entry need only describe the place as " a certain messuage and lands then and there [that is., in the county] in the peaceable and quiet possession of one X ; " ^ and, what is exactly to the point, an indictment for the larceny of things growing upon land is good if it simply states the place to be " land of one X there," namely, in the county of the indictment.^ So, in the civil suit for cutting trees on the plaintiff's land, it is an approved form to say, " then growing and being in and upon certain lands there [that is, at the place of the venue] situate." * And there is not, in all the law, a single analogy in harmony with the case now in contemplation. Therefore let us reject this case, and frame our allegations, in disregard of it, upon the established precedents and undoubted analogies. Thus, — § 726. Form of Allegation. — Under the statutory words, " Every person who shall cut, box, bore, or otherwise injure any tree or sapling, on the land of any other person or persons, or, &c. without a license so to do from the owner or owners thereof, or, &c. shall be fined in treble the value of such tree or sapling," it will be a good form to say, — That A, &c. on, &c. at, &c. did, ou and from the land of one X there, cut down and take away a certain tree of the value of, &c. without any license therefor from the said X ; against the peace, &c.° 1 People V. Carpenger, 5 Parker C. C. 6 Cox C. C. App. 20. For cutting timber 228. on public lands. United States v. Nelson, 5 2 Ante, § 442. Saw. 68. Setting fire to woods, Earhart 8 Ante, § 598, 599. c. Commonwealth, 9 Leigh, 671. Under * 2 Chit. PI. 868. the provision of the Black Act (Stat. 6 In drawing this form, I had before me Crimes, § 431 ) which makes it felony for the precedent in The State c. Blackwell, 3 one to " cut down or otherwise destroy any Ind. 529, but the departures from its Ian- trees planted in any avenue or growing in guage are considerable. For other forms, any garden, orchard, or plantation, for or- see People v. Carpenger, 5 Parker C. C. nament, shelter, or profit," Chitty, in 3 228 (the case criticised in the last section) ; Chit. Crim. Law, 1132, has the following White u. The State, 69 Ind. 273 ; Reg. v. precedent : — Whiteman, Dears. 353, 6 Cox C. C. 370; That A, &o. on, &c. at, &o. unlawfully, 405 § 729 SPECIFIC OFFENCES. [BOOK III. § 727. Injuring a BuUding. — A statute making it punishable to " maliciously injure, deface, or destroy any building, or fixture attached thereto," is adequately covered by, — That A, &c. on, &c. at, &c. did wilfully and maliciously injure and deface a certain church huilding commonly called a church, of the value of, &c. [the property of X, Y, and Z, as elders of the church of God ^], by break- ing in the windows of said church building, and splitting and breaking the doors of the same ; against the peace, &c.^ § 728. Saw-mill. — Where a statute makes punishable one who ".shall wilfully and maliciously break down, injure, or remove any dam, reservoir, gate, flume, or any of the wheels, mill gear, or machinery of any water-mill or steamboat," the indictment may aver, — That A, &c. on, &c. at, &c. did wilfully and maliciously remove and carry away one saw-mill saw, of the value of, &c. the property of one X, which saw was then and there a part of the machinery of a certain water saw-mill, the property of the said X, there situate ; against the peace, &c.= § 729. Destroying Aqueduct Pipe. — Under the words " cut, injure, or destroy any leaden or other pipe used as an aqueduct, for the conveyance of water," the indictment may charge, — That A, &c. on, &c. at, &c. wilfully and maliciously did cut, injure, and destroy a certain leaden pipe, used as an aqueduct for the conveyance of water, the property of one X [then and there being found *'] ; against the peace, &c.' maliciously, and feloniously did cut down and mischievously tearing off the roof of said and destroy two [elm, needless, and better house, to the damage of the said X in the omitted, ante, § 590, 692] trees in a certain sum of, &c. ; against the peace, &c. The avenue to the dwelling-house of one X, there State v. Sparks, 60 Ind. 298. planted and then growing for ornament there, -ri .t r .... , ., , he the said X then being the owner of the said . ^°'' ^"°'^^'" f°™ *^'" >"Ji"ng a build- trees [to the great damage, &c. needless, ante, "S. Commonwealth v. Williams, 110 Mass. § 48]; against the peace, &c. [omitting the *°^- Breaking glass and destroying win- force and arms allegation, needless, ante, dows, Commonwealth v. Bean, 11 Cush. §43.] 414; Kilpatrick w. People, 5 Denio, 277 ; ,„„,., ... . , 6 Cox C. C. App. 71. Defacing jail, The No allegation of ownership .s required gj^j, „. Bryan, 89 N. C. 531. Demolish- in a case of this sort. Ante § 183 and ; ^ouse, Reg. v. Phillips, 2 Moody, 252 ; 2 V^""^;^™'"^!,"- ! 'VJ- , .o ^'^^ "■ J^i-^hards. 1 Moody & R. 177 / Reg: ^ The State . Brant, 14 Iowa. 180. „. h„,,,„ 9 ^^r. & P. 437. Another form under a similar statute may , ^he State v. Avery, 44 Vt. 629. be, * In the form before me, but evi- That A, &c. on, &c. at, &c. did unlaw- dently not necessary. Ante, § 582 and fully, maliciously, and mischievously injure note. a certain house there, the property of one X, 6 The State v. Jones, 33 Vt. 443. by then and there unlawfully, maliciously, 406 CHAP. LVI.J MALICIOUS MISCHIEF. § 732 § 730. Other Ponu3 — may readily be drawn in analogy to the foregoing. It would afford the pleader little help to continue these illustrations ; but some references to places where other forms may be found will be convenient.^ VI. Practical Suggestions. § 731. Analogies. — The analogies of this offence to various others, for which the forms of the indictment are well established, will be suggestive to the pleader. In like manner, both parties may from such analogies derive help as to the evidence. They need not be here particularized, for they are obvious. § 732. The Statutes — are very numerous and somewhat di- verse in their terms. This fact should lead to caution in the use of precedents and in relying on points adjudged. The practi- tioner, on either side, ought carefully to examine the statutes of his own State ; and, unless he does, and construes them as the courts will, he will be likely to lose causes which he ought to win. 1 Injuring ToU-gate, — The State v. pond, — 3 Chit. Crim. Law, 1 132. Banks Walters, 64 Ind. 226 ; 6 Cox C. C. App. of Canal, — 6 Cox C. C. App. 22. Ditoh, 70. Destroying Bridge, — Owens w. The — Castleberry v. The State, 62 Ga. 442. State, 52 Ala. 400. Drowning or injur- Obstructing MiU-race, — The State o. ing Mine, — 6 Cox C. C. App. 20, 21. Tomlinson, 77 N. C. 528. Cutting and MUl-Pond, — 6 Cox C. C. App. 70. Pub- carrying off Ice, — The State o. Pott- lic Statue, — aCoxC. C. App. 71. Fish- meyer, 30 Ind. 287. For MALICIOUS CUTTING, STABBING, WOUNDING, see ante, § 696. MALICIOUS TRESPASS, see Tbespass to Lands. MALICIOUS SHOOTING, see ante, § 695. MALPRACTICE, see ante, § 213, 527-530 — Abortion — MALFEASANCE and Non-feasance in Office — Neglects. MANSLAUGHTER, see Homicidb. MARINER, see ante, § 580. 407 § 734 SPECIFIC OFFENCES. [BOOK III. CHAPTER LVII. MABRIAGE, OFFENCES AGAINST.^ § 733. Elsewhere. — Most of the offences against marriage are treated of under other titles ; as, " Abduction," " Conspiracy," " Incest," " Polygamy," " Seduction." A few remain for this place. Refusing to Solemnize. — Whether it is indictable for a cler- gyman or magistrate, authorized to marry people, to refuse a couple properly applying, is a question somewhat considered in another place.^ Should the reader have occasion to draw an in- dictment for such refusal, he may consult the English one in the case referred to in the note.^ It must state the facts out of which arose the duty, aver disobedience ; and, if on a statute, cover the statutory terms. So that only by accident would a form good in one State be so in another, and none need be at- tempted here. § 734. Solemnizing Marriage of Persons under Impediment. — A statute makes punishable one who " shall undertake to join oth- ers in marriage, knowing ... of any legal impediment to the proposed marriage." On this the averments may be, for ex- ample, — That A, &c. [ante, § 74-77] on, &c. at, &c. [ante, § 80] being a jus- tice of the peace of said township in and for said county, unlawfully did then and there undertake to join in marriage X [ante, § 79] and Y [ante, § 79], by then and there performing a ceremony as of a marriage between them,* she the said Y then and there being, and the said A then and there 1 For the direct expositions of such of 604 a, 666. And see Adultekt — CoN- these oflFences as are not treated of under spiracy — Incest — Polygamy — Se- separate titles, see Stat. Crimes, § 737-739 ; duction and Abduction. 1 Bishop Mar. & Div. § 341-347 a. Inci- ^ 1 Bishop Mar. & Div. § 347. dental, Crim. Law, I. § 373, 509, 555 ; II. ^ Reg. v. James, 2 Den. C. C. 1, 3 Car. § 218, 235, 422, 445 ; Crim. Proced. II. & K. 167, 14 Jur. 940. § 244; Stat. Crimes, § 149, 222, 237, 587, l This clause, "by then and there," &c. 408 GHAP. LVII.J MAEEIAGE, OFFENCES AGAINST. § 736 well knowing her to be, a female under the age of sixteen years, to wit, of the age of thirteen years and no more [and not capable in law of contract- ing marriage ^] ; against the peace, &c. [ante, § 65-69]." § 735. Solemnizing without Consent of Parents. — On a statute given in another work,^ and in terms which the reader will infer, the allegations for solemnizing the marriage of a minor without the consent of parents may be, — That A, &c. on, &c. at, &c. being a regularly ordained minister of the Christian denomination called, &c. and authorized by law then and there to solemnize marriage, did then and there unlawfully solemnize a marriage between one X and one Y, while the said Y was a female over the age of fourteen years and under the age of eighteen years [under the guardianship of one Z who was then living in this State ; or, having a father then living in this State, to wit, one U, and having no guardian, and her mother being dead ; or, &c. bringing the case within the statute by stating it according to any other form of the facts ; * or] having parents living in this State, without their consent in person or in writing [or, if the pleader adopts the matter in the other brackets, without the consent in person or in writing of the said Z, or the said U, or, &c. as the other allegations and the facts require] ; against the peace, &c.' § 736. Solemnizing -without Banns or License.^ — Under a pro- vision making punishable " any person " (the reader will distin- guish this expression from " any minister," &c. "any justice of the peace," &c.) who " shall solemnize matrimony without pub- is not in the form before me, which, with- ing of the parent or guardian of such male out any special consideration of it, was or female minor, if they have either parent treated as good. I should deem its intro- or guardian living in this State." Now, duetion prudent, not meaning to express the person injured by this wrong is, not an opinion on the sufficiency of the allega- the minor, but the parent or guardian ; and tions in its absence. the general rule for indictments is, that the 1 This matter in brackets is in the form name of the injured person must, if known, before me, and some pleaders will choose be alleged. Crim. Proced. I. § 571. So, to insert it, as giving a sort of finish to the likewise, every negative averment must be allegations. But, as it simply declares the carefully made broad enough to exclude law, it is not legally necessary. Ante, every possible exception. Ante, § 642, § 407 and note, 494, 496, 564 and note. note, and places there referred to. Within 2 Bonker v. People, 37 Mich. 4. which rule it would not suffice simply to 3 1 Bishop Mar. & Div. § 342. And negative the parent's consent ; that of the see lb. § 343, 344. » guardian, or the fact of there being no * The matter in these brackets is not in guardian, should be added, this extended way in the precedent before 5 xhe State v. Willis, 4 Eng. 196; me. But, though the form without it Sikes v. The State, 30 Ark. 496, 497 ; The might pass with a particular tribunal, there State v. Ross, 26 Misso. 260 ; The State v. is ground for the opinion that, by the strict Winright, 12 Misso. 410 ; United States v. rules of criminal pleading, it ought to be McCormick, 1 Cranch C. C. 106, 593. inserted. The statutory words here are, ^ I Bishop Mar. & Div. § 345. "without the consent in person or in writ- 409 § 739 SPECIFIC OFFENCES. [BOOK III. lication of banns, unless license of marriage be first bad and obtained from," &c.^ it is good to allege, — That A, c&c. ^add, under a statute differently worded, " being a regularly ordained minister," &c. as in the last section, or being a justice of the peace, &c. following the statutory terms ^], on, &c. at, &c. did unlawfully [and feloniously^] solemnize matrimony between X and Y [ante, § 78, 79] without publication of banns of marriage in that behalf made, and without any license of marriage in that behalf first had and obtained from any person or persons having authority to grant the same ; [in contempt, &c. to the evU example, &c.^ and] against the peace, &c.^ § 737 . Solemnizing, being Unauthorized Person. — Forms referred to in the note.^ § 738. Other Offences. — Forms referred to in the note.'^ § 739. Miscegenation.* — One form of the inhibition declares punishable " any white person " who " shall, within this State, knowingly marry a negro, or a person of mixed blood descended from negro ancestry to the third generation inclusive, though one ancestor of each generation may have been a white person ; or, having so married in or out of the State, shall continue with- in this State to cohabit with such negro or such descendant of a negro." And the averments may be, — That A, &c. on, &c. at, &c. being a white man, did then and there un- lawfully [and feloniously "] knowingly marry one X, who was then and there [and the said A then and there knowing her to be "] a negro woman 1 The English repealed statute of 26 person, Rex ^. T. T., Trem. P. C. 99. Geo. 2, c. 33, § 8. Procuring marriage with minor hy false- ^ United States v. McCormick, 1 Cranch hood, 3 Chit. Crim. Law, 713. C. C. 106, 593. 8 Stat. Crimes, § 738 ; 1 Bishop Mar. 3 To be employed where the offence is & Div. § 308-308 c. felony. 9 To be used in States where the offence * Though in the form before me, not is felony, necessary. Ante, §45, 48; Crim. Proced. '" Not in the form before me ; yet, under I. § 647. the strict rules of criminal pleading, it 5 3 Chit. Crim. Law,- 711 ; Rex v. Wil- would seem to be necessary. The reason kinson, 6 Went. PI. 374 ; The State v. Lof- is, that the indictment must cover, not tin, 2 Dev. & Bat. 31. merely the yerbal, but the interpreted, stat- ^ Rex V. Stonage, Jebb, 121; Rex v. ute. Ante, § 32. And, beyond doubt, any Sandys, Jebb, 166. And see post, § 848. court would interpret this statute to mean, ' Deceits to procure false entries in that the party proceeded against knew the register, 3 Chit. Crim. Law, 712 ; Reg. v. other to be a negro, not merely knew him- Brown, 1 Den. C. C. 291, 3 Cox C. C. 127, self to be going through the ceremony of 2 Car. & K. 504. False oath to procure marriage. But, with this matter in brack- marriage license, Reg. v. Fairlie, 9 Cox ets omitted from the allegations, it is, at C. C. 209. Conspiracy, by deceitful and least, questionable whether the indictment indirect practices, to procure the marriage can be understood to mean so much ; for of a wealthy minor to a disreputable poor the rules of interpretation are not quite the 410 CHAP. LTII.] MARRIAGE, OFFENCES AGAINST. §740 [or, did then and there, haviog theretofore, on, &c. at N, in the State of M, intermarried with one X, a negro woman, and having removed with said X to this State, knowingly, and knowing the said X to be a negro woman, continue to cohabit with her in this State] ; against the peace, &C.1 § 740. Following Statutes. — The classes of offences included within this chapter are of sorts varying a good deal in the several States ; therefore the pleader should consider carefully the stat- utes of his own State relating thereto, and their interpretation, and cover the several interpreted terms. same for the two things, nor are the words of the statute and the allegations thereon absolutely identical. The cautious pleader, therefore, will insert this matter. 1 Frasher v. The State, 3 Texas Ap. 263, 264 ; Moore v. The State, 7 Texas Ap. 608. A briefer form satisfies the stat- utory requirements in Alabama ; as, see Green v. The State, 58 Ala. 190. I have no form to guide me in an attempt to cover the clause of the statute as to marrying a "person of mixed blood," &c. except a dictum from the judge in one of the cases. Frasher i/. The State, 3 Texas Ap. 263, 279. It is believed that the words " though one ancestor of each generation may have been a white person " are of a sort not re- quiring to be noticed in the averments (ante, § 674 and note and places there re- ferred to), and so they may be, — Marry X, &c. [as above] a woman of mixed negro and white blood, descended from a negro within the third generation inclusive from the negro [adding, if the pleader doubts the sufficiency of this], it being to the jurqrs unknown in which or how many or all of the said three generations one of the ancestors of the said X was a white person. 411 § 742 SPECIFIC OFFENCES. [BOOK 111. CHAPTER LVIII. MAYHEM AND STATUTORY MAIMS.^ § 741. At Common Law. — For reasons stated in another con- nection,^ it would not be possible to present a form of the indict- ment for mayhem under the common law, as it stood in England before there were statutes of mayhem, of any practical benefit whatever. Nor upon any of the early English statutes will the pleader be likely ever to found an indictment,^ while yet the pre- cedents under the Coventry Act will be suggestive of the forms of allegation proper under enactments similarly expressed in his own State. § 742. FormTila for Indictment on Statute. — The pleader should cover, after the ordinary rules,* the terms of his statute, intro- ducing the word "feloniously" if the offence is felony, not if it is misdemeanor, in a statement of the particular facts. Thus, — That A, &c. [ante, § 74-77], on, &c. at, &c. [ante, § 80], did [feloni- ously and] of his malice aforethought [if such are the statutory words, but, whatever they are, they should be employed in the allegation] make an assault ^ upon one X [ante, § 78, 79], and then and there feloniously and of his malice aforethought [or, &c. as above] did, &c. [setting out his acts in 1 For the direct elucidations of these And practically this averment should, in offences, with the pleading, practice, and general, or always, be introduced ; because evidence, see Crim. Law, II. § 1001-1008 ; then, if the proofs of the heavier offence Crim.Proced.il. §850 a-859. Incidental, fail, there may be a conviction for the Crim. Law, I. § 257, 259, 513, 861, note, lighter, unless there is a technical rule 865, 867, 935 ; Crim. Proced. I. § 629, (Crim. Law, I. § 794-798, 804-815) to note; II. §90; Stat. Crimes, § 185, 316, prevent. Crim. Proced. II. § 859. It may 317. See the title Malicious Injuries be best to aver, in addition to the assault, TO THE Pebson. a battery ; as, in Haslip v. The State, 4 2 Crim. Proced. II. § 851. Hayw. 273. And see Crim. Proced. II. 8 Crim. Law, II. § 10U2, 1003. § 859. The ridit to do it rests on the * Crim. Proced. I. § 593-642. same reason. Of course, on the ordinary ^ The statutes are generally silent as to terms of these statutes, the pleader can, an assault ; but the averment of it, being if he chooses, omit the allegations both of descriptive of the manner of the maiming, the assault and of the battery. Commou- does not render the indictment double, wealth v. Woodson, 9 Leigh 669 412 CHAP. LVm.J MAYHEM AND STATUTOET MAIMS. § 743 the interpreted * terms of the remaining part of the statute] ; against the peace, &c. [ante, § 65-69].^ § 743. On Coventry Act — (Slitting Nose). — The Coventry Act has now given place, in England, to provisions differently expressed ; but there are, in some of our States, statutes in nearly the same words. It is recited in " Criminal Law." ^ A standard form for the indictment on it, mingling the needful and the need- less, is, — That A, &c. on, &c. [contriving and intending one X, then and yet being a subject of our Lord the King, to maim and disfigure *], at, &c. [with force and arms ^], in and upon the said X [in the peace of God and our said Lord the King then and there being ^], on purpose, and of his malice afore- thought, and by lying in wait, unlawfully and feloniously did make an as- sault;' and the said A, with a certain iron bill [of the value of one penny '] which he the said A in his right hand then and there had and held,' the nose of the said X, on purpose, and of his malice aforethought, and by lying in wait, then and there unlawfully and feloniously did slit, with intention the said X, in so doing in manner aforesaid, to maim and disfigure [the entire statute, as respects the slitting of the nose, is now covered. If there were abettors, at or before the fact, proceed as directed ante, § 113-117, 539. Or, regarding the terms in the latter part of this statute, proceed] : and that B, &c. at the time when the aforesaid felony by 1 Ante, § 32. Hayw. 273 ; Chick v. The State, 7 Humph. 2 For forms and precedents, see 3 Chit. 161; Worley o. The State, 11 Humph. Crim. Law, 787 ; Kex v. Kingrose, Trem. 172. P. C. 33 ; Rex v. Woodburne, 16 Howell Virginia. — Commonwealth v. Somer- St. Tr. 53 ; Rex v. Carroll, 1 Leach, 4th rille, 1 Va. Cas. 164 ; Commonwealth v. ed. 55; Rex v. Briggs, 1 Moody, 318, 1 Woodson, 9 Leigh, 669. Lewin, 61. W'est Virginia. — The State v. Stewart, Alabama. — The State v. Absence, 4 7 W. Va. 731 . Port. 397; The State v. Briley, 8 Port. Wisconsin. — Moore v. The State, 3 472. Pin. 373 ; The State v. Bloedow, 45 Wis. Massachusetts. — Commonwealth v. 279. McGrath, 115 Mass. 150; Commonwealth ^ Crim. Law, II. § 1003. V. Blaney, 133 Mass. 571. * There is no reason for supposing any Missouri. — The State v. Thompson, 30 part of this matter in brackets to be essen- Misso. 470. tial. The statute defines the intent, which New York. — Burke v. People, 4 Hun, alone is required, and it is averred further 481 ; Godfrey v. People, 5 Hun, -369, 63 on. N. T. 207 ; Tully v. People, 67 N. Y. 15. ^ Needless. Ante, § 43. North Carolina. — The State w. Ormond, ^ jjeedless. Ante, § 47. 1 Dev. & Bat. 119. '' As to the averment of assault, see Oregon. — The State v. Vowels, 4 Ore- ante, § 742, note, gon, 324. ' Not necessary. Crim. Proced. II. Pennsylvania. — Respublica u. Lang- § 505. cake, 1 Yeates, 415; Respublica v. Reiker, 9 Evidently the manner of holding the 3 Yeates, 282. weapon need not be averred. Ante, § 520, Tennessee. — Haslip v. The State, 4 note ; Crim. Proced. II. § 856. 413 § 745 SPECIFIC OFFENCES. [BOOK III. the said A in manner and form aforesaid was done and committed, to wit, on the said, &c. at, &c. [with force and arms '], on purpose, and of his malice aforethought, and by lying in wait, unlawfully and feloniously was present, knowing of and privy to the said felony, aiding and abetting the said A in the felony aforesaid, in manner and form aforesaid done and com- mitted. [And so the jurors, &c. do say, that the said A and B, on the said, &c. at, &c. aforesaid, with force and arras, on purpose, and of their malice aforethought, and by lying in wait, the felony aforesaid, in form aforesaid, unlawfully and feloniously did do and commit, and each of them did do and commit f] ; against the peace, &c.° § 744. On SimUar Statute. — By a statute in New York, one is liable to imprisonment " who, from premeditated design, evinced by lying in wait for the purpose, or in any other manner, or with intention to kill or commit any felony, shall, 1. Cut out or dis- able the tongue ; or, 2. Put out an eye ; or, 3. Slit the lip, or slit or destroy the nose ; or, 4. Cut off or disable any limb or member of another, on purpose." * This provision, though simi- lar to the Coventry Act, differs from it so far as to require a sep- arate consideration. The words " evinced by lying in wait for the purpose, or in any other manner," are of a sort not required to be covered by the allegations.^ It is good to say, — That A, &c. on, &c. at, &c. feloniously and from premeditated design and on purpose made an assault upon one X, and the thumb [or, the ear, or, &c.] of the said X did then and there feloniously and from premed- itated design, with the teeth of him the said A \or, with a certain knife which he the said A then and there had and held, or, &c. naming in like' manner any other instrument], on purpose, lacerate and disable \or, cut off, or, &c. specifying what, and adhering to the statutory terms] ; against the peace, &c.° § 745. Simpler — (Other Forms). — Some of the statutes are in terms somewhat simpler than these, admitting of allegations less complicated. On them the pleader will require no other help 1 Unnecessary. Ante, § 43. abling the eye, Eex v. Eingrose, Trem. 2 The matter in these brackets seems to P. C. 33. have been copied from the forms in mur- * 2 R. S. 664, marg. p. § 27, 2 Edm. der, without the same or any other reason Stat. 683. for it. There can be no doubt that it is ^ Ante, § 674 and note, and places there unnecessary. Crira. Proced. II. § 548-550, referred to. 856. 6 Tnlly v. People, 67 N. T. 15 ; Godfrey ' 3 Chit Crira. Law, 787. For a pre- u. People, 5 Hun, 369, 63 N. Y. 207. The cedent in similar terms, see Rex v. Carroll, precedents in these cases were before me 1 Leach, 4th ed. 55. Eye. — The like, while drawing this form. The explana- nnder the same statute, for cutting and dis- tions of various omissions appear in the 414 foregoing notes in this chapter. CHAP. LYIII.] MAYHEM AND STATUTOET MAIMS. § 748 than is furnished by the foregoing sections and the chapter in " Criminal Procedure."^ § 746. Attempts. — For attempts at mayhem the allegations may follow the directions given already.^ As, — § 747. Woundiiig with Intent. — Under a statute making pun- ishable one who " shall unlawfully and maliciously stab, cut, or wound any person, with intent ... to maim . . . such per- son," 8 there need be no averment in terms of assault and battery, though in prudence the pleader may choose to insert it,* nor need the means by which the wound was inflicted be set out ; ^ but it will be adequate to aver, — That A, &c. on, &c. at, &c. did [feloniously] unlawfully and maliciously stab, cut, and wound one X, upon the head of him the said X, with intent then and there to maim him ; against the peace, &c.° § 748. Assault with Intent. — The allegations may be, — That A, &c. on, &c. at, &c. did [feloniously] and maliciously [_or, &c. following the statute] make an assault on one X [add here with what weapon, if by the statute the weapon is an element in the ofiFence] and him, &c. [alleging a battery if required to cover the statute], with the intent then and there, by, &c. [say what],' to maim and disfigure him the said X ; against the peace, &c.* 1 For some particular forms, see — dis- * 9 Geo. 4, c. 31, § 12. abling the arm, The State v. Briley, 8 Port. * Ante, § 742 and note. 472. Biting off nose, Commonwealth v. ^ Rex v. Briggs, 1 Moody, 318, 1 Lewin, Blaney, 133 Mass. 571. Biting off ear, 61. The State v. Absence, 4 Port. 397 ; The ^ Eex v. Briggs, supra. State V. Ormond, 1 Dev. & Bat. 119. Put- ' Doubtless not required in all cases. ting out eye, Respublica a. Reiker, 3 Yeates, ^ Commonwealth v. McGrath, 115 282; Chick u. The State, 7 Humph. 161. Mass. 150; The State v. Stewart, 7 W. Castration, Worley v. The State, 11 Va. 731 ; Moore ii. The State, 3 Pin. 373 ; Humph. 172. Haslip v. The State, 4 Hayw. 273; The 2 Ante, § 100-112. And see Crim. State v. Thompson, 30 Misso. 470. Proced. II. § 90. For MEAT, UNWHOLESOME, see Noxious and Adulterated Food. MEDICAL MALPRACTICE, see Homicide — Neglects. MILK, see Noxious and Adulterated Food. MILLER, see Tolls. MISCEGENATION, see ante, § 739. MISCHIEF, see Malicious Mischief. MISCONDUCT IN OFFICE, see Malfeasance and Non-fbasancb. MISPRISION, see ante, § 128-130. MURDER, see Homicide. MUTINY, see ante, § 580. NAVIGABLE RIVERS, see Wat. 415 § 750 SPECIFIC OPPEKCES. [BOOK III. CHAPTER LIX. NEGLECTS. § 749. This Title. — The subject of neglect does not properly constitute a separate title in the criminal law. Nor does it, in any of the preceding volumes of this series, occupy, as here, a place by itself ; but it is treated of under the other heads, in its several appropriate places. All indictments for criminal neglect have a certain uniformity of construction ; for which reason, and for practical convenience both to the writer and reader, this sepa- rate title is here given. § 750. How the Indictment — Formula. — The indictment must be in terms to show, or render prima facie obvious, a legal duty of the defendant and his ability to perform it, the common method being either to aver such duty and ability in words, or to set out facts whence prima facie they appear ; ^ it must point out the particular neglect of such duty ; and, if the neglect is of a sort indictable only after having resulted in certain specific evil consequences, or is more heavily punishable then, it must allege the consequences ; and it must contain all identifying matter required by the ordinary rules for indictments. Thus, — That A, &c. [ante, § 74-77] on, &c. at, &c. [ante, § 80] was the father of one X [ante, § 78, 79], who was theo and there a helpless child of the tender age of one year and six months, unable to provide or care for him- self, and under the care, protection, and control of the said A his father, 1 For varions expositions of this sub- 1049 ; Stat. Crimes, § 242, ,'596 a, 664, 877, ject, see Crim. Law, I. § 216-221, 241, 256, 1022 ; ante, § 218, 626, 529-531, 684, 685. 257, 267, 269, 305, 307, 313-321, 324, 419- 2 Xn the case, for example, of a neglect 421, 433, 468 a, 513, 717-721, 819, 824, to discharge official duties, the allegation 883, 884, 888, 891 a ; II. § 16, 29, 33, 464, that the defendant held the office would be 579, 580, 620, 643, 656 6, 659-662 a, 664- a sufficient prima facie showing both of 669, 685, 686, 696, 840, 879, 978, 1045, the duty and the ability (Crim. Proced. XL 1065, 1100, 1104, 1270, 1281 ; Crim. Pro- § 822); but, in casesof a different sort, ced. I. § 53, 398, 542, 555, 591, 637, 648, more of allegation is required. And see 649 ; II. § 538, 538 a, 558, 822-832, 1043- ante, § 684, note. 416 CHAP. LIX.J NEGLECTS. §751 the said A having then and there all necessary means and ability therefor * [or, &c. setting out any other facts to show, or otherwise averring, a legal duty and the ability to perform it] ; whereupon the said A did then and there unlawfully [and feloniously, if the oflfence is felony ; or, feloniously and of his malice aforethought, if it is murder ; or, &c. according to the requirements of the particular case] neglect, &c. [or, abandon, &c. setting out the special facts in terms appropriate to the class to which they belong] ; against the peace, &c. [ante, § 65-69].^ § 751. Neglecting Dependeut Person, — One of the common neglects is that of a person who, being under the duty and hav- ing the means, omits to provide for a dependent person, thereby- inflicting on him an injury. A form for the allegations, where deatli has been the consequence, was given under the title " Homicide."^ But where the injury is less, the neglect is still an offence at common law, as well as under various statutes. Rejecting from the precedents obvious surplusage, and not copy- ing them quite literally, we have the following form, good at the common law and under any statute the terms whereof it duly covers : — That A, &c. on, &c. and thence continually until the day of the finding of this indictment [ante, § 83],^ at, «&c. having the means and ability to 1 Crim. Proced. II. § 538, 538 a, 558, 822 ; Reg. v. Chandler, Dears. 453, 6 Cox C C. 519 ; Reg. v. Ryland, Law Rep. 1 C. C. 99, 10 Cox C. C. 569. 2 For forms and precedents, see ante, § 218, 526, 529-531, 684, 685 ; Archb Crim. PI. & Ev., 19th ed., 734, 750; 3 Chit. Crim. Law, 830 ; 4 Went. PI. 363 ; 6 Cox C. C. App. 40 ; 7 lb. App. 30, 32 ; 10 lb. App. 45 ; Rex v. Fenton, Trem. P. C. 267 ; Rex V. Friend, Russ. & Ry. 20 ; Reg. v. Chandler, supra ; Reg. v. Porter, Leigh & C. 394, 9 Cox C. C. 449 ; Reg. v. Baker, Law Rep. 2 Q. B. 621 ; Reg. v. Ryland, Law Rep. 1 C. C. 99, 100, 10 Cox C. C. 569 ; Reg. o. White, Law Rep. ICC. 311, 12 Cox C. C. 83 ; Rex v. Ridley, 2 Camp. 650 ; Rex v. Smith, 2 Car. & P. 449 ; Reg. V. Dunnett, 1 Car. & K. 425; Reg. v. Smison, 1 Cox C. C. 188 ; Reg. v. S., 5 Cox C. C. 279 ; Reg. v. Pardenton, 6 Cox C. C. 247 ; Reg. v. Smith, 14 Cox C. C. 398 ; Reg. v. Nasmith, 42 U. C. Q. B. 242. Alabama. — Mohtt v. The State, 33 Ala. 408 ; Cheek v. The State, 38 Ala. 227. * 27 Massachusetts. — Commonwealth v. Dedham, 16 Mass. 141 ; Commonwealth V. East Boston Ferry, 13 Allen, 589 ; Com- monwealth V. Osborn Mills, 130 Mass 33. Michigan. — People v. Dunkel, 39 Mich. 255, 256, note. Missouri. — The State v. Smith, 66 Misso. 92. New Hampshire. — The State v. Gil- more, 4 Fost. N. H. 461 ; The State v. Fitts, 44 N. H. 621. New York. — Cowley v. People, 21 Hun, 415, 417, 83 N. y. 464. South Carolina. — The State v. Penny, 19 S. C. 218. » Ante, § 530. * Time. — The continuing form of the allegation or time is adapted to this class of cases and is common in them. Still, except under a peculiar doctrine prevailing in Massachusetts, the wrong may, in gen- eral, be laid with equal effect as committed on a single day, and the proofs may equally well go backward and forward to cover the time before and after. Crim. Proced. I. § 397, 402 ; Cowley v. People, 83 N. Y. 464. 417 § 762 SPECIFIC OFFENCES. [BOOK III. discharge all his hereinafter recited duties, had in his care and dwelling in his house as a servant and part of his household, one X, a girl of the ten- der age of ten years, and unable to take care of and provide for herself, to whom the said A during all the aforesaid time there stood in the place of father and for whom he was under the duty to provide as for a minor child ' [or, was the father of one X, a girl of the tender age of ten years, unable to take care of herself, or to furnish herself with the 'necessaries of life, and for whom he as such father was during all said time under the duty to provide ; or, had in his household one X, an adult male person deficient in understanding and unable to take care of himself, whom the said A had for a good and valuable consideration undertaken to take care of and supply all his wants], and thereupon did there during all said time [ante, § 84] withhold from and neglect and refuse to give and administer to the said X sufficient and wholesome meat, drink, food, and clothing for the due sustenance of the said X and the protection of the said X from the cold [or, &c. setting out the neglect according to the special facts], where- by the said X became greatly enfeebled and debilitated in body and im- paired in health, and -on the day of the finding of this indictment, and for a long time before, was and is, by reason thereof, in a sick and feeble con- dition of body, and permanently injured in health and physical constitution [or, &c. stating the special facts of the case] ; against the peace, &c.^ § 752. Same under Statute. — Where a statute makes punish- able one who, " having the care or custody of any child, shall wilfullj'^ cause or permit the life of such child to be endangered, or the health of such child to be injured, or who shall wilfully cause or permit such child to be placed in such a situation that its life may be endangered, or its health shall be likely to be in- jured," the indictment may charge, for example, — That A, &c. on, &c. [adding the continuando, as in the last section, or not, at the election of the pleader], at, &c. having the care and custody of one X, who was then and there a child of the tender age of five years," 1 In this pase and various others, there that the husband delegated the duty to her, would perhaps be no need of specially al- and supplied the means, and she undertook leging ability, the undertaking implying it, to perform it, or otherwise as the incul- and if the party becomes disabled he should pating fact was. For forms and prece- relinquish his trust. Cowley v. People, dents, see 3 Chit. Crim. Law, 830 ; 6 Cox supra ; where, among other things, Folger, C. C. App. 40 ; 7 lb. App. 30, 32 ; Rex v. C. J. observed : " There is a difference Ridley, 2 Camp. 650 ; Rex v. Smith, 2 ;between a natural duty, or a duty imposed Car. & P. 449 ; Reg. v. Chandler, Dears, by operation of law, and a duty assumed 453, 6 Cox C. C. 519; Rex v. Friend, voluntarily and that may be put off volun- Russ. & Ry. 20 ; Reg. v. Ryland, Law tarily." p. 473. Rep. 1 C. C. 99, 100, 10 Cox C. C. 569; 2 If the neglect was by a wife, who is Reg. v. S., 5 Cox C. C. 279 ; Reg. o. made the defendant, while the legal duty Nasmith, 42 U. C. Q. B. 242 ; Cowley v. was on the husband, the allegations should People, 21 Hun, 415, 417, 83 N. Y. 464. ibe shaped to cover the special case; as, ^ xhe terms of this statute are fully 418 CHAP. LIX.] NEGLECTS. § 755 did then and there wilfully permit the health of the said child to be in- jured and its life endangered ; by then and there, wilfully, and well knowing the needs of said child, neglecting to provide for and give and administer to said child, proper, wholesome, and sufficient food, meat, drink, warmth, clothing, bed covering and means of cleanliness [or, proper and needed medical attendance, medicines, and nursing, the said child then and there being, and the said A then and there well knowing it to be, diseased, sick, and ailing in body and greatly in need of the same] ; against the peace, &c.^ § 753. Abandoning Child — (On Statute). — Under a statute making it a misdemeanor for any one to " unlawfully abandon or expose any child, being under the age of two years, whereby the life of such child shall be endangered," the averments may be, — That A, &c. on, &c. at, &c. did unlawfully and wilfully abandon and expose one X, a male child under the age of two years, whereby the life of the said child was endangered [by then and there laying and leaving the said child, on a cold night, insufficiently clothed, in a certain highway there] ; against the peace, &c.^ § 754. Neglecting Lunatic — (On Statute). — Under a statute making punishable any one who shall, " having the care or charge, or concerned or taking part in the custody, care, or treat- ment of any lunatic, &c. in any way abuse, ill-treat, or wilfully neglect such lunatic," it seems to be accepted as adequate, though it is hardly specific enough on the general principles of criminal pleading,^ to aver, — That A, &c. on, &c. at, &c. having the care and charge and being con- cerned in the custody and treatment of one X, who was then and there a lunatic, did then and there unlawfully and wilfully neglect, abuse, and ill-treat the said lunatic X ; against the peace, &c.* § 755. Against Town for not maintaining Grammar School. — A statute made it the duty of every town of two hundred families cOTered without the common-law averment the name of the child, or contain the mat- of the inability of the child to take care of ter which I have here inserted in brackets, itself. So that such averment, which does The safer course for the pleader is to retain not appear in the precedent before me, all this matter, though doubtless not all seems not to be necessary. And see The courts will hold it to be necessary. See State V. Davis, 70 Misso. 467. Crim. Proced. I. § 624, 625. 1 Cowley V. People, 21 Hun, 415, 417, s Ante, § 753, note. . 83 N. Y. 464. * Reg. v. Porter, Leigh & C. 394, 9 Cox 2 Reg. V. White, Law Rep. 1 C. C. 311, C. C. 449; Reg. v. Smith, 14 Cox C. C. 12 Cox C. C. 83. If the indictment in this 398. And see Reg. v. Bundle, Dears. 482, case is fully given in the reports, as it 6 Cox C. C. 549 ; The State v. Davis, 70 would seem to be in Cox, though there are Misso. 467. no marks of quotation, it does not allege 419 § 758 SPECIFIC OFFENCES. [BOOK lU. or householders to be provided with a grammar schoolmaster, of good morals, well instructed in the Latin, Greek, and English languages. And another section directed that no one should be employed as such schoolmaster unless he was educated at some college, and had certain credentials, &c., — a sort of provision which the rules of pleading upon statutes do not require to be covered by allegations.^ Thereupon it was adjudged good to aver, — That the town of A, &c. on, &c. and thence continually until, &c. [ante, § 83], at, &c. did and still does contain two hundred families and upwards ; and, during all of said time [ante, § 84] did and still does there neglect to procure and support a grammar schoolmaster, of good morals, well in- structed in the Latin, Greek, and English languages, to instruct the chil- dren and youth in said languages [which is in subversion of that difFusion of knowledge, and in hindrance of that promotion of education, which the principles of a free government require and which the constitution of the Commonwealth enjoins *] ; against the peace, &c.° § 756. Neglects resulting in Death. — The forms for these are sufficiently explained under the title " Homicide." * § 757. other Neglects. — The forms for other neglects are easily drawn in analogy to the foregoing.^ § 758. Other Titles. — The practitioner should not overlook the other titles wherein forms for various neglects under them appear. 1 Crim. Proced. I. § 632, 639. family, The State v. Fitts, 44 N. H. 621. 2 There is no reason to suppose that the Against firemen and engineers of engines matter in these brackets, though in the for neglects, 10 Cox C. C. App. 45; Reg. form before me, is essential. It is not in r. Pardenton, 6 Cox C. C. 247. Endan- the old books of precedents, and it is with- gering lives of railroad employees. People in what is explained ante, § 44-49. . v. Dunkel, 39 Mich. 25.5, 256, note. Cross- ' Commonwealth o. Dedham, 16 Mass. ing bar without pilot, The State v. Penny, 141. 19 S. C. 218. Master of vessel leaving sea- * Ante, § 529-531. For loss of life men behind in foreign land, Reg. v. Smison, through neglect of corporations, common 1 Cox C. C. 188; Reg. u. Dunnett, 1 Car. carriers, proprietors of steamboats, rail- & K. 425. Signs at road crossings, not roads, &c. Commonwealth ». East Boston erecting, The State c. Manchester, 3 Bax- Ferry, 13 Allen, 589; The State v. Gil- ter, 416; The State w. Loudon, 3 Head, more, 4 Fost. N. H. 461. 264 ; Louisville, &c. Turnpike v. The State, 5 Non-repair of sea beach, Reg. w. Baker, 3 Heisk. 129. Not putting up notice of Law Rep. 2 Q. B. 621. Not repairing jail, hours in a day's work, Commonwealth v. 4 Went. PI. 363. Not coming to church, Osborn Mill, 130 Mass. 33. Negligently Rex V. Fen ton, Trem. P. C. 267. Against compounding medicine, The State v. Smith, selectmen of a town for neglecting to raise 66 Misso. 92. and apply money for the relief of soldier's 420 CHAP. LX.J NEUTRALITY LAWS, § 760 CHAPTER LX. NEUTRALITY LAWS, OFFENCES AGAINST.^ § 759. In General. — Acts of Parliament and of Congress have created, in England and the United States, various offences against the neutrality of the enacting power, chiefly applicable in times of war between friendly nations. Our own occupy a chapter in the Revised Statutes of the United States,^ and there are provisions of later dates. § 7^0. As to Precedents. — The English and American stat- utes are similar. And the books contain some precedents of the indictment on them. Such forms are seldom called for, and, when they are needed, it is a simple matter to examine them in their original sources. Therefore the author deems that he shall best serve the reader by merely referring to the places where they may be found, and devoting the space thus saved to what will be oftener required in practice.^ 1 Crim. Law, L § 482. And see lb. &F. 25; Reg. v. Rumble, 4 Fost. & F. § 481-485. 175 ; Reg. v. Corbett, 4 Fost. & F. 555. II- 2 K. S. of U. S. § 5281-5291. legal privateering, Henfield's Case,Whart. ' Attempting to make, unlicensed, en- St. Tr. 49, 65. Issuing commission, &c. listments for the service of a foreign power. United States v. Reyburn, 6 Pet. 352. 9 Cox C. C. App. 58. Equipping vessel Fitting out vessel for foreign service. United to be employed by one foreign state against States v. Qnincy, 6 Pet. 445. Setting on another, 4 lb. App. 27. Enlisting men to foot, and preparing means for, an expedi- serve as sailors in war vessels against for- tion against a friendly power. United States eigu friendly powers, Reg. u. Jones, 4 Fost. o. Lumsden, 1 Bond, 5. For NIGHT-WALKERS, see Vagrancy, &c. NOISES, see Ndisance. NON-FEASANCE, see Malfeasaiice, &c. 421 763 SPECIFIC OFFENCES. [BOOK III. CHAPTER LXI. NOXIOUS AND ADULTERATED FOOD ^ AND THE LtKB. § 761. Elsewhere — Here. — The public nuisance of rendering food and drink noxious, the same as of making the air impure or offensive, belongs to the next chapter. Still something of what may be deemed quasi nuisance falls appropriately within the present title. § 762. Nature of Offence and Indictment. — This wrong, like various others, instead of being punishable by reason of distinct principles of its own, derives its criminal quality from the differing principles which govern other and less mixed crimes, operatiDg in the several classes of these cases in differing degrees. Thus, it is a species of cheat, or attempt to cheat ; and some sorts of it are almost purely such, while other sorts have but little of this ingredient. Again, it is a species of assault and battery, the battery being inflicted by the deleterious food taken into the stomach, or it is an attempt to commit such battery ; and some sorts of it are almost purely such, while others have less of this quality. Once more, it is a species of common nuisance ; and some sorts of it are almost purely such, while others have little of this kind of offending. And the result is, that the indictments, if skilfully and properly drawn, will vary with the cases ; in some, it will be much like the non-technical indictment for assault and battery ; ^ in others, be similar to that for the common-law cheat ; ^ and, in others, resemble the forms for nuisance, to be considered in the next chapter. Hence, — § 763. Formula. — There can be no helpful formula for the indictment, adapted to all cases, except in outline. The allega- 1 For expositions of offences connected 1127. And consult Cheats at Common with, see Ciim. Law, I. § 484, 491, 5.'>8 ; Law — Conspikacy — Nuisance. Crim. Proced. I. § 524, note; II. § 868, ^ Ante, § 207-209, 214, 218, 225. 878; Stat. Crimes, § 988 6, note, 1124- » Ante, § 272-275. 422 CHAP. LXI.J NOXIOUS AND ADCTLTERATED POOD. § 764 tions should vary with the sort of case, as well as with the special facts ; and, if the proceeding is on a statute, with the statutory words. They may be, for example, — That A, &c. [ante, § 74-77], on, &c. at, &c. [ante, § 80], did unlaw- fully and maliciously mix and mingle together flour, water, and sundry deleterious and poisonous substances to the jurors unkuown,'^ and bake the compound into loaves intended to resemble and resembling good and wholesome bread, and did then and there unlawfully and maliciously ex- pose the same for sale and sell the same as and for good and wholesome bread fit and good for human food, and in particular did then and there un- lawfully and maliciously sell one loaf thereof to one X as and for such bread ; whereas, in truth and in fact, the said loaves then and there were not good and wholesome bread, and were not fit to be eaten by man, but were a poisonous and deleterious compound [or, setting out any other wrong within the title of this chapter according to its particular nature and special facts] ; all of which the said A then and there well knew ; against the peace, &c. [ante, § 65-69].'^ §'764. Selling Noxious Bread — (Common Form). — A form adjudged in an English case good at the common law, and by Chitty transferred into his book of precedents, is, with slight omissions of what no one would deem material, — That A, &c. on, &c. and thence continually during the period of six months next following [ante, § 81-84], at, &c. was employed and intrusted to make and deliver, for the use of the X Asylum there, at which asylum 1 Compare with post § 764 and note. Iowa. — The State v. Close, 35 Iowa, 2 This formula, if accepted as a guide, 570. will not cast upon the pleader any heavy Massachusetts. — Commonwealth v. burden of allegation. Still the reader will Boynton, 12 Cush. 499 ; Commonwealth see, as we proceed, that in some respects it u. Flannelly, 15 Gray, 195 ; Common- is a little more minute than the course of wealth v. O'Donnell, 1 Allen, 593 ; Corn- decision would seem to require. But it is monwealth v. McCarron, 2 Allen, 157; hardly desirable in these cases, and perhaps Commonwealth v. Farren, 9 Allen, 489 ; not safe, to omit everything permitted by Commonwealth v. Nichols, 10 Allen, 199; any court. For forms and precedents, see Commonwealth v. Raymond, 97 Mass. 2 Chit. Crim. Law, 556-560 ; 4 Cox C. C. 567 ; Commonwealth o. Smith, 103 Mass. App. 14; Uex o. Dixon, 3 M. & S. 11 ; 444; Commonwealth v. Chase, 125 Mass. Refj.w. Stevenson, 3 Fost. &F. 106 ; Webb 202; Commonwealth v. Luscomb, 130 V. Knight, 2 Q. B. D. 530 ; Francis v. Mass. 42 ; Commonwealth u. Evans, 132 Maas, 3 Q. B. D. 341 ; Sandys v. Small, 3 Mass. 11. Q. B. D. 449. New Hampshire. — The State v. Buck- Connecticut. — The State v. Stanton; 37 man, 8 N. H. 203. Conn. 421. New York. — Goodrich v. People, 3 Georgia. —Downing v.' The State, 66 Parker C. C. 622, 19 N. Y. 574. Ga. 1 60. North Carolina. — The State v. Smith, Indiana. — Schmidt v. The State, 78 3 Hawks, 378. Ind. 41, 42. Tennessee. — Levi v. The State, 4 Bax- ter, 289. , 423 § 765 SPECIFIC OFFENCES. [BOOK m. were children provisioned and fed to the number of one thousand and more, certain loaves of good household bread, for the use and supply of the said children, at and for a certain price to be to him the said A paid for the same ; and that he the said A, being so employed and intrusted [but being an evil-disposed person and not regarding the laws, &c. with force and arms, &c.'2, did, at the times and place aforesaid, unlawfully, falsely, fraudulently, and deceitfully [and for his own lucre ^], in the course of the said employ, and in breach of his trust and duty,^ deliver [and cause to be delivered *] unto Y and Z, being respectively officers and servants belonging to the said asylum, divers, to wit, two hundred and niuety-seven loaves of bread, as and for loaves of good household bread, for the use and supply of the said asylum and the children belonging to ihe same ; where- as in truth and in fact the said loaves of bread were not good household bread, but on the contrary contained divers noxious and unwholesome ma- terials not fit or proper for the food of man,^ and the said A ° well knew that the said loaves of bread were not good household bread, but that the same did contain such noxious materials ; against the peace, &C.'' § 765. Flesh Meat for Food. — Comparing the precedents, we may accept the following as a good form for the common-law offence of exposing for sale or selling unfit flesh of animals for food : — That A, &c. on, &c. at, &c. at a public market there for the buying and selling of flesh meat for human food, did unlawfully and deceitfully expose publicly for sale a quantity of flesh ' meat as and for sound and wholesome flesh meat fit for human food ; whereas in truth and in fact it was not so, and this the said A then and there well knew " \_or, on, &c. at, &c. did 1 Unnecessary. Ante, § 4.3, 45, 46. the knowledge of the other party.'' Rex «. 2 There is no reason to suppose that Dixon, infra, at p. 14. To the like effect the matter in these brackets is essential, is Goodrich v. People, 19 N. Y. 574. Ante, § 631 and note. In like manner, the '' Perhaps, for the reason suggested in a allegation that the defendant was to be paid previous note, some will choose to repeat for the bread is probably immaterial ; but the time and place here. it seems appropriate enough, as introducing '' Rex v. Dixon, 3 M. & S. 11, 2 Chit, the element of cheat. Ante, § 762. Crim. Law, 559. And see the forms in the 3 Some would deem it prudent to repeat next three preceding pages of Chitty. here the allegations of time and place, and ' As to the reason for using this adjec- 80 avoid a question, whatever they might tive, see ante, § 592, note, " meat." think the strict law to be. ^ Reg. v. Stevenson, 3 Post. & P. 106. * The principle stated Crim. Proeed. I. There being here no allegation of a sale, § 332, shows this clause to be immaterial., the charge maybe deemed within the prin- And see ante, § 621 and places there cited. ciple of attempt. And, in attempt, the de- ^ It was objected that the noxious ma- fendant must contemplate the particular terials ought to have been specified. But evil result. Crim. Law, I. § 729. Hence the court thought otherwise ; and Bayley, he must be aware of the deleterious qual- J said, " that it was peculiarly within the ity, — an clement which the cases seem defendant's knowledge what materials he generally to require even in the substan- used, and it was a rule in pleading that a tive form of this offence. See, for ex- party may allege generally what is within ample, Commonwealth v. Boynton, 12 424 CHAP, LXI,] NOXIOUS AND ADUI/TEBATED POOD. § Y67 knowingly, deceitfully, and maliciously expose to sale and sell to divers persons to the jurors unknown {or to one X) divers quantities, to wit, five hundred pounds of beef, to be used and eaten as food for man, as and for good and wholesome beef and fit for the food of man ; whereas in truth and in fact the said beef was not good and wholesome beef and was not fit for the food of man, but was unwholesome and diseased, and unfit to be eaten by man, and this the said A then and there well knew ^] ; against the peace, &c.^ § 766. Poisoning "Well. — It is good at common law to al- lege, — That A, &c. on, &c. at, &c. did maliciously put into the well there of one X, near to the dwelling-house of the said X, from which well, as the said A then and there knew, the said X and his wife and family were in the daily and constant habit of drawing water and drinking and using the same, sundry carcasses of dead rats [with the intent thereby to poison and render unwholesome the water of the said well, and 4,0 injure the said X and his said wife and family'] ; by reason whereof the waters of the said well became [the said A then and there, and while putting the said carcasses into the said well, knowing they would become ^] greatly corrupted, un- wholesome, and poisonous, and the said X and his said wife and family were greatly injured by the drinking and using thereof; against the peace, &c.^ § 767. Various Forms under Statutes : — Unwholesome Provisions. — Under the words " knowingly sell any kind of diseased, corrupted, or unwholesome provisions, whether for meat or drink, without making the same fully known to the buyer," ® the allegations may be, — Cush. 499. Compare with Seibright w. The Diseased Cow. — For a form for .sell- State, 2 W. Va. 591 ; Burnby v. Bollett, ing a diseased cow in a public market, see 16 M. & W. 644. 4 Cox C. C. App. 14. 1 Goodrich V, People, 3 Parker C. C. ^ The matter in these brackets is not in 622, 19 N. Y. 574. the form before me. It is inserted here for 2 Probably the courts would not quite the convenience of any pleader who may agree as to how much this indictment could deem it essential. And see the next be cut down and leave it good. In The note. State V. Smith, 3 Hawks, 378, the allega- * Not in the form before me ; which, tions, containing little but surplusage, were without the matter in either of these brack- held good at the common law, — ' ets, was adjudged good. Plainly these al- That A, &c. on, &c. at, &c. did unlaw- legations strengthen the indictment, but fully, falsely, maliciously, mischievously, probably most will deem it sufficient with- and deceitfully sell and dispose of, to one X out them. Yet, for caution, if nothing and others, certain unwholesome and poison- more, their insertion may in some circum- ous beef, and did then and there receive pay stances be wise. for the same ; to the great injury of the said 5 The State v. Buckman, 8 N. H. X and his family, to the great nuisance of the ggs. good citizens of the State, and against the e Mass. K. S. c. 131 8 1. peace, &c. § 769 SPECIFIC OFFENCES. [BOOK III. That A, &c. on, &c. at, &c. did knowingly sell to one X a certain piece of diseased, corrupted, and unwholesome provisions, to wit, one hind leg of veal, then and there knowing the same to be diseased, corrupted, and un- wholesome,^ and without making the said condition of the said veal fully known to the said X ; against the peace, &c.^ § 768. Having Unwholesome Meat for Sale. — Under a pro- vision to punish one who " kills for the purpose of sale any sick, diseased, or injured animal, or who sells or has in his possession with intent to sell the meat of any such sick or diseased or in- jured animal," — must it be averred, to cover the interpreted lat- ter clause, that the defendant knew the unfit condition of the meat ? ^ The majority of the court adjudged it necessary to allege that the intended sale was to be " for food." And so the following would seem to suffice, — That A, &c. on, &c. at, &c. did unlawfully have in his possession, with the intent then and there to sell the same to be used and consumed for human food, the meat of certain sick, diseased, and injured hogs * [knowing the same so to be °] ; against the peace, &c.^ § 769. Calf too Young. — Upon the words " kills or causes to be killed, for the purpose of sale, any calf less than four weeks old," knowledge not being an affirmative element in the offence,^ it will be good to aver, — That A, &c. on, &c. at, &c. did unlawfully kill a certain calf less than four weeks old, with the intent then and there to sell the meat thereof [for human food °] ; against the peace, &c.' 1 This extending of the allegations be- ^ Not in the form before me. Whether yond the mere words of the statute was necessary or not will depend on how the held to be necessary. Compare with post, statute is interpreted. Ante, § 767 and §768,769; but the reader will observe that note. I presume that, on this point, the the terms of the statutes differ. just view, reconciling the cases and foUow- 2 Commonwealth' ti. Boynton, 12 Cush. ing the true reason of the law, does not re- 499. The word " confectionery " would quire this allegation where neither the word not be sufficiently definite in allegation. " knowingly " nor its equivalent is in the And see, for form, Commonwealth v. statute, but otherwise where it is. Chase, 125 Mass. 202. 6 Schmidt v. The State, 78 Ind. 41, 42. 2 Ante, § 767 and note. Compare with Commonwealth v. Ray- * In the form before me the expression mond, 97 Mass. 567 ; post, § 769. here is, " the meat of certain sick, diseased, ' Ante, § 651, note, and places there re- and injured animals, to wit, the meat of ferred to ; post, § 770. certain hogs." But as hogs are judicially 8 jjot jq ti]g fQj.jjj before me. Ante, known to be animals, this circumlocution § 768. is useless. Ante, § 346 and note. 9 Commonwealth v. Raymond, 97 Mass. 567. 426 CHAP. LXI.] NOXIOUS AND ADULTERATED FOOD. § 770 § 770. Adulterated Milk. — In some of the States statutes, in terms not entirely identical, make it a crime to sell or keep for sale adulterated milk.i The Massachusetts provisions, which have varied more or less from time to time, are, in part, as ap- pearing in the " Public Statutes," that one shall be punishable who, " by himself or by his servant or agent, or as the servant or agent of any other person, sells, exchanges, or delivers, or has in his custody or possession with intent to sell or exchange, or exposes or offers for sale or exchange, adulterated milk, or milk to which water or any foreign substance has been added." And, further on, that, "in all prosecutions under this chapter, if the milk is shown upon analysis to contain more than eighty- seven per cent of watery fluid, or to contain less than thirteen per cent of milk solids, it shall be deemed for the purposes of this chapter to be adulterated." ^ If, in the former of these pro- visions, the last " or" is interpreted in the sense of " to wit," so that the last clause is explanatory of the meaning of " adulter- ated milk," ** and if the latter provision is construed as declaring adulterated all milk below its standard of richness, whether a foreign substance has been added to it or not,* the description of the milk in the indictment need, on. principle, be only that it is " adulterated," without anything as to the manner or ele- ments of its adulteration.^ In this view the averments may be simply, — That A, &c. on, &c. at, &c. unlawfully sold to one X one quart of adul- terated milk [or, had in his custody and possession one hundred gallons of adulterated milk, with intent to sell the same ; or, exposed and offered for sale one hundred quarts of adulterated milk] ; against the peace, &c. The author is, not aware that the books contain anything against the sufficiency of this form. But pleaders have been in the habit of charging the offence more voluminously, and so the courts have had no occasion to decide whether or not less of alle- gation would suffice. Thus, — That A, &c. on, &c. at, &c. did unlawfully sell to one X [of M '], [for the sum of thirty-five cents'], a quantity, that is to say, eight quarts, of 1 Stat. Crimes, § 1124-1127. 42,44.; Commonwealth w. Evans, 132 Mass. 2 Mass. Pub. Stats, c. 57, § .5, 9. 11. 3 Commonwealth <;. Farren, 9 Allen, ^ Ante, § 663, note. 489, 491. ' Needless. Ante, § 78, 79. * Commonwealth«.Luscomb, 130 Mass. '' In most of our States not required. Ante, § 648 and note. 427 §772 SPECIFIC OFFENCES. [book ni. adulterated milk ; that is to say, a certain quantity, to wit, six quarts and one pint of milk, to which a certain quantity, that is to say, three pints of water had been added ; against the peace, &c.^ § 771. Adulterated Liquors. — Where one is declared punish- able " who shall manufacture, sell, or keep for sale any spirituous or intoxicating liquors, which are adulterated with any deleteri- ous or poisonous ingredients ; or shall manufacture, sell, or keep for sale any spirituous or intoxicating liquors made and com- pounded iu imitation of the liquors known as rum, gin, brandy, whiskey, elder brandj'^, or wine, and which are adulterated with any deleterious or poisonous ingredients,"^ the allegatioQS for the keeping may be, — That A, &c. on, &c. at, &c. did unlawfully keep for sale intoxicating liquors " [proceeding nbw on the former part of the statute] adulterated with deleterious and poisonous ingredients * \^or, proceeding on the latter part of the statute, intoxicating liquor made and compounded in imitation of the liquor known as Port wine, and adulterated with deleterious and poisonous ingredients] ; against the peace, &c.' § 772. Other Forms, — if required, may readily be drawn in analogy to the foregoing.^ 1 Commonwealth v. Evans, 132 Mass. II. If the adulteration needs to be par- ticularized, certainly, in reason, it may be done more briefly ; as, " ten quarts of adul- terated milk, consisting of a mixture of milk and water ; " adding, if now the pleader is not satisfied, what is always the truth, " iu proportions to the jurors un- known." Or, the method may be, " ten quarts of adulterated milk, whereof more than eighty-seyen per cent was watery fluid, and less than thirteen per cent was milk solids." But, if the pleader does this, he must avoid the sort of variance which was fatal on a comparison of the allegations and proofs in Commonwealth v. Luscomb, 130 Mass. 42. For other precedents, see Commonwealth v. Farren, 9 Allen, 489 Commonwealth v. McCarron, 2 Allen, 157 Commonwealth v. Flannelly, 1 5 Gray, 195 Commonwealth v. O'Donnell, 1 Allen, 593 Commonwealth v. Smith, 103 Mass. 444 Commonwealth v. Nichols, 10 Allen, 199. 2 Conn. Gen. Stats, of 1866, tit. 63, §46. ' Ante, § 644 and note. 428 * Possibly some may question whether there should not be either some particulari- zation here, or an allegation that the in- gredients are to the jurors unknown. Still, on the whole, this form would seem to be sufficient Ante, § 764 and note. 5 The State v. Stanton, 37 Conn. 421. Under a statute making it penal to " sell, to the prejudice of the purchaser, any ar- ticle of food or any drug which is not of the nature, substance, and quality of the article demanded by such purchaser," a con- viction was, in Webb v. Knight, 2 Q. B. D. 530 (and see Sandys v. Small, 3 Q. B. D. 449), sustained on the allegation, — That A, &c. on, &c. at, &c. did unlaw- fully sell, to the prejudice of X, -nho was then and there the purchaser, a certain article of food, to wit, one pint of gin, which was not of the nature, substance, and quality of the article demanded b3' the said X ; against the peace, &c. ° For keeping and selling kerosene oil below test. Downing v. The State, 66 Ga. 160. Adulterating seeds by dyeing, Fran- cis V. Maas, 3 Q. B. D. 341. CHAP. LXtl.] NUISANCE. § 774 CHAPTER LXII. NUISANCE.! § 773, 774. Introduction. 775-777. In General. 778,779. Barratry. 780-787. Bawdy-house. 788-790. Combustible and other Dangerons Things. 791; 792. Common Scold. 793-795. Disorderly House. 796, 797. Eavesdropping. 798-801. Evil Shows and Exhibitions. 802-804. Exposure of Person. 805-809. Gaming-house. 810-816. Injurious or Offensive Air. 817-822. Liquor and Tippling Shops. 823-826. Making Self a Nuisance. 827-831. Noxious and Offensive Trades, &c. 832, 833. Offensive and Hurtful Noises. 834, 835. Unwholesome Food and Water. § 773. Elsewhere. — Under the title " Way," forms for the va- rious injuries, including nuisances, to public carriage and foot ways, bridges, navigable rivers, public squares, harbors, and the like, will be given. Most of the other nuisances are for this chapter. But there are a few instances of what would be appro- priate here being placed under another title ; as, for example, the forms of indictment for the common nuisance of Sabbath- breaking are put into the chapter on the " Lord's Day." ^ § 774, How Chapter divided. — We shall begin with what is common to all nuisances, then proceed with particular ones. Thus, I. In General ; II. Barrati-y ; III. Bawdy-house ; IV. 1 For the direct expositions of the gen- 967 ; Crim. Proced. I. § 183, 275, 393, 772, eral law of nuisance, with the pleading, 1417; II. §812; Stat. Crimes, § 20, 21, practice, and evidence, see Crim. Law, I. 156, note, 169, 208, note, 214, 252, 260 a, § 1071-1082 ; Crim. Proced. II. § 860-874. 968, 973, 974-977, 1070 and note. And see, Incidental, Crim. Law, I. § 227, 236, 243, under the several sub-heads, the references 244, 265, 316, 317, 341, 419-422, 433, 490, pertaining to them. 491, 531, 792, 816-835 ; II. § 21, 227, 965, 2 Ante, § 662. 429 § 775 SPECIFIC OFFENCES. [BOOK lU. Combustible and other Dangerous Things ; V. Common Scold ; VI. Disorderly House ; VII. Eavesdropping ; VIII. Evil Shows and Exhibitions ; IX. Exposure of Person ; X. Gaming-house ; XI. Injurious or Offensive Air ; XII. Liquor and Tippling Shops ; XIII. Making Self a Nuisance ; XIV. Noxious and Offensive Trades and Business ; XV. Offensive and Hurtful Noises ; XVI. Unwholesome Food and Water. I. In General. § 775. Conclusion — (" To Common Nuisance," &c.). — The question whether or not the indictment must conclude " to the common nuisance," &c. is considered in other connections. In some exceptional cases, there is ground for saying that it must ; and, in some others, plainly it need not. For the mass of the cases there is for requiring it no reason which will bear scrutiny.^ Yet as the pleader cannot ordinarily know in advance what some precedent-loving judge may hold, the safe course will be to have this conclusion printed in all his blanks ^ for nuisance, and thus forestall trouble. The form of it in the precedents varies. Ex- amples are, " to the common nuisance of all the liege subjects of our said Lady the Queen there inhabiting, being, and residing, and going, returning, and passing through the said streets and highways ; " ^ " to the common nuisance of all the peaceable citi- zens of the State there residing, inhabiting, and passing ; " * " to the common nuisance of all the liege subjects of our said Lord the King ; " ^ " to the common nuisance of all the liege subjects of our said Lady the Queen ; " ® " to the common nuisance of all the citizens of the State of Indiana ; " ^ " to the common nuisance of the public ; " ^ " to the common nuisance of all the good citi- zens of this Commonwealth." ^ Plainly it suffices, and in reason it seems to be the best form, to say — To the common nuisance of all the people, against the peace, &c. [as at ante, § 65-69]. 1 Crim. Proced. II. § 862-864. And 6 Archb. Crim. PI. & Ev. 10th ed. 637, as to particular nuisances, lb. § 101, 200, 19th ed. 962. 353,810; Stat. Crimes, § 977. 'Mains v. The State, 42 Ind. 327, ^ Ante, § .51. indictment adjudged ill, but on other 8 Archb. Crim. PI. & Ev. 19th ed. 956. grounds. < The State v. Bailey, 1 Post. N. H. 343. « The State v. Odell, 42 Iowa, 75. Similar in Commonwealth v. Kimball, 7 ' Commonwealth v. Mohn, 2 Smith, Gray, 328. Pa. 243. 5 3 Chit. Crim. Law, 672. 430 CHAP. LXII.] NUISANCE. § 777 § 776. Classifications — Unity of OffencA — The classifications of this offence, as indicated by our several sub-titles, are only for convenience. Intrinsically, the offence is one, — common nuisance. If, for example, a man at a particular time and place gathers stuffs offensive both to the sight and to the smell, and likewise noxious to the health, and exhibits and uses them in a manner corrupting also to the public morals, thus doing what is within several of our sub-heads, he commits simply one nui- sance, and his entire wrong-doing may be charged in a single count. Or, if he keeps a place for bawdry, for tippling, for common gaming, and for the emission of offensive odors and noises, he thereby perpetrates one common nuisance, the par- ticulars of which, embracing what would constitute a bawdy- house, a common gaming-house, a tippling-house, and one or two other sorts of nuisance, may be averred against him in one count ; while, on the other hand, it is undoubtedly pos- sible to carry on separate and distinct nuisances at the same time.^ § 777. Formula for Indictment. — The particulars of the aver- ments will appear under the subsequent sub-titles. What is common to all the cases may be, — That A, &c. [ante, § 74-77], on, &c. [ante, § 80, or with the continu- audo as at ante, § 83, and see ante, § 81-84], at, &c. [ante, § 80, adding, when necessary, a setting out of the particular place], did, &c. [describing the individual nuisance, as see the sub-titles following] ; to the common nuisance of all the people [ante, § 775], against the peace, &c. [ante, § 65-69].^ 1 For the matter of this section, I 328 ; Peoples. Cunningham, 1 Denio, 524 ; have not before me specific enunciations Crim. Proced. II. § 106. of judges, or collections of adjudged points, 2 For precedents and forms, see Archb. sufficient to satisfy gentlemen who believe Crim. PI. & Ev. 19th ed. 955 960 962 nothing to be law except what appears in 966, '968, 987; 2 Chit. Crim. Law, 39-^ exact words in our books of reports. And 42,48,5.53-556; 3 lb. 622-668, 671-677, still the truth of this matter is just as cer- use h ; 4 Went. PI. 156, 190 197, IXZ-'ill ■ tain to the understanding of every compe- 61b. 384 ; 6 Cox C. C. App.'75-78 ; Trem! tent practitioner, familiar with our books P. C. 195-199, 241 ; Rex v. White, I Bur. and with the course of the courts, as if it 333 ; Rex v. Higginson, 2 Bur. 1232 ; Rex were printed letter for letter on every page v. Dewsnap, 16 East, 194; Rex r. Van- of every law book in existence. Some il- tandillo, 4 M. & S. 73 ; Rex ;;. Burnett, lustrations of the doctrine may be seen in 4 M. & S. 272 ; Rex v. Rogier, 1 B. & C. such cases as Commonwealth v. Ballou, 124 272 ; Rex v. Taylor, 3 B. & C. 502 ; Rex Mass. 26 ; Commonwealth n. Hill,14 Gray, ,;. Pedly, 1 A. & E. 822 ; Rex v. Tindall, 24 ; Commonwealth v. Langley, 14 Gray, 6 A. & E. 143 ; Reg. ii. Albert, 5 Q. B. 37 ; 21 ; Commonwealth v. Kimball, 7 Gray, Beg. v. Rosenthal, Law Eep. 1 Q. B. 93 ; 431 §77^ SPECIFIC OFFENCES. [book III. II. Barratry.^ § 778. Old Forms. — The precedents for the indictment, as given in the older books, sufficiently appear in " Criminal Pro- Eeg. V. Saunders, 1 Q. B. D. 15, 13 Cox C. C. 116 ; Keg. u. Webb, 1 Den. C. C. 338, 2 Car. & K. 933 ; Reg. v. Henson, Dears. 24 ; Reg. v. Holmes, Dears, 207, 3 Car. & K. 360, 6 Cox C. C. 216 ; Reg. v. Lister, Dears. & B. 209, 210, note, 7 Cox C. C. 342, 344 ; Reg. v. Crawshaw, Bell C. C. 303, 8 Cox C. C. 375 ; Reg. v. Elliot, Leigh & C. 103 ; Reg. v. Barrett, Leigh & C. 263, 9 Cox C. C. 255;' Reg. v. Thall- man, Leigh & C. 326, 9 Cox C. C. 388 ; Reg. V. fetannard, Leigh & C. 349 ; Reg. V. Mutters, Leigh & C. 491 ; Reg. v. Rice, Law Rep. 1 C. C. 21, 10 Cox C. C. 155; Reg. V. Medley, 6 Car. & P. 292 ; Reg. v. Grey, 4 Fost. & F. 73 ; Reg. o. Bunyan, 1 Cox C. C. 74 ; Reg. u. Watson, 2 Cox C. C. 376 ; Reg. v. Orchard, 3 Cox C. C. 248 ; Reg. V. Pridmore, 3 Cox C. C. 578 ; Reg. V. Fairell, 9 Cox C. C. 446 ; Reg. v. Har- ris, 11 Cox C. C. 659 ; Reg. v. Reed, 12 Cox C. C. 1 ; Reg. o. Munro, 24 U. C. Q. B. 44, 46. Alabama. — Wooster v. The State, 55 Ala. 217; Toney v. The State, 60 Ala. 97. Arkansas. — The State v. Mathis, 3 Pike, 84 ; The State a. Hazle, 20 Ark. 156. Colorado. — Chase v. People, 2 Col. Ter. 509. Connecticut. — Cadwell v. The State, 17 Conn. 467 ; The State v. Main, 31 Conn. 572 ; The State v. Thomas, 47 Conn. 546. Catoia. — Territory v. Stone, 2 Dak. 155, 160. Florida. — King v. The State, 17 Fla. 183, 188. Georgia. — Scarborough v. The State, 46 Ga. 26 ; Warner v. The State, 51 Ga. 426 ; Dohme v. The State, 68 Ga. 339. Idaho. — People d. Buchanan, 1 Idaho Ter. 681 ; People v. Ah Ho, 1 Idaho Ter. 691 ; People v. Goldman, 1 Idaho Ter. 714. Illinois. — Raymond v. People, 9 Bradw. 344. Indiana. — Ellis v. The State, 7 Blackf. 534 ; Bloomhuff u. The State, 8 Blackf. 205 ; Cable v. The State, 8 Blackf. 531 ; The State v. Zimmerman, 2 Ind. 565 ; McAlpin V. The State, 3 Ind. 567 ; Huber V. The State, 25 Ind. 175 ; Neaderhouser V. The State, 28 Ind. 257, 259 ; Earrell a. The State, 38 Ind. 136, 137 ; Crawford v. The State, 33 Ind. 304 ; Leary v. The State, 39 Ind. 544; Mains «. The State, 42 Ind. 327 ; Joseph v. The State, 42 Ind. 370 ; McLaughlin v. The State, 45 Ind. 338; Carr v. The State; 50 Ind. 178; Da- vis u. The State, 52 Ind. 488 ; Andery v. The State, 56 Ind. 328 ; Collins v. The State, 58 Ind. 5 ; Moses v. The State, 58 Ind. 185 ; Delano v. The State, 66 Ind. 348 ; Padgett v. The State, 68 Ind. 46 ; Douglass V. The State, 72 Ind. 385 ; The State V. Houck, 73 Ind. 37 ; Lorimer v. The State, 76 Ind. 495 ; The State v. Welch, 88 Ind. 308. Iowa. — The State v. Maurer, 7 Iowa, 406 ; The State v. Cure, 7 Iowa, 479 ; The State V. Middleton, 11 Iowa, 246 ; The State V. Schilling, 14 Iowa, 455 ; The State V. Baughman, 20 Iowa, 497 ; The State v. Freeman, 27 Iowa, 333 ; The State v. Har- ris, 27 Iowa, 429 ; The State v. Stapp, 29 Iowa, 551 ; The State v. Allen, 32 Iowa, 248 ; The State v. Kaster, 35 Iowa, 221 ; The State v. Close, 35 Iowa, 570; The State V. Chartrand, 36 Iowa, 691 ; The State V. Jordan, 39 Iowa, 387 ; The State V. Alderman, 40 Iowa, 375 ; The State u. Odell, 42 Iowa, 75 ; The State v. Reining- haus, 43 Iowa, 149 ; The State v. Spur- beck, 44 Iowa, 667 ; The State v. Holmes, 56 Iowa, 588. Kansas. — The State v. Teisscdre, 30 1 For the direct expositions of this of- Proced. II. § 98-103. Incidental, Crim. fence, with the pleading, practice, and evi- Law, I. § 541, 974, 975 ; Crim. Proced. I. dence, see Crim. Law, II. § 63-69 ; Crim. § 470, 494, 630 ; IL § 863. 432 CHAP. LXII.J NUISANCE. §7T8 cedure," accompanied by all needful explanations.^ Omitting their obvious surplusage, — Kan. 476, 480 ; The State v. Nickerson, 30 Kan. 545, 547. Kentucky. — Morrison v. Common- wealth, 7 Dana, 218 ; Overshiner v. Com- monwealth, 2 B. Monr. 344 ; Smith u. Commonwealth, 6 B. Monr. 21 ; Wilson v. Commonwealth, 12 B. Monr. 2; Barring V. Commonwealth, 2 Duv. 95 ; Harlow v. Commonwealth, II Bush, 610. Maine. — The State v. Sturdivant, 21 Maine, 9 ; The State v. Haines, 30 Maine, 65 ; The State ;;. Hart, 34 Maine, 36 ; The State V. Payson, 37 Maine, 361 ; The State V. Homer, 40 Maine, 438 ; The State v. Stevens, 40 Maine, 559 ; The State v. Col- lins, 48 Maine, 217 ; The State v. Board- man, 64 Maine, 523 ; The State u. Ruby, 68 Maine, 543. Maryland. — Smith v. The State, 6 Gill, 425 ; Wheeler v. The State, 42 Md. 563 ; Clayton v. The State, 60 Md. 272. Massachusetts. — Commonwealth u. Gowen, 7 Mass. 378 ; Jennings u. Com- monwealth, 17 Pick. 80; Commonwealth V. Tilton, 8 Met. 232 ; Commonwealth v. Fisk, 8 Met. 238 ; Stratton v. Common- wealth, 10 Met. 217 ; Commonwealth u. Brown, 13 Met. 365 ; Commonwealth v. Smith, 6 Cash. 80 ; Commonwealth v. Moore, 11 Cush. 600; Commonwealth v. Haynes, 2 Gray, 72 ; Commonwealth v. Ashley, 2 Gray, 356 ; Commonwealth c/. Kimball, 7 Gray, 328 ; Commonwealth v. Hoye, 9 Gray, 292 ; Commonwealth v. Bux- ton, 10 Gray, 9 ; Commonwealth v. Skelley, 10 Gray, 464 ; Commonwealth v. Hart, 10 Gray, 465 ; Commonwealth v. Kelly, 12 Gray, 175 ; Commonwealth u. Quinn, 12 Gray, 178 ; Wells v. Commonwealth, 12 Gray, 326 ; Commonwealth v. Howe, 13 Gray, 26 ; Commonwealth v. Barnes, 13 Gray, 26 ; Commonwealth v. Langley, 14 Gray, 21 ; Commonwealth v. Hill, 14 Gray, 24 ; Commonwealth v. Taylor, 14 Gray, 26; Commonwealth v. Donovan, 16 Gray, 18 ; Commonwealth v. Kumford Chemical Works, 16 Gray, 231 ; Commonwealth w. Welsh, 1 Allen, I ; Commonwealth v. Gal- lagher, 1 Allen, 592 ; Commonwealth v. Sul- livan, 5 Allen, 511 ; Commonwealth v. Stahl, 7 Allen, 304 ; Commonwealth v. Walton, 11 Allen, 238; Commonwealth c. Greenen, 11 Allen, 241 ; Commonwealth v. Blake, 12 Allen, 188; Commonwealth t). Wright, 12 Allen, 190; Commonwealth;'. Norton, 13 Allen, 550 ; Commonwealth v. Hawks, 13 Allen, 550; Commonwealth i'. Harris, 101 Mass. 29 ; Commonwealth v. Smith, 102 Mass. 144; Commonwealth y. Martin, 108 Mass. 29, note; Commonwealth V. Bennett, 108 Mass. 27 ; Commonwealth v. Dunn, 1 1 1 Mass. 425, 426 ; Commonwealth V. Oaks, 113 Mass. 8 ; Commonwealth v. Shea, 115 Mass. 102; Commonwealth i. Campbell, 116 Mass 32; Commonwealths. Mclvor, 117 Mass. 118; Commonwealth v. Costello, 1 18 Mass. 454 ; Commonwealth v. Bulman, 118 Mass. 456 ; Commonwealth v. Cardoze, 1 19 Mass. 210 ; Commonwealth v. Ballon, 124 Mass. 26; Commonwealth v. Kahlmeyer, 124 Mass. 322 ; Commonwealth V. Fraher, 126 Mass. 56 ; Commonwealth V. Eonan, 126 Mass. 59 ; Commonwealth v. Wardell, 128 Mass. 52 ; Commonwealth v. Sweeney, 131 Mass. 579 ; Commonwealth t'. Lavonsair, 132 Mass. 1 ; Commonwealth V. Roberts, 132 Mass. 267. Michigan. — Palmer v. People, 43 Mich. 414, 415. Minnesota. — The State v. Reckards, 21 Minn. 47, 48. Missouri. — The State v. Palmer, 4 Misso. 453 ; Neales v. The State, 10 Misso. 498 ; The State v. Gardner, 28 Misso. 90. New Hampshire. — Lord v. The State, 16 N. H. 325 ; The State v. Lord, 16 N. H. 357 ; The State v. Bailey, 1 Post. N. H. 343 ; The State v. Leighton, 3 Post. N. H. 167 ; The State u. Noyes, 10 Post. N. H. 279 ; The State v. Prescott, 33 N. H. 212 ; The State r. McGregor, 41 N. H. 407 ; The State v. Perkins,' 42 N. H. 464 ; The State V. Wilson, 43 N. H. 415. New Jersey. — Morris, &c. Railroad v. The State, 7 Vroom, 553, 554 ; The State V. Society for Useful Manuf. 13 Vroom, 504, 505. New York. — People v. Sands, 1 Johns. 78 ; People v. Townsend, 3 Hill, N. Y. 479 ; People V. Cunningham, 1 Denio, 524; 1 Crim. Proced. IL § 98-103. 28 433 § 780 SPECIFIC OFFENCES. [book hi. § 779. Modified. — It is believed that, for modern use, the following form, wherein the substance of the old precedents is preserved, will be found judicious : — That A, &c. on, &c. [as at ante, § 80, or with the continuando as at ante, § 83, at the election of the pleader '], at, &c. was [adding, if the pleader chooses, for so are the old forms, and yet is] a common barrator, stirring up, moving, and procuring strifes, quarrels, suits, and controversies among the people ; to the common nuisance of all the people [ante, § 775], against the peace, &c.^ III. Bawdy-house.^ § 780. Complicated with other Nuisances. — In the facts of cases, bawdry and other elements of nuisance often exist together Munson v. People, 5 Parker C. C. 16 ; Taylor v. People, 6 Parker C. C. 347 ; Peo- ple V. Carey, Sheldon, 573. North Carolina. — The State v. Lang- ford, 3 Hawks, 381 ; The State v. Cobb, 1 Dev. & Bat. 115; The State v. BaId\Yin, 1 Dev. & Bat. 195; The State u. Koper, 1 Dev. & Bat. 208 ; The State v. Langford, 3 li-e. 354 ; The State v. Evans, 5 Ire. 603 ; The State v. Patterson, 7 Ire. 70 ; The State V. Wright, 6 Jones, N. C. 25. Ohio. — Smith v. The State, 22 Ohio State, 539 (order for abatement) ; Crofton V. The State, 25 Ohio State, 249 ; Matthews V. The State, 25 Ohio State, 536. Pennsylvania. — Commonwealth v. Eckert, 2 Browne, Pa. 249 ; Common- wealth V. Reed, 10 Casey, Pa. 275 ; Com- monwealth V. Mohn, 2 Smith, Pa. 243 ; Commonwealth v. "Van Sickle, Brightly, 69; Commonwealth v. Spratt, 14 Philad. 365. Rhode Island. — The State v. Hopkins, 5 R. I. 53 ; Plastridge v. The State, 6 R. I. 76 ; The State v. Tracey, 12 R. I. 216. South Carolina. — The State v. Purse, 4 McCord, 472 ; The State v. Rankin, 3 S. C. 438. Tennessee. — Britain v. The State, 3 Humph. 203 ; The State v. Pennington, 3 Head, 299 ; Cornell v. The State, 7 Bax- ter, 520 ; The State v. Wheatley, 4 Lea, 230. Texas. — The State v. Flynn, 35 Texas, 354 ; The State <,-. GriflSn, 43 Texas, 538 ; 434 Thompson v. The State, 1 Texas Ap. 56, 57; Lasindo c'The State, 2 Texas Ap. 59 ; Thompson v. The State, 2 Texas Ap. 82 ; Lowe v. The State, 4 Texas Ap. 34, 36 ; Johnson v. The State, 4 Texas Ap. 63 ; Thompkins v. The State, 4 Texas Ap. 161. Vermont. — The State v. Nixon, 18 Vt. 70 ; The State v. Riggs, 22 Vt. 321 ; The State V. Paige, 50 Vt. 445 ; The State v. Haley, 52 Vt. 476. Virginia. — Stephen v. Commonwealth, 2 Leigh, 759. Wisconsin. — Taylor u. The State, 35 Wis. 298. United States. — District of Columbia. United States v. Royall, 3 Cranch C. C. 618, 620 ; United States v. Holly, 3 Cranch C. C. 656, 658 ; United States v. Dixon, 4 Cranch C. C. 107 ; United States v. Jack- son, 4 Cranch C. C. 483 ; United States v. Milburn, 4 Cranch C. C. 719 ; United States V. Benner, 5 Cr.inch C. C. 347 ; United States v. McDuell, 5 Cranch C. C. 391. 1 Crim. Proced. II. § 103. 2 Eor the precedents, see also 2 Chit. Crim. Law, 232 a ; Rex i'. Lever, Trem. P. C. 320 ; Rex v. Spencer, Trem. P. C. 224. » For the direct expositions, of this of- fence, with the pleading, practice, and evi- dence, see Crim. Law, I. § 1083-1096 ; Crim. Proced. II. § 104-122. Incidental, Crim. Law, I. § 361, 500, 686, 734, 974 ; Stat. Crimes, § 21, 279, 679. CHAP. L^II.J NUISANCE. § 782 in a house. The indictment may charge all in a single count, not being thereby rendered double.-' Thus, — § 781. Common-law Precedent. — A precedent in an approved book, is, with its surplusage, — That A, &c. on, &c. [and on divers days and times between that day and the day of taking this inquisition. Better, if the pleader chooses the continuing form,'' to say] and thence continually until the day of the find- ing of this indictment^ [with force and arms^], at, &c. a certain common bawdy-house [situate,^ &c.J unlawfully and wickedly did keep and main- tain ; and, in the said house [for filthy lucre and gain"*], divers evil-disposed persons, as well men as women, and whores, on the days and times afore- said \or, during all the time aforesaid '], as well in the night as in the day, there unlawfully and wickedly did receive and entertain, and in which said house the said evil-disposed persons and whores, by the consent and procurement of the said A, on the days and times aforesaid, there did commit whoredom and fornication ; whereby divers unlawful assemblies, riots, routs, affrays, disturbances, and violations of the peace [of our said Lord the King'], and dreadful, filthy, and lewd offences in the same house, on the days and times aforesaid, as well in the night as in the day, were there committed and perpetrated; to the [great damage" and] common nuisance of all the people [ante, § 775, or liege subjects of our Lord the King], [in manifest destruction, ruination and subversion of youth and other people, their manners, conversation, estate, and obedience," and] against the peace, &c.^^ § 782. Abridged and Strengthened. — The foregoing form may be considerably reduced in its words, without taking from it any- thing important. The following, for bawdry only, is believed to be good at the common law, and on any statute which it duly covers, and likewise to be stronger at one place than the ordinary precedents ; thus, — 1 Ante, § 776; Crira. Proced. II. § 106. 6 Unnecessary. Crim.Proced.n.§ 108. * Ante, § 81. 1 Ante, § 84. * Ante, § 82, 83. ' Evidently rot necessary ; or, if the * Unnecessary. Ante, § 43. pleader prefers, substitute " of the people of 6 Chitty says here, referring to J' Anson the State." V. Stuart, 1 T. R. 748, 754, " Semble, it is ' Unnecessary. Ante, § 48. necessary to state the local situation, and '" Needless, within the principles of ante, therefore it may be prudent here to say § 48 ; Crim. Proced. I. § 647. 'situate,' &c." 2 Chit. Crim. Law, 40, " 2 Chit Crim. Law, 39. Where baw- note. This suggestion seems not to have dry only is to be charged, the pleader who been followed in England, and the current chooses to foUow literally an old precedent books of practice do not contain this mat- will be likely to prefer the one in Crim. ter. Archb. Crim. PK & Ev. 19th ed. 960, Proced. IL § 10.5. Concerning the suffi- 961. Evidently it is not necessary. Ante, ciency of this sort of f orm, and for a sugges- § 1 79, 253, and the notes, and places there- tion toward its improvement, see post, § 782 in referred to ; Crim. Proced. II. § HI. and note. 435 §782 SPECIFIC OFFENCES. [book III. That A, &c. on, &c. [adding the continuando if the pleader chooses^], at, &c. did unlawfully keep and maintain a house open to the public ^ night and day for common bawdry ; enticing thereto and harboring therein lewd women and common prostitutes, and weak and deluded lascivious men attracted thereto by the said women and prostitutes, and enticing men and women to meet there for common bawdry ; thereby causing and procuring common bawdry, fornication, and adultery to be committed therein night and day, and youths and others to be corrupted and ruined in body, mind, and estate ; to the common nuisance of all the people [ante, § 775, 777], against the peace, &c.* 1 Ante, § 777. 2 Open to Public. — The words " open to the public " are new in this sort of indict- ment. In Mains v. The State, 42 Ind. 327, an indictment in the common form for keeping a disorderly house, including havvdry, was adjudged ill because, as the court deemed, it did not, by any averment of the special location of the house, or by any other averment, show an injury to the public ; that is, to people not dwelling in the house. And see Crim. Law, I- § 1 109. There is ground to argue that, contrary to the views of the learned tribunal in this case, the common form of allegation does show such injury to the public ; and a strong evidence that it does, is its common acceptation as doing it. Still there is, at least, suiBcient force in the views of this learned court to suggest the propriety of supplying the defect, whether regarded as real or supposed. And the introduction of the words we are considering seems fully to supply it, though they are not precisely such as were contemplated by the court as the natural method. ' It will be convenient for the reader to be referred here to some precedents, though they are a part of the same which are cited ante, § 777. 2 Chit. Crim. Law, 39 ; Reg. V. Stannard, Leigh & C. 349, 9 Cox C. C. 405 ; Reg. v. Barrett, Leigh & C. 263, 9 Cox C. C. 255 ; Reg. v. Rice, Law Rep. 1 C. C. 21, 10 Cox C. C. 155. Alabama. — Wooster v. The State, 55 Ala. 217 ; Toney v. The State, 60 Ala. 97. Connecticut. — CadweU v. The State, 17 Conn. 467 ; The State v. Main, 31 Conn. 572. Dakota. — Territory v. Stone, 2 Dak. 155. 160. Florida. — King v. The State, 17 Fla. 183, 188. 436 Georgia. — Scarborough v. The State, 46 Ga. 26. Idaho. — People v. Buchanan, 1 Idaho Ter. 681 ; People u. Ah Ho, 1 Idaho Ter. 691. Illinois. — Raymond v. People, 9 Bradw. 344. Indiana. — Mains v. The State, 42 Ind. 327. Iowa. — The State v. Chartrand, 36 Iowa, 691 ; The State v. Alderman, 40 Iowa, 375 ; The State v. Odell, 42 Iowa, 75 ; The State v. Spurbeck, 44 Iowa, 667 ; The State v. Holmes, 56 Iowa, 588. Kentucky. — Harlow v. Commonwealth, 11 Bush, 610. Maine. — The State v. Homer, 40 Maine, 438 ; The State v. Stevens, 40 Maine, 559; The State v. Boardman, 64 Maine, 523. Maryland. — Smith v. The State, 6 Gill, 425. Massachusetts. — Jennings v. Common- wealth, 1 7 Pick. 80 ; Commonwealth v. Moore, 11 Cush. 600; Commonwealth v. Ashley, 2 Gray, 356 ; Commonwealth u. Kimball, 7 Gray, 328 ; Commonwealth v. Hart, 10 Gray, 465 ; Wells v. Common- wealth, 12 Gray, 326 ; Commonwealth v. Langley, 14 Gray, 21 ; Commonwealth v. Hill, 14 Gray, 24; Commonwealth v. Tay- lor, 14 Gray, 26 ; Commonwealth v. Don- ovan, 16 Gray, 18 ; Commonwealth i>. Oardoze, 119 Mass. 210; Commonwealth u. Ballou, 124 Mass. 26; Commonwealth v. Lavonsair, 132 Mass. 1. New Hampshire. — The State v. Mc- Gregor, 41 N. H. 407. North Carolina. — The State v. Evans, 5 Ire. 603. Ohio. — Crofton v. The State, 25 Ohio State, 249. CHAP. LXII.] NUISANCE. §784 § 783. On Statute. — As all statutory terms should be duly covered, the pleader will often from necessity, prudence, or good taste draw his indictment in words differing from the foregoing. Nor will he, on every statute, be required or care to enter into all the expansions which caution dictates in the common-law indictment.! For example, — § 784. House of Ill-fame. — The statutes of various States coin- cide in making it punishable for one to " keep a house of ill- fame, resorted to for the purpose of prostitution or lewdness." The indictment always and properly covers these terms, and some of the precedents expand also the allegations in analogy to the common-law indictment. But such expansion has been ad- judged needless.2 The neat and sufficient form is, — That A, &c. on, &c. and thence continually until the day of the finding of this indictment,' at, &c. did unlawfully keep and maintain a cer- tain house of ill-fame,^ resorted to for the purposes of prostitution and lewdness ; to the common nuisance of all the people,* against the peace, &c.» Tennessee. — The State v. Wheatley, 4 Lea, 230. Texas. — Thompson v. The State, 1 Texas Ap. 56, 57 ; Lasindo v. The State, 2 Texas Ap. 59 ; Thompson v. The State, 2 Texas Ap. 82 ; Tompkins v. The State, 4 Texas A p. 161 ; Lowe v. The State, 4 Texas Ap. 34, 36. Vermont. — The State v. Nixon, 18 Vt. 70. 1 Thus, where an indictment simply covering the statutory words recited in our next section was objected to, Metcalf, J. speaking for the whole court, and holding the averments adequate, did not deem it necessary to consider whether or not they satisfied the common-law requirements, but said : " We are of opinion that this is a case in which an indictment so framed is sufficient; because no allegation of any- thing more than those words, ex vt termino- rum, import, is necessary in order to show that the defendant has committed the stat- ute offence." Commonwealth v. Ashley, 2 Gray, 356, 357. " As see note to ante, § 783. Also, other eases cited infra, to this section. ^ Or, without the continuando as the pleader elects. As to which, and the form of the continuando, and the exceptional doctrine in Massachusetts, see ante, § 81- 84, and the places there cited. See also ante, § 775, 777. < If the pleader chooses, he can add here, as at ante, § 782, " open to the public night and day." But, assuming this ex- pression, or some substitute for it, to be necessary in the common-law indictment, I cannot see that it is therefore so in this. If the allegations without it do not show a public injury, they set out a violation of the statute, declared to be punishable, and no more can be required. * Not in the form before me, nor do I deem it necessary. Still I should ordinarily retain this clause for the reason explained ante, § 775. ^ Commonwealth v. Ashley, 2 Gray, 356. And for forms differing more or less from this one under the same statutory words, see The State v. Homer, 40 Maine, 438 ; The State v. Stevens, 40 Maim, 559; The State V. Odell, 42 Iowa, 75 ; The State v. Chartrand, 36 Iowa, 691 ; The State v. Spurbeck, 44 Iowa, 667 ; Cadwell v. The State, 17 Conn. 467. And on similar en- actments. Commonwealth v. Kimball, 7 Gray, 328; Wells v. Commonwealth, 12 Gray, 326. Texas. — The Texas statute is differently expressed, but the indictment thereon is constructed on the same prin- ciples. See, for it and form, Thompson o. 437 § 786 SPECIFIC OFFENCES. [BOOK in. § 785. Letting for Bawdry. — There are differences of opinion as to the precise limits of this common-law offence, and the alle- gations required in the indictment.^ If we adhere to what is believed to be the better American opinion, that the conniving landlord is answerable criminally as keeper,^ the foregoing forms in this sub-title will suffice for the pleader. On the theory that the special facts must be set out, or even though they need not be,^ it will be good to aver, — That A, &c. on, &c. at, &c. unlawfully did knowingly let to one X a certain house there situate, of him the said A [_or, of which he the said A had then and there the control and the power of letting out], with the intent that the said A should afterward, during the contin^iance of the said letting and lease thereof, there keep and maintain the same as a com- mon bawdy-house [open to the public night and day ^] ; and, after the said letting, on the day and year aforesaid, and thence continually to the day of the finding of this indictment, the said X did, with the connivance and procurement of the said A as aforesaid, there keep and maintain the said house as a common bawdy-house [open to the public night and day], [causing and procuring great numbers of lewd and debauched men and women, common prostitutes, and rakes, therein to assemble and remain night and day, whoring, committing fornication and adultery, misbehaving themselves, and debauching their own and the public morals and man- ners ^ ] ; against the peace, &c.° § 786. Same on Statute. — A statute made punishable any per- son "knowingly permitting," among other things, "any house or building" "to be used or occupied " "as a house of ill-fame, or for the purpose of prostitution." And it would seem ade- quate in allegation simply to cover the statutory terms, as before explained;^ but the precise question has probably not been adjudged. The substance of needlessly prolix averments, which in one case were sustained, is, — • The State, 2 Texas Ap. 82. And for other * After the precedent in Smith v. The forms see the other cases cited ante, § 782, State, 6 Gill, 425. The indictment was on note, " Texas." the common law, and was adjudged suffi- 1 Crim. Law, I. § 1090-1096 ; Crim. cient. In the transcribing I have slightly Proced. II. § 119, 120. strengthened it, but not much, except by 2 Crim. Proced. I. § 119. the matter in brackets. Compare with the ^ lb. § 120. form, which was sustained, in Kex v. Ped- * Not in the form before me, but here ly, 1 A. & E. 822. For other forms, see introduced for the reason explained ante, Commonwealth v. Moore, 11 Cush. 600; § 782, note. Territory ?>. Stone, 2 Dak. l.'iS, 160; The * Not in the form before me, which was State v. Wheatley, 4 Lea, 230 ; Crofton v. adjudged sufficient ; but it is not unlikely The State, 25 Ohio State, 249. that some courts might deem matter of this ' Ante, § 783, 784. sort important. 438 CHAP. LXII.] NUISANCE. § 788 That A, &c. on, &c. at, &c. being the owner of a certain house there situate, did then and there unlawfully and knowingly permit one X to use and occupy the same as, and for the purpose of keeping therein, a house of ill-fame, and for the purpose of common prostitution [the statute would seem now to be fully covered, but the form proceeds with what is probably surplusage; namely], and therein, then and there, to keep divers, to wit, five female persons, whose names are to the jurors unknown, for the pur- pose of prostitution, with the intent that they should therein, then and there, have illicit carnal intercourse and commit whoredom with divers, to wit, ten men, whose names are to the jurors unknown ; to the common nuisance of all the people [ante, § 775], against the peace, &c.^ § 787. Other Forms. — The offence under statutes, and even under the common law, may occasionally present itself in aspects different from those already contemplated in this sub-title,^ but further expositions do not seem required. IV. Combustible and other Dangerous Things? § 788. Explosive Substance. — The allegations for the common- law offence, adapting to our use a form adjudged good in Eng- land, may be, — That A, &c. on, &c. at, &c. not regarding the lives and security of the people, unlawfully, knowingly, and wilfully did deposit in a certain ware- house and premises of him the said A, and near to divers streets and com- mon highways there, and to divers dwelling-houses of good and quiet people there residing, to wit, in N lane in M aforesaid, divers large and excessive quantities of a certain dangerous, ignitable, and explosive fluid called wood naphtha, to, wit, ten thousand gallons thereof, and there, from the day aforesaid continually until the day of the finding of this indictment, unlawfully, knowingly, and wilfully did keep in the said warehouse and premises and near to the streets, highways, and dwelling-houses aforesaid, the said fluid in such large, excessive, and dangerous quantities as afore- said ; by reason whereof, during the time aforesaid, the people passing and proceeding in, through, and along the said streets and highways, and those residing and being near to the said warehouse and premises, were in great danger and peril of their lives and property, and were kept in great alarm, 1 Crofton V. The State, 25 Ohio State, Raymond ;;. People, 9 Bradw. 344. Ke- 249. siding. — For residing in a bawdy-house, 2 Dance Hall. — For a form for keep- People v. Ah Ho, 1 Idaho Ter. 691. ing a dance hall, where men and women ^ For the direct expositions, see Crim. assemble, then go away for prostitution, Law, I. § 1097-1100. Incidental, lb. I. Commonwealth v. Cardoze, 119 Mass. 210. § 318, 531, 832, 1080; Stat. Crimes, § 20, Patronizing. — For a form for patronizing 21, 1112. a house of ill-fame contrary to a statute, 439 § 791 SPECIFIC OFFENCES. [BOOK III. fear, and terror, and were greatly impeded, disturbed, and incommoded in the performance of their lawful occupations, and prevented and deterred from using the said streets and highways, and from passing and repassing over, through, and along the same as otherwise and but for the premises aforesaid they could, might, and ought to have done ; to the common nui- sance of all the people [ante, § 775], against the peace, &c.^ § 789. Ferocious Dog. — Adapting and modifjdng to our use an English precedent, and so strengthening it that it will more cer- tainly satisfy the requirements of the common law on which it is drawn, we have, — • That A, &c. on, &c. and thence continually until the day of the finding of this indictment [ante, § 777], at, &c. did knowingly and unlawfully keep unmuzzled and at large, near unto a certain highway there, whereon people were constantly travelling and passing and having occasion to travel and pass, a certain large dog, which during all said time was there, as the said 'A well knew, fierce, ferocious, and dangerous, and used and accustomed to bite mankind ; by reason whereof, during all said time,^ the people aforesaid could not there go, return, pass, and labor in and through the said common highway without great hazard and danger of being bitten, maimed, and torn by the said dog ; to the common nuisance of all the people [ante, § 775], against the peace, &c.'^ § 790. Elsevrhere and other Forms. — Under some of our other sub-titles, particularly the eleventh, there are forms which some would deem appropriate here. And see the note.* V. Common Scold.^ § 791. No Old Precedents. — Though this offence seems often to have been prosecuted in the forming periods of our law, singu- larly not a single precedent for the indictment has, it is believed, 1 Keg. V. Lister, Dears. & B. 209, 7 Cox ^ 3 chit. Ciim. Law, 643. Por a like C. C. 342. This case was carefully and form, see United States v. McDuell, 5 twice argued, once before tlie entire twelve Cranch C. C. 391. For knowingly keep- judges, both as to the indictability of the ing an unruly bull in a field through which facts, and as to the sufficiency of the aver- there was a public footway, 3 Chit. Crim. ments. The judgment was practically Law, 642. nnanimous. In People v. Sands, 1 Johns. ^ For emitting from a locomotive, sparks V8, which was an indictment for keeping, which caused fires, Morris, &c. Railroad o. and for transporting through the streets, The State, 7 Vroom, 553, 554. large quantities of gunpowder under cir- * For the direct expositions, see Crim. cumstances analogous to these, the particu- Law, L § 1101-1105; Crim. Proced. II. lar allegations were by the majority of § 199-201. Incidental, Crim. Law, I. the court held not duly to point out the § 540, 943 ; Crim. Proced. I. § 470, 494 ; danger. II. § 863. 440 CHAP. LXII.] NUISANCE. § 794 come down to us. And only in American books can any form for it be found. Still, — § 792. Form. — The principles on which the indictment should be constructed are stated in the English books and confirmed in the American. It may allege, — That A, &c. on, &c. and thence continually until the day of the finding of this indictment [ante, § 777], at, &c. was a common scold, continually scolding and disturbing the peace of the neighborhood and of all good and quiet people ; to the common nuisance of all the people [ante, § 775], against the peace, &c.* VI. Disorderly House? § 793. Elsewhere. — A bawdy-house being a species of disor- derly house, what is said under the sub-title " Bawdy-house " ^ should be consulted as a part of this sub-title. It is so also, in a degree or fully, of the sub-titles " Evil Shows and Exhibitions," "Gaming-house," "Liquor and Tippling Shops," and "Noxious and Offensive Trades and Business." § 794. Formula for Indictment. — No formula, differing from what is given under the sub-title " Bawdy-house," is required here.* 1 This is, in substance, yet not entirely Sliould not the words, in this sort of case, in exact words, one of two counts, both of be alleged % It seems to me not improb- which were held good, in Commonwealth able that some of our judges would hold V. Mohn, 2 Smith, Pa. 243. The other that they must be. In connection with the count alleged, — form in the text, consult the somewhat That the said A, on, &c. [as before], at, ^'■^^i"A"'"T^°"^ in United States .. &c. [being an ovil-disposed person, unneces- Roya". 3 Cranch C. C. 620. And compare sary, ante, § 46], [and designing, contriving, with United States v. Royall, 3 Cranch C. C. and intending the morals as wefl of youth as 6 ' 8, where a form not greatly differing from of divers other citizens of this Commonwealth the one in this note was adjudged ill. to debauch and corrupt, probably mere sur- ^ For the direct expositions of the law, plusage], openlj' and publicly with a loud pleading, evidence, and practice relating to voice, in the public highways, wicked, scan- this offence, see Crim. Law, I. § 1106-1121 ; dalous, and infamous words did utter in the Cj.;^, Proced. II. § 272-283. Incidental, hearing of the citizens of the Commonwealth q^.^^ l^^_ j g 3(g_ gg,^ 5q^ . q^-^^ pj.^. [concluding as in other cases]. ^^^j j o ^^^ It seems to me that there is more room ^ Ante, § 780-787. to doubt the sufficiency of this form in gen- * Ante, § 782. For precedents, see 2 eral American practice than the one in the Chit. Crim. Law, 39, 40 ; 3 Chit. Crim. text. The offence here charged is, not the Law, 673 ; 6 Cox C. C. App. 78 ; Rex v. continual brawl of the common scold, where Higginson, 2 Bur. 1232; Reg. «. Prid- the impossible setting out of the words is more, 3 Cox C. C. 578 ; Reg. v. Munro, not required, but the uttering of scandalous 24 U. C. Q. B. 44, 46. and infamous words in the highways. Indiana. — Bloomhuff v. The State, 8 Compare with ante, § 241-243, 632-635. Blackf. 205 ; Farrell ;;. The State, 38 Ind. 441 § 797 SPECIFIC OFFENCES. [BOOK III. § 795. Common Form. — A common form of the indictment is, — That A, &c. on, &c. and thence continually until the day of the finding of this indictment [ante, § 81-84, or^ if the pleader chooses, omitting the continuando, ante, § 80, 81], at, &c. [with force and arms '] a certain com- mon, ill-governed, and disorderly house [open to the public, or open to the public night and day ^'\ unlawfully did keep and maintain ; and, in said house [for his own lucre and gain^], 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 willingly 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, quarrelling, and otherwise misbehaving themselves, unlawfully did permit and suffer ; to the common nuisance of all the people [ante, § 775, 777], against the peace, &o.* VII. Eavesdropping? § 796. As to Precedents — Elsewhere. — The English books furnish no precedents of the indictment for this offence. A form suggested by the present author is given in " Criminal Pro- cedure." ^ § 797. About Grand-jury Room. — We have an American pre- cedent for eavesdropping about a grand-jury room, — adjudged to be indictable at the common law." But it is too slovenly in 136, 137 ; Leary v. The State, 39 Ind. 544 ; 1 Not necessary. Ante, § 43. Mains u. The State, 42 Ind. 327. ^ Not in the precedent before me, or Iowa. — TheStatew.Maurer,? Iowa, 406. generally employed. The reasons for in- Kentuchy. — Smith !;. Commonwealth, 6 serting this matter are explained ante, B. Monr. 21 ; Wilson c. Commonwealth, § 782, note ; Crim. Proced. II. § 273, note. 12 B. Monr. 2. ^ Unnecessary, Crim. Law, I. § 1112 ; Massachusetts. — Commonwealth v. Crim. Proced. II. § 274. Kimball, 7 Gray, 328,; Commonwealth v. * The State v. Bailey, 1 Post. N. H. 343 ; Bulman, 118 Mass. 456. 2 Chit. Crim. Law, 40 ; Rex v. Higginson, Minnesota. — The State v. Eeckards, 21 2 Bur. 1232 ; Smith v. Commonwealth, 6 Minn. 47, 48. B. Monr. 21 ; Commonwealth i. Bulman, New Hampshire. — The State v. Bailey, 118 Mass. 456. So far as I see, this form 1 Post. N. H. 343. appears to have originated in Rex v. Hig- New York. — People v, Carey, Sheldon, ginson, supra, though it may have been in 573. earlier use. North Carolina. — The State u. Patterson, ^ For the direct expositions of this of- 7 Ire. 70; The State v. Wright, 6 Jones, fence and the procedure, se? Crim. Law, I. N. C. 25. §1122-1124; Crim. Proced, IL § 312, 313. Texas. — The State v. Flynn, 35 Texas, Incidental, Crim. Law, I. § 540. 354 ; Johnson v. The State, 4 Texas Ap, 63. <* Crim, Proced. II, § 312. United States. — United States v. Ben- ' " If," said Caruthers, J. "it be an in- ner, 5 Cranch C. C. 347. dictable offence to clandestinely hearken to 442 CHAP. LXII.] NmSANCB. § 798 construction to admit of preservation, in exact terms, for future use. In substance, it is, — That on, &c. at N, in the county of M, the grand jury of said county were duly assembled and holding a secret session in their room in the court house in said N, hearing evidence against persons accused of crimes committed within their jurisdiction, deliberating thereon, and otherwise duly transacting business within their jurisdiction ; whereupon A, &c. did then and there unlawfully and stealthily approach and come near to their said room, wherein and while they were so in such session there, transact- ing and discharging their aforesaid business and duties, with the purpose of him the said A of unlawfully and stealthily listening to and overhearing, and he did then and there unlawfully and stealthily listen to and overhear, what was then and there, in the aforesaid room, done, said, and transacted, and did then and there unlawfully and stealthily, for a long time, to wit, five hours, continue and remain under the eaves and windows and other- wise near to and about said room, eavesdropping and gathering in forbid- den knowledge of the secrets in said room transpiring ; against the peace, &C.1 VIII. Hvil Shows and Exhibitions? § 798. Keeping Room for Obscene Prints. — A form of the in- dictment for exhibiting an obscene painting has already been given.^ A room kept for a purpose of this sort is a species of disorderly house. The allegations under the common law, to follow a precedent neither very old nor very recent, may be, — That A, &c. [being a person of wicked and depraved mind and disposi- tion, and not regarding the common duties of morality and decency, but contriving and wickedly intending, as far as in him lay, to debauch and corrupt the morals as well of youth as of divers other persons, and to raise and create in their minds inordinate and lustful desires*], on, &c. [adding, the discourse of a private family, by which " For expositions of this offence, see, only a private injury would be done, much under the title " Public Shows," Crim. Law, more must it be to obtain, by the same un- I. § 1145-1149 ; Crim. Proced. II. § 794 b, lawful means, the secrets of the jury room. 795, 865. Incidental, Crim. Law, I. § 500, The same salutary principle must cover 504, 761, 1129; II. § 943; Stat. Crimes, both cases, and for a much stronger jeason § 214. And see ante, § 628-631. the latter. If the one be a nuisance, much ^ Ante, § 631. And see ante, § 629, more is the other. The proceedings of note. For a precedent for exhibiting dis- juries, both grand and petit, are so impor- gusting pictures, see Eeg. v. Grey, 4 Post, tant to the life, liberty, and property of the & F. 73. citizen that they cannot be too carefully * Most of the matter in these brackets guarded. ... It cannot be that the law is certainly surplusage, and there is no just has made no provision for the punishment ground to deem otherwise of any part of it. of offences like this." The State v. Pen- I should omit all. Ante, § 44-46, 286, 378, nlngton, 3 Head, 299, 301. 463, 620, 630, and notes to a part of these 1 The State v. Pennington, supra. sections. 443 § 800 SPECIFIC OFFENCES. [BOOK III, if the pleader chooses, ante, § 81-84, and thence continually until the day of the finding of this indictment], [with force and arms^], at, &c. unlaw- fully, wickedly, and scandalously did keep and maintain a certain room in and parcel of a certain house there, for the purpose of exhibiting and exposing to the sight and view of any persons willing and desirous of see- ing the same ^ and paying for their admission into said room, divers lewd, wicked, scandalous, infamous, bawdy, and obscene prints [too filthy and obscene to be more minutely described in these allegations']; and, in said room, then [or during all the time aforesaid, ante, § 84] unlawfully, wickedly, and scandalously [for lucre and gain*] did exhibit and expose the said prints [and cause the same to be exhibited and exposed *] to the sight and view of divers and many people ; [in contempt, &c. in violation of common decency and morality, to the great corruption of youth and increase of lewdness, to the evil and pernicious example of all others^], to the common nuisance of all the people,' against the peace, &c.° § 799. Booth for Indecent Exhibition. — Eeducing to fewer words an English precedent under the common law, and omitting surplusage, we have, — That A, &c. on, &c. at, &c. unlawfully and scandalously did keep and maintain a certain booth and shed wherein to exhibit and show to all per- sons willing to pay the said A for admission therein, and did then and there unlawfully and scandalously exhibit and show therein to many and sundry persons [whose names are to the jurors unknown °] divers wicked, scandalous, infamous, bawdy, and obscene performances, representations, practices, and figures, corrupting to the morals of the public and of youth [and too filthy and obscene to be in decency further described"]; to the common nuisance of all the people [ante, § 775], against the peace, &c." § 800. Public Cruelty to Animal.^^ — Allegations, here slightly modified in the mere expression, have been held good for the common-law nuisance, — That A, &c. on, &c. at, &c. near unto and within full view from certain highways there, whereon people in great numbers ,were constantly pass- 1 Unnecessary. Ante, § 43. ' Not in the form before me, but inserted 2 This allegation does not differ greatly for reasons stated ante, § 775. in its effect from the one introduced, ante, * 2 Chit. Crim. Law, 48. § 782. ' Not in the form before me and prob- 8 This matter is not in the form before ably not necessary, yet some pleaders might me, but some might deem the indictment deem the insertion of this matter prudent, safer with it. Ante, § 626, 631. Ante, § 626, 631. * Not necessary. Ante, § 631, note, and '" Not in tlie form before me. See ante, places there referred to. § 798 and note. ^ Not necessary. Ante, § 139 and note. " Reg. v. Saunders, 1 Q. B. D. 15, 13 * Plainly, none of this matter is neces- Cox C. C. 116. sary. See, among other places, ante, § 48, '^ Crim. Law, I. § 597 ; Stat. Crimes, 621, 622, 631, 755 ; Crim. Proced. I. § 647. § HOO. 444 CHAP. LXII.] NUISANCE. § 802 ing and going, and within full view from great numbers of inhabited dwelling-houses, and within the actual view and sight of great numbers of people, did unlawfully, wantonly, and cruelly, with clubs and stones, beat, strike, and grievously wound and kill a certain cow [the property of one X^], [of the value of, &c.^], thereby disturbing the public peace, and terrifying and otherwise annoying all persons who were then and there either seeing or hearing the same ; to the common nuisance of all the people, against the peace, &c.° § 801. Other Forms — may be drav/n in analogy to the fore- going;* and still others appear in the next sub-title, which is but a continuation of this. IX. Exposure of Person.^ § 802. Form, and how. — Various precedents for the indictment are given in " Criminal Procedure."® It will be there seen that the authorities are not quite uniform as to how much of aver- ment is indispensable under the common law. But the following form, it is believed, will satisfy all views, and be good also on any statute the terms of which it duly covers : — That A, &c. on, &c. at, &c. did, in a certain highway there, whereon great numbers of people were then standing and passing [or, on the roof of a certain building there, within full view from the windows of large numbers of inhabited houses and of other buildings wherein were people congregated ; or, in a certain public omnibus there, in the presence and in sight of great numbers of passengers therein ; or, &c. particularizing, in like manner, any other place which is so far public that the offence may in law be committed in it], lasciviously and scandalously, with intent to cor- rupt the minds and manners of all lookers-on, expose, naked and uncovered, his private member and other of those parts of his body which decency requires to be clothed [or, the body and person of him the said A], to divers and sundry women and other persons then and there witnessing the 1 In the form before me, but evidently enthal. Law Rep. 1 Q. B. 93. Setting off not necessary. Stat. Crimes, § 1120. And fireworks in a public street, 3 Chit. Crim. see the precedents, ante, § 346 et seq. Law, 628. Overseers of poor putting poor 2 Not necessary, because the value is persons into an improper neighborhood immaterial. Ante, § 346, note. and so creating a nuisance, 3 Chit. Crim. 8 United States v. Jackson, 4 Cranch Law, 6.58. C. C. 483. Baiting Bull. — For publicly * For the direct expositions of the law baiting a bull, 3 Chit. Crim. Law, 627; and procedure, see Crim. Law, I. § 1125- 4 Went. PI. 213. As to the meaning of 1134; Crim. Proced. II. § 351-356. Inci- " baiting," Stat. Crimes, § 1109. dental, Crim. Law, I. § 244, 500; Stat * For exhibiting stage plays without Crimes, § 717. license, contrary to a statute, Reg. v. Ros- * dim. Proced. II. § 351-356. 445 § 804 SPECIFIC OFFENCES. [BOOK III. exhibition ; to the common nuisance of all the people [ante, § 775], against the peace, &c.^ § 803. Under Statute. — Some of our statutes are duly covered by briefer forms. Thus, under a provision to punish any one " guilty of an open and notorious act of public indecency, grossly scandalous," it is sufficient to aver, — That A, &c. on, &c. at, &c. was guilty of [or, did commit] an open and notorious act of public indecency, grossly scandalous, by then and there, in the presence of a man and woman, exhibiting and exposing to view his private parts ; to the common nuisance of all the people [ante, § 775], against the peace, &c.^ § 804. Another. — If one is by a statute made punishable " who shall, in any public place, make any uncovered and inde- cent exposure of his or their person," the words "public place" will not alone sufiBce in allegation of the special locality, being too indefinite.^ The averments may be, — That A, &c. on, &c. at, &c. did, in the blacksmith shop of one X, a place open to the public, and into and out of which people were constantly going and passing, make an uncovered and indecent exposure of his person, by then and there openly, indecently, and lasciviously exhibiting the same nude and uncovered to all of divers and sundry persons then assembled there ; to the common nuisance of all the people, against the peace, &c.* 1 For precedents, see Archb. Crim. PI. Pennsylvania. — Commonwealth v. & Ev. 19th ed. 987 ; 2 Chit. Crim. Law, Spratt, 14 Philad. 365. 41 ; Eeg. v. Albert, 5 Q. B. 37 ; Eeg. v. Tennessee. — Britain v. The State, 3 Webb, 1 Den. C. C. 338, 2 Car. & K. 933, Humph. 203. 3 Cox C. C. 1 83 ; Reg. v. Holmes, Dears. Texas. — The State v. Griffin, 43 Texas, 207, 3 Car. & K. 360, 6 Cox C. C. 216; 538. Eeg. V. Elliot, Leigh & C. 103; Reg. v. '' The State v. Gardner, 28 Misso. 90. Thallman, Leigh & C. 326, 9 Cox C. C. I have here preserved the exact substance 388 ; Reg. v. Bunyan, 1 Cox C. C. 74 ; of a form which was held good. But on a Reg. o. Watson, 2 Cox C. C. 376 ; Reg. v. similar statute in another State, where the Orchard, 3 Cox C. C. 248 ; Reg. b. Farrell, question has not been adjudged, I should 9 Cox C. C. 446 ; Reg. v. Harris, 11 Cox recommend the pleader to enlarge the alle- C. C. 659; Eeg. v. Reed, 12 Cox C. C. 1. gations by some setting out of the place Arkansas. — The State v. Hazle, 20 Ark. whereby pnblicity will appear, or of facts 156. giving the transaction notoriety, if so the Indiana. — Andery v. The State, 56 allegations will conform to the truth. Ind. 328 ; Lorimer v. The State, 76 Ind. Still, if the statute is interpreted to require 495. only a private exhibition to one man and Massachusetts. — Commonwealth v. one woman, this form must be held suffi- Haynes, 2 Gray, 72 ; Commonwealth v. dent, unless the averment of their names is Warden, 128 Mass. 52. deemed essential. Missouri. — The State v. Gardner, 28 ' Stat. Crimes, § 902-907. Misso. 90. • Lorimer v. The State, 76 Ind. 495. North Carolina. — The State v. Roper, The text embodies the substance of this 1 Dev. & Bat. 208. precedent, but departs considerably from it 446 CHAP. LXII,] NUISANCE. §805 X. Gaming-house} § 805. Form, and how. — A common gaming-house is a species of disorderly house, so that the allegations under the other sub- titles indicate how they should be under this. Precisely how little of averment will suffice is matter on which judicial opinions seem not quite to harmonize,^ but no one doubts that many of the precedents contain a large proportion of surplusage. It is believed that all will accept the following form as good, whether on the common law, or on any statute the terms whereof it duly covers : — That A, &e. on, &c. [adding the continuando or not as the pleader chooses, ante, § 81-84], at, &c. did unlawfully keep and maintain a com- mon gaming-house, open to the public night and day,' and therein did then and there entice, congregate, and cause to come together great numbers of disorderly and idle persons and youth, playing therein at unlawful games for money and other valuable things, and betting and wasting their sub- stance thereon, and otherwise misbehaving themselves, and leading and luring one another and all other persons to evil ways ; to the common nuisance of all the people [ante, § 775, 777], against the peace, &c.* in words, — perhaps for the better, perliaps not. For a form adjudged good under the Texas statute, see The State v. Griffin, 43 Texas, 538. 1 For the direct expositions of this of- fence, with the pleading, evidence, and practice, see Crim. Law, I. § 1135-1137; Grim. Proced. II. § 487-494. Incidental, Stat. Crimes, § 847, 853, 878, 890-892, 895. And compare with the title Gaming. 2 Crim Proced. II. § 275, 276, 488. 8 Ante, § 782, note. * For other forms and precedents, see Crim. Proced. II. § 488 ; Archb. Crim. PI. & Ev. 10th ed. 637, 19th ed. 962; 3 Chit. Crim. Law, 673-678; 4 "Went. PI. 156; 6 lb. 384 ; Rex y. Milner, Trem. P. C. 241 ; Bex V. Rogier, 1 B. & C. 272 ; Rex v. Tay- lor, 3 B. & C. 502. Arkansas. — The State v. Mathis, 3 Pike, 84. Colorado. — Chase v. People, 2 Col. Ter. 509. Georgia. — Dohme v. The State, 68 Ga. 339. Idaho. — People v. Goldman, 1 Idaho Ter. 714. Indiana. — McAlpin v. The State, 3 Ind. 567 ; Crawford v. The State, 33 Ind. 304; Carr v. The State, 50 Ind. 178; Pad- gett V. The State, 68 Ind. 46. Iowa. — The State v. Cure, 7 Iowa, 479 ; The State v. Middleton, 11 Iowa, 246. Maine. — The State v. Haines, 30 Maine, 65. Maryland. — Wheeler v. The State, 42 Md. 563. Massachusetts. — Commonwealth v. Tilton, 8 Met. 232 ; Commonwealth v. Stahl, 7 Allen, 304. Missouri. — The State v. Palmer, 4 Misso. 453. New Hampshire. — Lord v. The State, 16 N. H. 325; The State v. Leighton, 3 Fost. N. H. 167; The State v. Noyes, 10 Fost. N. H. 279 ; The State v. Prescott, 33 N. H. 212. North Carolina. — The State v. Lang- ford, 3 Ire. 354. United States. — District of Columbia. United States v. Holly, 3 Cranch C. C. 656, 658 ; United States ». Milburn, 4 Cranch C. C. 719; United States u. Dixon, 4 Cranch C. C. 107. 447 § 810 SPECIFIC OFFENCES. [BOOK III. § 806. Abridged and Varied. — Under adjudications in some of our States, and codes of procedure in others, these aver- ments may be safely abridged. And everywhere, if the special facts are different, variations to cover them should be made. Thus, — § 807. Bowling-alley. — Following a form which was adjudged good, and omitting only what all concede to be surplusage, we have, at the common law, — That A, &c. on, &c. at, &c. unlawfully and injuriously did keep and maintain a certain common and disorderly room called a bowling-alley [open to the public night and day ■'], and did then and there unlawfully and injuriously cause, procure, and suffer divers persons, to the jurors unknown, to frequent and come together at said bowling-alley for the purpose of bowling, and then and there to play therein at bowls in the daytime and also in the night-time ; to the common nuisance of all the people [ante, § 775], against the peace, &c.^ § 808. On Statute. — Where a statute makes punishable one who " shall keep any gaming-house or place, and shall suffer any person to play at cards, dice, billiards, or at any bowling-alley, or any game whatever therein for money, hire, gain, or reward," the averments may be, for example, — That A, &c. on, &c. [adding the continuando or not as the pleader chooses, ante, § 81—84]], at, &c. did keep a certain gaming place, and did then and there suffer and permit many idle, disorderly, and dissolute per- sons to play therein at games of cards and other games for money, for other hire, for gain, and for reward ; to the common nuisance of all the people, against the peace, &c.° § 809. Other Statutes. — The statutes are various, and the particular one must be covered. But the pleader will need no further help.* XI. Injurious or Offensive Air.^ § 810. Offence and Indictment. — To render the air injurious to the health or offensive to the senses is not a sort of nuisance ' Not in the form before me. See ante, * See, for example, forms in Common- § 782 and note. wealth ... Tilton, 8 Met. 232 ; McAlpin v. '^ The State v. Haines, 30 Maine, 6.'5. The State, 3 Ind. 567 ; Padgett v. The And compare with the form in Lord v. The State, 68 Ind. 46 ; The State v. Noyes, 10 State, 16 N. H. 325. Fost. N. H. 279. » The State v. Prescott, 33 N. H. 212. « For matter relating more or less di- 448 CHAP. LXII.] NUISANCE. § 811 strictly separable from tlie rest ; but, if one does this, and creates annoying noises, and otherwise disturbs or corrupts the public, all in a single transaction, he evidently commits only one indict- able wrong. ^ The indictment should aver enough of the special locality to show it to be a place where the offence can in law be committed, say what the defendant did there ; and, unless the consequence is obvious to the judicial understanding, state the effect on the air, or how otherwise it endangered or annoyed the public. Thus, — That A, &c. on, &c. at, &c. near unto great numbers of dwelling-houses and divers highways, where great numbers of people were constantly abid- ing and passing, did, &c. [say what], whereby then and thence continually until the day of the finding of this indictment the air there and for a great distance around became and was noxious, injurious, and offensive to all persons surrounded by it ; to the common nuisance of all the people [ante, § 775, 777], against the peace, &c.^ § 811. Necessary House. — The allegations may be, — That A, &c. on, &c. at, &c. near unto [or, within fifty feet of] a certain public and common highway there, whereon people were constantly passing and going, and near unto divers inhabited dwelling-houses there, did unlaw- fully erect and maintain a certain building called a necessary house [or, did continue, &o. theretofore erected, &c.], for the use of many and divers persons for necessary purposes, and thence continually until the day of the finding of this indictment did continue the same, and did there during all the aforesaid time keep the same and suffer it to remain in a filthy condition ; whereby the air in the said public highway and in the said dwelling-houses and for a great distance round and about the said necessary house became, by reason of offensive and noxious odors emitted therefrom, greatly corrupted, offensive to the senses, and deleterious to the health, and so continued to rectly to this offence, see, among other Maine. — The State w.Payson, 37 Maine, places, Crim. Law, I. § 489-492, 531, 1 138, 361. 1141, 1143; II. § 1273; Crim. Proced. II. Massachusetts. — Commonwealth v. § 877 a. Sweeney, 131 Mass. 579. 1 Ante, § 776, 780. New York. — Munson v. People, 5 Par- '■i For forms and precedents, see 3 Chit, ker C. C. 16. Crim. Law, 622, 629, 643,647,651-656; Pennsyluania. — Commonwealth u. Van 4 Went. PI. 213-219, 224, 225, 353 ; 6 Cox Sickle, Brightly, 69. C. C. App. 76, 77 ; Kex v. Vantandillo, 4 South Carolina. — The State v. Purse, 4 M. & S. 73 ; Rex u. Burnett, 4 M. & S. McCord, 472 ; The State v. Rankin, 3 S. C. 272 ; Rex v. Pedly, I A. & E. 822 ; Rex 438. u. Henson, Dears. 24. Tennessee. — Cornell v. The State, 7 Jowa. — The State v. Kaster, 35 Iowa, Baxter, 520. 221 ; The State v. Close, 35 Iowa, 570. Virginia. — Stephen v. Commonwealth, Kentucky. — Barring v. Commonwealth, 2 Leigh, 759. 2 Duv. 95. 29 449 I 814 SPECIFIC OFFENCES. [BOOK IH. be and was during all the time aforesaid ; to the common nnisance of all the people, against the peace, &c.* § 812. Piggery. — It is good to allege, — That A, &c. on, &c. at, &c. near to a common highway there, whereon people were continually passing, and near to the dwelling-houses of divers people, did set up and erect, and thence continually to the day of the find- ing of this indictment did continue, a certain pen and enclosure wherein during all said time he did keep large numbers of hogs, and oiFal, and filth, and slops, and other noxious and offensive things for said hogs to feed upon and eat ; by reason whereof noxious, vile, offensive, and deleterious odors were created and sent forth from said pen and enclosure, rendering the air near to and for a long distance from the same offensive and injuri- ous to all persons there inhabiting, passing, and being ; to the common nuisance of all the people, against the peace, &c.^ § 813. Other Filth. — On the same principles as the last two forms are constructed the allegations for making the air foul by collecting any other filth.^ § 814. SmaU-pox. — The indictment for endangering the pub- lic health by taking into the streets a person having the small- pox may aver, — That on, &c. at, &c. one X was infected, ill, and sick with a certain con- tagious and dangerous disease and infection called the small-pox, liable to be communicated through the air and otherwise to other persons ; where- upon A, &c. well knowing these premises, did then and there unlawfully take and carry the said X into, in, and along a certain highway there whereon were multitudes of people constantly going and passing, and near to dwelling-houses in large numbers wherein were multitudes of people abiding, and among multitudes of people, to the great and manifest danger of infecting, making sick, and destroying the lives of all of said persons, and spreading the aforesaid infection and disease through the entire com- munity ; to the common nuisance of all the people, against the peace, &c.* ^ I have enlarged this form a little The State, 7 Baxter, 520 ; Commonwealtn beyond the precedents in some particulars, v. Sweeney, 131 Mass. 579 ; 4 Went. Fi. and slightly varied it in others, to free it 215-219. By putting night-soil in the from what is too obviously surplusage, and street, 3 Chit. Grim. Law, 622. Killing render it more certainly adequate. . See, for cattle and leaving their skins or carcasses precedents, 3 Chit. Crim. Law, 651 ; 4 to corrupt the air, 3 Chit. Crim. Law, 629, Went. PI. 225 ; Hex v. Pedly, 1 A. & E. 647. Keeping pack of hounds and placing '822 ; The State v. Purse, 4 McCord, 472. carrion near the highway, 3 Chit. Crim. 2 For precedents, see The State v. Pay- Law, 643 ; 4 Went. PI. 213. Deleteri- son, 37 Maine, 361 ; The State v. Raster, ous smoke and vapors, 6 Cox C. C. App. 35 Iowa, 221 ; 3 Chit. Crim. Law, 647; 76. Commonwealth v. Van Sickle, Brightly, * The precedents overflow with obvi- '69. ously useless words while omitting some- ' For example, see forms in Cornell v. thing of what is perhaps essential. So the 460 CHAP. LXII.] NUISANCE. § 81T § 815. Glandered Horse. — Similar to the foregoing is the in- dictment for taking into the public ways a horse affected with the glanders or other disease communicable to man. No separate form for it is required.^ § 816. stagnant Water. — By a statute, " corrupting or render- ing unwholesome or impure the waters of any river, stream, or pond " was declared to be a nuisance. Thereon an indictment substantially in the , following terms was held to be good, and it is believed to satisfy also the common law : — That A, &c. on, &c. at, &c. being possessed of a certain mill-dam, mill- pond, and mill, with their appurtenances, situate near and adjacent to a common highway and the dwelling-houses of divers persons, did then and thence continually until the day of the finding of this indictment [ante, § 81-84] there unlawfully and injuriously cause and permit the waters of said mill-pond to overflow the adjacent lands, as well the lands of other persons as his own ; by means whereof the water of said mill-pond was rendered impure, corrupted, and unwholesome, and the lands overflowed as aforesaid were rendered and kept marshy and filled with noxious weeds and putrid vegetation, and corrupted, impure, and unwholesome water, whereby the air in and along said common highway, and in and around said dwelling-houses, and over and' for a long distance around said mill- pond, became and was corrupted, infected, offensive, and unwholesome ; to the common nuisance of all the people, against the peace, &c.^ XII. Liquor and Tippling Shops. ^ § 817. At Common Law. — A tippling-shop is indictable at the common law only when and because it is a disorderly house.* And so the forms under the sub-titles " Bawdy-house," " Disor- derly House," and " Gaming-house " are serviceable under this sub-title. No good would come from setting down here separate aboveformdepartsconsiderably from them. For like forms, see Stephen v. Common- See, for precedents, 2 Chit. Crim. Law, wealth, 2 Leigh, 759 ; Munson v. People, 553 ; 4 Went. PI. 353 ; Rex u. Van tan- 5 Parker C. C. 16 ; Barring v. Common- dillo, 4 M. & S. 73 ; Rex v. Burnett, 4 M. wealth, 2 Dnv. 95. Damming stream, and & S. 272. Against an apothecary for so making the air unwholesome. The State keeping a common inoculating house near v. Eankin, 3 S. C. 438. the church in a town, 3 Chit. Crim. Law, * For the direct expositions of this of- 656. Against a surgeon for causing chil- fence, with the pleading, evidence, and dren to be brought through public streets, practice, see Crim. Law, I. § 1113-11 IS; infected with contagious disorder, 2 Chit. Stat. Crimes, § 1064-1070. Incidental, Crim. Law, 555. Crim. Law, I. § 318, 504, 505 ; Stat. 1 For precedents, see 6 Cox C. C. App. Crimes, § 213, 984, 997. 1027. 77 ; Reg. v. Henson, Dears. 24. * Crim. Law, I. § 1113 ; Stat. Crimes, 2 The State v. Close, 35 Iowa, 570. § 984, 1064. 451 § 820 SPECIFIC OFFENCES. [BOOK m, forms, which, in substance, would be mere repetitions of matter from the other sub-titles.^ Still, — § 818. As Repetitions of Offence. — Under the principle that it is an indictable nuisance at the common law to keep a place for the common commission and repetition of pettj' offences,^ if a statute has made the several unlicensed sales of liquor penal or punishable, it is believed to be an indictable common-law nuisance to keep a house or shop for such common selling. The author has before him no form for the allegations, but suggests the following: — That A, &c. on, &c. [as at ante, § 80, or, adding the continnando as at ante, § 81-84, if the pleader chooses], at, &c. did unlawfully keep and maintain a common disorderly house [or shop, &c.j, open to the public night and day [ante, § 782], wherein to commonly sell, and did commonly sell therein, intoxicating liquors to all persons willing to purchase the same, he the said A not having any authority or license therefor [or, &c. negativing the license as directed ante, § 642 and note, 649], and did then [or during all the time aforesaid] and there cause to come together and remain in said house [or shop] night and day great numbers of disor- derly persons, buying of the said A intoxicating liquors, drinking the same there, and carrying the same away, in common violation of the laws ; to the common nuisance of all the people, against the peace, &c § 819. Statute declaring Nuisance — (Lotteries). — There is a third principle, which, as judicially observed, " has prevailed and been acted on without qualification, that, when the legislature declares an act to be a public nuisance, the person doing the act is indictable." ^ Therefore, after a statute was made pronouncing lotteries " common and public nuisances," * allegations adjudged good were, in substance, — That A, &c. on, &c. and thence continually until the day of the finding of this indictment [ante, § 81-84], at, &c. did unlawfully set up, conduct, and maintain a certain lottery not authorized by law, wherein were prizes awarded to the subscribers thereto for whom certain numbers were drawn ; to the common nuisance of all the people [ante, § 775], against the peace, &c.= § 820. Common Statute and Form thereon. — The statutes cre- ating the offence of liquor nuisance are in differing terms.^ A I And see the form, and note to it, in C. C. 303, 316, 8 Cox C. C. 375. Refers to n Chit. Crim. Law, 671. Also, the prece- Rex v. Gregory, 5 B' & Ad. 555. dent in Cable v. The State, 8 Blackf. 531. MO & 11 Will. 3, c. 17, § 1. "^ Trim. Law, I. § 1119-1121. 6 Reg. v. Crawshaw, snpra. ' Erie, C. J. in Reg. v. Crawshaw, Bell « Stat. Crimes, § 1064-1070. 452 CHAP. LXII.] NUISANCE. § 820 representative one is, that " all buildings, places, or tenements resorted to for prostitution, lewdness, or illegal gaming, or used for the illegal keeping or sale of intoxicating liquor, shall be deemed common nuisances," punishable in a way pointed out.^ The allegations on this may be, — That A, &c. on, &c. and thence continually until the day of the finding of this indictment [ante, § 81-84], at, &c. did unlawfully keep and main- tain a certain building'' [or place, or tenement'] there during all said time^ used for the illegal keeping and illegal sale of intoxicating liquor; to the common nuisance of all the people [ante, § 775], against the peace, &c.' 1 Mass. Pub. Stats, u. 101, § 6, 7. 2 The expression here, in the forms in Commonwealth v. Kelly, 12 Gray, 175, and various other cases , is " a certain com- mon nuisance, to wit, a building." This circumlocniion is palpably needless. The statute declares the building to be a nuisance ; hence, in matter of law, it is such. But no matter of law need be al- leged. Ante, § 734 and note and places there referred to. " I see no great objection to saying here, if the pleader chooses, " building, place, and tenement ; " for a building is a place, and so is a tenement, and probably a tene- ment is a building. But If the proofs should disclose simply a stand in the outer air, could there be a conviction on this form of the allegation 1 Ante, § 666, note. * The repetition of time and place here has been adjudged unnecessary. The State V. Hopkins, 5 R. I. 53 ; Commonwealtli v. Langley, 14 Gray, 21. I often, in these forms, make this repetition where I do not deem it absolutely essential, as a sugges- tion to the pleader for avoiding a possible question at the trial or afterward. 5 Commonwealth v. Kelly, supra, and other cases cited under " Massachusetts " in this note. For precedents under the various statutes, see — Connecticut. — The State v. Thomas, 47 Conn. 546. Georgia. — Warner v. The State, 51 Ga. 426. Indiana. — Cable v. The State, 8 Blackf. 531 ; The State v. Zimmerman, 2 Ind. 565 ; Huber v. The State, 25 Ind. 175 ; Farrell V. The State, 38 Ind. 136, 137 ; Leary v. The State, 39 Ind. 544 ; Joseph .;. The State, 42 Ind. 370 ; McLaughlin v. The State, 45 Ind. 338 ; Davis v. The State, 52 Ind. 488; Collins v. The State, 58 Ind. 5; Douglass V. The State, 72 Ind. 385. Iowa. — The State v. Schilling, 14 Iowa, 455 ; Tlie State v. Baughman, 20 Iowa, 497 ; The State v. Freeman, 27 Iowa, 333 ; The State v. Harris, 27 Iowa, 429 ; The State V. Stapp, 29 Iowa, 551 ; The State V. Allen, 32 Iowa, 248 ; The State v. Jor- dan, 39 Iowa, 387 ; The State v. Reining- haus,'43 Iowa, 149. Kansas. — The State v. Tcissedre, 30 Kan. 476, 480 ; The State v. Nickerson, 30 Kan. 545, 547. Kentucky. — Morrison v. Common- wealth, 7 Dana, 218 ; Overshiner v. Com- monwealth, 2 B. Monr. 344. Maine. — The State v. Collins, 48 Maine, 217 ; The State w. Ruby, 68 Maine, 543. Massachusetts. — Commonwealth o. Kimball,. 7 Gray, 328; Commonwealth u. Hoye, 9 Gray, 292 ; Commonwealth a. Buxton, 10 Gray, 9 ; Commonwealth v. Skelley, 10 Gray, 464 ; Commonwealth v. Kelly, 12 Gray, 175 ; Commonwealth o. Quin, 12 Gray, 178 ; Commonwealth v. Barnes, 13 Gray, 26 ; Commonwealth u. Howe, 13 Gray, 26 ; Commonwealth v. Langley, 14 Gray, 21 ; Commonwealth v. Hill, 14 Gray, 24 ; Commonwealth v. Tay- lor, 14 Gray, 26 ; Commonwealth v. Dono- van, 16 Gray, 18 ; Commonwealth v. Welsh, 1 Allen, 1 ; Commonwealth v. Gal- lagher, 1 Allen, 592 ; Commonwealth v. Walton, 11 Allen, 238 ; Commonwealth i'. Greenen, 11 Allen, 241 ; Commonwealth V. Blake, 12 Allen, 188 ; Commonwealth v. Wright, 12 Allen, 190 ; Commonwealth v. Smith, 102 Mass. 144; Commonwealth v. Bennett, 108 Mass. 27 ; Commonwealth r. Martin, 108 Mass. 29, note ; Common- 453 § 823 SPECIFIC OFFENCES. [BOOK HI. § 821. Adding other Elements. — The statute just quoted is very suggestive of the propriety of adding, in the allegations, other elements of nuisance to this one, if so are the facts.^ Thus, — That A, &c. on, &c. and thence continually until the day of the finding of this indictment, at, &c. did unlawfully keep and maintain a certain building [see last form] ^ used as a house of ill-fame resorted to for prosti- tution and lewdness, and for illegal gamiog, and used for the illegal sale and illegal keeping of intoxicating liquor ; " to the common nuisance of all the people, against the peace, &c.* § 822. Another. — Under the Iowa provisions it has been adjudged good simply to allege, — That A, &c. on, &c. at, &c. " did keep a certain house in which he then and there kept for sale and sold intoxicating liquors " [adding the proper conclusion] .° XIII. Mahing Self a Nuisance. § 823. Elsewhere. — Nearly all that would be appropriate here is given in other connections ; as, under the title " Drunken- ness," the nuisance of being a common drunkard ; ^ under " Adul- tery," &c. open lewdness and connected offences.^ Further on, the title " Vagrancy," &c. will include various personal nuisances. And "Barratry," " Common Scold," "Eavesdropping," and "Ex- posure of Person " constitute separate sub-titles in this chapter. wealth V. Dann, 111 Mass. 425,426; Com- van, 16 Gray, 18, proceeds here: "Where- monwealth v. Shea, 115 Mass. 102 ; Com- by, and by force of the statute in such case monwealth v. Campbell,! 16 Mass. 32 ; Com- made and provided, the said building, place, monwealth v. Mclvor, 117Mass. 118; Com- and tenement, then and there kept and monwealth y. Costello, 118 Mass. 454; Com- maintained by the said A, and then and monwealth v. Ballou, 124 Mass. 26 ; Com- there used and resorted to as aforesaid, monwealth u. Kahlmeyer, 124 Mass. 322 ; was then and there a common nuisance." Commonwealth v. Fraher, 126 Mass. 56; Needless. Ante, § 820, note. Commonwealth u. Ronan, 126 Mass. 59; * Commonwealth v. Donovan, supra; Commonwealth v. Roberts, 132 Mass. 267. Commonwealth v. Langley, 14 Gray, 21 ; Missouri. — Ncales v. The State, 10 Commonwealth b. Hill, 14 Gray, 24 ; Com- Misso. 498. monwealth «. Taylor, 14 Gray 26; Com- Rhode Island. — The State v. Hopkins, monwealth t. Kimball, 7 Gray, 328; The 5 R. I. 53 ; Plastiidgo v. The State, 6 R. I. State v. Tracey, 12 R. I. 216. 76 ; The State v. Tracey, 12 R. I. 216. ^ The State v. Jordan, 39 Iowa, 387. Vei-mont. — The State v. Paige, 50 Vt. And compare with the somewhat fuller al- 445 ; The State v. Haley, 52 Vt. 476. legations in The State v. Freeman, 27 Iowa, 1 Ante, § 776 and note, 780. 333 ; The State v. Allen, 32 Iowa, 248 ; "^ Not necessary to repeat time and place The State v. Baughman, 20 Iowa, 497. here. Ante, § 820 and note. « Ante, § 373-376. 2 The form in Commonwealth ». Dono- ' Ante, § 156-158. 454 CHAP. LXII.] NTTISANCE, § 828 § 824. Prostitute. — Not at common law,i but under some stat- utes, it is punishable criminally to be a common prostitute.^ § 825. Railer and Brawler. — Under a statute making it pun- ishable to be a " common railer and brawler," it was adjudged adequate to allege, in general terms, — That A, &c. on, &c. [^adding the continuando or not, as the pleader chooses, ante, § 81-84], at, &c. was a common railer and brawler [in evil example to others in like case to offend ^J ; to the common nuisance, &c. [ante, § 775], against the peace, &c.* § 826. Brawl and Tumult. — A statute forbidding any person to " make any brawls or tumults in any street, lane, alley, or public place," appears to be sufficiently covered by the alle- gations, — That A, &c. on, &c. at, &c. did make a great noise, brawl, and tumult in a certain public street there [concluding as above].* XIV. Noxious and Offensive Trades and Business? § 827. Connected with other Sub-titles. — The nuisance under this sub-title consists of corrupting the air, creating annoying noises, or presenting to the sight what should not be publicly exhibited, or all combined ; so that, neither in its nature nor in the allegations, is there much reason, apart from the custom of the books, for giving it a separate consideration. § 828. Form in General. — The allegations may be, — That A, &c. on, &c. [adding the continuando or not, as the pleader chooses], at, &c. [adding so much in particularization of the locality as will show it to be public, to the extent of rendering the commission of the offence there legally possible], did unlawfully, &c. [setting out the defend- 1 Crim. Law, I. § 1085. The question under this statute seems not 2 For a form for the allegations, see quite the same as that under the one quoted Delano v. The State, 66 Ind. 348. And in the last section. And the form in the for n, similar offence, Commonwealth v. text adds the words " a great noise " to the Norton, 13 Allen, 550. As to the oflfence, statutory expression. It is, at least, safe consult Stat. Crimes, § 641, 646, 652. for the pleader to expand the allegations 8 In the form before me, but not neces- here beyond the words in the statute, sarv. Ante, § 48. ° For the direct elucidations of this of- * Stratton j/. Commonwealth, 10 Met. fence, with the pleading, evidence, and prac- 217. As to the sufficiency of this general tice, see Crim. Law, I. § 1138-1144 ; Crim. form of allegation, see Crim. Proced. I. Proced. II. § 875-877. Incidental, Crim. § 493, 494 ; II. § 200. Law, I. § 490, 491, 531 ; Stat. Crimes, S The State v. Perkins, 42 N. H. 464. § 20, 156, note, 208, note. 455 § 829 SPECIFIC OFFENCES. [BOOK III. ant's acts, and their effect in creating the particular nuisance] ; to the com- mon nuisance of all the people [ante, § 775], against the peace, &c. [ante, § 777].i § 829. Common Form — (Tripe boiling, &c.). — A form from the current English books, by slight variations adapted to our use, is, — That A, &c. on, &c. [as in the last form], at, &c. near unto divers com- mon highways, and near unto the dwelling-houses of divers peopl% there situate and being, unlawfully and injuriously did make, erect, and set up [and did cause and procure to be made, erected, and set up ^] [or, did, after the erecting, making, and setting up by persons to the jurors unknown, unlawfully and injuriously continue '] a certain furnace and boiler, for the purpose of boiling tripe and other entrails and offal of beasts ; and did there, during all the time aforesaid [or, if the continuando is not used, and perhaps if it is, ante, § 84, did then and there] unlawfully and injuriously boil, in the said boiler, divers large quantities of tripe and other entrails and offal of beasts ; by reason of which said premises, divers noisome, offen- sive, and unwholesome smokes, smells, and stenches, during the time afore- said, were thence emitted and issued, so that the air then and there was and yet is greatly filled and impregnated with the said smokes, smells, and stenches, and was and is rendered and become corrupted, offensive, uncom- fortable, and unwholesome ; to the common nuisance of all the people [ante, § 775], against the peace, &c.^ ^ For forms and precedents, see Archb. Wisconsin. — Taylor v. The State, 35 Crim. PI. & Ev. 19th ed. 955 ; 3 Chit. Wis. 298. Crim. Law, 629, 647-657, 663, 664, 721 ; " Not necessary. Ante, § 139 and note 6 Went. PI. 417 ; 6 Cox C. C. App. 76, and places there referred to, 620, 621, 77 ; Rex v. Brooks, Trem. P. C. 195 ; Rex 630. a. Cole, Trem. P. C. 198; Rex v. White, ' In the form before me, matter the 1 Bur. 333; Rex v. Dewsnap, 16 East, 194; equivalent of this in brackets is introduced Reg. V. Mutters, Leigh & C. 491, 10 Cox into a separate count. I can discover no C. C. 6. possible advantage in two counts. Cer- Indiana. — Ellis v. The State, 7 Blackf. tainly both the erection and the continu- 534 ; Moses v. The State, 58 Ind. 185. ance of a nuisance may be charged in one. Maine. — The State v. Hart, 34 Maine, Crim. Proced. II. § 866. And proof of 36. either will justify a conviction. Nor, as a Maryland. — Clayton v. The State, 60 continuance constitutes a complete offence, Md. 272. can any allusion to the erection, or by Massachusetts. — Commonwealth v. whom, be necessary where it only is to be Brown, 13 Met. 365; Commonwealth v. proved. If, then, the pleader doubts how Rumford Chemical Works, 16 Gray, 2.11. the evidence will be, he may simply say, in iVcro Hampshire. — The State v. Wil- his one count, — son, 43 N. H. 415. t.., , ,• „ . . New .Jersey. - The State v. Society for ,. ^"J ""'''^/""y «'-^'=*. ™«'"'^'». ""d ™°- TT r 1 n* c ,„TT- ,.„. v„^ tmue to use, &c. [or, ni any other appropriate Useful Manufactures, 13 Vroom, 504, 505. ^ords to this effect]. New York. — People v. Cunningham, 1 Denio, 524 ; Taylor v. People, 6 Parker ■* Archb. Crim. PI. &, Ev. 10th ed. 633, C. C. 347. . 634, 19th ed. 955. 456 CHAP. LXII.] NUISANCE. § 832 § 830. On Statute. — Variations, where the indictment is on a statute, may be permitted or required, so as to cover the statu- tory terms. Thus, on a provision to punish one who " shall erect, maintain, or keep a slaughter-house, or use any building heretofore erected, for the purposes of a slaughter-house, within the limits of any village of not less than one hundred inhabitants, or within one-eighth of one mile from any dwelling-house or build- ing used as a place of business," the averments may be, — That A, &c. on, &c. at, &o. did unlawfully use for the purpose of a slaughter-house a certain building theretofore erected, and then and there being, within one-eighth of one mile from certain and sundry dwelling- houses then used and occupied as such ; and in said building did then and there slaughter [great numbers of beef-cattle, hogs, sheep, and other ani- mals ^] ; to the, &c. [concluding as in other cases].'^ § 831. Other Forms — may be readily constructed, in analogy to the foregoing, to cover the facts of particular cases, or special statutory terms.^ XV. Offensive and Hurtful Noises.^ § 832. Howling Dogs. — Adapting to our use an English com- mon-law form, we have, — That A, &c. on, &c. [adding, if the pleader chooses, the continuando, ante, § 81-84], at, &c. adjoining and near unto divers common highways there, whereon were many people constantly being and passing, and near unto many dwelling-houses inhabited and occupied by multitudes of people, did unlawfully keep and cause to remain night and day great numbers of 1 Not in the form before me, but proba- Boiling, — various sorts of offensive, bly most pleaders would choose to add 3 Chit. Crim. Law, 649, 652 ; 6 Went. PL something of this sort. 417 ; Eex v. White, I Bur. 333; Common- 2 Taylor v. The State, 35 Wis. 298, wealth v. Brown, 13 Met. 365. considerably changed in the expression. Quarrying Stone — near highway and ' Slaughter-house. — 3 Chit. Crim. dwelling-houses. Reg. o. Mutters, Leigh Law, 647, 648, 721 ; Taylor u. People, 6 & C. 491, 10 Cox C. C. 6. Parker C. C. 347 ; The State v. Wilson, 43 Glass-house. — Rex v. Brooks, Trem. N. H. 415; Moses v. The State, 58 Ind. P. C. 195. 185. Brazier. — 3 Chit. Crim. Law, 664. Soap Manufactory. — 3 Chit. Crim. Coppersmith's Shop. — 3 Chit. Crim. Law, 655 ; Rex v. Cole, Trem. P. C. 198. Law, 663. Bone Factory. — Clayton v. The State, Making Hartshorn. — 3 Chit. Crim. 60 Md. 272. Law, 653. DistiUery. — People v. Cunningham, 1 *^ Crim. Law, I. § 531, .537, 1078, 1115, Denio, 524. 1136, 1138 ; IL § 1273 ; Crim. Proced. IL Steam-engine. — Eex v. Dewsnap, 16 § 280, 874 h. East, 194. 457 § 835 SPECIFIC OFFENCES. [BOOK III. dogs and bitches accustomed, as he the said A there during all said time well knew,^ to making great and oflfensive howlings and other disturbing noises ; and there, during all said time, in the night as well as in the day, and during the natural and proper hours for rest and sleep, did cause and permit the said dogs and bitches to make and keep up, and they did make and keep up, to the disturbance of all people there and for a long distance around being and dwelling, constant and continued howlings, loud yells, mouns, and other offensive and disturbing noises ; to the common nuisance of all the people, against the peace, &c.^ § 833. Defendant's own Noises. — Or the allegations at the common law may be, — That A, &c. on, &c. at, &c. did, in and near a certain common highway there, and near to divers dwelling-houses wherein were people abiding, utter, to the disturbance of multitudes of persons, loud exclamations and outcries, and thereby did then and there draw together great numbers of people ; to the common nuisance of all the people, against the peace, &c.° XVI. Unwholesome Food and Water.^ § 834. Distinguished. — What we are considering here is the nuisance. It should not be confounded with the offence treated of in a preceding chapter.^ § 835. Forms — for this offence are easily constructed on the foregoing models.® This chapter is already so long that its fur- ther extension is not deemed advisable. 1 Not in the form before me, and per- State v. Langford, 3 Hawks, 381 ; ante, haps not necessary, yet safer. Ante, § 789. § 707. 2 3 Chit. Crim. Law, 643, 647. * Crim. Law, I. § 491, 558 ; Crim. Pro- 8 Commonwealth v. Harris, 101 Mass. ced. I. § 524, note ; II. § 868, 878. 29; Commonwealth v. Oaks, 113 Mass. 6 Ante, § 761 et seq. 8 ; Commonwealth v. Smith, 6 Cush. 80 ; ^ Rendering water unfit to drink, 6 Cox The State v. Baldwin, 1 Dev. & Bat. 195. C. C. App. 76. Corrupting the waters of And compare 3 Chit. Crim. Law, 1136 i ; a rirer by conveying refuse gas into it, Kcx The State v. Riggs, 22 Vt. 321 ; The v. Medley, 6 Car. & P. 292. For OATH, UNLAWFUL, see post, § 853. OBSCENE LIBEL, see Libel and Slandek. 458 CHAP. LXIII.j OBSTE0CTING JUSTICE, ETC. § 838 CHAPTER LXIII. OBSTEtrCTING JUSTICE AND GOVERNMENT.^ § 835, 837. Introduction. 838-843. Injuring, Resisting, &c. Official Person. 844-847. Refusing to assist Officer. 848, 849. Usurping or Assuming Office. 850,851. Embracery. 852-854. Other Obstructions. § 836. Elsewhere. — A large part of what would be appropriate here is placed under more specific titles ; as, " Bribery," " Cham- perty and Maintenance," " Concealment of Birth," " Contempt of Court," " Duelling," " Election OfFences," " Forcible Entry," " Fraudulent Conveyance," " Marriage," " Neutrality Laws," " Pension Laws," " Post-office Offences," " Prison Breach," &c., "Refusing Office," "Sedition," "Tax and other Revenue Laws," " Treason." § 837. Here, and how divided. — We shall in this chapter consider, I. Injuring, Resisting, or Hindering Official Person ; n. Refusing to assist Officer ; III. Usurping or Assuming Of- fice ; IV. Embracery ; V. Other Obstructions. I. Injuring, Resisting, or Hindering Official Person. § 838. Formula for Indictment. — How, in general, the alle- gations within this sub-title should be, is explained elsewhere.^ With due particularization, a prima facie offence should be made to appear ; and, if the indictment is on a statute, its terms should 1 For the direct expositions of this of- Law, I. § 340, 587, 688, 695, 697, 868 ; fence,wilhthepleadlng, evidence, and prac- II. § 39, 48-51, 222-224, 244-248, 252, tice, see Grim. Law, I. § 450-480 (extending 253, 255, 265-267, 699 ; Grim. Proced. I. OTcrawider field than this chapter); IL § 160-162, 185, 193, 195, 198, 202-205, § 384-389, 1009-1013; Grim. Proced. II. 647; Stat. Grimes, § 216, 223. § 344-347, 879-898. Incidental, Grim. ^ Grim. Proced. II. § 881-890. 459 § 839 SPECIFIC OFFENCES. [book III. be covered. Hence the form will considerably vary with the case. The order of the allegations is immaterial. In substance, and in a general way, they may be, — That on, &c. at, &c. [ante, § 80] X, being then and there a justice of the peace in and for said county ![_or, one of the constables of said town, or, &c. mentioning any other office in the like brief way *] , was, &c. [saying, with due particularity, what official act he was performing, an averment not in every sort of case formally required ^] ; whereupon A, &c. [ante, § 74-77], well knowing the premises [an allegation, also, not always neces- sary '], did, &c. [setting out, with proper particularization, the wrongful act] ; against the peace, &c. [ante, § 65-69].* § 839. Assault and Battery. — An assault and battery on an officer, or a simple assault on him, is an aggravated assault or assault and battery within explanations in a previous chapter.^ The indictment must cover the statute, and it need not ordinarily 1 Crim. Proced. II. § 884. 2 lb. § 885, 886. 8 lb. § 887. * For forms and precedents, see Archb. Crim. PI. & Ev. 19th ed. 742, 746-748 ; 2 Chit. Crim. Law, 99, 126, 127, 137, 144- 148, 155, 157, 201-215 ; 3 lb. 832, 916; 4 Went. PI. 63, 310, 311, 314, 375-405, 428, 437 ; 6 Cox C. C. App. 29-40 ; Rex V. Lovelace, Trem. P. C. 273 ; Rex v. Bra- dy, 1 B. & P. 187, 2 Leach, 4th ed. 803; Kex a. Osmer, 5 East, 304 ; Rex v. Goi'- don, 1 Leach, 4th ed. 515 ; Rex r. White, Russ. & Ry. 99 ; Kex v. Ford, Russ. & Ry. 329 ; Rex v. Hood, 1 Moody, 281 ; Rex v. Shadbolt, 5 Car. & P. 504. Alabama. — Heath u. The State/ 36 Ala. 273 ; Murphy v. The State, 55 Ala. 252 ; Jones v. The State, 60 Ala. 99. Arkansas. — Oliver v. The State, 17 Ark. 508. Connecticut. — The State v. Moore, 39 Conn. 244. Indiana. — The State v. Tuell, 6 Blackf. 344. Iowa. — The State v. Freeman, 8 Iowa, 428. Maine. — The State v. Roberts, 26 Maine, 263 ; The State v. Dearborn, 54 Maine, 442. Massachusetts. — Commonwealth o. Kennard, 8 Pick. 133 ; Commonwealth v. Hastings, 9 Met. 259; Commonwealth v. Kirby, 2 Cush. 577, 579 ; Commonwealth ». Tobin, 108 Mass. 426; Commonwealth V. Ducey, 126 Mass. 269. 460 Missouri. — The State v. Henderson, 15 Misso. 486. New Hampshire. — The State v. Copp, 15 N. H. 212 ; The State v. Fifield, 18 N. H. 34 ; The State v. Richardson, 38 N. H. 208 ; The State v. Webster, 39 N. H. 96 ; The State v. Beasom, 40 N. H. 367 ; The State v. Flagg, 50 N. H. 321 ; The State V. Roberts, 52 N. H. 492. New York. — People v. Holcomb, 3 Par- ker C. C. 656. Pennsylvania. — Finn v. Common- wealth, 6 Barr, 460. Rhode Island. — The State v. Maloncy, 12 R. L 251. South Carolina. — The State v. Hailey, 2 Strob. 73. Tennessee. — The State v. Maynard, 3 Baxter, 348. Texas. — The State v. Bradley, 34 Texas, 95 ; The State v. Coffey, 41 Texas, 46 ; Horan r. The State, 7 Texas Ap 183, 184. Vermont. — The State v. Lovett, 3 Vt. 110 ; The State c. Miller, 12 Vt. 437 ; The State V. Hooker, 17 Vt. 658 ; The State v. Burt, 25 Vt. 373 ; The State v. Carpenter, 54 Vt. 551, 552. Wisconsin. — Rountree t'. United States, 1 Pin. 59 ; The State v. Welch, 37 Wis. 196. United States. — United States v. Bach- elder, 2 Gallis. 15 ; United States v. Fears, 3 Woods, 510 ; United States v. Goure, 4 Cranch C. C. 488. 6 Ante, § 211-226. CHAP. LXIII.] OBSTRUCTING JUSTICE, ETC. § 840 do more ; as, for example, if by its terms the offence can be com- mitted only when the officer is in the discharge of his duty, the fact that he was so must be alleged, otherwise it need not be. And the other statutory terms must be heeded in the allegations. For example, — That A, &c. on, &c. at, &c. did make an assault on X, who was then and there one of the constables of the said town of N, while he the said X was in the lawful exercise and discharge of the duties of his said office [or, possibly some opinions will require it to be averred what X was doing, and so distinctly as to make his authority appear], knowing the said X then and there to be such constable so in the lawful exercise and discharge of his office and duties ; and him the said X being such officer and so as aforesaid employed, did then and there beat, bruise, wound, and ill-treat ; against the peace, &c.* § 840. Resisting and Obstructing Officer. — What is said in the last section applies equally to the subject of this. Moreover, as to this, the precedents in the books differ, the decisions upon the requirements under the common-law rules are not harmonious, and the statutes simplifying those rules differ in our respective States. The indictment is commonly or always upon a statute ; and, if the statutory terms are covered in a reasonable particu- larization of the facts of the individual instance, the strictest requirements of the common law would seem, in principle, to be satisfied. For example, — That A, &c. on, &c. at N in the county of M, while X, a deputy sheriff of said county, was at said N lawfully and by virtue of his said office pro- ceeding under an execution in due form to levy on and seize two horses the property of the said A, did unlawfully collect together a body of ser- vants and men, to the number of twelve and more, and by the superior 1 Very many of the forms and precedents Law, 127, 146; 3 lb. 832. Assaulting referred to in the last section are of this privy councillor in the execution of his of- sort ; as, for example, Commonwealth v. ficc, 2 Chit. Crim Law, 99. Officers of Hastings, 9 Met. 259 ; Commonwealth v. customs and excise, 2 Chit. Crim. Law, Kennard, 8 Pick. 133 ; Commonwealth ». 137, 138 ; 4 Went. PI. 310, 387, 392, 394 ; Ducey, 126 Mass. 269 ; Commonwealth v. 6 Cox C. C. App. 30; Rex i: Brady, 1 Kirby, 2 Cush. .577, .579 ; Commonwealth B. & P. 1 87, 2 Leach, 4th ed. 803. To V. Tobin, 108 Mass. 426 ; The State v. prevent arrest or detention, 2 Chit. Crim. Roberts, 26 Maine, 263; The State v. Law, 146; 6 Cox C. C. App. 32-34 ; Rex Dearborn, 54 Maine, 442 ; People v. Hoi- v. Shadbolt, 5 Car. & P. 504 ; Rex v. Hood, comb, 3 Parker C. C. 656 ; The State v. 1 Moody, 281 ; Rex v. Ford, Russ. & Ry. Bradley, 34 Texas, 95 ; The State v. Coffey, 329 ; Rex v. Osmer, 5 East, 304. Assault 41 Texas, 46; The State w. Hooker, 17 Vt. and rescuing goods, 2 Chit. Crim. Law, 658 ; Rountree v. United States, 1 Pin. 59 ; 201 , 202 ; 4 Went. PI. 314. 6 Cox C. C. App. 29-31, 36; 2 Chit. Crim. 461 § 842 SPECIFIC OFFENCES. [BOOK III. force thereof did drive and compel to go away the said X, and did remove out of the said county the said horses ; against the peace, &c.' § 841. Another, with Statute. — Under the statutory words " forcibly resist, prevent, or impede any officers of the customs, &c. in the execution of their office," the substance of allegations adjudged good is, — That A, &c. on, &c. at, &c. did forcibly and unlawfully resist, prevent, and impede X, who was then and there an officer and inspector of the cus- toms with authority to seize all goods imported into the district of, &c. con- trary to law, in the execution of his said office, in this, that, whereas the said X was then and there lawfully holding in his possession awaiting trial, having theretofore by virtue of his said office lawfully seized, a certain trunk containing nineteen dozen of cotton hose, of the value, &c. as hav- ing been imported into the said district contrary to law, he the said A did then and there forcibly and unlawfully take and wrest from the said X, and carry away from his custody and out of his possession, the said trunk and the said merchandise therein contained ; against the peace, &c.^ § 842. Briefer. — In Tennessee it has been adjudged good to aver, — That A, &c. on, &c. at, &c. knowingly and wilfully resisted one X, a deputy sheriff, in attempting to serve and in serving a legal process, to wit, a civil warrant, on the said A ; against the peace, &c.' ' It was said in one case, that " the in- law that he was. Crim.Proced. II. § 884- dictment must show what the process was, 886, 888, 890, 905, 910 a, 911. There is that it was legal, and in the' hands of a no one analogy in the law of criminal proper officer, and the mode of obstruction." pleading from which the setting out at Wardlaw, J. in The State v. Hailey, 2 large of the process would be required, Strob. 73, 76. And in another case a though it is often done. For various learned judge observed, that " an indict- forms, see The State v. Moore, 39 Conn, ment for obstructing the execution of a 224 ; United States v. Goure, 4 Cranch search-warrant must show the warrant to C. C. 488 ; Horan o. The State, 7 Texas be legal, and it must therefore show that Ap. 183, 184 ; The State v. Lovett, 3 Vt. the warrant appeared upon its face to be UO ; The State v. Miller, 12 Vt. 437 ; The founded on a sufficient affidavit." Black- State v. Carpenter, 54 Vt. 551, 552; The ford, J. in The State u. Tuell, 6 Blackf. State v. Welch, 37 Wis. 196 ; The State v. 344, 345. Again, it seems to have been Beasom, 40 N. H. 367 ; The State v. Hen- deemed necessary so to describe the process derson, 15 Misso. 486 ; The State v. Copp, resisted that its lawfulness will appear. 15 N. H. 212; The State w. Fifield, 18 The State v. Flagg, 50 N. H. 321. This N. H. 34 ; The State v. Freeman, 8 Iowa, brings us back in some measure to ques- 428 ; Finn v. Commonwealth, 6 Barr, tions considered in an early chapter of the 460 ; Rex v. Lovelace, Trem. P. C. 273 ; present volume. Ante, §91-97. Undonbt- Eex o. White, Russ. & Ry. 99. Those cdly the fact that the officer was proceeding who wish to examine the English books of in due form of law should in some way precedents will find the references ante, appear in averment. But established prin- § 838, sufficientlj' available, ciples will permit the pleader, at his elec- ^ United States v. Bachelder, 2 Gallis. tion, either to say he was, or to set out 15. facts from which the court can see as of * The State v. Maynard, 3 Baxter, 462 CHAP. LXIII.] OBSTRUCTING JUSTICE, ETC. § 845 § 843. As to which — Another. — Doubtless not all of our courts will accept this form as sufficient. One sustained in Arkansas may come nearer satisfying objectors ; namely, — That A, &c. on, &c. at, &c. did knowingly and wilfully resist X, who was then and there a constable of N township in said county, in the at- tempt to execute a certain execution issued by 0, esquire, an acting justice of the peace within and for the township and county aforesaid, in favor of Y against Z ; against the peace, &c.^ II. Refusing to assist Officer? § 844. In General. — How in general the indictment should be we saw in another connection.^ The precedents differ consider- ably, and perhaps the decisions are not quite uniform, as to the degree of minuteness necessary in setting out the authority of the officer.* § 845. To detain Prisoner. — Following, in spirit and in sub- stance, an English form which was sustained, and adhering to the legal reasons which govern this sort of allegation,^ we may deem it adequate, where the offence is at the common law, to aver, — That on, &c. at, &c. X, a constable of the said town of, &c. had the law- ful custody of one Y whom he the said X had theretofore then and there duly arrested on a charge of felony, and after the said arrest the said Y then and there made an assault on the said X, attempting thereby, and em- ploying other means, to escape from said lawful custody ; whereupon the said X then and there called upon and commanded A, &c. [the defendant], having reasonable necessity for so doing, to assist him the said X in re- pelling the said assault, and in detaining the said Y, and preventing his escape ; but the said A, well knowing the premises, did then and there un- lawfully and wilfully neglect and refuse to obey the said call and command, and to assist the said X in repelling said assault and preventing said escape ; against the peace, &c.° 348. A similar form is good in Alabama. 5 Ante, § 840 and note. Heath v. The State, 36 Ala. 273. 6 Reg. v. Sherlock, Law Rep. 1 C. C. 1 Oliver v. The State, 17 Ark. 508. A 20, 10 Cox C. C. 170. If the pleader, on form not very dissimilar was sustained in comparing this form with such cases as The State v. Burt, 25 Vt. 373. The State v. Shaw, 3 Ire. 20, deems it 2 Crim. Law, I. § 464, 469 ; Crim. Pro- weak on the point of the officer's authority, ced. I. § 185 ; II. § 896. he can strengthen it as the particular facts 8 Crim. Proced. II. § 896. may suggest. And see, as to this, the al- * Compare Keg. u. Sherlock, Law Hep. legations in 2 Chit. Crim. Law, 151. 1 C. C. 20, 10 Cox C. C. 170, with The State V. Shaw, 3 Ire. 20. 463 § 848 SPECIFIC OFFENCES. [bOOK III. § 846. To arrest One. — Where the offence consists of a refusal to assist an officer in making an original arrest, there may be rea- sons to indicate a fuller setting out of his authority. If so, still the indictment need not be so minute as to contain a copy of the judicial process on which he was proceeding. General descrip- tion will suffice.^ § 847. To suppress Riot.^ — Stripping an English precedent of a part of its useless verbiage, and in a measure adapting it to American use, we have, — That on, &c. at, &c. divei's disorderly persons to the number of twenty and more, to the jurors unknown, did unlawfully, riotously, and routously assemble to disturb the public peace, and, being so assembled, did then and there for a long space of time, in breach of the public peace, continually commit divers riotous, routous, and turbulent outrages and ofEences, to the terror of many and all persons then and there inhabiting, passing, and being ; whereupon one X, a constable of said town, did then and there in the discharge of his said office undertake and endeavor to prevent and restrain said assembled persons from further committing said outrages and offences, and to suppress said riot, but tlie said assembled persons did thereon then and there forcibly resist him therein and in discharging the duties of his said office ; upon which the said X did then and there officially and in his own proper person call upon and require A, &c. [the defendant], then and there to aid and assist him the said X therein, in preserving the peace, and in arresting the said assembled persons offend- ing ; yet he the said A, well knowing the said official character of the said X, and well knowing the other aforesaid premises, did then and there un- lawfully and wilfully neglect and refuse so to do ; against the peace, &c.* III. Usurping or Assuming Office.^ § 848. Coroner. — Abridging and slightly modifying a verbose precedent from one of the older books, yet omitting nothing which any person would be likely to deem material, we have, at the common law, — That on, c&c. at, &c. one M was slain and his dead body lay there un- buried {or, set out any other facts rendering a coroner's inquest proper], and notice thereof was then and there duly given to X, one of the coroners 1 Consult and compare the two forms in herein, see Crim. Proced. I. § 166, 183, 185, Comfort V. Commonwealth, 5 Whart. 437 ; 186. and The State v. Nail, 19 Ark. 563. It ' Reg. v. Brown, Car. & M. 314. doea not seem necessary to encumber the * Crim. Law, I. § 468 and note, 587 ; text with them. Crim. Proced. II. § 898. ^ As to the duty of officers and others 464 CHAP. LXni.] OBSTRUCTING JUSTICE, ETC. § 849 in and for said county, that he might do in the premises what his office of coroner required ; ^ whereupon A, &c. [the defendant], not being and knowing himself not to be a coroner in and for said county, and having and knowing himself to have no authority of law to act in the premises [but being a person illiterate and entirely unfit, &c.^], did then and there maliciously, corruptly, and with intent to prevent the lawful taking of any coroner's inquisition upon view of the said dead body, usurp the office of coroner in and for said county, and take upon himself to execute those things which to the office of such coroner in the premises aforesaid be- longed. And thereupon he the said A did then and there, suddenly after the aforesaid death of the said M, subtly, unduly, and unlawfully cause and procure sixteen several persons upon the view of the said dead body then and there to take their several oaths, as the custom is, before the said A, &c. [proceeding to set out briefly what was done], whereby the said dead body was removed and buried ; so that neither the said X nor any other coroner iu and for said county could or can inquire in due manner upon the view of the said dead body within said county according to law, nor was any inquisition ever had as to how or by what means the said M came to his death ; against the peace, &c.° § 849. Sheriff — (On Statute). — On a statute making punish- able one who " shall falsely assume or pretend to be a justice of the peace, sheriff, deputy sheriff, coroner, or constable, and shall take upon himself to act as such," &o. the averments may be, — That A, &c. on, &c. at, &c. did falsely and unlawfully assume and pre- tend to be the sheriff of said county of M,* and did then and there take 1 I retain this arerment of notice to the 2 Chit. Crim. Law, 256. Usurping office of true coroner because in the form before justice of peace, Rex v. Wakeman, Trem. me. But its necessity is, at least, doubt- !"■ C. 179. ful. * In the form before me, the words here 2 In the form before me ; but certainly are " did falsely assume and pretend to be mere surplusage, for illiteracy would not a sheriff ; " and the proof was, that the have debarred him from acting had he been defendant pretended to be a sheriff from coroner. another State. The court interpreted the ' Bex V. Voysey, Trem. P. C. 238. statute to require the pretence to be, that Probably some of these latter allegations he was a sheriff of this State, which, there- are unnecessary, but the authorities are too fore, should be alleged ; and so arrested few to enable one to draw with absolute judgment. If this was all the statute certainty the partition line between the meant, I should say the form before the needful and the needless. Compare with court would suffice ; because the meaning the forms in Reg v. Buchanan, 8 Q. B. 883, of the allegation is, not that the defendant for acting as attorney without being en- said he was a sheriff of another State, but rolled and qualified in manner required by of this State. Crim. Proced. I. § 383 ; statute ; and Wayman v. Commonwealth, ante, § 644 and note. I interpret the stat- 14 Bush, 466, 469, for usurping the office ute, and herein I am sustained by the of judge of elections. For a form of indict- reasoning of the court, as requiring the ment against a township for burying a pretence to be such as implies the authority body without notice to the coroner, see to act in the locality in question, and to 30 465 § 850 SPECIFIC OFFENCES. [BOOK HI. npon Bnnself to act as such sheriff [hy thea and there removing and carry- ing away from the custody and possession of one X, under the pretence of serving a writ of attachment upon his goods and chattels, a one-horse har- ness of him the said X] ; against the peace, &c.^ IV. Embracery? § 850. Form, and liow. — The limits of this offence are not so well defined by authority as to render profitable an attempt to reduce the indictment to the fewest words. The following, from one of the older books, is slightly modified for use in our courts : — That OD, &c. at, &c. a certain issue in a plea of trespass on the ease hav- ing been joined between X as plaintiff and Y as defendant, in the court of, &c. was therein pending, and a certain jury of the said county was im- panelled and returned to try the same ; whereupon A, &c. well knowing the premises, and being a common embracer of jurors, and devising and wickedly and unlawfully intending to hinder the due and lawful trial of the said issue by the jurors aforesaid impanelled and returned to try the said issue, did then and there, unlawfully, wickedly, and unjustly, on behalf of the said Y, defendant, solicit and persuade Z, who then and there was, and whom the said A then and there well knew to be, one of the jurors of the said jury impanelled and returned for the trial of the said issue, to ap- pear and attend at the trial aforesaid upon the jury aforesaid in favor of the said Y ; and then and there did say and utter to the said Z, one of the jurors aforesaid, divers words and discourses by way of commendation, on behalf of the said Y, the defendant, and then and there did say and utter to the said Z divers words and discourses by way of dispraise of the said X, the plaintiff; and the said A then and there unlawfully and corruptly did move and desire the said Z to solicit and persuade the other jurors, im- panelled and returned to try the said issue, to give a verdict for the said Y, the defendant in the said cause. [And the jurors of the said jury, sworn for the trial of the said issue, by reason of the speaking of the said words and discourses by way of commendation on the behalf of the said Y, the tills view I have shaped the allegation to ticularizing the transaction. Other Pre- ■ oonform, and it necessarily satisfies the re- cedents. — For a form for acting under a •quiremcnt of the court. false process from court contrary to a stat- i Commonwealth v. Wolcott, 10 Cush. ute, Keg. v. Evans, Dears. & B. 236, 7 Cox •61. The indictment had two counts, one C. C. 293. Delivering a paper falsely pur- ■with matter similar to this in brackets, the porting to be a copy of a certain process, other without it. There can be no occasion Reg. v. Castle, Dears. & B. 363, 7 Cox C. C. for more than one count. I should prefer, 375. at least for caution, to retain this matter. ^ Grim. La,w, I. § 468; II. § 384-389; It is of a sort which some judges, not all, Crim. Proced. H § 344.-347. iwoiild be likely to deem necessary as par- 466 CHAP. LXni.j OBSTRUCTING JUSTICE, ETC. § 852 defendant, did give their verdict for the said Y, the defendant^] ; against the peace, &c.' § 851. Conspiracy in Nature of Embracery. — Another old pre- cedent is, in substance, — That at a court of, &c. on, &c. at, &c. a certain issue in a plea of tres- pass on the case, between X, plaintiff, and A, defendant, was tried by a jury of the country ; and before said trial, the said A, &c. B, &c. and C, &c. did, on, &c. at, &c. conspire, combine, and confederate together, by rewards and other ways and means, unlawfully to procure a verdict to be given for the defendant ; and, to bring about the same, to cause and enable the said B and C* for divers sums of money paid them by the said A, to be sworn and serve as jurors for the trial of the said issue,* and give and procure to be rendered a verdict for the defendant. In pursuance of which unlawful agreement and confederation, the said B and C afterward, on the diay and year first above mentioned', there, by unlawful ways and means', did procure themselves to be sworn as jurors in the trial of the said issue, and, together with the other jurors sworn to try the same, did give their verdict for the defendant ; against the peace, &c.* V. Other Obstructions. § 852. Dissuading 'Witness. — For the common-law offence of enticing or persuading a witness not to appear at the trial,^ the allegations will vary with the special facts. They may, for ex- ample, be, — That on, &c. at, &c. A, &c. having theretofore in due form of law en- tered into a recognizance before O, esquire,, a justice of the peace in and for the said county of M, to appear and answer at the then next term of the Court of, &c. holden in and for said county, to a complaint charging him with having theretofore in said county, &c. [stating briefly the sub- stance of the accusation], and X having in like manner entered into a recognizance before the said O, esquire, to appear at the said court as a witness in the said cause," the said A,, well knowing the premises, and contriving and intending to impede and obstruct the due course of justice 1 There is no just ground for deeming circumstantibus " not so far incorporated this matter in brackets indispensable, while into our legal language as to have become yet the pleader may choose to retain it if English, rendering the allegation ill. Crim. true in his particular case. Proced. I. § 342, 345, 347. 2 Kex V. Brooks, Trem. P. C. 175. * Rex v. Opie, 1 Saund. 300. ' Inthe form before me, the expression * Crim. Law,. I. § 468, 695, 734 ; II. here is, " to be sworn de circumstantibus for § 253, 264^. 266 ; Crim. Proced. I. § 556 ; the trial of the said issue." I should hesi- II. § 897. tate to use this expression, on the ground *■ As to the sufficiency of the form thus that the court might hold the words " de far, see Crim. Proced. I. § 556 ; II. § 897. 467 § 854 SPECIFIC OFFENCES. [bOOK III. therein, unlawfully and corruptly did entice, solicit, and endeavor to per- suade ^ the said X to absent himself from the said court, and not to appear before the same to give evidence of what he knew concerning the said com- plaint and accusation ; against the peace, &c.'' § 853. Unlawful Oath. — A sort of obstruction of justice is the administering or taking of an extrajudicial or other unlawful oath. There are, in England, statutes making it punishable ;^ and per- haps, also, in some of our States. But this sort of prosecution so seldom occurs that it will suffice to refer to places where forms for the indictment may be found.* § 854. other Forms. — The methods by which justice and the workings of government may be obstructed are numberless.^ But the foregoing sections of this chapter, and the places referred to in it, will, directly or by analogy, furnish the pleader with all needed help. 1 Ante, § 106, 116. * Archb. Crim. PI. & Ev. 19th ed. 842- 2 The State v. Ames, 64 Maine, 386. 844 ; 2 Chit. Crim. Law, 102 ; Kex a. Other Solicitations. — Against a snr- Eadon, 31 Howell St. Tr. 1064 ; Reg. ». veyor of taxes for persuading a collector Nott, supra. Car. & M. 288 ; Rex v. Love- to secrete a part of the money, 2 Chit, lass, 1 Moody & R. 349, 6 Car. & P. 596 ; Crim. Law, 139. Soliciting a custom- Rex v. Ball, 6 Car. & P. 563 ; Kex v. Brod- house officer to neglect his duty, Rex v. ribb, 6 Car. & P. 571 ; Rex v. Noonan, Everett, 8 B. & C. 114. Attempting to Jebb, 108; Rex w. Adams, Jebb, 1 35. persuade men to enlist as soldiers in an- ' See, for example, forms for a con- other State, Commonwealth v. Jacobs, 9 spiracy to release one from custody, and Allen, 274. Enticing soldiers to mutiny, become bail under fictitious names, 3 Chit Rex c. Fuller, 2 Leach, 4th ed. 790; 2 Crim. Law, 1145. Maiming to prevent Chit. Crim. Law, 101. Obstructing, by arrest, Rex v. Williams, 1 Moody, 387. seditious words and promises of indemnity. Pulling down stocks, prison, &c. 2 Chit, the execution of a warrant, 2 Chit. Crim. Crim. Law, 207 ; Rex v. Guy, 6 Went. PI. Law, 147. 401. Receiving money to help one to 8 1 Russ. Crimes, 5th Eng. ed. 284-291, stolen goods, 2 Chit. Crim. Law, 218, 219. 377 ; 3 lb. 30, 106 ; Archb. Crim. PI. & Ev. Feeding armed prowlers, Vaughn v. The 19th ed. 840-845 ; Reg. v. Nott, 4 Q. B. State, 3 Coldw. 102. Not repairing jail, 3 768 ; Rex v. Moors, 6 East, 419, note. Chit. Crim. Law, 668. For OBSTRUCTING RIVER, see Wat. OFFENSIVE SHOWS, see ante, § 798-801. OFFENSIVE TRADES, see ante, § 827-831. OFFICE, MISCONDUCT IN, see Malfeasance, &c. OFFICE, REFUSING, see RErnsiNO Office. OMISSION, see Neglects. OPEN AND NOTORIOUS LEWDNESS, see ante, § 152-158. ORAL SLANDER, see Libel and Slandeb. 468 CHAP. LXIV.] PEACE, BREACHES OP THE. § 857 CHAPTER LXIV. PEACE, BREACHES OF THE.^ § 855. Meaning — Elsewhere. — The meaning of the term " breach of the peace " appears at the places cited in the note. It is variable, sometimes extending to include all indictable wrongs, but commonly less wide in signification. Therefore it is not employed as a separate title in the other volumes of this series. So, in this volume, most of the breaches of the peace are contemplated under their more specific names. It would be use- less to enumerate them here. § 856. Night-disturbance of Habitation. — Various forms of charging a common-law offence of this sort have been adjudged adequate. Thus, — That A, &c. [ante, § 74-77], on, &c. [ante, § 80] about the hour of ten in the night thereof [ante, § 87], at, &c. [ante, § 80], unlawfully, mali- ciously, and secretly did, with intent to disturb the public peace, break and enter the dwelling-house of X [there situate '^j, Y the wife of the said X being then and there in said dwelling-house pregnant with child ; where- upon the said A did, in said dwelling-house, then and there greatly misbe- have himself, and greatly frighten the said Y, to her grievous injury, by means whereof she did afterward, on, &c. at, &c. miscarry ; against the peace, &c. [ante, § 65-69].' § 857. Another. — Said the court: "The breaking of windows in the night, while a family is in the house, is not a mere tres- pass upon property ; but, being calculated in its nature to frighten and disturb the people within the house, it may be considered as an indirect attack upon the persons of the family, and is clearly a breach of the peace." Therefore allegations were held good, in substance, — 1 For the law relating to this title, see * Doubtless not necessary. Ante, Crim. Law, I. § 536, 5-37, 539, 550, 591, § 253. 734, 945 ; Crim. Proced. I. § 207, 229, ' Commonwealth v. Taylor, 5 Binn. 264 n, 557, 1312; Stat. Crimes, § 19S, 277. 1064, note. 469 § 859 SPECIFIC OFFENCES. [BOOK in. That A, &c. on, &c. in the night thereof, at, &c. did unlawfully, vio- lently, and injuriously cast and throw stones upon and against the dwelling- house of X, while he the said X and sundry other persons of his family were in said dwelling-house ; and two window-sashes and fifteen squares of glass, parcel of said dwelling-house, did, with a large stick of wood and with stones, the said X and said other persons being in said dwelling-house and greatly terrified thereby, unlawfully, violently, and injuriously break and destroy ; against the peace, &C.''' § 858. Under Statute. — A statute making punishable one who shall "disturb or break the public peace by tumultuous and of- fensive carriage, by threatening, quarrelling, challej^ing," ifec. creates but a single offence of breaking the peace, and it may be committed in any or all of the ways thus pointed out. Yet as it does not completely define the offence, allegations simply in the statutory words are not sufficient ; something must be added giv- ing character to and individualizing the transaction.^ Taking hints from averments held good, yet constructing a form nearly independently of them, we have, — That A, &c. on, &c. at, &c. did disturb and break the public peace by tumultuous and offensive carriage, and in particular toward one X, whom in the presence of divers assembled people he then and there abused by foul oaths and opprobrious words, and assaulted, and beat [here is a full allega- tion on one clause of the statute, but if the pleader chooses he may proceed to another, thus], and by threatening with a loud voice to horsewhip Y the wife of the said X ; against the peace, &c.' § 859. Another. — The Arkansas statute, in terms similar to those in some of the other States, declares punishable one who " shall make use of any profane, violent, abusive, or insulting language toward or about another person, in his presence or hear- ing, which language, in its common application, is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault." Whether particular words are so calculated the jury should decide under the facts of the individual case.* It is believed to be good to allege, — That A, ,&c. on, ,&c. at, &c. did, in the presence and hearing of X, make use of and utter the following profane, violent, abusive, and insulting words 1 The State v. Batchelder, 5 N. H. 549. 2 The State v. Matthews, 42 Vt. 542. Similar was the indictment which was ad- ° The State v. Hanley, 47 Vt. 290. judged good at the common law in The * The State b. Moser, 33 Ark. 140. State V. Wilson, 3 Misso. 125. And com- pare with ante, § 445, 446, 707. 470 CHAP. LXrv.J PEACi;, BBEACHES OF THE. § 861 toward and about the said X ; namely [here setting out the words, ante, § 632-635] ; the same, in their common application, having been then and there calculated to arouse the said X to anger, to cause a breach of the peace, and cause the said X to assault the said A ; against the peace, &c.* § 860. Other Methods of Offending. — It would not be easy to draw the outer limits of this offence at the common law ; and, beyond doubt, there are many acts not set down in the books, yet within the reason of others held indictable, which an intelli- gent court might well be asked to pronounce within the condem- nation of the unwritten law. And statutes are continually enlarging the bounds of this offence.^ § 861. raise Alarm of Fire. — One method of disturbing the peace, perhaps not within the reasons of tlie common law, is to make a false alarm of fire. Under a statute authorizing a con- viction " for giving, or causing to be given, a false alarm by the fire-alarm telegraph in the city of Mobile, Icnowing the same to be such," it has been deemed not necessary that the bells should be actually rung in the regular manner, or the firemen deceived. Less will suffice.^ It is believed that, under the common-law rules, the allegations on such a provision may be, — That A, &c. on, &c. at, &c. did unlawfully ring and cause to be rung, by means of the fire-alarm telegraph of the city of M, bells denoting a fire in said city and creating an alarm thereof, whereas there was not then and there any such fire, and this, and that the said alarm was false, the said A then and there well knew ; against the peace, &c. 1 For more of this sort of statute and ^ See, ifor disturbing the peace, the sum- the indictment thereon, see Hearn v. The xnary conviction in Rex v. Roberts, Trem. State, 34 Ark. 550 ; Ivey v. The State, 61 P. C. 332. Making a brawl and tumult, Ala. 58 ; Ex parte Kearny, 55 Cal. 212 ; The State v. Rollins, 55 N. H. 101. In- Commonwealth v. Foster, 3 Met. Ky. 1 ; timidating, alarming, and disturbing a per- Commonweailth v. Hawkins, 11 Bush, 603; son, Embry u. Commonwealth, 79 Ky. 439. Henderson v. The State, 63 Ala. 193 ; The .See also The State v. Mills, 10 Vroom, State V. Schlottman, 52 Misso. 164 ; ante, 587. § 635, note. * Kopjwrsinith ,». The State, 51 Ala. 6. For PEDDLEES, see Hawkers and Peddlers. 471 § 868 SPECIFIC OFFENCES. [BOOK III. CHAPTER LXV. PENSION LAWS, OFFENCES AGAINST THE. § 862. In General. — The pension laws and their penalties oc- cupy considerable space in the volumes of statutes of the United States. Important though they are, they do not often come within the cognizance of the criminal-law lawyer. Hence, and because a full exposition of the offences under them would occupy more space than can well be spared in this volume, — § 863. How in this Chapter. — The author will, in this chapter, simply direct attention to places in the reports where needed in- formation on this subject may be found. § 864. "Withholding Pension. — We have some judicial exposi- tions of this statutory offence, and forms for the indictment.^ Also, — § 865. Fees. — The taking, by pension agents, of extortionate fees.2 Also, — § 866. Forged Papers. — The transmitting of forged papers to the pension office.^ And, — § 867. Fraudulent Claims. — The presenting of fraudulent claims to pensions.* Moreover, — § 868. Personating. — Falsely personating a deceased soldier, to obtain a pension, is considered in some Irish cases.^ 1 United States v. Bennett, 12 Blatch. * United States v. Jennison, 1 Mc- 345 ; United States ?'. Howard, 7 Bis. 56 ; Crary, 226 ; United States c. Wilcox, su- United States v. Chaffee, 4 Ben. 330. pra. False Affidavit, — presenting, to 2 United States v. Marks, 2 Abb. U. S. commissioner of pensions, United States v. 531, 536. Staats, 8 How. U. S. 41. 8 United States v. Wilcox, 4 Blatch. 6 Egx v. Keefe, Jebb, 6 ; Rex v. Fitz- 385 ; United States v. Bickford, 4 Blatch. maurice, Jebb, 29. And see ante, § 426. 337. 472 CHAP. LXVI.] PERJURY. § 871 CHAPTER LXVI. PEBJUKY.l § 869. Preparing to draw Indictment. — It will not be safe for the inexperienced pleader to construct an indictment for perjury after a form provided for him, until he has carefully read what in " Criminal Procedure " is said of the indictment,^ and laid before him the statutes and judicial determinations of his own State relating thereto. For enough depends upon differing statutory terms or the absence of statutes, and upon conflicting views of the common law relating to certain questions, to render steps in disi'egard of this caution too dangerous to be judicious. But one who has thus prepared himself will encounter no difficulties, nor will he need the help of numerous forms. Therefore, — § 870. How this Chapter. — Though the subject of this chapter is large, and the books are crowded with precedents upon it, no great number of forms will be herein presented, while yet the references to places where forms may be found will be full. Its purpose is to give what the pleader will discover, in practice, to be needed help, not to pile up a mass of matter the examination whereof will consume his time without profit. § 871. Formula for Indictment. — In this offence, as in others, the order of the averments is immaterial. And convenience has, in the mass of precedents, varied it somewhat with the different sorts of perjury. So, also, in the parts of the precedents relating to the jurisdiction of the tribunal or magistrate, the authority to administer the oath, and the materiality of the matter alleged to be perjured, where the pleader at his election may either charge the 1 Foi- the direct expositions of this of- 589, 734, 942, 974, 975 ; Crim. Proced. I. fence, with the pleading, practice, and evi- § 470, 480, 529, 857, 858, 864 ; Stat. Crimes, dencc, see Crim. Law, 11. § 1014-1056; § 129, 183, 815. And see Subornation Crim. Proced. II. § 899-939. Incidental, op Perjury. Crim. Law, L § 298, 320, 437, 468, 564, ^ Crim. Proced. II. § 901-926. 473 § 871 SPECIEIC lOFFBNCBS. [BOOK JIL thing in words or set out facts whence it will judicially appear,^ the forms vary with what in differing classes of cases has been found practically convenient. Hence various details of the aver- ments can best be given in the subsequent sections. In outline, itill bearing in mind that the order of the allegations is unimpor- tant and changing, they are, — That on, &c. at, «&c. [ante, § 80], before the court of, &c. [or, before M, esquire, a justice of the peace in and for said county, or, &c. as the par- ticular case may require], on an issue within the jurisdiction of said court duly joined, and trial thereof before a jury of the country, between X [ante, § 78, 79] as plaintiff and Y [ante, § 78, 79] as defendant ' {_or, &c. setting out any differing facts]. A, &c. [ante, § 74-77] was in due form of Jaw sworn by said court ^ [or, by said M], having icompetent authority to ad- minister to him the oath, to speak the truth, the whole truth, and nothing but the truth touching the matters then and there in controversy between the said X and the said Y [^or, varying these allegations as the particular facts and sort of case require]. Whereupon it then and there became and was a question material to said issue whether [say what], and to this the said A did then and there .[feloniously *] wilfully and corruptly testify and say, in substance and effect, that, &c. [setting out the part ^ of his testi- mony which relates to the particular point, in exact substance ^nd as nearly as convenient in his exact words, together with any explanations necessary to a proper understanding of it] ; whereas, in truth and in fact, as the said A then and there well knew, &c. [proceeding with the proper denial of the truth ; or, &c. varying the aillegations otherwise to suit the particular case, but adhering to the principles on which the foregoing are con- structed] ; against the peace, &c. [ante, § 65-69].° 1 Crim. Proced. II. § 910 o, 914, 921. not continuous in the testimony, -it is the ^ As to ihow full these allegations .must safer method — though to me it does not be, and whether the record must be set seem in principle necessary where, as here, out entire, see Crim. Proced. 11. § 905- the substance instead of the tenor is set 911; ante, § 91-97. How in these and out — to adapt the averments to this fact ; other respects the indictment is in the as, — United States courts, see K. S. of U. S. At one place, in his said e^•ic^ence and tes- § 5396. timoiiy, that, &c. and at another place there- 3 Some pleaders would prefer to add, in that, &c. at any appropriate place, the name of the ^ For forms and precedents, see Archb. judge presiding. Still this is believed not Crim. PI. & Ev. 19th ed. 868, 882, 884, to be essential where the perjury is before 885 ; 2 Chit. Crim. Law, 318-485; 4 Went, a court with a name which is given. But PI. 230-305 ; 6 lb. 423, 424 ; 1 Cox C. C. where it is before an unnamed tribunal, or App. 7 ; 2 lb. App. 5 ; 4 lb. App. 6, 16 ; is in an affidavit before a magistrate, the 5 lb. App. 45, 61-76, 82, 84 ; 6 II). 85, 118, name of the official person should be al- 141 ; Trem. P. C. 136-168; Rex v. Gates, leged. Crim. Proced. II. § 910. 10 JHowell St. Xr. 1Q79, 1227 ; Rex v. * To be inserted when the offence is Heath, 18 Howell St. Tr. 1, 46 ; Rex v. felony. Gibbons, 19 Howell St Tr. 275,278 ; Rex 5 Compare with ante, § 619, note. So v. Canning, 1,9 Howell St. Tr. 283, 284; here, if the matter charged as perjured was Rex v. Greqp, 5 Mod. 342 ; Rex c-. Cross- 474 CHAP, LXVI.] PEEJiUET. §87S § 872. Essential — Comiiton Surplusage. — The averments mu&t show a proceeding or occasion wherein false swearing is perjury — - ley, 7 T. R. 315 ; Rex u. Stevens, 5 B. & C. 246 ; Reg. v. Virrier, 12 A. & E. 317 ; Keg. V. Overton, 4 Q. B. 83 ; Keg. v. Scotton, 5 Q. B. 493 ; Reg. u. Moreau, 11 Q. B. 1028; Keg. v. Dunn, 12 Q. B. 1026 ; Dunn v. Reg. 12 Q. B. 1031 ; Lavey o. Keg. 17 Q. B. 496; Walker v. Reg. 8 Ellis & B. 439 ; Reg. v. Scott, 2 Q. B. D. 41.5, 13 Cox C. C. 594; Reg. v. Orton, 5 Q. B. D. 490, 14 Cox C. C. 436 ; Rex 0. Brady, 1 Leach, 4th ed. 327 ; Rex V. Lincoln, Russ. & Ry. 421 ; Reg. v. Keat, 2 Moody, 24 ; Keg. v. Gardiner, 2 Moody, 95, 8 Car. & P. 737 ; Reg. v. Evfington, 2 Moody, 223, Oar. & M. 319 ; Reg. v. Overton, 2 Moody, 263, Car. & M. 655 ; Reg. V. Chapman, 1 Den. C. C. 432, 440 ; Reg. V. Bennett, 2 Den. C. C. 240, 3 Car. & K. 124, 5 Cox C. C. 207 ; Lavey v. Reg. 2 Den. C. C. 504, 5 Cox C. C. 269 ; Reg. V. Webster, Bell C. C. 154, 8 Cox C. C. 187 ; Reg. v. Westley, Bell C. C. 193, 195, 8 Cox C. C. 244 ; Reg. v. Senior, Leigh & C. 401, 9 Cox C. C. 469 ; Reg. v. Shaw, Leigh & C. 579, 10 Cox C. C. 66 ; Reg. v. Proud, Law Rep. 1 C. C. 71, 10 Cox C. C. 455 ; Reg. v. Western, Law Rep. 1 C. C. 122, 11 Cox C. C. 93; Reg. v. Par- ker, Law Rep. 1 C. C. 225, 11 Cox C. C. 478 ; Reg. v. Dunning, Law Rep. 1 C. C. 290, 11 Cox C. C. 651 ; Rex v. Hawkins, Peaike, 8 ; Rex v. Taylor, 1 Camp. 404 ; Rex V. Leefe, 2 Camp. 134 ; Rex u. Bucks, 1 Stark. 521, 524; Rex v. Tucker, 2 Car. & P. 500 ; Rex v. Moody, 5 Car. & P. 23 ; Rex v. Harris, 7 Car. & P. 253; Reg. 0. Pearson, 8 Car. & P. 119; Reg. v. Wheatland, 8 Car. & P. 238 ; Reg. v. Hewlns, 9 Car. & P. 786 ; Reg. v. Yates, Car. & M. 132; Reg. v. Christian, Car. & M. 388 ; Reg. v. Goodfellow, 'Car. & M. 569 ; Reg. v. Parker, Car. & M. 639 ; Reg. V. Overton, Car. & M. 655 ; Reg. v. Boynes, 1 Car. & K. 65 ; Reg. v. Fellowes, 1 Car. & K. 115 ; Reg. v. Bartholomew, 1 Car. & K. 366 ; Reg. v. Newton, 1 Car. & K. 469; Reg. ». Hughes, 1 Car. & K. 519; Reg. V. Dunn, I Car. & K. 730 ; Reg. o. Roberts, 2 Car. & K. 607 ; Reg. ■». Turner, 2 Car. & K. 732 ; Reg. v. Hankins, 2 Car. & K. 823, 825, note ; Reg. v. Garvey, 1 Cox C. C. lU ; Reg. v. Satchell, 2 Cox C. C. 137 ; Keg. v. Schlesinger, 2 Cox C. C. 200 ; Reg. v. Kimpton, 2 Cox C. C. 296 ; Ryalls V. Reg. 3 Cox C. C. 36 ; Keg. v. Whitehouse, 3 Cox C. C. 86 ; Dunn u. Reg. 3 Cox C. C. 205 ; Ryalls v. Reg. 3 Cox C. C. 254 ; Reg. v. Ward, 3 Cox C. C. 279 ; Keg. v. Browning, 3 Cox C. C. 437 ; Reg. V. Worley, 3 Cox C. C. 535 ; Reg. v. Withers, 4 Cox C. C. 17; Reg. v. Cutts, 4 Cox C. C. 435 ; Reg. «. Child, 5 Cox C. C. 197 ; Reg. v. Newall, 6 Cox C. C. 21 ; Reg. 0. Taylor, 6 Cox C. C. 58; Reg. V. Neville, 6 Cox C. C. 69 ; Reg. v. Lawlor, 6 Cox C. C. 187, 188 ; Reg. v. Legge, 6 Cox C. C. 220 ; ileg. o. Ball, 6 Cox C. C. 360; Reg. u. Kirton, 6 Cox C. C. 393; Reg. V. Courtney, 7 Cox C. C. Ill, 113 ; Reg. V. Harvey, 8 Cox C. C. 99 ; Keg. v. Fairlie, 9 Cox C. C. 209 ; Reg. v. Bray, 9 Cox C. C. 2 1 8 ; Reg. ,v. Pearce, 9 Cox C. C. 258 ; Rex v. Prendergast, Jebb, 64 ; Reg. V. Gaynor, Jebb, 262 ; Reg. v. Clement, 26 U. C. Q. B. 297 ; Reg. v. Mason, 29 U. C. Q. B. 431. Alabama. — The State v. Lest, 3 Ala. 603 ; Gibson v. The State, 44 Ala. 17, 21- Hood V. The State, 44 Ala. 81 ; Johnson V. The State, 46 Ala. 212 ; Jacobs v. The State, «1 Ala. 448. Arkansas. — The State v. Green, 2i Ark. 591 ; The State v. Kirkpatrick, 32 Ark. 117; Nelson v. The State, 32 Ark. 192. California. — People v. Brilliant, 58 Cal. 214. Connecticut. — Arden v. Tie State, 11 Conn. 408. Florida. — Humphreys v. The State, 17 Pla. 381, 383 ; Dennis v. The State, 17 Ela. 389, 390. Georgia. — Herabree v. The State, 52 Ga. 242; Pennaman v. The State, 58 Ga. 336. Illinois. — Morrell v. People, 32 111. 499 ; Kimmel v. People, 92 111, 457. Indiana. — Weathers v. The State, 2 Blackf. 278 ; Galloway u. The State, 29 Ind. 442 ; The State w. Walls, 54 Tnd. 407 ; The State v. Schultz, 57 Ind. 19 ; The State V. Howard, 63 Ind. 502. Iowa. — United States v. Morgan, Mor- ris, 341 ; United States v. Dickey, Mor- ris, 412 ; The State v. Sehill, 27 Iowa, 263 ; The State v. Kinley, 43 Iowa, 475 §872 SPECIPIO OFFENCES. [book III. an oath administered by a person or court having authority — something sworn to — its materiality — its known falsity.^ And to render all plain, it may or may not be necessary, according to the special exigencies of the case, to allege, as in libel,^ matter of inducement, and to explain the words of the perjury by innuen- does.^ Now, from early days in England, it has been the com- mon practice to augment these needful allegations by immense 294 ; The State v. Nickerson, 46 Iowa, 447. Kentucky. — Commonwealth v. Powell, 2 Met. Ky.' 10. Louisiana. — The State v. Gibson, 26 La. An. 71. Maine. — The Stat* v. Corson, 59 Maine, 137. Maryland. — Deckard o. The State, 38 Md. 186, 188. Massachusetts. — Commonwealth v. Knight, 12 Mass. 274 ; Commonwealth v. Warden, 11 Met. 406 ; Commonwealth w. Flynn, 3 Cush. 525 ; Commonwealth o. Johns, 6 Gray, 274 ; Commonwealth u. Carel, 105 Mass. 582 ; Commonwealth v. Kimball, 103 Mass. 473 ; Commonwealth D. Terry, 114 Mass. 263; Commonwealth f. Grant, 116 Mass. 17; Commonwealth v, Butland, 119 Mass. 317, 318; Common- wealth V. McLaughlin, 122 Mass. 449 ; Commonwealth v. Sargent, 129 Mass. 115. Michigan. — People v. Fox, 25 Mich. 492. Mississippi. — Cothran v. The State, 39 Missis. 541. Missouri. — The State c;. Bailey, 34 Misso. 350 ; The State v. Marshall, 47 Misso. 378 ; The State v. Keel, 54 Misso. 182; The State v. Foulks, 57 Misso. 461 ; The State w. Hamilton, 65 Misso. 667 ; The State V. Wakefield, 9 Misso. Ap. 326. New Hampshire. — The State v. Has- call, 6 N. H. 352 ; The State v. Bailey, 11 Fost. N. H. 521. New York. — People v. Phelps, 5 Wend. 9 : Campbell v. People, 8 Wend. 636 ; Eighmy v. People, 79 N. Y. 546 ; Burns V. People, 5 Lans. 189 ; People u. Bur- roughs, 1 Parker C. C. 211 ; Smith v. Peo- ple, 1 Parker C. C. 317 ; People v. Sweet- man, 3 Parker C. C. 358 ; People v. Mc- Kinncy, 3 Parker C. C. 510. North Carolina. — The State v. Ara- mons, 3 Murph. 123 ; The State v. Mum- ford, 1 Dev. 519 ; The State v. Garland, 3 476 Dev. 114; The State v. Bobbitt, 70 N. C. 81 ; The State v. Colbert, 75 N. C. 368; The State v. Davis, 84 N. C. 787. Ohio. — Crusen v. The State, 10 Ohio Stole, 258 ; The State v. Jackson, 36 Ohio State, 281. Pennsylvania. — Perdue v. Common- wealth, 15 Norris, Pa. 311. i)outh Carolina. — The State v. Hay- ward, 1 Nott & McC. 546 ; The State v. McCroskey, 3 McCord, 308. Tennessee. — The State v. Steele, 1 Yerg. 394 ; Lamden v. The State, 5 Humph. 83 ; The State v. Moffatt, 7 Humph. 250 ; The State V. Bowlus, 3 Heisk. 29; The State v. Wise, 3 Lea, 38 ; Lawson v. The State, 3 Lea, 309. Texas. — The State v. Lindenburg, 13 Texas, 27 ; The State v. Powell, 28 Texas, 626 ; The State v. Webb, 41 Texas, 67, 68 ; The State v. Smith, 43 Texas, 655 ; Massie v. The State, 5 Texas Ap. 81 ; Mar- tinez V. The State, 7 Texas Ap. 394; Eohrer v. The State, 13 Texas Ap. 163, 166 ; Gabrielsky v. The State, 13 Texas Ap. 428 ; Cox v. The State, 13 Texas Ap. 479. Vermont. — The State v. Chamberlin, 30 Vt. 559. Virginia. — Conner v. Commonwealth, 2 Va. Cas. 30 ; Commonwealth v. Hick- man, 2 Va. Cas. 323 ; Commonwealth v. Stockley, 10 Leigh, 678 ; Thomas v. Com- monwealth, 2 Rob. Va. 795 ; Common- wealth V. Roach, 1 Grat. 561 ; Common- wealth V. Pickering, 8 Grat. 628. West Virginia. — Stofer v. The State, 3 W. Va. 689. 1 Crim. Proced. II. § 901 et seq. 2 Ante, § 618 ; Crim. Proced. II. § 783, 785-787, 793, 794. 8 2 Chit. Crim. Law, 310, 311 ; Rex <;. Aylett, 1 T. R. 63 ; Rex v. Taylor, 1 Camp. 404; Rex v. Greepe, 2 Salk. 513; s. o. nom. Rex v. Griepe, 1 Ld. Rayra. 256. CHAP. LXVI.] PBRJUEY. § 878 masses of surplusage. Even the full setting out of judicial records, which seems once to have been the ordinary course, re- quired neither by legal principle nor, so far as can now be dis- covered, by judicial decisions, was taken from the indictment only by the kindl}'- hand of legislation.^ Yet other surplus- age remains, deforming the precedents, and working in practice its natural mischiefs. The presentation of something of it here becomes necessary, the same under this title as under others, for the purpose of so pointing it out to pleaders as to enable those who may wish to avoid it, to proceed therein with confidence. Thus, — § 873. Affidavit — (Common English Form). — The current books of English practice furnish, as the model for pleaders, the following precedent of the indictment for perjury iu an affidavit to hold to bail, — plethoric with verbosity, and loaded with surplusage : — That A, &c. [wickedly and maliciously contriving and intending unjustly to aggrieve one X, and to put him the said X to great expense,'^ and also] unjustly and maliciously to cause him the said X to be arrested for the sum of fifty pounds, by virtue of a certain writ of our Lady the Queen, called a capias, to be sued out and prosecuted at the suit of him the said A," on, &c. at, &c. came in his proper person before Sir 0, knight, then being one of the justices of the court of our Lady the Queen before the Queen herself, and then and there produced a certain affidavit in writing of him the said A, and then and there before the said Sir 0, knight, in due form of law was sworn [and took his corporal oath upon the Holy Gospel of God *] concerning the truth of the matters contained in the said affidavit (he the said Sir 0, knight, then and there having a lawful and competent power and authority to administer the said oath to the said A in that be- half) ; and that the said A, being so sworn as aforesaid [not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil '], then and there, upon his oath aforesaid, before the said Sir O, knight (the said Sir O, knight, then and there having a lawful and compe- 1 Crim. Proced. II. § 905-909. plaining its materiality ; and, where juris- 2 There can be and is no pretence that diction is not directly averred, or does not this matter is necessary. No such specific appear otherwise, to this question also, intent is an element in the offence. Crim. Therefore I should recommend the inser- Law, I. § 1045-1048. And see ante, § 46, tion of this sort of allegation in all indict- 4g, ments on affidavits, though it may not in 8 This averment is in more words than all be strictly necessary. And see Crim. necessary. But I think the occasion for Proced. II. § 911. taking an affidavit, or the purpose for * Needless, and practically objectionable which it is to be used, ought, where this ascompellingproof that the oath was taken matter does not appear in the affidavit in this form. Crira. Proced. II. § 912,913. itself, in some way to be alleged, as ex- * Not necessary. Ante, § 44. 477 §873 SPECIFIC OEPENCBS. [book m. tent power and authority to administer the said oath.' tO' the said A in that behalf),' falsely, corruptly,, knowingly, wilfully, and maliciously,, in and by his said affidavit in writing, did depose and swear (amongst other things) in substance and to the effect following, that is to say, that X (meaning the said X above mentioned) was then justly and truly indebted unto him the said A in the sum of fifty pounds, for goods sold and delivered by the said A to the said X, and at his (meaning the said X's) request ; [as in and by the said affidavit of the said X, affiled in the said court of our said Lady the Queen before the Queen herself, more fully and at large appears ^] ; where- as, in truth and in fact, the said X, at the time the said A took his said oath and made his affidavit aforesaid, was not indebted to him the said A in the sum of fifty pounds for goods sold and delivered by the said A to the said X ; and whereas, in truth and in fact, the said X was not then indebted to the said A in the sum of fifty pounds on any account whatsoever ; and whereas, in truth and in fact, the said X was not then indebted to the said A in any sum whatsoever, on any account whatsoever.' [And so the jurors aforesaid upon their oath aforesaid do say, that the said A, on the third day of August in the year last aforesaid, at London aforesaid in the parish and ward aforesaid, before the said Sir O, knight (he the said Sir 0, knight, then and there having such power and authority as aforesaid), by his own act and consent, and of his own most wicked and corrupt mind, in manner and form aforesaid, falsely, wickedly, wilfully, and corruptly did commit wilful and ' There can be no occasion to repeat the authority of the judge, and in other re- spects these averments are in more words than are required. 2 This averment that the affidavit was filed in court is natural enough and com- mon ; still, as the defendant's guilt does not depend on what is done after the false swearing has transpired, it is wholly use- less. Rex V. Crossley, 7 T. R. 315. " But where the proceeding is under the statute of Elizabeth, by which an action is given to the party injured by the false oath, it should be shown that the affidavit was produced and used against that party." 1 Stark. PI; 2d ed. 121. ' Assignment of the Perjury — (De- fendant's Knowledge). — Of these three several denials of one simple fact, the last, which comprehends in its meaning the other two, is, beyond doubt, as effective for every purpose as the three combined. There ia another question which, consid- ered in the light of principle, is more seri- ous. It is not perjury for a man to swear to what is false believing it to be true, and it is perjury for him to swear to what is true believing it to be false. His belief, not the fact, is the- criterion. Ciim. Law, I. 478 § 320 ; II. § 1043-1048 ; Bishop First Book, § 117-119. From this it would fol- low, that, to bring the assignment of the perjury within the law of the offence, there must be added to the words in the text the phrase " as the said A then and there well knew," or something else to the like effect. And there is no escape from this conclu- sion, unless on the assumption that the averment of a fact is a prima facie setting out also that the defendant knew it, — a sort of reasoning never permitted to govern the indictment for cheating by false pre- tences. Ante, § 420; Crim. Proced. 11. § 163, 172. Still the precedents in general are, on this point, largely the same as the one in the text, and they appear to be ac- cepted as good. The State v. Raymond, 20 Iowa, 582. An exception, all admit, occurs where the swearing is, in terms, to the defendant's belief. Crim. Proced. II. § 920. Were I a prosecuting officer, how- ever confident I might be that my court would adjudge the question in line with the old precedents, X should follow in prac- tice what I saw to be right in principle, in a case where, as in the present, no objecllon could come from the court. CHAP. Lxvi.j PEBJuar. § 874 corrupt perjury ^] ; [to the great displeasure of Almighty God, in contempt of our Lady the Queen and her laws, to the evil and pernicious example of all others' ia the like case offending,^ and] against the peace, &c.' § 874. Condensed and Comprehensive, for AfSdavit. - — AfBdavits are required for so many purposes, under so many cireumstances, that to give a form of indictment for perjury in every one would be impossible vsrere it desirable. The following may be easily adapted to differing facts, it is compact in language, and is believed to be sufficient under the common law or on any statute the terms whereof it duly covers : — That on, &c. at, &c. the matter of the hereinafter mentioned affidavit became and was material to an issue [or inquiry, or issue and inquiry] then pending [^or about to be made, or then pending and about to be madte] before and within the jurisdiction of, &c. [giving the name of the court or department of government before which the issue or inquiry is pending or to come, if it has a name, otherwise the individual name of the magistrate or other officer, and varying or enlarging this statement as the particular case will indicate] there [or, at, &c. if the hearing of the question to which the affidavit relates is to be at a place other than where it is taken] ; * whereupon A, &c. did then and there [or, then, at the place first above written, or at the said N] wilfully [feloniously] and corruptly make solemn oath before, &c. [giving the name of the court, magistrate, or other officer before whom or which the oath is taken], having lawful authority to ad- minister the same, that a certain written affidavit was and is true, in sub- stance and effect that [here setting out the affidavit] ; whereas, in truth and in fact, &c. [proceeding with the proper denials of its truth], as the said A then and there well knew ; against the peace, &c.° 1 Unnecessary. Crim. Proced. II. § 903 Hutchinson, Trem. P. C. 164 ; Bex ii. and note. And compare with ante, § 743 Hawkins, Trem. P. C. 167 ; 2 Chit. Crim. and note. Law, 324, 325, 327, 328, 334, 336-338, 340, 2 None of the matter in these brackets 343, 344, 348, 374, 377, 380, 382, 411, 412, is necessary. Ante, § 44, 45, 48; Crim. 414, 416, 427, 440, 443, 445, 446, 448, 470, Proced. I. § 501, 647. 471, 473; 484 ; 4 Went. PI. 230, 232i, 242, « Archb. Crim. PI. & Ev. 10th ed. 566, 246, 253, 258, 260, 263, 264, 277, 278, 281. 567, 19th ed. 868. To various particulars in connection with * In. these descriptive parts, the pleader bail. Commonwealth v. Carel, 105 Mass. should avoid following too closely any 582 ; Commonwealth v. Sargent, 129 Mass. form from a book. The facts are endless 115; 2 Chit. Crim. Law, 318, 320, 321, in diversity, and the indictment should 323, 329, 330, 332 ; 4 Went. PI. 249, 271 ; cover them, not the precedent or form. 6 lb. 423, 424. In depositions, 2 Chit. 6 For forms and precedents, see Eohrer Crim. Law, 422 ; 4 Went. PI. 235 ; Rex V. The State, 13 Texas Ap. 163, 166 ; Reg. v. Stone, Trem. P. C. 148 ; Rex v. Boucher, V. Clement, 26 U. C. Q. B. 297 ; Jacobs v. Trem. P.C. 150; Rex v. Sotherton, Trem. The State, 61 Ala. 448 ; The State v. Lea, P. C. 155 ; Rex v. H. P. Trem. P. C. 162. 3 Ala. 603 ; Dunn v. Reg. 3 Cox C. C. And see other places in subsequent sec- SOS; Reg. V. Newton, 1 Car. & K. 469; tions. Eex V. Crossley, 7 T. E. 315 ; Rei v. 479 § 875 SPECIFIC OFFENCES. [BOOK III, § 875. Testimony at Trial — (Common Form). — Adapting to American use, from a current book of English practice, a prece- dent for the indictment against one who had testified falsely as a witness in the trial of a cause, we have, — That heretofore, on, &c. at, &c. before a court of, &c. [giving the name of the court], the Honorable one of the justices thereof presiding, a cer- tain issue between one X and one Y, in a certain plea of trespass and as- sault, wherein the said X was plaintiflf, and the said Y defendant, came on to be tried in due form of law, and was then and there tried by a jury of the country in that behalf duly sworn and taken between the parties afore- said ; upon which said trial A, &c. then and there appeared as a witness for and on behalf of the said Y, the defendant in the plea aforesaid, and was then and there duly sworn [and took his corporal oath upon the Holy Gospel of God ^] before the said Honorable O, so being such justice as aforesaid, that the evidence which he the said A should give to the court there, and to the said jury so sworn as aforesaid, touching the matter then in question between the said parties, should be the truth, the whole truth, and nothing but the truth (he the said Honorable O, justice as aforesaid, then and there having sufficient and competent authority to administer the said oath to the said A, in that behalf). And [the jurors first aforesaid upon their oath aforesaid do further present ^] that, at and upon the trial of the said issue so joined between the said parties as aforesaid, it then and there became and was a material question whether the said Y assaulted and beat the said X. And [the jurors first aforesaid upon their oath aforesaid do further present °] that the said A, being so sworn as aforesaid [not having the fear of God before his eyes, nor regarding the laws of this State, but being moved and seduced by the instigation of the Devil, and contriving and intending to pervert the due course of law and justice, and unjustly to aggrieve the said X, the plaintiff in the said issue, and to de- prive him of the benefit of his suit then in question, and to subject him to the payment of sundry heavy costs, charges, and expenses *}, then and there, on the trial of the said issue, upon his oath aforesaid, falsely, cor- ruptly, knowingly, wilfully, and maliciously, before the said jurors so sworn as aforesaid, and before the said Honorable O, justice as aforesaid, did depose and swear (amongst other things), in substance and to the effect following, that is to say, that, &c. [setting out, with innuendoes when necessary,' so much of A's testimony as is to be made the foundation for the assignment of his perjury]. Whereas, in truth and in fact, &c. [pro- ceeding to assign the perjury as at ante, § 873]. [And so the jurors afore- said upon their oath aforesaid do say, &c. as at ante, § 873 ; and, as there, unnecessari/] ; against the peace, &c.' 1 Unnecessary and better omitted, ter in these brackets is either necessary or Crim. Proced. II. § 912, 913; ante, § 873. desirable. Ante, § 44-48, 873 and note. 2 Unnecessary. Ante, § 64, 115, note. ' Ante, § 872. 8 Unnecessary, as above. 6 Archb. Crim. PI. & Ev. 10th ed. 573, * It is believed that no part of the mat- 19th ed. 882. And compare with ante, § 871 480 CHAP. LXVI.J PERJUET. §876 § 876. other Porms — might be multiplied to an indefinite ex- tent. But the principles which govern all are fully illustrated in the foregoing sections. Much space would be occupied to little purpose should we proceed further in the text. Yet the pleader may occasionally derive help from an examination of the prece- dents cited in the note.^ and notes, and the notes to ante, § 873. This form, omitting the matter in brackets, is in more words than necessary ; but the pleader has already the suggestions for compressing it, should he desire. And see for other forms and precedents, 2 Chit. Crim. Law, 349, 351, 353, 355, 356, 358, 360, 361, 364, 366, 368, 395, 406, 437, 452, 453, 455, 457- 460, 46.3-466, 468 ; 4 Went. PI. 239, 244, 250, 266, 273, 275 ; 6 lb. 396 ; 1 Cox C. C. App. 7 ; Rex v. Cross, Trera. P. C. 136; Rex u. Jole, Trem. P. C. 138 ; Rex v. Hanson, Trem. P. C. 143 ; Rex v. C. T. Trem. P. C. 144 ; Rex v. Trotter, Trem. P. C. 146 ; Rex v. Saxon, Trem. P. C. 157 ; Reg. v. Turner, 2 Car. & K. 732; Hembree «. The State, 52 Ga. 242 ; People V. Burroughs, 1 Parker C. C. 211; The State V. Corson, 59 Maine, 137. In Reg. V. Webster, Bell C. C. 154, 8 Cox C. C. 187, a form quite condensed was sustained. Witness in Own Case. — In Reg. v. Scott, 13 Cox C. C. 594, less fully reported 2 Q. B. D. 415, it was adjudged good to aver (slightly varying some of the expres- sions to suit our own practice), — That heretofore an action was brought in the M court, wherein A, &c. was plaintiff and X was defendant, and on, &c. at, &c. it came on for hearing before the Honorable 0, one of the justices of said court, and then and there the said A did appear as a witness upon the hearing thereof, and was duly sworn by the said 0, having competent authority therefor, to give true evidence therein; whereupon the said A did then and there, on his oath so as aforesaid taken, falsely, corruptly, knowing- ly, and maliciously depose and swear, among other things, in substance and to the effect, that he the said A never did in any way em- ploy or consult M and N as his legal -counsel, that he never executed any mortgage or deed relating to the property claimed by him in said action, and that the allegation in the statement of defence in said action that he executed the deeds therein mentioned was untrue, and that he did not execute any of such deeds. Whereas, in truth and in fact, 31 the said A did employ and consult the said M and N as his legal counsel, and did execute divers mortgage and other deeds relating to the property claimed by him in said action, and the said allegation in the said statement of defence was true, and the said A did exe- cute some or all of said deeds; and the said false statements, so upon oath made by the said A, were material to the questions and matter then and there in issue before the court, and the said A did thereby then and there commit wilful and corrupt perjury; against the peace, &c. Here was a transposition of the com- mon order of the averment of materiality, and some of the judges deemed the con- struction of the allegations inartificial. It does not seem quite so to me. Compare their observations with Crim. Proced. II. § 921, and the places there referred to. 1 Equity, — Perjuries in various pro- ceedings in, 2 Chit. Crim Law, 384, 386, 391, 392, 398, 399 ; 4 Went. PI. 292 ; 6 Cox C. C. App. 85 ; Rex v. Brooks, Trem. P. C. 151 ; Reg. i-. Hewins, 9 Car. & P. 786 ; Lamden u. The State, 5 Humph. 83 ; Commonwealth v. Warden, 11 Met. 406. Bankruptcy and Insolvency, — in vari- ous proceedings in, ante, § 236 ; 2 Chit. Crim. Law, 402 ; i Cox C. C. App. 6 ; 5 lb. App. 72 ; Reg. v. Keat, 2 Moody, 24 ; Rex (,■. Moody, 5 Car. & P. 23 ; Reg. v. Ewing- ton, 2 Moody, 223, Car. & M. 319 ; Reg. V. Westley, 1 Bell C. C. 193, 195, 8 Cox C. C. 244 ; Reg. v. Parker, Car. & M. 639 ; Reg. V. Legge, 6 Cox C. C. 220 ; United States 0. Morgan, Morris, 341 ; United States V. Dickey, Morris, 4 1 2. Elections, — in various proceedings connected with, 6 Cox C. C. App. 118; Rex u. Harris, 7 Car. & P. 253 ; Campbell v. People, 8 Wend. 636 ; Burns v. People, 5 Lans. 189 ; Humphreys v. The State, 17 Ma. 381 , 383 ; Dennis i>. The State, 17 Fla. 389, 390. Magistrate, — before, 2 Chit. Crim. Law, 432, 434, 435 ; 4 Went. PI. 244 ; Reg. v. Goodfellow, Car. & M. 569 ; Reg. v. Gardi- 481 §877 SPEaPIO OFFENCES. [book III. § 877. In Nature of Perjury. — There are false affirmations on oath, which, while not technical perjury, are in the nature of it.^ The indictment follows the same general rules as for perjurj'. There are various statutory sorts of this offence ; but a mere reference to places where precedents may be found will ade- quately supply the demands of the pleader.^ ner, 2 Moody, 95, 8 Car. & P. 737 ; Penna- man v. The State, 58 Ga. 336. Bastardy, — in proceedings of, 2 Chit. Crim. Law, 438, 439. ITaturolization, — in applica- tion for, People v. Sweetman, 3 Parker C. C. 358. Juror, — in answers of, as to competency, The State v. Howard, 63 lud. 502 ; The State v. Moffatt, 7 Humph. 250 ; Commonwealth v. Stockley, 10 Leigh, 678. Legislative Committee, — hefore, 2 Chit. Crim. Law, 418 ; 4 Went. PI. 300 ; Eex v. Leefe, 2 Camp. 134. Tax Commission- ers, — before, Reg. v. Overton, 2 Moody, 263, Car. & M. 655. Grand Jury, — before, Reg. v. Hughes, 1 Car. & K. 519 ; The State v. Keel, 54 Misso. 182, 184; The State v. Hamilton, 65 Misso. 667 ; Massie v. The State, 5 Texas Ap. 81 ; Thomas v. Commonwealth, 2 Rob. Va. 795 ; Commonwealth v. Pickering, 8 Grat. 628. Arbitrators and Beferees, — be- fore, 2 Chit. Crim. Law, 424 ; 4 Went. PI. 256 ; Eighmy a. People, 79 N. Y. 546. Foot Debtor, — by, 2 CUt. Crim. Law, 346; Arden u. The State, 11 Conn. 408; People V. Phelps, 5 Wend. 9. Superse- deas, — in petition for writ of, Common- wealth V. Kimball, 108 Mass. 473. Mar- riage Iiicense, — in oath to obtain, Reg. V. Chapman, 1 Den. C. C. 432, 440, 2 Car. & K. 846, 848, note, 3 Cox C. C. 467 ; Reg. I'. Fairlie 9 Cox C. C. 209. Taken up Arms, — in swearing that the party had not, Stofer v. The State, 3 W. Va. 689. Surveyor of Customs, — before, 2 Chit. Crim. Law, 442. Interrogatories, — in answer to, 2 Chit. Crim. Law, 397, 449. Quaker, — by, 4 Went. PI. 256, 266. Administration, — to obtain, Eex v. Bra- dy, 1 Leach, 4th ed. 327. 1 For example, Crim. Law, II. § 1014. 2 2 Cox C. C. App. 5 ; 5 Cox C. C. App. 84 ; Reg. v. Parker, Law Rep. 1 C. C. 225, 11 Cox C. C. 478 ; Reg. v. Boynes, 1 Car. & K. 65 ; Reg. v. Browning, 3 Cox C. C. 437 ; The State v. Foulks, 57 Misso. 461 ; The State v. Marshall, 47 Misso. 378. For PERSON, EXPOSURE OF, see ante, § 802-804. PERSONATING, see ante, § 426, 868. PETIT LARCENY, see Larceny. PICTURES, OBSCENE, &c. see ante, § 628-631, 798-801. 482 CHAP. LXVII.] PIBACT. §879 CHAPTER LXVII. PIEACT.l § 878. Varieties. — This offence, under the law of nations, and as enlarged by statutes, is of considerable dimensions. It is ex- plained in " Criminal Law," not quite minutely, but as fully as was deemed advisable in this series of works. To present a complete set of forms for the indictment for it would require more space than can be spared here. But, — § 879. Under Law of Nations. — The indictment under the law of nations,^ adapting an English precedent to our use, may be, — That A, &c. B, &c. and C, &c. [ante, § 74-77], who are now severally within this district, having been brought into it first after the commissio'n of the hereinafter recited offence,' on, &c. [ante, § 80], on the high seas ' For the direct expositions of the law of this offence, see Crim. Law, II. § 1057- 1063. Incidental, lb. I. § 118-120, 306, 826, 98.5. 2 Crim. Law, II. § 1058, 1060. * R. S. of U. S. § 730. There are other more common methods of stating this mat- ter, and the pleader will be likely to elect to follow the custom of his own court. Compare with Archb. Crim. PI. & Ev. 19th ed. 948, under title "Bigamy." By the Act of April 30, 1790 (c. 9, § 8, 1 U. S. Stats, at Large, p. 114), " the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular State, shall be in the district where the of- fender is apprehended, or into which he may first be brought." A common method of averment was, after the indictment in however many counts was finished, to add, in a separate paragraph, — And the jurors aforesaid upon their oath aforesaid do further present, that the said A was first brought into N aforesaid, in the dis- trict of S, after the commission of the said offence, and that the said district of S [so, with apparently needless repetition, adds a form before me] is the district into which he was first brought. Davis Prec. 222. The present statute is somewhat differ^ ently expressed ; namely, " The trial of all offences committed upon the high seas or elsewhere, out of the jurisdiction of any particular State or district, shall be in the district where the offender is found, or into which he is first brought." R. S. of U. S. § 730. The reader perceives that only the offender's presence [" where the offender is found "] in the district is now required to give the jurisdiction. Nor should I inter- pret this provision as making necessary even his presence in the district previous to his arraignment. If this interpretation is correct (I can give no assurance that the courts will follow it), and perhaps if it is not, there is no need to mention anywhere in the indictment that the defendant is within the district. For he cannot be tried or even plead or demur or move to quash the indictment without his presence in court (Crim. Proced. I. § 265-269, 728-730, 776) ; and the fact of bis presence is palpable both. 483 §879 SPECIFIC OFFENCES. [book III. within the admiralty jurisdiction of the United States and out of the juris- diction of any particular State,^ in and on board of a certain ship called the M [in a certain place upon the high seas distant about ten leagues from Q in P^], in and upon certain mariners whose names are to the jurors un- known [in the peace of, &c.'], piratically and feloniously did make an assault, and them the said mariners in bodily fear and danger of their lives, on the high seas aforesai. venience of any pleader who may deem it Bootic, 2 Bur. 864. important. It is not generally in these Alabama. — Kavanaugh v. The State, precedents ; nor, in principle, does it seem 41 Ala. 399. essential to a prima facie case. The rea- Arkansas. — Bass v. The State, 29 Ark. sons in ante, § 893, are different. 142 ; Martin v. The State, 32 Ark. 124; 2 To be employed where the offence is Griffin v. The State, 37 Ark. 437, 439. felony. Indiana. — The State v. Sparks, 78 Ind. 8 For precedents and other forms, see 166. Archb. Crim. PI. & Ev. 10th ed. 550, 551, North Carolina. — The State B.Baldwin, 19th ed. 852, 854 ; 2 Chit. Crim. Law, 171- 80 N. C. 390. 182 297 • Rex V. Glover, Trem. P. C. 244 ; * The State v. Baldwin, 80 N. C. 390. ' ' 493 § 898 SPECIFIC OFFENCES. [BOOK UI. his custody, or permit him to go at large," averments adjudged good were in substance, — That A, &c. on, &c at, &c being the sheriff of said county, and having the lawful custody of one X, who had been convicted by the Circuit Court in and for said county at [a specified term thereof] of the crime of, &c. and adjudged to pay a fine of ten dollars with costs of prosecution, which said fine and costs remained on said first-mentioned day unpaid, did unlawfully on said first-mentioned day there voluntarily permit the said X to escape and go at large from and out of the said custody of the said A ; against the peace, &c* § 898. Other Forms — may occasionally be required,* but none which the foregoing will not furnish analogies for drawing.* 1 Griffin v. The State, 37 Ark. 437, which a prisoner who has escaped, or is 439. otherwise at large, is to be restored to con- 2 See, for conveying a person escaped fiuement, are explained in Crim. Proced. from the custody of the sergeant-at-arms, I. § 1382-1386. And see, for forms, Hag- into parts beyond the sea. Rex v. Lock, gerty v. People, 6 Lans. 332. Though, in Trem. P. C. 248. Returning or being at 53 N. Y. 476, this case was overruled on large after transportation, Reg. v. Home, grounds which seem special to New York, 4 Cox C. C. 263 ; Rex v. Watson, Russ. I do not understand that the forms are, & Ry. 468 ; Rex v. Fitzpatrick, Russ. & therefore, to be deemed ill in localities Ry. 512. where the proceeding itself is allowed. ' Prisoner at Iiarge. — The steps by 494 CEAP. LXXI.] PEIZE-PIGH'HNG. § 902 CHAPTER LXXI. PKIZE-PIGHTING.l § 899. Assault — Affray — Riot, &c. — A prize-fight may be an assault and battery, and as such it is perhaps oftenest prosecuted.* Or it may be an affray,^ or a riot, or unlawful assembly.* Its con- sideration in these aspects is for the other titles, not this. § 900. statute and Indictment. — A statute and form of indict- ment upon it are given in another connection.^ § 901. Present, &o. — Under a provision to punish one " who shall be present at such [by previous appointment and arrange- ment] fight, as an aid, second, or surgeon, or who shall advise, encourage, or promote such fight," the allegations may be, — That A, c&c. on, &c. at, &c. was present as an aid and second at, and did advise, encourage, and promote, a fight in which one X did then and there, by previous appointment and arrangement, meet and engage with one Y; against the peace, &c.' § 902. Leaving State, &c. — Under a statute to punish an in- habitant of this State who, " by previous appointment or engage- ment made therein, leaves the State and engages in a fight with another person without the limits thereof," it is good to aver, — That A, &c. on, &c. at, &c. did, being an inhabitant of this State, by previous appointment and engagement made therein, unlawfully leave this State and engage in a fight with one X, at N, in the State of M ; against the peace, &c.' 1 Crim. Law, I. § 260, note, 535, 632 ; 7 Gray, 324 ; Commonwealth v. Mitchell, 7 II. § 35 ; Crim. Proced. II. § 24, 61 ; ante, Gray, 324 ; Commonwealth «. O'Baldwin, § 222. 103 Mass. 210 ; Commonwealth v. Barrett, 2 Ante, § 222 ; Eeg. v. Coney, 8 Q. B. 108 Mass. 302. D. 534, 15 Cox C. C. 46. * Commonwealth ir. Mitchell, 7 Gray, 8 Places referred to ante, § 222. 324. < Hex V. Perkins, 4 Car. & P. 537 ; Rex ' Commonwealth v. Barrett, lOS Mass. V. Billingham, 2 Car. & P. 234. 302. I have considerably abridged the s Crim. Proced. II. § 24. For various form in the book ; omitting, it is believed, precedents, see Commonwealth, t;. Welsh, nothing important 495 § 904 SPECIFIC OFFENCES, [BOOK III. CHAPTER LXXII. EAPE AND CARNAL ABUSE OF CHILDRBN.^ § 903. Precaution. — Though the common-law indictment for rape is simple and uniform, the statutes against the carnal abuse of young girls, to be covered by the allegations for this branch of the offence, differ somewhat ; and even rape proper, and the attempts to commit it and the carnal abuse, are, in some of the States, modified by differing enactments. Therefore the in- experienced pleader should not venture upon the drawing of any indictment within this title until he has laid before him and care- fully examined the statutes of his own State. § 904. Formula for Indictment. — Subject to be varied with the differing terms of statutes, the averments may be, — That A, &c. [ante, § 74-77], on, «&c. at, &c. [ante, § 80], in and upon one X [ante, § 78, 79, adding, if, as in carnal abuse, the age is material, this matter in the statutory words ; as, a female child under the age of ten years], violently and feloniously did make an assault, and her the said X then and there violently and against her will ^ feloniously did ravish and carnally know [so far, omitting the matter in brackets, a rape is charged ; or, if the offence is carnal abuse, omit " violently," ' and say, after " as- sault," and her the said X then and there feloniously did carnally know and abuse, or, if any other words better cover the statute, employ them ; or, if the offence is attempt, add the allegation of a battery * or other overt 1 For the direct expositions of these of- pression should be " against her -will " or fences, with the pleading, evidence, and " without her consent," Crim. Law, II. practice, see Crim. Law, II. § 1107-1136; § 1111, 1114, 1115; Crim. Proced. IL Crim. Proced. II. § 947-979 ; Stat. Crimes, § 949, 951 ; Stat. Crimes, § 480. § 478-499. Incidental, Crim. Law, I. § 37, » Or, no harm will come from retain- note, 259, 261, 373, 554, 736, 737, note, ing this word. 746, 753, 762, 765, 766, 788, 795, 808, 935 ; * As, see ante, § 201 et seq. This addi- II. § 56; Crim. Proced. I. § 335, 419, 431, tion, where the facts sustain it, is com- 446, 479; IL § 6 a, 81, 82, 91 ; Stat, monly prudent ; but, in strict law, probably Crimes, § 211, 215, 318, 643, 660, 661, no more than an assault is necessary, un- 663. less the proceeding is on a statute which ' See, on the .question whether this ex- requires more. «i'496 CHAP. LXXII.] RAPE AND CARNAL ABUSE. §904 act to that of assault, and, instead of charging the consummation of the carnal wrong, say, with intent then and there to, &c.] ; against the peace, &C.1 1 For precedents and other forms, see Archb. Ciim. PI. & Ev. 19th ed. 762, 766- 768; 3 Chit. dim. Law, 815-818; 4 Went. PI. 73 ; 6 lb. 368, 394 ; 6 Cox C. C. App. 42-46 ; Rex v. Audley, 3 Howell St. Tr. 401, 406 ; Rex v. Scott, Russ. & Ry. 415 ; Rex I'. Tolkes, 1 Moody, 354 ; Reg. v. Al- len, 2 Moody, 179, 9 Car. & P. 521 ; Reg. V. Johnson, Leigh & C. 632, 10 Cox C. C. 114 ; Rex V. Gray, 7 Car. & P. 164 ; Reg. u. Martin, 9 Car. & P. 215 ; Reg. v. Crish- am, Car. & M. 187 ; Reg. v. McGavaron, 3 Car. & K. 320, 6 Cox C. C. 64 ; Reg. V. Sweenie, 8 Cox C. C. 223 ; Reg. v. Nicholls, 10 Cox C. C. 476 ; Reg. v. Ry- land, 11 Cox C. C. 101 ; Reg. u. Ratcliffe, 15 Cox C. C. 127 ; Reg. v. Oulaghan, Jebb, 270 ; Reg. v. Webster, 9 L. C. 196, 198. Alabama. — Wetherby ». The State, 39 Ala. 702 ; Leoni v. The State, 44 Ala. 110; Johnson v. The State, 50 Ala. 456. Arkansas. — SuUivant u. The State, 3 Eng. 400 ; Anderson v. The State, 34 Ark. 257. Ca///brnia. — People v. Mills, 17 Cal. 276 ; People v. Burke, 34 Cal. 661 ; Peo- ple V. O'Neil, 48 Cal. 257 ; People v. Girr, 53 Cal. 629. Connecticut. — The State v. Wells, 31 Conn. 210. Georgia. — Stephen v. The State, 1 1 Ga. 225 ; Joice v. The State, 53 Ga 50. Indiana. — Wcinzorpflin v. The State, 7 Blackf. 186 ; Whitney v. The State, 35 Ind. 503 ; Mills v. The State, 52 Ind. 187 ; Black V. The State, 57 Ind. 109 ; Richie v. The State, 58 Ind. 355 ; Batterson c The State, 63 Ind. 531 ; Vance v. The State, 65 Ind. 460. Iowa. — The State v. Newton, 44 Iowa, 45 ; The State v. Pennell, 56 Iowa, 29. Kansas. — Ths State v. Ruth, 21 Kan. 583. Louisiana. — The State v. Williams, 32 La. An. 335. Maine. — The State v. Blake, 39 Maine, 322. Massachusetts. — Commonwealth v. Lanigan, 2 Law Reporter (Bost.), 49 Commonwealth v. Hunt, 4 Pick. 252 Commonwealth v. Scannel, 11 Cush. 547 32 Commonwealth v. Sugland, 4 Gray, 7 Commonwealth v. Sullivan, 6 Gray, 477 Commonwealth c^, Eogerty, 8 Gray, 489 Commonwealth v. Squires, 97 Mass. 59 Commonwealth v. Thompson, 116 Mass. 346. Michigan. — People v. McDonald, 9 Mich. 150 ; People v. Lynch, 29 Mich. 274 ; Turner v. People, 33 Mich. 363, 374. Minnesota. — O'Connell v. The State, 6 Minn. 279. Missouri. — McComas v. The State, 1 1 Misso. 116; The Slate a. Anderson, 19 Misso. 241 ; The State v. Little, 67 Misso. 624 ; The State v. Hatfield, 72 Misso. 518 ; The State v. Meinhart, 73 Misso. 562 ; The State V. Warner, 74 Misso. 83, 84. Nebraska. — Fisk v. The State, 9 Neb. 62, 63. New York. — Goughlemann v. People, 3 Parker C. C. 15; People v. Jackson, 3 Parker C. C. 391. North Carolina. — The State u. Wash- ington, 2 Murph. 100 ; The State a. Sam, 2 Dev. 567 ; The State v. Jesse, 2 Dev. & Bat. 297 ; The State c. Jesse, 3 Dev. & Bat. 98 ; The State v. Goings, 4 Dev. & Bat. 152 ; The State v. Farmer, 4 Ire. 224 ; The State v. Tom, 2 Jones, N. C. 414; The State v. Johnson, 67 N. C. 55 ; The State V. Durham, 72 N. C. 447 ; The State V. Scott, 72 N. C. 461 ; The State v. Sax- ton, 78 N. C. 564 ; The State v. Dancy, 83 N. C. 608. Ohio. — O'Meara v. The State, 17 Ohio State, 515. Pennsylvania. — Stent v. Common- wealth, 11 S. & R. 177 ; Mears v. Com- monwealth, 2 Grant, Pa. 385. Tennessee. — Williams v. The State, 8 Humph. 5S5 ; Nevills v. The State, 7 Coldw. 78; Dillard v. The State, 3 Heisk. 260; Hill V. The State, 3 Hcisk. 317 ; Brown v. The State, 6 Baxter, 422. Texas. — Davis v. The State, 42 Texas, 226 ; Williams v. The State, 1 Texas Ap. 90; Greenlee o. The State, 4 Texas Ap. 345, 346 ; Curry v. The State, 4 Texas Ap. 574, 576; Battle v. The State, 4 Texas Ap. 595 ; O'Rourke v. The State, 8 Texas Ap. 70; Elschlcp v. The State, U Texas Ap. 301, 302; Sanford v. The State, 12 497 §905 SPECIFIC OFFENCES. [book III. § 905. Rape — (Common Form with Surplusage). — The older precedents in rape, even as late as when Chitty wrote, have the " instigated by the devil " clause,^ together with the later sur- plusage. The present common form, from which more or less is occasionally omitted, is, — That A, &c. on, &c. [with force and arms ^, at, &c. in and upon one X ^ [in the peace of God and the State then and there being ^J, violently ' and feloniously did make an assault,* and her the said X then and there' violently ° and against her will ' feloniously did ravish '" and carnally know ; '^ against the peace, &c.^^ Texas Ap. 196 ; Brinster v. The-State, 12 Texas Ap. 612 ; Cornelias ;;. The State, 13 Texas Ap. 349, 352. Virginia. — Taylor v. Commonwealth, 20 Grat 825 ; Christian v. Commonwealth, 23 Grat. 954 ; Lawrence v. Commonwealth, 30 Grat. 845. 1 3 Chit. Crim. Law, 815 ; Kex v. Aud- ley, 3 Howell St. Tr. 401, 406. Unneces- sary, ante, § 44. 2 Needless. Ante, § 43. 2 Addition — Sex. — No addition is re- quired to a name, like this, of a third per- son. Ante, § 78. Nor, in rape, whether under the common law or on a statute, need It be averred that the person ravished was a woman. Crim. Proced. II. § 952. Still, needlessly, many of our American precedents mention the sex ; and a part of the English ones have an addition — for example, "spinster" — denoting the sex. In reason, if the sex of the injured person should be mentioned, so also should be the defendant's, but nothing of the latter ap- pears in any of the precedents. * Unnecessary. Ante, § 47. 5 "Violently — Forcibly. — All the pre- cedents have "violently," and the careful pleader will be likely to continue its use, though it seems to be unnecessary. Some of our statutes, which the indictment must cover, have " forcibly ; " but violently is a good substitute. Crim. Proced. II. § 959. s Assault. — The words " did make an assault" are, like "violently," in all the precedents, for which and other reasons the cautious pleader will retain them. Yet an indictment is good without them. Crim. Proced. II. § 955. ' Then and There. — The words "then and there," at this place, are common, per- haps universal, in the precedents. There 498 are analogies from which their necessity would seem to follow, and others indicating the contrary. Crim. Proced. I. § 408, 409, 413 ; II. § 57. They are too easily writ- ten to justify the experiment of their omis- sion. ' See preceding note. " See ante, § 904, note. 1" Kavish. — This word is indispensable. Crim. Proced. II. § 953 ; 1 Hale P. C. 632. 11 Carnally know. — Not so certainly required, not being in the old statute on which our common law of rape is founded. Crim. Law, IL § 1111. Still they arc in the precedents, and by some authorities apparently deemed necessary. 3 Chit. Crim. Law, 811, 812. In reason, they are not neces.«ary. Yet, practically, I should retain them ; and, where the indictment is on a statute having them, they are plainly indispensable. 12 Archb. Crim. PI. & Ev. 10th ed. 480; The State v. Farmer, 4 Ire. 224 ; The State V. Saxton, 78 N. C. 564 ; Commonwealth V. Eogerty, 8 Gray, 489. Still, the differ- ing statutes and other causes have created some diversities ; as to which, see and com- pare, — Alabama. — Leoni v. The State, 44 Ala. 110. Arkansas. — Anderson v. The State, 34 Ark. 257. California. — People v. Burke, 34 Cal. 661. Georgia. — Stephen u. The State, 11 Ga. 225 ; Joice v. The State, 53 Ga. 50. Indiana. — Weinzorpflin v. The State, 7 Blackf. 186 ; Whitney v. The State, 35- Ind. 503 ; Mills o. The State, 52 Ind. 187 ;, Black V. The State, 57 Ind. 109 ; Richie v. CHAP. LXXII.j RAPE AND CARNAL ABUSE. § 907 § 906. Same on Statute — (" By Force "). — Where a statute defines the offence, or adds an element not in the unwritten law, the foregoing form should be varied to cover the interpreted stat- utory terms.^ Nor, in prudence, though there may be permissible substitutes, is it practically well to employ them, and especially should not the pleader try experiments with what is doubtful. Thus, under a provision to punish one who " shall ravish and carnally know any female, of the age of ten years or more, by force and against her will," ^ the word " violently " and the other words of the common-law indictment have been held both to sup- ply ^ and not to supply* the statutory expression "by force," so as to permit its omission.^ But no form ought to have been em- ployed raising the question. The convenient and safe way would be simply to expand the common-law averments by the statutory phraseology, though it would be quite possible to construct what would be equally safe with less words ; as, — That A, &c. on, &c. at, &c. in and upon one X, a female of the age of ten years and more, violently and feloniously did make an assault, and her the said X then and there violently, by force, and against her will feloni- ously did ravish and carnally know ; against the peace, &c.* § 907. Carnal Abuse — (Under ten, &o.). — The indictment for the carnal abuse of a female child differs from that for rape on The State, 58 Ind. 355 ; Vance v. The 2 Dev. & Bat. 297 ; The State v. Jesse, 3 State, 65 Ind. 460. Dev. & Bat. 98 ; The State v. Johnson, 67 Iowa. — The State v. Pennell, 56 Iowa, N. C. 55 ; The State v. Durham, 72 N. C. 29. 447. Kansas. — The State v. Ruth, 21 Kan. Tennessee. — Hill v. The State, 3 Heisk. 583. 317. Louisiana. — The State v. Williams, 32 Texas. — Williams w. The State, 1 Texas La. An. 335. Ap. 90 ; Elschlep v. The State, 1 1 Texas Massachusetts. — Commonwealth v. Ap. 301,302; Cornelius w. The State, 13 Scannel, U Cush. 547 ; Commonwealth v. Texas Ap. 349, 352. Sugland, 4 Gray, 7 ; Commonwealth v, Virginia. — Taylor v. Commonwealth, Squires, 97 Mass. 59. 20 Grat. 825. Michigan. — Turner v. People, 33 Mich. i Ante, § 31 , 32. 363, 374. 2 Mass. R. S. c. 125, § 18. Minnesota. — O'Connell u. The State, 6 = Commonwealth v. Fogerty, 8 Gray, Minn. 279. 489. Missouri. — The State v. Hatfield, 72 ^ The State v. Blake, 39 Maine, 322. . Misso. 518; The State v. Meinhart, 73 ^ Unlawfully. — As to when the omis- Misso. 562; The State y. Warner, 74 Misso. sion of the statutory "unlawfully" does 83, 84. not destroy the indictment, Weinzorpflin v. New York. — Goughlemann v. People, The State, 7 Blackf. 186. 3 Parker C. C. 15 ; People v. Jackson, 3 ^ So, in the main, is the form in Com- Parker C. 0. 391. monwealth v. Fogerty, supra. And see. North Carolina. — The State v. Wash- for other illustrations, cases cited in the ington, 2 Murph. 100 ; The State v. Jesse, note to the last section. 499 § 909 SPECIFIC OFFENCES. [BOOK III. an adult, in permitting the omission of some of the common alle- gations for rape, and in requiring others, indicated by the statu- tory terms.^ The statutes differ ; so that the pleader can safely follow a printed form only after comparing it with the enact- ments in his own State. Under the words of 9 Geo. 4, c. 31, § 17, followed with more or less precision in many of our States, " shall unlawfully and carnally know and abuse any girl under the age of ten^ years," the averments may be, — That A, &c. on, &c. at, &c. in and upon one X, a girl ' under the age of ten years, to wit, of the age of nine years,* feloniously did make an as- sault, and her the said X then and there feloniously did unlawfully and carnally know and abuse ; against the peace, &c.* § 908. Another. — The pleader will ysltj this sort of form to suit his particular statute. For example, if the expression is " shall unlawfully and carnally know and abuse any female child under the age of ten years," he will employ the same ■words as the foregoing, except that he will substitute "female child" for "girl."« § 909. Same between Ten and Twelve — (Felony — Misde- meanor). — On the words "shall unlawfully and carnally know and abuse any girl, being above the age of ten years, and under the age of twelve years," the allegations will be similar, if the offence is, as in the other instance, felony. But if it is misde- meanor, "feloniously" will be omitted. And in either case the expression will be varied to cover the different statutory terms. Thus, if misdemeanor, — 1 Stat. Crimes, § 483-491. ^ Archb. 10th ed. ut sup. Similar is 3 * The present English statute substi- Chit. Crim. Law, 815. tntes twelve for ten. 38 & 39 Vict. c. 94, * Commonwealth v. Sullivan, 6 Gray, § 3. Archb. Crim. PI. & Ev. 1 9th ed. 767. 477. For other forms on statutes like those And the age in our States varies. in this section and the last, see Rex v. " Girl — Infant. — The form in Archb. Scott, Euss. & Ry. 415 ; Keg. v. Nicholls, Crim. PI. & Ev. 10th ed. 483, suhstitufes 10 Cox C. C. 476. "infant" for the statutory "girl." So do Alabama. — Johnson v. The State, 50 various other precedents. But the 19th ed. Ala. 456. of Archb. p. 767, employs, what is always California. — People w. Mills, 1 7 Cal. 276. in such cases better, the exact statutory Indiana. — Batterson v. The State, 63 word. Ind. ,531. * Age — To me, the words "to wit, of North Carolina. — The State v. Goings, the age of nine years," seem quite useless. 4 Dev. & Bat. 152. But this manner of allegation is so com- Texas. — Davis v. The State, 42 Texas, mon in the precedents, both English and 226 ; O'Eourke v. The State, 8 Texas Ap. American, that I retain it, though I can- 70. not suppose any pleader would deem it Virginia. — Lawrence i>. Commonwealth, essential. 30 Grat. 845. 500 CHAP. LXXII.] RAPE AND CAKNAL ABUSE. §910 That A, &c. on, &c. at, &c. in and upon one X, a girl above the age of ten years, and under the age of twelve years, to wit, of the age of eleven years,' unlawfully did make an assault, and her the said X then and there did unlawfully and carnally know and abuse ; against the peace, dsc." § 910. Assault with Intent. — The indictment for assault, or assault and battery, with intent to commit a rape or carnal abuse, is within explanations already given.^ The allegations, to be varied if on a statute to cover its terms,* may be, — That A, &c. on, &c. at, &c. in and upon one X {adding, where the age is material,^ a girl (or female child, employing the statutory expression) under the age of, &c.'] au assault did make, and her the said X then and there did beat, bruise, wound, and ill-treat [settings out which may be va- ried with the circumstances, as well as to cover statutory terms],' with intent her the said X violently and against her will feloniously to ravish and carnally know and carnally abuse ; * against the peace, &c.° 1 The observations ante, § 807, note, are equally applicable here. 2 Aichb. Ciim. PI. & Ev. lOtli ed. 484. For othev forms on this sort of statute, see 6 Cox C. C. App. 44, 45 ; Rex v. Miller, 6 Went. PI. 368 ; Reg. v. Johnson, Leigh & C. 632, 10 CoxC. C. 114 ; Reg. v. Ryland, 11 Cox C. C. 101; Reg. u. Itatcliffe, 15 Cox C. C. 127. 8 Ante, § 108-111, 205, 206, 217, 904. 4 Stat. Crimes, § 492-498. 6 Crim. Proccd. II. § 82, 976. 6 Ante, § 904, 907-909. ' Ante, § 201, 202, 206-209. Indiana, ante, § 205. 8 Crim. Proced. II. § 82. In setting out the intent, I have employed an expres- sion which, I think, will cover all cases in a way to satisfy all opinions ; unless there (s a relevant statute in terms not hero con- templated. Still the intelligent pleader will often abridge or vary the expression. " For forms and precedents, see Crim. Proced. II. § 81 ; 3 Chit. Crim. Law, 816, 817; 4 Wont. PI. 73 ; Rex v. Miller, 6 AVent. PI. 394 ; 6 Cox C. C. App. 42-46 ; Reg. V. Oulaghan, Jobb, 270. J/n6amo. — Wetherby v. The State, 39 Ala. 702. Arkansas. — Sullivant o. The State, 3 Eng. 400. California. — People v. Girr, 53 Cal. 629 ; People v. O'Neil, 48 Cal. 257. CcHinec(icu«. — The State fj. Wells, 31 Conn. 210. /oKia.— The State u. Newton, 44 Iowa, 45. Maine. — The State v. Blake, 39 Maine, 322. Massachusetts. — Commonwealth c Lanigan, 2 Law Reporter (Bost), 49; Commonwealth v. Hunt, 4 Pick. 252 ; Commonwealth v. Thompson, 116 Mass. 346. Michigan. — People v. McDonald, 9 Mich. 150 ; People v. Lynch, 29 Mich. 274. Missouri. — McComas v. The State, 11 Misso. 116; The State v. Anderson, 19 Misso. 241 ; The State u. Little, 67 Misso. 624. Nebraska. —¥isk v. The State, 9 Nel». 62, 63. North Carolina. — The State v. Sam, 2 I)ev. 567 ; The State v. Tom, 2 Jones, N. C. 414 ; The State v. Scott, 72 N. a 461 ; The State v. Dancy, 83 N. C. 608. 0/iio. — O'Meara v. The State, 17 Ohio State, 515. Pennsylvania. — Stout v. Common- wealth, 11 S. & R. 177; Mears i/. Com- monwealth, 2 Grat. Pa. 385. Tennessee. — Williams v. The State, 8 Humph. 585 ; Nevills v. The State, 7 Coldw. 78 ; Dillard v. The State, 3 Hoisk. 260 ; Brown v. The State, 6 Baxter, 422. Texas. — Greenlee v. The State, 4 Texas Ap. 345, 346 ; Curry v. The State, 4 Texas Ap. 574, 576 ; Battle v. The State, 4 Texas Ap. 595 ; Sanford v. The State, 12 Texas Ap. 196. Virginia. — Christian v. Commonwealth, 23 Grat. 954. 501 § 914 SPECIFIC OFFENCES. [BOOK III, §911. Another — (PoUowing Statute — "Actual Violence"). — The pleader should bear in mmd the practical importance of fol- lowing the statutory words, instead of seeking substitutes for them.^ Where they were "shall, with actual violence, ra&ke an assault upon the body of any female, with intent to commit a rape," an indictment omitting " actual violence " was sustained, because of other words which were accepted as equivalents.^ Still it would seem better — certainly, it is safer — to adhere to the statutory expression ; and, if the pleader deems the particu- lars of the violence important, set them out also. Thus, — That A, &c. on, &c. at, &c. did, with actual violence, make an assault upon the body of X * [adding, if the pleader is not now satisfied, and there- in did then and there lay hold of her throat, thrust his handlierchief into her mouth, and throw her upon the ground ; or, &c. stating the special fact ■*], with intent lier the said X violently and against her will feloniously to ravish and carnally know \or, some would deem it sufficient to follow here the statutory words, and simply say, with intent feloniously ^ to com- mit upon her the said X a rape ^j ; against the peace, &c.' § 912. Other Attempts. — Though the common method of at- tempt to commit this offence is by assault and violence, it is not legally impossible there should be others.* Particularly, — § 913. By Solicitation. — Where it is felony to have carnal knowledge of a young girl with her consent, plainly, in reason, if the ordinary preliminary step toward it — namely, solicitation — is unsuccessfully made, the indictable attempt is committed.® But for this the forms already given will suffice.^" § 914. Present aiding. — As explained elsewhere," if the hus- 1 Ante, § 906. "feloniously," not saying wliether or not 2 The State u. Wells, 31 Conn. 210 ; it is indispensable. Stat. Crimes, § 494. " On the question of this form of the 2 It is not necessary to add here, "a allegation, consult ante, § 100, 555, 558, female;" or, as expressed in the form in 784; People v. Girr, 53 Cal. 629; Grim. the book, " a single woman." Ante, § 905, Proced. II. § 81, 82, 91. note. Still, it is often done, and some ' Compare with The State o. Wells, pleaders will choose to insert this sort of supra. For another statute and form, see matter. The State v. Newton, 44 Iowa, 45. And * This particularization is introduced see the places referred to in the last see- by way of suggestion, but it does not seem tion. to me necessary. For analogies, consult ^ For example, consult, as suggestive, the foims referred to in the note to the last Reg. v. Martin, 9 Car. & P. 215. section. 9 Crim. Law, 1. § 767-768 d, 772 a. 5 As the offence attempted is felony, i" Ante, § 105, 106, 195, 258, 611. though the attempt is misdemeanor, it 11 Crim. Proced. II. § 6 a, 957. seems to me best to introduce this word 502 GHAP. LXXII.] RAPE AND CARNAL ABUSE. § 914 band of the ravished woman, or if another woman, incapable of committing the offence personally, is present assisting the rav- isher, it is practically the better way, though not legally neces- sary, to charge such person formally as principal in the second degree, not in the first ; thus, — That A, &c. [the principal of the first degree, setting out his offence as at ante, § 905, down to and including "carnally know"] ; and that B, &c. feloniously was then and there present aiding, abetting, and assisting the said A to do and commit the said felony and rape ; against the peace, &c.^ 1 See also for forms and precedents, St. Tr. 401, 406 ; Eex ti. Folkes, 1 Moodj, ante, § 114, 115 ; Rex v. Audley, 3 Howell 354; Reg. v. Crisham, Car. & M. 187. For REAL ESTATE, see Trespass to Lands. RECEIVER OF FELON, see ante, § 114, US. 503 § 916 SPECIFIC OFFENCES. [BOOK IH. CHAPTER LXXIII. BECEIVING STOLEN GOODS.^ § 915. 33iffering Statutes — (Caution). — The pleader should bear in mind, that this is a statutory offence, even when viewed as accessorial to a common-law felony .^ So that every indict- ment for it is on some statute, which, as in other like cases, must be covered by the allegations. And the caution, so often given under other titles, is repeated here, that, as the statutes of our States differ, no pleader should draw an indictment until he has laid before him those of his own State, and the decisions thereon of his own court. § 916. Formula and Forms for Indictment. — There are two methods of drawing the indictment ; the one by first setting out the original larceny, and then charging the receiver substantially in the way common against the accessory after the fact.^ And this is practised, not only when the receiver's offence is treated as accessorial, and both he and the thief are to be arrested and tried on the one indictment, but likewise where only the receiver is meant to be held for the substantive wrong. The other method is to charge simply the receiver's offending as substan- tive, without any setting out of the original stealing. The allegations, to be varied or enlarged with the terms of statutes, may be, — That A, &c. [ante, § 74-77], on, &c. at, &c. [ante, § 80], one, &c. [pro- ceeding as at ante, § 583, down to and incIudiDg " carry away "] ; and that B, &c. [ante, § 74^77], afterward, on, &c. at, &c. [ante, § 80], well know- ' For the direct expositions of the law ced. I. § 60 a, 431, 449, 4SI, 483, 556 ; II. of this offence, with the pleading, evidence, § 747, 750 ; Stat. Crimes, § 345, 413. and practice, see Crim. Law, II. § 1137- = Crim. Law, II. § 1137; Grim. Proced. 1142 a; Crim. Proced. IL § 979 a-991 u. II. § 979 a. Incidental, Crim. Law, I. § 567, 694, 699, s Ante, § 114, 118. 785, 789, 974 ; II. § 327, 885 ; Crim. Pro- 604 CHAP. LXXIII.] RECEIVING STOLEN GOODS. §917 ing the said goods and chattels to have been so as aforesaid feloniously stolen, taken, and carried away,^ did feloniously receive and have the same [o7% what is commonly the better practical method where the prosecution is in fact against the receiver alone for a substantive olfence, That B, &c. on, &c. at, &c. one cow, of the value of, &c. of the property of X (in like manner adding, as in larceny, all the other stolen articles with their owner- ship, and with their value when it will as of law affect the punishment''), then lately before feloniously stolen, taken, and carried away, did, well knowing the same to have been so feloniously stolen, taken, and carried away, feloniously receive* and have] ; against the peace, &c. [ante, § 65-69].* § 917. As to which. — Nothing more than is thus set down is required for the ordinary case. But the pleader should carefully 1 Crim. Proced. II. § 986, where it is seen tliat some statutes requii'e also the allegation of a fraudulent intent. 2 dim. Pieced. II. § 983-985. 3 In some of our States it should be added from whom the articles were received. Crim. Proced. II. § 983. * For forms and pr-ecedents, see Archb. Crim. PI. & Ev. 19th ed. 472,477-479; 3 Chit. Crim. Law, 988-991 ; 6 Cox C. C. App. 3, 4 ; lieg. c. Goldsmith, Law Rep. 2 C. C. 74, 12 Cox C. C. 479 ; Eex v. Mor- ris, 1 Leach, 4th ed. 109 ; Eex v. Hyman, 2 Leach, 4th ed. 925 ; Rex v. Messingham, 1 Moody, 257 ; Reg. v. Wilson, 2 Moody, 52 ; Reg. . The State, 15 Ark. it is common, varying with the special facts. 204 ; The State v. Brewer, 33 Ark. 176. In most instances, I should deem its inser- Indiana. — The States. Weekly, 29 Ind. tiou practically the better way. Compare 206. with ante, § 285 and note, 305, 306. Mssoun'.— The State u.Dnnn, 73 Misso. * Crim. Law, II. § 1257. 586. ' A precedent before me proceeds here : North Carolina. — The State u. Allen, 4 "And, being so assembled and gathered Hawks, 356 ; The State v. Woody, 2 Jones, together, the said [defendants, fee] then N. C. 335. and there unlawfully, riotously, and tumult- Tennessee. — Curlin u. The State, 4 Yerg. uously remained and continued together, 143 ; Simpson n. The State, 5 Yerg. 356 ; making great noises and committing great The State v. Priddy, 4 Humph. 429 ; The violences and disturbances for the space State V. Heflin, 8 Humph. 84 ; Wilson v. of four hours," &c. 2 Chit. Crim. Law, 492. The State, 3 Heisk. 278. Doubtless matter of this sort, often found Texas. — The State v. Billingsley, 43 in the precedents, may in some circum- Texas, 93. stances be judicious, but I am not aware 1 Crim. Law, II. § 1183, 1184, 1257; that it is by any authorities claimed to be Crim. Proced. II. § 995. essential. ^ There must be, at least, three guilty ^ j'or forms and precedents, see 2 Chit, persons to constitute the offence. Crim. Crim. Law, 492, 507 ; Bex v. Haigh, 31 Law, II. § 1256. But, doubtless, where Howell St. Tr. 1092 ; Anonymous, Jebb, only one or two are known or arrested, 155 ; Beatty v. Gilderbanks, 15 Cox C. 0. rules similar to those in conspiracy apply. 138 ; The State v. Edwards, 19 Misso. 674; Crim. Proced. II. § 225. and the part of the various indictments for ° Probably, where three or more persons riot which charges an unlawful assembly. 510 CHAP. LXXVI.] RIOT, ROUT, AFFRAY, ETC. § 929 where no more is ostensibly meant. Yet any indictment for riot is such, if the overt acts set out are only sufficient in law to con- stitute rout ; and, on any indictment for riot, the conviction will be for rout if the proofs are so. There is no need, therefore, to construct for this place a form specially for rout. § 929. Riot. — The indictment, to cover the law of the offence, must, after charging an unlawful assembly as just explained, set out the acts of the assembled persons, " actually accomplishing an object." The further test of the sufficiency of the acts, con- sequently of the allegations, is, that they amount to conduct " calculated to terrify others." ^ The result of which is, that there can be no one form of words for the indictment, but it will vary with the facts of the individual case. Thus, — That A, &c. B, &c. C, &c. D, &c. and divers other persons whose names are to the jurors unknown, on, &c. at, &c. did unlawfully, routously, and riotously assemble and gather together to disturb the public peace ; and, on being so as aforesaid congregated, in and upon one X did then and there unlawfully, routously, and riotously make an assault, and then and there unlawfully, routously, and riotously did beat, bruise, wound, and ill-treat the said X '^ \or, arming themselves with and carrying clubs, pistols, guns, and other offensive weapons, drums, fifes, banners, and other like things, did then and there unlawfully, routously, and riotously march and travel, and make and utter great and loud noises and threatenings, signifying, among other things, the purpose and intent of the said A, B, C, D, and their afore- said associates unlawfully, routously, and riotously to beat and imprison sun- dry and many quiet and peaceable people and destroy their property ; or, the dwelling-house of one X there, while he the said X, his wife, children, and divers other persons of his family were dwelling and actually present therein, did then and there unlawfully, routously, and riotously lay hold of, pull down, and destroy] ; thereby then and there greatly terrifying, alarm- ing,' and disturbing [not only the said X, or the said X and his said wife and family,^ but also] many and all the good and peaceable people there and for a great distance around inhabiting, passing, and being ; * against the peace, &c.° 1 Crim. Law, II. § 1143 ; Crim. Proced. place as public. And see and compare II. § 992, 993. ante, § 782 and note. But such has not ^ Ante, § 201. been the course of the precedents, nor do ' Crim. Law, II. § 1147, 1148; Crim. the books lay it down as an clement in Proced. II. § 997. riot that the place be public. So the ques- * To be employed where, as in a part tion may be deemed concluded by author- of the instances above, the name of X has ity. Affray is a less heavy disturbance of been introduced. the public order. Eiot is an aggravated ' Public Place. — An argument of wrong, in the nature of nuisance, punish- some force could be made to show that the able wherever committed, indictment should, as in affray, set out the ° For forms and precedents, see Archb. 611 § 930 SPECIFIC OFFENCES. [book III. § 930. Practical Suggestions. — The foregoing expositions and forms, if consulted in connection with the other volumes of this series, and the statutes and decisions of one's own State, will give the practitioner all the help of which the nature of these offences admits. Still he should bear in mind that, the facts being widely diverse, in some degree changing, and so in each successive case in a measure new, his strength consists in a mastery of the prin- ciples which govern the subject, and a skilful adaptation of them to the facts of the special instance. Crim. PI. & Ev. 19th ed. 900, 902, 904; 2 Chit. Crim. Law, 58, 485-507 ; 4 Went. PI. 150, 309, 311, 312, 400-405; 6 Cox C. C. App. 25, 35, 72, 73 ; 10 lb. App. 49 : Rex V. W. M. Trem. P. C. 180 ; Rex v. Wilts, Trem. P. C. 181; Rex ^. Pilking- ton, Trem. P. C. 182 ; Rex v. Strode, Trem. P. C. 186 ; Rex w. Sherley, Trem. P. 0. 178 ; Rex v. Pilkington, 9" Howell St. Tr. 187, 219 ; Rex v. Sacheverell, 10 Howell St. Tr. 30 ; Reg. v. Hathaway, 14 Howell St. Tr. 690 ; Rex v. Maskall, 21 Howell St. Tr. 653 ; Rex u. Bangor, 26 Howell St. Tr. 463 ; Rex v. Thanet, 27 Howell St. Tr. 822 ; Reg. v. Gulston, 2 Ld. Raym. 1210 ; Rex v. Scott, 3 Bur. 1262 ; Rex v. Royee, 4 Bur. 2073 ; Ker- shaw's Case, 1 Lewin, 218 ; Rex v. Hughes, 4 Car. & P. 373 ; Reg. v. Atkinson, 11 Cox C. C. 330. Arkansas. — Roberts v. The State, 21 Ark. 183; The State v. Webster,' 30 Ark. 166. Georgia. — Holt v. The State, 38 Ga. 187 ; Burden v. The State, 52 Ga. 664. itfi'nois. — Gould V. People, 89 111. 216; Logg V. People, 92 111. 598. Indiana, — The State v. Dillard, 5 Blackf. 365 ; The State c. Scaggs, 6 Blackf. 37 ; Conwell v. The State, 3 Ind. 387 ; The State v. Voshall, 4 Ind. 589 ; The State v. Brown, 69 Ind. 95. Maine. — The State v. Boies, 34 Maine, 235. Massachusetts. — Commonwealth u. Twombly, Thaeher Crim. Cas. 222 ; Com- monwealth V. Runnels, 10 Mass. 518 ; Commonwealth v. Tracy, 5 Met. 536 ; Commonwealth v. Gibney, 2 Allen, 150. Missouri. — The State u. McCourtney, 6 Misso. 649; Mc Waters u. The State, 10 Misso. 167. New Hampshire. — The State v. Berritt, 17 N. H. 268; The State v. Russell, 45 N. H. 83. Nojih Carolina. — The State v. Martin, 3 Murph. 533 ; The State a. Sigmon, 70 N. C. 66. United States. — District of Columbia. United States v. Stockwell, 4 Cranch C. C. 671 ; United States v. Fenwick, 4 Cranch C. C. 675. 612 For RIVER, see Wat. ROAD, see Wat. CHAP. LXXVII.] EOBBERT. § 933 CHAPTER LXXVII. § 931. Elsewhere. — Robbery being a larceny compounded with certain elements principally of violence,^ the forms and exposi- tions under the title " Larceny " should be consulted, and by the pleader laid before him as a part of this chapter, § 932. How the Indictment. — Therefore the indictment is sim- ply the common-law one for larcenj'^, with, interwoven into it, averments of the facts which elevate the offence to robbery. Such matter will be what the common law supplies, or what a statute has specified, according as the proceeding is on the one or the other ; and, in either case, the terms of the law must be duly covered.^ Yet we shall see, that, where it is on the com- mon law, the ordinary forms cover those terms less exactly than might seem desirable. Thus, — § 933. Formula and Forms. — Following, for formula, the com- mon-law precedents, with suggestions of expansions or variations to cover particular terms of the law, we have, — That A, &c. [ante, § 74-77], on, &c. at, &c. [ante, § 80], did [here is one of the places available for adding statutory aggravations ; as, for ex- ample, on a certain highway there, or in the dwelling-house of one X there,* or being armed with a certain deadly weapon, to wit, a pistol loaded with gunpowder and ball], in and upon one X feloniously make an assault,^ and him the said X did then and there feloniously put in bodily fear and danger of his life [or, &c. covering the elements of the offence by any more exact expression °], and one pocket handkerchief of the value of twenty- 1 For the direct expositions of this of- " Criin. Law, II. § 892, 1156. fence, with the pleading, practice, and evi- ' Crim. Proced. II. § 1002. dence, see Crim. Law, II. § 1156-1182; * Some of the precedents repeat this Crim. Proced. II. § 1001-1008. Incidental, sort of matter at various places further on. Crim. Law, I. § 329, 358, 361, 438, 553, 3 Chit. Crim. Law, 806, 807. The neces- 566, 582, 635, 744, 748, 985, 1055, 1063, sity for it seems, in principle, doubtful. 1064 ; II. § 892 ; Crim. Proced. I. § 408, » Compare with ante, § 201, 205. 409, 437, 488 e, 553, 1006, 1086 ; II. § 84, " Assault is an element nearly if not 85 ; Stat. Crimes, § 242, note, 320. absolutely universal in robbery, for which 33 513 933 SPECIFIC OFFENCES. [book ni. five cents, &c. [setting out all the stolen articles as in ordinary larceny], all of the property of the said X, from the person and against the will of the said X, then and there feloniously and violently did steal, take, and carry away ; against the peace, &c. [ante, § 65-69].^ and other reasons one would choose always to allege it, even should he deem the draw- ing of a good indictment possible without. But actual fear, whatever we hold of con- structive fear, is not essential ; for example, violence, where no particle of fear is ex- cited, will suffice. Crim. Law, II. § 1156, 1166-1176. Yet the standard form for the indictment is silent as to this sort of rob- bery, and makes the pleader always say, regardless of the fact, that the assaulted person was " put in bodily fear and danger of his life." There appears to be no tech- nical rule requiring this averment contrary to the truth. Crim. Proced. II. § 1005. Tet no pleader can be blamed for choosing the safe and beaten path, instead of encoun- tering dangers atid possible disaster in a new road. Eor the aid of any who prefer dan- ger and right to safety and wrong, the following, wherein, in order to meet the dif- fering aspects of cases,'more is set down than is essential to constitute the offence, is suggested : — That A, &c. on, &c. at, &c. did feloni- ously make an assault on one X, and him the said X did then and there feloniously by vio- lence overcome and put in fear, and from the person of him the said X did then and there feloniously and violently against his will steal, take, and carry away, of the property of the said X, one watch, of the value of fifty dollars ; a^^ainst the peace, &c. ' For forms and precedents, see Crim. Proced. II. § 1002 ; 3 Chit. Crim. Law, 806-810 ; 4 Went. PI. 51 ; 6 Cox C. C. App. 18, 29 ; Rex v. Gascoigne, 1 Leach, 4th ed. 280 ; Rex v. Pelfryman, 2 Leach, 4th ed. 563 ; Eex v. Monteth, 2 Leach, 4th ed. 702 ; Reg. v. Reid, 2 Den. C. C. 88, 5 Cox C. C. 104 ; Reg. v. Mitchell, 2 Den. C. C. 468, Dears. 19, 3 Car. & K. 181, 5 Cox C. C. 541 ; Reg. v. Ferguson, Dears. 427, 6 Cox C. C. 454 ; Lennox's Case, 2 Lewin, 268 ; Rex tf. Rogan, Jebb, 62 ; Reg. v. Huxley, Car. & M. 596 ; Reg. ». Jerrett, 22 U. C. Q. B. 499. Alabama. — Crocker v. The State, 47 Ala. 53 ; Wesley v. The State, 61 Ala. 282. Arkansas. — Clary v. The State, 33 Ark. 561, 562. 614 California. — People v. Vice, 21 Cal. 344 ; People v. Shuler, 28 Cal. 490 ; Peo- ple V. Nelson, 56 Cal. 77. Georrjia. — Long v. The State, 12 Ga. 293 ; Stegar v. The State, 39 Ga. 583. Illinois. — ConoUy v. People, 3 Scam. 474, 478 ; Collins v. People, 39 111. 233. Indiana. — Arnold v. The State, 52 Ind. 281 ; Shinn v. The State, 64 Ind. 13; Buntin v. The State, 68 Ind. 38; Davis V. The State, 69 Ind. 130 ; Dickinson v. The State, 70 Ind. 247, 250. Iowa. — The State v. Carr, 43 Iowa, 418, 420. Kansas. — The State v. Harnett, 3 Kan. 250, 252. Louisiana. — The State v. Robinson, 29 La. An. 364. Maryland. — Hollohan v. The State, 32 Md. 399. Massachusetts. — Commonwealth v. Humphries, 7 Mass. 242 ; Commonwealth i;. Martin, 17 Mass. 359 ; Commonwealth V. Gallagher, 6 Met. 565 ; Commonwealth v. Clifford, 8 Cush. 215 ; Commonwealth u. Sanborn, 14 Gray, 393 ; Comraonweath ». Mowry, 11 Allen, 20; Commonwealth v. Griffiths, 126 Mass. 252. Mississippi. — Greeson v. The State, 5 How. Missis.' 33. Missouri. — The State v. Davidson, 38 Misso. 374 ; The State v. Wall, 39 Misso. 532 ; The State v. Howerton, 59 Misso. 91. Nevada. — The State v. Chapman, 6 Nev. 320. New Hampshire. — The State v. Gor- ham, 55 N. H. 152. New York. — Quinlan v. People, 6 Par- ker C. C. 9 ; People v. Hall, 6 Parker C. C. 642. North Carolina. — The State v. John, 5 Jones, N. C. 163. Tennessee. — The State v. Freels, 3 Humph. 228 ; Kit v. The State, 11 Humph. 167 ; McTiguc v. The State, 4 Baxter, 313, 315. jTeroji. — Bell v. The State, 1 Texas Ap. 598; Barnes v. The State, 9 Texas Ap. 128 ; Parker v. The State, 9 Texas Ap. 351, 352 ; Williams v. The State, 10 Texas CHAP. LXXVII.] EOBBEEY. § 937 § 934. On Statutes. — In a considerable proportion of our States the common-law form, as presented in the last section, sufficiently covers the statutory terms; and, in most of the others, the variations required to bring the allegations within the statute are obvious.^ To illustrate, — § 935. Being Armed, &c. — A statute makes punishable one who "assaults another, and feloniously robs, steals, and takes from his person money or other property which may be the sub- ject of larceny, such robber being armed with a dangerous weapon, with intent if resisted to kill or maim the person robbed-, or being so armed wounds or strikes the person robbed." Ob- viously the former part of this provision points to robbery as defined by the common law, and the latter creates an aggravation in the alternative. Therefore the pleader will naturally and properly follow the common-law form, and introduce the matter of aggravation at the place already indicated,^ or at such other place as suits his convenience or taste. A form judicially sus- tained is, in substance, — That A, &c. on, c&c. at, &c. in and upon one X an assault did feloniously make, and him the said X in bodily fear and danger of his life did then and there feloniously put, and, &c. [setting out the things taken as in simple larceny], from the person and against the will of the said X, then and there by force and violence did feloniously rob, steal, take, and carry away ; and that the said X was then and there armed with a certain dan- gerous weapon, to wit, metallic knuckles, and being so armed the said A then and there did strike and wound ; against the peace, &c.° § 936. Degrees. — In a few of the States there are statutes creating degrees in robbery. Their terms are not quite uniform. And, as they are not of general prevalence, it will suffice simply to refer to places where precedents for the indictment may be found.* § 937. Assault with Intent. — It would be difficult to distin- guish between an assault with intent to commit larceny from the Ap. 8 ; Mathews v. The State, 10 Texas Conolly v. People, 3 Scam. 474, 478 ; Col- Ap. 279, 282 ; Scott v. The State, 12 Texas lins v. People, 39 111. 233. Ap. 31. ^ Ante, § 933. Virginia. — Hardy v. Commonwealth, » Commonwealth v. Mowry, 11 Allen, 17 Grat. 592. 20. And compare with Commonwealth n. United Slates. — United States v. Terrel, Sanborn, 14 Gray, 393 ; Commonwealth v. Hemp. 41 1 ; United States v. Jackalow, 1 Gallagher, 6 Met. 565. Black, 484, on high seas. * Qninlan v. People, 6 Parker C. C. 9 ; 1 See, for examples of forms on statutes, The State v. Howerton, 59 Misso. 91 ; The State V. Barnett, 3 Kan. 250, 252. 515 § 938 • SPECIFIC OFFENCES. [BOOK III. ^rson, and an assault with intent to rob ; because the actual stealing of valuables from the person by assault is robbery. The indictment, whether ostensibly for the one or the other, may charge, — That A, &c. on, &c. at, &c. in and upon one X [then and there being*] feloniously ^ did make an assault, with intent the moneys, goods, and chat- tels of the said X, from the person and against the will of him the said X, then and there feloniously and violently to steal, take, and carry away ; against the peace, &c.' § 938. Practical Suggestions. — The only difficulty which the pleader will encounter under this title will be in duly covering statutes the terms whereof differ from those of the common law. In this, he is required simply to exercise care. For methods, let him consult the suggestions in an early chapter.* 1 In the form before me, but unneces- monwealth v. Sanborn, 14 Gray, 393 ; aary. Ante, § 201, 582. Scott v. The State, 12 Texas Ap. 31. In- ^ "Feloniously " at this place, not where diana. — The peculiar manner of aTerring it occurs further on, to be omitted if the an assault in Indiana has already been ex- offence is not felony. plained. Ante, § 205. A form before me ' Reg. V. Ferguson, Dears. 427, 6 Cox sets out the assault according to such C. 0. 454 ; Reg. v. Huxley, Car. & M. 596 ; method, and proceeds : " with intent forci- Archb. Crim. PI. & Ev. 19th ed. 458. The bly and feloniously, by yiolence and putting word " rob " is not necessary. lb. For him [X] in fear, to take from his person other forms and precedents, see 3 Chit, the goods and chattels of him the said X." Crim. Law, 807, 809 ; 6 Cox C- C. App. Buntin v. The State, 68 Ind. 38. And 18, 29 ; Rex v. Monteth, 2 Leach, 4th ed. see, for allegations more elaborate, Dickin- 702 ; The State v. Freels, 3 Humph. 228 ; son v. The State, 70 Ind. 247, 250. Hollohan i-. The State, 32 Md. 399 ; Com- * Ante, § 31-36. monwealth v. Gallagher, 6 Met. 565 ; Com- For ROBBERY ON SEA, see Pieact. ROUT, see Riot, &c. SABBATH, see Lord's Dat. SCOLD, see Common Scold, ante, § 791, 792. SECOND OFFENCE, .see ante, § 91-97. 516 CHAP. LXXVIII.] SEDITION. § 942 CHAPTER LXXVIII. SEDITION.! § 939. This Chapter — Elsewhere — (label). — A form of indict- ment for libel on the government having already been given,^ the sorts of sedition which remain for this chapter are, whether with- in our American law of crimes or not, such as in modern times are seldom brought into the courts. So it will suffice simply to refer to places where precedents of the indictment therefor may be found. Thus, — § 940. By Oral "Words. — Inc^ictments for every class of oral words® are less in repute and practice than formerly, whatever the strict law may now be. Precedents for seditious words appear at the places cited in the note.* § 941. Seditious Conspiracies. — Precedents of the indictment for these are referred to in the note.* § 942. In Nature of Treason. — The precedents cited to the last section are mostly of this sort. There are others.® 1 Crira. Law, I. § 457 and notej ante, Trem. P. C. 39 ; Eex v. Trenchard, Trem. § 621. P. C. 40 ; Rex u. Wildman, Trom. P. C. 2 Ante, §621. 43; Rex i/. Walker, 23 Howell St. Tr. ' Ante, § 241, 243, 244, 632-635. 1055, 1078 ; Rex u. Redhead, 25 Howell * 2 Chit. Crim. Law, 94-98 ; 3 lb. 881 ; St. Tr. 1003 ; Rex v. Hunt, 3 B. & Aid. Rex V. Colemer, Trem. P. C. 58 ; Rex v. 566 ; Reg. v. Vincent, 9 Car. & P. 91 ; Snow, Trem. P. C. 59 ; Rex v. Edes, Trem. Reg. v. Vincent, 9 Car. & P. 275 ; Reg. v. P. C. 61 ; Rex v. Wetwang, Trem. P. C. Shellard, 9 Car. & P. 277 ; Reg. v. Dow- 64 ; Rex v. Sorocold, Trem. P. C. 64 ; Rex ling, 3 Cox C. C. 509 ; to join ihe re- V. Harris, Trem. P. C. 65 ; Rex v. Harvey, hellion, Commonwealth v. Blackburn, 1 Trem. P. C. 66 ; Rex v. Elliot, 3 Howell Duv. 4. St. Tr. 293, 320 ; Rex v. Frost, 22 Howell « Rex v. Hampden, 9 Howell St. Tr. St. Tr. 471 ; Rex v. Briellat, 22 Howell St. 1054. In deposing a governor in India, Tr. 909; Rex v. Binns, 26 Howell St. Tr. Rex v. Stratton, 21 Howell St. Tr. 1045, 595 ; Reg. v. O'Neill, 1 Car. & K. 138 ; In 1049. Advancing money to assist rebel- re Crowe, 3 Cox C. C. 123 ; Reg. v. Fus- lion. Rex o. Blake, Trem. P. C. 41. Giv- sell, 3 Cox C- C. 291. ing aid to enemies of United States, People ' Rex I'. Hayes, Trem. P. C. 5 ; Eex v. v. Lynch, 11 Johns. 549. Illegal military Bradden, Trem. P. C. 35 ; Rex v. Hamp- drill, &c. Presser v. People, 98 111. 406 ; den, Trem. P. C. 37 ; Rex v. Gerrard, Reg. v. Hunt, 3 Cox C, C. 215 ; Gogarty Trem. P. C. 38 ; Rex v. Macclesfield, v. Reg. 3 Cox C. C. 306. 517 944 SPECIFIC OFFENCES. [BOOK III. CHAPTER LXXIX. SEDUCTION AND ABDUCTION OF WOMEN.^ § 943. Common Law and Statutes. — For reasons explained in " Statutory Crimes," all our indictments for these offences are practically on the statutes of the respective States, whatever be the true view as to some old English enactments being, or not, common law with us."'* Our statutes are in varying terms, nor do they present any clear line of demarcation between the two offences of seduction and abduction. There is nothing practical in the distinction, so no attempt^will be made to preserve it in this chapter. § 944. Formula for Indictment. — It is not possible to construct a formula which, in any minute way, will serve as a guide on statutes so varying as these. But, subject to be modified and enlarged to cover the statutory terms, the allegations may be, — That A, &c. [ante, § 74^77], on, &c. at, &c. [ante, § 80], did unlawfully make an assault on one X [ante, § 79], a girl, &e. [or, &c. employing the statutory expression, and stating her age and whatever else the statute specifies], and, &c. [describing the defendant's farther act in the statutory words ; or, going further back, say, did unlawfully take, &c. from, &c. for the purpose, &c. or otherwise adhering to the statutory terms] ; against the peace, &c. [ante, § 65-69].* 1 For jthe direct expositions of these of- 559 ; Keg. o. Baynton, 14 Howell St. Tr. fences, with the pleading, evidence, and 597 ; Reg. o. Timmins, Bell, 276, 8 Cox practice, see Stat. Crimes, § 614-652. Col- C. C. 401; Reg. v. Bnrrell, Leigh & C. lateral, Crim. Law, I. § 555 ; Crim. Pro- 354, 355, note ; Reg. v. Hopkins, Car. & ced. I. § 54, 1106; XL §244; Stat. Crimes, M. 254; Reg. v. Meadows, 1 Car. & K. §215,715. 399; Reg. v. Robins, 1 Car. & K. 456; 2 Stat. Crimes, § 616-618, 622, 627- Reg. v. Robb, 4 Fost. & F. 59; Reg. v. 629. Biswell, 2 Cox C. C. 279 ; Reg. v. My- 8 For forms and precedents, see Archb. cock, 12 Cox C. C. 28 ; Rex v. Browne, Crim. PI. & Ev. 19th ed. 756, 758, 761, Jebb, 21. 766 ; 3 Chit. Crim. Law, 818 ; 6 Cox C. C. Arkansas. — Cheaney v. The State, 36 App. 78, 97, 98 ; Rex v. Campbell, Trem. Ark. 74. P. C. 34 ; Rex u. Aleway, Trem. P. C. California. — People v. Roderigas, 49 214 ; Rex u. Baxter, Trem. P. C. 265 ; Cal. 9. Reg. V. Swendsen, 14 Howell St. Tr. Georgia. — Wood v. The State, 48 518 CHAP. LXXIX.] SEDUCTION AND ABDUCTION. § 946 § 945. Taking out of Possession. — On a provision to punish one who " shall unlawfully take or cause to be taken any unmar- ried girl, being under the age of sixteen years, out of the posses- sion and against the will of her father or mother, or of any other person having the lawful care or charge of her," ^ the allegations may be, — That A, &c. on, &c. at, &c. unlawfully did take [and cause to be taken ^] X out of the possession and against the will of Y her father, she the said X then and there being an unmai'ried girl, under the age of sixteen years, to wit, of the age of fifteen years ; against the peace, &c.' § 946. Seducing by Fraud. — There is a statute making punish- able one who " shall, by false pretences, false representations, or other fraudulent means, procure any woman or girl under the age of twenty-one years to have illicit carnal connection with any man."* The indictment, on terms like these, should follow the analogies of that on the statutes against cheating by false pretences.^ Thus, — That A, &c. on, &c. at, &c. did unlawfully and falsely pretend and repre- sent to one X, a woman under the age of twenty-one years, that, &c. [set- ting out the false representations], whereas, in truth and in fact, &c. [nega- tiving them as in false pretences] ; by means of which false pretences and false representations, he the said A did then and there procure the said X to have illicit carnal intercourse with himself* [or, with one Y, or, with a man whose name is to the jurors unknown] ; against the peace, &c.^ Ga. 192; Hopper v. The State, 54 Ga. Virginia. — Anderson v. Common- 389. wealth, 5 Rand. 627. Indiana. — Osborn v. The State, 52 Wisconsin. — West v. The State, 1 Ind. 526 ; Callahan v. The State, 63 Ind. Wis. 209. 198. 1 The English 24 & 25 Vict. .;. 100, Zoioa. — Andre v. The State, 5 Iowa, §55; Stat. Crimes, § 631. 389; Tlie State v. Curran, 51 Iowa, ^ In the form before me; but, though 112, harmless, it is quite as well omitted. Ante, Kansas. — The State w. Buffington, 20 § 139 and note, 621 and note, 764 and Kan. 599. note. Minnesota. — The State v. Gates, 27 » Stat. Crimes, § 644; Archb. Crim. Minn. 52. PI- & Ev. 10th ed. 477, 19th ed. 758 ; Reg. New York. — Carpenter ». People, 8 v. Robins, 1 Car. & K. 456 ; Reg. v. Bis- Barb. 603 ; Cro/.ier v. People, 1 Parker well, 2 Cox C. C. 279 ; Rex o. Baxter, C. C. 453, 454 ; Grant v. People, 4 Parker Trem. P. C. 265. Compare with ante, C. C. 527 ; People v. Kenyon, 5 Parker § 735. C. C. 254 ; People v. Parshall, 6 Parker * Eng. 24 & 25 Vict. u. 100, § 49. C. 0. 129. ^ Ante, § 420. Pennsylvania. — Dinkey v. Common- * Stat. Crimes, § 642 a. wealth, 5 Harris, Pa. 126. ' Compare with Archb. Crim. PI. &Et. South Carolina. — Ihe State v. Tidwell, 19th ed. 766 ; Reg. v. Mears, 2 Den. C. C. 5 Strob 14 79-4 Cox C. C. 423 ; 6 Cox C. C. App. 519 § 949 SPECIFIC OFFENCES. [BOOK m. § 947. Married Man and Chaste 'Woman. — On a statute EQaking punishable " any unmarried man, who, under promise of marriage, or any married man, who shall seduce and have illicit connection with any unmarried female of previous chaste character," the allegations against the married man may be, — That A, &c. on, &c. at, &c. being a married maD, did then and there unlawfully seduce and have illicit connection with one X, who was then and there an unmarried female of previous chaste character ; against the peace, &c.^ § 948. Seduce and Debauch. — " If any person seduce and de- bauch any unmarried woman of previously chaste character, he shall be punished," &c. The indictment may aver, in the words of the statute, or not greatly expanding them, — That A, &c. on, &c. at, &c. did unlawfully seduce, debauch, and carnally know one X, who was -then and there an unmarried woman of previously chaste character ; against the peace, &c.^ § 949. Under Marriage Promise. — The terms of the statutes punishing seduction under promise of marriage differ, and the averments should vary with them. By one statute : " Any man who shall, under promise of marriage, seduce and have illicit con- nection with any unmarried female of previous chaste character shall be guilty of a misdemeanor." ^ On this the allegations may be, — That A, &c. on, &c. at, &c. did unlawfully, under and by means of a, promise of marriage by him made to one X, who was then and there an unmarried female of previous chaste character, seduce and have illicit intercourse with her the said X ; against the peace, &c.* 78. House of lU Fame. — For enticing a legal acceptation, they import the idea of female to a house of ill fame, see People v. illicit intercourse, accomplished by arts, Roderigas, 49 Cal. 9. promises, or deception, and have no other 1 West K. The State, 1 Wis 209. meaning." p. 113, 114. Still, as the stat- 2 Andre v. The State, 5 Iowa, 389 ; ute, interpreted, requires an actual carnal The State v. Curran, 51 Iowa, 112. So, commerce, I should prefer to retain "ear- in substance, are these precedents, adding nally know" in the allegation, even though " carnally know " to the statutory terms. I might deem that, the court would sustain The observations in the latter case strongly the indictment without these words. They imply that this addition is unnecessary, make all certainly plain. Said Adams, J. : " The words ' seduce ' ^ Kenyon «. People, 26 N. Y. 203, 207. and • debauch,' when used in connection, « For precedents, see Crozier v. People, do, we think, necessarily charge the offence. 1 Parker C. C. 453, 454 ; Grant v. People, It cannot be said that they need, when used 4 Parker C. C. 527 ; People t. Kenyon, 5 in connection, to be helped out by a legal Parker C. C. 254. For a form under stat- conclubion. In their common as well as utory words slightly different, see Callahan 520 CHAP, LXXIX.J SEDUCTION AND ABDUCTION. §951 § 950. Another. — Where, by the statutory terms, the offence is committed by " any person " " obtaining carnal knowledge of any female by virtue of any feigned or pretended marriage, or of any false or feigned express promise of marriage," allegations adjudged good are, — That A, &c. on, &c. at, &c. [being a single and unmarried man^], un- lawfully [and feloniously ^] did obtain carnal knowledge of one X, a [single and unmarried '] female, by virtue of a false express promise of marriage to her previously made by the said A ; against the peace, &c.* § 951. Other Torms — may occasionally be required, but none for which the foregoing will not furnish ample analogies.^ V. The State, 63 Ind. 198. And see the form in Hopper v. The State, 54 Ga. 389. 1 In the form before me. But, as the statute does not require the defendant to be unmarried, there is no just ground for supposing the allegation to be necessary. See Stat. Crimes, § 638. 2 The pleader should avoid using this word " feloniously " unless the offence is in fact felony. It is misdemeanor in most of our States. I have not observed how it is in Arkansas. 8 This expansion beyond the statutory words is simply less questionable than the former one. Evidently, if the woman is married, the offence becomes impossible; because the man's promise of a marriage which she knows cannot take place will be no inducement to the yielding up of her person. Stat. Crimes, § 638. Still, as the indictment is required only to set out a prima facie case (Grim. Proce'd. I. § 326), and the fact of the woman's marriage would be mere matter of defence, it is difficult to discern any necessity for thus negativing in allegation such defence. * Cheaney v. The State, 36 Ark. 74. 5 In Violation of Trust. — For a form for having carnal knowledge of a female child committed to the defendant's care, see The State v. BufSngton, 20 Kan. 599. 621 § 952 SPECIFIC OFFENCES. [BOOK III. CHAPTER LXXX. SBLF-MUEDEE.l § 952. Principal of Second Degree. — Though one who has com- mitted suicide cannot be reached by legal process, another who stood by abetting him can be. The latter is subject to the same consequences as though the victim had been a third person.^ The violence which the deceased inflicted on himself may be charged as done by the living accomplice, and the indictment need not differ from any ordinary one against a principal in the first degree for murder.^ Perhaps this is the better method of laying the offence ; but, as it may confuse an unlearned jury, some pleaders will choose to allege, according to the real fact, — That A, late of, &c. [ante, § 74-77], on, cfec. at, &c. [ante, § 80], in and upon himself feloniously and of his malice aforethought did make an as- sault ; and, with a certain knife which he the said A then and there had and held in his right hand, himself, in and upon the throat of him the said A, did then and there feloniously and of his malice aforethought strike and cut, then and there giving to himself, with the said knife, in and upon the throat, one mortal wound, of which said mortal wound the said A, from the said, &c. until, &c. then next following, at, &c. aforesaid, did languish, and languishing did live ; and, on the day last aforesaid, at, &c. aforesaid, of the said mortal wound did die. And so the said A, in manner and form aforesaid,^ feloniously and of his malice aforethought, and as a felon of himself, did kill and murder himself.^ And that B, &c. [the defendant], on, &c. aforesaid [the day of inflicting the wound], at, &c. aforesaid, was feloniously and of his malice aforethought present, aiding, inciting, and abetting the said A to do and commit, in and upon himself, the said felony and murder ; against the peace, &c. [ante, § 65-69].° 1 For the direct expositions of this of- And see Commonwealth v. Bowen, 13 fence, see Crim. Law, II. § 1187. In- Mass. 356. cidental, I. § 259, 510, 511, 615, 652, * Ante, § 520. 968. 6 This is, in substance, and omitting 2 lb. I. § 510, 511, 652 ; II. § 1187. most of the surplusage, the form in Rex v. 3 Crim. Proeed. II. § 3; ante, § 115. Sutton, 1 Saund. 269. And compare with For precedents, see Eex i-. Dyson, Russ. & ante, § 520. Ey. 523; Reg. v. Alison, 8 Car. & P. 418. 6 Ante, § 114, 115, 539. 522 CHAP. LXXX.] SELP-MUEDEE. § 954 § 953. Accessory Before. — Under the unwritten law, the ac- cessory before the fact — that is, one who advises to or procures the means for a suicide which is afterward committed in his ab- sence — cannot be proceeded against.^ Put it is believed that, in some of our States, he is punishable by the terms or by the legal effect of statutes. Where he is, it will be a convenient method, though doubtless there will be others permissible,^ to charge the act of the self-murdered person as in the last form ; and, for what follows, substitute, — And that B, &c. before the commission by the said A of the aforesaid felony and murder in and upon himself in manner and form aforesaid, did, on, &c. at, &c. feloniously and of his malice aforethought counsel, move, cause, and aid the said A the same in manner and form aforesaid to do and commit ; against the peace, &c.* § 954. Attempt. — One's unsuccessful attempt at self-murder is generally understood to be an indictable misdemeanor at the common law, though it is not within every statute against at- tempted murder.* To charge simply that the defendant " did attempt," not further specifying his act, is not sufficient.^ The allegations may be, — That A, &c. on, &c. at, &c. did unlawfully, with a certain knife which he then and there had and held, make an assault on himself, and did then and there with said knife cut two several, deep gashes and wounds in and upon his throat, with the intent himself then and there feloniously and of his malice aforethought to kill and murder ; against the peace, &c.° 1 Crim. Law, I. § 652 ; 11. § 1187. generally with us be deemed good. It 2 Ante, § 916. charged,— 8 Ante, § 114, 116, 539. And compare That A, &o. on, &c. at, &c. unlawfully with Commonwealth v. Bowen, 1.3 Mass. and wilfully did attempt and endeavor to 356 ; Kex v. Eussell, 1 Moody, 356. commit a certain felony, that is to say, did •* Crim. Law, II. § 1187. then and there unlawfully and wilfully at- 6 Crim. Proced. II. § 88. In Reg. v. tempt and endeavor feloniously, wilfully, and Burgess, Leigh & C. 258, 9 Cox C. C. 247, °^ '*'* maXice aforethought to kill and murder the indictment did not satisfy this rule, and ''''"'«" ^"^^ ^^^^ ^ ' ^S"'"^' ">« P«a<:e. &c- the conviction was affirmed. But the point ^ And see, for another form, 5 Cox was not raised. Certainly it would not C. C. App. 92. For SELLING ADULTEEATED LIQUORS, see ante, § 771. SELLING ADULTERATED MILK, see ante, § 770. SELLING LIQUOR, see Liqtjok Keeping and Selling. SELLING UNWHOLESOME FOOD, see Noxious and Adulterated Food. 523 § 956 SPECIFIC OFFENCES. [BOOK lU. CHAPTER LXXXI. SEPUIiTTJRE.^ § 955. Leaving Unburied. — For the nuisance of rendering the air offensive by leaving unburied a dead body, in violation of the defendant's duty to bury it, the indictment may be constructed as already explained.^ § 956. Dissecting, instead of Burying. — Where a dead body is sold or otherwise disposed of for dissection, there is commonly a conspiracy,^ a prosecution for which may be more available than for the misdemeanor in any other form. Or the indictment at common law, following in substance a precedent from one of the reports, may be, — That on, &c. at, &c. [ante, § 80], one X was publicly executed,* and then and there A, &c. [ante, § 74-77], an undertaker, was retained and employed by Y, the keeper of the jail in and for said county, on behalf of said county, to bury, for a certain reward to be thereafter paid him, the dead body of the said executed person ; in pursuance whereof, the said dead body was then and there delivered to and received by the said A for the purpose aforesaid [and it then and there became the duty of the said A to bury the same accordingly '], but the said A [being an evil-disposed person, and of a most wicked and depraved disposition, and having no regard to his said duty, nor to religion, decency, morality, or the laws of this realm "], did not nor would bury the said body, but, on, &c. at, &c. 1 For the law of this title, with the plead- 8 Ante, § 312, note ; 2 Chit. Crim. Law, ing, evidence, and practice, see Crim. Law, 36. II. § 1188-1190; Crim. Proced. II. § 1009- » I think I should prefer to add here 1012. Incidental, Crim. Law, I. § 468, " in the common jail there," or something 506; IL § 228, 780; Stat. Crimes, of the sort; though it i.s not in the form § 156. before me, and is probably not necessary. ^ Ante, § 810-816. And for a form see ^ !„ the form before me. It is one of Reg. V. Vann, 2 Den. C. C. 325, 331, 5 those allegations of a conclusion of law Cox C. C. 379. For a form for preventing which we have many times in this volume burial by usurping the office of coroner, see seen to be unnecessary. For example, ante, § 848. For burying without notice ante, § 407, note, to coroner, lb., note. 6 Unnecessary. Ante, § 45, 46. 624 CHAP. LXXXI.] SEPTTLTUEB. § 958 unlawfully and wickedly [and for the sake of wicked lucre and gain *] did take and carry away the said dead body, and did sell and dispose of the same for the purpose of being dissected, cut to pieces, mangled, and destroyed ; [to the great scandal and disgrace of religion, decency, and morality, in contempt of, &c. to the evil example of all other persons in like cases offending,^ and] against the peace, &c. [ante, § 65-69].' § 957. Disinterring — (At Common Law). — Omitting from a common English form most of the surplusage, and otherwise adapting it to our use, we have, — That A, &c. on, &c. at, &c. did unlawfully and wilfully break and enter a certain burying-ground [or graveyard, or churchyard, or cemetery, or, &c. employing the term appropriate to the particular place],^ and did then and there unlawfully, wilfully, and indecently dig open the grave wherein the dead body of one X, deceased, had lately before been interred and then was, and said dead body, out of the grave aforesaid, unlawfully, wil- fully, and indecently did take and carry away ; against the peace, &c.^ § 958. On Statute. — On the words, substantially affirming the common law, — "shall dig up, remove, or disturb the remains of any dead person interred within this State," — there is an ap- proved form of the indictment essentially the same as that in the last section.^ Nor, on other statutes, are any changes re- quired which will not be obvious.'^ ' Needless. Ante, § 764, 781, 795, 798, burial-ground belonging to a meeting-house and notes to all. of a congregation of Protestants dissenting 2 Unnecessary. Ante, §48; Crim. Pro- from the Church of England ; " and, in an- ced. I. § 647. other, " a certain burial-ground in the par- ' Eex V. Cundick, D. & R,, N. P. 13. ish of N in the county of M." With the For other like forms, see 7 Cox C. C. App. last, the form in my text accords. 57 ; 4 Went. PI. 219. Burning. — For » Archb. Crim. PI. & Ev. 10th ed. 665, burning a dead body instead of burying 19th ed. 996; 2 Chit. Crim. Law, 35 ; Eeg. it, — held not to be indictable, if done in v. Sharpe, Dears. & B. 160, 7 Cox C. C. no indecent or offensive manner. Keg. v. 214 ; Eeg. v. Jacobson, 14 Cox C. C. Price, 15 Cox C. C. 389. 522. * Description of Place. — Within the ^ See, for the form, The State v. Little, principle appearing ante, § 183 and note, it 1 Vt. 331. is believed to be unnecessary to state the ' Precedents may be found in People v. ownership of the burial-place. In one of Graves, 5 Parker C. C. 134 ; Common- the English precedents before me the ex- wealth v. Slack, 19 Pick. 304 ; The State pression is " the churchyard of and belong- v. McClure, 4 Blackf. 328 ; People v. Bal- ing to the parish church of the said parish, ton, 58 Cal. 226. And see McNamee o. there situate;" in another, "a certain People, 31 Mich. 473. For SETTING FIRES, see Arson, &c. SHOP-BREAKING, see Bueglaet. SHOWS, see ante, § 628-631, 798-801. SLANDER, see Libel and Slandee. 525 § 961 SPECIFIC OFFENCES. [BOOK HI. CHAPTER LXXXII. SLAVE-TEADE.^ § 959. In General. — The abolition of slavery in this country does not abolish the offence of the slave-trade,^ but it somewhat diminishes the probability of its commission. Cases of it were never common in our courts, and thej'' are now not likely to occur otherwise than at wide intervals. Hence, — § 960. How in these Volumes. — In the other volumes of this series the cases are simply cited, so that the reader can find them should an emergency require, not discussed. Evidently nothing more, in a work so crowded with material, would have been judicious. And — § 961. Forms. — The reader will here be only referred, in a note, to places where some forms for the indictment may be found.^ 1 Crim. Law, I. § 564, note. States v. Kelly, 25 Law Reporter (Bost.), ^ R. S. of V. S. § 629, 1046, 5375-5382, 657. Bringing and importing slaves into 5551-5569. the State, Commonwealth v. Young, 7 B. ' Fitting out a vessel for the slave-trade, Monr. 1 ; The State v. Williams, 7 Rob. Rex V. Zulueta, 1 Car. & K. 215 (a partial La. 252, 255. form). Aiding in fitting out, &c. United For SLITTING THE NOSE, see ante, § 743. 526 CHAP. LXXXIII.] SODOMY. § 963 CHAPTER LXXXIII. SODOMY.l § 962. How the Indictment. — The indictment for this offence has come down to us from ancient times loaded with the common surplusage, yet otherwise in terms which, though in theory- capable of some improvement, are not practically objectionable. It is recommended, therefore, to follow the ancient forms, omit- ting what is beyond question needless. The varieties are three, — where the offence is between two men, where between a man and woman contrary to nature, and where between a man and beast. § 963. Forms. — To copy almost literally from Chitty, yet with some regard to forms in other books, the allegations are, — That A, &c. [ante, § 74-77], [not having the fear of God before his eyes, nor regarding the order of nature, but being moved and seduced by the instigation of the deviP], on, &c. [ante, § 80], [with force and arms '], at, &c. [ante, § 80], in and upon one X [a youth * about the age of seven- teen years then and there being '] feloniously ' did make an assault,' and then and there feloniously, wickedly, diabolically,^ and against the order of nature had a venereal affair ' with and carnally knew the said X [adding, if X was a woman, in the fundament of the said X], and then and there feloniously, wickedly, diabolically, and against the order of nature [adding, if X was a woman, in the fundament of the said X] with the said X did ^ For the direct expositions of this of- Car. & K. 869, 3 Cox C, C. 270 ; Lambert- fence, with the pleading, evidence, and son v. People, 5 Parker C. C. 200. practice, see Crim. Law, II. § 1191-1196 ; ^ It is better to omit " feloniously " if Crim. Proced. II. § 1013-1018 a. Inclden- the offence, which is commonly felony, is tal, Crim. Law, I. § .503, 767, 768 b, 768 d, found in the particular State to be misde- 867 ; II. § 708 ; Stat. Crimes, § 242, 660. meaner. 2 Needless. Ante, § 44, 45. ' I do not suppose this allegation of ' Unnecessary. Ante, § 43. assault to be necessary, while yet for prac- * Chitty states that the word here, in tical reasons I should retain it. Co. Ent. 351 6, is "male child." 8 Doubtless neither "wickedly" nor ' " Then and there being," not neces- " diabolically " is essential, sary within ante, § 582 and note. Nor, for *• While the carnal knowledge should be various reasons, is any of the matter in alleged, it is plainly a mere repetition to these brackets. It does not appear in the say also that the defendant had a venereal forms in Archb. Crim. PI. & Ev. 19th ed. affair. And it was adjudged to be needless 776 ; Keg. v. Allen, 1 Den. C. C. 364, 2 in Lambertson v. People, supra. 627 § 965 SPECIFIC OFFENCES. [BOOK HI. commit and perpetrate the detestable^ and abominable crime of buggery ^ [not to be named among Christians '^j, [or, with a certain cow feloniously, &c. as above, had a certain venereal and carnal intercourse, and there feloniously, wickedly, diabolically, and against the order of nature carnally knew the said cow, and then and there feloniously, &c. with the said cow did commit and perpetrate that detestable, &c. as above] ; [to the great displeasure of Almighty God, to the great scandal of all human kind '"], against the peace, &c. [ante, § 65-69].* § 964. Solicitation. — For the form of attempt known as solici- tation,^ the allegations, following in some degree the precedent in Chitty, may be, — That A, &c. on, &c. at, &c. [devising and intending as much as in him lay to vitiate and corrupt the morals of one X, and to stir up and excite in his mind filthy, lewd, and unchaste desires and inclinations °], did wick- edly and unlawfully solicit and incite the said X to permit and suffer him the said A then and there feloniously and contrary to the order of nature carnally to know the said X, and commit on his person the detestable and abominable crime of buggery ; against the peace, &c.' § 965. Assault with Intent. — The indictment may charge, — That A, &c. on, &c. at, &c. in and upon one X an assault did make [add- ing a battery if the pleader chooses, as generally he will], with the intent the said X then and there [in her fundament, if a woman] contrary to the order of nature carnally to know, and then and there feloniously to commit with the said X the detestable and abominable crime of buggery ; against the peace, &c.' 1 At first impression, this allegation Allen, supra ; Reg. v. Eansford, 13 Cox seems to be merely of law, therefore not C. C. 9. necessary. But for reasons stated in Crim. Maryland. — Davis v. The State, 3 Har. Proced. II. § 1016, the word "huggery" & J. 154. is indispensable, and there is no adequate New York. — Lambertson v. People, practical reason for departing, in the man- supra, ner of introducing it, from ancient usage. 6 Crim. Law, I. § 767, 768 6, 768 d, " In most of the precedents, even the 772 a. modern ones, but evidently not necessary. 6 I can discover no just ground for sup- It is not, for example, in Reg. v. Allen, su- posing that any of the matter in these pra, or Lambertson v. People, supra. brackets is essential, though I have no au- 8 The matter in these brackets is need- thorities on the point, less. It is within the principle of ante, 7 2 Chit. Crim. Law, 50. For a form § 44. 48- where the solicitation was by letter, see ■» For forms and precedents, see Crim. Reg. v. Ransford, 13 Cox C. C. 9. Proced. II. § 1013 ; Arohb. Crim. PI. & Ev. 8 por forms and precedents, see Archb. 19th ed. 776 ; 2 Chit. Crim. Law, 48-51 ; Crim. PI. & Ev. 19th ed. 778 ; 2 Chit. Crim. Rex V. Wiseman, Fort. 91 ; Rex v. And- Law, 50; Davis v. The State, 3 Har. & J ley, 3 Howell St. Tr. 401, 407; Reg. v. 154. For SOLICITATIONS, see ante, § 105-107. SPIRITUOUS LIQUORS, see Liquor Keeping and Selling. STOLEN GOODS, see Receiving Stolen Goods. STREETS, see Wat. 628 CHAP. LXXXtV.] SUBORNATION OP PERJURY. CHAPTER LXXXIV. SUBOKNATION OF PBEJURY.l § 966. Actual and Attempted. — Soliciting one to commit per- juiy, where he refuses or from any other reason it is not com- mitted, is an indictable attempt ; where he commits it, the offence is subornation of perjury.'-' Hence, — § 967. How the Indictment. — The indictment for such attempt is simply a part of that for subornation. The pleader sets out the solicitation, thereby charging an attempt ; then, if it was successful, he adds what elevates it to subornation. Thus, sub- stantially to copy a standard precedent, — § 968. Form for Indictment — (Both Solicitation and Suborna- tion). — The allegations may be, — That heretofore, at, &c. [giving the name of the court, and the prece- dent before the author adds the term], a certain issue was joined between one X and one Y, in a certain plea of trespass and assault, in which the said X was plaintiff and the said Y defendant. And [the jurors aforesaid upon their oath aforesaid do further present '] that afterward and before the trial of the said issue as hereinafter mentioned^ and whilst the same was depending, to wit, on, &c. at, &c. [ante, § 80], A, &c. [ante, § 74-77], [not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil ^], [and wickedly contriving and intending to pervert the due course of lasv and justice, and wickedly and maliciously contriving and intending unjustly to aggrieve the said X, the plaintiff in the said issue, and to deprive him of the benefit of his suit then in ques- tion, and to subject him to the payment of sundry heavy costs, charges, and expenses"], unlawfully, corruptly, wickedly, and maliciously' did solicit, 1 For the direct expositions of this of- tation this expression will require to be fence, witli the pleading, evidence, and modified. practice, see Crim. Law, II. § 1197-1199 ; * Unnecessaiy. Ante, § 44. Crim. Proced. II. § 1019-1023. Inciden- « Compare with ante, § ST.'i and note, tal Crim. Law, I. § 468, 974, 975 ; II. No such specific intent as is alleged in § 1055, 1056; Crim. Proced. II. § 75, 938, these brackets is necessary to constitute in 939 law the crime, hence its setting out is sim- 2 Crim. Law, II. § 1056,1197; Crim. ply superfluous. Proced. II. § 1019, 1021. ' Where the offence is felony, add here 3 Needless, as at ante, § 875. _ " feloniously." * On an indictment for the mere solici- 34 529 § 968 SPECIFIC OFFENCES. [BOOK III. suborn, instigate, and endeavor to persuade one Z [ante, § 79] to be and appear as a witness at the trial of the said issue, for and on behalf of the said Y the defendant in the said issue, and upon the said trial falsely to swear and give in evidence, to and before the jurors which should be sworn to try the issue aforesaid, certain matters material and relevant to tbe said issue, and to the matters therein and thereby put in issue, in substance and to the effect following, that is to say, that the said Y (meaning the defend- ant in the issue aforesaid) did, on a certain day then past, to wit, on the tenth day of April, in the year aforesaid, beat, wound, and bruise the said X (meaning the plaintiff in the issue aforesaid), and did knock him the said X down, and with a large stick did then and there beat, wound, and bruise, and greatly disfigure the said X whilst he was so down. [Thus far, we have a full setting out of the attempt by solicitation ; if the con- summated subornation of perjury is to be charged, the allegations pro- ceed :] And [the jurors first aforesaid upon their oath aforesaid do further present,^] that afterward, to wit, at the sittings at, &c. [say when and where], the Honorable 0, one of the justices of said court presiding, the issue aforesaid came on to be and was tried by a jury of the country in that behalf duly sworn and taken between the parties aforesaid ; upon which said trial there, on the day last aforesaid, the said Z, in consequence and by the means, encouragement, and effect of the said wicked and cor- rupt subornation and procurement of the said A, did appear as a witness for and on behalf of the said Y the defendant in the plea above mentioned, and was duly sworn, and took his [corporal ^] oath [upon the Holy Gospel of God '] before the said Honorable O, that the evidence which he the said Z should give to the court and jury there, touching the matter then in question between the said parties, should be the truth, the whole truth, and nothing but the truth, the said Honorable O, at the administering of said oath, having competent and sufficient authority therefor ; and that, upon the trial of said issue, on the said last-mentioned day, it there became and was a material question whether the said Y so as aforesaid assaulted and beat the said X ; whereupon the said Z did there during said trial, on said last-mentioned day, upon his oath aforesaid falsely, corruptly, and wil- fully, before the said judge and jury, depose and swear (amongst other things) in substance and to the effect following, that is to say ; that [here set out Z's evidence, in effect as above stated] ; whereas, in truth and in fact, the said X did not, &c. [negativing the truth as at ante, § 871, 873 and note] ; and whereas, in truth and in fact, the said A, at the time he so solicited, suborned, instigated, and endeavored to persuade the said Z falsely and corruptly to swear as aforesaid, well knew that, &c. [giving here also the proper denials]. [And so the jurors aforesaid upon their oath aforesaid do say, that the said A, on, &c. at, &c. aforesaid, did unlawfully, 1 Needless, as at ante, § 875. s Both unnecessary, and objectionable ^ This word is unnecessary, yet its in- as requiring proof of the form of the oath. sertion is not practically harmful. Crim. lb. ; ante, § 873, note. Proced. IL § 912, 913. 630 CHAP. LXXXIV.J SUBORNATION OP PERJURY. § 969 corruptly, wickedly, and maliciously suborn and procure the said Z to com- mit wilful and corrupt perjury in and by his oath aforesaid, before the said jurors so sworn and taken between the said parties as aforesaid, and before the said Honorable O, justice as aforesaid, the said Honorable O then and there having sufficient and competent power and authority to administer the said oath to the said Z ; to the great displeasure of Almighty God, to the evil and pernicious example of all others in the like case offending,' and] against the peace, &c. [ante, § 65-69].^ § 969. Aa to which. — The author, in transcribing this form, slightly abridged and likewise strengthened it. Still further con- densation is practicable, but the necessity therefor is not urgent enough to justify a prolongation of the chapter. 1 None of the matter in these brack- borough, Trem. P. C. 169 ; Rex v. Hick- ets is necessary, as see ante, § 873 and ley, Trem. P. C. 171 ; Kex v. Hilton, notes. Trem. P. C. 174 ; Rex u. Braddon, 9 2 Archb. Crim. PI. & Er. 10th ed. 575- Howell St. Tr. 1127. 577, 19th ed. 885. For other forms and Massachusetts. — Commonwealth v. precedents, both for the solicitation and for Smith, 11 Allen, 243. the accomplished offence, see 2 Chit. Crim. Texas. — Watson v. The State, 5 Texas Law, 475-484 ; 4 Went. PI. 234, 250 ; Rex Ap. 11, 21. V. Hawkins, Trem. P. C. 167; Rex v. United States. — United States . Stone, 6 Went. PI. 357, 368 ; Rex v. T. H. Trem. P. C. 1 ; Rex v. Ayliffe, Trem. P. C. 2 ; Rex v. Speke, Trem. P. C. 3 ; Rex V. Horsley, Trem. P. C. 4 ; Rex «. Gerrard, Trem. P. C. 278 ; Rex v. Hamb- den, Trem. P. C. 307, 308 ; Rex v. Lan- caster, 1 Howell St. Tr. 39 ; Reg. v. Nor- folk, 1 Howell St. Tr. 957, 959, 1035; Reg. ». Parry, 1 Howell St. Tr. 1095; Reg. V. Perrot, 1 Howell St. Tr. 1315 ; Reg. V. Lee, 1 Howell St. Tr. 1403 ; Reg. V. Blunt, 1 Howell St. Tr. 1409, 1416; Rex t. Raleigh, 2 Howell St. Tr. 1 ; Rex V. Conspirators, 2 Howell St. Tr. 159; Rex V. Ogilvie, 2 Howell St. Tr. 887 (Scotch) ; Rex v. Love, 5 Howell St. Tr. 43 ; Rex v. Sindercome, 5 Howell St. Tr. 841, 844 ; Rex v. Hewet, 5 Howell St. Tr. 883 ; Rex v. Cellier, 7 Howell St. Tr. 1043 ; Rex v. Fitzharris, 8 Howell St. Tr. 243, 336 ; Rex v. Plunket, 8 Howell St. Tr. 447, 451 ; Rex v. Stapleton, 8 Howell 540 St. Tr. 502 ; Rex v. Colledge, 8 Howell St. Tr. 550, 554, 567 ; Rex v. Shaftesbury, 8 Howell St. Tr. 759, 775 ; Rex v. Wal- cot, 9 Howell St. Tr. 519; Rex v. Hone, 9 Howell St. Tr. 571 ; Rex v. Russell, 9 Howell St Tr. 578 ; Rex ^. Rouse, 9 Howell St. Tr. 637 ; Rex v. Sidney, 9 Howell St. Tr. 818; Rex v. Rosewell, 10 Howell St. Tr. 147; Rex w. Fernley, 11 Howell St. Tr. 382 ; Rex v. Delamere, 11 Howell St. Tr. 509, 516; Rex v. Grahme, 12 Howell St. Tr. 646 ; Rex v. Freind, 13 Howell St. Tr. 1, 3 ; Rex v. Parkyns, 13 Howell St. Tr. 63, 66 ; Rex v. Rookwood, 13 Howell St. Tr. 139 ; Rex u. Lowick, 13 Howell St. Tr. 267, 275 ; Rex u. Cook, 13 Howell St. Tr. 311, 345 ; Rex v. Knights ley, 13 Howell St. Tr. 398 ; Rex v. Lind- say, 14 Howell St. Tr. 987 ; Reg. v. Dam- maree, 15 Howell St. Tr. 522; Reg. v. Purchase, 15 Howell St. Tr. 651, 694; Rex V. Francia, 15 Howell St. Tr. 897, 902; Rex v. Matthews, 15 Howell St. Tr. 1323; Rex u. Layer, 16 Howell St. Tr. 93; Rex v. Townlcy, 18 Howell St. Tr. 330, 333 ; Rex v. Kilmarnock, 18 Howell St. Tr. 441, 454, 45,^, 457 ; Rex v. Hensey, 19 Howell St. Tr. 1341, 1349 ; Rex v. Gor- don, 21 Howell St. Tr. 485, 494 ; Rex v. De la Motte, 21 Howell St. Tr. 687, 4 Went. PI. 1 ; Rex v. Tyrie, 21 Howell St. Tr. 815 ; Rex v. Hardy, 24 Howell St. Tr. 199, 223, 2 Chit. Crim. Law, 79, 4 Went. PI. 14 ; Rex I). Bird, 25 Howell St. Tr. 750 ; Rex v. Jackson, 25 Howell St. Tr. 783, 785 ; Rex ti. Stone, 25 Howell St. Tr. 1155 ; Rex v. Crossfield, 26 Howell St. Tr. 1 ; Rex V. Weldon, 26 Howell St. Tr. 226 ; Rex I). Leary, 26 Howell St. Tr. 295 ; Rex V. Kennedy, 26 Howell St. Tr. 354 ; Rex V. Maclane, 26 Howell St. Tr. 722, 733 ; CHAP. LXXXVIII.] TREASON. § 988 § 988. Levying "War against United States. — The statutory words are : " Every person owing allegiance to the United States who levies war against them, or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason." ^ And the Constitution adds, that " no per- son shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." ^ Hence, and for other reasons, the indictment must set out overt acts.^ It is believed that a method of allegation, simple, con- venient, and certainly adequate, such as the following, may be resorted to, better than a too servile following of the English precedents ; thus, — That A, &c. on, &c. at, &c. being a person owing allegiance to the United States of America, did then and there, in violation of his said duty of allegiance, maliciously and traitorously counsel and abet, and combine, confederate, and agree together with, B, C [and as many other known per- sons as the pleader finds it convenient to insert, or^ if he pleases, make all defendants together], and divers other persons to the number of one thou- sand and more whose names are to the jurors unknown, all of whom, both said known and said unknown persons, were then and there owing alle- giance to the said United States, maliciously, traitorously, and in violation of their said duty of allegiance, to levy war against the said United States, with the intent to subvert the power thereof. In pursuance of which said malicious and traitorous combination and confederation, the said A and the said other known and unknown persons did, in violation of the said duty of allegiance, then and there [here set out the overt acts of treason accord- Eex V. Finney, 26 Howell St. Tr. 1019 ; 28 Howell St. Tr. 1239; Eex v. Redmond, Eex V. O'Coigly, 26 Howell St. Tr. 1191, 28 Howell St. Tr. 1271 ; Rex v. Watson, 1202, 1204 ; Rex v. Sheares, 27 Howell St. 32 Howell St. Tr. 2, 10 ; Rex v. Brandreth, Tr. 2.55 ; Rex v. McCann, 27 Howell St. 32 Howell St. Tr. 755 ; Rex v. Thistle- Tr. 399 ; Rex v. Byrne, 27 Howell St. Tr. wood, 33 Howell St. Tr. 681, 696 ; Eex v. 455; Rex i.. Bond, 27 Howell St. Tr. 523, Hamilton, Fost. 1, 3; Rex c. Tierney, 527 ; Rex £/. Hadfield, 27 Howell St. Tr. Russ. & Ry. 74 ; Muleahy v. Reg. Law 1281, 1283; Eex v. Despard, 28 Howell Rep. 3 H. L. 306 ; Eeg. «. Oxford, 9 Car. St. Tr. 346, 359 ; Eex v. Kearney, 28 & P. 525 ; O'Brien v. Eeg. 3 Cox C. C. Howell St. Tr. 683, 692; Rex w. Eoche, 360; Eeg. y. Davitt, 11 Cox C. C. 676; 28 Howell St. Tr. 754 ; Bex a. Kirwan, 28 Eeg. v. Deasy, 15 Cox C. C. 334 ; Eeg. v. Howell St. Tr. 775 ; Eex w. Byrne, 28 McMahon, 26 U. C. Q. B. 195. Howell St. Tr. 806 ; Rex t. Begg, 28 Pennsylvania. — Eespublica v. Carlisle, Howell St. Tr. 849 ; Rex v. Clare, 28 1 Ball. 35. Howell St. Tr. 887 ; Eex v. Rourke, 28 United Slates. — United States v. Fries, Howell St. Tr. 926 ; Rex ;;. Doran, 28 Whart. St. Tr. 610 ; Davis's Case, Chase Howell St. Tr. 1041 ; Rex v. Donnelly, 28 Decis. 1, 18, 57. Howell St. Tr. 1070 ; Rex i/. Emmet, 28 ^ R. S. of U. S. § 5331. Howell St. Tr. 1098 ; Eex t. Howley, 28 ^ Crira. Law, IL § 1214. Howell St. Tr. 1103; Eex v. Mcintosh, s Crim. Proced. IL § 1032. 28 Howell St. Tr. 1215; Rex y. Keenan, 541 § 989 SPECIFIC OFFENCES. [BOOK III. ing to the facts, and charge them to have been done " traitorously ; " as] maliciously and traitorously collect large armies, constituting together five hundred thousand men and more, and immense navies and armed and equipped vessels of war, and munitions of war for the use of said armies and navies, and the said A did then and there maliciously, traitorously, and contrary to his said duty of allegiance command and cause, &c. [proceed- ing, according to the facts of the particular case, to set out as many overt acts as the pleader deems expedient] ; against the peace, &c.^ § 989. Adhering to Enemies of United States. — For this branch of treason, it will be sufficient here to adapt to our use an ap- proved English precedent ; thus, — That on, &c. and thence continually until the day of the finding of this indictment, an open and public war was and is prosecuted and carried on between the United States of America and the king [or republic] of X ; and that A, &c. a person owing allegiance to the said United States, at, &c. during all the time aforesaid, well knowing the premises, was, in vio- lation of his said duty of allegiance, and with the intent to aid and assist the said king, &c. in the said war, maliciously and traitorously adhering to the said king, &c. in the said war against the said United States, and giving to him and his counsellors, armies, and navies, enemies of the said United States as aforesaid, aid and comfort therein. In the prosecution, perform- ance, and execution of which treason and traitorous adhering aforesaid, he the said A, as such false traitor as aforesaid, during the said war, to wit, on, &c. at, &c. [setting out the overt acts,^ introducing each subsequent one thus : and in further prosecution, performance, and execution of his treason and traitorous adhering aforesaid, he the said A, as such false traitor as aforesaid, afterward, and during the said war, to wit, on, &c. at, &c.] ; con- trary to the duty of allegiance of him the said A, against the peace, &c.* 1 I have not added, in the conclusion, ^ Xt will be prudent, not saying whether "contrary to the duty of allegiance of him absolutely necessary or not, to allege each the said A," because this matter abun- to have been committed " traitorously," as dantly appears in the body of the indict- in the last form. ment. Still, some pleaders will choose to ^ Archb. Crim. PI. & Ev. 10th ed. 494, insert it here, when probably it may be 19th ed. 787. Compare with ante, § 987 omitted from the other places. Tiiere are, and notes. It will be seen that, in copying in this form, various words introduced and adapting this form, I have greatly re- by way of abundant caution, not deemed duced the surplusage, strictly necessary. 642 CHAP. LXXXIX.] TRESPASS TO LANDS. § 992 CHAPTER LXXXIX. TKESPASS TO LANDS. § 990. Elsewhere — Here — (What Indictable). — This is one of several titles which appear in the present volume, yet not in the other volumes of the series. A mere trespass upon lands, with no other element of wrong, is not indictable under the com- mon law ^ or probably under any statute.^ But when augmented by certain elements it is a common-law offence, and there are stat- utes makhig it punishable when combined with what would not suffice by the unwritten rules. Alike in the other volumes and in this, the various combinations wherein trespass to lands is one of the elements are pretty fully considered under such titles as " Animals," ^ " Arson and other Burnings," * " Burglary and other Breakings,"^ "Fish and Game,"" "Forcible Entry and De- tainer," ^ "Larceny,"^ "Malicious Mischief,"^ "Noxious and Adulterated Food," i° " Peace, Breaches of the," " " Sepulture," 12 and some others. The present chapter is introduced to direct attention to this general view of the subject, and add something as to the statutory trespass. § 991. How the Indictment. — The indictment should set out the trespass with the facts special to the individual instance, and add an allegation or allegations of whatever else the statute re- quires to be joined thereto to constitute the offence, all in words which will duly cover the statutory interpreted ^^ terms. Thus, — • § 992. Formula. — In outline, leaving the pleader to make the 1 Crim. Law, '" § 538 ; Temple v. The ^ Ante, § 441-448. And see " FoE- State, 7 Baxter, 109. cible Tkespass." 2 Arbuckle u. The State, 32 Ind. 34. 8 Ante, § 588, 596-600. » Ante, § 167, 169, 171-175. 9 Ante, § 722-730. * Ante, § 178-199. l» Ante, § 766. 6 Ante, § 251-261. " Ante, § 856, 857. « Ante, § 439. ^^ Ante, § 957. " Ante, § 32. 643 § 994 SPECIFIC OFFENCES. [BOOK III. modifications and fillings up which the particular case demands, the charge may be, — That A, &c. [ante, § 74-77], on, &c. at, &c. [ante, § 80], unlawfully and maliciously entered upon certain lands of one X, and thereon then and there did, &c. [say what, particularizing the act,'' and adhering to the stat- utory terms], having been first forbidden by the said X to do the same [or, &c. setting out in like manner whatever other fact or facts the statute has specified as completing the offence] ; against the peace, &c. [ante, § 65-69].^ § 993. School Lands. — Where a statute made it punishable to " commit waste, trespass, or other injury upon any school lands in the State, or upon any improvements thereon," an indictment was sustained in substance alleging, — That A, &c. on, &c. at, &c. did unlawfully commit waste, trespass, and other injury upon certain school lands ' [situate, &c. and known and de- scribed, &c.*], by then and there unlawfully cutting down and carrying away divers, to wit, fifty timber trees and fifty other trees thereon standing and growing ; against the peace, &c.^ § 994. Entering after Forbidden. — Where a statute makes pun- ishable one who, " after being forbidden to do so, shall enter on the premises of another without a license therefor," it seems 1 See post, § 994. nee, 14 Kan. IH ; The State v. Grewell^ 2 For precedents under differing stat>- 19 Kan. 189. utes, see — Missouri. — The State u. Myers, 20 Alabama. — MeGehee v. The State, 58 Misso. 409 ; The State v. Guernsey, 9 Ala. 360 ; Carroll v. The State, 58 Ala. Misso. Ap. 312. 396 ; Johnson v. The State, 61 Ala. 9 ; North Carolina. — The State v. White- Watson V. The State, 63 Ala. 19. As to hurst, 70 N. C. 85 ; The State v. Sherrill, the offence, see also Sandy v. The State, 60 SIN. C. 550 ; The State v. Laney, 87 N. C. Ala. 18 ; Daniels u. The 'State, 60 Ala. 535, 536 ; The State v. Walker, 87 N. C. 56. 541. And see further as to the law and Indiana. — Newland v. The State, 30 procedure for this offence. The State v. Ind. Ill ; Stribbling y. The State, 56 Ind. Williams, Busbee, 197; The State v. 79 ; Squires v. The State, 59 Ind. 261 ; Hanks, 66 N. C. 612 ; The State v. Prcsly, Derixson ;;. The State, 65 Ind. 385 ; John- 72 N. C. 204. son V. The State, 68 Ind. 43 ; The State v. Tennessee. — Walpole <,-. The State, 9 Enochs, 69 Ind. 314; Dorrell v. The State, Baxter, 370. 80 Ind. 566. And see further, as to the law Texas. — See Cleveland «. The State, 8 and the indictment, Dawson i;. The State, Texas Ap. 44. 52 Ind. 478 ; The State v. Sparks, 60 Ind. ^ Not necessary to allege the ownership. 298; The State v. Pitzer, 62 Ind. 362; Ante, § 183 and note. Lessen u. The State, 62 Ind. 437 ; The State * The analogies indicate that none of V. Scott, 68 Ind. 267 ; The State v. AUis- the matter in these brackets is necessary, bach, 69 Ind. 50. Ante, § 179 and note, 253 and note, 437- Kansas. — The State t;. Jennerson, 14 439, 442 and note, 445, 596-599, 723- Kan. 133. And see further as to the of- 729. fence and the procedure. The State v. Gur- ^ The State v. Myers, 20 Misso. 409. 544 CHAP. LXXXIX.] TRESPASS TO LANDS. § 995 to be accepted as adequate, while yet it does not quite satisfy the stricter rules, to aver, — That A, &c. on, &c. at, &c. unlawfully did enter upon [and pass through and over a certain enclosed field ' of] the premises of one X, without any license therefor, after having been by the said X forbidden so to do ; against the peace, (fec.'^ § 995. Removing Fence. — Under the words " without license from competent authority, shall cut down or remove from the lands of another any tree, stone, timber, or other valuable article," it is good to allege, — That A, &c. on, &c. at, &c. did unlawfully remove from the lands of X, without license from said X or any other competent authority, certain rails and stakes of the said X of the value of five dollars, constituting a fence thereon ; against the peace, &c.' 1 This matter in brackets is not in the ^ The State v. Whitehurst, 70 N. C. 85, form before me, which was adjudged good, omitting some obvious surplusage. I should deem the indictment better with it. ^ Dorrell v. The State, 80 Ind. 566. For TURNPIKE, see Tolls — Wat. UNLAWFUL ASSEMBLY, see Kiot, &c 35 645 § 997 SPECIFIC OFFENCES. [BOOK III. CHAPTER XC. UNLICENSED BUSINESS.^ § 996. Elsewhere. — The note to this title explains that the greater part of what is comprehended within it is, in this series of Tolnmes, treated of under other titles severally of narrower meaning. In the present volume, the corresponding other titles are " Hawkers and Peddlers," ^ " Liquor Keeping and Sell- ing," ^ "Lotteries,"* and the sub-title "Liquor and Tippling Shops." 5 § 997. Formula for Indictment. — The statutes and their sub- jects being various, there can be no complete formula for the indictment. As an outline, that given under the title " Liquor Keeping and Selling " ^ may be consulted. Or, if the pleader chooses, he may aver, — That A, &c. [adding time, place, &c. as at ante, § 642], unlawfully did carry on the business of, &c. [say what ; or, unlawfully did exhibit, &c. ; or, &c. covering otherwise the statute according to the special fact], with- out having first obtained any license or authority therefor ; against the peace, &c. [ante, § 65-69] .' 1 For direct expositions of various sorts ' Ante, § 642. And see § 65.5, 656. of unlicensed business, with the pleading, ' For precedents, see, besides the places evidence, and practice, see Stat. Crimes, referred to under the several minor titles, LoTTEBiES, § 950-966 ; Liquor Selling, 3 Chit. Crira. Law, 672 ; 4 Went. P). 430, § 983-1053; Keeping, &c. eor Unlaw- 431 ; 4 Cox C. C. App. 1 ; Rex v. Har- FUL Sale, § 1054-1058 ; Liquor Nui- sant, Trem. P. C. 242 ; Rex v. Plym, sances, § 1059-1070 6 ; Hawkers and Trem. P. C. 264 ; Reg. v. Buchanan, 8 Peddlers, § 1071-1088 ;. Further of Q. B. 883 ; Reg. v. Tucker, 2 Q. B. D. 417, Unlicensed Business, § 1089-1098. In- 13 Cox C. C. 600 ; Reg. c. Otway, 4 Cox cidcntal, see various places in those titles C. C. 59 ; Reg. v. Buchanan, 2 Cox C. C. referred to, and Crim. Proced. I. § 469 ; IL 36 ; Reg. v. Lennox, 26 U. C. Q. B. 141. §282; Stat. Crimes, § 20, 22, 151, 156, 4/a6ama. — Cousins v. The State, 50 854 a. And see places referred to in the Ala. 113; Perkins y. The State, 50 Ala. next four notes. 154; Henback v. The State, 53 Ala. 523; 2 Ante, § 508-510. Barnett v. The State, 54 Ala. 579 ; Gill- 8 Ante, § 640-660. man v. The State, 55 Ala. 248 ; Merritt v. * Ante, § 672-679. The State, 59 Ala. 46. 6 Ante, § 818, 820. ^rfcansas. — The State v. Adams, 16 646 CHAP, XC] UNLICENSED BUSINESS. §999 i. Unlicensed dealing as Merchant.^ — Subject to be varied with tlie terms of the interpreted ^ statute, the allegations may be, — That A, &c. on, &c. [adding the continuando as at ante, § 81-84, or not, as the pleader chooses], at, &c. at a certain store and place there,* did un- lawfully carry on the business of merchandising and dealing * as a mer- chant \_or, &c. adhering to the statutory terms], and did then and there and therein sell as a merchant dry goods and groceries [or, &c. according to the fact] to all persons desiring to pui-chase the same [or, certain articles, enumerating them, to one X, and certain enumerated articles to one Y, &c/], not having any license or authority therefor; against the peace, &c.' § 999. XInlicensed Physician and Surgeon.^ — An old English precedent, suggestive to the pleader, while yet he will discard its surplusage, and cover the statute of his own State, is, — That A, &c. [being an illiterate man and unskilled in the art or faculty of medicine and surgery,' and devising and intending by divers unlawful Ark. 497 ; The State v. Clayton, 32 Ark. 185. Connecticut. — The State v. Kilbourn, 9 Conn. 560. Georgia. — Stringfield v. The State, 25 Ga. 474. Illinois. — Mnrm v. People, 69 III. 80. Indiana. — Alcott v. The State, 8 Blackf. 6 ; Hendeison v. The State, 50 Ind. 234. Kansas. — Territory u. Keyburn, Mc- Cahon, 134. Massachusetts. — Commonwealth v. Rice, 9 Met. 253 ; Commonwealth v. Stod- der, 2 Cush. 562, 565 ; Commonwealth v. Twitehell, 4 Cush. 74 ; Commonwealth v. Gee, 6 Cush. 174. Missouri, — The State v. Hard wick, 2 Misso. 226; Wheat v. The State, 6 Misso. 455 ; Simmons v. The State, 12 Misso. 268 ; The State v. Goodo, 24 Misso. 361 ; The State v. Miller, 24 Misso. 532 ; The State V. North, 27 Misso. 464 ; The State V. Cox, 32 Misso. 566. Nevada. — The State v. Ah Chew, 16 Nev. 50, 53. New Hampshire. — The State v. Fletch- er, 5 N. H. 257. New York. — People v. Koll, 3 Keyes, 236. North Carolina. — The State v. Chad- bourn, 80 N. C. 479. Pennsijlvunia. — Commonwealth v. Fiegle, 2 Philad. 215; Commonwealth v. Fox, 10 Philad. 204. South Carolina. — The State t. Hayne, 4 S. C. 403. Texas. — The State v. Goldman, 44 Texas, 104 ; Logan v. The State, 5 Texas Ap. 306, 308 ; Smith v. The State, 5 Texas Ap. 318 ; Antle v. The State, 6 Texas Ap. 202 ; Ellison v. The State, 6 Texas Ap. 248. Virginia. — Burner v. Commonwealth, 13 Grat. 778. West Virginia. — The State v. Whitter, 18 W. Va. 306, 307. United States. — United States v. Wil- liams, 5 Cranch C. C. 62, 66. 1 Stat. Crimes, § 1011, 1090-1092. Compare with ante, § 508-510. 2 Ante, § 32. 2 Compare with ante, § 647, 656. * Compare with ante, § 655. 5 Stat. Crimes, § 1091. 8 I have not servilely copied any of the precedents. See, for precedents, The State V. Cox, 32 Misso. 566 ; The State v. Wil- lis, 37 Misso. 192 ; The State v. Jacobs, 38 Misso. 379 ; The State v. Hardwick, 2 Misso. 226 ; The State v. North, 27 Misso. 464 ; The State v. Miller, 24 Misso. 532 ; Perkins v. The State, 50 Ala. 154 ; Merritt V. The State, 59 Ala. 46 ; Alcott v. The State, 8 Blackf. 6 ; The State v. Whitter, 18 W. Va. 306, 307; The State u. Chad- bourn, 80 N. C. 479. ' Stat. Crimes, § 1095. 8 Evidently not necessary ; for the de- 647 § 1000 SPECIFIC OFFENCES. [BOOK III. means falsely, unlawfully, craftily, and wickedly to deceive and defraud the liege and faithful subjects of the Lord the King of their goods, chattels, and moneys, to maintain his dishonest course of living ^], on, &c. and thence continually until the day of the finding of this indictment [ante, § 81-84], [to wit, for the space of ten whole months and more ''J ; [with force and arms"], at, &c. [and in divers other places in said county*], falsely, unlaw- fully, [impudently,* and for the sake of wicked gain °] did assume upon him- self to execute, exercise, and occupy the art, faculty, and science of a physician and surgeon, and then and there falsely and impudently did pub- lish that he was a physician and surgeon, and as a physician and surgeon did give, administer, and apply [improper, noxious, insalubrious, and most dangerous medicines as good and salubrious '] medicines to divers subjects of the said Lord the King, afflicted with various infirmities, diseases, and wounds [in the county, &c. to wit, in the parish, &c. in the county, &c. and in divers other places in said county '] , he the said A never being ad- mitted, approved, or allowed by the Bishop of Norwich, in whose diocese the said A for the whole time aforesaid did dwell, and for the same time did act and practise as a physician and surgeon, or, in the absence of the said bishop from his diocese, by the vicar-general of the said bishop, to exercise the said faculty ; " [to the great damage, injury, and manifest deceit of very many liege subjects of the said Lord the King, to the evil and pernicious example, (fee.'" and] against the peace, &c.'^ § 1000. Public Show — (Theatricals, &c.). — Where a statute authorizes the selectmen of the several towns to " license all theatrical exhibitions, public shows, and exhibitions of any de- scription, to which admission is obtained on payment of money, fendant's offence is not that he is illiterate, tnre of a mere malediction that it can be but that he has disobeyed a statute by eon- neither necessary nor desirable. ducting a, medical and surgical practice ^ Needless. Ante, § 795, note, and without the required license. And see places referred to. ante, § 848 and note. ' As the offence in no wise depends on 1 This sort of malediction is evidently the quality of the medicines prescribed, it of no practical use, and it better be omitted, is better to omit this sort of allegation. If the statute makes a particular evil intent 8 Xhere is evidently nothing to be gained an eletnent in the offence, it must be al- by this sort of repetition, leged and proved; but to charge what is 9 This negation of the license is in many not essential to its constitution can only more words than are either necessary or perplex the jury and obstruct justice. judicious. Ante, § 642, note. 2 If the statute makes the practice dur- ■") Needless. Ante, § 48. ing a given length of time essential to the ^i Eex v. Harsant, Trem. P. C. 242. offence, matter like this in these brackets, For other precedents, see United States v. covering the statutory terms, should be Williams, 5 Cranch C. C. 62, 66 ; The inserted. Otherwise nothing of this is re- State v. Goldman, 44 Texas, 104; Logan qniied. v. The State, 5 Texas Ap. 306, 308 ; 8 Unnecessary. Ante, § 43. Smith v. The State, 5 Texas Ap. 318; • No reason is discoverable rendering Antle v. The State, 6 Texas Ap. 202 ; the matter in these brackets important. Ellison v. The State, 6 Texas Ap. 248. * " Impudently " is so much in the na- 548 CHAP. XC] UNLICENSED BUSINESS. § 1001 upon such terms and conditions as they shall think reasonable," &c. then declares punishable one " who shall set up or promote any such exhibition or show, or shall publish or advertise the same, or otherwise aid or assist therein, without a license first obtained," ^ the indictment may charge, — That A, &c. on, &c. at, &c. did unlawfully '^ set up and promote a cer^ tain exhibition and public show, to which admission was obtained by the payment of twelve and a half cents in money by each person admitted thereto, the same purporting to be, &c. [saying what], without having first obtained any license therefor. [And the said A did then and there admit divers persons thereto, for a certain sum of money, to wit, twelve and a half cents, by each paid to the said A, to witness the same '] ; against the peace, &c.^ § 1001. Other Forms — may be constructed on the model of these and those in the other chapters already referred to.^ The statutes are so varying in terms that to cover all would require a good deal of space with small return of profit to the reader. 1 Mass. R. S. c. 58, § 1, 2. without license, Wheat u. The State, 6 ' " Unlawfully " is not in the form be- Misso. 455; Territory u. Reyburn, Mc- fore me, and it was well adjudged not to be Gabon, 134. Attomey-at-Law, — unli- necessary. Still, in this and ya'rious other censed practising as, Reg. v. Buchanan, 8 instances, I have deemed its insertion in Q. B. 883 ; Reg. v. Buchanan, 2 Cox C. C. the forms to be .judicious. 36; Cousins v. The State, 50 Ala. 113; ' In substance in the form before me, yet Simmons v. The State, 12 Misso. 268; the offence seems to bo fully charged with- The State v. Hayne, 4 S. C. 403. Broker, out this matter. — unlicensed, Henderson v. Th^ State, 50 * Commonwealth v. Twitchell, 4 Cush. Ind. 234. Inns and Victualling Houses, 74. For keeping a dancing-house unli- — keeping unlicensed. The State u. Fletch- censed, 3 Chit. Crim. Law, 672. Unli- er, 5 N. H. 257 ; The State t>. Adams, 16 censed theatricals and other amusements. Ark. 497 ; Burner v. Coram'onwealth, 13 People V. KoU, 3 Keyes, 236; Common- Grat. 778; The State u. Kilbourn, 9 Conn, wealth y. Fox, 10 Philad. 204 ; Gillman,!!. 560. Warehouse and Elevator, — keep- The State, 55 Ala. 248 ; Commonwealth v. Ing unlicensed, Munn v. People, 69 111. 80. Gee, 6 Cush. 174. Dancing and Music, Fire-arms and Ammunition, — having, — place for, Reg. v. Tucker, 2 Q. B. D. without license, Reg. v. Otway, 4 Cox 417, 13 Cox C. C. 600. C. C. 59. * See precedents for Keeping Ferry — For UNNATURAL CRIME, see Sodomy. UNWHOLESOME FOOD, see Noxious and Adultee'ated Food. USURPING OFFICE, see ante, § 848, 849. 549 § 1003 SPECIFIC OFFENCES. [BOOK III. CHAPTER XCI. rrsuBY.' § 1002. Indictment Statutory. — Whatever we may deem the unwritten law of our States on this subject to be, practically no prosecuting officer will be likely to attempt an indictment upon it, nor in all the States are there statutes available for the purpose. § 1003. Statute and Form. — On the statutory words, " In any case where more than legal interest shall be taken, the person taking the same shall be liable to indictment or presentment, and, on conviction, shall be fined a sum not less than the whole usuri- ous interest so taken and received, which amount shall be ascer- tained by the jury trying the case : provided, that no fine shall be less than ten dollars," the allegations may be, — That A, &c. on, &c. at, &c. unlawfully and usuriously did take and receive of and from one X, for the interest, use, and forbearance of certain good and valid bank-notes treated between the said A and the said X and commonly circulating as money, of the amount and value of two hundred and thirty-two dollars, for the space of four months preceding said day, the sum of thirty-five dollars in other such bank-notes so treated and circu- lating [the said smaller sum being more than the legal interest of six per centum per annum, or at that rate for a longer or shorter period ; to wit, the true and lawful interest being four dollars and sixty-four cents, and no more ^] ; against the peace, &c.' ' For the direct expositions, see Crim. " In substance as in Gillespie v. The Law, il. § 1260-1263. Incidental, Crim. State, 6 Humph. 164. For other prece- Proced. I. § 580. dents, see 2 Chit. Crim. Law, 548 ; Rex v. 2 In substance in the form before me ; Farmer, Trem. P. C. 269 ; The State v. but, being a mere allegation of law, it can- Tappan, 15 N. H. 91 ; Wilkerson v. The not be necessary. Ante, § 734 and note State, 2 Ind. 546 ; The State b. Williams, 4 and places there referred to, 820 and note. Ind. 234 ; Malone v. The State, 14 Ind. 219. For UTTERING COUNTERFEITS, see ante, § 337-341,460,462,466-472,476 479 550 CHAP, XCn.] TAGKANCT AND THE LIKE. § 1007 CHAPTER XCII. VAGRANCY AND OTHER LIKE OFFENCES.^ § 1004. Begging. — Under a statute to punish " every person wandering abroad or placing himself or herself in any public place, street, highway, court, or passage to beg or gather alms," ^ the allegations may be, — That A, &c. on, &c. at, &c. unlawfully did wander abroad in a certain pub- lic thoroughfare there, begging and gathering alms; against the peace, &c.' § 1005. Disorderly and Idle Persona. — Where " idle and disor- derly persons, including therein those persons who neglect all lawful business and habitually misspend their time by frequent- ing houses of ill-fame, gaming-houses, or tippling-shops," are made the subjects of punishment, it may be averred, — That A, &c. [ante, § 74^77], on, &c. and thence continually until, &c. [ante, § 81-84], at, &c. [ante, § 80], was and is an idle and disorderly per- son, and there during all said time has neglected all lawful business, and habituallj' misspent his time by frequenting houses of ill-fame, gaming- houses, and tippling-shops ; against the peace, &c. [ante, § 65-69].^ § 1006. Incorrigible Rogue — is the expression in some English statutes ; and, it is believed, in American ones. But the mean- ing of the words will be influenced by their connection ; and, in the absence of adjudications, it will suffice simply to refer to an English precedent.* § 1007. Night-walker. — To constitute one a night-walker at the common law, he must do something beyond a mere walking 1 As to Idleness, — see Crim. Law, I. also, as to begging, In re Haller, 3 Abb. § 453-455, 515, 516. Wight-walking,— N. Cas. 65. Crlm. Law, I. § 501 and note ; Crim. Pro- * Commonwealth v. Sullivan, 5 Allen, ced. I. § 169, 182 ; II. § 874 a. Vagran- 511. For other precedents, see Common- cy, — Crim. Law, I. § 515, 516, 706. And wealth i'. Hawks, 13 Allen, 550 ; Common- see ante, § 823-826. wealth v. Norton, 13 Allen, 550; Palmer 2 5 Geo. 4, c. 83, § 3. u. People, 43 Mich. 414, 415. » Pointon v. Hill, 12 Q. B. D. 306. See ' g Chit. crim. Law, 681. 551 § 1010 SPECIFIC OFFENCES. [BOOK IH. of the streets at night. There must be added the commission of petty offences ; or, at least, conduct to make him a common nuisance.-* Still it is believed that, by the better opinion, this added matter, which from its nature may be general, need not be alleged in minute terms,^ and that the following form, without the words here given in brackets, will suffice, while by all opinions it will be adequate with them : — That A, &c. on, &c. [adding, and thence continually until, &c. as at ante, § 81-84, or not, as the pleader chooses], at, &c. was a common night- walker, walking and perambulating in and through the streets at unsea- sonable hours of the night without lawful business, for unlawful and evil purposes, and to the disturbance of all good and well-disposed people [to^it, say what ; ^ as, for example, for the purpose of prostitution] ; against the peace, &c. [perhaps adding,'^ to the common nuisance of all the people].^ § 1008. Truancy, — as to, see the note.® § 1009. Vagabond and Kogue, — as to, see the note.'' §1010. Vagrancy. — The statutes creating this offence differ in their terms ; and the indictment is required simply to cover, in due form, the interpreted ^ words on which it is drawn.^ If, for example, it is made a misdemeanor for one having no appar- ent means of subsistence to neglect to apply himself to some honest calling, the averments may be, — That A, &c. on, &c. at, &c. and thence continually until, &c. did, having no apparent means of subsistence, unlawfully neglect, fail, and refuse to ap- ply himself to any honest calling, but did there during all said time habitually loiter around drinking-saloons and gambling-houses ; against the peace, &c."' 1 Ciim. Law, I. § 501 ; Thomas v. The sex Justices, 2 Q. B. D. 516 ; Monck v. State, 55 Ala. 260 ; ante, § 823-826. Hilton, 2 Ex. D. 268. 2 Crim. Proced. II. § 874 a. B Ante, § 32. » Thomas v. The State, supra. 9 -poT this and various expositions of * Ante, § 775. the statutes, consult Taylor v. The State, ^ For forms and precedents, see Crim. 59 Ala. 19 ; In re Conroy, 54 How. Pr. Proced. II. § 874 a ; Thomas v. The State, 432 ; People v. Catholic Protectory, 61 supra; Commonwealth!;. Norton, 13 Allen, How. Pr. 445; Toney v. The State, 60 550 ; The State v. Dowers, 45 N. H. 543. Ala. 97 ; Ex parte Birchfield, 52 Ala. 377 ; Feeding Armed Prowlers, — see Vaughn In re Way, 41 Mich. 299; and the subse- V. The State, 3 Coldw. 102. quent cases cited to this section. ' O'Malia v. Wentworth, 65 Maine, i" Brown v. The State, 2 Lea, 158. For 129. other forms, see The State v. Custer, 65 1 Crim. Law, L § 515 ; Reg. v. Middle- N. C. 339 ; Walton v. The State, 12 Texas Ap. 117 ; Boulo ». The State, 49 Ala. 22. For VOTING, see Election Offences. WAGES, see Conspiracy — Labok Offences. 662 CHAP. XCni.] WAT. § 1012 CHAPTER XCIII. § 1011-1013. Introduction and General Formula. 1014-1020. Ordinary and Turnpike Streets and Boads. 1021, 1022. Railways. 1023. Public Bridges. 1024, 1025. Public Squares and Pleasure-Grounds. 1026-1028. Rivers and other Ways by Water. 1029. Harbors and Public Ponds. § 1011. Scope and Order of Chapter. — It is within the SCOpe of this chapter to consider so much as belongs to this Yolume of the offences against, I. The Ordinary and Turnpike Streets and Roads ; II. The Railways ; III. The Public Bridges ; IV. The Public Squares and Pleasure-Grounds ; V. The Rivers and other Ways by Water ; VI. The Harbors and Public Ponds. But, before proceeding with this, let us, according to the common course of this volume, bring under contemplation a — § 1012. General Formula for the Indictment. — Such formula can be accurate only in outline, to be varied with the differing statutes and special facts ; as, — That A, &c. [ante, § 74-77], on, &c. [ante, § 80, and in many circum- stances adding the continuando as at ante, § 81-84], at, &c. [ante, § 80], did unlawfully obstruct, &c. [setting out the obstruction ; ^ or, neglect to keep in repair, &c. particularizing the condition of the way and its needs °] a certain public highway there duly established * \or, navigable river and public water-way for vessels (the pleader will ordinarily add its name) ; or, public common and pleasure-ground duly established ; or, &c. according to 1 For the direct expositions of the law Crim. Proced. I. § 53, 63, 441, 469, 470, of this subject, with the pleadinp:, evidence, 486, 488 e ; 11. § 827 ; Stat. Crimes, § 20, and practice, see Crim. Law, 11. § 1264- 156, 164, note, 206, 284, 298,301-303,878, 1287 ; Crim. Proeed. II. § 1042-1057. In- 90C, 927, 928, 973. cidental, dim. Law, L § 108, 173-175, 227, 2 Crim. Proced. IL § 1052. 236, 241, 244, 245, 265, 341, 419-421, 531, ' lb. § 1047. 792, 829, 1061, 1081 ; IL § 667, 669, 690 ; * lb. § 1045, 1051. 553 §1012 SPECIFIC OFFENCES. [book III. the fact], whereon the people were at all times entitled to be, travel, and pa?s, so that, &c. [according to the special fact] ; to the common nuisance of all the people,^ against the peace, &c. [ante, § 65-69].^ 1 Ante, § 775. 2 For forms and precedents, see Archb. Crim. PI. & Ev. 19th ed. 966, 968, 970, 980, 982, 984 ; 3 Chit. Crim. Law, 577-589, 594-641 ; 4 Went. Pi. 157-199, 222-224, 345 ; 6 lb. 401, 405-418, 427 ; 2 Cox C. C. App.3; 6 lb. App. 23, 74, 75, 115; Rex V. H. P., Trem. P. C. 196; Eex v. Baxter, Trem. P. C. 196 ; Rex v. Fanshaw, Trem. P. C. 199 ; Rex v. Harvey, Trem. P. C. 197 ; Rex v. Essex, Trem. P. C. 205 ; Rex V. Stains, Trem. P. C. 207 ; Rex v. Nor- wich, Trem. P. C. 208 ; Reg. v. Sainthill, 2 Ld. Raym. 1174; Cumberland v. Eex, 3 B. & P. 354 ; Rex v. Stoughton, 2 Saund. 157 ; Rex v. Harrow, 4 Bur. 2090 ; Rex v. Stead, 8 T. R. 142; Rex v. West Riding of Yorkshire, 2 East, 342 ; Rex v. Liver- pool, 3 East, 86 ; Rex v. Russell, 6 East, 427 ; Rex v. Salop, 13 East, 95 ; Rex v. Kent, 13 East, 220 ; Rex v. Winter, 13 East, 258 ; Rex v. Kent, 2 M. & S. 513 ; Rex V. Kerrison, 3 M. & S. 526 ; Rex v. St. Giles, 5 M. & S. 260 ; Rex v. Devon, 4 B. & C. 670 ; Rex o. Russell, 6 B. & C. 566 ; Eex v. Wright, 1 A. & E. 434 ; Rex V. Ward, 4 A. & E. 384, 408, note; Rex v. Tindall, 6 A. & E. 143 ; Eeg. v. Barton, 11 A. & E. 343; Eeg. v. Derbyshire, 2 Q. B. 745 ; Eeg. o. Midville, 4 Q. B. 240; Eeg. V. New Sarum, 7 Q. B. 941 ; Reg. v. Great North of England Eailway, 9 Q. B. 315, 2 Cox C. C. 70 ; Eeg. u. Ely, 15 Q. B. 827, 4 Cox C. C. 281 ; Reg. v. Turweston, 16 Q. B. 109, 4 Cox C. C. 349 ; Eeg. i;. Denton, 18 Q. B. 761, Dears. 3 ; Eeg. v. Betts, 16 Q. B. 1022 ; Eeg. v. Waverton, 17 Q. B. 562, 2 Den. C. C. 340, 5 Cox C. C. 400 ; Reg. v. Sturge, 3 Ellis & B. 734 ; Reg. V. Russell, 3 Ellis & B. 942 ; Reg. v. Ramsden, Ellis, B. & E. 949; Eeg. o. Longton Gas Co. 2 Ellis & E. 651 ; Eeg. V. Train, 2 B. & S. 640; Reg. v. Stephens, 7 B. & S. 710; Reg. v. Clark, Law Rep. 1 C. C. 54, 10 Cox C. C. 338 ; Reg. v. Hadfield, Law Rep. 1 C. C. 253, 11 Cox C. C. 574 ; Reg. v. Hardy, Law Eep. 1 C. C. 278, 11 Cox C. 0. 656; Eeg. i>. Gate Fulford, Dears. & B. 74, 7 Cox C. C. 230 ; Reg. v. Bradford, Bell, 268, 8 Cox C. C. 309 ; Reg. i>. FuUford, Leigh & C. 403, 9 Cox C. C. 453 ; Reg. v. Holroyd, 2 554 Moody & E. 339 ; Eex v. Upton-on-Sevem, 6 Car. & P. 133; Reg. y. Botfield, Car. & M. 151 ; Eeg. v. Maybury, 4 Fost. & F. 90 ; Reg. V. Dobson, 1 Cox C. C. 251 ; Reg. v. United Kingdom Elec. Tel. 9 Cox C. C. 137 ; Reg. v. Burrell, 10 Cox C. C. 462 ; Eeg. V. Monaghan, 11 Cox C. C. COS; Eeg. u. Spence, 11 U. C. Q. B. 31 ; Eeg. V. Great Western Railway, 21 U. C. Q. B. 555 ; Reg. u. Ottawa, &c. Road, 42 TJ. C. Q. B. 478. Alabama. — The State v. Bell, 5 Port. 365 ; Freeman v. The State, 6 Port. 372 ; Prim V. The State, 36 Ala. 244 ; Blann v. The State, 39 Ala. 353; Nowlin v. The State, 49 Ala. 41 ; Malone 0 ; 3 Chit. Crim. Liiw, 611. * Rex 0. Russell, 6 East, 427 ; 3 Chit. Crim. Law, 625, 626. 6 Reg. V. Train, 2 B. & S. 640. 8 For forms and precedents, see a l.irge part of the places referred to ante, § 1012. For some particular obstructions, see, in addition to the places already cited to this section, — Digging, Removing Dirt, &o. — in and from street. 3 Chit. Crim. Law, 615, 620 ; Rex !'. Winter, 13 East, 258. Building, — permanent or temporary, obstruction partial or full. 3 Chit. Crim. Law, 612, 615, 617; 4 Went. PI. 191; Reg. V. FuUford, Leigh & C. 403, 9 Cox C. C. 453 ; Commonwealth v. Goodnow, 117 Mass. 1 14 ; The State v. Vermont Cen- tral Railroad, 27 Vt. 103 ; Rex v. Wright, 1 A. & E. 434. Gate, — obstructing travel by erecting a. 3 Chit. Crim. Law, 618 ; 4 Went. PI. 197, 198; 6 lb. 401, 402,405. Timber, Dirt, &e. — Putting, in street. 3 Chit. Crim. Law, 622, 625 ; Rex v. Har- vey, Trem. P. C. 197; Commonwealth v. King, 13 Met. 115. Flooding, — by damming streams, and other like means. Respublica v. Arnold, 3 Yeates, 417 ; The State v. Lord, 16 N. H. 357 ; Prim v. The State, 36 Ala. 244 ; Reg. V. Maybury, 4 Fost. & F. 90. Running Horse, — so as to interrupt travel. The State v. Fleetwood, 16 Misso. 448. Altering Course. — Freeman o. The State, e Port. 372. Over Railroad, — carrying street, by bridge, improperly. People v. New York Central, &e. Railroad, 74 N. Y. 302. Engines and Cars, — Railroad ob- structing highway by. The State v. Grand Trunk Railway, 59 Maine, 189. Contrary to Charter, — acts of rail- way company, obstructing common road by. Reg. v. Great North of England Rail- way, 9 Q. B. 315, 2 Cox C. C. 70. Footway, — obstructing. Reg. v. Longton Gas Co. 2 Ellis & E. 651 ; Reg. V. Betts, 16 Q. B. 1022. 557 §1017 SPECIFIC OFFENCES. [book III. charters otherwise provide ; ^ so that no separate forms of the indictment for obstructing them are here required.^ § 1017. Non-repair. — The allegations for non-repair are com- monl}^ in the precedents more expanded than is strictly necessary, nor are the authorities entirely distinct as to what they must con- tain. In " Criminal Procedure " ^ this is duly explained ; and it will suiEce for this place to set down what is believed to satisfy all opinions, mainly following a much-employed English prece- dent ; thus, — That A, &c. [in most cases a municipal corporation, ante, § 76, 79] on, &c. and thence continually until the day of the finding of this indictment, at, &c. was and still is under the legal duty to keep in due and proper repair ' a certain common highway called M Street [or, &c. as at ante, § 1015], there during all said time duly established and being [for, and used by, all the people, with their horses, coaches, carts, and other carriages to go, return, pass, repass, ride, and labor at their free will and pleasure ^J ; and that a certain part of the said common highway [called N Lane, situate, lying, and being in the town of O in said county, extending from a certain field there, called , unto a certain bridge called bridge, contain- ing in length forty yards, and in breadth eight yards °], was, during all said 1 Crim. Law, II. § 1270. 2 Gate. — For unlawfully shutting a gate, The State v. Day, 3 Vt. 138 ; The State V. Bosworth, 13 Vt. 402. 8 Crim. Proced. II. § 1043-1048. * There may be circumstances in which the averment of this duty is required, but it is not commonly. Crim. Proced. II. § 1044. Perhaps, where it is essential, some will choose to say also how the duty arose. Rex v. Stoughton, 2 Saund. Wras. ed. 157 and notes ; 3 Chit. Crim. Law, 587. ' The matter in these brackets is com- mon in our own precedents as well as in the English. Still it is believed not to be necessai-y in a State where only one sort of highway is known to the law. Crim. Pro- ced. II.'§ 1045. ^ This minute description of the local- ity of tlie defect does not accord with the precedents for other offences, where no writ or order to an officer commanding him to do something at the place is to be asked for (ante, '§ 1013); and though there are probably authorities which hold it to be necessary, they are believed not to be well founded. Crim. Proced. II. § 1045-1047. Still, if the pleader doubts, or if there is reason to fear that his court will hold to 558 the contrary or even doubt, safety lies in the insertion of the allegation. Defects at Various Places — (Additional Counts). — In Avchbold it is said: "If there be other parts of the highway out of repair, within the same parish [in a case where the parish is the party indicted], insert other counts specifying them." Archb. Crim. PI. & Ev. 19th cd. 970. To this no authorities are cited. In reason, the direction cannot be sound ; but, on the other hand, the dif- ferent places should be specified, one after the other, in the same count. A second count is, in essence, a second indictment. Crim. Proced. I. § 421, 422. It is never good to insert the part of an offence in one count and the rest in another. But what is deemed a complete offence is charged in each count. Now, if a highway is in the entire length of what is within the jurisdic- tion of the court defective, no one main- tains that there are as many separate offences of non-repair as there are feet or rods of such defective way. Then, if there are defective places, with intervals of good road between, is it otherwise'? To hold that then there is a separate offence for each defective place is equally absurd with the other. It seems to me, therefore, that CHAP. XGIII.] WAY. §1020 time, and still is, there very ruinous, miry, deep, broken, and in great decay, for want of due reparation and amendment of the same ; so that the people could not there during all said time go, return, pass, repass, ride, and labor with their horses, coaches, carts, and other carriages in, through, and along the said common highway as they ought and were wout and accustomed to do, without great danger of their lives, and the loss of their goods ;■' to the common nuisance of all the people [ante, § 775, 777, 1015], against the peace, &c.^ § 1018. Not making Road. — Similar to the foregoing is the indictment for neglecting to open and work a highway which by competent authority has been laid out.^ § 1019. Neglects by Road Officers — are a species of official mis- conduct, within explanations already made.* Also the indict- ment may partake, moi'e or less according to the circumstances, of that for non-repair just given.^ § 1020. Travellers Meeting. — For a violation of the statutory regulation, that, " whenever any persons shall meet each other on any road, travelling with carriages, &c. each person shall sea- sonably drive his carriage, &c. to the right of the middle of the the pleader ought to be safe, and before most courts will be, if he charges all the defects in one count; and that the peril lies in the opposite course. 1 The allegation here is needlessly ver- bose ; but, whatever we deem of its neces- sity, I should pi-actically preserve something of it. 2 Archb. Crim. PI. & Ev. 10th ed. 642, 19th ed. 970. For other forms and prece- dents, see 3 Chit. Crim. Law, 577-589 ; 4 Went. PI. 157-179, 184; 6 lb. 406-416; 6 Cox C. C. App. 74, 75 ; Rex v. Stough- ton, supra; Kex v. Harrow, 4 Bur. 2090; Rex V. St. Giles, 5 M. & S. 260 ; Rex v. Liverpool, 3 East, 86 ; Rexu. West Riding, 7 East, 588 ; Reg. v. Barton, 11 A. & E. 343 ; Reg. v. Midville, 4 Q. B. 240 ; Reg. V. Turweston, 16 Q. B. 109, 4 Cox C. C. 349; Reg. v. Waverton, 17 Q. B. 562, 2 Den. C. C. 340, 5 Cox C. C. 400; Reg. v. Denton, 18 Q. B. 761, Dears. 3 ; Reg. v. Gate Fulford, Dears. & B. 74, 7 Cox C. C. 230 ; Reg. u. Ramsden, Ellis, B. & E. 949 ; Rex V. Upton-on- Severn, 6 Car. & P. 133. Alabama. — Nowlin u. The State, 49 Ala. 41. Massachusetts. — Commonwealth v. Springfield, 7 Mass. 9 ; Commonwealth v. North Brookfield, 8 Pick. 463. New Hampshire. — The State v. North- umberland, 46 N. H. 156. New Jersey. — Tlie State v. Turnpike, 1 Harrison, 222. New York. — Waterford, &c. Turnpike 1,. People, 9 Barb. 161 ; People v. Branch- port, Ike. Plankroad, 5 Parker C. C. 604. North Carolina. — The State v. Pool, 2 Dev. 202 ; The State v. Patton, 4 Ire. 16 ; The State v. McDowell, 84 N. C. 798. Pennsylvania. — Phillips o. Common- wealth, 8 Wright, Pa. 197. Tennessee. — The State v. Murfreesboro', 11 Humph. 217 ; The State u. Bellville, 7 Baxter, 548. West Virginia. — Parkinson v. The State, 2 W. Va. 589. ^ For precedents, see The State v. New- fane, 12 Vt. 422 ; The State v. Jericho, 40 Vt. 121. * Ante, § 680 et seq. ^ For precedents, see 3 Chit. Crim. Law, 587, 588 ; 4 Went. PI. 178, 345 ; The State V. Tuley, 20 Misso. 422 ; The State v. Levens, 22 Misso. 469 ; The State v. Hali- fax, 4 Dev. 345, 346 ; The State i'. McEl- roy, 3 Heisk. 69. 559 § 1021 SPECIFIC OFFENCES. [BOOK III. travelled part of such road, so that the respective carriages, &c. may pass each other without interference," the averments may be, — That OD, &c. at, &c. A, &c. and one X, travelling with their respective wagons, met each other on a certain public road, whereupon the said A unlawfully did not then and there at said meeting seasonably drive his said wagon to the right of the middle of the travelled part of said road, so that the said respective wagons could pass each other without interference ; by reason of which neglect the wagon of the said A did then and there at said meeting interfere with that of the said X, and break that of the said X into pieces ; against the peace, &c.* II. The Railways. § 1021. Obstruction on Track. — Doubtless the putting of an obstruction on the track of a railway, the same as of any other road, is indictable at the common law.^ But the probable con- sequences are so much more serious that we have statutes specially against it; as, for example, making it a felony to "wil- fully and maliciously place any obstruction on the track of any railroad, or, &c. whereby the life of any person may be endan- gered." On this the indictment may charge, — That A, &c. on, &c. at, &c. did wilfully, maliciously, and feloniously place upon the track of the X Railroad two pieces of wood called railroad sleepers, and one piece of wood called a post [or, two iron rails, two large stones, and two large pieces of wood, or, &c. according to the fact], to the obstruction of said railroad track, whereby the lives of many and sundry persons travelling on said railroad, whose names are to the jurors unknown, were then and there endangered ; against the peace, &c.' 1 Substantially following the form, which ... to obstruct, upset, overthvow, injure, was adjudged good, in Commonwealth v. or destroy any engine, tender, carriage, Allen, 11 Met. 403. It was held not to be or truck using such railway, shall be necessary to describe more particularly the guilty of felony." 24 & 25 Vict. t. 97, street and place of meeting. § 35. And a precedent for the indictment 2 Crim. Law, II. § 1269, 1270. is,— s For precedents, see The State v. Went- ^hat A, &c. on, &c. at, &c. feloniously, worth, 37 N. H. 196; The State v. Beck- unlawfully, and maliciouslv did put and man, 57 N. H. 174. There are some dif- pjace a piece of wood upon a certain railway ferences in the terms of the several statutes called X [in the parish of N in the county of to punish this offence, and the pleader M, not necessary where the locality is stated should carefully cover those on which he at the beginning of the form], with intent is proceeding. The English provision is, thereby then and there to obstruct, upset, " Whosoever shall unlawfnlly and mali- overthvow, and injure a. certain engine and ciously put, place, cast, or throw upon or certain carriages using the said railway ; across any railway any wood, stone, or "Sa'ust the peace, &c. other matter or thing, or, &c. with intent See, for this form, with the statute, 560 CHAP. XCIII.] WAY, §1024 § 1022. other OfiFencea. — There are some other offences within this sub-title, but no further forms are here necessary.^ III. The Public Bridges. § 1023. Non-repair, &c. — Bridges are, in general, parts of the highways ; ^ and the indictment for the non-repair, not building, obstructing, and the like is substantially as explained under the first sub-title. No separate forms are needed.^ IV. The Public Squares and Pleasure- Grounds. § 1024. Erecting a Building. — An indictment adjudged good charged, in substance, but in more words than necessary, — That A, &c. on, &c. at, &c. did unlawfully and injuriously, in and upon a certain public square, being a common highway there, called the public Archb. Crira. PI. & Ev. 19th ed. 592, 593. In this instance, as in others where prece- dents are copied from this bool?, I have re- stored the allegation of place, rendered by late English statutes unnecessary. For other English forms, see Reg. v. Holroyd, 2 Moody & K. 339 ; Reg. v. Bradford, Bell, 268, 8 Cox C. C. 309 ; Reg. v. Had- field. Law Rep. 1 C. C. 253, fuller in 11 Cox C. C. 574 ; Reg. v. Hardy, Law Rep. 1 C. C. 278, 11 Cox C. C. 656 ; Reg. v. Monaghan, U Cox C. C. 608. Throw- ing stones, &c. Reg. c. Clark, Law Rep. 1 0. C. 54, 10 Cox C. C. 338 ; 2 Cox C. C. App. 3. Indiana. — Allison v. The State, 42 Ind. 354. Massachusetts. — Commonwealth v. Hicks, 7 Allen, 573 (horse-railroad car); Commonwealth «. Bakeman, 105 Mass. 53; Commonwealth v. Killian, 109 Mass. 345. Mississippi. — McCarty v. The State, 37 Missis. 411, 419. North Carolina. — The State v. Hinson, 82 N. C. 597 (for shooting with pistol at railroad cars). 1 For a form of indictment against a railroad corporation for putting down rails in an unanthorizcd manner, sec The State V. Portland, &c. Railroad, 58 Maine, 46. Unreasonably neglecting to ring a bell or blow a steam-whistle while the train is 36 crossing a public road, The State v. Ver- mont Central Railroad, 28 Vt. 583. 2 Crim. Law, IL § 1269 ; Stat. Crimes, §301. ' Hot Repairing. — For forms and pre- cedents, see 3 Chit. Crim. Law, 594, 595, 597, 599, 600 ; 4 Went. PI. 178, 187, 188 6 lb. 427 ; Rex v. Fanshaw, Trem. P. C. 199 ; Rex v. Essex, Trem. P. C. 205 : Rex V. Stains, Trem. P. C. 207 ; Rex u. Norwich, Trem. P. C. 208 ; Reg. v. Saint- hill, 2 Ld. Raym. 1174; Cumberland v. Rex, 3 B. & P. 354 ; Rex v. Kerrison, 3 M & S. 526 ; Rex v. West Riding of York- shire, 2 East P. C. 342 ; Rex v. Salop, 13 East, 95 ; Rex v. Kent, 13 East, 220; Reg. V. Derbyshire, 2 Q. B. 745 ; Reg. v. New Sarum, 7 Q. B. 941. Alabama. — Blann V. The State, 39 Ala. 353. Indiana. — Butler u. The State, 17 Ind. 450. Mas- sacliusetts. — Commonwealth v. Central Bridge, 12 Cusb. 242; Commonwealth v. Newburyport, 103 Mass. 129. North Caro- lina. —The State V. King, 3 Ire. 411; The State v. Yarrell, 12 Ire. 130. Not Building — or building improp- erly. 3 Chit. Crim. Law, 596 ; Rex v. Devon, 4 B. & C. 670 ; Commonwealth v. Newburyport Bridge, 9 Pick. 142 ; The State V. Canterbury, 8 Fost. N. H. 195; The State v. Whittingham, 7 Vt. 390. Pulling down — Injuring. — 6 Cox C. C. App. 115. 561 § 1026 SPECIFIC OFFENCES. [BOOK III. square [situate, &c.^], put, place, and set up [and cause to be put, placed, and set up °] one large wooden building [forty feet and upwards in length and thirty feet and upwards in breadth '] ; and the said building [so as aforesaid put, placed, and set up in and upon the aforesaid public square and common highway ^] he the said A did thence continually until the day of the finding of this indictment [ante, § 81-84], [with force and arms'], there unlawfully and injuriously uphold, maintain, and continue, and still doth uphold, maintain, and continue ; whereby the said public square being a common highway was, during all said time, and still is, greatly obstructed, nari'owed, and straitened, so that the people could not and cannot go, re- turn, pass, and repass, as they ought and were accustomed to do, in, upon, and through said public square being a common highway ; to the common nuisance of all the people [ante, § 775, 777], against the peace, &c.° § 1025. Other Injuries — may be charged in like manner, but no separate forms need here be given.^ V. The Rivers and other like Ways hy Water. § 1026. Obstructing Navigable River. — The allegations, follow- ing in substance the approved precedents, may be, — That on, &c. and thence continually until the day of the finding of this indictment, at, &c. the part of the river X lying and being within said county was and is a public navigable river and common highway for all the people,^ whereon to navigate, sail, row, pass, repass, and labor, at their will and pleasure, with their ships, barges, lighters, boats, wherries, and other vessels, without any impediment or obstruction whatsoever; where- upon A, &c. on, &c. aforesaid, at a certain place in said river there called N,^ did [describe here the obstruction], and did continue the same there during all the time aforesaid and still does continue the same there ; by means whereof the navigation and free passage of, in, through, along, and 1 This part of the allegation was cer- 238. For destroying a tree growing on tainly needless. See ante, § 1012, 1014, public grounds, Commonwealth o. Eckert, 1015, 1017. Or, at least, it would suffice 2 Browne, Pa. 249. to say situate in the village of N. And see 'The English precedents say here, Crim. Proced. II. § 1052. "from the time whereof the memory of 2 Needless, and better omitted. Ante, man is not to the contrary, hath been an § 139 and note, 829 and note. ancient river and the Queen's ancient and ' Needless. Crim. Proced. II. § 1052. common highway for all the liege subjects * Evidently the words in these brackets of our Lady the Queen and her predeces- add nothing to the allegation. sors." It is not prescription which makes 5 Unnecessary. Ante, § 43. our navigable rivers highways, hence there ^ The State v. Wilkinson, 2 Vt. 480. can be no propriety in our following this ' For laying dirt in a square, whereby form. a coach was overturned, 3 Chit. Crim. Law, 9 ^s to stating the special locality, see 622. For building a fence on a public ante, § 1013, 1015 and note, 1017 and common, Commonwealth v. Fisk, 8 Met. note. 562 CHAP. XCIII.J WAT. § 1029 upon the said river and common highway there, during all said time, were and still are greatly straitened, obstructed, and confined [so that the people navigating, sailing, rowing, passing, repassing, and laboring with their ships, barges, lighters, boats, wherries, and other vessels, in, through, along, and upon the said river and common highway there during the time afore- said could not, nor yet can, go, navigate, sail, row, pass, repass, and labor with their ships, barges, lighters, boats, wherries, and other vessels, upon and about their lawful and necessary affairs and occasions, in, through, along, and upon the said river and common highway there, in so free and uninterrupted a manner as of right they ought, and before have been used and accustomed to do^] ; to the common nuisance of all the people [ante, § 775, 777], against the peace, «&c.^ § 1027. Obstructing Creek. — A statute made it an indictable misdemeanor to " fell timber in, or otherwise obstruct the chan- nel of, Hogan's creek in the county of Caswell ; " and' it was good to allege, — That A, &c. on, &e. at, &c. in the county of Caswell, unlawfully and maliciously did fell timber in the channel of Hogan's creek there, and did then and there, by such felling of timber, obstruct the channel of said creek ; against the peace, &c.' § 1028. Other Watercourses. — The obstruction or diversion of other watercourses is sometimes ground for indictment, but no further forms are here required.* VI. The Harbors and Public Ponds. § 1029. In General. — The indictment for neglects and injuries to these public ways and waters follows so closely the forms 1 The matter in these brackets is taken Pennsylvania. — Werfel v. Common- from Archbold's form, and is common. I wealth, 5 Binn. 65 ; Commonwealth u. can discover no reason for deeming it Church, 1 Barr, 105 ; Zug u. Common- necessary. Certainly it may be greatly wealth, 20 Smith, Pa. 138. abridged. » The State v. Cobb, 1 Dev. & Bat. 115, 2 For forms and precedents, see Archb. omitting from the form as it stands in Crim. PI. & Ev. 10th ed. 641, 19th ed. 968 ; the book of reports some obvious sarplus- 3 Chit. Crim. Law, 633-641 ; Rex v. Bax- age. ter, Trem. P. C. 196 ; Rex v. Russell, 6 * For diverting watercourse, 3 Chit. B. & C. 566 ; Rex o. Ward, 4 A. & E. Crim. Law, 640 ; 4 "Went. PI. 222-224 ; 6 384, 408, note ; Reg. v. Stephens, 7 B. & Cox C. C. App. 75. Not cleansing, 3 Chit. S. 710 ; Reg. v. Dobson, 1 Cox C. C. 251. Crim. Law, 603. Stopping, 3 Chit. Crim. Alabama.— Ths State v. Bell, 5 Port. Law, 638 ; Stoughton v. The State, 5 Wis. 365. 291. Cutting gap in bank, 3 Chit. Crim. Indiana. — Neaderhouser v. The State, Law, 621. Canals, as to, 6 Cox C. C. 28 Ind. 257, 259. App. 23 ; Commonwealth v. Reed, 10 Massaichusetts. — Commonwealth v. Casey, Pa. 275. Gloucester, 110 Mass. 491. 663 § 1029 SPECIFIC OFFENCES. [BOOK III. already given in this chapter, that it would be little less than waste of space to add to them by averments special to the present Bub-title. In the note,^ some precedents are referred to ; but the pleader, by following the analogies of the preceding forms, can readily construct whatever else he may have occasion for. The principles and outlines thus appearing, the special adaptations will be easy. ' Suffering obstructions to harbor, so Stnrdivant, 21 Maine, 9. Other obstruc- that vessels cannot enter, 3 Chit. Grim, tions, Rex v. Tindall, 6 A. & E. 143 ; Law, 604. Erecting wall, 4 Went. PI. Commonwealth v. Alger, 7 Cush. 53; 190; Keg. 0. Russell, 3 Ellis & B. 942. Commonwealth v. Gloucester, 110 Mass. Obstructing harbor by wharf, The State v. 491. For WHITES AND BLACKS INTERMARRYING, see ante, § 739. WOMEN, see Rape and Carnal Abuse — Seduction and Abduction. WORKMEN, see Conspiracy — Labok Offences. WORSHIP, see Distcebing Meetings. > 564 CHAP. XCIV.] DEFENDANT BEFORE VERDICT. § 1031 BOOK IV. BEFORE AND AFTER. CHAPTER XCIV. STEPS BY THE DEFENDANT BEEOEE VEEDICT. § 1030. Introduction. 1031, 1032. Motion to Quash. 1033-1035. Plea to Jurisdiction. 1036-1039. Pleas in Abatement. 1040, 1041. Demurrers. 1042-1047. Pleas in Bar. 1048-1050. General Issue. 1051, 1052. Noh Contendere. 1053-1060. Pleadings subsequent to the Pleas. 1061-1063. Setting up Insanity. 1064. Change of Venue. 1065. Application for Continuance. § 1030. What for Chapter and how divided. — We shall in this chapter consider, in the following order, I. The Motion to Quash the Indictment ; II. The Plea to the Jurisdiction ; III. Pleas in Abatement; IV. . Demurrers ; V. Pleas in Bar; VI. The Gen- eral Issue ; VII. The Plea of Nolo Contendere ; VIII. Pleadings subsequent to the Pleas ; IX. Setting up Insanity in Defence ; X. The Change of Venue ; XI. The Application for a Con- tinuance. I. The Motion to Quash the Indictment.^ § 1031. Form of Motion. — It being within the judicial dis- cretion of the court to quash an indictment without motion, or 1 Direct expositions. Grim. Proced. I. 264 h, 264 /, 269, 425, 442, 455, 713, § 758-774. Incidental, Crim. Law, I. 715, 882, 1371; II. § 872; Stat. Crimes, § 1014, 1027; Crim. Proced. I. § 114, §262. 565 § 1034 BEPOEE AND APTEH. [BOOK IV. to refuse on motion,^ there can be and is no one form for the motion indispensable. It may follow the usages of the particular tribunal as to other motions; thus, after entitling the cause, — And now comes the said A [the defendant] and moves to quash the said indictment, for that, &c. [particularizing the reasons].^ § 1032. Form of Entry. — If the court quashes the indictment, its order upon the record simply states the fact in brief; as, in one case, where the quashing was as to one of several defendants, it was in substance, — After hearing [the respective counsel], it is ordered that the indictment in this cause be, and the same is hereby, quashed as to the defendant C.° II. The Plea to the Jurisdiction.* § 1033. Commonly Needless — (Distinctions). — There is a very narrow margin in criminal cases, and in civil a wider one, of juris- dictional objections which, pertaining to what is supposed to be the mere convenience of the parties, they may waive. But, aside from this sort of exception, a court without jurisdiction in a cause can take no step in it valid in law ; and, as well without plea as with, it will be dismissed or quashed whenever, in any stage of it, the fact appears on the face of the record, or is in any other permissible way brought to the judicial notice.^ Even it is said that, as late as after the general issue is pleaded, the court will receive afSdavits of facts to sustain a motion to quash the indict- ment on this ground.^ Therefore, whatever defendants ma}' do at their election, seldom will they be under the necessity of plead- ing a want of jurisdiction in order to procure, for this cause, a dismissal of the proceedings.'' § 1034. Form. — The common form of the plea, to which the 1 Crim. Proced. I. § 758, 759, 761. see Crira. Law, I. § 99-203, 1028, 1029 ; 2 For forms, see Commonwealth n. Le- II. § 1022 ; Crim. Proced. I. § 50, 96, 123, gassy, 113 Mass. 10; People v. Moody, 5 228, 236-239, 314 a-316, 375, 664, 724 Parker C. C. 568, 571 ; Pierce v. The 772, 893, 1350 ; II. § 910 a, 914 ; Stat. State, 12 Texas, 210; The State w. Kuther- Crimes, § 84, note, 92 ft, 112, 141, 142 164 ford, 13 Texas, 24; Davis's Case, Chase 180, 197, 198, 804, 810. Concerning the Dec. 1, 84, 85; United States ti. Pond, 2 plea to the jurisdiction, Crim. Proced. I. Curt. C. C. 265, 266. § 736, 746, 794. 3 Coats V. People, 4 Parker C. C. * Crim. Law, I. § 1028; Crim. Proced. 662, 667. For another form, see People I. § 50, 96, 123, 316, 772, 893. V. Moody, 5 Parker C. C. 568, 571. « Reg. v. Heane, 4 B. & S. 947. * For various questions of jurisdiction, ' Archb. Crim. PI. & Ev. 19th ed. 134 666 CHAP. XCIV.j DEPENDANT BEFORE VERDICT. §1035 prosecuting officer may reply or demur, as the case requires, is, after entitling it, — And the said A [the defendant], in his own proper person, comes here into court, and, having heard the said indictment read, says, that the court here ought not to take cognizance of the felony [or, misdemeanor, or, &c. giving any other proper designation] in the said indictment specified ; be- cause, protesting that he is not guilty of the same, nevertheless the said A says, that, &c. [setting out the matter showing the want of jurisdiction, and, in cases where there is a jurisdiction in another tribunal, specifying it ^] ; and this the said A is ready to verify. Wherefore he prays judg- ment if the court here will or ought to take cognizance of the indictment aforesaid, and that he may be dismissed and discharged therefrom.^ § 1035. Entry of Withdra-wal of Juror and Not Guilty to plead to Jurisdiction. — The "withdravral of pleas to admit of other steps is explained in " Criminal Procedure." ^ In an English case is the following entry, given here in exact words : — " Upon the motion of Charles Hamilton Gordon, esquire, and Jodrell, esquire, being assigned as counsel for the defendants in this cause. ^ Rex V. Johnson, 6 East, 583, 597 ; Mostyn v. Fabrigas, Cowp. 161, 172 ; Heil- man v. Martin, 2 Ark. 158 ; Fields «. "Walker, 23 Ala. 155 ; Rea v. Hayden, 3 Mass. 24 ; Lawrence u. Smith, 5 Mass. 362 ; Jones v. Winchester, 6 N. H. 497. I have stated the doctrine in the text as I understand it, though there is room for question as to what is its exact form. In Rex V. Johnson, supra, which is the only criminal case among those cited in this note, the court seems to have deemed the doctrine universal ; and, no competent ju- risdiction appearing in the plea, it was pronounced ill as amounting to an argu- pientative general issue. Chitty, treating of civil pleading, says this rule applies to actions in the " superior courts ; " but, in those in an " inferior court," "it was suffi- cient to allege that the cause of action ac- crued out of its jurisdiction, without show- ing the jurisdiction to which the plaintiff should have resorted." 1 Chit. PI. 445. As to another point in Rex v. Johnson, the books show that, in criminal cases, pleas to the jurisdiction have always been com- mon, quite irrespective of the question whether the same matter might have been taken advantage of or not on "not guilty," on the motion to quash, or on any of the other steps open to defendants. '■* For precedents, involving a consider- able variety of circumstances, see Archb. Crim. PI. & Ev. 19th ed. 134 ; 4 Chit. Crira. Law, 505-516; 4 Went PI. 63 ; Rex v. Williams, Trem. P. C. 48, 52 ; Rex v. Devonshire, Trem. P. C. 188 ; Rex v. D. Trem. P. C. 271 ; Rex v. Holies, Trem. P. C. 294, 298, 300 ; Rex v. Fitzharris, 8 Howell St. Tr. 243, 251, 263 ; Rex v. Kin- loch, Foster, 16, 18, 19 ; Rex v. Johnson, 6 East, 583. Massachusetts. — Commonwealth v. Johnson, 8 Mass. 87. Michigan. — Washburn v. People, 10 Mich. 372. Mississippi. — Sam v. The State, 31 Missis. 480. New York. — People v. Fish, 4 Parker C. C. 206 ; People v. Gardiner, 6 Parker C. C. 143. Pennsylvania. — Clark v. Common- wealth, 5 Casey, Pa. 129, 130. United States. — United States v. Carter, 4 Cranch C. C. 732 ; United States v. Mor- ris, 1 Curt. C. C. 23 ; United States o. Rogers, 4 How. U. S. 567, Hemp. 450; United States v. Penn, 4 Hughes, 491, 492. 8 Crim. Proced. 1. § 124, 747, 793, 801. For a form of the motion, see The State v. Hale, 44 Iowa, 96. 567 § 1037 BEFORE AND APTEE. [BOOK IT. and by their consent, and also at the desire and request and by the consent of the defendants now at the bar here, and also by the consent of Mr. At- torney-general on behalf of the King, it is ordered by the court here, that Richard Foy the last of the jurors sworn and impanelled in this cause be withdrawn out of the panel, and that the rest of the jurors in this cause be discharged ; no evidence whatsoever having been given to the said jury in this cause either on the part of the King or of the defendants. And it is farther ordered by the court here, that the said defendants have leave to withdraw their pleas of not guilty by them formerly pleaded to the indict- ment in this cause, and have leave to plead to the jurisdiction of this court ; and that the said defendants have time till to-morrow to put in such plea ; and that they deliver copies of such plea to Mr. Sharpe, solicitor for the King in this cause, by eight of the clock this evening. And thereupon the said defendants do now here at the bar withdraw their said pleas of not guilty, in order to put in such plea to the jurisdiction of this court as aforesaid." ^ III. Pleas in Abatement? § 1036. How — these pleas should be constructed we saw in another place.^ One of them, now in consequence of modern legislation less used than formerly, is for — § 1037. Misnomer* — The form, after the entitling of the cause, is,— And B [giving the true name], who is indicted by the name of A, in his own proper person comes into court here, and, having heard the said in- dictment read, says, that his name is and from his nativity hitherto has been B, by which name he has always been called and known ; * without this, that he the said B now is, or at any time hitherto has been, called or known by the name of A, as by said indictment is supposed, and this he the said B is ready to verify. Wherefore he prays judgment of the said indictment, and that the same may be quashed.' ^ Rex V. Kinloch, Foster, 16, 17. method is legally good, that' in the text 2 Crim. Proced. I. § 730, 738-740, 745, will commonly be the more available with 746, 749, 754-757, 783, 789-793, 883-885, us. Crim. Proced. I. § 686. 1048. ' For precedents, see Archb. Crim. PI. 8 lb. § 745,793; Dolan ...People, 64 & Ev. 1.3th ed. 112; 4 Chit. Crim. Law, N. Y. 483, 492 ; United States v. Ham- 520, 521 ; Rex v. Knowles, Trem. P. C. 11, mond, 2 Woods, 197, 201. 12; Rex v. Layer, 16 Howell St. Tr. 93, * For the doctrine of the name and ad- 114. dition, see Crim. Proced. I. § 669-689 6. Alabama. — Lawrence v. The State, 59 ^ A common English form is here, Ala. 61. "that he was baptized by the name of New Yorh. — Bamesciotta v. People, 10 James, to wit, at the parish aforesaid, in Hun, 137. the county aforesaid, and by the Christian Ohio. — Lasnre v. The State, 19 Ohio name of James hath also since his baptism State, 43. hitherto been called or known." Archb. Tennessee. — Lewis v. The State, 1 Head, Crim. PI. &Et. 13th ed. 112. While either 329. 568 CHAP. XCIT.] DEPENDANT BEFORE VERDICT. §1038 § 1038. Grand Jury.^ — The plea in abatement that the grand jury was not legally competent, or that the indictment was not duly returned into court,^ or, if admissible, was founded on illegal evidence,^ will, except as to its formal parts, greatly vary with the special facts. And any attempt to set down words for un- foreseen facts would be worse than useless. Even the formal parts are not quite uniform in the precedents, but there is noth- ing better for them than a substantial copying of the plea for misnomer just given. So that the averments may be, — And the said A in his own proper person comes into court here, and, having heard the said indictment^ read, says, that, &c. [setting out the defect according to the special fact and with a view to the law, which dif- fers somewhat in our States ; as], that X, one of the jurors of the grand jury by whom the said indictment was found and returned into court here, was not, when said grand jury was impanelled, or afterward, or when it found said indictment, or when it returned the same into court here, a free- holder or a housekeeper in said county of M,^ and this the said A is ready to verify. Wherefore he prays judgment of the said indictment, and that the same may be quashed." 1 Crim. Proced. I. § 883-885. 2 lb. § 869 a ; Long v. The State, 56 Ind. 133. 3 Crim. Proced. I. § 872-874 , The State V. Parrish, 8 Humph. 80 ; French v. People, 3 Parker C. C. 114, 117. * In a part of the precedents, the expres- sion is "supposed indictment." I should think this adjective desirable where the defect is of a sort rendering the indictment void. But where, as in most of the cases, it is only voidable, there would appear to be no particular propriety in its use. Doubtless, in point of law, the plea is equally good either way. 6 The State v. Hawkins, 5 Eng. 71 ; Barney v. The State, 12 Sm. & M. 68, 71. ^ For precedents, see Rex v. Leech, 9 Howell St. Tr. 351, 355 ; Reg. v. Duffy, 1 Cox C. C. 283 ; Reg. u. DuiFy, 4 Cox C. C. 172. Alabama. — The State v. Middleton, 5 Port. 484, 485, 486 ; Oliver v. The State, 66 Ala. 8. Arkansas. — The State v. Hawkins, 5 En^. 71. Connecticut. — The State v. Hamlin, 47 Conn. 95. Indiana. — Hardin v. The State, 22 Ind. 347 ; Kambieskey v. The State, 26 Ind. 225 ; Long v. The State, 56 Ind. 133 ; Meiers v. The State, 56 Ind. 336, 339 ; Sater v. The State, 56 Ind. 378. Maine. — The State v. Ward, 64 Maine, 545, 546 ; The State v. Flemming, 66 Maine, 142 ; The State v. Heselton, 67 Maine, 598. Massachusetts. — Commonwealth v. Bannon, 97 Mass. 214 ; Commonwealth v. Moran, 130 Mass. 281. Michigan. — Findley v. People, 1 Mich. 234. Mississippi. — Barney u. The State, 12 Sm. & M. 68, 71 ; Baker v. The State, 23 Missis. 243. Nebraska. — Barton v. The State, 12 Neb. 260. New Mexico. — Carter v. Territory, 1 New Mex. 317. New York. — People v. Moneghan, 1 Parker C. C. 570 ; French u. People, 3 Parker C. C. 114, 117 ; People v. Cyphers, 5 Parker C. C. 666, 670 ; Stokes v. People, 53 N. Y. 164 ; Dolan v. People, 64 N. Y. 485. United States. — United States v. Ham- mond, 2 Woods, 197, 201. 669 § 1042 BEFORE AND AFTER. [BOOK IV. § 1039. Other Pleas in Abatement, — if required, can be readily framed after the model of the foregoing. Not often will there be occasion for others.^ IV. Demurrers? § 1040. Here and Elsewhere. — Only demurrers to the indict- ment are for this place, those to pleas and the like are for the eighth sub-title. § 1041. Form. — There are verbal differences in the prece- dents ; but it well accords with usage to say, after entitling the cause, — And the said A [the defendant] in his own proper person comes into court here, and, having heard the said indictment read, says, that the said indictment and the matters therein are, as therein alleged and set forth, not sufficient in law to compel him the said A to answer thereto [if the demurrer is special, add here, for that, &c. stating the specific objec- tions in detail], and this he the said A is ready to verify. Wherefore he prays judgment, and that by the court here he may be dismissed and discharged of the said indictment.' V. Pleas in Bar.^ § 1042. Former Conviction or Acquittal.^ — The only essential difference between the pleas of autrefois convict and autrefois acquit is, that the one has the word " convicted " where the other has " acquitted ; " though, among some of the precedents, other 1 Wrong Addition, or none. — In not & Ev. 19th ed. 138; 4 Chit. Crim. Law, many of our States, if in any, is this a 517-519 ; 6 Went. PI. 408 ; Rex v. John- ground of abatement. Ante, § 74. For soh, Trem. P. C. U9, 123; Kex v. A. B. forms of the plea, see 4 Chit. Crim. Law, Trem. P. C. 269, 270. 520, 522, 524 ; 2 Stark. Crim. PI. 2d Alabama. — Perkins J>. The State, 50 ed. 784, 785 ; Rex j. Grainger, 3 Bur. Ala. 154; Cheatham v. The State, 59 Ala. 1617. 40. Another Indictment Pending. — This Iowa. — The State v. Baumon, 52 Iowa, is not commonly ground for abatement. 68. Crim. Law, I. § 1014. Still, for forms of Nevada. — The Stater. Harris, 12 Nev. the plea, see Rex v. Nosworthy, Trem. 414,417. P. C. 75 ; Reg. u. Mitchel, 3 Cox C. C. New York. — People v. Gilkinson, 4 93, 106; Austin i). The State, 12 Misso. Parker C. C. 26, 28 ; People w. Fish, 4 Par. 393. ker C. C. 206, Sheldon, 537, 538. 2 Crim. Proced. I. § 775-786. Inciden- Ohio. — The State v. Barker, 28 Ohio tal, Crim. Law, I. § 1027 ; Crim. Proced. State, 583. I. § 424, 442, 730, 730 a, 741, 746, 793, 4 Crim. Proced. L § 742, 745-756, 805- 1286. 848 ; II. § 1049 ; Stat. Crimes, § 264. 8 For precedents, see Archb. Crim. PI. ' crim. Proced. I. § 808-817. 670 CHAP. ZCIT.] DEPENDANT BEFORE VERDICT. § 1043 slight differences, of no legal consequence, may be discovered. Considering that this is a favored plea, wherein the lowest sort of certainty will suffice,^ it is remarkable as having been con- structed to embrace much more of minute allegation than, at first impression, any just view of the principles involved would seem to require.^ Still, as the common-law forms are not quite without support in reason, and as briefer methods are widely provided for by legislation, it will not be advisable to attempt here any amend- ment in what of the old appears to be established. So that — § 1043. Common-law Plea. — The plea, after being entitled, may proceed, — And the said A in his own proper person comes into court here, and, having heard the said indictment read, says, that the said Commonwealth [^or State, or People, or United States] ought not further to prosecute the same against him ; because he says, that heretofore at a court of, &c. [enlarging the allegations here until they cover the entire matter of the caption of the former indictment], it was [not " is," but employing here and throughout the past tense where the record ' has the present *] by the oath [or oath and affirmation] of the jurors of the said Commonwealth [^or, State, or, &c. as before] ' presented, that the said A, by the name and description of, &c. [giving the name and addition precisely as they stand in the indictment being copied], on, &c. at, &c. [proceeding with verbal accu- racy to the very end of such indictment], to which last-mentioned indict- ment the said A pleaded not guilty and the said Commonwealth [or, &c.] joined issue on said plea ; and a jury, thereupon duly summoned, impan- elled, and sworn to try said issue, upon their oath did say that the said A was guilty [^or not guilty] of the felony [or treason, or misdemeanor, or offence] in the said last-mentioned indictment laid to his charge [or, if the plea was guilty, this finding of the jury will be-omitted], whereupon it was by the said last-mentioned court considered that, &c. [setting out the sentence ° of conviction, or of acquittal and discharge],' as by the record thereof more fully and at large appears [which judgment still remains in 1 lb. § 745, 808. indicating that thejecord, from the indict- 2 See the elucidations in the chapter, ment down to this place, should be fully ante, § 91-97 ; where, however, some jus- set out. But the reason (ante, § 93-95) tification of the established methods in which requires the indictment to appear these pleas is attempted. fully in exact words does not apply to the 8 Crim. Proced. I. § 1349. remaining part of the record. Nor do the * Compare with ante, § 94. precedents in general set out such record ^ Ante, § 57, and see § 53-64. These thus fully. I am quite sure there ought several allegations should conform to the not to be any difference of opinion as to record, so they will not always stand pre- the sufficiency of these allegations in the cisely as in the text. text. Many precedents accepted as good " Or, as to how much, see Crim. Pro- have less. See, for example, Reg. v. Aus- ced. I. § 815. tin, 2 Cox C. C. 59. ' We may find in the books passages 671 § 1043 BEFOEE AND AFTER. [book IV. full force and effect, and not in the least reversed or made void *]. And the said A avers, that he and the A \^or B] who was the defendant in the in- dictment recited in this plea and convicted [or acquitted] as aforesaid are one and the same person, and not divers and different persons ; and that the offence in the said last-mentioned indictment set out and the one charged in the indictment to which this plea is pleaded are one and the same offence, and not divers and different offences [adding, also, in such special circumstances as may seem to require, other averments of identity, according to the par- ticular facts]. AH of which the said A is ready to verify ; " wherefore he prays judgment, and that by the court here he may be dismissed and dis- charged from the premises in the present indictment specified and con- tained. [Here the plea ends. But opinions differ as to whether or not the plea of not guilty should be added.' If it is added, the form proceeds] : And as to the felony and larceny " [or felony, or misdemeanor, or offence] of which the said A stands here indicted, he says that he is not guilty thereof, and of this he puts himself upon the country.^ ' The matter in these brackets is not in all the precedents ; it is not essential to a prima facie case, therefore it is unnecessary. If the plea were in abatement, and so re- quiring a possible answer to be anticipated and overthrown, it would be different. 2 In Reg. V. Austin, 2 Cox C. C. 59, 60, Pratt, B. said : " You should have con- cluded with a verification, for your plea in- troduces new matter. But the court will give you permission to amend, as it is only an informality." s Crim. Proced. I. §811, 812. * Peg. V. Green, Dears. & B. 113, 114; Reg. V. Austin, 2 Cox C. C. ,59, 60. * I have not found any one precedent which in every respect answered the require- ments of ray text. So this form is in some degree constructed on a comparison of pre- cedents. And see, for forms and prece- dents, at common law and under statutes, not only for this plea, but also for the pro- ceedings and pleas where there has been a jeopardy in a cause which did not progress to a conviction or acquittal, but which was still supposed to entitle the defendant to his discharge from the second or same in- dictment, Archb. Crim. PI. & Ev. 10th ed. 89, 91 ; 4 Chit. Crim. Law, 528-539, 567 ; Rex V. Essex, Trem. P. C. 205, 206 ; Rex V. Clark, 1 Brod. & B. 473 ; Rex v. Em- den, 9 East, 437 ; Rex v. Taylor, 3 B. & C. 502 ; Reg. v. Charlesworth, 1 B. & S. 460, 463, 9 Cox C. C. 40 ; Winsor v. Reg. Law Rep. 1 Q. B. 289 J Rex v. Vandercomb, 2 Leach, 4th ed. 708 ; Rex v. Dann, 1 672 Moody, 424 ; Reg. v. Bird, 2 Den. C. C. 94, 224 ; Reg. v. Green, Dears. & B. 113, 7 Cox C. C. 186; Rex v. Sheen, 2 Car. & P. 634, 635 ; Reg. v. Walker, 2 Moody & R. 446 ; Reg. v. Davison, 2 Post. & F. 250 ; Reg. v. Austin, 2 Cox C. C. 59 ; Reg. V. Mitchel, 3 Cox C. C. 93 ; Keg. o. Bird, 5 Cox C. C. 11 ; Reg. u. Connell, 6 Cox C. C. 178 ; Reg. v. Davison, 8 Cox C. C. 360 ; Reg. v. Elrington, 9 Cox C. C. 86; Reg. v. Westley, 11 Cox C. C. 139, 140; Reg. v. Tancock, 13 Cox C. C. 217; Rex V. Foy, Vern. & S. 540. Alabama. — The State v. Stand ifer, 5 Port. 523 ; McCauley v. The State, 26 Ala. 135 ; Barrett v. The State, 35 Ala. 406, 408 ; Lyman v. The State, 45 Ala. 72, 74 ; Lyman v. The State, 47 Ala, 686 ; White V. The State, 49 Ala. 344. Arkansas. — Rector v. The State, 1 Eng. 187; Atkins u. The State, 16 Ark. 568; Wilson v. The State, 16 Ark. 601 ; The State V. McMinn, 34 Ark. 160, 161. Connecticut. — The State v. Allen, 46 Conn. 531. Indiana. — The State v. Wilson, 50 Ind. 487 ; The State v. Morgan, 62 Ind. 35, 37 ; Bryant v. The State, 72 Ind. 400. Massachusetts. — Commonwealth v. Cunningham, 13 Mass. 245 ; Common- wealth V. Curtis, 11 Pick. 134; Common- wealth V. Roby, 12 Pick. 496 ; Common- wealth V. Peters, 12 Met. 387 ; Common- wealth V. Harris, 8 Gray, 470 ; Common- wealth V. Bakeman, 105 Mass. 53 ; Com- monwealth V. Farrell, 105 Mass. 189; Com- CHAP. XCIV.] DEFENDANT BEFOEE VERDICT. §1044 §1044. Former Jeopardy -without Conviction or Acquittal.^ — Minute directions for the various steps under this head are given in " Criminal Procedure." And the references in the notes to the last section include those to the forms under this. But these forms are not, in general, particularly well constructed, while yet a revision of them for this place seems not to be called for. The plea in the nature of a former acquittal may be framed from that in the last section, by simply varying it to conform to the differ- ent facts.2 The other forms, demanded by the varying exigencies of cases, will be obvious. monwealth o. Bosworth, 113 Mass. 200; Commonwealtli v. Bressant, 126 Mass. 246. New Yorlc. — Grant v. People, 4 Parker C. C. .527, 529 ; People v. Van Keuren, f> Parker C. C. 66 ; People d. Cramer, 5 Parker C. C. 171 ; Gartliner v. People, 6 Parker C. C. 155 ; Canter v. People, 1 Abb. Ap. 305, 306. Pennsylvania. — Commonwealth v. Clue, 3 Rawlo, 498 ; McCreary •/. Com- monwealth, 5 Casey, Pa. 323. Tennessee. — Hite v. The State, 9 Yerg. 357, 359 ; McGinnis v. The State, 9 Humph. 43 ; Mikels v. The State, 3 Heisk. 321 Texas. — Pritohford v. The State, 2 Texas Ap. 69. Vermont. — The State v. Damon, 2 Ty- ler, 387. Virginia. — Commonwealth v. Myers, I Va. Cas. 188, 3 Wheeler Crim. Cas. 545 ; Eobinson v. Commonwealth, 32 Grat. 866. 1 Criin. Proced. I. § 818-831. 2 In Hobinson . Reg. 3 Cox C. C. 318, 325 motion, suggesting diminution, see Crimm O'Brien v. Reg. 3 Cox C. C. 360, 373 u. Commonwealth, 119 Mass. 326, 328. O'Neill v. Reg. 6 Cox C. C. 495, 498 595 §1091 BBFOEE AND AFTER. [book it. § 1091. Other Forms, — not differing from those used in civil causes, or not difficult of construction, might be sometimes con- venient ; but, at the places referred to in connection with those already given, and in the books of civil practice, they can be readily found. Nor, though other topics could be added not quite unprofitably, is there any urgent occasion for them. So it is best that this chapter and the volume here close. "Whelan v. Reg. 28 U. C. Q. B. 2 ; Corn- wall V. Eeg. 33 U. C. Q. B. 106. Delaware. — Gray v. The State, 2 Har- ring. Del. 76, 77. Massachusetts . — Brien v. Common- wealth, 5 Met 508 ; Turns v. Common- wealth, 6 Met. 224 ; Jeffries v. Common- wealth, 12 Allen, 145 ; Crimm v. Com- monwealth, 119 Mass. 326, 327. 596 Mississippi. — Byrd v. The State, 1 How. Missis. 247 ; King v. The State, 5 How. Missis. 730. New Jersey. — Donnelly v. The State, 2 Dutcher, 463, 475. New York. — Hayen v. People, 3 Par- ker C. C. 175. Texas. — Harris v. The State, 1 Texas Ap. 74, 77. INDEXES. INDEX TO THE CASES CITED IN THIS VOLUME. Note. — Where the plaintiff is the liing or queen (Rex or Eeg.), the State, Commonwealth, People, United States, or the like, the defendant's name is put first. The plaintiff's is first in the other cases. Section A. B., Eex V. (Trera. P. C. 269) 1041, 1046 Abbot, State v. (11 Post. N. H. 434) 642 Abbott, Reg. v. (1 Den. C. C. 273 ; 2 Car. & K. 630 ; 2 Cox C. C. 430) 420 , State w. (8 "W. Va. 741) 520 Ab?ood, Rex v. (2 Car. & P. 43f)) 977 Absence, State v. (4 Port. 397) 742, 745 Achterberg v. State (8 Texas Ap. 463) 699, 717 Adams v. Com'th (23 Grat. 949) 582, 602 , Commonwealth v. (1 Gray, 481) 642 , Com'th V. (7 Gray, 43) 582, 916 , Com'thy. (127 Mass. 15) 116, 138, 143 , People ;;. (17 Wend. 475) 642 , Rex V. (Jebb, 135) 853 v. State (55 Ala. 143) 254 V. State (60 Ala. 52) 582, 606 V. State (65 Ind. 565) 520 , State t). (16 Ark. 497) 997,1001 , State V. (Mart. N. C. 30) , State V. (6 N. H. 532) Addison v. State (3 Texas Ap. 40) Adell V. State (34 Ind. 543) Adey, Reg. v. (1 Den. C. C. 571) Adkinson v. State (5 Baxter, 569) Adler, People v. (3 Parker C. C. 249) 1082 Admiralty Case (13 Co. 51) Agee !,■. State (64 Ind. 340) Ah Chew, State v. (16 Nev. 50) Ah Ho, People v. (1 Idaho Ter. 691) 782 Ah Sam, State v. (7 Nev. 127) Ah Woo, People v. (28 Cal. 205) Ainsworth «. State (5 How. Missis. 242) 206, 558 Airey, Rex v. (2 East, 30) 420, 425 Albert, Reg. d. (5 Q. B. 37) 777, 802 Albrecht v. State (8 Texas Ap. 216) 642, 658 V. State (8 Texas Ap. 313) 85, 642, 653 Albro, Com'th v. (1 Gray, 1) 642, 645 520 642 582 205 40! 254 116 205 997 777, 787 254 460 Section Alcott V. State (8 Elackf. 6) 509, 997, 998 Alderman v. State (57 Ga. 367) 582, 610 , State V. (40 Iowa. 375) 777, 782 Aldrich V. People (101 lU. 16) 916 Aldridge, State 0. (3 Dev. 331) 148 , State V. (86 N. C. 680) 633, 635 Alewav, Rex v. (Trem. P. C. 214) 156, 944 Alford'w. State (8 Texas Ap. 545) 77 Alger,' Com'th v. (7 Cush. 53) 1012, 1029 Alibez, People v. (49 Cal. 452) 206, 558 Alison, Reg. v. (8 Car. & P. 418) 952 Allen, Com'th v. (11 Met. 403) 1012, 1020 , Commonwealth v. (128 Mass. 46) 180 People V. (5 Denio, 76) , Reg. V. (1 Den. C. C. 364 ; 2 Car. & K. 869 ; 3 Cox C. C. 270) , Reg. V. (2 Moody, 179 ; 9 Car. & P. 521) , Rex V. (Trem. P. C. 216) V. State (4 Baxter, 21 ) V. State (10 Ohio State, 287) V. State (13 Texas Ap. 28) !.'. State (5 Wis. 329) , State V. (46 Conn. 531) , State V. (3 Hawks, 614) , State V. (4 Hawks, 356) , State V. (69 Ind. 124) , State V. (32 Iowa, 248) 83 403 , State V. (64 Misso. 67) , State V. (69 N. C. 23) Allisbach, State v. (69 Ind. 50) 904 569 695 180 210 642 1043 582 925 489, 494 642, 777, 820, 822 1068 699, 712 582, 598, 992 Allison V. State (42 Ind. 354) 1012, 1021 Almon, Rex v. (20 Howell St. Tr. 803) 619 Alsey V. State (39 Ala. 664) 582, 608 Alviso, People v. (55 Cal 230) 520, 542 Amann v. Damm (8 C. B. n. s. 597) 619 Amarro, Rex v. (Russ. & Ry. 286) 89, 696 Amery, Rex v. (Trem. P. C. last page) 1060 , State V. (12 R. I. 64) 642, 644 699 ASH INDEX TO THE CASES CITED. BAI Section Ames, State v. (64 Maine, 386) 106, 852 , State V. (1 Misso. 524) 489, 5U6 , State «. (10 Misso. 743) 489,502 Ammons, State v. (3 Murph. 123) 871 Anderson v. Baker (3 Dowl. P. C. 107) 76 V. Commonwealth (5 Rand. 627) 944 v. State (48 Ala. 665) 58, 2.54 V. State (65 Ala. 553) 460 y. State (34 Ark. 257) 904,905 V. State (3 Heisk. 86) 520 V. State (7 Ohio, 250) 460 V. State (9 Texas Ap. 177) 489, 506 , State V. (.30 Ark. 131 ) 489, 663, 670 , State V. (47 Iowa, 142) , State !). (19 Misso. 241) 420 111, 206, 904, 910 1085 777, 802 944, 948 916 916 650 415 , State V. (3 Sm. & M. 751) Andery v. State (56 Ind. 328) Andre v. State (5 Iowa, 389) Andrews, Com'th v. (2 Mass. 14) , Commonwealth v. (3 Mass. 126) , State V. (26 Misso. 169) 642 , State V. (51 N. H. 582) Anglesea, Kex v. (18 Howell St. Tr. 197) 206 Annesley, Rex v. (17 Howell St. Tr. 1094) 520, 539 Anonvmoas (3 Camp. 74) 138, 141 fjeDb, 155) 927 (3 Wils. 1-26) 172 Anscomb v. Shore (1 Camp. 285) 172 Anthony v. State"(4 Humph. 83) 489, 506 V. State (13 Sm. & M. 263) 553 , United States v. (14 Blatch. 92) 973 Antle V. State (6 Texas Ap. 202) 997, 999 Antrobus, Rex v. (6 Car. & P. 784) 680, 690 Apel, St.ate !) (14 Texas, 428) 176 Arbinti-ode v. State (67 Ind. 267) 642, 652. Arbogast, State v. (24 Misso. 363) 642 Arbuckle v. State (32 Ind. 34) Archer, Res:. "• (Dears. 449 ; 6 C. C. 515) V. State (9 Texas Ap. 78) V. State (10 Texas Ap. 482 990 Cox 420 642 I 85, 642, 653 871, 876 582 452 58, 881 Arden v. State (11 Conn. 408) Arlen v. State (18 N. H. 563) Armfield, State v. (5 Ire. 207) Arraington, State v. (25 Minn. 29 Armstrong, Reg. v. (20 U. C. Q. B. 245) 403 Arnold, Com'th v. (4 Pick. 251) 489, 503 , People V. (46 Mich. 268) 285, 290 , Respublica v. (3 Yeates, 417) 1012, -, Rex V. (16 Howell St. Tr. 695 V. State (52 Ind. 281) Arnope, Rex v. (Trem. P. C. 91) Arrington, State v. (3 Murph. 571) Arter, State );. (65 Misso. 653) Anindell, Reg. v. (Trem. P. C. 271) Ashby Folville, Reg. v. (10 Cox C. C. 269) 1046, 1059 600 1015 694, 696 933 274 582 582 1045 Section Ashby, Territory v. (2 Mon. Ter. 89) 1012 Ashley, Commonwealth v. (2 Gray, 356) 82, 777, 782, 783, 784 Ashmall, Reg. u. (9 Car. & P. 236) 138, 142 Ashton, Commonwealth v. (125 Mass. 384) 420, 432 Ashworth v. State (63 Ala. 120) 699, 716 V. State (9 Texas, 490) 148 Aslett, Rex i;. (2 Leach, 958 ; Kuss. & Ry. 67 ; 1 N. R. 1 ) Aspinall, Reg. v. (1 Q. B. D. 730 ; 2 Q. B. D. 48; 13 Cox C. C. 231) Atkins, Rex v. (7 Howell St. Tr. 231) 115, 116, 118, 520, 539 , Rex V. (Trem. P. C. 230 ; 3 Mod. 3 ; 2 Show. 236) v. State (60 Ala. 45) V. State (16 Ark. 568) State B. (42 Vt. 252) 403 285 391 642, 652 1043 619 Atkinson, Reg. v. (11 Cox C. C. 330) 929 , Reg. V. (11 Mod. 79) 415, 416 Atkyns, State v. (1 Ala. 180) 489, 493 Atwell V. Slate (63 Ala. 61) 484, 485 Atwood, Commonwealth v. (11 Mass. 93) 460, 464, 467 Atzroth I'. State (10 Fla. 207) 164, 166 Auberry, State v. (7 Misso. 304) 642, 647 Auberton, Commonwealth v. (133 Mass. 404) 642, 659 Aucarola, United States v. (17 Blatch. 423) 569, 571, 572 Audley, Rex v. (3 Howell St. Tr. 401) 58, 904, 905, 914, 963 Aiimond, Reg, v. (2 U. C. Q. B, 166) 972 Austin, Reg. v.- (2 Cox C, C, 59) 1043 V. State (12 Misso. 393) 1039 V. State (42 Texas, 345) 1065 Avery, State v. (44 Vt. 629) 699, 728 Avila, People v. (43 Cal, 196) 916 Ayers, State r. (8 Baxter, 96) 520, 539 Aylett, Rex ;• (IT, R, 63) 872 Ayliffe, Rex v. (Trem, P. C. 2) 987 Babpock, People v. (7 Johns. 201) 272 Baccigalupo v. Commonwealth (33 Grat. 807) 80,206,556,558 Bachelder, United States v. (2 Gallis. 15) 838,841 Bacon, Com'th v. (135 Mass. 521) 977,979 . State V. (7 Vt. 219) V. Towne (4 Cush. 217) Badger, Reg. v. (6 Ellis & B. 137) Badgley, People i'. (16 Wend. 53) Bailey, Com'th v. (13 Allen, 541) , Reg. V. (4 Cox C. C. 390) — , Reg. V. (6 Cox C. C, 29) — , Reg, V. (7 Cox C, C. 179) — , Reg, V. (Dears. 244 ; 6 C. C. 241) — , Reg. V. (Law Rep. 1 C. C. 347 ; 12 Cox C. C. 129) 582 V. State (2 Texas, 202) 489, 506 420 93 415 477 437 285, 289, 489, 496 420 403 Cox 254, 261 BAE INDEX TO THE CASES CITED. BEA Section Bailey, State v. (1 Fost. N. H. 343) 775, 777 , State u. (11 Post. N.H. 521) 871 , State V. (34 Misso. 350) 871 Baii-d, Com'tlw. (4 S. &R. 141) 642 Bakeman, Commonwealth v. (105 Mass. 53) 1012, 1021, 1043 Baker, Com'th w. (10 Cush. 405) 642, 650 , People !'. (3 Abb. Pr. 42) 1065 , Beg. V. (Law Rep. 2 Q. B. 621) 750, 757 V. State (30 Ala. 521) 564 V. State (2 Har. & J. 5) 489, 502 V. State (57 Ind. 255) 680, 690 V. State (23 Missis. 243) 1038 0. State (31 Ohio State, 314) 420 , State V. (58 Ind. 417) 1012 , State V. (71 Misso. 475) 642 Bakewell, Rex v. (Russ. & Ry. 35) 403 Baldwin, Com'th v. (H Gray, 197) 460 , Rex V. (2 Leach, 928, note; Russ. & Ry. 241 ; 3 Camp. 265) 1068 , State V. { I Dev. & Bat. 195) 777, 833 , State f. (80 N. C. 390) 890, 895, 896 , State V. (39 Texas, 155) 680, 685 Ball, Reg. v. (6 Cox C. C. 360) 871 , Rex V. (6 Car. & P. 563) 853 Ballou, Commonwealth v. (124 Mass. 26) 776, 777, 782, 820 Balls, Reg. v. (Law Rep. 1 C. C. 328) 403 Baltimore and Ohio Railroad, State K. (15 W. Va. 362) 58,85,663,668 Baltimore, &c. Turnpike v. Garrett (50 Md. 68) 983 Bamfield, Rex v. (1 Moody, 416) 460, 470 Bangor, Rex v. (26 Howell St. Tr. 463) 929 Bangs, Com'th v. (9 Mass. 387) 138, 141 Bankhead, State v. (25 Misso. 558) 365 Banks, Reg. v. (12 Cox C. C. 393; 5 Eng. Rep. 471) 285,287 Bannon, Com'th v. (97 Mass. 214) 1038 Barber v. State (34 Ala. 213) 916 V. State (13 Ela. 675) 569 Barbone, Rex v. (Trem. P. C. 73) 325, 633, 634 Barbot, Rex v. (18 Howell St. Tr. 1230) 520 Bard v. State (55 Ga. 319) 206, 538 Barefoot, State v. (89 N. C. 565) 452 Barfoot, Reg. v. (13 East, 506) 247 Barker, Com'th v. (12 Cush. 186) 520 0. State (12 Texas, 273) 489,506 , State V. (2 Gill & J. 246) 672 , State V. (28 Ohio State, 583) 1041 Barnardiston, Bex u. (9 Howell St. Tr. 1333) 325, 619, 622 , Rex V. (Trem. P. C. 55) 621 Barnes, Com'th v. (13 Gray, 26) 777, 820 , Com'th V. (132 Mass. 242) 285, 286 V. State (19 Conn. 398 ; 20 Conn. 232) 642, 652 V. State (9 Texas Ap. 128) 933 Barnesciotta v. People (10 Hun, 137) 1037 Barnett v. State (.54 Ala. 579) 997 , State V. (3 Kan. 250) 933, 936 Section Barnett, State v. (83 N. C. 615) 881 Barney, Com'th v. (10 Cush. 480) 180 V. State (12 Sm. & M. 68) 1038 Barnoldswick, Reg. v. (4 Q. B. 499) 1046 Baroisse, Reg. v. (5 Cox C. C. 559) 420 Barran, Reg. «. (Jebb, 245) 582, 592 Barrett, Com'th v. (108 Mass. 302) 900, 902 , People w. (1 Johns. 66) 285,290 , Reg. V. (2 Car. & K. 343) 520, 530 , Reg. V. (Leigh & C. 263 ; 9 Cox C. C. 255) 777, 782 V. State (35 Ala. 406) 1043, 1044 , State V. (8 Iowa, 536) 460, 466 '■, State V. (42 N. H. 466) 173, 174 Barring u. Commonwealth (2 Duv. 95) 777, 810, 816 Barrows v. People (11 111. 121) 1064 Barry, Reg. v. (4 Fost. & E. 389) 285, 290 Barth v. State (18 Conn. 432) 82, 642, 647 Bartholomew, lieg. u. (1 Car. & K. 366) 871 Bartilson, Commonwealth u. (4 Nor- ris. Pa. 482) 285, 291 Bartlett, State v. (55 Maine, 200) 54, 58, 87, 254, 582, 585, 586, 593 Bartley v. Richtmyer (4 Comst. 38) 294 Barton, Reg. y. (11 A. &E. 343) 1012, 1017 V. State (29 Ark. 68) 582 V. State (12 Neb. 260) 1038 Bass V. State (63 Ala. 108) 699, 716 V. State (29 Ark. 142) 890, 895 V. State (17 Ela. 685) 56 Bassett u. Spofford (11 N. H. 127) 93 Batchelder, State v. (5 N. H. 549) 442, 446, 857 Bateman, State v. (3 Ire. 474) 460 Bates, Reg. v. (3 Cox C. C. 201) 420 , State V. (10 Conn. 372) 148, 149 Bathurst, Rex v. (Say. 225) 442 Batre v. State (18 Ala. 119) 328 Batstone, Beg. v. (10 Cox C. C. 20) 180, 885 Batterson v. State (63 Ind. 531 ) 58, 904, 908 Battery, State v. (6 Baxter, 545) '560 Battle V. State (4 Texas Ap. 595) 206, 904, 910 Baugh, United States u. (4 Hughes, 501 ) 885 Baughman, State v. (20 Iowa, 497) 777, 820, 822 Baumer v. State (49 Ind. 544) 564 Baumon, State v. (52 Iowa, 68) 58, 460, 470, 1041 Baxter, Rex v. (Trem. P. C. 45) 621 , Rex V. (Trem. P. C. 196) 1012, 1026 , Rex V. (Trem. P. C. 265) 944, 945 Bayley, Reg. v. (Dears. & B. 121) 403 Bayly, Rex v. (Trem. P. C. 216) 569 Baynton, Reg. «. (14 Howell St. Tr. 597) 944 Beal, State v. (37 Ohio State, 108) 254 Beale, Commonwealth v. (5 Pick. 514) 173 Beall V. State (53 Ala. 460) 254 Beaman, Com'th v. (8 Gray, 497) 582 601 BEN INDEX TO THE CASES CITED, BLA Section Beamish, Commonwealth v. (31 Smith, Pa. 389) 460, 474, 475 Bean, Com'th v. (11 Cush. 414) 699, 727 , State V. (36 N. H. 122) 206, 216 Beans v. Emanuclli (36 Cal. 117) 93 Beard II. State (54 Ind. 413) 582,592 Beardmore, Rex v. (2 Bur. 792) 317 Bearse, Commonwealth v. (108 Mass. 487) 111,206,213,226 , Com'th V. (132 Mass, 542) Beasley v. People (89 111. 571) I). State (50 Ala. 149) Beasom, State v. (40 N. H. 367) Beatty v. Gilderbanks (15 Cox C- 138) Beaver, People v. (49 Ca'l. 57) Becall, Rex v. (1 Car. & P. 310) Bechtelheiiner v. State (54 Ind. 128) Beckman, State v. (57 N. H. 174) , 558 365, 372 520, 528 520, 543 838, 840 .C. 927 254 403 520, 528 1012, 1021 Beckwith v. People (26 111. 500) 206, 556, 558 Beckworth. State v. (68 Misso. 82) 254 Beechey, Rex v. (Riiss. & Ry. 319) 403 Begg, Rex v. (28 Howell St. Tr. 849) 987 BeggSK. State (55 Ala. 108) 881 Beekman, State u. (3 Dutcher, 124) 699, 717 Beery v. United States (2 Col. Ter. 186) 885 Beeton, Reg. v. (Temp. & M. 87 ; 2 Car. &K. 960) 916 Belding, Commonwealth v. (13 Met. 10) 83, 1012, 1015 Belk V. Broadbent (3 T. E. 183) 93 Bell V. State (5 Eng. 536) 333, 342 V. State (1 Swan, Tenn. 42) 633, 635 V. State (1 Texas Ap. 598) 933 , State V. (27 Md. 675) 206, 215 , State V. (5 Port. 365) 58, 1012, 1026 Bellville, Statew. (7Baxter,548) 1012, 1017 Bembridge, Rex v. (22 Howell St. Tr. 1; 3 Doug. 327) 680, 687 Ben V. State (22 Ala. 9) 206 V. State (9 Texas Ap. 107) 489, 506 Benedict v. State (12 Wis. 313) 56 , State V. (11 Vt. 236) 977 Benfield, Rex v. (2 Bur. 980) 633, 635 Benjamin, People v. (2 Parker C. C. 201) 1082 , Stater. (49 Vt. 101) 642,646 Benner, United States «. (5 Cranch C. C. 347) 777, 794 Bennett v. Allcott (2 T. R. 166) 294 , Com'th V. (108 Mass. 27) 777, 820 , Commonwealth v. (118 Mass. 443) 403, 404, 407 , People V. (5 Abb. Pr. 384) 642, 644 , People V. (37 N. Y. 117) 58 , Reg. V. (2 Den. C. C. 240 ; 3 Car. &K. 124; 5 CoxC. C. 207) 871 , State V. (4 Dev. & Bat. 43) 442, 452 — — , Un i ted States w. ( 1 2 Bl atch. 345 ) 864 , United States w. (16 Blatch. 338) 887 Benson v. State (1 Texas Ap. 6) 699 602 Section Benson, State v. (28 Minn. 424) 420, 433 Bent, Reg. v. ( 1 Cox C. C. 356 ; 1 Den. C. C. 157 ,■ 2 Car. & K. 179) 384, 387 Bentley, State v. (6 Lea, 205) 263, 266 Benwell, Rex v. (6 T. R. 75) 973 Berkley v. State (4 Texas Ap. 122) 1078 Bernard, Reg. u. (1 Fost. & ¥. 240) 116, 520, 538 Berrian v. State (2 Zab. 9) 1068 Berrisford v. State (66 Ga. 53) 460 Berritt, State u. (17 N. H. 268) 929 Berry v. State (67 Ind. 222) 642, 652 V. State (10 Texas Ap. 315) 973, 974 Berryman, State v. (8 Nev. 262) 582 Berthand, Rex v. (4 Went. PI. 55) 426 Bess, State v. (20 Misso. 419) 148, 158 Best, Reg. <,. (2 Moody, 124) 127 , Reg. V. (6 Mod. 137; 2 Ld. Eaym. 1167) 285, 300 Bethel, Rex v. (8 Howell St. Tr. 747) 206 Bethune v. State (48 Ga. 505) 254 Betsall, State r. (11 W. Va. 703) 254 Betsworth, Rex u. (Trem. P. C. 93) 274 Bettesworth, Rex v. (Trem. P. C. 221) 919 Bettilini, United States v. (1 Woods, 654) 972 Betts, Reg. v. (Bell C. C. 90 ; 8 Cox C. C. 140) 582 , Reg. V. (16 Q. B. 1022) 1012, 1015 Beverlin, State v. (30 Kan. 611) 558 Bevington v. State (2 Ohio State, 160) 460, 467 Bibb, State v. (68 Misso. 286) 460, 471 Bickford, United States v. (4 Blatch. 337) 866 Bidwell, Reg. v. ( 1 Den. C. C. 222 ; 2 Car. & K. 564 ; 2 Cox C. C. 298) 323 Bieberi;. State (45 Ga. 569) 118, 916 Bierman, Com'th w. (13Bush,345) 672,677 Biers, Rex y. (1 A. & E. 327) 285 Bigaouette v. Paulet (134 Mass. 123) 294 Bigby V. State (44 Ga. 344) 148 Biggleston, Rex v. (Trem. P. C. 10) 520 Bilbro V. State (7 Humph. 534) 642, 650 Billingham, Rex v. (2 Car. & P. 234) 899 Billingsley, State v. (43 Texas. 93) 222, 925 Binns, Hex v. (26 Howell St. Tr. 595) 633, 940 V. State (38 Ind. 277) 1065 Birchfield, Ex parte (52 Ala. 377) 1010 Bird V. Randall (3 Bur. 1345) 303 , Reg. V. (5 Cox C. C. 1, 11 ; 2 Den. C. C. 94) 206, 214, 520, 1043, 1059 , Reg. D. (12 Cox C. C. 257; 4 Eng. Kep. 533) 582 , Rex V. (25 Howell St. Tr. 750) 987 Bishop, State v. (7 Conn. 181) 983 , State V. (51 Vt 287) 254 Biswell, Reg. v. (2 Cox C. C. 279) 944, 945 Bittick V. State (40 Texas, 117) 206, 558 Bittings v. State (56 Ind. 101) 460 Bixby V. Dunlap (56 N. H. 456) 303 Black V. State (36 Ga. 447) 111, 582, 614 V. State (57 Ind. 109) 904, 905 BON INDEX TO THE CASES CITED. BOY Section Black V. State (2 Md. 376) &99, 720 Blapkburn.Cora'th 11.(^^.4)285, 312, 942 1 V. State (23 Ohio State, 146) 520, 533, 540 — - V. State (39 Texas, 153) 206 Blackson,- Rex v. (8 Car. & P. 43) U6, 118 Blackwell v. State (36 Ark. 178) 642, 651 , State V. (3 Ind. 529) 699, 726 , State w. (lOS. C. 35) 318 Blagge t). Ilsley (127 Mass. 191) 294 Blair, Com'th u. (126 Mass. 40) 138, 142 V. Forehand (100 Mass. 136) 177 , State V. (41 Texas, 30) 489 Blaisdell, Stateu. (49N. H. 81) 254 Blake, Commonwealth v, (12 Allen, 188) _ 642, 777, 820 V. Lanyon (6 T. R. 221) — -, Reg. V. (6 Q. B. 126) , Rex V. (Trem. P. C. 41) , Rex V. (Trem. P. C. 194) , State V. (39 Maine, 322) 303 285, 312 942 890, 893 206, 904, 906, 910 520 (105 642, 646 420 695 Blan, State v. (69 Misso. 317) Blanchard, Commonwealth ! Mass. 173) , People V. (90 N. Y. 314) Bland u. Com'th (10 Bush, 622) Blandy, Rex u. (18 Howell St. Tr. 1118) 520, 533 Blanev, Commonwealth «. (133 Mass. 571) 206, 742, 745 Blann v. State (39 Ala. 353) 1012, 1023 Blason v. Bruno (33 Barb. 520) 482 Blauvelt, State v. (9 Vroom, 306) 420 Blevins's Case (5 Grat. 703) 582 Blizard v. Kelly (2 B. & C. 283) 93 Block V. State (65 Ala. 493) 642 , United States v. (15 Bankr. Reg. 32.5; 4 Saw. 211) 231 Blodgett, Com'th v. (12 Met. 56) 569, 570 Bloedow, State v. (45 Wis. 279) 742 Bloom V. State (57 Missis. 752) 513 Bloomer v. State (48 Md. 521) 285, 291 Bloomfield, Reg. v. (Car. & M. 537) 420 Bloomhuff V. State (8 Blackf. 205) 777, 794 Blunt, Reg. v. (1 Howell St. Tr. 1409) 987 Blythe, State v. (1 Dev. & Bat. 199) 642 Boardman, State v. (64 Maine, 523) 777, 782 Bobbitt, State u. (70 N. C. 81) 871 Bode V. State (7 Gill, 326) 642, 653 Bogardus, State v. (4 Misso. Ap. 215) 362 Bogart, People v. (3 Parker C. C. 143 ; 3 Abb. Pr. 193) 680, 688, 1082 Bohannon, State v. (21 Misso. 490) 206 Bohl V. State (3 Texas Ap. 683) 642, 653 Boies, State v. (34 Maine, 235) 929 Boland, Ex parte (U Texas Ap. 159) 136 Boling, State v. (2 Humph. 414) 82 Bolkom, Com'th v. (3 Pick. 281 ) 489, 503 Bolton V. State (5 Coldw. 650) 582 Bond, Commonwealth v. (1 Gray, 564) 337 , Rex V. (27 Howell St. Tr. 523) 987 Bonker v. People (37 Mich. 4) 734 Bonnell v. State (64 Ind. 498) 420 Section Bonner v. State (55 Ala. 242) 582, 592 Bonnet, Rex v.{\5 Howell St. Tr. 1231 ) 879 Bonney, State v. (34 Maine, 223) 460, 467 Bontien, Rex v. (Russ. & By. 260) 460, 472 Boogher, State v. (3 Misso. Ap. 4,42), 619 Book, State v. (41 Iowa, 550) 58, 489, 503 Boon, Commonwealth v. (2 Gray, 74) 374 , State V. (4 Jones, N. C. 463) 13, 46, 272, 419, 420, 422 Booth V. Commonwealth (7 Met. 285) 148 , Com'th V. (2 Va. Cas. 394) 206 , Rex V. (Russ. & Ry. 7) 337 Bootie, Rex v. (2 Bur. 864) 890, 895 Boott, Commonwealth u. (Thacher Grim. Cas. 390) 378 Bork i,. People (91 N. Y. 5) 403, 409 Borum v. State (66 Ala. 468) 2.54 Boss, State v. (74 Ind. 80) 263 Bostick V. State (34 Ala. 266) 460, 461 Bostock V. State (61 Ga. 635) 520 Boston Glass Manuf. u. Binney (4 Pick. 425) 303 Boston and Worcester Railroad, Com- monwealth V. (11 Cusli. 512) 520, 531 Bosworth, Commonwealth v. (113 Mass. 200) 1043 , State V. (13 Vt. 402) 1012, 1016 Botfield, Reg. v. (Car. & M. 151) 1012 Boucher, Rex v. (Trem. P. C. 150) 66, 874, 1068 Boulo V. State (49 Ala. 22) 1010 Boult, Reg. V. (2 Car. & K. 604) 460, 475 Boulton, Reg. v. (1 Den. C. C. 508 ; 2 Car. & K. 917 ; 3 CoxC. C. 576) 420,427 Bourne, Rex v. (4 Went. PI. 42) 403 Bowen, Com'th v. (13 Mass. 356) 952, 953 , Reg. u. (3 Cox C. C. 483) 420 , Reg. V. (1 Den. C. C. 22 ; 1 Car. & K. W' ) 923 , Reg. V. (13 Q. B. 790) 420 , State V. (16 Kan. 475) 80, 520, 544 Bower, Rex v. (Cowp. 323) 272 Bowler, Reg. v. (Car. & M. 559) 384, 388 V. State (41 Missis. 570) 420 Bowlus, State v. (3 Heisk. 29) 871 Bowman, Com'th v. (3 Barr, 202) 1012 V. Buss (6 Cow. 234) 93 Boyall, Rex v. (2 Bur. 832) 323 Boyd V. State (4 Baxter, 319) 696 V. State (4 Minn. 321 ) 556 Boyden, United States v. (1 Lowell, 266) 973 Boyer, Commonwealth v. (2 Wheeler Crim. Cas. 140) 285 Boye.s, Reg. d. (1 B. & S. 311) 247, 249 Boyington, State v. (56 Maine, 512) 384, 385 Boykin v. State (34 Ark. 443) 582, 592 Boyle, Beg. v. (7 Cox C. C. 428) 173 State V. (25 Md. 509) 1086 Boynes, Reg. v. (1 Car. & K. 65) 871, 877 Boynton, Commonwealth v. (12 Cush. 499) 763, 765, 767 , Com'th V. (2 Mass. 77) 460, 466 , Com'th V. (116 Mass. 343) 138, 142 603 BEI INDEX TO THE CASES CITED. BRO Section Boys, Rex v. (Say. 143) 323 Brackett v. State (2 Tyler, 152) 1069, 1082 Braddee v. Com'th (6 Watts, 530) 460 Bradden, Rex v. (Trem. P. C. 35) 941 Braddon, Rex u. (9 Howell St. Tr. 1127) 968 Bradford, Com'th v. (9 Met. 268) 384, 386 , Commonwealtli v. (126 Mass. 42) 180, 185, 186 , Reg. V. (Bell, 268 ; 8 Cox C. C. 309) I 1012, 1021 , State V. (33 La. An. 921) 206, 558 Bradlaugh, Reg. v. (15 Cox C. C. 217) 242, 243 , Reg. V. (2 Q. B. D. 569 ; 3 Q. B. D. 607) 619, 626 Bradley, Com'tli v. (2 Gush. 553) 881, 883 , Com'th u. (16 Gray, 241) 206 V. State (32 Ark. 704) 58, 87, 254 u. State (10 Sm. &M. 618) 553 , Stater. (48 Conn. 535) 285 , State V. (68 Misso. 140) 420 , State V. (34 Texas, 95) 206, 838, 839 Bradshaw, Rex v. (7 Car. & P. 233) 173, 174 Brady, Reg. v. (Jebb, 257) 115, 558 , Rex v. (1 B. & P. 187 ; 2 Leach, 803) 206, 838, 839 , Rex V. (1 Leach, 327) 871, 876 Brahany, Com'th v. (123 Mass. 245) 177 Branchport, &c. Plankroad, People v. (5 Parker C. C. 604) 1012, 1017 Brand v. United States (18 Blatch. 384) Brandon, State v. (28 Ark. 410) 642, Brandreth, Rex v. (32 Howell St. Tr. 755) Brandt v. Commonwealth (13 Non-is, Pa. 290) 68, 116, 520 , State V. (41 Iowa, 593) 403, 409 Brannon, Reg. v. (14 Cox C. C. 394) 113 , State V. (50 Iowa, 372) 916 Brant, State w. (14 Iowa, 180) 699, 727 Brantley v. State (13 Sm. & M. 468) 206, 558 Braun, Reg. v. (9 Cox C. C. 284) 237 Bray, Reg. v. (9 Cox C. C. 218) 871 , State V. (1 Misso. 180) 206 Bravnell, Reg. v. (4 Cox C. C. 402) 977, 979 Brazier v. State (44 Ala. 387) 1068 Brazleton v. State (66 Ala. 96) 699, 723 Breden, Reg. v. (16 U. C. Q. B. 487) 520, 539 Brenan, Reg. v. (6 Cox C. C. 381) 173 Bressant, Com'th v. (126 Mass. 246) 1043 Brewer, Rex v. (6 Car. & P. 363) 460, 468 V. State (59 Ala. 101) 881 r. State (5 Texas Ap. 248) 699, 723 , State V. (33 Ark. 176) 222, 925 , State V. (8 Misso. 373) 680, 691 Brewster, United States v. (7 Pet. 164) 460, 466 Bridges v. State (37 Ark. 224) 58, 85, 663, 665 , State V. (24 Misso. 353) 395 604 887 647 987 ,543 Section Bridgman, State v. (49 Vt. 202) 148, 149 Briellat, Rex v. (22 Howell St. Tr. 909) 633, 940 Brien v. Commonwealth (5 Met. 508) 1090 Briggs, Com'th w. ( 1 1 Met. 573 ) 642, 655 , Rexw. (1 Moody, 318 ; 1 Lewin, 61) 206,696,742,747 , State V. (1 Aikens, 226) 699, 705 Briley, State v. (8 Port. 472) 742, 745 Brilliant, People v. (.58 Cal. 214) 871 Brinster v. State (12 Texas Ap. 612) 23, 904 Brisby, Reg. v. (2 Car. & K. 962 ; 1 Den. C. C. 416) 323 Britain v. State (3 Humph. 203) 148, 777, 802 Britt V. State (9 Humph. 31) 420 Brocker, State v. (32 Texas, 611) 352, 699, 717 Brockway v. State (36 Ark. 629) 489, 503 Brodribb, Rex v. (6 Car. & P. 571) 853 Broil V. State (45 Md. 356) 437 Bromley, State v. (25 Conn. 6) 376 Brooks, Commonwealth v. (9 Gray, 299) , Rex V. (Trem. P. C. 151 ) , Rex V. (Trem. P. C. 175) , Rex V. (Trem. P. C. 195) 699, 714 53, 876 93 90, 828, 831, 850 403, 409 , State V. (42 Texas, 62) , United States v. (4 Cranch C. C. 427) 364, 365, 367 Broome v. Reg. (12 Q. B. 834) 54 , Rex V. (4 Went. PI. 21) 192 Brotherton, Rex v. (1 Stra. 702; 2 Sess. Cas. 224) 662 Broughton, Rex v. (Trem. P. C. Ill) 415 Brower, People v. (4 Paige, 405) 318 Brown f. Com'th (8 Mass. 59) 460,467 V. Com'th (2 Va. Cas. 516) , Com'th V. (14 Gray, 419) , Com'th B. (15 Gray, 189) , Com'th V. (121 Mass. 69) , Com'th i). (12 Met. 522) , Com'th V. (13 Met. 365) V. People (86 111. 239) V. People (29 Mich. 232) , People V. (27 Cal. 500) , Reg. V. (Car. & M. 314) , Reg. V. (2 Car. & K. 504 ; 3 Cox C. C. 127 ; 1 Den. C. C. 291) 420, 738, 378 21, 138 484, 485 138, 142 642, 650 777, 828, 831 460, 475 582 582 847 , Reg. V. (2 Cox C. C. 348) , Reg. V. (7 Cox C. C. 442) , Reg. V. (10 Q. B. D. 381) 922 420 285, 291 109 ■ V. State (6 Baxter, 422) 206, 904, 910 V. State (5 Eng. 607) 489 V. State (40 Ga. 689) 489, 503, 507 V. State (48 Ind. 38) 642 V. State (76 Ind. 85) 699 V. State (2 Lea, 158) 1010 V. State (26 Ohio State, 176) 699, 715 V. State (2 Texas Ap. 115) 46, 285, 288 BUN INDEX TO THE CASES CITED. BUT Section Brown v. State (7 Texas Ap. 619) 254 V. State (13 Texas Ap. 358) 247 , State V. (16 Conn. 54) 1012 , State V. (69 Ind. 95) 929 , State I). (8 Jones, N. C. 443) 582, 602 , State V. (12 Minn. 490) 415 , State V. (7 Oregon, 186) 520 , State u. (1 R. I. 528) 460 Browne, Rex v. ( Jebb, 21 ) 944 Browning, Reg. v. (3 Cox C. C. 437) 871, 877 V. State (1 Texas Ap. 96) 206, 558 -r— V. State (2 Texas Ap. 47) 206,216 Bruce, State v. (5 Oregon, 68) 384, 386 Bruckheimer, Com'th v. (14 Gray, 29) 509 Bruner v. State (58 Ind. 159) 520 Brunskill, Reg. y. (8 U. C. Q. B. 546) 973 Brunson, State v. (2 Bailey, 149) 148, 156 Bruton v. State (21 Texas, 337) 1065 Bryan v. State (45 Ala. 86) 642, 652 V. State (44 Ga. 328) 577 , State u. (89 N. C. 531) 699,727 Bryant v. State (72 Ind. 400) 205, 1043 , State K. (17 N. H. 323) 460, 464, 474 Bryden, Com'th v. (9 Met. 137) 642 Bryson, State v. (82 N. C. 576) 365 Bubb, Reg. v. (4 Cox C. 0. 455) 520, 525 Buchanan, People v. (1 Idaho Ter. 681) 777,782 , Reg. V. (2 Cox C. C. 36) 997, 1001 , Reg. V. (8 Q. B. 883) 848, 997, 1001 V. State (55 Ala. 154) 148 , State V. (5 Har. & J. 317) 285, 291 Buck, Com'th v. (12 Met. 524) 642 Buckingham, Commonwealth u. (2 Wheeler Crim. Cas. 181) 619, 627 Buckland v. Commonwealth (8 Leigh, 732) 75, 460, 466 Buckles V. Ellers (72 Ind. 220) 294 Buckley v. State (2 Greene, Iowa, 162) 460, 466 Buckman, State v. (8 N. H. 203) 763, 766 Buckner, State v. (52 Ind. 278) 642, 649 Buckwell, Reg. v. (9 Cox C. C. 333) 235 Budge V. Parsons (3 B. & S. 382) 361 Buffington, State v. (20 Kan. 599) 944, 951 Bull, Commonwealth v. (13 Bush, 656) 672, 677 , Reg. V. (13 Cox 0. C. 608) 419, 420 V. Tilt (1 B. & P. 198) 1045 Bullion, State v. (42 Texas, 77) 489, 503 Bulloch V. State (10 Ga. 46) 403 Bullock, Reg. v. (Dears. 653) 285, 291 , Reg. V. (Law Rep. 1 C. C. 115) 352 V. State (12 Texas Ap. 42) 180 Bulman, Commonwealths. (USMass. 456) 777, 794, 795 Bulmer, Reg. v. (Leigh & C. 476 ; 9 Cox C. C. 492) 420 Bunn, Reg. v. (12 Cox C. C. 316) 285, 308 Bunnell v. Greathead (49 Barb. 106) 294 , State V. (81 Ind. 315) 642 Buntin v. State (68 Ind. 38) 933, 937 Banyan, Reg. v. (1 Cox C. C. 74) 777, 802 Section Burchard v. State (2 Oregon, 78) 642, 653 Burd V. State (39 Texas, 509) 420, 430 Burdiiie v. State (25 Ala. 60) 489, 493 Burgess v. Coney (Trem. P. C. 315) 1068 , People V. (35 Cal. 115) 254 , Reg. V. (Leigh & C. 258 ; 9 Cox C. C. 247) 111,954 V. State (44 Ala. 190) 699, 716 Burgon, Reg. v. (Dears. & B. 11 ) 420 Burgson, State v. (53 Iowa, 318) 460 Burke's Case (1 Lewin, 318) 460,464 Burke, Com'th v. (121 Mass. 39) 642, 649 y. People (4 Hun, 481) 742 , People V. (34 Cal. 661) 904, 905 , Reg. V. (10 Cox C. C. 519) 1065 V. State (34 Ohio State, 79) 80 u. State (5 Texas Ap. 74) 254 Burks, Rex v. (7 T. R. 4) 619 Burnby w. Bollett (16 M. &W. 644) 765 Burnel, Rex v. (2 Leach, 588) 582, 588 Burner v. Commonwealth (13 Grat. 778) 997, 1001 Burnett, Rex v. (4 M. & S. 272) 777, 810, 814 Burnham v. Morrissey (14 Gray, 226) 321 Burns v. Com'th (3 Met. Ky. 13) 215, 695 11. People (5 Lans. 189) 384, 388, 871, 876 , State V. (80 N. C. 376) 484, 485 , State V. (20 N. H. 550) 642 Burnsides, Reg. v. (Bell C. C. 282 ; 8 Cox C. C. 370) 420 Burrell, Reg. v. (lO Cox C. C. 462) 1012 , Reg. V. (Leigh & C. 354) 944 , State V. (86 Ind. 313) 633, 635 Burridge, Reg. v. (2 Moody & R. 296) 977 Burroughs, People v. (1 Parker C. C. 211) 871,875 V. State (17 Fla. 643) 520 , State V. (2 Halst. 426) 699, 724 Burrow v. State (7 Eng. 65) 420 Burrows, State v. (11 Ire. 477) 272 Burt, State v. (25 Vt. 373) 838, 843 Burton, Reg. v. (13 Cox C. C. 71 ; 13 Eng. Rep. 418) 111 , Rex V. (1 Moody, 237) 403 , Rex V. (4 Went. PI. 32) 472 , State V. (3 Ind. 93) 415, 416 Bush, People v. (4 Hill, N. Y. 133) 106, 180, 194, 195 V. State (5 Texas Ap. 64) 364, 365, 371 Butcher, Reg. v. (Bell C. C. 6 ; 8 Cox C. C. 77) 420 Butland, Com'th v. (119 Mass. 317) 871 Butler V. People (4 Denio, 68) 254, 255, 257 , People w. (3 Cow. 347) 94,582 , People V. (3 Parker C. C. 377) 520, 1082 , Rex V. (6 Car. & P. 368) 111, 206, 224 225 V. State (.34 Ark. 480) 206) 558 V. State (17 Ind. 450) 1012, 1023 , States. (Conference, 331) 442 605 CAM INDEX TO THE CASES CITED. CAB Section Butler, State v. (26 Minn. 90) 403 , United States v. (I Hughes, 457) 394 Butman, State v. (42 N. H. 490) 553 Butter, Rex v. (13 Howell St. Tr. 1249) 460 Buttcrfield, Reg. v. (2 Moody & B. 522; .1 Cox C. C.39) 117 , State V. (75 Misso. 297) 254 Butterick, Com'th v. (100 Mass. 1) 403 , Commonwealth v. (100 Mass. 12) 460 Butterworth, Reg. w. (12 Cox C. C. 132 ; 2 Eng. Rep. 195) 582 Button, Reg. v. (8 Car. & P. 660) 206, 213 , Reg. V. (3 Cox C. C. 229 ; 11 Q. B. 929) 285 Buxton, Com'th v. (10 Gray, 9) 777, 820 , State V. (2 Swan, Tenn. 57) 680 Bybee, State «. ( 1 7 Kan. 462) 206, 212, 558, 1078 Byford, Rex v. (Russ. & Ry. 521 ) 254, 255 Bykerdike, Rex v. (1 Moody & R. 179) 285, 308 Byrd v. State (1 How. Missis. 247) 1090 Byrne, Reg. o. (4 Cox C. C. 248) 96 , Rex V. (27 Howell St. Tr. 455) 987 , Rex V. (28 Howell St. Tr. 806) 987 , State V. (45 Conn. 273) 180, 185 Byrnes, Com'th u. (126 Mass. 248) 642, 644 Byron, Rex v. (19 Howell St. Tr. 1177) 520 , State V. (20 Misso. 210) 148, 158 C. D., State v. (N. Chip. 284) i069 C. T., Rex V. (Trera. P. C. 144) 875 Cabannes, People v. (20 Cal. 525) 699 Cable V. State (8 Blackf. 531) 777, 817, 820 Cadle, State w. (19 Ark. 613) 575 Cadwell v. State (17 Conn. 467) 777, 782, 784 Caesar, People v. (1 Parker C. C. 645) 94, 582 , State V. (9 Ire. 391 ) 520 Cagle, State v. (2 Humph. 414) 148, 156 Cain V. State (18 Texas, 387) 575 , State V. (8 W. Va. 720) 642 , State u. (9 W. Va. 559) 642, 652 Caister, Reg. v. (30 U. C. Q. B. 247) 984 Caldwell v. Richards (2 Bibb, 331) 93 V. State (49 Ala. 34) 58, 699, 702, 716 V. State (63 Ind. 283) 395, 396 t). State (2 Texas Ap. 53) 169 Calef, Com'th v. (10 Mass. 153) 148, 158 Call, Commonwealth v. (21 Pick. 515) 420 , State V. (48 N. H. 126) 419, 420, 424 Callahan v. State (63 Ind. 198) 944, 949 Calligan, State v. (17 N. H. 253) 206, 553, 558 Callingwood, Reg. v. (2 Ld. Raym. 1116 ; 6 Mod. 288) 106, 582, 611 Calvert v. State (8 Texas Ap. 538) 66 Camden Turnpike v. Fowler (4 Zab. 205) 983, 984 Cameron, State v. (3 Heisk. 78) 403 606 Section Cammeyer, State v. (8 La. An. 312) 1078 Campw. Bennett (16 Wend. 48) 1087 V. State (25 Ga. 689) _ 520 Campbell v. Commonwealth (3 Norris, Pa. 187) 58, 520, 543 u. Com'th (2 Rob. Va. 791) 699,723 V. Commonwealth (9 Smith, Pa. 266) 48, 365, 368 , Com'th w. (116 Mass. 32) 777,820 V. Cooper (34 N. H. 49) 303 V. People (8 Wend. 636) 871, 876 V. Reg. (1 Cox C. C. 269 ; 11 Q. B. 799 ; 2 Cox C. C. 463) 582, 588, 1068, 1090 , Reg. V. (18 U. C. Q. B. 413) 420 , Rex V. (2 Leach, 564) 582, 588 , Rex V. (Trem. P. C. 34) 944 V. State (55 Ala. 89) 489, 503 , State V. (12 R. L 147) 642, 644 , State V. (44 Wis. 529) 403 Campion, Reg. v. (28 U. C. Q. B. 259) 933 Canada, State v. (48 Iowa, 448) 1064 Canney, State ;;. (19 N. H. 135) 254 Canning, Rex t/. (19 Howell St. Tr. 283) 871 Canter w. People (1 Abb. Ap. 305/ 1043 V. State (7 Lea, 349) 420 Canterbury, State d. (8 Post. N. H. 195) 1012, 1023 Cantor i>. People (5 ParkerC. C. 217) 43, 58, 94, 460, 475 Cantril, U. S, v. (4 Cranch, 167) 460, 466 Canwell, Reg «. (11 Cox C. C. 263) 206, 214 Cape V. Scott (Law Rep. 9 Q. B. 269) 172 Capp, Com'th v. (12 Wright, Pa. 531 1084 Carabin, State v. (33 Texas, 697) 176 Carder t). State (17 Ind. 307) 205 Cardoza, State «. (11 S. C. 195) 285 Cardoze, Commonwealth v. (119 Mass. 210) 777, 782, 787 Carel, Com'th v. (105 Mass. 582) 871, 874 Carew v. Rutherford (106 Mass. 1) 303 Carey, Com'th K. (2 Pick. 47) 460,466 , People V. (Sheldon, 573) 777, 794 Cargen v. People (39 Mich. 549) 520 Cargo of Sugar, United States v. (3 Saw. 46) 972 Garland, State v. (3 Dev. 114) 871 Carlile, Reg. ,>. (1 Cox C. C. 229) 46, 620, 631 , Rex V. (6 Car. & P. 636) 629 Carlisle, Reg. v. (Dears. 337; 6 Cox C. C. 366) 285, 291 , Respublica v. (1 Dall. 35) 987 Carlton v. Com'th (5 Met. 532) 254 Carpenger, People v. (5 Parker C. C. 228) 699, 725, 726 Carpenter, Com'th v. (108 Mass. 15) 979 w. People (8 Barb. 603) 944 , People V. (1 Mich. 273) 1012 V. State (4 How. Missis. 163) 56 , State V. (62 Misso. 594) 663, 668 , State V. (20 Vt. 9) 325, 328 CHA INDEX TO THE CASES CITED. CHR Section Carpenter, State v. (54 Vt. 551) 838, 840 Carper v. State (27 Ohio State, 572) 489 Carr v. State (34 Ark. 448) 263 V. State (50 Ind. 178) 777, 805 w. State (5 Texas Ap. 153) 642, 656 , State u. (43 Iowa, 418) 933 , State V. (25 La. An, 407) 460, 475 , State V. (5 N. H. 367) 460, 466 , State V. (6 Oregon, 133) 489 Carrico v. State (11 Misso. 579) 206, 215 Carrillo, People v. (54 Cal, 63) 403 Carroll, People v. (3 Parker C. C. 73) 1082 , Rex V. (1 Leach, 55) 742, 743 V. State (58 Ala. 396) 992 Carruthers, Reg. v. (1 Cox C. C. 138) 977 Carson, Com'th u. (6 Philad. 381) 489 Carter, Reg. v. (1 Cox C. C. 170) 460, 470 , Reg. «. (10 Cox C. C. 645) 420 V. State (55 Ala. 181 ) 384 V. State (53 Ga. 326) 582, 610 V. State (5 Texas Ap. 458) 520 , State V. (Conference, 210) 520 V. Territory (1 New Mex. 317) 1038 , U. S. V. (4 Cranch C. C. 732) 1034 Cartwright's Case (114 Mass. 230) 317 Carver v. State (69 Ind. 61) 85, 663, 668 , State y. (49 Maine, 588) 116,254, 256, 582, 585, 586 , State V. (12 R. I. 285) 642 Cases of Books, United States v. (2 Bond, 271) 972 Casey, People v. (72 N. Y. 393) 80, 206, 214, 217 V. State (37 Ark. 67) 520 Caslin, Rex v. (Trem. P. C. 219) 919, 1046 Casper v. State (47 Wis. 535) 285 Cassady, State v. (12 Kan. 550) 60, 254 Cassel, State v. (2 Har. & G. 407) 582, 602 Casteel, State v. (53 Misso. 124) 582 Castle, Reg. v. (Dears. & B. 363; 7 Cox C. C. 375) 849 Castleberry i\ State (62 Ga. 442) 699, 730 Castles, Commonwealth v. (9 Gray, 123) 460, 464, 472 Castleton, People v. (44 How. Pr. 238) 680, 687 Castro, Reg. v. (Law Rep. 9 Q. B. 219) 318 Cathcart v. Robinson (5 Pet. 264) 481 Catholic Protectory, People v. (61 How. Pr. 445) 1010 Catlin, Commonwealth v. (1 Mass. 8) 148 Cavanagh, People v. (2 Parker C. C. 650) 1082 Cawood, State v. (2 Stew. 360) 285, 300 Cellier, Rex v. (7 Howell St. Tr. 1043) 987 Central Bank v. Veasey (14 Ark. 671) 93 Central Bridge, Commonwealths. (12 Cash. 242) 1012, 1023 Cesure v. State (1 Texas Ap. 19) 180 Chadbourn, State v. (80 N. C. 479) 997, 998 Chaffee, United States v. (4 Ben. 330) 864 , United States v. (2 Bond, 110) 973 Chalkley, Rex v. (Russ. & Ry. 258) 699, 717 Section Chalmers, Rex v. (1 Moody, 352) 460, 472 Chamberlain, State v. (6 Nev. 257) Chamberlin, State v. (30 Vt. 559) Champion, Rex v. (Trem. P. C. 128) 520 871 460, 463 564 420 420 Chancellor v. State (47 Missis. 278) Chandler, People v. (1 Buf. 560) , People V. (4 Parker C. C. 231) , Reg. V. (Dears. 453 ; 6 Cox C. C. 519) 46, 750, 751 , State V. (2 Harring.Del. 553) 44, 241, 243 , State V. (24 Misso. 371) 206, 212, 555, 558 Chapin, State v. (17 Ark. 561) 1046 Chapman v. Com'th (5 Whart. 427) 180 , Commonwealth «. (11 Cush. 422) 520 , V. People (39 Mich. 357) 520 , Reg. V. (1 Den. C. C. 432; 2 Car. & K. 846 ; 3 Cox C. C. 467) 871, 876 , State V. (68 Maine, 477) 482 , State V. (6 NcT. 320) 116, 933 Chappie, Rex v. (Russ. & Ry. 77) 699, Charles v. People (1 Comst. 180) V. State (6 Eng. 389) Charlesworth, Reg. v. (1 B. & S. 460; 9 Cox C. C. 40) Charretie, Reg. v. (3 Cox C. C. 499) , Reg. tf. (13 Q. B. 447) Chartrand, State v. (36 Iowa, 691 713 679 205 1043 394 247 777,782, 784 Chase, Com'th v. (125 Mass. 202) 763, 767 , Commonwealth v. (127 Mass. 7) 985 V. People (2 Col. Ter. 509) 489, 777, 805 , People w. (16 Barb. 495) 285 , V. State (50 Wis. 510) 520 Cheaney v. State (36 Ark. 74) 944, 950 Cheatham v. State (59 Ala. 40) 180, 1041 Cheek v. State (38 Ala. 227) 750 Cheezem v. State (2 Ind. 149) 642 Cherry, State v. (3 Murph. 7) 520 Chetwynd, Rex w. (18 Howell St. Tr. 290) 520 Chick V. State (7 Humph. 161) 742, 745 Chidester v. State (25 Ohio State, 433) 460, 477 Child, Commonwealth v. (13 Pick. 198) 619 , Reg. V. (5 Cox C. C. 197) 871 , Reg. V. (Law Rep. 1 C. C. 307 ; 12 Cox C. C. 64) 180, 187, 699 Childs V. State (55 Ala. 25) 1064 V. State (15 Ark. 204) 924, 925 Chiles V. State (1 Texas Ap. 27) 489, 506 Chiovaro, Commonwealth o. (129 Mass. 489) 113,116,520,539 Chisholm, Commonwealth v. (103 Mass. 213) 642, 644 Chittenden v. Catlin (2 D. Chip. 22) 93 V. State (41 Wis. 285) 619 Chrisp, State v. (85 N. C. 528) 243 Christey, Reg. v. (1 Cox C. C. 239) 975 607 CLI INDEX TO THE CASES CITED. COL Section Christian v. Commonwealth (23 Grat. 954) 111,206,904,910 , Reg. 0. (Car. & M. 388) 871 Christmiin. State v. (67 Ind. 328) 642, 654 Christopher, Keg. K. (Bell, 27; 8 Cox C. C. 91) 96,582 Chumley, State v. (67 Misso. 41) 206, 558 Church, Commonwealth u. (1 Barr, 105) 1012, 1026 Churchill, Com'th v. (2 Met. 118) 642 , State V. (25 Maine, 306) 642, 655 Claflin, U. S. v. (13 Blatch. 178) 972 Clapp, Com'th V. (5 Gray, 97) 642, 655 , Com'th V. (5 Pick. 41) 672, 679 Clare, Rex v. (28 Howell St. Tr. 887) 987 Clarissa, State v. (11 Ala. 57) 111, 206, 213 226 Clark V. Com'th (5 Casey, Pa. 129) 1034 , Commonwealth v. (2 Ashm. 105) 278 w. People (2 Lans. 329) 420 , People u. (10 Mich. 310) 285, 290 , Reg. V. (Dears. 198 ; 6 Cox C. C. 210 ; 3 Car. & K. 367) 96, 582 , Reg. V. (Law Rep. 1 C. C. 54 ; 10 Cox C. C. 338) 1012, 1021 , Eex V. (I Brod. & B. 473) 520, 533, , Kex V. (Russ. & Ry. 181) V. State (19 Ala. 552) V. State (46 Ala. 317) , State V. (3 Ind. 451) , State V. (8 Ire. 226) , State V. (54 N. H. 456) , State V. (23 Vt. 293) , State V. (42 Vt. 629) 87 , U. S. V. (4 Bankr. Reg. 59) , U. S. V. (Crabbe, 584) Clarke, Reg. v. (1 Car. & K. 421) , Rex V. (Cowp. 35) , Rex V. (2 Leach, 1036) , Rex V. (4 Went. PI. 47 , Rex V. (4 Went. PI. 50 V. State (8 Ohio State, 630 , State V. (46 Iowa, 155) Clary v. State (33 Ark. 561) , St.ate V. (64 Maine, 369) Clay V. People (86 111. 147) V. State (43 Ala. 350) V. State (3 Texas Ap. 499) Clayton v. State (60 Md. 272) 777, 828, 831 , State V. (32 Ark. 185) 642, 997 , United States K. (2 Dil. 219) 391 Cleaveland v. State (20 Ind. 444) 642 Clegg, Reg. V. (3 Cox C. C. 295) 699, 719 Clement v. Milner (3 Esp. 95) 172 , Reg. V. (26 U. C.Q. B. 297) 106, 871, 874 Clements v. People (5 Parker C. C. 337) 460,469 Cleveland v. State (8 Texas Ap. 44) 992 , State V. (58 Maine, 564) 520 Cleworth, Reg. v. (4 B. & S. 927) 85, 88, 663 Click V. State (3 Texas, 282) 569 608 1043 582 489 206 642 58, 582 148, 158 642 253, 254 231 403, 885 254 489, 491 582 538, 539 879 58 1064 933 285 619 420 148 Section Click, State v. (2 Ala. 26) 66, 263 Clifford, Com'th v. (8 Cush. 215) 933 V. State (56 Ind. 245) 420 Clinch, Rex v. (1 Leach, 540) 460, 470 Cline, People v. (44 Mich. 290) 420 Close, State v. (35 Iowa, 570) 58, 763, 777, 810, 816 Closs, Reg. V. (Dears. & B. 460 ; 7 Cox C. C. 494) 272, 275 Cloud V. State (36 Ark. 151) 642, 652 Clough, People k. (17 Wend. 351) 4t;0 Clouser V. Clapper (59 Ind. 548) 294 Cluck V. State (40 Ind. 263) 1078 Clue, Com'th v. (3 Rawle, 498) 1043 Coal-Heavers' Case (1 Leach, 64) 695 Coats V. People (4 Parker C. C. 662) 403, 1032, 1086 Cobb, Rex v. (4 Went. PI. 79) 296 , State V. (1 Dev. & Bat. 115) 58, 777, 1012, 1027 Cobbett, Rex v. (29 Howell St. Tr. 2) 619, 623 Cobbett's Case (Whart. St. Tr. 322) 619, 627 Cobel V. People (5 Parker C. C. 348) 138, 143, 520, 528 Coburn, Commonwealth v. (132 Mass. 555) 520, 531 Cockreham v. State (7 Humph. 11) 364, 365, 370 Codling, Rex v. (28 Howell St. Tr. 178) 699, 721 Coe, Com'th v. (115 Mass. 481) 420 Coftey, State v. (41 Texas, 46) 206, 838, 839 Coggins i>. State (7 Port. 263) Coggswell, Stale v. (3 Blackf. 54) Cohea i: State (11 Texas Ap. 622) 66, 489, 493 415 116, 254, 256 Cohen, Ex parte (6 Cal. 318) 320 , Commonwealth v. (120 Mass. 198) 43, 58, 916 V. People (5 Parker C. C. 330) 58, 916 , Peoples (8 Cal. 42) 403 V. State (50 Ala. 108) 916 V. State (32 Ark. 226) 489, 506 Colm, State v. (9 Nev. 179) 180, 189 Colbert, State v. (75 N. C. 368) 871 Colden v. Eldred (15 Johns. 220) 172 Cole u. People (84 III. 216) 285,299 , Rex V. (Trem. P. C. 198) 828, 831 V. State (5 Eng. 318) 206, 558, 1068 v. State (10 Eng. 318) 109 Coleman v. Commonwealth (25 Grat. 865) 460, 474, 475 , People i». (10 Cal. 334) 520 V. State (2 Texas Ap. 512) 254 , State y. (5 Port. 32) 520,539 Colemer, Rex v. (Trem. P. C. 58) 940 Colepeppar, Rex v. (Trem. P. C. 190) 206, 223 Collberg, Com'th v. (119 Mass. 350) 222 Colledge, Rex v. (8 Howell St. Tr. 550) 987 coo INDEX TO THE CASES CITED. COX Section Collicott, Rex b. (2 Leach, 1048; Russ. & Ry. 212) 460, 476 Collier v. State (4 Texas Ap. 12) 353, 699, 711 Collins V. Com'th (3 S. & R. 220) 285, 289 , Com'th V. (2 Cush. 556) 663, 664 V. Larkin (1 R. I. 219) 172 V. People (39 111. 233) 933, 934 , Reg. V. (9 Car. & P. 456) 619, 621 , Reg. V. (Leigh & C. 471 ; 9 Cox C. C. 497) 111,582,612 , Rex V. (2 Leach, 827) 460 V. State (58 Inci. 5) 777, 820 , State V. (3 Hawks, 191) 342 , State V. (48 Maine, 217) 82, 777, 820 Colly V. State (55 Ala. 85) 420 Colmer, Rex v'. (Trem. P. C. 58) 633 Colter, State v. (6 R. L 195) 254, 255 Colton, Commonwealth v. (8 Gray, 488) 86, 489, 503, 6"63, 670 , Com'th u. (11 Gray, 1) 642, 655 Comer, Rex v. (1 Leach, 36) 254 Comfort V. Com'th (5 Whart. 437) 58, 846 , State V. (5 Misso. 357) 206, 558 Commings, Rex v. (5 Mod. 179) 680, 683 Compton, Rex v. (7 Car. &P. 139) 87, 254 V. State (13 Texas Ap. 271) 564 Concannon, Com'th v. (5 Allen, 502) 403 Coney, Reg. o. (8 Q. B. D. 534 ; 15 Cox C. C. 46) V. State (2 Texas Ap. 62) 206, Conger, People v. (1 Wheeler Crim. Cas. 448) Coningsmark, Rex u. (9 Howell St. Tr. 1) Conlee, State v. (25 Iowa, 237) Conley, State v. (39 Maine, 78) 54, 58, 520 Connell, Reg. o. (6 Cox C. C. 178) 1043, 1059 Conner v. Com'th (3 Binn. 38) 680, 690 V. Com'th (13 Bush, 714) 520 V. Com'th (2 Va. Cas. .30) V. State (14 Misso. 561) V. State (6 Texas Ap. 455) 58; , State V. (30 Ohio State, 405) Connolly, Com'th ;;. (97 Mass. 591) Connor, People u. (17 Cal. 3.54) ConoUy v. People (3 Scara. 474) 206, 899 216 420 520 680 871 254 582 642 420 .582 933, 934 254 1010 987 1044, 1059 Conwellt). State (3 Ind. 387) 929 Cony, Commonwealth v. (2 Mass. 523) 415 Cook, Rex V. (13 Howell St. Tr. 311) 987 V. State (11 Ga. 53) 82, 564 , State V. (52 Ind. 574) 460 V. Wood (30 Ga. 891 ) 294 Cooke, People v. (6 Parker C. C. 31 ) 43, 58, 420, 425 , Reg. V. (1 Fost. & F. 64) 420 39 Conoly V. State (2 Texas Ap. 412) Conroy, In re (54 How. Pr. 432) Conspirator.s, Rex v. (2 Howell St. Tr. 159) Conway v. Reg. (1 Cox C. C. 210) Section Cooler V. State (55 Ala. 162) 881 Coombes, Rex v. (1 Leach, 388) 520, 538 Cooper, Reg. o. (2 Car. & K. 586) 460 , Reg. V. (1 Den. C. C. 459; 3 Cox C. C. 559 ; 2 Car. & K. 876) 206, 218 , Reg. o. (Law Rep. 2 C. C. 123) 403, 411 , Reg. V. (1 Q. B. D. 19 ; 13 Cox C. C. 123) 420 , Reg. u. (2 Q. B. D. 510 ; 13 Cox C. C. 617) 420 V. State (37 Ark. 412) 484, 485 V. State (37 Ark. 421) 484, 485 V. State (75 Ind. 62) 365 , State V. (32 La. An. 1084) 1078 Cope, Rex v. (6 A. & E. 226 ; 7 Car. & P 720) 680, 690 Copeland, Reg. v. (Car. & M. 516) 420, 425 Copcly, Territory v. (I New Hex. 571) 489, 502 Copp, State V. (15 N. H. 212) 838, 840 Copping V. State (7 Texas Ap. 61) Corbett, Reg. v. (4 Post. & F. 555) , State V. (1 Jones, N. C. 264) , State!). (12 R. L 288) CordelU. State, (22 Ind. 1) Core u. James (Law Rep. 7 Q. B. 135) Corley, State v. (4 Baxter, 410) Corll, State v. (73 Ind. 535) Cornelius v. State (13 Texas Ap. 349) Cornell w. State (7 Baxter, 520) Cornwall v. Reg. (33 U. C. Q. B. 106) 1086, Corrigan, State v. (24 Conn. 286) Corson, State v. (59 Maine, 137) 58, 365 760 272 619 520 32 460 642 904, 905 777, 810, 813 569, 1090 642 871, 875 Cesser, Reg. o. (13 Cox C. C. 187) 403 Costello, Com'th v. (118Mass. 454) 777, 820 , Com'th V. (133 Mass. 192) 642, 659 Costley, Com'th v. (118 Mass. 1) 58, .520 Cothran v. State (39 Missis. 541) 871 Cottle, State v. (15 Maine, 473) 642, 655 , State V. (70 Maine, 198) 439 Cotton, State v. (4 Fost. N. H. 143) 582, 602 Conlson, Reg. v. (1 Den. C. C. 592; 4 Cox C. C. 227) 420, 423 Counsil, State v. (Harper, 53) 916 Courtney, Reg. v. (7 Cox C. C. Ill) 871 Cousins V. State (.50 Ala. 113) 997, 1001 Coverdale v. State (60 Ind. 307) 642, 649 Covington v. State (6 Texas Ap. 512) 168 Covyu. State (4 Port. 186) 489,503 Cowdin, State v. (28 Kan. 269) 420 Cowell, State v. (4 Ire. 231 ) 148 Cowley II. People (21 Hun, 415; 83 N. Y. 464 ; 8 Abb. New Cas. 1 ) 46, 75, 81, 750, 751, 752 Cowper, Rex v. (13 Howell St. Tr. 1106) 520 Cox, Com'th V. (7 Allen, 577) 699, 718 , People V. (9 Cal. 32) 520 , Reg. V. (3 Cox C. C. 58) 695 609 CRO INDEX TO THE CASES CITED. DAL Cox, Rex V. (Trem. P. C. 252) V. State (8 Texas Ap. 254) V. State (13 Texas Ap. 479) , Stale V. (32 Misso. 566) Coxhead, Rex c (1 Car. & K. 623) Coxwell V. State (66 Ga. 309' Section 577 66 871 997, 998 278 520 489, 503 . 129; 1 206, 212 777, 805 148, 159 ;. C. 303 ; 672, 777, 819 (8 Gray, 206, 212, 558 Crabtree, State v. (27 Misso. 232) 663, 664 Craddock, Reg. v. (2 Den. C. C. 31 ; 4 Cox C. C. 409) 582, 589, 602 Craft, State i).(72 Misso. 456) 111, 582, 614 Cramer, People v. (5 Parker C. C. 171) 642, 1043, 1059, 1068 Cramp, Reg. v. (5 Q. B. D. 307 ; 14 CoxC. C. 401) 109,138,141 , Rex V. (Kuss. & Ry. 327) 426 Crane, United States u. (3 Clit. 211) 232 Craven, Rex v. (Russ. & Ry. 14) 582, 601 Crawford, Commonwealth r. (9 Gray, 128) , Reg. V. (2 Car. & K. Den. C. C. 100) , !■. State (33 Ind. 304) , State V. (10 Rich. 361) Crawshaw, Reg. v. (Bell C 8 Cox C. C. 375) Creed, Commonwealth i 387) Creevey, Rex u. (1 M. & S. 273) 619 Crespin, Reg. v. (11 Q B. 913) 206 Crichton v. People (6 Parker C. C. 363; 1 Abb. Ap. 467) 138, 141 Ciighton, Rex v. (Russ. & Ry. 62) 403 Crim V. State (43 Ala. 53) 180 Crimm V. Commonwealth (119 Mass. 326) 1068, 1089, 1090 Crisham, Reg. v. (Car. & M. 187) 115, 904, 914 Crisp, Rex v. (1 B, & Aid. 282) 127 Crispe, Rex v. (Trem. P. C. 83) 285, 310 Cri.'isie, People v. (4 Denio, 525) 420, 428 Crocker i\ Mann (3 Misso. 472) 172 , Rex I'. (2 Leach, 987 ; Russ. & Ry. 97 ; 2 New Rep. 87) 460, 464 V. State (47 Ala. 53) 933 Crofton V. State (25 Ohio State, 249) 777, 782, 785, 786 Crofts V. People (2 Scam. 442) 460, 469 Cronin, People v. (34 Cal. 191) 520 , Reg. 0. (36 U. C. Q. B 342) 180 Crook, Rex !■. (6 Howell St. Tr. 201) 919 Crookham v. State (5 W. Va. 510) 206, 556, 558 'Cropper, Reg. v. (2 Moody, 18) 460, 472 Crosby, State v. (17 Kan. "396) 403 , U. S. u. (1 Hughes, 448) 285, 312 Cross V. People (47 111. 152) 66, 460, 469 , Rex V. (Trem. P. C. 136) 875 , Rex i>. (Trem. P. C. 236) 691 Crossfield, Rex«. (26 Howell St. Tr. 1) 987 Crossley, Rex v. (7 T. R. 315) 4, 871, 873, 874 Croswell, People i'. (3 Johns. Cas. 337) 619 Crow V. State (41 Texas, 468) 206 ■Crowe, In re (3 Cox C. C. 123) 940 610 Section Crowe V. People (92 111. 231) 619 Crowlev, People v. (23 Hun, 412) 365, 366 , S'tate V. (41 Wis. 271) 285, 290 Crowner, State v. (56 Misso. 147) 148, 158 Crowther, Commonwealth o. (117 Mass. 116) 85,663,666,670 Crozier v. People (1 Parker C. C. 453) 944, 949 State V. (12 Nev. 300) 520 Cruikshank, United States v. (1 Woods, 308) 394 Crumpton, Reg. v. (Car. & M. 597) 520, 530 Cruse, Reg. u. (2 Moody, 53; 8 Car. &P. 541) 206,214 Crusen v. State (10 Ohio State, 258) 871 Culkin, Rexu. (5 Car. &P. 121) 520 Cumberland i;. Rex (3 B. & P. 3.54) 1012, 1023 Cummings, Com'th v. (6 Gray, 487) 642 Cummins v. Siate (58 Ala. 387) 247 V. State (12 Texas Ap. 121) 582, 608 Cundick, Rex v. (D. & R., N. P. 13) 956 Cunningham, Commonwealth v. (13 Mass. 245) , People V. (1 Denio, 524) 1043 776, 777, 828, 831 531) 1082 378 777, 805 222, 925 , People r. (3 Parker C. C V. State (2 Speers, 246) Cure, State v. (7 Iowa, 479) Curlin v. State (4 Yerg. 143) Curling, Rex v. (Russ. & Ry. 123) 879 Cuiran, Com'th v. (119 Mass. 206) 642. 644 , State V. (51 Iowa, 112) 944, 948 Cunie V. Henry (2 Johns. 433) 93 Ciirry v. State (17 Fla. 683) 164 V. State (4 Texas Ap. 574) 206, 904, 910 Curtis, Com'th v. (9 Allen, 266) 136, 171 , Commonwealth v. (11 Pick. 134) 582, 588, 1043 V. People (Breese, 197) 206, 658 V. People (1 Scam. 285) 206, 558 , State V. (4 Dev. & Bat. 222) 442 , State V. (30 La. An. 814) 254 Custer, State v. (65 N. C. 339) 1010 Cuthbert, State u. (T. U. P. Chad. 13) 1079 Cuthell, Rex v. (27 Howell St. Tr. 642) 619, 621 Cutter, State r. (65 Misso. 503) 58 Cutts, Reg. V. (4 Cox C. C. 435) 871 Cyphers, People v. (5 Parker C. C. 666) 1038, 1086 D., Rex V. (Trem. P. C. 271) 1034 Daily v. State (10 Ind. 536) 582, 593 Dakin v. Hudson (6 Cow. 221) 93 Dale, Reg. v. (Dears. 37 ; 6 Cox C. C. 93) 680, 687 , Rex V. (1 Moody, 5) 520 , State V. (8 Oregon, 229) 403 Dalton, People v. (58 Cal. 226) 958 , State V. (27 Misso. 13) 206, 212, 558 DAY INDEX TO THE CASES CITED. DEN Section Damarest v. Haring (G Cow. 76) 619 Dammaree, Reg. u. (15 Howell St. Tr. 522) 987 Damon, State v. (2 Tvler, 387) 1043 Dana, Com'th v. (2 Met. 329) 672, 678 Danby,Rex !,-. (11 Howell St. Tr. 599) 1045 Dancy, State v. (83 N. C. 608) 206, 904, 910 Danforth, State v. (3 Conn. 112) 206, 556, 558 Danger, Reg. v. (Dears. & B. 307 ; 7 Cox C. C. 303) 420, 427 Daniel v. State (61 Ala. 4) 420 , State V. (89 N. C. 553) 577 Daniels, Com'th v. (2 Va. Cas. 402) 365 V. State (60 Ala. 56) 992 Dann, Rex v. (1 Moody, 424) 1043 Dannelly, Rex v. (Russ. & Ry. 310) 116, 254, 256 Darley, Rex v. (4 East, 174) 489, 507 Darling, Commonwealth y. (129 Mass. 112) 253, 254, 256 Darnell u. State (43 Texas, 147) 167 V. State (6 Texas Ap 482) 346 Dashing v. State (78 Ind. 357) 337 Davenport, &c. Railroad, State v. (47 Iowa, 507) 1012 Davidson, Com'th w. (1 Cush. 33) 420 w. Goodall (18 N. H. 423) 294 State V. (38 Misso. 374) 933 Davis's Case (Chase Decis. 1) 987, 1031 Davis w. Com'th (13 Bush, 318) 80,881 w. Com'th (6 Casey, Pa. 421) 699 , Com'th V. (9 Mass. 415) 285, 291 , Com'th V. (121 Mass. 352) 642 , People V. (4 Parker C. C. 61 ) 206, 212, 558 , People V. (21 "Wend. 309) , Reg. <;. (11 Cox C. C. 181 , Keg. V. (2 Moody, 177; 9 & P. 427) , Reg. V. (18 U. C. Q. B. 180) , Rex V. (I Leach, 493) V. State (54 Ala. 88) V. State (3 Coldw. 77) V. State (.33 Ga. 98) V. State (40 Ga. 229) V. State (3 Har. & J. 154) 460, 467 420, 424 Car. 460, 475 420 695 254 254 80, 582, 588 582 109, 206, 963, 965 777, 805, 820 933 520 489, 503 V. State (52 Ind. 488) V. State (69 Ind. 130) V. State (39 Md. 355) V. State (7 Ohio, 204) V. State (19 Ohio State, 270) 58, 489 502 V. State (32 Ohio State, 24) 489, 502 V. State (42 Texas, 226) 904, 908 V. State (2 Texas Ap. 162) 176 D. State (4 Texas Ap. 456) 206, 213 V. State (13 Texas Ap. 215) 164 , State V. (41 Iowa, 311) 520 , State V. (53 Iowa, 252) 460, 464, 472, 474 , State V. (2 Ire. 153) 58, 164 Section Davis, State v. (22 Minn. 423) 58, 384, 385 , State i). (29 Misso. 391) 206,212 , State V. (70 Misso. 467) 752, 754 , State u. (69 N. C. 313) 460 , State I'. (84 N. C. 787) 871 , State V. (87 N. C. 514) 520 , State t). (26 Texas, 201) 206,212,558 , United States v. (5 Mason, 356) 582 Davison, Reg. v. (2 Post. & F. 250; 8 Cox C. C. 360) 1043, 1044, 1059 , Rex V. (31 Howell St. Tr. 99) 680, 687 Davitt, Reg. . (7 East, 218) 680,691 Dodd V. State (33 Ark. 517) 254 Dodson, State v. (4 Oregon, 64) 520, 542 Doe, State v. (79 Ind. 9) 582 , State V. (50 Iowa, 541 ) 509 Doherty v. Com'th (109 Mass. 359) 642 , Commonwealth v. (10 Cush. 52) 100, 106, 109, 254 , Com'th V. (103 Mass. 443) 263, 268 612 Section Doherty, Com'th v. (116 Mass. 13) 642, 646 , Com'th V. (127 Mass. 20) 403, 411 Dohme v. State (68 Ga. 339) 777, 805 Dolan II. People (64 N. Y. 485) 1036, 1038 , People V. (9 Cal. 576) 520 , State V. (69 Maine, 573) 95 Dollarhide v. V. S. (Morris, 233) 206, 212 Donahoe, Com'th v. (130 Mass. 280) 642 Donald, Peoples. (48 Mich. 491) 403 Donaldson, State v. (3 Vroom, 151) 305 Donnelly, Rex v. (28 Howell St. Tr. 1070) 987 , Rex V. (I Moody, 438) 460, 470 V. State (2 Dutcher, 463) 1090 Donniger v. State (52 Ind. 326) 489, 504 Donovan, Commonwealth v. (16 Gray, 18) 777,782,820,821 , Reg. I;. (4 Cox C. C. 399) 111,206 Dooly, State v. (64 Mis'o. 146) 254 Doran, Rex r. (28 Howell St. Tr. 1041) 987 Dorman v. State (34 Ala. 216) 642 Dorrell v. State (80 Ind. 566) 598, 992, 995 Dorus, Com'th i: (108 Mafs. 488) 977, 979 Doty, State v. (5 Oregon, 491) 206, 558 Doud, State ;•. (7 Conn. 384) 890, 891 Dougherty, Commonwealih ». (6 Gray, 349) 699, 720 V. People (1 Col. Ter. 514) 138, 141 , State V. (4 Oregon, 200) 672, 673 Doughty, Rex v. (Trem. P. C. 285) 115, 520, 539, 1090 Douglass. Eeg. (3 Cox C. C. 163) 680 , Eeg. t. (Car. & M. 193) 109, 206, 212, 381 , Eex V. (1 Moody, 462) 420 Dougla,«s V. Com'ih (8 Watts, 535) 278 , Rex V. (1 Camp. 212) 420 V. State (72 Ind. 385) 777, 820 Dourdon, State v. (2 Dev. 443) 460, 467, 474 Dovaston v. Payne (2 H. Bl. 527) Dove, Com'th v. (2 Va. Cas. 26) Dow, Com'th V. ( 10 Met. 382) Dowdell V. State (58 Ind. 333) Dowe, State v. (27 Iowa, 273) Dowell, State v. (3 Gill & J. 310) Dowers, State v. (45 N. H. 543) Dowlin, Eex v. (5 T. E. 311) Dowling, Eeg. v. (3 Cox C. C. 509) 172 642 136, 177 642 420 582 1007 1068 520, 942 56 115, 520, 539 V. State (66 Ga. 160) 763, 772 Doyle V. State (49 Ala. 28) 403 Doyley, Eex v. (Trem. P. C. 225) 241, 243 Dozier, State w. (73 N. C. 117) 254 Drakard, Eex v. (31 Howell St. Tr. 495) 619 Drake, Com'th v. (124 Mass. 21) 138, 142 , State V. (1 Vroom, 422) 138, 140 , State ». (1 Winst. 241) 451 Draper, Eex v. (30 Howell St. Tr. 959) 619 V. State (5 Sm. & M. 664) Downing, Reg. ^. (2 Car. & K. 382) EAR INDEX TO THE CASES CITED. ELS Section Drennan, Territory v. (1 Mon. Ter. 41) 1078 Drew V. Commonwealth (1 Whart. 279) 460 , Com'th 0. (3 Cush. 279) 489, 503 f. State (5 Kng. 82) 43, 489, 506 Di-eyer v. State {H Texas Ap. 503) 582 Driver, State v. (78 N. C. 423) 1069 Drury v. Defotitaine (1 Taunt. 131) 662 Du Bois V. State (50 Ala. 139) 582, 589, 603, 604 Ducey, Commonwealth v. (126 Mass. 269) 206, 838, 839 Ducommun v. Hysinger (14 111. 249) 93 Dudley, Com'th v. (6 Leigh, 613) 381 Duffield, Reg. v. (5 Cox C. C. 404) 285, 303, 308 Duffin, Rex v. (22 Howell St. Tr.318) 619, 621 Duffy, Reg. v. (1 Cox C. C. 283) 1038 , Reg. V. (2 Cox C. C. 45) 639 , Reg. u. (4 Cox C. C. 172) 1038 , Reg. V. (4 Cox C. C. 294) 619, 621 Dufour, State v. (63 Iml. 567) 460, 475 Dugdale v. Reg. (1 Ellis & B. 435 ; Dears. 64) 629, 1084 Dukes V. State (11 Ind. 557) 58, 520, 540 Duncan, State v. (9 Port. 260) 575 Dunkel, People v. (39 Mich. 255) 695, 750, 757 Dunn, Commonwealth v. (Ill Mass. 425) 642, 777, 820 V. Reg. (3 Cox C. C. 205) 871, 874 y. Reg. (12 Q. B. 1031) 871 , Reg. V. (1 Car. & K. 730) 871 , Reg. V. (12 Q. B. 1026) 871 , Rex V. (26 Howell St. Tr. 839) 285, , State V. (26 Ark. 34) , State ?■. (73 Misso. 586) Dunnett, Reg. v. (1 Car. & K. 425) 750, 757 , Hex V. (2 Leach, 581 ) 460, 475 Dunning, Reg. v. (Law Rep. 1 C. C. 290; 11 Cox C. C. 651) 871 Duvden v. State (52 Ga. 664) 929 Durham, State v. (72 N. C. 447) 904, 905 Duval u. Reg. (14 L. C. 52) 1086 Duvall V. State (63 Ala. 12) 582 Dwyer v. State (12 Texas Ap. 535) 520, 544 Dyer v. Commonwealth (23 Pick. 402) 916 , Commonwealth v. (128 Mass. 70) 578 , State V. (59 Maine, 303) 138, 142 , State V. (41 Texas, 520) 420, 430 Dyott V. Com'th (5 Whart. 67) 239 Dyson, Rex v. (Russ. & Ry. 523) 520, 952 Eadon, Rex v. (31 Howell St. Tr. 1064) 853 Eagan, Com'th v. (103 Mass. 71 ) 206 Eagleton, Ueg. v. (Dears. 376 ; 6 Cox C. C. 559) 272, 273, 420, 434 Earhart -;. Com'th (9 Leigh, 671) 699, 726 Earle, Com'th v. (1 Whart. 525) 520, 533 Earp, State «. (41 Texas, 487) 582 287 148 925 Section Eason, State v. (70 N. C. 88) 442 , State V. (86 N. C. 674) 420 East Boston Ferry, Commonwealth V. (13 Allen, 589) 750, 756 Easterby, Rex «. (2 Leach, 947 ; Russ. & Ry. 37) 699, 721 Eastman. Com'th v. (1 Cush. 189) 285, 291 V. Rice (14 Maine, 419) 172 Eastrington, Kex v. (5 A. & E. 765) 1046 Eaton, Com'th v. (9 Pick. 165) 642 , Com'th V. (15 Pick. 273) 672, 677 , Rex V. (22 Howell St. Tr. 786) 619, 621 , Rex V. (23 Howell St. Tr. 1013) 619, 621 , Rex V. (31 Howell St. Tr. 927) 243 , Rex V. (4 Went. PI. 199) 621 Eberle, Com'th v. (3 S. & R. 9) 285 Eccles, Rex v. (1 Leach, 274 ; 3 Doug. 337) 285, 291, 301 Eckert, Commonwealth v. (2 Browne, Pa. 249) 777,1012,1025 Edes, Rex v. (Trem. P C. 61) 633, 940 Edgerton v. State ( 67 Ind. 588) 663 Edmonds v. State (34 Ark. 720) 79, 520 Edmondson v. State (41 Texas, 496) 520 , State V. (43 Texas, 162) 520 Edmundson, State v. (64 Mi.sso. 398) 520 Edwards, Com'th m. (12 Cush. 187) 642, 644 , Com'th V. (4 Gray, 1 ) 642, 655 , Reg. V. (8 Car. & P. 611) 520, 525, 526 , Rex V. (1 East, 278) 439 , Rex V. (Russ. & Ry. 283) 881 , Rex V. (Trcra. P. C. 103) 275 , Rex V. (Trem. P. C. 192) 442, 1060 V. State (49 Ala. 3.34) 420 y. State (62 Ind. 34) 58,87,2.54 «. State (10 Texas Ap. 25) 148,152 , State V. (19 Misso. 674) 6, 927 , State V. (36 Misso. 394) 582 , State V. (70 Misso. 480) 520 Egner v. State (25 Ohio State, 464) 58 Eighmy v. People (79 N. Y. 546) 871, 876 Eitel V. State (33 Ind. 201) 85, 663, 668 Elder, State w. (65 Ind. 282) 138 Elkins V. State (13 Ga. 435) 642 Ellars V. Stale (25 Ohio State, 385) 420, 428 Ellins, Rex v. (Russ. & Ry. 188) 885 Elliot, Reg. V. (Leigh & C. 103) 156, 777, 802 , Rex V. (3 Howell St. Tr. 293) 633, 940 , Rex V. (I Leach, 175) 460, 465 Elliott V. Com'th (12 Bush, 176) 582 V. State (36 Ohio State, 318) 977, 979 Ellis V. Commonwealth (78 Ky. 130) 699 , Reg. V. (2 Car. & K. 470) 520, 529 V. State (7 Blackf. .534) 777, 828 Ellison V. State (6 Texas Ap. 248) 997, 999 Elmsly's Case (2 Lewin, 126) 206, 558 Elrington, Reg. v. (1 B. & S. 688) 206, 223 , Reg. V. (9 Cox C. C. 86) 1043 Elschlep V. State (U Texas Ap. 301) 904, 905 613 FAN INDEX TO THE CASES CITED. FIN Section Elwell, Commonwealth v. (1 Gray, 463) 81 , Commonwealth v. (2 Met. 190) 150 Ely, Reg. <,-. (15 Q. B. 827 ; 4 Cox C. C. 281) 1012,1046 Embry v. Com'th (79 Ky. 439) 860 Emden, Rex v. (9 East, 437) 1043 Emerick, State v. (35 Ark. 324) 642, 652 Emmet, Rex v. (28 Howell St. Tr. 1098) 987 Emory v. State (6 Blackf. 106) 415 Endsley v. State (76 Ind. 467) 442 England, State v. (19 Misso. 386) 58 English, Com'th I'. (11 Philad.439) 285,312 , People V. (30 Cal. 214) 206, 558 , Reg. y. (12 Cox C. C. 171) 420 , State «. (67 Misso. 136) 582 Enloe, State v. (4 Dev. & Bat. 373) 285, 312 Enoch, People v. (13 Wend. 159) 520 Enochs, State v. (69 Ind. 314) 992 Enwright v. State (58 Ind. 567) 489 Eppstein v. State (II Texas Ap. 480) 642 Erb s. State (35 Ark. 631) 642 Erie's Case (2 Lewin, 133) 696 Errington's Case (2 Lewin, 217) 520, 524 Esdaile, Reg. v. (1 Fost. & F. 213 ; 8 Cox C. C. 69) 285, 291 Eslava v. State (44 Ala. 406) 489, .506 Espy V. State (47 Ala. 533) 642 Essex, Rex v. (Trem. P. C 205) 1012, 102.3, 1043, 1053 Etherington, Rex v. (2 Leach, 671) 582, 587 Euper V. State (35 Ark. 629) 489, 503 Evans, Com'th v. (132 Mass. 11) 763, 770 , Com'th V. (13 S & R. 426) 415 V. People (90 111. 384) 285, 291 J'. People (12 Mich. 27) 520 , Reg. c (7 Cox C. C. 151) 582 , Reg. V. (Dears. & B. 236 ; 7 Cox C. C. 293) 849 , Rex V. (5 Car. & P. 553) 420, 423 !•. State (1 Humph. 394) 206, 558 , State V. (7 Gill & J. 290) 582, 593 , State r. (5 Ire. 603) 777, 782 V. Walton (Law Bep. 2 C. P. 615) 303 Everett, Rex v. (8 B. & C 114) 852 Evers, State v. (49 Misso. 542) 420 Eivell V. State (6 Yerg. 364) 564 Ewington, Reg. v. (2 Moody, 223 ; Car. & M. 319) 871,876 Ezell V. State (54 Ala. 165) 520, 543 Faderman, Eeg. v. (4 Cox C. C. 359) 460, 478 Fnirchild, People v. (48 Mich. 31) 180 Fairlee v. People (11 III. 1) 58, 520 Fairlie, Reg. i'. (9 Cox C. C. 209) 738, 871, 876 FalUingham, Reg. u. (Law Rep. 1 C C. 222 ; 11 Cox C. C. 475) 219 Fallon, Reg. v. (Leigh & C. 217; 9 Cox C. C. 242) 582, 589 Falvey, Com'th v. (108 Mass. 304) 699,714 Fancher, State v. (71 Misso. 460) 420 614 Section Fanning, Reg. v. (10 Cox C. C. 411) 881 Fanshaw, Rex v. (Trem. P. C. 199) 1012, 1023, 1068, 1086 Farley, State v. (14 Ind. 23) 205 Farmer, Rex v. (Trem. P. C. 109) 275 , Rex V. (Trem. P. C. 269) 1003 , State V. (4 Ire. 224) 58, 904, 905 Farrell, Commonwealth v. (105 Mass. 189) 104.3, 1044 , Reg. u. (9 Cox C. C. 446) 777,802 V. State (38 Ind. 136) 777, 794, 820 V. State (45 Ind. 371) 642, 652 Farren, Com'th v. (9 Allen, 489) 763, 770 Farrier, State v. (1 Hawks, 487) 378, 977 Farringdon, Rex v. (Trem. P. C. 250) 118 Faucett, State v. (4 Dev. & Bat. 107) 642 Faulkner, Reg. v. (13 Cox C. C. 550) 180 , Reg. V. (26 U. C. Q. B. 529) 642 Fauntleroy, Rex v. (1 Moody, 52) 460,475 Fearnley, Rex v. (1 T. E. 316) 53, 323 Fears, United States v. (3 Woods, 510) 838 Feely, Com'th v. (1 Va. Cas. 321) 885 , Commonwealth v. (2 Va. Cas. 1 ) 60, 68, 325, 328 Fehrenback, United States . State (61 Ind. 69) Goodall, Reg. v. (2 Cox C. C. 41) Goodchild, Reg. v. (2 Car. & K. 293) Goode, State v. (24 Misso. 361) Goodenough, Reg. v. (Dears. 210) Goodere, Rex v. (17 Howell St. Tr. 1003) 520, Goodfellow, Reg. v. (Car. & M. 569) 871, 876 Goodhall, Reg. v. (1 Den. C. C. 187) 142 , Rex V. (Russ. & Rv. 461 ) 420 Goodhue v. Com'th (5 Met. 553) 642, 649 I'. People (94 111. 37) 403 Goodloe V. State (60 Ala. 93) 56, 1064 Goodman, Rex v. (13 Howell St. Tr. 359) 106, 225, 558 Goodnow, Commonwealth v. (117 Mass. 114) 90, 1012, 1015 Goodrich v. People (3 Parker C. C. 622 ; 19 N. Y. 574) 58, 763, 764, 765 , State V. (46 N. H. 186) 582 , State V. (14 W. Va. 834) 881, 883 Goodson V. State (32 Texas, 121) 582, 606 Goodwin's Case (1 Lewin, 212) 885 Goodwin, Com'th y. (122 Mass. 19) 977, 979 Gorbutt, Reg. v. (Dears. & B. 166 ; 7 CoxC. C. 221) 582,584 Gordon, Rex v. (21 Howell St. Tr. 4S5) 987 , Rex V. (22 Howell St. Tr. 175) 619 , Rex V. (22 Howell St. Tr. 213) 619, , 627 , Rex u. (1 Leach, 515) 520,838 V. State (59 Ind. 75) 1064 u. State (2 Texas Ap. 154) 680 Gorham, States. (11 Conn. 233) 384, 385 , State V. (65 Maine, 270) 95, 642, 644 , State V. (55 N. H. 152) 933 Gorman, Com'th v. (16 Gray, 601) 177 V. State (42 Texas, 221) 206, 212 Goss, Reg. V. (Bell C. C. 208; 8 Cox C. C. 262) 420 State V. (69 Maine, 22) 403, 409 Gostwick, Rex v. (Trem. P. C. 187) 285, 292 Gotley, Rex v. (Russ. & Ry. 84, note) 127 Goughlemann v. People (3 Parker G. C. 15) 904, 905 Gould V. People (89 111. 216) 929 Goure, United States v. (4 Cranch C. C. 488) 838, 840 61T GEE INDEX TO THE CASES CITED. HAD Section Gourlay, Rex v. (Jebb, 82) 403 Govers, Bex v. (Say, 206) 272, 276 Gowen, Commonwealth v. (7 Mass. 378) 777, 1012, 1015 Grady, Com'th v. (108 Mass. 412) 642, 644 Graham, People v. (1 Buf. 151) 460 , Heg. u. (ISCoxC. C. 57) 403 , Hex V. (2 Leach, 5+7) 582 , Rex V. (4 Went. PI. 25) 466, 474 V. State (1 Pike, 171) 489, 506 , State V. (51 Iowa, 72) 206, 558 , State V. (13 Kan. 299) 403, 409 , State V. (3 Sneed, 134) 243 Grahme, Rex v. (12 Howell St. Tr. C46) 987 Grainger, Rex v. (3 Bur. 1617) 1039 Grames, State v. (68 Maine, 418) 642, 645 Grand Trunk Railway, State u. (59 Maine, 189) 1012, 1015 , State V. (60 Maine, 145) 520, 531 Granice, People v. (50 Cal. 447) 520 Grant, Com'th v. (116 Mass. 17) 871 V. People (4 Parker C. C. 527) 944, 949, 1043, 1044, 1059 V. State (55 Ala. 201) 582 Graves, People v. (5 Parker C. C. 134) 79, 958 V. State (63 Ala. 134) 254 Gray, Reg. v. (Leigh & C. 365 ; 9 Cox C. C. 417) 699,719 , Rex l: (7 Car. & P. 164) 904 V. State (2 Harring. Del. 76) 1090 V. State (7 Texas Ap. 10) 680, 691 , State V. (29 Minn. 142) 420, 430 Great North of England Railway, Reg. V. (9 Q. B. 315 ; 2 Cox C. C. 70) 1012, Great Western Railway, Reg. v. [21 U. C. Q. B. 555) Green u. Commonwealth (12 Allen, 155) 520, 1068, 1087 , People V. (15 Cal. 512) 582 , Reg. ,;. (3 Car. & K. 209) 460, 466 , Reg. V. (Dears. & B. 113 ; 7 Cox C. C. 186) , Reg. V. (Jebb, 282) , Rex V. (Trem. P. C, ell St. Tr. 159) V. State (58 Ala. 190) ;;. State (66 Ala. 40) V. State (1 Texas Ap. 82) , State V. (24 Ark. 591) , State V. (7 La, An. 518) Greenacre, Rex v. (8 Car. & P. 35) Greene v. State (79 Ind. 537) 1015 1012 1043 460, 471 6 ; 7 How- 520 739 520 206, 558 871 206, 558 520 176 Greenen, Commonwealth v. (11 Al- len, 241) 777,820 Greenhalgh, State v. (24 Misso. 373) 206, 212, 555, 558 Greeniflf, Rex v. (1 Leach, 363) 890, 893 Greenlee v. State (4 Texas Ap. 345) 206, 904, 910 , State V. (1 Dev. 523) 460 Greenley v. State (60 Ind. 141) 520 618 Section Greenwood, Reg. v. (23 U. C. Q. B. 250) 180 , Reg. V. (23 U. C. Q. B. 255) 116, 520, 539 V. State (64 Ind. 250) 205 , State V. (5 Port. 474) 582, 1068 Creep, Rex v. (5 Mod. 342) 871 Grcepe, Rex v. (2 Salk. 513) 872 Greer v. State (50 Ind. 267) 205 Greeson v. State (5 How. Missis. 33) 933 Gregg V. State (64 Ind. 223) 682 Gregory v. Derby (8 Car. & P. 749) 93 V. Reg. (15 Q. B. 957; 5 Cox C. C. 247) 619, 1068 , Reg. V. (Law Rep. 1 C. C. 77 ; 10 Cox CO. 459) 106,582,611 , Reg. V. (8 Q. B. 508) 619, 620 , Rex V. (5 B. & Ad. 555) 819 , State V. (33 La. An. 737) 180 Grewell, State i: (19 Kan. 189) 992 Grey, Reg. u. (4 Fost. & F. 73) 777, 798 , Rex V. (Trem. P. C. 215 ; 9 Howell St. Tr. 127) 285, 294 Griepe, Rex i-. (1 Ld. Raym. 256) 872 Griffin, Com'th v. (21 Pick. .523) 341 , People V. (1 Idaho Ter. n. s. 476) 663 V. State (37 Ark. 437) 680, 890, 895, 897 f. State (26 Ga. 493) 111,254,260 V. State (4 Texas Ap. 390) 403 , State V. (43 Texas, 538) 777, 802, 804 , State v. (18 Vt. 198) 333 Griffith, Rex );. (Vern. & S. 612) 325, 326 Griffiths, Com'th v. (126 Mass. 252) 933 Grimwade, Reg. v. (1 Den. C. C. 30 ; 1 Car. & K. 592 ; 1 Cox C. C. 85) 977 Grisham v. State (2 Ycrg. 589) 148, 156 Gross V. State (2 Ind. 135) 1065 Gruby, Reg. v. ( 1 Cox C. C. 249) 420 Grund v. State (40 Ala. 709) 1068 Grupe V. State (67 Ind. 327) 642, 652 Guernsey, State v. (9 Misso. Ap. 312) 992 Guitean, United States v. (Official Record of the case, 1) 520, 536 Gulick V. Loder (2 Green, N. J. 572) 93 Gulliver v. Cozens (1 C. B. 788) 172 Gulston, Reg. v. (2 Ld. Raym. 1210) 929 Gunyon ?■. State (68 Ind. 79) 890, 893 Gurnee, State !). (14 Kan. Ill) 992 Gurney, Reg. v. (11 Cox C. C. 414) 285, 291 , State V. (33 Maine, 527) 642, 645 Gustafson, State v. (50 Iowa, 194) 484,485 Gustin, State v. (2 Soutliaid, 744) 460, 1068 Gutsole V. Mathers (1 M. & W. 495) 93 Guy, Rex v. (6 Went. PI. 401) 854 H. P., Rex V. (Trem. P. C. 162) 874 , Rex «. (Trem. P. C. 196) 1012 Hackett v. Commonwealth (3 Harris, Pa. 95) 58,111,254,259 Hackley, People v. (24 N. Y. 74) 1068 Hadcraft, Com'th v. (6 Bush, 91) 642, 652 HAM INDEX TO THE CASES CITED. HAR Section Hadfield, Reg. v. (Law Rep. 1 C. C. 253; 11 CoxC. C. 574) 1012, 1021 — -, Rex V. (27 Howell St. Tr. 1281) 987 Hadley, State v. (54 N. H. 224) 285 Hadlock, State v. (43 Maine, 282) 642 Hafter v. State (51 Ala. 37) 642, 656 Hagar v. State (35 Ohio State, 268) 87, 254 Hasgei-ty v. People (6 Lans. 332; 53 N. Y. 476) 898 Hague, Reg. u. (9 Cox C. C. 412) 384, 387 Haigh, Rex v. (31 Howell St. Tr. 1092) 927 Haight V. Badgeley (15 Barb. 499) 303 Hailey, State v. (2 Strob. 73) 206, 838, 840 Haines, Reg. u. (2 Car. & K. 368, note) 520, 530 , State V. (30 Maine, 65) 777, 805, 807 Halbrook v. State (34 Ark. 511) 881 Hale, People v. (1 Wheeler Crim. Cas. 174) 420 V. State (36 Ark. 150) 642, 6.52 , State V. (44 Iowa, 96) 1035 , U. S. u. (4 Cranch C. C. 83) 420 Hales, Rex a. (17 Howell St. Tr. 161) 460 Haley v. State (63 Ala. 83) 633, 635 , State V. (52 Vt. 476) 81, 777, 820 Halford, Reg. u. (U Cox C. C. 88) 582 Halifax, State v. (4 Dev. 345) 1012, 1019 Ilalkera v. Cora'th (2 Va. Cas. 4) 582, 592 Hall, Com'th u. (15 Mass. 240) 1012 , Com'th V. (97 Mass. 570) 460, 467 — — ('. People (43 Mich. 417) 87, 254, 255 V. People (90 N. Y. 498) 391 , People V. (6 Parker C. C. 642) 933 , Reg. K. (1 Fost. & F. 33) 285,291 1). State (9 Fla. 203) 553 V. State (8 Ind. 439) 582 V. State (20 Ohio, 7) 642, 651 , State V. (2 Fost. N. H. 384) 1012 , State V. (5 S. C. 120) 680 , State V. (27 Texas, 333) 164, 165 , U. S. V. (4 Cranch C. C. 229) 460, 466 Hallenbeck, People v. (2 Abb. N. Cas. 66) 619, 626 Haller, In re (3 Abb. N. Cas. 65) Hallett V. State (29 Ohio, 168) Hailey v. State (43 Ind. 509) Halsey v. State (1 Southard, 324) Ham V. State (* Texas Ap. 645) Hambden, Rex v. (Trem. P. C. 307) 1045, 1082, 10S6, 1087, 1090 Hambleton, State v. (22 Misso. 452) 699, 710 V. Yeere (2 Saund. 169) Hamblin, State v. (4 S. C. 1) Hamilton v. Lomax (26 Barb. 615) — ^ V. Lyman (9 Mass. 14) i: Reg. (2 Cox C. C. 11 ; 9 Q, B. 271) 46,420,425 , Reg. u. (1 Cox C. C. 244) 420, 425 , Rex V. (7 Car. & P. 448) 285 , Rex V. (Fost. 1) 987 V. State (16 Fla. 288) 420 V. State (25 Ind. 426) 489, 494 V. State (34 Ind. 280) 1004 118 421) 415 460 987, 303 582, 592 294 93 1075 Section Hamilton v. State (36 Ind. 280) 205 «. State (75 Ind. 586) 489, 503 V. State (11 Texas Ap. 116) 87, 254 , State w. (1 Houst. Crim. 281) 699, 720 , State V. (65 Misso. 667) 871, 876 Hamilton Manuf. Co., Commonwealth V. (120 Mass. 383) 579 Hamlin v. Mack (33 Mich. 103) 172 , State V. (47 Conn. 95) 1038 Hammond, State v. (80 Ind. 80) 977, 980 , U. S. V. (2 Woods, 197) 1036, 1038 Hamp, Reg. v. (6 Cox C. C. 167) 285, 312 Hampden, Rex v. (9 Howell St. Tr. 1054) 942 , Rex V. (Trem. P. C. 37) 941 Hampson, Rex v. (Trem. P. C. 191) 442 Hampton v. State (8 Humph. 69) 582, 916 Hancock, Reg. v. (14 Cox C. C. 119) 118, 582, 916 Hand, State v. (1 Eng. 165) 420 Haney v. State (.34 Ark. 263) 520, 545 V. State (5 Wis. 529) 206, 558 , State V. (1 Hawks, 460) 619 Hankins, Reg. v. (2 Car. & K. 823) 871 Hanks, State y. (66 N. C. 612) 992 Hanley, Commonwealth!;. (121 Mass. 377) 642, 644 , State V. (47 Vt. 290) 858 Hanna i,. People (19 Mich. 316) 206, 558 Hannon, Keg. v. (2 Moody, 77 ; 9 Car. &P. 11) 460, 478 Hanrahan v. People (91 111. 142) 206, 558 V. State (57 Ind. .527) 489, 504 Hansford v. State (54 Ga. 55) 88, 206 Hsmsill, Reg. ... (3 Cox C. C. 597) 118 Hanson, Reg. v. (2 Car. & K. 912 ; 4 Cox C. C. 138) 206, 213 , Rex V. (31 Howell St. Tr. 1) 120, 285, 308 875 489, 506 1038 1046 , Rexu. (Trem P. C. 143) Hany v. State (4 Eng. 193) Hardin v. State (22 Ind 347) V. State (12 Texas Ap. 186) Harding's Case (1 Greenl. 22) 442, 444, 445 HaMing V. State (54 Ind. 359) 460 Hardwick, State v. (2 Misso. 226) 997, 998 Hardy w. Com'th (17 Grat. 592) 933 , Commonwealth v. (2 Mass. 303) 1079 , Reg. V. (Law Rep. 1 C. C. 278 ; 11 Cox C. C. 656) 1012, 1021 , Rex V. (24 Howell St. Tr. 199; 2 Chit. Crim. Law, 79; 4 Went. PI. 14) 987 , State V. (47 N. H. 538) 206, 392 Hare, United States v. (2 Wheeler Crim. Cas. 283) 885 Harkin, State v. (7 Nev. 377) 520 Harkin.s, Com'th v. (128 Mass. 79) 420 Harley, Com'th v. (7 Met. 462) 420 , Commonwealth v. (7 Met. 506) 285 , Reg. V. (1 Car. & K. 89) 885 Harlow v. Com'th (11 Bush, 610) 777, 782 Harman, Reg. v. (2 Ld. Raym. 1104) 403, 411 619 HAR INDEX TO THE CASES CITED. HAY 777, 871, 460, 802 876 333 475 Section Harney, Commonwealth v. (10 Met. 422) HI, 180, 194 Harper, State v. (69 Misso. 425) 206, 212, 558 Harries, United States v. (2 Bond, 31 1 ) 973 Harriman, Com'th ti. (127 Mass. 287) 484 , State V. (75 Maine, 562) 699, 711 , U. S. c;. (1 Huglies, 525) 206,220 Harrington, Com'th v. (130 Mass. 35) 91 V. State (54 Missis. 490) 460, 474, 475 Harris, Com'th v. (13 Allen, 534) 672, 678 , Com'th V. (8 Gray, 470) 1043 , Com'th V. (101 Mass. 29) 777, 833 , Keg. V. (4 Cox C. C. 140) 232, 234 , Reg. u. (11 Cox C. C. 659) , Rex V. (7 Car. & P. 253) , Rex u. (1 Leach, 135) , Rex V. (1 Moody, 393) , Rex V. (4 T. R. 202 ; 2 Leach, 549) 513 , Rex V. (Trem. P. C. 65) 633, 940 V. State (31 Ala. 362) 489 u. State (50 Ala. 127) 90,642,656 V. State (60 Ala. 50) 582, 600 V. State (5+ Ind. 2) 205 V. State (1 Texas Ap. 74) 1090 I'. State (2 Texas Ap. 102) V. State (9 Texas Ap. 308) , State V. (27 Iowa, 429) , State V. (38 Iowa, 242) , State i: (5 Ire. 287) , State V. (12 Nev. 414) 70 , State V. (2 Sneed, Tenn. 224 Harrison, Rex v. (3 Howell St. 'fr. 1369) 325, 326 ■ , Rex V. (12 Howell St. Tr. 834) 520 V. State (36 Ala. 248) 460 V. State (2 Coldw. 232) 109, 206, 558 V. State (3 Texas Ap. 558) 1064 Harrow, Rex i: (4 Bur. 2090) 1012, 1017 Harry, Rex v. (4 Went. PI. 54) 721 Harsant, Rex v. (Trem. P. C. 242) 997, 999 Hart r. Aldridge (Cowp. 54) 303 , Com'th V. (11 Cnsh. 130) 642, 655 , Com'th V. (10 Gray, 465) 777,782 , Com'th V. (6 J. J. Mar. 119) 378 , Rex V. (30 Howell St. Tr. 1131) 619, 77, 582 489, 502 7-77, 820 285, 312 460, 464 , 520, 1041 642 622 Car. 460, 468 582 642 777, 828 Rex V. (1 Moody, 486 & P. 652) V. State (55 Ind. 599) ■ V. State (2 Texas Ap. 39) , State V. (34 Maine, 36) Hartley, Hex v. (Russ. & Ry. 139) 403 Hartman, State v. (41 Texas, 562) 206, 212 Hartmann v. Com'th (5 Barr, 60) 285 Hartshorn, Reg. v. (6 Cox C. C. 395) 460 V. State (29 Ohio State, 635) 116, 254, 256 Hartnng, People v. (4 Parker C. C. 256) 116, 520, 533, 539 Hartwell, Commonwealth v. (128 Mass. 415) 520,530 , United States v. (3 Clif. 221) 1051 620 871 403 303 394 Section HaiTey, Com'th w. (Ill Mass. 420) 642, 644 , Reg. V. (8 Cox C. C. 99) 871 , Reg. V. (11 Cox C. C. 662) 342 , Rex V. (Trem. P. C. 66) 633, 940 , Rex V. (Trem. P. C. 197) 1012, 1015 , State V. (3 N. H. 65) 442 Harwood v. Siphers (70 Maine, 464) 77 Hascall, State v. (6 N. H. 352) Haskell, State «. (33 Maine, 127) Haskins v. Royster (70 N. C. 601) Haslam, Rex v. (1 Den. C. C. 73) HasHp V. State (4 Hayw. 273) 206, 742, 748 V. Stale (10 Neb. 590) 4G0, 464 Hastings, Commonwealth v. (9 Met. 259) 206, 838, 839 Haswell, Rex v. (Russ. & Ry. 458) 890, 892 Hatch V. State (40 Ala. 718) 1068 V. State (8 Texas Ap. 416) 1078 V. State (10 Texas Ap. 515) 890 Hatchard, Rex v. (32 Howell St. Tr. 674) 619 Hatcher, Com'th v. (6 Grat. 667) 642, 650 Hatfield, State v. (72 Misso. 518) 58, 904, 905 Hathaway, Com'th v. (13 Mass. 299) 1062 , Reg. ^. (14 Howell St. Tr. 639) 633, 635 , Reg. V. (14 Howell St. Tr. 690) 929, 1068 Hattabough, State v. (66 Ind. 223) 205 Hatton, Com'th d. (15 B. Monr. 537) 642 Haughey, Com'th r. (3 Met. Ky. 223) 420 Hawkes, Reg. v. (2 Moody, 60) 460, 472 Hawkins, Commonwealth ;;. (1 1 Bush, 603) 206, 212, 859 D. Eckles (2B. &P. 359) 172 , Rex V. (1 Den. C. C. 584) 403 , Rex V. (Peake, 8) 871 , Rex V. (Trem. P. C. 167) 874, 968 II. State (54 Ga. 653) 680 , State V. (5 Eng. 71) 1038, 1058 Hawks, Commonwealth v. (13 Alien, 550) 777, 1005 Hawley v. Com'th (1 Mat. 847) 116 V. Com'th (75 Va. 847) Haws, State v. (41 Texas, 161) Hawthorn v. State (56 Md. 530) Hayden, State v. (45 Iowa, 11) , State I'. (15 N. H. 355) Hayen v. People (3 Parker C. C. 175) 1089, 1090 Hayes, Rex v. (Trem. P. C. 5) 941 V. People (5 Parker C. C. 325) 43, 58, 881 , State V. (24 Misso. 358) 890, 893 Hayne, State v. (4 S. C. 403) 997, 1001 Ha'ynes v. Com'th (28 Grat. 942) 1078 , Com'th V. (2 Gray, 72) 90, 777, 802 , Rex V. (4 M. & S. 214) 272 Hays V. State (40 Md. 633) V. State (77 Ind. 450) , State V. (67 Misso. 692) Haystead, Reg. o. (7 U. C. Q, 520, 539 164, 165 460 87, 254 460, 466 138, 141 205 206, 212 B. 9) 984 Hayton, Rex v. (Trem. P. C. 191) 442 HEP INDEX TO THE CASES CITED. HIN Section Hay ward, Commonwealth u. (10 Mass. 34) 460, 465, 474 , State V. (1 Nott & McC. 546) 871 HazeltoTi, Eeg. v. (Law Rep. 2 C. C. 134; 13 CoxC. C. 1) 420 Hazle, State v. (20 Ark. 156) 90 777, 802 Heane, Reg. v. (4 B. & S. 947) 1033 Hearn v. State (34 Ark. 550) 859 Hearsey, Com' th !). (1 Mass. 137) 272 Heath, Reg. t-. (2 Moody, 33) 582, 584, 605 , Rex V. (18 Howell St. Tr. 1) 871, 1065 V. State (36 Ala. 273) , State V. (70 Misso. 565) Heaton, State v. (77 N. C. 505) Hebel, State v. (72 Ind. 361) Hedges, Rex r. (28 Howell St. Tr. 1315) 285^ Heed, People v. (1 Idaho Ter. y. s. 531) Heflin, State i;. (8 Humph. 84) Heilman v. Martin (2 Ark. 158) Hein, State v. (50 Misso. 362) Heldt, State v. (41 Texas, 220) Helfrich b. Commonwealth (9 Casey, Pa. 68) 148, 149 Helfrick V. Com'th (29 Grat. 844) 642, 658 Helgen, State v. (1 Speers, 310) 85, 663, 838, 842 403 132 409 403, ,312 460 925 1034 680, 691 642, 651 664 148 875 997 582 Helm, State v. (6 Misso. 263) Hembree u. State (52 Ga. 242) 871, Henback v. State (53 Ala. 523) Henderson, Reg. u. (11 Cox C. C. 593) , Reg. V. (2 Moody, 192 ; Car. & M. 328) 420 V. State (59 Ala. 89) 489 V. State (63 Ala. 193) 633, 635, 859 V. State (^O Ind. 234) 997, 1001 V. State (60 Ind. 296) 642 V. State (1 Texas Ap. 432) 403 , State I!. (15 Misso. 486) 838,840 , State V. (1 Rich. 179) 619 Hendric, U. S. v. (2 Saw. 476) 247, 249 Hendricks v. Com'th (1 Mat. 934) 437 Henfield's Case (Whart. St. Tr. 49) 760 Henning, State v. (33 Ind. 189) 247 , U. S. V. (4 Cranch C. C. 645) 569 Henry, Com'th w. (10 Harris, Pa. 253) 420 V. State (33 Ahi. 389) 520 V. State (35 Ohio State, 128) 80, 460, 471 , State V. (1 Lea, 720) 403, 411 Hensey, Rex v. (19 Howell St. Tr. 1341) 987 Henshall's Case (2 Lewin, 135) 109, 206, 214 Henshaw, Eeg. v. (Leigh & C. 444 ; 9 Cox C. C. 472 ) 111, 420, 434 Hensler, Reg. u. (1 1 Cox C. C. 570) 420 Hensley v. State (1 Eng. 252) 642 Henson, Reg. v. (Dears. 24) 777, 810, 815 Kenwood, Reg. «. (11 Cox C. C. 526) 582 Heppingstall, Reg. v., (8 Cox C. C. Ill) 206,213 Section Herine v. Com'th (13 Bush, 295) 642 Herrick, Com'th v. (6 Cush. 465) 642 Hersey, Com'th v. (2 Allen, 173) 520, 533 Heselton, State v. (67 Maine, 598) 1038 Hess V. State (73 Ind. 537) 460 Hevey, Rex v. (1 Leach, 232) 285 Hevice, Re.. (82 N. C. 607) 420 , U, S. V. (5 Wheat. 412) 89, 520, 538 622 Section Holoman v. State (2 Texas Ap. 610) 43, 80, 672, 673 Holroyd, Reg. v. (2 Moody & R. 339) 1012, 1021 Holt, Rex V. (22 Howell St. Tr. 1190) 619, 621 , Rex V. (2 Leach, 593 ; 5 T. R. 436) 619, 621 V. State (38 Ga. 187) 929 Homer, Com'th v. (5 Met. 555) 890, 892 , State V. (40 Maine, 438) 777, 782, 784 Hone, Rex v. (9 Howell St. Tr. 571) 987 Honeyman, Respublica v. (2 Dall. 228) 520 Honig, State v. (78 Misso. 249) 916 Hood, People v. (6 Cal. 236) 180 , Rex V. (1 Moody, 281) 206, 838, 839 V. State (44 Ala. 81 ) 871 Hooker, State v. (17 Vt. 658) 206,838, 839 Hooper, Com'th v. (104 Mass. 549) 420 , Commonwealth n. (Thacher Crim. Cas. 400) 378 V. State (8 Humph. 93) 460, 466 V. State (56 Ind. 153) 642 , State V. (I Honst. Crim. 17) 577 Hoopes, Rex v. (Trem. P. C. 558) 1082 Hoover v. State (59 Ala. 57) 148 , State V. (31 Ark. 676) 699, 723 Hope V. Commonwealth (9 Met. 134) 582 , States. (15 Ind. 474) 489,502 Hopkins v. Com'th (3 Met. 460) 96 D. People (12 Wend. 76) 916 , Reg. V. (Car. & M. 254) 944 , State V. (5 R. L 53) 777, 820 Hoppe, State f. (39 Iowa, 468) 582, 603 Hopper V. State (54 Ga. 389) 148, 944, 949 , State ». (71 Misso. 425) 115,520, 539 Horan v. State (7 Texas Ap. 183) 838, 840 Horn, State v. (19 Ark. 578) 365 Home, Reg. v. (4 Cox C. C. 263) 890, 898 , Rex V. (Cowp. 672; 20 Howell St. Tr. 651) 619,621,1079 V. State (1 Kan. 42) 520 Horsley, Rex v. (Trem. P. C. 4) 987 Horton, Com'th ii. (2 Gray, 69) 672, 676 , Com'th V. (9 Pick. 206) 1051, 1052 V. State (32 Texas, 79) 460, 464 Horwell, Rex v. ( 1 Moody, 405 ; 6 Car. & P. 148) 460, 468 Hoskins v. State (27 Ind. 470) 582 Hotine, Reg. u: (9 Cox C. C. 146) 922 Houck, State v. (73 Ind. 37) 777 Houghton, Com'th v. (8 Mass. 107) 460, 467 House, State v. (55 Iowa, 466) 420 Housh V. People (75 III. 487) 63 Houston V. State (13 Texas Ap. 595) 170 Howard v. State (34 Ark. 433) 58, 520, 535 17. State (64 Ind. 516) 58,489,494 V. State (67 Ind. 401) 205 , State V. (6 Conn. 475) 890, 891 , State V. (63 Ind. 502) 58, 871, 876 , State w. (67 N. C. 24) 663,671 , United States v. (7 Bis. 56) 864 , U. S. t'. (3 Sumner, 12) 206, 212, 223 Howarth, Reg. w. (11 Cox C. C. 588) 420 HUN INDEX TO THE CASES CITED. IVY Section Howarth, Reg. v. (33 U. C. Q. B. 537) 663, 665 Howe, Com'th v. (13 Gray, 26) 777, 820 , Com'th V. (132 Mass. 250) 58, 420 Howell, Eeg. v. (9 Car. & P. 437) 699, 727 , Reg. V. (1 Cox C. C. 190) 254 , Reg. V. (4 Fost. & F. 160) 285, 294 , State V. (1 Ga. Dec. 158) 206, 558 Howerton, State v. (59 Misso. 91) 933, 936 Howley, Rex u. (28 Howell St. Tr. 1183) 987 Hoxey, Commonwealth v. (16 Mass. 385) 365, 368, 393 Hoye, Com'th v. (9 Gray, 292) 777, 820 , Com'th V. (U Gray, 462) 642, 655 Hoyer, Commonwealth v. (125 Mass. 209) 642, 653 Hoym, People v. (20 How. Pr. 76) 663, 671 Hubbard, Com'th v. (24 Pick. 98) 174 Hiibbs, State v. (58 Ind, 415) 205 Hube, Rex w. (5 T. R 542) 365 Huber v. State (25 Ind. 175) 777, 820 Hucks, Rex u. (1 Stark. 521) 871 Hudgens v. Com'th (2 Duv. 239) 890, 891 Hudson, Reg. o. (Bell, 263 ; 8 Cox C. C. 305) 285, 291 V. State (61 Ala. 333) 180 V. State (1 Blackf, 317) 21 Huff, State y. (II Nev. 17) 520 , State V. (12 Nev. 140) 520 Huffman, Pennsylvania v. (Addison, 140) 460,471 Huggins, Rex v. (3 Car. & P. 414) 520 0. State (41 Ala. 393) 916 , State V. (12 Rich. 402) 520 Hughes, Reg. v. ( 3eU C. C. 242 ; 8 Cox C C. 278) 582, 916 , Reg. !;. (1 Car. & K. 519) 871,876 , Heg. u. (1 Fost. & F. 726) 235 , Rex V. (4 Car. & P. 373) 929 ■ , Rex V. ( 1 Moody, 370) 403 V. Ross (1 Stew. & P. 258) 93 u. State (I Eng. 131) 890,893 V. State (55 Ind. 39) 205 , State V. (76 Misso. 323) 582, 614 , State V. (86 N. C. 662) 254 , State V. (22 W. Va. 743) 1078 Hulbert, Com'th v. (12 Met. 446) 420 Humphreys u. State (17 Fla. 381) 384, 388, 871, 876 Humphries, Com'th v. (7 Mass. 242) 933 Hunkins, State v. (43 N. H. 557) 482, 483 Hunn, State v. (34 Ark. 321) 489, 506 Hunnicut, State y. (34 Ark. 562) 403 Hunt, Com'th v. (1 Met. Ill) 285,305,308 , Com'th .). (4 Pick. 252) 206 904, 910 V. Middlesworth (44 Mich. 448) 93 - — V. People (3 Parker C. C.569) 138, 143, , Reg. V. (3 Cox C. C. 215) , Rex V. (3 B. & Aid. 566) V. State (55 Ala. 138) y State (9 Texas Ap. 404) Hunter's Case (1 Lewin, 3) 520, 528 942 285, 942 582, 592 206, 216 180. 190 Section Hunter v. Bumsville Turnpike (56 Ind. 213) 984 V. Com'th (29 Smith, Pa. 503) 206, 558 , Reg. V. (10 Cox C. C. 642) 420 , Rex V. (2 Leach, 624) 460, 471 , State V. (8 Blackf. 212) 680, 690 Huntley, Reg. v. (Bell C. C. 238 ; 8 CoxC. C. 260) 582,916 Huntly, State v. (3 Ire. 418) 58, 262 Huntzinger v. Com'th (1 Out. Pa. 336) 285 Hurley, State v. (71 Maine, 354) 54, 58, 180 Hurrell, Rex v. (Ryan & Moody N. P. 296) 74, 582 Hurst, State v. (11 W. "Va. 54) 420 Hurt V. State (55 Ala. 214) 254 Hussey, Com'th u. (HI Mass. 432) 403, 411 Hutchins v. Com'th (2 Va. Cas. 331) 564 Hutchinson, Commonwealth v. (6 Allen, 595) 642, 646 , Rex V. (Trem. P. C. 164) 874 , State !'. (36 Maine, 261) 148 , State 0. (26 Texas, 111) 176 Hutchison v. Com'th (1 Norris,Pa. 472) 403 , Com'th D. (114 Mass. 325) 420 Huxley, Reg. o. (Car. & M. 596) 933, 937 Hyde, State v. (27 Minn. 153) 642 Hyman, Rex v. (2 Leach, 925) 916 Hynde, Rex v. (Trem. P. C. 239) 236 Hynes, Reg. v. (13 U. C. Q. B. 194) 403, 411 Ihrig V. State (40 Ind. 422) 642, 652 Imsand, U. S. u. (1 "Woods, 581) 973 Ingham, Beg. v. (5 B. & S. 257) 520 Ingram, State v. (16 Kan. 14) 582 Inman v. State (54 Ga. 219) 582, 588 Insall V. State (14 Texas Ap. 145) 609 Intoxicating Liquors, Com'th v. (4 Allen, 593) 642, 645 , Com'th V. (6 Allen, 599) 642, 645 , Com'th V. (13 Allen, 52) 642, 645 , Com'th V. (97 Mass. 334) 642, 645 , Com'th V. (103 Mass. 448) 642, 645 , Com'th V. (105 Mass. 181) 642, 645 , Com'th w. (108 Mass. 19) 642,645 , Com'th K. (109 Mass. 371) 642,645 , Com'th V. (110 Mass. 182) 642, 645 , Com'th u. ( 1 1 Mass. 41 6 ) 642 , Com'th V. (110 Mass. 499) 642 , Com'th V. (113 Mass. 13) 642, 645 , Com'th !). (116 Mass. 27) 642,645 , Com'th I'. (122 Mass. 8) 642, 645 Irvin V. State (19 Fla. 872) 1064 Irvine, State v. (3 Heisk. 155) 642, 654 Irving, Reg. v. (12 Q. B. 429) 984 Isaacs, Reg. v. (Leigh & C. 220 ; 9 Cox C. C. 228) 138, 141 Iseley v. State (8 Blackf. 403) 489, 506 Ivens, Rex o. (7 Car. & P. 213) 567 Ives, State v. (13 Ire. 338) 916 Ivey V. State (12 Ala. 276) 75, 378, 379 V. State (61 Ala. 58) 859 Ivy, Eex v. (Trem. P. C. 135) 460 623 JEN INDEX TO THE CASES CITED. JOH Sectiok J. C, Eex V. (Trem. P. C. 227) 333 Jackalow, U. S. r. (1 Black, 484) 933 Jacks, State v. (54 Ind. 412) 642 Jackson, Commonwealth v. (1 Grant, Pa. 262) 58,442 , Com'th V. (15 Gray, 187) 138, 143 u. People (2 Scam. 231) 881 , People V. (8 Barb. 637) 582, 601, 602 , People V. (3 Hill, N. Y. 92) 138, 140, 142, 143, 520, 528 , People V. (3 Parker C. 0. 391) 904, 905 , Rex V. (18 Howell St. Tr. 1070) 520 , Rex V. (25 Howell St. Tr. 783) 987 , State V. (4 Blackf. 49) 642, 652 , State V. (39 Conn. 22) 420, 425 , State u. (12 Ire. 329) 699, 702 , State V. (39 Maine, 291) 148 , State V. (73 Maine, 91) 54, 58, 247, 248 , State V. (36 Ohio State, 281 ) 871 , United States ;;. (4 Cranch C. C. 483) 90, 777, 800 , United States v. (3 Saw. 59) 415 Jacobs, Com'th v. (9 Allen, 274) 106, 852 V. State (61 Ala. 448) 871, 874 , State V. (38 Misso. 379) 998 Jacobson, Reg. v. (14 Cox C. C. 522) 957 V. State (55 Ala. 151) 489, 506 Jaeger, State v. (63 Misso. 403) 642 James, Com'th v. (1 Pick. 375) , Reg. V. (1 Car. & K. 530) , Reg. D. (12 Cox C. C. 127) , Reg. V. (2 Den. C. C. 1 ; 3 Car, &K. 167; 14 Jur. 940) V. State (45 Missis. 572 ; 2 Mor- ris State Cas. 1741) Jane v. Com'th (3 Met. Ky. 18) J' Anson v. Stuart (1 T. R. 748) Jaques, State v. (68 Misso. 260) Jarman, Reg. v. (14 Cox C. C. HI) 58 111, 206, 212, 226 420 733 1069 520 781 642 111, 420 263 205 341 Jarrald, Reg. v. (Leigh & C. 301 ; 9 Cox C. C. 307) Jarrell v. State (58 Ind. 293) Jarvis, Reg. o. (Dears. 552 ; 7 Cox C. C. 53) Jasper, State v. (4 Dev. 323) 58, 364, 365, 367 Jay V. State (69 Ind. 158) 985 Jaynes, State v. (78 N. C. 504) 180, 181 Jefferys, Rex y. (18 Howell St. Tr. 1193) 620 Jeffrey, State v. (33 Ark. 136) 489,663, 670 Jeffreys, State v. (3 Murph. 480) 44, 520 V. Commonwealth (12 Allen, 145) 58, 420, 1090 Jeffries, Com'th v. (7 Allen, 548) 420 Jenkins v. State (50 Ga. 258) 582, 588 V. State (7 Texas Ap. 146) 699, 723 , State V. (2 Tyler, 377) 582 Jenks, Rex v. (2 Leach, 774) 254 V. State (39 Ind. 1) 1078 624 Section Jennerson, State v. (14 Kan. 133) 992 Jennings v. Commonwealth (105 Mass. 586) 254, 614, 1068 V. Com'th (17 Pick. 80) 777, 782 , Com'th V. (121 Mass. 47) 881, 883 , Reg. V. (Dears. & B. 447 ; 7 Cox C. C. 397) 582, 584 V. State (9 Misso. 862) 206 V. State (7 Texas Ap. 350) 520 Jennison, U. S. u. (1 McCrai-y, 226) 867 Jenson, Rex v. ( 1 Moody, 434) 403 Jericho, State v. (40 Vt. 121) 1012, 1018 Jernigan, State v. (3 Murph. 12) 582 Jerrett, Reg. v. (22 U. C. Q. B. 499) 933 Jesse, State v. (2 Dev. & Bat. 297) 904, 905 , State V. (3 Dev. & Bat. 98) 904, 905 Jessup, Commonwealth v. (13 Smith, Pa. 34) 642, 652 Jett V. Com'th (18 Grat. 933) 460, 466, 479 Jillard v. Com'th (2 Casey, Pa. 169) 642 Jim V. State (8 Humph. 603) 420 , State V. (3 Murph. 3) 254, 255 Joaquin, State v. (43 Iowa, 131 ) 420, 428 John, Reg. v. (13 Cox C. C. 100) 420, 429, 977 980 , Rex V. (7 Car. &P. 324) ' 584 , State V. (5 Jones, N. C. 163) 933 Johns, Com'th v. (6 Gray, 274) 871 Johnson v. Browning (6 Mod. 216) 93 V. Com'th (5 Bush, 430) 403, 407 V. Com'th (24 Grat. 555) 582, 602 V. Commonwealth (29 Grat. 796) 58, 87, 254, 582, 585, 586, 602, 603, 1078 V. Commonwealth (12 Harris, Pa. 386) 520, 523 , Com'th V. (10 Allen, 196) 881 , Commonwealth v. (8 Mass. 87) 1034 V. People (22 111. 314) 285, 290, 291 V. People (55 N. Y. 512) 91 , People V. (2 Wheeler Crim. Cas. 361) 520 , Reg. V. (Dears. & B. 340 ; 7 Cox C. C. 379) 582 , Reg. V. (Leigh & C. 489 ; 10 Cox C. C. 13) 111, 582, 614 , Reg. V. (Leigh & C. 632 ; 10 Cox C. C. 114) 206, 904, 909 , Rex V. (6 East, 583) 1034 , Rex V. (2 Leach, 1103) 403 , Rex V. (3 M. & S. 539) 403, 582, 601, 602 , Eex V. (Trem. P. C. 119) V. State (46 Ala. 212) V. State (50 Ala. 456) V. State (59 Ala. 37) V. State (61 Ala. 9) V. State (32 Ark. 181) V. State (36 Ark. 242) I'. State (37 Ark. 98) V. State (2 Dulcher, 313 V. State (65 Ind. 204) V. State (68 Ind. 43) V. State (74 Ind. 197) 415, 1041, 1054 871 904, 908 582 992 582 420 642 ) 285, 300 180, 185 582, 600, 992 642, 652 JOB INDEX TO THE CASES CITED. KEL Section Johnson v. State (4 Sneed, 614) 489, 506 V. State (41 Texas, 65) 420, 430 V. State (1 Texas Ap. 130) 206, 558 V. State (1 Texas Ap. 146) 254 V. State (4 Texas Ap. 63) 777, 794 V. State (9 Texas Ap. 249) 460 , State V. (69 Ind. 85) 148 ■ , State y. (19 Iowa, 230) 180,194 , Stale V. (26 Iowa, 407) 460 , State y. (12 Minn. 476) 881 , State V. (67 N. 0. 55) 904, 905 , United States v. (2 Saw. 482) 247, 249 Johnston v. Com'th (10 Harris, Pa. 102) 663 , Reg. <.. (5 Cox C. C. 133) 460 , Reg. t'. (2 Moody, 254) 420, 42ft V. State (Mart. & Yerg. 129) 489, 506 V. State (7 Sm. & M. 58) 489, 490 Joice V. State (53 Ga. 50| 904, 905 Jole, Rex v. (Trem. P. C. 138) 875 Jolly, State w. (3 Dev. &Bat. 110) 148, 151, 154 Jones V. Commonwealth (13 Bush, 356) 582 V. Commonwealth (15 Grav, 193) 177 V. Commonwealth (31 Grat. 830 V. Com'th (31 Grat. 836) , Com'th V. (7 Gray, 415) V. Davers (Cro. Eliz. 496) , Reg. V. (1 Car. & K. 243) , Reg. V. (2 Car. & K. 236) , Reg. 17. (9 Car. & P. 761) , Reg. u. (6 Cox C. C. 467) , Reg. I.. ( 1 1 Cox C. C. 393) , Reg. V. (1 Den. C. C. 101 j 2 Car. & K. 165) 582 • , Reg. V. (1 Den. C. C. 218; 2 Car. & K. 398 ; 2 Cox C. C. 434) , Reg. 0. (4 Fost. & F. 25) , Rex V. (31 Howell St. Tr. 251) 285, 642, 696 300 655 619 520 885 337, 339 420 580 , Rex V. (1 Leach, 174) , Rex V. (1 Leach, .537) V. State (50 Ala. 161) V. State (60 Ala. 99) V. State (63 Ala. 27) V. State (37 Ga. 51) V. State (35 Ind. 122) V. State (50 Ind. 473) V. State (59 Ind. 229) V. State (60 Ind. 241) . K. State (11 Sm. & M. 315) , State V. (4 Halst. 357) , State V. (10 Iowa, 206) , State y. (13 Iowa, 269) , State y. (9 Ire. 38) , State V. (2 Lea, 716) , State V. (68 Misso. 197) , State y. (33 Vt. 443) ( y. U. S. (5 Cranch C. C. 647) V. Winchester (6 N. H. 497) Jordan y. Hovey (72 Misso. 574) V. State (60 Ga. 656) , State V. (39 Iowa, 387) 58, 777, 820, 822 , State V. (19 Misso. 212) 206, 558 40 977 760 680, 687 577 87, 254 460 838 77, 263 206, 558 520 420 582 205 206, 558 460 87, 254 285, 291 243 680, 687 484, 485 699, 729 420 1034 294 1079 Section Jordan, State v. (75 K C. 27) 87, 254, 259 Joseph V. State (42 Ind. 370) 777, 820 Josephine v. State (39 Misso. 613) 520, 533 Josslyn V. Commonwealth (6 Met. 236) 2.54 Jourdan, State v. (32 Ark. 203) 582 Joy V. State (14 Ind. 139) 20 Joyner, State v. (81 N. C. 534) 642 Judd, Com'th y. (2 Mass. 329) 285, 311 , People y. (10 Cal. 313) 520 Judge y. State (58 Ala. 402) 1078 Judges of Elections, United States y. (1 Hughes, 493) 392 Judy, State v. (60 Ind. 138) 263 Juli'en, State v. (48 Iowa, 445) 484, 485 Jumpertz v. People (21 111. 375) 1068 Jupitzy. People (34 111. 516) 916 .Justice V. State (17 Ind. 56) 77 , State y. (2 Dev. 199) 272 Kaas, Commonwealth v. (3 Brews. 422) 116 Kahlmeyer, Commonwealth y. (124 Mass. 322) 777, 820 Kahn y. State (58 Ind. 168) 460, 464, 474 Kain y. State (8 Ohio State, 306) 520 Kaler, State v. (56 Maine, 88) 642, 645 Kambieskey v. State (26 Ind. 225) 1038 Kannon y. State (10 Lea, 386) 520 Karn, State y. (16 La. An. 183) 642 Kaster, State v. (35 Iowa, 221) 90, 777, 810, 812 Kaufman v. State (49 Ind. 248) 916 , State V. (59 Iowa, 273) 489, 503 Kavanaugh v. State (41 Ala. 399) 890, 895 Keach, State v. (40 "Vt. 113) 285 Kealey, Reg. v. (2 Den. C. C. 68 ; 5 Cox C. C. 193) 111, 420, 434 Keane y. Boycott (2 H. Bl. 511) 303 Kearney, Rex u. (28 Howell St. Tr. 683) 987 y. State (48 Md. 16) 601 Kearns, Com'th v. (1 Va. Cas. 109) 460, 470 Kearny, Ex parte (55 Cal. 212) 859 Keat, Reg. y. (2 Moody, 24) 871, 876 Keefe, Commonwealth v. (7 Gray, 332) 642 V. People (40 N. Y. 348) 53, 58, 520, 1069, 1070 , Rex V. (Jebb, 6) 420, 426, 868 Keel, State y. (54 Misso. 182) 871, 876 Keeller v. State (4 Texas Ap. 527) 403 Keen y. Reg. (2 Cox C. C. 341 ) 1068 Keenan, People y. (13 Cal. 581) 1078 , Rex y. (28 Howell St. Tr. 1239) 987 Kcighley, Reg. y. (Dears. & B. 145 ; 7 Cox C. C. 217) 420, 425 Keiser v. State (78 Ind. 430) 642 Keithler y. State (10 Sm. & M. 192) 56 Kelleher, Reg. y. (14 Cox C. C. 48) 420 Keller y. State (51 Ind. Ill) 420 y. State (11 Md. 525) 642, 644 Kellogg, Com'th y. (7 Cush. 473) 285, 286 Kelly, Com'th v. (12 Gray, 175) 777, 820 , People V. (24 N. Y. 74) 321 , Reg. V. (Jebb, 299) 520, 526 625 KIN INDEX TO THE CASES CITED. KYL Section Kelly, State w. (12 R.I. 535) 374 , United States u. (25 Law Re- porter, Bost. 657) 961 Kempf, State v. (W Misso. Ap. 88) 699 Kendall, Commonwealth v. (12 Gush. 414) 83, 642, 655 Kennard, Commonwealth v. (8 Pick. 133) 206, 838, 839 Kennedy, Commonwealth u. (15 B. Monr". 531) 395,397 V. People (39 N. Y. 245) 520 , Rex I). (26 Howell St. Tr. 354) 987 V. State (62 Ind. 136) 520, 540 V. State (34 Ohio State, 310) 420 , Territory v. (3 Mont. Ter. 520) 1075 Kennett, Rex v. (5 Car. & P. 282) 680, 690 Kennon, State v. (21 Misso. 262) 672, 677 Kenrick, Reg. v. (1 Cox C. C. 146) 235 , Reg. D. (5 Q. B. 49) 285, 290 Kent, Commonwealth v. (6 Met. 221) 342 , Rex V. (13 East, 220) 1012, 1023 , RexK. (2 M. & S. 513) 1012,1046 Kentucky v. Ohio (24 How. U. S. 66) Kenyon v. People (26 N. Y. 203) , People !,•. (5 Parker C. C. 254) Kerkin v. Jenkins (9 Cox C. C. 311) 575 949 944, 949 254, 261 Kern v. State (7 Ohio State, 411) 642, 647 Kerr v. State (36 Ohio State, 614) 486 Kerrigan, Reg. v. (Leigh & C. 383; 9 Cox C. C. 441 ) , 420, 425 Kerrison, Rex v. (3 M. & S. 526) 1012, 1023 Kershaw's Case (1 Lewin, 218) 929 Kesslcr u. State (50 Ind. 229) 977, 980 Kesslering, State v. (12 Misso. 565) 489, 502 Ketchingham v. State (6 Wis. 426) 148 Keyn, Reg. u. (13 Cox C. C. 403) 89, 520, 538 Kidd, Rex v. (14 Howell St. Tr. 123) 89, 520, 538 , Rex V. (14 Howell St. Tr. 147) 879 Kidder v. State (58 Ind. 68) 364, 365, 371 Kiene v. Ruff (1 Iowa, 482) 619 Kilbourn, State v. (9 Conn. 560) 997, 1001 Kilgorc, Ex parte (3 Texas Ap. 247) 318 Kilkelly v. State (43 Wis. 604) 206, 212, 558 Killian, Commonwealth v. (109 Mass. 345) 1012, 1021 Killough, State v. (32 Texas, 74) 206, 212, 558 Kilmarnock, Rex v. (18 Howell St. Tr. 441) 987 Kilpatrick v. People (5 Denio, 277) 699, 727 Kimball, Com'th v. (7 Gray, 328) 775, 776, 777, 782, 784, 794, 795, 820, 821 , Com'th K. (108 Mass. 473) 871,876 , Com'th V. (7 Met. 304) 642, 649 Kimbrough, State v. (2 Dev. 431 ) 520, 1069 Kimmcl v. People (92 111. 457) 871 Kimpton, Reg. v. (2 Cox C. C. 296) 871 Kinch, Rex v. (28 Howell St Tr. 619) 520 Kindred, U. S. t. (4 Hughes, 493) 1046 :King, Com'th v. (13 Met. 115) 1012, 1015 626 Sectiok King, People v. (27 Cal. 507) 520 , Reg. fc. (7 Q. B. 782) 285, 291 , Rex t>. (Trem. P. C. 217) 919,1046 , Rex ;;. (6 Went. PI. 372) 711 V. State (17 Fla. 183) 777, 782 V. State (40 Ga. 244) 881 V. State (5 How. Missis. 730) 1090 V. State (2 Ind. 523) 642 V. State (44 Ind. 285) 582 , Stater. (3 Ire. 411) 1012,1023 , State r. (69 N. C. 419) 180 Kingman, Com'th r. (14 Gray, 85) 642, 655 Kingsbury, Commonwealth v. (5 Mass. 106) 285, 290 Kingsley, 1 eople i". (2 Cow. 522) 460 Kingston, Rex v. (8 East, 41) 323 , Rex V. (20 Howell St. Tr. 355) 881 Kinley, State v. (43 Iowa, 294) 871 Kinloch, Rex v. (Foster, 16) 1034, 1035, 10,53 Kinney v. Com'th (30 Grat. 858) 1078 Kinsman v. State (77 Ind. 132) 63, 699,716 Kirby, Commonwealth v. (2 Cush. 577) 206, 838, 839 Kirk V. Com'th (9 Leigh, 627) 337 v. State (6 Misso. 469) 569 Kirkpatrick, State v. (32 Ark. 117) 871 Kirton, Reg. v. (6 Cox C. C. 393) 871 Kirwan, Rex v. (28 Howell St. Tr. 775) 987 Kistler v. State (54 Ind. 400) 977 Kit V. State (11 Humph. 167) 933 Kleim, People v. (1 Edm. Sel. Cas. 13) 1062 Klein i\ State (76 Ind. 333) 642 Klifiield V. State (4 How. Missis. 304) 642 Kline v. State (44 Missis. 317) 663, 665 Kneeland, Commonwealth v. (20 Pick. 206) 241,243 Knight, Com'th v. (12 Mass. 274) 871 , Reg. «. (14 Cox C. C. 31) 234,420 , State V. (43 Maine, 11) 520 Knightley, Rex v. (13 Howell St. Tr. 398) 987 Knouse, State «. (29 Iowa, 118) 520 Knowles, Rex i: (12 Howell St. Tr. 1167) 520 , Rex V. (Trem. P. C. 11) 520, 1037, 1057, 1060 V. State (3 Bay, 103) 629 Knowlton, Com'th v. (2 Mass. 530) 440 Knox, Com'th v. (6 Mass. 76) 663, 667 , Rex V. (7 Howell St. Tr. 763) 285 Kobe, State v. (26 Minn. 148) 642 Kohn, Reg. v. (4 Eost. & F. 68) 285, 286, 699, 721 KoU, People v. (3 Keyes, 236) Koppersmith v. State (51 Ala. 6 Koster v. People (8 Mich. 431) Krider, State v. (78 N. C. 481) 997 1000 861 254 582, 606 Kroeger, State v. (47 Misso. 552) 460, 469 Kube, State v. (20 Wis. 217) 420, 425 Kuhuke, State v. (26 Kan. 405) 642 Knrz V. State (79 Ind. 488) 642 Kyle V. State (10 Ala. 236) 890, 893 , State V. (10 Misso. 389) 489, 506 LAR INDEX TO THE CASES CITED. LEE Section Labbaite v. State (6 Texas Ap. 257) 460, 464 La Beamu. People (6 Parker C. C. 371) 111,206,213,558 La Bore, State v. (26 Vt. 765) 881 Labouchere, Reg. v. (14 Cox C. C. 419) 619 Lacefiekl v. State (34 Ark. 275) 206, 558 Lad, Rex v. (1 Leach, 96) 534 Ladd V. State ( 1 7 Fla. 215) 420 Lafontaine, Com'th v. (3 Gray, 479) 642 Lagrone v. State (12 Texas Ap. 426) Lake v. People (1 Parker C. C. 495) , Keg. V. (U Cox C. C. 333) Lakeman, Com'th v. (5 Gray, 82) Lamb, Com'th v. (1 Gray, 493) , State V. (65 N. C. 419) Lambert !>. People (7 Cow. 166 Cow. 578) 285, , Rex V. (2 Camp. 398) , Rex V. (22 Howell St. Tr. 954) 633, 635 520, 1086 420, 426 916 180 460, 470 ; 9 291, 1068 619 619, 621 , Rex w. (31 Howell St. Tr. 335; 2 Camp. 398) 619, 621 Lambertson v. People (5 Parker C. C. 200) 963 Lambeth, State v. (80 N. C. 393) 420 Lamden v. State (5 Humph. 83) 871, 876 Lanaiize, Reg. v. (2 Cox C. C. 362) 403 Lancaster, Rex v. (1 Howell St. Tr. 39) 987, 1068 V. State (9 Texas Ap. 393) 582 , State V. (36 Ark. 55) 633, 635 Landringham v. State (49 Ind. 186) 285, 288 Lane, Com'th w. (113 Mass. 458) 881 V. State (37 Ark. 272) 642 , State V. (80 N. C. 407) 460 Laney, State v. (87 N. C. 535) 992 Lang", Commonwealth t. (10 Gray, 11) 206,556,558 Langcake, Respublicaw. (1 Yeates, 415J 742 Langdale v. People (100 111. 263) 460, 470 Langdon, State v. (29 Minn. 393) 642 Langford v. State (45 Ala. 26) 420, 428 , State V. (3 Hawks, 381) 699, 707, 777, 833 , State V. (3 Ire. 354) 489, 777, 805 Langham v. State (55 Ala. 114) 303, 576 Langlev, Commonwealth v. (14 Gray, 21) " 776, 777, 782, 820, 821 Langrish, Rex v. (Trem. P. C. 176) 270 Lanier, State v. (89 N. C. 517) 403 Lanigan, Commonwealth v. {2 Law Reporter (Bost.), 49) 206, 904, 910 Lannan, Com'th v. (1 Allen, 590) 420 Lapoint, United States v. (Morris, 146) 569 Lara, Rex v. (2 Leach, 647 ; 6 T. R. 565) 272 Larkin, Reg. v. (Dears. 365 ; 6 Cox C. C. 377) 916 , State u. (11 Nev. 314) 520 Larned v. Com'th (12 Met. 240) 254 Section Lamer, Reg. v. (14 Cox C. C. 497) 420 Larney v. Cleveland (34 Ohio State, 599) 91 Lartigue, State v. (29 La. An. 642) 582 Lasiiido v. State (2 Texas Ap. 59) 777, 782 Lasington's Case (Cro. Eliz. 750) 74 Lastro v. State (3 Texas Ap. 363) 170 Lasure v. State (19 Ohio State, 43) 1037 Latham v. Reg. (5 B. & S. 635 ; 9 Cox C. C. 516) 285, 290, 420, 1068 Lathrop v. State (6 Blackf. 502) 680, 691 , State V. (15 Vt. 279) 420 V. Stuart (5 McLean, 167) 93 Latimer, Reg. v. (15 Q. B. 1077) 639 Lattinville, Commonwealth v. (120 Mass. 383) 642, 652 Lavake, State v. (26 Minn. 526) 642 Lavarre u. State (1 Texas Ap. 685) 582, 593 Lavett V. People (7 Cow. 339) 1084 Lavey v. Reg. (2 Den. C. C. 504 ; 5 Cox C. C. 269) 871 V Reg. (17 Q. B. 496) 871 Lavonsair, Com'th y. (132 Mass. 1) 777,782 Lawes, Reg. u. (1 Car. & K. 62) 253, 254 Lawlor, Reg. v. (6 Cox C. C. 187) 871 Lawrence v. Com'th (30 Grat. 845) 904, 908 l: Smith (5 Mass. 362) 1034 V. State (59 Ala. 61) 1037 Lawry, State v. (4 Nev. 161) 206, 212 Laws, United States v. (2 Lowell, 115) 885 Lawson v. State (20 Ala. 65) 148, 153 w. State (55 Ala. 118) 642,656 V. State (3 Lea, 309) 871 y. State (13 Texas Ap. 264) 254 Laydon v. State (52 Ind. 459) 520 Layer, Rex v. (16 Howell St. Tr. 93) 987, 1037, 10.53 Lea, State v. (3 Ala. 603) 871, 874 Leach, State v. (60 Maine, 58) 680, 691 Leary, Rex v. (26 Howell St. Tr. 295) 987 V. State (39 Ind. 544) 777, 794, 820 Leath v. Com'th (32 Grat. 873) 489, 502 Leatham, Reg. v. (8 Cox C. C. 425) 247, 249 Leath erbarrow, Reg. v. (10 CoxC. C. 637) Leathers, State v. (31 Ark. 44) Leatherwood v. State (6 Texas Ap. 244) Leavitt, State v. (66 Maine, 440) Lee 0. Kane (6 Gray, 495) , Reg. V. (1 Howell St. Tr. 1403) , Reg. V. (Leigh & C. 309 ; 9 Cox C. C. 304) , Reg. V. (Leigh & C. 418 ; 9 Cox C. C. 460) 420, 425 , Reg. V. (2 Moody & R. 281 ) 460, 466 , Rex V. (5 Esp. 123) 619 , Rex V. (Trem. P. C. 247) 690 V. West (47 Ga. 311) 303 Lee Ping Bow, State u. (10 Oregon, 27) 582 Leech, Rex v. (9 Howell St. Tr. 351) 319, 393, 1038 Leefe, Rex v. (2 Camp. 134) 871, 876 627 237 442 263 582, 592 93 987 420 LIT INDEX TO THE CASES CITED. LOY Section Leeman v. State (35 Ark. 438) 415 Legassy, Com'th v. (113 Mass. 10) 1031 Legge, Reg. t-. (6 Cox C. C. 220) 871, 876 Leigh, State v. (3 Der. & Bat. 127) 680, 690 V. Webb (3 Esp. 165) 93 Leighton, State v. (3 Fost. N. H. 167) 489, 777, 805 Leisenring, Com'th v. (11 Philad. 389) 403 Leland v. Kingsbury (24 Pick. 315) 93 Lemon v. State (19 Ark. 171) 699, 717 Lemons v. State (50 Ala. 130) 642, 656 Lenahau v. People (5 Thomp. & C. 265) 206, 558 Lennox's Case (2 Lewin, 268) 933 Lennox, Reg. v. (26 U. C. Q. B. 141 ) 997 Lenoir Justices, State v. (4 Hawks, 194) 680, 690 Leobold v. State (33 Ind. 484) 420 Leonard, Com'th v. (8 Met, 529) 642 , Com'th V. (8 Met 530) 642, 649 , Reg. V. (1 Den. C. C. 304; 2 Car. & K. 514 ; 3 Cox C. C. 284) 420 V. State (29 Ohio State, 408) 337,344 Leoni i'. State (44 Ala. 110) 904, 905 Leslie, State v. (16 N. H. 93) 482, 483 Levens, State v. (22 Misso. 469) 1012, 1019 Lever, Rex v. (Trem. P. C. 320) 779, 1082 Leverson v. Reg. (Law Rep. 4 Q. B. 394; 11 Cox C. C. 286) 1086 Levi V. State (4 Baxter, 289) 763 , State V. (41 Texas, 563) 420 Levy V. People (80 N. Y. 327) 180, 188, 189, 190 Lewellen v. State (18 Texas, 538) 395 Lewis, People v. (1 Wheeler Crim. Cas. 181) 460, 466, 467 , Reg. u. (9 Car. & P. 523) 111,206, 212, 226, 558 , Reg. V. (11 Cox C. C. 404) 285, 291 , Rex V. (Trem. P. C. 242) 437 V. State (41 Ala. 414) 983 V. State (16 Conn. 32) 254 V. State (1 Head, 329) 1037 u. State (49 Missis. 354) 180 V. State (2 Texas Ap. 26) 263 , State V. (1 Winst. 307) 890, 893 Liles, State v. (78 N. C. 496) 582, 600 Lince, Reg. v. (12 Cox C. C. 451 ) 420 Lincoln, Com'th v. (11 Allen, 233) 420, 425 , Rex w. (Russ. &Ry. 421) 871 Lindenburg, State v. (13 Texas, 27) 871 Lindsay, Com'th u. (11 Gush. 415, note) 699 , Ilex V. (14 Howell St. Tr. 987) 987 , State V. (34 Ark. 372) 489 Linney v. State (5 Texas Ap. 344) 169 Lipsey, State v. (3 Der. 485) 1075 Lisles, State v. (58 Misso. 359) 642, 653 Lister, Reg. v. (Dears. & B. 209; 7 Cox C. C. 342) 58, 777, 788 V. State (3 Texas Ap. 17) 1078 Little, Rex v. (1 Bur. 609) 509 . State V. (67 Misso. 624) 206, 904, 910 , State V. (1 Vt. 331) 958 628 Seotios Littlefield, State ». (70 Maine, 452) 520 Livermore, State v. (44 N. H. 386) 180 Liverpool, Rex i: (3 East, 86) 1012, 1017 Lloyd, Rex v. (Cald. 415) 442 , U. S. u. (4 Cranch C. C. 472) 206 Lock, Rex v. (Trem. P. C. 248) 890, 898 Locke, Com'th v. (1 14 Mass. 288) 642, 646 -, State V. (35 Ind. 419) 420 Lockett V. State (63 Ala. 5) 180 V. State (40 Texas, 4) 365 Lodano v. State (25 Ala. 64) 642, 652 LoeiFner v. State (10 Ohio State, 598) 520 Loftin, State K. (2 Dev, & Bat. 31) 736 Logan II. State (2 Lea, 222) 206, 558 V. State (5 Texas Ap. 306) 997, 999 Logg V. People (92 111. 598) 929 Lohman, People v. (2 Barb. 216) 140 Long's Case (5 Co. 120 a) 520 Long, Rex v. (4 Car. & P. 423) 520, 529 K. State (12 Ga. 293) 58,933,1079 1-. State (56 Ind. 133) 1038 V. State (43 Texas, 467) 167 r. State (10 Texas Ap. 186) 342 Longmead, Rex v. (2 lycach, 694) 974 Longton Gas Co., Reg, v. (2 Ellis & E. 651) 1012, Longworth, State v. (41 Texas, 162) Lonon, State v. (19 Ark, 577) 206 Lonsdale, Reg. o. (2 Cox C. C. 222) 1015 403 , 222 400, 470 , 483 582 Loomis w. People (19 Hun, 601) 482 , State V. (27 Minn, 521) Loose, Reg. v. (Bell C. C. 259 ; 8 Cox C. C. 302) 582,610 Lopez, State v. (18 Texas, 33) 489, 493 Lord V. State (16 N. H. 325) 777, 805, 807 , State V. (16 N. H. 357) 777, 1012, 1015 Lorimer v. State (76 Ind. 495). 777, 802, 804 973 699, 992 757 Lose V. State (72 Ind. 285) Lossen v. State (62 Ind. 437) Loudon, State v. (3 Head, 264) Louisville, &c. Turnpike v. State (3 Heisk. 129) 757 Love, Rex v. (5 Howell St. Tr. 43) 987 , State V. (2 Dev. & Bat. 267) 442, 452 Lovelace, Rex v. (Trem. P. C. 273) 838, 840, 1046 Lovelass, Reg. v. (1 Moody &R. 349; 6 Car. & P. 596) 853 Lovell, Reg. w. (2 Moody & R. 236) 403 , Rex V. (1 Leach, 248) 460, 470 «. State (45 Ind. 5.50) 56, 58 Lovett, State v. (3 Vt. 110) 838, 840 Lowe V. State (4 Texas Ap. 34) 80, 777, 782 Lowenberg v. People (5 Parker C. C. 414) 520, 1086, 1088 Lowenthal v. State (32 Ala. 589) 58, 403, 408 Lowick, Rex u. (13 Howell St. Tr. 267) 987 Lowrie, Reg. v. (Law Rep. 1 C. C. 61 ; 10 Cox C. C. 388) 582, 605 Loydw. State (42 Ga. 221) 116,254,256 McC INDEX TO THE CASES CITED. McG Section Luberg, Com'th ti. (13 Norris, Pa. 85) 460 Ludwig, State v. (21 Minn. 202) 642, 653 Luf kin, Com'th v. (7 Allen, 579) 350 Lumley v. Gye (2 Ellis & B. 216) 303 Lumsden, U. S. v. (1 Bond, 5) 82, 760 Luscomb, Commonwealth v. (130 Mass. 42) 763, 770 Lusk, State u. (16 W. Va. 767) 58, 247, 250 Lutz V. Com'th (5 Casey, Pa. 441) 520 Lyerly, State w. (7 Jones, N. 0. 158) 148, 154 Lyles, United States v. (4 Cranch C. C. 469) 106, 206, 225 Lyman v. State (45 Ala. 72) 1043, 1044 V. State (47 Ala. 686) 1043, 1044 Lynch, Com'th v. (8 Gray, 384) 663, 664 — — u. People (16 Mich. 472) 663,666 , People i;. (11 Johns. 549) 942 , People V. (29 Mich. 274) 206, 904, 910 Lyon, Hex v. (2 Leach, 597) 460, 471 V. State (61 Ala. 224) 582, 600 Lyons v. People (68 111. 271 ) 87, 2.54 , Reg. V. (8 Cox C. C. 84; Bell, 38) 180, 185, 187 Mabey, Reg. v. (37 U. C. Q. B. 248) 124 McAdams v. State (10 Texas Ap. 317) 582 McAfee, Com'th v. (108 Mass. 458) 520 McAllister, State v. (26 Maine, 374) 64, 582 McAloon, State v. (40 Maine, 133) 916 McAlpin V. State (3 Ind. 567) 777,805, 809 McAnulty, State w. (26 Kan. 533) 254 McArdle, U. S. v. (2 Saw. 367) 582 Macarty, Keg. v. (6 Mod. 301 ; 2 Ld. Eaym. 1179) 272 McBcnnet, Rex v. (Jebb, 148) 977 McBride v. Com'th (13 Bush, 337) 582 , State w. (8 Humph. 66) 489, 506 , State V. (26 Wis. 409) 520, 529 McCann, Rex v. (27 Howell St.Tr. 399) 987 V. United States (2 Wy. Ter. 274) 403 McCarn, State v. (11 Humph. 494) 206,5.'j8 Mc Carney v. People (83 N. y. 408) 80 McCarron, Com'th v. (2 Allen, 157) 763, 770 McCarthy v. Territory (1 Wy. Ter. 311) 415 V. State (56 Ind. 203) 663 McCarty v. State (16 Ind. 310) 205 V. State (37 Missis. 411) 1012, 1021 McCauley v. State (26 Ala. 135) 1043, 1044 McClanahan, Commonwealth v. (2 Met. Ky. 8) 82, 263, 265 McClellan, Com'th v. (101 Mass. 34) 350 V. State (32 Ark. 609) 460 Macclesfield, Rex v. (Trem. P. C. 39) 941 McClintock, State v. (1 Greene, Iowa, 392) 206, 212, 228 , State V. (8 Iowa, 203) 206 McClure v. Com'th (5 Norris, Pa. 353) 460 V. State (37 Ark. 426) 58, 680, 685 , State V. (4 Blackf. 328) 958 McComas v. State (U Misso. 116) 206, 904, 910 McConico V. State (49 Ala. 6) 881 Section McConkey, State v. (49 Iowa, 499) 420, 425 McConnell, Reg. v. (2 Moody, 298 ; 1 Car. &K. 371) 460,470 McCool !>. State (23 Ind. 127) 642 McCormack, People v. (4 Parker C. C. 9) 1082 McCormick, State v. (27 Iowa, 402) 520 , U. S. V. (1 Cranch C. C. 106) 735, 736 McCourtney, State v. (6 Misso. 649) 929 McCoy V. State (3 Eng. 451) 206, 542,555, 558 V. State (15 Ga. 205) 582, 610 , State V. (89 N. C. 466) 582 McCray, State v. (74 Misso. 303) 1012 McCreary v. Commonwealth ( 5 Casey, Pa. 323) 1043, 1044 McCroskey, State v. (3 McCord, 308) 871 McCulley v. State (62 Ind. 428) 205 McCullough V. State (63 Ala. 75) 680 McCurdy, Com'th v. (5 Mass. 324) 439 McCutcheon v. People (69 111.601) 58,642, 6.52 McDade v. People (29 Mich. 50) 111, 180, 194 McDermott v. People (5 ParlcerC. C. 102) " 80, 180, 189, 194, 195 McDonald's Case (2 Lewin, 46) 180 McDonald, Commonwealths. (5 Cush. 365) 111,582,612 , People V. (9 Mich. 150) 206, 904, 910 , State V. (67 Misso. 13) HI, 206, 212, 228, 535 , State V. (9 W. Va. 456) 254 McDowell V. State (61 Ala. 172) 582, 592 , State V. (84 N. C. 798) 1012, 1017 McDuell, United States v. (5 Cranch C. C. 391) 777,789 McDuffie, State v. (34 N. H. 523) 699, 712 Mace V. State (9 Texas Ap. 110) 254 McEIroy, State v. (3 Helsk. 69) 1012, 1019 , Territory v. (1 Mon. Ter. 86) 415 , V. S. V. (2 Mon. Ter. 494) 403 McEntee v. State (24 Wis. 43) 582, 602 McEvoy, Beg. v. (20 U. C. Q. B. 344) 206, 558 McGahagin v. State (17 Fla. 665) 699, 716 McGardiner, State v. (1 Ire. 27) 460, 475 McGarry v. People (2 Lans. 227) 180, 189 McGavaron, Reg. v. (3 Car. & K. 320 ; 6 Cox C. C. 64) 205, 904 McGehee v. State (58 Ala. 360) 992 McGinnis v. State (9 Humph. 43) 1043 , State V. (37 Ark. 362) 509 McGrath, Commonwealth v. (115 Mass. 150) 206, 742, 748 - — , State V. (73 Misso. 181) 642 McGregor, Reg. v. (1 Car. & K. 429) 580 , Rex V. (liuss. & Ry. 23 ; 2 Leach, 932; 3 B. &P. 106) 401,403 , State V. (41 N. H. 407) 777, 782 McGrew v. State (13 Texas Ap. 340) 564 McGuire v. People (2 Parker C. C. 148) 1082 w. State (37 Ala. 161) 58,460,461 629 MAC INDEX TO THE CASES CITED. MAE Section McHale, Com'th w. (1 Out. Pa. 397) 285,312 Mclnnis v. State (51 Ala. 23) 489, 503 Mclntire, State v. (59 Iowa, 267) 582 Mcintosh, Rex v. (28 Howell St. Tr. 1215) 987 Mclntj'i-e, State v. (19 Minn. 93) 138, 141, 520 Mclvor, Com'th v. (117 Mass. 118) 777, 820 Mack V. State (63 Ala. 138) 420 Mackalley's Case (9 Co. 61 b) 115,520,539 McKay v. State (12 Misso. 492) 1068 McKee, Ex parte (18 Misso. 599) 321 McKeen v. State (7 Te.xas Ap. 631) 116 McKenney, Com'th v. (14 Gray, I ) 642, 655 McKcnzie v. State (6 Eng. 594) 420 McKettrick, State v. (14 S. C. 346) 206 Mackey v. State (3 Ohio State, 362) 58 McKiernan, Commonwealth o. (128 Mass. 414) 642, 653 , State V. (17 Nev, 224) 460 McKinley v. State (8 Humph. 72) 337 McKinney v. People (32 Mich. 284) 699, 718, 720 , People V. (10 Mich. 54) 60, 403,409, 1078 , People V. (3 Parker C. C. 510) 871 McKinnon, People i: (1 Wheeler Crim. Cas. 170) 206 McKinstry, State v. (50 Ind, 465) 285, 288 McKnight v. State (6 Texas Ap. 158) 148 Maclane, Rex ... (26 Howell St. Tr. . 722) 987 McLane v. State (4 Ga. 335) 180, 190 , State !;. (15 Nev. 345) 520 , State V. (43 Texas, 404) 403 McLaughlin, Commonwealth v. (12 Cush. 612) 206, 212 , Commonwealth v. (105 Mass. 460) 111,699,714 , Com'th V. (122 Mass. 449) 871 V. State (45 Ind. 338) 23, 777, 820 McLeod, State v. (5 Jones, N. C. 318) 582 McLeran, State v. (1 Aikens, 311) 460,473 Macloon, Commonwealth v. (101 Mass. 1) 21, 520, 535, 537 McMahan v. State (13 Texas A p. 220) 633, 635 McMahon, Reg.w. (26 XJ. C. Q. B. 195) 987 McMillen v. State (60 Ind. 216) 111, 977, 980 V. State (5 Ohio, 268) 460, 467 McMinn, State v. (34 Ark. 160) 582, 1043 , State V. (81 N. C. 585) 699, 723 McNair v. People (89 111. 441) 619, 626 V. Rempiiblicam (4 Yeates, 326) 442 McNally, State v. (34 Maine, 210) 642, 645 MfNatnara, Com'th v. (116 Mass. 340) 376 McNameo ;■. People (31 Mich. 473) 958 McNeil V. State (47 Ala. 498) Macomber, Commonwealth v. (3 Mass. 254) 180 , State V. (7 R. I. 349) 384, 386 Macpherson, Reg. v. (Law Rep. 3 P, C. 268 ; 11 Cox C. C. 604) 630 148 187 606 Section McQuarrie, Reg. v. (22 U. C. Q. B. 600) 420 McQuiggan, Reg. v. (2 L. C. 340) 881 McQuillen v. State (8 Sm. & M. 587) 1068 McRoberts, State v. (4 Blat-kf. 178) 569 McSherry, Commonwealth v. (3 Gray, 481, note) 642 McTigue V. State (4 Baxter, 313) 933 McWaters v. State (10 Mis=iO. 167) 929 Mc Williams, State v. (7 Misso. Ap. 99) 672, 677 Madden v. State (1 Kan. 340) 138 Maddox, State v. (74 Ind. 105) 205 Magee, State v. (11 Ind. 154) 420 Magrath, State v. (19 Misso. 678) 206 Maguire, People v. (26 Cal. 635) 663, 671 V. State (47 Md. 485) 642, 653 , State V. (69 Misso. 197) 1065 Mahar v. State (28 Ark. 207) 680, 687 Mahoney, People v. (18 Cal. 180) 1064 Mahony, Reg. v. (6 Cox C. C. 487) 460, 464 Maile v. Commonwealth (9 Leigh, 661 ) 520 Main, State v. (31 Conn. 572) 777, 782 Maine Central Railroad, State v. (60 Maine, 490) 520, 531 Mainey, State v. (65 Ind. 404) 1012 Mains v. State (42 Ind. 327) 58, 77.5, 777, 782, 794 Maires, State i;. (4 Vroom, 142) 415 Mairs, State v. (Coxe, 453) 206, 558 Major, Rex v. (2 Leach, 772) 977 , State II. (14 Rich. 76) 582,592 Maley v. State (31 Ind. 192) 420 Malim, State v. (14 Nev. 288) 58, 403 Malloy, Com'th t;. (119 Mass. 347) 890, 893 , State V. (30 La. An. 61) 254 , State V. (5 Vroom, 410) 699, 724 Malone v. State (51 Ala. 55) 1012 V. State (14 Ind. 219) 1003 , United States v. (8 Ben. 574) 973 Maloney, State v. (12 R. I. 251) 838 Manchester, State v. (3 Baxter, 416) 757 Manchester, &c. Railroad, State v. (52 N. H. 528) 520, 531 Manderfield, Commonwealth v. (8 Philad. 457) 672, 677 Maney 1-. State (6 Lea, 218) 438 Manheim v. State (66 Ind. 65) 58, 489, 505 Manlove, Rex v. (Trcra. P. C. 246) 895 Manly r. State (52 Ind. 215) 520 Mann, Com'th v. (1 Va. Cas. 308) 680, 691 Manning, Reg. v. (1 Den. C. C. 467) 520 , Reg. V. (Law Rep. 1 C. C. 338; 12 Cox C. C. 106) 180 Mansell v. Reg. (Dears. &B. 375) 1068 V. Reg. (8 Ellis & B. ,54) 1086 Manser, Reg. v. (4 Fost. & F. 45) 232 Mansfield, State v. (33 Texas, 129 582 Manvelle v. State (58 Ind. 63) 642 Man-zau-mau-ne-kah v. United States (1 Pin. 124) 520 Mapes V. Peoijle (69 111. 523) 642, 652 March, Reg. v. (1 Car. & K. 496) 111, 206, 558 MAT INDEX TO THE CASES CITED. MEU Section Marfrerura, Eex v. (Trem. P. C. 168) 968 Marion, People v. (28 Mich. 255) 460 Marks v. State (45 Ala. 38) 672, 673 , United States v. (2 Abb. U. S. 531) 415,865 Marner, Reg. u. (Car. & M. 628) 231 Marriott, Reg. . (2 Leach, 575) 885 MOR INDEX TO THE CASES CITED. MUR 384, 386 415 460 509 642 323 853 1058 Section Moore, Rex v. (1 Moody, 122) 342 V. State (40 Ala. 49) 582, 588, 1068 I.'. State (65 Ind. 213) 489, 504 V. State {2 Ohio State, 500) ■ 47, 520 V. State (12 Ohio State, 387) 642, 650, 1078 t). State (3 Pin. 373) 206,742,748 V. State (7 Texas Ap. 608) 739 , State I'. (39 Conn. 244) 838, 839 , State V. (3 Dutcher, 105) , State V. (1 Ind. 548) , State V. (6 Ind. 436) , State V. (Meigs, 476) , State V. (14 N. H. 451) Moorhouse, Rex v. (4 Doug. 388 ; Cald. 554) Moors, Hex v. (6 East, 419, note) Moran, Commonwealth v. (130 Mass. 281) 1038, , State V. (7 Iowa, 236) 520, 545 More, United States v. (3 Cranch, 159) 415 Moieau, Reg. v. (11 Q. B. 1028) 871 Moreland, State v. (27 Texas, 726) 176 Morgan, Rex v. (4 Went. PI. 106) 302 y. State (11 Ala. 289) 564 V. State (48 Ala. 65) 1079 V. State (13 Fla. 671) 164, 166 V. State (13 Sm. & M. 242) 206, 553, 558 V. Smith (77 N. C. 37) 303 , State V. (2 Dev. & Bat. 348) 460 , State V. (62 Ind. 35) 205, 1043 , State V. (85 N. C. 581) 520 , State V. (1 Winst. 246) 442 , U. S. V. (Morris, 341) 871, 876 Moriartv, State v. (74 Ind. 103) 375 Morley ■«. Greenhaigh (3 B. & S. 374) 361, 489, 507 , Rex V. (Trem. P. C. 280) 520 Morman v. State (24 Missis. ,54) 553, 556 Morrell v. People (32 111. 499) 871 Morrill, Com'th v. (8 Cush. 571) 420 w. State (38 Wis. 428) 509 Morris, Commonwealth v.{l Va. Cas. 176) 619, 623 V. People (1 Parker C. C. 441 ) 1068 , Rex V. (1 Leach, 109) 916 , Rex V. (2 Leach, 1096 ; Rnss. & Ry. 270) 460, 475 , State !•. (27 La. An. 480) 254 . U. S. w. (1 Curt. C. C. 23) 1034 V. Whitehead (65 N. C. 637) 317 Morris, &c. Railroad v. State (7 Vroom, 553) 777, 790 Morrison o. Commonwealth (7 Dana, 218) 777, 820 , People V. {\3 Wend. 399) 482 , Stale i,'. (2 Ire. 9) 890, 893 Morrissey, State v. (22 Iowa, 158) 254 , State V (70 Maine, 401) 620 Morse, Com'th v. (2 Mass. 128) 342 , Com'th V. (2 Mass. 138) 460, 467 V. Reed (28 Maine, 481) 172 Morton, In re (10 Mich. 208) 321 Section Morton v. People (47 Rl. 468) 420, 431 V. State (3 Texas Ap. 510) 46, 619 V. State (27 Vt. 310) 460, 469 , State V. (8 Wis. 352) 460, 467, 479 Moseley, Reg. v. (Leigh & C. 92) 420 V. White (1 Port. 410) 93 Moser, State v. (33 Ark. 140) 241, 243, 244, 859 Moses, Rex v. (7 Car. & P. 423) 460, 478 V. State (58 Ind. 185) 777, 828, 831 , State V. (7 Blackf. 244) 680, 687 , State V. (2 Dev. 452) 520 Mosley, Rex v. (1 Moody, 98 ; 1 Lewin, 189) 620 Moss, Reg. V. (Dears. & B. 104 ; 7 Cox C. C. 200) 489, 496 Most, Reg. u. (7 Q. B. D. 244; 14 Cox C. C. 583) 106, 558 Mostyn v. Fabrigas (Cowp. 161) 1034 Mott, Commonwealth v. (21 Pick. 492) 97 V. State (29 Ark. 147) 180 Moulden b. State (5 Lea, 577) 420, 916, 918 Moulton, Com'th v. (10 Cush. 404) 642 , Com'th V. (108 Mass. 307) 977, 979 , U. S. V. (5 Mason, 537) 89, 582 V. Wilby (9 Cox C. C. 318) 438 Mouncer, Rex v. (2 Leach, 567) 254, 255 Mount V. Commonwealth (1 Duv. 90) 460, 466, 474 V. State (7 Ind. 654) 489, 497 Mowry, Com'th u. (11 Allen, 20) 933, 935 Moy Looke, State v. (7 Oregon, 54) 569 Moye V. State (9 Texas Ap. 88) 484, 485 Moylan, Reg. K. (19 U. C. Q. B. 521) 639 Mueller v. State (76 Ind. 310) 663 Mulcahy v. Reg. (Law Rep. 3 H. L. 306) 28.5, 987 Mulhisen, State v. (69 Ind. 145) 75, 80, 642, 652 Mulvanev, United States v. (4 Parker C. C. 164) 58, 886 Mumford, State v. (1 Dev. 519) 871 Munch, State v. (22 Minn. 67) 403 Munco, State v. (12 La. An. 625) 558 Munday, State v. (78 N. C. 460) 420 Munger, State u. (15 Vt. 290) 642 Munn V. People (69 111. 80) 997, 1001 Munro, Reg. v. (24 U. C. Q. B. 44) 777, 794 , State V. (12 La. An. 625) 206 Munson v. People (5 Parker C. C. 16) 777, 810, 816 , Reg. V. (2 Cox C. C. 186) 180 V. State (79 Ind. 541 ) 460 , State V. (76 Misso. 109) 212 Muntz, Statet'. (3 Kan. 383) 642 Murfreesboro', State u. (11 Humph. 217) 1012, 1017 Murphy v. Commonwealth (23 Grat. 960) 206, 556, 558 , Commonwealth v. (2 Allen, 163) 151 , Com'th V. (12 Allen, 449) 977, 979 , Com'th V. (2 Gray, 510) 642, 655 V. People (90 111. 59) 642, 652 633 NEE INDEX TO THE CASES CITED. NIC Murphy, People v. (39 Cal. 52) , Keg. V. (8 Car. & P. 297) , Reg. V. (4 Cox C. C. 101 ) , Keg. V. (13 Cox C. C. 298) , Kex V. (19 Howell St. Tr. 693) Section 520, 542 285 403 420 460, 475 838 254 642 80 V. State (55 Ala. 252) V. State (63 Ala. 1) V. State (24 Missis. 590) V. State (36 Ohio State, 628) , State V. (6 Ala. 765) 285, 288, 292 , State V. (6 Ala. 845) 916 , State V. (8 Blackf. 498) 582 , State V. (5 Eng. 74) 890, 891 , Stale v. (21 Ind. 441) 205 , State V. (72 Maine, 433) 1079 , State V. (47 Misso. 274) 6, 642, 653 Murray v. Keg. (7 Q. B. 700) 881 , Kex V. (1 Moody, 276) 403 !•. State (18 Ala. 727) 582 V. State (48 Ala. 675) 254 , State V. (41 Iowa, 580) 204, 206 Murroll v. State (44 Ala. 367) 576, 577 Murry v. Com'th (5 Leigh, 720) 460, 466 ■ V. State (I Texas Ap. 174) 1065 Muse, State v. (4 Dev. & Bat. 319) 642 Musquez v. State (41 Texas, 226) 582, 592, 609 Muston, State v. (21 La. An. 442) 403 Mutters, Keg. v. (Leigh & C. 491 ; 10 Cox C. C. 6) 90, 777, 828, 831 Mycall, Commonwealth u. (2 Mass. 136) 460, 463, 474 Mycock, Reg. v. (12 Cox C. C. 28) 944 Myers, Coniinonwealtli v. (1 Va. Cas. 188 ; 3 Wheeler Crim. Cas. 545) 1043 I'. Peonle (26 111. 173) 75, 582, 592 V. People (67 111. 503) 642 , State V. (20 Misso. 409) 992, 993 Mytton, Kex v. (4 Doug. 333) 323 Nail, State l: (19 Ark. 563) 846 Name Unknown, Commonwealth v. (6 Gray, 489) 642, 646 Napier v. State (50 Ala. 168) 489, 506 Napman v. People (19 Mich. 352) 136 Nash, People v. (5 Parker C. C. 473) 1082 V. Reg. (4 B. & S. 935 ; 9 Cox C. C. 424) V. State (7 Ind. 666) Nasmith, Reg. c. (42 U. C. Q. B 232 205 242) 750, 751 420, 422 442 Nason, Com'th v. (9 Gray, 125) Nations, Slate v. (1 Ire. 325) , State «. (31 Texas, 561) 206, 212, 558 Naylor, lies;, v. (Law Rep. 1 C. C. 4; 10 Cox C. C. 149) 420 Neaderhouser v. State (28 Ind. 257) 777, 1012. 1026 Neales v. State (10 Misso. 498) 777, 820 Necomh v. State (37 Missis. 383) 520, 542 Neel V. State (4 Kng. 259) 317 Neeley, State v. (20 Iowa, 108) 520 634 Section NefF, State v. (58 Ind. 516) 205 Nelson v. People (5 Parker C. C. 39) 206, 212 558 , People V. (56 Cal. 77) ' 933 , People V. (58 Cal. 104) 253, 254 V. State (32 Ark. 192) 871 V. State (39 Ala. 667) 520 V. State (1 Texas Ap. 41) 520 , State V. (19 Misso. 393) 489, 502 , State v. (8 N. H. 163) 582 , U. S. V. (5 Saw. 68) 699, 726 Nesbit, Commonwealth u. (10 Casey, Pa. 398) 663,1069 Nettles V. State (49 Ala. 35) 384 Nettleton, Rex v. (1 Moody, 259) 403 Nevill, Rex v. (Trem. P. C. 43) 621 Neville, Reg. v. (6 Cox C. C. 69) 871 Nevills V. State (7 Coldw. 78) 206, 904, 910 Nevins, People v. (1 Hill, N. Y. 154) 317 New, State v. (22 Minn. 76) 403 New Sarum, Reg. u. (7 Q. B. 941) 1012, 1023 New York Central, &c. Railroad, Peo- ple ti. (74 N. Y. 302) 1012,1015 Newall, Reg. u. (6 CoxC. C. 21) 871 Newberry, State v. (26 Iowa, 467) 555 Newboult, Reg. v. (Law Rep. 1 C. C. 344; 12 Cox C. C. 148) 180 Newburyport, Commonwealth ;;. (103 Mass. 129) 1012, 1023 Newburyport Bridge, Commonwealth V. (9 Pick. 142) 1012, 1023 Newcomb v. State (37 Missis. 383) 80 Newcomer, Commonwealth v. (13 Wright, Pa. 478) 403 Newell, Commonwealth i'. (5 Gray, 76) 642 Newfane, State v. (12 Vt. 422) 1012, 1018 Newill, Rex v. (1 Moody, 458) 180 Newland, Reg. v. (2 Cox C. C. 283) 608 V. State (30 Ind. Ill) 992 , State V. (7 Iowa, 242) 460, 466 Newman's Case (3 Leon. 170) 95 Newman, Reg. v. (1 Ellis & B. 558; Dears. 85 ; 3 Car. & K. 85) 619, 639, 1046 , Rex V. (Trem. P. C. 123) 415 , Rex V. (Trem. P. C. 130) 460, 474, 475 V. State (49 Ala. 9) 254 V. State (63 Ga. 533) 642, 652 Newsom, State v. (5 Ire. 250) 263 , State V. (13 W. Va. 859) 206, 212, 695 Newton, Reg. v. (1 Car. & K. 469) 871, 874 , Reg. V. (3 Car. & K. 85) 1068 , Rex I'. (Trem. P. C. 69) 627 , State V. (59 Ind. 173) 489, 502 , State V. (44 Iowa, 45) 204, 206, 904, 910, 911 , State V. (26 Ohio State, 265) 403 , State V. (42 Vt. 537) 582 Nichol V. Martyn (2 Esp. 732) 303 Nicholas, Reg. v. (1 Cox C. C. 218) 254 Nicholls, Keg. v. (10 Cox C. C. 476) 904, 908 Nichols, Com'th ;;. (10 Allen, 199) 763, 770 OAT INDEX TO THE CASES CITED. OPI Section Nichols, Com'th w. (134 Mass. 531) 299, 300 V. State (46 Missis. 284) 520, 541 V. State (8 Ohio State, 435) 1078 , State V. (8 Conn. 496) 206, 558 , State y. (5 Iowa, Jil3) 489,506 , State V. (38 Iowa, 110) 460 Nicholson, U. S. v. (3 Woods, 215) 391 Nickerson, Com'th v. (5 Allen, 518) 206 , State V. (46 Iowa, 447) 871 , State. y. (30 Kan. 545) 777, 820 Nixon v. People (2 Scam. 267) 58, 206,555, 558 V. State (55 Ala. 120) 484, 485 , State V. (5 Jones, N. 0. 257) 981, 982 , State V. (18 Vt. 70) 777, 782 Noakes i'. People (25 N. Y. 380) 80 , People V. (5 Parker C. C. 291) 460, 470 Noble V. State (59 Ala. 73) 403 , United States v. (5 Cranch C. C. 371) 460,467 Noelke, People v. (94 N. Y. 137) 672, 677 , United States v. (17 Blatch. 554) 887 Noles V. State (24 Ala. 672) 58, 520, ,543 Nolton, United States y. (5 Blatch. 427) 972 Noonan, Rex v. (Jebb, 108) 853 Norfolk, Reg. o. (1 Howell St. Tr. 957) 987 Norman, State v. (2 Dev. 222) 881 Norris v. State (25 Ohio State, 217) 80, 420 North, State v. (27 Misso. 464) 997, 998 North Brookfield, Commonwealth r. (8 Pick. 463) 1012, 1017 Northtield, State y. (13 Vt. 565) 680, 690 Northumberland, State v. (46 N. H. 156) 1012, 1017 Norton, Com'th v. (11 Allen, 266) 420 , Commonwealth y. (13 Allen, 5.i0) 777, 824, 1005, 1007 , Rex V. (4 Went. PI. 147) 415 , State V. (3 Zab. 33) 285, 312 Norwich, Kex v. (Trem. P. C. 208) 1012, 1023 Norwood V. State (45 Md. 68) 148, 159 Nosworthy, Rex v. (Trem. P. C. 75) 63.5, 634, 1039 Nott, Reg. V. (4 Q. B. 768) 853 Nourse v. State (2 Texas Ap. 304) 916 Nowlin V. State (49 Ala. 41) 1012, 1017 Noyes v. Newmarch (1 Allen, 51) 93 V. State (12 Vroom, 418) 285 , State V. (10 Post. N. H. 279) 777, 805, 809 Nuckolls V. Com'th (32 Grat. 884) 489 Nundocomiir, Kex v. (20 Howell St. Tr. 923) 460, 475 Nutter, Commonwealth v. (8 Grat. 699) 109, 206, 555, 558 Oaks, Com'th v. (113 Mass. 8) 777, 833 Oates, Reg. v. (Dears. 459; 6 Cox C. C. 540) 420 , Rex V. (10 Howell St. Tr. 1079) 871 Section O'Baldwin, Com'th v. (103 Mass. 210) 900 Ober, Commonwealth v. (12 Cush. 493) 509 O'Brian, Keg. v. (2 Car. & K. 115; 1 Den. C. C. 9; 1 Cox C. C. 126) 21, 115, 520, 539 O'Brien, Com'th «. (12 Cush. 84) 285, 300 , Com'th V. (107 Mass. 208) 206, 221 , V. Keg. (2 Cox C. C. 122) 520 y. Reg. (3 Cox C. C. 360) 987,1090 V. State (10 Texas Ap. 544) 489, 503 O'Callaghan, Reg. u. (14 Cox C. C. 499) 106, 138, 143 O'Coigly, Rex y. (26 Howell St. Tr. 1191) 987 O'Connelly. Com'th (7 Met. 460) 916 V. Reg. (1 Cox C. C. 413; 11 CI. &F. 155) 11 y. State (6 Minn. 279) 904, 905 O'Connor, Commonwealth v. (7 Al- len, 583) 263, 268 , Reg. y. (5 Q. B. 16) 285, 308 Odell, State y. (8 Blackf. 396) 680 , State y. (42 Iowa, 75) 83, 775, 777, 782, 784 642, 655 (1 763, 770 642, Va. 489, 506 Odlin, Com'th v. (23 Pick. 275) O'Donnell, Commonwealth y Allen, 593) , State y. (10 R. I. 472) OiFener, Commonwealth y. (2 Cas. 17) 0' Flaherty, State y. (7 Ner. 153) 206, 212, 558 Ogilvie, Rex v. (2 Howell St. Tr. 887) 987 O'Gorman, State v. (6S Misso. 179) 680 Oil y. Rowley (69 111. 469) 172 O'Keefe, State y. (41 Vt. 691) 642 Old V. Commonwealth (18 Grat. 915) 680, 690 O'Leavy y. People (4 Parker C. C. 187) 206, 558, 1082, 1089 Oliveira y. State (45 Ga. 555) 415 Olirer, Reg. v. (Bell C. C. 287 ; 8 Cox C. C. 384) 694 , Keg. y. (13 Cox C.C. 588) 234 y. State (37 Ala. 134) 420, 421 y. State (66 Ala. 8) 1038 y. State (17 Ark. 508) 838, 843 O'Malia y. Wentworth (65 Maine, 129) 1008 O'Meara v. State (17 Ohio State, 515) 206, 904, 910 One Case, &c.. United States y. (6 Ben. 493) One hundred Barrels of Spirits, United States y. (2 Abb. U. S. 305) O'Neal, State y. (1 Houst. Crim. 58) Oneby, Rex i>. (17 Howell St. Tr. 30) O'Neil, People v. (48 Cal. 257) 206, 904, 910 O'Neill y. Reg. (6 Cox C. C. 495) 47, 520, 542, 1068, 1090 , Reg. V. (1 Car. & K. 138) 633, 940 O'Niel, State v. (23 Iowa, 272) 520 Opie, Rex v. (1 Saund. 300) 285, 312, 851 635 973 973 115 520 PAL INDEX TO THE CASES CITED. PEA Section Orchard, Reg. v. (3 Cox C. C. 248) 777, 802 Ormond, State u. (1 Dev. & Bat. 119) 742, 745 O'Rourke v. State (8 Texas Ap. 70) 904, 908 On-, Reg. V. (12 U. C. Q. B. .'57) 32.3 V. State (18 Ark. 540) 489, 506 Orrell, State v. (1 Dev. 139) 520 Orton, Keg. v. (5 Q. B. D. 490; 14 Cox C. C. 436) 871 Orvis, State «. (13 Ind. 569) 420 Orwig, State v. (24 Iowa, 102) 403 Osborn, Rex v. (3 Bur. 1697) 273 V. State (52 Ind. 526) 944 Osborn Mills, Commonwealth ?). (130 Mass. 33) 579,750,757 Osborne, State v. (69 Misso. 143) 43, 58, 148, 1.58 Osmer, Rex v. (5 East, 304) 206, 838, 839 Ottawa, &c. Road, Reg. v. (42 TJ. C. Q. B. 478) 1012 Otwav, Reg. v. (4 Cox C. C. 59) 997, 1001 Oulaghan, Reg. v. (Jebb, 270) 206, 904, 010 Overshiner v. Commonwealth (2 B. Monr. 344) 777, 820 Overton, Reg. v. (2 Moody, 263 ; Car. &M. 655) 871 876 , Reg. V. (4 Q. B. 83) 871 Oviatt V. State (19 Ohio State, .'i73) 699, 715 Owen, Rex v. (18 Howell St. Tr. 1203) 619 , Rex V. (2 Leach, 572) 582 , State V. (15 Misso. 506) Q42 Owens, Rex v, (1 Moody, 205) 352 V State (52Ala. 400) "99, 730 , State V. (1 Houst. Crim. 72) 577 , State V. (22 Minn. 238) 138 Oxford, Reg. v. (9 Car. & P. 525) 987 Pace, State v. (9 Rich. 355) 323 Packard, Reg. v. (Car. & M. 236) 520, 533 Paddle, Rex v. (Russ. & Ry. 484) 977 Padgett V. State (68 Ind. 46) 489, 777, 805, 809 Page, Commonwealths. (26Grat. 943) 180 , People V. (3 Parker C. C. 600) 1082 , Reg. V. (2 Moody, 219 ; 9 Car. & P. 756) 94, 96, 337, 340 , Rex V. (Russ. & Ry. 392 ; 1 Brod. & B. 308) 236 Paice, Reg. v. (1 Car. & K. 73) 180, 188 Paige, State v. (.50 Vt. 445) 777, 820 Painter, State v. (40 Iowa, 298) 1065 , State V. (67 Misso. 84) 109, 206, 555, 558 , State V. (70 N. C. 70) 699, 712 Palmer v. People (43 Mich. 414) 777, 1005 , Rex V. (1 Leach, 352) 460, 476 , Rex V. (2 Leach, 680) 582, 588 , Rex V. (2 Leach, 978 ; Russ. & Rv. 72) 460, 466 '; State V. (35 Maine, 9) 206, 212 636 Section Palmer, State v. (4 Misso. 453) 777, 805 , U. S. 0. (3 Wheat. 610) 89 Pancake, State v. (74 Ind. 15) 489, 603 Pardenton, Reg. v. (6 Cox C. C. 247) 750, 757 Pardue v. State (4 Baxter, 10) 254 Pargeter, Reg. o. (3 Cox C. C. 191) 520, 530 Paris V. State (49 Ala. 25) 254 Parker's Case (2 Dy. 186 a) 115, 116, 118, 520, 539 Parker, Com'th v. (4 Allen, 313) 148, 157 , Com'th V. (117 Mass. 112) 489, 496 , Com'th !■. (9 Met. 263) 138, 140 , Reg. V. (Car. & M. 639) 871, 876 , Reg. V. (Law Rep. 1 C. C. 225 ; 11 Cox C. C. 478) , Reg. !>. (3 Q. B. 292) , Rex V. (2 Moody, 1) V. State (9 Texas Ap. 351 ) , State i;. (34 Ark. 158) , State V. (81 N. C. 531) , State V. (81 N. C. 548) , State V. (43 N. H. 83) , State V. (57 N. H. 123) Parkinson v. State (2 W. Va. 589) 871, 877 285, 290 420 933 582 66 699, 716 285, 291 148, 149 1012, 1017 Parks V. State (4 Texas Ap. 134) 148 Parkyns, Rex v. (13 Howell St. Tr. 63) 987 Parmentfir, Com'th v. (121 Mass. 354) 420 Parmer v. State (41 Ala. 416) 582, 606 Parnell, Reg. v. (14 Cox C. C. 508) 285 , State v. (16 Ark. 506) 85, 642, 653 Parrish, State v. (8 Humph. 80) 1038 Parry, Reg. v. (1 Howell St. Tr. 1095) 987 , Rex V. (Trem. P. C. 239) 3G5, 366 Parshall, People o. (6 Parker C. C. 129) 944 Parsons v. Bellows (6 N. H. 289) 93 , Reg. V. (Law Rep. 1 C. C. 24, note) 253, 254 V. State (2 Ind. 499) 395 , State V. (54 Iowa, 405) 403, 409 Partridge, Reg. v. (6 Cox C. C. 182) 420 Pater, Ex parte (5 B. & S. 299) 319 Patrick, Com'th v. (80 Kv. 605) 558 Pattee, Com'th u. (12 Cush. 501 ) 489, 503 Patten, State v. (10 La. An. 299) Patterson, State v. (7 Ire. 70) Patton, State v. (4 Ire. 16) 1012, 1017 Patty, United States v. (9 Bis. 429) 887 Paul V. Frazicr (3 Mass. 71) , State V. (G9 Maine, 215) , U. S. V. (6 Pet. 141 ) 58, 90, Pavne v. Commonwealth (31 Grat. 855) 672, 673, 676, V. State (74 Ind. 203) V. State (5 Texas Ap. 35) 206, 555, 558 Piiyson, State v. (37 Maine, 361) 777, 810, 812 Peabody, People v. (25 Wend. 472) 460, 467 Peachee v. State (63 Ind. 399) 977, 980 Pcachor v. State (61 Ala. 22) 582, 600 Pearce, Reg. v. (9 Car. & P. 667) 206, 538 1078 777, 794 294 420 ,254 , 677 652 pro INDEX TO THE CASES CITED. PLE Section Pearce, Reg. v. (9 Cox C. C. 258) 871 , State V. (14 Fla. 153) 247 , United States v. (2 McLean, 14) 885 Pearson, Com'th v. (3 Met. 449) 642, 655 , People V. (3 Scam. 270) 318 , Reg. «. (8 Car. &P. 119) 871 , Rex V. (1 Moody, 313) 582, 602 , State V. (2 N. H. 550) 442 Pease, States. (74 Ind. 26-3) 460 Peck, Reg. v. (9 A. & E. 686) 285, 291 V. State (2 Humph. 78) 337 Peckham, State v. (9 R. I. 1) 1012 Pedley, Rex v. (Cald. 218) 179, 180 Pedly, Rex v. (1 A. & E.'822) 90, 777, 785, 810, 811 Peebles v. Kittle (2 Johns. 363) 93 Pclfryman, Rex v. (2 Leach, 563) 933 Pelham, Reg. i>. (8 Q. B. 959 ; 2 Cox C. C. 17) 206, 218 Peltier, Rex v. (28 Howell St. Tr. 529 ; 2 Chit. Crim. Law, 52) 619, 627 Perabliton, Keg. v. (Law Rep. 2 C. C. 119; 12 Cox C. C. 607) Pender, State v. (83 N. C. 651) Penley, State v. (27 Conn. 587) Penn, U. S. «. (4 Hughes, 491) Pennaman v. State (58 Ga. 336 Pennell, State v. (56 Iowa, 29) Penniman, Com'th v. (8 Met. 519) 699 600 420 1034 871, 876 904, 905 642 Pennington, State v. (3 Head, 299) 777, 797 Penny, State v. (19 S. C. 218) 750, 757 Peoples, In re (47 Mich. 626) 520 Peppet V. Hearn (5 B. & Aid. 634) 93 Perdue v. Com'th (15 Norris, Pa. 311) 871 Perham, State v. (4 Oregon, 188) 415 _ . _ . jpgg 899 58, 997, 998, 1041 420 1065 642, 649 777, 826 Perin, Rex v. (2 Saund. 389 Perkins, Rex v. (4 Car. & P. 537) -. V. State (50 Ala. 154) V. State (67 Ind. 270) V. State (1 Texas Ap. 114) , State V. (6 Post. N. H. 9) , State V. (42 N. H. 464) Perrigo, Com'th v. (3 Met. Ky. 5) 489, 503 Perrot, Reg. v. (1 Howell St. Tr. 1315) 987 Perrott, Rex v. (2 M. & S. 379) 419, 420 Perry, Reg. v. (2 Cox C. C. 223) 111, 138, 141 V. State (43 Ala. 21 ) 1068 V. State (63 Ga. 402) 890, 893 , State V. (5 Jones, N. C. 252) 981, 982 , State V. (44 Texas, 100) 642, 650 Peteru. State (4 Har. &McH. 3) 582 Peters, Commonwealth v. (12 Met. 387) 206, 212, 1043 Peterson, People v. (9 Cal. 313) 403, 41 1 , U. S. u. (1 Woodb. &M. 305) 580 Petitt, Rex y. (Jebb, 151) 106 Pettes !,-. Com'th (126 Mass. 242) 460 Pettit, People v. (3 Johns. 511) 109, 206, 555, 558 Peverelly V. People (3 Parker C C. 59) 111, 180, 189, 1068, 1086 Pfomer v. People (4 Parker C. 0. 558) 520 Section Phalen v. Commonwealth ( 1 Rob. Va. 713) 672, 677 Phelps V. People (6 Hun, 428, affirmed 72 N. Y. 365) 460, 475 V. People (72 N. Y. 334 ; 6 Hun, 401) 582, 605 , People V. (49 How. Pr. 437) 582 , People V. (5 Wend. 9) 871, 876 , State V. (65 N. C. 450) 916 Philbrick, State v. (31 Maine, 401) 420 Philipps, Rex v. (6 East, 464) 378, 380, 621 Philley, State v. (67 Ind. 304) 205 Phillips y. Commonwealth (8 Wright, Pa. 197) 1012, 1017 , Com'th V. ( 1 6 Pick. 211) 642 , Reg. V. (2 Moody, 252) 699, 727 V. State (35 Ark. 384) 561 u. Welch (11 Nev. 187) 317 V. Welch (12 Nev. 158) 317, 319 Phillpot, Reg. V. (Dears. 179) 206, 218 Philpot, Com'th v. (130 Mass. 59) 977,979 Philpott, Reg. I). (6 Cox C. C. 140) 206, 218 Philpotts, Reg. v. (1 Car. & K. 112) 420, 423 Phipoe, Rex v. (2 Leach, 673) 206, 223 Pick, Rex v. (Trem. P. C. 240) 206, 208 Pickens, State v. (79 N. C. 652) 484, 485 Pickering, Commonwealth v. {8 Grat. 628) 871, 876 Picket V. State (22 Ohio State, 405) 642 Pickett V. People (8 Hun, 83) 672, 677 V. State (10 Texas Ap. 290) 263 , State V. (78 N. C. 458) 420 Pierce v. People (81 III. 98) 431 , Reg. V. (Bell C. C. 235 ; 8 Cox C. C. 344) V. State (67 Ind. 354) V. State (75 Ind. 199) V. State (12 Texas, 210) , State V. (8 Nev. 291) Pierson, State v. (59 Iowa, 271) Pike, Reg. v. (2 Moody, 70) , State V. (49 N. H. 399) Pilcher v. Stafford (4 B. & S. 775) 582 205 205 1031 520 582 460, 470 520 514 Pilkington, Rex v. (9 Howell St.Tr. 187) 929 , Rex V. (Trem. P. C. 182) 393, 929, 1049, 1068 Pim, Rex v. (Rnss. & Ry. 425) 460 Pinckard v. State (62 Ala. 167) 582, 600 Pines V. State (50 Ala. 153) 254 Pinhorn, Reg. v. (1 Cox C. C. 70) 520, 526 Pinkard v. State (30 Ga. 757) 1075 Pinney, Rex v. (5 Car. & P. 254) 680, 690 Pipes of Distilled Spirits, United States V. (5 Saw. 421 ) 973 Pirfenbrink, People v. (96 III. 68) 320 Pitt V. Knight (1 Saund. 86) 93 Pitzer, State v. (62 Ind. 362) 992 Plain V. State (60 Ga. 284) 206, 558 Plank Road v. Faulkner (21 Barb. 212) 983, 984 Plastridge v. State (6 R. I. 76) 777, 820 Plestow, Bex v. (1 Camp. 494) 420 637 PEA INDEX TO THE CASES CITED. QUI Section Plamer. Rex v. (Russ. & Ry. 264) 885 , United States v. (3 Oif. 1) 1068, 1086 , U. H. 1-. (3 Clif. 28) 89, 520, 538 Plumley v. State (8 Texas Ap. 529) 77 Pluramcr, Reg. v. ( 1 Car. & K. 600) 520, 530 Plunket, Rex v. (8 Howell St. Tr. 447) 987 Plunkett V. State (69 Ind. 68) 642 , State V. (64 Maine, .534) 642, 644 Plvm, Rex v. (Trem. P. C. 264) 997 Po'age V. State (3 Ohio State, 229) 460, 464, 472, 1078 Pointonw. Hill (12 Q. B. D. 306) 1004 Pollard, In re (Law Rep. 2 P. C. 106) 318, 319 Pollman, Rex v. (2 Camp. 229) 285, 312 Pomeroy i'. State (40 Ala. 63) 1068 Pond V. State (55 Ala. 196) 254 , United States v. (2 Curt. C. C. 265) 886, 1031 Pontius V. People (82 N. Y. 339) 206, 556, 558 Pool, State V. (2 Dev. 202) 1012, 1017 Pooley, Rex v. (2 Leach, 887) 885 , Kex u. (2 Leach, 900 ; 3 B. & P. 315) 582,885 Pope, Rex v. (1 Leach, 336) 582, 588 , State V. (9 S. C. 273) 180 Porter, Commonwealth y. (10 Met. 263) 642 , Reg. !'. (Leigh & C. 394 ; 9 Cox C. C. 449) 206,750,754 V. State (7 Baxter, 106) 263 V. State (1 Texas Ap. 477) 263, 267 , State V. (75 Misso. 171) 420 , United States v. (3 Day, 283) 888 Portis, Reg. i,-. (40 U. C. Q. B. 214) 460 Portland, &c. Railroad, State v. (58 Maine, 46) 1012, 1022 Posey, Commonwealth v. (4 Call, 109) 180 Post, Rex V. (Russ. & Ry. 101) 460, 465, 474 Poston V. State (12 Texas Ap. 408) 118, 558 Potter, People v. (35 Cal. 110) 403 V. State (39 Texas, 388) 582 V. State (9 Texas Ap. 55) 460 , State V. (28 Iowa, 554) 285, 312 Pottmeyer, State v. (30 Ind. 287) 699, 730 Potts, Rex V. (Russ. & Ry. 353) 115 Poulson, Rex v. (Trem. P. C. 103) 275 Powell, Com'th v. (2 Met. Ky. 10) 871 t>. Stiite (62 Ind. 531) 489,504 V. State (52 Wis. 217) 87, 254 , State V. (10 Rich. 373) 509 , State V. (28 Texas, 626) 871 Powers, People v. (2 Seld. 50) 94 r. State (80 Ind. 77) 520 V. State (87 Ind. 97) 460 , State V. (25 Conn. 48) 642 , State V. (12 Ire. 5) 629 Powner, Reg. «. ( 1 2 Cox C. C. 235 ) 460, 475 Prather, State v. (54 Ind. 63) 205 Pray, Com th v. (13 Pick. 359) 642, 655 , Peoples. (1 Mich. N. P. 69) 420 638 Section Prendergast, Rex v. (Jebb, 64) 871 Prescott, State v. (33 N. H. 212) 82, 489, 777, 805, 808 , United States v. (2 Abb. U. S. 169 ; 2 Bis. 325) 234 Presly, State v. (72 N. C. 204) 992 Presser v. People (98 111. 406) 942 Preston, Reg. v. (21 U. C. Q. B. 86) 460 Piieet). Com'th (21 Grat. 846) 1069 I'. Jenkings (Cro. Eliz. 865) 619 , Reg. V. (15 Cox C. C. 389) 956 , Rex V. (Trem. P. C. 75) 633, 634 , Rex V. (Trem. P. C. 177) 270 V. State (36 Missis. 531) 1075 V. State (13 N. H. 536) 642 V. State (35 Ohio State, 601) 520 , State !i. (12 Gill & J. 260) 489,501 , State V. (6 Halst. 203) 180, 1068 , State V. (6 La. An. 691) 1068 Priddy, State v. (4 Humph. 429) 222, 925 Pridmore, Reg. v. (3 Cox C. C. 578) 777, 794 Prim ;;. State (36 Ala. 244) 1012, 1015 V. State (32 Texas, 157) 582 Pringle, Reg. v. (2 Moodv, 127; 9 Car. & P. 408) ' 460, 471 Prior V. State (41 Ga. 155) 206, 558 Pritchard, Rex v. (7 Car. & P. 303) 1062 , State V. (35 Conn. 319) 420 Pritchford v. State (2 Texas Ap. 69) 1043 Prius, Commonwealth v. (9 Gray, 127) 285, 286, 291 Proud, Reg. v. (Law Rep. 1 C. C. 71 ; 10 Cox C. C. 455) 871 , Reg. V. (Leigh & C. 97 ; 9 Cox C. C. 22) 403,411 Pryor, State v. (30 Ind. 350) 420, 428 PuUe, State w. (12 Minn. 164) 285 Purchase, Reg. v. (Car. & M. 617) 403 , Reg. I.-. (15 Howell St. Tr. 651) 987 Purdom, State v. (3 Misso. 114) 489 Purse, State v. (4 McCord, 472) 777, 810, 811 Pusey, U. S. v. (6 Bankr. Reg. 284) 234 Putnam, Commonwealth v. (5 Casey, Pa. 296) 285, 292 Pym, Reg. i. (1 Cox C. C. 339) 115, 520, 5.'i9 Pyne, Rex v. (Trem. P. C. 264) 577 Quail, Reg. v. (4 Post. & F. 1076) 100 Quann, Commonwealth v. (2 Va. Cas. 89) 460, 470 Queen v. State (5 Har. & J. 232) 575 Quelch, Reg. v. (14 Howell St. Tr. 1067i 879 Quin, Commonwealth v. (5 Gray, 478) 642 Quincy, U. S. v. (6 Pet. 445) 760 Quinlan v. People (6 Parker C. C. 9) 58, 80, 933, 936 Quinn, Com'th v. (12 Gray, 178) 777, 820 V. State (35 Ind. 485) 384, 386 , State V. (47 Iowa, 368) 420, 430, 432 REA INDEX TO THE CASES CITED. EIC Section Qnirk, Rex v. (4 Went. PI. 46) 520 Quitzow V. State (1 Texas Ap. 47) 582, 1079 Quvise, People v. (56 Cal. 396) 582 Rabon, State v. (4 Rich. 260) 115, 520, 539 Radbourne, Rex v. (1 Leach, 457) 520 Radley, Reg. v. (1 Den. C. C. 450; 2 Car. & K. 974 ; 3 Cox C. C. 460) Radloff, Attorney-General v. (lOExch- 84) Raffcrty v. People (66 111. 118 582 972 1064 Ragan, State w. (22Misso. 459) 58,395,397 Raiford v. State (59 Ala. 106) 115 , State V. (7 Port. 101) 642 Raines, State v. (3 McCord, 533) .520 Rainey v. State (8 Texas Ap. 62) 263 Rainforth v. People (61 111. 365) 420 Raisler v. State (55 Ala. 64) 642 Raleigh, Rex v. (2 Howell St. Tr. 1 ) 987 Ramsden, Reg. o. (Ellis, B. & E. 949) 1012, 1017 Ramsey, Reg. v. (1 Cab. & E. 126) 243 V. State (43 Ala. 404) 890, 893 V. State (6 Eng. 35) 642, 647 Rand, State v. (33 N. H. 216) 254 Randall v. Commonwealth (24 Grat. 644) 206, 212, 558 , Com'th V. (4 Gray, 36) 206, 220 , Com'th V. (119 Mass. 107) 582, 605 , State t'. (2 Aikens, 89) 460, 467 , United States v. (Deady, 524) 885 Randies, State v. (7 Humph. 9) 391 Ranldn, State v. (3 S. C. 438) 777, 810, 816 Ransford, Reg. v. (13 Cox C. C. 9 ; 11 Eng. Rep. 363) 106, 963, 964 Riinson, Rex v. (2 Leach, 1090) 885 Ratcliffe's Case (2 Lewin, 57) 232 RatclilFe v. Com'th (5 Grat. 657) 699, 723 , Reg. K. (15 Cox C. C. 127) 904, 909 Raudnitz, Reg. v (4 Fost. & F. 165) 233 Rawlings v. State (2 Md. 201) 642 Rawson v. State (19 Conn. 292) 642, 647 Ray, Commonwealth v. (3 Gray, 441) 460 y. State (.50 Ala. 172) 489,506 Raymond, Commonwealth v. (97 Mass. 567) 763, 768, 769 r. People (9 Bradw. 344) 777, 782, 787 , State V. (20 Iowa, 582) 873 , State w. (11 Nev. 98) 520 Rea w. Hayden (3 Mass. 24) 1034 Ready. People (86 N. Y. 381) 672,677 , Reg. y. (1 Cox C. C. 65) 117 , Rex V. (Trem P. C. 559) 1053, 1082 , State V. (12 R. I. 135) 36.5,372 Reading, Rex v. (2 Leach, 590) 460, 468 Ready v. State (62 Ind. 1) 489, 504 Reakey, State y. (62 Misso. 40; 1 Misso. Ap. 3) 2, 520 Ream u. Commonwealth (3 S. & R. 207) 460, 474, 475 Reardon, Com'th v. (6 Cosh. 78) 148, 149 Reason, Rex y. (16 Howell St. Tr. 1) 520 Section Reckards, State v. (21 Minn. 47) 777, 794 Record, State v. (56 Ind. 107) 680, 687 Rector v. State (1 Eng. 187) 1043 Reddie y. Scoolt (Peake, 240) 294 Redhead, Rex u. (25 Howell St. Tr. 1003) 285,942 Redmond, Rex v. (28 Howell St. Tr. 1271) 987 V. State (36 Ark. 58) 642, 652 y. State (35 Ohio State, 81) 420 Reed, Commonwealth v. (10 Casey, Pa. 275) 777, 1012, 1028, 1046 y. People (1 Parker C.C. 481) 512 , People V. (47 Barb. 2.35) 438 , Reg. V. (12 Cox C. C. 1 ) 777, 802 , Rex V. (7 Car. & P. 848) 420, 425 y. State (8 Ind. 200) 520 — — y. State (1 Texas Ap. 1) 489, 503 , State V. (40 Vt. 603) 553 , United States v. (1 Lowell, 232) 973 Reese, State y. (83 N. C. 637) 420 Reeves, Rex i^. (26 Howell St. Tr. 530) 619, 621 , Rex y. (2 Leach, 808) 460 V. State (20 Ala. 33) 5S, 206 y. State (7 Texas Ap. 276) 254 y. State (12 Texas Ap. 199) 489, 502 V. Townsend (2 Zab. 396) 93 Regan, State v. (67 Maine, 380) 642, 645 Reich y. State (63 Ga: 616) 642, 652 Reid, Reg. v. (2 Den. C. C. 88 ; 5 Cox C. C. 104) 933 y. State (53 Ala. 402) 619 y. State (8 Texas Ap. 430) 699, 717 , State V. (20 Iowa, 413) 58, 254 Reiker, Respublica v. (3 Yeates, 282) 742, 745 Reininghaus, State v. (43 Iowa, 149) 777, 820 Reiter, Commonwealth v. (28 Smith, Pa. 161) 680,690 Rcn,shaw, Reg. v. (2 Cox C. C. 285) 218 Reside y. State (10 Texas Ap. 675) 403 Reyburn, Territory v. (McCahon, 134) 58, 997, 1001 , United States y. (6 Pet. 352) 760 Reynolds, Com'th v. (14 Gray, 87) 325, 328 — '—, Com'th V. (122 Mass. 454) 254, 255 y. People (17 Abb, Pr. 413) 520 , State V. (47 Vt. 297) 642, 644 Rhodes, In re (65 N. C. 518) 317 Ribeo, State y. (27 Minn. 315) 460 Rice, Com'th v. (9 Met. 253) 136, 997 y. People (15 Mich. 9) 206, 558 , Reg. V. (Bell C. C. 87 ; 8 Cox C. C. 119) ,582, 597 , Reg. y. (Law Rep. 1 C. C. 21 ; 10 Cox C. C. 155) 777, 782 y. State (16 Ind. 298) 205 V. State (3 Kan. 141 ) 58, 489, 503 y. State (8 Misso. 561) 520, 529 y. State (1 Yerg. 432) 460, 471 Richards y, Foulks (3 Ohio, 66) 93 , People y. (1 Mich. 216 285, 29) 639 KOB INDEX TO THE CASES CITED. EOS Section Richards, Beg. v. (2 Q. B. D. 311 ; 13 CoxC. C. 611) 118,520,539 , Rex V. (1 Moody & R, 177) 699, 727 , State y. (33 La. An. 1294) 206, 216 Richardson, Com'th v. (126 Mass. 34) 881 V. Touts (U Ind. 466) 294 V. Hickman (22 Ind. 244) 93 V. People (31 111. 170) 1065 , Reg. V. (46 U. C. Q. B. 375) 206 , Rex V. (1 Moody & R. 402) 285, 291 , Rex V. (4 Went. PI. 22) 476 V. State (5 Texas Ap. 470) 364, 365, 371 , State V. (38 N. H. 208) 838 Richie v. State (58 Ind. 355) 904, 905 Richter, State v. (23 Minn. 81) 642, 652 Ricker, State v. (29 Maine, 84) 180, 190 Rickey, State v. (4 Halst. 293) 285 Ridenour K. State (65 Ind. 411) 263 Ridley, Rex v. (2 Camp. 650) 218, 520, 530, 750, 751 , State V. (48 Iowa, 370) 254 Riggs, State w. (22 Vt. 321) 777,833 Riley, People v. (5 Parker C. C. 401) 1068, 1082 V. State (43 Missis. 397) 13, 642, 649 V. State (32 Texas, 763) 403 Einaldi, Reg. v. (Leigh & C. 330 ; 9 Cox C. C. 391) 460, 478 Ring, State v. (29 Minn. 78) 403, 409 Ringrose, Rex v. (Trem. P. C. 33) 742, 743 Risley, State v. (72 Misso. 609) 1012, 1015 Rispal, Rex v. (3 Bur. 1320) 285, 300 Ritchie, State v. (2 Dev, & Bat. 29) 489 Roach, Commonwealth v. (1 Grat. 561) 871 Robb, Reg. v. (4 Post. & F. 59) 944 Robberson v. State (3 Texas Ap. 502) 484 Bobbins v. Gorham (25 N. Y. 588) 318 V. State (8 Ohio State, 131 ) 58, 520, 533, 540 , State V. (9 Ire. 356) 575 Roberts v. Com'th (10 Leigh, 686)489,491 , Commonwealth v. (1 Cush. 505) 642 , Com'th u. (108 Mass. 296) 520, 539 , Com'th V. (132 Mass. 267) 777, 820 , Reg. t). (2 Car. &K. 607) 871 , Reg. V. (7 Cox C. C. 39 ; Dears. 539 ; 33 Eng. L. & Eq. 553 ) 1 11 , 343 , Reg. V. (7 Cox C. C. 422) 460, 472 , Rex V. (1 Camp. 399) 285, 291 , Rex i: (Trem. P. C. 332) 860 V. State (CI Ala. 401) 582 V. State (21 Ark. 183) 929 V. State (55 Missis. 421 ) 254 V. State (32 Ohio State, 171) 489, 491 , State V. (26 Maine, 263) 206, 838,839 , State V. (81 N. C. 605) 699, 716 , State V. (52 N. H. 492) 206, 838 Robertson, Reg. v. (Leigh & C. 483 ; 10 Cox C. C. 9) 977, 980 , State V. (32 Texas, 159) 254 Robey, State v. (8 Nev. 312) 206, 558 Robinius v. State (63 Ind. 235) 642, 652 Robins, Reg. v. (1 Car. & K. 456) 944, 945 640 Sectiok Robinson ?;. Commonwealth (32 Grat. 866) 582, 1043, 1044 V. Com'th (101 Mass. 27) 977, 979 , Commonwealth v. (126 Mass. 259) 81 - V. Holt (39 N. H. 557) -, People V. (2 Parker C. C. 235) 481 520, 533 916 , Reg. V. (4 Post. & P. 43) , Reg. V. (Leigh & C. 604 ; 10 Cox C. C. 107) 344 , Rex V. (2 Bur. 799) 323 , Rex V. (2 Leach, 749) 977 V. State (57 Ind. 113) 148 V. State (5 Pike, 659) 206, 555, 558 , State V. (9 Post. N. H. 274) 482, 483 , State V. (29 La. An. 364) 933 , State V. (19 Texas, 478) 642 Robson, Reg. v. (2 Moody, 182; 9 Car. & P. 423) 460, 470 Roby, Com'th v. (12 Pick. 496) 1043, 1068 Rocco V. State (37 Missis. 357) 1059 Roche, Rex v. (28 Howell St. Tr. 754) 987 Rockwell u. Nearing (35 N. Y. 302) 172 Roderigas, People v. (49 Cal. 9) 944, 946 , State V. (7 Nev. 328) 206, 558 Rodgers v. State (26 Ala. 76) 489, 506 Rodriguez, People v. (10 Cal. 50) 520 Roe, i-eople v. (5 Parker C. C. 231) 1046 , Reg. V. (11 Cox C. C. 554) 582 , State V. (12 Vt. 93) 180, 183 Roehm, State v. (61 Misso. 82) 642, 653 Rogan, Hex v. (Jebb, 62) 933 Rogers, Com'th v. (1 S. & R. 124) 442 w. State (11 Texas Ap. 608) 460 , United States i;. (4 How. U. S. 567; Hemp. 450) 1034 Rogier, Rex v. (1 B. & C. 272) 777, 805 Rohrer v. State (13 Texas Ap. 163) 871, 874 Rolland v. Com'th (1 Norris, Pa. 306) 254 Rollins, State v. (8 N. H. 550) 206, 569 , State y. (55 N. H. 101 ) 860 Ronan, Com'th v. (126 Mass. 59) 777, 820 Rooker v. State (65 Ind. 86) 460 Rookwood, Rex v. (13 Howell St. Tr. 139) 987 Root V. State (10 Gill & J. 374) 148, 159 Roper, State v. (1 Dev. & Bat. 208) 80, 777, 802 , State V. (6 Dev. & Bat. 208) 43 Roseberry, v. State (.50 Ala. 160) 577 Roseborough v. State (43 Texas, 570) 1076 Rosekrans v. People (5 Thomp. & C. 467; 3 Hun, 287) 460 Rosenthal, Reg. v. (Law Rep. 1 Q. B. 93) 777, 801 Rosewell, Rex v. (10 Howell St. Tr. 147) 987 Rosinski, Rex v. (1 Moody, 19; 1 Lewin, 11) 206,223 Ross's Case (2 Pick. 165) 97 Ross, Com'th v. (2 Mass. 373) 460, 464 , Respublica i'. (2 Yeates, 1) 285, 290 V. State (15 Fla. ^5) 569 RTA INDEX TO THE CASES CITED. SAIT Section Eoss, State v. (26 Misso. 260) 735 Roth w. State (10 Texas Ap. 27) 582 Rountree w. State (58 Ala. 381) 582 V. State (10 Texas Ap. 110) 699, 717 V. United States (1 Pin. 59) 206, 838, 839 Rouvke, Rex u. (28 Howell St. Tr. 926) 987 Rouse, People v. (2 Mich. N. P. 209) .'564 , Rex V. (9 Howell St. Tr. 637) 9R7 Rowan, Com'th v. (3 Dana, 395) 378, 381 , Rex V. (22 Howell St. Tr. 1034) 619, 621 V. State (30 Wis. 129) 520 Rowe, Ex parte (7 Cal. 175) 321 Rowed, Reg. v. (3 Q. B. 180) 156 Rowland v. State (55 Ala. 210) 254 B. Veale (Cowp. 18) 93 Rowlands, Reg. v. (2 Den. 0. C. 364 ; 5 Cox C. C. 436 ; 17 Q. B. 671) 285, 308 Rowley v. Howard (23 Cal. 401) 93 , State V. (12 Conn. 101 ) 285, 291 Royal V. State (9 Texas, 449) 489, 491 Roy all, United States v. (3 Cranch C. C. 618) 777, 792 , U. S. V. (3 Cranch C. C. 620) 792 Royce, Rex v. (4 Bur. 2073) 929 Roys V. Lull (9 Wis. 324) 93 Ruby V. State (7 Misso. 206) 206, 215 , State V. (68 Maine, .543) 777, 820 Rudge, Reg. y. (13 Cox C. C. 17) 403 Rufer V. State (25 Ohio State, 464) 520, 540 Rage v. State (62 Ind. 388) 642,654 Ruggles, Com'th v. (10 Mass. 391) 440 , People V. (8 Johns. 290) 241, 243 Ruhnke, State v. (27 Minn. 309) 484, 485 Rulloff, People v. (3 Parker C. C.401) 520, 1081 Rumble, Reg. d. (4 Tost. & F. 175) 760 Rumford Chemical Works, Common- wealth V. (16 Gray, 231) 777, 828 Rundle, Reg. v. (Dears. 482 ; 6 Cox C. C. 549) 754 Runnels, Com'th w. (10 Mass. 518) 393, 929 Rupe, State w. (41 Texas, 33) 520 Rupp, Com'th V. (9 Watts, 114) 680, 691 Rushworth, Rex v. (Russ. & Ry. 317) 460, 470 Russell, Reg. a. (3 Ellis & B. 942) 1012, 1029 , Rex V. (6 B. & C. 566) 1012, 1026 , Rex V. (6 East, 427) 82, 1012, 1015 , Rex V. (9 Howell St. Tr. 578) 987 , Rex V. (1 Moody, 356) 953 , State V. (45 K H. 83) 929 Ruth, State v. (21 Kan. 583) 904, 905 Rutherford, State v. (13 Texas, 24) 206, 558, 1031 Rutter, Rex v. (Trem. P. C. 127; 460, 463 Ryalls V. Reg. (3 Cox C. C. 36) 871, 1068 V. Reg. (3 Cox C. C. 254) 871 Ryan, Commonwealth v. (9 Gray, 137) 642 V. State (52 Ind. 167) 205 , State V. (13 Minn. 370; 520 41 Section Rye V. State (8 Texas Ap. 153) 79 Ryland, Reg. v. (10 Cox C. C. 569; Law Rep. 1 C. C. 99) 58, 750, 751 , Reg. u. (11 Cox C. C. 101) 904,909 Rymes, Reg. v. (3 Car. & K. 326) 916, 918 S., Reg. V. (5 Cox C. C. 279) 206, 750, 751 S. L , State v. (2 Tyler, 249) 582, 916 Sabine, Rex v. (4 Went. PI. 203) 629 Sacheverell, Rex v. (10 Howell St. Tr. 30) 929 Sacramento, U. S. v. (2 Mon. Ter. 239) 642 Sadler, Rex v. (2 Chit. 519) 439 Sainsbury, Rex v. (4 T. R. 451) 680, 691 St. George, Reg. v. (9 Car. & P. 483) 111, 206, 214 St. Giles, Hex v. (5 M. & S. 260) 1012, 1017 Sainthill, Reg. v. (2 Ld. Raym. 1174) 1012, 1023 Sallie V. State (39 Ala. 691) 582, 588, 593 Salop, Rex v. (13 East, 95) 1012, 1023 Salter v. Howard (43 Ga. 601) 303 Sam V. State (31 Missis. 480) 10.34, 1056 , State «. (2 Dev. 567) 206, 904, 910 Samo V. Reg. (2 Cox C. C. 178) 394 Sampson, Commonwealth v. (97 Mass. 407) 663, 669 Sanborn, Commonwealth v. (14 Gray, 393) 206, 212, 215, 933, 935, 937 Sanchar's Case (9 Co. 114 a) 1068 Sanchar's Case (9 Co. 117 a) 116 Sanchez i;. People (22 N. Y. 147) 520 Sanders v. State (55 Ala. 183) 58, 680, 691 Sandford, People v. (43 Cal. 29) 520 V. State (6 Eng. 328) 1068 Sands, People v. (1 Johns. 78) 777, 788 Sandy v. State (60 Ala. 18) 992 V. State (60 Ala. 58) 420 Sandys, Reg. v. (2 Moody, 227 ; Car. & M. 345) 520, 533 , Rex V. (Jebb, 166) 737 w. Small (3 Q. B. D. 449) 763,771 Sanford v. State (12 Texas Ap. 196) 206, 904, 910 Sanqnire, Rex v. (2 Howell St. Tr. 743) 58, 520 Santo V. State (2 Iowa, 165) 642, 643, 645 Sarah v. State (28 Missis. 267) 111, 206, 213, 558 Sargent, Commonwealth v. (129 Mass. 115) 871, 874 Satchell, Reg. v. (2 Cox C. C. 137) 871 V. State (1 Texas Ap. 438) 485 Sater v. State (56 Ind. 378) 1038 Satterthwaite v. Dewhurst (4 Doug. 315) 294 Saunders, Reg. w. (3 Dy. 254 a) 116 , Reg. V. (2 Plow. 473) 116, 520, 533, 539 , Reg. V. (1 Q. B. D. 15; 13 Cox C.C.I 16) 629,777,799 , Reg. V. (Trem. P. C. 100) 276 , State V. (63 Misso. 482) 420 641 SEE INDEX TO THE CASES CITED. SHE Section Sauserv. People (8 Hun, 302) 881 Savage, State v. (32 Maine, 583) 582 Saviers, People v. (14 Cal. 29) 58, 489, 490, 507 Savoye, State v. (48 Iowa, 562) 285, 294 Sawe V. King (1 Saund, 81) 43 Sawyer, Reg. v. (2 Car. & K. 101) 47, 89, 520 538 Saxon, Rex v. (Trem. P. C. 157) 875, 'l068 Saxton, State v. (78 N. C. 564) 904, 905 Saylor, State v. (6 Lea, 586) 58, 206, 555, 558 Scaggs, State v. (6 Blackf. 37) 929 , State V. (33 Misso. 92) 489, 500 Scammon, State v. (2 Fost. N. H. 44) 974 Scannel, Coin'th v. (11 Gush. 547) 904, 905 Scarborough v. State (46 Ga. 26) 777, 782 Schatz, State v. (71 Misso. 502) 582, 599 Schienemiin, State v. (64 Misso. 386) 365 Schill, State n. (27 Iowa, 263) 871 Schilling, State v. (14 Iowa, 455) 777, 820 Schirmer v. People (33 111. 276) 1068 Schlesinger, Reg. v. (2 Cox C. C. 200) 871 Schlicht V. State (56 Ind. 173) 642 Schlottman, Slate v. (52 Misso. 164) 859 Schmidt v. State (78 Ind. 41) 63, 763, 768 Schultz. State v. (57 Ind. 19) 871 Schuster v. State (48 Ala. 199) 58, 489, 506 Schutze V. Stiite (30 Texas, 508) 170 Schwartz, People v. (32 Cal. 160) 180, 185 Schweiter, State v. (27 Kan. 499) 642 Scidmore v. Smith (13 Johns. 322) 303 Scofield, Rex r. (Cald. 397) 179,180 Scoggins V. State (32 Ark. 205) 881 Scott, Com'th V. (1 Rob. Va. 695) 342 , Reg. V. (Dears. & B. 47 ; 1 Cox C. C. 164) 237 Reg. V. (2 Q. B. D. 415 ; 13 Cox C. C. 594) , Rex V. (3 Bur. 1262) , Rex V. ( 1 Leach, 401 ) , Rex i: (Russ. & Ry. 415) V. State (40 Texas, 503) — V. State (12 Texas Ap. 31) 871, 875 929 116,333 904, 908 263 206, 933, 937 58, 699 992 , State V. (2 Dev. & Bat. 35) , State i: (68 Ind. 267) , State u. (72 N. C. 461) 206, 904, 910 Scotton, Reg. v. (5 Q. B. 493) 871 Scribner v. State (12 Texas Ap. 173) 489, 493 , State V. (2 Gill & J. 246) 672, 677 Scudder, Rex v. (1 Moody, 216 ; 3 Car. & P. 605) 138, 141, 142 V. State (62 Ind. 13) 285, 288 Scully V. Com'th (11 Casey, Pa. 511) 1069 Seale, Rex v. (8 East, 568) 672 Searcv v. State (4 Texas, 450) 680, 690 i. State (1 Texas Ap. 440) 254 Sears, State v. (71 N. C. 295) 600 Seay, State v. (3 Stew. 123) 582, 608 Sedberry v. State (14 Texas Ap. 233) 642, 649 Seely, State v. (30 Ark. 162) 206 642 Section Seibright v. State (2 W. Va. 591) 765 Sellers v. State (49 Ala. 357) 916 Selway, Rexv. (2 Chit. 522) 509 Senior, Reg. v. (Leigh & C. 401 ; 9 Cox C. C. 469) 871 Senterfit v. State (41 Texas, 186) 164, 168 Serjeant, Rex v. (Ryan & Moody N. P. 352) 285, 296 Serva, Reg. v. (2 Car. & K. 53 ; 1 Cox C. C. 292) 89, 520, 538 Seraillea, Territory v. (1 New Mex. 119) 58 Seventeen Empty Barrels, United States V. (3 Dil. 285) Seward, Rex w. (1 A. & E. 706) Sewell, Reg. u. (8 Q. B. 161) Seymour v. State (51 Ala. 52) Shaber, People v. (32 Cal. 36) Shadbolt, Rex v. (5 Car. & P. 504) Shafer v. State (18 Ind. 444) Shaffer v. State (82 Ind. 221) Shaftesbury, Rex v. (8 Howell St. Tr. 759) Shanks v. State (51 Missis. 464) V. State (25 Texas Supp. 326, 973 285 323 509 254 206, 838, 839 60 420 987 376 460, 1065 Shannon v. People (5 Mich. 71) 206, 218 , Rex V. (Jebb, 209) 111, 206, 21.3, 226 Sharp V. State (6 Texas Ap. 650) 115 Sharpe, Reg. v. (8 Car. & P. 436) 460, 475 , Reg. V. (Dears. & B. 160; 7 Cox C. C. 214) 957 , Rex V. (I Moody, 125) 885 Sharpless, Commonwealth i'. (2 S. & R. 91) 58, 629, 631 Shattuek, Com'th v. (4 Cush. 141) 442, 444 Shaw's Case (1 Lewin, 280) 890, 893, 894 Shaw, Com'th v. (4 Allen, 308) 592 , Com'th V. (7 Met. 52) 384, 386, 388 , People V. (1 Caines, 125) 442 , Reg. V. (Leigh & C. 579 ; 10 Cox C. C. 66) 871 , Reg. V. (23 U. C. Q. B. 616) 206 , Rex V. (Russ. & Ry. 526) 890, 893 V. State (18 Ala. 547) 206. 558 V. State (56 Ind. 188) 642 , State V. (2 Dev. 198) 642 , State V. (3 Ire. 20) _ 844, 845 520, 582 Shea, Com'th ?i. (115 Mass. 102) 777, 820 V. Reg. (3 Cox C. C. 141) 206, 212, 558 Sheares, Rex v. (27 Howell St. Tr. 255) 987 Shed, Commonwealth v. (1 Mass. 227) 415 Shedd, Com'th v. (7 Cush. 514) 285, 291 Sheehan, Commonwealth w. (105 Mass. 174) 642,644 Sheen, Rex v. (2 Car. & P. 634) 1043 Sheers, Rex v. (4 Went. PI. 94) 312 Shellard, Reg. v. (9 Car. & P. 277) 285, 942 Shelledy, State v. (8 Iowa, 477) 520 Shelters, State v. (51 Vt. 102) 460 Shay V. People (4 Parker C. C.353) SLA INDEX TO THE CASES CITED. SMI Section Shepard, Com'th v. (1 Allen, 575) 403, 411 , State V. (10 Iowa, 126) 556 Shepherd, Rex v. (1 Leach, 539) 699, 717 V. State (64 Ind. 43) 58, 520, 540 V. State (42 Texas, 501 ) 1 1 1, 254 Sheppard v. State (42 Ala. 531) 582 V. State (1 Texas Ap. 304) 489, 493 Sherban v. Commonwealth (8 Watts, 212) 58, 395, 398 Shei-iffs. James (1 Bing. 341) 172 , State V. (1 Mill, 145) 318 Sherley, Rex v. (Trem. P. C. 178) 929 Sheilouk, Reg. v. (Law Rep. 1 C. C. 20; 10 Cox C. C. 170) 844, 845 Sherman, Commonwealth o. (105 Mass. 169) 111, 582, 612 V. State (17 Fla. 888) 206, 558 SherriU, State v. (81 N. C. 550) 992 Sherwood v. Titman (5 Smith, Pa. 77) 294 , State V. (75 Ind. 15) 138, 142 Shields, State v. (8 Blackf. 151) 680, 687 Shinn V. State (57 Ind. 144) 460 V. State (64 Ind. 13) 933 0. State (63 Ind. 423) 205 Sliipiev^, Rex v. (4 Doug. 73; 21 Howell St. Tr. 847) 619, 621 Sholes, Com'th «. (13 Allen, 554) 138, 142 Shooter, State v. (8 Rich. 72) 285, 300 Short, State v. (54 Iowa, 392) 254 Shotwell V. State (37 Misso. 359) 141 Shropshire v. State (7 Eng. 190) 520 Shuler, People v. (23 Cal. 490) 933 Siiles, State v. (64 Misso. 333) 520 Sidnijy, Rex u. (9 Howell St. Tr. 818) 987 , Ilex u. (6 Went. PI. 391) 274 Sigmon, State v. (70 N. C. 66) 929 Sikes V State (67 Ala. 77) 489, 504 V State (30 Ark. 496) 735 SilhofFer, State v. (48 low.a, 283) 642 SiU V. Reg. (1 Ellis & B. 553 ; Dears. 132) 420 Silsbee, Com'th v. (9 Mass. 417) 384, 385 Silversides, Reg. u. (3 Q. B. 406) 975 Simmons v. State (12 Misso. 268) 997, 1001 , United States v. (96 U. S. 360) 973 Sinims v. State (2 Texiis Ap. 110) 254 , U. S. t. (I Cranch C.C. 252) 489,503 Simonds, Com'th u. (11 Gray, 306) 465 , Com'th «. (14 Gray, 59) 460,466 Simons, People v. (1 Wheeler Crim. Cas. 339) 619 , State V. (70 N. C. 336) 582 Simpson, Com'th v. (9 Met. 138) 582 u. State (5 Yerg. 356) 925 , State V. (2 Hawks, 460) 699, 703 , Staie V. (3 Hnwks, 620) 272 , State V. (73 N. C. 269) 699, 712 Sinclair's Case (2 Lewin, 49) 111, 206, 558 Sinilercome, Rex v. (5 Howell St. Tr. 841) 987 Skelley, Com'th v. (10 Gray, 464) 777, 820 Skiflfu. People (2 Parker C. C. 139) 420 Skutt, Rex V. (1 Leach, 106) 885 Slack, Commonwealths. (19 Pick. 304) 958 Section Slaren, Ex parte (3 Texas Ap. 662) 136 Sleep, Reg. v. (8 Cox C. C. 472) 975 Sloan, Commonwealth v. (4 Ciish. 52) 642 V. Hubbard (34 Ohio State, 583) 172 V. State (42 Ind. 570) 205 , State V. (55 Iowa, 217) 881 Sloanaker, State v. (1 Houst. Ciim. 62) 196 Slocum, State v. (8 Blackf. 315) 699 Slusser v. State (71 Ind. 280) 205 Small, State v. (31 Texas, 184) 484 Smalls, State v. (11 S. C. 262) 247 Smallwood, State v. (68 Misso. 192) 420 Smart, Commonwealth v. (6 Gray, 15) 403 Smison, Reg. u. (1 Cox C. C. 188) 750, 757 Smith V. Commonwealth (6 B. Monr. 21) 43, 82, 777, 794, 795 V. Com'th (4 Smith, Pa. 209) 106, 148 , Com'th V. (11 Allen, 243) 968 , Com'th V. (6 Cush. 80) 777, 833 , Com'th K. (1 Mass. 245) 582 , Com'th w. (102 Mass. 144) 777, 820 , Com'th V. (103 Mass. 444) 763, 770 , Com'th V. (Ill Mass. 429) 582, 588 , Com'th V. (116 Mass. 40) 403, 407 V. Kingsley (19 Wend. 620) 1087 V. People (25 III. 17) 285, 294 f. People (47 N. Y. 303) 420,423 V. People (1 Parker C. C. 317) 871 , People V. (1 Parker C. C. 329) 58, 254 , People V. (5 Parker C. C. 490) 420 , Reg. V. (2 Cox C. C. 358) 460 , Reg. V. (3 Cox C. C. 443) 580 , Reg. V. (6 Cox C. C. 31 ) 481 , Reg. V. (6 Cox C. C. 314) 420 , Reg. V. (14 Cox C. C. 398) 206, 218, 750, 754 , Rex V. (2 Car. &P. 449) 206, 750, 751 , Rex V. (4 Car. & P. 569) 180 , Rex V. (5 Car. & P. 107 ; 1 Moody, 314) 975 , Rex V. (20 Howell St. Tr. 1225) 247, 248 , Rex 0. (2 Leach, 956 ; Russ. & Ry. 5) 337 , Rex f. (Trem. P. C. 268) 273 V. State (55 Ala. 59) 582 V. State (63 Ala. 55) 365 V. State (60 fia. 430) 582, 588 V. State (6 Gill, 425) 43, 777, 782, 785 V. State (71 Ind. 250) 365 V. State (1 Kan. 365) 520 V. State (22 Ohio State, 539) 777 V. State (42 Texas, 464) 263 w. State (5 Texas Ap. 318) 997,999 V. State (9 Texas Ap. 475) 206, 216 V. State (10 Texas Ap. 413) 415 , State V. (8 Blackf. 489) 420 , State V. (3 Hawks, 378) 58, 763, 765 , State w. (3 Heisk. 465) 376 , State V. (74 Ind. 557) 205 , State V. (2 Ire. 127) 442 , State !>. (13 Kan. 274) 60, 68, 403, 409 , State V. (64 Maine, 423) 642, 657 , State V. (65 Maine, 257) 58, 520, 530 643 SPI INDEX TO THE CASES CITED. STE Smith, State v. (67 Maine, 328) Section 58, 520, 543, 1078 395, 397 750, 757 272 680, 691 871 , State V. (2i Misso. 356) , State V. 166 Misso. 92) , State w. (75N. C. 141) , State V. (20 N. H. 399) , State V. (43 Texas, 655) , United States v. (2 Bond, 323) 973 Smithei-man v. State (63 Ala. 24) 582, 600 Smouse, State v. (50 Iowa, 43) 70 Smythies, Reg. v. (4 Cox C. C. 94 ; 1 Den. C. C. 498 ; 2 Car. & K. 878 ; 2 Moody, 186) 460, 475, 879 Snead, Rex v. (2 Show. 339) 272 Sneed v. People (38 Mich. 248) 60, 68, 520, 542 , State V. (84 N. C. 816) 680 Snell V. State (50 Ga. 219) 403 , State V. (9 R. I. 112) 403 Snelling, Com'th u. (15 Pick. 321) 619, 622 Snow, Com'th v. (14 Gray, 20) 642, 655 , Commonwealth «. (116 Mass. 47) 138, 139, 142 , Rex V. (Trera. P. C. 59) 633, 940 V. State (54 Ala. 138) 254 V. State (6 Texas Ap. 284) 582, 592 , State V. (3 R, I. 64) 642, 645 Snowden v. State (17 Pla. 386) 680, 691 Snyder K. State (59 Ind. 105) 58, 520, 533, 540 , State w. (66 Ind. 203) 420 , State V. (20 Kan. 306) 420 , State V. (50 N. H. 150) 582 Society for Useful Manuf., State v. (13 Vroom, 504) 777, 828 Somerton, Rex v. (7 B. & C. 463) 582, 584 Somerville, Com'th v. (1 Va. Cas. 164) 742 Sommers, State v. (3 Vt. 156) 642 Sorocold, Rex v. (Trem. P. C. 64) 633, 940 Sotherton, Rex v. (Trem. P. C. 155) 874 Soule, Com'th v. (2 Met. 21) 699, 720 Southerton, Rex v. (6 East, 126) 977 Southworth v. State (5 Conn. 325) 206 Sowle, Com'th u. (9 Gray, 304) 699, 711 Spalding, United States v. (4 Cranch C. C. 616) Sparks, State v. (60 Ind. 298) 285 442, 699, 727, 992 890, 895 272, 276 582 987 , State !). (78 Ind. 166) Speer, Com'th i'. (2 Va. Cas. 65) Speers v. Com'th (17 Grat. 570) Speke, Rex v. (Trem. P. C. 3) Spence, Reg. v. (1 Cox C. C. 352) 520, 530 , Reg. ti. (11 U. C. Q. B. 31) 1012, 1015 Spencer, R«x v. (Trem. P. C. 224) 779 V. State (13 Ohio, 401) 254 Spiller, Hex v. (5 Car. & P. 333) 520, 529 , Rex V. (2 Show. 207) 633, 634 Spilling, Reg. v. (2 Moody & R. 107) 520, Spilman, Commonwealth Mass. 327) Spilsbury v. Micklethwaite (1 Taunt. 147) 644 529 (124 460, 472 319 1043 C. 384, 386 Section Spirits, United States v. (4 Ben. 471) 973 Spragg, Rex v. (2 Bur. 993) 285, 300 Sprague, Com'th u. (128 Mass. 75) 642, 644 , State V. (4 R. I. 257) 278 Spratt, Com'th v. (14 Philad. 365) 777, 802 Springfield, Commonwealth v. (7 Mass. 9) 1012, 1017 Sprinkle, State v. (7 Humph. 36) 509 , State V. (65 N. C. 463) 206, 212 Spurbeck, State v. (44 Iowa, 667) 82, 777, 782, 784 Squire, Com'th v. (1 Met. 258) 180, 182 Squires, Commonwealth v. (97 Mass. 59) 148, 904, 905 V. State (59 Ind. 261 ) 992 , State V. (11 N. H. 37) 254 Staaden v. People (82 111. 432) 180, 185 Staats, U. S. w. (8How. U. S. 41) 867 Stabler v. Com'th (14 Norris, Pa. 318) 558 Stafford, Com'th ?■. (12 Cush. 619) 520 Stahl, Com'th v. (7 Allen, 304) 777, 805 Stains, Rex v. (Trem. P. C. 207) 1012, 1023 Staley, State v. (3 Lea, 565) 642, 651 Stamey, State v. (71 N. C. 202) 642, 654 Standi'fer, State v. (5 Port. 523) Standish, People u. (6 Parker C 111) Stanglein v. State (17 Ohio State, 453) 881 Stanley, Rex v. (Russ. & Ry. 432) 890, 893 V. State (24 Ohio State, 166) 582, 608 , State V. (33 Iowa, 526) 520, 540 Stannard, Reg. v. (Leigh & C. 349 ; 9 Cox C. C. 405) 777, 782 Stanton, State v. (37 Conn. 421) 763, 771 , State V. (1 Ire. 424) 460 Staples, State v. (45 Maine, 320) 642 Stapleton, Rex v. (8 Howell St. Tr. 502) 987 Stapp, State v. (29 Iowa, 551) 777, 820 Starks v. State (7 Baxter, 64) 696 Staton, State v. (66 N. C. 640) 699, 716 , United States v (2 Flip. 319) 973 Stead, Rex v. (8 T. R. 142) 1012, 1015 Stearns, Com'th v. (2 Met. 343) 403, 407 , Commonwealth v. (10 Met. 256) 341 , State I'. ( 11 Post. N. H. 106) 489, 507 Stears, Territory v. (2 Mon. Ter. 324) 520 Steedman v. State (11 Ohio, 82) 460 Steel, Reg. v. (2 Moody, 246 ; Car. & M. 337) 285, 291 Steele K. People (45 111. 152) 1065 , State V. (1 Yerg. 394) 871 Steeley, State v. (65 Misso. 218) 520 Steels, Reg. v. (11 Cox C. C. 5) 420 Steerman v. State (10 Misso. 503) 80, 582, 608 Stegar v. State (39 Ga. 583) Stein, People o. (1 Parker C. C. 202) Stephen v. Commonwealth (2 Leigh, 759) 777, 810, 816 V. State (11 Ga. 225) 904, 905 Stephens v. People (4 Parker C. C. 396) 520, 533, 1068, 1082 , Reg. V. (7 B. & S. 710) 1012, 1026 933 916 STO INDEX TO THE CASES CITED. SUN Stephens, State v. (63 Ind. 542) Section 58, 148, 151, 153 , State V. (32 Texas, 155) 582 Stephenson, Commonwealth w. (3 Met. Ky. 226) 58, 247, 248 Sterne v. State (20 Ala. 43) 509 Stetson, People v. (4 Barb. 151) 420 Stevens!'. Com'th (6 Met. 241) 916 V. People (1 Hill, N. Y. 261) 94 , Rex V. (5 B. & C. 246) 871 , Rex V. (5 East, 244) 247 , State V. (30 Iowa, 391 ) 285, 299 , State V. (40 Maine, 559) 58, 777, 782, 784 , State V. (62 Maine, 284) 582 Stevenson, Commonwealth v. (127 Mass. 446) 420, 428 , Reg. V. (3 Fost. & F. 106) 763, 765 , Rex V. (19 Howell St. Tr. 846) 520 V. State (65 Ind. 409) 642, 649 , State V. (52 Iowa, 701) 484 Steventon, People v. (9 Cal. 273) 520 , Rex V. (2 East, 362) 312 Stewart v. Com'th (4 S. & R. 194) 254 V. State (24 Ind. 142) 460, 464 , State V. (66 Ind. 555) 58, 1012, 1015 State V. (52 Iowa, 284) States. (7 W. Va. 731) 138 206, 742, 748 680, 612, 691 489 403 655 520, 520 , 623 Stiles, State v. (40 Iowa, 148) Stillwell, State v. (IG Kan. 24) Stimpson, State v. (4 Zab. 9) Stinson, State v. (17 Maine, 154 Stockdale's Case (2 Lewin, 220) Stockdale, Rex v. (22 Howell St. Tr. 237) 619 Stockley, Commonwealth c. (10 Leigh, 678) 60,68,871,876 Stockwell V. Silloway (113 Mass. 384) 482 !'. State (27 Ohio State, 563) 1078 . U. S. y. (4 CranchC. C. 671) 929 Stoddard, Com'th w. (9 Allen, 280) 206,218 Stodder, Com'th v. (2 Cash. 562) 997 Stoever, Com'th u. (1 S. & R. 480) 1069 Stofer V. State (3 W. Va. 689) 871, 876 Stogsdale, State v. (67 Misso. 630) 82, 489, 5C2 Stokes V. People (53 N. Y. 164) 1038 , Reg. V. (1 Den. C. C. 307 ; 2 Car. & K. 536 ; 2 Cox C. C. 498) 520 Stollenwerk v. State (55 Ala. 142) 582, 592 Stoller, State v. (38 Iowa, 321) 403, 411 Stonage, Rex v. (.Jebb, 121) 737 Stone, Commonwealth v. (4 Met. 43) 420 , People V. (9 Wend. 181) 420, 428 , Rex V. (4 Car. & P. 379) 125 , Rex V. (25 Howell St. Tr. 1155) 987 , Rex V. (Trem. P. C. 148) 874 , Rex V. (Trem. P. C. 288) 1068, 1086, 1088, 1090 , Rex V. (6 Went. PI. 357) 987 V. State (63 Ala. 115) 254 , Territory v. (2 Dak. 155) 777, 782, 785 Stoner v. State (80 Ind. 89) Stoops V. Com'th (7 S. & R. 491) Storey v. Robinson (6 T. R. 138) Storrs V. State (3 Misso. 9) Story, Rex v. ( Russ. & Ry. 81 ) Stoughton, Rex v. (2 Saund. 157) Section 642 254 172 642, 650 420, 426 1012, 1017 V. State (5 Wis. 291) 1012, 1028 Stout V. Commonwealth (11 S. & R. 177) 206, 904, 910 V. State (78 Ind. 492) 582 Stow, Commonwealth v. (1 Mass. 54) 460 V. People (25 111. 81 ) 482 Stowell, Commonwealth v. (9 Met. 569) 642 , Com'th V. (9 Met. 572) 489, 503 Stowers v. Commonwealth (12 Bush, 342) 460, 461, 464 Strain, Commonwealth v. (10 Met. 521) 420 Stratton v. Com'th (10 Met. 217) 777, 825 , Rex V. (21 Howell St. Tr. 1045) 60, 942 r State (45 Ind. 468) 699, 724 Straudor, State w. (11 W. Va. 745) 1078 StrausB, State v. (49 Md. 288) 642, 654 Straw, State v. (42 N. H 393) 285, 291 Strawhern v. State (37 Missis. 422) 489, 490 Strawn v. State (14 Ark. 549) 556 Stribbling w. State (56 Ind. 79) 992 Strickland v. State (7 Texas Ap. 34) 206 Stringer v. State (13 Texas Ap 520) 420, 430 997 929 420 96 364, Stringfield v. State (25 Ga. 474) Strode, Rex v. (Trem. P. C. 186) Strong V. State (86 Ind. 208) Stroup I'. Com'th (I Rob. Va. 754) Stubblefield, State v. (32 Misso. 563 365, 371 StudstiU V. State (7 Ga. 2) 520, 539 Sturdevant, People v. (23 Wend. 418) 672, 677 Sturdivant, State v. (21 Maine, 9) 777, 1012, 1029 Sturge, Reg. v. (3 Ellis & B. 734) 1012 Stutson, State v. (Kirby, 52) 333 Stuttsman v. State (57 Ind. 119) 439 Sugland, Com'th v. (4 Gray, 7) 904, 905 Sullivan, Commonwealth )•. (5 Allen, 511) 82,777,1005 , Com'th V. (6 Gray, 477) 904, 908 ^ — V. State (36 Ark. 64) 278 V. State (44 Wis. 595) 206, 212, 558 Sullivant v. State (3 Eng. 400) 111, 206, 904, 910 Sully, People v. (5 Parker C. C. 142) 80, 420, 428 Summers, Ex parte (5 Ire. 149) 321 y. State (9 Texas Ap. 396) 253, 254, 255 Sumner, People !•. (1 Mich. N. P. 214) 420 V. State (74 Ind. 52) 489, 502 , State V. (10 Vt. 587) 420 Sumpter v. State (11 Fla. 247) 558 Sunley, Reg. v. (Bell C. C. 145 ; 8 Cox C. C. 179) 975 645 TAY INDEX TO THE CASES CITED. THO Section Sutcliffe V. State (18 Ohio, 469) 520 Sutton, Rex v. (4 M. &. S. 532) 619, 621 , Rex V. { 1 Saund. 269 d ) 60, 952 Swaggerty v. State (9 Yerg. 338) 916 Swan, Reg. v. (4 Cox C. (J. 108) 233 Swancoat v. State (4 Texas Ap. 105) 148 Swartzbaugh v. People (85 111. 457) 699, 711, 717 Sweeney, Commonwealth v. (131 Mass. 579) 777, 810, 813 Sweenie, Reg. v. (8 Cox C. C. 223) 904 Sweers, Respnbliea v. (1 Dall. 41) 460, 474 Sweetman, People v. (3 Parker C. C. 358) 58, 871, 876 Swendsen, Reg. v. (14 Howell St. Tr. 559) 118, 944 Swenson, People v. (49 Cal. 388) 206, 558 Swink, State v. (4 Dev. & Bat. 358) 364, 365, 367 Swinney, Com'th v. (1 Va. Cas. 146) 420 Swope,' State v. (20 Ind. 106) 263, 264 Sydsei-ff u. Reg. (11 Q. B. 245) 291 Sykes v. Dixon (9 A. & E. 693) 303 , State V. (28 Conn. 225) _ 672, 677 Sylvester, Commonwealth v. (Brightly, 331) 672,677 Symonds, Com'th v. (2 Mass. 163) 365 , State V. (36 Maine, 128) 460, 467 , State V. (57 Maine, 148) 384 Szudurskie, Rex v. (1 Moody, 429) 460, 468 T. H., Rex V. (Trem. P. C. 1 ) 987 T. T., Rex V. (Trem. P. C. 99) 738 Tabart v. Tipper (1 Camp. 350) 619 Taffs, Rejr. n. (4 Cox C. C. 1 69) 403, 41 1 Taggait, People y. (43 Cal. 81) 2.54 Tally, State v. (74 N. C. 322) 148, 154 Tancock, Reg. ». (13 Cox C. C. 217) 1043 Tandy, Rex v. (2 Leach, 83.3) 337, 339 Tannet, Rex v. (Russ. & Ry. 351) 420, 426 Tappan, State v. (15 N. H. 91 ) 1003 Tarbox, Com'th v. (1 Cush.66) 4, 619, 626 Tasborougrh, Rex v. (Tn-m. P. C. 169) 968 Tatlock, Reg. v. (2 Q. B. D. 157 ; 13 Cox C. C. 328) 403, 582 Tatum V. State (63 Ala. 147) 642, 652 Taunt, State v. (16 Minn. 109) 582, 603 Taylor v. Commonwealth (20 Grat. 825) 904, 905 , Commonwealth v. (5 Binn. 277) 87, 442, 446, 856 , Commonwealth u. (14 Gray, 26) 777, 782, 820, 821 , Com'th w. (1 13 Mass. 1 ) 642, 644 V. Moran (4 Met. Ky 127) 93 V. People (6 Parker C. C. 347) 777, 828, 831 , People V. (3 Denio, 91 ) 673, 674 , Reg. u. (9 Car. & P. 672) 520, 530 , Reg. V. (6 Cox C. C. 58) 871 , Reg. !). (Law Rep. 1 C. C. 194 ; U Cox C. C. 261) 206, 214 Taylor, Rex v. (3 B, & C. 502) , Reg. V. (36 U. C. Q. 646 B. 183) 642 Section 777, 805, 1043 , Rex V. (3 B. & P. 596 ; Russ. & Ry. 63) 403 , Rex V. (1 Camp. 404) 871, 872 , Rex V. (1 Leach, 360) 115, 5':0, 539 , Rex V. (Trem. P. C. 226) 241, 243 , Rex V. (4 Went. PI. 45) 520, 525 V. Smetten (11 Q. B. D. 207) 672, 675 V. State (48 Ala. 180) 1064 V. State (59 Ala. 19) 1010 V. State (4 Ga. 14) 619 V. State (6 Humph. 285) 699, 709, 711 V. State (35 Wis. 298) 777, 828, 830 Teissedre, Stater. (30 Kan. 476) Temple v. State (6 Baxter, 496) V. State (7 Baxter, 109) Templeman, Reg. i'. (1 Salk. 55) Tenney, Com'th v. (97 Mass. .50) Tenorio v. Territory (1 NewMex. 279) 520 Terrel, United States v. (Hemp. 411) 933 Terry, Com'th ». (114 Mass. 263) 871 , State V. (4 Dev. & Bat. 185) 489 Thacher, Com'th v. (97 Mass. 583) 672,678 Thallman, Reg. v. (Leigh & C. 326 ; 9 Cox C. C. 388) 777, Thanet, Rex v. (27 Howell St. Tr. 822) Thayer, Com'th v. (8 Met. 523) Thistlewood, Rex v. (33 Howell St. Tr. 681) Thomas v. Commonwealth (2 Rob. Va. 795) 871, 876 , Com'th K. (10 Gray, 483) 460, 466 , Reg. .,. (11 Cox C". C. 535) 234 , Reg. V. (Law Rep. 2 C. C. 141 ; 13 Cox C. C. 52) 96, 337 , Reg. V. (Leigh & C. 313 ; 9 Cox 777, 820 442 442, 990 1051 403, 41 1 802 929 642 987 C. C. 376) , Rex V. (7 Car. & P. 851) , Rex V. (2 Leach, 634) , Rex V. (2 Leach, 877) V. State (55 Ala. 260) V. State (41 Texas, 27) , State V. (47 Conn. 546) , State V. (50 Ind. 292) 82, 582 460, 470 885 460, 470 1007 180 777, 820 489, 494, 499 206, 558 582 , State V. (29 La. An. 601 ) , State V. (30 La. An. 600) , State K. (2 McCord, 527) 582 , State V. (13 W. Va. 848) 642 , U. S. w. (2 Abb. U. S. 114) 972 , United States v. (4 Ben. 370) 972 Thompkins v. State (4 Texas Ap. 161) 777, 782 Thompson, Com'th v. (2 Allen, 507) 177 , Commonwealth v. (99 Mass. 444) 150 , Com'lhu. (108 Mass. 461) 138,143 , Commonwealth v. (116 Mass. 346) 206, 904, 910 , People V. (37 Mich. 118) 106, 180, 1 90 1 95 , Reg. V. (5 Cox C. C. 166; 16 ' Q. B. 832) 285, 312 , Beg. a. (11 Cox C. C. 362) 254, 261 TOL I\DEX TO THE CASES CITED. TUR Section Thompson, Rex v. (8 Howell St. Tr. 1359) 619 , Rex u. (2 Leach, 910) 460,471 , Rex V. (4 Went. PI. 96) 300 V. State (2.5 Ala. 41 ) 206, 210 V. State (49 Ala. 16) ,460, 461 V. State (26 Ark. .123) 520 V. Stale (37 Ark. 408) 642 u. State (36 Texas, 326) 520 V. State (1 Texas Ap. 56) 43, 777, 782 V. State (2 Texas Ap. 82) 777, 782, 784 , State !). (19 Iowa, 299) , State V. (44 Iowa, 399) 460 63, 642, 643, 645 642, 647 254 , State V. (2 Kan. 432) , State V. (23 Kan. 338) , State V. (32 La. An. 796) 403 , State V. (30 Misso. 470) 206, 742, 748 , State V. (40 Texas, 515) 167 , State V. (41 Texas, 523) 206, 212 Thorns, People v. (3 Paiker C. C. 256) 58, 460, 467, 1086 Thomson v. People (24 III. 60) 420 Thon V. Commonwealth (31 Grat. 887) 663 Thornburg, State v. (6 Ire. 79) 460, 471 Thome, State v. (81 N. C. 555) 180 Thornton, Com'th v. (113 Mass. 457) 360 , Reg. V. (2 Cox C. C. 493) 323 Thorp, R?x V. (5 Mod. 218) 285, 296 Throckmorton, State v. (53 Ind. 354) 205 Thurlow, Com'th v. (24 Pick. 374) 642 Thurston, People v. (2 Parker C. C. 49) 520, 1082 , Rex V. (Trem. P. C. 7) 520 Tibhetts, Com'th v. (2 Mass. 536) 285, 300 Tiddeman, Reg. u. (4 Cox C. C. 387) 977, 979 Tidwell, State v. (5 Strob. 1 ) 944 Tierney, Reg.u. (29 U. C. Q. B. 181) 341 , Rex V. (Russ. & Ry. 74) 987 Tilden, United States v. (21 Law Re- porter (Boston), 598) 888 Tilghman, State v. (11 Ire. 513) 520 Tilley, Rex v. (2 Leach, 662) 890, 893 Tilton, Com'th v. (8 Met. 232) 489, 502 , Commonwealth v. (8 Met. 232) 777, 805, 809, 1051 Timmins, Reg. v. (Bell, 276; 8 Cox C. C. 401 ) 944 Timmons, State v. (58 Ind. 98) 420 Tindall, Rex v. (6 A. & E. 143) 777, 1012, 1029 Tinsdale, People v. (10 Abb. Pr. N. 8. 374) 347 Tissing, State v. (74 Misso. 72) 642 Tite, Reg. v. (Leigh & C. 29 ; 8 Cox C. C. 458) 403 Tivnon, Commonwealth v. (8 Gray, 375) 254,261,1078 Tobin, Commonwealth v. (108 Mass. 426) 206, 838, 839 Todd V. State (31 Ind. 514) 420 Tolever, State v. (5 Ire. 452) 58, 442, 445 Section Tom, State v. (2 Dev. 569) 285, 287 , State V. (2 Jones, N. C. 414) 206, 904, 910 Tomkins v. State (33 Texas, 228) 420, 430 Tomlin, Slate v. (5 Dutcher, 13) 420 Tomlinson u. People (5 Parker C. C. 313) 460, 467 , People V. (35 Cal. 503) 460 , State V. (77 N. C. 528) 699, 730 Tompkins, People u. (1 Parker C. C. 224) 1082 Tompson, Com'th v. (2 Cush. 551) 148, 149 Toney v. State (60 Ala. 97) 777, 782, 1010 Tonkinson, Reg. v. ( 14 Cox C. C. 603) 582, 610 Toole, Reg. v. (11 Cox C. C. 75) 582 Topham, Rex v. (4 T. R. 126) 619, 620, 625 Torney u. State (13 Misso. 455) 1068 Toshack, Reg. v. (1 Den. C. C. 492; 4 Cox C. C. 38) 460, 475 Tower, Com'th v. (8 Met. 527) 642, 655 Towle, Rex v. (Russ. & Ry. 314) 206, 558 Townlev, Rex v. (18 Howell St. Tr. 329) 53, 987 Townsend v. People (3 Scam. 326) 58, 460, 467 , People V. (3 Hill, N. Y. 479) 777 Townsey, People v. (5 Denio, 70) 642 Tracey, State v. (12 R. I 216) 43, 82, 777, 820, 821 Tracy, Commonwealth v. (5 Met. 536) 929 , Rex V. (Russ. & Ry. 452) 699, 719 Train, Reg. v. (2 B. & S. 640) 1012, 1015 Trammel!, State v. (2 Ire. 379) 285 Travers, United States v. (2 Wheeler dim. Cas. 490) 520 Treadaway v. State (37 Ark. 443) 420 Trenchai-d, Rex v. (Trem. P. C. 40) 942 Trequier, Peopleu. (1 Wheeler, Crim. Cas. 142) 285, 308 Trevenner, Reg. v. (2 Moody & R. 471) 582,596 Trotter, Rex v. (Trem. P. C. 146) 875 Tryer, Respublica v. (3 Yeates, 451) 232 Tryon, People v. (4 Mich. 665) 680, 687 Tucker, Reg. v. (2 Q. B. D. 417 ; 13 Cox C. C. 600) 997, 1000 , Rex V. (2 Car. & P. 500) 871 , Rex v. (1 Moody, 1.34) 979 V. State (6 Texas Ap. 251) 206, 216 Tuell, State v. (6 Blackf. 344) 838, 840 Tuley, State v. (20 Misso. 422) 1012, 1019 Tuller V. State (8 Texas Ap. 501 ) 1 80 , State V. (34 Conn. 280) 582, 610 Tullv V. Com'th (11 Bush, 154) 890, 893 'v. Com'th (13 Bush, 142) 890, 893 V. Com'th (4 Met. 357) 253, 254 u. People (67 N. Y. 15) 742, 744 , Reg. V. (9 Car. & P. 227) 420 , U. S. V. (1 Gallis. 247) 879, 1075 Tumey, State v. (81 Ind. 559) 403 Turman v. State (4 Texas Ap. 586) Turner's Case (1 Lewin, 177) 647 699, 717 520 VAN INDEX TO THE CASES CITED. WAK Section Turner v. Commonwealth (5 Norris, Pa. 54) 54, 58, 520, 543 , Com'th V. (3 Met. 19) 569, 570 V. People (33 Mich. 363) 904, 905 , People V. (1 Cal. 188) 321 , Reg. V. (2 Car. & K. 7.32) 871, 875 , Reg. u. (12 Cox C. C. 313; 4 Eng. Rep. 561 ) 384, 387 , Reg. V. (2 Moody, 42) 336 , Rex V. (6 Howell St. Tr. 565) 87, 253, 254 , Rex V. (Trem. P. C. 82) 285, 300 Turnpike, States. (1 Harrison, 222) 1012, 1017 Turns v. Commonwealth (6 Met. 224) 520, 1068, 1090 Turweston, Reg.y. (16 Q. B. 109; 4 CoxC. C. 349) 1012,1017 Tutchin, Rex v. (14 Howell St. Tr. 1095) 619 Tutt, State v. (63 Misso. 595) 254, 257 Twitchell, Com'th v. (4 Cush. 74) 997, 1000 Twombly, Commonwealth v. (Thacher Crim. Cas. 222) 929 Tye, Rex v. (Russ. & Ry. 345) 520 Tyrie, Reg. w. (11 Cox C. C. 241) 403, 411 , Rex V. (.21 Howell St. Tr. 815) 987 Tyrringham's Case (4 Co. 36 a) 172 Uhl V. Commonwealth (6 Grat. 706) HI, 180, 194 UUman, State v. (5 Minn. 13) 977 XJlmer v. State (14 Ind. 52) 88, 582 Umphrey v. State (63 Ind. 223) 582 Underwood, People v. (16 Wend. 546) 482, 483 United Kingdom Elec. Tel., Reg. v. (9 Cox C. C. 137) 1012 Upchurch, State v. (72 N. C. 146) 973 Updegraff v. Com'th (6 S. & R. 5) 438 Updegraph v. Commonwealth (US. & R. 394) 243 Upton-on-Severn, Rex v. (6 Car. & P. 133) 1012, 1017 Vaile, Reg. v. (6 Cox C. C. 470) 384, 387 Vance v. State (65 Ind. 460) 904, 905 Vandercomb, Rex v. (2 Leach, 708; 1 Ben. & H. Lead. Cas. 516) 254, 1043, 1053, 1055 Vanderpool, People v. (1 Mich. N. P. 73) 1065 Vanderwood v. State (50 Ind. 295) 642, 650 Vandimark, State v. (35 Ark. 396) 420 Van Etten v. Hnrst (6 Hill, N. Y. 311) 93 Van Gaasbeck, People v. (9 Abb. Pr. N. s. 328) 254 Van Home v. State (5 Pike, 349) 460, 461 Van Houten, State v. (37 Misso. 357) 138, 141 Van Keuren, People v. (5 Parker C. C. 66) 460, 467, 1043 648 Section Vann, Reg. v. (2 Den. C. C. 325 ; 5 Cox C. C. 379) 955 Vannoy v. State (64 Ind. 447) 642 Van Santvoord, People v. (9 Cow. 655) 1082 Van Sickle, Commonwealth v. (Bright- ly, 69) 777, 810, 812 Van Swartow v. Commonwealth (12 Harris, Pa. 131) 642,653 Vantandillo, Rex v. (4 M. & S. 73) 777, 810, 814 Van Vacter v. McKillip (7 Blackf. 578) 294 Van Zant v. People (2 Parker C. C. 168) 642, 653 , State V. (71 Misso. 541) 206, 558 Varney, Com'th K. (10 Cush. 402) 619 Vasporw. Edwards (12 Mod. 658) 172 Vasser v. State (32 Ala. 586) 1068 Vaughan v. Com'th (17 Grat. 576) 254 Vaughn v. State (3 Coldw. 102) 854, 1007 Vaux's Case (4 Co. 44 a] 520, 5,33 Vavasour, Rex v. (Trem. P. C. 79) 325, 633, 634 Vawter, State v. (7 Blackf. 592) 138, 141 Veatch v. State (56 Ind. 584) 520 Vermont Central Railroad, State v. (27 Vt. 103) 1012, 1015 , State V. (28 Vt. 583) 1012, 1022 Verrill, State v. (54 Maine, 408) 520 Vest, State v. (21 W. Va. 796) 582 Vice, People v. (21 Cal. 344) 933 Vickery, State k. (19 Texas, 326) 420 Vierra, People v. (52 Cal. 451) 206, 212 Vincent, Com'th v. (108 Mass. 441) 439 V. People (5 Parker C. C. 88 ; 15 Abb. Pr. 234) 94, 460, 475 , Reg. V. (9 Car. & P. 91) 285, 942 , Reg. w. (9 Car. & P. 275) 285,942 Vint, Rex v. (27 Howell St. Tr. 627) 619, 627 Vipont, Rex v. (2 Bur. 1163) 285, 308 Virrier, Reg. r. (12 A. & E. 317) 871 Voke, Rex v. (Russ. & Ry. 531) 206, 558 Volmer, State v. (6 Kan. 379) 95, 642 Vorback, State v. (66 Misso. 168) 420 Voshall, State v. (4 Ind. 589) 929 Vowels, State v. (4 Oregon, 324) 742 Voysey, Rex y. (Trem. P. C. 238) 848 W. M., Rex V. (Trem. P. C. 180) 929 Waddiugton, Rex v. (1 East, 143) 1079 Wade, Commonwealth v. (1 Dall. 337) 403 , Commonwealth v. (17 Pick. 395) 180 Waggoner, State v. (52 Ind. 481) 375 Wagner v. State (63 Ind. 250) 395, 396 WagstafF, Rex v. (Russ. & Ry. 398) 977 Wait, Com'th v. (131 Mass. 417) 438 Wakefield's Case (2 Lewin, 1 ) 285, 296 Wakefield, Rex v. (27 Howell St. Tr. 679) 619, 621 , State V. (9 Misso. Ap.326) 871 Wakemau, Rex v. (Trem, P. C. 179) 848 WAR INDEX TO THE CASES CITED. WAY 699, 711 254 285, 290 303 93 871 1043 691 699 180 58, 263 148, 159 60, 582 Section Walbridge, People i-. (6 Cow. 512) 680, 691 Walcot, Rex v. (9 Howell St. Tr. 519) 987, 1086 Walden, Com'th v. (3 Cash. 558) Walker v. Com'th (28 Grat. 969) , Com'th v. (108 Mass. 309) V. Cronin (107 Mass. 555) V. Play (22 Ark. 103) V. Reg. (8 Ellis & B. 4.39) , Reg. V. (2 Moodv & R. 446) , Rex V. (23 Howell St. Tr. 1055) 285, 312, 942 , Rex V. (Trem. P. C. 261) V. State (49 Ala. 329) -^ V. State (61 Ala. 30) V. State (35 Ark. 386) V. State (5 Ga. 491) V. State (23 Ind. 61) , State V. (87 N. C. 541) 58, 600, 992 , State I'. (40 Texas, 485) 206,212,558 Wall V. State (23 Ind. 150) 205 , State V. (39 Misso. 532) 933 Wallace, Com'th d. (16 Gray, 221) 285, 290 , Com'th V. (108 Mass. 12) 484, 485 V. People (27 111. 45) 460, 477 , People !.■. (9 Cal. 30) 520 , Reg. V. (2 Moody, 200 ; Car. & M. 200) 699, 721 V. State (2 Lea, 29) 420 V. State (10 Texas Ap. 255) 520 V. State (12 Texas Ap. 479) Walls V. State (32 Ark. 565) , State V. (54 Ind. 407) , State u. (54 Ind. 561) Walpole V. State (9 Baxter, 370) Walsh, Rex v. (1 A. & E. 481) , Rex V. (2 Leach, 1054 ; Russ. &Ry. 215) 582 , United States v. (5 Dil. 58) 285, 312 Walter, People v. (1 Idaho Ter. N. s 386) Walters, People v. ( 1 Idaho Ter. N. s 271) , Rex V. (Car. & M. 164) , Rex V. (5 Car. & P. 138, note) , State V. (64 Ind. 226) 699, 730 Walton, Commonwealth v. (11 Al- len, 238) 83, 777, 820 , Reg. V. (Leigh &C. 288; 9 Cox C. C. 268) 977, 980 V. State (12 Texas Ap. 117) 1010 V. State (6 Yerg. 377) 460 War, People v. (20 Cal. 117) 58, 206, 212, 214 Warburton, Reg. v. (Law Rep. 1 C. C. 274) 285, 291 Ward, Com'th v. (1 Mass. 473) 285, 290 , Reg. i;. (1 Cox C. C. 101) 420 , Reg. u. (3 Cox C. C. 279) 871 , Rex K. (4 A. & E. 384) 1012,1026 , Rex V. (2 Ld. Raym. 1461 ; 2 Stra. 747) 95, 460 . V. State (48 Ala. 161) 582, 606 V. State (50 Ala. 120) 254 489, 503 881 871 247 992 975 , 602 520 520 278 238 Section 1078 460 489, 504 1038 460, 466 489, 493 Ward V. State (1 Humph. 253) , State V. (7 Baxter, 76) , State V. (57 Ind. 537) , State V. (64 Maine, 545) , State B. (6N. H. .529) , State V. (9 Texas, 370) Warden, Com'th v. (128 Mass. 52) 777, 802 Warden, Com'th v. (U Met. 406) 871, 876 V. State (24 Ohio State, 143) 520 Ware v. State (2 Texas Ap. 547) 582, 1079 Warraan, Reg. v. (1 Den. C. C. 183; 2Car. &K. 195) .520 Warner v. State (51 Ga. 426) 777, 820 , State V. (74 Misso. 83) 904, 905 Warren, Com'th v. (6 Mass. 72) 272 V. State (18 Ark. 195) 489, 506 Warrock v. State (9 Fla. 404) 206, 556, 558 Warshaner, Rex v. (1 Moody, 466) 460, 478 Washburn, Com'th v. (128 Mass. 421) 177 D. People (10 Mich. 372) 520,1034 Washington i/. State (41 Texas, 583) 420 , State y. (1 Bay, 120) 460 , State u. (2 Murph. 100) 904, 905 Waterford, &c. Turnpike v. People (9 Barb. 161) 1012,1017 Waterman, Commonwealth v. (122 ■Mass. 43) 285,297 V. People (67 111. 91 ) 460, 475 Waters, Commonwealth^ u. (11 Gray, 81) 90, 642, 646 ,Reg. V. (1 Den. C. C. 356; 2 Car. & K. 864 ; 3 Cox C. C. 300) 218, 520, 526 Watkins, Rex v. (2 Moody, 217 ; Car. & M. 264) 254 , State V. (27 Iowa, 415) 520 , U. S. w. (3 Cranch C. C. 441) 272 Watkinson, Reg. u. (12 Cox C. C. 271; 4 Eng. Rep. 547) 234 Watson V. Musick (2 Misso. 29) 93 , Reg. V. (2 Cox C. C. 376) 777, 802 , Reg. V. (Dears. & B. 348 ; 7 Cox C. C. 364) 420 , Rex V. (32 Howell St. Tr. 2) 987 , Rex V. (Russ. & Ry. 468) 890, 898 V. State (55 Ala. 158) V. State (63 Ala. 19) V. State (29 Ark. 299) V. State (3 Ind. 123) V. State (5 Texas Ap. 11) V. State (9 Texas Ap. 237) 642, 652 992 247 561 968 111, 138, 141 881, 882 V. State (13 Texas Ap. 76) , State V. (65 Misso. 115) 460, 470, 479 Watt V. Ligertwood (Law Rep. 2 H. L. Sc. 361) 319 Wattles I'. People (13 Mich. 446) 680, 690 Watts, Rex v. (1 B. & Ad. 166) 972 WauUy, Rex I). (1 Moody, 163) 881 Waverton, Reg. v. (17 Q. B. 562; 2 Den. C. C. 340; 5 Cox C. C. 400) 1012, 1017 Way, In re (41 Mich. 299) 1010 , State V. (5 Neb. 283) 83 649 WEL INDEX TO THE CASES CITED, WHI 1064 420 871 93 1087 520 420, 425 20, Section Way, State v. (6 Vt. 311) 148 Wayman v. Cora'th (14 Bush, 466) 848 Waymell v. Keed (5 T. R. 599) 972 Wead, Rex i: (4 Went. PI. 59) 192 Weatherby, State v. {43 Maine, 258) 148 Weatherhead, Commonwealth v. (110 Mass. 175) 439 Weathers v. State (2 Blackf. 278) 871 Weaver, People v. (47 Cal. 106) 520 Webb's Case (2 Lewin, 196) 520, 529 Webb V. Knight (2 Q. B. D. 530) 763, 771 , Reg. V. (1 Den. C. C. 338; 2 Car. & K. 933 ; 3 Cox C. C. 183) 17, 777, 802 , Rex V. (1 Moody & R. 405) 520, 529, 533 V. State (9 Texas Ap. 490) , State V. (26 Iowa, 262) , State V. (41 Texas, 67) Weber v. Fickey (52 Md. 500) Webster v. Cora'th (5 Cush. 386) , Com'th V. (5 Cush. 295) V. People (92 N. Y. 422) , Reg. V. (Bell C. C. 154; 8 Cox C. C. 187) 871,875 , Keg. V. (9 L. C. 196) 904 w. State (8 Blackf. 400) 489,497 V. State (9 Texas Ap. 75) 254 , State V. (30 Ark. 166) 929 , State V. (5 Halst. 293) 642 , State V. (77 Misso. 566) 558 , State V. (39 N. H. 96) 206, 838 Wedge V. State (7 Lea, 687) 582 V. State (12 Md. 232) 582 , State w. (24 Minn. 150) 680,688 Weed V. People (31 N. Y. 465) 1068 ;;. State (55 Ala. 13) 642, 652 Weekly, State v. (29 Ind. 206) 925 Weeks v. State (31 Missis. 490) 1068 Wegener, Rex v. (2 Stark. 245) 620 Wein V. State (14 Misso. 125) 582 Weinzorpflin v. State (7 Blackf. 186) 904, 905, 906 Weist V. People (39 111. 507) 642, 651 Welch, State v. (88 Ind. 308) 777 , State I). (21 Minn. 22) 384, 385 , State V. (28 Misso. 600) 973, 974 , State V. (73 Misso. 284) 582 , State V. (37 Wis. 196) 838, 840 Weldon, Rex v. (26 Howell St. Tr. 226) 987 • — — - - ■ 474 192) 106, 582,611 Wells I}. Commonwealth (12 Gray, 326) 777, 782, 784 , State V. (31 Conn. 210) 206, 904, 910, 911 Welman, Reg. v. (Dears. 188 ; 6 Cox C. C. 153) 420 Welsh, Com'th v. (1 Allen, 1) 777, 820 , Com'th V. (7 Gray, 324) 900 , State V. (3 Hawks, 404) 111, 460, 464, 479 , Rex V. (4 Went. PI. 23) Welham, Reg. u. (1 Cox C. C. 650 Sectiom Wentworth, Commonwealth v. (Bright- ly, 318) 90, 1012, 1015 , Commonwealth v. (15 Mass. 188) 439 , State V. (37 N. H. 196) 1012, 1021 Wenz V. State (1 Texas Ap. 36) 582 Werfel v. Com'th (5 Binn. 65) 1012, 1026 Werner v. State (51 Ga. 426) 663, 671 Wesley v. State (61 Ala. 282) 933 Wessells v. Territory (McCalion, 100) 582, 606 West V. Columbus (20 Kan. 633) 136 , Reg. V. (2 Car. & K. 784 ; 2 Cox C. C. 500 ]L 520, 527 , Reg. V. (Dears. & B. 109; 7 Cox C. C. 183) 582, 584 , Reg. V. (Dears. & B. 575 ; 8 Cox ;C. C. 12) 420 , Reg V. (1 Den. C. C. 258 ; 2 Car. & K. 496 ; 2 Cox C. C. 437) 460, 471 V. State (6 Texas Ap. 485) 582 V. State (1 Wis. 209) 944, 947 !). State {2Zab. 212) 460 West Riding, Rex v. (7 East, 588) 1017 West Riding of Yorkshire, Rex v. (2 East, 342) 1012,1023 Western, Reg. v. (Law Rep. 1 C. C. 122; 11 Cox C. C. 93) 871 Westley, Reg. v. (Bell C. C. 193; 8 Cox C. C. 244) 871, 876 , Reg. V. (11 Cox C. C. 139) 1043 Weston, People v. (4 Parker C. C. 226 ; Sheldon, 555) 93, 680, 690, 1054 , Rex V. (2 Howell St. Tr. 91 1 ) 520, 533 Wetherby v. State (39 Ala. 702) 904, 910 Wetherford, State v. (25 Misso. 439) 1064 Wetheriil, Rex v. (Cald. 432) 680, 691 Wetwang, Rex v. (Trem. P. C. 64) 633,940 Whalen, Com'th v. (131 Mass. 419) 254 Whaley, Com'th v. (6 Bush, 266) 881 Wheat V. State (6 Misso. 455) 997, 1001 Wheatland, Reg. v. (8 Car. & P. 238) 871 Wheatley, State v. (4 Lea, 230) 777, 782, 785 Wheatly, Rex v. (2 Bur. 1125; 1 W. Bl. 273) 272, 273 Wheeler v. State (42 Md. 563) 489, 777, 805 , State w. (19 Minn. 98) 460 Wheelock, People v. (3 Parker C. C. 9) 642 Whelan v. Reg. (28 U. C. Q. B. 2) 58, 520, 542, 1086, 1090 Whiley, Reg. v. (1 Car. & K. 150) 879 , Reg. V. (2 Moody, 185) 881 Whitcomb, Rex v. (1 Car. & P. 124) 680, 691 White V. Com'th (4 Binn. 418) 460, 464 V. Commonwealth (6 Binn. 179) 520 V. Com'th (9 Bush, 178] 620, 545 V. Commonwealth (29 Grat. 824) 180 , Commonwealth w. (10 Met. 14) 642 , People V. (55 Barb. 606) 206, 393 , People V. (34 Cal. 183) 337 , People V. (22 Wend. 167; 24 Wend. 520) 620 WIL INDEX TO THE CASES CITED. WIL Section White V. Keg. (13 Cox C. C. 318) 285, 311 , lleg. V. (Dears. 203 ; 6 Cox C. C. 213) 592 , Reg. V. (Law Rep. 1 C. C. 311 ; 12 Cox C. C. 83) 750, 753 , Rex V. (1 Bur. 333) 90, 777, 828, 831 . , Rex V. 4 Car. & P. 461' 403 , Rex V. (17 Howell St. Tr. 1079) 115, 520, 539 , Rex V. (Russ. & Ry. 99) 838, 840 V. State (49 Ala. 344) 1043, 1044 V. State (69 Ind. 273) 699, 726 V. State (13 Ohio State, 569) 206, 226 V. State (13 Te.xas, 133) 890, 893 V. State 1 Texas Ap. 21 1 ) 254 1). State (11 Texas Ap. 476) 642 , State V. (47 Iowa, 555) 1078 , State V. (6 Ire. 418) 619 , State V. (14 Kan. 538) 206, 558 , State D. (19 Kan. 445) 881 , State V. (76 Misso. 96) 278 , State V. (2 Tyler, 352) 582 , U. S. V. (5 Cranch C. C. 38) 180 Whitehead v. Smithera (2 C. P. D. 553) 436 Whitehouse, Reg. v. (3 Cox C. C. 86) 871 , Reg. V. (5 Cox C. C. 144) 520, 510 , Reg. <.-. (6 Cox C. C. 38) 285, 290 , Reg. !;. (6 Cox C. C. 129) 285, 291 Whitehurst, State v. (70 N. C. 85) 58, 992, 994 Whiteman v. King (2'H. Bl. 4) 172 , Reg. V. (Dears. 353 ; 6 Cox C. C. 370) 699, 726 Whiting V. State (14 Conn. 487) 66, 642, 649 Whitman, Com'th v. (118 Mass. 458) 349 Whitney, Com'th v. (5 Gray, 85) 374 , Rex. u. (1 Moody, 3) 699,717 V. State (35 Ind. 503) 904, 905 , State u. (15 Vt. 298) 642 Whitter, State v. (18 W. Va. 306) 642, 997, 998 Whittier, United States v. (5 Dil. 35) 887 Whittingham, Rex v. (2 Leach, 912) 403 , State V. (7 Vt. 390) 1012, 1023 Whitworth, State v. (8 Port. 434) 489, 502 Wicltey, State v. (54 Ind. 438) 642 , State V. (57 Ind. 596) 642 Wickham, Reg. u. (10 A. & E. 34) 420 Wiedemann v. People (92 111. 314) 642, 652 Wiggin, State v. (20 N. H. 449) 642 Wilburn, State «. (7 Baxter, 57) 263 Wilcox, Com'th v. (1 Cush. 503) 642 , Rex V. (Russ. & Ry. 50) 459, 460 , United States v. (4 Blatch. 385) 75, 460, 866, 867 Wilcoxson V. State (60 Ga. 184) 460 Wilde V. Commonwealth (2 Met. 408) 96 Wildman, Rex v. (Trem. P. C. 43) 942 Wilgas, Commonwealth v. (4 Pick.'177) 420 Wilhelm v. People (72 111. 468) 1065 Wilkerson v. State (2 Ind. 546) 1003 Wilkes, Rex w. (19 Howell St. Tr. 1075 ; 4 Bur. 2527) 1086, 1090 Section Wilkes, Rex v. (19 Howell St. Tr. 1382) 60, 619 Wilkins, State v. (17 Vt. 151) 460, 466 Wilkinson, Reg. v. (42 U. C. Q. B. 492) 619 , Rex w. (6 Went. PI. 374) 736 V. State (10 Ind. 372) 80, 460, 466 V. State (59 Ind. 416) 663 , State V. (2 Vt. 480) 1012, 1024 Wilks V. State (3 Texas Ap. 34) 206, 216 Willers, State v. (27 La. An. 246) 619 Willey V. State (46 Ind. 363) 520 — — V. State (52 Ind. 246) 138 Williams v. Commonwealth (10 Casey, Pa. 178) 285, 290 . Commonwealth v. (2 Cush. 582) 254 . Commonwealth v. (79 Ky. 42) 680 . Com'th y. (110 Mass. 401) 699,727 , Com'th y. (127 Mass. 285) 484, 485 , Com'th V. (9 Met. 273) 582, 588 y. Ellis (5 Q. B. D. 175) 983 V. Evans (1 Ex. D. 277) 562 , People V. (1 Buf. 568) 460 , People y. (4 Hill, N. Y. 9) 420 V. Reg. (1 Cox C. C. 179) 1090 , Reg. V. (1 Den. C. C. 529; 4 Cox C. C. 87 ; 2 Car. & K. 1001) 173 , Reg. y. (2Den. C. C. 61) 460,470 , Rex y. (Comb. 18) 1051 , Rex y. (26 Howell St. Tr. 653) 243 , Rex V. (1 Leach, 529) 206, 223 , Rex V. (1 Moody, 387) 696, 854 , Rex y. (Trem. P. C. 48) 621, 1034 y. State (15 Ala. 259) 582 V. State (44 Ala. 396) 582 V. State (67 Ala. 183) 254 V. State (35 Ark. 430) 642 V. State (46 Ga. 212) 254 V. State (3 Heisk. 37) 520 y. State (8 Humph. 585) 206, 904, 910 y. State (9 Humph. 80) 460, 466 V. State (2 Ind. 439) 564 V. State (47 Ind. 568) 205 V. State (64 Ind. 553) 148 y. State (42 Missis. 328) 80, 206, 558 y. State (35 Ohio State, 175) 520 V. State (12 Sm. & M. 58) 395 y. State (42 Texas, 392) 520 y. State (1 Texas Ap. 90) 904, 905 y. State (10 Texas Ap. 8) y. State (12 Texas Ap. 395) , State V. (Busbee, 197) , State y. (4 Ind. 234) , State V. (4 Ind. 393) , State V. (4 Ire. 400) , State w. (12 Ire. 172) , State y. (7 Jones, N. C. 446) , State y. (30 La. An. 1162) , State V. (32 La. An. 335) , State y. (54 Misso. 170) , State y. (7 Rob. La. 252) 933 23, 582, 609 992 1003 680, 691 663, 668 680, 690 58, 520 696 904, 905 582 961 , State y. (41 Texas, 98) 111, 2.5.3, 254 -, U. S , (4 Bis. 302) 661 460, 467 woo INDEX TO THE CASES CITED. TAR Suction Williams, United States v. (5 Cranch C. C. 62) 997, 999 Williamson, Eeg. u. (1 Cox C. C. 97) 21, 520, 530 , Statei'. (19 Misso. 384) 642,650 , State V. (43 Texas, 500) 582 Willis, State v. (4 Eng. 196) 43, 58, 735 , State V. (37 Misso. 192) 998 Wills V. People (3 Parker C. C. 473) 916 V. State (69 Ind. 286) 642 Wilson's Case (7 Q. B. 984) 320 Wilson V. Com'th (12 B. Monr. 2) 777, 794 V. Commonwealth (14 Bush, 159) 642 V. Com'th (15 Noms,Pa. 56) 285,312 K. Com'th (10 S. &R. 373) 680,690 , Com'th V. (11 Cush. 412) 642, 655 , People w. ( 64 111. 1 95 ) 317 , Reg. V. (1 Cox C. C. 255) 323 , Reg, o. (2 Moody, 52) 916, 918 , Rex V. (8 T. R. 357) 442, 444 , Rex V. (4 Went. PI. 362) 365 V. State ( 1 6 Ark. 601 ) 1 043 V. State (33 Ark. 557) 263 V. State (35 Ark. 414) 642, 651 V. State (3 Heisk. 278) 925 V. State (5 Pike, 513) 325, 582, 605 V. State (29 Texas, 240) 520 V. State (1 Wis. 184) 337 , State V. (30 Conn. 500) 111, 582, 612 , State V. (50 Ind. 487) 1043, 1044 , State V. (2 Mill, 135) 420, 430 , State V. (3 Misso. 125) 442, 446, 857 , State V. (43 N. H. 415) 777, 828, 831 , United States v. (Bald. 78 ; 7 150) 55, 58, 885, 1045 929 395 66, 582, 592 520 735 Winship, Rex v. (Cald. 72; 5 Bur. 2677) 323 Winslow, People v. (39 Mich. 505) 420 , U. S. V. (3 Saw. 337) 642, 652 Winsor v. Reg. (Law Rep. 1 Q. B. 289) 1043 Winter, Rex v. (13 East, 258) 1012, 1015 Winterbottom, Reg. v. (1 Den. C. C. 41 ; 2 Car. & K. 37 ; 1 Cox C. C. 164) 460, 472 Wise V. State (41 Texas, 139) 403 , State V. (3 Lea, 38) 871 , State V. (66 N. C. 120) 180 Wiseman, Rex v. (Fort. 91) 963 Wishon, State y. (15 Mi.sso. 503) 642 Withers, Reg. v. (4 Cox C. C. 17) 871 , Rex V. (1 Moodv, 294) 206, 558 Wolcott, Com'th V. (l"0 Cush. 61) 849 Wolf K. State (53 Ind. 30) 180 Womack v. State (7 Coldw. 508) 520, 544 Wood, Com'th v. (4 Gray, 1 1 ) 84, 64^, 655 , Com'th I'. (11 Gray, 85) 138, 142 , RexK. (1 Moody, 278) 694, 695 V. State (50 Ala. 144) 206, 558 652 Pet. Wilts, Rex V. (Trem. P. C. 181) Windell, State v. (60 Ind. 300) Winkler, People o. (9 Cal. 234) Winner, State v. (17 Kan. 298) Winright, State v. (12 Misso. 410; Section Wood V. State (46 Ga. 322, 254 V. State (48 Ga. 192) 944 , State V. (53 N. H. 484) 520, 528 Woodburne, Rex u. (16 Howell St. Tr. 53) 742 Woodbury, State v. (35 N. H. 230) 680, 683, 684 Woodford v. People (62 N. Y. 117 ; 5 Thorap. & C. 539) 58, 180, 188, 189 Woodly, State v. (2 Jones, 276) 575 Woods, Com'th v. (9 Gray, 131) 642, 655 , Com'th V. (10 Gray, 477) 460, 467 , Com'th V. (11 Met. 59) 680, 689 Woodsides v. State (2 How. Missis. 655) 56 Woodson, Com'th v. (9 Leigh, 669) 742 Woodward, Rex w. (1 Moody, 323) 180 , State I'. (21 Misso. 265) 672, 677 , State V. (25 Vt. 616) 642 Woody V. State (32 Ga. 595) 43, 80, 642, 649 , States. (2 Jones, N. C. 335) 925 Woolf, Rex V. (1 Chit. 401) 285, 291 WooUey, Reg. v. (4 Cox C. C. 251) 403, 411 , Reg. V. (4 Cox C. C. 255) 403, 411 Wooster v. State (55 Ala. 217) 777, 782 Wordell, Rex v. (Trem. P. C. 132) 460, 475 Worland t). State (82 Ind. 49) 317 Worley, Reg. v. (3 Cox C. C. 535) 871 V. State (II Humph. 172) 742, 745 Wormack v. State (6 Lea, 146) 254 Wormer v. Smith (2 Ind. 235) 93 Woi-mouth V. Cramer (3 Wend. 394) 93, 619 Worrall, United States v. (2 Dall. 384 ; Whart. St. Tr. 189) 111,247 Worrell, Rex v. (Trem. P. C. 106) 275 V. State (12 Ala. 732) 642 Wortley, Reg. v. (2 Den. C. C. 333; 5 Cox C. C. 382) 403 Woulfe, State v. (58 Ind. 17) 63, 642, 650 Wren v. Commonwealth (25 Grat. 989) 118 Wright, Commonwealth v. (12 Allen, 187) 86, 663, , Com'th V. (12 Allen, 190) 777, , Com'th V. (1 Cush. 46) 4, 619, i;. People (61 111. 382) , People V. (9 Wend. 193) — V. Reg. (2 CoxC. C. 91) - V. Reg. (14 Q. B. 148) — , Reg. V. (2 Cox C. C. 336) — , Rex r. (1 A. &E. 434) , States. (52 Ind. 307) , State V. (6 Jones, N. C. 25) 777, 794 Wroe V. State (8 Md. 416) 1012 Wunsch, Commonwealth v. (129 Mass. 477) 111,138,142 Wyman v. Com'th (14 Bush, 466) 391 , Commonwealth v. (8 Met. 247) 403 Wynne v. State (5 Coldw. 319) 254 Yancy f. State (63 Ala. 141) 633,635 Yarborough, State v. (77 N. C. 524) 658 403, . 664 , 820 622 ,411 460 1086 1068 285 1012, 1015 205 TOU INDEX TO THE CASES CITED. ZUL Section Yarrell, State v. (12 Ire. 130) 1012, 1023 Yates V. People (6 Johns. 337) 1086, 1088 , Reg. V. (Car. & M. 132) 871 , Reg. t. (6 Cox C. C. 441) 285,300 , Reg. ./. (12 Cox C. C. 233) 619 , Rex V. (1 Moody, 170) 420, 427 , State y. (21 W. Va. 761) 5.58 Yeadon, Reg. v. (Leigh & C. 81 ; 9. CoxC. C. 91) 206,214 Yong's Case (4 Co. 40 a) 520 Yonoski v. State (79 Ind. 393) 663, 668 Young, Com'lh v. (7 B. Monr. 1) 961 «. State (39 Ala. 357) 1068 B. State (58 Ala. 379) 520,543 V. State (10 Lea, 165) 243 , State V. (26 Iowa, 122) 977, 979 , State V. (18 N. H. 543) 172, 173, 174, 175 Section Young, State v. (46 N. H. 266) 460 , State V. (8 Vrooin, 184) 285, 291 Younger, State v. (1 Dev. 357) 291 Yount V. State (64 Ind. 443) 460, 464 Zachary, State v. (Busbee, 4S2) 680, 691 Zeibart, State v. (40 Iowa, 169) 520 Zeitler, State v. (63 Ind, 441) 642, 652 Zenobio v. Axtell (6 T. R. 162) 619 Zimmerman, State v. (2 Ind. 565) 777, 820 , State V. (53 Ind. 360) 365 Zorger v. People (25 111. 193) 680, 690 Zug V. Commonwealth (20 Smith, Pa. 138) 1012, 1026 Znle, State v. (5 Halst. 348) 56 Zulueta, Rexw. (1 Car. &K. 215) 961 653 INDEX TO THE FORMS IN THIS VOLUME. Note. — The index to the rest of the matter in the volume is merged In the General Index, next following, embracing the entire series. The figures denote the sections. ABANDONING ANIMAL, indictment for, 358. ABANDONMENT , (See Dependent Person — Neglects.) of child or helpless person, indictment, 218, 219, 753. indictment for murder of new-born child by, 526. ABATEMENT, forms of pleas in, 1037-1039. ABDUCTION OP WOMEN. (See Seduction and Abduction of Women.) ABETTORS. (See Accessory — Accessory After — Accessory Be- fore — Participants — Principal Second Degree — Solicitation.) ABORTION, indictments for ; namely, — formula, and precedents cited, 138. including assault, common-law precedent, 139. administering with intent — attempt, 140. particular forms for administering dmg, &c., 141. same for operating with instrument, 142 and notes, for causing death by, 143. solicitation to, cited, 143, note, indictment for murder of child through, 527. for murder of mother through, 528. ABROAD. (See Foreign Country — Out of Country.) ABSENCE FROM STATE, allegation of, to avoid bar of Statute of Limitations, 88. ABUSE. (See Carnal Abuse.) ABUSIVE LANGUAGE, indictments for uttering, 244, 858, 859. ACCEPTANCE, indictment for forging and uttering an, 472. ACCEPTING CHALLENGE, to duel, precedent for, cited, 381. ACCESSORY, in arson, precedents cited, 190. same in burglary, 256. forms of allegation against, in homicide, 539. 655 AIR INDEX TO THE POEMS. ACCESSORY AFTER, formula and forms against, with precedents cited, 114, 118. the like in misdemeanor and treason, 122. ACCESSORY BEFORE, formula and forms against, with precedents cited, 114, 116, 117. before conviction of principal, 116. after conviction of principal, 117 and note. the like in misdemeanor and treason, 119-121. indictment against, in self-murder, 953. ACCOUNTING, precedents for not, cited, 687. ACCUSTOMED RANGE, driving cattle from their, 167. ACQUITTANCE, forging and uttering an, precedents cited, 471. ACTOR, indictment for conspiracy to ruin, by hissing, 302. ACTS. (See Overt Acts.) ACTS OF BANKRUPTCY, indictments for, cited, 23S. ADDITION, allegations of the, 74, 75. plea of wrong, or none, precedents cited, 1039. ADMINISTERING POISONOUS DRUG, indictment for abortion by, 139-141. assault by, and precedents cited, 213. ADMINISTRATION, perjury in application for, precedent cited, 876. ADMINISTRATOR, form for allegation of name of, 79. ADULTERATE MANUFACTURE, indictment for conspiracy to, 311. ADULTERATED FOOD. (See Noxious and Adultekated Food.) ADULTERATED LIQUORS, indictment for selling, 771. ADULTERATED MILK, indictment for selling, 770. ADULTERY, (See Living in Adultery.) indictments for, 148-150, 152-155. formula, and pi'ecedents cited, 148. various common forms, 149. joint allegations, against both parties, 150. living in, 152-155. indictment for conspiracy to commit, 294, precedent cited, 288, note. precedents cited for conspiracy to charge with, to extort money, 300, note. ADVERTISING LOTTERY TICKETS, indictment for, 679. AFFIDAVIT, (See False Affidavit.) indictment for perjury in, 873, 874. (See Perjurt.) AFFRAY, indictment for, 925. AGAINST THE PEACE, conclusion of, 66, 67. AGAINST FORM OF STATUTE, conclusion of, 66, 67. AGGRAVATED ASSAULT, indictments for, 212-226, 558. AGREEMENT. (See Contract.) AIDING AND ABETTING, (See Accessory, &c.) a duel, precedent cited, 381. AIR. (See Injurious or Offensive Air.) 656 INDEX TO THE FORMS. AI ALARM OF FIRE. (See False Alarm of Fire.) ALARMING PERSON, precedent for, cited, 860. ALLEGIANCE. (See Oath of Allegiance.) ALTERING BOOKS, bankrupt's, precedents cited, 237. ALTERING COURSE OF WAY, indictment for, cited, 1015, note. ALTERING INSTRUMENT, indictment for forgery by, 458, 474. AMMUNITION. (See Fire-arms and Ammunition.) ANGER, indictment for language calculated to arouse to, 859. ANIMALS, (See Cruelty to Animals —Killing Cattle.) indictments for offences relating to ; namely, — illegal marking, and altering marks, 164-166. unlawful driving, 167, 168. unlawful herding, 169. connected with purchasing and slaughtering, 170. neglecting to restrain, 171. pound breach, 174, 175. taking up and using estray, 176. keeping dogs without license, 177. precedents for larceny of, cited, 606. indictments for malicious mischief to, 709-717. ANSWER. (See False Answer.) ANYTHING TO SAY, form of the question of, in record, 1070. APPOINTMENT TO OFFICE, corrupt conduct relating to, precedents cited, 394. APPREHENSION. (See Arrest.) APPRENTICES, precedent for conspiracy to prevent one from taking, cited, 308, note, for offences relating to, cited, 577, note. AQUEDUCT PIPE, indictment for destroying an, 729. ARBITRATORS AND REFEREES, indictment for bribing, 250. perjury before, precedents cited, 876. ARMED, (See Riding Armed.) entering assembly, indictment for, 267. for robbery by one being, 935. ARMS. (See Taken up Arms.) ARREST, indictment for wounding, &c., to prevent, 19, note, refusing to assist oflBcer concerning an, 845, 846. ARREST OF JUDGMENT, motion in, 1079. ARRESTED, indictment for having dangerous weapon when, 268. ARSENIC, indictment for endangering life by administering, 213. ARSON, indictment for substantive ; namely, — common-law precedent, 179. formula, and precedents cited, 180. in burning a mill, 181. an uninhabited house, 182. 42 657 ASS INDEX TO THE FORMS. ARSON — continued. public building, — church, 183. building, to defraud insurers, 184-186. one's own, to defraud insurers, 184, 185. another's, to defraud insurers, 186. goods, to defraud insurers, 187. burning house with a person in it, 188. degrees, accessories, &c., 189, 190. attempts to commit, 191-195. own house to burn neighbor's, 192. old precedent for, 192, note, statutory felony of attempt, 193. another form of attempt, 194. solicitation to, 195. ARTIFICERS, (See Workmen.) conspiracy to seduce out of country, precedent cited, 312, note. ASSAULT, (See Bodily Harm — Neglect .) indictment for, on policeman, with intent, 19, note. abortion by, 139. on account of money lost at gaming, cited, 507. with intent to maim, 748. with intent to commit rape or carnal abuse, 910, 911. with intent to rob, 937. ASSAULT AND BATTERY, (See Prize-fighting.) indictments for ; namely, — common form at common law, 201. same with the particulars, 202. Indiana forms, and precedents cited, 205. formula, and precedents cited, 206. forms not technical, 207-209. with dog, 208. by driving cart against carriage, 209. statutory forms cited, 210. with " deadly," " dangerous," &c. weapon, and precedents cited, 212. with poison, by administering, &c. and precedents cited, 213. inflicting grievous bodily harm, with precedents cited, 214. being armed with dangerous weapon, " felonious assaulter," and pre- cedents cited, 215. aggravated, with intent to do bodily harm, 217. by abandoning helpless person, 218, 219. by abusing right of chastisement, 220. on two or more, 221. by two on each other, 222. attempts, 224 ; solicitations, 225. with ulterior intent, precedents cited, 226. indictment for conspiracy to commit, 292. ASSAULT WITH INTENT, (See Assault — Attempt.) indictment for, and precedents cited, 224, 226. to kill, formula and forms, with precedents cited, 558. ASSAULT ON OFFICER, indictment for, 839. 6S8 INDEX TO THE POEMS. BAN ASSEMBLY. (See Disturbing Meeting.) ASSIGNMENT OF ERRORS, ou writ of error, 1090. ASSIST OFFICER. (See Refusing to Assist Officer.) ASSOCIATION, indictment for conspiracy to compel workmen to join an, 305. ASSUMING OFFICE, indictments for, 848, 849. ATTACHMENT, form of, for contempt of court, 318. ATTEMPT, (See Assault with Intent — Endeavor to Break — Possessing — Solicitation.) general forms for charging the, 100-112. solicitation to crime, 105-107. committing one offence with intent to commit another, 108, 109. less than offence, with like intent, 110, 111. precedents for, cited, 106, 109, 111. to commit arson, indictment for, 192-195. burglary, indictment for, 258-261. to prevent one from voting, indictment for, 392. to obtain money by false pretences, 434. in forgery and uttering, precedents for, cited, 479. in homicide, forms and formula for, with precedents cited, 558. indictments for, to commit larceny, 611-614. to commit suicide, 954. ATTORNEY, (See Letter of Attorney — Prosecuting Officer.) precedent against, for not paying over money, cited, 687. for practising without license, cited, 1001. form of plea of not guilty by, 1049. AUTHORITY, cheating by false pretence of having, precedent cited, 425. "AUTHORITY OF STATE," allegation of, in caption, 60, 64. AUTREFOIS ACQUIT. (See Jeopardy Repeated.) AUTREFOIS CONVICT. (See Jeopardy Repeated.) BAIL, precedents for conspiracy concerning, cited, 312, note, various official malfeasances relating to, cited, 688. BAILEE, indictment for statutory larceny by, 610. BAITING BULL, precedent for nuisance of, cited, 800, note. BANK, conspiracy to cheat, by overdrawing and false entries, cited, 289, note. BANK-BILL, (See Fictitious Bank-note.) indictment for forging, 465. for uttering, 466. for possessing, with intent to utter, 467. for larceny of, 602, 603. BANK-BOOK, for embezzlement of, precedent cited, 411. BANK-CHECK, for forging and uttering, cited, 469. BANK-NOTE. (See Bank-bill.) BANK OFFICER, for embezzlement by, cited, 411. BANKRUPTCY, (See Acts or Bankruptcy.) perjury in proceedings in, precedents cited, 876. 659 BLA INDEX TO THE FOEMS. BANKRUPTCY AND INSOLVENCY, precedents of indictments for ofiences connected with, cited; namely, — wilfully omitting from schedule, 231. not disclosing, &c. eifects, 232. acts of bankruptcy, 233. wrongful purchases and sales, 234. bankrupt not surrendering himself, 235. refusing examination, or answering falsely, 236. altering or mutilating account-books, 237. concealing books, 238. fraudulent insolvency, 239. BANKS OF CANAL, for injuring, cited, 730. BANNS OR LICENSE, solemnizing marriage without, indictment for, 736. BARRATRY, indictment for, 779. BASTARDY, indictment for, 159. perjury in proceedings of, precedent cited, 876. BATTERY, (See Assault and Battery.) indictment for solicitation to, 225. BAWDY-HOUSE, indictments for; namely, — under the common law, 781, 782. house of ill-fame, against statute, 784. letting house for bawdry, 785, 786. other forms of, precedents cited, 787. indictment for, including liquor-selling, &c., 821. BAYONET, for assault with, and precedent cited, 212. BEATING, (See CRtrEL Beating of Animal.) indictment for murder by, 520. assault by, and kicking, 202. BEGGING, indictment for, 1004. And see 429. BELL-PUNCH LAW, indictment under the, 658. BETTING ON ELECTIONS, formula, and precedents cited, 395. losing or winning by, 396. other forms for, 397, 398. BETTING ON GAMES, indictment for, 506. BIGAMY. (See Polygamy.) BILL-BROKER, for embezzlement by, precedent cited, 411. BILL OF EXCHANGE, indictment for forging and uttering, 468. for larceny of, 604. BILL OF SALE, for purchasing without, precedent cited, 170, note. BIRTH OF CHILD, for false statement as to, for registration, cited, 922. BITING OFF EAR, indictment for, cited, 745. BITING OFF NOSE, indictment for, cited, 745. BLACK ACT, indictment for killing animal contrary to, 709. BLANK INDICTMENTS, (See Printed Blanks.) indorsement on, for court files, 72. 660 INDEX TO THE FORMS. BEI BLASPHEMY AND PROFANENESS, common-law indictment for, 241. formula, and precedents cited, 243. on statute, 244. BODILY HARM, indictment for causing, 19, note. for inflicting, and precedents cited, 214. assault, with intent to inflict, 217. precedents for inflicting, cited, 694. BODY. (See Dead Body.) BOILING, offensive things, indictment for nuisance of, 829, precedents cited, 831. BOND, indictment for not giving, in bastardy, 159. BONE FACTORY, for nuisance of, cited, 881. BOOKS OF ACCOUNT. (See Altering Books — Concealing Books — Entries in Books of Account.) BOOTH, indictment for keeping, for indecent exhibition, 799. BOUGHT PROPERTY, for cheating by false pretence of having, cited, 425. BOUNDS, indictment for removing, 724. BOWLING ALLEY, for unlicensed keeping of, cited, 507. indictment for keeping, on Lord's day, 670. for nuisance of keeping, 807. BOY AT SCHOOL, for conspiracy to alienate from parents and marry, cited, 296, note. BRAWL AND TUMULT, indictment for making, 826. BRAWLER. (See Railer and Brawler.) BRAZIER, for nuisance of business of, cited, 831. BREACH OF PEACE. (See Peace, Breaches of.) BREAD, (See Noxious and Adulterated Food.) indictment for selling noxious, 764. BREAK. (See Endeavor to Break.) BREAKING. (See Burglary.) BREAKING IN DAYTIME, indictment for, 255. BREAKING AND ENTERING, for larceny with, cited, 586. BREAKING PRISON. (See Prison Breach, &c.) BREAKING WINDOWS, indictment for, 857. BRIBERY, indictments for; namely, — offering bribe to constable, at common law, 246. formula, and precedents cited, 247. election — bribery at common law, 248. same on statute, 249. bribery of arbitrator, 250. for conspiracy to procure election of one to office through, cited, 312, note. BRIDGE, (See Way.) precedent for destroying a, cited, 730. 661 CAR INDEX TO THE FOEMS. BRIDGE — continued. other precedents relating to, cited, 1023. BROKER, for doing business without license, cited, 1001. BUGGERY. (See Sodomy.) BUILDIISrG, (See Public Building.) indictment for larceny from, 588. for injuring a, 727. for nuisance of keeping, for selling liquor, 820. placing, in highway, 1015. in public square, 1024. BURGLARY, indictments for ; namely, — common-law burglary and larceny, 253. formula, and precedents cited, 254. breaking in the daytime, 255. against principals of second degree, and accessories, precedents cited, 256. in statutory degrees of, precedents cited, 257. indictments for attempts ; namely, — by solicitation, 258. unsuccessful endeavor to break, 259. taking impression of key, 260. possessing implements of, 261. indictment for conspiracy to commit, 288. BURIAL, (See Sepulture.) for conspiracy to prevent, cited, 312, note. indictment for usurping office of coroner to procure, without inquest, 848. BURNING, (See Arson.) indictment for murder by, 524. goods, malicious mischief of, 703. letters, &c. cited, 885. BURNING DEAD BODY, cited, 956, note. BUSINESS, (See Noxious and Offensive Trades — Unlicensed Business.) indictments for conspiracies to ruin men in their, 301-306 and notes, for carrying on unlicensed liquor-selling, 656. for various sorts of, on Lord's day, 662-669. BY-LAW. (See Municipal By-law.) CALF, indictment for killing, too young to be wholesome food, 769. CAMP MEETING, for disturbing, cited, 372. CANDIDATE FOR OFFICE, against, for advancing money for bribery, cited, 249, note. CAPTION OP INDICTMENT, forms for the, and precedents cited, 53-56, 1070. CARCASSES OF ANIMALS, for rendering air impure by, cited, 813. CARDS, indictment for playing, on Lord's day, 670, note, for keeping, for gaming, 500. 662 INDEX TO THE FORMS. CHI CARELESS NAVIGATION, for manslaughter through, cited, 530, note. CARNAL ABUSE, (See Rape — Rape and Carnal Abuse of Children.) indictments for, 907-909. CARRIAGE, indictment for assault by driving against, 209. CARRIER, for false pretence by, of having delivered parcel, cited, 425. indictment against, for unlawfully transporting liquor, 646. CARRYING CHALLENGE. (See Challenging.) CARRYING WEAPONS, indictments for offence of; namely, — at common law, 262. formula on statutes, and precedents cited, 263. concealed weapons, forms on statutes, 264, 265. privately, to terror, 266. going into assembly armed, 267. having dangerous weapon when arrested, 268. CART, for riding over one with a, cited, 522, note. CASTRATION, indictment for, cited, 745. CATHETER, procuring abortion by use of, 142 and note. CATTLE. (See Animals — Driving — Injdrinq Cattle — Killing Cattle.) CAUSING DEATH, by abortion, indictment, 148. CERTIFICATE OF CHARACTER, for forgery of, cited, 475. CERTIORARI, precedents of writ and proceedings in, cited, 1080-1082. form of, in aid of writ of error, 1089. CHALLENGING, (See Sending Challenge.) to duel, indictments for, 378, 379. carrying and sending challenge, 881. CHAMPERTY AND MAINTENANCE. (See Maintenance.) CHANGE OF VENUE, forms of the proceeding for, cited, 1064. CHARACTER. (See Certificate of Character.) CHARITY, (See Begging.) for obtaining money by false pretence in, cited, 429. CHASTISEMENT, indictment for assault by excessive, 220. CHASTITY OF FEMALE, for verbal slander of, cited, 635. CHEATS. (See False Pretences.) CHEATS AT COMMON LAW, indictments for, namely, — formula, and precedents cited, 272. common form for selling by false scales, 273. cheating by false dice, 274. by false marks on goods, 275. by fictitious bank-note, or other false writing, 276. falsely assuming character of merchant, 276, note, indictments for conspiracies to cheat, 286, 289, 291. CHILD MURDER, indictment for, and precedents cited, 278. CHILD UNBORN, indictment for conspiracy to murder, 287, note. 663 COM INDEX TO THE FORMS. CHILDREN. (See Abandonment — Having Child — Rape and Carnal Abuse of Children.) CHOKING AND STRANGLING, indictment for murder by, 520. CHOSE IN ACTION, for obtaining, by false pretences, cited, 427. CHURCH, indictment for arson of a, 183. for larceny from, cited, 588, note. CITY ORDINANCE. (See Municipal By-law.) CLAMS. (See Oysters and Clams.) CLERGY, record form of discharge on plea of, 1071. CLERGYMAN, for assault on, cited, 223, note. CLIPPING AND FILING COIN, indictment for, 335, note. COCK-FIGHTING, as cruelty to animals, indictment for, 361. assisting at, precedents cited, 507. COHABIT. (See Continuing to Cohabit.) COHABITATION, LEWD, indictments for, 153-158. COIN, (See Counterfeiting — Lightening — Uttering, &c.) for larceny of, cited, 593. COLLEGE. (See Institution of Learning.) COMBINED CAUSES, indictment for murder by, 535. COMBUSTIBLE AND DANGEROUS THINGS, indictments for ; namely, — keeping explosives, wood naphtha, gunpowder, 788. keeping ferocious dog, 789. unruly bull, precedent cited, 789, note. COMMENCEMENT, of indictment, 58, 1070. information, 59, 60, 64. complaint before magistrate, 61-63. forms for, cited, 58. of counts succeeding the first, 64. COMMISSIONERS OF ELECTION, malfeasances by, precedents cited, 391. COMMITMENT, form of, for contempt of court, 321. COMMITTEE. (See Legislative Committee.) COMMON CARRIER. (See Carrier.) COMMON DRUNKARD. (See Drunkard.) COMMON GAMBLER, indictment for being a, 495. COMMON LABOR, indictment for, on Lord's day, 668, 669. COMMON NUISANCE. (See Nuisance.) COMMON PROSTITUTE, for being, cited, 824. COMMON SABBATH-BREAKER, indictment for being, 662 and note. COMMON SCOLD, indictment for being a, 792. COMMON SELLER, of liquor unlicensed, indictment for being, 655. COMPOUND LARCENY. (See Larceny.) 664 INDEX TO THE POEMS. CON COMPOUNDING, formula for indictment, 124. common-law form, 125. after steps taken, 126. on statute, penal offence, 127. COMPOUNDING MEDICINE, for negligently, cited, 757. CONCEALED WEAPON, (See Carrying Weapons.) indictment for carrying, 264, 265. CONCEALING BOOKS, bankrupts, precedents cited, 238. CONCEALING EFFECTS, by bankrupt, precedents cited, 232. CONCEALMENT, allegation of, to avoid Statute of Limitations, 88. CONCEALMENT OF BIRTH OR DEATH, indictment for, and precedents cited, 278. CONCEALMENT OF GOODS. (See Fkaudulent Conveyances.) CONCLUDING PART, of indictment, 66, 67. of information, 68, 69. in nuisance, 775. CONCLUSION OP COUNTS, forms for the, 67. CONFESSION, for assault in touching one to extort, cited, 223, note. CONFIDENCE GAME, precedent for cheating by, cited, 431. CONFISCATION OF LIQUOR, precedents of proceedings for, cited, 645. CONGREGATION ASSEMBLED, indictment for disturbing a, 367, 370. CONSENT OP PARENTS, solemnizing marriage without, indictment for, 735. CONSPIRACIES AGAINST ELECTION, precedents for, cited, 394. CONSPIRACY, indictments for; namely, — formula, and precedents cited, 285. common form, with overt acts, — to cheat, 286. to murder, 287; one yet unborn, 287, note, to commit burglary, with overt acts, 288. other felonies, precedents cited, 288, note, to cheat by false tokens, — dice, 289. by statutory false pretences, 290. other forms for, to cheat, 291. to assault — to ravish, 292. to debauch a female, 294. to procure elopement and marriage, 296. to cause a false record of marriage, 297. to entice a wife from her husband, 298. to procure a divorce wrongfully, 299. falsely to charge with crime, or less offence, 300. to injure actor by hissing, 302. to seduce workmen from their employment, 303, 304. by workmen to compel other workmen, 305. to compel employer to discharge workman, 305. by workmen to raise their wages, 306. 665 COU INDEX TO THE POEMS. CONSPIRACY — continued. by manufacturers to reduce wages, 307. precedents for various labor conspiracies cited, 308, note. by false news, to enhance government securities, 310. to adulterate manufacture, 311. precedents for other conspiracies cited, 312, note. to procure unequal mamage of minor, cited, 738. indictment for, in nature of embracery, 851. to release prisoners from custody, cited, 854. precedents cited of indictment for seditious, 941. CONSTABLE, indictment for offering bribe to, 246 and note, against, for not attending election, cited, 391. for extortion by, 414. neglect of, to convey prisoner to jail, 681, 682. against one for refusing office of, 919. CONTEMPT OF COURT, summary proceedings for, precedents cited, 317. attachment, 318; commitment, 321. indictments ; namely, — in disobeying judicial orders, 322, 323. formula, and precedents cited, 325. by oral words to judge in open com't, 326, 634. threats made to induce relinquishment of verdict, 327. hindering witness from appearing, 328. CONTINUANCE, forms for the application for, cited, 1065. CONTINUANDO, forms for the, 82-84. CONTINUING TO COHABIT, indictment for, 883. CONTINUING OFFENCES, aUegations of time in, 81-84. CONTRACT, indictment for conspiracy to procure violation of, 303. enticing or hiring away one under, 577. CONTRARY TO FORM OF STATUTE. (See Against, &c.) CONVEYANCES. (See Fraudulent Conveyances.) CONVEYING INSTRUMENTS. (See Instruments of Escape.) CONVICTION, allegations of a previous, 94-97, 117, note. CONVICTION OF PRINCIPAL, indictment against accessory, after, 117. COPPERSMITH'S SHOP, for nuisance of, cited, 831. CORPORATION, allegations of name of, 79. for neglect of, causing loss of life, cited, 756, note. COUNTERFEIT COIN, obtaining thing by, as false pretence, 422, note. COUNTERFEITING THE COIN, including utterings, &c. indictments for ; namely, — common-law uttering, 331. statutory counterfeiting, and precedents cited, 333, 334. impairing, clipping, mutilating, &c., 335. gilding, coloring, &c., 336. 666 INDEX TO THE FORMS. CUS COUNTERFEITING THE COIN — continued. uttering, passing, putting off, &c., with precedents cited, 337. uttering after conviction, two utterings on same day, within ten days, &c., 338, 339. uttering, having other counterfeits in possession, 340. possessing, with intent to utter, and precedents cited, 841. having tools and materials for, 342, 343. attempt, coin not current, making tools for, 343. precedents cited for other utterings, 344. COUNTRY. (See Out of Country.) COUNTS, subsequent to first, commencement of, 64. joinder of, 64, 67. COUNTY. (See Special Locality.) COUNTY TREASURER, indictment against, for extortion, 416. COUNTY WARRANT, for forging, cited, 475. COURT FILES. (See Files of Court.) COURT ORDER. (See Judicial Order.) COVENTRY ACT, indictment on, for slitting nose, 743. COW, indictment for beating, in public street, 800. CRIME, (See False Charge of Crime — Offence Repeated.) indictment and precedents cited for committing lighter, intending heavier, 109. same for steps towai'd committing. 111. CRIME AGAINST NATURE. (See Sodomy.) CRUEL BEATING OF ANIMAL, indictment for, 350. CRUEL KILLING OF ANIMAL, indictment for, 353. CRUELTY TO ANIMALS, indictments for; namely, — overdriving, 346. overloading, 347. driving overloaded horse, 348. torturing, 349. cruel beating, 350. mutilating, 351. wilful and wanton wounding, 352. cruel killing, 353. depriving of necessary sustenance, 354. inflicting unnecessary cruelty, 355. not providing proper shelter, 356. driving when unfit for labor, 357. abandoning, 358. cruelly transporting, 359. suffering cruelty to be inflicted, 360. cock-fighting as cruelty, 361. shooting pigeons, with precedents cited, 362, note, indictment for nuisance of public, 800. CUSTOMS, conspiracies against the, precedents cited, 312, note. 667 DES INDEX TO THE FOEMS. CUTTING THE THEOAT, indictment for murder by, 520. CUTTING AND WOUNDING, (See Malicious Injuries TO Person.) assault by, precedent cited, 223, note. DAMAGING PROPERTY, indictments for, 719, 723-728. DAMMING STREAM, for rendering air unwholesome by, cited, 816, not DANCE-HALL, for keeping, cited, 787. DANCING AND MUSIC, for conducting, without license, cited, 1000, note. DANGEROUS THINGS. (See Combustible and Dangerous Things.) DANGEROUS WEAPON, (See Deadly Weapon.) indictment for having, when arrested, 268. for assault with, and precedents cited, 212, 217, 223, note, for assault being armed with, 215. DAY. (See Part of Day.) DAY OF WEEK, allegation of, 85, 86. DEAD, indictment for libel on the, 625. DEAD BODY, allegation of name of, 79. DEADLY WEAPON, (See Dangerous Weapon.) indictment for assault with, and precedents cited, 212. DEALING THE GAME, in gaming, indictment for, cited, 507. DEALING AS MERCHANT. (See Merchant.) DEATH, for neglects causing, cited, 756. DEATH BY ABORTION, indictment for causing, 143. DEBAUCH FEMALE, indictment for conspiracy to 294. DEBTOR. (See Poor Debtor.) DECEASED PERSON, allegation of name of, 79. DEED. (See Extort Deed.) DEFACING REGISTER, precedent of indictment for, cited, 923. DEGREES IN ARSON, indictments cited, 189. DEGREES IN BURGLARY, indictments cited, 257. DEGREES IN MURDER. (See Homicide, Felonious.) DEGREES IN ROBBERY, indictments cited, 936 DEMURRER, to indictment, 1041. to plea, 1053. joinder in, 1034, 1055. to replication, cited, 1060. DEPENDENT PERSON, (See Abandonment — Neglects.) indictment for injuring, by neglect, 751, 752. DEPRIVING ANIMAL OF SUSTENANCE, indictment for, 354. DESTROY SHIP. (See Ship.) DESTROYED, indictment for forging and uttering instruments, 477. DESTROYING PROPERTY, (See Malicious Mischief.) indictment for, 720; vessel, 721; aqueduct pipe, 729. DESTRUCTION OP LIQUOR. (See Confiscation of Liquor.) 668 INDEX TO THE FORMS. DOU DESTRUCTIVE MATTER, indictment for assault with, and precedent cited, 212. DETACHING INDORSEMENT, indictment for, 473. DETAIN PRISONER, indictment for not assisting officer to, 845. DETAINER, (See Forcible Entry and Detainer.) indictment for wounding to prevent, 19, note. DICE. (See False Dice.) DIGGING IN STREET, indictments for, cited, 1015. DIMINISHING COIN, indictment for, 335, note. DIRT, for removing, from street, cited, 1015. DISCHARGE OF PRISONER, record form of, on acquittal by jury, 1072. DISCLOSING, bankrupt not, cited, 232. DISFIGURE, wounding with intent to, 19, note. DISINTERRING DEAD BODY, indictments for, 957, 958. DISOBEYING COMMANDS, (See Judicial Order.) of ship's officer, precedent of indictment for, cited, 580, note. DISOBEYING ORDER, to close drinking places, precedent cited, 654. DISORDERLY HOUSE, indictment, formula, and precedents cited, 794. DISORDERLY AND IDLE PERSON, indictment for being, 1005. DISSECTING DEAD BODY, indictment for, 956. DISSENTERS, English indictment for disturbing meeting of, 360. DISSUADING WITNESS, from appearing, indictment for, 852. DISTILLERY, precedent for nuisance of, cited, 831. DISTILLING. (See Illicit Distilling.) DISTINCT PASSAGES, form for setting out libel in, 619^ note. DISTRICT ATTORNEY. (See PBOSECuxiNa Officer.) DISTURBANCE OF HABITATION, (See Dwelling-house.) indictment for, in the night, 856, 857. DISTURBING ELECTION, (See Election Offences.) indictment for, 393. DISTURBING MEETINGS, indictment for, by entering armed, 267. conspiracies to disturb, precedents cited, 312, note. other indictments for; namely, — formula, and precedents cited, 365. forms under the common law, 366, 367. secular meetings, at common law, 368. under statutes, 369-371. trading, &c. near camp-meeting, precedents cited, 372, note. DITCH, for injuring a, cited, 730. DIVORCE, indictment for conspiracy to procure, -wrongfully, 299. DOG, (See Howling Dogs.) unlicensed, for keeping, cited, 177. indictment for assault with, 208. DOMICIL. (See Residence.) DOUBLE VOTING, indictment for, 385. 669 ELB INDEX TO THE FORMS. DRAFT, indictment for forging and uttering a, 470. DRAWBRIDGE, for passing vessel irregularly through, cited, 985. DRINKING PLACES. (See Disobeying Okdee — Liquor Keeping AND Selling.) DRIVING, (See Furious Driving.) unlawful, of cattle, 167, 168. DRIVING ANIMAL, when unfit for labor, indictment for, 357. DRIVING AGAINST CARRIAGE, indictment for assault by, 209. DRIVING OVERLOADED HORSE, indictment for, 348. DROWNING, indictment for murder by, 523. DRUG, indictment for abortion by, 189-141. DRUNK, indictment for being, 376; in public place, 375. DRUNKARD, indictment for being a common, 374. for selling liquor to a, 652. DRUNKENNESS, (See Drunk — Drunkard — Liquor Keepikg and Selling — Liquor and Tippling Shops.) in office, indictment for, cited, 376, note. DUELLING, indictments for; namely, — challenging, and precedents cited, 378, 379. provoking to challenge, 380. for other forms of offending, cited, 381. DURESS AND STARVING, indictment for murder by, 525. DWELLING-HOUSE, (See Disturbance of Habitation — Unin- habited Dwelling.) for assault in, cited, 223, note, indictment for forcible entry or detainer of, 445. for larceny in, 588. for malicious mischief to, with riotous conduct, 707. EAR. (See Biting off Ear.) EAVESDROPPING, indictment for, 796, Crira. Proced. 11. § 312. about grand-jury room, indictment, 797. EFFIGIES. (See Exhibiting Effigies.) ELECTION, for perjury at, cited, 876. ELECTION BRIBERY, indictments for, 248, 249. ELECTION DAY, indictment for selling liquor on, 654. ELECTION LAWS, for conspiracies against, cited, 312, note. ELECTION OFFENCES, indictments for; namely, — formula and precedents cited, 384. double voting, 385. voting when not qualified, 386. falsely personating voter, 387. false answer as to right to vote, 388. refusal by election officer to receive vote, 390. 670 INDEX TO THE FORMS. EVl ELECTION OFFENCES — con(m«erf. attempting to prevent one from voting, 392. disturbing election, 393. conspiracy against election, precedents cited, 394. formula for betting on election, and precedents cited, 395. losing or winning by such betting, 396. betting on election, 397, 398. ELEVATOR. (See Warehouse and Elevatob.) ELOPEMENT AND MARRIAGE, indictment for conspiracy to procure, 296. EMBEZZLEMENT, indictments for; namely, — formula, and precedents cited, 403. allegations of money embezzled, 404. indictment for, under particular form of statute, 407. statutory form for indictment, 408. by public officers, 409. differing precedents for, cited, 411. solicitations to, 412. EMBEZZLING AND SECRETING, letters, &c., precedents cited, 885. EMBRACERY, indictment for, 850. conspiracy in nature of, 851. ENDEAVOR TO BREAK, (See Attempt.) to commit burglary, indictment for, 259. ENTERING. (See Breaking and Entering.) ENTERING ON PREMISES, after forbidden, indictment for, 994. ENTERTAINING PERSONS, on Lord's day, indictment for, unlawfully, 666. ENTICING AWAY LABORER, indictment for, 577. ENTRIES. (See False Entries.) ENTRIES IN BOOKS OP ACCOUNT, precedents for forging, cited, 475. EQUIPPING VESSELS. (See Neutrality Laws.) EQUITY, for perjury in proceedings in, cited, 876. ERASING INDORSEMENT, indictment for, 473. ERECTING BUILDING, on pleasure-grounds, indictment for, 1024. ERROR. (See Writ of Error.) ESCAPE. (See Prison Breach, &c.) ESCAPED PRISONER, proceedings for returning, to confinement, cited, 898, note. ESTRAY, indictment for taking up and using, 176. EVADING TAX, indictments for, cited, 974. EVADING TOLL, indictments for, cited, 984. EVIL SHOWS AND EXHIBITIONS, indictments for; namely, — keeping room for obscene prints, 798. booth for indecent exhibitions, 799. public cruelty to animal, 800. for other forms of offending, cited, 801. 671 FAL INDEX TO THE FORMS. EXAMINATION. (See Refusing to be Examined.) EXCEPTIONS, precedents of, cited, 1078. EXCESSIVE TOLL, for taking, cited, 983, note. EXECUTOR. (See Administrator.) EXHIBITING EFFIGIES, indictment for libel by, 629, note, 630. EXHIBITIONS. (See Evil Shows and Exhibitions.) EXPLOSIVE SUBSTANCE, indictment for keeping, 788. EXPOSING LIQUOR FOR SALE, indictment for, 644. EXPOSURE, indictment for assault by, 218, 219. EXPOSURE OF PERSON, indictments for ; namely, — common form, and precedents cited, 802. open and notorious indecency, 803. uncovered and indeceht exposure, 804. EXTORT DEED, for conspiracy to, cited, 300, note. EXTORT MONEY, indictment for conspiracy to, 300 and note. EXTORTION, indictments for ; namely, — common form for, against constable, 414. formula, and precedents cited, 415. upon statute, 416. EYE, (See Putting out Ete.) for assault by beating out, cited, 223, note. FALSE AFFIDAVIT, (See Affidavit.) for presenting, to pension office, cited, 867, note. FALSE ALARM OF FIRE, indictment for, 861. FALSE ANSWER, by voter, indictment for, 388. for giving, to collector of customs, cited, 975. FALSE CHARGE OF CRIME, indictment for conspiracy to prefer a, 300. FALSE DICE, indictment for cheating by, 274. for conspiracy to cheat by, 289. FALSE ENTRIES, (See Entries in Books of Account.) for conspiracies to cheat by, &c. cited, 289, note. in marriage register, for deceits to procure, cited, 738. for causing, in register, cited, 922. FALSE IMPRISONMENT. (See Kidnapping and False Impris- onment.) FALSE KEY, indictment for making, to commit burglary, 260. for having in possession, 261. FALSE MARKS, on goods, indictment for cheating by, 275. FALSE MEASURE, for cheating by, cited, 273, note. FALSE NEWS, indictment for conspiracy to enhance prices by, 810. FALSE OATH, to procure marriage license, precedent cited, 738. 672 INDEX TO THE FOEMS. FIB FALSE PERSONATING. (See Personating.) FALSE PRETENCES, indictment for conspiracy to cheat by, 290. other indictments for; namely, — formula, and precedents cited, 420. form authorized by statute, 421. common-law form, 422. by forged and worthless paper, 423. as to pecuniary standing, 424. as to quality of goods, 425, note. for numerous other varieties of, cited, 425, note. for false personating, cited, 426. for obtaining chose in action by, cited, 427. obtaining signature by, 428. money in charity by, cited, 429. for swindling by, cited, 430. by confidence game, cited, 481. sleight of hand, &c., indictment for, 432. defrauding keeper of hotel by, 433. attempt to cheat by, 434. for receiving goods obtained by, 918. FALSE SCALES, indictment for cheating by, 273. FALSE STATEMENT FOR REGISTRY, for making, cited, 922. FALSE TESTIMONY, for conspiracies to procure, cited, 312, note. FALSE TOKENS, indictment for conspiracy to cheat by, 289. FALSE TOLL-DISH, indictment for keeping, 982. FALSE WEIGHTS, indictment for cheating by, 273. FALSE WRITING, indictment for cheating by a, 276. FEAR. (See Putting in Fear.) FEEDING ARMED PROWLERS, for, cited, 854. FELONIOUS ASSAULTER, indictment for being a, 215. FEMALE. (See Chastity of Female — Debauch Female — Girl Unmarried — Rape.) FENCES, (See Removing Fence.) indictment for injuries to, 723. FEROCIOUS DOG, indictment for keeping, 789. FERRY. (See Keeping Ferry.) FERULE, indictment for assault with, 220. FICTITIOUS BANK-NOTE, indictment for cheating by a, 276. FIGHTING TOGETHER, (See Prize-fight.) indictment for assault by, 222. FILES OF COURT, indorsement of indictment for, 72. FIRE. (See False Alarm of Fire.) FIRE-ARMS, indictment for assault with, 19, note, for murder with, 520. FIRE-ARMS AND AMMUNITION, for having, without license, cited, 1001. 43 673 FOE INDEX TO THE FORMS. FIREWORKS, for setting off, in street, cited, 801. FISH, for larceny of, cited, 606. FISH AND GAME, indictments for ; namely, — having in possession wild fowl recently kiUed, 436. taking oysters or clams contrary to statute, 437. taking fish in unlawful manner, 438. other unlawful fishing, 439. obstructing passage of fish, 440. FISH-POND, for injuring a, cited, 730, note. FITTING OUT VESSEL, (See Neutrality Laws.) to engage in slave-trade, cited, 961. FLESH. (See Meat for Food.) FLOODING WAY, by damming stream, &c., cited, 1015, note. FOOD. (See Noxious and Adulterated Food — Unwholesome Food and Water.) FOOTWAY, (See Way.) for obstructing, cited, 1015, note. FORBIDDEN, entering on premises, after, 994. FORCIBLE ENTRY AND DETAINER, (See Trespass to Lands.) indictments for ; namely, — formula, and precedents cited, 442. the ordinary form at common law, 444. into or of a dwelling-house, 445. at night, cited, 446. FORCIBLE TRESPASS, indictments for, 451, 452. FOREIGN COIN, not current, indictment for attempt to counterfeit, 343. FOREIGN COUNTRY, against accessory to crime in, cited, 116, note. FOREIGN ENLISTMENT ACTS. (See Neutrality Laws.) FOREIGN LANGUAGE, form for setting out libel in a, 619, note. FOREIGN LOCALITY. (See Out of Country.) FOREIGN OFFICIAL PERSONS, indictments for libel on, cited, 627. FOREIGN PORT, assault in, with dangerous weapon, precedent cited, 223, note. FOREIGN SERVICE. (See Neutrality Laws.) FORFEITURE, of gaming implements, proceedings to enforce, cited, 507. of intoxicating liquors, same, 645. FORGED PAPER, obtaining money by false pretence of, indictment for, 423. FORGERY OF WRITINGS, allegation of second offence of, 95. indictments for, including the utterings; namely, — form where efficacy of writing depends on special facts, 459, formula, and precedents cited, 460. ordinary common-law form, 463. for forging writ, 463. promissory note, 464. 674 INDEX TO THE FOEMS. GAM FORGERY OP WRTim GS — continued. for forging bank-bill, 465. uttering forged bank-bill, 466. possessing forged bank-bills with intent to utter, 467. forging and uttering bill of exchange, 468. same of bank-check, precedents cited, 469. forging and uttering orders, warrants, drafts, &c., 470. same of receipts, 471. same of indorsements, acceptances,- and other indorsed matter, 472. erasing or detaching indorsement, 473. altering a genuine instrument into a forgery, 474. various other forgeries, precedents cited, 475. stamps and seals, indictments for forging, 476. writing lost, destroyed, or in hands of defendant, 477. possessing implements of forgery, 478. attempts at forgery, precedents cited, 479. FORM OF STATUTE. (See Against Form of Statute.) FORMER ACQUITTAL. (See Jeopardy Repeated.) FORMER CONVICTION. (See Jeopardy Repeated.) FORMER JEOPARDY. (See Jeopardy Repeated.) FORNICATION, (See Living in Fornication) indictments for, 148, 151-155. formula, and precedents cited, 148. common forms, 151. for conspiracy to commit, 294. FOWL. (See Wild Fowl.) FRAUD, conspiracies for various sorts of, cited, 312, note. FRAUDULENT CLAIMS, to pensions, precedents for presenting, cited, 867. FRAUDULENT CONVEYANCES, indictments for ; namely, — under statute of Elizabeth, 481. under modern statutes, 483. fraudulently selling mortgaged property, 485. same of land without title, 486. twice selling land, 487. FRAUDULENT INSOLVENCY, indictments for, cited, 239. FRAUDULENT WINNING, indictment for, in gaming, 496. FURIOUS DRIVING, indictments for, 560, 562. GAMBLING-HOUSE. (See Gaming-house.) GAME. (See Fish and Game.) GAME OR DEVICE, indictment for obtaininjg money by, 432. GAMING, (See Lotteries.) assault on account of money won at, precedent cited, 223, note, indictment for cheating in, 274. for conspiracy to cheat in, 289. other indictments for ; namely, — formula, and pi-ecedents cited, 489. playing for money, 490, 491. 675 GEO INDEX TO THE F0EM3. GAMING — continued. for " valuable thing," 492. in public place, storehouse, &c., 493. habitual gaming — professional gambler, 494. common gambler, &c., 495. fraudulent winning, 496. losing or winning, 497, 498. keeping gaming device, various forms, 499-502. permitting gaming on one's premises, &c., 503. by minors, precedents cited, 504. permitting minors to congregate, &c., 505. betting on games, &c., 506. precedents cited for other forms of gaming, 507. indictment for, on Lord's day, 670. GAMING DEVICE, indictment for keeping, various forms, 499-502. GAMING-HOUSE, indictments for keeping; namely, — common form, and precedents cited, 805. bowling alley, 807. gaming-place, and suffering gaming, 808. GAMING-PLACE, indictment for nuisance of keeping, 808. GAMING-TABLE, indictment for keeping a, 501, 502. GATE, for erecting, across a street, cited, 1015, note. in turnpike, unlawfully shutting, 1016, note. GENERAL ISSUE, pleas of the, 1048-1050. form of the plea of, in record, 1070. GIRL UNMARRIED, (See SEDrcTioN and Abduction.) indictment for taking, out of father's possession, 945. under twenty-one, indictment for seducing by fraud, 946. of chaste character, indictment for seducing, 947, 948. same, under promise of marriage, 949, 950. GLANDERED HORSE, indictment for taking, into public place, 815. GLASS-HOUSE, for nuisance of, cited, 831. GOODS, (See Quality of Goods.) indictment for burning, to injure insurers, 187. GOVERNMENT, (See Obstructing Justice and Government • Sedition.) for conspiracies to defraud, cited, 312, note. conspiracy to overturn the, cited, 312, note. indictment for libel on, 621. GRAMMAR SCHOOL, indictment against town for not maintaining, 755. GRAND JURY, for perjury before, cited, 876. plea to competency of the, in abatement, 1088. GRAND-JURY ROOM, indictment for eavesdropping about, 797. GRIEVOUS BODILY HARM. (See Bodily Harm.) GROWING ON LAND, indictments for larceny of things, 598-600. 676 INDEX TO THE POEMS. HOM GUARDIAN, for embezzlement by, cited, 411. GUEST, indictment against innkeeper for refusing, 567. GUN, indictment for assault with, and precedents cited, 212. for being found ■with, on Lord's day, cited, 671. GUNPOWDER, for transporting and keeping, cited, 788, note. HABITATION. (See Disturbance op Habitation.) HABITUAL GAMING, indictments for, 494, 495. HAIR, for assault by tearing out, cited, 223, note. HANGING IN EFFIGY, indictment for libel by, 629, note, 630. HARBORS, for offences against the, cited, 1029. HARNESS, indictment for malicious mischief to, 706. HARTSHORN, for nuisance of making, cited, 831. HAVING CHILD, by woman taken into house, indictment for, 155. HAVING LIQUOR. (See Possessing.) HAWKERS AND PEDDLERS, unlicensed, indictments cited, 509. HEALTH REGULATIONS, indictments for violating board of health order, cited, 512. indictment for breach of quarantine, 513. for neglect to vaccinate child, 514. HERDING, indictment for unlawful, of cattle, 169. HIGH SEAS, allegations of offence on, 89. for homicides on the, cited, 538. HIGHWAY. (See Way.) HINDERING OFFICER, various forms of indictment for, 838-843. HOLIDAY, indictment for selling liquor on, 654. HOMICIDE, FELONIOUS, (See Death by Abortion.) indictments for; namely, — formula and forms, with precedents cited, 520. with fire-arms, 520. by stabbing, 520; beating, 520. by choking and strangling, 520; cutting throat, 520. by unknown means, 520. by riding over one with a horse, 522. by drowning, 523. by burning, 524. by duress and starving, 525. of new-born child by abandonment, 526. of child through abortion, 527. of mother through abortion, 528. by medical malpractice and neglect, 529. of wife by husband, through neglect, 530. civil injury of homicide by railroad, 531. by poison, 533. by rape, 534. 677 ILL INDEX TO THE FORMS. HOMICIDE, FELONIOUS — continued. by combined causes, 535. , death or wound out of jurisdiction, 536, 537. on high seas, &c., precedents cited, 588. accessories, principals of second degree, &c., 539. on statutes, precedents cited, 540. as modified by statutes, 541-546. short statutory forms, 542-545. murder of first and second degrees, 546. attempts, assault with intent, formula and forms with precedents cited, 558. HOUSE, (See Glandered Horse.) indictments for overloading and driving overloaded, 347, 348. (And see Cruklty to Animals.) indictment for murder by riding over one with a, 522. HORSE-RACING AND FURIOUS DRIVING indictments for ; namely, — at common law, 560. horse-racing contrary to statute, 561. furious driving contrary to statute, 562. HORSE-RAILROAD CAR, indictments for overloading, 347, note, 348. HOTEL-KEEPER. (See Innkeeper.) HOUNDS, for keeping pack of, near street, cited, 813. HOURS OF LABOR, (See Work.) indictments for violating statutory, cited, 579. for not putting up notice of, cited, 757. HOUSE. (See Disorderly House — Dwelling-house.) HOUSE-BREAKING, (See Burglary.) in daytime, indictment for, 255. HOUSE OF ILL-FAME, (See Bawdy-house.) indictment for keeping, 784. for enticing female to, cited, 946, note. HOWLING DOGS, indictment for keeping, 832. HURTFUL NOISES. (See Offensive and Hurtful Noises.) HUSBAND, indictment for conspiracy to injure, by alienating and enticing away wife, 298. against, for manslaughter of wife through neglect, 530. ICE, for cutting and carrying off, cited, 730. IDLENESS. (See Disorderly and Idle Person.) ILL-FAME. (See House of Ill-fame.) ILLEGAL MARKING. (See Marks and Marking.) ILLEGAL MILITARY DRILL. (See Military Drill.) ILLEGAL TOLLS, indictment for demanding or taking, 983. ILLEGAL VOTING. (See Election Offences.) ILLICIT DISTILLING, precedents for, cited, 973. 678 INDEX TO THE FORMS. INN ILLICIT LIQUOR SELLING. (See Liquor Keeping and Selling.) IMPAIRING COIN, indictment for, 335. IMPEDIMENT, solemnizing marriage of persons under, indictment for, 734. IMPLEMENTS OF FORGERY, indictment for possessing, 478. IMPLEMENTS OF GAMING. (See Forfeituke.) IMPRESSION OF KEY. (See Key.) IMPRISONMENT, (See Kidnapping and False Imprisonment.) form of sentence to, 1070, note. INCEST, formula and indictments for, with precedents cited, 564. INCORRIGIBLE ROGUE, (See Vagabond and Rogue.) precedent for being, cited, 1006. INDECENCY. (See Open Indecency.) INDECENT SHOW, indictments for libel by, 629, note, 631. INDENTURED SERVANT, for harboring, cited, 577, note. INDIAN, indictment for selling liquor to, 652. INDIANA, peculiar forms for assault and battery in, 205. INDICTMENT. (See Caption — Commencement — Concluding Part, &c.) INDICTMENT PENDING. (See Pending.) INDORSEMENTS, (See Erasing Indorsement.) forms for, on indictments and informations, 70r72. indictment for forging and uttering indorsement, 472. for conspiracy to destroy indorsement, cited, 312, note. INFLICTING UNNECESSARY CRUELTY, on animal, indictment for, 355. INFORMATION, commencement of the, 59, 60. before magistrate, 61-68. counts in, subsequent to first, 64. concluding part of the, 66-69. INJURIES TO PERSON. (See Malicious Injuries to Person.) INJURIES TO PROPERTY, (See Malicious Mischief.) indictments for, to cattle, 705, 715, 716. to other property, 718. INJURING PERSON. (See Dependent Person.) INJURIOUS OR OFFENSIVE AIR, indictments for nuisance of; namely, — general form, and precedents cited, 810. offensive necessary-house, 811. • offensive piggery, 812. for other filth, cited, 813. bringing into a public place one having small-pox, 814. glandered horse, 815. rendering water stagnant, 816. INN, for unlicensed keeping, cited, 1001. INNKEEPER, (See Public House.) indictment against, for refusing to entertain, 567. against guest for defrauding, 433. 679 JUR INDEX TO THE POEMS. INOCULATING HOUSE, for nuisance of common, cited, 814, note. INSANITY, forms for setting up, in defence, 1061-1063. INSOLVENCY, (See Bankkuptcy and Insolvency — Frattdulent Insolvency.) for perjury in proceedings in, cited, 876. INSPECTED, driving cattle while not, 168. INSPECTOR OF ELECTION, for neglecting duty, cited, 391. INSTIGATOR, indictments against the, 105, 106, 114, 115-117, 119-121. INSTITUTION OF LEARNING, indictment for selling liquor near, 651. INSTRUMENTS, indictment for abortion with, 142. INSTRUMENTS OF ESCAPE, indictment for conveying, to prisoner, 894. INSTRUMENTS UNDER SEAL, for forging, cited, 475. INSURERS, (See Underwriters.) indictments for arson to defraud, 184-187. INTERNAL REVENUE, for violations of the, cited, 973. INTERROGATORIES, for perjury in answer to, cited, 876. INTIMIDATING LABORER. (See Labor Offences.) INTIMIDATING PERSON, precedent for, cited, 860. INTOXICATING LIQUOR. (See Liquor Keeping and Selling.) JAIL, for not repairing, cited, 757. JEOPARDY REPEATED, plea of former conviction or acquittal, 1043. replication thereto, cited, 1059, note. pleas of former jeopardy without conviction or acquittal, 1044. replication thereto, cited, 1059, note. JOINDER OF COUNTS, form for the, 64, 67. JOINDER IN DEMURRER, form of, 1054, 1055. to replication, cited, 1060. JOINDER IN ISSUE, form of, in record, 1070. JOURNEYMEN (See Workmen ) JUDGE OF ELECTION, for neglecting duty, cited, 391. JUDGE AND JURY, indictment for libel on, 622. JUDGES, for slander of, cited, 634, note. JUDGMENT, (See Arrest of Judgment.) record forms of the, 1070-1072. JUDICIAL ORDER, (See Order of Magistrate.) indictment for disobeying, 323. JURISDICTION, (See Plea to Jurisdiction.) allegations for homicide where death or wound is out of the, 536, 537. for offence of officer acting without, cited, 689. JUROR, (See Withdrawal op Juror.) for perjury in answers of, cited, 876. JURY, (See Judge and Jury — Petit Jury.) for slander of, cited, 634, note. 680 INDEX TO THE FORMS. LAN JUSTICE AND GOVERNMENT. (See Obstructing Justice and Government.) JUSTICE OF PEACE, indictment of, for not making returns, 685. various malfeasances by, precedents cited, 687. KEEPING FERRY, without license, cited, 1001. KEEPING GAMING DEVICE. (See Gaming Device.) KEEPING LIQUOR. (See Liquor Keeping and Selling.) KEEPING LIQUOR-SELLING PLACE, (See Liquor and Tippling Shops.) indictment for, 647. KEEPING LOTTERY, indictment for, 675. KEEPING FOR SALE, (See Liquor Keeplng and Selling.) lottery tickets, indictment for, 678. KEEPING OPEN SHOP, on Lord's day, indictment for, at common law, 662, note, same on statute, 664. KEROSENE, for keeping, below test, cited, 772., KEY, indictment for taking impression of, to commit burglary, 260. KICKING AND BEATING, indictment for assault by, 202. KIDNAPPING AND FALSE IMPRISONMENT, indictments for; namely, — formula, and precedents cited, 569. on particular statute, 570. importing kidnapped person, 571. holding kidnapped person in involuntary servitude, 572. KILLING. (See Cruel Killing op Animal.) KILLING CATTLE, indictments for malicious mischief by, 702, 709-713. KILLING SHEEP, to steal carcass, cited, 613, note. KNIFE, indictment for assault with, 217. LABOR, indictment for, on Lord's day, 668, 669. LABOR CONSPIRACIES, indictments for various, 303-307. LABOR OFFENCES, (See Hours of Labor.) indictments for ; namely, — enticing or hiring away laborer under contract, 577. intimidating laborer, 578. violating statutory regulations as to hours of labor, cited, 579. for mutiny and revolt on shipboard, cited, 580. LABORERS. (See Workmen.) LAND, (See Growing on Land — Trespass to Lands.) indictment for twice selling, 487. for conspiracy to expel possessor from, cited, 312, note, LAND WITHOUT TITLE, indictment for conveying, 486. LANDMARK, indictment for removing, &c., 724. LANGUAGE. (See Opprobrious Language.) 681 LIB INDEX TO THE FORMS. LARCENY, for conspiracy to commit, cited, 288, note. conspiracy wrongfully to accuse one of, cited, 300, note. indictments for simple and compound; namely, — formula, and precedents cited, 582. simple, 583. by servant, 584. in the night, 585. with breaking and entering, 586. with putting infear, 587. from dwelling-houses, shops, and other particular places, 583. from the person, 589. forms for describing thing stolen, at common law, 592, 593. of ore from mine, 596. lead fixed to dwelling-house, 597. things growing on land, 598, 599. growing crop, cited, 600. writings, cited, 601. bank-notes, 602, 603. promissory notes and bills of exchange, 604. other writings, cited, 605. animals and fish, cited, 606. special statutory elements, Texas, 609. by bailee contrary to statute, 610. attempts by solicitation, 611. by picking pocket, 612. by marking hog, 613. other attempts, cited, 614. LARCENY AND BURGLARY, indictment for, 253. And see 254, note. LARCENY FROM LETTER, precedents for, cited, 885. LARCENY OF LETTER, precedents for, cited, 885. LARCENY FROM PERSON, (See Picking Pocket.) indictment for assault with intent to commit, 215. LASCIVIOUS COHABITATION, indictments for, 154-158. LEAD FIXED, to buildings, indictment for larceny of, 597. LEARNING. (See Institution of Learning.) LEAVING SEAMEN, in foreign land, precedent for, cited, 757. LEGISLATIVE COMMITTEE, for perjury before, cited, 876. LETTER, FORGED, for passing as true, cited, 475. LETTER OF ATTORNEY, for forgery of, cited, 475. LETTERS. (See Postal Offences.) LETTING HOUSE FOR BAWDRY, indictments for, 785, 786. LEWD PERSON, indictment for being a, 157. LEWDLY ASSOCIATING, indictments for, 152-158. LIBEL AND SLANDER, (See Truth of Libel.) indictments for; namely, — formula for written, and precedents cited, 619. common form, libel on private person, 620. seditious libel on government, 621. 682 INDEX TO THE FORMS. LIQ LIBEL AND SLA'N'DEU — continued. on judge and jury, 622. on other official persons, 623. on the dead, 625. obscene libel, 626. formula for, by signs, pictures, and effigies, 629. by hanging a man in effigy, 630. by exhibiting obscene painting, 631. formula for, by oral words, with precedents cited, 633. jn nature of contempt, words spoken to magistrate, 634. precedents cited for other forms of oral, 685. LICENSE. (See Banns or License — Marriage License — Liquor Keeping and Selling.) LIGHTENING COIN, indictment for, 335, note. LIMITATIONS. (See Statute op Limitations.) LIQUOK KEEPING AND SELLING, (See Liquor and Tippling Shops.) indictments for unlicensed ; namely, — formula, and precedents cited, 642. having the liquor with intent to sell, 643. exposing it for sale, 644. proceedings for the confiscation of liquor, 645. illegally transporting liquor, 646. keeping place for unlawful selling, 647. single unlicensed sale, 649 and note, selling to be drank on premises, 650. near institution of learning, 651. to minor, 652. to drunkard and other particular persons, 652. on Sunday, on election day, and on other special days and times, 653, 654. being a common seller, 655. carrying on business of selling, 656. travelling and taking orders for liquor, 657. ' not registering sales (bell-punch law), 658. concealing the selling by screen, 659. indictment for neglect of selectmen to appoint agent for, 684. LIQUOR SELLING, for conspiracies to defeat the laws against, cited, 312, note. LIQUOR AND TIPPLING SHOPS, (See Tippling-house.) indictments for nuisance of keeping; namely, — shop for making sales forbidden by statute, 818. on statute declaring nuisance, 819, 820. keeping tenement for, 820. house of ill-fame, gaming-house, and liquor-selling house, combined, 821. keeping house for selling liquor, 822. LIQUORS. • (See Adulterated Liquors.) LIQUORS AND DISTILLING, precedents for violation of internal revenue laws concerning, cited, 973. 683 MAK INDEX TO THE FORMS. LIVING IN ADULTERY or Fornication, formula for indictment, and precedents cited, 148. various foi-ms for, 152-155. LOCALITY. (See Special Locality.) LODGING-ROOM, indictment for larceny in, 588. LORD'S DAY, indictment for selling liquor on, 653. indictments for violations of; namely, — the common-law nuisance, 662. formula on statutes, and precedents cited, 663. keeping open shop on, 684. selling goods on, 665. unlawfully entertaining persons on, 666. unlawful travelling on, 667. doing work and common labor on, 668, 669. gaming on, 670. for other forms of the offence, cited, 671. LOSING OR WINNING, in gaming, indictment for, 497, 498. LOST INSTRUMENT, indictment for forgery of, 477. LOTTERIES, indictments for unlawful; namely, — formula, and precedents cited, 672. setting up or promoting, &c. , 678, 674. keeping, 675. permitting, on one's premises, 676. selling lottery tickets, 677. having lottery tickets for sale, 678. advertising the tickets, 679. indictment for nuisance of keeping, 819. LOTTERY CIRCULARS, for sending, through mails, cited, 887. LOTTERY TICKETS, indictment for selling, 677. having for sale, 678. advertising, 679. LUNATIC, indictment for neglecting, 754. MAGISTRATE, (See Oeder of Magistrate.) commencement of information before, 61-68. indictment for contemptuous words spoken to, 634. for contemptuous words spoken of, cited, 634, note, for perjury before, cited, 876. MAIL. (See Postal Offences — Robbing Mail.) MAIMING, to prevent arrest, cited, 854. MAIMING ANIMAL, indictment for, 717. MAIMS. (See Mayhem and Maims.) MAINTENANCE, indictment for, 270. MAKING SELF A NUISANCE, indictment for being common prostitute, cited, 824. 684 INDEX TO THE F0EM8. MAH MAKING SELF A NUISANCE — coniwuerf. indictment for being railer and brawler, 825. brawl and tumult, 826. MALFEASANCE AND NON-FEASANCE IN OFFICE, indictments for; namely, — formula, and precedents cited, 680. common form, neglect by constable, 681. same condensed, 682. against selectmen for not appointing liquor agent, 684. against justice of peace for not making returns, 685. for various other sorts of the ofEenoe, cited, 686-692. MALICIOUS INJURIES TO PERSON, for inflicting grievous bodily harm, cited, 694. (See Bodily Harm.) malicious shooting, cited, 695. cutting, stabbing, wounding, cited, 696. (See Cutting and Wound- ing — Stabbing — Stabbing and Cutting — Wounding.) MALICIOUS MISCHIEF, indictments for ; namely, — formula, and precedents cited, 699. At common law, — killing cattle to injure owner, 702. burning goods, 703. maliciously injuring cattle, 705. maliciously injuring harness, 706. where another wrong blends with the, 707. To animals under statutes, — killing contrary to Black Act, 709. killing under various other statutory words, 710-713. killing in an enclosure, 712. killing by poison, 713. administering poison, 714. injuring animal, 715, 716. maiming or wounding animal, 717. To other personal property under statutes, — injuring, 718. damaging, 719. destroying, 720. destroying vessel, &c., 721. To the realty under statutes, — breaking or injuring fences, 723. removing land-mark or bounds, 724. cutting down or injuring trees, 726. injuring a building, 727. carrying away or injuring saw-mill, 728. destroying aqueduct pipe, 729. precedents for other forms of injury, cited, 730. MALICIOUS SHOOTING, precedents for, cited, 695. MALPRACTICE. (See Medical Malpractice,) MANSLAUGHTER, (See Homicide, Felonious.) form of record in case of, 1070-1072. 685 MEE INDEX TO THE FORMS. MANUFACTURE, indictment for conspiracy to adulterate, 311. MANUFACTURERS, indictment for conspiracy by, to reduce wages, 307. MANUFACTURING ESTABLISHMENT, for selling liquor near, cited, 651, note. MARKING AND ALTERING MARK, of animals, fraudulent, formula and precedents cited, 164. indictment for branding another's animal, 165. altering brand to defraud, 164, note, 166. attempt to commit larceny of hog by marking, 613. MARKS ON GOODS. (See False Marks.) MARRIAGE, (See Record of Marriage.) for conspiracy to obtain consent of parents to, cited, 296, note, indictments for various conspiracies against, 295-299. conspiracy to procure elopement and, 296. MARRIAGE LICENSE, for perjury in oath to obtain, cited, 876. MARRIAGE, OFFENCES AGAINST, indictments for ; namely, — refusing to solemnize, cited, 733. solemnizing, of persons under impediment, 734. solemnizing without consent of parents, 735. same without banns or license, 736. being unauthorized, cited, 737. for other like offences, cited, 738. miscegenation (blacks and whites), 739. MARRIAGE PROMISE, indictments for seduction under, 949, 950. MARRIAGE REGISTER, making false statement for, cited, 922. MARRIED WOMAN, form for alleging name of, 74. for false pretence by, of living with husband, cited, 424. MAYHEM AND MAIMS, (See Maiming.) indictments for; namely, — formula, and precedents cited, 742. on Coventry Act (slitting nose), 743. on similar American statutes, 744, 745. wounding with intent to maim, 747. assault with intent to maim, 748. MEANS UNKNOWN. (See Unknown Means.) MEASURE. (See Weight or Measure.) MEAT FOR FOOD, indictment for exposing and selling unwholesome, 765. for having with intent, 768. MEDAL, for uttering, resembling coin, cited, 344, note. MEDICAL MALPRACTICE, indictment for manslaughter by, 529. MEDICAL MAN, (See Compounding Medicine — Physician.) requiring female patient to strip, cited, 223, note. MEETING. (See Disturbing Meetings.) MEETING-HOUSE, indictment for arson of a, 183. MEETING BY TRAVELLERS. (See Travellers Meeting.) 686 INDEX TO THE FORMS. NAM MERCHANT, indictment for cheat by falsely assuming to be, &o., 276, note, for unlicensed dealing as, 998. MILITARY DRILL, for Ulegal, cited, 942. MILITARY OFFICER, for obtaining money by false pretence of being, cited, 425. MILK. (See Adulterated Milk.) MILL, indictment for arson of a, 181. MILL-DAM, indictment for nuisance by, 816. MILL-POND, indictment for, overflowing land, 816. MILL-RACE, for obstructing a, cited, 730. MINE, (See Ore from Mine.) for drowning or injuring a, cited, 730. MINORS, indictment for selling liquor to, 652. permitting, to game, congregate, &c. on one's premises, 504, 505. MISCEGENATION, indictment for, 739. MISCHIEF TO PROPERTY. (See Malicious Mischief.) MISDEMEANOR, for compounding, cited, 124, note. (See Compounding.) MISFEASANCE, (See Malfeasance and Non-feasance in Office.) for vai'ious forms of official, cited, 691. MISNOMER, plea of, in abatement, 1087 MISPRISION, indictment for, by neglect to disclose and prosecute offence, 129. neglect to prevent offence, 130. MONEY, forms for alleging, 403 and note, 404, 414-416, 421, 422, 423 and note, 490 and note, 491, 496, 506, 593, note. for false pretence of having paid, cited, 425. indictment for gaming for, 490, 491. MORTGAGED PROPERTY, indictment for fraudulently selling, 485. MOTION IN ARREST OF JUDGMENT. (See Arrest of Judgment.) MOTION FOR NEW TRIAL. (See New Trial.) MOTION TO QUASH INDICTMENT, form for the, 1031; for the entry, 1032. MUNICIPAL BY-LAW, indictment on, 133-136. precedents for, cited, 136. MURDER, (See Homicide, Felonious.) indictments for conspiracy to, 287 and note. form of record in a case of, 1070-1072. MURDER, FIRST DEGREE. (See Homicide, Felonious.) MUTILATING ANIMAL, indictment for, 351. MUTILATING BOOKS, bankrupt's, cited, 237. MUTINY, indictments for, cited, 580. NAME OF DEFENDANT, allegations of the, 74-77. NAME OF THIRD PERSON, allegations of the, 78, 79. ■* 687 NON INDEX TO THE FORMS. NATURALIZATION, perjury in application for, cited, 876. NAVAL STOKES, for unlawfully having, cited, 975. NECESSARY HOUSE, indictment for keeping an ofEensive, 811. NECESSARY SUSTENANCE, indictment for depriving animal of, 354. NEGLECT, NEGLECTS, indictments for, to disclose and prosecute offence, 129. to prevent ofience, 130. to give bastardy bond, 159. to have cattle-mark recorded, cited, 168, note. to retain list of cattle slaughtered, cited, 170, note. to keep.swine from sidewalk, 171. to vaccinate, 514. manslaughter by, 530. of constable to convey prisoner to jail, 681, 682. of selectmen to appoint liquor agent, 684. of justice of peace to make returns, 685. various offences of official, cited, 690. other indictments for ; namely, — formula, and precedents cited, 750. at common law, for neglecting dependent person, 751. same under statute, 752. on statute for abandoning child, 753. neglecting lunatic, 754. town not maintaining grammar school, 755. for various other, cited, 756, 757. NEGLIGENT ESCAPE, indictments against officer for, 895, 896. NEGRO, indictment for selling liquor to, 652, note. NEIGHBOR'S HOUSE, indictment for burning one's own to bum, 192. NET, indictment for unlawfully fishing with a, 438. NEUTRALITY LAWS, for offences against the, cited, 760. NEW TRIAL, form of motion for, 1075. affidavit to sustain motion, cited, 1076. order granting motion, 1077. NEWS. (See False News.) NEXT FRIEND, for forgery of consent to be, cited, 475. NIGHT, (See Time and Place.) for forcible entry or detainer at, cited, 446. indictment for larceny in, 585. for selling liquor in, 654. NIGHT-SOIL, for putting, in street, cited, 813. NIGHT-WALKER, indictment for being, 1007. NOISES. (See Offensive and Hurtful Noises.) NOLO CONTENDERE, form of plea of, 1051, 1052. NON-FEASANCE. (See Malfeasance and Non-feasance in OrncE.) NON-REPAIR, of way, indictment for, 1017. of bridge, cited, 1023. INDEX TO THE FORMS. NUl NOSE. (See Biting off Nose — Slitting Nose.) NOT BUILDING ROAD, indictments for, cited, 1018. NOT GUILTY, forms of plea of, 1049, 1050. same in record, 1070. NOXIOUS AND ADULTERATED FOOD, indictments for offences as to ; namely, — formula, and precedents cited, 763. selling noxious bread, 764. exposing unfit flesh meat for sale, 765. poisoning a well, 766. selling unwholesome provisions contrary to statute, 767. having unwholesome meat for sale, 768. killing a calf when too young, 769. selling adulterated milk, 770. keeping adulterated liquors for sale, 771. kerosene oil of too low test, cited, 772, note, for adulterating seeds by dyeing, cited, 772, note. NOXIOUS AND OFFENSIVE TRADES, indictments for carrying on ; namely, — general form, and precedents cited, 828. common form, tripe-boiling, &c., 829. on statute, 830. precedents for various other sorts, cited, 831. NUISANCE, (See Riding Armed — Way, &c.) of Sabbath-breaking, indictments for, 662. other indictments for; namely, — the conclusion, 775. formula, and precedents cited, 777. barratry, 778, 779. (See Barratry.) bawdy-house, 780-787. (See Bawdy-house.) combustible and other dangerous things, 788-790. (See Combusti- ble AND Dangerous Things.) common scold, 791, 792. (See Common Scold.) disorderly house, 793-705. (See Disorderly House.) eavesdropping, 796, 797. (See Eavesdropping.) evil shows and exhibitions, 798-801. (See Evil Shows and Exhi- bitions.) exposure of person, 802-804. (See Exposure of Person.) gaming-house, 805-809. (See Gaming-house.) injurious or offensive air, 810-816. (See Injurious or Offensive Air.) liquor and tippling shops, 817-822. (See Liquor and Tippling Shops.) making self a nuisance, 823-826. (See Making Self a Nuisance.) noxious and offensive trades, 827-831. (See Noxious and Offen- sive Trades.) unwholesome food and water, 834, 835. (See Unwholesome Food and Water.) plea of legislative authorization of, 1046, note. 44 689 OFF mDEX TO THE FORMS. OATH. (See False Oath — Pekjtjry — Unlawful Oath.) OATH OF ALLEGIANCE, for refusing to take, cited, 919, note. OATH TO JURY, on preliminary inquiry as to insanity, 1062. OBSCENE LIBEL, indictment for, 626. OBSCENE BOOKS, sending, through mail, cited, 887. OBSCENE PAINTING OR PICTURE, indictments for libel by, 629, note, 631. OBSCENE PRINTS, indictment for nuisance of keeping room for, 798. OBSCENE WORDS, for slander by, cited, 635. OBSTRUCTING JUSTICE AND GOVERNMENT, indictments for; namely, — Injuring, resisting, or hindering official person, — formula, and precedents cited, 838. assault and battery on officer, 839. resisting and obstructing officer, 840; other forms, 841-843. Refusing to assist officer, — to detain prisoner, 845. to ai-rest one, 846. to suppress riot, 847. Usurping or assuming office, — office of coroner, 848. of sheriff, contrary to statute, 849. Embracery, — common form, 850. conspiracy in nature of embracery, 851. Other obstructions, — dissuading -witness from appearing, 852. for unlawful oath, cited, 853. for other sorts of obstruction, cited, 854. OBSTRUCTING OFFICER, various forms of indictment for, 838-843. OBSTRUCTING PASSAGE OF MAIL, cited, 888. OBSTRUCTING WAY. (See Way.) OFFENCE REPEATED, (See Punishment.) allegations of prior and subsequent offence, 94-97, 117, note, for second offence of forgery, cited, 475. OFFENSIVE AIR. (See Injurious or Offensive Air.) OFFENSIVE BUSINESS. (See Noxious and Offensive Trades.) OFFENSIVE CARRIAGE. (See Tumultuous and Offensive Carriage.) OFFENSIVE AND HURTFUL NOISES, indictment for bowlings of dogs, 832. outcries and noises of people, 833. OFFENSIVE TRADES. (See Noxious and Offensive Trades.) OFFENSIVE WEAPON, indictment for assault with, and precedent cited, 212. . OFFERING BRIBE, to constable, indictments for, 246 and note. 690 INDEX TO THE POEMS. OYS OFFICE, OFFICER, (See Constable — Drunkenness in Office — Malfeasance and Non-feasance in Office — Obstructing Justice and Government — Policeman — Public Officers — Refusing Office.) tor conspiracy to obtain money by procuring another's appointment to, cited, 312, note. OFFICIAL MISDOINGS. (See Malfeasance and Non-feasance in Office.) OFFICIAL PERSONS, for libel on, cited, 623. OPEN ADULTERY, and the like, indictments for, 153-158. OPEN INDECENCY, indictment for, 803. OPEN LEWDNESS, indictments for, 152-158. OPENING LETTERS, precedents for, cited, 886. OPERATING WITH INSTRUMENTS, indictment for procuring abortion by, 142. OPPROBRIOUS LANGUAGE, for assault in connection -with, cited, 223, note. OPPROBRIOUS WORDS, indictment for uttering, 858, 859. ORAL BLASPHEMY AND PROFANENESS, formula for, and precedents cited, 243; other forms, 241, 244. ORAL SEDITION, cited, 940. ORAL WORDS, (See Oral Sedition.) indictment for profane, &c., 244. indictment for, in contempt of court, 326, 634. formula for indictment, and precedents cited, 633. for others, cited, 635. ORDER, (See Judicial Order.) indictment for forging and uttering an, 470. ORDER OF MAGISTRATE, (See Judicial Order.) precedent for forgery of, cited, 475. ORDERS. (See Travelling for Orders.) ORDINANCE. (See Municipal By-law.) ORE FROM MINE, indictment for larceny of, 596. "OTHERWISE CALLED," forms for alleging, 74. OUT OF COUNTRY, (See Foreign Country.) forma of charging offence committed, 89, 90, 538. OUTCRIES, indictment for making, 833. OUTSTANDING CROP, indictments for larceny of, cited, 600. OVERDRIVING ANIMAL, indictment for, 346. OVERLOADED HORSE. (See Driving Overloaded Horse.) OVERLOADING ANIMAL, indictment for, 347., OVERSEERS OF POOR, for malfeasance by, cited, 687. OVERT ACTS, forms for setting out, in conspiracy, 285, 286, 288, 289. OWN HOUSE, arson of one's, to defraud insurers, 184, 185. same, to burn neighbor's, 192. OWNERSHIP, for obtaining money by false pretence of, cited, 425. OYSTERS AND CLAMS, indictment for unlawful taking of, 437. 691 PER INDEX TO THE FORMS. PACK OF CARDS. (See Cards.) PAINTING, (See Obscene Painting.) indictment for cheat in sale of a, 275. PAPERS. (See Forged Papers.) PARDON, plea of, 1045. PARENTS. (See Consent of Parents.) PART OF DAY, form for alleging a, 86, 87. PARTICIPANTS IN CRIME, (See Accessory After — Accessort Before — Principal of Second Degree.) other than felony, 119-122. PARTNERSHIP, allegation of name of, 79. PASSAGE OF FISH, for obstructing, cited, 440. PASSENGER, for manslaughter of, through negligent management, cited, 530, note. PATRONIZING BAWDY-HOUSE, cited, 787. PAUPER, PAUPERS, for conspiracies as to maintenance of, cited, 312, note. for falsely pretending to be, cited, 425. PAYING OVER MONEY, for not, cited, 687. PEACE. (See Against the Peace.) PEACE, BREACHES OF, indictment for words calculated to create, 244. other indictments for; namely, — by disturbance of habitation in the night, 856 ; another form, 857. by offensive and tumultuous carriage, &c., 858. uttering language calculated to create, 859. by other means, cited, 860. by false alarm of fire, 861. PECUNIARY STANDING, indictment for obtaining money by false pretence as to, 424. PEDDLERS. (See Hawkers and Peddlers.) PENDING, (See Jeopardy Repeated.) plea of another indictment, cited, 1039. PENSION LAWS, precedents for offences against, cited, 864-868. withholding pension, 864. pension agent offending as to fees, 865. transmitting forged papers to pension office, 866. PERJURY, (See Subornation of Perjury.) indictments for; namely, — formula, and precfedents cited, 871. common form for affidavit, with surplusage, 873. same condensed, 874. common form for testimony at trial, 875. precedents for numerous other forms, cited, 876. for falsities in nature of, cited, 877. 'PERMITTING GAMING, on one's premises, &c., indictment for, 508. PERMITTING LOTTERY, on one's premises, indictment for, 676. 692 INDEX TO THE POEMS. POI PERSON, (See Exposure of Person — Upon the Person.) indictment for larceny from the, 589. PERSON IN HOUSE, indictment for arson where, 188. PERSONATING, for false pretence by, cited, 426. deceased soldier, to obtain pension, cited, 868. voter, indictment for, 387. PERSONATION, false, for conspiracies to injure one by, cited, 312, note. PETIT JURY, (See Juror — Jury.) form of record of the impanelling of, 1070. PETIT LARCENY, (See Larceny.) of things growing on land, indictment for, 599. PHYSICIAN, (See Medical Man.) indictment for practising as, unlicensed, 999. PICKING POCKET, indictment for attempt to commit larceny by, 612. PICTURE, (See Obscene Paintings — Obscene Prints — Signs AND Pictures.) indictment for cheating in sale of, 275. PIGEONS. (See Shooting Pigeons.) PIGGERY, indictment for offensive, 812. PILOT, for crossing bar without, cited, 757. PIRACY, indictment for, under the law of nations, 879. under statutes, and precedents cited, 879, note. PISTOL. (See Fire-arms.) PLACE, (See Time and Place.) allegations of, 80, 84, 89, 90. PLACE OF ABODE, forms for alleging the, 74, 75. PLACE, SPECIAL, indictment for larceny in, 588. PLANK, indictment for assault with, and precedent cited, 212. PLAY, for exhibiting a, on Lord's day, cited, 671. exhibiting unlicensed, cited, 801. PLAYING GAMES FOR MONEY, indictments for, 490, 491. PLEA. (See General Issue — Jeopardy Repeated — Truth op Libel — Withdrawal of Plea.) PLEA IN ABATEMENT. (See Abatement.) PLEA TO JURISDICTION, form of the, 1034. PLEADINGS SUBSEQUENT TO PLEA, forms of the, 1053-1060. PLE.A.S IN BAR, forms of the, 1042-1047. POCKET-PICKING. (See Picking Pocket.) POISON, indictment for assault by administering, &o. and precedents cited, 213. for mingling, with intent, cited, 226, note, for attempt to, cited, 226, note, for murder by, 533. for the malicious mischief of killing animals by, 713. administering, to animals, 714. POISONING WELL, indictment for, 766. 693 PRI INDEX TO THE POEMS. POLICEMAN, assaulting, resisting, wounding, &c. a, 19, note. POLYGAMY, indictments for ; namely, — formula, common form, and precedents cited, 881. under differing statutes, 882. continuing to cohabit, 883. POND, (See Public Ponds.) indictment for unlawfully fishing in, 439. POOR DEBTOR, for perjury by, cited, 876. POOR PEOPLE, for nuisance of putting, into improper neighborhood, cited, 801. POSSESSING, indictment for, counterfeit coin with intent to utter, 341. implements for counterfeiting coin, 342, 343. liquor, with intent unlawfully to sell, 643. POSTAL OFFENCES, for various, cited, 885-888. POST-OFFICE ORDER, for wrongftdly obtaining, cited, 888. POUND BREACH, common-law indictment for, 174. indictment on statute, 175. PRAYER FOR PROCESS, on information, 69. PREMISES, indictment for selling liquor to be drank on, 650. PRINCIPAL AND ACCESSORY, in forgery, against, cited, 475. PRINCIPAL OF SECOND DEGREE, formula for allegations against, 114. form, and precedents cited, 115. in misdemeanor and treason, 119, 120. in arson, cited, 190. in burglary, cited, 256. in felonious homicide, 539. PRINTED BLANKS, forms for indorsements on the, 72. PRINTED SHEETS, for larceny of, cited, 593. PRINTS. (See Obscene Prints.) PRISON, for pulling down, cited, 854. for not repairing, cited, 854. PRISON BREACH, RESCUE, ESCAPE, indictments for; namely, — formula, and precedents cited, 890. against prisoner for escaping, 891. against prisoner for breaking, &c., 892. third person for rescuing, or helping to escape, 893. conveying to prisoner instruments for escape, 894. against officer for permitting escape, 895. same for negligent escape, 896. statutory permitting of escape, 897. PRISONER, indictment for refusing to assist officer to detain, 845. proceedings for returning, to prison when at large, cited, 898, note. 694 INDEX TO THE POEMS. PU PRISONER BREAKING OUT, indictment, 892. PRISONER ESCAPING, indictment, 891. PRIVATE PERSON, indictment for libel on, common form, 620. PRIVATE STATUTE, form for setting out, and allegations upon, 132 and note. PRIVATEERING. (See Neutrality Laws.) PRIVATELY CARRYING WEAPON, to terror, indictment for, 266. PRIZE-FIGHTING, indictment for, cited, 900, Crim. Proced. II. § 24, being present at prize-fight, 901. leaving State to engage in, 902. PROCESS. (See Prayer fob Process.) PROCURING OBSCENE LIBEL, with intent to publish, cited, 629, note. PROFANITY, (See Blasphemy and Profaneness.) indictments for, 858, 859. PROFESSIONAL GAMBLER, indictment for being, 494. PROMISSORY NOTE, for embezzlement of, cited, 411. indictment for forging and uttering, 464. for larceny of, 604. PROMOTING LOTTERY, indictment for, 673, 674. PROPERTY. (See Bought Property.) PROPERTY MORTGAGED. (See Mortgaged Property.) PROSECUTING OFFICER, indorsements of name of, &c., on the indictment, 72. PROSTITUTE, indictment to procure one to marry a, cited, 296, note. PROVISIONS. (See Noxious and Adulterated Food.) PROVOKING CHALLENGE, to duel, indictment for, 380. PROWLER. (See Feeding Armed Prowlers.) PUBLIC BUILDING, indictment for arson of a, 183. PUBLIC CONVEYANCES, for manslaughter by ill management of, cited, 530, note. indictment for civil injui-y of death by ill management of, 531. PUBLIC GROUNDS. (See Way.) PUBLIC HOUSE, (See Innkeeper.) indictment against keeper of, for entertaining on Lord's day, 667. PUBLIC INJURIES, indictments for conspiracies to inflict, 309-311. PUBLIC OFFICERS, (See Official Persons.) indictment for embezzlement by, 409. PUBLIC PLACE, indictment for being drunk in a, 375. for gaming in a, 493. PUBLIC PONDS, for offences against, cited, 1029. PUBLIC RECORDS, (See Record.) for forging, cited, 475. PUBLIC SHOW, (See Evil Shows and Exhibitions.) indictment for setting up, unlicensed, 1000. 695 EEB INDEX TO THE FORMS, PUBLIC STATUE, for injuring a, cited, 730. PUBLIC WAY, for assault in, cited, 223, note. PUNISHMENT, (See Ofii-ence Repeated.) information for further, because of prior sentence, 97. PURCHASES AND SALES, for wrongful, by bankrupt, cited, 234. PURCHASING CATTLE, for violating regulations about, cited, 170. PUTTING OUT EYE, indictment for, cited, 745. PUTTING IN FEAR, indictment for larceny with, 587. PUTTING OFF. (See Uttering.) QUAKER, for perjury in oath by, cited, 876. QUALIFIED, indictment for voting when not, 386. QUALITY OF GOODS, indictment for false pretence as to, 425, note. QUARANTINE, indictment for breach of, 513. QUARRYING STONE, for nuisance of, cited, 831. QUASH. (See Motion to Quash Indictment.) QUESTIONS, against bankrupt refusing to answer, or wrongly answering, cited, 236. RAILER AND BRAWLER, indictment for being, 825. RAILROAD, indictment against, for civil injury of causing death by ill management, 531. RAILROAD CAR. (See Horse-railkoad Car.) RAILROAD TICKET, indictment for larceny of, cited, 605. RAILWAY PASS, for forging, cited, 475. RAILWAY TRACK, indictment for obstructing, 1021. RANGE. (See Accustomed Range.) RAPE, (See Carnal Abuse.) for prevailing on woman to compound, cited, 124, note, indictment for conspiracy to commit, 292 ; cited, 288, note. for conspiracy to charge with, to extort money, cited, 300, note. indictment for murder by, 534. RAPE AND CARNAL ABUSE OF CHILDREN, indictments for ; namely, — formula, and precedents cited, 904. rape, common-law form, 905. same on statute, 906. carnal abuse of female child, 907, 908. same, between the ages of ten and twelve, 909. assault with intent to commit, 910, 911. forms for other attempts, and solicitations, cited, 912, 913. against persons who were present aiding, 914. REALTY, indictments for various injuries to the, 723-729. REBELLION, for conspiracy to join, cited, 312, note, for advancing money to assist, cited, 942. 696 INDEX TO THE POEMS. KEV RECEIPT, for assault and taking away, cited, 223, note, for forging and uttering a, cited, 471. RECEIVING STOLEN GOODS, indictments for ; namely, — ^, formula, forms, and precedents cited, 916. obtained by false pretences, 918. RECORD, (See Public Records.) forms for the extended, 1070-1073. RECORD OF COURT, indictments for larceny of, cited, 605. RECORD ENTRY, of order quashing indictment, 1032, RECORD FACT, forms for alleging, 94-97, 117, note. RECORD OF MARRIAGE, indictment for conspiracy to procure false, 297. RECORDED, for neglect to have mark of cattle, cited, 168, note. REFEREES. (See Arbitrators and Referees.) REFUSING TO ASSIST OFFICER, indictments for, 845-847. REFUSING TO BE EXAMINED, banki-upfs, cited, 236. REFUSING OFFICE, indictment for, 919. pleas in bar to indictment for, cited, 1046, note. REFUSING TO SOLEMNIZE MARRIAGE, indictment for, cited, 733. REFUSING VOTE, indictment against election officers for, 390. REGISTER OF VESSEL, for refusing to deliver up certificate of, cited, 975. REGISTERING SALES OF LIQUOR, indictment for not, 658. REGISTRY LAWS, for violating the, cited, 922, 923. RELIGIOUS MEETINGS. (See Disturbing Meetings.) REMOVING FENCE, without license, indictment for, 995. REPETITIONS OF OFFENCE, indictment for nuisance by, 818. REPLICATION, to plea to jurisdiction, 1056. to plea of misnomer in abatement, 1057. to plea of incompetency of grand juror in abatement, 1058. to plea in bar, 1059. REQUEST, indictment for forging and uttering a, 470. RESCUING PRISONER, (See Prison Breach, &c.) indictment for, 893. RESIDENCE, (See Place of Abode.) allegations of the, 74, 75. RESIDING IN BAWDY-HOUSE, cited, 787. RESISTING OFFICER, policeman, 19, note. various forms of indictment for, 838-843. RETAILING LIQUOR, indictments for, 649-654. REVENUE, for conspiracies to defraud government of, cited, 312, note. REVENUE LAWS. (See Business — Tax and other Revenue Laws.) 697 SEC INDEX TO THE FORMS. KEVOLT, indictments for, cited, 580. RIDING ARMED, common-law indictment for, 262. RIDING OVER ONE, indictment for murder by, 522. RIOT, (See Suppress Riot.) indictment for, 929. RIOTOUS CONDUCT, with injury to dwelling-house, indictment for, 707. ROAD CROSSINGS, for not erecting signs at, cited, 757. ROAD OFFICERS, (See Way.) for neglects by, cited, 1019. ROB, indictment for assault with intent to, 215. ROBBERY, for conspiracy to commit, cited, 288, note, indictments for ; namely, — formula, forms, and precedents cited, 933. committed while armed, &c. , 935. statutory degrees of, precedents cited, 936. assault with intent to rob, 937. ROBBING MAIL, cited, 885. ROGUE. (See Incorrigible Rogue.) ROUT, indictment for, 928. RUNNING HORSE IN WAY, interrupting travel by, cited, 1015. SABBATH. (See Lord's Dat.) SABBATH-BREAKER. (See Common Sabbath-breaker.) SALES. (See Fraudulent Conveyances — Purchases and Sales — Unlicensed Sale.) SALOON. (See Victualling House.) SAW-MILL, indictment for injuring, 728. SCALES. (See False Scales.) SCHEDULE, for omissions from, by bankrupt, cited, 231. SCHOOL. (See Grammar School — Institution of Learning.) SCHOOL LANDS, indictment for waste and trespass on, 993. SCOLD. (See Common Scold.) SCREEN, indictment for maintaining, in liquor-selling, 659. SEA BEACH, for neglect to repair, cited, 757. SEAL. (See Instruments under Seal — Stamps and Seals.) SEAMEN. (See Leaving Seamen.) SEAS. (See High Seas.) SECOND DEGREE. (See Principal of Second Degree.) SECOND OFFENCE. (See Offence Repeated.) SECRETING. (See Embezzling and Secreting.) SECULAR MEETING, indictment for disturbing, 368. SECURITIES, indictment for conspiracy to enhance price of, by false news, 310. for embezzling various, cited, 411. 698 INDEX TO THE FOEMS. SHI SEDITION, (See Treason.) indictments for, cited, 940-942. SEDITIOUS LIBEL, indictment for, 621. SEDUCTION AND ABDUCTION OP WOMEN, indictment for conspiracy to seduce and debauch, 294. to procure elopement and marriage, 296. to abduct girl, with marriage under false representations, cited, 296, note, indictments for; namely, — formula, and precedents cited, 944. taking girl out of possession of parents, 945. seducing female by fraud, 946. married man seducing chaste woman, 947. • seducing and debauching unmarried chaste woman, 948. seducing female under promise of marriage, 949. obtaining carnal knowledge by false promise of marriage, 950. same in violation of trust, precedent cited, 951. SEEDS, for adulterating, by dyeing, cited, 772. SELECTMEN, indictment of, for neglect to appoint liquor agent, 684. SELF. (See Making Self a Nuisance — Witness for Self.) SELF-MURDER, indictment against principal of second degree in, 952. . against accessory before the fact in, 953. for the attempt, 954. SELLING COUNTERFEIT COIN, cited, 344, note. SELLING GOODS, on Lord's day, indictment for, 665. SELLING LIQUOR. (See Liquor Keeping and Selling.) SELLING LOTTERY TICKETS, indictment for, 677. SENDING CHALLENGE. (See Challenglng.) SENTENCE, information for further, 97. form of the, in record, 1070-1072. SEPULTURE, (See Burial.) indictments for violations of; namely, — dissecting dead body instead of burying, 956. disinterring dead body, at common law, 957. same, contrai-y to statute, 958. for burning dead body, cited, 956, note. SERVANT, (See Indentured Servant.) indictments for conspiracy to entice away, 303, 304. for larceny by, 584. SETTING UP LOTTERY, indictment for, 673, 674. SHAM MARRIAGE, for conspiracy to seduce a woman by, cited, 294, note. SHELTER FOR ANIMAL, indictment for not providing proper, 356. SHIP, (See Wrecked Ship.) form for charging offence committed in, 89. indictment for conspiracy to destroy, 286. 699 SOL INDEX TO THE FORMS. SHOOTING, (See Malicious Shooting.) indictment for assault by, and precedents cited, 212. for, at one in duel, cited, 381. SHOOTING WITH INTENT, cited, 226, note. SHOOTING PIGEONS, cited, 362, note. SHOP, (See Keeping Open Shop.) indictment for larceny in, 588. SHOWS. (See Evil Shows and Exhibitions — Public Show.) SIDEWALK, indictment for permitting swine upon, 171. SIGNATURE, indictments for obtaining, by false pretences, 428. SIGNS, for not erecting at road-crossings, cited, 757. SIGNS AND PICTURES, indictments for libel by ; namely, — formula, and precedents cited, 629. by effigy, 630. exhibiting obscene painting, 681. SIMPLE LARCENY. (See Larceny.) SINGING SONGS, for slander by, cited, 635. SLANDER. (See Libel and Slander — Oral Words.) SLAUGHTER-HOUSE, indictment for nuisance of, 830 ; cited, 831. SLAUGHTERING CATTLE, indictment for violating regulations about, 170. SLAVE TRADE, for engaging in, cited, 961. SLAVERY, for some old offences against, cited, 575. SLEIGHT OF HAND, indictment for obtaining money by, 432. SLITTING NOSE, indictment for, 743. SMALL-POX, indictment for taking one having, into public place, 814. SMOKE, for nuisance of deleterious, cited, 813. SMUGGLING, indictments for, cited, 972. SOAP MANUFACTORY, for nuisance of, cited, 831. SOCIETY, (See Association.) for cheating by false pretence of being member of a, cited, 425. SODOMY, indictment for, 963. for solicitation to, 964. for assault with intent to commit, 965. SOLDIERS, against town for neglect to relieve, cited, 757. SOLEMNIZING MARRIAGE, indictment for, of persons under impediment, 734. without consent of parents, 735. without banns or license, 736. being unauthorized to solemnize, cited, 737. SOLICITATION, (See Attempt.) indictment for, and precedents cited, 106. to commit abortion, cited, 143, note, indictment for, to commit arson, 195. battery, and precedents cited, 225. 700 INDEX TO THE FORMS. SUE SOLICITATIOIir — continued. indictment for, to commit burglary, 258. larceny, 611. to officers, to violate duty, cited, 852, note, to soldiers, to mutiny, cited, 852, note, to one to enlist as soldier in another State, cited, 852, note, to carnal abuse of child, cited, 913. SONGS. (See Singing Songs.) SPARKS FROM LOCOMOTIVE, precedent for emitting, cited, 790. SPEAKER OP HOUSE, for assault on, cited, 223, note. SPECIAL LOCALITY, charging offence committed in, 89, 90. SPECIAL STATUTORY LARCENIES, indictments for, 609. SPIRITUOUS LIQUOR. (See Liquor Keeping and Selling.) STABBING-, indictment for murder by, 520. precedents for, cited, 696. STABBING AND CUTTING, (See Malicious Injuries to Person.) for assault by, cited, 223, note. STAGNANT WATER, indictment for nuisance by, 816. STAMPS AND SEALS, indictment for forging and uttering, 476. STARVING, indictment for murder by, 525. STATE. (See Authority of State.) STATE'S ATTORNEY. (See Prosecuting Officer.) STATUTE, (See Private Statute — Public Statute.) conclusion against form of, 66, 67. STATUTE OF LIMITATIONS, plea of, 1046, note. STATUTORY INDICTMENTS, in homicide, 541-546. STATUTORY LARCENIES. (See Special Statutory Larcenies.) STEAM-ENGINE, for nuisance of, cited, 831. STOCK. (See Transfer of Stock.) STOLEN. (See Thing Stolen.) STOLEN GOODS, (See Receiving Stolen Goods.) for receiving money to help one to, cited, 854. STORE, indictment for larceny in, 588. STOREHOUSE, indictment for gaming in, 493. for larceny from, 588. STRANGLING. (See Choking and Strangling.) STREET. (See Way.) SUBORNATION OF PERJURY, (See Perjury.) indictmetit for, 968. SUFFERING CRUELTY TO ANIMAL, indictment for, 360. SUICIDE. (See Self-murder.) SUNDAY. (See Lord's Day.) SUPERSEDEAS, for perjury in petition for writ of, cited, 876. SUPPRESS EIOT, indictment for not assisting officer to, 847. SURGEON, indictment for practising as, unlicensed, 999. 701 TIM INDEX TO THE FORMS. SURREJOINDER, precedent of, cited, 1060. SURRENDERING HIMSELF, to be examined, bankrupt not, cited, 235. SURVEYOR OF CUSTOMS, for perjury before, cited, 876. SURVEYOR OF HIGHWAYS, for malfeasance by, cited, 687. SUSTENANCE. (See Necessary Sustenakce.) SWINDLING, (See False Pretences.) precedents for, cited, 430. SWINE, indictment for permitting, on sidewalk, 171. SWORD, indictment for assault with, and precedent cited, 212. TAKEN UP ARMS, for perjury in swearing that the party had not, cited, 876. TAX COMMISSIONERS, for perjury before, cited, 876. TAX AND OTHER REVENUE LAWS, (See Unlicensed Business.) precedents for ofEences against the, cited, 972-975. TEN DAYS, two utterings within, indictment for, 389. TENDERING. (See Uttering.) TENEMENT, (See Liquor and Tippling Shops.) indictment for nuisance of keeping, for selling liquor, 820. TERRITORIAL LIMITS, charging ofience committed out of, 89, 90, 538. TERROR, riding to excite, common-law indictment for, 262. carrying weapon to, 266. TESTIMONY. (See False Testimony.) TESTIMONY AT TRIAL, indictment for perjury in, 875. TEXAS, indictment in, for larceny, 609. THEATRE, for opening, on Lord's day, cited, 671. THEATRICALS, indictment for unlicensed, 1000. THING STOLEN, forms for description of the, 592, 598, 596-599, 603, &c. THIRD PERSONS, allegations of names of, 79. THREATENING LETTERS AND OTHER THREATS, indictment for tumultuous public threats of injury, 262. for threats to induce relinquishment of verdict, 827. threats made to deter witness from appearing, 328. other indictments for; namely, — formula, and precedents cited, 977. for sending threatening letter, cited, 978, Crim. Proced. II. § 1025. for threat to accuse of crime with intent to extort, 979. demanding things by threats, cited, 980. THROAT. (See .Cutting the Throat.) THUMB, indictment for lacerating and disabling the, 744. TICKETS. (See Lottery Tickets.) TIMBER, for putting, in street, cited, 1015. TIMBER AND TREES, indictment for malicious injuries to, 726. TIME AND PLACE, allegations of, 80-90. 702 INDEX TO THE POEMS. TUM TIPPLING-HOUSE, (See Liquok and Tippling Shops.) indictment for common-law nuisance of keeping, on Sunday, 662, note. precedent cited, 671. TITLE. (See Land without Title.) TOLL-DISH. (See False Toll-dish.) TOLL-GATE, for injuring, cited, 730, 985. TOLLS, OFFENCES AS TO, indictment for keeping false toll-dish, 982. for demanding or taking illegal tolls, 983. for evading toll, cited, 984. for other forms of the offence, cited, 985. TOOLS FOR COUNTERFEITING, indictment for possessing, 342, 343. TORTURING ANIMALS, indictment for, 849. TOWN MEETING, indictment for disturbing, 368. TRADES. (See Noxious and Offensive Trades.) TRADING NEAR CAMP-MEETING, cited, 372. TRAFFICKING IN APPOINTMENTS, to public ofBce, cited, 394. TRANSFER OF STOCK, for forgery of, cited, 475. TRANSPORTING ANIMAL, cruelly, indictment for, 359. TRANSPORTING LIQUOR, unlawfully, indictment for, 646. TRAVELLERS MEETING, indictment for disobeying law of road at, 1020. TRAVELLING, on Lord's day, indictment for unlawful, 667. TRAVELLING FOR ORDERS, for intoxicating liquor, indictment, 657. TREASON, (See Sedition.) for conspiracy in nature of, cited, 312, note, for sedition in nature of, cited, 942. indictments for ; namely, — English form for levying war, 987. levying war against United States, 988. adhering to enemies, 989. TREASURER. (See County Treasurer.) TREES. (See Timber and Trees.) TRESPASS TO LANDS, (See Forcible Entry and Detainer.) indictments for ; namely, — formula, and precedents cited, 992. to school lands, 993. entering on premises after being forbidden, 994. removing fence, 995. TRIAL. (See Testimony at Trial.) TRIPE-BOILING, indictment for nuisance of, 829 TRUANCY, for offence of, cited, 1008. TRUST, for seduction in violation of, cited, 951. TRUSTEES, for embezzlements by, cited, 411. TRUTH OF LIBEL, plea of, cited, 639. TUMULT. (See Brawl and Tumult.) TUMULTUOUS AND OFFENSIVE CARRIAGE, indictment for, 858. 703 USU INDEX TO THE FORMS. TURNPIKE. (See Way.) TWICE SELLING, land, indictment for, 487. TWO OR MORE, indictment for assault on, 221. by, assault on each other, 222. TWO UTTERINGS, on same day, within ten days, indictment for, 339. UNAUTHORIZED PERSON, against, for solemnizing marriage, cited, 737. UNBORN, indictment for conspiracy to murder, 287, note. UNCOVERED EXPOSURE, indictment for nuisance of, 804. UNDERWRITERS, (See Insurers.) indictment for conspiracy to cheat, by removing goods out of sinking ship, 286. UNFIT FOR LABOR, indictment for driving animal when, 357. UNINHABITED DWELLING, indictment for arson of an, 182. UNKNOWN MEANS, indictment for murder by, 520. UNKNOWN NAME, allegations of, 77, 79. UNLAWFUL ASSEMBLY, indictment for, 927. UNLAWFUL DRIVING. (See Driving.) UNLAWFUL FISHING. (See Fish and Game.) UNLAWFUL HERDING. (See Herding.) UNLAWFUL OATH, indictments for, cited, 853. UNLICENSED BUSINESS, (See Dog— Liquor Keeping and Sell- ing — Tax and other Revenue Laws.) indictments for ; namely, — formula, and precedents cited, 997. unlicensed dealing as merchant, 998. physician or surgeon, unlicensed, 999. theatricals, and other public shows, not licensed, 1000. for other sorts of unlicensed business, cited, 1001. UNLICENSED PLAT. (See Play Unlicensed.) UNLICENSED SALE, (See Liquor Keeping and Selling.) of liquor, indictment for, 649. UNMARRIED, for false pretence of being, cited, 425. UNNECESSARY CRUELTY, indictment for inflicting, on animal, 355. UNRULY BULL, for keeping, cited, 789, note. UNWHOLESOME AIR. (See Injurious or Offensive Air.) UNWHOLESOME FOOD AND WATER, (See Noxious and Adul- terated Food.) for nuisance of, cited, 835. " UPON THE PERSON," assault, indictment for, 217. USING ESTRAY, unlawfully, indictment for, 176. USURPING OFFICE, indictments for, 848, 849. USURY, indictment for, 1003. 704 INDEX TO THE FORMS. WAY UTTERING COUNTERFEIT COIN, indictments of various sorts for, 331, 337-340. attempts at, 341-343, note to 344. UTTERING FORGERIES. (See Forgeuy of Writings.) UTTERING, HAVING OTHER, counterfeit coia in possession, indictment for, 340. VACCINATING, indictment for neglect of, 514. VAGABOND AND ROGUE, for being, cited, 1009. VAGRANCY, indictment for, 1010. VALUABLE SECURITY, (See Security.) indictments for larceny of, cited, 605. "VALUABLE THING," indictment for gaming for, 492. VEAL, indictment for selling corrupted, 767. VEHICLES, standing in street, indictment for, 1014. indictment for collision of, contrary to law of road, 1020. VENUE. (See Change of Venue.) VERDICT, indictment for threat made to induce relinquishment of, 327. form of the, in record, 1070-1072. VESSEL. (See Destroying Property — Fitting out Vessel.) VICTUALLING HOUSE, for keeping, unlicensed, cited, 1001. VOLUNTARY ESCAPE, indictments against officer for, 895-897. VOTE. (See Refusing Vote.) VOTER, (See Election Bribery.) for giving money to, to repeat vote, cited, 249, note, to vote fox particular candidate, 249, note. VOTING. (See Election Offences.) WAGES, indictments for conspiracies to raise and reduce, 306, 307, 308, note WAGON. (See Vehicles.) WALKING STICK, indictment for assault with, and precedents cited, 212. WAREHOUSE AND ELEVATOR, for keeping, unlicensed, cited, 1001. WARRANT, (See County Warrant.) for conspiracy to destroy, cited, 312, note. indictment for forging and uttering, 470. WARRANT OF ATTORNEY, for forgery of, cited, 475. WATER. (See Stagnant Water — Unwholesome Food and Water.) WATERCOURSES, (See Way.) indictments for various offences against, 1026-1029. WAY, (See Public Way — Sidewalk.) indictment for obstructing, by hanging over it clothes to dry, 134. pleas in bar to indictment for non-repair of, 1046. indictments for offences against a public ; namely, — formula, and precedents cited, 1012. 45 705 WOK INDEX TO THE FORMS. WAY — continued. The ordinary and turnpike streets and roads, — obstructing common highway, usual English form, 1014. modified for American use, 1015. non-repair of public way, 1017. for not making a road, cited, 1018. for neglects by road officers, cited, 1019. travellers violating law of road at meeting, indictment, 1020. The railways, — obstructing track, 1021. for other offences against the railways, cited, 1022. The public bridges, — for not repairing, not building, pulling down, cited, 1023. The public squares and pleasure-grounds, — erecting building on public square, 1024. for other offences against public squares and pleasure-grounds, cited, 1025. The rivers and other like ways by water, — obstructing navigable river, 1026. obstructing creek, 1027. for obstructing, diverting, and otherwise injuring other watercourses, cited, 1028. The harbors and public ponds, — for offences against, cited, 1029. WEAPONS. (See Carrying Weapons — Dangerous Weapon — Deadly Weapon.) WEEK, allegation of day of, 85. WEIGHT OR MEASURE, for cheating by false, cited, 425. WELL. (See Poisoning Well.) WHEEL OF FORTUNE, indictment for keeping a, 499, 502. WHIP, indictment for assault with, and precedents cited, 212. WIFE, (See Married Woman.) indictment for conspiracy to entice, from husband, 298. against husband for manslaughter of, by neglect, 530. WILD FOWL, indictment for having, recently killed, 436. WILFUL AND WANTON WOUNDINGS. (See Wounding Animal.) WINNING. (See Fraudulent Winning — Losing ok Winning.) WITCH, for slandering one as being, cited, 635. WITHDRAWAL OF JUROR, record of entry of , 1035. WITHDRAWAL OF PLEA, record of entry of, 1035. WITNESS, (See Dissuading Witness— Testimony at Trial.) for conspiracy to prevent, giving evidence, cited, 312, note. indictment for hindering, 328. WITNESS FOR SELF, indictment for perjury as, 875, note. WITNESSES, form for indorsing, on indictment, 72. WOMAN WITH CHILD, for assault on, cited, 223, note. WORDS. (See Opprobrious Language — Opprobrious Words — Oral Words.) 706 INDEX TO THE FORMS. WEI WORK, (See Hours of Labor — Labor Offences.) indictment for doing unlawful, on Lord's day, 668, 669. WORKMEN, indictments for conspiracy to seduce, from employer, 303, 804. to compel, to join association, 305. to compel employer to discharge, 30.5. by, to raise their wages, 306. > against, to reduce wages, 307. WORSHIP, form for alleging time of, 86. WORTHLESS PAPER, obtaining money by, as false pretence, 423. WOUNDING, (See Malicious Injuries to Person.) indictment for, 19, note. policeman, with intent, 19, note. precedents for, cited, 223, note, 696. with intent to maim, 747. WOUNDING ANIMAL, wilful and wanton, as cruelty, indictment for, 352. indictment for, as malicious mischief, 717. WRECKED SHIP, indictment for larceny from, 588. WRIT, indictment for forging and uttering a, 463. WRIT OF CERTIORARI. (See Certiorari.) WRIT OF ERROR, attorney-general's fiat for, 1084. petition for, 1085. form of writ, 1086. coram nobis or vobis, 1087. return, 1088. certiorari for diminution of record, in aid of, 1089. assignment of errors, 1090. WRITINGS, (See False Writing.) indictments for larceny of, 601-605. WRITTEN BLASPHEMY AND PROFANENESS, formula of indictment for, and precedents cited, 243. 707 GENERAL INDEX TO THE SERIES OF SIX VOLUMES. Scope. — This index shows simply where to look for a thing. The further search is made easy by the minute divisions of the subjects and the section headings. Editions. — In the gradual construction of this series, there were some changes of matter from one work or volume to another, whereby renumberings of the sections became necessary. This index, therefore, is not adapted to any edition of Criminal Law prior to the fifth, nor is it adapted to the first of Criminal Procedure. And there were a few variations of number- ings in the editions still later, and in Statutory Crimes in the second edition, and especially there was much added to all ; so that not every reference in this index will be answered in any edition except the last. Abbreviations. — CLi Criminal Law ; CP. Criminal Procedure ; SO. Statutory Crimes ; DP. Directions and Forms ; i. Volume One ; ii. Volume Two. The figures denote the sections. Abandonment (see Childken, Neg- lect) of criminal intent, CL. i. 732, 733, ii. 11 22 ; of child, CL. i. 884, ii. 29 ; how indictment for assault by, DP, 218, 219 ; murder by, DP. 526 ; animal, DP. 358 ; child, DP, 753. Abated Process, statute not revive, SO. 1 80, note. Abatement (see Plea), when plead in, CP, i. 730. Abatement of Nuisance (see Nui- sance), CP, ii. 866, 870-872, SO. 21, 169, 252, 1070, DP, 1013 ; in way, CL, ii. 1285, CP, ii. 1052. Abatement of Proceedings, effect of, on limitations statute, SC, 262. Abbreviations (see Name), abolition of, in pleadings, CP, i. 343, and see 562, 606. ABC Table for gaming, SO, 864, 865. Abduction (see Kidnapping, Seduc- tion AND Abduction) of women, full exposition, SC. 616-624 ; meaning, SO, 614 ; indictable, CL, i. 555 ; in what connty, CP, i. 54. And see CP, i. 657, 772, note. How indictment for conspir- acy to procure, DP. 296, note. Abetting, Abettor, Abettors (see Aider, Accessort Before, Princi- pal, Second Degree, Solicitation), meaning, SC, 272 ; in polygamy, SC. 594, abortion, 749, gaming, 881, liquor sell- ing, 1029, 1045 ; how allegation against, in mayhem, DP, 743. Abortion (see Homicide, Pregnancy, Quick WITH Cnihi)), full exposition, SC. 742-762, DP, 137-146 ; attempted, CL, i. 328, 741, 769, ii. 114, note, 657, 691 ; woman as witness in, OP. i. 1173; how far statutory, SO, 740 ; at common law, OL, i. 509; how indictment for murder of child by, DP, 527, of mother, 528. "About," word, in allegation of time, CP. i. 390; of hour of night, OP. ii. 131, DP. 87. Abroad. See Foreign Countrt, Out OP Country. Absconding (see Escape) by prisoner, at trial, OP. i. 272, 273. Absence, proof of seven years', in polyg- amy, SC. 607 ; presumption of death from, SO. 607, 611. Absence of Prisoner. See Fbes- ENCB. 709 ACC GENERAL INDEX TO THE SERIES. ACQ Absence of Witness, continuance for, CP. i. 951 a. Absent Witness, using former testi- mony of, CP. i. 1194-1206. Absurdity in Statute avoided by in- terpretation, SO. 82, 90, 9.3, 200. "Abundant Caution," matter intro- duced into precedents for, DF. 17. "Abuse," word, in carnal abuse, SO. 487, 489. Abuse of Children. See Caenal Abuse, Rape. Abuse of Family, OL, i. 538, 560. Acceptance, meaning, SO, 338, note, 1016, note; how indictment for forging, uttering, DF. 472. And see for other points, CL, ii. 481, 535, note, 562, 588, CP. ii. 471. Accessory, Accessories (see , Abet- tor, Accessory After, Accessory Before, Accomplice, Aider, Com- pounding, Principal and Accessory, Procurer, Substantive Crime), /W/ exposition, including what is analogous in misdemeanor and treason, CL. i. 660-708, CP. ii. 1-15, DP, 113-122; distinguished from principal, CL, i. 635, 649-654 ; to one person, proof of more, CL, i. 792 ; when charged as principal, CL, i. 803 ; when crime is out of State, CL. i. Ill et scq. ; locality of indictment against, CP, i. 57, 58 ; at fact, how allege, OP. i. 332 ; join- ing principal, CP, i. 467 ; in mayhem, CP. ii. 854; in statutory felony, SC, 139 ; not " aider," SO, 272 ; in child murder, SO, 770, 771, 775, gaming, 881, liquor selling, 1029; how indictment against, in arson, DF. 190, murder, 539, burglary, 256. Accessory After (see Prison Breach, &c.), full exposition, including what is analogous in misdemennor and treason, CL. i. 690-708, CP, ii. 2, 7-11, DP, 114, 118, 122; wife to husband, CL, i. 365; by obstructing arrest, OL. i. 465. Accessory Before (see Procurer, So- licitation), full exposition, including what is analogous in misdemeanor and treason, CL, i. 672-689, CP. ii. 2, 4, 7-9, 11, DF, 113, 114, 116, 117, 119, 121; in felony out of State, OL, i. HI et seq. ; in self-murder, DF, 953. Accident (see Carelessness, Misad- venture, Neglect), omitting item by, CL. i. 307 ; as avoiding forfeiture, OL. i. 824. 710 Accomplice, Accomplices (see Abet- tor, Accessory, Aider, Particeps Criminis), full exposition, CP. i. 1156- 1172 ; charge of felony by, CP, i. 182; as complainant, CP. i. 182, 719; in conceal- ment of birth or death of child, presence, CP, i. 465, SC. 770, 771, 775, gaming, 881 ; confessions of, in adultery, SO, 678 ; whether woman is, in own abortion, SO. 749, 760, confirmation, 760. Account, false swearing to an, CL, ii. 1027, and see Perjury. " Accountable Receipt," meaning, CL, ii. 564, SO, 341, note. Accounting, indictment against officer for not, DF, 687. Accounts, See Book of Accounts. Accusation, no punishment without, CP. i. 79, how broad, 80 ; prisoner's right to know, OP, i. 88 ; proofs to cover the, OP. i. 127-129; must be an, before magis- trate, OP, i. 230 ; one pending, not bar another, CP, i. 424 ; conduct under, as evidence of guilt, OP, i. 1253, 1254 ; ad- missions before and after, distinguished, OP, i. 1257. Accuse of Crime, attempt to extort money by threat to, DF, 979. " Accused of Crime," meaning, SO. 242. Accused Person (see Criminal De- fendant, Liberal Interpretation, Strict), right of, to know accusation, CP, i. 104-110; every right of, OP. i. 113-116; waiving rights, OP, i. 1 20 ; testi- fying or not, CP, i. 1186; conduct of, as evidence, CP, i. 1253; statutory words favoring, liberally construed, SO. 227 ; statutes contract and expand to favor, SO, 230. Accustomed Range (see Animals), moving stock from, SC. 413 ; animals on, deemed in owner's possession, SO, 428; offence of driving cattle from, SC. 452 ; how indictment, DF. 167. Acquittal (see Jeopardy Eepeated, New Trial), when not bar second prose- cution, CL, i. 1021, 1026, 1054 ; discharge of jury as, CP, i. 821 ; when court should order, OP, i. 977 ; of joint defendant, OP. i. 1020, 1021 ; costs after, CP. i. 1317 ; nolle prosequi as, OP, i. 1387, note, 1394; form of discharge on, DP. 1072. Acquittance (see Forgery), meaning, CL, ii. 565, 578, 785, SC, 343 ; how in- dictment for forging uttering, DF 471. And seeCL. ii. 529, 551. ADD GENERAL INDEX TO THE SERIES. ADU Act, Acts (see Consequences, Homi- cide, Intent, Overt Act, Particu- lar Acts, Specific Offences, &c.), no ofFonce without, &c. CL. i. 204, 208, 228, 430-597 ; and intent must concur, CL. i. 204-208, 287 ; whether concur in point of time, CL, i. 207, 642, 692 ; may be less as intent is greater, CL, i. 226, 227, 760, 768; producing unintended result, CL. i. 323-336, 397 ; evil, result- ing in good not meant, CL. i. 325 ; the crime measured by the result, CL. i. 327 ; but nature of intent affects degree of crime, OL. i. 327 ; chance, CL. i. .331 ; one, producing many offences, CL. i. 778, 782, 793, 1060, SC. 143 ; locality of, CP. i. 53-55; every, proved, CP. i. 1085; declarations accompan)ing, OP. i. 1086 ; one's own, evidence against him, CP. i. 1249 ; of one conspirator as proof against another, OP, ii. 229 ; defendant's, after adultery charged, SO. 681. Act of Bankruptcy, various sorts of, DP. 233. Act of Congress, precedence of, among laws, SO. 11, 15. Act of Disturbance of meeting, how allege, DP. 364. Act of Incorporation (see City Char- ter, Incorporation, Municipal Cor- poration), whether, a public statute, SO. 405 ; how allege, SC. 405, 406. Act, Acts, of Legislature (see Stat- utes), construed together, SO. 82, 86, 87. Acting in OfBoe as proof of official character, CP, i. 1130, 1131. Action (see Civil Action, Qui tam Action, Suit), not for thing contrary to statute, SC. 254, 255, 1030, 1031 ; meaning, SC. 350. Actor, conspiracy to injure, by hissing, DF. 302, CL. ii. 216, 308, note, and see OL. i. 542, note. "Actual Violence," words in statute against rape and carnal abuse, SC. 494 ; in indictment for attempted rape, DF. 911. "Actually Occupy," meaning, SC. 145. "Adapted to Coining," meaning, SC. 211. Addition, Additions (see Weong Ad- dition), full exposition of doctrine of, CP. i. 671-^675 a, DF. 74, 78; quashing indictment for want of, OP. i. 772 ; method of alleging, DF. 74, 75. Addition to Building, what is an, SO. 292, note. Addresses (see Trial) to jury, CP. i 962-964, 967-982 a. Adhering to Enemies (see Treason) of country, CL. ii. 1227 ; how the indict- ment for, DF. 989. "Adjoining" D'welling-house, mean- ing, OL.ii. 19, note, SC. 223. Adjournment, Adjournments (see Continuance), of trial, OP. i. 966 il, 993 ; how of, in record, OP. i. 1352. Adjudged Cases, Adjudications, as establishing legal doctrine, OL. i. 377, 378, SC. 125, DF. 4 and note. " Administer or Cause to be Admin- istered," OP. ii. 647. " Administer Poison " (see Supply or Providk), meaning, in attempt to mur- der, SC. 225, in abortion, 747 ; with in- tent, &c., offence of, SO. 746-748. Administering Poison or Drug (see Poison), attempts by, OL. i. 741, note, 756 ; how the allegations of, OP, ii. 645, DF. 139 and note, 140, 141, 213,533, 714. Administrator (see Executor), laying ownership in, OP, ii. 725 ; for " executor " in statute, SO. 190 6 ; limitations statute running against, SC. 261 a. Admiralty Jurisdiction. See High Seas, Maritime Jurisdiction. Admission, Admissions (see Confes- sions), full exposition, CP, i. 1247-1262 ; contradicting alibi, OP. i. 1068, otherwise rebutting, 1069; contrary to dying dec- larations, OP. i. 1209 ; as to statute, SC. 37 a ; of marriage, SC. 610. Adopted statute or statutory term, SO. 97. Adulterate Manufacture, how indict- ment for conspiracy to, DF, 311. Adulterated Food and Water. See Noxious AND Adulterated Food. Adulterated Liquor, how indictment for selling, DP. 771 ; laws preventing adulteration, SC, 988 b, note, 1013. Adulterated Milk, statutory offence of selling, OL. i. 303 a, note.SC. 1124-1127; how the indictment, DP. 770. Adulterer, larceny of husband's goods by, OL. ii. 872-874. Adulterous Intent in proof of adultery, SO. 679-684. Adultery (see Living in Adultery, Solicitations of CHASTiTr),/»//e.i7)o- sition, SC. 653-690, DF. 147-162 ; not in- 711 AFF GENERAL INDEX TO THE SEEIES. AGE dictable without statute, CL. i. 38, 39, 501 ; husband killing wife taken in, CL. ii. 708 ; conviction of fornication on in- dictment for, CL. i. 795; conviction ofj on indiutmeiit for rape, OP. i. 419, ii. 956 ; solicitation to, CL, i. 767, 768 ; con- spiracy to commit, CL. i. 768, ii. 184, Df. 294 ; conspiracy to charge with, OP. ii. 241. " Adultery or Fornication," meaning, CP. i. 587. Adverb, in allegation, CP. i. 556, 558. ■• Advertisement " of lottery tickets, SC. 2U7, 958, 959. Advertising lottery tickets, SC. 958, 962 a, DP. 679. Advice, effect of, in adultery, SC. 662, in illegal voting, 820, 824, 825 ; in mainte- nance, CL. ii. 128. Advisor. See Accessory, Solicita- tion, &c. Advocate (see Lawyer), duty of, as to defence, CL. i. 376, note, par. 12. Affidavit, Affidavits (see Forgery, Perjury), false, indictable, CL. i. 468 ; of infamous persons in own cases, CL. i. 973 ; not in form prescribed by statute, SC. 255 ; for change of venue, CP. i. 73, continuance, 951 a, surrender of fugitive, 222 ; false, to defraud, CP. i. 535 ; com- plaint before magistrate termed, CP. i. 717 ; to sustain motion for new trial,DF. 1076 ; proeedure and indictment for per- jury in, CP. ii. 910-912, 915, 916,921, 933 c, DP. 873, 874. Affinity, in maintenance, CL. ii. 128 ; as to juror, CP. i. 901 ; when ceases, CP. i. 901. Affirmance, in part, on writ of error, CP. i. 1372, 1373. Affirmation (see False Affirmation), what, and forms of, CL. ii. 1018 ; in na- ture of perjury, DF. 877. Affirmative Statute (see Statutes), defined, OL. i. 270, SO. 153; repeals by, SC. 126, note, 154-162 ; in derogation of prior law, how construed, SC. 189 a. Affray (see Assault, Duelling, Fight- ing, Prize-fight, Riot, Unlawful Assembly), full, exposition, OL. ii. 1-7, CP. ii. 16-30, DF. 924, 925; indictable, OL. i. 535 ; right to suppress, OL, ii. 653-655, CP. i. 166, 183; setting out particulars in indictment, OP. i. 527 ; separate trials, CP. i. 1023 ; growing out of duel, OP. ii. 303 ; in what place com- mitted, SO. 298. 712 "Aforesaid," refers to what, in indict- ment, OP. i. 512; further of, OP. i. 379, 689 a. "Aforethought" (see Malice Afore- thought), ill law of murder, CL. ii. 677; in indictment for murder, CP. ii. 499, 540-547, 564, 574, 575. "After," in statute excluding evidence, SO. 249 a. After-discovered Evidence, new trial for, CP. i 1279, and see New Trial. " Against Form of Statute " (see Con- cluding Part), when required, OP. i. 601-607, SO. 164, 167; repeated in each count, OP. i. 429, DF. 67 ; singular or plural, SO. 167; rejecting, as surplusage, SC, 164; in champerty and maintenance, CP. ii. 155, murder, 499, rape, 950, sod- omy, 1014; in larceny of animals, SO. 427 ; form of, DF. 66. " Against her 'Will," in rape, CL. ii. 1114, OP. ii. 951, SO. 480-482; in carnal abuse, SO. 486 ; in forcible marriage, CL. i. 555. " Against his 'Will " in forcible trespass, CP. ii. 390, larceny, 752 a, rape, 951, rob- bery, 1006. " Against the Peace " (see Conclud- ing Part), when required, CP. i. 648- 652 ; in each count, CP. i. 429, DF. 67 ; quashing indictment for omitting, CP. i. 772, note ; form of, DF. 66. Age (see Immature Age, Infancy, Old Age, Minors), how allege, CP. i. 557, ii. 954, 976, DF. 907, note, 908, 909 ; how prove, CP. ii. 818, SO. 491, 1048 a; of es- tray, in indictment, SC. 464 ; of woman, in rape and carnal abuse, SC, 482, 486, DF. 907, note, 908, 909 ; mistaking girl's, in cai-nal abuse, SO. 490, in seduction, 631 a, 632. " Age of Consent" in polygamy statute, SC. 584. Agent, Agents (see Clerk, Embezzle- ment, False Pretences, Innocent Agent, Principal and Agent, Ser- vant, Town Agent), defined, CL. ii. 331-333, SO. 271 ; who may be, SO. 423, 1004 ; respective guilt of, and principal, CL. i. 355, 564, 631, 658, 673, SO. 1024; becoming accessory by, CL. i. 677 ; con- sent by, to taking in larceny, OL. ii. 822 ; laches by State's, SO. 103, note; false pretence to, permit from, SO. 134 ; doing business on own account, SO. 1002; sell- ing liquor under license to principal, SO. ALL GENERAL INDEX TO THE SERIES. AME 1004, 1024 ; how allege acts hj, CP. i. 332, SO. 1045 ; prove, CP. i. 488 d, SO. 1049. Agent for Iiiquor Selling, indictment for not appointing, DF. 684. Aggravated Assault (see Aggbata- TiON, Assault, &c.), how indictment for, DF, 203, 211-226, 223. Aggravation, Aggravations, allega- tion and proof of matter in, OP. i. 417- 420, DF. 203 ; ill assault, OP, ii. 63-64, 658, homicides, 541, 563, 564 ; as to punish- ment, SO. 171. Agreement (see Contkact) against statute or its policy, void, SO, 138 a, 254, 1030, 1031 ; to sell, not a sale, SO. 1013. Agreement of Jury, judge not attempt to coerce, OP. i. 982. Aid and Abet. See Accessokt, Com- bination, Conspiracy, &c. Aider (see Second Degree, &c.), mean- ing, SO. 272. Aider after Fact (see Accessokt After, See), in misdemeanor, how in- dictment, DF. 122. Aider at Pact (see Principal Second Degree), in poaching, SO. 83, polyg- amy, 594, adultery, 659. Air (see Injurious or Offensive Aik), rendering, unwholesome, OP. ii. 877 a. Ale-house (see Liquor and Tippling- SHOPS, Tippling-house), when indict- able, OL, i. 504, 505, 1113-1117; disor- derly, SO. 984 ; on Lord's Day, OL. ii. 962. Alia Enormia. See Other Wrongs. Alias Dictus, in pleading, CP. i. 681 ; form of, DF, 74. Alibi, full exposition, OP. i. 1061-1068 ; perjury in, CL. ii. 1037. Alien, Aliens, not grand juror, CP. i. 851 , 884, or petit, 923 ; jurors for, defendant, CP, i. 927-930 ; jeopardy where juror is an, OL. i. 1039 ; treason by, OL, ii. 1235 ; punishing, for voting out of State, SO. 813. Alien Enemy, when murder to kill, OL, i. 134; plea of, OP. i. 324. Alienation, strict construction of statutes in restraint of, SO. 119. "All," context restricting meaning of, SO. 102 ; in averment of nuisance, CP, ii. 862. "All Others," meaning, in statute, SO. 245, 246. " All Property," meaning, in statute, SO, 156. Allegation, Allegations (see Con- junctive, Disjunctive, Indictment, Written), all of importance to pris- oner, required, OP, i. 517-519; quashing indictment for omission of material, OP. i. 772 ; cohsent as dispensing with, CP, i. 96 ; expanding, beyond statutory words, SO, 942, 943, CP, i. 623-630; acquittal by reason of defective, CP, i. 977 ; proofs, SO, 800 ; some needless, pointed out, DF. 43, 49, OP, i. 499-504. Allegiance (see Expatriation, Con- trary TO Allegiance, Oath of Al- legiance), wliether cast off, CL. i. 512; two kinds of, CL. ii. 1235 ; how allege, in treason, DF. 987, note, 988, note. Alley (see Street), drunk in, SO. 973, "Alter," "Altering" (see roRGERY), bank-bills, OL, ii. 573 ; in forgery, SO. 217 ; in forgery indictment, CP. ii. 426, brand, SC. 461. Altering Books, bankrupt's, DF, 237. Altering Instrument, how allege for- gery by, CP. ii. 419, DF. 458, 474. Altering Mark (see Animals, Mark) on cattle, unlawfully, DF. 164, 166, CP. i. 629, note, CL, ii. 995, SC. 454-461. Altering Sentence (see Amendment), CP. i. 1298. Alternative, sentence in the, OP. i. 1307. Alternative Clauses (see And, Or), indictment on, OP. i. 434, 436, 586. Alternative Expressions (see Or), in general, OP, i. 535-592 ; in indictment for forgery, CP. ii. 438-440. Alternative Provisions (see And, Clause, Or), how interpret, and plead- ings on, SO, 244. Alum in Bread (see Noxious and Adulterated Food), statute against putting, construed, SO, 1125, note. Ambassador. See Embassador. Ambiguity, Ambiguities, in indict- ment, OP, i. 325, 354-.'?56, 489, 510, 512; in statute, SO, 41 ; in instrument forged, how allcKation, CP, ii. 418 a. Amendatory Statutes, constitutional provisions concerning, SO. 36 6, note; effect of, as repeal, SO. 1 52 a. Amendment (see Altering Sentence, Statutes of Jeofails, Withdraw- ing Plea), of indictment, CP. i. 97, 98, 705-711 ; of plea by withdrawal, &c., OP, i. 124, 747 ; of complaint, CP. i. 234, 721; of information, CP, i. 714, 715; of verdict, GF. i. 1013; of docket entries 713 ANT GENERAL INDEX TO THE SERIES. APP and record, CP, i. 1298, 1341-1345 ; stat- utes of, and jeofails, CP. i. 705-711. Amends (see Compounding), right to take, CL. i. 713, 714. American Art Union is a lottery, SO. 955. American Statutes compared with Eng- lisli, SO. 118. Amicus Curiae may do what, OP. i. 308, 759, 877. Amnesty (see Pardon), CL. i. 898. Amusement. See Places of AjinsE- MENT, Theatre. Analogous Offences, not within limita- tions statute, SO, 260. Ancient Interpretation compared with modern, SO, 118. Ancient and Modern, division of stat- utes into, SO. 42. "And" (see Conjunctive Sentences, Or), effect of, in statute, CL. i. 941 ; in- terpreted as " or," SO, 243 ; in indictr ment, for " or " in statute, CP, i. 484, 586, SO, 244, 487, 489, 701, 758; not com- monly proper in alleging negative, SO. 1043 ; used where law disjunctive, CP. i. .585-592 ; in connection with " then and there," CP, i. 408. Animals (see Accustomed Range, Beat, Brand, Cattle, Cruelty, Dan- gerous, Domestic, Estrat, Game, Lower, Mark, Trespassing, Wild), full exposition, SO, 452-464, DP, 163-177 ; are " chattels," SO, 344 ; larceny of, un- der statutes, SO. 425-429, DP, 606 ; ma- licious mischief to, SO, 431-449, DP, 702, 705,708-717; abandoning, DP. 3.')8 ; word, includes fowls .and birds, SO. 1104. Animals to Keep and Feed, larceny of, CL, ii. 869. •■ Animals at Large " (see At Large, Estrats), construction of statute against permitting, SO, 223 ; offence of, SO, II se- ll 39. Animus Purandi, in larceny, OL, ii. 842 et seq. " Another," in count subsequent to first, OP, i. 430. Another Crime (see Crime, Offence Repeated), when permissible to prove, OP, i. 1120-1129, ii. 53,628. AnsTver. See False Ansvi'ER. Ans-wering Over on demurrer, OP, i. 782-786, after plea, 754-757. Antagonistic Defences, severance for, OP, i. 1019. 714 Antagonistic in Part, statutory provis- ions, construed how, SO, 126. Antecedent, word referred to what, OP. i. 355, 512. "Any Bank-note" (see Bank-note) includes other States, SO, 205 ; how alle- gation for larceny of, OP, ii. 732. "Any other Property," meaning, SO. 246. " Any Person," limited by interpretation, SO. 132. " Anything to Say," question of, OP. i. 1293 ; as given in record, DP, 1070. Apartment, See Separate Families. Ape, not subject of larceny, OL, ii. 773. Apostasy, offence of, OL, i. 497. Apparatus for Gaming. See Keeping Gaming Device. Appeal (see Error, Exceptions, Jeop- ardy, New Trial), by prosecutor, CL, i. 1024-1027; for wrong discharge of jury, OL, i. 1041 ; granted by force of constitution, OP, i. 894, SO, 89 ; from con- viction by magistrate, OP. i. 723 ; jury trial by, CP. i. 893 ; clogging, OP, i. 894 ; revision by, OP. i 1264; as to writ of error, CP, i. 1370 ; old law gives, in new cases, SO, 87 ; statutes extending, SO, 120, 126, note; repeal of statute after, SO, 177; marrying after, fi'om divorce de- cree, SO, 229 ; the hearing on, is " trial," SO, 347 a ; the old proceeding termed an, OL, ii. 1001, note, par. 4. Appeal Clause in statute, SO. 60. Appearance (see Arrest, Magistrate) of defendant, how secured, OP. i. 30-34, 225 et seq., 265 et seq. ; as to recogni- zance, OP, i. 264 a, 264 b, 264/ Appearance Bond (see Recogni- zance), CP, i. 264-264 e. Appearances, men justified in acting from, CL, i. 303, 303 a, note, 305, 850, note. Appointment to OfBce (see Bribery, Office, Officer), corrupt agreement as to, OL, ii. 86 ; whether allege, DP, 328, note. Apprentice, Apprentices (see Mas- ter, Servant), neglect to supply, with food, CL, i. 364, 557 ; enticing, CL, i. 582 ; immoderately beating, OL. i. 887 ; wheth- er, servant, OL, ii. 349 ; offences relating to, DP, 308, note, 577, note. See also, CL, ii. 620, 660. Apprenticeship, English laws of, with us, OL, i. 508. AKB GENERAL INDEX TO THE SERIES. ASP Appropriation Act, as to salary, SO, 130 ; funds insufficient, SO. 156 a. Approvers (see Accompliob), OP. i. 1156-11.^8. "Appurtenances," meaning, SO. 291, note. Aqueduct Pipe, destroying, DF. 729. Arbitration, how statutes providing, con- strued, SO. 120. Arbitrator, Arbitrators (see Awakd, Kefbrees), wliether, can be juror, OP. i. 902, 901 , whether administer oath, SO. 137 ; false swearing before, OL. ii. 1026; bribery of, DF. 250. Ardent Spirits (see Liquor Keeping AND Selling), whether furnish, to juror, OP. i. 999. Area Gate (see Dwelling-house), not part of mansion, OL. ii. 96. Argue (see Counsel, Trial), right of counsel to, OP. i. 313. Argument, illegitimate, not permitted counsel, OP. i. 975 a, 975 6. Argumentative, indictment should not be, OP. i. 508. Arguments of counsel, OP. i. 960-975 b. Armed Vessel, foreign, exempt from our laws, OL. i. 130. Arms (see Bear Arms, Cabkting Weapons, Loaded Arms, Pistol), when carrying, indictable, OL. i. 540 ; a writing is not, SO. 217 ; what are, SO. 793. Arms of the Sea (see Bats, Harbors, Territorial Limits) are within coun- ties, CL. i. 146 ; jurisdiction of United States in, CL. i. 175. Army and Navy, sovereignty of coun- try goes with, OL. i. 130. Arraignment, full exposition, OP. i. 728- 733 b ; first step, OP. i. 37, after change of venue, 74, prisoner present, 268 ; not deemed part of " trial," SO. 347 a ; how in record, DF. 1070. Array, challenge to the, OP. i. 876 et seq., 932 a. "Arrayed in Warlike Manner," in indictment for affray, CP. ii. 22. Arrest (see Officer, Warrant), full exposition, G?, i. 155-224 6; refusing to assist in, OL. i. 469, DF. 845, 846 ; ob- structing, CL, i. 465 ; of embassador, OL. i. 126 ; abroad or on high seas, OL. i. 120; wrongful, in foreign country, OL. i. 135 ; resisting illegal, CL. i. 868, legal, 39 ; what constitutes, OL. ii. 26 ; of per- sons obstructing process, OL, ii. 248 ; in presence of court, OL. ii. 25J ; homicide in making, CL, ii. 647-655 ; in resisting, CL. i. 440, ii. 699, 728 ; is first step, CP. i. 30, 31 ; by bail, OP. i. 249 ; after escape or breach of pardon ■ ondition. OP. i. 1382-1385; after bail found insufficient, OP. i. 1386 ; of prostitutes, as evidence of bawdy-house, OP. ii. 1 1 7 ; statute and by- law as to, conflicting, SO. 23 ; how con- strue statute authorizing, SC. 198 ; on Lord's diiy, SO. 198; breaking to make, SO. 290 ; trial for polygamy in place of, SC. 587, 599 ; averment of, as to lawful- ness, SC, 796. Arrest of Judgment (see Jeopardy, Motion in Arrest) , full exposition, OP. i. 1282-1288, DP, 1079 ; sundry particu- lars, OP. i. 42, 269, 277, 424, 443, 470, 813, 887-889, 1038, 1293, 1368, 1370, SO. 347 a. Arrested, having weapon when, SO. 796, DF. 268. Arsenals (see Dockyard), power of Congress over location of, OL, i. 159. Arson and Burnings (see Burn, Burn- ing, Dwelling-house, House, Set Fire to, &c.), full exposition, OL, ii. 8-21, CP. ii. 31-53, DF, 178-199; indict- able, OL, i. 224, 559 ; own property, OL. i. 514 ; nature of offence, OL, i. 577 ; to outhouse, and it communicates, OL. i. 318; resulting in death, CL. i. 781 ; in attempt to do something else, OL, i. 329 ; burning own house to burn another's, OL. i. 765 no degrees in, OL. i. 334; unin- tended, intent felonious, CL. i. 334 ; aver- ring value, OP. i. 540, 567 ; ownership, OP. i. 573 ; " set fire to " in indictment, OP. i. 613; of jail, SO. 207 ; laying "dwelling- house," SO. 213 ; "house," SO. 277, 289 ; what the burning, SC, 310, 311. Art Union is a lottery, SC. 955. Articles of the Peace, false oath to, CL. ii. 1024. Articles of War established by Con- gress, CL. i. 50. Artifice, confessions obtained by, CP. i. 1226. " As Follo-ws," meaning, in indictment, CP. i. 559. "As True," in indictment for uttering forgeries, DF. 468, note; for possessing counterfeit coin, CP. ii. 464. Asportation (see Larceny, Trespass), CL. ii. 794-798 ; in robbery, OP. ii. 773, 715 ASS GENERAL INDEX TO THE SERIES. ATT 1001, CL, ii. 1161; not in "theft" in Texas, SO. 414; in larceny of animals, SO. 428. Assassination, publicly advocating, GL. i. 768 a. Assault, Assault and Battery (see Aggkavated Assault, Attempt, Bat- TEKT, Fighting, Neglects, Pkizb- piGHT, Wounding), fuU exposition, OL. ii. 22-62, 69 a-72 e, CP, ii. 54-70 a, SO. 500-51.5, DF. 200-229; what is, OL, i. 548 ; with intent, CL. i. 553; inflicted on one at his request, CL. i. 260 ; with in- tent, drunkenness excusing, CL, i. 413; intentional killing by, CL, i. 736 ; by cor- poration, CL. i. 422 ; by boy, to commit rape, CL, i. 746 ; conviction for, on charge of riot, &c., CL. i. 795 ; on charge of as- sault with intent, CL. i. 795 ; whether, also rape or murder, CL. i. 788 ; homi- cide in repelling, OL. i. 843, ii. 698-718; in defence of property, CL. i. 861, person, 867 ; allege facts which enhance punish- ment, CP, i. 82, ii. 579 ; " then and there " in indictment, CP. i. 411, 413 ; on or by more persons than one, CP. i. 437 ; join- der of defendants, OP. i. 469 ; surplusage in indictment, CP. i. 481, note; allege name of injured person, OP. i. 548 ; "not amounting to intent," &c., OP. i. 617; how allege joint, CP. ii. 6 o; with intent to kill, CP. ii. 77-79; other aggravated, OP. ii. 80-85 ; alleging, in disturbing meeting, CP. ii. 297 ; growing out of duel, CP. ii. 303 ; alleging, in false im- prisonment, CP. ii. 366, in homicide, 512, 513, 554 ; with intent to poison, OP. ii. 646 ; in kidnapping, OP. ii. 692, maim, 859, rape, 955, riot, 993, 994 ; conviction for, on charge of riot, CP. ii. 1 000 ; with intent to kill, the procedure, OP. ii. 651- 660 ; same, on an officer, CP. ii. 881-886, DF, 839 ; meaning of word, in statute, SO. 216, OL. ii. 53, note; with dangerous weapon, whether for jury, SO. 320, nots ; to commit rape or carnal abuse, SC. 496- 499 ; attempted abortion may be an ag- gravated, SO. 744 ; same blow wounding two, CL. i. 1061 ; procurer, held as doer, OL. i. 686 ; conviction for, on charge of manslaughter or rape, CL. i. 808 ; by parent on child, OL. i. 881, 882, master on servant, 887, husband on wife, 891 ; in indictment for false imprisonment, OP. i. 438, note; joinder of offences, OP. i. 452 ; conviction of, on indictment for 716 affray, CP. ii. 25 ; by two, on each other, CP. ii. 26 ; with intent to kill, OP. ii. 651- 654 ; statutory, in Indiana, Texas, &c., SO. 500-515 ; alleging, in abortion, DF. 139 ; word, in indictment for assault and battery, DF. 206, note; how indictment for conspiracy to commit, DF. 292 ; whether allege, in homicide, DF. 520, note ; in murder through abortion, DF. 528, note ; verdict for, when more charged, DF. 556, note ; indictment for, with intent to kill, DF. 558 ; in indict- ment for mayhem, DF. 742, note, with intent to maim, 748 ; whether allege, in rape, DF. 905, note; with intent to ravish, DF. 910, 911, to rob, 937, to commit sodomy, 965. Assembled, Assembly (see Bistusb- ING Meetings, Unlawful Assem- blt), in affray, CP. ii. 22, disturbance of worship, 298, riot, 995 ; as to overt act, in treason, CL. ii. 1231. Assent. See Consent. "Asses" are " cattle," SC. 212, 442. Assignable, whether office is, SC. 88. Assignee of liquor license, not sell, SC. 1004. Assignment, Fraudulent. See Fbaitd- ULENT Conveyances. Assignment of Counsel to prisoner, CP. i. 296-306, and see Counsel fob Defendant. Assignment of Errors, CP. i. 1371, DF. 1090. Assignment of Perjury (see Pee- jurt), DF. 873. Assistance, what, makes accessory after, CL. i. 695-698, and see Accessory After. Assistsint Clerk of Court, whether an officer, SC. 271 a. Assistant Overseer of Poor, servant in embezzlement, OL. ii. 336. Assuming. See Officer. "At" (see With), in allegation, equiva- lent for "in," OP. i. 378, DF. 80, note; for " with," SC. 908. "At End of Year," meaning, SO. Ill, note. At Large (see Animals), meaning, as to domestic animals, SC. 1137, 1139. "At Least," connected with " days," SO. 110. " At or Near," in averment, CP. ii. 290. Attached to Freehold, things, as to larceny, SO. 416, and see Larceny. ATT GENEBAL INDEX TO THE SERIES. AWN Attachment (see Contempt of Couet), resisting, of one's goods, CL. ii. 1012; process of, CL. ii. 272, 273, OF. i. 207, 959 6, DF. 318. Attainder, Attaint, Attainted (see AuTRErois Attaint, Ekeoneoos Sen- tence, Jeopakdy, Sentence), mean- ing, OL. i. 967, SO. 348 ; effect of, CL. i. 967, 970 ; constitutional guarantee, CP. i. 86 ; writ of error to reverse, CP. i. 1363. Attempt (see Accessory Befoee, As- sault, CoNsriEACT, Homicide, Lar- ceny, Possessing, Solicitation, Sub- stantive Ceime, Uttee, and the titles of the several offences to commit which the attempt is niade),/«W exposition, OL. i. 723-772 n, OF. ii. 71-97, DF. 100-112; indictable, CL, i. 237, 434, 435, 540, 604, SO. 138 ; must be also act, CL. i. 204-206 ; to do bodily barm, OL. i. 441 ; to bribe, pre- vent witness, procure perjury, &c., CL. i. 468 ; to commit sodomy, ground for di- vorce, CL. i. 503 ; to kill, CL, i. 547 ; as- sault with intent is, OL. i. 553 ; acts tending to mischief, CL. i. 540 ; counsel- ling to crime, CL. i. 675 ; to commit mis- demeanor through felony, CL. i. 788 ; as to convicting for, on charge of substan- tive offence, OL. i. 809 ; forfeiture, CL, i. 823 ; condition against, to alien, CL. i. 823 ; an element in conspiracy, CL. ii. 191 et seq. ; in what county indictable, CP. i. 57 ; referring to antecedent count, CP. i. 431 ; duplicity in laying, CP. i. 437, ii. 93 ; to kill, on statute, how indictment, CP. i. 613; to commit arson, CF. ii. 49, proof, 51 ; word, in indictment for, CP. ii. 80 ; procedure for, in false pretences, OF. ii. 194-196 ; in embracery, CP. ii. 347, homicide, 643-663, perjury, 938, 939 ; in rape and carnal abuse, CF. ii. 976-979, SO. 492-499 ; uttering, analogous to, SO. 306 ; to kidnap, or steal heiress, SC. 619 ; to debauch, SO. 623 ; solicitation to incest, SC. 730 ; at abortion, SC. 744, 748 ; how the indictment, SC. 752, DF. 100-112 ; to commit abortion, DF. 138, note, 140, arson, 191-195, assault and battery, 224, 225, burglary, 258-261, counterfeiting of foreign coin, 343 ; how indictment for, to prevent one from voting, DF. 392, to cheat by false pretences, 434 ; how for, in forgery, uttering, &c., DF. 479; to com- mit homicide, DF. 549-559, larceny, 611- 614, rape and carnal abuse, 910-913, self-murder, 954. Attorney (see Counsel foe Defend- ant, Lawyers, Prosecuting Offi- cer) may defend the guilty, CF. i. 94 ; when prisoner plead by, OP. i. 268 et seq. ; form of the plea by, DF. 1049 ; presence of, in place of prisoner, OP. i. 270, 271 ; prosecuting, " a public officer," SC. 271 a; champerty by, CL. ii. 132, contempt by, OL. ii. 258 ; removal of, from office, OL, i. 895, ii. 270. Attorney-G-eneral (see Fiat, Pros- ecuting Officee, Solicitor-Gen- eral), criminal informations by, CF. i. 141-144; employment of, for defence, CP. i. 300-302. Auction, Auctioneer, defined, SC. 1094 ; whether selling by, is peddling, SC. 1078 ; embezzling proceeds of sales, CL. ii. 370 ; false pretence of, CL. ii. 438 ; unlicensed, CL. i. 957, note. Auction Pool on horse-race, is lottery, SO. 955. Audience (see Disturbing Meetings) at theatre, rights of, CL. ii. 308, note, 309, and see Theatre, DF. 302. Auditor. See County Auditor. Authority, Authorities (see License, One in Authority) in the criminal law,/u// exposition, CL. i. 69-98, and see 30-42 ; precedents considered as, DF. 4 ; on statutory interpretation, SO. 104 ; how construe statute granting an, SC. 119; allegation and proof of want of, SO, 1042-1044, 1051, 1088. " Authorized by La-w," lottery, mean- ing, SO. 205. Autrefois Acquit (see Jeopardy) is plea in bar, CP. i. 742; form of, DF. 1042-1044; pleading over after, CF. i. 753-755 ; full exposition of plea, CF. i. 808-817. Autrefois Attaint, doctrine and plea of, OL. i. 1070 ; CP. i. 742, 806. Autrefois Convict. See Jeopaedy. Available, every right to be made, OF. i. 113-116. Averment. See Allegation, Indict- ment, Needless Averments, Nega- tive AVEEMEKTS, OeDEE, SUBSTAN- TIAL Averments. ATward (see Refeeees) disobeying, a contempt, OL. ii. 256. " ATivay," whether necessary in indictment for larceny, DF. 582, note. Awning, spreading, keeping spread, SO. 208, note. 717 BAN GENERAL INDEX TO THE SEBIE3. BAN Ase, assault with, dangerous weapon, OF. ii. 64. Aromatic Truths, force of, in the law, CL, i. 140, note. Bad Case (see Attorney), how to man- age a, DF. 40. Bad Character, proving defendant's, OP. i. 1112-1119. Bad Counts (see Counts), qaashing, CP. i. 764 ; as affecting sentence, CP. i. 1327, note, 1332, 1333. Bad Disposition, allegation of, unneces- sary, DF. 46. And see CP, ii. 609-630. Bad English (see Clerical Errors, English, Grammar, Inaccuracy, Or- thographt, punctuation, purity, Spelling, Ungkammatical) in indict- ment, CP, i. 354. Bail (see Affidavit, Appearance Bond, Insufficient Bail, Recognizance, Sureties), full exposition, CP. i. 247- 264 n ; may take the person bailed, CL, ii. 37, CP, i. 249 ; not on Sunday, CP. i. 207, note ; pending proceedings before magistrate, CP. i. 234 a ; during trial, CP. i. 952 a ; accomplice not admitted to, CP, i. 1168; giving straw, evidence of guilt, CP, i. 1250; rearrest after insuf- ficient, CP, i. 1386 ; habeas corpus for, CP, i. 1407; indictments for offences as to, DF, 688. Bail-bond. See Appearance Bond, Bail, Recognizance, &c. Bailee, Bailees (see Embezzlement), larcenies bj,futt exposition, SO, 417-424, DP, 610. Bailiff (see Arrest, Homicide, Offi- cer, &c.), arrest by, CP, i. 157 ; in grand- jury room, CP, i. 861. Bailment, defined, SC, 423, CL, ii. 857 ; averring the, SC, 422. "Baiting," meaning, SC, 1109. Baker, Bakers, by-law as to licensing, SC, 25 ; baking on Sunday, CL. ii. 958. Ballot (see Election Offences), whence the right of, SC, 807-812 ; neglecting to put, into box, SO, 816 ; what, in election laws, SO, 826, note. Bank, alleging existence, &c. of, CP, ii. 454, 469. Bank-bill, Bank-bills (see Bank-note, Fictitious Bank-note, Forgerv, Possession), identical in meaning with bank-note, CP, ii. 450, SC. 337 ; meaning, SO. 337 ; procedure for forging and utter- ing forged, CP. ii. 445-460 ; same for possessing forged, with intent, CP. ii. 461-469; having fictitious, CP. i. 523; how describe, in indictment for larceny, CP. ii. 732, 736, DF. 602, 603 ; in forgery, CP. ii. 409 ; proof of, being forged, CP. ii. 459 a ; whether " goods or chattels," SO. 209, note; "alter," SC. 217; statutory forgery and larceny of, SC. 325 ; when, " promissory note," SC. 326 ; not "money," SC. 346. Bank-check is an " order," SC. 328, not " money," 346 ; how indictment for for- gery of,' DF. 469. Bank not £i:£isting, what is, SC. 223. Bank-note (see Any Bank-note, Bank- bill, Fictitious Banknote), syno- nyme for bank-bill, see Bank-rill; meaning, CL. ii. 785, SC. 337, 346, note; not conforming to statute, OL. ii. 411 ; of broken bank, whether false pre- tence, CL. ii. 417 ; whether subject of larceny, CL. i. 578, SO. 344; what a forgery of, CL. ii. 574; word, in indict- ment for larceny, CP. ii. 732 ; of another State, SO. 205 ; plural includes singular, SO. 213 ; cut in halves and sent by mail, SC. 214, note, 345 ; are " valuable things," but not " lawful money," SC. 346, note ; whether " money," SC. 874, "goods and chattels," 344, 345 ; whether included in allegation of " money," DF. 423, note ; indictment for forgery of, DF. 465, for uttering, 466, for possessing, with intent, 467, for larceny of, 602, 603. Bank Officer as witness in forgery, OP. ii. 431. Banker, Bankers, against, for embezzle- ment, CP. ii. 338-342, and see Embez- zlement. Banker's Draft, servant embezzling, CL. ii. 321. Banking G-ames, in classification of gaming, SC. 866. Bankrupt, perjury by, in swearing to schedule, CL. i. 298, see Perjury. Bankrupt Act, proving exact time of repeal of, SO. 29 ; effect, SO, 183. Bankrupt's Letters, detaining, SC. 823. Bankruptcy, Bankruptcy and In- solvency (see Act of Bankruptcy, Schedule ),/mK exposition, DF. 230-239 ; in what county indict, OP. i. 53 ; discharge in, as to debt due State, SO. 103 ; false swearing in, SC. 129 ; cases of fraudulent, 718 BAT GENEEAL INDEX TO THE SERIES. BEI collected, OL. i. 572 a, note; fine not provable in, CP. i. 1304 ; other points, OL. i. 298,.S0. 29, 183, 823. Barbarous Countries, offences com- mitted in, OL, i. 122, 123. Barber shaving customers on Sunday, OL. ii. 958, and see Lord's Dat. "Barge" not include brig or steam-tug, SO, 246 a, note. "Barilla," in larceny, CP. ii. 701 ; and see OL, ii. 868. Barn (see Dwelling-house), when par- cel of dwelling-house, SO. 278, 286, OL. ii. 104, and see OP. i. 209 ; when burning of, arson, SO. 289 ; when, may be broken into, SO. 290; is an outhouse, SO. 291, note ; whether question of, is for jury, OP. ii. 52. Barratry (see Champerty, Common Barrator, Nuisance), fall exposition, OL.ii. 63-69, OP. ii. 98-103, DP. 778, 779 ; indictable, OL. i. 541 ; as disqualifying witness, OL. i. 974, 975 ; joinder, CP. i. 470 ; minuteness of allegation, CP. i. 494, 530 ; conclusion of indictment, OP. ii. 101, 863. "Barter," "Bartering" (see Forgery), meaning, CL. ii. 608, SO. 1014. "Base and Adulterated," in indict- ment for counterfeiting, OP. ii. 259. Bastard, name of, CP. i. 686, ii. .'507, 508 ; concealing death of, CP. i. 465, see Con- cealment OF Birth ; statutes for main- taining, construed, SO. 159, note ; rela- tions of, to parents, SO. 633 ; in incest, SO. 727. Bastard Child, conspiracy to charge one with being father of, CL. ii. 2 1 5, note, 217, CP. ii. 241 ; indictment for murder of, DP. 520, note. Bastardy (see Judicial Order, Puta- tive Father), /«// exposition, SO. 691- 694, DP. 155, 159 ; entertaining one guilty of, not punishable, OL. i. 706 ; "single woman" in statute, includes married, SO. 190 a; conviction of, on charge of seduction, SO. 643 ; evidence of, in concealment of birth, SO. 780. Bat, whether " offensive weapon," SO. 321. Bathing in open sea, when indictable, OL. i. 1131. Battery (see Assault, &c., under which titles most of the matter properly belong- ing under this may be found), full expo- sition, OL. ii. 69 a-72 e ; defined, and indictable, CL. i. 265, 548, ii. 70; civil suit for, CL. i. 265 ; on numbers, convic- tion for one, CL. i. 792, OP, i. 437 ; in defence of property, OL. i. 861, 862, of person, 867 ; includes assault, CL. ii. 56, 71; justified by assault, CL. ii. 41 ; al- leging, in homicide, CP. ii. 512; in assault with intent, OP. ii. 658. Battle. See Enemies. Bawdy-house (see Disorderly House, Letting House, Nuisance), full expo- sition, OL. i. 1083-1096, CP. ii.'l04-122, DP. 780-787 ; keeper indictable, CL. i. 500, 734 ; procurer, CL, i. 686 ; wife, CL. i. 361 ; not disqualify witness, CL, i. 974 ; allegation for keeping, CP. ii. 106; by- law punishing, SO. 21 ; a tent, SO. 279; visiting, in proof of adultery, SO. 679. Bay, Bays (see Arms of the Sea, Ter- ritorial Limits), jurisdiction over, CL, i. 105, 176; when not "high seas," SO. 304 ; when, within county limits, OL. i. 146. " Beach," meaning, SO. 305, note. "Bear Arms" (see Arms, Carrying Weapons), "carry" and" bear," SO. 787 ; words, in constitution, SO. 792, 793. Bears, not subjects of larceny, OL. ii. 773. "Beast" (see Animals, Cattle, Mali- cious Mischief), meaning, OL. ii. 986, SO. 440-442 ; word covering it in indict- ment, SO. 440 ; concerning estray, OL. ii. 876, and see Estray. "Beat," meaning, CP. i. 356, SO. 216; in indictment for malicious mischief, SO. 447; for cruelty to animals, SO. 1115; for assault and battery, DF. 206. Beating (see Cruel Beating), murder by, CL. ii. 690, DF. 520. Bed and Board, second marriage after divorce from, SO. 229, 583. "Beer," meaning, SO. 1007, 1008. Bees. See Honey Bees. "Before," in statute, construed, SO. 110. Before and After, evidence of acts, in adultery, &c., SO. 680-684, DF, 161. " Before Trial," meaning, SO. 347 a, note. Begging, offence of, DP, 1004; false pre- tence in, OL. ii. 467. " Begin to Destroy," meaning, SO. 223. "Being," meaning and effect, CP, i. 410, 557. Being Armed, committing robbery, DF. 935. Being Drunk. See Drunk. "Being Found," in larceny indictment, DF. 582, note, 588, note. 719 BET GENERAL INDEX TO THE SERIES. BIN Being Present, offence of, at prize-fight, DF. 901. Belief (see Opinion), allegation of, CP. i. 325; when negative, in perjury, CP. ii. 920, DF. 873, note. Believed Genuine, allegation, in utter- ing forgery, OP. ii. 460. Belligerent, Belligerents (see Ene- mies), act, governmental command as justifying, CL, i. 153. Bell-punch Law, indictment under, DF. 658. Bench Warrant (see Warrant), arrest oil, CP. i. 186, note, 263 a, 869 a. Bene&cial and Reasonable, by-law must be, SC. 22, 2.i, 26. BeneHcially, statutes which operate, con- strued liberally, SC. 192. Benefit, confessions made expecting, CP. i. 1223, 1235. Benefit of Accused, statutory provis- ions for, how construed, SO. 227. Benefit of Clergy (see Clergy), what, and who entitled to, CL. i. 936-938 ; plea of, CP. i. 737 ; form of record, DP. 1071. See also CL. i. 1021. Benevolent Society doing business on Lord's day, CL. ii. 954, note. Best Evidence, doctrine of, CP.i. 1080- 1082. Bestiality. See Sodomy. Bet, Betting (see Klection Offences, Gaming, Losing, Lotteries, Wager, Winning), what, and distinguished from wager ami game, SO. 858, 870-872, 937 ; various views of, SC. 870-875 ; recover- ing, in civil suit, SO. 933 ; procurer of, held as doer, CL. i. 686 ; forfeiting, CL. i. 821 ; taking by, when larceny, CL. ii. 813 ; statutory offence of, SO. 852, 854 ; distinguishing gaming, SC. 854 ; as con- stituting gaming or not, SO. 862, 872 ; unlawful sorts, SO. 872-875 ; with an- other's money, SO. 881 ; county of, SC. 924. Betting on Election, /«Z? exposition, SC. 933-949, DF. 395-398 ; *' in this State," meaning, SC. 205 ; under statutes, SO. 852, 934-936 ; whether gaming, SO. 872 ; indictment, as to day named, CP. i. 404, note. Betting on Games, full exposition, SC. 918-926, DF. 506 ; indictable under stat- utes, SO. 852, 854. Betting on Horse-race (see Horse- bacing), indictable under statutes, SO. 720 852 ; how the indictment, SO. 929 ; far- ther, SC. 872. Betting Money, what, SO. 874. Betting on Shooting-match, SO. 930. Between Two Days, alleging ofEence as, CP. i. 396. Beyond Reasonable Doubt. See Reasonable Dohbt. " Beyond Seas," meaning, SC. 261 h, 304, note; in limitations statute, SC. 261 h; in polygamy statute, SO. 595; the alle- gation, OP. i". 638. Bias, as disqualification of juror, OP. i. 901, 903-906. Bigamy (see Polygamy), term, com- pared with polygamy, SO. 577. Bill (see Legislative Kecords), how enacted, SO. 44 ; presenting, for execu- tive signature, SC. 109 ; repeal before enactment complete, SO. 151. Bill of Attainder, what, and forbidden by constitution, CP. i. 86. Bill in Equity, pending or not, as to con- tempt of court, CL. ii. 262. Bill of Exceptions. See Exceptions. Bill of Exchange (see Bills and Notes,- Forgery, Larceny), mean- ing, CL. ii. 562, 785, SO. 328, 338 ; not " money," SC. 346 ; how statutes against forgery and larceny of, interpreted, SC. 325, 326 ; procedure for forging, &c., CP, ii. 470-472 ; how indictment for forging and littering, DF. 468, for larceny of, 604. "Bill Obligatory," meaning, CL. ii. 566, and see 551. Bill of Particulars, /u// exposition, CP. i. 643-646 ; in barratry, CP. ii. 100, com- mon scold, 201, conspiracy, 209, nui- sance, 873. Bill of Sale, false swearing to, for regis- try, OL. ii. 1014. Billiard-room (see Gaming-house), whether indictable, CL. i. 1136. Billiard-table (see Gaming), forbidden by statute, SC. 852 ; in connection with liquor selling, SO. 878, note, DF. 821. Bills and Notes (see Bill of Ex- change), meaning of " month " in, SC. 105, note; how the months computed, SC. 110 a, note. Binding Over (see Bond for the Peace, Commitment, Complaint, Courts, Examining Magistrate, Holding for Trial, Justice of Peace, Magistrate, Peace), /«// ex- position, CP. i. 225-239 a. BOD GENERAL INDEX TO THE SERIES. BOW Birds, See Singing Birds. Birth, See Concealment of Birth. " Bishop of Norwich," in statute, mean- ing all bishops, SO, 190 6, note. Biting, injury by, whether a wound, SO, 314. Black Act, conceining the, SO, 431,434, OP, i. 468. "Black and White Horses," mean ing, SO, 94. Blacks and Whites, SeeMiscEOENA TioN, Negro, Negroes and Whites White Person. Blandishments, in seduction, SO, 640. Blank, Blanks (see Printed Blanks) not necessary to lottery, SO, 955 ; filling, in forgery, OL. ii 580, 581. "Blasphemously," in indictment for libel, DF, 619, note. Blasphemy (see Libel), disturbing peace by, OP, i. 557. Blasphemy and Profaneness,/uH ex- position, OL, ii. 73-84, OP, ii. 123-125, DP, 240-244 ; punishable, OL, i. 498, ii. 946. And see OP, i. 557. " Blind Hazard Table,'' punishable by statute, SO, 864. Blind Tiger, under " like or similar kind," SO, 922. Blinds, forcing open, a breaking, SO, 312. Blood Stains in evidence, CP, ii. 631. Blow, aimed at one, taking effect on another, OL, ii. 72 a ; how allege the, in homicide, OP, ii. 516. Bludgeon, an "offensive weapon," SO, 321, not " arms," 793. Board of Health, disobeying order of, DF. 512. Boarding-house, not an inn, SO, 297. Boars. See Wild Boars. Boat may be bawdy-house, OL. i. 1085, SO, 279. Bodies. See Dead Bodies, Sepulture. Bodily Condition and Sufferings, declarations of, in evidence, CP, i. 1111, ii. 626. Bodily Harm, See Grievous Bodily Hari:. Body, proceeding against, to collect fine, OP. i. 1301, 1302, costs, 1321 ; to enforce abatement of nuisance, OP, ii. 871. Body Corporate, See Corporations. Body of Indictment, common allega- tions in the, DF, 73-90. Body Snatching, See Burial, Sep- ulture. 46 Body and Soul, law consists of, SO, 93, note. " Bohea Tea," meaning, SO. 99. Boiling Water is " destructive matter," SO. 324. Bond, Bonds (see Appearance Bond, Forgery, Larceny, JIkcognizance), whether subject of larceny, OL. i. 578, ii. 769, 770 ; legislative appropriation to pay, SO. 156a; as included in "goods or chattels," SO, 209, note; not following statutory form, SO, 255, OP. i. 264 a ; statutes to punish forgery and larceny of, SO, 325, 326 ; by licensee in liquor sell- ing, SO, 1000 ; separating condition from penalty, OL. ii. 147, note, see DF, 473 ; officer not giving, OL, i. 464, note, 468 a. Bond for the Peace (see Binding Over, Peace), as part of sentence, OL, i. 945, ii. 55. Bond of Record (see Appearance Bond, Recognizance), as substitute for recognizance, CP. i. 264. "Book of Accounts," meaning, CL. ii. 785, SO. 340. Books (see Altering Books, Conceal- ing Books, Legal Treatises), read- ing, to jury, OP. i. 1180; jury taking, to jury room, OP. i. 982 a, ii. 686 ; officer bringing, CP, i. 998 a; experts giving evidence from, CP, ii. 686 ; what, are " materials for lottery," SO, 209. Books of Criminal Law (see Reports, TIreIlTIS^s), full exposition, OL, i. 70-90. Books of Forms, concerning, DF. 2-8, 12. Books of Medical Jurisprudence, consulting, in abortion cases, DF, 145. Books of Record, See Record. Bookseller, liability of, for libel sold in shop, CL, i. 219, 221. Booth, in fair or market, not " dwelling- house," SO, 279 ; liquor selling in, CP, i. 373. Boston Harbor within county lines, OL, i. 147. " Bottle," in indictment for larceny, DF, 592, note. Bounds of Land, indictment for re- moving, DF, 724. " Bowie-knife," carrying, SO, 786 ; "like," SO, 790. Bo^wling-alley (see Gaming-house), indictable under statutes, SG, 852, CL, ii. 951, note ; permitting playing at, on 721 BRI GENERAL INDEX TO THE SEEIES. BUR Lord's day, DP. 670; nuisance of, DF. 807, 808, CL. i. 1135, note, 1136. Boses, officer breaking, OP. i. 208. "Brand" of Animals (see Animals), altering, &c., SO. 454-461, see Altering Makk ; of estray, SO. 464 ; in proof of ownership, SO. 428. Branding another's cattle unlawfully, DP. 165. Bra-wler. See Common Bkawlek. Breach. See Pkison Breach. Breach of Duty, allege, in disjunctive, OP. i. 591 ; dtfiued by statute, remedy for, SO. 138. Breach of Neutrality. See Nedtkal- ITT Laws. Breach of Peace (see Bonds fok the Peace, Peace, Riot), what is, OP. i. 207 ; houses for, nuisance, SO. 1064, note, 1068, and see OL. i. 1119-1121. "Breach of the Peace," meaning, SO. 198. Breach of Prison. See Prison Breach. Breach of Privilege, CL. ii. 247-249. Breach of Quarantine. See Quaran- tine. Bread (see Noxious and Unwholesome Food), by-law regulating weight of, SO. 25 ; false -pretence as to weight of, CL. ii. 475 ; unfit for food, indictment for sell- ing, DF, 763, 764. Breaking, in burglary, &c., defined, SO. 290, 312, 313, and see Burglary; in prison breach, CL. ii. 1070-1075 et seq. Breaking in Daytime, how the allega- tions for, DF. 255. Breaking Doors to make arrest, OP. i. 194 et seq. Breaking and Entering, in burglary, allegation and proof of, OP. ii. 140, 141 ; for larceny with, how indictment, DP. 586. Breaking Fences, indictment for ma- liciously, DF. 723. Breaking House in daytime, with in- tent, how resist, OL. i. 853, note. Breaking Prison (see Prison Breach), by prisoner, DF. 892. Breakings (see Burglary), various criminal, OP. ii. 128-153. Brevity in indictment, and how pro- moted, DF. 10-24, 38. Brewery. See Nuisance, Offensive Trades. Bribery (see Election Offences, Wit- ness), /u// exposition, OL. ii. 85-89, OP. ii. 722 126, 127, DF. 245-250; it, and offer, in- dictable, OL. i 246, 468, 471, 767; of voter, at municipal election, CL, i. 246 ; whether, disqualifies to be witness, CL. i. 974, 975 ; locality, OP. i. 61 ; of witness, evidencing guilt, OP. i. 1251 ; alleging in attempted, sum offered, OP. ii. 75 ; in respect of election, SO. 803, 818, 843. Bridge (see Public Bridges, Way), power of Congress over, CL. i. 174, 175 ; how describe, in alleg.'ition, CP. ii. 1045 ; when, a nuisance, CL. i. 1081, note, ii. 1272, note; meaning of word, SO. 301, OL. ii. 1269. Bridge Company, repealing part of charter of, SO, 151, note. Brief Forms. See Statutory Forms. Brig not included in "when'y," "lighter," &c., SO, 246 a, note. British Statute in force here, how con- clude indictment on, OP. i. 604. Brother, causing death of, by neglect, OL. ii. 660. " Bruise " (see Wound), word, in indict- ment for assault and battery, DF. 206, note. Bufialo not " cattle," SO. 442, OL. ii. 986, note. "Buggery" (see Sodomy), in indict- ment for sodomy, CP. ii. 1016, DF. 963, note. " Build." Sec Erect and Build. Building (see Lead from Building, Public Building, Uninhabited Dwelling, Wooden Buildings), de- fined, SO, 292 ; statutes restricting erec- tion, SO. 208, 211 ; keeping a, for illegal liquor selling, SO, 1068-1070; word, in indictment for compound larceny, CP. ii. 779 ; indictment for malicious mischief to, DP. 727, 728 ; tearing copper from, CL. ii. 992. " Bullion," meaning, SC. 346, note. Burden of Proof (see Presumption, Proof), /«// exposition, CP. i. 1048-1051 ; in former jeopardy, CP. i. 816; in alibi, OP. i. 1061, 1066 ; statutes changing the, OP. i 1090; on defendant, preponderance of evidence, OP. i. 1095 ; presumption of innocence on, CP. i. 1104; in homicide, CP. ii. 598-608 ; as to insanity, CP. ii. 669-675 ; in polygamy, SC. 607, abor- tion, 762. "Burglariously," in indictment for bur- glary, DF, 254, note. BUS GENERAL INDEX TO THE SEEIES. CAP Burglai-y and like Breakings (see Bkeaking, Dwelung-house, House, Intent, Robbery), fuU erposition, CL. ii. 90-120, OP. ii. 128-153, DP. 251-261 ; what, and indictable, CL. i. 207, 342, 559 ; nature of offence, CL. i. 577 ; two intents, CL. i. 207, 342 ; consent to, and plans to entrap, CL. i. 262 ; species of attempt, intended felony, CL. i. 437 ; accessory before in, CL. i. 676 ; intending misde- meanor, committing felony, CL. i. 736 ; felony intended possible, CL. i. 757 ; lar- ceny and, two crimes or one, CL. i. 1062- 1064; robbery and, CL. i. 1063-1065 ; al- lege aggravations enhancing punishment, CP. i. 83 ; joining counts for larceny, OP. i. 423 ; alleging larceny in count for, OP. i. 439, 449 ; variance as to intent, CP. i. 488 e, 521, note, ii. 146, 147; description of place of, OP. i. 573, SO. 278 ; "dwell- ing-house," not house, OP. i. 573, ii. 135, SO. 277 ; possession of things stolen as evidence, CP. ii. 152, 747 ; " enter with- out breaking," &c., in, SO. 221 ; the breaking and entering in different forms of statutory, SO. 234 ; in shop, &c., SO. 221, 233, 234, 240 ; in attempted felony, SO. 276 ; various views as to place, SO. 280, 281 ; what the breaking in, SO. 290, 312 ; form for alleging night in, DP. 87 ; how indictment for conspiracy to com- mit, DP. 288. Burial (see Corpse, Dead Bodies, Sep- ulture), indictable to refuse, CL. i. 506, ii. 1188, note ; conspiracy to prevent, OL. ii. 228. Burial-ground, statute forbidding street through, SO. 156. "Burn" (see Set Fire to), meaning, SO. 310, 311 ; in indictment for arson, OP. i. 613, ii. 46, 47, DP. 179, note, 182, note. Burning (see Arson, &c.), when procurer of, held as doer, CL. i. 686 ; indictment for murder by, DP. 524, malicious mis- chief by, 703. Burning Dead Body, DP. 956, note. Burning Oinrn House to burn neigh- bor's; DP, 192. Burnings (see Arson), various, OP, ii. 33-53. Business, full exposition of various statu- tory regulations of, SO. 1089-1098; mean- ing, SO. 1016 ; by-law regulating, SO. 20, 22; conspiracy to injure one in his, DP. 301-308. Business of Selling (see Unlicensed Business), conducting unlawful, SO. 1035, DP, 656. Buying Counterfeits, statute against, construed, SO. 225. Buying and Selling Pretended Ti- tles. See Pretended Titles. Buying ^Wife. See Wife. "By," as substitute for "to," in indict- ment, OP. i. 546, note. "By Color of OfBce," in indictment for extortion, CP. ii. 357, 358. "By Force" (see Forcibly), in indict- ment for rape, DP. 906. By-la-w (see Municipal By-law), how complaint or indictment on, OP. i. 602, note, 609, SO. 403-408, DP. 133-136 ; ac- tion on, CP. i. 892 ; against Sabbath- breaking, OL. ii. 951, note ; against bawdy-house, CL. i. 1089. By-stander, to aid in arrest, CP. i. 185, 186. Cable across river as guide for ferry-boat, OL. ii. 1272. Calendar Month, SO. 105, 110 a. Calf is " cattle," SO. 426. Camp Meeting, what a disturbance of, SO. 211 ; how the indictment, DP. 372. Candidate for OfBce, libel on, OL. ii. 937. Candles, making, as nuisance, CL. i. 1142. Cannon, homicide by bursting of, CL. ii. 665. Cannon-shot, as to territorial jurisdic- tion on ocean, OL. i. 104. Cantharides, administering, CL. i. 491, note, and see Administer, Abortion. Cap and Gown, as false pretence, CL. ii. 430. Capacity for Crime. See Coverture, Infancy, Insanity. Capias pro Fine, to enforce payment of fine, how, and the practice, OP. i. 275, note, 1302. Capital Cases, care of jury in, OP. i. 995 ; the sentence, OP. i. 1311. Capital Execution (see Execution op Sentence, Sentence), at time different from ordered, SO. 255. Capital Punishment (see Death, Hanging), scruples as to, disqualifying juror, OP. i. 918; sentence, CP, i. 1311 ; execution, CP. i. 1336 ; statutes inflict- ing, how construed, SC. 189 6. 723 CAR GENERAL INDEZ TO THE SERIES. CAT Captain of Vessel, confession of one of crew to, OP. i. 1233. For vari- ous offences by, see the several titles of offences, and see Master Maei- NER. Caption of Indictment,. /itZ/ exposition, OP. i. 653-668; amendments of, CP. i. 708 ; quashing, OP, i. 765 ; form, DF. 53- 56, as appearing in record, 1070; setting out the, on charge of second offence, DF. 94. See also Commencement. Captures, wrongful, innocent through mistake of fact, OL. L 306, 307, and see Mistake op Tact. Carcase of wild animal, subject of larceny, OL, ii. 775. Cards (see Gaming), playing falsely with, CL. ii. 206 ; as " gross misdemeanor," OLi i. 945; as "gambling device," SO. 867 ; " device or substitute for," SO. 869 ; in " outhouse where people resort," SO, 291 ; dealing the, SO, 881 ; indictment for playing, proof of betting, SO. 896, note; how indictment for playing, for money, DF, 490, 491. Carelessness (see Accident, Evil In- tent, Intent, Mistake op Fact, Neg- lect), as an ingredient in crime, full exposition, Gil. i. 3\3-322; death created by, CL. i. 217, ii. 692, 693 ; not sufficient intent in larceny, OL. ii. 840 ; in polyg- amy and adultery, SO. 596 a, 664 ; as to age of minor, 877, 1022. Caret, in indictment, CP. i. 338. Carnal Abuse of Female Child (see Abuse, Rape, &c.,Veneiieal Disease), full exposition, SO. 483^99, DF. 903-914, and see, OL, ii. 1118, 1133, CP. ii. 960; the attempt, OL. i. 37, note, 762, 765, ii. 1136; rejecting " of " in construction of statute, SO. 215. Carnal Knowledge (see Adultekt, Rape, &c. ), what, in abuse of children, SO. 488, 489 ; allegation and proof of, in adultery, SO. 674, 677-689 ; allegation of, in rape, OP. ii. 958, sodomy, 1015 ; words, in indictment for adultery, fornication, &c., DP. 149, note. Carnal Ravishment. See Cabnal Abuse, Rape. " Carnally Know," in indictment for carnal abuse, SO. 487 ; for rape, OP. Ii. 958, DF. 905. Carriage, Carriages (see Driving AGAINST CaBKIAGE, MUNICIPAL Bt- LAWs), by-laws ordaining rules as to, SO. 724 20 ; vigilance required from drivers of, OL, i. 2 1 7, note. Carriage-house, part of dwelling-house, SO. 286. Carrier, Carriers. See Common Cae- BIEB. " Carries," meaning, in carrying weapons, 8C, 787 ; how as to indictment, SO. 795. " Carry Away" (see Asportation), in indictment for larceny, OP, ii. 698, DF. 582, note. Carrying Gun, how indictment for, CP. i. 588. Carrying Weapons (see Cabbies, Pis- tol, Weapon), yi/K exposition, SO. 781- 801, DF, 262-268 ; from motives of curi- osity, SO. 238. Cars, running of, on Lord's day, CL, ii. 965 ; offence of maliciously obstructing, not disqualify witness, CL. i. 974, note. Cart Wheel, not a " tool," SO. 319. Case, Cases. See Bad Case, Decis- ions. Case Reserved, revision of cause by, CP. i. 1266. Cashier, overpaying deposit, OL. ii. 355 ; embezzling, CP. ii. 329, note. " Cast Away," meaning, SO. 224. Casting Stones, homicide by, CL. ii. 620. Casting away Vessel (see Desteot- ING Vessel), indictment for, DF. 721. " Castle " (see Defence, Dwelling- house), meaning, SO. 277, 290. And see OL, i. 858, 859, ii. 1208, CP. i. 195, 196, 249, note. Castration in mayhem, CL. ii. 1001. Casus Omissus, doctrine of, SO. 146. Catheter, allegation of abortion with, DP. 142. Cats, not subjects of larceny, OL. ii. 773. Cattle (see Animals, Branding, Driv- ing, EsTRAYS, Impounding, Unlaw- ful Heeding), meaning, OL. ii. 986, SO. 212 ; word, too general in allegation, CP. i. 568-570, 619 ; by what word desig- nate, in larceny of, SO. 426, malicious mischief to, 440-442 ; otherwise in ma- licious mischief to, CP. i. 570, 619 ; un- lawful driving of, SO. 452, 453 ; fraudu- lent marking of, SO. 454-461 ; violations of estray laws, SO. 462-464 ; converting estray, CL. ii. 882, note; indictments for malicious mischief in killing, DF. 702, 709-714; poisoning, OL. ii. 985 ; import- ing infected, OL. i. 492, note ; owner of CHA GENERAL INDEX TO THE SERIES. CHA land killing trespassing, OL. il. 990; liberating impounded, CL, ii. 1013, DP 173-175. Cattle at Large, /uU exposition, SO. 1136 1139, DF, 171-176. Cause Pending, publications about, OL, ii. 259. " Cause and Procure " in allegation, SO. 758, DF. 139, note, 621, note. Causes. See Combined Causes. " Causing False Entry " in registry of births, SO. 210. Caveat Emptor, maxim of, OL. i. 1 1 . Cemetery. See Bdkial-gkound, Sep- ULTUKE. Certainty in Pleading explained, OP. i. 32.3-328, 506-516 a; in description of goods, &c., OP. i. 575, 576 ; in plea, OP. i. 745; in sentence, OP. i. 1297. Certiiioate, not a license, SO. 1000; "val- uable security," SO. 340 ; forgery of, OL. ii. 531, 534. Certificate of Disagreement from Circuit Court to Supreme, OP, i. 1365. Certificate of Marriage, neglect to file, 80.222; proof by, SO. 610. Certifying Recognizance, doctrine of, OP, i. 264 e. Certiorari (see Writ op Cektiokaki), bail on return of, OP, i. 254. Challenge to Duel (see Ditellikg, Fight), punishable, OL. i. 540, ii. 314; in foreign state, OL, i. 143; procedure, OP. ii. 304 et seq. ; provoking, OP, ii. 310 ; indictment, DF, 378, 379. Challenge of Jurors (see Peremptokt Challenge, Polls), of grand jurors, OP. i. 875-§8I ; petit, OP, i. 932 n-945, 947, 949; peremptory, OP. i. 935-945; to array and polls distinguished, OP. i. 876 et seq. ; for principal cause, to the favor, OP. i. 903-905, &c. ; above twenty jurors, CP. i. 941 ; at what stage of cause, OP, i. 945; on joint trials, CP. i. 1027- 1030. Chambers (see Part of House) in col- lege may be dwelling-house, SO. 279. Champagne Wine is " liquor," SO, 1010. Champerty (see Common Champer- tor) not committed by judicial sale, SO, 232. Champerty and Maintenance (see Barratry, Maintenance), full exposi- tion, OL, ii. 121-140, CP, ii. 154-156, DF, 269, 270 ; what, and indictable, OL, i. 541 ; under mistake of fact, OL. i. 307 ; punishment of, OL. i. 942, note. Chance (see Game op Chance), verdict decided by, illeg.al, CP, i. 998 a ; evil ele- ment in gaming, SO, 854, 862 ; chief element in lottery, SO, 952, 953, 956. Chance Medley, what is, OL, ii. 621. Chance Values, dealing in, is lottery, SO. 956. Chancery, proof of oath in, OP. ii. 933 c. Chandlery. See Ofpensive Trades. Change, cheat in making, OL. ii. 432 a, 435 ; refusing to deliver, CL, ii. 812 ; lar- ceny of, CL, ii. 817; making, for seller of liquor, SO, 1029. Change of Venue. See Venue. Changed Reason modifying doctrine, OP. i. 367, CL. i. 273-275. Changes in game, effect of, SO. 868. Chapel, larceny from, OP. ii. 777. Chaplciin in Army, false pretence of being, CL, ii. 438. Chaplain of Jail, confession to, CP. i. 1233. Chapter Headings, effect of, in interpre- tation, SO. 46. Character (see PREViotrs Chaste Character), distinguished from repu- tation, CP, i. 1117 ; of defendant, in evi- dence, OP, i. 1112-1119; of defendant testifying as witness, CP. i. 1185 ; as to dying declarations, CP. i. 1209; of de- fendant, in assault and battery, CP. ii. 68, homicide, 628 ; of frequenters of bawdy- house. CP. ii. 112 et seq. ; of deceased, in homicide, CP, ii. 609-616. Charge to Jury hy jadge, full exposition, OP, i. 976-982. " Charged ■with Crime," meaning, SO. 242. Charging Bail, OP. i. 264 /-264 n. Charging the Hundred, old law of, CL. ii. 623. Charity (see Begging), obtaining money in, by false pretences, DF. 429. Charter (see Corporation, Incorpora- tion, Municipal Charter, Private Corporations), how, and legislative power over, SO, 18 ; how interpreted, SO. 25 ; whether, private statute, and prov- ing, SO, 405 ; not repealing general stat- ute, SO, 156 ; repealing, in part, SO, 151, note ; of foreign bank, as to proving, CP, ii. 469. Chaste Woman (see Seduction), se- ducing a, SO, 647-649. 72.5 CHI GENERAL . INDEX TO THE SERIES. CIK Chastisement (see Homicide), by par- ent, CL, i. 880-883, ii. 656 ; by guardian, OL, i. 885 ; by teacher, CL. i. 886 ; by master, CL, i. 887 ; by husband, CL. i. 891, ii. 683 ; to unlawful extent, CL. ii. 38 ; with unlawful weapon, CL. ii. 72 4, 683-685, 690; how indictment for as- sault by excessive, DF. 220. Chastity (see Defence, Previous Chaste Characteb), taking life in defence of, CL. i. 866, 867 ; in robbery, money given to preserve, CL. i. 329, ii. 1164; bad reputation for, in rape, CP. ii. 965 ; evidence as to, in seduction, SC. 648, 649, 652 ; solicitations of, in evi- dence of adultery, SC. 684 ; evidence of bad reputation for, in adultery, SC. 679. Chattel, Chattels (see Goods and Chattels), meaning, SC. 344, 345, CL. ii. 479 ; demanding, with intent to steal, in attempt, CL. i. 752 ; how describe, in allegation, CP. i. 575, and see Larceny, and various other titles. Chattel Real, whether larceny of, CL. ii. 763. Cheats at Common Lavr (see Conspik- act, False Pretences, False Scales, False Token, False Weights, For- gery, Misreading a Writing), full exposition, CL, ii. 141-168, CP. ii. 158-161, DF. 271-277 ; how the indictment for conspiracy to, CP. i. 516, ii. 207-220, 235, DF. 283, 286, 289-291 ; limitation, SO. 260; to defraud the public, CP. ii. 243 ; winning by false dice, SC, 847, DF, 274 ; statutory enlargements of, SO. 450-464. Check on Bank is an ordei-, SC. 328 ; as to, in cheats and false pretence^, CL, ii. 147, 148,421, 474, 478; in forgery, CL. ii. 576, 593 ; in larceny, CL, ii. 823, 836, note. Check of Faro Bank (see Gaming), whether " money," SO, 874. Chesapeake Bay within territorial juris- diction, OL, i. 105. Chickens, poisoning, CL. ii. 985, note. Child, Children (see Abandonment, Abortion, Carnal Abuse, Conceal- ment of Birth, Having Child, Hom- icide, Infancy, Neglects, Parent), abandoning, OL, i. 557, 884; not pro- viding with food, CL. i. 557, 883 ; parent correcting, OL, i. 881 ; exposing to ele- ments, CL, i. 883; may maintain parent in suits, CL. ii. 128 ; when, becomes sub- 726 ject of murder, CL, ii. 632-634 ; killing parent by abuse, CL. ii. 686 ; affection of kidnapped, as evidence, OP. ii. 695 ; mean- ing of word, in concealment of birth, SC. 772 ; how 1 indictment for abandonment of, DF. 218, 219, 753 ; how indictment for neglect to provide for, DF. 751, 752. Child Murder. See Concealment of Birth, Homicide. Chimney (see Breaking, Burglary), entering, CL. ii. 95, SO. 312; part of dwelling-house, SC. 281. China, our jurisdiction in, CL. i. 123. Chitty, views of, as to brevity, DF. 12; volume four of Criminal Law by, DF. 12, note. Chloroform (see Rape), using, in rape, CL. ii. 1 126 ; inebriety from, not drunken- ness, SC. 972. Choice of Proceedings, views of, OP. i. 28-44. Choking, how indictment for murder by, DF. 520. Cholera, filthy house in time of, CL. i. 490. Chose in Action, what, CL. i. 578; whether " personal goods," SC. 209 ; whether "goods and chattels," SO. 344, 345 ; mortgage deed, CP. ii. 147 ; whether subject of lai'ccny, OL. i. 578, ii. 768-770, 785, CP. i. 595 ; how indictment for ob- taining, by false pretences, DF. 427. Christian Name (see Name), concern- ing the, OP, i. 665, note, 678, 683, 684. Christianity (see Blasphemy and Pro- FANENESS, Lord's Day^, Religion), part of our common law, CL. i. 496, 497, ii. 74 ; reviling, CL, ii. 78. Church (see Affray, Burglary, Dis- turbing Meetings, &c.), when a "house," " dwelling-house," &c., SC, 289 ; what it is to erect a, SC. 292, note ; affray in, CL. ii. 5, 47 ; burglary by breaking into, CL. ii. 105 ; larceny from, CP. ii. 777; arson of a, DF. 183. Church Building, allegation of owner- ship of, DF. 183, note, 727, note. Cider (see Liquor Keeping and Sell- ing), not "vinous liquor," SC. 1010; unlicensed sale of, SC, 1038. Circuit Court of United States (see Court), criminal jurisdiction of, CL, i. 199; decisions of, how reversed, CP. i. 136.5. Circumstantial Evidence (see Pre- sumptions), full exposition, OP. i. 107.S- 1079 ; scruples of juror concerning, CP. CIV GENERAL INDEX TO THE SERIES. CLE i. 917 ; in proof of corpus delicti, CP, i. 1057 ; in conspiracy, OP. ii. 227 ; in coun- terfeiting, OP. ii. 254, 268. Citizen Abroad, when, may be called home, OL. i. 512. Citizenship, forfeiture of, as puuishraent, SO. 810. City, a " town," SO. 299 a ; conspiracy to defraud a, CL. ii. 209. City By-la-w. See Bt-laws, Munici- pal By-laws. City Charter. See By-laws, Chakter. City Council, antedated license from, SO. 1001. City Market (see By-laws), by-law pro- viding for a, SO. 20. City Ordinances (see By-laws, Mu- nicipal Bv-LAWs), meaning, SO. 18; how enforced, SO, 404, OP. i. 892. Civil Action, Civil Suit (see Action, Criminal Proceedings, Ncisance, Shit), meaning, CL. i. 247 ; effect of criminal prosecution on, OL. i. 264-266, 1069, SO. 170; ciiminal and, precedence of, OL. i. 267-278 ; compared with crim- inal, as to punishment or damages, OL. i. 955-957 ; analogies from, in criminal, OL. i. 1074-1076 ; criminal and, as to repeal of statute, SO. 156, note, 177 a; when and how, maintainable on statute, SO. 250 a-253 ; when, deemed begun, SO. 261 ; after limitations bar, SO. 265 ; against election officer, SO. 805, for wa- ger, SO. 848, 873, 893; for liquor sold contrary to statute, SO. 1030-1031 a. Civil and Criminal Wrong, same act may bo both, SO. 24. Civil Damage Laws in liquor selling, SO, 1031 u,. Civil Injury, how indictment for homi- cide as a, DF. 531. Civil La^ value of illustrations from, OL. i. 41 ; how construe terms adopted from, SO. 97. " Civil Officer," legislator not a, OL. i. 461. Civil Pleading compared with criminal, OP. i. 320,321. Civil Proceedings may be concurrent with criminal, SG. 170. Civil Process, whether obstructing, in- dictable, OL. i. 467 ; breaking doors in serving, CP. i. 196, 204; in wrong juris- diction, OP. i. 224 6; holding fugitive from justice on, OP. i. 264 a; breaking from, CL. ii. 1072. Civil Remedy (see Civil Action), added to indictment, OL. i. 264-278, SO. 171 ; for assault, CL. ii. 60, 61. Civil Suit. See Civil Action. Civil Trespass (see Cakelessness, Homicide, Tkespass), committed in every larceny, CL. i. 140 ; homicide com- mitted in, OL. ii. 692. Claim of Right, in larceny, the taking under, CL. i. 297, ii. 851 ; in malicious mischief, CL. i. 298, ii. 998, SO. 432 a ; statutes in general words construed with this exception, SO. 232. Clams. See Oysiekb and Clams. Classes of Persons, statutes affecting, public, SO. 42 c. Classes of Statutes. See Written Laws. Clause of Statute (see Alternative Provisions, Saving Clause, Sec- tions), meaning, &c., CP. i. 634, SO. 53-56, 59, 60 ; effect given by construc- tion to every, SO. 82 ; how clauses op- erate together, SO. 126 ; one, giving way in interpretation to another, SO. 82, 126 ; strict and liberal to different clauses, SO. 196. Clean Hands (see Accomplice, Plain- tiffs), in civil suit, OL. i. 11, 256, 267 ; in false pretences, OL, ii. 468, 469. 'Clear Days," meaning, SO. 110. " Clearance," whether receipt, &c., CL. ii. 565. Clergy (see Benefit of Clergy, Clerk in Orders), taking away, statute ap- plied to subsequent, SO. 128 ; all facts to oust, in county, SO. 221 ; taking away, in house-breaking, SO. 240 ; plea of, and judgment, DP. 1071. Clergyman (see Marriage Offences), wrongfully celebrating marriage, SO. 237, DF. 734-737 ; officiating, witness to mar- riage, SO, 610 ; assault on, OL. ii. 46, and see Clerk in Orders. Clerical Errors (see Bad English), not vitiate indictment, OP. i. 357 ; in docket, corrected in record, CP. i. 1343 ; how, in statute, SO. 79, 215, 243 ; not to be pre- sumed, SO. 80. Clerk (see Agent, Embezzlement, Servant), meaning, SO. 271, OL, ii. 331-333 ; committing larceny, OP. ii. 775, 776, OL. ii. 836, note, 856 ; sell- ing liquor under employer's license, SO. 1004 ; further, in liquor selling, SO. 1024, 1049. 727 COH GENERAL INDEX TO THE SERIES. COL Clerk of Court (see Officer), whether, a " public officer," SO. 27 1 a ; command- ing jury to hearken, CP. i. 960; docket by, CP. i. 1342 ; as to record, CP. i 1344, 1345 ; contempt by, CL, ii. 255 ; admin- istering oath, CL. ii. 1020, 1021. Clerk in Orders, beating a, CL. i. 496, ii. 46, and see Clergyman. Client, whether, juror, CP. i. 902 ; place for, in court room, CP. i. 952 ; authority of counsel to waive presence of, CP. i. 270. Clipping (see Coin), diminishing, &c., coin, DP. 335. Clog the Record, indictment should not, OP. i. 528. Close Interpretation. See Intehpre- TATION. Close of Term, effect of, on second jeop- ardy, CL. i. 1031 ; on amendments, OP. i. 1343-1345. " Closed," meaning of, in statutes against keeping " open," SO. 1070 a. Clothes, Clothing, on dead body, lar- ceny of, CL. ii. 780 ; adulterer carrying away wife's, OL. ii. 874 ; larceny by re- ceiving, for washerwoman, OL. ii. 813; larceny by servant intrusted with, CL. ii. 836, note. Club an "offensive weapon," SO. 321. Cocculus Indicus Berries (see Poi- son) poison, CL. i. 758. Cock is "animal," SO. 1104. Cock-fighting (see Game Cock, Gam- ing), how punishable, OL. i. 504, SO. 859; as cruelty to animals, SO. 1111, DF. 361. Cockpit, unlawful game, SO. 859, notB. Co-conspirator (see Accomplice), acts, admissions, and declarations of, CP. i. 1248, ii, 68, 428, 1038. Co-defendants witnesses, when, CP. i. 1020, 1021. Codifications of Laiivs, how interpreted, SO, 98 ; not a remedy for judicial laxity, DF. 14. Coercion of wife by husband, full expo- sition, OL. i. 356-366. For other forms of, see Compulsion, Necessity, &c. Coffee-house not an inn, SO. 297. Coffin, larceny of, CP. ii. 725, 751, note. " Cohabit " in statute, how in allegation, SO. 704. Cohabitation (see Adcltery, Mar- riage, Polygamy, &c.) under polyga- mous marriage, SO. 588, 589, 603, DF. 728 883 ; not essential in polygamy, SO. 612 ; through mistake of fact, SC. 663-665, 718, 729. Cohabiting Lewdly, /«// exposition, SO. 710-725, DF. 148, 152-158. Cohabiting Unlawfully, witnesses, CP. i. 1154. Coin (see Counterfeit Money, Coun- terfeiting), whether "goods and chat- tels," SO. 344 ; having counterfeit, with intent, &c., CP. ii. 265-268, DF. 337-341 ; how describe, in larceny indictment, CP, ii. 703-705, DF. 593, note ; procedure for offences against, CP. ii. 246-271, DF. 330- 343; having tools for counterfeiting the, DF. 342 ; attempts, DF. 343. " Coin by Law made Current," mean- ing, CL. ii. 296. " Coin Resembling," meaning, SO. 225. " Coin at the Time Current," mean- ing, CL. ii. 295. Coining, how indictment for, OP. i. 529, and see Coin ; pos.,essing mould, pat- tern, &c., adapted, SC. 211, and see DF. 342. Coke, works of, in authority, CL. i. 87. Collar for Coining, whether "tool or instrument," SC. 319. Collector (see Commission Merchant, Embezzlement), whether servant, &c., in embezzlement, CL. ii. .'?41, 370; of duty, in extortion, CL. ii. 394. Collector of Customs administering oath by deputy, SO. 129, CL. ii. 1023. Collector of Taxes, whether " officer," SO. 271 a ; extortion by, OL. ii. 392 ; further of, CL. i. 464, note. College. See Chambers, Tale Col- lege. Colonial Legislature, power of, to com- mit for contempt, OL. ii. 247, note. Colonial Statute, effect of, SC. 17 ; con- clusion of indictment on, CP. i. 604. Colonists to uninhabited country take law, CL. i. 193. Color averred must be proved, CP. i. 488 ; of animal, variance, SC. 426, 443, 464. "Color of Office," in indictment for extortion, OP. ii. 358, and see CL. ii. 393. Color of Right, killing under, not statu- tory stealing, SC. 232. Colorable Alterations in Game (see Gaming), effect of, SO. 868. Colorable Gift in larceny, CL. ii. 807. "Coloring" (see Counterfeiting), meaning, &c., CL. ii. 292, DF. 336. COM GENERAL INDEX TO THE SERIES. COM " Colt " is " cattle " and " beast," SO. 442 ; "horse," "mare," OP, i. 620. Combat, killing in, OL. i. 870, 871, ii. 701, 702. Combination (see Accessory, Con- spiracy, Treason, Unlawful Com- bination), to injure individuals, OL. i. 592, 593 ; to commit crime, as to intent, OL. i. 628-642 ; as to measure of guilt, OL. i. 630 ; element of, in conspiracy, OL, ii. 1 73, 1 80 ct seq. ; of numbers, in lieu of physical force, OL. ii. 505, 519; in treason, OL. ii. 1228. Combination Pool is lottery, SO. 955. Combination of Words, effect of, SO. 93, 101, 102. Combinations of Intent (see Intent), faU. exposition, OL. i. 337-345. Combined Act and Intent, OL. i. 204-208 a. Combined Causes, how indictment for homicide by, DP. 535. Combustible and Dangerous Things (see Nuisance), full exposition, OL. i. 1097-1100, DF, 788-790; further points, OL, i. 318, 531, 832, 1080, SO, 20, 21, 1070, note. Command (see Disobeying Command), resulting in death, OL, i. 562 ; to child, servant, wife, OL. i. 355, 357, 884 a, 892. Command in Statute, directory, SO. 255. Commencement of Count, how, OF. i. 429, DF. 64, 115 and note. Commencement of Indictment, what and how, OP. i. 655, 660, 662, 668, DF. 57-64, 115 and note; as appearing in record, DF. 1070. Commencement of Prosecution, what is, SO. 261. Comments on Evidence, by counsel, OP. i. 967-975 b ; by judge, OP. i. 976- 982. Commerce, regulated by general gov- ernment, OL, i. 173-176 ; what State legislation as to, void, SO. 990, 990 b, 1080, 1131, 1135; conspiracies to injure, OL, ii. 231. Commercial Meaning, when, given to words of statute, SO, 99. Commission Merchant, larcenies and embezzlement by, OL, ii. 370, 871. Commissioners. See Report op Com- missioners. " Commit," in statutes against rape and carnal abuse, SO. 493. " Commit Adultery," in indictment for adultery, SO, 674. Commitment (see Binding Over, Con- tempt OP Court, Warrant op Com- mitment), a step in criminal cause, OP. i. 32, 33 ; magistrate's power of, OP, i. 229 ; evidence necessary, OP, i. 233 ; order of, in sentence, OP, i. 1301 ; ex- aminations for, in writing, OP, i. 1258 ; form of, in contempt of court, DF, 320, 321. Committees. See Reports op Com- mittees. "Common Barrator" (see Barratry) in indictment, OP, i. 494, 530, ii. 99, CL, ii. 65. Common Baiwd (see Bawdy-house), whether indictable, OL, i. 1085, DF, 824. Common Bawdy-house. See Bawdy- house. Common Bravyler, in indictment for common scold, OP. ii. 200 ; offence of being, DF. 825, 826, CL. i. 1105. Common Carrier (see Bailees), indict- ment against, for death of passenger, OP, i. 542, DF, 531 ; owner in larceny, OP, ii. 720; larceny by, CL, ii. 833, 834, 836, 858-863, SOi 424. " Common Champertor " insufficient in allegation, OP. i. 530. " Common Cheat " inadequate in alle- gation, OP. ii. 1 60. " Common Conspirator " not suffi- cient in allegation, OP. i. 530. "Common Defamer'' inadequate in allegation, OP. i. 530. " Common Disorderly House," in indictment for keeping, OP. ii. 275. " Common Disturber " not sufficient in allegation, OP. i. 530. Common Drunkard (see Drunken- ness), when, punishable, SO. 968, 970- 972; how the indictment, SO, 977-979, DF, 374 ; selling liquor to, SO, 1021, 1022, 10.34 a, 1048 a, DF, 652. " Common Evil-doer " inadequate in allegation, OP, i. 530. " Common Forestaller " inadequate in indictment, OP, i. 530. Common Gsmibler (see Gaming, Gam- ing-house), statutory offence of being, SO, 879, DF, 494, 495. Common G-aming-house. See Gam- ing-house. Common Labor (see Lord's Day), meaning, CL, ii. 954, 955, 966 ; indict- 729 COM GENERAL INDEX TO THE SERIES. COM ment for performing, on Lord's day, DF. 668, 669. Common Law, in General (see Crimi- nal Law, Law, Militaet and Mar- tial Law), applicable in crime, CL. i. 35-38 ; whether includes ecclesiastical, OL. i. 38 ; authorities in the criminal, CL. i. 40-42, 69-98 ; as to military and martial, Ct, i. 43-46 ; force of, in United States courts, CL. i. 189-203. Common Law, in Statutory Inter- pretation (see Cutting Short, Derogation or. Extending), min- gling in interpretation with statute, Sd 5-8,82, 86, 88, 131-144; by-laws con- form to, SO. 22 ; requires interpretation, SC. 116, 117; statutes construed strictly as against, SC. 119, 155 ; how in connec- tion with, SC. 122-146 ; cutting short effect of statute, SC. 131 ; extending, SC. 134-137 ; statutes abridging and enlarg- ing the, SC. 138, 138 a; talcing qualities and incidents from, SC. 139, 140 ; con- strued otherwise harmoniously with, SC. 141-144 ; not presumed to abrogate the, SC. 142 ; gives remedy for statutory right, SO. 144, 250-250 c; effect of custom on, SC. 150 ; statutes in derogation of, strict- ly construed, SC. 119, 155, 189 a, 193; when repeal, SO. 154, note, 155-162; when blend with, SC. 88, 164; election to indict on, or statute, SO, 164 ; as to conclusion of indictment, SO. 167 ; equal- ity of, with statutes, SC. 189 a. Common-law Jurisdiction. See Com- mon Law, Jurisdiction. Common-law Offence, jurisdiction over, in United States courts, CL. i. 189- 203 ; how proceed on statute afiSrming, SC, 250. Common-law Punishment, when, may be imposed, SO. 166. Common-law Remedy enforcing stat- utory right, SO. 144, 250-250 c. Common-law^ Rights, how statutes in derogation of, construed, SO. 193. Common-law Terms in statutes have common-law meanings, SO. 96, 268. Common Meaning given statutory terms, SO. 100-102. Common Nuisance. See Nuisance, To THE Common Nuisance. "Common Oppressor" not sufficient in indictment, OP. i. 530. Common Right. See Derogation or Common Bight. 730 Common Sabbath-breaking, how in- dictment for nuisance of, DF. 662, and see Lohd's Day. Common Scold (see Nuisance, Pub- lic Order), full exposition, OL. i. 1101- 1105, OP. ii. 199-201, DF. 791, 792; pun- ishable, CL. i. 540, how, 943 ; words, in indictment, CP. i. 494, ii. 200 ; how minute the allegation, CP. i. 494 ; joinder of defendants, CP, i. 470 ; " to the com- mon nuisance," CP. ii. 863. Common Seamen are "crew," SO. 209. Common Seller (see Liquor Keeping and Selling), offence of being, SO. 1018; allegations and proof, SC. 1035, 1037, 1046, CP. i. 402, DP. 655 ; bill of particulars, CP. i. 645 ; conviction of, as to the single sales, SC, 1027. " Common Thief," words, in indictment, CP, i. 530. Common Tricks of Trade, in false pretences, OL. ii. 447 et seq. " Common XJtterer," words, in indict- ment, CP. i 515, ii. 271. Commonly Kno'wn, name, OP. i. 686. " Commonwealth." See In This State. Comparison of Hands, . proof by, of writing, OP. ii. 432 6. Compensation of counsel, CP. i. 286, 303-306. Competency of "Witnesses. See Witnesses. Complainant, capacity of, CP. i. 232, 719. Complaining Woman, evidence of, iu rape, OP. ii. 961-968. Complaint (see Affidavit, Binding Over, Cojimitment, Complainant, Information, On Complaint), mean- ing, SC. 242 ; concurrent with indict- ment, SC. 170; one method of prosecu- tion, OP. i. 148-154; whether, commence- ment of prosecution, SC. 261 ; requisites of, amendments, &c., OP. i. 230-234, 639, note ; by whom, SC. 688, and see Com- plainant ; on municipal by-laws, SC. 403-408, DF. 133-136 ; procedure 'by,fuU, exposition, CP. i. 716-727. Complaint of Sufferings by injured person, as evidence, CP. i. 1111, ii. 626. Compound Larceny. See Larceny, Robbery. Compounding (see Amends, Private Satisfaction), fuU exposition, CL, i. 709-715, DF. 123-127; punishable, CL. i. 267-276, 604 ; extends to lowest of- CON GENERAL INDEX TO THE SERIES. CON fences, CL. i. 247 ; by receiving stolen goods, CL. i. 699 ; allegation of time, CP. i. 404 ; how indictment for conspiracy to procure, DF, 300. Compulsion taking away criminal qual- ity from act, CL, i. 346-355. Computation of Time in Statute (see Day, Month, Time, YEAR),yii// exposition, SO, 104 6-1 U; as to when statute takes effect, SO. 31 a ; in limita- tions statute, SO. 259. " Conceal," meaning, SO. 769-771. " Concealed," in carrying weapons, SO. 787, 788, 799. Concealed Weapons. See Cabrying Weapons. Concealing Birth, how indictment for, OP. i. 527, see Concealment op Bikth. Concealing Books by bankrupt, DP. 238. Concealing Death. See Bastard, Concealment of Birth. Concealment, effect of, on limitations statute, SO. 261 c ; of self by defendant, evidence against him, OP. i. 1250. Concealment of Birth (or Death), full exposition, SO. ,763-780, DF. 278; further of the allegations, OP. i. 465, 527. Conception in evidence of rape, CP. ii. 971. Concluding Part, of indictment, CP. i. 602-607, 647-652 a, DF. 65-69 ; of count, CP. i. 429, DF. 67, and see Count; of complaint on by-law, SO. 406, DF. 134, 171. Conclusion of La-w need not be al- leged, CP, i. 515, DF. 407, note, 564, note, 684, note, 734, note. "Concubinage" in seduction statute, SC, 641. Concubine as witness, SO. 613, CP. i. 1154. Concurrent Jurisdiction (see ConRT, Jcrisdiction), there may be, CP. i. 31.5, and numerous other places. Concurrent Remedies, general doc- trine of, CL. i. 778-815 ; statute and by-law, OL. i. 1068, SC. 23, 24 ; both cor- poration and individual members indict- able, CL. i. 424; doctrine of, avoiding implied repeal of statute, SC. 163 d-16i; civil, criminal, &c., SC. 169, 170. Condensed Rules of interpretation, SC. 78-82. Condition, precedent, CL. i. 914; subse- quent, CL. i. 914 ; violated, CL. i. 915 ; effect of violating, OL. i. 915 ; statutes to take effect upon, SO. 36 ; detaching, in forgery, CL. ii. 578. Conduct, of defendant as evidence, CP. i. 1247-1254; in liomicide, CP. ii. 629; of deceased, CP. ii. 609-618 ; in insanity, CP. ii. 687 a ; on issue of chastity, SO. 649, 650. And see CP. ii. 13, 235, 428. Conductor excluding passenger, OL. ii. 37. " Confectionery " too indefinite in alle- gation, DF. 767, note. Confession, Confessions (see Admis- sions), /«// exposition, CP. i. 1217-1262; by plea of guilty, OL. i. 977 ; grand juror contradicting, CP. i. 857, 858 ; opening of, to jury, OP. i. 969 ; of one defendant among several, CP. i. 1019 a; to corpus delicti, CP. i. 1058 ; in blas- phemy and profaneness, CP. ii. 125 ; by co-conspirator, CP. ii. 228, and see Co- CONSPIRATOE ; of adultery, SC. 686, mar- riage, 687, incest, 735, bastardy, 780, liquor selling, 1048. Confidence Game, DP. 431. Confining Master of Vessel, DF. 580 and note, and see PiEAcy. Confirming. See Corroborating. Confiscating Liquor (see Liquor Keeping and Selling), laws for, SO. 988 b, 1055 ; constitutioniii, SO. 993, 994, 1056; the proceedings, DF. 645. And see FoKFEiTDRE, Gaming Implements. Confiscation Acts (see Fokpeixuke), forfeitures by, CL. i. 821. " Conflict " (see Partial Conflict, Re- pugnance), statute repealing laws in, SC. 152. Conflict of Jurisdiction. See Juris- diction. Conflict of LaTvs in liquor selling, Sd 1030. Conflicting Provisions (see Provis- ions), repeal of statutes by, SO. 153-163. Conflicts of Clauses in statutes, SO. 62-65. " Congregating " in statute against gaming by minors, SC. 889. Congregation (see Dlstureing Meet- ings), procedure for disturbing, CP. ii. 295-297, DF. 369, 370. " Congregation Assembled," mean- ing, SO. 211. Congress (see Act op Congress, Con- stitution, Members op Congress), power of, as to elections, SO. 804, 810. 731 CON GENERAL INDEX TO THE SERIES, CON Conies, when, subjects of larceny, CL, ii. 773. Conjunctive Allegations (see Or) where law is disjunctive, OP. i. 585-592. Conjunctive Sentences (see Bad Eng- lish), interpreting, as disjunctive, SO. 81, 243. Connivance, See Consent. Conquest (see Law of Nations) of country not change its laws, OL. i. 14. Consanguinity, what, disqualifies juror, OP. i. 901. Conscience. See Divine Law, Rea- son AND Conscience. Conscientious Convictions (see Di- vine Law) not justify blasphemy, CL. ii. 82. Conscientious Scruples disqualifying juror, OP. i. 852, 918. Consent (see Age of Consent, Embez- zlement, Jeopardy, Not Consent, Kapb, Waiver of Right), of injured party, to injury, OL. i. 257-263, SO. 232, 234; to homicide, OL. i. 510, rape, 766; to second jeopardy, OL. i. 995-1007 ; con- stitutional rights waived by, OL. i. 995, 996 ; as rendering act no assault, CL. ii. 35, 36, 72 b, SO. 495, 496 ; to embezzle- ment, CL. ii. 365 ; to change of venue, OP i. 73 ; as dispensing with allegation, OP. i. 96 ; waiving disqualification of judge by, OP. i. 314; as to number and unanimity of jury, CP. i. 898 ; to jury's separating, OP. i. 998 ; as to proof of want of, in larceny, OP. ii. 752 a ; to another's treason, SO. 1 39 ; young girl's, to carnal knowledge, SO. 484, 495 ; of girl, in seduction, SO. 634, 643 ; of par- ent, SO. 635 ; whether, adultery where no, SO. 660 ; woman's, to abortion, SO. 744, 747, 749, 760. Consequences of Act (see Act, Crimes, Pardon, Punishment), par- ticular and general, distinguished, CL. i. 223-225 ; presumed to have been in- tended, CL. ii. 16, 115-117. Consequences of Statute, interpreta- tion should consider, SO. 82, 93. Conservator of Peace, ancient office of, OP. i. 174 ; justice of peace and court as, CP. i. 225, 229. Consideration Paid, effect of, in false pretences, OL. ii. 475. Consistent Provisions, whether new, can repeal old, by implication, SO. 158- 162. 732 Consolidated Sentence (see Sen- tence), CP. i. 1329. Conspiracy (see Attempt, Combina- tion, Common Conspirator, Work- man), /u// exposition, CL, ii. 169-240, OP, ii. 202-245, DF. 279-315; punishable, OL. i. 592, 593 ; combination is the act, OL, i. 432 ; to do civil injury, CL. i. 592 ; against animals, CL. i. 597 a ; the will must contribute, not mere presence, CL. i. 633, 634 ; one committing indepen- dent crime, CL. i. 634 ; consequences ac- cidental, OL. i. 635 ; intent common, act by one, CL. i. 636 ; general intent, CL. i. 638 ; circumstances modifying guilt in, CL. i. 638, 639 ; in treason, plot changed, CL. i. 638 ; species of attempt, CL, i. 767 ; to adultery, OL. i. 768 ; proof of full of- fence meant, CL. i. 792, 814 ; not by one person, OL. i. 801 ; as disqualifying to be witness, OL. i. 974, 975; as to appoint- ments to office, OL. ii. 86; stat. 33 Edw. 1, CL. ii. 124; to get undue price for goods, OL, ii. 452 ; locality of indict- ment, CP. i. 61 ; laying overt acts, CP. i. 437 ; joinder of defendants, CP^ i. 464, 468 ; to defraud, OP. i. 516 ; bill of par- ticulars, OP. i. 644 ; wife as witness, OP. i. 1019, SO, 688; separate trials, CP. i. 1022 ; new trial to one, CP. i. 1038 ; statute of limitations, SO. 260 ; to seduce or marry woman, SO. 625, 629, note; against freedom of election, SO, 803, DP. 394 ; in nature of embracery, DF. 851 ; seditious, DF. 941. Constable (see Arrest, Malfeasance, Officer, Sheriff, &c.), permitting escape of street-walker, OL. i. 707 ; pun- ishable for what malfeasance, OL. ii. 978 ; institute criminal proceedings, OP, i. 33 ; arrests by, without warrant, OP. i. 170, 181 et seq. ; refusing to accept office of, CP. ii. 820, 821, DF. 919; how indict- ment for extortion by, DF. 414 ; against, for not executing mittimus, DF, 681, 682 ; whether, act by deputy, SO. 88. Constitution, Constitutions (see Eng- land, State Constitution, Stat- utes, Written Laws), interpretation of written, full exposition, SO, 91-92 c; is law, SO. 11a, 89 ; requiring, or not, legislation to give effect to, SO. 11 a, note, 92 6, see Constitutional Power ; place among laws, of United States, SO. 11 a, 12; of State, SO. 16; statute vio- lating, void, SO. 20, 33, 34, 36-37 a, CL. CON GENERAL INDEX TO THE SERIES, CON i. 24 ; prohibiting ex post facto laws, SO. 29, 85 ; who interpret, SO, 13 a, 35-35 6; as to retrospective legislation, SO. 83 et seq. ; construed as part of statute, SO. 89 ; statute construed not to violate, SO. 90 ; provision adopted, SO. 97 ; usage in construction, SO. 104 ; carries remedy with right, SO. 137 ; inhibiting repeal of statute, SO. 147 ; may be directory, SO. 256. Constitution of tJnited States (see CoNSTiTtTTiou, Government, Juris- diction, United States), judicial power under, OL. i. 56, 57, 195, 196; precedence of, as law, SO. II, 12 ; inter- pretations of, by national judiciary, con- trolling, SO. 35 b. Constitutional, prosecuting officer to render indictment, DP. 16. Constitutional Law (see Constitu- tion, Ex Post Facto, Jurisdiction, Law of Nations, United States, and other particular titles), as to military and martial law, OL. i, 43-68; suspend- ing habeas corpus, OL. i. 63, 64 ; juris- diction of States over citizens abroad, OL. i. 152, 153; over Indian territory, OL, i. 154; United States within State limits, OL. i. 155-181 ; outside State lim- its, OL. i. 182-188 ; gaming, lotteries, liquor selling, OL. i. 493 ; cruel and unu- sual punishments, CL. i. 946, 947 ; par- don, OL. i. 899, 903, 904, 909-915 ; no second prosecution, OL. i. 978-1070; blasphemy and profaneness, OL. ii. 81 : contempts in absence of court, CL. ii. 257, 258 ; importing coin, CL. ii. 282 ; otherwise of coin, OL, ii. 28.i ; partial, embezzlement, CL. ii. 381 ; forgery, CL. ii. 556-558 ; county of the indictment, CP. i. 50 ; locality of crimes against United States, CP, i. 64-67 ; new venue by statute, CP, i. 76 ; forms of the indict- ment, OP, i. 86-88, 95-112, DP, 23, 210; allegations as broad as punishment, OP, i. 86-88, 95-112 ; criminal informations, CP. i. 145 ; fugitives from justice, CP. i 219-223 6; search warrants, CP. i. 240 et seq. ; bail, OP. i. 261 ; counsel for prisoners, CP. 1. 301, 305, 306; fixing meaning to statutory words, CP. i. 358 ; allegation of place, OP. i. 385 ; conclud- ing part of indictment, OP. i. 650 ; stat- utes of jeofails and amendments, OP. i. 711 ; number of grand jurors, CP, i. 855; jury trial, CP, i. 890-894 ; qualifications of petit jurors, OP. i. 900 et seq.; opin- ions on, disqualifying, OP. i. 916, 917 making jury judge of law, OP. i. 984 988 ; paying witnesses, OP. i. 959 a, 959 b defence by counsel and self, OP, i. 962 " confronted with witnesses," OP, i. 1 134 "face to face," CP, i. 1204, 1208; deposi- tions, CP. i. 1206; talcing away motion in arrest, CP, i. 1287; respite and re- prieve, CP, i. 1299 ; murder in first and second degrees, CP, ii. 582-587, DP. 546 ; as to holding statutes void, SO. 33-37 ; civil and criminal limitations statutes contrasted, SO. i58 a-2ti7 ; reviving what is barred, SO, 26.5-267 ; place of trial in polygamy, SO. 587, 588 ; punishing Mor- mon polygamy, SO. 596 6; carrying weap- ons, SO. 792, 793 ; elections, SO, 804, 808- 813; gaming, SO, 856 ; lotteries, SO, 957; alleging second offence, SO, 981 ; liquor selling, SO, 989-996, 998 ; indictment for liquor selling, SO. 1036, 1037 ; keeping for unlawful sale, SO, 1056, 1068 ; ped- dling, SO, 1080 ; other business, SO. 1093; cruelty to animals, SO, 1103; selling adulterated milk, SO. 1124; fishing, SO. 1130, 1131 ; killing game, SO. 1135 ; as- sault and battery, DP. 210 ; embezzle- ment, DP. 404; define rights, not take away, OP. i. 113-115, DF. 38. Constitutional Power, when, requires legislation, OL. i. 174, 177, SO. 11 a, note, 92 6. Constitutional Provision (see Con- stitution), construed by intent of makers, SO. 92 a ; when retrospective, SO, 92 a ; adopted from other State, SO, 97. Constitutional Rights, waiving, OL, i. 995-1007, SO, 809. Construction (see Inteepketation), statute directing the, of statute, SO, 85 6 ; offence not created by, SO, 220. Construing Laws Together (see One System, Together), doctrine of, full erpositi'on, SO. 86-90. Consuls, office of, explained, OL. i. 129; quasi judges under treaties, CL. i. 122, 123; in what tribunal and by what law prosecuted, OL, i. 181, 196. " Consume " in indictment for arson, DF. 179, note. Contagious Disease (see Infected Person), one not tried while having, OL. i. 354 ; stay in own house, not go or be taken to public place, OL. i, 490. 733 CON GENERAL INDEX TO THE SERIES. CON Contemplated Means, alleging, in con- spiracy, DF. 291, 293. Contemporaneous Interpretation of statute, SO, 104. Contemporaneous Usage, effect of, in construing statute, SO. 104, 149. Contempt of Court {see Court, In Contempt, Jbdge, Legislativk Bod- ies, Paudon ),/«// exposition, OL, ii. 241- 273, DF. 316-329 ; by grand juror, and witness before grand jury, CP. i. 869; disobeying order, CL. i. 240; whether, pardonable, CL. i. 913 ; whether sum- mary proceeding for, bars indictment, CL. i. 1067 ; indictment for slander in nature of, DF. 63+ ; arrest on Sunday for, CP. i. 207 ; witness disobeying order of exclusion, CP. i. 1191. Context determining meaning of words, SC. 82, 86, 87, 246. Continuance (see Trial), full exposi- tion, CP. i. 951-951 c, DF, 1065 ; before magistrate, CP. i. 234 a ; whether pris- oner present at motion for, CP. i. 269 ; defendant to plead before asking, CP, i. 730; on bill ignored and on examina- tion, CP. i. 870 a ; working severance of defendants, CP, i. 1023 a; admissions in affidavit for, CP, i. 1255; promise of, CL, i. 997, note. Continuando (see Continuing Of- fences, Time), doctrine of, and form, CP. i. 393-395, DF, 82-84. " Continue to Cohabit " in polygamy, SO, 588, 603, DP. 883. Continuing Offences, what, and al- leging time in, CP, i. 388, 393-397, 402, ii. 103, 312, 866, SC, 703, 722, 734, 970, DF, 81-84. Contra Formam Statuti See Against, &c. Contra Facem. See Against the Peace. Contract, Contracts (see Agreement, Forgery, Private Writings, Prom- ise), meaning, CL, ii. 568 ; when, not enforced, void if contrary to statute, &c., CL, i. II, SC, 138 a, 254, 1030, 1031; breach of, when not indictable, CL. i. 582, ii. 665 ; allegation and proof of, in cheat, CP, ii. 161 ; as element in bailment, SO, 423; lottery franchise not, SO. 957 ; sale is an executed, SO, 1013 ; as to interpreta- tion, compared with statute, SC, 4, 77; interpreted by subject. SO. 98a; "month" in, SO, 105, note ; private statutes are i 734 quasi, SO. 113; enticing or hiring away one under, DF, 576, 577 ; conspiracy to seduce from, DF, 303 ; methods of al- leging a, DF, 303, note. Contracting and Expanding (see Cutting Short, Effect, Expanding Meanings), doctrine of, in interpreta- tion of statutes, full exposition, SC. 188- 199 a. [Por contracting and expanding ilie effect see Cutting Short, Effect, &c.] Words contracting in meaning, SC. 119-121 ; one law, by another, SC. 123. Contradiction, Contradictions (see Eepugnanct, Witnesses), in defend- ant's utterances, evidencing guilt, CP. i. 1252 ; in dying declarations, CP. i. 1209. " Contrary to Allegiance," the allega/- tion, CP. i. 647, ii. 1034, DF. 987. " Contrary to Form of Statute." See Against, &c. " Contrary to La'W " (see Unlawful) in indictment for gaming, SO. 909. "Contravening" in repeal of statutes, SC. 152. Contributory Negligence not doctrine in criminal law, CL. i. 256, ii. 662 a. Convenience, consulted in criminal pro- cedure, CP. i. 7 ; how, in change of venue, CP. i. 71. Conversation, Conversations (see Hearsay), about cause, in presence of jury, CP, i. 996 ; between separated wit- nesses, CP. i. 1190 ; husband and wife, CP. i. 1 1 55 ; in murder case, CP. ii. 625, note. Conversion, what the, in larceny by bailee, SC. 424 ; in embezzlement, CL, ii. 372-378, CP, ii. 336, 337, 341. Conveyance (see Deed, Public Con- veyances) of lands in adverse posses- sion, CL. ii. 137-140. " Conveying," in statute, not " fur- nished " in indictment, CP. ii. 945. Convict, when, witness, CL i. 972-976. " Convicted," in disqualification for litiuor license, SC. 84 a ; in Pennsylvania statute, CL. i. 963, note. Conviction (see Foreign Conviction, Jeopardy, Previous Conviction, New Trial, Pardon, Record of Conviction, Witnesses), meaning, SO. 348 ; of one on charge against sev- eral, OL, i. 800-802; as barring second prosecution, OL. i. 994, 1021, 1022 ; only on pursuing established forms, CP. i. 89- 94; on view, CP. i. 150, 151; on com- COR GENERAL INDEX TO THE SERIES. COU plaint or irformation, CP. i. 152, 153; bail between, and sentence, OP. i. 252 ; court directing, OP. i. 977 ; as to witness, applied to testifying defendant, OP. i. 1185; costs following, OP. i. 1317; to precede forfeiture of right to vote, SO. 809 ; for selling liquor, not a licSnse, SO. 1005. Convictions (see Summary Convic- tions) before msigistraXe, full exposition, OP. i. 716-727. " Cooling Time." See Homicide. Coons not subjects of larceny, OL. ii. 773. Copy, forgery of a, CL. ii. ."129 ; supplying lost indictment by a, CP. i. 1400. Copy of Indictment, prisoner to have, and how, OP. i. 959 a ; waiving, OP. i. 126. Coram Nobis, Coram Vobis, writ of error, DP. 1087. " Cord of Wood," moaning, SO. 222. Corn-crib, what a breaking of, SO. 312. Corner-stone, removing, OL. ii. 985, and see Bounds, &c. Coroner (see Constable, Opficek, &c.), preventing, from holding inquest, &c., CL. i. 468, ii. 1188; malfeasance by, OL. ii. 394, 978, and see Extortion ; pre- senting criminal information, CP. i. 143 ; conservator of peace, CP. i. 225 ; power to bind over, CP. i. 229 6 ; depositions taken before, OP. i. 257, 1198-1200; juror of, as petit juror, CP. i. 914 ; usurp- ing office of, DP. 848. Coroner's Inquest (see Bail), nature of, OP. i, 229 b; finding of murder by, CP. i. 256, note ; serving at, as disquali- fying juror, CP. i. 914. " Corporal Oath " (see Oath, Perjury, Solemn Oath), meaning, CL. ii. 1018; in indictment, OP. ii. 913. Corporal Punishment (see Sentence), not adjudged in absence, CP. i. 275 ; sentence to, full exposition, CP. i. 1310- 1312. And see Cruel and Unusual. Corporate Name, how allege and prove, CP. i. 488, 682, ii. 445, 455, 456, SO.' 402, DP. 79, note. Corporation (see By-laws, Chaeteh, Municipal Corporation, Private Corporations), responsibility of, for crime, full exposition, CL. i. 417-424; defined, CL, i. 417 ; interests public, CL. i. 246 ; vested rights, pardon, OL. i. 910 ; " person " in embezzlement, OL. ii. 337 ; extortion from, OL. ii. 408 ; forgery on non-existing, OL. ii. 543 ; forgery on, CP. ii. 455; whether "person," SO. 212; electing officers after statutory time, SO. 256 ; statutes modifying proof of, SC. 402 ; power to make by-laws, SC. 405. Corpse (see Burial, Dead Body, Sep- ulture), indictable to steal, refuse to bury, dig up, sell for dissection, CL. i. 506' Corpus Delicti, proof of, CP. i. 1056- 1060 ; in larceny, CP. ii. 739, 741 ; in child murder, SO. 780. Corroborating, witness, OP. i. 1150 ; ac- complice, OP. i. 1169, 1170; testimony of woman as to her chastity, SO. 650 a. " Corroborating Circumstances " in election bribery, SC. 843. Corruption (see Evil Intent, Intent, &c.), proof of, in perjury, CP. ii. 935 a. Corruption of Blood, what is, OL. i. 967-969 ; not with us, CL. i. 970 ; effect of pardon on, CL. i. 918. Corruption of Officers. See Mal- feasance, &c. Corruption of Public Morals, indict- able, CL. i. 500-506. " Corruptly," in indictment for perjury, CP. ii. 922 ; for malicious mischief, DF. 699, note. Costs, full exposition, OP. i. 1 313-1321 ; on joint indictment, CP. i. 1035 ; effect of pardon on, OL. i. 910, 911 ; whether statute as to, retrospective, SO. 84, note ; discretionary or not, SO. 112, note, 255 ; statute giving, construed, SO. 195 a; mandatory, SO. 255 ; repeal, SO. 178. " Cottage," meaning, SO. 291, note. Counsel for Defendant (see Advo- cate, Attorney, Lawyers, &c.), ef- fect of employing too many, CL. i. 683, note ; anciently, not allowed, CL. i. 996, OP. i. 14-22 ; statute, &c., allowing, OP. i. 296-302, SC. 227; duty of, DF. 37- 41, CP. i. 94, 309-313 ; presence of, CP. i. 270; queen's attorney as, in England, OP. i. 300 ; as to prosecuting officer with us, CP. i. 302 ; appointment, compensa- tion, trial without, CP. i. 303-307 ; ami- cus curise, CP. i. 308 ; declining or ac- cepting retainer, CP. i. 309,310 ; express- ing own belief, OP. i. 311 ; as witness, OP. i. 312 ; right to argue, OP. i. 313 ; before magistrate, OP. i. 726 ; continuance for sickness of, CP. i. 951 c ; dividing defence between, and prisoner, OP. i. 962 ; open- 735 cou GENERAL INDEX TO THE SERIES. COU ings by, CP. i. 967-973; summings up by, CP. i. 974-975 6 j arguing law to jury, CP. i. 986; for joint defendants, CP. i. 1026, 1040; how acts of, bind defend- ant, CP. i. 1281. Counsel for Government (see PnosB- cuTiNO Officer, Special Cohnsel), proceeding without, CP. i. 962, 963. " Counsel or Procure," meaning, CL. i. 670. Count, Counts (see Bad Counts, Du- plicity, Indictment, Joinder of Counts), arranging indictment into, OP. i. 421-431 ; and indictment, equiva- lents, SC. 26-2, note ; separate conclusions, DP. 67 ; method of joining, DP. 64 ; nu- merous, objectionable and how avoided, DP. 11-24, 32, 228 ; in joining offences, CP. i. 449-451 ; quashing, CP. i. 764 ; more than one, partial verdict, CP. i. 1010; general verdict on good and bad, CP. i. 1015, 1015 a; sentence, CP.i. 132.5- 1334; further, DP. 21, 113, note, 114, note, 160, 161, 196-198, 615, 1017, note. " Counterfeit " in forgery indictment, DP. 460, note. Counterfeit Coin, Counterfeiting the Coin (see Forgery, Similitude, Utter), full exposition, CL. ii. 274-300, CP. ii. 246-271, DP. 330-344 ; punishable, CL. i. 479 ; meaning of, CL. ii. 289-291 ; meaning of having " similar pieces," SC. 214; "coin resembling," &c., SC. 225; " tool," " instrument," " edger," &c., for making, SC. 319; conviction for, under State and United States laws, CL. i. 178, 988 ; drunkenness excusing uttering, CL, i. 412 ; species of attempt, CL. i. 437 holding procurer as doer, CL. i. 686 what an attempt to utter, CL. i. 765 similitude, CL. i. 769 ; conviction of less than charged, CL. i. 799 ; how specific the indictment, CP. i. 529 ; on statute, what negative, CP. i. 636 ; other instances in evidence, CP. i. 1126, 1127; indict- ment for false pretence of.DF. 422, note. Counterfeit Money (see Attempt, Forgery, Utter), having, with intent to utter, CL. i. 204 ; passing, OL. iL 148, 286, 430, 605-608 ; statute against pass- ing, construed, SC. 223 ; against pur- chasing, SC, 225 ; uttering of, SO. 306 ; putting off, SO. 307; passing, SC. 308; having in possession, SC. 309, note. Counterfeiting Records, indictable, OL. i. 468, and see Forgery, Becobd. 736 Counters of faro bank, whether " money," SO. 874. " Countersigned by Cashier," mean- ing, SO. 217. •Counting-house," meaning, SO. 295, note. Country (see Foreign Country, Out OP Country, Territorial Limits), one out of, indictable here, CL. i. 110 et seq. ; statutes extend only to offences within the, SC. 141. Counts. See Count. County, Counties (see Jurisdictioit, Locality, Margin, Place, Terri- torial Limits, Venue), what, for the indictment, full exposition, OP. i. 45-63 ; extent of, on sea, &c., CL. i. 146-149 ; jurisdiction of United States within, OL. i. 176; effect of acquittal on indictment in wrong, OL. i. 1053 ; pardon of penal- ty vested in, OL. i. 910 ; special verdict as to the, CP. i. 1006 ; the, in embezzlement, CP. ii. 326, libel, 805, forgery, 475-480 ; allegation and proof of, in homicide, OP. ii. 638 ; in kidnapping, CP. ii. 693 ; lar- ceny out of, and goods brought into, OP. ii. 727-729, DP. 607, 608 ; the, paying costs, OP. i. 1316 ; the, in polygamy, SO. 112, 587, 588 ; effect of dividing, SO. 144, CP. i. 49; meaning of statute as to the, for trial, SC. 198; transmitting forgery to another, SC. 306 ; act of accessory in different, from principal's, DP. 116, note. County Auditor, whether, an " ofiBcer," SC. 271 a. County Claims not "money," SC. 346. " County Court " interpreted to include other courts, SC. 190 6, note. County of Offence, the real, not ficti- tion have, SO. 82, 98 ; distinguished in in- terpretation from meaning, SO. 118 a, 189; cutting short statute in, SO. 231 ; implied, excluded by express terms, SO. 249. "Effect Following," meaning, OP. i. 559, 560. "Effects" (see Securities and Er- FEOTS), mCcining, CL. ii. 359. Effectual, statute to be made, by con- struction, SO. 82, 137. EiEgy, EflBgies, nuisance of exhibiting, in window, OL. i. 1146 ; libel by, OP. ii. 795, DF. 628-631. Eggs as subjects of larceny and how de- scribed, OP. ii. 707. Eight-hour Law of Congress directory, SO. 255. Elastic, language is, SO. 92 d, 188; and how in criminal statutes, SO. 188-240. Elasticity of Statutes. See Con- TKACTiNG, Contracting and Expand- ing, Cutting Shokt, Effect, Ex- panding, &e. Elect, criminal person not to, OL. i. 791. Election, compelling, at tn&\, fall exposi- tion, OP. i. 454-462 ; as to steps in crimi- nal cause, OP. i. 28-44 ; as to form of allegation, OP. i. 332-335 ; joinder of counts, OP. i. 425 ; in duplicity, OP. i. 442 ; as to witnesses and their order, OP. i. 966 a-966 c ; on what statute or offence to proceed, SO. 164, 1027 ; of methods in the law, SO. 163 d-l(>i; between the statutory and common law indictment, DF. 541. Election Bribery, how the indictment for, DF, 248, 249. Election Day, selling intoxicants on, SO. 803, DF. 654 ; opening liquor-selling places on, SO. 1070 h. Election Obstructions (see Ob- structing Justice and Govern- ment, Threatening Officer), re- sisting illegal questions, SO. 223. Election Offences (see Betting on Elections, Qualifications of Vot- er, Vote, Voter), full exposition, SO. 802-843, 931-949, DF, 382-400; OL. i. 471, 686, 821; how allege "qualified voter," OP. i. 627 ; betting, SO. 205, 852, 872, 935 ; indictment for election frauds, OP, i. 627, 80,832-834; proof of election, SO, 947. See Officer of Election. "Election in this State," meaning, SO. 205. Elections (see Betting), defeating, cor- rupting, &c. OL. i. 471. Elective Franchise (see Emancipa- tion, Free Negroes, Guarantee, He- fusing Vote), power of Congrcjss over, OL. i. 169, 170; nature of, SO. 807-809; forfeiture of, SO. 809. Elopement and Marriage, conspiracy to effect, DF. 296. Eluded, statutes construed to avoid being, SO. 82, 200. Emancipation (see Eree Negroes, Negro), responsibility of negro after, OL. i. 893 ; former master's liability on bail-bond, CL, 1. 894; slave-father, CL. i. 894. Embargo Laws, necessity avoiding, OL. i. 351, 824 ; forfeiture for breach of, OL. i, 821, 826. Embassador, exempt from our laws, OL, i. 126, 127; and from arrest, OL. i. 127, OP. i. 207 a ; assault on, CL. ii. 51 ; State courts over, CL. i. 196; appointment, CL. i. 183. " Embezzled," OP. i. 480, ii. 322, 323. Embezzled Goods (see Receiving Stolen Goods), offence of receiving, OL. ii. 1137. Embezzlement (see Bailee, Larceny, Postal Offences, Keceiving Stolen Goods), /«// exposition, CL, ii. 318-383, OP. ii. 314-343, DF, 401-412 ; in general, OL. i. 567, ii. 325; in what county in- dieted, OP, i. 61 ; allegation of time in, OP, i. 397 ; joining counts for, and lar- ceny, OP, i. 423, 449 ; defectively alleging, CP, i. 480 ; bill of particulars, OP, i. 645 ; and larceny, verdict, OP, i. 1010; who servant, &c., in, SO, 271; "lheft"in Texa.s, SO. 413. Embracery (see Bribery, Juror, 3ii- ■ry), full exposition, OL, ii. 384-389, CP. ii. 344-347, DF, 850, 851. Emigrants, when carry laws with them, CL, i. 14, 15. Emigration, right to prevent, CL, i. 512. Emission (see Sexual Intercourse), whether, in carnal abuse, SO, 488 ; in adultery and incest, SO, 661 ; in rape, CL, ii. 1127-1131. "Employment," meaning, SO, 1016. Enacting Clause of Statute (see Clause), meaning, CP, i. 634, 635, 637, note, SO, 56 ; whether restrained by pre- amble, SO, 49—51 ; how indictment as to, OP. i. 633 et seq., 639 ; style of, whether 747 ENT GENERAL INDEX TO THE SERIES. ESC constitutional provision directory, SO. 36 b, note. Enactment (see Statute), old English methods of, SO. 44 ; repeal before formal- ities complete, SO. 151. Enclosure of buildings within curtilage, SO. 28.5, 286. Enclosures (see Public Ordee), riot- ously pulling' down, CL. i. 537. Endangering Life with poison, how iu- dictmcint, DP. 213. Endeavoring to Seduce (see Seduc- tion) soldiers, OP. ii. 76. Endeavors. See Attempt, Solicita- tion. Enemy, Enemies, rights of alien, CL. i. 134 i aiding, in time of war, CL. i. 306 ; killing, in battle, CL. ii. 631 ; cannot be juror, CP. i. 902. Engaging in Slave-trade. See Slate- trade. Engineer, manslaughter by, CL. i. 303 a, note. England, constitutional law of, distin- guished from ours, SO. 33 ; judicial cog- nizance of early laws of, SO. 97. English (see Bad English, Ungkam- matical), indictment, &c., to be in, CP. i. 340-359 ; name of goods stolen to be in, CP. ii. 701 ; ignorance of, disqualify- ing juror, CP. i. 925. English Statute (see Statutes) which is common law here, what repeals, SO. 161. Engrossed Bills (.see Legislative Records), looking into, as to statute, SO. 37. Engrossing (see Public Wealth), /u/^ exposition, CL. i. 518-527, CP. ii 348-350. Enmity, defendant's, to injured person, in evidence, CP. i. 1109. " Enrolment" (see Fokgert), meaning, CL, ii, 570. " Enter -without Breaking," meaning, in statutory burglary, SO. 221. Entered by Court, plea of not gnilty, DP. 1050. Entering in burglary, CP. ii. 140, 141. Entering Land after Forbidden, how indictment for, DP. 994. Enticement, essential in seduction, SO, 634 ; attempts by, OP, ii. 74-76, and see Solicitation. Enticement to Crime, how the indict- ment for.DF. 105, 106, 114, 11.5, 119-121. •Enticing" to gaming, SO. 876, 881. 748 Enticing Apprentice, GL. i. 582, and see Labor Offences. Enticing away Child, OL. i. 884 b. "Entire Hay" (see Day), meaning, SC. 108 a. Entry (see Breaking and Entering, Burglary, False Entry, Forcible Entry), of order to quash, DF. 1032 ; of 4 withdrawal of juror, DF. 1035; of with- drawal of plea, DF, 1035, and see With- DisAWAL OF Plea ; altering of, in regis- ter, OL, ii. 531. Enumeration, weakening effect of, in statute, SO. 245, 246. E O Table punishable by statute, SO. 864. Equality of La-ws, doctrine of, SO, 1 89 a. Equipping Vessels. See Neutrality Laws. Equity (see Injunction), not in criminal causes, CP.i. 1412-1417; suit in, "action," SO. 350. Equivocal, indictment not to be, OP. i. 325. Erasures in indictment, OP. i. 338. " Erect and Build," meaning, SO. 208. " Erecting," meaning, in statutes to avoid nuisance, SC. 208, note. "Erection," meaning, SO. 291, note. "Erects," when, livery stable, SC. 208, note. Erroneous Proceeding as to limita- tions statute, SO. 262. Erroneous Sentence (see Arrest op Judgment, Sentence, Witness), de- fined, and effect of, CL. i. 930-932 ; as to disqualification of witness, CL. i. 975 ; as to second prosecution, OL. i. 1021,1022; consequence of reversal of, OL. i. 1021, 1022 ; court acting without authority, OL. i. 1028. Error. See Certiorari, Jeopardy, Writ of Error. Errors. See Clerical Errors. Escape (see Negligent Escape, Pris- on Breach, Prisoner at Large, Re- arrest, Rescue), /«// exposition, CL. ii. 1064-1106, CP. ii. 940-946, DF. 890, 891, 893-898; negligent, punishable, CL, i. 218, 316, 321 ; voluntary, more heavily, OL. i. 321 ; wife assisting in, CL, i 359 ; assisting, know of principal's guilt, OL. i. 693 ; of street-walker, OL. i. 707 ; others, in misdemeanor, OL. i. 707 ; rearrest after, OP, i. 163, 1332 ; effect of, on subsequent proceedings, OP. i. 269 ; EVI GENERAL INDEX TO THE SEEIES. EVI how indictment, CP. i. 529 ; of one com- mitted for non-payment of fine, CP. i. 1305; proceedings foi- rearrest and re- turn of prisoner after, CP, i. 1382-1385, DP. 898, note ; insuflSoiency of bail not an, CP. i. 1386; of statutory traitor, SO, 136; a writing not " instrument, arms," &c., for, SC, 217 ; actual or attempted, as f evidence of guilt, CP. i. 1250. Escape Warrant, arrest under, OP, i. 207, note. Escaped Prisoner, no steps in behalf of, OP. i. 269 ; returning, to prison, OP, i. 1382-1385, DP. 898, note. Estate, creating spurious title to an, OL, ii. 216; word, insufScient in allegation of ownership, SC, 457. Estoppel, certainty in pleading an, CP, i. 324; as to constitutional existence of statute, SC. 37 a. Estray, Estrays (see Animals, Stray), violating laws of, CP. ii. 828, SC. 462-464, DP. 176. Estreating Recognizance, CP. 1. 264 e. Ether, impairing the will, in rape, CL. ii. 1126. Evading Tax (see Public Retenue, Kevenite Laws, Tax), various forms of, DP. 972-975. Evading Toll (see Toll-gate, Tolls), offence of, DP. 984. Evasions of Laws against liquor sell- ing, SC. 1013. Evidence (see Anotheu Crime, Cir- cumstantial, Confession, Corpus Delicti, Intent, Irrelevant, Proof, Show forth in Evidence, Testi- mony, Weight of Evidence, Wit- ness, &c. ; and see the other titles gen- erally, the evidence being mingled with the law throughout this series of works, except under those titles which are di- vided between " Criminal Law " and " Criminal Procedure," when it is allot- ted to the latter), general rules oi,fuU exposition, OP. i. 1046-1090 (namely, bur- den of proof, CP. i. 1048-1051 ; covering the whole issue, CP. i. 1052-1055; the corpus delicti, CP. i. 1056-1060; alibi, CP. i. 1061-1068; other, in rebuttal, CP. i. 1069-1072 ; circumstantial, OP. i. 1073- 1079; best, and res gestae, OP. i. 1080- 1087 ; statutory changes in rules of, CP. i. 1088-1090) ; weight of, and reason_able doubt, /«/; exposition, CP, i. 1091-1095 ; presumptions as, full exposition, OF. i. 1096-1101 ; some special presumptions, full exposition, CS.i. 1102-1131 (namely, innocence, CP. i. 1103-1106 ; motive, CP. i. 1107; expressed feelings and pur- poses, CP. i. 1108-llU ; character of de- fendant, CP. i. 1112-1119; commission of another crime, CP. i. 1120-1 129 ; from official conduct and duty, CP. i. 1130, 1131) ; documentary, full exposition, CP. i. 1132-1134; different classes of wit- nesses and their testimony, y«// exposi- tion, CP. i. 1 135-1187 (namely, who com- petent and who not, CP. i. 1136-1150; husband and wife, CP. i. 1151-1155; ac- complices and approvers, CP. i. 1156- 1172; informers and the like, CP.i. 1173- 1176 ; experts and others as to opinions, CP. i. 1177-1180; defendants testifying for themselves, CP, i. 1181-1187); ex- cluding witnesses from court,yu// exposi- tion, dS.'i. 1188-1193; deceased and ab- sent witnesses,_/u// exposition, OP. i. U94- 1206 ; dying declarations, yii// exposition, CP. i. 1207-1216 ; confessions and admis- sions, judicial and extra-judicial, yii/i ex- position, (jS,\. 1217-1262; possession as, of having procured, CL. i. 204 ; rebutting presumption of marital coercion, CL. i. 362 ; of infant's capacity for crime, OL, i. 370, 371 ; of insanity, CL, i. 384, 385, OP. ii. 676-687 b ; accessory denying prin- cipal's guilt, CL, i. 669 ; doer presumed to intend thing done and consequences, OL, i. 734, 735 ; of the parties, CL, i. 973, OP. i. 1181-1187; specific sales show common seller, CL. i. 1065 ; meaning of the terra, CP. i. 2, 3 ; of an act, not like the act local, CP. i. 51 ; cover entire charge, CP. i. 127-129; obtained by search-warrant, CP. i. 246 ; as to place of offence, CP. i. 384 ; indictment not to al- lege the, but facts, CP. 1. 514-516 ; prose- cuting officer's care as to, OP. i. 863 ; knowledge of grand jurors as, OP. i. 864 ; order of introducing the, CP. i. 966-966 c, 978 ; court determines sufficiency, CP. i. 978 ; jury to decide on the, CP. i. 979, 989 a ; judge expressing opinion on, CP. i. 981 ; on joint indictment, CP. i. 1033, 1034 ; new trial for insufficient, OP. i. 1278; newly discovered, CP. i. 1279; statutes excluding, construed strictly, SC, 119; kept within period of limita- tions, SC. 264 ; of adultery in divorce causes and criminal, compared, SO. 677- 688. 749 EXC GENERAL INDEX TO THE SERIES. EXE Evidence to Commit, how much and what, CP, i. 233. Evidence to Indict, how much and what, OP. i. 866, 867. "Evil-disposed Person" not necessary in indictment, DF. 46. "Evil Example." See To the Evil Example. Evil Intent (see Felonious Intent, Intent, Mistake of Fact), in statu- tory crime, SO, 132 ; to concur with stat- utory act, SOi 23 1 ; in malicious mischief, SO. 432 a, carrying weapons, 789, elec- tion offences, 805, 806, 8^0-825, liquor selling, 1022, 1023, cruelty to animals, 1113. Evil Shows and Exhibitions (see Exposure of Person, Public Inde- cent Show, Public Snow), full expo- sition, CL. i. 1145-1149; CP. ii. 794 6, 795, 865, DF. 798-801 ; and see CL. i. 500, .'504, 761, 1129, ii. 943, SO. 214. "Evre" is a sheep, SO. 212; whether a sheep is a, SO. 247. Ex Post Facto Lavr (see Constitu- tional Law, Past Offences, Penal Statutes, Ketrospective), constitu- tional jn'ovision against, full exposition, CL, i. 279-284; as to fractions of day when statute takes effect, SO. 29 ; distin- guished from retrospective, SO. 85 ; in- creasing, diminishing, changing, punish- ment for past offences, SO. 176, 184, 185 ; new jurisdiction over past offences, SO. 180 ; statute authorizing prosecution after limitations bar, SO. 266, 267. Examination on Oath, bankrupt re- fusing, &c., DF. 236. Examination of Witnesses, order, methods, &c., CP. i. 966-966 d. Examining Magistrate (see Arrest, Binding Over, Evidence to Com- mit, Magistrate), proceedings before, CP. i. 225-239 a ; not reached by motion in arrest, OP, i. 1285 ; accomplice as State's evidence, CP. i. 1161 ; when tes- timony before, admissible at trial, CP. i. 1197-1 199 ; when confessions and admis- sions before, OP. i. 1258-1262. Example (see To the Evil Example), statute putting thing by way of, £0. 190 6. Exception in Statute (see Proviso, Qualifications), meaning and opera- tion, OP. i. 635, SO. 58 ; making, by construction, SC.117a, 1019, 1020; one 750 statute creating, in another by construc- tion, SO. 156; ingrafting, on statute to prevent repeal, SO. 156 ; in criminal stat- ute, construed liberally, SO. 226, 227, 229 ; ingrafted by written law on statute of limitations, SO, 261 6; in polygamy statute, SO. 595-596 a; express, prevents presumptive, SO. 1019; when and how negative, in indictment, OP. i. 513, 513 a, 031-639, SO. 605, 606, DF. 642 and note. Exceptions, revision of cause by, OP. i. 1265, DF, 1078. Exceptions and Provisos (see Pro- viso), negativing, in indictment, CP. i. 631-642, SO. 605, 606, 798, lOSS ; on statute against gaming, SO. 893, liquor selling, 1042-1044; proof of the nega- tive, SO, 1051, 1052. Excessive Bail, constitutional provisions against, CP. i. 261. Excessive Distress, by landlord, not indictable, CL. i. 538. Exchange, meaning, and distingnished from sale, SO. 1014 ; things taken in, for stolen property, CP, ii. 758. Excise Officer (see Revenue, Tax, &c.), breaking to rescue goods seized by, CL. ii. 111. Excitement. See Public Excite- ment. Excluding Witnesses from court, full exposition, OP, i. 1188-1193. Excusable Homicide (see Defence OF Person, &c., Homicide, Self-de- fence), what, CL. i. 305, note, ii. 620- 622 ; bow punished, CL. ii. 622. Excuse .(see False Excuse), for imper- fect allegation, CP. i. 493-498 ; distin- guished from impediment, as to grand jury, CP. i. 853. Executed Felon, selling body of, for dissection, CP, ii. 1009. Execution of Sentence (see Capital Punishment, Hanging, Sentence), full exposition, OP. i. 1335-1339 ; by what officer, after change of venue, CP, i. 74 ; at different time from that ordered, SO. 255. Executive Act, when, takes effect, SO. 29, note. Executive Officer, liability of, in judi- cial tribunals, OL. i. 463, note. Executive Pardon (see Pabdon), CP. i. 838-848. Executor (see Administrator), put, in statute, for " administrator," SO. EXP GENERAL INDEX TO THE SERIES. EXT 1905; limitations statute not run against, SO. 261 a ; when aver, in indictment for civil homicide, SO. 467, and see DF. 531. Exemption Laws, meaning of " dwell- ing-liouse " in, SO. 242 a. Exemptions, personal to jurors, not ren- dering them incompetent, OP, i. 926 ; in criminal statute construed liberally, SO. 226, 227. Exemptions from Arrest (see Ar- rest) extend to what persons, OP, i. 207 a. Exercising Trade (see Trade), not qualified, statute construed, SO. 196; wife not jointly liable, CL, i. 364. Exhibitions. See Evil Shows and Exhibitions. Exigent, what, and concerning, CP. i. 673. Existing Fact, false pretence to be of, CP. ii. 166. Existing Rights (see Right), statutes construed not to interfere with, SO. 85 a ; further as to, SO. 249, 250 a. Expanding Meanings (see Contract- ing AND Expanding, Extending), in what statutes, permissible, SO. 120; when, and how far, SO. 120, in liberal inter- pretation, 189 d-190e. Expatriation, CL. i. 512. "Expelled," when, in allegation, instead of " disseised," OP, ii. 387, note. Experts, order for, to inspect, &c., OP. i. 959 d; as witnesses,y«H exposition, OP. i. 1 177-1 1 80 ; not included in order of ex- clusion, OP. i. 1190; fees of, CP, i. 1318; who, CP, i. 1179, ii. 632, 687; testimony of, to hand-writing, CP. ii. 432 c ; in homicide, CP, ii. 631, 632; as to insan- ity, CP, ii. 683-687 ; in rape, OP, ii. 973 ; as to age of girl in rape, SO. 491 ; liabil- ity of, to err, OL. i. 390. Expired Statutes (see Repeal), inter- preted with existing, BO, 82, 86 ; re- enacted, how construed, SO, 97 ; whether proceedings under, SO. 1 82 ; repealing, after expired, SO. 187. Explosives (see Combustible and Dangerous Things), how indictment for keeping, DF. 788. "Exportation" (see Designed for Ex- portation), word includes, to another State, SO, 205. Exposing Child (see Child, Conceal- ment OF Birth, Neglects, Parent AND Child), murder by, DF. 526. Exposing Infected Person (see Nui- sance), evil intent alleged in indictment for, CP. i. 524, note. Exposure (see Assault, Neglects, Parent and Child) to the weather, an assault, CL, ii. 29. Exposure of Person (see Nuisance, Public Indecency), /«// exposition, CL. i. 1125-1134, CP. ii. 351-356, DF. 802- 804; punishable, CL. i. 500; to how many, CL. i. 243, 244; another's person, OL. i. 500 ; statutory " open lewdness," &o., SO, 714. Express Malice (sec Homicide, Mal- ice), OL, i. 429, ii. 914, CP. ii. 801. Express Mention in statute excludes implied, SC. 249, 249 a, 1019. Express Repeal (see Repeal) ex- plained, SO, 151-153. Express Words, required to take away jurisdiction, OP. i. 315 ; waiving rights by, CP, i. 893, note; distinction as to repeal by, SC. 153. Expressed Feelings, presumptions from, CP. i. 1108-1111. Expressed Intent of legislature, de- cisive of interpretation, SO. 82. Expressed Opinion (see Opinion) dis- qualifies juror, CP. i. 852, 908-915. Expressed Purposes (see Purposely), presumptions from, CP. i. 1108-Ull. Extending Effect (see Common Law, Effect, Expanding), of one statute by another through interpretation, full ex- position, SO, 128-130 ; of common law by interpreted statute, full exposition, SO, 134-137. "Extort" (see Extortion) in indict- ment for extortion, CP. ii. 358. Extort Money, how indictment for con- spiracy to, DP. 300. Extortion (see Illegal Fees, Mal- feasance, NON-FEASANCF,, OFFICER, Threatening Letters),/«/? exposition, OL. ii. 390-408, CP. ii. 357-364, DF, 413- 417; what, and indictable, OL, i. 573, 587; analogous to compounding, OL. i. 715 ; joint indictment, OP, i. 469 ; '■ great- er or other fees " in statutory, SO. 217 ; out of office, SC, 217 ; thing obtained by, SO. 346, note. Extradition (see Fleeing from Jus- tice, Fugitives from Justice), yitS exposition, OP. i. 219-224 5. Extra-judicial Confessions (see Con- fessions), what, CP. i. 1217. 751 FAL GENERAL INDEX TO THE SERIES. FAL Xixtra-judicial Usage, effect of, in in- terpretation, SO. 104. Ibstra-territorial Force, what permit- ted to statute, SO. 141. Extra-territorial Power. See Jdkis- DICTION, &c. " Extreme Atrocity," homicides by, OL. ii. 725, 729. Extreme Certainty (see Certain- ty) in dilatory pleas, OP. i. 327, 328, 745. Extrinsic Fact, whether, in motion to quash, OF. i. 763. "Face to Face," constitutional provis- ion as to, OP. i. 1204, 1208. Fact, Facts (see Law and Fact, Mis- take OF Fact, Recitations of Facts) , indictment sets out the, not law, OP. i. 329-332, 514-516 ; every necessary, CP. i. 325, 508, 509, 519 ; jury, judge of, OP. i. 979, 989 a ; how far court, OP, i. 989- 989 b ; writ of error for errors of, OP. i. 1369 ; how of, recited in statute, SO. 50 ; indictment should be kept within the, DF. 22, 35; counsel should looli after the, DP. 39. Fact of Marriage, proof of, SO. 609-613, 687. Factors, embezzlement by, OP. ii. 343, and see Embezzlement. Failure to Prosecute, eBfect, as to bail, OP. i. 258; continuance and discharge, CP. i. 951 d-95\f. Fair Ground, criminal law secures to men, OL. i. 252, 545. "False" in indictment for libel, DF. 619, note. False Account, as false pretence, CL. ii. 442; cheat by, CL. ii. 162. False Accusation (see Attempt), of felony, indictable, OL.i. 762; conspiracy to defraud by, OL. ii. 216; how indict- ment for conspiracy to bring, against one, DF. 300. False Affidavit, presenting, CL. ii. 1024 ; to defraud United States, OP. i. 535 ; in- dictment for perjury by, OP. ii. 912, DF. 873, 874 ; two persons joining in one, OP. ii. 936. False Affirmation (see False Pre- tences, Libel, Lie) as false pretence, CL. ii. 428, 432 a, 453. False Alarm of Fire, disturbing peace by, DF. 861. 752 False Ans'wers to election ofiScers, SC. 826, note ; indictment for, SO. 840, DF. 388; proof, SO. 841. False Date, inserting, as forgery, CL. ii. 575, 584. False Dice (see Dice, False Token), cheating by, SC. 847, CL. ii. 143, note, 157, 160, 985,, note; how indictment, DF. 274 ; how indictment for conspiracy to cheat by, DF. 289. False Entries, conspiracy to cheat by, CL. ii. 207 ; forgery in making, CL. ii 586. "False Entry," meaning, SC. 210. False Excuse (see Excuse) is not false pretence, CL, ii. 428. "False, Forged, and Counterfeit," in forgery indictment, CP. ii. 426. False Grammar (see Bad English, Clerical Errors, IsACcnnACY, Un- grammatical), effect of, in indictment, CP. i. 348-354, in statute, SO. 81, 215, 243. False Imprisonment (see Assault, Imprisonment, Kidnapping), full ex- position, CL. ii. 746-756, OP. ii. 365-368, 688-695, DF. 568-572 ; punishable, OL. i. 553 ; through mistake of facts, CL. i. 306 ;. procurer held as doer, CL. i. 686 ; physi- cal touch in, CL. ii. 26 ; whether, includes assault and battery, CL. ii. 56; convic- tion for, on indictment for assault, bat- tery, and, CP. i. 438, note ; by putting convict into unauthorized prison, OP. i. 1338 ; kidnapping as, OP. ii. 688 ; abduc- tion as, SC. 619 ; of seamen, construction of statute, SO. 209. False Label, not forgery, CL. ii. 536. False Latin (see False Grammar) in indictment, CP. i. 348. False Letter, obtaining money by, not larceny, OL. ii 812. False Marks on goods, OL, ii. 147 ; how indictment for cheating by, DF. 275. False Measure. See Cheats, False Token, False Weights. False News, spreading, CL. i. 472-478, 540 ; how indictment for conspiracy to defraud by, DF, 310. False Oath, persuading one to take, CL. i. 468, ii. 1 1 97 ; to procure marriage, DF, 738, and see DF. 853, also Oath, Per- jury. False Personating (see False Pre- tences, Fictitious Name, Forgery, Officer, Personating), punishable, FAL GENERAL INDEX TO THE SERIES. PEA 01. i. 468, 587; voter, OL. i. 471, note, SO. 818 a ; cheating by, OL, ii. 152-155 ; is a false pretence, OL, ii. 439 ; forgery effected by, CL. ii. 583 ; indictment, DP. 387, 426, 868. False Plea, perjury by, OL, ii. 1024. False Pretences (see Cheats, ConN- TEEFEITING, FaLSE TOKEN, FoKGEEY, Larceny, Sleight of Hand, Sym- bol), /«/Z ear/)os/ ness, CP. i. 1138. PET GENERAL INDEX TO THE SERIES. PHY Person and Property, legislative con- trol of, SO. 995, 1130; mutual assistance in defence of, OL. i. 877. Person UnknoTvn (see Name, Neces- sity, Unknown), how, when, CP. i. 495, 546-552, 676-680, ii. 225, 506-510, 1033. Personal Chattels. See Chattel, Goods and Chattels, Larceny. "Personal Goods" (see Defence, Em- bezzlement, Goods and Chattels), meaning, OL. ii. 785, SO. 344 ; choses in action are not, SO. 209. Personal Hostility, ground of challenge to juror, OP. i. 909, note. Personal Injury not inflict on prisoner, CP. i. 216, note. Personal Liberty, statutes in restraint of, construed strictly, CP. i. 184. Personal Presence (see Presknce) not necessarily in same locality with crimi- nal act, CP, i. 53. Personal Property (see False Pre- tences, Larceny, Malicious Mis- chief, Property), meaning, OL. ii. 785, 1165; malicious mischief to, OL, i. 569; words, in statute, how in indictment, OP. i. 616 ; presumed ownership of, in hands of married woman, OP. ii. 752, note. Personal Views (see Judge) of judge not rule interpretation, SO. 70, 189 a, 235. Personal Violence (see Violence), husband's, wife testify to, OP. i. 11 53, ii. 69, 961. "Personating" (see False Personat- ing, False Pretences, Officer), meaning, CL, i. 758. Personating Deceased Soldier to obtain pension, DF. 868. Personating OfBcer (see Cheats, False Personating, False Preten- ces), CL. ii. 163, 212. Personating Voter (see Election Of- fences), SO. 818 a, DP, 387. "Persons" (see Name, Ownership) in allegation not proved by singular, " per- son," SO. 889. " Persuading to Enlist " (see Recrdii- ING Soldiers), meaning, SO. 225. Persuasion. See Accessory, Attempt, Enticement, Solicitation. Petit Jurors, compared as to qualifica- tions with grand, OP. i. 851, 852 ; second service in same case, OP. i. 911-913 ; on trial of joint defendants, CP. i. 1034, 1027-1032 ; qualifications of, in nuisance, OP, ii. 874. Petit Jury (see Grand Jury, Impan- elling of Jury, Jury, Trial), num- bers and qualifications u{', full exposition, OP. i. 895-930 ; impanelling and chal- lenging, fall exposition, CP. i. 931-945; objecting to jurors as they are sworn, fall exposition, CP. i. 946-949 b \ prepara- tions for trial, CP. i. 950-959/ see Trial; the trial, CP, i. 959 3-982 a, see Trial ; the respective provinces of court and, full exposition, CP. i. 982 6-989 b (namely, as to questions of law, CP, i. 983-988 ; as to questions of fact, OP. i. 989-989 b) ; the, during trial and to ver- dict, /mH cayosfWon, OP. 1.990-1000; ver- dict of the, and its rendition, CP, i. 1001- 1016, see Verdict; ancient law con- cerning, CP, i. 362 et seq. ; oath of the, CP. i. 983 ; on joint indictment against several, CP, i. 1027-1032 ; what of, to appear of record, CP. i. 1357 ; old form of record, DF, 1070. Petit Larceny (see Grand Larceny, Larceny), what is, OL. i. 679; grade and punishment, OL. i. 679, 935 ; no ac- cessories, CL, i. 680, CPi ii. 2 ; whipping for, CL, i. 942 ; whether disqualifies wit- nes.s, CL. i. 974, 975 ; grand and, distin- guished, CL, ii. 884 ; breaking from im- prisonment for, OL. ii. 1084 ; conviction of, on indictment for grand, CP. ii. 716, 769 ; " feloniously " in indictment, OP. ii. 737. Petit Treason (see Treason), what, not in this country, OL, i. 611, 681, 779; as to accessories in, OL. i. 666. Petition to Legislature, whether libel by, OL. ii. 915. Petition of Review, OP, i. 1401. Petition for "Writ of Error, DP. 1085. Petty Chapman (see Peddler, &c.), meaning, SO. 210. Pheasants, whether subjects of larceny, OL. ii. 773, 779. Photograph in evidence, OP, i. 1097, SO. 610. Photography, forgery by, OL, ii. 572. Phrases (see Words), old and inadequate in description of murder, CL, ii. 735 ; re- enacted in statute, how interpreted, SO. 97. Physic given in sport, causing death, CL. ii. 693. 80T PIR GENERAL INDEX TO THE SERIES. PLA Physical Elements, producing death by, OL. i. 556, 557. Physical Force (see Assault, Force, Mental Force), defined, CL, i. 546 ; all personal injuries produced by, indictable, CL. i. 546, 556 ; setting in action, same as party's direct action, OL, ii. 94 ; directed against property rights, CL. i. 574 et seq. ; not essential in kidnapping, CL, ii. 752. Physical Touch, whether essential to assault, OL. ii. 26, battery, 72 ; arrest, CP. i. 157. Physician (see Abortion, Malprac- tice, Medical Practice, Practising Medicine), when indictable for homicide of patient, OL, i. 217, 314, ii. 664, 685 ; for malpractice, OL. i. 558, 896, ii. 162; having carnal intercourse with patient, OLi ii. 36 ; administering and prescribing liquor, SO. 1013, 1019, 1020; practising medicine unlicensed, SO. 1095, DP. 999 ; libelling, by calling him quack, CP. ii. 804. Picking Pocket, Pickpocket (see Larceny, Larceny from Person, Person, Pocket), whether must be anything in pocket, OL, i. 741, 743, 744 ; how indictment for, DP. 612. Pictures (see Photographs), how in- dictment for libel by, DP. 628-631, and see Libel and Slander. Pig (see Hog, Swine) is "cattle," SO. 212, 442 ; whether "hog," SO, 247, note. " Pigeon " descriptive of thing stolen, CP. ii. 706. Pigeon-hole is game of chance, SO, 863. Pigeons, when subjects of larceny, CL, ii. 773, 779. Piggery, Pigsty, when an out-house, SO, 291 ; may be nuisance, OL, i. 1143 ; in- dictment, DP. 812. Pillory (see Punishment), standing in, as punishment, OL, i. 942, 943 ; com- pared with other punishments, SO. 185; statute changing, to imprisonment, SO. 185. Pilot, manslaughter by, OL, i. 303 a, note. Piracy (see High Seas, Jdrisdiotion, Oc-Exn), full exposition, OL, ii. 1057-1063, DP, 878, 879 ; common right of nations to punish, CL, i. 120; power of Congress to punish, OL, i. 1 83 ; capture through mistake of supposed piratical vessel, OL, i. 306 ; conviction in one country bars prosecution in another, CL, i. 985. 808 Piratical Aggressions, when forfeiture follows, OL. i. 826. Pistareen, CL. ii. 296. Pistol (see Arms, Carrying Weapons, Gun, Loaded Arms, Revolvers), pointing, &c., in assault, CL. ii. 28, 31, 32, 60; in homicide, CL, ii. 656 b, 741, note ; in duel, CL, ii. 313 ; allegation for assault with intent, &c., OP. ii. 79; a " dangerous weapon," SO. 320 ; " offen- sive weapon," SO. 321 ; "loaded arms," SO. 322 ; broken lock, &c., SO, 791 ; alle- gation of loaded, SO. 795 ; proof of car- rying about defendant's person, SO. 800 b. Place (see County, Keeping Place, Locality, Public, Special, Time AND, Venue), goods under protection of, CL. ii. 902 ; of the indictment and trial, /uZ/ exposition, CP. i. 45-67 ; changed by change of venue, full exposition, CP. i. 68-76 ; allegation and proof of, full expo- sition, CP, i. 360-385, 407-414 ; descrip- tion of the, in search-warrant, CP, i. 244, 245 ; effect of laying, descriptively, CP. i. 573 ; special verdict as to the, CP. i. 1006 ; the, for execution of sentence, OP. i. 1338 ; of holding court, how in record, OP. i. 1351 ; allegation of, in burglary, ■ CP, ii. 135, 136 ; in disturbing meetings, CP, ii. 286 a ; in homicide, CP. ii. 534 ; in nuisance, CP. ii. 866 ; law of, for right and remedy, SO. 175 ; of voting, how de- termined, SO, 811 ; alleging, in illegal voting, SO, 834 ; word, in gaming stat- ute, SO. 878 ; how allege and prove the, of gaming, SO. 902-907 ; whether license specify, SO. 1003 ; how allege the, of overt act in conspiracy, DP. 286, note. Place of Abode fsee Domicil, Resi- dence), how allege defendant's, DP. 74, 75. Place of Buried, how describe, in disin- terring, DP. 957, note. And see Sepul- ture. Place of Gaming (see Gaming), offence of keeping, SO. 852 ; gaming as depend- ing on the, SO, 878 ; how allege, SO. 902-904, prove, 911 ; whether question of law or fact, SO. 907. "Place of Public Resort," meaning, SO, 1011. Place and Time, statutes as to, extend to after-created offences, SO. 126. Place of Trial (see Locality, Place) for offences committed out of country, DP. 879, note. PLE GENERAL INDEX TO THE SERIES. POI Places of Amusement regulated by- statutes, SO. 1096, and see Theatkb. Plaintiffs (see Clean Hands, Depend- ants, Pabties), must be free from blame, OL, i. 11, 267; and entitled to complain, OL. i. 11 ; in criminal causes, State, no confessions by, OP. i. 1082. Plank Roads, OL. ii. 1270. Plans Exhibited (see Drawings) dur- ing passage of bill, weight of, in inter- pretation, SOt 77, note. "Plantation," meaning, SO, 300, 1011. Playing Cards. See Cards. Plea, Plead, meaning, OL. i. 1014 ; with- out, no bar of second prosecution, OL, i. 1029 a. Plea, Pleas (see Attorney, Counsel, Jeopardy Repeated, Oral, Plead- ing Over, Withdrawing), withdraw- ing and substituting, OP. i. 124 ; whether by attorney, OP. i. 268 ; at arraignment, OP. i. 729, 730 ; no valid trial without, OP. i. 733 ; prisoner refusing to render, CP. i. 733 a ; the several, enumerated, and their import, OP. i. 734-743 ; order of presenting the, OP. i. 744 et seq. ; whether may be double, OP. i. 748-751 ; how tried, OP. i. 752-756 ; some of the, considered, OP. i. 787-804 ; contrary to record, bad, OP. i. 885 ; by joint defend- ants, OP. i. 1025 ; to assignment of errors, OP, i. 1371. Flea in Abatement (see Abatement, Abatement of Proceedings), full, ex- position, OP. i. 738-740, 791-793, DP, 1036-1039; to be presented at arraign- ment, OP. i. 730 ; pleading over after, OP. i. 753 et seq. ; after plea in bar, OP. i. 756 ; after demurrer, OP. i. 782-786 ; whether may be oral, OP. i. 789, 790 ; for misdoings of grand jury, OP. i. 880-885 ; verification, OP. i. 757 ; burden of proof on, OP. i. 1048; in particular cases, — addition, CP. i. 674, note, 676 ; name of defendant, OP. i. 677, 791 ; indorse- ment, OP. i, 691, and see other heads. Plea in Bar, full exposition, CP. i. 742, 805-848, DP. 1042-1047; not required for statute of limitations, SO. 264, DP. 1046, note. Plea Denying Identity, CP. i. 1385, DP. 898, note. Plea of Former Acquittal, Convic- tion, or Jeopardy (see Jeopardy Repeated), full exposition, CP. i. 742, 805-831, DP. 1042-1044. Plea of Greneral Issue (see General Issue), /ui/ exposition, OP. i. 743, 794 u- 801, DP. 1048-1050. Plea of Guilty, /«// exposition, OP. i. 729, 746, 788, 794 a-798 ; withdrawing, OP, i. 798, DP. 1035 ; oral, CP. i. 788. Plea to Jurisdiction, /uii exposition, CP. i. 736, 794, DP. 1033, io34, and see the places cited to the sub-title, DP. 1033. Plea of Misnomer (see Misnomer), full exposition, OP. i. 740, 791, 792. Plea of Nolo Contendere (see Nolo Contendere),/«^Z exposition, OP. i. 802- 804, DP. 1051, 1052. Plea of Not Guilty (see Not Guilty), full exposition, OP. i. 729, 743, 746, 788- 790, 794a-801, DP, 1048-1050. Plea of Pardon (see Vxvivos}, full expo- sition, OP. i. 742, 832-848, DP. 1045. Plea of Pregnancy (see Pregnancy), full exposition, OP. i. 1322-1324. Plea puis Darrein Continuance as to former jeopardy, CP. i. 822-824. Plea of Statute of Limitations, DP. 1046, note, and see SO. 264. Pleading, Pleadings (see Indictment, Oral Pleas, Procedure, &c.), mean- ing, OP. i. 2 ; waiver of rights in, OP. i. 123, 124; civil and criminal, compared, OP. i. 320, 321 ; as against accessory, OP. ii. 2-1 1 ; subsequent to indictment, full exposition, OP. i. 728-848, DP. 1030-1065, 1074-1091 ; subsequent to the pleas,/MS exposition, DP, 1053-1060. Pleading Over, after plea disposed of, OP. i. 753-755 ; after demurrer, OP. i. 781-786. Pleading Subsequent to Pleas, forms of, DP. 1053-1060. Pleas, not part of " trial," SO. 347 a ; not before named, DP, 1046, 1047. Pleasure Grounds. See Public Plea- sure Grounds. Plural, when indictment conclude in the, CP. i. 605 ; in statute, includes singular, SO. 213. Poaching (see Game), construction of statute against, aiders at fact, SO. 88 ; limitations, SO. 257, 261. Pocket-book, larceny of, CL. ii. 868, note, 879, 882, note. Pocket-picking (see Picking Pock- et), attempted larceny by, CL. i. 741- 745 ; indictment, OP. ii. 89, DP. 612. Poison, Poisoning (see Abortion, Ad- ministering Poison, Assault, At- 809 POL GENERAL INDEX TO THE SERIES. POS TEMPT, Homicide), meaning in statute, SO. 747 ; statute against, construed, SO. 225 ; who principal in, OL. i. 651 ; at- tempt, sabstarice not poisonous, CL. i. 756 ; whether must be capable of, OL. i. 758; how indictment for homicide by, CP. ii. 514, 529, 553-556, DF. 533; ad- ministering, with intent to Icill, CP. ii. 644-650; assault with, DF. 213; proof of, by experts, CP. ii. 631. Poisoning Animals (see Animals, Ma- licious Mischief), indictment for, DF. 71.3, 714. Poisoning Well, indictment for, DF. 766. Polecats not subjects of larceny, OL. ii. 773. Police Constable, forgery of recom- mendation to be, CL. ii. 529, 534, note. Police OfBcer (see Arrest, Consta- ble, Prosecutok), assaults on, CL. ii. 26 a ; instituting proceedings, OP. i. 33, 285 ; arresting without warrant, OP. i. 181 et seq. Police Power, defined, SO. 990 ; legisla- ture not bargain away, SO. 957, 992 a. Policeman, whether an "officer," SO. 271 a. Policy of Law (see Legislative Pol- icy, Public Policy), how construe statutes contravening, SO. 119, 189 c; in what sense all laws are within, SO. 189 a; statutes in accord with, how construed, SO. 189 (f; contracts against, void, SC. 138 a, 254 ; lotteries are against, SO. 960. Political Department of government expounds treaties, SC. 13 a, 14. Political Libels, law of, OL. ii. 937, 938. Political Meeting, riotous conduct at, CL. ii. 937, note, and see Disturbing Meetings. Political Prisoner (see Prisoner, Prisoner of War), methiing, OL. i. 64, note. Political Slanders, OL. i. 478. FolUng Jury, doctrine and practice of, CP. i. 1002, 1003. Polls (see Challenging), challenge to the, CP, i. 876 et seq., 932 a. Polygamy, full exposition, SO, 577-613, DF. 880-883 ; whether indictable, OL. i. 502 ; mistake of fact in, CL, i. 303 a, note ; locality of indictment, OP. i. 62, note ; negativing proviso in statute, CP. i. 638 ; husband or wife as witness in, CP. i. 1 153 ; statutory jurisdiction in, SC. 810 112, 586-588; what county, SO. 112, 599 ; divorce exception construed, SO. 229, 583 ; limitations statute, SC. 260 a ; word compared with " bigamy," SC. 577. Pond (see Public Ponds), whether lar- ceny of fish in, CL. ii. 775. * Poor, punishable misconduct to, CP. i. 494 ; statutes for support, bind State, SC. 103 ; the, injured by labor conspiracies, DF. 314, 315; assistance to, in lawsuits, OL. ii. 128. Poor Prisoner, discharge of, from fine, OP. i. 1306. "Pop," what and whether judicially known, SC. 1 006 a. Popular Meaning (see Meaning), when given statutory words, SC. 100-102 ; in strict interpretation, SC. 204. Population and growth of, how law pro- tects, CL. i. 509-513, 515, 516. Portable Machine for making cloth not a "tool," SC. 319. Portrait. See Photograph. Ports (see Jurisdiction, Maritime Jurisdiction), crimes committed in vessels within foreign, OL, i. 117. Possession, Possessing (see Attempt, Coin, Counterfeiting, Custody, Forgery, Having, Implements, Lar- ceny, Eeceiving, Stolen Goods, Tools), with intent to commit crime, whether punishable, is evidence of pro- curing, OL. i. 204 ; distinction between, and custody, OL. ii. 824 et seq. ; one may have, by another, CL. ii. 826 ; fictitious instrument, CP. i. 523 ; counterfeits, OP. i. 627, note, DF. 341 ; other instances jn proof of, CP. i. 1126, 1127; counterfeit coin with intent, CP. ii. 265-268 ; instru- ments of counterfeiting, CP. ii. 269, 270, DF. 342 ; having forged bank-bills with in- tent, CP. ii 461-169, DF. 467 ; as evidence of forgery, in what county, OP. ii. 479 ; of stolen goods, as evidence of larceny, CP, ii. 739-747, burglary, robbery, mur- der, 152 747, receiving, 989; of thing, not " receiving it," SC. 208, note; taking out of lawful, in seduction, SO. 636. Post, nuisance of, in way, CL. ii. 1277. Post Letter (see Embezzlement, Let- ter Carrier), meaning, CL. ii. 785, 904, note ; larceny from, CL, ii. 802 ; lo- cality of crime committed by means of, CP. i. 61. Post-ofSce, what is, CL. ii. 904, note; larcenies by employees, CP. ii. 776 a. j?RE GENERAL INDEX TO THE SERIES. PEE Post-ofBoe Clerk delivering letter to wrong person, OL. ii. 812. Post Route, how in indictment for steal- ing letter, OP. i. 486. Postal Offences (see Lbttee Carrier, Mail, Robbing Mjlil), full exposition, OL, ii. 904, note, DF. 884-888, and see OL, ii. 802, OP, ii. 776 a, SO, 823. Postdated Check may be " order," SO, 328. Postmaster detaining bankrupt's letters, SO, 823. " Pot " a " weapon drawn," SO, 323. Potomac River, rights of Maryland and Virginia in, OL, i. 150. Pound Breach, offence of, DF, 172-175. Poverty as evidence in larceny, OP, ii. 748 ; effect of, on fine, OP, i. 1306. Powder Magazine (see Nuisance), when indictable, OL, i. 1098; how, DF, 788, note. PoTver (see Discrbtionaet, Doubtful, Judicial Discretion, New Powers), false pretence of, OL, ii. 429 a ; under new law, may be derived from old law, SO, 87 ; statute creating, mandatory, SO, 256. PoTver of Attorney, deed, OL, ii. 567. Powers, what reserved by constitution to States, OL, i. 156. Practical Hints for drawing indictment, DP, 28-36. Practice (see Procedure, Usage), meaning, OP. i. 2, 3 ; criminal, changed in modern times, OP, i. 13, 322 ; found- ed on interpretation, adhering to, SO, ■ 104 a. Practising Medicine (see Medical Practice, Physician), statute against, construed, SO. 238 ; regulating, SO, 988 a, 1095, DF, 999. Prairie, arson of, OP, ii. 36, note. Prayer for Process in information, DF. 69.. Preamble of Statute, meaning, OP. i. 634 ; full exposition, SO. 48-51 ; recital of, in pleading private statute, SO. 399 ; to Black Act, SO. 434, note; looking into the, for meaning of statute, SO. 82 ; same in strict interpretation as in liberal, SO. 200. Precedence of Laws, explained, SO. H-17 a; proving, in statutes bearing same date, SO. 29. Precedence of Provisions in statute, full exposition, SO. 62-fi5. Precedents (see Books of Forms, Forms), OL.. i. 19, 303 a, note ; follow- ing the, OP. i. 23, 336.; concerning the, and their authority, DF. 2-8. Precept (see Process), non-return of, CL. ii. 978 ; for execution of sentence, OP. i. 1302, 1336, 1337; producing, io justification of officer, OP. ii. 892 ; in election fraud, whether set out the, SO. 832-834. Precision of Language, how far es- sential in indictment, OP. i. 340-359, 520. Predisposition as evidence in rape, OP. ii. 970. Pregnancy (see Abortion, Plea of Pregnancy), at what stage of, abortion indictable, SO. 744, 746 ; whether must be alleged in abortion, DF. 142, note; proof of, by experts, OP. ii. 631 ; pro- ceedings at sentence of pregnant female, OP. i. 1322-1324. "Pregnant with Child," whether fcBtus alive, SO. 746. Prejudice of Jurors, incompetency from, OP. i. 901, 903, 908-910, 916-918." Preliminary Examination (see Bind- ing Over), whether necessary, OP. i. 239 a ; procedure as to, OP. i. 225-239. "Premeditated Design" in statutes against mayhem, OL. ii. 1006. Premeditation as showing malice in homicide, CL. ii. 677. Premises, meaning, SO. 201, note, 1011 ; may include house, OP. i. 373, note; how describe, in forcible entry, OP. ii. 375, 381,382; in nuisance, OP. ii. 866; per- mitting, to be used for gaming, SO. 852 ; in law of gaming, SO. 878 ; in liquor selling, SO. 1011, 1013, 1065, note; sell- ing liquor to be drank on the, SO. 1060- 1063, DF. ^0 ; jury viewing the, burned, OP. ii. 52, see View. Preparation to commit offence, CL. i. 763, 764. Preparations for Defence, suggestions as to, DF. 37-41. Preparations for Trial. See Trial. Prepensed, See Aforethought. Preponderance of Evidence (see Pre- sumption), when the rule in criminal causes, OP. i. 1095. Presence (see Personal Presence), taking from the, in robbery, CL.ii. 1178; in one locality, and act in another, OP. i. 53; allegation of, against principal of 811 PRE GENERAL INDEX TO THE SERIES. PEI second degree, OP. ii. 6; snperfluous averment of, in forcible trespass, OP. ii. 395. Presence in Court, defendant's, /ufl ex- position, CP. i. 265-277 ; how appear in record, CP. i. 1353; at assignment of errors, CP. i. 1371, note. Present See Being Present. " Present " in caption, &c., DF. 58, note, CP, i. 665, note, 666. Presentment as distinguished from in- dictment, explained, CP. i. 131,136-140; by grand jury, whether commencement of prosecution, SO. 261. President (see Paedon) power of, as to martial law, CL. i. 50, 59-62, 67, 68; when proclamation of, takes effect, SO. 29, note. Press, See Libel and Slandee, Lib- EETT OF Speech, Obscene Libel, PnBLISHEE. "Presume to be Seller," meaning, SC, 1017. Presumption, Presumptions (see BUEDEN OP PeOOP, EVIDENCE, Ig- NOEANOE OP Law, Innocence, Knowl- edge OF Law, Motive, Statutoet Pkesumptioks), full exposition, CP, i. 1096-1131 ; as to " malice aforethought," CL, ii. 673 a, 673 6 ; as to jurisdiction of court, CP, i. 315; not affected by alibi, CP, i. 1066 ; all evidence rests in, CP, i. 1073 ; in favor of record, CP, i. 1356 ; in forgery, instrument genuine, OP, ii. 432 ; as to county in forgery, OP, ii. 476 ; how in homicide, OP, ii. 598-608 ; insane or not, CP, ii. 669-675 ; from possession of stolen goods, OP. ii. 152, 739-747, 989; of malice to owner in malicious mis- chief, SO, 437 ; in proof of marriage, SO, 607-613; as to domicil, SO, 842; as to license to do act, SO, 1051, 1052. Presumption of Chastity, effect of the, SO, 648. Presumption of Life in polygamy, SO, 611. Presumption of Payment (see Pay- ment) not created against State by lapse of time, SC, 103. "Pretence," meaning, OL, ii. 416. Pretences, False. See Cbeats, False Peetences. "Pretend," in indictment, substitute for " represent" in statute, CP, ii. 180. Pretended Titles (see Champeett AND Maintenance, Fraudulent Con- 812 vetances. Title), buying and selling, full exposition, OL, ii. 136-140. Prevent Voting (see Election Of- fences), how indictment for attempt to, DF, 392. Previous Attempts, presumptions from,CP.i. 1110, 1126,1127, 80,680-682, 684. "Previous Chaste Character," in statute against seduction, SC, 639 ; in- dictment, SO, 647, 648, DF. 947; evi- dence, SO, 648. Previous Conviction (see Jeopaedt Repeated, Plea op Foemee), allega- tion of a, DF. 92-97. Previous Malice, drunkenness as to, OL, i. 414. Previous OfiTence (see Offence Re- peated, Second Offence), how allege, full exposition, DF. 91-97. Price, whether and when indictment allege, OP, i. 514, SO. 1040, DF, 648, note, for further instances see Value. Prices, conspiracies to affect, CL, ii. 209, 230-233, DF. 306, 307, 310. Prima Facie Case, indictment to show, and need not show more, OP, i. 77 et seq., 32:5, 519, 637, DF, 96, note, 194, note, 284 ; sufficient for finding indictment, CP, i. 865 ; in proof at trial, CP. i. 1050. Primary Facts, indictment to aver the, OF. i. 331. Principal (see Abetting, Accessoev, Aidee at Fact, Second Degree), full exposition, OL, i. 644-659, CP, ii. 3, 5- 6 a, 14, 59, DF, 113-115, 119-122; who is a, CL, i. 604, 675, 676 ; may be also accessory, OL, i. 664 ; one indicted as, not convicted as accessory, OL, i. 803 ; in child-murder, SC, 775; how in may- hem, CP, ii. 859. Principal and Accessory (see Acces- soey), full exposition, OL, i. 646-654, 660-680, 692-700 a, OP, ii. 3-11, DF. 113- 122 ; distinction of, CL, i. 604 ; extends to statutory felony, SC, 139, 142, 145; stat ute not presumed to take away distinc- tion, SO, 142, but particular words or special subject may, 145. Principal and Agent (see Agent, Clerk, Mabtee, Servant), in general under criminal law, CL, i. 219, 220, 892; one employing another to commit crime, OL, i. 631 ; agent varying from princi- pal's orders, OL. i. 636-641 ; both maj FBI GENERAL INDEX TO THE SEEIE3. PR! be guilty of same offence, SO. 1027 ; in liquor selling, BC. 1024, 1027, 1049. Principal of Second Degree (see AiDEK AT Fact, Second Degree), how indictment against, DF. 113, 115; in arson, DF. 190 ; in burglary, DF. 256; and for the rest see Principal. Principles, leading, of criminal proced- ure, CP. i. 45-154. Print. See Libel and Slander, Ob- scene Libel, Press, Publisher. Printed Blanks for indictment, impor- tance of, DF. 51 ; indorsements on, DF. 70-72. Printed Sheets, how describe, in indict- ment for larceny, DF. 593, note. Printing, matter in, may be deemed a writing, CL. ii. 527 ; sufficient in indict- ment, OP. i. 337. Printing-press not a " tool," SO. 319. Prior Conviction (see Conviction, Jeopardy), in plea of, how allege sec- ond, DF. 93, 95 ; for assault, record of, in homicide, CP. ii. 635. Prior Crime, in evidence of subsequent, OP. i. 1120-1129; evidence of, to dis- credit witness, OP. i. 1185. Prior Interpretation (see Stare De- cisis) from another State or country, SO. 97. Prior Lavir (see Common Law, Dero- gation), statute not take away, OL. i. 270, SO. 155 ; considered in construing statute, SO. 4-7, 75, 82, 134; legislature presumed to know, SO. 75 ; their intent derived from, SO. 87 ; effect of custom on, SO. 150; not inconsistent with void statute, SO. 152 ; repeal of, by afBrm- ative statute, SO. 154, 160, and see Kepeal ; statutes in derogation of, construed strictly, SO. 119, 155, 189 a, 193. Prior Malice as evidence in homicide, OF. ii. 629. Prior Ofifence. See Offence Repeat- ed, Previous Offence. Prior Proceedings, evidence of absent witness on, OP. i. 1195. Prior Threats, evidence of, in homicide, OF. ii. 629. Priority of Acta may be shown when, SO. 29. Prison (see Jail), when a dwelling-house, OL. ii. 17, note; what is, OL. ii. 1077, CP. i. 1338; sentence to, OP. i. 1338; man- agement of, CP. i 1339; confining in one, on a sentence to another, OP. i. 1338. Prison Breach, Rescue, Bscape (see Breaking, Escape, Rescue), full ex- position, OL. ii. 1064-1106, CP. ii. 940- 946, DF. 889-898 ; breaking prison in- dictable, OL. i. 466 ; wife assisting hus- band, OL, i. 359 ; whether assisting makes accessory after, OL. i. 695-698 ; mittimus insufficient, OP. i. 91. And see the references at tlie title heading, DF. 889. Prison Keeper may retake escaped pris- oner, CP, i. 1383. Prisoner (see Arrest, Continuance, Counsel, Political Prisoner), help- ing, to escape, CL. i. 693 ; jailer confin- ing, in unwliolesome room, OL. i. 328, ii. 687 ; with infected person, OL. ii. 687 ; rescuing, from private person, CL. ii. 1091 ; departing from prison with keep- er's consent, CL, ii. 1104; not manacled, CP. i. 955 ; what information indictment communicate to, OP. i. 017-531 ; presence, OP. i. 265-277, see Presence in Court ; arraignment of, OP. i. 728-733 b, see Ar- raignment ; custody of, during trial, OP. i. 952 a ; right of, to a speedy trial, OF, i. 951 e, 951/; position of, in court room at trial, CS, i. 952-956 ; escape of, from custody, OP, i. 1382-1386. Prisoner at Large (see Escape, Re- arrest), steps for sending back, to prison, OP, i. 1382-1386, DF, 898, note. Prisoner of War (see Habeas Corpus, Political Prisoner, State Prison- er), meaning, CL, i. 63, note, 64, note ; habeas corpus for release of, OL, i. 63 ; supplying, with unwholesome food, CL, i. 484, ii. 162. Prisoner's Guilt, opinion on, whether disqualify juror, CP, i. 908-910. Private Boarding-house not an " inn," SO, 297. Private Citizen (see Private Per- son), acting as officer, OL, i. 468, 587, OP, i. 1130; when may break and enter another's house, CP, i. 197. Private Corporations (see Charter, Corporation, Incorporation), char- ters of, are private statutes, SO, 42 d. Private Counsel (see Counsel for Defendant, Prosecuting Officer, Special Counsel), assisting public, in prosecution, OP, i. 281-284, 861 ; before inferior courts, OP, i. 285, 286. 813 PEI GENERAL INDEX TO THE SEEIES. PRO Private Duty imposed by statute, vio- lating, SO. 138. Private DTwelling-house, whether " public place," SO, 298. Private Hardships, statutes construed to avoid, SO. 82. Private Injuries (see Consent, Pki- VATE Wrongs), how far indictable, _/wK exposition, CL. i. 544-593. Private Interests, interpretation to avoid impairing, SO. 82, 90, 93 ; statutes creat- ing, yet silent as to remedy, SO. 250 a. Private Land, interpretation of statutes taking, for public use, SO. 119. Private Opinions (see Judge, Opin- ions OF Legislators, Personal Views) of judges not influence inter- pretation of statute, SO. 235. Private Person, Private Persons (see Private Citizen, Prosecutor), in- stigating criminal proceedings, OP. i. 33, 141, note, 143 ; right of, to arrest, OP. i. 164-172, 1383, and see Arrest ; re- quiring officer to arrest, OP. i. 181, 182; how dispose of arrested person, OP. i. 213 ; various powers of, as to prosecuting for offences, CP. i. 285, 863, 962, 963; confessions to, OP. i. 1237, 1238 ; escape suffered by, OL, ii. 1101; libel on, see Libel and Slander ; conspiracies to injure, see Conspiracy. Private Property (see Defence, Prop- erty), resisting aggression on, OP. i. 201 ; by-law cannot authorize destruc- tion of, SO. 21 ; statute take away vested, SO. 40, see Vested Eights. Private Prosecution, Private Pros- ecutor (see Private Person), CP. i. 278, 690, 691. Private Rights (see Vested Rights), statutes taking away, how construed, SO. 189 c ; procedure on statutes creating, SO, 250 a ; statutes creating, mandatory, SO. 255. Private Road. See Private Way. Private Satisfaction (see Compound- ing), when person injured by crime may take, CL. i. 713 ; agreement to forbear prosecution, OL, i. 713, 714. Private School, disturbing, CL. ii. 306, 307. Private Statute (see Public Stat- ute), defined, SO. 42 a, 42 c, 42 d, 113 ; whether judicial knowledge of, SO. 37 ; effect of, on fraud, SO. 38; of recitations in preamble of, SO, 50 ; how interpreted, 814 SO, 113; repeal of, SO, 160, note; recog- nized by public statute, is public, SO. 402 ; forgery may be committed of, CL, ii. 529 ; indictment and proceedings on, CP, i. 609, SO. 394-402, DP. 132. Private Suit, obstructing, is a crime, CL. i. 467. Private Tort, civil action only will lie for, CL. i. 247. Private Way (see Wat), not indictable to obstruct, CL. i. 245, ii, 1266. Private Writings interpreted similarly to statutes, SO. 4, 77. Private Wrongs (see Private Inju- ries), indictability of, CL. i. 250-253. Privateer (see Piracy), depredating on wrong nation, CL, i. 131 ; of unrecog- nized belligerent, OL. iL 1057, 1058, note, 1059. "Privately," meaning, CL. ii. 896, SO. 222, 233. Privileged from Arrest (see Legisla- tors, Members of Congress), foreign embassadors, &c., OP, i. 207 a. Privileged Communications as be- tween client and counsel, CL. i. 895 ; husband and wife, OP. i. 1151-1155; in law of libel, CL. ii. 914. Privileged Publications. See Libel and Slander. " Privily " in larceny irom person, CL, ii. 897. Privy (see Out-buildings, Out-house), is parcel of dwelling-house, SO, 278, 286 ; whether "public place" or "out-house," SO, 298, note. Privy Councillor, attempt to bribe, CL, ii. 85, note, 86 ; laying violent hands on, CL, ii. 1209. Privy Seal, forgery of, CL, ii. 531. Prize Concert is a lottery, SO. 955. Prize-fight, Prize-fighting (see Af- fray, Assault, Fighting), /u/i exposi- tion, DP, 899-902, and see OL, i. 260, note, 535, 632, ii. 35, 1185, CP, ii. 24, 61, DP, 222; all present countenancing, indictable, OL, i. 632, 658, ii. 35, DP. 901. Probable Cause, in law of arrest, CP. i. 181, 182, 205 ; for searching prisoner, CP. i. 21 0, 21 1 ; for retaining goods taken on search-warrant, CP, i. 218 ; for issuing search-warrant, CP, i. 240, 242 ; in arrest of fugitives from justice, CP. i. 223 a; required by committing magistrate and grand jury, OP, i. 233, 866, 867. PRO GENERAL INDEX TO THE SERIES. PRO Probable Consequences of act, pre- sumed intended, OP. i. UOO, ii. 97. Probable Guilt on application for bail, OP. i. 257, 260, see Probable Cause. Procedure (see Coukt, -Judicial Pro- ceedings, Practice, Remedy, SuMt MART Procedure), of United States courts, how regulated, OL. i. 194 ; our, and English, distinguished, OL. i. 270 ; may be changed by legislation, OL. i. 280 ; collateral effects of changes in, OL. i. 804, 806, 807 ; meaning, OP. i. 2, 3 ; in general of the, OP. i. 4-27 ; outline of the, in a criminal cause, CP. i. 28-44 ; lead- ing principles of criminal, CP. i. 4.^-154 ; must follow law's forms, OP. i. 89-94; statutes regulating, retrospective, SO. 84 ; and bind State, SO. 103 ; favored by con- struction, SO. 114; construed together to avoid repeal, SO. 156 ; pertain to rem- edy, how change, SO. 176; effect of re- peal of statute on, SO. 177; for rights reserved on repeal, SO. 179 ; statute omitting to provide, SO. 249 6-253 ; same on written law as unwritten, SO. 352 ; in gaming, SO. 913. Proceedings (see Legislative Pro- ceedings, Pendency, Prosecution), pending in one court bar same in an- other, SO. 164, qualified, see Pendency ; to conform to law at time carried on, SO. 176, 177; ended by repeal of statute, SO. 177, 177 a ; under repealed statute, how revived or validated, SO. 1 80 ; adjudged erroneous, limitations statute, SO. 262. Proceedings in Courts (see Penden- cy), when contempt to publish, OL. ii. 259 ; when publication privileged, OL. ii. 915-917. Process (see Notice, Prayer for. Pre- cept, Service of), conspiracy to pro- cure, for oppression or private ends, OL. ii. 219 ; stealing, OL. ii. 846 ; counterfeit- ing, CL. i. 468 ; serving, on Lord's day, CP. i. 207 ; objections to, after trial, CP. i. 756, 1285 ; neglect to serve, on witness, continuance, CP. i. 951 a ; defendant's right to have compulsory, OP. i. 959 h ; as to averring, in resisting officer, CP. ii. 888; repeal of statute abating, SC. 180, note ; statute construed not to defeat, SO. 200 ; as to commencement of suit, SO. 261 ; breaking doors to serve, SO. 290, and see Breaking Doors. Process of Enactment, statutes of no effect during, SO. 28, note. "Process of Manufacture," defined, SO. 211. Processions, rights of, in way, OL. ii. 1274, note. Proclamation of President, when takes effect, SO. 29, note. Procuration, indorsing bill by, in for- gery, CL. ii. 582 ; proof of, where signa- ture is by, OP. ii. 435. Procure. See Cause and Procure. " Procure to Have " in seduction, SC, 642 a. Procurer (see Accessory, Nuisance, Principal and Accessory, Solicita- tion), defined, OP. ii. 2 ; of statutory crime, guilty as doer, OL. i. 604 ; election of methods against, CP. ii. 2 ; how in- dicted, CL. i. 685, DF. 119-121. Procuring (see Accessory, Attempt, Solicitation) dies for counterfeiting, CL, i. 435 ; women for bawdy-house, CP. ii. 117. Produce. See Inspection, Notice to Produce. Profane Swearing (see Blasphemy AND Profaneness), OL. i. 498, ii. 79, DF. 244. Profaneness, full exposition, OL, ii. 74, 79-84, CP. ii. 123-125, DF. 242-244, and for further particulars see Blasphemy AND Profaneness. Profaner of Sabbath (see Lord's Day), how indictment for being a common, DF, 662. Professional Gambler (see Gaming), how indictment for being, DF. 494, 495. Professional Usage, whether show interpretation of statute by, SC. 104, note. Profits of Offence, receiving the, is par- ticipation, SO, 135. Progress of Manufacture, what is, SO, 211. "Prohibited to States" in United States Constitution, OL. i. 157, 163. Prohibition, in criminal causes, OP. i. 1404, 1405 ; implied in statute, SC. 249 ; whether implied from penalty or forfeit- ure, SC. 254. Prohibitory Laws. See Liquor Keep- ing and Selling. Promise (see Contract, Marriage) is not false pretence, OL. ii. 41 9 ; influencing, OL. ii. 424 ; without consideration, no liability, CL. ii. 546 ; not adequate in 815 PEO GENERAL INDEX TO THE SERIES. PRO allegation of false pretence, OP. ii. 166; to violate a statute, not enforceable, SO. 138 a, 254. "Promise of Marriage" (see Mar- riage), seduction under, SG. 638; how indictment, SO. 646, DF. 949, 950. " Promising " reward_to voter, SO. 818. Promissory Note (see Bank-bill, Bills and Notes, Forgery, Lar- ceny, Note), defined, CL. ii. 785, 787, SO. 326, 336 ; whether subject of larceny, CL. i. 578, ii. 768, 785, SO. 345 ; whether a false token, OL. ii. 157 ; larceny of, OL. ii. 787, OP. ii. 732, 736, SO, 345, DF. 602- 604; forgery of, OP. ii. 470-472, DF. 464; "month" in, SO. 105, note; not " money," SO. 346 ; for liquor unlaw- fully sold, not valid, SO. 1030. Promissory Oath, not perjury by, OL. ii. 1026, note, 1032. Promoting Iiottery (see Lottery), how indictment for, DF. 673, 674. Proof (see Burden or Proof, Evidence, IVIeasure op Proof, Presumptions), must cover whole charge, OP. i. 127- 129, 1052 ; as to insufficient, before grand jury, OP, i. 872 ; of marriage, SO. 607- 613. Proof of Statutes, doctrine as to, SO. 37, 37 o. Proofs, indictment to conform to the, DF. 18, 22, 35. Proper Shelter for animal, not provid- ing, DF. 356. Property (see Defence, Forfeiture, Personal, Private, Public Use, Re- capture, Restitution), meaning, OL. ii- 357 a ; owner's right of disposition over, CL. i. 514, 576; injuries to, by physical force, CL, i. 574 et seq. ; by mental and moral, OL, i. 581 et seq. ; relations of, to crime, CL. i. 81 6-835 ; word, too general in allegation, CP. i. 568-570; in larceny, OP. ii. 699; pro- ceeding against defendant's, for fine, CP. i. 1303; what, subject toby-laws, SO. 22 ; whether word, includes real estate, SO, 102 ; how construe statutes taking away, SO. 193, for public use, 193, note; legis- lation may regulate, for public good, SO. 793, 995, 1130. Prophecies, whether false and pretended, indictable, OL, i. 497. Prosecute (see Failure to Prose- cute), agreeing not to, OL. i. 694; con- spiracy to, CP, ii. 234. 816 Prosecuting Attorney, whether " oflS- cer," SO, 271 a; words, instead of " Dis- trict Attorney," CP, i. 703. Prosecuting Officer (see Attorney, Counsel for Defendant, Nolle Prosequi, Private Counsel, Special Counsel, Solicitor-General), fiilt exposition, CP, i. 278-294 ; qualifications, CP, i. 26 ; of what county, after change of venue, CP, i. 74; when proceed by in- formation, CP, i. 141-144; whether be counsel for defendant, OP, i. 300-302 ; attends grand jury, draws indictments, &c., OP. i. 696; indorsing indictment, CP, i. 702-704 ; move to quash, nolle prosequi, CP. i. 760, 1387-1396; rela- tions to grand jury, OP. i. 861, 863; rights as to order of trial, continuance, &c., CP. i. 950 A-951 a ; trial where there is no, CP. i. 962 ; where there is, CP, i. 964 ; whether produce all witnesses present, CP, i. 966 c ; admitting accom- plices, CP, i. 1161 ; fee taxed with costs, CP. i. 1319 ; no injunction against, CP. i. 1414 ; should make his allegations full, DF, 16, 17, 547 ; form for indorsing name of, on indictment, DF. 72 ; should learn the criminal law, DF, 313; and adminis- ter it wisely and well, DF. 314, 315 ; im- partially pursue offenders against the elections, DF, 399 ; should practise fair- ness toward defendant, DF. 547. Prosecution (see Indictment, Infor- mation), meaning, SO, 261 ; agreements to forbear, CL, i. 714; in second juris- diction, CL. i. 989 ; different methods of, full exposition, CP, i. 129 a-154, 318-727 ; what is commencement of, SO. 261, and further as to statute of limitations, 262 ; authorizing criminal, after limitations bar, SO, 265-267. " Prosecution Pending," meaning, SO, 261, note. Prosecutions (see Action, Jeopardy, Proceedings, Suit, Threat to In- dict), several, for one crime, OL, i. 1067-1069. Prosecutor (see Constable, Police Officer, Private Person), liabilities and privileges of, CP. i. 691, 692 ; apply- ing to quash, CP, i. 760 ; what connec- tion with, disqualifies juror, CP, i. 919 ; right to challenge juror, CP, i. 933 ; not a party, CP, i. 1082 ; costs to and from, OP. i. 1314 ; confessions to, CP. i. 1233. PRO GENERAL INDEX TO THE SERIES. PUB Prosecutor's Name, indorsement of, on indictment, OP, i. 690-694, DF, 72 ; for keeping bawdy-house, CP. ii. 108. Prospective (see Retrospective), how far statutes to be interpreted as, SO. 82- 85 b. Prospective Legislation, defined, SO. 83 ; interpretation of, SO, 82-85 h. Prostitute, Prostitutes (see Pckpose OF Pkostitution), defined, SO. 641 ; meaning of word, for court, SO. 652-; conspiracy to persuade girl to become. Oil, ii. 235 ; occupying a room, not bawdy- house keeper, OP. ii. 118; house fre- quented by, evidence of bawdy-house, CP, ii. 116, 117. Prostitution (see BAWoY-HonsE) not disqualify witness, CL, i. 9?4. Protection (see Government, Individ- ual, Public Convenience, Public Education, Public Health, Public Morals, Public Order, Public Revenue, Public Safety, Public Tranquillity, Public Wealth), the, which the criminal law gives to the sev- eral Interests of society, /ull exposition, CL. i. 450-597a; forgery of a, OL, ii. 531, 541. Protection of Fish and Game. Sec Fish and Game. Protestant Dissenters. See Dissent- ers. "Provided," how allegations on statu- tory words following, OP. i. 634, 635, 639. Provisions. See Food, Noxious and Adulterated Food, Unwholesome Food. Provisions of Statutes (see Consti- tutional Provision, Part, Parts, Statutes, Unconstitutional), repug- nant, SO. 41 ; precedence of, SO, 62-65 ; dilfering, harmonized by construftion, SO, 82 ; construed together, SO, 82, 86, 87 ; restrained and extended by construc- tion, SO, 87 ; construed also with com- mon law, SO, 86-88 ; and with constitu- tion, SO, 89. Proviso (see Exception), when nega- tive, in Indictment, OP. i. 632 et seq. ; how interpret, SO. 57, 65 ; in conflict with purview, SO. 65 ; liberally construed in favor of accused, SO. 226, 229 ; nega- tiving, in polygamy, SO. 605, 606; in liquor-selling, SO, 1042-1044. Provocation, killing from, 01, i. 414, and see Homicide. Provoking One to Challenge to duel, how indictment for, DF. 380, and see Duelling. Puberty (see Rape), legal age of, OL, i. 373, 554, ii. 1117,1118; essential in rape, OL, ii. 1136 ; in attempt to commit rape, OL, i. 373, 736, 746, 753. Public, meaning, OP, i. 959 ; to constitute crime, must suHei- injury, OL, i. 230, how many suffer, 243 ; act tend to injure, OL, ii. 147; how criminal law protects the, full exposition, OL, i. 450-543 ; whether token in cheat must be, CL, ii. 157, and see 161-164; indictment for conspiracies to cheat the, OP. il. 210, 243 ; to injure the, DF. 309; trials to be in, OP. i. 957- 959. Public A£rairs, libels relating to, OP, ii. 797, 798 Public Attorney. See Prosecuting Officer Public Bridges (see Way) are parcel of highway, SO. 301 ; offences against, DF. 1023. Public Building (see Building), how indictment for arson of, OP, ii. 36, DF, 183. Public Cheats, full exposition, OL, ii. 161-164. Public Convenience, offences against, full exposition, CL. i . 530-532 ; statutes to promote, construed liberally, SO, 120. Public Conveyances (see Ferry, Mu- nicipal By-laws, Railroad, Steam- boat, Vehicle), homicide from negli- ge?ice in running, OL, ii. 662 a ; driving, on Lord's day, CL. ii. 965. Public Decency. See Blasphemy AND Profaneness, Exposure of Per- son, Obscene Libel, Open Lewdness, Public Indecent Show, &c. Public Drunkard (see Drunkard, Drunkenness), when punishable, SO. 968, 973. Public Duty (see Duty), all disobe- dience of, indictable, OL, i. 239 ; same when imposed by statute, SO, 138 ; death from carelessness in, CL, ii. 667. Public Education, how regarded by criminal law, OL, i. 507, 508. Public Excitement, ground for contin- uance, OP. i. 951 b. Public Exhibitions (see Public Inde- cent Show, Public Show, &c.), when indictable, CL, i. 1145. Public Exposures. See Exposure of Person, Public Show, &c. 817 PUB GENERAL INDEX TO THE SERIES. PUB Public Forgeries, CL, ii. 531, 532) CP. ii. 420. "Public Gambling-house" (see Gam- ing, Gaming-house), in statute against gaming, SO, 878. Public Good (see Regulate), punish- ment to promote, OL. i. 210; statutes to promote, how construed, SO. 199 ; legis- lation over person and property for the, SO. 793, 995, 1130. Public Health (see Health Regula- tions, Quarantine), acts tending to injure, indictable, CL. i. 489-494. Public House (see Inn, Tavekn), mean- ing, SO. 299, 878, 1011 ; gaming in, SO. 852, 878, and see Gaming ; how allege and prove, SO. 902-907. Public Indecency (see Exposure op Person), meaning, OL. i. 35, note, 1134, SO. 717 ; the offence of, OL, i. 1134. Public Indecent Show (see Evil Shows and Exhibitions, Public Ex- hibitions, Public Show), proceedings against, CP, ii. 865. Public Injury, injury to individuals viewed as, CL. i. 231. Public Interests, statutes interpreted to avoid impairing, SO. 82. Public Justice. See Conspiracy, Ob- structing Justice, Perjury, Resist- ing Officer, &c. Public Meetings. See Disturbing Meetings. Public Morals, indictable to impair, /«K exposition, OL. i. 500-506. Public Necessity, ground for allowing search warrants, OP. i. 240 ; as to whether way is public, CL. ii. 1268 ; considered in interpretation of statutes, SO. 77. Public Nuisance. See Nuisance. Public Office, repeal of statute creating, SO, 178 a. Public OfBcer (see Officer), meaning, SO, 271 a; tax collector is, CL. ii. 349; proceedings on ofScial bond of, SO. 119 ; how allege embezzlement by, DF. 409. Public Order (see Order), punishable to violate,/!*^ exposition, CL. i. 533-543 ; unlicensed business violative of, full ex- position, SO. 1093-1097. Public Peace. See Breach op Peace, Peace, Riot. Public Place (see Place), meaning, CL. i. 1128, ii. 2, SO. 298, 878 ; affray in, CL. ii. 2, OP. ii. 16 ; riot in, DF. 929, note; gaming in, SO. 852, 878, DF. 493 ; drunk 818 in, SO. 973, DF. 375 ; lewdness in, DF. 156 ; how allege and prove, SO. 902-907, 975, DF. 375, note. Public Pleasure Grounds (see Pub- lic Squares, Wat), offences against, DF. 1024, 1025. Public Policy (see Policy of Law), regarded in statutory interpretation, SO. 82, 90 ; contracts and things contrary to, SO. 138 a, 254 ; influencing competency -of witness, CP. i. 1138. Public Ponds, offences ajrainst, DF. 1029. Public and Private, division of statutes into, SO. 42 a. Public Property (see Wat, &c.), mean- ing, and malicious mischief to, CL, ii. 986. Public Records (see Record, Regis- try Laws), forgery of, CL. i. 468, ii. 531, 5.50, 554, 55.5, 570, DF. 475, note; larceny of, CL. ii. 785. And see DF. 920- 923. Public Revenue (see Government, Revenue Laws, Tax), how of offences against, /u// exposition, CL. i. 486-488. Public Rights, statutes taking away, con- strued strictly, SO. 1 89 c ; creating, man- datory, SO. 255. Public Safety, how the criminal law protects, /«// exposition, CL. i. 530-532. Public Seals (see Stamps and Seals), forgery of, CL, ii. 530, DF. 476. Public Show (see Evil Shows and Exhibitions, Nuisance, Obscene Li- bel, Public Indecent Show), JiiU exposition, CL. i. 1145-1149, DF. 1000; indictable, CL, i. 504. Public Show^s unlicensed, CL. 1. 1147- 1149, SO. 1096, DF. 1000. Public Squares (see Public Pleasure Grounds, Way), offences against, CL. i. 531,Dt.'l024, 1025. Public Statute (see Private Stat- ute), denned and explained, SO. 42 a, 42 6 ; judicial cognizance of, SO. 29, 77 ; indictment need not recite, CP. i. 608, SO, 395 ; effect of misrecital, SO. 395, 401 ; when private statute becomes a, SO. 402. Public Stream. See Navigable Riv- ers, River, Wat. Public Street. See Street, Wat. Public Tranquillity, offences against, /«// exposition, CL. i. 533-543. Public Use (see Propeett), how stat- utes to take property for, construed, SO. 119, 193, note. PUN GENERAL INDEX TO THE SERIES. PUB Public Way, Public Ways (see High- way, Navigable Rivers, Nuisance, Private Wat, Way), jurisdiction of States and United States over, CL. i. 173, 174 ; duty of officers to keep clear, CP. i. 1 83, note ; out-buildings separated from dwelling-house by, SO. 284. Public Wealth, how far protected by the criminal law, fuU exposition, CL. i. 509, 514, 517-529. Public Worship. See Distitrbing Meetings. Public Writings, forgery of, CL. ii. 531. Public Wrongs (see Public), when private injuries are indictable as, CL. i. 232, 233 ; how construe statutes made to suppress, SO. 199. , Publication (see Court) of libel, CP. ii. 800. " Publish," meaning, CP. ii. 784 ; " show forth in evidence " not equivalent, SO. 309 ; word, in forgery indictment, DF. 460, note. Publisher (see Libel and Slander, Prkss) of newspaper, how criminally responsible for contents, CL. i. 221. " Puncheon," meanincr, CL. ii. 294. Punctuation (see Bad English), effect of, on statutory meaning, SO. 78 ; on indictment, CP. i. 354, SO. 78, note. Puniahment (see Crime, Jeopardy, Offence, Offence Repeated, Par- don, Penalty, Sentence, Whipping), full exposition, CL, i. 927-958 ; object of, CL. i. 210 ; statute increasing, unconsti- tutional, CL. i. 279 ; effect of statutes changing the, in various circumstances, SO. 166-172 ; statute creating public wrong and not providing, CL. i. 237, 238, SO. 138, 873 ; also civil injury, CL. i. 237 ; pardon annuls, CL. i. 916 ; what concerns the, must be alleged in indict- ment, various forms of this proposition, CP. i. 77-88, 98 n, 102, 5-38 542, 567, 578-.')«0, ii. 48, 177, 565, 572, SO. 166, 167, 444, 445, 464 ; charging jury as to, CP. i. 980 ; verdict where jury assess, CP. i. 1012; inseparable from law, SO. 22; how far by-laws may declare, SO. 22, 23 ; different statutes as to, construed to- gether, SO. 127 ; not two repugrnant pun- ishments for one offence, SO. 158 ; offince and, separable in respect of repeal, SO. 166-174 ; changed by repusrnance to old law, SO. 168 ; statutory fine, penal action, &c., as to common law, SO. 170 ; whether more than one, for one wrong, SO. 171 ; pertains to remedy, is what law provides at time of sentence, SC. 176 ; but increas- ing the, is ex post facto, SC. 176 ; may vary with time of offence committed, SO, 183, 184; statute in mitigation of, SC. 185 ; imposing, construed strictly, SO. 193; degree of, as to interpretation of statute, SO. 199 ; some principles relating to, SC. 235 ; making heavier for second offence, SO. 240 ; providing, for common- law offence, SO. 416 ; for adultery, heavier between whites and blacks, SC. 666 a ; forfeiture of right to vote as a, SO. 809, 810 ; how indictment for second ofEence, SC 981, DF. 91-97 ; how in liquor selling, SO. 1026 ; information for increase of, after piior conviction, DF. 97. Pupil, right of teacher to chastise, CL. i. 886. Puppet Shews (see Public Show), CL, i. 1147. Purchaser of intoxicating liquor, whether punishable, SC, 986, 1029. Purchases and Sales contrary to bank- rupt laws, DF. 234. Purchasing and Slaughtering cattle, unlawful, DF. 170. Purity (see Bad English), how in lan- guage of indictment, OP. i. 340-359. " Purport," meaning, CP. i. 560, ii. 413, note, 454, note. Purport Clause in forgery indictment, various expositions, OP, ii. 413 et seq., 416, 448, DF. 456, 459, note, 46.3, note, 464, note. " Purporting," meaning, CP, ii. 417, SC. 100, note. " Purpose of Prostitution" (see Pros- titute, Seduction), in statute against seduction, SO. 641 ; how indictment, SC. 646. Purpose of Statute carried out by in- terpretation, SC. 200. "Purposely" (see Expressed Pur- pose) in indictment on statute, '"'P.i. 613. Purpresture enjoined in equity, OP. i. 1417. Purview of Statute (see Statute), with its subdivisions, full exposition, SO. 52-61 ; meaning, CP. i. 634, SC. 52, 152 ; prevails over title and preamble, SC. 62, 63 ; in conflict with proviso, SC. 65 ; " all laws within its purview," SC. 152 ; " same mischief," &c., SC. 220 ; of private stat- ute, how recited in indictment, SC. 400, 819 QUA GENERAL INDEX TO THE SERIES. EAP 401, DF. 132 ; indictment on public stat- ute, OP, i. 632 et seq. "Put in Fear" in aggravated larceny, OP, ii. 778, DF, 587. Put Off (see Coin, Counteefeiting, FoKGEEY, Pass, Passing, Uttek), meaning, CL, ii. 288, 608, SO, 307 ; proof of, OP, ii. 260. Putative Father (see Bastakdt), lia- bility of, SO, 190 a. Putting in Fear, allegation of, in rob- bery, OP, ii. 1005 ; in other connections, CP, ii. 84, DF. 587. Qualifications (see Exception, &c.), making by construction, in statute, SO, 117 a; to prevent repeal, SO. 156; stat- ute requiring special, in license, SO, 999 a. Qualifications of Voters (see Elec- tion Offences), constitutional, not controllable by legislation, SO. 809 ; how allege want of, SO. 835 ; how indictment for voting without, DF. 386. " Qualified Voter " in statute requires particularization in indictment, CP, i. 627. Quantity (see Liquor Keeping and Selling), how and when aver, CP. i. 577, ii. 349, SO. 1039; of liquor sold, when material, SC, 1013; when different liquors sold together, SO, 1017 ; alleging and proving the, in liquor selling, SO, 1039, 1047. Quarantine (see Health Regulations, Public Health), on what principle the laws of, OL, i. 492 ; disobedience to order of, OL, i. 240 ; regulating, by by-law, SO. 20 ; how indictment for breach of, DF, 513. Quarrels, homicide in, OL, ii. 701-718; uttering words to stir, OL, i. 540. Quarrelsome, evidence of deceased being, in homicide, OP, ii. 613, 615. Quarter Ticket (see Lottery Ticket) is a lottery ticket, SO, 211. Quash, Quashing. See Motion to Quash. Quashing Indictment (see Count, Court, Indictment, Motion to Quash, Nolle Prosequi, Pendency, Proceedings in, Court), effect of, as to second prosecution, CL, i. 1014, 1027 ; as to statute of limitations, SO, 262. Quasi Crime in Rem, fuil exposition, CL, i. 816-835. 820 Queen's Bench Prison, committing to, CP, i. 225, 1338. Queen's Counsel (see Attorney, Pros- ecuting Officer), how employed for defence, CP, i. 300. Queen's Sergeant, how for defence, SO, 300. Question. See Same Question. "Quick -with Child" (see Abortion), meaning, and how in law of abortion and in indictment, SC, 744-746, 753, DF. 138, note. Qui-tam Action (see Action), subsist- ing with indicment, and as to repeal of statute, SC, 156, note, 177; whether con- current, SC, 170; who plaintiff in, and further of, SO, 250 d. Quo Animo. See Evil Intent, Homi- cide, Intent, Mistake of Fact, &c. Quotation Marks in indictment, GF. i. 338, SC. 78, note. Railroad (see Fencing Railroad, Way), whether highway, OL. ii. 1266, note, 1270 ; nuisance by, CL. i. 419 ; ex- tortion by, OL. ii. 392 ; homicide by neg- ligent management, CL. i. 531, ii. 662 a; obstruction of highway by, OL. i. 420, 421 ; obstructing track of, CL. i. 531, DF. 1021 ; how indictment against, for civil injury of causing death, DF. 531. Railroad Bridge, whether, in law, a " bridge," SO. 301, note. Railroad Corporation compellable to have cattle guards at crossings, CL. i. 493, note. And see Railroad. Railroad Depot, when a warehouse, SO. 293. Railroad Ticket, forgery of, CL. ii. 546 ; obtaining by false pretences, CL. ii. 477, note ; fraudulently taking, CL. ii. 841 a ; is not a receipt or acquittance, CL. ii. 565. "Ram," whether a " sheep," SC. 248. Ramps, game of, SC. 869. Rape (see Assault, Attempt, Carnal Abuse, Puberty, Ravish, Woman), full exposition, including carnal abuse, OL, ii. 1107-1136, OP. ii. 947-979, SO. 478-499, DF. 903-914; punishable, OL. i. 554 ; woman consenting, CL. i. 259, 766, ii. 1120 ; consent obtained by fraud, CL. i. 261, ii. 1122 ; on insane woman, GL. i. 261, ii. 1121,1123; age of puberty as to, OL. i. 373, 554 ; attempt, OL. i. 736, 746, 762 ; boy under fourteen, OL. i. 736, 746, REA GENERAL INDEX TO THE SERIES. EEC 753 ; whether also assault, OL. i. 788, ii. 56; on daughter, incest, OL. i. 795; in- dictment for, conviction assault, OL. i. 808, 809 ; punishment, OL, i. 935 ; intent to commit, in burglary, OL. ii. 56 ; indict- ment have " ravish," OP. i. 335, ii. 953 ; indictment for, conviction adultery or fornication, OP. i. 419 ; attempt, CP. i. 431, 446, ii. 91 ; allegation of child begotten, CP. i. 479 ; against principal of second de- gree, OP. ii. 6a, 957 ; assault vpith intent, CP. ii. 81, 82 ; attempt by negro on white woman, SO, 211 ; common law and stat- utory, distinguished, SO. 478 ; statutory modifications of, SO. 480-482 ; carnal abuse termed, SO. 485 ; not also seduc- tion, SO. 643 ; whether also adultery or fornication, SO. 660 ; victim of, not an adulteress, SO. 663 ; indictment for, not negative marriage, DF. 151, note; con- spiracy to commit, DF. 292 ; murder by, DF, 534. Ratification of Treaty, when takes ef- fect, SO. 32. "Ravish" in indictment for rape, OP. i. 335, ii. 953, DF. 905, note; in carnal abuse, SO. 486. Real Estate, Realty (see Forcible Entry and Detainer, Land, Tres- pass TO Lands), how protected by crim- inal law, OL. i. 577 ; malicious mischief to, OL. i. 569, ii. 984, 985 ; as object of conspiracy, OL. ii. 211 ; as subject of lar- ceny, OL. ii. 762-766, 770, 783 ; larceny of things pertaining to, under statutes, SO. 416, DF. 596-600 ; indictment for malicious mischief to, DF. 722-730 ; lease of, in whom lay ownership, OP, ii. 721 ; parol evidence where injury to, OP. ii. 850 ; defence of, OL. i. 536, see Defence. Re-arrest (see Arrest, Escape, Pris- oner AT Large), when and bow, OP. i. 163, 196, 203 ; after bail forfeited, OP, i. 263 a ; of escaped prisoner, CP. i. 1382, 1383, DF. 898, note; disposal of prisoner on, OP. i. 1384. Reason, meaning legal reason, OL. i. 18, note ; numerous and varying reasons for law of libel, DF. 624. Reason and Conscience (see Divine Law) in legal authority, OL. i. 42, 309. Reason of Law, Reasons of Law, looking into preamble and title of statute for, SO. 46, 48, 49 ; statutes within the, retrospective, SO. 84 a ; interpreted by the, SO. 102 ; contracting and expanding statutory meanings, SO. 188-190 e, see Contracting and Expanding ; in strict construction case within the, must be also within words, SO. 220 ; case out of the, not within statute, SO. 226, 232, 235. Reasonable and Beneficial, by-law must be, SO. 22, 25, 26. Reasonable Cause for suspicion, OP. i. 182. See Probable GniLT. "Reasonable Creature," in statute, how in indictment, CP. i. 615. Reasonable Doubt, doctrine oi,fuU ex- position, OP. i. 1091-1095 ; before grand jury, OP. i. 866, 867 ; on question of in- sanity, CP. ii. 671 et seq. ; given the ac- cused in interpreting statute, SO, 194. Reasonable Meaning (see Meaning OF Statute), in interpreting indict- ment, OP. i. 356 ; statute SO. 93, even in strict construction, 212-215. Reasoning, how legal, differs from legis- lative, OL. i. 277. Rebel, Rebels, succoring, OL, i. 64, note, ii. 1212; refusing to assist king against, OL. 1. 469 ; joining, from fear, OL. ii. 1208. Rebellion, OL, i. 63-68, 351, and see Treason ; effect of, on limitations stat- ute, SO. 261 a, 267. Rebuttal, evidence in, as to burden of proof, OP. i. 1050; by alibi, OP. i. 1061- 1068; by other evidence, OP. i. 1069- 1072 ; intent always open to, CP, i. 1099; bad character in, CP. i. 1112 ; good char- acter, CP. i. 1117. Recapture (see Personal Property, Property, Be- arrest) of property, OL, i. 536. Receipt (see Forgery), meaning, &c., CL. ii. 564, 785, SO. 328, note, 335, 341 ; forgery of, OL. ii. 529, 546, 564, 574; larceny of, OL. ii. 785, 787 ; how indict- ment for forging and uttering, CP. ii. 411, DF. 471. "Receipt for Goods," meaning, SO. 341, 342. "Receipt for Money," SO. 341, 342. Receiver of Materials to work on, in embezzlement, OL. ii. 349. "Receiver of Public Money," a se- lectman may be, CL. ii. 349. "Receiving." mere keeping possession is not, SO, 208, note, see Having. Receiving Stolen Goods (see Acces- sory, Embezzled Goods, Embezzle- 821 BEC GENERAL INDEX TO THE SERIES. REG MENT, Goods and Chattels, Larce- ny, Stolen Goods), full exposition, CL, ii. 1137-1142 a, CF. ii. 979 a-991 a, DF, 915-918 ; a species of larceny, CL. i. 567 ; taking back one's stolen goods, CL. i. 694 ; taking another's, CL. i. 699 ; how construe statutes against, CL. i. 785 ; both felony and misdemeanor, CL. i. 789 ; disqualifies witness, CL. i. 974 ; in what count}' indicted, CP. i. 60 a ; allegations, CF. i. 431, 556; joining larceny counts, CF. i. 449 ; surplusage in indictment, CP. i. 481, 483; name of thief, CP. i. 483; possession as evidence in, CF, ii. 747, 988 a, 989 ; some statutory interpreta- tions as to, SO. 345, 413. Recital, how allegation by way of, differs from direct charge, CP. i. 554 ; of private and public statutes, SC. 395-402, 405, DF. 132 ; of municipal by-laws, SC. 405, 406, DF. 133-136. Recitations of Facts, in preamble of statute, effect of, SC. 50. Reclaiming wild animal, what, CL. ii. 775. Recognizance (see Appearance Bond, Bail, Bond of Eecokd, Directory, Sureties), full exposition, CP. i. 264- 264 e ; effect on, of quashing indictment, CP. i. 771 ; one's, on becoming state's evi- dence, CP. i. 1168; after warrant issued, CP. i. 187 ; in name of other person, CL, ii. 554, 555 ; in form departing from statute, SO. 164, note; in gaming, SC. 917. Reconciled, affirmative statute which can be, no repeal, SO. 154. Record (see Arrest of Judgment, Counterfeiting, Court, Forgery, Jeopardy Repeated, Larceny, Lost Ebcord, Public Records, Registry Laws, Writ op Error), /uM exposition, CP, i. 1340-1360, DF, 1066-1073; mean- ing, CL. ii. 570, 785 ; altering or counter- feiting, CL, i. 468 ; whether larceny of, CL, ii. 768, note ; a step in procedure, OP. i. 4 ; waiver of right as to, CP. i. 125 ; historical view of, Latin, &c., CP. i. 340- 343 ; show place of offence, CP. i. 364 ; of conviction before magistrate, CP. i. 722- 725 ; to sustain autrefois acquit, &c., CP, i. 815, 816, 825 et scq. ; of grand jury, impeaching, OP, i. 858; of return of in- dictment, CP, i. 869 o; plea contrary to the, CP. i. 885 ; arrest of judgment for bad, OP. i. 888, 1285 ; proof of, OP. i. 822 1133; averring, in perjury, CP. ii. 905- 909, 911, DF, 872 ; how indictment to pro- cure false, of marriage, DF. 297. Record of Conviction m proof of principal's guilt, CL, i. 667, OP, ii. 12, 14. Record Pact, how allege, DF. 93-97. Record of Marriage, construction of statute requiring, SC. 222 ; conspiracy to procure false, DF. 297. Records (see Legislative Records), resorting to, as to exact date of statute, SO, 29 ; as to words and validity of stat- ute, SC. 37 ; proof of marriage by, in polygamy, SC. 610 ; proof of age by, SO. 491 ; omitting to enter license in, SC. 1000 ; jury taking, on retiring to delib- erate, CP. i. 982 a. Recreation given to jury, CP. i. 997. Recruiting Soldiers (see Persuading to Enlist), statute regulating, OL. i. 752. Rectifier of Spirits, whether "distil- ler," SC. 273. Redemption of Land, liberal construc- tion of statutes permitting, SC. 1 20. Redundant Words of statute rejected in interpretation, SC. 215. Re-enacted Statutes, meanings of, SO. 97. Re-enactment of Statute simultane- ously with repeal, BO. 181. Referees (see Arbitrator, Award), refusing to report, a contempt, OL. ii. 256 ; bribing, DF. 250 ; perjury before, DF. 876. Reformation of unchaste woman, SO. 639. " Refreshment Saloon," meaning, SO. 1011. Refreshments to jury, CP. i. 997, 999. Refusal of liquor license, SC. 1006. Refusing to Accept Office (see Of- fice), fitll exposition, CL. i. 246, 458, OP. i. 529, ii. 820, 821, DF. 919; special plea to indictment for, DF. 1046, note. Refusing to Assist Officer (see Ob- structing Offickr), how the indict- ment for, DF. 844-847. Refusing Duty hy officers, DF. 690, see Malfeasance and Non-feasance, &c. Refusing to Testify, before grand jury, CP. i. 869 ; against bawdy-house, CP. ii. 117. Register of Births, false entry, SO. 210. Registering Sales of Liquor, how in- dictment for not, DF, 658. EEM GENERAL INDEX TO THE SERIES. REP Registration, how allege unlawful, SO. 835. Registration LaTvs, power of legisla- tion to establish, SO. 809. "Registry" (see Foegeey), meaning, OL. ii. 570. Registry Laws, violating, /«fl exposition, DF, 920-923, and see CL. i. 468, ii. 531, 550, 554, 555, 570, 785, SO. 210, 809, 835, DF. 297. Regrating, fuU exposition, 01. i. 518- 529. Regulate (see Pdblic Good), legislation may, a constitutional right, SO. 809. "Regulate Commerce," United States to, CL. i. 173. Rehearing. See New Teiai. Relationship, as disqualifying jurors or not, OP. i. 901 ; witnesses, OP. i. 1140; knowledge of, in incest, SO. 729 ; aver- ring, SO. 732, proving, 735. Relative Pronoun refers to what ante- cedent, OP. i. 355. Relative Strength of defendant and de- ceased, in homicide, CP. ii. 630. Release, forgery of, OL. ii. 551. Relevant. See Irrelevant Evidence. Religion (see Blasphemy, Christian- ity, Conspiracy, Lord's Day), essen- tial to society, CL. i. 495 ; established, OL. i. 496 ; conspiracy to subvert, CL, ii. 228 ; attempts by force to reform, CL. ii. 1209 ; statutes for advancement of, bind State, SO. 103. Religious Assembly. See Disturb- ing Meetings. Religious Beliefs not within sphere of legislation, SO. 988 a. Religious Imposture, whether indict- able, OL. 1. 497. Religious 'Worship, how allege dis- turbance of, DF. 366, 367, 369, 370, and see Disturbing Meetings. Remedial Statutes construed liberally, and why, SO, 120, 189 d, 190, note, 192, 198. Remedy, Remedies (see Common-law Remedy, Concurrent, Court, Dif- ferent Natures, Duty and. Pro- cedure, Proceedings, Statutory Right), changeable by statute, CP. i. 115, SO. 85 a ; for misdoings of grand jury, CP. i. 872 ; for what is improper in counsel, OP. i. 975 b ; nolle prosequi as, OP. i. 1014 ; rules of evidence as pertain- ing to, CP. i. 1089 ; whether writ of error concurrent with other, OP. i. 1370 ; rea- son of, in interpretation of statute, SC. 82 ; statutes to regulate, retrospective, SO. 85 a ; law implies, for statutory or constitutional right, except, SO. 137 ; common-law, for statutory right, SO. 138, 144; double, triple, &c., SO. 163 d- 164; multifarious, SO, 169; different, operating together, SO. 169-172; distin- guishable from right, SO. 175 ; what statute governs the, SO. 176 ; statutes taking away, rights vested or not, SO. 178; define, not abrogate, SC. 178, DF. 38; reviving, after lapsed, SO. 180; cumulative or not, SC. 249 ; express, excluding implied, SC. 249-250 b ; for statutory right, SC. 249-253 ; common law mingling, SC. 249 i-253 ; limitations statutes pertain to, SO. 264 a, 266. Remote Cause, how regarded in crim- inal law, OL. i. 212, 213, note. Removal of Cause to another court for trial or sentence, CP, i. 223 b, 1377, 1380, 1408, DF. 1081. Removing Fence, indictment for, DF. 995. Rent, borrowing money on pretence of having to pay, CL. ii. 425. Repairing Highway. See Way. Repeal of Statutes (see Express Re- peal, Modification), the general doc- trine, /«// exposition, W. 147-163 a; the doctrine of implied, combining with other doctrines, /«// exposition, SO. 163 i-174; the consequences following actual and attempted,/!!// exposition, SC. 1 74 a-1 87 ; unconstitutional statute declaring, SC. 34 ; submitting question of, to people, SC. 36 ; partial, by partly conflicting statute, SO. 126, 131 ; statute restricted by construction without, SC. 131 ; not implied from omission, SO. 161, 249 a. Repealed Statutes, to be interpreted ■with existing, SC. 82, 98 ; how re-enact- ments of, SC. 97 ; no proceeding under, SC. 177. Repealing Clause, does not operate till all takes effect, SO. 31 ; how interpreted, SC. 151 ; special terms of, SC. 152. Repealing Statute (see Express Re- peal), validity of, in suspense, SC. 151 ; effect of repeal of, SC. 186 ; of expiring, SO. 187. Repentance not remission of crime, be- fore and after act, distinguished, CL. i. 208 a. 823 REQ GENERAL INDEX TO THE SERIES. RES Repetition of Offence (see Offence Repeated), statutes making second of- fence more heavily punishable than first, full exposition, OL. i. 959-965, DF. 91-97, 818. Repetitions of Dying Declarations may be proved, OP. i. 1214. Replication, OP. i. 792, 793, note, 794, 817, DP. 1056-1059. ±ieply, right of counsel to, CP. i. 974, 975. Report of Commissioners, weight of, in interpretation, SO. 77, note. Reporters, court excluding, CL. ii. 260. Reports (see Books, Tkeatises), the, on criminal law, CL, i. 70-85. Reports of Committees, effect of, on interpretation of statutes, SO. 77. " Represent " in statute, " pretend " in indictment, OP. ii. 180. Representative of Government. See Private Person, Prosecuting Offi- cer, Peosecctor. Reprieve, doctrine of, CP. i. 1299. Republican Form of Government, guarantee of, to States, OL. i. 161-171. Repugnance in Statutes (see Con- flict, Partial Conflict), repugnant provisions nullify, SO. 41 ; how construc- tion deals with, SO. 65 ; avoids, SO. 82 ; no repeal by aifirmative statute without, SO. 157, 160-163 ; views of, as to repeal, SO. 158 ; partial repeal by, SO. 165 et seq. ; providing different punishments, SO. 172. Repugnancy in Indictment, full ex- position, CP. i. 489-492 ; in allegation of time, CP. i. 387 ; name, CP. i. 572 ; own- ership, CP. i. 582; quashing for, CP. i. 773 ; for assault, CP. ii. 59 ; tenor and purport clauses in forgery, OP. ii. 416. Repugnant Statutes, repeals of, by affirmative, SC, 154-162. Reputation (see Chastity, Evidence, General Repute, Libel and Slan- der, Slander), how far personal, pro- tected by criminal law, CL, i. 591 ; dis- tinguished from character, CP, i. 1 1 1 7 ; of defendant, in evidence, CP, i. 1112-1119; of third person, in kidnapping, CP, ii. 694 ; of chastity, in seduction, SO, 639 ; in adultery, SC, 678 ; of relationship and pedigree in incest, SC, 735. " Request," meaning, OL, ii. 560, 785 ; how indictment for forging, uttering, DF, 470. And see Forgery. "Request for Delivery of Goods," meaning, SC, 334, 335. 824 " Request for Payment of Money," meaning, SC, 334, 335. Requisition (see Extradition, Fugi- tives from Justice) of governor for surrender of fugitive, OP, i. 222, 223, 224 a. Res Gestae (see Evidence, View), doc- trine of, full exposition, OP, i. 1083-1087; complaint of sufferings, CP. i. 1111 ; another offence as part of the, OP, i. 1125, 1127 ; declarations as of the, OP. i. 1248 ; in homicide, CP. ii. 625-627, 633 ; explaining possession of stolen goods, CP. ii. 746 ; acts of the, in nuisance, OP, ii. 877. Rescue (see Escape, Obstructing Jus- tice, Obstructing Officer, Prison Breach), full exposition, OL, ii. 1064- 1106, OP. ii. 940-946, DF, 890-897; de- fined, OL, ii. 1065 ; indictable, CL, i. 466 ; aiding, but not in entire act, OL, i. 639 ; whether makes accessory after, CL, i. 695-697, ii. 1066-1069; as constituting affray, CL, ii. 5 ; allegation of time in, CP, i. 392, 404 ; of statutory traitor, SO, 136. Rescuing Cattle from pound, DF. 172- 175. Rescuing Goods, offence and indict- ment, OL, i. 467, ii. Ill, CP, ii. 890. " Resemble or Pass for," meaning, in counterfeiting, SC, 225. "Reserved" Powers of States", CL, i. 186. " Residence " (see Domicil, Place op Abode), of voter, meaning, and com- pared with " domicil," SC, 817; pre- sumption of, continuing, SO, 842 ; in in- dictment for forgery, OP, ii. 421 ; for libel, OP. ii. 784. Resisting OfBcer (see Arrest, Ob- structing Justice, Obstructing Of- ficer, Officer), what intent to resist, CL, i. 340 ; immaterial no warrant, OL, i. 440 ; indictable, OL, i. 464, 465 ; ob- structing coroner, OL, i. 688 ; whether makes accessory after, OL, i. 696, 697; construction of statutes against, SC, 216 ; procedure and indictment for, OP, ii. 881- 895, DP. 840-843. " Resisting Process," in recognizance, OP, i. 264 b ; allegation of time, OP, i. 404. Respite, of recognizance, CP, i. 264 (^ ; of sentence, CP. i. 1299, for pregnancy, 1322- 1324. BEV GENERAL INDEX TO THE SEEIES. RIG Responsibility for Crime. See Com- pulsion, CovBKTUKE, Evil Intent, Infancy, Insanity, Mistake or Fact, Necessity, &c. Responsibility for Negligence. See Accident, Cakelbssnbss, Evil In- tent, Intent, Mistake of Fact, Neglect. Restaurant not an "inn," SO. 297. Restitution, of goods in false pretences, OP. ii. 198; in larceny, OP, ii. 755-763; of possession in forcible entry, CL. ii. 496, OP. ii. 375, DF, 442, note. Restraint of Trade (see Trade), stat utes in, construed strictly, SO. 119. "Retail" {see Liquor Keeping and Selling, Liquor Nuisance, Whole- sale), meaning, SO. 1016, 1045, note; in liquor selling, SO, 1013, 1016, 1039. Retainer, duty as to accepting or declin- ing, OP, i. 309, 310. " Retreating to the Wall " (see De- fence, Homicide, Self-defence), meaning, OL, i. 850 ; in what circum- stances, OL. i. 869, 870, 871. Retrospective, Retrospective LaTvs (see Ex Post Facto, Past Offences, Prospective, Vested Rights), by- law cannot be, SO, 22 ; how far construe statutes as, SO. 82-85 b, constitutions, 92 a ; how interpret statute of limita- tions as to, SO. 263, 265 ; distinguished from ex post facto, whether valid, SO, 85 ; may be just or unjust, OL, i. 279. Retrospective Legislation, defined, SO. 83 ; interpretation of, SO. 82-85 b. Return, of precept by officer, OP. i. 187 ; on writ of error, DF, 1088. Returning Indictment into court, OP. i. 869 a ; as appearing in record, DF, 1088. Returning Recognizance (see Recog- nizance), doctrine of, OP. i. 264 e. Revenue (see Public Revenue), con- spiracy to lessen and defraud the, CL. ii. 225, OF. ii. 245. Revenue Laws (see Evading Tax, Public Revenue, Tax), object of, OL. i. 488 ; necessity excusing violation, OL, i. 351, 352, 824; enforced by forfeitures, OL. i. 821 ; necessity avoids forfeiture,' OL. i. 824 ; construed by usages of trade, SO. 99 ; whether construction strict or liberal, SO. 195; when director}', SO. 255 ; unlicensed business in breach of, SO. 1098, DF, 656, and see Unlicensed Business. Revenue Stamp, omission of, CL, ii. 540, note ; whether indictment for for- gery must set ont, OF, ii. 407. Revie'W. See Petition of Review. Revised Statutes, interpreted as one act, SO. 82, note ; omitting parts in, SO. 160, 161, note. Revisions, of statutes, how interpret, SO. 98, 144; of whole subject, as to repeal, SO. 158-162. Revived, expired statute, by proclama- tion, SO. 36. Revoking (see License) license to sell liquor, SO. 1003 a. Revolt (see Foreign Government, Government, Jurisdiction), attempts to excite, against foreign government, CL. i. 484. Revolt on Shipboard, OL. i. 564, note, DF. 580. Revolution not change law, OL. i. 14. Revolvers (see Pistol), not " arms," SO, 793 ; wearing, concealed, SO, 797. Revrard (see Bribery), taking or giv- ing, for office, OL, i. 471 ; receiving stolen goods to get, from owner, CL. ii. 1138; right to, not disqualify witness, OP, i. 1138; order to pay a, is an "order," SO. 206. Rhode Island, rebellion and martial law in, OL. i. 48, 49, note, 162. . Rice, fraudulently taking, from field, OL. il. 784. Riding, Ridings (see Assault, Fast Driving, Furious Driving), making great, OL. ii. 493 ; armed with danger- ous weapons, SC. 784 ; over one with a horse, in homicide, DF. 522 ; into crowd, CL, i. 314. Right (see Waiver op Right), every, available to defendant, CP. i. 113-116; word, in indictment for cutting ofl' ear, CP. ii. 858. Right, Rights (see Existing Rights, Lapsed, Natural, Remedy, Statu- tory, Vested), permissive words in statute conferring, construed imperative, SO, 112; taking away, not favored by in- terpretation, SO, 119, how construe, 189 c, 192 ; carries remedy by implication, SC. 137, 249 ; double, treble, &c., rights and remedies, SO. 163(^-164; what statute governs, SC. 175; and remedy, compared, SO, 175. " Right Hand " (see Left) in indictment for homicide, CP, ii. 515. 825 ROB GENEEAL INDEX TO THE SERIES. SAC Right and Remedy, rules distinguish- ing, SO. 175 et seq. ; blend, SC, 249 6-253. Rightfulness (see Divine Law), belief of, no defence in liquor selling, SO. 1023. Rights in Action, embezzling, OL. ii. 863. Rights of Property, contemporaneous interpretation of statute as to, SC. 104; judicial, SC. 104 a ; construed to mean legal rights, SO. 223. Ring-dropping (see False Pretences, Laeceny), when obtaining goods by, larceny, CL. ii. 819. Riot (see Affray, RonT, Unlawful Assembly), /«Z/ exposition, CL. ii. 1143- 1155, OP. ii. 992-1000, DF. 926-930; what, indictable, OL. i. 534 ; corporation cannot commit, OL. i. 422 ; riotous con- duct, OL. i. 537, 540 ; countenancing, CL, i. 632, 658 ; accidental results of, CL. i. 637 ; and assault, conviction of assault, CL. i. 795 ; in defence of property, CL. i. 875, see Forcible Entry and De- tainer ; whether includes assault, CL. ii. 56 ; a sort of conspiracy, conspiracies to commit, CL. ii. 226 ; right and duty to suppress, OL, ii. 653-655, OP, i. 166, 183; homicide in, OL. ii. 691 ; joinder of de- fendants in indictment for, OP. i. 464 ; whether separate trials for, CP. i. 1023 ; evidence of another, OP. i. 1124; refusing to assist officer in suppressing, DF. 847. River, Rivers (see Mississippi River, Navigable River, Nuisance, Ter- ritorial Limits, Watercourses, Way), meaning, SC. 302, 303; where crimes committed on, indictable, CP. i. 63 ; jurisdiction of United States over, OL. i. 176; how partition lines run in, CL. i. 108 ; as being within county limits, CL, i. 146 ; are public highways, OL, ii. 1266, 1271 ; cutting down banks of, CL, ii. 1273. Road (see Street, Way), when a "pub- lic place," SO, 298. Road 0£Scers, how indictment against, DP. 1019. Roadstead, when "high seas," SC. 304. " Rob," meaning in statute, SC, 242, note ; how indictment for assault with intent to, DF. 215. Robbery (see Attempt, Burglary, Defence, JjAUCF.^t), full exposition, OL. ii. 1156-1182, CP. ii. 1001-1008, DF, 931- 938 ; what, and indictable, CL. i. 553 ; aggravated larceny, CL. i. 553, 566 ; tak- 826 ing money to desist from rape, OL. i, 329 ; whether marital coercion excuses, OL. i. 358, 361 ; how fear essential in, assault, CL. i. 438 ; requires physical force, CL, i. 582 ; aiding in, CL. i. 635 ; compelling to write order for goods, OL. i. 748 ; on high seas, where conviction, CL. i. 985 ; acquit- tal of, bars larceny, OL, i. 1055 ; in house, and burglary, two crimes are one, CL. i. 1063, 1064 ; " then and there" in indict- ment for, OP. i. 408 ; on more persons than one, OP, i. 437 ; intent to com- mit, includes intent to steal, CP. i. 488 e ; allegation where thing unknown, CP. i. 553 ; variance from value alleged, OP. i. 579; special verdict, CP. i. 1006 ; decla- rations of the res gestae, OP. i. 1086 ; in- dictment for assault with intent, CP. ii. 84, 85, DF. 937. Robbing the Mail (see Embezzle- ment, Larckny, Letter Carrier, Postal Offences), statute against, construed, SC. 320 ; allegation of aspor- tation, OP. ii. 773. Rogues (see Incorrigible Rogue), how punished, OL. i. 515. Rolls of Parliament, See Parlia- ment Rolls. Roman Numerals. See Numerals. Rondo, whether game of chance, SO. 863. Room (see Part of House) may consti- tute bawdy-house, CL. i. 1085. Rooms of Lodgers (see Lodgers) as " dwelling-houses," SC. 280, 287. Rooster. See Cock-fighting. Roulette, game of, SO. 866. Rout (see Affray, Riot, Unlawful Assembly), yii// exposition, CL. ii. 1183- 1186, CP. ii. 992, DF. 928 ; and see CL, i. 534, 942, note,ii. 54,493, 1143, note, 1151. Rules of Court as affecting the proced- ure, CP. i. 9. Rules of Pleading founded in good sense, CP. i. 339. Rumor (see False Rumor), opinion from, as disqualifying juror, CP. i. 909, note ; as evidence in open lewdness, SC, 725. "Sabbath," Sabbath-breaking '(see Christianity, Lord's Day, Reli- gion), in indictment, for Sunday in stat- ute, CP. ii. 816. Sacraments, indictable to revile, GL, ii. 76, note. SCA GENERAL INDEX TO THE SERIES. SCB Saddler's Shop (see Shop) is " public house," SO. 299, note. Safe Conduct, violations of, indictable, OL, i. 484. Safety. See Public Safety. " Said " in indictment, to what refers, OP. i. 512 ; as supplying repetition, OP. i. 689 o; effect of omitting, SO. 401. Sailor (see Deserting Seamen), pro- curing intoxication of, to kidnap, OL. ii. 752. Salary (see Compensation, Office, Perquisites of Office), of officers of States and United States, how not tax- able, OL. i. 1 80 ; construction of succes- sive statutes as to, SO. 130 ; when statute fixing, abrogates former law, SO. 156 a; after repeal of statute, what, SO. 178 a. Sale (see Bill of Sale, Judicial Sale, Liquor Keeping and Selling, Pur- chases and Sales, Sell), defined, and distinguished from "barter" and "ex- change," SO. 1013-1015; of services, as equivalent to sale of person serving, SO. 211 ; mortgage as a, SO, 1015 ; on credit, OP. ii. 184, note ; how allege, OP. i. 514 ; of lottery tickets, SO. 962 ; in peddling, SO. 1084, 1085 ; how prove, SO. 1046. Salesman, larceny by, of money received, OL. ii. 856. " Saloon," meaning, SO. 1011 ; gaming in, SO. 852, 878. " Same " refers to what, in indictment, OP. i. 512. " Same or Like Kind " (see Like Kind), meaning, SO. 864-866. Same Offence (see Jeopardy Repeat- ed, Offence Repeated, Offences as Included, One Offence), what is the, OL, i. 1048-1069. Same Question, having passed upon, disqualifies j uror, OP. i. 911. Sanctuary, plea of, OP. i. 737. Sanity (see Insanity), presumption of, OP. ii. 672, 673. And see Evidence, Presumption. Sap, whether gather and boil, on Lord's day, OL. ii. 959. Saving Clause in Statute (see Clause, Sections), concerning, SO. 59 ; how con- strued with proviso and purview, SO. 65 ; in repealing statute, SO. 1 80. Sa'w-mill, indictment for malicious mis- chief to, DP. 728. Scales. See False Scales, False Weights and Mbasuebs. "Scandalous" in indictment for libel, pp. 619, note. Scandalous Words (see Libel and Slander, Slander), how indictment for, OP. i. 530. Schedule (see Bankrupt, Bankrupt- cy), of indictments, OP. i. 656 ; omissions from, by bankrupt, OP. ii. 916, DP. 231. School, Schools (see Disturbing Meetings, Institution of Learn- ing), keeping unlicensed, OP. i. 637 ; dis- turbing, OL. ii. 302, 306, OP. ii. 291 ; town not maintaining, DP. 755. School-house, whether a " house," SO. 289, note ; whether privy of, " public place," SO. 298, note ; breaking door of unoccupied, OL. ii. 505, note. School Lands, how indictment for tres- pass to, DP. 993. School Treasurer is an " officer," OL. ii. 349, note. Schoolmaster (see Teacher and Pu- pil), whether must be licensed, OL. i. 507 ; right to chastise, OL, i. 886 ; as- sault by unlawful chastisement, DP. 220 ; committing indecent assault on pupil, OL. ii. 36. Science of Law, statutory interpretation involves entire, SO. 4. Scienter. See Intent, Mistake op Fact, &c. Scientific Works. See Books. "Scilicet" (see Videlicet), use of, in criminal pleadings, OP. i. 406. Scire Facias, on recognizance, OP. i. 264 m ; death before judgment on, OP. i. 264 ;. Scold. See Common Scold. Scotch La-wr (see Blasphemy and Pko- FANENESS, Foreign Law, Jurisdic- tion, Law, Law of Nations), taking cognizance of criminal conduct without statute, OL. i. 36, 242, note ; weight of, with us, OL. i. 41 ; as to carelessness, OL. i. 217, note; as to mistake of fact, OL. i. 303, SO. 729 ; doctrine of marital coercion not in, OL. i, 365 ; as to test of insanity, province of jury, OL. i. 383 a, 387, note ; sedition under, OL, i. 437, note ; as to mental force in homicide, OL, i. 562, note ; as to form of oath, OL. ii. 1018, note. Scour River, neglect to, OL. i. 316. Screen, obstructing view of liquor selling by, DP, 659. Scrip Receipt, when not a "receipt," SO. 341. 82T SEC GENEEAL INDEX TO THE SEBIES. SED Scriptures (see Blasphemy, Chris- tianity, Religion), reviling the, CL. ii. 77, 83, DF. 243. " Se Defendendo." See Self-defence. Sea (see High Seas, Maritime Juris- diction, Ocean), meaning, SO. 304; county lines on, CL. i. 146. Sea-captain. See Master Mariner. Sea-shore (see Tehritorial Limits), meaning, SO. 305 ; jurisdiction over, OL. i. 146. Sea-^^eed, when subject of larceny, OL. ii. 877 ; gathering, on Lord's day, OL. ii. 959. Seal, Seals (see Forgery, Stamps and Seals), unlawfully putting, in forgery, OL. ii. 574 ; whether warrant must be un- der, OP. i. 227, 243 ; to recognizance, not, CP. i. 264 ; to venire facias, OP. i. 882 ; in forgery, OP. i. 486, note, ii. 418 a, OL, ii.' 567 ; forging impressions of, OL. ii. 526, 530, DF. 476. Sealed Letter, transmitting libellous, OL. ii. 949. Sealed Verdict (see Verdict), CP. i. 1002. Seamen. See Deserting Seamen, Master Mariner, Search-'warrant (see Warrant), full exposition, OP. i. 240-246 ; breaking doors to serve, OP. i. 196; arrest of person and goods under, CP. i. 208, 209, 218. Searching Person of arrested defend- ant, OP. i. 210-212. Seas. See High Seas, Maritime Jd- RisDicTioN, Ocean. Secession War (see War), legisla- tion after, as to limitations statute, SO. 267. Second Conviction. See Arrest of Judgment, Jeopardy Repeated, New Trial, Offence Repeated, Sen- tence, Verdict. Second Degree (see Aider, Degrees, Principal of Second Degree), prin- cipal of, in felony, fidl exposition, CL. i. 604, 648, 649, 652-654, OP. ii. 3, 5-6 a, DF. 113-115 ; in statutory crimes, SO. 88, 135, 136, 139, 145 ; in polygamy, SO, 594, adultery, 659, abortion, 749, concealment of birth, 770, 775, gaming, 881, liquor selling, 1029 ; in murder, DF. 539, rape, 914. Second Indictment (see Jeopardy Repeated), grand jury may find, on former evidence, OP. i. 870. 828 Second Jeopardy (see Jeopardy Re- peated), under statute and by-law, SO. 24 ; in liquor selling, SO. 1027. Second Offence (see Jeopardy Re- peated, Offence Repeated, Of- fences AS Included, Previous Of- fence), laws punishing the, more heavily than first, fuU exposition, CL. i. 959-965, DF. 91-97 ; as to pardon, CL, i. 919 ; short form of allegation, OP. i. 101 ; how the statutes construed, SO. 240 ; in drunkenness, SO. 981, liquor selling, 1044 a ; of uttering, DF. 339. Second Prosecution (see Jeopardy Repeated), for one act, under different statutes, SO. 143 ; whether for different penalty, SO. 171, 172. Seconds (see Duelling), in duel, OL. i. 654, ii. 311 ; as witnesses to duel, decla- rations of, OP. ii. 308. Secrecy of proceedings before grand jury, CP. i. 857-859. " Secret " in carrying weapons, SO. 786, 788. "Secret Burying" in concealment of birth, SO. 771. Secret Disposition in concealment of birth, SO. 773 ; how the allegation, SO. 778. Secretary of Legation, ministerial dignity and rights of, OL. i. 128. " Secrete," meaning, CL, ii. 904, note. Secreting (see Fraudulent Convey- ances) property to defraud creditors, DP. 482, 483. Sections of Statute (see Clause, Saving Clause), origin and history of, SO. 66 ; eflFect of, SO. 67, 251. Secular Meeting (see Disturbing Meetings), how indictment for disturb- ing, DF. 368. " Securities and Effects," meaning, CL. ii. 785, SO. 340. "Security," "Securities" (see Gov- ernment Securities, Valuable Se- curity), meaning, OL. ii. 570 b, SO. 340. "Security for Money," meaning, CL. ii. 785, SO. 340 ; not include money, SO. 217. Sedition (see Treason), full exposition, OL, i. 457, DF. 621, 939-942. Seditious Conspiracy. See Conspir- acy. Seditious Libel (see Libel and Slan- der), arrest for, OP. i. 207 a, note ; how SEL GENERAL INDEX TO THE SERIES. SEN the indictment, SF. 621 ; practical limit to prosecutions for, DF. 637. Seditious Words, OP. i. 521, note. "Seditiously" in indictment for libel, DF. 619, note. "Seduce and Debauch" in statute against seduction, SG. 642 ; meaning of, for court, SO. 652. " Seduced by Devil " needless in allega- tion, OP. i. 501, ii. 503, DF. 44. Seducer, attempted homicide of, by hus- band, OP. ii. 95. Seduction and Abduction of Wo- men (see Abduction, Defilement, Endeavoking to Seduce, Girl un- der Sixteen), full exposition, SO. 614- 652, DF. 943-951 ; conspiracy to seduce, distinguished, SO. 625 ; how indictment for the conspiracy, DF. 294, 298 ; whether previous chastity presumed, OP. i. 1106. And see OL. i. 327, note, 555, 560, ii. 235, note, OP. i. 54, ii. 244, SO. 215, 71.5. Seizing Goods (see Search-warrant) in cases of arrest, OP. i. 210-212. Seizure, of lottery tickets, SO. 957; of liquor, SO. 993, 994. Selectman, Selectmen (see Town), is " public officer," CL, ii. 349 ; neglecting official duties, 01. ii. 982 ; indictment of, for not appointing liquor agent, DF. 684. Self (see Making- Self a Nuisance, Mayhem, Self-murder, Witness), what injuries one may inflict on, OL. i. 259, 260, 513 ; how statutes permitting one to testify for, SO. 193, OP, i. 1181- 1187 ; whether woman can commit crime of abortion on, SO. 749. Self-defence (see Defence, Homicide, Life, Person), full exposition, CL. i. 838-876; through mistake of fact, CL. i. 305 ; assault in, OL. ii. 37-41 ; homi- cide in, OL, ii. 621, 622, 698-713 ; char- acter and declarations of deceased on issue of, OP. ii. 613 et seq. ; carrying weapons in, SO. 788 6. Self-mayhem, punishable, CL. i. 259, ii. 1187. Self-murder, /uK exposition, OL, ii. 1187, DF. 952-954 ; unlawful, OL. i. 259 ; fel- ony, OL. i. 511, 615; one counselling to, OL. i. 510, 652 ; two undertaking to com- mit, together, CL. i. 652; common-law forfeiture for, CL. i. 968. Self-preservation. See Self-defence. "Sell" (see Forgery, Sale), meaning, CL. ii. 608, SC. 225, 1013 ; what it is to, liquor, SC. 1013-1015. Sell "from," how interpret, in statute, SO. 215. Selling (see Adulterated Liquor, Adulterated Milk, Mortgaged Property, Noxious and Adultera- ted Food) diseased meat, procedure for, CP, ii. 868, DF. 765, 768, 769. " Selling and Bartering " in statute against forgery, OL. ii. 608. Selling Liquor. See Liquor Keeping AND Selling, Liquor Nuisance. Selling on Lord's Day, how indictment for, DF. 655. See Lord's Day. Selling Lottery Tickets (see Lotter- ies), statutes to punish, SC. 958 ; how indictment, SC. 962, 965, DF. 677. 'Selling by Sample, whether peddling, SO. 1076. " Selling for Slave," meaning, SC. 232. Selling by Unlawful Measure (see Cheats), how indictment for, CP. i. 577, and see ii. 158-161. Selling Unlicensed (see Business, Dealing as Merchant, Hawkers AND Peddlers, Liquor Keeping and Selling, Unlicensed Business), less than so much, how allege, SC. 1034. Selling Wife. See Wife. "Senior" as affix to name in indictment, OP. i. 687. Sensible Meaning, statutes construed as having, SO. 93. Sentence (see Arrest of Judgment, Conviction, Corporal Punishment, Cumulative Sentence, Erroneous Sentence, Execution of Sentence, Final Judgment, Fine, Jeopardy Repeated, Judgment, Pardon, Pun- ishment, Record, Sureties of Peace), the, full exposition, OP, i. 1289- 1334 (namely, in general, CP. i. 1291- 1299; fine and its incidents, OP. i. 1300- 1309 ; corporal punishment and inci- dents, CP. i. 1310-1312; costs, CP. i. 1313-1321; pregnancy of female pris- oner, CP. i. 1322-1324 ; more counts than one, OP. i. 132.5-1334) ; execution of the, full exposition, OP. i. 1335-1339; form of record of the, and judgment, DF. 1066- 1073; day not material in, OL. i. 951 ; on successive convictions, CL, i. 953 ; in penal actions, CL, i. 795, 796 ; where there can be no valid, no jeopardy, OL. i. 82, » SEE GENEEAL INDEX TO THE SERIES. SEX 1021-1041 ; after change of venue, what officer execute, OP. i. 74 ; defendant waiving right as to time, CP. i. 126; bail after, OP. i. 254 ; presence at, CP. i. 275 ; how duplicity affects the, OP. i. 443 ; on several counts, OP. i. 450 ; indictment allege what enable court to determine, OP. i. 538-542; against joint defendant, CP. i. 1035-1037 ; writ of error to reverse, &c., OP. i. 1372, 1373; after escape of prisoner, CP. i. 1382-1386; habeas cor- pus as to, CP. i. 1410 ; in burglary, CP. ii. 144; in nuisance, CP. ii. 870, et seq. ; in rape, OP. ii. 975 ; how time computed in, SO. 110 a, note, 218 ; under what law the, SO. 165, 166, 176, 183, 184; not, after statute repealed, SO. 177; statute as to time in, directory, SO. 255 ; setting out the, in indictment for second offence, DF. 94 ; form of information for further, by reason of prior offence, DP. 97. Sentence of Death, form of the, DF. 1070. " Separaliter " (see Several), use of, in indictment, CP. i. 473 et seq. ; for bawdy- house, CP. ii. no ; for gaming, SO. 912. Separate Crimes, how legislation make, of one transaction, SO. 1 72 ; each count in indictment to charge, CP. i. 426. Separate Families (see Families, Pakt of House, Several Families), effect of, occupying dwelling-house, SO. 287 ; allegation of ownership, CP. ii. 38, 138. Separate Indictments (see Joinder) for felony and misdemeanor, one transac- tion, OP. i. 445, note; for adultery, SO. 670. Separate Policies, arson to defraud in- surers, OP, ii. 48 b. Separate Trials (see Joint and Sep- arate Trials), how and when, OP. i. 1018-1026, 1030, 1041, 1043. Separating "Witnesses at trial, ^mS ex- positim,CS, i. 1188-1193. Separation of Jury, how and when, OP. i. 995-998, 1002. Sepulture (see Burial, Burial- ground, Corpse, Dead Bodies, Dis- interring- Dead Body, Grave, Grave-clothes), fall exposition, OL. ii. 1188-1190, CP. ii. 1009-1012, DF. 955- 958, and see OL. i. 468, 506, ii. 228, 780, 984, SO. 156. Sergeant. See Queen's Sergeant. "Serious Bodily Harm" (seeGRiEvous Bodily Harm), meaning, SO. 318, note. 830 Servant (seeAoENT, Clerk, Embezzle- ment, Enticing Servant, Fellow Servant, Larceny, Master, Master AND Servant, Neglect, Principal and Agent), meaning, OL. ii. 331-333, SO. 271 ; when master criminally respon- sible for acts of, CL. i. 218-221, 316, 317 ; command of master not justify crime of, CL, i. 355 ; as master's innocent agent, SC. 306 ; neglect to supply, with food, CL. i. 557 ; may commit arson of master's house, CL. ii. 13 ; maintain master in suits, OL. ii. 128 ; how allege ownership of premises wrongfully occupied by, OP. ii. 37 ; procedure for larceny by, OP. ii. 775, 776, DF. 584 ; how indictment for seduction and defilement of, DF. 294; seducing, from employment, DF. 303, 304 ; enticing or hiring away, DF. 576, 577 ; indictment for neglect to provide for, DF. 751. Service of Process (see Notice, Pro- cess), statutes authorizing constructive, interpreted strictly, SC. 119. Services, vrhen sale of, is sale of person, SO. 211. "Set Fire to" (see Arson, Burn), meaning, SC. 311 ; in indictment for ar- son, OP. ii. 46, 47, DF. 179, note, 182, note. " Set up or Keep " in statute against gaming, SO. 881. Setting up Gaming (see Gaming), stat- utory offence of, SC. 852, 876; indic^ ment and evidence, SC. 889-892, DF. 499-503. Setting aside Jurors, doctrine and practice of, OP. i. 938, 939. Setting up Lottery, how indictment for, DF. 673, 674, see Lotteries. Settlement of Pauper, conspiracies to change, CL. ii. 218. Several (see Joinder, Offences Sev- eral, One Offence, Separaliter), trial when offence is, CP. i. 1041 ; in adultery and fornication, SO. 672, 708 ; open lewdness, SC. 721. Several Families (see Families, Lodg- ers, Part op House, Separate Fam- ilies) in one house, how lay ownership, CP. ii. 38, 138. Severally. See Separaliter. Severance of defendants at trial, fiM ex- position, CP. i. 1018-1026. Sex, whether aver, in indictmeint for rape, CP. ii. 952, DF. 90.5, note; if averred, SHO GENERAL INDEX TO THE SERIES. SID prove, OP. i. 488 ; in larceny of ani- mal, SO. 426; in estray, SO. 464; in living in adultery, SO. 705. " Sexual Intercourse " defined, SO. 661. "Shall," meaning, and when read as "may," SO. 112. "Shed," meaning, SO. 291, note. Sheep (see Animals), in larceny, CL. ii. 774, 797, 804, 839, 840 ; killing, to steal, SO. 211, note; whether word, includes " ewe " or " lamb," SO. 212, 247, 248 ; is "cattle" and "beast," SO, 442. " Sheep or Eiwe," effect of combining words, on meaning of each, SO. 247, 248 ; how indictment for stealing, SO. 247. Sheep-stealing (see Larceny), statutes against, construed, SO. 247. Shell-fish (see Fish and Game), by-laws regulating the taking of, SO. 20. Shelter. See Proper Shelter. Sheriff (see Arrest, Constable, Of- fice, Officer, Resistino Officer), whether indictable for act of deputy, negligent escape, OL, i. 218 ; not commit for contempt, OL. ii. 248 ; contempt in disobeying process, OL. ii. 255 ; extortion by, OL. ii. 394 ; killing, while executing process, OL. ii. 654 ; punishable for what malfeasance, CL. ii. 978, 979 ; false oath before, on writ of inquiry, CL. ii. 1025 ; conservator of peace, arrest by, OP. i. 181 et seq., 186, 189 ; bailing, OP. i. 251 ; indictment against, for false return, OP. ii. 828 ; usurping oflSce of, DP. 849. Shifting Burden of Proof. See Bur- den OF Proof, Presumption. Ship, Ships (see Casting aw at Ves- sel, Confining Master, Craft, De- serting Seamen, Desertion, De- stroying Vessel, Forfeiture, Neu- trality Laws, Revolt on Shipboard, Vessel), offences in.OL. i. 112-120, 130, 143, DP. 89, 879, note ; neutral's share in belligerent's, OL. i. 826 ; arson of a, OL. ii. 17; master of, stealing packages, OL. iL 860 ; nationality of, may be shown orally, OP, i. 384. "Ship or Vessel" (see Vessel), open boat is not, SO. 216. Shoe-shop, whether " public house," SO. 299, note. " Shoot " and " shoot at," equivalents, OP. i. 613. "Shoot at," meaning, CL. i. 758. Shooting (see Assault, Grievous Bod- ily Harm, Homicide, Serious Bodily Harm), how indictment for murder by, OP. ii. 564, DP. 520; with intent to kill, OP. ii. 652, 653, DP. 215, note, 549-559. Shooting at, persons present encour- aging, SO, 135. Shooting-match. See Betting on Shooting-match, Shop (see Open Shop, Saddler's Shop, Store), meaning, CL. ii. 901, SO. 295, 1011 ; whether " public place," SO. 298; banking house is, OL, ii. 118, note; how construe statutes against larceny from, CL. ii. 900, SO. 233 ; when part of dwel- ling-house, SO. 285 ; arson of, OL. ii. 17. Shop-books, admitting, " after," &c., SO. 249 a. Shop-breaking (see Breaking, Bur- glary, &c.), indictable under statutes, OL. i. 559 ; indictment and evidence, CP. i. 618, note, ii. 747, and for other particu- lars see Burglary. Shores, county lines between, CL. i. 149. Short Forms of Indictment, statu- tory, DP. 23 ; in homicide, DP, 542-546. Shortening (see Cutting Short) stat- utory meanings by construction, SO. 190 rf, 190 e. Shovel Plough, larceny of, OP, ii. 710. Show, Shows. See Evil Shows and Exhibitions, Public Indecent Show, Public Show. " Show Forth in Evidence " (see Evi- dence, Forgery), meaning, OL. ii 608, SO, 309. Shroud, subject of larceny, OL. ii. 780. Shuifleboard, whether game of chance, SO, 863. Shutter, Shutters, removing, cutting hole in, &c., whether breaking and enter- ing, OL. ii. 92, 95, SC. 312. Shutter-boz not part of dwelling-house, SC. 281. Sick (see Health Regulations, Pub- lic Health, Quarantine), injuring person, by discharge of gun, OL. i. 549. Sickness (see Jeopardy Repeated, Juror, Witness), trial broken off by, as to second jeopardy, OL. i. 1032, 1037 ; of prisoner, effect on bail, CP, i. 259 ; of prisoner during trial, how proceed, OP. i. 274 ; as excusing from grand jury, CP. i. 853 ; of petit juror at trial, CP. i. 948 ; of witness, continuance, OP. i. 951 a. Sidewalk (see Wat), permitting swine on, DP. 171 ; other obstructions of.OL.ii. 1274, note. 831 SKI GENERAL INDEX TO THE SERIES. SMA Sign not essential to inn, SC. 297. Sign-board is " advertisement," SC. 207. Signature (see False Pketences, Goy- eenor's Signature, Miskeadino a Writing), proof of, OP. ii. 431-432 c; obtaining, by false pretences, CL. ii. 460, 484, 589, note ; how the indictment, OP. ii. 178, DF. 428. " Signed " in indictment for forgery, OP. ii. 417. Signification. See Meaning of Stat- ute, &c. Signs and Pictures (see Evil Shows AND EXHIEITIONS, LiBEL AND SlAN- dek, Obscene Libel, Obscene Prints AND Exhibitions, Pictures), libel by, CP, ii. 794 a-796, BF. 628-631. Silence, under accusation as evidence of guilt, CP. i. 1254 ; crier's proclamation of, CP. i. 1292. Silver, when not included in " other metals," SO. 246 a, note. Silver Plating, false pretence as to thick- ness of, CI. ii. 454. " Similar Pieces " (see Coin, Counter- feiting), meaning, OL. ii. 288, SO. 214. Similiter, form of, OP, i. 796, DF. 1070 ; not essential, CL. i. 1029 a, OP. i. 801 , and see Issue. Similitude (see Counterfeiting, For- gery), essential in counterfeiting coin, CL. ii. 291, CP. ii. 260; how in forgery, CL. ii. 592-595 ; of bank-bills in stat> ntory forgery, SC. 217. Similitude of Hands. See Compari- son OP Hands. Simony (see Ecclesiastical Bene- fice), whether indictable, CL. i. 496. Simple Larceny. See Labcent. Singing Birds not subjects of larceny, OL. ii. 773. "Single Woman" (see Married Wo- man, Wife, Woman), when includes married woman, SC. 190 a. Singular Number, statutory words in plural include, SO. 213. " Sister "in statute against rape, SO. 481 . Sit (see Trial), whether prisoner, at trial, OP. i. 956. " Sit or Stand," meaning, SO. 95. Situate. See There Situate. " Siz Months," meaning in statute, SO. 105. Skeleton Key (see Key), entering by, in burglary, CL, ii. 96. " Skill," game of, SO, 862. 832 " Skin-cap " gaming-table, statute pun- ishing, SO. 864. Slander (see Libel and Slander, Oral Words), when indictable, OL. i. 470, 540, ii. 945-947 ; why, CL, i. 591 ; efiect of pardon on action for, CL. i. 917 ; con- spiracy to, OL. ii. 217 ; spoken to justice or judge, CL. ii. 265, 266 ; of mayor, gen- eral allegation not sufBcient, CP. i. 5.30 ; grand juror, &c., witness in action of, CP. i. 857, 858 ; procedure for oral, CP. ii. 807-811, DF. 244, 326, 632-635; in foreign language, how aver, DF. 619, note. Slaughter-house (see Injurious or Offensive Air, Noxious and Offen- sive Trades, Nuisance, Offensive Trades), when indictable, OL. i. 1141, 1143; statute may prohibit, CL. i. 1144; how the indictment, DF. 830 ; statutes making penal, not repeal common-law nuisance of, SC. 156, note. Slaughtering, unlawful, DF. 170, and see Animals. Slave, Slaves (see Emancipation, Free Negroes, Negro, White Per- son), taking on board steamboat, CL. i. 307 ; permitting, to hire time, CL. i. 659 ; homicides by, the court, OL. i. 811 ; in- tending to steal, killed, OL. i. 854, 855 ; carrying arms, SO, 785, note ; selling liquor to, SC. 1021. Slave-trade, full exposition, CL. i. 564, note, SO. 232, DF. 959-961, and see CP.i. 396. Slavery (see Emancipation), effect of secession on, CL. i. 161-171 ; various statutes concerning, construed, SO. 232 ; some precedents for offences against, cited, DFi 575 ; effect of acts done in, OL. i. 893, 894. Sleep, confessions in, CP. i. 1230. Sleight of Hand (see False Preten- ces), obtaining money by, DF. 432. " Slit the Nose," meaning, SC. 317. "Slitting Nose" (see Mayhem), OP. ii. 855 et seq. DF, 743, 744. Slitting the Nostrils as punishment, CL. i. 942. Small Things (see Maxims), that the combined criminal act and I'ntent must be adequate in magnitude, _/u// exposition, CL. i. 212-229 ; law not regard, CL. i. 10 ; public wrongs too small, OL, i. 239 ; of- fences differ with degree of enormity, CL, i. 247 ; too little evil in intent where con- SOL GENERAL INDEX TO THE SERIES. SPE sequence unintended, OL. i. 334 ; insan- ity too minute to excuse, OL, i. 376 ; near and remote consequences of act, CL. i. 406 ; how in larceny, CL. i. 579 ; in in- terpretation of statutes, OL, i. 659 ; acces- sory after in petit larceny, OL, i. 680 ; nearness of intent to another's criminal act, 01, i. 688 ; attempt too small, OL, i. 759 ; conspiracy too small in evil, OL, ii. 186, 195; not sufficiently direct cause of death, OL, ii. 668. Small-poz (see Nuisance), how indict- ment for taking one having, into street, DF. 814. Smoking in Street. See Stkeet. Smothering (see Homicide), how in- dictment for murder by, DF, 520, note. Smuggling, offence of, OL, i. 488, note, DF. 972. Snead is " weapon drawn," SO. 323. " So " in statute against forcible abduc- tion, SO, 617. Soap-boiling (see Nuisance, Offen- sive Trades) may be nuisance, OL, i. 1143. " Social Club " evasion of liquor law, SO, 1013. Sodomy (see Defence, Homicide, Pen- eteation), full exposition, OL, ii. 1191- 1196, OP, ii. 1013-1018 a, DF, 962-965; indictable, divorce for, OL. i. 503 ; solici tation to, OL, i. 767, 768 b, 768 d ; right of defence against, OL. i 867 ; parent de- tecting one in, killing, OL, ii. 708 ; solici- tation to, not " infamous crime," SO. 242 ; delay in prosecution for, SO, 257, note ; maiming animal to commit, not malicious mischief, SO, 437 ; with whom committed, SO, 660. Soldier, Soldiers (see Mustering Soldiers, Recruiting, Wandering Mariners and), old English stat- utes against, CL, 5. 516; where vote, SO. 817 ; voting out of State, SO, 811- 813. " Solemn Oath " (see Corporal Oath, Oath, Perjury), meaning, CL, ii. 1018, note. Solemnize Marriage (see Marriage), refusing to, DF, 733 ; of persons under impediment, DF, 734 ; without consent of parents, DF. 735 ; without banns or license, DF. 736 ; being unauthorized, DF, 737. "Solicit " in indictment for attempt, OP. ii. 74-76, 88, DF, 106. 53 Solicitation (see Attempt, Instiga- tor, Procurer) is an indictable at- tempt, and why, CL, i. 767-768 d, 772, 772 a, ii. 20, DF. 105, 106 ; of chastity, CL, i. 501, 768; to an assault which is committed, OL, ii. 55 ; to a battery, OL. ii. 62 ; to incest, SO, 730 ; locality of the indictment, OP, i. 53, 57 ; how prosecuted, OP, ii. 74-76; to commit peijury, subor- nation, OF, ii. 938 ; to arson, how the indictment, DF, 195; to a battery, how, DF, 225 ; to burglary, DF, 258 ; to em- bezzlement, DF. 41 2 ; to larceny, DF, 61 1 ; to various obstructions of justice, DF. 852 and note ; to rape and carnal abuse, DF, 913 ; to sodomy, DF, 964 ; to perjury, DF. 967, 968. Solicitations of Chastity in proof of adultery, SO, 684. Solicitor-General (see Prosecuting Officer), as to informations, OP, i. 142 ; how employed for defence, OP,i. 300. Soul. See BoDif and Soul. "Sound Mind " (see Of Sound Mind) not necessary in Indictment, OP, li. 669. Sovereign, whether statutes bind the, SO 142. Sovereignty in People, effect of doc- trine of, on legislation, SO. 33, 36. " Sovrer of Discord " in indictment for common scold. OP, ii 200. Special Counsel (see Pritatb Coun- sel, Prosecuting Officer) for prose- cution, how, OP. i. 280-284, 962, 963. Special Demurrer distinguished from general, OP. i. 775, 778 ; for duplicity, OP, i. 442, note. Special I!2:emptions, statutes confer- ring, construed strictly, SO. 195, note. Special Language in Statute, inter- pretation expanding, under general rea- sons, SC, 102. Special La'ws, constitutional provision concerning, SO, 36 6, note. Special Locality (see Locality, Place, Specified Places), when must be al- leged, DF, 89, 90 ; in larceny, DF, 588. Special Matter of Statute, how influ- ences interpretation, full exposition, SO. Ill n-113a. Special Fleas (see Plea), whether may be oral, OP. i. 789, 790; burden of proof on, OP, i. 1048. Special Privileges, statutes granting, construed strictly, SO. 119. 833 SPI GENERAL INDEX TO THE SEEIES. STA Special Statute (see Pkivate Stat- ute), what is, SO. 42 a; how construed with general, SO. 112 b. Special Verdict (see Verdict, )/«// ex- position, GP, i. 1006-1008 ; how anciently in homicide, OL. i. 848 ; how in con- spiracy, OP. ii. 238 ; disorderly house, OP. ii. 283 ; treason, OP, ii. 1040. Species, not genus, should be alleged in indictment, OP. i. 568 ; even on statutory word indicating genus, OP. i. 616, 619, 620. Specific (see Genekal and Particit- lak), allegations of indictment must be how, OP. i. 325, 493 et seq. .530, 531, SO. 440, 835, 903-906, 1036-1038; search- warrant must be, OP. i. 242. Specific Expressions in Statute in- terpreted by general, SO. 102. Specific Intent. See Inteitt. Specific Offences (see Crime, Of- fence), how criminal transactions are divided into, full exposition, OL, i. 599, 773-785. Specific Provision (see General Pro- vision, Particular), of constitution required to make statute unconstitutional, SO. 91 a ; how as to repeal by, controls general, SO. 126 ; and general, may stand together, SO. 152, 156 ; followed by gen- eral, how construed, SO. 245-246 b, 298, 441. Specified Places (see Special Local- iTi), Statutes prohibiting liquor selling in, construed, SO. 223, 1003, 1011 ; same of gaming, SO. 852, 878, 902-907. Speeches of Counsel (see Trial), OP. i. 967-975 b. Speeches in Legislature, effect of, in interpretation of statute, SO, 76, 77. Spelling (see Bad English), effect of in- correct, in indictment, OP. i. 354, 357, 688. Spies (see Informers) as witnesses, OP. i. 1174, 1175. Spirit and Letter, in strict construction of statute case must be within both, SO, 194. fSpirit of Statute (see Liberal Inter- pretation), following the, SO, 228- 232. Spirituous Liquors (see Liquor Keep- ing and Selling, Peppermint Cor- dial, Strong Liquor), meaning, SO, 1008, 1009 ; power of Congress to forbid introducing, into Indian country, SO, 834 990 a ; effect of drinking, by jury, OP, i. 999. Spoken Words, See Oral Words. "Spread Awning," continuing awning is not to " spread " it, SO. 208, note. Spring Guns (see Defence, Homicide), setting, for protection of property, OL, i. 854, 855, note, 856, 857 ; along public way, OL, ii. 1273. Spy, how tried, OL, i. 64, note, 132. Squares, See Public Squares. Squib, throwing, OL, ii. 72 a. Squirrels not subjects of larceny, OL. ii. 773. " Stab," meaning, SO, 315. "Stab, Cut, or Wound," meaning, SO. 314,315. Stabbing, DF, 696 ; homicide by, OL, ii. 724, OP. ii. 541, DF. 520; with intent to kill, OP, ii. 654. " Stable," meaning, SO, 291, note ; part of dwelling-house, SO, 278. " Stack," meaning, OL, ii. 986 ; setting fire to, OL, ii. 16. " Stack of Stra'wr," what is not, SO, 216. " Stack of Wheat," threshed wheat is not, SO, 217. Stage-driver ( see Embezzlement, Lar- ceny), whether a servant in embezzle- ment, OL, ii. 341, 349. '• Stage of Manufacture," meaning, SO, 211. Stagnant Water (see Injurious or Offensive Air, Nuisance), how in- dictment for nuisance of, DF. 816. Stamps and Seals, forgery of, OL, ii. 530 ; how the indictment, DF. 476. Stand, whether prisoner, at trial, OP, i. 956. Stand Committed, order to, OF, i. 1301, 1321. Standing Jack, See Jack. Standing Mute, forfeiture for, at com- mon law, OL, i. 968 ; proceeding with us on, OP, i. 733 a. Stare Decisis (see Judicial Decis- ion), doctrine of, in criminal cases, OL, i. 9.3-98, DF, 546 and note ; in statutory interpretation, SO, 104 a. Starving, how indictment for murder by, OP. ii. 557-559, DF, 525. State, States (see Government, In THIS State, Jurisdiction, Locality, Other States, Republican Form of Government, Suing State, United STA GENERAL INDEX TO THE SERIES. STA States), jurisdiction and local limits of, full exposition, OL. i. 145-155 ; jurisdic- tion of United States within limits of, full exposition, CL, i. 156-181 ; what acts of, give United States legislative power over, full exposition, OL, i. 161-171; courts of, not administer United States laws, CL. ii. 1022 ; locality of crime committed in part without the, OP. i. 56 ; rights and duties of, as to fugitives from justice, OP. i. 219-223 6; alleging the, OP, i. 383 ; peremptory challeuge of jurors by, OP. i. 940; is plaintiff in ciim- inal cause, CP. i. 1082 ; whether new trial on application of, CP. i. 1272 ; whether pays costs, CP, i. 1315 ; whether have writ of error, CP. i. 1363 ; whether set out, in forgery of bank-bills, OP. ii. 409 ; larceny out of, and goods brought into, OL, i. 137-142, OP, ii. 727-729, DP, 607, 608 ; suits between, SO, 92 b ; against, SO. 103, 142, note; taking co;:;- nizance of each other's laws, SO. 97 ; statute binding the, or not, SO. 103, 142 ; laches of agent of, SO, 103, note; doc- trine of repeal in the different, SO. 163; whether is " person," SC. 212 ; power of Congress as to voting in the, SC. 807- 810 ; when may be voting out of, SO. 811-813. State Constitution (see Constitu- tion), precedence of, among laws, SO. 11, 16. State Courts (see ConRT, Jurisdic- tion), not administer United States laws, OL. ii. 1022 ; not release federal prisoner, CL. i. 63, note (par. 3) ; highest interpreters of State constitution, SO. 35 b; how of United Slates constitution, SO. 35 b ; whether jurisdiction from United States statute, SO, 142. State 0£BceTS, power of Congress over, OL. i. 180, CP. i. 221. State Prisoner (see Habeas Corpus, Political Prisoner, Prisoner of War), meaning, OL. i. 64, note (par. 8). State Statutes (see Written Laws), place and precedence of, among laws, SO. II, 17 ; United States courts interpreting, SO. 115, follow State interpretations, 261 b, note. State Treasurer is " officer," CL. ii. 349, note. State and United States, constitu- tions of, compared as to interpretation, SO. 92. Statement of Prisoner at trial, CP. i. 962, 969, 1261. Statement for Registry, offence of false, DP. 922. State's Attorney. See Pkosecdting Officer. State's Evidence. See Accomplice. Statute, Statutes (see Amendment, Clause, Constitutional Law, En- actment, Ex Post Facto Law, Ex- ception, Interpretation, I'rivate Statute, Two Statutes, Written Laws), enactment and validity of, full exposition, SC. 32 a-41 ; the several parts of, full exposition, SO. 43-67 ; offences not always dotined by, CL. i. 35, note ; sub- ject to exceptions from international law, OL. i. 115, 124 ; how construe, pun- • ishing citizens abroad, OX* i. 121; diso- bedience to, indictable, OL. i. 237 ; how where existence of, not known, CL. i. 296 ; require intent to accompany act, OL. i. 345 ; how punish felony created by, CL, i. 615, 935; how construe, cre- ating felony, OL. i. 622 ; accessories in felony created by, CL. i. 665 ; interpreta- tion more strict as offence is heavier, SC. 199 ; attempt to commit offence cre- ated by, CL. i. 759 ; words in new, take meaning of old, OL. i. 982 ; procedure regulated by, OP. i. 8 ; changing locality of indictment by, CP, i. 50, 59, note, 62, 63, 65, 76 ; may change r. medy, not right, OP, i. 115; modifying authority to arrest, OP, i. 172, 180, 184 ; regulating Sunday arrests, CP. i. 207 ; how indict- ment on disjunctive clauses of, CP, i. 434- 436, 586 ; needlessly or erroneously re- citing, OP, i. 482, note ; how allege stat- utory intent, CP. i. 521-525 ; duplicity, CP, i. 587 ; effect of, limiting methods of defence, OP, i. 1 l-VI 15, 767 ; jury taking, to room, OP, i. 982 n ; descriptive words of, in larceny indictment, OP. ii. 731-735 ; is a writing, SC. 4, and law, 11 a; how related to rest of law, SO, 4, 5, 10, 1 1 ; in conflict with treaty, SC. 13 a, 14; operating with by-law, SO. 22-2+ ; by-law antagonistic to, SO. 22; how construe, authorizing by-law, SO. 25 ; cannot bind future legislation, SO, 31, 147 ; postpon- ing time of taking effect, SO, 31 ; until takes effect, SO. 31, 177 ; rule as to when takes effect, SC. 27-31 « ; construed with constitution, SC, 89 ; indictment drawn on, good at common law, SO. 164 ; influ- 835 STA GENERAL INDEX TO THE SERIES. STE ence of, on common law SO, 138, 138 a; limiting consequences of repeal, SO. 179 ; procedure for what is created by, SO. 249 6-253 ; when word in, cannot have true meaning, SO. 590 ; effect of repeal of, on suit for liquor unlawfully sold, SO. 1030; presumption created by, in liquor Belling, SO. 1050, 1058. Statute and By-law (see Municipal By-laws), whether prosecution under both, for same act, OL. i. 1068, SO. 23, 24. Statute of Frauds, in perjury, CL. ii. 1038 ; recognizance not within, OP. i. 264 ; fraudulent conveyance contrary to, DF, 481, and see FKAUonLEKT Convey- ances. Statute of Limitations (see Delay), in criminal cases, Jiilt exposition, SO. 257- 267 ; allegation of time as to, OP, i. 405; indictment not negative bar of, OP. i. 638 ; extends to offence under subse- quent statute, SO. 87, 126 ; when runs for and against State, SO. 103, 142, note; what a fleeing from justice within, SO. 242 ; in gaming, SO. 916 ; form of alle- gation to avoid bar of, DF. 88 ; special plea of, DF. 1046, note. Statute Rolls of England, SO. 28, 44. Statutes, Indictments on (see Stat- ute), full exposition, OP. i. 593-642 (namely, how distinguish whether in- dictment to be on statute or common law, OP. i. 594-601 ; conclusion " against form of statute," &c., OP. i. 602-607 ; how indictment cover words of statute, OP. i. , 608-622 ; expanding allegations beyond statutory words, OP. i. 623-630 ; what the indictment must negative and how, XSS. i. 631-642) ; aggravations beyond statutory terms, surplusage, OP. i. 479 ; expanding allegation beyond words, in nuisance, OP, ii. 868 ; practical rules and suggestions for drawing, DF. 31-34. Statutes of Jeofails and Amend- ments (see Amendments), /«// exposi- tion, OP. i. 705-711 ; as to criminal cases, OP. i. 572. Statutory Authority must follow stat- ute strictly, SO. 119. Statutory Command, consequences of disobeying, CL, i. 237, 238, SO. 138 ; in- dictment for not execnting, DF. 683-685. Statutory Crime, one, including acts comprehended in another, SO. 143. 836 statutory Disability, effect of pardon on, OL. i. 920. Statutory Duty (see Duty), common- law indictment for breach of public, SO. 138, and see Statutory Command. Statutory Forms of indictment, con- cei-ning, DF. 23 ; in homicide, DF. 541- 546, and see Degrees. Statutory Homicides (seeHoMiciDE), how indictment for, DF. 540. Statutory Iia'^s, prima facie proof of, SO. 37. Statutory Offence must have evil in intent, GL, i. 345 ; may be punishable also at common law, SO. 164. Statutory Pardon (see Pardon), pro- cedure as to, OP. i. 834-837. Statutory Presumptions in liquor selling, SO. 10.50, 1058. Statutory Prohibition, doctrine and effect of, CL. i. 237-239. And see Stat- utory Command. Statutory Regiilatioiis of the pro- cedure, effect of, OP, i. 8. Statutory Right (see Remedy), what the remedy for, SO. 137, 144, 249-253. Statutory Rules for interpreting stat- utes, SO. 199 a. Statutory Use, words acquire meanings by, SO. 242. Stay of Execution, OP. i. 1298, 1299. Steal (see Larceny) dead human body, CL. i. 506, and see Corpse, Sepulture ; attempt to, by killing sheep, SO. 211, note ; whether word, in larceny indict- ment, CP. ii. 698. Stealing in Dw^elling-house, statute against, construed, SO. 233, 234, 240. Stealing Heiress (see Abduction, Kidnapping), OL. i. 555, CP. i. 557, SC. 618, note. StBEim-tug, whether "craft," SO. 245, 246 a, note. Steamboat (see Craft, Homicide, Ship), intproper navigation of, causing death, OL. i. 314, ii. 669, and see OL. i. 21 7, note, ii. 662 a ; is " public place," SO. 298 ; taxing liquor selling on, SO. 990 6. Steamship carrying passengers, not " inn," SO. 297. " Steer " in indictment, " cattle '' in stat- ute, CP. i. 619 ; included in "cattle," SO. 442. Stephen, Fitzjames, views of, con- nected with codification, DF. 14, 19, note. STE GENERAL INDEX TO THE SERIES. SUB Sticks, whether " offensive weapons," SO. 321. Stock-raisers, statutes for protection of, SO, 452 et seq , and see Animals. Stockbroker drawing money on princi- pal's check and misappropriating it, OL. ii. 823. Stocks, conspiracy to raise prioe of, by falsehood, CL, ii. 209, DF, 310. Stolen. See Thing Stolen. Stolen Goods (see Ueceivisg Stolen • Goods, Restitution), search-warrant for, OP. i. 241 ; presumptions from pos- session of, OP. ii. 152, 739-747, 750, 989 ; in larceny, produced in evidence, OP. ii. 753 ; restitution of the, in larceny, OP. ii. 755-763. Store (see Shop), mcaninnr, SO. 295, 1011 ; may be part of dwelling-house, SO. 285 ; whether and when " public place," SO. 298 ; a banking-house is, breaking and entering, OL. ii. 118, note; burning, 01. ii. 17. Storehouse (see Out-house, Wake- house), meaning, SO. 294 ; whether " out-house where people resort," SO. 291 ; whether "public place," SO. 298; liow allege, in gaming, DF. 493. " Storehouse where Liquor," &c., how allege card-playing at, SO. 905. As to like words see SO. 902-904. "Storeroom" not equivalent for "store- house," SO. 294. Strangers in corporate limits amenable to by-laws, SO. 22. Strangling, how indictment for murder by, DF. 520. "Stravr" (see Stack op Straw), lar- ceny of, OL. ii. 831. Stray (see Animals, Estrav, Taking UP Estray, Treasure-trove, Waif, Wreck), larceny of, CL. ii. 876. Stream. See River, Way. Street (see Public Way", Smoking in Street, Way), "lane, passage-way," and, in statute against smoking in, SO. 206 ; drunk in, not include country high- way, SO. 973 ; publishing that one refu- ses to water, not libellous, OL. ii. 931. Street Cars running on Lord's day, OL. ii. 965. Street-walker (see Escape, Misde- meanor, Night-walker), escape of, indictable, OL, i. 707. Strength, relative, evidence in homicide, CP. ii. 630 ; in rape, OP. ii. 970. Strict Interpretation of Statutes (see Interpretation, Liberal Inter- pretation), ,/«// exposition, SO. 199 6- 225 ; applied to statutes in restraint of repeal, SO. 154; in derogation of prior law, SO. 153; explanations of doctrine of, SO. 155, 189a-189c, 190 d, 190 e, 194, 196, 200, 201 ; followed in what classes of statutes, SO. 119, 1.5.5, 156, 192, 193; and liberal, in same statute, SO, 196; conflicting demands for strict and liberal, SO. 197 ; different degrees of, SO. 199 ; in concealment of birth, SO, 769. Strict and Liberal (see Liberal In- terpretation), in interpretation, blend, SO. 196-199, 226-240; applied to hmita- tions statute, SO. 259, 260. Strikes, evils of, DP. 314, CL. ii. 231, note; when indictable, OL. ii. 232, 233, DF. 305, 306. And see Conspiracy, La- bor Offences, Wages. " Strong Corroborating Circum- stances," facts which are not, SO. 843. "Strong Hand" (see With Strong Hand), in forcible entry, CL. ii. 492, OP, ii. 379, 380 ; in forcible trespass, OP. ii. 390. " Strong Liquor " (see Liquor Keep- ing AND Selling, Spirituous Liq- uors), meaning, SO. 1008. Student (see Credit to Students, Yale College), residence of, for vot- ing, SO. 817. Style of Enacting Clause, constitu- tional provision concerning, SO. 36 b, note. Subject (see Expatriation, Govern- ment, One Subject, Revisions), meaning in " English subject," SO. 205 ; statutory meanings vary with the, SO. 95 a, 98a, 111. "Subject Matter" (see Revisions), repeal of statutes on same, SO. 152, note. Subornation of Perjury (see At- tempt, Perjury), /m// exposition, OL. ii. 1197-1199, CP. ii. 1019-1023, DP. 966- 969 ; indictable, OL. i. 468 ; disqualifies to be witness, OL. i. 974, 975 ; viewed as attempt, OL, ii. 1056, CP. ii. 938, 939; whether indictment must mention sura offered, CP. ii. 75; or the particular per- jury to be committed, OP. ii. 75. Subpoena, witness disobeying, contempt, OL, ii. 256, and see 1019 ; to appear be- fore grand jury, OP. i. 868 ; to appear at 837 SUM GENERAL INDEX TO THE SERIES. SUE trial, CP. i. 959 6; indictment for pre- venting witness obeying, DP. 328. "Subscribed." See Name SuBbCRiEEC Subsequent Legislation (see Li- cense, Liquor License), licensee bound by, SO. 957, 992 a, 1001. Subsequent Statute, looking into, for intent of earlier, SO. 86. "Substance" (see Tenor), meaning in allegation, and distinguished from " ten- or," CP. i. 559-563 ; for instances in ■which matter should be set out by the " substance " or by the " tenor," see Blasphemy, DnELLiNG, False Pre- tences, Forgery, Libel and Slan- der, Perjury ; in threatening letters, DP. 977, note. And see CP. i. 546, 565, ii. 178. Substance of Issue, when proof of, suf- fices, OP. i. 488 b, 488 c, 488 e, ii. 184. Substance of Statute, provisions not of the, directory, SO. 255. Substantive Crime (see Accessory After, Attempt), meaning, OL. i. 696 ; sometimes in nature only attempt, OL. i. 728, 729, 734. Successive Imprisonments, GL. i. 953, CP, i. 458, 1327. Successive Offences. See Offence Repeated. "Such," rejecting, from statute in inter- pretation, SO. 243. "Suffer" animals at large, SO. 223, 1137. Suffering Cruelty (see Cruelty to Animals), how indictment for, DP. 360. Suffolk, limits of county of, OL. i. 147. Suicide. See Self-murder. Suing State, not without consent of statute, and how interpreted, SO. 103 ; effect of repealing consenting statute, SO. 178 a. Suit, Suits (see Action, Champerty AND Maintenance, Civil Action, Jeopardy, Lawsuit, Prosecutions, Threat to Indict), bringing fictitious, &c. contempt, CL, ii. 253 ; pending, law repealed, finished under new law, SO. 181. Suit on Recognizance, how, OP. i. 264 m. Sum (see Extortion, Gaming, Vari- ance, &c.), how in bribery, DP. 250, note ; extortion, OP. ii. 358-361 ; betting on election, SO. 944, 949 ; gaming, SO. 899 ; embezzlement, OP. ii. 321 ; in forgery, instrument altered as to, OP. ii. 442. 838 Summary Conviction (see Convic- tions, Record), on view, for forcible entry, OL. ii. 493 ; early statute as to, OP. i. 723, note ; distinguished from indict- ment as to allegations, OP. i. 639, note ; for disturbing meeting, CP. ii. 300. Summary Procedure (see Proced- ure), not favored by construction of statute, SO. 114; against officer, how statute construed, SO. 119; to enforce municipal by-laws, SO. 404. Summary Proceedings for contempt of court, DP. 317-321. And sec Con- tempt OF Court. Summary Process, when not taken away by subsequent statute, SO. 126, note ; indictment and, may be concur- rent, SO. 170; statutes subjecting to, construed strictly, SO. 193. Summing Up (see Trial), of counsel, CP. i. 974-975 6; of judge, CP. i. 976- 982; reading books in the, OP. i. 1180; judge's, in homicide, CP. ii. 638 a. Sunday (see Lord's Day), arrests on, OP. i. 207, 249, note; how in computing time, SO. 110 c; allegation of, DP. 85, 86. Sunday School, disturbing, OL. ii. 305 a. Superior not included by general words of statute following enumeration of in- ferior, SO. 246 a. Superior Courts (see Inferior Courts), how distinguished from infe- rior, CP.i. 236-239; caption in, CP. i. 658, 664, DP. 54-56. Supernatural Po'wrer, false pretence of having, CL. ii. 429 a. Supersedeas, whether to warrant of commitment, CP. i. 235. Supervision, judicial, over indictment, DP. 14. Supervisor of Highways, whether an "officer," SO. 271 a; how proceed against, for non-repair, CP. ii. 827. "Supply or Provide," meaning, SO. 747, note. Supplying Orders, whether is ped- dling, SO. 1076. Suppressing Fraud, statutes for, con- strued liberally, SO. 192, 199. Sureties (see Appearance Bond, Bail, Recognizance), official malfeasance of discharging offender without sufficient, CL, ii. 974; surrender by, CP. i. 250, note ; found insufiBcient, effect of, in bail, CP. i. 263 a. sus GENERAL INDEX TO THE SERIES. TAS Sureties of Peace (see Punishment, Sentence), concerning, OP. i. 229; for- feiture of recognizance, CP. i. 264 n ; sen- tence to find, CP, i. 1312. Surgeon (see Homicide, Medical Mal- practice, Physician) in duel, offence of, CL. ii. 311. Surgeon Unlicensed, offence of, DF. 999. Surgical Operation on animal not "cruelty," SO. 1112. Surname (see Name), concerning, OP. i. 684. Surplus Intents not take away effect of necessary intents, CL. i. 339, DF. 552- 556. Surplusage (see Indictment, Needless Averments, Unnecessary Matter), full exposition, OP. i. 477-484 ; to be avoided, DF, 2, 7, 227, 228 ; may be re- jected from indictment, CL, i. 810; of intents, not vitiate, OL. i. 339, 340, and see DF. 5+9-556 ; of wrongful act, CL. i. 774, 775 in allegation of time, CP. i. 388 ; not render indictment ill, CP, i. 436 ; rejecting, to cure duplicity, CP. i. 480 ; variance, CP. i. 485-487 ; not malce in- dictment double, OP, i. 440 ; in repugnant averments, CP. i. 491 ; disjunctive allega- tion as, CP. i. 592 ; allegation showing no offence committed is not, CP, i. 621 ; rejecting negative averment of, CP. i. 640 ; in assault and battery, OP. ii. 65 ; "against form of statute" as, SC. 164; when reject statute in indictment as, SC. 401 ; so alleged as to require proof, SO. 443 ; in averment of value, proof, SC. 949. Surprise, ground for new trial, CP. i. 1280, 1281. Surrender, of fugitives from justice, full exposition, OP. i. 219-224 b ; of principal by bail, CP, i. 250. Surrendering, bankrupt not, DF. 235. Surroundings, effect of, on interpreta- tion of statute, SO, 50, 74-77. Surveyor of Roads, See Supervisor OF Highways. Suspected Person. See Arrest. Suspense, effect of validity of statute being in, SO. 151. Suspicion (see Arrest, Search-war- rant), breaking doors to arrest on, OP. i. 196, note; searching prisoner on, CP, i. 210. Sustenance. See Necessary Suste- nance. Siwans, when subjects of larcenv, CL. ii. 773. Swearing (see Blasphemy and Pro- paneness. Profane Swearing), direct allegation of, in perjury, CP. ii. 912. And see Pkejurv. Swearing Jury. See Impanelling, Oath. Swindling, obtaining horses by, OL. ii. 148, note; offence of, in Texas, SC. 413, DF. 430. Swine (see Hog, Pig), how construe by- law against, going at large, CL. i. 832 ; statute, SC. 223 ; keeping of, proceedings to have, sold, SO. 169. Swine-yard (see Pigsty) may be nui- sance, OL. i. 1142. Sword a " dangerous weapon," SC. 320. " Sword in Cane," statute against carry- ing, SO. 786. Sworn Testimony (see Testimony), effect of admissions in, OP. i. 1255- 1257. Symbol or Token (see Cheats, Palsb Pretences, False Token), necessary in cheat, CL. ii. 142 et seq. ; if false, is false pretence, OL. ii. 416; how allege, OP, ii. 158, DF. 272-277. System of Laws (see One System, Together), statutes interpreted into one, SC. 82, 86-90. Tables. See Gaming. " Take " in indictment for larceny, CP. ii. 698, DF, 582, note. Taking (see Larceny, Seduction) in seduction, what, SC. 634 ; how indict- ment, SO, 644, DF. 945. Taking up Estray (see Animals, Es- tray. Stray), offence of wrongful, SC. 462-464. Taking from Person (see Larceny) in rolibery, CP. ii. 1006. Taking Notes, before inferior courts, CP. i. 726; superior, OP. i. 958, CL, ii. 259. Tallow Furnace, nuisance, OL. i. 1142, note. " Tame Pigeon " descriptive of thing in larceny, CP, ii. 706. Tampering with Witness, offence of, OL. i. 468, 695, OP. ii. 897, DF. 852 ; as evidence of guilt, CP, i. 1251. Tannery may be nuisance, CL. i. 1 143. " Taster," cheating in sale of cheese by, CL. ii. 449. 839 TEM GENEBAL INDEX TO THE SERIES. TEE "Tavern," meaning, SO. 297. See Inn, Innkeepek. Tax, Taxes, Taxation (see Evading Tax, Municipal Taxation, Revenue Laws), omission to pay, forfeiting prop- erty, CL, i. 821 ; smuggling, DF. 972 ; va- rious evasions of, DF, 973, 974 ; how tax laws construed, SO. 195 ; on gaming, when constitutional, SO. 856 ; on lottery, 8C. 957 ; on a business, SO. 1098 ; is not a license of it, SO. 991 ; acts providing for, qualify one another, SO, 156 ; of liquor selling in States, by Congress, SO, 991. Tax-collector is " public officer," CL, ii. 349. Tax Buplicate not " record," CL. ii. 570. Tax and other Revenue Laws (see Public Revenue, Revenue Laws, Unlicensed Business), /u?/ exposition, DF, 970-975; and see CL, i. 351, 352, 486-488, 821, 824, ii. 225, 349, OP, ii. 245, 407, SO. 99, 120, 156, 195, 856, 957, 991, 1098. Tax Sale, statutes for redemption after, construed liberally, SO. 120. Taxation of Costs, essential to costs, CP, i. 1320; how payment enforced, OP, i. 1321. Teacher and Pupil (see Chastisement, Domestic Relations, Schoolmastek, Schools), criminal law of, CL, i. 886 ; teacher in loco parentis to pupil, OL, i. 882 ; disturbing school, CL, ii. 306, 307. Technical Meaning (see Legal Im- port, Legal Meaning), when words have, in statute, SO, 99-101, 242-242 6. Technical Rules, how of, in criminal law, OL, i. 211. Technical Term, offence created by a, how Indictment, OP. i. 610, 629, SO, 416, 471, DP, 31, and see CP, i. 599, 600. Technical Words, in indictment, CP, i. 335 ; in statute, and how interpreted, SO, 96, 97, 99, 100, 204, 242-242 b. Teeth, whether injury by, is a " wound," SC, 314, 315. Temperance Laws, See Liquob Keep- ing and Selling. Temperance Meeting, disturbing, CL, ii. 302. Temporary Insanity, commonly ex- cuses, CL, i. 380 ; not when produced by drunkenness, CL, i. 400. Temporary Statute, effect of continu- ing a, SO. 187. 840 " Ten Clear Days," meaning of, in stat- ute, SC, 110. "Ten Days' Notice" in statute, how computed, SC. 107, 108. "Ten Similar Pieces" (see Similar Pieces), meaning, SO. 214. And see DF. 340, Coin, Counterfeiting. " Ten Years " (see Carnal Abuse), car- nal abuse of child under, DF. 907. Tenant, arson by, CL. ii. 13, 17, note; landlord ejecting, by force, OL, ii. 490, note. Tenant in Common not resist entry by co-tenant, CL, ii. 500. "Tenement" in indictment for disorderly house, CP, ii. 276 o ; what a, in liquor nui- sance, SC, 1068 a. "Tenor" (see Substance), meaning, averments by, proof of, CP. i. 559, 561, 562 ; when instrument is in foreign lan- guage, CP. i. 564, 565, DF, 619, note ; averred, must be proved, CP, i. 488 ; in forgery, OP, ii. 403, 405, 462, DF, 455 ; in libel, OP, ii. 789, 790, DF, 619,626; in oral slander, CP, ii. 808, DF, 633 ; in per- jury, CP. ii. 915 ; in threatening letters, DF, 977, note ; not necessary in solicita- tion to crime, OP, ii. 74, DF, 106 ; how in blasphemy and profaneness, CP, il. 123, DF. 241, 243; in false pretences, CP, ii. 178, DF, 419, 420 ; in challenging to duel, DF, 378-380. Tenpin Alley, whether nuisance, CL, i. 1136. "Tenpins" (see Gaming), meaning, SO, 99, note ; not game of chance, SC, 863. Tense (see Is), of the record, CP. i. 1349 ; in setting out private statute, DF, 132, note. Tent, not " dwelling-house," SO, 279 ; may constitute bawdy-house, CL, i. 1085. Term. See Close of Term. Term of OfBce, determining new, by old, SO, 87. " Term of Years," meaning, SC, 349 ; in forcible entry, OL, ii. 501. Termini of Way, whether allege, OP, ii. 827, 1045, 1051 ; if alleged, prove, CP, i. 486 ; in indictment for horse-racing, SO, 927. Terms as condition of amendment, OF. i. 715. Terms of Statute (see Words) to be followed in interpretation, SO, 72, 80, 81, 90, 93, 145, 146. THE GENERAL INDEX TO THE SEEIES. THI Territorial Limits (see Arms of the Sea, Bats, County, Jukisdiction, Foreign Country, Lakes, Locality OF Crime, River, Sea-shore, United States, &c.), of United States, full ex- position, CL, i. 102-108 ; ot States, full exposition, OL. i. 145-154, 184 ; statutes in general terms not given effect beyond the, OL. i. 109, 110, 115 and note, SO. 141. Territories (see United States), con- gressional jurisdiction over the, OL. i. 188 ; arrests in, and surrender from, OP. i. 223 6. Territory, treaty ceding, when takes ef- fect, SO. 32. "Terror." See Affray, Fbab, Rob- bery, To the Terror. Testimonial of Character, forgery of, OL. ii. 529. Testimony (see Evidence, Sworn Tes- timony), conspiracy to fabricate or sup- press, OL. ii. 219 ; oral, where statute re- quires writing, OL, ii. 1018; before grand jury, OP. i. 861 ; continuance to procure, OP. i. 951 a ; order and methods of de- livering the, OP. i. 966-966 c, ii. 231 ; absence of, subject of comment to jury, OP. i. 966 c ; may be written or oral, OP. i. 1050; in perjury, OP. ii. 928 ; conflict- ing, SO, 801 ; how indictment for perjury in the, at trial, DP. 875. Texas, larceny in, SO. 413 ; how indict- ment for it, DF. 609 ; swindling in, SO. 413. Theatre (see Actor, Disturbing Meet- ings), rights of audience at, OL. i. 542; note, ii. 216, 308, note; how indictment for conspiracy to hiss performance at, DP. 302 ; opening, on Lord's day, OL. ii. 951. Theatricals Unlicensed, offence of, DF 1000. " Theft," name for larceny in Texas, SO. 412-415, and see Larceny, Texas. Theft-bote, what is, OL. i. 710. " Then Being " in indictment for forcible entry, OP. i. 410. "Then and There" (see Antecedent, Jeffreys, Time and Place), in in- dictment, full exposition, OP. i. 407-414; in caption, OP. i. 665, note; in aiding and abetting, OP. ii. 5, note; in assault and battery, OP, ii. 57 ; in homicide, OP, ii. 535, 552, note ; in adultery, SO. 676 ; in continuing offences, DF. 84 ; in arson, DF. 186, note; in cheating, DF. 273, note; in conspiracy, DF. 286, note; in forgery, DF. 463, note ; in rape, DF. 905, note ; in other instances, DF. 106, 109, 140, and the several notes. "There" refers to what, OP. i. 512, and see 379. " There Situate,'' in indictment for ar- son, OP. ii. 41, DF. 179, note, 187, note; for bawdy-house, OP. ii. Ill ; burglary, OP. ii. 135, DF. 253, note; exposure of person, OP. ii. 351, note; forcible entry and detainer, DF. 444 and note; mali- cious mischief to realty, DF. 724-726. See also OP. ii. 866, 1046, 1051. "Thereafter" (see Hereafter) in stat- ute as to punishment, SO. 184, note, see 183. Thief (see Larceny, Receiving Sto- len Goods), stealing from, OLi ii. 781, 789 ; whether allege name of, in indict- ment for receiving, OP. i. 483, ii. 982 ; competent witness against receiver, OP. ii. 988 a. "Thimble," " Thimbles and Balls," game of, SO. 865. Thing Bet, alleging the, in gaming, SO. 920, 921. Thing Obtained in false pretences and embezzlement, OP. ii. 188, 335. Things Favored (see Favored), how statutes interpreted as to, SO, 192. Things Odious (see Odious), interpre- tation of statutes as to, SO, 192. Things Stolen (see Goods), how de- scribe, in larceny, OP, ii. 699-712, DF. 590-610. Third Persons (see Injured Person, Name, Ownership), civil suit against innocent, in advance of criminal prose- cution, OL, i. 268; crime committed througlj, OL, i. 556 ; receiving husband's goods from wife, larceny, OL, ii. 873 ; in grand-jury room, OP. i. 861 ; arrest on charge by, CP, i. 182 ; assisting officer in arrest, OP. i. 186; breaking house of, to arrest, CP, i. 204 ; mistake in alleging name of, CP, i. 677 ; presumption of in- nocence of, as against defendant, CP. i. 1106; tried with husband or wife, one not on trial as witness against, OP. i. 1151 ; forged instrument in hands of, OP, ii. 433 ; testimony of, to conversations between husband and wife, OP, i. 1155 ; when admissions of, receivable in evi- dence, OP, i. 1248, ii. 633 ; aiding in po- 841 TIM GENERAL INDEX TO THE SERIES. TIT lygamy, SO. 594 ; averring names of, iu adultery, SO. 673, in gaming, 894, 895. Threat not excuse killing, CL. i. 348, and see ii. 704 ; not assault, CL, ii. 25. Threat to Indict, extorting money by, CL, ii. 407, and see Prosecution. "Threatened" in statute against cari-y- ing weapons, SC, 788 b. Threatening Letters and Threats, full exposition, CL, ii. 1200, 1201, OP, ii. 1024-1029 6, DF. 976-980; in what county indicted, CP, i. 53 ; order for in- spectiun of letter, OP, i. 959 d ; " name subscribed," in statute against, SC, 228; to accuse of solicitation to sodomy, SC, 242 ; what an uttering of, SC. 306. Threatening Notice, request to post, in- dictable, CL. i. 767. Threatening Officer of election, statute construed, SC, 223. Threats (see Assault, Homicide, Un- coMMCsiCATED Threats), of present death, whether excuse crime, CL, i. 347, 348 ; resulting in death, how punishable, CL, i. 562 ; by defendant, presumptions from, CP, i. 1110; in arson, CP. ii. 53 ; of deceased in homicide, evidence of, CP, ii. 609-611, 619-627; procunng entrance by, as breaking in burglary, SO, 312 ; to judge in open court, how indictment, DF. 326; to party to induce relinquishment of verdict, DF, 327 ; to prevent witness appearing, DF, 328. Three Sales, whether make common seller, SC. 1018. " Threshing-machine,'' meaning, CL, ii. 986 ; what to " destroy " a, SC. 214. Throat. See Cutting Throat. "Thrust," meaning, SC. 315. "Ticket" (see Passenger Ticket) in- cludes a, of foreign lottery, SC. 959 ; for lottery, how indictment for selling, SC. 962, DF 677 : having, for sale.'DF, 678 ; advertising, DF, 679. Tigris River (see Navigable River) in China, whether " high seas," SO. 304. " Till." See Until Timber (see Cut Down, Tree), mean- ing, SC, 449; indictment for malicious mischief to, DF. 725, 726, and see Mali- cious Mischief. Time (see Computation of Time, Con- tinuando. Date, Daytime, Night, Then and There), allegation and proof of, futl exposition, CP. i. 386-406 ; repetition of, and place, full exposition, 842 CP, i. 407-414 ; whether act and intent must concur in, CL, i. 207, 642, 692; men do as they will with their, CL, i. 515, 516 ; in sentence to imprisonment, CP. i. 1310 ; in capital sentence, OP. i. 1311 ; how compute, in sentence, SO, 218 ; inadequately alleged, surplusage, CP, i. 440 ; how far prove as laid, CP, i. 488 a ; allegation and proof of, in bur- glary, CP, ii. 131-1,34; in solicitation to burglary, DF, 258 ; allegation of, in hom- icide, CP, ii. 530-533, bf>2, note; connec- tion of, with place, CP, ii. 535 ; proof of, in libel, OP, ii. 802 ; allegation of, in violation of Lord's day, CP, ii. 815, DF, 663 ; in nuisance, CP, ii. 866. Time of Day, for making arrests, CP. i. 207 ; for executing search-warrant, CP. i. 243 ; form for alleging, DF. 86, 87. Time and Place (see Place, Then and There), how jointly alleged by "then and there," OP, i. 407-414 ; how of court in record, OP, i. 1351 ; forms for alleging, DF. 80-90 ; how allege, in conspiracy, DF, 285, note, 286, note. Time in Written Laiws (see Compu- tation OF Time), when statutes take effect, SC, 27-31 a ; treaty, SC, 32 ; of enactment, considered in Interpretation, SC, 75 ; how compute, in construing stat- utes, SC. 1 04 a-1 1 1 ; not essential in direc- tory statutes, SC, 255 ; generally direc- tory as to official acts, SC. 255 ; how com- puted in statutes of limitations, SC, 259. Tippling-house, Tippling-shop (see Disorderly House, House of En- tertainment, Liquor Keeping and Selling, Liquor Nuisance, Liquor and Tippling Shops), the common-law offence of keeping, futl exposition, OL, i. 318, 1113-1117, DF, 817, 818; the statu- tory offence, full exposition, SC. 1064- 1067, DF. 819-822, " tippling-houses " may include one " tippling-house," SO. 213; lawful at common law unless dis- orderiy, SC. 984, 1064 ; by-law prohibit- ing, SC, 997 ; defined, SO, 1065. Title (see Land, Pretended Titles), injuring property under claim of, CL, i. 298, 576 ; not drawn in question in for- cible trespass or entry, CL. ii. 500, 501, 517; plaintiff needlessly making, CP, i. 482, note. ' Title of Statute (see Written Laws), futl exposition, SO, 44-47 ; constitutional requirement of one subject expressed in, TOM GENERAL INDEX TO THE SERIES. TEA SO. 36 a ; consulted in construing stat- ute, SO. 82 ; same in strict interpretation as in liberal, SO. 200 ; reciting, in plead- ing private statute, SO. 399 ; pleading private statute by the, SO. 402. See also OP. i. 634, 713. "To " for " by" in indictment, OP. i. 546. "To the Common Nuisance" (see Nuisance), the conclusion, full ex-posi- tion, OP. ii. 862-864, DF. 775 ; in barra- try, OP. ii. 101 ; common scold, OP. ii. 200 ; exposure of person, OP. ii. 353 ; ob- scene language, OP. ii. 810 ; drunken- ness, SO. 977. "To the Damage," "To the Great Damage," in indictment, needless, OP. i. 647, DF. 48; in assault and battery, OP. ii. 57; in nuisance, OP. ii. 862. " To the Displeasure of God " not necessary in indictment, OP. i. 647, DF. 48. " To the Evil Example " not necessary in indictment, OP i. 647, DF. 48. " To the Obstruction of Justice " not necessary in indictment, OP. i. 647. " To the Terror," conclusion of, in indict- ment for riot, CL. ii. 1147, OP. ii. 997, DF, 929 : in indictment for affray, OP. li, 16, DF. 925. Together (see Coststruing Laws To- gether, One Ststem), laws to be in- terpreted, SO. 82, 86-90, 98, 101, 113 a, 113 6 et seq., 115, 116 ; same as to effect of the laws, SO. 123 ; reasons of doctrine, SO. 124, 188 ; construing statutes, to pre- vent repeal, SO. 156; word, in statutes against open lewdness, SO. 697, 699, 702- 708, 721 ; word, must be covered by alle- gation, SO. 702, 706, 721 ; in indictment for horse-racing by two, SO. 927 ; for liv- ing in adultery, &c., DF. 152, 153 ; in in- dictment for affray, OP. ii. 20, 21. Token. See False Token, Symbol or Token. Toll-bridge (see Bridge, Wat), whether lighting included in keeping, in repair, CL. ii. 1280. Toll-dish. See False Toll-dish. Toll-gate (see Evading Toll), forcibly passing, without paying toll, SO. 313, note. Tolls (see Evading Toll), offences as to, full exposition, DF. 981-985, and see SO. 313, note. Tombs (see Malicious Mischief, Sep- ulture), defacing, OL. ii. 984, 992. " Tool," meaning, OL. ii. 288, SO. 319. Tools of Crime, in burglary, as evi- dence, OP. ii. 151 ; possessing, for coun- terfeiting, DF. 342, 343 ; procuring, for making counterfeit coin, OL. ii. 286 ; having, in forgery, CL. i. 204; exhibit- ing, at trial, OP. i. 965, 982 a. " Torture," in statute, how in indictment, OP. i. 629, SO. 1116; in malicious mis- chief to animal, SO. 447 ; in cruelty to animals, SO. 1108, 1116. Torturing Animal (see Cruelty to Animals), how indictment for, DF. 349. " Touch " in assault and battery in Indi- ana, DF. 205. Town (see Charter, Cokpoeation, Lo- cality, Municipal By-laws, Nui- sance, Selectmen, Village, Walled Town), meaning, SO. 299 a, 1011; in- dictable for non-repair of public ways, OL. i. 419 ; alleging the, in indictment, OP. i. 365, 366, 370-375 ; alleging, with- out county, OP. i. 378 ; whether inhabitant of, juror, OP, i. 907 ; indictment against, for not maintaining school, DF, 755. ToTvn Agent (see Agent), whether an "officer," SO, 271 a; for liquor selling, when not protected, SC. 1002. Town-lots, scheme for disposing of, lot- tery, SC. 956. Town Meeting (see Disturbing Meet- ings, Secular Meeting), disturbing, indictable, OL. i. 542 ; the procedure, OP, ii. 299, DP. 368. Trade, Trades (see Exercising Trade, Noxious and Offensive Trades, Nuisance, Offensive Trades, Re- straint OF Trade, Tricks of Trade), exercise of, OL, i. 508 ; con- spiracies to injure, CL, ii. 231 ; statutes regulating, CL, li. 164 ; joinder of defend- ants for unlicensed working at, OP, i. 470 ; whether by-law may restrain, SO, 20, 22 ; how construe statutes in restraint of, SC, 119, old statutes as to, 196; stat- utes against exercise of, by unqualified persons, SO, 239. " Traitorously " in indictment for trea- son, OP, i. 534, ii. 1035, DP, 987, note. Transaction, joining more than one, in one indictment, CP, i. 449-453; giving evidence of only one, OP, i. 457 ; com- pelling prosecutor to elect on what, to proceed, CP, i. 459 et seq. ; evidence of entire, admissible, CP. i. 1 1 25 ; confes- sions in conspiracy after, ended, OP, ii. 843 TRE GENERAL INDEX TO THE SERIES. TRE 230 ; one, covered by many inhibitions, SO, 143 ; effect of making separate crimes of one, SO. 172 ; contrary to statute, void, SO. 254 ; allege only one, in one count, DF. 21. Transcript in change of venue, OP. i. 73, note. Transfer of Stock, forgery of a, CL. ii. 529. Translation (see Fobeigk Language), to be made of instrument in foreign lan- guage, OP. i. 564, 565 ; in what form, DF. 619, note. Transportation, not a punishment with us, OL. i. 939 ; motion for new trial by one sentenced to, OP. i. 276, note. Transporting Animal, how indictment for cruelly, DF. 359, and see CEUELiy TO Animals. Transporting Liquor for unlawful sale, SO. 1055 ; indictment, DP. 646. Trap-door, lifting, whether a breaking, SO. 312, note. Travail, declarations in, as evidence in rape, OP. ii. 971. Traveller, defined, CL, ii. 964, SO, 788 a in merchandise, &c., CL, ii. 341, 345, 349 for liquor orders unlicensed, DF. 657 entertaining one not a, on Lord's day, DF. 666. Travellers Meeting, not obeying law of road, CL, ii. 1277 ; how the indictment, DF. 1020. "Travelling," meaning, CL. ii. 964, SO. 788 a. Travelling on Lord's Day, CL. ii. 960, 964, DF. 667. Travelling Trader See Hawkers and Peddleks. Treason (see Felony, Overt Act, Per- suading TO Enlist, Petit Treason, Rebellion, Sedition, Traitorous- ly), full exposition, OL. ii, 1202-1255, OP. ii. 1030-1041, DF. 986-989; in gen- eral of, OL. i. 177, 456 ; minute acts of assistance in levying war, CL. i. 226 ; concealing another's, OL. i. 226, see Mis- prision ; acting under compulsion in, OL. i. 347, 348 ; marital coercion in ex- cuse of wife, OL. i. 358, 361 ; infancy, OL. i. 369 ; corporation, OL. i. 422, 423 ; a species of attempt, CL. i. 437, 440 ; treasonable purpose need not succeed, OL. i. 437 ; must be act in nature evil, CL. i. 440 ; is also felony, CL. i. 612, 613 ; one's responsibility for acts of co-con- 844 spirators, OL. i. 638 ; principals of first and second degrees, CL. i. 655 ; by violat- ing king's companion, CL. i. 659 ; acces- sories before in, CL. i. 681-684 ; after, CL. i. 701-704 ; under United States con- stitution, CL. i. 703 ; State constitutions, OL. i. 704 ; misprision, anciently treason now misdemeanor, CL, i. 717 ; attempts, OL, i. 759, 772 ; forfeiture, &c., CL, i. 966- 977; procedure, old trial for, OP. i. 15- 19 ; arrest for, by private persons, OP. i. 164-172, 186, by officers, 173, 181 ; bail in, OP. i. 255, 256 ; several overt acts in one count, CP, i. 433-437 ; conclusion of indictment for, CP, i. 647 ; accessories before and after, CP. ii. 2 ; counterfeiting guineas, OP. ii. 251 ; rescuing, harboring, &c., in statutory, SO. 136 ; statutory, has common-law incidents, SO. 139 ; old pro- visions as to place of trial in, SO. 159, note ; " persuading to enlist " in statu- tory, SO. 225 ; how statutes allowing counsel in, construed, SO. 227 ; how in- dictment against instigators of, and help- ers after the fact, DF. 119-122; sedition in nature of, DF. 942. "Treason, Felony, or Breach of Peace," meaning, OP. i. 207, SO. 198. Treasure-trove (see Stray, Waif, Wreck), concealment of, CL. ii. 875 ; larceny of, OL. li. 876. Treasurer (see County Treasurer), whether " officer," SC. 271 a ; of Friendly Society, in embezzlement, OL. ii. 335 ; of guardians of poor, CL, ii. 349 ; in extor- tion, OL, ii. 404. Treasury Warrant not " money,'' SO, 346. Treatises (see Books, Reports), the leading old, in criminal law, OL, i. 86- 90. Treaty, Treaties (see Law op Nations, Written Laws), is law, SC, 1 1 a ; nature of, who interpret, and precedence among laws, SO. 13-14; when takes effect, SO. 32 ; requiring legislation, SO. 14 ; word in, may have various meanings, SO, 95 a ; interpreted by subject, SO. 98 a ; bounda- ries established by, CL. i. 107, 108 ; who make. States not, CL, i. 183; effect of war on, SO. 13 a, 14; surrender of fugi- tives under, CP, i. 224-224 b. Trebucket. See Ducking. Tree, Trees (see Cut Down, Destroy, Malicious Mischief, Timber), mean- ing of word, CL. ii. 986 ; carrying away, TBI GENERAL INDEX TO THE SERIES. UNA not larceny at common law, OL. ii. 763 ; standing on margin of way, whether nui- sance, OL. ii. 1277 ; malicious mischief to, SO. 443-447, DP. 725, 726. Trespass (see Asportation, Civil Teespass, Forcible Trespass, Lar- ceky), in foreign country, may be sued here, OL. i. 140 ; meaning, in criminal law, OL. i. 625 ; ab initio, license abased, OL. i. 208 ; corporation may be sued in, OL, i, 422; not alone indictable, OL. i. 538 ; statutes dispensing with, in larceny, SO. 417-424 ; in larceny of animals, SO. 428 ; in common-law larceny, OL. ii. 799- 839. Trespass to Lands (see Heal Estate), full exposition, DF. 990-995. Trespassing Animal (see Animals), shooting, as malicious mischief, SO. 437. Trial (see Arrest, Binding Over, Con- tinuance, Course op Trial, Instruc- tions, Jury Trial, Mistrial, Ob- jecting, Order, Petit Jury), prepa- rations for the, full exposition, OP. i. 950- 959/ (namely, time and order of bring- ing on, OP. i. 950 a-950 d ; continuances, OP. i. 951-951 c ; effect of delays, OP. i. 951 6f-951/; arrangements within court room, OP. i. 952-959 ; other preparations such as copy of indictment, list and at- tendance of witnesses, notice to produce papers, order to inspect evidence, &c., OP. i. 959 a-959/) ; the trial, fill exposi- tion, OP. i. 959 5^-982 a (namely, order of the proceedings with some particulars, OP. i. 960-966 rf; the openings to the jury, OP.i. 967-973 ; the summings up by counsel, OP. i. 974-975 b ; the charge of the judge to the jury, OP. i. 976-982 a] ; constitutional guarantee of, by jury, OP. L 87, 890-894; presence of defendant, OP. i. 265-277 ; separate, by order of court, OP. i. 450, 472, 1018-1026, 1041, 1043 ; how the pleas are tried, OP. i. 752- 755 ; court may refiise, OP. i. 759 ; when cause ready for, OP. i. 950 a-950 d ; more defendants than one, OP.i. 1017-1041; more indictments than one, OP. i. 1042- 1045 ; separating witnesses at, OP. i. 1 188-1 1 93 ; removing cause for, to higher court, DF. 1081 ; meaning of word, SO. 347 a. Tricks of Trade (see False Preten- ces) as false pretences, OL. ii. 447-457. Triers, doctrine of, as to jury, OP. i. 905, 906, 909, note. Tripe-boiling, how indictment for nui- sance of, DF. 829. See Injurious or Offensive Air. Troops, whether States may keep, OL. i. 183. Trover maintainable for things bought with stolen money, OP. ii. 758. Truancy, offence of, DF, 1008. "True Bill," indorsement of, by grand jury, OP. i. 697-701. Trunk, breaking, not burglary, OL. ii. 98. Trustee, embezzlement of things vested in, OP. ii. 343 ; neglecting to make con- tract for repair of road, homicide, OL. ii. 668. Truth, in defence of libel, OL. ii. 918-921 ; manner of pleading the, DF. 639 ; effect of exhortation to tell the, on confession, OP. i. 1227. Truth and Veracity of injured female testifying to rape, OP. ii 964. Turkeys are subjects of larceny, OL. ii. 774 ; how the indictment, OP. ii. 706. Turnpike Roads (see Way), obstruc- tion of, indictable, OL. ii. 1270. Turpentine, false pretence as to quality of, in sale by sample, OL. ii. 449. Turpentine in Boxes, subject of lar- ceny, OL. ii. 765. "Twelvemonth," a, meaning, SO, 105. " Twelve Months," old meaning of, SO. 105, note. Twice in Jeopardy. See Jeopardy Repeated. Two or More, indictment for assault on, DF. 221 . Two Statutes, indictment on, DF. S.'ie. Two XTtterings (see Uttering) on same day, &c., how indictment for, DF. 339. " Two Years " (see Computation op Time), meaning in limitations statute, SO. 259. TTItimate Destination in embezzlement and larceny, OL. ii. 368, 828, 829, 831, 855. Ultimate Good, intent to promote, by one intentionally violating law, OL. i. 341. Unanimous, petit jury to be, OP. i. 897, 898 ; how as to grand jury, OP. i. 854, 855. Unavoidable (see Necessity), no crime to do what is, OL. i. 346. 845 um GENERAL INDEX TO THE SERIES. UNL Unborn Child, how allege conspiracy to murder, DF. 287, note, and see 526, 527. TTncommunicated Threats (see Theeats) from deceased, in homicide, OP. ii. 609-611, 619-627. Unconstitutional (see Constitittion, Constitutional Law, Written Laws), statutes void as being, SO, 33- 37 ; pronouncing statutes, SO. 91, 104 ; "inconsistent" in, statute, Sd 34, 152. Under Officers included in word " crew," SC. 209. "Under Promise of Marriage" in statute, how allegation, SC. 646. Undertaking (see Fokgekt), for pay- ment of money, &c., what, OL. ii. 563, 785 ; procedure for forgery of an, OP. ii. 473, 474. " Undertaking for Payment of Mon- ey," meaning, SO. 339, and see last title. Underroriters, See iNsnKANOE. Unduly Granted license not protect holder, SO. 1001. Unfair Ground, assuming, effect in crim- inal law, OL. i. 252, 532, 545, 550, 570, 574, 581, 587. Ungrammatical (see Bad English, False Grammab), no objection that indictment is, OP, i. 348 et seq., 511. Unhealthy Food. See Noxious and Adulterated Food, Unwholesome Food. Uniform La'ws, constitutional provisions as to, SCi 36 6, note. Uninhabited Dwelling (see Dweli.- ing-house), arson of an, DF. 182. Unintended Result following intended act, full exposition, OL. i. 323-336. United States (see Constitution of United States, Government, Offi- cers, State, State and, Territorial Limits, Territories), boundaries of, OL. i. 102-108 ; crimes committed beyond limits of, OL. i. 109-123 ; within limits of, exemptions from criminal laws of, OL. i. 124-135 ; jurisdiction of, within State limits, 01. i. 156-158; source of author- ity, OL. i. 156 ; jurisdiction beyond State limits, OL. i. 158, 182-188; over places ceded by States, OL. i. 159, 203; when has complete jurisdiction over States, OL, i. 161-171 ; in other cases within State limits, OL, i. 172-181 ; same act offence against State and, OL. i. 178, 987 ; right of, to appropriate persons to exolu- 846 sive service, OL. i. 180; whether has a common law and what, OL, i. 1 89-203 ; treason against, OL. i. 456 ; in what lo- cality crimes against, prosecuted, OP. i. 64-67, 223 6 ; bail by commissioner of, OP. i. 226; not pay costs, CP. i. 1315; whether is "person," SO. 212. United States Courts (see Court), powers of, as to constitutional interpreta- tion, SO. 35 b ; enforce State laws, OL. i. 181, 194-196, ii. 102^ ; procedure in, OL. i. 194; whence jury, OP, i. 375; writ of error, CP. i. 1365. United States Mail. See Postal Of- fences. United States Statutes, whether give jurisdiction to State courts, SO. 142. United States Treasury Notes, whether " goods and chattels," SO. 345. United States Treasury Warrants not " money," SO. 346. Unity of Meanings, statutory inter- pretation should regard the, SC. 94, 95. Unknown (see Name Unknown, Ne- cessity), allegation where thing is, OP. i. 495-498, 546-553, 680 ; where one of the conspirators is, OP. ii. 225, DF, 285, note ; where description of goods in lar- ceny is, OP. ii. 705 ; where instrument in abortion is, DF. 142. ^ Unknow^n Means, how allege, in in- dictment for murder, DF. 520. "Unla-wful" (see Contrakt to Law), meaning in law of conspiracy, OL. ii. 172, 178, DF. 283, 293-303, and see OL. ii. 235, note ; in indictment for polygar my, SO. 602 a, 603 ; for gaming, SO. 909 ; as applied to gaming, SO. 859, 860. Unla'wrful Assembly (see Affrat, Riot, 'Rovt), full exposition, OL. ii. 1256- 1259, DF. 926-930; punishable, three or more persons, CL, i. 534 ; compared with riot and rout, OL. ii. 1150, 1151 ; statute making proceedings summary, OL. ii. 54. Unla-wful Arrest. See Arrest, Hom- icide. Unlawful Brokerage, averments, OP. i. 580. Unlawful Combination (see Combina- tion, Conspiracy), confessions of per- sons acting in concert, OP. i. 1248, 1249; acts pursuant to, in proof of conspiracy, CP. ii. 228-230. Unlawful Detention, averring, in kid- napping, OP. ii. 691. UNN GENERAL INDEX TO THE SERIES. USE Unlawful Grame, tinlawful Gaming (see Gaming}, meaning, SO, 859 ; break- ing doors to arrest persons engaged in, OP. i. 197. Unlawful Herding (see Animals) of cattle, statute and indictment for, DF. 169. Unlavyful Means, when allege, in indict- ment for conspiracy, OP. li. 221, DF, 284, 293 et seq. Unlawful Oath (see Oath, Pbrjukt), offence of taking, DF, 853. " Unlawfully " (seeFELONionSLT, Ille- gally, Knowingly, Maliciously, Wilfully), meaning, SO, 732 ; equiva- lent for " illegally," SO, 840 ; not for " knowingly," OP. i. 613, SO, 732 ; whether word, necessary in indictment, OP, i. 503 ; in disturbing meetings, OP, ii 290 ; in false imprisonment, OP, ii. 367 ; in hom- icide, OP, ii. 543 ; in attempt to kill, OP. ii. 657 ; in malicious mischief, DF, 699, note ; in malfeasance in office, OP, ii. 833 ; in rape, DF, 906, note. " Unlawfully and Contemptuous- ly," in malfeasance in office, OP, ii. 833. Unlawfully Entertaining (see Lord's Day), how indictment for, on Lord's day, DF, 666. , " Unlawfully and Maliciously " not supplied by " feloniously, wilfully, and maliciously," OP. i. 613. Unlawfully Together, persons being, crime by one, OL, i. 634. Unlicensed Business (see Dogs, Hawkers and Peddlers, Liquor Keeping and Selling, Liquor and Tippling Shops, Lotteries, Rev- enue Laws), /k^Z exposition, SO, 1089- 1098, DF, 996-1001, and see the note to the title, Df . 996. Unlicensed Ferry (see Wat), joinder of defendants in indictment for keeping, OP, i. 469. Unlicensed Liquors. See Liquor Keeping and Selling. Unlicensed Vending, words repealing statute concerning, SO, 151. Unmarried (see Married Woman), false pretence of being, OL, ii. 445. Unnamed Child, how the allegation for homicide of, OP, ii. 507-510 ; how indictment for robbing grave of, OP, ii. 1010. Unnatural Offence. See Sodomt. Unnecessary Cruelty (see Cruelty TO Animals), how indictment for in- flicting, on animal, DF, 355. Unnecessary Forms. See Needless Averments. Unnecessary Matter (see Needless Averments, Surplusage) should not be inserted in indictment, OP, i. 528, DF. 10-24. Unofficial Persons (fee Private Per- son), power of, to arrest, OP, i. 164 et seq. Unskilfulness of Physician (see Drunkenness, Malpractice, Physi- cian), person made drunk by, OL, i. ' 405. Unstamped Instruments, forgery of, OL, ii. 540. Until (see From and Ajter) refers to what, in indictment, OP, i. 512; mean- ing in statute, SO, 111, note, 218 ; "or until" in statute, SO, 218. Unusual Statute to be strictly con- strued, SO. 265. Unwholesome Air. See Air, Inju- rious OK Offensive Air, Nuisance. Unwholesome Food (see Adulter- ated Milk, Pood, Meat, Noxious AND Adulterated Food, Nuisance, Selling), providing, selling, supplying, CL, i. 484, 491, 558, OP, ii, 868. Unwholesome Food and Water (see Water), nuisance of, OL, i. 491, 558, OP, i. 524, note, ii. 868, 878, DF, 834, 835. Unwholesome Water (see Water), rendering unwholesome, and supplying, OL, i. 491, OP, i. 524, note ; of river, OP, ii. 878. And see DF, 834, 835, and In- jurious OR Offensive Air. Unwritten Law (see Common Law), statutes interpreted with reference to the, OL, i. 304 ; legislation in aid of, OP, i. 920 Uplifted Hand, oath with, OP, ii. 913. "Upon the Person" in statutory as- sault, whether imply a battery, DF, 217. Usage (see Custom), as establishing pro- cedure of courts, OP. i. 7 ; in statutory interpretation, SO, 149, 150; expounding statutes by, SO, 101, 104; indictments should conform to, DF, 2. Use of word in statute gives statutory meaning, SO. 242. Useless Averments. See Needless Averments. 847 VAL GENERAL INDEX TO THE SERIES. VEN Using Estray (see Esteat), oflfence of wrongfully, SO. 462H164. "Usual Avocation," gaming not deemed, 01. 11. 955. See Lokd's Day. Usurping Office (see Obstkucting), OL. 1. 468, note ; how Indictment for, DF. 848, 849. Usury, full exposition, OL. il. 1260-1263, DF. 1002, 1003 ; alleging the usurious contract, CP. i. 580 ; bail, OP. 1. 254 ; In conspiracy, OL. 11. 195. Utter, Uttering (see Attempt, Coin, Counterfeit Money, Countekfeit- ING, FoKGEKY, Pass, Put Off, Two Utteeings), meaning, OL, il. 605, 607, SO. 306 ; " show forth in evidence " not an equivalent, SO. 309 ; a species of at- tempt, OL. 1. 437. SO. 306; when wife liable for, OL. i. 359 ; drunkenness as excuse for, CL. i. 412 ; as false pretence, OL. ii. 430 ; forged instruments, OL, li. 604-608, OP. ii. 425, 445-460 ; coin, CP. ii. 260, DF. 331, 337-340; counterfeit coin at gaming-table, OL. i. 765 ; having other in possession, &c., OP. ii. 263, 264, DF. 340 ; joining allegation of, in for- gery, DF. 462 et seq. ; acquittal of for- gery no bar to Indictment for the, CL. i 1066 ; no, essential to forgery, CL. ii. 602. " Utter and Publish," CP. ii. 453. " Utter or Tender," OP. ii. 460. Utterances of Deceased, evidence of, in homicide, CP. ii. 609-627. Uttered and Put Off (see Pot Off), meaning, CL. 11. 288, note. Vaccinating, how indictment for not, DF. 514. Vagabond and Rogue, Vagabonds (see Gypsies, Wandering Mariners, &c.), offence of being, CL. L 515, DF. 1009. Vagrant, Vagrancy, offence of, CL. i. 515, 516, DF. 1004-1010; entertaining, not indictable, CL. i. 706. " Valuable Security," meaning, CL. il. 481, 785, SO. 340. "Valuable Thing" (see Embezzle- ment, Forgery, Larceny, Thing Bet), meaning, CL. Ii. 480, SO. 346, note ; how allege, SO. 900, DF, 397, note, 492 ; statutory offence of betting, SO. 875, 900. Value (see Instrument, Punishment, Sum), thing taken in larceny must have, CL. a. 767; in robbery, OL. ii. 1162; 848 when indictment must allege, CP. i. 540, 541, 567 ; how proof correspond to alle- gation, OP. 1. 488 b ; allegation and proo of, in arson, OP. li. 48 ; burglary, OP, IL 146; false pretences, CP, ii. 177; homi- cide, as to instrument causing death, CP. 11. 505 ; larceny, CP. li. 713-717, 736, 751, SO. 427; malicious mischief, CP.il. 840, SC. 444, 445, DF, 699, 702, 709, 713, and the notes ; taking up and using es- tray, SO. 464, DF. 176, note; betting on election, SC. 945, 949 ; illegal marking of cattle, DF, 164, note; pound breach, DF. 174, note; conspiracy to cheat, DF, 290, note ; how verdict as to the, In lar- ceny, OP. il. 764 et seq. ; how statutes as to, in larceny, con.strued, SO. 127. Variance (see Indictment, Jeopardy), full exposition, CP, i. 484 a-488 e ; acquit- tal by reason of, as to second prosecu- tion, CL. 1. 1052; constitutionality of statute authorizing disregard of, CP. i. 101 ; between written Instrument and recital of it, CP. 1. 101, 562 ; between alle- gation and proof of time, CP. 1. 386, 401, 486 ; rejecting surplusage to avoid, CP. 1. 483, 485 ; in name, CP. 1. 572 ; in owner- ship, CP. 1. 582 ; between record of con- viction and pardon, CP. 1. 840 ; in name of grand juror, OP. 1. 885, note ; in recital of private statute, SO. 396, 400, 401 ; in color of animal, SC. 443 ; in name. In polygamy, SO. 604 ; as to Intent In false election answers, SO. 841 ; in gaming, SO. 896, 910, 911, horse-racing, 928 a. And for other instances see the several titles of offences. Vehicles, by-laws may regulate speed of, SO. 20, and see Fast Driving, Furious Driving. Venereal Disease, one with, having car- nal knowledge of girl, SO. 496. Venire de Novo. See New Trial. Venue (see County, Jeopardy, Looai.- ITY, Place), waiver as to, OL. i. 995 ; statutes authorizing omission to allege, CP. i. 105 ; how in record, CP. i. 1355 ; how construe statutes as to, SO. 198 ; how in indictment for polygamy, SO. 599 ; as to the, in general, full exposition, OP. 1. 45-67 ; allegation and proof of,_/uH expo- sition, CP. 1. 360-385 ; in connection with time, full exposition, CP. 1. 407-414. Venue, Change of, full exposition, CP. i. 68-76 ; doctrine of waiver as to, CL, i. 995 ; constitutionality of statutes regn- VBR GENERAL INDEX TO THE SERIES. VIO lating, CP, !. 50, 76, 106, 385 ; working severance of defendants, OP. i. 1023 a ; how appear in record, OP. i. 1355 ; and for various questions see SO. 112, 144, 198, 306, 587, 588, 599. Verb in allegation, OP. 1. 556. Verbal Errors. See Bad English, False Gkammar, &c. Verbal Obscenity. See Libbl and Slander, Obscene Libel, Obscene WoEDS, Words. Verbal Order, arrest under, OP. i. 178, 179. Verbal Slander (see Contempt of Court, Libel and Slander, Ob- structing Justice, Slander), rarely indictable, OL. ii. 905, 945-947 ; action- able, OL. ii. 905 ; against magistrates, corporations, &c, OL. ii. 946. Verbosity in Indictment, duty of courts to restrain, DP. 11-14, 38. Verdict (see Conviction, Defective Verdict, Embracery, General Ver- dict, Jeopardy, New Trial, Spe- cial Verdict), the, and its rendition, full exposition, OP. i. 1001-1016; effect of defective, on further proceedings, OL. i. 998, 999 ; guilty of part, not guilty of residue, 01. i. 1004 ; guilty of part, silent as to residue, OL. i. 1006 ; bail after, OP. i. 252, 253 ; whether receive, in pris- oner's absence, OP. i. 272-274 ; effect of, as to duplicity in indictment, OP. i. 442, 443 ; on several counts, OP. i. 450 1015, 1015 a; what defects cured by, at common law, OP. i. 707 a ; under statutes of jeofails, OP. i. 705 et seq. ; court order- ing, OP. i. 977 ; conduct of jury as to, CP. i. 998 a ; directed, to make party witness, OP. i. 1020, 1021 ; as to joint defendants, OP. i. 1036, 1037 ; new trial when judge not satisfied with, OP. i. 1277 ; against evidence, new trial, OP. i. 1278 ; repeal of law after, ends prosecu- tion, SO. 177; when "trial" includes steps after, SO. 347 a ; not always neces- sary to conviction, SO. 348, note; how indictment for threats to procure relin- quishment of, DP. 327 ; of manslaughter as appearing in record, DP. 1071 ; in concealment of birth, SO. 780. For the, in other offences, see their respective titles. Verdict of Guilty, whether bail after, OP. i. 252. Verification of information, CP. i. 713 ; of plea, OP. i. 757, 793. 54 Vessel (see Craft, Desertion, De- stroying Vessel, Forfeiture, Ma- licious Mischief, Ship or Vessel), crimes committed on board, OL. i. 112- 117, 118; not in our waters, OL. i. 114- 116; whether foreign, subject to our laws, OL. i. 130 ; destroying, OL. i. 570, note, DP. 721 ; forfeiture of, for master's pira- cy, OL. i. 826 ; of neutral's share in bel- ligerent, OL. i. 826 ; word, not include brig or steam-tug, SO. 246 a, note ; where indictment for offences on board, DP. 879 ; how allege place of offence, DP. 89. Vested Property. See Private Prop- erty. Vested Rights (see Forfeiture, Non- vested Rights, Pardon, Private Property, Private Rights, Retro- spective Laws, Right, Waiver of Right), doctrine chiefly of civil depart- ment, OL. i. 279 ; not applicable to crime, SO. 266; when right vests, OL. i. 911; not divested by pardon, OL. i. 910, 911, 916; unchangeable, CP. i. 115; maybe enforced by new remedy, SO. 84, 85 a; statute cannot divest, SO, 85 a; interpre- tation of law once made, not abandoned to divest, SO. I04o; not change with change of law, SO. 175 ; effect of repeal of statute on, SC. 177 a, 1 78 ; public ofiice is not, SC. 178o; prevail over statute of limitations, SO. 265. Vi et Armis. See With Force and Arms. Vice-Chanoellor, when conservator of peace, OP. i. 229, note. Victuals, furnishing felon with, OL. i. 695 ; preparing, on Lord's day, OL. ii. 961 ; attempt by numbers and force to bring down price of, OL. ii. 1 209. Videlicet (see Scilicet), use of, in criminal pleading, OP. i. 406 ; in alleging place, DP. 286, note; in malicious mis- chief, DP. 714, note. View, practice of, generally, OP. i. 965 ; in arson, OP. ii. 52. View of Liquor Selling, how indict- ment for obstructing the, DP. 659. Vill, alleging the, OP. i. 366, ii. 103, 286 a, and see Place, Special Locality. Village, "town" may include a, SO. 299 a. "Vinous Liquor," meaning, SO. 1010. "Violation of Decency," how allege, in drunkenness, SO. 980. 849 WAG GENERAL INDEX TO THE SERIES. WAR Violation of Sabbath. See Lord's Day. Violence (see Personal Violence), word, in allegation of robbery, CP. ii. 1004 ; confessions extorted by, CP. i. 1237. "Violently" (see Force, Force and Violence, Forcibly), whether equiva- lent to " with force," OP. i. 613 ; in in- dictment for assault with intent to rob, CP. ii. 84 ; for rape, CP, ii. 959, DF, 905, note. " Virtuous " in statute against seduction, SC. 639. See Sedhction. Visne (see Venue) for jury, formerly, OP. i. 365. Void, holding by-law, SC. 26, 34 ; statute, SO. 33, 34, 36 a, 38, 39 a-41 ; interpreta- tion not render statute, SO. 82, 98. Void, Voidable, doings of grand jury as, OP. i. 860. Void Marriage, penal consequences of intercourse under, SC, 662, 666, 718, 727. Voidable Marriage, as foundation for polygamy, SC. 589, adultery, 666 ; cohab- itation under, SC. 727. " Voluntarily," in indictment for arson, OP, ii. 43, DF. 179, note; for maiming, CP. ii. 857 ; confession made, or not, CP. i. 1232. " Voluntarily 'Withdrawn," meaning in polygamy statute, SC. 597. Vote (see Election Offences), casting more than one, OL. i. 471 ; election judges unlawfully receiving, SC, 838 ; how in- dictment for refusing to receive, DF, 390. Voter, Voters (see Bribery, Election Offences), bribery of, OL, ii. 86, DF. 248, 249 ; power of Congress to make, in special circumstances, OL. i. 1 69. Voting (see Double Voting, Election Offences, Illegal Voting, Quali- fied), what constitutes a, SC, 816 ; how allege act of, SC, 836, prove, 842 a ; out of State, SO. 811-813 ; poll list as evi- dence of one's, SO, 842 a ; by minor under mistake, OL. i. 307 ; without being qualified, OL, i. 471, note. "' Voucher," meaning, OL, ii. 785. Wafer may be adequate in seal of magis- trate, OP. i. 227. Wager (see Betting, Gaming), mean- ing, and how reprehensible, SC. 848, 852, 937; indictable. under statutes, SC. 852; 850 "bet" and, distinguished, SO, 870, 871 ; whether essential element in gaming, SC. 858, 860 ; one procuring another to, for his profit, SC, 881 ; civil action for, SC, 848 ; statutes restricting suits on, not re- trospective, SO, 84, note. Wages (see Conspikact, Labor, Labor Offences, Laborers), laws regulating, CL. i. 453-455, 508 ; forfeiting, for deser- tion of ship, OL. i. 821 ; conspiracies to raise and depress, CL. ii. 175, note, 189, 230-233, DP. 303-308. Wagon, malicious injury to, SO. 447. Wagon Roads (see Wat) are high- ways, CL. ii. 1266. Wagon Tracks as evidence, OP. ii. 754. Waif (see Stray, Tbeasure-teovb, Wreck), what, and larceny of, CL. ii. 876. Waiver of Right (see Consent, Jeo- pardy, New Trial, Right, Vested Rights, Verdict), doctrine of, full ex- position, CL. i. 995-1007, CP. i. 117-126; by prisoner, to be present at trial, CP. i. 266-271, at verdict, 272; to reading of indictment at arraignment, CP. i. 733 ; to jury trial, OP, i. 893, 894, 898; to par- don, OP. i. 833 et seq. ; to object to jury, OP. i. 932 ; to jury separating, CP. i. 998 ; by counsel, to reply, OP. i. 974. Walking-stick, whether " offensive weapon," SC. 321. Walled ToTwn (see Burglary, Town), whether breaking into, is burglary, CL. ii. 105. Wandering Mariners and Soldiers (see Gypsies, Vagabond, Vagrant), whether indictable, OL. i. 516. Want of Age. See Age, Immature Age, Infancy. Want of Mental Capacity. See In- sanity. War (see Law op Nations, Necessity, Treason, Treaty), meaning, CL. ii. 1227 ; States not engage in, OL. i. 183; may annul treaty, SC. 14 ; effect of, on limitations statute, SC. 261 a, 267 ; right to keep and bear arms, SC. 793. War Power distinguished from judicial, OL. i. 58. Ward (see Domestic Relations, Guardian and Ward), alleging the, in indictment, OF, i. 366, 370-375, DF. 80. " Warden of Fleet " signifying in stat- ute all jailers, SC. 190 b, note. WAT GENERAL INDEX TO THE SEEIE8. WEA Warehouse (see Out-house, Store- house), meaning, SO. 293; when part of dwelling-house, SO. 285 ; sleeping in, to protect goods, SO. 279 ; breaking and entering, OL, ii. 118, note ; keeping open, on Lord's day, OL. ii. 963. Warehousemen, larceny by, OL. ii. 870. " Wares," meaning, SO. 344. Warrant, Warrant of Arrest (see Abrbst, Bench Warrant, Opi'icer, Search-warrant), officer indictable for not serving, OL. i. 240 ; allegation of facts in, OL. i. 463, note, 467 ; day of execution in, though not in judgment, OL. i. 9.51 ; forgery maybe committed of, OL. ii. 530 ; arrest under, legal, illegal, &c., CP. i. 187 et seq. ; to whom ad- dressed, OP. i. 188 ; who serve, CP. i. 189 ; how arrest made under, OP. i. 1 87-1 93 ; prisoner getting possession of, OP. i. 193; of justice of peace in arrest, CP. i. 177- 180; breaking doors to serve, OP. i. 200- 202 ; manner of serving, CP. i. 206, 207 ; on Sunday, OP. i. 207 ; how dispose of arrested person, OP. i. 216, 217 ; for surrender of fugitive, OP. i. 222 ; whether under seal, CP. i. 227 ; what must state, OP. i. 228 ; whether in capital execution, OP. i. 1336 ; right to detain under, by- law, statute, SC, 23 ; arresting for drunk- enness without, SC. 796 ; how indictment for forging, for uttering, DF. 470 ; whether issuing of, for arrest is commencement of prosecution, SO. 261 ; as appearing in record, DF. 1070. Warrant of Commitment (see Com- mitment), whether commencement of prosecution, SO. 261 . "Warrant for Delivery of Goods," meaning, CL. ii. 560, 785, SO. 332, 333, 335. " Warrant for Payment of Money," meaning, OL, ii. 560, 785, SO. 332, 333, 335; procedure for forging, CP. ii. 473, 474. Warrant for Search, See Search- warrant. Warranty, when implied in sale, CL. i. 11 ; in false pretences, purchaser taliing conveyance without, CL. ii. 444. " Was." See Tense. Watch and Chain not "jewelry," SO, 347. Watchman, power of, to arrest without warrant, CP, i. 181 et seq., 215 ; homi- ■ cide of, in execution of his office, CL, ii. 654. Water (see Noxious and Adulterated Food, Nuisance, Stagnant Water, Unwholesome Food and Water), in- dictable to make, unwholesome, OL. i. 491 ; boiling, is "destructive matter," SO. 324. Watercourses (see Navigable River, Rivers, Wat), offences against, DF. 1026-1028. "Waterman," meaning, CL. ii. 351 ; landing passengers on Sunday, CL, ii. 961. Way (see Bridge, Ferrt, Navigable Rivers, Navigable Waters, Nui- sance, Parishes, Private Wat, Rail- road, SiD'EWAL.Vi), full exposition, CL. ii. 1264-1287, OP. ii. 1042-1057, DF. 1011- 1029 ; neglect to repair, OL, i. 241, 419 ; obstructing, CL, i. 531 ; need be no actual injury to persons, CL, i. 244 ; all must have right to use, CL, i. 245 ; belonging to town, OL. i. 245 ; conviction as to one street where more proved, OL. i. 792 ; several streets, indictment for one, CL. i. 1061 ; death from improper use of, CL. ii. 667 ; from careless use of, CL, ii. 690 ; in what county indict neglect to repair, CP, i. 53 ; duplicity, OP. i. 441 ;' joinder of defendants, OP. i. 470 ; alleging and proving termini, CP. i. 486, ii. 1045, 1051 ; variance, CP. i. 488 e ; neglect of official persons to repair, CP. ii. 827 ; special pleas in non-repair, DP. 1046, note. Weak Mind, false pretence operating on, CL. ii. 434. Wealth (see Public Wealth), exhibit- ing forgery to create ideas of possessor's, OL. ii. 607 ; prisoner's, whether evidence in larceny, OP. ii. 748 ; dangers from undue accumulations of, DF. 314. Weapon, Weapons (see Assault, Carrting, Dangerous, Deadly, Having, Homicide, Offensive), mal- ice implied from, OL. i. 414, note ; rais- ing, to strike, CL, ii. 23, note, 28, 34 ; striking with, CL, ii. 47, 49; allegation and proof of, in aggravated assault, OP. ii. 64, 65 ; in homicide, OP. ii. 514 ; man- ner of holding, CP. ii. 515, 856 ; in at- tempt to murder, OP, ii. 654, note, 656 ; carrying, into meeting, CL. ii. 309 a; carrying, to exhibit as curiosity, SC. 789. " Weapon Drawn," meaning, SO. 323. 851 WHO GENERAL INDEX TO THE SERIES. WIF ■Wearing Weapon, See Caeeting Weapons. ■Week, alleging day of, CS. i. 399 ; form, DF. 85, 86. ■Weeks, rule for computing numbers of, SO. 107. ■Weight, false representations of, OL. ii. 442 ; whether must be proved as laid, OP. i. 488 6. ■Weight of Evidence (see Evidence, Presumptions, Peoop), general doc- trine of, OP. i. 1091-1095 ; dying decla- rations, OP, i. 1216 ; for grand jury, OP. i. 866, 867 ; as to insanity, OP, ii. 671 et seq. ■Weights. See False Weights. ■Well (see Poisoning Well), poisoning, CL,ii. 721, note, DF. 766. "■Well Knowing" (see Knovtinglt) in indictment, OP. i. 504. ■Whale, when becomes property of cap- tors, OL. ii. 778. ■Whampoa, whether on " high seas," SO. 304. ■Wharf, ■Wharves, carrying, into stream, OL. ii. 1272 ; whether by-laws may regu- late, SO. 20. ■Wheat. See Stack of Wheat. "Whereas," use of, in allegation, OP. i. 554-556, DF. 26. "■Wherry" not include brig or steam- tug, SO. 246 a, note. "Whipping (see Domestic Eelations, Parent, Punishment), as punishment, OL. i. 942, 943, 947 ; milder than death, compared with imprisonment, SO. 1 85. ■Whiskey (see Liquor Keeping and Selling), selling, not "gross misde- meanor," OL, i. 945 ; obtaining, by false pretence of being sent for it, OL. ii. 458 ; what is, whether judicially known, SO. 1006 a; how allege unlicensed sale of, BO, 1038, prove, 1048. ■White Person (see Miscegenation, Negro, Negroes and Whites), mean- ing, SO, 274 ; purchasing liquor of slave, OL, i. 658, note; accessory to slave's offence, SO, 144, note ; how construe statute against, cohabiting with black, 60, 221 ; polygamous marriage between, and negro, SO, 592 ; adultery between, SO, 666 a ; intermarrying, SO, 738 ; gam- ing, SO, 854. ■Wholesale (see Retail), distinction be- tween, and retail, SO. 1016, note. " Whore," " Whoredom," meaning, SO. 715. 852 " ■Wicked Bilind," not necessary in in- dictment, DF. 46. ■Wider Meaning, statutory words may have their, in strict constmction, SO, 204. ■Widow, arson by, of house in which she is entitled to dower, OL. ii. 13 ; cheat by married woman under pretence of being, OL, ii. 152, note. ■Wife (see Coverture, Husband, Mar- ried Woman, Single Woman), buy- ing and selling a, OL, i. 502 ; assault and battery on, by husband, OL. i. 891 ; hus- band's liability for unlicensed sale of in- toxicants by, CL. i. 891 a ; as keeper of bawdy-house, OL. i. 1084 ; burning hus- band's house, OL. ii. 13 ; false pretence by, of being single, OL, ii. 152; joining husband in conspiracy, CL, ii. 187 ; false pretence to, OL. ii. 472 ; forcible entry by, on husband's lands, CL, ii. 500 ; neglect of, to provide for child, OL, ii. 661 ; liv- ing apart from husband, death of, OL, ii. 662 ; husband chastising, OL, ii. 683, note ; withholding necessaries from, OL, ii. 686 ; husband kUling, detected in adultery, , CL. ii. 708 ; larceny of husband's goods by, OL, ii. 872-874, 903 ; malicious mis- chief by, to husband's property, CL. ii. 993 ; whether may be one of required three in riot, CL, Ii. 1145 ; husband re- ceiving stolen goods from, CL. ii. 1 1 42 ; refusing to complain against husband for adultery, OP. i. 232 ; whether bind self for necessaries, OP. i. 264 c; as witness for co-defendant with husband, OP. i. 1019; for or against husband, CF. i. 1151-1155; of accomplice, testimony of, OP. i. 1170 ; testifying under hope of ob- taining husband's pardon, CP. i. 1175; dying declarations of, against husband, CP.i. 1210 ; other declarations of, against husband, OF, i. 1248 ; of prosecutor, con- fessions to, CP. i. 1233 ; committing as- sault and battery in presence of husband, CP, ii. 66 ; may testify to battery on her by husband, CP. iL 69 ; evidence of, against husband for killing seducer, OP, ii. 95 ; keeping bawdy-house, CF, ii. 109 ; when liable for murder by starving, OP. ii. 558 ; witness against husband for poi- soning her, CF, ii. 649 ; ownership in lar- ceny, OF. ii. 726 ; rape on, by procure- ment of husband, OP. ii. 961 ; stealing in husband's dwelling-house, SO. 233 ; stat- ute forbidding, to testify in one case, not WIN GENERAL INDEX TO THE SERIES. WIT permission in another, SG. 249 a ; witness to husband's polygamy, SO. 613^ adultery, 688; witness against hushand in abor- tion, SO. 760 ; how bind self and husband in liquor selling, SO. 1025 ; conspiracy to entice, from husband, DP. 298. Wild Animals (see Animals), killing, is reclaiming them, CL. ii. 775 ; whether subjects of larceny, 01. i. 578, ii. 771, 772; right to hunt for, OL. ii. 776, note, SO. 1133 ; how described in indictment for larceny, OP. ii. 706 et seq. Wild Bees, when subjects of larceny, OL. ii. 777. Wild Boars, when subjects of larceny, 01. ii. 773. Wild Geese tamed and straying away, larceny, OL. ii. 779. Wilful, meaning, CL. i. 427-429 ; when violation of statute must be, to be pun- ishable, SO. 231 ; in homicide, OP. ii. 546 ; in libel, OP. i. 613. " Wilfully " (see Knowingly, Mali- ciouslt), meaning, OL. i. 427-429 ; ii. 310; equivalent to what, in indictment, OP. i. 613 ; in indictment for arson, OP. ii. 42, 43, DP. 179, note ; for assault and iattery, OP. ii. 58, 512, note, DP. 206 ; for disturbing meetings, OP. ii. 290 ; for ex- tortion, CE. ii. 358 ; for homicide, OP. ii. 543-547, DP. 520, note, 542, note ; for as- sault with intent, OP. ii. 657 ; for peijury, OF. ii. 922; for malicious mischief, DP. 699, note, 710, note, 711, note ; in statute against illegal voting, SO. 824, 825, how allege, 840 ; in statute, not " falsely and fraudulently " in indictment, SO. 840. "Wilfully and Feloniously " not equivalent for " fraudulently," SO. 458. " Wilfully and Maliciously " (see Maliciously), in arson, OL. ii. 12 ; not supplied in indictment by " feloniously and unlawfully," OP. i. 613. Will (see Evil Intent, Intent, Mis- take OP Fact), without consent of, no crime, OL. i. 303 a, note ; contributing to act, OL. i. 632, 633, 647, 718. Will (Writing), suppressing, OL. ii. 143, note, 160 ; conspiracy to destroy, CL. ii. 206 ; extortion in setting up, OL. ii. 394 ; forgery of, OL. ii. 530, 535, note, 538, 550, 580, 589, 603 ; execution of, on Lord's day, OL. ii. 956 ; proof of sanity of maker, OP. ii. 682, note. Window, WindovB-B, breaking and en- tering dwelling-house at, CL. ii. 92, 93, SO. 312 ; breaking, in malicious mischief, CL. ii. 985, note. Windovr-saslies, larceny of, OL. ii. 763. Wine Merchant, conspiracy to cheat by pretence of being, OL. ii. 205. Winning (see Fbaudulent Winning, Losing ob Winning), at gaming, SO. 885-888, DP. 497, 498 ; by betting on elections, SO. 938, DP. 396. Witchcrait, what, and whether indicta- ble, OL. i. 593 ; as false pretence, OL. ii. 429 a. "With," omitting, in laying intent in homicide, OP. i. 357, note; substitute for " at " in allegation, SO. 908, and see At. " With Bach Other," in statute against open lewdness, SO. 721. " With Force " in indictment for carnal abuse, SO. 486. " With Force and Arms," needless in allegation, OP. i. 502, DP. 43 ; in indict- ment for assault and battery, OP. ii. 57 ; false pretences, DP, 43, note ; forcible en- try, OP. ii. 371, 380 ; homicide, OP. ii. 503. "With Intent to Burn," meaning, SO. 311. "With Strong Hand" in indictment for forcible entry, OP, ii. 380. Withdra-wing Juror, entry of, DP. 1035. Withdrawing Plea, law and practice of, OP. i. 124, 780, 798, 801, DP. 1035, and see Entkt. Withholding Pension^ DP. 864. " Within," how construed in statute, SO. Ill, note. " Within Age of Consent," meaning, SO. 584. "Within Ten Feet" in statute, how interpreted, SO. 211. " Without," meaning in statute against burglary, SO. 221. " Without her Consent " in rape, stat- ute and indictment, OL. ii. 1109-1113, 1115, OP. ii. 951,80.480. Witness, Witnesses (see Absent Wit- ness, Accomplice, Bkibert, Con- tempt OP Coubt, Deceased Witness, Dissuading Witness, Evidence, Ex- clusion OP Witnesses, Expebts, FoBEiGN Judgment, Holding poe Tbial, Husband, Insanity, Jbop- ABDT, List op Witnesses, New Tbi- al, Obstbucting Justice, Opinions op Witnesses, Pardon, Pbejubt, Kbpusing to Testify, Selp, Waivkb 853 mr GENEEAL INDEX TO THE SERIES. WOK OF Right, Wife), the different classes of, and how their testimony regarded, full exposition, OP. i. 1133-1187; exclu- sion of, from court during delivery of evidence, full exposition, OP. i. 1188-1193 ; testimony of deceased or otherwise ab- sent, full exposition, OP. i. 1194-1206; dying declarations of deceaseiiJuU expo- sition, OP. i. 1207-1216 ; preventing at- tendance of, OL, i. 468, 695, DP. 312, note, 328; why indictable, OL. i. 734; attempt to intimidate, &c., CL, i. 468 ; keeping back, CL, 1. 695 ; incapacity of, " from crime, CL. i. 972-976 ; pardon re- moves incapacity, CL.i. 917 ; trial broken off by sickness of, CL. i. 1037 ; by, not ac- quainted with nature of oath, OL. i. 1037 ; when punishable for disobedience, CL. ii. 253, 266^ holding the, to appear, OP. i. 34, 234 "6; complainant as, OP. i. 232, note; counsel, CP. i. 311, 312; petit jurors, CP. i. 363 ; how allege tampering with, OP. i. 556, DP. 328 ; before grand jury, contempt, &c., CP. i. 868, 869, in- competent, 872, 873 , absence of, con- tinuance, OP. i. 951 a; ignorance of, continuance, CP. i. 951 c ; how attendance secured, CP. i. 959 6 ; order of examin- ing, CP. i. 966-966 6, calling, 966 c ; sep- arate trial to admit wife as, OP. i. 1019, 1020, parties for each other, 1020 ; how contradicted, CP. i. 1069, 1071 ; two, one swearing he saw, other not, CP. i. 1071, SO. 801 ; legislation as to competency of, OP. i. 1090 ; jury believe or not, CP. i. 1147; how many essential, CP. i. 1148; bring- ing in imprisoned, CP. i. 1409 ; refusal to testify as evidence against bawdy-house, CP. ii. 117; injured person in false pre- tences, CP. ii. 192 ; seconds in duel, OP. ii. 308 ; dispossessed person in forcible entry, CP. ii. 387 ; person whose name is forged, OP. ii. 429, 430 ; subscribing, OP. ii. 430 ; officer of bank, OP. ii. 431 ; to handwriting, CP. ii. 432 a-432 c ; to in- sanity, OP. ii. 676-687 ; wife against hus- band for poisoning, CP. ii. 649 ; owner of stolen property to ownership, OP. ii. 752 ; person injured by malicious mischief, OP. ii. 847 ; how many, in peijury, OP. ii. 927-933 ; woman Injured in rape, OP. ii. 961-968, attempted rape, 978 ; how many, in treason, CP. ii. 1037 ; co-defend- ant in another indictment, CP. ii. 1039 ; how compel to testify before grand jury, SO. 137; how construe statute allowing 854 one to be, for self, SC. 193 ; statute ex- cluding, from onfe case, not carrying per- mission for another, SO. 249 a ; husband or wife, in polygamy, SO. 613, adultery, 688 ; injured woman in forcible mar- riage, SO. 623 ; woman operated upon in abortion, SO. 760, DP. 144; others in ' abortion, DP. 144 ; how indictment for threatening, DP. 328 ; how allege sum- mons to, DP. 328, note. ■Witness Fees, taxation of, CP. i. 1318. ■Woman, ■Women (see Chaste 'Woman, Chasutt, Female, Feminine, Mab- KiED, Single, Wipe), indecent liber- ties with, assault, CL. ii. 28 ; rape by, as principal in second degree, CL. ii. 1135; girl under twelve is, in ravishment, not in all other cases, SC. 211 ; masculine " his " may signify, SC. 212 ; how as person injured and witness in abortion, SO. 749, 760 ; whether vote, SO. 804 ; not a " freeman," SC. 826, note ; whether word, in indictment for abortion, DP. 138 ; the, as witness in abortion, DP. 144; regulations of hours of labor of, DP. 579. ■Wood. See Cobd op Wood. ■Wood-shed, part of dwelling-house, SO. 286. Wooden Buildings (see Nuisance), meaning, SC. 208 ; when a nuisance, OL, i. 1150; restraining erection of, by by- laws, SC. 20, note ; statutes against, con- strued, SC. 208, 216. ■Word, ■Words (see Bad English, Blas- phemy, Ealsk Geammak, Fobeign Words, Interpretation, Language, Legislative Meanings, Libel and Slander, Liberty op Speech, Mean- ings OP Language, Meanings of Words, Obscene Words, Oral WoEDS, Pbofanb Swearing, Scan- dalous Words, Slander, Spelling, Verbal Slander, Written Words ; and see the particular words), meanings of, and phrases in the criminal law,_/«H exposition, SC. 268-350 (namely, as to the person acting, SO. 271-275 ; the time and place, SO. 276-305 ; the thing done, SO. 306-318 ; the objects acted upon and the instrumentalities, SC. 319-347; the proceedings, SO. 347 a-350) ; of judges, how understood, CL. i. 379, 381, 383, 483 b, 484, 551 ; in indictment, 01. i. 426, OP. i. 509, 510; provoking quarrels, CL. i. 540 ; in affray, OL. ii. 3 ; in assault, WOR GENERAL INDEX TO THE SERIES. WRI OL. ii. 25, 26, 34, 40, 41 ; not symbol or token in cheat, OL. ii. 145 ; as obstmction of justice, GL, ii.265, 266 ; in duelling, GL. ii. 314 ; in homicide, GL. ii. 704 ; not overt act in treason, GL. ii. 1233 ; different forms of setting out, GP. i. 559-565 ; in false pretences, OF. ii. 178 ; in oral slan- der, OP. ii. 807-810 ; all the, of statute to hare meanings, SO. 80, 82 ; bending the, of statute from primary meanings, SO. 87 ; interpretation not confined to the, SO. 93 ; have many meanings, SO. 92 d, 93, 101, 102; statutes as, in com- bination, SO. 93 ; double meanings, SO. 94, 95 ; repeated in same sentence or statute, SO. 95 o ; on same subject, SO. 95 a, note ; special, combining with sub- ject, SO. Ill; restricting meanings, SO. 119, expanding, 120, enlarging and con- tracting, 121 ; following the, in inter- pretation, SO. 145 ; when, supplied in liberal interpretation, SO. 189 d, 190 c ; further of supplying, SO. 79-81, 102, 243 ; meanings in strict interpretation, SO. 204-217, case within the, 220 ; within the reason, SO. 226, 227 ; overlying one another in meaning, SO. 246 c-248, 441 ; variety in meanings of, SO. 268 ; statu- tory offence of speaking, DP. 244 ; how allege, in disturbing meeting, DP. 364 ; of challenge to duel, DP. 378-380; disturb- ances by, &c., DP. 858, 859. Work (see Conspikaot, Labor, Labor OFrBNCEs, Laborers, Wages), com- pelling men to, GL. i. 453-455 ; getting pay for, not done, GL. ii. 841 ; indictment for doing, on Lord's day, DP. 668, 669, and see GL. ii. 954, note, OP. ii. 817, Lord's Day. Work on Goods (see Embezzlement, Laecent), larceny by one who has done, OL. ii. 867, 868. " Work of Necessity " (see Necessity, Necessity and Charity), exception in statute against Sabbath-breaking, GL. ii. 959, 960, GP, i. 641, ii. 818. Working People, how injured by labor strikes, DP. 314, 315. Working at Trade. See Trade. Workmen (see Work), indictment for conspiracy as to wages of, GP. ii. 242, DP. 304-307. "Worldly Employment" on Lord's day, OL. ii. 954. Worship (see Disturbing Meetings, Lord's Day, Religious Worship), allegation of time of, DP. 86 ; how in- dictment for arson of a place of, DP. 183. Wound, Wounds (see Bruise), mean- ing, SO. 314 ; in indictment for assault, OP. ii. 65 ; for homicide, GP. ii. 514 ; re- lation of, to the instrument, GP. ii. 516 ; description of, GP. ii. 518-520 ; as being mortal, OP. ii. 521, OL. i. 115, note (par. 3), DP. 520, note ; place of the, OP, ii. 522-526 ; as causing the death, GP. ii. 527-529 ; word, in indictment for assault and battery, DP. 206, note ; proof of, by experts, OP. ii. 631. " Wound Inflicted " by another, what is not, SO. 216. Wounding, construction of statute against, OL. i. 340 ; indictment for, GP. i. 408, 629, note, DP. 352, note, 696 ; with intent to maim, DP. 747. Wounding Animal, Wounding Cat- tle, how indictment for, GP. ii. 846, DP, 352, 717. Wreck (see Stray, Treasube-trove, Waif), what, and larceny of, GL. ii. 876 ; working on Lord's day to preserve property from, OL. ii. 959, note. Writ, service of, on Lord's day, OP. i. 207 ; whether set out the, in election offences, SO. 832 ; how the allegations for forging a, DP. 463. Writ of Certiorari, yiiH exposition, GP. i. 1375-1381, DP. 1080-^1082 ; distinguished from writ of error, OP. i. 1364 ; in aid of writ of error, DP. 1089. Writ of Error (see Jeopardy), yJi^Zca;- position, GP. i. 1361-1374, DP. 1083-1091 ; as to punishment, OL. i. 930-932 ; re- versal of sentence on, OL. i. 953,975; whether grantable to prosecutor, OL. i. 1024 ; e6Fect of, OL. i. 1024, 1026, 1041 ; effect of, on indictment for peijury, OL, ii. 1028 ; presence of prisoner on, OP. i. 277 ; whether for duplicity, OP. i. 443 ; right of prisoner to bring, OP. i. 449, note, 825 ; by several defendants and as to counsel, GP. i. 1026, 1039 ; in con- nection with exceptions, OP. i. 1267 ; whether new trial on application by, OP. i. 1277 ; certiorari performing like func- tions, OP. i. 1378, in aid of, 1379, DP, 1089. Writ of Inquiry, altering, in forgery, OL. ii. 531, note. " Write " in indictment for libel, DP, 619, note. 855 WEI GENERAL INDEX TO THE SEKIE8. YOU Writer's Meaning, statutory interpreta- tion to ascertain the, SG. 188. Writing (see Fame Writino, Foe- GEKT, In Wbiting, Miseeading a Weiting, Pkivate Weitings, Tenob, Written iNSTEnMENT), meaning, CL. ii. 448, note, 525, 569 ; averring import of, OP. i. 332 ; how set out, in forgery, OP. ii. 403 ; whether complaint before magistrate must be in, OP. i. 718; em- bodying confessions, OP. i. 1260; a statr ute to be interpreted as, SO. 4 ; oral consent not dispense with, SO. 237 ; proof of terms of bet in, SO. 947 ; how indictment for larceny of, DP. 601, 603, 605. "Writing Obligatory," forgery of, SO. 325. Written Allegation (see Allega- tion), right of, OP. i. 319. Written Blasphemy (see Blasphemt AND Peofaneness), how the indictment for, DP. 242, 243. Written Constitution. See Consti- tutional Law. Written Instrument, Written In- struments (see False Peetences, FoEGEET, Instrument, Laecent, Perjury, Substance, Tenoe, Words), obtaining signature to, by false pretences, deliyery, CL. ii. 460, 484 ; not forgery of, to add what law would supply, CL. ii. 577 ; false testimony as to, OL. ii. 1040, 1041 ; constitutionality of statute as to variance, CP, i. 101 ; allegations of, OP. i. 332, 488, 559-563 ; in foreign language, CP. i. 564, 565, DP, 619, note; allegation and proof of, in false pretences, OP. ii. 183, 187, 196 ; how set out, in forgery, OP. ii. 403-412 ; in larceny, OP. ii. 732- 738, produced in evidence, 753 ; in libel, CP. ii. 789-792; in pequry, CP. ii. 915, 916 ; statutes regulating, may be direc- tory, SO. 255. 856 Written Laws (see Bt-law, Consti- tution, Municipal Bt-laws, Stat- utes, Treaty), the diflferent sorts of, full exposition, SO. 11-17 a; municipal by-laws, _/uZi exposition, SO. 18-26 ; when statutes take eSect,JuU exposition, SO. 27- 32 ; enactment and validity, full exposi- tion, SC. 32 a-41 ; the several classes,/«ZZ exposition, SO. 42-42 e ; the several parts, such as title, preamble, purview, prece- dence of provisions, sections, full exposi- tion, SO. 43-67 ; require interpretation, SO. 116, 117 ; how separable for partial repeal, SC. 164 o; the procedure»on, SC. 249 6-253, 351-355. " Written Vote," printed vote is, CL. ii. 527. Wrong Addition (see Addition), plea of, in abatement, DP. 1039, note. Wrong Address, putting, to name of drawee of bill of exchange, CL. ii. 588. Wrong Name. See Amendment, Name. Wrong Person, delivering article to, in larceny, OL. ii. 812. Wrong Side, what counsel on the, may do, DP. 40. Yale College (see Student), statute regulating credit to students of, con- strued, SO. 100, 222. Year (see Computation of Time, Time), meaning, SO. 106 ; allegation of, CP. i. 389, ii. 131. "Year and Day," meaning, SC, HI, note ; in homicide, CL. ii. 640. " Year of our Lord," whether in indict- ment, OP. i. 389. " Yearling " in indictment for larceny of animals, SO. 426. Young of animals included under general name, SC, 426. Youth (see Infancy), confession by, un- der fourteen, OP. i. 1231. UnlTeisity Frew, Cambridge : John Wilson and Son.