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AS SELECTED CASES, IMPORTANT TO AMERICAN LAWYERS, FHOM THE EJ^GLISII, iRISH, SCOTCH AND CANADIAN LAW REPORTS, WITH NOTES AND REFERENCES. BY JOHN G. HAWLEY, Late Phosbcctiso Attobnky at Dethoit. VOL. I. CHICAGO: , CALLAGIIAN AND COMPANY, LAW BOOK PUDLISnERS. 1S78. \ If I i' 1 t A% I ' I '» if-^~J=- 1=^ ^ B. Daniel r. State. . ■ • Dat'i.-*, Stat« r DaA'is I'. State . . • • Deliuiy f. State... Doehring v. State . E. Earp r. State EHinger c. State . . . Eisenman i: State.. Eisenman t\ State. . Etites r. State 559 228 577 324 F. Fenn, State r Ferguson r. State. Foster, State v Foulkes, Queen v. . Frazor t>. State . . . Fljnm v. State — 1S7 '.m COG 86 GO 171 4^() 4s4 605 506 5S2 146 153 315 424 G. Galloway v. State 437 Golden r. State 586 (joodenow, State v 42 Graham, State r 182 Grant, Commonwealth v 500 Graves, State t' 429 Gray, State v 554 ;■ I } w vii 1 Greer v. State 643 ■ »o- IV AMERICAN CRIMINAL REPORTS. Grigg V. People (Jumble, Queen r II. Hamilton r. People Hawkins, Comnionwealth v. . • ■ Heed, State r Heiland, City of Bloomington r. Hembreo r. State Hendei-son, State r Hendrix r. State Hennessy, Regina r Hensly r. State Horbacli r. State Hunckeler, People r Vage. . GO'2 . '6% 618 r.5 rm 600 r.o4 40;{ 4(i-') ;]:!0 507 I. Mannont r. State ifarshall r. State Martin r. State lyiartinez v. State ]^Iayor of Urunswick i: Urieswick, May, Stater McCoy r. People McCoy (-.State McCne r. Commonwealth McCuUoel) r. Stat. Patro . 447 . 4S2 . 5:56 . 4'2() . O.V.) . 420 . 71 . nsi) . 2(i>! . ;?i.s McCutcheon r. People 471 McDade r. People Isaacs 1'. State. 103 McDonald, State /•. McKay r. State . . . Meister /'. People . . Middleton r. State Middleton r. State Jliller r. State . . . . Moore r. Stiite . . . . 81 368 46 91 194 422 2:-.0 613 N Jackson, Commonwealth v 74 John White, ex parte 1C9 Jones I". Commonwealth 262 Jones V. State 218 Jonesr.State ^10 K. Kean r. Commonwealth 199 Kellar V. State 211 King V. State 426 Landi-ingham v. State 105 Lark f. State 563 Lathrope v. State 468 Lathrope r. State 496 Lavin v. People 578 Le Bur, ex parte 241 Leiber r. Commonwealth 3i''l Lightner, People r 539 Liner. State 615 Lynch v. Commonwealth 283 Lyons v. State 28 M. Madigan, State r 542 Ma'unda v. State 225 646 .5:12 436 Necly, Stater C36 Negus, Queen r l'>0 Newman r. State 173 Niles, Stater Nolan r. State Noregea, People r o. O'Brian r. Commonwealth 520 Olmstead, People r 301 Ortwein r. Couunonwealth 297 Osborn r. State 25 Paulk V. State 67 Porter r. Stixte 232 Potts, Stater 363 Price c. State 423 Prhice, Regina r 1 Pruice r. State 545 E. RafFerty r. People . 2"^! Regina v. Belmont » 457 Regina v. Hennessy 403 Regina, Stan* r 438 Regina r. Prince 1 TABLE OF CASES. Regina r. Sniitli Kficli r. State.. . . r>ii SuuihUts r. Peojilo :> Ui l^ciinlun, State r 1 !"'■'> ; Selioni r. State "i!)T Shivwin r. People <>'')0 : Sliiver.- r. State '.'M ' Slattery r. People '2i» ^ Smith, Ii'ejfiiia r '"ill Smith, State r .^S0 Smith c. State 240 Ptjinley, Stato r '-'(J!) I StiiiT, Heg'ina c 4:{i^ Stul.ljs V. State <)US ; Sullivan r. Peoplt; ;{-j!) I SylTO^ter p. State '.'M ' ^itu^, Coiinnonwealth r 416 Tihon f. State .".(U u. Walker, State r 4:!2 Walker/'. State :l()'J Ward c. I'eople "'(i') Waterman r. IVople 22') Waters r. State ::<)7 Weaver r. I'eople "i*i2 Wellarr. I'eople -JTG White, .lohn, Ex parte lf)9 Williams, State r .'.(j Williams r. State •.'■_>7 Williams (-.State 41:5 Wilson, People /• 1(J7 Wilson, People /■ :!".8 Wilson, State /• -VJ!) Wilron r. (Jonunonwealth <)12 Wochvard r. State ■.'.m Wray. State r 4-0 Wright r. People -.'44 Wright c. State I'M Y. Yates f. state 4:;4 z. m Unilerwood. State r 'J-M ; Zeizer r. State 4-'.) rdderzook r. Conmionwe.ilth Ml 1 i Zook v. State •J40 ( AxMERICAN CRIMINAL REPORTS. ( AnDU( The U ii tl h C 11 a d At on til charg iiiiirri possei was f found All the fc lips, 1 •By to be tt possess: having being ( impriso AMERICAN CRIMINAL REPORTS. t,!' ' 1 1 Reo. vs. Pkince. (2 Cr. Ciw., Res., VA.) Abduction — Olrl under nirlecn — Bonn fide and rectsonahh hclicf that she was older — Mens rca — 24 and 2') Vicf., ch. 100, sec. !>'>. The prisoner wiw convicted under 24 and 2o Vict., ch. 100, sec. 5.'>, of unhiwfully tftkinfj an unnian-ied female, under the aj^e of sixteen, out of the possesniou and atrainst tiie will of her father. It was proved that the prisoner did take the (jirl, and that she was under sixt<'en, but that ho bona fide believed, and had reasonable jjiound for believintr, that she was over sixteen: Held (by Cock!)uni, C. .1., Kelly, C. 15., Urownwell, Cleasby, Pollock, and Amphlett, Bl^., Hlaekbin-n, Mellor, Lush, drove, Quain, Dennian, Archibald, Field and liindley, .I.T., IJrett, .T., dissenting,'), that the latter fact afforded no defense, and that the prisoner was rif,'htly convicted. Cask stated by Dknman, J. At the assizes for Surrey, lickl at Kingston-upon-Tliames, on the 24tli of ^larch last, Tlenry Prince was tried npon the charge of liavinjif unhiwfully taken one Annie Phillips, an un- married u;lrl, heinf? under the age of sixteen years, out of the possession, and against the will of her father. The indictment was framed under sec. 55 of S-i and 25 Vict., ch. 100.* He was found guilty. All the facts necessary to support a conviction existed, unless the following facts constituted a defense: The girl, Annie Phil- lips, though proved by her father to he fourteen years old on the ' By 24 avid 2.") Vict., ch. 100, sec. h't, "Whosoever shall unlawfully take, or cause to lie taken, any uimiaiTied girl, being under the age of sixteen years, out of the possession and ajjainst the will of her father or mother, or of any other iwrson having the lawful care or charge of her, shall be guilty of a misdemeanor, and being convicted thereof, shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labor." Vol. 1. — 1 3 AMERICAN CRIMINAL REPORTS Gtli of April following, looked very much older than sixteen ; and the jury found, upon reasonahle evidence, that before tho defendant took her away, she had told hiui that she was eighteen, and that the defendant Una fide believed that statement, and that such belief was reasonable. If the court should be of o]iinion that under these circnni- stances a conviction was right, the defendant was to appear for jmlgiiient at the next assizes for Surrey; otherwise, the convic- tion was to be quashed; see lierj. v. llohlns, C. & X., 5-10, and Iie(j. '0. Olifier, 10 Cox Cr. C, 402. April 25, the court (Cockburn, C. J., Braniwell and Pollock, EB., Mellor and Brett, JJ.) reserved the case for the considera- tion of all the judges. ^[ay 20, the case was argued before Cockburn, C. J,, Kelly, C. B., ])rainwell, Cleasby, Pollock and Am])hlett, BB., ]>lackburn, Mellor, Lush, Brett, Grove, Quain, Denrnan, Archibald, Field and Lindley, J J. No counsel appeared for the prisoner. Lilley, for the prosecution, cited Attorney General v. Lock- wood, 9 M. & W., 378; llerf. v. Marsh, 4 D. & B , 2C0; Jier/. v. Jlojyllns, Car. & M., 254; Lee v. Simpson^ 3 C. B., 871; 10 L. J. (C. P.), 105; Reg. v. Rohlns, (1); licfj. v. Jt>j^j).i, 4 Cox Cr. C, 107; AVy. v. OUfier, (2); Reg. v. Ilycock, 12 Cox Cr. C, 28; Reg. V. Booth, 12 Cox Cr. C, 231. Cockburn, C. J., referred to Reg. v. IlJbhert, Law Hep., 1 C. C, 184. Pollock, B., referred to Rex v. Lord Gray, 9 St. Tr., 127. June 20. The following judgments were delivered: Brett, J. In this case, the prisoner was iiulictcd under 24 and 25 A^ict., ch. 100, sec. 55, for that he did unlawfully take au unmarried girl, being under the age of sixteen years, out of tho possession and against the will of her father, and, according to the statements of the case, we are to assume that it was proved on a trial that he did take an unmarried girl out of the posses- sion and against the will of her father, and that when he did so, the girl was under the age of sixteen years. But the jury found that the girl went with the jirisoner willingly; that she told the prisoner that she was eighteen years of age; that ho lielicvcd that she v/as eighteen years of age, and that he had reasonable A. RKG. V. PRINCE. 8 grouml for so helieviiig. The qucstiou is, whether upon siicli proof find siidi Hiidings of the jury, tlie prisoner ouglit or ought not, ill point of law, to be pronounced guilty of tWe offense with which he was charged, lie, in fact, did each and every thing which is enumerated in the statute as constituting the oifense to be punished, if what he did was done unlawfully within the meaning of tlie statute. If what he did was unlawful wiihin the meaning of the statute, it seems impossible to say that he ought not to be conv'icte~. Xo such ac- tion now exists, and if it did, it would not be applicable to any female child, at all events, not to any who was heir-apparent. Neither can a man who with her consent, and withont force, takes a danghter who is more than sixteen years old but less tlian twenty-one, out of her father's i)ossessionor custody, be indicted for such taking. There never has been such an indictment. The statute, o lien. VI I, ch. 'J, was enacted againsi, " the taking any woman so against her will unhiwfully, that is to say, maid, wld(tw, or wife, that such taking, etc., be felony." It was held in Lad;/ FnUuuxnrs Caac, Cro. Car., 484, that the indictment must further charge that the defendant carried away the woman with intent to mai'ry or delile her. Two things, therefore, were necessary, which are n(»t applicable to the point now under dis- cussion, luimely, that the taking should be against the will of the person taken, and that there should be the intent to marry or de- iile. The statute, 4 and 5 Phil, ifc Mary, ch. S, deals with the taking out of or from the possession, custody or government of the father, etc., any maid or woman child, nnmarried, being un- der the age of sixteen years. For a mere unlawful taking, the punishment is imjirisonment for two years. For a taking and marriage, live years. And the girl, if she be more than twelve years old, and consents to the marriage, forfeits her inheritance. The statute, 9 (ieo. W, ch. 31, sec. ll», is enacted against the tak- ing of a woman against her will with intent to marry or defile her, etc. The same statnte, sec. ^0, is as to an nnmarried girl beinir nnder the age of sixteen years. It follows from this re- view that if the facts had been as the prisoner, according to the iindings of the jury, believed them to be, and had reasonable ground for believing them to be, he would have done no act l-u! ■■(■.■;■ il 6 AMERICAN CRIMINAL RErORTS. which has ever been a criminal offense in En^'land; he would have done no act in respect of which any civil action could have ever been maintained against him; he would have done no act for which, if done in the absence of the father, and done with the contiiming consent of the girl the father could have' had any le- gal remedy. We have then next to consider the terms of the statute, and what is the meaning in it of the word " unlawfully." " The usual system of framing criminal acts has been to specify each and every act intended to be subject to any punishment;" Crim- inal Law Consolidation Acts, by Greaves, Introduction, p. xxxvii; and then in some way to decla'-e whether the offense is to be considered as a felony or as a misdemeanor, and then to enact the punishment. It seems obvious that it is the pro- liiJMted acts which constitute the offense, and that the ])]irase- ology which indicates the class of the offense does not alter or affect the facts, or the necessary proof of those facts, which con- stitute the offense. There are several usual forms of criminal enactment: "If any one shall with such or such intent do such and such acts, he shall be guilty of felony or misdemeanor, or as the case may be." Wliether the offense is declared to be a felony or a misdemeanor depends upon the view of the legisla- tiire as to its heinousness. But the class in Avhich it is ])]aced does not alter the proof requisite to support a charge of being guilty of it. Under such a form of enactment, there must be proof that the acts were done, and done with the specilicd intent. Other forms are: "If any one shall feloniously do such and such acts, he shall be liable to i)enal servitude," etc.; or, "If anyone shall unlawfully do such and such acts, he shall be lialtlo to imprisonment," etc. The ffrst of these forms makes the of- fense a felony by the use of the word "feloniously; " the second makes the offense a misdemeanor by the use of the word " un- lawfully." The words are used to declare the class of the offense. But they denote also a part of that which constitutes the offense. They denote that which is equivalent to, though not the same as, the specific intent mentioned in the ffrst form, to wliicli allusion has been made. Besides denoting the class of the cttense, they denote that something more must be jn-oved than merely that the prisoner did the prohibited acts. Tliey do not necessarily show that evidence need, in the first instance, bo r^^iL REG. V. PRINCE. f ffiven of more than that the prisoner did the prohibited acts; but they do denote tliat the jury must find, as a matter of ulti- iiiiito proof, more than tliat the prisouer did tlie prohibited acts. What is it that tlic jury must be satisfied is proved, beyond luiMvly tliat tlie person did tlie proliibited acts? It is suggested tliat they must be satisfied that the jtrisoner did the acts with a criminal mind, that there was ^^ incns rea.''^ The true meaning (»f that ])hrase is to ije discussed hereafter. If it be true that this must bo proved, the only difi'ereuco between the second forms and the first form of enactment is, that i" the first the in- tent is specified, but in the second it is left generally as a crimi- nal state of mind. As between the two second forms, the evidence, either direct or inferential, to prove the criminal state of mind, must be the same. The ]>roof of the state of the mind is not al- tered or aflfected by the class in which the ofi'ense is placed. Another common form of enactment is, " If any person know- ingly, Avil fully and maliciously do such or such acts, he shall be guilty of felony," or "if an}' knowingly and wilfully do such or such acts, he shall be guilty of misdemeanor," or " if any know- ingly, wilfully and feloniously do such or such acts, he shall be liable," etc., or "if any knowingly and unlawfully do such and such acts, he shall be liable," etc. Tlie same e.\])lanation is to be given of all these forms as between each other as l)efore. They are mere diflerences in form. And though they be all, or tlioii^:h several of them be in one consolidating statute, tliev are not to be construed by contrast. " If any ([uestion should arise in which any comparison may be instituted between ditt'erent sec- tions of any one or several of these acts, it must be carefully borne in mind in what manner these acts were framed. Xone of them was rewritten; on the contrary, each contains enaet- meiits taken from dillerent acts passed at difierent times and with difierent views, and fre(pieiitly varying from each other in phraseology; and, for the reasons stated in the introduction, these enactments for the most part stand in these acts with little or no variation in their phraseology, and conse(|uently their dif- ferences in that respect will be found generally to remain in these acts. It follows, theivforo, from hence, that any argument as to a difi'erence in the intention of the legislature which may be drawn from a difi'erence in the terms of one clause from those in another, will be entitled to no weight in the construction of 8 AMERICAN CRIMINAL RErORTS. such clauses, for that argument can only ai)plj with force wliere an act is framed from beginning to end with one and tlie same view, and witli the intention of making it thoroughly consistent throughout," Greaves on Criminal Law Consolidation Acts, p. 3. I Jiave said tliat as between each other the same explanation is to be given of these latter forms of enactment as of the former mentioned in this judgment. But as between these latter and the former forms, there is the iiitrodnction in the latter of such M-ords as "knowingly," "wilfully," "maliciously." "Wil- fully " is more generally applied when the prohibited acts arc in their natural consequences not necessarily or very probably nox- ious to the public interest, or to individuals, so that an evil mind is not the natural inference or consequence to be drawn from the doing of the acts. The presence of the word requires somewhat more evidence on the part of the prosecution to make out a prhiui facie case, than evidence that the prisoner did the pro- hibited acts. So as to the word "maliciously," it is usual where the prohil)ited acts may or may not be such as in them- selves import imma facie a malicious mind. In the same way thu word " knowingly " is used, where the noxious character of the prohibited acts depends ujion knowledge in the prisoner of their noxious effect, other than the mere knowledge that he is doing the acts. The presence of the word calls for more evi- dence on the part of the prosecution. But the absence of the word does not prevent the prisoner from proving to the satisfac- tion of the jury, that the mens rca, to be jn'i ma facie inferred from his doing the prohibited acts, did not in fact exist. In Rex V. Marsh, 2 B. & C, 717, the measure of the effect of the presence in the enactment of the word " knowingly" is ex- plained. The information and conviction were against a carrier for having game in liis possession contrary to the statute, 5 Anne, ch. 1-t, which declares "that any carrier having game in his possession is guilty of an offense, uidess it be sent by a qual- ified person." The only evidence given was, that the defendant was a carrier, and that he had game in his wagon on the road. It was objected that there was no evidence that the defendant knew of the presence of the game, or that the person who sent it was not a qualified person. The judges held that there was suffi- (Aawi prima facie evidence, and that it was not rebutted by the defendant by sufficient proof on his part of the ignorance sucr. REG. V. PRINCE. :^ gostcJ on Ills l>elialf. The judgtiients clearly import, that if tho (lefeiulaiit could have satisfied the jury of his ignorance, it would have heen a defense, though the word " knowingly " was not in the statute. In other words, that its presence or absence in tho Ptatute only alters the burden of proof. " Then, as to knowledge, the clause itself says nothing about it. If that had been intro- duced, evidence to establish knowledge must have been given on the j)art of the prosecutor; but under this enactment the party charged must show a degree of ignorance sufficient to excuse him. Here there was pi'liaa facie evidence that the game was in his possession as carrier. Then it lay on the defendant to re- but that evidence:" I'agley, J. "The game was found in his wagon employed in the course of his business as a carrier. That raises a presumj)tlon prima facie that he knew it, and that is not rebutted by the evidence given on the part of the defendant: " Littledale, J. From these considerations of the forms of criminal enactments, it would seem that the ultimate i>roof necessary to authorize a conviction is not altered by the i)resence or absence of the word knowingly, though by its presence or absence the burden of proof is altered; and it would seem that there must be proof to satisfy a jury ultimately that there was a criminal mind, or Duum rea, in every oli'ense really charged as a crime. In some enactments, or common law maxims of crime, and therefore in the indictments chartriniT the committal of those crimes, the name of the crime imports that a mens rea must be proved, as in murder, burglary, etc. In some the viens rea is contained in the specific enact- ments as to the intent which is made a part of the crime. In some the word " feloniously " is used, and in such oases it has never been doubted but that a felonious mind must ultimately be found by the jury. In enactments in a similar form, but in which the prohibited acts are to be classed as a misdemeanor, the word " uidawfnlly " is used instead of the word " feloniously." What reason is there why, in like manner, a criminal mind, or vienft rea, must not ultimately be found by the jury in order to justify a conviction, the dsitlnctlon always being observed, that in some cases the proof of the committal of the acts may^wv'ma facie, either by reason of their own nature, or by reason of the form of the statute, import tho proof of the mens rea? But even in those cases it is open to the prisoner to rebut tho prima /tic le y. i |ii '1 ,,;, 10 AMERICAN CRIMINAL RErORTS. ') . evidence, so tliat if, in the end, the jury ai'e satisfied tliat there vas no criminal mind, or mens rea, tliere cannot be a conviction in England for tliat which is by the law considered to be a crime. There are enactments which by their form seem to constitute the prohibited acts into crime, and yet by virtue of which enact- ments the defendants charged with the committal of the prohib- ited acts have been convicted in the absence of the knowledge or intention sujiposed necessary to constitute a mens rea. Such arc the cases of trespass in ])ursuit of game, or of piracy of literary or dramatic works, or of the statutes passed to protect the rev- enue, l^ut the decisions have beta based upon the judicial declaration that tae enactments do not constitute the prohibited acts into crime or ofteu-es against the crown, but only prohibit them for the purpose of protecting the individual interest of in- dividual persons, or of the revenue. Thus, in Leo v. ^'i7nj}So/i, 3 C. B., 871 ; 15 L. J. (C. P.), 105, in an action for penalties for the representation of a dramatic piece, it was held that it was not necessary to show that the defendant knowingly invaded the plaintifi"s right. But the reason of the decision given by AVilde, C. J., 3 C. B., at p. 883 is: "The object of the legislature was to protect authors against the piratical invasion of their rights. In the sense of having committed an offense against the act, of hav- ing done a thing that is prohibited, the defendant is .in offender. Bat the plaintiff's rights do not depend upon the innocence or guilt of tiie defendant." So the decision in Morden v. Porter, 7 C. B. (X. S.), G41; 29 L. J. (M. C), 218, seems to be made to turn upon the view that the statute was passed in order to pro- tect the individual property of the landlord in game reserved to him by his lease against that which is made a statutory trespass against him, although his land is in the occupation of his tenant. There are other cases in which the ground of decision is that specific evidence of knowledge or intention need not be given, because the nature of the prohibited acts is such that, if done, they must draw with them the inference that they were done with the criminal mind or intent, which is a part of every crime. Such is the case of the possession and distribution of obscene books. If a man possesses them, and distributes them, it is a necessary inference that he must have intended that their first effect must be that which is prohibited by statute, and that ho cannot protect himself by showing that his ultimate object oi* REG. V. PRINCE. 11 I BGcontlary intent waa not inimoi-al. 12e{/. v. TllcJdin, Law Eej)., 3 Q. 13., 3(50. This and similar decisions ^o rather to sliow wliat is mens rea, than to show whether there can or cannot be con- viction for crime proper, wltlioiit mens rea. As to the hast question, it has become very necessary to ex- amine the authorities. In I'lackstone's Commentaries by Steplien, 2d c(h, vol. IV, book 0, Of Crimes, p. 98. " And as a vicious will without a vicious act is no civil crime, so> on the other hand, an unwarrantable act without a vicious will is no crime at all, so that, to constitute a crime ajj^ainst human laws, there must be first a vicious will, and secondly an unlawful act consctpient up- on such vicious will. Now there are three cases in which the will docs not join with the act: 1. "Where there is a defect of un- derstajidinj;, etc. 2. Where there is understandin<^and will suf- ficient residing in the part}', but not called forth and exerted at the time of the action done, which is the case of all offenses com- mitted by chance or ignorance. Here the will sits neuter, and neither concurs with the act nor disagrees to it." And at p. 10.'); "Ignorance or mistake is another defect of will, when a man. Intending to do a lawful act, does that which is unlawful; for here the deed and the will acting sei)arately, there is not that conjunction between them which is necessary to form a crimi- nal act. But this must be an ignorance or mistake in fact, and not an error in point of law. As if a man, intending to kill a thief or housebreaker in his own house, by mistake, kills one of his family, this is no criminal action, but if a man thinks ho has a right to kill a i)erson excommunicated or outlawed wlicre- ever he meets him, and does so, this is wilful murder." In Fowl- er v. Piuhjd, 7 T. 11., 50!>, the jury found that they thought the intent of the jdaintiii' in going to London was laudable; that ho had no Intent to defraud or delay his creditors, but that delay did actually hai)pen to some creditors. Lord Kenyon said, " Bankruptcy is considered as a crime, and the bankru])t in the old laws is called an offender; but it is a principle of natural jus- tice and of our laws that actus non reumfaclt, nisi mens sit rea. The Intent and the act must both concur to constitute the crime." And again: " I would adopt any construction of the statute that the words will bear, in order to avoid such monstrous eonse- fpiences as would manifestly ensue from the construction con- tended for." 12 AMERICAN CRIMINAL REPORTS. Ill Umrnc v. Gavton, 2 E. & E., 10, 2S, L. J. (^f. C), 210, the respondents were clmrf^'cd upon an infornmtioii, for liuvin^' sent oil of vitriol by the Great Western Kailway, without marking' or stating' the nature of the goods. V>y 20 and 21, Yict., ch. 4:J, sec. IGS, " every pers«»n wlio shall send or cause to he sent by the said railway, any oil of vitriol, shall distinctly mark or state the nature of such goods, etc., on pain of forfeiting, etc." Uy sec. 200, such penalty is recoverable in a summary way before justices, M-ith power to imprison, etc. Tlie resiK)ndeiit hml in fact sent oil of vitriol unmarked, but the justices found that there was no guilty knowledge, but, on the contrary, the res]>ondents acted under the full belief that the goods were correctly described, and had previously used all proper diligence to inform themselves of the fact. They refused to convict. It must be observed that in that case, as in the present, the respondents did in fact the i>ro- hibited acts, and that in that case, as in this, it was found, as the \iltimate proof, that they were deceived into the belief of a dif- ferent and non-criminal state of facts, and had used all i»roper diligence. The case is stronger, perhaps, than the present, by reason of the word "unlawfully " being absent from that stat- ute. The court upheld the decision of the magistrates, ludding that the statute made the doiiig of the prohibited acts a crime, and therefore that there must be a criminal mind, ■which there was not. " As to the latter reason, I think the justices were j)er- fectfully right; actus noii reiunfacit, nwi mens sit rea. The act with which the respondents were charged is an offense created by statute, and for which the person committing it is liable to a penalty or to imprisonment; not only was there no j)ro(>f of guilty knowledge on the part of the res])ondents, but the pre- sumption of a guilty knowledge on their part, if any could be raised, was rebutted by the proof that a fraud had I)een practised on them. I am inclined to think they were civilly liable." Lord Campbell, C. J. " I was inclined to think at first, that the pro- vision was merely protective; but if it created a criminal of- fense, which I am not prepared to deny, then the mere sending by the respondents, without a guilty knowledge on their jiart, would not render them criminally liable, although, as they took Nicholas's word for the contents of the parcel, they would be civilly liable." Erie, J. In Taylor v. Newman, 4 B. & S., 89, 32, L. J. (M. C), ISO, REG. V. PRINCE. SI tlie iiiforinntlon was under 24 and IT), Vict., ch. 90, sec. 2'^. " "Who- soever shall unhiwfully and wilfully kill, etc., any pij,'ei n, etc." The appellant shot pigeons on his farm belonging to a neighbor. The justices convicted, on the ground that the appellant was not justified by law in killing the pigeons, and, therefore, that the killing was unlawful. In other words they held that the only meaning <»f " uidawfully " in the statute was "without legal jus- titication." Tiie court set aside the conviction. " I think that the statute was not inteiuled to apply to a case in which there was no guilty mind, and where the act was done by a person un- der the honest belief that he was exercising a right." Mellor J. In Burl-master v. Jiei/nohls, 13 C. \^. (X. S.), 02, an informa- tion was laid for uidawfully, by a certain contrivance, attempt- ing to obstruct or prevent the ])urpo8e8 of an election at a vestry. The evidence was that that defendant did obstruct the election because he forced himself and others into the room before eight t»'cl(jck, believing that eight o'clock was passed. The question asked was, whether an intentional obstruction by actual violence is an otlVnse, etc. This (piestioo the court answered in the affirmative, so that there, as here, the defendant had done the prohiltited acts. But Erie, J., continued: " I accompany this statement (i. e., the answer to the question) by a statement that ujjon the facts set forth I ana unable to see that the magistrate has come to a wrong conclusion. A man cannot be said to be guilty of a delicit, unless to some extent his mind goes with the act. Here it seems that the respondent acted in the belief that he had a right to enter the room, and that he had no intention to do a wrongful act." In Jii(j. V. Jfihhcrt, Law Kep., 1 C. C, 184, the prisoner was indicted under the section now in question. The girl, who lived with her father and mother, left her home in company with another girl to go to a Sunday school. The prisoner met the two girls and induced them to go to Manchester. At Manchester he took the girl to a public house and there seduced the girl in question, who was under sixteen. The prisoner made no inquiry and did not know who the girl was, or whether she had a father or mother living or not, but he had no reason to, and did not believe that she was a girl of the town. The jury found the prisoner guilty, and Lush, J., reserved the case. In the Court of Crimi- nal Appeals, Bovill, C. J., Channell and Pigott, BB., Byles and \ u AMERICAN CRIMINAL RKPORTS. Lu h, JJ., qimslieil tlic conviction. Bovill, C. J.: "In the ]n\.-tcnt case there is no statement of any finding' of fact that tlio ])ri»(»ner know, or had reason to h(.'lieve, that the ^'irl wart nnder the hiwful care or cliarge of lier father or motlier, or any other person. In the absence of any finding of fact on tliiri \ui\nt, tlio conviction cannot bo finpported." Tiiis case was founded on L\r/. V. Green, 3 F. *fc F., 274, before :^^artin, V,. The girl waa under fourteen, and lived witli her fatlier, a fisherman, at Soutli- end. The jmsoncrs saw lier in tlie street, by herself, and induced her to go with them. They took her to a lonely house, and there Green had criminal intercourse with her. !Martin, J5., di- rected an acquittal; "There must," he said, "bo a taking out of the possession of the father. Here the prisoners picked uj) tlio girl in the street, and for anything that appeared, they miglit not have known that the girl had a father. The girl was not taken out of the possession of any one. The prisoners, no doubt, luid done a very immoral act, but the question was, whether they Lad committed an illegal act. The criminal law ouglit not to bo strained to meet a case which did not come within it. The act of the prisoners was 6cai)dalo:is, but it was not any legal oflenso.'* In each of these cases the girl was surely in the legal possession of her father. The fact of her being in the street .'it the time could not possibly prevent her from being in the legal possession of her father. Everything, therefore, i)rohibited, was done by the prisoner in fact. But in each case the ignorance of facts was held to prevent the case from being the crime to be ])unished. In Jieff. V. Tlnchler, 1 F. & F., 513, in a case nnder this sec- tion, Cockburn, C. J., charged the jury thus: "It was clear the jjrisoner had no right to act as he had done in taking the cliiid out of Mrs. Barnes' custody. But inasmuch as no imi)n.])er motive was suggested on the part of the profiecution, it might very well be concluded that the prisoner wished the child to live with him, and that he meant to discharge the ])romise which he alleged he had made to her father, and that he did not suppose he was breaking the laws when he took the child away. This being a criminal prosecution, if the jury should take this view of the case, and be of opinion that the prisoner honestly be- lieved that he had a right to the custody of the child, then al- though the prisoner was not legally justified. ^U' would be enti- tled to an acqiiittal." The jury found the j ih;oner not guilty. ,1(1 RKO. r. PRINCE. Iff In Ri'(j. V. Slci'jy, 8 Cox Cr. C, 472, tlio priridiier luul jmsses- filon of ^overiiinent utores, Homo of wliich were miirkL'd witlj tlio broiitl iiiTow. The jury, in unswc'r to u (|uesti(»n wliuther tho prisoner know that the copper, or any ])art of it, was marked, answered, " We have not sulUcient ovidenuo befory us to show that he knew it." Tho Court of Crijninal Ai)j)eal held that tho prisoner could not bo convicted. Cockburn, C. J.: ^^ Actus no n ream fac It, vlnl menu Hit ren is tho foundation of all criminal ])ro(!edure. The ordinary principle that there must be a guilty miml to con- stitute a guilty act applies to this case, and must be ini])orted into this statute, as it was held in licg. v. Cohen, S Cox Cr. C, 41; where this conclusion of the law was stated by Jllll, J., with his usual clearness aiul power. It is true that the statute says nothing about knowledge, but this must be inij)orte young to ifive an ellectual consent, and to iix that a^e at sixteen. The section in (piestion is one of a series of enactments, beginning witli sec. 4S and ending with sec. 55, forming a code for the pro- tection of women and the guardians of young women. These eiiactments are taken, with scarcely any alteration, from the re- ]iealed statute, 9 Geo. IV, ch. Ml, which had collected them into a code from a variety of old statutes, all rei)ealed by it. Sec. .5<» enacts, that whosoever shall " uidawfully and carnally know and abuse any girl under the age of ten years" .shall be guilty of felony. Sec. 51, whoever shall " uidawfully and car- nally know and abuse any girl being above the age of ten years and under the age of twelve years " shall be guilty of a misde- meanor. It seems impossible to suppose that the intention of the legis- lature in those two sections could have been to make the crime depend nj)on the knowledge of the prisoner of the girl's actual age. It would produce the monstrous result that a man who had carnal connection with a girl, in reality not (piite ten years Vol. I. — 2 '^ 18 AMERICAN CRIMINAL REPORTS, I ';H l{ old, Init whom lie on reasonable grounds believed to be a little more tlian ten, was to escape altogether. He could not, in that view of the statute, be convicted of the felony, for he did not know her to be under ten. lie could not be convicted of the misdemeanor, because she was in fact not above the age of ten. It seems to us tliat the intention of the legislature was to]»unisli those who liad connection with young girls, thougli witli their consent, uidess the girl was in fact old enough to give a valid consent. The man who has connection with a child, relying on her consent, does it at his peril, if she is below the statutable age. The 55th section, on which the present case arises, nses pre- cisely the same words as those in sections 50 and 51, and must be construed in the same way, and, if we refer to the rej)ealed statute 4 and 5 Phil, and IMary, ch. 8, from the 3d section of which the words in the section in question are taken, with very little alteration, it strengthens the inference that such was the intention of the legislature. The preamble states, as the mischief aimed at, that female children, heiresses, and others having expectations, were, un- awares of their friends, brought to contract marriages of dis- paragement, " to the great heaviness of their friends,'' aiul then to remedy this, enacts by the 1st section, that it shall iiot bo lawful for anyone to take an unmarried girl, being under six- teen, out of the custody of the father, or the person to wliom he, either by will or by act in his lifetime, gives the custody, unless it be Innajide done by or for the master or mistress of such child, or the guardian in chivalry, or in socage of such child. Tills recognizes a legal right to the possession of the child, de- pending on the real age of the child, and not what ap])ears. And the object of the legislature being, as it appeal's by the i)re- ainble it was, to protect this legal right to the possossiuii. would be l)affled, if it was an excuse that the person guilty of thy tak- ing thouglit the child above sixteen. The words "unlawfully take,'* as used in the 3d section of 4 and 5 I'hil. and jSIary, ch. 8, means without the authority of the master or mistress, or !i, mentioned in the imi guar lately preceding sect ion. in There is not much authority on the subject, but it is all favor of this view. In litfj. v. Rohbu, 1 C. & K., -ioO, Atcherly, Sorgt., then acting as ju ^gc of assizes, so ruled, a , ap])aren tiy (though the report leaves it a little ambiguous), with the ap- i th f..r or thei law se( stati out, rie( ag.'i wit thoi ant to II ear} der, ingj RE(}. V. PRINCE. If proval of Tiiulal, C. J. In lieg. v. Olifier, 10 Cox Cr. C, 402, Briinnvell, ]3., so ruled at the Old Bailey, apparently arriving at tlie conclusion independently of liaj. v. liohins, 1 C. k K.,45G. In Jl('ut wliat the statute contemplates, and what I say is wrong, is the taking of a female of such tender years that she is prop- erly called a (/id, can be said to be in another's possession and in that other's care or charge. Xo argument is necessary to prove this; it is enough to state the case. The legislature has enacted that if any one does this wrong act, he does it at the risk of her turning out to be under sixteen. This opinion gives full scope to the doctrine of the )aens red. If the taker believed he had the father's consent, though wrongly, he would have no ■iiU'/is rcii/ so if he did not know she was in anyone's possession, nor in the care or charge of anyone. In those cases he would not know he was doing the act forbidden by the statute, an act which, if he knew she was in possession and in care or charge of anyone, he would know was a crime or not, according as she was under sixteen or not. lie would not know he was doing an act wrong in itself, whatever was his intention, if done witl.iout law- ful cause. In addition to these ''onsiderations, one may add that the statute doiis use the word " unlawfully," and does not use the words " knowingly " or " not believing to the contrary." If the question was, whether his act was unlawful, there would be no ditliculty, as it clearly was not lawfid. This view of the section, to my mind, is much strengthened by a reference to other sections of the came statute. Sec. 50 nuikes it a felony to unlawfully and carnally know a girl under the age of ten. Sec. 51 enacts, when she is above ten and under twelve to unlawfully and carnally know her is a misdemeanor. Can it be supposed that in a former case a person indicted might claim to be acquitted on the ground that he had believed the girl was over ten thougJi under twelve, and so that he had only committed a misdcmaneor; or that he believed her over twelve, and so had committed no ofl'euse at all ; or that in a case under 00 AMERICAN CRIMINAL REPORTS. sec. 51 he could claim to be acquitted because he believed licr over twelve. In both cases the act is intrinsically wrong; for the statute says if "unlawfully" done, the act done with a mens rea is unlawfully and carnally knowing the girl, and the man doing that act does it at the risk of the child being under the statutory age. It would be mischievous to hold otherwise. So sec. 50, by which, whoever shall take away any child under fourteen with intent to deprive parent or guardian of the ])0S- session of the child, or with intent to steal any article upon sucli child, shall be guilty of felony. Could a prisoner say, '" I di^l take away the child to steal its clothes, but I believed it to bo over fourteen?" If not, then neither could he say, " I did tiiko the child with intent to deprive the parent of its possession, ])ut I believed it over fourteen." Because if words to that ell'eet cannot be introduced into the statute where the intent is to steiil the clothes, neither can they where the intent is to take the child out of the possession of the parent. But if those words cannot be introduced in sec. 50, why can they be in sec. 55? The same principles .apply in other cases. A man was held liable for assaulting a police officer in the execution of his duty, though he did not know he was a police officer (10 Cox (!r. C, 302). AVIiy? Because the ac^ was wrong in itself. So, also, iu the case of burglary, could a person charged claim an ac(piittal on the ground that he believed it was past six when he entered; or in housebreaking, that he did not know the place broken into was a house? Take, also, the case of libel, piildished when tlio publisher thought the occasion privileged; or that he had a de- i" I .- under Lord Campbell's act, but was wrong; he could n(jt be riT' !f^d to be ac(piitted because there was no mens rea. Vili V . L!joaase the act of publishing written defamation is ^■,-ro; i V .ore there is no lawful cause. As to the case of the marine stores, it was lield properly that there was no tmns rea, where the person charged with the jios- session of naval stores, with the Jidniiralty mark, did not know the stores he had bore the mark; lieh', 8 IJarb., COo; Kiui/o/i v. The People, 2G N. Y., 203; The State v. Shean, 32 Iowa, 88; Andre v. The State, 5 id., 389; Boak v. The State, id., 430. The preceding section relating to seduction is ditl'erent. It only requires that the female shall be " of good repute for chas- tity." The authorities cited by the state do not bear on the exact question under consideration. The judgment is reversed, and the cause remanded for a new trial. The clerk will certify to the warden of the state prison as required by law. i SLATTERY v. I'llOPLE. 29 SlATTKUY V8. Pko1'I-K. (70111., 217.) Ahohtion : Sitilittc coiislmcd — Intent — Aihnissions — Kridinoc, Tlie rcspondt'nt wiw conviik'cl on un irulittinent cliiiiviiiy liiui wtli tV'loniousIy bi'iitintf mill Ntrikiiitf a iirfj^iiimt woiiiiiu witli int«'iit to cmise her to mis- Ciiny. 'i'lio Htatuti' iiiiilfr wliii'li tht- indiitinont wax foiiiul in as follown: " Whoever, liy ineuiis of iiiiy iiiHtruiiieiit, medicine, druj,', or otiier meiuw whatever, causes any woman prejfiiant with child to abort or miscarry," etc.: //(■/(/, that the statute only ainjiios to those who intend to produce an abortion. Silence under accusations is not always to bo considered as an admission of tht ir tnith. Where the resi)ondent had promised to Ijo on his good behavior at a family in- t4'rview, to wh'-^h ne had intluced a frii'nd, by means of such promise, to yo with him, it was livleratioii of act and intention, or criminal negligence, and the intention is manifested by the circumstances connected with the ])erpetration of the offense, and the sound mind and discretion of the person accused. The only marks upon the person of Mrs. Slattery were a dis- coloration about a linger's length of one thigh, a mark on ouv; of her arms, and a slight discoloration at one spot on her face, but Low these were produced no witness testified. It was in j)roof she was abouL ree months gone in pregnancy, had had three or four miscarriages previously, and but a short time before this last one, she had ridden some miles in a lumber wagon, to adancin" party, where she danced all night and into the morning, and rode home in the same conveyance. One Taylor, claiming to be a doctor, gave it as his oi)iniou that these marks appeared to have been made three or four davs previous to the miscarriage, and in his opinion, ])roiluce(l it; whilst Drs. Thompson and Carlton testify, the bruises, as de- scribed by Taylor, would not cause miscarriage to a healthy woman. They further testify, after three or four miscarriages, it becomes habitual, and the chances are against the woman car- rying the child the full time; and they further say that, with such a woii.an, lifting heavy weights, any hard work] fast walk- ing, riding in a lumber wagon, dancing, or anything of that kind, would be liable to induce miscarriaire. been deeresent at the interview, he would keep his temper — would be on his good be- havior. He felt i»ledged to make no denial of any statement Larrimore should make, but to keep his temper under strict con- trol, any:" //(■/ii the trial of an indictment for bein<^ a conunon seller of spirituous liquors, a witiKss teslilied that he saw sL\ barrels beinj^' moved into tlie defi.'udaiit's cellar, and that tiie teamster told him, in the defeinhnit's presence, that they were bar- rels of ^^in; and the jury were instructed tliat the remark of the teamster could not be resrarded by them, miless satisfied that the defendant heard it: Jhlil, that this instnjction miylit have been understood by the jury as imiilymyj that the defendant's silence was, at all events, and without reference to the accompanying riicumstances, an acijuiescence in the h'uth of what v.as said; and that tlie di- f''!idant was therefore entitled to a new triaJ. Tlu^ comi say: " An acquies- cence, to have the effect of an admission, nnist exhibit some act of the mind, i-unie purpose designed, some olject intended. IJeforo acquiescence in the lan- gu;4,'e or conduct of others can be assumed as a concession of the truth of iuiy partii ..'. ''• statement, or of tln^ existence of any ]iarticuhir fact, it must plainly api)ear that the languagi' was heard, and tlie conduct understood. Nor is that alone sutHcient. It sliould also be made to appear tJiat the party to whose silence a consei|uence so imi>ortiint and material is attributed had not only an opportu- nity to spciik for hiniM'lf, Ijiit was ui a situation where it would have b.'cn tit. suitable, or proper for him, or he would Iiave lieen likely, accoriiiiit,'' to common exiierii'iice, to have done so. (\)»tminiirv(iltli r, llnmii. 1 Oray (Mass,), 4^7. In Mitttiirk.t r. Iji/iii'Iii, Ui Vt,, 11:>, tin; plaintitf d e' ired in assumpsit, on a special contract, by the terms of which he was to purchase wool which the de- fendants were to sell, and the profits were to be divid'il. Tiie plain Lilf, to prove the allegations in his deelaiatiou, introduced one IhMiiley as a witne>s, who testi- fied tliat. at fill' ri'i|uest of the plaintitf, he called with him at the defendant's store, and that the (ilaint iff stated to the defendant liVman, the terms of the con- tract, as set forth in the declaraficui, and said he was informed that the wool had been sold for a price which would entitle him to one-half of the profits, and de- niaded said proiiortiou, ami that Tiymairs only n'ply was. that he was ready to settle with him. plaintiff; but that they did not on-e him anything, but that he, ]ilaintirt', owed them. (h\ cross-examination, the witness said he did not recollect certainly that anything was said about the defendant's furnishing money for the lilauititf to pnrcha.'^e wool with. The jury were told that the ti'stimony of Ihadley was competent evidence, as tending? to prove, by an implied admission on the part of the defendant Lyman, that the contract was a.s claimed by the plaintitf; but that its weight must depend upon the cii'cuuistiuices attending it, of which they were judges. Vi.h. I. -3 1 w ^■■•■It .! : P p M •di AMERICAN CRIMINAL REPORTS. The oifinion of the coiui was delivered by UeclScld, J., who uses tliis lanfnia!;^ : "Tlie most iinportiint i)ractical question by far, ditscusued iii the case, nMnaiiid to be (letenuined. It seems to have been generally considered tliat all conversa- tion had in the presence of a paity, in reffard to tlic subject of htiyation, uiitiiit properly be f,'iveu in evidence to the jury, lint ui Vail r. SiroiKj, 10 \i., 4"»7, and in Gailc r. Lincoln, 11 id., 152, some qualification of this ndc is establi^lu'd. It is there lield, that unless a claim is asserted by the claimant or liis ayent, and ilistinctly made to the party, and calling naturally for a reyily, mere silence is no Hi'ound of inference a^'ainst one. And we think even in sucli a ea.'^e. tluit lutn-e silence ought not to conclude a pixrty, unless he thereby induces a paiiy to act upon his silence in a manner ditt'erent from v 'lat he otherwise would have actod. There are many crises of this character when one's silence ought to conilude him. IJut when the claim is made for the mere purpose of thuwing out evidence, as, in the present case, it is obvious must have been the fact, or when it is in the way of altercation, or, in short, uidess the piirty asseitijig the claim does it with a 'iew to ascertaui tlio claim of tlie person \x\)0\\ wliom he makes the demand, luul in order to know how to regulate his own conduct in the matter, and this is known to the opposite pm'ty, and he remains silent, a-nd thereby leads the adversary astray, mere silence is, and ought to be, no ground of ijiference agiunst any one. Tho liabilities to misapprehension, or misrecoUection, or misrepresentation, are such, th t this silence might be the only security. To say, under such a dilemma, tliat ...ence shall imply assent to all which an antagonist may see fit to ass"rt, would involve an absurdity little less gi"Oss than some of the most extravagant carica- tures of this caricature-loving age. Witli some men, perliaiis, sLleiici.' would bo some ground of hiferring assent, and with oUiers none at all. The testimony, then, would depend upon the character and habits of the party, which would lead to the dii'cct trial of the parties, instead of the case." State vs. Clakk. (.54 N. II., 450.) AnuLTERT: Proof of nmmage in criminal cases — Inilictntcni — Comparison of hamhcriiDKj. Under an imhctment charging Liie respondent, a married man, with adulter- ous and la.scivious cohabitation with a single woman, tlie pn(-:i'enlio]i offered evidence tending to prove the mamage of the res)iondent in 1^00. 'To avoid this man-iage, the respondent testified in his own belialf tliat he liad lieen man-ied in 1>'04, to a woman who was still hvuig, and from whom hi' Jiad never been divorced: Hchl, that it wa,s sufficient to nuiintain the allega- tion of the indictment, if the jury found either of these mairiagi's to be a legal, subsisting marriage at the time of the cohabitation, and that the evi- dence as to both was properly submitted to thejuiy. Evidence of a mamage in fact in a foreign jurisdiction is prima farii> evidence of a valid marriage, and it is not r 'cessaiy to prove the foreign law. AVhere, m the trial, the respondent admitted the genuineness of a certain letter it was held that the jury might use it to compare with the handwriting of spoil as ;i ton liiiii that liiiii whir si(k'r tlicy ])L'1'S thu It thiMi 1)0 til hi) Sit To tl man •was those STATE r. CLARK. 35 .! I lottors wlioso ^'I'lmiucnoss was diriputi'd by Uie rospondont, but to whoso p'liuini'iii'ss a witiicsn t<'stitii'(l. A\'hort-' ii.n iiidictnu'iit cliiir};iii,i,' tho respondent, a niiUTifd man, with aihdterous and hiscivions cohabitation wtii J., does not alk'f,^' in exjtfess terms that J. is not liis wiic, but doi's allf^'c that J. is a suii^ii' woniim, it suttioiontly ap- pears on a motion in arrest of ,indj,'nieiit, that J. is not respondent's wife, and jud.i,'nient will not Vie arrested. lM>itTMj:\T, t*]iiii'i'il, A. I). isTl, at Keciio, in tlie county of Chesliire aforesaid, v.irli force and arm?, and from said day until the day of the find- iiiij of this indictment, did and ever since has continued to and still does lewdly and lasciviously associate and cohahit witli one CHiai'lotte ]\r. Johnson, of said Keene, a single woman; he, the said Thaddeus U. (^lark, during all the time aforesaid heing a mar- ried man and having a lawful wife alive, who had not during any of said time heen absent, ai\il not heard of or from for the s]Kice of three years together, nor re]">orted and generally lielieved to he dead, and from whom the said Thaddeus J>. Clark has never lieen legally divorced, and his marriage with whom prior to all the time aforesaid did not take jtlace within the ago of consent, Contrary to the form of the statute in such case made and pro- vided, and against the peace and dignity of the state. The re- spondent pleaded not guilty, and upon the trial, offered himself as a witness, and testified. Upon his cross-examination, two let- ters were exhibited to liim })urporting to have been written by him to the Hudson wonuin hereinafter mentioned, but he denied that thev were written bv him. A letter was then exhibited to him purpctrting to have been written by him to a tlilrd person, which he admitted was genuine. The counsel for the state then proposed to read the llud.-on letters to the jury, for them to con- sider if uj)on a coni])arison of those letters with the genuine one, thev should be satisfied that they were all written by the same person. To this the respoiulent objected, bnt the court allowed the letters to be read, remarking to the jury, that they must not then draw any inference whatever from them, 1)ecause it might be that they would not, upon a comparison of the three letters, lie satisfied that the respoiulent wrote the two Hudson letters. To this the respondent excepted. Subsecpiently the Hudson wo- man testified that she received tlie two letters by mail, that she was well ac(|uainteil with the respondent's handw'riting, and that those letters were in his handwriting. (i 4 If 36 AMERICAN CIUJIIXAL RErORTS. The state ofFercd as a witness Jennie M. Clark, who testified that on May 3, 1800, lier name was Jennie 'SL Ilud&on; that j^lie was tlien a widow; tliat on tliat day she was married to tlie re- eijondent, at Binghamton, New York, hy F. A. Durkee, a jns- tico of the peace, and took frum said Durkee a certiticate of rre an-' ; fter, and in tlie liabit of solemnizina: marriaijres, and tluit lie nuirried tlie JLudson wu- man on that day to a man calling his name Clark, but that he was of the opinion that the respondent was not the man. The name inserted in the certificate was Thomas Clark. The resjioiid- ent testified that he had sometimes gone by the name of TJiomas Clark. The respondent testified, on cruss-examination, that in the spring of 1SG4 he was married to Marietta Xurton, in Elniira, !Xew York, by James Dewitt, who was a justice of the peace; that he then had no living wife nor she any living husband; that that marriage was a legal marriage, he supposed. Xo objection was made, until after a verdict of guilty had been returned, to the validity of the Xorton marriage, and none to the validity of the Hudson marriage, except that the man to whom the Hudson woman was married by Durkee was not the respondent. The court instructed the jury that they were authorized to find that the Xorton marriage was a legal one; also that they were au- thorized to find that the Hudson marriage was a legal one if the Xorton woman had been lawfully divorced from the respondent previous to May 3, ISGG. To these instructions the respcjndent excepted, upon the ground that there was no evidence that, by the laws of the state of Xew York at the time of tlK)se mar- riages, a justice of the peace was authorized to solemnize mar- riages in that state. The respondent did not refpiire the state to prove that he cohabited with the Johnson woman as charged iu the indictment, but admitted it. There was no evidence tending to show that the Xorton won)an had l)een divorced from the re- spondent, except what v>-as derived from her own declarations. These declarations were introduced into the case as part of an affidavit of the respondent put in evidence by the state; also, as a part of sundry conversations which were proved. The court ly fin and s( the C( At the M. Ill COUIlb he w; woma Y(.>rk, his CO no mil matte tical, and s marri \yi ^1 I STATE r. CLAUK. oi instniPtcd tlio iurv that tliey nii'^lit t-oii.'^i'ler tliese dccliirationis, and were authorized to find tliat siieli a divorce Imd been jiro- ciired; also, tliiit if tlie respondeat was informed tliat the Xor- ton woman had lieen divorced fi'om him, anj to ascertain the trntb of the report, and, uj)on the informa- tion he obtained, bonestly believed that sbe bad pnjcured a law- ful divorce, and that be bail no living wife durin^i^ the time be cobabited witb tbe Johnson wonnin as cbarged in the indictment, tben it would be their duty to brlni,' in a verdict of not guilty. Tbe re>pondent moveter ov anv minister was authorized to sulemnizo marriages, althoui^h it did appear tli!)t he had for a lon^ time oflieiated as a niiinster, and liad mar- ried other persons. One ohjection therefore, to the proof of marriaire in State v. Kean, namely, that the official character of the ])erson solemnizinif it was not shown, does not exist here; while the other, that it did not appear that hy the law of Maine a minister was authorized to solemnize marriage, which seems to he identical with that taken hy the defendant here, was over- ruled, and the proof of mai-riage held to he sutlicient. That case must therefore he regarded as decisive of the ]»resent so far as regards the [»roof of marriage to Hudson. See Bish. M. & D., sees. 4'J-t, .H>.5, 4!>(;. I'ut then comes the testimony of the defendant as to his mar- riage with Norton in 18(»-1, and, as already ohserved, if the fact was as stated hv him in reference to that marriaife, the marrian'c M-itli Hudson was no marriage at all, assuming that the tie had not heen dissolved hy death or a divorce. But his counsel argue that his testimony is not sufficient proof of a marriage in fact with Norton. If that he granted, it follows that the marriage with Hudson was the earliest and in fact the onlv marriage iM'oved, and the case of the state, so far as regards i)roof of mar- riage, was made out; hut if, on the other hand, we are to take it that the testimony of the defendant himself sliowed the fact of a marriage with Norton, his ]>re(licament is not clianged, tlie only ettect of that testimojiy Ijeing to change the marriage which is made the hasis of his conviction. If we look now at the instructions to which exception was taken, their only fault seems to he that they were too fiivorahle to the defendant. In the first place, we think there was no competent evidence whatever of a divorce Itetween Norton and the defend- ant. Therefore, allowing that ([uestion to go to the jury with the instruction given as to the legal etlect of a helief on the part of the defendant that such divorce had heen procured, opened to him one independent ground of defense, to which he was not entitled upon the evidence. But the court instructed the jury that they were authorized to iind that the Norton marriage was 40 AMERICAN CHIMINAL REPORTS. a le^'iil one. So fur, wo liiivc no doubt, tlie nilin-,' was correct. It stiuids substantially the siuiie as the jn'oof of tlie Hudson inar- via"e, which lias been already considered, exce]it that it rested upon the testimony of one witness who was preseiit at tlie cere- mony; that i.s, the defendant himself, instead of two. It all de- pundcd upon whether the jury believed the testimony of the defendant. As to that niarria|,'e, the case id uot to be distiu- ^'uished from State r. Kean. The jury were further instructed that they were authorized to find that the Hudson niurriai,'e was a legal one if the Norton woman had Ijcen lawfully divorced from the respondent previous to ^[ay 15, ISiin. That the jury were auth(»riz;ed tu iinil the fact of marriairc with either Norton or Hudson, from the evidence reported, we ha\e already seen. "W'e also hold that there wa,s no evidence of a divorce. Xow, it is not possible to say but that the jury may have found a divorce, when there was no legal ev- idence to sustain such finding. What follows? Simidy that the verdict may rest upon the fact of marriage with Hudson, when it slnndd rest upon the fact of nnirriagc with Norton, for if the jury found a divorce obtained by Norton, whether u])on compe- tent or incompetent evidence, they must of necessity have found the fact of marriage with Norton; and inasmuch as we hold that there was evidence upon which they could legally lind such marringo, though not a divurce, the defendant's situation was nut changed, and it seen;s to be inatterof demonstration that he was not prejudiced. No matter which horn of the dilemnui be taken, the fact of marriau'e was made out and was certainlv found by the jury before they could find a divorce from the first wife and a marriage to the second. That is, if the narrowest and most restricted interpretation possible be ])nt upon the instruc- tion, and it be understood to mean that the jury could not find a marriage with Hudson unless they first found a divorce from Norton, it was too favorable to the defendant, because they might have disbelieved the defendant's testimonv and found no marriage with Norton. It would follow that thev could find no CD 4/ divorce, and then, that although th<3re was abundant pnxjf of marriage with Hudson, still they could not find the fact, because they could not first find the fact of a divorce procured by Norton prior to May 3, ISCO, the date of the marriage with Hudson. The jury were probably instructed that if there was no mar- STATE (-. CLARK. H riagc with Norton, tlicre couUl ho no divorce, iind tlint in such ciise they would be at liberty to ilnd ii inarriiifrc with Hudson. ]»iit however tlmt may have Ijeen, the only faidt with the iiistnic- tiiMiJ^ clearly is, that they were too favorable to the defendant, and there can be no doubt but that the fact (»f luarria^^e, art re- tjiiired by the statute, mu8t have been and was founs were taken is of no conscipience. The 1 >maining (piestion is, as to the sufficiency of the indict- ment. Tins question arises njum a motion in arrest of judg- ment, on the ground that the indictment contains no averment that the living wife therein mentioned and the said Charlotte M. Johnson are not one and the same person. Tlie indictment is evidently framed u])on see. 5 of ch. 2.5(5 of the (len. Stats., which enacts that '*if any person having a husl)an(l or wife alivo s-liMJl marry or cohabit with any other jierson, such person so iiiiirrying or cohabiting shidl be punisheil," etc. Tlie indictment charges that the defendant has and still does lewdly and lasciviously associate and cohabit with one CMiarlotto ^1. .lohusnn, single woman, he, the said Thatldens I*. (Hark, du- ring all the time aforesaid, being a married man, and having a lawful wife alive, etc. It is doubtless necessary that the indict- ment should set forth the oit'ense in the lauiruaije of the statute, or, at least, in terms c<[uivalent. Stifio v. Gove, 34 X. II., 510. And it is objected by the defendant's counsel in argument that the description of the otl'ense is imperfect and insu-iieient in that respect, the words lewdly and lasciviously associated not found in the statute, being inserted in the indictment. AVe think this objection is not well fouixled, for the reason that those words may be stricken from tlie indictment as surplusage, and there still remains a clear and a distinct description of the statutory I i^s ( I ^^1 42 AMKUICAN CRIMINAL RKPORTS. Ml offonsc, diiu'^'cd in the very laii^'nn<,'c of tlio statute, nnmely, tliiit the ivs]M»ii(loiit, oil, etc., did uiid still tloes coliahit with oiio Charlotte M. ./ohiisoii, siii^de woman, etc. Ihit the iiidictiiicnt does not alle;,'e, in so many words, tliat Charlotte ,N[. .Johnson, a sin;,fle woman, was not tlie lawful wife of Tiiaildeiis 15. (Marie, a married man; and tliis is tlie fault niton which the motion in arrest was hasL'd, and whicli is mainly in- sisted on now hy the defendant in support of tlnit motion. The case shows that it distinctly appeared at the trial, and was not questioned, that Xorton, Hudson and Johnson were threo different persons, and without this the verdict suihcicntly settles the fact that Johnson was not the wife of the defendant Clark. Under the circumstances, it would seem to he a waste of time to inquire whether a form, that ai)i)ears to have been used and ap- proved without objection, is strictly and technically ])erfect or not. The objection conies too late. If the averment that Thadde- ns B. Chirk, a married man, cohabited with Charlotte ]\r. John- son, a single woman, is not a suflicicnt allegation that Johnson is another i)erson <"roin the lawful wife of Clark, wc think the defect is one of form, aiul o])en to amendment under (ien. Stuts., ch. 242, sec. 13. It differs widely from the cases referred to in the defendant's brief, where the fault was in the description of the offense. The objections must all be overruled, and there must ])o Judgment on the verdict. State vs. Goouknow. (Go M.;., ;».) Adulteiiy: Crlmhial hitrnt — Ignorance of the htiv. On the trial of an imlictmont for mlnltcry, tlio rusponaunls oircred to [mw tliat they suited in good faitli under the iidvice of a justice of th(> i.ciuv, and hoiiC.:t!y thouglit they were committing' no offense. Ihhl, tliat tlie evi- dence was properly excluded. Ignorance of tlie law Ls no excuse for crime. To constitute a crime, there must he a crijninal intent, hut when an act is uidawful, an intent to do that act, havhif? a full knowledfre of the facts, is a criminal intent without regard to the party's knowledge of the law or' that the iict is unhuviul. Indictment, alleging adultery on November 21, 1ST3. Fey, .^ etl as 1 i:., i> "\'ork, as hut is:;?, deuce ]iortin that n (•ey an Tlr fieor_ and th to, Cai this st last na not ret said V had III: by sai(| did judge cepti J,. I. must been jiei'so of. 43 ^U the n 3 Grei In forme the m to hu identi to sen II. r STATE r. OOODKNOW, 4$ The feiimlo dufciulimt was k';,'ivlly married to Gcor;^'c AV. Iliis- poy, April Md, 1S(;1, iit Turnor, wliere tlioy subsi'^uuntly cohabit- ed as husband and wilV'. Tiioy afterwards separated; and, ()ctul)er l."i, |S(;r>, tlie di'tViidaiits were united in niarria^'e by one Fsaac J. "^'oi'lv, a justice of tiie jjeaee, and tliey ever afterward cohabited lis hii>b:ind iind wife, Tliere warf evidence tliat, I)ecend)er 14, IsTM, (leorn;t? \V. llnssey was alive at JJyroii, Michii;-aii (the evi- dence bein<,' tliiit his niotlier received a letter of that date, pur- ]iurtin«^ to come thence^ from him by due course of mail), and tiiat notlivorce had ever been decreed l)etween (ieor^'e W. llus- (■ev an(' Uydia llussey by the courts of this state. Th 'endaiits otl'ered to prove that, prior to June, 1805, (Jcor_, . 1 1 ussey had deserted and al»andoned the said Lydia, and that in June, 1S()5, he marrieil another woman from Toron- to, Canada, and introduced her to several persons in Portland, in this state, as his wife, and exhibited to them a certiiicate of tho last named marriajjje; that he soon after left this state ami had not returned; that October 1(5, 1805, the defendants exhibited to said York atlidavits from various parties that (.Jeo, W, Ilussey had married luiother woman; that they were thereupon advised by said York that they could lei^ally intermarry; and that they did so intermarry in <^ood faith; all of which the ])residing judije excluded, and the defendants, tho verdict being g\iilty, cx- cei)ted. /,, Jf. Ifiifi'/i'insoti and A. R. Savage, for tho defendants: I, To sustain an indictment for adultery, three particulars must be proved; the co/'jhih delicti,' that one of the parties had l)oen ]>reviously married to some other person, and that such person was alive at the time of the acts of adultery complained of. Oreeid. Ev., §g 204, 207; 2 AVhart. Grim. Law, ^§ 2051-2; 43 ^fe., 25S, These each must be i>roved. As regards the third, the mere ])resumptiou of the eontinuiince of life is not sufficient. 3 Greeid, Kv., 207. In the jtresent case, tho only evidence tending to show that tho former husband of Mrs. Hussey was alive at the time alleged in the indictment was a letter purporting to have come from him to his mother. The handwriting of the letter was not even identified; and this evidence is, we contend, clearly insufficient to send a man and woman to state prison upon. II. Tho defendants ap])ear to have acted in entire good faith. U IHl' 44 AMERICAN CRIMINAL REI'ORTS. P They sought .iiul acted upon the advice of the officiivting magis- trate, whu M-ati prci^uiuably qualified to give them jiropcr advice. There are numberless instances where parties are relieved from the consequence of their acts, done in accordance with the advice of those whom they may reasonably suppose to be qualified to give the same, including magistrates and such; much mure, they slionld not be condemned. Tl-.e evidence offered by the defendants, and excluded l)y (he presiding justice, shows there was no knowledge or intent of committing any wrong, much less a crime. Knowledge and intent, where nniterial, must be shown by the prosecutor. 1 AVhart. Crim. Law, § C31; Wrii/fd v. The Stute, 6 Yerg., 345. The evidence offered and excluded shows that the defendants acted in good faith, and that the best meaning person by a mis- take may be thrust into ])rison for a term of years. G. C\ Wnuj, county attorney, for the state, cited as directly in point Coinmomoealth v. Nash, 9 Met., 472; ScDiie v. Thomp- son, G Allen, 591, and same parties, 11 Allen, 23. Petkks, J. The respondents are jointly indicted for adultery, they having cohabited as husband and wife while the female re- spondent was lawfully married to another man who i.s still alive. The oidy question found in the excejitions is, whether the evi- dence ofierud and rejected should have been received. This was, that the lawful husband had nuirried again, and that the justice of the peace who united the respondents in matrimony advised them that, on that account, they had the right to intermarrv, and that they believed the statement to be true, and acte'tur v. /Stfite^'M) N. J., 125; Cnitxl Stdtfs V. Ant/io/t)/, 11 I'latchf., 200; Uiufed iSfatcii v. Tahitoi; id., 374; 2 (ireenl. Cr. J.aw, 218, 244, 275, 589. JJhick V. Wan/, 27 Mich., 11)1; aS'. C, 15 Am. Law II., 102, and note, 171. The rule, though productive of hardships in partic- ular cases, is a sound and salutary maxim of law. Then, the rc^lK>n(]ents say that they were misled by the advice of the nuigis- trate, of whom they took counsel concerning their marital re- lations. J5ut the gross ignorance of the magistrate cannot ex- cuse them. They v/ere guilty of negligence and faidt, to take his advice. They were bound to know or ascertain the law and the facts fur themselves, at their i)eril. A sutlicient crinunal in- tent is conclusively i)resumed against them, in their failure to do so. The factti otl'ered in proof may mitigate, but cannot excuse the (iU'ense diarged against them. There is no doubt that a person might commit an unlawful act, through mistake or accident, and with inn.icent intention, where there was no negligence or fault, or want of care of any kind on his part, aiul be legally excused fur it. Jlut this case was far from one of that kind. Here it was a criminal heedlessness on the part of both of the respond- ents to do what was done by them. The Massachusetts cases, citud by the counsel for the state, go much further than the facts of this case r.e., each of whicli requires a particular examination separately. As to the ])hysica] act done by A., let it be supjiosecl that A. strikes I], a blow with a stick on tlie liead, and wounds liim by a bruir-e that is painful; it is the blow given by A., and not the wound left on the head of ]J. that constitutes the ]>liysi('al act that is meant in the first part of thedetinition, by the cxi>ression, " use of violence upon the person of another." Violence upon the person, as here used, means the force U]wn the ])erson, re- ferring to the act of A. in using it on the person, and not to the intended effects on J), in receiving it on his person; for the ex- istence of the pain, or shame, or other disagreeable emotion of the mind, on the part of !>., as the effect or result of the blow on his person, is wholly immaterial, and need not be jiroved, and when proved in any case, is proved only as an aggravation of, and not as a necessary fact to the complete establishment of the bat- tery. The means used by A. to exert the force on the person oi B. may be anything capalde of producing ]>hysical force, as the hand, the foot, a stick, a rock thrown by him, or a bullet shot out of a gun or pistol by him, so as to take effect on the person, however slight. Ilence, it is described in the books by the ex- pression, "the least touching of the person of another," the word touchini>: havini; reference to the act of A. that took Cilect on the person of ]>., and not to the bodily or mental sensation of B. produced by it, further than that it did touch him. The case above su])posed. presujiposes and evinces that A. has had the physical capacity to do the act, and also embraces the additional element that he intended to do it, or that in the act of doiui; it, Vo intended to do something else, whicli was done so negligently or carelessly or recklessly as to be tantamount in law to the in- tention to do what he did; otherwise, the act would be purely accidental, and therefore not cr.lpable. In addition to the physical act done by A., with the accom- panying intention, director indirect, as just specified, it must also be done "with intent to injure" B., in order to render the bat- tery unlawful. This injury intended by A., the assailant, may be to the mind of T>. as well as to his person. Our criminal code provides that " the injury intendeoth inclusive, raschal's Dig.) As the acts and words of McKay put Duke under constraint, it may amount to false imprisonment, which may be accomplished by threats and various other means not amounting to, and do not, therefore, neces- sarily include an assault (Paschal's Dig., art. 21(5!) [508] ). AVhen " words are used, which are reasonably calculated to i>roduee and do produce an act which is the immediate cause of death, it is homicide," committed by the person using them, and is then of such serious consequence that the law takes notice of the words as constituting the cause of the death (I'uschal's Dig., art. 2207 [54G] ). There is no provision giving such or similar ellect to jnere words in the minor offenses, such as assault. Whether pointing an unloaded gun or pistol is an assault, when the person pointed at is ignorant of the fact of its l»eing unloaded, has long been a mooted question, which has been de- cided both ways by the courts, in both England and America, «ind as a question at common law, in reference to all of the de- cided cases bearing upon it, civil and criminal, it is one of ditli- culty, that has often been liable to changes of opinion and decis- ions, as may be seen by reference to the numerous cases cited in the elaborate brief of the attorney general in this case, for the definite settlement of which long continued conflict, it may be presumed, it was positively and unqualiliedly declared in the penal code, that "pointing an unloaded gun, or the use of any like means, with which no injury can be inflicted, caimot consti- tute an assault," which would be imperative on this court, had all the decisions, both in England and America, been one way, anger McKAY. V. STATE. 65 nnd that njjjainst tills rule, instead of being vascillating and con- flicting, as they have been. Mr. IJisliop, in his moat valuable work on criminal law, says: "An assault is any unlawful physical force, partly or fully put in motion. Avhich creates a reasonable apj>reheiision of immediate physical injury to a human being" (2 vol., sec. !j2). hi the e.xphuiation of the diilerent parts of the detinition, he says, in reference to the ])erll or fear: "There is no need that the party assailed bo put in actual peril, if only a well founded apprehension of danger is created," for the sutl'ering is the same in one case as in the other, and the breach of the public peace is the same." He then gives the pointing an unloaded pistol as an instance, and says: "There must be, in such cases, some ])ower, .actual or a^iparent, of doing bodily harm, but apparent power is sntlicient." This makes an a])parent force sutHcient if it creates a well grounded ap[>rehension of peril in the party assailed, and is be- lieved to be contrary to the provisions of our code in two respects, to wit, the apparent force is made tantamount to the actual, and the well grounded apprehension of ])eril on the jiart of the assailed is made one of the elements of assault, whereas, by our code, if on the ])art of the assailant, the act coupled with the necessary intent to injure, as ju-oved or presumed, is sutHcient, it is imniiitL'rial whether or not fear of danger or well grounded ap])rehension of ]>eril is created on the assailed, or even whether he was aware of the attempt or not. If the ])istol had been loaded, and otherwise in condition to shoot when it was intentionally ])ointed at J^uke within a dis- tance that it could take effect if discharged, the manifestation of anger, and the threats of ]\[cKay would have constituted exti.i- neous and atiirniative evidence of an express intention to injure, necessary and sutHcient to make the assault complete. So, too, the ]>ointing the pistol alone, under like circumstances if loaded, without the manifestation of anger and the threats, would of itself carry with it the ])resuinption of the necessary intention to injure. Such act intentionally done by JMclvaj' would have put in imminent danger the life of Duke, who had given him no just cause to do it, and it is difHcult to imagine how it could be pos- sible to show McK.ay's intention in doing such an act to be inno- cent. ET5. ■ ', i"f 50 AMERICAN CRIMINAL RErOIlTS. I 1 But, on tlie other luiiid, tlio ])ist(>l beini^ uiilumled, tlie jMn'iit- incr of it was not an act, nor tlie cMiniiuencenient of an act, tliut could possibly have resulted in a battery by such a use of it, and, therefore, the act necessary as an in<,'re(lient in an nsLiault was totally wuntini,'. For the error in the charge of the court, the jiulgment is reversed and the cause remanded. liccemed and ntaanded. luLANU, J., did not sit in this case. State vs. Williams. (75 N. C, l.T-l.) Assault and Battkky: Ituks of (IkcljAlnc — Vohmhiry as.sociatiuits. On the triiil of an indictment for assault and battoiy, tho ovidfnco sliowcd tliat tlic iirost'ciitrix and the rewpondonts were uieniljers of a six'iet.v lalled (iuoil Samaritans. Tlie fiotiety luid a ceremony of expulsion from the society. The iivnsecntrix becomin;^ remiss in her duties, the resiiondents luix'eeded to perfonn the ceremony of expulsion, which consisteil in suspendiiij; the prosecutrix fi-om the wall by a card fastened around her waist, the prosecu- trix rt'sis-tiuf,': Jlrld, that resiwndents were yuilty of an assault and batteiy. Rules of iliscipline of voluntary associations must conform to the laws. Tndictmknt for an Assault and ]>attery, tried before Mooue, J., at spring term, 187G, of Martin Superior Court. The defendants and the prosecutrix were members of a benev- olent society in Hamilton, ^N". C, known as the " Good Samari- tans," which societv had certain rules and ceremonies known as tliQ ceremonies of initiation into and expulsiow from the society. The prosecutrix, having been remiss in so-ue of her obliga- tions, and having been called upon to exjilain, became viulent. The defendants, with others, proceeded to perform the ceremony of expulsion, which consisted in suspending her from the wall by means of a cord fastened around her waist. This ceremony hud been performed upon others theretofore, in the presence of the prosecutrix. She resisted to the extent of her ability. There was conflicting evidence as to whether they lifted her from the floor, or intended to treat her differently from others who had been expelled, and it was shown that as soon as she cried out that the cord hurt her, she was released, and fainted immediately. Her dress was torn from her. IIENDRIX V. STATE. m The (lofoiidiuits' counsel contended tliat if the defendants only intended to perform tlio ueuul ceroiilony of expulsion, and wero actuated l»y no other motive, and did not intend to liurt her, they were not guilty. Tliat in order to commit a crime, there mu\ '■ IIendrix vs. State. ' (.■)0 Ala., 14S.) Assault AND 13 ATTKUv: Hcaiptimi of utohn property — Oath iojuvy — Breach of the peace. On the trial of an indictmoi 'if assault and battoiy, the respondent offerotl to lirove that the assault ami l)attery Wiis committed in attempting to retake a horse which had been stoh'ii from him a short time before, from a pereou in whose possession ho found it. Held inadmissible, and that it would not ex- cuse, justify, or mitiprate the ott'ense. A man has no ri^rht to retake stolen property by a bresich of the pesice. The oath to tJie jury in this ciuse, viz. : " Well and tndy to try the issne joined and a tru^ verdict to render according to the evidence," was held sufficient under the Alabama statute. :• 1 .f \i i I ITS AMFFICAN CRIMINAL REPORTS. Brickell, J. The defendant was indicted for an assanlt and battery on one Dallas Parvin. Evickncc was ottered on the trial tending to prove the cuinnus ion of the assault and battery, aiid to show that it was caused by ihe refusal of the prosecutor to i^Ivo up to the defendant possession of a mare which he was ridiny;, and Aviiich was claimed by the defendant. The defendant ottered to prove that the mare was his property and had been stolen from him, a short time before, in i^under- dale county. The state objected to the admission of this evid- ence, and the court sustained the objection; and this rulini,' of the court, to which an exception was reserved by the defendant, is now assigned as error. If the true owner is deprived of the possession of his property by fraud, force, or any other illegality, he may lawfully reeluini and retake it, whenever he can do so without a breach of tho peace. But, as it is said by Blackstone, " The public ])eace is a superior consideration to any one man's private pr(»perty; and as, if individuals were once allowed to use priv:ite force as a remedy for private injuries, all social justice must cease, tho strong would give law to the weak, and every man would revert to a state of nature; for these reasons, it is provided that this natural right of recaption shall never be exerted wJiere such exertion must occasion strife and bodily contention, or endanger the peace of societ\;," 3 Wendell's Blackstone, 4. If the evidence ottered had been admitted, it could not have justitied, excused, or mitigated the otlense with which the defendant was charged. If his purpose was to reclaim his horse, he should have sought that pin-pose, not by violence, but through the ])eaceful remedies of the law. The law cannot countenance the substitution of physical violence in the ]»laco of these remedies. The ourt did not err in the exclusion of the evid»mce. 2. There was no error in the oath administered to thejurv. They were sworn "well and truly to try the issue joined, and a true verdict to render according to the evidence." This is a substantial compliance with the statute (Rev. Code, § 4092), and nothing more is rcfpiired. Judgment ajii'med. COMMONWEALTH v. COLLBERG. 59" COMJIONWKALTII VS. Coi-LBERO. (119 Miiss., im.) Assault axd Battkiiy: Firjhtlng hij mutual af/recmcut. Oil an indietmont for assault and Ijattory wlvro the evMenco was that the re- spinnU'iit and anothi.'r, by nmtual aj^reciniMit, wi'ut out to fij^iit cm' another in a ruth'ijd i)lace, and (Ud li^dit in the presence of from fifty to one hundred l)ersons, and that botli were bruised in the fifjht, which continueil until one of tiie i)arties di'chirt.'d himself satisfied, it was hchl that each was guilty of an assault and battery on the oflier. All titflitin!,' is unlawful, and it is of no conseiiuence that it is by mutual ayrce- nit'iit and without anger or malice on the piirt of those engaged iu it. Endicott, J. It appears Ijj the bill of exceptions that the ]iartie9 by mutual agreement wont out to light one another in a retired place, and did figlit in tlie presence of from fiftj' to one liuufh'ed persons. ])oth were bruised in tlie encounter, and the ii. (^.m. Dig. Plead., 3 m., 18. Put pri/.e lighting, lK>xing matches, and encounters of that kind, serve no useful purpose, tend to breaches of tlie peace, and are unlawful even when entered into by agreement and without auger or mutual ill will. Post. C L., 200; 2 Greenl. on Ev,, §S5; 1 Steph, X. P., 211, If one i>arty license another to beat him, such license is void, because it is against the law, Matthev) v. Ollerton, Comb., 218. In an action for assault, the defendant attempted to put in evid- ence that the plaintiti'and he had boxed by consent, but it was hehl no bar to the action, for boxing was uidawful, and the cou- Boiit of the parties to light could not excuse the injury. Boul- ter V. Clark, liull. X. P., 10. The same rule was laid down in 60 AMERICAN CRIMINAL REPORTS. Stoiitv. Wren, 1 Hawks (X. C), 420; uiul in Bdl v. Uanslcy, 3 Jones (X. C), 131. In Adams v. Waggoner, 33 Intl., 531, the authorities are reviewed, and it was held tliat it was no bar to an action for assault that the parties fought each other by mutual consent, but that such consent may be shown in mitigation of damages. See Logan v. Austin, 1 Stew. (Ala.), 470. It was said by Coleridge, J., in Reghm v. Lewis, 1 0. ifc K., -119, that " no one is justified in striking another except it be in self-defense, and it ought to be known, that whenever two persons go out to strike each other, and do so, each is guilty of an assault;" and that it was immaterial who strikes the first blow. See Hex v. FerTcins. 4 C. & P., 537. Two cases only have been called to our attention, where a dif- ferent rule has been declared. In Champer v. State, 1-1 Ohio St., 437, it was held that an indictment against A. for an assault and battery on B., was not sustained by evidence that A. as- saulted and beat B. in a fight at fisticuffs, by agreement between them. This is the substance of the report, and the facts are nut disclosed. !Xo reasons are given or cases cited in support of the proposition, and we cannot but regard it as opposed to the weight of authority. In State v. Bed; 1 Iliii (S, C), 303, the opinion contains statements of law in which we cannot concur. £xcej}tions overruled. DoEuiuNO vs. State. (49Ind., 5G.) Assault axd Battery: Arrest — Dumjcrous ucapoii — Question of fact — Policeman — Presumption. On an indictment agiunst tlie respondent, a policeman, for an assault and bat- tery on a brother of one wiiom he had lurested for huveny, witliout a war- rant, and who was apparently endeavorin;,' to .issist the prisoner to escape, It vas held, that what is a dangerous weapon is a (jnejition of fact aiid not of law, iind that the court has no right to instmct tlie jury as matter of law, that a policeman's mace is a dangerous weapon. A peace officer may huvfully arrest, without a wiurant, one vhom he has rea- sonable cause to suspect of a felony, and it is not ni'cessa: l tr his justifica- tion to establish the guilt of the suspected person. It appearing that respondent was a policeman, the court \vill presume that he possesses the ordmary powers of a peace officer. :; BuSKIRK, C. J. This was an indictment against the defendant DOEHRING V. STATE. 61 for an assaxilt and battery upon the body of one Thomas Green. There was a trial by jury, a verdict of guilty, assessing a fine of one cent. There was a motion for a new trial, which was over- ruled, a motion in arrest of judgment, which was also overruled, and the court rendered judgment on the verdict. The defendant was a policeman, of the city of Evansville, and as such, was informed that a brother of the prosecuting witness, Jim Green by name, had stolen a box of cigars. Ui)on that in- formation, he arrested said Green, lie was taking the prisoner to tlie city prison, and on his way there, passed the house of the jirosecuting witness. The prisoner expressed a desire to see his brother, the prosecuting witness, and Wivs told by the defendant that he could see him outside the house. All the persons present agree in their testimony, that the pris- oner attempted to either go into the house or escape, and that the api)ellant knocked him down twice with his nuice. In the scntile that ensued, the appell.ant and the prisoner got around the corner of the house of the prosecuting witness, about ten feet from the corner. At this point of time, the prosecuting witness heard the noise, and went out and placed his hand upon the shoulder of the appellant, and turned him around to the gas light. The theory of the state is, that the prosecuting witness heard the noise and went out to stop it, without knowing who the parties were, and that he gently laid his hand upon the ap- pellant and turned him around to the gas light to see who he was. On the other hand, it is contended tliat the prosecuting Avitness knew M-ho the ]>arties were, and went out to aid his brother in cseai)ing. All the witnesses agree, that he laid his hand on the ofticer before he was struck. The a])pellant struck him over liis his head with a mace. It is further argued, that it can nuiko no difference what the real purpose of the prosecuting witness was, if the appellant liad reason to believe, and did believe, that his ]iurpose was to aid in the escape of his brother. The prisoner did. in fact, make his escai)e. Counsel for appellant contend that the secoiul instruction was erruneous, because the court told the jury that the weapon used was a dangerous one, when the question should have been sub- mitted to the jury to determine, as a question of fact. The in- struction was in tliese words: "in coming to a conclusion in this case, it is important that you should consider the character i "i 11 62 AMERICAN CRIMINAL REPORTS. of the weapon used. Custom seems to sanction die use by police establishments of pistols, maces, and other dangerous and deadly \veapons, but they ought to use such weapons prudently. There can be no doubt, and as to this the jury and counsel for the state and defendant will fully agree with me, that the weapon used by the defendant in this case was a dangerous weapon. Did he use it recklessly or cruelly, or did he use it prudently i " It is the'duty of the court to charge the jury as to all matters of law applicable to the facts proved. It is the province of the jury to ascertain the facts. Tlie question of whether a particu- lar weapon was or was not dangerous, was a rpiestion of fact, and not of law, and hence should have been submitted to the jury for ascertainment. Barker v. The State, -tS Ind., 1()3. It is also claimed that the court erred in giving the following instruction : " If the defendant made the arrest of James Green for a felony, on information and not on view, he made it at his own peril; and in order for him to justify the assault upon Thomas Green, tlie prosecuting witness, when it becomes a mat- ter of inquiry, it devolves upon the defendant to show that the party under arrest was guilty of the crime for which he was arrested." In our opinion, the instruction was clearly erroneous. It never was necessary, under the law, for a ])eace olHcer to " show that the party under arrest was guilty of a crime for which he was arrested." A peace officer has a right to arrest without a warrant, when he is present and sees the t)ilense com- mitted. He has a richt to arrest without a warrant on informa- Mon, when he has reasonable or probable cause to believe that a felony has been committed; and herein there is a distinction as to the extent of his authority. In cases of misdemeanor, the officer must arrest on view or under a warrant; in cases of felony, lie may arrest without a warrant, upon information, where he has reasonable cause. And the reasonable or probable cause is an absolute protection to him, " when it becomes a matter of in- quiry,'* and in no case is he bound to establish the guilt of the party arrested. 1 Ililliard Torts; 49 Ind., 2d ed., 283, 234, 235, and notes. In Ilolley v. Mix, 3 "Wend., 350, the court held: " If an inno- cent person is arrested upon suspicion by a private individuid, such individual is excused if a felony was in fact committed DOEHRING V. STATE. C3 and tliere was reasonable ground to suspect the person arrcsto\\t if no felony was eoniinitted by any one, and n i)rivate indi- vidual arrest witliout a warrant, sncli arrest is illegal though an olHcer would be justified if he acted upon information from another which he had reason to rely upon." In Samuel v. Pidne, I Doug., 35i), Lord Mansfield held that if any jierson charge another with felony, and desire an officer to talce him in custody, such charge will justify the officer, though no felony was committed. In a ^IS. note of a case of Wdlhiins v. Dmvson, referred to by counsel in Iluhhii v. Bransromh, 3 Camp., 4:20, ^Ir. Justice Ihilier laid down tlie law, that "if a peace officer of his own head takes a person into custody on suspicion, he must prove tliat there was such a crime committed; but that if he receives a person into custody, on a charge preferred by another of fel- ony or breach of the peace, then he is to be considered as a mere conduit, and if no felony or breach of the peace was committed, the person who preferred the charge alojie is answerable." In llohJjy V. lii'dnscomh, sujrra, Lord Elleid)or(;ugh, in speak- ing of the rule laid down by Judge I3uller, said: "This rule appealed to be reasonable, and that very injurious consequences might follow to the public, if peace officers, who ouglit to re- ceive into custody a person charged with a felony, were person- ally answerable, should it turn out that in point of law no fel- ony had been committed." In 1 Chit. Crim. Law, 22, the law is stated thus: " Constables are l>ound, ujion a direct charge of felony, and reasonable grounds of sus[)icion laid before them, to ajiprehend the party accused, and if U})on a charge of burglary, or other felony, he be recpiired to apjirehend the oil'ender, or to make hue and cry, and neglect so to do, he may be indicted. Aiul a peace officer, upon a reasonable charge of felony, may justify an arrest without a warrant, although no felony has been committed, because, as ob- scrvi'd by Lonl Hale, the constable cannot judge whether the party be guilty or not, till he come to his trial, which cannot be till after his arrest; and, as observed by Lord IMansHeld in tSani- 1/rl V. P(i!)h', if a man charges another with a felony, and re- quires another to take him into custody, and carry him before a magistrate, it wouhl be most mischievous that the officer should be bound first to try, and, at his peril, exercise his judgment in '.I C4 AMERICAN CRIMINAL REPORTS. I "Vii''ii iJHi the truth of the charge; he that makes the charge should alone be answcrahle; the officer does his duty in conveying the ac- cused before a magistrate, who is authorized to examine and commit, or discliarge." The law applicable to arrests by a private person is stated with great precision and clearness by Tilghman, C. J., in Wale- l!/v.Ilart,G Binn., 310; where, after quoting a provision of the stute coiistitntion and commenting thereon, it is said : " But it is nowhere said, that there shall be no arrest without warrant. To have said so would have endangered the safety of society. The felon, who is seen to commit murder or robbery, must be ar- rested on the spot or sutfered to esca])e. So although not seen, yet if known to have committed a felony, and pursued with or without a warrant, he may be arrested by any person. And even when there is oidy probable cause of suspicion, a private person may without warrant at his peril make an arrest. I say at his peril, for nothing short of proving the felony will justify the arrest. These are principles of tlie common law, essential to the welfare of society, and not intended to be altered or im- paired by the constitution." We think the instruction under examination, when applied to arrests by a private person, expresses the law correctly, but when applied to arrests by peace officers, is clearly erroneous. It is, hoAvever, insisted by the Attorney General, that there is nothing in the record showing that the aj^pellant possessed the powers of an ordinary peace officer. The city of Evansville is governed by a special charter, which does not define the powers of the police force. The charter confers on the common coun- cil power "to establish, organize and maintain a city watch, and prescribe the duties thereof," and " to regulate the general police of the city." The ordinances of the city, defining the duties and prescribing the powers of the police force, were not read in evidence. It is earnestly claimed that we cannot, under these circumstances, in- dulge the presumption that the appellant possessed the powers of a conservator of the peace. We take notice of the existence of, and the powers conferred by, the city charter, and that Ev- ansville has a city government. It was proved that the appel- lant was acting as a policeman in such city. We think wo should indulge the presumption, that the police force of such a COMMONWEALTH r. HAWKINS. Co city possessed the ordinary powers of peace officers at coinmou law, but we do not think tlie presinni)tion sliould lie carried be- yond tlie jiowers possessed by conservators of the peace at com- mon law. A full and accurate statement of the powers and duties of the police force, under the general act of incorporation of cities, will be found in Boaz v. Taic, 43 Ind., GO. The judgment is reversed, witli costs; and the cause is re- manded for a new trial, in accordance with this opinion. Judgment reversed. COMMOXWEALTU VS. ILVWKINS. (11 Ihish, Ky., C03.) Ass.vri-T AND Battkuy: linach of llie peace — Former conviction — Statute construed. On an indictinont for an iiK-iiiuU imd Iiuttorj', tlio respondent pleaded that ho had bi'en trii'd, convicted and lined for u lireach of tlie poane, and tliat said conviction was for the identical fa'ts charged in the indictment. On appeal from an onler dismissinjf the indietnit'tit, the facts alle^^ed in the plea bein.? admitted to be trne, it was held, tiiiit the plea v/as good, and the former conviction a bar to the prosecntion of the indictment. A statute which punishr-s the inflictin;,' of wounds Viy shooting or bj' cutting, thrusting or stabbing with a knife, dirk, sword or other deadly weapon, does not embrace striking and wounding with a pair of Ijlacksmith tongs, and an indictment charging the latter w;us Jwld to charge a simple assault and battery only. CoFKK, J. The indictment in this case charged that tlie ap- pellee "did, in sudden heat and passion, without previous malice, and not in self-defense, Ktril'e and wound George Gregory with a pair of blacksmith tongs, which said tongs was then and there a deadly weapon." The appellee, in a plea of former conviction, alleged that he had been arrested and tried and convicted before a justice for a breach of the peace, committed by fighting with George Gregory, and had paid the fine assessed against him, and that said convic- tion was for the identical acts charged in the indictment. A demurrer to the plea having been overruled, the common- wealth confessed the facts stated therein, and the indictment wag Vol. I.-5 I ^ GG AMERICAN CRIMINAL REPORTS. (lismissed, and this appeal is prosecuted to obtain a reversal of that judgment. The indictment does not state facts constituting an oifensc ■\vitliin section 1, article 17, chapter 29 of the (reneral Statutes. Tliat section only applies to wounds inflicted by sliooting, or by cutting/, thrusting or stahblng with a knife, dirk, sword, or otlier deadly weapon, aiid does not embrace a looundimj such as is charged in this case. The indictment was therefore good only as an indictment for an assault and battery, and the cjuestion is, whether a conviction for a breach of the peace is a bar to a 8nb?^quent pron^ecution for an assault and battery constituting a part jf the transaction. This question came before this court in 1S;37, in T/ie Com- monwealth V. Miller, 5 Dana, 370, and it was then held, though not without some hesitation, that conviction for a breach of the peace, uidess obtained b}' the fraud or collusion of the party pleading, was a bar to an indictment for an assault and battery committed in the breach of the peace for which the defen'lant had been fined. Since that time tlie subject has been rejieatedly passed ujioii by courts of last resort, both in this country and England, and we think the decided weight of authority is in accord with the fornier decision of this court. The breach of the peace for which the appellee was tried is a distinct offense from that of assault and battery fur which he •was indicted, but was embraced in the latter because there can not be an assault and battery without a breach of the peace. The breach of the peace being included in the assault and battery, it is impossible that the appellee should be convicted of assault and battery without being also convicted of the l)reach of the peace; and thus, as he has already been found guilty of a breach of the peace, he would be in jeopardy a second time for the same offense — ?. e., for breach of the peace — and if con- victed and punished, he would he twice punished for one offense, which is repugnant to both the common law and our own written constitution. 1 Bish. Cr. Law, sec. 6S3. Judxjment affirmed. lies, enf( (MT( huIivkI inal PAULK V. STATE. ^f Paulk vs. State. 02 Ala., 427.) Bastakdy : 1 lUjmmnmenf for debt — Eihhnce. Bastard}' is a i)ona! prococdiuf,', nnd hns sonic of the cliariictoristica of a civil actiun iind somo of a criminal prosecution. Imprisonment of the putativo fiithcr for non-compliance with a jiidifment in a liustardy proceeding,' does not infrin<,'e the constitutional i)rovision against imiirisonnient for debt. In ahii.«tardy proceeflinj,', it si'cms that it is proper to show on hclnilf of the de- fendant tliiit tiie chikl resembles a third person, who has had opportunity for illicit intercourse with the mother. lu abiistarily proceedini,', evidence to show that the bastard re.sembleility of another guilty agent id always admissible, Tiie evidence, however ■weak, cannot be ex- cluded if it has a tendency to prove the issue, lirickell's Digest, 80!), § S2, Tliat the proof offered was admissible on an issue uf paternity, see Lord Mansfield in Domjlass Case, Wills on Cir- cumstantial Evidence, Joliii IF, A, Sait/oi'd, Attorney General, contra. BuiCKKLL, 0, J, A proceeding under the statute to compel a putative father to the support and education of a bastard child, during the helplessness of mere infancy, has some of the charac- teristics of a civil action and of a criminal prosecution. It is commenced by a complaint on oath, on which a warrant of arrest issues in the name of the state. A preliminary examination is had before a justice of the peace of the county in which the wo- man is pregnant or delivered of the child, and if sufficient evi- dence appears, the accused is recognized to appear at the next term of the circuit court. If he fails to enter into the recogni- zance with sufficient sureties, he is held in custody. Entering into the recognizance and failing to appear in obedience to it, a forfeiture is incurred, and a writ of arrest issues against him, as in criminal cases on indictment. On his appearance in the cir- cuit court, an issue is made up to which he and the state are the parties, to ascertain whether he is the real father of the child. If this issue is found against him, judgment is rendered against him for the costs, and he is required to give bond and security payable to the state, conditioned for the payment annually, for the period of ten yer .s, of such sums not exceeding fifty dollars a year, as the court may prescribe, for the support and education of the child. Failing to give the bond, the court renders a judg- ment against him of necessity, in the name of the state, for such 8um as at legal interest will yn'oducc the sum he is required to jiay yearly, and "he must also be sentenced to imprisonment for one year, unless in the mean time he execute the bond required, or pay the j udgment and costs." K. C, §§ -iSOG-liOf*, The pro- ceeding is certainly penal in its charactei, if not strictly crim- inal. On the trial in the circuit, the accuser and the accused are alike competent witnesses. It can be commenced only on ■^ PAULK r. STATE. 69 ft the cninjiliiiiit of tlio inotlicr. Xu indlotinent or prcsontint'iit by a ;,'riunl jury is neccssurv to support it. It abates on the death of tilt' chilli, and tlie marriai^'e of the motlier and putative father vacatts the iiroceodiiin^, thoUi;'h it lias i)roend)les some other ])er8on, who had opi)ortunities of illicit interct)urse with the moth- er. This was not the kind of evidence offered by the appellant. The proposition was to permit a witness to state the bastard child favored the children of another num. It was not ])roposed to show these chihlren favored their father. A child often re- scinljles only liis mother, and has none of the distinguishing features or physical peculiarities of the father. Nor was it of- fered to show H'hat were the particulars in which the bastard re- sembled or favored the children of the person named. It was the mere opinion of the witness that the children did bear a re- scnd)lance. There is nothing about which the opinions of indi- viduals differ so widely as personal likeness or resemblance. One discovers it, where another, instead of finding traces of it, finds distinctive marks of opposition. The evidence was too vague and uncertain, too inconclusive in. its nature, to have gone to the jury. It could not liavc exerted any legitimate influence on the verdict they were required to render. In the case of Conimouwealth v. Wehster (.5 Gush., 302), it was material for the defendant to show that the person he was charged to have slain was in life after a particular hour of a certain day. "Witnesses •' 41 •^ Ml I w 70 AMERICAN CRIMINAL REPORTS. wcro introduced who testified that thoy snw him in varioiH idiices in lUmtoii, after that ho\ir. Tu rebut tliiri evidence, it was propo.-ed to sliow there wa^ a jtertion about the streetrtof Mostuu, at tliat time, wlio bore a stronjjj resemblance to tlie deceased in form, gait, and manner, and had, l)y i»ersons acquainted witli tlie deceased, been approaclied and ein)lvfcn to, fortlie deceased. Tlie evidence was rejected as too remote and unsatisfactory, and was properly rejected. T/ie jiuhjnient in ojfiriiial. l\ n\ 1 KOPLE VS. ClIIMSTMAN. (60 111., 103.) Bastakdy: Degree of proof — Jioh/ment. Baatardy, though in fonu crinuiial, is in ett'oct a civil proceitlinff and a piepon- deraiiceof evidonce is Bufficiont to justify a conviction. A judgment for the pajiuciit of several instalments of money and the costs of prosecution and that the defendant " execute a proper ami sutHcient lioml for tlie pajT.ient of the jud{,'nient herein in due form of law " is held not open to the objection that it requuvs the defendant to yive a bond lor tho pajnueut of tlie costs, SiiELDox, J. This was a prosecution on a charge of bastardy, ■where a verdict and judgment were rendered against the defend- ant, from which he has appealed. It is urged that the verdict was against the evidence. After a careful examination of the testimony, we find that it sustains the verdict, and that tliere is no sufficient ground for disturbing the finding of the jury upon the evidence. We perceive no error in the instructions. It is objected to the first one, that it tells the jury they may convict on a prepon- derance of evidence. It has often been held by this court that the proceeding in question, though in form criminal, is, in effect, a civil proceeding, and that it is not essential to a conviction that the evidence of guilt should exclude every reasonable doubt, but that a preponderance of proof will be sufficient. Ma nil v. The People, 35 111., 407; Moloney v. The People, 38 id., 62; Allison V. The People, 45 id., 37. It is objected to the form of the judgment, that it requires the defendant to give a bond for the payment of tlie instalments for McCOY V. PEOPLE. Tl tlio support (»f tlio chikl. Tlio defeiidaiit is adjudged to pay tho tuverul iiirttaliut'iitrf of money and the costs of the prosecution, and to *' execute a jn'oper and sutlicient l»ond for the payment of the judgment lierein in due form of law." Tlie statute only re^piires the bond to be given for the pay- ment of the instalmentsof mcjney adjudged to be paid, and we do not think the judgment should l)e construed as re([niring any- thing more than the statute (htes, in this respect. AVe consider, then, that under the judgment, the defendant is only reipiired to give Ijond for the instalments, and not for the costs of suit. The judgment must be allirmed. Judgment affirmed. McCov vs. Pkoi'mc. (G.J m.. 4:59.) BASTAiinv: Siiflicieiici/ of eridenee. On a eliarrro of liiisturdy ^vlli(■ll iV sniiportcd only liy tho uncon-ohoratod testi- mony of till' iirosccutrix, she hcuij,' contnulictod liy tlircc uniniiicaclii'd wit- ni'SKt',-, us to litT liavini,' liatl sc.wial intin-courso with otliiu-H bcsidiM tin.' iloti'ndant ahoiit tho tinu! tho child was lic^'otton, and it appr'ariny that slin had pivvionsly t'harj,'i'(l the piit(arts. Another witness testilied that he himself had sexual intercourse with the comjdalnant as often as once, and sometimes twice, a week, during the months of October and November, 1S70, and that during her i)regnancy she informed him of her ct)ndition, and inquired of him what he was going to do about it. Two other witnesses testify to having surprised the complainant and I ' '^i^' ! 72 AMERICAN CRIMINAL REPORTS. fq Btill unotlior pcri^oii in tlie direct act of sexual intercourse, in Oc- tuLer or Xo\'enil)er, 1870. TIk! coinplaiiiant liad informed lier own father that the fatlier of tlu! cliikl lived at Sliannon, in another county, that of Carroll; in conse(]uence of whicli, her fatlier went tliere to see the person on the siihject. Tiie defendant never lived at that j)lace, as tlie coniplainaiit lierself testified. This was a circumstance aU'ectiny; the credibility of her testimony. The witnesses on the part of the defendant were in no way at- tcm])ted to bo imjieaclied, save that, as to two of them, it was re- lied upon as detractin wius oiio lie- twcitii a n(,'f,TO iiiid a whito woiiiuii, wliioli is prolubitwl uiid maJo void by stMtuti'i for i:v(-'ry biganious mamayii i.s void. BiciAMY: G'tKl of the ajfeunc — Tiro clrinoils of UlrijuTitil. It in the cntcriii;,' into tlie void iiiiimii>,'c wliiK; a prior valid marriage exists, thiit coiistitutcs (lii^ jrist of ihe ofl'fiisi'; iind it; cannot hciip niatlnrs any that tlu.'iv an; two clcmfMits of L!loi,ndity in the case, instead of on* . It is no valid reason for rclifvinK- ;i, person from tliGeonsi'(iiienee.s of violating ono statute, that the act of doiL^r so violated also luiother. Exf"Ei'Tioxs from llec(;rder's Court of Detroit. Submitted on brief Juno 13. Decided June 20. A. J. SinM, Attorney-General, for the People, argued that a bigamous msirriagc is always void; that no man can lawfully inarry when he is already married; tliat the gist of the oiieuse is PEOFLE V. BROWN. 73 tlio \x.j; Jloseoe Cr. Ev., ;Wl)-10; 2 J'.isiiop Cr. L., g 1025. Jaiais 11. Gudock, for rcspou; 10 Cox (). C, 411; Burt v. Jiiirf, 2 Swnley & Tristram, SS; Carmirhrrcl v. State, 12 Ohio St., 554; I/u>/i!{t V. People, 25 X. Y., iVJS; Jiefj. v. Mllloi\10 CI. & F., USD. (\)(»!.i;v, (\ ,[. The defendant .stH.d' a negro, and that the (jther ))arty to the marriage was a white woman, with whom, under the statute, it was impossible for him to contract mariiago at all. Coinp. Ij., -^ 4724. 1'he argument is, that if the ceremony (tf niarrlag(! has taken place :»etween [>arties who, if single, would be incMpalile of contracting luarriage, the marriage ceremony is mi'rely idle aim void, and the respoiulent cannot be said to have been married the second fiine at all. The logic of the iirgument is not very obvious. It, certninly caiuiot be based np( n any idea that there must be so'nething of Itinding and obligatory forci- in the second marriige; for every bigamous niatriage is Noid, and it '.s the entering into the void miu-riage while a valid marriage exists that the t-tatute punishes. Kor can we understand of what imi)ort:ince it can be that there are two elements of illegality in the case instead of one, or why the ]iarty .diould b(! relieved from the consecpienees of violating one statute beciuise the act of doing so was a violation of another also. The authoritie.s sanction no such doctrine. There arc loose Btatements in some of the cases, that tlie second marriage must 74 AMERICAN CRIMINAL REPORTS. have henx one tli.it, but for the existence of the first, would have been valid; but these evidently relate to the acts and intent of the parties, and not to the legal ability to unite in a valid relation. It was decided in Hex v. Benson, 5 C. *fc P., 412, that bigamy was committed in marrying a woman under an assumed name, thougli by law such a marriage Iwtween persons capable of con- tracting would be void. The case of Jiajhia v. Brown, 1 C. & K., 144, was similar to the present in its facts, and Lord Den- man in summing up said: " It is the appearing to contract a sec- o!id marriage, and the going through the ceremony, which con- stitutes the crime of bigamy, otherwise it never could exist in ordinary casa?, as a previous marriage always renders nul' and void a marriage that is celebrated afterwards by either of the parties during the life time of the other. "Whether, therefore, the marriage of the two prisoners was or was not in itself pro- liibited, and therefore null and void, does not signify, for the woman, having a husband then alive, has cojnmitted the crime of bigamy, by doing all that in her lav by entering into marriage with another man." These cases .i..e recognized in the case of Hayes v. Peojde, 25 X. Y., 390, which is relied upon by the respondent, but which affords no C(juntenaiice for his exceptions. The recorder's court must be advised that we find no error in the record, and that judgment should be pronounced on the ver- dict. The other justices concurred. COMMOXWEALTU VS. TaCKSOX. (11 Bush (Ky.), G79.) Bi(!AMy: Eridi'Hce of mco'nage. In a proFOCution fnr bi<,mmy, ovidoneo of tlic dcdiLratioiw of the r(wi)on(l(int tluit a ccrtam woman was his ^\^f(•, ami of the fact tliat lie liad lived with, n-co^'- mz(?d, introducod and represented her as his wife, is siiifideiit evidence of a marriatr(,> to submit to tliejiuy. In a prosecution for bi^faniy, the (irst niaiTia^'o may be pr.ivfnl liy the adiiiiwion of the respondent, in connection witli r.K'ogiiitJon and cohalntatJon, but tliese are only facts tenduig to show an actuiU majriaj?.', wliich mu.st bo foiuid ad a fact by the juiy. CoFEu, J. The appellee was indicted in tlic Lewis circuit glUMg with tl she wii The indictn of the testinu emnizii (leclara and liv sutHclc This the aui and pe cutioii: COMMONWEALTH v. JACKSON. m court for the crime of Ligiuny, and was tried by a jury, and un- der a peremptory instruction of the court, was found not guilty, and tlie attorney general prosecuted this a])peal under section 331 of the CriiiMMal Code, in order to obtain the opinion of this court 11' jHiint decided adversely to the commonwealth by the circuit court. The only evidence of a marriage of the appellee prior to that alleged to be ]>()lyg;Miioii-. consisted of evidence of his declara- tions that another woman was his wife, .and of the fact that he had lived witli, introduced and represented her as his wife. One witness testified that tlie appellee lame to Maysville as e;u']\' as Septcab. r. 1874, and engaged to sell sewing machines for him; that lu' 'Im n said he was a married man, and that 1 is wife was in Iligginsport, in tlie state of Ohio; that he (witi .os) subfte(piently let the ap])ellee have money with which ho said he M'auted to bring his wife from Iligginsport to ]\[aysville; that lie brought a lady U) Maysville, whom he introduced to witness as his wife, and boarded with her in a respectable family; that the lady gave birth to a child while in Maysville, ami that the oppellee told him it was liis child, and that his wife liad given birth to another child, which had died in Ohio, the funeral ex- penses of which the witness ])aid at appellee's re(piest. Another witness testified that two or three weeks before the alleged second marriage, tlie appellee applied to him for a horse and i)uggy to take his wife to the railroad depot, saying she was going to Louisville; and a third witness swore that appellee lived with the woman that came from Iligginsport, and claimed that she wus his wife. The circuit judge seems to have been of the oj)inion that an indictment for bigamy could not be maintained without proof of the fact of two marriages, cither by record evidence or by the testimony of one or more witnesses who were present at the sol- emnization of the marriage rites; or, in other words, that the declarations and conduct of the defendant admitting his marriage, and living with and recognizing the woman as his wife, were not BiilHcient to warrant the jury in finding a verdict against him. This is a subject about which there is irreconcilable conflict in the authorities. In llassachusetts, Xew York, and Connecticut, and perhaps in some other states, it has been held that in prose- cutions for bigamy, an actual marriage of the i)risouer must be w f$ AMERICAN CRIMINAL REPORTS. proven, and tliat neitlier cohabitation, re])utation, nor the con- fessions of the prisoner are admissible for tliat i)urposc, or if admissible, are not of themselves sufficient to warrant convic- tion, 77id Cohunomvealth v. Litthjoh ii and BarJjarick, J 5 ^lass., 1G3; B(modVsCai:>e,Q> Conn., -liO; 21ie Paqdo v. Jlniiiphrfy, 7 Johns., 314. On the other hand it has been held iu ISouth Carolina, Virginia, Georgia, Alabama, Ohio, Pennsvlvania, .Maine, and Illinois, that in prosecution.s for bigamy the coid'essions of the prisoner deliberately made are admissible as evidence to jirove marriage in fact, and in some of those states, that such confes- sions are of themselves sufficient toantliurize the jury to convict. JJrition'fi C'a^e, i McCord, 25(1; T/ie /State v. Jill ton, 3 liich- ardson, ■^?A\ Warner v. The Coimnoiiicealth, 2 Virginia Cases, 92; Covh r. The State, 11 Ga., 53; Caiaeron 2; St.de v. Hodykins, 11 Me., 155; Jackson V. 'The People, 2 IScam., 231. These were not all prosecutions for bigamy, but they were all cases in which the prosecution could only be made out by proof of a marriage in fact, and the same principle which would ad- mit evidence of the admissions, confessions, or conduct of the prisoner in such of them as were not for bigamy, would also au- thorize its admission in ])rosecutions for tliat crime. The American cases in which it has been held that evidence of such declarations, confessions, and conduct is not adniisbible, or, if admissible, is not of itself sufficient to warrant coiiviction, seem to rest on tlie authority of Morris v. JIill..r, JJurr, 2050, and IJlrt v. Barloio. Douglas, 171. These were actions for er'uii. con., in which tlie plaintill's at- tempted to establish their marriages by giving in evidiMice their own declarations, and proving their recognition of, and cohabi- tation with, the women alleged to be their wives. In the former case. Lord Mansiield said: "There must l)e evi- dence of a marriage in fact; acknowledgment, v. e., acknowledg- ment of the husband by the wife; cohabitation, and reputation are not sufficient in this action^ And he gives liis reasiHis for 60 holding. "It shall not depend," said he, "upon the mere reputation of a marriage which arises from the conduct or de- COMMONWEALTH v. JACKSON. 7T clarations of \\\c j^^aintiff himself y Again lie says: "Xo in- convenience can possibly arise from this determination. But inconvenience mi<;lit arise from a contrary decision which n\i<5ht render ])ersons liable to actions founded on evidence made by the persons themselves who should bring the actions." And twelve years later, in deciding the case of li'ii't v. Barloiv, he gave the same reasons for a like decision. And this additional reason seems to us to be entitled to con- siderable weight in support of tlie rule annotmcedby Lord Mans- iield in those cases, and \)y tliis court in the case of Klhhy v. liucJcei', 1 A. K. Marsli., 2!)0, as applicable to actions for o'lm. co)i. In such cases the ])laintilt' knows when, where, and by whom he was married, and at least some of tlie persons who were witnesses of tlie fact, and generally has it in his ])ower to olVer direct and positive ])roof. Jiut the case is often (piite other- wise with the government in ]>rosccutions for bigamy. The prosecuting officer must often be wholly ignorant of the time and ]>lace of the prisoner's iirst marriage, of the names and resi- dence of those ])resent at its consummation, and the avenues of information will generally be closed to him, esj)ecially when the Iirst marriage to(»k jilace, as it is generally the case with biga- mists, in some other state or country. Another difficulty in the way of the government under the rule that the Iirst marriage must be established by record evidence, or by the testimony of one or more witnesses present at the marriage, and which does not exist in actions for ci'ini,. con., is, that the government can- not read the de[)ositions of witnesses, and may be unable to pro- cure the attendance of those residing out of the state, while the ])laintiil' in ci'liii. cou. may procure and read depositions to prove tlie fact of his marriage. Hut Lord Manslield did ntjt say in M-rri^ v. M/I/i'i\ as some have suj)[»ose(l, tliat a pris(Mier's words and conduct could not be given in evidiMice agaiiu.t him to prove, in a ])rosecutiou for l>igamy, the fact of his having been previously married, or that such evidence would not of itself authorize a conviction, lie saiil, it is true, that '* in % pr>isecution for bigamy, a marriage in fact must be ]>rove(l;" and this we do not for a iiioiucnt doubt is now and has always been the law, but Lord AEanslield goes on to say: " We do not at }»resent deline what may or may not be evidence of a marriage in fact," and thus left open the very V. kT^rai mm 78 AMERICAN CRIMINAL REPORTS. question which he has been quoted as deciding, whicli, as ulrciuly Btatcd, Peeiiis to be the foundation upon which the American cases rest, wliicli hold that direct and positive proof is required. That Lord >[an.stiold dM not mean to decide that a marriage in fact could not l»e proved l)y evidence of the dechirations und conduct of tlie prisoiu^r is not only clear fron> the case in which lie has been suj)posen his confession of marriage was proper. In Cook V. j7ic Sttite, Justice Nesliit, in delivering the opinion of the supreu'.e court of (ruorgia, said: " Acknowli'dgmeiits, co- habitation, repute, etc., in ordinary civil cases, })rove marriage; but it is said in criminal cases, as in prosecutions for bigamy and adultery, a marriage in fact must be ])roved, .... and that the admissions of the defendant are not com[»etent. As a general rule, the confessions of a party, freely and solemnly made, are the liighest evidence. So rea.sonable and well settled is this rule that the exceptions to it, to be sustained, ought to rest ujxm the most unassailable ground." And again he says it can not !>e presumed that the ])risoner made confessions conlraiy to the truth, in order to shield himself from i)rosecution for adidterv, upon the assumption that he was, in fact, liviu"^ in a slate of adultery. " Such assumption a court has no right to make;" and we may add that, a re([uest conung from one charged with acqui it 1 um (it bigamy, that tlie court shall assume, in order to one crime, that he is guilty of another, and has likewise imposed COMMONWEALTH r. JAOKSOX. 79 a kept mistress upon society as his wife by falsely representinj^ and introducing lior us sucli, is not entitled to he received with any favor. Mr. Justice White, in delivering the opinion of the su]>rcine court of A'"irginia, in Wifnierv. The Couivhonviealth,9,w.i\'. " In all criminal prosecutions as well as civil actions, the confessions of a ]>arty, his admissions, aiid acLs amounting to confessions or admissions, are not only admissible, hut often the strongest evi- dence against him, and not unfrcquently supply the ])lace of ev- idence of a higher character v»'hich would otherwise ho called for;'' and this is e(|ually true in a ])rosecuti(>n for bigamy as in every other case. Why should it not be? Is there anything in that crime or in its punishment which ought to give t(t it a thetith' " Indictmr^it-i r>«r l>lgamy or Pnlygaiiiy," says: " \\\y cvinlenco seems to K' suthcient \vhich will couviiici' the jury tliut an actual nuirriagv was completi-d." (Chit. Crim. haw, 4T'J.) In I'tijlnn r. Ijiton (1 (^ar. iVj Kir., in.5> it was held that on in to any ImiKl- iii",', ♦ * or to iiiiy otlitT material witli intent to caune any Imililiiij^ to Ih' linmed, or shall, l>i/ (in;/ uthrr lucaiifi, attempt to cause any huildinj,' to lie bnnii'd," the words "liy any other means " must lie eonstrued to mean by any other ;neans of a like nature; and an atteiiiiit to cause a liuildiu}; to be burned by solicitiu},' a third perHon to set tire to it, and furnislung him with tilt,' materials, is uot within the statute. Cooi.iCY, J., (iisseiilini' EuKoi: to Aljx'na ('ircuit. Atkinson tt? IIoiHcij, for pliiintiil" in error, Byron 1). Jiall, Attorney (Joneral, for the j)CO])lc. Gkavks, C. J. This is ii writ of error to tlio circuit court for tlie county of Al])onii. Tlie phiintiil' in error Wiis convicted und sentenced to tlie state ])rison n])on tlie followino^ cluu'ijje, as em- iMulied in the second count of the information llled against hini l>y the prosecuting attorney: "And said jirosecuting attorney further gives said court to understand and he inforined that heretofore, to wit, on the iirst (lay of ^lay, in the year of our I-ord one thousand eiglit hundred and seventy-two, at the city of Ali)er,a, in said county, Patrick ^IcDade did wilfully, feloniously and maliciously sidicit and invite one J'atrick I'laney, nnlawfully and fehmiously to set fire to and hurn a certain building, to wit, the warehouse there situ- ate of Lorenzo M. . Mason, Charles E. ]\[ason and nenjainin F. iiUce, and diretation of statutes which de- fine crimes and regulate their ]>ui!ishnient, that general words are to be restrained to the nnitter with which the act is dealinur, and thiit if it be dealing with si)ecitic things or ])articnlar modes only, the general words must be limited to such things or nuxles, cxcej)t when it is apparent that the legislature intended by the general Avords to go further. Aiitfiiaiii Ti'(iiitlo iittoiupt to ciiiiso a Idiildiii;; to be Imnied, contemplated the employment of some ])liyt^i('!d means, and n(»t merely the H(dieitin<,' of a third j)errtoii to set the iire. Tlie counsel for the ])IaiMtitr in errt>r ar^^les that the previous memi)ers of the section deal with the physical act of Hrini,' the huiMin<,' itself or id' tiring some other material with the intent tliat the building, as a C(»nse(iuence, shall be burned, and that the succeeding; j^enenil expression counted on by the ])rose('iition, "or shall by any other means attempt to cause any biiildinij to be burnt," must bo understood as intending somo means of the same nature, S(»me physical act, either personally by the party himself, or through another directed to the end 6011.i,'llt. The attorney general argues that the first and s])ecitic ])(»rtion of the section covers every possible dire(!t aiul indirect mode of atteni]>t to cause a building to be burnt, excei)ting an attempt consummated by solicitation, and that therefore, in order to give the general clause in the latter ])art of the section any meaning and operation, it is indispensable to read it as explicitly ai)plying to the single fact of nndicious solicitation to burn. AVithout ])ausing t(t adduce illustration to impugn this posi- tion of the ])rosecution, tonchi'ig the sco])e of the specilic i)ro- visions, it is sntlicient to say tluit it cannot be maintainetl that tJie particular clauses in the first part of the section include every possible mixle, other than that consisting of ])ersoinvl solicitation in which a person may set about the burning of a building, Tli(! application of means directly to the building, and the ap- })lication of means directly to some other material, certainly do not exhaust the jjhysical agencies which aro possible in attem])t3 to cause buildings to be burnt. l>oth branches of the jiassagc ]ii('ceding the general clause relate, ami are confined, to cases where lins is actually set, and it needs no nice reasoning to show that a i>ersnn may fall short of his object, and employ physical means of the same nature and in the same direction, in attem})t- iiig to cause the buriung. The argument, then, against the posi- tion of the ])laintifl' in error, fails. Passing this topic, wo come to other views which deserve notice. The specific ])rovisions of the section expressly refer to the kind of buildings mcutionod in preceding sections, while the 1j^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 Li|28 |25 ■tt itt 122 1.1 11.25 ■ 20 1^ t" — Photographic Sciences Corporalion \ r; :! facts developed on the trial did not show that there was no evi- dence against his co-defendant Wlialey. It was nearly as strong against one of theiii as against the other, the threat made by the defendant on the previous evening being the only ditferenee. The only other ground in tlie motion for a new trial was that the verdict was contrary to the law and evidence. Arson is the wil- ful burning of a house. The house need not be consumed with iire to constitute the offense. It will be sufficient to show that a person set fire to the house, to the extent that some part of the house was on fire, nnless it is made clearly to appear that it was accidental, or was for some other object wholly ditterent from the intention to burn up or consume the house, f, for instance, it ap- pears from the evidence that aperson confined in prison set tire to the door to burn oft' the lock so as to make his escape, or that he burned a hole in the floor or in the wall for the same purpose, it would not be arson. So it has been held by the courts of other states. The Peoj)le v. Cotteral et al., 18 Johns., 115; The State V. Mitchell, 5 Ired., 350. If, however, a prisoner, or a number of prisoners in concert, should set fire to a jail without such definite purpose, but for the purpose of burning the jail sufliciently to produce the alarm of fire, and in the consequent confusion make an escape, being at the same time indift'erent as to whether the jail was consn-ned or not, that would be arson. In this case the evidence is circumstantial. There is no direct evidence that both or either of the two prisoners set fire to the calaboose, and the circumstauc-es tended very strongly to show that thoy were endeavoring to burn a hole in the floor, so as to make their escape thr-^ugh it. The fire must have been burning for some time, perhaps several hours before daylight. It is not reasonable to suppose, considering the trivial importance of their oft'ense, as indicated by their fines next day, after they were put in drunk, that they were desperate enough to intend to burn up the calaboose during the night, with themselves in it. AVhen they gave the alarm of fire, about daylight, they did not act like persons who had set fire to the house to produce general alarm and escape in the confusion. Had that been their design, we should have reasonably expected that they would have waited until the fire had taken greater effect, and then, upon giving alarm, have let others rush into the calaboose to extinguish the DELANEY v. STATE. 89 fire, witli the hope of there having been a chance to rush out. Instead of that, defendant called fur water the first thing, and it being handed to him through the grated window, he put out the fire liiniself a the inside, and another person, crawling under tlie calaboose, put it out on the under side of the lloor; so that tlie fire was entirely extinguished, and the prisoners were .-till in prison, when the marslud of the town came witli the key, un- locked the door, went in and examiiied the premises in reference to the burning. There is not the least intimation on the part of any of the witnesses that they made any effort to escape. The marshal does not even state that he summoned a guard when he took them before the mayor, where they were each fined two dollars and fifty cents and discharged. The whole trial of the case seems to have proceeded upon a view of the law, that if the defendant did wilfully set fire to tiic calaboose, he was guilty of arson, whatever might have been his intention in doing it. The jury was instructed that: " On the trial of a criminal action, when the facts have been proved which constitute the offense, it devolves on the accused to establish the facts or circumstances on which he relies to excuse or justify the prohibited act or omission." This charge in this shape, though its meaning may be well understood by a lawyer, may sometimes be well calcu- lated to mislead a jury. The facts or circumstances of excuse may have been already shown by the evidence for the prosecution, and then it would not devolve on the defendant to show them. So in this case, all the witnesses that knew anything about the transaction had been examined by the state. The defendant had no means of showing anything more, as he could nut put his co- uerendant on the stand as a witness. The jury might have been correctly told that it devolved on defendant to show such facts, unless they appeared in the evidence of the prosecution, and then their minds would have l)een directeu to the facts in proof, and not have been left to the possible conclusion that, as the defend- ant had introduced no evidence on his part, there was none fa- vorable to him before them already for their consideration. Another objection to this charge in reference to this case is, that it did not indicate to the jury what facts, would be an excuse for wilfully setting fire to the calaboose, or, indeed, that there could possibly be any such facts. It is true that it was not incumbent on the court to indicate any such facts, if the evi- ■ fi "i r 1 n ■ i 1 • i li i ■ .1 90 AMERICAN CRIMINAL REPORTS. dence did not point to them. For instance, it was not required that the court should have told the jury that if they believed the defendant, ui)uu recovering from his drunken spell, was about to freeze, and built a little tire with the staves and hoo])S of the bucket on the floor to avoid that calamity, and did not design to burn the building to any dangerous extent, under the reasonable expectation of being able to control the fire, that would excuse him from the criminality of arson because there was no evidence that it was then cold, and no other evidence, tending to establish such a conclusion. But there was evidence teiiding to show that if the defendant wilfully set Are to the floor at all, it was done to burn a hole through it to make his escape. And the charge should, therefore, have indicated that as a fact, which, if they believed it to be true from the evidence, would be an excuse suf- ficient to relieve him from the charge of arson. In reference to the facts in the evidence, all being circumstan- tial, the matters to be considered in coming to a conclusion were, that the floor of the calaboose was certainly on fire, and a small hole had been burned through it. The staves of the bucket were found partially burned, with the burnt ends towards and near the fire. Some coals were found under the floor, with some chips and shavings near them. There was no water left in the calaboose. The two prisoners had been put in while drunk on the evening previous, most probably only because they were drunk, and oue of them noisy. Under a view of all these circumstances, the questions present- ing themselves were (as no one saw the thing done who can give evidence, if anyone did see it), "Was the flre accidental, or was it set on purpose? If on purpose, was it done by deiendant, or his co-defendant, in the building, or by some one under it? If done by some one in the building, was it done by both or by one, and which one? If defendant was implicated in purposely doin*' it, was it done to consume the building with fire, or to make a hole to get out, or was it done with a reckless disregard as to whether the building was consumed with fire or not, and for the purpose of producing alarm and confusion to facilitate their escape? That the burning was done by the defendant, was a material fact to be found by the jury, and which was not to be taken for granted simply from the fact that he could have done it. If they had been satisfied of that fact, beyond a reasonable doubt, from iiii MEISTER V. PEOPLE. 91 a consideriition of all the evidence, then they inij^ht have pre- sumed tliat it was a wilful burning, if there was not enough evidence to satisfy theni that it was not wilful, but was only accidental, or done for the purpose only of making a hole in the floor throiigh which to escape. (As to accidental or negligent hnrning, see Iluss. on Crimes, 549; Whart. Cr. Law, sec. lG(i3.) In New York, the statute makes arson the " wilful burning," etc., as in this state. In North Carolina, the statute makes arson the "wilful and malicious burning," etc., as at common law. In both of those states it has been held, in well considered cases, that where it appeared reasonably certain, from all the facts and circumstances in evidence, that the purpose of the pris- oner in jail in setting fire to it was only and solely to burn the lock off of the door (in one c :e), or to burn a small hole (in the other case) to enable him to make his escape, it would not be the wilful burning of the house as contemplated by the law of arson. They both also held that if defendant set fire to the house, lie would l«e guilty of arson, unless it did clearly, appear that his intention in doing it was only to so burn it (as above stated) as to make his esca])e. Peojple v. Cotteral et al., 18 Johns., 115; T/ie State v. Mitchell, 5 Ired., 350. Concurring in this view of th.rs law, we are of the opinion that the court failed to charge the law of the case as it was required to be dojie by facts in evidence, for wliich error the judgment is reversed and cause remanded. Jieversed and rematxded. :v ,<.rf ■S'^:' -^ -1 Meistkr vs. People.* (31 Mich., 99.) Abson: ri'osecution hy private counsel'^Biinihig insured property — Evidence — Statute construed. Counsel employed iind paid by private paities will not be allowed to prosecute * Tlie statute on which tlie information in tliis case was based, reads as follows : " Everj- person who shall wilfully bum any building, or any goods, wares, or mer- chandise, or other chattels, which shall be at the time insured against loss or damage by fire, or shall ^vilfully cause or procure the same to be burned, with ui- tent to injure the insurer, whether such person be the owner of the property or not, shall be punished by imprisonment in tiie state prison not more than ten yeai-s." 2 Mich. Conip. Laws 1871, sec. 7500. I: -.r -i1 92 AMERICAN CRIMINAL REPORTS. !» in a criminal ease, a^'ainst the olyection of the respondent, especially where the private party Inw a pecuniary interest in the conviction of the luicused. Pivliniinary examinations on charf,'es of felony may bo conducted by counsel employcil and paid by private parties. In a prosixiution for burning insured property with intent to defraud insurers, an actual valid insurance nmst be proved. In a prosecution tor burning insured property, evidence that a month before the fire the di-fendant wanted a witness to bum the property is admissible. Guilty knowledge may be proved by circumstantial evidence, as well as any other tact. Under a statute punisliing those who birni insured property, and those who cause or i>rocure it to be burned, the defendant who is charged with burning tlie i)roperty cannot be convicted on proof that he procured the building to be bumed while he himself was absent. Burning and procuring to bo burned iU'e different offenses imder tlie statute. EuuoK to Saginmo Circuit. Gai/Iord t& llanchett, for plaintiiF in error. Wwner dc Draper, for the people. Cami'hki-l, J. The respondents below were all tried and con- victed of the offense of bnrning certain insured property, in the city of Saginaw, on the 22d day of June, 1S73, with intent to defraud certain insurance companies named in the information. There was no evidence to coimect Leizer Mcister or William JMeister with the burning, as principals present at the fact. The case proceeded throughout on the claim that Eosa IMeister, the wife, and Bertha Meister, the sister of William Meister, who oc- cupied the premises, set the property on fire in the absence of the others; and that William and his father Leizer, who lived at some distance off, procured the burning. At the opening of tlie trial, an objection was made that coun- sel had been retained by private prosecutors, and at their expense, to aid in conducting the prosecution. Defendants offered to show this fact, and asked to have one of the assisting counsel sworn, who declined to be sworn, and the court refused to require him; and the prosecuting attorney stating the gentlemen referred to were acting at his re(iuest, the court permitted them to assist, and overruled the objection. This question has never been pre- sented to the court before. Under the English practice, prose- cutions by private parties have been the rule rather than the exception, and there is no public prosecutor who has general charge of criminal business. The necessity of such an officer of the pi the com counsel ity. V Com. V. The whether the assei tions ap ence to It hasi neys to have ha( MEISTER V. PEOPLE. 93 lias been urged repeatedly by many of the ablest jurists; and tlio chief reason suggested has been the abuse of criminal proceed- ini-s for ])rivate ends, and the subordination of public justice to private control. In this country we have usually had in every Btate some officer, or class of officers, a]:»pointed for the express purpose of managing criminal business; but the extent and na- ture of their powers and duties have not been uniform. Some- times the officers have been permanent, and sometimes counsel have been appointed by the courts to act for the term; and the duties have often been left under vague regulations. Under our territorial statutes, and until the Kevised Statutes of 1S3S, the legislation was not very specific. But by the Revised Statutes of 1838, a regulation was introduced that was borrowed from the laws of Alassachusetts, and that has been preserved ever since. The prosecuting attorney of each county is required to prosecute all criminal cases in the courts of his county, and may be required also to appear for the same purpose before any magistrate, ex- cept in certain municipal courts. And he is expressly debarred from receiving any fee or reward from any private person for any services within his official business, and from being retained, except for the public, in any civil action depending on the same state of facts on which a criminal prosecution shall depend. C. L., §§ 529, 530, 534. The courts may appoint counsel to act in his place when he is absent or unable to perform his duties, or where the office is vacant; but no other power of appointment is given. Any recognition of other counsel, if valid, can only be by the request of the prosecuting attorney. He cannot abdicate his duties, and the court cannot divide or relieve them, or give to any other counsel any authortiy whatever, independent of his res])onsibil- ity. U. S. V. Morris, 1 Paine, 209; Ilite v. State, 9 Yerg., 198; Com. V. Knapp, 10 Pick., 477; Com. v. Williams, 2 Cush., 582. The question, therefore, seems to narrow itself to the inquiry, whether or not the persons allowed to act at the request or by the assent of the prosecuting attorney are subject to any restric- tions applicable to him, or whether they may act without refer- ence to their relations to private parties. It has been quite common in this state for prosecuting attor- neys to be aided by counsel, and probably in some cases they have had the help of those retained by private prosecutors. As t* 94 AMERICAN CRIMINAL RErORTS. no oltjectioiia Imvo been taken in these cases, and no attention has been called to the statute, it cannot bo said there has been any practical construction of the statute; and wo are oblii,'ed to consider tlie case as one requiring the law to bo enforced accord- ing to its fair meaning. The mere apiiointment of public prosecutors is not inconsist- ent with private prosecutions, either separately or nnder otHcial supervision. When the crown olHcers intervene at conunon law, they must, as we suppose, have control of the proceedings. The proposals in England to establi.-^h a new system, do not aim at entirely destroying the right of privitte prosecutions. See Edin- burgh Eevlew, Xo. 220, art. 2, on Criminal rrocedurc in Eng- land and Scotland. But so long as the present system exists, it appears to make it not only the right, but the duty of individ- uals, to complain of felonious crimes; and tlio disability against bringing private actions before prosecuting for felonies was im- posed to encourage such complaints, and to ensure private dili- gence in bringing offenders to justice. The ])remium8 oli'ered to informers stand on a similar footing. The policy of allowing qui tcwi actions has not been encouraged in this state, and criminal penalties have been devoted to public purposes. IS^either is the felonious character of an injury held to prevent an action before, any more than after criminal prose- cution. And one of the reasons given for this is the establish- ment of public prosecutors. Hyatt v. Ada.ns, 10 Mich., 180. It is impossible to account for the change in our statutes re- quiring the exclusive control of criminal procedure to be in the hands of public officers who are forbidden to receive pay, or in any way become enlisted in the interests of private parties, unless we assume the law to have been designed to secure im- partiality from all persons connected with criminal trials. The law never has prevented, and does not now prevent, ])rivate com- plaints before magistrates, who have a discretion in regard to calling in the prosecuting attorney. In the ordinary course of things, the case for the prosecution is brought out on that ex- amination, and justice requires that it should be, where a de- fendant does not waive examination. But when the charge is presented on which the respondent is to be tried at the circuit (where he must be tried for all statutory and common law fel- onies, except petit larceny), the law requires the public prosecutor .jjiil "fl MEISTER V. PEOPLE. 95 to assume and retain exclusive charge of tlio cause, until the ciiije is eiuled by ac(iuittal or conviction. The chief daiij^ers which the statute intends to guard against must bo tlioec attendant on tlie trial, inasmuch as the preliminary proceedings usiudly dc- tcnnine the nature aiid extent of the accusation, and those may be under the charge of private parties. And we must conclude that the legislature do not consider it pro])er to allow the course of the prosecuting otticer during the trial, to be exposed to the influence of the interesth. oi passions of private prosecutors, ilis position is one involving a duty of impartiality not altogether unlike that of the judge himself. Wo have had occasion hereto- fore to refer to this duty in these officers of justice. Their posi- tion is a tryitig one, but the duty nevertheless exists, and the law has done much to remove hindrances to its perfornuu\ce, and in no case more plaiidy than by the prohibition in question here, and that against allowing a circuit judge to act as counsel in his own court, before another judge, as was done in Bashford v. Peojyle, 24 Mich., 2-45. See, for illustrations, Wel/ar v. People, 30 ^lich., 10; Wagner v. People, 30 id., 384; Ilurd v. People, 25 id., 41G. The courts of Massachusetts have passed upon their statute several times. It was first brought to their attention in the case of Commonwealth v. Knapp, 10 Pick., 477, where it appeared that Mr. AVebster had aided, without objection, in tlic triul of the principal felon, whose accessories were on trial, and that reliance liad been had on his aid in the case at bar, and that he was acting without any pecuniary inducement. The court, under these circumstances, holding it had a right to allow the prosecuting officer to obtain help in a proper case, considered it admissible in that instance, but reserved their opinion as to any different circumstances, and laid stress upon the absence of any interest in Mr. "Webster beyond '' a disinter- ested regard for the public good." In Coinmomoealth v. Wil- liams, 2 Cush., 582, a similar course was sustained, but the court said it could only be allowed for stringent reasons, and referred again to the absence of any pecuniary compensation from any private individual. They said that such counsel is not under ordinary circumstances to be permitted, yet, when sanctioned by the court under the limitations suggested, it would not furnish sufficient ground for setting aside the verdict. In Commonwealth > 1 '1 I WS ' ;l ■ 96 AMERICAN CRIMINAL REPORTS. V. GMs, -t Gray, 140, a conviction was set aside because the court had, in tlie absence of the district attorney, appointed counsel to act in his place, wlio had been retained by private parties in civil Utilisation of the same matter. In Commomoeolth v. King, 8 Gray, />01, a gentleman \Vas allowed to act as counsel wh-o had acted in aid of the prosecution on the preliminary examination, and had also sat upon a commission of inquest concerning the fire, which was the occasion of the prosecution. The court held this peculiar familiarity M'ith the facts would make his help val- uable, and no suggestion was made by any one that ho was not disinterested, as no interested person, it must be supposed, would have been allowed to sit on the commission. The supreme court of Maine in State v. Bartlett, 55 Me., 200, allowed Gen, Shejdey to act with the prosecuting attorney, though under retainer from the insurance company at whose instance the case was prosecuted; and disposed of the Massachusetts cases by saying that in the only one where the conviction was set aside, the counsel complained of was in effect acting district attorney, and so within the words of the statute, which they held should only apply to that officer. The Massachusetts court, in both of the earlier cases, made the absence of compensation a prominent feature, and in all the cases, spoke of the employment of associates as exceptional, and not generally allowable. They do not bear out the Maine decis- ion in the reasoning. And that can only stand on its own rea- soning, upon the assumption that the control of the prosecuting attorney will destroy any influence or mischief which might re- sult from the private interests of his colleagues. But a theory which holds them as any thing but his deputies, or assistants in office, would render it difficult to reconcile their appearance with the law, which compels liim to conduct the pros- ecution. Such counsel, in the courts of the United States, are required to take the oath of office, and are made expressly public officers. IG L. IT. S., 105. The experience of trials shows that any other position is fallacious. AVhen counsel are introduced into a cause, and aid in the trial or argument, it is little short of absurd to suppose they can be prevented from having their own way. It would be unseemly and unprofitable for one counsel, during a trial, to interfere with his associate's questions or aro-u- ment; and competent auxilliaries would not be engaged on terms MEISTER V. PEOPLE. OT ■■1 which would subject them to open slights. "We must look at things as they exist, and every one knows that if a prosecuting attorney allows the counsel of private parties to intervene, it must usually bo for the reason that they will save him labor, and assume the burden of the prosecution. The mischief which the law aims to avoid is, prosecution by interested parties; and if such is the policy of the law, it ought to be carried out. It does not assume tliat there is any thing dishonorable in such employment, but it does assume that it is vcot proper to enirust the administration of criminal justice to any one who will be tempted to use it for private ends, and it assumes that a retainer from private parties tends to this. .[ The great scandals which have occurred from the abuse of crim- inal process to further purposes of gain or vindictiveness have often demanded notice; and no better remedy has been suggested than the policy of our statute. It does not prevent any one from hunting up proofs, or furnishing every facility to the officers of the law. But it will bo very inefficient, if it is possible to allow those who have a direct pecuniary intercLt in convicting a pris- oner, to take an active part in his trial. Until the legislature see fit to restore the common law rule, and leave cases to private prooccutions, it must be assumed that they regard it as unsafe and opposed to even handed justice. As the liability of the insurance companies on their policies would be avoided by proof that the proj)erty was burned by the assured, the case is one within the statute; and counsel in the interest of the insurers should not have been allowed to appear. It appeared, on the trial, that the policies of insurance were not completed for delivery at the home t>ffice, but were sent, with printed signatures, to George A. Baker, who signed and delivered them as agent. Upon attempting to prove his agency, it ai)pearcd that the authority was written, and was not pro- duced, and no proof was given of its contents. But the court allowed evidence of recognition to stand in lieu of proof of atfency, and for that purpose testimony was intrDduced that the blank policies were received from a Chicago iirm purporting to be general agents, but whose authority was not proved; that no losses had been paid by any of the companies at that place; that Baker and his partner made remittances, deducting their com- missions, and not showing what was received on particular poli- VoL. I.- 7 .:|:----^1 1- - .4: .11 im 08 AMERICAN CRIMINAL REPORTS. ■' ! cies; that reports were sent with lists and particulars of policies monthly, and these were sent to the secretary, who acknowl- edged them. No evidence was given of the contents of any re- ports, or of the incorporation or existence of the companies, or that the person corresponding with Baker was secretary. The court held the evidence sufficient to go to the jury. The statute punishes only the burning of property actually in- sured; and nothing but a valid insurance plainly established would suffice. And as the whole validity of these insurances depended on the authority of Baker, it was essential to show it. There was here no proof of authority from any one, and no proof of recognition by any one who was shown to be connected with and authorized to act for the alleged insurers. And there was no production of the writings relied on for recognition, nor proof of their genuineness. The case was entirely barren of all proof on the most essential j)art of the issue, and the court should have so ruled. The fire was on the 22d day of June. Proof was given, under exceptions, that about a month before the fire three conversa- tions were had between Leizer Meister and John Wagner and John Nugent (at one of which William Meister was present) in which Leizer desired to get them to burn the property between the 1st and 10th of June, between Saturday night and Monday morning, when the folks would be away; and consulted as to the best way of burning. This testimony was objected to, as tending to show another offense, under a different statute. We think this was admissible as tending to show a purpose to buin the property, existing not very long before the fire; and bearing on the probabilities. The men were convicted on cir- cumstantial testim ly, and it was not foreign to the issue to show a ]irovious conspiracy to burn the same property. If the jury believed this testimony, they must have found that the two Meisters desired to have the building destroyed, and this was certainly one of the elements of the crime, if a crime was com- mitted, and one of great importance. The bill of exceptions states that some weeks before the fire, Wagner and Nugent were arrested for burglary, and continued in jail until after the fire, and were convicted and sent to state's prison, whence they were brought to testify. It further appeared from their cross-examination that they were of infamous character. MEISTER V. PEOPLE. 99 In order to corroborate their testimony, tlie jailer was allowed to swear that, daring the week preceding the fire, Nugent told him that parties owning a clothing store on "Water street had spoken to him and Wagner about burning it, and the night it was to be burned would be either Saturday or Sunday evening, when they would be in liay City. He refused to give names. Also that Wagner told him a similar story, adding that the parties owned a house and barn on the Deerfield road, which tliev had also spoken to him about burning. This last fact was stricken out as immaterial. This testimony was all objected to, but received. Tliis was not the statement which these witnesses had made on the stand. According to that, the time of burning was to have been on or about the eighth of June, and subsequent to their arrest. If they had any conversation about a fire to take place on the 22d, it must have been after their arrest, or they must have given a false account under oath concerning the talk with the Meisters. If Xevins is believed, there could be no doubt of the complicity of AVagner and Nugent in the fire; but there can be as little doubt that they made no statement on the stand showing; anv knowledge in advance of such an event. There is no identity in the stories, and one cannot corroborate the other. The efiect of allowing this testimony would be to allow a conviction on the unsworn statements of infamous wit- nesses, not subject to any cross-examination upon it. If a Avit- ness can be corroborated at all by his repeated statements im- plicating third jiersons, the statements must be the same as far as they go. Upon the abstract proposition, no decision is called for. This testimony was not admissible. It is also claimed the court erred in refusing to charge that there was no evidence on which the two women could l)c con- victed. In the view we have taken of the proof of insurance, there was no sufficient evidence. Eut the point s]iecial]y aimed at was, that, assuming the insurance proved, there was no proof that the women kne\v of it, and had an intent to defraud the insurers. It is admitted that there was competent proof from which the jnr}' were at liberty to find them guilty of the burning. There was no evidence showing any knowledge of the insurance directly. But whother knowledge of a fact exists, is open to ;: V ; J. -i r: ■■•) :|. if-' -il 1 100 AMERICAN CRIMINAL REPORTS. proof by circumstances, like any other matter. If the fact is shown to exist, under circumstances likely to make it known, and persons act as they might be expected to act if they knew it, we are not prepared to hold that inferences of notice may not be drawn. If, for example, it were shown that property is insured where a family dwell, with store and dwelling united, and it is also shown that the property is intentionally burned, it must be as- sumed it was not burned without some purpose. A jury might properly infer that a wife would not destroy her own or her hus- band's property unless by his command, or with a design to in- jure him or some one else. If no enmity appeared against the husband, a person must be very ignorant who would not su])- pose it was to conceal some fraud, or to injure some one else. And if it was likely to injure third persons it woi;ld usually do so by endangering their neighboring property, or by subjecting them to some liability contingent on the fire, which is generally on an insurance. Juries have a right to judge from the sur- rounding circumstances, whether parties have acted in accord- ance with one or another of these motives, or whether they have been ignorant tools of others; and if their conduct is such as to clearly indicate one of these motives, so as to remove all rea- sonable doubts, the inference is rightly drawn that there was such knowledge as would call out that motive. AVe think the facts on this part of the case were properly left to the jury. But a serious q;iestion is presented, whether the men were properly convicted under the information. They are charged with the burning directly, and not as having procured tlie prop- erty to be burned; while the evidence was clear that if they were guilty at all, it was by way of procurement, and that what they did was before the fire, botli being absent when it happened. Our statutes having made all persons i)rincipals who would at common law have been accessories, the question arises whether this is such a case. The position of these defendants would have been at common law that of accessories before the fact, if this burning were a common law felony on the part of the women. Ko one could be a principal without actual presence, near enough to aid if needed, in furthering the crjme. The crime of such an acces- MEISTER V. PEOPLE. sory (liifcrs in time and may diifer in venue, from that of the principal; it is not the same act, but is in the nature of a pre- vious conspiracy to procure its commission. AVliere a felony is created by statute, it depends somewhat on the terms of the statute, whether it reaches accessories or not. It is necessary, in all cases, that the accessory have the same in- tent with the principal. 1 Hale, p. G17, CIS; Archb. Cr. PI., 7; lluss. Cr., 35, 3G; 1 Bish. C. L., g 006; and unless by virtue of some statutory provision, no one who is indicted as principal can be convicted as accessory, or vice versa. When a statute in gen- eral terms declares a certain act to be a felony, it will involve the consequent liability of accessories before or after the fact, where there is nothing inconsistent with that consequence. Bishop St. Cr., § 139, 142; 1 lluss. Cr. L., 3-4, and when a statute in terms punishes not only the principal oft'ender, but those who would by the tei-ms of the statute be described precisely as ac- cessories would be at common law, the persons so described will be treated as accessories. 1 Buss., 31-2. But a statute will nevertheless be construed by its language, and will not be extended beyond it, and it may be so drawn, and often is, as to be confined in its operation to certain persons, or persons having a certain intent or quality, and where it does this, it is enforced according to its terms. The section of the statute under which this prosecution is brought includes two distinct offenses. The first is, Avherc any person shall " wilfully burn insured property, with intent to de- fraud the insurer." The second is, wdiere any one " shall wil- fully cause or procure the same to be burned, with intent to in- jure the insurer." Comp. L., § 7500. If the second offense were only that of an accessory, the Avhole sectiun might be regarded as merely reaching the different actors in the same offense, and there could be no great difficulty in determining their position. But the second clause goes further, and punishes all persons who procure the fraudulent burning of insured property, whether the person doing the burning had or had not the design to defraud insurers, whatever else may have been his guilty purpose. This clause is equally applicable to all guilty procurement, whether through guilty principals or through agents who woiild not be principal offenders. It was evidently designed to prevent the danger of an acquittal of the guiltiest 4^u 102 jk.MERICAN CRIMINAL RE PORTS. parties, by reason of a failure to convict those who are merely their tools. Where the statute- has so definitely specified all the persons who could, under any circumstances, be guilty, and has divided them into two distinct classes, it seems to be no more than rea- sonable to deduce an intention to require each to be charged with his own statutory offense, in the language or substance of the statute, and not to leave it optional with the prosecutor to charge the defendants according to the facts, or against the facts by legal fiction. The danger of it appears on the present record, where it became a serious question whether the plaintiffs in error might not be entitled to an acquittal on account of the want of guilty knowledge of their co-defendants, who in turn may have been exposed to prejudice by being joined with them. If sej)!!- rately informed against according to the parts they are severally charsred with having taken in the transaction, the issues will bo more fairly presented, and the results more satisfactory. The judgment must be reversed, and the verdict set aside, and it must be certified to the court below that there should be a new trial, but that the plaintiffs in error cannot be convicted un- der the information, unless they were present at the burning. The other justices concurred. Note. — At common law, all criminal prosecutions for offenses against the poi-snns or property of individuals were set on foot and conducted by private persons. Suth an one was called the 2»'osecHtor, and employed and paid his own counsel. 1 >y the statute, 21 Hen. VIII., cap. 11, provision was made, hy virtue of which the prosecutor on a conviction for larceny obtained restitution of his goods. The statutes, 25 Geo. II., cap. 36, 18 Geo. 111., cap. 19, and 7 Geo. III., cap. 64, make provisions for payuig the expenses of the prosecutor in conductuig bona Jhh crim- inal prosecutions which seemed to t^e trial judges meritorious. The design was to encourage private pei-sons to prosecute to a conviction all criminal offenses of which they were the victims. And partly in order to secure this the more effectu- ally, it was held that any private injury which amounted to a felony was merged in the felony, at least until after a crinunal prosecution for the felony was had; and until such prosecution had been had, and terminated either in the conviction or acquittal of the offender, no action would lie for the private injury. 4 Black. Com., 362, 363; 1 Hill, on Torts, 60-6:3. But in the United States it is every- where the policy to entrust prosecutions for criminal offenses in the higher courts to sworn public prosecutors only, whose duty it is to see that justice is honestly and impartially administered. And it is generally the policy of tlie law to sm- round them with such restrictions and safeguards as will prevent their l)eing influ- enced by any interested or improper motives. The general scope of the duties of a public prosecutor, and of counsel associated with him, is ably discussed by Mr. defendai grounds ISAACS V. STATE. 103 Bishop ill 1 Bish. Crini. Proceed., see. 98S, et seq. It is certainly more conducivo to justice, tiiat the counsel in cluirge of a criniijial prosecution should be respon- sible only to the public, and that he should be ui no wise under the influence of private or uyured parties, who often seek, under the cover of tlie criminal law, to extort private reilxess or gi'atifj' personal malice. In accord with our general pol- icy, it is now the better opniion that there is no longer any merger of a private injury in a felony, nor is the private remedy sus-pended until a criminal prosecu- tion has been had. See 1 Hill, on Torts, ch. II, sec. 8; Boston v. Dana, 1 Gray, tiJj Hyatt V. Adams, 16 Mich., 180. Isaacs vs. State. (48 Miss., 2:34.) CoKsriiiACY: Practice, Ou an indictment for conspiring to defi-aud, it is not necessaiy to allege or prove that the fraud was successful. The act of conspiracy is an offense of itself, though the fraud be never consummated. Where tiiere is a joint verdict .and judgment against several, wliich is erroneous as to one, against whom there was no evidence, the judgment must Ije re- versed as to all. A nolle prosequi should have been entered as to the one against whom there was no evidence, or a venlict of acquittal rendered in liis favor. Tarbkll, J. N. Isaacs, M. AVolfe, A. Cohen and A. Lewis were jointly indicted in the Warren county circuit court, in 1S71, for a cons])iraey to cheat and defraud Herman & Moss, and I. Iilieinhart, merchants of Vicksburg, of their personal property, viz.: goods, wares and merchandise. After arraignment and plea, there was a motion to cpiash tlie indictment on the ground that it " does not allege that the property' mentioned was obtained by the prisoners or either of them;" that it "does not state tliat the property was obtained by prisoners, or any of them, by reason of false pretense, nor is the character of the false pretense stated;" and, that it " is vague and uncertain, and does not state with clearness the ownership of the property." The record docs not show a decision of this motion, and presumptively it was waived. As to this indictment, we refer to AVharton's Am. Cr. Law, title, Conspirac}-; Wharton's Forms and Precedents, title. Conspiracy, and to IJishop ou Cr. Law, vol. 2, Conspiracy, with the remark that it is for the conspiracy, and not for obtaining property. The trial in 1872 resulted in a verdict of guilty against all the defendants. There was a motion for a new trial on the following grounds: Error in giving the instruction for the state, and in '£{' 104 AMERICAN CRIMINAL REPORTS. 1/ ::1 refusing the second instruction for the defendants; the jury dis- regarded the instructions; tlie verdict is unsupported by tlie ev- idence, and misconduct of tlie jury during the trial, which mo- tion was overruled. The judgment and sentence of the court was as follows: "It is, therefore, considered hy the court, that for the crime of conspiracy of which they stand convicted, they be sentenced to imprisonment in the county jail of Warren coun- ty for the term of one day, and each of thorn he fined f^50, and they pay the costs of this suit." Thereupon, the accused prose- cuted a writ of error to this court, and assigned thereon the fol- lowing causes of error: In giving the instruction for the state; in refusing the second instruction for the accused; in refusing to quash tlie indictment; in overruling the motion for a new trial; the insufficiency of the indictment, and verdict unsupported by evidence. The sinjjle instruction for the state is drawn with rare accuracv, statiniT the rule of law and the facts necessary to constitute the crime of conspiracy,, and clearly and impartially submits to the jury the question for their consideration. The instruction for the accused i-efused by the court was not applicable to the charge of conspiracy, but to a prosecution for obtaining goods by false pretenses. The act of conspiracy is an otfense of itself, though the fraud be never consummated. Am. Cr. Law and Bishop Cr. Law, supra. Upon all other points the instructions for the accused were full, and considerate of their rights. Upon an examination of the evidence sent up with the record, we are clearly of opinion that the verdict against Isaacs is whol- ly unwarranted. Either a nolle prosequi should have been en- tered as to liiin, or he should have been acquitted by the jury. For this manifest error, the judgment will be reversed. The de- fendants having been jointly indicted and convicted, the judg- ment must of necessity be reversed as to all. As to the others, however, the jury would seem to have been autliorized to infer a conspiracy from the evidence as to them, though it is not our purpose to express any opinion of their guilt or innocence, or of the weight of the testimony. If truthfully represented, the con- duct of Wolfe, Cohen and Lewis was disgraceful. For the ver- dict against Isaacs, however, the judgment is reversed, and the cause remanded, with a venire de novo. LANDRINGHAM v. STATE. 105 Landringiiam v8. State. (49 Ind., 180.) Conspiracy: Constitutional law — Indictment. It is not necessary to constitute the offense of conspiracy that any act should be done in pui-suance of the conspiracy. A jiroviso in a criminal statute against conspiracy which reads as follows: " I'rovided, that in any indictment under tliis section it shall not bo nec- essary to charge tlie particular felony which it was the puqioso ♦ * to commit," is unconstitutional and void. An indictment for conspiracy to commit robbery which charges an intent to "forcibly and feloniously take from the peraon of A. B.," but does not charge that it was to be done " by violence," or " by putting m fear," is ia- Eutticient. BusKiuK, C. J. The appellant was indicted and convicted under the following statute: " Sec. 1. Be it enacted by the general assembly of the state of Indiana, that any person or persons who shall unite or com- bine with any other person or persons for the purpose of com- mitting a felony, or any person or persons who shall knowingly unite with any other \ erson or persons, or body, or association or combination of persons, whose object is the commission of a felony or felonies, shall be guilty of a felony and upon convic- tion shall be lined in any sum not exceeding five thousand dol- lars, and be imprisoned in tlie state prison not less than two nor more than twenty-one years; provided, that in any indictment under this section, it shall not be necessary to charge the par- ticular felony which it was the purpose of such person or persons or the object of each [such] person or ])ersons, or body, associa- tion or combination of persons to commit." The indictment was as follows: " The grand jurors for the county of Marion, and state of Indi- ana, upon their oaths present that James Landringham, on the 12th day of November, A. D. 1S7-A, at and in the county of Mar- ion, and state aforesaid, did unlawfully and feloniously unite, combine and conspire with Thomas King, for the purpose of making an assault upon one Thomas J. Barlow, and for the pur- pose and with the intent then and there of feloniously and forci- bly taking from the person of the said Barlow ten United States treasury notes, of the denouaination of two dollars each, and of 1 ! 1 F i !.'■!'■ •i ' W 1 ig 1:1 100 AMERICAN CRIMINAL REPORTS. tlio value of two doUiirB each, ten national bank notes of the de- noniinatiou of ten dollars each and of the value of ten dollars each, twenty United States treasury notes of the denomination of five dollars each and of the value of five dollars each, and twenty national bank notes of the denomination of five dollars each and of the value of five dollars each, all of said notes being the jiersonal goods of said Barlow, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Indiana." Motions were made and overruled to quash the indictment and in arrest of judgment, and these rulings are assigned for error, and present for our decision the cj[nestion, whether the indict- ment is sufficient. If the above quoted act is valid in all of its parts, then it was not necessary to charge, or even to name, the felony intended to be committed; for it is expressly declared in the proviso that it shall not be necessary to charge the particu- lar felony which it was the jjurpose of such person or persons, or the object of such person or persons, or body, association or combination of persons to commit. We are very clearly of the opinion that the proviso is in conflict with the constitution, and against natural right, and hence is absolutely void. If the in- dictment need not charge the particular felony intended to be committed, the accused would have no means of knowing, before the trial commenced, what offense he was charged with, and con- sequently would have no opportunity of pre])aring for his de- fense. The question was so fully considered in this court in the case McLaiujldbi v. The State, 45 Ind., 338, that wo do not deem it necessary to reargue or restate it. The proviso being void, it was necessary for the indictment to charge the particular felony which the appellant had conspired, united or combined to comnnt; and this leads us to inquire whether the indictment does properly charge any particular fel- ony. It obviously would not be sufficient to name the i)articular felony intended, but the indictment should contain averments sufficient to show what particular felony the accused had united and combined to commit. The averments should be as specific and full as in an indictment charging the commission of raich felony. It was evidently the purpose of the draughtsman to charge the appellant with uniting and combining with Thomas King to commit a robbery, but we think such ofi'ense is not suf- IS. i PEOPLE V. WILSON. 107 ficlcntly cliarged. The statute thus defines the crime of rvhbcry : *' Every i)ers(>ii wlio shall, forcibly and feloniously, take t'r. lU the person of another any article of value by violence, or |>iuting in fear, shall be deemed guilty of robbery." 2 (1. & JI., 442, sec. IS. Tiie indictment should have used the words, " by violence" or "puttin^i' in fear." BicknellCrim. Trac, 31l»; 2 Arch. Crim. Tr. tic ri., 417, 41.S; SeijiiwHrv. The ISUite, 15 Ind., 2SS. It is contended by counsel for appellee that the use of the word "forcibly" dispenses with the use of the words "by vio- lence" or " i)utting in fear." The statute and approved forms use both words, "forcibly," and "by violence." The court instructed the jury that it was unnecessary for tho indictment to charge any particular felony which the appellant had united and combined to commit. The jury must have un- derstood from such charge that it was not necessary for the state to prove any particular felony. The appellant asked the court to charge the jury that there could be no conviction unless it was proved that he had com- mitted some overt act to csirry out the purpose contemjdated by the conspiracy. It is well settled, that it is not necessary, to constitute the offense of conspiracy, that any act shoiild be done in pursuance of the conspiracy. See 4 Chitty's Blackstone, top p. OS, side p. 130, and note 31, and authorities there cited. Tiie judgment is reversed, with costs; and the cause is remanded for further proceedings in accordance with this opinion; and tho clerk will give immediately the necessary notice for tho return of the prisoner. People vs. "Wilson. (64 lU., 195.) Contempt: Newnpaper aiilclc — LiabilHj/ of proprietor of newspaper — Lia- bility of managing editor — Vuhlication as to pending case. A newRpapor article concerning a criminal case pending before the supreme court which prophesies that the prisoner will get a new trial and eventually escape justice, because $1,400 is enough now-a-days to piurchase immunity from the consequences of any crime, and that " the courts are now completely in the control of corrupt and mercenary shystei-s — the jackals of the legal pro- fession — who feast and fatten on human blood, spilled by the hands of other men," is a contempt of court of flagrant character, and calculated to r: •J -1 ■k'' J'' V 108 AMERICAN CRIMINAL REPORTS.- ! cmbarrans and obstruct the odministnition of justice. Scott and SiiELDO.y, JJ., (liHsenting. UntU'r a Htutnti" that " the said court shall have power to punish conteniiitx of- fered by any person to it while sitting," tho court has power to punish for a construclivo contempt connnitted by a newspaper article refiiTinfjf to i) case then pendin^jf before tlie court. All acts caleuiated to inipiMle, embar- rass or obstruct the coui't in the administration of justice should be consid- ered UK done in tho presence of the court. It svciiuo that the court would have no right to pimish any criticism on its de- cisions or official conduct in reffard to cases that are ended, so long as its iw ^ tion is coiTcctly stated and its official intejrrity is not impeadied. The proiirietor of a newspaper may bo pimished for contempt for an ai-fido published in the newspaper owned by him, although sucli article was pub- lished without his knowledge and consent, when, to a rule to show caiiso why he should not bo punished, ho makes no defense as to matters of fact, except that he did not know or sanction it before publication. The managing editor of a newspaper may bo punished for C(v ■tempt for per- mitting the publication of a newspaper article, which, although not vrrii- ten by him, was seen by him before publication, and wluch he had power to exclude from the paper. Oi. a rule to show cause why an attachment should not issue against the re- t.^^'ondents for a contempt, if the resi)ondents rely on an excuse only, they should appear in person. If they appear by attorney, and defend on legal grounds, an excuse can only be regarded in mitigation of punishment, and not as gi-ouud for discharging the rule. This -was a proceeding in the name of T/ie Peoj)Ie v. Ckirles L. Wilson and Andrew Shuman, tlie publislier and editor of a newspaper published in the city of Chicago, called the " Chicago Evening Journal," for an alleged contempt of this court, in tho publishing in said newspaper, on the 10th day of Octoher, 1S72, during the sitting of said court at tlie September term, 1S72, thereof, of an article which ajipeared as an editorial in said newspaper, in reference to the case of CJirhtopher Itafferty v. The People, which was then pending, on writ of error, in this court. The article referred to is set forth in the following in- formation, presented to the court by the Attorney General, on the 23d of October, 1S72: " State of Illinois — Supreme Court — ss. ''Northern Grand Division — Septemher Tenn, A.D. 1872. " The People of tue State of Illinois m. Cuarles L. "Wilson AND Andrew Siicman. "Information— And now come the rJd People, by "VVash- ington Bushnell, Attorney General, aiid represent ^^ the court PEOPLE V. WILSON. 100 that on tlio ICtli day of October, A. D. 1872, there was, and still is, pentliiifi; in this court, a certain cause for the adjudication and (letonniimtion of this court, wherein one Chridtophor Kafferty is phiintiil' in error, and the People of the State of Illinois are defendants in error, and that, on the same day there was pub- lished in the city of Chicago, in said state, a certain daily news- paper, called the ' Chicago Evening Journal,' of which said pa- per on said day the said Charles L. Wilson was proprietor, and the said Andrew Shiiman was editor, and that said Charles L. Wlhon and Atulreio Shianan^ on the said day, caused to be published in said jmptr, of and concerning said cause so pend- ing in this court, and of and concerning this court and its sup- posed action with reference to said cause, a certain article, in the words following, that is to say: " ' TiiK Case of Rakfeutv. At the time a writ of supersedeas was granted in the case of the murderer Chris. IJall'erty, the public was blandly assured that the matter would be examined into by the supreme court and decided at once; that possibly the hanging of this notorious human butcher would not be delayed for a single day. Time 6])eed8 away, liowever, and we hear of nothing definite being done. Eafterty's counsel seems to be studying the policy of delay, and evidently with success. The rift-raff, who contributed fourteen hundred dollars to demonstrate that hanging is played out, may now congratulate themselves on the success of their little game. Their money is operating splend- idly. "We have no hesitancy in prophesying clear through to the end just what will be done with liatferty. He will be granted a new trial. He will be tried somewhere, within a year or two. He will be sentenced to imprisonment for life. Eventually he will be pardoned out, and this in spite of all our public meetings, resolutions, committees, virtuous indignation and what not. And why? Because the sum of fourteen hundred dollars is enough now-a-days to enable a man to purchase immunity from the consequence of any crime. H next winter's session of the legislature does not hermetically seal up every chink and loop- hole through which murderers now escape, it will deserve the bitter censure of every honest man in Illinois. We must sim- plify our modes of procedure in murder trials. The criminal should be tried at once, and when found guilty, should be hanged at once and the (quicker hanged the better. The courts are now ' 'J 110 AMERICAN CRIMINAL REPORTS. completely in the control of corrupt and mercenary shysters — the jackals of the legal profession — who feast and fatten on hu- man Wood spilled by the hands of other men. All this must bo remedied. Thee can be found a remedy, and it must be found.' " AVherefore the said attorney general, for and on behalf of tlie said peoi)le, moves this court for rule upon the defendants Cliarles L. "Wilson and Andrew Shu man, to be and appear be- fore this court, on a day to be named, and show cause, if any, they, or either of them have, why an attachment should not issue against them for contempt of this court in respect to the publi- cation of said article. AVashington Busiinkll, J^^'y Goi'iy Afterwards, on the 25th day of the same month of October, a ride was entered of record, requiring the said Charles L. Wil- son and Andrew Siiuman on or before the coming in of the court on the first day of November next following, to show cause, if any they shoidd have, why an attachment should not issue against them, for a contempt of this court, in the publish- ing of the article mentioned. Accordingly, in obedience to such rule, on the said first day of November, there was tiled in behalf of the respondent Wilson the following answer: " And now comes Charles L. Wilson, one of the above re- spondents, in obedience to the rule heretofore, to wit: on the 25th day of October A. D. 1872, entered in said court, requiring this respondent and Andrew Shuman to show cause why an at- tachment should not issue against them, for a contempt of said court, on account of tlie matters and things in a certain inform- ation filed in said court, in said rule mentioned, and in answer to the said rule, this respondent says, that he is the sole propri- etor of the said newspaper, mentioned in the said information, called the Chicago Journal, and that the article set forth in said information was pul)lished therein on the 10th day of October, 1872, but this respondent says that neither before, nor at any time of the publication, had he any knowledge or information relative to the same. This respondent did not know before said paper in which the article appeared was published, that said ar- ticle, or any article upon the subject, was written, or to be writ- ten, or that any article upon the subject was to be published, and that he neither advised, or counseled, nor was he advised or counseled witli by any person whatever, relative to the publica- tion of said article, or any article whatever upon the subject. PEOPLE V. WILSON. Ill " This respondent further says, that the first knowledge or in- formation ho had relative to said article, on its publication, was when he read the said article in said paper, after its publication and distribution. " Tliis respondent further says, that he Is informed and believes that no disrespect was intended by said article to said court, or to any judge thereof, and that a fair construction thei-eof will not warrant an inference to that effect. "This respondent is advised and Ijelieves, that the publication of said Jtrticlo was not designed, and had no tendency to impede, embarrass or obstruct the administration of justice in said court. And this respondent does, and will insist that he had and still has the right, through his said paper, by himself or his agents, to examine the proceedings of any and every department of the government of this state, and that he is not responsible for the truth of such publication, nor for the motives with which they were or are made by the summary process of an attachment for contempt, save when such publications imjjede, embarrass or ob- struct the administration of justice. "This respondent further s.ays, that such has been the estab- lished hiw of this state for over thirty years past, and that said court has no judicial power to change the same. " This respondent takes this occasion to renew his repeated ex- pressions of confidence in the ability and integrit}' of said court, and of the individual members of the same, and as evidence of the same gives the following article, which was published in said paper, issued on the '^Otli of September, 1872; that is to say: 'The supreme court of Illinois, although, perhaps, too ready to grant motions for supersedeas, has no sympathy with criminals. The judges are all men infinitely above such suspicions. It is their business to examine every case appealed to them, without any bias one way or the other, taking note solely of the facts pre- sented in each case. The question for the higher court to decide is this: iJid the accused, from first to last, have a fair trial? The presumption is that he did, and the rule is to grant a supersedeas only in case it is clear that he did not have a fair trial. "While we cordially commend the zeal of the prosecuting attorney and of our courts in their eftbrts to check the appalling frequency of murders in this city and county, we suggest to them more cau- tion in observing all the forms and technicalities of the law in ) i i 1 H . '>* ' HM 113 AMERICAN CRIMINAL REPORTS. the conduct of future murder trials. The supreme court will certainly continue to insist upon it, and every supersedeas granted acts as a premium upon murder.' " This respondent further says, that at the time of the publi- cation of said article first mentioned, there was an intense excite- ment in the community, and particularly in the city of Chicago, on account of frequent murders, and the escape of the perpetra- tors thereof; and this respondent is informed and believes that the design of said article was to impress upon the community the importance of electing members of the next general assem- bly of this state, who would remedy the defects in the criminal law of this state, by which criminals are able to escape punish- ment, and not to reflect upon the ability or integrity of said court, or any member thereof, nor to imi)ede, embarrass or ob- struct the administration of justice. AVherefore, this respondent prays that the said rule, as against him, may bo discharged. "Chakles L. "Wilson." " State of Illinois — Cook County — ss. " Charles L. Wilson, being duly sworn, says he is one of the respondents named in the foregoing answer, and that the matters stated in said answer are true. Chaulks L. AVilson." " Subscribed and sworn to before me this 29th day of October, 1872. IIexry W. Farrau, " Notary PuMIc:' And on the same first day of !N"ovember, the following answer was filed in behalf of the respondent Shuman: "And now comes Andrew Shuman, one of the respondents, in obedience to the rule heretofore, to wit, on the 25th day of October, 1872, entered in said court, requiring the respond- ent and Charles L. "Wilson to show cause why an attachment should not issue against tlieni, for a contempt of said court, on account of the matt^^rs and things alleged in a certain informa- tion filed in said court, in said rule mentioned, and in answer to said rule this respondent says, that he is managing editor of said newspaper, mentioned in the said information, called the Chicago Journal, and that the article set forth in said information was published therein on the IGth day of October, 1S72. " But this respondent says that said article was not written by him, nor by his ■ rocurement or advice, but by an assistant editor of said newspaper, which said article was submitted to this re- L PEOPLE f. WILSON. iia spondent for his examination before the same was puLlished, as are all articles prepared for publication in said jiaper. Upon the submission of said article to this respondent, he read the same, and allowed it to be published without dissent on his part, and without supposing that there was anything in it disrespectful to, or in contempt of, said court, or of any of its judges or offi- cers. The wording and expressions of said article were, as this respondent then believed and still believes, designed and intended to impress upon the public, and upon the next legislature of this state, the necessity of such a change in the laws regulating and governing the trial of persons accused or convicted of crime, as to ensure a more speedy and certain punishment, and that this was the only aim, purpose or intention of said article. " Tills respondent further says, tliat a fair construction of said article will not warrant an inference that any disrespect was in- tended by the same to the said court, or any judge thereof. This respondent is advised and believes, that the publication of said article had no tendency to impede, embarrass, or obstruct the administration of justice in said court; that it was not so designed, and had not that tendency. And this respondent does, and will insist, that he had and still has the right, as managing editor of said paper, to examine the proceedings of any and every depart- ment of the government of this state, and that he is not respon- sible for the truth of said publication, nor for the motives with which they were or are made, by the summary process of an attachment for contem]>t, save when such publications impede, embarrass or obstruct the administration of justice. "Tliis respondent further says, that such has been the estab- lished law of this state for over thirty years past, and that said court has no jutlicial power to change the same. " Tills respondent takes this occasion to renew his repeated ex- pressions of confidence in the ability and integrity of said court, and of the individual members of the same, and as evidence thereof, gives the following article, which was published under his supervision, in said paper, issued on the 2Gth day of Septem- ber, 1ST2, that is to say: " ' The supreme court of Illinois, although, perhaps, too ready to grant motions for supersedeas, has no sympathy with criminals. The judges are all men infinitely above such suspicion. It is their business to examine every case appealed to them, without Vol,. L-8 wPf ■ i:* bill *m |i .1 il 'i I AMERICAN CRIMINAL REPORTS. any bias, ono way or the other, taking note solely of the facts presented in eacli case. The question for the higher court to decide is this: Did the accused, from first to last, have a fair trial? Tlie presumption is that he did, and the rule is to grant a supersedeas only in case it is clear that he did not have a fair trial. Wliile we cordially commend the zeal of the prosecuting attorney, and of our courts, in their efforts to check the appalling frequency of murders in this city and county, we suggest to them more caution in observing all the forms and technicalities of the law in the conduct of future murder trials. Tlie supreme court will certainly continue to insist upon it, and every supersedeas granted acts as a premium upon murder.' " This respondent further says, that at the time of the publi- cation of said article, first mentioned there was an intense ex- citement in the community, and particularly in the city of Chi- cago, on account of the frequent murders, and the escape of the perpetrators thereof, and this respondent is informed, and be- lieves, and so lie understood at the time, that the design of said article was to impress upon the community the importance of electing members to the next general assembly of this state, who would remedy the defects in the criminal laws thereof, by which criminals are able to escape punishment, and not to reflect on the ability or integrity of said court, or any member thereof, nor to imjiede, embarrass or obstruct the administration of justice. "AVherefore this respondent prays that said rule, as against him, may be discharged. Axdkew Suuman." " State ot Illinois — Cook Counti/ — ss, " Andrew Sliuman, being duly sworn, says lie is one of the respondents named in the foregoing answer, and that the mat- ters stated in suitl answer are true. Anokew Smumax.'' " Subscribed and sworn to before me this 31st day of October, 1ST2. Cykus J. CoiJSE, Notary Pullic.'''* Mr. Washintjton Bushnell, Attorney General, for the people: I desire, in this case, respectfully to call the attention of the court to the following authorities, which, in my judgment, are conclusive up(.(n the question of the power of this court to issue a writ of attachment against the respondents, for the jniblication of the matters and things contained in the information herein filed. It is a contempt, punishable by attachment, to publish re- PEOPLE r. WILSON. 115 marks in a newspaper, which liave a teiKlency to prejudice the public with respect to the merits of a cause depending in court, and to corrupt the administration of justice. 4: Black. Com., 2SC; F^jMii'te i?%.S 51 X. C, 202; id., 398; 1 Dall., 319. A publication ]icnding a suit, reflecting on the court, the par- ties to tlie suit, the witnesses, the jurors or the counsel, is a con- tempt of court. jroUlmjsioorth v. Daane, AVall., 77, 102; BronsoiVs Case, 12 Johns., 4G0; -t Black. Com., 280. The publication of a paper to prejudice the public mind in a cause depending is a contempt, if it manifestly refer to the suit, though it do not expressly appear on the face of the writing. EcftjruhrtL'd V. Panamore, 3 Yates, 4:38. Denying any criminal or disrespectful design, in publica- tions reflecting on the proceedings before the court, will not jus- tify the party, if they appear to the court to amount to a con- tempt. People V. P'reer, 1 Caines, 458, 518. The provision in the constitution of the United States, that the trial of all crimes shall be by jury, does not take away the right (tf courts to punish contempt in a summary manner. The provision is to be construed to relate only to those crimes M'hich by our former laws and customs had been tried by a jury. JloIl!»(/.nrart/i, v. Duane, "Wall., 77, lOG. The House of Hepresentatives of the United States may pun- ish persons not members thereof for contempt. Andei'son v. Dunn, Wheat., 204. Til is power is al«o incident to courts of law and equity. 2far- iner v. Dyer, 2 Greenl., 1G5; State v. White, Charlt., 130; Yo.teft V. Lansing, 9 Johns., 395; G id., 337; 4 id., 31G; Trial of Smith «fc Ogden, 73; State v. Tipton, 1 Blackf., 100; 1st Burr's Trial, 352; Clarl'. v. People,! Breese, 200; 8 Conn., 370; Un'ited States v. IFudson, 7 Cranch, 32; see 1 Kent's Com., 3d ed., 300 (note B). See also the case of State v. Ma- tlidi'K, 37 X. 11., 453, and authorities there quoted. In the celel)rated case of The Cohimomoealth v. John Dan- (h'/il'je, 2 Ya. Cas., 414, the court say: "They cannot but feel it a delicate task to define and decide upon the extent of their own powers, nor be ignorant that the judgment they are called upon to render may expose them, on the one hand, to the imputation of timidity and irresolution, or on the other, to that of usurpation and tyranny. The verity of these suspicions i 116 AMERICAN CRIMINAL REPORTS. "svoultl not be more unworthy of the judges than tlie fact of their shrinking from this question, because of the conse- quences in whicli themselves miglit be involved in it. ^' * * In this country we know of no privileges but such as exist for the public good. Many such privileges we have, from those which appertain to the legislature itself down to such as be- long to the lowest executive officer. Those which surround the administration of justice belong to the same order. Courts, their officers and process, are shielded from invasion and insult, not from any imaginary sanctity in the institutions themselves or the persons of those who compose them (as in the political and ecclesiastical establishments of another hemisphere) but solely for the purpose of giving them their due weight and au- thority, and to enable those who administer them to discharge their functions with impartiality, fidelity and efitct. " This is the true test of every privilege not granted l)y stat- ute, and is the spirit of every one (not merely private) which is Bo secured. The political character of the judiciary, and the tendency of the duties which are devolved upon it, have render- ed it necessary to invest it with a considerable share of these privileges. "It is confessedly the wealcest branch of all governments, wielding neither wealth, force nor patronage. Its duties consist in adjusting and settling the contested riglits of individuals, in controlling their turbulence and punishing their crimes. Tlie^o duties are often of a severe and rigorous character, and they ai-e generally to be discharged in almost immediate contact with those on whom they act. Their exercise will frequently elicit r'iG angry passions, or excite unworthy and sinister attempts to • las or avert their operation, and where there is little real power and no patronage, a certain degree of external dignity may have been considered necessary to sui)ersede a too freeakinurchase immunity from the consequences of any crime. " If next winter's session of the legislature does not hermet- ically seal up every chiidc and loop hole through which murder- ers now escape, it will deserve the bitter censure of every honest man in Illinois. "We must simplify our mode of procedure in murder trials. The criminal should be tried at once, and M'heu found guilty should be hanged at once — and the quicker hanged the better. " The courts are now completely in the control of corrupt and mercenary shysters — the jackals of the legal profession — who feast and fatten on human blood spilled by the hands of other men. All this must be remedied. There can be found a rem- edy, and it must be found." To the rule granted upon the motion of the attorney-general, the respondents have severally answered under oath. They have declined to argue the case, either orally or in writing, though opportunity has been allowed for that purpose. The respondent AVilson admits, in his answer, that he is the proprietor of the newspaper, but denies all knowledge of the article prior to its publication. AVhile tliis fact should intluence the degree of the punishment to which he may be liable, it does iC-. PEOPLE r. WILSON. 119 not exonerate liiin from responsibility. The re.*priiKlont Shumau admits he is the editor in chief. lie denies the uutliorship of the article, but says he read it before its publication, and permitted it to be published. Both respondents disavow any intentional disrespect to the court, or any desii^n to embarrass the adminis- tration of justice, and insist that they have the riifht to examine the proceedings of every department of the government of this state, and that they are not responsible, in a proceeding of this character, for the truth of their publications, or for the motives with which they may be made, "save when such publications im- pede, embarrass or obstruct the administration of justice." They state, under the solemnities of an oath, as a fact within their personal knowledge that " such hi;s been the established law of this state for over thirty years past, sml that said court has no judicial power to change the same." Such a sworn statement, as to the law of contempt api)licable to newspaper publications, is somewhat remarkable. If we give to the saving clause, in their answers, the interpretion which it was possibly designed to bear, the statement may be accepted not merely as a truth, but as a truism. The only ground for pronouncing any act or publica- tion a contempt of court is, that it tends in its final results to " impede, embarrass, or obstruct the administration of justice," If, on the other hand, the respondents designed to say, or to be understood as saying, that they are privileged to make any pub- lications concerning proceedings in court, however false, to as- sail the integrity of the court, or to endeavor to inihime popular ])assion concerning cases before it, and not be liable to attach- ment for contempt, unless it appear that the publication coni- plained of really has the actual and visible effect of impeding, embarrassing or obstructing the administration of justice, in a manner susceptible of proof as an accomplished fact — if the answers are to be understood in this sense, it is to lie reirretted that the respondents were not better advised as to the law, before swearing what the law is. The revised code of lS-±.5, in speaking of the supreme court, contains the following provision: "The said court shall have power to punish contempts offered by any person to it while sit- ting." This act has never been rejjealed or modified. In the case of Stuart v. The People, 3 Scam., 405, decided in 1842, a similar provision in the statute of 1S29, in regard to cir- mmm i: 1 • 1 120 AMERICAN CRIMINAL REPORTS. cnit courts, camo Ijufore tills court for construction. Tlio court, after saying that the statute ini«^lit, witli great propriety, Im re- gartled as a limitation upon the power of the court to punish for any other contempts than those connnitted in its presence, add the following most significant and important (pialiHcatiun: " In this power would necessarily be included all acts calculated to impede, end)arrass or obstruct the court in theadniinistratiim of justico. Such acts would be considered as done in the pres- ence of the court." The respondents cvidcjitly had this case before them when their answers were drawn. They use its language, with the ex- ception of a most material word, which changes the meaning of the entire sentence. The respondents say the rule is, that pub- lications are a contempt only when they impede, embarrass or obstruct the administration of justice. The rule laid down by this court was that they are a contempt when they are calculated to have that ett'ect. The dilference is radical, and marks pre- cisely the difterence between the guilt or innocence of the re- spondents in this case. They swear to a rule which would retpiire us to say that we have .actually been impeded, eml)arrassed or obstructed in the administrati(jn of justice, before we can hold the respondents guilty of contempt. The true test is, not whether the court has been weak or base enough to be actually influenced by a publication, but whether it was the object and tendenc\' of the publication to produce such an eli'ect. It need hardly be said that we can not accept, as a reason for discharging the rule, the disclaimer in the answers of any in- tentional disrespect or any design to emb; -rass the administra- tion of justice. The meaning and intent of the res]>ondents must be determined by a fair interpretation of the language they have used. Theycaimot now escape responsibility by claiming that their words did not mean what any reader must have under- stood them as meaning. Xo candid man can deny that the article in question was well calculated to make upon the public mind the impression that the court, in a pending suit, was influenced by money in its judicial action, and that it could be so influenced in other cases. Xeither can it be denied that the article seeks to intimidate the court as to the judgment to be pronounced, in a case then pend- ing, and involving the life or death of a liuman being. Tho iL t--f*i PEOPLE V. WILSON. m article ilecliiros tliat the money raised for Rafferty "13 operating gplt'iiclidly; " predicts that ho will be ^'ranted a new trial, and avers that " the sum of fourteen hundred dollars is enoui^h now- a-ilajs to enahle a man to purchase immunity from the consc- (lueiices of any crime," and that '• the courts are now completely in the control of corruj>t and mercenary shysters — the jackals uf the lej,'al profession." This language will bear but one in- terpretation. I shall not stop to cite and discuss the authorities bearing on the law of contempt, as that labor has been performed by another lueinher of the court; I merely quote the rule as laid down by ]!isli()p, an American writer, in his work on Criminal Law, sec- ti(»u 21ublicatiou could not be disrej^arded without iniidelity to our duty, lint by our roliitions to the bar, to the suitors in our court, to the entire judiciary of the state, and to the state itself, we felt constrained to cull the persons responsible for this publication to account. It may further be said that this article couhl do no pernuxnent injury to a couri" strong in the consciousness of its own integrity, anil in the co.ifidence reposed in it by the people, and, therefore, the publication was unworthy of notice. It is quite true that a solitary ])aragrai)h, under ordinary circumstances, woidd have ])rol)iihly been innocuous. It is to bo observed, however, that the answers of the respondents speak of the existing excitement in Chicago in regard to unpunished crime, and in that state of the public inind there was great probability that this article would win a ready credence if ])ermitted to go uncliallenged. Public meetings had been held, committees had been appointed to aid in the suppression of crime. The papers of Chicago, cir- culating throughout the state and the northwest, had called at- tention to this subject. It was made a frequent topic of discus- sion in the public prints, and when, finally, this article appeared, in a paper of noted sobriety and respectability, containing charges and imputations against this court, which were simply infamous, the nnijority of the court felt that it was necessary for tlie good name tif the state, withiri and without its borders, and necessary in order to preserve the confidence of the ])eople wholly un- shaken in this court, to request the attorney general to move for a rule against these respondents. The majority of the court still tliiidc they have acted wisely. We have been controlled by no feeling of personal malignity, and do not propose to inflict a severe ])unishment. We wish to call the attention of the press to the limits which circumscribe their comments on judicial pro- ceedings, and to remind them of the obligations imposed upon them by the great power which they confessedly wield. Espe- cially do we desire to keep the judicial reputation of the state free from the appearance of dishonor, and to prevent the growth 124 AMERICAN CRIMINAL REPORTS. n of that distrust in the miiuls of our own ])eople that would cer. tainly follow the circulation of articles like the one under con- sideration, if ]>ermitted to go unrebnked. The loss of public confidence in our integrity would be a calani- ity little less than the h)S8 of official integrity itself. Tlie pomp and circumstance which in Tv.igland aid to clothe tine courts and the law with dignity and pov.or, r.re not in consonance with our republican form of government. In this country the power of the judiciary rests upon the faith of the people in its integrity and in- telligence. Take away this faith, and the moral influence of the courts is gone, and popular respect for law inipaired. Law with us is an obstruction. It is personified in the courts as its min- isters, but its efficacy depends upon the moral convictions of the people. When confidence in the courts is gone, respect for the law itself will speedily disappear, and society will become the prey of fraud, violence and crime. The one element in government and society Vvducli the Ameri- can people desire above all things else, to keep free from the taint of suspicion, is the administration of justice in the courts. So long as this is kept pure, a community may undergo extreme mis- government, and still prosper. I*nt when these tribunals have become corrupt, and public confidence in them is destroyed, tlie last calamity has come upon a people, and the object of its social or^ '.lization has failed. The protection of life, liberty and prop- erty is the final aim of all government. This is accomjdished by an honest administration of just laws. The people, by their representatives, may be relied U])on to pass such laws, but unless they are honestly administered, neither life, liberty nor property enjoys the security which it is the object of government and so- ciety to give. If the time shall unhajipily ever come when the judiciary of this state has become hopelessly corrui)t, and justice is bought and sold, the loss of its moral and material well being will as certainly follow as the night follows the day. AVe are glad to say, that for more than half a century the ju- diciary oi this state has not only enjoyed the confidence of the people, but also has received the su])port of the press. Never before, sp far as the members of the court are aware, has the in- tegrity of this tribunal been assailed by a public jourind. The respectibility of the paper in which the article in question has appeared, and the circumstances surrounding its publication, m, " PEOPLE V. WILSON. 125 have given it a gravity which a casual article of like import vould not possess. We have personally felt great reluctance to taking notice of the publication, but our consciousness of the mischief tliat may be done in embarrassing tlie administration of justice, and impairing the moral authority of the judiciary througliout the state, if this article is to stand as an unpunished precedent, has coni]>elled us to issue the rule, and now compels m to order an attachment. It is the judgment of a majority of the court that an attach- ment issue against Charles L. "Wilson and Andrew Shuman, re- turnable forthwitli. Walker, J. I am also of the opinion that a writ of attach- ment should issue in this case. McAllistic., J., concurring. At the return of the rule to show cause, the defendants did not appear in person, but caused their separate returns under oath to be filed by attorneys, who declined to appear and argue the question raised by the returns. In this aspect of the case it is unnecessary to consider how far the mat- ters set forth go in excuse of the publication; because, if the de- fendants relied upon an excuse only, they should have appeared in their own proper person. Xot having done so, no mere ex- cuse can be regarded as a cause for discharging the rule, but only rs going to tlie question of punishment, in the event tluit the conrt finds the absence of a legal justification in the return. The People V. Frcei\ 1 Caines, 519. Tlie only legal justification sought to be establislied by there- turns is tlie disavowal of a bad intent, and m;itter of law arising upon the face of the whole proceeding. In this behalf their posi- tion is that they have the legal right to do just what they have done, and this court has no power or authority, by this proceed- ing, to call their acts into question, inquire into their motives or the ]ieriiicious tendency of the puldication. The editor of the paper states his position thus: "This respondent is advised and believes that the publication of said article had no tendency to impede, embarrass or obstruct the administration of justice in said court; that it was not so designed and had not that tendenc}', and this respondent does and will insist that he had, and still has, the right, as managing editor of said paper, to examine the ■' H 126 AMERICAN CRIMINxVL REPORTS proceedings of any and every department of the government of this state, and that he is not responsible for tlie truth of sueli publication, nor for the motives with which they were or are made, by the summary process of attachment for contempt, save when such publications impede, eml)arrass or obstruct the ad- ministration of justice." This position has been deliberately taken, and it is all there is of the case. If it has been well taken, the rule should be dis- charged ; if ill, the attachment should issue. For the purpose of analyzing the alleged justification, we will treat it as in the na- ture of a plea in bar. Then what are its elements? By the re- turn, actual participation in the act of publication by the editor, and constructive by the proprietor, are admitted. Then the only fact presented is tlie one of intent, by a disavowal of any bad in- tent; for the question, whether or not the publicatioiv had a tend- ency or was calculated to impede, embarrass or obstruct the ad- ministration of justice, is clearly a question of law, to be deter- mined by the court upon inspection of the article. So, also, is that of the power of the court. The return impliedly admits, that if the publication had the tendency to impede, embarrass or obstruct the administration of justice, the power of the court to punish the defendants for a c(jn- tempt exists; but it claims virtually that the exercise of the pow- er is precluded by the disavowal of any bad intent, and defend- ants' denial that the article had any such pernicious tendency. If the publication had the pernicious tendency which is claimed for it on behalf of the people, it is believed that no respectable authority can be found to the effect that a disavowal of a had in- tent amounts to a justification. It would be contrary to the rule of law that every man must be presumed to intend the natural and necessary consequences of his own deliberate acts. In the case of T/ie Peoj>le v. Freer, above cited, which was a proceed- ing like this, the point was expressly adjudicated by the supreme court of Xew York, Kent, J., delivering the opinion of the court; "We cannot but perceive," said that great judge, " that the dis- avowal of any bad intent will not do away with the pernicious tendency or effect of publications reflecting on judicial proceed- ings which are before us." I have said that the construction and tendency of the article in question were a matter of law for the court. Of the truth of this propositio ('ive it a f ral and co construed, teuipt will must be d circunistai As to tl: of the pul cle, was p Icuown to by both hi its penden natural uk rect and u part of thi lated and court as be unprincipli graph, reh t .-idently r sedcas, in order that ceeds: Tlu demonstra lute thcmsi is operatin clear throi He will b( MMtliin a for life, of all our dignsition teen lumdi nity from nn'glit be i sue of scai are now c shysters — ten on hui PEOPLE V. WILSON, 121 ! j( proposition there can be no doubt. But the court is bound to give it a fair and reasonable construction, according to the natu- ral and connnon import of the language employed; and when so construed, the question whether its publication constituted a con- tempt which the court is authorized to punish by attachment, must be determined by the character of the publication and the circumstances under which it was made. As to the circumstances, it will suffice to say, that at the time of the publication, the case of Ralferty, referred to in the arti- cle, was pending before us for decision. This fact was well known to the defendants, and especially to the editor, as appears by both his return and the article itself. It is of that cause and its pendency here that the article speaks ; and the ordinary and natural meaning of the language used conveys, in the most di rect and unequivocal manner, the charge of corruption on tlie part of this court, in respect to that very case; and was calcu- lated and intended to portray the character and position of the court as beinji: sodciiraded as to be under the control of the most unprincipled and despicable class of society. The first para- graph, relating to the delay of the court in deciding the case, c.idently refers to its action at the time of allowing the super- sedeas, in retjuiring llalierty's counsel to submit the cause, in order that it might be p.assed upon at this term. Then it pro- ceeds: The rifl'-ralf who contributed fourteen hundred dollars to demonstrate that " hanging is played out " may now congratu- late themselves on the success of their little game. Their money is operating splendidly. We have no hesitancy in prophesying clear through to the end just what will be done with liatferty. lie will be granted a new trial. He will be tried somewhere, M'idiin a year or two. He will be sentenced to imprisonment for life. Eventually he will be pardoned out, and this in spite of all our public meetings, resolutions, committees, virtuous in- digiKition and what not. And why? liecause the sum of four- teen hundred dollars is enough nowa-days to purchase immu- nity from the consequences of any crime. Then, that there might be no misunderstanding as to what is meant l)y this tis- sue of scandal, there come these significant words: " The courts are now com})letely in the control of corrupt and mercenaiy sliysters — the jackals of the legal profession, who feast and fat- tea on hunuin blood spilled by the hands of other men.'' This i' I I ^ m ; :■} '■{■mm^ 12S AMERICAN CRIMINAL REPORTS. expression would be understood, and was intended, to refer to tiiis court, wliich was the only one previously alluded to; ami what more degrading and scandalizing charge could be coudieil in language? It is well understood by the public that this court is the only one in the state which has the power to license and strike the names of attorneys from the rolls. If the court is under the complete control of the vile class designated, the de- gradation must be vol 'intary on the part of the court, yet it is liere proclaimed to the public that a court which possesses the power to rid itself of the shysters and jaclcals of the legal pro- fession is, nevertheless, completely under their control. After this chai'ge, is followed what may well be called a threat. " All this must be remedied; there can be found a remedy, and it must be found." The tendency of the article is to degrade and scandalize the court, to overawe its deliberations and extort a decision against the accused. That such was the intent and })urpose, scarcely ad- mits of a doubt. In this attempt to extort a decision of affir- mance, rests the great criminality of the article, rather than the reflections ujion tlie court. Publications scandalizing the court, and intended to unduly influence and overawe its deliberations in causes pending, are contempts which this court is authorized to punish by attachment, and it is essential to the dignity of character, the utility and independence of the court, that it should possess and exercise such authority. Here the corrup- tion is imputed, and the ettect predicted in such a manner as to prepare the public mind to believe the charge, if the decision turns out to be as i)redlcted. Any well constituted judge would receive the threats of a mob gatliered abuut the coui't house for the purpose of overawing his deliberations upon a particular case, with far greater coolness and equanimity, than such a threat- ened blot upon his character. AVhatever may be the character of Raft'erty, however humble and lowly in life, or however bud a man he may be, he is nevertheless clothed with the same con- stitutional rights which belong to the highest and best citizens in the state. lie can be deprived of his life only by due pro- cess of law. lie has the same right to invoke the safeguards devised for the protection of innocence, and to secure a fair and impartial trial, as though he were in fact innocent, and as any other citizen might do; because the law is, and in the nature of i PEOPLE V. WILSON. 129 tilings must be, general in its application. The establishment of these riglits by our beneficent constitution has cost too much suil'ering and blood, though in the distant past, to be readily re- linquished by an intelligent people; and it seems an extraordi- nary spectacle to witness such an attack upon the character of this Court, acting under the sanction of an oath of office, for ex- hibiting in its judicial action a proper respect for principles heretofore esteemed so sacred and so indispensable to the proper protection to life and liberty, and I can not refrain from remark- ing in this connection, that if this publication was made for the purpose of destroying tliose safeguards as a necessity for the sup- pression of the crime of murder in Chicago, as is avowed in the return, sucli a purpose ought to enhance instead of mitigating tlic criminality of tlie publication. It would take a long time, in my judgment, to inspire those criminally disposed, those born and reared in the haunts of vice, neglected by parents and so- ciety, without moral development, with a feeling of just respect for the sanctity of human life, by giving them examples, fre- quent examples, of the summary and reckless violation of that sanctity, by the public authorities, under forms of law divested of all the consecrated princijjles for the pi'otection of innocence, by trials which could not be otherwise than grim mockeries of justice, controlled, swayed, and their results dictated by the pas- sion and popular clamor of the hour. While I may truly say, that I have no feeling of resentment for the unwarranted at- tack upon the court of which I am a member, yet for this assault upon institutions which I have been educated to revere, I have feelings of deprecation and sorrow; and it is to be liclieved that a little careful observation and sober reflection will lead both the people and the press of Chicago to the conclusion that the fault lies not in the law nor yet in the courts. It seldom happens that a good and careful lawyer who has a good cause and wins it, has any trouble with errors in his record. It is an unpleasant duty, but I feel constrained by the deep- est convictions of conscience, by a lively regard for the credit of the state and her institutions, for the administration of justice, to concur in the opinion, that the rule should be made absolute, and that an attachment should issue. Thornton, J., also concurring. Vol. 1. — 9 A return has been made to I '"■ I 130 AMERICAN CRIMINAL REPORTS. the rule issued in this case, in which the respondents acknowl- cdi^e tlie publication of the article, in the Chicago Evening -luur- nal, and insist upon the right, throngli their paper, to examine the proceedings of every department of the government of the state, and tliai ' ;ire not responsible for such i>ublications, nor answerab:( ■ .h<.; "nmmary process of attachment for con- tempt, unless iiii; pnl/lications impede, embarrass or obstruct the administration ^f justice. It is also urged that the publication had no such tendeiK .'. Tlie cause pending in the o on rl, when the obnoxious publica- tion was made, was Jtafferty v. The People. liaflbrty had been found guilty of murder, in the court below, and sentenced to be hanged. As was his right, according to the constitution and laws of the land, he demanded of this court a calm and dispas- sionate examination of the facts and questions presented in the record, and insisted that the law had been violated in his trial and conviction. The life of a fellow man awaited our decision. The result to him was fearful; grave responsil)ility rested upon the court and the counsel, and solemn deliberation was required. Under such circumstances, the publication was made, and while the court was in session. It refers to the court, and the case jiend- ing in it; intimates that the court had blandly assured the ])ublic that there should be aspeedy examination; asserts that time had sped away, and no information had been given that anything definite had been done; that the prisoner's counsel was studying the policy of delay, with success, that the sum of fourteen hun- dred dollars, contributed to demonstrate that " hanging is played out," is operating splendidly; that the prisoner will be granted a new trial, and finally pardoned, in spite of the virtuous indig- nation of the public, " because the sum of fourteen bund red dol- lars is enough nowadays to enable a man to purchase immunity from the consequences of any crime," and then charges that " the courts are now completely in the control of corrupt and mercenary shysters, the jackals of the legal profession, who feast and fatten on human blood, spilled by the hands of other men." The slight allusion to the action of the legislature cannot relieve the gross attack upon the court and its officers. The case re- ferred to in the publication has been reversed by a unanimous court, for manifest error in denying the accused a change of sol, may I I FEOrLE i: WILSON. 131 venue, and thu:*, it may be, depriviiii^ him of an impartial trial, vouclisiifed to liim by the constitution and the laws. "Was tlie publication a contempt of court? Or can there be none, excc]>t for disobedience of its orders or process, or disor- derly or contemptuous behaviour in its presence? The law, as it is written, must answer. In 2 Hawkins, 220, contempts .are classified, as contempts in the face of the court, niul contemptuous words or writings concerning the court. Aiijain, tliey arc termed ordinary or extraordinary. Tlie latter cdusist of abusive and scandalous words respecting the court. Uouvicr's Inst., vol. 4, 385. According to Blackstone, book 4, 2S5, tlicy may be committed cither in the face of the court, or "by speaking or writing contemptuousl}'' of the court or judges acting in their judicial capacity." This court has defined them to be, direct, such as are oflered in the presence of the court, while sitting judicially, or construc- tive, such, though not in its presence, as tend by their operation to obstruct and embarrass or prevent the due administration of justice. Stuart v. The People, 3 Scam., 395. Bisliop thus defines constructive contempts: "According to the general doctrine, any publication, whether by parties, or strangers, which concerns a cause pending in court, and has a tendency to prejudice the public concerning its merits, and to corrupt tlie administration of justice, or to reflect on the tribu- nal or its proceedings, or on the parties, the jurors or the coun- sel, may be visited as a contempt." Yol. 2, sec. 26. In this state the constitution has established the judiciary, and made it a coch'dinate department of the state government. A necessary incident to its estuljlisliment is the power to punish for contempts. This court held, in an early case, that the power to punish for contempts was an incident to all courts of justice, independent of statutory provisions. Clark v. The People, Breese, 340. Courts in other states have also announced the doctrine that the power is inherent in all courts of justice, necessary for self pro- tection, and an essential auxiliary to the pure administration of the law. United States v. JVew Bedford Bridge, 1 Woodbury lit; ]\[iiiot, 407; State v. Johnson, Brevard, 155; Yates v. Laii- simj, t) Johns., 410; Cassart v. The State, 4 Ark., 541; J)/'eil v. The Statr. i Eng. (Ark.), 2G3; Vnited States v. JIudson, 7 :A ') w 'f 133 AMERICAN CRIMINAL RErORTS. Cranch, 32. The statute likewise ajiproves tlic exercise of tlic power, when it provides that the supreme court "shall have pow- er to punish contempts oftereil by any person to it while sitting."' This provision was in force July 1, 1829, and was the law when the decision in the case of Stuart v. The People, supra, was ren- dered. The court then declared that the statute " affirms a principle inherent in a court of justice, to defend itself when at- tacked, as the individual man has a right to do for his own pres- ervation." The statute merely affirms a preexistent power, and does not attempt to restrict its exercise to contempts in the pres- ence of the court, but leaves them to be determined by the prin- ciples of the common law. Without the power, courts could not fulfill their responsiljlo duties for the good of the public. They would lose all self-re- spect and would not perform the duty they owe to the state, if they failed to struggle for their indejiendeuce and defend their life. No one doubts either the right or duty of a court to punish, as contempts, rude and contumelious behaviour, breaches of the peace, or any wilful disturbance in its presence. Whence the necessity for the exercise of the power? It is that the law may be administered fairly and impartially, uninter- rupted by any influence which might affect the safety of the yar- ties, or the judge or officers of the court, that the court may have that regard and respect so essential to make the law itself re- spected, and that the streams of justice may be kcjit clear and pure. If the court Is scandalized and its integrity impeached, while a cause is pending before it, if the counsel arc grossly libeled, and low and obscene terms are applied to them, which may have the effect to intimidate, the consequences must be tha same as if direct contempts are offered. The administration of tlie law is embarrassed and impeded, the passions, often unconsciou^:- ly, are roused, the rights of parties are endangered, and a calm and dispassionate discussion and investigation of causes is pre- vented. The authority to punish for constructive contempts has ha \ recognized by numerous courts, in England and America. I shall merely cite a few cases;: licsjnihlica v. Passmore, 3 Yeates, -ii', Osivuld's Case, 1 Dallas, 310; People v. Freer, 1 Caines, 515; T>:nno/f< Wall. C. ( In Tei\ brought b crjuity, in jiarty to a liill was circulated tlie respoi: equity if ( The con court, and turb the fi " The circ person un honorable ran table ii In /u'-^y writing to llecting u] publicatioi cause depe In Oswi as]iersions be a conte power to p " nay, that we should In the c made in a and was ii and to inti In the casi lor, delive scandalizii awe their ished by a of cliaracti soss and e: In Unix r TEOrLE ('. WJLSON. 133 T':nnci/\le. ]Jut there must be toleration, for "error of opinion shall always be tolerated, when reason is left free to combat it." This character of animadversion should never be regarded "as a contempt of court. The freedom of the press, however, is fully protected, without licensing libel and ribaldry, and charges of corruption and l)ri- bery, against courts and their officers. Whatever the intent may be, though it may mitigate the offense, it cannot lessen the injury to character, or undo the mischief. ll'1 TEOPLE V. WILSON. 137 The n'tflit of the respondents mnst 1)C conceded to examine the proct'C'ding-s of every de])artnient of the government, not in pas- sion find with abuse, but with fiiir and manly argument. Good will then result, error may be exposed, and reason will resume its swiiy. Then the press will l)e a power and a blessing, and will ey.ercise its constitutiomil right. The publication under consideration is not criticism. Its ten- dency is to embarrass the court. It charges crime, when none exists. It is scandalous, abusive, passionate in tone and spirit. It ■ 'ipugns the integrity of this court, and classes the counsel of fMised amongst the most degraded of the profession. Its in. ;iiarges of crime are calculated to disturb the mind of the pure man, and unfit iiim for the discharge of arduous and respon- gible duties. Abuse can never convince. Passion must rouse passion. The tendency must be to impair the usefulness of this court, deprive it of respect, obstruct it in the due administration of the law, and if silently submitted to, so debase it as to present it a spectacle beneath even contempt. I concur in the issuance of the attachment. ni Scott, J., dissenting: Having been opposed in the first in- stance to issuing the rule to show cause, I am of opinion, after more mature reflection, that the rule should not be made abso- lute. AVhatever may be the true construction of the article set out in the information, the respondents have both denied under oath, any purpose in its jmblication to obstructor influence the adminis- tration of the law, or .any intention to reilect upon the integrity of any member of the court, and this, it seems to me, is all that they ought to be required to do. No public good can jwssibly re- sult from pressing the matter further. Independently of the dis- claimer on the part of the respondents, I am unable to perceive how the article in question could in any manner aft'ect, hinder or obstruct the administration of the law in this court. The news- paper in which the paragraph was printed was published in a city distant from the one where the court is now holding its ses- sions, and it was not thrust upon the attention of the court by the respondents or any one else. It is unlike the objectionable article in the case of Stuart v. The People^ 3 Scam., 397, which 'ijki ft 138 AMERICAN CRIMINAL REPORTS. i was published in the city where an important trial was pending before a jury, and wliich, with some pro])riety, could be said to be a constructive contempt, committed in tlie jn-esence of tlie court. If it is anything more than simply an unjust criticism on the court in reference to a cause then pending, the most un- favorable view that can be taken is, that it is a constructive con- tempt, and as such, it could not directly or indirectly all'ect the administration of justice in an appellate court. I should be very unwilling to admit that it could have any such effect. It seems to me that the majority of the court have attached an undue im- portance to a mere newspaper ])aragraph. From an early period in the history of our jurisprudence, the power has been conceded to all courts of general jurisdiction to punish, in a summary manner, contempts committed in their ju'cs- ence. The right rests on the necessity that was found to exist to enable courts to administer the law without interruption or im- proper interference, and to maintain their own dignity. So indis- pensable is this power that its just exercise, so far as it may he necessary for the due ])rotection of the courts, has never been questioned. The legislature has provided that the supreme and circuit courts may punish parties for contempts committed against them while sitting, and it is a very grave question whether it was not the intention, by imi)lication at least, to limit the power of courts to punish for contempts to such as should be committed in their presence. I am not, however, unmindful that courts of the highest authority in this country and in England have as- sumed jurisdiction to punish, in a summary manner and on tlicir own motion, what are termed constructive contem])ts — such an one as is sought to be set forth in the information liled. The exercise of this extraordinary power by a court of final jurisdiction has ever been regarded as of (questionable authority, and one liable to great abuse, and which might become danger- ous to the liberty of the citizen. Its exercise by the courts in this country has been tolerated rather than conceded Ijy con- stitutional provisions or legislati.e eiuictments. The objection proceeds on ihe ground that the court ought not to assume to l)e the judge of the oflfense against itself, and of the mode and meas- ure of redress, where the law has provided, ami where in the very nature of things there can be no mode of reviewing the ac- PEOPLE V. WILSON. 139 tion of the court in the premises. There has always existed jeal- ousy agiiinst the exercise of arbitrary power by any tribunal sup- posed to be derived from common law oorj'ces, and not expressly granted by constitutions or laws enacted by legislative assem- blies. It must l)e conceded that public journals have the right to criiicise freely the acts of all public otlicers — executive, legis- lative and j\idicial. It is a constitutional privilege that even the le"-i!?lature cannot abridge. Such criticism should always be just, and with a view to promote the public good. In case the conduct of any public olHcor is wilfully corrupt, no measure of cunilonination can be too severe, but when the i/iisconduct is simply an honest eiTor of judgment, the condemnation ought to to be mingled with charity. The public have a profound interest in the good name and fume of their courts of justice, and especially of tl;e courts of last resort. Everything that all'octs the well being of organized so- ciety, the riglits of property and the liberty of the citizen, is sub- mitted to their iinal decision. The confidence of the public in the judiciary should not be wantonly impaired. It is all im- portant to the due and efficient administration of justice, that the courts of last resort should possess, in a full measure, the entire confidence of the people whose laws they administer. All good citizens will admit that he who wilfully and wantonly as- sails the courts by groundless accusations, and thereby weakens the public confidence in them, commits a great wrong, not alone against the courts, but against the people of the commonwealth. Dut v.lio shall furnish the remedy? Shall the court that is as- fcailed, or shall the legislative power of the state? In my judg- ment, there are many and politic reasons why the legislative power alone should provide the remedy, if any shall be found to be necessary. It is far better that the judges of the courts should endure unjust criticism, and even slanderous accusations, than to interpose, of their own motion, to redress the offense against themselves, where the ofiensc comj)lained of is not committed in their immediate presence. It is a matter of public history, that it has been the policy of the press in this country to uphold and nnuntain the authority and dignity of the courts. If a con- trary policy should ever be inaugurated in this state, to such an extent as to seriously afi'ect the reputatiou or imjjair the effi- ciency of the courts in the administration of the law, I have no 't 140 AMERICAN CRIMINAL REPORTS. 1 :• 11 doubt that the legislature will afford an appropriate remedy. It was said by this court, in the case of Stuart v. The People^ m- pm, tliat respect to the courts cannot be compelled; it is the voluntary tribute of the public to worth, virtue and intelligence, and while they are found on the judgment seat, so long and no longer will they retain the public confidence. SiiKLDON, J., also dissenting: I do not concur in the action of the majority of the court, in this case. I am opposed to the ex- ercise of the power of punishing for constructive contempts, where the alleged contenq>t consists merely in personal asper- sions upon a court, contained in a newspaper article, especially in the case of an appellate court, where I am unwilling to admit that newspaper paragraphs aft'ect, or are calculated to embarrass the administration of justice. Breese, J,, also dissented from the action of the naajority of the court, in entering the rule and awarding the attachment. The writ of attachment awarded by the court was issued on the 6th day of November, 1872, in the following form: " State of Illinois — I)i the Siqn-oae Court — Xorthern Grand Division — September Term, A. D. 1872. " The PcojyJe of the State of Illinois to the Sheriff of Za Salle County — Gkeetixg: Whereas, it has been made to appear that Charles L. Wilson and Andrew Shumaii have printed and published an article which has been adjudged by the said court, now in session at Ottawa, in the aforesaid county and state, to have been printed and published in contempt of said court while so in session, as aforesaid: "We, therefore, command you, that you attach the said Charles L. Wilson and Andrew Shuman, so as to have their bodies forthwith before our said supreme court, at Ottawa, in the county aforesaid, to answer the said court of the said con- tempt, by them lately committed against it, as it is said, and further, to do and receive what our said court shall, in that be- half, consider. Hereof fail not, and have you then and there this writ. "Witness, Charles B. Lawrence, Chief Justice of said court, and the seal thereof, at Ottawa, this Gth day of iS^ovember, in the year ot our Lord one thousand eight hundred and seventy- two. W. M. Tatlou, Clerk of the Supreme Court." !,r k^ PEOPLE V. WILSON. 141 On the Stli day of November the respondents appeared in court, in answer to the writ of attachment, whereupon the chief justice pronounced the following sentence: You, Charles L. Wilson and Andreio Shiwian, are before this court under an attachment for contempt, in consequence of an article relating to a cause pending in this court, and published in a newspaper of which you, Charles L. Wilson, are the propri- etor, and you, Andrew Shuman, are the chief editor. In the opinion delivered by the majority of this court, when passing upon your return to the rule, to show cause why an at- tachment should not issue against you, we have said all that we desire to say in regard to the character of the publication, and the injury which such publications tend to cause to the admin- istration of justice. It was then held that your answer showed no reason why an attachment should not issue. It now only re- mains to impose upon you a penalty for the offense. It io in the power of the court, in cases of this character, to punish by both fine and imprisonment. We have, however, no desire to intlict a severe penalty. Our object will be accomplished if we show to the press that it cannot be jjermitted to attempt to influence the decision of cases pending in the court. "We are not unmindful of the fact that neither of j-ou wrote the ob- jectionable article, and that you, Charles L. Wilson, did not see it before its publication. AVe shall impose upon you oidy a moderate tine, as we cannot believe you are likely to commit similar offenses in the future. You, Charles L. Wilson, are adjudged to pay a fine of $100, and you, Andreio Shuman, are adjudged to pay a fine of 8200, to the treasurer of this state. Y"ou are also adjudged to pay the costs of this proceeding. The fine will be paid to the clerk of this court, who is directed to remit the same immediately to the state treasurer, and procure his receipt therefor, to be filed among the papers in this case. The sheriif will hold the respondents in his custody until the fine and costs are paid to the clerk. Note. — The action of the supreme court of Illinois, in this case, in punish- ing the proprietor of a newspaper for an article that was pul ilished in his paper mtliout iiis knowleil{jre or privity, must be bas(^(l on the same principle that has boon applied by the Kn<,'lish courts in cases of criminal prosecutions for libel. In Walt'ora's Speeches of Lord Ei-skine (vol. 2, p. 'X\S)), the doctrine is thus stated: "As the law stands at present (A. D. 1810), from a cunvut of authorities, it ia ■ 1 irifjl-fi'": I Ki Mi AilERICAN CRIMINAL REPORTS. undoubtedly not competont to any judge trying an indictment or infonuation for alibel.to give any other direction toajuiy thiui that a publication, tlioiiyli iirovud to have been sold by a sciTiint, uUhout IcnowJedyc of the via stir, involves tlie master in all the criminal consequences of the pubhcation." Tiiis was the law, l)\it before the presontca.se, the reporter has not met with any American case in wliich this docti-ine has been sanctioned or applied, and it is believed that the Anicrioui courts will be slow to adopt it. The true doctrine would seem to be, that in ev- ery case where one is sought to be made criminally responsible for the act or ik- fault of another, as in the case of master and sei-vant and husband and wife, tliut proof of the act and proof of the relation should never bo more than ]>rima facie evidence of guilt, leaving it open to the master or husband to show that the crim- inal act was not done by any consent, connivance, procurement, or made possible by any criminal negligence, on his part, and this when establL^^lied shrmld cfmsli- tute a good defense. Further than this the law ought r.ot to go. The anciiiit doctrine in criminal prosecutions for libel was only one instance of the wi( keel and pernicious consequences of "presumptions of law "as a means of proof in criminal cases. On tlic subject of the criminal responsibility of tlu> master for the act of the servant in criminal prosecutions for hlx'l, the eloipiont Lingniigt' of Lord PJrskine in CuthiU's Case, is worthy of consideration: "In the cas-e of a civil action, tliroughout the whole range of civil injuries the master is always cic- iHtcr answerable for the act of his seiTant or agent; and accident or neglect can therefore be no answer to a plaintiff complaining of a consequcnlial wrong. If the driver of a public can-iage mahciously overturns another upon the roiid, wliilst the proprietor is asleep in his bed at a hundred miles distant, the i)ariy in- jurmg must unquestionably pay the damages to a farthing; but thoiigli such ma- licious ser\-ant might also be ijidicted, and suffer an infamous judgment, coithi the master aho hccomc the ohject of such a prosecution? Ceutakn'i.y not. In tlio same manner, partners m trade are r/c/?/// answerable for bills drawn by one another, or by their agents, drawuig them by procuration, thongii fraudulently and in abuse of tlieir tmsts. IJut if the partner commits a fraud by forgery or fictitious ijulorsements, so as to subject liimself to death, or other punishment liy indictment, could the other 2>artiiers be mdicted? To answer such a question here, would be folly; because it not only answers itself in the neijatire, liut ex- poses to scorn every argument wliicli would confound indictments with civil ac- tions. Why then is imntiug and 2»ihlishing toha an exception io even/ other human act? Why is a man to be answerable criminaliter iov the crime of liis servant in this instance, more than in edl other eases? Why is a niiui who hap- pens to have puVilished f„ hbel under circumstances of mere accident, or if you will, from actual CiU-elei^sness or negUgence, but irithout criminal jiurjtose, to ho subjected to an infamous punishment, and harangued from a British bench, as if he were the malignant author of that which it was confessed before the court de- livering the sentence, that he never had seen or heard of? As far indeed as dam- ages go, the principle is intelligible and universal; but as it establishes « cWi/if, and inflicts a punishment which atl'ects character and imposes disgnice, it is shockuig to huuumity and insulting to common sense. The Court of ICinj^'s Bench, since I have been at the bar (veiy long, I aduut, before tlio noble Icjnl pi-esided in it, but under the administration of a truly great judge), pronounced the infamous judgment of the pillory on a most respectable proprietor of a news- paper, for a libel on the Russian ambassador, copied too, out of aiiotlier paper, but which i ini/self showed to the court by the affidavit of his physician, appeared PEOPLE V. WILSON. lis in tiie/irst as well as in tlio .iccomi papor, whilst the dofomlant was on his sick bed in the country, (h'lirioiis in of eve)'. 1 bcliovo that affidavit is still on the tiles of the court. I have thought ot itofton — I have dreamed of it, and started from my sleep — sunk back to sleep, and staii^iil from it again. The painful recollection of it I shall die witli. How is this vindicated? From the siqiposcd necessity of the case." Following are additional cases on constructive contem[)ts by publications retlecting on courts, and a fuller statement of some of the ciusea cited in the opinion : "A person had been committed for perjury by the ,iuspect of the i)eople, and, throwing iiside the ermine, rush into the nuul contest of politics under the excitement of drums and flags. From the un- ening lessons of the past, we are assured that a judge who openly and publicly disjiliiys iiis political party zeal rendei-s himself unfit to hold the 'balance of justic-s' and that whenever an occasion may ofl'er to serve his fcdlow-partisans, he will yield to the temptation, and the ' wavering balance ' will shako. It is a uatund wealcness ui nuxn, that he who warmly and publicly identifies liimself with iU AMERICAN CRIMINAL REPORTS. M* a political party, will be tempted to uphold the party which upholds him, and all exi^eriences teaches us that a partisan judj,'e cannot be safely trusted to settle the gi-eat principles of a political constitution, wliile he reads and studies the book of its laws under the banners of a party." The court held that this publication wtis a contempt of court, which they had an mherent and constitutional i-i^ht to pun- ish summarily, by striking the respondents from the roll of attorneys, althou{,'h it was admitted by the court that the statute of North Carolina, providing for the punishment of contempts of court, did not embriuie this case. In State i\ Murrill, 16 Ark., 'SSi, which wivs a proceeiliny to punish, as for a contempt, the publisher of a newspaper for an article reliectuig on the court, the respondent pleaded to the jurisdiction of the court. The plea set up that the publication was not embraced within the statute regulating the punishment of contempts, and that the court could punish no act a-s a contempt except such as are enumerated in the statute. To this plea a demurrer was interijosed and the court sustained the demurrer. The report of the case does not contain the arti- cle which was the subject of the proceeding. Its character and the circumstances under which it was publislied can only be gathered from the following language used by Chief Justice English in delivering the opinion of the court: " One Ellis was lodged in the jail of Pulaski county, on a charge of murder, fail- ing to give the bail required by the committuig magistrate. The office of the cir- cuit judge of the district in which the offense was committetl being at the time vacant, Ellis applied to the supremo court for a haheiis corpus, alleging that the bail required by the magistrate was exwssive; that he wa.s unable to give it, and prajdng the court to inquire uito the matti;r, and reduce the amount of liail, etc, The writ wiis accorduigly issued, the cause heard on the 20th of February, up- on the testimony produced, and the court being of the opinion that the ort'enso was a bailable homicide, ordered the prisoner to be let \o bail ujwn a recognizance, in the sum of $o,000, •mW\ good and sufficient security for his appearance at the ensuing term of the Prairie cu-cuit court, where the offense wivs coguizable. Fiiiling to furnish the bail required, the jirisoner was remanded to jail, with the privilege of being brought before the court again to enter into the recognizance, should he procure the requisite securities, which he failed to do. " On the 24th of March following, and while the court was still in session, the defendant, it appears, fi'om motives which it is of no consequence to conjectm-e, published the article in question, directly in reference to the decision of the coiut, upon the application of Ellis. "The language of the article would seem to intimate, by implication, that the court was induced by briber;/ to make the decision referred to. It is not an attack upon the private character or conduct of the membei-s of the court, as men, but seems to be an unputation against the purity of their motives while aciing officially, as a court, in a specified case. Had the publication referred to them as individuals, or been confined to a legitimate discussion of the con-ectness of their decisions, in tliat or any other case, no notice wouhl have been taken of it officially."' The court conceded that the Arkansas statute for the punishment of contempts did not extend to the pubhcation in question, but nevertheless held that the court had a constitutional power to punish as for a contempt, for the publication of a libel, made during a tenn of the court in reference to a case tlien decided, im- puting to the court, officially, bribery in making the decision — such power be- ing inherent in courts of justice, springing into existence upon their creation, as a necessary incident to the exercise of the power confeiTed upon them. i It was fiu- this inhereni was a contei In Hesfitd a libel suit tl to prejudice from the pro not stand a ( A rule W£U liim as for a the whole, w has been asc after be sum this court, ai unanimously " It only r that the pres "It is cert no act of the suspend it. tution, there heretofore f' defendant is mits an outr; evidence can the judges ? liavior, for gi the present o satisfactorj: to a contemi judges, and immediately, forms of a ti the party per lie justly imp ingthem. tion; and we "Thepubl ing. is a cont appeal' upon On the oth paper article, that court of the court wi a mere libel ing for the \ courts, and t within the t*' lication, as a Vol. I PEOPLE V. WILSON. 145 It was further lioltl tluit the logislature hail no power to abridge or abrogate this inherent, constitutioniJ power of the court, and tliat the article iii question was a contempt of court. In Ihsjiuhlka i\ Oswald, 1 Dall., 343, the respondent, who was defendiuit in a libel suit then pending in the court, published an address wliich was uitended to prejudice the public mind upon the merits of the cause, and insinuated that from tlie prejudices of the judges against him, arising out of former trials, he did not stand a chance of a fair trial. A nile was issued to show cause why an attachment should not issue to punish liira as for a contempt. On a motion to discharge the rule, the court say: " Upon the whole, we consider the publication in question as having the tendency which lias been iiscribed to it, tiiat of prejudicing the public (a part of whom must here- after be summoned as jurors), \nth respect to the merits of a cause depending in tills court, and of corrupting the administration of justice. We arc, therefore, unanimously of opinion, on the frst point, that it amounts to a contempt. " It only remains then to consider whether the offense is punishable in the way that the in-esent motion has proposed. " It is certain that the proceeding l)y attachment is as old as the law itself, and no act of the legislature, or section of the constitution, has interposed to alter or suspend it. Besides the sections which have been already read fi-om the consti- tution, there is another section which declares that " trials by juiy shall be as heretofore;'' i\n(\. surely it cannot be contended that the offense with which the defendant is now chiu-ged was heretofore tried by that tribunal. If ii man com- mits an outrage in the face of the court, what is there to be tried? What further evidence can be necessary to convict him of the otfense than the actual view of the judges? A man has been compelled to enter into security for liis good be- havior, for giving thf'. lie in the presence of the judges in Westminster Hall. On tlio present occasion, is not the proof from the inspection of the paper as full and satisfactorj- as any that can be ottered? And whether that publication amounts to a contempt or not is a point of law, which after all, it is the provinc ' of the judges, and not the jurj-, to detennine. Being a contempt, if it is not punished immediately, how shall the mischief be corrected ? Leave it to the customary forms of a trial by jury, and the cau,se may be continued long hi suspense, while the party perseveres in his misconduct. The injurious consequences might then 1)0 justly imputed to the court for refusing to exercise their legal powers in prevent- ing tliem. For these reasons, we have no doubt of the competency of our jurisilic- tion; and we think that justice and propriety call upon us to proceed by attachment.'''' "The publication of a paper to prejudice the public mind, in a cause depend- ing, is a contempt, if it manifestly refers to the cause, though it does not expressly appeal" upon the face of the writing." liai/ard t\ Passmore, 3 Yeates, 4-'i8. On the other hand, in Ex parte H'lckey, 12 Miss., Tol, it was held that a news- paper article, iiublishetl during the session of a court, pending the trial before that court of a prisoner uidicted for murder, charging the judge presiding over the court with being an abettor of the murderer, is not a contempt of court, but a mere libel upon the functionary. The court also held that the statute provid- ing for the punishment of contempt, was a limitation upon the power of the courts, and that nothing could be punished as a contempt except what came vithin the tenns of the statute, and that a power of punishing a newspaper pub- lication, as a constructive contempt, would be unconstitutiona'.. Vol. I.-10 I ' ( •i: 146 AMERICAN CRIMINAL REPORTS. State vs. Foster. (37 Iowa, 404.) EiiBEZZLEsrENT: What ',4 sufficient employment— Kewlij discovered evi- dence. Under an indictment founded on the ordinary statute against embezzlomont, evidence chat the prosecutor gave the prisoner a watcli which tiie prisoner, as agent for the prosecutor, was to trade for a wagon when ho could liiul :i suitable opportunity, luid for which service the prosecutor was to pay tlie prisoner $5.00, shows a sufficient omployniont to make the prisoner guilty of embezzlement in converting the watch to his own use. On the trial of an indictment for embezzlement, the state gave evidence that the watch embezzled was worth $95.00. The prisoner gave no cudoiico on this point. After the trial, it was discovered that the watch was not worth over $10 or $15. No negligence appealing on the part of the prisoner or his counsel, it was held that a motion for a new trial on this ground was improperly overruled. Beck, C. J. 1. Tlie second count of the indictment upon which the defendant was convicted cliarges that he, being " the servant and agent of one P. B. Furlong, and being over tlie ago of sixteen years, did .... by virtue of his said einployuieiit, have, receive, and take into his possession and under his control, one watch, of the value of $05, tlie property .... of P. V>. Fur- long, his employer, .... and the said watch .... without the consent of his said employer, did feloniously embezzle and fraud- ulently convert to his own use." The statute upon which this indictment was found, is as follows: " If any officer, agent, clerk or servant of any incorporated company; or if any clerk, agent or servant of a copartnership; or of (if) any person over the age of sixteen years, embezzle and fraudulently convert to his own use, or take and secrete, with intent to convert to his own use, without the consent of his era- ployer or master, any money or property of anctther, which has come to his possession, or is under his care by virtue of such employment, lie is guilty of larceny, and shall be punished ac- cordingly." Rev. Stat.,§ 424-1:. There was evidence tending to prove that, by an agreement between Furlong and the defendant, the latter undertook, in consideration of $5, to be paid him by the former, to trade a watch, the property of the former, for a wagon. • ■,* Defendant was to find some one owning a w.agon, who would tra( Under tlii who failed own use. follows: "7. If: ment whei trade it fo receive a avenueiits Furlong, u plojiiient.' It is ins upon whic or employ and Furloi zlement, u It is ins that the tr denee and tutes an foundation It may the fpiestii have been from the tirely simi was foiHK the solutio to be into found thet years em without t property o der his cai Tlie woi accused ai offense, ai M'ithout nt ployer" a STATE r. FOSTER. 147 would trade it for a wutcli, and make the exchange for Furlong. Under this agreement the watch was delivered to the defendant, who failed to make the trade, and converted the watch to his own use. The court instructed the jury upon this evidence as follows: " 7. If you find that Furlong and the accused made an agree- ment whereby the accused contracted to receive the watch and trade it for a two horse wagon fcjr Furlong, for which he was to receive a compensation of $5, this is sufficient to sustain the averments that the defendant was in the employment of said Furlong, and that he received the watch by virtue of this em- ployment." It is insisted that this instruction and the view of the case upon which it is based are erroneous, inasmuch as no such relation, or employment, is shown to have existed between the accused and Furlong, as is a necessary ingredient of the crime of embez- zlement, under the statute. It is insisted, in a very able argument by defendant's counsel, that the transaction between the parties, disclosed by the evi- dence and contemplated by the instructions of the court, consti- tutes an ordiiuiry bailment, and could not, therefore, be the foundation of the crime of embezzlement. It may be suggested, before proceeding to the discussion of the question presented, that the authorities cited, and others we liave been able to consult, throw little light upon the subject, from the fact that they interpret, and apply to, statutes not en- tirely similar to the law of this state under which the indictment was found. Upon the construction of this enactment depends the solution of the rpiestion before us. Its language necessary to be interpreted, correcting the obvious tyj)ographical error found therein, is this: " If any person over the age of sixteen years embezzle and fraudulently convert to his own use, .... without the consent of his employer or master any money or property of another which has come to his possession, or is un- der his care by virtue of his employment, he is guilty," etc. The w^ords indicating the relation that must exist between the accused and another, which is a necessary ingredient of the offense, are "employer," " master," "employment." "We will, without notice of the word "master," consider the term " em- ployer " and " employment." They are not of the technical >-M 148 AMERICAN CRIMINAL RKrORTS. i iijjli 'i',*! iffi' i ■ - i ^B language of the law or of any science or pursuit, and must therefore he construed according to the context and the ai)prove(l usage of the language. Kev. Stat., § 20, p. 2. The words are defined as follows: Ent2)loyment — " the act of employing or using. 2. Occupation; business. 3. Agency or service for another or for the puldic. Employer — ono who employs; one who engages or keeps in service." The verb "employ *' is defined as follows, when used witli a human being either as its subject or object: " To engage in one's service; to use as an figent or substitute in transacting l)U8i- ness; to commission and intrust with the management of one's affairs." AVebster. It will be seen from the definition of these words that the statute contemplates the relation of .agency, a contract fi)r ser- vices, whereby the accused is bound to do or perform some- thing in coimection with the property embezzled, and that by virtue of such relation he acquired possession thereof. It by no means appears that the idea of bailment or bailee is exeliuled from these definitions, but without following the thought or re- lying upon it, we will inquire whether the evidence establishes a relation of agency or service existing between the accused and Furlong, and whether such relation is contemplated by the in- structions above quoted. AVe thiidc it is in each. The watch was received under an agreement that the accused was to act for Fur- long in making a contract of sale of the property, ?'. «?., excli;ing- ing the watch for a wagon. Can it l)e doubted that any proper contract of sale within the scope of the accused's authority wuuM have bound Furlong? Certainly he wouhl have been bouml thereby; and one of the ingredients of the transaction creating it a binding contract upon him would have been the relation of agency existing between him and the accused. We conclude that the idea of agency is clearly expressed, both by the language of the indictment and instructions, and the relation is established by the evidence, or rather that there was evidence tending to establish it rendering the instruction relevant and ])roper, upon which the jury may well have found its existence. AVe, therefore, find no error upon this point in the rulings of the court upon the instructions and the motion assailing the in- dictment, because the facts alleged do not constitute an offense under the statute. See upon this point 2 AVhart. Am. Crini. Law, g 103 Crim. Pra( A motio was overru Evidenc( in I' it to b( U]xm this davit and they wei-e i of any witti as to the Vi contradicts that the wa $15. It dot erly attrihu evidence of in fact the i were unable do so. The at tor newly disco thewitnessc chiiracter ol was said by exercise of on an atten state's witn The impc upon a fact a felony to For the e a new trial judgment u Note. — W for a particula can be said to the fraudulent tion in most A is no embezzle " Another poir ,1: 1 STATE V. FOSTER. 149 I '^ Law, §1030; T/u; Pcoj^le v. J)((lton,U "Wend., 581; 3, Arch. Crim. Pi'iic. and PI., 45(», 444 and notes. A motion for a new trial Itecansoof newly discovered evidence was ovcrrnled. "NVe think it slionld have been snstaincd. Evidence as to the character of the watch and its value, show- ing' it to be worth .^0.5, was given hy the state. No evidence uiHtii this point was introduced by the accnsed. His (»wn atH- (lavit and that of his counsel, we think, show the fact that they were not in possession at the time of the trial, of the names of any witnesses hy whom the evidence on the part of the state, as to the value and character of the prrtperty, coidd have l>eeu contradicted. It is shown l»y the affidavits of these witnesses that the watch is of base metal and only of the value of $1<> or $15. It does not appear that any fault or negligence can be prop- erly attributed to defeiulant or his counsel in not introducing the evitleiice of these or of other witnesses' upon the point at the trial ; in fact the showing nnule is such that we must conclude that they were unable, from ignorance of the luimes of the witnesses, to do so. The attorney general suggests that the eviilence claimed to bo newly discovered is but cumulative, on the ground that one of the witnesses of the state does not give as high a description of the character of the watch as the prosecuting witness. But nothing was said by him as to its value, and defendant's counsel, in the exercise of pro])er prudence, may well have feared to venture np- on an attempt to establish a point in the defense by one of the state's witnesses. The importance of the evidence cannot be questioned, for it is upon a fact which, if established, would reduce the offense from a felony to a misdemeanor. For the error of the district court in overruling the motion for a new trial, on the ground of newly discovered evidence, the judgment is reversed. Juclgme7it reversed. Note. — Whether or not money or property delivered by the owner to another for a particular puriiose, and by that other fi-audulontly converted to his own use, can be said to be money or property received " by virtue of an employment," and the fraudulent conversion an embezzlement, may be considered still an open ques- tion in most American courts. The English doctrine is, that in such a case, there is no embezzlement, and Bishop seems to consider this the settled law. He says: "Another point is, that the money or other tiling must not come into the mas- ;-'l 150 AIIFJRICAX CRIMINAL RKPOKTS. tor's posHPssion boforo it Joea into tho servant's; for if it ilocs, tlio tiikinjr of it, wiiftlifr ilt'livort'd to the Hcn-niit by tlio muster or not, is liircony; but it iim>t conic directly from ft third pernon, and not from tlio niast^n'," i. v., to lonstituto cmbezzlonicnt. 2 Hiish. Crim. Law, S -Hm, and cascw thm'o titfd. No AnnTiiim cast' is citi'd whieli beaix out tiiis clodrino. On the contrary, a.-* irainti-d out by Mr. Bixliop in .suivcpding sections, the doctrine in New York and in Alabama is directly the reveiw. Thus in Louoithnl's T^sc, :>2 Ala., •''•■'^••, it was licld that wlicitM draft was delivered by an employer to a clerk which he was to present for acci'iit- nnco and then return to his employer, and failtnl to return it, but frau(hdently cuii- verted it to his own u.se, he wa.s juilty of enil)ezzh'ment. So in New York, in People V. DaUoH, If) Wend., 581, it wa.s held thai where a tmveler ataiiiim handed a money letter to the bar-keeper to mail, and tlio bar-keeper, instead of mailing it, opened the letter anil kept the money, that he was jjuiltyof embcz/lo mcnt. So in People v. Nichols, JJ Park. Crim. Uep., 579; where a quantity of pijjT iron was delivered to the defendant, a common carrier, to transport by ciiiial from Albany to Buffalo, and on the way, at nijjrht, he secretly removed some from the boat, with a felonious intent, ho was held to bo guilty of embezzlemtMit. hi California the difficulties arising out of tluj Engli.ah doctrine have been met liy a statute which punishes the embezzlement of property entrustiil to another as wA\ as the embezzlement wluch comes to his possi'ssion by virtue of his employment. The Queen vs. Negus. (2 Cr. Cas. Kes., PA.) Embezzlement: " Clerl: or senaiit,''' 24 and 23 Vict., ch. 96, s-r. GS. The prisoner was engaged by the pro.sccutors to solicit orders for them, aiul w to be paid by cf)mmission on the sums received through his means, lie L no authority to receive money; but if any was paid to him he was fortliwi to hand it over to his cmployei-s. He was at liberty to apply for onl-r- wherever he thought most convenient, but was not to employ himself for any other pei-sons th.an the prosecuto*^. Contrary to his duty he applied for payment of a certain sum; having received it, he applied it to his own use, and denied, when asked, that it had been paid to him: IlehJ, on the above facts, that the pri,soner was not a "clerk or servant" within the meaniiij of 24 and 25 Vict., ch. 96, sec. 68. Case stated by the assistant judge of Middlesex Sessions. The prisoner was indicted for embezzling £17, as clerk and servant to Roape and others. Tlie prisoner was engaged by the prosecutors to solicit onlei's for thein, and he was to be paid by a commission on the smiis received through his means. He had no authority to receive money; but if any was paid to him he was forthwitli to hand it over to his employers, lie was at liberty to apply for orders [lil.A. devote li The . ''< ir any o control [Bovir. self wher Ec(j. Cr. C, THE gUEEN V. NEGUS. 151 wherever Iio tliou^lit most oouvenicnt, but was not to cini)loy liiiiisclf fi»r iv!iy other persons than tlio ])roseeutors. Contrary to his duty, he applied for payment of the above sum, and having received it he applied it to his own use, and denied, wlieii asked, tlmt it had been paid to him. The prisoner's counsel contended that the prisoner was not a clerk or servant within the statute, but the learned judge refused to stop the case, and directed the jury to find him guilty. The (piestion was whether, upon the facts stated, the prisoner WHS a clerk or servant, and as such rightly convicted of embez- zlement. Si'o 24 and 25 A^ict., ch. DO, sec. 08, ante, p. 29. Xo counsel a])j)eared fur the ])risoner. 7*'. J>\ Li'iois, for the ]irosec\ition: Ii<'(j. v. Bowers, 2 Law Kep., 1 C. O., 41, sonaewhat reseujbles the present case, and is an authority in favor of the prisoner; but there the commission iii'ent earrii'd on a retail trade for himself at a shop, and so could not he deemed a clerk or servant of the merchant who supplied coal for him to sell. [Bovii.i,, C. J. And here the prisoner might apply fen* orders wherever he thought most convenient.] So might the traveler in liey. v. Baily, 12 Cox Cr. C,. 50; ho was "vci'thelt'ss held to be clerk or servant of his employers. [i)i.A( Kiirn.v, J. For he was under their control, having to devote h'-^ whole time to the service.] The 1^ ulation that the prisoner was not to employ himself for any other persons than the prosecutors shows that they had control over him. [BoviLF,, C. J. Ts'ot at all. lie might go away to amuse him- self wherever he likv d.] lieg. V. Tite, Leigh «fc Cave Cr. C. ; Jier/. v. Turner, 11 Cox. Cr. C, 551, were also cited. BoviLL, C. J. 'i le only question submitted to us is whether, on the facts stated, the prisoner was a " clerk or servant," and, as such, rightly convicted of embezzlement. The learned assist- ant judge of the court directed the jury to find the prisoner guilty, subject to this point being raised. Generally speaking, I should say that the question whether a person is a clerk or servant depends on so many considerations that it is one to be left to the jury, as it is extremely difficult for m E\ '.- ■■ I 152 AMERICAN CRIMINAL REPORTS. the court to coine to a satisfactory conclusion upon such a mat- ter. Much depends on the nature of tlie occupation in which the individual is en<,'aged, and the kind of employment, lint we have to see if thtri was enough evidence to show that the pris- oner here was a clerk or servant. I think that that fact is not sufficiently made out. What is a test as to the relationship of master and servant? A test used in many cases is, to ascertain whether the prisoner was hound to obey the orders of his em- ployer, so as to he under his employer's conti-ol, and on the case stated, there t to cases where a man is a mere agent, but where the relationship of master and servant, in the popular sense of the term, may bo said to exist. Ein.jo, C. J., in Reg. v. Bowers, Law Hep. 1 C. C. R., 41, at p. 45, says the cases decide " that a person who is em- ployed to get orders and receive money, but who is at liberty to ■;3 QUEEN V. FOULKES. 153 get those orders and receive that money when and where he thinks proper, is not a clerk or servant within the meaning of the statute." I think that is perfectly good law, consistent with all the authorities, and, applied here, it shows that the prisoner WIS not a clerk or servant within the definition there given. Bi.ACKuuKX, J. I am of the same opinion. The test is very much this, viz., whether the person charged is nnder the control and bound to obey the orders of his master. lie may be so without being bound to devote his whole time to this service; but if bound to devote his whole time to it, that would be very strong evidence of his being under control. This case differs in nothing from the ordinary one of a commission agency, except in the sole statement that the prisoner was not to work for others. But I do not think that circumstance, by itself alone, enables us to say that he wns a servant of the prosecutors. Akcuibali), J., concurred. -j-^' IIoxYM.vx, J. I agree. The question was not left to the jury to decide, and I cannot satisfy myself that the relationship of master and servant existed between the prosecutors and the pris- oner. It does iH)t api)'jar that the prisoner was hound to obey every single lawful onier. Possibly the masters might tell him to go somewhere, and he might justly refuse. Conviction quaslted. Attorneys foi* the prosecution, Allen tC' /Sou. QUKEX vs. FoL'LKKS. (2 Cr. Cas., Res. 150.) Embezzlemicxt: Chrk or seiranf. The prisoner's father wiis clerk to a local boaixl, and held other appointments. Tlie prisoner lived witli his father, and assisted Iiini in his office, and in tho business of tlie boiu'd. In his fatlier's aljsi>nee, the prisoner acted for hira at the meetings of the board, and wlien present, he assisted liim. The pris- oner was not appointed or paid by the Iward; and there wiis no evidence tliat he received luiy salaiy fi'oni iiis fatlier. The board havin;; occasion to raise a loan on mortgage, tlie prisoner inanafjfed the bnsiness tor liis fathl. 1,321)/. "Producing 89/. per annum. "Dear Madam: The above is an amended scheme of invest- ment, which I trust you will find in accordance with your wishes. "Xo doubt it will be better to take advantage of present lower quotations, wherever prices have been af"3Cted by late events, and I will proceed to act immediately on receiving your instructions to that effect. "I remain, dear madam, yours truly, " Mrs. Spooner, etc., etc. Y. Cukistian." Mrs. Spooner assented to this, and on the llth of Xovemljcr, 1872, the prisoner purchased on her account, but in his own name, from one Wrenn, a jobber on the Stock Exchange, the three sets of securities mentioned in the contract note of the litli of November, 1872, hereinafter set out, and sent to Mrs. Spooner the following letter and contract note: Fob. 3. Fob. 3. Apr. 10. Apr. 10. Apr. 10. Apr. 17. QUEEN V. CHRISTIAN. 159 "11 Royal Exchange, London, E, C, " Ifovemler 14, 1872. "Dear Madam: 1 have much pleasure in inclosing contract note for "200/. Argentine 68 @ 96 " 200?. Austrian Sil @ %■>% " $2,500, 5-20, 1867 @ ^3% which I have every reason to believe will pay you very well, tak- ing' into consideration their stability. I hope to get the Japa- nese to-morrow. liailways — Great Northern, Great AV^estern and Caledonia — are all expected to give good dividends, and I think you will do well to procure a few. The markets are on tlie rise in consequence of the bank rate not having been altered. " I beg to remain, dear madam, yours most obediently, " (Signed.) Y. Chuistian. "]i[rs. Stooner," " London, Xorcmher 14, 187L'. "Sold to Mrs. SrooNER. L. s. d. " 200/. Arjrentino, 1SG8, @ 96, net 192 ' ' 200/. Austrian Silver O'i) (v)}.i 131 " S2,r,00, 5-20, 1867 @ 9;3325 18 9 2,175 10 ;{ Feb. 3. Bychoquo 500 Apr.lO. By " 600 Apr.ll. By " 100 Apr.lH. By " 1^6 Apr.23. By " •• •• 500 1,886 2 6 Balance 282 13 9 2.175 16 3 Accompanied by tlie following letter: " 2 Pem])kuton Teimjace, St. John's Park, " iTow. ijth, i8y2. "My Dear Siu: — I inclose a statement of account, witli a cheque for the balance, \\hich I hope you will find correct. When I know the amount of the Japanese, I will immediately forward you a cheque for the same. With my best thanks for all your kindness, I am, yours faitlifully, " Y. Chuistian, Esq. (Signed) M. A. Si-ooxek." And also by cheque for 289Z. 13s. 9(?., payable to the prisoner or order, and the prisoner, on the 10th of Xovembor, acknowl- edged the receipt of the cheque and account, and obtained pay- ment of the former. On the 27th of Xovember, 1872, the prisoner wrote the fol- lowing letter to Mrs. Spooner: Y. CnRisTiAx, it 1 1 T> •T' - „, , , oi n 1 11 IvovAL Exchange, Stock and Share Dealer, ' Bankers- " LoNDON, E. C, Bank of England. " November S^th, 1872. " Dear Madam: — I inclose a contract note for 300Z., Japanese bonds at 112 — 336Z. " This 300Z. was offered to me in one lot, and I thought myself fortunate in securing them for you, and had no doubt of your ratifying what I have done. These Japanese securities are really j! a iirst-rate them at tl dilatorinesi to get then "Mrs. S And incl "Sold to M "Stocl "11 R( "Bankei The pris from Mr. "" It was r one lot; bii On tlie s ing letter: "MyDk note for tl payment. " I am w have purch " My SOI if you will 'Xicliolas " Again And alsc and the pri the proceet On the lowing lett Y. Cm Stock and !■ Banl Bank of "Dear Vol. I QUEEN r. CHRISTIAN. a first-rate investment, and will pay 8 per cent. I have got them at the lowest price of the day, and indeed, my apparent dilatoriness in the matter has been caused solely by my anxiety to get them cheaper, if I could. Yours truly, "Mrs. Si'ooNKU, etc. (Signed) Y. Chkistian." And inclosed is the following contract note: "London, Nov. zyth^ 1872. « Sold to Mrs. i\[. A. Spooncr 300^., Japanese @ 112 — 330Z. 0«. Od. "Stock and Share Dealer, [Ilevenue] "11 Koval Exchange, E. C. Y. Chkistian. "Bankers — Bank of England. [Stamp.]" The prisoner had on the same day bought in his own name, from Mr. Wrenn, three Japanese bonds at 112. It was not true that the 300?. was offered to the prisoner in one lot; but the prisoner asked Mr. Wrenn for these bonds. On the same day Mrs. Spooner sent to the prisoner the follow- ing letter: " 2 PEMnKiiTOM TiciiKACK, St. Joiin's Pakk, " Nov, 27th, 1872. " My Dkar Sir: — I have just received your note and contract note for three Japan shares, and inclose a cheque for 33G/. in payment. "I am much obliged to }ou, and perfectly satisfied that you have purchased the three shares for me. " ilv son Frank will be bearer of this, and I shall feel obliired if you will kindly give him any information you can about the 'Nicholas Ilaihvay,' and the 'Share Investment Trust.' "Again thanking you, in haste, " Believe nie, yours faithfully, (Signed) "M. A. Spooner." And also a cheque for 336?., payable to the prisoner or order, and the prisoner received and indorsed the cheque, and received the proceeds thereof. On the 29th of November, 1872, the prisoner wrote the fol- lowing letter to Mrs. Sponer: c* 1 101, T^' 1 "11 Royal Exchange, stock ana Share Dealer. ' Hankers- " LONDON, E. C, Bank of England. " Noveinbcr 2gtk, 1872. "Dear Madam: — I have to acknowledge the receipt of your Vol. I.- 11 '!l!,.' r})lied to the prisoner for them; and the prisoner, on one occasion, told lier that the broker or jobber was in his debt, and that the broker or jobber knew that when he delivered the bonds the j^risoiier would deduct from the price the amount of such debt. On the Sth of August, 1873, the prisoner offered Mrs. Spooner a com- position, a!id informed her he was tiling a petition for liquida- tion. LTltiinately, the United Stales bonds and the Japanese bonds, having been carried over from time to time, by the order of the prisoner, without the knowledge of Mrs. Spooner, were sold by the orders of the prisoner. The pv'soner never paid the person from whom he bought tlie United States and Japanese bonds, for the same, and the clieriiies for 280^. 13s. dd., and 33(5^., were paid into the prisoner's accoiuit, and the proceeds of such checpies aj)plied by the prisoner to liis own purposes. At the close of the case for the prosecution, it w.as contended on behalf of the prisoner, that IVIrs. Spooner's letter of the 27th of November, 1872, did not constitute a sufficient direction in writing to apply, pay or deliver the cheque or its proceeds for any purpose or to any person specified in such direction, within the meaning of the statute. The learned judge left the case to the jury, but reserved the QUEEN V. CHRISTIAN. lei if aforesaid (peation for the opinion of the court of criminal ap- peal. The jury found tlie prisoner f^uilty. Tlic question for the opinion of tlie court of criuiiniil appeal was, wlietlier JSCrs. Spooner's letter of the iiTth of November, 1872, cou])le(l with the ])risoucr's letter of that date, and the contract note for the Jap- anese bonds Avas, under idl the circumstances of the case, a suffi- cient direction in writing within the statute. Mcteaf/d, Q. C. {Collins with him), for the prisoner. The section under which the prisoner was indicted was passed origi- nally to meet the case of Hex v. Wanese at 112, 33(5/.," and was signed by tliu prisoner. This contract note and the letter in which it was in. closed arc both ambiguous. They might mean that the prisoiier liad bought the bonds and had got them, so that there was notli- ing to do '-'it to hand them over to the prosecutrix on payment by her of the price, and in this case, her letter in reply, " I have just received your note and contract note for three Jajian shares, and inclose a cheque for 330/. in payment. I am perfectly satis- lied that you have purchased the three shares for me,'" iniglit well mean, " Whereas, you have bought and ])aid for the bontU, you will receive this cheque in payment to yourself." Ihit tlie prisoner's letter might abo mean that he had bought the bonds in his own name, but that they were not yet handed over because not paid for; so that it was necessary to get money to j>ay for them. And if this had been explicitly stated, then the prosecu- trix's letter in rej)ly would have meant, " I send you a chc(|no which you will either hand over to the seller of tho bonds, or obtain payment of it, and hand the proceeds or your own cheque in lieu of tlicm to the seller." And upon this view the oftcnse charged would clearly have been committed. If, then, either construction of the letter is fairly possible, must we not read it in the alternative, as saying, " You do not Btate whether you have paid for the bonds; if you have done so, kee]) the cheque, if not, then apply the money in payment to tlie seller, so that you may get the bonds, and hand them over to me? " And so reading the letter, and applying it to tho state of facts that really existed and were known to the prisoner, it he- came a direction to apply the cheque or its proceeds in payment for the bonds, and the prisoner was, therefore, rightly convictuil. Blackburn, J. I am of the same opinion. Before tiiriiing to the words of the statute, look at the facts. Tho prisoner, being an agent within tho meaning of the statute (for as to that no question is reserved), consents to act on tho terms contained iu QUELN V. CHRISTIAN. 105 his firi?t letter (»f tlio 12tli Xovembi-r. He accortlliiyly receives iiistriK'tiiiiis to buy, nml viirious ^iecurities are bought. It seems iiiiniiiteriiil to consider \vlietlier any ])rlvityof contructwtis estab- lished between the jjrosecntrix and the sellers. There is at any rate 110 doubt that the prisoner must liavo made himself i)er- goindly liable to them, and therefore he would have a right, after imviiK' for shares, if he did pay, to refuse to hand them over till lie was repaid. He would also liave a right to rcfjuire cash be- foreliaiid, so as to keep him out of advances. lu this state of things, lie writes ids letter of the 27th Xovember, and the j>rus- ccntrix her answer of the same date. Xow, looking at the facts ami writing down what seems to liave been her meaning as to the cheque, I have no doubt as to what it must be: " Inasmuch as there is a sum of 330Z. which I have to pay to get the Japan- cic Iwnds, get the ])roceeds of the chefjuo in the way most cou- veiiieiit to yourself and pay for the bonds." I think if the pris- oner luul handed over the checpie itself, or handed over the actual notes received for it, he would have been within his instructions. I think ho would have been so also, if he had paid it into his own hank lomt jide, for the pi.rj)ose of meeting a cheque of liis own inven to the seller, although a hundred things might intervene to prevent the cheque being actually met. I think, then, that the prosecutrix's letter was a direction to ai)ply the cheque or its proceeds to getting the bonds for her free from any lien or claim on the part of the seller. Turning, then, to the statute, and applying its words to the facts of the case, we find tluit the prisoner was an agent and ho received a direction in writing to apply the cheque or its pro- ceeds to a certain purpose. And the jury liave found that in violation of good faith, and contrary to that direction, he applied tliem to his own use. I have no doubt, therefore, that he was rightly convicted. V -1 * Lusii, J. The only question reserved is, whether Mrs. Spoon- or's letter of the 27th November, 1872, coupled with the pris- oner's letter of that date, and the contract note for the Japanese bonds, was, under all the circumstances of the case, a sufficient direction in writing within the statute. And looking at the course of dealing between the parties, I think the natural mean- ing of the prosecutrix's letter is: " If you have not paid for the .^ W IGQ AMERICAN CRIMINAL REPORTS. bonds, use the clieque or its proceeds to imy," and therefore the prisoner was rightly convicted. Pollock, B., and Honyman, J., concurred. Conviction affirmed. Attorneys for prosecution, Wilkinson dj Son; attorney for prisoner, li. King. Cory vs. State. 5oGa.,236.) EiinE?zLE.\iEXT: Foreign coiyorulion — Mistake in transcript of imlictment, A statute against embezzlement from " any coiporato body in this state " does not extend to or iaiehuie foreign corporations doing business in the stiite ■without authority of law. The transcript of a count in an indictment before the supreme couii appw- ently sho\vuijj that the embezzlement was charged as done '" with " in.^tcail of " without " the consent of the owner, the court must regard the count us fatally defective. Jackson, J. Tlie defendant was indicted as cashier of tlie branch office of the Frcednian's Saving and Trust Coin});iny, in Atlanta, Georgia, for the ofi'ense of embe^'.zlenient in secretiiii,' and stealing over $8,000 of money deposited in said liraneh of- fice, and the indictment was framed on section 4121 of the Code. The question for our review is, whethe;* tlie cashier ol: the branch office of said company in Atlanta is subject to the pc'ialties and punishment prescribed in that section vi the code, and the answer to that qtiestion depends upon the answer to this: was that branch bank or branch office a corporate body in thi? state in the siinse of the statute? 1, 2. The Freedman's Saving and Trast Company is acorjiora- tion chartered by congress and located in the city of "VVasliiiigtoii. The charter gives it no power to establioh a branch anywhere, Xo act of congress, outside of its charter, gives it such power, nor lias the legislature of Georgia granted it the franchi.se to lo- cate a branch for the transaction of its business within the lim- its of this state. Its existence as a corporation, created by con- gress and located in tlie city of Washington, will be recognized by our courts; ]}ut its existence as a corporate body, located any- CORY V. STATE. 1G7 where in Georgia, must depend upon the power granted in its charter by congress, or sonic otlier constitutional act of congress, or some statute of Georgia. We have been cited to no such hvw, iuui we know of none. It is not the j)ol!cy of the state to en- courage tlie location in our midst of the branch offices of foreign corporations, and the criminal statutes should not be so enlarged by construction as tu embrace such branches located here witli- out authority of law. Section 421 of the Code was designed to ]>rotect our own corporate bo consent of the owner." This may or may not be true. It has not been verilied to us in the only way it can legally be done, by the suggestion of a diminution of the record on ur Ijcfore the calling of the case. Code, section 42S2, ride !>. Our oidy course is to adhere to the law, and to rule on i»rinciple. It may sometimes work seeming injustice; a departure from it would open tlie llood-gates uf speculation, and unsettle the entire jtracticc of tlie court. In this case any wrong done can be but tem])orary; the party can be tried again, and if found guilty on the second count i)roperly framed, he can be punished according to law. Let the judgment be reversed, and a new trial granted. EX PARTE JOHN WHITE. 169 I Ex Pakte John White. (49 Cal., 4:33.) EXTHAUITION. I- „,litia's from justice. Tlio jfovonior of this state has no authority to suiTCiuler a fugitive who has coin- iiiittod a Clinic in iiuotlin* state, unless jiuheial proceedings have been coiu- ineiuv.l 11);. ■■ 111 for the crime in the state iii wliicli it was committed. jhrci't of J injitiifx from justice. A person cannot be anvsted here for a crime comrnitved in another state, unless a proseciuion has been rommenci'd, ami is pending against him for the alji'uvd crime in the state having jurisdiction of tlie otl'ense. Onintiliili uial',!;/ oj law concvrniwjfui/itires from justice. The comi sav. -.vithont passing authoritatively on (he point, that '■ j reason is perceived why a law allowing fugitives from justice fleeing i om another state to be an-ested hero and delivered up to ti\c authorities of the state having jurisdiction of the offense, is not constitutional. On the 18th chiy of Jtimiaiy, 1875, a warrant was issued by tlie chief justice of the 8iii)reine court, for the arrest of the peti- tioner "White. The warrant was issued on an alfidavit of Daniel Cuftby, wliit'Ii alleged tliat, on or ahout the 1st day of December, 1ST4:, at the city of Jjoston, state of Massacliusetts, White stole three gold watches, of the value of 8300, and that, to escape pun- ishment, he lied from the state of Massachusetts, and had taken refuge in the state of California. The other facts are stated in the opinion. CiciM'KETT, J. The j)ctitioncr lias been brought before us on a writ of hahuns ('orj)ifts', and it a])pears from the return of the chief of ])olicc, that he is hold under a. warrant of arrest issued liya magistrate having authority to issue such writs. It further iijipears that there was ])resented to the magistrate, before and at the time of issuing the warrant, an atllthivit made in this state, to the eilect that the petitioner had committed the crime of grand larceny in the commonwealth of ]\[ass'.;chusetts, and is a fugitive from justice from that state. I'l.t it was uot shown, by the alH- (lavit or otherwise, that a prosecution is pending or has ever been instituted in Massachusetts againsl the petitioner for the alleged Oil't'IlSC!. Section 1548 of the Penal Code provi'les that " a person charged in any state of the United States, with treason, felony, or other iro AMERICAN CRIMINAL REPORTS. crime, who flees from justice, and is found in this state, must, on demand of the executive authority of the state from ^vliicli he fled, " be delivered up hy the governor of this state." Under this section, it is evident the governor lias no autliority to sur- render a fugitive, unless he has been '"charged" with crime in the stat(! from which he fled. A ])rosecution must have been in- stituted there, before the governor can act. Section 1549 pro- vireceding sections provide what steps shall be taken for the detention of the fugitive until a requisition shall be made for his surrender by the proper author- ities of the state from which he fled. The first point for consideration is, whether this case comes within the provisions of the statute, and we are convinced iL dues not. It was not intended that a person might be arrested here upon an aflidavit or information charging him with the coniniis- sion of a crime in another state, when no prosecution has been commenced there, and may never be. lie is not a fugitive from Justice in the sense of the statute, unless, at the time of his ar- rest, there bo a pending j)rosecution against him for the alleged crime, in the state having jurisdiction of the oll'ense. Section 1550 tends strongly to supi)ort this view when it ])rovides tliat at the examinati(jn before the committing magistrate, '' an e.\- emi>lified copy of an indictment found, or other judicial ])roceed- iiiirs had a repeated to her upon her hesitating and asking the rpicstio/i again, and then and only then, did she make the confession. The confession went to the jury without objeetiun, and her counsel requested the court to charge, " that in order to make her confessions evidence against her, it must appear to the satisfaction of the jury that such confessions were nnule voluntarily, without being induced by another, by the plii,'htest hope of beneiit, or the remotest fear of injury." The court refused so to charge, and this was the main ground of the motion for new trial, which was refused, and error is assigned Uv ':*]' 172 AMERICAN CRIMINAL REPORTS. thereon. The Code declares, "to mixlx a confession .adniigsible, it iruist liavc been lUiule voluntarily, without bcini^ induced by another, by the sliglitest hope of benefit, or reniote.st fear of in- jury." The rerjuerit is, theref(jre, in the very langnai^e of the Code, and sliould have been (^iven to the jury, unless the defend- ant forfeitf'd lier ri<;lit to the charge by the failure of the counsel to ol)iect to the co.ifession, or to move to rule it out, The('.(»urt below put: bis refusal uj)on this ground, and the naked fjucstiou is, Sliould a conviction for murder stand upon illegal evidciieo because it went to the jury without objection, when the court'^i attention was culled to it, and he was ri!(j nested to charge tlu; law thereon, and wholly failed to do so? We thiidc that it should nut stand, but that tbu utdiappy and doubtless guilty girl, sliould have another chance for her life, and if convicted, should be coii- vi(!ted ae('(»rding to law. A motion to nib; out the evidence would have be('n the safer and better practice; but if admitted, we think the law should go to the jury with it, that it might have only the weight to which it i-: eiititk'd. The girl here evidentl}' hoped that she would make sonicthing by her confession, for the great man of the, ccmpany, in her eyes, the constable, assured her that she should not li(^ hurt, aft(;r she had expressed her ajtpreluMisioiis that they would hurt her. J»esire 't was certain that such ]ioj)es were held out to induce the confession, and in such case the counsel might well prefer not to rub; out the evi- dence, as it was already in, but to ask the instructions of the court thereon. At all events, the circumstantial e\ Idence, with- out the confessions, would scarcely justify the hanging of this defendant; aii\ Tin- Sfiifi', 47 id., 572; and Nathoih Frmih v. 77irolve into ujid entered the store of J. 1). Freeman ^ Co., wliicli said iirm Wiis composed of J. D. Fi'ee- niaii and Fpliraim Oates, and in whicli said store merchandise of value WHS and is kept for use, sale or deposit, with intent to steal." "On the trial," as the 1)111 of exceptions states, " the state introduced .f. \). F'reeman as a witness, who testified in substance as f(»llows: The iirm of J. D. Freeman *fe; Co. is com- posed of Kphraiui Oates and myself. We curry on a family grocery and confectionery in the town of Ahbeville, in said county, and keej) ^oo^ liu«l Ikxu taken there- ironi. 1 estimated that the money, with the vuhie of the o;oodti lost, anion 11 tetl to alM>ut i^W^t. A few days afterwanls, I sued t»ut a warrant aijaiiist the di'fendant, and, in company Aith the sher- illaiid one A. W. Stokes, went to the house oocujued by the de- fendant, who was then in tlic employment «»f said SIvkos, and was li\ \\\Stokes as witness, who testified as foHows, in substance: "On seeing the defendant in possession of cigars and tobacco, my suspicions were aroused against him, and I thought that he had something to do with, or knew of the defendant ^ sniall house iiiiUi certain giiw in the ( after he hai to the defei to liis lious( from the fi» liousc, and any of his ] jroods. !)*■ Freeman, a arriving at we found, ( (Tiirs and t« remarked t (rot the de.'i hiiu where that he g(»t Calloway he got thei paid some stated that well, heart open, wen tobacco, ai Freeman about halt and starti were at tli me nearly stolen the bacco, thi to do witl thing to s Defciidan hole, ai.i( this was 1 cigars aui NEWMAN r. STATE. 175 knew of the burglary whicli had l)ccn recently committed. Tho (lefeiidtuit was in my emph^y at the time, and was living in a gniall liousc on my promises. I communicated to J. 1). Free- luaii certain facts relative to some cigars and tobacco which I giiw in the ruceeded to confess, that his brother bored tho hole, and fcn-ced open tho door, and he watched for him while this was being done, that they entered tho store, and ho took the cigars and tobacco, and his brother took the money. The de- u,. u« m 17fl AMKinCAN CIUMINAIi UKrwiri'S. fcndiitit movcfl tlio court to excliido tliis confivsion; tlio court overruled IIk; motion, iukI tlio (lofiiiultuit (!.\('(!i)t(Ml. Oil (•rohs-cNMmiiiiitioiijSaitl witiKis.s tcstilicd uh followH: "Tim (Icrciidiitit is ii iKi^To hoy ubout ci^litct;!! y«;!irH of ii^^c, and of only ordlnury iiitclli^fitiit'o. I w.'is pnisciit, iiiid liciird tlKscoii. vorKtitioti wliicli t(H»lv jdiici) hotwiitiii Hiiid Frut'inaii mid tlio de- feiidaiit. I tliink tlic; laii;fiia<^(i addressed by said Kreeiiiaii to defciiduiit, to wit: " Vctii an; very yoim;; t<» lii; in siicli a diili. ciilty as tins; tli(!r(! iimst have, heeii soiiio one with you who U older, and I, if in your ])laee, would tell who it was; that it was not ri^dit for him to sulVer tlic! wlioh; lUMialty, and let some one who is <;uiltier i;o free; that it nii^dit <;o lighter with liim," wiw iis(;d 1»efore defendant had mad(! any ('niifdssiou at all, and hefoic lie liad aeluiowliMli^ed anythiii<,'. 'l'hed(!feiidaiit then moved Ihu coiirl t<» e.\elu«l(! such and (jvi-ry (ioiifessioii whi(di had heeii ad. inittcd ai^'ainst him; the moticiii was ovurruU'd, and the defend- ant ex(^e|)ted. I'lio witness rreeinan stated, on cross-(!.\aiiiinatioM " that lie liad married tin; niece and ^raiid dau;;hter of tin; j»residin<^ jiidi,'(!,'' and tli(! (htfeiidaiit tli(!reii|ion, " l»y his counsel sui^i^estxid the iii- coiii|)('teiicy of tlu' judi^e to try tlu; (rase, on acxrount cd' his ri'la- tionshi|> to one of the ])arties, and nioviid to discontiniu! the trial." The court <»v(!rriiled the motion, and the defendant excepted. After eoiiviction, the def(!iidant renewt-d his (d)jection to tlio eoin|)(!teiicy of the presidiiii^ jinl.i^(% and excepted on that ground to the sentence and iiidii;ni(!iit of the court. ir. (\ (fdtiK, for tilt! prisoner. Jh'ii,. (/(tn/iicr, AttoriKsy (Jeneral, cDiitrd. J'kok, (/. .1. I'lifore any confession can he received in evidcnco ill a criminal case, it must ho sh(»wn that it was viduntary. 1 (Jreeiil. Kv., ^ 'Ji!>. A cnnfessi(»n (d)taiiied from an accused jiersoii, in the custody (d' his ac(!users " hy tlu; ilattery (d' liojie, or the torture of fear, is not, in C(Mitem])lation of law, V(duntary, and should not her;- eived asevideiiceof <^uilt, and no credit oiij^lit to he f^iveii to it. The hooks are full (d" examples and instances, showiiii^ us in what cases confessions have heen lield to he iiiad- missihle, as not voluntarily made. Thus, where the coiistaldo ■who arrested the prisoner said to him, " it is no use f(M' you to deny it, fur there are the man and hoy who will swear they saw, m^ : \T NKWMAN I'. STATK. 177 irt 'ho von ois(»n to hor mistress, with In- toiit to iiiiinler, iitid the surgeon in iitteudiiiieu had told lior, "It would lie lji;tt(!r for her to Hj)eak the truth," it was held that her confession, thereupon made, was inadmissihle. So, a^^ain, where the i)ris(jii(;r'ri superior in the post olliee said to the prisoner'^ wife, while hcsr husband was in custody for oi)enini; and detaiii- iiirisoner, had iinythiiig to say as to his assisting him in the diiliculty, to do so. The prosecutor, who claimed the articles — the cigars and tobac- co found in the jirisoner's box — said to him at the same time: "You ai-e very young to be in such a dilHculty as this; thero nnist have been some one with you who was older, and 1, if iu yoiu- i)lace, would tell who it was; it is not right for you to suf- fer the whole j)enalty, and let some one who is guiltier go free, Vol,. I. — 12 u«ji''' ii M'. m 4 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 11.25 Ufi Uii |22 ■» 110 12.0 6" m* U 11.6 Photographic Sciences Corporalion ^^^ 23 WIST MAIN STRin WIBSTIR,N.Y. 14910 (716) •73-4903 1 ITS AMERICAN CRIMINAL REPORTS. that it might go lighter with him." I have no hesitation in saying that confessions obtained under such influences ought not to be regarded as vohmtary, and shouhl be rejected. AVhen it is considered that the prisoner is a negro boy, about eighteen years old, of ordinary intelligence, and necessarily ignorant, suddenly arrested and in custody, charged with a grave offense and sur- rounded by the prosecutor and others, who hrisoner to put his foot in the tracks if he had persisted in refusing to do so. The refusal and the result of the comparison made by the officer between the track and the pris- oner's shoes would have been competent. There Ls no error. Judgm.eat affirmed. Let this opinion be certified. Judgment affirmed. STATE p. SCANLAN. 185 State vs. Scanlan. (58 Mo., 204.) Evidexce: Question of fact — Cupaciti/ of child as witness. A girl whom the court by inspection dotonnincd to be between nine and ten years old, beinj? offered an a wtne.ss, wa-s objected to. Being examined as to her qualifications, she appeared veiy nervous and frightened, and said she could not tell her age, and did not know the nature or obligation of an oath, or what the consequences would be of swearing falsely. On a reex- amination she said she wa-s the datighter of the resiiondent, knew her prayers, could fCiul some, Ijelieved in God, and thought it wi'ongto tell lies: Jlihl, that she was properly received as a witness. The question of the competency of a witness is a question of fact, to be deter- mined by the trial judge Ijy pei-sonal inspection and oral examination, and his decision is not subject to revision. Lewis, J. The defendant was convicted of mtirder in the first (Icree, committed upon his wife, and sentenced to death. His appeal to this court brings us hut one question for review. This appears in the following extract from the bill of exceptions: "The state then ofiercd as a witness, in behalf of the prosecu- tion, Mamie Scanlan. Upon being thus presented, the defend- ant objected to her being sworn and examined because of her tender years; whereupon she was examined by the judge respect- ing her qualifications as a witness; and upon this examination, the child, being much frightened and scarcely able to speak, stated to the judge that she could not tell her age, that she did not know the nature or obligation of an oath, nor what would be the consequences of false swearing. The answers of the child to the (piestions of the judge were invariably in monysyllables, yes or no, and uttered in a tone scarcely audible. Upon the first exam- ination, the judge refused to have her sworn. Upon a reexamin- ation, however, the court, from inspection of the witness, judged lier to be betwec.i nine and ten years of age; and having Y)ar- tially recovered from a friglit occasioned by surroundings en- tirely new to her, the judge ascertained from her statements that she was the daughter of the defendant, that she knew her prayers, could read some, believed in God, and thought it wrong to tell lies. She further stated that she was present at the time her mother was injured by tlie defendant. And thereupon the judge directed the witness to be sworn as a witness in the case. To ^'ilVf ISG AMERICAN CRIMINAL REPORTS. II it which decision of the court, allowing said witness to he sworn, the defendant, by his counsel, then and there excepted." AV^e find here nothing which by any rule of law or jjractice will permit us to interfere with the verdict. The ruling uf tlio criminal court embodied no proper subject for appellate i^evii^ion. The capacity or incapacity of the child as a witness, in certain essential particulars, was a question of fact which the judge de- termined upon personal inspection and oral examinution. If any principle of law had been declared by him, as that, althuugli found inca))able of discriminating between truth and fajj^ehuutl, the law made her, nevertheless, a competent witness, that might well be brought here for review. Ihit I can find no case iu which it is held proper for an appellate court to review the find- ing of fact. The contrary rule is declared by all respectable au- thorities. No hardship necessarily results; for if the judge should chance to err in his conclusion, the jury hold a powerful corrective in their right to pass upon the credibility of the wit- ness, as tested on the stand by the usual appliances. But aside from this view — with which, were not a human life involved, we might easily dismiss the subject — we cannot discover any reason to doubt the entire propriety of the court's permitting the witness to testify. The history of criminal procedure in this and the mother country abouiuls in illustrations of a judicial care which seeks to secure, on the one hand, whatever pertinent testimony may bring a guaranty of conscious moral responsibility, and on tho other, to adniit none that may be offered without it. Distinc- tions and general rules have assumed various forms; but tlic spirit of all, as applied to children of tender years, appears in the simple formula of our own statute. The rule (Wagn. Stat., 1374, § 8) excludes merely " a child under ten years of age, wlio appears incapable of receiving just imi)ressions of the facts re- specting which they are examined, or of relating them truly." We can discover no token of any such incapacity iiv the final answers given to the judge by the witness in this case. The course pursued on the occasion was eminently proper. There is a practice sanctioned by time-honored precedent, under whicli, when a child is found too young fo testify with a ])roper sense of responsibility, the trial may be postponed until the witness shall have been suitably instructed. This, however, has been I ■.'«^ DANIEL r. STATE. 187 criticised, as like " preparing or getting np a witness for a par- ticular piir]iosc." In the present case, even that objection dis- appears. AVhile the child was so laboring under nervous agita- tion from the novelty of the surroundings as to give unintelli- ble or absurd answers, she was not permitted to testify. The court merely waited for a natural recovery of mental equilibri- um, wliich should permit the true capabilities of the witness to appear. ISfo sign was visible then in her examination that she vas incapable either of receiving just impressions of the facts about which she was to testify, or of relating them truly. "We can find no error in the record. The judgment is affirmed; the other judges concur. {' Vi ■ mi Daniel vs. State. (55 Ga., 222.) Evidence: Memoramlum. Where a witness refers in his testimony to a niomoranih-.m as showing a fact uivol vod ill i\\k issue, and states that ho has such memorandum in his pocket, it is en-or for tlie court to refuse to compel tlie witness to produce the mem- orandum. "Wakxer, C. J. It appears from the evidence in the record that the defendant claimed an interest in the bale of cotton alleged to have been stolen by him; that he took it publicly in the day time from the gin-house where it was ginned; that he raised the cotton; that the extent of his interest in it depended on the settlement of the accounts between him and Reid. The county court erred in not re(]uiring the witness Ileid, to pro- duce the book of account against the defendant, which he ad- nutted he then had in his pocket, inasmuch as he referred to that hook of account in his testimony, as containing a statement of the defendant's indebtedness to him. [The rest of the opinion is not considered of sufficient importance to be given.— Rep.] XoTE. — So in Duncan v, Seelei/, 34 Mich., 3G9, the court say: "On the trial, the plauitiff, being on the stand, was questioned by his counsel as to the time . when lie was at the place of the alleged sale after the sale was made; it being dci;med important to show that he was there on a certain day. Plaintiff in reply WIS [t'h 188 AMERICAN CRIMINAL REPORTS. stated tlint ho could not state positively without looking at soiuetliiiif,' to ivficj-h his memory. And after professiny to look, ho stated further tlial wliiit he li;;(l looked at did ret'resli liin memory. He wiw tlien called upon by det'endunt's (uini- Bel to produce the meuioranduui at whieli he hatl looked, l>ut the counsel furtlio pliuntiff olijected, and tlie court sustained the olijection. ^\ c thifik tliis wns I'vro- neous. Tiie witness wii.s in eti'ect testifying, not from recollection, but from sdnu!- tliinj? whidi he professed to have in writing?; and the otlier party liad a rijflit to know wiiat tiie memorandum was on whieii he relied, and whether it iuul any Icj^itimate tendency to briufi: the fact in controversy to mind. It would be a dan- gerous doctrine whidi would permit a witness to testify from secret memoranda in the way which was permitted here. The error was not cured in this ca.s.' by the plaintitl' offerinj,' on the next day, on the conclusion of his testimony, to pro- duce the memorandum. The defendant wax entitled to see it at the time, in ordi-r to test the candor and inteiuxity of the witness; and tlio opportunity for ^udi a test mi},'lit be lost by a delay which nn unscnipulous witness might improve by preparing or procuring something to exhibit." A' "■H Bennett vs. State. (o2 Ala., 370.) Evidence : Conchtsion of fact — Itreleiant erulcnce — Warehouse. It is not competent for a witness who has testifii'd "that he slept in the sanio room with the prisoner the same right tliat the crime he is charjriMl witii was conunitted, that the witness was wakeful; that he saw the prisoner go to bed, and found him in bed the next morning when he woke up," totcstify further, that in his opinion the prisoner could not have gone out without his knowledge. This would be testifyhig to an inference of fact whidi it is the province of the jury to draw. In a prosecution for larceny, it is not relevant to prove that third parties, who had an opportunity to commit the crime, were of biul charact(>r, such tliird pailies not being witnesses, or charged with the crime, or otherwise con- nected with the case. A building roofed over, of which one side and one end are planked up, the other side and end being left open so that wagons could drive imder, used for storing cotton, and being enclosed, together with about two aci'cs of land, by a tight plank fence, nine feet liigh, the gates of which are kept locked, is a warehouse. Appeal from Circuit Court of Wilcox. Tried before Hon. John K. Henry. The appellants were convicted of larceny from a warehouse, under § 3707 of the Eevised Code. On the trial one of them sought to establish an alibi. A witness for the defense testified that he was very wakeful; that he saw Bennett go to bed in the BENNETT v. STATE. 189 Batne room in which witness slept that night, and found Iiim next morning when ho awoke; that there were two duors to the room; that these were the only openings, and that witness si 'pt near one of them. The defense then "oll'ered to show to tho jury, that in the opinion of this witness, defendant coiild not have left, or got out of the liouse without witness knowM-g it." The court refused this offer, and " would not allow said evidence as to the witness' opinion to go to the jury, and defendants duly excepted." In the further prcjgress of the trial, the defendants ofl'ered to show that the employees at the warehouse, from which the larceny \\m committed, but who were not witnesses, or in any way connected with tho case, or charged with the theft, "were of bad character." The court refused to allow this proof to be nuido, and the defendants duly exce])ted. The evidence showed that the building from which the cotton was stolen, was a covered structure, used for storing cotton bales. One side and end were planked up, and the other left open, so that wagons could drive under the shed thus formed, to load and unload. The structure, together with two acres of land connected therewith, was inclosed by a close plank fence nine feet high, the gates of which were kept locked. The court charged tho jury, if they believed that such was the character of the place from which the cotton was stolen, and that it was, i.ised for stor- ing cotton, it was a " warehouse " within the meaning of the statute. The cefendants excepted to the giving of this charge. The various ridings to which exceptions were reserved arc now assigned as error. John 2[vCasJdll, for appellants: The witness' opinion, on facts already given the jury, should have been allowed for what it was worth. 29 Ala., 244; 19 Ohio, 302. Johro ir. A. San/ord, attorney general, with whom J. T". KUpatt'icTc, contra: The court did not err in refusing to per- mit the witness to give his opinion. He was not an expert. 8 Watts, 400; 52 Mo., &21; Whittler v. Town of JSTeio JIam;p. shire, Am. Law Reg., vol. 14, 704. Brickei.l, C. J. It is peculiarly the province of the jury to draw deductions or inferences from facts, and it is seldom, if ever, permissible for a witness, not an expert, to give his mere opinion —an opinion which is a mere inference from facts -^ when the M |: m ; 1 " ■; j r ■'M *5 190 AMERICAN CRIMINAL REPORTS. jury are erpally competent as to such matter to form tlio opin- ion or deduce the conclusion sought from the facts, Tlie witness in this case was not an expert. The matter about which liis opinion was sought was, as to an inference from facts, which it required no peculiar skill, or particular fitness or experience to solve. Whether the event could have happei>ed, as to the occur- rence of which the witness' opinion was desired, was a matter of which the jury, guided by their observation and experience, and the circumstances of the particular case, were the best and only judges. The question asked went to the merits of the whole case. There is no appreciable diti'erence between the opinion asked for, and a request for the witness' opinion as to whether the alili was proved. The question colled for an opinion which was clearly inadmissible, and the court rightly refused to permit the witness to answer. State v. Garvcy, 11 Minn., 1C3; Don Crane and wife v. Toion of Northfield, 33 Vt., 121; Com. v. Cooley, 6 Gray, 355; Pelumourges v. Clark, 9 la., 16; Walkei' V. Walker, 31 Ala., 373. II. The court did not err in refusing to allow the defeiulants to show the " bad character " of those in charge of the yard and press. It is expressly stated that they were not witnesses, or charged M'ith the theft, or otherwise connected with the case. Such an issue was wholly foreign to that on trial. The proof offered would have needlessly incumbered the case, served tu dis- tract the attention of the jury from the main points involved, and have uselessly wasted the public time. It would be a dangerous jn-ecedent to .allow a defejidant to take up the time of the court in showing that parties living near the scene of the crime, or who liad an opportunity to commit it, were of bad character;- there often would be no end to the incjuiries tlius submitted to the jury, and the trial of criminal cases could there- by be protracted, sometimes beyond the term during which the Courtis authorized to sit. The evidence was inadmissible for another reason. It diil not show whetlicr the bad character was as to truth and veracity, or for honesty. If the proposed evi- dence was as to the character for truth and veracity, it would clearly be inadmissible, where the parties referred to were not witnesses or otherwise connected with the case, even if we could see that evidence of bad character for lionesty Avas admissible. III. There is nothing in the error assigned as to tlie charge of WRIGHT t'. STATE. 101 tlie court. Under the eridence in this case the structure men- tioned was a " warelionse " within tlie meaning of § 3707 of the Revised Code. Jlagaii et al. v. State, in MS. Besides this, the exception is a mere general exception to the entire charge of the court, not specifying the objectionable parts. In such cases, if any proposition in the charge is correct, the exception is not availivble. The judgment of the court below is affirmed. "WuiOHT vs. State. (50 Miss., G;32.) Evidence: Deposition hcfore committtng magistrates. Where the law roqiiircs a committing magistrate to take the voluntary confes- sion of the iiccused in writing, the- writing is the best evidence of what state- ment ho made on his cxiimination, ami wthout proof of the loss or destruc- tion of thi! writing, it is not competent to prove by parol what the accused said on sucii examination. PEYro:^ C. J. It ap])ears that the plaintiff in error in this case was convicted in the circuit court of Hinds county, in the second district thereof, of the murder of one Charles Ivelker, and sentenced to be hung, and hence the case comes to this court by \vrit of error. Various errors are assigned here in the record of tiie proceed- ings and judgment in the court below. But in the view we take of this case, we deem it necessary to notice only the tenth as- signment of error, which impeaches the correctness of the ruling of the court, in admitting oral evidence of what the defendant said in his voluntary statement before the justice of the peace, under tlie circumstances set forth in the record. It is provided in section 2S25 of the code of 1871, that in all criniiiuil cases brought before any justice of the peace, he shall take tlie voluntary confession of .:ij accused, and the substance of tlic material testimony of all the witnesses examined before him, in writing, and shall inform the Jiccused of his right to in- terrogate such witnesses. Which questions, and the answers thereto, he shall also reduce to writing; the said proceedings and testimony, so taken and had, the said justice shall certify and 4'm 192 AMERICAN CRIMINAL RErORTS. send up, togetlier with the bonds and recognizances of the ac- cused, and tlie prosecutor and witnesses, to the next term of the circuit court of the proper county, on or before the first day of tlie term. On the trial in tlie court below, one Daniel Murchison, a wit- ness on the part of the state, was permitted to testify as to what the accused had said in his voluntary statement before the com- mittin"' magistrate, in opposition to objections from defendant's counsel. Said witness testified that he believed he remembered the substance of said statement, but that other matters might have been mentioned in that voluntary statement which witness did not remember, as he did not ])ay any very marked attention to the statement, although he was listening to the examination. The said voluntary statement was reduced to writing, and signed by the defendant, and produced in court by the prosecution. As a general rule, applicable as well in civil as criminal pro- ceedings, the law requires the production of the best evidence of which the case, in its nature, is susceptible. This rule docs not demand the greatest amount of evidence which can possibly be given of any fact, but its design is to prevent the introduction of any which, from the nature of the case, supposes that better evidence is in the possession of the party. It is adopted for the prevention of fraud, for when it is apparent that better evitlence is withheld, it is fair to presume that the party has some sinister motive for not producing it, and that if offered, his design wonld be frustrated. The rule thus becomes essential to the j)ure ad- ministration of justice. In requiring the production of the best evidence applicable to each particular fact, it is meant that no evidence of a nature merely substitutionary shall bo received when tl < primary evidence is produceable. As the statute requires that the justice of the peace shall re- duce to writing the voluntary confession of the accused, and shall certify and send up the same to the next term of the circuit conrt of the pro])er county, on or before the first day of the term, the law conclusivehj jyf't'sit mes that if anything was taken down in writ- ing, the justice of the peace performed his whole duty, by taking down all that was material. In such case, no i)arol evidence of what the prisoner may have said on that occasion can be received. But if it be shown that the examination was not reduccl to writing, or if the written examination is wholly inadmissible, w^ WRIGHT V. STATE. 193 by reason of irregularity, parol evidence is admissible to prove what he voluntarily disclosed. And if it remains uncertain whether it was reduced to writing by the magistrate or not, it will be presumed that he did his duty, and oral evidence will be rejected. 1 Greenl. Ev., 259, sec, 227. Oral evidence cannot be substituted for any instrument in writing (which is not merely the memorandum of some other fact), the existence of which instrument is disputed, and its pro- duction material to the issue between the parties, or to the credit of the witnesses. One advantage derived from the application of this rule is, that the court acrpiires a knowledge of the whole contents of the instrument, which may have an effect very dif- ferent from a statement of a part. " I have always," says Lord Tenterden, in the case of Vincent v. Cole, M. & M., 2oS, " acted most strictly on the rule that, whatever is in writing shall be proved by the writing itself. My experience has taught me the extreme danger of relying on the recollection of witnesses, how- ever honest, as to the contents of written instruments. They may be so easily mistaken, that I think the purposes of justice require the strict enforcement of the rules." This rule, however, does not apply where the instrument in question is shown to be destroyed or lost, or where the party wlio relies upon it is otherwii^e incapacitated from producing it. In the case under consideration, tlie reconl shows that the vol- untary statement of the accused was taken in writing, and that heing the primary and best evidence of what that statement was, should liave been produced, and the oral evid'.uce of the witness as to what the prisoner stated on that examination, being sec- ondary and inferior evidence, ought not to have been received on trial of the prisoner. l*eter v. State, 4 S. & M,, 31. In the admission of this parol evidence on the trial of the case below, the court erred. For this reason, the judgment will be reversed, the case re- manded, and a new trial awarded. Vol. I. -13 *,*! ■?l1| n\] K 1 : ■ in i'l :i lOi AMERICAN CRIMINAL RErORTS. MiDDLKTON VS. SxATE. (52Ga., 527.) Evidence: Corroboration of accomplice. On a trial for felony, a conviction cannot be had on the testimony of an accom- plice, unless such testimony is con-oboi-ated, and the corrolwration must bo a« to some fact or cu-ciunstance tendinj? to connect the respondent with the crime. It is not sufficient that the evidence of the accomplice is corrob- orat<;d by facts which tend to show the commission of the crime, and tliat the accomplice was concerned in it. Criminaj. Law. Before Judge Schley, Chatham Superior Court, November Special Term, 1873. Jack Middleton and William Seabrook were placed on trial for the murder of John Houston. The evidence disclosed the fol- lowing facts: The l)ody of deceased was found in the Savannali river, with the appearance of having been in the water several days. There was a wound upon the head which was sufficient to produce death. It looked as if made by a crow-bar, or some other such instrument. The deceased was em])]oyed as a watch- man on a lighter which lav off Fort Jackson. This boat con- tained wrecking material. Some of this was subsequently found in Dennis O'Connell's junk shop, in the city of Savaimah. It was purchased by O'Connell from Scott Tliurman and Zeke Jackson. The former gave his name as Scott Williams. Here the state introduced Scott II. aUas Tliomas II. Thurman, who had l)een indicted with the defendants for the same oflense, a nolle jn'Oftequi having been first entered as to him. Tiie wit- ness testified is follows: On the 26th of September, 1872, Jack Middleton proposed that I ride with him in his boat; I con- sented. He, William Seabrook, Zeke Jackson and myself met at Mrs. McCfuirc's on Farm street; Middleton proposed that we all go on a riding expedition; we went, and found abreast Fort Jackson two large lighters or barges. We heard some one talk- ing to Houston; we made fast to the pillars of the-Fort; after a while I proposed a return; I went to sleep, and was awoke about half ])a8t eleven at night by a steamer; I wanted to come back, but Middleton took me over to the lighter; after getting up, Houston said he did not like so many men on board that time of night; Middleton asked him about selling the iron; Houston refused to sell — went into his ciibin and got an old sword ami MIDDLETON v. STATE. 195 pistol; Micldleton said, while Houston was gone, " shove him overboard and let him swim to shore; " I said, W2 had better tie him, if we do anything; it won't do to harm him. Middleton said, "you are fixing for him to halloo, now; " Seabrook said, "that aint worth a d — n." Jackson knocked Houston down as he was passing, with a crow-bar; witness tried to keep Jackson from throwing Ilonston overboard; Seabrook seemed also to be trying to stop it. Houston rose after being thrown in by Jack- son, and swam to the boat; Jackson and Middleton loosened his hold and drowned him. Then Middleton and Jackson took the iron and passed it to Seabrook, who stored it away. Middleton cursed and abused me becanse I would not help; from fear I kept silent; we came up and hi?ided at the canal dock; Middle- ton ordered all hands to meet there at five o'clock that moraine: ; at eight I went down to the blutt", and saw them unloading a wagon; was present when the iron was sold; Mr, O'Connell paid Zekc Jackson $18.10; Jackson then divided the money with the party; he kept 80.00, Middleton took $5.00, Seabrook $3.50, and I was given $3.(50. Seabrook fastened the boat; Middleton said he wanted no cowards; that if he could not buy the iron, he'd liave it anyhow. Went up the country to Effingham to work; after the arrest of Jackson and Middleton, I went to South Caro- lina; proposed to Seabrook to come to Savannah; he swore ho would not. !Mr. Morgan and Mr. Strobhar arrested me; told Mr. ^lorgau all about it when arrested, without any inducement offered. Seabrook broke and ran, but stopped and came back; he was with me at the time of the arrest. Xo bargain was be- tween us, so far as I kntnv, when we went down the river; did not know Houston; did not know what the party was about un- til they had remained at the Fort; went to sleep, and woke w.\i at half past eleven at night; we left the city about five p. m.; don't know what they were talking about from the time they left the city; did not go to sleep until after we got to the Fort; when I wanted to go back, Jackson told me I was a child; it was after this that I went to sleep; I did not row back; up to the time that Jacl:,>^on struck, nothing was said al)out killinxus. (50 Ciil., 233.) Evidence Impeachment of witness. When the chamctor of a witnef s has been attacked by evidence that he has been convicted of felony, it may be sustained by evidence of his general reputa- tion for truth and integrity. l-t" "Wallace, C. J. Sachell, a witness for the prosecution, having testified in chief, was asked by the counsel for the defendant whether he had been convicted of felony, and answered that he had. Sid)sequently, the prosecution called a witness to prove that the general reputation of Sachell for truth, honesty and integ- rity in the community in which he resided was good. This proof was objected to by the counsel for the prisoner, on the grounds " that the same was irrelevant, incompetent and in- admissible; that no evidence had been oflfered by the prisoner :} 198 AMERICAN CRIMINAL REPORTS. tending to impeacli the said witness, Sachell, for truth, lionesty and integrity." The objection was overrnled, and the proof admitted. An ex. ception reserved by the prisoner to tlie ruling in this re.-*pect presents the only question to be considered upon this a|»peii]. The Code of Civil Procedure (sec. 2051) is as follows: '-A witness may be impeached by the party against whom he is called, by contradictory evidence, or by evidence that his general reputation for truth, honesty or integrity is bad, but not Ity evi- dence of particular wrongful acts, except that it may be t^lunvii by the examination of the witness, or the record of the judir- ment, that he has been convicted of a felony." It is sipiw- rent that when the prisoners proved that Sachell had been convicted of felony, it amounted to an impeachment or an attempted impeachment of the witness, under the provision of the code just referred to. It was a direct assault upon lus reputation for truth, honesty and integrity, made in the man- ner pointed out by the code concerning the impeacluneiit of witnesses. The prosecution, therefore, has the right to sustain its witness by evidence of his good character, under tlie pro- visions of section 2053 of the same code, which provides in substance that the testimony of a witness may be su}>ported hy evidence of his good character, where such character lias liccii impeached. The argument for the prisoner made here, asserts that " the proof of the previous conviction of the witness is in no sense an attack upon his general character for truth, honesty and integrity. The conviction is simjily the consecpience of one act of misconduct, and one particular act is not sufficient to make a general character. The law recognizes this, when it does not allow particular acts of misconduct on the part of witnesses to he shown by way of impeachment." (Code of Civ. Proc, sec. 2051.) If the proof of his previous conviction of a felony did not amount to an attack upon the general character of the wit- ness for truth, honest}' and integrity, what, it may be inquired, was the purpose of its introduction? Certainly it was not to exclude the witness on the ground of incompetency to testify In' reason of infamy; for, under any rule, it came too late for that purpose, and not in the proper form. But had it been offered at the earliest opportunity, and by tlie production of the record of conviction, it would not have availed KEAN V. COMMONWEALTH. 199 to excliulc the witness, because section 1S79 of tlie same code provides, that a previous conviction of felony shall not operate to (lis(pialify a witness, or preclude him from testifying in the case. It is apparent that tlie purpose of the proof that the wit- ness had been convicted of a felony was (under section 1879) to repel the presumption that he spoke the truth, " by evidence af- fecting,' his character for truth, honesty and integrity," which in itself amounts to impeachment, for there is no force in the ref- erence made to the general rule which forbids the impeachment of a witness by evidence of particidar wrongful acts, because the Code of Civil Procedure (sec. 2051) already cited, while re- ferring to the general rule, expressly permits proof of a convic- tion of feiony as an exception to that rule. Judgment affirmed. Evidence: IvEAN VS. Commonwealth. (10 Bush, Ky., 190.) Evidence of deceased witness on former trial — Reputation of famihj of witness. Tlio cvidonct) of a decoasod witness, yivon on the first trial of tiio rospondent, is admissible a^'^iinst him on a second trial of th(i same indictment. But tlie statement in a bill of exceptions of the testimony of a deceased witness, j^iven on a former trial, is not admissible ajfiiinst tlie respondent on a second trial of the same indictment. The testimony of the deceased witness niust be proved by persons who were present at the first trial. The respondent hius a rijxht to be confronted with the witnesses aj^ainst him. In impeachin;,' the character of a %\'itness, evidenct^ of the bad repute of his fiiiiiily or associates is iirelevant and inadmissible. Pryok, J. The appellant, Henry Kcan, was indicted in the Jefferson circuit court, charged with murdering one Avei'y. lie has been twice tried and found guilty as charged, and the case is in this court the second time for revision. A witness by the name of iladdox, who testified in the Urst trial, died before the second trial took place. His evidence was embodied in a bill of exceptions prepared in the court below, and considered in this court on the first a])peal. On the second trial of the case, the one now being considered, the statements purporting to have been made by Maddox, as contained in the bill of evidence, were n IP 200 AMERICAN CRIMINAL REPORTS. h H jicnnitte*!, iipiiiist tlie objections of the accused, to bo read as evidence to tlie jury. It is now urged ]»y nppelliint'.s cfiunsel tliat tlie iidiiiission of tills testimony was in violatidn of the twelfth section of tlie l)ill of rif^hts, wliich jnvjvl^les that in nil criminal ]»r()S('('Utions, the accused hatli the riglit to meet the wit- nesscs face tf» face. The conviction of tlie accused, in hoth instance.^, was upon circumstantial testimojiy alone, and the learned judi^e .>ie!ectedt; try tlie case in the court lielow, in overruling the motion fur a new trial, delivered an able though not convincing argument in lavor (»f the comj)etency of the testimony admitted. ]\rany autliorities are referred to in belialf of the state, sustain- ing the right of the commonwealth to prove, by other witnesses, the statements of a deceased witness made under oath, in the same case ami upon the same issue lietween the same parties, hi this case, Maddox had been once examined as a witness, and the ■whole current of authority is, that in such a case tliose who were present and lieard tlie statements of the deceased witness may testify as to what these statements were, if the witnesses so called are able to give tlic substance of all that was said by the dead ■witness, when the latter testified. The requirement that the ac- cused shall have the right to meet the witnesses face to face is thus complied witli, and no constitutional right violated. The question in this case is not whether the statements of a deceased witness on a former trial were competent, for this niui-t 1)0 conceded, but has the accused been deprived of a constitu- tional right in permitting a written statement of what the de- ceased witness said to go to the jury? We think he has, and that a witness or witnesses should have been called to prove these statements without reference to what was eontained in the bill of exceptions. The evidence in a bill of excej)tions may bo read (when the witness is dead) in a civil action where a retrial has been ordered, but we have found no case where such testimony lias been allowed in a criminal prosecution. The testimony of what a deceased witness stated is competent in either a civil ac- tion or criminal prosecution, but the mode of proving it is dif- ferent. In a civil case, either mode may be adopted, but in a criminal prosecution, the statements must be proved by living witnesses Avho speak from their own recollection of what the de- ceased witness said. These witnesses are before the accused and KEAN V. COMMONWEALTH, the jury. Tlic accused has tlio ri^'lit to cross-c\iunino, and to know, or ftscertain from tlie witness, that he U detailing in sub- shineeall that was spoken Ity the deceased witness; without this, lie is deprived of any oral examination, or of even knowing wlio is to testify against him. It is the presence of the witness that tills provi, ion of the bill of rights entitles the accused to have. The coiiii»etency of the testimony when offered is with the court, Imt the right of the accused to see or confront the witness is an iiidUpeiisable requirement. In this case, the evidence of the deceased witness was reduced h writing by one of the counsel for the accused, from the notes of the testimony taken by the judge presiding at the first trial. It is gliown by this attorney that these notes were inaccurate. Tiie judge is not called on to testify, or the right to cross-exam- ine allowed, in order that the accused may know how much of the testimony was omitted, or whether the attorney had embod- ied in the bill of evidence the substance of all the witness stated. In this case, others seem to have been charged with the com- mission of the crime in connection with the accused. Ilis associ- ations with these parties as to time, place, etc., as well as many other circumstances, are necessary to be shown by the common- wealth in order to make an unbroken chain of testimony against the accused. A fact or circumstance proven on the first trial, and then regarded as immaterial by the court and counsel, might heconie of vast importance to the accused on the second trial, and therefore the necessity of having the witness before the jury in order that the accused may cross-examine. Section 305 of the code jirovides " that in making an exception, only so much of the evidence shall be given as is necessary to ex- plain it, and no more." This court has no power to reverse a judgment of conviction in a criminal case for the reason that the evidence does not authorize it. If there is any proof conducing to show the prisoner's gnilt, the judgment jnnst be sustained in this court, unless there has been some error of law to the preju- dice of the accused, committed during the progress of the trial, and for which this court, by the provisions of the code, has the power to reverse. The court below, therefore, in making out a bill of evidence in a criminal case, only gives so much of it as will enable this court to determine the questions of law arising on the facts, and would necessarily omit many circurastances or 202 AMERICAN CIUMIKAL RKl'UUTS. facts that were or iniglit l»o of iiiipurtiincu to the accused befuro a jury, and of hut little conse(|ueiicu in this court. The evidence in the case was taken down on tiie last trial, and adds nearly one thousand pa^es to the rec(jrd, and it lui^ht well happen that the suhstanco of all that was said hy this witnesij was not contained in the l)ill of evidence. It is u constant oc- currence for counsel to disa<^ree as to what a witness has sworn to, both recollecting with etjual clearness, and the court deter- niinin<^ the issue between them, more with the view of havinj,' the le<^al (questions arisin<^, i)resented properly to this court than to <,'et the substance of all the witness said. Even those who are present and favorably inclined to one party are very apt to make the lanf,nia<,'e used by the witness coniorm to their own wit^liot, and hence the absolute necessity of givin<^ to the accused, wliure his life or liberty is involved in the issue, the right of cru»;- examination. This right of the accused to confront the witness testifying against him is declared in both the fedwal and state constitutions, and doubtless in the constitution of every state in the union; a right indispensable to the citizen when his lite or liberty is involved, and the admission of this silent witness is, in our opinion, in plain violation of the twelfth section of the bill of rights. (5 (Jhio, 35.1:; 10 Humph., -486; WahtotiV. The CommorvweaWi , 10 W. Mon., 15.) It is maintained by counsel for the state thsit the evidence, con- ceding it to be incompetent, did not prejudice the rights of the accused. The persistency of counsel for the state in the conri below in having it before the jury, as well as the imporlaneo at- tached to the question by the judge ])residing at the trial, is sufHcient evidence of its importance, without analyzing the tes- timony to show it. It is also insisted that, as the admission of incompetent testimony was not made a ground for a new trial in the court below, this court has no jurisdiction over the question. This question has heretofove been decided in the case of John- son V. The Commomoealt/i, 9 Busli, 224. The instructions given contain, in substance, the law of the case. Instruction No. 4 is rather an argument upon the effect of a confession than an instructioi'. to the jury; as an abstract prop- osition of law it cannot be ijiicstioned, but in its application to the facts of a case, we do'.; be whether a iury should be told that a confession voluntarily nuxde was anu g the most efiectual proofs KEAN V. COMMONWEALTH. 203 in the cftsc. The confcBsion Imd been i)crinitteil to go to tlio jurv, luul they BhouUl have been left to coiisidur it in connection with the otlior testimony in the case. The caution given jnriea in receiving proof of verbal cctnfessitjn has alwuves been held iiroijer, by reason of the lunnane and merciful considorationd to which tlie accused is always entitled when on trial upon an issue involving his liberty or life. >'(( reversal woidd have been had, however, by reason of this ingtructioii, as we are well satislied the substantial rights of the nc'cnsed were not atl'eetcd by it. The other objections made to the ridings of the court arc not available, even if such rulings were erroneous, as they are (piestions over which this court lias no revisory power. It is proper to suggest that in impeaching the character of a witness, by showing that he is not entitled to credit on oath, proof that his family or associates are in bad repute is clearly incompetent. It is the general character of the witness assailed tlmt is in issue, and not that of his family. ^\c hiivc examined this large record carefully, and refrain from expressing, as we have no right to do so, an opinion as to the gnilt or innocence of Henry Kean; but whatever his condition in life may be, or the cliXMimstances surrounding him, he is en- titled to a fair and impartial trial and the maintenance of his constitutional rights. The judgment of the court below is reversed, and cause re- minded, with directions to award to tlie appellant a new trial, and for further proceedings consistent with this opinion. Note. — Tlie tostimony of a deceased \vitness, examined on a former trial on a criminiil cliarjfe, may be proved on a second trial for the same otFensc. Pope v. mate, 22 Ark., ;J7'2. The prosecution, on a second trial for a crime, may prove wluit a witno.'^s, since deceased, testified to on a fomicr trial. The general rules of evidence are the same in both criminal and civil cases. The testimony of a witness, since decesised, given on a former trial in a cnminal case, may be proved on a subsequent triid, by permitting a pei*son who kept notes of such testimony, and who swears they contain the substance of the testimony, to read his notes to tliL'juiy. Pcoftk r. Mnrphi/, 45Cal., 1S7. Wliat a deceased witness testified on a former trial in a criminal case may be proved by a witness who was present and heard the deceased witness testify. The witness giving evidence of what the deceased witness testified to on a former trial must, however, give his evidence from his own recollection. If the witness who heard the deceased witness testify on a former trial be the attorney of the accused in Ijoth trials, the state, nevertheless, has the right to have lilo testimony on thia 20-4 AMERICAN CRIMINAL REPORTS. i point, his recollection of all the importiuit facts testified to by tlie deceased mt- ness ill favor ot his client being presumed. State v. Cook, '2;J La. An., 347. Testimony proving the statements made by a deceased witness on oath, at a former trial, between the same parties, being one of the established excepi'wm to the rule that hcarsaij is incompetent as evidence, tlie aibnission of a witness to give eudenee of this kind, ui a cjimiual ca.«e, does not contravene tlie constitution. It is not essential to the competency of such endenco, that it bo given in the exact words used by tlie deceased person; but while the witness is allowed to give tlio sabstance of the stateinents of tlie decea-sed peKoii in tlie foniier trial, ho is not allowed the latitude of giving their mere ej/'ecf. It is essential to the comjietency of the witness called to give tlii.s land of evi- dence, first, that he heni-d the deceased person testify on a fonaor trial; ami, second, that he has such accurate recollection of the matter stated, that he will, on Ills oath, assume or undertake to narrate, in substance, the matter swoni to by the deceased person, m all its material paiis, or that piui therL-of wliicli he may be called on to prove. It is essential to the competene;i of the evidenee, fii-st, that the matt<:'r stated at the former tri;d by the witness, since di}ceased, should h.ave been gi'.en un oath; second, between the same parties, and touching the same subject matter; where opportunity for cross-exaiuuiation wjis given the person a^jainst whom it is now oifered; and, third, that the nuittcr sworn to by tfie person since deceased betilakd in all its material parts, and in the order in which it was giren, so far as mccs' sari/ to a correct understanding of it. Summons r. State, 5 Ohio St., !3'2-"). On the second trial of the accused upon an inilictnient tor assauJ ' with intent to murder one H., the state was permitted to show that H. had died since the previous final, and then to prove by a witness the testimony given by H. as a state's witness ujion the previous trial. Held, that although tliere are unuiy authorities agauist the competency of such evidence in crimuial caaes, yet tl.e great preponderance of jjuUcial decisions, in botli England and America, now concui-s with the better reasoning in holiling that such evidence is competent iuul admissible as well in criminal as in civil cases. And held further, that it is not necessary to prove the precise language used by the deceased witness in his testi- mony; the sub.stiuice of his entire testimony is sufficient, ajid may be stated in diiferent Luiguage than tliat eniploj'ed by him. Greenwood v. State, '3o Tex., 587. Proof of what a deceiused witness testified to on a iirel'miiiaiy examination bo- fore a justice of tlie peace, touching the same chai'ge for which the accused stiinds infhcted, is admissible agiiinst him, although the examination was not reduaJ to writuig. In such a case, it is not nece«siU'y to prove tlie Ituigiiage u.si>d by the witness ui givuig his testimony; its substance is all that is n.-qiui'tvl. But proof of what a deceased witness testified to on a former trial is not admissible, unless the pouit in issue is the same. Davi« v. State, 17 -iVla., ■>A. The rule in regard to the proof of the testimony given in a former trial, by a witness who has since died, is the same in civil and criminiil casi>s. So, ujwn the trial of a party on a charge of manslaughter, it was held competent for tlie pros(icution to prove by pei^sons who heard and remembered it, the testimony of a witness ui the pre- hminai-y examination before a justice ot the peace, such witness having thed be- fore the final trial. Barnett v. People, 54 III., 325. A person Wiis arrested and taken before the proper officer, charged with rob- bing the mail. At the preliminary examination, a witness, smce deceased. KEAN V. COMMONWEALTH. 205 testified m relation to the otTonse. Tlie accused was present, aaid liis counsel crass-cxaniiiu'd tlio witness. Witnesses were permitted to prove, on a trial before a jury, under an indictment found for the same otfense, what tlie deceased wit- ness testified at the preluuinary examination. The rules of evidence in civil and criminal ciises, in tliis particular, are the same. It is sufficient, in such case, to prove substantially all that the deceased witness testified upon the particular sub- ject of inquiiy. United States v. Mnromb, 5 McLean, C. 0. (U. S.), 2S6. A deposition of a witness, taken before the preliminaiy examination before a committiiij,' magistrate in the presence of the accused, may be received in ev- idence on the trial upon proof of the death of such witness (Ryland, J., dissent- ing), llie provision of the constitution of tliis fetate declaring "that in all crim- inal prosecutions the accused has tlie riylit to meet the witnesses agaiaist him face to face " does not render such evidence illegal. (Uvland, J., dissenting.) State V. MvO'lShnis, 24 Mo., 402. Kusliing, who was examined as a witness against Kendrick, before a conmiit- ting court, died before the trial of Kendrick in the cii'cuit comt. The attorney for the state proposed to prove on the trial what lluslimg had stated before the committing court. This evidence was held not in violation of the constitutional right of the defendant to meet witnesses against him, face to face, for Kendrick liad met Kusliing face to face before the conmiitting court, and had the right to cross-examine liim, and had in the ckcuit court the right to cross-examine those who proved what Hushing hiul stated. Where it is proi)0.sed to introduce the testimony of a deceased witness given on a former trial between the same parties, it is not necessary to prove the exact words of such deceased witness. It is suf- ficient if the substance of all he said on the examination and cross-examination ill relation to the subject matter in controversy bo proved. Kemh'kk v. State, 10 Humph., 479. On the examination before a justice of the peace of a prisoner charged with murder, tlie tvstimony of a witness for the commonwealth wa.s taken in writing. Tiie witness liaviiig died, the notes of his testimony were admissible on the trial. Broirnv.Conimniiirealth, 7.'} Peim. St., o21. The 12th article of the Declai-ation of Rights, whicii provides, tiiat in criminal cases, the accused shall have the right " to meet the witnesses against him, face to face," is not violated by the admission of testimony in a crimuial triiil before a jmy, to provi? what a di'ci'a^ied witness testified at the preliminaiy examination of the accused before a justice of the peace. It is not sufficient, in such case, to prove the substance and effect merely of tlie testimony of tlic deceased witness, although the memory of the witness ottered to inove such testimony, be aided by notes taken at the preliminary examination; hut the whole of the testimony of the deceased witness upon the point in question, and the precise words used l)y him, must be proved. Commnnwealth r. likhardi, 18 Pick., 4;!4. If a hearing be had before a magistrate, ui)on the complaint of a town grand juror charging a person with tlie commission of a crime, and the re- spondent be, by the magistrate, bound over for trial by the county court, and au indictment be found against him, and before a trial is had upon the indictment, a witness, who testified before the magistrate, dies, evidence may be received on trial upon the imlictment, to prove what that witness testified before the magis- trate. And it is not necessaj-y, on such trial, to prove the exact language used by the \sitness m giving his testimony before the magistrate; it is sufficient, if the I^Mi' 206 AMERICAN CRIMINAL REPORTS. substance of his testimony, as tlicrc given, be detaileil. Sinfe r. Jloolrt; 17 Vt,, 658. But the nile seems to be otherwise in Tennessee and Virginia, where it ij hekl that the evidence of a deceased witness cannot be given by tiie prosecution in a criminal case. See State r. Atkins, 1 Overt. (Tenn.), 2'2y, and Finn v. Com., 5 Rand. (Va.), 701. Shivers vs. State. (5:5 Ga., 149.) Evidence; Practice — Continuance. Under a statute which provides that the certificate of any pubhc officer of tiio state to any record, document, paper on file, or otiier matt*'r or thing in his office, shall be admissible in evidence in any court of the state: Held, that such certificate is admissible against a defendant in a criminal case, and tliat his constitutional right to be confronted with the witnesses agaiii.st iiini is not thereby violated. The defendant applied for a continuance when the case was called for trial, on the gi'ound that the indictment wa.s only found two days previously, and his counsel had been so much engaged that \w had not been able to prepare the case for trial. It l)eing made to ajipear by the certificate of the trial judge, that the defendant had lieen an-ested the term before, and was tlion fully informed of the charge against him, and was ii.^ked if hi' di'^iircd counsel, and wanted a trial, to both of which qut^tions he answered no; Held, there was no error in oveiTuling the motion for a continuance. Shivers was indicted for the offense of cmbezzlinij; 8ll,(W, collected by him as tax collector for the county of Hancock, dur- the year 1S71. He pleaded not guilty. When the case was called for trial, ho moved for a continu- ance on the ground that the indictment had heen found oTdy two days previous thereto, am! his counsel had hoen constantly en- gaged in the business of the court to the exclusion of any ojtportii- nity of making preparation in the case, or even of consulting with his client. The motion was overruled and defendant excepteil. It was shown by the prosecution that tlic defendant was the tax collector of Hancock county; that the state tax assessed for the year 1871, on the taxable i)roperty of said county, was !?11,- 000; that the defendant had collected various amounts from divers tax payers during that year; that when the solicitor gen- eral, as agent for the com]>troller general and treasurer of the state, demanded the 811,000 from him, he replied that he liiul collected . \d used the money, and did not then liave a dollar. but that " if they would give him a chance, he would make it and pay it." SHIVERS f. STATE. 207 Tlie solicitor general tendered in evidence the following papers: "Hancock County — S. C. Siuvehs, Tux Collector. " To general and poll tax, 1871 ?12,070 77 " Wi. January 8tli, by f,n'n(n'al tax paid tn^vsurer 284 05 " 1873. .Tanuaiy 8th, by poll tax paid trcasuror 513 00 "OiaaCK OF THK CoMl'TKOLLKR GkNKKAL " Of tiik State of Gkorgia. " Atlanta, Ga., January 2^, iSj^. "I, W. L. Goldsmith, comptroller general of the state of Georgia, do hereby certify that the above and foregoing account of S. C. Shivers, tax collector of the county of Hancock, in said Etate, for the year 1871, is a full, true and complete exemplifica- tion taken from the books on file in this office, and there re- quired to be kejit by law, in which the accounts with said state, of all the tax collectors thereof, are kept according to law; that said account is truly and correctly taken and copied from said books; that the same is a full, true and complete exemplification of all the accounts of said S. C. Shivers with said state, as such tax collector, from the year 1871 up to the ])rescnt date, as copied and taken from said books; that the balance o" §11,- 270.72 due thereon is unpaid, and that the amounts credited thereon January 8th, 1873, were paid by L. L. Lamar, tax col- lector of said county. "Given under my hand, official signature and seal of office, 24tli day of January, 1S7-1. (Signed) "AV". L. (toi.dsmith, CoinptroUor Gcncnil.'''' ^Mso certificate from the treasurer, in similar form to tran- script frcim his books, covering all payments into the treasury dnring the month of December, 1S71, from whatever source, among which none appeared as having been nuule by the de- fendant. Tills evidence was objected to, but was admitted by the court, and defendant excepted. The jury found the defeiulant guilty. A motion was made for a new trial upon each of the above grounds of exception. The motion was overruled, and defendant excepted. As to the refusal of the continuance, the presiding judge cer- tified as follows: ""When this case was called, it was postponed for a day to give defendant's counsel time. The defendant was arrested tho , k 208 AMERICAN CRIMINAL REPORTS. r ', term before and brought before me under a warrant. "When asked by tlie court if lie wanted counsel, he said ' no.' If lie wanted a trial, he said ' no.' lie was fully informed then of the nature of the accusation, as much as he was after the bill was found." Gcorffe F. Pierce, M. W. Lewis and F. L. Little, for plaintiff in error. Samuel LMmpJcin, Solicitor General, for the state. Warnkr, C. J". The defendant was indicted for the otTcnse o£ embezzlement, and on the trial thereof was found guilty by the jury. A motion was made for a new trial, on the several grounds alleged therein, which was overruled by the court, and the defention, no sufficient reason is perceived why the "■nilty party slioukl escape punishment. Exceptions overruled. Indictment adjudged good. DicKEKSox, Daxfoutu, ViRGix, Petkrs and Libbev, JJ., con- curred. Kellkb vs. State. (51 Ind., in.) False Pretenses: ImUdmcnt — Crimiiml pleading — Contradktonj allegations. An indictment for false pretenses in selling .a mortgage which alleges that the prisoner pretended tliat he had recently sold the real estate covered by the mortgage, and that said real estate was situated in I., but which does not pive the name of the purchaser or describe the property, \nthout alleging that such name and description are unknown, is bad on a motion to quash as lieing too uncertain and indefinite. In an indictment for false pretenses in the sale of a $-*)00 mortgiXge, where the pretense was that the real estate covered by the mortgage was worth $3,500, an allegation that the real estate was not worth $3,500 is insurticimit. Tlie mdictment should show that the property was not of sufficient value amply to secure tiie sum of $500. It seeuis that, in a prosecution for false pretenses in the sale of a mortgage, if the real estate covered by the mortgage is suHiciently valuable amply to se- cure the sum due on the mortgage, it is immateriid that the respondent represented the red estate to be very nnich more valuable than it actually was. In an indictment for false pretenses in the sale of a moi-tgage, where the pre- tense is that the property covered by the mortgage is not sulijoct to any prior liens, an allegation that the iiropf'^y was subject to prior liens, but which do(\s not set them out or describe them, is insufficient. The avenuents in criminal pleadings should be definite, clear and distinct. Reproseiitations of future events are not false pretenses, which must be as to existing facts. An indictment containing contradictor}- and repugnant allegations is bad. Elskikk, J. Tlie appellant was indicted in the court helow for obtaining property by false pretenses. The indictnieiit con- tains two counts, which, as to the false pretenses charged, are nearly identical. The appellant moved to quash each count, but this motion was overruled, and he excepted. lie pleaded not guilty, and was tried by a jury and was found guilty. The court M\' i 212 AMERICAN CRIMINAL RErORTS. f .1 ■ ! ; ■ : overruled tl»e motions in arrest of judj^niont and for a new trial to which exceptions were taken. Judgment was rendered on the verdict. The a])pellant lias assigned for error, the overruling of his mo- tions to (juash the indictment, in arrest of judgment, and for a new trial. The first question for the consideration of the court relates to the sufficiency of the indictment. The first count, omitting the formal parts, is as follows: '"The grand jurors of Tipton county, in the state of Indiana, good and lawful men, duly and legally impaneled, sworn and charged in the Tij)ton circuit court of said state, at the spring term f(jr the year 1875, to inquire into felonies and certain misdemeanors in and for the body of the said county of Tipton, in the name and by the autliorlty of the state of Indiana, on their oath do ])resent that one llobert II. Keller, late of said county, on the lyth day of October, in the ye.ar 1S74, at and in the county of Ti])ton, and state of Indiana, did then and there unlawfully, feloniously, de- signedly and with intent to defraud one George AV. Eoyer, falsely pretend to the said George W. Boyer, that he, the said Ilobc.'t II. Keller, had been the owner, and had recently sold to a certain party a certain piece of real estate, to wit, a house and lut of ground, situated in the city of Indianapolis, in the county of Marion, in the state of Indiana, for a large sum, to wit, the snni of thirty -five hundred dollars; that said real estate was of great value, and fully worth the said sum of thirty -five hundred dol- lars, and that there was still duo the said Robert II. Keller, njKjii the purcliase money of said house and lot of ground so sold as aforesaid, the sum of five hundred dollars, and that there was no lien or incumbrance on said house or lot of ground except the said lien of five hundred dollars, for the purchase money thereof, due the said Robert II. Keller, as aforesaid, and that if the said (Jeorge ~\V. IJoyer would sell and deliver to the said liobert II. Keller, goods, chattels and pro]>erty to the amount of five hun- dred dollars, he, the said Robert II. Keller, would pay the said George W. Boyer therefor, in and with a ])romissory note given and being for the said sum of five hundred dollars, the purchase money due the said Ilobert II. Keller, upon the said house and lot of ground as aforesaid, and to be made payable to the said George "W". Boyer, on the 1st day of March, in the year 1875, and secured KELLER V. STATE. by a mortgage upon tlie saitl lionse and lot of ground, and that tlie said lien of five hundred dollurs, for the purchase money for the said lious^e and lot uf gr^iuncl, and the said mortgage securing the saiae, wari all and the only lien whatever upon the said house and lot of ground, and that the said house and lot of ground ^vero of the full value of thirty-five hundred dollars, and ample and cutlicieiit surety for the payment of the said purchase money as aforesaid, and that the nute executed as aforesaid to the said GeoriTC 'SV. l>oyer would be of the full value of and worth tho sum of five humlred dollars. Bv nieiins of which said false pretenses then and there made to the said George W. IJoyer, hy the said Robert II. Keller, as aforesaid, he, the said Robert 11. Keller, did then and there, with intent to cheat ami defraud him, the said George W. Bover, unlawfully and feloniously obtain and receive from the said George W. Boyer, tlie following goods, chattels and prop- ertv, to wit: one spring wagon, of the value of two hundred and twenty-five dollars; one two horse wagon, of the value of one hundred and fifty dollars; one log wagon of the value of one luuulred and twenty-five dollars; all of the said goods, chattels and projierty, being of the aggregate value of five hun- dred dollars; and for the goods, chattels and property of the said George AV. Boyer, and in payment fV>r the said goods, chattels and property so obtained and received by the said Robert II. Keller, from the said George W. Boyer, as aforesaid, he, the said George "W. Boyer, did receive the said five hundred dollar note, fully relying u]H)n and believing said false and fraudulent pre- tense and rei)resentations made to him by the said Robert II. Keller, as aforesaid, and believing them to be true; whereas, in truth and in fact, the said Robert 11. Keller had not then recent- ly sold to a certain ])arty a certain piece of real estate, to wit: a house and lot of ground situate in the city of Indianapolis, iu the county of Marion, in the state of Indiana, for a large sum, to wit: for the sum of thirty -five hundred dollars, as aforesaid; and that said house and lot of ground were not then of the value or worth thirty-five hundred dollars as aforesaid; and that the said lien and mortija<>'e of five hundred dollars on the said house and lot of ground for the purchase money thereof as aforesaid, was not the oidy lien and incumbrance then upon said house and lot of ground, but there were various and numerous other liens '•m 2U AMERICAN CllIMINAL RErORTS. tliureon, older ami prior to the said lien of five luuulred dollars amoniitiiig in the aggregate to two thousand dollars, and greatly exceeding the value of said liouse and lot of ground; and that Baid house and lot of ground were not then of sufficient value to amjdy and sufficiently secure the payment of the said iive hun- dred dollar note, as aforesaid; and that said note, executed tu the said George W. Boyer, as aforesaid, was not worth or of the val lie of five hundred dollars, but was in fact entirely worthless, and of no value whatever, contrary to the form of the statute in sucli case made and provided, and against the })eace and dlgnitv of the state of Indiana.' ' We proceed to the examination of the first error assigned. The first count in the indictment has been set out, and as it is quite lengthy, we will summarize its averments and negations. 1. It is averred that Robert II. Iveller (falsely pretended that lie) had been the owner, and had recently sold to a certain party, ■whose name is not given, nor is it averred that this name was unknown to the jurors, a certain piece of real estate, to wit: a house and lot of ground situate in the city of Indianapolis, county of ^Marion, and state of Indiana, for a large sum of monej', to wit: for the sum of thirty five hundred dollars. There is no further descri])tion of such real estate or any averment that it was uidcnown to the jurors. 2. That said real estate was of the value of thirty-five hun- dred dollars. 3. That there was still due the said Robert II. Iveller, upon the purchase money of said house and lot the sum of five hun- dred dollars. 4. That there were no liens or incumbrances ujion the said house and lot exce])t said sum of five hundred dollars for the un- paid purchase money, and the mortgage securing the same. 5. That the said house and lot of ground were of the full val- ue of thirty-five hundred dollars, and amjde and sufficient secu- rity for the said sum of five hundred dollars. C. That the note which was executed by the purchaser of said real estate to George W. Boyer, to whom said representations were made, and in reliance upon which he had sold to said Kel- ler certain personal property, would be of full value, and worth the said sum of five hundred dollars. The first averment is very vague and indefinite. There is no KELLER V. STATE. 215 Bufficieiit description of the real estate alleged to have been owned and sold by the appellant. Nor is the name of the pur- cim!oyer, did not describe the ])ro])erty which he had owned and sold, the description of the property could not have been introduced in that portion of the indictment; but the ilrst averment as above set out might have been ])receded or fol- lowed by a statement that the api)ellant had owned and recently sold lot 40 in Yandes' subdivision of outlot Xo. 129, in the city, county and state aforesaid, and that the rc'])resentations relied upon were made in reference to s\ich property. If the name of the purchaser of such lot was known to the grand jury, it should have been stated, but if unknown, that fact should have been averred. The ne:;ation to the first averment is as follows: "AVliereas, in truth and in fact, the said I{ol)ert II. Keller had not then recently S(dd to a certain party a certain piece of real estate, to wit, a house and lot of ground situate in the city of Indianapolis, in the county of Marlon, and state of Indiana, for a large sum of money, to wit, for the sum of thirty-five hundred dollars as aforesaid, and that said house and lot of ground were not tlien of the value of, or worth thirty-five luindred dollars.'' By the above averment and negation, the guilt of the appel- lant is made to depend upon the question whether the house and lot of ground had been sold to a certaiii party for the exact sum of thirty -five hundred dollars, and whether they were worth that ! !* ff?: '.''v M ■';H ■■,:!' w Ifi ■'■■'4, in ' Mr ■ "^v- ■ W !: 1 1 210 AMKinCAN CHIMINAL REPUllTS. exact sum, ••vhcn it nlioulil have 1>een uxivlo to depend upon whether the Hi)i)ellunt hail sohl said huuHu and lot of j^M-ound to any jjerson for said sum, and whetlier tlio j)roi)erty was of siieh value as to anij)ly secure Baid sum of live hundred dollars iilleged to he due. The second averment is, that appellant represented that said Vv'al estate was of the value of thirty-tlve hundred dollars. It is contended hy counsel for appellant that a statement of the viiluo of property is a mere expression of opinion or judgment, about which men may honestly diil'er, and if there is no lixed niarket value, an estimate that is too hi^di will not constitute tv criminal false pretense. The question discussed hy counsel does n(jt squarely arise upon the averment in the indictment, and hence we do not eoiisiiler or decide the question, i)referrin^ to await until it arises on the evidence or instruction of the court based upon the evidence. There is no negation of the third averment, hence, it is admit- ted to be true, and no evidence would be adniissilde to ])rovc it to be untrue. The fourth averment and its ne_i;ation arc insufficient. The neuld sell and deliver to the said Hob- ai 11. Ktllcr, goods, chattels and projierty to the amount of fivo hiiiulrod dollars, he, the said Rithci't 11. Kdh:t', would pay tho fiiiJ O'coiyr W. Jloijef therefor, in a promisst>ry note, given and lioiiig for tlie said sum of live hundred dollars, the purchase iiiuiicy d. the said Jioheii H. Keller upon tho said house and lot of ground, as aforesiiid, and to he nuido payahle to the said Gi.of(je ir. lloijii' on the 1st day of March, in the year 1S75, and a'ciired l»y mortgage upciii said liouse and lot of ground," etc. It is alleged that Keller was to jiay lioycr in a note given and being for the said jjurchase money, and it is then averred that 6iii(l ..etc is to ho nnido payahle to the said Jjoijei^ and secured by a luortg'ige upon said real estate. In Tlie State v. Ziucke, 35 Liil, •1I1>, the indictment was held had hecauso it charged that the pretense was made to induce Kiser to hecoiue the security of Locke, on a six hundred dollar note, hut that, instead of going teeiirity, he hccamo a principal, and made a note for six liundred ilullars, payahle to Locke. The indictment was held aml)iguou3 and uncertain, and an indictment must be direct and certain, as it rej,'ards the ])arty and the ott'ense charged. Whitney v. The Stuh, 10 liid., 404; Walhi- v. The State, 23 id., 01; IJicknell's Crini. Trac, W), O;;, 04; yTic State v. Locke, Hupni; The Com- Moimealth v. Mmjowaii, 1 Met. (Ky.), 308; The People v. Gates, 13 Wend., 311. It is a settled rule of criminal pleading, that the ofiense charged must be ])roved in substance as charged. This cannot be clone in the averment under examination. The two aver- ments are directly repugnant. Both cannot be true. The facta of the case are not correctly stated. It is averred that tho note for live hundred dollars had been given to Keller, and was se- cured by mortgage. It was shown u])on the trial that, at the time the representations were made, Keller had agreed upon a Bale of his house and lot of ground, in the city of Indianapolis, ^ i.WF^ Tni ^71 .'■':' ''jj: rill ^ ■' , . J 1 Pffll . ' ' r |5!>l»f ■ ••' i' 1 ! ' ■ III !{ i! , ; • ; 1 1 1 1 m 218 AMERICAN CRIMINAL REPORTS. but tlie deed had not been made, nor had the notes and raort- ga<^es been given, and tliat these facts were known to Bnijcr^ and it was then agreed that a note for five hundred dullars should be made payable directly to Bayer, and secured by mortgage; and it also appears that this was done. Such proof could nut sustain the averments of the indictment. We are very clearjy of the opinion that the indictment cannot be sustained. It is ambiguous, uncertjiin, repugnant, and de- fective in its averments and negations. The judgment is reversed, with costs; and the cause is re- manded, with directions to the court below to sustain the motion to quash. The clerk will give the proper order for the return of the prisoner. Jones vs. State. (50 Intl., 473.) r^VLSE PitETENSES : ImVwtmcnt — Fnhe token — Property ohhijned. A printed business card, such as ordinarily used jy business mon, purporting to be the card of a nui'.nifacturluj,' (inn in ('., whiih is not a yfiiuine bus- iness card of such firm, but fraudulent, is a false token. An indictment for false pretenses, which does not alleyrii that the prosi'cutor ro- lled on the false pretenses as true, is bad on a motion to quash. An inilictment for false pretenses which does not set out thecontnwt into which the prosecutor was induced to enter by means of the falsi> prel(>iisi's, is bml on a motion to quash, liecause it does not show why or how the prosecutor was induced by means of the false pretenses to part with his property. The indictment in this case is held to allege facts sufhcient to deceive a person of ordinary caution and i)rudence. Where a note wa.s obtained by falsi; pnitcnses, and a few hours afterwards tlio respondent induced the prosecutor to exchantfe that note for a sim-uikI of thi; same tenor, because tin,' first was written in pide ink, it was lithl that tho evidence was sufficient to sustain tlvj allegation in the iiidictmriit wliich charged the obtaining of the second note by means of the false iireteusoi, it beuig all one ti'ansaction. BusKiKK, J. The appellant was indicted for, and convicted in the court below of, obtaining the signature of Jej)tha O. IMay- field, to a note payable to ajipellant by false pretenses. A motion to quash the indictment was overruled, and an ex- ception taken. JONES V. STATE. 219 A plea in abatement was filed, to which a demurrer was sus- tained, and an exception taken. A jnotion for a new trial was overruled, and an exception taken. A motion in arrest of judgment was overruled, and an excep- tion taken. Tlic errors assigned arc as follows: 1. That tlie court erred in overruling the motion to quasli the indictment. 2. That the court erred in sustaining the demurrer to the plea in abatement. 3. That the court erred in overruling the motion for a new trial. i. That the court erred in overruling the motion in arrest of jmlfifment. "We wil' dispose of these assignments of error in the order Etateil. Did the court err in overruling the motion to quash the indictment? Tliat portion of the indictment material to this qiiCstion is as follows: "That Edwin E. Jones, on the llth day of January, 1S75, at said county of Jeflerson, feloniously, designedly, and with intent to defraud one Jeptha O. Mayfield, did falsely and feloniously pretend to the said Jeptha O. Mayfield that he, the said Edwin £. Jones, was the agent of a firm of persons in the city of Cin- cinnati, stiite of Oliio, doing business under the firm name of 'Mills, Si)ilhneyer & Co., at Xos. 3GS, 370 and 372 AVest Third ftrcet, in said city of Cincinnati;' that said firm were largely engaged in tlie uuuiufacture of a certain implement called * ller- nian's Improved Lifting Jack,' aiid tliat lie, die said Edwin E. Jones, had authority from said firm to sell said lifting jacks for the said firms, and to contract for and in behalf of said firm for the sale of said lifting jacks by siiid Jeptha O. ALayfield, and did then and there feloniously, designedly, and with intent to de- fraud said Jeptha 0. Mayfield, exhibit to said Jeptha O. May- field a certain printed card of said firm of Mills, Spillmeyer & Co., and which said card was and is in the words and figures fol- lowing: 'Mills, Si>illnieyer & Co., manufacturers of Herman's Improved Lifting Jack, Xos. 308, 370 and 372 "West Third street, Cincinnati, Ohio. 8eiid orders for Herman's Lifting Jack, ia accordance with contract;' and did falsely, feloniously, de- il 220 AMERICAN CRIMINAL REPORTS. signedlj', and with intent to defraud said Jeptha 0. ]\[iiyfiel(l, pretend to saiuid at maturity, the undersigned agrees to pay the expenses of collec- tion, including attorney's fees. J. O. Mavi'iklu. "With intent then and there to cheat and defraud him, the said Jeptha O. Maytield; wdiereas, in truth and in fact, the said firm of Mills, Spillmeyer &Co., were not engaged in the majinfacture of the implement called ' Herman's Improved Lifting Jack,' and whereas, in truth and in fact, said Edwin E. Jones was not then and there the agent of said lirm of ^lills, S])illmeyer ^ Co., and did not then and there have any authority from said firm to sell said lifting jacks for said firm, and to contract for the sale of tlie same by said Jeptha O. Maytield, for said lirm, and whereas, in truth and in fact, the said card, so exhibited as aforesaid and hereinbefore set forth, was not then and there the genuine card of said firm of Mills, Spillmeyer tt Co., contrary to the form of the statute," etc. Section 27, 2 G. & II. 4i5, reads as follows: "If any person, with intent to defraud atiother, shall designedly, l)y color of any false token or writing, or any false ])retense, obtain the sigiiatuj'c of any person to any written instrument, or obtain from any person any money, transfer, note, bond or receipt, or thing oE JONES r. STATE. 221 value, sncli person shall, upon conviction thereof, be impris- oued," etc. The (jmvame)i of the crime consists in obtaining the signatures of any person to any written instrument, or in obtaining from any person any money, transfer, note, bond or receipt, or thing of value. The offense may be committed by two means: first, by color of any false token or writing; second, by any false pretense. The word "token," in its ordinary signification, means "a sign," " a mark," " a symbol." The words *' writing " and " written " include printing, lithographing, or other moilo of representing TOrds and letters. Sec. 1, subdivision nine, 2 Cx. & II., 338. The indictniL'nt in the present case attempts to charge that the signature of Mayjield was obtained to the note by means of a ■ false token, and by pretending that he was the lawful agent of Mills, S_p'dlineijer dc Co., and had authority for and in behalf of said tirni for the sale of said lifting jack. The first qnestion is, whether the printed card set out in the indictment comes within he meaning of the words '" token or writing," used in the statute. Eouvier's Law Dictionary defines the legal meaning of the word " token " thus: " Token. A document or sign of the ex- istence of a fact. Tokens are either public or general, or privy tokens. They are either true or false. When a token is false, and indicates a general intent to defraud, and is used for that purpose, it will render the ofi'ender guilty of the crime of cheat- ing, 12 Johns., N. Y., 202; but if it is a mere privy token, as counterfeiting a letter in another man's name, iu order to cheat but one individual, it would not be indictable. S) Wend., X. Y., 182; 1 Dull., Penn., 47; 2 Const. So. C, 131); 2 Va. Cas., G5; 4 Hawks, X. C, 4-18; (5 Mass., 72; 12 Johns., X. Y., 293; 2 Dev., X. C, 109; 1 Ilich., So. C, 244." We think the token exhibited by the ap]iellant was a general token, and indicated a general intent to defraud, and when ac- companied by the false jiretenses alleged iu the indictment, was calculated to deceive a person of ordinary intelligence and pru- dence. It is very earnestly contended by counsel for appellant that the false pretenses set out in the indictmenc are not sufticient to constitute the crime attempted to be charged. The first objec- 222 AMERICAN CRIMINAL REPORTS. tion urged to this part of the indictment is, that the word " pre. tended" is used instead of the word "represented." In our opinion, the objection is untenable. The word " pretense " is used in the statute defining the crime. The word " pretend " is the verb of tlie noun " pretense." The form of indictment given by Ijicknell in liis Criminal Practice, p. 3-11, uses the word " pre. tense." See Whart. Crim. Law, sec. 214-1. It is next urged that the indictment fails to aver any false pre- tense which was sufficient to induce a person of ordinary caution and prudejice to execute his note for a large sum of money, and we are referred to the following adjudged cases: The State v, 3la note set out in tlie indictment was executed a few hours after the first cannot change its legal char- acter. "\Ye thinlv the pretenses alleged in the indictment were suffi- cient to deceive a ])erson of ordinary caution and prudence. It is true, that many persons would not have been deceived thereby. They might, by reason of their long experience and greater shrewdness, have detected the fraud, or, having their suspicions excited, they w(Mild have communicated to the firm in Cincin- nati. Jjut laws are not made for the protection of the shrewd and business man oidy, but for the entire community. In the enactment of criminal laws, the legislature ado^jts, as a standard of intelligence, neither the highest nor the lowest, but the me- dium. The law oidy requires the exercise of ordinary caution and prudence. Business could not be transacted witlumt placins; confidence in the representations of persons engaged therein. While the law does not encourage blind confidence, it does not expect those engaged in the ordinary afi'airs of life to jidsscss the shrewdness and cunning of the practiced detective. The question therefore is, in such a case as the present, what would a man of ordinary intelligence and caution have done under the facts and circumstances surrounding this transaction? Would such a man have believed and acted upon such pretenses? If he would, the case is made out. For the failure to allege that May field relied upon such pre- tenses as true, and upon the faith thereof, purchased from Jones the right to sell such " lifting jack," and in consideration thereof, executed the note set out in the indictment, we must hold the indictment bad. The judgment is reversed, and the cause remanded, with di- rections to the court below to sustain the motion to quash the MARANDA v. STATE. WATERMAN t'. PEOPLE. 225 indictment. The clerk will give the proper order for the return of the prisoner to the jail of Jefferson county. '■m ml . - •]; li' m If Makanda vs. State. (44 Tex., 442.) An indictment for false protonsos which does not allege that the respondent " knowingly " made the false pretenses is bad on a motion in arrest of judgment. ilooRE, A. J. The motion in arrest of judgment should have been sustained. Knowledge of the false preten o by means of which money or property is fraudulently obtained is an essential constituent of the olfense with which appellants are charged. "Without proof that they knew that the pretense was false, evi- dently they should not be convicted. And although the word "knowingly" is not one of the statutory words used in defining the offense, still as the offense, as defined by the statute, clearly re(]uirc» that it shall be jiroved, we think, by the rules of correct pleading, it should be averred in the indictment. And so it is held by courts of the highest authority and standard commenta- tors. {Itefjina v. PhUjwtts, 1 Car. & Kir., 112; 2 Bish. Cr. Proc, sec. 172.) The necessity for such an averment in the in- dictment has been clearly recognized by this court in the opinion of Mr. Justice Devine in the case of State v. Levi (41 Tex., 5G3). The judgment is reversed and the cause remanded. Iteversed and remanded. Watekmax vs. People. (67 lU., 91.) FonGEiiT: Letter of introduction. A letter of inti-oduction directed "to any railroad superintendent," bespeaking courtesies toward the bearer, has no legal validity and affects no lethal rights, and is not a subject of forgery. Brkese J. This was an indictment in the criminal court of Cook county, against plaintiff in error and one William E. Dun- dee, for forgery. Vol. I. -15 . w i AMERICAN CRIMTXAL REPORTS. The writing alleged to liave been forged was as follow s: The Delawakk & IIunsoN Canal Company, II. A. Fonda, Alhany and Susquehanna DejHd'tment, Su2>erintcn(lcnt. Albany, N. Y., jUajunt 2j, iSjj. To any railroad superintendent: The bearer, T. 11. "Wilev, has been employed on the A. portunity offer. Very resji'y and truly yours, II. A. Fonda, Siipt. Tlie indictment framed upoii this writing contains not a single averment of any extrinsic matter which could give the instru- ment forged any force or ell'ect beyond what appears on its face. Ko connection is averred between the ])arty to whom the writ- ing is addressed and the Chicago, Ilock Island & Pacilic Rail- road Company. Xor is it averred that the prisoner attempted to pass the writing upon that company. The writing, if genuine, has no legal validity, as it affects no legal rights. It is a mere attem])t to receive courtesies on a promise, of no legal obligation, to reciprocate them. AVe are satisfied that the writing in question is not a subject of forgery, and no indictment can be sustained on it, and no averments can aid it. It is a mere letter of introduction which, by no possibility. could subject the supposed writer to any pecuniary loss or legal liability. As well remarked by the prisoner's counsel, conrte- eics are not the subject of legal fraud. The motion in arrest of judgment should have been allowed. To refuse it was error. As no prosecution can be founded on the writing, the judg- ment must be reversed, and the prisoner discharged from cus- tody. Judgment reversed. WILLIAMS V. STATE. 227 "Williams vs. State. (51Ga., 535.) Fouoeuy: I)iij)cr/ect instrument — Indictment. An indictment chavfring respondent with fcrging a bank check payiable to the order of , is had on denuuTcr. A check not payable to bearer, or to tlie order of a named person, is so imperfect tliat it could not defraud any- one. An indictment for foryery, which docs not allege who was intended to be de- fmuded by the forged instniment, is bad on demun*er. The defendant was indicted for the oftense of forgery. In the indictment he was charged witli falsely and fraudulently making and signing a certain false, fraudulent and forged bank check, ill the words, letters and figures, printed and written as follows, to wit: "Xo. 7G. Savannah, Ga., Ilay 2^t/i, iS/j. "Central Railroad and Banking Co., pay to the order of three hundred and sixty dollars. (Signed) «J. Lamak." nie defendant was also, in ctnc of the counts of the indictment, charged with having falsely and fraudulently uttered and pub- lislied as true the forged and counterfeited check above described, knowing the same to be counterfeited and forged, with intent to defraud, l)ut it is not alleged whom he intended to defraud. On arraignment, the defendant demurred, in writing, to the suffi- ciency of the indictment, which demurrer was overruled, and the defendant excepted. The case then proceeded to trial, and the jury found the defendant guilty on the second count in the in- dictment. The exceptions to the charge of the court, and refusal to charge as requested, are substantially embraced in the exception to the overruling of the demurrer, and will be considered together. 1. The demurrer to the indictment was on the ground that the bank check alleged to have been forged was incomplete, and coidd not have defrauded anyone. The check was not payable to bearer, or to the order of any named person, and therefore was incomplete as a bank check, and could not have defrauded the bank or the drawer of the check. 2. In the case of the People v. Oalloway, 17 "Wend., 540, the 1: I ^^^K: ^^^^B ^H|BK' ^K^^*"; ■^^ TT B ■ a, 1 * ' % 228 AMERICAN ClllMIXAL RErOUTS. cases bearing u])ou tliis (juestlon AVcrc reviewed, aiul the juinel- ple to be dednceil from tiieiii i.s, that if the iiistruiuent alleged to have licen forged is so inij)erfect and incomplete that no one caiv be defrauded by it, then the defendant cannot be convicted of tliat offense. 3. Besides, it is not alleged in this indictment that the de- fendant intended to defraud any person by the making, signinir, littering or publishing of the instrument described in the iiulict- ment. The indictment alleges that it was done by the defendant witli intent to defraud, but whom he intended to defraud is not alleged, The court erred in overruling the demurrer to the indictment. Let the judgment of the court below bo reversed. Browx vs. Pkople. (66 111., 314.) FoKGEUV : Variance — Tenor, An indictment for forcing a note purportod to set forth the note according to its tonor. The signature to the note, as stated in the indictment, was, Ills his Otha X Carr. The note ofl(!reil in ev-idonce was signed Oatha x CaiT, IhU, murk. mark. a fatal variance, and the note inadnii.ssible. Tlie word " tenor " binds the pleader to the strictest accuracy. Where the record does not show whether inadmissible evidence \\l""'h was objected to was admitted or not, but the court can see from the record that if such evidence was not fidmitted, there is nothing to sustain tlit} voniid, the judgment and verdict will lie set aside. If the objectionable evidenci' was admitted, that is en-or. If it was not, the verdict is erroneous Ijecaurf there is nothing to support it. In either ciise there is error. "Walker, J. This was an indictment for forgery, found k the grand jury of Warren county against plaintiff in error and one Robinson. Plaintiff' in error was arrested, arraigned, and tried by the court and a jury, found guilty and sentenced to continenient in the penitentiary at hard labor for one year. To reverse that judi;- ment, the record is brought to this court on error, and varions grounds are iirged for reversal. On the trial, the prosecution offered in evidence the instru- i BUOWN V. THE I'KOPLE. 2i>0 'IPfl'fr incut nlli'{,'t'iiveiTe(l that accused '' unhiwfully and feloniously did falsely, fniuduleiitly ninke and foi\i,'e a certain promissory note for the l>;iviiieiit of money, and the signature and mark of one Otha Carr to .said promissory note, i)urportin<^ to be made and executed I)v said Otha Carr. The tenor of which promissory note is as follows, to wit: "AloO.OO. ]>KKWICK, 111., Ainj. 2p, /S/o. "Six months after date, for value received, I jtromise to pay J. B. Drake, or order, one hundred and fifty dollars, with inter- est at 10 per cent. ])er annum till paid. "Witness by II. N. Urown. Otha x Caru." mark. The second count avers the uttering of a promissory note, knowing it to be false, fraudulent, forged and counterfeit, " the tenor of which counterfeited ])romi8sory note is as follows, to vit: Then follows the co])y of a note in all respects similar to tliiit Bet out in the first count of the indictment. The note olfered in evidence purports to have been signed Ills "(ktha X Carr." The difierence hi the manner of spelling the murk. figiiature as described in the indictment, and of that to the in- ftnunent offered in evidence, is the variance relied on by defend- ant below. In "Wharton's Am. Cr. Law, vol. 2, sec. 1471, Gth «]., it is said, an omission of a jiart of the date is fatal under siicli an averment. It is further said, *' but where the indict- ment charges the note to be in purport and eft'ect following. It was held that ' I promise ' was an immaterial variance from ' I promised.' It would seem, however, that the distinction taken in the last case between the averments ' words and figures follow- ing,' and 'tenor and eft'ect,' if such was actually iiitended, is not in conformity with precedents. The word 'tenor' binds the pleader to the strictest accuracy." And for this last proposition, reference is made to I?ex v. Powell, 2 East's Pleas to the Crown, 976. Again, the same author says, in sec. 1476, " An indictment for forgery of an instrument, professing to set it out according to its tenor, should give the names, in describing the instrument, spelled as they appear spelled in the original." And this rule i'l 200 AMKRICAN CIILMINAL RKPORTS. ii]»jiL'tir.s to 1)0 su])i)nrte(l by authority, and we recognize it a< lit'iiig correct. The nufiie is diU'erently Hpelled in the iiulictiiii'iit ami tlio note oilereil in this case, and is nianifestly fulsie within the rule thus announced. We have thus far considered the case as though the note w;u read in evidence, although the record only states that tlie )itn. plo's attorney olVered the note in evidence, to which dcfoiuliiiit's attorney objected, on the ground of variance between the nnto described in the indictment and the note oilbred. AltlidUfih the record fails to show that the note was /ead to the jury, still the question of variance would jierhaps arise in another trial, ami hence we have chosen to decide the (juestion. ]jut if the note was not read in evidence, then the cvidince wh(»lly fails to support the verdict. In such a case there is noth- ing to sui)port the finding. In either case, however, the jiuli;- ment must be reversed. If it was read in evidence, it was error, because of the variance, and if it was not read, then there '> error, as the verdict and judgment have no basis on which to rest. The judgment of the court below is reversed, and the caiue remanded. Judgment reversal L ^kM, ' u w^^ Mpl In V ■ MiLLEB VS. State. (51 Ind., 405.) FonoKiiv : EdiUnce — Election. On the trial of an indictment containing two counts, one of wliidi alleges tii; forging of a draft and the other tlie uttering and publisliing of tLo forj-'il draft as true, it is not error for the court to refuse to require the prosecutor to elect on which count he will proceed to trial. This is a uiattor in tliodi.-- cretion of the trial court. The uttering and i)ublisliing of a forged instrument by the respondent raisc:f no presumption of law that he connnitted the forgeiy. On a charge of forgery tlie ntt<'ring and pul)lislung of the forged instnnnont are circamstances to be weighed by the jury in connection with oilier evi- dence in the case. "WoEDEN, J, The appellant was indicted for forgery, the in- di'ctment containing two counts. The first charged him with having forged the name of Calvin Mullen upon the back of n draft drawn by the First National Bank of Xenia, Ohio, upon the First National Bank of Cincinnati, Ohio, for the sum of MILLKR V. STATE. 231 cidit Ininclred clullai'8, payable to the order of said Calvin Mullen. . Tlio secdiul count charged him with having uttered and jml)- Ilulied U!) true a forged and counterfeited indorsement arties who jdayed ou defendant's billiard tables, in his place of business, did so with the understanding that the loser should pay to defendant the amount charged all the members of the party for the use of the table, and tha': the defendant knew that they were playing under such arrangement, and perinitted them so to play, you should find the defendant guilty." The objection urged to this instruction is, that it directs the jury as to the force or effect of the evidence. "W^e do not so understand it. It simply tells the jury that if, "from the evi- dence," they find certain fa ct9, then they should find the defend- ant guilty. There was no error iu the instruction in this respect, nor in any other, as we have already seen. CONYERS V, STATE. The judgment of the district court will be affirmed. 237 TsoTT.. — People v. Scn-geant, 8 Cow. (N. Y.), 139, is also an authoiity that playing at billiards, where the loser pays for the game, is not gambling. ■i l^ j i'i| 1i ■ l' 1 t n 1 F CoNYERS VS. State. (50 Ga., 103.) Permitting minor to play billiards ivithoiif consent of guardian — Burden of proof. On the trial of an indictment for pennitting a minor to play billiards without the consent of his parents or guardi.m, the burden of proof is on the state to show tiiat the minor thd not have tlu; consent of his parents or guardian. McCay, J. Whilst it is certainly true, as a general rule, that iiiS burden of proof is upon the party who holds the affirmative of a proposition, yet there are many instances in which a con- trary rule obtains. Our code, ,'873, section 37r8, declares that "if a negation or negative affirmation is essential to a ])arty's case, the proof of such negative lies upon the ])arty affirming it." The test is, Does the negative form an essential ingredient in the thing sought to be established? Does the mind fail to agree to the proposition insisted on, so long as the negation re- mains unproven? If so, the proposition is not made out, and the party asserting the negation must prove it. In criminal cases, the law requires that the state shall prove all the essential facts entering into the description of a crime, and, except in a very few special cases, the defendant cannot be put upon his defense, until the state has shown affirmatively every such act. In Elklns v. The State, 13 Ga., 435, this court lays down the rule very broadly, and asserts that whatever 18 made by the statute an essential part of the offense, must be set out in the indictment and proven by the state. The want of consent by the parent or guardian is the very gist of tliis crime. It is not unlawful for men to play billiards. It is not unlawful even for minors to play, if their parents or guardians consent. The want of the consent is the very essence of the offense. There is a class of negations which it is almost impossible to prove af- firmatively. Where the field to be covered by the evidence is so broad as that, the burden would be intolerable upon the public, 1; i^ ;.l 238 AMERICAN CRIMINAL REPORTS. to afford the time necessary for hearing this proof, as wliero it is only j)0ssible to prove that one was not present, by examining a large number of persons who did not see him, or where the proof that one did not do a thing can only be establislied by proof following him from movement to movement, thi-oiiirh a considerable time. But there are negations that are just as ea- sily proven as an affirmative, as where thenegatioTi dejiends ii]H)U a moment of time and a particular place, or is within the knowl- edge of a single person. In the former class, even, the general rule that the proijecutor in criminal cases must jirove all tlio in- gredients of the crime, has, in some cases, been relaxed. As in prosecutions under the English game laws, where one may kill game if he has one of a large nunxber of qualifications, it has been held that it was not necessary for the crown to go to expense and the public to sufl'er the inconvenience of ])roviMg the absence of each of the required qualifications, esjieeially (and this is perhaps the true point on which the exception turns) if the facts lie peculiarly in the defendant's knowledge. This was the holding of the court in The King v. Tamer, 5 Mau. & Sel., 200, and it seems to have been followed in 1 Ry. k Moo., 159; 1 Car. & P., 508, and by several other Eiiglisli and many American cases, though it is certainly true that tlie old cases even on the game laws, are different. 2 Ld. Raym., 1415; 1 Stra., 497; 2 Com., 525; I T. E., 125; 1 East, 613; 1 id., G39, and tlio courts have not always kept in mind the distinction between cases where the negative is part of the description of the oU'ense, and where it is by provision of a subsequent section or by a subsequent act; 3 Dev., 299; 3 B. Mon., 342; 34 ]\[e., 293; 12 Barb., 26; X. II., 8. Our own court has made the exception in the case of an indictment for retailing sjiirituous liquors without license. In the case of Sharj> v. The State, 17 Ga., 290, this court held that if the selling of spirituous liquors was proven, the omis was shifted to the defendant, and that it was not necessary for the state to prove the want of license. This is a strong case, for tho want of the license is a ])art of the description of the offense. We are free to say that we do not think the reasoning of the court in that case very sound, since it is said there that by his plea of " not guilty " tlie de- fendant admits the selling, and asserts that he has license — a line of reasoning which is, as it seems to us, untrue, since tho CONYERS V. STATE. 239 plea of not guilty denies the whole charge. But the case may be sustained on another ground, and by authority. The license is a written authority to the dealer to sell, and the presumption is that he has it in his possession. It is peculiarly within his knowledge. The negative cannot be shown conclusively by the state. It could only \)e proven that no such license was recorded ; but the defendant might have the license and be not guilty, tliougli the license was not recorded. All the proof in thepoioer of the state would be inconclusive, to wit: that no such license was issued. The license is In writing, and cannot be proven by parol, and it is in the defendant's possession, if it exists, and on this ground there are many cases making this special crime an exception to the general rule. Sec the cases, both English and American, above referred to in 1 IJennett's Criminal Cases, and notes, 306, 310; though there are many cases of high authori- ty to the contrary; 2-1 Pick., 380, and the cases there cited. But undoubtedly the general rule is that in criminal cases the burden of showing all the facts necessary to uial-.e out the de- fendant's guilt is upon the state. In rape, the proof must show that the act was against the will of the female. In robbery, that the taking was against the con- sent of the person robbed; in larceny from the jierson, that the taking was without the knowledge of the possessor in the case; opprubious words, that they were iinjyrovokcd, and in the vari- ous acts of trespass against property, as cutting wood, etc., on another's land, that they were without the owner's consent. The books are full of illustrations of the position we have asserted, to wit: that if in order to make the defendant guilty, it be neces- sary to show a negative the burden of showing it is upon the state. Harvey v. Toivars, i Eng. L. & E., 531; 2faij v. The State, i Ala., as when the defendant was indicted for keep- ing a grey hound, not being a person qualified. 1 Str., 60. In the same volume is a case for profane swearing, under the act of G and 7 AVill. III. The act put a penalty of one shilling upon a servant, and two shillings on every other person. The con- viction was quashed because it was not proven that the defend- ant was not a servant. So in Jitw v. Allen, 1 !Moo. C. C, ISi, and Jit,'' V. [iodijers, 2 Camp., 634, in an indictment for killing deer on the ground of another without his consent, it was held that the prosecution must prove the want of consent. See, also, 2i0 AMERICAN CRIMINAL REPORTS. 2 Greenl., 22S; 2 Car. & P., 45; 2 Jones (X. C.) 270; where the doctrine is discussed. See, also, 10 East, 211, where it was liekl that tlie burden was on the crown to show that the defend- ant had not tak«^n the sacrament. In 5 llich., 57, that a prac- ticing pliysician had no license; that one was not (qualified to vote: 9 Met., 2S0. The case at bar, we think, comes within the general rule. The consent of the parent is not reipiired by the statute to be in wri- ting, and does not, therefore, as in the case of license to sell, lie peculiarly within the knowledge of the defendant. That the consent was not given is as well known to the parent or guardi- an as it is to the defendant. AV^e are, for these reasons, of the opinion that the conviction was wrong, under the proof. There ■was no evidence of the want of consent, and this was a material ingredient in the offense charged. Judgment reversed. i ' ^^^ ZooK VS. State. (47 InJ., 403.) Gaming : ludictmeut. Under a statute which pvohihits tlie keeper of a Itilhard tn.ble from allowing a minor to plaj' ou it, tiiul inflicts a fine for each yame allowed to he plnyoil, an indictment which docs not allejre that a game was played, or luiine tin' person with whom t'le minor played, or give any rejison for not nainiii^' him, is had, on a motion to quash. Pettit, J. This was an indictment for allowing a minor to play billiards, in violation of the following section of the statute, Acts of 1873, p. 30: " Sec. 1. That if any person owning, or having the care, man- agement or control of any billiard table, bagatelle table or pii,'eon liole table, shall allow, suffer or permit any minor to play bil- liards, bagatelle or any other game at or upon such table or tables, he shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall, for each game so allowed, suffered or permitted to be played, be fined in any sum not less than five dollars, nor more than fifty dollars." A motion to quash this indictment was overruled, and ex- ceptions taken ; and this ruling is assigned for error. EX PARTE LE BUR. 241 The objections uri^ed to tlic indictment are, that tlie person with wlioni the minor played billiards is not named, nor is any reason or excuse given for not naming him; and that the indict- ment does not show or charge a game was played. This indictment is not specific and certain in contemplation of livw, so as to enable the defendant to prej^are for his defense, because it does not name the person with whom the minor playeil, and a conviction on this indictuient would not be a bar to another indictment charging that the minor played with a per- son named. The statute makes it penal to allow a minor to play a game. The indictment does not charge or show that the minor did or was allowed to play a game. We hold that the objections to the indictment are well taken. 2 G. & II., 410, 412; QuIidiv. The State, 35 Ind., 485; W/iitnei/ v. The State, 10 id., 404; lite State V. JlcC'on/iicl; 2 id., o05; The State v. JVoIand, 29 id., il'2. Many other cases are cited, both in this and other states, to sustain the position taken, but we deem it nunecessary to re- fer to them. The indictment is bad, for not alleging that a game was played, and in nut naming the ])erson with whom it was played, or giving a reason why ho was not named. Tlie judgment is reversed, with instructions to sustain the motion to (juash the indictment. '^f- ' >■-'' i.iK' « 11 m :t mm ^ ■ ■■ 1 i ill 'i Ex Paktk Lk Bur. (49 CiU., 159.) Habeas Coiii'us. FeiUral 2)n$oiH'r in isfatt' jirison. A person who litis been convicted of a crime against the United States by a fedenil court, and confined in the prison of the state with the consent of the state, is deemed to be in tiae custody of the federal authorities. liekase offedoral prisoners h;/ state cotiiis. The courts or judges of the state have no aiithority to release a prisoner upon a habcaD corpus, when the prisoner is in the custody of tlie authorities of the United States, pursuant to a judgment of conviction by a federal tribunal of exclusive jurisdiction in the case. Ai'M.icATioN to ]Mr. Chief Justice "Wallace to be discharged on haheas corjnis, from imprisonment in the state prison of the state of California. Vol. I.- 16 iwm 242 AMERICAN CRIMINAL REPORTS. The return of Tlamnaldo Paclicco, warden of the state prison, shows that in the year 1SC8, the prisoner was convicted in thecir- enit court of the United States for the district of Ore^'on, of the crime of aiding or being accessory to, and of robbing the Uiiiteil States mails, and sentenced to be imprisoned, at hard labor, fdr the term of ten years; that the prisoner is detained by the said Paclicco. under and in pursuance of certified coi)ies of the jiulg. nient and order of commitment, and of a certiHed cojiy t)f a mes- sage from the Hon. O. 11. Browning, secretary of the interior, to the United States marshal for the district and state of Orciroti, designating the state prison of California as the place of contiiie- iiu'tit, and ordering the marshal to remove the prisoner to tlie state prison at San Quentin. The judgment, after naming tlie tvrm of confinement as above stated, concluded with this order: " It appearing to the court that there is no law of the state of Oregon authorizing persons sentenced to be imprisoned by this court, to be confined in the ])enitentiary of the state, it is ordered that the sentence of imprisonment herel>y imposed u])on the de- fendant 1)0 executed by imprisoning him, for the term aforesaid, in the county jail of Multnomah county, in the state aforesaid, until further order." The commitment recited the order in the judgment, and direct- ed the marshal to deliver the ])risoner " to the keeper of tlie county jail of said county of IMultnomah, in the state aforesaid, there to be safely kept by him, the said keeper, in close coiiiine- nient until he be discharged by due course of law, or until fur- ther order." The telegraphic message from the secretary of the interior was as follows: " Wasutngtox, March j, iS6g. " Received at Portland March 3, ISO'J — t) A. M. "To AujKiiT ZiKiiKR, Marshal TJ. S.: "Transport to California penitentiary * * AVilliam Lc Bur, * ^' (Signed) C). 11. Bkowning, Scn-etary:' The copies of the judgment, order of commitment, and tele- gram, were certified by the clerk of the court. F. M. P'uietj, for petitioner: The return docs not show any authority for detaining the pris- oner. The warden is the agent of the state, not of the United States, and it appears by the judgment and the order of connnit- "m!^ EX TARTE LE BUR. 243 ment, that the prisoner was ordered to be confined in the county jail of MiiltnoiuiUi county, Ore^'on, "until further order." That ineiuis until further order of the court, for the power to desig- imte the ]>l!iec of confinement is a judicial function, and the des- ii'iiation of the place is a necessary part of the sentence, as much so as the fixing of the term. The secretary of the interior, being an executive otiicer, l»as no power to change the place of impris- uiiinent desigiuited by the court. Xo order was ever made by tlie court removing the ]irisoner to this state, and, therefore, ho is not lawfidly detained here. But, if the secretary of the inte- rior be held to luive the power to change the place, there is no evidence that he has done so, for the telegram is not authenti- cated by the seal of the secretary's office, nor certified by any one having authority to attest its authenticity. Walter Van Dyke^ United States District Attorney, for re- spondents: A state court cannot issue the writ of haheas corpus, where the party imprisoned is in custody nnder the authority of the United States. If he is wrongfully imprisoned, the federal tri- bunals alone can release him. Ableiiian v. Booth atul the Uni- tcd States, 21 How., U. S., 506. The prisoner is in the custody of the respondent under the au- thority of the United States. The telegram of the secretary of liie interior is sufficient to autlu»rize the imprisonment of the prisoner by the respondent. It is of necessity without a seal, for such a message cannot be transmitted with a seal. The secre- tary has authority to designate places of confining prisoners. 2 Bright. Dig. of U. S. Laws, p. 1(54, sec. 56; id. p. 183, sec. 55. The power of designating the place is an executive function merely, not judicial. AVhen the sentence is passed by the court, its power over the prisoner is exhausted, and all that remains is to execute the sentence. That must be done by executive officers. To hold that the place cannot be changed without an order of the court, would be to render executive officers powerless to act in cases of emergency, such as fires. Wallace, C. J. The prisoner is detained in custody by the authorities of the government of the United States, by virtue of the judgment rendered by the United States court in Oregon, and it is not claimed that the term of his imprisonment has ex- 844 A.Mi;ilICAX CUIMINAL RKPOKT.S. pired. The circuiiistancu that lie is Imitrii^oned at tlio state prison and ill the kcL'j)iii^ of its warden, is of no iinport in this ivjnect for tlieso ai'o but tlio aj^encios and moans of his conHnunient, adopted hy tlie United States by the consent of the state. The petitioner being a ]»risoner held by the authorities of Iho govtsrnnient of the United States, by virtue of the judgment of a federal court of exclusive jurisdiction in the case, it U iiiv duty under the statutes of the state to remand him. I'erial Codu, sec. USO. It is there provided that if the time during which a party may be legally detained in custody has not expired, he must be iv- manded if he appear to be detained in custody '• by virtue of process iss.ued by any court or judge of the United States, in a case where such court or judge has exclusive jurisdiction."' In Alleiaaii v. Booth, '11 How., U. S., 523, the (juestioii of the power of the state courts to deal with jjcrsons detained as the petitioner is, was discussed by Mr. Chief Justice Taney with his accustomed fibility, and it was there held that when the rotuni to the writ is made, and the state court or judge is judicially up. prised that the i)arty is in custody under the authority of the United States, they can proceed no further. " They then kiiuw,"' says the chief justice, "that the ])risoner is witl. ii the domin- ion and jurisdiction of another government, and that neitl writ of /t a /mi (s CO >'j) us nor any other process issued uik. .,o authority can pass over the line of division between the t\, hiv- ereigiities. He is then wiJiin the domain and exclusive juri- diction of the United Statot;. If he has committed an otiense against their laws, their tribunals alone can punish him. If lie is wrongfully imprisoned, their judicial tribunals can release him and attbrd him redress." The petitioner must be remanded, and it is so ordered. Wright vs. Picople. m Mich., 300.) Assault with Intent to Muiider: Writlen verdict construed — rraelke. In a prosecution for assault with intent to murder, the jury brought in the fol- lomng writt^^n verdict: "We find the prisoner, John D. Wrij^iit, guilty of assault with intent to kill 'William Wagner, as charged in the information; :-,;. :*': Wni(;iIT r. PKOPLK. 849 also, thnt tlic Hliootinjjf done liy Writ,'lit whm done imdiT ^m-nt provocation, niul \vi' would rcconniifnd Wm: iirisonor to tlic nicrcy of tlic court." The jii(l),"'. lift''!" ri'iidiiijr flic vi'i'dict iiloud, said, "yon find tlio priHorn'r jjuilty iw fliiuy:i'd ill tlir inforiuiilioii," to which the jury nodded assent; and tiio verdict so given wits recordeil \\h ii gi'iieral verdict (if yuilty, and the jary discliarp'd. On these facts it was A(77, that the findinj,' of the jury couhl not he construeil as a findinj; that the pri-onr-r was truilty of imythintr mom tliiui iis.saiilt and hattery, and that the pntiy of tlio general verdict of guilty ill the record was unauthori/.ed. Kuijoit to St. Cldii' Circuit. Wriirlit was tried ojj w cliariLifi! of iissaiiU witli intent to miiriler one W( (irisoner couhl he convicted under the iiii'iiiin.'ition of assault and battery. Tlie diarj^e heinj^ a<^aiu read to tlieiu (which distinctly instructed them that if the kill- injr, in case death liad residted, would have been anvthirif' less tlmii murder, the defendant was not guilty of the complete oilense cliar that the shooting done bv Wriijlit wag done nnder great provocation, and we would recommend the prisoner to the mercy of the court." The court sentenced him to be im- prisoned in the state prison for seven years. Atkinson Bros, and A. E. C/i(idioiel\ for plaintiff in error. A. R. Avery, Prosecuting Attorney, A. J. Smith, Attorney General, and W. T. Mitchell, for the people. The court held that the written finding of the jury must con- 1 1 240 AMERICAN CRIMINAL RErORTS. trol under the circum3tn of one Arthur Jackson, on the 10th of May, 1873. The defendant pleaded not guilty. The evidence for the state made, in brief, the following case: Sam. Hunter and Steve Cody were playing marbles in the road, and Arthur Jackson was seated on the fence looking on, when defendant came uj). lie said to Jacksor* that he wanted to bite his ears like he used to bite them. Jackson rejdied that he should do no such thing. Defendant said, "Damn you, 1 will bite them anyhow." At the same time he Jumped on Jack?(iii and endeavored to bite his cars. Jackson pushed him off. Ih' then grabbed at Jackson, scratching his face, causing the blood to flow. Jackson said that if a num played with him, he did not ^1 f '^^T^fSf^flPl^lfl '-, X, ■ SMITH v. STATE. 2iT want liim to tear the blood out, and to go off and let hi in alone. Defendant replied, " By G-d, may be you don't like it, and if you don't, YOU need not take it." Jackson told him to go ott' from him. lie advanced on Jackson again, saying he would bite liis oars some, and pulled him oft' the fence. Jackson caught liim by the breeches and turned him over the fence backwards. He carried Jackson's hat over with him. Milton Gill, w'"o was standing hy, said, " Jackson, if you don't mind, you will break that nigger's neck." Jackson said to defendant that he did not intend to let him fall so hard, and asked him if he was hurt. He said he was not. Jackson asked him to hand his hat over. Defendant said, " AVait, damn 3'ou, let me hit you first." lie then handed the hat over, cotemporaneouslv hitting Jackson in the eve. Ho then jjot over the fence and caught Jackson around the neck, who said to him, "Smith, you ain't no man, go away; I could whip you with a hickory." lie replied that it was a '•G-d d — d lie, by G-d." Jackson said, " Smith, a man give me the damned lie in Covington this morning, and I hate for a man to keep on giving n»e the damned lie in cold blood." Here- plied that ''it was r. G-d d--d, h-11 fired lie, by G-d, and if you don't like it, you need not take it." Jackson slapped his face. He said, '' Jncksou, arc you mad?" Jackson replied that he was not. lie then said, " Stay here till I come back." He left and went home, which was ahout two hundred and fifty yards from the place where they were scuffling. Jackson moved away from the fence and sat down in the road. After the lapse of ten or fifteen miinites, he heard the defendant hollo, " Clear the way, you women and children, by G-d.'' He was about fifty yards from Jackson, aiid had two double barreled shot guns. Jackson jumped u]) and told him to shoot, that nobody was afraid. lie placed the gun which he had in his right hand against the near- est paling, and took the other one from his shoulder. Jackson said, "iShoot ahead, here's your mule," and at the same time stepped to the side of and between the palings. The defendant fired. Jackson returned to the center of the road and asked him what he meant. lie replied, " I mean to shoot you, G-d d-n you." Jackson said, "Shoot quick, for I am coming to you," at the same time advancing on him. When Jackson was within thirtv vards of him a second shot was fired, the shot strikinc: Jackson on the right side. Jackson told him to shoot again, as I : .' ■ ■ I 'f. 1 1 '11 2i8 AMERICAN CRIMINAL REPORTS. lie Avas coming at him. The defendant threw down the empfv gun and took the other and half cocked it. Jackson was ad- vancing on him so fast that he pulled the trigger, but the g\m would not go oft', lie cocked it again, but by tliis time Jackson had reached him, and struck the muz^cle of tliegnn. Il went off and the shot lodged in his head. The last shot also struck his left arm. lie seized the gun in his right hand and struck attlie defenda:;t's head. Tlie blow missed his head, struck the gnmiul, and broke the gun in pieces. Jackson had a switch in liis liaml at the commencement of the difficulty, about as large as liis thumb, lie threw it down in tlie road. The evidence for the defense did not materially alter the case made by the state. It tended to show that .Tackson was very violent in his conduct to defendant before the shooting, and tliat he commenced advancing upon the defendant as soon as ho saw him with hh gun, telling him to shoot, and that all three shots were fired under these circumstances. Alt^o, that when Jackson struck at the defendant with the gun he did not miss him, but, on the contrary, cut his liead very badly. Tlie jury returned ■-; verdict of guilty. The defendant inoved for a new trial, because the verdict was contrary to the law and the evidence. The motion was overruled, and defendant ex- cepted. If. D. Ci'pens, by J. J. Floi/d, for plaintift" in error. T. B. Cahnniss, Solicitor General, by Peejdts and IJowcU, for the state. Tuii'PE, J. It has been so often decided as to what the evi- dence must show, to sustain a conviction for the oftense of an assault -with intent to murder, that it is unnecessary to do more than merely to reiterate it here. Had death ensued from the assault, from the circumstances of the killing, the defendant would only have been guilty of manslaughter; he then cannot he guilty of an assault with intend" to murder, when there is no kill- ing. All the ingredients of vuirder, except the killing, enter into and arc necessary to constitute the crime of assault with in- tent to murder. At least, there must be malice, express or im- plied, that would make the assailant a murderer, had he taken life in the assault. If there cannot be murder without malice, there cannot be an intent to murder unless the same element of W-fr BARCUS V. STATE. malice appears. Ileeks v. The State, 51 Ga., 429, and Jaclson V. The State, id., 402. As this case goes back for another trial, tlie testimony will not be discussed here, further than to say that the record shows that the defendant had stopped and put down his i,'mis when the prosecutor started towards him, with threat- eriiiiii; invitations to shoot; that he was coming; to shoot quick; that lie wiv coming to him, etc., etc. The defendant seems to have been but a weakling compared to the prosecutor, who had already shown his complete power to do as he might please with defoiuhuit. Tlie evidence for the defense coi'taiidy makes out a case that would not have been murder had the defendant killed the prosecutor, and it could scarcely have been worse nnder the prosecutor's own statement, if what he says about the first liring l»e stricken out. As to that tiring, it does not appear that tho dcfeiulant shot at the prosecutor, or in what direction he did fire. It is ))robable he did fire at him, but the prosecutor says " ho stepped to the side of and behind the paling.-:." This was before the liring. The defendant was fifty yards off; some, and most of the witnesses, made it a good deal farther. The ]irosecutor then spraTig out, rushed towards the defendant with the threat- ening (loclarations, and with the efibrt tt) do great violence to defendant when he reached him. It was under these circum- stances the other firing took place. ]>ut the matter will be passed on again by a jury, and no further comment on the testi- mony will be made. Jiuhjment reversed. W ! ■ 1 IP Baucus vs. State. (49 Miss., 17.) AssAUi/r WITH Intknt to SIuiideu: Intoit. Where the evklcMict; showed tliiit tlio n'spoi'.dt'iit shot at A. intending to kill iiim, but missed him and iK't'ldcntiiUy hit IJ., a l>y-stander, it was held, that lie was not pii'ty <>f assault witli intent to commit murder on B. hitont luay \n) iiiferrt.-d from tiio act, but tiicri! is no artiticial rule of hiw which r(?quuvs or idU)ws a i>art'.euhir intent tt) be presumed fi'om ^iven facts, where till' undisputed evidence shows tliat no sucli intent was in fact entertained. In assault with iiitiuit to munler, there umst be an intent to kill the person assaulted. Takbkll, J. At tho last March term of the circuit court of 250 AMERICAN CRIMINAL RErORTS. Warren county, tlic jjlaintiff in error was indicted, tried and con- victed on a cliur^e of sliooting at Sandy Mitchell with intent to kill. From the judgment against him the accused prosecuted a writ of error, and asks here a reversal of that judgment upon several grounds not essential to repeat or diccuss. Upon the trial, the right of the city ])olice to arrest vagrants, without war- rant, was nnule a ])rominent point, and is again pressed in tlie argument in this court, but we do not think that questiuu in- volved at present. There is a fatal error, however, in tliis case, and it is this: There is no evidence that the accused sliot at Sandy Mitchell. The proof is, that he shot at Henry Creijflitoa, and according to his own declarations subsef^uent to the shoutinj;, intended to kill him. Upon this point there is no conlliot in the evidence. It is positive and uncontradicted, that he sliot at Henry Creighton, accidentally hitting Sandy Mitchell, an inno- cent by-stander. The verdict is wholly unsu])ported hy the evidence. It is true, that the jury, in response to the instruction for the state have found, in substance, that the accused shot at Sandy Mitchell with the intent to kill and murder him; hut tlie verdict must have been through some misapprehension of law or fact. There is no doubt of the rule, that a man shall he pre- sumed to intend that which he does, or which is the natural and necessary conscijuence of his act; and that malice, in tliis class of cases, nniy be presumed from the character of the weapon used. If the evidence in the case at bar was limited to the mere fact of shootiui; and the strikinnr of Mitchell as the resnlt of the shot, or if the evidence as to the person intended to be killed was conflicting, we might accept the verdict as conclusive; hut the record befcire us leaves no question or doubt. Indeed, it is con- clusive that Creighton and not Mitchell was the person ainiotl at and designed to be hit. To sustain the indictment in this ciise, it was incumbent on the part of the state to prove that the aceui^ed shot at and intended to kill jMitchell, whereas the j>roof is that he shot at Creighton with the intent to kill him. The essential averments of the indictment are, therefore, not only not sns- tained, but absolutely negatived. It follows that the indictment should have charged the shooting to have been at Creighton, and the result is, the judgment must be reversed and the indictment quashed, but the accused cannot be set at liberty. He will be detained in custody to await a trial under another indictment, to STATE V. UNDEllWOOD. be drawn as herein indicated. 13 S. & M., 242; 11 id., 317; 24 Miss., 54; Code, § 2497. Jud'Tinent reversed, and cause remanded, with a recommenda- tion to tlie district attorney to quash this indictment, and in- Btructions to tlie proper authorities to detain the accused, subject to the action of the circuit court of "Warren county. Jiuhjment reversed. State vs. Undeuwood. (.57 Mo., 40.) Homicide : Change of venue — Discretion — Degrees of murder — Self defense — Defense of propeiii/ — Presence of respondent during argument of in- icrlocutori/ motion — Seclusion of jury. Under a statute regrilatiiig chiMinros of venue, one section piwidos that no se- cond change of venue shall be luul. Another section provides that a change of venue shall be had when the judge has been of counsel in the cause. Where in a change of venue the cause was removed to a circuit where the judge had been of counsel in the cause, it wiis held that a second change of venue wa.s properly had, not\vithstanding the provision of the section first mentioned. Whether or not a co-respondent, indicted as an accessory, shall be fii-st tried so that his testimony may be had for the defense en the trial of the principal, is a matter in th.e discretion of the trial court, and the supreme comi Avill not review tl'.e exercise of thai cUscretion where there is no evidence that it hiis been abused. On a trial for homicide it appeared that at the time of the kilhng, the deceased was engaged ui moving a line fence between liimself and respondent. It appeared also that the fence had been built by and belonged to deceased, but that it had been built on respondent's land : Held, that respondent had no right to resort to violence to prevent deceased removing the fence, and that evidence as to the respective rights of the piu'ties to keep the fence where it Wius was in-elevant and inadmissible. Wiere th(! jury finds the respondent guilty of murder in the firat degi'ce, under instnictions properly defining murder in the first degree, it seems that re- spondent would not be prejuiliced by an er'-^neous instniction aa to murder in the second degree. Where the evidence shows that respondent killed deceased with a gun loaded by powder and bullets, the law presumes the killing to be mtentional, and that it is murder in the second degree, in the absence of proof to the contrary, and it devolves upon the defendant to show from the evidence m the cause, to the reasonable satisfaction of the jury, that he is guilty of a less crime, or that he acted in self-defense. In cases of homicide, if circumstances of wilfulness and deliberation are not ' k '; 1 I 1 s t Si fiMMi;.- 1 . • III t i 252 AMERICAN CRIMINAL RErORTS. proved, the law presumes the Idlling to be murder in the second degree only. One who seeks and briups on a difficulty cannot shield himself undoi the ploa of .si'lf-defeiisc, however inuuinent the danger in which ho finds himself m the progress of an atlVay. It is not nccessaiy that ronpoiident should be present in court durijig tlie argu- ment of a motion for a new trial, if he is present when it is finiiUy deter- mined. After the jurj' had retired, two witnesses necessarily passed tlirougli the juiT room to get down stairs, but witiiout any communication with thejuiy; Jlihf, no gi'ound tor setting aside tlie verdict. The atfidavits of jurors are receivable in support of theii- verdict to show that nothing improper occurred during theii* consultation. 'Wagxkk, J. Tliis was an iiulictment for imirder in tlielirst degree, fonnil in the Ealls connty circuit court against the de- fendant and six others, for the killing of one Ilicliard !Monifce. Tlie defendant was charged as principal in the first degree, and the others were charged as being jircsent, aiding, abetting and assisting in the murder. Upon the application of the defendants, a change of venue was granted to the circuit court of Macoii county, and when the case was called for trial, a new judge having in the meantime been elected, who had jn-eviously heen of counsel for defeiulaiits, ii suggestion of that fact being made, the case was sent to Marion connty, in another judicial circuit, for trial. When the case was called, the attorneys prosecuting fur tlie state announced themselves ready for trial, and the defeiulaiit and Samuel Scobee, who was included in the indictment as a co- defendant, moved for a separate trial. Scobee asked that ho might be first tried, and defendi> it demanded that Scobee should be first tried, alleging that he vrntedtho testimony of Scobee to be xised on his trial. The circuit attorney then moved that the defendant be first tried, as he stood charged as ]»riiicii)al in the first degree, and Scobee was only charged with aid :ig and abet- ting. The court sustained this motion, and ordered the prosecu- tion to ])roceed against the defendant, and to this ruling ex- ceptions were duly saved. It seems that the difficulty between Menifee, the deceased, and the defendants in the indictment, had its origin in the removal of a fence which separated the farms of the respective ])arties. The true line was not accurately fixed, but enough was known to render it certain that the fence was placed upon the land of the STATE r. UNDERWOOD. 253 TJnclenvoods, the defendants. IMenifee had built the fence and it belonged to him, and at the time the homicide was committed he, with his brother, was in the act of removing it and putting it upon his own land. To this defendants objected, as it would expose their crops. Defendant and Menifee had had some diffi- culty the evening before, and on the morning of the murder, Menifee brought a shot-gun with him when he went to his work in tearing down and rebuilding the fence. Tlie niiiin witness for the ])rosecution was the brother of the deceased, who was assisting him at the time. lie says that while they were staking otl' the line, he looked out and saw two men, defendant and Scol)ee, and when they saw witness and the de- ceased, defendant started towards them, and then stopped and made a motion to Scobee to go west; Scobee got on his horse and went in that direction, and defendant went south towards Ste- phen Underwood's (his father's) house. The work continued, and in a short time Stephen Underwood came, and he said to the deceased that the boys were not going to let him move that fence. Deceased then said there was a legal way to stop them from mov- ing tlie fence, and the old man -aid he wotild see as soon as he could got the boys and their arms. Stephen Underwood then went towards his house. Witness and deceased then went to another portion of the fence and commenced tearing it down, when, ill about half r,n hour after Stephen Underwood left, he returned, and upon looking up witness, told his brother that he saw Stephen Underwood, AVilliam Underwood, Strother Under- wood, Wesley Underwood (defendant), Frank Underwood, Asa Underwood, and Samuel Scobee. They were about a quarter of mile otl" when he lirst saw them. Scobee and Strother Under- wood were coming from the west until they got to his brother's fence, and then they came up the fence. Stejihen and Frank Underwood were coining up the fence from the south; the other three were coming up about twenty steps from the fence. The old man ordered witness to stop tearing down the fence, but he kept on. They then had an altercation between themselves. Defendant Wesley Underwood started from the edge of some plowed ground opposite llichard Menifee, tlie deceased, with his gun presented towards him, in a position to shoot; Richard then picked up his gun; both fired; the shots were so near together that witness could not tell which fired first. Richard was shot 254 AMERICAN CRIMINAL REPORTS. Hi. . ■ . and fell; lie then raised himself up on his knees and shot again. The Underwoods then ran towards him and were shootiiiif and beating him. AVitness heard some three or four sliots. Some had sticks, some guns and some pistols; saw some three or four blows, could not tell how many. The deceased, after he was shot down, was repeatedly struck with a gun, on his breast, neck and head, and died in a short time thereafter. The shots were mortal. There was no other eye witness on the part of the state, but there was corrobor itive evidence as to the number of shots, etc., by those who were working in the immediate neighborhooil. William Collins was a witness for the state, and he testified that he lived within less than a quarter of a mile of Steplien Un- derwood, and he explained the situation of his farm and the Underwood and Menifee farms, and stated in his testimony tliat the Underwoods had joined on his fe?.ce without permission. To this testimony, as to Underwood's joining witness' fence with- out permission, defendant's counsel objected, and the conrt sus- tained the objection; but the evidence was given in a narrative form, and the remark was made before the witness cuiild l)e stopped. For the defense, Mrs. Amanda Scobec, wife of Samuel Scobee and sister of the defendant, stated that on the morniuir of the murder she started out to the field, and saw her hu.sband and Strother Underwood riding in the direction of where ^^Eenifee was tearing down the fence, and that she went on uj) to the fence and was within thirty or forty rods of where Menifee and de- fendant fonght; that when she got there all the defendants and Richard and John ;^[enifec were there; liichard and .lulin were tearing down the fence. Slic then speaks about tlie dilliciilt}' that took place between John Menifee and her father, and after that Richard Menifee then said: "There is "Wesley (defendant), and by God I will kill him, anyhow," and picked up his double barreled shot gun and fired at Wesley as he j)icked uj) liis gun. Strother said, "For God's sake, Dick, don't shoot." J.)it'k shot Wesley, and Wesley shot D!ck. They fired two shots eacli; Dick was killed and AVesley was badly wounded, and pulled open his shirt and said he was killed. The witness then testifies vhat she and her husband did what they could to administer to the comfort of the deceased while he lived, and in the continuation of her testimony she says that IH h I' vu STATE V. UNDERWOOD. 255 Dick aiul "Wesley eaclihatl a double barreled shot i^un; that there were four shots fired in all, and tliat after the tiriu<^, AVesley and Dick came together and clenched and fell. .John Menifee then rftiiup and pulled "Wesley oil' from Dick; Wesley picked up a (run and turned on John and struck him, and then turned on Dick and struck him several times with the gun. Franklin Un- derwood, another brother of the defendant, testified that he had been at home sick, and was in the house when Wesley, the de- fenilant, came and got his gun, and said the Menifees were pull- iii<' down tlie fence, and started oft' in that direction. Witness then put on his coat and foUowed after him; he saw the whole encounter, and gives essentially the same version of it that Mrs, Scobee does in her testimony. Some other evidence was intro- duced, which was unimportant. The defense then ottered to prove that the Underwoods had joined their fence to Menifee's with tlio latter's permission. Tliis evidence was objected to by the state, and the objection sustained. Fertile state the court gave twelve instructions; the sixth, eeventh and eighth are the ones objected to in this court. The sixth instruction told the jury that if the defendant killed Menifee with a gun loaded with powder and bullets, the law pre- sumed the killing to have been intentional, and it was murder in the second degree in the absence of proof to the contrary, and that it devolved upon the defendant to show, from the evi- dence in the cause, to the reasonable satisfaction of the jury, that ho was guilty of a less crime, or acted in self defense. I>y the seventh decliiration the jury are instructed tliat if they believe, from the evidence, that Itichard Menifee was engaged in pulling down his fence, and that the defendant came to where said ]\Ienifee was at work, armed with a loaded gun, for the pur- pose of compelling said Menifee to desist from pulling down the fence by force, and approached said Menifee in such a manner as to give ^lenifee reasonable cause to apprehend a design on the part of defendant to kill him, or to do him some great bodily harm, unless he desisted from pulling down the fence, and there was reasonable cause to apprehend immediate danger of such de- sign being accomplished, then the killing of said Menifee by de- fendant was not justifiable homicide. The eighth instruction tells the jury that if they find, from the evidence, that defendant and deceased had a difliculty which re- r 256 AMEUICAN CRIMINAL REPORTS. im II suited in the death of the deceased, and that defendimt com. mcuced the diilicultj, or l)roii^i,dit it on by any wilful aiul unlaw- ful act of hi.s, committed at the time, or that he voluntarily uiulof Ills own free will and incliiuition entered into the ditllculty, then there is no self defense in the cause, and they shoidd not acimit on that nd instruction num. bercd six, which told the jury that if they should Hud, iVuiu tlie evidence, that liichard Menifee was engaged in pulling down liis fence, and that Wesley Uiulerwood came to where said Menifio was at work, armed with a loaded gun, for the purpose of cum- pelling said Menifee to desist from pulling down the fence by force, and approached said Menifee with his gun held in a posi- tion to shoot, then the killing of said Menifee by said WcbIcj' Underwood was not justifiable or excusable homicide. On the ])art of the defense, the court instructed the jury: First, that defendant had a right to carry his double-barreled sliot-gnn, aiul that if they found, from the evidence, that whilst so carrying it, he made no threat, menace, or demonstratio'.i to shoot Iticliiinl Menifee, and if they should further lind, that said Menifee, with- out being threatened by defendant, or menaced by him in any liostile manner whatever, ])icked up his gun and declared that he would kill defendant, and then and there presented his gun, luad- ed with powder and bullets or shot, at defendant, in a shooting l^osition, then in such case, defendant had a right to shoot said Menifee in self defense, and even to take his life in order to save his own; scco"dly, that if the jury believed, from the evidence, tl'iit defendant, at the time he shot and killed liichard ^[enifee, had reasonalde cause to apprehend a design on the ])art of said liichard Menifee, to commit a felony upon him, or to do him some great personal injury, and that there was reasoiuible cause to ap- prehend immediate danger of such design being accomjilishcd, then, in such case, defendant had a right in defense of his own person to shoot and even to kill the said Richard Menifee, uidess the defendant sought and provoked the difficulty; thirdly, tliat defendant had a right to go, either alone or with others, to the point where Richard Menifee and his brother were tearing down the fence, for the purpose of remonstrating with them, in a peaceable numner, to dissuade them from pulling down the fence, '' '■ '^'^t. I STATE c. UNDKRWOOD. 2^7 and if tlic jury Ijulieved, from tlie evidence, that whilst (Icfeinhint or others were so cii^ai^ed, in a peaceable niamicr, reiuoiistratiiig acainst the tearing away or removal of said fence, Richard Men- ifee picked up his gun, loaded with jmwder and bullets or shot, declaring that he would hill defendant, and then and there pre- senteil his gun at defendant in a hostile manner, then defendant Imd a right, in the necessary defense of his own person, to shoot and kill the said llichard Menifee, and the jury ought to lind a verdict of ''not guilty." The jury rendered a verdict of murder in the first degree, and it is to reverse the judgment entered therein that this appeal is presented. There is no merit in the point raised, that the second change of venue was improperly granted, and that the circuit court of Marion county had no jurisdiction. Aside from the fact that no exceptions were taken to the order, the statute settles the question conclusively. The act in refer- ence to criminal practice {'2 AVagn. Stat., p. 1097, §15) provides that when any indictment or criminal i)rosecution .shall bo pend- ing in any circuit court, the same shall be removed by the order uf such court, or the judge thereof, to the circuit court of some county in a difl'erent circuit, in either of the following cases: First, when the judge of the court in which such case is pending, is near of kin to the defendant, by blood or marriage; or, second, when the offense charged is alleged to liavc been committed against the person or jiroperty of such judge, or some person nea- of kin to him; or, third, when the judge is in anywise in- terested or prejudiced, or shall have been counsel in the cause. The 20th section of the same act declares that whenever it shall he within the knowledge of a court or judge, that facts exist MJiich would entitle a defendant to the removal of any criminal cause, on his application, sxicli court or judge may make an order for such removal, without any application by the party for that pur|wse. And although the 27th section says, that in no case shall a second removal of any cause be allowed, yet this court 1ms decided that a second change of same may be granted where the judge has been counsel in the cause, notwithstanding the above provision. State v. Gates, 20 Mo., 400. It is true that in this last case, the judge who awarded the change of venue had been the prosecuting attorney, but that makes no dift'ereuce, as Vol. I. — 17 vm- 25S AMERICAN CRIMINAL RKl'ORTS. the IStli section ap])lic8 justly and ])ri>porly to every judge, wlietlier he has heeii counsel for either the plaintill'or (loiVinliint, It is next insisted, that Scohee should have heen first tried, i;i order that the defendant ini<^ht have had his testimony ii[)()ii tlm trial. I'ut upon this ]ioint there is nothing to show tliut the court exercised its discretion unsoundly. It is the |tnicticc in criminal cases, where a eodefendant has heen included in the in- dictment l>y mistake, or facts and circumstances are shown, liy which it is apparent that no verdict of j;'uilty can he ohtuined against liim, to allow him to he lirst tried, so that he may be re- stored to his rights as a witness. The exercise of this jxAveris usually called forth where there is a jttijit trial. Where, in tlie case of a joint trial, the evidence in hehalf of the prosecution is all in, and there is no testimony imjdieating one of the defend- ants, it is then the duty of the court to permit the verdict to be immediatcdy taken, ac([uitting this one, and then he will be a competent witness for the rest. If there is some evidence, though slight, against the defendant whose testimony is thus de- sired hy the others,, the court may, in its discretion, submit liis case to the jury at this stage of the trial; and if he is acMpiitted, he will he a competent witness. 1 IJish. Crim. Troe., ^ %i\ State V. liohertu, 15 Mo., 28 ; Fitzgerald v. The State, l-i id., iXZ. In this case the defendants were severed in the trial. Xo facts were hrought to the attention of the court, which made it imper- atively necessary to comj)ly with defendant or Scohee's demand, and the court simply exercised a discretion which we will iiotre- vise. Of course a person indicated as an accessory, or jirincipal in the second degree, may he put upon his trial hefore the prin- cipal in the first degree is tried or convicted, hut that question has nothing to do with the ruling of the court hero. The ccnirt very properly excluded the testimony tending to show that defendant joined his fence with that of the deceased hy permission. Ko such issue was raised in the case, and if tlie permission had heen granted, it would not have justified or ex- cused the ofi'ense. The defendant had the riirht to remonstrate with the deceased against his act, whether the fence was joined hy permission or not, but he had no right to resort 'to violence, in order to pre- vent its being torn down. Upon thiK point, the court gave an instruction presenting the (question in favor of the defendant, in STATE r. UNDERWOOD. 950 tin; f^trongcpt li^lit. The evidence of Culliur, iiljuiit the defoiul- ant joining' to liis fence witliout leiivc, was not called out by tho iiivseciitioii. The witness was ^ivini^ Imh testimony in the inir- rativo form, uiid nsed the remark before any objection was nuidc. As soon as it was objijcted to, tlie conrt promptly rnled it out. It eoultl not he withdrawn, for it was already uttered, and if the de- fLiuliint C(»nsi(lered that it was in anywise injurious to him, his eouiisel should have procured an instruction telling the jury to dis- rci'iu'tl it. The 0th instructiut if cir- eninstauces of nndice and premeditation are not proved, the law presumes the killing to be murder in the second degree oidy. This (piestion was fully discussed in a quite recent case in this conrt {St'ftc V. Ilolmcs; 5-t ]\[o., 15.3), and the settled doctrines in tins ctate reviewed and reiterated. The Sth instruction is based on the well settled doctrine that a party who seeks and brings on a difficulty cannot avail himself of the right of self-defense, in order to shield himself from tho con- sequences of killing his adversary, however imminent the dan- ger in which he may have found himself in tho progress of tho 260 AMEKICAX CRIMINAL REPORTS. affray. StaU v. Sturr, 3S Mo., 270; State v. Zinnaj, 52 id., 40. Tlic 9tli iiiwtruction is predicated upon the hypotlicsis that there was u mutual and \olnntary combat. If that were ?o, de- fendant could not rely on self-defense. For, where parties bv mntual nnderotandin^, enrisoner was in jail, the attention of the conn,-el in the cause was called by the court to the causes ashigueil fur a new trial, and there\i])on it was suggested by the jiroseeutiiii,' attorney that Ihe prisoner .shouM be brought int(t court; tlio court then announced tliat it \rould not be necessary, as no actinii A\ould be taktni on the motion it that time; but that the wurt, with a view of understanding tlie legal (piestion, desired a refer- tMice to certain autliorities ridicd on, and also the view of counsel thereon. Autliorities were read, ;uiil the counsel, both for the state and for the defemlant, statt'' to furnish it with any authorities they might have, bearing oil ii k'giil (juestion involve-' in the motion for a now trial, and i\Iso to state their views eoncerning the same; but no farther ;ietioinv!Us taken; no ruling was made, and nothing transpired Iwvini,' any reference to the ])rogress of the triid. AVheii tlio time arrived for the court to proceed with the determination of tlie motion, the defendant was jtresent, the final argument was tliou iimdt.', and the court acted in his presence. This ]>oint iiiibt lie rulolu'(I vy the adidavils of the t vo men !^^•■-;Mselves, and by the slici'ill' and his dej)iity, ane facts are ])eri'ectly evident without regard to the ailida- vitsuf the jurors. Hut I do not think that the court erred i'.i receiving the allidavits of the jurors. The rule is ])erfectly set- tled, that jurors speak through their verdict, and they cannot bo allowed to violate the secrets of the jury room, arid tell of any partiality or nnsconduct that transpireil there, nor si)eak of the iiietives which induceil or (,)perated to produce the verdict. 13ut 1 W ■ \ I 1 ' It 263 A5IERICAN CRDIIXAL REPORTS. tlicy may testify in support of tlieir verdict, that no (.listiirljinif iiiUnonco was brou^'ht to bear upon tlicin, and that they were not interfered or tampered with. This que^?tion was ehibitratelv considered, and all the leading authorities collattMl and reviewed in Woodiourd v. Laiellt, 107 ^[at^s., ioo, and the doctrine was declared to be as above stated. I think the court did not exercise its discretion unsoundly in refusing to sustain the motion in this respect. Upon an exam. ination of the wliole record, I have discovered no material enor. Jmhjmcnt affirmed. TJie other judges concur. Jones vs. CoMMoxwicAi/rii. (7.") Pa. f^t., 40;'..) HoJiiciD]: Ditttiurtion hcfinrii iiiiinhf in iltc Jirst inul vtitrdcr in fhe i^icoid (U'f/nes — Dilihvrdtiun oiid jinmiilitdtiun. Tlie n's])on(lf'iit i)]i'ii(li'(l ^i'uiKy to ;iii imliitniriil for miinlcr. In iinDnlriiio' with till' .stiitnlf, the trial court ln'anl ('viilrin.'c ol' tin' (;ircuiiistaii I's cif ihf case, and ail.judfi'od tlic n'spoudi'iit fiuilty ot luurdiT in tin' lirst d.'jrr'C. A rciiui'st liiiviii;; Imth niadi' for .^pi'cial lindiii/^'s, and tur liliii;,'' tin' trstiuKniy (in whitli thii iindinyn wen' l)a.-3 his crime wiis murder in tlic iirst clc<^rcc. In tliis respect the It'ai'Mcd jiulge of the oyer iuid terminer had sufficient evidence liiscify his lindin;!? of the decree, Jjut ample time for retlec- tiuii iiiiiy exist, find u prisoner may seem to act in his right mind, and from a cunseious purpose; and yet causes may ail'ect Ids in- tellect, ^\^ III f reilection, and hurrying onward his unhinged iiuiul tu rasli und inconsiderate rei-^olntions, incompatible with the deliberation and ])remeditatit)n delining murder in the first degree. When the evidence convinces us of the inability of the prv .; r 1o thiidc, rellect and weigh the nature of liis act, wo 111.,' !: /--Late before we ])roiiounce n])on the degree o; his oiicnse. That reasonable doubt which intervenes to j)revi nt a fair and huuest mind from being satisfied that -.t deliberate and jiremedi-' tated purpose to take life existed, should throw its weight in the scale to forbid the sentence of death. Intoxication is no excuFO furcriiao; yet when it so clouds the intellect as to deprive it of the puwer to think and weigh the nature of the act committed, it may juvvent a convictiun of murder in the iirst degree. The intent tu take life, with a full and conscious knowledge of the jiurpasc to do so, is the distinguishing criterion of murder in the tirst degree ; anlc:id, if we do not consider well the v'ases in which it has lieeii uttered. In the Cominonwedlth v. ()'JI((i'(f, tried in 1TD7, ! Lief Justice JNIidvKAX said: ''What is the meaning of the (Vurdti (lclil)erately and premeditatedly i Tlie Iirst implies >jmiin degree of reilection. Tlie ])arty must liave time to frame the de- sign. Tlie time was very short; it cannot be said to be done njdlly. The legislature must have put a diilerent cniistruetiou un the words deliberately and ]»remeditatedly. If hi- had time to tliiuk, tlii'ii he had time to think he would kill. If you arc 111 opinion he did it deliberately, with intention to kill, it is mur- der in tho iirst degree. If he had time to thiid<, and did intend to kill, for a minute as well as an hour, or a day, it is siitlicient." The correcti'.ess of this charge to the jury will not be doubted, if weexaiiiiue the circumstances, and yet this is essential to under- stand it properly. O'llara was a journeyman shoemaki'r, sitting ^aid to him: " 1 have 111 I I M I . ,1 264 AMERICAN CRIMINAL REPORTS. Ijcen tiillviug iiLout you hclow, tliis hour." *' Yes," said Tlaskins "about the iivo slieep you stole." Thereupon O'llara iinmeiU. atclij left lii-> Work ujH)n the bench, took u}) a shoemaker's knife by hiri side, went up to Aitkins, and stabbed him in tlie IjeHv. The act was not thoughtless, for the prisoner had time to liiv down his work, take up tlie knife, rise and walk up to his friend, and to strike him in a vital part with an instrument of deiitli. ITpon every princi])le of Iriman action, we must concluilo, uimIct tliese circumstances, that O'llara intended to take Aitkiiis's lifo, t)therwise the tliont^hts of men never can be deteriMiiicd frum clear ami distinct acts evidenciiii,' the purpose of the mind. There was irritation, it is true, heii^'htened by the previously oxistiii" story about the sheep; but it was without any just cause or pr(jV(;cation to take life, and, tlierefore, evidenced a heart iiialii,'- uant, and ready to execute vengeance even uj)on a friend, in u inoii.ent of wicked j)assion. In such a case, a moment was siiOi- cient to form and deliberate u])on the purpose to take life, and jtremeditate the means of executing it. ]>ut these words of tlie chief justice are sometimes wrested from their application ami apj)lie(l to cases where reason has been torn up by the roots, and judgnu'iit jostled from her throne. Another case, often (pioted and misapplied, is that of llicliard Smith, tried before I'resideut ]iiish, in ISIO. Smith had become intimate with the wife of Cajttain ('arson, and had a dillieulty with him in his own house. lie returned with ^Irs. Carson, and went with her n[) into the parlor. Carson came up unarnied. and ordered him to leave. Smith had armed himself, and held one hand under his surtout, and the other in his breast. Carson told Smith that he had come to take peaceable possession of his own house, and the latter must go. Smith said to Mrs. Carson, " Ann, shall 1 go'f' SIu; nsplied, " No." Smith moved into the corner of the room, Carson following him, and telling him he must go, at the same time letting his arms fall by his side, and saying he had no weapon. UiH)n this. Smith drew a jiistul from under his surtout and shot Carson thntugh the head, threw down his pistol and ran down stairs. In this state of faets. Judge Hush, charging upon the subject of delibenition, said: "The truth is, in the nature of the thing, no time is ilxed hy law, or can be Ilxed, for the deliberatitui re(|uired to constitute the crime of : airder." Speaking, then, of premerlitation, lie JONES V. COMMONWEALTH. m 1; ; ; i ■ ' savs: "It is cipiallj true, both in fact ami from experience, that no time is too short for a wicked man to frame in his mind the scheme of murder, an wife, and the old wouian had got it. Looking, then, at the state of Jont->' mind, from the 10th mitil the 10th of dune, and down to the very moment be tired the pistol, anrenu'ditation. It a]>pears to have been rather the sudden impui-" uf a disordered hrain, weakened l>y potations of laudanum and sjiirits, and id' a disordered mind, led away from reason and judgmtnt by dwell- iuiT upon the conduct of his wife, infliuenced by his continued state uf excitement. It ])resents a case ot the preparatioi. of a wapoii.aiid an undelined ])urj»ose of viuleneo to s«'iiu one,where the time for I'etlection was ample; but whc!^ the frame of uiiud l|«n| iPT 1 f ' 208 A^IEinCAN CRIMINAL RErORTS. was waiitiiiiij, wliicli would eniihlc tho prisoner to l)o fully con. sciourt of his ]Hirj)ose, or to resolve to take the life of the deceasotl with (leliheration and ])renieditation. Yet it was clearly murder, done without sutllcicnt provocatitni, and without nocetjsity, and in a frame of inind evincing recklessness and that common law malice, which distinguishes murder from numshuiujliter. There M'us error, therefore, in ascertaining the degree, and sentenciii<' to death. The judgment of the court of oyer and terminer of Luzerne county is reversed, and this court ])roceeding now to determine, U])on the same evidence, the degree of the crime whereof tlic said AV^illiam S, Jones is convicted by liis own confessiDU, now finds and declares that the crime of the said William S. .hnies is murder in the second degree, and gives judgment accdnlinirlj, and forasmuch as the said AVilliam S. Jones is conHned in tlie public jail of Luzerne comity, distant herefrom, it is fnrtlier ordered that the record, together Avith this finding and judgment bo remitted to the said court of oyer and terminer of Luzerne county, with a direction to the judges thereof to proceed to pro- nounce sentence upon tho said William S. Jones, as for murder in the sec(»nd degree, according to law, and for such term of im- prisonment at labor, as they, tho said judges, shall adjudge to bo a fit and proper punishment for his said otlensc. McCuE Vd. CoMMONWKAiyrU. (78 Pa. St., 185.) iroMicmF.: Kiukme to show motive — Ikgvee of murder — I'nictii'c, On a trial for fckniioiis lioiiiiiidc, iiiiy cMilcnci' tcndiii!; to Amw that tin' ii'siwiul- f'lit was ji'iiloiis of tho deceased is admissiljle i\s teiidin<; to sliow a motive. On a trial for fi'loiilous lioinicide, no preKuniption ainses from the IdlJiiii,', of lui of- fense iiiL^lier liiaii imu'der in tlic second defiree. Tho fiicts in this c;ise /((■/(/ s\illicient to sustain a venlict of j,'iii]ty of miinlerin the first degrt'e. Where t,he record docK not show atfinnatively that liefore sentence was \m- nounced tho i-espondi'nt was a«ked if he had iuiythiiiff to say why seiiti'iico should not be pai-•^ed upon him. sentence will he reversed and the in'isoniT rouKUided to i)0 bontencod afresh, hut the verdict is not allected. AoNKW, C.J. We thiidc tho assignments of error in this case fail to eliow any ground for reversal, except of tho senteneo of McCUE V. COMMONWEALTH. 269 the court of oyer niid tcnuiuer. It was certainly competent to show, that tlic prisoner and the deceased had viL-ited tlie sanio woiimn, and to follow this by evidence, that immediately after the lidiiiicido, the prisoner referred to the fact that he warned the (Iceoased to let her alone, that she would be a curse to any one, and now his words had come to j)a.ss. Jealousy is among the stroni^ost of the human passions, and it certaii.ly was for the jury to determine, in the absejice of any other assignable motive, whether it was the cause of the prisoner's .act. The deceased and the i»risoner had been apparently upon good terms, and lived toi,'etlier as single men. The witness, Amelia Wertman, testitied that she was engaged to the deceased, and that the ])risoner had visited her, and jiroposed to her to run away. If nothing had hoen secretly rankling in his heart, the shooting under the cir- cumstiuu'cs stated was singular and scarcely to be accounted for. The eviduiice of intoxication at the time of the shooting is very elight, and the degree of intoxication must have been very little. Afterwards he ai>j)ear8 to have been a good deal more so, though not excessively drunk. There was no evidence that the deceased liad used threatening langufii^e or acts towards the prisoner. Hence the answer of the count to the tifth point was correct. The facts were referred to tlie jury. The onl}' material (piestiou is, whether the evidence in tlie case contained the elements, or " ingredients " of murder ill the first degree. It is certainly true, that the commonwealth must establish the existence of these elements, otherwise no pre- sumption arises from the killing, of an offense higher than mur- der in the second degree. I'ut if the evidence may reasonably admit of the conclusion, that the murder was wilful, deliberate and premeditated, it is for the jury to pronounce upon tlie degree of the crime, and a court of error will not reverse. In giving an interpretation to the act of February, 1870, we have said, if there have appeared in the testimony the ingredients to consti- tute murder in the first degree, our jjower ceases. AV\* do not Bit hero to hear the case .as upon a motion for a new trial, to de- termine where the weight of evidence lies, but " to determine whether tlie ingredients necessary to constitute murder in the first degree shall have been proved to exist." These being proved, the jury must determine the guilt or innocence of the prisoner. G'nmt v. Comma iiwealtfi, 21 P. F. Smith, iOS. # IM)' '■• , 270 A^IKUICAN CllLMlNAL REPORTS. i 1 This Icjuls us to iiuiuiro into tlie circimistmiccs of tlio killinj. I)iit oiie witness, Cliiu'les McCJiirty, was ]»reseiit. Ilia iiccountuf tlio iilliiir :.s coiu'i.sc luul clear. On Sumlay, October '_'.'>, ],s74 ]\r(r( 'arty was with tlie ])risoiier, wlio invitctl liim to ('(.nie iiiti) the lioiise wlierc he and the deceaiied lived. On ^oin^ in, i)ietci' the deceased, Avas lyinf^ in a hunk, a])i)arently asleej). ^Mclhie, the ]>ri.w and tookii drink of wine. McCue arney, you have jtut ( iie of them into me;" and ap])roached ]\[c(!ue. Mc('ue raised the l)istol, and Dieter knocked it out of his hand, closed with Mo- Cue, threw him down, and chokeil him until lMc(3ue gave up. The ])istol was ])icked up and found cocked. One load wns discharged, two loads renuiimd in it, and the fourth cliaiiiln'i' seemed not to have been charged. These are the im[i()rt:iiit facts bearing upon the shooting. The act was clearly unj)rov()kcd aiiil needless. The deceased was unarmed, and had made iKt threats or demonstrations against ]\[cCue. If what he said when lie jumped U]>and ran out may be construed as idle bravado, it was neither justilication nor excuse for the shooting. The ])ist()l was loaded with, liiree charges; it was within four feet, or six, as another witness stated, of J)ieter's front side, atul was dischari,'0(l right at him, the ball penetrating the I'ver, a vital organ; ami the prisoner raised it again to discharge it. AVhat then must we say of an act so ])lainly directed at the life of another, so un]m)- Yoked and so barbarous, done with a deadly wea[)on, under no circumstances of rage or passion, produced by any reasunablo McCUK c. COMMONWEALTH. 271 cin.-ic of j)ri>V(»cati(iii. (^Icarly, there wis suflicieiit time to think, (luliliemtu iiiul prcnioditiite the net; us elcjirly tlie iU't wnt wili'iil mill iiiti'iitioiiiil, 1111(1 tlie iiistrmiieiit used n deiidly one, iiimed at 11 vitiil piii't, M'liere deatli was the ])n)1)al)le and natural conse- (iiRiico of the act. What other intention, than an intention to kill, could he rationally inferred from the whole eonduet of the jirisoiier? The motive may he ohscure, indeed, may not he fiitlioiiit'd; hut the lU't was there, plainly and fully ohvioiuj to the senses, and the ellect of it elearly ojten to the prisoner's own miiiil. The ingredients of the crime of murder in the lirst de- <;ree were all there, however inscrtitahic may he the causes which moved the prisoner to commit the deed. AV'hcn all the elejuentti of the crime are present, and when there can he hut one rational iaferoiice from the act itsiilf, retrihution cannot he avoided, hc- oiiiise tlie motive lies hidden and unrevealed in the heart of him uiily who could disclose it. It is true the time was short and tlic hullet swift, and God alone knows the motive; hut the time was not too short, or tlio iiiesseii^'or of death too speedy, to tahe from the i)risoner a con- fciousiiess (tf the true nature of his act. Of this, thcref<»re, the jury must judge, i'liey had f^round for their verdicc a7ul their Cdiiehisioii, that the ])ris()ner intended to kill, and wilfully, and with doliheratioii and ])remeditation shot Dieter, was iu)t irra- tiiiiiul or plainly unfounded. The circumstances indicated ''a Micked and de])rave'.l disjxjsition, a heart fatally hent on mis- cliief.'' The act wa^' not more siuhlen than that of OMIara, who killed Aitkins, and liad less ])rovocation than liis. Coininon- m-dlth V. D'lTuiu, App. t(» 7 Smith's J.aws. O!)-!. AVithuut iuktptiiig all Mie lan^'iiau^e of Chief Justice McKkan in that case, 1 iiuiy use that of .Iudt,'e SruoNo in Cathmrt i\ The Common- v\(ilth, 1 Wrii^ht, II L': "If the killin-^ was not accidental, then iiiiiliec and a (hjsii^n to kill were to he ])resumed from the use of a ileiully weapon; for the law adoi)ts the common rational helief tli.it a man intends the usual, immediate aiul natural conse^ ^ 1.0 1.1 Li|2jg |25 m Ui 12.2 £ Ufi ■2-0 u M |Li2|U|>4 < 6" ♦ Photographic Sciences Corporalion 23 WfST MAIN STRMT V»ISTIR,N.Y. 145M (716)t72-4S03 : 'f t^ 1 Ea , »■ i ff ^f 272 AMERICAN CRIMINAL REPORTS. But there is one error for which the sentence of the court must be reversed. It does not appear from the record that the pris- oner was asked before sentence, why sentence of death should not be pronounced upon him. This is a fatal error, and affects the merits of the case. It is necessary to ask the prisoner this, that he may have an opportunity, before the penalty of death he visited upon liim, to plead in bar of the sentence any matter suf- ficient to prevent its execution. lie may have found out some good reason why the trial was not legal, or he may plead a par- don, or supervening insanity. The question and the answer that lie hath nothing to say other than that which he hath hefore eaid, or this in substance, must .appear in the record before the sentence can be pronounced. Vrine v. The Commonwealth, C Harris, lOi; Doiujhcrty v. Commonwealth, 19 P. F. Smith, 291. In this case the question may have been asked in fact, but it does not apjiear in the record, and as it is a matter of substance, we must treat it as not having been done. In all high felonies, and especially in cases of murder, the presiding judge should see that the record is made up properly, before the term is over. The sentence will be reversed, in order that the case may he sent back, and an opportunity afforded to the prisoner to plead in bar of it, but this error will not reverse the trial and convic- tion. JexoeU V. Comvwmcealth, 10 Harris, 9-1, 102. The sentence of the court of oyer and terminer in this case is reversed, and it is ordered that the record be remitted to said court, with an order of procedendo to proceed and sentence the prisoner afresh, in due order and process of law. IE ■ tlfl n ilW m^k H BeKRY V8. CoJrMOXAVEALTir. (10 Bush, Ky., 15.) Homicide : Confessions — Erroneous charge — Dangerous weapons — Self-de- fense. A witness called to prove confession made by the respondent in a certain con- versation, wlio testifies that "he could not remember all the convei-sations that took place; a gi-eat many tliin^irs were said in tJie conversation that he did not remember," will not be allowed to testify to what he does remem- ber. A confession cannot be proved by a witness who does not remember the substance of all that was said in tlie same conversation. BERRY t'. COMMO;^ WEALTH. 273 Wlmfc is a dangerous weapon is a question of fact and not of law. A charge which assumes facts as proven is en'oneous. It seems that if respondent agreed to fight and did fight the deceased, and while fighting, something occun-ecl to create a reasonable belief in the respondent tliat he was then in danger of death or great bodily harm from deceased, and if respondent then on account of such fear killed deceased with a knife, it will be homicide in self-defen.-io, and excusable. Peters, J. Appellant and Joseph Sampson, between wbom iwry words had passed, l»y mutual consent, engaged in a person- al conflict, in svhicli Sampson was stabbed and killed. Appel- lant was indicted for homicide, found guilty by a jury, and the court below, after overruling his motion for a new trial, pro- nounced judgment of death against him, and, for a reversal of that judgment, this a]\»eal is prosecuted. Thomas "Wilson was introduced as a witness on the trial by tho attorney for the commonwealth to prove confessions made by appellant in relation to the homicide, in a conversation with ono Henry ^[artin, in the hearing of Wilson, while he was guarding appellant, prior to his examination before the court for inquiry. On being interrogated by the attorney for appellant, "Wilson stated that " he could not remember all the conversation that took place; a great many things were said in the conversation that he did not remember." The attorney for the commonwealth then asked him "to state what he did remember that Berry said." To that appellant's attorney objected; but the court overruled his objection, and permitted AVilson to answer the question; to which ruling of the court, appellant by his attorney at the limo excepted; and whether or not the court erred to the prejudice of appellant, in permitting the question to l»e answered by "Wilson, will be first considered and disposed of. The rule is well settled, that if the prosecutor attempts to a* lil himself of the confessions of the prisoner, he must take all that lie said at the time on the subject. Greenleaf says, " In the proof of confessions, as in the case of admissions in civil actions, the whole of what the prisoner said on the subject at the time of making the confession should be taken together." This rule is the dictate of reason as well as of humanity. The prisoner is supposed to have stated a proposition respecting his own con- nection with the crime; but it is not reasonable to assume that Vol. I. — 18 :=l-l77?.? ' - ' 274 AMERICAN CRIMINAL REPORTS. t I K.i the entire proposition with all its limitations was contained in one sentence, or in any particnlar number of sentences, exclud- ing all other parts of the conversation. As in other cases, the meaning and intent of the parties are collected from the whole writing taken together, and all the in- struments executed at one time by the parties and relatint^totlio same matter are equally resorted to for that purpose. So liere if one part of the conversation is relied on as proof of a confes- sion of crime, the prisoner has a right to lay before the court the whole of what was said in that conversation; not being confined to so much only as is explanatory of the part already proved against him, but being permitted to give evidence of all that was said upon that occasion relative to the subject matter in issue. 1 Greenl. Ev., sec. 218. If the witness called to prove the confessions of the prisoner says he does not remember all the conversation, and that a great many things were said in the conversation which he did not re- member, and is still permitted to testify without even stating that he remembers the substance of all that was said at the time on the subject, it is obvious that the rule is violated, and thelm- mane part of it disregarded. The conrt below therefore erred in admitting "Wilson to testi- fy as to the confessions of the prisoner, and for the same reasons, the evidence of Henry Martin as to confessions was incompetent. We do not understand the order of the court in reference to the challenge of jurors as the attorney for appellant seems to un- derstand it. That order reads as follows: "The following ad- ditional jurors were taken, to wit: John Miller, Thomas IkiIIcw, Josejdi Turner, Fleming Shelton, Madison Shelton, Eli Smith & Jolm Woodson, and James Taulbee were challenged hy the commonwealth." Somejurors included and named in this order were certainly taken, because it is so stated in express terms; who or which of them were taken on the panel must be determined by the gram- matical and rational interpretation of the whole order. Let the words of the sentence be slightly transposed so as to read thus: " The following additional jurors, to wit, John Miller, Thomas P»allew, Joseph Turner, Fleming Shelton, Madison Shel- ton, Eli Smith, were taken; and John Woodson and James Taul- bee were challenged by the commonwealth." This senteuce cou- BERRY V. COMMONWEALTH. 275 tains every word tliat is in tlic order and not one more; the words composing each are identically the same, and every word has its appropriate and ordinary meaninp;, and everyone of common nn- derstanding who sliould read it wonld know that the six j^^tersons first named in the order were taken on the jury, and the two last named were challenged. Whereas, if the construction contended for be allowed, the two words " were taken " must be wholly re- jected, as no meaning could be given to them if the attorney's interpretation prevails. The character "&," representing the conjoining word "and," immediately following the name Eli Smith, denotes that something is to be add*;d to what preceded; which addition may be " and John Woodson and James Taulbee were challenged," etc., which is consistent with both the rules of grammar and the propriety of speech. To the first instruction, given on motion of the attorney for the commonwealth, there seems to be no available objection; but the second is erroneous and prejudicial to appellant, for it not only assumes as proved that the knife was a dangerous weapon and was concealed from the deceased, but it confines the apprehen- sion of the danger of death or great bodily harm on the part of appellant to the time when he agreed to fight the deceased, in- stead v,' also extending it to the time when the stabbin0; Jief/. v. Bull, id., 22; lieg. v. liodll, id., 18G; liiij. v. Vincent, 9 id., 91; lie,c v. JIuri'tf<, 7 id., 5S1. But in cases of homicide, and in others where analogous reasons exist, those witnesses who were present at the transaction, or who can give direct evidence on any material branch of it, slioiiM always bo called, unless, possibly, where too numerous. If tliere is any other admissible reason, none has yet been passed upon, and none has been presented which could apj)ly to the case be- fore us. If some one were to come forward and assert his pres- ence when he had not been seen or noticed by others, there might be room for questioning his position. JJut where there is no doubt or dispute as to the fact of presence, no such question can arise, and the only objection then will be, that he may not be favorable to the prosecution. I>ut this is no answer, any more than it would be if a 8ubscrii)lng witness stood in a similar posi- tion. As explained in Ilurd v. Peojde, 25 jVIich., 4(J(5, and in the English cases there reterred to, a ])ublic prosecutor is not a plaintiti''s attorney, but a sworn minister of justice, as much bound to protect the innocent as to pursue the guilty, and helms no right to sui)press testimony. The fact that he is compelled to call these witnesses, when he may not always find them dis- posed to frankness, entitles liim, when it appears necessary, to jjress them with searching questions. Jieg. v. Hall, 8 C. k P., 745; Re(j. v. C/ufj)7nan, 8 id., 558. J>y' this means, and by lay- ing all the facts before the jury, they are quite as likely to get at the truth as if he M'ere allowed to impeach the witnesses who disappointed him. Any intelligent jury will readily discover, whether a witness whom the prosecutor has been compelled to call is fair or adverse, and can make all proper allowance for bias, or any other influence which may affect his credit. If tliere is but a single eye witness, he could not be impeached, and yet the danger of falsehood is quite as great, and the chances of its LYNCH f. COMMONWEALTH. 2S3 correction much less tlmn where there are two, niul both nro called. And if such a witness need not be called by the jiroBecu- tion the defense cannot imjieach him, and must either call him, and run the risk of finding him arejndiced by the argument that they have omitted to prove what was in their powei", and must have done so because they dared not call out the facts. There is no fairnef- in such u practice, and )• ]>r.>secutur should not be permitted to resort to it. He is not resj)onsible for the shortcomings of his witnesses, and he is responsible for any obstacle thrown in the way of clicit- iuj,' all the facts. The judgment must be reversed, and a new trial granted. The respondent to bo remanded to the custody of the sheritF of Sag- inaw county. Coom;y and Cuuistiancv, JJ., concurred. Gkavks, C. J., did not sit in this case. Lynch vs. CoMMomvKALTir. (77 Ta. St., 2C'.) Homicide : Provoctitlon — MamlaugUtcr — Insciu ity — Summon nigjitfij. Any error in tliis Ciise in the suninioiung of the juiy held cured by the statute of luuciulnu'iit. Wliere the iJrisoiu.'r, who lived \\\i\\ Ilia sLstor, a iniuTied woman, went homo late at nif,^it luid, heiiriiig a noise in his sister's room, became suspicious tliat somptiiint,' wrontj wa.s f^oinj^ on; and, after listening awiiile, becoming con- \inced that his suspicions were well founded, took out his knife and opened it, broki; opi'n the door, and found liis sister in the room in her niglit dress, anil dccciised in tlie bed, and, being greatly em'aged, killed the lululterer, it Wiis held, a,s a matter of law, that this was not such provocation as reduced the killinjf to miuislaugiiter. 11 seems tiiat seeing a miuried sister in the act of adultery is not such provoca- tion as to reduce the killing of the adulterer to manslaughter. Where insanity is relied on as a defense to a chiu'ge of murder, the defendant must satisfy the juiy tiiat he was insane at the time of the killing. A doubt as to liis sanity is not sutHcient. Read, C. J. By the second section of the Act of the 10th of April, 1867, it is made the duty of the jury commissioners, president judges, or additional judges of their respective dis- tricts, to meet at the seat of justice of the county at least thirty I' •, 284 AMERICAN CRIMINAL REPORTS. t;," t, days before the first term of the court of connnoii jdeas, in every year, and select the jurors agreeably to the provisions of said section, who are to serve as jurors in the several courts of such county during that year. The names of the persons so se- lected shall be placed by them, or a majority of them, in tlie proper wheel, in the mode and manner directed by law. Tlie third section describes how the jury commissioners and sheriff shall draw from the proper jury wheel the ditt'erent panels of jurors. The precepts in this case, and the venires for the grand and petit or traverse jurors, were issued on the 2d of April, 1S72, and on the loth of the same month, were returned in due form by the sheriff" and jury commissioners, by wliom the names of the grand and traverse jurors were drawn from the jury wheel in due form of law. The error assigned in both cases is the same; the clerical error of using the words "commissioners of said county," instead of "jury commissioners." Everything else in the whole proceeding was right, and the alleged error was not discovered until several months after the trial. These alleged defects or errors are cured by the o'dd section of the Criminal Procedure Act of the 31st of Ik[arch, 18(10, wliich enacts that " no verdict in any criminal court shall be set asiJe, nor shall any judgment be arrested or reversed, nor sentence de- layed for any defect or error in the jn'a'('ij)e issued from any court, or the venire issued for the summoning and returning of jurors, or any defect or error in drawing or retui-ning any juror or panel of jurors, but a trial or agreement to try on the merits, or pleading guilty on the general issue in any case, shall Lea waiver of all error and defects in or rel.ative or appertaining to tlie said precept, venire, drawing, or summoning and returning of jurors." Ambrose E. Lynch was indicted for the murder of "William Iladfield, on the night of the 12th of June, 1872, by stahbing liim with a knife, and was tried in July, of the same year, and convicted of murder in the first degree. The circumstances at- tending the murder are few, and may be told very brietly. The sister of the plaintift" in error lived in a small house in Alle- gheny City, of whom the defendant Lynch was a guest. Late at night Lynch came in by a side door, and was in only a few minutes when he heard a noise; listened, and heard a creaking; LYNCH t'. COMMONWEALTH. 2S3 took out his knife and opened it; he put hie shoulder to the door and shoved it; it did not go in the first time; put his shoulder to it the second time and it went in, and he 3aw his sister get- tinfoutof bed. lie struck the deceased twice in the back, in the bed, with his knife, and a third time, when on the floor, in (he breast. This last was the mortal wound, of which Iladfield died between twelve and one o'clock the same night. We have omitted the profane and blasphemous language made use of by tlie defendant Lynch. ^Ye have read over, with great care, the very able charge of Judge Starrktt, who explains very fully to the jury the differ- ent degrees of felonious homicide, murder in the first degree, murder in the second degree, voluntary and involuntary man- slaughter. This brings us naturally to a part of the charge following this explanation, which is assigned as the fifth error. It is evident, from the language used, that the prisoner's counsel was endeav- oring to reduce the crime to that of voluntary manslaughter, with which the court certainly did not agree. " It is claimed," said the learned judge, " by the prisoner in this case, that on coiuir to his sister's house at a late hour in the night, he heard O O CD ^ a noise in her room; suspected that something wrong was going on there; listened awhile, and becoming convinced that his sus- picions were well founded, he took out his knife and opened it, ])ut his shoulder to the door, forced it in, and found his sister there in her night dress, and the deceased in the room with her; that he was greatly excited and enraged, and in the heat of pas- sion thus generated, he stabbed the deceased twice in the back and once in the breast. Assuming all this to be true, does it amount in law to suflicient cause of provocation to reduce the killing to manslaughter? We are of opinion that it does not; that there is nothing in these circumstances, as they are claimed to exist, by the prisoner, that would reduce the grade of the of- fense to voluntary manslaughter. It is the duty of the court to say, as a matter of law, what fact or facts will amount to suffi- cient legal |)rovocation if they u/o found by the jury. In other words, it is for the jury to find what the facts are, and for the court to say what effect shall be given them. Assuming, then, the facts to be as claimed by the prisoner, in this regard, we say that they do not amount to sufficient or legal provocation, such •^i ' I- '"»< 1 . / '' I , i'T 286 AMERICAN CRIMINAL REPORTS. as would reduce the grade of a felonious homicide to man- slaughter. In all this there Avas clearly no error. The third error as- signed is, to the answer of the court to the defendant's first point which was, " that if on the night of the killing, defendant found or supposed he found, the deceased in bed with defendant's mar- ried sister, and was thereby so much excited as fur tlie time to overwhelm his reason, conscience and judgment, and cause him to act from an uncontrollable and irresistible impulse, the law will not hold him responsible." This seems very vague and uncertain, but the court say, "as the point seems to amoiint to the proposition, tluit if the pris- oner was temporarily insane at the time he did the cuttintj, he is not guilty of any legal offense, it is affirmed as an abstract principle of law. If the defendant was actually insane at the time, this of course relieves him from criminal responsibility, from whatever cause the insanity arose. But the jury must not confound anger or wrath Avitli actual insanity; because, however absurd or \in reason able a man may act when exceedingly angry, either witli or without cause, if his reason is not actually dethroned, it is no legal excuse for viola- tion of law." There is no error in this answer. The fourth error assigned is to the answer to the defendant's second point, which is: "That if the jury have a reasonable doiibt as to the condition of defendant's mind, at the time the act was done, he is entitled to the benefit of such doubt, and they cannot convict." As to the second point, the court said, " the law of the state is, that when the killing is admitted, and insanity or want of legal responsibility is alleged as an excuse, it is the duty of the defend- ant I J satisfy the jury that insanity actually existed at the time of the act, and a doubt as to such insanity will nut justify the jury in acquitting upon that ground. The law presumes sanity when an act is done, if no insanity is shown by the evidence, and when it appears a man was sane shortly j)rece(ling the act, and shortly after, the presumption of sanity exists at the time of the act, and no jury have a right to assume otherwise, un- less evidence in connection with the act convinces them that the defendant was actually insane at the moment the act was com- mitted. This point is refused, and rightly, and it needs no ar- RAFFERTY v. PEOPLE. 28T miment to show that thp court were entirely correct in their ruling and answer. Tlie sixth error is not sustained, for it is clear the ingredients necessary to constitute murder in the first degree were proved to exist, and in determining this to be the case, we have reviewed both the law and the evidence. Sentence affirmed and record remitted. ! '1 ri Kafferty vs. People. (69 m., 111.) Homicide : Arrest — Warrant issued in blank. On a trial for murder, where evidence was given by the respondents that tlie horaicido was comuiittvith whom it had Ijeen left has, altiiough regular on its face, no legal foire or validity whatever, but is an absolute nullity; and if an of- ficer is killed in attempting to nuike any arrest under it, the oSense is but niansliuighter. Scott, J. dissenting. McAllisteu, J. The plaintiff in error having been found jjuilty upon .an indictment, for the murder of one Patrick U'Meura, and sentenced to suft'er thn j)enalty of deat!,, has caused the evidence, together with the rulings of the court and exceptions taken, to be preserved in a bill of exception?, and brought the record to this court for review, upon writ of error. Various errors have been assigned, among which is the exclu- sion of proper evidence, and overruling his motion for a new trial. "We propose to consider but one question presented, and that is one vitally att'ecting the merits of the case, and which we can- not disregard without overriding a jilaiii and well settled rule of law, based upon a foundation no less solid than the natural rights of personal liberty and security — rights held sacred by the coiuniou law, and recognized and protected by constitutional euactineuts. MMHHBMI 288 AMERICAN CRIMINAL REPORTS. ' . fu h -i; i t l f'; ■ ; :■: . : U :, , 1?' ' i • f '. 9 i ' ^(..- ' |:: ;• ['\ '1 ' ill I ■ ^: ; ■' ', ■I" ■ 'i ' • ■ \ - I'i (■if The record contains evidence tending to show that the liomi. cide was committed by the prisoner in resisting the deceased who was a policeman of the city of Chicago, whilst engaged in connection with another policeman, whom he was aiding, in tlic act of committing an illegal and wholly unjustifiable invasion of plainfiff's liberty, by attempting to seize his person and take him off to prison, without any authority in law so to do. The circumstances, which the evidence tends to prove, were briefly these: At a little after midnight of the night of the 4tli and in the early morning of the 5th of August, 1872. the pris- oner was sitting quietly and peaceably by a table in a saloon when O'Meara, the deceased, and another policeman of the name of Scanlan, came in. O'Meara immediately ])ointed the pris- oner out to Scanlan. The prisoner upon seeing O'Meara, ad- dressed him in a friendly manner, asking him to take soniet]iin<' to drink, or a cigar, which was declined. Scanlan then went di- rectly up to the prisoner, tapped him on the shoulder, and told him he had a warrant for him. The prisoner denuvnded the reading of the warrant, which was done, and the prisoner ap- parently submitted to the arrest; but immediately threatened to shoot the first man who should lay a hand upon him. O'Meara, who came with a slnng shot hung to his wrist, stationed himself at the outer door to prevent prisoner's escape, while Scanlan kejit himself in position to guard a back door. All this occurred in a brief space of time; and while O'Meara, with a slungshot suspended from his wrist was thus guarding the door which led into the street, the prisoner shot him with a pistol, inflicting a mortal wound. There is not the slightest prc- tense in the case that the prisoner had been accused or suspected of having (jommitted any felony, or that he, at any time, was in the act of committing a misdemeanor, or even any violation of a city ordinance. The facts appearing from the tendency of the evidence are, that the homicide was committed while the de- ceased was assisting in the arrest of the prisoner under the cir- cumstances stated. Xo attempt was made by the state's attor- ne}', on the trial, to show that the prisoner had been charged with the commission of any felony, or to prove that either of the policemen in question liad in their possession, at the time, any lawful writ or warrant authorizing the prisoner's arrest. But the counsel for the prisoner caused to be produced and RAFFERTY t\ PEOPLE. 2S9 identified the supposed warrant which the policeman had, and upon which the arrest was made, and establislied, by undisputed evidence, that police sergeant Hood had in his drawer a number of blank summonses and warrants, which had been signed by police magistrate Banyon, and which the sergeant had been ac- customed to fill up in the absence of the magistrate, and use, from time to time, as exigencies might require. That from these blanks he, on Sunday, August 4, 1872, filled up the one in ques- tion, putting the prisoner's name into it, in the absence of the magistrate; and to avoid the appearance of having been issued on Smiday, it was dated the 5th of August. This paper was delivered to Scanlan, and he and O'Meara proceeded, as the evi- dence clearly sliows, to hunt for the prisoner all that Sunday niclit, with tl;e intention of arresting him on that pretended pro- cess, as soon as midnight was passed, if they could find him. Wlien the supposed warrant was introduced in evidence, and the testimony showing how it was brought into existence was given, the court, upon the motion of the state's attorney, ex- cluded the warrant and all evidence relating to it, from the jury, as incompetent; to which the prisoner's counsel excej)ted. Tlie supp(»sed warrant, as filled out by the sergeant, was di- rected to any constable or policeman of the city of Chicago, commanding them to take the body of one Christopher Ilafferty, and bring him forthwith before the magistrate, unless special bail should be entered; and if such bail should be entered, then to command liafl'erty to appear before such magistrate at eight o'clock A. M., on the 10th day of August, 1S72, at his office, etc., "to answer the complaint of the city of Chicago in a plea of debt for a failure to pay said city a certain demand, not exceed- ing one hundred dollars, for a violation of an ordinance of said city, entitled an ordinance for revising and consolidating the general ordinances of the city of Chicago, passed October 23, 1S65, to wit: For committing a breach of the 2^(^ficc^ and mak- mjan improper noise and diistxirhance in said citi/, or for us- ing threatening or ahusive language towards another j^erson, tending to a breach of the peace, in violation of section 29 of chapter 25 of said ordinance, and hereof make due return as the law directs. "Given under my hand and seal this 5th day of August, 1872. "[seal.] A. H. Banyon, Justice of the Peace.^^ Vol. I. — 19 w^^^mgi 1 i^l^l -]ftff '^H sIh8 - "'li' 1 *iVi ! * 1 [ " "i^ffS ' i M ' 4 ( K ! } I ^'i . ' \ t ^'^ 290 AMERICAN CRIMINAL REPORTS. i !«.'' The sixth section of chapter eleven of the charter of Chicago (Gary's Laws, 114) declares as follows: "In all prosecutions for any violation of any ordinance, by-law, police or other re^ii. lation, the first process shall be a summons, unless oath oraMr. onatioii he made for a loarraiit, as in other cases^ And by section 1 of chapter 33 of ordinances (Gary's Laws, 306), it is provided that the several members of the police force "slmil have power to arrest all persons in the city found in the act of violating any law or ordinance, or aiding and abetting in any such violation." It is clear, beyond doubt, that there was not the iliglitest au- thority in Scanlan and the deceased to arrest the prisoner, unless it can be found in the supposed writ or warrant, which the court excluded. And it cannot be denied that the legality of the arrest of the prisoner was a material question in determining the char- acter of the homicide; for it is a well established rule, that where persons have authority to arrest, and are resisted and killed in the proper exercise of such antliority, the homicide is murder in all who take part in such resistance. And, on the other hand, it is equally well settled, that where the carrest is illegal, the oftcnse is reduced to manslaughter. Foster, 270; Hale's P. C, 405. If, therefore, it be conceded that the warrant was legal, then, inasmuch as the policeman had no authority to arrest the pris- oner without it, the production of the warrant in evidence was necessary in order to a conviction for murder. But if it was, to all intents and purposes, illegal and void, then the supposed warrant and the testimony showing its nullity, were eoinj)etent and proper for the accused, in order to show that the character of the homicide was manslaughter and not murder. "We have seen that, by the express provisions of the charter of Chicago, no process of the kind in question could have been lawfull}' issued by the magistrate himself, without an oath or affirmation made for tlie warrant as in otlier cases; and vet, we find blanks, signed by the magistrate, put into the hands of a sergeant of police, filled out by him and used as legal process with which to arrest the citizens of the state, Avith fnil knowl- edge, as we must presume, on the part of the magistrate and sergeant, that they were so put into use, without the reqnired oath, and in violation of law. Such conduct is reprehensible in RAFFERTY v. PEOPLE. the higliest degree, and it is a matter of no astonishment that tuch tragical results followed. But when so filled out, tho pnpor was an absolute nullity. It did not issue in the ordinary course of justice, from a court or magistrate. It did not issue from the magistrate at all; because, when it went from his con- trol, it contained no authority, express or implied, to arrest and imprison Ilatlerty or anybody else. The law on this subject is clear and explicit. " But if the process is defective in the frame of it, as, if there be a mistake in the name of the person on whom it is to be executed, or {ft/ia raune of such 2^<-'i'^07i, or of the officer, le inserted viltUout au- thonti/, or after the issuing of the process, or if the officer ex- ceeded his authority, tho killing of the officer in such case by the party would be jnanslaughter oidy." 2 Arch. Cr. Pr. and PL, 242. "It is a general rule that when persons have authority to ar- rest or imprison, and, using the proper means for that purpose, :ire resisted in so doing and killed, it will be murder in all who take part in such resistance.'' Foster, 270. But three things are to be attended to in matters of this kind; the legality of the deceased's authority, the legality of the manner in which he ex- ecuted it, and the defendant's knowledge of that authority; for, if an officer be killed in attempting to execute a writ or warrant invalid on the face of it, or if issued toith a blank in it, and t/ie Ihnk afterwards filled vp^ or if issued with an insufficient des- cription of the defendant, or against the wrong person, or out of tlie district in which alone it could be lawfully executed; or if a private person interfere and act in a case where he has no author- ity by law to do so, or if tho defendant have no knowledge of the otHcer's business, or of the intention with which a private person interferes, and the officer or private person be resisted ur killed, the killing will be manslaughter only." 1 JIale's P. C, iC5. See also Ilouslnv. Barrow, (i Durnf. and East, 122; Rav. Hood, 1 Moo. C. C; 1 East P. C, 110, 111. Koscoe, in his work oii Criminal Evidence, 09S, says: '"If the process be defective in the frame of it, as, if there be a mistake iu the name or addition of the part}', or if the name of the par- tij^ or of the officer, he inserted vntliout authority, and aftt-r the muliig of the process, and the officer, in attempting to execute it, be killed, this is only manslaughter in the person whose lib- erty is invaded." : ( j . r, MM 292 AMERICAN CRIMINAL REPORTS. "'PfeUl ' ^ :;;i ■■ H m. Such, undoubtedly, is the law, and the evidence excluded would bring the prisoner's case fully within it. Ills name Mas inserted in the warrant by the sergeant of police, after it liad been delivered to liim by the magistrate, and consequently witli- out authority. These facts, if found by the jury, should deter- mine the character of the homicide to be numslaughter, unless the proof showed express malice towards the deceased. 3 Greenl. Ev.,p. lOG, sec. 123; Jioberts v. The State, U Mo., 138. Xo authority has been cited, and we hazard nothing in saying that none can be found which would justify the exclusion of this evi- dence under the circumstances of this case. The accused had the legal right to have it go to the jury, because it was material in determining the character of the homicide. This was a ques- tion exclusively for the jury, and as to which we do not wish to be understood as expressing any opinion. For this error the judgment will be reversed and the cause remanded. Judgment reversed. Scott, J. I cannot yield my assent to all the reasoning of the majority of the court. It seems to me the rule announced may be liable to an improp- er construction. An officer is not boiuid, at his peril, to judge whether the writ he is about to serve is, in fact, legal, or whetli- er the magistrate, wlio issued it, was guilty of misconduct in not complying with all the provisions of the law. It would he requiring too much of him to so hold. If the opinion of tlie court can be construed into holding a contrary doctrine, I do nut concur in it. The general rule is, the officer may rightfully ex- ecute, or assist in the execution of any process, regular on it* face, without putting his life in jeopardy at the hands of offen- ders against the law. Any other rule would be unreasonable. There can be no question, the law is, if a party in resisting an unlawful arrest commits a homicide, the crime will be man- slaughter and not murder. It is always, however, a question of fact, to be found from the evidence. In this view of the law, it would have been proper, no doubt, for the court to have permitted the jury to consider the evidence tendered, however slight it might be, on the question whether the homicide was in fact committed in resisting an unlawful ar- rest. COFFMAN V. COMMONWEALTH. Tlicre is no pretense tlie deceased was, himself, about to serve any process, and it may be the jury will find that he was not even assistiiJi; Scanlan to arrest the accused when the fatal wound was inflicted. If so, the evidence will be immaterial. CoFFMAN vn. Commonwealth. (10 IJiwh, Ky., 4U5.) Homicide; Confessions — Eiroiieous chnryes — Mmislaughter — Self •defense — Death from suryical operation. ^Vhere the prnsecution have proved declarations of the respondent relative to the homicide by a witness who states that he did not lieai" all that respond- ent said at the time, the resjwndent has a right to prove by other witnesses who were present all that he said at the time tending to exonenite himself. A charge which enumenites the fiicts which the evidence tends to prove is erro- neoiis. Tlie charge should point out the facts necessary to be found, and then leave to the counsel to argue and the jury to determine whether or not tlie evidence proves these facts. It is not necessary that resjwndent should be without fault in order to reduce the killing of deceiu^ed by a blow of the fist in a sudden quarrel to man- ^ slaughter. In order to excuse a homicide on the ground of self-defense, it is not necessary that there should be immediately impeniling danger. If the respondent be- lieved, and had reswonable ground to believe, that there was immediate im- pending danger, and he had no other apparent and safe means of escape, he had a right to strike, although in fact there was no danger. In cases of homicide, if an operation is perfonued on the deceased, such as an ordinarily prudent and skdful surgeon to be procured in the neighborhood would deem necessaiy, and such operation is jwrformed with ordinary skill, the resjiondent is responsible for the death, although the operation and. not the wound made by him caused the death. In cases of homicide, if an operation is perfonned on the deceased, such as would not Iw deemed necessary by such orilinarily prudent and skilful surgeon as can be procurcd in the neighborhood, or if it would have been deemed neces- sary but wa.s not performed with onlinary skill, and death results from the operation and not from the injuries uiflicted by the respondent, the respond- ent ought to be acquitted, even though the injuries inflicted by liim might eventually have proved fatid. CoFEK, J. Having been found guilty of manslaughter, and sentenced to confinement in the penitentiary for eight years, for killing John Harrison, the appellant seeks a reversal of that jiiilgmeut on two grounds: first, that the court erred in exclud- ingrimportant legal evidence offered by him ; and second, that the court erred to his prejudice in instructing the jury. ' , v'^ "1 \i ! P' '. U % 204 AMERICAN CRIMINAL REPORTS. 1. A witness for the commonwealth ]irovccl tleclarations maile by nppdhmt relative to the homicide, but stated that he did nut hear ail that the appellant said at the time; and ai>pol]iviit oileieil to prove by other witnesses who were present at tlio time ami heard the words proved by the commonwealth's Avitiieijs, other Btatements made in the same conversation, tendin*,' to iiialve mi; tlie defense. This was objected to and excluded; bntuliilewe regard the evidence as competent, if the declarations testitiedto by the witness for the ap])ellee were introduced by t!ie nonnnoii. wealth, yet as it does not appear who broui^ht out tlic evidence of the declarations, we cannot decide that the court erred in ex- cluding the evidence offered by appellant. 2. The instructions given are nearly all objectionable becaufc of an attempt made to enumerate the collateral facts wliicli the evidence tended to prove, instead of being hypothecated u])on tliu facts necessary to constitute guilt or to nudce out a defense. The objection to an attempt to enumerate the facts whicdi tlic evi- dence tends to prove, instead of basing the instructions on tlie facts necessary to be found by the jury, is that it uiuiccessaiily lengthens the instructions, and is on that account ealculiited tu confuse and mislead the jury; and it is liable to the further oh- jection that by giving prominence to the facts enumerated, other facts not recited seem to be subordinated, and may on tlmtat- count be overlooked by the jury; or they may conclude that a« the court has referred to a part and omitted to mention other facts which the evidence tends to prove, such facts M'cre deemed by the court of no importance. Instructions ought, therefore,!'^ a general rule, to be based only upon such facts as must be fomul by the jur}' in order to establish guilt or to make out a defense, thus leaving to counsel to argue the evidence tending to estah- lish the essential facts, and to the jury to decide how fur the evidence establishes them. The jury were told in substance, in the second instruction, tliat if the appellant ami the deceased had a sudden quarrel, ami without Jit itlt on his part, appellant in sudden heat and passion, and not to defend himself from immediate, 'imj^cndliuj (ucl threatened danger, struck the deceased and knocked him down, and he was injured by the fall and died from the injury, they should find the appellant guilty of manslaughter. This instruction does not correctly lay down the law of self- COFFMAN V. COMMONWEALTH. 295 defense, and is also objectionable on the groun 1 tlmt it required that the tti)i)cllant sliouUl have been without ixult before the heat of passion could reduce a killing done by a blow of the fist in a sudden quarrel from murder to maiialuughter. It is not necessary, in order to excuse a homicide on the ground of self- defense, that thore should be actual, immediate, imj}endin(/ dun- (fcr. It' the aj)i)ellant believed, and had reasonable ground to believe, there was immediate impending, danger, and he had no other ft])pareiit and safe means of escape, he had a right to strike, although the supposed danger may not in fact have existed. hi the third instruction, the jury were told that if an alterca- tion took place between the parties in a grocery, where they seem to have met, and the deceased invited the appellant to go with liini into the street and settle the matter, and the appellant voluntarily went with him to settle the nuitter, and after getting into the street, angry words were used by both, and both were ready and willing to light, and they did fight, and appellant wounded the deceased, and he died from the eti'ectof the wounds, appellant was guilty of numslaughter. This instruction was erroneous. The appellimt may have gone out for an amicable settlement and with no hostile intention; and if ho did so, and a quarrel arose and a fight ensued, his riglit of self-defense was nnallected by the fact that he had gone voluntarily. The (pialiiication of the fifth instruction was also erroneous, hi it the jury were told, after a recital of many facts which the evidence tended to prove, that if in view of such facts aj>pellant believed and had reasonable grounds to believe deceased would proceed immediately to inflict bodily harm upon him with a knife, and that he would do so unless prevented by such act of self-defense as was then in liis power, then appellant's acts were excusable on the ground of self-defense and apparent necessity. Thus far, aside from the improj)er recital of collateral facts, the instruction was correct, but it was qualified as follows: '• Unless the jury find that 'wheii the parties ivent out to settle the matters between thent, not in an amicable way, hut hy force and violence, or in any way that viiyht arise hetween them, then they cannot acquit on the ground of self-defense and apparent necessity, and will find as stated in the third instruction " — i. e., for manslaught- er. The qualification was clearly erroneous, because it assumed that the parties went out to settle matters between them, not in ■■'. OH ' ;l ItlffHI .vr>' Iftfll \ .1 '^|''n[j{ 1 ! ' ■■ 11 i ! i. 200 AMEUIt'AN CUIMINAL RErORTS. ail ainieuljle way, hut hij force and violence, of in uny vxtytkit 'iniyht ufine hetween them. The evidonco tended to ])rovo that the Hpi)enant knocked the deceased down with hiu fist, and tliat lie fell with his head aj,'iiiiist n post from which a nail protruded one-half or three-quartern of nn inch, and that his head struck the nail and the scalp was cut; that the aitpellant stamped upon the body of the deceasuU with his foot, and that the latter was insensible from that time until his death, the symptoms iiidicating that there was couijjrossiou of the brain. A medical witness testified that ho cut into the sk) ill at the •wound made by the nail, but discovered no evidence of injury tu the bone; but he, and other i)hysic)ans, believing? there was com- pression or extravasation of blood on the brain, and that the pa- tient would die unless he could be relieved by trei)hinin;j:, they as a last resort sawed out a j)iece of the skull-bone about an inch in diameter and removed it, and found clotted blood resting on the brain; that they did not remove the blood, but ])laced the piece of bone in the aperture and left it there. This wa^ a thy or two before the patient died. In view of this evidence the court gave the followini,' instruc- tions, viz.: "The court instructs the jury that thouhysiciansasa I'mn- edy for the loounds inflicted by the defendant, they cannot ac- quit him on that (jroundy AVe cannot approve this as a princiide of the law of the hind. The mere fact that the operation was performed by phyj^ieians as a remedy for the wounds inflicted by the appellant, without any reference to the question whether such an operation was reasonably deemed to be necessary, or was performed by men of ordinary skill as surgeons, or in an ordinarily skilful manner, cannot render the appellant legally responsible for the death of Harrison, if in fact the operation and not the injuries inllicted by him caused his death. The rule deducible from the authorities seems to be that where the wound is apparently mortal, and a surgical operation is per- formed in a proper manner under circumstances which render it necessary in the opiniop of competent surgeons, upon one who lias been wounded by another, and "uch operation is itself tha ORTWEIN r. COMMONWEALTH. 207 iininedittte cause of the death, the person who inflicted the wound will bo resjxMiHiblo. Coninioawealth v. Me Pike, 3 Cush., 181; Parnons v. The State, 21 Ala., 3(10. Ihit if the death resulted from grossly erroneous surgical or medical treatment, the ori^i- imUutlior will not bo responsible. 21 Ala., 300. It should, therefore, have been left to the jury in this case to fav whether the oj)eration performed on the deceased was such as mcliiiarily prudent and skilful surjjeons, such as were to be pro- ciiretl in the neighborhood, would have deemed necessary under the circumstances in view of the condition of tlio })atient, and whether it was performed with ordinary skill; and they shouUl liiivc been told that if they found the atHrmativo of these propo- sitions, the a]>])ellant was responsible, although the operation and not the wound inflicted by him caused the deatli; but tliat, if they fouiul that the ojieration would not have been deemed neces- sary by such ordinarily prudent and skilful physicians and sur- ijeons, or if it would have been deemed necessary and was not ))erfurnie'l with ordinary skill, and the death resulted from tho operation and not from the injuries inflicted by appellant, they ought to acquit him, even though they might believe such inju- ries v.ouhl eventually have proved fatal. For the errors indicated, the judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. Jmhjment revei'sed. Oktwein vs. Commonwealth. (76 Pa. St., 414.) Homicide: hisaiiit;/. A charge tlmt " if tho jiii-y have a reasonable doubt of the sanity of the pris- oner at the time of the killing, they cannot convict " is pmpcrly refused. To justify an acquittal, in cases of homicide, on the ground of insanity, the evi- dence nuist be sufficient to satisfy the minds of the juiy that the respond- ent was insane at the time of the killing. A doubt is not sufficient. Agxew, C. J. Tl'.e chief quesiion in this case arises under tho fifth point of the prisoner, which was negatived by the courts below. It is this: 5. If the jury have a reasonable doubt of the sanity of the prisoner at the time of the killing, they cannot convict. 298 AMERICAN CRIMINAL REPORTS. -;;i.':;f R The industry of the able counsel of the prisoner lias collected and classified many cases on this point. Wliile we think their ■weight accords with our own conclusions, we cannot help per. ceiving, in their number and variety, that the decision of tlio question should rest rather oii a sound basis of principle than on the conclusions of other courts. In order to apprehund the true force of the principles to be applied, we must keep in tlic fore- ground the facts of the case before any question of insanity can arise. Insanity is a defense. It presupposes the ])roof of tlie facts which constitute a legal crime, and is set up in avoidunee of punishment. Keeping in mi-ul, then, that an act of wilful and malicious killing has been proved and recpiires a venlict of murder, the prisoner, as a defense, avers that he was of unsound mind at the time of the killing, and inca))able of controlling his will; and, therefore, that he is not legally responsihlo for his act. This is the precise view that the statute itself takes of the defense, in declaring the duty of the jury in respect to it. The 66th section of the Criminal Code of 31st March, 18G0, tiikeu from the act of 1836, provides: " In every case in which it shall be given in evidence, upon the trial of any person charged with any crime or misdemeanor, that such person was insane at the time of the commission of such oilense, and ho shall be acquitted, tlie jury shall be required to find specially whether such person was insane at the time of the commission of such ofiense and declare whcdier he was acipiitted by them on the ground of such insanity." Thus the verdict must find the fait of insanity, and that the accjuittal is because the fact is so found. The law then ])rovides for the proper custody of the insane prisoner. This being the provision of the statute, it is evident that a jury, l)cfore finding the fact of insanity specially, must be satisfied of it by^ tlie evidence. A reasonable douht of the fact of insanity cannot, therefore, be a true basis of the finding of it as a fact, and as ground of aciioii — Ei-ldeiwe — Expert — Di/iiif/ (hchirations — Sustaining impeached witness — Pleading — Infor- mation, On tlie trial of a prosecution for manslaughter in attempting to procure an abortion, it is competent to prove any facts tending to show of what the deceased died. It is not proper to admit the opinion of a witness as to what a person died of, without showing in the first place that the witness had made a su fficient examination of the deceased, and luid such knowledge or experience as would qualify lier to give an opinion. On the trial of respondent for manslaughter in attempting to procure an alx)r- tion, it was held that an exclamation by the deceased the day before she died, ». e. " Oh, Aleck, what have we done? 1 shall die," was not admissible aa a dying declaration. It is not competent to sustain tlie cretlit of a witness, who has been impeached by proof that he had made ditterent statements, of the circumstances testified to l)y him on the trial, by evidence of his general reputation for trutli and veracity. AMERICAN CRIMINAL REPORTS. Tlie respondent cannot be convicted of statutory manslaughter, in attempting to procure an abortion, on an information, charging him simply \\it\\ lujiu- slaughter, which does not recite the facts which constitute the crime unclcr the statute. ExcEi'Tioxs from Branch Circuit. fi^itao Marston, Attorney General, for the people. H. P. Loverldije and L. T. N. Wilcox, for respondent. Cami'bkll, J. The respondent was informed against for man- slaughter, in killing one Mary Bowers, wliom it is averred he did "feloniously, wilfully and wickedly kill and slay, contrary totlie statute in such case made and provided," etc. The information does not name the ofi'ense, nor the manner or means of its com- mission. Upon the trial, the prosecution, in opening, stated that tlic prisoner was charged under § 754:2 of the Compiled Laws, wliich is as follows: " Every person who shall administer to any woman pregnant with a quick child any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or sliall have been advised by two physicians to be necessary for such purpose, sliall, in case the death of such child or of such mother be thereby jiroduced, be deemed guilty of manslaughter." The preceding section makes the malicious killing of an un- born quick child manslaughter, if done by an injury to the mother which would have constituted her murder if she had died. The succeeding section makes all unnecessary attempts to pro- duce the miscarriage of a pregnant woman, whatever may be the result, punishable as a misdemeanor. The distinction, therefore, is clearly tjiken, as dciicndingon the intent to destroy a living unborn child and sui)plies a defect at the common law, whereby such attempts were not felonious, and in some cases, at least, may not have been punishable at all. The elements of the crime, Jis applied to the case before ns,are found in the death of the mother, produced by acts intended to destroy a quick child; that term being used in the statute forau unborn child liable to be killed by violence. The ambiguity PEOPLE V. OLMSTEAD. 303 which, according to Mr. Bishop, seems to exist in some statutes, as to the foetal condition, is not found in our statutes, which cov- er tlie whole ground by different j)rovisions. Comp. L,, §§ 7541, 7542, 7543; Uish. Statutory Crimes, §§742-750, and cases cited. Tiie case was presented to the jury upon circumstantial evi- dence entirely, the cause of deatli being proved by medical tes- timony from a jwst mortem examination, and the connection of respondent with it being also inferential. Upon the trial, one Lucy Stone was sworn as a witness, who testified to having been t.v.-.. for by respondent on the day before the deceased died, to wash her and change her clothes. She tes- tified to certain appearances upon the bed and clothing, and to a peculiar offensive odor which she said she had never noticed be- fore at any time or place, although she had noticed something like it. This testimony was objected to, but we think it was allowable as going to show, in some degree, the condition of the deceased, and as a circumstance which was not irrelevant, and which might possibly be mjiterial with other proofs. Eut without proof of any minute examination of the person of the deceased, or any facts on which she based her opinion, or of any knowledge or experience which might enable her to form an opinion, this same witness was allowed to answer the following question: "Will you state what in your opinion was the matter with Mrs. I>owers at that time?" Her reply was: " My opinion was that she had lost a child." It isiinpossiole to find any reason for receiving such proof. It Involved an opinion which no medical man could give with- out a very full examination. It also undertook to show more than a mere miscarriage. Xo witness, medical or otherwise, can l>e allowed to give tes- timony from his observation, concerning the nature of a person's illness or its causes, without proof both of a sufficient examina- tion and such knowledge or experience as will qualify him to offer an opinion. This woman may or may not have possessed such knowledge as would allow her to give an opinion upon some of the medical questions involved in her answer, but she gave no proof of her knowledge, and gave no testimony upon which it could be inferred that her observation was such as would have justified any one in expressing an opinion. AVhether it is with- in the power of medical science to determine from mere obser- .11 \4 mm ' ■iS^.;*|l ri : 1; ■»« ■■■* bk-"^ 304 AMERICAN CRIMINAL REPORTS. ration that there has been a miscarriage of a quick child, is a question we need not consider. It is certain tliat any compet- ent physician wonkl be very guarded in offering such an opinion. It is impossible to avoid the belief that the witness answered from her suspicions, and not from observation alone, and the question allowed to be put did not confine her to any such source of knowledge or inference. There is no occasion to review au- thorities npon so plain a case. Objection was also made to the reception of testimony from Mrs. Belinda Wheeler, as to what was claimed to have been a dying declaration. This witness swore she was alone in the room with deceased the day before her death. Her account is as follows: "She was lying with her eyes shut. She did not open her eyes, and I put my hand on her wrist to see if I coukl feel her pulse, and then she spoke and says: ' Oh, Aleck, what have we done? I shall die.' I went away in a few minutes af ter that." And being further examined, she testified: " She did not open her eyes the last time I was there" (which was the time in question), or say anything else; I did not say anything.'' This is the whole proof, except some cross-examination about witness' statements on other occasions, bearing upon the exist- ence of delirium. Dying declarations, as is well settled, are neither more nor less than statements of material facts concerning the cause anil circumstances of homicide, made by the victim under the sol- emn belief of impending death, the eflfect of which on the mind is regarded as equivaleiit to the sanction of an oath. They are snbstitntes for sworn testimony, and must be such narrative statements as a witness might properly give on the stand if liv- ing. See Peojyle v. Knapp^ 2(5 Mich., 112, and cases cited; also Ilurd V. People, 2.5 id., -105. The so-called declaration admitted here was entirely destitute of any feature of testimony in the proper sense of the terra. There is nothing to indicate that it referred to the cause of death. It was not made for the purpose of explaining any act connected with the death. It formed no part of any conversation, and was called out by no qnestion or suggestion, and does not purport to be a narrative of anything. Neither is there anything to indi- cate that it was made for any purpose, or in view of any expect- ation of death, or that the deceased knew to whom she was PEOPLE V. OLMSTEAD. 305 speaking, or that she meant to speak to any body. It is not even evident that slie was awake or in her senses. The exchiniation, if made in the manner described, is sucli a one as might natn- rally come from a person in agony, wliose attention was com- pletely distracted from the jjcrsons and tilings ahont her; and might easily have come from one c^nite nnconscioiis of such mutters. It would he extremely dangerous, and contrary to every nde of evidence, to allow such an exclamation to he received as a dying declaration of facts, and to allow it to he eked out by sus- picions and inferences, as was done licre, so as to allow the jury to act upon it as if she liad solemnly charged the respondent ;vith beiiiij the author of her death, in the manner charijed ii'^ainst him. Two witnesses, Ilattic Sweet and Belinda "Wheeler, had been sworn for the prosecution, and evidence had been given by the defense to show that they had given different statements out of court upon material facts, and that one of them haut, until impeached in some way, every witness has the legal presumj)tion of good cliaracter, which would not be touched by another's character, and the rule is well settled that good reputation camiot be shown affirmatively before it is assailed by proof. If proof can be received which will allow- good character to stand as a counterpoise to positive fiK'ts in one case, it would be very unjust to shut it out at any time. The impeaching witness should be allowed to confirm his oath by it, if the iinpeacked witness may use it against the impeacher, and the process woiild never come to an end. It is not collateral, but direct, when offered upon the issue raised by an impeachment of general reputation. There the wit- ness on one side asserts, and the opposing witness denies the same facts, and no side issues are raised. But whatever may be the likelihood that a man of good character will tell the truth, it will not turn falsehood into truth if he asserts a falsehood; and the attempt to sustain contradicted witnesses by evidence of char- acter can only lead to endless inquiries, which are not lilcely to aid in getting at the facts in issue. It is fiir less satisfactory than the view and comparison of witnesses before the jury. H ; <• W^WWnmT. .;'v;-'^!,,|>: '■.i.ib.h. TEOPLE r. OLilSTEAD. 307 would require every witness (as well remarked by Pabkek, C. J.) to bring his compurgators to support him when he is contra- dicted, and indeed it would be a trial of the witnesses, and not of the action. 8 Pick., 154. We think the rnle which excludes pi'oof of character in such cases is sound and reasonable, and we are disposed to adhere to it. A remaining question is of some consequence. Objection was made that the information was not properly framed to support the conviction. Tlie information is very brief, and consists of the single state- ment that respondent, on a day and year, and at a place named, "one Mary A. Bowers feloniously, wilfully and wickedly did kill and slay, contrary to the statute in such case made and pro- vided, and against the peace and dignity of the state of Michigan." It is not claimed by any one that this would have been a good indictment at common law, not only for formal defects, but also for not indicating in any way the means or manner of causing death. But it is justified under our statute, which dispenses with allegations of these, and declares it sufTicient " to charge that the defendant did kill and slay the deceased." C. L., § 7016. Respondent claims that the constitutional right " to be in- formed of the nature of the accusation," involves some informa- tion concerning the case he is called on to meet, which is not given by such a general charge as is here made. And courts are certainly bound to see to it that no such right is destroyed or evaded, \\Iiile they are equally bound to carry out all legisla- tive provisions tending to simplify practice, so far as they do not destroy rights. The discussions on this subject sometimes lose sight of tho principle that the rules requiring information to be given of the nature of the accusation are made on the theory that an innocent man may be indicted, as well as a guilty one, and that an inno- cent iftan will not be able to prepare for trial without kn(»wing what he is to meet on trial. And the law not only j^resumes innocence, but it would bo gross injustice unless it framed rules to protect the innocent. The evils to be removed by the various acts concerning indict- ments consisted in redundant verbiage, and in minute charges which were not required to be proven as alleged. It was mainly, no doubt, to remove the necessity of averring what need not be 'MWM I .' ■ s , jfjl 'i W&'-l , i* 'w! mt't\ ' Hi wH i 1 1 II m ; ^ 11 f 1 1 1 . i ■ , m . » if : ^'1 i i i 1 ' 1 i ''liHHR a: 'iffl^B^ -''''-' 1 vMHP -a nl|i.p7pv' / ■■ ■( 1 ■ ■ 1 i "1 808 AMERICAN CRIMINAL REPORTS. proved as alleged, and therefore gave no Infonnation to the prij. oner, that tlie forms were siniplilied. And these difficulties were chielly confined to coninion law offenses. Statutory ofienses were always required to be set out with all the statutory ele- ments. Iioater v. Peoj>Ie, 8 Mich., 431 . The statute denigiicil to simplify indictments for statutory crimes, which is in force in this state, and is a part of the same act before quoted, readies that result by declaring that an indictment describing au otfeiifc in the words of the statute creating it shall be maintained after verdict. C. L. § 7028. But both of these sections must be reml in the light of the rest of the same statute, which ])luiiily con- fines the omission of descriptive avermeiits to cases where it will do no prejudice. And so it was held in Enilers v. People^ 20 Mich., 2t)3, that nothing could be omitted by virtue of this stat- ute, which was essential to the descri])tion of an ofi'cnse. Manslaughter, at common law, very generally consisted of acts of violence of such a nature that indictment for nnu'der ami manslaughter were interchangeable, by the omission or reten- tion of the allegation of nnilice, and of the technical names of the offenses. In a vast majority of cases, a very simjdo allega- tion would be enough for the protection of the ]>risoner. But where the offense of manslaughter was invuluntary homi- cide, and involved no assault, but arose out of some ne_£,digeneu or fault from which death was a consequential result, and some- times not a speedy one, the ordinary forms were deficient, aim the indictment had to be framed upon the i)eculiar facts, aii'l could convey no adequate information without this. See 2 Ijii-li. Cr. Broceed., g 538. The offense for which the respondent in this case was put on trial originated in the statute defining it, and could nut have come within any of the descriptions of manslaughter at conuiion law. An innocent person, charged under the information, couU form no idea whatever, from it, of the case likely to be set ui* against liim. He might, periiaps, l)o fairly assumed l)oiuid to prepare himself to meet a charge of manslaughter by direct vio- lence or assault. But which one was meant, out of the multi- tudinous forms of indirect and consequential homicide that might occur after a delay of any time, not exceeding a year, from an original wrong or neglect, and of which ho mii^ht or might not have been informed, he could not readily conjecture LEIDER r. COMilON WEALTH. 309 1 rr ■i V • ; ■ I 1 1 \ W Xotliiii^' couUl infonn him of tlii.s statutuiy charye, except alle- iratioin* confoniiing to tlic statute. These, we think, lie was en- titled to have spread out upon the accusation. Without them, lie was liable to be surprised at the trial, and could not be ex- jiected to jirc'itare for it. ''iVe are not ]>re])ared to hold thirs information bad upon its f;iec, fur we are disposed to thiidc, and it was practically admit- ted cm the arpiment, that it iiiMV apfdy to the ordinary homi- cides by assault. It was not, therefore, until the evidence came in, that it was m.'ide certain the case was dift'erent. The (ques- tion of sufficiency does not arise directly upon the record, but on the bill of exceptions, and the error was in permitting a eunvic- tion on it. The other questions are closely connected with this, and need not be considered further. It must be certified to the court below that the verdict should be set aside, and that no further iiroceedings on this charge sliould be had under this information as it stands. The other justices concurred. XoTE. — In /Voy)/t' r. Doris, 50 N. Y., 95, which was a proscoution i'orail- vi.-ijig and proLurins: a woman to submit to the use of an instruuK'nt, and to tiilvi' (lruj,'s iiiul nu'dicinos fortlio purpot-i.' of in'ocuriii^; a misoiimaf^o, and thon.'Iiy cuisinj,' the death of niotlier and ehihl, it was hekl that the w.nian's dyiny de- (luriitions wove not admissihle against the respondent, liecause the death of tlio womainviis not tiie suhject of the eliarye, sueh death heinj,' merely an ayj/i-ava- tionof tiio veal cliar evidence wius lield jn'operly adiiiitti'il. Courts will take judicial eoj,'ni/anc(^ that plioto^^raijliy proihicrs (uri-i'it like- iicsses, the production of the jiiioto^^raiih beinj; governed I i.v the (nidation of natural law>. For the pnr|ii).-e of identifying,' deceased with one, who at one time went uihIit a diU'ereiif name, it is jirnjier to jirove tliat lioth were in tlu' hahituf bceom- ini,' intuxieatt'd. I'ersiaud liahils are nn'ans uf identilicati(]n. There is ni> errr.r i \ r.Ildwie.u a ,jui-y to take documents to the jury nuiiii, wlu'r, It 1 1 .1. "ill", .'i,. 1 ...I'l.'jii i\ • 1 I're is nil errr.r i \ r.Ildwie.u a ,jui-y to take documents to the jury nuiiii, wlu'r, they I'.ave lieru ailmitted in evidence and exhibited to tlie jury ihuiii^j'th'' trial. AciXKW, C. J. This is, iiulocd, u straiiii^o caso, a {((inuiiiation l)y two tit clu'at iiisuraiicT coinpanios, and a immk'r of one hv tlie otli'T to reap the I'niit of tlio fraud. AViiiileld Scott Goss. an iiiluiltitant of IJaltiinoro, liad iiisuriMl his lifi; to the aiiioiint of f?i!ri,0(i(). lie was last soon at liis sht)]), ou the York roml, n sliort dislaiu'O from IJaltiinoro, on tlio ovoiiini^ of tlie :2d of Feli. ruary, ls7:i, in conipany with Wiiliiini E. Udderzook, his brotli- or-in-law, tho jirisonor, and a younji; man living near. They left him to i;'o to the house of the youn:i; man's father. In a short time the slio]) was discovered to he on lire. After it had huriied down, a body was drawn out of tho lire, siij'posed to he that of (u.iss. (Maims were niaue n])on the iiisurauee com- panies, tlu; jn-isoner heini:^ active in p,ro.secutini^ them. On the r.itth (^f .Iun(,'. isTo, the jtrisonor and ii, stranj^tir, a man idcidilieil as Alexander (-. Wilson, apjieai'i'd at .leiuicrville, in ('licster county, this state, and remained over niris()iior. Tlie ijreat (piestioii in tlic case was, the iiidc'iititv <»'" '^- ^'- AVilsoii as W. S. (toss. This was cstab- Ijjlied hy u variety of eirciuiistances aiit one, relate to tliis question (if identity, the most material heiiii^ those relatinj;' to tlie use of II ijhotoijraph of Goss. This ]diotoi^raph, taken in Haltiniore on the ?iUiio plate with a gentleman named Lang-ley, was clearly proved hy him, and also by the artist who took it. ]\[aiiy ob- jeetmns were maile to the use of this ])hot()graph, the chief be- iiii; to the admission of it to identify Wilson as (jloss; the pris- imer's ciPiiiistd regarding this use of it as certainly incompetent. Th:it a jiortrait, or a miniature, painted from life ami proved to rc?endile the jierson, maj' he used to identify him, cannot bo (loiiltted, though, like all other evidences of idi'iitity, it is open to disproof or doubt, and must ho determined hy the jury. Tliere seems to he no reaso)> why a ])liotograjdi, ])roved to bo taken from life, and to resemble the person photogra[)licd, should not till the same measure of evidence. It is true, the jdioto- f^raplis we see, are not the original likenesses; their lines are not traced hy the hand of the artist, nor can the artist be called to testify that he faithfully limned the ])ortrait. They are but pa- per eopies, taken from the original plate, called the negative, made sensitive by chemicals, and printed by the sunlight tlii'onifh the camera. It is the result of art, guided by certain principles of science. Ill the case before us, such a jdiotograph of the man Cioss was presented to a witness who had never seen him, so far as wo knew, hut had seen a man known to him as W^ilson. The ])ur- piise was to show that (Joss and Wilson were one and the same person. It is evident that the coinpeteiu;y of the evidence in such a ea>e de))eiids on the reliability of the photograph as a Work of art, and this, in the case before ns, in which no ])roof Mas made by e.\i)erts of this reliability, must depend ui)on the I'lulicial eogiiizan(!e we may take of photographs as an established means of producing a correct likeness. The ],)aguerrean pro- cess was lirst given to the Avorld in 1S3!). It was soon followed by photography, of which wc have had nearly a generation's ex- .■■!'■;; j?|i ■^i< 314 AMERICAN CRIMINAL REPORTS. perience. It has become a customaiy and a common mode of taking and preserving views as well as the likenesses of persons and has obtained universal assent to tlie correctness of its deliu- cations, We know that its princii)les are derived frun> science- that the images on the plate, made by the rays of light tlirongh the camera, are dependent on the same general laws which pro. duce the images of orttward forms upon tiie retina through the lenses of the eye. The process has become one in general use, so common that we cannot refuse to take judicial cognizance of it as a proper means of producing correct likenesses. But, hajipily, the proof of identity in this case is not depend- ent on thb photograph alone. Letters from AV^ilson idontitied as the handwriting of Goss; a peculiar ring, belonging to Gocs, worn upon the finger of Wilson; the recognition of Wilson, liy A. C. Goss as his brother; packages addressed to A. C. (ioss, and envelopes bearing the marks of the firm with which W. S. Goss had been employed, coming and going to and from Daltiinorc. and many otiier circumstances following u]) the man Wilson, leave no doubt of his identity as Goss independently of the photograph. The objection to the ])roof of Goss' habits of intoxication v equally untenable. True, the habit is common to niiiny, and alone, would have little weight. But habits are means of identi fication, though v;ith strength in proportion to their peculiarity. The weight of the habit was a matter for the jury. It is ujinecessary to follow the bills of c.\cei»tions in detail. They all relate to facts and circumstances bearing on the (jues- tion of identity. If the bills of exceptions are many, llicy only denote that the circumstances were numerous, and in this nuilti- plication consists the strength of the proof. They are the many links in a chain so long that it encircles the prisoner in a double fold. The (juestions put to (J. P. Moore, A. II. Barnitz and A. 11. Carter were unobjectionable. A^liether they really could not identify the dark ami swollen face of the corpse, it was not for the court to decide; its weight belonged to the jury. There was no error in permitting the jury, after their return into the court for further instructions, to take out with them, at their own request, the letters, check, due bill and a])plication for insurance, papers which had been i)roved, read in evidence and ^mimmfmmm l^ilm FRASER V. STATE. 315 commented on in the trial. The appearance, contents and liaiid-writiiig of tliese documents were no duubt important, and to be respected by the jury, who could not be expected to carry all tliese features in their minds. It is customary in niurder cases to permit the jury to take out for their examina- tion the clothing worn by the deceased, exhibiting its condition, the rents made in it, tlie instrument of death, and all tilings in'oved and given in evidence bearing on the commission of the offense. ■\Ve discern no error in this record, and therefore affirm the sentence and judgment of the court below, and order this record to be remitted for execution. Fkaser vs. State. (55 Ga., 325.) Homicide: Evhlawe — 'Motive — Admlistons. On a prosecution for iminlor, evitlonce that tho respomlent's wife being dead, ho colm'titi'd illicitly with a stt'p-daugliter, and was anxious to many her, and that deceased had taken the step-daughter to his houxo and refused to give her up, and that deceased had contested in a habeas corpus case the right of resiiondent to get the step-daughter and oiher step-chikken back to his houne, is admissible as tending to show a motive. On a trial for murder, any evidence which tends to show a motive is material iuid aibiiLssiijli,'. On a ti'ial of respondent for nun-dering a man who had broken up illicit intcr- coursi> between respondent and his step-daughter, and continued to prevent such intercoiu'se, letters of respondent showing great anxiety to get posses- sion of the step-daughter's person are admissible as timding to show motive. On a trial for tVlony, any statements which have been nuule by the respondent as to any fact circumstantially material to the issue lU'o admissible against him. Accordingly, where it was material to show that respondent had rid- den very fa.;t, it was /ipondent was afraid he would he tried for it when he j^ot out. 7/(7(7, that a charge which refeiTed to this ovidonce as tending to show a voluntary confession without inducement was not eno- neons. WuRDEX, J. The appellant was indicted in the court below for the murder of William C. Morgan, aTid, upon trial, was con- victed and sentenced to imprisonment for life in tlie state prison. His counsel have filed an able and elaborate brief, insisting that the verdict was not sustained by the evidence, and that tlie court erred in its charges to the jury. We have read the evidence with care, and although it is mostly circumstantial in its cliaracter, we are satisfied tliat it established the guilt of the a])penant with- out any reasonable doubt. On the 5tii of ^lay, 1SC5, the deceaswl started from Wisconsin, with a pair of horses and a covered wagon, to come to Indiana. Some one got into the wagon with him, not shown to have been tlie appellant; but it was shown that the deceased .and the ajipelhuit had previously made an arrangement to come together. This was the last that was ever seen or heard of Morgan by his friends or relatives. In the autumn of 18G7, a human skeleton, not quite entire, of the male sex and Caucasian race, and corresponding very well in point of size with ]\Iorgan, was found in a slough or poricl, not far from a higliway in IJenton county, Indiana. The skull had a hole in the lower posterior part, and a cut or gash on the to]i, apparently made with some sharp instrument. The latter could not have been self inflicted, and was sufficient to cause death. ^T*?^ McCULLOCH V. STATE. 319 A chain of circumstances, proved on the trial, led to tlie con- chifion beyond any reasonable donbt, that the skeleton was that of William C. Morgan, and that the appellant was guilty of his immler. Tlie circumstances arc too numerous to be detailed in this opin- ion, and no good purpose would be subserved by setting them out. We are entirely satisfied with the conclusion arrived at by tlic jury upon the evidence. The following are the charges excepted to by the defendant: "G. To warrant a conviction in this case, yon must first be sat- isfied beyond a reasonable doubt that the skeleton ofl^jred in evi- dence is the remains of a human being. AVhen this fact is proved, then the state may prove by circumstantial evidence, that said remains are those of AVilliam 0. Moi-gau, the man alleged to have been killed; and may also prove by the same kind of evi- dence that the defendant killed him. But to warrant a convic- tion on circumstantial evidence, it should be so strong as to ex- chide every reasonal)le hypothesis of innocence. " 7. Confessions alleged to have been made by the defendant are to be received with great caution, and are entitled to no consid- eration until the jury are satisfied from the evidence, beyond a reasonable doubt, that said Morgan was murdered. If the jury find that the fact of Morgan's murder is established beyond a reasonable doubt, by evidence independent of the defendant's confession, and that after liis death, the defendant voluntarily^, and without any inducement, confessed himself guilty of the crime, such confession, if the jury find beyond a reasonable doubt that it was made, may be considered by them as strong proof of guilt." Tlie counsel for the appellant insist that the sixth charge is wrong, inasmuch as by it the jury were told that if they believed that the skeleton ofi'ered in evidence was the remains of a human being, the state might prove by circumstantial evidence that it was the romains of William C. Morgan. They insist that as this was, in substance, a charge that the corjms (lelicti might be proved by circumstantial evidence, the charge was clearly wrong. Tliey cite in snjiport of the position taken, the case of liuloff v. TkPeuple, 18 N. Y., 179. It niiiy bo conceded, that much that is said in that case mili- tates against the charge in cpestion. But that case dift'ers from I II 320 AMERICAN CRIMINAL RErORTS. tins. Ill tlmt case, the defend.int was cliargod witli tlie murder of a cliild. Tliero was no direct proof that tlie cliild Uiis (\q^i or had beoii murdered, or that lier dead body had ever been found or seen by any one.. The jury were asked to presume, and find from the lapse of time since tlie child and her nu^ther were last seen, and from other facts and circumstances, that the child was dead, and had been murdered by tlie prisoner. The conrt ^e/t/ that there must be direct ])ror!f of the co)'j>i/-s ddltti. Whether the court would have ap])lied the doctrine tu a case like the jiresent is rendered quite doubtful by the clusinc para- i^raph of the opinion in the cause. " If," says the court, '*wliat is said by these writers is to be taken as intimatin>j^ their opinion that Lord Hale's rule may be departed from, I iind no jiuliciul au- thority warranting the departure. The rule is not fuiiiidedona denial of the force of circumstantial evidence, but in the danger of allowing an}' but unequivocal and certain ])roof that some one is dead, to be the ground on whicli, by the interpretation of cir- cumstances of suspicion, an accused person is to be convicted of murder." In the case in judgment., the skeleton supplied what it would seem the court in the New York case thought to be lacking in order to a conviction on evidence otherwise circumstantial. In the case of the State v. W/Jliams, 7 Jones, N. C, 44C, it vrns/ichJ, that in a case where the supposed body of the person alleged to have been murdered liad been destroyed by lire, leav- ing remains shown to have been human, the cnrpiis dtlhti miglit be proved by circumstantial evidence. So in the case oiStoch hujv.-TIi6 Sfatt', 7 Ind., 320, where the body was destroyed liv fire, this court said: ^'Tho co/j/ns delicti may, like any other part of the case, bo proved by circumstantial evidence."' We shall not enter upon an extended examination of the au- thorities upon this question, but content ourselves with the cita- tion of a few passages from elementary writers: " The corpuH delleti, or the fact that a murder has been com- mitted, is so essential to be satisfactorily proved, that Lord Ilale advises tliat no person be convicted of culi)able honilcido, unless the fact were proved to have been done, or at least the body found dead. Without this proof, a conviction would not ' v ^-arnuited, though there were evidence of conduct of the prisoner exhibit- ing satisfactory indications of guilt. But the fact as we have Mcculloch v. state. 321 already 5cen, need not be directly proved ; it being sufficient if it be established by circumstunccs so strong and intense as to produce the full assurance of moral certainty." 3 Greenl. Ev., sec. 131. Bisliop sfiys (1 Jjish. Crim. Proc, sec. 1070), speaking of the doctrine of Lord Hale: "But this doctrine is rather one of caution and sound judgment than of absolute law, according to what appears to be the better and later English authority." A?ain, tlie same author, in the next following section, says: '•If we look at this matter as one of legal principle, we can hardly fail to be convinced that, while the corj)U8 delicti is a part of the case which should always receive careful attention, and no man should be convicted until it is in some way made clear that a crime has been committed, yet there can be no one kind of evidence to be always demanded in proof of this fact, any more than of any other. If the defendant should not be con- victed when there has been no crime, so equally should he not he when he has not committed the crime, though somebody has; the one proposition is as important to be maintjiined as the other; yet neither should be put forward to exclude evidence which in reason ought to be convincing to the understanding of the jury." AVe quote another paragraph from 3 Greenl. Ev., sec. 133: "But though it is necessary that the body of the deceased be satis- factorily identified, it is nut necessary that this be proved by direct and positive evidence. Where only mutilated remains have been found, it ought to be clearly and satisfactorily shown that they are the remains of a human being, and of one answering to the size, age and description of the deceased; and the agency of the prisoner in their mutilation, or in producing the appearance found upon them, should be established. Identification may also be facili- tated hy circumstances apparent in and about the remains, such as the apparel, articles found on the person, and the contents of the stomach, connected with proof of the habits of the deceased in respect to his food, or with the circumstances immediately preceding his dissolution." Whatever may be the law in respect to cases where no sup- posed remains of the person charged to have been murdered have been found, as was the case in Ituloff v. The People, siipra, we are of opinion that the charge given, as applied to the case made Vol. L — 21 ^^^ \ 322 AMERICAN CRIMINAL REPORTS. 1 1)}' the evidence, was not erroneous. Circinnstantial evidence ns we think, wjis clearly competent to identify the skeleton pniduml ns the remains of William C. Morgan, as well as to BJiowtlie cause and manner of his death. AVe pass to the seventh instruction. We do not understand that counsel for the ap]>ellant (question the corrcctnciss of this instruction as an abstract proposition; but they insist that there was no evidence given to which such charge could l)e a])plie(l and therefore that it was erroneous. They claim that tlie iinpej. hint made no deliberate confessions of his guilt, and that tlio charge was calculated to do him harm, by impressinir the jury with the idea that what he did say amounted to such confessiun. The evidence in respect to the confessions of the appellant, as it appears in the bill of exceptions, is as follows: " Henry C. Warrell, a witness for the state, being d'.ily swoni, testified as follows: 'lam acquainted with the defendant; we roomed together in the Illinois state's prison; I knew him iii prison as James McCulloch; I saw him frequently for gome three years; I saw him the spring of 1872; my nieniorv is verv poor; I am a prisoner myself; there was considerabk' talk in tlie prison about his case and mine; I was in for burglary; I heard him make remarks about being uneasy about being arrested when his time was up; I will give you the substance of it as well as I can now remember: He told me he expected to be arrested on a charge of murder; he said he had killed a man by the nameuf Morgan, and he was afraid the deceased man's father wonld ar- rest liim when his time expired; that the only proo^' tliat would be against him was that he was seen in company with the man. and was caught in possessson of his team; I do not know that there was much more said at that time. I did not believe it. and did not pay much attention to it; I heard him make little remarks about his being uneasy about being arrested when lie got out. There was a convict in prison at that time bv the name of Col. Cross, a kind of a lawyer; I cannot explain every word; he went to him for information; he s.aid they had found the skeleton that was said to be the man he murdered; he wanted to know if it \v( uld be any evidence against him, if it could not he identified. I thin'- Col. Cross said it would be no evidence against him ; and that is all the conversation I heard, except his expression about being uneasy; he got some letters from his MuCULLOCU V. STATE. 323 wife* lie saul there was notliiiif^ saul lately about the Morgan ease.' "On cross-examination, the witness testified as follows: *I am a convict, and have lieen convicted on three different indict- ments f(»r biir^'liiry; sentenced ten j-ears; have served five years ami ftJiii' J'"^"*^!'^ '^^ the time; 1 was brought hero in chains; I left tlicin off' outride; the defendant told me in this sameconver- jiition, and at other times, that ho wanted them to take him out iiiiJ try him then, and not bother him when his time was out; ill this siuue conversation I spoke of awhile ago, ho said he was ail innocent man; that ho was innocent of the charge; my mem- ory is very poor; he always said he wanted to be tried then for the charge, and not bo bothered when he got out; ho never said lie wanted to get out and be tried after the skeleton was found.' " The evidence, as it comes up to us, is a little obscure in this, that it docs not very distinctly aj)pear to what conversation the witness alluded as the one he spoke of " awhile ago,'' in which the defendant said he was an innocent man, etc. The witness had spcdven of several conversations. In one of these the defend- ant, according to the witness, said ho had killed a iiuiu by the name of Morgan, etc. Then the defendant had a conversation with Col. Cross, and took his advice. Then he said at other times that he wanted them to take him out and try him, etc. It dues not appear in which of these conversations it was that ho said he was innocent. It cannot be rightfully assumed that it was necessarily in the one in which ho said he had killed a man by the name of Morgan. With this evidence before the jury, we think the court was clearly justified in giving the charge in question. There is no error in the record, and the judgment below nxust be affirmed. Thejiulgment below is afiirmed, with costs. ■ r 324 AMERICAN CRIMINAL REPORTS. i ', ^^^K^ ^.y: .\ f Dvn^s vs. Statk. (49 Ala., 370.) Homicide: Evidence — Atlmissiuns — Thnnts hij deceased — His fjcstie—Em ■ iiiiint he injiiriuiis. On a trial for innnlt'r, whcro tin; iirosociition Imvo pi-ovfil istntoinonts niiulel, thf rcHiiomli'iit iimnuiUiiti'ly iiitor tlio killing', U'luliiit,' to .-luiw tlmt lii> kill.il the (Ica'iisi'il, the rt^ponJi'iit has a riyiit to Inivi; tliu wliulf loiivin'sutign n,. (•lii(lin<.; tln' pxpliiiiatiou that lie then miule of tlie fnct. But the record not disciosinj,' wliiit tlie ve>])onilent expecteil to provo hy awi;. Jien8, tho wjurt camiot reverse the jiidj-nient Ih-cause the triiil court cxiliiilil II lej^al iiuestion. For all that niii>ears under such cuinnnj-tiiiiccs, the t elusion oi the question' nuiy have been a henelit to the resiMjiulcnt, must atfimiatively aiipeiu- liy the record that an error coiniiiaiucd of w;,. iiyurious to [\u- iiarty. On a trial for nuinler, where it had ajipeared that the deceased imd jfone to fin 1 the respondent, and armed liiiuself w-itli a revolver and a knife, sayinj; th;,' ho intemled to have a settlement witii the respondent, and that wlwu th/ re.siiondent came np, the decini-^ed spoke to him, and tiie two waliWofl'tr gether and shortly afterwards tlu^ reiiort. of a pistol was heard, ' iit tin r- was no evidence of tlie rircnmslance>+ immediately preceding? tlic icillin:, after tho two walked away together: It was held, that the respomii'iit 1.,; 1 a right to prove that the deceased had said when starting to tind him, tli,;t ho wtuf» going to kill hinu and used these words: " Wiien yuii I'.tarfiii.i me, you will hear that him or me is dead." Such declarations are adiiiis.-il : ■ under ^he circumstances, as a part of the irs ijextw. On a trial for murder, threats made hy the deceased against the resi)Oiulei:t, which are not admissilil.' us part of the ren fiexta-, and which were uot an.;- municated to tho resiiondent, are iiiadiuissilile in his behalf. Confessions dehherately made, ami precisely idditiKed, are often most «iti«fii • tory evidence; but men? verbal admissions, imsupported by other cvidiiK , should bo cautiously weighed, because of their liability to be misuiuIi'Mi> .1. the facility of fabricating them, and the ditUculty of lUsprovuig tliem. Fkom tlio Circuit Court of Blount. Tried before the Hon. "NVii-mam J. IIaralsox. The prisoner in this case was indicted in Se])tenihcr, ISTO, for the murder of Pickens Musgrrjve; pleaded not guilty to the in- dictment; was tried at the March term, 1873, convicted of nun- der in the second degree, and sentenced to the peiiiteiitiaiyk ten years. On the trial, he reserved several excoptiuiis to tlie rulings of the court, which are thus stated in the hill of excep- tions: "The state having given evidence tending to show that at a certain time, ahout the 5th day of January, 1870, in saiil county of Blount, tlie deceased ciuue to the still-house of his father, E'i- f BURNS r. STATi:. 325 xinl Muti"riivc, altout four (t't'loclc in the evening, niid inquired If j],e,lef(.'ii'lunt wiis tliere, or liad come yet; and lieinj^ told that 'le liml not, itroceodcd to load his j)lst(d, and sharpen a knifo fjivy ^ '.vliii'li 111-' ^""^ ''*' ^^'^' •*till-housL', saying that he intended t«t have ;i settloiiK'iit with the defendant; that the defendant rode up ;ilioiit this time, driving some of hi8 father'^ ho;^-s, j,'ot down from 1,1, lii>r.-c, iiiid waii aliout fahteniuif him, when the deceased went ;iM to hi 111, and spoke to hiiu, and they walked oil" torasseal, who stated the above, if the defend- f.iif, «heu he came to the still-house for help, stated anythin<^ iiietluin what is above set forth, to wit: " thiit he wanted them tj go with him, to hel[t take cure of the deceased, whom he had .4jt;" The witness rei)lied, that he did say something else at the time. The defendant then asked said witness to state all tkt lie (defendant) said at that time. The state's attorney ob- jected to the witness answering this (piestion, and the court sus- tained the objection; to which the defendant, by his counsel, exoeptcd. '•During the further progress of the cause, the defendant i-tlered to prove, by one Cassey Speigle, who was st.aying at the liuiise of ?aid Edward Musgrove in January, 1870, where the I'.eceased alsx* lived at that time, that she was ])resent when the de- ceased started to the still-house on the evening he was shot; and tliiit he told her, wdien starting, that he intended to kill the de- fendant, and said, ' When you hear from nie, you will hear that Iiim or me is dead.' The solicitor for the state objected to the admission of this evidence, and the court sustained the objection, Ijecause the same had not been communicated to the defendant; to which ruling the defendant excepted. "liiil iiii ■ 326 AMERICAN CRIMINAL REPORTS. " In the further i)rogress of the cause, the defendant offered to prove, that when he came to the still-house to obtain help for the deceased, and told the witness tliat he had shot him, liealjo said, ' and I fear I liave killed him. I would not have done it for the world, but he was trying to kill me, and I couldn't help shooting him.' To this the solicitor for the state ol )jecte(l, and the court sustained the objection, to which the defendant ex- cepted. *' In the further progress of the cause, the defendant offered to prove by Nmcy Button and Taylor Dutton that the deceased. the day before he was shot, came to their house in the niorniiiir. on his way to Blountsville, and in the night, on his return liomt, and on both occasions inquired if they had seen the defendant pass that day, or knew where he was, and stated his intention to kill him. The state objected to the admission of this evi. dence, and the court sustained the ctbjection, because the same had not been communicated to the defendant; to which ruliii;: the defendant excepted. " In the further progress of the cause, the defendant offered to prove by one Calvin Hudson, that on the day before, or at most a very few days before, the deceased was shot, he liad ? conversation with him in Blountsville, in which the deceased wanted to borrow his pistol, and [said] that he wanted to nnku a certain man take back something he had said; and tliat he (witness) understood that the defendant was the 'certain man' mentioned. To which the solicitor for the state o])jecteJ, and the court sustained the objection, on the ground that the same had not been communicated to the defendant; to which rulin;.' the defendant exce]>ted. " In the further progress of the cause, the state having intm- duced certain testimony tending to prove confessions, or admis- sions of guilt made by the defendant, the court was rcijnestel to charge the jury, in v.riting, as follows: 'Admissions area species of evidence which, from the ease with whicli they can 'le fabricated, and the b'-ibility to misiipprehend what was said, should always be scrutinized and received with great caution l>v the jury.' Which charge the court refused to give, and the de- fendant excepted. " The defendant also requested the court, in writing, to charge the jury as follows! ' That although they may be satisHed, from ..'.Il.l.;!'!:! t^ ''t,' BURNS V. STATE. 32T the evidence, that the previous general character of the witness Johnson, for truth and veracity, was good; yet if they believe, from tlie evidence, that said vltnecs has made ditferent or con- tradictory stateuaents of the circumstances attending the alleged confession, they may look to these contradictory statements to ascertain whether or not, and if so, how much, credit should be (riven to tlio testimony.' The court refused to give this charge, and tlie defendant excepted. "The defendant also asked tlie court to give the following charge, wliich was in writing: ' Tiie defendant's guilt must be made out by evidence of a conclusive nature and tendency, and must exclude any reasonable supposition of innocence.' The court refused to give this charge, and the defendant excepted to this refui^al.'' IlaiiiUl, Palmer tt Dickinson, for the prisoner. Ben. Gardner, Attorney General, for tlie state. Brickkm,, J. The general rule, often announced by the court, i£, that a party to a proceeding, civil or criminal, taking a bill of exce])ti()ns, must atlirniatively show error to his prejudice, or the proceedings will not be disturbed. Etrejudice the prisoner. An exception to the admission or rejection of evidence should always disclose the evidence admitted or rejected, or a revising court cannot intel- ligibly pass judgment on it. 2. The prisoner oftered to prove exculpatory declarations made 1 1- 1 "i i i 328 AMERICAN CRIMINAL REPORTS. by him when ho returned to the still-house after the sliootini^ which the court exchuled. Tlie bill of exceptions does not in- form us whether these declarations formed part of the conversa- tion of which the state gave evidence, or whether tlioy were made in another and snbsetjuent conversation. Of course, we cannot say that the court erred in rejecting them. It may be jn'oper fur us to repeat the ride by which the court should be governed in determining the admissibility of this evidence. The prisoner cannot give in evidence his own declarations, unless they form part of the n-s gesUn; but if the state give evidence of his confessions, declarations, or admissions, it is his right to lav ])cfore the jury all that he said at the time, referring to the kill- ing, and the circumstances attending it. It is the jn-ovince of the jury to determine the credibility and weight uf the declara- ration or confession. The jury must weigh the whole, rejecting no part unless for some sufficient reason; but they may, in the exercise of their judgment, give more credence to one part than to another, or may deny credence to a ])art or to the whole. WilUams v. The State, 39 Ala., 532; Chamlcrs v. The State, 26 id., 59; 1 Greenl. Ev., § 218. 3. It appears from the evidence set out in the bill of excep- tions, that the killing was at or near a still-house. That the de- ceased reached the still-house before the prisoner, and on reacli- ing the house, inquired for the ])riftoner; that, being informed the prisoner was not there, he obtained a knife, and shiu-peiicd it, and loaded his pistol, declariiig that when the prisoner came, '*he intended to have a settlement with him;" that the prisoner rode up about this time, and while he was fastening his horse, the deceased spoke to him, and they walked oil' together; that the report of a pistol was heard in a short time, and the ])risuner re- turned to the still-house alone, having a wound in his leg, ap- ]>arently made by a knife, and some scratches on his throat. There was no evidence, so far as disclosed by the bill of excep- tions, of the circumstances of the killing, or of the conductor condition of the parties at the time of the killing. The prisoner oil'ered to jirove that the deceased, when startinj,' to the still-house, said that he intended to kill the prisoner, and used these words: " When you hear from me, you will hear that him or me is dead." The state objected to the admission of this evidence, and the court sustained the objection, because it did ■'I ■'-■f'-ifff ~ BURNS V. STATE. 329 not appear that tlicse declarations or threats had been commun- icated to the prisoner. The sjcneral rule is, that threats of personal violence made by tlic deceased against the prisoner, and not communicated, arc not adniissiblc in evidence, unless they form part of the res 0t J,' 'i^ ! 332 AMERICAN CRIMINAL RErORTS. two being in front of the counter. That of the two in front Shock and Wilson, was most favorable to the defendant, ami was in substance, that Thomas told Ilorbach that " he was a tlanuied lying son of a bitch," when Shock stopped up and told him that he (Shock) owed for the drinks. Thomas replied, " that is too thin," and told him to go away; and turning to the defoiulant told hint again, wlioever says that he owed fur two rounds is a damned lying son a bitch, at the same time gesticulatiuf vio- lently with his right hand, touching or striking Ilorbach on the breast. Ilorbach said, " then you don't owe it? " Thomas again said to Ilorbach, " you are a damned lying son of a bitch," still gesticulating as before, in a violent, angry manner. Ilorbach said, " what do you mean? " perhaps twice. Thomas still repeat- ing his accusations and gesticulations, wlien finally stcppiii'^ back his right foot, threw his right liand behind hiu., jiu.sliiiuc back the skirt of his coat (one of the witnesses says as if to draw a pistol), when instantly Horbach presented his pistol with Lotli of his hands, and firing, shot Thomas in the head and killed liini. Shock says that, being behind Thomas, he was shaking his head at Ilorljach; Wilson says that, during the altercation, ho wont into the front room, turned down some lights, came back, put some money in the safe, went behind the bar, and was talking to the bar-keeper about closing up, when the firing to(dv place at the south end of the counter, the said witness being at the north ond, and the counter being so high that he could not soo the movement of the parties' hands in front of it. Shock wont for a doctor. AV^ilson left the house, as did defendant, who was arrested that night in AVilson's room. There was evidence that Bogle and Duckworth were more friendly to Thomas than to Ilorbach. The doctor came and fouiul no weapons on Thomas, and there was no further evidence as to whether he had weapons or not when he was shot. Thei-e is no intention here to give the least intimation of opin- ion as to the weiirht of this evidence, as establisliiui; one conclii- sion or another in reference to the guilt or iimocence of the de- fendant. It is collated simply to show that there was eviilencc tending to prove one of two conclusions leading to ditl'erent rc- sidts, either that Ilorbach shot Thomas from a sudden motive of revenge fur an unprovoked and gross insult, or under the be- lief that the gross insult was then being followed up by the act ^^"gffPr •filM HORBACH V. STATE. 333 of making a deadly assault upon him with a weapon, endanger- in'' liis life. The facts tending to the establishment of the latter conclusion (to what extent, it is immaterial to consider now) were, that Thomas, having a dispute with the bar-keeper about his liquor bill, became angry, and without any apparent cause, turned the controversy about it from the bar-keeper to Ilorbach. The bar-keeper, Shock, and Ilorbach, all tried to pacify him, and let him have his own version of the matter. Still he persisted in fastening the controversy on Ilorbach, who was not concerned in it and was not even present when it commenced. Ilorbach treated the matter lightly at first, and when all the means that were tried could not divert him from making the issue with Ilor- bach, he commenced treating the matter seriously, and asked Thomas what he meant. Thomas stepped back his right foot, and threw his hand behind him as if to draw a pistol. It may be a significant fact, as tending to show the known character of Thomas, that the persons there, seeing the matter becoming se- rious, did not interfere, except that Shock, having been once rudely repulsed by Thomas, stood oft* at some distance shaking his head at Ilorbach. This may bear two constructions, cither that they did not think it necessary to interfere, or that they did not think it consistent with their own safety to interfere with Thomas any further than had been done. For the purpose of adding still further weight to the evidence, tending to the conclusion that Ilorbach acted under the belief, and hud reasonable grounds, from the words and acts of Thomas then said and done, to believe that Thomas was in the act of making a deadly assault upon him with a weapon, the defend- ant, by his counsel, sought to prove l)y questions to witnesses, that Thomas w«as in the habit of carrying deadly weapons, and that Thonuis, when intoxicated, was a quarrelsome and danger- ous num. The questions, being objected to, were not allowed to be answered, to which rulings of the court defendant excepted, which appears in bills of exceptions in the record. The question is, AVas such evidence admissible for such a pur- pose as an element of detense? "Evidence, in legal acceptation, includes all the means by which an alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. "By competent evidence is meant that which the very nature ■''! Ill 1 : '■ \ ■- ■ 1 I 1 , , .' ■ ■ mmm if n 11 (i' -^ ip5 ill}! 'ii r^aar^ H- ii 331 AMERICAN CRIMINAL REPORTS. of the thing to he proved requires as the fit and appropriate proof in the particular case." The thing souglit to be proved in this case is, tliat Ilorbach had reasonable grounds to believe, and did believe, that Tlioinas then intended and was in the act of then attempting to kill him, by the use of a weapon. Now, supposing it to be proved that Thomas, being enraged and pressing the unprovoked quarrel up- on Ilorbach until it became serious, and had arrived at a point where Thomas would either liave to recede or follow it up witli increased malignity, and just at that juncture he steps back and throws his right hand behind him, what other facts would be required as peculiarly fit and proper to be known by llurbach to induce that reasonable belief? Certainly the most lit and appro- priate additional facts that he could possibly know, teiuling to prove such reasonable belief, would be, that Thomas had a pistul on his person back where he put his hand, and that he was a man that would use it when mad and intoxicated, and would not likely back down from a difficulty that he had himself provoked. If Tliomas was in the habit of carrying a pistol where lie put Lis hand, it was not improbable that his friend Ilorbach, as well as others, knew it, and might infer from the motion of his hand the intention to draw it; and if his general character was that of a dangerous man when aroused with anger and excited with drink, Ilorbach might infer that Thomas intended to use the pistol on him when drawn. On the other hand, if Ilorbach knew that Thomas' general character was that of a (juarrelsonie man, with no force of character, not vicious and destructive in his nature, not likely to use weapons if he had them, and not in the habit of carrying them, then the inference iniglit not be reasonable from his conduct that he intended then to draw and use a pistol. Thus is it shown that these very facts, Tliomas' character for violence and habit of carrying arms, with Ilorbach's knowledge of them, might determine his guilt or innocence in acting as promptly as he did. His intoxication. Ids anger, his persistent- ly pressing the difficulty on Ilorbach without cause, his violent character, and his habit of carrying weapons, woukl all be ap- propriate and fit facts, if they existed, to throw light upon and give significance to his movement in stepping back and throw- ing back his hand. Taken separately and in the abstract, they ^^Ifp !|! HORBACH V. STATE, 885 may be meaningless, indiiferent and immaterial, but taken to- gether, they may be pregnant with meaning, as shown by the conduct of tlie two witnesses, Wilson and Shock, who saw Thomas' motion of his body and of his hand. A man's char- acter fur violence, dej^endent upon his irascible temper, over- bearing disposition, and reckless disregard of human life, is as much a part of himself as his judgment ajid discretion, his sight or hearing, his strength, his size, his activity, or his age, any one of which may become a material fact to give a correct under- standing of his conduct and the intention with which an act is done by him, and are therefore part of the res gcstw when perti- nent to the act sought to be explained. Their office in evidence is adjective, as auxiliary to a substantive fact to which they are pertinent, and without which they are irrelevant and immate- rial. They are helps to the understanding in construing human conduct. The mind cannot reject or disregard them. They, and all like helj>s, ever have been, and ever will be, elements in the formation of belief as to what a man designs by an act to which they are pertinent. Practically we know that men generally, who are assailed with violence, act in defending themselves with promptness and force in projwrtion to the violent and desperate character of their assailant. It behooves them so to do for their own safety, l)ecause it is known that such men who usually fight only with weapons, and usually have them ready for use, are not to be trusted to get an advantage in the combat. If, then, the character of the assailant in any case has helped to form a reasonable belief in the mind of the assailed that his life was then in danger, when the acts alone would fail to do it, tlie jury should in some way be informed of the character of the assailant, as well as of his acts, to enable them to understand that the belief was a reasonable one. Otherwise he might act in his defense on such reasonable belief, and the jury, not helped by a knowledge of the assailant's character to understand the import of his acts, of which they were informed, would find him guilty of murder, because of his having acted without reasonable grounds for believing that his life was then in danger, when in fact he had such reasonable grounds of belief, did believe it, and acted on such belief. This being sometimes an important fact, necessary to be known ! 'I 'I > I il 336 AMERICAN CRIMINAL REPORTS. l»y a jury to enable tliem to come to a proper conclusion as totlie state of mind of the accused just at the time when he killed tlie deceased, how and untler what circumstances is it admissible in evidence? It is laid down as the rule at common law, as prac- ticed iji England and most of the older states of the American Union, that it must be made to appear, if at all, in the transac- tions immediateh* connected with the killing as part of the ?v.s (jent(v^ as it is termed, and to be deduced therefrom rather than to be ]>rovcd as a distinct fact. Iti an old settled country, where there is little change of popu- lation, this fact would generally bo known to a jury without be- ing proved as a distinct fact, whereas in newly settled cunntries it niight not be. Formerly it was the rule to get jurors from the vicinage who knew the parties and the transaction. Xow, the very opposite is the rule. There are various other reasons arising out of the state of society and habits of the people in dif- ferent countries and at different periods, which would make it important that this fact, when pertinent, should be made to ap. pear as a distinct fact, as explanatory of the acts and intentions of the parties concerned, in order to arrive at the truth. In an early case in North Carolina, it was said, in speaking of tlieconi- mon law (in a case where it was held that the proof of tlic cliar- actei of the deceased for violence was admissible as a distinct fact), that it is a " system which adapts itself to the habits, in- stitutions and actual conditions of citizens, and which is not the result of the wisdom of any one man in any one age, but of tlie wisdom and experience of numy ages of wise and discreet men." State V. Tach'tt, 1 Hawk's L. & Ch. (X. C), 217. In an early case in Alabama, evidence of the general charac- ter of the deceased was held to be admissible. Chief Justice Lipscomb (who so long adorned our court also as associate jns- tice), in delivaring the opinion, said in very strong language, "If the deceased Avas known to be quick and deadly in his re- venge of insults, that he was ready to raise a deadly weapon on every slight provocation; or, in the language of counsel, his 'gar- ments were stained with many murders,' when the slayer had been menaced by such an one, he would find some excuse in one of the strongest impulses of our nature in anticipating the purposes of his antagonist. The language of the law in such a case would be, obey that impulse to self-preservation even at the hazard of IIOUBACII I'. STATE. 83T tlie life of yonr mlvcrsnry." Quesenlerry v. The S/tde, 3 Stew. aiulPt»i't., Ala., JMo-C. In the sriiio ciwe it is said tlmt, " tlicro cftnl)eii'»i'il'"f, 5 id., 90. '♦ hi tlie case of tlie Stdti' of Jf/^^nt/r/ v. Kecue, 50 Mo., 35S, tlie court say, "where homicide is committed under such cir- ciimstaiices, that it is doubtful whetlier the act was commit- ti'tl iimlit'iously, or from a well grounded a])])rehension of dan- i.'er. it is very i)roi>er that the jury sliould consider the fact that the deceased was turbulent, violent, and desperate. In determin- iiic whether the accused Iiad reasonable cause to ai>prehend great personal injury to himself." This was said in reversing a con- viction for murder, because the court had excluded evidence of- fered that the deceased was a (juarrelsonie, dangerous, and des- perate man. and in the habit of carrying weapons, as was done in tliis case. See also T/te 'State v. JficL'x, '11 Mo., 51)0. The same doctrine was announced in the state of ^linnosota in tlie case of The State v. J)anij>/iei/, 4 ]\Iinn., 440, and also in tlie State of California, 10 Cal., 3i»i>, in the case of IVw l\<>j)lo ('. Jltimn/. In tlie case above (pioted from ^Minnesota, it is said: ''The diiiracter of the deceased per se can never be material in the trial (if a party for killing, because it is as great an ollbnse to kill a liiul man as it is to kill a good man, or to kill a (piarrelsome and linital mail as it is to kill a mild and inoll'enslve man. The principle npon which this testimony is alone admitted (irises from some peculiar condition in which the facts of the lullinjf leave the crime. If the facts as established free the case from uncertainty and doubt, and leave the killing an act of pre- meditated design on the part of the defendant, the (quarrelsome character of the deceased can in no manner change the nature of the offense; but if circumstances surround the transaction which leave the intention of the defendant in committing the crime Vol. I. — 22 -'1, IP' I i '■ i 1 i : ' f Iff 338 AMERICAN CRIMINAL RKPORTS. ' v. Diiinjtlioj, 4 iMinn., 4-ir)-(l. It may he dedneed from these authorities that the |i,fi'iieriil diar. acter of the deceased for violence may he jmived wlmn it will gerve to explain the actions of the (lecea^ed at the time of tlie hilling-; that the actions which it wonhl serve to explain iniijt lirst he proved, hefore it would he admissihle as evideiia"; tluit if no such acts were i>roved as it woidd serve to expiain. itsro- jection, when oil'ered in evidence, would not In; crmr; niiil that, it' r; jected when a proper predicate has heen estahlislied for its admission, it is held error. See Irvlii v. The Stofi, deeitleil this term. This results in what has heen ])roviously attempted to he develo])ed, that the i^eneral character of the acciisud fdrvi- olence should he allowed to he proved; not as a substantive fact, in whole or in part abstractly constituting,' a defense, hat as mix iliary to, and exi)lanatory of, some fact or facts ]»roved to have . that it is admissible '"dy in a doubtful case of guilt; i-rift' is doubtful, there is no need of ]>roof of character or aiiytli...' else to help out the defense. 1 AVhart. Crim. haw, sec. ^)^^. The explanation, it is subiiiitted, is that the person killing is pre- sumed to have committed murder by tlie act of killing, and in arraying the facts to establish that he acted in self defense, if an act of the deeeased at the time of the killing is of doubtful im- port, or is otherwise of a character that it would be exphiiueil. and construed more favorably for the accused by adding to it the pn-oof of character of the deceased for violence, thcji such piwf is admissible. "Whart. Crim. Law, sec. O-il, and cases cited. The same rule would ap])ly to the proof of the deceased's habit of carrying arms when pertinent. Id. It would be easy to cite authorities opposed to the admission IIOTUJACII v. STATE. 339 of such proof upon any cciiditioii or uiulcr iiny circmnstauces 113 part of ii (lefuiise. ',1 (Jreuiil., sec. L'T, and note; 1 "VVhart. Criiii. L., Hi'C. (!41, and note. Our Criminal Code provides for the admission of the proof of tlie "t'lii'ral character of tlie (U>ceas(Ml, as a violent or danj^^erons man, wla'i\ it has been ])roved tliat he liad pr(!viously made tliroatii aj;ainst tlie life of the defendant, which tlireats are de- flaretl to he adnussihle, but not to he regarded as ailordinj^ a jnst- Hicati(»n for the otlense, unless it ho shown that at the time of tlielioniicide the person killed, by some act (h)ne, manifested an iiiti'iifidii to execute the threat so made." Taschal's Oil?., art. I'lilO. lltTC the principal object is to provitle for the admission of tlireat:;, and incidentally thereto is jiermitted the proof of tho viok'nt cliaracter of the deceased, to i!;ive force to them, and both to:,'L'tlu.'r, when proved, serve oidy t(» ex]>lain the object of an act (lone hy the deceased at the time of the killing. The main object of this provision of the code was to settle a loii^' continued controversy in the courts of this state as to wlieilior previous threats should be aflmitted at all, aiul if admit- ted, what their force and effect should be; and whether or not nprc'licatc shoidd bo first established for their admission, by r'ne pronf of some act of the deceased which they would give iioiiit to and explain. This alHrniiitive provision for the admission of the proof of the character of the deceased, as a dependent incident to threats tliat have been admitted to be ]>roved, should not bo held to op- ™U' as an ONclusion of the ])roof of character in any and all other install ^ wherein it might be equally ai)plicable and per- tinent. hi pnividing for the admission of previous threats, it simply insured also the admission of that which was neces.sary to give them their roper weight and force, without prescribing any- thing either for or against the admission of the proof of the vio- lent character of the deceased, in aid of any other fact besides threats. This provision of tlie code, it is believed, is a reenactment of the rules relating to threats, as adoj)ted, that this defend- ant res^rtod to ;'I1 other means to prevent the injur}*; Ith, that deceased was killed while in the verv act of makiui; such unlaw- fill and violent attack. And unless all four of these proi)osition3 affinuatii'ely appear in evidence, the defendant cannot be justi- ikd (.111 the ground of an unlawful and violent attack upon his jn'i'son." The secoml proposition aliove (pu)tcd is not contained in the ar- ticle of the code to which the other three relate (art. 2228, Pas- elial's DigV l>y this article, 222S, it is intended to jtrovide the the rule that where any other unlawful and violent attack is made th,iii oiie ill which the acts of the deceased manifest the intention to murder or maim (or to commit rape, robbery, arson, or theft at iiiulit), defendant is re(iuired to resort to all other means be- Kire killing his assailant for the preventioii of the injury, because ill sneli an attat.k, it is presumed that there may be time and op- piirtunity to resort to other means. Hut, as provided for uiuler the preceding article, 222<>! where, at the time of the killing, "Seme act has been done by the deceased showing evidently an in- tent to CDinmit such oU'ense " (murder or nuumiug), then and there, in that event, the party thus attacked need not resort to h r. ■ ,1 ■ i !"^^ ri'|l#' AMERICAN CRIMINAL REPORTS. Citlici" means before killiiig his assailant, bccaiisc it is prosiiincil in sucli a case that the party's safety dej)eiuls upon hir< ])roiu])t fiction in killing his adversary. Thus, when an unlawful and violent assault is coniinittotl, the degree and character t)t' iiijiin- intended by the assailant, as then indicated by his acts then done, is made the test of whether the party attached may at once kill his assailant, or must resort to all other means for the ])reventioii of the injui'y before killing him. This confusion from blemliii" the two rules might have been obviated by giving the 3il ehui^'e asked by defendant's counsel, which was refused by the court only upon the ground that it was deemed to have been " suli- etantially given." To return to the evidence excluded, it is proper to notito, ou account of the intimate relations l)et\veen threats and the general character of the deceased, that by our code threats are adniis?ililc as independent evidence, without lirst having estalillsheil a pivd- ioate for their admission by the ])roof of acts done at the time of the killing, to which they might give additional force, siibjectti liaving their effect as evidence subse(|uently explained uwiiy iiml destroyed by Liie (';uu-ge of the court in the absence of evidence tending to prove such acts. In the case of the proof of general character of the deceascil, there must be a ]tredicate established by evidence already !^u!l• initted, tending to prove threats of the deceased, or some act done by him at the time of the killing, which it would aid ur give force to, as heretofore explained; and when admitted, it Avould be proper and not charging on the weight of evidence, for the court to exjdain to the jury the (d»ject of its admission iii auxiliary and exjdanatory of the threats or acts to whieh it \va> ])ertinent, and to be not of itself independent evidence of a de- fense. The evidence exhibiting the acts of the deceased at the time of the killing constituted a })redicate for the admission of the proof of the general character of the deceased as a violent and dangerous man, and tha' .lO was in the habit of carrying weaji- C)ns, and upon that ground, such proof should have been ad- mitted. » There is also a bill of exceptions in the record, by the defend- ant as to the ruling of the court in the selection of the juiy, which recites the facts as follows: HORBACH V. STATE. 3i3 ' T 1.1 ■ir* if » ■ "After tlio state had passed severally upon Mitcli. Gray, 11. II. Lindsoy and James II. Davis, and Lefure the jury had fully been miulo up, the court ])erniitted the district attorney to clial- leiiiTC cacli of said jurors pereiii})torily, and had them stand aside, to which defeiulant e.\ce])ts." The ruling of the court was, that the state or defendant could challenge any juror, although accepted, when a new juror was chosen, initil their challenges rospecti\.ly were exhausted. Upon the trial of a capital offense, a special venire facias is ifsued for ])ersons, not less than thirty-six nor more than sixty, fur the purpose of forming a jury. ras"h. Dig., art. 30 10, and. yiowing. It is further provided that, '• in forming the jury, the names (if the persons sumnu)ned shall he called in the order they stand upon tlie list, and, if present, shall he tried as to their qualifica- tions, iuul unless challenged, shall he impaneled." I'asch. Dig., art. o^}'2-i:. J>y this we understand that they are to he challenged, cither for cause or perem])torily, severally, as each one is deter- mined hy the court to he a ([ualified juror, which is to he con- tinued, one hy one, until the jury is fully formed to the numher of twelve. We know of no law uv estahlished practice under the law, which sanctions the peremi)tory challenge of a juror hy I'itlier i>arty when thus placed on the jury, whether it is full or r.ot. There may l)e discretion in the court for excusing or stand- ing aside a juror after he is thus selected, for some good cause sliowii at the time why the juror cannot or ought not to servo iin that jury. We do not think, therefore, that the mode of se- iicting the jury that was adopted in this case is warranted hy any law of this state. for the several errors that have heen jKiinted out, and particu- larly for that of excluding the evidence otl'ered to prove the gen- eral character of the deceased for violence, and that he was in the hahit of carrying weapons, the judgment must he reversed, and the cause renumded. Jitcc/'ned and rtiaandcd. XoTE.— On tiio triiil of an imlietnient for lioiniciilc, L-vidonco offered generally to prove that the direased w;is well known, and understood to be a iiuarrel.-Duie, riot- ous and siiviii;;,' man, is inadmissilih'. If tlie oiler lie {general, and no! eonueeted with tlie defendant's .>-7((/(f.s' at tlie time, the tistinidiiy nnist neeessanly be ex- dmk'il, for it would be a barbarous tliiny: to allow A. to give as a reason for liis killing B., that B.'tj ilisposition was savaye and riotous. AViien, however, it is Hi T •y" ?*) :||i <• ' 1' ' » !' * J 'y : 1 i 1 . i i zu AMERICAN CRIMINAL REPORTS. show-n that the defendant was under a reosoniiblc fear of his life fi-om the Je- fon.scd, thi; deceiisod's temper, in connection with V're\'ious threats, etc., is gulli- ciently pjirt of the res ycntw to go iii evidence ivs exiiliuiivtory uf the utiitc of defense ui which the defendant phicod himself." 2 Whurt. Criiu. l.uw (7th ej ) §C41. In Stiitv r. linjaiit, 5-j Mo., 7o, the evidence t<"nded to nhow that tin- dccoa-cd, lit the time ho was killed, had graiiiiled the defendan*', and wa.'< tryinjr to pull a slung .shot out oi his iiocket. The defense ottered to show tliat live (li'ci'accd wah a desperatt." and dangerous man, and the evidence was excluded, lldt], enor. The court say: " Wliilst it is perfectly true that the character of the (li'coii.si'ii affords no justification, iuid will not even palliate the crime, whi.'re it ainiears that tlio defendant was the aggressor, and provoked the altercation, still it fri'i|uoiitlv becomes of great importance in deteni\i)iing the degi'ee and (jnality of tln' otfeiiso. A bad man, as well as a good one, is I'ljually under the protecti(.>n of the huv, l.mt in a case of homicide, when it is doubtful wliether it was comuiilted with iimlia' cr from a well grounded apt)re]iension of danger, it is necessaiy t(.> t.iko u\b couL-ideration the fact that the deceased wai desperate, violent or dangerous. A poa''eal)le, well disposed nuui, although in anger, might excite very httlc fear, M'liilst the menacing attitude of a cruel, vinchctive and desp(^'>, where it was doubtful wliether the killing was malicious or in self defense, the courf rejected evidence which was ollcvfil on tin; part of the defense, which went to show tliat the direased was a viulciit, rash and bloody mindi'(l man, reckh'ss of human hfe, in the habit of takiiiL;' ailvantat,'0 of his adversaries in pi'rsonal contests, and that the prisoner was well ai'iiiuilntoil v.-ith his character in this inirtieular. The rejeetioi of the <'vidi'n(e i.\ as lii'M onor. The court say: "As a general rule, it is true that the slayer can derivi' no a^l- \'antag'' from the cliaract''r of the deceased for vinleuce, provided the killing took I'iace under (ircunistances that showed he rlf ia daugi'r, Yet in cases of doubt whether the homicide was perpetrated in mali. e. or from a lirinciple of self-preseiTation, it is proper to admit any t'stiniouy caliMilatctl to illusfrati' to the jury the motive' by which the i)risoner was actuati'd. '■'> S, A: P., ;i'J.^. And in this view, we think the evidence was inii>roiierIy ruled out, Hi'a- sonable fear, under our code, repels the conclusion of malice; and has not tin; character of tlw? deceased for violi'uce nnich to do in determining the reasonahlo- ness or unreas'inableness of the fear under which the defendant claims to hav^' acted? Hoes it make no ditl'erenct! whether my adversarj' 1k> a ivckless and over- liearing bully, ii.iving a heart lost to all social ties and order, and fatally lienton mischief; or is a man of t^uaker-like mien and deiiortnient':' ( Jue who nuvur •trikes except in self-defense, and then evincing the utmost reluetance to shcJ lilood? We apprehend that the imminence of the danger, as well as the chance of escape, will depend greatly upon the temper and disposition of our foe. In ; i"};';W: PEOPLE V. ALIBEZ. 345 the.«e cases, ovory iiidividiuvl must net upon his own jiulRrocnt, ami in view of his Hilemnvcsiionsiliility to tlio liiw. If tho iissailant iiit<'ii(l to commit a trpspass onlv.to kill liim i'' >iifiiisl((ii(/hfi'r; lint if \w design to commit a fdony, thu killing i^felf-iH'''""'' iii'd jnstilialile. 1 llawlc. P. C.,ch. 28, sec. '2:5; 1 East C. L., 272. fflio, kiiowiiif,' tin; character of Kyil, tho iiiratc, or of tho infamous John A, JIiuwll, would not instantly, upon their ainn'oacii armed with deadly weapomi, id upon the presumption that rohViery, or murder, or both, were contemplated? " Pkoi'i.e vs. Aliijkz. (49 Cal., 452.) IIoMicu)!:: Dii/illciii/. On a (lemniTer for dnph'city to an indictment for mm-der. containing hut one count, ciiarf,nn;,' the mui'iier of three persons, it was Iuhl that tlie count was IhkI as charj^nny three ott'enses. The luunlfH' of three persons constitutes necessarily three ott'enses. "WAr.r.Aci;, C. J. Tlic iiidictiucnt, containiiii,^ Ijiit a single count, cliiiri,'os tliat tlie tk-fendunt "unlawfully, iiiid with malice iifoi'etlioiii,dit, and in and n]>on 1'. Aliht'z, C Aliboz and II. Ali- k'Z. dill, wilfidly, unlawfully, maliciously and feloniousl}- ad- minister a ])oisi)n<>ns dniu^, known as strychnine, with intent tlicm, the said P. Alihez, C. Aliliez and \l. Alibez, to nidawially ami niiiliciously kill and murder, and did maliciously, uidawfully amlfeloniously then, aTid there, by administering said poisonous drug, tu wit, strychnine, unlawfully, premeditatedly and with malice aforethought, kill and murder the sai'- II- ' .■'"3!" 1 ■, « 1 340 AMERICAN CRIMINAL REPORTS. indictment here, charging the defendant, as it docs, M-JtU the murder of three i)ersons, necessarily charges tlireo offenscf. The slightest examination of the statute upon the part df tlie district attorney, in the first instance, wo\dd have prevonted t-ucli a blunder. Even if he liad overlocjked it, however, at the out- set, it would seem that the demurrer and motion in arrest of judgment subsequently made ought to have called it to his at- tention. Judgment reversed aiid cause remanded, ■with directions to the court below to sustain the demurrer to the indictment, ami to dispose of the prisoner, with a view to submitting the charge to another grand jury. KiLiis, J., did not ex])ress an opinion. Note. — In Clem r. Slctfc, 42 Iiul., 420, the siiine quostion arose uiid was do- ciilod ditlert'iitly. In tliiit case, the pri.soner was indietetl for murcli'r for killing' one Jacob Yoiiny, liy a pinshot wouiitl. Slie iih'aded a fornn'r acciiiittal. Tlw 1 ilea set fortli tliiit she liad foniierly lieeii tned on an indict uient for immliv, charyinjf the killing,' of Nancy Jane Younj,' by a f,'niishot wonnd, and tliat A\ii was aciiuilted on that trial of nmrder in the first decree, and convictcil of munlr in th(! second dej,'ree, and tliat jndg-nient was rendenxl npon the venhct. Tlw plea furtlier set fortli that the two indictments cliaryed identiciUly the smw off'ens(^, and (inferentially) tliat the sauK! act caused both di-aths. To thi.s \k\i the state demurred, and tlie d'-nun-rer WiW sustained and the plea overruled, to whicli the defendant excepted. I'he defendant then pleaded not H'"'hy, ami on a second trial, was convicted of muidi'r in the second dej^ree. The case was takiu '•3' appeal to the suiireme court, where it was held that the overrulinj;: of the pka was error, and that " the killing' of two or more ])ersons by the same act cnn-ti- tuted but one crime." In sui)port of this proposition, the court cite State r. IM)'- row, 2 Tyler, .'5S7, an assault and battery case; Ben c. Stale, 22 Ala., 9, a case of poisoninjj:, and various other authorises. SAUNma:s vs. Pkoi'le. (29 Mich., 209.) IIousK OF Ii.ii Famk: Erlileiice — Pleading. In an information for lettinj,' a house for the purposes of prostitution, the state- ment of the locality of the house need not be more precise than in informa- tions for burglary or arson. Time in an information, wlun-e it is not matter of description, need not U proved tus laid. It is eiTor to allow a jury to infer a fact, of wliich there is no evidence. SAUNDERS V. PEOrLE. 3i7 ■^^^ ' 1 In a prosecution for letting a house for the puii)ose of a prostitution, it is ail- missililo to prove the roputiition of the lessee, and of girls who were seen in tlie house. Testimouy which shows that the lessee of a house and women who had been scm m (lie house; were reputed prostitutes is not, of itself, sullicient to es- tablish tlie fat't that the house is kept or used as a house of prostitution. Exc'KiTi()N>> from liocordor's Court of Detroit. Jfiddv JIuMon, Attorney (iencnil, for the people. Browse T. Vrcntia uud Gcoiye IF. Poininian, for the re- fpoiitleiit. CAMruKM,, J. Tief;i)on(.lent was convicted under section 7702 of the compiled laws, of letting" a dwell in<^ house, " knowing tliat the lessee intended to use it as a place of resort for the pur- pose of prostitution and lewdness." The same section contains aproliihitiou and penalty against knon'ingly permitting a lessee to use u dwelling house for .such purposes, but the infornuition. was cuiilined to the oilense of letting with guilty knowledge. The information was ohjectcd to as not describing the precise locality of the dwelling; and objection was also made to the proof of a lease dating back more than a year before the time set forth in the information. AVe do not think the locality needs any more precise descrip- tion under the usual practice. The name of the lessee is given. There has always been much looseness in the desci'iption of places in indictment, involvhig crimes connected with habita- tions. Indictments for burglary or arson should contain as ac- curate references to the place of the oftense as the purposes of tins statute require. ]>ut such a description as is given here would he suflicient at common law in those cases. It was certainly a stretch of propriety to give a date of leasing so very remote from the true one. But where a date is not given as a matter of description, the ]>ractice has allowed the time to he alleged without any reference whatever to the truth. We are unable to say that the variance in the present case is sucli as to all'ect the legality of the proceedings. The prosecution proved the lease by the lessee, Mary Lavall, who denied, however, that there was any improper use or intent. She was allowed, under objection from respondent, to state the amount of the rent. AV^c can see no reason why any of the terms of the lease should be excluded. But in charging the 348 AMERICAN CRIMINAL REPORTS. ■■■l^U ; ■■■ F. jury, the court jiUowed tlieui to consider the amount of tlie rent ns having a bearing on tlie likelihood of such a rate beiiiir p;\i(l exce})t for ini[)roper puri)oscs. Tliis was clearly errDi-, us there was no pro(»f introduced to create a standard of comparison; and it would 1»e extcniely dangerous to leave juries at liberty to de- rive coiudusions based upon nothing but conjecture. Objection M'as also nuxde to the introduction of testimony tending to prove that ^Mary Lavall was a woman of ill repute, and had kept houses of ill repute, and that girls seen in the house were rejuitc i to be prostitutes. It is true that n j one can be convicted upon evil repute, with- out proof of actual misconduct. Persons and houses may bear an ill name, and yet there may be nothing kiu)wn against them which would justify the interference of the law. And the re- spondent could not be lawfully convicted on such testinioi.v, without evidence of some act which comes within the statute. Ihit the fact that certain proof offered is not sufficient to nuiko out a case is no reason why it should not be receive! tn make out a part of it. It was necessary in this case, not only to prove the intended and actual use of the dwelling for tlie unlawful pur- pose, but to shew that the resjMUulent knew it was so intended when he first leased it. It is iu>t likely that persons who come to an understanding on sucli a purpose will express it in writing', or even express it at all. Criminal agreements are often, if not usually, made tacitly. They can only bo proved by circum- stances. If a ])ersun leases a house to a woman of ill repute, and knows of that repute, and the house is thenceforth used for un- lawful purposes, and such use is known to him, these facts inu:^t be regarded as having a teiulency to create belief in his guilty knowledge, or, at all events, as bearing upon that fact. All the facts cannot be brought in at once. Each is proved se[iHrately, and the order of proof must be left somewhat discretionary. If facts cnougli are not shown, the resjiondent cannot be convicted, but no relevant fact can be excbuled merely because it does not by itself ])rovc the whole case. This testimony was all relevant, and therefore properly received. AVe think, however, that an error was committed in permit- ting a conviction when there was no evidence of the main fact. The attention of the court was called to the question, and the judge was asked to charge that there was no evidence that de- SAUNDERS V. TEOPLB. 849 femliint kiunv the house was resorted to, or that it was resorted to in fact, for tlic purpose named, but this was refuaod. Tlie tcstiinouy tended to show nothing more than the evil re- pute of tlie Ics.see, and of other women who had been seen in the lioUffC. Tliore was no evidence of any acts of lewdness com- iiiittcil tlieru, and no evidence tliat men resorted there at all. If tliei'c had been })roof that tlie liouse was resorted to by men as \vcll iif^ wuiiien of ill fame, the jury could draw any reasonable iiifereiict' from such facts. J bit the law does not punish the mere letting of houses to bad characters. It is the use of the Luusc, and not merely the repute of its inmates, which the par- ticular statute under consideration was intended to reach. ■\Vliiitovcr may be the probability that the house will 1)0 im- properly used when in such hande, yet thei'o must be clear proof of intent, to satisfy the law, and the fact of such use, fn»m which in this case, the intent was sought to be derived, is not to be as- sumed without proof, direct or circumstantial. If the inmates commit otl'enses elsewhere, the landlord is not made res])onsiblc for wliat is not done on his premises, and the court erred in al- lowing the case to be disposed of without testimony tt nding to titaljlish the misuse of the house. "We do not wish to be understood as holdiui^' that if there is dear proof of a letting with the distinct understanding that the house is to be used for unlawful ])urposes, any proof of actual use would be necessary. The crime nuiy be complete at the time of tlie lettinij, and sucli is the meaniiii>- of the statute. I'ut in the ease licl'ore us, there was no ])roof of such design that could have suffictMl without the evidence of the actual use, and therefore the evidi'ure became essential. Upon the other principal rulings of the court, so far as they are likely to be called for on another trial, the objections taken do not seem to Ije based upon any substantial variance between charges asked and given. The distinctions are over nice, and lacking in importance. For the errors before noted, the conviction should be set aside and a new trial granted, and directions given to the court below accordingly. CooLEv and Ciikistiancv, JJ., concurred. Gkaves, C. J., did not sit in this case. I'll I 350 AMERICAN CRIMINAL REPORTS. Sylvkstku vs. State. (42 Tex., 49G.) House of Ill-Fame: Evidence. E\n(lcncp of tlio >x*'ni'nil reputation of a house is adniisKiblo for tlio \\m\m(i of ostalilisliiiii,' itrt ciiaraeter as a house of iirostitution. Wlictlicr such evidence is sulHcient standing nlone to snsitaiii a tonviitkui qi.iiire. Ai'i'KAr, from Criiuiiial District Court of GtiJi'rxtnn Countv. Tried below Iieforc tlie Hon. Samuel J)o(lgc. Marj Sylvester was indicted for keepiiii,' " a dissonlorlv lKni?e for the ])urposc of public prostitution, and as a conunuii result for j)rostItutes." On tlio trial, witness Drew testified that lie knew the (lefoiul- ant, and her residence, in IST-t; knew the general charactor ainl reputation of defendant to he that of keeping an assi^jmitiou house; that he had been at the house of defendant and had mot one woman there for a lascivious purpose. J)efeiidaiit lived in Galveston city, near Schmitt's garden; saw two or three other women going out at the back door at the time. Tim. Jjrown, James l»aker, and four others, testitled that tliev did not know where the house of defendant was situated as to the street, but it is situated in (lalveston city ami county; kncv the general character and reputation of defendant's house tolio that of an assignation house; and on cross-examination by de- fendant, witness stated that their information of general reputa- tion was formed from talking with their associates and acquaint- ances, and what they heard thciu say. This testimony was admitted over the objections of the de- fendant. Defeiulant was convicted, and appealed. Mills c& Ferris, for appellant. Franh M. Sjjenccr and i\^. G. Kittrell, for the state. Gould, J. The case of Morris v. The State, 38 Tex., C03, recognizes the admissibility of evidence of the general reputation of a house for the purpose of establishing its character as a hou«e of prostitution. The admissibility of such evidence is su]>poi'ted by decisions of other courts. See The State v. J/cM'/'v//, Dudley, S. C, 340; The State v. Hard, 7 Iowa, 412. AVharton says: "Commou reputation of the character of the defeudauts, pi^^^m STATE V. BOARDMAN. mt ami the house which they ke]>t, and of the persons visiting them iinJiuis^ihlo." 3 AVhart. Am. Cr. Law, sec. 2;>03. It is bt'liovotl to be well settled that the character of the oc- cupants may be cstablihhed by evidence of their general reputa- tion. 2 Dish. Cr. IV., sec. 93. AVhilst It is trtio that the admis- fibilitv of such evidence as t(j the house is denied by somo authorities (see (.'(U/i. v. Steimrt, 1 Sei'g. & Kawle, 342), we seo no sutticient reason for dc])arting from the ruling in MorrU v. The State. The case before us docs not present the question of the suf- ficiency of such evidence alone to sujiport a conviction. Ono witness testifies not only that the house was so reputed, biit pro- ceeds to state facts which show that he knew the base uses to which it M'as approi>riated. AVliatever doubt we might entertain of the sufKcioncy of evidence of the general reputation of tho liouse, unsup])orted by other testimony to justify a conviction, wo tliinlc the additional facts in evidence in this case were sufficient. A distinction is made in the argument of counsel, between an assignation house and a house of prostitution. In the absence of evidence to the contrary, we think the jury were justified in in- ferring that the use of the house as an assignation house was by common prostitutes. There was soine evidence on behalf of defendant, to the effect that she lived a quiet, peaceable life, and that there was no noise or disturbance at her house. This may have been true, and yet the house have been " disorderly '' in the meaning of the law. A house of prostitution is within the act, however quietly and peaceably it may be kej^t. The judginetit is affirmed. Affirmed. Statk vs. Boaudman. (G4 Me., 523.) IIousE OF IllFajie: Evidence. '\ Under a statuto makinpr tho keepinj? of a house of ill fame resoiicd to for lewd- ness a common miisanco, "iionse of ill fame" moans tho siunc thing aa "bawily house." Ami the gist of tho ott'ense being the use of the house for lewd purposes, ami not its reputation, evidence of tho reputation of tho house is not admissible. "f", yl?l».'> ■ill i ;i:Ui '■ \ 353 AMi:iUCAN CRIMINAL RKrollTS. In 11 ]>rosiYiitioii for ki'i'))inj; a liousi' i)f ill fame, fvidinuo of ilic ri'iKitatimi nf the wonii'ii wlio fn'mu'iit the houne, ami tlio i'Iuu'ik.'Ut of tJicir iutn iiinUoii- vi'iNiitiiiii ill 1111(1 iilioiit till' luMis'.', is ('(iiii|M'tt'iit. In II jirosiviitioii for iiiTpiiij,' u Ikhisc of ill fume, the house iiuiMt he proved (,) be a house of ill fame V)y fiietw, ami not liy fame. Dk'KKKsox, J. The (lofcMidant is indictud for l.'' 11. S.. eh. 77, ?? 1. Section 2 of the siiine (•h!ij)ter iiiakes ''iiiiv ]icrson keeping' or niiiiiitiuiiiiij^ such luiisiiiico" liahle to line ur iinjirisoiimeiit in the countj jiiil. The terms "house of ill fame'' and " bawdy liouse"' are syn. onymous. "A hawdy house," says JJouvier, " is a house uf ill fame, kept for the resort and unlawful convenience of lewd pen- pie of both sexes.'' So Archbold detines a bawdy house to he a house ke])t for the resi>rt and convenience of lewd ])eo]ilo of Ixith se.xes. 1 l)Ouvier's Law Die, li. b.; 2 Archbold's Criui. I'rac. i\: Plead., KKm; P.ish. Crim. Law (."ith ed.) 18S3; McAIJldu' v, Cfarh', 83 Conn., !>2. The common signification of the word corresponds with its technical meanimj. "A bawdv house," savs Worcester, '• is a house used forlewdilcss and prostitution, a brothel." The idiMi conve3'ed by the term "house of ill fame," or its syuonviii "bawdy house" is that of a house "resorted to for the iiurpuscs of lewdness and prostitution." A " house used as a house of ill fame" is a house thus resorted to; it cannot be so used unless it is thus resorted to, and if it is resorted to for such purpose, it is "a house used as a house of ill fame," in the ])urview of tlm statute, though it may not have that reputation. 1'he phrase, "resorted to for lewdness," contained in the statute, does not qualify, enlarge or change the meaning of the preceding clause in this case; the statute, in this case, has the same incaMiug and ajiplication Avithont as with that phrase. In order to make out the oflense charged in the indictment, under our statute, it is necessary to establish two things; tirst, that the house was used as a house of ill fame; and second, that the defendant kept it. The gist of the oii'ensc consists in the ^ ■' . ["Tf — n STATE r. BOARDMAN. 353 luc not in tlic reputation of tlic liouso. Its lepntutiun for Icwil- iii'fs iiinl |iriistituti<»n miiy be ever so cleiirly estiiMislicMl, und yet if tlie cvith-nce (U»e.s not show tlmt It was in truth utied for tlioKO i,iir|t(isL'!*, tlie tirrtt element in the ofVense im not proved; hut if tliat is iiiaile out, it is immaterial what the rei»utati(>n of the ImiisC wiis, or whether it had any. The reputation of the house, miller (Uir statute, makes no i)art of the issue. Testimony as tn its repiitiitioii has lu) tendency to estahlish the issue that it wa? inflict used as a house of ill fame, and is liuvdmissible as mere liiaiviiv evidence. On trial of an indictment for a nuisance, it i^iiot iuhiiissihle to show that the "general reputation of the sub- ji'ct of the nuisance cluu\ij;ed was that of u nuisance. 2. Whart. Criin. hiiw, ii 2:5(17; 3 (Jreenl. on Kv. (r.th ed.), jSC; 2 Hisli. Criiii. Pnic. .^ !>1. The jud<;e in the court below erred in admit- tiiijr >U('li evidence. ■\Vc lire aware that the court in Connecticut, in Cahbocll v. Tin: Stiifi, 17 Conn., 4(17, held that to support such an informa- tiiiii. under the statute of that state, it is necessary to prove that tlie p;eiioriil reputation of the house was that of a bawdy house, anil tliiit it was such in fact. To establish the first ))ro])Osition, tliecuurt in that case adniittcd evidence of reputation of tho liou^e, hut distinctly say that such testimony would be clearly ina(lmis^ible to prove that tho house was in fact a house of ill fiuno. AVe have seen that, under the phraseolog}' of our statute, it is not necessary to prove the re])utation of the house, ami tho o;ise of T''/'/"'! // r. The State, 17 Conn., 407, thus becomes au- t'lioi'ity fur excluding evidence of re])utation in this case. 2 liish. Crim. Prnc, .^ !>1. Eviilciice of the rei)utation of the women freciuenting tho house, and the character of their conversation and acts in and aliout it is competent in such cases, as the judi^c ruled. Coui- miiiiu'aiJt/, V. Kliahdll, 7 (J^ray, 32S; Coiauioniocdlth v, Gan- hiUA Allen, S. Tiic judge also properly overruled the defendant's plea. Ware V. llrt/ts 8 :Sle., 42; rublic Laws of 1808, eh. 151, § 0. l^lxcept lo n s svsta in cd. Ari'Lrrox, C. J., "Walton, Bauuows, Yiugin and Peteus, JJ., concurred. The chief justice and concurring justices appear also to have assented to this note upon the case by Vol. I. — 23 1 1 ! n i i 3 M 3oi AMERICAN CRIMINAL RErORTS. Pkteij!*, J. The lionse must Lo proved to be a house of ill fume by facts, and not by fame. ,i Bau^mer vs. State. (49 Ilia., 544.) IxCKST : Indict Dtcnt — Joint ojroisc — E/fcd of acquittal of one. Uiulor (lio sti\tiito of liuljimii iigniiist incost l)ct\voi'n stcii-son and .^top-motkrt each must liavo laio\vU'(lyo ot tlio n'l.itionship, ami an inilittiiiont ayaiii-t the stop-son which does not alh.>^'e tliat the step-uiothoi- know of HumvIa- tionship is luul on a motion to iiuash. Incest is a. joint offense, antl if one of Die parties lias been tried and acvjiii;!. i, this fact, if pleaded, Ls a bar to the prosecution of the other party f ;■ tb: same oll'euse. DowNKv, J. Tills was a prosecution against tlie appellant fur incest. Tlie charge in the indictment is as follows; ''The grand jurors fur said state of Indiana, iinpauelc'l, charged and sworn in the Wayne circuit court, to iiKiuiro witliii! and for the body of the same snid county cif \\^ayiie, upon their oatlr, charge and present that Arthui' l^aumer, late of sivjI county, at said county, on the IjOth day of ^lay, A. 1). lS74.dkl then and there unlawful]}' have sexual intercouse with his step- mother, Augusta I>aumer, then and there knowing the said Au- gusta ]*aumer h) be his step-mutlier, contrary to the furmnf the statute in such ca-jC made and provided, and against tiu peace and dignity of the state of Indiana." The defendant moved the court to (|uash the indietnioat, but his motiipii was overruled, and he excejited. lie then iilciulod w speciid jilca in bar, in which he alleged •* that the said grand jurv. which found and returned tlie indictment, at the Xovoinliir term, 1^74, of the said court, also ftiund and rcturiied at tlic same tiuie into said court as a true bill ami iiulietment w^m-: Augusta I'aumer, charging that she, the saion, Arthur liniiiiier lt!i:s defendant meaning), she, the said Augusta, then and tluro knowing that he, the said Arthur, was her step-sou, wliicluai'l Augusta Daumer so cliarged is the same Augusta IJauiuonmme'l in the said indictment against this defendant, and the said Ar- thur Eaumer named in the said indictment against the said Au- >• "i»i up"n '>w BAUMER p. STATE. 355 ,,.,jta was ami is this dcfciulant, and tlie act of sexual inter- c,iiivse eliar^'cd in said indictment is tlie same act of sexual in- torcouriie cliai\i(ed in this indictment against this defendant, and !Kiiie other, and the ofl'enses cliargcd in the said two indictments ;,) foniul and returned l)y tlic said jjjrand jury were and are tlie fiime to all intents and purposes; and afterward, to wit, at the 'aid Xoveuihor term of ?aid court, the said Auijusta Tjaunier, lieiijc arrain'iied in said crnirt n])on the said indictment found anil return™! against her as aforesaid, pleadeil not guilty thereto, riiJ the issue being joined in said cause between the state of In- ijiima and tlie said Augusta, the same came on f(»r trial in saiil fourt, anil was there tried by a jury duly im])aneled in said ooml and on said trial, it was proved by competent evidence, and lievnnd a reasonable doubt, that the said Augusta, at the time of !lie :-ai(l alleged sexual intercourse, hiul knowledge of the rela- 'iciiship existing between her and the said defendant; that she \a? iit saiil time the sttp-motlier of the said di'fendant, and he v,;i3 her stop-son ; and there was no evidence given on said trial jiiTiving, or tending to prove, that the said Augusta wis, at the ;iincof the said alleged ini;er"ouivo, or at any utlier time, insane ('!■ of unsound mind, or inca[>able ecute *he saiil indictment ai:';;'.;;:a him, and ho prays I'.iithe may l)e discharged thcrofroiu. The state demurri'(l to this answer; the demurrer was sustain- d, and till.' dufonda lit excepted. The prisniicr then pkada'd not jruilty. riie eausL' Nvas ti'i^d by a jury. There was a verdict of railty,. with punishment of nine mouths imprisonment in the (.imiity jail, dudgiuent was rendered accordingly. Thf errors assigned buiiig in arty maile criminally responsible. The oriiiiL' i- the se])arate and several crime of the parent, while the ohilJ ;■ not punishable at all. Applied to persons sustaining this ri'l;i- tion to each other, the law is like it is with reference to the ni;; tion of step-father ami step-daughter. 4. '■ If any brother and sister, bi'ing of the age of sixteen '*r ■upwards, shall have .-cxual intercourse together, having knu'.vi- edge of their consanguinity." Here, as 'inder the seeoml elaiK' of the statute, the crime is joint. The parties must have iutii. course together, with knowledge of their consanguinity. The indictment in this case is on the second clause of tic IJAUMKR V. STATE. 357 shitiitc and (•(Hisi't^ueiitly we mrd only decide iii)on the proper ,„'i>tnu'tiiia (iP thiit jKirt of the section. Tliat its ])ro])er con- ■ 11 is that wliii'h we liuve already indicated, we think is ,.,„ijal)ly clear, n[>iin the lan:,niage of the statute itself. ^reiire referred I'V counsel fur apjtellant to, and cite in su])- iioitof this construction of the statute, the fnjlowin;^ authorities: j';,!,. Si- '"!•■. nes, sees. TOi'. T-'l and 7;51; 77it' Sf(/f, r. /Ji/roii, :'-iMo., -lo; .\nhler. TJir Sintr, ±1 ( )hi,, St., ."iil; Drhnirtj c. JkPcoph'y 10 ]\rich., '1A\. In the last iianietl case, the inforin- itiiiinvii?; (»M ;i statute, the lani;'nap,'e of which, so far as it allected itca-c in jiid.LTnient, was as follows: '• If any man and wmnan, ,; • !ii',:';j; inariied to each tither, shall lewdly and lascivit)usly avdciatc iuid cohal)it together, * ■' eveiy suci, person shall ■f piini.dit'd," etc. It was held that tlic oU'ense was joint, and t'i;itli(ith uf the parties must he jj,MiiIty, or neither. The iiidictiuent in the case which we are considering alleges ,:i!v that the defendant "did uidawfnlly have sexual interconrso ■;it!i Ills step-mother, Augusta Haunier, then and there knowing •'.•■-iiid Augusta llaunn r to he his step-mother." Such an allega- ;;i;iiif the crime niiglit have lieeii good, according to our view of :!:c statute, hail the indictment heeu against a step-father, or a ;*ent, where the guilty i)articipation of the other party to the ;rt i> not !i ueceMsary ingredient of the crinu', Ihit, as hetweeii f;ip-iiuitlier ami step-son, where the crime is joint, and where l«it!i must lie guilty, or m-ither, we thiidc it is fatally defective. It follows, from what has already iieen said, that the court (Twl in >ustaining tlu; demurrer to the answer of the defendant, stting up the ac(piittal of Augusta I'aumer, the step-ni.;t!icr, liidotlior ]iarty to the alU'ged joint crime. Ill additiuii to the ahovo cited authoi'ities, we may, on this 1 'lint, refer to the following: Stiit.i; r. Z'v///, '2 Dev., ,■)*»;>; T/ie Ivit'j r. Till' I iilinhitdiits, di-',., lo East, -111; Tiirp'ui 0. The V4.4 lilackf., 72. hi tlie last named case, wdiich was a prosecution for riot against tinvopersims, upon the trial, two were acipiitted, and (uie found j'iiilty. It was held that uixui this verdict, no judgment could V'l'rrinouheeil against the defendant found guilty. In the case •ilhlanri/ r. Tlw l\ i>pl,,,supi'uvieteiaMisliiMl liy a t'lviKindcninci' nf trstinmnyiiiil is not ri'unii-ed to lie proved beyond a reasonalile doiil>t. Ey tuk Court.— In sain ty of tlie defendant at tlie time of tliu commission of the allci^ed oilense was one of the dei'eiisi's n. lied upon at the trial. On this ])oint the court eliari;e(l llmjiiiv; '• You cannot ac(|uit him on tlie ground of insanity, heciuisi' a doul)t may arise in your minds on the (|uesti<)n. I lis iii.-;uii!v must be made tt> ajjpear to you beyond a reas(.)nal)le doiilit." fc>ome of the authorities hold this to be the correct rule; but i:i this state the contrary rule has been settletl by several dccisimis of the court, the latest of whicdi w.is in the case of the Vi'.opk <'. MvDonndl, ■il C-al., 13-k In that case we held that wliile tlic burden of proof is on the defendant to establish the insanitj, it is sufficient to prove it by a ])rc^])onderance of evidence, in other Avoi'ds, that "insanity must be clearly established by satisl'actoiy evidence 1 " Judgment reversed, and cause remanded for a new trial. "Wam.aci:, Vj. d., concurring. As to whether a iirisoiicr iv!y- ing upon the defense of iiisunity at the time cd' the (•(iinmi.'^.-ii^ii of the act charged against him as a crime, may rest u]"'!' mere i>vepouderating evidence of the fact of insanity, or iiiuti T""!!-^^ SULLIVAN t'. TEOPLE. 359 ( ? 7 ( il ,„) further and cstaMisli liis alleged iiisunity l)cyond a rcason- iiljle doubt, is a (question 111)011 which tlie authoi'itie.s arc in coii- lliet. Ill ^'i*^\^' *^f t^^^ notorious facility with wliich this dofcnso ij often availed of to shield the i^uilty frcMu just punishment, IslioiilJ, if the matter were res in/ci/ni in this court, he inclined to adopt the latter rule. ]>ut in the case of T/ie l*et>jffe v. Cojj'- j„(M,24 Cal., 2;50, the question was thorou^ddy considered here, and it was held that infinity miu,dit Iwj established in a criminal rtju by the same amount of evidence hy which it mii^ht ho I'-tiiblislicd in a civil action involving the question, that is, hy iiiureprt'iionderating evidence; and, njjon the authority of that case, I concur in the judgment in this case. SULMVAN vs. PkoI'LE. (:U Mich., 1.) Insanity : rrdclicc — lioiKirk hi/ court in jinmncc ofjiirij. Evuknce Unit tin- rcsiicnidi'iit wiis iiisaiu' "on tlic iii>;lit ol' tlu? tliiid or Iho mnniiiif,' of tin' fourth of .Tiuiuiiry," wlion tliis i.-! all tin' cviilrncc th;it Ik; wum pvor msii lie, iiml whoro thcn^ liutl liccn I'vidcnec! tliiit lie w IS never insane, has no tendency to prove that he wiis iiisiuic on tin; nioriiin;^' of the second of Jiuiiiary. k liy the court, iulverse io the iirisoiur in the jiresenee of ler reillill on.^idered on writ of e though i( were a jiart of An iiiii)ro[ tlicjin-; chartre. 'J'liowiirt has no riyiit, to say in the proseni'O of tiio jury that it was th(! , at, etc., wilfully and feloniously, and (»f malice aforethought, assault- ed, beiitcn. and wounded one William W. Perry, with the intent, liim, the said I'erry. then antl there t:» kill and murder. The defendant below (plaintill' in error) was convicted, and sentenced to the state prison at Jackson for ten years. )' ^' lu:^ SCO AMRRTCAN CRT^FINAL RErORTS. "Tliorc was evidence " (us appears 1>y tlic bill of o.\«'ptioii>^) " tend iiip^ to show that respoiidoiit, on the iiiorniiig of .laiiuiirv 2, 1874, confessed Iiavini;^ assaulted eonii)laiiiini'' witniss in ti||> manner eharij^ed in the information." And for the ])nr}M)st>, as it would seem from the reei>rd, of avoidiui^ the foree of this I'nn- fessioii !is evidtniee, the defendant seems to have unck'rtiila'ii tn ■jirove that he was insane when he made the eoiiiVssidii — ii,,t when he eonimitted the oflense — ami several eNeeptimis wore taken to the judi!;e's ehari;"e as to the burden of proof upon that (piestioii, the nature of the evidence ^-iven upon it, and to a clmise in the chari^e inqtlyinif that defendant must conclusively prove the insanity. r>nt we think all nce. It is theivfore (piitr iiiiiii;i- Icrial U])on this record what rulinj^s the court may have iiiaile (•ouiU'ctt'- i-igned as error upon this I'ctiord. J>ut the defendant set np in defens(\ and intro liiccd cviilciuo tendiii;;; to ])rove an (iIUh. Ihit niiou his pivliminarv cMiiniiia- tiou before the exaniiniiiir man'istrate, he oU'erctl iin I'viiKniiL whatever. As to ])roof of the ^/ ///>/, it is objected that the court iiistnietcil the jury that it m\ist be ])roved conclusively, or beyond a diml't. to constitute a defense. Thoui^li such hin;^uai'-c was incidcntiilly nsed in one ]>art of the char<^e, I am strony-ly inclined to think such was not the fair meanini; of the Avholc charge npnii tlii- i.ubjcct when taken to^-ether. Tlu; whole ehai'^^^e upon tlii> point, after ]>roperIy definiiii^ an r/ ///>/, was this: ''"When such a ilcfen-e is made and proven, it is conclusive. It is the best defense diiit SULLIVAN V. PEOrLE. 301 m. can be interposed. It leaves no (lonl)t of the innocence of the iiiU'ty accused, but it must be Siitisfiietory. Tliere must l)c no (loiilit uIxHit it, or else you cannot ijive it iiiucli credence; so that it l)ec'omos very iinjiortant in connection with space and distance. You must he satisfied that the time and s])ace correspond, and itlieiiii^ proved satisfactorily to yon, and l)eini:;- foumi to ho rea- i:riiiiil»le with time and distance, tlien it is conclusive. Then, iifter coaimentiui!,' n])on the ])ro(»f of insanity, which is not here iiKiiicstiuii, lie concludes his charii^e as follows: " Uiit it is your (liitv, t,'ciitlemen, to take the whole case, under the evidenci; for the pi.'oj)U', and for the defense, and weii^h it carefully — ^cvery ti'illiii<,M'ircumstance, every fact, remote or ])ro.\imate, ond- ciit, you must i^ive him the benejit of that doubt. Entertaininj^ siieli a doubt, your verdict will be not t^'uilty, and you mur-t ac- quit.'' This last ])ortion of the char^-e, if understood by th(! jury as (xtendini:; to the (|UCstion of an nHhi, as I am incliiu'd to think tlioy luust hav(! understood it, would have corrected the error of tlie previous statement, that " there must be no doid)t about it;" iiii'l tlie doubt referrecl to would be understoot otdy see from tlio ivi'iinl a probability that the defendant h:*s not I>een injrired l)y iniy tMTiiueoiis expre-^-ioii in tlie eharije, -iiL wi' must bi; satisHoil I'OVdnd any HMx'nable donbt, that ho could not biivi' been .>o injured. AVe luvl not, however, determine this partie\ilar (piestion in tliis case, as there is anothiT t'rmr in the record f.ir which the juilijiiieul must lie reversed; and this particn'.r tjue-tiou will lint he likt'ly to ari.-e in the same form upon ji new trial. The iwml states that dnriiiii; the elo>inir riLrument for the i)rosecu- timi, Mr. ('hainlhr. (uie uf the counsel for x\w peojtlo, com- uieiitcd adversely to the respondent u])on the fact that he, the 1 WMl\ k 'If i ■ i'''f, n t , •J' iSf ' . 1 , ; 11' J Vi H«' ^1 302 AMEiaCAN CRIMINAL REPORTS. respondent, did not interpose tlio defense of an alihi on tlic exiiiniuiitiuii before tlie niii^istnite, it bein^ a iiiiitter of roconl and tlie fact a[>peariiiij^ tliat tlie respondent oilered no dofoii^c before tlie e.xaiaiiiiii;^ niae duty of a res|)ondent, m-Iiuu ho has a _i;'ood defense in tlie nature of an dllhl, to inter[)oso tlmt defense at the earliest moment [)OHsiblc; and a respondent sIkiuIiI oiler his defonse of an (ilibl Itefore an examininL? maj^istrate, with a view to savint-' himself anxiety and trouble, and the people tlio great expense of a trial." Now, while for myself I thiidc it may sometimes de])end upon the circumstances of the case> whether tlie nei^lect of a ]tri.-()iior to interpose such a defense befnsiderod by the jury (a ])oint upon which my l)retliren reserve any opin- ion), yet, 1 think it <|uite clear the jud<^e went too far in the present case, when, in the presence of the jury, and thererore haviiii^ the same ellect as if addressed to them, he used the luii- guage above cited. It is easy to see that there may have heou good reasons why the defendant, however innocent, should, iis matter of prudence, have neglected to go into the evidence of the alibi beft)re the magistrate. It dcjes not even a])jH'!n- tluit the witnesses sworn on the trial were present or attainable at the examination. The judgment must be reversed, and a new trial awarded. The other justices concurred. Wamcku vs. SrATE. (r.'J Ala., :{7G.) Buuoi.Aitv: Chimnoj. ' On an iinlicimt'nt for burghiry, ontoring through tlic chinnioy of a cotton liouso is 11 bn'iikiiig. JuuGK, J. The indictment in this case was for burglary, ami charged the defendant witli breaking into and entering the cut- STATE V. rOTTS. 363 ton liouRC of Arcliie KidiDlson. Tlie evidence tended to show that the dcl'eiidiint entered tlie liouse l>y i,'()in_i^ down tlie eliini- nev. mid tluit after tlius entering, lie ^ot out of tlie lioii.se tliroiigli nwimlnu-, by breaking the fasiteiiing of the window from the iiinide of the house. It in iiigenioiiisly conten of the lluvi-i'd (\>(le, there should be a breaking into and entering one (if tlio houses described in said section; and that as the eviilencc in this ease showed, that the defendant entered and broke out of the liniise, he was not guilty of the oilense charged. ]ly the common law, descending the chimney of a liouse is an actual hivaking, as much so in legal ell'ect as would be the forci- ble breaking into a house by any other means. 3 CJreenl. Ev., ^ 7(1. And such was recognized to be the law by this court in Dmohoc r. The State, 30 Ala., 2Sl. Ill that case the defendant got into and attempted to descend the chiiiiuey of a storehouse, but was arrested in his descent, Avheii near the arch of the iireplace, by the sinallness of the a])er- tiiro; aiitl he became so tight and fast that he could not be ])ulled out, either at the top of the chimney or at the lire2)lace below, anil till' chimney had to be jnilled down to e.\tricate him. Al- tlumgh the defendant did not enter any room (d' the house, ho was adjudged to have been guilty (»f the burglary. The court held that a chimney is a necessary opening, and needs protection, as a part of the dwelling house, it being as much closed as the nature of tilings will admit; and this decision seems to have liei'u well fortified by the numerous authorities cited in tlio opinion t)f the court. There is no error in the record, and the judgment of the cir- cuit court is alHrmed. Statk vs. Potts. {Ih N. C, 1'20.) DuKGLAHv: DuvUlng house. If a paii of a storolionsi', I'Oiiiiniinieutiiii,' with tlic part iisoil as a Rtoi'O, Lc slept ill hiiliitiially liy tlio owner or by oiu; of liis family, although he sleeps there to protect the i)reiiii.ses, it is his (.Uvelliiiy house. 304 AMERICAN CRIMINAL REPORTS. m m ?■■(»' If a person wlio ^l(•(■|ls in ii jiiirt of u. store Imnse roinniiniieiitin},'\vitli tlii' \r,\\i used us ;i store is not tiie owner, or one of iiis- fiiniily or servinils, Kiit i-: I'ln- pK/Vi'tl to sleep tliere solely for the purpose of prott'Ctin^f tlie i)reiuisi's, lie |^ only ii Wiitelmiiin, iiml tlie store is not adwellinj;- lioiise. TtoDMAN, .r. Tliore ins no 8tiitii'(j in Ndi'tli ("ai-olinii (■li;ini,qii(>' the (Mmmiuii law (Icliiiition nf Ijiir^liiry, wliicli is: Tin" lireuk- iiio; iiiul I'litc'riiio; of //h; thi'iUhn/ Iiokkc ttf iiiioflirr in the uii^iit tnnt', with intent to coniniit ii felony tlierein. The (jnestioii in tliis ease is: AVas tlie lionse into wliicli the |iri>uuer hroke iiiul ontere*!, tlii' (InuUhuj luxixc of tiie j)roseeutor, I)avi>? Tlio house helonjo-ed to Davis, and was used as a store; a small >\\\w^ was ]iartiti(»ned oil' from the sloriM'oom for a iKsd-i-ooin, ami it had heen oeenpitMl as such re:::^uhirly for ahout four years, either hy J)iivis or l>y some clerk, or other ])erson l»y his lieeiise. it was tilept in on the nii^ht of the hreakiui^, ami liad heen, on every uiijjht f(»r a nnnitli hefore that nio;ht, liy one Lanih, who was oni- l)loyed hy Davis to sleej) there for ilie iiurpose of jirotectini; tlio jtreniises. Land) was not a niend»erof the family of Davis, nur employed hy him otherwise than as stated. The Attorney (ieneral relies on the Sluti' i\()iifhni\1'l N. (',, 598. That case can only he distinujuished from the presiut liy the fact that Ilarriss (the |)ers<»u who slept in ('nnninn'hanrti store) was a clerk of ( •unnin,o;haiU and hoarded in his rainily. It was evident that he slept in the store for the ]trotection of the ])remises. AV^e do not donht the decision in that case;. The dil'- fercnces hetween that case and the present may seem very .-li^ht, vet if thev he su<*h as are recojriii/ed hv the authorities frnu ■which we derive the law on this suhject, we are hound to reeoi;- uize them as distinifuishini^ the two cases, ("onsiderim;- the va- rious ways in which houses nniy he occupied, it is not the fault of the law if the line of sei»aratiou is thin, or even artilieiiil. The followiuf^ (piotations are all from 2 Kast I*. ('., pp. IHT, r*'\ It is clear that if no ])erson sleejts in a house it is not hurii'hiry to l)rcak in it. ITdlUwd^ti Ciisc \n .Iirrtti' li/onj hi a warehouse tv wdtch (joat/.s, in/iich is onhj for a 2)artlciil(C/' pitfjwse, doo6 not make it a dwelling house. STA'I'l': r. rOTTS. 3C5 111 Ftiller^s C<(st\ tlio lioiist?, wliidi wiis a new one, was fin- islicil except the jiuiiitiiif; and ;;la/,iii;ii^, and a worUiiuvn employed 1)V tlie owner ft there, nor any of his family. //( /7, not a dwelling. In J)in'i,s' i'(/.vr, one I'earee owned the house, hut residetl at a distant plaee. It was not inhahited in the daytime, hut a ser- vant of the owner slept there eonslantly for about three weeks, golely for the j)urpos(; of protectiiij^ the furniture till a tenant cmild he jn'oeured. //i/if, not a dwelling house. It seems from these eases, that if i)art of a storehouse, eom- imiiiieating with the ])art useerdoii who sleeps .iiere is not the owner or one of his family or ser- vants, l»ut is employed to sleep there solely for the pur[)osi> of pniteetliig the premises, he is only a watchman, and the store is not a dwelling house. The distinction is not altogether arbitrary or without reason. To break into a house where the proi)rietor or any of his family nleep is apj)arently a more heinous otleiise and calculated to pro- duce greater aitpreheiision and alarm, than to break into a huuso occupied ])rimarily for business, although a watchman is em- idoyed to slcej) tlii-re. It is eoiiipetent for the legishiture to pun- ish the latter olleiiso in any manner otherwise than capital that I have not seen th ' l)rop ».>' any state such an oH'ense is eapital, as it would be in this state if held to be burglary. In Xew York it is burglary by statute, l)Ut it is jiunishable only by imprisonment in the penitentiary. As oiir opinion on this (piestion entitles the ])risoner to a new trial, it is unnecessary to consider the other (j^uestions raised on, the record. Tliure is error in tlie judgment below, which is re'i" sed. Let this u[»inion be certilied to the end, etc. ^ 1 1 I Tku Clkiam: Jiuhjincnt reversed. IMAGE EVALUATION TEST TARGET (MT-3) (/ JS' o 1.0 1.1 11.25 ■10 ^^ ■■■ :» L£ 12.0 li£ I Hiotografte Sciences Corporation 4s \ ^\^ k*^" <^ • *<>. ^^ ^A.^'^ 23 WIST MAIN STMIT WIISTIR,N.Y. 145M (716)t71-4S03 366 A^IERICAX CRIMINAL REPORTS. "Woodward vs. State. (54 Ga., lOG.) BunoLAiiY: Intent — Evidence. Evidence that the respondent entered the prosecutor's house between twelve and one o'clock at nigiit by riiising a window of tiie room in which the prosecutor and his wife were sleepinjr, and, when discovered, went out throng'h the wimlow, tliere beinjr money and Hotliing in the room, is snfti- cient to sustain n conviction for burj,dary, although it does not appear tlmt respondent stole anything. The intent with which a prisoner breaks and enters the dwellinfjr house of an- other m tlie ni;jht time is a question of fact for the jury under all the factn and circumstances of the case. "Warxkk, C. J. The (lefendant was indicted for the offens^o of "burglary in tlio niglit time," and on trial thereof, was found guilty by tlie jury. A motion was made for a new trial, on tlio ground that the verdict was contrary to law, contrary to the evi- dence, and without evidence to support it, which motion was overruled by the court, and the defendant excej>ted. It appears from the evidence in tlio record that the defejidant, between tlio hours of twelve and one o'clock at night, raised the back windo-v sash of the prosecutor's dwelling house, in which he and his wife were sleeping, propped it up with a stick, and ejitered tlio room through the window, and when discovered, went out at tlie window, was pursued and caught. There was money and cloth- ing in the room. Prosecutor had $100 in his vest pocket, liang- ing on the l)od post, but it does not appear that the defendant stole anything. Burghiry, as defined by the code, is the breakijig and entei-- ing into the dwelling, mansion or storehouse, or otiier place ot business of anotlier where valuable goods, wares, j)roduce or any other articles of value arc contained or stored, with intent to commit a felony or larceny: Code, sec. 4;3'^0. The defendant is char-i-ed with having Itroke and entered the house witli intent to commit a larceny, and tlie point made is, that tlicre is no evi- dence that such was the intenti(»n of tlie defendant. The intention of tlie defendant can only be ascertained from his acts and conduct, and it was a question for the jury to de- cide, under the facts and circumstances as detailed by tlie cvi- dence, what was the defendant's intention in breaking and enter- WATERS V. STATE. 367 ing the house at the time of night as proved by the prosecutor. Koscoe's Crim. Ev., 3G7. We find no error in overruling the motion for a new trial. Let the judgment of the court below be affirmed. Waters vs. State. (53 Ga., 567.) Burglary: Evidence. In a prosecution for burglaiy, the testimony should bo such as to the time when it was committed as to exchide all reasonable doubt that it was committed in the night time, f a prosecution for burglary, whore the evidence leaves the time in which the offense was conuuitted exactly balanced Ijotwoon day and night, that is, that it was committed witliin a period of about forty or forty-five minutes, one-half of which was day and one-half of which was nigiit, the defendant should have tlie Ijcnefit of the doubt necessarily arising, and ought not to bo convictcunishable with death, or, l)y special recommeiul'ition of the jury, by imprisonment for life, whilst the penalty for burglary in the day was imprison- ment from tliree to five years. Kev, Code, sees. 4321, 4322. Xow the penalty for the former is i.iprisonment from five to twenty years; for the latter it is unchanged. Would it be going too far to say tliat when one is prosecuted for burglary in the night, the testimony should be such as to the time when it was committed as to exclude all reasonable doubt upon that point, before a verdict of guilty could be authorized? If there had been no change in the ])enalty, and that was yet a cai)ital one, tlie rule would scarcely bo doubted. As it is, the maximum for one grade is twenty years in the penitentiary; for the other, five years. 308 AMERICAN CRIMINAL RErORTS. 2. Where the evidence leaves tlie time in which the offense was conmiitted exactly balanced between day and night, that is, that it wa.s conmiitted within the period of about forty or forty- five minutes, one-half of which was day and one-half was night, the defendant t^honld have the benefit of tlu doubt necessarily arising, and the conviction should not be for the highest grade. If a jury reasonably doubt whether a defendant 1k3 guilty uf murder or manslaughter, that doubt is resolved in favor of lil'o. So, if the doubt be as to different grades of manslaughter, the defendant should have the benefit of it, and the lowest grade covered by that doubt is to be found. It would be difHcult fa limit the application of this })rinciple, and we think it should control this case. The chief evidence against this defendant was the fact that he was in possession of the watch, which was taken from the house several days after the bur years; he worked for me in 1871. William Ilichardson, the colored man to whom the pris- oner referred, has worked for me regularly for the last two years; he has not lost ten days. When my boat would come up the river, I usually sent some of the hands, when there was nothing else to do, to my house to saw wood. Ilichardson was up at Fajetteville the night my house was robbed; he frequently chopped wood at my house; he claimed to stay at Allen Harris', near the fiour warehouse, one hundred yards from my house. I had Ilichardson arrested and put in jail for this charge. The prisoner was arrested first, and on the same evening I had Rich- ardson arrested. All I had against Ilichardson M'as the prison- er's statement. Both were put in jail. I had before this caused the arrest of two other men, Abram Williams and Adam Jessup, who were both discharged. Willi.am Richardson was used as a 372 AMEinCAN CRIMINAL REPORTS. H- I i i's witness. I liad twelve boat hands under me. I carried the watch before the war. Illchardson had as good a chance to see the watcli as tlie prisoner; I liave stood witli the watch in niy hand, timing boat liaiids in rolling Imrrels. I would not swear the prisoner ever saw the hands of the watch or the engraving of the hunter on the case. I have never seen my watch since it was stolen; I did not see the vest from the lime it was taken, on the 11th of August, at night, until I saw it in tlie prisoner's house two weeks after the 4th of December, on I'riday. I did not tell the prisoner what he was arrested for; I did not tell him I had got my vest; he told me without hesitation about his get- ting the things from Richardson. Kichardson was in town the night my house and kitchen were robbed, and the next day. Upon redirect examination the witness testified: The prisoner said the butter was in a tin package, sealed up like a paint can. I asked, " What did you do with that pack- age?" lie said, " We used a part, and I carried the balance to my sister the day before." This conversation occurred the day of the arrest, on a Friday, two weeks after the -tth of December, ISTl, being the ISth of the month. I did not lose cheese and butter on the occasion of my house being entered on the night 01 the 11th of August, but on a subseciuent occasion when my house was entered again by some one. The prisoner described the watch as having a white face, large steel hands, and ordinary chain worn smooth. Ca])t. Oldham was introduced as a witness on behalf of the state, and testified as follows: I know the prisoner. 1 saw him in AVihnington on the 12th of September last on board of a ves- sel run by Oapt. Lyons, lying at Joppill's wharf. I then saw in the hands of the ])risoner on board the vessel a double cased watch with a landscajie engraved on one side, and on the other a luinter, a deer, and a dog. It had a white face and large steel hands; its number was 32,308. I made a memorandum at the time. I asked the prisoner his object in selling, lie said he was then away from home, without money, and sick, and wanted money to get home with, and that he lived in Charleston, that he would take $75 for it, but would prefer to pawn it for $20 as he had owned it a long time, and hated to i)art with it. I asked what guaranty he would give that the watch would be called for. He answered that he had owned the watch a long time and STATE V. McDonald. 373 swinging It around liis head ho said ho would not Vo afraid to sliow it in any city. I asked hinx to give nio tho names of sonic people living in Charleston. Ho mentioned some names. I did not know tlieni. I knew sucli names in ^Vilmington. I am not acquainted in Charleston. When I went up tu him he had tlio watch and chain hoth in his pocket and out of siglit. I went to (lucstion him in conse(pience of information I had received. I afterwards, during tho same day, ^eareiled tho wharf for tho prisoner, and could not find him. Search was also nuide by de- tectives, but wo did not find him. Upon cross-examination the witness testified: I never saw tho prisoner before the 1:2th of September last. I took down the number of the watch. A man came to me and asked nio to go and look at the watch. It was Ca})t. Lyons of the schooner. I told the prisioner that $75 was more than I would give for tho watch. Cai)t. Lyons was on board tho vessel when I got there. So was tho ]>risoner. I told Capt. Lyons I had come to see the watch, and he pointed out the prisoner tome. I went up to tho prisoner, and asked to see the watch ho wanted to sell. I do not know whether Capt. Lyons bouglit tho watch. I left the pris- oner on board. 1 was there some fifteen minutes. I did not search any house in "Wilmington for the prisoner. I did not take down tho name of tho maker of tho watch. AVilliam llichardson, a witnc^ss for the state, testified as fol- lows: I have l>een working for Capt. Green for three years. I never sold a vest, or butter, or cheese to Robert McDonald. I never gave him a watch to sell. Upon cross-examination tho witness testified: I live below the fiour warehouse. I work for Capt. Green on tho boat, and sometimes cut wood for him at his house. I came up the river the morning of that night on the boat witii Capt. Green. That niglit I was out between 11 and 12 o'clock. There was a littlo festival iroinj; on in town that nii^ht. Iwentthereand ifot home at 11 or 12 o'clock. This was tho night of the last robbing. On tho night of tho first robbing there was a procession in Fay- ettevillc, and it was raining. I was in the street awhile burning barrels. I was at Capt. Green's next morning about 7 o'clock. I lived one hundred yards oft'. I had heard up the street about the robbing and I went to see and look about. I saw they had robbed tho house. I was arrested by the deputy sheriff the saiao m If: V, .«.,?■• ■ T ■ - :■! -j 874 AMERICAN CRIMINAL REPORTS. day the prisoner was, wliile I was at work on the boat. I proved where I was, Ned Gihnoro was c/ne of my witnesses. Julius Evans and Sam Jones proved where I was. They were examined by 'Squire AVhiteliead. The prisoner did not j^et any of the thing's from me. 1 know Capt. (Jreens' wateh because it was a watch lie had a lon<^ time, aiul I saw it so often. He ])ulled it out sooften when I worked under him. It had a white face and the largest steel hands I ever saw on a watch- It was a dnublo case gold watch. I never had hold of it. It had a heavy gold or plated chain. I have vests (the witness had on no vest at tlio time); I never sold any to the ]>risoner. I came from Uhukii county and formerly belonged to Dr. liichardsun. I used tonui on the railroad train, but my partner got his arm cut oil" and I quit. His name was AV^ash. Cha])man. "We were train hands. Upon redirect examination the witness testilied: I asked the prisoner while we were in jail, why he had me ])ut in jail for noth- ing?' lie said somebody like me brought the thing to him. The prisoner was not working on the boat when this hapi)ened. Josejdi A. "Worth, a witness for the state, testified : " On one occasion after the prisoner was committed to jail by the justice of the ])eace, I went to see him, in company with the deputy sherill" and Captain Green, to get information about (Captain (Jreen's watch. The prisoner was told he was not bound to answer, and that anything he said might be used against him. I asked hiiu where he got the ten dollars in money he had sent his wife." The prisoner objected to the evidence of the witness, on the ground that he was a witness and also foreman of the grand jury that passed the bill which was now being tried. The counsel fur the prisoner took the ground that he was on that account an in- competent witness; as presiding officer of the grand jury he was, in efl'ect, a judge, and could not also be a witness in a case before him. The witness stated that he was foreman of the graTid jury, and had been sworn as a witness and examined Ijefore the -n-aiid jury, but did not vote upon the bill. The rest of the grand jury were all present, and voted aye on the bill. There was no dis- senting voice. It was usufil when there was any dissenting voice to require a division. There was no dissenting voice and no di- vision in this case. Ills honor overruled the objection, and the prisoner excepted. The witness then testified: "The prisoner, in reply to my STATE r. McDONALD. 375 't>VOtl lined the Viis ;i 0(1 it ukI iihlo (lor tlio iik'ii run iii.l I uids. 1 the Uitll- The question, snid tliat lie had carried four dollara away from hero with liim, and had earned the otlier six on the wharf, in AVil- niingtun. I asked him if he really did sell the watch to the cap- tain of the vessel? lie answered 'yes.' " Upon cross-examination, the witness testified : " I was ])res- ent at the trial before 'S(j^u ire Whitehead, the examining justice. ]}(»th Ilichardson and the prisoner were charged. Gilmore wa3 examined, but not as to an alibi for Ilichardson. Julius Wil- liams was there. Ilichardson was examined." Uj)on redirect examination, the witness testified: " I have known the prisoner for several years; his means are limited; he is a labur'jig man, and lives by work." Thomas J. Cireen was recalled by the state, and testified: " I think I know the general character of the witness AVilliam Tlich • ardson. His associates think well of him; I have never heard him accused of stealing." Upon cross-examination, the witness stated that he had Ilich- ardson arrested about this matter. The counsel for the prisoner asked the court to charge the jury: 1. That there is no evidence that the house of the prosecutor, Cai)tain Thomas J. Green, was broken and entered in the night time; that in a charge of this nature, time was a material circum- stance to be established, and by direct and positive testimony, and not by mere inference. 2. That the ])ossession by the prisoner was not a recent pos- session, so as to raise a presumption in law that the prisoner stole them. IJis honor declined to give the first instruction prayed for, and charged the jury in relation thereto as follows: "That it was absolutely necessary for the state to prove, to the entire satisfaction of the jury, that the breaking and entering was done in the night time, that is, at a time whon there was not daylight enough to discern a man's face in the yard. That it was competent to prove this, as well as other indictments of bur- glary, by circumstantial evidence. The eft'ect of the evidence, however, must be so convincing on the minds of the jury as the sworn evidence of a credible eye witness. The jury are not to jump at conclusions. In this case there is some evidence to be considered by the jury, that the breaking and entering was done f^ •^; K« : 370 AMERICAN CRIMINAL REPORTS. in the iii^'ht time. Tlio circnmstiinccs cletiiiletl in the evidence, tending to show this, have been referred to hy the coimsol on the part of tlie state, viz.: tlie early lionr when the discovery was made hy Captain Green that liis lionse had heen entered and I'obhed, stating tliat lie rose when it was clearly light, between daylight and sunrise, the ])rej)aration made for etl'eeting the en- trance, the getting together under the windov.', the axe, box und chair, involving the expenditure of time in making these arrango- ments, the time taken in efl'ecting the entrance and eon»pletiiig the robl)ery in the house, the situation of the house on a public street in Fayetteville, involving ex])osnre if the entrance had not been elleeted i.i the dark." These circumstances were pressed npon their attention by the counsel, to satisfv them ti*iat the breaking and entering was done ii: the night time. The state must satisfy the minds of the jury upon this point beyond a reasonable d(jubt, otherwise a conviction of burglary is out of the question. To this charge uf his honor the prisoner excepted, llis honor gave the second instruction prayed for, but added: "AVliile the |)Ossession by the prisoner of the watch and vest, owing to the lapse of time since the loss, was not a recent jios- session, so as to raise a legal jiresumption of gnilt, yet the fact of possession is a circumstance to be considered along with tlio other circumstances of the case, in determining the (juostioa whether the ]>risoner was guilty of the larceny. Whether these circumstances were proved, and what weight they were entitled to, it was a question for the jnry to say. Among these was tlio circumstance that the articles, the vest and the watch, stolen from the house at the same time, are found in the possession of the prisoner; that one of the articles, the watch, was of a nature and value nnsuited to the means and condition in life of the prisoner; that he was contradicted by AVilliani llichardson in his acconnt as to how he came by these articles ; the conflicting character of his own statements in reference to the watoh, made to Green and Oldham." To the foregoing portion of his honor's charge, the prisoner excepted, especially to his honor's including in the enumeration of circumstances " that one of these articles, the watch, was of a natnre and value nnsuited to the means and condition in life of thej)risoner." ; STATE r. McDONALD. 377 !ncc, on was iind Vl't'M en- iiiul )Iic not The jury returned a verdict of "iifuilty of buvfjlary," and there- ui)">a the i)ri6oner moved for a new trial. The motion was over- ruled, and the ])risoner moved in arrest of judgment upon these trrounds: 1. J'ecanso tlie indictment was conclndL'(l at common law, whereas it should have concluded, " against the form of the stat- ute." 2. Eccanso the indictment charged that the breaking and en- tering was for the purpose of committing a larceny, wlicreas tho oilense of burglary consists in breaking and entering for the pur- pose of committing felony. The motion in arrest was overruled, and judgment of death pronounced by the court, frona which judgment the prisoner ap- pealed. IF". Z. Jlc'L. McKtti/ and Guthrie, for the prisoner, llar- (/ivvd, Attorney General, for the state. Byxum, J. NoTie of the objections raised by the counsel for the prisoner are available to him. 1. Tho confessions of the prisoner were voluntary* and admis- sible, even without '• the constMit of the counsel; but when tlw counsel withdrew his objections, and allowed the greater part of the conversation between the witness and the prisoner to bo given in evidence, he had no right, by removing the o]>jection, to exclude a part or the whole. /Si(fte v. Davis, G3 N. C, 57S. 2. We know of no rule of evidence which excluded the testi- mony of Worth because he was a grand juror, even if he had acted as such in finding the bill. ]>ut when it appears that ho declined to act or vote on the bill, because he was a witness, there is no ground for objection to his competency. 3. The counsel for the prisoner asked the court to instruct the jury that there was no evidence that the breaking was in the night time. This was properly refused, because there was much evidence given, going to show that the breaking and entering were in the night time. The evidence is set forth in the case, and we think it fully sustains the ruling of the court; and when the court proceeded to charge the jury that they must be satis- fied, beyond a reasonable doubt, that the breaking and entry were in the night time, it was then for them to say from the evidence how the matter was. '•■ s- I. 378 AMERICAN CRIMINAL REPORTS. m 4. The court was asked to instruct the jnry that tlie possession of the watch proved, was not sucli a recent possession as raii^ed the j)resninption of hiw, tlmt the prisoner was the thief. This instruction was given, hut the jury were told that this ])ossession of the stolen article was a fact which they iniiijht consider with the other fact upon the question of his guilt. In this there was no error. 5. The counsel moved in arrest of judgment, hecause the in- dictment concluded at common law, when it should have con- cluded against the statute. This ohjoction is disposed of hy this court in the case of the State V. Jiatti^, 03 X. C, 503. "When the oilense is made of a higher nature by statute than it was at common law, the indict- ment must conclude against the statute; but if the punishment is lessened, it need not so conclude. In our case, the oil'oiise of burglary is the same that it was at common law, and the punish- ment is neither greater or less than it was at common law, l»ut the same. The conclusion of the indictmeiit was therefore pro2)er. The other ol ejections made in the record have no force in them, and were not insisted upon in this court. There is no error. Per Cukiam: JiuJe the note, and on its Iiein<,'h;inded to him, waiiied out of tho room with it, and secreted or destroyed it. In a ))rosecution a, the note not being ]iaid, I took it, lieing a notary, to (lemaiiartlett of the note and to steal it? The request to see the note might liave an honest or a dishonest purpose, and to enable the jury to determine the real purpose and meaning of that request, the subsequent acts, false declara- tions and conduct of the accused, may be received and considered by the jury, although it is obvious that if specific acts of false- hood, artifice or fraud could be shown prior to the delivery of the note by Bartlett to Fenn, the evidence would be more weighty." 8. The defendant further claimed that the court should in- struct the jury that they would not be justified in finding the de- fendant guilty, although at the time he received the note from Uartlott, he intended to convert it to his own nse, unless they should also find that he took it without the consent of I'artlett, or that he obtained liartlett's consent to his taking it l)y false- hood, or by force, or by fraud. Upon this point the court instructed the jury as follows: " In order to find the defendant guilty, the jury must find that at the time he asked liartlett to let him see the note, he had a felonious intent existing in his mind, and if the jury should find that he obtained possession of the note from IJartlett by strata- gem, artifice, or fraud, and that he falsely pretended to him that he wanted to see the note for the mere purjwse of computing the interest, or paying it, when in fact he had no such design, but intended to deceive and did deceive him, and his real intent then formed and existing in his mind, was to get hold of the note and deprive Hartlett or the owner permanently of it, with the intent thereby to secure a pecuniary advantage to himself, then the jury might find him guilty of the**:." The jury returned a verdict of guilty, and found the value of rll . 3S8 AMERICAN CRIMINAL REPORTS. ii t.U i!r mt li the stolen note to bo twenty-three ImndreJ dollars. The defend- ant thereupon moved for a new trliil for errors in the ruluiirs and charge of the court, and upon the ground that the verdict was against the evidence in the case. II. B. Jlunsoii and IF. C. liuhinaon, in support of the mo- tion: Flmt. The verdict was against the evidence. To sustain tl-.e verdict the state must show that the defendant, 1st, did steal, take and carry away, 2d, with felonious intent, -Sd, thii particular note described in the information, 4th, of tlie value of $2,oOO, uth, ol the goods of Henry A. Warner. N^ot one of these propositions was sustained by legal evidence. 1. lie did not steal. The note was voluntarily "jjlaced in his hands." Theft implies a private, secret taking. Webster's Diet., Theft; 2 Swift, Dig., 341; 2 East, P. C. GST; lieyiaa v. Gard- ner, 9 Cox, C. C, 253; Hex v. S aliens, 1 Moo. C. C, 12i); 1 Bish. Crim. Law, 2G0. If we adopt the modern doctrine of constructive theft — "a delivery obtained by fraud", we say that he did not obtain pos- session of the note by force or fraud. The state must prove the fraud; it is not to be presumed. Fenn must have uttered or acted a falsehood to induce the delivery of the note, or else there could be no fraud. lie simply said, " Let me see the notef Suppose he had said, " Let me take the note? " There is neither fraud nor falsehood in these requests. If he had said, give me the note and I will give you my check or the cash, then the de- livery of the note might be said to have been obtained by fraud. There is not a case to be found, from the earliest reports down to the present time, where a conviction has been had, because the possession of an article was obtained by fraud, where the fraud proved was not gross, actual and a2>parent; and to sustain a con- viction on these facts, is to totally obliterate the line of denuu'- kation between malicious trespass and theft. 2. There was no legal evidence of a /elouioiis intent on the part of Fenn when he received the note handed him by Jiartlett. This is essential and must be proved. 2 Swift Dig., 341. A felonious intent in larceny is only evidencertj,'a^'e Hccnrlty, were worth a dnl. hir. This evidence irt inisullieient. 3 (ireeid. Kv., § l.");?. TIhtu is no jireriuinption tliat the note of a private citi/en it* of any par- ticuhir value, or of its face value. There ooukl be n»» ^'ain to tlio taker or loss to the owner in its destruction; it was one uj" siv- eral evidences of debt, any one of which was sulHcient. The Udto had no market value in itself, and its transfer j)assed no ]ini]i. erty; hy takinjjf it the defendant could not steal the titlu any more than he could steal the title to land by stealin«.>; the died. If the note was of some value as a ]>ieee of paper, that value was nominal, not proved and not within the jurisdiction of the court. /Second. The court erred in its rulings and charge: 1. As to the variance. The court erred in admitting the note in evidiMicu against the obj'ection urged by the defendant; and also, in ri'fus- ing to charge the jury that the variance between the note alloged and the note proved was material and fatal. Such variance did exist in this: the allegation is of a note of a given date, i)ayal)lo at a given date, for the sum of ^:i,:JU(>, for value received. Tlio note proved coincides in date and time of payment, but the pruni- ise is greater. The maker agreed to pay, and the ])ayee was en- titled to re<;eive, by the express terms of the note, a much larger 6um than 8'-)'500, vi/.: the interest and the taxes. These two items are integral and nniterial parts of the contract, both as to tliG identity of the note, and as to its value. A conviction for stealing the one described would be no bar to a ])rosecuti()n for Btcaling the ditl'erent one ])roved. In a civil action, the same misdescrii»tion would be fatal, and the rule is the same in this case, but with greater strictness in favor of the accused. Jiit ■ .n [' ft L»i" i 'I" r M J 1^ ji I 392 AJfERICAN CRIMINAL REPORTS. Phelps, J. The defendant moves for a new trial for a verdict against evidence, and for tlie admission by the court of certain testimony offered by tlie state and objected to by him; and also for sundry alleged errors of the court in its instruction to the 1. We are satisfied from the testimony recited in the motion that the verdict is not so manifestly figainst the weight of evi- dence jiroperly admitted in the cause, as to retjuire us, on that ground, to set aside the verdict. Tlie state was l)ound to prove the felonious intent by tlie de- fendant at the time of tlie taking of the property, that it was of some actual and intrinsic valu ;, and was the property of the person named as owner in the information, and that it was ta- Iccu by the defendant either secretly and without the hnowlod"-e of the owner, or openly by deception, artifice, fraud or force, and with the design then entertained to deprive the owner of it and secure to himself some personal benefit from the wrongful taking. We think the evidence detailed in the record justified the jury in finding all these propositions proved. The direct proof of the value and ownership of the note was not in itself necessarily conclusive, but we think it was "^o far corrobonitfd l)y the circumstances, and especially by the conduct of the de- fendant, that we cannot properly say the verdict with respect to those allegations was unwarranted. 2. The note v.-as proved, on the trial, to have been payable Avith semi-annual interest, .and all taxes that should be assessed on the amount of money rc]>resented by it. The description of it in the information omitted these particulars, and the defend- ant objected to tlieevidence (lescrij)tive of the note, on the ground of a material and fatal variance. In a ])rosecution for theft, the property alleged to liave been stolen must be described with substantial accuracy, so tiiat its identity shall be uncjuestionablc and the defendant thereby jiro- tected from another prosecution for the same offense. AVe think that it was reasonablv done, and that the defendant who wronenly, by fraud or force, and in cither mode, with the felonious intent to (lei)rive the owner of his property in it, and convert it to the private advantage of the defendant. On all these points the law was fully, plainly and correctly stated, and the defendant has no just reason for complaint. We advise the superior court that a new trial be not granted. In this opiTiion Fostkk and Pakdek, J J., concurred; CAitrEX- TKu, J., also concurred, but with hesitation. Pakk, C. J., dis- sented. Note. — In Ilihhbmnd t\ People, 50 N. Y., 394, which was a prosecution for larceny, the following is the statement of facts ami the decision of the court by CuuKoii, C. J.: " The prosecutor handed the prisoner, who was bar-tender in 394 AMERICAN CRIMINAL REPORTS. a siUoon, a fifty dollar bill (greenbiick) to take ten cents out of it in paj-nicnt for a glass of soda. The prisoner put down a few coppers on the counter, and when asked for the chaiijre, he took the prosecutor by the neck and shoved hini out doors and kept the money. " The (ju 'stion is presented on behalf of the prisoner whether larceny can ha predicated upon these facts. There was no tiick, device or fraud in uuluuinir the l)rosi'cutor to deliver the bill; but wo nnist assume that the jury found, inul the evid(Mice was suflicient to justify it, that the prisoner intended at the time he took the bill, felouiously to convert it to his own use. " It is urged tliat this is not sufficient to convict, because the prosecutor volun- taiily parted witli the possession not only, but with the property, and did not ex- pect a return of the same property. This presents the point of tiu; case. Whrn the possession and property are delivered voluntarily, without fraud or ariitice to induce it, the (iiiinnis fiirainli will not make it larci;ny, because in such a case there can be no trespass, and there can Ije no lan.-miy witliout trospii.-s (4:{ N. Y., 61). But in tiiis case I do not tlunk the prosecutor should bo deemed to hiivo parted i.'ither with the possession of, or property in, the bill. It was an incom- plete transaction to be consumunited in the i)resence and under the jiersonal cdu- trol of th(! prosecutor. There was no trust or confidence reposed in tin; ijrisdmr, and none inti.'nded to be. The delivery of the bill and the giving change were to be sinmltaneous acts, and until the latter wiis paid, the delivery was not complcti'. The la'osecutor laid his bill upon tht; counter, and impliedly told tiie prisoniT tluit he could have it upon delivering to him $49.90. Until this was done neither pos- session nor property passeuzzlemcut, if at the time he received it he had the intent to deprive the mortgagee of it permanently. The defendant was convicted and the evidence was IwUI sutKcient to support the conviction, and the instructions coiTcct. Hut in Sttitc c. Deal, 04 N. C, 270, where it appeared that the maker of a note, who had complained that he had not Ijeen fairly dealt with in the transaction in which the note was given, went to the holder, and after proposing to iiay it in cotton, which was refused, asked to see it, and upon its being delivered to him by the liolder, kept possession of it, saying, " You won't get it again;" and upon a struggle ensuing, snatched up an axe, retreated to liis horse, and then rode off, adding, " Tom (the holder's son, and as surety to the note) sent me word to get the note as I could," it was liehl there was no larceny. it 396 AMERICAN CRIMINAL REPORTS. ^u The Queen vs. Gtjmble. (2 Cro\vn Cases Reserved, 1.) Larceny: Indictment — Amendment — Money — li and 15 V!c., cU. 100, sees. 1, 18. The prisoner was imlictod for stealiny tlie cliairman of tlic Sun'ei/ Quarter Session. At tlic ifcneral quarter session of the peace, lioldcii by coiitiu- uance at St. ]\rary, ^ „*vington, in and for tlic county of Surrey, on the 3d of July, LSTii, James Gunible was indicted for steal- ing, on the I'Oth of May, 1S72, nineteen shillings and sixpence, from "William Jackson Walton. The ])rosecutor had been playing at throwing sticks at cocoa nuts on Kpsom Downs, and had to pay the prisoner si xpento, but liaving nothing less than a sovereign, he said to the ]>ris(iiier, *' Have you change for a sovereign?'' The prisoner said, " Yes," and in conscfpience of that, prosecutor giive him a sovereign, lie then pulled some money out of his pocket, and said, " I have n't enough, I'll go aiid get it for you; I won't be a minute, just wait here." The prosecutor waited nearly an hour for the prisoner, and then went for a jwliceman, leaving a friend who had Ikcii with him all the time to wait for the prisoner. This he did for (juite another hour after the prosecutor went for a policeman. The prisoner's son removed the sticks and cocoa nuts at the ex- piration of the first hour. The prisoner did not return, and was not apprehended nntil the following Saturday, the 1st of June, on which occasion when he saw the prosecutor's friend, he im- mediately ran away, and was only captured after a chase of sonic distance. On his apprehension, 4?., 10.?., was found on him. It was objected liy the prisoner's counsel that there was no case against the ])risoner, for if he were guilty of any ofl'ense, he was guilty of stealing a sovereign, and that the court had no power to amend the indictment. The court allowed the case to go on, and put it to the jury, THE QUEEN v. GUMBLE, Zd7 tluat if they believed that the prisoner, at the moment of obtain- ing the sovereign, intended by a trick feloniously to deprive the prosecutor of the possession of the sovereign, they were to find him guilty. They found him guilty, and then the question were reserved for the decision of the Court for Crown Cases Keserved, as to whether the prisoner, being found guilty of stealing a sov- ereign, could rightly be convicted under an indictment charging him with stealing nineteen shillings and sixpence, and also, whether the court would have had the power to amend the in- dictme"*" • t an earlier stage of the case. Ko counsel appeared for the prisoners. Jo/in Tliomjyson, for the pi'osecution. If therc be any variance between the indictment and the proof, the indictment might, by 1-t and 15 Vict., ch. 1, sec. 1,'bo amended by inserting the word " money," as the description of the thing stolen. That would make the indictment good within sec. 18, and, upon the case as stated, this amendment must be taken to have been made at the trial before verdict. Kelly, C. B. AVe are all of the opinion that there was power to amend, if any amendment be necessary; and that, on the case as stated, we must take that to have been done, if it be necessary. Maktix, B. I think there was power to amend, and that may be done by altering the description to " money " simply, which makes the conviction ijood. I EuETT, J. The defect, if there be one, is one of description, 'By 14 anil 15 Vict., ch. 100, soc. 1: " Whenever, on the triiil of any indict- ment for any felony or niisUenieanor, there shall appear to be any variance ' j- tween the statement in huch indictment and the evidence offered in proof thereof ... .in the name or description of any matter or thing whatsoever therein named or described,. . . .it shall and may bo lawful for the court before which the trial shall be had. . . .to order such indictment to be amended. ..." 15y sec. 18 : " In every indictment in which it shall bo necessary to make any averment as to any money, or any note of the IJank of England, or of any other bank, it shall be sufficient to describe such money or bank noto simply as money, ^vithout specifying any particular coin or bank note; and such allegation, so far as regards the description of the property, shall be sustained by proof of any amount of coin or of any bank notes, although the particular species of coin of which such amount was composed, or the pivrticular nature of the bank note, shall not be proved...." i 308 AMERICAN CRIMINAL REPORTS. and may be ainciuled by describing the things stolen as " money." And, on the case, we must take this amendment as made before verdict. Grovi: and Quain, JJ., concurred. Conviction affirmed. Attorneys for prosecution, lioger'S db Sons. State vs. Davis. (:38 N. J., 176.) Larceny: Evhlence — Animus furanili. On a prosecution for stoalinj? a horse and cairiago, evidence that respondent, x younjj man, jiassing along the street late at night, seeing the liorse and camaire standing in front of the owTier's house, got in an- nred by such nice probabilities, rather l)y the broader probabili- ty that the owner may lose his property, because the taker has no purpose of ever returning it to him. The cases that are most frequently cited in opposition to this view are, PhlUips t6 Stronrfs Case, 2 East V. C, ch. IH, § 1>S. Here the horses were taken to and in a journey, and left at an inn. The jury found the prisoners guilty, but added they were of opinion that the persons meant merely to ride them to Leeds- dale and leave them there, and that they had no intention to re- turn them or to make any further use of them. The court said that if the jury had found the prisoners guilty generally upon the evidence, the verdict could not have been questioned, but as they found specially from the facts that there was no intention in the prisoners to change the property, or make it their own, but only to use it for a special purpose to save their labor in traveling, it was only a trespass and not a felony. The express STATE r. DAVIS. iibau- lio tak- intent cli ill- •t only 401 intention found was inconsistent with the general finding. Yet the facts were suiTicient to sustain a general verdict of guilty of larceny. The court were divided on the effect of this special finding. In Hex V. Crump, 1 C. & P., C5S (11 E. C. L.), the prisoner took a horse with other property, and after going some distance turned the horse loose, proceeded on foot and attemjited to dis- pose of tlie other property. It was left to the jury to say whether he intended to steal the horse or to use him to carry off the plunder. He was found not guilty of stealing the horse, and guilty of stealing the other property. It was said that he distinctly manifested his purpose of con- verting the other articles to his own use by ollerlng tliem for sale. It is odd that such a nice distinction and division of in- tention should be nuide dependent on the kind of property taken at the same time. Lord Dknman said, in Eegina v. Ilolloioay, that if a man took another's horse without leave, intending to ride it at every fair in England (which would take him a year), and then return the horse at the end of that time, it would not be larceny. This was the statement of an extreme case by way of illustrating a principle, and there was here a purpose to return to the owner. In Jtex V. Othhage, It. & R. C. C, 20i?, the prisoner went to a stable door, forced it ojien, took the horse out, went some dis- tance along the road until he came to a coal pit, and then backed the horse in the pit, where he was found dead. It was held that it was not essential, to constitute the offense of larceny, that the taking sliould be lueri canm', tluit taking fraudulently, with an intent wIkiHv to deprive the owner of the property, was suffi- cient, and the ju'isoner was convicted. These cases will be sufficient to illustrate the principles and distinctions upon which this case will be decided. It is conceded that the law is settled with us according to the rule of the common law, and the approved definition of larceny, given by Mr, East in East's P. C, ch. 10, § 1, where it is said to be " the wrongful or fraudulent taking and carrying away, by any person, of the mere personal goods of another from any place, with a felonious intent to convert them to his (the taker's) own use, and make them his own property, without the consent of the owner." And it has been uniformly held that the feloni- YoL. I.— 26 n 1 403 AMERICAN CRIMINAL REPORTS. ^v. I i'f ous intent must manifest a purpose to deprive the owner wlhjlly of his property. Tlie definition given by EviiE, I'., Pear'^s Case, East's 1*. C, cli. 16, § 12, that larceny is the wrongful taking of goods with in- tent to spoil the owner of them cdimi Iticri, would seem ti> I'o too narrow, because the law considers not oidy and always the effect of gain to the taker, as an essential to the crime, but also the deprivation to the owner of his property. Either will ho BufKcient in the evidence of larceny. 2 Arch. Cr. l*r. »fc PI., 3S9-392. It is interesting, however, to notice the broader definition of theft or larceny in the civil law, and how nearly it accords with the efforts to reach, by criminal punishment, the reckless tempo- rary use and abuse of the property of others, by taking from an owner who does not consent. Jtifears reluctantly, in the case of T/ie /State v. Sont/i, and against which Judge SuAitswooo protests in the note to Queen v. IMhnrdij, 1 Den. C. C, 370, reasoning strongly for n\\ exten- sion of the definition of la: »eny. Doubtless the severe punishment of felony under the old En- glish law has led to this more restricted construction, but the lighter penalties •which now are inflicted would seem to make an extension of the crime of theft or larceny desirable, even to the limits of the civil law definition. There has been no case decided in this state that has held that where the taker had no intention to return the goods the taking was merely temporary. Xor is there anything that should con- trol the action of a jury, or the court acting as such under the ;;tatute. when they find that the party having no such intent is guilty of larceny. It would be most dangerojis doctrine to hold that a mere stranger may thus use and abuse the property of an- REGINA I'. HKNNKSSY. 403 other, ami leave him the bare chance of recovering it by careful pursuit and search, without any criminal responsibility in the taker. The court of quarter sessions are advised that the verdict is right, and should not be disturbed. NoTK. — In McCourt r. People, Gl N. Y., oi^H, tlocidotl in the Now York court of iippoala, April, 1876, the facts were as follows: The respondent, with two othei's, stopped at a house where he had before procured cider and asked the tliiufe'liter of the i)rosecutor to sell him some cider. She refused. The respondent said he would have some anv way, and in defiance of an express prohibition, went into the cellar and drew some cider in a pail, which was taken away from him by one of those who came with him before he left the premises. Kesjjondent was piutially intoxicated at the time. It was luhl that on these facts there was no liU"ceny and the respondent was entitleil to a positive ilii-ection to the jmy t o ac- quit. The court say " There was an absence of the cu-cumstances which ordinar- ily attend the commission of a larceny and which distmj,niisli it fi'om a mere trespass. There was neither fraud, stratagem nor stealth. The value of the cider which he intended to tiike was trivial, and the whole transaction was open, m the day time, and in the presence or ^^-ithin the observation and knowledge of the pros(.'cutor"s daughter. * * * We cannot sustain the conviction, without con- founding the distinction between criminal acts, and such as, however, reprehen- silile, uivolve only a violation of private rights, and uyurics for which there is a remedy only by civil action. "The refusal of the court to direct an acquittal was eiTor, for which the convic- tion should be reversed." Regina vs. IIknnessv. (;!•■) r. C. Q B., G0;5.) LAitcE>;Y IN THE Unitkd Statks: Coiiriction in Canada — 32-33 Vic, ch. HI, sec. 112, D. The prisoner, being the agent of the American Express Company in the state of Illinois, recitived a sum of money which had been collected by them for a customer, and put it into their safe, l)ut made no entry of its receipt in their books, as it was his duty to do. and afterwards absconded with it to this province, where he was avicsted. Ilehl. that he was guilty of larceny, and wius properly convicted here under '\2-'S'-] Vic, ch. 2, sec. 112, D. Criminal Case reserved. The prisoner was tried and con- victed l)efore Eitrton, J., at the last York Assizes, under the statute 32-33 Vic, cii. 21, sec. 112, D., for bringing into Canada or having in his possession therein certain property stolen in the It l\ 404 AMERICAN CHIMINAL RKPORTS. r- 1[, ►^ i> i state uf Illinois, one of the United States of America, in such manner tliat the stealing or obtaining it in a like manner in Canada wonld by the laws of Canada bo a felony or misdu- meanor. The indictment contained tlirec counts, one charging him with liaving stolen the property in a foreign country, and 8\ibse([iieiit- ]y bringing it into Canada, the second with having so stolen it and 8ubtie4uently having it in Canada; and the third for larceny in Canada. The evidence disclosed that the prisoner was on the 3d .July hvst the agent of the American Express Company at AVinona in the state of Illinois, and that on that day, at about 2 1'. ^[., one Charles Ames, a grain buyer there — and having a branch house at Long Point, in the same state, at which j)lace one Taggart wjh his agent, having occasion to remit to his agent, ])ut up .^Too in United States currency or greenbacks in an envelope, and took it to the office of the said express company at Winoiui, and delivered the package to the prisoner, who sealed it up, the money hav- ing been put U]) into theenvelope in his presence, and then sealed wp by him, and he gave a receipt for it and the package so sealed was adressed to the agent Taggart at Long Point, who was at the same time advised by post and telegraph of the money having been sent; aiul this course of dealing had prevailed for soiuu time previously. Ames was advised by his agent that the money had not arrived, and he called at the exju'ess office, but the prisoner had then left, and lie uever saw him afterwards, until he was in custody. The evidence further disclosed, that another parcel had been sent down for ccdlection through tlie American Express Company at Winona, on some one at Layton, and was sent to the United States Express Company at that place, who collected ^5,7:iti, in greenbacks, and remitted to their agent at Winona, who received it, and handed it to Mv. Dennis, a clerk of the ]>risoner, in his presence, in the office of the American Express Company; and the United States Express Company got a receipt in the presence of the prisoner for the collection of $5,720, and the clerk gave the package containing the money to the prisoner, wlio put it into the company's safe. This was about 11 o'clock on the 3d July last. It was the prisoner's duty to make the entry in the receiving REOINA V. HENNKSSY. 109 Ijook of all moneys received in paekagea received for trausniis- slon. The jiacka^e f»»r 8T00 sliotild have been entered, Imt there waa 110 entry of it, and the ^."ijiio whuiihl also have appeared in the luMtk, l»ut was n«»t entered. On the same day the priHoner left Winoi\a on a titock train at 5 1*. Mm 'i"d went thr<»ni;]i to Tonmto, where he arrived on the morning of the ()th, and where he dispoi:lement, and found him guilty of larceny. It was objected that the evidence disclosed, if any oflense, that (»f embezzlement, and not of larceny, in the foreign country, and that the prisoner could not be convicted on this indictment, which chargetl him with bringing into Canada property stolen in such foreign country. The learned judge sentenced the i)risoner to three year's im- prisonment in the provincial iienitentiary, but at the rcfpiest of the prisoner's counsel, reserved the question for the considera- tion of the court of (pieen's bench. If the court shonld be of opinion that the facts ])roved did not amount to larceny, and that the prisoner could not, under the indictment and the evidence, be legally convicted of bringing goods into Canada as stolen, tho prisoner was to be discharged, otherwise the sentence was to be carried out. The case was argued in jSEichaelmas term, 25tli of November, 1S74, Hun'lson, Q. C, for the prisoner. The conviction cannot be supported. The (piestion is, AVHiat was the design in tho original ta cing? y^'A?> i\\cvo 'm\ anltiiusfarand'i? "We say that none has been shown. The disposal of the property in Canada cannot affect the question. No stealing has been proved against the prisoner, but only an embezzlement, and the conviction is, therefore, bad. The prisoner was indicted nnder 32-33 Vic, cii. 2 J, sec. 112, 1)., for larceny of property taken from Michi- gan, in the United States. The People v. WUruinis, 9 Am. K., 119; 24 Mich., 1G6, is dii*ectly in point; and lieyiaa v. Thorpe, 1 Dears. & B., 562, and Eegina v. Eoherts, 3 Cox C. C, 74, may V" ISHI wmii V l>T' I ^!f 1: } ^1 400 AMERICAN ClilMINAL REPORTS. «. J 1 i f ' E 1 ', 1 1 t .*• ■i ;j ■ also be cited to support our contention. See also Conmomvoalth V. Sui)j)&o)i, 9 Mete, 138, 143. /r. Mael'ensie, Q. C, contra: The case of Eegina v. WnijJd, 1 Dears. & B., 431, is exactly this case and supports tlie proriccu- tion. The evidence plainly proves tliat the money found in tlie prisoner's possession was that whicli had been stolen. The fact is admitted by the prisoner. The sole question is, Should tlie conviction bo foi- larcen}- or eml)ezzlement ? We insist on the third count, «'. c, for stealing in Canada, lie referred to licgina V. Watts, 2 Den. C. C, 14; 32-33 A"ic., ch. 21, sec. 4; Ko^ev. Crim. Ev. (8th ed.), 042, and cases there collated. December 22, 1874, IIichakds, C. J. AYe have looked at all the cases referred to by Mr. Harrison in his argument, and to some others, in which very able judgments were given by judges in the state courts of the United States. It appears that in most of the New England states, whicli ■were British colonies before the treaty of 1783, tlie ])ractice which prevailed before the recognition of the independence of the United States, of indicting oilenders who had stolen prop- crty in one province and brought it into another, has been con- tinued since the adoption of the constitution of tlie United States. But some of these states decline to act on the principle that the bringing of stolen projierty from another country by the thief into their state constitutes a new taking, so as to make the larceny an indictable oft'ense there. The general doctrine in our courts is, that in crimiiial matters no man is, in the absence of express law, ])unishable in one country for acts done by him in another, and the cases cital 1)y Mr. Harrison show that this, in England, not only applies to a larceny committed in France, when the thief brought the prop- erty into England, but also to larceny committed in the Island of Jersey, when the stolen property was brought into an Englibh county. We suppose the definition of larceny by Guosk, J., in Ilaiiu moil's Case, 2 Leach, 1089, is sufficiently certain, viz.: "The felonious taking of the property of another without his consent and against his w-ill, with the intent to convert it to the nsu of the taker." REGINA V. HENNESSY, 407 it ' ' lO'iahh The doctrine was established long ago that larceny, like every other oft'ense, must regularly be tried in the same county or jurisdiction in which it was committed; but the offense was con- sidered as committed in every county or jurisdiction into which the thief carried the goods, for the legal possession of them still remained in the true owner, and every moment's continuance of the trespass and felony amounts to a new caption and asporta- tion. To this, however, there were some exceptions. If the original taking be such whereof the common law cannot take cognizance, as if the goods be stolen at sea, the thief cannot be indicted for the larceny in any county into which he may carry them. 3 Inst., 113; 1 Hawk. P. C, 151, sec. 52. A simihir exception prevailed formerly when the original taking was in Scotland or Irelaiul. And it appears to have been liolden that a thief who had stolen goods in Scotland could not be indicted in the county of Cumberland, where he was taken with tlui goods. Jiex v. Anderson, 2 East, P. C, 772. The statute of the Imperial Parliament, 7 and 8 Geo. IV., ch. 20, in etlect removed the exception as to larcenies committed in the United Kingdom. But this did not apply to the case of goods stolen on the island of Jersey, when the thief had them in his possession in the county of Dorset, in which he was indicted and convicted, be- cause the original taking was such whereof the common law could not take notice, and the island of Jersey not being considered a part of the United Kingdom, the case was not within tlie stat- ute, 7 and S Geo. IV., ch. 25), sec. 7C, and so the conviction was held bad. Hex v. Vrowes, 1 Moo. C C. 349. So also as to the island of Guernsey, liegina v. Dehndel et al., 11 Cox C. C, 207. Felonies and misdemeanors committed within the jurisdiction of the admiralty arc to be tried in those courts, under the pro- visions of several different statutes. 7 and 8 Geo. IV., ch. 29, sec. 76, Imp. Par., enacted, " That if any person, having stolen or other- wise feloniously taken any chattel .... or other property whatsoev- er in any one part of the United Kingdom shall afterwards have the same property in his possession in any other part of the United Kingdom, he may bo dealt with, indicted, tried and pun- ished for larceny or theft in that part of the United Kingdom 108 AMERICAN CRIMINAL REPORTS. where he shall so have such property, in the same manner as if he liad actually stolen or taken it in that part." The section goes on to make similar provision as to receivers of stolen goods. The Dominion Statute, 32-33 Yic, ch. 21, sec. 121, makes provisions to the same effect as those contained in the Imperial Stixtute, 24 and 25 id., ch. 0(1, sec. 114-; and as to similar offenses committed in any part of Canada, they may be tried in any oth- er part of the dominion, where the thief has the stolen property in his possession, in the same manner as if the theft had been committed there. Sectioii 112 of the same act provides, "If any person brings into Canada, or lias in his possession therein any property stolen .... in any other country, in such numner that the stealing .... would, by the laws of Canada be a felony, .... then the bringing of such property into Canada .... shall be an offense of the same nature, and punishable in like manner as if the stealing .... had taken place in Canada, and such person may be tried and convicted in any district, county or ])lace in Canada into, or in which ho brings such property, or has it in i)osses- sion." I ajn not aware of any English statute which contains a simi- Lir ])rovision. It is very like the law existing in the state of Michigan, referred to in the case of People v. Wlllia/iit), 24 MicJ,!., 15(1; I) Am. R., 110, cited by Jlr. Ilnrritton. Mr. Harrison, in his argument, seemed to be under the im- pression that the facts j»roven showed a taking by a servant when he was indicted for end)ezzlement, and that the conviction for larceny was bad because the evidence in fact only showed an embezzlement. The facts, however, stated in the case, as submitted to us, seem to liavc been that certain moneys were received by the prisoner, an agent of the American Express Company at Winona, in the state of Illinois; the money having been handed to a clerk of the prisoner's, in his presence, in the ofKce of the express com- pany; a receii)t was given for it, and the clerk gave the package containing the money to the prisoner, who put it into the com- pany's safe about 11 o'clock on 3d of July. The prisoner's duty was to make an entry in the receiving book of all moneys re- 3m •^r^' REGINA V. HENNESSY. 409 ceivecl in packages for transmission, but there was no entry of it in the book. On the same day the prisoner left Winona on a stock train at twenty minutes past five o'clock in the afternoon, ami went through to Toronto, where he arrived on the morning of the Cth, and disposed of American currency to the extent of some $5,000 or $(1,000. The jury were requested to find whether he was guilty of lar- ceny or embezzlement, and they found hijii guilty of larceny, no olijection being made to tlie charge of the learned judge, further than that the evidence disclosed, if any oirense, that of embezzle- inent, and not larceny in the foreign country, and that the pris- oner could not be convicted on that indictment, which charged liiin with bringing into Canada property stolen in such foreign country. The learned judge sentenced the prisoner to three years im- ])riso-unicnt in the provincial penitentiary, but fit the request of tlie prisoner's counsel reserved the question for the consideration of the judges of this court; and if the court should be of opinion that the facts proved do not amount to larceny, and that the prisoi jr could not, under that indictment and the evidence, be legally convicted of bringing goods into Canada, as stolen, the prisoner is to be discharged, otherwise the sentence is to be car- ried out. The case of Iic(jlna v. Wright, 1 D. & B., 431, cited by 2Ir. McKinzle, shows that the facts proven on this trial amount to larceny. There the prisoner was a wine merchant, but he was also the local aarent of a bank, and received £150 a vear as a sal- ary, and was to provide a place for ciirrying on the business. The office was attached to his own house, in which he carried on his own business of a wine merchant. The office was fitted up at the expense of the baidc, and there was in it an iron safe, provided by, and the property of, the bank, into which it was the prisoner's duty to put any money received during the day, and which had not been required for the purposes of the bank. lie sent in statements regularly to the bank, showing money received, on hand and paid out, and specified the notes, cash or securities, and it was his duty to pay over weekly balances he did not want for his purposes. Audits were made fron> time to time, and the amount of cash on hand examined. i V 410 AMERICAN CRIMINAL RErORTS. iili On tlic 20tli of September, 1S55, Ins accounts were inspected, and found correct. From that time to tlic 7tli of Sej)tenil)er, 1857, he made up his statements regularly, and everything ap- peared correct, hut no audit took place until the 12th of of Sep. temher, 18.57, when an appointment was made to examine his cash, when prisoner said he was about £3,000 short, and handed over all he had left, amounting to £775, IOa'. lie made out an account showing a deficiency of £3,021, dft.,dd. AVhile before the nuigistrate he admitted having taken this money. The learned judge advised the jury to find the ])rls(»ncr guilty of larceny if tliey were satisfied that any part of the sum misap- propriated had at any time within the two years been taken front the money sent by the branch bank to the prisoner, or from money which, liavlng been received from customers, had, before such taking, been ])laced in the safe, and included in the weekly accounts furnished by the prisoner. The jury fouiul the prisoner guilty of larceny as a clerk, in having stolen some money received from customers, which, before such stealing, had been ])laced in the safe, and made the subject of a weekly account. They did not find the ])risoncr stole any of the money which had been sent to him from the branch bank. Lord Cami'ukll, in giving judgment, said, at p. -Ill : " "When the money was jdaced in that safe, which was furnished by the employer, and of which the em})loyer had a duplicate key, the exclusive possession of the prisoner was determined. The money being so deposited in the safe, and afterwards taken out of the sf.fe by the prisoner animo fuvimdl, he was guilty of lar- ceny. The safe in this case very much resembles a till in a shop. The shopman has access to the till, and has a right to take money out of it for lawful purposes; but if he takes it out annuo fu- raiull, he is a thief." COLKUIDOK, J., MauTI.V, ]*., CltOWDKU, J>. and AV^ATSOX, Jj., each gave judgments concurring in the same view. It appears to us the ]>rincii)le in that case clearly applies to this. The prisoner was shown, by the evidence, to have been the agent of the express com])any, who were the bailees of the money, aiul he ])ut it into their safe, and there was evidence to go to the jury to show that afterwards, he stole it out of the safe, and brought it to this city. spected, teniber, lug ap- of 8op. lino Ill's handed out an before .X, J}., REGINA V. HENNESSY. 411 lie therefore brought into Canada property stolen in another country, in such a manner that the stealing would, by the laws of Canada, bo a felony, and the statute declares that to be an of- fense of the same nature as if the stealing had taken place in Canada. The iirst count of the indictment charges him with having stolen the property in a foreign country, and with subsequently bringing it into Canada, and the jury have found him guilty of this ottense. As we understand the objection which is urged by the pris- oner, it is simply that the facts show embezzlement, and not lar- ceny. The case cited shows it is larceny, and that seems to us to bo the end of it. It is not Mi'ged, in terms, at all events, that affirmative evi- dence must be given to show that stealing by a clerk or agent from his employer of nxoney which has come into the possession of the latter, is, by the laws of the state of Illinois, larceny. "W'^o do not feel inclined to suggest such a point for the bene- fit of any person who may be shown to have done this thing, whatever wc may call it. "We shoidd say, if it were shown that in the city of Chicago, while a man was riding in a street railway car, one of the pas- sengers sitting beside him adroitly took his watch out of his pocket, and left the car, taking passage on the next train for To- ronto, and on reaching this city, sold the watch here, that he had brought stolen property into Canada, without showing affirm- atively there was any law in Illinois saying that such an act was larcenv. If a servant were to take his master's money out of a till in his shop ill Chicago ammo fanimll, and brought it here, we should say that in bringing that money he was bringing stolen money into Canada; and the same principle, we think, extends to the prisoner in this case. In discussing the question of the examination of a witness in a foreign country, under a commission, as in Lxunlcy v. Gill, 3 E. & I>., 114, Lord Cami'bkll said, at p. 124: "The statute will reach a British subject committing perjury in a foreign country. "We certainly do legislate so as to make some acts done in foreign countries penal here, as in the case of murder and 412 AMERICAN CRIMINAL REPORTS. slave trading. But then our legislation applies only to British subjects." Sir A. CocKUURX, then attorney general, in argument sairotect, to steal must be an offense of a very grave character. IIow they may punish it we may not precisely know. But I think the good sense of the rule, as now maintained, is, that the charging a man with conrnitting abroad such a crime as would subject him to the punishment of felony here, by tlie common law, fixes with ecpial certainty the character of the im- putation, and places the man in fully as degraded a position in society." Our parliament has not declared that larceny in the state of Illinois is a crime here, but that the bringing of the property stolen in another country into this country, when that })roperty ■was stolen in such a manner as would have made it a felony here, is an ofi'ense of the same nature as if such stealing ha make any charge based on that hypothesis. The defend. nt, is resj)unsil)le alone for such taking and carrying away as wei-e done by him- self. According to thu evidence, the acts of the counterfeit accomplice proceeded from the joint will of himself and the ^^ IBt'T ajj^eiit. WILLIAMS V. STATE. 415 accused. lie, witli the owner, was running on the line of detec- tion and arrest. Tlie accused had a supposed ally, but not a real one; he was running by liiniself, on the line of guilt and impu- nity. His pretended accomplice, being a person of sound mem- ory and discretion, could do no act which would render the defendant guilty, for the former was making no effort to become guilty himself. lie was, in fact, only a detective, not a thief. •i. The second proposition of the charge is equally erroneous when applied to the facts of this case. The evidence is clear and uncontradicted, that the cotton M'as delivered by the owner's agent. As testified by the latter, the owner said during the day, "Let him have it, and I will be there at the getting." As tes- tified by the owner himself, he said, at night, "Go and tell him to come and get the cotton." Kithor of these expressions might, without much strain, be construed into a direction on the part of the owner to deliver the cotton, and it was in fact delivered. There was no trespass committed in the taking. There was no taking without the owner's consent. True, the consent was given for a purpose quite aside from any design to part with the prop- erty, but, if given at all, and the intended larceny was cut off as soon as the owner could, after delivery, cry halt, and fire off the guns, what taking was there which could, with any truth, be said to be without his consent? If the property was delivered by the owner's direction, and with his consent, it can make no differ- ence, legally, although it does morally, that the accused did not know of such direction and consent. Suppose tue owner, instead of acting by his agent, liad acted in person, and delivered the cotton from his own hands, the defendant not knowing him to be the owner, but believing him to be another thief and a con- federate with himself in the supposed larceny, would not an essential element of legal larceny be wanting? 5. I'ut were it even granted that the agent made delivery on his own motion, without the owner's consent, there was too much active participati«»n by these two persons in this transac- tion for it to amount to larceny on the part of the accused. It seems to be settled law that traps may be set to catch the guilty, and the business of trapping has, with the sanction of courts, been carried pretty far. Opportunity to commit crime may, by design, be rendered the most complete, and if the accused em- brace it he will still be criminal. Property may be left exposed m n ,''< f 41G AMERICAN CRIMINAL RETORTS. \ ?'">,! h' It i; jji ,| I i ' I Tfr' for the express purpose that a suspected thief may commit him- Belf l>y stealiuiy it. The owner is not bojiud to take any nieas- wres for sccurit}'. lie may repose upon tlie law alone, and the law will not inquire into his motive for trusting it. ]>ut can the owner directly, through his agent, solicit the suspected party to come forward and commit the crimiiuil act, and then coinpliiiu of it as a crime, especially where the agent, to whom he has en- trusted the conduct of the transaction, puts his own liand into the corpus delicti, and assists the accused to perform one or more of the acts necessary to constitute the olFense? Should Uiit the owner and his agent, after malcing everything ready and easy, wait passively and let the W(»uld-l)e criminal j)erpetrate the offense for himself in each and every essential part of it? It ■would seem to us that this is the safer law, as well as the sounder morality, and we think if accords with the authorities; 2 Leach, 913; 2 East P. C, ch. 10, sec. 101, p. 00(5; 1 Car. & Mar., 218; Meigs, SO; 11 Humph., 320; 2 Ikily, 5G9. It is difficult to see how a man may solicit another to commit a crime upon his property, and when the act to which he was invited has been done, be heard to say that he did not consent to it. In tlw present case, but for the owner's incitetncnt, through his agent, the accused may have repented of the con- templated wickedness before it had develoj)ed into act. It nisiy have stopped at sin, without putting on the body of crime. To stimulate unlawful intentions, with the motive of bringing theiu to punishable maturity, is a dangerous practice. Much better is it to wait and see if they will not expire. Humanity is weak; even strong men are sometimes unprepared to cope with tempta- tion and resist encouragement to evil. Let the judgment be reversed. Commonwealth vs. Titus. (UG Mass., 42.) Larceny : By finder of lost goods. If the finder of lost goods, at the time of taking them into his possession, knows, or has the reasonable means of knowing or ascertaining, wlio tJio owner is, but intends at the time to appropiiate thom to his own use, and deprive the owner of them, he may be found guilty of larceny. Ti iHf COMMONWEALTH i-. TITUS. 417 ■ ) ;» If the fimlcr of lost gooilH has no felonious iiik'iit at the time of talcing tiieiu into his possi'ssion, a subsequent conversion of tiieni to his own use \vill not constitute larceny. Tjiis was an indictment for larceny. It appeared by the bill of exceptions that the prosecutor lost the goods while passint^ }ilonnt if, at the time of first taking them into his pos- session, he has a felonious intent to appropriate them to his own use, and to deprive the owner of them, and then knows or has the reasonable means of knowing or ascertaining, by marks on the goods or otherwise, who the owner is, he may be found guilty of larceny. It was argued for the defendant that it would not be sufficient that he might reasonably have ascertained who the owner was; that he must at least have known at the time of taking the goods tliat he had reasonalde means of ascertaining that fact. But the instruction given did not require the jury to be satisfied merely that the defendant might reasonably have ascertained it, but that at the time of the original taking he either knew, or had reason- able means of knowing ov ascertaining who the o^\^ler was. Such a finding would clearly imply that he had suclx means within his own knowledge, as well as within his own possession or reach at that time. It was further argued that evidence of acts of the defendant, subsequent to the original finding and taking, was wrongly ad- mitted, because such acts might have been the result of a pur- VoL. I. — 27 418 a:mf;uioan criminal reports. »'( rHt ' { ( ^ ' pose sul)spqncntl_y fonnctl. T»ut the evidence of the ati1)«(>(|iiont actri ii»!(l i'i"ty of tim prosecutor, if at the time of removiiifjf the money, he did it with the inti'iit to convert it to his own use, it was larceny." < »f this instruction the sniirenie cdnit say: "It is on the latt<'r jianiKTaiih of this instruction that the doubt of tin- couit arises. Of tlie correctness of the lirst jiaii of tln' instruction, lyi (luestioii exists in tli(! mind of the court. .•\nd if the same verdict Inid been found on tiiat alone, till' coiu't mi^dit havi' been entirely satisfied with it. On the other bnineh of tlie instruction, the court is divided; on that point no opuiion is expressed. Xut as it is possible tho verdict may have been inflnencod, in Komo doHree, by that instruc- tion, the court is unwilliii},' that the defendant should sntf'er on a verdict, when the law is at all doubtful. ,\ new trial is therefore ordered without prejudici'," Sfdh' r. Fn-f/iimi, 2 McMuU. (S, C), .'J02. "Toroiistitute larceny in the finder of j^oods actually lost, it is not enou;,'li that the party has f,''enera] means by the use of jiroper dilijs'ence, of discoverini; tiu; tnio ownier. lie must know the owner at the time of the findinfj, or the gooiLs must have some mark about them undi'rstood by him or'presiimably known by Jiim, by which the ownier can be ascertained. And he must aiiprojiriate them a.fc the time of fiiidiiifr ^\^th intent to take entire dominion over thi'in." Hunt r, Ciiwininurfulth, V.\ (irat. (Va.), TH. In Stati- v. I'rntt, 20 la., 2fW, the evidence tended to show that the stolen money belonfjed to one Dunn; that Dunn had it in his pocket-book in a side pocket, and that it wa.s either tidieii therefrom, or dropped out and was jiicked up, by the defendant. On these facts it was lirhl: " that if tho defendant picked it up, and v,'ith an unlawful intent converted it to ^ C0:\IM0N\VEALT1I v. TITUS. 4ia hw owi nm', willidiit tin' kiiowli'd^o of tlic own t, it would lie m much liirccny or (I I'fjdiiiiMis tii.kiii^', iw tlu)iiH:li lie ii.iil taken it troni the jioekct." ,\uil so in .s7(»/(^ ('. (!ii,iiniiif/n, 'A'-l (Jonn., 2')0, wlicri' a HcrviMit picked up a itjiii^ in till- iioUMc of her ini:<)reKS, knowing it to linve lieen iiccidentally drop|)ed l>y tlio latter, and to iiejonj^ to )ier, aixl wlien questioned a few uiiniiteH aftenviirds, do- llied liavinjf taken it, and liannjjf coiiceak'd it, within a few weeks eamcd it to a distant city and otlercd it for sale; it wiw Jufil that the d(.'fenen lost from a stiiire coiidi in the hi^'liway; and it was held that no sultserpient act, in concealing' oi ippropnatin^' tin' tnnik to \m own use, would make itaca*t(' of liuwiiy. 'Jlie decision piwecded on tli" (,Tound tliiittlie im)perty wiis losthy the owner, so that it no lon^'erreniiiined either iictn- ally or constnictively in his possession, anil tliat it aftenvards came lawfully into the hands of the defendant by finduii^'. Wiieii property (r. ;/., a pocket hook coutiiiniii^r li;nik hills), with no ni:irk ahout it indicating,' tho o\nier^ was lost, and found in the hi^fhwny, and there wiis no evidence to show that tho finder, at th(' time, knew who the owner wn.s; hchl, that he could not be convicted of larceny, thou;.'h he friuidulently, ami with intent to convert the property to his o\sni nse, concealed the same inunediately afterward. To render tho tinder of lost pniperty liablu aw for a larceny, ho must know who the o\mcr is, at the time he ac(iiures iiossession, or have the means of iden'ifjTnt'' him iiisfdiitfi; \>y marks then about tho property which the finder undi'istand:*. It is not cnoui^h that ho has p'neral iiift. It is said in Hdiiiluu ". Stair, I S. \- M.. M'-), that "it is a .-ettleil principlo of law that if one loses floods and ajiother tind them and convert them to his own use, not knowing,' the owner, this is no larceny, Ihit if thelattor Imew the own- er, or luid tho na'ans of knowiu); liim, it would bo larceny." But in this case this lajij,niai.;e wa.s a more dktiiw, for the conviction was reversed on the yround tliat there was no evidence af,'a,ijist tho defendant. In I'diiKdin r. Sidle, 22 Cnmi.. lolt, tho court- seems to have fjono the whole lenixth of deeiduiK that if the tinder of lost floods, at tho time of tho finding, in- tends to convert them to his own use, and actually does so, ho is ynihy of larce- ny, without ro),'ard to theiiuostion whether at tho time of finding ho know or had the means of discovomifj: the owner. Such knowledjjo, on his piu't, soi'ms to be ro- giu'dod as a mere circumstiuno beariny on the question of the oriH:inal felonious intent. Hut ui Wnijlit v. State, '> Yer;,'., I.'i4, it was Jielil that there could be no larci'uy of lost go^ds under any circumstances, lliat to constitute a larceny, thoro must be a ti'ospass ui tho taking. 'J'liat ciuinot b(.' if tho goods wore lost, because they would not be in the owner's jKissession, and no trosjiass could be committed hi taking tJiem. This case follows tho case of I'urtcr v. State, 1 Mart. A: Yerg., 220. In Sidle e. Cmiiraif, \>^ Mo., :V21. the evidence showed that tne dofendinits found a safe in tJie Mississippi river, anil Ciirried it openly in day light on a dray, to a liouse in St. Louis, where one of th(>m lived; there they forced the safe open and took out the money, and were djviihng it when one of tho owners, who Imd traced them, came in iuid told them not to intort'ere with it. for it belonged to tho owners of the steamer Glencoe. The defendants said they had found it, and claimed they ^IM' 420 AMERICAN CKIMIXAL REPORTS. ,«' k it; were entitled to it. The owner went after the police, and on his return found that tlie men had fled with the money. They were followed and caught in a com field ui which they had concealed themselves, with the money on their persons. It was held that on these facts, tiie defendants were entitled to a positive chiir!,'e that tiiey were not guilty of larceny. See A^o State v. Jenhiiis, 2 'I'jl. (Vt.), ;]77. Larceny cannot be committed of goods and chattels found in the higlnvuy, wheiv tiiere are no marks by which the owner can be ascertiiined. One inirrcdi- ent of liu-ceny is wanting in sucli case, to wit: A felonious taking. Ti/hr v. l\o- pie, Ureese (1 111.), 227. Hie foregoLiig are all of the Ameiican cases of any imiwrtance wliich don' witli the question of what constitutes larceny in the finder of lost goods. On tJiese ca.>L'.s we think the weight of American authority is that there can be no hu-ceny unless at the tune of finduig the goods, the flnder knows, or fi-om marks on the goods, ov the surrouniling circumstances, can then ascertain the owner i' I Martinez vs. State. (41 Tex., 12G.) L.uiCEXY : ProjH'tii/ outslile of store. Stealing property hanging at and outside of a store door is but simple liU'coiiy, and is not hu-ceny from a house. ItiiKVKS, A. J. The only question in tins case is presented iu the brief for the stivte: " Is an imlictnient for theft frtiiii a house, sustained by prouf that tlie stolen property Avas tal:eii ■while hanging at and outside of the store door on a piece of wood nailed to the door, facing and projecting towards the street?" Ihirglary at common law is an ofl'ense against the security of the habitation, the protection of the property being an incident, not the leading object. The precinct of the dwelling, the place whore the occupier and his family resided, included only such buildings as were used with and appurtenant to it, and these only, were the subjects of l)urglary at common law, and to constitute this offense there must have been an actual or constructive breaking and cntrv in- to the house. The English definition of burglary has been modified by stat- ute in this and in other states so as to include offenses commit- ted in the daytime as well as in the niglit, under certain circum- stances, and in other buildings than the dwelling house. The I .^M MARTINEZ c. STATE. 421 idea of regarding the house as a place of security for the occu- pants, and a pluce of do])osit for liis goods, underlies all these statutes. l?y our code, burglary is constituted by entering a house by force, tli;-eats, or fraud at night, or in like manner, by entering a house during the day and remaining concealed there- in until night, with the intent in either case of conuuitting a felony. (Pas. l>ig., art. 2'^o'.K) It is not necessary that there should be any actual breaking, except when the entry is made in daytime. (Arts., 2300, 2;301.) The code provides dili'erent degrees of punishment for theft without regard to place. The article under which the defendant WHS indicted is as follows: " If any person shall steal property from a house in such a nnuiner as that the offense does not come within the deiinltioii of burglary, ho shall be punished by coniinenient in the penitentiary not less than two nor more than ^evon years." (Art. 2-IOS.) AVhero the house entered is a dwelling house, the punishment of burglary is imprison- ment in the penitentiary not lees than three nor uiore than ten years. Where the house entered is not a dwelling house, the ])unishment is not less than two nor more than five years. In these cases the punishment is greater than that for theft in gen- eral, as defined by the code, where the jiroperty is under the value of twenty dollars. "We are of oi)lnion that the goods were not under the protec- tion of the house, so as to uuxke the taking theft from a house in the meaning of the statute, and that the defendant was only lia- ble to the ])unishment prescribed for simple theft. The goods were not deposited in the hoTise for safe custody, but the witness says they wei'e hanging out to attract customers or purchasers. The statutes of the states cited in the brief of counsel, in gen- eral, punish theft in a house, while other statutes referred to pun- ish theft from a house as does our code, and they seem to use these terms as meaning the same thing. A different rule would not admit of any definite application. A construction that would make the stealing of goods while cxi)osed on the street, and not in the house, the same oflense as btealinir from the house, would be to lose sight of the distinction between ditlereni offenses and the different grades of punish- ment, and would introduce a latitude of construction too 422 AMERICAN CRIMINAL REPORTS. 1 llj uncertain to be followed in the administration of the criminal laws. The judgment is reversed and case remanded. lievened and remaiuled. MiDDLETON VS. StATK. (53 Ga., 248.) Lakceky fhom Housk. Where u biJe of cotton was stolen from an ulley way outwide of a warehouse imd not in a warehouse, it wiis hdd tJiat the defemliuit w;i8 griiilty only of oiniple hu'e/Jiiy. A charjie tliat " if the hale of cotton was in front of the warehout-i\ mid iiu1>t its control and protection, steaJiny it is tlie Hiuue ott'ense as if the ball' of cut- ton wei-o actually within the walls of the warehouse," i.s en-or. AVaunkij, C. J. The defendant was indicted for the offense of "larceny from tlie house,'' and on the trial thereof tlie jury, under the char^^eof the court, found the defendant guilty. A luotinu was made for a new trial, on the ground ut error in the cliari^'o of the court tu the jury, and because the verdict was contrary to law and the evidence, which motion was overruled and the de- fendant excepted. The defendant is charged in the indictment with having taken and carried away from the warehouse of the prosecutor one bale of cotton, the said warehouse being a ])la('e where valuable goods were stored, witli intent to steal the same. The evidence in the record shows that the bale of cotton was not ill the warehouse, but o^ihlde of it, in an alley way. The court charged the jury '"that if they found from the evidence that the bale of cotton was in front of the warehouse and under its con- trol and protection, it would be the samecrimiiudly as if within its walls, and would be a taking from, ujton the same basis as if a storekeeper places goods in front of his store, and a thief take them therefrom, it would be hirceny from the house." The 4-il3th section of the Code defines larceny from the house to be the breaking or entering said house, stealing thertfroin any money, goods, clothes, wares, merchandise, or anything or things of value whatever. The 4414:th section defines the penalty for Btealing in any of the liouses described in that section. Simitle theft or larceny is the wrongful and fraudulent taking and car- dcil. TRICE V. STATE. 423 rying away by any person, of the personal goods of another, with intent to steal the same. Code, 4393. The distinction between simple larceny and larceny from the house will be readily per- ceived. The evidence in tlie record before us does not show that the defendant was guilty of the offense of larceny from the house, inasmuch as it does not show that the cotton alleged to have been stolen was ui any house, or that it was taken by the defendant thei'tfrom. The charge of the court, in view of the evidence con- tained in the record, was error. Let the judgment of the court below be reversed. Pkick vs. State. (41 Tex., 215.) Lakcenv: Pracike. Throwing jroods off a railway train in motion, \^■itll a felonious intent to appro- priate them, is larceny. The comt will not consider on appeal iui objection not raised on the trial that tlie niune of a corporation was not proven accortliny to tlie fact. Ivohkuts, C. J. The defendant is charged witli the tlieft of a bale of cotton from a train of the lEouston 6c Texas Central llailroad C<)m])any, being the pro])erty of said company. It was pnn-ed that defendant, being on the train at night, threw off a bale of cotton privately, he having got on the train to ride a small distance, and upon finding tliat the brakeman, who saw him do it, was going to report him to tlie conductor, ho jumped from the train to escape arrest, and could not afterwards be found on the train. It is objected in defense, that the act of throwing off the bale of cotton under the circumstances was not such a taking into possession of the bale of cotton as amounted to a complete act of theft. The cotton was removed from the position on the train wliere it was placed by the owners, and removed from their pos- session by being thrown oil' of the train by him. The fact and circumstances connected with the act justified tlie jury in con- cluding that it was done to convert the cotton to his own use. It is objected also that the proper name of the company is the Houston ct Te.xas Central llailway Company, and not the AMERICAN CRIMINAL REPORTS. mm iii M Houston *fe Texas Central "Railroad Company, as it was alleged and proved on the trial. To this it may be answered that it was a matter of fact not raised on the trial, and only to be ascertaiued by reference to the private act of the legislature constituting tl>c charter of the company. It was not necessary to set out the cliarter in the indictment, or to allege it to be a chartered com- pany otlierwise than by name, as was done in tl»is csise. Arcli. PI, ik. l*r., note, 271; Peoj}Ie v. Carllnfj, 1 Johns., 320. The ]">roof corresponds with the indictment as to tlie name of the com])aiiy, and there was no (question made in relation to it on the trial in any way. Tlie proof of allhi, attempted as a defense, being wliolly de- pendent on the ])articular date, which was not Hxcd with cer- tainty, is not of a character to reverse the finding of the jury. Finding no material error in the charge of tlie court, and there being evidence sufficient to sustain the verdict, the judgment will be aflirmed. Jxi(lroved a technieal " larceny from the person."' The jury, under the charge of the court, found the defendant guilty. A motion was made for a new trial, on the ground that the court erred in charging the jury that they could find the defend- ant guilty of simple larceny, as defineth section of the oode, notwithstanding the evidence showed that it was a technical larceny from the j)ei\^i)ii. The court overruled the motion, and the defendant excepted. KING V. STATE. 427 By the -tiOGth section of the code, it is declared that if any person shall take and carry away any bond, note, bank bill or due bill, or paper or papers, securin<^ the jiayinentof money, etc., Avith intent to steal the same, snch person shall be guilty of siin})le larcen}'. ]iy the illOth section, theft or larceny from the i)erson is defined to be the wrongful and fraudulent taking of money, goods, chattels or eflects, or any article of value from the person of another privately, without his knowledge, in any place whatever, with intent to steal the same. " Sim])le larceny," and " larceny from the person " are two distinct oflenses under the code. It is true, that if any jierson shall take and carry away any bond, note, bank bill, etc., with intent to steal the same, such person is guilty of simple larceny; and it is also true, that if any person shall wrongfully and fi-audulently take and carry away the personal goods of another, other than Iwnds, notes, bank bills, etc., with intent to steal the same, he would be guilty of simple larceny, but it does not fol- \{)\\ that if bonds, notes, bank bills, etc., are taken from the jwraon- of another jirivately and without his knowledge, that the party defendant so taking the same maybe indicted and punished for the oflense of simple larceny. If one should take and carry away a box of jewelry, with intent to steal the same, he would l)e guilty of simple larceny, but if one should take a box of jewelry from the j}t'i\^o)i of another, privately, without his knowl- edge, with intent to steal the same, he would be guilty of lar- ceny from the person. So in this case, if the defendant had not taken the currency bills from the j^at'soii of another privately, and without his knowledge, he might have been indicted and jtunished for the offense of simple larceny, but as the evidence shows that he was guilty of larceny from the 2>crson, he should have been indicted and punished for that offense. Simple larceny and larceny from the person, as Ixjfore re- marked, are two distinct offenses, and the pnnishment is differ- ent. Simple larceny of curreiicy notes, under the ilOOth section of the code, is punished as a felony by imprisonment in the penitentiary for not less than one year nor longer than four years, whereas, strange as it may appear, larceny from the j)erson oi currency notes is only punishable as a misdemeanor under the provisions of the act of ISCG, reducing certain crimes below felonies. The lesidt, therefore, is, in relation to the case now ■■tl 428 AMERICAN CRIMINAL REPORTS. 1 1 ' k before US, that the dcfemlant has been indicted and found guilty of a felony, for which ho may be punished by inii)risounient in the penitentiary for not less than one year nor loni,'er than fuur years, when if ho had been indicted for larceny from t/ic jt, rsnn, the (.iTense of which it is admitted the evidence proved him to have been guilty, he could only have been punished, as the luw now stands, as for a misdemeanor. It might be ix. coio'oiii nc icay to indict the defendant for simple larceny and ])uiiish him as for ix felony under the 440Gth section of the code, when the evidence ])roved he was guilty of larceny from the person, and oould oidy be juinished therefor as for a misdemeanor. The simple objection to this course of proceeding is, that the penal laws of the state do not authorize it. There are four distinct classes of larceny recognized by the penal code of this state: 1st. Simple larceny; 2d. Larceny from the person; 3d. L:i,rceny from the house; 4th. Larceny after a trust or confidence has been delegated or rei)0sed. Code, § 431>2. If any person shall steal currency notes, or other c/ionrfi iu action, or any article of value from the person of another, privately, without his knowledge, in any ])lace whtitever, such person is guilty of the offense of larceny from t/ie j>e /'.son, ami should be indicted therefor and ])uiiished as prescribed hy law for t/uit ojft'nsc. If any person shall steal and carry away any currency notes, or other valuable thing as descril>ec^'>^on of another, such ])erson is guilty of simple larceny, and should be indicted therefor, ami punished as prescribed by law for that ofl'ense. Penal laws are to be construed atrlrtlij, therefore the defendant in this case could not legally have been convicted and punished for the of- fense of simple larceny, under the 4400111 section of the code, which is a felony, when the evidence clearly ])roved that he was only guilty of the offense of larceny from the person, which is not a felonv, but a misdemeanor. The offense of a misdemeanor under the law cannot be converted into ^felony 'a,\\^ punished as such, in that vxiy, without a violation of the fundamental prin- ciples of the penal laws of the state. In our judgment the court erred in overruling the defendant's motion for a new trial. Let the judgment of the court below be reversed. ^^3 STATE V. GRAVES. 429 State vs. Gkavks. (72 N. C, 482.) BuiiGLAnY AND Laiiceny: Effect of 2)OK8cii!i'\on of stohi\ propctii/. On a trial for burglary and laacny, whore evidence was tfivon that the respond- ent was found in iJOssoHsion of the watch and cliain stolen, witliin forty houi-s after the burghuy, it is ciTor to charge tliat if the jury believes this fact, the law presumes that ho is the thief and tluit ho has stolen tlio watch and chain, and he is bound to explain !sati!jfiU.toiiIy how he came Ijy the goods. Tlio rule in North Carolina as to the effect of the possession of stolen property is tills ; " When goods are stolen, one found in posscMjiou so soon thereaf- t' Of • rt h i to Grociisl)on> tlio next day, and did leave the house at wliich he was 8to])jMng the next day. There was no evidence that he was in Greensboro on tlie niglit in whicli tlie alleged burglary was committed. The ])ri.soner was arrested about the 4th of September, in Koekingham. and brought to (Greensboro jail. When arrested, tlie j>risoner denied the charge. AVhen in prison, the prisoner told Scales that he got the watcli and chain from John and Dennis Sellars on Sunday niglit, tlio Jith of AugU!?t, and that they told him to take them to Dauvillo and trade them off'. The prisoner at first told Scales that lie did not IsTiow the watch, Init in a few minutes afterwards, adiiiitteil that he did know the watch as soon as he saw it; that he litiil seen Scales wear it a hundred times. It was proven that the jirisoner, preceding and up to July, had been a servant of Scales, and often in his house and the rooms therei>f. That on the first or second day after the watch was st(dcn, Scales had Jennie Stevens, his servant, and one Jim Edwell, arrested on the charge of committing the crime. Tliiit on the night of the alleged burglary, Jim Kdwell was seen about dark dodging behind a tree at the corner of the house, near the window alleger, in iinvwtt'd, tlie Wfitdi li.^c'it, tlio iMitvillu !it Iio dill iuliiiittt'd t ho IukI to July, and the he watch one ,Iiiu le. That Jen ahuiit 1 near tlio 'ii!^ lialtt'd it p:ate of iinls, this ! and saw ni a half 111 which iiall Idiu- ced with Mwcll in L colored le watch ither, he n a few and 8ai(l WiiA alsi) oncealed if they STATE r. GRAVES. 481 believed from the evidence tliat the prisoner waa in possession of tlie watcli and cliain in Dainille, Virf^lnia, on tlie ^[onchiy af- ter the watch was stolen on Satnrday nij^ht, the law presumed that he was the thief, and that he was hound to explain satisfac- torily how he came hy it. The prisoner excei)ted. The prisoner's counsel asked his lionor to charge " that if there was any reasonahle hypothesis arising out of or suggested hy the evidence hy which, taking all the facts proven to he true and lie not guilty, that the jury should acquit the prisoner." Ilis honor charged the jury that in giving to the prisoner the benefit of the reasonable doubt, tl.'ey should not be controlled b}' mere conjecture that some (me else did the deed; that they must be fully satlsfioso(>u nnliHH he lind stolen them himself, the law presumes ho WU8 the thief." Tliis is siiiijtly a deduction of comnion sense, and when the fiict is so pl.'iin that there can he no mistake iihout it, our eourl;!, followiiii^ the practice in Eiii,'huul, where the j»nl;,'e is allowed to express his o])inion as to the weij^ht of the evidence, have adojtted it as a rule (»f law, Mhich the jud^e is at liherty to act on, not- withstanding the statute, which forbids a jud^'e from intiniat- tin<^ an (»j)inion as to the weif]au\ from certain fiduciary re- lations (see Peni'ci', v. Lck, (iS N. C, }>(>), has been reduced to very luirrow proportions, and is never aj)plicable when it is necessary to resort to other evidence to support the conclu^ioll; in other words, the fact of ^uilt must be self-emlent from the ljaref(Ui of being found in the possession of the stolen goods, in order to justify the judge in laying it down, as a presuuij)tioii made by the law, otherwise it is a case dei)endiiig on circumstan- tial evidence, to be passed on by the jury. In our case, so far from the fact of guilt, to wit: that the pris. oner broke and entered the house and stole the watch and chain, being self-evident, it is a matter which, nnder the oircum- stances proved, admits of grave doubt, T r it may well 1 tlial prisoner merely received the watch and chain "rne one else had committed the burglary, which wouh .,'e the gradf of the crime very materially. As the case got ick for another trial, it is a nu'^ter for the solicitor of the state to consider whether it will iio'. be well to send a new bill containing other counts to meet the different aspects of the case, as it may bo looked upon by the jury. Error. PebCukiam: Venire de novo. State vs. "Walker. (41 Iowa, 217.) BmcLAUT AXD Larceny: Effect of recent possesswn. A chaxgo which instructs Uie jury that proof of poascssion of piirt of the stolon goods, four months after tlic commission of tlie crime, no rotiBonable explau- STATE V. WALKKR. 433 alion Wma yiveii of the poHscK.^ioii, shoulil bo rofjariled as raising a strong l)n'siiiiiiition of guilt, is t'rroncou.i. llic rule in, tluit trmif pOHNCMsionof ntolcn property, uniiccoimtoil for, isa Htroni; pri'Hiiniption ov prima fttcii; cVuWm'i^ of guilt. W'liiit id rcwnt posfluKsion in a (picdtion of fact, to be snliniittcil to the juiy, ex(>'i>t in tliosu cmi'h wlioro tlio court, in favor of the prisoner, can say, aa a matter of law, that posHcsslon in not recent. •It! ffl ! ' 1 I' I ]^[I^^KU, C. J. The court, ainonj^ other instructions to the jury, cliar^cd 118 follows: " If you find that the store of the witnesses, S. E. ik John Johnson, was hur^'lariously entered, about the niiiniionvu:alth v. Jlillard, 1 Mass., 0; 3 Greenl. Ev., j'^31, 32 and 3:',. What is to be termed recent possession depends very much upon the character of the goods stolen. If they are such as pass readily from hand to hand, the possession, in order to raise a l^'esuniption of guilt, should be much more recent than if they were of a class of property that circulated more slowly, or is rarcly transmitted. There may be cases where the possession is so long after the commission of the crime that a court will refuse to submit the (piestion to the jury — deciding, as a matter of law, that the poss I Yates vs. State. (M Tex., 202.) Larceny: EJfed of recent possess^.on. FosJ'Ossion of a stolen feather V)eil and .some l)C(l clothings, five months after tliey \vero stolen, is not such recent possession a.s of itself to raisi' a legal jue- HUiiiption that tlie party in po.siiession is the thief. It is men'ly a circum- stance to be subinitteJ to tlic jury in connection with otiier evicleiiv.e. Ogdkn, J. The first clause of the charge of the court in tliis case is in these words: "Property recently stolen heing found in the possession of a person, the law presumes that jiersoJi to be the thief, and such person must rebut the presumption by proof, such as having bought the property in a public manner." AVe think there is error in this charge, especially when ajij^lied to the facts as proven on the trial of this -ase. Easter Waggoner, on the last da}' of December or first day uf January, had taken from her house, by some person unknown to her, a feather 1)ed and some bed <3lothing, and m the first of June followiiiir the de])utv sheritF found the missin:; articles in appellant's house. Five months had elapsed since the pr(i[ioi'ty had been missed from the house of the owner, before it was found in the jiossession of the ajipellant, and it may have changed hand:! several times during that period; and we catmot subscribe to the doctrine laid down l)y the court, that the possession of this property, admitting it to have been stolen, was so recent after the theft as to raise the legal presumption that the party in possession is the thief. It was a circumstance which n)iglit very properly liave been submitted to the jury, in connection with other evidence of guilt; but wc do not think this evidence VAITS r. STATE. 435 of possession, alone, sufficient to warrant a conviction, and yet the oliar^i^e of the court would appear to give it that dcgi*ee of importance. Possession of L^tolen property, however remote from the date of the theft, may be said to raise a presum]>tion of a guilty pcs- gcssion; hut that presumption must necessarily greatly diminish as time elapses, until it becomes so sliglit as to hardly make an impression upon a rejecting mind. 3Ir. Bishop, after reviewing nmny decisions on this question, seems to come to the conclusion that the simple possession of stolen goods, however recent after the theft, does not raise a sufficiently strong presumption of guilt to warrant a conviction for that crime. JJut he says there are nearly always other cir- cumstances and evidence attending that possession, such as the character of the party, the explanation given or refused, or at- tempts at concealment, whicli may greatly increase or diminish the presunqition raised by the possession. AVe think the charge of the court gave too much imiiortanoo to the simple fact of the possession of stolen goods five months after the same had been stolen, and that, in doing so, it was cal- culated to mislead the jury. The latter part of this clause of the charge is still more (jbjectionaltle than the former. The jury are told that the law presumes the ])ossessor of stolen prop- ertv, reeontlv after the theft, to be the thief; and he must rebut that presumption by proof, such as having purchased the ]n'op- rety in a pul)Iic manner. "We can hardly comprehend the force c>f this portion of the charge, nor can we understand why a pur- cli.'ise made privately, if innocently made in good faith, would iu)t protect tiie possessor as fully as though the purchase had been made i)ublicly. There is much conflict in the testimony in this case, and there- fore it becomes highly important that the jury should have the law plainly and correctly given them, as a guide for their verdict. The judgment of the district court is therefore reversed, and the cause renumded. Bevcn .'.I and remanded. \ f.V 1 i i 1 1 436 AMERICAN CRIMINAL REPORTS. Peoi'le vs. Noregea. (48 Ciil., 12:3.) Larceny : Effid of recent possession . On a trial for larceny, the only ovidunco wa.s, that rospondont wius found in pos- session of the stolen hoive a few hours aftor it was stolen. Jhid, thai tlio evidence wa-s not sufficient to justify a conviction. On a trial for larceny, evidence of the recent possession of stolen propoily is not of itself sufficient to justify a conviction. Wallace and McKikstuv, JJ., not expressing an opinion. lliioDKS, J. The (lefeiulaiit was convicted of grand larceny, for the stealing of a horse. The only evidence of defendant's guilt was, that the stolen horse was found in his possession a few hours after it was taken. Ptojde v. Chavihers, IS Cal., 3S2; and I'cojde V. Ah Ki, 20 id., ITS, hold that the possession of stolen property is a circumstance to he considered by the jury, but it is not, of itself, sutHcient to warrant a conviction. It is said by Greenleaf (o Greenl. Ev., sec. 31): " It will be necessary for the prosecution to >idd the ])roof of t)ther circumstances indicative of guilt, in or -^'r to render the naked ])ossession of a thing availa- ble towards a conviction." The evidence discloses no circumstances of that character. Tlie ridiuir of the horse several miles bevt>nd tlie point where he was lirst seen in possession of it is only his continued possession of it, and is not a further circumstance indicative of guilt. Tlie leaving of the saddle with the innkeeper does not tend to i)rov(; a larceny of the horse. There nuiy be an abundance of authority to sustain the ]toiut of the attorney general, that the court erred in excluding e\ idenco as to the defendant's confession, after the preliminary evidence as to its having been voluntary; but the jioint does not arise iu the defendant's apj)eal. Judgment reversed, and cause remanded for a new trial. Hem ittltuvfoith initli . Neither Mr. Chief Justice AVjVllace nor Mr. Justice McKins- TKY expressed an opinion. If! GALLOWAY v. STATE. 437 ' ■■■ ^ml larct'ii}-, i>a a fow 3S2; ami :>f i>tult'll but it is said liy ' for the L'utivo (»!: L,' availa- Gali.oway vs. State. (41 Tex., 289.) Larceny: Evidence. Pofsession of a stolon pipe witliin a wook or ten days after it was stolen, in connection witli the other circunidtanee.s in this case, was held insufficient to warrant a verdict of guilty. TnK defendant was convicted at May term, 1873, for theft from a house of a pipe of tlie vahie of two dollars; the punish- ment fixed at two years in the penitentiary. The ])rosecution i)roved by A. D. Stroud, that within twelve months next 1>efore the indictment, he lost his pipe; had laid it on the counter in his storehouse in liusk county; that about half an hour afterwards, he looked for the pipe, but could not find it; spoke of losing it to several persons at the time; several persons were in the store trading, passing in and out of the house. Wit- ness did not see the defendant in or about the store on the day the pipe was stolen or lost; the pipe was taken without his knowledge or consent; was worth two dollars; he never saw it afterwards until it was brought to him by J. A. Poe, a week or ten days after the time he lost the pipe, when Poe brought it to witness. l*oe testified that defendant came into witness' family grocery a few days (less than a week) after he had heard Stroud had lost his ])ipe; that defendant was smoking a pi])e he thought was Stroud's; witness olFered to bu}'' it; defendant said he would sell it; witness gave him a dollar's worth of cigars for it; defendant was smoking the pipe openly in the town of Henderson, walking up and down the streets; tiiat Stroud, who had lost the pipe, was then doing business in the town of Henderson; defendant told witness first he " had found the pipe," but after talking awhile said he had bought it of a negro, whose name he did not know;" defendant at the time was drunk; witness went to Stroud and gave him the ])ipe, and told him of whom he got it on the same day he got it from defendant. No counsel for appellant. Broion, for the state. MoouE, A. J. The place and manner of the alleged theft; the character and value of the missing property supposed to be sto- ',"port a conviction for larceny. Case reserved from the County Judge, Criminal Court, of JIvron, by Isaac Toms, Co. J. The facts were as follows: The indictment was for larceny and receiving. The conviction was for larceny. There were in fact two questions for determination: 1. "Whether the admissions or oft'ers of the prisoner to settle were admissible. REGINA V. STIVER. 439 person t'liiiMe ]>ersoii celled to tlie ill). [It'll; tlio inissiiiir it wlifU negro, to rebut l)os.se-:- "uiiiKled Id have 2. 'Whether, if admissible, there was on the whole cose evi- dence to go to a jury, if there were one, in supi^ort of a chargo of larceny. The things stolen were cooper's tools. They consisted of two adzes, chaniper knife, a leveler, hand axe, and otlier similar ar- ticles. They were stolen either on the night of the 5th Novem- ber or morning of the Gth November, 187i, out of a cooper's shop in Scaforth. The shop was usually locked at night. During the night of 5th November, 1S74, it was broken into. A pane of glass had been taken out of the back window, which allowed a person to withdraw tlie bolt and enter the shop. The priaoner before and at the time of the larceny was at Seaforth. lie was in the shop the night before the taking of the tools, and had used one of them. He was frc(piently in the shop, and the evidence did not point to any other than the prisoner as the thief. The prisoner was not arrested for the stealing till nearly two years afterwards. Dur- ing that time he was proved, from time to time, to have sold several .)l: the tools at prices much below their value. lie represented that he was a cooper by trade; that he had been working at the cooperage trade for some time and was going to quit it. This statement was proved devoid of truth. After his arrest he stated that he had purchased the tools from a party in Brussels; that he purchased them in the presence of a woman now dead; and that the purchase was unide in a i)articular tavern named. His brother proved the purchase of a tool or tools by tl'e prisoner of a man under the influence of drink in a tavern at Brussels, but there was no satisfactory evidence to show that the ])urchase was of any of the tools in question. This was in January or February last. The man from whom the tools were ])urchased was de- scribed by a brother of the tavern keeper as "a liard looking case. The prisoner after his arrest otFored the prosecutor 8:35 to set- tle, and to i)urchase a new kit of tools. He told au' Mior witness he would give -SlOO if he could get clear of the tools. He was arrested on the ^Ist of September last. On that day he said to the prosecutor, in the presence of the constalde who made the arrest, that he had ])urchased the tools in a tavern at lirussels. The constable i)roved the otl'er to him of §100 by the prisoner, when the latter was being taken to the lockup. There was no evidence of any inducement ollered to the prisoner, either by the 4-10 AMERICAN CRIMINAL REPORTS. prosecutor or by the constable. But the prosecutor told the con- stable he was willing to let the prisoner go, if the constablo would. December G, 1870, J. K. Iierr, Q. C, appeared for the crown, lie referred to Archb. Cr. PI., ISth ed., 251; Uo?c. Cv. Kv., 8th ed., 50; Jux v. Adams, 3 C. cV: P., COO; Hex v. PaHr'aJije, 7 id., 551. lie stated that the prisoner desired to cite Hex v. CroMjhurHt, 1 C. ifc K., 370; lieijum v. Wihon, 7 Cox, 310; lieglna r. Wil. son, L>G L. T. M. C. 45; l!e. But tlio important fpiestion is, whether, assuming this evidence to have been rightly received, there was evidence against the prisoner of larceny. We regret he was not represented by counsel at the argument before us. But the argument, if any, on his behalf would be: 1. That there is nothing against him but the factof the posses- sion of the things stolen. 2. That the possession was not a recent one. 3. That he gave a satisfactory account as to his ])ossession. 4. That even if a recent possession, and no satisfactory ac- count given, such possession is not evidence of larceny but of receiving. Becent jwssession of stolen property is evidence either that the person in posses -'an stole the i)roperty, or that he received it, knowing it to have been stolen, according to the other circum- stance of the case, lief/ina v. Denslei/, (I C ik P.,3l»!>; Jiftjuia V. Stnith, 1 Dears., 494; lieijlna v. Byrne, L. li., 4 Ir. (J. L., GS; lieghut V. McMa/ion, 13 Cox, 275. If no other person be involved in the transaction forming the subject of inquiry, and the whole of the case against the j»risoner is, that he was found in possession of the stolen property, the evidence would no doubt point to a case of stealing rather than receiving; but in every case, except indeed where the possession is so recent that it is impossible for any one else to have com- REG IN A r. STAKR. Ul mitted the theft, it hecomes a mere question for the jury, wheth- er the person found in possession of the stolen property stole it himself or receivetl it from some one else. If there is no other evidence, the jury will prol)ahly consider, with reason, that the prisoner stole the property; but if there is other evidence which is consistent either with his having stolen the property or with Ills having received it from some one else, it will be for the jury to say which appears to them the more ]irobable solution. Jie- (jhia V. Lontjineail, 1 Leigh & C, 127, 437, 43J), 441. The rule is, that if stolen property be found recently after its loss in the ])ossession of a person, he must give aii account of the manner in which he became possessed of it — otherwise the ])resuniption attaches that he is the thief. Per Bayley, J., in Hex V. , 2 C. & P., 459. If the person into whoso possession the stolen property is traced, gives a reasonable account how he came by it, as by tell- ing the name of the person from whom he received it, it is in- cumbent on the prosecutor to show that account is false; but if the account given l)y the jn'isoner be unreasonable or iniprobable on the face of it, the onus of proving its truth lies on him. Per Ai.i)/!;soN, P., in lieglna v. Croivltiirst, 1 C. & K., 370. " Suppose, for instance, a person were to charge me with steal- ing a watch, and I were to say, I bought it from a particular tradesman, whom I name; that is frhaa faele a reasonable ac- count; and I ought not to be convicted of felony, iiidess it is shown that account is a false one." Id. The decision of Ai.nioiisoN, P., in lieijlna v. C I'oiohurst, 1 C. k Iv., 370, was followed by Lord Dknman, in lleut this camiot avail, because botjj the evidence ainl the indictment ought to bo spcciiic and cei-tain. We have to take the indictment as charg- ing the stealing of both a baidv note and a treasury note, and that is sulKcient. But still in order to convict, it was necessary to jirovc, not the stealing of one or the other, not knowing which, hut sjK.'cilicully which one. And the witnesses said, " that thev did not know whether tho ])ill was one issued by the treasury department, or by some ono of the national baidcs; but it was a bill in usual circulation, iS'o evidence as to but one bill being stolen." The jury returned a verdict of "guilty." lint guilty of what? They could not know more than the witnesses knew, and the witnesses did not know what? This is not like the case of State v. WUlucias, 9 Ired., 140, where the defendant was indicted under the statute for stealing a slave, in several counts; ono that tho taking and carrying o^vay was by " violence," and another that it was by seduction, and others varying tho //uinncr of doing the thing. There it was held sufficient if the jury found that ho did it in either way. But this is like the case of liegbia v. Bond, 1 Bennett »fc Heard's Lead. Crim. Cases, 553, where the defendant was indicted for Btealing coliij but of what particular denomina- ti 44i AMERICAN CRIMINAL REPORTS. tioii, the witness did not know. And so the indictment clmrn^es him with stealing every denomination of coin nsed in Eiii;liiii(l. The case went np to (^neen's hencli and was nnicli discussed, and all tlie judges, hut one, concurred that the tlefendant could not be convicted. In tluvt case it was said that the ditliculty hud arisen in cases of embezzlement, and a statute had been ])assed to remedy it; but the statute did not embrace larceny. It was probably in conse(jnence of that decision, that a statute was passed, 14 and 15 Vic, ch. 100, sec. 18. " In every indictment in which it shall bo necessary to nnike any averment as to any money, or any note of the IJank of England, or of any other bank, it shall be sufficient to describe such money or bank note, simply as money, without specifying any particular coin or bank note, and such allegation, as far as regards the description of the l)roperty, shall be sustained by proof of an}' amount of coin, or of any baidv note, although the particular species of coin (»f which such amount was composed, or the particular nature of the bank note shall not be proved." If wc liad a like statute here, it may be that it would facilitate the convicti immaterial. Testimony which raises a mere conjecture oujjht not to be left to a jurj* as cvi- denoe of a fact wliich a p.uiy is required to prove. Byncm, J. The count in the indictment against the prisoner relied upon by the state is that which charges him as the re- ceiver of stolen jiroperty, knowing it to have been stolen, to wit: A specified number of United States notes of five dollars each, of one dollar each and of fifty cents each. In support of the charge, among other things, the state oftered to jirove by one William Bailey that " a short time after the larceny the prisoner came to his store and purchased seversil articles, and he saw sev- eral bills of money in liis pocketbook when the prisoner went to to pay him, but did not notice the denomination of them." This STATE r. CARTER. 445 testimony was objected to by the prisoner, but admitted by tlio court. Was tliis error? Tiie rule of evidence, as to its admissibility, is, that " testi- mony which raises a mere conjecture ought not to bo left to a jury, as evidence of a fact which a ]iarty is required to prove. Mothers V. MothcinH^ 3 Jones, 132; Cohh v. Fofjlciiyin, 1 Ired., 440; State v. A/Zen, 3 Jones, 2.57. The state here was required to prove that the prisoner received the stolen " treasury notes" described in the indictment. The evidence admitted to estab- lish this fact was, that the prisoner was seen in a store, a short time after the larceny, whether a day, or a week, or a month after, is not stated; that he j)urchased several articles and hiul some "bills of nione}'," neither the amount nor denomination of which was seen. Was the sum of money seen with the prisoner unus- ual in amount? Was any of it of the denomination of that which was stolen? Was there any incident connected with the store transaction calculated to raise even a suspicion against him? A man is seen in a store, having some money and making some, we are to assume, ordinary purchases, in the usual course of business. The circumstance of his having some money was one common to all persons who use a circulating medium, and was unaccompanied l)y a single mark or incident which distin- guished his possession, from that of others, of a similar sum of money. If the prisoner had been indicted for stealing wearing apj^arel, it would have been just as competent for tlie state to prove that a short time after the larceny the prisoner was seen dressed in a suit of clothes. The evidence admitted not onlv does not tend to establish the fact to be proved, but does not afford a rational ground of conjecture 6f his guilt. AVhat effect this testimony had upon the jury, if any, we have no means of knowing. But as it may have misled them to the prejndice of the prisoner, and was improperly admitted, there must be a ven'we de novo. It is unnecessary to, and we do not decide the other exceptions; l)ut Starkie on Evidence, 335, and Pollok v. Pollol-, (VS X. C, 40, seem to hold that where the contents of a writing come col- laterally in question only, and are not material to the issue, such writing need not be produced, but parol evidence of its contents may be given. Pkr Curiam: Venire de novo. ¥m i 1 1 446 AMERICAN CRIMINAL REPORTS. nm' m i wu i ' ^B i ' uM n mt 1 . ■ •( IST ' Chi^l Cautku vif. Statk. (5:Kia., :{2fl.) Lakceny uy Baii.kk: rUmlhuj — Variauec. An indictinoiit for larceny l>y a liiiilt'e must Btiito the biiilint'iit uwiirutcly, aiul ii' it (Iocs not, tlioro will be a fatal varimico. Anthony Cjirter was indietoil for the offense of liii'cciiy .iftor a trust tlelt'i^iited, in this, tliat lie "wiis intrusted by one .John Mongin with four hundred and eighty melons of the vahie of tun cents each, the property of the said John ]\[ungin, for tlu; jtur- poso of applying the same to tlio sole use and behoof of the said John !Mongin." And "after having heen intrusted as aforesaid, failed to apply the article aforesaid as directed, hut wrongfully, feloniously, fraudulently, and without the consent (»f the owiut thereof, appropriated the sajue to his own use, without paying to the owner thereof the full value or market ]>rice thereof.'' The evidence for the state disclosed that the melons were de- livered hy ]\[ongin to the defendant to be sold for him, the jiro- ceeds to be paid to ]\rongin, less what the defendant charged for his services; that the melons were of the value charged, and that the defendant pait^ but one dollar to ]\Iongin. The evidence for the defendant is omitted as unnecessary to an understanding of the decision. The jury found a verdict of guilty. The defendant moved for a new trial because the verdict was contrary to the law and the testimony. The motion was overruled and defendant excej)ted. Trii'pk, J. The statute makes the fraudulent conversion by a bailee of many kinds of property a criminal act, to wit: money, notes, bonds, cotton, corn, horses, mules, etc. If the indictment charged that the defendant was intrusted with money, or a horse, which he fraudulently converted, it could not be sustained by proof that a bond, or cotton, had been so intrusted and converted. So the same statute, Code, sec. 4424, prescribes that when such things or articles have been intrusted to a person for divers dif- ferent purposes, to be used by him in various specified ways therein defined, and the bailee shall fraudulently convert thein to his own use, or otherwise dispose of them, he shall, on con- viction, be punished. w MAUMONT 1-. STATi:. 417 -'}' ■iitfly, aiul It 18 as mncli necessary that the character of the l)iiihiieiit, the purpose fur which the thiiii,' U intrusted, shall he set forth in the indictment, as it is pr(>j)erly to descrilte the thin<^ or ni't'ida itself. In lK)th cases the rnlo is fonnded on the ri^ht of a party to liave notice of what it is j)roposed to convict him, AV"e do not suppose that any indictment under this statute evef failed to deline hoth, to wit: the article de])osited, and the nature or object of the bailment. Kacli of them is set forth in the one uiuler con- sideration. The bailment therein defined is, that the meloi'j were intrusted by the owi:cr with the defendant, *" for the pur- pose of ai)plying the same to tlie solo use and bcneiit of the said owner." The proof was, that they were delivered to the defend- ant for the purpose of selling the same, and after the defendant was satisfied out of the proceeds of sale for his services, the sur- plus was to be j)aid to the owner. When the bailee is charged with a trust to be executed in a special mode, distinctly defined when it is created, and is to be brought to account for an alleged breach thereof, either civilly or criminally, he should be notified in the suit or crlniinal accusation, of what trud it is claimed he has been gnilty of violating. Wo think justice and reason de- mand this, and that it is but preserving, a vital rule that obtains in all pleadings, civil or criminal. Jxidijmcnt reversed. Makmont vs. State. (48 Intl., 21.) LiQuou Skm.ino : Sale of liquor by club to members. In a prosecution for solliiiy liquor on Sunday, it appeared that defendant was an ofticer of a cluh wliieli met on Sundays for literary and social puq)Oses, and wliicli was also a nuitual benefit society, and tliat no persons but niem- l)eiN wi'ri' admitted to tlieir meetinj^js; that lajjer licer was purchased with the society's moneys, and that on Sundays the members who desired drank the beer, and each time tliey j,'(>t a f,dass, paid five cents into tlie treasury, and that the defendant hail no personal interest in tiie matter, but merely acted as an otHcer of the club: JIilil, tliat tliis Wius a sale of liquor by the club to its members, and that defendant was properly convicted, havuig been tiie a^^ent who made the sale. BrsKiuK, C. J. The appellant was indicted, tried and con- victed, in the court below, for selling intoxicating liquors on Sunday, and permitting them to be drunk upon the premises. 'i< ¥ r g.i« f'.'a 1 -J 'i .i '< ) 1 fl 448 j\MEKICAN CRIMIXAL REPORTS. The court overruled a motion for a new trial, and rendered judgment on the finding. The appelliint has assigned for error the overruling of the motion for a iiew trial. It is contended hy conneel for ap])ellant, that the finding of the court was not sustained by, but was contrary to the evidence. The ease was tried in the court below, solely and exclusively upon an agreed statement of facts, which was as follows: " 1. At and for a long time previous to the day named in the indictment, the defendant was a member and the treasurer of an association of German citizens of the city of Indianapolis, in the county of Marion, in the state of Indiana, consisting of about forty persons, united together for sociable and relief purposes, and'called "The Modock Club." '*2. Each person becoming a member of said sociefy paid into the treasury the sum of fifty cents, and thereafter a nn- lily assessment of ten cents, to form the basis of a fund for ])aynient of e.\i)enses and reliefs of said society; and the said society Mas and is regularly oi'ganized, and has a president, vice-president, secretary and treasurer. " 3. Said society meets regularly on the first day of the week, commoidy called Sunday, and the meukbers pass the time of meeting in hearing speecJies, and discussions on divers subjects, moral, ])olitical, and historical, reading the newspapers sub- scribed for by the associatioi\, conversing, sniol.ing, taking a glass of lager beer, und diinking same, when they fuel disposed thei'ctt). *' 4. The meetings of said associ.ation are held in ^larmont's Hall, a building on the southwest corner of Illinois and CTCorgiii streets, in the city of Indianapolis, in the said county of Clarion, in said state of Indiana, and no persons are admitted to said meetings except its members, and each member is furnished with a pass-key by which he can enter the liall on the days of meeting. '• 5. On Saturday of each week, the treasurer of said associa- tion (who is the defendant in this indictment), by its order, purchases a keg of Cincinnati lager beer, Mhich, if drank in suf- ficient (juantities, is an intoxicating litjuor, for the said associa- tion, and pays for it out of the society's money, the purchase and payment thereof l)eing always nuide on Saturday, the last day of jst't; MARMOXT r. STATE. 449 eacli week; and the said keg is on Satuvday placed in said society's hall. " 6. At the meeting on the first day of the week, commonly called Sunday, when a member of said association desires a glass of beer, it h drawn from the keg ])urchasedfor and belonging to said association, and the meml)er, for whom it is dravvn and who gets it, delivers to the treasnrer live cents, which is placed in the trea: try of the society, and tlie treasurer gets no part of it, and derives no gain or profit whatever from tlie same; and all of said beer left after said meeting is thrown away. " 7. The said money, rocei\ ed for each glass of beer drawn for and nsed by n member of said association, goes into the society's treasury, to keep u]) its funds for payment of expenses, procur- ing refreshments, and for reliefs, which expenses are fuel, rents of liall, news])apers, the beer nsed, and the donations or reliefs, payable to each member of said association who, from sickness or other misliaps, may reqnire assistance; and a standing com- mittee from the members of said society is appointed to see after arJ ii:qu'rc into and direct the ])ayment of necessary reliefs in Oil sucli cases. " 8. TiiC !Ufotings of said association were and arc conducted in an orderly manner; and it was not the intent of said society, in its organization, nor is it the intent of its members in carrying it on, to violate the provisions of any law of tlie st.iteoE Indiana. "9. On the day named in the indictment, and at a meeting of said society, at and in its said hall, the defoidant, a inember and tlif treasurer of said society, at tlie request of the said AVil- liam Grasson, named in the indictment, who was also a member of said society, drew a glass of lager beer from the keg purchased for and btlinging t,: sai>' society as ai'oresaid, and handed it to said (irasson, who drank it in said society's hall, and said Gras- son handed to said defendant, as such treasurer, five cents, wliich defendant immediately put into the treasury of the society, for its use and ])urposes aforesaid, deriving no gain therefrom. " 10. If said act of drawing and handing said glass of beer t<.> said (Jras^on, and receiving and putting said live cents into the treasury of said society, under the circumstances afoivsaid, con- stitute an unlawful sale of intoxicating liquor, for the purpose of gain, within the meaning and under the provisions of the act of the general assembly of the state of Indiana, of February 27, Vol. I.— 29 •150 AMERICAN CRIMINAL REPORTS. 1, < ■I I ! 1 J 1 1 ISTo, the tlefeiulant in guilty, and if otherwise, he is not ii-uiltv." It is very earnestly contended by counsel for appellant tli;it. ujton tlic aij^reed statement of facts, thore was no sale dP ' eating liquor within the nieaning of the statute upon wliali this jirosecutioii is based; but conceding there was a sale, the a])pol- lant was wrongly convicted, because it is agreed '• that it was not the intent of said society in its organization, nor is it the intent of its members in carrying it on, to violate the provisions of law 01 the state of Indiana." Counsel for a])pellant say "To sustain the conviction in tli'- case, the defendant must have sold intoxicating liquor on Siii- day, the first day of the week, to AVilliam (Jrasson; the sale must have been made in Marion county, Indiana; it must have been made for the ])urj)ose of gain; and the defendant must have suf- fered ai d ])ermitted the liijuor to be drank in the building, ur upon the premises where it was sold," It is conceded that, if the transaction amonntod to a sale for gain, the appellant was rightly convicted uj)on the first gr()ini(l stated. To constitute a sali; there must be a passing of the right or title to property for money, which the buyer })ays, or prom- ises to pay, to the seller for the thing bougiit or svdd. Nov. ^[a.\., ell. 1:J; Shep. Touch., 214; WiUhunsion v. lirinj, s 11 iw., •i:t.-i. Cnder the a rrangonicnt ".^s agreed u]ion, the keg of beer bi'- longed to the >.i('iety. The appelhint was the agent of the soei- (.■ty, and if he sold in violation of law he is liubk; to 1h' .'onvicti'd in the !~,.:iit' niannei' and upon the same princijde as a liar-teiidir or a per,-on wlio holds a jici'init under the statute in ijuestion is liable, who j-('1I> in viojiitiou of the statute. As the keg oFlK'er when purchased belonged to the society, the tjuestion arises whether the .-ociety, by its agent, could make a valid sale (^f su'di beer to the jicrsons conijiosing such society. ^Ve know of no ]irincii)U' of liiw whicli irijvents it. AVe know that it is tlii' dai- ly habit of piirtiici's to sell the firm ])ro])ei'ty to the jum'soiis c()in- jiosing the linn, and quitt; frecpu'ntly the iiK-mbers of the firm are permitted to purchase such goods or articles as they may need at cost. AVhen a firm purchases with partnershi[) funds, or u]ion credit, a sack of cofi'ec or a, barrel of sugar, the coil'ee or sugar belongs :MAR.M0XT r. STATE. 451 ^1 IS not to the firm; l)ut wlien a ]i;u-t of cadi i> 1-.ikoii out aiul tnuK-f erred to cacli inoiuber of tlio firm, eitlier f withdrawn ceased to holoni;; to the society pjid hccame the separate property of the memher so receiviiij^ it, ami the traiisaciion invested him with the power to drink itliim- belf, to li'l e it away, to sell it, or to throw it away. Jjut, says the learned counsel for the appellant, there was no gain or profit to tl'.e :n)]i('llant. It is not lecessarv that there should he irain VI' j>rolit to him. It is sut' ^ient if the sale or transfer inured to the henefit of hi.- principal, the society. It is agreed that eac^' memher, upon his initiation, jiaid fifty cents, and thereafter a monthly assessment of ten cents to form the hasis of a fund for payment of expenses and reliefs of the society; and that the inoney received for each glass of heer drawn for and used hy a luenihi'r of said association goes into the societj^'s treasury, to keej) u\> 'Ar. funds for payment of e\})enses, jirocuring refresh- ments, and for reliefs, which expenses are for fuel, rents of hall, i:ews]i;ipers, the heer used, and the donations or reliefs payahle to each memher of said association who, from sickness or other mishap, may reipiire assistance; and a standing committee from the memliers of said society- is a])])ointed to see after and iiKpiiro into and direct the payment of necessary reliefs in all such cases, ^\'e are not informed what ])rofits are realized from the sale of each ki'g of heer. hut it must he considerahle, or the jn'oceeds \\(»uld iKtt he sntlicicnt to ]>ay expenses and furnish the necessa- ry reliefs to tli(! sick aiul unfortunate meiiihers of the society. I'ar-^iius on Tartnership ^ays: " Any partnershij) would jji-oha- hly cMUxnt that a partner might take a ]iart of their guoils on his (iwii a<'count, and would charge the same t(,> him. Ihit with- out such ci»ii>ent. txiu'css uy implieil. it is ipiite clear that hecaii appropriate, luithing to himself. Every partner owns the whole partiicrship iirojierty, suhject to the Cijual •.iwnershi[) of every other partner, and no one partner can male his own ownersiiip of any ])art ahscjlutc and relieve it from the incnnd)rance of tiie ownership (if theothers without their consent." Pars. Part., 108. So, in the present cse. When the society appointed the ap- 452 AMKRICAN CHIJIIXAL llEPORTS. ii !' > ,1!; •s i 1 ;;, it ' . in m pellant its a^fciit fortlic sale of Its 1>ec>r to the mciiiltcis of tlic ussociatioii, it consented tliat each member mii^ht hecome thu owner of sudi ])(>rtion of the ])artner,sliii) property as lie niiirlit he Avillinu; to ])ay for, aiiropriate it to his in«livi(hial use. If tlie transaction set out iji the aj^reed statement of facts \>v not an evasion and violation o? the law, then a number of ]KMVniis may do that lawfully which if done by one ])erson would be un- lawful. It would be a repn^ach to the law ami its iulmiinstra- tion if a combination of persons could, by such an arrangemi'iit, evade the law and thwart the legislative will. ('ounsel for appellant greatly rely upon the case of Cuiiiiiinn- 'ti'cnltli V. Smiili, M^'l Mass., 144. In that case the facts wvw. " Several ])ersons formed a clul), of which the defendant was a mcMiiber; they advanced a certain sum <>f money each, which was put into a common fund; the defendant was chosen agent of the clid), and under instructions of the club, purchased li(|U(irs and refreshments for the chd); the fund was taken by the defend- ant and invested for them, and a certain number of checKs. of the amount of live cents each, were delivered to each iiiember of the club, to the extent of the money advancey liim as agent of the club, and the iicjuor i-o |inrchased was thai oT lie club, th(! members advancing the money to |)urchase the Minie, and if checks were distributed to each of tlie members aceoriling to the amount advanceil by each, and dei'i'udant was a member of the club, and deli veiled to each mendier u]ton presentation of eucli checks, from time to time, the amount of li(jUor represent- ed 1 ■ such checks, that woulil be a sale by the defendant.'' m ■:f :^ ! H >! MAILMOXT r. STATE. 453 Tlic court, in speaking of the abovo rnliiig of the court below, Bays: "One of the rulings of the learned judge of the superior court, at the trial, appears, however, to have been erroneous. The arrangement described in the bill of exceptions for the for- mation of a club, tlie ])urchase of li(piorswith their joint funds, antl their distribution among tlie members by the agency of the defendant, may have been a mere evasion of the law. AV^hether it was really so, however, Avas wholly a ducstion of fact, to bo p}X.ssed upon by the jury under ])roper instructions. The court was not warranted in assuming, as a matter of law, that it was necessarily an evasion, or that, as a matter of law, the facts stated, to use the language of the ])residing judge, ' woidd be a sale.' "It certainly might luippen, and not unfre(|uently has hap- pened, that a number of persons unite in importing wines, or otlier liipiors, from a foreign country, to be divided between them according to some agreed pro])ortion. It could not seri- ously be contended that the person who shouhl receive the licpior so imported, at his place of business, ami make or suj)eriutend tlie division among the contributors to the ])urchase motiey, is a seller of intoxicating liipiors, or that they buy the liipiors of liim. It is dillicult to sec how it could malce any diil'erence that tlie li(|Uors !ire of various kinds, and were purchased in this country instead of lacing impcu'ted from al>road, or that the per- son who is to make thedistribntion delivers them in small quan- tities, and keeps his account by means of tickets, or checks. If the liipiors really Iielonged to the members of the club, and had Ix'i'ii pivviously purchased by them, or on their account, of some juTson iither than the defeiulant, and if he merely kept the I'lUors for them, ami to be divided among them according to a ]irevionsly arranged system, these facts would not justify the jury in iinding that he kejtt and maintained a nuisance, witliin the meaning of the statute under which he is indicted. There would be neither selling nor keei»ing for sale. On the other hand, if the arrangement were mere evasion, and the substance of the transaction were a lending of money to the defendant that he might buy intoxieating li(juurs to be afterward sold and charged to the association, or if he was authorized to sell, or did sell, or keep any of the li(iuors with intent to sell, to any persons not members of the club, he might well bo convicted. This, how ioi AMEIIICAX CUIMIXAL KlU'OKTS. HI I n ever, wonM 1)C a qnostion not of l;i\v l*nt of fiict, and wijiild full wholly within tlic jirovinct' of tlie jury/' The only point actiially decided in the ahove case was, tliiit the (juestion of wliether tlie arrangement amounted to a sale was . for the jury, and not for tlic court, ajid that tlie court, in assum- ing to decide the question, usnr[ied tlie ])rovince of the jury; and for this error the judgment was reversed. In that case tlic liquor was purchased with money helonging to the clul), and a certain nuniher of cliecks, of the amount of five cents cacli, were delivered to each meniher of the eluh to the extent of tlicj money ailvanced hy each, and upon the ju'esentation nf -ncli checks the defendant would deliver to that memlter licpior to ;lio amount of the check presented. In that ease, tlie defendant re- ceived no money. Nor was tliere an accumulation of a fund fur the payment of expenses ajid reliefs. The illustration given by tlie court of the im])Oi*tation of li(|U()r, and its division according to an agreed jirojiortiou, a; ;ili('d witli much greater force to that tlinn the jtresent case. It is (juite ohvious thiit in the ciise sup]iosetl. tliere would ])e no sale; hut the case supposed is quite diilereut from the one now in judg- ment. The present case was tried hy the court, and its decisinu fin the question of fact is entitled to the same weight as the ver- dict of a jury. The case of T/ic State r. ^Fcrccr, ?,2 la., 40.5, is much in ])oiiit. Tlie facts are stated hy the court ai- follows: '" From the evidencu hefore us, it a])pears that there existed an organization cidled t!ic 'AVinterset Social Cluh,' the object of wh'ch was to suoply its mcmher.s with intoxicating li(piors, to he used as a 1/everagr. The manner in which this cluh carried on its operations is not explained further than it is shown that defemlant liad jiosses-ioii of the li(piors used, and sold tickets to memhers of the cliih, which were exclianged for or given in payment of into\icatii!g ]i(piors in defeiulant's house, hy the memhers of the cliih pre- senting the tickets. Tho liquoi's were served out to tlie ticket holders and nuMuhers of tlie cluh l»y defendant. Persons becair.u memhers hy signing their names in some hook (hut what were the contents of the hook ..nly one crite- rion 1'V which the guilt of men is to be tested. It is whether the uiiiid is criminal. Criminal law relates only to crime. And neither in phil«'so|»hic;ii ^peculation, nor in rt-ligituis or moral Heutiment, would any ]>eo])le ''i any ag.' allow that a man should be dt^MiiL'd guilty uides- his laiiid wus f;o. It is tlurei'ure a priii- ci[)le of our h'gal svstcm, as ]irob;ibly it is of r\i'ry other, that the essence of our otlense is the wrongful intent, without which it camiut exist." 1 ^>i^h. i'rim. Law, sec. -JST. •150 AMERICAN CRIMINAL REPORTS. '< n ...' 1 r WJiile the doctrine as jibove stated is uiKjuestionably tlic law, in its ajiplication to the facts of a i)articiihir case, it encounters and is s^oniewliat modified hy arbitrary lei^al rules which it has been found necessary to establish, in order practicidly to admin- ister justice among men, and these rules are: 1. That every man is ])resumed to know the laws ol the country in whieh he dwells; or in which, if residing abroad, he transacts business. 2. That ignorance of the law excuses no man. 3. That every ])erson is ])resumed to intend the natural and reasonable conse(juences of his acts, aiul when ho viohites a law the presumption arises that it was wilfully done. 4. That ignorance or mistake in point of fact, when the ]»ersou has been misled without fault or carelessness on his i>art, and where he believes, and has reasonable ground to believe, a certain state of facts to exist, is excused for acts honestlv done while so misled. 1 liisli. Crim. Law, sec. 101; Squire v. The Slate, 10 Ind., 4.')9. The appellant is presumed to have known the law, and if he did not, it is no defense. There is no pretense that there was any mistake of fact. The a})pellant having done an act in viola- tion of the law, the itresuniption is that the act was done wil- fully. The question i)resented for cmr decision is, wliether such ]iresuinj)tion is overcome by the admission nuide by the state. That admission is to be construed in connection with all the other admitted facts; and, in our opinion, it cannot be construed as an admission that there was no criminal intent; but that the mend)ers of the association believed that their acts were not in violation of law, and that the appellant was not guilty uidess the facts admitted rendered him so. This is shown by the last ad- mitted fact: " If said act of drawing atid handing said glass of beer to said (Jrasson,and receiving and putting said live cents in the treasury of said society, under the circumstanees aforesaid, constitute an unlawful sale of intoxicating lifpior bjr the ])ur[)ose of gain, within the meaning and under the ])rovisions of the act of the general assenddy of the state of Indiana of February 27, 1873, the defendant is guilty; and if otherwise, he is not guilty.'' This admission removes any aml)iguity that may exist in the admission, with reference to the intent of appellant, and must control. The sole question, therefore, for our decision is, whether aw. REG IN A V. UELIIONT. 457 tlie trails-action, as agreed upon, aniouuted to an unlawful salu of intoxicating liciuor. Having reached tlio conclnsiou tliat the transaction amounted to a sale, we must, necessarily, hold that it was unlawful. The judgment is ailirnied, with costs. ill ' .» i RkgINA vs. liKLMONT. (:Jo U. C. Q. H., 298). Reoulatiox of TAVEUNa: I'mhihlthifi U. Section enables the commissioners to pass by-laws "for reg- ulating the houses or jdaces to be licensed, the time licenses arc to be enforced," etc., and the " sums to be jiaid therefor." And section IS of the by-law provides: "that the bar-room ot every licensed tavern in use for bar-room jmrposes, shall be closed and unoccupied, except by members of the family of the keeper of such licensed tavern, or by a ])erson in his employinei t, and shall have no light therein except the natural light of day during .^' 458 AMKIUCAN ClllMIXATi lIKl'Dfi'l'S. the timi! pndiiUitcd ]>y tliis l»y-lu\v for tlio sale! of intoxicutiii" li(j(tiv, K.'ivc; iuul t'.\(!i'|»t fur iiu;y the j)i"i'{'e(liii<^ Koctioii, the tiiiits jtroliiltitcd was after tlic liour (»f \'2 lit iiiirlit until ;"> A. M. tin- followiii'' diiv. I'Ik! (•(tiivictioii <.'()iMj)l!iiiK'/v///,.s7//<, (J. ('., sliowed for ciiiisc, :;j A'ic, cli. 152, ()., and ;'>I5 Vic, eh. tiS, ( ),, iuithoriziiiiLj; tiui imlici! r"'nMiiissiom'rs to jiass sucli a bydaw. 'I'hey ]ia\(! ('.\|ii'('s>lv given them tin; ])ower to ri'i^nlate taverns, etc.. Tliv. hy-laws must l)(! interinvted, and it must be assumed that the coiiniiis- sioners were; actiiii!; reasonably; and the fact that if coiirtrunl unreasoiialdy, and according to its strict letter, it might lead tn unreasonabh; results, is no ground for (quashing it. See, also, ;;j Vic, ch. 2-J, sec. ."il, (). jV. Mnrjili;/^ roiitrii: Sec. ID of the by laws, is iinreasoiiabjo. (live it its lillect, and the family must sit in the dark, and a .serv- ant could not go in and wind U[» a cl(»ck. 'J'he caus-e why the light \nis used on tlu; occasion complained of was a reasonable one; it was to wash uj) the dishes used at a su|)jier, which was concluded before tla; prohibted h<»urs. It Is ii<»t pretended that any li(|iior was sold, or that any of the evils which the act, eilluT in sj)irit or the letter, intended to guard against, occurred, or uere likely to occur. INfoiiitisoN, ,]. It was coiitendi'd that, under the ])ower of ng- ulating the houses or jilaces to bi; licensed, tin; p<»lice coiiniiis- sioners had authority to pass a bydaw such as tlieoiic! in (jiiestion, providing that the bar-room of any licensed tavern, and any room of such licensed tavern in use for bar-room jiurposes, shall Ik; closed, and remain chtsed and unoccuiiied, except by niember.-, ol' the family <»f the keeper of the tavern, or by a ])erson in his em- ployment, and shall have no liglit therein, except the natmal light of day, during the time jtrohibited by the same by-law for tlie sale of intoxicating liipiors, that is, between the hours of Vl at night and .5 o'clock the following day. ti)xi<'iitiiill^t^ll(ll iit Icail t(. M, hImi, ;;2 t';lS()Il;il,I|.. 111(1 !i f-cr\- u why tho iTJisdiiulile wliich was iJiiled that iict, cithci' '(Minvd, (!!• ■cr of )■(■-•- coiiiiiiis- <|ii<'stioii, any rooiri •, siiall 1,0 ('IIiIh'IVS (if II hi.s ciii- le iiatuial )j-la\v I'ur ur.s of IJ RKiaXA r. ni;i,M(»NT. 459 The Ity-luw i»r. It also j>rohii»its (ulthoiii^h it may he ovcuiiii-d i the use of li;;ht tlicrein, ex('t'|tt — what i.s not very likely thi'y can have; after 12 at ni,:,dit - tin: natural linht of day; j)rohil)itin_i;' li;^dit from u lire ill ii stttvc, which would Ih; lUHiessary in the winter lime for tilt! ot'(*ii|»atioii of the room hy family or servants, as well to iireveiit the frct'/.iny; of the li(|iiids k((]>t therein. It ;4;oes so far as evcMi to ]»rohil)it the li^ht, I may say, of the iiiooii, or the li.i^ht from a i!,iis lanij) in the street j)enelratiii^ the har room. This coiivietioii woiihl nuiet the hitter case, for the defendant is convicted of havini^, in the har-rooin ttf his said licensed tavern, a liifht otlujr than the natural li^-ht of day, to wit, the liii,]it of and from a •' i f tl ley were cl eaninj; f>r wasliiuir tlie th idiiiii that the usiiii,' of a light would ^/i an offense, suhjecting the tavern keeper t(» a penalty of *?50, "■■■ provided hy this by- law, or ini])risonmcnt with hard labor for six months; or, mj in IMAGE EVALUATION TEST TARGET (MT-3) '■ 1.0 1.1 ■» US 12.0 6" Photographic Sciences Corporation 23 WIST MAIN STMIT «yUSTIR,N.Y. 145M (716)S73-4S03 m "I 6^ 460 AMERICAN CRIMINAL REPORTS. the case before us, where it appears, from the evidence rcturiicJ, the tavern keeper and his servant were using the light clearing away dishes after a supper that had been provided that evening at the house. It is not pretended, nor does it appear by the evidence, that the bar-room was open for the sale of liquors, or that persons other than the tavern keeper, his family, or servant, were there- in at the time. The conviction is for merely having a light therein. I notice that the by-law does not proliibit the use of a light during the prohibited hours in a saloon; if it is proper to pro- hibit the use of a light in a tavern, it is equally so in a saloon, which is only a place for drinking, and freijuently a den of vice. As an authority bearing on the case, I refer to the Calder cO Jlehhle NavUjatloii (Jo. v. Pilling ct al., 14 M. & W., 70, We are quite well aware liow ditftcult it is for the municipal authorities to enforce regulations for the orderly keeping uf such licensed houses, as well to meet the devices parties may re- sort to for the purpose of evading and contravening them, aiul no doubt it was with such a view the ISth section of the by-law was ptissed; but at the same time care must be taken when cre- ating oft'enses to which are attached severe penalti»'s, that tlie legislature has clearly given the j)ower to do so. On the whole, we are of the opinion that the conviction should be quashed. There will be no costs. Conviction quashed. Ceakfoss vs. State. (42 Md., 40:3.) LiQUon Selling: Giviitf/ — Constitutional law — Pku'ling — Statutovij con- struction. A statnt(> entitled "An act proliiliitiiig the sale of spiritiioii,s or fcrmontcJ li(l\iors," etc., prohibited also the j,nving away of luiiior on election dnys. Tiie provision against trivinf^ was held not void or obnoxious to the ■.•oiistitu- tional provinion that " every hiw shall eniln-iu;c but one subject, and that shall be described in the title." It is sufficient to char<,'e an oflense in the words of the act creating the oH'ense, •when the charge made in that fonn fully informs the defendant of the na- ture of the oifenso chiu-ged against hun. CEAEFOSS r. STATE. 461 ?! II !C returnej, ^lit cleuriiiir Jilt eveniiiL' itlenco, that lat persons were tliere- '".J,' «■ light of ii light ler to pro- » a saloon, It'll of vice. i Caller cO Hiunicipal x'e])iii^r of los iiiiiy re- tlioiii, and the hy-hiw I when ore- 's, that the ;ion should tttitonj con- r fcnuoiitcJ •'ftioii (lays. llL' <.'(lllstitll- ■t, 1111(1 t!iat tlio olil'iiso, of tlie na- A statute prohiljiting, among other things, the giving away of spirituou3 liquors on election days by any person, is held to extend to and include acts of hospitality in a private house. Statutes are to be interpreted according to their natural and obvious meaning, and where there is no ambiguity in the language and its meaning and pur- pose a.-e clear, courts are not authorized either to limit or extend the lan- guage of the act by constniction. Stewakt, J. The indictment charged the appellant with a violation of the act of 1805, cli. 191, in giving to one Michael I3nrke, spirituous liquor, to wit: " Whisky," on the day of an election, in "Washington county. The traverser pleaded, that in his o\\ti house, he was visited by some frieiid>j, who, in the course of hospitality, partook of some whisky which he had there for his own nse. The state demurred to this plea. The court sutained the de- mur' r and imposed a fine on the appellant. Under the writ of error this judgment has been brought up for our review. In the case of Sjnilmnn v. State, 27 Md., 520, where the state demurred to the ]>lea of the traverser, and judgment by the cir- cuit court was rendered again^st liim, upon writ of error to this court it was decided, that he could avail himself of any defect in the imlictment, notwithstanding the provision of tlic Code, art. 3(>, sec. S2; that all the pleadings, in criminal or in civil cases, were open to review, under demurrer; and judgment must he given against the party wliose pleading was first defective. In the abocnce of such demurrer lie could liavc no such defense. Cowman t\ The State, 12 Md., 250. It was urged in the brief of the appellant's counsel, that the word ""give," in the act ir question, must be construed to mean "sell,"' an',pe)> of any hoteJ^ tarern, utofe, tlri nl'lng edahl ii^lnnent. or anij (>t]i< r 2'>lace irhe)'e litjuors are solil, or for am/ jh r.'^on or jier.sn/tN, dJ- recthj or hid! recti ij, to i^eV, harter or {/ire, or di.y>o.\,' nf urn/ sjnritiioufi or fi'riii<:nted liqaors, ale (rr tner^or infn.rii-ntiixi drinks (f am/ kind, on the ifai/ (f any election her< r to Ia held in the nereral counties of this stated There is no quostion, as urged by the apjicllant's conn-cl, that in construing this statute the real intent of the legislatiiri' inii.-t prevail over the literal sense, if there be any inconsistency; a thing within the letter of the statute is not within the statute, unless it be within the intention of the makers. ]>nt where the M'ords are plain, they are the best evidence of what was meant. AVhilst the statute is not to be followed in its literal term>. if it can be discovered that such was not the intention, yet the niean- ing must l>e ascertained by a reasonable construction to bo given to the provisions of the act, and not one founded on mere arbi- trary conjecture. Wlien clear words are used to indicate the purpose, there Is no necessity to resort to other aids. Bcale v. Ilarwood, 2 11. & l)ccanso it % " with- milawful. Hciciit. It III, but 1)0- t-' ill wli it'll '^ it .'liters <> Parkin- olectioii is ^'»'"1 ill the was ,i,nvcn. turo of tlio to protect 'titer trial; oroon, ami miiial Y^vo. tj(c Ix'i', p,^)< ' "HI/ nfli, r ^•r.snil.'^, ij'l- >.sr Iff lOliJ tuxti-iiflnff 'ft' r to fic \m II. k CEARFOSS V. STATE. 4G3 J., 107. K'o man incurs a penalty unless the act wliicli subjects him to it is clearly, within both the spirit and letter of the statute. Things which do not come within the words are not to be brought within them by construction. The law does not allow of con- structive offenses or of arbitrary punishment. Dwar, on Stat., 247. Bat when the acts are within the words of the law, there may be cases not within its spirit, or within the scope of the mischief intended to be avoided. Whether the administration of intoxicating liquors, in good faith, for medicinal or otiier necessary purposes, although within the letter, would be within the mischief, is a question not neces- gary to be decided in this case; but if it should ever arise, we ghoiild have no hesitation In saying that it would not be an of- fense within the spirit of the act. Statutes should be interpreted according to the most natural and obvious import of their language, without resorting to sub- tle or forced construction, for the i)urpose of either liiuitiiKj or extend UKj their operation. Dwar. Stat., 141-. It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case, for which the words expressrly provide, ehall be exempt from their operation. Story's Contl. Laws, 10. It is only in cases where the meaning of a statute is 'doubtful, that the courts are authorized to indulge in conjecture, as to the intention of the legislature, or to look to conse(juences in the construction of the law. AVhen the meaning is plain, the act mwit be carried into eilect according to its language, or the courts would be assuming legislative authority. SaAt v. Heed, 10 Pet., idi. The intention may be gathered from the occasion and necessity of the law. State v. Jfilhurn, 9 Gill, 105. According to the express terms of this law, and the policy the legislature seemed to have in view, there is no escape from the conclusion that this case is within the letter and mischief of the law, and which cannot be avoided by the courts, without a refusal to enforce its provisions. The words of the law, the occasion of its passage, the applica- tion to the day of election, the absolute jtrohibition to licensed dealers in licpiors, the manifest eit'ort to employ terms to prevent evasion, its prohibition to all persons without reservation, the e.\tent of the penalty, its reference to any and all intoxicating 464 AMERICAN CRIMINAL REPORTS. : ,. SI drinks, without exception as to person or place, afford undoubted evidence of the design of the legislature to discountenance tlieir use in any of the modes specified on election days. During the collection of the people in unusual numbers, on such occasions, with tlieir feelings warmly enlisted, and uiulor circumstances calculated to arouse the most active efforts of per- sons and parties to pi'omote success, causing in themselves nuicli excitement; tlie legislature, we take it, intended there should be no such additional element of disorder as intoxicating liquor. All keepers of places where it was accustoined to be sold, witli license otherwise to sell, are strictly and under heavy penalty, prohibited from disposing of them, in any way, on that day. They are Udt allowed, dl recti ij or indirectly, to sell, barter, give or dispose of such H<|Uors. This class of persons, by special designation, although they have ])aid for the license to sell otherwise, are denied the right. All other persons are prohibited from like use. If the appellant be excepted; if he may, upon the plea of hos- pitality or social intercourse invite his friends to his house, and there entertain them by the use of intoxicating drinks, with im- punity, other persons, without home, cannot be denied the like privilege fo indulge their frieiids by its use, in their rooms, at the hotel, or other places of festive resort. Where is there to be any limit? AVould not such a construc- tion of the act as tolerated sue use of intoxicating drinks reu- der the law in a great measure a nullity? It is obvious the legislature was apprehensive of the necessity of such a law; and that there would be insidious efforts to evade it, under one pretext or another; and therefore has provided, by apt terms, against the use of intoxicating drinks, in any of tlie modes described, by any and all persons, on the occasion pro- vided for. The demands of reasonable hospitality, or the civilities of social life, can be gratified on the day of election, at least, with- out violation of this law. Its provisions interpose no obstruction whatever to the obliga- tions of hospitality. At any rate, such indulgences must be subordinated to the higher demands of the law. Whether the legislature, in the exercise of its police authority, for the accomplishment of the purposes contemplated, have acted iindonLted auce tlieir mbcrs, on ind iiiuler I'ts of per- ves much should bo liquor, sold, witii y penalty, that day. irter, give HEXSLY V. STATE. 405 with the soundest discretion or not, it was their prerogative to determine; they were the best judges as to that, anrcmiscs on the others, but said and did notliing in regard t(t tlie sale and delivery of the whisky." After this, the defendant moved the court to exclude all the evidence of sales of a quart and over, on the ground that it was illegal, irrelevant, and inadmissible under the issues. The ccttirt overruled this motion .'uid defendant excepted. The court of its own nu>tion charged the jury, " if they believe, from the evidence, that the wifeof defendant sold whisk}' in (pianti- ties less than a quart, in said county, within twelve months before the finding of the iiidictnu'nt, in the presence or within the knowledge of the defendant, he is guiltv as charged."' The de- fendant excejtted to the giving of this charge, and re(juested the court to give the following written charges, each of which the court refused, and to each of which refusals defendant duly ex- cepted : 1. "If the jury believe, fro:n the evidence, that Spurlock went to defendant's liouse and asked his wife in his presence for whisky, and she went to the smoke-house and got it, in a (piaii- tity less than a quart, and took it into the house in presence of defendant, and Spurlock took it away, then defendant is not guilty.*' '2. " The state is bound to i)rove a sale, and if it has failed to ])rove what was })aid or to be ])Hid for the whisky, then no sale is proved and the jury cannot find defendant guilty." The various rulings to which ex;ieptions were reserved are assigned for error. Jiiiiies Aiken, for appellant: 1. The evidence does not show such a presence of the husband as will raise the legal ])resiim]i- tion of coercion by him. The wife acted voluntarily in the mat- ter, and defendant had no part or lot in it. 2 Iluss. on Crimes, 21. The court should at least have left the question of coercion to be passed on by the jury. Sif^de *'. Parkcrson, 1 Strob., 1(!'J. 2 Xo sale was proved. A current price in money is essential to a sale. 2 Bish. Crim. Law, § 903. witness lie ]»roiii- liiid ofttMi c'furu tlio iini :i hiilf it on uno 1 iind dill y." h all the lilt it was The court y believe, in (juanti- :liri before itliin tlie The de- lected the vhieli the ; duly ex- loek went !3. :'.. The evidence of other sales was admissible to prove that accused habitually sold liquor, and that he knew and consented to the acts of liis wife. Scihert v. State, 40 Ala., 60; Pierce v. State, id., 743. Manmno, J. An offense not mahnn hi se, committed by a married wonum in the presence and with the knowledge of her husband, is presumed to have been committed by his authority, and he is punishable by indictment for it, if it be an indictable, offense. A witness who says that he bought spirituous liquor of a married woman in the presence of her husband, in quantity less than a (jnart, testifies thereby that she sold it to him in the ])re3- eiice of her husband. The terms "buy ' ' and " sell " are the con- verse of each other, and a witness who says that he bought of antither a particular article, affirms that the person with whom lie dealt sold it to him. It is not necessary to say further how innch or what the purchaser paid for the af'ticle. If the accused desired ex])lanation in that direction, he should liave obtained it by cross-examination, or other evidence. The testimony about other sales of liquor by the wife in the presence of the husband Mas admissible, for the purpose, not of convicting them, but " to illustrate the character of the sale " to Spurlock, as made by the authority of the husband. Pearee t\ The State, 40 Ala., 720. If defendant feared that any other effect would be given by the jury to such testimony, he should have asked of the court a charge thus qualifying it. The first charge asked was properly refused, because it as- r t} I 4CS AMERICAN CRIMINAL REPORTS. Bunies that the witness dkl not bny tlie liquor, ns he lind testified he did. The second charge asked was also properly refused, for reasons hereinbefore indicated. There is no error in the record, and the judgment of the cir- cuit court is afHrnied. Latiiuoi'e vs. State. (jl Iiul., 102.) LiQUOB Selling : licspoiifibilifi/ of ciiiiiloi/er for sale of liquor hij nciraiit. An emiJoyer is not criminally rcfiponsiljle for an illogal sale of Ikiiior by liij servant, made without his knowlodfrt' or consent, and in violation of positive instmctions given by him in good faitli. "WoKDEX, J. Prosecution against appellant nnder the act of February 27th, 1S73, for selling, on the 14th of March, Is 74, intoxicating liquor to one llezin "NVinship, a person in the habit of getting intoxicated. Plea, not guilty; trial by the jury; con- viction; motion for a new trial overruled, and judgment. The appellant claims that the evidence was radically defective in res])ect to two material ]>oints, viz., the habits of Winsliip, and the per.son by whom the li(pior was sold to him. AVitli re- gard to "Winship, it nuiy be observed that tlie evidence slmws him to have been a substantial, industrious, well-to-do farmer, living some distance from town, of somewhat bibulous appetite, who, when in town, was occivsionally given to excess, but not to such a dci^ree as to nuiteriallv interfere with his tlirift, prudence or pros]M;rity. The evidence tliat lie was "in tlie habit of get- ting intoxicated," is not very clear or satisfactory; but as the appell.ant, as will Ije shown liereafter, treated liim as a ])erson in the habit of getting in tliat condition, ])erhaps more from tlie peculiar character of the times than from the actual liabit:- of the man, we pass this point in the case without further observa- tion. AVe come to the other question: AVas it shown that the aj)pel- lant sold the liquor to "Winshipi! The appellant, it a])peared, procured his permit January 31st, 1874. George M. P»arrlck, on whose affidavit the prosecution i LATHllOPE V. STATE. 469 .N ] 1 testified 'used, for f the cir. >i/ sciraiit. ii.|uor l)y liU )ii of iio.-ru(leii('e l>it of p't- l>nt as the ]>ers(iii ill from tlie I liahit:- of ;r oltserva- the ajjpel- inary 31st, rosecutioa was institvxted, was sworn as a witness, and testified in respect to the selling as follows: "Know Henry Lath rope; that's hiin; ]erst testified, that he had seen AVinship in the ap- pellant's saloon since he got his permit, drinking lemonade; that he asked for beer, but this was refused by Lathrope. Austin C. Funk testified, that he had known AVinship for twenty years, had seen him atLathrope's saloon trying to get liq- uor, but that the latter, since he received his permit, invariably refused to let him have it. AVinship testified as follows; " I have not bought any liquor of any kind of Henry Lathrope, 470 AMKinCAN CIII.MINAL RKI'OIITS. i a or ill his presence, since he liiis l»eeii M-Uiiii; ui.riiiit. l.atlirniH! refused me every time I tried to get imy; I have never gut any there, except what I gut that day of llandels; did imt see nnytliing of Latlirope in tlie huilding; ho was in)t tliere to my iinttwledge; lie might possibly have heea in tlie building', bnt if ho was, I did not see him." llandels testitied: " Henry Lath rope gave me instructions M'hen 1 commenced clerking for l»im, not to sell any liijnor of any kind to Koziu AVin ship, and frequently since, he has given me the same instnie- tions." The ap])ellant testitied on his original examinati(»n as foUuwi;; "I know Kezin Winshij). I got jny ])ermit on the Olst day of ilanmiry, l!S74; I refnsed to let him have any li(jUor immedi- ately afterwards on his lirst ap]»lication,and have always refiiM'd him since that time; I have not sold him a drop of anythinii: ex- cept lemonade since getting my ])ermit, and he has never got a drop of IJandels to my knowledge." The cross-examination develoiyed nothing material, except tliiit the appellant had given Kandels directions not to sell to Win- ship. An examination of this evidence satisfies ns that the convic- tion cannot and ought not to be sustained. It is apparent that the appellant was trying to keep within the law. lie refusal to sell to Winshi]), and gave orders to his clerk not to sell to him. Though it is questionable M'hether AVinship sluMild be regarded as a person in tlie habit of getting intoxicated, yet Lathroiic, thinking doubtless, that it would be ]»rudent and safe not to sell to him, acted accordingly. If llandels sold to him without tlio knowledge and against the instructions of Lathro])e, the latter is not res])onsible criminally for the act. (//.cifr;/ r. T/ic >S7(//( , 44 Ind. t>l, and the cases there cited; Wi'thlt r. jyic Sfarri(dv ])or- haps, exce])ted, is to show tliat the lic^uor was sold by Il;indels, without the knowledge or consent, and against the ex]>ress in- structions of Lathrope. The witness, l>arrick, does not ap])ear in a very enviable light — a hired spy and voluntary informer, he came before the court exhil»iting(pialities calculated to throw suspicion upon his testimony. On liis examination in chief, he fixed the time of the supposed ^ I-' itcriiiit. lavc never onsil ile for all unlawful sales made 1 ly his iigeut. The agent has no license to sell to any one, and it is only lawful for hna to il.) so in the nauK! and Ity the autliority of his principal, and the presuiuiition nuist he deemed conclusive that the agent oi .servant acts within the scop,) of his authority in making the side. Altliough it i« generally true thiit where the legislatmv adopt.- .sulistautially the statute cf another state, it is presun»ed to adopt also the coavtructien previ- ously given to it by tiie courts of that .state; yet the legislature will not be presumed to lu'.ve adopti'd such construction where such constnict.ion is in- consistent .vith tlie spirit and iiolicy of the laws of the state adopting tin; statute. Scorr, J. This was an iiulictiueiit found ugainst ]>laiiitiil' in error for unlawfully selling intoxicating liquors to a minor with- out the M'ritten order of his parents, guardiaji or family physi- cian, contrary to the form of the statute. The intlictment was certified to the county court, where a trial was had and the ac- cused found guilty, and upon an ajijwal taken to the circuit court, the judgment was athrmed. A motion was made in the county court to (jua.sh the indictment, for the reason it was not averred the acciP-ed knew Jay Porter, to whonj it is alleged the intoxi- cating liquors were sold, was then a minor. The decision of tlio court overruling the motion to quash the indictment is assigned for error. This ])rosecution was coniTnenced under the second section of the act of 1ST2, in relation to the sale of intoxicating liipiors, which provides, "it shall be unlawful for av.y ])erson or per.. The indictment is substantially in the language of the statute. This section makes it absolutely uidawful, notwithstanding the party may have a license obtained under the provisions of tho first section of the act, to sell intoxicating liquors to minors, un- less upon the written order of the parents, guardians or family physicians, and contains an absolute restriction upon selling such liquors to persons intoxicated, or who are in the habit of getting intoxicated. riiil wlicthcr Ai.KKU and il Ii'^rsniis, ly his iijf.'ut. n- Iinu tod.) nt'-uiiiptiou II thi; scojio imti;dly the utidii in't'vi- will not be ■i.iiiu is in- doptiii^' tlw iiintill' ill iu.>r witli- ily pliysi- iiiont was (1 tlio ilC- nit court, le county 10 intoxi- oii of tin; i iiosigiietl section of ^ li(juor>, ;• persons, iiors, un- or family liul)it of e statute, istaniliny; )ns of tlio inors, un- »r fiuuily llnij; sucii >f getting McCUTCHEON v. PEOPLE. 473 It is claimed the indictment is fatally defective, inasmuch as it fails to aver defendant knowingly sold lic^uors to a minor. It is insisted guilty knowledge is absolutely necessary to constitute the offense, and unless the i^clenter is averred, it cannot he proved on the tried. The principal .luthority relied on in support of this •|)roposition is the case of Miller v. The People, 3 Ohio St., 475. This section of our statute is^ no doubt, a substantial, if not a literal, copy of the Ohio statute on the same subject, and in con- struing it in JIillc/'''s Cane, the court said, " to convict for a vio- lation of the second section, it is necessary to aver in the infor- mation, and prove on the trial, that the seller knew the buyer to be a minor." Having adoj)tod the statute of a sister state, it is claimed the legislature adopted also the construction previously given it by the courts of that state. The rule on this subject is stated as we understand it in Streeter v. The People., G!) 111., 505. The doc- trine as there announced is, that where the legislature adopts substantially the statute of another state, it is presumed to adopt also the construction previously given it by the courts of that gtate, unless such construction is inconsistent with the spirit and policy of our laws. The construction given to similar language in the Ohio statute cannot but be regarded as being inconsistent with the spirit and policy of our laws, and therefore no presumption prevails that, in adopting it, the legislature also adopted the construction that had previously obtained in that state. By our laws, every in- dictment or accusation of the grand jury shall be deemed suffi- ciently correct which states the ofi'ense in the terms and lan- e'ua"e of the criminal code, or so plainly that the nature of the offense may be easily understood by the jury. II. S. 18-1:5, p. ISl. Since the adoption of this statute, it has uniformly been held it was not necessary to do more than state the accusation in the ]ani:;uage of the statute creating the offense. AVhen the intent is mentioned as ati element of the offense created by law, it ou'dit to be allesred; but when it is silent as to motive, no intent need be aver xl in die indictment. The case of KlU v. The People, 4 Scam, 509, was an indict- ment for "harboring and secreting" a slave. It was contended defendant, to be guilty of the offense, must Lave had knowledge of the fact that the person harbored or secreted J I ., 474 AMERICAN CRIMINAL REPORTS. ,:, \' was at the time a slave, and that this knowledge should he averred in the indictment and proved on tlie trial. It was held, however, in such an indictment it was not ncccs- pary to alle<»e a .n'ii'nttr. Tli? court commented on the case oi: Jiirney v. The Pcojtle, S Oliio, L*oO, njKin the authority of wliicli tlie case of 2[iUe)' v. Pci>2>le, aujji'a, was decided, ;ind exprcsplj disapproved of the doctrine there announced. The case of Cunmuhf v. The People^ 17 III., 15S, was an in- dictment for selling spirituous lic^uors in less quantities than one gallon. The general averment of an illegal sale was iicld sufiicient, the court saving these ijreat niceties and strictness in pleadings sliould only he countenanced when it is apparent de- fendant may he surprised on the trial or nnahle to meet tlie charge, and l)€yond this, particularity of specification might fin-- nish a ]neans of evading the law rather than defending ag:iiii>t accusation. To the same effect is Morton v. 27ie J'e'>jJr, 47 111., 40S. In view of onr statute, which makes it sufiicient to set forih the offense in the indictment or informaticui in the language of the act creating it, or so ])lainly that the nature of the accusation can he rea con- strued hy former decisions of this court. The latter is the more reasonahle ])resumption, and, we think, should he adopted, as being more c(»nsistent with the spirit and policy of our laws. Inde))endently of the (piestion wliether it is necessary to allege a scienter in the indictment, it is insisted the act of selling in- toxicating liipiors to a minor is not itself made punisliahle hy the statute unless the seller knew at the time the hnyer was a minor. AVe caimot concur in this view of the law. The liceuf-e procured under the first section of the act confers no authority McCUTCIIEOX r. PEOPLE. 475 l>e avciTcd not iieecs- ilit) case ot y of wl I it'll t-.\pi'css]y vas an in- titics than wa.s liflil rictness in parent (K'- nu'ct tlio nup^d fnr- 11^' aii'ainst ) set forlli ini,niai;c (if accusatinii 'tinn given slatiire. in to a])t a in eoiillict ii,^li a lon^' •s repeileil 1 been dis- >f the law •stent with il tliat the ^v.s a.-^ emi- i the more Inpted, as • laws. y to alle:,'e 'ellini,'' in- sliahle liy lyer was a lie lieenf-e antJKjrity on the licensee to sell iutoxieatino- liquors to a minor, except upon one condition, viz.: he shall have the written order of his par- ents, guardian or family physician, lie is absolutely ])rohibited, by the same section, from selling to a person intc/xicated, or who is in the habit of getting intoxicated, and his license will attbrd him no ju-oteetion. The law imposes npon the licensed seller the duty to see that the j)arty to whom ho sells is authorized to buy, and if he makes a sale without this knowledge, he docs it at Ills peril. This is the clear meaning of the law, and any other construction would render it exceedingly difiicult, if at all pos- sible, ever to procure a conviction for u violation of this clause of file statute. This construction imposes no hardship upon the licensed seller. If he does not know the i)arty who seeks to buy intoxicating li(piors at his counter is legally competent to do so, he must refuse to make the sale. It is made unlawful, either with or without a license, to sell to a certain class of persons, and to another class except under certain conditions; and if he vio- lates either clause of the statute, he must sutter the penalties imposed for its violation. It is no answer to this view to say the licensee may sometimes 1)C imposed npon and made to suffer the penalties of the law, when he had no intention to violate its provisions. This is a risk incident to the business he has undertaken to conduct, and, as he receives the gains connected therewith, he must assume also wi'h it all the hazards. Our laws make it a crime for a man to have carnal intercourse with a female iinder a certain age, either with or without her consent. It would shock our sense of justice to hold a party not g-iilty because he did not know she was within that age prescribed by the statute, and therefore incapable of giving consent. The law makes the act a crime, and infers the guilty intent from the act itself. Tlie case of 7»(.' Conniuuniudlth r. Juiiino/h^, 09 Mass., fi, was a prosecution against a kee])er of a billiard room, for admitting a minor thereto without the consent of the parent or guardian. It was held it was not needful to aver or prove guilty intent of de- fendant, and that he admitted such persons to his room at his peril. In [Jlr'K-h r. Coiiimouii\(/h/i, (5 Bush (Ky.), 400, under in- dictment for selling li'us a prosecution for sel- ling liquors to a common drunkard, and to sustain the ])rosecution, it was declared not to be necessary to prove defendant knew the person to whom the liquors had been sold was a comniun drunkard. The evidence shows conclusively that Jay Porter, at the time lie purchased intoxicating liquors at the counter of defendant, was a minor, and that he had no written order from either of his parents, guardian or family physician. Whether appellant knew he was a minoi*, in the view we have taken of the law, is wholly immaterial. It was his business to know whether lie could lawfully sell to him. We do not deem it a material in- quiry \\hether the sale of the liy one, and it is only lawful for him to do so in the name and by the authority of his principal, and the presumption must be deemed conclusive, that the agent or servant acted within tlio scojie of his authority in making the sale. The instructions given at the trial are not so variant from the principles announced in this opinion as to have misled the jury. The fourth instruction may have been wrung in its jdiraseology, but it is not perceived how it could have worked any injury or prejndice to plaintilf in error. .^o error appearing that could aft'ect the merits of the cause, the judgment is affirmed. Jaihjvient ajfirtiud. Mr. Justice Craig, having been counsel for the defendant in the court below, took no part in the consideration of this case. Mr. Justice Walkku and Mr. Justice JMoAi.listkk, dissenting: We are of opinion that while it is not necessary to aver guilty knowledge in the indictment, under our statutory rule that an indictment is sullicient which charges a statutory oU'ense in the language of the statute, it is nevertheless necessary to prove 8uch guilty knowledge on the trial. The statute is but a copy IM: tiiient for use under r iliil iiut )n fi)r sul- Ltseciition, knew the coiniuuu the time efeiuliuit, either of appelhmt lie huv, is h ether lie iteriiil iu- i uuulc liy •iucipiil is 1)le to the pll to iiny no iiiul by iimst he •itliiii tlio from tlio the jury. "iiseoloiiy, injury or ;lie cause, ajfiriiitd. iiidiuit in is case, ssentini,': •er 1,'uilty e tluit an ise in the to prove it a copy BALL V. STATE. 477 of the Ohio statute, whicli the courts of that state had, long an- terior to its adoption here, given such a construction to as wo contend for. The presuni])tion is, that the legislature adopted it with the construction so given, and intended that the essential element of guilty knowledge or intent, which is the essence of every crime, should enter into that here defined. Ball m. Statk. (50 Ind., 595.) LiQUon Sellino: Good faith in selling liquor to minors. A druggist selling liquor to a minor on a physician's prescription in good faith, that it is to be usi.'d for medicinal puii)Oses, is guilty of no otleuae. Ho is as much shielded 1)y the spirit of the act as if he were exempted from tlie pen- alty by expix'ss words. Biddlt:, C. J. Prosecution, hy affidavit and information, against tire appellant, for selling intoxicating liquor to Albert G. XaA'lor, a minor. A motion to quash the proceedings was properly overrultKl, and needs no further nf>tice. The ai)pellant pleaded not guilty, was tried by a jury, convicted and lined. The evidence and instructions are properly before us, and errors regularly iva.signed questioning their validity. AJhert G. Niojlor testiiied: " My name is Albert G. Naylor; am going to school at AV^avelantl; live, when at home, at Terre Haute; 1 got liquor from the defendant which was intoxicating; got it for medicinal purposes; the liquor I got was called 'War- ner's English giu,' i)ut u]) in sealed bottles; I got tlie liquor on the 2d day of May, 1S73, took it to my room at uiy boarding house, and got intoxicated on it on the 3d of May; I told the defendant, when I first went to him, I wanted it as a medicine; he refused to let me have it; I then went to Dr. Steele, after seeing him; I took a prescrij)tion from tlie doctor to Mr. Ball (defendant); on the ])rescription, I got the gin; I am sixteen years old." On behalf of the defense, Dr. A. F. Steele testified: " I am a physician engaged in a general i)ractice; have been practicing 478 AMKRICAN CRIMINAL REPORTS. !<'<.■■ mm ■M I i sixteen years ut Wivveland; I made no examiimtidu of Xaylor, but made the i)rescri[)tioii on the statement lie made of liis con- dition, and what he had been using for the disease before, at Terre Haute; the c:in was a remedial and ]iroi)or medicine for the treatment of the di.sease that he represented to me he was laboring under." (Prescription sliown him.) '* I gave this pre- ecriptiim to young ]S'aylor." The defendant, Zcphaniah 21. Bull, testified: (Here the pro. scription was shown and read to the jury: " ^[ay I. 1^7:5. li. p]nglish gin, one bottle, for A. (t. Xaylor. Steele.") '" The pre- scription was presented to me by j'oung Mr. Naylor; he came complaining of being siek, and wanted the g i, and T told him I could not sell it to him, and refused to let him have it; he went away, and in two or three hours aftei-wai'ds ciinie back with the doctor's prescription; I then let him have a buttle of gin; it is called ' AV^arner's English gin,' and comes in bottles sealed u]i, with paper covers; this gin is an intoxiciting liquor; T regarded tlie prescription of Dr. Steele as a hona fidi' ])reserii)tioii, and sold the ffin to vounur)((i-^o than for medicinal purposes by such minor. And if the minor afterwards used it as a beverage you should fitid the man ir'iiltv." The main rule in construing a statute is to give rational and practical efiec^t to the intejition of the law making power. All otlier rules fall within this fixed principle of jurisprudence. A clause in a statute which is repugnant to the general act, and cannot be construed in harmony with it, must be held inoperat- ive; so, in construing a statute, all effects which are unnatural, absurd or unjust, must be lield as implied exceptions, the same as if they were expressed in words. Tims, the law menti(»ned by Puft'endorf, which forbade a layman to " lay hands on a priest," was held to extend only to him who had hurt a priest tlio pro. 1'lie prc- BALL c. STATE. 479 ultli a weapon; and tlio Uulugiiian law, also from Pi>.fit'iKU»rf, M-hich enacted that "■ whoever drew blood in the street should be piiiiLshed with the ntinost severity,'' was held not to extend to the surgeon who opene, on which this prosecution rests, to pro- tect minors from the seductions of the bowl, and the indiscreet use of intoxicating drinks; and although, in its terms, the act makes no exceptions in favor of druggists or physicians in sell- ing and administering intoxicating liquors when necessary for medical uses, yet it must not be held so inexorable as to override arid destroy other rights, and prohibit the use of spirits for legiti- mate and necessary purposes, which are e(jually under the pro- tection of the law. The instruction given to the jury by the court in this case would tend to prevent parents or employers fntm sending minors with ])rescriptions to druggists for medi- cines which might happen to contain intoxicating liquor; it Mould embarrass physicians in the administration of medicinal remedies, impose im])racticable, if not impossible, duties on druggists, and often endanger the lives of patients. We cannot su])pose that the legislature had any such intention in the eiuict- iiieiit of the law; and we think that any person who sells intox- icating liquor, on a proper occasion, in good faith and with due caution, for medical pur[)oses oidy, is as much shielded by the spirit of the act as if he were exempted from the pemilty by ex- press words. In this view we are fully supj^orted by our own authorities, as well as by those of other states. Donnell v. The /Sfifti', 2 Tnd., G58; 27ioi/M.s.wii v. TJie State, 15 id., i-tO; Ilaher V. 'The State, lO id., 457; and Jut month of an in the of Freiioli Durham, ; that Dr. to let the The wit- ilf pint of at French tial medi- used, and Heine, and 1 spirit of . has beuii i(;ial deter- lis eontlict law is the Iso stop. ir statute? tig in view lial verdict ise for the urt agaai, CD sick lady, 8, who are uch as the STATE f. WRAY. 4m physician was willing to administer as a medicine, wa^ not to bo obtained elsewhere than at the defendants' drug stoic The doctor himself goes to the defendants and directs them to let the witness have the brandy as a medicine for his wife. And the further fact is found, which, perhaps, might have been assumed without the finding, that French brandy is an essential medicine, frequently prescribed by physicians and often \ised; and the farther and very important fact is established, that in this case it was bought in good fai ,n as a medicine, and was used as such. After this verdict, wc cannot doubt that the defendants acted in good faith and with due caution in the sale which is alleged to he a violation of law. In favor of defendants, criminal statutes are both contracted and expanded. 1 Bish. Cr. L.,par. 201. Now unless this sale comes within the mischief whicli the statute was intended to suppress, the defendants are not guilty; for it is a principle of the com- mon law, that no one shall suil'er criminally for an act in which his mind does not concur. The familiar instance given by lilack- stoiie illustrates our case better than I can do by argument. The I'olognian law enacted " that whoever drew blood in the street, should be punished with the utmost severity.'' A person fell down in the street with a fit, and a surgeon opened a vein and drew blood in the street. Here was a clear violation of the letter of the law, and yet from that day to this, it has never been con- sidered a violation of the spirit of the law. Perhaps it will give us a clearer view of the case if we put the druggist out of the (piestion, and '.ujipose that the physician himself, in the exercise of his professional skill and judgment, had furnished the liquor in good faith as a medicine. Can it be pretended that he would be any more guilty of a violation of our statute, than the sur- geon was guilty of a violation of the Bolognian law { Wo think not. But we would not have it understood that ])hysicians and druggists are to be protected in an abuse of the privilege. They are not only prohibited from selling licjuor in the ordinary course of business, but also from administering it as a medicine unless it be done in good faith, and after the exorcise of due caution as to its necessity as a medicine. The sale of liquor without a license, in quantities less than a quart, is prima facie unlawful, and it is incumbent upon one who does so sell, to show that it was done ui;der circumstances Vol. I.- 31 4S2 amp:rican criminal rei'okts. which render it hvvvfnl. In this case wo think such circuinstances have been shown, and we concur in the judgment of his Honor, that tlie defendants are not guilty. Per Curiam: JuJf/mcnt ajjinacd. Marshall vs. State. (49 Ala., 21.) LiQUon SEiJiiNo: Sale to minor — Barkcper. A barkopppr is within the inoaninff of a statute iirohibitiny any peraon who keeps liquor from selling it to niinci-s, whether ho is osvnier or merely an em- ployee. On a prosecution for selling liquor to a minor, it is a pood defense that the de- fendant was misled and imposed on, and that he honestly believed the minor to be over aye. But the defendant nmst prove this Iwyond a reu.sonul)lu doubt. Saffold, J. The ap])ellant was convicted under an indictment for selling liquor to a minor. A harkceper, whose husiness is to sell fermented, vinous, or s])irituous liquors, is within the meaning of R. C, § 3019, which prohibits any person who keeps these liquors from selling them to minors, etc., whether he owns the saloon or the liquors, or is nierely employed to sell them. The intention of the accused is an essential ingredient in this offense. But, in most cases, the fact is conclusive evidence of the intention. AVhen the facts which constitute the offense are proved, the Inirden is thrown upon the defendant, to show that lie was imposed on. In this instance, he was allowed to prove that the minor was a mature looking person, whose api)cari\nce was calculated to produce the belief that he had attained his ma- jority. But the court properly refused to let him ask the wit- ness whether he would not take him to be over twenty-one years old. lie would not liave liked an answer against him, or to have had a favorable answer offset by the o])inion of an adverse witness. Without considering separately the several charges given and refused, it is sufficient to say the court erred in instructing the jury that the fact of minority was conclusive of the intention of the defendant. In such case, the burden of proof is on the dc- cunistiinces his Honor, EISENJ[.\N r. STATE. 4S3 fentlivnt, and lio must pro\x' his goofl intention beyond a reason- alile doubt. Tlie jury nuisl believe tbat he was honestly and truly milled or imposed on. Arithout this, the law would be of little avail for the protection <.i the very youth for whom it was intended, to wit, those ap|in»achin;; nearly their majority. The judgment is reversed, and the cause remanded. ly 1101-Hoii who moivly an cm- so tliat the ilo- !veil tho minor I a roasonuhlu indictment 1, vinous, or 3019, which icllinj,' them itpiors, or is lient in this evidence of ; often se are o show that 'ed to jirove appearance lied his ma- Jisk the wit- ;y-one years I, or to have Tse witness. 3 given and ;ructing the intention of 3 on the dc- ElSENMAN vs. StATK. (49 Ind., 511.) Lujuoii Sellino: ScUliit/ liqimr to be (li'iiiil- on preinlses — Eni/>lon, In ii iirosecution for soiling li(inor to bo drnnk on tho pi-onu«on, it i^ not neces- sary to rtlloffo in tho complaint, or to provt! on tho trial, that tin; lienor was ilnuik on the promises or anywiioro. Tlie I'act that dofondiuit told porsons to wliom ho isold lirinor that thfy must not drink it on his promises is of no importance, if, under the circumstances, ho nnist have known tliat they would th'ink it on his premises, and tlie evi- done in this case is held sufficient to justify the conclusion that dt'fondant was trjing to evade tlie law. DowxKv, J. Prosecution against the appellant under the act of February 27, 187", for selling intoxicating liipior to one Carter Loyd, t(j be draidc in and upon the premises where suld, without a jtormit, commenced before a justice of the peace. There was a conviction before the justice of the peace, and an appeal by the defendant to the circuit court. The prosecution was upon an affidavit, a motion to qnasli Avhich was made in the circuit court, and overruled. In the circuit court, the cause was tried by the court, and the defendant was again found guilty. A new trial was asked by the defendant, on the grounds: 1. That the finding of the court was contrary to law; and, 2. It was contrary to the evidence. This motion was overruled, and sentence was pronounced against the defendant, lie has assigned for error here: 1. Overruling his motion to quash the affidavit. 2. Refusing to grant a new trial; and, 3. Rendering the final judgment against the defendant. The objection urged against the affidavit is, that it does not al- I 4S4 AMKUICAN CRIMINAL RKI'itUTS. It'^o tlmt the li(|Uor was drmikon tlioju'einirto-* where it \\i\>i Hold, The ])r()hll)ition is aj^iiinst selling tlie iiitoxic.iitiiig liriiutr "to Ik- drunk in, upon," etc., without n i)eniiit. Sec. 1 of tlie act. It Ih not nece8nary to the eonipletion (»f tlie otlensie, that the liipior hIiuII he drunk on the ]>reini[«ei*, or that it shall he (hMink any- where. The ofiense cousints in selling it to he drunk on the preniii-es, without the reijuired j)erniit. The allidavit ullcgcs a eale of thelitjuor to ho drunk on the ])rciuii*eri, without a permit, and is, therefore, Kulheient. Under the pecond assignment of error it is inpistiMl, that the evidence does not show that the li(pu>r was sold to he di'uiik en the ]>renuses where sold. "We will examine the evidence and sou what it does ehow. The li<]^uor charged to have heen sold was beei'. Carter Loyd testified as follows: "I never bought any li.|ii(ir of defendant — no wine, nor heer, nor whisky," etc. William II. Isgrigg: "I saw Carter Loyd buy hNpior of dc- fendant, some two or three months ago, in Decatur countv. In- diana; it was beer; beer is intoxicating; it made me dniidv on that occasion; he drank the liquor inside the fence in the bai'l: lot of the defendant's ]>remises; about one-half of the back lot U fenced oft' to itself, and the beer was drank in the part of the ]..t farthest back from the saloon; I saw the iiipior paid for, but do not know ht)W much; C'arter Loyd, Jesse West and I were to- gether; Loyd bought the lifjuor of defendant, and we all draidc it in defendant's back vard; the beer was taken out into the back yard, and the vessel returned; I took the glasses out of the saloon and drank out of them; I was at the back door when the beer was purchased by Loyd; there was nothing said about borrowing the (puu't cup and glasses; defendant Eisenman told \is to go oil' the premises, and we said we would, but did not; I have seen other persons drinking in that lot where we drank; there is a small, low fence at the back ])art of the lot; we (h-ank about eighty feet from the saloon, and in sight of it; there is a high fence that conceals the place; we took the glasses back, and gave them and the quart cup to the defendant." Kathan Withers: " I have seen persons drinking in defend- ant's back lot several times, in the same jdiice spoken of by AVil- liam II. Isgrigg; I have seen them come back from the place, with empty be'^i glasses, inclosed with a fence six feet high, and t Wivs sold. nor " tn 1,(. 111! act. It . till' li'juor (Iniiik imy- link (111 tliu It uilt'L^cs il t il iiennit, 1, tliiit the e drunk cii ICC and .-^ou LMi Pold was any liijuor i|iinr of do- coiintv. In- e tlrniik on in till! back .^ back lot i^ •t of the lot for, l)nt do [ I M-ori; to. ,'0 all ilraiik itu tilt; back f the f^alooa en the beer ; borrowing' us to i^u otl: I have seen ; there is ii !rank about •e is a liiu'li k, iind gave in (lefend- of by Wil- 1 the place, t liin'h, anil KISKNMAN c. STATE. m next to tlie livery stiilde; this iduee Ims been there several years; tliii^ place iw about one himdred feet back of the miloon." Janies T. (t illaiii: '• Saw defendant Hell a ({uart of beer to two men, in a (luart cup, and furnidi them with /^lasses and the vea- scl, but t(dd them to ^o oil' the j)reini.se8 to drink it." The defendant testified in his own behalf a^ follows: "I do not recidlect of sellin<^ beer to Loyd, have no recolleetion about it; it is my universal eustoni to tell every man I sell to to take it oil' my i)remiBes; 1 never permitted any one to drink on my lot, and never knew that Carter Loyd and I^^gJ■i<5g drank there; I have employed a man busy days to see that none drank on my premises; when 1 furnished the vessels and the beer and glasses, I generally tell them to go oil* my premises, most generally fol- lowed them to the door." Some parts of this evidence tend to show that the defendant did not sell the liquor to be drunk on his premises, and other parts tend the other way. Tlio statements of the defendant, made to purchasers, that they must not drink on his premises, are in iiis favor. ]>ut the fact that he had a place in the rear of his saloon where customers could drink under the protection of a high fence, and where, we think, he must liave known they were in the habit of drinking; that lie did not deliver the liquor to the j)urchaser8 in their own vessels to be taken away, but al- lowed them to take it out into his lot in his vessels, and use his glasses in drinking it, are circumstances from which we think the court was justilied in linding that he sold the liquor to be drunk on his premises, notwithstanding his formal request that that should not be done. The place where the liquor w^as drunk was in view of the saloon; the defendant knew that the liquor was taken out at the rear of his saloon, in his vessels, and that the vessels were returned to him empty. This was done repeat- edly. On this point we ought not to disturb the judgment of the circuit court. It is claimed, also, that the evidence does not show, beyond a reasonable doubt, a sale of liquor. This was a question for the jury. The evidence was conHicting. It is not for us to say Avhich of the witnesses the jury ought to have believed, and which disbelieved. Isgrigg swears to a sale. It is also suggested that the liquor sold is not shown by the evidence to have been intoxicating liquor, within the rule of this ', i i i ^J^ 486 AMERICAN CRIMIXAL REPORTS. court, as laid down in Khiix v. The State, 43 Ind., i^:}. Tn tlii^j case, one of the witnesses wlio drank of the li(|Uor testitied tliat it wan beer, and that it made him ih'unk. "We think tliis tO;t, in connection witli tlie opinion of tlie witness, shouhl be ivgarded as settling the question. The third assiginnent of error presents no question for decision. The judgment is ntHrnied, with costs. !' i Effixgku vs. State. UT liul., 2:)o.) Liquor Sellincj: ricadlmj. A eOnipliiinf for selling lifiuor on Sunday, whii.-h alleyus tlio siilo to have lioon "o;( onibout the '2d day of Novuniber, 1873, the Miid day Ix'inj;" .Sunday,'' is bad on a motion to quas-li, time being of tlie e.s.sence of the oll'en^e. WoKDKN, C. J. Prosecution for selling liquor on Sunday. Conviction and judgment, over motions to quash the affidavit and in arrest of judgment. The affidavit on which the prosecu- tit)n was based is as follows: "State of Indiana, Jcii'erson county — ss: "William Junes swears that on or about the 2d day of November, 1S73, in said county, John Effinger, as affiant verily believes, did uidawfuUy fell intoxicating li(piors to (Jeorge Heed, fcr ten cents, the said day beinic Sundav, and the .said John Effiuicer havinir then and there a ])ermit under the then existing laws of the state of Indi- ana to sell intoxicating liquors." Two objections arc urged to the aflidavit; first, that it is not sworn to positively, but oidy an the affiant believes; and second, that the time of the otlensc is not sufficiently stated. "We shall ])ass over the iirst t»bjection, as the second is fatal. Time, here, is an indispensable ingredient of the ott'ense, and where such is the case it must be accurately stated. Clarl' v. The State, U Ind., 4.3(5; The State v. Lan,I, 42 id., 311. The affidavit alleges that the .sale was made on or about the 2d day of Novendicr, 1873, the said day being Sunday. "What day is alleged to have been Sunday? Clearly the 2d of Novend)or, 1573, as no other day bad been meutioued. Uut the sale is not BROWN V. STATE. 4S7 Tn this >tilie«l that ^ tliis to.t, JL' )vn;ar(lecl or presents alleged to have been made on tliat day, but only on or about that (lav. The sale may have been made on some other day about that time. The affidavit states, in substance, that the 2d day of November, 1873, was Sunday, and that on or about that day the defendant sold the liquor. This is clearly insufficient. The case cannot be distinguished from that of The State v. Land, s(ij>i'a. The court below erred in overruling the motion to quash the atHdavit. The judgment below is reversed, and the cause remanded for further proceedings in accordance with this opinion. ^1 to liavi' 1)0011 11^- .^muliiy,"' iH'oiisc. n Sunday, le affidavit 10 proaccu- iaiu Jones '73, in .-laid uidawfully ts, the .'•aid r then and te of Indi- iit it is not nd second, id is fatal, iense, and Chifk V. 11. (»ut the L^l "What day S'ovend)er, sale is not Bkowx vs. State. (48 Ind., 38.) LiQUOB Selling: Variance. Under an indictniont for a sale of liijuor to A., proof of a sale to A. and B., jointly, will not justify a conviction. WoRDKN, J. This was an indictment of the defendant for re- tailing intoxicating li pior on Sunday. It charges that the de- fendant, on the Gtli day of September, 1874, that being the first (lay of the week, commonly called Sunday, at, etc., " did then and there unlawfully sell to one James Quiidan, for the sum and jirice of twenty cents, two drinks of whisky, the said whisky be- ing then and there intoxicating li(|Uor." There was a second count in the indictment, which, on motion iif the defendant, was (juashcd. The defendant pleaded not guilty, and upon trial, was con- victed, an(l judgment was rendered on the verdict, over a motion by defendant for a new trial. During the ])rogress of the case, the court made an order re- voking the defendant's permit to sell intoxicating liijuor. On the trial, there was evidence that James Quiidan and John Nolan went into the defeiulant's saloon on the day named, and drank some whisky, procured from the defendant, but whether it was sold or given to them was disputed. The court gave the jury the following instruction, which was excei)ted to by the de- fendant, viz.: n\ 4SS AMERICAN CRIMINAL REPORTS. I " If Qninlan and Nolfin went into the saloon of the defendant on tlie Sundiiy morning in qnestion, and called for whisky, in- tending to jmrchase it of the defeTidant, and the defendant set it, the whislvv, out to them in the regnlar course of his trade, in- tending to make a sale to them, and in pursuance t>f such mutu- al intention, he delivered the liquor to them, and they aceei)tc(l it and drank it. this would constitute a sale; and if the refusul of the defendant to take the money was an afterthought, and only indncetl from the fear of an otticer of the law who nniy have apjieared n]>on the scene, it woidd, nevertheless, be a sale, and defendant could collect the price of the liquor in an action at law.'- This charge, if it has any signilicance or ap])lication to the case, means that the facts eimmerated by the court would con- stitute such a sale as W()uld support the indictment and author- ize the conviction of the roof should have fixed upon the purchaser tiio habit of getting intoxicated at the time when the sale was made. Evidence of his habits within a reasonable time before sale would have been admissible, as tend- ing to show what his habit was at the time of the sale. There are other questions uuide, which, however, it is unnec- essary for us to decide. The judgment is reversed and the cause remanded, with in- structions to sustain the motion to quash the affidavit. Statk vs. Bidulk. (54 N. 11., ;579.) LiQUon Sellino: Question of fuct. VVhcthor alo or eider is an intoxioatint? liquor is a tiuostion of fatt, and not of law. Ladd, J. "Whether ale and cider are intoxicating li(p;ors, de- pends upon whether or not those beverages, being drank, pro- duce intoxication. That is, the question is as to the eflect those liquors produce upon the human system when taken into tlio stomach. In chemistry, two inorganic substances are brought together, and the result noted. This is called an exi)eriment. The result, which is nothing more than a manifestation of a law STATE V. BIDDLE. 491 '\ I of nature, under certain conditions, is a fact. By tlie careful and patient observation of a great number of e.\])erlinents of tliis sort, a great number of facts arc obtained. The wonderful fiirces that lie concealed in inanimate matter are thus broujrht to light, and with the discovery of each new fact the elements are brouglit more and more into subjection to the will of man, and turiiwl to his use. Courts, charged with administering the mu- ni(*ii»al law, do not generally undertake to determine these facts of science, notwithstanding they may be universal, and nuiy rest upon the laws of nature, which are at once universal and immu- table. Experts are brought in for that purpose, and the testi- ni(»ny oi exi)erts is addressed to the jury. So, in the science of medicine, a in'lori, the eft'ect of a given sub- ptiuice, when taken into the stomach, could hardly be foretold, I sujipose, by the simple exercise of reason. The knowledge of the physician, as well as the chemist, comes largely from experiment. The physician must know, not oidy the effect which inorganic pimples ])roduce, one upon another, but also what effect they may lie ex]iected to produce upon the organism of his patient. "Whether ale or cider produces intoxication, may be learned in the same way, that is, by experiment. Any person, who has seen and observed a number of such experiments, may, as a wit- ness, state the result of his observation to the jury. Any per- son \v\\o has performed the experiment himself nuiy also testify to the knowledge gained in that way; but the witness in both cases is doing nothiifg more than stating a fact. The question is, fundamentally, a question of fact, and there is no conceivable view in which anything else can be made of it. There are undoubtedly laws of nature, the existence and oper- ation of which courts, as well as other persons endowed with or- dinary intelligence, assume. Some of the laws of light, some of the laws of heat, some of the laws that govern falling bodies in their descent to the earth, some of the laws of hydraulics, are matters of such constant observation, experience and knowl- edge, that no one would think of requiring them to be proved. Such knowledge on the part of the jury is assumed, in the same way as it is assumed that they possess consciousness, memory and reason. Yet such common knowledge does not convert what is essentiallv matter of fact into matter of law. The moment we go beyond the range of common experience and common 492 AMERICAN CRIMINAL RfJPORTS. I I 'I j ;) 'M^ r IJ' ' 1.1 I i 11 m knowledujc in our investigation of any of the laws of natnre, we enter tlie domain of science; all the dift'erence is, tliat, while one set of facts is known and acted on by all men, the other may be known only to a few who have devoted much time and study to that particular subject. If it were known with ahsolute certainty that all fermented ale and cider invariably produce intoxication, it would still re- main a fact that they are intoxicating lieer by the ancient Britons and other Celtic nations is thus descrl])ed by Isodorus, and by Orosius, who was a disciple of St, Augus- tine: " The grain was steeped in water, and ma, I i f 1 crous that tliel)oolv8 should he ransacked foi' two or three thous- and years hack to ohtain evidence l)y wliich to determine tlie point, or tliat hearsay evidence of an experiment j)erfornied upon a jnonkey with a liquor somewhat re^enildinj^ ale should he sought out and considered, when direct evidence of the etlect of real ale upon a man must have heen easy of attaintmont, even iu New York. Of course, no such thing was in the mind of the learned judge who delivered this somewhat facetious opinion. The ohject of the discussion was to show that, hy the true con- struction of the statute, the sale of ale came within its prohih- ition. Still, it seems to me that the conclusion is nothing less than this: that hecanse ale, or a fermented licpior resemhling it has always and universally heen understood to lie intoxicating, that fact has, therefore, become incorporated into the municii»al law of the state, and to this conclusion I cannot agree. If tiio legislature had intended, absolutely, to prohibit the sale of ale, leaving no rpicstion as to its intoxicating qualities to be settled by anybody, it was easy for them to have said so in a single word. What they did was to prohibit tlio sale of all intoxicating liquors, leaving it to be determined, in someway, by the tribunal charged with administering the law, whether the ])articuhir case comes within the general terms of theprcdiibition. Where is the legal test with which the courts are to determine the (jnestioiij Suppose here are twenty different kinds of liquor, each contain- ing a different ])ercentage of alcohol, from one to twenty, what is the shape of the legal formula with which the court are to draw the line between that which is intoxicating and so witliiu the legislative prohibition? The truth is, the question is essen- tially one of fact, and I, for one, see no reason why a fact ^^o obvious or well known as to require little or no pntof shouUl he withdrawn from the inry and settled bvthc court, anv more than one less obvious, with res])ect to which the evidence may Ijc doubtful or conflicting. The terms of the ruling in the present case give s]»ecial prom- inence to the process of fermentation. Indeed, they seem to imply that the completion of that process is the criterion where- by to determine whether the liquor is intoxicating or not. In point of fact this may be so. Ihit it is difficult to sec how any- thing is thereby gained, unless it be first ascertained with cer- tainty that fermentation always produces intoxicating liquors. ,'* , '■' '' VS STATE V. BIDDLE. 495 roe thoiis- "lino the riKMl u])ou f^lH)uI(l l)e »' I'Ul'ct of t even in ik] of tlie <>l'inioii. true con- ■p proliib- tliini^; less 'UiMing it oxicatiiiir, ninnici]ial e. Iftlie lie (if ale, l»c settled a sin_:j:le :oxicatinir c tril)n?ml cular case lere is the (juestiiMi^ 1 contai!!- ntv, what irt are to tit) within ! is essen- .1 fact PC) *]ionl(l he noro tlian ! may l)o ial proin- seem to •n wliere- not. In how any- with cer- liquors. It is plain that if one fermented li(|nor is intoxicating and an- other not, we are no nearer a legal solution of the matter, when we are informed that the particular cider or ale in question is fermented than wo were hefore. The nltimate ([uestion, Is ale or cid-er intoxicating liquor? still remains unanswered. As to the effect of fermentation, we have the excellent authority of the learned chancellor, from whose opinion I have already quoted so much at length, lie says, "But the term, fermented beer, in the connection in which it was used before the justice, might well have been understood by Nevin as intended to cover a charge of selling some of the various kinds of beer which have long been in use in this country under the different names of spruce beer, 6])ring beer, ginger beer, molasses beer, etc. Each of these may very properly be termed fermented beer, as fermen- tation to a certain extent is necessary to lit the article for use. AVhat was denominated small or table beer in England was a different article from any of these, and was an excisable liquor under the general name of beer. For it differed from porter only in its strength, and being sold at a smaller price; it was for that reason charged with a lower rate of duty under the English stat- utes, Ihit the other kinds of beer to which I have alluded were never considered as strong lifpiors, or intoxicating beverages, cither here or in England, and therefore were not excisable arti- cles. They do, indeed, cuntain a certain amount t)f alcohol, as every liquid containing saccharine matter does, immediately after the vinous fermentation has commenced. But they have not been considered as strong drinks, or intoxicating beverages, either because it was supposed that the human stomach had not capacity to contain a suflicient quantity of those kinds of beer, if they were properly made, to unduly or injuriously excite the person who used them as a beverage, or for the reason that those who were in the habit of using them never got intoxicated by such use." In /State v. Adams, 51 N. II., 5CS, Smitu, J., states the scientific fact that alcohol may be obtained by distillation from fermented milk. Upon this authority it is safe enough to say that neither fer- mentation nor the presence of alcohol can be adopted as an ab- solute legal test to determine whether any liipiid is intoxicating or not, inasmuch as there are fermented liquors containing alco- hol, which, like milk, do not inebriate. I i'. I l| 490 AMERICAN CRIMINAL REPORTS. ; Our statute, by using the word sj^irituous, forbids the sale and kcejnng for sale of certain specified lii^uors, that is, such as are obtained by distillation. The generic term, intoxicating, also found in the statute, is of much broader signilication. It is true, the provision found in section 24 of the liquor law, to the ellcct that nothing in the act shall be construed to prevent the sale or keeping for sale of domestic wine or cider unmixed with spir- ituous liquor, except when sold to be drunk on or about the premises where sold, implies an understanding on the part of the legislature that cider might come within the general prohibition of the act; but they carefully refrained from mentioning that beverage by name, and thus left it with the large class of liquids, such as wine, ale, ])orter, beer, etc., known to contain more or less alcohol, prohibited or not, according to the fact of its intox- icating quality. AVc are of ojjinion that as to all liquors except those specially designated by the term " spirituous," before the act can bo ap- plied to them, it must be ascertained in a legal way that they come within the deiinition. This, as already more than once remarked, is clearly an unmixed question of fact, and we sec no ground upon which it can legally be determined, as matter uf law, by the court. We are therefore of opinion that the ruling was erroneous, and that the verdict 2Iust he set ats'ide. (State V. Long, 74 N. C, 121, is an authority to the same effect.) > 1- Li'i in Lathrope vs. State. (.JO Ind., 555.) Liquor Selling: Intoxicating liquor. Whether or not liiger hoer i.s intoxicating is a question of fact, and not of law. BiDDLE, C. J., dissentuig. Pettit, J. This was a prosecution under the act of February 27, 1873, for giving intoxicating liquors to a person who was in the habit of getting intoxicated. The only question in the case is, Was the evidence sufficient to sustain the conviction? All the evidence as to the kind or qual- ity of the liquor given or drank was this: Mrs. Woods testified: "Saw him, Maggart, drink beer; did not see any one give it to ' ■!*.'•" DIGGERSTAFF t-. CX)MMOXWEALTH. 491 le sulo and iicli as uro tiiiif, also It is true, the ellect lie sale or with spir- iiljout the )art of the rohibition "iiig that ->f lifiuids, I more or its iiito.x- ! specially 3au bo ap- that they than once wo see no matter of he rulinir t aside. i him. * * Latlirope called for it; eaid It was fresi' beer; can't remember what they called it; saw the ke^ in the case." Mrs. M. II. Frazior testiHed: "Know Wm. P. ;Mag<;art; it was on the 30th day of April ho was intoxicated; have seen him twice since then; he was in the saloon then; 1 saw him drinking' intoxicating liquors there; they were standing at the lower end of the counter; he, Henry Lathrope, said it was fresh beer; I said to Mrs. Wowls, ' there is a very drunk man drinking beer; ' he had beer in his hands when I saw him; Latliro])e said after- ward, it was some one else's treat; Mr. Handel was behind the bar; don't know what it was; have heard the same kind called lager beer: drawn from keg on cast end of counter; it was about the middle of the afternoon." Cross-examined : " They had the beer in their hands at the time when I saw them; there were three or four drinking at the time; don't remember any other lieer being set up; don't remember of hearing before we went in; dun't know who called it out; my best judgment is that it was beer; it is merely my impression that it was beer; never drank any myself." This docs not jirove that the beer was intoxicating licpior, and following the well considered case of Klarev. The State, A:^ Ind., 483, we hold that the evidence was not sufficient. The judgment is reversed, with instructions to sustain the mo- tion for a new trial. BinoLK, C. J. I dissent. The evidence, in my opinion, shows that the kind of lii^uor sold was " called lager beer." This, I think, was sufficient, uncontradicted, to authorize the finding as to the character of the lic^uor. That "lager beer" is intoxicating, is a fact which must be judicially known, without special ])roof. not of law. February 10 was in fficient to 1 or qual- testified: give it to BiGGEKSTAFF VS. CoMMONWEALTU. (11 Bush, Ky., 1G9.) Peiwury. Pcqury cannot be assigned on an oath administered by a judge of election who has not been himself sworn. Lindsay, J. This prosecution was based upon the 14th sec- tion of the 12tii article of chapter 32 of the revised statutes, Vol. 1.-32 4D8 AMKRICAN CRIMINAL RKPORTS. ■wliieli is ill these words: " Any person who shiill inukc uny wilfully fiilse statement under an oatli duly administered at uii ciection shall be deemed guilty of jierjury, and incur tlie ])eiialty for that prime." The indictment charges th.it the accused, on the 'JM oiialty aecusod, on isoii, fuLst'ly ' ii^'e, \vl;eii, lie time he lie rii,'lit to n Ijciiii,' al- eritr of t;ai(i luly admiii- einurer was .Mitenced to reverse tlie 111. lie acteil as ilstcred tho il corruptlv ike the oatli was ac'tii-'f, ctioii, with- to give the lie eviilence, s ajlu]^'e uf been swurii feiichiiit nut the poacc; t'd statutes lit elections requircil to IV the clerk V i the peace, pessary and he acted in »n j)rovides re entering ^ BIi.iGERSTAl'r r. COiLMONWHALTJI. 409 on the dutie? of his ofHoo. take the oath prescrihed by the con- stitution lieforc Bonie justice of the peace, or it may be adminis- tered by the Hheritr." If Willis assumed to act, without taking the oath, he was, at most, but an oftlcer ihf<.ufn. To what extent his acts would bo iijilu'ld, in order to protect and ])re8crve the rights of legal voters voting at the electi(»ns, in controversies between rival candidates for ollicc, we will not midertake in this case to determine. Tho (|Ucstion here is, whether AVillis was authorized by law to ad- min i^t('r the oath to the accused. If hu was not so authorized, It would seem to f(dlow that the judgment of the circuit court can not l)e sustained. Xo fiath taken before " those who take upon them to adminis- ter oaths of a public nature without legal authority can ever amount to perjury in the eye of the law, for they are of no man- ner of force." Rose. Crlm. Ev.,sec 074; 2 Iluss., 52J ; 1 Hawk. P. C, ch. 01), sec. 4 ; 3 Camp., 432. AVherc oaths are a;'//«^/y;<(' A, that the judge, magistrate or oiKcer liefore whom the oath was taken \\\\)i ly when an oath administered by j^uch an officer is nnide the foundation of a prosecution for perjury. From these conclusions it follows that the ijistruction imdoi' consideration should have been given. ^^ s v;e have no jxiwer tu reverse for an error of the circuit court, in overruling a demurrer for an indictment, we will not inquire as to the suffic'ency uf the indictment in this case. Nor do we deem it necessary to advert to other sujjposed errors to which our atttention was called in the argument. For the error in refusing to give the instruction heretofore set out in full, the judgmetit is reversed, and the cause remanded for further proceedings not inconsistent with this oiiinion. COMV.ONWKAI.TU VH. GkANT. (IIG Mass., 17.) Pehjuky: MdhridJil;/ of UstliHOiii/, A party not onlj' commits perjury liy swcariii;.;- falsi'ly and comiptly a> to tli'^ fact which is inmu'diatfly in issiu', hut also in sweariu),' falsely ami comiptiy a.s to materiul circumstances teiuliny to prove nr disprove such fact, and this without reference to the iiuestion wlietlier such fact does or does nut exi-t. It is as much i)erjury to cstalilish tlu> truth liy false testimnny as !•) niain- ttiin a falsehood hy such testimony, and the fact that the former may lead to a correct decision is immaterial. In Conimomvealth v. O'rtaif, which was a prosecution for per- jury, the facts were as follows: The resjtoiident Grant had pros- ecuted a woman named Linnell for larceny. She defeudeil uii the ground that she had been married to (Jrant, and was his wife. She testified that she had been married to him by a min- ister in I'rovidence, 11, I., and had afterwards lived with Cirant, and been introduced by him as his wife, and she ])roduced a cer- tificate of the marriiige which, however, the district attorney ad- COMMONWEALTH e. GRANT. 501 itliorizeil l^v I'ofuro liave make it the or. I'OS tllO ilfts iis valid and l)y 8iicli an i-jiiry. ctioii uinler lU) JloWtT tu a duiiiurror •oiu'v of the ry to advert vas called in orctofore set se reuiaiided )iniuM. njitly as fi) til- y 1111(1 nimi|itly ii fait, aii4 tliiri tliK's not i'.\i>t. ny iis to luaiii- ii'i" inavli'ad to ion for per- il liad piMs- lefeiided uii lul was Ilia 1 l»y a miii- vitli (iraiit, lucod a eer- ttornev ud- luitted on the trial, was a forj^ed document. Tliere was no direct cvielieved, ])eyond a reasonable doul)t, that the defend- ant in the suit before the justice of the i)eace, wilfully, corruptly and falsely testified that Camjjbell drove his wagon and team through defendant's inclosed iield, they should lind him guilty. The second instruction for the prosecution was, that the jury could not ac(p.!it from a mere possible doubt; but that it should be a reasonable doubt. The first instruction given for the defendant told the jury, that the evidence of the defendant in the suit before the justice of the peace was presumed to be true, and that the presum])tion must be removed by the evidence of two witnesses, or the evidence oi STATE V. HEED. 503 no\\-itiie>s,itis itional ciiviiiii- '.'iice to si.stiiiu itui-biiliuicc Ibt.' ce. 1st Ijo satifiiliil phiiu what is a srcer county on a triiil as i)l!ii)itiir, r swore that it'luscd lield. ulant's ojith r tostiiiioiiy iJefeiidajit k'gree, sup. evidence, ;i.s n testiinuuy by the dee- eliect, tliut the del'eiid- y, corru])tly J and teajii ini guilty, it tlio jury it it should jury, that stice of the ptioii mui^t ivideucu oi. one witness with such other corroborating circumstances as were necessary to overcome the presumption and establish his guilt. The fourth instruction which was asked by the defendant and refused by the court asserted the proposition that, before the jury could convict, it was necessary to establisli the falsity of the oath taken by him by the evidence of two witnesses, or by the evidence of one witness, with such other corroborating circum- stances as would be equal to a second witness. The above are the oidy instructions requiring any note, as the correctness of the ruling in the others cannot be disputed. The instruction in reference to a reasonable doubt is faulty and sub- ject to criticism. It should have been followed by a more pre- cise and accurate explanation of the terms, so as to have prevented niisapprehensions, as was done in the case of T/ie State v. JVues- Jcin, 25 ]\[o., Ill, and which has been universally followed since that time. The fourth instruction asked bv the defendant stated the law too broadly, and was properly refused. Says Greenleaf : " In proof of the crime of perjury also it was formerly held that two witnesses wore necessary, because otherwise there would be noth- ing more :han the oath of one man against another, upon which tlie jury could not safely convict." I3ut this strictness has long- since been relaxed; the true principle of the law being merely this, that the evidence must be something more than sufHcient to counterl)alance the oath of the prisoner and the legal presump- tion of his innocence. The oath of the o])posing witness, there- fore, will not avail, uidess it be corroborated by other independ- ent circumstances. I»ut it is not precisely accurate to say that these additioiuil circumstances must be tantamount to another witness. The same ell'ect being given to the oath of the prisoner as tliough it were the oath of a credible witness, the scale of evi- dence is exactly balanced, and the e(|uili])rium must be destroyed by material and inde]>endetit circumstances, before the ] tarty can be convicted. The additional evidence need not be such, as stand- ing by itself, would justify a conviction in a case where the tes- timony of a single witness would sutKce for that ])urpose; but it must be at least strongly corroltorative of the testimony of the accusing witness; or in the quaint but energetic language of Paukkk, C J., a "strong and clear evidence, and more numer- ous than the evidcce given for the defendant" (1 Greeul. Ev., )0-l AMERICAN CRIMINAL REPORTS. t< '>i' I ."t h 257). The instruction was an attempt to apply the ancient rule Avliich lias been modified and relaxed, and no lon<;er prevails in any of the courts. The first instruction which was given for the defendant, whilst mainly stating the law correctly was not as clear and ex- plicit as it should have been. It is true, as it was given for the defendant he cannot complain; but in cases of this kind, we examine the whole record to see whether justice has been done, and it will therefore become necessary to examine it in connec- tion with the first instruction given at the instance of the state. That instruction made no allusion to the character of the crime, nor to the peculiar amount of evidence retpiired. It was such an instruction as would luAebeen given in an ordinary case, and made it only necessary for the jury to be satisfied by the evi- dence <»f the defendant's guilt. The instructit>n was clearly and wholly bad, and should not have been given. It was to some ex- tent cured by the defendant's instruction, but not entirely so. There was an inconsistency as to the amomit of proof rerpiired; and we cannot tell what efiect it had upon the junjrs. "When we consider that the bad instruction was given ft»r the state, and that the state had the closing of the case, we can readily see how the defendant could have been injured. It cannot be said in this case that the instructions, even taken together, fairly presented the law. I thiidv therefore that the judgment should be reversed and the cause remanded; all the judges concur, except Judge Siii;k- AvooD, who is absent. IIkmuree vs. State. 02 Gil., 242.) Peiwuuy: ludktmcnt. Whero, in an indictment fur iicrjnry, it was iiUcged that the cleftimhint, dur- ing a judicial procoediny:, etc., had falsely sworn to certain statonu'nt--, and then ininicdiately followed an alleviation that certain of such statenii'nth were untrue, and tliere was no alle;ration that the statements, tlais alone denii'tl to Ijo true, had been material to the issue on trial, nor did they of thonisclvfs ajipear to have Lci-n material: Held, that the indictment wa^ dcnuu'rable, and should have been quiuihed. ncicnt rule prevails iu •lofeudaut, lar anil ex- •fiven for s kiiid, we )een done, in connec- tlic state. tli(! crime, \v;is sueli \' case, and y the evi- 'learly and ;o some e.\- ntiroly so. required; "When we state, and ily see how even taken rersed and idge SiiKU- tmlant, diir- tenii'iit.^, and 1 Stiltl'lUl'lltti :, llniH illillli' ilid tlu'y of ictiucut wad HEMBREE v. STATE. 605 (1 «4' CuiMixAL Law. Indictment. Perjury. Before Judge K-NKurr. MUtoii Superior Court. August Term, 1873. George Ilemhree, was placed on trial for the oft'ense of per- jury, upon the following indictment: Gkokoia — Milton county. •The grand jurors, selected, chosen and sworn for the county of ^[ilton, to wit: " In the name and behalf of the citizens of (Jeori'ia.chara'e and accuse (ieorge llemhree, of the ct)unty and state aforesaid, with the ofi'ense of jterjury. For that the said George llembree, in ^•A\i\ county, on the 23d day of August, 1871, wickedly and ma- licioutily intending to aggrieve one IMartha (ioen,,and put her, the said ^Nfartha Goen, to great expense, and to bring upon her, tlie said Martha (roen, great disgrace, and also to cause her, the said !^[artha (Joen, to snft'er the penalty of the law consequent upon a conviction of the otiense of living with one William ^lartin, a male ])erson of color, in a state of fornication, a bill of indictment for which offense being then and there submitted to the grand jury of said county, said superior court being then and there in session, charging said ]\[artha Goen and William Martin with living together in a state of fornication, said Alartha (loen being then and there a white female; the said George llembree, on the day and year aforesaid, in the county aforesaid, and in })ropei person before said grand jury, one Marian J. Seall, then and there being foreman of said grand jury, and iu due form of law, was sworn and took his corporal oath u])on the liible concerning the truth of the testimony he should then and there give said grand jury, as to the truth of the charge in said bill of indictment then and there contained, said foreman of said grand jury then and there being legal and competent authority to administer said oath to the said George Ifembree for said purposes. The said (leorgc IIend)ree being then and there so sworn, as aforesaid, then and there upon his oath aforesaid, be- fore the said granrii to was [Inder onr tlie words tliiit tlicy tlio whole i'ords spo- aterial, on inont, for n-ial, wirh ion. native the f'Mtivin'' it is true. !iri,'ed did III she is jn, but it 3re inate- •c are yet limits, especially in criminal cases, beyond which it is not safo to go, and we think it mnst always be alleged that the words sworn were material, or they must in the nature of them, show their own materiality. That U one of the statutory in<;redients of the crime, and it can no more be dispensed with than the al- legation that the words were false. Jxuhjment reversed. Pkoplk vs. IIunckeleb. (48 Cal., ajl.) PiiACTiCE : Former jeopanhj. Whore a person has once been put on tiial for nianshiugliter, before a, jury im- puneled and sworn, ami \ itne.s.ses have bet;n examined, ho hiis been put in jeopardy, and Lf the judye, wthout the consent of the resiwndent, dLs- charp! tlie jury v-itliout submitting the case to them, this is a bar to any furtlier prosecution for tlie same act, and he cannot afterwai'ds be tried ou an uuUctment for mm'der for the same killing. Ai'i'KAr. from the District Court, twelfth judicial district, City and County of Sun Francisco. The defendant was indicted on the 10th day of February, 1ST4, for murder, alleged to have been committed by killing Catharine Erni, at the city and county of San Francisco, on the ITth day of September, 1873. The defendant, when arraigned, pleaded a former acquittal, former jeopardy, and not guilty. On the trial it was shown that on the 15th day of December, 1873, the defendant was arraigned in .said court on an indictment charging him with the crime of man- slaughter, committed by having killed the said Catharine, and ])leaded not guilty. That, on the — day of January, 1871:, he was ]>laced upon his trial for manslaughter, before a jury duly impan- eled and sworn, and that, after the witnesses for the prosecution and defense had been sworn and examined, the court, without the consent of the defendant, on motion of the district attorney, dis- charged the jury, and remanded the defendant to the custody of the sherifl", so that an indictment might be found for a higher crime. The indictment on wliich the judgment was rendered, from which this appeal was taken, was afterwards found. On the second trial, the defendant asked the court to instruct tlie I) N 508 AMERICAN CRIMINAL REPORTS. J f 1 I-*-' ^ jnry that if they found that the defeiKhint hail been formerly in- dieted for manslaughter committed by killing Catharine Krni, and had been placed on his trial before a jtiry duly imjianeltd and sworn, and that the court had discharged the jury without a verdict, without the consent of the defendant, in order that an indictment miifht be found against him for a higher crime, that they should accjuit the defendant. The court refused to give tJio instruction. Section one tluuisand one hundred and t\velve of the Penal Code reads: " If it appears by the testimony that the facts proved constitute an otl'enseof a higher nature than that charged in the indictment, the court may direct the jury to be discliargeil, and all ]>roceedings on the indictment to be 8uspen-hatevcr statute may exist on the subject. 1 Bish. Cr. Law, 1200, 5th ed. Once in actual jeojjardy, a defendant be- comes entitled to a verdict which may constitute a bar to a new jM'osecution; and he cannot be deprived of his right to a verdict by nollt }}roHero/t. ffrliiry on tlio '»• jt'opaiily. larcoiiv ntliout Iiiti so was laid . lie was ul i)lea(le(l The court •^'laiy. A and otlier refiist'(l l)y 8 1 ho error ^o consider plea of fur- ?cny fjjood, riiis is not o, and was T/u) State. jeopardy ; awn with- n<^ a nolle .'quittal of tte, 3 Ga., 3ntion for c offense, o l)e tried i diftereiit ; this can- ; liolcrts and Coj)enliii(jeii v. The State, 14 Ga., 8, 11, 12; Coj)en/ia- Vie., ch. 29, sec. 51, cannot be convicted of an assault, and hi.s acquittal of the felony is therefore no bar to a subsequent indictment for the assiult. Peu Wii.sox, J. In this case there could have been no conviction for the as- .«ault, because the evidence upon the trial for nmrder showed that it did not conduce to the death. Case reserved from the court of general sessions of the peace for the county of York, by John Boyd, Eeq., junior judge of the county court. The defendant was indicted for an assault on John Currie, oc- casioning actual bodily harm. The defendant pleaded that at the assizes, liolden at Toronto, in and for the county of York, he was " lawfully acquitted of the said ofFense charged in the indictment." The crown traversed the plea, and the prisoner joined issue. At the trial before the learned county judge, the record of an acquittal upon an inuictment for the charge of murder was pro- duced. The indictment charged that one Lounsborough and the de- fendant "did feloniously, wilfully and of their malice afore- thouffbt, kill and murder one Thomas Currie." Nothing was 013 AMERICAN CIinriNAL REroilTS. ii»n 3r innde, or ik'sired to lie mndo, of the difrerenco in tlio name he- tween Jolin (/urric in the assault indictment and Thomas in tho murder indictment. Tlie following' evidence was also given: Jo/i/i K. Kinnahj said: " I was a witness at the trial at tlic last assizes i'(»r the murder of Currie. The prisoner is the indi- vidual, Smith. 1 was one of the medical men who held w ixtxt mortem examination on the body of Currie. There was an ahni- eion across the bridj^e of the nose and under the right eye. I could not positively say what caused «leath; I could not say tliiit death was or was not caused by external injuries. 1 stated at the trial (ft>r murder), from the appearance, we were 'H»t satis- Hed that death was not caused by natural causes, ace ted by exposure." I)f?in/',s Unlhert said: '• I was a witness at tho trial of Smith for murder; I knew Currie. The day of the death of Currie, I saw ])ris(iner make a juotion to hit (/urrie, but he was down; I saw Lounsborough take him by the hair of the head and kick him; the prisoner struck at him, but 1 could iu)t say whether he hit him or )U)t. I gave tho same evidence at tho assizes; I did not thiidc it was very serious. They wore not long at him; 1 did not think they had ])eaten him badly." The learned county judge directed a verdict for the crown upon the issue joiner murder, according to the two cases which have been cited, because no such assault could have con- duced ti » the death of Currie. The defendant was therefore rightly convicted <»f an as-^ault at the general sessions of the peace, lie was never before acquitted of that assault, because it was never charged upon or provable against him in respect of the i)rosecu- tion for the murder. The itn])erial act, 24 cV: 25, A'ic. ch. 1)5, re- pealed the corres])onding provision in the English net, on which the ([uestion in the case of Jut/ inn v. Uii'd arose. In the act of ISO!*, ch. 20, sec. li), murder and manslaughter are expressly ex- cluded from the operation of that section, and this shows that they were in like manner excluded from the operation of 32-33, Yic, ch. 29, sec. 51, D. IticuAUDs, C. J. I have gone over carefully the case of licgl- na V. Jili'd^ referred to on the argument. The report which I have of it is in 2 Dan. C. C, 94. 1 tliiidc all the judges there concurred, that to convict of an assault, when the indictment is foi felony, the indictment must be for a felony which necessarily includes an assault. It is not necessary that It should be ex- pressly charged on the face of the indictment. It will be suf- ficient if the felony charged must of necessity include an assault. Vol. l,-^ 1 514 AMERICAN CRIMINAL REPORTS. " «^c «S The crime of rape, and cutting and wounding with intent, etc., are instances of the latter proposition; although there it is not unusual, and perhaps better, expressly to charge an assault in the indictment. But in murder and manslaughter, it is necessary to do so, for murder and manslaughter do not necessarily include an assault. The case of death by poison, or by criminal omission, are in- stances of this. See the judgment of Alderson, 1>., at p. 190. The same learned judge at p. 126, in reply to an oDservation of counsel, that the words in the statute need not mean the crime averred on the face of the indictment, said: "Xo, it means such crime as in its nature includes an assault, even though that as- sault is n(»t expressly averred in the indictment: Thus, man- slaughter may or may not include an assault; a nuvnslaugliter by blows, etc., does so, and nuuislaughter by negligence, etc., does not. 8o administering poison with intent to murder dues not necessarily include .an assault; Ilefj'tna v. Dmpi i\ 1 C. isi K. 17(>, note a. It was for this reason that the judges in Heijiud i. Jjinl, 2 Den. C. C. 04, suggested that the indictment should ex- pressly aver an assault in those cases to which the statute ap- plied.'' I understand that, in the o])inion of all the judges in lixjtna V. Ij'ti'd, unless the crime, as charged in the indictment, iiichidod an assault, there could be no conviction of an assault; and, in the argument, the inference was made and oi)inion exj)ressed, that in those cases where the crime, such as rape, etc , did in- clude an assault, it would be better to Jillege an assault. The words added in our statute, " although an assault be r.ut charired in terms," mav be considered as a le:;ii«lativL' (krlaratiou that it was not necessary in such cases to charge an as>ault, and therefore .that it does not necessarily change the projier construc- tion of the section from what it was before the amendment, as to the necessity of charging an assaidt in ternjs when the crime char''ed in the declaration does not necessarilv include anas- sault. Construing the section and amendment strictly in the light of the decid(id cases, I think we must hold that, when the indict- inent is for murder or manshuighter, the accused cann(.>t be con- victed of the assault, without an assault is charged in terms. It must not be forgotten that in deciding this case, we must iitent, etc., •e it is not assault ill > do so, f(jf an assault. :>n, are in- t p. IW. >i»servatiou 1 the crime nouns such ;;h that as- 'hns, man- nslaughter ,'ence, etc., urder does , 1 C. .^ K. I Ju'fjhtd i. : sliould ex- statute aj)- in Iia\dt. and r eonstruc- iiiont, as to the crime ude an as- lie li<^ht of the indict- lut l>e con- terms. .', we must REGINA V. SMITH. 515 look at it as if the defendant had been convicted of this assault when on the trial for the felony, in which event he woidd have hoen liable to a much more severe puuislnnent than if convicted on an (rdi'.iary indictment charging an assault, as the one now befi»re us is. I think then, in this view, the defendant's plea fails, and the conviction in the session must be sustained. As to the other (juestion, though doubtless some of the eight jii<1gts who compose the majority in JiinVs Cxse take the broad ground, that on an indictment for murder or nianshuighter, the defendant cannot be convicted of an assault; for, if the assault contributed to the death of the person charged to have been mur- dered, the crime is either manslaughter or murder, or nothing else. I do not find that all the judges assented to that view. Mr. Justice AVir.uTAf.VN, who concurred with the majority of the judges, said, at p. 1(!1»: "If. in the present case, it had ap- ]ieared that, at the time the mortal injury was received, the pris- oners were with the deceased, and had assaulted and beaten her immediately before, but tliat the evidence raised a doubt whether the mortal injury was occasioned by blows, or by a fall which un"irht be attributed to accident, and on that ground the iurvhad aci[uitteil the prisoners (»f felony, I should think that they might be convicted nf assault under tlie statute, for in that case the assault proved would have been involved in, aiul formed part di', tlie act or transaction charged as felony in the indict- ment, and prosecuted as such, and though the evidence failed t(i establish it as a felony, it was the oidy transaction which was intended as felonious. If that was not felonious, there was no other." Again, at }). ]>i7, Pattis i.v, J., who concurred with the ma- jority of the judges, said: " If, indeed, the very act or transac- tidu \diich the c.-own prosecutes as a felony turns out by the evidence not to be felonious, and so no felony at all is proved, then, if the ass;iult be proved against the prisoner, he may be ac(piitted of felony and convicted of assault. And this may be the case even in murder or manslaughter, for it may happen that the prisoner has severely assaulted the deceased, and the death may have been supposed to have been the result of such assault, and the prisoner may have been indicted for murder or manslaughter, ii?uler such a supposition, yet it nuiy turn out in "f^'^p AMERICAN CRIMINAL REPORTS. evidence that the deceased died from natural cansos not occi- Bioned, nor even afjgruvated or in any way aft'ectetl, hy tlic assault proved, and, in such a case, tlie prisoner might, I tliink, be con- victed of an assault. I thiidv the doctrine here laid down might ai)ply to the case before ns, hut it is not necessary to decide noAV whether the de- fendant might or might not have l>eon convicted of the assault on an iiidictment properly framed, as we think this indictment was not so framed, and he could not have been convicted. The broad ground taken by the judges who dissented from the conclusion arrived at by the majority in U'r/fx Caxe was, th.-.t the evidence ofl'ered on behalf of the crown in proving the assault was so offered to prove a felony; and, until the jury j>ronouii('t(l upon it and said the felony Avas not pro\e(l, the accus'^'d was in jeopardy as to the felony from the very assault so jiroved, ami the jury having acquitted of the felony should have convicted of the assault, if the accused was guilty (vf it. If he was not guilty, then the general verdict of not guilty should free him from agi/;n being put on his trial f(n' the offense which was proved befoir. Of course, aJi assault six months befoi'c the death of the j^arty and which had nothing to do with it, cotdd not be brought in; but if the assault was just aboiit the time of the death, and it was contended and attempted to be proved on ])ehalf of the cniwn ihat it did occasion the death. l»ut failing to ])rove that, then the case contemplated by the legislature was made out. That seems to have been the genera) view of the disscnfini,' judges in that case, p-Tv^ were it not Kthorwise decided, we might suppose it to have been the reasonable one. As the clause of our statute now stands, considering the (1(>- cisions that have been made on the subject in England, as wrll as in this countrv, it would seem to be of little value, and miirlit as well be rej)ealed. In the American edition of 2 Den. ('. ('.. at p. VII. Jiotc A., referring to lictjiiKt v. Jh'djhi', 1 ('. A: K., ITts it is said: "'rhis seems to show that where the crime charged in the indictniciit may include an assault, but no assault is ex]>ressly ()r impliedly averred in the indictment, it will depend upon the nature of the crime, as ascertained bv the evi not occa- tlie assault k, 1)0 Con- to tlic case icr tlie *le- :lie assault iidictinent ted. 1 from the ' was, that the assault )roiioun('f(l isf^Ml was in roved, ami oiivicted of not ynilty, from aiiiJu }d before. if the ]>arty •ron^-lit in; . and it Avas the entwn lit, then the dissenfiiii,' 1, we miu'lit in:;' the dc- uid, as wrjl and miirlit i7, imtc A., ^aid: '-This indictnit'iit • im]>iiedly vtnre nf the nelndes an iid \'ic'. eh. Ltuld be au REGINA i\ SMITH. 517 insufficient test. Conip. Eeghia v. D'dworth, 2 M. & E., 531. ''The case in C. *fe K. is opposed to llegitia v. Dilworth, above referred to, and must be considered as overruled in Bird's Case. jMokuison, J., concurred. "Wilson, J. This case may be considered in two aspects. Firstly, as if the indictment for murder did charge an assault, by reason of the words, " although an assault be not charged in terms," and as if a conviction for assaiilt could be made under it. Secondly, as if the indictment did not charge or include an assault in any manner, by the effect of the statute or otherwise, and as if a conviction for assault could not be made under it. In the rirst case, the evidence shows that the assault did not conduce to the death of Currie, and the conviction is right. In the second case, whether the assault conduced to the death or not would be of no conse([nence, and the conviction is also right. That really dis])oses of the case. In the case of Jlct/imc v. JJinI, 5 Cox C. C, 1; 2 Den. C. C, 1)4, an assault was expressly charged in the indictment. In lioijina 'O. O'anes, 22 C. 1*., 1S5, I assume it was not; but that the statutory form "did feloniously, wilfully, and of his malice aforethought, kill and murder," was adopted. Under the Consol. Stat. C, ch. 00, sec. G6, it was decided that the charge of mnrder in the words of the statute just given was not a crime charged which included an assault against the per- son, because murder was an otlense which could be committed otherwise than by an assault. It is said that the act of 1S60, 32, 33, Yic, cli. 20, sec. 51, D., by the addition of the words, "although an assault be not charged in terms," has altered the meaning and operation of the statutory form of indictment, and that now an indictment for niu'der in the nsmd short form must, in every case, be read and construed as charging an assault, or as if it did charge au assault, and as warranting a jury to convict of au assault if the evidence sustain it, although they acquit of the felony. It is not necessary to decide that point, for I think it does not necessarily arise here. I have no objection to express my opin- ion njion it, as it is a nnvtter of the most serious importance. I do not see that any argument can be derived from analogy, to help us, from the statutes authorizing a conviction iu some _i'i- ,i : n 518 AMERICAN CRIMINAL REPORTS. M^^B ' ^-i'^^^H HS^-«S NH . ' ;||iBJI ^^Ha ' j'^l I cases for an offense where n wholly different one is charged in tlie indictment, and there is an acquittal from that charge; as, for an attempt to commit an offense where the ]>roof of the cpiiig. and stealing from the ])ersoTi. In all these cases the party, if acquitted of the i)rincipal charge, could be convicted of the minor offense Mith perfect propriety, because the minor is necessarily included in the greater crime chari^ed. In such a case there must have been an assault, although the assault be not stated in express terms to have been committed, if the principal offense were committed. And, if the princijial offense were not committed, there may, nevertheless, consistently with the nature of the crime charged, have been an assault in fact. I think that Mr. McKe>i.~ie''s argument is entitled to great weight, that if, under 32-33 Vic, ch. 20, sec. 11>, I)., on a charge of murder or manslaughter, the jury were expressly pvecluded r^cd in the •i,'e; as, fu.r le ('i)iinuis- CMiifi'iil tlie it; or, fur ceiiy, on an iiiittiiiy; tlio it, ii]K)n an 'ailed, than ite enacted? iiicl tides an ehai'i^-ed in in, does tlic iK.t. That nd nvrder- an assault. b? I think d to mean, rged as aji- an assault, loni^di it he itlistandiiig •citliiaj>j)ini.', :ie ]>iirty. if f tlie minor necessarily tliougli tlie eoinmittcd, le ])riiiei])al 'oiisisteiitly anlt in fact, ed to ujreat )n a charge ' pvecludcd m REGINA V. SMITH. 519 from convicting one for unlawfully cutting, etc., wliy should they he rec^uired to convict of an assault? It may be somewhat difficult to separate the assault, or the cutting, etc., from tlie murder or manslaughter, but I tliiidc it may be done. The assault can be separated froi.- the alleged rape, or I'ob- hery, for neither of these oftenscs might have been committed by fhe i)erson charged, in which case the assault might well stand, although the principal oftense failed. It seems more difficult to make the separation wlien life has been takeji, and the greater otleiise has been apparently commit- ted. I*ut life may be taken and no crime be committed, and yet there may be such a degree of cul])ability upon the person charged with tlie offense, that although he is not guilty of the crime, he is of an assault. I can conceive such a case. In my o])inion, the newly added words in the s'tatute, altliougli an assault be not charged in terms, make no other dill'erence in the operation and constrtiction of the clause, than to make it ])lainer or more emphatic than it was before. These words have not enlarged ai. ' do not enlarge its opera- tion. The section still apjuies to cases where the crime charged includes an assault, and to such cases only, and therefore not to ail indictment for murder, framed as this one was upon the stat- utory model. The conclusion 1 have come to is, that the conviction is right, liccause the assault in question did not conduce to the death of Currie. And it is of no conseipience in that view how the in • dictmeiit for murder was framed. And I am uf opinion, if it be material to determine, that the conviction is right because the defendant could not upon the in- dictment for murder, framed as it was, have been convicted of an assault. The court, therefore, determines that the defendant was rightly convicted of the assault, and it is ordered that the judge of the county court, as Judge or chairman of the general sessions of the peace for the county of York, or the junior judge of the county court, and as such junior jnleaded imt guilty, and a jury was selected and sworn in accordance with the law, and the accused legally and regularly ])ut upon his trial. AVitnesses were introduced on the ])!irt of the commonwealtli whose testimony conduced to connect the accused with the kill- ing of Ilogan, and while a witness was being e.\amined by tlie prosecution one of the junjrs (Spilman) announced from the jury hox that he was a member of the granleiidcd not ce with tliu II his trial, inoinvi'alfh th the kill. nod hy tlie III the jury found and •rosecutioii lotion and diseliari^'od The trial le c'iiso was urn to the !i new in- iction was iii^ in snl)- (J to ai^iieur jrmer trial foriuiiig a part of tlie hill of evidence in this case. There is no controversy, however, hetwoen the attorney for the state and the counsel for the accused as to the existence of the facts constitut- ing the defense relied on. It is now insisted that the accused had the right to demand that the trial under the indictment found in 18(18 should have progressed, and the court had no power, without his consent and against his objection, at its mere v/ill, to discharge the jury, thereby preventing them from making a deliverance between him and the commonwealth; and he is for that reason entitled to an acquittal. An instruction containing in substance this view of the case was (itl'ered i)y counsel for the defense and refused by the court, to which exce])tioiis were projierly taken, and the question now presented is, iShould this instruction have l)ee n given to the jury? There is much diversity of opinion among judges as to the ])ower of a court at its discretion to discharge a jury, during the pro- gress of the trial, in a criminal case where the punishment is death. The ancient common law doctrine on this subject was to refuse to discharge the jury in such a case even with the consent of the prisoner; but this doctrine was discarded by many of the earlier English judges as unreasonable, and tlie jury permitted to he discharged in cases of a])solute necessity. Lord Hai.e said that if the prisoner after his plea and before trial becomes insane, he shall not be tried; and if after trial he becomes insane, he shall not receive judgment; and in a case where a juror fell down with a fit, it v^-as held that the jury was properly discharged. 1 Hale, 31; '2 id., 'Jl)5. The discretionary power of couns over juries in capital cases has been greatly enlarged in many of the sttitesof the Union, and in some it is held that while judges must be extremely cautious in interfering with the chances of life in favor of the prisoner, still in the exercise of their diecretion they have the right to discharge the jury, and the only security the prisoner has is in the conscientious exercise of this power and the responsibility of the jiKlges under their oaths. That courts have the power to discharge juries in criminal causes where the accused is even charged with a capital otlense, and that without the prisoner's consent, is now too well settled to be doubted; but whether the exercise of this power is to be determined at the mere will of the 623 AMERICAN CRIMINAL REPORTS. 11' P- i. ! judge, or only in cases of absolute and extreme necessity, is a qnestion in regard to which we lind many conflicting authorities. Section 'ill of the criminal code provides that a challenge for implied bias may he taken where the juror was a member of tlie grand jury that found the indictment, but in no wise disipialifies him, unless challenged by the parties to the indictment. Wliuii Uie fact is disclosed showing this inqdied bias, if the accused fails to object or ask a discharge of the jury, it is a waiver of his right, and, as decided by this court in the case of Flt-qxiti'hi- c. I^orri^, he cannot afterward, for this cause, avoid the verdict or obtain a new trial. The accused, however, in this case, after having once accepted the juror, was still willing to be tried by him, and ])rotestod against the action on the part of the court in discharging hiin, by excepting to the ruling; and the court, disregarding his nl). jections, retpiired the trial to progress after the substitution uf another juror. Section 248 of the criminal code ]>rovide8 "that if, after re- tirement, one of the jurors becomes so sick as to prevent a con- tinuance of his duty, or other accident or cause occur ])reventiiig them being kept together, or if, after being ke}>t together sueli a length of time as the court deems projier, they do not agree on a verdict, and it satisfactorily aj»pears that there is no proha- bility they can agree, the court nuiy discharge the jury." Section 24I> ])rovides "that in all cases where a jury is dis- charged, either in the })rogress of the trial or after the cause is submitted to them, the same may be again tried, at the same or another term of the court." It could not have been intended by the section .siiprd (ilS), that the power of the court to discharge a jury, in cases of necessity, is restricted to the causes enumenited in that section; if so, all other causes arising during the ])rogress of the trial, showiiiu' a clear and manifest necessity for the discharge of the jury, must be disregarded. This section of the code, in (»ur opinion, wiis not intended to define all the causes upon the happening of which this power could be exercised, but was only intended as an adoption of the legal rule that a case of actual necessity must exist before a jury can be discharged. Section 2-ti) was interuled to apply to such cases as are men- tioned in section 24S, and has direct reference to the latter sec- co,<.sity, 18 IV aiitlioritiL's. iilloiiife for nl)t;r of tlio oth the commonwealth and the accused, and nothinir but his death, sickness, or some accident preventing his continuance on duty, authorized the court, without the consent of the accused, to say that he should no longer constitute one of the panel. AVh;it the verdict of the jury might have been with Spilman up- on it is left altogether to conjecture; yet the accused was entitled ■to a verdict from him in conjunction with his fellow-jurors, and the court had no legal power to deprive him of this right. Sec- tion IJ- of article 13, state constitution, provides "that no person shad, for the same otiense, be twice put in jeopardy of his life or limb." A similar provision is also made part of the federal constitu- tion, and that of almost every state in the Union. The right of trial by jury is of but little value to the citizen in a criminal ju'osecution against him, if this provision of the constitution can Ite violated and the accused left without remedy. If the judge can arbitrarily discharge and impanel juries until one is obtained that will render such a verdict as the state demands, or the at- torne\' for the prosecution desires, and the only protection against such oppression is that a new trial may be ordered in the court trying him, or hy the court of last resort, then of what value is 534 AMERICAN CRIMINAL REPORTS. t iv"A tins boasted right? It will not do to say to the nceused that hisj only prutection is in the sound discretion of the jiid<,'e, or in tlie responsibilities assumed by him in takinj; the oath of olHce. As remarked by Justice Tii.ciiiMAN in the ease of the Tlie Cotionon- ici'tilth V. Cook, Serrin('i])lo which projects him from being twice ])ut in jeopardy of life uv member for the same (tllense, I am at a loss to imagine. If dis- cretion is to be called in, there can be no remedy for the abuse of it but in interposition of the power to pardon, which is obnox- ious to the very same objection. Surely every right secured by the constitution is guarded by sanctions more imperative. A right which depends on the will of tlie magistrate is essentially no right at all, and fur this reason the ct)mmon law abhors the exercise of a discretion in matters that maybe subjected to tixed and definite rides." While the integrity of the judiciary of this country has ahv.'iys been maintained, still wo are satisfied the surest i)rotection to the citi;2en when npon trial for a ca])ital odeuse, u]»on such a state of facts as appears in this case, consists in the constitutional guaranty that he shall not be twice ])ut in jei>pardy of life ur limb for the same offense. If the judge has the legal right to discharge the jury in a case like this, he may also discharge it on account of the absence of a witness for the ])rosecution, or in every instance, and as often as the testimony is deemed insuf* ticient upon which to base a conviction, and subject the accused to the same niode of trial as ])ertains to every civil action. It is, however, urged by the attorney for the state that the ac- cused was not in jeopardy when the jury was discharged; and in order to have placed him in jeopardy so that he might be heard upon his special jdea, there must be shown a verdict or judgment of acquittal upon a previous indictment for the same ofl'ense. If ed thiit liiij e, oi- ill the olHco. As ' Com III on- e <»t' |turlty iiiry of tho iUHt HtiUuls, .yiiKMit (if a juries; l>iit til is di.st'ro- iiii)ini\<(lth, :lit tliiit tlio is^crelidii uf il ]»riiuM])lo )' (ii lit'c! ur »e. lf(li.s. ' tlio ilbutSO li is (ihiiDX- Kt'ciiroil l»y initivo. A e.sseiitiiilly abhors the ted to lixod liiis iil\vaj3 I'oti't'tioii to I»ftense. If O'BRTAN r. COMMONWEALTH. 525 the record imipt show a state of fact tliat would authorize the plea of Hiifiu'j'ot's (^np/if or coiivJrt^ tlien it follows that the same character of evidence is re(]uired to bar a prosecution upon an indictnient for murder that must be shown in a common law action determiniiii; the ri<,'ht of property, and the juduje in either case is empowered to discharge the jury wlieuever in his opinion the ends of justice re(|uire it. 8ueh v 'rtiunly can not be the incaning attached to this jirovision in the bill of rights. Tho word jeopardy means exposure to death, loss, hazard, danger, peril, etc., and where one is put upon his trial on a charge of murder, before a jury sworn to decide the issue between the commonwealth and himself, the accused is then exposed to the hazard and peril of his life. In this case the accused was will- ing to risk the chances with the jury he had selected, but the court below comjH'lled him to assume the additional ]>cril of being tried by another ami ditlerent jury; and as said by Chitty in his treatise on Criminal Law, " that to discharge a jury in a criminal case has one great inconvenience, that of bringing the ])risoner's life twice in jeopardy; and in the case of the Coramonvealth v. Conk, (5 Serg. ».*c Jvawle. ('.77, Justice DrxcAx says: "That when the jury are charged with a prisoner, where the offense is punisha- ble by death, and the indictment isnot defective, lie is in jeopardy of his life, and the prisoner is entitled to say to the court, 'I have put myself on trial for life or death on these twelve men; I will not agree to be again ])nt in jeopardy." In the case of Jhihfn'iis v. The State, U Ohio St.. 400, where the accused claimed an ac(|uittal by reason of the discharge of the jury upon their failure to agree. Attorney General Critchtield for the state said: " It is well settled that the ])laintiff in error was put in jeopardy by the first trial, if the court improperly discharged the iury. A verdict is not necessary either way to put a defend- ant h\ jeo)>ardy, and being once jeopardized and not convicted, it is an ac(juittal; but it is also well settled that the court can ex- ercise a discretion, and discharge a jui-y in case of .absolute neces- eitv, and where there is no reasonable hope of the jury agreeing on a verdict." And in the same case the learned jmlge, in de- livering the opinion of the court, says, "It is perfectly well set- tled that if the state intervenes without a case of necessity, and prevents a verdict, the accused can not be subjected to a further trial consistently with the constitutional guaranty that he shall 'Am ^:#ii:t i 'i\ . il .£*:■' lia 52<] AMKRICAN CRIMINAL UKPORTS. fil 'm not be twice put in jeopardy for the snine nffeusc;" iukI tlio fol. lowing oiisert are cited: " Ilnrht/H tV/.v>', (5 Ohio, 4(Ht; Mmnit r, T/ieSf(d(\ l-t Id., Hl»4; Poityc ?'. .S'A^A, JU Milo St., '.'-'!>; JA7r,,\ 1 IJtiil., Cuu\ People v. (/ooifinin, IS , I i»]iiif<., *J(tr»; /*,i>j>/e r. Ii,ii'. retf, ii (Raines, ,"04. "A person \a in le<;al jeopardy wlien lio U put upon trial before a court «»f competent jurisdiction upon in- dictment or infornuition wliidi \h .sutKcient in form and siil». stance to sustain a conviction, and a jury has been char:,'ed with Ills dellveraTice; and a jury is said to be tlius diari^eij when tlioy liave been impaneled atid sworn. The defendant then becomes entitled to a verdict which shall constitute a bar to a new prosecution, and he can not be deprived of this bar by the enterintill we thi it quite dilhcidt to designate all the causes tii,, woiil'' legally jus- tify sucli action on the part of the court, find can mly reatlinii the principle embodied in all the cases referreil to, and which, in our opinion, is also the doctrine of the common law, that every interference on the part of the state, after the jury has charge of the prisoner, by which the accused is prevented from having a verdict declaring his guilt or innocence, uidess upon facts clearly establishing a case of necessity, or showing the i)ris(»ner's con- sent, must operate as an acquittal, and this is the only mode of preserving and maintaining the constitutiomd provision on the subject. In 3 Wliart. Am. Crim. Law, § 3128, it is said, " an arbitrary O'BRIAN V. COMMONWHALTII. r. ivikI Hio fol. wlion lie U •II ll|»n|i ill- II iuid siih. laru^od witli wlit'ii tlu'y wliicli slmll »o (Ic'privi'il Ht liis M-ill, se." C.jnl. r, o'XiiAi.i., ask what is lit uj)()ii ]iis may ro.n for the same crime; of this he could not be dej>rived at the will of the court by the entry of a iiollo prosequi or tlio discharge of the jury without an absolute necessity therefor. Such action taken without his consent would o])erate as an ac- quittal, and be a bar to any further or 8ubse(|uent prosecution for the same ofl'ense. To hold otherwise would be to contravene the constitutional guaranty against being twice put in jeopardy for the same oH'ense." An ac<[uittal, however, was denied for the reason that the accused had objected to being tried by the juror. If in the pres- ent case the attorney for the state, after the introduction of the testimony for the prosecution, had by leave of the court entered & nolle jifoKiqii/, is there any doubt but that it would have re- sulted in the jirisoner's ac(piittalJ We think no jurist will assume that he could be again be tried for that oftense, and if so, must not the discharge of the jury by the court under like cir- cumstances have the same effect? It certainly would, and in either instance can be relied on as a comjdcte bar to any subse- quent prosecution for the same alleged crime. It will be found upon a careful examination of all the authori- ties in conflict with the views here presented that the oi)inions have been delivered in almost every instance in cases of misde- meanors, where it is admitted the court, as in civil cases, can ex- ercise a sound discretion in the discharge of the jury, but in cases involving the libert}' of the accused, the judgments affirming the action of the lower court in discharging juries have been reuderod F : • ! 52S AMERICA ;n criminal REPORTS. H isr in cases showing an absolute necessity on the part of the court in ordering a new panel. There is no case to be found wbere tlie citizen has been placed upon trial for murder, and the jury di^. charged without his consent and without legal cause, where a doctrine contrary to the views herein exp''ossed has been an- nounced. The opinion of Justice Washington, cited in 1 "Whart. Am. Crlin. Law, ]). 5S0, altliough often quoted as sustaining the doc- trine that the provision of the constitution in (piestlun does not apply to a jeopardy short of conviction, .and that there is no dif- ference between misdemeanors and capital cases in respect to the discretion of the court in discharging jurie?, contains tliis lan- guage: " I>y re])robating this plea (former jeopardy), we do not deny to a prisoner the opportunity to avail himself of the im- proper discharge of tlie jury as ecjuivalent to an accpiittal." This court, in the case of the Coiiii/ionir/yt/tk v. Olds, who was proceeded against in tlie county court fur failing to list a billiard table for taxation, in an opinion delivered in the ywir 1824, ad- judged that nothing short of a tinal verdict or judgment could relieve a party from a secciul trial, and apply the arguinont as well to criminal ]»roceedings as to misdoni ?aiiors; and when the present case was here by a])peal in ISOO, the court adojited the former case of Olds as a precedent, arlnclples allecting either the rights of jierson oi- property, and in a civil case we ''Vould not hesitate to de(Mde that the former adjudication settled forever the rights of the parties. In the present case, although the <]uestion seenis to have been well considered in rendering the former opinion, still the court was only urged to its conslderati(»n by the ])erslstency of counsul wdien there had been no plea presenting the (piestion to the court below, or even a motion made to discharge the prisoner. The accused had no opportunity to j)resent the special plea until the return of the cause and the finding of the present indictment; and with such a j)lea, sustained by the facts as they a|)peared on the former a})peal, ^^e are satistled this court would n(;t have aflirmed the judgment had there been no other cause of reversal. STATE V. WILSON. 529 lIio court in I wli.ere the e jury dU- se, wilt-re a s been an- iVliart. Am. n<^ the doc- t)ii (loos not [•e is no dif- spcc't to tlie n.s this lan- u we do not of tlie iiii- ittal." /.y, who M-as st a hilliard ir 1SJ4, ud- nient could ri:;uinont as 1(1 whi'u the adojtttMl the 10 ju'iiu'iple this oa.-o is to and oon- ■ncc to well person nr decide that the ])artios, » have been II the court f of Counsel to the court soner. The ea until the Indictment; ippeared on d not have of reversal. Conceding, however, that this (juestion was properly before the court upon the former aj>peal, still no former adjudication gives to the state the right to take the life of the accused when he is entitled to an actj^uittal. Tlie commonwealth is not in pursuit of victims, but desires to inllict punishment oidy in a legal and con- stitutional way U})on the guilty. The judgment of the court below is reversed; and as the verity of the record of the fc»rmer trial is admitted, by the state, the court below is directed to discharge jiurty O'Brian from custody. Lindsay, J., not sitting. State vs. AVilson. (50 Iiul., 487.) Practice: Dlschnnje of Jitn/ in rcs/ioiideiit's absence. On a trial for munlor, tlio jury, aftor beiiijf out thirty-two honr.^, woro dis- cliarj^L'd //( ///'.' nhscncc of the irspomhut, on account of thoir inability to agree. This, being specially pleadeil on a second trial of tlie same indict- ment, was held a good jilea and a bar to farther iirosecution, I'lDOf-F, C. J. Tlo!)ert Wilson, with John Cope, was indicted for murder. "Wilson pleaded not guilty to the indictment, and v.as put upon trial by jury. The trial progressed, the evidence was intnuluced, the argument of ccunsel heard, and instructions of the court given. The jury retired to consider of their ver- dict, and, after deliberating thirty-two hours, were returned into court. They were interrogated by the court as to what the probability was of their agreeing upon a verdict, and they an- swered "there was none." Thereupon the coui-t discharged the jury from the further consideration of the crtuse. The appellee afterwards specially ])leaded the discharge - i the jury in bar of the further prosecution of the case. The pica set out the proceedings formally, and avers that sucli proceedings were then and there had in said case, tlu.i on the 'Jdtli day of November, 18T4, the said jury, having been duly charged by the said court, at the hour of eleven o'clock and twenty-live minutes, A. M., of said last mentioned date, they re- tired, under the charge of a sworn bailitf of said court, to con- VoL. I.-34 If 530 AMERICAN CRIMINAL REPORTS. li ! ; tj Ur sider of tlieir verdict, and that said jury continued their deliljer- atious till the hour of fifteen minutes before eight o'clock, P. M., of the 21st day of November, 1874, and having failed to agree upon their verdict, they, the said jury, were thereupon brought into court by their said bailiff by the order of said court, in the absence of this defendant, the said llobert Wilson, aiid while he was then confined and restrained in the jail of said county, and without his knowledge or consent, directly or indirectly; and the paid court proceeded then and there to interrogate said jury upon the probability of their agreeing upon a verdict in said caune, and the said jury then and there informing the said court that there was no probability of their agreeing upon a verdict in said cause, the said court thereujion discharged the said jury froui a further consideration of said cause, this defendant, the said Iloh- ert Wilson, not being then and there present, l)ut being then confined and restrained in the jail of said county by the sheriti' thereof, and without his knowledge or consent as afore^aiil."' The state demurred to this plea for want of sufficiunt facts. Tlie demurrer was overruled, and proper exceptions t;ikon. "We are of opinion that the discharge of the jury, under the circun..-tances averred in the plea, would have been proper, if tlie appellee had been present in court, even though ho had objected to the discharge, unless he had showix some good ground whv the jury should not have been discharged; and in .!•: The State V. Walhr, 20 id., 340; Shaffer v. The Stat.', 27 id., i:;i: The State c. Zcnnuj, 42 id., 541; and Kingen e. The State, 40 id , 132. The more difficult question is: Wliat was the etlect of tlic en- forced absence of the prisoner from the court at the time the jury was discharged? It was the right of the j)risoncr to be present at the trial du- ring all its stages. " Xo person prosecuted for any otl'ense ]iuii- ishable by denth, or by confinement in the state prison, or iu the county jail, .' :.ill be tried, uidess personally present during the trial." 2 fr. iV 11., 412, sec. 04. JIow far a prisoner may waive this right, either expressly or by his voluntary al»seuce, need not be discussed here, as the fpxestion is not in the case. ]>y tlie averments in the plea, the prisoner waived no right, and euuld STATE V. WILSON. 531 leir (leliber- lock, r. M., ed to agroo oil hi'on-'lit !oiirt. in the ikI wliile lie county, and tly; and the 1 jury ujion said cause, d court that diet in said jury from a le said Roh- bc'iiig tlion \' t!io slierilf resaid."' icieiit facts. taken. y. under the n-oper. if tlie hail ol>jectod _i;round why ucli case tlie furtlicr jiros- iid., ;;!•: 77,,; 27 id., i:)): lu: Slut,, 4t; ■ct of the en- tile time the the trial du- otlense ]>un- loii. or in the t during- the r may waive ice, need not ise. Hy tlie t, and could not possibly have been present, hy his own act, at the time the jury was discharged. A verdict against the prisoner, under the circumstances, would have been erroneous, and some authorities hold such a verdict void. St(ft(i V. Ilnrlhiit, 1 Root, 90; State v. Braunschreig, 36 .\[o., 307; Price v. T/ie State, 2 Morris St. Cas., IIOS; Dioiti v. The C(Hi)inonioealth, Penn. St., 384; Dougherty v. The Com- monicedlth, 69 id., 2S6; Snrol v. The State, .5 Ark., 431. A verdict of acipittal, under the circumstances, would, of course, forever bar a further prosecution. It remains for us to decide M'hat ought to he the effect, where no verdict is rendered, and the jury is discharged, according to the facts alleged in the plea. We liave been unable to find any decision or i)recedent to guide us in such a case. Mr. Wharton, in speaking of the presence of the prisoner at tlie reception of the Acrdict, says: "In felonies such presence is essential; and cases have not been unknown where the courts have refused to permit this right to lie waived. Thus a verdict of burglary was set aside in Penn- sylvania, when it was taken in the defendant's absence, although his counsel waived his right to be present." Wliart. Grim. Law, sec. 2090; Prhie v. The O >„unonw,y(Ith, IS Penn. St., 103; A71- (Jriii's V. The State, 2 Sneed,.5.jO; and Jacl'son v. The Common- u\aJth. 19 Grat., 6.-)6. In the same section the author continues: " It is scarcely necessaiy to say that in cases where corporal punishment may be assigned, absence during rendition of the verdict, without waiver, vitiates the ]n-ocecdiiigs. And in fact this is exacted by the common law form, which requires the jury to look on the prisoner, ami the prisoner to look on the jury, when the verdict is rendered. The better view is that in capital, if not in all fel- onies, the record must show that the defendant was present at trial, verdict and sentence." It is held, too, and we believe it is the universal practice in all felonies, that the prisoner, after verdict and before sentence, shall be iiKpiired of by the court if he has anything to otter why the ju: him. And even at this stage of the case he may move in arrest of judgment, for want of suHiclcnt certainty in the indictment as to person, time, place or offense; and if his olyections be yn ■HP, 532 A5IEKICAN CRIMINAL REPORTS. valid, the whole proceedings shall be ?et aside, -i T>1. Corn., 875; 2 G. 6c II., 420, sec. 122. What the i)i'isoner, in the case before us, if he had been present, might have ofl'ered to the court to show why the jury should not have been discharged, or wlietlier anything, indeed, it is impossible for us to know; l)nt we are un- willing to adopt a rule which would deny liiin the right to (iti'cr whatever was in his power. We thiidc the facts stated in tlio plea constitute a sulHcient bar to any further prosecution of the case, and that the court cominitted no error in overriding the demurrer. T/ie jtuh/mcnt is affinin:d. Nolan vs. State. (55 Ga., r,21.) Practice: Fonncr jvojxnyhi — Discharge ofjunj in respondent's (ihscurr. Tlie respondent, Iiavin<,' boon tried for homicide, the jmy, while tlie ri'sprinil>'iit was absent, confined in jail, returned a venliet of guilty of voluntary iiian- slau<^lit(>r. On motion of ivsiKnident the verdict was set aside. Onbrjnij aiTaigmnl for a sccoml trial, respondent pleailed specially his former jiiip- ardy. Held, that the ]>lea was {?ood, and a bar to further prosecution. Wlien t!:e defendant has been once le^-ally jnit on trial, the jury sworn and evidence introduced, any mmecessary di>cliar;re of the jury without their havin;,' rendered a leyal verdict, and without the respondent's consent, npi'i- ates as an adiuittid, and is a bar to a further jirosecutii-n fnr tise same ofli.'nse. k* t Xor.AX was ])laced on trirl for the offense of murder alleged to have been conunitted upon the ])erson of ^lartiu (irog.ui. Evidence was submitted to a jury regularly im])aneled, argu- ment had, and a charge delivered by the court. i>ul)st't|uiiitly, while the defeinhiut was contined in jail, in the absence of his counsel, and without his consent, the jury returned a vcnUet finding him guilty of voluntary manslaughter, and were dis- charged. The defendant, at a subst'(|uutit term, moved tluit said verdict be set aside on the ground tliat it was rendered and i)ul)- lished in his absence, and without his right of being ])reseait hav- ing been waived. The court ordered accordingly. The defendant was subsefpiently arraigned a second time upon the same indictment, when lie ])leade(l specially in bar the i-.fore- m NOLAN I'. STATE. 533 Com.,?,r5; ciieo l)cf()ro ic c(.)iirt to (>!• wliothor we are iiii- \s\\t to offer !ites|)rmilfiit oliiutiiry iium- idi'. ( hi ^H■\\yT is IViniitT ji'iip- :)st'c'utioii. iry sworn :uiil • witlumt tlii'ir ■ iiin>i'iit, (iiii'i- . fur tlir S.llUij '(kr !illoi,''eil in (tl"ni;';ni. leled, iir^'ii- il)se(|iu'iitl_v, -eiiee nt' his (1 !i venlict 1 wi're (lis- .'(1 that Slid !(] atnl i)iih- )rusejit hav- I time tipuii r the afore- said facts as constitutiiif^ liis liaving been ])laced once in jeop- ardv, and claimed liis dlscliarire, Tlie })lea was overrulelicable, in terms, and would bo upheld by all courts alike. 15ut we reach debataljle ground when we come to those cases in which trials have been begun but not ended, and some others, in which the endings have been ineffectual because irreg- ular or wholly void. Courts are not fully agreed where jeopardy begins, or how far the defense of one in jeoj)ardy differs, if at all, under our American constitutions, from that of 'ut/'efois con- vtci or autrefois acquit, under the English common law. In the view of some judges, jeopardy arises, not out of the trial, but out of the verdict, as if, in a combat intended to be mortal, there is no danger of being slain until you are hit. The former decisions of this court have tended always to treat a jury, when impaneled, sworn and charged with the case, as the m > ■ } I'' I I: 631 AMERICAX CRIMINAL REPORTS. k' /•, liSi consecnvted body of peers whose imlividual iniiuls and personal consciences are laden with the prij-uner's det-tiny. Xot a jury simply, hut this jury, are to pronounce npon his guilt or inno- cence. Thcj, and they alone, are to ]>ass between the f-tate and the jirisoner, and arbitrate the grave matter in dispute. Their decision may or may not be final, as against the prisom-r, Imt it will conclude the state forever, uidess annulled at his instance. Though he may avoid it for any material error committed against him, the state cannot avoid it at all, but is bound by it irrevo- cably, so long as he suffers it to stand. lie has a right to have it made up and legally returned into court, so that he may, if it 8uits him, acce})t it. A verdict oii this trial and from this ])articular jury, not on some future trial before another jury, is Avhat he may demand, and what the state, subject only to obsta- cles amounting to legal necessity, undcrtalces to ailbrd. ''AVlmt eay you, gentlemen of the jury, am I guilty, or not guilty?"' To this question he is entitled to an answer, if to obtain it be Mitli- in the com])ass of legal possibility. IFe takes the risk of its bc- i]ig adverse, and may claim whatever chance there is of its l)eing favorable. The fear of the situation is upon him, and he is en- titled to its hopes, also. Condemnation or deliverance, here and now, is the one alternative. Only with his consent, or for some legal necessity, can the crisis bo ended whilst the voice of his jury remain undeclared. What amounts to such legal necessity as will iustifv the dis- charge of a jury without a verdict is a snl>ject on which courts liave widely ditlered. 5 Ind., 21)0; S id., 3L>.5; U id., l.",r>; in id., 357; 2(5 id., 340, 3G0; 10 Ark., 5CS; 3 Ohio, 229; U id., 403. The tendency, of late, has been to lower the standard so as to comi)rehend "loral as well as jdiysical necessity, and in the region of the iioral, to be content with very moderate tests. Mistrial, from inability of the jury to agree, is clearly within the principle. So, too, is the case of voluntary absence by the pris- oner when he ought to be present; and, upon this theory, the cases in 2 Sneed, 550, and 7 Ala., 259, can be upheld. ]5ut we think no jiossible expansion of the rule can include the return of a verdict durintr the enforced absence of the accu.scd by impris- onment, and the discharge of the jury as conserpient thereujmn It is not (juite clear, from the report, that the case in 2 Ala., 102, was one of that kind, for the cause of the prisoner's absence is ^r^m NOLAN V. STATE. 535 ul poi-sonal Xol U jlllT ilt or iiiiio. le Fttite and 'II I e. Thoii- ■■vnv\\ l)iit it i^i iiKstance. tfoil a_:^aiiist y it irrovo- it to liavo it e iiiuy, if it from tlii.s Ik!!' jury, is ly to oli^ta- •a. '-AVliat iiiltyr' To 1 it 1)C witli- sk of it^ 1)0- of its lii-'inf o 1(1 ho is fii- cc, lioro and or for some voice of Ills ;ify tlie dis- liicdi Courts id., i;?ft; ir. J20; 11 id., iiidard so as and in the lerato tests. ' ^vitllin tlic by tlic j)ris- tlic'ory, tliu d. lUit we le return of ]>y iinpris- tliereujinu 2 Ala., lU-', absence is not expressly stated. Ills counsel were present, and made no request that he should be present. The supreme court, after ruling that judgment should be arrested, proceeded to the consid- eration of what further order should bo nuide in the case, and the order made was, that the prisoner remain in custody to await a trial ile vooo. The facts were treated as in all res[)ect3 like those in T/m People v. Perlctiis, 1 AVend., 91, in which latter case the ])risoner was confined in jail wlien the verdict was re- ceived, ^o otlier authority is cited by the Alabama court, and we tliiidc 77ie Pcajtle v. PerJclns is not a satisfactory authority upon the point now in question. Tlie direct point for judgment in tliat case was, whether the prisoner could be sentenced upon a verdict received while he was confined in jail. It was held tliatlie could not; and the court went on to advise that the ver- dict be set aside, and that there be a new trial. This advice, to 1)0 recognized as settled law in favor of the ])roposition that the prisoner was subject to a pocond trial, ought, at least, to be shown to have been followed by a second trial; but no such fact ap- pears. If a second trial had taken place, and the plea of former jeopardy overruled, whether the reviewing court, in passing u])on the ])lea, would have administered to the actual case, the substance of its own advice, as law, we do not know. In 10 La. An., 4»''>, is a case of misdemeanor, on the line of trying the ])risoner over whenever the first verdict ic quashed. There the verdict was recorded in the Franch languiige, contrary to the statute which- required it to be recorded in Eiiglish on pain of ab.solute nullity. From a Georgia standpoint, the remedy for omitting to I'ecurd the verdict in proper time and manner would be, not a second trial, but an entry on the record nunc pro tunc. In that case, however, the plea made no complaint of discharg- ing the jury, but was simply a ])lea of former conviction, which was, of course, unsupported by a record in the French language, since, according to the statute, no verdict not recorded in Eng- lish could be recognized. In the caso before us, the prisoner docs not stand upon a former verdict, but upon former jeopardy, llis complaint is, that his case was given to a jury and never legally withdrawn. "What that jury thought of his guilt or innocence has not been authentically declared; and the jury, having been discharged in his enforced al)sence, and without his consent, their opinion of \W 06 •'O AMKRICAN CRIMINAL REPORTS. ' i! 'i ill m w ^r Ilia cfuilt or innocence can never l)o lej^ally known. For fiin,'lit tliat iipjiciirs, every member of that jury wn» ready to accjuit him. His defense before it may liavo been complete and triumplmnt. The error of rccelvini; a formal verdict in the yn-ieoner's .absence would be nothiui,', if tlie jury had been retained in the box, ami reijuired to render a valiefore liis face. Many years a^o, in the couiitv of Fayette, I witnessL'(l the pollin<; of a jury on the return of a verdi(;t • f ifuilty, where the eleven jurors first called declared tlie verdict to be theirs, and only tlu^ twelfth man disowned it. The result was, that on recousidt-rinif the case, the whole; twelve au'reed to a verdict of not :^uilty,.and the prisoner was acpiitted. The motion to set aside the verdict in the case at bar was made after the denial of .". motion in arrest of judijiiujut; see .■"):] (ia., J 37; ant>x, uiid iriiscrliiol' iiecessitv. law could tlio pdwor u'h several the County •etuni of a eclui-ed the 1 it. The ole twelve iUV|uitted. at bar was lit; see r»o 1 i.s eijuiv- llus IS ail 10 price of ■ the price Wo think coiidiicted ensoii shall r the same after coii- 'everstd. \e .strictly !'ac.ti('e lias >'• l»ut that ahlo to re- L'lii uithoiit KUisiliilitic's (lie ftilk-.t ofcmlaiit id Jirt'seat at iv-'^e, courts , tliat cases , if counsel 11^' liiiiiK'lf L'l)liecl, that i tli.schargo Httin-,' !iii(l >o.soc], thoy tlofotulaiit '!• liim. If would 1)0 a per to 811 1 »- I he a co:i- 1 that one f his lci,'ul oil which ! of which '; f^ha.'l iK)t >al)ly Iiiivo fed the at- tnjios.sihlo, suit or aj) oiild havo 'o tlio de- 1, tliroiiyli ' 80 stated •>J it, we evenecl. TEOPLE V. LIGHTNER. 539 Peoi'lk v8. Liohtxkb. (4!) Ciil., 22G.) PliACTiCE : iJinchiirtfiiif/ Jiiri/ on SiihiIhi/ — J 'crdid 0/ assault irith dcadli/ weap' oit muhr indict mvtit for iwmtidt with intent to niurdti: Askiiij,' time to pU'atl is eciuivalt'iit to ploudiiiy: in wainiij,' dftVcts iii tho ar« riiipinii'iit. The court iimy iiiljudicate on Sunday tluit a jury cannot agree, and then dis* cliiavf tlicni. 1 Where it iiiiix-ai-s on tiie face of an indictment for asuault with uitent to murder timt tiie asisanlt eiiaiji'i'd was committed witli a deadly weapon, the respond- ent maj be iound giiiUy of an assault with a deadly weapon. Ai']'i:al from the County Court, County of Cohisa. The iiulictinent charifcd the defendant with liaviuir, on the 23d (>f October, ISTo, assaulted one J. L. Gaudy with a knife, with intent liiin, tlie said Gaudy, to murder. On the '27tli of Octo- ber, ISTf?, tlie defendant was called for arraignment, his counsel l)eing present. When called, he stood uj), and the indictmont with the indorsement thereon, including tho names of the wit- nesses, was read to him by the clerk, lie was then asked by the court if he was ready to plead, and answered that he was not, and asked for two days to plead, which tinxe was given him by the court. The clerk did not give the defendant a copy of the indictment, but stated to the court that he had a copy in his olHce, to which he had not attached the seal of the court. The defendant made no objection to not then receiving a copy of the indictment. On the 20tli, when the defendant was called on to ])lead, he refused to do so, and the court directed a plea of "not guilty " to be entered for liim. The cause was called for trial at the January term. The jury retired to deliberate on their verdict about seven, P. M., Saturday evening. Sunday morning, about ten o'clock, they were brought into court, and, upon being interroirated, stated to the court that there was no likelihood of being able to agree. The court, therefore, discharged the jury, and continued the cause for the term. At the April term, the defendant objected to setting the cause for trial, or taking any further proceedings in the same for the reason that the discharge of the jury at the former term operated as a release of the defendant, and because the cause had not been continued, nor any order made concern- 1: m AMERICAN CRIMINAL RKI'ORTS. '.' I hi ,i PA4 ing a retrial. TIio conrt ovcrnilod tlic ol)jtH!tioii. Tlio t'luiso was called for trial oi) the l.'Uh of A]>ril, lsT4. Tlio nr|)o.seof Hliowin^ that, l»y the irrti^uiarity of the di.schar^^e of the jnry, and hy the failure of the conrt to make an order continuiui; the cause, or for the retrial of the de- fendant, he was entitled to an ac(inittal. The court refused to receive the |)roi)osed evidence. The court sentenced the defend- ant f(»r a felony, and he a]>|)ealed. The (tther facts are stated in the opinion. T. J. Udi't and S. 7'. K'n'h\ for the a])iK'lIant, arj^^ned that there was in law no arrai;,'nnient, and cited I'enal Code, sec. !i>s, and no c»hli«,'ation to i)lead, and cited People v. Corhett, L*S Cal., 328, and that the suhseiiuent trial was a nullity; that the court could not, on Sunday, make an adjudication that the jury could not ai-ree; antl that the court could not dischari^e the jury on Suiulay, except when the act need not be preceded l»y a judicial determination that they coidd not a«^ree, as when a verdict was found, and cited 1 ])i6h. Crim. Law, sees. S71-S73. Tliey al.-o ar<^ued that, as the offense charged was defined by sec. 217 of the Penal Coile, and the ofl'enso fouiul was defined by sec. 245 of the Penal Code, that the verdict was j^ootl only for an assault; that where intent was one of the necessary in<^redients of a crime, the state could not prove, nor could the jury find a diflerent in- tent from the one laid in the indictment, and cited People v. Iteffer, 18 Cal., 037; Morman v. The State, 24 Miss., 54; and 25 IS'. Y., 3»(>. Love, Attorney General, for the people, argued that the de- fendant waived the copy of the indictment, and that even if tlio order of continiuince was void, still the court retained jurisdiction to try the cause at a subsequent term under sec. 1141 of the Penal Code. M<^Ki\sTuv, J. As a general rule, a defendant may waive any statutory rii^ht or proceetling. It is true that where there has been neither arraiijjnment nor plea, the court cannot sui)])ly an issue, even after verdict. I'ut it has been suggested by tliis court that a plea will cure the defects of an arraignment, and it lias never been decided that a formal arraignment can be waived only by plea. People v. Corhett, 28 Cal., 321). We entertain PEOl'Li: V. LIOIITNKR. 541 The vaxuo ., 54; and it tho do- vcn if tho insdictioii 41 of the lay waive lere tliere ot sii])|)]y d by tills lit, and it )e wai\'ed eatertaiu no d(Hil)t that a prisoner may expressly waive all the formal Ptcprt aiitl plead when called up for arriii<,'nment; and there can bo no ^'ood reason why a defendant (present personally and by counsel) should not be held to have waived any detiiil of the pro- ceeding's which constitute the arrai/e V. Jhnu'Jmu,o Cal., 133; I*eople v. I'Jrif/lis/i, 30 id., 214; State r. Jiohei/, S Xev., 312. In Peojth v. Min-at, 45 Cal., 284, this court said: " AVe are of opinion that under an indictment for an assault to commit murder, a conviction of an assault made with a deuiUy weai)on, to do bodily harm, cannot be supported unless it sufKciently ai)pears from the face of the indictment that the assault was made with a deadly weapon." Judgment and order affirmed. RnoDKs, J., did not express an opinion. 542 AMERICAN CRIMINAL REPORTS. 1 ,!j Statk vs. Madigan. (48 Ind., 41G.) PHACTir'E: D'tsudsK'ui'j valid hulktment nithoiit cause. The power of eiiterinfir a noUe prosequi bclonf^ to the prosecuting officer who represents the govenuuent, iuul not to the court. BiDOM':, J. Tlic record in this case shows us that a good in- dictment, for unlawfully selling intoxicating liquor, was properly found against the appellee by the grand jury, by them regularly returned into court, and the case ])laced ujmn the docket fur trial; and that '* the court of its own motion, without arraigning the defendant, without hearing the testimony, and without rea- son given, dismissed the cause and discharged c defendant, and rendered the following judgment: "It is tlu : roru con- sidered by the ci»urt that said defendant, as to said iu'iictnient, go hence without day," to all of which the state by her pro- scouting attorney properly excepted, and has ajipealed to this court. In reviewing a proceeding so erroneous, so arbitrary, and so unjudicial as the one disclosed bv this record, our dutv is very plain. The judgment is reversed; the cause is reman<]ed, with direc- tions to reinstate the case, and for further proceedings according to law. NoTT.. —Tin- niiirnl of this case niny he niaile a littli' clearer liy tlie folimviiii,' comical story, told liy l/ird ('aiiipl)ell: Cliii'f .Iiistii'c Holt haviiif^' coniinittcd ono of a brotherliood of swindlers wiio called tiieniselves ]irnpliets, named .Inlm At- kin!', to take his trial tor si'ditiiMis lantfwi.pe, another of them, nanii'd Lacy, calli'd at the Chit'f .Fustic's house in 15edford Row, and ilesired to see him. Stirniit: " My lord is unwell to-day. ami cannot see company. Jaic;/ (in a very solium tone): " Adiuaiut your master tliat I nuist see him, for I hriufj a messa;,'e to liir.; fi-nm tiie LonHi(,d." Ilic Cliief .Justice, liavin)» ordered Lacy in and lU-mandt d hi.s business, was thus addressed: "I come to you a pi-ojihet from the Lord God, who has scut mo to tliei-, and would ha\'e thee j,Tant a tiollr prnsnjiii for Jolui Atkins, liis servant, wliom thou liast sent to itri.Min." Ilolt, (\ ,T. : "'i'limi art a false jnoplu't and a lyin^r knave. If the Lord (rod had sent thee, it would have lieen t.) the Attrrney General, for he knows that it liclonyfoth not to the Chief .Tusti.i' to jrraut a )wlh-])r<»ii'iiii; t>ut L a.s Chiof .lustiec can f,'rant a. war- rant to commit thi.' to hear him company." Tliis wa« inuucdiatoly done, and Iwth i^rophets weie convicted iuid punished. Lives of the Chief Justice,i, vol. o, p. .59. If,' officer who a i»'(t()(l ill. IS properly n'i,'ul;irlj- vith (liri'c- <'^c•curcliIl^r till' fnllowiji;,' 'Hiiiiitti'il 1)11'; I'll Jnliii Af- J.iU'y. liiil",) II. Srrnnit: ViTV soli'iilll ■^sayc (() liir.i I (It'DlUllilcd II 111.' Lnivl /irasrijiii i'ov ./. ; "Tliuu I't', it wiiiil,! not to tilt' rant :i w;ir- y they jioint out in what the oatli wa? defect- i\e. I'leas ought always to present nuitter on which issue may til ^IH^FSSI ''! w ':.?1S jj % i ^t mt't iw% 'jM 54i AMERICAN CRIMINAL RErORTS. 1)0 taken, and should contain sucli a statement as will notify the opposite party what he has to meet. 2. "We think the plea that one of the grand jurors was; not a citizen is a good ])lea. Section 3910 of the code clearly ■■ a- plates that a grand juryman must he a citizen, > ' whilutlio constitution does not, in terms, require it, and only uses the word " i)ersons," yet there is nothing in this inconsistent witli the code; and this has long heen the law of this state. It wm also the common law. 1 Chit. C. L., 307; 5 I'ac. Abr., 312; I r.ish. Crim. L., 705; 3d Co. Inst., 34; 9 Te.v., r,.j; 5 I'ort. (Ala.), 4'<4:. So, too, we think the objection may he taken hy si)ecial ])lea. There are some authorities seemingly to the eil'iil iliat the challenge must he to the jury before bill tiled; hut it scCiii.s to us that this is unreasonable. How is a defendant to know that this secret inquest is proceeding to iii;unish for selling without license , iuiil the power to punish for it having been ass'imed by the state, it c si,:iii(,'(l liy the olleiiso eiise was a e eity onli- ^raiid jury- Prince vs. State. (44 Tex., m.) Practice: CiimuJatire sentences — Ihirghm) — Ejlfect of recent jMssessmt. Except l)y virtue of some statutory provision, every sentence must begin to nui from its date, and its rannlng cannot be postponed until tlie ti.'rmination of a fonner sentence. It is not error to refuse to charj,'e that " possession of stolen goods, without oth- er evidence of guilt, is not to be regiirded us presumjitive evidence of bur- ghuy." in a case where there was other CN-idence of guilt. TtKKVKS, J. The appclla,nt complains that the court erred in the instruetions given '•• the jury, and for refusing to give the instructions asked by appellant. Appellant asked two charges; one of them was given and the other was refused, aiid in place of it another charge was given l>y the court, as stated in the hill of exceptions. The charge asked and refused was, in substance, that possession of stolen goods, without other evidence cif gnilt, is not to be regarded as presumptive evidence of Inir- <;lary. The court charged the jury, in substance, that if the defendant Avas found in possession of property which was stolen from the house, and his ])ossession was recently after the theft, and that lie failed to give a reasonable account of his possession, they might take these circumstances into consideration, with all other facts and circumstances in evidence, to enable them to determine whether the defendant was guilty or not of the otl'ense with which he was charged. The instructions, taken as a whole, are as favorable to the defendant as he had any right to expect, i:i view of the evideiije in the case. It is further assigned for error that the court erred in over- ruling tlic defendant's motion for a new trial. The ground of the motion for a new trial, in addition to the grounds already noticed, is that the verdict of the jury is contrary to the law and the evidence. Witiiont discussing this assignment, we think the evidence fully supports the verdict of guilty, as found by the Jn'T- It is further assigned for error that the sentence of the conrt is erroneous, in that it is cumulative, and to I)e carried into ef- fect in the future. The character and force of thi:;. objection will Vol.. I. - :J5 54G AMERICAN CRIMINAL RErORTS. i:.-:, If p It , !i v\ more fully appear from the following entry in tlic jiulgnient of the court: "It further appearing to this court that at this term of the court the said defendant, Anderson Prince, has been tried and convicted of the offense of theft from a house, under indict- ment Xo. 1522, on the docket of Victoria county, and for which he has been sentenced to be imprisoned in the state jieiiitentiary for a term of two years, it is ordered by the court that at tiieex- l>iration of the last said term of imprisonment, and in ca^^e the judgment in this case, Xo. 1521, shall be affirmed by the supremo court of Texas, to which the defendant has a]){)ealed, then the sentence in this cause, after the execution of the sentence in cause Xo. 1522, shall be carried into execution." Courts of the highest authority have differed on the question .is to whether one term of imprisonment was to commence on the ter- mination (»f the punishment on :uiotlier charge, or whether the term should commence from the judgment and sentence of conviction and run concurrently. The former is maintained in the states of Connecticut, I*ennsylvania, Massachusetts and Cali Torn ia, and l)erhaps other states. /State v. Smith, 5 Day, 175; 2fith v. The Ouiunomcealt/i, IZ Pa. St., (IHl; JCitd v. The Vonimoinncalth.^ 11 1\g\. (Afass.), 5S1; The l\<>ple v. Forhes, 22 Cal., i:}5. On the contrary, itwas held by the supreme c^uirt of Indiana, in the case of Jfi/hf, W(H'(h)i <>f the State PriKo)) v. Allen, 11 Ind., 3S0, that, in the absence of a statutory ])r(ivisi(»n author- izing it to be done, the court had no power to order a term of imprisonment in the penitentiary to commence at a future peri- od of time. The revised statutes of Xew York, as cited by the supreme court of California, in the case of the People v. Forhci*, ti^ Ca!., 135, ])rovide that in case of two or more convictions, before sen- tence on either, the term of impristmment upon tin; second or subsequent conviction shall commence at the termination of the previo\is term of imprisonment. The criminal coik; of Ken- tucky contains substantially the same ])rovisioii. Dcfore the Kentucky code was adopted, the court of apjieal^ of that state held that the court had no ])ower, independently of a statute, to make one term of imprisonment commence at the «xi)iration of another. Jitines v. WarJ, Keejyer of tJie State Penitenthn'ij, 2 Met. (Ky.), 271. The court, referring to cases at common law. Mhere the pris- rniNCE i\ STATE. jiR]<,'inent of iit this term :is l)Oon tried imler iiulicl- ul for uliieh ]ioiiiteiiti;tiy lat iit theex- 1 in c'liso tlie the *^iii)reiiio 0(1, tlieii tlio ;nee in ciuise e question as ce on tlie ter- tliertlietorni >f conviction in the states ilirornia, and .]A//As' V. Ug iimomncaWif il., l.T). t of Indiana, V. Allen, 11 .^, '■l-l Ca!., S hefore sen- le second or lation of tlie i)de of Keii- IJcfore the :)f that state a statute, to !X])iration of iltettlittry, '1 re tl oner was sentenced to several terms of imprisonment, one to commence after the conclusion of the others, said: "but it may ho remarked that in all these cases the punishment by imprison- ment was, by law, at the discretion of the court. The tin)e tliat the ])risoner was to be confined was not determined by the jury, l)ut upon his beiui; found g'uilty of the oll'ense contained in the indictment, his punishment was discretionary with the court, and the term of his imjirisonment was ii.xed by it. Tlie court, having the power to prescribe the length of time the imprisonment wad to continue, might sentence the prisoner to several terms of im- jirisonmeiit in succession, where he was charged witli several of- fenses, because it could inllict the same amount of punishment upon him in each case separately," referring to the case of Jlc.c V. WiUcft, 4: Bnr., 325. "We think the correct rule was enunciated by the courts of In- diaiiii and Kentucky in the cases referred to. The criminal code of Texas makes no provisions authorizing the court to ac- cumulate the terms of imprisonment in cases like the [)resent. It is not shown th:it there was any connection between the theft as charged in the indictment >so. 1522, and the burglary as charged in indictment No. 1521. The code provides that the jury shall assess the jtunishment in all cases where it is not lixed by law. The judgment and sentence of the court have ref- erence to tlie ])unishme!it as assessed by the jury, and the pris- oiver is conveyed to tlie penitentiary immediately after final sen- tence to uiin of the terms of imprisoinent in case Xo. 1522. This t :itry will not reipiire a revi'rsul ()f the judgment, but it may bo refoniKMl and corrected l)y su|ireme court as provided by article o2(l^. rasclial's Dig. It is therefore ordered that the entry of the judgment in this ca>e be so reformed and corrected as that the perioil of imitrisonmeiit, to wit: two years, as fixed by the jury, shall commence from the judgment and sentence of con- viction in this case, and not from the expii'ation of tlie term of iinpris(»nmeut in case Xo. 1522, as ordered by the district Court in the entry of the judgment. The judgment is reformed and corrected uccordiniilv. lieforvicd and con't'cted. ere le pr IS- Iff 9 -Hi' id !« h t4S 54S AMERICAN CRIMINAL RErORTS. Note. — In the case of Mills r. Owi., V^ Pi\. St., GHl, tlie qnostion of tlio [lown of the court to impose sentenci' of iinin-isoiinient to licfrin on tin' oxiiinition of u jiiiov term of imprisonment was not raised by counsel or discussed by the court, lint Kucli a sentence having heen i)assed and liie ])rior judy^ment havinff hren reversed, the sni)reme court modific'il the sentence so as to make tiie term of imprisoiniiint begin to run from the exjiiratiou of yet another tenn of imprisonment to wliicli the prisoner liad been previously sentenced. 15ut this wius done without any dis- cussion as to the power of the court to pa.ss cunndative sentences. In .S7((/(' r. Smith, 5 iJay (Conn.), 17-), the prisoner was twici; conviiii'd at the same term of passinossiiilecontini;('uey. that the imiirisnniiKiit on the former seiit<'nce will be i-emitteil or >lioi1eMed, it will be made ceHani Ky the event. If the jirevious sentence is sliortnied liy a re^"-;al of tli'' judt^iiieut m- a panlon, it thru expires, and then byit>tirnis the sentence in (jne>t inn take- cflect, as if the previous one had expired liy laps.' of time. Nor will i. make any ditlei-enee, (hat the previous judfj;'ment is reverseil forerrni-. it is voidable Hilly, ami not void; and, until reversed by a judgment, it is to be deemed of full tuvi' and eliect ; and tlii)U}j;h erronemis anscil njion him on (he sixth day of September. l'-'(r_', by the ri'corder's court of the city and county of San I'rancisco. One adjiulues that he be imprisoned f'.i ninety days. Each of the others adjiidues tli.it he bi' imprisoned for I he pi'iiiul uf niiieiy days, " said term to eon. menre at the expiritlDii of previous seidences." Hav- ing: been impiisi)iied niore than ninety da\ -. he claims now to le disih oevd upon the fjfround that the sentcMices to comnieiK e at (he expiration of pre\ loiis si'iil^'ii- ces are void, for not fixing' any detinite time for tln' commeiicenuuil of the im- prisonment. rillXCE V. STATE. 549 of UiojioNnnof ■iitioii of ii i)rior tlie court, lint f;- broil ivvi'iscd, if iiiiprisoiiiiiriit niiK'ut to wliirh vitliont iiiiy (lir- •onvic'tL'il at tlio luciits. On tin; isniiliii'iit t(i lir- lii'I'll M'litriHcl this modrirf ;|i-. lent, t-nirl ^iinl • Icji'al and iimp- fiir many \r;iiv, t<'(l. In h'lh r. iinn'isonnu'iit I'ni' onucr scntfiiiiv, I U::d tlir jiid- ■rsi.'iiti'iici',-:, Ii';,m1 tlii.s sentence to 111 ii jiidgiuent, \c wlieii annllift ; illlil tlierr i> lie ictions. 'riioii-h lie ini|>ris(ini]icMt iiiaih' eertani liy til" jiid;;nii'iiter II Cille-,tii'll tak'i'-; will i. make any is vnidalili' only, lied of fnll f.ilrv t'lTor, it i- (luiti- I'ret. ,/l(il(/i)i( 1(1 till' ciniil L- re- nd ('ii(.i( i;i.ii, ,1. Sentcnei'- l>a>-i'd eolirt of the lity soiled f'M niiirty 1 1' ail id of ninety [iteners." Ilav- diseli I !;vil U|inU |llV\ lOll.N M'lll.MI- moiit of the im- As a goneriil nilo, n jiul),'nient should he cprtiiiii and tlofiiiito, aiul coniiileto in itself, so that wliat it requires to lie done may he known without resort to any tliijij,' oiit^^ide the record, yet it seems to liave heen a common jiracticc in crim;- n:d comts to enter jud>,')iiei)t.s of imprisonniontto commence at the expiration of seiiteiiees in other cases. Kliii/ r. n'ill,-es, 4 Hurr., IVJ.'); Connnoiurotlth r. haflw, 1 Viri,'. Ca-'cs, l.")l; Sld/i- r, Smilfi, '> l)ay, 17"); J,'i(ssvll r ConumiucvaUh, 7 !<(}ry. iV Hiiwle, 4><9; Jlroirn r. Conniioiiintil/Ji, 4 liawlt!, 'ioO. Ill the cii.se of /iroini r. ('(niniioiiin-alth, the sentence was that the defendant's iniprisiMinieiit should hejfiii " immediately after the expiration of the sentenco passed 111)011 him for tho larceny of the goods of Hiram .lones." 'J'lie judgment for the laiveiiy of till! goods of Hiram .hiiies was reversed on appeal, and it waa elainii'd that the other judgm.'ut therel.y heeaine a nullity. Ihit it was decided that the jiidginonfc in tho one case hi'ing in force until it wiw reversed, the expirii- tiim of the sentence occurred upon its reversal, :uid (hatthe second imprisonment hcgaii from that time. In that eiuse, therefore, a sentence wa.s held valid which was not only indefinite on its face, and could only bo ll^l.■^' deiinite by resorting to the record hi another ease, but in which the time of comminicement of the sen- tence was changed by an occurrence haiipenhig in the other ca.se after the sen- tence had heen pronounced. It is further obji'cted in the case before us, that the subsequent sentences do not refer to any other particnhn* sentence, and are thus not only indefinite themselves but do not iioiiit to any certain means by which they may be made definite, or by which the time of the eoiiimeneement of tJie impn'sonnient can be ascrtained. We have not found any case in which the sentx'nce was ui the genend language used in this case, to wit: "Said term to coninience at the expiration of previous sentences." In the state of Xew York it is provided by statute, that hi case of two or more convictions before sentence on either, the term of iniiirisoiiment upon tJie -eeond or subseiinent conviction shall commence' at th(> termination of the pi-e- vious term of iiiiprisonmiMit. 2 Hev. Stat. N. Y., 700. Hi regard to this provis- ion, tin; revisers say it is "generally declared hi the sentt'iice, 1 ait as it maybe omitted, it is deemed useful to [iiMvide for it by law." It would seem that under tiiis sfatufi', in that slate, if, in the case of two or more convictions, the sentence should bt' ill ti ■.nis simply for a specified time of imprisonment, saying notliing as to the time of its commencement m- as to any former conviction, the term of tho secund imprisonment wouhl commence at tiic ti r.nination of tht! first. The elt'ect (>t this is that under a eiimmitment on .siicli a second judgment tho oilicer would justify the imprisonment of the defeiid;uit liy showing tliat the' term of imprison- ment did not commence at the date of till .judgnii nt or coimiiitmcnt, ui conse- iHit-nf' iif U;e existenci' of .-k iirior jmlgment, but which was not mentioned in the second. We h«vt> no statute of exactly the same iniixiH in our state, but we may deduce Uie infer lice fmiu the enactment of mhIi a stadde in New York, iiiiou the riMSMnmendation ot a eommissioii of eminent luul experienced jurists, that it is nut ,ia aniniialy in crimiu.il pl^^•eedill^;•s that the tim-' of comineneenient of a trnn of iniprisiiiini«'nt sliouhi .''ix'iid upon thi> existeiv" i>f uMier jnihrment.s not -IMvitied, and to U' a,sci'rtaineil only bv referring to the records of the court. If a, julgiiii'iit is valid, as in the civsi> of Ht'-urn r. ('oiiiiinniHrdlth, above cited, which ivqiiiri • an exiunination of the reconls . f the court in anotli«f speciHed case tofi.^ the eomineiieeiiient <-i the t«nu of imprisouiueiit, we (an see no reat,on why a judgment shoiud not !« vahd m wLijeh the eojiimencemont of tho t<'rm of iiiii>ris« t. -t'. 650 AMEIUCAN CRIMINAL KErORTS. I'M oninont is to 1)0 fixoil liy iiscertaiiiiiit? ]>y rcfi'iviico to tlio rocordsof tlit; (■oini tlio tcnniimtiou of the tonus of iKiprisoimii'iit of iiiiy prior st'iitenci's tluil uiiiy luivo been imiioMcd upon the siinie defcniliint. We do not think thi' (jucHtion in iitl'ected by tli(( cireiinihtance thiit tlie scntrnci'j in this ('iu:e were prononni'ed l>y u court eri'iited by .statute, iind of iiniited and in- ferior jin'isd let ion. The utiitute erciitin^c tlie court docs not, we Ijelieve, pri'SLTiho wliat shall Ik' the form of its judynn'uts in this jiarticular. Tlie court may niiil' r its jnd^'iuents in eases within its jurisdiction in the usual form of jud;,'m('iits of criminal coiu'ts under similar circumstances. The case is not clear of embarrassment, but we think the judyment may ho sustained under the settled i)ractice in analogous cases. Tlie prisoner umst, theri'fore, be remanded. In Miller r. Alltii, 11 Ind., '-Wt, it appeared tliat Allen had been .sentence.! cm tbc 12th of XoviMuber, IS.JtJ, on two several charges, to two year.s imprisoanient on each, and that the second term of impiisoimient .should commence at the e.\- piration of tla; first. Allen liaviuK servt'd two years was discharyed on /(((//(((.v <'0^/H/,s', and the order discharyiny him was tak''n by the warden of the pn.,ou (ayainst whom the wnt of hitbeiin curjnis ran) by appeal to tin.' supreme court. The court say: *' We are of opinion that the order dischargiuy the petitioner wa.s coitccI. " In the absence of any statutory provision authorizing it to be done, thecoiirt.-i have no authority to order a term of imprisonment in the penitentiary to ciiui- mence at a future perioil of time; ;uid the order to that etVect may lit- regardid us a nullity. The judgment would Uien titand as an ordinary judgment, to lu; car- ried into eilect a.s in other ea.ses. "In the revii^ion of l.Sl.">, there was a provision, that when any person iscuu- victod of two or mor(,' otFejises at the same term of any court, the imprisDiniient to which such jiei-son shall be senb-nci'd on any si'cond or subs<'(juent conviction, shall commence at the expiration of tlu! i)receding term of his or her imprisoiunent. Kev. Stat., 1H1;>, p. 907, S 7-. Ihit there is no sujh provision in the code of \<\2. " Till! ea.se resolves it«elf into this: Tlio ])etitioner Wius sentenced U) imprisonment in the state prison for two yeaj'.s, on C!u;Ii of several iiidictmentw. lie has ken two years in tin; state jirison, and while hi> has serv(.'d out the time fixed liy thi; one sentence, he has undergone the full penidty inflicted by tiie other. Tiiere Ic- ing no statute in force providing tJuit one t*'nu of imprisonment shall conunente at tin; exi»iration of anotJier, we are of opinion Uiat botli terms commence and run concurrently. " We have been furnished with no authority on Uio question involved, and in tlio absence of authority to the contniry, it seems to us that the discharge of the peti- tionifr was correct for tlie reiusons above indicate-.")L>, I toiiiiprisoiiinrnt t«. Ill' liiis IjLin iino fixed liy ll;i; otlicr. 'J'iicn' l:i'- slijill ('Oiiuni'iuo niiiioiico and run ■olvi'd, iiiid in tlie iiryo of till.' jirti- i! miprisoiHiii'iit tontiiiry. Rii])- f'panifc felonies, s iniprisonnieiit. lit'jii.Ll and jtPii- ' o/jii'i- yciirs on lent It-yond (ivo PRINCE V. STATE. 551 ypnrs. Tlic court, after examining the English caaa which luid been citoil {Hex r. Wilkes, 4 Hurr., '.yiT)), anil pointing out that this ca. wa.s not in point, Ix- uiusc the nggiegate inipriHonnient iiiipoac'd in tiiat case did not exceed what tho court hail ix)wer to impose on one of the con\'ictioiis singly, decide that under the judgment, there was no authority to iiniiri.son the plaiiititl" for more than five years. The court say: " In this case, the extent of tlu.'conlinement had to be assessed liy the jury, within tlie periods in-escribed by law as the punishment for the of- fense, and the fourt could only iviv' I'lijudgment in coiifonnity with the verdict. The Htjitute regulating the punishiuent of otfensi's by confiiieiuent in the ptniten- tiiu-y evidently conteuiplat4' cumulative senfeniies on sui'ceijsive convictions rests in doubt, on American autliority. A iiumlier of the iitate legislatures have authorized tJiein by statut/*. Such is tho ca.se ill New York, in Kentucky, in Missouri, and some other states. 'Hie fact of the pa.vsing of sueli a statute would be some uichcation of a legislative judg- ment that without the statute, tho power did not exist. It seems to be well set- tled m Kngland that the power to jiass cumulative sentences exist.s at coiiimou law. In some of the states it is held that there are no common law criiiicp, nor is there iuiy conmion law power of administering criminal justice; f bat all the power the courts have ui criniinid matters is statutory, and the common law c, only be resorted to as atlbrding analogies, light in interpret iition of words, stat- utes, v\c., and lui iiiithoritv, periiaps, hi matters of proiM-duri'. In other statos, and aecordiiig to Air. Hisbop, in it majority of the sfntes, it Ls hehl that the com- mon law evl.--ts a.s a source of power and jurisdiction hi the admin ist ration of ciinihiiJ justice, luid that what may be punished as a crime at common law, may 1h! punished tliere to the same ext^-nt, md(>ss the law lia.s been clianged by stat- iiti'. In tliot-e stat(« where it is held tJiat the common law is not in force for tJio be held that the iiower of inflict- I puqxiso ing cumulativ of lainishing crime, it woul •iUly ■ ese iitencos does not exist except where coiifeiTcd liy statute. There 552 AMERICAN CRIMINAL REPORTS. is another miittor in this connection which ih worthy of oonsidi'rntJon. In most, it' not ill ail of tlio Ktat4>w, it is )>:un(li'(l by Htatut«i that if a iirisoncr is (•onviit<<| of tiu'L'e or nioro hircenies, or tiiree or more aet« of receinn;; stolen noods, at the wamo term of court, ho shuil be punished l)y uniiriHonnient for t^'ii or tifi-'cu yeiir.;, and in some cases, ju'riiaps niori!. Now if there exists, indeiK'ndentiy of sndia ntatute, a power in ilie court to imiwso cumulative sentences, tin' statute is un- necessary, a-s til': cunudative sentonces wliich mij^ht be iinfiosed would enuid, and in many cii.»' s exceed, the a.K'i^aavated pmiishnient allowed by the statute. 'J'lm provisidD ior this iif;;ri'avatnt;' has been susiwiuLmI until the iiexttenu, ajid thi' jirisoner allowed toj,'0 on Ills own n'co^riii/.iuice in a merely noniLual sum, and the subseiiueiit tenu ha.-! I'Mf-sed witJiout any fuitlier steps bi'lni^r taken, it is not cuinpetfiit for nnotlier .judyi^ holdinj,' the court temiionirily to impose a severe sent<'iico upon the respondent; such iutioii is to lie consideretl not nieri'ly iussiipplyuii,' till' triiiJ jud^'e's omissions, but iw practically overrulbi^,' his decision. Euijou UiVdit Bni'en, Circuit. IC. Srott ./jtihe, fur ])liiiiiti(r in error, (!ite0 Wis., til; 1 Cliitty Cr. I.., OOtJ-O, 7U1-1; 2 Hale 1'. C, 404-5. Andrnn J. Siiilf/i, Attorney (Jeneral, for tlie ])e()ple. CvMi'iiKM,, J. Weiivcr, on tlie Stli day of July, IS74, pleaded iruiltv to a cliaroc of malicious injury to a d\vellin<^ The case Mas pending in the circuit court for the county of Van IJureii, and the ]dea wis put in before the Hon. J. AV. Stonk, circuit iudo;e. On the same day Judi,'e Stomo siispended sentence until the iiri^t day of the ne.xt term, which was the ilrst ^[onday of October, IS74, the resi)ondent bein<^ allowed to give bis own recognizance to appear at that day, in tbe sum of one hundred dollars. The sentence -'as not further siispended, nor tbe recog- nizance forfeited, and defendant was not called up for sentence at tbe return term, but continued at liberty. tJon. In most, wr is coiivitUxl 11 Ki><>'i.S at tlio ['r(if1<'('u yi'iuii, 'iilly of Mitliii .statute is uil- .-K(tiit.-. Thu i.-iioii fn-funiu- SCCIll to l)(! (Ill) in till' iiI)S('iH« Uislioi) 3up- il tnjthf cause. L , )le. w4, ple.'uled . TIio case Villi I'lllTIl, om;, CM'rciiif, iteiice until ]\r()ii(lny of vii his own le liuii. PEOrLE. 553 On the 25th day of Octoher, 1S75, Jnd^'o Tk.nnant, a ju(li,'o of another circuit sitting teuipora-ily, sentenced AVeavei' to two years and .six inontlis iniprisoninent in the state prison. On this, crr(»r is In-ouglit. It is !i(»t necessary in this case to discuss the power of a difVer- ciit judge to give sentence wliere it has been omitted, and where it does not aj)pear that such omission was designed to interfere with jtunishment. There has been some dispute as to the best course to pursue under sncli circumstances. Lord Ham:, not C(>nsi(UM'ing the abstract (question, saiil it was not liis custom to give sucli sentences in cases of felony. l>ut> generally the «[UC3- tion seems to become important in view of some action or ex- jiression of tlie trial judge indicating Ids sentiments. It is said with much force, that inasmuch as there can be uo sentence witli- out the joint belief of the jury in tlie prisoner's gnilt, and of the judge in the deserts of the otH'iider, where he has any discretion to exercise, tlie views of the judge are to be respected. In the ])resent case there was no fixed i)enaUy. It might bo imprisonment in the state prison, or it might be a short impris- onment in the county jail, or a line not exceeding live hundred dol- lars, but with no minimum amount required to be imposed. lu other words, it was recognized by the legislature that sucli ofl'enses mi'dit be of triflinij eni>rmiiv, and not worthvof serious notice. Sentences may be susjieuded for various jmrposes. It maybe for the purpose of allowing steps to be taken for a new trial, or other relief, or it may be with a view of letting the otf'ender go without punishment. The release of a defendant on his own re- cognizance and without sureties, in a merely nominal amount, signifies usually the latter ])urpose. It at least is a ])laiii asser- ti(ni of the judge that he did not regard the offense as one that should receive a serious punishment. The failure to take steps during the October term of 1874 was a practical abandonment of the prosecution, and corroborates the oi)iuion that such must have been understood as the object of the suspension, aiul as the record stands, it is fairly to be inferred it was intentional. To sentence a prisoner to tlie penitentiary under such circumstances, and when the trial judge has distinctly said he ought not to be so sentenced, is not supplying his omissions, and the sentence was unauthorized, and the judgment must be reversed, and the prisoner discharged. The other justices concurred. ^ ') IMAGE EVALUATION TEST TARGET (MT-3) A V ^^ ^^X^"^ 33 WBST MAIN STRUT V»UTIR,N.Y. 14SM (716)t7a-4S03 I t 654 AMERICAN CRIMINAL REPORTS. State vs. Gray. (37 N. J., 368.) riiACTicE: Erroneous sentence. Where a prisoner, who is confined under an illegal sentence, is brought before the couii on habeas corjws, he must be discharged, and the court has no power to coiTCct the sentence or to remand the prisoner to the trial couit to be sentenced afresh. On habeas corpus. Argued at November term, 1874, before Justices Y.vs Svckkl and AVoonnuLL. Tlie defendant was convicted of adultery in the special sessions of Eso-^x county, and sentenced on the 4th of September, 1S74, to imprisonment at hard labor, in the state prison, for the term of six months. He was brought by habeas corpus before tliis court, and motion made for his discharge from custody, because tlie judgment was illegal. S. Kal'tsch, for the defendant. Yan SycKKL, J. Section IG of the act for the pu.iishment of crimes (Nix. Dig., lOo) provides that every person convicted of adultery shall be punished by fine not exceeding $100, or by im- prisonment not exceeding the term of six months. In every section of this act, prior to the IGth, the crime denounced is de- clared to be punishable by imprisonment at hard labor. The omission of these words in the 16th, 20th and 21st sec- tions, while they are found in the sections which precede and follow them, could not have been unintentional. Adultery was not indictable at common law, being punishable only in tlic ecclesiastical courts, and therefore the legality of the judgment by which the defendant was incarcerated in this case must rest wholly on the provisions of the 10th section of our act concern- ing crimes. That section authorizes imprisonment only and the words "hard labor" cajinot be added to it without enlarging the language of the statute, and increasing the measure and Beverity of the punishment. The act for the government and regulation of the state prison (Nix. Dig., 901), which is hijtai'l materia, provides that every person sentenced to hard labor and imprisonment under the laws of this state for any time not lees jrought before court lias no trial comi to XS SVCKKL Mill sessions iiiber, IS 74, or tlie term before tliis iy, because lisliment of iorivicted of ), or by im- Iri eveiy meed is de- r. d 21st scc- irecede and lultery M-as idy in tlic ! judgment ! must rest ;t concern- ly and tlio enlar:;injr asure and iment and is uxjxin labor and le uot lees STATE V. GRAY. than six months, shall be delivered to the keeper of tho state prison, but no warrant is given for the confinement therein of any one who may not be sentenced to imprisonment at hard labor. In my opinion, the only sentence which can be imposed under the 16th section is the specified fine or imprisonment, and that under such judgment the defendant could not lawfully be com- mitted to the state prison. The question which chiefly occupied the consideration of the court in this case is, whether we could pronounce the proper judgment here, or send the prisoner to the court below to be re- sentenced according to law. In litx V. Elliif, 5 Barn. «& Cress., 395, the court below ad- judged that the defendant be transi)orted for fourteen years. In error to the King's Bench, Lord Tkntkrdkn held that seven } ears' transportation was the extreme limit of the punishment, and that the judgment being erroneous, it could not be sent back to be amended. In this case it was suggested that the judgment of the inferior court might be regarded as a good judg- ment for transportation for seven years, treating it as void as to the excess, but Lord Tkxtekdex, after taking time for considera- tion, decided this point against the crown. In the later case of The King v. Bourne^ 7 Ad. & Ellis, 68, Lord Wknman, Justices Littlkdale and Patterson concurring, refused, when an improper judgment was given below, to pro- nounce such judgment as should have been given, or to remit the case to the court below for judgment, on the ground that they had no such power. This was undoubtedly the English rule, until otherwise "egulated by statute, and it has been gener- ally recognized as authority in this country. In Shej)/ierd v. Comniomcealth, 2 Mete, 419, where the judg- ment below was erroneous. Chief Ju'-'-ice Shaw cited the Eng- lish cases, and held that he could not render a new judgment, or send the case to the court below for judgment. The judgment was, therefore, simply reversed, and the pris- oner discharged, as had been done in the English cases. Stevons V. Commonwealth, 4 Mete, 360; Christian v. Commomooalth, 6 id., 530. To remedy this defect a statute was passed in Massachussetts, in 1851, authorizing the superior court either to pass judgment !!f^^ %'i ■PW W'^ m 556 AMERICAN CRIMIXAL REPORTS. !.i: in due form, or to remand the ca^e for that purpose to the in- ferior jurisdiction. Jacijiiins V. Commonwealth, 9 Cush.. 279. In Bameh v. CommouvenUh, 7 l*arr., 375, the Pennsylvania court admitted the rule of the English cases to be as I have stated it, and put its power, to modify the judgment of the court below, upon their statute of June 10, 1830. In TJie People v. Taylor, 3 Denio, 91, Chief Justice Ijiu»n. SOX, upun the authority of the Knglish and ]\[assaehu setts cases, declared that if a wrong judgment be given against a defendant, which is reversed on error, the court of review can neither give a new judgment against him, nor send the case back to the court below for a proper judgment. In Shepherd v. The People, 25 X. Y., 400, and Ratzl'ij v. The People, 29 id., 132, the court of appeals cited the case in Dunio with approbation, and held that it was oidy by force of their subsequent statute, passed in 1830, that the rule was changed. Many other cases which support this doctrine are referred to by Justice Clii fokd, in Ex parte Lange, IS "Wall., lS-1, with the remarks " that they were decided in a])])ellate tribunals, and in jurisdictions where there was no legislative act conferring any authority to impose the proper sentence, or to renuind the ])ris- oner to the court of original jurisdiction for that purpose, and, of course the oidy judgment which the aj)pellatc court could render was that of reversal, which operated to discharge the prisoner.'' In this state there is no positive law regulating this subject, nor has this question, as far as I am informed, been discussed in our courts, and I, therefore, would feel constrained to follow the almost unbroken current of decision by judges of eminejit ability, if the precise point determined in those cases was now under consideration. The writ of haheas corpus in this case does not bring up the record of the proceedings and judgment Inflow for review; it operates on the body of the defendant, and raises the single ques- tion, whether he is legally in custody. This court may, as has been done in this case, award a certio- rari to produce the record for its inspection, but it has no i)(»wcr to reverse the judgment of the inferior jurisdiction ; it can simply declare that by virtue of the sentence, if manifestly illegal, the defendant cannot be longer restrained of his liberty. The court which rendered the judgment cannot vacate it, or render a new to tlie I'li- ish.. 279. mgylvania as I have f the court ico I'uox- ■etts cases, (.lefeiulaut, iitlior i^ivo the Court ;^'y V. T/te i in Dunlo of tlioir hauled, efcrred to i, Avitli tlio lis, aud in 'I'riui^ any tlie ])ris- )se, and, of idd render jn-isoner." lis subject, scus^ed in follow tlio snt ability, low under ng uj) tlio review; it ngle ques- 1 a cet'tlo- no ])ower an simply llei,'al, the The court der a new ■H: I ;' - 1 1 STATE f. GRAY. judgment after tlie term at which it was pronounced is ended, or the judgment is executed, and the punishment partly borne. The judgment subsisting, but, being illegal and void, it is no warrant for retaining the defendant in custody, and it seems clear that no nev>' judgment can be passed in this court or the court below. In accordance with these views, the defendant was discharged from custt»dy at the last term of this court. "WooDuuLL, J., concurred. Note. — Of late yours, the question lias been fi-equently discussed in the courts whether a person confined in prison under sentence of imprisonment, on a con- viction for crime, may resort to a wTit of hihms vorinis to obtain liis liberty, whi.'re it nppears, on inspection of the whole record, that, the court which imposed the sentenct.', exceeded its authority, or had no jiurisdiction to unpose that particu- lar sentence in tJiat civse. In Jaiuiary, 187-"), application was made to the supremo court of the state of Jlidiijran for ii writ of Jinlmis cnypiis on Iwhalf of WilUam T. Undenvood. Un- d.'nvood was then confined in states jirison on h sentence passed by the recorder's court of Detroit, under a statute which was claimed to be unconstitutional and void. The court, in a per curiam opniion. hvld, that " the question sought to be raised would necessarily involve a renew of the order of the recorder's court, by vii-tue of which the prisoner is confmed; and that habeas corpa.s is not the proper remedy; and that th(! ciuestion must l)e raised by writ of cn-or, or other appropri- ate remedy. Writ denied." This is all there is of the opinion, and no author- ities arc cited or n^fen-ed to. Matter of Uiidvricooil, ■'>0 Mich., r>02. In the celebratisl Tweed case, in June;, 187.">, tlie question wius elalwrately ilis- cussed by tlie court of appeals of New York. Tweed was sentenced on an indict- ment, on twelve dirt't'rent counts, to one year's imprisonment and $'2-j0 fine on each count, in addition to fines imposed on other counts on which he was com-icted on the same iiuUctment. The maximum piuushment fixed by law for the oft'ence, of which r. diilerent one was charj,'ed in each count of the indictment, was one year's imprisoiuiient and 8"2o0 fine. The judgment pro\ided that the term of imprisonment on (\ii'h coiuit should beffin on tlu! ti'miination of the imprisonment iii!l>osed on the next precedinf; count, thus niakijig the tenns of imprisonment cumulati've, and iif,'j,'reffating twelve years from tlie datt? of the judj^ment. Tweed paid one line of •i>-">0, and 'afti.'r remauiing iji prison one year, sueil out a writ of Jiiihnis eorjiii/! to n.'fiain his liberty. Two questions are discussed in the case. Fii-st, whether the court had any power to impose cumulative sentences on a con- \ictian on a nuniber of counts for misdemeanor in the same indictment; and, secondly, whether, if it !)e determined the court had no power to impose more than the maxinmni sentence allowed by law on a conviction on one count, habeas corpus is a jiroper remedy. The court fir'st considered the question as to whetlior the writ of liaheas rorpas was a proper remedy on a sentence of imprisonment in exci.'ss of the authority of the court, .\fter a very full re\iew of the authorities, tlie court considered that habeas corjuis was a proper remedy, concluding their opijiion on that poijit in these words: " 1 see no escape fi'om Hk' conclusion that the jurisiliction cf the court of oyer and terminer, to give the judgment or judg* ^WT 568 AMERICAN CRIMINAL REPORTS. I '\i-' ments which nppcnr upon the record rphimocl to this court, and by virtue of which the reliitor is hold, was a proper subject of inquiiy upon the return of the writ of habeas corpus. It waa the only fact which the prisoner conld allefro; for whatever eirors the court may have committed prior to the judfnnent, if the coui-t had power to make the judgment, they can only be reviewed by wit of eiTor. ~ i other words, upon the writ of habeas cm-pus, the court could not jro behind t.ie judffinent; but, upon the whole record, the question was whether the judgment was warranted by law, and within the jurisdiction of the court. " Tliis conclusion, as to the jwtency and efficiency of the writ of habeas corpus to test the jurisdiction of everj' court in tiie land, assuminp by its judprmeiits, de- crees and process to deprive tlie citizen of his liberty, and wliich is entirely con- sistent with the historj', uses and sacredness of the writ, and it.s connection with civil liberty and free government, makes it necessary to consider the questions made upon the record, of tlie convictions and judjsjments returned to us. Our ex- amination wU be confined to tiiat record. We shall not assume to po back of it for any purpose, for by it must the jurisdiction, as challenged, be tried. Bearing; in mind the distinction between judgments merely informal or erroneous, and those void as without jurisdiction, coram nonjiidicc, the question is, had the court of oyer and tenniner the power to pronounce the several judgments, and inflict the accunuilated pimishmcnts, upon the conviction of the prisoner of the oit'enses, AS charged in the single indictment? " On tlie other V)rancJi of the case, the court reached the conchision that the court had no power to impose more than one fine of $250 and one year's imprisonment and Tweed was accordingly discharged. Being a case of ver>' great public intor- Cflt, in which the most eminent counsel of the New York bar was engaged, the Ijreatest resoarch, leaniing and ability were displayed in the case. All the author- ities will be foimd collected m it. A fidl report of the case will be found in 60 N. Y., .WO. In October, lf parte. Laiir/e, \>< Wa. 103; S. €., 2 (Jreen Crim. Bep., 10.?. The petitioner Lange Imd licen convicted in the U. S. circiit court for the south- ern district of New York of embezzling certain mail bagf. For tliis offense tlie law prescribes impris'innient for not more than one year, or a fine of not more than two hundred dollars, or less than ten. The judge imposed a sentence of one year's imprisonment and a fine of two hmidred doUare. Lange paid the fine which was duly paid over to the United States tre.xsury. Five days aft<'r tlie dt- fcndant's conunitment under the first judgment he was brought before the court and an order entered vacating the first sentence, and the defendajit wnn again sentenced to one year's imprisonment from that date. Lange petitioned the su- premo court for writs of habeas corpus and cetiiorari, wliii h wore idlowed. The return of the marshal showed that he held Lange in custody by %nitue of tlie lat- ter judgment. The main question discussed by the court is, the authority of the circuit court to award the second sentence, and it wa.s held that it had no such au- thority, and tlio sentence was illegal and void. The question of the right of the supreme court to examine into the matter on habeas corpus was dismissed by the court in these words: " The authority of this court in such case, under the constitution of the United States and the fourteenth section of the judiciary act of 11(^9, to issue this writ and to examine the proceedings in the inferior court so far as may lie necessary to as- certaiji whether the court has exceeded ite authority, is no longer open to qucs- BRIESWICK V. MAYOR. 559 tion. The cases cited at Uie end of tiiis paragraph, will, when examined, estab- lish this proposition m far tm judicial decision can establish it. United States v. Hamilton, 3 Doll., 17; BurfonVs Case, 3 Cranch, 448; Exjnnie Bollman, 4 id., 75; Expanse Watkins, 3 Pet., 193; S. C, 7 Pet., 5G8; Ex parte. Metager, 5 How., 307; Ex parte Milligan, 4 Wall., 2; Ex jxDie McCardk, 6 id., 318; S. C, 7 id., 506; Ex parte Yerger, 8 id., 85. " Disclaitnini^' any assertion of a jontnil power of rexnew over the judgments of the inferior courts in criminal case; , by the use of the writ of habeas corpus, or otherwise, we proceed to examine the record of the case in tlie circuit couit, and tJie return of the marshal, in whose custody the prisoner is foimd, to ascertain whether they show that the court below haii (my power to render the judgment by which the prisoner is held." m i ■ * "■ '. .. 1 Brieswick vs. Mayou, etc., of Bhunswick. (51 Ga., 639.) Practice: Inqmsonment in default of fine — Constitutional law. Power U) punish by fine or imprisonment does not include power to imprison in default of payment of a fine. A statute vididating all onlinances of a city held obnoxious to a constitutional provision that no statute should embracf more than one subject matter. Wakner, J. It appears from tlie record and bill of exceptions in this case, that Robert Brieswick and Cyrus Shelton, two boys under fourteen years of age, were imprisoned in the guard-house of the city of Brunswick; that they were brought before the judge of the superior court on a writ of haheas corpit^, on the allegation in their petition therefor, that their imprisonment wus illegal. The court, after examining into the cause of their capture and detention, on the return of the haheas corpus^ dis- charged them from the custody of the officer who had them in charge. Tiicy were again arrested and imprisoned in the guard- house of said city, and again brought before the judge of the superior court on a second writ of haheas corjms, on the return of which, it appeared by the answer of the guard-house keeper, that he detained them in custody by virtue of a warrant of com- mitment issued by the mayor of said city, dated the -Ith of June, 1S73; the order of discharge for the same alleged offense being dated 23d of May, 1S73. The warrant of commitment recited that the defendants had been found guilty on the 23d day of May, 1S73, of violating an ordinance of the city " to prevent pei- 6011S from indecently exposing themselves or others," and sen- [ij 660 AMERICAN CRIMINAL REPORTS. tenced to pay a fine of $5.00, or in default thereof, to be confined in the guard-liouse ten days; and each having failed and refused to pay said line, respectively; and whereas, the said Shelton and Brieswick have been confined by you in said guard-house for the Bpace of three days; these are, therefore, to coniniand you to se- cure the bodies of the said Shelton and IJrieswick, and keep them, and each of them, in the guard-house seven days from the date of their reception. There does not ap])ear to have been any warrant issued for their arrest, founded on the affidavit of any person, but timply a iu>tico served upon them, signed by the city marshal, ref[U! ring them to appear before the i)olice court, stating that they were charged with the oft'onse of " bathing at a wharf known as the Cotton Press." On hearing the secoiul ha- beas corjnis, the court refused to discharge them, aiul remanded them to be imprisoned, whereupon the defemlantg excepted. In view of the facts disclosed by the record in this case, it mav well be doubted whether the two boys who were arrested and imprisoned were not dei)rivcd of their liberty witiiout due pro- cess of law. See Code, sections 471-4, 471.5, 4723, 4724, 4725. There was no affidavit made by any person charging tliem witli having violated any ordinance of the city prior tu tlieir arrest and detention. They were simply notified to appear before the police court as Ijeing charged with "bathing at the wharf known as the Cotton Press." They were charged with and imprisoned for having committed the ofl'ense jointly, whereas the ofi'onse was not joint, but several as to each one of them. The war- rant of commitment recites that they were found guilty of vio- lating an ordinance of the city " to prevent persons from itule- cently exposing themselves. or others." The iir^t section of tlie ordinance of the city, number fc'ghty-five, prohihits any ])er»on from wilfully making any indecent or public exposure of his or her ]>erson, or of any other person. The seconrl section of said ordinance prohibits any person from swimming or bathing in the river opposite the city, at any place below south of the mouth of the canal, between daylight in the morning atul eight o'clock in the evening, except in bath houses or in bath dresses. Tlieso two sections recognize two distinct offenses, to wit, wilfully mak- ing an indecent or public exposure of the person, swimming or bathing at certain described points, except in bath houses or in bath dresses. For which oiieuse were the boys imprisoned? BRIESWICK c. MAYOR. 501 be confined ukI rofnscd Slielton and use fur tlie 1 you to se- , iind keep ys from the been any IV it of any •ned by tlie )olice court, jatliiut,' at a second /xi- d remanded :cepted. cu.se, it may rre»ted and ut due pro- 47i>4, 472',. : tliem with their arrest r before the harf known imprisoned the offense Tlie war- lilty of vio- from inde- :5tion of the any pei'son ire of his or tion of said • bathin;,' in f the mouth ii^ht o'clock ses. These ilfully nndv- rimmin;; or liouses or in imprisoned? The notice states that they were charged witli the offense of ♦' bathing at tlie wharf known as the Cotton Press." The maj- or's warrant of commitment recites that they were found guilty of violating the ordinance which prohibited an indecent exposure of themselves. The mayor's warrant of commitment also re- cites that the boys had been found guilty of that offense, and sentenced to i)ay a fine of §5.00, or, in default thereof, to be con- fined in the guard-houe3 ten days; that appears to have been the judgment of the court, but the mayor further recites that as they had been confined three days in the guard-house, they were to be imprisoned only seven days. Under what judgment of any court did the nuiyor derive his authority to imprison the boys for seven days? The judgment of the court under which he pretended to act was that they should be imprisoned ten days, and that was the only judgment under which he had any pre- tense of authority to imi)rison them at all. The three days' im- prisonment, for which he undertook to give them credit, was declared by the judge of the superior court to have been illegal. 1. But we place our judgment in this case on the ground that the imprisonment of the boys was illegal, because the police court of the city of lirunswick had no ])ower or authority conferred upon it liy its charter to coerce the payment of the fine imposed by imprisonment. Tiie act of 27th August, 1872, consolidating and amending the several acts incorporating the city of Brunswick, provides by the 38th section thereof, that the police court shall have cogni- zance of all ott'enses against the ordinances, by-laws, rules and regulations of said city, and the laws of this state touching said city, with power to infiict the proper jjunishment by tines, im- prisonment, labor, or other penalty prescribed by such ordi- nances, by-laws, rules and regulations, from time to time, and to enforce the same by mittimus, directed to the chief marshal of the city, or any lawful constable thereof, or to the keeper of the guard house, when necessary. The police court of the city, un- der its charter, had the power and authority to have inflicted pun ishment l>y imposing the fine prescribed by the ordinance for its violation, but did not have the power and authority to coerce the payment of such fine by the imprisonment of the party or par- ties on whom such fine was imposed. The city council have the power, nnder its charter, to prescribe the punishment for a vio- VuL. I.-3G \.' 5C2 AMERICAN CRIMINAL REPORTS. lation of the ordinances of tlie city, either by fine or hy iuipi-is- onment. "When the jmnishnient inflicted is inipri.sonnient, that is the jienalty to be enforced. When the penalty is a iinc, tliut itt the penalty to be enforced in the manner provided by law; but tlie charter does not confer r.pon the city conmril of J'.ruuswick the power and authority to j)ass an ordinance to enforce the col- lection of u line by imprisoning the 2>arty who fails to pay it, un- til he shall do so, or for any specified number of days until he sliall do so. The city council have the power and authority to pass an ordiiumce inflicting the proper punishment by iuipris- onment for a violation of 'Its ordinances, but have not the jH»wor and authority, under its charter, to pass an ordiiumce to enforce the collection of a fine by imprisonment, or to imprison any per- son for tlie non-payment of a fine im])osed on him. 2. The 5Sth section of the act does not helj) the matter. TJy the 4th section of the 3d article, paragraph 5 of the constitution of 18(!S, it is declared: "Nor shall any law or ordinance ])as>s which refers to more than one subject matter, or contains mutter diflerentfrom what is expressed in the title thereof.'' The onlv subject matter referred to iji the title of the act is, " to consoli- date and amend the several acts incorjiorating the city of Bruns- wick, and foi" other purpt)ses therein mentioned." The other subject matter contained in the act is to make valid and conflrm "all the acts and ordinances of the mayor and citv council of the city of Brunswick, heretofore passed, and not in conflict with the constitution of the state of Georgia or of the United States,'' whether these acts and ordinances had l)ceri au- thorized by, or werc in conformity with, the laws of this state or not. The 5Sth section of the act, it will be ])erceived, introducL's into the body of it a distinct and quite comi)rehensive subject matter, embracitig all the ordinances of the city which had there- tofore been i)assed. Did the general assembly understaiid when the act to consolidate and ameiul the .several acts itieorporating the city of I'runswick was passed, that the other subject matter embraced in it, of confirming and making valid all the acts and ordinances of the mayor ajul city council of Ijrunswick, was also made a part of that law? Did the general assembly have before it these ordinances which were confirmed and made valid by that act? Did it know and understand what were the several provis- ions of these ordinanceb? It was just such legislation as this LARK c. STATE. 503 )!• by iinpi'isi- onnieiit, that 6 a iiiii", tliiit 1 by biw; but f Jlrunswic'k "orcc the cul- to pay it, iin- ibiys until lie authority to it by iuiiiris- not the ))o\ver ice to enforce rison any per- ; matter. l>y i) constitution I'dinance ])as8 n tains matter '." The only , " to consoli- eity of Bruns- to make valid ayor ami city h1, and not in ; rcaoliPil, the tonn of imprisonment which is sot up in tlio ivtnni to tho writ of hahcan corpaa haw expu-ed. I'ri'Hnininjf the imprisoniUHnt to be at an end, becanse the sentence has ex- pireih would be to tak'' for tp'anted the validity of tJio sentence wliidi k- tlie very matter in qucKtion. Br.KCKi.Kv, J. The relator, plaintifi' in error, was sentenced for simple larceny by the county court of Eichinond, in July, 1874. The terms of the sentence were, " to work in the chain- (ran" on the streets of Augusta, for twelve months." lie sued out a writ of /lahcts rorjius in April, 1875, on the ground that his detention was under this sentence, and that the same was illeii-al. The return to the writ set up the sentence as legal war- rant and authority. The judge below refused a discharge, and on that refusal a writ of error was prosecuted to this court, and filed here in ^Fay, 1875. 1. On the call of the case for argument, in the present montli of November, the defendant in error moved to dismiss it, be- cause the sentence had expired by its own limit^ition. The mo- tion was overruled. Jt did not appear from the record, or other- wise, that the imprisonment had ceased. It could not be pre- sumed to have ceased, without deciding on the question made by the writ of error, namely, the legality of the sentence. An Ti T; V? 'Wf 664 AMERICAN CRIMINAL REPORTS. illef,'nl imi)risonmciit is not to be supposed to terminate in n vol- untiuy diselinrgc. It is tlie duty of judicial tribiinal-s, wliou ad- minibtering the remedy of /itdfc/fM c ^rjtuft, to see that it is iiiade ctrectual l)y proper legal instrumentality, and to tal' [tower of the court to refusf it. Tlie proper time to poll the jury is after the venUct has been annouuceil. CuATUAM Superior Court. May term, 1S74. Before Judge Bakti.k'it. Tilton was placed on trial for the offense of an assault and bat- tery, lie pleaded not guilty. The jury found to the coiitrarv. After the verdict had been read, but before it had Ijeen reconktl, in the presence of the jury, the defendant moved that they bo polled. The motion was overruled upon the ground that it caino too late. The defendant moved for a new trial on account uf error in this decision. The motion was overruled, and the de- fendant excepted. A. B. Smith, for plaintiff in error. Albert li. Lamar, Solicitor General, for the state. V-^i latc ill fi vol- ills, Avliou ad- it it is iii!i<]o e iiutliiii^' fur of ail ill(';r;il luiicnt indi'f. iberh-, and if tlicre iiiiglit o scttU', l)y u 1(1 tliijse will I 'fjxix issiiod. Ignioiit. l^it o dismiss tlic inju'isonnieiit , AVOllld lif to li is the very portonce. Rkp.] jmy at tlio proper rcfusi' it. umouiiLL'tl Before Judge isault and Lat- » the contrary. Ijeeii recorded, 1 that they Ijo d that it came on acne by, miybe ho would have allowed it. 2. But we are of the opinion that in criminal cases the privi- lege of ])olling a jury is a legal right in the defendant, and dooo not depend on the discretion of the court. In an experience of thirty years at the bar, I have never known it denied to a pris- oner demanding it, and my brethren, one of whom lias an expe- rience of nearly fifty years, say the same. And this seema to bo the settled rule. 1 Wend., 91; IS John., 1S7; 2 Ala., 102; 2 Bale, r. C, 299, 300. The cases in this court, where the privilege has been said to depend on the discretion of the court, were all civil cases, and the court has distinctly confined the ruling to civil cases. 6 Ga., 464; 22 id., 431; 41 id., 465; 31 id., 601. Judgment reversed. W.MtD V8. People. (30 Midi., IIG.) Waive of jv.nj in misdnncanor — Constitutional law. On Uie triiJ of a crimiiml complaint for an aasaalt and battery, before a justice of the peace, a defeiulant may waive his right to a jury, where he expressly so elects, and if he does bo, a trial without a jury is not a violation of liis constitutional rights. Erkou to Kent Circuit. 0. 11. Look, for ])laintifi' in error. Isaac Marston, Attorney General, for the people. -" n I ) -m 1^ 666 AMERICAX CRIMINAL REPORTS. . d m CiiiMSTiAxcv, J. The only question in this case is, wlieii a deft'iulant brought before Ji justice of the peace upon a criiuiiuil coniphxiiit for a simple assault and battery, triable by a ju.stice court, under chapter Oi of the lievised Statutes of ISif, (("omp. L. of 1871, ch. 17l>), having ])lea(led nitt guilty, and being asked by the justice if he wished a trial by a jury, declares that he dues not, and submits to a trial without calling for a jury, whether, under our constitution, a trial by the justice without a jury U valid, or whether it must be regarded as a viulation of the dc- ' fendant's constitutional rights. The statute in question (sec. 0, ch. 170, Comp. L. of IsTl) not only provides that he may be tried by the justice, under such circumstances, but that the justice may proceed to try the is?-ue ami determine the case, " if no jury be demanded.'' Tlxti constitution (art. 0, sec. IS) ])rovides that justices of the peace " shall have such criminal jurisdiction, and i>erform sudi duties as shall be prescribed by the legislature." ]iut the sec- tion upon which the plaintifl' in error relies is section 'J7 of the same article, which is in these words: "The trial by jury shall remain; but shall be deemed to be waived in all civil cases, ■unless demanded by one of the parties, in such maimer as shall be prescribed by law." It is very clear that this section, in its application to criminal cases, does not authorize any implied waiver of a jury from tlie silence of a defendant, or his mere failure to demand a jury, ami in my opinion, though the point does not arise here, in a criiui- 3ial case, where, under our hunuine system of administering criminal law, nothing is to be inferred against a prisoner for his; standing mute; he cannot proj^erly be regarded as having waived a jury, a trial by which is generally esteemed a privilege, by merely failing to demand it, notwithstanding the statute cited so provides. But upon this point, as it is not necessarily in- volved, my brethren express no opinion. Jiut it is further in- sisted by the plaintiil' in error, that the provisions of secti()n 27, article S of the constitution, above cited, expressly providing that tlic right of trial by jury shall be deemed to be waived in civil cases, unless denuvnded, etc., involves an inqdied i)rohibition against any waiver of trial by jury in a criminal cause. I'ut while I think it may be regarded as an implied prohibition against Laving the mere failure of the defendant to demand a jury trial STATE r. CASSADY. 567 fl se is, M-Leii a >n II criiuinal I'.V H jii.xtice bfiiig a^kod 5 that Iieddfs iry, whetliLT, nit a jiii-y U m ol' tho dc- ■ L. of ]s:i) e, muler hiic'li try tlic ijr-ue iritices of tlie )crfonii suL'Ii But tlie i^cc. oil L'7 of tlie '*y j'""y t^liall I civil ca.soii, liner as shall n to criminal urj from the iclii jury, ami i, in a crinii- (liuinistcriiii,' sonor fur his ivini^ waived privilf^re, hy statute cited >ccssarily in- i further in- if section i!7, ly providing )e waived iu 1 prohibition . I'ut while tion aii'ain.st a jury trial treated as a waiver of such trial, I do not think there is anything in the pro^ ision which prevents the defendant from expressly electing whether lie will liavo a jury trial or be tried by the court without a jury. The law secures to him the right of being tried in either way, as he may ]u-efer, and though a trial by jury might generally be considered as more advantageous to a defendant, yet, he may sometimes prefer to be tried by the court, without a jury; and, if he deems it a privilege to be thus tried, it certainly cannot be any violation of his constitutional rights to allow him to make that election, by an express declaration that he does not wish to be tried by a jury. There is nothing in Jlill v. Peojyle, IG Mich., 351, which con- flicts with this conclusion. The judgment of the circuit court affirming the judgment of the justice must therefore be affirmed. The other justices concurred. State vs. Cassadt. (12 Kan., 550.) IxFOiiMATiox: ConstitutioiKil vUjhf — JiirlsiJictlon of act.i in (mother state — Error in chanje requested — Kjrect of recent possession — Arraiffiiiiient ami ith'ii. The ivsiiondoiit wits charj^od, in an infonnation for burtjlaiy aiul larconj', a.s a lirincipal. He Wiis found guilty of Ix'ing accessory before the fact to strand larceny. The statute penults an accessory to be charured and convicted as if he were a principal. Ilehl, not in deroj^ation of his constitutional rifxht "to deniaml the naturi^ and cause of the accusation ayaiust hiiu," and that there was no error in the verdict. Whether a person who in anotiier state becomes accessoiy before the fact to a felony committed in Kansas can bo punished under the Kansas statutes, hav'injjT done himself no act within the state, quwre. If there is any en'or in a reiinest to charge, or if a re(iuest to charge in the di3- junctive is asked, either branch of which is erroneous, Uie whole charge is proper'., efnsed. A charge ♦hat " the popsession of stolen goods recently after they are stolen ii a strong im'sumption of guilt," is not eiror. Possession of property nvently stolen nudvcs out a prima fueie case of guilt, and throws upon tiic defendant the burden of explaining that possession. Where there was no lUTaignmcnt luid i)lea, but tlie respondent, being pre- ■ffTiff .1 4i > .11 ■'if i 56S AMERICAN CRIMINAL REPORTS. sent, annonnced himself ready for trial, and went to trial, without o]iji>c- tion, tiic oinii«sion of the arraignment and plea will not avail tlio resiiouiluut on a motion for a now trial or in arrest of judgment. liiiKWKK, J. Defendatit -was tried in the district court of Atchison county, on an information charging burglarv and grand larceny. Tlie jury found him gnilty of being *' an ac(*es!5ory l»e- fore tlie fact to grand hvrceny." Upon this verdict he was sen- tenced to two years' imprisonment. Several questions are jire- sented in the record. The first important one is, whether under an information charging a party as principal, he can he convicted of being an accessory before the fact'^ In other words, must not the ijiformation charge him as accessor}', and not as principuH Section 115 of the Code of Criminal Procedure (Gen. Stat., S?)9) provides that '"any person who counsels, aids or abets in the commission of any oliense may be charged, tried and convicted in the same manner as if he were a principal." See, also, jj 2s7 of the crimes act, (Jen. Stat., 380, ch. 31. The intentiitn of the leafislature in these sections is obvious. It authorizes the cliar<:- ingof an accessory before the fact as a princijial. Ti»e intention being ])lain, the ([uestion of power is raised. Sec. 10 of the bill of rights ((iren. Stat., 3i>) declares that "In all prosecutions, the accused shall be allowed .... to demand the nature and cause of the accusation against him." Hence couiisel say: " Defend- ant is charged as principal, and not as accessory before the fact, and did not know and could not have known, under the informa- tion, that any evidence would be introduced tending to convict him as accessory. Jle had a right to demand the "nature and cause of the accusation against him," and being charged as ])rinci- pal, was prepared to defend himself against such charge, and no other. This section does not attempt to require tiiat the ])ar- ticular couTiection an accused lias with the otlense charged shall l)e stated in the indictment or information. It does not attempt to indicate liow much of detail or s])eeification is essential to a criminal pleading. It requires of course a statement of the crime charged. Under an information for larceny, there could be no conviction for manslaughter. liut when the critne com- mitted is charged — larceiiy, as in this case — then it is not made imperative by this section that the information state the particular acts done or part ]>erformed by the accused in c<»unec- tiou therewith. It is true, that at common law a distinction was 1fl STATE V. CASSADY. 66r/ . without o1)jt>c. the ivsiioiuluut •let court of rv and ^'raiid ^ic'ct'ssory he- Iie was sen- >iis aro ])re- letlier under 1)0 convicted dfi, must not »s principuH n. Stat., 8?>1)) abets in tlie nd convicted e, also, ^ 2S7 iiitioii of the ?s the chari,'. 'ho intention [0 of the hill editions, tiie I'c and cause : " Defend- foro the fact, the infonna- ,i; to convict '* nature and !:ed aspi-inci- arifc, and no liat tlie ]>iir- hari^ed shall not attein])t :ssontial to a nent of the there could crime com- ;n it is not on state the 1 in connec- ti act ion was made between principals and accessories, according to the extent of participation in the offense. The immediate actor was called principal in the first degree; the one present aiding and abet- ting, principal in the second degree; the one procuring, counsel- ing or commanding the offense, though absent at the time of its commission, accessory before the fact; and the one knowing of the felony, and receiving and assisting the felon, accessory after the fact. It is also true that under an indictment charging one as prin- cii)al, it was impossible to convict him as accessory, and vice vemi. 1 Chit. Cr. Law, 272; Hex v. Plant, 7 Car. & P., 575; Whart. Cr. Law, § 114. And as there could be no accessory without a principal, the former could not, against his consent, be convicted, except jointly with or after the latter. 1 Bish. Cr. Law, §§ C07, 0(!8. Yet these distinctions were all based upon the relation of the accused to the crime. In the commission of one offense, all four classes might participate. The distinctions were arbitrary, and their enforcemetit, and the rules growiuij out of them, often operated to the hindrance of justice. Yet, wise or unwise, the}' simply classified participants in one offense. And being arbitrary, they may all be abolished, and all partici- pants in a crime bo declared equally and alike guilty, without regard to their proximity thereto, or the extent of their partici- pation therein. The legislature has not attempted to say that the crime committed shall not be charged; that the "nature and cause of the accusation " shall not be stated; but has simply de- clared what acts shall render one g'>-ilty of this crime. The one acting, the one present, aiding and abetting, and the one absent, counseling, aiding and abetting, are declared to be ecpially and alike guilty. Nor is this the introduction of a new or harsh rule. At common law, if two engaged in the commission of an ordinary felony, and in furtherance of it, one committed murder, both were declared equally guilty thereof. The common con- sent to do wrong rendered each responsible for all acts done in furtherance of the wrongful purpose Under our statutes, one indicted for an offense consisting of different degrees may be convicted of the degree charged, or of any degree inferior there- to, or of an attempt to commit the offense. Crim. Code, § 121. A somewhat similar question was before the court in the case of McFarland v. The State, i Kan., 68, and the power of the fl mf it *'t 1 I 5 570 AMERICAN CRIMINAL REPORTS. legislature to provide that property stolen outside and brouglit into this state could be charged to have been stijlen within the state was sustained. We see, therefttre, no error in tlie ruling of the district court upon tliis point. The verdict niiglit ]tr()p. erly have been simply guilty of larceny. Yet sitecifyiiig tlio particular connection of defendant with tlie crime did not vitiate the verdict. It wrought no prejudice to his r:^ ■. s. Lewln v. The State, 4 Kan., 301). A second very important question presented and discussed by counsel in their brief is, whether a person, who, out of the state, becomes an accessory before tlie fact to a felony committed witliin the state, can be i)unished under our statutes. Does tlie power of the state reach to such extra-territorial acts? And if it doe-*, has the state by statute assumed to exercise this ])ower? That this (piestion is one of no little difficulty, see the cases of Johm V. The State, ID Ind., 4^21; The State v. Wi/clof, 31 N. J., 05; 1 Bish. on Crim. Law, § 111. We do not care to enter into an examination of this question until it is fairly before us; and as the record now stands, we think the instructions aimed at this question were ])roperly refused on other grounds. The testimony is not preserved. In the bill of excej)tions it is stated that the de- fendant ottered evidence tending to prove that the first C(»nnection of any kind he ever had with the stolen ])roperty was in the state of jMissouri, and also tending to i)rove that he had not aided, abet- ted or counseled any one in the state of Kansas in the commis- sion of the oU'ense, and asked the following instruction : That " if the jury believe the said skins were actually stolen, and believe that the lirst connection defendant had with them was in the state of Missouri, then they must ac([uit the defendant; and if they have any doubt about this fact they must acquit the defendant." This instruction, as tendered, the court refused, but gave it mod- ified by omitting the last clause, and adding to the rest of the instruction this jtroviso: ''unless you further believe from the evidence he counseled, aided and abetted the taking of the same before they were so taken." It is evident the instruction asked was wrong. The defendant is not entitled to the benefit of every doubt, but only of a reasonable dr()|). icifyiiig tlie I iKtt vitiate Lew In V. iscnssetl hy f tlic state, tted witliin s the jHtwer J if it doe*, wer? That js of rfdlins 1 :X. J., 05; iter into an us; ami as iiiit'd at this e testimony tliut tlie tle- ; connection ill the.ertij ,'nores that I defendant guilty. The verdict demonstrates the impropriety of the in- strnction. The addition made by the judge, uncjuestionably good law in tiic abstract, appears from the verdict to have been appro- priate to the particular facts of this case. The other instruction bearing upon this (question is thus presented in the bill of excep- tions: "And the said defendant having ofJered some evidence tending to show that he never had said furs so alleged to have been stolen in his possession or under his control in the state of Kansas, and also having offered some evidence tending to show that he had not aided, counseled or abetted any person in the com- mission of said offense in the state of Kansas, asked the follow- ing instruction: 'If the jury have any reasonable doubt that the defendant ever had the furs and skins alleged to have been stolen in his possession in the state of Kansas, or any reasonable doubt tliat he committed the oflense charged against him in the Btate of Kansas, either as ])rincipal or as accessory before the fact, then they must acquit the defendant.' " This instruction was re- fused. It ])rescnts in a disjunctive statement two conditions of acquittal. Of course if there was error in either, the instruction as a whole was properly refused. Xow the first part of this in- struction is subject to the same criticism as that i)laced upon the instruction just considered. It ignores that of which the jury found the defendant guilty, and directs ac(pittal upon matters which, in the view taken by the jury of the testimony, and prop- erly so taken, as we must presume in the absence of the evidence, were wholly immaterial. It directs an acquittal if the jury have reasonable doubt of his ever having the stolen property in his possession in the state of Kansas. But if he counseled, aided and abetted the stealing, it matters not whether he ever had pos- session anywliere of the stolen prc>])erty. It lifts a single cir- cumstance, which may have been wholly unimportant, into an essential and determining consideration. "We think, therefore, the court might proj)erly have refused these instructions without considering the question discussed by counsel. A third question is thus presented in the bill of exceptions: "The defendant having offered some evidence tending to prove that the only connection he had with said alleged offense was, the possession of said furs alleged to have been stolen in the state of Missouri, recently after they had been stolen, asked the following instruction: * That proof of possession of the furs by defendant 1- !(; 672 AMERICAN CRIMINAL REPORTS. in tlie state of Missouri, recently after they had been stolen, unac- companieU l»y any other circumstance of guilt, is not suiHcient to throw the burden of proof upon the defendant to show such pog. session lawful, and is not sutKcient of itself to authorize a con- viction.' " Tliis was refused. On the contrary, at the instance of the prosecuting attorney, the court instructed the jury, that " the possession of stolen goods recently after they are stolen is a strong ])resuniption of guilt." That the rule that possession of property recently stolen nnvkes out a prima fade case of guilt and throws upon the defendant the burden of explaining that jios- session, is one of long standing and ab ndantly fortified by au- thorities, no one can ijuestion. See aniong others, 1 Greenl. on Ev., § 34; liurrill on Circumstantial Ev., 440, and cases cited in notes; 1 Phil, on Ev., G34, and notes, with cases cited therein; and among later cases, Momlra(jon v. The State, 33 Tex., 460; Price's Case, 21 (iratt. (Va.), S64; Unger v. The State, 42 .Miss., (542; State v. Tamer, G5 X. C, 502; KnuJccrhocker v. I\oj,U,i'i X. Y., 177. Such possession is said to raise a presumption of guilt, and if unexplained, is sufficient to warrant a conviction. Some attempts liave been made to qualify or limit this rule. In The State v. Hoihje, 50 N. 11., 510, it was held that this pa-, sumption of guilt was not a presumption of law, but one of fact. In IWqile V. Chamhers, 18 Cal, 382; People v. Ah-ki, 20 id., 172; PeiqiU V. Antonio, 27 id., 404; and Conkin right v. The People, 35 111., 204, it was held that the recent ])ossessiun of stolen property, unaccompanied by other circumstances of guilt, is not sufficient to warrant a conviction. In 3 (Jreeid. Ev., «cc. 31, it is intimated that the rule as given in 1 Greeid., sec. 34, heretofore cited, is stated too broadly, and that perhaps there should be something more than recent possession to justify a verdict of guilty. Still the overwhelming weight of authority is with the rule as stated; and, as fairly and reasonably interpre- ted, we think it ought to stand. It does not assume that tliero is any certain time, possession within which is recent })o»session, and therefore proof of guilt. It is not the statement of an abso- lute and conclusive legal ])resumption. It is a ])resumption which is strong or weak according to the nature of the projierty stolen, the time aTid ]>lace of the larceny, the time within which the possession is shown, the manner of holding, and the various other conditions which, appearing in any case, give occasion for m i l«-\ Bi STATE V. CASSADY. 573 stolen, unac- suiHcient to \v such pos- ori/e SI con- tlie iiistanco '« j>"'y> that 'e stolen is a )ossesaion of aso of (riiilt, iiii^ that pus- tified l)y au. 1 Greenl. on xses cited in ted tlierein; 3 Tex., 4S0; tic, 42 ]\liss., y. y*t/yy/f,43 ssuiiiption of I conviction, lis rule. In lat this pre. t one of fut't. l/i-ki, 20 id., ri(j/it 'IK Thii )osseiossession is so long after the larceny that the court ought to instruct the jury that something more than possession must be shown to justify a conviction, but as there may be cases where that possession is so recent as to warrant a verdict of guilty, this court cannot, in the absence of a full statement of the facts, say that the district court erred in refusing to instruct the jury contrary to the ancient rule. "Whatever sugfjestions, explanations or qualifications may be appropriate in any case, will depend upon the peculiar facts of that case. All that we decide here is, that it is not necessarily error to refuee an instruction like that asked, even when there is some testimony tending to show that the only connection defend- ant had with the offense was in the recent possession of the stolen ])roperty. One suggestion more in reference to this ques- tion: The verdict of the jury shows that defendant was not present at the time of the commission of the oft'ense. and there- fore did not then acquire the possession of the stolen property. "What the testimony was upon which the jury found that he incited, procured, counseled or abetted beforehand the larceny, we are not informed. It may well be that this whole matter of recent possession was, in the view taken by the jury and justi- fied by the testimony, wholly immateriah The record fails to show that defendant was arraigned or pleaded to the information. It shows that he appeared in per- .■} 674 AMERICAN CRIMINAL REPORTS. son ami 1»y counsel, niul that both parties hoijig ready for trial on the ii)f(trinatit»n filed, a jury was called and tlie cas^e trioil. An affidavit appear-s in tlic transcript to the efl'ect that as a mat- ter of fact the defendant was not arrai^jned, and did not ])lead; but by what right such affi(hivit appears in tlie transcript \vo can not tell. It was not made a part ot the bill of e.\cepti(»iis, nor docs it a])pear to have been used upon any of tlie niotiuns in the case. Assuming it, liowever, to be proven, that the deri'iid. ant was not arraigned, and did not enter a f(»riinil jdca, but be- ing ])resent in ])erson and by counsel, and aimouncing himsi'lf ready for trial upon the information, went to trial before a jury regularly impaneled and sworn, and submitted the (piestion of guilt to their determination, will the omission of the arraign- ment, or formal plea, avail the defendant thereafter, either on a motion for new trial, or in arrest of judgment? It may be con- ceded that at common law it woidd. See the authorities cited by defendant in his brief. Ihit under our statutes we think a different rule mustol)tain. I>y section 1(51 of the Crlmiinil Code (C4en. Stat., 840) it is declared that when a person shall l>e ar- raigned " it shall not be necessary to ask him how he will 1m3 tried; and if he deny the charge in any form, or recjuire a trial, or if he refuse to plead or answer, and in all cases where he does not confess the indictment or information to be true, a plea of not guilty shall be entered, and the same ])rocee(liiigs shall be had in all respects as if he had formall}' pleaded not guilty." And In- secticui 2t>3 it is provided, that "in iin ai»poal, the court must give judgment without regard to techi\ical errors or de- fects, or to excei>tions which do not affect the substantial rights of the parties." It seems to ns that under those sections, the omission did not and couhl not afl'ect the substantial rights of the defendant, and therefore is not ground for dis«:nrbing the judgment. 77/6' Sfufe v. Lcms, 10 Kan., 157. These are all the questions we deem it necessary to consider, and there a]ipearing in them no substantial error, the judgment of the district court will be affirmed. All the justices concurred. Note. — The following note on the eft'oct of the nvent unexplniiied possostion of stolon i>ropfrty, iis evidence in ca-ses of larceny and kindred oll'enses, is kindly contributed hy Michael Fimane, Esq. It is believed that every Aniericaii oane on the subject is here cited, and the doctrine for which it is an autliority accurately pointed out. — Rkp. STATE V. CASSADY. HO '^♦ly for trial ■' f.'isf ti-ifd. "it us 11 niat- 1 not ])lea(l; Pi'ipt \rtM'au 't'|»ti(»iis, iiur motions ill tlie (li'lV'iid. •ll'il, Itllt 1)0- ill,:; hiiiisc'lf »elVire a jury question of lie !irraiifii.. , either on a may lie coii- •ritie.s cited we til ink a imiiiiit Code ^Iiall l»e ar- lie will Ik) iiii-e a trial, UTc lie does >^-', a plea of isjfs sliall ill! <»t, i^'iiilty.'' .1. the Court Tors or de- iitial riu;lits oetions, tlio il rii^hts of urhiiin^ the ; are all the ! appearintr strict Court iPtl possostion iscs, is kimlly 'ricaii ru:it' on ity accurately Tlie frequency with which the possession of property recontlj- '^tr.en occui-s in cases of hirceny a-s evidence of j^niilt sufr^ests the propriety of calling attention to some of tlie hite cases in which the question lias been passed upon, which greatly modify, if not directly alter, the doctrine until recently considered as settled on that suhject. The dwtrine of the common law is stated by Roscoe to be, " when it is proven or may be reasonably presumed that the property in queetion is stolen, the onus pvhiiiiili is sliifted, and the possessor is bound to show that he came by it hon- estly, and if he fails to do so, the presumption is that he is the thief or the re- ceiver, according to circumstances." Rose. Grim. Ev., 18. The author there cites a numb<>r of cases a.s to the length of time that must elapse before the accused is relieved of the necessity of explaining the iwssession, showing that whether possession is " recent " or not, hiis always been regarded u« a question of law to be declared by the court, as distinguished from a pre- sumption of fact to be found by the jurj*. The doctrine of the common law is approved by Green4eaf, who says: "Pos- session of the fruits of crime recently after its commission is jmrna facie evidence of guilty jwssession, and if unexjilained, either by direct evidence or attending cia'umstances, or by the chtaractcr and habits of hfe of the possessor, or otherwise, it is taken as conclusive." 1 Greenl. Ev., sec. 34. It is not surprising that the rule laid down by so high an authority was followed l)y most of till' American courts in the earlier cases, and accordingly it may be saiil that the weight of authority on this subject Wiis greatly in favor of the doc- trine of (irei'iileaf. Wh.art. Crim. Law, 728; Com. v. Millard, 1 Mass., 6; State r. liirirstir, 7 Vt., 122; State i: Emjh'man, 2 Ind., 91; State r. Smith, 2 id., 402; Stat)' r. Mi'irick; 19 Me., :i98; State r. U'enton, 9 Conn., o27; Alzorth v. State, 10 Fhv., 207; Ilii(/li,'e(l jjnilty lereafter found lier ea.se.H jurit's ili.'ii of whowiny lie did so inno- eous. It i.< for ic accused, uiul e already eit<'d, that the recent ! of pniilt, yet f not reltutted, court in A't//// )und in iiOJ^ses- y it, otherwisi', I pri'.suniiition lujition of fact, [ fouinled, that nd., lGl;^7«/e State, id., 9>i; ris r. Stute, jO weight to tho urts have gono itified in draw- session of prop- Statc, o7 Tex., )9. ho are author- uilty, when the olen.While the DULLARD c. STATE. 577 rule wo havo contended for a.y thirteen jurors, but Htate that if it luul been remlered by a Il'^h number tlian twelve, it would lie void. In Ivuiitueky, thu conn lield that the defendant beiui? present, and not objcctiiijr wliou the jury was sworn, couhl not maintain it n^ error that the ver- diet wart rendered by thirteen jurors. 5 M. Mon., 120. In Jiouft V. Ncy having the mind of each juror who sits to ])ass judgment upon the life, liberty or rights of a suitor entirely free from bias or i)rejudice. In order to deter- mine whether the person who may be called as a juror possesses the necessary (). It can not be said the cause was tried by a jury, such as is con- templated by law. The other questions raised in the case are settled by the case of McCntc/icon v. The Peoj^Ie, ante, 471. For the error indicated, the judgment will be rever.«ed and tlic cause remanded. Jmhjtnent /•ti\ffney for siicli lerefore uiijrlit f tlie caut^e in e fuuiul giiiltj Jit'(jtf< it al, a!?e aiialoirou?, ts. jon to decide )oiintled to tlie r cause. The ipon wliioli to >8e tliey were itions asked to Bhonld be re- ;, 35 111., ai).-); such as is con- ed by the ca.-c versed and the s lanjfuujio in ad- tliat 111.' wiis coiu- rhtjre he wiis not « liinpuafrc in ml- ul the iiupudoueo '"m STATE V. SMITH. 581 to wi-ite me a note yesterday, bcgpng me not prosecute him, and threaten- inj? me if I did, he would get the legislature to imiieach me." It is the duty of the court to protect the prisoner from unreasonable and unfair statements and ai'yuments. Byxum, J. It is necessary to notice only one of the defend- ant's exceptions, as upon that he is entitled to a new trial The solicitor, prosecuting in behalf of the state, in addressing the jury, was allowed by the court to use the following language: •'The defendant was sucli a scoundrel that he was compelled to move his trial from Jones county to a county where he was not known." And, again: " The bold, brazen-faced rascal had the impudence to write me a note yesterday, begging me not to pros- ecute him, and threatening me if I did, he would get the legis- lature to impeach me." The i)nrT ise and natural effect of Guch language was to create a prejudice against the defendant, not arising out of any legal evidence before them; for the jury were precluded from inquiry into the causes or motives for moving the trial, and even from the knowledge whetiier the trial was moved by the state or the defendant. So in resj)ect of the letter, alleged to have been re- ceived from the def ;ndant, and the epithets predicated upon it; it was not in evidence, and could not be, yet its alleged contents were allowed to go to the jury with all the force and effect of coni]»ctent testimony. Such a letter constituted a new and dis- tinct offense, and was the proper subject of another indictment and jtrosccution. These charges and invectives were not only allowed to go to the jury, but were unexplained and uncorrected by his honor in his charge to the jury. In Dennis v. Haywood, G3 X. C, 53, the course here pursued by the solicitor is strongly reprobated. " Suppose," said the court, " a defendant is to be tried for his life, und to escape unreasonable prejudices in one county he removes his trial to another, the fact that he does so may be used to excite the prejudice that he is endeavoring to escape justice, and thus he would escape the prejudices of one community to find them intensified in another. Would the court allow the fact to be given in evidence or commented on by the counsel? Certainly not." So in Jenkins v. The jV. C. Ore Di'cmmj Co., G5 N. C, 503, it is said: "Where the counsel grossly abuses his ])rivilege, to the manifest prejudice of the op- posite party, it is the dnti/ of the judge to stop him there and 582 AMERICAN CRIMINAL REPORTS. then. If he fails to do so, and the impropriety is gross, it i» good ground for a new trial." And in the State v. Willunni-i, 65 X. C, 505, a new trial was granted in a case where laiiguaifo less harsh and violent was allowed by the court; and it wa.s there said that it was the duty of the court to interpose for the pro- tection of witnesses and parties, especially in criniiiial cases, where the state is prosecuting one of its citizens. The defendant was arraigned at the bar of the court mute and h^^lpless, without raising an unseemly controversy with the solicitor. The court is his constituted shield against all vituperation and abuse, and more especially when it is predicated upon alleged facts nut iu evidence, or admissible in evidence. There is error. Per Curiam: Venire do novo. \f i, Ferguson vs. State. (49 Inrl., 33.) Practice: Provocation to reduce homicide to manshiighter. '■A On a criminal trial for honiiuiile, it is tn*or for the court to allow counsel h\ the prosecution in iuKlressiny the jury to conunent on the fi-e([Ufn(.y of that crime in the connuunity, and say to the jury that it is clue to the lax administnition of the law, and urge them to make an example of tlu' respondent. It is error to charge a juiy on a trial for murder that " to reduce a honiiL-iilo upon provocation, it is essential tliat the fatal l)low shall liave hotii givi'ii immediately upon the provocation given ; for if there be time sufficient lor the passion to subside, and the person provoked kill the other, this will be mur- der and not nuuislaughter." PETTrr, J. The appellant was indicted for murder in the first degree, for killing John Stillhanimer, and was convicted of mur- der in the second degree, and sentenced to the penitentiary fur life. A bill of exceptions shows the following facts, which were also assigned as a cause for a new trial: " And during the progress of the argument of counsel, counsel for the state commented on the frequent occurrence of murder in the community, and the formation of vigilance committees i;j',!j is groM, it is ! V. Winiaii/s, lere language tl it was there ; for the j)ro- riiniiial cases, riie defendant pless, witlioiit The court nd abuse, and d facts not iu ire de novo. tughter. allow counsel foi tho fi-t'(iueiii.y of . it is clue to tin- tl exaiui)lt! of till' ■tluco a lioiuiciili^ I liave been jrivi'u G sufKcii'iit for tho tills will Ijt' mur- or in tlic first icted of inur- nitcntiary fur s, which were insel, counsel ice of murder B conunittecb FERGUSON f. STATE. 583 and mobs, and that the same was ' caused by ' the laxity of the administration of the laws, and stating to the jury that they should make an example of the defendant. And the defendant, l»y his counsel, asked the court to restrain the counsel, and objected to said comments, because there was no evidence of such matters before the jury; but the court overruled said motion, and remarked in the liearing and presence cf the jury, that such matters were proper to be commented upon, to which the defend- ant at the proper time excepted, and still excepts." The comments and arguments of counsel and the remarks of tlie court during a trial may be within the discretion of the judge presiding, but it is a judicial discretion, and if improperly used to the injury of either party, it may and ought to be revised and controlled by this court. If it was proper to present these things to and comment on them before the jury, it was proper for the jury to consider them in making up their verdict. These things were outside of the record and the evidence, and were cal- culated to prejudice the rights of the defendant. It was tanta- mount to saying to the jury, murders have been committed, viirilance coinniittees formed, and mobs assembled in this countv, and you may take these matters into consideration in making vour verdict; and as you have got a chance now, you may make an examjde of ilefendant. The jury may have come to a differ- ent conclusion from what they would, if the court had quietly rebuked the counsel, and told him to keep his argument within the facts and evidence in the case. The action of the court was an error, for which, if for no other cause, the judg.. ent must be reversed. The court gave the following instruction to the jury: " To reduce a homicide upon provocation, it is essential that the fatal blow shall have been given immediately upon the prov- ocation ict : " Inunetliate. In old English law, im- mediately; directly; without anything intermediate." When a great wrong or injury has been done to or inflicted on a man which has excited his passion, he is not required to pun- ish or resent it at once, but may have such time as is neceesarv for his passion to cool oti"; and his physical and mental organi- zation should be taken into consideration in such a case. All elemental authority and adjudicated cases agree that in such case time must be given for the passion of the injured per- son to become calm, and many .authorities say that the (]uesti(>n ought to be submitted to the jury as to whether the passion of the injured person had been actually quieted. We cite, with- out quoting-' *he following authorities: Ex parte Moore, 30 Ind., 197; 1 Hale P. C, 4.>3; T/te State v. IlUdrct/,, 9 Ired., 420; TJic State i\Yarhroa(jh, 1 Hawks, 78; Commonwealth v. Woffster, 5 Cush., 295; IVie 2*eoj>Ie v. Johnson, 1 Parker, C. C, 291; Foster's Cr. Cas., 290. The instruction given was erroneous, and the case must be re- versed for this as well as for a former Uijticed error. The judgment is reversed; and the clerk is directed to issue the proper notice for the return of the prisoner. NoTK. The following itccount whicli liOrd Campbell fpvi's of the behavior of the judye iiiul the jiro.'-ecutmf^ counsel on the triul of Sir Walter H.ilei<,'Ii wlieu contnusted with the rulinys in the Ciuse in the text, illuMtriit>.'.s very striklii'rly tin,' profjTi-estj that luis been unide in the eondnet of criiuiniil trials: "The nihjijs's of Chief Ju.stiet.' roiihiini lit this trial would sreni very striui;,'e in our day, liut iji his tJiey caused no suriirise nor censure. In tlie first place he tli'cided, ii{,'iuniit iiii able arf,'iiuient from the prisoner, who conducted his own defense, that, alt.liou^rii the charge was high treason, it was sufficiently supported by the uncorroborated evidence of a single witness, luul, secondly, that tliere was no occasion for this witness to be produced in court, or swoni, and that a written confession Ity him, accusing himself and implicating the prisoner, was enough to satisfy all the n- quisitions of connnon and statute law on the subji'ct. Raleigh still urged that Lord Cobhani. his solo accuser, should bo confronted with him. I'oithitm, C. J. "Tills thing cannot be granted, for then a numberof treasons should flourish; tJie accuser might be drawn in practice whilst lie is in iH-n-son." liahUih. " The com- mon ti-ial iji Kngliuid is by jury and witnesses." rvjiJuim, C. J. " If throe conspire a treason, and they all confess it, here is never a witness, and yet they are condemned." EuUiijh. "I know not lx)w you conceive the law." 7V//j/whi, C. t7. " Nay, we do uot conceive the law, but we know the law." Raleiijh. " Tlio , on the mo- lisli law, im- 1" inflicted on iiired to jnui- '■> is iiecet^sary ental or<,'ani- case. greo tliat in injured pcr- the (juestiou ie passion of e cite, with- oo/v, 30 Ind., > Iml., 420; t/l V. Wchfc)', , C.C, 2'Jl; 'i must bo re- cted to issue tlio lx'lin\i(ir of r l{.tli'i|4:li wlini ■y stnkiii','iy tlic "Tlif niiuijs'K of our iliiy, but in (It'll, il{,'IUllPt iUl , tluit, altliou^'h uncom.ibornt<'il iMMision for tiiis ifi'ssion by liini, itisfy Sill till' n - still urged tiiat l'(>j)htim, ('. J. itkl flourisli; tJio '///. " The eoiu- ./. " If tiu-eo ss, luid yet tiicy law." I'ojjlutm, RaUiyh. "Tlio FEIWUSON V. STATE. 585 wisdom of the law of God is absolute and porfoct. llocfae et rives, etc. Indeed where the witness is not to Ije had conveniently, I agi'oe with you; but here he may; he is alive, and under this root. Susannah had been condemned if Daniel had not cried out, ' Will you condemn an innocent Israelite without examination or knowledge of the tiiitli ? ' Uemember it is absolutely the commandment of God: ' If a false witness rise uj), you shall cause him to be brought before the judj^es; if he be found false he shall have the i)unishm(>nt that the accused should have had.' It is vi-ry eiisy for my lord to accuse me, and it may bo a means to excuse himself." I'ophim, C.J. "There nmst not such a yap be opened for the desti-uction of the kiny as tliere would be if we shoulil grant tliis. You plead hard for yourself, but the laws plead hard for the kmy," liah.iijh : "The lung de>'res nothin being attempted. While he was detiiiling till.' charge, which he knew could not be established, of an hitentionto destroy the king and his children, at last th(> object of his cahnnny interposed, and the fol- lowing dialogue passed between them: h'olcij/h. "You tell me news I never heard of." Atlonici/ (Icncnd. "Oh, sir, do I? I will prove you the notoriest traitor that ever held up his head at the bar of any court." li. "YourNvords c;)r.not condemn me; my imiocency is my defense. Prove one of these things wherewith you have charged me, and I will confess the whole indictment, and tliat I am the hon-iblest traitor that ever lived, and worthy to be cracitied with a, thousand thousand torments." .1. (.'. " Nay, I would prove all; thou art a mon- ster; thou hast an English face, Ijut a Spanish heart." 1{. " Let me answer for myself." yl. r;. "Thou shalt not." 7f. " It concemeth my life." J. «. "Oh, do I touch you?" The proofless nairativo having proceeded, Raleigh again broke out with the exclamation: " You tell me «<'(ra, Mr. Attorney!" and thus the altercation waa renewed. A. G. "Oh, sir, I am the more large because I know with whom I deal; for we have to deal to-day wth a titan of wii. I will teach you before I ^^! TT 6S6 AMERICAN CRIMINAL REPORTS. have done." 7?. " I will wiish my hands of the indictment and die a true man to the kin?,'." A. O. " You are the absolutcHt traitor that ever was." 1{. "Your phrases will not prove it." A. G. {in a tone of assumed raininess and tenderness) " You, my masti'rrt of the jury, respect not the wickedness and hatred of the man; respect his cause; if In; be (fuilty, 1 know you will have care of it, for tlio presei-vation of the kiiij^, the continuation of the Gospel authorized, and the <,'00(l of us all." ]{. " I do not yet ht.'ar that you have oll'ered one word of pi"Oof ayainst me. If my Lord Cohham be a traitor, what is that to me?" A.G. "All that he did was by thy instipition, thou vijv^r; for I thou thee, thou traitor." The depositions Ijcinj,' read, which did not by iuiy means make out the prison- oner's complicity in the plot, he observed: " You try me by the Spanish in(iuisi- tion, if you proccc-d only by circumstances, without two witnesses." A.G. " This is a treawnablo speech." h'. "I ajiiMjal to God and the kiny on this point, whether Cobham's iuxusation is sutUcient to condemn meV" .1. G. "The Idny's safety and your cleariufy cannot ayree. I protest before God I never knew a dear- er treason. Go to, 1 lay thee upon thy back for the coufidentest traitor that ever csime at a bar." At liust, all present were so much shocked that the Earl of Salisl>\ny, himself one of the commissioners, rebuked tlw attorney general, saymg, "Be not so im- patient, good Mr. Attorney, give him leave to sjK'ak." A, G. "If I may not be patiently heard, you will encourage traitoi"s and dis- courage us. I am the king's sworn servant, and must speak." The report*^ relates that " here Mr. Attorney sat down in a chafe, and would speak no more, until the commissioner urged and entreattnl hiui. After nuidx udo he went on. and niiMle a long reptdition of all the eviuriK)se; tbat affiant being ignor- ant of tbe law in tliis respect, and believing tbat said Vantlect knew and correctly stated tbe law to liim, and fully relying upon such belief, and upon said Vanfleet's words, so i)ledged, tbat af- fiant sbould not be disturbed in bis said business, consented to, and did tbei'eafter jdead guilty in said first named cause, and submit to a judgment of ten dollars and costs therein againt«t bim, and did pay to said Vanfleet bis fee as prosecuting attor- ney, viz.: five dollars, and also tbe other costs taxed in said other cause, number 84, and so dismissed, amounting in all to twelve dollars and fifty cents, which said Vanfieet received; and affi- ant further says, that be was not and is not guilty of the otlenso cbarired airainst him in said infarmation and affidavit filed in said cause number 83; that he did not so sell any intoxicating li(|- uor to said Charles E. Jessup, in violation of law as therein charged, but that he so pleaded guilty in said causes solely for tbe reason that be believed the cost to him, in time and money expended, would be greater to defend said causes, than to plead guilty and pay said judgment, and because of such statements so made Iiy said Vanfieet; that afterward, viz.: on the 13tb of ^lay, 1874, the said Vanfieet formally notified affiant by letter that if alHant sold any more intoxicating licpior, ho Vanfieet, as such prosecut- ing attorney, would prosecute affiant for all such sales, as for selling intoxicating lielled to close his said ])lace of business, to his great injury and damage, uidess the judgment in this cause, number S3, bo set aside, and lie be allowed to defend said cause. Ei.za Goldex. " Subscribed and sworn to before nie, this 3d day of June, 1S74. LaPout IIkknkk, Clo'k:' The aflidavit of Sylvester W. Slnnnard was also iiled in sup- port of the ai)pellant's afHdavit. Upon these affidavits the ap- pellant moved the court to set aside the judgment and allow him to plead not guilty to the infornuition. The court denied his motion; he excepted, and appeals to this court. The a])j)ellant, having shown ns by his own affidavit that he accepted a corrupt i)roposition and corruptly purchased his in- dulgence, is not entitled to relief. The judgment is affirmed. McCoy vs. State. (52 Ga., 287.) Puactice: Ri'fimnff ilhrjal verdict. It is not oiTor to refuse to record an illef,'al verdict, and to direct the jury to re- tire ayain luid bring in a verdict in accordance with the charge of the court. Under an incHctnieiit against respondent, charging him as principal, a verdict of guilty as accessory after the fact is illegal. Tuii'PK, J. 1. The defendant was jointly indicted with three others for larceny from the ]ierson. The jury Urst came in witli a verdict finding the defendant "guilty as accessory after the fact." The court directed them to return to their room, and if they found a verdict, it must be guilty or not guilty. The ver- dict was rightly rejected by the court, because it was an illegal verdict under the indictment, as will be seen presently. 2. The verdict being an illegal one, the court had the power, and it was its duty to reject it, and to give the directions that were given. Will lams v. The State, 46 Ga., 047. 3. Was the verdict illegal ? " An accessory after the fact is a person who, after full knowledge that a crime has been commit- 11 fc-" .' »t j" if. r m \ 1 9- mi I I if, 590 AMERICAN CRIMINAL REPORTS. ted, conceals it from the magistrate, and harbors, assists or j)ro- tccts the i»erson charged with or convicted of the crime." C(»de, sec. 4.30S. This court has twice decided that on an indictment charging a defendant as principal in the first degree, or as the actual perpetrator of the crime, he caimot be eonvicted as ])rin- cipal in the second degree. Washington v. The Stotc^ 30 (J;i., 222 ; Shaw v. The State, 40 id., 120. Granting, ex gratia, that in misdemeanors there may be accessories, on wliich, see Lcwln v. The State, 33 id., 137, or that the accessory may be put on trial be- fore the conviction of tlic principal, sec Smith v. The State, ■ii] id., 29S; not even tlien, under the principle on wliich the decis- ion in Washington v. The State is put, could the defendant be convicted as accessory upon an indictment charging him as a real actor and perpetrator of the crime. In that case, the grouiul on which the decision was placed, to wit, that a defendant wlio is charged as the perpetrator of the crime cannot be convicted as princi])al in the second degree isi " for the obvious rcasun tliat the accusation does not notify liim that he will be held responsi- ble for such acts as will make him a principal in tlie second de- gree, and therefore he is taken by surprise at the trial;" and "that he will have had no notice that he will be recpiired to meet such evidence or be prepared to rebut or explain it." This will apj)ly to the case of an accessory as well as that of a prin- cipal in the second degree. An examination of the sections de- fining the two classes of offenders will show this at once. With- out determining whether there can be an accessory in misde- meanors, we say that under this indictment the first verdict returned by the jury "as illegal, and was projierly rejected Ijy the court. 7 C. & P., 575. 4. Upon a second consideration of the case, the jury returned a verdict of guilty, and the court refused to set it aside on the ground taken in the motion for a new trial, that it was contrary to the evidence. This is one of that numerous class of cases wherein all we liave to say on this point is, that we do not tliink it was such an abuse of discretion as to call for the interference of this court. Jiidgmetit affinned. Note. — Tho following account of a very celelirated encounter b(!twenn Erskino and BuM.KK u taken from the " Spt?echea of Ix)rd Erskine," vol. 1, p. VM. It or- curred on the trial of the Dean of St. Asaph, for lilwl. No question was aftei-wiinlj made by Erskine but that Justice Bcller had acted strictly witliin his duty, in ?8ists or jii'o. me." C(Kle, indictniout ec, or us tlio cted as j)rin- '^tate, 30 (iii., nitid^ tliivt in Lcnunt V. The oil trial 1)0- V>e State, 4G c'h the (lecig. lufoiulant be n^ him at* a }, the f,'ruuml .'feiKlaiit who he coiivictod s reason that eld respoiirii- le second de- J trial;" and ! re(jiiired to in it." This lat of a priii- ! sections dc- once, AVith- >ry in niisde- tirst verdict y rejected hy iiry returned aside on the was contrary lass of cases do not thiidc interference t affirmed. •(.'tween El^kino l,p. 1;K Itoo- i wa.s afkn-wiirdj liin his duty, in McCOY V. STATE. 601 satisfying hinisdf that tho jury comprohcndcd the vcnliet whi'h they gave, and in h living it recorded according to their int<.'nt: The jury withdrtjw to consider of their verdict, and in aliout half an hour ro- tumi'd again into court. Ammniv. (ientlenien, do you find tlie defendant guUty or not guilty? Forettinii. (Juilty of puliUnhing, only. ^fl•. Krskhif. You find him guilty of publiHhing. only? A jiii'ot: ( f uilty only of jmljlishing. Mr. Justice IMler. I believe that is a verdict not quite con-ect. You must exiilain that one way or the other, a.s to the meaning of the innuendoes. The in- dictment haa stated that (J. means (tentlemen; F., Farmer; the King, tho King of Great Hritiiin, and the Parliament, the Parliament of Great Britain. One of thejto'H. We have no doubt of that. Mi: Justice Duller. If you find him guilty of publiBhing, you nmst not say tho word onli/. Mr. Emkinc. By that, they mean to find there was no sedition. A Juror. We oidy find him guilty of publishing. Wi; do not find anything else. Mr. Emkine. I beg yonr lordship's pardon, with great submission. 1 am sure I mean nothing that is irregular. I understuid they say, We only find him guilty of puldishing. A juror. Certiiinly; that is all we do find, Mr. lirodcrick. They have not found that it is a libel of and concerning tho king and his goveniment. Mr. Junticv lUiUcr. If you only attend to what is said, there is no question or doubt. If you are satisfied whether the letter (}. meant Gentleman, whether F. means Farmer, the King means the King of Great Britain, the Parliament, the Piurliiunent of Great Britain — if they are all satisfied it is so, is there any other iimuendo in the indictment? Mr. lA'i/ccntvr. Yes ; there is one more ujwn the word rotes. Mr. Erslcinc. When tho jury came into court, they gave, in the hearing of every man i)resent, tho very verdict that was given in tho ciuse of I'he King v. WoodfoU; thi'y said, Guilty of publishing, only. Gentlemen, I desire to know whether you mean the word onli/ to stand ui your verdict? Oiieofthejun/. Certainly. Another juror. Certiiinly. Mr. Justice liuUer. GentliMuen, if you atld the word only, it will be negativ- ing tho innuendoes; it will be nogativmg that by the word King it means the King of Great Britain; by the word Piu-liament, Parliament of Great Britain; by the lett*'r F., it means Farmer, and G., Gentleman; that, I underatand, you do not mean. A juror. No. Mr. ErsJt-ine. Jly Ix)rd, I say that will have the effect of a general venlict of guilty. I desire the verdict may be recorded. I desire your lordship, sitting here as judge, to record the verdict iis given by the juiy. If the juiy depiu-t from the word onfi/, they alter their verdict. Mr. Justice Duller. I will t-ike the verdict as they mean to give it; it shall not be altered. Gentlemen, if I undei-stand you right, yom- verdict is this: You mean to say, guilty of pullishing this hbel? A juror. No; the pa,mphlet. We do not decide upon its being a libeh m 1 1 ^ ■it' 602 AMERICAN CRIMINAL UKPORSS. Afr. JiinlU'i' !f illrr. Voii say ho w j^uilty of imliliHhinjr tlii' pamplilt't, aiul that llio iiK'iiiiinjr of till' iiiiiui'iidoos in iw statcil in the indictment. AJiinir. Ci'rtiiinly. Mr, Kr.il,-i)ir. is tin; word on!// to .itund part of your vortlict? A Jiinn: Certainly. Mr. I'.'rnl,-iiiv. Tl'.cn I insist it sliall lie rwordcd. Mr. Jiistiir Ihtlkr. 'llion tho vonlict must be misunderstood. \^i me under- stand tlie jniy, Mr. Krsft-hir. Tlio jury do (indei-stand their verdict. Mr. JiiKtirv Jfitller, .Sir, I will not he inteirupted. Mr. I'Jr.'th-iiir. ) stand lieri' a-s an iidvociito for a brother citizen, and I desiro tliat the word oiifi/ may he recDrded, Mr. JiLitifp liiillcr. Sit down, sir. Remember your duty, or I shall he ohli^'od to jirooi^'d in another manner. Mr. Kr.shi)H'. Your lordship may pnweed in what manner you think fit. I know my duty iw well as your lordship knows yours. I shall not alter my con- duct. Mr. JiLitiri' Ihillcr. Oentlemen, if you say iin\\iy of pnblishing, only, you ne^itivo tho meaninpr of the particular words 1 have mentioned. A juror. Then we be^; to <,'o out. Mr. Jimtlrv Itnlh-r. If you say (^lilty of pubhshin>j only, the. conseijuenco is this, that you ne>,'aiive tho meaning,' of the ditf'erent words I mentioned to yon. That is tho operation of the word ouli/. They are endeavorinj^ to make j'ou give a verdict in worrls different from what you nu.'an. A Juror. Wo should be very ylad to he informed how it will operate. Mr. Ju.stice IhiUvr. If you say nothing more, but lind him jfuilty of pubhshinj;, and leave out the word f»ihi, the juiy find him piilty of puV)lisliinf,'. leaving? out the word, but entered in tho record? Mr. Justice liuller. I say it will not stand as proving the sedition. Gentle- men, I tell it you lus law, and this is my particuUir satisfaction, a.s 1 t<^>ld you when summing up the case, if in what 1 now say to you I am wrong in any instance, they have a right to move for a new trial. Tho law is this: If you find him guilty of publishing, without saying more, tho question whether it is libel or not is open for tho consideration of the court. , McCOY V. STATE. 603 mphlct, luul tluit Lot jno umliT" zcn, aiul I dmra shall bo c)V(li),'i'(l you think (it. I ot iiltor my con- (hing, only, you a conacYNUM, J. The defendant was indicted for the larceny of a leatlier trunk, the property of one W. J. Bishop. It was in proof that the trunk, when stolen in the month of October, 1S74, contained one new fifty dollar bill of the Exchan. posed, by consent, to avoid a severance. They testified substan- tially as follows: Lambert was passing along the road, when Abram hailed him and said he wanted to see him about some news he had heard. lie admitted " the news," and immediately jumped intotlielicM and jerked a rail off the fence, swearing that he would kill Al)ram or Abram must kill him. Abram walked off ten steps, drew his pistol, and told him to stay off. lie said, " I'll kill you to-day, or you kill me," and knocked Abram down on his knees witli the rail, when the latter fired, shooting him through the arm. Before Abram could get up, he threw down the rail and jumped on him. In this condition of affairs, Sarah hit Lambert witli a rail. Ned came up and told Abram to " take away his pistol," He " took away his pistol," got up and ran off about fifty yards, Lambert following him with a rail. Ned said, " Do you run, and a man trying to kill you? Shoot him again." Lambert still followed him, between four and five hundred yards to Ned's house, when he fired the second time. Abram carried his j)Istol to shoot rabbits. "When Ned came up to the combatants, Lam- bert said to him, " Where are you going, you old devil, for if you come any nearer, I will kill you or Abram? " The rail with which Sarah struck Lambert was the same one used by the latter TT1 SEBORN V. STATE. 699 e man or black lim. Lambert il ami sluit liim ail and struck ill, tokl Abraiu ic head with a .nd held them ig off. Aljraiii t then went oil' : ball out. lie , when Abraiu 1. lie did not me. Followed trying to reach after the dilli- he would have jsses, it is sup- itified subataii- am hailed him he had heard, d into the field lid kill Abram steps, drew his ill jou to-da_v, lis knees witli >ugh the arm. .il and jumped ambert with a fiy his pistol," )ut fifty yards, " Do you run, n." Lambert yards to Ned's ried liis ])istol batants, Lam- d devil, for if The rail with i by the latter in knocking Abram down. Ked told lier to knock him again, for he would kill her father or brother. The jury found the defendants guilty of an assault with intent to murder. They moved for a new trial, because the verdict was contrary to the law and thu evidence. The motion was over- ruled, and defendants excepted. W. Uohhy, J. L. S'myleton, by Uilliard tt' Harrison, for plaintiffs in error. John W. Roljinson, Solicitor General, by B. II. Hill dc Son, for the state. McCay, J. 1. There is no good objection to this verdict as to Abram. If the jury believed the state's witness, he was guilty. But taking liia whole testimony with the other testimony, we think there is no sufficient evidence of assault with intent to murder, against the others. To make out this offense, it must appear that had the assault caused the death of the person as- saulted, it would have been murder. The evidence of the prin- cipal witness would at first seem to implicate all the defendants in the attack on him in the lane. But if it be looketl at criti- cally, it will appear that his statements on this point are not definite. He does state that they encouraged and aided Abram, but he does not state the time of their interference; and taking the statements of the other witnesses, especially the evidence of the track of the blood, it would appear that after the attack iu the lane and the shooting, then Lambert got over the fence, fol- lowed Abram with a rail in his hand, and did his best to com- mit serious liurt upon him, and that it was during his pursuit of Abram, that the old man and the girl interfered and com- mitted the assault he testifies to. We can excuse him for the anger which led him thus to push the war upon this foe. A man witli lead in him from the jiistol of an adversary may be ex- cused at least, if in the jtassion thus begat, he fails to stand only on his own defense. But the law does not justify such acts, and when he crossed the fence, following Abram through his own field with a murderous weapon endeavoring to strike him, he was himself violating the law. The same charity which excuses him for the anger caused by the wound inflicted on him will, how- ever, also excuse the old man and the girl for aiding their son and brother, wlien his life was in danger from the auger and the P"^ »!/-■*&, "-'iU'. A)' i!" > . CI n.i' .-J 'a Ji. '« '*, li: fi^ 000 AMKUICAN CRIMINAL llKI'OItTS. rail of tlio ])n)K(!(Mit<>r. Abriim wiia rctrciitintij, lio luul ^ot over tlu! fciKtf, t oil" Horiu! OHO Iiuiidred yartlH, tho stiito'H witiicsw hiiiiiluM't wuH artor liiiii hot, with riif^o, iiiul with uii instniimiut of le uf Heveraiu^ in all criminal trials is the ;^('neral rule. There is no reaBon in the natun; of thiiii^'s why the verdict, though stit aside as to the two, should not stand as to the oiH! really guilty. J*erhaj»s by the common law this could not be doiu!. Its strict rules of pleading and adhereiict! to a theoretical nccuracy in such matters, tlioiigh mudi admired l»y some, is iiKidilied by our law, and we tliink the modit'.catiun justifies the dis|M»sition W( make of this case. fliidginent allirmed jis to .\bram, and reversed as to Ts'ed and Sarah. City of Hloominoton vs. IIkiland. ((17 111.. 27H.) PuACTlCK: Aulhorilij of (illdnirif — I'arol irmf/nlzdnri' b<-finr. police tmif/in- tratc— I'trsviivv of rcsiiondciit on trial for wi.sdnniniior. II. wii-s iiiTcst.'d on Satnnliiy iiif^lit,l)y ii policciuaii witlumt a warrant, fur ii violiitiiin of a city ordinaiii't'. 'i'lic |H)li('cniiin, after arrest in^fliiiii took awiiy liin money, sfCiiK). On Monday morning'' H. was )>roii);lit l>efore tlie polii-' nia^ristrate wlio look wliat wa.^ ineatii for a |)arol reeofrni/.ance in tlie mnii of ^'•M), in appear at two o'clock in the afternolicema.n, under aulliority of 1 1. 'h attorney, paid tiie city attorney, for tJu' city, ijCiUO of till! money in iii.s liand.s. On these facts it w.is held, that tlm attorney liaear liefori! a iKilicc maifistrat^,' has no Icfjal validity or l)indinK force;. On a trial for misdiimeaiior, it is not iica'ssary that the respondent should ho pret^ent in person, luid tlio trial may proceed in his absence. lisul t over iiU^H witnosH I instniiiioiit it it WiiH -.vitli liu\ IkHMMUU ii H!«)ii iminlcr. r. and lisul he tliiiik, thorc!- r our syKtciri 'iiitiiiiil trials n; nj' tliiii;,'s lid not Htaiid moil law tiii.s 11(1 udliortiKM! nicli iuliiiircd inodit'.ciitiun 5 to Mt'd and 'c police mtu/in- n, AviiiTfiut, for ii ikIi'I" t-odk iiwiiy Ix'f'on; tlm polii-' u;o in tin' hiiiu i»f ) 1m)II(1 WiW lllilill: illK'ilt tWl). Till' ittoriii'y, for tJio IS III III, tliat till! uVh nioni'y, iiiul HiH'd till' city fur li'Kiil validity or ndont .slioulJ lie CITY 01-' HLOOMINfJTON v. HKILANJ). COl T^itKKSK, J. Tliiw was an action (»f as.sunip.slt, In tlic McLean circuit court, on tlic conmioii counts, hroiij^lit l»y Henry llciland a.i,'ainKt tlic city of I{lo(tiiiin;,4on, rcsultiiif,' in a verdict for the ]>laintiir, on whidi the court Hindered jiidi^niicnt. To reverse tliis jndj^'nient the tlefendant apjtcalrt. That tJKire are tliree hundred dollars of the money of the ]»hiint- iH'intlie city treasury is not denied; tlio (question is, lias the city, undtM- the facts of tlie case, a ri<,'ht to retain \ti The facts, hri^rlly stated, an;, that plaintill', a strani^isr, and a (J(!rman, i<^norant of our lan_>;na<^e, was arrested oji the Saturday ni^ht of the sixth of .Fuly, ls72, l»y a ])oliceuian, for an alleged violation of a city ordinance, hut without any warrant, lie was taken to the calahoose and detained over Sunday, and, wliile so in coniiiKiment and nii'Ier dunsss, the ]iolicenian took from the ]trisoner liis money, amountini^ to six hundred and ninety-two dollars, threi! liundreron<;ht before tlie police mai^istrate. The i)rosecution not heiii'^ reaoar at two o'clock in the afterno(»n, and released him. No recoi^ni/.ance, such as re(piired hy law, was taken, no bond beinj^ entered into, nor was any entered on tlie minutes of the |tolice maj^istrate. it was the mere verbal promise; of the accused to be pres(!nt at that hour. When the Ikmu* arrived, the accused was called, but came not; whereujion the ])olicemaii wIkj had taken ]K)Pse8sioii of the money, doubtless actinj^ under the dircc tion of the attorney of the accused, jiald to the city attorney three hundred dollars, and he paid it into the city treasury. It is clear, from the ])roof, the attorney of tlie accused had no authority from liis jirincipal to cause his money to take this course, lie was not employed for any such ])ur pose. The ac- cused was under no lei^al oblifii n ~^i 1 ■J and if lie was found guilty, and judgment rendered against him, an execution could have been issued and levied on the money, if the parol undertaking to appear was of any binding force. Viwt it was not of any binding force; yet, under these proceedings, of no validity, the accused was deprived of his money, and now asks the city to restore it to him. This demand, as we view the testimony and the law, is a just demand, and must be accorded to him. It is complained by appellant that the court refused to give two instructions asked by them; the first of which was substan- tially embraced in other instructions given, and the second is not the law, a parol recognizance having no validity. It is also complained that the court refused to submit these questions sjiecially to the jury, propounded by the defendant: I'^irst. AVas the money in question paid over to the city by the free and voluntary direction of the plaintifTs attorney? Second. Was "Wm. Shackleford authorized by Ileiland to act for him in relation to his defense before the police court? This practice of propounding special (piestions to the jury is authorized by Fcctiou 51 of the Practice Act, approved Febru- ary 22, 1S72. It is, however, diacretionary with the court, and it might well refuse the first as it was of no importance, if the attorney had directed it, as he had no authority to give such di- rection; and as to the second, an authority to act in defense of an accused party confers no authority to appropriate his uioncy, and it would have answered no good purpose had the jury re- turned special answers to these (piestions. It is aj)parent from the record, that the city has the money of appellee \\\\\(i\\,ex wquo et bono, they ought not to retain, and the verdict and judgment are right. The judgment must be aftirmed. Judgment affirmed. Gbioo V8. Peoplu. (31 Mich., 471.) Practice: Arraignment and pea ■ Record. It must aliinnativoly appear by tlie record of 11 crimiiuil ciuso, that tliero haa been an an-aignment and plea, or the verdict will be set a.side on writ of error. GRIGG I'. PEOPLE. 603 against him, le money, if force. ]}ut proceed in<,'s, ey, and now wo view tlie be Jiccordixl ised to give vas substan- econd is not ibniit tliese It'fendant: the city by )rney? eiland to act )urt? tlie jury is ived Febni- e court, and tance, if tlie :ive such di- i defense of liis money, :he jury re- 10 money of ain, and the offinned. that tlicrc haa iJe on writ of Ekror to Wayne Circuit. S. Larncd and Michael Flniane, for plaintiff in error. Andrew J. Smith, Attorney General, for the people. GuAVKS, C. J. The plaintiff in error was informed against in the Wayne circuit court, for the larceny of two horses. The value of each was laid above one hundred dollars. lie was convicted and sentenced to the house of correction for one year from the 27th day of January last. Complaint is made that the sentence, as recorded, does not rightly describe the offense, and also that the action of the court in vacating an order, which had been granted for a new trial, was unwarranted. But as there is anoth- er objection, which is certainly fatal, these points will be passed over. It is alleged for error, that there was no arraignment upon the information, and that no plea was made by the prisoner or en- tered by the court. The return to the writ of error is silent on the subject, and the attorney general, whilst admitting that an arraignment and plea were indispensible, as of course they were, sul)niits to the court whether the absence of any express matter in the record as returned, to show the contrary, it ought not to be intended that both proceedings were actually had. An arraignment and plea being steps imperatively required, the recital of them, if they were taken, was a necessary ingredi- ent of the record. They were required to be duly entered, and it was the duty of the court below, in obelience to the writ of error, to certify here the whole record in the exact shape in which it remained there. This appears to have been done. We even find some matters in the return not upon common law strictness, components of the record, and we have the certificates of the clerk that a true and correct copy is given of all the pro- ceedings had in the cause. No application has been made for any further or different return, and we must consider that the return made is as full and complete as the record below; and if in any such case it would be admissible to assume that the fault was caused by the failure of the lower court to have the proper entries of real proceedings made, either as they occurred or af- terwards by amendment, and not by the omission of the pro- ceedings themselves, the face of the present return will not war- rant any such presumption. Two motions for a new trial appear 1 604 AMERICAN CRIMINAL RErORTS. to have bcoji made and passed on after ar<3'iunent, and tlie case must have undergone such a sifting as to apprise tlie court of tlie defects, and to have suggested the need for an aniendniont of the record if the difficulty consisted of tlie want of entries and not of facts. Under the circumstances, we must take the record as wo find it returned, and assume that it tells neither more nor less than what occurred. The omissions, then, are sufficient to support the allegations of error. 'No better evidence to maintain them, if well founded, could regularly be produced. An express statement that in fact tlierc was no arraignment and plea, it is not the province of any- one to make and insert. Negative evidence is that oidy which seems practicable. The sentence and conviction must be set aside, and the plain- tiffin error mast be remanded to the sheriff of "Wayne county, that he may be lawfully arraigned on the information, or other- wise dealt with agreeable to law. CooLKY and Campbell, JJ,, concurred. . Aylesworth vs. Pkoi'i-e. (65 m., 301.) Puaotice: Record — Arraignment ami plea. It must affirmatively appear on the record that on indietniont was retmuod into court. It must iiffinuativcly appeixr on tlie record that tlie respondent Wiis amu!,niod and plciuled to the indictment. McAllistku, J. This was an inditcment in the Warren cir- cuit court, for selling liquor without a license, and verdict of guilty, and fine imposed. The defendant brings the record to this court by writ of error. The record purports to contain an indictment against plaintiff in error, but it wholly fails to show that such indictment was ever presented in court by any grand jury, or that plaintiff in error was ever arraigned upon or pleaded to it. The record must show that the indictment was retiirned into open court. Gard- ner V. The People^ 20 111., 430; Sattler v. The People, 59 id., G$. EISENMAN r. STATE. 605 1(1 tlio cnso Boiirt of tho ncnt of tlio suiid not of aa wc find or leas tliaa legations of 11 founded, that in fact ince of un}-- only wliich d tho pliiin- yne county, n, or otlier- was retmiiotl wiis an-iiitfiioj \iVarrcn cir- verdict of e record to ist plaintilt 3tnient was plaintiff in ecord must rt. Ganl- , 69 id., Gb. The record should also show that the plea of not guilty was entered. Without it there is nothing for the jury to try. John- 8071 et al. V. The Penjde, 22 111., 314. The judgment of the court helow must bu reversed, and the cause remanded. Judgment reversed. EisENMAN vs. State. (40 Ind., 520.) Phactice: AtraigniHvnt and plea. On the trial of an appealed criminal case, where the defendant was arraigned and ploadod before the justice, it is not necessarj* that there should be a new aniiigninent and plea in the appellate court. WoKDKX, J. This was a prosecution against the ai)pellant be- fore a justice of the peace, for selling intoxicating liquor to a person who was, at the time, in a state of intoxication. Before the justice, the defendant was arraigned upon the affidavit, and pleaded not guilty thereto; and, upon trial, was convicted. He appealed to the circuit court, where, upon trial, he was again convicted. The only point made by counsel for the appellant is, that in the circuit court he was not arraigned, and did not plead to the affidavit. The record shows that in the latter court the defend- ant appeared in ])erson, as well as by attorney, and that the cause was submitted to the court for trial. We need not decide what would have been the effect of a fail- ure to formally arraign the defendant and require him to plead, had the prosecution originated in the circuit court. As the pros- ecution originated before a justice of the peace, and as the defend- ant was there arraigned and ])leaded guilty to the affidavit, any further arraignment and plea were entirely unnecessary. The defejidant was pi^.pvjrly tried on the affidavit, which was filed be- fore the justice of the peace. Wachstetter v. The State, 42 Ind., 100; 0' Conner v. The State, 45 id., 347. On this affidavit he had already been arraigned, and to it he had already pleaded. The judgment below is affirmed, with costs. 3,:il 1:1 ^J^'' 606 AMERICAN CRIMINAL REPORTS. Davis vs. State. (38 Wis., 487.) PnACTiCE: An'aUjnimnt and plea — Record. Whero it doos not affirmativoly appear from tho rt'conl that defendant was nr- raitrned and ploadfd U'fore vi-rdiit, a conviction will ho icvcixcd on iiior, and tliiH nilf applicH to cases of assault and battt'iy. After verdict, the court has no jiower to have a plea entered nunc pro tunc for the defendant without his consent. Ekkor to the Circuit Court for Iowa County. The plaintiff in error was prosecutoil to convict' before a justice of the peace for assault and battery. II ealed to the circuit court, where he was again tried and founu guilty by the jury. The return of the justice fails to show that lie pkuded or refused to plead to the complaint in the justice's court; and the record shows that he did not plead or refuse to j)lead thereto in the circuit court. On tho ground that he had never pleaded or been called u[»on to do bo, and on other gr')unds which need not bo stated, he moved in arrest of judgment in the circuit court. That court denied the motion, and after ordering that a plea of not guilty be entered nunc pro tunc, rendered judgment upon the verdict. Wihon ttr Jones, for plaintiff in error, to the i)oint that the court cainiot supply an issue after verdict in a criminal action, cited "Whart. C'r. Law, 530; Vders v. The State, 3 G. Greene, 74; State v. Ilmjlics, I Ala., 655. The Attorney General, for tho state. Lyon, J. This case is ruled by that of Donfjhtss v. The ASfafc, 3 "Wis., S20, in whicli it was held that a verdict in a criminal case where there has been neither arraigmnent nor plea is a nul- lity, and no judgment can be rendered thereon. The learned .attorney general concedes this to be so, unless (quoting his lan- guage): "1. That decision should be held not api)licablo to a simple assault and battery; or 2. That error was cured by the order entering the plea nunc j»u) tnnr/ or 3. The statute of 1871, ch. 137, sec. 30, cures the defect. (Tay. Stats., 1042, § 17.)" In Douf/lass v. State, the offense charged in the indictment was for erecting and maintaining a nuisance. Like a simple assault and battery, this was a mere misdemeanor, and we do iMulant was nr- vrrsci.! on I'rror, nc pro tunc for before a euled tu lu {guilty by t lie pk'udod i court; and lead thereto jver pleaded which need the circuit eriu^ that a .'d judgment iiit that tlic iiinal action, G. Greene, \ The St^ his laii- :)lical)lc to a iired l»y the a statute of 042, § 17.)" indictment :e a simple and we do DAVIS 1-. STATE. GOV not perceive how any distinction can be made in the two cases in respect to the neccessity of a plea. Neither do we think that the defect was cured by tlie entry, after a verdict, of a plea nunc jm) tunc. We have been referred to no authority which 8ui)port8 the opposite view, and are not aware of any rule of criminal practice which supports it. And it nuiy be further observed that the jurors' oaths prescribed by statute are framed on the hypothesis that the issue is to be made up before trial. The jury in the circuit court were sworn to "well and truly try the isme^^ between the state and the plaint- iff in error according to the evidence. II. S., ch. 17'J, sec. 4. When the jury were so sworn, ami when the verdict was ren- dered, there was no issue of record to try. The form of the jury oath in the justice's court is somewhat different, but the import is believed to be the same, U. S., ch. 121, sec. 16. Tlie statute of 1871, cited by the attorney general, does not roach the case. It provides for correcting certain errors or mis- takes in the record by amendment. The plea ordered by the court to be entered is not, in any correct sense, an amendment. The court, by its order, did not attempt to amend anything, but to supjdy, after verdict, an entire proceeding, which should have been taken before trial, and which was essential to a proper trial. The case of State v. Cole, 19 Wis., 129, is not an authority for sustaining the practice adopted by the circuit court in the pres- ent case. It appears in the report of that case, that "after the jury had been impaneled and sworn, the defendant was put to plead, and jdeaded not guilty." In a head note it is said that this was not error. But so far as the report shows, the point was not argued or decided. It became of no importance after the court awarded a new trial on other grounds. We do not decide the precise point here. We oidy hold that after verdict, it is too late to order a plea to be entered for the defendant in a criminal case without his consent, and then to i*ender judgment on the verdict. By the Court. — The judgments, both of the circuit court and the justice, are reversed. 60S AMERICAN CRIMINAL REPORTS. Stubds vs. State. (49 Miss., 716.) Phactice: Presfltice of rei>pondent during trial — Record. Judgment will be reversed where the record does not offinnatively show that the respondent was prest^nt tliroughout tJie trial and when tlie venlict was rendered. Taudei.l, J. The plaintiff in error was indicted, tried and convicted of the crime of mnrder. The only point made here is, that the record does not show, affirmatively, the presence of the accused throughout the trial, and particularly that it does not show his presence when the verdict of the jury was returned, nor when tlie motion for a new trial was made and overruled. The record states the presence distinctly, of the accused, on each day of the trial, down to the lOth day of October, 1S72, tlie twelfth day of the term at which the trial was had, on which last day tiie entry is this: "Saturdjiy morning, eight o'clock, Octo- ber 19th, 1872. Court met pursuant to the adjournment of yes- terday. Present, the same as yesterday; the Hon. Ukiah Mill- SAi's presiding." The entry on the IStli, or the day previous to the foregoing, was as follows: "This day comes the district attorney, who prosecutes on behalf of the state of Mississij)pi; and the said do- fendant, being brought into open court and placed at the bar thereof, and also appearing by his counsel." One question is, whether the entry of the 19th, to wit: " Pres- ent, the same as yesterday," is an affirmative statement of the presence of the accused. Can Ms presence l)e InfoTeiL even from that entry? Does the entry import more than the presence of the court and the usual officials? As to the motion for a new trial, the record says: " And afterwards, to wit, on the 2Gth day of October, 1872, being the eigliteenth day of the term, the fol- lowing proceeresent would fail; for he is voluntarily absent when he ought to be present, and cannot coniidain of the consequences of his own voluntary act." The voluntary absence of the defend- ant in that case was held to be a waiver of his right to be present, he beinir under recoijnizance, and the court said: "His own illegal act should not l)e permitted to thwart the process of the law to his advantage." lie was present at the opening of the trial, and voluntarily absented himself at the rendition of the verdict. Vol. I.— ;{9 ! i ^J , , 1. ■Ill mi n ■ ' 610 AMERICAN CRIMINAL REPORTS. In tlie case at bar, the accused was in the custody and suhjoct to the orders of the court. Scaggs v. The State, 8 S. «fe M., 722, is quite analagous to tlic case under consideration. It was insisted in that case, as in tiii? that the point made in the ai:)pellate court was not raised in tlio court below. Tlie court say: " The error whidi first protrudes itself to notice is the circumstance that it does not appear tliat the prisoner was present during the whole of the trial of the in- dictment. The only evidence of his presence at all is contained in a bill of exceptions, where hs is stated to have asked some questions of a witness, but he does not appear to have been con- fronted by the witness against him, which was his constitutional right. Const., art. 1, sec. 10. " It must a])pear, in this class of crimes, that tie accused was present during his trial, or it will be error. The ]n'e.>eiico of the prisoner cannot be inferred, but must appear affirmatively, ami, for all that appears in this record, tlie questions directed to the witness by him might have been propoiuuled in writing." The rule declared in Seaggs v. The State is repeated in Dy- son V. The State, 2G Miss., 383, the court in the latter ca?e sav- ing: "that the record must affirmatively show tliei^e indispenN'i- ble facts, without which the judgment would be void — sucli as the organization of the court; its jurisdiction of the subject mat- ter, and of the parties; that a cause was nnule U)) for trial: that it was submitted to a jury sworn to try it; that a ver.lict was rendered and judgment awarded." And it is added, tliat "out of abundant tenderness for the right secured U) the aceiised by our constitution, to be confronted by the witnesses against liiiu, and to be heard by himself or counsel, our court lias gone a stop further, and held that it must be shown by the record that the accused was present in court pending the trial." Thi,-,, it is further said, is upon the ground of the peculiar sacrediiess of this high constitutional right. In Wolf d'. George v. Martin, 1 IIow., 30, it is doehiivd to be " an acknowledged princii>le that nothing can be presumed for or against a record except what appears substjuitially upon its face." This rule is ex])laincd, in Dyson v. The State, to have refer- ence "to those indispensable requisites necessary to the validity of the record as a judicial proceeding," and that it has '* nu apitli- STUBBS V. STATE. 611 lIv and sulyoct lalagoiis to tlic case, as in this, t raised in tlie first protrudes »t appear tliat trial of the in- ill is contained re asked some lave been con- 1 constitutional l.e accused was presence of tlie •niatively, ami, ilirected to the rriting/' 'peated in Dy. atter case say- use indispensa- void — suc'li as le snitject niat- for trial; tliiit : a verdict was •led, tliiit •• out :he accuseil !>}■ .'s a^-ainst liini, las i^one ii step ecord that the ." Thi.-,, it is sacrodiiess of deeliireil to l>o presumed for tially upon its to have refer- to the validity has " uo apj>li- cation to those incidental matters which transpire (luring the progress of the proceeding in court." As to the necessity of the presence of the accused pending the trial, see KeUi/ Ji Little v. The State, 3 S. &. M., 528; 12 Wend., 34i; 7 Cow., 525; 13 Gratt, 7G3; 7 Ohio, pt. 1, 180; 6 Ban-., 584; G Ired., 104; 5 Pike, 431; 10 Mod., 248; 19 Johns,, 39; ri'im V. Commomeealth, G liar. (Pa.), 103; 1 Park. C. C, 474; Jtcx V. Ilani^, 1 Ld. Eayni., 2G7; 4 liar. (Pa.), 129; 31 Me., 502. The rule that the accused in cases of felony must be present in person pending the trial, and that this must be affirmatively shown by the record, as we have seen, is not an open question in this state. See cases cited herein. Running through all the authorities with regard to this rule, there is a clear distinction between felonies and misdemeanors. 1 Eish. Cr. Pr. § 684, et seq; 25 Vt., 93; 19 Ark., 214; Sprague, 227; 4 Cal., 238; 1 Curtis, C. C, 433; 3 S. & M., 518; 2 Hilt., 523; 10 Vt., 497; 2 C. «& P., 413; 1 Salk., 55; 12 Wend., 344; 3 Deiuo, OS; 1 Ya. Cas., 172; 1 Parker, C. C, 360; 3 Burr., 17SG; 4 liar. (Pa.), 120; 7 Cow., 525; 2 Den. C. C, 459; G Eng. L. and Eq., 352. As to the application of the rule to motions between verdict and sentence, there is some diversity in the adjudications to the extent, that a simple question of law may be argued in the ab- sence of the accused, but the lietter opinion is, that the rule shoidd be adhered to in felonies from the arraignment to the linal sentence. 1 Bish. Cr. Pr. § 085; 14 Ind.,573; 1 Ch. Cr. L, 492; 10 liar, (Pa.), 04; 9 Cal., 115; 1 Bish. Cr. Pr. § 092. The result in this, as in many similar cases, is, of course, in conseijuence of the neglect of the clerk, through his inexperience or other cause. Hence, a special obligation devolves on circuit jut^ges and district attorneys to see that the entries of their pro- ceeilings are jtroperly niade. \ careful observance of this duty would leave causes to be determined upon their merits. Wlien the life or liberty of a human being is involved, there are " indispensible reciuisites," as stated in Dyson v. Tlie State, which can not be overlooked by an appellate court. The observ- ance of wdiich can not, according to the authorities pited, be in- ferred or presumed. The cost and trouble to the state, and to parties, caused by defective records, is very considerable, and tills expense, might, possibly, be not unjustly cast upon inatten- fc«',:| 111 n?r' iu 612 AMERICAN CRIMINAL REPORTS. tivc clerkd. If not corrected by these admonitions, legislation may become indispensable. The judgment in this case will be reversed, but the accused will be detained in custody, subject to the action of the proj) er court. Judgment reversed, cause remanded, and a new trial awarded. Wilson vs. Commonavealth. (10 Bush (Ky.), 52fi.) Practice: Proceedings on appeal after ]>risoncr's esca2)e. Where the prisoner has escaped and remains at liirjfe while appeal proec^'ilings are pending, the court will on motion of prosecution dismiss the apixnil. CoFKR, J. The appellant, having Ijeen found guiliy of tlie crime of murder and sentenced to be confined in the i^cnitcntiary for life, obtained leave to apply to a judge of this court Fdi- an order granting an appeal; and it aj)peariiig to the court before which he was tried, that there was danger tbat he would osc'iijje from the jiiil of that county, the sheriff was ordered to transfer the appellant to the jail of Jefferson county for safe laoiiin<(. On the way from one jail to the other, appellant jun»]»od fiom a window of the car in which he was being trans])orted, and niailo his escape, and is now at large. The appeal having been granted, the attorney general lias entered a motion, based on an affidavit of the deputy sluritl'. from whose custody the apjiellant escaped, to disniis,-; the appeal on the ground that as ajipeilatit is not in custody to abide sueh judgment as may be rendered, he has no riglit to ]>roseentf the appeal. It seems to us clear, both U])on princij)le ami authority, that the motion ouerht to be sustained. The court oUi;]it not to do a nugatory act; yet if we ]»roceed to try this appeal, the ajipellant cannot be compelled to submit to our decision if it shuulil he against him, and ought not therefore to be alh)\ved to reaj) the benefit of a decision in his favor, lie might thus bt* enaliled tu defeat the ends of justice entirely, for he may be able tu keep beyond the reach of the officers until l»y the death or removal of witnesses or other causes, hiis conviction upon a second trial ons, legislation but the aocnscd 1 of the pro]) er 7 trial awarded. s escape. appeal propi'H'.liujjs liss tlio apix.'iil. 1 guilty of the he [iCnittiitiary lis court f(»r an he court l)L'f()re lie would oscaiie Ljred to transfer >v safe lat'iiiiii;. juui])ed frmii a orted, and made ley general lias ! deputy slu'rirt". ;iiiiss the appoal Iv to ahide such to jiroseciitf tlio , authority, that ight not til (III a al, the aiipt'lhiiit if it should be iwt'd to reap the us he cnaiiled tu be able to keep th or removal of i a second trial ; r MOORE V. STATE, would he rendered improhahle, if not impossihle. As he has chosen to undertake to relieve himself hy flight, in contempt of the authority of the court and of the law, he cannot also invoke the aid of this court. In I'he State v. liijypon, 2 Bay, 99, it was held by the su- preme court of South Carolina, that wherever corporal punish- ment was either probable or certain, the defendant should be in the power of the court before they proceeded to hear a motion for a new trial ; and the court refused to hear an argument on the motion, but directed that a bench warrant be issued, that the defendant might be arrested and punished purouant to the judgment. In Jlex V. Teal and others, 11 East, 307, two persons were jointly indicted for a misdemeanor, and were tried together and convicted; and upoji an otl'er by one of them, who was then in court, to move for a new trial, the court in([uired if both were present, and being informed that one w\i3 absent, refused to per- niit the motion to be made, because a new trial could not be granted to one without granting it to the other also. The motion is sustained and tlie appeal is dismissed. MooKE vs. State. (44 Tex., 595.) Pn.vcTicE: Pfoceed'uKjs on appeal after prisoner's escape. Where the prisoner has escaped and remains at large while appeal proceedings are pending, the court will, on motion of tlic prosecution, dismiss tlie ap- peal, but not until a reasonable time has elapsed for the capture or surren- der of the prisoner. Moore, J. At the July term, 1873, of the district court of Fayette county, the appellant, Ilobert Moore, was convicted of the crime of rape, and adjudged to be contined in the peniten- tiary for the period of twenty-flvc years. But, having prayed for an appeal to this court, sentence on the judgment was stayed, and he was committed to jail, as recpiired by law in cases of fel- ony, where the defendant ai)i)eals, until the decision of this court could be rendered in saitl appeal. The transcript of the record was filed in this court September 23, 1873. On the 13th day of I' k h f 54" I .i:m 614 AMERICAN CRIMINAL RKPORTS. Febnmry, 1S74, the civso comino* (»n tu 1x3 lifurd by tliid cmirt in the reguhir call of the docket, and no uppearance beiiij^ made for np])ellaiit, tlie attorney general suji^jf^ertted that a])pelhint hiul escaped from the jail of said Fayette county, to whidi lie hud been committed as aforesaid, ])endiiiii; his said appeal, on the ITtli of October, 1S73, as shown by the affidavit of the sherill'of siijd county accomj)anyin_<^ said motion, and moved the court, on uc- connt thereof, to dismiss said ap])eal. This motion, after due consideration, was however overruled. It has been the uniform practice of this court, since the enaet- ment of the law rcquirinj^' defendants in cases of felony tu he committed to jail j)endin^ their appeals, to refuse to consider such appeals, uidess at the instance of the state, when the appol- hmt has escajied from the custody to which, as recpiired by law, he has been committed. The a]»pellant will not be heard to question the c(»rrcctness of the judj^ment while in llaifrant viohi- tion of the autliority of the court, and when he has broken the condition upon which he was authorized to take an a])peal. l.ut althou^di the court lias always refused to permit aj>i)ellants to appear by counsel, and have their appeals heard and decidetl un- der such circumstances, it has never held that the mere fact of un appellant's escape from jail forfeits the appeal. It susju'iidn the ri<;lit to prosecute it, but does not abro;^ate the jurisdi(!tioii of this court on it. And if the appellant should be reca[»tiiro(], or voluntarily return and surrender himself tt) the custody to which he was committed, he mi^dit then ask to be heard, and tlie court will consider the apj)cal, and if the judgment is found to be erroneous it will be revised. Hut undoubtedly there must be some period of time after which the court will not suffer its docket to be incumbereil and the business of the court t(» be impeded with appeals by parties who are contemning and defying the law in virtue of whieh they claim the right to bring their cases to this court. If, after a reasonable delay, of which the court must judge from the chiir- acter and circumstances of the case, the appellant fails to sur- render himself to legal custody, so that the court may pro])er]y proceed to the disposal of the case on its merits, it must regard and treat the appeal as voluntarily abandoned and strike it from its docket. There has, we think, quite sufficient time elapsed In this caso T LINE t). STATE. G15 since appc'llaiit\s escape fur the court to make a final disposition of it. And us a submission of tlie case on its merits is not asked by the state, and it is not shown tliat apjjellant lias been recaptured, or lias v(duntarily surrendered himself into custody, iind no api)earance has been made for him in this court by coun- gcl, his appeal, in our opinion, should now be dismissed. And it is accordingly so ordered. JJimnissed. Link vs. State. (51 Iml, 172.) riiACTiC'E: ChxttKje of rviim —Alibi — Etromous charge. A (k'fondant ciui luivc but ont; chaiigo of venue for tlio same cause iu the same cusi.', and when lie luus had tin; cxse removed fi-oni one judge on the ground of bias and iircjudiee on the i)art of such judge, he cannot have it removed from another jiid^'f on tlie same ground. A charge that "evidence of an alibi is evidence of a suspicious character" is eiTor. It is error to refuse to cha'gc ihat in a criminal case, the dcjfendaiit is presumed to be innocent, and before he can be convicted the state must prove his guilt beyond a rc'iV-pellant entitled to two changes of venue in the same case for the same cause? We think not. The w i\ %-l if** CIG AMERICAN CRIMINAL REPORTS. < { i I statute nowhere authorizes a second change of venue to the same party for the same cause. The court had no more power to grant a second cliange than it would have to grant a third, fourth, or fifth, or any nimiber of clianges. The ends of justice demand this construction of the statute, otherwise it woukl be in tlie power of a defendant, charged with a criminal oft'ense, to dcfuat a trial entirely. After the overruling of the motion for a change of venue from Judge I'uskirk, the appellant was arraigned, and ])leude, conflicts with this view in the statement of the in- structions, it will be noticed thsvt the case was decided upon an- other ground. This court has frequently held that sufHcient evidence of al'ihi to create a reasonable doubt in the minds of the jury, of the de- fendant's guilt, should result in an ac(piittal. Adams v. The fState,i2 ind,, 373; ]Vi'ftt v. The State, iS id., 183; Bimes v. The State. 46 id., 311; Kaufman v. The State, 49 id., 248. The appellant, at the proper time, ashed the court to instruct the jury as follows: " 0. In a criminal case, the defendant is presumed to be inno- cent of the crime with which he is charged; and before he can "be convicted of the crime with which he is charged, the state must prove him guilty of the crime, beyond a reasonable doubt." This instruction was refused by the court, and exceptions taken by the appellant. We think the refusal of this instruction was error. 2 G. & H., 415, sec. 104; Long v. The State, 46 Ind., 582. The omission to give this instruction was, doubtless, an over- " B h. '''i C18 AMERICAN CRIMINAL RErORTS. sight in the learned judge who tried the case below, but so the record is nuule up. There are several other instructions asked by the appellant, and refused by the court, which express the law, but as tlioy were given by the court on its own motion, in substantially the same words, the refusal was not erroneous. IJut as to the sixth instruction, above, we nuiy say, as was said by OsitcniN, J ., in the ease of Lonyv. The State, suj}/n, that " we have carefully exuin- ined all the instructions, and iind that the second branch of that asked and refused had been substantially given, but they were silent as to the j)resuinj)tion of innocence. The court should have charged the jury on that subject, as asked, and an error was conuuitted by its refusal to do so." The judgment is reversed, cause remanded, with directions to sustain the motion for a new trial, and an order to return the prisoner. Hamilton vs. I*koi»le. (29 Mich., 173.) Pbactice: Prclimiiian/ cxamhuition — lii/onnatio>i — ^flsJohl(lc)• of foioi/.v — Motion to quash — Erideiice — Motive — CrosN-ej-ad counts. A motion to quash an information on the grouml of misjoinder of counts is »<]• dressed to the discretion of the court, and is not rt>viewable on writ of error. On the trial of an information charging the burning of property with intent to defraud insurers, evidence whicli ti-nds to show a motive is admissible. A statement by one respondent, made the day iifter the commission of tiio crime, is not aduiissible against his co-respondont, although it had appeared that there was a conspiracy between them to connnit the crime, V, but so tlio le appellant, but as tlity tuntially tliu to tlio sixth UN, J., in thu ufully exaiii- anch of that ut the}' weru court shuuld !iii orror was .h directions o return the kr of coiDits-' II — Coiitnitlict- \'rlrilff/cil ijiKn- iiioiii/ of (icriiiii- I'rtsiiiii/jtioiis I// utiii^f altorni'v, tinjj iuaj,'istniti , legal lioliiliiy, i.s s not a judiciiil 110 olijcctioiiiililo liii'li tln'i-e is 110 il counts, of counts is iifl- f)ii writ of cnor, y with intent to ulinissibli?. iniissinii of tiic it had appeared me. HAMILTON V. PEOrLE. 019 TIio resixjiident has a viyht, on cross-exainination of a witness for the prosecu- tion, to (haw out from iiini evidence which tends to contradict materiul cn- denco which has lieen jjjven by anothiT witness for the prosecution. Wliero an luiconiphoo volunteeiB to testify, in a criminal case, ho must testify fully, and may bo compelled to testify a.s to statements made by him to his counsel with regard to the case, and it seeiin: that the counsel may also bo compelled to testify as to such statements. It is proper to ask a sustaining witness, on cross-examination, whether ho had said he woulil not l)elieve the imiicached witness under ixith. It is proper to ask an impeaching witness, who luis testiticd to the bad reputiv- tion of an impeached witness for truth and veracity, whether from that rep- utation he would believe the impeached witness under oath. On the separate trial of one defendant on an information, some counts of which charge him jointly with the others, and some of which do not charge the otlense jointly against all, the jury should not be allowed to consider any count in which all are not jointly charged. ^Vhat criMlit is to be given to the testimony of an accomplice, whether coiTobo- rated or uncon-oborated, is a matter exclusively within the province of the jury. On the trial of a criminal case, the jury are not judges of the law, but it is the duty of the jury to accept and act upon the law as given them by the court. There is no presumption of fact which is not entirely withui the disiwsal of a jury in a criminal case. Ekuou to Cdlhorai Circuit. Jirowii t(; Pttttei'son and M. S. Brackett, for plaintiff in error. Byroii D. Ball, Attorney General, for the people. Cami'ijki.l, J. The defendants were indicted for burning a b.arn, with intent to defraud an insurance company. The con- viction was had of this plaintiff in error (defendants below being tried se})arately) upon the testimony of AVilliani Fuller, who was sworn as state's evidence. Questions arose below on some pre- liminary matters, and upon the sufficiency of the information, as well as on points ruled at the trial. A considerable part of the record is taken up with the various ruliuijs and proceedings upon pleadings in abatement, which preceded the issue of not guilty. The plea relied upon was, in brief, that the complaint before the justice of the peace was brought on for examination on the 21st day of Febrmiry, A. D. 1872, and after it had partly com- iileted it, was adjourned until the 22d, when some further testi- mony was taken, and an adjournment was had until the 23d, and thereafter the proceedings went on to completion. The ob- it. 020 AMKRICAN CRIMINAL REPORTS. 14 jection relied on is, that the 22d of February being not ft law day, tlio justice lost jurisdiction. This is all that aiipears in the original plea; and admitting it to be true, and without reference to the subseiiuent proceedings at the circuit on either side, m'o do not think it can be sijstuined. The justice in these examinations does not act judicially, in the technical sense, but in his capacity of a conservator uf the peace, and the jiroceeding is one which, at common law, was con- ducted very nuich at discretion. It is possible that the regular- ity of the arrest and continued custody of the jirisoners may have been open to (inestion; but we have found no authority for holding that a crin\iiuil examination before a justice is void, if a complaint has been made before him on oath, and the accustd are finally held to bail or committed on a law day, upon testi- mony taken in their presence in pursuance of it. "Whether irregu- lar or not, we find no authority for regarding such i)roceediiiics as nullities. AVe can see no reason why a complaint ])n»perly verified should cease to be valid to maintain an examinatinii, unless the parties accused are either discharged or held to cdui- niitment, so long as there is no substantial break in the proceed- ings. No formal record is required to be kept of them, and the continuance from day to day is not an adjournment of such a nature that the failure to announce it would be of mhv conse- quence. The proceedings are by the statute c itemplau'd as continuous, unless formally adjourned f'" k to time mid the close of business on one day would , it over unt rhc next business day, as a matter of course, Uh s other' vise ordorod. The adjour;.inent to the 22d, if illegal, would no' interrupt the legal course, Vt^hich would take the imittcr over to the 23d; and whether the justioe did or did not consider some testiniony which •was not admissiljle because irregularly taken, his discretion in ordering the commitment cannot be reviewed in any such way as proposed here. The plea does not dispute the fact that there was a prelimin- ary examination upon a ])roper complaint before a nuigistrate having jurisdiction, resulting in a commitment; and this, we think, was all that was necessary to justify proceeding by in- formation. A motion was made to quash the information, resting mainly on the misjoinder of counts, the insufficiency of some of them, g not ft law (linittiiii,' it H'UCL'etlill'rd (^urftiiiiiutl. Klii'ially, in atur of tlio w, was c'uii- !»c refill lar- soiiers may itliority for 3 iti void, if tlie accusL'd upon testi- tlier iiTC''ii- n'oceedinics it jn'oporly wainiiiatioii, old to ('(iin- le proceed - 3in, and tlic t of such a ni\v contJe- uiplau-d as • time, and !• unf rho ise ordered, terrnpt the le 23d; and lony which scretion in y such way preliinin- niai^istratc 1 thi.s, we ng hy lu- ng mainly e of tliem, llaint before the magistrate and the information arc both so confused and multifarious that the court below might very properly have declined to compel defendants to go to a trial. We have seldom seen pleadings so fairly open to criticism on this liead. Ott'enses are charged to which all the defendants could not possibly be ameiuible. Some counts charged no offense at all; others contain the charges upon which we suppose the trial was really had, and upon these there is, we thiidc, uo fatal objection, as the rules of criminal pleadings under our statute justify the introduction of various counts charging the owner- ship of the property burned, and the position of the respond- ents as principal or accessorial offenders In different ways. See An7i>sv. J\'oj)h', 13 ^lich., oil. It is intimated in T/ie Jvintj v. Kingston, S East, 41, that a demurrer would not lie to the whole information for such a mis- joinder; but that the pro])er remedy was by motion to quash. Such a motion is addressed to the discretion of the court. It ought to be granted where the confusion is such that it is likely to interfere with the means of defending, by misleading or per- plexing the prisoner in meeting the case or preparing for trial. ]>ut when the court can prevent any mischief, as it usually can, by confining the proof to the single transaction on which the defendant was examined, or on which the prosecution has opened the testimony, or by coni])elling an election in the outset, no wrong is done by the refusal to quash. We do not hold that, under our statutes, requiring a motion to quash in lieu of a motion in arrest or to save a ground of P 632 AJIERIC iM ORIMINAL REPORTS. tw. fv ^1 4 error, such a motion is always discretionary. But sucli a moti(in for misjoinder appears to be discretionary. 1 ]?ish. Cr. Proc, § 447; T/ie King v. Kingston, 8 E^st, 41. Where the various counts may all refer to the same transac- tion, the safer course usually is, undoubtedly, not to quash, but to rcgnlate tlie proof on the trial as far as may be necessary to prevent surprise or the misleading? of the prisoner, and to con- fine it to that transaction. See Rex v. Young, li. & Ry., 2S0 (n.); Rex v. Ellis, G B. & C, 145; Anoiiynious, 2 Leach C. C, 1105. "VVe had occasion at the last term to consider and sustain tlio propriety of allowing proof of tlie entire transaction, in Pcojde V. 3/(1 r ion, and Van SieA'le v. People. "We think there was no ruling below whicli we can properly review, which rendered it erroneous to ])ut respondents to their trial, altliough the misjoinder was gross and improper. The court on the trial regarded the case as one where tlio offense was that of burning proj^erty with intent to defraud in- surers; and it was tried entirely on that theory. The (pictitiuns raised and discussed on the e.\cc]>tions and charge are to be con- sidered in view of such a state of facts. Tlie theory of the prosecution depended entirely on the evi- dence of the respondent Fuller, who swore to a j»lan, made in advance, to burn the barn ;n question by putting a liglited can- dle in a place where, as it burned low, it would reach litter and other combustible material, and set it on tire. It was to operate like a slow match. There is no lirect evidence of the guilt (if anv of the defendants, but thev were convicted on circunistaiUial evidence, which derived its force chieily as explained by Fuller's testimony concerning the previous avrrangement. AVith that out of the case, or discredited, no conviction could have been justified. The first ruling objected to and mentio-. -d on tlio arg-.nncnt, related to the admission of certain chancerv records, showiu'' that in ISOO, a bill was filed to rescind the conveyance of the land on which the barn was situated. The gnunnl set up in the bill was fraud alleged to have been practiced by Thomas \V. Hamilton and one >«athaniel l>aost facto. Obieclion was made to the reception of certain evidence of the amount of hay in the barn, that there was no valid count charg- ing the burning of anything but the barn, and that respondents had not been examined upon such a charge. "We think that the fact of the fullness or emptiness of the barn might have a very clear be-iey, that, in a conversation four or five months after the fire, J.fendant, when asked whether he could keep the farm, said "he did not care; that he had got a good insurance on the house, and it might go to blazes, with the barn," was not, we think, prooi; of any ad -ussion that the barn had been burned by defenc^ant, and that was the only point on which it can be claimed it had any relevancy. AVe also think the defendant, Thomas W. Hamilton, could not properly be charged with the false statement of William Ham- G24: AMERICAN CRIMINAL RErORTS. m. i'n^m:i ilton. It was not a part of the res gestw. It could not aid in defrauding the insurance company, in any way, and must be re- garded as an independent assertion or act, within the excludino- rule in People v. Knapp, 26 Micl.'., 112. It does not aj»pear sufficiently under what circumstances a remark about insurance and the probability of more fires was said to have been made by the respondent, James Hamilton, and we cannot, therefore, determine it to have been erroneously admitted. The same rule will apply to the impeaching testimony on Van Valken- burgh's statements about AVilliam Hamilton. We can find nothing which could render it admissible for the witness Iliram Allen to detail what was said by the witness Let- tie Campbell concerning tiie facts which occurred the night of the fire. It is hearsay, pure and simple. Henry Hamilton, being called by the prosecution, gave testi- mony concerning wliat took place at a certain party or dance at James Hamilton's the night of the fire. Joeing asked on cro:-»- examination whether the dance was not talked of some time be- fore it was got up, this was objected to. The defense stated that they proposed to show it was talked of, and invitations given a week -r ten days before hajid. The court ruled out thecpiestiun, and the defense excepted. To understand the bearing of the question, it will be necessary to refer to the account given by Fuller, of the proposed plan for burning the barn. That was, in substance, that, in order to pre- vent any suspicion, a dance should be got up at another ])erson'3 house, and that during the course of the evening one of the Ilamiltons was to go out for a supply of cider, and take advant- age of that opportunity to light tlie candle, which would take some time to burn down to the struw, so that they sliould bo away at the party at the time the fire should break out, and so escape sus])icion. If the party had been arranged, and invita- tions given earlier than the alleged interview with Fuller, his whole story would be falsified. This was, then, a vital }>oint in the case. It was, very clearly, legitimate cross-examination, upon the st ,•, test rules. It referred to the very dance, con- cerning which the witness had been examined in chief, and was quite as relevant to the subject as any of the other circumstances on which he had been questioned. The objection that it would not contradict Fuller would not, if true, destroy its relevancy. HAMILTON V. PEOPLE. 625 Id not aid iu must be re- he excludiiiir 3 not aj.puar >ut insurance been nuide lot, therefore, . Tlie same Van Yalken- ssible for the 1 witness Let- . the ni<^]it of n, gave testi- ;y or dance at ked on cror^s- unie time ho- se stated tliat tions given a ; tlie (|uestiun, 1)e necessary losed phm for order to ]»re- •ther ])erson's ^ one of the take advaut- 1 wonkl take ey sliuuUl bo V out, and so 1, and invita- h Fulk'r, liis k'ital jioint in ■examiuatioii, f (huice, con- hief, aninion that the testimony in regard to j)laying cards in the barn with lights should have been allowed to be fully given. Fire might take from such a cause, and the defense were entitled to show all circumstances reasonaldv bearinj; on such a possibility. Several qtiestions of an impeaching nature were excluded on the groimd that Fuller had made them to his counsel, and they were therefore privileged. "We think the rule of ])rivi]ege was misunderstood. "We have no disposition to narrow or hanipei- privileged communications between clients and tlieir attorneys or counsel. "We concur fully in the broad and sensible doctrine laid down by Lord Selborne, in Minet v. Morgan, L. 11., 8 Ch. Ap., 301, that neither client nor attorney can l)e coinpelkd to an- swer and disclose matters of confidence. But the privilege is one created solely for the benefit of the client, and ihero is no ground for protection where he waives it. 1 Greenl. Ev., §'J4;>; 1 Stark. Ev,, 40; Benjamin v. Covcjitry, 19 "Wend., So."*. AV hen a co- defendant in a criminal case turns state's evidence, and has at- tempted to convict others Ity proof also convicting himself, he has no right to claim any privilege concerning any of the facts bearing upon the issue. He has waived all privileges which would permit him to withhold anything. Fonter v. l\<>plc, IS ;Mich., 200. It was expressly held in Alderman v. People, -t Mich., 414, that this waiver covered confidential comnmnica- tions to attorneys, and there is no more reason for saving these than for saving the privilege against criminating disclosures conclusively waived. Both client and counsel may be compelled to disclose the client's statements which are pertinent to the issue. :!:ii HAMILTON t'. PEOPLE. 627 y was not al- with reasoiui- lade, when lie 1 positive and cl a bribe, and nt of Tlionias ,ce were fixed e, liowever, on ed concerninir ot been sworn, rt. ard to jdaying allowed to be nd the defense >lv bearing on 3 excluded on nsel, and they ])rivile<,'n was ow or hamper heir attorneys usilde doctrine ', L. 11., S Ch. •inpelltil toan- )riviloge is one 'C is no fifroiind §L>4:5; 1 Stark. . When a co- cc, and has at- ig himself, he V of the facts vile^es which V. J\»J>/i., IS I V. /*(;r>j>le, i 1 coinniunica- r saving these ig disclosures e compelled to it to the issue. A witness, "William Gayton, having been sworn, to sustain Fuller's reputation for truth and veracity, was asked whether he had not said at a certain time atul jdace that he would not be- lieve Fuller under oath, and answered that he did not thiidc he had done so at that time, but that it was likely he might have said so at the time of Fuller's arrest for this crime. This an- swer was stricken out as not responsive. lie was then asked whether the arrest aftected his opinion of Fuller one way or the other. This was ruled out, as well as a proposition to show his statement to dift'erent persons to the same eftect, that he would not believe Fuller under oath. The objection that the answer was not responsive was one which did not concern the prosecution, if it was relevant. The party examining a witness may sometimes object to volunteered and irresponsive statements made by a witness aside from his questions. But if he is willing to accept the answer, and if it was one he would have had a right to elicit, the opposite party can- not complain. There are cases, as in Oreennicmv. O'Connor, 25 Mich., 30, where the deposition of a witness is taken on set- tled written interrogatories, where an answer not called for may be objected to by either party for surprise, inasmuch as, if the question had been so put in writing as to call for it, other inter- rogat(»ries might have been framed accordingly, which might have led to exi)lanation. Jjut no such difficulty can arise where the witness is examined openly and orally, and where a question calling for such an answer would have been competent. Was it proper then, to ask a sustaining witness, on c^ss-examination, whether he had said he would not believe the impeached witness under oath? The purpose of any inquiry into the character of a witness is, to enable the jury to determine whether he is to be believed ou oath. Evidence of his rei)utation would be irrelevant for any- other purpose, and a re])Utation which would not^ atiect a wit- ness so far as to touch bis credibility under oath, could have no proper influence. The Knglish text books and authorities have always, anil without exception, retpiircd the testimony to be given directly on tliis issue. The questions put to the impeach- ing and supporting witnesses relate, lirst, to their knowledge of the reputation for truth and veracity of the assailed witnesses; and, second, whether from that reputation they would believe ■ 1 ■]. ' yi 1' '^ >'^iii«y :. V i V- ■ 4 62S AMERICAN CRIMINAL REPORTS. him under oath. The only controversy has been, whether or no tlie ground of belief must rest xipon and be confined to a knowl- edge of re])n Nation for veracity only. But confined to that, the authorities are harmonious. 1 Stark. Ev., 237, ecics of reputation, and the neighborliood and time of its existence; aiul what was said further was not in the case, and cannot properly dispose of the matter. The objectini; alleged to such an answer l»y a witness is, that it eimbles the HAMILTON V. PEOPLE. 62U 1, whether or no ined to a knowl- ined to tliat, the et seq.\ 2 Phil. jcision is found ,70. ir witness is held 311 has affected a vhat tlie witness 1 is good or had, r. And since it disregard a wit- ;ters, it ])econio6 h the opinion in been commonly racter are often tion, base their y or may not he iiony. AVhen the ited, the answers I) creep into liis [1 authorities dis- )usly (inestioned. cable that of the ! contained nidro 'or. Phillips r. IS referred to iu urt, after reason- red the (juestion The Americiin ) have (lisci)veri'd >y do iiowever, as on which should ualities. In 11' i- ip on the record leighborhood and er was not in the The objectioi; at it ei\aMes thu vi-itness to substitute his opinion for that of the jury. But this is a fallacious objection. The jury, if they do not act from per- sonal knowledge, cannot understand the matter at all without knowing the witness' opinion, and the ground on which it is based. It is the same sort of difficulty which arises in regard to insanity, to disposition or temper, to distances And velocities, and many other subjects, where a witness is only required to show his means of information, and then state his conclusions or be- lief based on those means. If six witnesses are merely allowed to state that a man's reputation is bad, and as many say it is good, without being questioned further, the jury cannot be said to know much about it. Nor would any cross-examination be worth much unless it aided them in finding out just how far each witness regarded it as tainted. So far tis the reports show, the American decisions, instead of shaking the English doctrine, are very decidedly in favor of it, and have so held upon repeated and careful consideration, and we have not been referred to, nor have we found any considerable conflict. See, in New York, People v. Mather^ 4 Wend., 229 (which was the view of Judge Oaklkv, no opinion being given by his associate); People v. Itector^ 19 Wend., 569; People y. Davis, 2i id., 309; in New Hampshire, Titm v. Ash, 4 Fost., 319; in Pennsylvania, Boyle's E.c'rs v. Kreitzer, 46 Pa. St., •1G5; Lyman v. Philadelphia, 56 id., -ISS; in Maryland, A'';i/y this process it is divested of all that would not be readily comprehended by all men. In this way, over-nicety and technicality become less dan- gerous, if not absolutely harmless; and an apparent deviation in the verdict from the rules laid down is often no dej)ariure from the rules as supposed to be laid down. But if the court is to have no voice in laying down these rules, it is obvious that there can be no security whatever, either that the innocent may not be condemned, or that society will have any defense against the guilty. A jury may disregard a statute just as freely as any other rule. A fair trial in time of excite- ment would be almost impossible. All the mischief of ex pod facto laws would be done by tribunals and authorities M-holly irresponsible, and there would be no method of enforcing with effect many of our most important constitutional and legal safe- guards against injustice. Parties charged with crime need the be 8i;t aside, lo verdicts, 113 ht. All ap- e, not tl\iit of law, but by iter in orit found. People v. iSnj)jde, January, lS5o. There is uiuloubtedly some diiterenco between civil and crim- inal cases in re<,'ard to lej^al presunij)tions, which will ])revent a judi;e from instructingate those functions. Some err(»rs are alleged concerning the dealings of the C(»in't with (questions of fact. The jury were very fully directed that they must decide upon the facts for themselves, and we do not discover any instructions to the contrary, of such a nature as to call for further comment. The particular errors of this kind mentioned in the argument do not apj)ear material, or in any way calculated to mislead, and need not be referred to, unless upon the question of intent. It is possible the language used in that regard may have gone too far, but we do not deem it neces- sary to discuss it, as the judgment is reversed on other grounds, and it is not likely that such a question will arise again on a new trial. HAMILTON V. PEOPLE. 035 ich conduct Hly 'h! palli- is their j,'()od Di* just. the then ru- Dule, has not uniary, Is.W. il and criiii- ill i)revent a their wci;,'ht. f. Peiiph, 1(> riter on l'\ i- safely estah- •iivict an in- aceurdinir to • law, cannot niinals, who in such pre- imd happily iitions of the ect." Stark. or i)resuinp. I of the jury, tion of testi- cienco of tlie ^Miilty." 2 i)W the func- ions. of the coin-t lirected that |<1 we do nut nature as to i»f this kind vl, or in any !J to, nnle>.s nai^e used in em it neces- ler grounds, ^in on a new Xeither are wo disposed to discuss the (piestion concerning the precise limits of a reasonahlo douht. The jury were told they could not convict without heinj^ satisfied to a moral certainty, and that defendant was entitled to the presumption of innocence till every branch of the case should be established against him by evidence. They were also told that if they found a single ma- terial fact inconsistent with his guilt, they could not convict. It is very possible that the definition by the court of a reasonable doubt, as being such a one as would prevent the jurors from act- ing in their most important concerns, would, if standing alone, have been of questionable sufficiency. Yet whether correct or not, it could certainly have done no harm with the aid of tho other instructions given. l)Ut we do not think that juries can derive any help from at- tem])ts, by numerous and complicated requests, to explain what would be very much plainer without them. If a jury cannot un- derstand their duty when told, they must not convict when they have a reasoiuible doubt of the prisoner's guilt, or of any fact essential to j)rove it, tliey can very seldom get any help from such subtleties as may require a trained mind to distinguish. Jurors are presumed to have common sense, and to understand common English. But they are not presumed to liave profes- sional, or any high degree of technical or linguistic training. The majority of s))ecial re(iuest3 in this case, on both sides, might have been omitted with advantage; and if the jury came to a wrong conclusion — on which we have no right to speculate — wo do not conceive that any course that might have been taken, in regard to most of the questions propounded, would have relieved them from their difficulties. For the reasons we have given, the judgment must be reversed and a new trial granted, and the respondent must be remanded into the custody of the proper sheritf, to be held in custody un- til bailed or otherwise dealt with according to law. Cooi.KY, J., and Guavks, C. J., concurred. Ciiristiancy, J., did not sit in this case. Note. — In Lindsay v. People, G3 N. Y., 143, it was said that, " Although it is not usual to suffer a conviction upon the wholly uncon-oborated testimony of an accomplice, and juries are advised not to convict without a confirmation as to the material facts; still if tlie jury are fully convinced of the truth of the statement of a witness thus situated, they may comict upon his testimony alone." The court I. I I 636 AMERICAN CRIMINAL REPORTS. further say " It beinjf merely a rule of practice and not of law, that an accom- plice should be coiToboratcd to justify a conviction upon his evidfmce, it is not essscn- tial that the continuation when offered should jwint directly to the defendant, if it is of any part of the niat4?nal statt^nents of the witness, the question beiny in all cases whether the jury under all tlie evidence will believe the uncorroborated part of the testimony." I l^ \t hi' V ill (If Barclay vs. State. (55 Ga., 179.) Practice: Disposing of mortgaged property. Under an indictment for fraudulently disix)'tintf of niortfr-itred property it is not udniissiljle to allege in the indictment and prove on the trial a mis- take in the description of the mortgaged property in the mortgage. Jackson, J. The clet'emlant was indicted under se< '■ in 4000 of tlw Code, for luiving sold and disposed of a certain bay hoi'tte mnle, after having mortgaged the said mule to the mortg.vgoe, with the intent to defraud the mortgagee. It was alleged in the indictment, that hy mistake the mortgage descrilied the animal as a bay mare mule. Evidence was admitted to show the mis- take, and the defendant was convicted. Vv'e think the court erred in admitting the evidence, and that the conviction is ille- gal. In a civil case, this evidence may be admissible, but in a criminal case, we hold it is not, where the instrument in writing is the basis of the prosecution. The judgment is, therefore, reversed. State m. Neely. (74 N. C, 425.) Assault and Batteuy with Inte.s't to Commit Rape: AssnuU —Enilence, On an indictment for assaidt and battj^ry with intent to commit rape, the o\i- dence waH sulwtantialiy ;is follows : The prosecutrix, a white woman, having part4.'y the respondent, who called to her to stop three times, and was catching up with her. He pursued about a quarter of STATE V. NEELY. 637 a niilo through the woods, when coming to the edge of the woods he saw a dwolHng house near by, and turned back and ran off. It was held: That tliere was sutttcient evidence of an assault. That there was sufficient evidence of the intent to commit rape. Rodman and Bvnum, JJ., cEssenting. Indictmknt, for an assault with intent to commit a rape, tried before Schkxck, J., and a jury, at fall term, 1875, of the superior court of Cabarrus county. It was in evidence that on the 10th of July, 1875, the prose- cutrix, a woman over ten years of age, and a young girl were returning home, along the track of the North Carolina Railroad, a few miles from Concord. When they reached a point on the railroad at which a country road crossed the same, the prose- cutrix and the girl separated. The road taken by the prosecutrix led through .a woods about a quarter of a mile, to the hoube of her brotlier-in-law with whom she then resided. Yery soon after she loft tlic railroad, she lieard the prisoner, a colored man, "hol- ler" to her to "stop," and saw him running after her, distant about seventy yards. The prosecutrix then began to run "as hard as she fould," and was T)ursued rajiidly by the prisoner, who " hoUored " three times to her to " stop." The prisoner was ap- proaching lier, until the road emerged from the woods into a lane. When the piisoner reached the " mouth of the lane," and saw the dwelling house of the brother-in-law of the prosecutrix near by, he lied in the direction of the railroad and into the woods. 1 !(.' was ]iursued aud was taken shortly afterwards at a section lutuse. The prosecutrix was put in great fear by the cl a?e. The roc(jrd sent to this court upon appeal says: "There was otlu-r evidc"":" liearingon the intent with which he pursued the pr-^secutiix, which it is not iKJcessary to set forth in detail." The ofurt charged tlie jury: "That this was a vory serious charge against tlie prisoner, and it was the duty of the state to prove all the esscMtial facts constituting it, beyond a reasonable doubt, atul that if they had reasonable dou1>t, they must acquit." As to the assault, the court charged: "Tliat if the prisoner pursued tlie prosecutrix against her will, with tlie intent vio- lently to take hold of her person, and caused her to tlee, and then continued to pursue her, this would be an assault, and that if they foujid that the prisoner committed such an assault with tho AMERICAN CRIMINAL REPORTS. m ii 'l! !i }!► h ? intent carnally to know the person of the prosecutrix, violently and against her will, he would be guilty, and they must so find; otherwise they would acquit." To this charge the prisoner excepted. The jury rendered a verdict of guilty, whercupn!' •' ris()ner moved the court for a new trial. Motion overruka. ISenteiioe pronounced and the prisoner appealed. S/if'j>p ct' Bailey, for the prisoner, Ilui'ijroi'c, Attorney General, for the state. Pkausox, C. J. That the prisoner, upon the facts set out in the statement of the case, r^onjinitted an assault, is not an opp'i |Ui: ■- tion. State v. Davis, 1 Ired., 125; State v. Raioles, C- N. ', '., 334; State v. Vamioy, id., 532. This it would seem was the only point relied on by the coun- sel of the prisoner in the court below. We are led to tlie iiifcr- en3e that the points as to there being no evidence of tlic intent to commit a rai)e were not taken in the court below, by tlic fact that in statiiiix the case his honor assumes that the intent charired was fully proved and given upon the trial, and contents himself with setting out "there was other testimony bearing on the in- tent Avith which he ])ursued the ])rosecutrix, which it is ii.it necessary to set forth in detail." Clearly had the point Ihhmi made, that there was no emdenre lit to be left to the jury as to the intent charged in the indictment, liis honor would have seen that it was necoss irv to set forth in detail the other testi- mony, "bearing on the intent with which he pursued the pie- cutrix." llowtjver this may be, giving the ]»risoiier ilie beii-dit, of Jie rule, " what does not appear d(tes not exist," and relieving him from the rule, "the appellant must show error and intend- ments are to be taken against him," we will consider the case as presenting the (juestion: Do the facts and circumstances set out amount to any evidence fit to be left to the jury as to the intent charged? (h* was the matter of intent left so much in the diirk as to make it the i-(i>e- i]\c Iten-etlt 1(1 relit'vin^j^ and intentl- the case as nces Ht't out I the intent in the dark ;d the jury charn'cd i M"e was evi- 1. For my ;)ecn on the I see a chicken cock drop his wings and take after a hen; my experience and observation assure me that his purpose is sexual intercourse; no other evidence is needed. AVhether the cock supposes that the hen is running by female instinct to increase the estimate of her favor and excite passion, or whether the cock intends to carry his purpose by force and against her will, is a question about which there may be some doubt; as for instance if she is a setting hen and " makes fight," not merely amorous resistance. There may be evidence from experience and observation of the nature of the animals, and of male and female instincts, fit to be left to the jury upon all of the circumstances and surroundings of the case, Was the pursuit made with the expectation that he would be gratified voluatarily, or was it made with the intent to have his w'il against her will and by force? Upon this c:^;e of the cock and the hen, can any one seriously insist tliat a jury has no right to call to their assistance tlieir own experience and ob- servation of the nature of animals and of male and female vi' stinds. Again: I sec a dog in hot pursuit of a rabbit; my experience and observation assure me that the intent of the dog is to kill the rabbit; no doubt about it, and yet according to the argument of the i)ri.soner's counsel, there is no evidence of the intent. In our case, when the woman leaves the railroad and starts for her home, and is unaccompanied, to pass through woodland for one-fourth of a mile, a negro man calls her to sto]); he is at the distance of seventy-five yards; she with female instinct, from the tone of his voice, looks and sees his purpose, and runs as fast as she can through the woodland ar/d makes the head of the lane in sight of the house before he is able to catch her; he pursues to the end of the lane, and then flees and attempts to escape in the woods. It is said in the ingenious argument of the counsel of the prisoner, his intent may have been to kill the woman, or to rob lier of her shawl or of her money, and if the jury cannot decide for which of these intents he pursued her, they ought to find a verdict for the defendant. The fallacy of this argument is, I conceive, in this: it excludes all the knowledge which ve ac- <|uire from experience and observation as to the nature of man. This is the corner stone on which the institution of trial by jury 640 AMERICAN CRIMINAL REPORTS. r I ' V . Ill ?l' rests. To say tliat a jury are not at liberty to refer to their ex- perieuce and observation, when a negro man, under the circum- stances of this case, pursues a wliite woman, starting at, say sev- enty-five yards and gaining on her, and being near when she gets in sight of the house, when he stops and flees into the woods, is, as it seems to me, to take from a trial by jury all of its recom- mendations. Our case particularly called for the observation and experience of the jurors as practical men. The prisoner had some intent when ho pursued the woman. There is no evidence tending to show that his intent was to kill her or to rob her, so that the in- tent must have been to have sexual intercourse, and the jury considering that he was a negro, and considering the hasty flight of the woman, and the prisoner stopping and running into the woods when he got in sight of the house, and the instinct of na- ture as between male and female, and the repugnance of a white woman to the embraces of a negro, had some evidence to liud that the intent was to commit a rape. KoDMAN, J. {dissent I mj). I cannot concur in the oi)inion of the majority of the court, and will state the reasons for my dis- sent with as much brevity as is consistent with clearness. Upon the authority of State v. Iiuwles, I admit there was evi- dence on which the jury might convict a prisoner of a simj)le as- sault. But in my opinion the record sets forth no evidence lit to go to the jury, or upon which they could reasonably find the ju'is- oner guilty with the intent charged. The intent was an Cv^sen- tial ingredient of the ofi'ense charged, and there was no evidence of it. In the opinion of the court, as delivered by the chief justice, tlie argumoTit is, that becaxise from certain actions of certiiin brute animals, a certain intent would be inferred, :>. like intent must be inferred against the jjrisoner from liivo acts. It seems to me that the illustrations are not in point, even if that method of reasoning be allowable at all. Ths' chicken cock in the case supposed has no intent of violence. He expects ac- quiescence, and knows he could not succeed without it, and be- sides, he is dealing with his lawful wife. But ihe method of reasoning is misleading sMid objectionable n^ STATE V. NEELY. Cll er to their ex- r the circum- \g at, say sev- when she gets the woods, is, of its recoiu- ud experience d some intent ice tending; to 60 that the in- and the jury he hasty fliglit uiing into the instinct of na- nce of a wliite idence to lind the opinion of ns for my dis- harness, there was cvi- of a simple as- dcnce lit to co find the pris- was an essen- as no evidence ! chief justice, )ns of certain , n. like intent Is. point, even if '.' cliicken cock He expects ac- jut it, and be- I ohjectionuble on principle. It assumes that the ])risoner is a brute, or so like a brute tliat it is safe to reason from tlie one to the other; that he is governed by brutish, and in his case, \icious passions, un- restrained by reason or a moral sense. This assumption is un- reasonable and unjust. The prisoner is a man, and until con- viction at least, he must be presumed to have the passions of a man, and also the reason and •iu)ral sense of a man, to act as a restraint in their unlawful gratiiication. Otherwise he would be 710)1 eomj>()s mentis, and not amennl>le to law. He is entitled to be tried as a man, and to have his acts and intents encpiired into and decided upon, by the princi])les whicjh govern hunum conduct, and not brutish conduct. Assume as the opinion of the court does, that the incpiiry as to his intent is to be conducted upon an analogy from the intents of brutes, you treat him worse than a l)rute, because what would not be vicious or criminal in a brute is vicious and criminal in him, beiniraman. When you assume him to be a brute, you assume him to be one of vicious propensities. If that be true, what need of court and jury^ The prisoner is not only feno nutuiue but ('(q»d liqnmDii whom any one may destroy without legal ceremony. The evidence of the prisoner's intent is circumstantial; the circumstances being the jjursuit and its abandonment when he got in sight of White's house. It is the admitted rule in such cases that if there be any reasonable hypothesis upon which the circumstances are consistent with the prisoner's innocence, the judge should diirct an ac([uittal, for in such cases there is no ]i()sitive ])roiif of guilt. The particular criminal intent charged mu^t l)e )>roven. It will not do to prove that the prisoner had tlia* intent or some other, althoui'h the other nuiv have been criminal; and especially if the other, altliough immoral, M'as not criminal. In i:,.r r. Loij,!, 7 ( \ i^: 1'., IJls ^;!2 K. C. L. U. 5-Jo), it was held by Paitkusox, ,J., that in order to convict of assault with intent t(» commit a rape, the jury must be satistied, not oidy that the ])risoner intended to gratify his passions on the ])ro6ecutrix, but that he intended t(» do so at all events and notwithstanding any resistance on her part, lloscoe ('r. Ev.. Sll. It is not proof of guilt, merely, that the facts are consistent with guilt; they mustl>e inconsistent with innocence. It is neither charity, nor common sense, nor law, to infer the worst intent which the Vol. I.~4l 042 AMERICAN CRIMINAL RKPORTS. ~M I, „j-. facts will admit of. The reverse is the rule of jn.stice and law. If the facts will reasonably adnul the inference of an intent, which thoui^h immoral is not criminal, we are bound to infer that intent. In the ])re»cnt case, may not the intent of the prisoner Imve been merely to solicit the woman, and to desist, if she resibtod, his solicitations'^ Or may it not be that he had not anticiputod resistance, and would desist in case it occurred? Either liv- pothcsis will do, iuid either is consistent with every fact in ev- idence; with the j)ursuit, and with its abandonment, when tho prisoner at;j)reh'j!>ded discovery. There is absolutely no evidence that the jirisoni'r had formed the intent char<^ed, viz.: to know the woman in s]);te of resistance and at all hazards. "VV^e are told in the Sacred Jlcxdi that " whoso looketh on a a woman to Inst after her hath committed adultery in his heart;" aihilUrij, not rcj)''. In the minds of men there is a wide s|m('e between the immoral intent to seduce a woman, and the crimi- nal intent to ravish her. It is at this point that the inference drawn from the assumed indentity of civili/.ed men, with brutes, is most misU'adin<^ and unfair. A man may perhaps be easily led by his ])as>i(iiis to form the immoral intent t<» solicit a wonuxn, and to attemi)t to execute it. Hut, as a reasoning beiui,', he will ]>ause before he forms the intent, and attem)>ts to exe- cute it, to commit so hideous and penal a crime as rape; one so certain of detection and ])unishment. The moral seiif-e which every man has, in a greater or less degree, and the terrors of the law, ome in to hold him back from the determination to eoni- mit the crime, and to make him take a period for deliberatiun, which, in tin; absence of evidence to the co?itrary, it must 1»l' ]>resumed, lit; availes, in the l>rute, there are no such restraints, as the gratitication of his |ias-.ions is neither a sin Jior crime. Surely the same- ruK's of evidence; can- not »,p])ly to beings so ditVerent and acting under tlitl'erent nmr- al and legal resjHinsibilities. The dillerence in color between the prosecutrix and the ])ris- oner, although it wouhl aggravate the guilt upon tlie prisoner upon conviction, cannot justly atlect the rule^ of evidence, liy which his guilt is iiKpiired into. These musl be the same fur all classes and c<)nditions of men. It seems to me that the decision of the court is a departure GREER V. STATE. 643 irtticc and liiw. of an iiitont, uund to infer prisoner liavo C s'iie resistt'd, lot anticipated ? Either liy- ry fact in ev- ent, wlien tlio i\y no evidence \'vA.: to know 8. looketli on a ■ inliislieart;" is a wide K]»acc uid the criini- tlie iid'c'iTiico II, with hriitos, haps 1)0 easily it to solicit a sasonini^ ''*^'iii,i,', teni))ts to exe- s rape; one so d seui-e which ! te -rors of tlu; lation to coiii- r delihenitiuM, ry, it must he e hnite, there lis passions is t'\ ideiicc cjiii. ditl'ereiit innr- and the pris- I the pri-oner r evidence, hy the same fur s a departure from what I liad supposed to he a firndy estahlishod rule of evi- dence for the ]>roteetiou of innocence. ]?YMUM, J., concurs in tlie dissenting opinion of Justice Rod- man. Pek Cukiam: There is no error. GuKKii vs. Statk. (oO 1)1(1., 207.) Assault wiTn Intext to Ravish: VlvmUng — Bape — StuUite construed — Eiiflence. Oil iin indictment for an ansniilt with iiitont to ravish, which did not stiito that tho iut was dono " unlawfully " or " IV'loniously,'' it wiw held, that the in- dictment was Ijad as to the intent to ravish, but pood us an indictment for nn iissaidt and liatteiy. ainl tliat a motion to quash was, therefore, properly ovcn.detl. By titntuto. nxiw is divided i)it>errule. and lie iin])risone un act could not l>e felonious without heiui^ unlawful. ]V(!ii- zorjiffhi. V. The Stnte, 7 IMackf., ls«?; Sl<>eiit of the child; for the law ]iresumes that a child under thi; a^e of twelve years is not ca]>ahle of consenting to intercourse, so that a man having connection with her is guilty of raj)e, whether it wan with her consent or n(»t." The jury must lane understood from this charge tint if the defendant ]>erpetrated the assault and hatt(M'y upon the child. >lie being umlcr the age of twelve years, with intent to have carnal connection with her, he might be convicted of the (/tleiise chargeil. without regard to the (piestioti whether he intended to luivc siicli connection with or without her consent. GRKKIl r. STATE. 045 :lic r.ipf. tlic I ontors liitn ivalfiit \\t •fill. w.;,,. 'tiiient is nut liittery. I'.iit i e tint if the thi' child. >lie • liavi' carnal L'lisc charp'd. to have such The charge may have heen correct as an abstract proposition, hut it was clearly wroiif,' as applied to the char^^c contained in the indictment. The indictment charj^es that Mary E. Claycs, the person cliai-f^ed to have heen assaulted, was a woman, and that tlie defeiuhint intended carnally to know her forcihly and a;,'ainst her \\ ill. The statute detininjr and prt)vidinijj punish- ment for rape, ]>rovides that ''every person wlio shall unlawfully liave carnal knowledfje of a woman a<:;ainst her will, or of a woman child under twelve years of aji;e, shall be deenaed fj;uilty of rape," etc. 2 (», «fc H., 440, sec. 14. This statute, it will be seen, enumerates tw«> classes of facts, each of which constitues a rape. First, it is a ra]>e to unlawfully have carnal lvnowledij;e of a woman ajjjaiiist her will. AVe take it that all females of the human species over twelve years of age are to be deemed women within the meaning of the ilrst clause of the statute. Second, it is a rape to unlawfully have carnal knowledge of a woman child under twelve years of age. In the second case, it is immaterial whether the child consent or not, for if she consent, the act con- ?titutes a rape nevertheless. Ibit the prosecutor cannot charge a rajie of the one class and sustain the charge by proof of a rapo oi" the other class. Nor can he charge an assault and battery with intent to commit a rajie of the one class, and sustain the cliarge by evidence of an intent to commit a rape of the other class. The variance between the allegations and the proof is fatal. Tliis is establish .!(! by the following, among other authorities that might be cited: 1 Wliart. Crim. Law, sec. fill; 1 Bish. Crim. Proc., sees. 485, 4Sfi; Turhij v. The State, 3 Humph., 323; ][„ohur V. The State, 4 Ohio, 34S; The State v. Nolle, 15 Isle, 47(5; State v. Jtiehmm, 30 id., 20; Dlehv. State, 30 ^Miss., 031. There need be no trouble in cases of this kind, as, if there is any doubt about the age of the ))erson assaulted or ravished, the oiVeiise can be charged both ways in diilerent counts. A motic for a new trial was \i\\ »i)erly niade, and should have been sustained. There are some other ([uestions made in the cause, but as we sup]»ose they will not be likely to again arise upon the trial of the defendant upon this indictment, we pass them over. The judgment below is reversed, and the cause remanded for a n(nv trial. The clerk will give the proper notice for the return of the prisoner. '}i: Si' il 646 *MEIUCAN CUIMIXAL UEl'UUTS. Static vs. Nilku. (47 Vt., 82.) Rai'k: thUUncc — Coiiqihiint hi/ prosrciitrix. On the trial of II man for mpo on his Ht^'p-daiiylitcr, a ^irl of twelve yciUH of aye, and winall for her a^e, it was hilil, that a eliarp- that " if the(,'U'l in tlio first insfance consented to tiie sexual interioiu-se with the respondent, but if after the coninu'no(;ment of the sexuiJ intercoiu'se, win withdrew her consent iuid the rosi)ondi!nt foreilily continued it with laiowledp' of her dissent, this would be rape," \va.s proper, and not eiror under the eircunistunces of tiio cose. A complaint by the prosecutrix, made two months after the eonnnissiou of a rape, is admissil'le apiinst tin.' resjiMiident on a trial for rape. On a trial for rape the prosecuti(m nu\y give in evidence the fact that the jiro^. ecutrix madt; a complaint charging that the oflense wiis committed, liut it is eiTor to admit the particulars of the charge, or Uie name of the jiei'son charged by her. m Indictmkxt for rape on Lillian Gray, a female above tin; ai,'o of consent, on the 20th day of January, 1874. Plea, not ^'uilty. Trial by jury and verdict of guilty. June term, 187-4. Itoss, J., presiding. The evidence on the part of the state teiuled to show, that the said Lillian, on or about the day in question, left the residence of the re>])ondent in liurke, in company with him,aiul went with liini a distance of about two miles to AV^atson's sugar ho\ise, and that Boon after leaving the respondent's house, he informed her of his intention to go to said sugar house, and there luive sexual inter- course with her; that no violence or threats were there emitloyc'oii whom the nled by IIol- a prosecution implaint soo)i •ule has been ut it has never made the test upended. The the crime and c jury to con- that should he lot well taken. Id to testify to Clarl'e\'< Case, : could not be jtent to jirove to have been idual, without In licgina v. le witness had char<^ed a par- was ])ropo8ed 'osecutrix, and Iso Jicfjlna V. eta?., id., ill. cception taken h reference to icable to this no rule upon the subject, of universal application; and in the adoption of a rule for this case, the court might well take into consideration the age and physical strength of the girl upon whom the rape was alleged to have been committed, and the relation she sus- tained to the resi)ondent, and all the other circumstances dis- closed by the evidence. Judgment reversed, and cause remanded. NoTK. — In Sfephciis r. Sfntfi, 11 Ga., 225, the court nso this language: "Tlie law, to be sure, has said, by implication at least, that when consent is given, after Ion years of age, a rape cannot exist. But this, after all, is a mere presumption, and may be rebutted. Has it been overcome by sufficient evidence in the pres- ent case? " The parents testify that their daughter is sickly and weakly, and poorly gi-own. H' mother sweai-s that she is nothing but a child; that she has never had her monthly coui-ses; and that there wiis no appearance of woomanhood about her. Is this weak minded creature, as she is shown to be, and on which account partly she was not brought as a witness on the stand, capable of consent to such a deed; could she have sought her owni gratification? * * * Believing, as I do from the evidence, that the passions of this girl had not anived at that maturity to authorize a supposition of sexual intercourse, irifh her comment, and seeing that her person has been most shamefully outraged, I would, were I in the juiy box, seize upon the slightest proof of resistance ^notwithstanding she may have been enticed to give her consent in the fii-st instance — even the usual struggles of a modest maiden, joung and inexperienced in such mysteries, to find, in just such a case, that the act was against Jier will, and that the presumption of law was so strong us to amount to proof of force." So in ]Vrif/ht v. State, 4 Humph. (Tenn.), 194, where the prosecutrix was a child just over th(} age of consent, a charge that " It is no difference if the person abused consented through fear, or that she was a common prostitute, or that she asscnt*.'d after the fact, or that she was taken fii-st with her own consent, if she were aftenvards forced against her will," was held to be con-ect. Where the prosecutrix was fifteen years of age, and the defendant a man of thirty-five, the court said: "The age of the prosecutrix is always important to be considered in such cases, It is held that if under twelve yeai-s of age (by our statute, ten, § 4204) she is incapable of consent. If she is very young, though over this age, and ol mind not enliglitened on the question, this consideration will leiul the jurj- to demand a less clear oppositioi. than if she were older and more intelligent." Stale r. Cross, 12 Iowa, 66. So in Peojile r. Lijwh, 2'J Mich., 274, whei-e the prosecutrix was an undevel- oped girl, not quite fourteen years of age, the following charge was held correct : " Now, it has been said that no conviction should be hatl for rai^e where the cir- cumstance of the resistance was equivocal, and this applies jvith a very large de- gree of force to the case of an adult female, one who is supposed to be old enough to comprehend the nature of such an act, and the purpose of it. * * * What was the age of this child? Had she an-ived at such an age that she was capable of compreheniling the nature of the act? Did she comprehend it when she dis- covered him, if that wiis the fact, upon her body, liis naked person in contact pi ^■■J- 660 AMERICAN CRIMINAL REPORTS. with hers, and found thiit she was being l\\ai? Did she comprehend the nature of the act, if she had not arrived at the age of puberty? Was she of that tender age when she might not have any more knowledge or idea of it than some other child under ten years of age. * • * She might not be able, from any vohtion of her o\vn, to consent or dissent any, more than a child under tt>n years of age, because she might know nothing about whether the act was uyurious, or would be injurious, or of its possible or probable consequences." SiiiKwiNV^. People. (69111., 55.) Rape: Evidence — Practice — Improper remarks of court in presence of jury — Continuance. Respondent Ijeing arraigned on the 14th, liis trial was set for the 18th. On the 14th he had his subpoenas issued, but a material witness in his behalf could not be served, being temporarily absent. On these facts being shown to the court by affidavit, it was held that a motion for a contbiuance should have been granted, and to refuse it was error. On a trial for rape, where the prosecutrix testified that at the time of the act she was unconscious, and did not know whether defendant liad ravished her, and a physician, who exammed her had been allowed to testify that some body had liad sexual intercourse with her, it wiis held that the ni^poiident had a right to prove previous particular acta of sexual intorcourse betwe-n the prosecutrix and othei*s. An improper remark, prejudicL'.i to tlie respondent, made by the court in ruling out testimony, is en'or. McAllistku, J. An imlictment, charging j)laintiff* in error "with tlie crime of rape upon one BertliaKanunski, was presented in the criiuinal court of Cook county, July 12, 1S73, wliereupon a capias issued, upon which the accused was arrested and com- mitted to triah On Monday, the 1-itli of the same month, the accused was ar- raigned, and the i)lea of not guilty entered. The court then or- dered the case to he set for trial on the next succeeding Friday, being the ISth of the same month. On the day of the arraignment, accused proceeded to j^reparo for his trial, by causing a suh])ama to be issued for his witnesses, among whom was one Mary Kehoe. This subpoMia was then phiced in the hands of an agent employed to serve it, who used all the diligence practicable, within the time allowed, but was SHIRWIN V. PEOPLE. 651 unable to serve it upon said Mary Kehoe, by reason of her ab- sence beyond tlie reach of the subpoena. When the case was called for truil, on the day fixed by the court, the accused pre- pared and presented to the court his affidavit, upon which he asked that the trial of the cause might be put oft' until the August term, a jjeriod of only about three weeks, in order to enable him to procure the testimony of said Mary Ivehoe, who was shown to be only temporarily absent from the city of Chicago, and was expected to return in time for the next term of cou^t. The facts set forth, which the accused expected to prove by the absent witness were, that the complaining witness. Bertha Kaminski, had, since the l;ime at which she claimed the offense was committed, told Mary Kehoe that the accused was not guil- ty of a rape U]>on her, but that she (Bertha) wanted to make some money out of him ; and upon said Mary Kehoe answering that the accused had no money, the said Bertha replied that he had rich relations, and was connected with the city government, and that accused or his friends would pay her well to drop the prosecution. The court overruled the motion for continuance, and ordered the trial to proceed, which resulted in a verdict of guilty, and fixed the punishment at five years in the penitentiary. The court overruled a motion for a new trial, and gave judg- ment in accordance with the verdict. These matters, together with the evidence and rulings of the court upon the trial, are presented in a bill of exceptions, and the case brought here by writ of error. By our practice, error may be assigned upon overruling a mo- tion for continuance as well as for a new trial. If the affidavit for a continuance presented a proper case, it was error to overrule the application. The essential requisites for such affidavit are these: First. The name and residence of the witness; that he is really material, and shown to the court, by the affidavit, to be so. Second. That the party who applies has been guilty of no neglect, or, in other words, shows the exercise of proper diligence. Third. That the witness can be had at the time to which it is sought to have the trial of the cause deferred. If the facts set forth in the affidavit of the accused, which he expected to prove by the absent witness, M'ere really material, ik 652 AMERICAN CRIMINAL REPORTS. and shown to the court to be so, then this affidavit was sufficient, because in all other respects it is so clearly and manifestly with- in the rules as to admit of no criticism. The question, and the only question arising upon this affidavit is, the materiality of the facts expected to be proven "by the absent witness, and that scarcely admits of argument. The affidavit shows that accused knew of no other witness by whom these facts could bo proven. The indictment was for rape ujion Bertha Kaminski, and the af- fidavit shows what is but an ordinary presumption, from the in- dictment itself, that she was the complaining witness. It was apparent therefore, and to be expected, that she woidd be the only witness in support of the charge; and as the law closes the lips of the defendant, his only hope of defense, if innocent, con- sisted in controverting the evidence of the fact of the force, ad- duced by her, by means of cross-examination, impairing her credibility by disproving circumstances stated by her, or show- ing declarations made by her out of court inconsistent with her evidence upon the witness stand. " It is to be remomborod," says Greenleaf, " as has been justly observed by Lord Ilale, that it is an accusation easily made, hard to be proved, and still hard- er to be defended by one ever so innocent." 3 Greenl. Ev., sec. 212. "When the nature of the charge is considered, and the various motives which may, and doubtless • many instances have, actu- ated women to make unfounded cha "ges of this character, as, for revenge, to extort money, as an excuse on their part for a sin of a less odious character, is it not obvious that evidence introduced, upon a proper foundation being laid, that the prosecutrix had declared that the accused was not guilty, had admitted that the prosecution was carried on for the sole purpose of extorting money, would be material? The proposition does not admit of controversy, and it was manifest error to overrule the motion of plaintiff in error for a continuance. The second error assigned is, that tlie court excluded proper evidence offered in behalf of the defense, viz.: Evidence tend- ing to show that the prosecutrix, prior to the time in question, had had cjirnal intercourse with other men. It is the general rule that the character of the prosecutrix for chastity may be im- peached, but this must be done by general evidence of her repu- tation in that respect, and not by evidence of particular instances 'I!::;: SHERWIN t', PEOPLE. 653 sec. of unchastity. Rex v. Clarke, 2 Stark., 241 ; Raoc v. Barker, 3 C. & P., 589; The People v. Ahhott, 19 AVend., 192. The latter case holds that the prosecittrix may be shown to be in fact a common prostitute; that previous voluntary connection be- tween her and the prisoner may be shown, and tliat evidence may be given of particular acts anc! associations indicating, on her part, a want of chastity. The admissibility of all this class of evidence is placed upon the ground that an unchaste woman would be more likely to consent to the act than a virtuous one, and therefore her previous connection with the accused, or her general reputation for want of chastity, are proper ingredients in determining the question whether the particular act in con- troversy was accomplished solely by force, or with her virtual consent. In tl;'': case, however, the question arises in a wholly differ- ent aspect. The prosecutrix does not, nor does any other wit- ness, testify to the commission of a rape or any carnal inter- course at the time in question. She says she became insensible, and does not know whether the accused consummated the act or not; and to supplement this lack of direct evi'€€, by a mediiim-B\zed man, who neither threatened her with violence nor did anything to disable her, and who, from her own account, had the use of but one arm, the other being em- ployed in holding her bonnet over her face whilst the act was committed; and that all this had been accomplished with no noise to alarm the families which were so near; with not the slightest indication, from the appearance of the ground, that there had been a scuffle; and with no scratch or bruise on the person of the female, to show that her chastity had not been vio- lated without a struggle! Such testimony we think exceedingly weak, to say the least of it, to show that a rape had been com- mitted at all, especially when it appears in the record that the accused, who lived at her father's house, had previously, in his kitchen, attempted to take improper liberties with Miss Spencer, which she does not appear to have disclosed or resented. But conceding the rape to be established, the evidence to con- nect the accused with the act is yet more doubtful and unsatis- factory. Although the accused had resided at her father's house for a year or two previous to the occurrence, and was, of course, well known to the witness — voice, features, gestures and per- son, — yet she does not swear to his identity. He spoke to her with his face very near to hers, yet she does not say that she recognized his voice. She says she only caught a " glimpse of the lower part of his face," and only saw his back " at a distance of about fifty or a hundred yards, running away." What she Vol. I.- 42 058 AMERICAN CRIMINAL REPORTS. i was doing from the time he left her person until ho reached tlio distance of fifty or one hundred yards, does not appear; yet, when she did see him, she seems to have \)een perfectly cool and collected, for she can tell that he wore a dirty shirt and n black felt hat. She says that, from the glimpse she had of his face, and the sight she had of his back as he ran away, she bdieval it was the jprisoner. And this was all the evidence of identity, ex- cept the evidence of William Spencer, who lived about two or three hundred yards from the home of the prosecutrix. IIo proves that he saw, on what day and at what hour does not ap- pear, a man whom he took to be Wilson Boxley, walking very rapidly along the road leading from Bannister Spencer's, and now and then looking backwards. He called to him and asked, "What's your hurry?" but received no answer. lie was one luindred yards off, and witness was not sure it was Boxley. "Tne man he saw wore a white chip hat^'* not a hlaek felt hnt, as proved by Miss Spencer to have been worn by the person who assailed her. It was further proved that the accused lived about two miles from the home of Miss Spencer, and that he remained at his work as usual for three or four days after the occurrence at the spring, when he was charged with this ottense by the brothers of Miss Spencer, and beaten by them. He then went to tlie court house and caused a warrant to be issued against them; audit was not until after these proceedings that the present prosecu- tion was commenced. We think the evidence wholly insuffi- cient to identify the prisoner as the guilty party. Were this not 60, the evidence, to say the most of it, leaves the question of identity extremely doubtful, and, under the circumstances, the verdict of the jury should have been set aside, and a new trial awarded, to allow the accused the privilege of introducing the testimony set forth in his own aflSdavit and that of Dr. Melvin, of which he was evidently deprived by surprise. Dr. Melvin's testimony, as set forth in his affidavit, would still further have weakened the testimony on the question of identity. He was the committing magistrate, and the testimony of Miss Spencer, as detailed by him, is materially variant from her testi- mony in court; and the facts set forth in the prisoner's affidavit satisfactorily explain his failure to have Dr. Melvin before the court. Fnder all the circumstances, this court is of opinion that BOXLEY V. COMMONWEALTH. 659 saclied tlio pear; yet, y cool ftiul id fi black I Ilia face, W'lievi'd it entity, ex- nt two or trix. Ho es not ap- viiig very cer's, and md asked, 3 was one 8 IJoxley. /dt /iut, srson who wo miles led at his !ice at the rothers of the court n; and it prosecu- y insnffi- e this not icstion of mces, the new trial ucing the . Melvin, ould still identity, ' of Miss her testi- aflidavit 3fore the lion that the coiu't lielow erred in refusing to set aside the verdict and to award the prisoner a new trial. As the cause must be remanded to the circuit court, it becomes necessary to dispose of the objection to the yirisdiction of that court, so earnestly and ably argued at the bar. The objection was, that as the law stood on the 28tli July, 1873, when the case was transferred frou) the county to the cir- cuit court, the prisoner had a right to be tried in the county court in which his case was pending, or, at Iub election, to be sent for trial to the circuit court; that he did not elect to be tried in the latter court, and therefore bis case was never legally pend- ing in that court. It is certainly true that on the 25th of July, 1873, the prisoner bad a right to be tried in the county court, where his case was pending; but it is equally true that the county court had then undoubted authority, on the election of the prisoner or by his consent, to transfer the case to the circuit court. It is further- more true that on the 1st day of August thereafter, the jurisdic- tion of the county court to try the case would cease; and by the mandate of the law it would, without the prisoner's consent, be transferred io the circuit court. On the prisoner's motion, the case had already been continued to the next term of the court, and his right to be tried in the county court was, in efi'ect, for- ever gone, for in three days the new law, depriving the county courts of jurisdiction in the case, would go into efi'ect. This was all well known to the court and to the counsel on both sides, and it is reasonable to conclude that, acting on that knowledge, the transfer to the circuit court was made with the consent and ap- probation of the accused. "We think so, because, under the cir- cumstances then existing, it was manifestly to his interest to give that consent, and because he not only made no objection whatso- ever to the transfer, but immediately thereafter applied to be al- lowed to give bail for his appearance in the circuit court, which was allowed him and was given; and because he appeared in that court in discharge of his recognizance, and submitted to his trial without indicating the slightest objection to the jurisdiction of the court. He was, in fact, exactly where he would have been had no transfer been made, with the advantage of a full oppor- tunity to meet the charge in the court in which it was absolutely i ■ 1 [■ .^J^** ; 660 AMERICAN CRIMINAL REPORTS. necessary, under the law, which was just about to go into effect, that he should be tried. Under such circumstances, we are fully justified in reaflun«» the conclusion that the transfer was in fact made with the pris- oner's consent, and the circuit court therefore had jurisdiction. We arrive at this conclusion the more readily because it is now evidently to the advantage of the prisoner. lie must be tried in the circuit court, and is now in confinement, and it might seri- ously prolong that confinement were he compelled to go throuHi the inconvenience and useless form of sending the case to tlio county court, to be by that court immediately sent kick where it now is. The judgment of the circuit court must be reversed, the verdict set aside, and a new trial awarded. 'Vll Note. — In People r. Dohring, 59 N. Y., 374, which was a prosocution for rape, the defendant's counsel asked the couit to charj^e the jniy, " that thiy must be satisfied from the evidence, before finding the prisoner guilty, that tlie prosecutrix resisted him to the exty actuixl force or of inability from loss of strength lo, or to resist, or from the numbi'r of persons attacking, resistance must be dangerous or absolutely useless, or there nmst be duress or fear of death." It was held that the refusal to charge as reipiested was error. Tills case contains a full citation of authorities sustauiing the decision on this head. People vs. Clark. (.^3 Mich., 112.) Seduction : Ehclion- — Practice — Evklence. On the trial of an information for seduction, containing three counts, covering three distinct transactions, the prosiecution wll not be allowed to go to the juiy on more than one act, and having introduced eridenco tending to prove one of the acts charged, this will be treated as an election, and thereafter no evi- dence ad to the other acts charged is admissible. TIC PEOPLE V. CLARK. 661 ision on this On a trial for seduction, evidence of illicit intercourse between the parties, sub- sequent to the alleg-nd seduction, is in-elevant and inadmissible. To constitute the crime of seduction, the woman must, relying upon some suf- ficient promise or inducement, be drawn asiiTe from the path of vurtue she virus honestly jiui-suing at the time the ottense chargetl was committed. Where the evidence showed that the parties had ilUcit intercouree whenever opportunity otTered, a promise of maniage at iiny such acts would not make tlic act seduction. On the triid of an infonnation for seduction, the chastity of the female at the time of the alleged seduction is involved, and the defendant has a right to ask hor on cross-examination, whether, prior to the alleged seduction, she had had illicit intercoui-se with another. On the trial of an information for seduction, it is competent for the defense to give evidence to show a plan between the female, her father and mother, to inveigle the defendant into a miin-iage, and, failing, to prosecute liim. It is proper to prove by medical experts, that acts of sexual intercourse, which had been testifH^d to, wore, owing to the situation of the paiiies, i. e., in a buggy, and tliei)ain whidi would have resulted, highly improbable, if not impossible. Exceptions fro;n Calhoun Circuit. Anderson J. Smith, Attorney General, for the people. John C. Fitzgerald and C. I. Walker, for respondent. IMaustox, J. The defendant' was convicted for the seduction of Alice J. ^[orcy. There were three counts in the information: the first charged him with committing the oftense on the 28th day of July, 1873, in the county of Calhoun; the second, with the commission of a like oft'onse, on the same day, in the township of Peniield, in said county, and the third, with a like offense, un- der and l>y means of a promise of marriage, on the same day, in the county of Callioun. Upon the trial, the prosecution introduced the complaining witness, who gave evidence tending to prove an act of seduction, in the town of Penfield, July 28, 1873. The prosecution then offered to prove a distinct and subsequent act of seduction, stat- ing, for the first time, that they relied u])on this instance, and not the oik; already proven, for conviction. This was objected to, hut admitted, the court remarking that the prosecution would liave to elect one particular act or transaction to put before the jury. The prosecution then offered to prove a third distinct act, which occurred subsequent to the first act, proven to have taken place in the town of Penfield, but prior to the second act already proven. This was also objected to, but admitted. After the close of the argument, but before the court charged i \ 662 AMERICAN CRIMINAL REPORTS. 5 v5< the jury, the prosecuting attorney stated to the court, in the hear- ing of the jury, tliat he relied upon the last act of intercourse which was the second proved, and that if the court desired him to elect, ho would elect that act; no election, however, was made* and the court charged the jury that it was sufficient if the prose- cution had proved the offense committed at any time within a year prior to the 2'4th of June, 1874, that being the time when the prosecution was commenced; and refused to charge, that the prosecution having first put in evidence tending to show that the defendant committed the oft'ense in Penfield, on the 28th of Julv, they were not at liberty to prove any subsequent offense commit- ted elsewhere for any purjwse; and that the jury conld not con- sider the evidence of such subsequent offense for any purpose whatever. It was decided in Peojjle v. Jenness, 5 Mich., 327, that the prosecution, before the evidence was introduced, could select any one act of criminal intercourse, such as was charged in the in- formation, which occurred within the jurisdiction of the court, and within the statute of limitations, but when evidence had been introduced tending directly to the proof of one act, for the purpose of procuring a conviction upon it, the prosecutor had thereby made his election, and could not be allowed to prove any other act of the kind as a substantive oft'ense upon which a conviction might be had in the cause. Upon this question we consider the ruling in that case decisive. The act alleged to have been committed in the buggy, in the town of Penfield, being the first to which evidence was intro- duced, was the only offense upon which the defendant could be tried; and if proofs of subsequent acts were admissible at all, they could not be admitted as distinct offenses to go to the jury, and upon which the defendant might be convicted. It was not neces- sary for the ])rosecution to e.\p» essly elect for which act they would try the defendant in order to bind them. The fact of their introducing evidence tending to prove a distinct substantive offense, was a sufficient election. In this case under the charge as given, there was no certainty whatever that the jurors all united upon the same act in finding the defendant guilty. Nor could the prosecution, after having thus introduced evi- dence tending to show an offense committed in the town of Pen- field, ou the 28th of July, show subsequent acts as corroborating **^ ■■ '*il#HMit«' ^^p PEOPLE V. CLARK. 663 testimony, as they could have no such tendency. Proof of pre- vious acts of sexual intercourse would tend to show a much greater probability of the commission of a similar act charged to have occurred subsequent thereto, but the converse oi this propo- sition would not be true, as the proof of a crime committed by parties on a certain day could have no tendency to prove that they had, previous thereto, committed a similar offense. Peo- ple V. Jenness, svpra; Tem^pleton v. The People, 27 Mich., 501; T/ie People v. Schmeitzer, 23 Mich., 304. There is still another serious objection to the prosecution re- lying upon the second or third act proven in this case for a con- viction. It appeared from the testimony of the complaining witness that the first offense was committed, if at all, on the 28ih of July, 1873; that the second and third offenses were com- mitted, if at all, during the month of August following, but at what particular time, she was unable to state. And upon cross- examination she gave testimony tending to prove several distinct acts of intercourse, in all instances connected with a promise of marriage, in the months of July and August, and all subsequent to the 28th of July. Illicit intercourse alone would not constitute the offense charged. In addition to this the complainant, relying upon some sufficient promise or inducement, and without which she would not have yielded, must have been drawn aside from the path of Virtue she was honestly pursuing at the time the offense charged was committed. Now, from her own testimony it would seem that the parties had illicit intercourse as opportu- nity oftered. " Such is the force and ungovernable nature of this passion, and so likely is its indulgence to be continued be- tween the same parties, when once yielded to, that the constitu- tion of the human mind must be entirely changed before any man's judgment can resist the conclusion," that where parties tluis indulge their criminal desires, it shows a willingness upon her part that a person of chaste character would not be guilty of, and that although a promise of marriage may have been made at each time as an inducement, it would be but a mere matter of form, and could not alone safely be relied upon to establish the fact that she would not have yielded, had such a promise not been made. We do not wish to be understood as saying that, even as bo • COi AMERICAN CRIMINAL REPORTS. 1 '' '1 tween the same parties, there conlcl not be a second or even third act of seduction; but where the subsequent alleged acts follow the first so closely, they destroy the presumption of chastity wliich would otherwise prevail, and there should be clear and satisfactory proof that the complainant had in truth and fact re- formed, otlicrwise there could be no seduction. The object of this statute was not to punish illicit cohabitation. Its object was to ])unish tlie seducer, who, by his arts and persuasions, ]»re- vails over the chastity of an unmarried woman, and wlio thus draws her aside from the path of duty and rectitude she was pur- suing. If, however, she had already fallen, and was not at the time pursuing this path, but willingly submitted to his embraces as opportunity oflered, the mere fact of a promise made at the time would not make the act seduction. Nor will illicit intercourse which takes place in consequence of, and in reliance upon a promise made, make the act seduction. If this were so, then the common prostitute, wlio is willing to sell her person to any man, might afterwards make the act se- duction, by proving that she yielded relying upon the promise of compensation made her by the man, and without which she wouid not have submitted to his embraces. Illicit intercourse, in reliance upon a promise made, is not sufficient, therefore, to make the act seduction. The nature of the promise, and the previous character of the woman as to chastity, must be consid- ered. And although the female may have previously left the path of virtue on account of the seductive arts and persuasions of the accused or some other ])erson, yet if she has re])ented of that act and reformed, she may again l>c seduced. \Ve do not say tluit there nriy not have been a rcfornuition in this case; in- deec' there may have been many, but they were unfortunately fleeting. Had a reasonable time elapsed l)etween the difterent acts, a presumption in favor of a reformation might arise, but we think no such presumption could arise in this case, and that the burden of proving such would be ujion the prosecution. In this connection we may discuss another question raised. Upon cross-examination of the complaining witness, she was asked whether previous to this time she had ever liad connection with any other man. This was objected to as irrelevant, and the ob- jection was sustained. It does not clearly appear from the rec- ord what particular time the question referred to, whether to a PEOPLE r. CLARK. 6C5 i :!i time previous to the first allegeJ act of intercourse with the clo- fendant, or previous to the trial. If the latter, the ruling was clearly correct. People v. Brcioer, 27 Mich., 1B4. If the former, then we think the question, under the objection made, was proper. In the examination of this question, and also of the one last discussed, we have derived but little benefit from an exam- ination of the authorities. Seduction was not punishable by in- dictment at common law, and the cases which discuss these ques- tions are all under statutes which differ in some respects from oui's. In most of the states their statute makes the seduction of a woman of " previous chaste character " an indictable ofrense, while there are no such words, nor any of like import, in ours; and the courts have held that the words " previous chaste char- acter" mean that she shall possess actual personal virtue, in distinction to a good reputation, and that a single act of illicit connection may therefore be shown on behalf of the defendant. If, however, we are correct in what we have already said upon the question as to what is necessary to make an act of illicit in- tercourse seduction, then the phastity of the female at the time of the alleged act is in all cases involved, and the ])resnmption of law beine guilty of seducing, by false and fraudulent means, a woman who knows he is married is, we thuik, incontestible. He may gain her confidence in many ways. He may be her guardian, her near kinsman. He may, as is chai'ged in this case, be her teacher and spuitual adviser; she may honestly and chastely honor, confide m and trust liim. She may look to him as the fountain of truth and purity, so that his acts, his words and his opinions shall be to her as those of a God. Under such a state of circumstances, tJie girl is as much a vic- tim as though her confidence were the product of that tender and confiding rela- 668 AMERICAN CRIMINAL REPORTS. tion existing between plijfhted lovers, bound by pledges to be consumumted at the altiu- of marriage. Indeed, as all experience has proven, the influence which a priest may acquire over a devotee is, perhaps, of all others the most complete, and whilst she may by it be led to a purer life and to a holier condition, it is pos- sible that siie may be led by it blinilfold into sins of the deepest die." The st.itute on which the prosecution was based is in these words: "Any per- son, who by per^tiuision and promise of marriage, or Ijy any otiier false or fraudu- lent means, shall seduce a virtuous, unmarried female," etc. All statutes iigiiinst seduction, refer to the seduction of virtuous fenuiles, indeed, tliere could Ije no seduction of an unchaste female. But precisely wliat constitutes a virtuous (or chaste) female has been a subject of diiference. In this case, the trial judge instnicted the jurj' as follows: " It must appear from the testimony, tliat she was, at the date of the alleged seduction, a virtuous, unmarried female. The test is to be applied to her at that date, and not at a subsequent period. The presumption of the law is that she was virtuous, and that presumption re- mains until removed l)y the proof. She must have had personal chastity. If she, at that time, had never had unlawful sexual intercourse \vitl; man ; if no man lian>iuit with cliilil to abort or mis- miry." I't*;. : It ^-m hrlil, tmit tlio Htaluti) only iv|)i)lio(( to thoHo who inti'iul to produce an ulx>rtio». UlaUcry v. I'coph, 2. Evidence. Tho evidoiico in this coho was held iiisufRcioiit to justify a connction. Ibiit. ACCOMrLICK. 1. One who nun'hnAos stolen jyoods from a thief, wth money furnished hy an nfH- cer, witli a view of bringintf the tliief to justice, is not an accomplice. reoph »'. JJairic, , 178 2. Cort'oboi'otlon of accomi>llcc. On a trial for felony, a conviction cnnnot he had on the fe'stimonyof an accom- plice, unless such testimony is corroborated, and tho corrolsjiution must lie as to some tact or circumstance tending to connect the res[s)ndent with tlie Clime. It is not sutficient that the evidence of the aec'omplire is corroli- onited by fact« which tend to show the commission of the crime, luid that tho iiccomplicc was concerned in it. MiddhtuH r. SUttv, l'J4 3. Same, What credit is to be «iven to the testimony of an accomplice, whether coiToh- oniti'd or uncorroljonited is a matter exclusively witlmi the province of tii.! jury. Hamilton i\ I'eopJe (and see note, p. tiUO), Cl^ 4. Wairer of pririle could not bo regarded U8 voluntary, and ore inudiuissilile. ifeicman v. State, 173 2. Same. Where an officer promiw^d respondent, apirlof fourteen, that if she would tell, she sliouhl not lie hurt, ana she thereuix)n confessed her gviilt, it wiw hrld that her confession was inadmissible, a» not huvinj,' been mmle voluntarily Earp V. State, 171 8. Same. Where a confession wliieh is inadmissible, because not voluntarily made, is ad- mitted without olijection, it is nevertheless the duty of the court to exclude the confession from the consideration of the jury by his char(^', if so re- quested. Jbid 4. Same. Where a prose, uiing witness, who testifies to confessions matie in the presence iil)ort or uw' >HL> who inti'iiil ion. Ibid. lied liy an offi. n ucc'oiuiilict'. ITS y of an ivciDni- ution must Ih) ili'ht with till! pHcf in cfiiToli- rime, luul thiit l'J4 hctlior rorrol). )rovince of tli.) must tt'stifj' liy hill) to Ins L'l may also lio Jbid. ITS saul to him, I you aiul you llKUlt "cWllilli,' yoinifjf to 1)1' in ^ith you who is in^fht for you to Freoj it may p) fluenw; oxtittd u iniuhui-ssililc. I7;i she would tt'll, ilt, it was l>rl(l tie voluntariiv Itl ly nmilo, is ad- •urt to cxchule har^^e, if so ro- Ibid n the preaonca w INDEX. era of hiniHoIf and the sheriff, teHtifioH in n preliminary croHS-examinaUon that it iH poHHihle that something wiu wiid about itt^ Itein)^ In'tt^T tor the priu- onerlo make u full dJHcloHure, it waM hvld, tliut the confebaioutf were iuuiUuiH- Hible. I'eopUt v. liamc, 178 5. Same. Before confrsHionB nunle to one in authority can be recoivod in evidence, it nuiht appear attirmatively that they were nuulo voluntarily. Ibid. 6. Evidence obtained from defendant by force. A prisoner, arrested for larceny of Krowinjf com, was compelled by the officer who arrt'sted him to uut lu« foot into a fresh track in the fiehl where the corn wiw ifrowinj?. It was held proper for the officer to t^'stify as to the corresiKjiuft'nce between the nrisoner's foot and the track, and that the evi- dence should not be excluiled, because obtuineil througli fear or force. State V. Graham, 18'J 7. Confessions obtained throuifh fear or hojie arc inadmissible, because the fear or hope may so influence the wrisouer's mind iw to induce him to make false statements. Hut if uidepeniient facts or circumstances are k-arneil through fear, force or hope, evidence of the facts or circumstances is admissible, be- cause the fear or hope oi)eratiny on the prisoner's mind cim have no tendency to distort them. Ibid. 8. Same. On a trial for murder, the prosecution put on the stand a convict who had been confined in prison with the resisindent. The convict testified that respond- ent hwl t4)l(t him that he hiul kiUi'd a nuvn whom his conversation identified as the murdcrrd man, and that retipondent was afraid he would be tried for it when he jjot out. Held, that a charge which rt'feiTed to tliis evidence as t«Midinj,' to show a voluntary confession without inducement waa not eiTO- neous. MeViilloch v. State, 317 9. Silence as an admission. Silence under accusations is not ttlwajT) to Iw considered as an admission of their truth. And so, where the resiMJndent had promised to be on his good be- havior at a family interview to which he hail induced ic friend by means of such promise to accompany him. it was held, that his sileuc at that inter- view under harsh accusations should not be constmed as an admission of their truth. Slatten/ v. Veojile (and sec note, page c)2), ^ 10. Adtniii.'iions, rij/ht to whole conversation. Where the prosecution have proved declarations of the respondent relative to the homicitle by a witness who states that he did not hem* all that respond- ent said at the time, the resjwndent ha.s a right to prove by other witnesses wl'.o were present all that he said at the time tending to exonerate him.self. Cojfman v. Commonwealth, 293 11. Same. On a trial for murder, where tlie prosecution have proved statements made by tlie respondent immediaK'ly aft«'r the killing, tending to shov/ that he killed tlie deci'ased, the resjwndent has a right to nave the whole conversation, in- cludmg the I'xplanation that he then made of the fact. Burns v. State, 323 12. Extra-judicial statements bif respondent. On a trial for felony, any statements which have been made by the respondent iw to any fiut circumstantially material to the issue are adinLssible against liim. Accordingly, where it wius materiiU to show that respondent had rid- den very fiust, it wius held competent t^i prove liis previous statements as to the speed of his horse. Eraser v. State, 315 13. Eight to whole conversation, A witness called to prove confeseions made by the rcBpondent in a certain cou- VoL. I. -43 111'- eu INDEX. versation, who testifies that " he could not remember nil the convei-sntion that took phvce; a srront many things were said in the convei-sation that he did not remember, ' will not be allowed to testify to what he does remein- ber. Beny v. Commonwealth, 272 14. A confession cannot bo proved by a witness who does not remember the sub- stance of all that was said in the same conversation. Ihid. 15. Weight of admissions. Confessions deliberately made, and precisely identified, are oftt^n most satirfac- tory evidence; but more verbal admissions, unsupjwrted ">y other evidence, should be cautiously wei^rhed, because of their liability to be misunderstood, the faciUty of fabricating them, and the difficulty of disproving them, burns V. State, 32:i 4 t * ' ■ ^ i i ADULTERY. 1. Proof of marriage. Under an indictment charginp the t •spondent, a married man, with adulter- ous and liuscivious cohabitation with a shigle womiui, the prosecution ott'erc evidence tendinff to prove the marriage of the respondent m 18(50. To avoid this mamafre. the respondent testified in his own behalf that he had b(?en manned in I'^tU, to a woman who was still living, and from whom he had never been divorced : Held, tliat it wa.s sufficient to niaintain the ollegii- tion of the indictment, if the jury found either of these marrisvges to be a legal, subsisting marria^'e at the tinie of the cohabitation, anred to prove that they acted in good fiuth under the iuUice of a justice of the peixe, and hon- estly thouglit they wiTO coiumitting no otlensc. //(•/(/, that the evidence was proiierly excluded. State r. Goodcnow, 42 ALTBI. A charge that "e\ndence of an alibi is evidence of a suspicious character," ii error. Line v. State, 615 ALIEN GRAND JUROR. See GnAND Jckt. •s. llMiitaM ALTERNATIVE ERROR. See EiiRon. ISV ! INDEX. 676 AMENDMENT. Tlie prisoner was indicted for stealing nineteen shillinge and sixpence. He was proved to have stolen a sovereign : Held, that by 14 and 15 Vic, ch. 100, sec. 1, the court at the trial had power to amend tliu indictment, if necessoiy, by substituting the word " money " for the words " nineteen and sixpence, ' and that by sec. 18, the indictment so amended was proved. Queen v. Gum- bk, 396 ARRAIGNMENT AND PLEA. 1. It must affinnatively appear on the record that the respondent was arraigned and pleaded to the indictment. Ayleswmih v. People, 604 2. Record. It must affirmatively appear by the record of a criminal case that there htia been an aiTiiignment and plea, or tJae verdict will be set aside by writ of error. Grigg v. People, 602 3. On the trial of an appealed criminal case, where the defendant was arraigned and pleaded before the justice, it is not necessary that there should be a new arraignment and ploa in the appellate court. Eiscnmcm v. State, 605 4. Record. Where it does not affirmatively apnear from the record that defendant was ar- raigned and pleaded before trial, a conviction will be reversed on error, and tliis rule applies to c;ises of assault and battery. Davis v. State, 606 5. Siipplipuff pUa after vonl'.ct. Ai't<'r verdict the court has no iwwer to have a plea entered nunc pro tunc for tlie defendant without his consent. Ihkl. 6. Where there was no arraignment and plea, but the respondent, being present, announcedhimself ready for trial, and went to trial, without olvjec- tion, the omission of the arraignment and plea will not avail the respondent on a motion tor a new tiial or in arrest of judgment. State v. L'nsmdif, 667 ARREST. A peace officer may lawfully nrrest, without a wan-ant, one whom he has reas- onable cause to suspect of a f.'lony, and it is not necessary for hLs justifica- tion to estabUsh the guilt of the suspected person. Dmhring v. State, 60 See Homicide. ARSON. See BuuNiNG. ASSAULT. 1. Pointing unloaded weapon. On an inclictment for an assault and battery, where the evidence showed that tlie respondent pointed an unloaded pistol at the prosecutor, at the distance of six paces, and ordered Ww prosL'cutor to kneel down, wliich he did through fear, it was held that this did not constitute an ascAult. McKay v. State, 46 i; 676 INDEX. 2. IntetH. Under the Texas code, ix)inting an unloaded weapon, wtliout any actual int^^nt to do physical injuiy, is not an assault. In order to constitute an assault, there must be an actual intent to do a physical injury. Ibid. 3. Ability to injure. Where there is no ability to inflict injury, and this is known to the respondmit, he CtUinot entertain the intent to do uyiury. Ibiil. 4. Fear. Fear on the part of the prosecutor cannot constitute a threatening ad an as- sault, when there is no inti.nit or ability to do physical injurj-, even thoufrh such fear is reasonable under the circumstances. IbiiL ASSAULT AND BATTERY. 1. On the trial of .an indictment for .assault and batteiy, the e\'idence showed tliat the prosecutrix .and the respondents were members of a society called Good Samaritans. The society luid a cei'emony of expulsion from the society. The prosecutrix becoming remiss in her (lutie.<», the respondents proceedtMl to perfonn the ceremony of expulsion, wliicli consistetl in suspending tin? prosecutnx from the wall by a cord fiustened around her wiiist, the prosecu- trix resisting: Held, that resiiondents were guilty of iui ivssault and battery. Stater. Williams, U] 2. Jiecaiifion of utolen propetii/. On the trial of an indictment for a^^sault and battery, the resjwndent offered to prove that the assault and batteiy was committed in att<'mpting to retake a tiorse which had been stoleii from him a sliort tim(> before, from a pcimoii in whose po.ssession he found it. //cW inadmissible, and that it would not ex- cuse, justify, or mitigate the otl'en.se. A man han no right to retake stoliii property by a breach of the iK'ace, llindrix v. State, d7 8. Fi(jihtiiiff bji mutual agreement. On .an indictment for as.sault and batteiy when> the evidence wivi that the re- spondent anniised in the fight, wliich continui'd iintii one of the parties declared himself satisfied, it wwn held that ea<'!i was guilty nf an a.ssault and batterj- on the other. Commonntallh r. Collbrnj, '<',) 4. All fighting is unlawfid, and it is of no oonserjuence that it i.i by mutual nuree- ment and without angi-'r or malice on the part of those engaged in it. Ihid. 5. Former conrietion. On an indictment for an assault and battery, the resixindent j)leailed that lie had been tried, convicted and fined for a breach of the j>eju'e, and that said conviction was for the identical facts charged in the indictiiient. ( In api"iJ from an order dismissing the indietinent, the fact.-; alleged in the plea beiiiLT admitted to be tnie, it was lit hi, that tJie pl>'a wa.-* good, and tlie former conviction a bar to tlie prosecution of the indietmeiit. t'omiiwuievulth r. Ilairk'iiifi, 65 6. Statute roust rued. A statute which i)nnishes the infiicting of wounds by shofiting or by cutting, tlinisting or st^ibbing with a knife, dirk, sword or other deadly weajHin. diMV not eiubnice striking and woiuiding with a pair of blackHinith tongs, and an indictment charging tlie latter was liild to charge a simple assault imd battery only. Ibid. TT^ INDEX. 677 ASSAULT WITH INTENT TO KILL AND MURDER. 1. Written verdict coimtrued. In a prosiKiution for a-isault with inttrit to murder, the jury brought in tlie fol- lowing wTitton verdict: " We find the prisoner, John D. Wnght, guilty of assault with intent to kill William Waumcr, as chai-ged in tlio information; also, that the shooting done by Wright was done under great provocation, and we would recommend the prisoner to the mercy of the court." The judge?, aftflr reading the verdict aloud, said, "you find the prisoner guilty as charged iii tlie information," to which the jury nodded assent; and the verdict so given was recorded as a general vercUct of guilty, and the jury discharged. On these facts it was held, that the finding of the jury could not be construed as a finding that the prisoner was guilty of anything more than .issault and battery, and that the entry of tlie general verdict of guilty in the record was unauuiorized. Wright v. People, 2ii 2. Siijfii'iencn of evidence. On an indictment for assault with intent to murder, where the evidence showed a quiurel, in which the prosecutor struck the respondent in the face, the le- spondent then going to the house and coming out with two guns, and that the prosecutor then iulvanctd towards the resjwndent \vith threatening ges- tures, taunting him to shoot, when the respondent shot, and that the proso- ciitor was a much more powerful man than tlie prisoner, it was Md, that if death had ensued it would not have been murder, and the charge wae not sustained. Smith v. State, 246 3. In ahsault with intont to murder, every ingredient of murder must be present, except deuth, and where if death had resulted, the offense would have been mani3i.;'.igkter and not murder, the charge is not made out. Ibid. 4. Intfiif, AVliero the evidence showed that the res{)ondent shot at A. intending to kill liini, but mis.'^ed him iuid accidentally hit B., a by-stander, it was held, that \w wiu* not guilty of at;;ault Avitli intent to commit murder on B. Barcus r. Stxite, a49 5. Same. In a.«Kault with intent to murder, tliere must be an intent to kill the person afrsaultt>d. Ibid. 6. Evidence. The evidence in tliis ca.se held insufficient to justify a verdict of assault \n\h intent to murder against two of the responclents. Seborn v. State, 597 7. Verdict of assault with deadhj weapon under indictment for assault with in- tent to murder. Where it appears on the fivce of an indictment for assault with intent to murder that the assault charged was committ«'d with a deadly wecipon, the respond- ent may be found guiltj- of an assault with a deatuy weapon. People r. Liffhtner, 539 ASSAULT AND BATTERY WITH INTENT TO COMMIT RAPE. 1. Sujficienc;/ of evidence to jutfifi/ conviction. On an indictment for ,as.iault and battijry with intent to commit, rape, the evidence wius substantially as follows: 'Hie prosecutrix, a white woman, luiving parted from a companion, started to go home iJone through the woods. She heiird tlie respondent, a negro, call out to her to " stop, ' and bttw him running after her about seventy yards away. Sho begun to run aa I, ,■! '. ,» 678 . INDEX. hard aa she coukl, ami was pui-sued by the respondent, who called to her to stop three times, ami wins cutcliing up with her. He pursued her about a quarter of a mile througli the woods, when, coming to the edge of tlie woods he saw a dweUing house near by, and turned oack and ran oil'. It was held, that there was sutticient endence of an assault; Uiat there was sufficient e\'idonce of the intent to commit rape. Koumam and Bynum, JJ., disenting. State i\ Necly, CiW 2. Indictment. On an intUctnient for an assault with an intent to m\iah, which did not state that the act was done " unlawfully " or " feloniously," it was held, tiuit tlie mdictment was bad as to the intent to ravish, but good as an incUctment for an assault and battery, and that a motion to quash was properly over- ruled. G-reerv. State, 643 3. Tuo kinds of rajte. By shitute, rape is divided into nape on females over tlie age of twelve years and under the age of twelve years, and evidence of a rape of the one cUiss will not sustum a conviction for a rape of the other cltiad. Ibid, 4. Variance. Where the indictment does not state the age of the female, tlie court will in- tend that she was over twelve yesivs of age, and evidence of a rape on a female under '■' ige of twelve years will not sustaui the indictment. Ibid. 5. The same rule apphes to indictmente for asKault with intent to commit rape. Ibid. 6. Where an indictment for an a«sault with intent to commit rape does not stato the age of the prosecutrix, evidence of an assault with intent to commit rape on her, she being a feuuUe mider the age of twelve years, will not sustain a conviction. Jbid, ATTORNEY. Authofitij of attorney. H. was iirrest'^d on Saturday night, by a j- oHcoman without a warrant, for a violation t ■. a city ordinance. The policeman, after arre.'iting him, t. 600 BASTARDY. 1. Bastardy is a penal proceeding, and has some of the characteristics of a axil action and some of a criminal prosecution. Faulk v. State, 67 2. Imprisonment. Imprisonment of the putative father for non-compliance with the judgment in a bastardy proceeding does not infringe the constitutional provision against imprisonment for debt. •''"^'' 3. Evidence. In a bastardy proceeding, it seems that it is proper to show on behalf of the de- fendant that the child resembles a tliird person, who has had opportunUty tor illicit intercom-se with the mother. •''"»• i. Same. In a bastardy proceeding, evidence to show that the bastard resembled the chil- dren of a man who had been seen witli the prosecutrix is madmiasible, being too remote and unsatisfactory. ■*"'"• 6. Degree of proof. Bastiirdy, though in form criminal, is in effect a civil proceeding and a prepon- derance (A evidence is sufficient to justify a conviction. People v. Christ- man, '^ 7. Jndf/mcnt. A indgment for the pajTnent of several instalments of money and the costs of 'prosecution and that the defendant " execute a proper and sufficient bond for the payment of the judgment herein in duo form of law " is held not oi)en to the objection that it requkes the defendant to give a bond tor tho payment of the costs. ^'"«' 8. Sufficienci/ of evidence. On a charge of bastardy which is supported only by the uncorroborated testi- mony of the prosecutrix, she being contradicted by three unimpeachcd wit- nesses, as to her having had sexual intercourse with others besides the defendant about the time the child was begotten, and where it appears that she had iireviously charged the paternity of the child on another man, the evidence is held too unsatisfactory to fix the paternity of the child on the defendant. McCoy i\ People, < 1 BETTING ON ELECTION. Sec Gaming. BIGAMY. 1. Evidence of marriage. In a prosecution for bigamy, evidence of the declarations of the respondent that a certain woman was his wife, and of the fact that he had Uved with, recog- nized, introduced and repr(>seiited her as his wife, is sufficient evidence of a mamage to submit to the jury. Commonwealth v. Jackson, 74 2. In a prosecution for big-amy, the first marriage may he proved by the admirssion of the respondent, in connection with recognition and cohabitation, but these are only facts tenduig to show an actuiil mamage, wliich must be fomid as . a fact by the jury. ■^'"'f^' ; iH 6S0 INDEX. 3. Void second marriage. It ia no defense to a charge of bigamy that the second wiarriage was one be- tween a negro and a wliite woman, wliicli is prohibiteil and made void by statute ; for every bigamous marriage is void. It is the entering into the void marriage wliile a yrior valid mamage exist**, tliat constitutes the gist of the ottense; and it cannot heli) mattei's any that there are two eh'ments of illegaUty in tlie case, instead ot one. It is no valid reaxon for relieving a pei-son from the consequences of violating one statute, that the iict of doing so violated also another. I'eople v. Jiivivn, 72 BURGLARY. 1. CJiinniei/. On an indictment for burglar}', entering through the cliimney of a cotton house is a breaking. Walker o. State, 302 N '. ■' 1. jr »*#■' 2. DireWing hoKse. If a part of a storehouse, comnmnicating with the part used as a store, be slept in habitually by the owner or by one of his family, although he sleeps there to [)r()tect the premises, it is his dwelling house. If a perscm who sleeps in a part of a store house communicating witii the j)art used as a .store is not the owner, or one of his family or servants, but is employed to sleep there solely tor the purpose of prot^'cting the prtmiises, he is only a watchman, and the store is not a dwelling house. Slate r. i'oltn, 3(>J 3. Erldence. Evidence that the respondimt entei-ed the prosecutor's house between twelve and one o'clock at night by raising a window (jf the room in which the prosecutor and liis wife were sleeping, and, when discov.«'red, went out through the window, there having been money and clothing in the room, is sutticient to sustain a conviction lor burglary, although it docs not appear that respondent stole anything, il'oodirunl v. State, 'Mi 4. Intent. The intent with which a prisoner breaks and eiiti-rs the dwelling house of an- other in the night time is a question of fact for the jury under all the facts and circumstances of the ciuse. Ibid. h. In a prosecution for burglary, the testimony should V)e such as to tlio time when it was counuittt.'d a.s to exclude all reasonable doubt that it was com- mitied in the night time. Waters v. Stole, 307 C. Insuffieient evidence. In a prosecution for burglary, where the evidence leaves the time in which the oti'ense was committed exactly balanced between day and night, that is, that it was committed within a period of about forty or I'oity-tive minutes, one-half of which w;u< day and one-half of which was night, the defendant should have the beneiit of the doubt necessarily arising, and ought not to be convicted of a breaking in the night time. Ibid. 7. Evidence. Evidence that on the morning of August 12th, the prosecutor discovered l)etweon daylight and sunrise that his house had been broken into; that the hous(! wius on a pubUc street in a town, and that a dry goods box and chair had been placeil Ijcneath this window where the entry wii« ett'i.'cted, is sutticient evidence to be submitted t« the jury tliat the breaking wa.s in the night time. State v. McDonald, StiK "W' I INDEX. 681 was one bc- iiiide void by in|r into the Lutes the gist :wo L'k'uit'iits T icUoving ii {U:t of doing 72 cotton house au2 tore, be slept ) sleeps there fho sleeps in a store is not ;o slei'p there ii watchman, Aveen twelve u which the 'd, went out the room, is i not appear BURNING. 1. Statute construed. In a statute which provides that "every person who shall set fire to anv build- ing, * * or to any other material with intent to cause any buildmg to be burned, or shall, bij any other means, attempt to cause any buikhnp tc oe burned," the words "by any other means " must be construed to mean by any other means of a like nature; and an attempt to cause a building to be burned by soliciting a thurd person to set fire to it, and fumisliing him with the materials, is not witliui the statute. Coolky, J., lUsseHtUig. MelJade v. People, ^1 2. BuniinffjaP to escape. A prisoner who burns a hole in the floor of the lock-up for the purpose of mak- ing his escape through the hole so made is not guilty of arson. It seems, that if he had set fire to the builihng intending to burn it up and make his escape in the confusion attendant on the burning of the buildmg, he would be guilty of ai'son. Delany t\ State. 86 3. Burning insured property. In a prosecution for burning insured property \vith intent to defraud insurers, an actual valid insurance nmst be proved. Meister v. People, 91 4. Evidence. In a prosecution for burning insured property, evidence that a month before tlie fire the defendant wanted a witness to burn the property is aibuissible. Ibid. 5. Statute construed. Under a statute punishing those who bum insured property, and those Avho cause or procure it to be burned, the defendant who is charged with bummg the property cannot be convicted on proof that he procured the building to be bunietl while he himself was absent. Burning and procming to be burned are ditl'erent ott'enses under the statute. Ibid. '0. house of .in- all the fiicts Ibid. to the time . it wiui coni- in which the gilt, that is, ive minutes, iH defendant ought not fo Ibid. ?red l)etween it the housi! id chair had , is sutticient in the night ;J68 CHALLENGE. See JuuY. CHANGE OF VENUE. See Venue. CHARGE OF COURT. 1. Charge assuming fact. A charge wliich assumes facts as proven is erroneous. Bemi v. Commonwealth, 272 2. Same, On a trial for murder, a charge that "if the mvy find that the respondent stmck the deceased with apiece of wood, which wae hkely to produce death when used ;is he did use it, and that deceased died, etc., is erroneous in as- sumuig ius a fact that respondent used the piece of wood m a manner calcu- lated to produce death. Leiber v. Commonwealth, cWa 682 INDEX. 3. Cfiarge dealing with facts. A charge which enumerates the facta which the evidence tends to prove is erro- neous. The chftrj,fe fchould point out the iacia necessiuy to be found, and then leave to the counsel to argue and the jury to detennine whether or not the evidence proves these facts. Coffman v. 'Commonwealth, 293 4. Presumption of innocence. It is error to refuse the charge that in a criminal c»vse the defendant is presumed to be innocent, and before he can be convicted the state must prove his guilt beyond a reasonable doubt. Line v. State, 615 CHASTE CHARACTER. See Abduction. CONFESSIONS. See Admissions and Confessions. CONSPIRACY. 1. Consummation of fraud. On an indictment for conspiracy to defraud, it is not necessary to allege or provo that tlie fraud wtus successful. The act of conspinicy is an ottense of liself, tliough the fraud be never consummated. Isaacs t\ The State, 103 2. Consummation of crime. It is not necessary to constitute the offense of conspiracy that any act should bo done in pursuance of the conspiracy. Landringham v. State, 105 3. Indictment. An indictment for conspiracy to commit robbery, which charges an intent to "forciblvand feloniously take from the pei-son of A. 15.," but does not charfre that it was to be done " by violence," or " by putting in fear," is in- sufficient. Ibid. CONSTITUTIONAL LAW. M , m 1. A statute validating all the ordinances of a city is obnoxious to a constitutional provision that no statute slionld embnice more than one subject matter. liriesirick V. Mayor, etc., of Brunswick, 559 2. A statute entitled " An act proliihiting the sale of spirituous or fennontod liquors," etc., prohibited also the giving away of liquor on election days. The provision against giving wns held not void or obnoxious to the constitu- tional provision that " every law shall embnice but one subject, and that shall be described in the title." Cearfoss v. State, 460 3. A proviso in a crimmal statute agauist conspiracy, which reads as follows : *' Provided that in any indictment under tins section it shall not l)e neces- sary to charge the particular felony which it was the purpose * * to commit," is unconstitutional and void. Landringham v. State, 105 4. Constitutional right. ITie respondent waa charged, in an infonuation for burghuy and larceny, as a TNDEX. . 683 {)rincipal. He was found giiilty of beiny accessory before flic fact to grand orceny. The statute permits an p^cessoi-y to be charged and convicted as if he wei-e a principal. Jhld, not in derogation of his constitutional ri^ht " to demand tlie nature and cause of the accusation agamst liim," ai\d tluit there waa no error in tlie verdict. State o. Casaady, 607 5. Wither of jury in mmUmeanoro. On the trial of a criminal complaint for an assault and battorj', before a justice of the peace, a defendant may waive his right to a jury, where he expressly 80 elects, and if he dues so, a trial without a jury is uo^. a violation of hu constitutional right. Ward v, I'eojde, 565 CONTEMPT. 1. Wlutt is a contempt. A newspaper article concerning a ci-iminal case pending before the supremo court, which prophesies that the prisoner will get a new trial and eventually escape justice, because $1,400 is enough nowadays to purchase immunity from the consequences of any crime, and that " the couila are now com- pletely in the control of coiTupt and mercenaiy shystera — the jackals of the legal profession — who feast ani fatten on human blood, spilled bv the hands of other men," is a con t< nipt of court of flagrant character, and cal- culated to embarr.iss and obstruct the atlministration of justice. Scott and S II KiJiON, J J., dissenting. I'eople v, Wilson, 358 2. Constructiie contempt. Under a statute that " tlie said court shall liafc power to punish contempt ottered by any person to it while sittuig," the court has power to punish u constnictive contempt committed by a newspaper article referring to a Cftso then pending before the court. All acts calculated to impede, embar- rass or obstruct the court in the adnunistration of justice should be consid- ered as done in the presence of the court. (And see note, p. 141.) Ibid. 3. It seems that the court would have no right to pmiish any criticism on its de- cisions or otticial conduct in regard to cases that are ended, so long as its action is correctly stated and its otticial integrity is not impeached. Ibid. 4. liespor.sihility of jjropriefor of newspaper. The pi-oprietor of a new,s[)aper may be punished for contempt for an article published in the newspaper owned by him, although such luiicle was pub- lished witho)it his knowledge or consent, when on a mle to show cause why he should not be pmiished, he makes no defenje as to matters of fact, except that he did not know or sanction it before puolication. (And see note, p. 141.) Ibid. 5. liesponslhiliti/ of managing editor. The managing editor of a newspaper may bo punished for contempt, for per' mitting the puljlication of a newspaper article, which, although not written iblical ' crud'3 from the paper. by him, wa-s seen by him before publi cfi ration, and which he had power to ex- lUd. 6. Appearance by attorney. On a rule to show cause why an attachment should not issue against the re- spondents for a contempt, if the respondents rely on an excuse only, they should appear in iwrson. If they app«?ar by attorney, and defend on legsu grounds, an excuse can only be regarded in mitigation of puuishment, and not as ground for dischai'guig the rule. I bid, CONTINUANCE. 1. Tlie defendant applied for a continuance when the case was called for trial, on Uie ground tliat the indictment was only found two days previously, and ■-.11 It 1 '1 684 INDEX. his counbol hiul been so much cnffogetl that he had not been aUo to prepare tiie case for trial. It boin^ niuOu to ujjpear by tlie a'rtiticato of the trial judge, that the ilofendunt had been an-esti'd the tt'rm before, and wiw tlien fully informed of the charge atfaiiist him, and was aHked if ho dcMired counsel, and want/id a trial, to both of which questiouH he luiswered no: Jhid, there waa no error in overruling the motion for a contiimance. IShiv- ers ('. State, '206 2. liiffht to continuance f Of absence of witness. Resiwndent being amiigned on the 14th, liis trial waa Bet for the 18lh. On tho 14tii ho had his subixjcna issued, but a miiteriid witness in his behalf could not be served, being temporarily absent. On these facts being shown to tho court by affidavit, it wiw held, that a motion for a continuance shoulil have been granted, and to refuse it was error. Shiniin v, I'eople, 050 CORPUS DELICTI. See Homicide. CROSS EXAMINATION. See Witness. \ 111 •I ^' I' CUMULATIVE SENTENCE. See Sentence. DANGEROUS WEAPON. 1. What is a dangerous weapon is a question of fact, and not of law, and tho court has no right to instruct the jury, as matt<;r of law, that a iK)liceman's mace is a dangerous weaiwn. Doehriny i: Slate, 60 2. What is a dangerous weapon is a question of fact and not of law. Bctri/ v. Commonwealth, 272 DEATH FROM SURGICAL OPERATION. See He iiciDB. DISORDERLY HOUSE. See House of III Fame. DECEASED WITNESS. EVIDENCE OF ON FORMER TRIAL. See Evidence. DISCRETION. Matter of discretion. Whether or not a co-respondent, indicted as an accessory, shall be first tried so tliat his testimony may be had for the defense on the trial of tlie principal, INDEX. 685 '.I prepare the triiil wiui thi'ii J ik'MireJ ■LTud no: '206 On tho iiU coiUil wn to tho uld have 050 ia a matter in tho diHcretion o! tho trial court, and the TOpreme court will not review the oxcrciHo of that discretion where there is lo evidence that it has been abused. Stute v. Underwood, (351 See Indictment. Foboeht. DUPLICITY. See Homicide. DUTY OF PROSECUTION IN CALLING WITNESSES. See Homicide. DYING DECLARATIONS. See Homicide. ELECTION, See FoiioEUY. Seduction. , and tho liceman'a 60 Bern/ V. m VL. t tried so >rincipal, EMBEZZLEMENT. 1. Snfflekncii of emi>hifment. Under an indictuu'nt foundt'd on tho ordinary statute against embezzlement, evi(lt'nee that the prosecutor fjrave tlio prisoner a watch which the prisoner, a!4 ajjent tor the i)rosecutor, wa.s to trade for a wagon when he could find a suitable opjwrtunity, ajid for which sen'ice the prosecutor was to pay the prisoner $").00, sliows a suthcient employment to make tlie prisoner guilty of einbi'/zlcuuMit, in convertuig the watch to his owii use. Slate v. Foster, (and see not*', p. 141J), 146 2. Statute const riii'd. i A statute against ombczzlempnt from " any coi-porate body in this state " does not extend to or include foreign corporations doing business in the state witliout autliority of law. Cory v. State, 166 3. C^erk or scrnint. ' 'Die prisoner was engaged by the prosecutors to solicit ordei-s for them, and was to Ikj paid by couuuissioii on the sums received through his means. He had no authority to receive nionev ; but if any was paid t» him he was forthwith to hand it ovi-r to liis employers. He was at liberty to apply for orders wherever he thought most convenient, but was not to employ himself for any other persons than the prosecutors. Contrary to his duty he appUed for payment of a (.'ertain sum; having n.'ceived it, liu applied it to his own use,, and denied, wlien itsked, that it hiul been ])aid to hhn: Held, on the above fiu;ts, tliat tht! prisoner was not a "clerk or servant" within tlie meaning of 24 and 2") Vic, cli. 90, sec. 68. Queen t'. Negus, X^ 4. Same. The prisoner's father was clerk to a local board, and held other appointments, llie prisoner lived with his father, and iissisted him in his office, and in the business of the board. In his father's absence, the prisoner actetl for him at the nwetijigs of the board, and when present, he assisted him. The pris- oner wiu=i not appointed or paid by the tward; and there wiis no evidence that he received any salary from liis father. The board having occasion to -J y 686 TNDEX. raise a loan on mortsrn.gt\ tlio priHonor mantiprcd Uif iMiHinoHH for Iiin fatlicr, and at hin hitlier'H oftiee riTf ivod the money from tiif niortjfiirfi'i'H, und iii>- Sio; '•iiitod 11 part of it to liis own iiho : //(■/(/, tiuit tlii're wiw t'vidt'nco that 10 prinonor wiw a cU-rk or wrvant to liiH fatiifr, or t'n\ployt'd as clfrk or servant, and was yuilty of uaibeialonientfromliim. (Jmm r. h'oulkci<, 153 6. Direction in ui'itinij. The prisoner, a stock and shan^ dealer, wa<* employed l)y the prosecutrix to pur- chase securities for her. He bouj,'iit in iiis own name, and reieived money from her from time to time to cover the amountH he iiad paid or laid to pay for the securities. Sucli payments were not made ajfuinst any particuhir item, l)ut in chenues for round Hums. On one occasion he wTote to her, " I indfw a contract note for iiOO/. J. l)or.ds, at 112, Itki/.," and the contract noto ran, " Sohl to Mrs. S. (the prosecutrix), MOO/. .1., at 1 1'J. :i.i(;/.," and was ei^fned by the prisoner. The prosecutrix wrote in reply: " I have just re- ceived your note and contract note for three J. shares, and inclose a chemio foriiMli/. in payment." 'J'lie prisoner never paid for the hoiids, but in viola- tion of i^ood faith, appropriated to his own use the priK'eeds of the cheque: //«■/(/, that the letter of the prosecutrix was a direction in writinj; to apply tl'.? proceeds of the cheque to pay for the bonds, if they luul still to U' paid for, within the meaninjf of 'J4 and 2'* Vic, cli. i»(i, sec. l'>; and that the prisoner \vi\s rightly convicted of a misdemeanor under that section. (Jioen V. Christian, ir)? See Lahcent. ERROR. 1. Alternative error. Where the record does not show whether inadmiR.«ibIo evidence which w.ns objected to was admitted or not, but the court can sec from the record that if such evidence WiW not admitted, there is nothinj; to sustain tin? verdict, the ju■. Stuti; o'J.'i 3. Error that Joes not prejudice. Where the jury finds the respondent guilty of murder in the first degree, under instnictions properly di.'fining i.uu'der in the first degree, it sinus that r<.- spondent would not be prejudiced i)y an erroneous instruction as to murder in Uie second degree. Slate v. Underwood, 2")1 4. Formal error cured by verdict. Any error in tJiis case in tJie summoning of the jury held cured by the statute of amendment. Lynch v. Connnonueaith, "J^iJ 5. hnpropor remark. Tlie court has no right to say in the presence of the jnr>' that it was the duty of the prisoner to bring forward his defense on his preliminary exiunination, Sullivan V. reoplc, oo'd 6. Remark by court in presence of jury. An improper remark by tlie court, lulverse to the prisoner in the presence of INDEX. 687 the jury, will bo conHidcrod on writ of ccror a» though it were a part of the chiirge. Jbid. 7. Improper remark in }>reseure ofjiirif. An iinpropi-r rcniiirk, tm-judiciul to the reHpondont, mivde by the court in rulinu out tt'Btinioiiy is eiTor. Shirwin v. i'eople, 650 8. Error in request to charge. If tiiere i« ixny eiTor in ii request to charge, or if a request to chargo in the dis- junt'tive is iwked, either branch of which is erroneous, the whole charge is properly refused. State v. Citusadij, 567 EVASION. See Liquon Selling. EVIDENCE. 1. Of incorporation. On tlio ti-iiil of an indictniont for stealing from a corporation, evidence that a company known liy tlie name givi'n in the indictment is a corjioration de "■ ' ' f business is sufficient evidence of incorporation I'eopie v, liarric, facto donig 1 178 2. Transcri/'ts of puhiic reconh. Under a statute which provides that the certificate of any public officer of the Btate to aiiv record, lUKunn'iit, })aper on file, or other matter or thing in his othce, simii be admissilile in evidence in any court of the static Held, that s\ich certificate is admissible against a defendant in a criminal ca.'te, and that his constitutional right to be confronted \vith the witnesses against him is not thereby violat^'tl. Shivers i\ Sttde, 206 8. Eridenre ofd'reascd witness on former trial. 'Hie evidence of a decea.sed witness, given on the first trial of the respondent, is admissible against him on a second trial of the same uidictment. Kean r. Comnionunillh (and see noU\ p. '20;l)t 199 4. But the statement in a bill of exceptions of the testimony of a deceased witness, given on a tormer trial, is not admissible against the respondent on a second trial of tlie same indictment. The testimony of tlie deceased witness must be proved by i)ersons wiio were iivsent at the first trial. The respondent hius a riglit to ue confronted with the witnesst.'s against him. Ibid. 5. Parol eridence of what the Ian' requires to he reduced to writing. Where the law requires a committing magistrate to take the voluntary confes- sion of the accused in writing, the writing is the best evidence of what state- ment lie made on his examination, and without proof of the loss or destruc- tion of tht; writing, it is not competent to prove by parol what tJie accused said o\ such examination. Wright v. State, 191 6. Memorandnm. Wiiere -a witness refers in his testimony to a memorandum as showing a fact involved in the issue, and states that he has such memorandum in his pocket, it is error for the couri to refuse to compel the witness to produce the mem- orandum. Daniel r. State (and see note, p. 187), 187 7. Conclusion of fact. It is not competent for a witness who hiw testified " that ho slept in the same room with tlie prisoner the same night that the crime he is charjred with was committed; tliat tlie witness wius wakeful; that he saw the prisoner go to bed, and found him in bed the next morning when he woke up," to testify J > 088 INDEX. further, that in his opinion the prisoner could not have pone out T^-ithout his knowledf^o. Iliis would be testifyinior to an inference of fact which it is the province of the jury to dmw. Dennett c. State, 188 8. Presumption of fact, Tliere is no presumption of fact which is not entu-ely within tlie di^wsal of a jur>' in a criminal case. Hamilton v. State, 618 9. Same. Intent may Iw inferred from the act, but there is no artificial rule of law which requires or fUows a particular intent to l)e presumed from piven facts, when the undifij/UDed evidence shows that no such intent was in fact entertained. Barcusv S'ate, 249 10. Statement of co-con.opirator. A statement l)y one respondent made the day after the commission of the crime is not admissible apainst his co-respondent, althouffii it hM appeared that there was a conspiracy between them to commit the crime. Hamilton V. State, 618 11. It is error to allow a jury to infer a fact, of which there is no evidence. Saun- ders r. People, 346 12. Insufficient eridence. Testimony which raises a mere conjecture oupht not to be left to a jury as e\-i- dence of a fact which a party is required to prove. State v. Carter. 444 13. Comparison of handwriting. Where, on the trial, the respond^^nt admitted the ponuineness of a certain letter, it wa.s held that the jury mipht iise it to compare with the handwriting of letters whose penuineness was disputed by tlie respondent, but to whose genuineness a \vitness testified. State r. Clark, 34 See Admissions and Confessions. EXTRADITION. 1. Fugitives from justice. The povt^mor of the state has no authority to surrender a fiipitive who han com- mitt^nl a crime in another state, unless judicial proceedinjrs have been com- menced apiiinst him for the crime in the state m which it wiib connuitted. Ex patie John White, IG'J 2. Arrest of fugitires from justice, A jierson cannot Vm^ arrested here for a crime committed in another state, imless a prosecution ha.s been commenced, and is jiendinp ap.imst him for the alleped crime in the state liavinp jurisdiction of the offense. Ibid. 3. Constitufionalifi/ of law concerning fugitires from justice. The court say, without passinp authoritatively on the point, that no reason is perctMved why a law allowinp fupitives from justice fleeinjf from another state to Ije an-ested here and delivfred uj) to the authorities of the state having jurisdiction of thu offense, is not constitutional. Ibid, EXPERTS. See Homicide. Seduction. INDF^C 689 I 1(1 i :i FALSE PRETENSES. 1. On an indictment for false pretenses, in the sale of a horse, a pretense thattho horse was sound, when the respondent knew that he was not, is a false pre- tense within the statute. State v Stanley, 209 2. Tmlidment. An indictmen*^ for false pretenses in selling a mortgage which alleges thatt he prisoner pretended that he had recently sold the real estate covered by the mortgage, and that said real t.'state was situated m I., but which does not give the name of the purchaser or describe the property, and does not allege that such name and description are unknown, is bad on a motion to quash as being too uncertain and indehnitti. Kellar v. State, 211 3. Same. In an indictment for false pretenses in the sale of a $500 mortgage, where the pret4'nse was that the real estate covered by the mortgage wius worth llJ.-'iOO, an allegation tliat the real estate was not worth $:H,')00 is insutticient. The indictment should show that the property was not of suihcient value amply to secure the sum of |oOO. Ibkf. 4. Intent to defraud. It seetm that, in a prosecution for false pretenses in the sale of a mortgage, if the real estate covered by the mortgage is sufficiently valuable amply to se- cure the sum due on the mortgage, it is immaterial that the respondent represented tlie real estate to be very umch more valuable than it actually was. Ibid. 5. Indictment. In an indictment for false prettmses in the sale of a moiigage, where the pre- t<>nse is tiiat the property covered by the mortgage is not subject to any prior liens, an allegation that the property wa.s subject to prior liens, but which does not set them out or describe them, is insufficient. Ibid, 6. Future events. Representations of future events are not false pretenses, which must be as to existing fticts. Ibid. 7. Indictment. An indictment containing contradictory and repugnant allegations is bad. Ibid. 8. Same. The indictment in this case is held to allege facts sufficient to deceive a person of ordinarj' caution and prudence. Jones v. State, 218 9. Property obtained. Where a note was obtained by false pretenses, and a few hours afterwards the i-i'spondent induced the prosecutor to exchange that note for a second of the same tenor, l)ecause the first was written in pale ink, it %yas held that the evidence was sufficient [o sustain the allegation of the indictment which charged tiie obtaining of the second note by means of the false pretenses, it being all one transaction. Ibid. 10. False token. A i^rinted business card, such as is ordinarily used by business men, purporting to Ite the ciird of a, nuinufacturing firm in (.'., which is not a genuine bus- iness card of such ffiun, but fraudulent, is a false token. Ibid. 11. Indictment. An indictment for false pretenses, which does not allege that the prosecutor re- lied on the false pretenses as true, is bad on a motion to quash. Ibid Vol. I. -44 ii 690 INDEX. 12. Same. An indictment for false pretenses which does not set out the contract into which the prosecutor Wiis induced to enter by meims of the false pretensco, is Ijail on a motion to rjuash, because it does not show why or how the prosecutor was induced by means of the false pretenses to part with his property. Ibid. 13. Same. An indictment for false pretenses which does not allege that the respondent '* knowintfly" made the fidse pretenses is bad on a motion m an*est of judg- ment. Alaranda v. State, 225 FEAR, See Assault. FORGERY. 1. Letter of introduction. A letter of introduction directed "to any railroa*! superintendent," Ix'speakiug courtesies towiu'd the bearer, has no XegA valiihty and affects no legal rijrhts, and is not a subject of forgerj*. Waterman v. People, 225 3 2. Imperfect instrument. An indictment chartring respondent with forging a bank check payable to tiie order of is bad on denmnvr. A check not payabli; to bearer, or to the onlor of a named person, is so imiwrfect that it could not defraud any- one. Williams r. State, . 227 3. Indictment. An indictnu^nt for forgery, which does not allege who was intended to be de- frauded l)y the forged instrument, is biul on demurrer. Ibid. 4, Variance. An indictment for forging a note purported to set forth the note according to its tenor. 'J'he signature to the note, as stilted in the indictment, was, liii , . his Oiha X CaiT. The note offered in evidence wa.s signed Oatha x Can*. Held, mark. mark. a fatal variance, and the note inadmissible. Brown v, People, 228 Ibid. 5. Tenor. The word " tenor " binds the pleailer to tlie strictest accuracy. 6. Election — discretion. On the trial of an indictment containing two counts, one of which alleges tin' forging of a draft and the other the uttering and publishing of tJie forged draft ius true, it is not eiTor for thu court to refuse to require the prosecutor to elect on wiiich count he will proceed to trial. This is a uiattt^'r ui the dis- cretion of the triiil court. Miller e. Slate, 2:W 7, Presampfion offonftnqfrom proof of uttering. Tiie uttering and i)ublishing of a forged instnnnent by the rpsj)ondent raises no presumption of law that he connnitted the forjSlie picked w^ a stool, and said slie would level him with it if he did not go. He said, '* 1 11 level yon now," and innuediately jjullfd out a pistol and shot her. I'revious to this he had Vie(!n on j^ood terms witli her. IMit, nmrder in the second degree, tliere not being suthcient evidence of premeditation and dehberation. Ihid. 4. Presumption as to degree of murder. Where the evidence shows that respondent kiileil deceased mth a pun loaded by lK)wder and bullets, the law presumes the killing t«j be int<'nlionai, and ID is nmrder m the second degit.'e, in the absence of proof to the contrary, • iid it devolves upon the defendant to .«>how from the evidence in the cause, I 'he reasonable satisfaction of the juty, tliat lit; is guilty of a less crime, ''^ hat he acted in self-defense. State r. L'lahraood, 'iol 5. In cases of homicide, if circumstances of wilfulness and deliberation are not proveJ. ^'-'^ law presumes the kiUing to be nmrder in the second degree .iy. Ibid. Wh 1 h-\ 6. Same. On a trial for felonious homicide, no presumption arises from the killing, of an ort'ense liigher than nmrder in the second degi'ee. McCuc v. Cumnwnurallli, 2m 7. Manslaughter. In a prosecution for homicide, where it appears that no weapon was used, but that death resulted from a blow or a kick not likely to cause death, the of- fease is manslaughter and not murdt-r, although the lussault Ix; unlawful and malicious, umess the respondent did the act with intent to cause death or grievous bodily hanu, or to inn-iH'trate a felony, or some act uivolving all the wickedness of a felony. W'eJlar t I'eople, 2T(i 8. Eosistintj illegal arrest. On a trial for murder, where e\'idence waa given by the resi)ondenis that the homicide was committed by theresi)ond(!utiu resisting an utterly unjus- tifiable and illegal arrest, attempted l)y the dtK-eafled wlio wiw a i)olic( luau, it Wiis held that the ort'ense wu« no more than nutnslaughter, anil tluit the court erred in excluding tliis evidence from tlie consideration of the .jury. HaJl'eiig k. People, 287 9. Warrant signed in blank. A wanant si{.rned by a nnigistrate in blank and afterwards fdit>d up by a |io- lice sergeant with whom it had been left has, altiiougii regular on its face, no legal force or validity whatever, but is an absolute nullity; and if an of- ficer IS killed in attempting to maktj any arrest under it, tlie ott'ense is but maiKer to prove that both were in the habit of becom- ing intoxicated. Personal habits are means of identification. Ibid. 2G. Eridence of mot ire. On a trial for felonious homicide, any evidence te.nding to show that the respond- ent was jealous of the deceasee resijondent, and anned himself with a revolver and a knifi', saying that he intended to have a settlement with tiie respondent, and that when the respondent came up, the deceased spoke to him, and the two walked otl" to- getlier an(l shortly afterwards the n.'port of a pistol was heard, but there was no evidenct! of the circumstances immediately preceding the killing, iifti'r the two walked away together: It was held, that the respondent liad a right to prove that the diseased had said when starting to find him, that Ik,' Wius going to kill him, and used these words: "When you hear from me, you will hear that him or me is death" Such declarations are admissiblo under the circumstances, as a part of the res yestw. Burns v. State, 323 35. Threats hi/ deceased. On a trial for nmrder, threais made by the deceased agauist the respondent, wliich are not admissible as part of the res (/esfw, and wliieh were not com- nuinicated to the respondent, are inadmiBsiblc in liis behalf. Ibid, 36. lieputatio)! of deceased. On a trial for felonious homicide, where the defense is that the killing was done in self defense, it is competent tx) prove the general character of the deoeaucd for violenee, and his habit of carrjnng arms, where such evidence will tend to explain the iutions or conduct of the deceased at the time of the kiUing, and tlie intent of the respondent. Ilorbach v. State (imd see note, p. 34lT), 3:30 37. On a trial for felonious homicide, evidence of the general reputation of the de- ceased for violence, or of his habit of caiTj^ing dangerous weapons, is not admissible mitil some actH or conduct on the part of the dea^ased at the time of the killing have been proved, which such evidence will tend to illustrate or explain. Ibid. 38. Where then* was evidence tliat at tJie time of the killing, the deceased groeely insult^'d the res|iondent a number of times without luiy prova^ation, anil that wl'.en resiwndent asked him what he meant, he put his hand behind him as if to draw a pistol, when respondent shot him, it wiis held admissible to prove tlh! general ch.aracter of tlie deceiieed for viol nee, and that he was in the habit of carryuig weaix)ns. Ibid. 39. Circumst^intial evidence. In this ciUR', the evidence is held sufficient to warrant the verdict of guilty. Frazer i'. State, 315 40. Datif of prosecution as to calling witnesses. In cases of homicide, it is the duty of the prosecution, ordinarily, to call and examine, on behalf of the people, all those witnesses who were present at the tranniu'tion, or who can give ilirect evidence on anv material urimch of it, wlii'ther such witnesses be favorable or mifavorable to the prosecution. Wellar ; . People, 276 41. Duidieitg. On a denmrrer for duplicity to an indictment for murder, containing but one rx)unt, cliarging the murder of three jiersons, it was held that the count was bail as charging three offenses. People r. Alibez, 344 42. Killing of several. The murder cf three persons constitutee necessarily three offenses. (But see note, p. 346.) Ibid. I ii JJ 698 INDEX. 48. Pleadiitfi under criminal statute. The rospoiulcnt cannot bo conucted of htatutory man«lanKht«r, in attyniptiiiff to imx-nro iin abortion, on an infonnation, charging liini niinply with nuiii- Bhiuffht^-r, wbirh iloi'H not reoite the fuctu wliich constitute the crime umlcr tlio statute, i'cojtle v, Olinstvad, iiUl HOUSE OF ILL FAME. 1. Plead iny. In an infonnation for lettinpf a house for the purpose of prostitution, the stat^^- nu'jit of the locaUty of the house n<>eil not be more precise than in inforiiiii- tions for burglary or arjson. Saundors i: People, o4G 2. Evidence. In a prosecution for U'ttiny a hou^ic for the nurpose of prostitution, it is lul- missible to prove the reputation of the leasee, aiul of the jfirla who were seen in the house. Ibid. 3. Same. Testimony whicli shows that the lessee of a house and women who had boon seen in tlie house were reput^-'d prostitutes is not, of itself, sulKcient to ts- tabhsh tlio fact tliat the house is kept or used us a house of prostitution. Ibid. 4. Same. Evidence of the fjeneral reputation of a house is admissible for the purjiose of establishinff its chariictcr as a house of prostitution. Whether such vi- denct' is sufficient standmy alone to sustaiii a conviction, qiuere. t>.,l- tester v. State, 'S.')0 5. Evidence of reputation. Under a statute makinj» the keepinp of a house of ill fame resorted to for lewd- ness a common nuisance, "house of ill fame" iiiMuns the sane thin^,' us " bawdy house." And the {fist of the otfense beiiifj the use of the house for lewd purposes, and no*, ito r''i)utation, evidence of the reputation of tlie house IS not admissible. State v. JJoardman, o51 6. Evidence. In a prosecution for keepinjf a house of ill fame, evidence of the reputation of the women who fre(pi('nt the house, luid the chiu'iicter of their acts ami con- versation in and alwut tlie house, is competent. Ibid. 7. In a prosecution for keepini» a house of ill fame, Uie house must bo proved to be a house of ill fame by facts, and not by fiune. Ibid, HUSBAND AND WIFE. 1. A husband may l)e criminally punished for illegal sales of liquor made by his wife in his presence and with his knowledge, llenshf r. State, 40") 2. On tJie trial of a liusV)and for an illetral sale of liquor by the wife in liLs pii>H- cnce and with his knowledgi', evidence of former sales by the wife in his presence is admissible to illustiute the character of tho s*ue ui the caut; on trial. Jbid. IGNORANCE OF THE LAW. Ignr.imce of the law is no excuse for aime. To constitute a cricce there must be a criminal mtent, but when an act is unlawful an uiteiit to do tliat act, INDEX. 6))9 faavin^r a full knowledge of tho facta is a criminal intent without regard to tho party's kuowluclgu of the law or that the act is unlawful, btate v, Uooavnow, tf ILLEGAL ARREST. Sco Homicide. IMPEACHMENT OF WITNESS, See Witness. INCEST. 1. Ivdicimfnt. Under the statuto of Indiana against incest between step-son and step-mother, each nnist have knowledge of the relationship, and an indictment against tiie st<'p-son wiiicli does not allege that the step-niotlier knew of the rela- tionship is bud on a motion to quash. Jiuttmer v. State, CHtahliHhtMl by a prcnonucranci' of t^'stinioiiy uiui is not rt-quired to be proved beyond a reaaonable doubt. I'lupk v, W'ilsi,,), 2. Same. WluTt' insanity is roliod on as a defenso to a cliarfff of ninrder, tlu^ defendant must siitiHty the jury that he wiw insane at the time of the kdlinjf, A doiilif, ns to his sanity is not suflicicnt. Lynch v. Commonwinlth, 'Js:j 3. Doiiht of sdiiiti/. A charjife that " if the jni-y have a rcmonable donbt of the Ranit> of the pris- oner at the time of the killiiiti:, they cannot convict" is properly refi 1. Oiiurin v. CommonweaUh, 4. Proof of insauitt/. To justify an acquittal, in cnsea of homicide, on the ground of insanity, the evi- dence must be sutlicient to satisfy tlie minds of the jury that the respond- ent was insane at the time of tlio' killinjf. A doubt is not tfutHcient. Ibid, 5. Evhlence. Evidence that the rcsjwndont was insane "on the niprlitof the third or tho moniinff of the fourtii of January," when this is all the evidence thiit he wius ever insane, and where there had Iwen evidence that he wjis never insane, has no tendency to prove that ho was insane on the mornintf o' the second of January. Sullivan v. People, fiVJ INTENT. See Adultekt. Assavlt with Intent to Kiix and MunnKU. Huuoi.arv. Evidence. Ionokance op the Law. Laucknv. JUDGE. Difiquallfcation of judge hy relationship. A judge who is related to the prosecutor by marrinsrp is not incompetent to sit on the trial of a criminal case. He is not related to a party, ycwmaii r. State, 1V3 JURISDICTION. Jurisdiction of acts in another state. Whether a pi'rson who in another state becomes accessory before the fiict to a felony committed in Kansas ciin be p\mished under the Kansas statutes, having done himself no act within tlic stiite, quiere. State r. Cassady, 507 JURY. 1. Jury of thirteen. Where, by mist.nko, thirteen jurors are impaneled and render a verdict, tho verdict will be set aside. // HeemH that, if tlie last juror sworn on a jury of thirteen could be pointed out before the jury retired, he might be dismissed and the trial proceed. Dullard c. State, bll INDEX. 701 2. •/«>•»/ to take hw frotn the rnurt. On the triiil of a criniiniil am; the juiy arc not judpos of the lfi«-, hut it Is tho thity (if the jury to accept and act upon tlie law ao given them by tho court. Hamilton e. People , ^8^ 8. VoUiWi/ JHI'IJ. In a criminal cast> the respondent hw a le^'al riiifht to poll the juiy at the proper time, and it in not within tiie diwretio'naiy power of tho coiu't to refuse it. Tiie iiropcr time to p 9. Property outside of store. Stealing property hanging at and outside of a store door is but simple larceny, and is not larceny irom a house. Martinez r. State, 4}o 10. Larceny from house. Where a bale of cotton was stolen from an alley way outside of a Wofclmuse and not in a warehouse, it was held that the defendant was guilty only of simple larceny. Middlelon r. State, " '4-jj 11. A charge that " if the bale of cotton wa.s in front of the warehouse, and innler its control and protection, stealing it is the same offense as if the Ijale of cdt- ton were iRtually within the wsUls of the warehouse," is eiror. Ibid. 12. Asportation. On a trial for hirceny from the riei-son. it ajiiViired that respondent put his hand into the prosecutor's i)Ocket iuid tortation, and that resi)ondeiit was guilty nf larceny. Flynn v. State, '424 13. Tiirowing goods off a railway train in motion, with a felonious intent to pp- propriate them, is larceny. Price r. State, 4'2'J 14. Larceny hy finder of lost ijoods. If the finder of lost gocMls. at the time of taking them into his j)osseesion, knows, or has thi.' reasonable means of ki'owing or ascertaining, who the owner is. but intends at the time to appro()ii;>ie them to his own use. and deprive the owni-r of them, he may Iw found guilty of huxeny. Comwon- tiealth r. Titut (and see note, p. 41X), 410 15. If the finder of lost goods has no felonious intent at the time of taking them into his iMissession, a subsequent conversion of them to his own use will not constitute larceny. Ibid 'f?:'f? W' INDEX. 703 ii I, 16. Efidence. On a prosecution for stealing a horse and carriage, evidence that respondent, ii young man, uiissing along the street late at night, seeing the horse and carnage standing in front of the owner's house, got in and drove off, and that the home and caiTiage were found abandoned in the road next day aev- end miles from where they were taken, the horse much exhausted from driving, and tluit respondent gave no notice to the owner or to any one where thoy might bi' found, is sufficient to sustain a verdict of guilty. State t". Dae is, oDsi 17. Efidence of oiniership. Tlie note was payable to W. or order, and was by W. indorsed to H., and by H. indorsed in blank, and it had been left by 11. at a bank for collection. The information described tlie note as the property of H. Held that the fact of its being indorsed by H. did not necessarily show that H, was not still the owner, and that the judge below, after instructing the jury that the note must have been delivered by W. to H. properly left it to them to say from all the evidence, whether W. haddeUvered the note to II., and whether H. was still the owner. State v. Fenn, 1378 18. Evidence of value. And held that the judge properly charged the jury that the state was bound to prove the note to be of some viUue, but that they were not limited to dkect evidence on this point, but might consider any evidence fi'oui which the value miglit be interred. Ibid. 19. Description of note. The note was des''ribed in the information as " a certain promissory note dated November (i, 1872, signed by the defendant, for the payment to W. or order, of |'J,;'>UO on the 1st of May, 1872, value received, a more full description of which is to the attorney for the state unknown." Held to be sutliciently de- scribed. Ibid. 20. Variance. The note was in fact for $2,300 and interest and all taxes. Held not to be a fatal varianie, i.li tliat is required being such substantial accuracy as shall mak" the identity of the nott; unquestionable, luid protect the accused from another prosecution 'or the same ott'ense. Ibid. 21. And held that the defendant, who wrongfidly took the note and destroyed it, should not be permitted to say that it was not described with the utmost particularity. UM. 22. Evidence. On a trial for larceny of a I'lO-bill, evidence that the prisoner two months after- wards jia^itied a similar l)ill, and asked the person to whom he paid it not to tell where he got it, is admissible. State v. Bishop, 094 2:i. Same. On a trial ff)r larceny, evidence that third persons in no way connected with tho case, and against whom there is no proof, had opportunity to steal the money, is inadmissible. Ib'ikl. 24. Same. On a trial for larceny of a $50-bill, where it appeared *''^<^ the prisoner had iKtxsed a similar bill, evidence tending to show that he had no means but his labor, and could not have received it for his labor, is axlmissible. Ibid. 25. Larcenif hy servant. Tlie iirisoutM-, being the agent of the American Express Company in the state or Illinois, received a sum of money which had been collected i)y them for a customer, and put it into theh safe, but made no entiy of its receipt in their ii 704 INDEX. books, as it was his duty to do, and afterwards absconded w-ith it to Can- ada, where he was arrested and tried under a statute against the bringing into Canada of property stolen in a foreign countiy. JleUi, tliiit he was guilty of larceny, and was properly convicted. Keg. v. Ilennensy, 403 26. liccent possession. A charge that " the iiossession of stolen goods recently after they are stolon is a strong presumption of guilt," is not eiTor. I'osacssion of property recently stolen makes out a pr'iHia faeie case of guilt, and throws upon the defend- ant the burden of explaining that possession. State r Cnssadi/, 667 27. On prosecution for larceny, evidt?nce that the defendant ottered to settle the case by paying the prosecutor the value of the stolen property, and that he otfereil the constable money if he could get clear, is adiuissiblo as testiiuoiiy to show guilt. lieij. v. Stan; i^ii 28. The possession of stolen property, though not shown to be a recent possession, is held, in connection ot other facts in tliis case, sufficient evidence to supiioit a con\iction of larceny. Ibid. 29. EJfecf of recent possessio}). It i-s not error to refuse to charge that " possession of stolen goods, without oth- er evidence of guilt, is not to be regarded as presumptive evidenci.' of bur- glary," in a case where there was other evidence of guilt. Vrinee r. State, 645 30. Effect of possession of stolen propertif. On a trial for burglary and larceny, wiiere evidence was given that the respond- ent was found in possession of the watch and chain stolen, within forty hours aftt-r the burglary, it is eiTor to charge that if the jur,- believes this fact, the law presunii-s that he is the thief and that he has stol"n the watch and chain, and he is bound to explain satisfactorily how he came liy tlie goods. .S7((/(' r. (Irares, 429 31. The rule in North Carolina as to the effect of the possession of stolen property is this: " Wlien goods are stolen, one found in jiossession so soon thereaf- ter that he could not reasonably have got tin; possession unless he had stolen them himself, the law presumes he was the thief." Hid. 32. Effect of recent possession. A charge which instructs the jury that proof of the jiossession of ]Xirt of tho stolen goods four months aft«r the commission of the crime, no reasoiiiiblo explanation being given Oi the poss(}ssion, shoidd be regarded as raishigii strong presumption of guilt, is erroneous. Staler. Walker, 432 33. The nde is, that recent possession of stolen prop"rty, unaccounted for, is a strong presumption or prima facie evii.lence of gudt. Hid. 34. Recent possession question of fact. What is recent possession is a question of fact, to be submitted to the jurj', except in those ciises where the court, in favor of the prisoner, can say, as a n-itter of law, that possession is not recent. Hid. 35. Effect of recent possession. On a triiU for larceny, tiw only evidence wius, that respondent was fouivl in pos- session of the stolen hoi-se a few houi-s after it was stolen. Held, that the evidence was not sufHcient to justify a conviction. I'euide r. Sovajea, 4:J6 36. On a trial for larceny, evidence of the recent possession cf stolen property is not of itself sutticient to justify a conviction. Wallack and ilcKi.NSTUY, J.T., not expressing iui opmion. Hid. 37. Evidence. Possession of a stolen pipe witliiu a week or ten tlays after it was stolen, in INDEX. 705 ith it to Can- t the bringuig il, tliat he was cnny, 403 y are stolen is Dperty ivcently HI the ilefeiul- y- d to settle tlie and that he M testimony 4:38 ■nt possession, ■nee to supjiort Ibid. !, without oth- idence of bur- riiice r. State, 64.5 t the rpspond- 1, within forty lielieves this "i\ tin; watch came l)y the 429 itolen iiroperiy soon thcmif- hu had stolen Ibid. of jirtrt of tlio no reasonable (1 as raisinj; a 432 for, is a strong Ibid. to the jury, can say, as a Ibid. fourvl in pos- 'l,diii|il(iy)>i' is not. criiiiiiiiilly n>H|-()iiHililo for an illf^il huIo of liVpior Ity liix Hfi'Viuit, niiiili' without \\m knowlrilj^'or t-oiiHcnt, uikI in violation of iKiKitivo inKtiiution.s f,'ivt'ii by him in px"! liiith. iMlhroiif r. SluW, 4(W G. Crimiivil trs/Hiiisihilil;/ of tiniiloi/rrfor HWiHthorizcii art if nermut. Under a Hi|iior Htatiit<> wliicli proliiliits all ^ah'Hof li(|iiorH by iinliccnw'il poi-Hons, an t'lnploycr iscriniinally rcHpoiisihlfforall iiiilawiiil hiiIch niiult'l)y liiH aj^enl. Till' a^ciit liaNiiolicrnsft*) sell to any oni*, aiitl it is only hiwfiil for liini to ))r*>Hiiiiiptioii iniiNt. I>i> i>ini'd coiu'liisivi' that till' ap'iit or Hi'rvant lU^tM witliiu tin; ucopo of hin aiitliority in niakiiij^ the wale. SlcCutcfifoH v. Slate, 471 7. Jhrhijut: A harkt'cpi-r is within thf ini'aiiin(; of a statiiti" proliibitiiij; any im'i-hou who I'.ci'ps lii|iior, fiijiu Hi'lliii^,' it to iiiiiioi-8, wlii'tlu'r lit; in owia'r or merely an . ... .. ... . ^^.^ I'ps lll|l t'liiployt't'. Miirshiill r. Stutf, 8. Krasion. Thf fact t hut defendant, told jm'isoiis to whom lie Hold liijiior that they muKt not drink it on his premises is of no iinixirtance, if, under the circwmstunces, lie must have known that they would drink it on tiis on'miwH, and the evi- dence in this case is hrM siitticient to justify the cuncluHion that defendant was try inj; to evade the law. Kinfiimnn v. State, 4h'4 9. (Ill ill If k'iioii\vil;/i'. In a ]iri)secution for an illei;al sale of liipior to a minor, it is immaterial whether or not the defendant knew tiiat the piirchii.ser Wius a minor. Wai.kkh and McAi.i.iMTKU, .1.1., disseiitiii|LC. McViilchvou v. I'loiili; 471 10. (iooil faith. On a prosecution for selliii); liiiunr to a minor, it is a f^ooil defense that the de- fendant was misled and ini|M>seii on, anil that he honestly JN'lievetl the minor to l)e over a),'!'. Itiit the defendant nmst prove this Uiyoiid ii reiwonai>le doiilit. Marshall v. State, 4X'2 11. (hmil faith in srllhi;/ liquor to minor. A dru^K'i'^t selling liquor to a minor on a physician's prescription in ffood faitli, thai it is to he used for medicinal purpo.ses, is ffuilty of no otl'ense. lie is as much shielded hy the spirit of the a*t iw if he were exenipt^-d from the jien- alty liy e.xincss words. Jiall r. State, 477 12. Same. ' ,l! A dru^^n'st sellin)r liipior to a minor on a )iliysician's prescription in ^'ood faith isi'H, is ifuilty of no otlense. He L) IW much shielded hy the spirit of the lU't a.s if lie were t'xempUMi from the tliat it is to Im' used for medicinal |)ur|M)seH, the lU't a jM'nalty iiy expH'sH words. Stater. H';vr//, i;{. luilietmeat. iji a prosecution for an illegal sale of li({uor to a minor, it is not newssary that the indictment should allef^e that the defendant knew that tii*! purchiiser was a minor. McCuteheim r. People, 471 14. Same. In a prosecution for sellinj; li(|Uor to Ix- dnink on the |>ieiuises, it is not nwos- sary to allej^e in the »omi)laiiit, or ty liiH )ll uf UUKlMvit 4(W int. hy IiIh ii^t'iil. for liini ttxlo ])rt>)^iini|iti()ii ill tilt; woiM! 471 y jMMnoii who or iiiert'ly an 4H2 lilt tlicy luiiKt irc.iiiiistanct'H, , iiikI tl«> fvi- lut il<;ft>ii(ltuit 4d4 <'riiil wlit'tlicr Vai.kkr and 471 > that the df>- vvi\ tin' minor a r('iu4oiia)>le in ^(K)(l faith, list', lit' is iw from tln! iH'ii- 477 [in ^'00(1 faith Hcnm'. ll<- Ls )ttitl from tins 4IW iiecAwaary that th« imrchnNt'r 471 t is not lUTOH- Lhe liquor was 4.S4 ' to have ht'oii ing yuntlay," is hail on a motion to ijiuiHh, thnc LeinK of the caacaico of the offenEC. ^- 10. VitrUmce. Uiulcr an indictment for a salt! of liunor to A., proof of a mUc to A. and li., jointly, will not justify a conviitii in. Ilroivn v. Slate, ioi 17. huUrliiftit. In a prosecution for scllrn},' liquor to a person in the hahit of Lcettin^ intx)xitiit^'d, the complaint must alTe(,ni and the pi-(K)f show that mv\\ rn-rson wu« ni tho haliit of >,'eltinK intoxieat^>d at the time the sal(! was made to him. ^<'»-''>' c. Statf. ''^•' 18. Krliliiirt: Testimony that A bought liquor of li, w cvidenco that Ji sold liquor to A llfitxiij r. Statt; ^^'^ 19. liito.rkalinif (lunlit;/ a question of fart. Whether ale or cider is an intoxicating liquor is a quCHtion of fa«t, and not of law. Stale r. liiMIe, ^'JO 30. hitoxicathuj liquor. Whether or not lager heer is intoxic, iting is a question of fact, and not of law._ KiDDi.K, C. J., dissenting. Lothrope r State. 4Jo See IU'huan!) and Wikk. LOST (JOODS. See Lauckny. MARRIAGE. ^V}lat tvidtnce is competent to prove in erimial cases. See AmiLTKKY. Riciamy. MEMORANDUM. Sec EvinicNCE. NAME or INJURED PERSON. SeoABHAUi/r ANn Ratteuy. NEWSPAPER. SOO CoNTEMl'T. NEW TRIAL. I. Motion fornew trial. AfKdavit of co-defendant, against whom then; is strong cvidepce, in not BUtficient on a motion for a new trial on the ground of newly discovered evidenw. Delnnij V State, °" !l J 708 '■ INDEX. 2. Newly discovered evidence. On the trial of an indictment for enibozzloniont, the state pave evidence that the watch embezzled was worth $U5.00. The nrisoner yave no evidence on this point. After tiie trial, it was discovered tliat the watch was not worili over f 10 or $15. No ncKlisence appoarintf on the part of the prisoner or his counsel, it was held tiiat a motion for a now tnal on this jji-ound wiis improperly ovcn'uled. State v. Foater, 116 3. Surprise. Where the testimony of the principal witness for tho prosecution on the tidal varies materially from that given by her before the committin^r justice, who was unexpectedly absent from the trial, tin' prisoner is entitled to a new trial, on the ground of surprise. Jioxlci/ r. Commonwealth, Go") 4. The fact that a defendant did not move for a new trial in tho court below will not bar a new trial on the reversal of an erroneous conviction in the supreme court. People v. Darric, 178 NOLLE PROSEQUL The power of entering a nolle prosequi belongs to tho prosecuting officer who represents the government, and not to the court. State v. Madigan, 542 ti PERJURY. 1. Perjury cannot be assigned on an oath administered by a judge of election wno has not been himself swoni. IVnjgerstaff r. Commonwealth, 407 2. Amount of evidence required to sustain conviction, On a trial for pei:iury to justify a conviction on the evidence of one witness, it is not necessarj' that such witness sliould bi' cDi-robonit^'d liy additional circuin- stances equivalent to the oath of a second witness. 'J'ho evidence; to sustain a conviction must be sometiiing more than siiHicient to coiintfrbalanoe tiie oath of the prisoner and the legal presumption of his innocence. Stair r. Heed, . . 5U'2 3. Indictment. Where, in an indictment for peijury, it was nlli-ged that the dcfcndnnt, dur- ing a judicial proceeding, etc., had falsely sworn to ci'rtain statements, and then i'mmediaWy followed an allfgation that certain of sucli stateiuents were untrue, and there was no allegation that the statements, thus aloiu? denied to be true, had been material to the issue on trial, nor did they of themselves apjwar to have bei n material : 7/rW, that tiie indictment was demurrable, and should have been qua.shed. llcmbree r. Stale, 501 4. Materiality of testimony. A person not only commits perjurj; by swearing falsely and <'0iTiii)tIy as to tiie principal fact which is directly in issue, but also in swearing falsely and cor- ruptly to a circumstance materially tending toestablisli ordisiu'dve such fact; and this is so without regard to the <|uesti(iii whi-tlier such luineipal fact does or does not exist. It is as much perjury to estaliht ii the trutii by I'lilso testimony as to maintain a fiilseluMxl I)y false eviilence, and the fact tliat the former may lead to a con-ect decision Ls imiuatt.'rial. Com, v. Grant, 500 PERSONAL RECOGNIZANCE. See Rtjcoonizanck. r -i T INDEX. 709 ridcnce that evidence on us not worth ■ prisoner or ^ 116 on the trial justice, who •d to a new court below iction in the 178 f officer who 'gan, 542 t) of election k, 497 witness, it is onal circnni- cn to sustiiin rbiihince tiie ce. Stall' r. cndant, din- tennMits, iiiitl 1 statenicntu 1, tints alon(^ did tlicy (if licbneut was 504 itly an to tlio sely and cor- ive such fact; rincipal fact ndii liy false nal liv h.' fact that Gnnil, 500 PHOTOGRAPHY. See Homicide. PLEA.. See AniiAiaNMENT and Plea. POLICEMAN. It appoarinff that respondent wob a policeman, the court will presume that ho pToSf the ordiiiary powei-s of a pe.«;e officer. Doehnng v. State, 60 POLLING JURY. See Jury. PRACTICE. 1 rrcfcvce of respondent in coini. , , . .i mined. State v. Undencood, 2 rreson(lcntontmlformmlemeamr. higton V. Ilciland, fatiUly defective. Cory v. State, 4 Fraiuhdenthi disiMsing of motigaged propetig. . •* • „f state, 5 Proceedings on appeal after prisoner's escape. Wilson V. Commonwealth, ",M'3 ™MT,t""fi Um» J.» ekp.ed for the capt« or surren- der of the prisoner. Moore v. State, 1 DkcJiaraind jnrii on Sundag. ,. Tlfeccurmfy adjudicate on Sunday that a jur>- cannot agree, and tl.en dj- charge them. People v. Lightner, 710 INDEX. 8. Recharg'inff jury in ahsetiee of connsel for respondent. After the jury have been charfjed and rctinxl, it is eri'or for the court to recall and recharge the jury in the absence of the coJiuMel for tlie resirondent, witliout liis consent. It is an infringement of the constitutional right of the respondent to have the privilege and benetit of counsel. Mmiin v. Stnft', bm 9. E'-roneoiiS Joint verdict. Where there is a joint verdict and judgment atrainst sevt'ral, which is erroneous iw to one, against whom there wiw no evidence, the judgment nmst be re- versed aa to all. A nolle prosetiui should have been cnk'red as to the one against whom there was no evidence, or a verdict of acquittal rendered in his favor. Isaacs v. State, lOii 10. Verdict as to three set aside as to tiro. A joint verdict as to three, eiToneons as to two, against whom there is not suffi- cient evidence, may be set aside as to those two, and allowed to stand as to the third, against whom the e\-idence is sufficient to sustain the verdict. Seboni v. State, 697 TRELIMINARY EXAMINATION. 1. Irregularity of preliminary examination. A plea in abatement to an information, filed bv a prosecuting attorney and based upon the return made to the circuit by a committing i.iagiwtrate, which alleges that a part of the examination was had on a legal holiday, is bad. Hamilton v. People, 618 2. A preliminary examination for the purpose of iiolding to bail is not a judicial proceeding, and mere iiTegularities do not vitiate it. Ibid. PRESUMP1^I0N.S. See Evidence. Fokoeuy. Homicide. PROSECUTING OFFICER. '( hH 1. On a criminal trial for homicide, it is error for the court to allow counsel for the prosecution in addressing the jury to comment on the frequency of that crime in the community, luid say to the jury tliat it is due to the lax administration of the law, and urge them to make iin example of the respondent. Ferguson v. State, 582 2. It is error for the court to allow a prosecuting officer to use this language in ad dressing the jury: " The defendant Wiis such a scoundrel tliat he was com- pelled to move his trial fiom Jones county to a county where he was not known." State v. Smith, 580 3. It is error for the court to allow a prosecuting officer to use this language in ail- dressing the jury: "The bold and brazen-faced niscal had the impudence to write me a note yesterday, Ijeggin^ me not prosecute him, and thivaten- ing me if I did, he would get the legislature to impeach me." Ibid. 4. It is the duty of the court to protect tlic prisoner from unreasonable and unfair statements and arguments. Ibid. 5. CotTupt agreement. An agreement with a prosecuting officer that if respondent will plead guilty to an infonnation, resiMindent shall not be prosecuted on another informa- tion then pending for a lik'' ott'ense, is a cori-upt a{xreemeut, and entitles the respondent to no indulgence or relief. Golden v. State, 586 lue to the pic of tin; 582 INDEX. 711 6. Proaecution hy imvate counsel. Counsel employed and paid by priTate parties wiU not be allowed to prosecute in a criniinal caae, against the objection of the respondent, especially where the private party ha« a pecuniary interest in the conviction ot Uie accusexl. Meisterv. People (and see note, p. 102), *"• 7. Preliminarii Examination, Preliminary examinations on charges of felony may be conducted by counsel employed and paid by private parties. ■''"«• PROSTITUTION. See Abduction. PROVOCATION. See Homicide. PUBLIC RECORDS AND DOCUMENTS. See Evidence. RAPE. 1. Evidence of precious acta of illicit intercourse with prosecutrix. On a trial for nirx', where the prosecutrix testified that at the time of the act, he wL un«.nsl-ions and did not know whether defendant hiul ravished her. and a physician who examined her had been allowed to testvty that some- bo lyluid had sexual int*'rcourse with her, it was held that the rcbpondenl hiul a ri-'ht to prove previous particular acts of sexual mtercourse between the prosecutrix and others. Shirwin v. People, w^W 2. Sufflciencif of evidence. a, ■ t i The evidence set forth in the opinion in this ca.se was held, insufficient to sus- tain a conviction for rape. Jioxle;/ v. Commonwealth, boo 3 Withdrawal of consent once given hi/ prosecutrix. On the trial of a man for rape on his step- daughter, a girl twelve years of age, andsmallot' her age, it was held, that a charge that "if the gir , in the hi-st Sanceconsented to the sexual int«rcoui-se ^vith the i-espondent, but if after the commencement of the sexual intercourse she Nvithdnnv her consent, and the n-'spondent forcibly continued it with knowledge of her dissent this would L rape," w.v. proper, and not error under the cu-cumstances of the case. State v. Niles (and see notes, pp. 649, 660), ow 4. Complaint. ... A complaint by the prosecutrix made two months after the commission of a T^p^ is admissibleVinst the resi^ndent on a trial for rape. Ihid. 5. Particulars of complaint not admissible. , , -u 4. tu On a trial for rape the prosecution may give in evidence the fact that the prosm trS^nuJle her complaint cliarging that the offense was committed, Ct it is ciTor to admit the particulai-s of the charge or the name ot the per- son chiugcd by her. See Assault wrru Intent to Commit Rape. ri2 INDEX. REASONABLE DOUBT. It is tho duty of tho court wlitni chamnf? tho jury that they must bo sntiHficd beyond a n'lisouablt' doubt of tno rosiKjndent's (fuilt to exphiin wluit w ii rt'iujonablu doubt. State r Jlvid, 602 KECAFnON OF STOLEN niOPERTY BY FORCE. Sec Assault and Battkky. RECENT POSSESSION OF STOLEN PROPERTY. See BuuoLAUY. Laucenv. RECOGNIZANCE. Payol refmjnizntice, A parol prniiiisc to apjioar bcforo a public inaffistratc has no legal validity or binduig force. Citif of liloominyton v. Jlfiluiu!, 60U RECORD. 1 . It must affiniiativcly ai)poar on the record that an indictment was returned into court. Ai/lcsirorth c. I'eojJc, 004 2. Where the record does not showafrirniatively that before sentence Wiis pro- nounced the resiwndent was asked if he had anythin^r to say why sentence should not be pa«sed upon him, nentence will 1m! reversed and the prisoner remanded to be sentenced afresh, )«ut the verdict is not allected. McCue r. t'oinmoHiridlth, 2()S 3. Judgment will be reversed when the record doc's not afhnnatively show that tiie respondent was jiresent throuyhout the trial, and when the verdict was rendered. Stithhs r. Stale, 60S See AUUAIGNMENT AND Pl.EA. li; ROBBERY. Eridence — lies gcstw. On a trial for robbery, whore tlio prosecutor swore t/i havinpr l>oen knocked down and rolibed, it is competent to prove by witnesses wlio came up im- mediately, that he then told them lie had Ijeen robbed. Such a statement is a part of the res (jentw, Lambert v. People, 000 REPUTATION OF Dni.r.ASED. See Homicide. SEDUCTION. 1. WIuU h seduction. To constitute the crime of seduction, tho woman must, relying npon some sutfi- cient promise or inducement, be drawn aside from the path of virtue she was mDEX. 713 act Heduction. reoph v. Clark (iind sue nolo, p. bbi), 2 Prior acts of iUlcit intercourse hy prosecutrix. Hlie Imd had ilUcit intorcourso with unothor. 3. Attempt to entrap respondent into marriage. iinpoi-siblt'. evidence as to the other iicts charged IS admissible. -«<"«• 6. Irrelevant evidence. . , On a trial for seduction, evidence of.Ulicit i"t.n-course between tlie paxiies sub stMuent to the lUleged seduction w uri-elevaut and inaduubsible. Hid. SELF DEFENSE. Sec Homicide. SENTENCE. a fonncr sentence. I'rincc v. State, 2 Siiv>ended sentence -Sentence hy a judyc who did not try the cause Z. buspemitii pi,nv,rc of mahc oas njury to a dwolhnp, son- Whero nnon a plea ^^.f " \ ^^^^^if ^^^^^ erm, and the prisoner allowed to go tenccilias l«"en «">^J'«'"''«} ""^^ "'i^^ "'oniiiva^ and the sutsequent term on his "-" "XriS uS &^^^^^^^^ til, it is not conVtont for StE^Sir^si »^ta;Kt ^i^^ KtlKKiaS Ss£?.Ja^^S^y overruling liis decEL. ]feaver v. Veople, Citaiccd afe'.li. Stale f. (lra,j, \» 714 INDEX. 4. Impriaontneiit in lU/aiiU of fine. Power to puitish by finu or i in prison luont tlooH not include power to imprison in default of payuiunt of a tine. Jiriesuick v. Muijor, etc., v/ lininmkk, 55U SILENCE AS AN ADMISSION. SOO A0MI8HION8 AND Co>'FKHSlON8. STATUTES CONSTIIUED. See AnoiiTioN. Assault and Batteuy. DuiiNiNa. Kmoezzlement. Lti^uun Sei.linu. STATUTORY C'( >NSTIlUCTION. 1. Altlionjfh it is >?oncralIy tnio that wlicro tlie IfKHslatiiro adopts 8uV«tjintially the statuU' of anotlit'r state, it is prfsinncd to adopt also tiie oonHtniction prtvi- ously ffiven to it by the courts of that stat*!; vi't tlie It'tfiHiature will not Ito piTsuiued to have lulopti'd sufli construetioii where such eonstnution is in- consistent with tiie spirit and jiolicy of the laws of the state luloptiiif,' tlie statute. McCutcheon i\ I'lopli; 471 2. Statutes are to be interpret^vl iut«rdinK to their natural and obvious ineaninj;, and where there is no anibij^uity in the luiiffuaKe' and its lueaiiin^j ami nur- lX)se are clear, courts ure not autliori/.ed either to limit or exttind thelan- yuaye of the act by construction. Cvarfoxn t: Sttite, 400 STEP-FATHER. See AssAUL'i and Datteiit. SURPRISE. See New Tkiaj,. y SUSPENDED SENTENCE. See Sentencc. SUSTAINING IMPEACHED WITNESS. Sec Witness. TENOR. See Fouoeuy. VARIANCE. See Assault with Intent to Commit Rave. Forokuy. Larceny. Liquor Selling. INDl^. 715 wcr to impriaon in \)f Umnmick, WO EMDEZilXEMENT. VENUE. 1 Chunrjeof i'ef»if, stittutc constnu'd, . , .. i „ lueiitioneci. Slate v. Underwood, ^!;;«»„t e™ h.vo but one *3,ot 3^^^^ fom unoUier jua«c oii the Hiiiue ground. Line v. biate, ptfl8uV,stantiallytlio ! constniction im-vi- l^wlaturi! will not In? constnution ih m- Htate luloptiiif,' W] An 111 obvious nn'iinins?, ts nnninintr und Pur- it or exUsnil the lan- 4oU :ss. . L-vncKN-Y. Liquor VERDICT. {he Sunt charging the higher otlense. Esles v. btatc, ^ 2 Corrertha ilteffal verdict. , ■, , • \ l the iwiue. Stide ». Umhop, 'i.^SST:SsKoSS'52SX»5sSi McCoj r. Stale, ^nEl'h;:Ue^-.t against '^POn'^f^^.&^g ^"^ «« ^'^"^'^' "" '"S of guilty M acccdeory after the fact is illegal. See Practice. WAIVER. 1 Asking time to plead is equivalent io pleading in wai^'ing defects in tiie^^- raigument. People v. Liijlitnet; 9 Oblrct'wti not made at trial. i • i i.i „*. Slate, WAREHOUSE. otto »* an.; ™'" 7 « ;' X"a toSwr with about two «CR'« of land, K,fuSff Si'ff^S'S^t «' satos of wMch a,., kept locked, « a wai-eliouse. ISeiiuett v. Stale, ^ 716 INDEX. WARRANT SIGNED IN BLANK. Sec Homicide. u i y& WITNESS. 1. Capacity of child as witucss. A pirl whom tlio court by inspection dcterminccl to be between nine and ten yeiirs old, beinfjr ottered as a wtnes?, was object by personal inspection and oral examuiation, and hLi decision iu not subject to rerision . Ibid. 3. Impeachment. In iiupenching the character of a witness, evidence of tlic bad repute of his family or associates is urelevant and ijiatlmissible. Kean v. Commonwealth, 199 4. Impeaching question. It ia proner to ask a sustaining witness on cross-examination, whether he had siiid lie would not believe the impeached witness under oath. Ilainilton i'. State, GIS 5. It is proper to ask an impeaching witness who hiw testified to the bad repu- tation of an impeached witness for tnitii imd venwity, whether" from fliat reputation Ije would believe the hnpeaciied witness under oath. Jbid. C. Siu'itaining impeacJied witness. It is not conipi'tent to sustain the credit o< a witnef^s, who h;w boen inipeaclied by jn-oof that he had mailo ditt'erent statements, of the circumstances t< stitied to by him on tlie trial, by evidence of his gfnoral reputation for truth and veracity. I'eojjle v. Olmstead, 'Ml 7, Same. Wluni tiw chara^tor of a witness I\as been attacked In* evid>^nce tlmt he has been convicterl of felony, it may lie sustiuued by "vidence of hi' general reputation for truth and integrity. People i: Amaneas, I!.(7 8. Cross-e.fa»i illation. Tlie respondent ha.s a right on cross-examination of a witness forthe provectitor to draw out from him c idence which tends to contradict mat<'rial evidi'nco which hiis been given by another witness forthe prosecution. Hamilton v. State, CIS i-oen nine aiul ton ioing exiUiiiiuHl as u'htoned, smd suid ir obligation of an faisfly. On a ro- jondent, knew her ; wronjj; to toll ui'hj f, Saoihiii, 1>^5 if f!U!t, tobedetoi- l examination, and Ibid. i bad repute of his lit', CommonwvifUli, 1 JJ ion, whether he had oath. Iluiiiiltonj. CIS ed to the bad remi- . whethei- from tliat er oatli. Ibid. hiifl boen impeaehed ircnmstances t( stitiet' utation for tnitli and I pvidencft that he has idence of hi- geiieiul „osb for the prosecutor Uet niat4M-ial evidenco icution. llmwUon V.